Opinion
No. 3:02-CV-0554-P
October 1, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant Southwest Airlines Co.'s ("Southwest" or "Defendant") Motion to Dismiss ("Motion"), filed May 2, 2002. After careful consideration of the Parties' briefing and the applicable law, the Court hereby GRANTS Defendant's Motion,
Plaintiffs filed their response brief on May 28, 2002 and Defendant filed its reply brief on June 10, 2002.
FACTS
In response to the tragic events of September 11, 2001, the United States Congress enacted the Aviation and Transportation Security Act which amended existing regulations to increase safety in air travel. See Aviation and Transportation Security Act, Pub.L. No. 107-71, 115 Stat. 597 (codified as amended in scattered sections of 49 U.S.C.). The amended statute and regulations requires all air carrier employees and prospective employees who have unescorted access to an aircraft or the secured area of an airport to be subjected to a Criminal History Record Check ("CHRC"). See 49 U.S.C. § 44936 (a), (b)(1)(A). If the CHRC establishes that the person has been convicted (or found not guilty by reason of insanity) of any of twenty-eight offenses within the previous ten years, that individual is disqualified from employment in such a position. See 49 U.S.C. § 44936 (b)(1)(B).
The Act provides that the Under Secretary of Transportation shall prescribe regulations concerning "requirements for using the information received from the [CHRC] . . . to limit the dissemination of the information and to ensure that the information is used only to carry out" the requirements of the statute. See 49 U.S.C. § 44936 (c)(2)(B). Pursuant to this section, the Under Secretary did prescribe regulations concerning use of the information obtained through the CHRCs. See 14 C.F.R. § 108.229. Specifically, 14 C.F.R. § 108.229(j) is entitled "[l]imits on dissemination of results" and limits dissemination of the information contained in the CHRCs to a limited and defined group of persons. See 14 C.F.R. § 108.229(j).
Plaintiffs contend that employees represented by TWU 555 have been disciplined and discharged based upon CHRC information given to Southwest by the FBI for conduct that occurred prior to the ten-year "look back" period, as well as conduct not listed as an offense by 14 C.F.R. § 108. (Compl. ¶ 17.) Plaintiffs maintain that they will suffer irreparable harm if the FBI continues to furnish air carriers with information from CHRCs that falls outside the time frame and type of offenses set forth in 49 U.S.C. § 44936 and 14 C.F.R. § 108. (Compl. ¶ 18.) Thus, Plaintiffs seek a declaration that it is unlawful for Southwest, in reliance on information received from the FBI, to discipline an employee unless (1) the employee committed one of the 28 listed offenses and (2) the offense occurred within the ten-year period prescribed in the statute and regulations.
In its Motion to Dismiss, Southwest argues three bases for dismissal: (1) Plaintiffs lack standing to bring this action; (2) this Court lacks jurisdiction over the subject-matter; and (3) the FAA standards are minimums that Southwest may choose to exceed.
DISCUSSION
Southwest argues that the Federal Aviation Act does not provide a private cause of action for individual plaintiffs to enforce the regulations promulgated under the Federal Aviation Act; only the Administrator of the Federal Aviation Administration or the Attorney General may bring an action seeking the relief Plaintiffs seek. (Def.'s Mot. at 4.) In support of its motion, Southwest relies on Schmeling v. NORDAM, where the court held that a discharged employee did not have a private cause of action to enforce FAA drug-testing regulations because Congress has not manifested an intent to allow anyone other than the FAA Administrator or the Attorney General to enforce those regulations. See 97 F.3d 1336, 1344 (10th Cir. 1996).
Plaintiff directs the Court's attention to the Supreme Court's decision in Cort v. Ash, which provides a four-part test for determining whether an implied private cause of action is available. See 422 U.S. 66, 78-79 (1975). Plaintiff insists that an evaluation of the Cort factors compels the conclusion that Plaintiffs are entitled to bring a private cause of action to enforce the provisions of 49 U.S.C. § 44936 and 14 C.F.R. § 108.
The key inquiry a court must make in determining whether an implied private right of action under a certain federal law exists is whether Congress, expressly or by implication, intended to create a private right of action. See Schmeling, 97 F.3d at 1343-44 ("[t]he four-factor [ Cort] analysis has in effect been condensed into factor (2) — whether Congress expressly or by implication, intended to create a private cause of action.") (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16) (Scalia, J., concurring) ([W]e effectively overruled the Cort v. Ash analysis in Touche Ross, converting one of its four factors (congressional intent) into the determinative factor.)); Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306 (6th Cir. 2000). The United States Supreme Court explained in Alexander v. Sandoval,
Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.532 U.S. 275, 286-87 (2001).
Not only have Plaintiffs failed to point to a direct expression by Congress of an intent to provide a private cause of action or a private remedy to persons in Plaintiffs' situation, Plaintiffs have failed to provide any analysis or evidence to support their conclusory assertion that the Cort factors have been satisfied. (Pl.'s Resp. at 5.) Rather than offering evidence to demonstrate that Congress intended to provide a private remedy under this statute, Plaintiffs simply conclude that they "are entitled to privately enforce the privacy protections in the applicable statute and regulations." (Pl.'s Resp. at 5.)
The Congressional intent as to who has the power to enforce the rules concerning the employment investigations is made clear in 49 U.S.C. § 46106-46108. Section 46106 provides that the "Administrator of the Federal Aviation Administration . . . may bring a civil action against a person in a district court of the United States to enforce this part [Air Commerce and Safety] or a requirement or regulation prescribed . . . under this part." 49 U.S.C. § 46106. Or, on request of the Administrator of the Federal Aviation Administration, the Attorney General may bring a civil action to enforce this part [Air Commerce and Safety] or a requirement or regulation prescribed thereunder. See 49 U.S.C. § 46107 (b)(1)(A). Only one narrow provision of the Federal Aviation Act permits "an interested person" to bring a civil action to enforce its provisions. Specifically, § 46108 provides that "[a]n interested person may bring a civil action in a district court of the United States against a person to enforce section 41101(a)(1) of this title." 49 U.S.C. § 48108. Section 41101(a)(1) concerns the ability of an air carrier to provide air transportation with a certificate issued under the Act, which is not at issue in this case. See 49 U.S.C. § 41101. The regulations governing investigative and enforcement procedures under the FAA refer to the same enforcement mechanisms authorized by the statutory provisions. See, e.g., 14 C.F.R. § 13.1 et seq.
These statutory provisions, considered in the manner directed by the Supreme Court in Alexander v. Sandoval, do not create a private right of action. No where has Congress manifested an intent to allow a person other than the FAA Administrator or the Attorney General to enforce the regulations governing employment investigations. See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170-71 (2d Cir. 1998) (no private right of action under FAA drug-testing laws); Schmeling, 97 F.3d at 1344 (same); In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 407-08 (9th Cir. 1983) (no private right of action under FAA for wrongful death). In fact, the pertinent statutory sections expressly provide for administrative enforcement. See 49 U.S.C. § 46101. Because Congress has neither expressly nor impliedly provided Plaintiffs with a private federal cause of action to enforce the FAA regulations concerning employment background checks, Plaintiffs lack standing to bring this action and Defendant's Motion to Dismiss is hereby GRANTED.
A private individual, such as Plaintiffs, may file a complaint concerning a statutory violation of this section with the Administrator of the Federal Aviation Administration. According to § 46101, a "person may file a complaint in writing with the . . . Administrator of the Federal Aviation Administration with respect to aviation safety duties . . . about a person violating this part [Air Commerce and Safety] or a requirement prescribed under this part." 49 U.S.C. § 46101.
To the extent Plaintiffs seek to assert their claim under the Administrative Procedures Act, 5 U.S.C. § 702, their attempt fails. Section 702 entitles a person to judicial review of an "agency action." Because there has been no agency action within the meaning of the statute, Plaintiffs cannot use § 702 as their basis for having standing to sue. See 5 U.S.C. § 551, 701, 702, 704.
SO ORDERED.