De Feyter v . FAA CV-10-358-JL 3/25/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Robert L . de Feyter

v. Civil N o . 10-cv-358-JL Opinion N o .

Federal Aviation Administration

OPINION & ORDER

The question in this case is whether a private citizen can

compel the Federal Aviation Administration (“FAA”) to impose

civil penalties on third parties who have violated FAA

regulations. Plaintiff Robert L . de Feyter, who lives near the

Apte Heliport in North Conway, New Hampshire, has been

complaining to the FAA for years that the heliport is being used

for flights at dangerously low altitudes and at night. The FAA,

which approved the heliport in 2000 for daytime flights only,

investigated the complaints, withdrew its approval, and

recommended in 2005 that the heliport be closed. Nevertheless,

de Feyter alleges that the heliport is still being used in the

same dangerous manner. He has repeatedly asked the FAA to impose

civil penalties on the heliport’s owner and pilots under the FAA

Act,

, but the FAA has declined to do s o , noting

that its heliport “determinations are only advisory” to state and

local governments.

. This pro se action is de

Feyter’s attempt to compel the FAA to impose such penalties. The FAA has moved to dismiss the case for lack of subject-

matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), arguing that

(1) there is no private right of action to enforce the FAA Act or

related regulations; (2) its decision not to impose civil

penalties is committed to agency discretion and therefore not

reviewable under the FAA Act, the Administrative Procedure Act

(“APA”),

et seq., or by petition for a writ of

mandamus; and (3) even if that decision were reviewable, only the

United States Court of Appeals for the First Circuit or the D.C.

Circuit would have jurisdiction to review i t , see

. After hearing oral argument, and for essentially those

reasons, this court grants the motion to dismiss. De Feyter’s

request that the case be transferred instead to one of those

circuit courts is denied, as transfer is not “in the interest of

justice.”

; see also Britell v . United States,

0 , 75 (1st Cir. 2003) (where a case clearly lacks

merit, “it is in the interest of justice to dismiss it rather

than to keep it on life support”).

I. Applicable legal standard

“Facial attacks on a complaint” under Rule 12(b)(1) “require

the court merely to look and see if the plaintiff has

sufficiently alleged a basis of subject matter jurisdiction.”

Torres-Negron v . J & N Records, LLC,

5 1 , 162 (1st Cir.

2 2007). In making that determination, the court “must credit the

plaintiff’s well-pled factual allegations and draw all reasonable

inferences in the plaintiff’s favor.” Merlonghi v . United

States,

0 , 54 (1st Cir. 2010). Where, as here, the

plaintiff is proceeding pro s e , the complaint must be construed

even more generously, “held to less stringent standards than

formal pleadings drafted by lawyers.” Estelle v . Gamble,

7 , 106 (1976); accord Rodi v . S . New Eng. Sch. of Law,

, 13 (1st Cir. 2004). “If the well-pleaded facts,

evaluated in that generous manner, do not support a finding of

. . . subject-matter jurisdiction,” then the court has no

authority to review the case, and it must be dismissed.

Fothergill v . United States,

4 8 , 251 (1st Cir. 2009).

As the FAA acknowledges, see document n o . 12 at 2 n.2, some

of its arguments could be viewed not as jurisdictional

challenges, but as arguments that de Feyter has failed to state a

claim for relief. Under such circumstances, the court may

analyze the arguments under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, rather than Rule 12(b)(1). See, e.g., Mercado

v . Ritz-Carlton San Juan Hotel, Spa & Casino,

1 , 46 n.6

(1st Cir. 2005); Arroyo-Torres v . Ponce Fed. Bank,

(1st Cir. 1990) (court is “not bound by the label”); 5B

Charles Alan Wright and Arthur R. Miller, Federal Practice and

Procedure § 1347, at 51 (3d ed. 2004) (“the substance of a

3 party’s defense or objection rather than its form will control

the district court’s treatment of a Rule 12(b) motion”). The

Rule 12(b)(6) analysis is similar to the Rule 12(b)(1) analysis:

construing the complaint in the same generous manner, the court

must determine whether the plaintiff has made factual allegations

sufficient to “state a claim to relief that is plausible on its

face.” Ashcroft v . Iqbal, 129 S . C t . 1937, 1949 (2009 (quoting

Bell Atl. Corp. v . Twombly,

4 4 , 570 (2007)).

II. Background

In 1997 or 1998, Wylie Apte submitted a “Notice of Landing

Area” to the FAA, proposing to establish a heliport on his

property in North Conway, New Hampshire. See

and 157.5 (requiring any “person who intends to . . . establish a

new airport or activate an airport,” including a heliport, to

notify the FAA “90 days in advance”). Apte had been operating

the heliport for more than a decade without FAA approval. After

receiving that notice, the FAA conducted an aeronautical study,

ultimately issuing a “letter of determination” in early 2000 that

gave “conditional” approval to the heliport. See

§ 157.7

(providing that the FAA, after conducting an aeronautical study,

may issue an “advisory” determination of either “no objection,”

“objectionable,” or a “conditional determination [that] will

identify the objectionable aspects of a project or action and

4 specify the conditions which must be met and sustained to

preclude an objectionable determination”). One of the conditions

was that the heliport be used only for daytime flights.

In the years that followed, the FAA received numerous

complaints of nighttime flights at the heliport, including from

de Feyter, who lives nearby. In 2005, after conducting an

investigation and a hearing, the FAA informed de Feyter that it

had concluded “that revocation of the determination letters to

both the Apte Heliport [and another nearby heliport] is

warranted.” Shortly thereafter, the FAA issued a letter to Apte

“terminating approval” of the heliport “because the FAA has

received information indicating that conditions stated in our

determination letter are not being complied with. Specifically,

that helicopter operations are being conducted at night when

night operations are not authorized.” See id. § 157.7(c)

(indicating that an FAA determination may be “revised, or

terminated . . . based on new facts”). According to de Feyter,

the FAA not only received those reports, but confirmed them

through its investigation and a hearing.1 The letter to Apte

1 The FAA has submitted its own version of events, see document n o . 12-1, which differs from de Feyter’s in a number of respects. For example, the FAA denies that it made any finding of a regulatory violation or any “formal determination[] that operations at the Apte Heliport fell outside the conditions” stated in its determination letter. Id. at 5-6. For purposes of analyzing the FAA’s motion to dismiss, however, this court assumes that de Feyter’s account is the correct one. See Part I , supra.

5 “recommend[ed] that all operations at the heliport be ceased

immediately.”

Notwithstanding that recommendation, the Apte Heliport has

continued operating for the past six years and, according to de

Feyter, still conducts nighttime flights, as well as flights at

dangerously low altitudes over populated areas. Apte has not

submitted a further “Notice of Landing Area” seeking to reinstate

the FAA’s approval of the heliport, under either the same or

different conditions. Believing that the lack of further notice,

coupled with the continued use of the heliport for unauthorized

flights, violates FDA regulations (specifically, the notice

requirements of

and 157.5), 2 de Feyter has

repeatedly requested that the FAA impose civil penalties against

the heliport’s owner and pilots under the FAA Act,

. But the FAA has refused to do s o , noting that its

heliport “determinations are only advisory” to state and local

governments.

. The FAA informed de Feyter by

letter in 2010 that “the evidence we found does not warrant

2 It is debatable whether those FAA regulations actually require further notice in this situation, especially after the FAA has already conducted a hearing on the matter. For purposes of analyzing the FAA’s motion to dismiss, however, this court assumes arguendo that further notice is required and that the Apte Heliport’s owner and pilots have violated the regulations.

6 taking FAA action” and that “[u]nless you raise new issues to u s ,

we view this matter as closed.”

After receiving that letter, de Feyter brought this pro se

action against the FAA, requesting that this court “direct the

FAA back to its mission” by ordering it to “apply civil

penalty(s) against the operator and pilots using the terminated

Apte Heliport.”3 The complaint itself does not specify which

claim(s) de Feyter is asserting; it merely invokes the FAA Act

and regulations and then requests the relief quoted above.

Recognizing that pro se complaints must be construed liberally,

the FAA assumed, for purposes of its motion to dismiss, that de

Feyter was asserting (1) a private cause of action to enforce the

FAA Act and regulations; (2) a petition for direct review of

agency action under the FAA Act and/or the APA; and (3) a

petition for writ of mandamus under

and 1651.

Those are the claims typically asserted by a private citizen

seeking relief of this sort. De Feyter essentially embraced them

in his objection, sur-reply, and oral argument. Accordingly,

this court will treat them as his claims and analyze each one in

turn.

3 The complaint also requested an award of damages for de Feyter’s costs in bringing this action, but he has since indicated that “has no objection” to the dismissal of that request, which the FAA argued was barred by sovereign immunity. See document n o . 1 0 , at 6.

7 III. Analysis

A. Private cause of action

First, the FAA argues that there is no private cause of

action to enforce the FAA Act and related regulations, and that

this court therefore lacks subject-matter jurisdiction over that

claim. The First Circuit has indeed ruled that “Congress, in

crafting the [FAA] Act, intended public, not private,

enforcement,” and that “neither the Act nor the regulations

create implied private rights of action.” Bonano v . E . Caribbean

Airline Corp.,

1 , 86 (1st Cir. 2004) (identifying “a

long list of other courts that have concluded” the same); see

also Buck v . Am. Airlines, Inc.,

9 , 34 (1st Cir. 2007)

(reiterating that “for the purpose of implying private rights of

action, the FAA Act . . . is barren soil”). So it is clear that

de Feyter cannot bring such a claim. He has not attempted to

argue otherwise, or to distinguish this case from those binding

precedents.

That does not, however, deprive this court of subject-matter

jurisdiction over the claim. “It has long been recognized that

where a plaintiff asserts that a private right of action is

implied from federal law, federal courts do have the requisite

subject matter jurisdiction to determine whether such a federal

remedy exists.” Arroyo-Torres,

(quotation

omitted); see also Verizon Md., Inc. v . Pub. Serv. Comm’n of Md.,

8

(2002) (explaining that “the absence of a

valid . . . [private] cause of action does not implicate subject-

matter jurisdiction,” so long as the plaintiff’s assertion of

that cause of action is not “wholly insubstantial and

frivolous”). Nevertheless, because no private cause of action

exists, de Feyter’s claim must be dismissed on the merits under

Rule 12(b)(6). See, e.g., Arroyo-Torres,

(affirming Rule 12(b)(1) dismissal under Rule 12(b)(6) in similar

situation).

B. Direct review of agency action

Next, the FAA argues that its decision not to impose civil

penalties is discretionary and therefore not subject to direct

review under the FAA Act and/or the APA. Both of those statutes

authorize a person adversely affected by final agency action to

seek direct review of i t . See

(FAA Act--

authorizing “a person disclosing a substantial interest in an

[FAA] order” to seek review of that order);

and

704 (APA--authorizing “[a] person . . . adversely affected or

aggrieved by agency action” including a “failure to act,” to seek

review where permitted by statute, such as the FAA Act, or where

“there is no other adequate remedy in a court”); Penobscot Air

Servs., Ltd. v . FAA,

(1st Cir. 1999)

(explaining that, where the FAA Act is silent, the APA controls).

9 But neither statute permits review “to the extent that . . . [the

challenged] agency action is committed to agency discretion by

law.”

(a)(2) (APA); see also Steenholdt v . FAA,

(D.C. Cir. 2003) (construing the FAA Act to

have the same limitation); Adams v . FAA,

(9th

Cir. 1993) (same).

It is well established that “an agency’s decision not to

take enforcement action should be presumed immune from judicial

review under § 701(a)(2),” because “such a decision has

traditionally been ‘committed to agency discretion,’” and

“Congress [in] enacting the APA did not intend to alter that

tradition.” Heckler v . Chaney,

2 1 , 832 (1985); see

also Taylor v . U.S. Dep’t of Labor,

, 9-10 (1st Cir.

2005). The presumption “may be rebutted,” however, “where the

substantive statute has provided guidelines for the agency to

follow in exercising its enforcement powers,” such as “by setting

substantive priorities, or by otherwise circumscribing an

agency’s power to discriminate among issues or cases it will

pursue.” Chaney, 470 U.S. at 833. In analyzing whether the

presumption has been rebutted, courts generally “consider both

[1] the nature of the administrative action at issue and [2] the

language and structure of the statute.” Drake v . FAA,

9 , 70 (D.C. Cir. 2002).

10 The administrative action at issue here is the FAA’s

decision not to impose civil penalties on the Apte Heliport’s

owner and pilots for violating FAA regulations (specifically, the

notice requirements set forth in

and 157.5).

As the Supreme Court noted in Chaney, such a decision “often

involves a complicated balancing of a number of factors which are

peculiarly within [the agency’s] expertise,” including “whether

agency resources are best spent on this violation or another,

whether the agency is likely to succeed if it acts, whether the

particular enforcement action requested best fits the agency’s

overall policies, and, indeed, whether the agency has enough

resources to undertake the action at all.” 470 U.S. at 831.

Agencies “generally cannot act against each technical violation”

of their regulations, so there must be a “proper ordering of

. . . priorities,” and the “agency is far better equipped than

the courts” to do i t . Id. at 831-32. As a result, the decision

not to impose civil penalties is generally the type of action

committed to agency discretion.

The FAA Act’s language and structure confirm that the

specific penalty decision at issue here is indeed committed to

agency discretion. Under the Act, “[a] person is liable to the

United States Government for a civil penalty of not more than

[the statutory maximum] for violating . . . a regulation

prescribed” under chapter 4 0 1 , which includes the notice

11 regulations that de Feyter alleges were violated.

(a)(1). In a section entitled “Administrative imposition of

penalties,” the Act provides that, after notice and an

administrative hearing, the “FAA may impose a civil penalty for a

violation of chapter 401 . . . or a regulation prescribed”

thereunder.

§ 46301(d)(2) (emphasis added). If the penalty

exceeds a certain amount, the Act prohibits the FAA from imposing

it administratively, see

(d)(4), but provides

that the FAA “may” bring a civil action seeking to impose i t ,

§§ 46106 and 46305 (emphasis added). Of course, “the term ‘may’

usually indicates that something is permissive, not mandatory,”

Liberty Mut. Ins. C o . v . Greenwich Ins. Co.,

, 197

(1st Cir. 2005), and thus suggests that the FAA need not impose

or seek penalties for every violation.4

Nothing in the FAA Act supplies a “meaningful standard . . .

against which to judge the agency’s exercise of discretion” in

4 In contrast, the Act states that the FAA “shall” investigate “reasonable” complaints of regulatory violations (unless it “is of the opinion that the complaint does not state facts that warrant an investigation or action”) and “shall issue an order to compel compliance” if it “finds in an investigation . . . that a person is violating this part.”

(a) (emphases added). Neither of those provisions is at issue here, because de Feyter is seeking to compel the imposition of civil penalties, not merely an investigation (which, he alleges, has already occurred) or an order of compliance (he views the FAA’s 2005 letter to Apte as a standing order to close the heliport, see document n o . 1 3 , at 4 ) . It is worth noting, though, that the D.C. Circuit has ruled that the Act “gives the FAA virtually unbridled discretion” even over the decision whether to investigate. Drake,

2 .

12 deciding which regulatory violations to penalize and which not to

penalize. Taylor,

. Nor does anything in the FAA’s

regulations. See

(stating that the FAA may

dispose of a case without enforcement action even where “it is

determined that a violation . . . of the FAA Act . . . or

regulation issued under it” has occurred). De Feyter argues that

the FAA’s written Compliance and Enforcement Program supplies

such a standard. See FAA Order N o . 2150.3B (Oct. 1 , 2007). But

that program does not purport to cabin agency discretion; to the

contrary, it states that the “FAA’s discretion in these areas is

absolute and presumed to be immune from review,” citing Chaney as

authority. Id. at 7-3.5 So the presumption that the FAA’s

decision not to impose civil penalties is committed to agency

discretion--and thus “immune from judicial review”--has not been

rebutted, at least by the sources that the parties have

5 At oral argument, de Feyter also argued for the first time that the instructions to the FAA’s “Notice of Landing Area” form cabin FAA discretion by warning applicants that “the FAA Act . . . provides that any person who violates a rule, regulation or order . . . shall be subject to a civil penalty not to exceed $1,000 for each violation.” (Emphasis added). “This court generally will not consider theories raised for the first time at oral argument, out of fairness to adverse parties and the court.” Prince v . Metro. Life Ins. Co.,

, 22 n.11. That is particularly true where, as here, they rely on materials outside the record. Even if properly raised, moreover, de Feyter’s argument would fail because the instructions merely purport to paraphrase the FAA Act’s civil penalty provision, which speaks for itself. Again, the FAA Act states that the FAA “may” impose civil penalties, not that it “shall.”

13 identified and that this court has been able to find. Chaney,

470 U.S. at 832.

Like the absence of a private cause of action, see Part

III.A, supra, the fact “[t]hat a plaintiff complains about an

action that is committed to agency discretion by law does not

mean that his case is not a ‘civil action[] arising under the

Constitution, laws, or treaties of the United States,’

,” nor does it “mean, therefore, the court lacks subject

matter jurisdiction” over i t . Oryszak v . Sullivan,

2 2 ,

526 (D.C. Cir. 2009) (citing Baker v . Carr,

(1962)). It is an issue of justiciability, not jurisdiction.

See

Nevertheless, because the FAA’s decision is committed to

agency discretion and therefore not reviewable under the FAA Act

or the APA, de Feyter’s petition for direct review must be

dismissed on the merits under Rule 12(b)(6). See Part I , supra;

Arroyo-Torres,

.

C. Exclusive jurisdiction of circuit courts

Even if the FAA’s decision were reviewable, the FAA argues

that only the United States Courts of Appeals for the First

Circuit or the D.C. Circuit would have jurisdiction to review i t ,

thus precluding review in this court. To the extent (if any)

that de Feyter is seeking review of an FAA order, that is true.

The FAA Act provides that “a person disclosing a substantial

14 interest in an order issued by” the FAA “may apply for review of

the order by filing a petition for review in the United States

Court of Appeals for the D.C. Circuit or in the court of appeals

of the United States for the circuit in which the person

resides,”

(a), and further states that the

petitioned court has “exclusive jurisdiction to affirm, amend,

modify, or set aside any part of the order and may order the

[FAA] to conduct further proceedings.”

§ 46110(c) (emphasis

added); see also Aviators for Safe & Fairer Regulation, Inc. v .

FAA,

2 2 , 225 (1st Cir. 2000).

It is debatable, though, whether the FAA action that de

Feyter is challenging qualifies as an “order” under the FAA Act,

as opposed to some other form of agency action covered only by

the APA. See

(noting that the term “order” has been “read

expansively” to encompass even informal letters, “so long as the

agency’s position is definitive and clearly expressed”); compare

Ass’n of Citizens to Protect & Pres. The Env’t of the Oak Grove

Cmty. v . FAA,

6 4 , 766 (11th Cir. 2008)

(unpublished) (suggesting that § 46110(a) also “applies when an

agency’s failure to act results in a final order never being

issued, thereby indefinitely depriving the court of appeals of

jurisdiction”), with Capozzi v . Dep’t of Transp.,

7 , 95 (D. Mass. 2001) (distinguishing, in dicta, between

“orders” and “agency inaction”). Indeed, even the FAA seems

15 unable to make up its mind on that issue. Compare document n o .

7-1, at 12 (arguing that § 46110 applies), with document n o . 1 2 ,

at 5 (arguing that “there is no FAA order to have reviewed”).

This court need not resolve that debate, because de Feyter’s

claim is not reviewable anyway for the reasons already discussed.6

D. Request for transfer

To the extent (if any) that the circuit courts have

exclusive jurisdiction, de Feyter requests that this court

transfer the case to one of those courts under

,

which provides:

Whenever a civil action is filed in a court . . . , including a petition for review of administrative action, . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.

6 The FAA also argues that de Feyter’s claim is not reviewable under the FAA Act because it was filed more than 60 days after any “order” was issued. See 49 U.S.C. 46110(a) (providing that the “petition must be filed not later than 60 days after the order is issued,” unless “there are reasonable grounds” for any further delay). This court need not reach that issue either.

16 As construed by the First Circuit, that statute “furnishes a

court that lacks jurisdiction over an action with a choice

between transfer and dismissal. That choice is subject to a

rebuttable presumption in favor of the transfer alternative.”

Subsalve USA Corp. v . Watson Mfg., Inc.,

1 , 43 (1st

Cir. 2006). “Since the term ‘interest of justice’ is vague,

district courts have a good deal of discretion in deciding

whether to transfer a case.” Phillips v . Seiter,

(7th Cir. 1999).

Where, as here, a case clearly lacks merit or would not be

reviewable even in the transferee court, “it is in the interest

of justice to dismiss it rather than to keep it on life support

(with the inevitable result that the transferee court will pull

the plug).” Britell, 318 F.3d at 7 5 ; see also Phillips,

(“there is no reason to raise false hopes and waste

judicial resources by transferring a case that is clearly

doomed”); Charles v . Rice,

(1st Cir. 1994)

(concluding that transfer “would be to no avail” where “the only

tribunal arguably possessed of jurisdiction” had held that it

lacked jurisdiction under such circumstances). In keeping with

that principle, this court denies de Feyter’s request for

transfer, concluding that transfer would be futile and hence

would waste judicial resources without furthering the interest of

justice. Of course, this ruling does not prevent de Feyter from

17 filing a new petition with one of the circuit courts, if he

wishes to do s o .

E. Mandamus claim

Finally, the FAA argues that it cannot be compelled to

impose civil penalties by writ of mandamus under

and 1651, again because the decision not to impose such

penalties is committed to agency discretion. “Mandamus is

regarded as an extraordinary writ reserved for special

situations.” In re City of Fall River,

0 , 32 (1st Cir.

2006). One of its “ordinary preconditions” is “that the agency

or official have acted (or failed to act) in disregard of a clear

legal duty.”

To satisfy that standard, the duty must be

“non-discretionary.” Eveland v . Dir. of CIA,

6 , 51

(1st Cir. 1988) (quoting Heckler v . Ringer,

0 2 , 616-17

(1984)). Because the FAA’s decision not to impose civil

penalties is indeed discretionary, see Part III.B, supra,

mandamus relief is unavailable in this case. Once again, that

does not mean that this court lacks subject-matter jurisdiction.

See

(“The district courts shall 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.”). But it means that de

Feyter’s mandamus claim must be dismissed under Rule 12(b)(6) for

18 failure to state a claim. See Part I , supra; Arroyo-Torres,

.

IV. Conclusion

For the reasons set forth above, the FAA’s motion to

dismiss7 is GRANTED, under Rule 12(b)(6) rather than Rule

12(b)(1). De Feyter’s request for transfer to the First Circuit

or D.C. Circuit8 is DENIED. The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph N . Laplante u/ited States District Judge

Dated: March 2 5 , 2011

cc: Robert L . de Feyter, pro se Gretchen Leah Witt, Esq.

7 Document n o . 7 . 8 Document n o . 1 0 , at 7-9.

19