Martin v. United States of America et al

Filing 22

ORDER: (1) granting 17 Defendants' Motion to Dismiss, and (2) Dismissing with Prejudice Plaintiff's First Amended Complaint. The Court grants Defendants' MTD (ECF No. 17) and dismisses with prejudice Plaintiff's FAC (ECF No. 16). This Order concludes the litigation in this matter. Signed by Judge Janis L. Sammartino on 8/31/2016. (kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RONALD LEWIS MARTIN,

Case No.: 15-CV-278 JLS (DHB)
Plaintiff,

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ORDER: (1) GRANTING
DEFENDANTS’ MOTION TO
DISMISS, AND
(2) DISMISSING WITH PREJUDICE
PLAINTIFF’S FIRST AMENDED
COMPLAINT

v.
UNITED STATES OF AMERICA, and
AVIATION SAFETY INSPECTOR
WAYNE LANER,

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Defendants.

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(ECF No. 17)

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Presently before the Court is Defendants the United States of America and Wayne

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Laner’s Motion to Dismiss. (MTD, ECF No. 17.) Also before the Court are Plaintiff

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Ronald Lewis Martin’s Opposition to (ECF No. 19) and the Defendants’ Reply in Support

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of (ECF No. 20) the MTD. The Court vacated the hearing and took the matter under

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submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 21.)

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Having considered the parties’ arguments and the law, the Court GRANTS Defendants’

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MTD (ECF No. 17) and DISMISSES WITH PREJUDICE Plaintiff’s First Amended

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Complaint (FAC, ECF No. 16).

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BACKGROUND

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Plaintiff is an air carrier pilot with over thirty years of piloting experience. (FAC

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¶ 16, ECF No. 16.) In 2006, Plaintiff was the Chief Pilot for Air Charter Express, Inc. (Id.
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at ¶ 18.) While employed by Air Charter Express, Inc., Plaintiff had several confrontations

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with Defendant Wayne Laner, the Federal Aviation Administration’s (FAA) Principal

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Operations Inspector for Air Charter Express, Inc. (Id. at ¶¶ 18–19.) Although Plaintiff

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prevailed on the merits of these confrontations, Plaintiff resigned from Air Charter Express,

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Inc. to avoid further confrontations with Defendant Laner. (Id. at ¶ 19.)

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In January 2007, Plaintiff began piloting for an FAA-certified air ambulance carrier,

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Critical Air Medicine, Inc., based in San Antonio, Texas. (Id. at ¶ 20.) Later that year,

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Plaintiff became San Diego Lead Pilot, earning over $68,000 per year. (Id.) When Critical

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Air Medicine, Inc. transferred its FAA Operating Certificate from San Antonio, Texas to

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San Diego, California in early 2008, Defendant Laner was assigned as its FAA Principal

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Operations Inspector. (Id. at ¶ 21.)

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In February 2008, Defendant Laner flight-tested Critical Air Medicine, Inc.’s Chief

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Pilot Bobby Wilson to determine his competence as a flight instructor. (Id. at ¶ 22.) Mr.

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Wilson played the role of flight instructor, while Plaintiff acted as his student. (Id. at ¶ 23.)

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Plaintiff’s decisions and actions during this check ride did not meet Defendant Laner’s

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expectations, and Defendant Laner proceeded to prepare a failure report for Plaintiff at the

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conclusion of the ride. (Id. at ¶¶ 24–25.) Plaintiff protested, noting that he was not acting

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as pilot-in-command and was not being “checked” by Defendant Laner. (Id. at ¶ 26.)

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Consequently, Defendant Laner did not issue a failure notice to Plaintiff, although he did

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discuss the check ride with Raymond Barrera, the General Manager of Critical Air

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Medicine, Inc. (Id. at ¶¶ 27–28.)

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Following the check ride and without explanation, Plaintiff was removed from flight

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status by Critical Air Medicine, Inc. and assigned menial tasks within the company. (Id.

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at ¶ 29.) As a part-time employee and general laborer, Plaintiff now earns twelve dollars

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per hour, or approximately $24,000 per year. (Id. at ¶ 32.)

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On February 15, 2012, Plaintiff requested a meeting with Defendant Laner. (Id. at

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¶ 53.) At the meeting, Defendant “LANER became agitated and ejected [Plaintiff] from

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LANER’s office.” (Id. at ¶ 53 (emphasis in original).) Defendant Laner then “caused to
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15-CV-278 JLS (DHB)

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be placed in [Plaintiff]’s FAA Program Tracking and Reporting System (PTRS) file[] a

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three-page letter” concerning the incident. (Id. at ¶ 54.)

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In May 2014, a pilot friend of Plaintiff informed Plaintiff that Defendant Laner had

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told a third party that Defendant Laner “had put a letter in [Plaintiff]’s FAA file that assured

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[Plaintiff] would never again fly for an air carrier.” (Id. at ¶ 34 (internal quotation marks

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omitted).) Mr. Barrera confirmed that Defendant Laner made that statement, and Plaintiff

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since has obtained through a Freedom of Information Act request a copy of the letter

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Defendant Laner placed in Plaintiff’s FAA PTRS file. (Id. at ¶¶ 35–36.)

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On September 12, 2014, Plaintiff filed an administrative claim with the FAA, which

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complained of Defendant Laner’s “causing written libelous statements to be entered into

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[Plaintiff]’s [PTRS] ‘file.’” (Id. at ¶ 7; see also FAC Ex. C, ECF No. 16 at 33.1) The FAA

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denied Plaintiff’s claim on October 30, 2014. (FAC ¶ 7, ECF No. 16; see also FAC Ex. C,

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ECF No. 16 at 35.)

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On February 10, 2015, Plaintiff filed an initial complaint. (ECF No. 1.) The Court

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dismissed Plaintiff’s cause of action for denial of due process against Defendant United

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States and dismissed Plaintiff’s cause of action for negligence per se in its entirety. (ECF

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No. 13.) Plaintiff filed his FAC on December 17, 2015 (ECF No. 16), and Defendants filed

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the instant MTD on January 19, 2016 (ECF No. 17).

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Pin citations to docketed materials refer to the CM/ECF page numbers electronically stamped at the top
of each page. The Court may properly consider the exhibits attached to Plaintiff’s FAC in evaluating
Defendants’ MTD. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court may . . .
consider certain materials[, including] documents attached to the complaint, . . . without converting the
motion to dismiss into a motion for summary judgment.”) (citing Van Buskirk v. CNN, 284 F.3d 977, 980
(9th Cir. 2002); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore’s
Federal Practice § 12.34[2] (3d ed. 1999)); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004) (“In resolving a factual attack on jurisdiction, the district court may review evidence beyond the
complaint without converting the motion to dismiss into a motion for summary judgment.”) (citing Savage
v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).
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15-CV-278 JLS (DHB)

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LEGAL STANDARD
I.

Dismissal Under Rule 12(b)(1)

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Federal courts are courts of limited jurisdiction, and as such have an obligation to

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dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States,

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718 F.2d 964, 965 (9th Cir. 1983). “The party asserting jurisdiction bears the burden of

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establishing subject matter jurisdiction on a motion to dismiss for lack of subject matter

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jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d

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981, 984 (9th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

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377 (1994); Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d

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1221, 1225 (9th Cir. 1989)).

“Dismissal for lack of subject matter jurisdiction is

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appropriate if the complaint, considered in its entirety, on its face fails to allege facts

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sufficient to establish subject matter jurisdiction.” Id. (citing Love v. United States, 915

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F.2d 1242, 1245 (9th Cir. 1990)).

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Motions for dismissal under Federal Rule of Civil Procedure 12(b)(1) may challenge

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jurisdiction facially or factually. Safe Air, 373 F.3d at 1039. A facial attack is one in which

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“the challenger asserts that the allegations contained in a complaint are insufficient on their

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face to invoke federal jurisdiction.” Id. In evaluating such a challenge, the court accepts

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the factual allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157

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n.1 (9th Cir. 2001). In contrast, where the defendant challenges the factual basis underlying

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the allegations, the court need not accept the allegations as true and may

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make factual determinations. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In ruling

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on a challenge to subject matter jurisdiction, the district court is ordinarily free to hear

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evidence

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resolving factual disputes.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.

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1983) (citing Thornhill Publ’g Co. v. Gen. Tel. Corp., 594 F.2d 730, 733 (9th Cir. 1979)).

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When making such a ruling, the district court may review evidence beyond the complaint

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without

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judgment. Savage, 343 F.3d at 1039 n.2 (citing White, 227 F.3d at 1242).

regarding

converting

jurisdiction

the

motion

and

to

to

rule

dismiss

on

into

that

a

issue

prior

motion

for

to

trial,

summary

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II.

Dismissal Under Rule 12(b)(6)

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a), which requires a “short and plain statement of the claim showing that the

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pleader is entitled to relief.”

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allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-

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me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to provide

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the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

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a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at

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555 (alteration in original). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’

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devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original)

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(quoting Twombly, 550 U.S. at 557).

Although Rule 8 “does not require ‘detailed factual

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

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when the facts pled “allow[] the court to draw the reasonable inference that the defendant

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is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to

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say that the claim must be probable, but there must be “more than a sheer possibility that a

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defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “[F]acts that are

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‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to

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relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true

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“legal conclusions” contained in the complaint. Id. at 678–79 (citing Twombly, 550 U.S.

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at 555). This review requires “context-specific” analysis involving the Court’s “judicial

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experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit

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the court to infer more than the mere possibility of misconduct, the complaint has alleged—
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but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ.

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P. 8(a)(2)). The Court will grant leave to amend unless it determines that no modified

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contention “consistent with the challenged pleading . . . [will] cure the deficiency.” DeSoto

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v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib.

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Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).

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ANALYSIS

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Plaintiff’s FAC alleges two causes of action under the Federal Tort Claims Act

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(FTCA), 28 U.S.C. §§ 1346(b), 2671–2680: abuse of process and negligence per se. (See

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generally FAC ¶¶ 37–69, ECF No. 16.) In addition to arguing that Plaintiff’s FAC is

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procedurally improper pursuant to Federal Rule of Civil Procedure 15(a)(2), Defendants

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move to dismiss both causes of action under Rule 12(b)(1) and Plaintiff’s first cause of

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action for abuse of process under Rule 12(b)(6). (See generally MTD Mem., ECF No. 17-

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1.) “Plaintiff admits that the claim against [Defendant] LANER and against the DOE

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defendants should be dismissed, and the United States should be the only defendant in this

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matter.” (Opp’n 2, ECF No. 19 (emphasis in original).) The Court therefore DISMISSES

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Plaintiff’s claims against Defendant Laner and analyzes Defendants’ grounds for dismissal

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with respect only to Defendant United States.

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I.

Procedural Propriety of the FAC Under Rule 15(a)(2) and Local Rule 15.1(c)

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Defendants first argue that Plaintiff’s FAC should be dismissed for failure to obtain

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Defendants’ written consent or this Court’s leave under Rule 15(a)(2) and for failure to file

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a red-lined version of the FAC as required by Civil Local Rule 15.1(c). (MTD Mem. 14,

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ECF No. 17-1.) Plaintiff explains that he “presumed that Defendant[s’] joining in th[e]

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Motion [to extend Defendants’ time to respond to the FAC] was evidence of their

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agreement [to Plaintiff’s filing his FAC], as was the Court’s granting of Leave to Amend

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that Complaint.” (Opp’n 2, ECF No. 19.)

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Although it is true that—strictly speaking—Plaintiff’s FAC is procedurally

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improper, the Court will review Plaintiff’s FAC on the merits in light of the liberal policy

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favoring amendment.

See, e.g., Vogelsang v. Zine, No. 2:09-CV-02885, 2010 WL
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2737190, at *8 n.7 (E.D. Cal. July 12, 2010) (reviewing complaint on the merits despite

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plaintiff’s failure to seek leave to amend or to attach a proposed amended complaint as

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required under the local rules); High Tech Burrito Corp. v. Amresco Commercial Fin. LLC,

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No. C 06-4341 SI, 2006 WL 2846737, at *3 (N.D. Cal. Sept. 29, 2006) (granting leave to

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amend despite plaintiff’s failure to submit a proposed amended complaint).

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II.

Subject-Matter Jurisdiction Under Rule 12(b)(1)

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Defendants argue that Plaintiff’s causes of action against the United States must be

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dismissed because Plaintiff has failed to show a waiver of the United States’ sovereign

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immunity. (MTD Mem. 18–21, 22–25, ECF No. 4-1.) “[T]he doctrine of sovereign

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immunity . . . ‘is an important limitation on the subject matter jurisdiction of federal

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courts.’”

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2007) (quoting Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006)). As a

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sovereign, the United States “is immune from suit unless it has expressly waived such

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immunity and consented to be sued.” Dunn & Black, 492 F.3d at 1087–88 (quoting Gilbert

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v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985)). Plaintiff bears the burden of showing

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that the United States has waived its sovereign immunity. Cato v. United States, 70 F.3d

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1103, 1107 (9th Cir. 1995) (citing Baker v. United States, 817 F.2d 560, 562 (9th Cir.

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1987)).

Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087 (9th Cir.

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The FTCA “waived the sovereign immunity of the United States for certain torts

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committed by federal employees.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475–

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76 (1994) (citing 28 U.S.C. § 1346(b)). Under the FTCA, a court has jurisdiction to hear

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any claim

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[1] against the United States, [2] for money damages, . . . [3] for
injury or loss of property, or personal injury or death [4] caused
by the negligent or wrongful act or omission of any employee of
the Government [5] while acting within the scope of his office or
employment, [6] under circumstances where the United States, if
a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.

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Id. at 477 (quoting 28 U.S.C. § 1346(b)) (alterations in original). The FTCA expressly

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excludes, however, “[a]ny claims arising out of . . . abuse of process[ and] libel . . . .” 28

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U.S.C. § 2680(h). An abuse of process claim—but not a libel claim—is allowable,

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however, to the extent it arises from “acts or omissions of investigative or law enforcement

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officers of the United States Government.” Id. “For the purposes of this subsection,

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‘investigative or law enforcement officer’ means any officer of the United States who is

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empowered by law to execute searches, to seize evidence, or to make arrests for violations

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of Federal law.” Id.

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A.

First Cause of Action: Abuse of Process

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Defendants argue that Plaintiff’s first cause of action for abuse of process is

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expressly disallowed by 28 U.S.C. § 2680(h) of the FTCA. (See MTD Mem. 18, ECF No.

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17-1.) Moreover, although Plaintiff alleges that Defendant Laner is “empowered under 49

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U.S.C. 44709 to execute searches and seize evidence for the purposes of actions to suspend

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or revoke . . . certificates, usually in the event of non-compliance with federal aviation

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safety regulations (Title 14 CFR)” (FAC ¶ 15, ECF No. 16), 49 U.S.C. § 44709 “does not

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authorize FAA aviation safety inspectors to execute searches or to seize evidence (or to

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make arrests) for ‘violations of Federal law’” (MTD Mem. 18–19, ECF No. 17-1).

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Consequently, Plaintiff “fail[s] to meet his burden of showing an unequivocal waiver of

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sovereign immunity, particularly with respect to the ‘investigative or law enforcement

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officer’ exception to the FTCA’s bar on abuse of process claims.” (Id. at 20.)

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Plaintiff counters that Defendant Laner’s actions constitute “an ‘Abuse of Process’

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under the FTCA, because the Federal Aviation Administration’s well-established ‘Due

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Process’ before suspending or revoking an Airman’s or Air Operator’s certificate, upon

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which [Plaintiff’s] livelihood depends, was neither invoked nor followed.” (Opp’n 4, ECF

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No. 19.) He argues that Defendant Laner, “in the capacity of Aviation Safety Inspector,

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. . . was empowered to conduct investigations; search aircraft, search premises, or personal

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property; seize evidence; and report the results of those investigations to the FAA’s

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Regional Counsel for enforcement through legal action.” (Id. at 5 (citing FAA Order
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Consequently, “FAA Aviation Safety Inspectors meet the definition of

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2150.3B).)

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‘investigative or law enforcement officer’ under 28 U.S. Code, Section 1346, the Federal

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Tort Claims Act.” (Id. at 6.)

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The Court concludes that it lacks subject-matter jurisdiction over Plaintiff’s first

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cause of action because Plaintiff has not established unequivocally that Defendant Laner

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was an “investigative or law enforcement officer” under 28 U.S.C. § 2680(h).

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mentioned previously, “[f]or the purposes of [Section 2680(h)], ‘investigative or law

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enforcement officer’ means any officer of the United States who is empowered by law to

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execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28

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U.S.C. § 2680(h). “The court is permitted to review allegations of the complaint and

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evidence regarding the job duties and job descriptions of the federal employees in question

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to determine if they are ‘investigative or law enforcement officer[s]’ under section

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2680(h).” Lorsch v. United States, No. CV 14-2202 AJW, 2015 WL 6673464, at *8 (C.D.

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Cal. Oct. 29, 2015) (collecting cases).

As

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Plaintiff summarily alleges that Defendant Laner was “empowered under 49 U.S.C.

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44709 to execute searches and seize evidence for the purposes of actions to suspend or

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revoke [airman’s] certificates, usually in the event of non-compliance with federal aviation

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safety regulations (Title 14 CFR).” (FAC ¶ 15, ECF No. 16.) That provision does

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authorize certain FAA employees to conduct investigations: “The Administrator may issue

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an order amending, modifying, suspending, or revoking . . . any part of a certificate issued

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under this chapter if . . . the Administrator decides after conducting a reinspection,

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reexamination, or other investigation that safety in air commerce of air transportation and

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the public interest require that action.” 49 U.S.C. § 44709(b)(1)(A). That provision does

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not, however, explicitly authorize FAA employees generally—or aviation safety inspectors

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in particular—“to execute searches, to seize evidence, or to make arrests,” as required

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under Section 2680(h).

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In his Opposition, Plaintiff also points to FAA Order 2150.3B. (See, e.g., Opp’n 5–

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6, ECF No. 19; see also Opp’n Ex. C, ECF No. 19 at 9–21.) A marking in the margin—
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whether or not intentional—appears to direct the Court to the following passage:

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Field offices conduct surveillance inspections of persons,
aircraft, manufacturers of aircraft and parts, or operations to
determine compliance with statutory and regulatory
requirements and issues related to qualifications of persons or
aircraft certified or approved by the FAA. Field office
enforcement personnel investigate, coordinate, and report
violations of all statutory and regulatory requirements that are
discovered within the geographical area for their office and for
which they have enforcement responsibility.

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(Opp’n Ex. C, ECF No. 19 at 12.) There is also a lengthy section on the role of FAA
investigative personnel in enforcement investigations:

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FAA investigative personnel’s role in an investigation is to
gather all material, relevant evidence that either proves or
disproves the potential violation that precipitated the
investigation. . . . If the evidence is sufficient to support a
violation, FAA investigative personnel recommend . . . action, as
appropriate, in accordance with the policy and guidance of this
order.

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(Id. at 13 (emphasis in original).) Finally, with respect to constitutional protections for

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inspections or investigations on private property, the order provides that FAA investigative

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personnel are subject to the Fourth Amendment:

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Although administrative inspections and investigations are not
criminal in nature, administrative inspections and investigations
conducted on private property are subject to the constitutional
limitations of the Fourth Amendment . . . . When an owner of
private property refuses consent to an administrative inspection
or investigation, FAA investigative personnel must first obtain a
warrant from judicial authority, unless the [open fields]
exception . . . applies.

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(Id. at 15.) Plaintiff does not make clear to what extent these provisions apply to Defendant

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Laner, but the plain language of FAA Order 2150.3B could plausibly place Defendant

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Laner within the investigative or law enforcement officer exception of Section 2680(h).

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The legal precedents cited by Plaintiff, however, are not persuasive. As Defendants

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note (see, e.g., Reply 5–7 & n.1, ECF No. 20), in Millbrook v. United States, 133 S. Ct.

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1441 (2013), the issue was not whether the Bureau of Prisons employees were investigative

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or law enforcement officers. Indeed, the government in that case conceded as much. Id.

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at 1445 n.3. In this case, by contrast, the question is contested and the law is not definitive:

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no court within this Circuit has determined whether FAA safety inspectors are subject to

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the investigative or law enforcement officer exception under Section 2680(h). The Court

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finds persuasive, however, Defendants’ case Sottile v. United States, 608 F. Supp. 1040

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(D.D.C. 1985), in which the United States District Court for the District of Columbia noted

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in dicta that, “[o]n a preliminary inquiry, the Court finds nothing in the Federal Aviation

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Act, 49 U.S.C. § 1301 et seq., which would support an assertion that FAA investigators

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have the authority to execute searches, seize evidence, or make arrests for federal law

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violations.” Id. at 1042 (citing 49 U.S.C. §§ 1482(b), 1484; Equal Emp’t Opportunity

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Comm’n v. First Nat’l Bank of Jackson, 614 F.2d 1004, 1007–08 (5th Cir. 1980), cert.

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denied, 450 U.S. 917 (1981); United States v. Rubin, 573 F.Supp. 1123, 1124–25 (D. Colo.

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1983)). The Court is also persuaded by Matsko v. United States, 372 F.3d 556 (3d Cir.

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2004), in which the Third Circuit held that “employees of administrative agencies, no

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matter what investigative conduct they are involved in, do not come within the § 2680(h)

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exception.” Id. at 560 (citing First Nat’l Bank of Jackson, 614 F.2d at 1007–08). These

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authorities would tend to suggest that Defendant Laner—as an FAA investigator and

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employee of an administrative agency—does not fall within the Section 2680(h)

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investigative or law enforcement officer exception.

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Because Plaintiff does not cite any binding or persuasive authority to the contrary,

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he has not established an unequivocal waiver of sovereign immunity. “[T]o the extent that

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there is uncertainty about whether Congress intended to encompass [FAA safety

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inspectors] within the ‘law enforcement’ proviso, the uncertainty must be resolved against

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the waiver of sovereign immunity.” Hernandez v. United States, 34 F. Supp. 3d 1168,

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1181 (D. Colo. 2014) (citing Trentadue v. United States, 397 F.3d 840, 852 (10th Cir.
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2005)); see also Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998) (“The plaintiff in a

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lawsuit against the United States must point to an unequivocal waiver of sovereign

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immunity.”) (citing Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)). Accordingly,

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the Court DISMISSES Plaintiff’s first cause of action for lack of subject-matter

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jurisdiction.2

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B.

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Defendants contend that Plaintiff’s second cause of action for negligence per se must

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also be dismissed for lack of subject-matter jurisdiction because “in truth this is a libel

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claim, not negligence” (MTD Mem. 23, ECF No. 17-1), and “the FTCA expressly excludes

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claims for libel and slander from its waiver of the United States’ sovereign immunity” (id.

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at 24 (citing 28 U.S.C. § 2680(h)).)

Second Cause of Action: Negligence Per Se

12

As Defendants note (see Reply 3, 11, ECF No. 20), Plaintiff fails to oppose this

13

argument (see generally Opp’n, ECF No. 19). Under Ninth Circuit precedent, the Court

14
15
16
17
18
19
20
21

2

Even if the Court were to conclude that Defendant Laner fell within the investigative or law enforcement
officer proviso, Plaintiff still would face the discretionary functions exception, which neither of the parties
addresses in their briefing. “The discretionary function exception provides the government with immunity
from suit for ‘[a]ny claim . . . based upon the exercise or performance of the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or employee of the Government, whether
or not the discretion involved be abused.’” Dichter-Mad Family Partners, LLP v. United States, 707 F.
Supp. 2d 1016, 1026 (C.D. Cal. 2010) (quoting 28 U.S.C. § 2680(a)), aff’d, 709 F.3d 749 (9th Cir. 2013).
“[C]ourts have repeatedly held in other contexts that the conduct of regulatory investigations are immune
from FTCA liability unless there are mandatory directives that limit the investigators’ discretion to
determine both the scope and the manner of the investigation.” Id. at 1039 (collecting cases). FAA Order
2150.3B, upon which Plaintiff relies (see Opp’n 5–6, ECF No. 19), illustrates the broad investigative
discretion conferred upon FAA investigative personnel:

22
23
24
25

Under Title 49 U.S.C. § 44709, the Administrator may reinspect at any time
a civil aircraft, aircraft engine, propeller, appliance, air navigation facility,
or air agency, or reexamine any airman holding a certificate issued under
49 U.S.C. § 44703. The Administrator also has broad authority under 49
U.S.C. § 40113 to conduct investigations necessary to carry out his or her
duties and powers under the statute.

26
27
28

(Opp’n Ex. C, ECF No. 19 at 15.) Despite Plaintiff’s conclusory argument that Defendant Laner’s actions
were “not a ‘discretionary’ function” (Opp’n 4, ECF No. 19), it is likely that the discretionary function
exception would provide an alternative basis for dismissal for lack of subject-matter jurisdiction of
Plaintiff’s first cause of action.
12
15-CV-278 JLS (DHB)

1

may therefore dismiss Plaintiff’s negligence per se cause of action as abandoned. See

2

Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (dismissing causes

3

of action as abandoned where plaintiff did not oppose dismissal in her opposition); Shull

4

v. Ocwen Loan Servicing, LLC, No. 13-CV-299 BEN (WVG), 2014 WL 1404877, at *2

5

(S.D. Cal. Apr. 10, 2014) (“Where a party fails to address arguments against a claim raised

6

in a motion to dismiss, the claims are abandoned and dismissal is appropriate.”).

7

Nevertheless, the Court addresses Defendants’ arguments on the merits and concludes that

8

it lacks subject-matter jurisdiction.

9

As noted above, the FTCA expressly excludes from its waiver of sovereign

10

immunity “[a]ny claims arising out of . . . abuse of process[ and] libel . . . .” 28 U.S.C.

11

§ 2680(h). The “investigative or law enforcement officer” exception does not apply to libel

12

claims. Id. “Libel is defined under California law as ‘a false and unprivileged publication

13

by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes

14

any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or

15

avoided, or which has a tendency [t]o injure him in his occupation.’” Cort v. St. Paul Fire

16

& Marine Ins. Cos., 311 F.3d 979, 985 (9th Cir. 2002) (quoting Cal. Civ. Code § 45). “This

17

circuit looks beyond the labels used to determine whether a proposed claim is barred.”

18

Thomas-Lazear v. Fed. Bureau of Investigation, 851 F.2d 1202, 1207 (9th Cir. 1988)

19

(citing Alexander v. United States, 787 F.2d 1349, 1350–51 (9th Cir. 1986); Leaf v. United

20

States, 661 F.2d 740, 742 (9th Cir .1981), cert. denied, 456 U.S. 960 (1982)).

21
22
23

As Defendant notes (see MTD Mem. 25, ECF No. 17-1), Plaintiff himself originally
characterized his claim as one for libel:

27

On February 15, 2012, FAA Flight Standards Inspector, Wayne
Laner, without giving Notice, or Opportunity to be Heard, caused
written libelous statements to be entered into Mr. Martin’s “file”
in the FAA’s National Program Tracking and Reporting System.
False and Libelous statements in that record caused Martin to
lose current employment, and to lose opportunity for future
employment, as air carrier pilot.

28

(See FAC Ex. C, ECF No. 16 at 33.) Although Plaintiff now labels this cause of action

24
25
26

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1

negligence per se (see FAC ¶¶ 65–69, ECF No. 16), he still alleges the same basic facts:

2

On February 15, 2012, contravening the Fifth Amendment
requirement for Due Process Of Law, and the requirement of 49
U.S.C. Section 44709(c) for Notice and an Opportunity to be
heard; [Defendant] LANER inserted the aforementioned letter in
[Plaintiff]’s FAA PTRS file, thereby assuring that in the event
any aviation employer inquired of [Plaintiff]’s background, that
record would be retrieved, and [Plaintiff] would enjoy no chance
of employment.

3
4
5
6
7
8

(FAC ¶ 67, ECF No. 16 (emphasis in original).) Plaintiff now adds that “[i]f the FAA had

9

not negligently failed to prevent the insertion, or to remove the offensive material from

10

[Plaintiff]’s PTRS file, [Plaintiff]’s loss of employability, and consequent damages as

11

alleged[,] would not have occurred.” (Id. at ¶ 68.) However, “[Defendant Laner]’s actions

12

that constitute a claim for slander are essential to [Plaintiff]’s claim for negligen[ce per

13

se].” Thomas-Lazear, 851 F.2d at 1207. Because the FTCA does not waive sovereign

14

immunity for libel claims, see 28 U.S.C. § 2680(h), the Court DISMISSES Plaintiff’s

15

second cause of action for negligence per se for lack of subject-matter jurisdiction.

16

III.

Failure to State a Claim Under Rule 12(b)(6)

17

Defendants additionally argue that Plaintiff’s abuse of process cause of action must

18

be dismissed for failure to state a claim under Rule 12(b)(6). (See MTD Mem. 21–22, ECF

19

No. 17-1.) Specifically, Defendants note that Plaintiff’s “FAC is utterly bereft of any

20

allegation that there was a judicial proceeding involved,” as is required for an abuse of

21

process claim under California law. (Id. at 22.) Defendants additionally contend that, to

22

the extent Plaintiff’s first cause of action is a constitutional due process claim arising under

23

49 U.S.C. § 44709(c), “this U.S. Code section . . . is wholly inapplicable to his case”

24

because Plaintiff fails to “allege that the FAA amended, modified, suspended, or revoked

25

his airman’s certificate, or even that it instituted administrative proceedings to do so – so,

26

by its terms, this statute is not even triggered.” (MTD Mem. 26–27, ECF No. 17-1.)

27

Again, Plaintiff fails to oppose these arguments (see Reply 3, 4, 11, ECF No. 20; see

28

also Opp’n, ECF No. 19), entitling the Court to dismiss Plaintiff’s abuse of process cause
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15-CV-278 JLS (DHB)

1

of action as abandoned. See, e.g., Jenkins, 398 F.3d at 1095 n.4. The Court will, however,

2

address Plaintiff’s allegations on the merits.

3

“The FTCA specifies that the liability of the United States is to be determined ‘in

4

accordance with the law of the place where the [allegedly tortious] act or omission

5

occurred.’” Rhoden v. United States, 55 F.3d 428, 430 (9th Cir. 1995) (per curiam)

6

(quoting 28 U.S.C. § 1346(b)) (alteration in original). California law therefore governs the

7

United States’ liability in Plaintiff’s FTCA claim. See Gasho v. United States, 39 F.3d

8

1420, 1427 (9th Cir. 1994) (“Liability is determined by the tort law of the state where the

9

claim arose.”). “[U]nder well-established California law, the tort of abuse of process

10

‘requires misuse of a judicial process.’” Estate of Tucker ex rel. Tucker v. Interscope

11

Records, Inc., 515 F.3d 1019, 1037 (9th Cir. 2008) (quoting Stolz v. Wong Commc’ns Ltd.

12

P’ship, 25 Cal. App. 4th 1811, 1822 (1994)) (emphasis in original). “Misuse of an

13

administrative proceeding—even one that is quasi-judicial—does not support a claim for

14

abuse of process.” Id. (citing Stolz, 25 Cal. App. 4th at 1823–25).

15

Plaintiff nowhere alleges misuse of a judicial process in his FAC. (See generally

16

FAC, ECF No. 16.) Instead, Plaintiff explains that he presented an administrative claim to

17

the FAA, which was denied. (Id. at ¶ 7.) While Plaintiff alleges that “[a]t least two of

18

Inspector LANER’s immediate FAA supervisors . . . had a Fifth Amendment duty, and a

19

statutory duty under 49 U.S.C. 44709(c)[,] . . . to provide [Plaintiff] an opportunity to be

20

heard before an independent Administrative or Judicial body before depriving him of his

21

livelihood” (id. at ¶ 56 (emphases in original)), the statute cited contemplates an

22

administrative process, see 49 U.S.C. § 44709(c) (“Before acting under subsection (b) of

23

this section, the Administrator shall advise the holder of the certificate of the charges or

24

other reasons on which the Administrator relies for the proposed action. Except in an

25

emergency, the Administrator shall provide the holder an opportunity to answer the charges

26

and be heard why the certificate should not be amended, modified, suspended, or

27

revoked.”). Because Plaintiff has failed to allege a misuse of a judicial process, he has

28

failed to state a claim for abuse of process.
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1

Defendants additionally argue that 49 U.S.C. § 44709(c) is not triggered because

2

there was no “order amending, modifying, suspending, or revoking” Plaintiff’s airman’s

3

certificate. (MTD Mem. 26–27, ECF No. 17-1.) Indeed, as of February 2014, Plaintiff

4

still held “an Airline Transport Pilot Certificate, issued by the [FAA].” (Decl. of Ronald

5

Lewis Martin (Martin Decl.) ¶ 1, FAC Ex. A, ECF No. 16 at 16.) Accordingly, the Court

6

concludes that 49 U.S.C. § 44709(c) is inapplicable and—to the extent Plaintiff relies upon

7

that statute as the basis for a constitutional due process claim—Plaintiff’s first cause of

8

action must be dismissed.
In light of the foregoing, the Court DISMISSES Plaintiff’s first cause of action for

9
10

failure to state a claim.

11

IV.

Dismissal With Prejudice

12

Finally, Defendants argue that Plaintiff’s FAC should be dismissed with prejudice

13

“because Martin cannot state a viable cause of action under these facts, and because he has

14

now had three tries (counting his administrative claim with the FAA).” (MTD Mem. 9,

15

ECF No. 17-1.) Plaintiff does not specifically oppose this argument. (See generally Opp’n,

16

ECF No. 19.)

17

Generally, a dismissal for lack of subject-matter jurisdiction should be without

18

prejudice because it is not an adjudication on the merits and a plaintiff should be afforded

19

the opportunity to reassert his claims in a competent court. See Siler v. Dillingham Ship

20

Repair, 288 Fed. App’x 400, 401 (9th Cir. 2008) (citing Freeman v. Oak Unified Sch. Dist.,

21

179 F.3d 846, 847 (9th Cir. 1999)); see also Kendall v. Dep’t of Veterans Affairs, 360 Fed.

22

App’x 902, 903 (9th Cir. 2009) (citing Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034,

23

1036 (9th Cir. 2004)). Similarly, “[i]n dismissing for failure to state a claim, a district court

24

should grant leave to amend even if no request to amend the pleading was made, unless it

25

determines that the pleading could not possibly be cured by the allegation of other facts.”

26

Ebner v. Fresh, Inc., 818 F.3d 799, 803 (9th Cir. 2016) (quoting Doe v. United States, 58

27

F.3d 494, 497 (9th Cir. 1995)).

28

///
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15-CV-278 JLS (DHB)

1

Because Plaintiff conceded that “the United States should be the only defendant in

2

this matter” (see Opp’n 2, ECF No. 19), the Court finds it appropriate to dismiss with

3

prejudice Defendant Laner from this action. With respect to Plaintiff’s first cause of action,

4

dismissal with prejudice is inappropriate under Rule 12(b)(1), because Plaintiff may be

5

able to demonstrate that Defendant Laner falls within the investigative or law enforcement

6

officer exception to Section 2680(h). The Court concludes, however, that amendment

7

under Rule 12(b)(6) would be futile. Plaintiff’s abuse of process claim cannot possibly be

8

cured by the allegation of other facts because it is clear that there is no misuse of a judicial

9

process, only an administrative one. See, e.g., Tucker, 515 F.3d at 1037. Regarding

10

Plaintiff’s second cause of action for negligence per se, “the bar of sovereign immunity is

11

absolute: no other court has the power to hear the case, nor can [Plaintiff] redraft [his]

12

claims to avoid the exceptions to the FTCA.” See Frigard v. United States, 862 F.2d 201,

13

204 (9th Cir. 1988). Consequently, the Court finds it appropriate to DISMISS WITH

14

PREJUDICE Plaintiff’s FAC.

15

CONCLUSION

16

For the reasons stated above, the Court GRANTS Defendants’ MTD (ECF No. 17)

17

and DISMISSES WITH PREJUDICE Plaintiff’s FAC (ECF No. 16). This Order

18

concludes the litigation in this matter. The Clerk of the Court shall close the file.

19

IT IS SO ORDERED.

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21

Dated: August 31, 2016

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15-CV-278 JLS (DHB)