Kornitzky Group LLC v. Federal Aviation Administration et al
Filing
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Memorandum Opinion and Order...Deft's motion to dismiss granted; all claims asserted by pltf against FAA are dismissed. (Ordered by Senior Judge John McBryde on 10/9/2018) (wrb)
.. s
NORTHER!"{l>ISTRICT OF TEXAS
tILED
IN THE UNITED STATES DISTRICT OURTr-~-=-~~~~--.
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
OCT - 9 2018
KORNITZKY GROUP LLC d/b/a
AEROBEARINGS, LLC,
Plaintiff,
§
§
C1fyRK, U.S. DISTRICT COURT
Deputy
§
§
§
VS.
§
§
FEDERAL AVIATION
ADMINISTRATION, ET AL.,
§
NO. 4 : 18 - CV- 4 9 2 -A
··
§
§
Defendants.
§
MEMORANDUM OPINION
and
ORDER
Before the court for consideration is the motion of
defendants, Federal Aviation Administration, The United States
Department of Transportation, Daniel K. Elwell, Acting
Administrator of the FAA, and Elaine Chao, Secretary of the
United States Department of Transportation (collectively "FAA" 1 )
,
to dismiss the claims of plaintiff, Kornitzky Group LLC d/b/a
AeroBearings, LLC, against them in the above-captioned action.
Having considered the motion, plaintiff's response thereto, the
applicable legal authorities, and the entire record, the court
finds that the motion should be granted and that plaintiff's
claims against FAA should be dismissed.
'All parties treat Federal Aviation Administration ("FAA") as the defendant who took the action
of which plaintiff complains; and, for all practical purposes, all parties treat FAA as the sole defendant.
Following the lead of the parties, the court does the same in this memorandum opinion and order.
'
I.
Plaintiff's Allegations
Plaintiff initiated the above-captioned action on June 15,
2018, by filing a document titled "Mandamus Action." On July 12,
2018, plaintiff amended its pleading by filing a document titled
"Plaintiff's First Amended Mandamus Action"
Complaint").
pleading.
(the "Mandamus
The Mandamus Complaint remains plaintiff's live
Plaintiff alleged that:
It is a business that specializes in repairing jet engine
bearings.
Plaintiff was founded in 2011, when it obtained
certification from FAA to do its work.
It is required to have an
FAA certification in order to do its work of repairing aircraft
bearings.
Since plaintiff's inception until approximately 2016,
FAA had conducted random and scheduled inspections of plaintiff,
and each time it did, FAA determined that plaintiff was properly
following the Mil-spec and FAA regulations.
Plaintiff is not
aware of any service failures or process failures related to its
workmanship.
As a result of a conspiracy that began in July 2016 between
FAA and various rogue FAA agents, action was taken to ruin the
business of plaintiff.
Included in that activity was drastic and
uncommon action of FAA to issue an Emergency Order of Revocation
on March 1, 2018, against plaintiff that had the effect of
2
shutting down all plaintiff's operations.
Also, on March 6,
2018, FAA issued a press release that contained several false and
misleading statements, and had several material factual omissions
necessary to give the public an accurate account of plaintiff and
FAA's investigation.
Plaintiff has notified FAA of its false
statements and omissions in the press release, but FAA has
refused to correct the press release or issue a follow-up press
release.
FAA has failed to issue a new press release that provides
information concerning plaintiff's emergency hearing in which an
Administrative Law Judge overruled FAA's emergency revocation.
The Administrative Law Judge's decision was overturned by the
National Transportation Board, from which ruling plaintiff has
filed an appeal with the United States Court of Appeals for the
District of Columbia Circuit.
The FAA press release violated regulations governing FAA's
obligations relative to the accuracy and fairness of its press
releases.
Section 9 of FAA Order 2150.3B provides a clear duty
obligating FAA to provide the public with accurate, reliable
information about its enforcement actions.
Plaintiff has
attempted to resolve this matter without involving the court, but
has been wholly unsuccessful.
"There is no other agency that is
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able to grant the relief Plaintiff is seeking.•
~
Doc. 10 at 8,
23. 2
Plaintiff seeks mandamus relief under 28 U.S.C.
§
1361 in
the form of "an Order requiring the FAA issue an accurate press
release that does not omit material information to give the
public a complete understanding of the FAA's contentions.•
~
at 8,
Id.
24. This order is sought pursuant to FAA Order 2150.3B, a
part of the regulatory guidance of FAA.
II.
Grounds of the Motion
The three reasons given by FAA why the motion to dismiss
should be granted were summed up in the motion as follows:
First, AeroBearings does not identify any duty
owed to AeroBearings that arises from a statute or the
United States Constitution. See Giddings v. Chandler,
979 F.2d 1104, 1108 (5th Cir. 1992). Instead,
AeroBearings alleges that the wording of the press
release did not provide the public with accurate
information. That purported duty to the public--which
AeroBearings fashions from FAA guidance--cannot form
the predicate for mandamus relief.
Second, AeroBearings cannot show a clear right to
relief because "mandamus is not available to review
discretionary acts of agency officials." Green v.
Heckler, 742 F.2d 237, 241 (5th Cir. 1984). Since the
issuance of a press release is undoubtedly a
discretionary act, AeroBearings cannot invoke mandamus
jurisdiction.
2
The "Doc._" references are to the numbers assigned to the referenced items on the docket in
this Case No. 4:18-CV-492-A.
4
Third, AeroBearings fails to show that it has no
other remedies available. AeroBearings does not attempt
to explain why administrative or judicial relief are
foreclosed, and it even admits that it is appealing the
underlying revocation decision in the D.C. Circuit.
AeroBearings cannot simply disregard other means of
relief and opt for the extraordinary writ of mandamus.
Doc. 12 at 1.
FAA contends that for those reasons, the court lacks subject
matter jurisdiction to grant plaintiff's requested relief and
that, in any event, the Mandamus Complaint fails to state a claim
upon which mandamus relief can be granted.
III.
Applicable Pleading Principles
A.
Lack of Subject Matter Jurisdiction
When considering a motion to dismiss for lack of subject
matter jurisdiction, the court construes the allegations of the
complaint favorably to the pleader.
See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); Cobb v. Cent. States, 461
F.3d 632, 636
(5th Cir. 2006).
However, the court is not limited
to a consideration of the allegations of the complaint in
deciding whether subject matter jurisdiction exists.
v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
Williamson
The court may
consider conflicting evidence and decide for itself the factual
issues that determine jurisdiction.
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Id.
Because of the limited nature of federal court jurisdiction,
there is a presumption against its existence.
See Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189 (1936).
A
party who seeks to invoke federal court jurisdiction has the
burden to demonstrate that subject matter jurisdiction exists.
McNutt, 298 U.S. at 178; Wilson v. Republic Iron & Steel Co., 257
U.S. 92,
97
(1921).
Inasmuch as plaintiff is seeking mandamus relief to compel
an officer or employee of the United States or an agency thereof
to perform an alleged duty owed to plaintiff, as contemplated by
28 U.S.C.
§
1361, directly bearing on the subject matter
jurisdiction issue is the question of whether mandamus
jurisdiction exists, which is discussed in some detail under the
heading "Analysis" below.
B.
Infra at 8-12.
Failure to State a Claim
Rule 8 (a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
6
(internal
quotation marks and ellipsis omitted).
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true,
it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Igbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.") .
The facts pleaded must allow the court to inf er that the
plaintiff's right to relief is plausible.
678.
Igbal, 556 U.S. at
To allege a plausible right to relief, the facts pleaded
must suggest liability; allegations that are merely consistent
with unlawful conduct are insufficient.
566-69.
Twombly, 550 U.S. at
"Determining whether a complaint states a plausible
claim for relief . .
[is] a context-specific task that requires
the reviewing court to draw on its judicial experience and common
sense.
11
Igbal,
556 U.S. at 679.
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IV.
Analysis
A.
Lack of Mandamus Jurisdiction
"Mandamus is an extraordinary remedy, available only when
government officials clearly have failed to perform
nondiscretionary duties." Dunn-Mccampbell Royalty Interest, Inc.
v. Nat'l Park Serv., 112 F.3d 1283, 1288 (5th Cir. 1997); see
also In re Corrugated Container Antitrust Litig., 614 F.2d 958,
961-62
(5th Cir. 1980) (It is a "black-letter proposition that
mandamus is an extraordinary remedy for extraordinary
causes.") (citation omitted) . The writ compels "an officer or
employee of the United States or its agencies to perform a duty
owed to the plaintiff." 28 U.S.C.
§
1361. For mandamus
jurisdiction to exist, a plaintiff must show (1) a clear right to
the relief sought,
(2) a clear duty by the defendant to do the
particular act, and (3) that no other adequate remedy is
available. United States v. O'Neal, 767 F.2d 1111, 1112
(5th Cir.
1985).
1.
Lack of Clear Duty
Defendants' first argument against the presence of mandamus
jurisdiction in this case is that element two of the three-part
O'Neal test for mandamus jurisdiction is lacking--that there is
no clear duty by FAA to do the particular act that plaintiff
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seeks to have done through its Mandamus Complaint. The court
agrees. Plaintiff has not carried its burden of identifying a
clear duty by FAA to issue the press release requested.
For a plaintiff to have standing under 28 U.S.C.
§
1361, he
must "establish that a duty is owed to him. Any duty owed to the
plaintiff must arise from [a] statute .
or from the United
States Constitution." Giddings v. Chandler, 979 F.2d 1104, 1108
(5th Cir. 1992); see also Dunn-Mccampbell, 112 F.3d at 1288.
Plaintiff does not identify such a duty in its Mandamus
Complaint. The duty it seeks to have the court enforce arises
from FAA Order 2150.3B, which is regulatory guidance for FAA, and
requires FAA "to provide the public with accurate reliable
information about its enforcement actions." Doc. 10 at 8, '
22;
Doc. 11 at App. 138.
The only support plaintiff offers for the notion that the
court should disregard binding Fifth Circuit precedent and
consider regulatory guidance as a source of a clear duty in a
mandamus action is LeGrande v. United States, 774 F. Supp. 2d
910,
917
(N.D. Ill. 2011). First, the case is non-binding
precedent on this court and cannot displace binding Fifth Circuit
precedent. Second, LeGrande was not a mandamus case; it is a
negligence case, where a wider range of duties are available
beyond those set out by statute of the United States or the
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United States Constitution.
Third, the duty identified based on
section 9 of FAA Order 2150.3B is not a duty owed by FAA to
plaintiff but appears to be a duty owed by FAA to the general
public.
Put another way, plaintiff does not appear to be within
the "zone of interest" sought to be protected by the FAA Order.
Giddings, 979 F.2d at 1109.
Plaintiff does not provide any
argument that would support a conclusion that such a duty
satisfies the duty requirements for issuance of a writ of
mandamus.
This, of course, is in addition to the fact that
reliance on FAA Order 2150.3B, section 9, does not satisfy the
rule of the Fifth Circuit that the duty that would support
issuance of a writ of mandamus must be one created by a statute
or constitutional provision.
2.
Clear Right
The court also agrees with FAA that plaintiff cannot
establish a clear right to a writ of mandamus.
"[M]andamus is not
available to review discretionary acts of agency officials."
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 768
(5th Cir. 2011); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.
2002); Green v Heckler, 742 F.2d 237, 241 (5th Cir. 1984);
Giddings, 979 F.2d at 1108 (citations omitted). "Mandamus is an
appropriate remedy only when the plaintiff's claim is clear and
certain and the duty of the officer is ministerial and so plainly
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prescribed as to be free from doubt." Giddings, 979 F.2d at 1108
(internal quotation marks and citations omitted). The issuance of
the press release requested by plaintiff is not such a
ministerial and plainly prescribed act.
Plaintiff argues that the issuance of a press release is not
a discretionary act because defendants would simply need to omit
the three statements it alleges to be false and misleading in its
Mandamus Complaint.
But that argument does not make logical
sense. Were FAA to omit these three sentences for a revised press
release,
it would need to replace them with new sentences that
would still allow the press release to flow properly and make
sense. And such an act would necessarily involve the discretion
of the drafter of the new press release.
Such relief is not
available in a mandamus action.
3.
No Showing That No Other Adequate Remedy is
Available
The allegation of the complaint that plaintiff now has
pending an appeal from the National Transportation Safety Board's
decision overruling the Administrative Law Judge's decision in
favor of plaintiff is an indication that plaintiff does have
available an adequate remedy.
There may be other available
remedies, but the court need not dwell on that subject because
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the reasons previously discussed so clearly establish that the
court does not have mandamus jurisdiction.
B. Failure to State A Claim
Because the court has found that it does not have
jurisdiction to issue a writ of mandamus in this action, and is
dismissing the action on this basis, it need not reach
defendants' arguments regarding plaintiff's failure to state a
claim.
v.
Order
For the foregoing reasons,
The court ORDERS that defendants' motion to dismiss be, and
is hereby, granted, and all claims and causes of action asserted
by plaintiff against FAA in the above-captioned action be, and
are hereby, dismissed.
SIGNED October 9, 2018.
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