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Tre Aviation Corp. v. Federal Aviation Administration

United States District Court, D. Arizona

April 6, 2015

TRE AVIATION CORP., a Delaware Registry, LTD, and Robert C. Mace Plaintiffs,


H. RUSSEL HOLLAND, District Judge.

Motion to Dismiss

Defendant moves to dismiss plaintiff's complaint.[1] This motion is opposed.[2] Oral argument was not requested and is not deemed necessary.


Plaintiffs are TRE Aviation Corporation and Robert Mace, the vice-president of TRE Aviation. Defendant is the Federal Aviation Administration.

Plaintiffs acquired a Bell 206B helicopter, N61PH, serial number 3282, in 2004 and repaired it using parts, including a fuselage, from a salvage Bell 206B helicopter, serial number 3570.[3] Plaintiffs applied for and received a standard airworthiness certificate for N61PH, and the helicopter was returned to service in November 2005.[4] "In 2010, the Scottsdale Flight Standards District Office (FSDO) launched an effort to revoke" the "Standard Airworthiness Certificate"[5] for N61PH. The Administrator of the FAA issued an Order of Revocation on May 20, 2011.[6] Plaintiffs appealed the Order of Revocation. A hearing was held before a National Transportation Safety Board (NTSB) ALJ, who affirmed the Order of Revocation. An appeal to the NTSB was taken and the NTSB remanded the case for a new hearing, which was conducted before a different NTSB ALJ on June 18-19, 2013. On August 28, 2013, the second ALJ (ALJ Woody) issued a decision affirming the Administrator's Order of Revocation. ALJ Woody found that plaintiffs'

actions constituted a violation of 14 CFR Section 45.13(e), in that [plaintiffs] impermissibly removed the data plate from one aircraft and placed it into the fuselage of another, reconstructed aircraft; thereby misidentifying the aircraft. Further [plaintiffs] violated 14 CFR Section 43.3, in that [plaintiffs'] actions constituted a rebuilding of aircraft N61PH without authority to do so. Under Section 43.3(j) only a manufacturer may rebuild an aircraft it has manufactured under a type or production certificate.[7]

Another appeal to the NTSB was taken, and on June 20, 2014, the NTSB affirmed the ALJ's decision. In its order, the NTSB noted that plaintiffs "must physically surrender the standard airworthiness certificate for N61PH to a representative of the FAA...."[8] And, on July 23, 2014, plaintiffs surrendered the airworthiness certificate for N61PH.[9]

On August 19, 2014, plaintiffs commenced this action by filing a "Petition for Review" in which they seek review of the NTSB's June 20, 2014 decision. Plaintiffs "petition th[e] court for an evidentiary hearing and a full independent (de novo) review" of the June 20, 2014 decision.[10]

Defendant now moves to dismiss plaintiffs' petition.


Defendant first argues that plaintiffs' petition should be dismissed because this court lacks subject matter jurisdiction. "Under Rule 12(b)(1), a defendant may challenge the plaintiff's jurisdictional allegations in one of two ways." Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). A defendant may make a facial attack or a factual attack. Id . Here, defendant is making a facial attack. "A facial' attack accepts the truth of the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdic-tion.'" Id . (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). "The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction." Id.

Plaintiffs allege that the court has jurisdiction pursuant to Section 2(d) of the Pilot's Bill of Rights (PBR).[11] Section 2(d) of the PBR provides:

Upon a decision by the National Transportation Safety Board upholding an order or a final decision by the Administrator denying an airman certificate under section 44703(d) of title 49, United States Code, or imposing a punitive civil action or an emergency order of revocation under subsections (d) and (e) of section 44709 of such title, an individual substantially affected by an order of the Board may, at the individual's election, file an appeal in the United States district court in which the individual resides or in which the action in question occurred, or in the United States District Court for the District of Columbia. If the individual substantially affected by ...

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