Sea Air Shuttle Corporation v. U.S.

• Decision Date: 06 March 1997
• Docket Number: No. 96-1865,96-1865
• Citation: 112 F.3d 532
• Parties: SEA AIR SHUTTLE CORPORATION, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 532

112 F.3d 532

SEA AIR SHUTTLE CORPORATION, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 96-1865.

United States Court of Appeals, First Circuit.

Heard March 6, 1997.

Decided April 24, 1997.

Lawrence E. Duffy, San Juan, PR, for appellant.

Fernando Campoamor-Sanchez, Trial Attorney, Aibonito, PR, with whom Frank W. Hunger, Assistant Attorney General, and Guillermo Gil, United States Attorney, Washington, DC, were on brief for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Sea Air Shuttle 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 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

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 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 Shuttle Corp. v. Virgin Islands Port Auth., 800 F.Supp. 293, 295 (D.Vi.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 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 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.

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 unlawfully interfered with Sea Air's route structure, see 49 U.S.C. § 1305. ⁴ It is the FAA's failure to act on that still 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.

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 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

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 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

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 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 Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421 (11th Cir.1993); Telecommunications Research & Action v. FCC, 750 F.2d 70, 76 (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. Massachusetts Port Auth., 816 F.2d 9, 14-15 (1st Cir.1987); Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97 (2d Cir.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 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 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, 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 federal question jurisdiction over actions against FAA only as to "those classes of claims" reviewable under section 1486 of...