UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROBERT REPETTO
Plaintiff-Petitioner, Civil No. 1:13-cv-1894 (RCL)

V.

MICHAEL P. HUERTA, Administrator,
Federal Aviation Administration

VVVVVVVVVVV

Defendant-Respondent.

___________)
MEMORANDUM OPINION

Before the Court is the defendant’s Motion to Dismiss [8] plaintiff’s Petition for Review
[2]. Robert Repetto, plaintiff—petitioner, ﬁled a petition seeking judicial review Of a decision by
the National Transportation Safety Board (“NTSB”) upholding the Federal Aviation
Administration’s (“FAA”) order denying Repetto’s application for an airman medical certiﬁcate
pursuant to the Pilot’s Bill of Rights (“PBR”), Pub. L. NO. 112-153, 126 Stat. 1159 (2012).
Upon consideration of the defendant’s Motion to Dismiss, the plaintiff’ 5 Response thereto [1 3],
and the defendant’s Reply [15], the Court will GRANT the defendant’s Motion for the reasons
stated below.
I. BACKGROUND

The relevant facts are as follows: Robert Repetto (“Repetto”), plaintiff-petitioner, is
employed as an air trafﬁc control specialist with the FAA. Pl.’s Pet. for Review, Ex. A (Opinion
and Order of NTSB). He applied for an unrestricted airman medical certiﬁcate in February of
2011. Id. at 2. Repetto afﬁrmed on his application that he has a history of alcohol dependence

or drug abuse and that he has a history of arrests or convictions involving driving while

intoxicated by, while impaired by, or while under the inﬂuence of alcohol or drug. Id. at EX. A;
see also Def.’s Mot. to Dismiss 7. Repetto listed two events concerning his DUI history in the
narrative section: “12/04 previously reported” and “arrest 7/10, not guilty 8/10, reported AEA-
300.” Pl.’s Pet. for Review, Ex. A (Opinion and Order of NTSB).

In June, 201 1, the Regional Flight Surgeon in New York issued a preliminary denial
letter noting that petitioner was ineligible for a medical certiﬁcate citing 14 C.F.R.
§ 67.107(a)(4). Id. In July, Repetto sent a letter, through his counsel, to the Federal Air Surgeon
seeking reconsideration of his application and offering to provide additional documentation or to
resubmit medical reports. Id. While the Federal Air Surgeon was in the process of reconsidering
Repetto’s application for an airman medical certiﬁcate, Repetto sent two additional letters
conversely requesting that the Federal Air Surgeon make an adverse decision on his
reconsideration so that Repetto could appeal the decision to the NTSB. Def.’s Mot. to Dismiss 8.

In November, 2011, James R. DeVoll, Manager, Medical Appeals Branch in the Ofﬁce of
Aerospace Medicine, sent Repetto a letter explaining that additional medical information was
needed to determine Repetto’s eligibility for an airman certiﬁcate and requesting additional
records. Id. Repetto’s response asserted that the FAA’s request for information was not
reasonable or relevant. Id. He sent another letter to the FAA in December of 201 1 asserting that
the FAA’s request for additional medical information was a “pretext to avoid a full hearing with
the NTSB.” Id. In February of 2012, the FAA sent Repetto another letter requesting additional
medical records, to which Repetto responded by again refusing and stating that the request was
not reasonable. Id at 9. The Federal Air Surgeon then sent Repetto a ﬁnal denial letter in March

of 2012 based on Repetto’s failure to provide the medical information requested in the F AA’s

letters. Id.

Ix.)

Repetto ﬁled an appeal to the NTSB on March 27, 2012, which was assigned to an
Administrative Law Judge (“ALJ”). The Administrator ﬁled a motion for summary judgment,
arguing that there were no material facts in dispute because Repetto indisputably had not
provided the medical records requested or signed a release for the information. Id. The ALJ
issued an oral decision granting the motion for summary judgment after hearing oral argument
on all motions. The ALJ emphasized that the issue in the case was not whether Repetto was
qualiﬁed for a medical certiﬁcate, but rather the issues were whether the Administrator’s request
for additional information was reasonable, and whether Repetto had provided the requested
information. Id.

Repetto later ﬁled an appeal to the full NTSB; however, on October 23, 2013, the NTSB
upheld the Administrator’s denial of the medical certiﬁcate for failure to provide the requested
information. Id. Repetto now petitions this Court to review the agency’s decision.

II. LEGAL STANDARD

A. Rule 12(b)(6) Dismissal

Under Rule 12(b)(6), a court may dismiss a complaint, or any portion of it, for failure to
state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). To survive a motion to

dismiss, the pleading must contain enough factual allegations to “state a claim to relief that is

plausible on its face.” Bell. All. Corp. v. Twombly, 550 US. 544, 570 (2007). A complaint is
“plausible on its face” when the plaintiff “pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 US. 662, 663 (2009) (internal quotations omitted).

Additional pleading requirements are outlined in Rule 8 of the Federal'Rules of Civil

Procedure. Rule 8(a) requires pleadings seeking relief in federal district court to contain, inter

alia, “a short and plain statement of the claim showing that the pleader is entitled to relief,” and
“a demand for relief sought, which may include relief in the alternative or different types of
relief.” FED. R. CIV. P. 8(a)(2)-(3). Rule 8 must be satisﬁed in “all civil actions and proceedings
in the United States district courts, except as stated in Rule 81 .” FED. R. CIV. P. 1. Rule 81 does
not remove applicability of the Federal Rules of Civil Procedure from civil actions seeking
review of agency decisions. See generally FED. R. CIV. P. 81.
III. DISCUSSION

Rule 1 applies all Federal Rules of Civil Procedure to “civil actions . . . in the United
States district courts,” including Rule 8. FED. R. CIV. P. 1. Therefore, plaintiff must adhere to
the requirements of Rule 8 in a petition for review of an administrative agency’s action ﬁled with
this Courtl

Plaintiff‘s petition for review consists of statements of jurisdiction and venue, the

procedural history of the case through the administrative process, and a paragraph requesting

2

“full and independent review” of the NTSB’s ﬁnal Opinion and a hearing de novo on the matter.

P1.’s Pet. for Review 1-5. Nowhere in plaintiff s petition is there any mention of what the NTSB

did improperly, nor is there any mention of what relief is sought. Plaintiff must at least set forth

1 If plaintiff had ﬁled his petition for review with the Circuit Court of Appeals for the District of Columbia (or
another federal circuit court), then Rule 15 of the Federal Rules of Appellate Procedure would apply. FED. R. APP.
P. 1(a) (“These rules govern procedure in the United States courts of appeals”). Rule 15 requires that a petition for
review be ﬁled “with the clerk ofa court of appeals authorized to review the agency order,” and that it 1) “name
each party seeking review,” 2) “name the agency as a respondent,” and (3) “specify the order or part thereofto be
reviewed.” FED. R. APP. P. 15(a). Rule 15 requires less information to be stated in a petition for review; however,
because plaintiff ﬁled his petition for review with a district court, the Federal Rules of Appellate Procedure do not
apply.

2 Even ifthis Court construed plaintiffs petition for review as a claim for a de novo hearing, the PBR does not give
plaintiffthe right to such a hearing. The Administrative Procedure Act (“APA”) limits a court’s review ofan
agency’s decision to the administrative record. 5 U.S.C. § 706. A “[s]ubsequent statute may not be held to
supersede or modify” the APA’sjudicial review standards “except to the extent that it does so expressly.” Id. § 559.
Because the PBR does not expressly state thatjudicial review will be by way ofa de novo hearing, the APA’s
requirement that review be based on the administrative record applies. 49 U.S.C. § 44703(d)(3) (explaining that a
person may seekjudicial review of an NTSB order concerning airman certiﬁcates, and “[t]he findings of fact ofthe
Board in any such case are conclusive if supported by substantial evidence”).

4

why he believes the NTSB’s decision is wrong and why that entitles him to relief to satisfy Rule
8(a)(2), which requires a “statement of the claim showing that the pleader is entitled to relief.”
This Court cannot “draw the reasonable inference that the defendant is liable for the misconduct
alleged” when the plaintiff has not alleged any misconduct. Iqbal, 556 US. at 663 (internal
quotations omitted).

Additionally, plaintiff must at least include a “demand for relief sought” pursuant to Rule
8(a)(3). A request for a de novo hearing does not satisfy this requirement. Plaintiff‘s petition
contains no language expressing what relief he seeks from this Court. Without these statements,
plaintiffs petition does not satisfy the pleading requirements of Rule 8, and cannot survive a
motion to dismiss for failure to state a claim.

IV. CONCLUSION

In sum, defendant’s Motion to Dismiss for failure to state a claim is GRANTED because
plaintiffs petition for review of an agency decision did not satisfy the pleading requirements of
Rule 8(a).

A separate Order consistent with this Memorandum Opinion shall issue this date.

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Signed by Royce C. Lamberth, United States District Judge, mm, 2014.

