PS4-081                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-1984
                                       ___________

                              ARTHUR BELLOCCHIO;
                             CARMELITA BELLOCCHIO,
                                            Appellants

                                             v.

       NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION;
             NEW JERSEY TURNPIKE; PHILADELPHIA AIRPORT;
    FEDERAL AVIATION ADMINISTRATION; TOWNSHIP OF MOUNT LAUREL;
            MOUNT LAUREL MUNICIPAL UTILITY AUTHORITY;
         DELAWARE VALLEY REGIONAL PLANNING COMMISSION;
                    JOHN DOE; JOHN DOE; JOHN DOE
                  ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Civil Action No. 1-13-cv-06244)
                     District Judge: Honorable Jerome B. Simandle
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 24, 2015
          Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: March 26, 2015)
                                     ___________

                                        OPINION*
                                       ___________



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Carmelita Bellocchio and Arthur Bellocchio, wife and husband, appeal pro se

from an order of the United States District Court for the District of New Jersey, which

dismissed their complaint on motions of the various defendants. We will affirm the

District Court’s judgment.

       The Bellocchios originally filed a complaint in state court against seven

defendants, alleging that their home and property were disturbed by noise and air

pollution from the nearby turnpike and from overhead flights from the Philadelphia

airport. They alleged that the disturbances had increased due to changes in flight paths,

deforestation, and the construction of a solar farm. The complaint was removed to

federal court and all seven defendants filed motions to dismiss. The District Court

granted all of the motions, some with prejudice, and some without prejudice. The

Bellocchios appealed.

       We first consider whether we have appellate jurisdiction, and if so, what the scope

of that jurisdiction is. Pursuant to 28 U.S.C. § 1291, we have jurisdiction to review final

orders of district courts. “Generally, an order which dismisses a complaint without

prejudice is neither final nor appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.” Borelli v. City of Reading, 532 F.2d 950,

951 (3d Cir. 1976). The Bellocchios appealed rather than seeking leave to amend their

complaint in the District Court, and have informed this Court that they are “seeking a

reversal of the decision made on [our] complaint and a decision to send this back to the
                                             2
court to discuss a resolution or continue to trial with jury to resolve disputed facts as

requested in [our] initial complaint.” We thus conclude that the order is final and

appealable, as the Bellocchios have indicated an intent to stand on their complaint. See

Borelli, 532 F.2d at 951-52; see also Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d

Cir. 2007) (finding finality when plaintiff did not seek to amend complaint to address any

pleading deficiencies noted by defendant, and repeatedly asserted that allegations

contained in complaint were legally sufficient).

       As for the scope of the appeal, although only Carmelita Bellocchio signed the

notice of appeal, we consider it “filed on behalf of the signer and the signer’s spouse” as

it does not “clearly indicate[] otherwise.” See Fed. R. App. P. 3(c)(2). However,

Carmelita Bellocchio may not represent her husband in federal court. See Osei-Afriyie v.

Med. Coll. of Pa., 937 F.2d 876, 882 (3d Cir. 1991); Iannaccone v. Law, 142 F.3d 553,

558 (2d Cir. 1998). And because Arthur Bellocchio did not sign the opening brief, we

review the District Court’s order only to the extent it adjudicated claims brought by

Carmelita Bellocchio in her own right.1

       We review de novo the District Court’s order granting Defendants’ motions to

dismiss. See McMullen v. Maple Shade Twp., 643 F.3d 96, 98 (3d Cir. 2011). In order

to survive motions to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its


1
 All further references to “Bellocchio” in this opinion refer to Carmelita Bellocchio,
unless otherwise specified.
                                             3
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). In deciding whether the District Court’s dismissal was

proper, we “accept as true the factual allegations in the complaint and all reasonable

inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

       We have carefully reviewed the record and the parties’ arguments on appeal, and

we discern no error in the District Court’s comprehensive analysis. As an initial matter,

Bellocchio’s claims for injunctive relief against all Defendants are moot, as the

Bellocchios moved from their home. We will briefly note why the District Court was

correct to dismiss the complaint as to the remaining claims.

       As to the claims against the Federal Aviation Administration (“FAA”), we agree

with the District Court that to the extent Bellocchio was challenging the FAA’s approval

of projects at the Philadelphia Airport, the District Court lacked jurisdiction because

review of those decisions is “subject to 49 U.S.C. § 46110(a)’s grant of exclusive

jurisdiction to the courts of appeals.” Dist. Ct. Op. at 16-17; see also Blitz v. Napolitano,

700 F.3d 733, 740-43 (4th Cir. 2012).2 The Court also properly determined that to the

extent Bellocchio was asserting that the excess noise from aircraft reduced the value of

their home to the extent that it was a “taking,” such a claim against the FAA needed to be

brought in the Court of Federal Claims, pursuant to 28 U.S.C. § 1491(a)(1). See E.


2
 We also agree that a challenge to those decisions would be time-barred. See 49 U.S.C.
§ 46110(a) (petition to review final order of FAA must be filed within 60 days of the
order’s issuance).

                                              4
Enters. v. Apfel, 524 U.S. 498, 520 (1998) (claim for compensation under Takings

Clause must be brought to Court of Federal Claims in first instance unless statute

provides otherwise). And to the extent Bellocchio intended to bring a tort claim against

the FAA, the Court lacked jurisdiction because she failed to first file a claim with the

agency, as required by the Federal Tort Claims Act. See 28 U.S.C. § 2675(a); see also

McNeil v. United States, 508 U.S. 106, 113 (1993).

         The District Court properly determined that Bellochio’s claims against the

Philadelphia Airport should be construed as claims against the City of Philadelphia, as

the airport is not a separate entity under Philadelphia’s Home Rule Charter. See 5 Phila.

Code § 4-500; 53 Pa. Stat. Ann. § 16257. As the Court noted, Bellochio’s claim that the

City violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321-4370h,

was misplaced, as the City is not a federal agency subject to NEPA’s regulation, see id., §

4332.3 The Court ably explained that the FAA had approved the City’s airport projects,

and that any claim that those projects violated NEPA should have been addressed to the

FAA through the process mentioned above. As for her constitutional claims against the

City, Bellocchio did not satisfy the requirements of Monell v. Department of Social

Services, 436 U.S. 658 (1978), which requires a plaintiff to plead that a policy, custom,

or practice led to the alleged constitutional violations, as there is no supervisory liability




3
    The same is true for the other Defendants, aside from the FAA.

                                               5
in civil rights actions brought pursuant to 42 U.S.C. § 1983.4 And to the extent

Bellocchio sought to bring a tort claim against the City, the City is statutorily immune

from tort claims, with exceptions not relevant here. See 42 Pa. Cons. Stat. Ann. § 8541.

       As for the Delaware Valley Regional Planning Commission, we agree with the

District Court that Bellocchio failed to assert any distinct claims against the Commission,

and that the Commission is, in any event, immune from suit pursuant to N.J. Stat. Ann.

§§ 59:2-1, 59:2-3.a. We also agree that the New Jersey Department of Environmental

Protection (“NJDEP”) is immune from suit in federal court pursuant to the Eleventh

Amendment. See MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir.

2001) (state’s Eleventh Amendment immunity extends to state agencies). Further, as for

her tort claims against NJDEP and the remaining Defendants from New Jersey, there is

no evidence that Bellocchio satisfied the provisions of the New Jersey Tort Claims Act

for making claims against public entities. See N.J. Stat. Ann. § 59:8-3.

       Finally, to the extent Bellocchio sought to bring claims under New Jersey statutory

law, the New Jersey No Net Loss Compensatory Reforestation Act, N.J. Stat. Ann.

§ 13:1L-14.1 to -14.4, does not provide a private cause of action for a loss caused by

removal of trees on State property. And regulations interpreting the New Jersey Noise

Control Act, N.J. Stat. Ann. § 13:1G-1 to 13:1G-23, explicitly exempt claims based on

noise from public roadways. N.J. Admin. Code § 7:29-1.5(a)(9).


4
 The Bellocchios did not name any individuals as defendants, aside from John Doe
defendants that were later dismissed.
                                          6
      For the foregoing reasons and those set forth by the District Court, we will affirm

the District Court’s judgment.




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