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Gaylord v. Spartan College of Aeronautics & Technology, LLC

United States District Court, N.D. Oklahoma

July 26, 2019

NANETTE GAYLORD, an Individual, Plaintiff,
SPARTAN COLLEGE OF AERONAUTICS & TECHNOLOGY, LLC, a Foreign Limited Liability Company; and JANUS ABCZYNSKI, an Individual, Defendants.



         I. Background

         Plaintiff has worked in the aviation industry for more than four decades and was appointed as a Designated Pilot Examiner (DPE) by the Oklahoma City Flight Standards District Office on January 12, 1989. DPEs are designees of the Federal Aviation Administration (FAA), appointed pursuant to 49 U.S.C. § 44702(d) and 14 C.F.R. § 183.23, and are authorized to examine and evaluate prospective applicants for pilot's certificates or for ratings on existing pilot's certificates. Plaintiff passed examinations by the FAA at least fifty times between her appointment and August 21, 2014.

         On October 24, 2013, the Will Rogers Flight Standards District Office (WR FSDO) asked Plaintiff to perform a number of “check-rides” that WR FSDO was unable to perform during a federal government furlough. A “check-ride” is an evaluation flight to determine whether an applicant will be awarded a pilot's certificate or a particular rating on an existing pilot's certificate. Plaintiff agreed to WR FSDO's request and alleges that she performed approximately eighty-one check-rides in addition to those scheduled through her own private business. Plaintiff gave failing grades to the majority of the eighty-one applicants, including a majority of those who were students of Defendant Spartan Education, L.L.C. (Spartan).[1]

         On August 21, 2014, Randy Burke, an FAA Aviation Safety Investigator, informed Plaintiff that her status as a DPE was under investigation and instructed Plaintiff to cease pilot examinations. Burke was the FAA's Principal Operations Inspector overseeing Spartan at the time and is a graduate of Spartan. Burke led the FAA's investigation of Plaintiff. On September 15, 2014, the FAA terminated Plaintiff's DPE appointment. Plaintiff appealed but was unsuccessful.

         Plaintiff filed this action in the District Court for Tulsa County, Oklahoma, asserting tort claims against Burke, Spartan, and defendant Janusz Abczynski, a flight instructor employed by Spartan. Plaintiff's petition alleges that the defendants (1) maliciously and wrongfully interfered with her business and her reputation within the aviation industry by making false accusations about her performance as a DPE in order to instigate a fraudulent investigation designed to terminate her DPE; (2) made false statements concerning Plaintiff's abilities in her role as a DPE; and (3) conspired to defame Plaintiff and to wrongfully and maliciously interfere with her business as a DPE. Plaintiff alleges that Spartan was seeking approval for in-house examination privileges, which require certain passage rates. She alleges that her check-ride evaluations were accurate but harmed Spartan's attempts to achieve the required passage rates.

         Burke removed the action to this Court, citing original jurisdiction pursuant to 28 U.S.C. § 1331, and removal jurisdiction pursuant to 28 U.S.C. § 1442(a), which governs removal of an action by a federal officer. Plaintiff subsequently dismissed Burke from the proceeding and filed a motion to remand for lack of subject-matter jurisdiction. (Doc. 5). The remaining defendants, Spartan and Abczynski (hereinafter referred to as Defendants), filed notices of consent to removal and a brief in opposition to Plaintiff's motion to remand. Defendants also filed a motion to dismiss Plaintiff's petition pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 11).

         II. Motion to Remand

         Plaintiff contends the federal officer removal statute provided the only proper grounds for removal of this action, and that Burke's dismissal from the case eliminates the basis for federal subject-matter jurisdiction.[2] However, Burke's notice of removal also invoked the Court's original jurisdiction pursuant to § 1331, and Defendants contend that Plaintiff's petition presents a substantial federal question conferring original subject-matter jurisdiction. Defendants also contend that Abczynski is entitled to removal as a federal officer, pursuant to § 1442(a).

         A. Substantial Federal Question Jurisdiction

         Under § 1331, the federal district courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” A case “arises under” federal law when a “well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Gilmore v. Weatherford, 694 F.3d 1160, 1170 (10th Cir. 2012) (citing Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006)). The removing party bears the burden of establishing the existence of federal subject-matter jurisdiction. See Baby C v. Price, 138 Fed.Appx. 81, 83 (10th Cir. 2005) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

         Defendants characterize Plaintiff's tort claims as a “backdoor” challenge to the FAA's decision to terminate Plaintiff's DPE and contend that her petition raises a “substantial federal question” establishing federal jurisdiction, as set forth in Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005). In addition, Defendants argue that individual elements of Plaintiff's claims require the application of federal law. For example, to prove her claim for tortious interference with business relations, Plaintiff must show that she possessed a right to maintain her DPE, which is governed by federal law, and must prove Defendants wrongfully caused the FAA to terminate her DPE.[3] Similarly, Plaintiff's defamation claim requires proof of a false and defamatory statement, which Defendants contend requires an evaluation of Defendants' obligations under FAA rules to report suspected violations and participate in investigations.[4]Defendants also contend that to establish causation on all of Plaintiff's tort claims will require “litigating the FAA's investigation and decision-making.” (Doc. 13 at 9). Finally, they contend that because Plaintiff must show damages were proximately caused by Defendants, her claims cannot be “extricated” from the FAA's investigation and decision. (Id. at 10).

         The boundaries of “substantial federal question” jurisdiction are “exceedingly narrow-a ‘special and small category' of cases.” Gilmore, 694 F.3d at 1171 (quoting Empire, 547 U.S. at 699). The ‘mere need to apply federal law in a state-law claim' will not ‘suffice to open the arising under door.'” Id. (quoting Grable, 545 U.S. at 313). Rather, to invoke “substantial federal question” jurisdiction, a party “‘must show that a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.'” Becker v. Ute Indian Tribe of the Uintah, 770 F.3d 944, 947 (10th Cir. 2014) (citing Gunn v. Minton, 568 U.S. 251, 258 (2013)).

         Plaintiff contends that Defendants have failed to identify any specific federal issues that are necessarily raised by her claims and are in dispute. However, the focus of both parties' briefing is on the third and fourth requirements set forth in Gunn. Therefore, the Court will assume, without deciding, that Defendants can satisfy the first two requirements and will proceed directly to the issue of substantiality.

         Under Grable, substantiality requires “a serious federal interest in claiming the advantages thought to be inherent in a federal forum.” Gilmore, 694 F.3d at 1171 (citing Grable, 545 U.S. at 313). “The substantiality inquiry under Grable looks . . . to the importance of the issue to the federal system as a whole, ” rather than its significance to the parties in the immediate case. Gunn, 568 U.S. at 260. In Grable, the Internal Revenue Service (IRS) seized real property belonging to the plaintiff to satisfy a federal tax debt. The plaintiff received notice of the seizure by certified mail and did not exercise its statutory right to redeem the property within 180 days before the IRS sold the property and granted a quitclaim deed to the buyer. The plaintiff later brought a quiet title action in state court, arguing that the buyer's record title was invalid because the IRS had failed to notify plaintiff of the seizure of his property by personal service, which plaintiff argued was required under the applicable federal statute. The Supreme Court held that the quiet title claim raised an issue of federal law sufficiently substantial to confer federal jurisdiction, noting that whether the notice given to the plaintiff satisfied the statute was “an essential element of its quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case.” Grable, 545 U.S. at 315. The Court concluded that “[t]he meaning of the federal tax provision is an important issue of federal law that sensibly belongs in a federal court, ” noting the government's strong interest in satisfying its claims against delinquent taxpayers promptly and with certainty. Id. The Court further noted that state title cases raising a similar issue of federal law would be rare and removal would therefore have “only a microscopic effect on the federal-state division of labor.” Id.

         The Court finds Grable inapposite here. Plaintiff's claims do not raise federal issues comparable to the construction of the statutory notice provision at issue there. Instead, Empire, a subsequent case applying Grable, is more relevant. In Empire, a deceased federal employee's estate had recovered a settlement in state court with third parties alleged to have caused the decedent's injuries. The administrator of the decedent's health care plan, which was offered through his federal employer, sued the estate in federal court, seeking reimbursement of funds it had paid under the health care plan for the decedent's medical care. The United States, as amicus, argued ...

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