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Roger Griggs v. Hon. Ray Lahood

March 17, 2011

ROGER GRIGGS,
PLAINTIFF,
v.
HON. RAY LAHOOD, SECRETARY OF TRANSPORTATION,
LAWRENCE FIELDS, MARTIN INGRAM, JOHN KREPP, AND THEODORA KESSARIS,
DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

This case arises out of the revocation of the plaintiff's certification to work as a Designated Aircraft Dispatch Examiner on behalf of the Federal Aviation Administration ("FAA"). The plaintiff asserts causes of action against all of the defendants-each of whom is associated with the FAA-for age discrimination, retaliation, violation of various constitutional rights, and violation of the Administrative Procedures Act ("APA"). The defendants now move to dismiss the plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a claim. For the reasons that follow, the Court grants the defendants' motion.

I. BACKGROUND

From approximately 1993 through August 2008, the plaintiff Roger Griggs was authorized by the FAA to be a Designated Aircraft Dispatcher Examiner ("DADE"). As a DADE, the plaintiff was given authority by the FAA to administer tests to individuals who sought airman certificates permitting them to work as aircraft dispatchers. Generally, aircraft dispatchers aid aircraft pilots with flight planning prior to takeoff, and then otherwise assist from the ground during flight. See, e.g., 14 C.F.R. § 121.601 (discussing certain mandated requirements for aircraft dispatchers). To receive an aircraft dispatcher airman certificate, federal regulations require that a candidate must first pass a set of examinations. The FAA is authorized by 49 U.S.C. § 44702 to designate a "qualified private person" to administer the required examinations to candidates seeking to receive an aircraft dispatcher airman certificate. Thus, pursuant to Section 44702, Griggs was named a Designated Aircraft Dispatcher Examiner, and permitted to administer aircraft dispatcher tests to applicants.

On August 11, 2008, the defendant John M. Krepp sent a letter to the plaintiff on behalf of the FAA canceling the plaintiff's DADE authority. The letter identified three bases for termination: (1) on August 3, 2008 the plaintiff allegedly improperly tested a non-U.S. citizen without first obtaining documentation showing that the candidate held a valid United States visa; (2) on July 23, 2008, the plaintiff allegedly tested two candidates in the same room, which the FAA asserted was contrary to written and verbal directives; and (3) between September 2006 and August 2008, at least 12 aircraft dispatcher application packages were allegedly returned to the plaintiff due to errors he made.

On August 21, 2008, the plaintiff sent a letter to the defendant Lawrence Fields, also of the FAA, with a copy to the defendant Krepp, denying the allegations in Krepp's August 11, 2008 letter. The plaintiff also requested a "Fact-Finding Evidentiary Appeal Hearing" concerning the revocation of his DADE authority, and asked that his DADE authority be immediately reinstated. (Ingram Decl., Ex. F.)

On February 12, 2009, the FAA held a hearing on the revocation of the plaintiff's DADE authority. On April 7, 2009, the defendant Lawrence Fields, a Manager of the Flight Standards Division of the FAA, sent the plaintiff a letter stating that, following the hearing, the decision to terminate the plaintiff's DADE authority had been upheld. Just over three weeks later, on April 29, 2009, Griggs filed a discrimination claim against the FAA with the Equal Employment Opportunity Commission ("EEOC") alleging age discrimination and retaliation. On June 10, 2009, the plaintiff received a "right to sue" letter from the EEOC denying his claim of discrimination.

On September 16, 2009, the plaintiff commenced the present action. In his complaint, Griggs asserts causes of action against (1) Secretary of Transportation Ray LaHood; (2) Lawrence Fields, a Manager of Flight Standards for the FAA in the plaintiff's region; (3) Martin Ingram, an Assistant Manager of Flight Standards for the FAA in the plaintiff's region; (4) John Krepp, a Manager of a Flight Standards District Office for the FAA in the plaintiff's region; and (5) Theodora Kessaris, the FAA Inspector who directly supervised his exercise of DADE authority. With regard to all of these defendants, the plaintiff asserts causes of action for: (1) age discrimination, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626; (2) retaliation for protected activity, in violation of Title VII provision 42 U.S.C. § 2000e-3; (3) deprivation of his Fifth Amendment due process rights and his First Amendment free speech rights; and (4) violation of the Administrative Procedures Act provision 5 U.S.C. § 558(c).

According to the plaintiff, the true reason that his DADE authority was terminated was because, at age 62, the FAA had decided he was too old to do his job. In addition, the plaintiff asserts that his direct supervisor, the defendant Kessaris, also sought to cancel his DADE authority in retaliation for his pointing out to her that she had incorrectly interpreted an FAA Order, and for advising her of malfunctions in a computer system that the FAA was using to receive applications for aircraft dispatcher certification. In support of his constitutional claims, the plaintiff asserts that the defendants violated his Fifth Amendment due process rights by holding his appeal hearing in the wrong FAA district, and by affirming the cancellation of his DADE authority without sufficient evidence. He also maintains that the defendants violated his First Amendment free speech rights by "canceling his authority because he drew attention to the [computer system] malfunctions, and to [the] misreading[] and misinterpretation of FAA publications by Defendants." (Compl., ¶ 58.) As for the plaintiff's basis for alleging that the defendants violated the APA, he maintains that:

[w]here Plaintiff pointed out discrepancies in the instructions given for inspecting applicant's Visas and where there was no requirement for applicants from certain foreign countries to obtain a valid Visa, Defendants were deliberately forcing Plaintiff to violate improper FAA procedures in violation of the Administrative Procedures Act. (Compl., ¶ 62.) He also asserts that:

[w]here Defendant, John Krepp, utilized Plaintiff's allege[d] failure to determine if applicant Obiri [whom the plaintiff had tested] had a valid visa as a reason for canceling his authority, violation of the Administrative Procedures Act was blatantly exhibited. (Id., ¶ 63.) The import of these allegations is not entirely clear to the Court, although it appears that the plaintiff asserts that the defendants violated the APA by

(1) requesting that he violate FAA procedures, and then (2) canceling his DADE authority for failing to do so.

On August 5, 2010, the defendants moved to dismiss the plaintiff's complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The defendants primarily assert that the plaintiff's constitutional and APA causes of action are substantive challenges to the FAA's decision to terminate the plaintiff's DADE authority, and that pursuant to 49 U.S.C. ยง 46110, the federal courts of appeals have exclusive jurisdiction to consider such a challenge. The defendants also suggest that the plaintiff's discrimination claims are barred for similar reasons, but do not argue this "for purposes of the instant motion to dismiss." (Defs.' Reply at 6.) The defendants thus primarily move to dismiss the plaintiff's discrimination claims on the basis that the plaintiff has not alleged a valid ...


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