Repetto v. Huerta

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ROBERT REPETTO

Plaintiff-Petitioner, Civil No. 1:13-cv-1894 (RCL)

V.

MICHAEL P. HUERTA, Administrator,

Federal Aviation Administration

VVVVVVVVVVV

Defendant-Respondent.

___________)

MEMORANDUM OPINION

Before the Court is the defendant’s Motion to Dismiss [8] plaintiff’s Petition for Review

[2]. Robert Repetto, plaintiff—petitioner, filed a petition seeking judicial review Of a decision by

the National Transportation Safety Board (“NTSB”) upholding the Federal Aviation

Administration’s (“FAA”) order denying Repetto’s application for an airman medical certificate

pursuant to the Pilot’s Bill of Rights (“PBR”), Pub. L. NO. 112-153, 126 Stat. 1159 (2012).

Upon consideration of the defendant’s Motion to Dismiss, the plaintiff’ 5 Response thereto [1 3],

and the defendant’s Reply [15], the Court will GRANT the defendant’s Motion for the reasons

stated below.

I. BACKGROUND

The relevant facts are as follows: Robert Repetto (“Repetto”), plaintiff-petitioner, is

employed as an air traffic control specialist with the FAA. Pl.’s Pet. for Review, Ex. A (Opinion

and Order of NTSB). He applied for an unrestricted airman medical certificate in February of

2011. Id. at 2. Repetto affirmed on his application that he has a history of alcohol dependence

or drug abuse and that he has a history of arrests or convictions involving driving while

intoxicated by, while impaired by, or while under the influence of alcohol or drug. Id. at EX. A;

see also Def.’s Mot. to Dismiss 7. Repetto listed two events concerning his DUI history in the

narrative section: “12/04 previously reported” and “arrest 7/10, not guilty 8/10, reported AEA-

300.” Pl.’s Pet. for Review, Ex. A (Opinion and Order of NTSB).

In June, 201 1, the Regional Flight Surgeon in New York issued a preliminary denial

letter noting that petitioner was ineligible for a medical certificate citing 14 C.F.R.

§ 67.107(a)(4). Id. In July, Repetto sent a letter, through his counsel, to the Federal Air Surgeon

seeking reconsideration of his application and offering to provide additional documentation or to

resubmit medical reports. Id. While the Federal Air Surgeon was in the process of reconsidering

Repetto’s application for an airman medical certificate, Repetto sent two additional letters

conversely requesting that the Federal Air Surgeon make an adverse decision on his

reconsideration so that Repetto could appeal the decision to the NTSB. Def.’s Mot. to Dismiss 8.

In November, 2011, James R. DeVoll, Manager, Medical Appeals Branch in the Office of

Aerospace Medicine, sent Repetto a letter explaining that additional medical information was

needed to determine Repetto’s eligibility for an airman certificate and requesting additional

records. Id. Repetto’s response asserted that the FAA’s request for information was not

reasonable or relevant. Id. He sent another letter to the FAA in December of 201 1 asserting that

the FAA’s request for additional medical information was a “pretext to avoid a full hearing with

the NTSB.” Id. In February of 2012, the FAA sent Repetto another letter requesting additional

medical records, to which Repetto responded by again refusing and stating that the request was

not reasonable. Id at 9. The Federal Air Surgeon then sent Repetto a final denial letter in March

of 2012 based on Repetto’s failure to provide the medical information requested in the F AA’s

letters. Id.

Ix.)

Repetto filed an appeal to the NTSB on March 27, 2012, which was assigned to an

Administrative Law Judge (“ALJ”). The Administrator filed a motion for summary judgment,

arguing that there were no material facts in dispute because Repetto indisputably had not

provided the medical records requested or signed a release for the information. Id. The ALJ

issued an oral decision granting the motion for summary judgment after hearing oral argument

on all motions. The ALJ emphasized that the issue in the case was not whether Repetto was

qualified for a medical certificate, but rather the issues were whether the Administrator’s request

for additional information was reasonable, and whether Repetto had provided the requested

information. Id.

Repetto later filed an appeal to the full NTSB; however, on October 23, 2013, the NTSB

upheld the Administrator’s denial of the medical certificate for failure to provide the requested

information. Id. Repetto now petitions this Court to review the agency’s decision.

II. LEGAL STANDARD

A. Rule 12(b)(6) Dismissal

Under Rule 12(b)(6), a court may dismiss a complaint, or any portion of it, for failure to

state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). To survive a motion to

dismiss, the pleading must contain enough factual allegations to “state a claim to relief that is

plausible on its face.” Bell. All. Corp. v. Twombly, 550 US. 544, 570 (2007). A complaint is

“plausible on its face” when the plaintiff “pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 US. 662, 663 (2009) (internal quotations omitted).

Additional pleading requirements are outlined in Rule 8 of the Federal'Rules of Civil

Procedure. Rule 8(a) requires pleadings seeking relief in federal district court to contain, inter

alia, “a short and plain statement of the claim showing that the pleader is entitled to relief,” and

“a demand for relief sought, which may include relief in the alternative or different types of

relief.” FED. R. CIV. P. 8(a)(2)-(3). Rule 8 must be satisfied in “all civil actions and proceedings

in the United States district courts, except as stated in Rule 81 .” FED. R. CIV. P. 1. Rule 81 does

not remove applicability of the Federal Rules of Civil Procedure from civil actions seeking

review of agency decisions. See generally FED. R. CIV. P. 81.

III. DISCUSSION

Rule 1 applies all Federal Rules of Civil Procedure to “civil actions . . . in the United

States district courts,” including Rule 8. FED. R. CIV. P. 1. Therefore, plaintiff must adhere to

the requirements of Rule 8 in a petition for review of an administrative agency’s action filed with

this Courtl

Plaintiff‘s petition for review consists of statements of jurisdiction and venue, the

procedural history of the case through the administrative process, and a paragraph requesting

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“full and independent review” of the NTSB’s final Opinion and a hearing de novo on the matter.

P1.’s Pet. for Review 1-5. Nowhere in plaintiff s petition is there any mention of what the NTSB

did improperly, nor is there any mention of what relief is sought. Plaintiff must at least set forth

1 If plaintiff had filed his petition for review with the Circuit Court of Appeals for the District of Columbia (or

another federal circuit court), then Rule 15 of the Federal Rules of Appellate Procedure would apply. FED. R. APP.

P. 1(a) (“These rules govern procedure in the United States courts of appeals”). Rule 15 requires that a petition for

review be filed “with the clerk ofa court of appeals authorized to review the agency order,” and that it 1) “name

each party seeking review,” 2) “name the agency as a respondent,” and (3) “specify the order or part thereofto be

reviewed.” FED. R. APP. P. 15(a). Rule 15 requires less information to be stated in a petition for review; however,

because plaintiff filed his petition for review with a district court, the Federal Rules of Appellate Procedure do not

apply.

2 Even ifthis Court construed plaintiffs petition for review as a claim for a de novo hearing, the PBR does not give

plaintiffthe right to such a hearing. The Administrative Procedure Act (“APA”) limits a court’s review ofan

agency’s decision to the administrative record. 5 U.S.C. § 706. A “[s]ubsequent statute may not be held to

supersede or modify” the APA’sjudicial review standards “except to the extent that it does so expressly.” Id. § 559.

Because the PBR does not expressly state thatjudicial review will be by way ofa de novo hearing, the APA’s

requirement that review be based on the administrative record applies. 49 U.S.C. § 44703(d)(3) (explaining that a

person may seekjudicial review of an NTSB order concerning airman certificates, and “[t]he findings of fact ofthe

Board in any such case are conclusive if supported by substantial evidence”).

4

why he believes the NTSB’s decision is wrong and why that entitles him to relief to satisfy Rule

8(a)(2), which requires a “statement of the claim showing that the pleader is entitled to relief.”

This Court cannot “draw the reasonable inference that the defendant is liable for the misconduct

alleged” when the plaintiff has not alleged any misconduct. Iqbal, 556 US. at 663 (internal

quotations omitted).

Additionally, plaintiff must at least include a “demand for relief sought” pursuant to Rule

8(a)(3). A request for a de novo hearing does not satisfy this requirement. Plaintiff‘s petition

contains no language expressing what relief he seeks from this Court. Without these statements,

plaintiffs petition does not satisfy the pleading requirements of Rule 8, and cannot survive a

motion to dismiss for failure to state a claim.

IV. CONCLUSION

In sum, defendant’s Motion to Dismiss for failure to state a claim is GRANTED because

plaintiffs petition for review of an agency decision did not satisfy the pleading requirements of

Rule 8(a).

A separate Order consistent with this Memorandum Opinion shall issue this date.

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Signed by Royce C. Lamberth, United States District Judge, mm, 2014.