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SEILER v. UNITED STATES

March 13, 1987

Robert T. Seiler, et al., Plaintiffs,
v.
The United States of America, Defendant



The opinion of the court was delivered by: GREENE

 JUDGE HAROLD H. GREENE

 Plaintiff Robert T. Seiler, a commercial airline pilot, along with his wife Martha Seiler, brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. Plaintiffs challenge the refusal of the Federal Aviation Administration (FAA) to grant Mr. Seiler a first-class medical certificate between June 11, 1981 and March 1, 1983, causing him to suffer a loss of his livelihood, as well as mental anguish and causing his wife the loss of services and companionship. Mr. and Mrs. Seiler allege that the FAA illegally failed to comply with an order of the National Transportation Safety Board (NTSB) requiring the issuance of such a certificate, and they seek $275,000 and $50,000, respectively, in damages. Defendant has moved for summary judgment on the grounds, first, that this Court may not review these claims under the Act, and second, that Mr. Seiler was himself solely responsible for the delay in acquiring the certificate. For the reasons stated below, the motion is granted, and this case is dismissed.

 I

 The material facts are undisputed. In February 1979, plaintiff Robert Seiler suffered a seizure while piloting an Eastern Caribbean Airlines plane. Two months later, he underwent surgery for the removal of a large brain tumor; this surgery is known as a "bifrontal craniotomy." On August 24, 1979, plaintiff applied for a first-class medical certificate from the FAA. A first-class certificate is necessary to operate a commercial aircraft that carries passengers. The certificate is only valid for six months. *fn1" An Aviation Medical Examiner *fn2" promptly denied the certificate and referred the application to the Federal Air Surgeon. That official found that plaintiff might experience additional seizures within the next two years, and he denied the certificate on October 31, 1979. *fn3"

 Plaintiff appealed this denial to the NTSB. After a hearing, an administrative law judge reversed the FAA's ruling and ordered that:

 
the Federal Air Surgeon on behalf of the Administrator shall issue to the Petitioner an appropriate airman medical certificate on the making of an appropriate application by the Petitioner and barring any other physical disability or disqualification upon such application.

 See In re Seiler, No. SM-2512 (NTSB Feb. 12, 1981) (emphasis added). The FAA appealed this decision to the full Board, which affirmed the ALJ's decision. The Board ordered that "a first-class medical certificate be issued to the petitioner upon his reapplication, provided he is otherwise and fully qualified therefor." The Board denied the FAA's petition for reconsideration on June 5, 1981.

 Pursuant to the Board's order, plaintiff again applied for a first-class medical certificate on June 11, 1981. The American Medical Examiner, pursuant to regulations, forwarded the application to the Federal Air Surgeon, *fn4" who informed plaintiff that he must submit a current neurological evaluation, a CAT scan, and an EEG with "actual tracing." Plaintiff refused to comply with these requests, pointing out that these tests were "essentially the same tests I underwent to prove my qualifications before the NTSB a year earlier." *fn5" Meanwhile, plaintiff underwent further surgery for an infection at the site of the previous tumor. He underwent a CAT scan and decided to submit the report to the FAA, but did not submit an EEG with actual tracing or a neurological evaluation.

 Because the CAT scan showed an abnormality, the Federal Air Surgeon asked for a new CAT scan. Plaintiff complied with this request, but by June 23, 1982, he still had not submitted the neurological evaluation and full EKG. Nevertheless, plaintiff was informed in writing by the Manager of the Aeromedical Standards Division of the Office of Aviation Medicine on September 22, 1982, that "certification is likely if our review of the requested EEG tracing confirms the favorable report." *fn6"

 On February 7, 1983, plaintiff submitted the remaining documents. Ten days later, the Federal Air Surgeon informed him in writing that the results were acceptable, and that he would qualify for a first-class certificate. Plaintiff reapplied on March 3, 1983, and was issued his certificate the same day. *fn7"

 II

 In order to decide whether defendant is entitled to judgment as a matter of law, the Court need only interpret the meaning of the ALJ's order and its affirmance by the NTSB, within the context of FAA safety regulations. As already indicated, the ALJ required the Federal Air Surgeon to issue a first-class certificate to plaintiff "on the making of an appropriate application," and the NTSB affirmed this decision by ordering issuance "upon [plaintiff's] reapplication, provided he is otherwise and fully qualified therefor." *fn8" The NTSB's order was consistent with FAA regulations, which require the agency to issue a certificate to any properly qualified and physically able applicant. As the Court of Appeals for this Circuit has recognized, the FAA has no choice in the matter; "if an applicant meets the medical standards, the FAA must certify him." Harr v. United States, 227 U.S. App. D.C. 195, 705 F.2d 500, 503 (D.C. Cir. 1983) (emphasis added). *fn9"

 Plaintiff seems to believe that he need only have presented himself to an FAA medical examiner, at any time after the March 10 order, in order to receive his certificate automatically. The government, on the other hand, argues that, like any other applicant for a first-class license, plaintiff still had to provide current information on his physical condition before a certificate would issue; without such information, plaintiff's application could ...


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