
USCA1 Opinion

	




                                       United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1865                             SEA AIR SHUTTLE CORPORATION,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Lawrence E. Duffy for appellant.               _________________               Fernando Campoamor-Sanchez, Trial Attorney, with  whom Frank               __________________________                             _____          W. Hunger, Assistant Attorney  General, and Guillermo Gil, United          _________                                   _____________          States Attorney, were on brief for appellee.                                 ____________________                                    April 24, 1997                                 ___________________               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                                        ____________________               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.                                           -2-          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.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                         _______________          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.                                         ___                                        ____________________               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.                                         -3-               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                                        ____________________               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:                                         -4-          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                                        ____________________               [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 . . . ."                                         -5-          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                                        ____________________               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 . . . .                                         -6-          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                                        ____________________               6  Our review  of  a  finding  of  lack  of  subject  matter          jurisdiction  is de novo.  Coventry Sewage Ass. v. Dworkin Realty                           __ ____   ____________________    ______________          Co., 71 F.3d 1, 3 (1st Cir. 1995).          ___                                         -7-          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                                        ____________________               7 In Interface Group, we considered the exclusive rights bar                    _______________          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.                                         -8-          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 FA          Act).   Presumably,  as the  D.C. Circuit  suggested in  Beins, a                                                                   _____          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.                                   ___ _____               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.                                                                _______          Sawyer, 47 F.3d 716,  727-28 (5th Cir. 1995) (en  banc) (citation          ______                                        __  ____                                        ____________________               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                        ___  ____  _____________________    _____          1417, 1421 (11th Cir. 1993); Telecommunications Research & Action                                       ____________________________________          v. FCC, 750 F.2d 70, 76 (D.C.  Cir. 1984).  The open question  is             ___          whether this exclusive jurisdiction  to review the administrative          process  automatically  forecloses  a  tort  suit,  even  if  all          elements of tort liability are present.                                            -9-          omitted).  See  also,  e.g.,  Art-Metal-U.S.A.,  Inc.  v.  United                     ___  ____   ____   _______________________      ______          States,  753 F.2d  1151, 1157-60  (D.C. Cir.  1985); Clemente  v.          ______                                               ________          United States, 567 F.2d  1140, 1149 (1st Cir. 1977);  Sellfors v.          _____________                                         ________          United  States, 697 F.2d 1362,  1365 (11th Cir.  1983).  In other          ______________          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          ___ _____    _____________                                    ___          also Howell v. United States, 932 F.2d 915, 917 (11th Cir. 1991).          ____ ______    _____________               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                                       ___          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,                                      __________________     _____________          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                                        ____________________               9  The complaint  additionally  invoked provisions  of  more          general scope that are less useful for Sea Air's argument.                                         -10-          of a danger and  thereby induces reliance must perform  his 'good          Samaritan' task in a careful manner," id..                                                    ___               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                          _____          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                     ___          302).  Although  the Secretary of Transportation or an authorized          representative has the discretion to seek an  injunction or other                                 __________          process  barring further violation of  the FA Act,  see 49 U.S.C.                                                              ___          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                                         ____________________               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."                                         -11-               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                                         ____________     _______          1146, 1147 &  n.2 (9th  Cir. 1991) (quoting  C.P.Chemical Co.  v.                                                       ________________          United States,  810 F.2d 34 (2d Cir. 1987)).12  As we observed in          _____________          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.                                            ________               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                                        ____________________               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,                                  ___ __          courts have declined to  find this an adequate basis for  an FTCA          claim against the United States.  See Johnson v.  Sawyer, 47 F.3d                                            ___ _______     ______          716, 728-29 (5th  Cir. 1995) (en  banc).  We  agree that an  FTCA                                        __  ____          action is "unavailable where  '[t]he existence or nonexistence of          the claim' 'depends entirely upon Federal statutes.'"  Id. at 728                                                                 ___          (quoting United States v.  Smith, 324 F.2d 622, 624-25  (5th Cir.                   _____________     _____          1963)).  Cf. Moody v. United  States, 774 F.2d 150, 157 (6th Cir.                   ___ _____    ______________          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                      ______                          _____  ____          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                                                                    _______          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.                                         -12-          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,                                                                       ___          e.g., TRAC,  750 F.2d at 76.  Although such an approach would not          ____  ____          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                                        ____________________               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                       ___  ______________________     ____________________                                         -13-               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.                  ___ _____          Id.  The government had no obligation to secure use  of the ramps          ___          for Sea  Air, and it  cannot be  held liable in  damages for  its          failure to do so.               Affirmed.  No costs.               ________   _________                                        ____________________          Auth., 800 F.  Supp. 293, 303-05 (D.V.I. 1992).   Sea Air filed a          _____          motion  for reconsideration, which was denied, but did not appeal          the ruling.                                         -14-
