USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 96-1865
SEA AIR SHUTTLE CORPORATION,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Lawrence E. Duffy for appellant.
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Fernando Campoamor-Sanchez, Trial Attorney, with whom Frank
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W. Hunger, Assistant Attorney General, and Guillermo Gil, United
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States Attorney, were on brief for appellee.
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April 24, 1997
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COFFIN, Senior Circuit Judge. Appellant Sea Air Shuttle
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Corp. ("Sea Air") filed this damages action against the United
States under the Federal Tort Claims Act, 28 U.S.C. 1346,
2671-2180, claiming that it was unlawfully deprived of the right
to use seaplane ramps in the Virgin Islands and that the Federal
Aviation Administration's (FAA) failure to enforce the law makes
it responsible for the company's resulting economic hardship.
The district court dismissed Sea Air's complaint on the ground
that the Federal Aviation Act (FA Act) provides federal courts of
appeals with exclusive jurisdiction to review FAA action, see 49
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U.S.C. app. 1486(a),1 rendering Sea Air's FTCA complaint an
improper collateral attack on the administrative process. We
agree that the case must be dismissed, but rely primarily on an
alternative reason.
I. Background
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The original protagonist in this case was Hurricane Hugo,
which struck the United States Virgin Islands in September 1989
and led to the demise of the company that had been providing
passenger air service between and among the various islands.
Seeking to find a new airline to utilize the seaplane ramps it
owned on St. Thomas and St. Croix, the Virgin Islands Port
Authority (VIPA) in early 1990 issued a request for exclusive
lease proposals. One of the eight companies that responded was
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1 Congress in 1994 recodified the Federal Aviation Act,
without substantive change, at 49 U.S.C. 40101-49105. We,
like the parties, will use the code numbers in effect at the time
of the events that gave rise to this action.
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Caribbean Air Services, Inc. (CAS), which later assigned its
interest to appellant Sea Air.
It is undisputed that VIPA's staff considered the CAS
proposal to be the most viable of the three bids recommended for
further consideration by VIPA's Governing Board. See Sea Air
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Shuttle Corp. v. Virgin Islands Port Auth., 800 F. Supp. 293, 295
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(D.V.I. 1992). The facts surrounding the various proposals, and
the resulting decision of the VIPA board to offer an exclusive
lease to a Sea Air competitor, Caribbean Airboats, Inc. (CAI),
are fully detailed in the district court's thorough opinion in a
related case, Sea Air Shuttle, 800 F. Supp. at 295-98, and it is
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unnecessary to repeat them here.
It suffices to say that appellant Sea Air was displeased
with the outcome of the bid process, and, based on a federal
statute barring exclusive lease agreements for the use of air
navigation facilities, see 49 U.S.C. app. 1349,2 unsuccessfully
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sought access to the contested ramps. Sea Air then sued CAI and
VIPA in the Virgin Islands federal district court based on
federal, constitutional and Virgin Islands law. That action
ultimately also proved unsuccessful, with the court ruling in
March 1992 that VIPA was entitled to enter into an exclusive
leasing arrangement with CAI. See 800 F. Supp. at 304-05.
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2 Section 1349(a) states, in relevant part: "There shall be
no exclusive right for the use of any landing area or air
navigation facility upon which Federal funds have been expended."
There is no dispute that VIPA has received federal funds.
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Meanwhile, Sea Air completed the steps for receiving an air
carrier certificate from the FAA, and began Caribbean operations
in March 1991 without using the St. Thomas and St. Croix ramps.
In October of that year, Sea Air's president wrote to then
Secretary of Transportation Samuel Skinner to inform him of the
lawsuit pending against VIPA and CAI. Allegedly because of its
inability to use the two contested seaplane ramps, appellant
encountered severe financial difficulties and voluntarily filed a
petition for bankruptcy under Chapter 11 in January 1992.
A month later, responding to Sea Air's letter to Secretary
Skinner and other communications, the FAA informed the company
that efforts to resolve the dispute informally had failed, and
that Sea Air could file an administrative complaint against VIPA
pursuant to 49 U.S.C. app. 1482.3 Sea Air did so in March
1992. It asserted that VIPA was in violation of federal law
barring exclusive lease agreements for facilities that receive
federal funding, see 49 U.S.C. 1349(a), and that it had
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unlawfully interfered with Sea Air's route structure, see 49
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U.S.C. 1305.4 It is the FAA's failure to act on that still
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3 Section 1482(a) states, in relevant part:
Any person may file with the Secretary of
Transportation . . . a complaint in writing with
respect to anything done or omitted to be done by any
person in contravention of any provisions of this
chapter, or of any requirement established pursuant
thereto. . . .
4 Section 1305 is titled "Federal preemption," and
subsection (a)(1) states, in relevant part:
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pending complaint that underlies Sea Air's claim for damages in
this action.
On June 29, 1992, Sea Air's bankruptcy proceedings were
converted to Chapter 7. The next day, Sea Air wrote to then
Secretary of Transportation Andrew Card accusing the FAA of
"allow[ing] the illegal conduct of the VIPA to continue, thereby
causing the Chapter 7 proceeding," and urging "immediate
corrective action." See App. at 160, 163.
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On March 4, 1993, Sea Air filed a claim for money damages
with the Department of Transportation and FAA, claiming that the
corporation had suffered nearly $13 million in damages because of
the FAA's negligent failure to act on Sea Air's administrative
complaint. The claim was denied three months later and, pursuant
to the provisions of the FTCA, Sea Air subsequently filed this
lawsuit.
The district court dismissed the action for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief could be granted. The court held that, pursuant to 49
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[N]o State or political subdivision thereof and no
interstate agency or other political agency of two or
more States shall enact or enforce any law, rule,
regulation, standard, or other provision having the
force and effect of law relating to rates, routes, or
services of any air carrier having authority under
subchapter IV of this chapter to provide air
transportation.
Sea Air asserted in its FAA complaint that VIPA's denying it the
use of the ramps "amount[s] as surely to the regulation of the
routes of the Complainant as would the enactment of an actual law
or regulation relating to such routes . . . ."
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U.S.C. app. 1486,5 federal courts of appeals have exclusive
jurisdiction to review the FAA's alleged failure to act on Sea
Air's administrative complaint, and that an FTCA action would be
an improper collateral attack on the administrative process. In
a footnote at the conclusion of its opinion, the court identified
two additional factors rendering the complaint not viable: first,
that it was based solely on the FAA's alleged failure to comply
with a federal statute, and federal statutes do not create
actionable duties under the FTCA; and, second, that the
challenged conduct was protected from suit by the FTCA's
discretionary function exception, 28 U.S.C. 2680(a).
On appeal, Sea Air contends that an FTCA action is
compatible with the pending administrative process because its
objective -- to remedy the negligence of government actors with
damages -- is outside the scope of that process. Appellant
additionally disputes the alternative bases for dismissal noted
by the district court.
II. Discussion
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The analysis in this case logically is divided into two
stages. The first focuses on the Federal Aviation Act, and
whether that statute bars a complainant from simultaneously
seeking relief through the administrative process and through an
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5 Section 1486(a) states, in relevant part:
Any order, affirmative or negative, issued by the
Board or Secretary of Transportation under this chapter
. . . shall be subject to review by the courts of
appeals of the United States or the United States Court
of Appeals for the District of Columbia . . . .
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FTCA claim. The second stage focuses specifically on the
asserted FTCA claim: does it rest on an actionable tort duty and,
if so, is the allegation nonetheless non-actionable because it
addresses discretionary conduct that is immunized from legal
challenge? If, as the district court held, the only way to
challenge the FAA's failure to take action on a complaint within
its jurisdiction is through a direct appeal or a related
proceeding, such as mandamus, then the second stage will never be
reached. If, however, federal law does not categorically bar a
parallel tort suit, the viability of the specific claim must be
examined.
The district court stopped at stage one, holding that Sea
Air could pursue only the remedial path carved out by the FA Act.
It thus held that the FAA's failure to act in a timely manner on
Sea Air's complaint could be addressed only through a petition
for mandamus that had to be filed in the court of appeals -- the
court with exclusive jurisdiction over appeals from FAA
decisions. See 49 U.S.C. app. 1486(a).6
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Sea Air energetically debates that outcome on appeal. It
contends that the jurisdictional limitation is inapplicable here
because its complaint is not about an FAA decision, but about the
agency's negligent performance of its responsibilities. It
points out that the FTCA confers jurisdiction on district courts
for damages actions against federal actors based on common law
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6 Our review of a finding of lack of subject matter
jurisdiction is de novo. Coventry Sewage Ass. v. Dworkin Realty
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Co., 71 F.3d 1, 3 (1st Cir. 1995).
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negligence principles, and emphasizes that the FTCA contains no
exception that would exclude this case from its scope. It is
significant, Sea Air contends, that the FTCA action seeks a
damages remedy, which is unavailable through the administrative
process.
We decline to consider whether an FTCA claim based on FAA
inaction ever could be cognizable, though we think it unlikely.
It is well established that the exclusive jurisdiction given to
the courts of appeals to review FAA actions also extends to
lawsuits alleging FAA delay in issuing final orders. See George
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Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421 (11th Cir. 1993);
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Telecommunications Research & Action v. FCC, 750 F.2d 70, 76
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(D.C. Cir. 1984) ("TRAC"). This grant, together with appellant's
acknowledgment that there is no private right of action under the
relevant provisions of the FA Act, see Interface Group, Inc. v.
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Massachusetts Port Auth., 816 F.2d 9, 14-15 (1st Cir. 1987);
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Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97 (2d Cir.
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1986),7 suggests a congressional intent to limit review of the
FAA's handling of complaints to the scheme set out in 1486(a).
The fact that the FTCA does not explicitly exclude such a claim
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in no way serves to support its existence.
We recognize, nonetheless, that there is some logic in Sea
Air's contention that, because section 1486 does not embrace
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7 In Interface Group, we considered the exclusive rights bar
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of section 1349(a) and noted that the "provision taken as a whole
suggests that Congress sought to benefit the public at large, not
carriers in particular." 816 F.2d at 14.
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damages claims, a plaintiff harmed by the negligent conduct of
FAA employees should be able to seek a remedy under the FTCA,
since the FTCA was designed specifically to provide redress for
the negligence of government actors. See Beins v. United States,
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695 F.2d 591, 597-98 (D.C. Cir. 1982) (FTCA claim seeking damages
for denial of medical certificate may be brought against FAA);
cf. Mace v. Skinner, 34 F.3d 854, 859-60 (9th Cir. 1994) (no
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federal question jurisdiction over actions against FAA only as to
"those classes of claims" reviewable under section 1486 of FA
Act). Presumably, as the D.C. Circuit suggested in Beins, a
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court could avoid conflict with the administrative scheme by
staying a timely filed FTCA action pending the outcome of the
administrative process. See Beins, 695 F.2d at 599.
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We need not, however, delve any more deeply into this issue
because, even if an FTCA claim were permitted,8 it would fail
here at the second stage of analysis. It is virtually axiomatic
that the FTCA does not apply "where the claimed negligence arises
out of the failure of the United States to carry out a [federal]
statutory duty in the conduct of its own affairs," Johnson v.
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Sawyer, 47 F.3d 716, 727-28 (5th Cir. 1995) (en banc) (citation
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8 As the cases relied upon by the United States and the
district court make clear, federal appellate courts
unquestionably are the exclusive forum for appeals of FAA
rulings, or for efforts to instigate action on pending FAA
complaints. See, e.g., George Kabeller, Inc. v. Busey, 999 F.2d
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1417, 1421 (11th Cir. 1993); Telecommunications Research & Action
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v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984). The open question is
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whether this exclusive jurisdiction to review the administrative
process automatically forecloses a tort suit, even if all
elements of tort liability are present.
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omitted). See also, e.g., Art-Metal-U.S.A., Inc. v. United
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States, 753 F.2d 1151, 1157-60 (D.C. Cir. 1985); Clemente v.
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United States, 567 F.2d 1140, 1149 (1st Cir. 1977); Sellfors v.
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United States, 697 F.2d 1362, 1365 (11th Cir. 1983). In other
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words, violation of a federal statute by governmental actors does
not create liability unless state law would impose liability on a
"private individual under like circumstances," 28 U.S.C. 2674.
See Myers v. United States, 17 F.3d 890, 899 (6th Cir. 1994); see
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also Howell v. United States, 932 F.2d 915, 917 (11th Cir. 1991).
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The challenged conduct of the Department of Transportation
and FAA does not meet that "private individual" standard. At
issue here is the United States' failure, through the Secretary
of Transportation and FAA, to take enforcement action under the
statute that prohibits exclusive leases for aviation facilities
that receive federal funding, 49 U.S.C. app. 1349, and the
statute that bars non-federal lawmaking relating to air carrier
rates, routes and services, id. at 1305(a).9 The fact that
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oversight of air carriers is a peculiarly governmental function
does not, of course, necessarily preclude FTCA coverage, as the
Supreme Court explained in Indian Towing Co. v. United States,
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350 U.S. 61, 64-65 (1955). The Court held there that the United
States could be liable under the FTCA for the Coast Guard's
negligence in the operation of a lighthouse, observing that "it
is hornbook tort law that one who undertakes to warn the public
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9 The complaint additionally invoked provisions of more
general scope that are less useful for Sea Air's argument.
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of a danger and thereby induces reliance must perform his 'good
Samaritan' task in a careful manner," id..
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No comparable common law principle is at play in this
context, however. What is necessary is "some relationship
between the governmental employee[s] and the plaintiff to which
state law would attach a duty of care in purely private
circumstances," Myers, 17 F.3d at 899.10 The controversy here
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wholly concerns the FAA's alleged failure to perform its
regulatory functions vis a vis an entity that is out-of-
compliance with federal laws and rules. Its sole obligation in
enforcing the exclusive lease prohibition is to cut off federal
funding. See DOT/FAA Order 5190.1A, 10 (Enforcement) (App. at
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302). Although the Secretary of Transportation or an authorized
representative has the discretion to seek an injunction or other
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process barring further violation of the FA Act, see 49 U.S.C.
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app. 1487(a), this optional regulatory remedy cannot be deemed
to give rise to an enforceable duty to any individual victim of
the unlawful conduct. Sea Air has pointed to no case utilizing a
similar basis for liability in any of the relevant
jurisdictions.11
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10 The law at issue is the state or local law of the
relevant jurisdiction(s), here alleged to be the Virgin Islands,
Puerto Rico, the District of Columbia, and Georgia. The FAA's
Southern Region is based in Atlanta.
11 Sea Air argues that "[t]he failure of two Secretaries of
Transportation and their designees to enforce the statutes and
Sea Air's rights and privileges, where only they and/or their
designees could act to do so, is the 'garden variety common law
torts', recognized by State law and the common law, anywhere
within the jurisdiction of the United States."
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In short, Sea Air has challenged a type of conduct "that
private persons could not engage in, and hence could not be
liable for under local law," Sky Ad, Inc. v. McClure, 951 F.2d
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1146, 1147 & n.2 (9th Cir. 1991) (quoting C.P.Chemical Co. v.
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United States, 810 F.2d 34 (2d Cir. 1987)).12 As we observed in
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rejecting an FTCA claim in another FAA context, "even where
specific behavior of federal employees is required by federal
statute, liability to the beneficiaries of that statute may not
be founded on the Federal Tort Claims Act if state law recognizes
no comparable private liability," Clemente, 567 F.2d at 1149.
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Sea Air attempts to establish an actionable link between the
government's conduct and its own adversity by pointing to the
FAA's grant to it of an air carrier certificate to operate in the
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Reduced to its essence, this argument is no more than a
claim that the United States should be liable for failing to meet
its statutory obligations. Even in states that have a general
doctrine of negligence per se based on violation of statutes,
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courts have declined to find this an adequate basis for an FTCA
claim against the United States. See Johnson v. Sawyer, 47 F.3d
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716, 728-29 (5th Cir. 1995) (en banc). We agree that an FTCA
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action is "unavailable where '[t]he existence or nonexistence of
the claim' 'depends entirely upon Federal statutes.'" Id. at 728
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(quoting United States v. Smith, 324 F.2d 622, 624-25 (5th Cir.
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1963)). Cf. Moody v. United States, 774 F.2d 150, 157 (6th Cir.
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1985) (although finding no actionable duty, holding that United
States could be held liable under negligence per se doctrine
because Tennessee law exposes private individuals to liability
for violation of a federal regulation).
12 In Sky Ad, the plaintiff claimed, inter alia, that the
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United States was liable under the FTCA for the FAA's alleged
failure to adhere to the procedures required to promulgate a new
rule. 951 F.2d at 1147. Sea Air attempts to distinguish Sky Ad
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from its own case because it involved the FAA's "quasi-
legislative" powers to issue rules. The underlying principle,
however, is the same: if the challenged conduct is uniquely
governmental, meaning there is no state private party analogue,
the United States may not be sued under the FTCA.
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Caribbean, including between the ramps at issue. It claims that
this authorization, following Sea Air's fulfillment of numerous
prerequisites, imposed a duty on the FAA to ensure its access to
the approved routes. We think not. Sea Air points to nothing in
the FA Act suggesting that the FAA's permission for it to operate
in a given location is more than a green light to fly, if and
when the arrangements are made with the necessary air facilities.
Although federal rules govern the availability of such facilities
to interested parties, Sea Air has acknowledged that the
statutorily prescribed recourse for VIPA's failure to abide by
the non-exclusive lease rules is for the FAA to cut off its
federal funding. Further sanctions are discretionary. Sea Air,
therefore, cannot reasonably have relied on the FAA's securing it
access to the two ramps, and there consequently is no basis for
finding a duty under state law that would support an FTCA claim.
Our holding does not mean that a potential beneficiary of a
federal law is helpless in the face of serious violations and
agency inaction. As the district court noted, appellant could
have pursued a writ of mandamus from the court of appeals. See,
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e.g., TRAC, 750 F.2d at 76. Although such an approach would not
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have provided Sea Air with the damages remedy it now seeks,
filing of the formal FAA complaint and timely pursuit of mandamus
might have alleviated the loss -- assuming, of course, that its
challenge to the exclusive lease proved meritorious.13
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13 The St. Croix federal district court ruled that the
exclusive lease granted to Sea Air's rival did not violate
federal law. See Sea Air Shuttle Corp. v. Virgin Islands Port
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We note, finally, our agreement with the district court's
observation that the FTCA's discretionary function exception
would serve as an alternative basis for dismissal of Sea Air's
action. As we have explained, the statutory penalty for
violating the exclusive lease prohibition is loss of federal
funds. See supra at 10-11. Any further remedy is discretionary.
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Id. The government had no obligation to secure use of the ramps
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for Sea Air, and it cannot be held liable in damages for its
failure to do so.
Affirmed. No costs.
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Auth., 800 F. Supp. 293, 303-05 (D.V.I. 1992). Sea Air filed a
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motion for reconsideration, which was denied, but did not appeal
the ruling.
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