Friday, April 29, 2022

Planes flying in, out of Winston-Salem will soon be forced to take new route as vital runway closes for repairs

WINSTON-SALEM, North Carolina (WGHP) — The longest runway at Smith Reynolds Airport is set to temporarily close in June.

Planes flying in and out of Winston-Salem will be forced to take a new route. 

“The last time we did runway 15-33 was about 11 years ago, and so it’s time,” Smith Reynolds Airport director Mark Davidson. “We’re having growing pains. We’re going to see a lot of construction, so just bear with us.” 

The primary runway spans 6,655 feet. Davidson told FOX8 the runway is the lifeblood of the airport. 

“It’s like a manufacturing line,” he said. “If it was to break down, it stops everything, and that’s pretty much the situation we’re in.”

Davidson said officials with the Federal Aviation Administration and North Carolina Department of Transportation Division of Aviation decided the cracks in the runway and taxiway needed repairs. 

On June 5, the airport’s primary runway will close for 28 days. 

“Sometimes it’s busier than others,” Davidson said. “For instance, Wake Forest graduation is coming soon…so we know that we want to have the runway open during that time, so that was one of the reasons we selected our slower month of June to get a lot of this work done.” 

Some of the airport’s largest tenants like North State Aviation and Signature Flight Support are adjusting for the construction crews.   

“What they’ve done is they’ve actually coordinated maintenance,” he said. “Some aircraft will be on the ground during that time. They can do some heavy maintenance or whatever maintenance is required.” 

Plans for improvements go beyond the airfield. In the future, two 20,000 square foot corporate hangars will take the place of three buildings.

The airport terminal will get renovated, and a 60,000 square foot maintenance and repair hangar will be built over the next three years. 

A combination of local, state and federal funds totaling $65 million will pay for it all. 

“There’s changes always going on in an airport,” said Greg Purvis, director for the Forsyth Technical Community College Aviation Program.

Purvis told FOX8 that the impact on the aviation program is minimal. Instructors are using the temporary closure as a rare learning opportunity.  

“They need to know how the taxiway works, how the air system works, how the control tower works,” Purvis said. “We put that all together for them, so that’s what’s so valuable about being here on the airport.”

Davidson said the Piedmont Flight Training building beside the terminal will be demolished. A representative for the flight school told FOX8 they are considering a move to another building at the airport. 

Dassault Falcon 2000, N797HD: Incident occurred April 25, 2022 at St. Louis Regional Airport (KALN), Alton, Madison County, Illinois

Federal Aviation Administration / Flight Standards District Office; St. Louis, Missouri

Aircraft departed, heard a strange noise and returned to airport, it was discovered that the fuselage panel was missing. 

WMG Aviation LLC


Date: 25-APR-22
Time: 18:30:00Z
Regis#: N797HD
Aircraft Make: DASSAULT
Aircraft Model: FALCON 2000
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: MINOR
Activity: PERSONAL
Flight Phase: TAKEOFF (TOF)
Operation: 91
City: ALTON
State: ILLINOIS

Bell OH-58A Kiowa, N281SP: Accident occurred April 26, 2022 in Oakland, Orange County, Florida

This is preliminary information, subject to change, and may contain errors. Any errors in this report will be corrected when the final report has been completed.

The National Transportation Safety Board did not travel to the scene of this accident. 

Additional Participating Entity: 
Federal Aviation Administration / Flight Standards District Office; Orlando, Florida

Coastal Air Service Inc 


Location: Oakland, Florida
Accident Number: ERA22LA209
Date and Time: April 26, 2022, 18:45 Local
Registration: N281SP
Aircraft: GARLICK HELICOPTERS INC OH58A+ 
Injuries: 1 None
Flight Conducted Under: Part 137: Agricultural

Aircraft and Owner/Operator Information

Aircraft Make: GARLICK HELICOPTERS INC
Registration: N281SP
Model/Series: OH-58A+ 
Aircraft Category: Helicopter
Amateur Built:
Operator: 
Operating Certificate(s) Held: Agricultural aircraft (137)
Operator Designator Code:

Meteorological Information and Flight Plan

Conditions at Accident Site: 
Condition of Light:
Observation Facility, Elevation:
Observation Time:
Distance from Accident Site:
Temperature/Dew Point:
Lowest Cloud Condition: 
Wind Speed/Gusts, Direction: / ,
Lowest Ceiling: 
Visibility:
Altimeter Setting: 
Type of Flight Plan Filed:
Departure Point: 
Destination:

Wreckage and Impact Information

Crew Injuries: 1 None
Aircraft Damage: Substantial
Passenger Injuries: 
Aircraft Fire: None
Ground Injuries: 
Aircraft Explosion: None
Total Injuries: 1 None 
Latitude, Longitude: 28.56966,-81.64492 

Rotorcraft crashed under unknown circumstances into Lake Apopka.

Date: 26-APR-22
Time: 22:45:00Z
Regis#: N281SP
Aircraft Make: BELL
Aircraft Model: OH58A
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: UNKNOWN
Activity: AERIAL APPLICATION
Flight Phase: MANEUVERING (MNV)
Operation: 137
Aircraft Operator: COASTAL AIR SERVICE
City: OAKLAND
State: FLORIDA




ORANGE COUNTY, Florida — Crews recovering a helicopter that crashed in Lake Apopka Tuesday said they discovered a second mystery copter in the water Wednesday morning.

Deputies said the second helicopter also went down into the lake on Tuesday later in the day.

Deputies said the pilot of the second helicopter is safe, and that the FAA and NTSB have been notified about the discovery.

Investigators said the pilot in Tuesday’s first crash was brought to shore by a private boat and that they were the only person on board the aircraft at the time of the crash.

Piper PA-24-260 Comanche 260C, N73T: Accident occurred April 27, 2022 at Terre Haute Regional Airport (KHUF), Vigo County, Indiana

This is preliminary information, subject to change, and may contain errors. Any errors in this report will be corrected when the final report has been completed. 

The National Transportation Safety Board did not travel to the scene of this accident. 

Additional Participating Entity: 
Federal Aviation Administration / Flight Standards District Office; Indianapolis, Indiana
Piper Aircraft

Lucid Thought Consulting LLC


Location: Terre Haute, Indiana
Accident Number: CEN22LA184
Date and Time: April 27, 2022, 17:23 UTC 
Registration: N73T
Aircraft: Piper PA-24-260 
Injuries: 2 None
Flight Conducted Under: Part 91: General aviation - Personal

On April 27, 2022, at 17:23 central daylight time, a Piper PA-24-260, N73T, was substantially damaged when it was involved in an accident near Terre Haute, Indiana. The pilot and passenger were not injured. The airplane was operated as a Title 14 Code of Federal Regulations (CFR) Part 91 personal flight.

The airplane departed runway 23. The pilot stated that after departure a door was ajar and he needed to return to land. Upon landing, the airplane rolled about 2,000 ft down the runway when the right main landing gear collapsed. The airplane sustained substantial damage to the right wing. 

Aircraft and Owner/Operator Information

Aircraft Make: Piper
Registration: N73T
Model/Series: PA-24-260 
Aircraft Category: Airplane
Amateur Built:
Operator: On file
Operating Certificate(s) Held: None
Operator Designator Code: N/A

Meteorological Information and Flight Plan

Conditions at Accident Site: VMC 
Condition of Light: Day
Observation Facility, Elevation: KHUF, 57 ft msl 
Observation Time: 16:53 Local
Distance from Accident Site: 0 Nautical Miles
Temperature/Dew Point: 19°C /3°C
Lowest Cloud Condition: Clear
Wind Speed/Gusts, Direction: 6 knots / , 310°
Lowest Ceiling: None
Visibility: 10 miles
Altimeter Setting: 30.21 inches Hg
Type of Flight Plan Filed: None
Departure Point: Terre Haute, IN (HUF)
Destination: Terre Haute, IN (HUF)

Wreckage and Impact Information

Crew Injuries: 1 None 
Aircraft Damage: Substantial
Passenger Injuries: 1 None
Aircraft Fire: None
Ground Injuries: N/A 
Aircraft Explosion: None
Total Injuries: 2 None 
Latitude, Longitude: 39.456236,-87.3018 (est)

Aircraft gear collapsed on landing. 

Date: 27-APR-22
Time: 17:29:00Z
Regis#: N73T
Aircraft Make: PIPER
Aircraft Model: PA24
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: UNKNOWN
Activity: PERSONAL
Flight Phase: LANDING (LDG)
Operation: 91
City: TERRE HAUTE
State: INDIANA

Superior Culver LFA, N37888: Accident occurred April 28, 2022 near Syracuse-Hamilton County Municipal Airport (3K3), Hamilton County, Kansas

This is preliminary information, subject to change, and may contain errors. Any errors in this report will be corrected when the final report has been completed.

The National Transportation Safety Board did not travel to the scene of this accident. 

Additional Participating Entity:
Federal Aviation Administration / Flight Standards District Office; Wichita, Kansas


Location: Syracuse, Kansas
Accident Number: CEN22LA185
Date and Time: April 28, 2022, 10:40 Local 
Registration: N37888
Aircraft: SUPERIOR CULVER LFA
Injuries: 1 Fatal
Flight Conducted Under: Part 91: General aviation - Personal

On April 28, 2022, about 1040 central daylight time, a Superior Culver LFA, N37888, was destroyed when it was involved in an accident at the Syracuse-Hamilton County Municipal Airport (3K3), Syracuse, Kansas. The pilot was seriously injured. The airplane was operated as a Title 14 Code of Federal Regulations Part 91 personal flight.

Witnesses reported that they observed the airplane takeoff; about 150 ft above the ground, the engine started to run rough. The pilot made a hard left turn in a nose high attitude; it appeared that he was attempting to return to the runway. The engine was still running rough when the left wing dropped, and the airplane descended rapidly. It impacted the ground in a nose low attitude and a post-crash fire ensued.

The airplane was recently rebuilt, and the engine was overhauled. The purpose of the accident flight was to transport the airplane from the maintenance facility to its owner in another state.

The airplane was recovered to a secure location for further examination.

Aircraft and Owner/Operator Information

Aircraft Make: SUPERIOR 
Registration: N37888
Model/Series: CULVER LFA
Aircraft Category: Airplane
Amateur Built:
Operator: On file 
Operating Certificate(s) Held: None
Operator Designator Code:

Meteorological Information and Flight Plan

Conditions at Accident Site: VMC 
Condition of Light: Day
Observation Facility, Elevation: KULS,3067 ft msl 
Observation Time: 10:35 Local
Distance from Accident Site: 30 Nautical Miles
Temperature/Dew Point: 19°C /13°C
Lowest Cloud Condition: Clear 
Wind Speed/Gusts, Direction: 16 knots / 21 knots, 220°
Lowest Ceiling: Broken / 1500 ft AGL
Visibility: 10 miles
Altimeter Setting: 29.84 inches Hg 
Type of Flight Plan Filed: None
Departure Point: Syracuse, KS 
Destination:

Wreckage and Impact Information

Crew Injuries: 1 Fatal 
Aircraft Damage: Destroyed
Passenger Injuries: 
Aircraft Fire: On-ground
Ground Injuries: 
Aircraft Explosion: None
Total Injuries: 1 Fatal
Latitude, Longitude: 37.99858,-101.7476

Aircraft crashed under unknown circumstances and caught on fire. 

Date: 28-APR-22
Time: 17:12:00Z
Regis#: N37888
Aircraft Make: SUPERIOR
Aircraft Model: CULVER LFA
Event Type: ACCIDENT
Highest Injury: SERIOUS
Aircraft Missing: No
Damage: DESTROYED
Activity: PERSONAL
Flight Phase: UNKNOWN (UNK)
Operation: 91
City: SYRACUSE
State: KANSAS

SYRACUSE, Kansas (WIBW) - A Michigan man sustained serious injuries Thursday when the small plane he was piloting crashed shortly after taking off from an airport in western Kansas authorities said.

The crash was reported at 11:38 a.m. Thursday at the Hamilton County Airport, 1301 N. Main St. in Syracuse.

According to the Kansas Highway patrol, a Superior Culver LFA took off from the airport before it had a loss of engine power. Upon trying to return to the runway, the plane stalled and crashed.

The pilot, Thomas E. Glotfelty, 64, of Tecumseh, Michigan, was seriously injured in the crash.

Glotfelty was taken to Hamilton County Hospital in Syracuse for treatment.

The patrol said Glotfelty was alone in the plane.





SYRACUSE, Kansas (KAKE) - A 65-year-old pilot from Michigan suffered potentially serious injuries when his small plane crashed in southwest Kansas on Thursday.

The plane went down shortly before noon about a half-mile northeast of the Syracuse-Hamilton County Municipal Airport. The Kansas Highway Patrol says following departure, the fixed-wing Superior Culver LFA lost engine power. When the pilot attempted to return to the runway, the plane stalled.

The pilot, Thomas Glotfelty of Tecumseh, Michigan, was transported to a local hospital.

Beech A36 Bonanza, N360PM: Incident occurred April 28, 2022 at Middlesboro Bell County Airport (1A6), Kentucky

Federal Aviation Administration / Flight Standards District Office; Louisville, Kentucky 

Aircraft landed, right brakes failed and veered off runway into a ditch. 

Bon Aire Inc 


Date: 28-APR-22
Time: 18:30:00Z
Regis#: N360PM
Aircraft Make: BEECH
Aircraft Model: A36
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: MINOR
Activity: PERSONAL
Flight Phase: LANDING (LDG)
Operation: 91
City: MIDDLESBORO
State: KENTUCKY

IAI 1125 Astra SP, N71FS: Incident occurred April 28, 2022 at Acadiana Regional Airport (KARA), Iberia Parish, Louisiana

Federal Aviation Administration / Flight Standards District Office; Baton Rouge, Louisiana

Aircraft landed and left main gear locked up during landing roll and blew a tire. 

Air 71 LLC


Date: 28-APR-22
Time: 17:32:00Z
Regis#: N71FS
Aircraft Make: ISRAEL AIRCRAFT
Aircraft Model: 1125 WESTWIND ASTRA
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: UNKNOWN
Activity: PERSONAL
Flight Phase: LANDING (LDG)
Operation: 91
City: NEW IBERIA
State: LOUISIANA

Beechcraft 35 Bonanza, N2015W: Incidents occurred April 28, 2022 and February 06, 2016

Federal Aviation Administration / Flight Standards District Office; Philadelphia, Pennsylvania

April 28, 2022:  Aircraft nose gear collapsed on landing at Princeton Airport (39N), Somerset County, New Jersey.

CAG Aircraft Holdings LLC


Date: 28-APR-22
Time: 20:41:00Z
Regis#: N2015W
Aircraft Make: BEECH
Aircraft Model: S35
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: UNKNOWN
Activity: PERSONAL
Flight Phase: LANDING (LDG)
Operation: 91
City: PRINCETON
State: NEW JERSEY

Federal Aviation Administration / Flight Standards District Office; Miami, Florida 

February 06, 2016:  Aircraft on landing, nose gear collapsed at Crystal River Airport (KCGC), Citrus County, Florida

Citrus Flying Service Inc

Date:  06-FEB-16
Time:  16:45:00Z
Regis#:  N2015W
Aircraft Make:  BEECH
Aircraft Model:  35
Event Type:  Incident
Highest Injury:  None
Damage:  Unknown
Flight Phase:  LANDING (LDG)
City:  Crystal River
State:  Florida

Cessna 152, N46733: Accident occurred April 28, 2022 and Incident occurred October 14, 2020










This is preliminary information, subject to change, and may contain errors. Any errors in this report will be corrected when the final report has been completed. 

The National Transportation Safety Board did not travel to the scene of this accident. 

Additional Participating Entity: 
Federal Aviation Administration / Flight Standards District Office; Cleveland, Ohio

Investigation Docket - National Transportation Safety Board:


Location: Wadsworth, Ohio
Accident Number: ERA22LA211
Date and Time: April 28, 2022, 17:39 Local
Registration: N46733
Aircraft: Cessna 152 
Injuries: 1 Serious
Flight Conducted Under: Part 91: General aviation - Instructional

Aircraft and Owner/Operator Information

Aircraft Make: Cessna 
Registration: N46733
Model/Series: 152
Aircraft Category: Airplane
Amateur Built:
Operator: 
Operating Certificate(s) Held: None
Operator Designator Code:

Meteorological Information and Flight Plan

Conditions at Accident Site: VMC
Condition of Light: Day
Observation Facility, Elevation: KAKR,1044 ft msl
Observation Time: 17:54 Local
Distance from Accident Site: 15 Nautical Miles
Temperature/Dew Point: 11°C /-3°C
Lowest Cloud Condition: Clear
Wind Speed/Gusts, Direction: 10 knots / , 340°
Lowest Ceiling: None 
Visibility: 10 miles
Altimeter Setting: 30.23 inches Hg 
Type of Flight Plan Filed:
Departure Point:
Destination:

Wreckage and Impact Information

Crew Injuries: 1 Serious 
Aircraft Damage: Substantial
Passenger Injuries: N/A 
Aircraft Fire: None
Ground Injuries: N/A 
Aircraft Explosion: None
Total Injuries: 1 Serious
Latitude, Longitude: 41.028185,-81.798147 (est)

April 28, 2022:  Aircraft during landing experienced wind gust, bounced on nose wheel, veered off runway and flipped over at Weltzien Skypark Airport (15G), Wadsworth, Medina County, Ohio. 

Date: 28-APR-22
Time: 21:39:00Z
Regis#: N46733
Aircraft Make: CESSNA
Aircraft Model: 152
Event Type: INCIDENT
Highest Injury: MINOR
Aircraft Missing: No
Damage: UNKNOWN
Activity: PERSONAL
Flight Phase: LANDING (LDG)
Operation: 91
City: WADSWORTH
State: OHIO

April 28, 2022


WADSWORTH, Ohio (WJW) – State troopers are investigating after a small plane crashed at Weltzien Skypark Airport in Wadsworth on Thursday.

The Ohio State Highway Patrol was called to the crash just after 5:30 p.m.

When troopers got there, they found the Cessna 152 flipped over in the grass between the runway and the taxiway.

According to the highway patrol, the pilot, an Aurora man, was trying to land the plane when it went off the left side of the runway, skidding and overturning onto its roof.

The pilot sustained non-life-threatening injuries and was taken to Akron General Hospital for treatment. He was the only person on-board the plane at the time.

The Federal Aviation Administration will conduct a more in-depth investigation into the crash.


Federal Aviation Administration / Flight Standards District Office; Cleveland, Ohio

October 14, 2020:  Aircraft experienced engine issues and landed in a field near Wayne County Airport (KBJJ), Wooster, Ohio.

Sky Park Inc 


Date: 14-OCT-20
Time: 16:14:00Z
Regis#: N46733
Aircraft Make: CESSNA
Aircraft Model: 152
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: UNKNOWN
Activity: INSTRUCTION
Flight Phase: EN ROUTE (ENR)
Operation: 91
City: WOOSTER
State: OHIO

October 14, 2020 



Mooney M20E, N3368X: Incident occurred April 28, 2022 at Mulino State Airport (4S9), Portland, Oregon

Federal Aviation Administration / Flight Standards District Office; Portland, Oregon

Aircraft had a gear issue during landing and came to rest on fuselage.  


Date: 29-APR-22
Time: 02:40:00Z
Regis#: N3368X
Aircraft Make: MOONEY
Aircraft Model: M20E
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: UNKNOWN
Activity: PERSONAL
Flight Phase: LANDING (LDG)
Operation: 91
City: PORTLAND
State: OREGON

Piper PA-30 Twin Comanche, N8748Y: Incident occurred April 28, 2022 in Harlingen, Cameron County, Texas

Federal Aviation Administration / Flight Standards District Office; San Antonio, Texas

Aircraft experienced engine issues and landed on a road.  

QET Aircraft Services LLC


Date: 28-APR-22
Time: 14:35:00Z
Regis#: N8748Y
Aircraft Make: PIPER
Aircraft Model: PA30
Event Type: INCIDENT
Highest Injury: NONE
Aircraft Missing: No
Damage: NONE
Activity: PERSONAL
Flight Phase: EN ROUTE (ENR)
Operation: 91
City: HARLINGEN
State: TEXAS

Air traffic controller’s retaliation suit barred

By Virginia Lawyers Weekly
April 28, 2022 

Sweeney v. Buttigieg, Case No. 21-cv-0204, April 18, 2022. EDVA at Alexandria (Hilton). VLW 022-3-170. 10 pp.


Where an air traffic controller previously sued the Federal Aviation Administration, or FAA, alleging that a training disparity was the result of sex discrimination, and the FAA prevailed, res judicata barred his new suit alleging the same conduct was the result of retaliation.

Background

Plaintiff entered on duty with the FAA on August 5, 2009. Plaintiff joined the Washington air route traffic control center on December 14, 2009.

On November 18, 2016, plaintiff filed suit, alleging that on April 16, 2013, Raymond Mittan, Washington center’s support manager for training, informed plaintiff that his technical training was being terminated. Because of this decision, plaintiff admits that he had only two options: transfer to another, lower-grade facility or face removal from the FAA. Plaintiff transferred to the Harrisburg tower in Pennsylvania on December 4, 2013.

Before his transfer became effective, plaintiff alleges that he filed an informal sex discrimination charge with the FAA’s office of civil rights on October 7, 2013. The purported basis for this charge was that Mittan had reset the on-the-job training hours of two female air traffic control specialists-ITs or ATSC-ITs, to whom plaintiff contends he was similarly situated.

Following a determination that there had been no discrimination, Plaintiff filed a formal complaint with the FAA. Following an investigation, the agency likewise concluded that no discrimination had occurred. Plaintiff appealed this decision to the Merit Systems Protection Board or MSPB. There, the administrative judge determined that plaintiff’s transfer to Harrisburg tower was “voluntary” and, accordingly, that the MSPB lacked jurisdiction to review it.

Plaintiff then filed suit in this court. It granted the MSPB’s motion to dismiss, holding that the MSPB had correctly determined that plaintiff’s transfer was voluntary and that the MSPB therefore lacked administrative jurisdiction to consider plaintiff’s allegations concerning his transfer. The Fourth Circuit affirmed and the Supreme Court denied certiorari.

While his first charge was wending its way through the administrative process, plaintiff filed a second informal discrimination charge with the OCR regarding the termination of his training and subsequent transfer. This second charge, filed on September 14, 2014, asserted a new theory as to why Washington center officials terminated his training and offered him an opportunity to transfer to Harrisburg: Mittan, allegedly in retaliation for plaintiff’s administrative complaint against Mittan, allowed another ATCS-IT – but not plaintiff – to receive supplemental training in November 2013. This theory forms the basis of plaintiff’s instant complaint. Defendant has filed a motion to dismiss.

Analysis

Plaintiff’s claim is barred by res judicata. “For the doctrine of res judicata to be applicable, there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits.” All three requirements are met here.

The first suit was dismissed on the merits. Plaintiff’s claims there arose from the same termination of his training and the same transfer to Harrisburg Tower at issue in this case. And as in this case, plaintiff alleged there that he did not receive “training procedures” made available to others. The only distinction is that, in the prior suit, plaintiff alleged that the training disparity resulted from sex discrimination, whereas here he claims that the denial of training opportunities was retaliatory.

As the Fourth Circuit has repeatedly held, a litigant cannot avoid res judicata simply by pleading a “different theory” by which he could obtain relief on the same set of events. Moreover, the events underlying plaintiff’s retaliation claim even “occurred during the same time period as the other discrimination alleged in [the prior suit I].” His present claim therefore “could have been brought in [the prior suit]” and any “differences in pleading” between the two actions, such as asserting retaliation rather than sex discrimination, “do not save [his] claim[].”

Finally, for the third element, it is immaterial that plaintiff named the MSPB as the defendant in his first action and the secretary here-there is privity between them as a matter of law.

Defendant’s motion to dismiss granted.
















SWEENEY v. BUTTIGIEG
No. 21-cv-0204.
THOMAS SWEENEY, Plaintiff, v. PETER P. M. BUTTIGIEG, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION, IN HIS OFFICIAL CAPACITY ONLY, Defendant.
United States District Court, E.D. Virginia, Alexandria Division.
April 18, 2022
 
Memorandum Opinion
CLAUDE M. HILTON, District Judge.

THIS MATTER comes before the Court on Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

Plaintiff, proceeding pro se, entered on duty with the FAA on August 5, 2009, as an Air Traffic Control Specialist in Training ("ATCS-IT"). Plaintiff joined the Washington Air Route Traffic Control Center ("Washington Center") in Leesburg, Virginia on December 14, 2009. On April 16, 2013, after approximately three-and-a-half years at Washington Center, Plaintiff alleges that Raymond Mittan, Washington Center's Support Manager for Training, delivered a memo to Plaintiff in informing Plaintiff that his technical training was being terminated. Because of this decision, Plaintiff admits that he had only two options: transfer to another, lower-grade facility or face removal from the FAA. In July 2013, the FAA's National Employee Services Team, which "reviews all [ATCS-ITs] whose training was terminated at a facility," offered Plaintiff an opportunity to transfer to another facility with a lower grade and lower pay. Plaintiff transferred to this facility—the Harrisburg Tower in Middletown, Pennsylvania—on December 4, 2013.

Before his transfer became effective, Plaintiff alleges that he filed an informal sex discrimination charge with the FAA's Office of Civil Rights ("OCR") on October 7, 2013. The purported basis for this charge was that Mittan had reset the on-the-job training ("OJT") hours of two female ATCS-ITs, to whom Plaintiff contends he was similarly situated. Following a determination that there had been no discrimination, Plaintiff filed a formal complaint with the FAA on February 7, 2014. The agency accepted this complaint, investigated, and likewise concluded that no discrimination had occurred. Plaintiff appealed this decision to the Merit Systems Protection Board ("MSPB"). There, the administrative judge determined that Plaintiff's transfer to Harrisburg Tower was "voluntary" and, accordingly, that the MSPB lacked jurisdiction to review it. See Sweeney v. MSPB, 776 F. App'x 788, 791 (4th Cir. 2019) ("Sweeney I"). Plaintiff then sought further review before the full MSPB, which affirmed the administrative judge's decision.

Having exhausted his administrative remedies, Plaintiff filed a federal lawsuit on November 18, 2016. Initially, he petitioned for review in the United States Court of Appeals for the Federal Circuit, however, the Federal Circuit transferred the case to the United States District Court for the Eastern District of Virginia. The MSPB moved to dismiss. This Court granted the MSPB's motion, holding that the MSPB had correctly determined that Plaintiff's transfer was voluntary and that the MSPB therefore lacked administrative jurisdiction to consider Plaintiff's allegations concerning his transfer. Id. at 792; see generally Order, Sweeney v. MSPB, No. 1:17-cv-0926 (E.D. Va. Mar. 13, 2018). Plaintiff, after losing a motion for reconsideration, appealed to the United States Court of Appeals for the Fourth Circuit. Plaintiff contended that the district court had erred in concluding there was no genuine issue of material fact as to whether his transfer was voluntary. See Id. at 794. The Fourth Circuit rejected this argument. The court held that requiring Plaintiff to choose between reassignment and possible termination did not make his selection of the former involuntary:

Although [Plaintiff] had to choose between the unattractive options of participating in termination proceedings or being reassigned to Harrisburg, he was still presented with a choice. Both the Federal Circuit and the MSPB have repeatedly held that the fact that an employee is faced with an unpleasant situation or that his choice is limited to two unattractive options does not make the employee's decision any less voluntary.

Id. at 795 (quoting Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996)). The Fourth Circuit accordingly affirmed the district court's dismissal in its entirety. Id. at 796. The Supreme Court denied certiorari on December 16, 2019. Sweeney v. MSPB, 140 S.Ct. 661 (Mem.) (2019).

While his first charge was wending its way through the administrative process, Plaintiff filed a second informal discrimination charge with the OCR regarding the termination of his training and subsequent transfer. This second charge, filed on September 14, 2014, asserted a new theory as to why Washington Center officials terminated his training and offered him an opportunity to transfer to Harrisburg: Mittan, allegedly in retaliation for Plaintiff's administrative complaint against Mittan, allowed another ATCS-IT, Greg Bhola—but not Plaintiff—to receive supplemental training in November 2013. This theory forms the basis of Plaintiff's instant complaint.

Plaintiff filed this action on February 22, 2021. He asserts a single count of retaliation under Title VII, 42 U.S.C. § 2000e-16(a). He alleges that his October 2013 informal complaint to OCR was protected activity, and that in retaliation for that activity, Mittan "allow[ed] a similarly situated employee to receive supplemental proficiency OJT outside of the FAA's [p]olicies and [p]rocedures" and then "block[ed] the grievance procedures that would have granted [Plaintiff] the same training," resulting in Plaintiff's transfer to Harrisburg in lieu of a proposal to remove him from federal employment.

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To pass this test, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level," which requires the plaintiff to allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). This standard demands "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008) (quoting Twombly, 550 U.S. at 555). In considering a Rule 12(b)(6) motion, therefore, a court need not accept "conclusory allegations regarding the legal effect of the facts alleged." Labram v. Havel, 43 F.3d 918, 921 (4th Cir. 1995); accord Twombly, 550 U.S. at 555. Rather, the court should only "assume the facts alleged in the complaint are true and draw all reasonable factual inferences in [the plaintiff's] favor." Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002).

Plaintiff's claim fails at the outset because it is barred by res judicata. "Under res judicata principles, a prior judgment between the same parties can preclude subsequent litigation on those matters actually and necessarily resolved in the first adjudication." Covert v. LVNV Funding, LLC, 779 F.3d 242, 246 (4th Cir. 2015) (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1314-15 (4th Cir. 1996)). "For the doctrine of res judicata to be applicable, there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits." Pueschel v. United States, 369 F.3d 345, 354-55 (4th Cir. 2004). All three requirements are met here.

Sweeney I was a final judgment on the merits of Plaintiff's claims. In Sweeney I, this Court "entered final judgment in favor of the Defendant, dismissing Plaintiff's claims." Hill v. SJV, LLC, 2017 WL 4476840, at *2 (E.D. Va. July 28, 2017), aff'd, 699 F. App'x 191 (4th Cir. 2017). "As determined by Rule 41(b) and recognized within the Fourth Circuit, unless Plaintiff's claims were dismissed for lack of jurisdiction, the previous case was decided on the merits." Id. Plaintiff's claims in Sweeney I were dismissed for failure to state a claim, not for lack of jurisdiction, and thus the Court's final judgment was on the merits. See, e.g., Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981); see also Order, Sweeney MSPB, No. 1:17-cv-0926 (E.D. Va. Mar. 13, 2018). The Fourth Circuit affirmed that judgment in all respects, and the Supreme Court denied certiorari. The first res judicata element accordingly is fulfilled.

The second element of res judicata requires "an identity of the cause of action in both the earlier and the later suit." Pueschel, 369 F.3d at 354-55. "The determination of whether two suits arise out of the same cause of action, however, does not turn on whether the claims asserted are identical." Id. at 355. "Rather, it turns on whether the suits and the claims asserted therein `arise out of the same transaction or series of transactions or the same core of operative facts.'" Id. (quoting Varat Enters., 81 F.3d at 1316). Critically here, therefore, "[r]es judicata bars not only those claims that were actually raised during prior litigation, but also those claims that could have been raised." Covert, 779 F.3d at 247. Plaintiff's sole claim here falls into the latter category because it clearly arises from "the same transaction or series of transactions" and "the same core of operative facts" as his original lawsuit. As evident from the complaint in Sweeney I, Plaintiff's claims there arose from the same termination of his training and the same transfer to Harrisburg Tower at issue in this case. And as in this case, Plaintiff alleged in Sweeney I that he did not receive "training procedures" made available to others. The only distinction is that, in Sweeney I, Plaintiff alleged that the training disparity resulted from sex discrimination, whereas here he claims that the denial of training opportunities was retaliatory. As the Fourth Circuit has repeatedly held, a litigant cannot avoid res judicata simply by pleading a "different theory" by which he could obtain relief on the same set of events. See Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986) ("Claims may arise out of the same transaction or series of transactions even if they involve different harms or different theories or measures of relief."); see also Saunders v. McAuliffe, 2016 WL 1071015, at *6 (E.D. Va. Mar. 17, 2016) ("Advancing `different harms or different theories or measures of relief' cannot defeat identity among the causes of action" for purposes of res judicata.)

The events underlying Plaintiff's retaliation claim even "occurred during the same time period as the other discrimination alleged in [Sweeney I]." Perry, 2009 WL 1350470, at *6. The Sweeney I complaint was based on events leading up to the termination of Plaintiff's training (in April/May 2013) and between that termination and his transfer to Harrisburg Tower (in December 2013). The alleged retaliation in this case likewise occurred within that time frame: Plaintiff alleges Bhola received his extra training in November and possibly December 2013. Further, Plaintiff admits that he learned of Bhola's training no later than July 31, 2014—more than two years before petitioning the Federal Circuit for review and more than three years before filing his complaint in Sweeney I. His present claim therefore "could have been brought in [Sweeney] I," and any "differences in pleading" between the two actions, such as asserting retaliation rather than sex discrimination, "do not save [his] claim[]." Lamb v. Modly, 2021 WL 1198158, at *8 (D. Md. Mar. 30, 2021); see Perry, 2009 WL 1350470, at *6 (res judicata barred claim that "`might have been presented' during Plaintiff's first discrimination case" (quoting Varat Enters., 81 F.3d at 1315)).

The final res judicata element is "an identity of parties or their privies in the two suits." Pueschel, 369 F.3d at 355. In other words, the parties in the two suits need not be identical as long as there is privity between them. See Kayzakian v. Buck, 865 F.2d 1258, 1988 WL 138438, at *1 (4th Cir. 1988) ("Strangers to prior litigation can plead estoppel based on privity."). As relevant here, "[t]here is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government." Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940). It is therefore immaterial that Plaintiff named the MSPB as the defendant in his first action and the Secretary here—there is privity between them as a matter of law. Kayzakian, 1988 WL 138438, at *2("Privity exists where a plaintiff attempts to relitigate the same claim by naming different governmental entities and employees as defendants."); see also Kentucky v. Graham, 473 U.S. 159, 168 (1985) (holding that suit against government official in official capacity is nothing more than a suit against the government).

For the foregoing reasons, all three elements of res judicata are satisfied here, meaning that Plaintiff's claim is barred. It is hereby ORDERED that Defendant's Motion to dismiss is GRANTED.

Incident occurred April 28, 2022 at Fresno Yosemite International Airport (KFAT), Fresno County, California

Airplane with flight control issues makes emergency landing in Fresno, fire official says




Fresno Fire Department engines were called to Fresno Yosemite International Airport for a plane experiencing “flight control malfunctions,” firefighters said Thursday.

The crews were onhand as a safety precaution but the plane landed safely about 11:15 a.m., department spokesperson Jonathan Lopez said.

The American Airlines plane was coming in from Dallas, according to airport public information officer Vikkie Calderon. 

“There was no impact to our other aircraft operations,” she said. 

It was the second reported emergency landing at the Fresno Airport in 10 days. On April 18, a commercial passenger airplane made emergency landing due to a cracked windshield.

That landing was also safe.