996 F.

2d 1212

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Philemon K. PLATT, d/b/a Pamlico Air Service, PlaintiffAppellant,
v.
Judith IHLE; Linda Ihle; Federal Aviation Administration;
Reynolds Bishop, individually and as employee of Federal
Aviation Administration; Edward F. Glavin, individually and
as employee of Federal Aviation Administration; Dennis
Scarfeo, individually and as an employee of Federal Aviation
Administration, Defendants-Appellees.
No. 91-2258.

United States Court of Appeals,

Fourth Circuit.
Argued: March 2, 1992.
Decided: June 22, 1993.

Appeal from the United States District Court for the Eastern District of
North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge.
(CA-91-12-CIV-2-BO)
Argued: Charles Barry Zuravin, Columbia, Maryland, for Appellant.
Steven Ellsworth Lacy, New Bern, North Carolina; Linda Kaye Teal,
Assistant United States Attorney, Raleigh, North Carolina, for Appellees.
On Brief: Margaret Person Currin, United States Attorney, Raleigh, North
Carolina, for Appellees.
E.D.N.C.
AFFIRMED.

Before WIDENER and LUTTIG, Circuit Judges, and MACKENZIE,

Senior United States District Judge for the Eastern District of Virginia,
sitting by designation.
OPINION
PER CURIAM:

Philemon K. Platt appeals from an order of the United States District Court for
the Eastern District of North Carolina dismissing his action brought under
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971), and imposing sanctions in favor of two defendants pursuant to
Fed. R. Civ. P. 11. We agree that Platt has failed to state a claim under the
Bivens doctrine, and we find that the district court did not abuse its discretion in
imposing costs and attorney's fees as to the claims against the private
defendants, the Ihles. Accordingly, we affirm.

The relevant facts alleged in Platt's amended complaint, which we assume as

true for present purposes, are as follows. Appellant Platt is a professional
airman who, prior to the events giving rise to this suit, held several types of
pilot's licenses, including a commercial pilot's license and an air taxi/charter
operator's license. In 1988 Platt moved to Ocracoke, North Carolina, where he
intended to pursue his career in the aviation field. In addition to forming his
own air taxi business in Ocracoke, in October, 1989, Platt accepted a position
as chief pilot and check airman with Air East, a small airline operating out of
New Bern, North Carolina. Air East had been having trouble obtaining certain
Federal Aviation Administration (FAA) approvals necessary to operate as an
airline, and Platt was hired in part for his expertise in obtaining the needed
approvals.

However, when the owners of Air East informed Reynold Bishop, an FAA
employee based in Winston-Salem, North Carolina, that they had hired Platt,
Bishop gave them the impression that Platt was not a competent airman and that
they would be unable to conduct their business with him on board. Bishop
informed them that "he and the F.A.A. would never give Phil Platt the
necessary authorization needed by a chief pilot or check airman," that Platt"had
given the Baltimore office [of the FAA] a hard time,"1 and that Platt was the
subject of an ongoing FAA investigation. Allegedly as a result of Bishop's
negative statements, Air East fired Platt the night before he was to begin work.

Platt encountered further difficulties with the FAA after the Air East episode,

this time in connection with his activities as a pilot and air taxi operator. The
airport at Ocracoke is owned by the United States Park Service and does not
allow commercial aviation operations to be based on that airfield. Though Platt
disputes the scope of the prohibition on commercial operations, he apparently
agrees that traditional charter flights may not be conducted from the Ocracoke
airport.2 In any event, the FAA, believing that Platt had violated federal
regulations by conducting charter flights to and from Ocracoke airport, took
steps to revoke Platt's pilot's licenses on February 5, 1991. The FAA's order
revoking those licenses presently is on appeal before the National
Transportation Safety Board (NTSB).

The bulk of Platt's claims arise out of the events leading to the revocation of his
licenses. First, though the record does not reveal the exact date, at some point
during 1989 Platt flew an official of Hyde County, North Carolina, from Swan
Corner, North Carolina, to Ocracoke. That flight apparently was arranged by
Linda Ihle, a private citizen and resident of Ocracoke. Upon completion of the
flight, Linda3 offered to pay Platt for his services. Platt initially refused to
accept the payment because he had a contractual arrangement with Hyde
County whereby he would lease his airplanes to county officials at county
expense when needed for official travel. Ultimately, however, Platt accepted
Linda's check in compensation for transporting the official. Sometime
thereafter, Linda Ihle filed a report with the FAA recounting her arrangement of
that flight and her payment to Platt.

The second incident leading to the revocation of Platt's licenses involved Linda
Ihle's mother, Judith. On May 10, 1989, Platt flew Mrs. Elizabeth O. Howard
from Ocracoke to New Bern and back in exchange for an unspecified amount of
money. During June, 1989, Judith apparently learned of this flight and so
informed FAA officials Edward F. Glavin and Dennis Scarfeo. Glavin then
prepared a statement or "interview" report to be signed by Mrs. Howard
recounting her paid flight with Platt. Judith Ihle then took this statement to Mrs.
Howard, who signed it. On the strength of the reports regarding these flights,
the FAA moved to revoke Platt's licenses.

On May 8, 1991, Platt filed a pro se complaint in the district court against
Judith and Linda Ihle and FAA employees Bishop, Glavin, and Scarfeo 4
claiming, on various legal theories including state tort law and 42 U.S.C.
1983, that the defendants had conspired to fabricate FAA charges against him
in an effort to damage his reputation and close his air taxi business. On May 3,
1991, the court granted Judith and Linda Ihle's motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6). On May 10, 1991, the Ihles moved the court for Fed.
R. Civ. P. 11 sanctions against Platt. Before the court ruled on the sanctions

motion and before the other defendants responded to the complaint, Platt, now
through counsel, filed an amended complaint against all of the defendants,
including the Ihles. This complaint essentially repeated the factual allegations
of the original complaint but added claims under Bivens, supra, against all
defendants. As the Ihles had already been dismissed from the case, Platt sought
to have them reinstated by naming them in the amended complaint and filing a
motion for reconsideration of their prior dismissal. The government, acting on
behalf of the FAA defendants, moved to dismiss the complaint as against
Bishop, Glavin, and Scarfeo.
8

The district court, by order dated September 17, 1991, granted the motion to
dismiss defendants Bishop, Glavin, and Scarfeo, denied Platt's motion to
reconsider the Ihles' dismissal, and awarded Rule 11 sanctions in favor of the
Ihles. As to the claims against Bishop, Glavin, and Scarfeo, the court held that
Platt had failed to allege any specific facts which would support a finding that
they had violated Platt's constitutional rights or that they would not be shielded
from liability by the doctrine of qualified immunity. As to the Ihles the court
held that the amended complaint failed to allege with sufficient specificity that
they had acted in concert with the FAA defendants so that, even if a Bivens
claim may lie against private individuals in narrow circumstances, Platt had
failed to state a claim against them. Further, the court found the claims against
the Ihles so insubstantial as to be frivolous and directed Platt to pay the Ihles'
reasonable expenses incurred in defending the suit, including reasonable
attorney's fees. Finally, having disposed of the only remaining federal claim in
the suit, the court declined to exercise pendent jurisdiction over Platt's state law
claims.5

Being in substantial agreement with the reasoning of the district court, we shall
elaborate on its opinion only briefly, largely to take note of two recent
decisions of the United States Supreme Court that only bolster the district
court's conclusions. For purposes of analysis Platt's Bivens claims can be
divided into three categories: 1) the claims against the Ihles for their
participation in gathering information regarding Platt's allegedly illegal
commercial flights; 2) the claim against FAA employee Bishop for his alleged
defamatory statements to Air East; and 3) the claims against Bishop, Glavin,
and Scarfeo for their alleged fabrication of FAA violations leading to the
revocation of Platt's pilot's licenses. We address each category in turn.

10

We need not address the question of whether Bivens type action may have
maintained against private persons, for we are of opinion that, even if Bivens
actions are maintainable against private individuals under some circumstances,
Platt has failed to allege with even minimal specificity any concerted action on

the part of the Ihles with the FAA in this case. The amended complaint does not
allege any specific facts which, if proved, would establish that the Ihles
conspired with the FAA to violate Platt's due process rights. Without its
conclusory pleading and unnecessary adjectives and adverbs, Platt's complaint
alleges only that the Ihles reported the facts of two incidents, Platt's
compensated flights of a Hyde County official and of Mrs. Howard, the
occurrence of which Platt does not dispute. As we have described, see note 2,
supra, Platt disputes only the legal significance of these reports, a matter which,
as we shall see, is for resolution by the proper federal agencies. His quarrel with
the Ihles, then, is only that they brought the occurrence of those flights to the
attention of the FAA. We are of opinion that a private citizen's relation of
truthful information to a federal regulatory agency does not give rise to a claim
for damages against that citizen even though that agency's use of that factual
information may be legally insupportable or even tortious.
11

Accordingly, we concur with the district court's denial of Platt's motion seeking
reinstatement of the Ihles as defendants. In light of our agreement with the
court's disposition of the claims against the Ihles, we cannot say that the court
abused its discretion in awarding costs and attorney's fees to the Ihles under
Rule 11. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399-405 (1990).

12

As for Platt's second type of claim, that FAA employee Bishop's alleged
defamatory6 statements to Platt's prospective employer, Air East, led to his
termination, we are of opinion that the recent decision in Siegert v. Gilley, 59
U.S.L.W. 4465 (U.S. 1991), largely removes such claims from the realm of
injuries redressable through a Bivens cause of action. Siegert was a clinical
psychologist who had been employed by the federal government at St.
Elizabeths Hospital in Washington, D.C. He resigned from that post to avoid
imminent termination on grounds of alleged excessive absences and general
poor performance. He then began working as a civilian clinical psychologist at
the United States Army Hospital in Bremerhaven, West Germany. The
government requires that such personnel be"credentialed," and as part of the
credentialing process Siegert requested that his previous supervisor at St.
Elizabeths Hospital, one Gilley, provide the Army with information on his job
performance and privileges while a member of their staff. In response Gilley
provided the Army with an exceedingly negative report of Siegert's
performance and qualifications, causing Siegert ultimately to lose his position
with the Army.

13

Siegert sued Gilley for damages under Bivens, claiming that the report was
false and defamatory and thus that Gilley's actions deprived Siegert of his
"liberty" interest in his job without due process of law in violation of the Fifth

Amendment to the United States Constitution. The Court rejected this

contention and held that Siegert had "failed to satisfy the first inquiry in the
examination of such a [Bivens ] claim; he failed to allege the violation of a
clearly established constitutional right." Siegert, 59 U.S.L.W. at 4467.
According to the Court, damage to one's reputation due to the defamatory
statements of a federal official does not constitute a deprivation of "liberty"
within the meaning of the Fifth Amendment even if that damage to reputation
leads to more concrete economic harm. To quote the Court:
14
Defamation,
by itself, is a tort actionable under the laws of most States, but it is not a
constitutional deprivation.
...
15
16 statements contained in the letter would undoubtedly damage the reputation of
The
one in [Siegert's] position, and impair his future employment prospects. But the
plaintiff in Paul v. Davis [, 424 U.S. 693 (1976) ] similarly alleged serious
impairment of his future employment opportunities as well as other harm. Most
defamation plaintiffs attempt to show some sort of special damage and out-of-pocket
loss which flows from the injury to their reputation. But so long as such damage
flows from injury caused by the defendant to a plaintiff's reputation, it may be
recoverable under state tort law but is not recoverable in a Bivens action.
17

Siegert, 59 U.S.L.W. at 4467-68. We are of opinion that Platt's claim against

Bishop falls squarely within the holding in Siegert, and thus we affirm the
district court's dismissal of the claim related to his statements to Air East.

18

Finally we address the remainder of Platt's claims against the FAA employee
defendants, all of which relate to the allegedly wrongful revocation of his pilot's
licenses. The regulations of the FAA and NTSB set out a comprehensive
procedure whereby a pilot having suffered the revocation of his licenses may
challenge the propriety of the revocation before those agencies and, ultimately,
before the federal courts. See generally 49 U.S.C. App. 1429, 1486; 14
C.F.R. Part 13 (1992) (FAA proceedings); 49 C.F.R. Part 821 (NTSB
proceedings). As we have noted, Platt indeed has availed himself of these
procedures and at the time of filing the complaint in this case had an
administrative appeal pending before the NTSB.

19

These statutory and administrative procedures ultimately will determine

whether the FAA in general, and Bishop, Glavin, and Scarfeo in particular,
acted lawfully in revoking Platt's licenses. Certainly those highly specialized
agencies are uniquely qualified to deal with what may prove to be complex

issues of federal aviation law. In Schweiker v. Chilicky, 487 U.S. 412 (1988),
the Court recently made it clear that the existence of such a comprehensive
remedial scheme precludes an injured person from bringing a Bivens damages
action against the alleged wrongdoers. We think the FAA and NTSB
procedures noted above are precisely the type of remedial scheme that obviates
the need for the Bivens cause of action in light of Chilicky, and accordingly we
affirm the district court's dismissal of all of Platt's claims in this case growing
out of the revocation of his licenses.
20

For the foregoing reasons, the judgment of the district court is

21

AFFIRMED.

Between 1977 and 1988 Platt owned and operated an air charter business in
Easton, Maryland. During those years Platt experienced a turbulent relationship
with the Baltimore office of the FAA. That poor relationship culminated in
Platt's filing suit against the FAA in federal court in 1981. The lawsuit was
settled favorably to Platt, a fact which, he alleges, caused FAA officials to bear
a grudge against him from that point forward

As we describe more fully below, the FAA revoked Platt's licenses on the
grounds that he had violated the prohibition on commercial flights out of
Ocracoke by flying persons from Ocracoke to the mainland in exchange for
money. Platt does not dispute that those flights occurred or that he was
compensated for them. Rather, his argument appears to be that the flights were
not prohibited commercial flights because they were not "charter" flights,
meaning that his passengers did not pay him for performing the service of
flying them in his airplane to their destinations. He instead characterizes these
flights as rentals of the airplane itself, combined with his gratuitous service as
pilot. On this distinction he bases his claims against the Ihles
On its face this characterization may seem to be nothing more than a ruse to
evade the restrictions on commercial flights from Ocracoke airport. However,
we need not delve into the merits of this distinction under the complex body of
aviation law, as our disposition of this Bivens action for damages does not
depend on the legality of the flights in question or the propriety of the
revocation of Platt's licenses. We instead leave these matters to the expertise of
the FAA and the NTSB.

For purposes of clarity, we refer to the private defendants in this case, the Ihles,
by their first names

The original complaint also named the FAA itself and the FAA employees in
their official capacities. Platt later consented to the dismissal of these claims

Platt does not appeal the dismissal of the state claims or of his other federal
claims; thus, the only issues remaining in the case for our consideration are the
Bivens claims against the FAA employees in their individual capacities and the
Ihles, as well as the issue of the sanctions award against Platt

At oral argument Platt's counsel insisted that Bishop's statements were not
defamatory, presumably in an attempt to avoid the holding in the Siegert case,
as we describe below. We think the clear implication of Bishop's words,
however, at least was that Platt was incompetent and thus would be a detriment
to Air East's operations. Thus the only fair characterization of this claim is one
for defamation