DARBY v. US DEPARTMENT OF TRANSPORTATION et al

Filing 4

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 03/28/2014; that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ARTHUR DONALD DARBY, JR.
Plaintiff,
v.
U.S. DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:14CV245

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2).
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of this action, under
28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis [‘IFP’] statute, first enacted
in 1892 [and now codified at 28 U.S.C. § 1915], is intended to
guarantee that no citizen shall be denied access to the courts
‘solely because his poverty makes it impossible for him to pay or
secure the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d

951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 342 (1948)).

“Dispensing with

filing fees, however, [is] not without its problems.

Parties

proceeding under the statute d[o] not face the same financial

constraints as ordinary litigants.

In particular, litigants suing

[IFP] d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).
To address this concern, the IFP statute provides, in relevant
part, that “the court shall dismiss the case at any time if the
court determines that – . . . (B) the action or appeal – . . .
fails to state a claim on which relief may be granted . . . .”
U.S.C. § 1915(e)(2).

28

A complaint falls short when it does not

“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal,

556

U.S.

662,

678

(2009)

(emphasis

Ashcroft v.

added)

(internal

citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

This standard “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”

Id.

In other

words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal

2

conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id.1
DISCUSSION
Plaintiff’s
Transportation,

Complaint
the

Federal

names

the

Aviation

U.S.

Department

Administration

of

(“FAA”),

Courtney D. Scott, and Glenn D. Subin as Defendants. (Docket Entry
2 at 1-2.)

It appears to allege that the FAA improperly denied

Plaintiff’s application for an airman medical certificate for
failing to meet the required medical standards.
Docket Entry 2-1 at 1-2.)

(See id. at 1-4;

The Complaint states that the FAA

“[d]eprived from [Plaintiff] [an] [e]ducation to enlist[] [in a]
Commercial Training Pilot Course” and that Plaintiff “[t]ried [his]
[b]est [p]erformance in the United States of America - Color
Blind.”

(Docket Entry 2 at 3-4.)

1

It also refers to two attached

Although “[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted
by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
citations and quotation marks omitted), the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine
Twombly’s requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted) (dismissing pro se
complaint); accord Atherton v. District of Columbia Office of
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint
. . . ‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than
the mere possibility of misconduct.’” (quoting Erickson, 551 U.S.
at 94, and Iqbal, 556 U.S. at 679, respectively)).
3

letters from Defendant Scott, Manager of the Aerospace Medical
Certification Division within the FAA. (See id. at 2; Docket Entry
2-1 at 1-2.)

The first letter constitutes a denial of Plaintiff’s

application for an airman medical certificate due to his “history
of

bipolar

disorder

and

(Docket Entry 2-1 at 1.)

use

of

the

medication

Divaloproex.”

The second letter reports the rejection

of Plaintiff’s request for reconsideration as to the airman medical
certificate.

(Id. at 2.)

Based on the foregoing allegations,

Plaintiff seeks “losed [sic] wages and education training from [the
FAA].”

(Docket Entry 2 at 4.)

“The

[Federal

‘physically

able

Aviation]

to

perform

Act
the

requires

duties’

of

that

pilots

be

their

position.”

Bullwinkel v. FAA, 23 F.3d 167, 169 (7th Cir. 1994) (quoting 49
U.S.C. § 44703(a)).

“Regulations promulgated pursuant to the

[Federal Aviation] Act compel prospective pilots to secure a
. . . medical certificate in order to obtain a license.”

Id.

The

“[m]ental standards for a first-class airman medical certificate
[require] [n]o established medical history or clinical diagnosis of
. . . . [a] bipolar disorder.”

14 C.F.R. § 67.107(a)(3); see

also 14 C.F.R. §§ 67.207(a)(3), 67.307(a)(3) (indicating same
standard

applies

certificates).

for

second-

and

third-class

airman

medical

Plaintiff’s Complaint does not make clear whether

he seeks to challenge the application of the FAA’s regulation as
applied to him (i.e., Plaintiff asserts he does not have a history

4

of bipolar disease) or the regulation itself as some form of
disability discrimination.

(See Docket Entry 2 at 1-4.)

Although the Complaint does not identify a cause of action
(see id.), the Civil Cover Sheet indicates Plaintiff’s intent to
bring a claim under the Americans with Disabilities Act (“ADA”)
(Docket Entry 3).

However, Plaintiff’s Complaint fails to state

any such claim “because none of the five sections of the ADA apply
to the Executive Branch of the [Federal] Government, and because
none of the sections are applicable [to the FAA’s pilot licensing
regulations].”

Wilks v. FAA, No. C06-940P, 2007 WL 1687765, at *6

(W.D. Wash. June 8, 2007) (unpublished); see also Henrickson v.
Potter, 327 F.3d 444, 447 (5th Cir. 2003) (“[T]he entire federal
government is excluded from the coverage of the ADA.”).
Plaintiff’s claim similarly fails under the Rehabilitation
Act, which addresses, inter alia, disability discrimination in
federal employment and federally funded programs. See generally 29
U.S.C. § 794.

Under the Rehabilitation Act, “a private cause of

action may exist in favor of handicapped persons . . . against the
United States when sued in its capacity as an employer[;] . . .
however, . . . [there exists no such] private cause of action
against

the

regulator.”
Accordingly,

United

States

Clark
to

the

v.

government

Skinner,
extent

937

in
F.2d

Plaintiff’s

5

its

capacity

123,

125

Complaint

as

a

(1991).
directly

challenges an FAA regulation, it fails to state a claim under the
Rehabilitation Act.
Nor can Plaintiff obtain judicial review of his denial under
the Federal Aviation Act, because his Complaint does not allege
that he has exhausted administrative remedies.
2 at 1-4.)

(See Docket Entry

Specifically, Plaintiff must appeal his denial to the

National Transportation Safety Board (“NTSB”) to secure judicial
review.

See 49 U.S.C. § 44703(d) (citing 49 U.S.C. § 46110).

Moreover, judicial review of a denial by the NTSB occurs in the
United States Circuit Courts of Appeals.

49 U.S.C. § 46110(a).

As

a result, even if Plaintiff had properly exhausted administrative
remedies, this Court would not have subject-matter jurisdiction to
hear a further challenge.

Ligon v. LaHood, 614 F.3d 150, 153-54

(5th Cir. 2010) (“[D]istrict courts lack jurisdiction not only over
direct challenges to FAA orders, but also over damages claims that
are ‘inescapably intertwined with a review of the procedures and
merits surrounding an FAA order.’” (quoting Zephyr Aviation, L.L.C.
v. Dailey, 247 F.3d 565, 572 (5th Cir. 2001))).2

2

Under limited circumstances, district courts may exercise
subject-matter jurisdiction over constitutional claims for damages
against individual FAA officers. See, e.g., Latif v. Holder, 686
F.3d 1122, 1128 (9th Cir. 2012) (“In several prior cases, we
allowed broad constitutional claims for damages against the FAA to
proceed in the district court because, under § 46110, we lack
jurisdiction to grant damages.”); Zephyr Aviation, 247 F.3d at 573
(“[T]he district court erred in concluding that it did not have
subject matter jurisdiction over [the plaintiff’s] Bivens action
[against individual FAA officers].”).
However, where a claim
brought pursuant to Bivens v. Six Unknown Named Agents of Federal
6

CONCLUSION
Plaintiff’s Complaint fails to state a claim.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 28, 2014

Bureau of Narcotics, 403 U.S. 388 (1971), directly attacks an FAA
regulation or “[is] inescapably intertwined with a review of the
procedures and merits surrounding [it,] . . . . [the] suit for
damages constitutes an impermissible collateral challenge to the
agency [regulation], and the district court lacks subject matter
jurisdiction,” Green v. Brantley, 981 F.2d 514, 521 (11th Cir.
1993). Thus, to the extent the Complaint alleges a Bivens action
against Defendants Scott and Subin, such a claim fails as
“inescapably
intertwined,”
id.,
with
the FAA
regulation.
Furthermore, the Complaint contains no factual allegations to
support any individual liability on the part of these Defendants.
(See Docket Entry 2 at 1-4.)
7