Smith v. Huerta

Filing 17

ORDER granting 13 Motion to Dismiss. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY DEAN SMITH,
Plaintiff,
Case Number: 13-14172
Honorable Victoria A. Roberts

v.
MICHAEL P. HUERTA, Administrator,
Federal Aviation Administration,
Defendant.
________________________________/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (DOC. 13)
I.

INTRODUCTION
Gregory Dean Smith (“Plaintiff”) brought this action to appeal an order of the

Federal Aviation Administration (“FAA” or “Defendant”). Before the Court is Defendant’s
Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction. This matter is
fully briefed; the Court waives oral argument under L.R. 7.1(e)(2).
Because Plaintiff failed to exhaust his administrative remedies, the Court does
not have jurisdiction to consider this action.
Defendant’s Motion to Dismiss is GRANTED; Plaintiff’s claims are DISMISSED.
II.

BACKGROUND
On April 29, 2013, the FAA served Plaintiff – a pilot for over 40 years – with an

emergency order revoking his Airline Transport Pilot Certificate, Flight Instructor
Certificate, and First Class Airman Medical Certificate (“Certificates”); the revocation
order was based on Plaintiff’s alleged refusal to submit to a required drug test. Under
the Pilot’s Bill of Rights, Pub. L. 112-153, 126 Stat 1159 (2012), Plaintiff had a right to

appeal the emergency order to an Administrative Law Judge (“ALJ”) of the National
Transportation Safety Board (“NTSB”) within 10 days of the date he was served, see 49
C.F.R. § 821.53(a); the emergency order clearly provided Plaintiff notice of this right.
The deadline for Plaintiff to file an appeal was May 9, 2013. Plaintiff did not timely
appeal the emergency order.
On June 5, 2013, twenty-seven days after the deadline to appeal passed, Plaintiff
– through counsel – filed with the NTSB: (1) a “Motion for Leave to File a Late Appeal, a
Late Answer to the Administrator’s Complaint and Request for Expedited Hearing and
Brief in Support”; (2) an “Appeal and Answer to Complaint”; and (3) “Affirmative
Defenses.” Plaintiff’s motion for leave to file a late appeal, and his other filings, were
assigned to NTSB Chief ALJ Alfonso J. Montano. Rather than attempting to show that
good cause existed for his failure to file a timely appeal, Plaintiff attempted to argue the
merits of the FCC’s order revoking his Certificates.
On June 14, 2013, Chief ALJ Montano entered an order: (1) finding that Plaintiff
failed to establish the requisite good cause to permit an untimely appeal; (2) denying
Plaintiff’s motion for leave to file a late appeal; and (3) terminating the proceedings.
Chief ALJ Montano did not consider the merits of the FCC’s decision to revoke Plaintiff’s
Certificates.
On June 17, 2013, Plaintiff appealed Chief ALJ Montano’s order to the full Board
(NTSB); again, Plaintiff attempted to argue the merits of the revocation – without
establishing good cause for the late appeal. On August 1, 2013, the NTSB issued an
opinion and order denying Plaintiff’s appeal and affirming the ALJ’s order; the NTSB
said that it “strictly adheres to the standard of timeliness set out in [its] Rules, only
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excusing procedural defects upon a showing of good cause.” Like the ALJ, the full
Board only addressed whether Plaintiff should be allowed to file a late appeal; it did not
address the merits of the FCC’s decision to revoke Plaintiff’s Certificates.
On September 30, 2013, Plaintiff filed this action; he asks the Court to review the
decision of the FAA to revoke his Certificates; he also asks the Court to review the
NTSB’s denial of his motion for leave to file a late appeal. On January 21, 2014,
Defendant filed a Motion to Dismiss for lack of jurisdiction under Fed. R. Civ. P.
12(b)(1).
III.

DISCUSSION
“Federal Courts are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute, ... which is not to be expanded by judicial
decree.” Kokkonen v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994)
(citations omitted). “Congress has long directed parties to exhaust administrative
remedies before seeking relief from the federal courts, and when it does so by statute,
the requirement cannot be excused.” Harkness v. United States, 727 F.3d 465, 469
(6th Cir. 2013) (citing McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992)). Therefore,
when exhaustion is required under a statute, the Court does not have jurisdiction until
exhaustion has occurred. See id. “[W]here Congress has not clearly required
exhaustion, sound judicial discretion governs.” McCarthy, 503 U.S. at 144 (citation
omitted).
Plaintiff challenges: (1) the FAA’s emergency order revoking his Certificates, and
(2) the NTSB’s opinion and order denying his motion to file a late appeal; he says the
Pilot’s Bill of Rights provides the Court jurisdiction to review both of these matters.
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Defendant says the Court lacks jurisdiction to consider either of the matters.
First, Defendant says that because Plaintiff failed to exhaust his administrative
remedies, the jurisdictional predicate for this Court’s review of a revocation order – i.e.,
a decision by the NTSB upholding the FAA’s emergency order of revocation – is not
present; therefore, Defendant says, the Court lacks jurisdiction to consider the merits of
the FAA’s revocation order. Additionally, Defendant says the Court does not have
jurisdiction to review the NTSB’s order denying Plaintiff’s motion for leave to file a late
appeal, because the Pilot’s Bill of Rights provides that only a select few types of orders
are subject to judicial review, and a motion to file a late appeal is not one of them.
In pertinent part, the Pilot’s Bill of Rights provides that:
Upon a decision by the National Transportation Safety Board
upholding an order or a final decision by the Administrator [of
the FAA] ... imposing ... an emergency order of revocation
under [49 U.S.C. §§ 44709(d) and (e)], an individual
substantially affected by an order of the Board may ... file an
appeal in the United States district court in which the
individual resides or in which the action in question
occurred....
126 Stat. at 1161, § 2(d)(1). The Court must determine separately whether the statute
provides it jurisdiction to consider either of Plaintiff’s challenges.
Based on the plain language of the Pilot’s Bill of Rights, it is clear that the Court
does not have jurisdiction to review the merits of the FAA’s revocation order. Although
the FAA did “impos[e] ... an emergency order of revocation,” the NTSB never
considered the order of revocation; instead, the NTSB – both the ALJ and full Board –
only considered whether to allow Plaintiff’s motion for leave to file a late appeal, which
was never a matter before the FAA. Thus, the decision by the NTSB is not one
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“upholding an order or a final decision by the Administrator” that would allow Plaintiff to
file an appeal in this Court. See id.
In Dexter v. Huerta, 2013 WL 5355748 (M.D. N.C. Sept. 24, 2013), the court held
that it did not have jurisdiction under the Pilot’s Bill of Rights to consider an appeal of an
NTSB ALJ’s decision where the ALJ’s decision was not appealed to the full Board. The
court found that “the Pilot’s Bill of Rights requires the exhaustion of administrative
remedies ... prior to judicial review of a revocation order”; specifically, the court found
that “review by the full Board [w]as a predicate to judicial review.” Id., 2013 WL
5355748, at *1, 3. In so finding, the court stated that:
If Plaintiffs' interpretation were adopted, the statute would
allow an appeal directly from an order by an ALJ, and would
cut the Board of the NTSB out of the appeals process
entirely…. Plaintiffs' approach would undermine the authority
of the NTSB and would deprive the courts of the technical
expertise that the NTSB would apply to an appeal of an
ALJ's decision. This Court does not believe that Plaintiffs'
interpretation is a reasonable reading of the statutory
language, nor would Congress have intended to remove the
long-standing exhaustion requirement with such detrimental
effects to the authority of the NTSB and to judicial efficiency.
Id. at *3.
Similarly, if Plaintiff was correct that the Court has jurisdiction to consider his
challenge of the merits of the FAA’s revocation order – where the NTSB (both the ALJ
and full Board) never considered the matter – the Pilot’s Bill of Rights would allow direct
appeal of an FAA order, which would cut the NTSB entirely out of the appeal process
and greatly diminish its relevance; individuals could circumvent review by the NTSB by
filing a late appeal without good cause. That interpretation is inconsistent with statutory
language and the intent of Congress.
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Accordingly, because Plaintiff failed to exhaust his administrative remedies –
such that the NTSB never reviewed nor upheld any order of the FAA – the Court does
not have jurisdiction to consider the merits of the revocation order.
In addition, the Court does not have jurisdiction to consider the NTSB’s decision
denying Plaintiff’s motion for leave to file a late appeal. Under the plain terms of the
Pilot’s Bill of Rights, a person may only appeal an NTSB decision “upholding an order or
a final decision by the Administrator denying an airman certificate ... or imposing a
punitive civil action or an emergency order of revocation....” 126 Stat. at 1161, § 2(d)(1)
(emphasis added). A decision denying a motion to file a late appeal is not an order the
statute designates as one subject to judicial review; thus, the Court lacks jurisdiction to
review the NTSB’s denial of Plaintiff’s motion to file a late appeal.
IV.

CONCLUSION
Because Plaintiff failed to exhaust his administrative remedies, this action must

be dismissed for lack of jurisdiction.
Defendant FAA’s Motion to Dismiss is GRANTED. Plaintiff’s action is
DISMISSED.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: April 10, 2014

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The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
April 10, 2014.
S/Carol A. Pinegar
Deputy Clerk

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