holding that 28 U.S.C. § 2680(h) bars claims for damages for negligent interference with future employment
How later courts described this case
- holding that 28 U.S.C. § 2680(h) bars claims for damages for negligent interference with future employment
- “A plaintiff may not use semantics to recast the substance of the claim so as to avoid a statutory exception.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PABLO AIR CHARTER, LLC, f/k/a
TAC CHARTER SERVICES, LLC,
Plaintiff, Case No. 2:23-cv-2629
Judge Edmund A. Sargus, Jr.
v. Magistrate Judge Chelsey M. Vascura
UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff Pablo Air Charter, LLC’s Motion for
Reconsideration of Opinion and Order. (Mot., ECF No. 18.) On August 1, 2024, this Court granted
Defendant United States of America’s motion to dismiss Pablo Air’s claims against it, concluding
that the United States was entitled to sovereign immunity. (Opinion and Order, ECF No. 16,
PageID 134.) Pablo Air moves this Court under Rule 59(e) of the Federal Rules of Civil Procedure
to amend its judgment of dismissal. (Mot., PageID 136.) The United States filed a response in
opposition. (Resp., ECF No. 19.) The Court DENIES Pablo Air’s Motion for the reasons stated in
this Opinion and Order.
LEGAL STANDARD
Rule 59(e) of the Federal Rules of Civil Procedure permits a district court to correct its
errors, “sparing the parties and appellate courts the burden of unnecessary appellate proceedings.”
Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008). It is within the sound discretion of
the district court whether to grant relief under Rule 59(e). In re Ford Motor Co., Sec. Litig. Class
Action, 381 F.3d 563, 573 (6th Cir. 2004). To be granted, “[a] Rule 59(e) motion must present
newly discovered evidence or clearly establish a manifest error of law.” D.E. v. John Doe, 834
F.3d 723, 728 (6th Cir. 2016).
Motions to reconsider are “not intended to re-litigate issues previously considered by the
Court or to present evidence that could have been raised earlier.” Ne. Ohio Coal. for the Homeless
v. Brunner, 652 F. Supp. 2d 871, 877 (S.D. Ohio 2009) (Marbley, J.). To “discourage the filing of
endless motions for reconsideration” and in the interest of “grant[ing] some measure of
finality . . . courts should grant motions for reconsideration sparingly.” King Lincoln Bronzeville
Neighborhood Ass’n v. Blackwell, No. 2:06-cv-0745, 2009 U.S. Dist. LEXIS 120011, at *4 (S.D.
Ohio Dec. 22, 2009) (Marbley, J.).
ANALYSIS
Pablo Air sued the United States for negligence and conversion after the Federal Aviation
Administration (“FAA”) accepted the surrender of Pablo Air’s operating certificate (the
“Certificate”) by the “pilot in command” of Island Seas, LLC. (Opinion and Order, PageID 129–
30.) Because it no longer held the Certificate, Pablo Air could not operate a Cessna 414 aircraft it
purchased (along with the Certificate) from Island Seas. (Id.) In its complaint, Pablo Air stated that
it intended to operate the Cessna 414 “under a new exclusive use dry lease agreement.” (ECF No.
1, ¶ 20.)
Under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80, the United
States waives its sovereign immunity for state law tort actions, subject to certain conditions and
exceptions. United States v. Orleans, 425 U.S. 807, 813 (1976); Fed. Express Corp. v. U.S. Postal
Serv., 151 F.3d 536, 540 (6th Cir. 1998). Under the “interference with contract rights” exception
to this immunity waiver, the United States retains its sovereign immunity for claims arising out of
contract rights regardless of how the claim is labeled. See Dupree v. United States, 264 F.2d 140,
141 (3d Cir. 1959) (holding that 28 U.S.C. § 2680(h) bars claims for damages for negligent
interference with future employment); see also Milligan v. United States, 670 F.3d 686, 695 (6th
Cir. 2012) (“A plaintiff may not use semantics to recast the substance of the claim so as to avoid
a statutory exception.”).
In its Opinion and Order, the Court concluded that the United States was entitled to
sovereign immunity on Pablo Air’s claims because they arose from contract rights. (Opinion and
Order, PageID 134.) The Court held that Pablo Air’s alleged damages “solely arise from the United
States’[s] alleged interference reducing the profit Pablo Air could receive from its future business
dealings by leasing the Cessna 414 aircraft.” (Id.)
Pablo Air argues that the Certificate has intrinsic value as property apart from its value for
use in future contracts. (Mot., PageID 139–40.) The Court already considered this argument as
part of its Opinion and Order. (See Opinion and Order, PageID 132 (“Pablo Air asserts that it
suffered damages . . . because it had ‘property rights with regards to the certificate.’” (quoting ECF
No. 14, PageID 113.)).) The Court held that, regardless of how Pablo Air labels its claims as
relating to property rights, “its claims arise out of interference with contract rights.” (Id. PageID
133.) Ultimately, “the Certificate had no value independent of what it authorized: Pablo Air’s
ability to lease the aircraft to potential consumers.” (Id.)
In the Motion, Pablo Air relies in part on a California federal district court case where the
court stated that the $250,000 purchase price of an interest in the plaintiff limited liability company
“reflected the value of a hard-to-acquire Part 135 certificate” held by the plaintiff, the same type
of document as the Certificate in question here. Vernon Aviation, LLC v. Lone Sky Aero Advisors,
LLC, No. EDCV 21-2087-JGB (KKx), 2022 WL 2288021, at *2 (C.D. Cal. Feb. 2, 2022). But
there is no tension between that court’s statement (which was background information not central
to the holding) and this Court’s conclusion that the Certificate has value because it allows the
holder to lawfully operate certain commercial aircrafts. The Vernon Aviation case does not reveal
a manifest error of law in this Court’s analysis.
Pablo Air also relies on a sworn affidavit of Robert Lowe, owner of Pablo Air. (ECF No.
18-1.) In the affidavit, Mr. Lowe attests that “14 CFR Part 135 Certificates carry a significant
amount of value. This is because they enable the owner of the certificate to conduct commercial
air transport operations.” (Id. ¶ 5.) As Pablo Air’s reliance on Mr. Lowe’s affidavit makes clear,
Pablo Air and the Court share the understanding that the Certificate’s value is inseparable from
what the Certificate authorizes the holder to do. Accordingly, when the FAA accepted the
surrender of the Certificate, Pablo Air was rendered unable to operate the Cessna 414 “under a
new exclusive use dry lease agreement,” an issue which sounds in contract law. (ECF No. 1, ¶ 20.)
Regardless, Pablo Air does not explain why Mr. Lowe’s affidavit could not have been ascribed
and filed earlier, so it is not newly discovered evidence.
Ultimately, Pablo Air’s Motion sheds no new light on the Court’s conclusion that its claims
arise out of contract rights. There is no manifest error of law in the Court’s conclusion that the
“interference with contract rights” exception to the United States’s waiver of sovereign immunity
under the FTCA applies to Pablo Air’s claims.
CONCLUSION
For the reasons stated in this Opinion and Order, the Court DENIES Pablo Air’s Motion
for Reconsideration of Opinion and Order. (ECF No. 18.) This case remains closed.
IT IS SO ORDERED.
3/7/2025 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE