Americopters, LLC v. F.A.A.

• Decision Date: 21 March 2006
• Docket Number: No. 04-70330.,No. 04-70348.,No. 04-15097.,No. 04-15098.,04-15097.,04-15098.,04-70330.,04-70348.
• Citation: 441 F.3d 726
• Parties: AMERICOPTERS, LLC, Plaintiff-Appellant, v. FEDERAL AVIATION ADMINISTRATION, Defendant-Appellee. Jan's Helicopter Service, Inc., Plaintiff-Appellant, v. Federal Aviation Administration, Defendant-Appellee. Americopters, LLC, Petitioner, v. Federal Aviation Administration, Respondent. Jan's Helicopter Service, Inc., Petitioner, v. Federal Aviation Administration, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

441 F.3d 726

AMERICOPTERS, LLC, Plaintiff-Appellant, v. FEDERAL AVIATION ADMINISTRATION, Defendant-Appellee.

Jan's Helicopter Service, Inc., Plaintiff-Appellant, v. Federal Aviation Administration, Defendant-Appellee.

Americopters, LLC, Petitioner, v. Federal Aviation Administration, Respondent.

Jan's Helicopter Service, Inc., Petitioner, v. Federal Aviation Administration, Respondent.

No. 04-15097.

No. 04-15098.

No. 04-70330.

No. 04-70348.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 21, 2005.

Filed March 21, 2006.

COPYRIGHT MATERIAL OMITTED

David P. Ledger and Elyze J. McDonald, Carlsmith Ball LLP, Hag & atña, GU, for the appellants.

Kenneth G. Caplan, Special Attorney to the United States Attorney General, San Diego, CA, for the appellee.

Appeal from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding, and On Petition for Review from Orders of the Federal Aviation Administration. D.C. Nos. CV-03-00005-JSU, CV-03-00002-JSU, FAA Nos. 03-00005, 03-00002.

Before MYRON H. BRIGHT,^* M. MARGARET McKEOWN, and RICHARD R. CLIFTON, Circuit Judges.

McKEOWN, Circuit Judge.

Jan's Helicopter Service, Inc. ("Jan's") and Americopters, LLC ("Americopters") filed petitions for review under 49 U.S.C. § 46110, requesting relief from the actions of certain officials of the Federal Aviation Administration ("FAA") that, according to the flight services, had the effect of halting their flight operations. In separately filed appeals based on the same facts, Jan's and Americopters challenge the district court's dismissal of their complaints for lack of jurisdiction under § 46110, which vests in the court of appeals exclusive jurisdiction to review FAA final orders.

We dismiss the petitions for lack of jurisdiction because they were untimely filed without reasonable grounds for delay. As to the appeals, with one exception, the district court correctly dismissed the claims for lack of jurisdiction; the court erred in dismissing the constitutional claims for damages based upon allegations that the FAA's actions effected a taking of property in violation of the Due Process Clause.

BACKGROUND

Jan's and Americopters are not related by common ownership, although they share the same attorney and face similar legal issues. The FAA and district court addressed their nearly identical claims together, and their petitions and appeals have been consolidated before us. For the sake of clarity, we first describe the factual background of each company before reviewing their common history and legal claims before the FAA and district court.

I. JAN'S AND THE ZEIGLER EMAIL

Jan's owns a de Havilland Caribou DCH-4A ("Caribou") transport plane that is registered in the Philippines. The Caribou is used to transport helicopters, also owned by Jan's, that are rented or leased by various commercial fishery operators in Micronesia to search for tuna. Sometime in 2000, Jan's asked the U.S. Department of Transportation ("DOT") what authorization it needed to fly the foreign-registered Caribou out of the Guam Airport. The DOT replied that if Jan's owned, operated and crewed the Caribou itself "the operation would be authorized by regulation under [14 C.F.R. § ] 375.30, and no additional DOT operating authority would be required." Jan's took this statement to mean that it could fly the Caribou out of Guam Airport without any advance DOT or FAA authorization "so long as there was a unity of ownership between the Caribou and the helicopter being transported."

In July 2002, Guam Airport officials told Lewis Zeigler, regional FAA Aviation Safety Inspector, that a Philippine-registered Caribou was using the Guam Airport as a base from which to haul helicopters to other Pacific islands. On July 31, 2002, Zeigler sent an email ("Zeigler Email") to the Guam Airport:

What can you tell me about a Philippine registered Caribou (DHC-4) that is supposed to be based on Guam and flying around the islands? Supposedly it used to be a U.S. registered aircraft and is hauling some small helicopters that are used on fishing boats. Whoever it is they aren't authorized to operate there.

Though the email clearly referred to Jan's Caribou, Jan's did not receive a copy of the message from the FAA, Zeigler or the Guam Airport. Less than two weeks later, as Jan's Caribou was preparing to taxi for take off, the Guam Airport denied ramp access, effectively grounding the aircraft.

Jan's immediately wrote to the FAA requesting a hearing to challenge the grounding of its Caribou without prior notice. Jan's argued that the Zeigler Email was a final FAA order that in effect denied Jan's ramp access without any notice or opportunity to be heard as required by FAA regulations 14 C.F.R. § 13.20(b)¹ and (c).² Jan's also asked for rescission of the directive, as well as actual and consequential damages for the loss of contract revenues that resulted from the grounding of the Caribou.

On August 23, 2002, the FAA's Regional Counsel, Monroe Balton, sent a "preliminary finding," indicating that Zeigler never directed the Guam Airport or anyone else to deny ramp access to Jan's Caribou. However, Balton also wrote that Jan's needed to apply for a permit to continue flying the Caribou.

II. AMERICOPTERS AND THE KANAE LETTER

Until June 2002, Americopters ran a helicopter tour business from a rooftop helipad at a restaurant, Chuck's Steak House ("Chuck's"), in Guam. In February 2002, Clarence Kanae, Principal Operations Inspector for the FAA's regional flight standards office, inspected the helipad at Chuck's. According to Americopters, during that visit, Kanae verbally identified a number of deficiencies of the helipad but never documented these concerns. Americopters asked Kanae to "clarify and confirm ... all of the changes that you would like us to make to ... Chuck's" and provided him a list of improvements Americopters intended to make.

Americopters received no response from Kanae until four months later on June 24, 2002 ("Kanae Letter"):

This letter is to inform you that the use of the roof top as a helicopter-pad, at Chuck's Steak House, is considered unsafe, and does not meet the [FAA] Advisory Circular 150-5390-2A Heliport Design requirements. This AC is [a]dvisory in nature; however, this office feels that [14 C.F.R. § 91.13] will apply to this operation if the AC is not followed. Therefore, this office is requiring that your company immediately cease use of the Chuck's Steak House rooftop for all flight operations.

Americopters wrote to Kanae's manager protesting that it had written Kanae in February 2002 and "agree[d] 100% to each and every change ... requested," but that Kanae failed to respond and, instead, summarily banned Americopters from flying from Chuck's rooftop.

On August 13, 2002, Americopters wrote to the FAA alleging that the Kanae Letter ordered it to cease operations without prior notice in violation of 14 C.F.R. § 13.20(b). Americopters requested rescission of the cease operations order, confirmation that planned improvements to the helipad at Chuck's would comply with FAA regulations, and 90 days to install improvements approved by the FAA. In the alternative, Americopters requested a hearing under § 13.20(c).

III. FURTHER ADMINISTRATIVE PROCEEDINGS

As the district court put it, at the core of this case is a "bureaucratic snag." Bureaucratic roadblock may be more apt. Jan's and Americopters now find themselves in a sort of procedural limbo or netherworld, largely the making of the FAA — first insisting that it did not issue final orders, so as to avoid holding administrative hearings under its own regulations; then arguing that it did issue final orders for purposes of obtaining a dismissal for lack of jurisdiction before the district court; and now, before us, contending again that it did not issue final orders, thus depriving this court of jurisdiction. Jan's and Americopters, to be sure, contributed to this mess by taking their own wrong turns in litigating this case, though their uncertainty is not unsurprising given the way the FAA addressed their claims.

The procedural confusion began on September 19, 2002, when Jan's and Americopters, sharing the same counsel, received one letter from FAA Regional Counsel Monroe Balton. He denied their respective requests for hearings under § 13.20(c) on the basis that the Zeigler Email and Kanae Letter were not actually orders issued by the FAA. Balton pointed to FAA regulations, which state that only the Administrator and specific FAA officers³ have the authority to issue an order under the FAA's legal enforcement regulations (Sub-part C of Part 13), at 14 C.F.R. §§ 13.13-13.29. Since neither Zeigler nor Kanae had the authority to issue grounding or cease-and-desist orders, "[n]o such orders were issued." Thus, according to Balton, without orders to challenge, Jan's and Americopters were not entitled to hearings under § 13.20(c).

It is necessary to pause and emphasize how much the Balton Letter exacerbated the difficult situation already created by the Zeigler Email and Kanae Letter. Jan's and Americopters had stopped their respective flight operations at the behest of FAA officials. By relying upon the dictates of FAA employees as the official word of the FAA, Jan's claimed to have defaulted on a contract because of the Zeigler Email, and Americopters allegedly lost business running helicopter tours by complying with the Kanae Letter. But then came the Balton Letter, which told Jan's and Americopters that, officially, the FAA had issued no orders and had done nothing at all, and that any harm was self-inflicted. The FAA turned an old legal maxim on its head, telling Jan's and Americopters: no foul, no harm.

At this point, Jan's and Americopters made their own contribution to the procedural morass. They both submitted complaints under 14 C.F.R. § 13.5 to the FAA's Chief Counsel alleging that Zeigler and Kanae had acted outside...