Green v. Brantley, Civ. A. No. 87-CV-669-JTC.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
• Writing for the Court: CAMP
• Citation: 719 F. Supp. 1570
• Parties: John E. GREEN, Plaintiff, v. J. Kenneth BRANTLEY, Edgar V. Lewis, Craig R. Smith, and Garland P. Castleberry, Defendants.
• Docket Number: Civ. A. No. 87-CV-669-JTC.
• Decision Date: 20 January 1989

719 F. Supp. 1570

John E. GREEN, Plaintiff,
v.
J. Kenneth BRANTLEY, Edgar V. Lewis, Craig R. Smith, and Garland P. Castleberry, Defendants.

Civ. A. No. 87-CV-669-JTC.

United States District Court, N.D. Georgia, Atlanta Division.

January 20, 1989.

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Gerald Cunningham, Office of Gerald Cunningham, Atlanta, Ga., for plaintiff.

Myles Eric Eastwood, Jones Brown & Brennan and James Randolph Schulz, Office of U.S. Atty., Atlanta, Ga., for Brantley, Lewis, Smith and Castleberry.

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ORDER OF COURT

CAMP, District Judge.

This matter is before the court on defendants' motion for summary judgment. This action is a Bivens action based on a Constitutional Tort.¹ The defendants are federal employees who are being sued in their individual capacities. Plaintiff alleges procedural due process violations based on the Administrative Procedure Act, 5 U.S.C. § 558(c), and the Fifth Amendment of the U.S. Constitution. Plaintiff further alleges a civil conspiracy claim against three defendants for allegedly conspiring to deprive the plaintiff of his First Amendment free speech rights. For the following reasons, the court GRANTS IN PART and DENIES IN PART the defendants' motion for summary judgment.

I. STATEMENT OF FACTS

This action involves the termination of plaintiff John E. Green's flight examiner status. The plaintiff served as a designated flight examiner for the Federal Aviation Administration ("FAA") for twelve years. The FAA is a component of the Department of Transportation. See 49 U.S.C. § 1652(e)(1) (1977), (repealed Jan. 12, 1983). Flight examiners conduct flight tests both for certification of commercial pilots and for aircraft and instrument ratings. Although flight examiners serve as representatives of the FAA, they receive their compensation by charging the examinee a reasonable fee for conducting tests and completing the required reports. See 49 U.S.C.App. § 1355(a).

Flight examiners can only conduct such flight tests under "Certificates of Authority" granted by the Federal Aviation Administrator. See 49 U.S.C.App. § 1355(a) (1976 and supp.1986) (empowerment of an Administrator to certify private persons as administrators). Flight examiners are appointed for renewable periods of one year. See 14 C.F.R. § 183.15(a). However, 14 C.F.R. § 183.15(d) enumerates six circumstances under which the designation may be terminated during its one year duration.

Plaintiff's activities as a flight examiner were supervised by the Mid-South Flight Standards District Office (hereinafter "Mid-South FSDO"), which supervises the examiners in the Atlanta area. Defendant J. Kenneth Brantley is an Operations Inspector at the Mid-South FSDO and conducted the investigation of plaintiff. Defendant Edgar V. Lewis is the Operations Unit Supervisor of the Mid-South FSDO and the immediate supervisor of defendant Brantley. Defendant Craig R. Smith is the Manager of the Mid-South FSDO and the immediate supervisor of defendant Lewis.

In the present case, plaintiff's designation was due to expire on December 31, 1986. Defendant Smith cancelled plaintiff's designation on August 15, 1986, over four months prior to the normal expiration date.

The cancellation of plaintiff's license arose out of an investigation conducted by defendants. In early 1986, defendant Brantley initiated an investigation of the pilot examiners' program under the jurisdiction of the Atlanta Flight Standards office. Brantley reviewed plaintiff's monthly activity report which showed times spent on each flight check. Defendants Brantley and Smith considered the time spent on each flight check inadequate and the total number of flight checks given on particular days too numerous to have been properly conducted. Defendants also had complaints indicating that plaintiff was not conducting the flight tests in accordance with the required time standards.

In early June 1986, defendant Brantley informed plaintiff that he was being investigated. Brantley Affidavit, ¶ 27. Plaintiff, however, was not presented with specific charges at this time, but only told that there was concern over the brief manner in which he had conducted flight tests. Green Deposition, pp. 24, 45, 59, 122; Brantley Affidavit ¶ 27 and Attached Exh. C; Smith Affidavit, Attached Exh. A (Plaintiff letter of 6/12/86) and Exh. B. In fact, Brantley stated in his deposition that

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he did not advise plaintiff of the specific charges because "he would just deny it." Brantley Deposition, pp. 160-62; 179-81. See also pp. 131-33. Smith stated in his deposition that plaintiff was not given the opportunity to respond because "it did not seem pertinent at the time." Smith Deposition, p. 32. Thus, plaintiff was neither apprised nor given the opportunity to examine the records and complaints upon which such charges were based. Id.

On June 12, 1986, plaintiff wrote to defendant Smith requesting that he be informed immediately of any charges and any evidence against him. Defendant Smith replied on June 13, 1986 and refused to make available evidence used in the investigation or delineate specific charges. Smith Affidavit ¶ 10 and Attached Exh. B. Plaintiff made another written demand for evidence used in the investigation and a request for the identity of the two complainants. In early July, 1986, defendant Brantley called plaintiff and informed him that he was to be at a meeting the next day to discuss the investigation. Plaintiff attempted to obtain an alternate date due to the fact that he was booked with check rides the next day. Defendants, however, refused to reschedule the meeting.

On July 7, 1986, defendants Lewis and Smith met with plaintiff. Lewis refused to allow plaintiff to bring an attorney to this meeting. Defendants maintain that plaintiff was told that the time spent on his flight checks was insufficient and that there were numerous written and oral complaints concerning deficiencies in his conduct as a pilot examiner. Defendants also contend that plaintiff was informed of complaints regarding his language and abusive behavior while conducting check rides. Defendants contend that plaintiff was advised of specific charges at the meeting and in a letter that he was given at the conclusion of the meeting.

While defendants contend that plaintiff was given an opportunity to present his position at the meeting, the defendants' own evidence indicates that defendants did most of the talking at this meeting. Smith Affidavit, ¶¶ 16-21. Moreover, plaintiff was never appraised of the statistics, records, and complaints upon which the charges against him were based, making any response uninformed. Id. Thus, plaintiff was not presented with any specific charges because he was not given any of the documents used in the investigation. Smith Affidavit, ¶¶ 16-21. Plaintiff contends that the allegations against him were only discussed generally. Moreover, defendants refused to allow plaintiff to bring his attorney to the July 7, 1986 meeting, even in an advisory role. Green Deposition, pp. 106-07.

On August 15, 1986, Smith terminated plaintiff's Certificate in view of reports, records, and public complaints received by his office. Defendants Smith, Lewis, and Brantley determined that it was not in the best interest of the FAA nor the general aviation public and public safety for plaintiff to continue as a designated pilot examiner. Ronald R. Hagadone, Regional Counsel for the FAA, and Eddie Thomas, an attorney in the Office of the Regional Counsel, advised Smith that plaintiff's designation could be terminated without a formal hearing. Smith Affidavit, ¶ 24.

On August 19, 1986, plaintiff's attorney notified defendant Castleberry, Director of the FAA's Southern Region, of plaintiff's problem and requested him to intercede. Plaintiff requested the opportunity to respond to the termination before he lost his license. Defendant Castleberry, however, refused to intercede.

Plaintiff filed the instant action in April, 1987. Plaintiff seeks monetary damages from the defendants acting in their individual capacities. Plaintiff alleges a cause of action for deprivation of his liberty and property interests without a due process hearing in violation of the Fifth Amendment and in violation of the Administrative Procedure Act. Plaintiff amended his Complaint to add a charge of civil conspiracy to violate his First Amendment rights by retaliating against him for testifying against the United States of America.

The defendants have moved for a summary judgment. First, defendants contend that revocation of the plaintiff's flight examiner's

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certificate did not require procedural due process pursuant to the Administrative Procedure Act (hereinafter "APA") or the Fifth Amendment. Defendants contend that the flight examiner's certificate does not constitute a Fifth Amendment property or liberty right and is also not a license under § 558(c) of the APA, which require certain due process protections. Second, defendants argue that even if plaintiff's certificate is a protected liberty or property right under the Fifth Amendment or a license under the APA, the meeting afforded plaintiff before the termination of his certificate satisfied procedural due process standards. Defendants finally argue that even if they did not afford plaintiff adequate due process, they are immune from suit under the doctrine of qualified immunity

II. THE PLAINTIFF'S RIGHT TO NOTICE AND A HEARING

As previously stated, the plaintiff's certificate as flight examiner was terminated during its one-year period based on 14 C.F.R. § 183.15(d)(4) and (6). This regulation enumerates six circumstances² wherein a flight examiner's designation may be terminated during its one-year period.³ The regulation does not, however, address the manner by which termination during the one-year period is accomplished.

The plaintiff contends that before a designation may be terminated for any other circumstances...