Pucciariello v. United States

• Decision Date: 02 June 2014
• Docket Number: No. 13-590 C,13-590 C
• Parties: CARMINE J. PUCCIARIELLO, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: Court of Federal Claims

CARMINE J. PUCCIARIELLO, Plaintiff, v. THE UNITED STATES, Defendant.

No. 13-590 C

United States Court of Federal Claims

Filed June 2, 2014

Contract; Fifth Amendment

Taking; Preemption of Tucker

Act Jurisdiction by 49 U.S.C.

§ 46110 (2006); Jurisdictional

Effect of Failure to Concede

Lawfulness of Government

"Taking"; Failure to State a

Claim for Money Damages;

No Jurisdiction to Award

Equitable Relief under 28

U.S.C. § 1491(a)(2) (2012).

Michael Moulis, Fort Lauderdale, FL, for plaintiff.

Russell J. Upton, United States Department of Justice, with whom were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and Reginald T. Blades, Jr., Assistant Director, Washington, DC, for defendant. Bradley J. Preamble, Office of the Chief Counsel, Federal Aviation Administration, Washington, DC, of counsel.

OPINION

BUSH, Senior Judge.

Now pending before the court is defendant's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC). That motion has been fully briefed and is ripe for decision. Oral argument was neither requested by the parties nor deemed necessary by the court. For the following reasons, defendant's motion to dismiss is granted.

BACKGROUND¹

In this lawsuit, Plaintiff Carmine J. Pucciariello² seeks damages, as well as injunctive and declaratory relief, based upon the Federal Aviation Administration's (FAA) decision to terminate plaintiff's appointment as a designated airworthiness representative (DAR). Plaintiff alleges that the FAA, in terminating plaintiff's appointment, breached a settlement agreement pursuant to which the FAA had promised to appoint plaintiff as a DAR. In addition, plaintiff alleges that the FAA's termination decision resulted in an uncompensated taking in violation of the Fifth Amendment to the United States Constitution.

I. Designated Airworthiness Representatives

Congress has charged the FAA with the responsibility to prescribe air safety standards, including certification requirements for aircraft, pilots, airports, and airlines, in order to "promote safe flight of civil aircraft in air commerce." 49 U.S.C. § 44701(a) (2006). To that end, Congress has authorized the FAA to "delegate to a qualified private person" the authority to issue certificates identifying aircraft as airworthy, and to conduct inspections, testing, and examinations necessary to issue such certificates. 49 U.S.C. § 44702(d)(1) (2006). Pursuant to its statutory authority, the FAA Administrator has appointed a group ofprivate individuals, called designated airworthiness representatives (DARs), to perform these tasks. See 14 C.F.R. § 183.33 (2013). DAR appointments are for one to three years, and are renewable at the discretion of the Administrator. See FAA Order 8100.8D, ¶ 1414 (Oct. 28, 2011), available at http://www.faa.gov/ regulations_policies/orders_notices/index.cfm/go/document.information/document ID/1019601.³

Under 49 U.S.C. § 44702, the FAA Administrator may rescind, or choose not to renew, a DAR appointment "at any time for any reason the Administrator considers appropriate." 49 U.S.C. § 44702(d)(2). The FAA, in its implementing regulations, has delineated certain "appropriate" reasons justifying termination or nonrenewal of a DAR appointment:

(1) Upon the written request of the representative;

(2) Upon the written request of the employer in any case in which the recommendation of the employer is required for the designation;

(3) Upon the representative being separated from the employment of the employer who recommended him or her for certification;

(4) Upon a finding by the Administrator that the representative has not properly performed his or her duties under the designation;

(5) Upon the assistance of the representative being no longer needed by the Administrator; or

(6) For any reason the Administrator considers appropriate.

14 C.F.R. § 183.15(b) (2013); see also FAA Order 8100.8D, ¶ 1105(b) (stating that "[d]esignation is a privilege that conveys responsibilities, but does not implyemployment or other rights unrelated to FAA needs," and incorporating the bases for termination of a DAR appointment as set forth in 14 C.F.R. § 183.15(b)), ¶ 1108(a) (stating that "[a] designation is a privilege, not a right," and "therefore[] the Administrator has the authority to terminate a delegation for any reason"), ¶ 1414 (stating that "renewal of any designee appointment is at the option and sole discretion of the FAA").

The FAA, however, has developed internal procedures to guide the nonrenewal or termination of DAR appointments. See FAA Order 8100.8D, ¶¶ 1100-1110, 1414-1415. Of particular relevance to this dispute, FAA Order 8100.8D sets forth the procedures for administrative appeals of decisions to terminate a DAR appointment, and provides that a DAR, upon timely appeal, may request a meeting with the appeal panel and the FAA inspector or project engineer who made the recommendation to terminate the DAR appointment. See id. ¶ 1108(b)(2).

II. Factual Background

In December 1998, Mr. Pucciariello entered into a settlement agreement with the FAA to resolve a discrimination complaint filed with the Equal Employment Opportunity Commission (EEOC).⁴ Compl. ¶ 7 & Attach. A at 1-3.⁵Under the agreement, Mr. Pucciariello agreed to retire from employment with the FAA on or before February 28, 1999, in exchange for the FAA appointing him as a DAR. Id. ¶ 7 & Attach. A at 1-2. In addition, the agreement stated that it "in no manner denies [Mr. Pucciariello] the right of renewal of [his] DAR [appointment] provided he otherwise satisfies all regulatory requirements in place or hereafter added to said regulatory requirements, and is otherwise qualified to be the holder of a DAR." Id. Attach. A at 2-3. In accordance with the agreement, Mr. Pucciariello retired on or before February 28, 1999, and the FAA appointed him as a DAR. Id. ¶ 8 & Attach. A at 4.

Several years later, on January 25, 2012, the FAA terminated Mr. Pucciariello's DAR appointment after finding that he had not properly performed his duties as a DAR. See Compl. ¶ 15 & Attach. B at 1 (January 25, 2012 letter stating that Mr. Pucciariello's DAR appointment was "terminated pursuant to 14 C.F.R. § 183.15(b)(4)" based upon the FAA's determination that Mr. Pucciariello had failed to adequately perform his duties as a DAR). The events leading to the FAA's termination of plaintiff's DAR appointment began on January 8, 2012, when Mr. Pucciariello contacted the South Florida Flight Standards District Office (FSDO) by e-mail with questions relating to the airworthiness certification of a helicopter scheduled to be exported to Brazil. Id. Attach. B at 1. As a result of additional e-mail correspondence with Mr. Pucciariello over the next two days, officials at the South Florida FSDO became concerned about Mr. Pucciariello's competence to handle his DAR functions. Id. On January 10, 2012, Mr. Pucciariello was instructed to cease all export certification activity until a meeting could be held to assess his capabilities and to determine if remedial training was necessary. Id. ¶ 14 & Attach. B. at 1.

The meeting between FAA personnel and Mr. Pucciariello took place on January 18, 2012. Compl. Attach. B at 1. According to FAA records, Mr. Pucciariello's responses to various queries of FAA personnel during the meeting revealed that plaintiff lacked the requisite knowledge to properly perform his DAR functions. Id. at 1-2. Specifically, FAA personnel found the documentation provided by plaintiff to be out-of-date or otherwise not in compliance with FAA regulatory guidance. Id. at 1. In addition, although Mr. Pucciariello representedduring the meeting that he had inspected the helicopter when it was fully assembled, as required by FAA regulations, further investigation by FAA personnel revealed that the helicopter was, in fact, disassembled when Mr. Pucciariello performed his inspection. Id. at 2.

Based on these events, on January 25, 2012, Sergio Lopez, manager of the South Florida FSDO, advised Mr. Pucciariello by letter that his DAR appointment had been terminated. Compl. ¶ 15 & Attach. B at 1-2. Mr. Lopez's letter set forth the bases for termination and also advised Mr. Pucciariello of his administrative appeal rights. Id. Attach. B at 2 (advising Mr. Pucciariello that he "may submit a request for appeal in writing to this office no later than 14 calendar-days from the date of receipt of this letter").

III. Procedural History

Mr. Pucciariello submitted a timely administrative appeal on February 6, 2012. Compl. ¶ 16. Thereafter, the FAA Southern Region Office convened an appeal panel to review plaintiff's termination. Id. ¶ 17 & Attach. B at 3. Upon reviewing the reasons for termination provided by the South Florida FSDO, as well as Mr. Pucciariello's appeal submission, the appeal panel upheld the decision to terminate plaintiff's DAR appointment. Id. By letter dated March 29, 2012, Thomas A. Winston, division manager for the FAA Southern Region Office, notified Mr. Pucciariello of the appeal panel's "final decision" to uphold the termination of his DAR appointment. Id. Attach. B at 3.

Nearly five months later, on August 27, 2012, plaintiff filed a complaint in the United States District Court for the Southern District of Florida, alleging violations of due process arising out of his DAR termination. Pucciariello v. LaHood, No. 12-61675 (S.D. Fla); see Def.'s Mot. App. at A18. The government filed a motion to dismiss for lack of subject matter jurisdiction, arguing that, pursuant to 49 U.S.C. § 46110 (2006), the United States courts of appeals have exclusive jurisdiction to review the FAA's termination of Mr. Pucciariello's DAR appointment. The district court agreed, holding that Mr. Pucciariello's due process claims in that forum amounted to a "challeng[e] [of] the FAA's final decision to terminate his DAR status," over which the United States courts of appeals possessed exclusive jurisdiction. Def.'s...