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
__________________________
W. Hunger, Assistant Attorney
_________

whom Frank
_____

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

States

Air") filed this

under the

damages action against

Federal Tort

2671-2180, claiming that

Claims Act,

The

1346,

Virgin Islands and that the Federal

Aviation Administration's (FAA) failure

responsible for

28 U.S.C.

it was unlawfully deprived of the right

to use seaplane ramps in the

it

the United

the company's

district court dismissed

to enforce the law makes

resulting

economic hardship.

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

___

U.S.C. app.

improper

agree

1486(a),1

rendering Sea

collateral attack

on the

Air's FTCA

complaint an

administrative process.

that the case must be dismissed,

alternative reason.

I. Background

49

We

but rely primarily on an

__________

The original

which struck the

and led

to the

passenger

air service

on St.

this case was

United States Virgin Islands in

demise of

Seeking to find

owned

protagonist in

the company that

between

a new airline

Thomas

and St.

Authority (VIPA)

in early

lease proposals.

One

Hurricane Hugo,

September 1989

had been

providing

the various

islands.

to utilize the seaplane

ramps it

and among

Croix,

the Virgin

1990 issued

Islands

a request for

of the eight companies that

Port

exclusive

responded was

____________________

Congress in

without substantive

1994

recodified the

change, at 49

Federal Aviation

Act,

40101-49105.

We,

U.S.C.

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

proposal

further

is

undisputed

that

VIPA's staff

considered

the

CAS

to be the most viable of the three bids recommended for

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

lease to

are

a Sea Air

VIPA board to

offer an exclusive

competitor, Caribbean Airboats,

Inc. (CAI),

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

with

to say

the outcome of

statute

that appellant

the bid

barring exclusive

Sea Air was

process, and,

lease agreements

navigation facilities, see 49 U.S.C. app.

___

sought access

VIPA

in

federal,

ultimately

to the contested ramps.

the Virgin

Islands

constitutional and

also proved

federal

Virgin

displeased

based on

a federal

for the use

of air

1349,2 unsuccessfully

Sea Air then sued CAI and

district court

Islands law.

unsuccessful, with

based

That

the court

on

action

ruling in

March

1992 that

VIPA was

entitled to

leasing arrangement with CAI.

enter into

an exclusive

See 800 F. Supp. at 304-05.

___

____________________

2 Section 1349(a) states, in relevant

no

exclusive

right for

the

use of

any

part: "There shall be

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

carrier certificate from the

in March 1991 without using

In

October of

that

FAA, and began Caribbean operations

the St. Thomas and St. Croix

year, Sea

Air's

president wrote

Secretary of Transportation Samuel Skinner

lawsuit pending against VIPA

inability

to use

the

air

and CAI.

two contested

ramps.

to

then

to inform him of

Allegedly because

seaplane ramps,

the

of its

appellant

encountered severe financial difficulties and voluntarily filed a

petition for bankruptcy under Chapter 11 in January 1992.

A month

Skinner and

later, responding to Sea Air's

other communications,

letter to Secretary

the FAA informed

the company

dispute informally had

failed, and

that efforts

to resolve the

that Sea Air

could file an administrative complaint against VIPA

pursuant

1992.

to 49 U.S.C.

It

app.

asserted that

1482.3

VIPA was in

barring exclusive

lease agreements

federal

see
___

funding,

unlawfully

U.S.C.

Sea

It is the

Air did so

violation of

for facilities

49 U.S.C.

interfered with

1305.4

Sea

1349(a),

Air's route

FAA's failure to

and

in March

federal law

that receive

that it

had

structure, see
___

act on that

49

still

____________________

3 Section 1482(a) states, in relevant part:

Any

person

Transportation

may
.

file
.

with

the

a complaint

in

Secretary
writing

respect to anything done

or omitted to be done

person in

of

chapter,

contravention
or of

any

any

provisions

requirement established

of
with

by any
of

this

pursuant

thereto. . . .

Section

1305

is

titled

"Federal

subsection (a)(1) states, in relevant part:

preemption,"

and

-4-

pending complaint

that underlies Sea Air's claim

for damages in

this action.

On

June 29,

1992,

converted

to Chapter

Secretary

of

"allow[ing] the

7.

Sea Air's

The

bankruptcy proceedings

next day,

Transportation Andrew

Card

Sea Air

accusing

were

wrote to then

the FAA

of

illegal conduct of the VIPA to continue, thereby

causing

the

Chapter

corrective action."

On March 4,

proceeding,"

and

urging

"immediate

See App. at 160, 163.

___

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

complaint.

to

negligent failure to

act on Sea

Air's administrative

The claim was denied three months later and, pursuant

the provisions of the

FTCA, Sea Air

subsequently filed this

lawsuit.

The district court dismissed the action

matter jurisdiction and for

relief

could be

granted.

for lack of subject

failure to state a claim

The

court held that,

upon which

pursuant to 49

____________________

[N]o

State

or political

interstate agency
more

States

regulation,

subdivision

or other political agency

shall enact
standard,

or

enforce

or other

of law relating to

services

air

subchapter

IV

of

carrier
this

rule,

having the

rates, routes, or

having authority

chapter

and no

of two or

any law,

provision

force and effect

of any

thereof

to

under

provide

air

transportation.

Sea Air asserted in its FAA complaint that

use of the

ramps "amount[s] as

VIPA's denying it the

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.

jurisdiction

1486,5 federal courts

to review the FAA's

of appeals

have exclusive

alleged failure to

act on Sea

Air's administrative complaint, and that an FTCA action

an improper collateral

would be

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

with

federal statute,

actionable

duties

under

challenged

conduct

was

on the FAA's alleged failure

and

the

federal

FTCA;

protected

statutes

and,

from

discretionary function exception, 28 U.S.C.

On

appeal,

Sea

Air

contends

that

do not

second,

suit

to comply

by

create

that

the

the

FTCA's

2680(a).

an

FTCA

action

is

compatible

with the

pending administrative process

objective -- to remedy the

damages

--

is outside

additionally disputes

because its

negligence of government actors

the scope

of

that process.

the alternative bases for

with

Appellant

dismissal noted

by the district court.

II. Discussion
__________

The analysis

in this

stages.

The first

whether

that statute

case

logically is

focuses on

bars

seeking relief through the

the

divided into

Federal Aviation

complainant

from

Act, and

simultaneously

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

two

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

addresses discretionary

challenge?

If,

as the

conduct

that is

district court

immunized

held, the

because it

from

legal

only way

to

challenge

its

the FAA's failure to take action on a complaint within

jurisdiction

is

through

direct

appeal

or

related

proceeding, such as mandamus, then the second stage will never be

reached.

If, however, federal law does not categorically

parallel tort suit, the

viability of the specific claim

bar a

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

for mandamus that had to be filed in the court of

court

with

decisions.

exclusive

jurisdiction

See 49 U.S.C. app.

___

Sea Air energetically

over

a petition

appeals -- the

appeals

from

FAA

1486(a).6

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.

points out that the FTCA confers jurisdiction

for damages

actions against federal

It

on district courts

actors based on

common law

____________________

Our review

jurisdiction

of

is de novo.
__ ____

finding

of

lack

of

subject

matter

Coventry Sewage Ass. v. Dworkin Realty

____________________
______________

Co., 71 F.3d 1, 3 (1st Cir. 1995).

___

-7-

negligence principles,

exception that would

significant,

damages

and emphasizes that the

exclude this

Sea Air

contends,

remedy, which is

FTCA contains no

case from its

that the

FTCA

scope.

It

action seeks

is

unavailable through the administrative

process.

We

decline to consider whether

inaction ever could be

It is well

the

based on FAA

cognizable, though we think

it unlikely.

established that the exclusive jurisdiction

courts

lawsuits

an FTCA claim

of appeals

to review

actions also

extends to

alleging FAA delay in issuing final orders.

See George
___ ______

Kabeller, Inc. v. Busey, 999

_______________
_____

FAA

given to

F.2d 1417, 1421

(11th Cir. 1993);

Telecommunications Research & Action

______________________________________

(D.C. Cir. 1984) ("TRAC").

v. FCC,
___

750 F.2d

70, 76

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

FAA's handling of complaints to the

The fact

that the FTCA does not

to limit review

scheme set out in

of the

1486(a).

explicitly exclude such a claim

_______

in no way serves to support its existence.

We

Air's

recognize, nonetheless, that there

contention that,

because

is some logic in Sea

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

FAA employees should

since

be able

the negligent conduct

to seek a

the FTCA was designed specifically

remedy under the

of

FTCA,

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

cf. Mace
___ ____

of medical certificate

v. Skinner,
_______

34 F.3d

may be brought

854, 859-60 (9th

against FAA);

Cir. 1994)

(no

federal question jurisdiction over actions against FAA only as to

"those classes

Act).

of claims"

Presumably,

court

could avoid

staying a timely

as the

D.C. Circuit

conflict

filed FTCA

administrative process.

We

reviewable under

with the

section 1486

suggested in

of FA

Beins, a
_____

administrative scheme

action pending the

outcome of

by

the

See Beins, 695 F.2d at 599.

___ _____

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

statutory duty in

United States to carry out a [federal]

the conduct

Sawyer, 47 F.3d 716,

______

of its own

affairs," Johnson
_______

727-28 (5th Cir. 1995) (en

__

v.

banc) (citation
____

____________________

8 As the
district

cases relied

court

unquestionably
rulings,

are

or for

complaints.

upon by

the United

make

clear,

federal

the

exclusive

forum

efforts

to

instigate

States and

appellate
for

appeals

action on

the

courts
of

FAA

pending

FAA

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).

whether this exclusive jurisdiction

process

automatically

forecloses

is

to review the administrative

a

elements of tort liability are present.

-9-

The open question

tort

suit,

even

if

all

omitted).

States,
______

See
___

also,
____

753 F.2d

e.g.,
____

Art-Metal-U.S.A., Inc.
_______________________

1151, 1157-60

United States, 567 F.2d

_____________

(D.C. Cir.

United
______

1985); Clemente
________

1140, 1149 (1st Cir. 1977);

United States, 697 F.2d 1362,

______________

v.

1365 (11th Cir.

v.

Sellfors v.
________

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

and FAA does

issue

of

not meet

of the Department of

that "private individual"

here is the United States'

Transportation and FAA, to

receive federal

statute that

rates, routes

oversight of

does not,

leases for aviation

U.S.C. app.

bars non-federal lawmaking relating

air carriers is a

At

take enforcement action under the

funding, 49

and services, id.

___

standard.

failure, through the Secretary

statute that prohibits exclusive

that

Transportation

at

1305(a).9

facilities

1349,

and the

to air carrier

The

fact that

peculiarly governmental function

of course, necessarily preclude FTCA

coverage, as the

Supreme Court

explained in Indian Towing Co. v.

__________________

350 U.S. 61, 64-65 (1955).

States

could

be liable

The Court held there that the United

under the

negligence in the operation of

is

United States,
_____________

FTCA

for the

Coast Guard's

a lighthouse, observing that

hornbook tort law that one who

"it

undertakes to warn the public

____________________

The complaint

additionally

invoked provisions

of

general scope that are less useful for Sea Air's argument.

-10-

more

of a danger and

thereby induces reliance must perform

his 'good

Samaritan' task in a careful manner," id..

___

No comparable

context,

however.

between the

state

common

law

What

would

concerns

regulatory

principle

is necessary

is at

is

attach

the

functions

of

care

F.3d at 899.10

FAA's

vis

compliance with federal laws

enforcing the exclusive

duty

play

"some

governmental employee[s] and the

circumstances," Myers, 17
_____

wholly

law

in

relationship

purely

private

The controversy

failure

to

vis

entity

that

and rules.

this

plaintiff to which

alleged

an

in

Its sole

lease prohibition is to

perform

is

here

its

out-of-

obligation in

cut off federal

funding.

302).

See DOT/FAA Order 5190.1A,

___

Although

10 (Enforcement) (App. at

the Secretary of Transportation or an authorized

representative has the discretion to seek an

__________

process

app.

to

barring further violation of

the FA Act,

1487(a), this optional regulatory

give rise to an enforceable

the unlawful conduct.

similar

basis

for

injunction or other

see 49 U.S.C.
___

remedy cannot be deemed

duty to any individual victim of

Sea Air has pointed to no case utilizing a

liability

in

any

of

the

relevant

jurisdictions.11
____________________

10 The

law

at issue

is

the state

relevant jurisdiction(s), here alleged

Puerto

Rico, the District of

or

local law

of

the

to be the Virgin Islands,

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

Sea Air's rights

and privileges,

designees could

act to do so, is

torts',

recognized by

State law

to enforce the
where only

statutes and

they and/or

their

the 'garden variety common law

and

the common

law, anywhere

within the jurisdiction of the United States."

-11-

In short, Sea

private

liable

persons

Air has

could not

for under local

1146, 1147 &

n.2 (9th

challenged a type

engage in,

and

law," Sky Ad, Inc.

____________

Cir. 1991) (quoting

of conduct

hence could

"that

not be

v. McClure, 951 F.2d

_______

C.P.Chemical Co.

v.

________________

United States,
_____________

rejecting

specific

810 F.2d 34 (2d Cir. 1987)).12

an FTCA

claim

behavior of

statute, liability to

in another

FAA

federal employees

As we observed in

context, "even

is required

where

by federal

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.

doctrine of negligence

Even

per se
___ __

in states that

based on

have a general

violation of

statutes,

courts have declined to

find this an adequate basis for

claim against the United States.

See Johnson v.
___ _______

716, 728-29 (5th

banc).
____

Cir. 1995) (en

__

action is "unavailable where

We

Sawyer, 47 F.3d
______

agree that an

1963)).

FTCA

'[t]he existence or nonexistence of

the claim' 'depends entirely upon Federal statutes.'"

(quoting United States v.
_____________

an FTCA

Id. at 728
___

Smith, 324 F.2d 622, 624-25

_____

(5th Cir.

Cf. Moody v. United States, 774 F.2d 150, 157 (6th Cir.
___ _____
______________

1985) (although
States

could

finding no actionable duty,

be held

because Tennessee

liable under

law exposes

holding that United

negligence per

se doctrine

private individuals to

liability

for violation of a federal regulation).

12

In Sky Ad, the

______

United States was

failure
rule.
from

plaintiff claimed, inter

_____

liable under

the FTCA for

alia, that the

____

the FAA's

alleged

to adhere to the procedures required to promulgate a new

951 F.2d at 1147.

its

own

case

legislative" powers
however,

is the

because
to issue

same:

governmental, meaning

Sea Air attempts to distinguish Sky Ad

_______

if the

it

involved

rules.

The

conduct is

"quasi-

uniquely

private party analogue,

the United States may not be sued under the FTCA.

-12-

FAA's

underlying principle,

challenged

there is no state

the

Caribbean,

including between the ramps at issue.

this authorization,

following Sea Air's fulfillment

prerequisites, imposed a duty on the FAA to

the approved routes.

It claims that

We think not.

of numerous

ensure its access to

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,

statutorily prescribed

the

non-exclusive

federal funding.

Sea

Air

has

recourse for

lease rules

acknowledged

that

VIPA's failure to

is for

the FAA

abide by

to cut

Further sanctions are discretionary.

the

off its

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

agency inaction.

helpless in

As the

the face of

serious violations

district court noted,

have pursued a writ of mandamus from the court of

e.g., TRAC,
____ ____

have

750 F.2d at 76.

provided

Sea Air

and

appellant could

appeals.

See,
___

Although such an approach would not

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
exclusive

The St.
lease

federal law. See

___

Croix

federal district

granted to

Sea

Air's

court
rival

Sea Air Shuttle Corp. v.

______________________

-13-

ruled that
did not

the

violate

Virgin Islands Port

____________________

We note,

observation

would

finally, our

that

the

FTCA's

serve as an alternative

action.

As

violating

the exclusive

funds.

Id.
___

agreement with the

we

have

discretionary

See supra at 10-11.

___ _____

function exception

basis for dismissal

explained,

lease

district court's

the

statutory

prohibition is

Air, and it

Affirmed.
________

No costs.
_________

for

federal

Any further remedy is discretionary.

cannot be

failure to do so.

penalty

loss of

The government had no obligation to secure use

for Sea

of Sea Air's

held liable in

of the ramps

damages for

its

____________________

Auth., 800 F.
_____
motion

Supp. 293, 303-05 (D.V.I. 1992).

Sea Air filed a

for reconsideration, which was denied, but did not appeal

the ruling.

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