De Feyter v . FAA CV-10-358-JL 3/25/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Robert L . de Feyter
v. Civil N o . 10-cv-358-JL Opinion N o . 2011 DNH 049 Federal Aviation Administration
OPINION & ORDER
The question in this case is whether a private citizen can
compel the Federal Aviation Administration (“FAA”) to impose
civil penalties on third parties who have violated FAA
regulations. Plaintiff Robert L . de Feyter, who lives near the
Apte Heliport in North Conway, New Hampshire, has been
complaining to the FAA for years that the heliport is being used
for flights at dangerously low altitudes and at night. The FAA,
which approved the heliport in 2000 for daytime flights only,
investigated the complaints, withdrew its approval, and
recommended in 2005 that the heliport be closed. Nevertheless,
de Feyter alleges that the heliport is still being used in the
same dangerous manner. He has repeatedly asked the FAA to impose
civil penalties on the heliport’s owner and pilots under the FAA
Act, 49 U.S.C. § 46301, but the FAA has declined to do s o , noting
that its heliport “determinations are only advisory” to state and
local governments. 14 C.F.R. § 157.7. This pro se action is de
Feyter’s attempt to compel the FAA to impose such penalties. The FAA has moved to dismiss the case for lack of subject-
matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), arguing that
(1) there is no private right of action to enforce the FAA Act or
related regulations; (2) its decision not to impose civil
penalties is committed to agency discretion and therefore not
reviewable under the FAA Act, the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 551 et seq., or by petition for a writ of
mandamus; and (3) even if that decision were reviewable, only the
United States Court of Appeals for the First Circuit or the D.C.
Circuit would have jurisdiction to review i t , see 49 U.S.C. §
46110. After hearing oral argument, and for essentially those
reasons, this court grants the motion to dismiss. De Feyter’s
request that the case be transferred instead to one of those
circuit courts is denied, as transfer is not “in the interest of
justice.” 28 U.S.C. § 1631; see also Britell v . United States,
318 F.3d 7 0 , 75 (1st Cir. 2003) (where a case clearly lacks
merit, “it is in the interest of justice to dismiss it rather
than to keep it on life support”).
I. Applicable legal standard
“Facial attacks on a complaint” under Rule 12(b)(1) “require
the court merely to look and see if the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction.”
Torres-Negron v . J & N Records, LLC, 504 F.3d 1 5 1 , 162 (1st Cir.
2 2007). In making that determination, the court “must credit the
plaintiff’s well-pled factual allegations and draw all reasonable
inferences in the plaintiff’s favor.” Merlonghi v . United
States, 620 F.3d 5 0 , 54 (1st Cir. 2010). Where, as here, the
plaintiff is proceeding pro s e , the complaint must be construed
even more generously, “held to less stringent standards than
formal pleadings drafted by lawyers.” Estelle v . Gamble, 429
U.S. 9 7 , 106 (1976); accord Rodi v . S . New Eng. Sch. of Law, 389
F.3d 5 , 13 (1st Cir. 2004). “If the well-pleaded facts,
evaluated in that generous manner, do not support a finding of
. . . subject-matter jurisdiction,” then the court has no
authority to review the case, and it must be dismissed.
Fothergill v . United States, 566 F.3d 2 4 8 , 251 (1st Cir. 2009).
As the FAA acknowledges, see document n o . 12 at 2 n.2, some
of its arguments could be viewed not as jurisdictional
challenges, but as arguments that de Feyter has failed to state a
claim for relief. Under such circumstances, the court may
analyze the arguments under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, rather than Rule 12(b)(1). See, e.g., Mercado
v . Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 4 1 , 46 n.6
(1st Cir. 2005); Arroyo-Torres v . Ponce Fed. Bank, 918 F.2d 276,
280 (1st Cir. 1990) (court is “not bound by the label”); 5B
Charles Alan Wright and Arthur R. Miller, Federal Practice and
Procedure § 1347, at 51 (3d ed. 2004) (“the substance of a
3 party’s defense or objection rather than its form will control
the district court’s treatment of a Rule 12(b) motion”). The
Rule 12(b)(6) analysis is similar to the Rule 12(b)(1) analysis:
construing the complaint in the same generous manner, the court
must determine whether the plaintiff has made factual allegations
sufficient to “state a claim to relief that is plausible on its
face.” Ashcroft v . Iqbal, 129 S . C t . 1937, 1949 (2009 (quoting
Bell Atl. Corp. v . Twombly, 550 U.S. 5 4 4 , 570 (2007)).
II. Background
In 1997 or 1998, Wylie Apte submitted a “Notice of Landing
Area” to the FAA, proposing to establish a heliport on his
property in North Conway, New Hampshire. See 14 C.F.R. §§ 157.3
and 157.5 (requiring any “person who intends to . . . establish a
new airport or activate an airport,” including a heliport, to
notify the FAA “90 days in advance”). Apte had been operating
the heliport for more than a decade without FAA approval. After
receiving that notice, the FAA conducted an aeronautical study,
ultimately issuing a “letter of determination” in early 2000 that
gave “conditional” approval to the heliport. See id. § 157.7
(providing that the FAA, after conducting an aeronautical study,
may issue an “advisory” determination of either “no objection,”
“objectionable,” or a “conditional determination [that] will
identify the objectionable aspects of a project or action and
4 specify the conditions which must be met and sustained to
preclude an objectionable determination”). One of the conditions
was that the heliport be used only for daytime flights.
In the years that followed, the FAA received numerous
complaints of nighttime flights at the heliport, including from
de Feyter, who lives nearby. In 2005, after conducting an
investigation and a hearing, the FAA informed de Feyter that it
had concluded “that revocation of the determination letters to
both the Apte Heliport [and another nearby heliport] is
warranted.” Shortly thereafter, the FAA issued a letter to Apte
“terminating approval” of the heliport “because the FAA has
received information indicating that conditions stated in our
determination letter are not being complied with. Specifically,
that helicopter operations are being conducted at night when
night operations are not authorized.” See id. § 157.7(c)
(indicating that an FAA determination may be “revised, or
terminated . . . based on new facts”). According to de Feyter,
the FAA not only received those reports, but confirmed them
through its investigation and a hearing.1 The letter to Apte
1 The FAA has submitted its own version of events, see document n o . 12-1, which differs from de Feyter’s in a number of respects. For example, the FAA denies that it made any finding of a regulatory violation or any “formal determination[] that operations at the Apte Heliport fell outside the conditions” stated in its determination letter. Id. at 5-6. For purposes of analyzing the FAA’s motion to dismiss, however, this court assumes that de Feyter’s account is the correct one. See Part I , supra.
5 “recommend[ed] that all operations at the heliport be ceased
immediately.”
Notwithstanding that recommendation, the Apte Heliport has
continued operating for the past six years and, according to de
Feyter, still conducts nighttime flights, as well as flights at
dangerously low altitudes over populated areas. Apte has not
submitted a further “Notice of Landing Area” seeking to reinstate
the FAA’s approval of the heliport, under either the same or
different conditions. Believing that the lack of further notice,
coupled with the continued use of the heliport for unauthorized
flights, violates FDA regulations (specifically, the notice
requirements of 14 C.F.R. §§ 157.3 and 157.5), 2 de Feyter has
repeatedly requested that the FAA impose civil penalties against
the heliport’s owner and pilots under the FAA Act, 49 U.S.C. §
46301. But the FAA has refused to do s o , noting that its
heliport “determinations are only advisory” to state and local
governments. 14 C.F.R. § 157.7. The FAA informed de Feyter by
letter in 2010 that “the evidence we found does not warrant
2 It is debatable whether those FAA regulations actually require further notice in this situation, especially after the FAA has already conducted a hearing on the matter. For purposes of analyzing the FAA’s motion to dismiss, however, this court assumes arguendo that further notice is required and that the Apte Heliport’s owner and pilots have violated the regulations.
6 taking FAA action” and that “[u]nless you raise new issues to u s ,
we view this matter as closed.”
After receiving that letter, de Feyter brought this pro se
action against the FAA, requesting that this court “direct the
FAA back to its mission” by ordering it to “apply civil
penalty(s) against the operator and pilots using the terminated
Apte Heliport.”3 The complaint itself does not specify which
claim(s) de Feyter is asserting; it merely invokes the FAA Act
and regulations and then requests the relief quoted above.
Recognizing that pro se complaints must be construed liberally,
the FAA assumed, for purposes of its motion to dismiss, that de
Feyter was asserting (1) a private cause of action to enforce the
FAA Act and regulations; (2) a petition for direct review of
agency action under the FAA Act and/or the APA; and (3) a
petition for writ of mandamus under 28 U.S.C. §§ 1361 and 1651.
Those are the claims typically asserted by a private citizen
seeking relief of this sort. De Feyter essentially embraced them
in his objection, sur-reply, and oral argument. Accordingly,
this court will treat them as his claims and analyze each one in
turn.
3 The complaint also requested an award of damages for de Feyter’s costs in bringing this action, but he has since indicated that “has no objection” to the dismissal of that request, which the FAA argued was barred by sovereign immunity. See document n o . 1 0 , at 6.
7 III. Analysis
A. Private cause of action
First, the FAA argues that there is no private cause of
action to enforce the FAA Act and related regulations, and that
this court therefore lacks subject-matter jurisdiction over that
claim. The First Circuit has indeed ruled that “Congress, in
crafting the [FAA] Act, intended public, not private,
enforcement,” and that “neither the Act nor the regulations
create implied private rights of action.” Bonano v . E . Caribbean
Airline Corp., 365 F.3d 8 1 , 86 (1st Cir. 2004) (identifying “a
long list of other courts that have concluded” the same); see
also Buck v . Am. Airlines, Inc., 476 F.3d 2 9 , 34 (1st Cir. 2007)
(reiterating that “for the purpose of implying private rights of
action, the FAA Act . . . is barren soil”). So it is clear that
de Feyter cannot bring such a claim. He has not attempted to
argue otherwise, or to distinguish this case from those binding
precedents.
That does not, however, deprive this court of subject-matter
jurisdiction over the claim. “It has long been recognized that
where a plaintiff asserts that a private right of action is
implied from federal law, federal courts do have the requisite
subject matter jurisdiction to determine whether such a federal
remedy exists.” Arroyo-Torres, 918 F.2d at 280 (quotation
omitted); see also Verizon Md., Inc. v . Pub. Serv. Comm’n of Md.,
8 535 U.S. 635, 642-43 (2002) (explaining that “the absence of a
valid . . . [private] cause of action does not implicate subject-
matter jurisdiction,” so long as the plaintiff’s assertion of
that cause of action is not “wholly insubstantial and
frivolous”). Nevertheless, because no private cause of action
exists, de Feyter’s claim must be dismissed on the merits under
Rule 12(b)(6). See, e.g., Arroyo-Torres, 918 F.2d at 280
(affirming Rule 12(b)(1) dismissal under Rule 12(b)(6) in similar
situation).
B. Direct review of agency action
Next, the FAA argues that its decision not to impose civil
penalties is discretionary and therefore not subject to direct
review under the FAA Act and/or the APA. Both of those statutes
authorize a person adversely affected by final agency action to
seek direct review of i t . See 49 U.S.C. § 46110 (FAA Act--
authorizing “a person disclosing a substantial interest in an
[FAA] order” to seek review of that order); 5 U.S.C. §§ 702 and
704 (APA--authorizing “[a] person . . . adversely affected or
aggrieved by agency action” including a “failure to act,” to seek
review where permitted by statute, such as the FAA Act, or where
“there is no other adequate remedy in a court”); Penobscot Air
Servs., Ltd. v . FAA, 164 F.3d 713, 718 (1st Cir. 1999)
(explaining that, where the FAA Act is silent, the APA controls).
9 But neither statute permits review “to the extent that . . . [the
challenged] agency action is committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2) (APA); see also Steenholdt v . FAA,
314 F.3d 633, 638-39 (D.C. Cir. 2003) (construing the FAA Act to
have the same limitation); Adams v . FAA, 1 F.3d 955, 956 (9th
Cir. 1993) (same).
It is well established that “an agency’s decision not to
take enforcement action should be presumed immune from judicial
review under § 701(a)(2),” because “such a decision has
traditionally been ‘committed to agency discretion,’” and
“Congress [in] enacting the APA did not intend to alter that
tradition.” Heckler v . Chaney, 470 U.S. 8 2 1 , 832 (1985); see
also Taylor v . U.S. Dep’t of Labor, 440 F.3d 1 , 9-10 (1st Cir.
2005). The presumption “may be rebutted,” however, “where the
substantive statute has provided guidelines for the agency to
follow in exercising its enforcement powers,” such as “by setting
substantive priorities, or by otherwise circumscribing an
agency’s power to discriminate among issues or cases it will
pursue.” Chaney, 470 U.S. at 833. In analyzing whether the
presumption has been rebutted, courts generally “consider both
[1] the nature of the administrative action at issue and [2] the
language and structure of the statute.” Drake v . FAA, 291 F.3d
5 9 , 70 (D.C. Cir. 2002).
10 The administrative action at issue here is the FAA’s
decision not to impose civil penalties on the Apte Heliport’s
owner and pilots for violating FAA regulations (specifically, the
notice requirements set forth in 14 C.F.R. §§ 157.3 and 157.5).
As the Supreme Court noted in Chaney, such a decision “often
involves a complicated balancing of a number of factors which are
peculiarly within [the agency’s] expertise,” including “whether
agency resources are best spent on this violation or another,
whether the agency is likely to succeed if it acts, whether the
particular enforcement action requested best fits the agency’s
overall policies, and, indeed, whether the agency has enough
resources to undertake the action at all.” 470 U.S. at 831.
Agencies “generally cannot act against each technical violation”
of their regulations, so there must be a “proper ordering of
. . . priorities,” and the “agency is far better equipped than
the courts” to do i t . Id. at 831-32. As a result, the decision
not to impose civil penalties is generally the type of action
committed to agency discretion.
The FAA Act’s language and structure confirm that the
specific penalty decision at issue here is indeed committed to
agency discretion. Under the Act, “[a] person is liable to the
United States Government for a civil penalty of not more than
[the statutory maximum] for violating . . . a regulation
prescribed” under chapter 4 0 1 , which includes the notice
11 regulations that de Feyter alleges were violated. 49 U.S.C. §
46301(a)(1). In a section entitled “Administrative imposition of
penalties,” the Act provides that, after notice and an
administrative hearing, the “FAA may impose a civil penalty for a
violation of chapter 401 . . . or a regulation prescribed”
thereunder. Id. § 46301(d)(2) (emphasis added). If the penalty
exceeds a certain amount, the Act prohibits the FAA from imposing
it administratively, see 49 U.S.C. § 46301(d)(4), but provides
that the FAA “may” bring a civil action seeking to impose i t , id.
§§ 46106 and 46305 (emphasis added). Of course, “the term ‘may’
usually indicates that something is permissive, not mandatory,”
Liberty Mut. Ins. C o . v . Greenwich Ins. Co., 417 F.3d 193, 197
(1st Cir. 2005), and thus suggests that the FAA need not impose
or seek penalties for every violation.4
Nothing in the FAA Act supplies a “meaningful standard . . .
against which to judge the agency’s exercise of discretion” in
4 In contrast, the Act states that the FAA “shall” investigate “reasonable” complaints of regulatory violations (unless it “is of the opinion that the complaint does not state facts that warrant an investigation or action”) and “shall issue an order to compel compliance” if it “finds in an investigation . . . that a person is violating this part.” 49 U.S.C. § 46101(a) (emphases added). Neither of those provisions is at issue here, because de Feyter is seeking to compel the imposition of civil penalties, not merely an investigation (which, he alleges, has already occurred) or an order of compliance (he views the FAA’s 2005 letter to Apte as a standing order to close the heliport, see document n o . 1 3 , at 4 ) . It is worth noting, though, that the D.C. Circuit has ruled that the Act “gives the FAA virtually unbridled discretion” even over the decision whether to investigate. Drake, 291 F.3d at 7 2 .
12 deciding which regulatory violations to penalize and which not to
penalize. Taylor, 440 F.3d at 9. Nor does anything in the FAA’s
regulations. See 14 C.F.R. § 13.11 (stating that the FAA may
dispose of a case without enforcement action even where “it is
determined that a violation . . . of the FAA Act . . . or
regulation issued under it” has occurred). De Feyter argues that
the FAA’s written Compliance and Enforcement Program supplies
such a standard. See FAA Order N o . 2150.3B (Oct. 1 , 2007). But
that program does not purport to cabin agency discretion; to the
contrary, it states that the “FAA’s discretion in these areas is
absolute and presumed to be immune from review,” citing Chaney as
authority. Id. at 7-3.5 So the presumption that the FAA’s
decision not to impose civil penalties is committed to agency
discretion--and thus “immune from judicial review”--has not been
rebutted, at least by the sources that the parties have
5 At oral argument, de Feyter also argued for the first time that the instructions to the FAA’s “Notice of Landing Area” form cabin FAA discretion by warning applicants that “the FAA Act . . . provides that any person who violates a rule, regulation or order . . . shall be subject to a civil penalty not to exceed $1,000 for each violation.” (Emphasis added). “This court generally will not consider theories raised for the first time at oral argument, out of fairness to adverse parties and the court.” Prince v . Metro. Life Ins. Co., 2010 DNH 046, 22 n.11. That is particularly true where, as here, they rely on materials outside the record. Even if properly raised, moreover, de Feyter’s argument would fail because the instructions merely purport to paraphrase the FAA Act’s civil penalty provision, which speaks for itself. Again, the FAA Act states that the FAA “may” impose civil penalties, not that it “shall.”
13 identified and that this court has been able to find. Chaney,
470 U.S. at 832.
Like the absence of a private cause of action, see Part
III.A, supra, the fact “[t]hat a plaintiff complains about an
action that is committed to agency discretion by law does not
mean that his case is not a ‘civil action[] arising under the
Constitution, laws, or treaties of the United States,’ 28 U.S.C.
§ 1331,” nor does it “mean, therefore, the court lacks subject
matter jurisdiction” over i t . Oryszak v . Sullivan, 576 F.3d 5 2 2 ,
526 (D.C. Cir. 2009) (citing Baker v . Carr, 369 U.S. 186, 198
(1962)). It is an issue of justiciability, not jurisdiction.
See id. Nevertheless, because the FAA’s decision is committed to
agency discretion and therefore not reviewable under the FAA Act
or the APA, de Feyter’s petition for direct review must be
dismissed on the merits under Rule 12(b)(6). See Part I , supra;
Arroyo-Torres, 918 F.2d at 280.
C. Exclusive jurisdiction of circuit courts
Even if the FAA’s decision were reviewable, the FAA argues
that only the United States Courts of Appeals for the First
Circuit or the D.C. Circuit would have jurisdiction to review i t ,
thus precluding review in this court. To the extent (if any)
that de Feyter is seeking review of an FAA order, that is true.
The FAA Act provides that “a person disclosing a substantial
14 interest in an order issued by” the FAA “may apply for review of
the order by filing a petition for review in the United States
Court of Appeals for the D.C. Circuit or in the court of appeals
of the United States for the circuit in which the person
resides,” 49 U.S.C. § 46110(a), and further states that the
petitioned court has “exclusive jurisdiction to affirm, amend,
modify, or set aside any part of the order and may order the
[FAA] to conduct further proceedings.” Id. § 46110(c) (emphasis
added); see also Aviators for Safe & Fairer Regulation, Inc. v .
FAA, 221 F.3d 2 2 2 , 225 (1st Cir. 2000).
It is debatable, though, whether the FAA action that de
Feyter is challenging qualifies as an “order” under the FAA Act,
as opposed to some other form of agency action covered only by
the APA. See id. (noting that the term “order” has been “read
expansively” to encompass even informal letters, “so long as the
agency’s position is definitive and clearly expressed”); compare
Ass’n of Citizens to Protect & Pres. The Env’t of the Oak Grove
Cmty. v . FAA, 287 Fed. Appx. 7 6 4 , 766 (11th Cir. 2008)
(unpublished) (suggesting that § 46110(a) also “applies when an
agency’s failure to act results in a final order never being
issued, thereby indefinitely depriving the court of appeals of
jurisdiction”), with Capozzi v . Dep’t of Transp., 135 F. Supp. 2d
8 7 , 95 (D. Mass. 2001) (distinguishing, in dicta, between
“orders” and “agency inaction”). Indeed, even the FAA seems
15 unable to make up its mind on that issue. Compare document n o .
7-1, at 12 (arguing that § 46110 applies), with document n o . 1 2 ,
at 5 (arguing that “there is no FAA order to have reviewed”).
This court need not resolve that debate, because de Feyter’s
claim is not reviewable anyway for the reasons already discussed.6
D. Request for transfer
To the extent (if any) that the circuit courts have
exclusive jurisdiction, de Feyter requests that this court
transfer the case to one of those courts under 28 U.S.C. § 1631,
which provides:
Whenever a civil action is filed in a court . . . , including a petition for review of administrative action, . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
6 The FAA also argues that de Feyter’s claim is not reviewable under the FAA Act because it was filed more than 60 days after any “order” was issued. See 49 U.S.C. 46110(a) (providing that the “petition must be filed not later than 60 days after the order is issued,” unless “there are reasonable grounds” for any further delay). This court need not reach that issue either.
16 As construed by the First Circuit, that statute “furnishes a
court that lacks jurisdiction over an action with a choice
between transfer and dismissal. That choice is subject to a
rebuttable presumption in favor of the transfer alternative.”
Subsalve USA Corp. v . Watson Mfg., Inc., 462 F.3d 4 1 , 43 (1st
Cir. 2006). “Since the term ‘interest of justice’ is vague,
district courts have a good deal of discretion in deciding
whether to transfer a case.” Phillips v . Seiter, 173 F.3d 609,
610 (7th Cir. 1999).
Where, as here, a case clearly lacks merit or would not be
reviewable even in the transferee court, “it is in the interest
of justice to dismiss it rather than to keep it on life support
(with the inevitable result that the transferee court will pull
the plug).” Britell, 318 F.3d at 7 5 ; see also Phillips, 173 F.3d
at 610 (“there is no reason to raise false hopes and waste
judicial resources by transferring a case that is clearly
doomed”); Charles v . Rice, 28 F.3d 1312, 1323 (1st Cir. 1994)
(concluding that transfer “would be to no avail” where “the only
tribunal arguably possessed of jurisdiction” had held that it
lacked jurisdiction under such circumstances). In keeping with
that principle, this court denies de Feyter’s request for
transfer, concluding that transfer would be futile and hence
would waste judicial resources without furthering the interest of
justice. Of course, this ruling does not prevent de Feyter from
17 filing a new petition with one of the circuit courts, if he
wishes to do s o .
E. Mandamus claim
Finally, the FAA argues that it cannot be compelled to
impose civil penalties by writ of mandamus under 28 U.S.C. §§
1361 and 1651, again because the decision not to impose such
penalties is committed to agency discretion. “Mandamus is
regarded as an extraordinary writ reserved for special
situations.” In re City of Fall River, 470 F.3d 3 0 , 32 (1st Cir.
2006). One of its “ordinary preconditions” is “that the agency
or official have acted (or failed to act) in disregard of a clear
legal duty.” Id. To satisfy that standard, the duty must be
“non-discretionary.” Eveland v . Dir. of CIA, 843 F.2d 4 6 , 51
(1st Cir. 1988) (quoting Heckler v . Ringer, 466 U.S. 6 0 2 , 616-17
(1984)). Because the FAA’s decision not to impose civil
penalties is indeed discretionary, see Part III.B, supra,
mandamus relief is unavailable in this case. Once again, that
does not mean that this court lacks subject-matter jurisdiction.
See 28 U.S.C. § 1361 (“The district courts shall have original
jurisdiction of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.”). But it means that de
Feyter’s mandamus claim must be dismissed under Rule 12(b)(6) for
18 failure to state a claim. See Part I , supra; Arroyo-Torres, 918
F.2d at 280.
IV. Conclusion
For the reasons set forth above, the FAA’s motion to
dismiss7 is GRANTED, under Rule 12(b)(6) rather than Rule
12(b)(1). De Feyter’s request for transfer to the First Circuit
or D.C. Circuit8 is DENIED. The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
Joseph N . Laplante u/ited States District Judge
Dated: March 2 5 , 2011
cc: Robert L . de Feyter, pro se Gretchen Leah Witt, Esq.
7 Document n o . 7 . 8 Document n o . 1 0 , at 7-9.