Pucciariello v. United States

In the United States Court of Federal Claims
No. 13-590 C

(Filed June 2, 2014)

*********************
Contract; Fifth Amendment
CARMINE J. PUCCIARIELLO, *
Taking; Preemption of Tucker
*
Act Jurisdiction by 49 U.S.C.
Plaintiff, *
§ 46110 (2006); Jurisdictional
*
Effect of Failure to Concede
v. *
Lawfulness of Government
*
“Taking”; Failure to State a
THE UNITED STATES, *
Claim for Money Damages;
*
No Jurisdiction to Award
Defendant. *
Equitable Relief under 28
*********************
U.S.C. § 1491(a)(2) (2012).

Michael Moulis, Fort Lauderdale, FL, for plaintiff.

Russell J. Upton, United States Department of Justice, with whom were
Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and
Reginald T. Blades, Jr., Assistant Director, Washington, DC, for defendant.
Bradley J. Preamble, Office of the Chief Counsel, Federal Aviation
Administration, Washington, DC, of counsel.

_________________________

OPINION
_________________________

BUSH, Senior Judge.

Now pending before the court is defendant’s motion to dismiss pursuant to
Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal
Claims (RCFC). That motion has been fully briefed and is ripe for decision. Oral
argument was neither requested by the parties nor deemed necessary by the court.
For the following reasons, defendant’s motion to dismiss is granted.
 BACKGROUND1

In this lawsuit, Plaintiff Carmine J. Pucciariello2 seeks damages, as well as
injunctive and declaratory relief, based upon the Federal Aviation Administration’s
(FAA) decision to terminate plaintiff’s appointment as a designated airworthiness
representative (DAR). Plaintiff alleges that the FAA, in terminating plaintiff’s
appointment, breached a settlement agreement pursuant to which the FAA had
promised to appoint plaintiff as a DAR. In addition, plaintiff alleges that the
FAA’s termination decision resulted in an uncompensated taking in violation of the
Fifth Amendment to the United States Constitution.

I. Designated Airworthiness Representatives

Congress has charged the FAA with the responsibility to prescribe air safety
standards, including certification requirements for aircraft, pilots, airports, and
airlines, in order to “promote safe flight of civil aircraft in air commerce.” 49
U.S.C. § 44701(a) (2006). To that end, Congress has authorized the FAA to
“delegate to a qualified private person” the authority to issue certificates
identifying aircraft as airworthy, and to conduct inspections, testing, and
examinations necessary to issue such certificates. 49 U.S.C. § 44702(d)(1) (2006).
Pursuant to its statutory authority, the FAA Administrator has appointed a group of
1
/ The facts recounted in this opinion are taken from plaintiff’s complaint and the parties’
submissions in connection with defendant’s motion to dismiss, including the attachments to
plaintiff’s complaint as well as the order dismissing Mr. Pucciariello’s previous lawsuit in the
United States District Court for the Southern District of Florida, which defendant attaches to its
motion to dismiss. See Compl. Attachs. A-B; Def.’s Mot. App. at A18-A19 (Order of Apr. 8,
2013, Pucciariello v. LaHood, No. 12-61675 (S.D. Fla)). In addition, the court has considered
Mr. Pucciariello’s district court complaint filed August 27, 2012. As explained infra, the court
may consider these documents without converting defendant’s motion to dismiss for failure to
state a claim pursuant to RCFC 12(b)(6) into a motion for summary judgment pursuant to RCFC
56. Except where otherwise noted, the facts recounted in this opinion are undisputed.
2
/ Despite the apparent typographical error in the caption of plaintiff’s complaint, it
appears from the record and the pleadings that the proper spelling of plaintiff’s first name is
“Carmine” rather than “Camine.” See Compl. Attachs. A-B; Def.’s Mot. App. at A18; Pl.’s
Resp. at 1, 5. Therefore, the court adopts the former spelling, as that is the spelling used by the
parties throughout the record and their pleadings.

2
private individuals, called designated airworthiness representatives (DARs), to
perform these tasks. See 14 C.F.R. § 183.33 (2013). DAR appointments are for
one to three years, and are renewable at the discretion of the Administrator. See
FAA Order 8100.8D, ¶ 1414 (Oct. 28, 2011), available at http://www.faa.gov/
regulations_policies/orders_notices/index.cfm/go/document.information/document
ID/1019601.3

Under 49 U.S.C. § 44702, the FAA Administrator may rescind, or choose
not to renew, a DAR appointment “at any time for any reason the Administrator
considers appropriate.” 49 U.S.C. § 44702(d)(2). The FAA, in its implementing
regulations, has delineated certain “appropriate” reasons justifying termination or
nonrenewal of a DAR appointment:

(1) Upon the written request of the representative;
(2) Upon the written request of the employer in any case
in which the recommendation of the employer is required
for the designation;
(3) Upon the representative being separated from the
employment of the employer who recommended him or
her for certification;
(4) Upon a finding by the Administrator that the
representative has not properly performed his or her
duties under the designation;
(5) Upon the assistance of the representative being no
longer needed by the Administrator; or
(6) For any reason the Administrator considers
appropriate.

14 C.F.R. § 183.15(b) (2013); see also FAA Order 8100.8D, ¶ 1105(b) (stating that
“[d]esignation is a privilege that conveys responsibilities, but does not imply

3
/ The FAA promulgated Order 8100.8D on October 28, 2011 to establish “procedures to
be used by the Aircraft Certification Service (AIR) and Flight Standards Service (AFS) for
managing the FAA’s representatives of the Administrator (designee) program.” FAA Order
8100.8D, ¶ 100. FAA Order 8100.8D is directed to “[a]ll FAA employees who oversee private
persons acting as representatives of the Administrator and those persons acting as representatives
of the Administrator for the purpose of aircraft certification.” Id. ¶ 101.

3
employment or other rights unrelated to FAA needs,” and incorporating the bases
for termination of a DAR appointment as set forth in 14 C.F.R. § 183.15(b)),
¶ 1108(a) (stating that “[a] designation is a privilege, not a right,” and “therefore[]
the Administrator has the authority to terminate a delegation for any reason”),
¶ 1414 (stating that “renewal of any designee appointment is at the option and sole
discretion of the FAA”).

The FAA, however, has developed internal procedures to guide the
nonrenewal or termination of DAR appointments. See FAA Order 8100.8D,
¶¶ 1100-1110, 1414-1415. Of particular relevance to this dispute, FAA Order
8100.8D sets forth the procedures for administrative appeals of decisions to
terminate a DAR appointment, and provides that a DAR, upon timely appeal, may
request a meeting with the appeal panel and the FAA inspector or project engineer
who made the recommendation to terminate the DAR appointment. See id.
¶ 1108(b)(2).

II. Factual Background

In December 1998, Mr. Pucciariello entered into a settlement agreement
with the FAA to resolve a discrimination complaint filed with the Equal
Employment Opportunity Commission (EEOC).4 Compl. ¶ 7 & Attach. A at 1-3.5

4
/ In his complaint, plaintiff alleges that he and the FAA entered into the settlement
agreement “[o]n or about December 1999.” Compl. ¶ 7 (emphasis added). The reference to
“1999” appears to be a typographical error, however, as the agreement itself indicates that it was
signed by Mr. Pucciariello on December 23, 1998. See id. Attach. A at 3.
5
/ Plaintiff’s complaint, as originally filed on August 19, 2013, referenced and purported
to include two attachments (Attachment A and Attachment B). Compl. ¶¶ 7-8; see Def.’s Mot at
8 (stating that plaintiff’s complaint “includes two attachments”). However, the court, in an order
dated March 31, 2014, noted that the docket in this matter did not reflect that plaintiff actually
filed any attachments with his complaint. The court therefore ordered plaintiff to file
Attachment A and Attachment B, as referenced in the complaint, and to certify whether those
attachments were identical to pages A6 through A17 of the appendix to defendant’s motion to
dismiss, which the government described as Attachment A and Attachment B to the complaint.
On April 3, 2014, in compliance with the court’s March 31, 2014 order, plaintiff filed a notice
indicating that “there are no apparent differences” between the documents submitted by
defendant and the attachments referenced in plaintiff’s complaint. See Notice of Apr. 3, 2014, at
(continued . . .)

4
Under the agreement, Mr. Pucciariello agreed to retire from employment with the
FAA on or before February 28, 1999, in exchange for the FAA appointing him as a
DAR. Id. ¶ 7 & Attach. A at 1-2. In addition, the agreement stated that it “in no
manner denies [Mr. Pucciariello] the right of renewal of [his] DAR [appointment]
provided he otherwise satisfies all regulatory requirements in place or hereafter
added to said regulatory requirements, and is otherwise qualified to be the holder
of a DAR.” Id. Attach. A at 2-3. In accordance with the agreement, Mr.
Pucciariello retired on or before February 28, 1999, and the FAA appointed him as
a DAR. Id. ¶ 8 & Attach. A at 4.

Several years later, on January 25, 2012, the FAA terminated Mr.
Pucciariello’s DAR appointment after finding that he had not properly performed
his duties as a DAR. See Compl. ¶ 15 & Attach. B at 1 (January 25, 2012 letter
stating that Mr. Pucciariello’s DAR appointment was “terminated pursuant to 14
C.F.R. § 183.15(b)(4)” based upon the FAA’s determination that Mr. Pucciariello
had failed to adequately perform his duties as a DAR). The events leading to the
FAA’s termination of plaintiff’s DAR appointment began on January 8, 2012,
when Mr. Pucciariello contacted the South Florida Flight Standards District Office
(FSDO) by e-mail with questions relating to the airworthiness certification of a
helicopter scheduled to be exported to Brazil. Id. Attach. B at 1. As a result of
additional e-mail correspondence with Mr. Pucciariello over the next two days,
officials at the South Florida FSDO became concerned about Mr. Pucciariello’s
competence to handle his DAR functions. Id. On January 10, 2012, Mr.
Pucciariello was instructed to cease all export certification activity until a meeting
could be held to assess his capabilities and to determine if remedial training was
necessary. Id. ¶ 14 & Attach. B. at 1.

The meeting between FAA personnel and Mr. Pucciariello took place on
January 18, 2012. Compl. Attach. B at 1. According to FAA records, Mr.
Pucciariello’s responses to various queries of FAA personnel during the meeting
revealed that plaintiff lacked the requisite knowledge to properly perform his DAR
functions. Id. at 1-2. Specifically, FAA personnel found the documentation
provided by plaintiff to be out-of-date or otherwise not in compliance with FAA
regulatory guidance. Id. at 1. In addition, although Mr. Pucciariello represented

1. Plaintiff’s notice also included copies of Attachment A and Attachment B – which the court
refers to as “Compl. Attach. A” and “Compl. Attach. B.”

5
during the meeting that he had inspected the helicopter when it was fully
assembled, as required by FAA regulations, further investigation by FAA
personnel revealed that the helicopter was, in fact, disassembled when Mr.
Pucciariello performed his inspection. Id. at 2.

Based on these events, on January 25, 2012, Sergio Lopez, manager of the
South Florida FSDO, advised Mr. Pucciariello by letter that his DAR appointment
had been terminated. Compl. ¶ 15 & Attach. B at 1-2. Mr. Lopez’s letter set forth
the bases for termination and also advised Mr. Pucciariello of his administrative
appeal rights. Id. Attach. B at 2 (advising Mr. Pucciariello that he “may submit a
request for appeal in writing to this office no later than 14 calendar-days from the
date of receipt of this letter”).

III. Procedural History

Mr. Pucciariello submitted a timely administrative appeal on February 6,
2012. Compl. ¶ 16. Thereafter, the FAA Southern Region Office convened an
appeal panel to review plaintiff’s termination. Id. ¶ 17 & Attach. B at 3. Upon
reviewing the reasons for termination provided by the South Florida FSDO, as well
as Mr. Pucciariello’s appeal submission, the appeal panel upheld the decision to
terminate plaintiff’s DAR appointment. Id. By letter dated March 29, 2012,
Thomas A. Winston, division manager for the FAA Southern Region Office,
notified Mr. Pucciariello of the appeal panel’s “final decision” to uphold the
termination of his DAR appointment. Id. Attach. B at 3.

Nearly five months later, on August 27, 2012, plaintiff filed a complaint in
the United States District Court for the Southern District of Florida, alleging
violations of due process arising out of his DAR termination. Pucciariello v.
LaHood, No. 12-61675 (S.D. Fla); see Def.’s Mot. App. at A18. The government
filed a motion to dismiss for lack of subject matter jurisdiction, arguing that,
pursuant to 49 U.S.C. § 46110 (2006), the United States courts of appeals have
exclusive jurisdiction to review the FAA’s termination of Mr. Pucciariello’s DAR
appointment. The district court agreed, holding that Mr. Pucciariello’s due process
claims in that forum amounted to a “challeng[e] [of] the FAA’s final decision to
terminate his DAR status,” over which the United States courts of appeals
possessed exclusive jurisdiction. Def.’s Mot. App. at A18-A19 (citing Doe v. Fed.
Aviation Admin., 432 F.3d 1259, 1263 (11th Cir. 2005)). Accordingly, by order

6
dated April 8, 2013, the district court dismissed Mr. Pucciariello’s complaint for
lack of subject matter jurisdiction without leave to amend. Id. In addition, the
district court dismissed Mr. Pucciariello’s complaint “by default” and “on the
merits” because Mr. Pucciariello never responded to the government’s motion to
dismiss. Id. at A18.

On August 19, 2013, Mr. Pucciariello filed a complaint in this court, seeking
damages and injunctive and declaratory relief based upon the FAA’s decision to
terminate his DAR appointment.6 Plaintiff characterizes his current challenge to
the FAA’s termination decision as “an action for 5th Amendment taking of
property without just compensation, and without complying with procedural due
process and written procedural rules and regulations designed to protect the
Plaintiff.” Compl. ¶ 1. Additionally, plaintiff asserts that his current claims “are
based on [the] Government’s breach of an explicit written settlement agreement
where Plaintiff agreed to retire and the FAA agreed to assign him as an FAA
Designated Airworthiness Representative (DAR).” Id.

Plaintiff’s complaint contains two counts. In the first count, plaintiff alleges
that the FAA breached the terms of the December 1998 settlement agreement by
terminating Mr. Pucciariello’s DAR appointment “without due process or cause,”
and in an “arbitrary” and “capricious” manner. Compl. ¶¶ 9-10. In the second
count, which plaintiff styles as a claim for “unjust taking without due process,”
plaintiff alleges that he possesses a property interest in his DAR appointment by
virtue of the settlement agreement, and that the FAA deprived him of that property
interest without adhering to the agency’s internal procedures for appeals from
termination decisions. Id. ¶¶ 11-18. Specifically, plaintiff asserts that the agency
failed to honor Mr. Pucciariello’s request for a meeting with the FAA appeal panel,
as provided for by FAA Order 8100.8D, ¶ 1108(b)(2). See id. ¶¶ 16-17.

As compensation for the FAA’s alleged wrongdoing, plaintiff requests
damages for lost past and future earnings, as well as damages for “loss of earning
capacity” and “loss of reputation in the aviation industry.” Compl. ¶ 19; see also

6
/ Plaintiff attempted to file an amended complaint with the court on August 27, 2013.
That document, however, was returned unfiled because it contained various defects in violation
of this court’s rules. See Order of Aug. 29, 2013. Plaintiff never attempted to file another
amended complaint, and therefore his original complaint remains the active pleading in this case.

7
id. ¶¶ 2, 20-21. In addition to monetary damages, plaintiff requests “declaratory
relief concluding that the United States Government removed him as a DAR in
violation of its written agreement and in violation of Plaintiff’s procedural due
process rights,” id. ¶ 2, as well as “[i]njunctive relief enjoining the FAA from
denying Plaintiff his right to a meeting to appeal [the] termination of his [DAR]
designation,” id. ¶ 22.

On November 18, 2013, the government filed a motion to dismiss plaintiff’s
complaint pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). Defendant’s motion
presents four jurisdictional arguments. First, the government contends that
plaintiff’s claims amount to a challenge to his DAR termination, and that the
United States courts of appeals have exclusive jurisdiction to review such
challenges pursuant to 49 U.S.C. § 46110. See Def.’s Mot. at 9-10; Def.’s Reply at
8. Second, defendant argues that this court lacks jurisdiction to consider Mr.
Pucciariello’s breach of contract claim because plaintiff fails to identify a provision
of the settlement agreement that mandates the payment of money in the event of
the government’s breach. See Def.’s Mot. at 13-14 (citing, e.g., Holmes v. United
States, 657 F.3d 1303, 1314-15 (Fed. Cir. 2011)). Third, defendant argues that
plaintiff has failed to establish jurisdiction over his breach of contract claim
because the complaint does not identify the substantive provisions of the settlement
agreement upon which Mr. Pucciariello relies, as required by RCFC 9(k). See
Def.’s Mot. at 14 (citing Kissi v. United States, 102 Fed. Cl. 31, 35 (2011), and
Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 715 (2010)).
Finally, defendant argues that this court lacks jurisdiction to consider plaintiff’s
claims for equitable relief because such claims are not tied to a money judgment.
See Def.’s Mot. at 14-16 (citing, e.g., James v. Caldera, 159 F.3d 573, 580 (Fed.
Cir. 1998)).7
7
/ The government raises two additional jurisdictional arguments. First, in its opening
brief, the government argues that plaintiff’s breach of contract claim and takings claim are, in
essence, disguised procedural due process claims over which this court lacks jurisdiction. See
Def.’s Mot. at 10-11 (citations omitted). The government, in its reply brief, withdrew its
contention that plaintiff’s claims are essentially due process claims. See Def.’s Reply at 1 n.1
(stating that plaintiff “clarifies in his response brief that . . . . [h]e is not alleging any form of due
process claim,” and therefore the court “need consider only whether plaintiff’s two claims [i.e.,
his breach of contract claim and takings claim] survive [RCFC] 12(b)(1) and [RCFC 12(b)](6)”).
Despite defendant’s apparent concession that plaintiff does not assert due process claims, the
court notes that certain portions of plaintiff’s complaint may fairly be read as asserting due
(continued . . .)

8
 The government also seeks dismissal of plaintiff’s complaint pursuant to
RCFC 12(b)(6). With respect to plaintiff’s breach of contract claim, defendant
argues that plaintiff has failed to allege sufficient facts from which the court may
reasonably infer that the FAA breached the settlement agreement by terminating
Mr. Pucciariello’s DAR appointment. See Def.’s Mot. at 16-17; Def.’s Reply at 4-
6. With regard to plaintiff’s takings claim, the government contends, first, that
plaintiff has failed to allege facts plausibly suggesting that Mr. Pucciariello has a
cognizable property interest in his DAR appointment that could be the subject of a
valid takings claim under the Fifth Amendment. See Def.’s Mot. at 18-19; Def.’s
Reply at 6. In addition, defendant argues that, even if the court were to conclude
that plaintiff sufficiently pleaded a cognizable property interest in his DAR
appointment, plaintiff’s takings claim should nevertheless be dismissed because it
is premised upon allegedly unlawful governmental action.8 See Def.’s Mot. at 19-
20; Def.’s Reply at 6.

process claims. See Compl. ¶¶ 1-2, 4-5, 9, 12, 17-18. In addition, in his response brief, plaintiff
cites several cases addressing the procedural due process protections afforded to federal
employees. See Pl.’s Resp. at 13 (citing Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465,
474-75 (9th Cir. 1991), Polos v. United States, 621 F.2d 385, 389-90 (Ct. Cl. 1980), and Terry v.
United States, 499 F.2d 695, 702 (Ct. Cl. 1974)). To the extent that plaintiff’s complaint may be
construed as asserting due process claims, those claims must be dismissed because, as the
government correctly notes, due process claims are beyond this court’s Tucker Act jurisdiction.
Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing LeBlanc v. United States, 50
F.3d 1025, 1028 (Fed. Cir. 1995)); see Def.’s Mot. at 11.

Second, in its reply brief, defendant contends that plaintiff has failed to establish this
court’s jurisdiction over his breach of contract claim and takings claim because Mr. Pucciariello,
by his own admission, never presented those claims at the administrative level. See Def.’s Reply
at 7-8 (citing Air Line Pilots Ass’n v. Fed. Aviation Admin., 454 F.2d 1052, 1055 (D.C. Cir.
1971), and Pl.’s Resp. at 8). This argument, presented for the first time in defendant’s reply
brief, is not properly before the court and therefore will not be considered. See, e.g., Survival
Sys., USA, Inc. v. United States, 102 Fed. Cl. 255, 262 (2011) (“A party’s reply brief ‘repl[ies] to
arguments made in the response brief’; it does not provide ‘the moving party with a new
opportunity to present yet another issue for the court’s consideration.’” (quoting Novosteel SA v.
United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002))).
8
/ As additional bases for dismissal pursuant to RCFC 12(b)(6), the government
advances several arguments based upon the doctrines of res judicata, or claim preclusion, and
collateral estoppel, or issue preclusion. See Def.’s Mot. at 11-12; Def.’s Reply at 7. Because, as
(continued . . .)

9
 DISCUSSION

I. Standards of Review

A. RCFC 12(b)(1)

The relevant issue in a motion to dismiss under RCFC 12(b)(1) “‘is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.’” Patton v. United States, 64 Fed. Cl. 768,
773 (2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on
other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In considering the
issue of subject matter jurisdiction, this court must presume all undisputed factual
allegations to be true and construe all reasonable inferences in favor of the
plaintiff. Scheuer, 416 U.S. at 236; Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 747 (Fed. Cir. 1988) (citations omitted).

Where the court’s jurisdiction is challenged, the plaintiff bears the burden of
establishing subject matter jurisdiction by a preponderance of the evidence and by
presenting competent proof. Alder Terrace, Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298
U.S. 178, 189 (1936)); Reynolds, 846 F.2d at 748 (citations omitted). If the
plaintiff fails to meet his burden, and jurisdiction is therefore found to be lacking,
the court must dismiss the action. RCFC 12(h)(3).

In considering a motion to dismiss for lack of subject matter jurisdiction
which challenges the truth of jurisdictional facts alleged in the complaint, the court
may make findings of fact pertinent to its jurisdiction. Ferreiro v. United States,
350 F.3d 1318, 1324 (Fed. Cir. 2003) (citing Moyer v. United States, 190 F.3d
1314, 1318 (Fed. Cir. 1999), and Reynolds, 846 F.2d at 747); Rocovich v. United
States, 933 F.2d 991, 993 (Fed. Cir. 1991) (“In determining whether a motion to
dismiss should be granted, the Claims Court may find it necessary to inquire into
jurisdictional facts that are disputed.”). In making findings of fact pertinent to its
jurisdiction, the court is not restricted to the face of the pleadings, but may review

explained infra, the court finds that plaintiff’s complaint must be dismissed pursuant to RCFC
12(b)(6) on other grounds, the court does not reach defendant’s claim preclusion and issue
preclusion arguments.

10
evidence extrinsic to the pleadings, including declarations or affidavits. Rocovich,
933 F.2d at 994 (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947), and
Reynolds, 846 F.2d at 747).

B. RCFC 12(b)(6)

It is well-settled that a complaint should be dismissed for failure to state a
claim under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle
him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir.
2002). To survive a motion to dismiss under RCFC 12(b)(6), “a complaint must
allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of
entitlement to relief.” Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir.
2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). In order to
meet the requirement of facial plausibility, the plaintiff must plead “factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). Determining whether a complaint states a plausible
claim for relief is a “context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679 (citation omitted).

When considering a motion to dismiss under RCFC 12(b)(6), the court is
bound to accept the well-pleaded factual allegations of the complaint as true.
Iqbal, 556 U.S. at 678. However, the court is not bound to accept as true mere
“‘labels and conclusions’” or “‘a formulaic recitation of the elements of a cause of
action.’” Id. (quoting Twombly, 550 U.S. at 555).

Although the court primarily examines the allegations in the complaint when
considering a motion to dismiss pursuant to RCFC 12(b)(6), it may also consider
“‘matters incorporated by reference or integral to the claim, items subject to
judicial notice, [and] matters of public record.’” A&D Auto Sales, Inc. v. United
States, No. 2013-5019, 2014 WL 1345499, at *1 (Fed. Cir. Apr. 7, 2014) (quoting
5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1357 (3d ed. 2004)); see also DeKalb Cnty. v. United States, 108 Fed. Cl. 681, 692
(2013), appeal dismissed, No. 13-5074 (Fed. Cir. Sept. 26, 2013); Toon v. United
States, 96 Fed. Cl. 288, 298-99 (2010); Stocum v. United States, 85 Fed. Cl. 217,
221 (2008); Kawa v. United States, 77 Fed. Cl. 294, 306 (2007).

11
 Plaintiff attaches to his complaint several documents, which include the
settlement agreement at issue as well as correspondence between Mr. Pucciariello
and FAA personnel regarding the FAA’s decision to terminate Mr. Pucciariello’s
DAR appointment. See Compl. Attachs. A-B. Those documents, which are
incorporated by reference into the complaint and are integral to plaintiff’s claims,
may properly be considered by the court without converting defendant’s motion to
dismiss into one for summary judgment. E.g., Toon, 96 Fed. Cl. at 298-99.
Likewise, the court may consider public court documents filed in Mr.
Pucciariello’s district court action, including Mr. Pucciariello’s complaint and the
district court’s order dismissing that lawsuit. E.g., DeKalb, 108 Fed. Cl. at 692.

II. Analysis

A. The Court Lacks Subject Matter Jurisdiction over Plaintiff’s
Claims

Pursuant to the Tucker Act, the United States Court of Federal Claims has
jurisdiction “to render judgment upon any claim against the United States founded
either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28
U.S.C. § 1491(a)(1) (2012). The Tucker Act, however, “does not create any
substantive right enforceable against the United States for money damages” but
“merely confers jurisdiction . . . whenever the substantive right exists.” United
States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). A plaintiff coming
before this court, therefore, must identify a separate provision of law conferring a
substantive right for money damages against the United States. Id.; see also Fisher
v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (citing United States v.
Mitchell, 463 U.S. 206, 216 (1983), and Testan, 424 U.S. at 398); Todd v. United
States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (citing Testan, 424 U.S. at 398). In
other words, the source underlying the cause of action must be money-mandating,
in that it “‘can fairly be interpreted as mandating compensation for damages
sustained as a result of the breach of the duties [it] impose[s].” Fisher v. United
States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (quoting Mitchell, 463 U.S. at 217)).

To establish Tucker Act jurisdiction, a plaintiff need only make a
“nonfrivolous allegation that it is within the class of plaintiffs entitled to recover

12
under the money-mandating source” identified in the complaint. Jan’s Helicopter
Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1309 (Fed. Cir. 2008). “There
is no further jurisdictional requirement that the court determine whether the
additional allegations of the complaint state a nonfrivolous claim on the merits.”
Id.

Here, the alleged money-mandating sources of law identified by Mr.
Pucciariello are: (1) the Takings Clause of the Fifth Amendment; and (2) his
settlement agreement with the FAA.9 See Compl. ¶¶ 1-3, 6, 9-11; Pl.’s Resp. at 9-
12. As set forth below, the court concludes that although both sources can fairly be
interpreted as mandating the payment of money, and therefore would normally be
sufficient to establish Tucker Act jurisdiction, neither source provides a basis for
Tucker Act jurisdiction in this case because a separate statutory provision – 49
U.S.C. § 46110 – bars this court from exercising jurisdiction over plaintiff’s
claims.

1. Plaintiff’s Fifth Amendment Takings Claim

The first money-mandating source of law alleged by plaintiff is the Takings
Clause of the Fifth Amendment. “It is undisputed that the Takings Clause of the
Fifth Amendment is a money-mandating source for purposes of Tucker Act
jurisdiction.” Jan’s Helicopter, 525 F.3d at 1309 (citing Moden v. United States,
404 F.3d 1335, 1341 (Fed. Cir. 2005)). Because plaintiff, having alleged a taking
of his property by the government, is within the class of plaintiffs entitled to
recovery if a Fifth Amendment takings claim is established, the court would
normally have Tucker Act jurisdiction over plaintiff’s takings claim. See id.;
Compl. ¶¶ 1, 11-18.

2. Plaintiff’s Breach of Settlement Agreement Claim

The second alleged money-mandating source of law identified in plaintiff’s
complaint is his settlement agreement, which plaintiff alleges was breached by the

9
/ Also, as previously noted, plaintiff appears to rely upon the Fifth Amendment Due
Process Clause. See Compl. ¶¶ 1-2, 4-5, 9, 12, 17-18; Pl.’s Resp. at 13. However, as explained
supra, the Fifth Amendment Due Process Clause is not a sufficient basis for Tucker Act
jurisdiction because it does not mandate payment by the government. See supra note 7.

13
FAA when the agency terminated his DAR appointment. See Compl. ¶¶ 1-2, 6, 9-
10. As set forth below, the court concludes that the settlement agreement can
fairly be interpreted as mandating the payment of money, and thus would normally
be sufficient to confer Tucker Act jurisdiction over plaintiff’s breach of contract
claim.

The term “contract,” for purposes of the Tucker Act’s grant of jurisdiction
over claims based “upon any express or implied contract with the United States,”
28 U.S.C. § 1491(a)(1), includes settlement agreements, see, e.g., Lutz v. U.S.
Postal Serv., 485 F.3d 1377, 1381 (Fed. Cir. 2007); Greco v. Dep’t of the Army,
852 F.2d 558, 560 (Fed. Cir. 1988) (“It is axiomatic that a settlement agreement is
a contract.”). When the substantive source of law identified as the basis for Tucker
Act jurisdiction is an express or implied contract with the United States, the
money-mandating requirement for Tucker Act jurisdiction ordinarily is satisfied.
See Bank of Guam v. United States, 578 F.3d 1318, 1325 (Fed. Cir. 2009) (“A well
pleaded allegation of a breach of either an express or implied-in-fact contract is
sufficient to overcome challenges to jurisdiction.” (citing Trauma Serv. Grp. v.
United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997))). That is because monetary
damages “are always the default remedy for breach of contract.” United States v.
Winstar Corp., 518 U.S. 839, 885 (1996) (citations omitted); see Holmes, 657 F.3d
at 1314 (noting that “‘[i]n the area of government contracts, as with private
agreements, there is a presumption in the civil context that a damages remedy will
be available upon the breach of an agreement’” (quoting Sanders v. United States,
252 F.3d 1329, 1334 (Fed. Cir. 2001))). As a general matter, therefore, a suit
seeking money damages for the alleged breach of a settlement agreement with the
government falls within this court’s jurisdiction under the Tucker Act.

Despite this general pronouncement, however, it is well-settled that “[t]he
government’s consent to suit under the Tucker Act does not extend to every
contract.” Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343
(Fed. Cir. 2008) (citations omitted). This court would not, for example, have
Tucker Act jurisdiction over a claim alleging the breach of a settlement agreement
that expressly provides that damages are not an available remedy for its breach.
See Holmes, 657 F.3d at 1314 (noting that “[a] contract expressly disavowing
money damages would not give rise to Tucker Act jurisdiction”). Nor would
Tucker Act jurisdiction extend to a claim for breach of an agreement providing for
“purely nonmonetary relief.” Id. at 1315.

14
 In Holmes, the United States Court of Appeals for the Federal Circuit
resolved a split of authority in this court over whether Tucker Act jurisdiction
extends to a claim alleging breach of an agreement to settle an action under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2012). The
majority view at the time was that the Court of Federal Claims lacked jurisdiction
over such claims because Title VII established an integrated and comprehensive
scheme providing for exclusive review of Title VII actions in district courts. See
Holmes, 657 F.3d at 1311 (citing cases). Rejecting that view, the Federal Circuit
in Holmes held that a suit against the government alleging breach of a settlement
agreement is fundamentally a suit to enforce a contract and therefore within the
reach of this court’s Tucker Act jurisdiction. Id. at 1312.

At the same time, however, the Federal Circuit in Holmes cautioned that the
alleged breach of a settlement agreement does not necessarily give rise to Tucker
Act jurisdiction. 657 F.3d at 1315. Due to the particular nature of Title VII
settlement agreements, which the Federal Circuit noted “could involve purely
nonmonetary relief – for example, a transfer from one agency office to another,”
the court held that any plaintiff seeking damages under such an agreement must
establish that the agreement could “fairly be interpreted as contemplating money
damages in the event of breach.” Id.

Applying that standard to the Title VII settlement agreements at issue in
Holmes, the Federal Circuit concluded that the plaintiff in Holmes had
demonstrated that the agreements in that case could fairly be interpreted as
contemplating money damages in the event of breach, and the Federal Circuit
therefore reversed this court’s dismissal of the complaint for lack of jurisdiction.
See id. at 1315-16. The plaintiff in Holmes alleged that the Department of the
Navy (Navy) had breached two agreements settling Title VII employment actions.
Under the terms of the settlement agreements, the Navy agreed to expunge a
suspension letter from Mr. Holmes’ personnel file and to document that he had
resigned for personal reasons. Id. at 1315. The Navy also agreed to provide Mr.
Holmes with a “neutral reference” in response to inquiries from future employers.
Id. at 1316. Based on those terms, which the Federal Circuit found to “inherently
relate to monetary compensation through relationship to . . . future employment,”
the court held that the settlement agreements in Holmes could fairly be interpreted
as mandating the payment of money in the event of the government’s breach. Id.

15
The court also noted that “there is no language in the agreements indicating that
the parties did not intend for money damages to be available in the event of
breach.” Id.

In Cunningham v. United States, No. 2013-5055, 2014 WL 1377792 (Fed.
Cir. Apr. 9, 2014), the Federal Circuit, in a precedential opinion, expanded the
jurisdictional holding of Holmes to a “substantially similar” claim for breach of an
agreement settling the plaintiff’s discrimination claim arising under the Civil
Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (codified
as amended in scattered sections of Title 5 of the United States Code). See 2014
WL 1377792, at *5. The settlement agreement at issue in Cunningham, similar to
the agreement in Holmes, limited what information the Office of Personnel
Management (OPM) could disclose regarding the circumstances of Mr.
Cunningham’s departure from employment with OPM. Id. The agreement also
required OPM to remove Mr. Cunningham’s termination letter from his personnel
file. Id. Based on those similarities to the settlement agreements in Holmes, the
Federal Circuit held that the agreement in Cunningham “‘could fairly be
interpreted as contemplating money damages in the event of a breach’” because the
agreement inherently related to monetary compensation through relationship to Mr.
Cunningham’s future employment. Id. (quoting Holmes, 657 F.3d at 1315).

Citing Holmes, the government in the present case contends that plaintiff has
failed to establish Tucker Act jurisdiction over his breach of contract claim
because he has not identified any provision in the settlement agreement that
mandates the payment of money in the event of the government’s breach. See
Def.’s Mot. at 12-14 (citing, e.g., Holmes, 657 F.3d at 1314-15); Def.’s Reply at 1-
3. Plaintiff, also relying upon Holmes, responds by noting that money damages are
presumptively available as a remedy for breach of a government contract and, in
any event, the settlement agreement at issue can fairly be interpreted as mandating
the payment of money because it provided for Mr. Pucciariello’s DAR
appointment and therefore contemplated monetary compensation. See Pl.’s Resp.
at 11 (“At least some term of employment was contemplated when the parties
drafted the agreement; accordingly some future compensation was contemplated
by the parties at the time of drafting.”).

The court agrees with plaintiff that Mr. Pucciariello’s EEOC settlement
agreement, like the settlement agreements in Holmes and Cunningham, can fairly

16
be interpreted as contemplating money damages under the standards established by
the Federal Circuit in those cases. Under plaintiff’s agreement, the FAA agreed to
appoint Mr. Pucciariello as a DAR. Compl. Attach. A at 1-2. Although, as noted,
DAR appointments are terminable at the discretion of the FAA Administrator, see
49 U.S.C. § 44702(d)(2); 14 C.F.R. § 183.15(b); FAA Order 8100.8D, ¶¶ 1105(b),
1108(a), 1414, plaintiff is correct that at least “some future compensation was
contemplated by the parties at the time of drafting” of the agreement, see Pl.’s
Resp. at 11. Although DARs are not federal employees, they are paid for their
services by applicants for airworthiness certificates, who may elect to use DARs to
inspect their aircraft at their own cost or choose instead to allow FAA personnel to
inspect their aircraft in accordance with existing FAA practice. See, e.g.,
Charlima, Inc. v. United States, 873 F.2d 1078, 1081 (8th Cir. 1989) (citing
Designated Airworthiness Representatives Final Rule, 48 Fed. Reg. 16176, 16179
(Apr. 14, 1983)). Accordingly, a breach of Mr. Pucciariello’s settlement
agreement with the FAA could give rise to a claim for compensation because the
agreement, like those in Holmes and Cunningham, contemplates at least some
monetary compensation through relationship to Mr. Pucciariello’s future service as
a DAR. See Cunningham, 2014 WL 1377792, at *5; Holmes, 657 F.3d at 1316.
Additionally, like the agreements in Holmes and Cunningham, Mr. Pucciariello’s
settlement agreement does not contain language indicating that monetary damages
are not available. See Cunningham, 2014 WL 1377792, at *5; Holmes, 657 F.3d at
1316.

The government’s attempts to distinguish this case from Holmes and
Cunningham are unavailing. Defendant argues that plaintiff’s settlement
agreement is unlike the agreement in Holmes because it “did not provide a
guarantee of a perpetual DAR appointment,” nor did it specifically require the
payment of any wages to Mr. Pucciariello. Def.’s Mot. at 13; see also Def.’s
Reply at 2-3 (asserting that “the settlement agreement did not guarantee any
amount of wages”). Yet neither did the settlement agreements in Holmes or
Cunningham. The Federal Circuit found the agreements in Holmes and
Cunningham to inherently relate to future compensation not because the
agreements guaranteed any future term of employment or mandated the payment of
wages, but because the agreements placed restrictions on the personnel information
available to Mr. Holmes’ and Mr. Cunningham’s prospective employers, thereby
positively affecting Mr. Holmes’ and Mr. Cunningham’s future employment
prospects. See Cunningham, 2014 WL 1377792, at *5; Holmes, 657 F.3d at 1316.

17
The purpose of such an agreement was not to guarantee future employment or
compensation, but “‘to prevent [the plaintiff] from being denied future
employment based on his record as the [agency] maintained it prior to the
agreement[].’” Cunningham, 2014 WL 1377792, at *5 (quoting Holmes, 657 F.3d
at 1316).

Defendant also contends that plaintiff’s EEOC settlement agreement cannot
fairly be interpreted as contemplating money damages because the standard
remedy for breach of a settlement agreement resolving an employment dispute is
enforcement of the settlement terms or rescission of the settlement agreement and
reinstatement of the underlying action. See Def.’s Mot. at 13-14; Def.’s Reply at
1-2. As support for this argument, the government cites the EEOC regulation at 29
C.F.R. § 1614.504 (2013), which provides that a complainant alleging breach of an
EEOC settlement agreement “may request that the terms of [the] settlement
agreement be specifically implemented or, alternatively, that the complaint be
reinstated for further processing.” 29 C.F.R. § 1614.504(a); see Def.’s Mot. at 13.
However, as the Federal Circuit specifically found in Holmes, 29 C.F.R. §
1614.504(a) does not deprive the Court of Federal Claims of subject matter
jurisdiction over suits seeking damages for an alleged breach of an EEOC
settlement agreement. See Holmes, 657 F.3d at 1316 (“Without diminishing the
force of this regulation, we see no reason for § 1614.504(a) to preclude a suit for
money damages in the event of breach that is separate from, or in addition to, the
relief the regulation provides.”). In subsequent cases, this court has adhered to the
Federal Circuit’s view. See, e.g., Mata v. United States, 107 Fed. Cl. 618, 623
(2012) (holding that a negotiated settlement agreement, which contained language
nearly identical to 29 C.F.R. § 1614.504(a), could fairly be interpreted as
mandating the payment of money under the standard announced in Holmes because
the agreement “does not contain any language limiting the remedies available to
Mr. Mata”).

Defendant also relies, unpersuasively, on dicta in a single footnote in the
Holmes decision in which the Federal Circuit noted that “money damages appear
not to be the routine remedy for the breach of a settlement agreement involving an
employment dispute.” 657 F.3d at 1315 n.8 (citing Harris v. Brownlee, 477 F.3d
1043, 1047 (8th Cir. 2007)); see Def.’s Mot. at 13-14. The government asserts that
this footnote “effectively rebuts” the presumption that a damages remedy will be
available upon the breach of a government settlement agreement. See Def.’s Reply

18
at 2. Defendant’s strained interpretation of this single footnote runs headlong into
the holding of Holmes. Contrary to the government’s reading of Holmes, the
Federal Circuit’s acknowledgement that monetary damages are not the standard
remedy for breach of a settlement agreement resolving an employment dispute is
not dispositive of the issue at bar. Accordingly, the court concludes that Mr.
Pucciariello’s settlement agreement with the FAA can fairly be interpreted as
requiring the payment of money.

3. Preemption of Tucker Act Jurisdiction by 49 U.S.C. § 46110

Unfortunately for plaintiff, although his breach of contract and takings
claims would otherwise be within this court’s Tucker Act jurisdiction, a separate
statutory provision bars jurisdiction. Specifically, defendant asserts that pursuant
to 49 U.S.C. § 46110, “[t]he United States Court of Appeals for the District of
Columbia Circuit, or for the circuit in which Mr. Pucciariello resides, possess[es]
exclusive jurisdiction to review Mr. Pucciariello’s DAR termination and any
related constitutional claims.” Def.’s Mot. at 9; see also id. at 10; Def.’s Reply at
8. The government contends that the FAA’s decision to terminate Mr.
Pucciariello’s DAR appointment was an order subject to 49 U.S.C. § 46110, and
that plaintiff’s sole avenue of relief from that order was to file a petition for review
in a federal court of appeals. See Def.’s Mot. at 9-10; Def.’s Reply at 8. For the
following reasons, the court agrees with defendant.

49 U.S.C. § 46110 provides, in pertinent part, that

a person disclosing a substantial interest in an order
issued by . . . the Administrator of the Federal Aviation
Administration with respect to aviation duties and powers
designated to be carried out by the Administrator[] in
whole or in part under [Title 49, Subtitle VII, Parts A or
B of the United States Code] may apply for review of the
order by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit or
in the court of appeals of the United States for the circuit
in which the person resides or has its principal place of
business.

19
49 U.S.C. § 46110(a). Under 49 U.S.C. § 46110, any petition for review of an
administrative order subject to that section “must be filed not later than 60 days
after the order is issued.” Id. When such a petition is filed with a federal court of
appeals, the court receiving the petition “has exclusive jurisdiction to affirm,
amend, modify, or set aside any part of the order.” Id. § 46110(c).

The court’s analysis of the jurisdictional impact of 49 U.S.C. § 46110 begins
with a determination of whether the FAA’s termination of Mr. Pucciariello’s DAR
appointment falls within the ambit of 49 U.S.C. § 46110. If the answer to that
initial query is “yes,” then the court must determine whether plaintiff may
nevertheless bring his claims before this court notwithstanding the applicability of
49 U.S.C. § 46110.

a. The FAA’s Termination of Plaintiff’s DAR
Appointment Is an Order Subject to the Exclusive
Review Mechanism Set Forth in 49 U.S.C. § 46110

By its terms, 49 U.S.C. § 46110 applies if the FAA’s termination of Mr.
Pucciariello’s DAR appointment constitutes an “order issued by . . . the [FAA]
Administrator . . . with respect to aviation duties and powers designated to be
carried out by the Administrator[] in whole or in part under [Title 49, Subtitle VII,
Parts A or B of the United States Code].” 49 U.S.C. § 46110(a). Because the
authority to terminate Mr. Pucciariello’s DAR appointment is conferred by 49
U.S.C. § 44702(d)(2),10 which is located within Title 49, Subtitle VII, Part A of the
United States Code, the FAA’s termination decision is clearly within the scope of
agency actions covered by 49 U.S.C. § 46110. Consequently, if the FAA’s
termination decision is an “order” within the meaning of 49 U.S.C. § 46110, then
the federal courts of appeals would have exclusive jurisdiction to review that order.

Although the court has not identified any reported decisions of the United
States Supreme Court or the Federal Circuit applying 49 U.S.C. § 46110,11

10
/ As previously noted, 49 U.S.C. § 44702(d)(2) provides that the FAA Administrator
may rescind, or choose not to renew, a DAR appointment “at any time for any reason the
Administrator considers appropriate.”

(continued . . .)

20
numerous decisions of other federal courts of appeals have interpreted and applied
49 U.S.C. § 46110,12 as well as its predecessor, 49 U.S.C. § 1486(a).13 In the

11
/ The court’s research has revealed only one, non-precedential, Federal Circuit decision
applying 49 U.S.C. § 46110. In BFI Waste Systems of North America, Inc. v. Garvey, 243 F.3d
565 (Fed. Cir. 2000) (table), the Federal Circuit, citing 49 U.S.C. § 46110, concluded that it
lacked jurisdiction to consider a petition for review of an unspecified FAA order, and granted
BFI’s motion to transfer its petition for review to the United States Court of Appeals for the
District of Columbia Circuit.

This court’s precedent applying 49 U.S.C. § 46110 is nearly as sparse. In Crane
Helicopter Services, Inc. v. United States, 45 Fed. Cl. 410 (1999), the court noted that “the
various United States Courts of Appeals have exclusive jurisdiction to review FAA Orders”
pursuant to 49 U.S.C. § 46110, but the court concluded that 49 U.S.C. § 46110 did not apply in
that case because neither party challenged a decision of the FAA. See 45 Fed. Cl. at 436 n.27.
Rather, the plaintiff in Crane Helicopter asserted that the United States Forest Service had
breached a forest fire suppression contract, and the government asserted counterclaims alleging
that the plaintiff had falsely represented its aircraft as a civilian aircraft in order to obtain a
necessary FAA certification. Id. In that procedural context, the court concluded that “FAA
Orders are not the focus of review,” and therefore 49 U.S.C. § 46110 did not apply. Id. Perhaps
the most directly applicable decision of this court is Mike’s Contracting, LLC v. United States,
92 Fed. Cl. 302 (2010), which involved a helicopter owner’s constitutional and tort claims
challenging the FAA’s decision to suspend an airworthiness certificate for one of the plaintiff’s
helicopters based upon the agency’s determination that the helicopter posed an “ongoing and
unacceptable risk to aviation safety.” 92 Fed. Cl. at 305. In a footnote, the court noted that, to
the extent that the helicopter owner’s claims could be construed as challenging the FAA’s safety
determination, this court lacked jurisdiction to consider any such claims because 49 U.S.C. §
46110 vested exclusive jurisdiction in the United States courts of appeals over any direct
challenge to the FAA’s safety determination. See id. at 309 n.12.
12
/ See, e.g., Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170 (D.C. Cir. 2013); Blitz
v. Napolitano, 700 F.3d 733 (4th Cir. 2012); Jones v. United States, 625 F.3d 827 (5th Cir.
2010); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007);
Americopters, LLC v. Fed. Aviation Admin., 441 F.3d 726 (9th Cir. 2006); Merritt v. Shuttle,
Inc., 245 F.3d 182 (2d Cir. 2001); Aviators for Safe & Fairer Regulation, Inc. v. Fed. Aviation
Admin., 221 F.3d 222 (1st Cir. 2000); City of Pierre v. Fed. Aviation Admin., 150 F.3d 837 (8th
Cir. 1998); Aerosource, Inc. v. Slater, 142 F.3d 572 (3d Cir. 1998).
13
/ 49 U.S.C. § 1486(a) originally provided that

[a]ny order, affirmative or negative, issued by the . . . [FAA]
Administrator under this chapter . . . shall be subject to review by
(continued . . .)

21
absence of applicable binding authority, the decisions of other courts of appeals are
helpful aids to this court’s analysis.

The term “order,” for purposes of 49 U.S.C. § 46110, has been given
“‘expansive construction’” by the United States courts of appeals. Ligon v.
LaHood, 614 F.3d 150, 154 (5th Cir. 2010) (quoting Atorie Air, Inc. v. Fed.
Aviation Admin., 942 F.2d 954, 960 (5th Cir. 1991)); accord Gilmore v. Gonzales,
435 F.3d 1125, 1132 (9th Cir. 2006) (“Courts have given a broad construction to
the term ‘order’ in Section 1486(a) [46110’s predecessor].”) (alteration in original)
(citation and internal quotation marks omitted); Green v. Brantley, 981 F.2d 514,
519 (11th Cir. 1993) (stating that “other circuits have . . . noted that ‘[t]he term
order in [49 U.S.C. § 1486, the predecessor to 49 U.S.C. § 46110,] has been given
expansive construction’” (quoting Atorie Air, 942 F.2d at 960)). However, to be
reviewable pursuant to 49 U.S.C. § 46110, an agency order must be final, and the
agency record must be adequate to enable judicial review. See, e.g., Ligon, 614
F.3d at 154 (citing Atorie Air, 942 F.2d at 960). To be sufficiently final, an order
“need only be an agency decision which imposes an obligation, denies a right, or
fixes some legal relationship.” Id. (citation and internal quotation marks omitted).

Defendant asserts, and plaintiff does not contest, that the FAA’s March 29,
2012 “final decision” to uphold the termination of Mr. Pucciariello’s DAR
appointment constitutes an appealable order within the meaning of 49 U.S.C. §
46110. See Def.’s Mot. at 4-5; Pl.’s Resp. at 8 (characterizing Mr. Pucciariello’s
the courts of appeals of the United States or the United States
Court of Appeals for the District of Columbia upon petition, filed
within sixty days after the entry of such order, by any person
disclosing a substantial interest in such order.

Sutton v. U.S. Dep’t of Transp., 38 F.3d 621, 624 (2d Cir. 1994) (quoting 49 U.S.C. § 1486(a)
(1994)); see also Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192 (7th Cir. 1986).
Congress revised and recodified that section in July 1994. See Act of July 5, 1994, Pub. L. No.
103-272, sec. 1(e), § 46110, 108 Stat. 745, 1230. The intended purpose of the Act of July 5,
1994, as reflected in the House report pertaining to that statute, was to “restate in comprehensive
form, without substantive change, certain general and permanent laws related to transportation
and . . . to make other technical improvements in the Code.” H.R. Rep. No. 180, 103d Cong.,
2nd Sess. 1 (1993) (emphasis added), reprinted in 1994 U.S.C.C.A.N. 818, 818; see also id. (“As
in other codification bills enacting titles of the United States Code into positive law, this bill
makes no substantive change in the law.”), reprinted in 1994 U.S.C.C.A.N. at 822.

22
previous district court lawsuit as “an appeal from the administrative level of the
Federal Aviation Administration that was decided on March 29, 2012”). The court
agrees. The March 29, 2012 letter announced that the FAA appeal panel had
“determined [that] the facts . . . support[ed] the managing office’s decision to
terminate [Mr. Pucciariello’s] authority to act as a representative of the
Administrator.” Compl. Attach. B at 3. That letter clearly denied a right and fixed
a legal relationship between Mr. Pucciariello and the FAA by terminating his
ability to issue airworthiness certificates and to conduct inspections, testing, and
examinations necessary to issue such certificates. Therefore, the FAA’s March 29,
2012 “final decision” possesses the requisite finality to be an “order” within the
meaning of 49 U.S.C. § 46110.

Furthermore, although the entire extent of the administrative record is
unknown, it is evident from the complaint and the parties’ briefs that the record
contains not only the settlement agreement itself, which sets forth the basis for Mr.
Pucciariello’s DAR appointment, but also correspondence from the FAA to Mr.
Pucciariello explaining the process by which the agency decided to terminate Mr.
Pucciariello’s DAR appointment as well as the agency’s asserted bases for
termination. See Compl. Attachs. A-B; Def.’s Mot. at 1-4. In his complaint,
plaintiff challenges both the merits of the FAA’s termination decision as well as
the procedures used by the agency in arriving at that decision. See Compl. ¶¶ 9-10
(alleging that the FAA’s termination decision was “without due process or cause”
and was “arbitrary, capricious and otherwise in violation of the law”). The record
herein, which sets forth the reasons supporting the FAA’s termination decision and
describes the procedures afforded to Mr. Pucciariello, is sufficient to allow a
reviewing court to make an informed decision on plaintiff’s claims. See Green,
981 F.2d at 519 (holding that an administrative record consisting of documents
describing the FAA’s investigation of alleged misconduct by plaintiff, a former
designated pilot examiner, as well as related correspondence between plaintiff and
FAA personnel, “would allow a reviewing court to make an informed decision of
the procedure afforded and the reasons supporting” the FAA’s revocation of
plaintiff’s certificate of authority); see also Gilmore, 435 F.3d at 1133 (noting that
“[a]n adequate record [under 49 U.S.C. § 46110] . . . may consist of ‘little more’
than a letter” (quoting San Diego Air Sports Ctr., Inc. v. Fed. Aviation Admin., 887
F.2d 966, 969 (9th Cir. 1989))).

23
 The court therefore concludes that the FAA’s March 29, 2012 “final
decision” to uphold the termination of Mr. Pucciariello’s DAR appointment was an
order subject to 49 U.S.C. § 46110. Accordingly, pursuant to the plain terms of
that statute, the United States courts of appeals have jurisdiction over any review
of the FAA’s termination decision, and any petition for review of that decision had
to have been filed within sixty days of March 29, 2012. See 49 U.S.C. § 46110(a),
(c).

b. 49 U.S.C. § 46110 Provides a Specific and
Comprehensive Scheme of Judicial Review that
Preempts Tucker Act Jurisdiction

Mr. Pucciariello never filed a petition for review of the FAA’s order with a
United States court of appeals. Instead, he chose to file suit in the United States
District Court for the Southern District of Florida, alleging that the FAA’s
termination of his DAR appointment violated his due process rights under the Fifth
Amendment. Pucciariello v. LaHood, No. 12-61675 (S.D. Fla filed Aug. 27,
2012). Then, after his claims in that forum were dismissed for lack of jurisdiction
pursuant to 49 U.S.C. § 46110 as well as on the merits by default, see Def.’s Mot.
App. at A18-A19, Mr. Pucciariello filed suit in this court, alleging that the FAA’s
termination of his DAR appointment breached his December 1998 settlement
agreement and effected an uncompensated taking in violation of the Fifth
Amendment.

The question that remains is whether Mr. Pucciariello may bring his claims
in this court pursuant to the Tucker Act, thereby circumventing the exclusive
jurisdiction of the United States courts of appeals under 49 U.S.C. § 46110. For
the following reasons, the court concludes that he may not.

It is fundamental that all federal courts, except the Supreme Court, are
creatures of statute established by Congress, and therefore possess only the
jurisdiction granted to them by Congress. In re United States, 877 F.2d 1568, 1571
(Fed. Cir. 1989) (citing U.S. Const. art. I, § 1). Congress, acting within its
constitutional powers, may freely choose the court in which judicial review of
administrative orders may occur. See City of Tacoma v. Taxpayers of Tacoma, 357
U.S. 320, 336 (1958) (“It can hardly be doubted that Congress, acting within its

24
constitutional powers, may prescribe the procedures and conditions under which,
and the courts in which, judicial review of administrative orders may be had.”).

As a court established by Congress under Article I of the United States
Constitution, the Court of Federal Claims “enjoys only so much judicial power as
Congress expressly permits.” Cent. Ark. Maint., Inc. v. United States, 68 F.3d
1338, 1341 (Fed. Cir. 1995) (citations omitted). Although Congress, via the
Tucker Act, has granted broad authority to this court to adjudicate “any claim
against the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages
in cases not sounding in tort,” 28 U.S.C. § 1491(a)(1), Congress may withdraw any
grant of Tucker Act jurisdiction, see Tex. Peanut Farmers v. United States, 409
F.3d 1370, 1373 (Fed. Cir. 2005) (citing, e.g., Ruckelshaus v. Monsanto Co., 467
U.S. 986, 1016-17 (1984)).

The Federal Circuit has consistently found preemption of Tucker Act
jurisdiction where Congress has enacted a precisely drawn, comprehensive, and
detailed scheme of review in another forum. See, e.g., Texas Peanut Farmers, 409
F.3d at 1373 (finding preemption of Tucker Act jurisdiction over claims for breach
of a crop insurance contract, where Congress granted the district courts exclusive
jurisdiction over claims against the Federal Crop Insurance Corporation); Wilson v.
United States, 405 F.3d 1002, 1009 (Fed. Cir. 2005) (holding that Congress, by
enacting the Medicare Act, withdrew Tucker Act jurisdiction over claims for
Medicare benefits); Folden v. United States, 379 F.3d 1344, 1357 (Fed. Cir. 2004)
(affirming dismissal of implied-in-fact contract claims and constitutional claims by
applicants for cellular licenses because Congress, in the Communications Act,
reserved judicial review of Federal Communications Commission licensing
decisions exclusively in the United States Court of Appeals for the District of
Columbia Circuit); Vereda, Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir.
2001) (holding that Tucker Act jurisdiction over plaintiff’s takings claim was
preempted by the “specific and comprehensive scheme for administrative and
judicial review” enacted by Congress in the Controlled Substance Act) (citation
and internal quotation marks omitted); Massie v. United States, 166 F.3d 1184,
1188 (Fed. Cir. 1999) (“[A] contract will not fall within the purview of the Tucker
Act if Congress has placed jurisdiction over it elsewhere.”).

25
 The court concludes that 49 U.S.C. § 46110 provides such a specific and
comprehensive scheme with respect to judicial review of FAA orders. In reaching
that conclusion, the court has no reason to look beyond the plain text of the 49
U.S.C. § 46110, in which Congress clearly expressed its intention that the federal
courts of appeals would have “exclusive jurisdiction to affirm, amend, modify, or
set aside any part of” an FAA order. 49 U.S.C. § 46110(c). Applying this clear
language, several federal courts of appeals have held that the judicial review
scheme set forth in 49 U.S.C. § 46110 (and its predecessor, 49 U.S.C. § 1486(a)) is
exclusive. See, e.g., Blitz, 700 F.3d at 740 (concluding that, by enacting 49 U.S.C.
§ 46110, “Congress clearly expressed its intention that any legal challenge to a §
46110 order . . . be brought in the first instance in a court of appeals”);
Americopters, 441 F.3d at 732 (noting that the federal courts of appeals’
jurisdiction to review FAA orders pursuant to 49 U.S.C. § 46110 is “exclusive”);
Clark v. Busey, 959 F.2d 808, 811 (9th Cir. 1992) (concluding that pursuant to 49
U.S.C. § 1486, “the court of appeals’ jurisdiction is exclusive with regard to review
of final FAA actions”) (citations omitted); Suburban O’Hare Commission, 787
F.2d at 192 (same) (citations omitted). The court finds the reasoning of these
decisions to be persuasive, and concludes that the specific and exclusive
jurisdictional authority granted to the federal courts of appeals in 49 U.S.C. §
46110 controls and takes precedence over the general and non-exclusive
jurisdictional authority afforded by the Tucker Act.

c. Plaintiff’s Claims Are Inescapably Intertwined with a
Challenge to the FAA’s Termination of Plaintiff’s
DAR Appointment

The court’s analysis does not end here, however, because plaintiff’s
complaint does not seek to “amend, modify, or set aside any part of” the FAA’s
termination order, see 49 U.S.C. § 46110(c), but rather seeks monetary damages
based upon the FAA’s alleged breach of a settlement agreement and alleged
uncompensated taking in violation of the Fifth Amendment – claims over which
this court would normally possess Tucker Act jurisdiction. See Americopters, 441
F.3d at 736 (noting that “[i]n principle, a district court may decide a claim for
damages because § 46110 does not grant the court of appeals jurisdiction over this
form of relief” (citing Mace v. Skinner, 34 F.3d 854, 858 (9th Cir. 1994)). The
question remains, therefore, whether 49 U.S.C. § 46110 precludes this court’s
jurisdiction over plaintiff’s Tucker Act claims for monetary damages. For the

26
following reasons, the court concludes that Mr. Pucciariello’s monetary claims are,
in essence, challenges to the FAA’s termination of his DAR appointment, and
therefore are subject to the exclusive jurisdictional scheme set forth in 49 U.S.C. §
46110.

Several United States courts of appeals, including the Federal Circuit, have
recognized that statutes such as 49 U.S.C. § 46110 that vest judicial review of
administrative orders exclusively in the courts of appeals also extend to monetary
claims that are “inescapably intertwined” with review of such orders. See, e.g.,
Pines Residential Treatment Ctr. v. United States, 444 F.3d 1379, 1381 (Fed. Cir.
2006) (affirming dismissal of a breach of settlement agreement claim brought by
former operator of a mental health treatment facility because the claim was
“inescapably intertwined” with a claim for Medicare benefits, over which Congress
had preempted Tucker Act jurisdiction (citing Heckler v. Ringer, 466 U.S. 602,
614 (1984))); Doe, 432 F.3d at 1263 (holding that aircraft mechanics’ due process
claims challenging the FAA’s planned reexamination of plaintiffs’ airmen
competency “necessarily require a review of the procedures and actions taken by
the FAA with regard to the mechanics’ certificates” and therefore fell within the
exclusive scheme of judicial review set forth in 49 U.S.C. § 44709 (citing Green,
981 F.2d at 520)); Merritt v. Shuttle, Inc., 187 F.3d 263, 271 (2d Cir. 1999)
(holding that a commercial airline pilot’s due process claims based upon the
FAA’s suspension of plaintiff’s flight privileges were “inescapably intertwined”
with review of the FAA’s suspension order and were therefore subject to 49 U.S.C.
§ 46110); Jones, 625 F.3d at 829-30 (holding that plaintiff’s retaliation claims
challenging the FAA’s denial of plaintiff’s application for an appointment as a
designated engineering representative were “inescapably intertwined with a
challenge to the procedure and merits of that final order” and therefore were
impermissible collateral attacks barred by 49 U.S.C. § 46110) (citations omitted).
As recognized by the Ninth Circuit, the purpose of this “inescapably intertwined”
doctrine is “to prevent litigants from using a damages claim as a collateral attack
on a pending FAA order and to allow courts to identify and dismiss damages
claims that are actually thinly disguised attempt[s] at an end-run around the
jurisdictional limitation imposed by [49 U.S.C. § 46110].” Americopters, 441 F.3d
at 736 (citations and internal quotation marks omitted).

The court’s review of the complaint and the parties’ briefs confirms that Mr.
Pucciariello’s claims are inescapably intertwined with a challenge to the procedure

27
and merits surrounding the FAA’s order terminating his DAR appointment. As
noted, the complaint alleges a number of procedural improprieties with the FAA’s
decision to terminate Mr. Pucciariello’s DAR appointment. See Compl. ¶¶ 1-2, 4-
5, 9, 12, 17-18. It also challenges the merits of the FAA’s termination by alleging
that the agency’s decision was without “cause” and was “arbitrary” and
“capricious.” Id. ¶¶ 9-10; see also id. ¶ 18 (asserting that “[t]he FAA’s alleged
reasons for the termination of Plaintiff’s DAR are without merit”). Therefore, a
consideration of plaintiff’s claims would necessarily require a review of the
procedures used and actions taken by the FAA with regard to the agency’s
termination of Mr. Pucciariello’s DAR appointment, and would also require a
review and balancing of the same evidence used by the agency to support its
decision in that regard. The exclusive scheme of judicial review of FAA orders set
forth in 49 U.S.C. § 46110 bars such a collateral attack, and plaintiff’s attempt to
repackage what are essentially challenges to an FAA order into breach of contract
and Fifth Amendment takings claims must fail. See, e.g., Pines Residential
Treatment Center, 444 F.3d at 1381.

Accordingly, the court concludes that it lacks jurisdiction to consider
plaintiff’s breach of contract claim and his Fifth Amendment takings claim because
those claims are subject to the exclusive jurisdictional scheme set forth in 49
U.S.C. § 46110. Both claims must therefore be dismissed for lack of subject
matter jurisdiction.14

14
/ As previously noted, defendant also argues, as an additional basis for dismissal of
plaintiff’s breach of contract claim pursuant to RCFC 12(b)(1), that the complaint fails to
identify the relevant substantive provisions of the settlement agreement, as required by RCFC
9(k). See Def.’s Mot. at 14. The court rejects that argument. RCFC 9(k) provides that a party,
in pleading a claim founded on a contract, must “identify the substantive provisions of the
contract . . . on which the party relies.” The rule also provides, however, that “[i]n lieu of a
description, the party may annex to the complaint a copy of the contract or treaty, indicating the
relevant provisions.” RCFC 9(k); see Huntington Promotional & Supply, LLC v. United States,
114 Fed. Cl. 760, 766 (2014). Here, plaintiff attached a copy of the relevant settlement
agreement to his complaint. See Compl. Attach. A at 1-3. Although the complaint itself did not
identify the specific provisions of the settlement agreement that plaintiff alleges were breached,
plaintiff provided such information in his response brief. See Pl.’s Resp. at 11-12 (asserting that
the FAA breached the provision of the settlement agreement stating that the agreement “in no
manner denies [Mr. Pucciariello] the right of renewal of [his] DAR [appointment] provided he
otherwise satisfies all regulatory requirements in place or hereafter added to said regulatory
(continued . . .)

28
 4. No Jurisdiction to Award Plaintiff’s Requested Injunctive
and Declaratory Relief

Defendant next argues that the court lacks jurisdiction to award the
injunctive and declaratory relief requested by plaintiff. See Def.’s Mot. at 14-16.
The court agrees.

The Court of Federal Claims may award equitable relief in only very limited,
statutorily defined, circumstances. See United Keetoowah Band of Cherokee
Indians of Okla. v. United States, 480 F.3d 1318, 1326 n.5 (Fed. Cir. 2007)
(citation omitted); Kanemoto v. Reno, 41 F.3d 641, 644-45 (Fed. Cir. 1994) (“The
remedies available in [the Court of Federal Claims] extend only to those affording
monetary relief; the court cannot entertain claims for injunctive relief or specific
performance, except in narrowly defined, statutorily provided circumstances . . .
.”). One such circumstance, and the only one that is potentially relevant to this
case, is when the requested equitable relief is “tied and subordinate to a money
judgment.” James, 159 F.3d at 580 (citation and internal quotation marks
omitted); see also 28 U.S.C. § 1491(a)(2) (allowing equitable relief that is “an
incident of and collateral to” a money judgment in order to “provide an entire
remedy and to complete the relief afforded by the judgment”). In that
circumstance, the court may “issue orders directing restoration to office or
position, placement in appropriate duty or retirement status, and correction of
applicable records.” 28 U.S.C. § 1491(a)(2).

The government contends that equitable relief is “the primary goal of
[plaintiff’s] lawsuit,” and therefore by definition cannot be tied and subordinate to
any award of monetary damages. See Def.’s Mot. at 16 (citing, e.g., Thorndike v.
United States, 72 Fed. Cl. 580, 583 (2006), and Rice v. United States, 31 Fed. Cl.
156, 164 (1994)). Although the court finds this assertion to be unfounded
inasmuch as plaintiff’s complaint clearly and repeatedly requests monetary
damages in the form of lost past and future earnings, “loss of earning capacity,”
and “loss of reputation in the aviation industry,” see Compl. ¶¶ 2, 19-21, the court
nevertheless concludes that it lacks authority under 28 U.S.C. § 1491(a)(2) to
provide the equitable relief requested by plaintiff.

requirements, and is otherwise qualified to be the holder of a DAR” (citing Compl. Attach. A at
2-3)). Plaintiff has therefore substantially complied with the requirements of RCFC 9(k).

29
 First, as noted supra, plaintiff’s requested injunction would “enjoin[] the
FAA from denying Plaintiff his right to a meeting to appeal [the] termination of his
[DAR] designation.” Compl. ¶ 22. This injunction would not be merely incidental
to an award of lost earnings, “loss of earning capacity,” and “loss of reputation in
the aviation industry,” see id. ¶ 19, but rather would be separate from, and in
addition to, such requested damages.15 Moreover, even if plaintiff’s requested
injunction were merely incidental to the damages requested in his complaint, it
does not fall within the narrow group of orders specified in 28 U.S.C. § 1491(a)(2)
because it does not “direct[] restoration to office or position, placement in
appropriate duty or retirement status, [or] correction of applicable records.”

Furthermore, and most fundamentally, because the court concludes that it
lacks jurisdiction over plaintiff’s monetary claims, see supra, and that plaintiff has
failed in any event to state a claim for damages, see infra, the court has no basis
upon which to exercise jurisdiction over plaintiff’s claims for injunctive or
declaratory relief. See, e.g., Legal Aid Soc’y of New York v. United States, 92 Fed.
Cl. 285, 301 (2010) (holding that jurisdiction was lacking with respect to plaintiff’s
equitable claims under 28 U.S.C. § 1491(a)(2) because plaintiff failed to state a
claim for money damages); Flowers v. United States, 80 Fed. Cl. 201, 217, 223
(2008) (holding that “plaintiff does not have a claim for presently due money
damages,” and therefore the court lacked jurisdiction to consider plaintiff’s claims
for equitable relief), aff’d, 321 Fed. Appx. 928 (Fed. Cir. 2008). Thus, the court
cannot consider plaintiff’s claims for injunctive or declaratory relief.

15
/ In contrast, plaintiff’s requested declaration – that the FAA terminated Mr.
Pucciariello’s DAR appointment “in violation of its written agreement,” see Compl. ¶ 2 – would
merely serve as the substantive basis for an award of monetary damages. See Pauley Petroleum
Inc. v. United States, 591 F.2d 1308, 1315 (Ct. Cl. 1979) (explaining that “[e]quitable doctrines
can be employed incidentally to this court’s monetary jurisdiction either as equitable procedures
to arrive at a money judgment or as substantive principles on which to base the award of a
money judgment”) (citations omitted). Ultimately, however, the court lacks jurisdiction to award
plaintiff’s requested declaratory relief because, as explained infra, plaintiff has failed to state a
claim for money damages.

30
 B. Plaintiff Has Failed to State a Claim upon which Relief Can Be
Granted

The court has dismissed all of plaintiff’s claims for lack of subject matter
jurisdiction. Nevertheless, in the interests of judicial economy, the court considers,
in the alternative, defendant’s RCFC 12(b)(6) arguments. Specifically, the
government argues that even if the court were to assume jurisdiction over
plaintiff’s claims, his claims must nevertheless be dismissed for failure to state a
claim upon which relief can be granted. The court agrees, for the following
reasons.

1. Plaintiff Has Failed to State a Claim for Breach of the
Settlement Agreement

The government argues that plaintiff has failed to allege facts that, if true,
would allow the court to reasonably infer that the FAA breached plaintiff’s
settlement agreement. See Def.’s Mot. at 16-17; Def.’s Reply at 4-6. In that
regard, defendant notes that under the settlement agreement which plaintiff
attached to his complaint, Mr. Pucciariello agreed to retire from employment with
the FAA on or before February 28, 1999 and the FAA agreed to appoint him as a
DAR. See Def.’s Mot. at 16 (citing Compl. ¶ 7 & Attach. A at 1-2). Defendant
asserts that, accepting as true the allegations of the complaint, both parties fulfilled
their respective obligations under the settlement agreement when Mr. Pucciariello
retired on or before February 28, 1999 and the FAA appointed him as a DAR. See
id. at 16-17 (citing Compl. ¶ 8 & Attach. A at 4). In addition, defendant asserts
that the settlement agreement “did not provide a guarantee of a perpetual DAR
appointment,” and therefore plaintiff has failed to make a plausible demonstration
that the FAA’s termination of Mr. Pucciariello’s DAR appointment resulted in a
breach of the agreement. See id. at 17.

In response, plaintiff asserts that the FAA, in terminating his DAR
appointment, breached the provision of the settlement agreement stating that the
agreement “in no manner denies [Mr. Pucciariello] the right of renewal of [his]
DAR [appointment] provided he otherwise satisfies all regulatory requirements in
place or hereafter added to said regulatory requirements, and is otherwise qualified
to be the holder of a DAR.” Compl. Attach. A at 2-3; see Pl.’s Resp. at 12.
Plaintiff interprets this provision of the agreement as imposing a “for-cause”

31
limitation on the FAA’s ability to terminate or refuse to renew Mr. Pucciariello’s
DAR appointment. See Pl.’s Resp. at 12 (stating that the agreement “clearly states
that the FAA had to renew Plaintiff’s DAR upon Plaintiff’s request ‘provided he
otherwise satisfies all . . . regulatory requirements in place’ and was otherwise
qualified to hold a DAR appointment” (quoting Compl. Attach. A at 2-3)). In
plaintiff’s view, the FAA’s termination of Mr. Pucciariello’s DAR appointment
breached the agreement because Mr. Pucciariello “had at all times satisfied the
applicable regulatory requirements and was otherwise qualified to hold the DAR.”
See id. In addition, plaintiff asserts that the FAA “breached the settlement
agreement by failing to give Plaintiff an adequate hearing at which he could refute
the basis for his DAR non-renewal.” Id.

In order to state a claim for breach of the settlement agreement, Mr.
Pucciariello must allege facts plausibly suggesting: (1) a valid contract between
the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that
duty; and (4) damages caused by the breach. San Carlos Irrigation & Drainage
Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989). Interpretation of the
settlement agreement, as with any contract, begins with the agreement’s plain
language. See, e.g., Coast Fed. Bank v. United States, 323 F.3d 1035, 1038 (Fed.
Cir. 2003) (en banc); United Int’l Investigative Servs. v. United States, 109 F.3d
734, 737 (Fed. Cir. 1997). In addition, the agreement should be interpreted as a
whole and in a manner which gives “‘reasonable meaning to all its parts.’”
Northrop Grumman Corp. v. Goldin, 136 F.3d 1479, 1483 (Fed. Cir. 1998)
(quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)).

For three reasons, the court concludes that plaintiff has failed to state a claim
for breach of the settlement agreement. First, as a preliminary matter, the court
does not agree with plaintiff’s interpretation of the settlement agreement as
guaranteeing the continuation of Mr. Pucciariello’s DAR appointment absent a
showing of “cause” for termination or nonrenewal. As noted supra, 49 U.S.C. §
44702 and the regulatory scheme promulgated thereunder vest plenary discretion
in the FAA Administrator to terminate, or choose not to renew, DAR
appointments. See 49 U.S.C. § 44702(d)(2) (providing that the FAA Administrator
“may rescind a delegation under this subsection” – including a DAR appointment –
“at any time for any reason the Administrator considers appropriate”); 14 C.F.R. §
183.15(b) (FAA’s implementing regulations setting forth the bases for termination
or nonrenewal of DAR appointments, including, inter alia, “[f]or any reason the

32
Administrator considers appropriate”); FAA Order 8100.8D, ¶ 1105(b) (stating that
“[d]esignation is a privilege that conveys responsibilities, but does not imply
employment or other rights unrelated to FAA needs,” and incorporating the bases
for termination of a DAR appointment as set forth in 14 C.F.R. § 183.15(b)),
¶ 1108(a) (stating that “[a] designation is a privilege, not a right,” and “therefore[]
the Administrator has the authority to terminate a delegation for any reason”),
¶ 1414 (stating that “renewal of any designee appointment is at the option and sole
discretion of the FAA”).

The provision of the settlement agreement upon which plaintiff relies cannot
be read as divesting the FAA Administrator of his statutorily-conferred discretion
to decide whether to terminate or not renew Mr. Pucciariello’s DAR appointment.
That provision stated that the settlement agreement “in no manner denies [Mr.
Pucciariello] the right of renewal of [his] DAR [appointment] provided he
otherwise satisfies all regulatory requirements in place or hereafter added to said
regulatory requirements, and is otherwise qualified to be the holder of a DAR.”
Compl. Attach. A at 2-3. Far from imposing a “for-cause” limitation on the FAA’s
discretion to terminate or not renew Mr. Pucciariello’s DAR appointment, this
provision simply alluded to two of the non-exclusive bases for termination or
nonrenewal of DAR appointments set forth in the FAA’s implementing regulations
– namely, “[u]pon a finding by the Administrator that the representative has not
properly performed his or her duties under the designation,” or “[f]or any reason
the Administrator considers appropriate.” See 14 C.F.R. § 183.15(b)(4), (6). To
interpret this provision as guaranteeing Mr. Pucciariello a perpetual DAR
appointment subject only to a finding of “cause” for termination would be
unreasonable, particularly where, as here, such an interpretation would contradict
the clear congressional grant of discretion with respect to the termination or
nonrenewal of DAR appointments. See Capital Props., Inc. v. United States, 56
Fed. Cl. 427, 434 (2003) (“The rule that contract terms will be given their ordinary
meaning is particularly applicable where the contract language is easily construed
in harmony with the pertinent statute.” (citing, e.g., Am. Science & Eng’g, Inc. v.
United States, 663 F.2d 82, 88 (Ct. Cl. 1981))), aff’d, 89 F. App’x 262 (Fed. Cir.
2004).

Second, even if the settlement agreement could reasonably be interpreted as
imposing a “for-cause” limitation on the FAA’s ability to terminate or not renew
Mr. Pucciariello’s DAR appointment, plaintiff has failed to allege facts plausibly

33
suggesting that the FAA lacked cause to terminate that appointment. As the
government correctly notes, plaintiff attached to his complaint Mr. Lopez’s
January 25, 2012 letter. See Compl. Attach. B at 1-2. That letter, which is
incorporated by reference into the complaint and may be considered without
converting defendant’s RCFC 12(b)(6) motion to dismiss into a motion for
summary judgment, see Toon, 96 Fed. Cl. at 298-99, set forth the agency’s
justification for terminating Mr. Pucciariello’s DAR appointment. The agency’s
bases for termination included its determination that Mr. Pucciariello had
demonstrated during a meeting with FAA personnel on January 18, 2012 that he
lacked understanding of FAA regulations and regulatory guidance pertaining to the
inspection and testing of civilian aircraft, which resulted in his failure to properly
discharge his DAR duties relating to the export of a helicopter to Brazil. See
Compl. Attach. B at 1-2.

Plaintiff alleges no facts from which the court can reasonably infer that the
FAA’s stated reasons for terminating Mr. Pucciariello’s DAR appointment, as set
forth in Mr. Lopez’s January 25, 2012 letter, were incorrect or pretextual.
Although plaintiff alleges, in paragraph 18 of his complaint, that “[t]he FAA’s
alleged reasons for the termination of Plaintiff’s DAR are without merit,” that
allegation is no more than a “label” or “conclusion” that is not entitled to the
presumption of truth afforded to well-pleaded factual allegations. Iqbal, 556 U.S.
at 678 (citation omitted). The same is true of plaintiff’s bald and unsupported
assertion, in his response brief, that he had “at all times satisfied the applicable
regulatory requirements and was otherwise qualified to hold the DAR.” See Pl.’s
Resp. at 12.

Finally, with respect to plaintiff’s argument that the FAA “breached the
settlement agreement by failing to give Plaintiff an adequate hearing at which he
could refute the basis for his DAR non-renewal,” see Pl.’s Resp. at 12, plaintiff has
not identified any provision of the agreement requiring the FAA to utilize certain
procedures in terminating Mr. Pucciariello’s DAR appointment, nor did plaintiff
allege the existence of any such provision in his complaint. Mr. Pucciariello has
therefore failed to allege facts plausibly suggesting any contractual obligation on
the part of the FAA to afford Mr. Pucciariello the particular procedural protections
he alleges were due him.

34
 For all of the foregoing reasons, the court concludes that plaintiff has failed
to state a claim upon which relief can be granted with respect to his claim for
breach of the settlement agreement. That claim must therefore be dismissed
pursuant to RCFC 12(b)(6), even if the court were to assume jurisdiction over the
claim.

2. Plaintiff Has Failed to State a Claim for a Fifth Amendment
Taking

The government also contends that Mr. Pucciariello’s takings claim should
be dismissed for failure to state a claim. In that regard, defendant first argues that
plaintiff has failed to allege sufficient facts from which the court may reasonably
infer that Mr. Pucciariello has a cognizable property interest in his DAR
appointment that could be the subject of a valid takings claim under the Fifth
Amendment. See Def.’s Mot. at 18-19; Def.’s Reply at 6. In addition, defendant
argues that, even if the court were to conclude that plaintiff sufficiently pleaded a
cognizable property interest in his DAR appointment, plaintiff’s takings claim
should nevertheless be dismissed because it is premised upon allegedly unlawful
governmental action. See Def.’s Mot. at 19-20; Def.’s Reply at 6. The court
agrees, as set forth below.

The court evaluates whether plaintiff has stated a Fifth Amendment takings
claim under a two-part test. First, the court must determine whether plaintiff has
established a property interest for purposes of the Fifth Amendment. E.g.,
Acceptance Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009). As to
this first question, “‘existing rules and understandings’ and ‘background
principles’ derived from an independent source, such as state, federal, or common
law, define the dimensions of the requisite property rights for purposes of
establishing a cognizable taking.” Id. at 857 (quoting Conti v. United States, 291
F.3d 1334, 1340 (Fed. Cir. 2002)). Because the existence of a cognizable property
interest is a threshold requirement for a valid takings claim, “[i]f the claimant fails
to demonstrate the existence of a legally cognizable property interest, the court[’]s
task is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372
(Fed. Cir. 2004) (citation omitted). Only if the court concludes that a cognizable
property interest exists does it then proceed to the second step, which is to
determine whether the governmental action at issue amounts to a compensable
taking of that property. Acceptance Insurance, 583 F.3d at 857.

35
 In this case, the court need not proceed past the first step, as plaintiff has
failed to establish a cognizable property interest. To have a property interest
cognizable under the Fifth Amendment, a plaintiff “‘must have more than a
unilateral expectation . . . . He must, instead, have a legitimate claim of
entitlement . . . .’” Members of Peanut Quota Holders Ass’n v. United States, 421
F.3d 1323, 1330 (Fed. Cir. 2005) (quoting Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972)). Here, Mr. Pucciariello asserts a property interest in his
DAR appointment. See Compl. ¶ 11 (alleging that “[t]he settlement agreement
between Plaintiff and Defendant created a property right and property interest in
Plaintiff’s DAR”). Yet, as recognized by at least two federal courts of appeals as
well as this court, designations of authority by the FAA under 49 U.S.C. § 44702
do not create cognizable property interests under the Fifth Amendment because
they are terminable at the discretion of the FAA Administrator. See Lopez v. Fed.
Aviation Admin., 318 F.3d 242, 249 (D.C. Cir. 2003) (holding that an engineer had
no property right in his appointment by the FAA as a designated engineering
representative) (citation omitted); Fried v. Hinson, 78 F.3d 688, 692 (D.C. Cir.
1996) (holding that a pilot examiner had no cognizable property interest in the
renewal of his pilot examiner designation); Greenwood v. Fed. Aviation Admin., 28
F.3d 971, 976 (9th Cir. 1994) (same); Mike’s Contracting, 92 Fed. Cl. at 307-10
(holding that a helicopter owner lacked a cognizable property interest in his
airworthiness certificate for purposes of a Fifth Amendment takings claim); see
also 49 U.S.C. § 44702(d)(2) (stating that the FAA Administrator may rescind, or
choose not to renew, appointments under that section “at any time for any reason
the Administrator considers appropriate”). As such, designees under 49 U.S.C. §
44702 serve at the FAA’s discretion and therefore have no more “‘than a unilateral
expectation’” of renewal. Lopez, 318 F.3d at 249 (quoting Roth, 408 U.S. at 577).

Any doubt that DARs lack a property interest in their designation is clarified
by the FAA’s regulatory guidance, which states that “[a] designation is a privilege,
not a right,” and “therefore[] the Administrator has the authority to terminate a
delegation for any reason.” FAA Order 8100.8D, ¶ 1108(a); see also id. ¶ 1414
(stating that “renewal of any designee appointment is at the option and sole
discretion of the FAA”). Based upon these background principles of law, the court
concludes that Mr. Pucciariello has no cognizable property interest in his DAR
appointment.

36
 In an attempt to distinguish the authorities holding that designations
pursuant to 49 U.S.C. § 44702 are not cognizable property interests under the Fifth
Amendment, plaintiff contends that his DAR appointment is different because it
was conferred by his settlement agreement, which plaintiff asserts prohibited
termination or nonrenewal except for “cause.” See Pl.’s Resp. at 12. Yet, as the
court has already found, the settlement agreement cannot reasonably be read as
displacing the statutory and regulatory framework vesting in the FAA
Administrator unfettered discretion to terminate or refuse to renew DAR
appointments. Moreover, plaintiff cites no authority, and the court has found none,
supporting the notion that designations of authority under 49 U.S.C. § 44702 are
converted from privileges to rights merely because they are conferred by contract.
Plaintiff has therefore failed to establish a cognizable property interest under the
Fifth Amendment.16

Furthermore, the court agrees with defendant that even if plaintiff could
demonstrate a cognizable property interest in his DAR appointment, he
nevertheless fails to state a valid takings claim because his claim is premised upon
the FAA’s alleged violation of its regulations. The gravamen of plaintiff’s takings
claim is his allegation that the FAA unlawfully terminated his DAR appointment

16
/ In support of his contention that he possesses a cognizable property interest in his
DAR appointment for purposes of a Fifth Amendment takings claim, Mr. Pucciariello cites to
several precedential and non-precedential decisions addressing the procedural due process
protections afforded to federal employees with “for-cause” employment contracts. See Pl.’s
Resp. at 13 (citing Fed. Deposit Ins. Corp., 940 F.2d at 474-75, Polos, 621 F.2d at 389-90, and
Terry, 499 F.2d at 702). However, as explained supra and as demonstrated by numerous federal
court decisions cited in defendant’s reply brief, see Def.’s Reply at 3-4, DARs are not federal
employees, see, e.g., Charlima, 873 F.2d at 1081 (citation omitted). Moreover, the court has
already found that plaintiff’s settlement agreement does not contain a “for-cause” limitation on
the termination or nonrenewal of Mr. Pucciariello’s DAR appointment. Therefore, plaintiff’s
reliance upon decisions involving “for-cause” employment contracts is unavailing.

Plaintiff also relies upon several district court decisions addressing whether FAA
designees possessed cognizable property interests in their certificates of authority for purposes of
procedural due process claims. See Pl.’s Resp. at 13-14 (citing Green v. Brantley, 719 F. Supp.
1570, 1575-76 (N.D. Ga. 1989), and White v. Franklin, 637 F. Supp. 601, 610 (N.D. Miss.
1986)). Those cases are likewise inapposite because, as explained supra, this court lacks Tucker
Act jurisdiction over such due process claims. See, e.g., Smith, 709 F.3d at 1116 (citing LeBlanc,
50 F.3d at 1028).

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by failing to follow applicable regulations and internal procedures governing the
termination of such appointments. See Compl. ¶¶ 11-18; see also id. ¶ 1 (asserting
that “[t]his is an action for 5th Amendment taking of property without just
compensation, and without complying with procedural due process and written
procedural rules and regulations designed to protect Plaintiff”), ¶¶ 9-10 (alleging
that the FAA terminated Mr. Pucciariello’s DAR appointment “without due
process or cause,” and in an “arbitrary” and “capricious” manner). The Federal
Circuit has held that such allegations do not state a claim for a Fifth Amendment
taking. See Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1330-31 (Fed. Cir.
2006) (stating that “plaintiff’s assertion that [the U.S. Customs Service’s] actions
ran afoul of the Customs statutes . . . does not form the basis for a legal claim
under the Takings Clause of the Fifth Amendment”) (citation omitted); Lion
Raisins, Inc. v. United States, 416 F.3d 1356, 1369 (Fed. Cir. 2005) (“We have
made clear that a claim premised on a regulatory violation does not state a claim
for a taking.” (citing Rith Energy, Inc. v. United States, 247 F.3d 1355, 1366 (Fed.
Cir. 2001))).

In sum, because plaintiff has failed to establish a cognizable property
interest under the Fifth Amendment, and because his takings claim is premised
upon allegedly unlawful governmental action, his takings claim must be dismissed
pursuant to RCFC 12(b)(6) for failure to state a claim, even if the court were to
assume jurisdiction over that claim.

CONCLUSION

For all of the foregoing reasons, the court concludes that it lacks subject
matter jurisdiction over plaintiff’s claims. In addition, the court concludes that
even if it did possess jurisdiction, plaintiff has failed to state a claim upon which
relief can be granted. Plaintiff’s complaint must therefore be dismissed.

Accordingly, it is hereby ORDERED that

(1) Defendant’s Motion to Dismiss, filed November 18, 2013, is
GRANTED;

(2) The Clerk’s Office is directed to ENTER final judgment in favor of
defendant, DISMISSING the complaint without prejudice; and

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(3) Each party shall bear its own costs.

/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge

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