Opinion
CIVIL 2019-90
09-22-2022
RUSSELL E. ROBINSON, Plaintiff, v. DANIEL KEVIN ELWELL, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
RUTH MILLER, UNITED STATES MAGISTRATE JUDGE
Before the Court is defendant Federal Aviation Administration's (“FAA”) motion to dismiss plaintiff Russell Robinson's complaint for lack of subject matter jurisdiction and failure to properly effectuate service. [ECF 7]. Plaintiff filed a response, [ECF 9], and the motion is ripe for decision.
I. BACKGROUND
On August 3, 2005, a jury in the District Court of the Virgin Islands convicted plaintiff of conspiracy to possess with intent to distribute cocaine, conspiracy to import cocaine, and money laundering conspiracy. See Robinson v. United States, No. CIV.A. 08-103, 2009 WL 4110319, at *1 (D. V.I. Nov. 25, 2009) and United States v. Fleming, 287 Fed.Appx. 150 (3d Cir. 2008) (affirming conviction on appeal). On March 3, 2008, the FAA revoked plaintiff's commercial pilot, mechanic, and ground instructor certificates (collectively, the “certificates”). [ECF 1-2] at 4. The FAA's revocation order explains that pursuant to 49 U.S.C. § 44710, the circumstances of plaintiff's conviction “mandate the revocation of any and all airman certificates and ground instructor certificates” held by plaintiff. Id. at 5.
On March 7, 2008, plaintiff appealed the FAA's order to the National Transportation Safety Board (“NTSB” or “Board”) Office of Administrative Law Judges. [ECF 6-6] at 1. On September 11, 2008, the administrative law judge issued an order granting the FAA's motion for summary judgment and affirming the revocation of plaintiff's certificates. Id. at 1, 6. Plaintiff appealed the judge's affirmance but then withdrew his appeal, and on October 31, 2008, the NTSB ordered plaintiff's appeal dismissed. [ECF 6-8] at 1. Four years later, on November 14, 2012, plaintiff petitioned for reconsideration of the September 2008 order, and on May 2, 2013, the Board denied plaintiff's petition as untimely. See Robinson v. Huerta, 123 F.Supp.3d 30, 34 (D. D.C. 2015) (explaining procedural history).
On March 20, 2014, plaintiff filed a complaint in the U.S. District Court for the District of Columbia, alleging that the FAA's revocation order mischaracterized the facts at trial “and that the lifetime revocation of his certificates violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.” Robinson, 123 F.Supp.3d at 35. That court granted the FAA's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Id. at 49.
On November 16, 2015, Plaintiff filed a petition for review of the 2008 revocation order in the U.S. Court of Appeals for the Eleventh Circuit. Robinson v. FAA, No. 15-15163-EE, 2016 U.S. App. LEXIS 24019 (11th Cir. Aug. 30, 2016). The court determined that it had exclusive jurisdiction over the petition under 49 U.S.C. § 46110(a). Id. at *2. However, the court found that plaintiff's petition was untimely and further that plaintiff failed to establish “reasonable grounds” to excuse his untimely filing. Id. at *1-2. The court therefore granted the FAA's motion to dismiss the petition for review as untimely. Id. at *2.
On September 5, 2017, Plaintiff filed a complaint in the U.S. District Court for the Southern District of Florida, again alleging constitutional violations stemming from the 2008 revocation order. Robinson v. Huerta, No. 17-61253-CIV-WPD, 2017 U.S. Dist. LEXIS 208454 (S.D. Fla. Dec. 18, 2017). The court granted the FAA's motion to dismiss for lack of subject matter jurisdiction, finding that “[j]urisdiction over this matter lies exclusively in the U.S. Courts of Appeals, but in this instance, the 60-day window for obtaining judicial review of the Plaintiff's license revocation has long-since expired.” Id. at *2.
On October 7, 2019, plaintiff filed his pro se complaint in this Court, asserting federal question jurisdiction based on 49 U.S.C. § 44710. [ECF 1]. The complaint alleges that FAA officers knowingly used false and fraudulent statements in the administrative revocation process and that by so doing, the FAA manufactured a statutory jurisdictional basis to revoke plaintiff's certificates. Id. at 3. Plaintiff contends that the FAA's actions circumvented due process, denying him an opportunity to be heard, and caused Plaintiff to lose his right to earn a living in aviation. Id.
On February 24, 2020, defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that 49 U.S.C. § 46110(a) vests the United States Courts of Appeal with exclusive jurisdiction over FAA administrative revocation orders. [ECF 7]. In addition, the FAA maintains the complaint is untimely because § 46110(a) requires that a petition for review be filed within 60 days after the order is issued. [ECF 8] at 4-5. Defendant argues that dismissal is further warranted under Federal Rule of Civil Procedure 12(b)(5) because plaintiff failed to properly effectuate service on the United States. Id. at 5-6. Plaintiff opposed the motion contending that sufficient service of process was timely made on an agent of defendant. [ECF 9] at 1. Plaintiff further argues that this Court has subject matter and personal jurisdiction over the FAA and its actors as to plaintiff's allegations of criminal fraud, and that fraud is never time-barred. Id. at 23.
On July 14, 2022, the District Court referred defendant's motion to the undersigned for a Report and Recommendation. [ECF 13].
II. LEGAL STANDARDS
“Federal courts are courts of limited jurisdiction . . . [and] it is to be presumed that a cause lies outside this limited jurisdiction ....” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Congress, acting within its constitutional powers, may freely choose the court in which judicial review may occur . . . [and when] there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.” City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979). Therefore, pursuant to Federal Rule of Civil Procedure 12(b)(1), “a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012).
Rule 12(b)(1) movants may either assert a facial attack against the complaint or “question the existence of subject matter jurisdiction in fact, apart from the pleadings.” Doe v. Goldstein's Deli, 82 Fed.Appx. 773, 775 (3d Cir. 2003) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). “While the facial attack offers the plaintiff the safeguard of requiring the court to consider the allegations of the complaint as true, the factual attack allows the court to ‘weigh the evidence and satisfy itself as to the existence of its power to hear the case.'” Id. (quoting Mortensen, 549 F.2d at 891). Thus, in assessing whether it has jurisdiction in the latter case, “[t]he court may consider . . . evidence outside of the pleadings.” Id. (citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000)). “In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Mortensen, 549 F.2d at 891. Finally, “[t]he plaintiff always bears the burden of convincing the court, by a preponderance of the evidence, that the court has jurisdiction.” Doe, 82 Fed.Appx. at 775 (citing Gould, 220 F.3d at 178 (“The plaintiff has the burden of persuasion to convince the court it has jurisdiction.”)).
III. DISCUSSION
Defendant properly moves to dismiss the complaint because this Court lacks subject matter jurisdiction over plaintiff's challenge to the FAA's revocation order. Plaintiff alleges federal question jurisdiction based on 49 U.S.C. § 44710. However, that statute states that the Administrator of the FAA “shall issue an order revoking an airman certificate” when an individual commits controlled substance violations involving the use of an aircraft. 49 U.S.C. § 44710(b). The statute further provides that “[a]n individual whose certificate is revoked by the Administrator under subsection (b) of this section may appeal the revocation order to the [NTSB].” Id. § 44710(d)(1). Finally, “[a]n individual substantially affected by an order of the [NTSB] . . . may obtain judicial review of the order under section 46110 of this title.” Id. § 44710(d)(3). Section 46110, in turn, provides that:
[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation . . . or the Administrator of the Federal Aviation Administration . . . may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the
United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.49 U.S.C. § 46110(a). Upon transmittal to the FAA of a copy of the petition for review filed in the court of appeals, “the court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order.” Id. § 46110(c).
Here, by the express terms of the applicable statutes, this Court has no jurisdiction to hear plaintiff's challenges to the FAA's revocation order, or to the NTSB's decision upholding that order. See Fleming v. U.S. Dep't of Transp., 348 Fed.Appx. 736, 737 (3d Cir. 2009) (“the Aviation Act provides that the courts of appeals have exclusive jurisdiction to affirm, amend, modify, or set aside orders of the FAA” (internal quotations omitted)); Mattwaoshshe v. United States, 557 F.Supp.3d 28, 36 (D. D.C. 2021) (the direct-review provision of the Federal Aviation Act “removes [a covered FAA order] from the purview of the district court and places it within [the appellate court's] exclusive jurisdiction.” (alterations in original) (citation omitted)). While plaintiff did seek review of his revocation order before the NTSB, he nevertheless failed to complete the judicial review process by timely filing a petition for review in the appropriate court of appeals.“Moreover, that an individual aggrieved by agency action avails himself of the specified administrative review procedures does not alter the exclusivity of those procedures.” Merritt v. Shuttle, Inc., 187 F.3d 263, 271 (2d Cir. 1999). Plaintiff has continued to pursue legal action seeking reinstatement of his certificates, including two cases currently pending in this Court. But plaintiff's efforts to file multiple actions cannot and do not change the law vesting exclusive jurisdiction in the courts of appeal.
That plaintiff alleges due process violations in the administrative process based on the FAA's alleged reliance on false and fraudulent statements to revoke plaintiff's certificates is of no moment. “As numerous courts have held, when the resolution of a plaintiff's claims in federal court requires an examination of the underlying FAA proceedings, the district courts lack subject matter jurisdiction over any such claims.” Fleming, 348 Fed.Appx. at 737; see Robinson, 123 F.Supp.3d at 39 (holding that where gravamen of plaintiff's complaint centered on the manner in which § 44710 was applied to his individual case, plaintiff's claims were inescapably intertwined with the procedures and merits of the FAA order revoking his certificates, and court of appeals had exclusive jurisdiction); see also City of Rochester, 603 F.2d at 934 (“it is obvious that appellants' argument proves far too much, for it suggests that direct review in the courts of appeals would never be available when the action of the Administrator were drawn into question, an exaggeration sufficient alone to defeat the construction”). As the court observed in City of Rochester, “‘simple words of plain meaning . . . leave no room to doubt the congressional purpose and intent' to give the courts of appeals exclusive jurisdiction.” 603 F.2d at 935 (quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958)). Accordingly, based on the foregoing analysis, the undersigned finds that this Court lacks jurisdiction over plaintiff's complaint and that dismissal under Federal Rule of Civil Procedure 12(b)(1) is warranted.
IV. CONCLUSION
Accordingly, the premises considered, It is RECOMMENDED that the defendant's motion to dismiss plaintiff's complaint with prejudice be GRANTED.
Any objections to this Report and Recommendation must be filed in writing within 14 days of receipt of this notice. Failure to file objections within the specified time shall bar the aggrieved party from attacking such Report and Recommendation before the assigned District Court Judge. 28 U.S.C. § 636(b)(1); LRCi 72.3.