Robinson v. Huerta et al

Filing 6

MEMORANDUM AND ORDER regarding Complaint 1 filed by Eric Robinson. Petitioner's request for a writ of mandamus fails to state a claim upon which relief may be granted. On the court's own motion, Plaintiff shall have 30 days from the da te of this Memorandum and Order to file an amended petition in which he alleges that "he has exhausted all other avenues of relief" and shows that the FAA "owes him a clear nondiscretionary duty" to investigate the circumstances under which he was terminated from his employment. Failure to do so will result in dismissal of this matter without further notice. ***Pro Se Case Management set for 10/24/2013: Review amended petition. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC ROBINSON,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL P. HUERTA,
)
Administrator, Federal Aviation
)
Administration, LACEY N. JONES, )
Manager, Special Investigations
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Branch, Drug Abatement Division,
)
Federal Aviation Administration,
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BRENT HART, Program Analyst,
)
Office of Audit and Evaluation,
)
Federal Aviation Administration,
)
MARC L. WARREN, (Acting) Chief )
Counsel, Federal Aviation
)
Administration, and A. LESTER
)
HAIZLIP, Regional Counsel, Central )
Region, Federal Aviation
)
Administration,
)
)
Defendants.
)

4:13CV3130

MEMORANDUM
AND ORDER

This matter is before the court on the petition of Eric Robinson for a writ of
mandamus to compel the Federal Aviation Administration (“FAA”) to investigate the
circumstances under which Petitioner was terminated from Duncan Aviation. As
Respondents, Plaintiff has named the administrator of the FAA and other FAA
employees.

I.

SUMMARY OF PETITION

Petitioner alleges that he was employed by Duncan Aviation. On December
13, 2009, Petitioner received a telephone call from Company Care, a company that
conducts the analysis of drug and alcohol tests submitted by Duncan Aviation,
informing Petitioner that he had tested positive for methamphetamine. (Filing No.
1 at CM/ECF p. 6.) As a result, Duncan Aviation placed Petitioner “on paid
suspension” pending further testing of the sample. (Id. at CM/ECF p. 7.) After
several weeks, Petitioner “assumed” his employment had been terminated by Duncan
Aviation. (Id.)
At some point following his termination, Petitioner contacted the Department
of Transportation to inform them “of what was going on.” (Id. at CM/ECF p. 8.) In
January and March 2013, the FAA informed Petitioner that the drug testing Petitioner
underwent was outside its scope of authority because it was conducted under Duncan
Aviation’s company testing program, not the Department of Transportation/FAAmandated testing program. (Id. at CM/ECF pp. 9-10.) Petitioner alleges that Duncan
Aviation does not have a company testing policy. (Id.) He also alleges that “[t]he
FAA did nothing more than place a few phone calls for its investigation.” (Id. at
CM/ECF p. 9.) He asks this court to issue a writ of mandamus compelling the FAA
“to do a FULL and THOROUGH review of this incident.” (Id. at CM/ECF p. 10.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B).
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Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III.

DISCUSSION OF CLAIMS

Under 28 U.S.C. § 1361, district courts have “original jurisdiction of any action
in the nature of mandamus to compel an officer or employee of the United States or
any agency thereof to perform a duty owed to the plaintiff.” The writ of mandamus
is an extraordinary remedy, and therefore must be issued only in extraordinary
circumstances. “In order to insure that the writ will issue only in extraordinary
circumstances [the United States Supreme Court] has required that a party seeking
issuance have no other adequate means to attain the relief he desires, and that he
satisfy the burden of showing that his right to issuance of the writ is clear and
indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980)
(citations and internal quotations omitted). See also Taylor v. Barnhart, 399 F.3d
891, 894 (8th Cir. 2005) (“The writ of mandamus is intended to provide a remedy for
a plaintiff only if he has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.” (quoting Hatcher v. Heckler, 772
F.2d 427, 432 (8th Cir. 1985))).

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In this case, Petitioner asks this court to issue a writ of mandamus compelling
the FAA to investigate the circumstances under which he was terminated from his
employment. However, he has shown neither exhaustion of alternative remedies nor
a clear right to the relief he seeks. On the court’s own motion, Petitioner will be
given 30 days from the date of this Memorandum and order to file an amended
petition in which he alleges that “he has exhausted all other avenues of relief” and
shows that the FAA “owes him a clear nondiscretionary duty” to investigate the
circumstances under which he was terminated from his employment. Failure to do
so will result in dismissal of this matter without further notice.
IT IS THEREFORE ORDERED that:
1.
Petitioner’s request for a writ of mandamus fails to state a claim upon
which relief may be granted. On the court’s own motion, Plaintiff shall have 30 days
from the date of this Memorandum and Order to file an amended petition in which he
alleges that “he has exhausted all other avenues of relief” and shows that the FAA
“owes him a clear nondiscretionary duty” to investigate the circumstances under
which he was terminated from his employment. Failure to do so will result in
dismissal of this matter without further notice.
2.
The Clerk of the court is directed to set a pro se case management
deadline using the following text: October 24, 2013: Review amended petition.

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DATED this 24th day of September, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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