                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       NOV 1 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



    SILVERWING AT SANDPOINT, LLC, an             Nos. 15-35589, 16-35296,
    Idaho limited liability company,             17-35051

                      Plaintiff-Appellant,
                                                 D.C. No. 2:12-cv-00287-EGL
     v.
                                                 MEMORANDUM*
    BONNER COUNTY, an Idaho municipal
    corporation,

                      Defendant-Appellee.

                     Appeal from the United States District Court
                               for the District of Idaho
                      Edward J. Lodge, District Judge, Presiding

                       Argued and Submitted October 2, 2017
                                Portland, Oregon

Before: PAEZ and BEA, Circuit Judges, and LAMBERTH**, District Judge.

          In April 2006, Plaintiff SilverWing at Sandpoint, LLC (“SilverWing”)

purchased 18.1 acres of land abutting an airport operated by Idaho’s Bonner County



*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Royce C. Lamberth, Senior District Judge for the U.S. District
Court for the District of Columbia, sitting by designation.
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(“the County”), on which SilverWing planned to build a 45-unit development of

personal airplane hangars and residences.             When the Federal Aviation

Administration (“FAA”) placed the airport in noncompliance status due in part to

SilverWing’s plans for the development, construction on the development was

significantly delayed. SilverWing filed this lawsuit against the County to recover

damages caused by the delay. SilverWing alleged claims for breach of the covenant

of good faith and fair dealing, taking without just compensation (via 42 U.S.C. §

1983), violation of equal protection (also via § 1983); and promissory estoppel. The

district court granted the County’s motion for summary judgment on all but the

promissory estoppel claim, which it remanded to state court. SilverWing appealed.

After filing its notice of appeal, SilverWing filed in the district court a Fed. R. Civ.

P. 60(b)(6) motion to reconsider the judgment, which the district court denied.

SilverWing appealed that ruling as well as the district court’s order awarding the

County costs and attorney’s fees. For the following reasons, we affirm all of the

district court’s rulings except the denial of SilverWing’s Rule 60(b)(6) motion,

which we dismiss for lack of jurisdiction.

1.    SilverWing’s state law claim for breach of the covenant of good faith and fair

dealing is preempted by federal law. The FAA preempts the fields of “aviation

safety,” Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007), and “aircraft

operations,” Burbank-Glendale-Pasadena Airport Auth. v. City of Los Angeles, 979


                                           2
F.2d 1338, 1340 (9th Cir. 1992). When the County’s airport was found to be in

noncompliance by the FAA, due to specific safety and operations concerns with

SilverWing’s development, the FAA required the County to implement a Corrective

Action Plan (“CAP”). The CAP included limiting future residential access to the

airport and pursuing alternatives to the current “through-the-fence” arrangements,

which allowed airplanes to access the municipal airport from SilverWing’s land. It

was not the County which frustrated SilverWing’s plans; it was the FAA. Thus,

SilverWing’s claim is preempted.

2.    SilverWing’s claims under 42 U.S.C. § 1983 fail. Although the County, in

voting to submit a new Airport Layout Plan (“ALP”) to the FAA, took official action

to ensure the airport’s compliance with federal law, the “moving force” behind the

action was the FAA’s requirement that the County change the airport’s ALP. Thus,

the challenged conduct was not pursuant to any County “policy or custom” and

cannot serve as the basis for a § 1983 lawsuit. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694 (1978).

3.    The district court did not abuse its discretion by denying SilverWing’s Rule

60(b)(6) motion to reconsider the judgment. Rule 62.1 authorizes district courts to

deny a timely filed motion for relief under Rule 60(b)(6) that is barred by a pending

appeal, as was the case here when the motion was filed. The denial of such a motion




                                         3
is not appealable and, if appealed, is subject to dismissal under Scott v. Younger, 739

F.2d 1464, 1466 (9th Cir. 1984). Thus, we dismiss.

4.    The district court did not abuse its discretion by awarding Rule 54(d)(1) costs

and attorney’s fees to the County. The County is a “prevailing party” within the

meaning of Rule 54(d)(1) because it obtained a judgment with respect to all of

SilverWing’s claims except the one ultimately remanded to state court. San Diego

Police Officers’ Ass’n v. San Diego City Emps. Ret. Sys., 568 F.3d 725, 741 (9th Cir.

2009). As such, it is entitled to costs unless SilverWing can show why a cost award

would be “inappropriate or inequitable.”       Ass’n of Mexican-Am. Educators v.

California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc). No such showing has been

made here. Furthermore, the “through-the-fence” agreement between the parties

provided that attorney’s fees were to be awarded to the party deserving of costs in

any action brought “to enforce” the agreement. Because the § 1983 claims were

brought, at least in part, to enforce the “through-the-fence” agreement, it was not

error for the court to award fees also for those claims.

      AFFIRMED IN PART; DISMISSED IN PART.




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