Pucciariello v. United States

In the United States Court of Federal Claims

No. 13-590 C

(Filed June 2, 2014)

*********************

Contract; Fifth Amendment

CARMINE J. PUCCIARIELLO, *

Taking; Preemption of Tucker

*

Act Jurisdiction by 49 U.S.C.

Plaintiff, *

§ 46110 (2006); Jurisdictional

*

Effect of Failure to Concede

v. *

Lawfulness of Government

*

“Taking”; Failure to State a

THE UNITED STATES, *

Claim for Money Damages;

*

No Jurisdiction to Award

Defendant. *

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 of

1

/ The facts recounted in this opinion are taken from plaintiff’s complaint and the parties’

submissions in connection with defendant’s motion to dismiss, including the attachments to

plaintiff’s complaint as well as the order dismissing Mr. Pucciariello’s previous lawsuit in the

United States District Court for the Southern District of Florida, which defendant attaches to its

motion to dismiss. See Compl. Attachs. A-B; Def.’s Mot. App. at A18-A19 (Order of Apr. 8,

2013, Pucciariello v. LaHood, No. 12-61675 (S.D. Fla)). In addition, the court has considered

Mr. Pucciariello’s district court complaint filed August 27, 2012. As explained infra, the court

may consider these documents without converting defendant’s motion to dismiss for failure to

state a claim pursuant to RCFC 12(b)(6) into a motion for summary judgment pursuant to RCFC

56. Except where otherwise noted, the facts recounted in this opinion are undisputed.

2

/ Despite the apparent typographical error in the caption of plaintiff’s complaint, it

appears from the record and the pleadings that the proper spelling of plaintiff’s first name is

“Carmine” rather than “Camine.” See Compl. Attachs. A-B; Def.’s Mot. App. at A18; Pl.’s

Resp. at 1, 5. Therefore, the court adopts the former spelling, as that is the spelling used by the

parties throughout the record and their pleadings.

2

private 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 imply

3

/ The FAA promulgated Order 8100.8D on October 28, 2011 to establish “procedures to

be used by the Aircraft Certification Service (AIR) and Flight Standards Service (AFS) for

managing the FAA’s representatives of the Administrator (designee) program.” FAA Order

8100.8D, ¶ 100. FAA Order 8100.8D is directed to “[a]ll FAA employees who oversee private

persons acting as representatives of the Administrator and those persons acting as representatives

of the Administrator for the purpose of aircraft certification.” Id. ¶ 101.

3

employment 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 1-3.5

4

/ In his complaint, plaintiff alleges that he and the FAA entered into the settlement

agreement “[o]n or about December 1999.” Compl. ¶ 7 (emphasis added). The reference to

“1999” appears to be a typographical error, however, as the agreement itself indicates that it was

signed by Mr. Pucciariello on December 23, 1998. See id. Attach. A at 3.

5

/ Plaintiff’s complaint, as originally filed on August 19, 2013, referenced and purported

to include two attachments (Attachment A and Attachment B). Compl. ¶¶ 7-8; see Def.’s Mot at

8 (stating that plaintiff’s complaint “includes two attachments”). However, the court, in an order

dated March 31, 2014, noted that the docket in this matter did not reflect that plaintiff actually

filed any attachments with his complaint. The court therefore ordered plaintiff to file

Attachment A and Attachment B, as referenced in the complaint, and to certify whether those

attachments were identical to pages A6 through A17 of the appendix to defendant’s motion to

dismiss, which the government described as Attachment A and Attachment B to the complaint.

On April 3, 2014, in compliance with the court’s March 31, 2014 order, plaintiff filed a notice

indicating that “there are no apparent differences” between the documents submitted by

defendant and the attachments referenced in plaintiff’s complaint. See Notice of Apr. 3, 2014, at

(continued . . .)

4

Under 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 represented

1. Plaintiff’s notice also included copies of Attachment A and Attachment B – which the court

refers to as “Compl. Attach. A” and “Compl. Attach. B.”

5

during 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 Mot. App. at A18-A19 (citing Doe v. Fed.

Aviation Admin., 432 F.3d 1259, 1263 (11th Cir. 2005)). Accordingly, by order

6

dated April 8, 2013, the district court dismissed Mr. Pucciariello’s complaint for

lack of subject matter jurisdiction without leave to amend. Id. In addition, the

district court dismissed Mr. Pucciariello’s complaint “by default” and “on the

merits” because Mr. Pucciariello never responded to the government’s motion to

dismiss. Id. at A18.

On August 19, 2013, Mr. Pucciariello filed a complaint in this court, seeking

damages and injunctive and declaratory relief based upon the FAA’s decision to

terminate his DAR appointment.6 Plaintiff characterizes his current challenge to

the FAA’s termination decision as “an action for 5th Amendment taking of

property without just compensation, and without complying with procedural due

process and written procedural rules and regulations designed to protect the

Plaintiff.” Compl. ¶ 1. Additionally, plaintiff asserts that his current claims “are

based on [the] Government’s breach of an explicit written settlement agreement

where Plaintiff agreed to retire and the FAA agreed to assign him as an FAA

Designated Airworthiness Representative (DAR).” Id.

Plaintiff’s complaint contains two counts. In the first count, plaintiff alleges

that the FAA breached the terms of the December 1998 settlement agreement by

terminating Mr. Pucciariello’s DAR appointment “without due process or cause,”

and in an “arbitrary” and “capricious” manner. Compl. ¶¶ 9-10. In the second

count, which plaintiff styles as a claim for “unjust taking without due process,”

plaintiff alleges that he possesses a property interest in his DAR appointment by

virtue of the settlement agreement, and that the FAA deprived him of that property

interest without adhering to the agency’s internal procedures for appeals from

termination decisions. Id. ¶¶ 11-18. Specifically, plaintiff asserts that the agency

failed to honor Mr. Pucciariello’s request for a meeting with the FAA appeal panel,

as provided for by FAA Order 8100.8D, ¶ 1108(b)(2). See id. ¶¶ 16-17.

As compensation for the FAA’s alleged wrongdoing, plaintiff requests

damages for lost past and future earnings, as well as damages for “loss of earning

capacity” and “loss of reputation in the aviation industry.” Compl. ¶ 19; see also

6

/ Plaintiff attempted to file an amended complaint with the court on August 27, 2013.

That document, however, was returned unfiled because it contained various defects in violation

of this court’s rules. See Order of Aug. 29, 2013. Plaintiff never attempted to file another

amended complaint, and therefore his original complaint remains the active pleading in this case.

7

id. ¶¶ 2, 20-21. In addition to monetary damages, plaintiff requests “declaratory

relief concluding that the United States Government removed him as a DAR in

violation of its written agreement and in violation of Plaintiff’s procedural due

process rights,” id. ¶ 2, as well as “[i]njunctive relief enjoining the FAA from

denying Plaintiff his right to a meeting to appeal [the] termination of his [DAR]

designation,” id. ¶ 22.

On November 18, 2013, the government filed a motion to dismiss plaintiff’s

complaint pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). Defendant’s motion

presents four jurisdictional arguments. First, the government contends that

plaintiff’s claims amount to a challenge to his DAR termination, and that the

United States courts of appeals have exclusive jurisdiction to review such

challenges pursuant to 49 U.S.C. § 46110. See Def.’s Mot. at 9-10; Def.’s Reply at

8. Second, defendant argues that this court lacks jurisdiction to consider Mr.

Pucciariello’s breach of contract claim because plaintiff fails to identify a provision

of the settlement agreement that mandates the payment of money in the event of

the government’s breach. See Def.’s Mot. at 13-14 (citing, e.g., Holmes v. United

States, 657 F.3d 1303, 1314-15 (Fed. Cir. 2011)). Third, defendant argues that

plaintiff has failed to establish jurisdiction over his breach of contract claim

because the complaint does not identify the substantive provisions of the settlement

agreement upon which Mr. Pucciariello relies, as required by RCFC 9(k). See

Def.’s Mot. at 14 (citing Kissi v. United States, 102 Fed. Cl. 31, 35 (2011), and

Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 715 (2010)).

Finally, defendant argues that this court lacks jurisdiction to consider plaintiff’s

claims for equitable relief because such claims are not tied to a money judgment.

See Def.’s Mot. at 14-16 (citing, e.g., James v. Caldera, 159 F.3d 573, 580 (Fed.

Cir. 1998)).7

7

/ The government raises two additional jurisdictional arguments. First, in its opening

brief, the government argues that plaintiff’s breach of contract claim and takings claim are, in

essence, disguised procedural due process claims over which this court lacks jurisdiction. See

Def.’s Mot. at 10-11 (citations omitted). The government, in its reply brief, withdrew its

contention that plaintiff’s claims are essentially due process claims. See Def.’s Reply at 1 n.1

(stating that plaintiff “clarifies in his response brief that . . . . [h]e is not alleging any form of due

process claim,” and therefore the court “need consider only whether plaintiff’s two claims [i.e.,

his breach of contract claim and takings claim] survive [RCFC] 12(b)(1) and [RCFC 12(b)](6)”).

Despite defendant’s apparent concession that plaintiff does not assert due process claims, the

court notes that certain portions of plaintiff’s complaint may fairly be read as asserting due

(continued . . .)

8

The government also seeks dismissal of plaintiff’s complaint pursuant to

RCFC 12(b)(6). With respect to plaintiff’s breach of contract claim, defendant

argues that plaintiff has failed to allege sufficient facts from which the court may

reasonably infer that the FAA breached the settlement agreement by terminating

Mr. Pucciariello’s DAR appointment. See Def.’s Mot. at 16-17; Def.’s Reply at 4-

6. With regard to plaintiff’s takings claim, the government contends, first, that

plaintiff has failed to allege facts plausibly suggesting that Mr. Pucciariello has a

cognizable property interest in his DAR appointment that could be the subject of a

valid takings claim under the Fifth Amendment. See Def.’s Mot. at 18-19; Def.’s

Reply at 6. In addition, defendant argues that, even if the court were to conclude

that plaintiff sufficiently pleaded a cognizable property interest in his DAR

appointment, plaintiff’s takings claim should nevertheless be dismissed because it

is premised upon allegedly unlawful governmental action.8 See Def.’s Mot. at 19-

20; Def.’s Reply at 6.

process claims. See Compl. ¶¶ 1-2, 4-5, 9, 12, 17-18. In addition, in his response brief, plaintiff

cites several cases addressing the procedural due process protections afforded to federal

employees. See Pl.’s Resp. at 13 (citing Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465,

474-75 (9th Cir. 1991), Polos v. United States, 621 F.2d 385, 389-90 (Ct. Cl. 1980), and Terry v.

United States, 499 F.2d 695, 702 (Ct. Cl. 1974)). To the extent that plaintiff’s complaint may be

construed as asserting due process claims, those claims must be dismissed because, as the

government correctly notes, due process claims are beyond this court’s Tucker Act jurisdiction.

Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing LeBlanc v. United States, 50

F.3d 1025, 1028 (Fed. Cir. 1995)); see Def.’s Mot. at 11.

Second, in its reply brief, defendant contends that plaintiff has failed to establish this

court’s jurisdiction over his breach of contract claim and takings claim because Mr. Pucciariello,

by his own admission, never presented those claims at the administrative level. See Def.’s Reply

at 7-8 (citing Air Line Pilots Ass’n v. Fed. Aviation Admin., 454 F.2d 1052, 1055 (D.C. Cir.

1971), and Pl.’s Resp. at 8). This argument, presented for the first time in defendant’s reply

brief, is not properly before the court and therefore will not be considered. See, e.g., Survival

Sys., USA, Inc. v. United States, 102 Fed. Cl. 255, 262 (2011) (“A party’s reply brief ‘repl[ies] to

arguments made in the response brief’; it does not provide ‘the moving party with a new

opportunity to present yet another issue for the court’s consideration.’” (quoting Novosteel SA v.

United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002))).

8

/ As additional bases for dismissal pursuant to RCFC 12(b)(6), the government

advances several arguments based upon the doctrines of res judicata, or claim preclusion, and

collateral estoppel, or issue preclusion. See Def.’s Mot. at 11-12; Def.’s Reply at 7. Because, as

(continued . . .)

9

DISCUSSION

I. Standards of Review

A. RCFC 12(b)(1)

The relevant issue in a motion to dismiss under RCFC 12(b)(1) “‘is not

whether a plaintiff will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims.’” Patton v. United States, 64 Fed. Cl. 768,

773 (2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on

other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In considering the

issue of subject matter jurisdiction, this court must presume all undisputed factual

allegations to be true and construe all reasonable inferences in favor of the

plaintiff. Scheuer, 416 U.S. at 236; Reynolds v. Army & Air Force Exch. Serv.,

846 F.2d 746, 747 (Fed. Cir. 1988) (citations omitted).

Where the court’s jurisdiction is challenged, the plaintiff bears the burden of

establishing subject matter jurisdiction by a preponderance of the evidence and by

presenting competent proof. Alder Terrace, Inc. v. United States, 161 F.3d 1372,

1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298

U.S. 178, 189 (1936)); Reynolds, 846 F.2d at 748 (citations omitted). If the

plaintiff fails to meet his burden, and jurisdiction is therefore found to be lacking,

the court must dismiss the action. RCFC 12(h)(3).

In considering a motion to dismiss for lack of subject matter jurisdiction

which challenges the truth of jurisdictional facts alleged in the complaint, the court

may make findings of fact pertinent to its jurisdiction. Ferreiro v. United States,

350 F.3d 1318, 1324 (Fed. Cir. 2003) (citing Moyer v. United States, 190 F.3d

1314, 1318 (Fed. Cir. 1999), and Reynolds, 846 F.2d at 747); Rocovich v. United

States, 933 F.2d 991, 993 (Fed. Cir. 1991) (“In determining whether a motion to

dismiss should be granted, the Claims Court may find it necessary to inquire into

jurisdictional facts that are disputed.”). In making findings of fact pertinent to its

jurisdiction, the court is not restricted to the face of the pleadings, but may review

explained infra, the court finds that plaintiff’s complaint must be dismissed pursuant to RCFC

12(b)(6) on other grounds, the court does not reach defendant’s claim preclusion and issue

preclusion arguments.

10

evidence extrinsic to the pleadings, including declarations or affidavits. Rocovich,

933 F.2d at 994 (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947), and

Reynolds, 846 F.2d at 747).

B. RCFC 12(b)(6)

It is well-settled that a complaint should be dismissed for failure to state a

claim under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle

him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir.

2002). To survive a motion to dismiss under RCFC 12(b)(6), “a complaint must

allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of

entitlement to relief.” Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir.

2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). In order to

meet the requirement of facial plausibility, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). Determining whether a complaint states a plausible

claim for relief is a “context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Id. at 679 (citation omitted).

When considering a motion to dismiss under RCFC 12(b)(6), the court is

bound to accept the well-pleaded factual allegations of the complaint as true.

Iqbal, 556 U.S. at 678. However, the court is not bound to accept as true mere

“‘labels and conclusions’” or “‘a formulaic recitation of the elements of a cause of

action.’” Id. (quoting Twombly, 550 U.S. at 555).

Although the court primarily examines the allegations in the complaint when

considering a motion to dismiss pursuant to RCFC 12(b)(6), it may also consider

“‘matters incorporated by reference or integral to the claim, items subject to

judicial notice, [and] matters of public record.’” A&D Auto Sales, Inc. v. United

States, No. 2013-5019, 2014 WL 1345499, at *1 (Fed. Cir. Apr. 7, 2014) (quoting

5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

1357 (3d ed. 2004)); see also DeKalb Cnty. v. United States, 108 Fed. Cl. 681, 692

(2013), appeal dismissed, No. 13-5074 (Fed. Cir. Sept. 26, 2013); Toon v. United

States, 96 Fed. Cl. 288, 298-99 (2010); Stocum v. United States, 85 Fed. Cl. 217,

221 (2008); Kawa v. United States, 77 Fed. Cl. 294, 306 (2007).

11

Plaintiff attaches to his complaint several documents, which include the

settlement agreement at issue as well as correspondence between Mr. Pucciariello

and FAA personnel regarding the FAA’s decision to terminate Mr. Pucciariello’s

DAR appointment. See Compl. Attachs. A-B. Those documents, which are

incorporated by reference into the complaint and are integral to plaintiff’s claims,

may properly be considered by the court without converting defendant’s motion to

dismiss into one for summary judgment. E.g., Toon, 96 Fed. Cl. at 298-99.

Likewise, the court may consider public court documents filed in Mr.

Pucciariello’s district court action, including Mr. Pucciariello’s complaint and the

district court’s order dismissing that lawsuit. E.g., DeKalb, 108 Fed. Cl. at 692.

II. Analysis

A. The Court Lacks Subject Matter Jurisdiction over Plaintiff’s

Claims

Pursuant to the Tucker Act, the United States Court of Federal Claims has

jurisdiction “to render judgment upon any claim against the United States founded

either upon the Constitution, or any Act of Congress or any regulation of an

executive department, or upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28

U.S.C. § 1491(a)(1) (2012). The Tucker Act, however, “does not create any

substantive right enforceable against the United States for money damages” but

“merely confers jurisdiction . . . whenever the substantive right exists.” United

States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). A plaintiff coming

before this court, therefore, must identify a separate provision of law conferring a

substantive right for money damages against the United States. Id.; see also Fisher

v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (citing United States v.

Mitchell, 463 U.S. 206, 216 (1983), and Testan, 424 U.S. at 398); Todd v. United

States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (citing Testan, 424 U.S. at 398). In

other words, the source underlying the cause of action must be money-mandating,

in that it “‘can fairly be interpreted as mandating compensation for damages

sustained as a result of the breach of the duties [it] impose[s].” Fisher v. United

States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (quoting Mitchell, 463 U.S. at 217)).

To establish Tucker Act jurisdiction, a plaintiff need only make a

“nonfrivolous allegation that it is within the class of plaintiffs entitled to recover

12

under the money-mandating source” identified in the complaint. Jan’s Helicopter

Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1309 (Fed. Cir. 2008). “There

is no further jurisdictional requirement that the court determine whether the

additional allegations of the complaint state a nonfrivolous claim on the merits.”

Id.

Here, the alleged money-mandating sources of law identified by Mr.

Pucciariello are: (1) the Takings Clause of the Fifth Amendment; and (2) his

settlement agreement with the FAA.9 See Compl. ¶¶ 1-3, 6, 9-11; Pl.’s Resp. at 9-

12. As set forth below, the court concludes that although both sources can fairly be

interpreted as mandating the payment of money, and therefore would normally be

sufficient to establish Tucker Act jurisdiction, neither source provides a basis for

Tucker Act jurisdiction in this case because a separate statutory provision – 49

U.S.C. § 46110 – bars this court from exercising jurisdiction over plaintiff’s

claims.

1. Plaintiff’s Fifth Amendment Takings Claim

The first money-mandating source of law alleged by plaintiff is the Takings

Clause of the Fifth Amendment. “It is undisputed that the Takings Clause of the

Fifth Amendment is a money-mandating source for purposes of Tucker Act

jurisdiction.” Jan’s Helicopter, 525 F.3d at 1309 (citing Moden v. United States,

404 F.3d 1335, 1341 (Fed. Cir. 2005)). Because plaintiff, having alleged a taking

of his property by the government, is within the class of plaintiffs entitled to

recovery if a Fifth Amendment takings claim is established, the court would

normally have Tucker Act jurisdiction over plaintiff’s takings claim. See id.;

Compl. ¶¶ 1, 11-18.

2. Plaintiff’s Breach of Settlement Agreement Claim

The second alleged money-mandating source of law identified in plaintiff’s

complaint is his settlement agreement, which plaintiff alleges was breached by the

9

/ Also, as previously noted, plaintiff appears to rely upon the Fifth Amendment Due

Process Clause. See Compl. ¶¶ 1-2, 4-5, 9, 12, 17-18; Pl.’s Resp. at 13. However, as explained

supra, the Fifth Amendment Due Process Clause is not a sufficient basis for Tucker Act

jurisdiction because it does not mandate payment by the government. See supra note 7.

13

FAA when the agency terminated his DAR appointment. See Compl. ¶¶ 1-2, 6, 9-

10. As set forth below, the court concludes that the settlement agreement can

fairly be interpreted as mandating the payment of money, and thus would normally

be sufficient to confer Tucker Act jurisdiction over plaintiff’s breach of contract

claim.

The term “contract,” for purposes of the Tucker Act’s grant of jurisdiction

over claims based “upon any express or implied contract with the United States,”

28 U.S.C. § 1491(a)(1), includes settlement agreements, see, e.g., Lutz v. U.S.

Postal Serv., 485 F.3d 1377, 1381 (Fed. Cir. 2007); Greco v. Dep’t of the Army,

852 F.2d 558, 560 (Fed. Cir. 1988) (“It is axiomatic that a settlement agreement is

a contract.”). When the substantive source of law identified as the basis for Tucker

Act jurisdiction is an express or implied contract with the United States, the

money-mandating requirement for Tucker Act jurisdiction ordinarily is satisfied.

See Bank of Guam v. United States, 578 F.3d 1318, 1325 (Fed. Cir. 2009) (“A well

pleaded allegation of a breach of either an express or implied-in-fact contract is

sufficient to overcome challenges to jurisdiction.” (citing Trauma Serv. Grp. v.

United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997))). That is because monetary

damages “are always the default remedy for breach of contract.” United States v.

Winstar Corp., 518 U.S. 839, 885 (1996) (citations omitted); see Holmes, 657 F.3d

at 1314 (noting that “‘[i]n the area of government contracts, as with private

agreements, there is a presumption in the civil context that a damages remedy will

be available upon the breach of an agreement’” (quoting Sanders v. United States,

252 F.3d 1329, 1334 (Fed. Cir. 2001))). As a general matter, therefore, a suit

seeking money damages for the alleged breach of a settlement agreement with the

government falls within this court’s jurisdiction under the Tucker Act.

Despite this general pronouncement, however, it is well-settled that “[t]he

government’s consent to suit under the Tucker Act does not extend to every

contract.” Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343

(Fed. Cir. 2008) (citations omitted). This court would not, for example, have

Tucker Act jurisdiction over a claim alleging the breach of a settlement agreement

that expressly provides that damages are not an available remedy for its breach.

See Holmes, 657 F.3d at 1314 (noting that “[a] contract expressly disavowing

money damages would not give rise to Tucker Act jurisdiction”). Nor would

Tucker Act jurisdiction extend to a claim for breach of an agreement providing for

“purely nonmonetary relief.” Id. at 1315.

14

In Holmes, the United States Court of Appeals for the Federal Circuit

resolved a split of authority in this court over whether Tucker Act jurisdiction

extends to a claim alleging breach of an agreement to settle an action under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2012). The

majority view at the time was that the Court of Federal Claims lacked jurisdiction

over such claims because Title VII established an integrated and comprehensive

scheme providing for exclusive review of Title VII actions in district courts. See

Holmes, 657 F.3d at 1311 (citing cases). Rejecting that view, the Federal Circuit

in Holmes held that a suit against the government alleging breach of a settlement

agreement is fundamentally a suit to enforce a contract and therefore within the

reach of this court’s Tucker Act jurisdiction. Id. at 1312.

At the same time, however, the Federal Circuit in Holmes cautioned that the

alleged breach of a settlement agreement does not necessarily give rise to Tucker

Act jurisdiction. 657 F.3d at 1315. Due to the particular nature of Title VII

settlement agreements, which the Federal Circuit noted “could involve purely

nonmonetary relief – for example, a transfer from one agency office to another,”

the court held that any plaintiff seeking damages under such an agreement must

establish that the agreement could “fairly be interpreted as contemplating money

damages in the event of breach.” Id.

Applying that standard to the Title VII settlement agreements at issue in

Holmes, the Federal Circuit concluded that the plaintiff in Holmes had

demonstrated that the agreements in that case could fairly be interpreted as

contemplating money damages in the event of breach, and the Federal Circuit

therefore reversed this court’s dismissal of the complaint for lack of jurisdiction.

See id. at 1315-16. The plaintiff in Holmes alleged that the Department of the

Navy (Navy) had breached two agreements settling Title VII employment actions.

Under the terms of the settlement agreements, the Navy agreed to expunge a

suspension letter from Mr. Holmes’ personnel file and to document that he had

resigned for personal reasons. Id. at 1315. The Navy also agreed to provide Mr.

Holmes with a “neutral reference” in response to inquiries from future employers.

Id. at 1316. Based on those terms, which the Federal Circuit found to “inherently

relate to monetary compensation through relationship to . . . future employment,”

the court held that the settlement agreements in Holmes could fairly be interpreted

as mandating the payment of money in the event of the government’s breach. Id.

15

The court also noted that “there is no language in the agreements indicating that

the parties did not intend for money damages to be available in the event of

breach.” Id.

In Cunningham v. United States, No. 2013-5055, 2014 WL 1377792 (Fed.

Cir. Apr. 9, 2014), the Federal Circuit, in a precedential opinion, expanded the

jurisdictional holding of Holmes to a “substantially similar” claim for breach of an

agreement settling the plaintiff’s discrimination claim arising under the Civil

Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (codified

as amended in scattered sections of Title 5 of the United States Code). See 2014

WL 1377792, at *5. The settlement agreement at issue in Cunningham, similar to

the agreement in Holmes, limited what information the Office of Personnel

Management (OPM) could disclose regarding the circumstances of Mr.

Cunningham’s departure from employment with OPM. Id. The agreement also

required OPM to remove Mr. Cunningham’s termination letter from his personnel

file. Id. Based on those similarities to the settlement agreements in Holmes, the

Federal Circuit held that the agreement in Cunningham “‘could fairly be

interpreted as contemplating money damages in the event of a breach’” because the

agreement inherently related to monetary compensation through relationship to Mr.

Cunningham’s future employment. Id. (quoting Holmes, 657 F.3d at 1315).

Citing Holmes, the government in the present case contends that plaintiff has

failed to establish Tucker Act jurisdiction over his breach of contract claim

because he has not identified any provision in the settlement agreement that

mandates the payment of money in the event of the government’s breach. See

Def.’s Mot. at 12-14 (citing, e.g., Holmes, 657 F.3d at 1314-15); Def.’s Reply at 1-

3. Plaintiff, also relying upon Holmes, responds by noting that money damages are

presumptively available as a remedy for breach of a government contract and, in

any event, the settlement agreement at issue can fairly be interpreted as mandating

the payment of money because it provided for Mr. Pucciariello’s DAR

appointment and therefore contemplated monetary compensation. See Pl.’s Resp.

at 11 (“At least some term of employment was contemplated when the parties

drafted the agreement; accordingly some future compensation was contemplated

by the parties at the time of drafting.”).

The court agrees with plaintiff that Mr. Pucciariello’s EEOC settlement

agreement, like the settlement agreements in Holmes and Cunningham, can fairly

16

be interpreted as contemplating money damages under the standards established by

the Federal Circuit in those cases. Under plaintiff’s agreement, the FAA agreed to

appoint Mr. Pucciariello as a DAR. Compl. Attach. A at 1-2. Although, as noted,

DAR appointments are terminable at the discretion of the FAA Administrator, see

49 U.S.C. § 44702(d)(2); 14 C.F.R. § 183.15(b); FAA Order 8100.8D, ¶¶ 1105(b),

1108(a), 1414, plaintiff is correct that at least “some future compensation was

contemplated by the parties at the time of drafting” of the agreement, see Pl.’s

Resp. at 11. Although DARs are not federal employees, they are paid for their

services by applicants for airworthiness certificates, who may elect to use DARs to

inspect their aircraft at their own cost or choose instead to allow FAA personnel to

inspect their aircraft in accordance with existing FAA practice. See, e.g.,

Charlima, Inc. v. United States, 873 F.2d 1078, 1081 (8th Cir. 1989) (citing

Designated Airworthiness Representatives Final Rule, 48 Fed. Reg. 16176, 16179

(Apr. 14, 1983)). Accordingly, a breach of Mr. Pucciariello’s settlement

agreement with the FAA could give rise to a claim for compensation because the

agreement, like those in Holmes and Cunningham, contemplates at least some

monetary compensation through relationship to Mr. Pucciariello’s future service as

a DAR. See Cunningham, 2014 WL 1377792, at *5; Holmes, 657 F.3d at 1316.

Additionally, like the agreements in Holmes and Cunningham, Mr. Pucciariello’s

settlement agreement does not contain language indicating that monetary damages

are not available. See Cunningham, 2014 WL 1377792, at *5; Holmes, 657 F.3d at

1316.

The government’s attempts to distinguish this case from Holmes and

Cunningham are unavailing. Defendant argues that plaintiff’s settlement

agreement is unlike the agreement in Holmes because it “did not provide a

guarantee of a perpetual DAR appointment,” nor did it specifically require the

payment of any wages to Mr. Pucciariello. Def.’s Mot. at 13; see also Def.’s

Reply at 2-3 (asserting that “the settlement agreement did not guarantee any

amount of wages”). Yet neither did the settlement agreements in Holmes or

Cunningham. The Federal Circuit found the agreements in Holmes and

Cunningham to inherently relate to future compensation not because the

agreements guaranteed any future term of employment or mandated the payment of

wages, but because the agreements placed restrictions on the personnel information

available to Mr. Holmes’ and Mr. Cunningham’s prospective employers, thereby

positively affecting Mr. Holmes’ and Mr. Cunningham’s future employment

prospects. See Cunningham, 2014 WL 1377792, at *5; Holmes, 657 F.3d at 1316.

17

The purpose of such an agreement was not to guarantee future employment or

compensation, but “‘to prevent [the plaintiff] from being denied future

employment based on his record as the [agency] maintained it prior to the

agreement[].’” Cunningham, 2014 WL 1377792, at *5 (quoting Holmes, 657 F.3d

at 1316).

Defendant also contends that plaintiff’s EEOC settlement agreement cannot

fairly be interpreted as contemplating money damages because the standard

remedy for breach of a settlement agreement resolving an employment dispute is

enforcement of the settlement terms or rescission of the settlement agreement and

reinstatement of the underlying action. See Def.’s Mot. at 13-14; Def.’s Reply at

1-2. As support for this argument, the government cites the EEOC regulation at 29

C.F.R. § 1614.504 (2013), which provides that a complainant alleging breach of an

EEOC settlement agreement “may request that the terms of [the] settlement

agreement be specifically implemented or, alternatively, that the complaint be

reinstated for further processing.” 29 C.F.R. § 1614.504(a); see Def.’s Mot. at 13.

However, as the Federal Circuit specifically found in Holmes, 29 C.F.R. §

1614.504(a) does not deprive the Court of Federal Claims of subject matter

jurisdiction over suits seeking damages for an alleged breach of an EEOC

settlement agreement. See Holmes, 657 F.3d at 1316 (“Without diminishing the

force of this regulation, we see no reason for § 1614.504(a) to preclude a suit for

money damages in the event of breach that is separate from, or in addition to, the

relief the regulation provides.”). In subsequent cases, this court has adhered to the

Federal Circuit’s view. See, e.g., Mata v. United States, 107 Fed. Cl. 618, 623

(2012) (holding that a negotiated settlement agreement, which contained language

nearly identical to 29 C.F.R. § 1614.504(a), could fairly be interpreted as

mandating the payment of money under the standard announced in Holmes because

the agreement “does not contain any language limiting the remedies available to

Mr. Mata”).

Defendant also relies, unpersuasively, on dicta in a single footnote in the

Holmes decision in which the Federal Circuit noted that “money damages appear

not to be the routine remedy for the breach of a settlement agreement involving an

employment dispute.” 657 F.3d at 1315 n.8 (citing Harris v. Brownlee, 477 F.3d

1043, 1047 (8th Cir. 2007)); see Def.’s Mot. at 13-14. The government asserts that

this footnote “effectively rebuts” the presumption that a damages remedy will be

available upon the breach of a government settlement agreement. See Def.’s Reply

18

at 2. Defendant’s strained interpretation of this single footnote runs headlong into

the holding of Holmes. Contrary to the government’s reading of Holmes, the

Federal Circuit’s acknowledgement that monetary damages are not the standard

remedy for breach of a settlement agreement resolving an employment dispute is

not dispositive of the issue at bar. Accordingly, the court concludes that Mr.

Pucciariello’s settlement agreement with the FAA can fairly be interpreted as

requiring the payment of money.

3. Preemption of Tucker Act Jurisdiction by 49 U.S.C. § 46110

Unfortunately for plaintiff, although his breach of contract and takings

claims would otherwise be within this court’s Tucker Act jurisdiction, a separate

statutory provision bars jurisdiction. Specifically, defendant asserts that pursuant

to 49 U.S.C. § 46110, “[t]he United States Court of Appeals for the District of

Columbia Circuit, or for the circuit in which Mr. Pucciariello resides, possess[es]

exclusive jurisdiction to review Mr. Pucciariello’s DAR termination and any

related constitutional claims.” Def.’s Mot. at 9; see also id. at 10; Def.’s Reply at

8. The government contends that the FAA’s decision to terminate Mr.

Pucciariello’s DAR appointment was an order subject to 49 U.S.C. § 46110, and

that plaintiff’s sole avenue of relief from that order was to file a petition for review

in a federal court of appeals. See Def.’s Mot. at 9-10; Def.’s Reply at 8. For the

following reasons, the court agrees with defendant.

49 U.S.C. § 46110 provides, in pertinent part, that

a person disclosing a substantial interest in an order

issued by . . . the Administrator of the Federal Aviation

Administration with respect to aviation duties and powers

designated to be carried out by the Administrator[] in

whole or in part under [Title 49, Subtitle VII, Parts A or

B of the United States Code] 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.

19

49 U.S.C. § 46110(a). Under 49 U.S.C. § 46110, any petition for review of an

administrative order subject to that section “must be filed not later than 60 days

after the order is issued.” Id. When such a petition is filed with a federal court of

appeals, the court receiving the petition “has exclusive jurisdiction to affirm,

amend, modify, or set aside any part of the order.” Id. § 46110(c).

The court’s analysis of the jurisdictional impact of 49 U.S.C. § 46110 begins

with a determination of whether the FAA’s termination of Mr. Pucciariello’s DAR

appointment falls within the ambit of 49 U.S.C. § 46110. If the answer to that

initial query is “yes,” then the court must determine whether plaintiff may

nevertheless bring his claims before this court notwithstanding the applicability of

49 U.S.C. § 46110.

a. The FAA’s Termination of Plaintiff’s DAR

Appointment Is an Order Subject to the Exclusive

Review Mechanism Set Forth in 49 U.S.C. § 46110

By its terms, 49 U.S.C. § 46110 applies if the FAA’s termination of Mr.

Pucciariello’s DAR appointment constitutes an “order issued by . . . the [FAA]

Administrator . . . with respect to aviation duties and powers designated to be

carried out by the Administrator[] in whole or in part under [Title 49, Subtitle VII,

Parts A or B of the United States Code].” 49 U.S.C. § 46110(a). Because the

authority to terminate Mr. Pucciariello’s DAR appointment is conferred by 49

U.S.C. § 44702(d)(2),10 which is located within Title 49, Subtitle VII, Part A of the

United States Code, the FAA’s termination decision is clearly within the scope of

agency actions covered by 49 U.S.C. § 46110. Consequently, if the FAA’s

termination decision is an “order” within the meaning of 49 U.S.C. § 46110, then

the federal courts of appeals would have exclusive jurisdiction to review that order.

Although the court has not identified any reported decisions of the United

States Supreme Court or the Federal Circuit applying 49 U.S.C. § 46110,11

10

/ As previously noted, 49 U.S.C. § 44702(d)(2) provides that the FAA Administrator

may rescind, or choose not to renew, a DAR appointment “at any time for any reason the

Administrator considers appropriate.”

(continued . . .)

20

numerous decisions of other federal courts of appeals have interpreted and applied

49 U.S.C. § 46110,12 as well as its predecessor, 49 U.S.C. § 1486(a).13 In the

11

/ The court’s research has revealed only one, non-precedential, Federal Circuit decision

applying 49 U.S.C. § 46110. In BFI Waste Systems of North America, Inc. v. Garvey, 243 F.3d

565 (Fed. Cir. 2000) (table), the Federal Circuit, citing 49 U.S.C. § 46110, concluded that it

lacked jurisdiction to consider a petition for review of an unspecified FAA order, and granted

BFI’s motion to transfer its petition for review to the United States Court of Appeals for the

District of Columbia Circuit.

This court’s precedent applying 49 U.S.C. § 46110 is nearly as sparse. In Crane

Helicopter Services, Inc. v. United States, 45 Fed. Cl. 410 (1999), the court noted that “the

various United States Courts of Appeals have exclusive jurisdiction to review FAA Orders”

pursuant to 49 U.S.C. § 46110, but the court concluded that 49 U.S.C. § 46110 did not apply in

that case because neither party challenged a decision of the FAA. See 45 Fed. Cl. at 436 n.27.

Rather, the plaintiff in Crane Helicopter asserted that the United States Forest Service had

breached a forest fire suppression contract, and the government asserted counterclaims alleging

that the plaintiff had falsely represented its aircraft as a civilian aircraft in order to obtain a

necessary FAA certification. Id. In that procedural context, the court concluded that “FAA

Orders are not the focus of review,” and therefore 49 U.S.C. § 46110 did not apply. Id. Perhaps

the most directly applicable decision of this court is Mike’s Contracting, LLC v. United States,

92 Fed. Cl. 302 (2010), which involved a helicopter owner’s constitutional and tort claims

challenging the FAA’s decision to suspend an airworthiness certificate for one of the plaintiff’s

helicopters based upon the agency’s determination that the helicopter posed an “ongoing and

unacceptable risk to aviation safety.” 92 Fed. Cl. at 305. In a footnote, the court noted that, to

the extent that the helicopter owner’s claims could be construed as challenging the FAA’s safety

determination, this court lacked jurisdiction to consider any such claims because 49 U.S.C. §

46110 vested exclusive jurisdiction in the United States courts of appeals over any direct

challenge to the FAA’s safety determination. See id. at 309 n.12.

12

/ See, e.g., Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170 (D.C. Cir. 2013); Blitz

v. Napolitano, 700 F.3d 733 (4th Cir. 2012); Jones v. United States, 625 F.3d 827 (5th Cir.

2010); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007);

Americopters, LLC v. Fed. Aviation Admin., 441 F.3d 726 (9th Cir. 2006); Merritt v. Shuttle,

Inc., 245 F.3d 182 (2d Cir. 2001); Aviators for Safe & Fairer Regulation, Inc. v. Fed. Aviation

Admin., 221 F.3d 222 (1st Cir. 2000); City of Pierre v. Fed. Aviation Admin., 150 F.3d 837 (8th

Cir. 1998); Aerosource, Inc. v. Slater, 142 F.3d 572 (3d Cir. 1998).

13

/ 49 U.S.C. § 1486(a) originally provided that

[a]ny order, affirmative or negative, issued by the . . . [FAA]

Administrator under this chapter . . . shall be subject to review by

(continued . . .)

21

absence of applicable binding authority, the decisions of other courts of appeals are

helpful aids to this court’s analysis.

The term “order,” for purposes of 49 U.S.C. § 46110, has been given

“‘expansive construction’” by the United States courts of appeals. Ligon v.

LaHood, 614 F.3d 150, 154 (5th Cir. 2010) (quoting Atorie Air, Inc. v. Fed.

Aviation Admin., 942 F.2d 954, 960 (5th Cir. 1991)); accord Gilmore v. Gonzales,

435 F.3d 1125, 1132 (9th Cir. 2006) (“Courts have given a broad construction to

the term ‘order’ in Section 1486(a) [46110’s predecessor].”) (alteration in original)

(citation and internal quotation marks omitted); Green v. Brantley, 981 F.2d 514,

519 (11th Cir. 1993) (stating that “other circuits have . . . noted that ‘[t]he term

order in [49 U.S.C. § 1486, the predecessor to 49 U.S.C. § 46110,] has been given

expansive construction’” (quoting Atorie Air, 942 F.2d at 960)). However, to be

reviewable pursuant to 49 U.S.C. § 46110, an agency order must be final, and the

agency record must be adequate to enable judicial review. See, e.g., Ligon, 614

F.3d at 154 (citing Atorie Air, 942 F.2d at 960). To be sufficiently final, an order

“need only be an agency decision which imposes an obligation, denies a right, or

fixes some legal relationship.” Id. (citation and internal quotation marks omitted).

Defendant asserts, and plaintiff does not contest, that the FAA’s March 29,

2012 “final decision” to uphold the termination of Mr. Pucciariello’s DAR

appointment constitutes an appealable order within the meaning of 49 U.S.C. §

46110. See Def.’s Mot. at 4-5; Pl.’s Resp. at 8 (characterizing Mr. Pucciariello’s

the courts of appeals of the United States or the United States

Court of Appeals for the District of Columbia upon petition, filed

within sixty days after the entry of such order, by any person

disclosing a substantial interest in such order.

Sutton v. U.S. Dep’t of Transp., 38 F.3d 621, 624 (2d Cir. 1994) (quoting 49 U.S.C. § 1486(a)

(1994)); see also Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192 (7th Cir. 1986).

Congress revised and recodified that section in July 1994. See Act of July 5, 1994, Pub. L. No.

103-272, sec. 1(e), § 46110, 108 Stat. 745, 1230. The intended purpose of the Act of July 5,

1994, as reflected in the House report pertaining to that statute, was to “restate in comprehensive

form, without substantive change, certain general and permanent laws related to transportation

and . . . to make other technical improvements in the Code.” H.R. Rep. No. 180, 103d Cong.,

2nd Sess. 1 (1993) (emphasis added), reprinted in 1994 U.S.C.C.A.N. 818, 818; see also id. (“As

in other codification bills enacting titles of the United States Code into positive law, this bill

makes no substantive change in the law.”), reprinted in 1994 U.S.C.C.A.N. at 822.

22

previous district court lawsuit as “an appeal from the administrative level of the

Federal Aviation Administration that was decided on March 29, 2012”). The court

agrees. The March 29, 2012 letter announced that the FAA appeal panel had

“determined [that] the facts . . . support[ed] the managing office’s decision to

terminate [Mr. Pucciariello’s] authority to act as a representative of the

Administrator.” Compl. Attach. B at 3. That letter clearly denied a right and fixed

a legal relationship between Mr. Pucciariello and the FAA by terminating his

ability to issue airworthiness certificates and to conduct inspections, testing, and

examinations necessary to issue such certificates. Therefore, the FAA’s March 29,

2012 “final decision” possesses the requisite finality to be an “order” within the

meaning of 49 U.S.C. § 46110.

Furthermore, although the entire extent of the administrative record is

unknown, it is evident from the complaint and the parties’ briefs that the record

contains not only the settlement agreement itself, which sets forth the basis for Mr.

Pucciariello’s DAR appointment, but also correspondence from the FAA to Mr.

Pucciariello explaining the process by which the agency decided to terminate Mr.

Pucciariello’s DAR appointment as well as the agency’s asserted bases for

termination. See Compl. Attachs. A-B; Def.’s Mot. at 1-4. In his complaint,

plaintiff challenges both the merits of the FAA’s termination decision as well as

the procedures used by the agency in arriving at that decision. See Compl. ¶¶ 9-10

(alleging that the FAA’s termination decision was “without due process or cause”

and was “arbitrary, capricious and otherwise in violation of the law”). The record

herein, which sets forth the reasons supporting the FAA’s termination decision and

describes the procedures afforded to Mr. Pucciariello, is sufficient to allow a

reviewing court to make an informed decision on plaintiff’s claims. See Green,

981 F.2d at 519 (holding that an administrative record consisting of documents

describing the FAA’s investigation of alleged misconduct by plaintiff, a former

designated pilot examiner, as well as related correspondence between plaintiff and

FAA personnel, “would allow a reviewing court to make an informed decision of

the procedure afforded and the reasons supporting” the FAA’s revocation of

plaintiff’s certificate of authority); see also Gilmore, 435 F.3d at 1133 (noting that

“[a]n adequate record [under 49 U.S.C. § 46110] . . . may consist of ‘little more’

than a letter” (quoting San Diego Air Sports Ctr., Inc. v. Fed. Aviation Admin., 887

F.2d 966, 969 (9th Cir. 1989))).

23

The court therefore concludes that the FAA’s March 29, 2012 “final

decision” to uphold the termination of Mr. Pucciariello’s DAR appointment was an

order subject to 49 U.S.C. § 46110. Accordingly, pursuant to the plain terms of

that statute, the United States courts of appeals have jurisdiction over any review

of the FAA’s termination decision, and any petition for review of that decision had

to have been filed within sixty days of March 29, 2012. See 49 U.S.C. § 46110(a),

(c).

b. 49 U.S.C. § 46110 Provides a Specific and

Comprehensive Scheme of Judicial Review that

Preempts Tucker Act Jurisdiction

Mr. Pucciariello never filed a petition for review of the FAA’s order with a

United States court of appeals. Instead, he chose to file suit in the United States

District Court for the Southern District of Florida, alleging that the FAA’s

termination of his DAR appointment violated his due process rights under the Fifth

Amendment. Pucciariello v. LaHood, No. 12-61675 (S.D. Fla filed Aug. 27,

2012). Then, after his claims in that forum were dismissed for lack of jurisdiction

pursuant to 49 U.S.C. § 46110 as well as on the merits by default, see Def.’s Mot.

App. at A18-A19, Mr. Pucciariello filed suit in this court, alleging that the FAA’s

termination of his DAR appointment breached his December 1998 settlement

agreement and effected an uncompensated taking in violation of the Fifth

Amendment.

The question that remains is whether Mr. Pucciariello may bring his claims

in this court pursuant to the Tucker Act, thereby circumventing the exclusive

jurisdiction of the United States courts of appeals under 49 U.S.C. § 46110. For

the following reasons, the court concludes that he may not.

It is fundamental that all federal courts, except the Supreme Court, are

creatures of statute established by Congress, and therefore possess only the

jurisdiction granted to them by Congress. In re United States, 877 F.2d 1568, 1571

(Fed. Cir. 1989) (citing U.S. Const. art. I, § 1). Congress, acting within its

constitutional powers, may freely choose the court in which judicial review of

administrative orders may occur. See City of Tacoma v. Taxpayers of Tacoma, 357

U.S. 320, 336 (1958) (“It can hardly be doubted that Congress, acting within its

24

constitutional powers, may prescribe the procedures and conditions under which,

and the courts in which, judicial review of administrative orders may be had.”).

As a court established by Congress under Article I of the United States

Constitution, the Court of Federal Claims “enjoys only so much judicial power as

Congress expressly permits.” Cent. Ark. Maint., Inc. v. United States, 68 F.3d

1338, 1341 (Fed. Cir. 1995) (citations omitted). Although Congress, via the

Tucker Act, has granted broad authority to this court to adjudicate “any claim

against the United States founded either upon the Constitution, or any Act of

Congress or any regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or unliquidated damages

in cases not sounding in tort,” 28 U.S.C. § 1491(a)(1), Congress may withdraw any

grant of Tucker Act jurisdiction, see Tex. Peanut Farmers v. United States, 409

F.3d 1370, 1373 (Fed. Cir. 2005) (citing, e.g., Ruckelshaus v. Monsanto Co., 467

U.S. 986, 1016-17 (1984)).

The Federal Circuit has consistently found preemption of Tucker Act

jurisdiction where Congress has enacted a precisely drawn, comprehensive, and

detailed scheme of review in another forum. See, e.g., Texas Peanut Farmers, 409

F.3d at 1373 (finding preemption of Tucker Act jurisdiction over claims for breach

of a crop insurance contract, where Congress granted the district courts exclusive

jurisdiction over claims against the Federal Crop Insurance Corporation); Wilson v.

United States, 405 F.3d 1002, 1009 (Fed. Cir. 2005) (holding that Congress, by

enacting the Medicare Act, withdrew Tucker Act jurisdiction over claims for

Medicare benefits); Folden v. United States, 379 F.3d 1344, 1357 (Fed. Cir. 2004)

(affirming dismissal of implied-in-fact contract claims and constitutional claims by

applicants for cellular licenses because Congress, in the Communications Act,

reserved judicial review of Federal Communications Commission licensing

decisions exclusively in the United States Court of Appeals for the District of

Columbia Circuit); Vereda, Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir.

2001) (holding that Tucker Act jurisdiction over plaintiff’s takings claim was

preempted by the “specific and comprehensive scheme for administrative and

judicial review” enacted by Congress in the Controlled Substance Act) (citation

and internal quotation marks omitted); Massie v. United States, 166 F.3d 1184,

1188 (Fed. Cir. 1999) (“[A] contract will not fall within the purview of the Tucker

Act if Congress has placed jurisdiction over it elsewhere.”).

25

The court concludes that 49 U.S.C. § 46110 provides such a specific and

comprehensive scheme with respect to judicial review of FAA orders. In reaching

that conclusion, the court has no reason to look beyond the plain text of the 49

U.S.C. § 46110, in which Congress clearly expressed its intention that the federal

courts of appeals would have “exclusive jurisdiction to affirm, amend, modify, or

set aside any part of” an FAA order. 49 U.S.C. § 46110(c). Applying this clear

language, several federal courts of appeals have held that the judicial review

scheme set forth in 49 U.S.C. § 46110 (and its predecessor, 49 U.S.C. § 1486(a)) is

exclusive. See, e.g., Blitz, 700 F.3d at 740 (concluding that, by enacting 49 U.S.C.

§ 46110, “Congress clearly expressed its intention that any legal challenge to a §

46110 order . . . be brought in the first instance in a court of appeals”);

Americopters, 441 F.3d at 732 (noting that the federal courts of appeals’

jurisdiction to review FAA orders pursuant to 49 U.S.C. § 46110 is “exclusive”);

Clark v. Busey, 959 F.2d 808, 811 (9th Cir. 1992) (concluding that pursuant to 49

U.S.C. § 1486, “the court of appeals’ jurisdiction is exclusive with regard to review

of final FAA actions”) (citations omitted); Suburban O’Hare Commission, 787

F.2d at 192 (same) (citations omitted). The court finds the reasoning of these

decisions to be persuasive, and concludes that the specific and exclusive

jurisdictional authority granted to the federal courts of appeals in 49 U.S.C. §

46110 controls and takes precedence over the general and non-exclusive

jurisdictional authority afforded by the Tucker Act.

c. Plaintiff’s Claims Are Inescapably Intertwined with a

Challenge to the FAA’s Termination of Plaintiff’s

DAR Appointment

The court’s analysis does not end here, however, because plaintiff’s

complaint does not seek to “amend, modify, or set aside any part of” the FAA’s

termination order, see 49 U.S.C. § 46110(c), but rather seeks monetary damages

based upon the FAA’s alleged breach of a settlement agreement and alleged

uncompensated taking in violation of the Fifth Amendment – claims over which

this court would normally possess Tucker Act jurisdiction. See Americopters, 441

F.3d at 736 (noting that “[i]n principle, a district court may decide a claim for

damages because § 46110 does not grant the court of appeals jurisdiction over this

form of relief” (citing Mace v. Skinner, 34 F.3d 854, 858 (9th Cir. 1994)). The

question remains, therefore, whether 49 U.S.C. § 46110 precludes this court’s

jurisdiction over plaintiff’s Tucker Act claims for monetary damages. For the

26

following reasons, the court concludes that Mr. Pucciariello’s monetary claims are,

in essence, challenges to the FAA’s termination of his DAR appointment, and

therefore are subject to the exclusive jurisdictional scheme set forth in 49 U.S.C. §

46110.

Several United States courts of appeals, including the Federal Circuit, have

recognized that statutes such as 49 U.S.C. § 46110 that vest judicial review of

administrative orders exclusively in the courts of appeals also extend to monetary

claims that are “inescapably intertwined” with review of such orders. See, e.g.,

Pines Residential Treatment Ctr. v. United States, 444 F.3d 1379, 1381 (Fed. Cir.

2006) (affirming dismissal of a breach of settlement agreement claim brought by

former operator of a mental health treatment facility because the claim was

“inescapably intertwined” with a claim for Medicare benefits, over which Congress

had preempted Tucker Act jurisdiction (citing Heckler v. Ringer, 466 U.S. 602,

614 (1984))); Doe, 432 F.3d at 1263 (holding that aircraft mechanics’ due process

claims challenging the FAA’s planned reexamination of plaintiffs’ airmen

competency “necessarily require a review of the procedures and actions taken by

the FAA with regard to the mechanics’ certificates” and therefore fell within the

exclusive scheme of judicial review set forth in 49 U.S.C. § 44709 (citing Green,

981 F.2d at 520)); Merritt v. Shuttle, Inc., 187 F.3d 263, 271 (2d Cir. 1999)

(holding that a commercial airline pilot’s due process claims based upon the

FAA’s suspension of plaintiff’s flight privileges were “inescapably intertwined”

with review of the FAA’s suspension order and were therefore subject to 49 U.S.C.

§ 46110); Jones, 625 F.3d at 829-30 (holding that plaintiff’s retaliation claims

challenging the FAA’s denial of plaintiff’s application for an appointment as a

designated engineering representative were “inescapably intertwined with a

challenge to the procedure and merits of that final order” and therefore were

impermissible collateral attacks barred by 49 U.S.C. § 46110) (citations omitted).

As recognized by the Ninth Circuit, the purpose of this “inescapably intertwined”

doctrine is “to prevent litigants from using a damages claim as a collateral attack

on a pending FAA order and to allow courts to identify and dismiss damages

claims that are actually thinly disguised attempt[s] at an end-run around the

jurisdictional limitation imposed by [49 U.S.C. § 46110].” Americopters, 441 F.3d

at 736 (citations and internal quotation marks omitted).

The court’s review of the complaint and the parties’ briefs confirms that Mr.

Pucciariello’s claims are inescapably intertwined with a challenge to the procedure

27

and merits surrounding the FAA’s order terminating his DAR appointment. As

noted, the complaint alleges a number of procedural improprieties with the FAA’s

decision to terminate Mr. Pucciariello’s DAR appointment. See Compl. ¶¶ 1-2, 4-

5, 9, 12, 17-18. It also challenges the merits of the FAA’s termination by alleging

that the agency’s decision was without “cause” and was “arbitrary” and

“capricious.” Id. ¶¶ 9-10; see also id. ¶ 18 (asserting that “[t]he FAA’s alleged

reasons for the termination of Plaintiff’s DAR are without merit”). Therefore, a

consideration of plaintiff’s claims would necessarily require a review of the

procedures used and actions taken by the FAA with regard to the agency’s

termination of Mr. Pucciariello’s DAR appointment, and would also require a

review and balancing of the same evidence used by the agency to support its

decision in that regard. The exclusive scheme of judicial review of FAA orders set

forth in 49 U.S.C. § 46110 bars such a collateral attack, and plaintiff’s attempt to

repackage what are essentially challenges to an FAA order into breach of contract

and Fifth Amendment takings claims must fail. See, e.g., Pines Residential

Treatment Center, 444 F.3d at 1381.

Accordingly, the court concludes that it lacks jurisdiction to consider

plaintiff’s breach of contract claim and his Fifth Amendment takings claim because

those claims are subject to the exclusive jurisdictional scheme set forth in 49

U.S.C. § 46110. Both claims must therefore be dismissed for lack of subject

matter jurisdiction.14

14

/ As previously noted, defendant also argues, as an additional basis for dismissal of

plaintiff’s breach of contract claim pursuant to RCFC 12(b)(1), that the complaint fails to

identify the relevant substantive provisions of the settlement agreement, as required by RCFC

9(k). See Def.’s Mot. at 14. The court rejects that argument. RCFC 9(k) provides that a party,

in pleading a claim founded on a contract, must “identify the substantive provisions of the

contract . . . on which the party relies.” The rule also provides, however, that “[i]n lieu of a

description, the party may annex to the complaint a copy of the contract or treaty, indicating the

relevant provisions.” RCFC 9(k); see Huntington Promotional & Supply, LLC v. United States,

114 Fed. Cl. 760, 766 (2014). Here, plaintiff attached a copy of the relevant settlement

agreement to his complaint. See Compl. Attach. A at 1-3. Although the complaint itself did not

identify the specific provisions of the settlement agreement that plaintiff alleges were breached,

plaintiff provided such information in his response brief. See Pl.’s Resp. at 11-12 (asserting that

the FAA breached the provision of the settlement agreement stating that the agreement “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

(continued . . .)

28

4. No Jurisdiction to Award Plaintiff’s Requested Injunctive

and Declaratory Relief

Defendant next argues that the court lacks jurisdiction to award the

injunctive and declaratory relief requested by plaintiff. See Def.’s Mot. at 14-16.

The court agrees.

The Court of Federal Claims may award equitable relief in only very limited,

statutorily defined, circumstances. See United Keetoowah Band of Cherokee

Indians of Okla. v. United States, 480 F.3d 1318, 1326 n.5 (Fed. Cir. 2007)

(citation omitted); Kanemoto v. Reno, 41 F.3d 641, 644-45 (Fed. Cir. 1994) (“The

remedies available in [the Court of Federal Claims] extend only to those affording

monetary relief; the court cannot entertain claims for injunctive relief or specific

performance, except in narrowly defined, statutorily provided circumstances . . .

.”). One such circumstance, and the only one that is potentially relevant to this

case, is when the requested equitable relief is “tied and subordinate to a money

judgment.” James, 159 F.3d at 580 (citation and internal quotation marks

omitted); see also 28 U.S.C. § 1491(a)(2) (allowing equitable relief that is “an

incident of and collateral to” a money judgment in order to “provide an entire

remedy and to complete the relief afforded by the judgment”). In that

circumstance, the court may “issue orders directing restoration to office or

position, placement in appropriate duty or retirement status, and correction of

applicable records.” 28 U.S.C. § 1491(a)(2).

The government contends that equitable relief is “the primary goal of

[plaintiff’s] lawsuit,” and therefore by definition cannot be tied and subordinate to

any award of monetary damages. See Def.’s Mot. at 16 (citing, e.g., Thorndike v.

United States, 72 Fed. Cl. 580, 583 (2006), and Rice v. United States, 31 Fed. Cl.

156, 164 (1994)). Although the court finds this assertion to be unfounded

inasmuch as plaintiff’s complaint clearly and repeatedly requests monetary

damages in the form of lost past and future earnings, “loss of earning capacity,”

and “loss of reputation in the aviation industry,” see Compl. ¶¶ 2, 19-21, the court

nevertheless concludes that it lacks authority under 28 U.S.C. § 1491(a)(2) to

provide the equitable relief requested by plaintiff.

requirements, and is otherwise qualified to be the holder of a DAR” (citing Compl. Attach. A at

2-3)). Plaintiff has therefore substantially complied with the requirements of RCFC 9(k).

29

First, as noted supra, plaintiff’s requested injunction would “enjoin[] the

FAA from denying Plaintiff his right to a meeting to appeal [the] termination of his

[DAR] designation.” Compl. ¶ 22. This injunction would not be merely incidental

to an award of lost earnings, “loss of earning capacity,” and “loss of reputation in

the aviation industry,” see id. ¶ 19, but rather would be separate from, and in

addition to, such requested damages.15 Moreover, even if plaintiff’s requested

injunction were merely incidental to the damages requested in his complaint, it

does not fall within the narrow group of orders specified in 28 U.S.C. § 1491(a)(2)

because it does not “direct[] restoration to office or position, placement in

appropriate duty or retirement status, [or] correction of applicable records.”

Furthermore, and most fundamentally, because the court concludes that it

lacks jurisdiction over plaintiff’s monetary claims, see supra, and that plaintiff has

failed in any event to state a claim for damages, see infra, the court has no basis

upon which to exercise jurisdiction over plaintiff’s claims for injunctive or

declaratory relief. See, e.g., Legal Aid Soc’y of New York v. United States, 92 Fed.

Cl. 285, 301 (2010) (holding that jurisdiction was lacking with respect to plaintiff’s

equitable claims under 28 U.S.C. § 1491(a)(2) because plaintiff failed to state a

claim for money damages); Flowers v. United States, 80 Fed. Cl. 201, 217, 223

(2008) (holding that “plaintiff does not have a claim for presently due money

damages,” and therefore the court lacked jurisdiction to consider plaintiff’s claims

for equitable relief), aff’d, 321 Fed. Appx. 928 (Fed. Cir. 2008). Thus, the court

cannot consider plaintiff’s claims for injunctive or declaratory relief.

15

/ In contrast, plaintiff’s requested declaration – that the FAA terminated Mr.

Pucciariello’s DAR appointment “in violation of its written agreement,” see Compl. ¶ 2 – would

merely serve as the substantive basis for an award of monetary damages. See Pauley Petroleum

Inc. v. United States, 591 F.2d 1308, 1315 (Ct. Cl. 1979) (explaining that “[e]quitable doctrines

can be employed incidentally to this court’s monetary jurisdiction either as equitable procedures

to arrive at a money judgment or as substantive principles on which to base the award of a

money judgment”) (citations omitted). Ultimately, however, the court lacks jurisdiction to award

plaintiff’s requested declaratory relief because, as explained infra, plaintiff has failed to state a

claim for money damages.

30

B. Plaintiff Has Failed to State a Claim upon which Relief Can Be

Granted

The court has dismissed all of plaintiff’s claims for lack of subject matter

jurisdiction. Nevertheless, in the interests of judicial economy, the court considers,

in the alternative, defendant’s RCFC 12(b)(6) arguments. Specifically, the

government argues that even if the court were to assume jurisdiction over

plaintiff’s claims, his claims must nevertheless be dismissed for failure to state a

claim upon which relief can be granted. The court agrees, for the following

reasons.

1. Plaintiff Has Failed to State a Claim for Breach of the

Settlement Agreement

The government argues that plaintiff has failed to allege facts that, if true,

would allow the court to reasonably infer that the FAA breached plaintiff’s

settlement agreement. See Def.’s Mot. at 16-17; Def.’s Reply at 4-6. In that

regard, defendant notes that under the settlement agreement which plaintiff

attached to his complaint, Mr. Pucciariello agreed to retire from employment with

the FAA on or before February 28, 1999 and the FAA agreed to appoint him as a

DAR. See Def.’s Mot. at 16 (citing Compl. ¶ 7 & Attach. A at 1-2). Defendant

asserts that, accepting as true the allegations of the complaint, both parties fulfilled

their respective obligations under the settlement agreement when Mr. Pucciariello

retired on or before February 28, 1999 and the FAA appointed him as a DAR. See

id. at 16-17 (citing Compl. ¶ 8 & Attach. A at 4). In addition, defendant asserts

that the settlement agreement “did not provide a guarantee of a perpetual DAR

appointment,” and therefore plaintiff has failed to make a plausible demonstration

that the FAA’s termination of Mr. Pucciariello’s DAR appointment resulted in a

breach of the agreement. See id. at 17.

In response, plaintiff asserts that the FAA, in terminating his DAR

appointment, breached the provision of the settlement agreement stating that the

agreement “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.” Compl. Attach. A at 2-3; see Pl.’s Resp. at 12.

Plaintiff interprets this provision of the agreement as imposing a “for-cause”

31

limitation on the FAA’s ability to terminate or refuse to renew Mr. Pucciariello’s

DAR appointment. See Pl.’s Resp. at 12 (stating that the agreement “clearly states

that the FAA had to renew Plaintiff’s DAR upon Plaintiff’s request ‘provided he

otherwise satisfies all . . . regulatory requirements in place’ and was otherwise

qualified to hold a DAR appointment” (quoting Compl. Attach. A at 2-3)). In

plaintiff’s view, the FAA’s termination of Mr. Pucciariello’s DAR appointment

breached the agreement because Mr. Pucciariello “had at all times satisfied the

applicable regulatory requirements and was otherwise qualified to hold the DAR.”

See id. In addition, plaintiff asserts that the FAA “breached the settlement

agreement by failing to give Plaintiff an adequate hearing at which he could refute

the basis for his DAR non-renewal.” Id.

In order to state a claim for breach of the settlement agreement, Mr.

Pucciariello must allege facts plausibly suggesting: (1) a valid contract between

the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that

duty; and (4) damages caused by the breach. San Carlos Irrigation & Drainage

Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989). Interpretation of the

settlement agreement, as with any contract, begins with the agreement’s plain

language. See, e.g., Coast Fed. Bank v. United States, 323 F.3d 1035, 1038 (Fed.

Cir. 2003) (en banc); United Int’l Investigative Servs. v. United States, 109 F.3d

734, 737 (Fed. Cir. 1997). In addition, the agreement should be interpreted as a

whole and in a manner which gives “‘reasonable meaning to all its parts.’”

Northrop Grumman Corp. v. Goldin, 136 F.3d 1479, 1483 (Fed. Cir. 1998)

(quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)).

For three reasons, the court concludes that plaintiff has failed to state a claim

for breach of the settlement agreement. First, as a preliminary matter, the court

does not agree with plaintiff’s interpretation of the settlement agreement as

guaranteeing the continuation of Mr. Pucciariello’s DAR appointment absent a

showing of “cause” for termination or nonrenewal. As noted supra, 49 U.S.C. §

44702 and the regulatory scheme promulgated thereunder vest plenary discretion

in the FAA Administrator to terminate, or choose not to renew, DAR

appointments. See 49 U.S.C. § 44702(d)(2) (providing that the FAA Administrator

“may rescind a delegation under this subsection” – including a DAR appointment –

“at any time for any reason the Administrator considers appropriate”); 14 C.F.R. §

183.15(b) (FAA’s implementing regulations setting forth the bases for termination

or nonrenewal of DAR appointments, including, inter alia, “[f]or any reason the

32

Administrator considers appropriate”); FAA Order 8100.8D, ¶ 1105(b) (stating that

“[d]esignation is a privilege that conveys responsibilities, but does not imply

employment 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 provision of the settlement agreement upon which plaintiff relies cannot

be read as divesting the FAA Administrator of his statutorily-conferred discretion

to decide whether to terminate or not renew Mr. Pucciariello’s DAR appointment.

That provision stated that the settlement agreement “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.”

Compl. Attach. A at 2-3. Far from imposing a “for-cause” limitation on the FAA’s

discretion to terminate or not renew Mr. Pucciariello’s DAR appointment, this

provision simply alluded to two of the non-exclusive bases for termination or

nonrenewal of DAR appointments set forth in the FAA’s implementing regulations

– namely, “[u]pon a finding by the Administrator that the representative has not

properly performed his or her duties under the designation,” or “[f]or any reason

the Administrator considers appropriate.” See 14 C.F.R. § 183.15(b)(4), (6). To

interpret this provision as guaranteeing Mr. Pucciariello a perpetual DAR

appointment subject only to a finding of “cause” for termination would be

unreasonable, particularly where, as here, such an interpretation would contradict

the clear congressional grant of discretion with respect to the termination or

nonrenewal of DAR appointments. See Capital Props., Inc. v. United States, 56

Fed. Cl. 427, 434 (2003) (“The rule that contract terms will be given their ordinary

meaning is particularly applicable where the contract language is easily construed

in harmony with the pertinent statute.” (citing, e.g., Am. Science & Eng’g, Inc. v.

United States, 663 F.2d 82, 88 (Ct. Cl. 1981))), aff’d, 89 F. App’x 262 (Fed. Cir.

2004).

Second, even if the settlement agreement could reasonably be interpreted as

imposing a “for-cause” limitation on the FAA’s ability to terminate or not renew

Mr. Pucciariello’s DAR appointment, plaintiff has failed to allege facts plausibly

33

suggesting that the FAA lacked cause to terminate that appointment. As the

government correctly notes, plaintiff attached to his complaint Mr. Lopez’s

January 25, 2012 letter. See Compl. Attach. B at 1-2. That letter, which is

incorporated by reference into the complaint and may be considered without

converting defendant’s RCFC 12(b)(6) motion to dismiss into a motion for

summary judgment, see Toon, 96 Fed. Cl. at 298-99, set forth the agency’s

justification for terminating Mr. Pucciariello’s DAR appointment. The agency’s

bases for termination included its determination that Mr. Pucciariello had

demonstrated during a meeting with FAA personnel on January 18, 2012 that he

lacked understanding of FAA regulations and regulatory guidance pertaining to the

inspection and testing of civilian aircraft, which resulted in his failure to properly

discharge his DAR duties relating to the export of a helicopter to Brazil. See

Compl. Attach. B at 1-2.

Plaintiff alleges no facts from which the court can reasonably infer that the

FAA’s stated reasons for terminating Mr. Pucciariello’s DAR appointment, as set

forth in Mr. Lopez’s January 25, 2012 letter, were incorrect or pretextual.

Although plaintiff alleges, in paragraph 18 of his complaint, that “[t]he FAA’s

alleged reasons for the termination of Plaintiff’s DAR are without merit,” that

allegation is no more than a “label” or “conclusion” that is not entitled to the

presumption of truth afforded to well-pleaded factual allegations. Iqbal, 556 U.S.

at 678 (citation omitted). The same is true of plaintiff’s bald and unsupported

assertion, in his response brief, that he had “at all times satisfied the applicable

regulatory requirements and was otherwise qualified to hold the DAR.” See Pl.’s

Resp. at 12.

Finally, with respect to plaintiff’s argument that the FAA “breached the

settlement agreement by failing to give Plaintiff an adequate hearing at which he

could refute the basis for his DAR non-renewal,” see Pl.’s Resp. at 12, plaintiff has

not identified any provision of the agreement requiring the FAA to utilize certain

procedures in terminating Mr. Pucciariello’s DAR appointment, nor did plaintiff

allege the existence of any such provision in his complaint. Mr. Pucciariello has

therefore failed to allege facts plausibly suggesting any contractual obligation on

the part of the FAA to afford Mr. Pucciariello the particular procedural protections

he alleges were due him.

34

For all of the foregoing reasons, the court concludes that plaintiff has failed

to state a claim upon which relief can be granted with respect to his claim for

breach of the settlement agreement. That claim must therefore be dismissed

pursuant to RCFC 12(b)(6), even if the court were to assume jurisdiction over the

claim.

2. Plaintiff Has Failed to State a Claim for a Fifth Amendment

Taking

The government also contends that Mr. Pucciariello’s takings claim should

be dismissed for failure to state a claim. In that regard, defendant first argues that

plaintiff has failed to allege sufficient facts from which the court may reasonably

infer that Mr. Pucciariello has a cognizable property interest in his DAR

appointment that could be the subject of a valid takings claim under the Fifth

Amendment. See Def.’s Mot. at 18-19; Def.’s Reply at 6. In addition, defendant

argues that, even if the court were to conclude that plaintiff sufficiently pleaded a

cognizable property interest in his DAR appointment, plaintiff’s takings claim

should nevertheless be dismissed because it is premised upon allegedly unlawful

governmental action. See Def.’s Mot. at 19-20; Def.’s Reply at 6. The court

agrees, as set forth below.

The court evaluates whether plaintiff has stated a Fifth Amendment takings

claim under a two-part test. First, the court must determine whether plaintiff has

established a property interest for purposes of the Fifth Amendment. E.g.,

Acceptance Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009). As to

this first question, “‘existing rules and understandings’ and ‘background

principles’ derived from an independent source, such as state, federal, or common

law, define the dimensions of the requisite property rights for purposes of

establishing a cognizable taking.” Id. at 857 (quoting Conti v. United States, 291

F.3d 1334, 1340 (Fed. Cir. 2002)). Because the existence of a cognizable property

interest is a threshold requirement for a valid takings claim, “[i]f the claimant fails

to demonstrate the existence of a legally cognizable property interest, the court[’]s

task is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372

(Fed. Cir. 2004) (citation omitted). Only if the court concludes that a cognizable

property interest exists does it then proceed to the second step, which is to

determine whether the governmental action at issue amounts to a compensable

taking of that property. Acceptance Insurance, 583 F.3d at 857.

35

In this case, the court need not proceed past the first step, as plaintiff has

failed to establish a cognizable property interest. To have a property interest

cognizable under the Fifth Amendment, a plaintiff “‘must have more than a

unilateral expectation . . . . He must, instead, have a legitimate claim of

entitlement . . . .’” Members of Peanut Quota Holders Ass’n v. United States, 421

F.3d 1323, 1330 (Fed. Cir. 2005) (quoting Bd. of Regents of State Colls. v. Roth,

408 U.S. 564, 577 (1972)). Here, Mr. Pucciariello asserts a property interest in his

DAR appointment. See Compl. ¶ 11 (alleging that “[t]he settlement agreement

between Plaintiff and Defendant created a property right and property interest in

Plaintiff’s DAR”). Yet, as recognized by at least two federal courts of appeals as

well as this court, designations of authority by the FAA under 49 U.S.C. § 44702

do not create cognizable property interests under the Fifth Amendment because

they are terminable at the discretion of the FAA Administrator. See Lopez v. Fed.

Aviation Admin., 318 F.3d 242, 249 (D.C. Cir. 2003) (holding that an engineer had

no property right in his appointment by the FAA as a designated engineering

representative) (citation omitted); Fried v. Hinson, 78 F.3d 688, 692 (D.C. Cir.

1996) (holding that a pilot examiner had no cognizable property interest in the

renewal of his pilot examiner designation); Greenwood v. Fed. Aviation Admin., 28

F.3d 971, 976 (9th Cir. 1994) (same); Mike’s Contracting, 92 Fed. Cl. at 307-10

(holding that a helicopter owner lacked a cognizable property interest in his

airworthiness certificate for purposes of a Fifth Amendment takings claim); see

also 49 U.S.C. § 44702(d)(2) (stating that the FAA Administrator may rescind, or

choose not to renew, appointments under that section “at any time for any reason

the Administrator considers appropriate”). As such, designees under 49 U.S.C. §

44702 serve at the FAA’s discretion and therefore have no more “‘than a unilateral

expectation’” of renewal. Lopez, 318 F.3d at 249 (quoting Roth, 408 U.S. at 577).

Any doubt that DARs lack a property interest in their designation is clarified

by the FAA’s regulatory guidance, which states that “[a] designation is a privilege,

not a right,” and “therefore[] the Administrator has the authority to terminate a

delegation for any reason.” FAA Order 8100.8D, ¶ 1108(a); see also id. ¶ 1414

(stating that “renewal of any designee appointment is at the option and sole

discretion of the FAA”). Based upon these background principles of law, the court

concludes that Mr. Pucciariello has no cognizable property interest in his DAR

appointment.

36

In an attempt to distinguish the authorities holding that designations

pursuant to 49 U.S.C. § 44702 are not cognizable property interests under the Fifth

Amendment, plaintiff contends that his DAR appointment is different because it

was conferred by his settlement agreement, which plaintiff asserts prohibited

termination or nonrenewal except for “cause.” See Pl.’s Resp. at 12. Yet, as the

court has already found, the settlement agreement cannot reasonably be read as

displacing the statutory and regulatory framework vesting in the FAA

Administrator unfettered discretion to terminate or refuse to renew DAR

appointments. Moreover, plaintiff cites no authority, and the court has found none,

supporting the notion that designations of authority under 49 U.S.C. § 44702 are

converted from privileges to rights merely because they are conferred by contract.

Plaintiff has therefore failed to establish a cognizable property interest under the

Fifth Amendment.16

Furthermore, the court agrees with defendant that even if plaintiff could

demonstrate a cognizable property interest in his DAR appointment, he

nevertheless fails to state a valid takings claim because his claim is premised upon

the FAA’s alleged violation of its regulations. The gravamen of plaintiff’s takings

claim is his allegation that the FAA unlawfully terminated his DAR appointment

16

/ In support of his contention that he possesses a cognizable property interest in his

DAR appointment for purposes of a Fifth Amendment takings claim, Mr. Pucciariello cites to

several precedential and non-precedential decisions addressing the procedural due process

protections afforded to federal employees with “for-cause” employment contracts. See Pl.’s

Resp. at 13 (citing Fed. Deposit Ins. Corp., 940 F.2d at 474-75, Polos, 621 F.2d at 389-90, and

Terry, 499 F.2d at 702). However, as explained supra and as demonstrated by numerous federal

court decisions cited in defendant’s reply brief, see Def.’s Reply at 3-4, DARs are not federal

employees, see, e.g., Charlima, 873 F.2d at 1081 (citation omitted). Moreover, the court has

already found that plaintiff’s settlement agreement does not contain a “for-cause” limitation on

the termination or nonrenewal of Mr. Pucciariello’s DAR appointment. Therefore, plaintiff’s

reliance upon decisions involving “for-cause” employment contracts is unavailing.

Plaintiff also relies upon several district court decisions addressing whether FAA

designees possessed cognizable property interests in their certificates of authority for purposes of

procedural due process claims. See Pl.’s Resp. at 13-14 (citing Green v. Brantley, 719 F. Supp.

1570, 1575-76 (N.D. Ga. 1989), and White v. Franklin, 637 F. Supp. 601, 610 (N.D. Miss.

1986)). Those cases are likewise inapposite because, as explained supra, this court lacks Tucker

Act jurisdiction over such due process claims. See, e.g., Smith, 709 F.3d at 1116 (citing LeBlanc,

50 F.3d at 1028).

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by failing to follow applicable regulations and internal procedures governing the

termination of such appointments. See Compl. ¶¶ 11-18; see also id. ¶ 1 (asserting

that “[t]his is an action for 5th Amendment taking of property without just

compensation, and without complying with procedural due process and written

procedural rules and regulations designed to protect Plaintiff”), ¶¶ 9-10 (alleging

that the FAA terminated Mr. Pucciariello’s DAR appointment “without due

process or cause,” and in an “arbitrary” and “capricious” manner). The Federal

Circuit has held that such allegations do not state a claim for a Fifth Amendment

taking. See Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1330-31 (Fed. Cir.

2006) (stating that “plaintiff’s assertion that [the U.S. Customs Service’s] actions

ran afoul of the Customs statutes . . . does not form the basis for a legal claim

under the Takings Clause of the Fifth Amendment”) (citation omitted); Lion

Raisins, Inc. v. United States, 416 F.3d 1356, 1369 (Fed. Cir. 2005) (“We have

made clear that a claim premised on a regulatory violation does not state a claim

for a taking.” (citing Rith Energy, Inc. v. United States, 247 F.3d 1355, 1366 (Fed.

Cir. 2001))).

In sum, because plaintiff has failed to establish a cognizable property

interest under the Fifth Amendment, and because his takings claim is premised

upon allegedly unlawful governmental action, his takings claim must be dismissed

pursuant to RCFC 12(b)(6) for failure to state a claim, even if the court were to

assume jurisdiction over that claim.

CONCLUSION

For all of the foregoing reasons, the court concludes that it lacks subject

matter jurisdiction over plaintiff’s claims. In addition, the court concludes that

even if it did possess jurisdiction, plaintiff has failed to state a claim upon which

relief can be granted. Plaintiff’s complaint must therefore be dismissed.

Accordingly, it is hereby ORDERED that

(1) Defendant’s Motion to Dismiss, filed November 18, 2013, is

GRANTED;

(2) The Clerk’s Office is directed to ENTER final judgment in favor of

defendant, DISMISSING the complaint without prejudice; and

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(3) Each party shall bear its own costs.

/s/Lynn J. Bush

LYNN J. BUSH

Senior Judge

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