Petition for Writ of Certiorari — Platt v. Ihle

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935. z 449 | SEP 20 1858

— Court Of The Binitesatas = a

OCTOBER TERM, 1993

PHILEMON K. PLATT,

Petitioner,

JUDITH IHLE; LINDA IHLE;

FEDERAL AVIATION ADMINISTRATION, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Charles B. Zuravin

CHARLES B. ZURAVIN, P.A.

11032 Two Ships Court

Columbia, Maryland 21044

Phone: (410) 992-4799

Facsimile: (410) 964-9819

Counsel for Petitioner

Counsel of Record

LAWYERS PRINTING COMPANY 7th & Franklin Bidg Richmond Virginia 23219 (804) 648 - 3664

QUESTIONS PRESENTED

I. DID THE TRIAL DECIDE CORRECTLY.

AND DID THE FOURTH CIRCUIT COURT OF

APPEALS AFFIRM SAID DECISION CORRECTLY,

THAT PLAINTIFF FAILED TO STATE A CAUSE OF

ACTION UNDER THE DOCTRINE UF BIVENS V SIX

UNKNOWN NAMED AGENTS OF THE FEDERAL

BUREAU OF NARCOTICS, 403 U.S. 388 (1971) ?

I]. ASSUMING THE ANSWER TO THE

PREVIOUS ISSUE IS IN THE NEGATIVE, IS IT

PROPER TO MAINTAIN SUCH A BIVENS ACTION

AGAINST PRIVATE PERSONS WHO WORK IN

CONCERT WITH GOVERNMENT EMPLOYEES TO

DEPRIVE A CITIZEN OF HIS CONSTITUTIONAL

RIGHTS AS IS HELD BY MOST, BUT NOT ALL OF

THE CIRCUIT COURTS WHICH HAVE DECIDED

THE ISSUE ?

TABLE OF CONTENTS AND AUTHORITIES

TABLE OF CONTENTS

Petition

Opinions Below

Jurisdiction

Questions Presented

Table of Cases and Authorities

Constitutional Provisions Involved

Statement of the Case

Reasons for Granting this Writ

Conclusion

Appendix A

Amended Complaint

Order dated September 17, 1991 of

the United States District Court

for the Eastern District of North Carolina .

Opinion of the United States Court

of Appeals for the Fourth Circuit

dated June 22, 1993

_ 44

TABLE OF CASES AND AUTHORITIES

BIVENS V. SIX UNENOWN NAMED AGENTS OF THE

FEDERAL BUREAU OF NARCOTICS. 403 USS. 388

CORFEP: kx: ts eee ae Ge eee .76

Canadian Transport Co. V. United States, 663 F.2d 108]

A. Oe MOD. sg bn we ep De eee

Dobyns v. E-Systems, Inc., 667 F.2d 1219

(oe Ow. FR sw st Sm See

FE. Trotter, Inc. vy. Watkins, 869 F.2d 1312

(9th Cir. 1989) aoe . 20

Fletcher v. Rhode Island Hospital Trust Bank, 496 F.2d

9ei (in Cw. 8)... OS ee

Holodnak v. AVCO Corp., 514 F.2d 285

(2nd Cir. 1975), cert. denied

423 U.S. 692 (1976) . . . . . . 2 ok oe

McNally v. Pulitzer Publishing Company,

532 F.2d 69, 75-76 (8th Cir. 1976). . . . . . 4g

Morast v. Lance, 807 F.2d 926 (11th Cir. 1987) . .19

Reuber v. United States, 750 F.2d 1039

(D.C. Cir, 1984) . . |. | 5. ee eee

Siegert v. Gilley, 59 U.S.L.W. 4465.

HES. Ct. 1789 (1991). . . . . Wl gg

Yiamouyiannis v. Chemical Abstract Service.

521 F.2d 1392, 1393 (6th Cir. 1975). . . . . 49

CONSTITUTIONAL PROVISIONS

U.S.CONST. amend. V. . . . . . . . , .

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

Philemon K. Platt, Petitioner

VS.

Judith Thle; Linda Ihle:

Federal Aviation Administration, ef al

ON PETITION FOR WRIT OF CERTIORARI

From the United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States.

Philemon K. Platt, the Petitioner herein, prays that a writ

of certiorari issue to review the judgment of the United

States Circuit Court of Appeals for the Fourth Circuit

entered in the above entitled case on June 22, 1993.

Opinions Below —

The Order of the United States District Court for

the Eastern District of North Carolina denying plaintiffs

motion for reconsideration of the court’s previous order

allowing the defendants, Linda Ihle’s and Judith Ihle’s

motion to dismiss, denying the plaintiff's motion to amend

the complaint against the Ihles, granting the Ihles motion

for sanctions and the F.A.A. employees’ motions to

dismiss and declaring that (1) an action under the doctrine

enunciated by this Honorable Court in BJVENS V. SLY

UNKNOWN NAMED AGENTS OF THE FEDERAL

BUREAU OF NARCOTICS, 403 U.S. 388 (1971) does not

apply to private citizens acting in concert with federal

officials, as such private citizens, acting in their private

Capacities, cannot be guilty of violating due process rights,

and (2) that the Amended Complaint fails to allege with

specificity any violation of Plaintiff's constitutional rights

is printed in Appendix A hereto, infra, pp. 42- 54. The

unpublished per curium opinion of the United States Court

of Appeals for the Fourth Circuit on June 22, 1993

affirming the District Court’s Opinion in all aspects, and

is printed in Appendix A hereto, infra, pp. 5S. 85.

Jurisdiction

The United States Court of Appeals for the Fourth

Circuit rendered its opinion (infra, page 42) on June 22,

1993. The jurisdiction of the Court is invoked pursuant to

United States Code Title 28, § 1257(1).

The jurisdiction of this Court is invoked on the

ground that the District Court has taken the position that

private citizens who act in concert with and conspire with

federal employees to deprive other citizens of the

constitutionally guaranteed rights can not be held liable.

Statutes and Constitutional

Provisions Involved

United States Constitutional Amendment V:

AMENDMENT V:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in

actual service in time of War or public

danger; nor shal! any person be subject for

the same offense to be twice put in

jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just

compensation.

Statement of the Case

- Procedural History:

On March 8, 1991 the plaintiff filed a pro se

complaint alleging a violation of his civil rights and

seeking monetary and injunctive relief. The complaint

was filed in the United States District Court for the

Eastern District of North Carolina. Pro se motions to

dismiss were filed by the two non-federally employed

defendants, Judith and Linda Ihle on April 1, 1991 and

April 5, 1991, respectively. The two Motions to Dismiss

were granted by Judge Terrence W. Boyle on May 6,

1991. Each Ihle filed a motion for sanctions on May 10,

1991. Plaintiff, through counsel, filed a motion to amend

his complaint and a motion to reconsider the dismissal of

the Ihles. On July 17, 1991 the three individually named

federal employees filed their motion to dismiss. Judge

Boyle entered his order on September 17, 199] denying

plaintiff's motion to reconsider, granting dismissal to all

defendants and allowing sanctions against plaintiff. Judge

Boyle held that private citizens, even if working in concert

with and in conspiracy with federal employees can not by

definition be liable for deprivation of a third party’s

constitutional rights. Furthermore, Judge Boyle found that

the Amended Complaint did not articulate with specificity

any violation of his constitutional rights.

A notice of appeal to the United States Court of

Appeals for the Fourth Circuit was filed by plaintiff on

September 19, 1991. Argument in Richmond was held on

March 2, 1992. The appellate court decided the case on

June 22, 1993, affirming the trial court’s order. The

Fourth Circuit's opinion, unpublished and per curium, did

not address the issue of private citizens and Bivens, supra,

but rather by totally relying on facts found no where else

other than in the appellate court’s opinion, the court found

that the Ihle’s did nothing more than pass on information

to a federal agency for which no cause of action lies, and

that the Bivens action is precluded by this Court’s holding

in Siegert v. Gilley, 59 U.S.L.W. 4465, 111 S. Ct. 1789

(1991). Thus no causes of action against any Defendants

_ soos

survived the Fourth Circuit’s decision.

- Statement of Facts:

The following pertinent facts were alleged in the

Amended Complaint:

Plaintiff, a vastly experienced airplane pilot and

charter operator was involved in litigation against the

F.A.A. office in Baltimore, Maryland in 1981. That case

was settled between the parties.

In October of 1989, plaintiff was hired by Air East,

Inc., as its chief pilot and check airman. The defendant,

Bishop Reynold, an F.A.A. employee, told the owner of

Air East that because plaintiff had "given the Baltimore

office a hard time" he would never approve plaintiff as

check airman or chief pilot and that Air East would never

obtain the F.A.A.’s approval to operate. Lastly the owner

of Air East was told by Mr. Bishop that plaintiff was the

subject of a then ongoing F.A.A. investigation. The night

before plaintiff was to begin his job, he was fired.

In March of 1989 the same Reynold Bishop filed

a report with the F.A.A. alleging that he had done a base

inspection of plaintiff's charter operation. In fact, no such

inspection had ever been done.

Judith Ihle and her daughter, Linda Ihle, filed

several complaints against plaintiff with the F.A.A. The

Defendant Gavin, another F.A.A. employee wrote a

document which purported to be an interview with a Mrs.

Elizabeth Howard. The document was allegedly witnessed

by the defendant Judith Ihle, and signed at the bottom by

Inspectors Gavin and Scarfeo, the last of the F.A.A.

employee defendants. The reality, according to Mrs.

Howard, was that she was never interviewed by the

F.A.A. employees, and that while she signed the

document, she was tricked into signing the prepared

"interview sheet" by Judith Ihle whom she considered her

a eerseeeeeiieieedeaaaeaiaaeesaeaaieanial

fried theretofore.

Reasons for Granting This Writ

The Fourth Circuit’s opinion is based on facts

found in the opinion and nowhere else.

The amended complaint found in Appendix A,

infra at p.1 essentially outlines four material events which

gave rise to this litigation. The first was the abusive

exercise of the F.A.A.’s vast power by Defendant Bishop

to intimidate the owner of Air East into firing plaintiff

from gainful employment. The second was the filing of

at least one false report in the records of the F.A.A. by

Defendant Bishop. The third was the filing of false

reports about plaintiff with the F.A.A. by the Ihles. The

fourth and perhaps the most serious allegation is the

collaboration between Judith Ihle and the F.A.A.

employees Scarfeo and Glavin in creating the fraudulently

written and utilized statement of interview from Mrs.

Elizabeth Howard.

In the appellate court’s opinion (infra Appendix A

p.60), it is stated that "Bishop gave them (referring to Air

East) the impression that Platt was not a-~competent

airman..." This "fact" can be found no where in the

record, and certainly not in the amended complaint. Thus,

the court has created a defamatory statement so that its

ultimate holding that this claim is barred by the holding in

Siegert v. Gilley, 59 U.S.L.W. 4465, 111 S. Ct. 1789

(1991) which held that a pure defamation is not actionable

under Bivens.

Of course, plaintiff never suggested otherwise. In

its sixth footnote, infra Appendix A, p.72, the court

ironically suggests that the undersigned counsel "insisted"

that Bishop’s statements were not defamatory in an

attempt to avoid the holding in the Siegert case. The truth

of the matter is that there never were any defamatory

ee |

Statements made by Bishop. He stated that plaintiff had

given the Baltimore office a hard time. Indeed. ten years

before, he had. Bishop further told the owner of Air East

that he would not approve plaintiff as either check airman

or chief pilot. Again, he wasn’t lying or mistaken. It is

certain that he would not have approved plaintiff far

anything. It is equally clear that he was not fabricating

when he advised Air East that the company would never

get the permits it required from the F.A.A. if plaintiff

were the chief pilot and check airman. Lastly the owner

of Air East was told by Bishop that plaintiff was the

subject of a then ongoing F.A.A. investigation. While it

is illegal to divulge who is and is not the subject of

governmental investigation, the statement was not false.

lo the contrary, the statement was all too true. If you

remove the appellate court’s creation of "incompetence"

there simply was nothing about which Bishop did that

could be addressed by a state brought action for

defamation.

To the contrary, what Reynold, and in fact all of

the defendants in this case did, is wield the immense

power that the F.A.A. has over citizens involved in

aviation in an intentional, illegal manner in order to exact

retribution on plaintiff for his perfectly legal behavior a

decade before. There is no state or federal remedy

available to plainuff without allowing him to bring an

action against the federal agents for deprivation of his

constitutional rights under the Bivens doctrine.

Assuming that the federal employees committed

aes acts, which if proven are actionable under Bivens, then the

remaining question is what about the Ihles, the non-

federally employed private citizens. Once again the

authors of the Fourth Circuit opinion changed the facts to

fit the holding. The Court’s conclusion was that plaintiff

i enema

is alleging only that the two Ihles reported information to

the F.A.A. and they can not be held responsible for what

the government does with such information. However that

is not what plaintiff alleged in his amended complaint.

The Ihles, for one reason or another, got involved in a

conspiracy with F.A.A. agents and partook in the setting

up of plaintiff so that the F.A.A. could attempt to strip

plaintiff of his licenses. Secondly, Judith Ihle tricked her

one time friend, Elizabeth Howard into signing what

purported to be a statement of interview ostensibly taken

by two F.A.A. employees and witnessed by Judith Ihle

[he octogenarian, Mrs. Howard, has repudiated the

statement, and alleged that Judith Ihle got her to sign the

Statement under false pretenses and that she was never

interviewed by agents or representatives of the F.A.A.

Assuming the truth of the allegations, it is difficult to

understand how the trial court and appellate court could

hold that Plaintiff's grievances as they relates to the Ihles

are frivolous - justifying Rule 11 sanctions.

The trial court went as far as holding that in any

event, Bivens does not allow suit against non-

governmental employees. Relying on Canadian Transport

Co. V. United States, 663 F.2d 1081 (D.C. Cir. 1980)

Judge Boyle said that "Canadian Transport actually held

that ‘private citizens, acting in their private capacities,

cannot be guilty of violating due process rights. The Fifth

Amendment is a restraint on the federal government, not

on private citizens.’ /d. at 1093. As in Canadian

Transport, the Ihles were acting in their private capacities

not as government agents." (infra Appendix A p.50).

The theory that most of the circuits have utilized to

allow the inclusion of private citizens who work in concert

with federal officials as defendants in a Bivens type action

is that when civilians act in concert with federal agents for

Cl ——

federal purposes they are, in effect, federal agents, and can

be held liable for a deprivation of Constitutional rights.

This Court has never considered whether a Bivens type

action may be brought against a private party. See Morast

v. Lance, 807 F.2d 926, 930 n.5 (11th Cir. 1987).

However four circuits have held that a Bivens action is

permitted against private citizens provided that the private

party had acted under color of federal law. See FE

Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir.

1989); Dobyns v. E-Systems, Inc., 667 F.2d 1219 (Sth Cir.

1982); Yiamouyiannis v. Chemical Abstract Service. 52]

F.2d 1392, 1393 (6th Cir. 1975); Reuber v. United States,

750 F.2d 1039, 1057 (D.C. Cir. 1984). Moreover. three

other circuits strongly suggest that they would also allow

such actions. See Morast v. Lance, 807 F.2d 926, 930

(11th Cir. 1987); McNally v. Pulitzer Publishing

Company, 532 F.2d 69, 75-76 (8th Cir. 1976); and

Holodnak v. AVCO Corp., 514 F.2d 285 (2nd Cir. 1975),

cert. denied 423 U.S. 892 (1976).

The only Court of Appeals which has taken an

adverse position is the First Circuit which has stated that

it would not allow a cause of action against private parties

acting under the color of federal law. See Fletcher v.

Rhode Island Hospital Trust Bank, 496 F.2d 927 (1st Cir.

1974). Interestingly, the dicta is contained in a footnote

without any supporting rationale.

The appellate court decision of which plaintiff is

presently seeking review does not address the issue as it

remarkably found that there were no allegations of any

specificity in the Complaint that would suggest that the

Ihles weit th concert with federal officials to deprive

plaintiff of his rights.

Such narrowly construing facts against a Bivens

type plaintiff, coupled with allowing such a

misinterpretation of Siegert to stand can only have a

chilling effect on citizen’s who have in fact been the

victims of federal governmental abuse. Similarly, if the

lower courts’ ruling were to stand, it would send a

dangerously encouraging message to federal officials who

work in regulatory agencies.

Conclusion

For the foregoing reasons this petition for a writ of

certiorari should be granted.

Respectfully Submitted,

Charles B. Zuravin

Counsel of Record

Charles B. Zuravin, P.A.

11032 Two Ships Court

Columbia, Maryland 21044

(410) 992-4799

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

Petition for Writ of Certiorari was mailed postage pre-

paid, on the 20th day of September, 1993, to Steven E.

Lacy, Esq., P.O. Box 1095, New Bern, North Carolina

28563, and Linda Kaye Teal, Assistant United States

Attorney, Civil Division, P.O. Box 26897, Raleigh North

Carolina 27611.

Charles B. Zuravin

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

ELIZABETH CITY DIVISION

PHILEMON K. PLATT

Plaintiff

CIVIL ACTION NO. 91-12-CIV-2-BO

JUDITH IHLE, ET AL.

Defendant

AMENDED COMPLAINT AND

DEMAND FOR JURY TRIAL

Philemon K. Platt, by his attorneys, Charles B.

Zuravin of Charles B. Zuravin, P.A. and Gary

Clemmons of Stubbs, Perdue, Chesnutt, Wheeler &

Clemmons, sues Judith Ihle, Linda Ihle, the Federal

Aviation Administration, Reynold Bishop, individually

and as an employee of the Federal Aviation

Administration, Edward F. Glavin, individually and as

an employee of the Federal Aviation Administration

and Dennis Scarfeo, individually and as an employee

of the Federal Aviation Administration pursuant to

the separate counts enumerated hereinafter and

alleges:

JURISDICTION

1. This Court has jurisdiction to try this case

under the provisions of 28 U.S.C. 81331 to decide

federal and constitutional questions raised hereunder.

VENUE

2. Venue in this case is properly before the

United States District Court for the Eastern District

of North Carolina under the provisions of 28 U.S.C.

§1402.

PARTIES

3. Plaintiff, Philemon K. Platt (Platt) is an

individual, residing in Ocracoke, North Carolina. He

Operates a business under the name of Pamlico Air

Service, formerly Calypso Airways.

4. The Defendant, Judith Ihle (J. thle), is a

retired airline attendant who resides in Ocracoke,

North Carolina.

5. The Defendant, Linda Ihle (L. thle), is a

woman who operates a beauty parlor on Ocracoke

Island. Linda Ihle is the daughter of the Defendant

J. thle.

6. The Federal Aviation Administration

(F.A.A.) is an executive Federal agency authorized by

Statute to administer those laws pertaining to the

aviation community to assure the safety of that

community and the public at large.

7. The Defendants Reynold Bishop (Bishop),

Edward F. Glavin (Glavin) and Dennis Scarfeo

(Scarfeo), are employees of the F.A.A. located at the

Winston-Salem, North Carolina Flight Standards

District Office (FSDO).

STATEMENT OF FACTS

8. Plaintiff is an experienced, professional

pilot’, teacher of pilots, aeronautical engineer’,

former air taxi/charter? operator and all around

' To receive a private pilot's license, one requires

40 hours of flight time. The Plaintiff has in excess

of seventeen thousand hours.

2 In 1961, Plaintiff graduated from the University

of Maryland with a degree in Aeronautical

engineering.

3 Air taxi/charter refers to businessmen who fly

passengers for financial remuneration.

expert* in general aviation’.

Plaintiff has been involved with aviation since 1966

when he obtained his private pilots license. By

1976, he had obtained just about every possible type

of license and rating given by the F.A.A. to airmen.®

* Indeed, Plaintiff has testified at trials dealing

with aircraft accidents and alleged violations, as an

expert witness and on more than one occasion was

consulted by the Federal Aviation Administration as

an expert in accident investigations.

> As that term is used by those familiar with the

wonderfully complex world of aviation, "general

aviation refers to all aspects dealing with flying other

than scheduled carriers.

° Plaintiff holds a private pilots license, a

commercial pilot’s license, he is instrument rated,

and qualified to fly multi-engine aircraft, he is a

certified flight instructor (CFI), a certified instrument

flight instructor (CFIl), a multi-engine instructor and

a multi-engine instrument instructor, he is qualified

to fly and teach the flying of sea planes. He has

qualified to be, and in fact acted as a CFI and CFI

revalidator for the F.A.A., he was also used by the

F.A.A. as a safety counselor. He has run numerous

clinics regarding flying and airplane safety.

9. In 1977 Plaintiff started Calypso Airway:

(Calypso), an air charter operation certified under

Part 135 of the Federal Aviation Regulations

(F.A.R.s). It was the starting of the small F.B.0.’

fourteen years ago which triggered the series of

events culminating in this litigation.

10. Calypso was situated in Easton Airport,

a relatively small airport owned and operated by the

town of Easton, Maryland located on the State’s

Eastern Shore in the middie of the Delmarva

Peninsula.

11. For reasons never made entirely clear, the

’Fixed Base Operator or Operation which refers to

a business which provides services to pilots at a

particular airport in the manner of coffee,

refreshments, fuel and aircraft maintenance, a place

to relax, etc.

then Chief of the Baltimore General Aviation District

Office (GADO), now known as FSDO’s throughout

the F.A.A., began a series of harassing and

intimidating actions against the Plaintiff and his new

business, Calypso. The Baltimore GADO was

responsible for operations in Easton, Maryland, and

it was on that office that the Plaintiff had to depend

for approval and governmental cooperation in order

to run Calypso legally and successfully.

12. When Plaintiff was unable to prevent the

Baltimore GADO, and several individual employees

who worked there, to cease their discrimination

against his business and cease harassment of

Plaintiff personally, his employees and his

customers, Plaintiff filed suit against the F.A.A. and

several Baltimore employees in the United States

District Court for the District of Maryland in 1981.

13. The suit was never tried, but settled

informally. Among the terms of settlement were:

A. The F.A.A. paid over to Platt, and Calypso,

the sum of $18,500.

B. All alleged violations against Plaintiff

and/or Calypso were rescinded/canceled.

C. The F.A.A. and all of its employees would

immediately cease and desist from harassing

Plaintiff, his employees and customers.

D. Kenneth Kress was removed from

authority over the Easton Airport and operations

which took place there until Platt himself approved

f Kress’ return.

E. Several F.A.A. employees were disciplined.

14. For the most part, the F.A.A. lived up to

its end of the bargain. There were, however, a few

exceptions.

a aereermerneeneienteeemeneneell

15. In 1982, an F.A.A. employee by the

name of George Bush (no relationship we presume)

looked at the log book belonging to one of Plaintiff's

Students. Mr. Bush discovered that rather than

signing each entry on a page individually, Plaintiff

would write in the required information on each line

and sign once at the top and indicate that he wrote

the balance of the lines by extending a line from his

name down the page. Technically, the F.A.R.

dealing with instructor signatures requires instructors

to sign each and every entry on each page of the log

book. For this incredibly technical violation of the

F.A.R.s, a supposedly improper method of signing a

log book, Mr. Bush proposed that Plaintiff be

assessed a fine of three thousand ($3,000.00)

dollars. The charge was ultimately dropped, but not

until Plaintiff suffered great stress, humiliation,

embarrassment and much pain and suffering. At

that point in time, and in fact until this date,

Plaintiff's record has been, for the most part,

pristine.®

16. In 1984, the Baltimore GADO began to

illegally investigate an alleged violation dealing with

a flight which occurred over 15 months before the

investigation was to commence. The law allows the

F.A.A. only six months to investigate and take

action. The investigation was dropped, but not

before causing the Plaintiff great pain and suffering.

17. In 1986, Plaintiff purchased property in

® Plaintiff has never been violated, disciplined,

counseled or in any other manner had less than a

perfect record with the F.A.A. except for one minor

incident wherein a private citizen alleged that

Plaintiff had violated one of the F.A.R.s. The matter

was settied between the F.A.A. and Plaintiff without

the necessity of any official sanction. The incident

occurred nearly 20 years ago.

Ocracoke, North Carolina and began building a home

on the island for himself and his wife.

18. In 1988, Plaintiff terminated his business

activities in Easton, Maryland and completed his

move to North Carolina.

19. Plaintiff changed the name of his

proprietorship from Calypso Airways to Pamlico Air

Services (Pamlico) and changed the address of

Pamlico to that of his home in Ocracoke. The

Ocracoke airport is owned and operated by the

United States Park Service and does not allow any

commercial operations to be based on the field.

RECENT FACTUAL DEVELOPMENT

20. On or about March 15, 1989, Plaintiff

was at the Ocracoke Airport with his son, Kenneth,

and one his son’s friends for most of the day. While

at the airport, the threesome observed a single

engine Beechcraft airplane land at the airport, taxi to

several planes and appear to write down the N

numbers of each.* The operator of the airplane

never turned his engine off, never deplaned and

never made any attempt to talk to anyone - either at

the airport or by using the pay telephone which was,

at that time, located on the field and in clear view of

said airplane.

21. On or about March 25, 1989, Plaintiff

received a letter dated March 23, 1989, from the

Baltimore FSDO still responsible for the operation of

Calypso/Pamlico as Plaintiff had not yet officially

° Each plane flown in the United States must be

identified by a unique set of numbers and letters

which are clearly marked on the given plane’s tail in

accordance with the F.A.R.’s. Planes registered in

the United States are all identified by a series of

numbers and/or letters the first of which is "N".

Accordingly, the identifier is often referred to as

either a tail number or an N number.

ES ————————

changed the address on his certificate allowing

operation of air taxi company under the provisions of

Part 135 of the F.A.R.s. The letter advised Plaintiff

that an F.A.A. employee, the Defendant Reynold

Bishop, had attempted to do a "Base inspection" of

Pamlico’s base of operations. Bishop filed a false

report indicating that no one was at the airport, that

there was no telephone at the airport, that he was

unable to find Plaintiff on Ocracoke Island at all, and

that he was unable to do a "Base inspection."

Bishop made no effort whatsoever, to locate Plaintiff

on the Island at his home or at the airport. Bishop

filed the report with the intent to create the

impression that he had attempted to do a "Base

inspection” and that Plaintiff had no operation nor

was Plaintiff available to show his business to the

F.A.A.

22. Plaintiff, not wanting to get into any kind

of antagonistic relationship with the F.A.A. in North

Carolina, wrote back to the Baltimore FSDO and

addressed the concerns expressed in the letter of

March 23. By the same correspondence, Plaintiff

returned his 135 certificate (the license which allows

a businessman to operate an air taxi/charter

operation) indicating that he would apply for his new

certificate from the North Carolina FSDO in Winston-

Salem which would indicate the correct address of

Pamlico Air Services.

23. Plaintiff was finaily settled enough in

Ocracoke to commence operating Pamlico for air taxi

and chartering services. Therefore, by letter dated

May 20, 1989, Plaintiff requested his new 135

certificate from the Winsten Salem FSDO. It was

not until Plaintiff filed a complaint with the

Administrator of the F.A.A., on July 31, 1990, the

agency began in earnest to process the certificate.

Plaintiff was unable to operate his air taxi/charter

business for over a year, at great loss and expense.

24. In the second week of October of 1989,

Plaintiff was hired by Air East, a small airline and

F.B.O., operating out of Craven County Regicnal

Airport in New Bern, North Carolina, as Chief Pilot

and check airman.'°

25. Air East had been having trouble getting

certain approvals so that they could operate as they

wished. Plaintiff, having run a similar business, was

iN a position to aid and assist Air East to obtain the

'° As check airman, Plaintiff was to keep other

pilot's working for Air East current and up to par in

their flying skills. It would have been Plaintiff's job,

as check airman, to give the other pilot's check

rides, on a regular six month basis as required by the

F.A.R.s.

necessary F.A.A. approvals required to operate.

When one of the owners of Air East advised Bishop

that he had hired Plaintiff as chief pilot and check

airman, Bishop’s response was to the effect that he

(Bishop) and the F.A.A. would never give Phil Platt

the necessary authorization needed by a chief pilot

or check airman. Bishop mentioned that Plaintiff

"had given the Baltimore office a hard time" and that

Plaintiff was the subject of an ongoing F.A.A.

investigation. The latter disciosure was a clear

violation of 18 U.S.C. 81905 and 49 U.S.C. Appx.

§1472 (f), two criminal statutes.

26. Air East fired Plaintiff on the night before

he was to Start his job.

27. On September 25, 1990, based upon two

absolutely trivial and false allegations made by the

Defendants L. thle and J. thle, the F.A.A. issued an

Emergency Order of Revocation signed by William G.

Nelmes, attorney for the Office of the Assistant

Chief Counsel of the F.A.A. located in Atlanta,

Georgia. The ake Stripped Plaintiff of all pilot

certificates possessed by him immediately upon

receipt of the document in the mail. This total loss

of the right to fly and/or earn a living in aviation was,

understandably, devastating to Plaintiff.

28. By letter dated September 28, 1989,

signed by Richard Lewis Faber, Esq., Senior

Enforcement Attorney for the Office of Assistant

Chief Counsel, Plaintiff was advised that (1) the

Emergency Order of September 25 had been

canceied, and (2) that Plaintiff was legally able to

exercise all rights granted under his licenses. Also

enclosed with the letter was a Notice of Proposed

Certificate Action Proposing to revoke all of

Plaintiff's licenses on a non-emergent basis.

29. On January 31, an informal meeting was

held at the offices of the Assistant Chief Counsel in

Atlanta, Georgia.

30. On February 5, 1991, the F.A.A. issued

an Order of Revocation depriving Plaintiff of his

pilot's licenses. The Order is presently being

appealed before the National Transportation Safety

Board in a proceeding styled as F.A.A. vs Platt, SE

11-708.

31. Both allegations upon which the F.A.A. is

relying to issue the Order of Revocation, were

brought by J. lhle and L. Ihle, respectively.

32. The first supposed event was an alleged

Charter flight whereby Plaintiff flew an official of

Hyde County, North Carolina from Swan Quarter,

North Carolina to Ocracoke. The F.A.A. received a

ic ceeeernenesinenieeeeaeeaeeeeentateeeeaiel

report from the Defendant Linda Ihle by which she

claims to have "chartered" the flight in question.

Ms. Ihle’s motives for the fabrication are unknown,

however, Mr. Platt supplied evidence to the F.A.A.

that he had an arrangement with the County by

which he would lease his airplane(s) to them to help

their officials get around the county faster than

would otherwise be possible. The flight was in

accordance with the agreement. At the time, L. Ihle

offered to pay for the flight and Mr. Platt explained

that she need not as the County would pay for the

flight pursuant to his agreement with the County. L.

lhle insisted on Paying. Plaintiff accepted L. Ihle’s

check for the proper amount for the lease of an

airplane - far less than a charter flight would have

cost.

33. Notwithstanding the evidence of the

arrangement which existed between the Plaintiff and

Hyde County, the F.A.A. relied, and continues to

rely, on L. Ihle’s bald, unsubstantiated allegation,

that she "chartered" a flight from Plaintiff, to pursue

its February 5, 1991, Order of Revocation.

34. The second alleged violation dealt with a

flight which took place on May 10, 1989, by which

Plaintiff flew Mrs. Elizabeth O. Howard from

Ocracoke Island to New Bern and back. The reality

of the situation was that Ms. Howard asked Plaintiff

to fly her to New Bern for a sum of money. Plaintiff

explained to Mrs. Howard that he did not possess a

valid license to perform charter flights for

remuneration. However, he explained that she could

lease his airplane for a nominal amount of money

and have any pilot fly it for her. Mrs. Howard asked

Plaintiff to do her a favor and pilot the airplane.

Plaintiff agreed to help Ms. Howard, a

septuagenarian, even though he could not be paid for

his time flying or waiting for Ms. Howard to finish

her business in New Bern.

35. In its exuberance to "get" Plaintiff and

pay him his retribution, the F.A.A., in the form of

Defendant Glavin, wrote up a supposed “Interview”

with Mrs. Howard which seemingly recounted what

Mrs. Howard told the interviewers, the Defendants

Glavin and Scarfeo, on June 21, 1990 at 10:30 a.m.

The interview reflected that Mrs. Howard took an

“air charter" flight for one hundred ($100.00)

dollars. The "interview" statement was witnessed

by J. lhle and signed at the bottom by Scarfeo and

Glavin as F.A.A. Inspectors.

36. What really occurred that day was that

the Defendant J. Ihle came to visit Mrs. Howard’s

home and asked her to sign the pre-prepared

"Interview" statement. No one from the F.A.A. was

present that day, or any other day, according to Ms.

Howard. She was not told what the meaning of the

word "charter" was and has clearly stated in later

affidavits that she knew that she was simply renting

an airplane and Plaintiff was doing her a favor when

he acted as pilot. The "interview" was created by

the F.A.A. Inspectors, Scarfeo and Glavin,

handwritten by Glavin and, in complicity and

conspiracy with J. Ihle, Ms. Howard was tricked into

signing the created evidence.

37. The two alleged violations were simply

the result of malice, hate and contempt which the

two Defendants, J. !hle and her daughter L. Ihle,

hold the Plaintiff; a contempt which is apparently

shared by the vindictive F.A.A. inspectors. All of

these actions went on and continue to go on

notwithstanding numerous protests the Plaintiff has

made to F.A.A. officials.

COUNT |

42 U.S.C. §1985(3)

Plaintiff, Philemon K. Platt, sues J. Ihle, L.

ihle, individually, Glavin, Scarfeo and Bishop, in their

individual and official capacity, and the F.A.A., and

alleges:

38. The factual allegations contained in

paragraphs 1 through and including 37 are

incorporated herein by reference as if fully restated

herein.

39. This Count is a claim for legal and

equitable remedies to redress the deprivation of

rights secured to Plaintiff by the Civil Rights Act of

1871, 42 U.S.C. 81985(3), arising out of a

conspiracy by Defendants to deprive Plaintiff of his

right to make and enforce contracts, the equal

protection of the laws and the right to due process

as are guaranteed to all citizens of the United States

under the United States Constitution.

40. The Defendants joined together to act in

concert to deprive Plaintiff of his basic right to earn

a living in his chosen field.

41. Reynold Bishop, acting outside of the

scope of his employment, and also on behalf of the

F.A.A., filed a false report of an "operation base

check" which he did not even attempt to do on

March 15, 1989 or on any other day. He further

threatened the owner of Air East that he would

never authorize Plaintiff as a chief pilot or a check

airman. During the same investigation he unlawfully

disclosed that Plaintiff was the object of an F.A.A.

investigation in violation of 18 U.S.C. §1905 and 49

U.S.C. Appx. §1472 (f).

42. Inspector Glavin handwrote a document

containing false statements which Purported to be an

interview statement of Mrs. E. Howard. He then

had his co-conspirator, J. thle, trick Mrs. Howard

into signing the document. Inspectors Glavin and

Scarfeo then signed the document creating the

impression that they had interviewed Mrs. Howard.

43. J. lhle complained to the F.A.A. of illegal

Operations at the Ocracoke Airport by Plaintiff when

he was conducting no operations at the airport

whatsoever - legal or otherwise. J. ihle encouraged

a friend and her friend’s daughter to complain to the

F.A.A. about a supposed charter flight that Plaintiff

never undertook simply to attempt to cause Plaintiff

problems with the F.A.A. Lastly, she took part in

the conspiracy to create the false affidavit of Mrs.

Howard. All of her actions were aimed at a

concerted effort with the other Defendants to

destroy Plaintiff and put him out of business.

44. L. Ihle, not coincidentally asked Plaintiff

to fly a Hyde County Inspector to Ocracoke for her.

L. Ihle did not realize that Plaintiff had an

arrangement with Hyde County to lease its airplanes

whenever its officials desired to come to Ocracoke.

When Plaintiff flew the inspector to and from

Ocracoke, acting only as the pilot of the leased

airplane, he was going to charge the County for the

aircraft rental. L. ihle insisted on paying him, using

her own funds. It was explained to her by Plaintiff

that it was not necessary for her to pay anything as

the County would pay the bill for airplane rental. L.

Ihle insisted on using her own funds. Plaintiff

thought it strange but allowed her to pay by check.

All of L. ihle’s actions were simply to try to "setup"

Plaintiff to make it appear as if were in the charter

business without proper F.A.A. approval. Her

actions were aimed at a concerted effort, with the

other Defendants, to destroy Plaintiff and put him

Out of business.

WHEREFORE, Plaintiff requests relief as

follows:

A. For economic damages including, but not

limited to, loss of earnings, benefits or employment

including sick leave, vacation leave and others, plus

attorney's fees incurred in pursuing this case, as well

as for defending F.A.A. v Platt before the N.T.S.B.,

SE 11-708, in the amount of $500,000.00:

B. For compensatory damages for losses

resulting from humiliation, mental anguish and

damage to Plaintiff's name, professional reputation

and standing, in the amount of $500,000.00;

C. For pre-judgment interest on the amount of

lost earnings and other employment benefits, at the

prevailing rate allowed by law;

DO. For punitive damages in the amount of

$5,000,000.00;

E. That the F.A.A. expunge all negative and

derogatory comments or references in any official

government files relative to any and all of the facts

complained of herein;

F. For costs of this suit, including reasonable

attorney's fees;

G. For such other and further relief as the

Court may deem proper.

COUNT Il

42 U.S.C. §1986

Plaintiff, Philemon K. Platt, sues the unnamed

directors and supervisors of the Defendants, Scarfeo,

Glavin and Bishop, in their personal and official

Capacities, and the F.A.A., and alleges;

45. The factual allegations contained in

Paragraphs 1 through and including 44 are

incorporated herein by reference as if fully restated

herein.

46. This Count is for legal and equitable

remedies to redress the deprivation of rights secured

to Plaintiff by the Civil Rights Act of 1871, 42

U.S.C. §1986, arising out of a conspiracy by the

Defendants to deprive Plaintiff of his right to make

and enforce contracts, the equal protection of the

laws and the right to due process as are guaranteed

to all citizens of the United States under the United

States Constitution. ;

47. At all times relevant herein, the F.A.A.,

its executive staff and the unnamed supervisors of

the F.A.A. employees named as Defendants in this

case, knew or should have known of said

conspiracy, retaliation, disparate treatment and

harassment, yet, neglected and refused to intercede

and prevent same. Defendants are sued in their

individual capacities.

WHEREFORE, Plaintiff requests relief as

follows:

A. For economic damages including, but not

limited to, loss of earnings, benefits or employment

including sick leave, vacation leave and others, plus

attorney’s fees incurred in pursuing this case, as well

as for defending F.A.A. v Platt before the N.T.S.B.,

SE 11-708, in the amount of $500,000.00;

B. For compensatory damages for losses

resulting from humiliation, mental anguish, and

damage to Plaintiff's name, professional reputation

and standing, in the amount of $500,000.00:

C. For pre-judgment interest on the amount of

lost earnings and other employment benefits, at the

prevailing rate allowed by law;

D. For punitive damages in the amount of

$5,000,000.00;

E. That the F.A.A. expunge all negative and

derogatory comments or references in any official

government files relative to any and all of the facts

complained of herein:

F. For costs of this suit, including reasonable

attorney's fees;

G. For such other and further relief as the

Court may deem proper.

COUNT Ill

CIVIL CONSPIRACY

Plaintiff, Philemon K. Platt, sues J. Ihie and L.

ihle, individually, Scarfeo, Glavin and Bishop, in their

individual and official capacities, and the F.A.A., and

alleges;

48. The factual allegations contained in

paragraphs 1 through and including 47 are

incorporated herein by reference as if fully restated

herein.

49. The facts alleged in Counts | and |!

constitute a civil conspiracy under North Carolina

Law.

WHEREFORE, Plaintiff requests relief as

follows:

A. For economic damages including, but not

limited to, loss of earnings, benefits or employment

including sick leave, vacation leave and others, plus

attorney's fees incurred in pursuing this case, as well

as for defending F.A.A. v Platt before the N.T.S.B.,

SE 11-708, in the amount of $500,000.00;

B. For compensatory damages for losses

resulting from humiliation, mental anguish, and

damage to Plaintiff’s name, professional reputation

and standing, in the amount of $500,000.00:

C. For pre-judgment interest on the amount of

lost earninas and other employment benefits, at the

prevailing rate allowed by law;

D. For punitive damages in the amount of

$5,000,000.00;

E. For costs of this suit, including reasonable

attorney's fees;

F. For such other and further relief as the

Court may deem proper.

COUNT IV

MALICIOUS INTERFERENCE WITH THE RIGHT TO

CONDUCT ONE’S BUSINESS

Plaintiff, Philemon K. Platt, sues J. !hle and L.

lhle, individually, Scarfeo, Glavin and Bishop, in their

individual and official capacities, and the F.A.A., and

alleges;

50. The factual allegations contained in

paragraphs 1 through and including 49 are

incorporated herein by reference as if fully restated

herein.

51. As a result of the actions of all of the

Defendants, the Plaintiff has not been able to

operate his charter airline business for a lengthy

period of time; Plaintiff was also forced to expend

time and money to defend an action based upon

tainted evidence which, if successful, would deprive

him of the right to conduct his business as a flight

instructor, and commercial pilot.

52. These malicious acts were undertaken by

Defendants with the specific intent to deprive

Plaintiff of his ability to earn a living and conduct his

business as he sees fit: these acts have caused

Plaintiff great harm and damage, both pecuniary and

otherwise.

WHEREFORE, Plaintiff requests relief as

follows:

A. For economic damages including, but not

limited to, loss of earnings, benefits or employment

including sick leave, vacation leave and others, plus

attorney's fees incurred in Pursuing this case, as well

as for defending F.A.A. v Platt before the N.T.S.B.,

SE 11-708, in the amount of $500,000.00;

B. For compensatory damages for losses

resulting from humiliation, mental anguish, and

damage to Plaintiff's name, professional reputation

and standing, in the amount of $500,000.00;

C. For pre-judgment interest on the amount of

lost earnings and other employment benefits, at the

prevailing rate allowed by law;

D. For punitive damages in the amount of

$5,000,000.00;

E. For costs of this suit, including reasonable

attorney's fees;

F. For such other and further relief as the

Court may deem proper.

COUNT V

FIFTH AMENDMENT

Plaintiff, Philemon K. Platt, sues Scarfeo,

Glavin and Bishop, individually and in their official

Capacities, the F.A.A., J. lhle and L. thle, and

alleges;

53. The factual allegations contained in

paragraphs 1 to and including 52 are incorporated

herein by reference as if fully restated herein.

54. This claim is for legal and equitable

remedies to redress the injuries caused by the

F.A.A., its employees and the private citizen

Defendants conspiring with them, to Plaintiff by the

deprivation of the right to due process secured to

Plaintiff by the Fifth Amendment of the United

States Constitution and the right to equal protection

of ihe law as all citizens are under tne provisions of

the United States Constitution.

55. The actions of the F.A.A. in pursuing the

taking of Plaintiff's pilot’s licenses based on

allegations known to the F.A.A. to be false and

based upon evidence known to the F.A.A. to be at

best, tainted, and at worst, illegally manufactured,

constitutes a deprivation of Plaintiff's right to due

process as such right is articulated and guaranteed

by the Fifth Amendment of the United States

Constitution.

56. The consistent and unrelenting

harassment by officials of the F.A.A. of the Plaintiff

for a period of over ten years constituting such

disparate treatment as to deny Plaintiff equal

protection under the laws of the United States.

57. Conspiracy of F.A.A. employees with

other non-Federally employed citizens of the United

States to deprive Plaintiff of his liberty and his

property constitutes a denial of due process by all of

the Defendants named herein.

598. The deprivations of Plaintiff's basic

constitutional rights have caused him great harm and

damage.

WHEREFORE, Plaintiff requests relief as

follows:

A. For economic damages including, but not

limited to, loss of earnings, benefits or employment

including sick leave, vacation leave and others, plus

attorney's fees incurred in pursuing this case, as well

as for defending F.A.A. v Platt before the N.T.S.B.,

SE 11-708, in the amount of $500,000.00;

B. For compensatory damages for losses

resulting from humiliation, mental anguish, and

damage to Plaintiff's name, professional reputation

and standing, in the amount of $500,000.00;

C. For pre-judgment interest on the amount of

lost earnings and other employment benefits, at the

prevailing rate allowed by law;

D. For punitive damages in the amount of

$5,000,000.00;

E. That the F.A.A. expunge all negative and

derogatory comments or references in any official

government files relative to any and all of the facts

complained of herein;

F. For costs of this suit, including reasonabie

attorney's fees;

G. For such other and further relief as the

Court may deem proper.

COUNT VI

MALICIOUS INTERFERENCE WITH CONTRACT

Plaintiff, Philemon K. Platt, sues Scarfeo,

Glavin and Bishop, in their individual and official

Capacities, and the F.A.A., and alleges;

99. The factual allegations contained in

Paragraphs 1 through and including 58 are

incorporated herein by reference as if fully restated

herein.

60. That when Reynold Bishop was advised

by Ms. Mary Bender, one of the owners of Air East

at that time, that she had hired Plaintiff as chief pilot

and check airman, Bishop maliciously and with intent

to interfere with the established contract, advised

Mary Bender that Air East would never obtain

approval for Plaintiff as either check airman or chief

pilot by the F.A.A. Bishop went on to unlawfully

disclose that Platt was under investigation, in

violation of 18 U.S.C. §1905 and 49 U.S.C. Appx.

§1472 (f).

61. Bishop's intimidation worked. Air East

backed out of the contract on the day before Plaintiff

was to begin his duties under the employment

contract.

62. By losing the contract, Plaintiff suffered

great harm and damage, both pecuniary and

otherwise.

WHEREFORE, Plaintiff requests relief as

follows:

A. For economic damages including, but not

limited to, loss of earnings, benefits or employment

including sick leave, vacation leave and others, plus

attorney's fees incurred in pursuing this case, as well

as for defending F.A.A. v Platt before the N.T.S.B.,

SE 11-708, in the amount of $500,000.00;

B. For compensatory damages for losses

resulting from humiliation, mental anguish, and

damage to Plaintiff's name, professional reputation

and standing, in the amount of $500,000.00;

C. For pre-judgment interest on the amount of

lost earnings and other employment benefits, at the

prevailing rate allowed by law;

D. For punitive damages in the amount of

$5,000,000.00;

E. For costs of this suit, including reasonable

attorney's fees;

F. For such other and further relief as the

Court may deem proper.

Gary Clemmons

Stubbs, Perdue, Chesnutt,

Wheeler & Clemmons

P.O. Drawer 1654

New Bern, NC 28563

(919) 633-2700

Charles B. Zuravin

Charles B. Zuravin, P.A.

11032 Two Ships Court

Columbia, Maryland 21044

(301) 992-4799

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

NORTH CAROLINA

ELIZABETH CITY DIVISION

No. 91-12-CIV-2-BO

PHILMON K. PLATT,

Plaintiff,

ORDER

V )

JUDITH IHLE, et ai. )

Defendants. .

This matter comes before the undersigned United

States District Judge for ruling on the pending motions.

The Plaintiff has filed a motion for reconsideration of the

court’s order granting defendants Judith and Linda Ihle s

motions to dismiss and a motion to amend the complaint

The Ihle’s have filed a motion for sanctions, and on behalt

of the Federal Aviation Administration ("F.A.A.") and its

employees, the United States Government has filed a

as the party defendant, a motion to strike the claim for

punitive damages and a motion to strike the demand for a

jury trial. In his response to the government's motion to

dismiss, the plaintiff conceded the following: Counts one

and two of the amended complaint are inappropriate under

the facts presented and thus should be dismissed; the

United States should be substituted in lieu of the F.A.A.,

and all claims against the United States should be

dismissed; and the claims against Defendants Scarfeo,

Glavin, and Bishop in their official Capacities should be

dismissed. Accordingly, the only counts of the amended

complaint which the court must consider are counts three

through five against defendants Judith and Linda Ihle. and

counts three through six against defendants Scarfeo.

Glavin and Bishop in their individual Capacities.

[he court need not consider the plaintiff's motion

to amend the complaint with respect to the government

because the plaintiff can, as a matter of right, amend the

complaint anytime prior to a responsive pleading being

filed by the defendant. The plaintiff amended his

complaint prior to any response by the government. The

motion to dismiss filed by the government addressed both

the original complaint and the amended complaint. This

situation can be distinguished from the situation in LS

Development Corp. v. Peoples Federal Savings & Loan,

873 F.2d 731 (4th Cir. 1989), in which the Fourth Circuit

held that a party has the right to notice and an opportunity

to be heard prior to granting summary judgment sua

sponte. In this case, the defendant had notice of the

amended complaint and filed its motion to dismiss

addressing both complaints. Further, the plainuff

responded to the government’s motion to dismiss. There

was adequate notice of the amended complaint to all

parties.

Therefore, the court will Only consider the

plaintiffs motion for reconsideration of the court’s

previous order allowing the [hles’ motior ‘o dismiss. the

plaintiffs motion to amend the complaint against the

[hles, the [hles’ motion for sanctions, and the F.A.A,

employees’ motions to dismiss.

STATEMENT OF FACTS

The plaintiff is a professional pilot who operates

Pamlico Air Services from his home in Ocracoke. North

Carolina. The plaintiff filed his complaint seeking

damages against the F.A.A., its employees and two

civilians for allegations of harassment, abuse of process

and civil conspiracy. The plaintiff contends that the

defendants have conspired together to damage the plaintiff

and his air taxi business which is based in Ocracoke.

North Carolina. The plaintiff contends that he was first

subjected to harassment and intimidation by the F.A.A.

while he was in the air charter business in Easton,

Maryland. He filed a law suit against the F.A.A. at that

time which was settled out-of-court. The gravamen of the

complaint at bar is that the F.A.A. and its employees have

continued to harass the plaintiff even after he filed suit

against the F.A.A. in 1980 to stop the harassment. This

conduct by the F.A.A. continued even after the plaintiff

moved from Maryland to North Carolina. This

harassment has hindered the plaintiff's ability to conduct

his business. Further, the F.A.A. has sought to revoke the

plaintiff's pilots license which the plaintiff claims is

further evidence of harassment.

CONCLUSIONS OF LAW

l. Plaintiff's Motion for Reconsideration of the

Court’s Order Granting Linda and Judith l[hles

Motions to Dismiss and the Plaintiff's Motion to

Amend the Complaint with Respect to the [hles.

The plaintiff relies on his Amended Complaint to

support his motion for reconsideration. The plaintiff

alleges that the Ihles are properly named defendants in the

counts of the amended complaint which allege civil

conspiracy, malicious interference with the right to

conduct one’s business, conspiring with federal officials to

deprive plaintiff of his rights to due process under the

Fifth Amendment of the United States Constitution. and

malicious interference with the right to contract. The

court will consider the plaintiff's amended complaint in

determining whether to strike its order of May 3, 1991.

In count five, the plaintiff claims that the

defendants conspired to deprive him of his due process

rights secured to him by the Fifth Amendment of the

United States Constitution. The plaintiff cites Canadian

Transport Co. V. United States, 663 F.2d 1081 (D.C. Cir.

1980) for the proposition that when civilians act in concert

with federal agents for federal purposes they are, in effect,

federal agents, and can be held liable for a deprivation of

Fifth Amendment due process rights. The D.C. Circuit in

Canadian Transport actually held that “private citizens,

acting in their private capacities, cannot be guilty of

violating due process rights. The Fifth Amendment is a

restraint. on the federal government, not on private

citizens." /d. at 1093. (footnote omitted). As in

Canadian Transport, the lhles were acting in their private

Capacities not as government agents. [The Supreme Court

has held that federal officials can be held liable for due

process violations while they were acting in their official

capacities. Bivens v. Six Unknown Federal Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971) and

Davis v. Passman, 442 U.S. 228 (1979).

The plaintiff fails to present any argument that the

[hles acted in any official capacity to deprive the plainutt

of his due process rights. During their cooperation with

the F.A.A. they simply acted in their capacity as private

citizens. Therefore, count five of the amended complaint

must fail. If Count Five fails there are no other counts

that rest on federal question subject matter jurisdiction.

Furthermore, since there is no federal question jurisdiction

nor any diversity jurisdiction, the court my decline to

exercise its supplemental jurisdiction over state claims

over which it has original jurisdiction. 28 U.S.C. $1367.

The court finds no significant reason to retain the state

claims. Accordingly, the plaintiffs motion for

reconsideration of the granting of the Ihles’ motions to

dismiss is denied.

2. [hles’ Motion for Rule 11 Sanctions.

The Ihles’ motion for sanctions claims that the

plaintiff's complaints failed to state a claim upon which

relief could be granted and was completely frivolous. The

plaintiff's pro se complaint and amended complaint failed

to state a federal claim upon which relief could be

granted. The federal question counts were based on two

rules of law which a brief amount of research would have

revealed could not be applied to the facts presented against

the Ihles in this case. Rule 1! allows for sanctions if a

pleading is not warranted by existing law. Accordingly,

the Rule 11 sanctions against the plaintiff are allowed with

respect to the [hles. The plaintiff is directed to pay all

reasonable expenses of the [hles incurred in defending this

law suit including reasonable attorney’s fees.

3. The Government’s Motion to Dismiss the

Plaintiff's Complaint Against Defendant’s Scarfeo,

Glavin and Bishop in Their Individual Capacities.

The only counts left in the Amended Complaint are

the counts against defendants Scarfeo, Glavin, and Bishop

in their individual capacities. Scarfeo, Glavin and Bishop

are F.A.A. employees who the plaintiff alleges maliciously

interfered with his right to conduct business, maliciously

interfered with his right to contract, violated his due

process rights and civilly conspired against the plaintiff to

deprive him of his rights under 42 U.S.C. §§ 1985 (3) and

1986.

Individual federal officers can be sued for

violations of f the constitutional rights of an individual.

Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). Jurisdiction is allowed

against federal officials in their individual capacities only

where the conduct alleged rises to the level of a

constitutional violation. The plaintiff alleges constitutional

violations of his "property" and "liberty" rights by the

defendants for conspiring to destroy him professionally, by

filing false records in federal files, obtaining and relying

on false affidavits to the plaintiff's detriment, retaliating

against plaintiff for having brought a successful suit

against the F.A.A. ten years ago, depriving him of a

certificate to carry passengers for hire in airplanes, causing

him to be fired from a lucrative job for which he had just

been hired, violating F.A.A. standards by issuing an

emergency revocations of all of plaintiff's pilot licenses

and generally taking action against plaintiff so as to make

it impossible for him to earn a living in aviation. The

plaintiff concludes his pleading by stating " [i]t can hardly

be argued that what Plaintiff has suffered at the hands of

the defendants does not rise to the level of a ‘liberty’ or

‘property’ interest protected by the due process clause of

the Fifth Amendment and its equal protection component."

The plaintiff makes numerous conclusory statements about

the wrongs he suffered at the hands of the defendants, but

he fails to allege with specificity any violation of his

constitutional rights. The plaintiff must allege facts

which, taken as true, demonstrate conduct that all

reasonable public officials would know violates a

particular constitutional guarantee. Elliott v. Perez, 751

F.2d 1472 (Sth Cir. 1985). In asserting a constitutional

claim against a government official, the plaintiff must

allege "with particularity all material facts on which [the

plaintiff] contends he will establish his right to recovery,

which will include detailed facts supporting the contention

that the please of immunity cannot be sustained." /d. at

1482.

Accordingly, the plaintiff has not established any

conduct by the defendants that rises to the level of

constitutional violations. Therefore, the plaintiffs action

against the defendants cannot be maintained.

CONCLUSION

For the reasons stated above the court makes the

following ruling: the plaintiff's motion for reconsideration

of the court’s order granting defendants Judith and Linda

[hle’s motions to dismiss DENIED; the Ihles motion for

sanctions is GRANTED; the motion to dismiss defendants

Scarfeo, Glavin and Bishop is GRANTED. Accordingly,

all other motions before the court are moot.

SO ORDERED this 17th day of September, 1991.

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PHILEMON K. PLATT

Plaintiff-Appellant.

V. No. 91-2258

JUDITH IHLE; LINDA IHLE; AND

FEDERAL AVIATION

ADMINISTRATION, et al.

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth

City. Terrence W. Boyle, District Judge.

(CA-91-12-CIV-2-BO)

Argued: March 2, 1992

Decided: June 22, 1993

Before WIDENER and LUTTIG, Circuit Judges, and

MACKENZIE, Senior United States District Judge for

the Eastern District of Virginia, sitting by

designation.

Affirmed by unpublished per curiam opinion.

PLATT v. IHLE

COUNSEL

ARGUED: Charles Barry Zuravin, Columbia,

Maryland, for Appellant Steven Ellsworth Lacy, New

Bern, North Carolina; Linda Kaye Teal, Assistant

United States Attorney, Raleigh, North Carolina, for

Appellees. ON BRIEF: Margaret Person Currin,

United States Attorney, Raleigh, North Carolina, for

Appellees.

Unpublished opinions are not binding precedent in

this circuit. See |.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

Philemon K. Platt appeals from an order of the

United States District Court for the Eastern District

of North Carolina dismissing his action brought under

Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971),

and imposing sanctions in favor of two defendants

pursuant to Fed. R. Civ. P. 11. We agree the Platt

has failed to state a claim under the Bivens doctrine,

and we find that the district court did not abuse its

discretion in imposing costs and attorney’s fees as to

the claims against the private defendants, the Ihles.

Accordingly, we affirm.

The relevant facts alleged in Platt’s amended

complaint, which we assume as true for present

purposes, are as follows. Appellant Platt is a

professional airman who, prior to the events giving

rise to this suit, held several types of pilot's licenses,

including a commercial pilot’s license and an air

taxi/charter operator's license. In 1988 Platt moved

to Ocracoke, North Carolina, where he intended to

pursue his career in the aviation field. In addition to

forming his own air taxi business in Ocracoke, in

October, 1989, Platt accepted a position as chief

pilot and check airman with Air East, a small airline

operating out of New Bern, North Carolina. Air East

had been having trouble obtaining certain Federal

Aviation Administration (FAA) approvals necessary

to operate as an airline, and Platt was hired in part

for his expertise in obtaining the needed approvals.

However, when the owners of Air East

informed Reynold Bishop, an FAA employee based in

Winston-Salem, North Carolina, that they had hired

Platt, Bishop gave them the impression that Platt

was not a competent airman and that they would be

unable to conduct their business with him on board.

Bishop informed them that "he and the F.A.A. would

never give Phil Platt the necessary authorization

needed by a chief pilot or check airman,” that Platt

“had given the Baltimore office [of the FAA] a hard

time,"' and that Platt was the Subject of an

ongoing FAA investigation. Allegedly as a result of

Bishop's negative statements, Air East fired Platt the

night before he was to begin work.

Platt encountered further difficulties with the

FAA after the Air East episode, this time in

connection with his activities as a pilot and air taxi

operator. The airport at Ocracoke is owned by the

United States Park Service and does not allow

‘Between 1977 and 1988 Platt owned and

operated an air charter business in Easton, Maryland.

During those years Platt experienced a turbulent

relationship with the Baltimore Office of the FAA.

That poor relationship culminated in Platt’s filing suit

against the FAA in federal court in 1981. The

lawsuit was settled favorably to Platt, a fact which,

he alleges, caused FAA officials to bear a grudge

against him from that point forward.

commercial aviation operations to be based on that

airfield. Though Platt disputes the scope of the

prohibition on commercial operations, he apparently

agrees that traditional charter flights may not be

conducted from the Ocracoke airport.? In any

* As we describe more fully below, the FAA

revoked Platt’s license on the grounds that he had

violated the prohibition on commercial flights out of

Ocracoke by flying persons from Ocracoke to the

mainland in exchange for money. Platt does not

dispute that those flights occurred or that he was

compensated for them. Rather, his argument

appears to be that the flights were not prohibited

commercial flights because they were not "charter"

flights, meaning that his passengers did not pay him

for performing the service of flying them in his

airplane to their destinations. He instead

characterizes these flights as rentals of the airplane

itself, combined with his gratuitous service as pilot.

On this distinction he bases his claims against the

inles.

On its face this characterization may seem to

be nothing more than a ruse to evade the restrictions

on commercial flights from Ocracoke airport.

However, we need not delve into the merits of this

distinction under the complex body of aviation law,

as our disposition of this Bivens action for damages

event, the FAA, believing that Platt had violated

federal regulations by conducting charter flights to

and from Ocracoke airport, took steps to revoke

Platt’s pilot’s licenses on February 5, 1991. The

FAA's order revoking those licenses presently is on

appeal before the National Transportation Safety

Board (NTSB).

The buik of Platt’s claims arise out dean

leading to the revocation of his licenses. First,

though the record does not reveal the exact date, at

some point during 1989 Platt flew an official of Hyde

County, North Carolina, from Swan Corner, North

Carolina, to Ocracoke. That flight apparently was

arranged Linda Ihle, a private citizen and resident of

does not depend on the legality of the flights in

question or the propriety of the revocation of Platt’s

licenses. We instead leave these matters to the

expertise of the F.A.A. and the N.T.S.B.

Ocracoke. Upon completion of the flight, Linda?

offered to pay Platt for his services. Platt initially _

refused to accept the payment because he had a

contractual arrangement with Hyde County whereby

he would lease his airplanes to county officials at

county expense when needed for official travel.

Ultimately, however, Platt accepted Linda’s check in

compensation for traiisporting the official. Sometime

thereafter, Linda Ihle filed a report with the FAA

recounting her arrangement of that flight and her

payment to Platt.

The second incident leading to the revocation

of Platt’s licenses involved Linda Ihie’s mother,

Judith. On May 10, 1989, Platt flew Mrs. Elizabeth

O. Howard from Ocracoke to New Bern and back in

3. For purposes of clarity, we refer to the private

defendants in this case, the thles, by their first

names.

exchange for an unspecified amount of money.

During June 1989, Judith apparently learned of this

flight and so informed FAA officials Edward F. Glavin

and Dennis Scarfeo. Glavin then prepared a

statement or "interview" report to be signed by Mrs.

Howard recounting her paid flight with Platt. Judith

lhle then took this statement to Mrs. Howard, who

signed it. On the strength of these reports regarding

these flights, the FAA moved to revoke Platt’s

licenses.

On May 8, 1991, Platt filed a pro se complaint

in the district court against Judith and Linda Ihle and

FAA employees Bishop, Glavin and Scarfeo‘

claiming, on various legal theories including state tort

* The original complaint also named the FAA

itself and the FAA employees in their official

capacities. Platt later consented to the dismissals of

these claims.

law and 42 U.S.C. § 1983, that the defendants had

conspired to fabricate FAA charges against him in an

effort to damage his reputation and close his air taxi

business. On May 3, 1992, the court granted Judith

and Linda Ihle’s motion to dismiss pursuant to Fed

R. Civ. P. 12(b)(6). On May, 10, 1991, the thies

moved the court for Fed. R. Civ. P. 11 sanctions

against Platt. Before the court ruled on the

sanctions motion and before the other Defendants

responded to the complaint, Platt, now through

counsel, filed an amended complaint against all of

the defendants, including the lhles. This Complaint

essentially repeated the factual allegations of the

original complaint but added claims under Bivens,

supra, against all defendants. As the lhles had

already been dismissed from the case, Platt sought

to have them reinstated by naming them in the

amended complaint and filing a motion for

reconsideration of their cae dismissal. The

government, acting on behalf of the FAA

defendants, moved to dismiss the complaint as

against Bishop, Glavin and Scarfeo.

The district court, by order dated September

17, 1991, granted the motion to dismiss defendants

Bishop, Glavin and Scarfeo, denied Platt’s motion to

reconsider the Ihles dismissal, and awarded Rule 11

sanctions in favor of the Ihles. As to the claims

against Bishop, Glavin and Scarfeo, the court held

that Platt failed to allege any specific facts which

would support a finding that they had violated Platt’s

constitutional rights or that they would not be

shielded from liability by the doctrine of qualified

immunity. As to the Ihles the court held that the

amended complaint failed to allege with sufficient

specificity that they acted in concert with the FAA

defendants so that, even if a Bivens claim may lie

against private individuals in narrow circumstances,

Platt had failed to state a claim against them.

Further, the court found the claims against the Ihles

SO insubstantial as to be frivolous and directed Platt

to pay the Ihles’ reasonable expenses incurred in

defending the suit, including reasonable attorney's

fees. Finally, having disposed of the only remaining

federal claim in the suit, the court declined to

exercise pendent jurisdiction over Platt’s state law

claim.°

Being in substantial agreement with the

5 Platt does not appeal the dismissal of the

state claims or his other federal claims; thus, the

only issues remaining in this case for our

consideration are the Bivens claims against the FAA

employees in their individual capacities and the Ihles,

as well as the sanctions award against Platt.

reasoning ofthe district court, we shall elaborate on

its Opinion only briefly, largely to take note of two

recent decisions of the United States Supreme Court

that only bolster the district court’s conclusions. For

purpose of analysis Platt’s Bivens claims can be

divided into three categories: 1) the claims against

the lhles for their participation in gathering

information regarding Platt’s allegedly _ illegal

commercial flights; 2) the claim against FAA

employee Bishop for his alleged defamatory

statements to Air East; and 3) the claims against

Bishop, Glavin, and Scarfeo for their alleged

fabrication of FAA violations leading to the

revocation of Platt’s pilot’s licenses. We address

each category in turn.

We need not address the question of whether

Bivens type action may have maintained against

private citizens in certain circumstances, Platt has

failed to allege with even minimal specificity any

concerted action on the part of the Ihles with the

FAA in this case. The amended complaint does not

allege any specific facts which, if proved, would

establish that the lhles conspired with the FAA to

violate Platt’s due process rights. Without its

conclusory pleading and unnecessary adjectives and

adverbs, Platt’s complaint alleges only that the Ihles

reported the facts of two incidents, Platt’s

compensated flights of a Hyde County and of Mrs.

Howard, the occurrence of which Platt does not

dispute. As we have described, see note 2, supra,

Platt only disputes the legal significance of these

reports, a matter of which, as we shall see, is for

resolution by the proper federal agencies. His quarrel

with the Ihles, then, is only that they brought the

occurrence of those flights to the attention of the

FAA. We are of the opinion that a private citizen's

relation of truthful information to a federal regulatory

agency does not give rise to a claim for damages

against that citizen even though that agency's use of

that factual information may be legally insupportable

or even tortious.

Accordingly, we concur with the district

court's denial of Platt’s motion seeking reinstatement

of the Ihles as defendants. In light of our agreement

with the court's disposition of the claims against the

lhles, we cannot say that the court abused its

discretion in awarding costs and attorney’s fees to

the Ihles under Rule 11. See Cooter & Gell v.

Hatman’s Corp. 496 U.S. 384, 399-405 (1990).

As for Platt’s second type of claim, that FAA

employee Bishop's alleged defamatory ®statements

to Platt’s prospective employer. Air East, led to his

termination, we are of the opinion that the recent

decision in Siegert v. Gilley, 59 U.S.L.W. 4465 (U.S.

1991), largely removes such claims from the realm

of injuries redressable through a Bivens cause of

action. S/egert was a clinical psychologist who had

been employed by the federai government at St.

Elizabeths Hospital in Washington, D.C. He resigned

from that post to avoid imminent termination on

grounds of alleged excessive absences and general

poor performance. He then began working as a

® At oral argument Platt’s counsel insisted that

Bishop’s statements were not defamatory,

presumably in an attempt to avoid the holding in the

Siegert case, as we describe below. We think the

clear implication of Bishop’s words, however, at

least was the Platt was incompetent and thus would

be a detriment to Air East’s operations. Thus, the

only fair characterization of this claim is one for

defamation.

civilian clinical psychologist at the United States

Army Hospital in Bremerhaven, West Germany. The

government requires that such personnel be

“credentialed,” and as part of the credentialing

process Siegert requested that his previous

supervisor at St. Elizabeths Hospital, one Gilley,

provide the Army with information on his job

performance and privileges while a member of their

staff. In response Gilley provided the Army with an

exceedingly negative report of ~Siegert’s

performance and qualifications, causing Siegert

ultimately to lose his position with the Army.

Siegert sued Gilley for damages under Bivens,

claiming that the report was false and defamatory

and thus that Gilley’s actions deprived Siegert of his

"liberty" interest in his job without due process of

law in violation of the Fifth Amendment to the

United States Constitution. The Court rejected this

contention and held that Siegert had “failed to

Satisfy the first inquiry in the examination of such a

[Bivens] claim; he failed to allege the violation of a

clearly established constitutional right." Siegert, 59

U.S.L.W. at 4467. According to the Court, damage

to one’s reputation due to the defamatory

statements of a federal official does not constitute a

deprivation of "liberty" within the meaning of the

Fifth Amendment even if that damage to reputation

leads to more concrete economic harm. To quote

the Court:

Defamation by itself, is a_ tort

actionable under the laws of most

States, but it is not a constitutional

deprivation

The statements contained in the letter

would undoubtedly damage the

reputation of one in [Siegert’s] position,

and impair his future employment

prospects. But the plaintiff in Pau/ v.

Davis [, 424 U.S. 693 (1976)] similarly

alleged serious impairment of his future

employment opportunities as weli as

other harm. Most defamation plaintiffs

attempt to show some sort of special

damage and out-of-pocket loss which

flows from the _ injury to their

reputation. But so long as_ such

damage flows from injury caused by

the defendant to a plaintiff's reputation

it may be recoverable under state tort

law but is not recoverable in Bivens action.

Siegert, 59 U.S.L.W. at 4467-68. We are of the

opinion that Platt’s claim against Bishop fall squarely

within the holding in Siegert, and thus we affirm the

district court’s dismissal of the claim related to his

statements to Air East.

Finally we address the remainder of Platt’s

claims against the FAA employee defendants, all of

~ which relate to the allegedly wrongful revocation of

his pilot’s licenses. The regulations of the FAA and

NTSB set out a comprehensive procedure whereby

a pilot having suffered the revocation of his licenses

may challenge the propriety of the revocation before

those agencies and ultimately, before the federal

courts. See generally 49 U.S.C. App. 88 1429,

1486; 14 C.F.R. Part 13 (1992) (FAA proceedings);

49 C.F.R. Part 821 (NTSB proceedings). As we

have noted, Platt indeed has availed himself of these

procedures and, at the time of filing the complaint in

this case had an administrative appeal pending

before the NTSB.

These statutory and administrative procedures

ultimately will determine whether the FAA in general,

and Bishop, Gavin and Scarfeo in particular, acted

lawfully in revoking Platt’s licenses. Certainly those

highly specialized agencies are uniquely qualified to

deal with what may prove to be complex issues of

federal aviation law. In Schweiker v. Chilicky, 487

U.S. 412 (1988), the Court recently made it clear

that the existence of such comprehensive remedial

scheme precludes an injured person from bringing a

Bivens damages action against the alleged

wrongdoers. We think the FAA and NTSB

procedures noted above are precisely the type of

remedial scheme that obviates the need for the

Bivens cause of action in light of Chilicky, and

accordingly we affirm the district court's dismissal of

all of Platt’s claims in this case growing out of the

revocation of his licenses.

For the foregoing reasons, the judgment of the

district court Is

AFFIRMED

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