Krauss et al v. Federal Aviation Administration et al

Filing 53

Order denying 11 motion to remand; order of dismissal without leave to amend. The court denies as moot 38 5 10 27 the motions to dismiss and the requests for judicial notice. (hrllc1S, COURT STAFF) (Filed on 3/24/2016)

E-Filed 3/24/16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KIRK J. KRAUSS, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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v.
FEDERAL AVIATION
ADMINISTRATION, et al.,

Case No. 15-cv-05365-HRL
ORDER DENYING MOTION FOR
REMAND
ORDER OF DISMISSAL WITHOUT
LEAVE TO AMEND
Re: Dkt. Nos. 5, 10, 11, 27, 38

Defendants.

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Kirk and Anna Krauss (“Plaintiffs”), pro se, sue the Federal Aviation Administration

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(“FAA”), the City and County of San Francisco (“San Francisco”), the City of Oakland

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(“Oakland”), and the City of San Jose (collectively “Defendants”).

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Each party expressly

consented to magistrate judge jurisdiction.
Plaintiffs allege Defendants changed local commercial airline flight paths based on a plan
the FAA developed and implemented: the Northern California Optimization of Airspace and
Procedures in the Metroplex (“NorCal OAPM”). Plaintiffs assert the flight-path changes have
increased the noise level near their home. They also argue the increased air traffic near their home
increases the risk that a plane will crash and cause a dangerous wildfire. Plaintiffs therefore bring

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four claims against Defendants: (1) “Defendants collectively have harmed Plaintiffs” by

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“deploy[ing]” flight-path changes that constitute a private nuisance, Dkt. No. 1 at 14; (2) the new

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flight paths “Defendants deployed” also constitute a harmful public nuisance, Dkt. No. 1 at 14-15;

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(3) “Defendants” were negligent because they “deployed” the harmful flight-path changes without

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“adequately considering the effects,” Dkt. No. 1 at 15; and (4) this court should issue a declaratory

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judgment that “validat[es] Plaintiffs’ right” to live under the same flight-path “conditions” that

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existed when Plaintiffs purchased their home twelve years ago, Dkt. No. 1 at 16-17.
Plaintiffs initially filed their claims in the California Superior Court of Santa Cruz County.

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The FAA removed the case to this court under both 28 U.S.C. § 1441, the general-purpose

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removal statute, and 28 U.S.C. § 1442, a removal statute that may be used only by federal

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defendants. Plaintiffs move for remand and the FAA opposes.
Each defendant moves to dismiss. The FAA argues the Federal Tort Claims Act (“FTCA”)

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governs the three tort claims and that, absent the exhaustion of administrative remedies, the FTCA

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does not waive federal sovereign immunity to those claims. Similarly, the FAA argues the

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declaratory-relief claim is “procedural only” and cannot, by itself, defeat sovereign immunity.

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The non-federal defendants argue: (1) Plaintiffs make vague, implausible allegations of

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misconduct—“collective[]” compliance with the FAA’s mandate—rather than particular causal

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allegations against particular non-federal defendants; and (2) the Federal Aviation Act “preempts

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United States District Court
Northern District of California

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the field of noise regulation insofar as it involves controlling the flight of aircraft.” Oakland and

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San Francisco also argue that California’s Government Claims Act, an analog to the FTCA, bars

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tort claims against public entities until the claimants exhaust administrative remedies. Finally, San

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Francisco argues this court lacks jurisdiction over this case because the Federal Aviation Act gives

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“exclusive jurisdiction” to federal circuit courts when a litigant seeks to “amend, modify, or set

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aside” the FAA’s finalized domestic aviation regulatory decisions. 49 U.S.C. § 46110. Plaintiffs

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request judicial notice of a list of air carriers certified by the Department of Transportation. San

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Francisco requests judicial notice of the demurrer San Francisco filed in the state-court case.

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The court read the parties’ briefs, conducted its own research, and held a hearing on March

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1, 2016. Defendants appeared for the hearing; Plaintiffs did not. The motion for remand is

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denied. This case is dismissed for lack of subject-matter jurisdiction. The court denies as moot

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the motions to dismiss and the requests for judicial notice.

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Discussion

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Plaintiffs argue this case must be remanded because: (1) § 1441 does not authorize

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removals where, as here, the court lacks original subject-matter jurisdiction over the complaint; (2)

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§ 1442 does not authorize removal unless the federal defendant is a natural person; (3) § 1442

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does not authorize removal unless the federal defendant’s underlying conduct involved “the

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apprehension or punishment of criminals or the collection of . . . revenue”; and (4) § 1442
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removals must be supported by a colorable federal defense, and the FAA has raised only an

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implausible sovereign immunity defense. Dkt. No. 11 at 7-9. The FAA responds with two

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arguments: (1) the Federal Tort Claims Act (“FTCA”) gives federal district courts “exclusive

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jurisdiction” over tort claims that seek damages against federal defendants, and therefore this court

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has original jurisdiction to adjudicate the FAA’s FTCA defense, Dkt. No. 20 at 4; and (2) § 1442

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is broadly construed in favor of removal and therefore United States agencies have the

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“unilateral[]” right to remove any cases against them, Dkt. No. 20 at 5.
Removal was proper under § 1442. True, the text of the statute appears to contemplate

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removal only when the underlying conduct involves the “apprehension or punishment of criminals

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or the collection of . . . revenue,” 28 U.S.C. § 1442(a)(1), but the Supreme Court has “broadly”

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United States District Court
Northern District of California

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interpreted § 1442 to permit removal when a federal defendant “can raise a colorable defense”

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under federal law, Willingham v. Morgan, 395 U.S. 402, 406-07 (1969) (discussing the importance

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of permitting federal defendants to raise their federal defenses in federal courts). This broad

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interpretation of § 1442 permits removal even if the underlying conduct does not involve the

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apprehension or punishment of criminals or the collection of revenue. E.g., Durham v. Lockheed

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Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006) (holding Lockheed Martin Corporation, in its

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capacity as a contractor hired by the federal government to build planes, was a federal officer

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entitled to removal under § 1442).

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Likewise, even though an older version of § 1442 authorized only federal officers to

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remove the cases against them, Congress “amended the law to” extend a similar removal right to

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the United States and its agencies. Rodas v. Seidlin, 656 F.3d 610, 616-17 (7th Cir. 2011). The

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present version of § 1442 permits, inter alia, the “removal of a civil action” brought against a

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federal “agency” for “any act under color of . . . authority claimed under any Act of Congress[.]”

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The FAA acted under its federal authority to set policies “for the use of . . . navigable airspace.”

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49 U.S.C. § 40103. The FAA has raised a colorable sovereign-immunity defense that partially

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depends upon the FTCA: Plaintiffs seek money damages for their tort claims, but the FTCA does

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not waive sovereign immunity in these circumstances because Plaintiffs have not exhausted their

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administrative remedies, and therefore sovereign immunity bars Plaintiffs’ torts. Dkt. No. 20 at 4.
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The court rules that § 1442 authorized the FAA to remove this case so the FAA could present its

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colorable federal defense to a federal court. The motion for remand is denied.
Notwithstanding the propriety of removal, the court shall not rule on the FAA’s sovereign-

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immunity defense because this court lacks jurisdiction over Plaintiffs’ claims. Congress “may

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prescribe . . . the courts” which may “review . . . administrative orders[.]” City of Tacoma v.

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Taxpayers of Tacoma, 357 U.S. 320, 336 (1958). If Congress grants exclusive jurisdiction to a

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federal court of appeals over requests to “affirm, modify, or set aside” an administrative order,

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then objections to the order and objections to third-party compliance with the “terms” of the order

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“must be made in the [c]ourt of [a]ppeals or not at all.” Id. Accordingly, when circuit courts have

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exclusive jurisdiction to review an administrative order, a plaintiff may not “collateral[ly] attack”

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United States District Court
Northern District of California

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the lawfulness of the order in a different court by claiming that a third-party’s mere compliance

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with the order violated the law. See id. at 341 (state-law claims against a city for the city’s

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compliance with the “terms” of a federal license were “impermissible collateral attacks” against

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the lawful administrative order that issued the license).

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The Federal Aviation Act gives the federal circuit courts “exclusive jurisdiction” over

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requests “to affirm, amend, modify, or set aside” the FAA’s finalized domestic aviation

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regulations. 49 U.S.C. § 46110; Americopters, LLC v. Federal Aviation Administration, 441 F.3d

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726, 732 (9th Cir. 2006). The Federal Aviation Act therefore “preempt[s]” a district court’s

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federal-question jurisdiction over claims that challenge the legality of the FAA’s finalized

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regulatory orders. Crist v. Leippe, 138 F.3d 801, 803 (9th Cir. 1998) (citing Clark v. Busey, 959

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F.2d 808, 811 (9th Cir. 1992)). A district court may still entertain claims that “broadly challenge[]

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the constitutionality of” the procedures that led to the issuance of FAA orders, Mace v. Skinner, 34

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F.3d 854, 858 (9th Cir. 1994), but district courts nevertheless lack jurisdiction over “damages

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claims” against the FAA that are “inescapably intertwined” with a specific FAA order,

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Americopters, 441 F.3d at 736 (quoting Crist, 138 F.3d at 803 and Mace, 34 F.3d at 858 (9th Cir.

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1994)). Otherwise, a plaintiff could easily use damages claims to “bypass” the “exclusive forum”

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Congress has selected for the “procedural and substantive” review of the FAA’s finalized

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regulatory decisions—the federal circuit courts. Mace, 34 F.3d at 858 (quoting Green v. Brantley,
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981 F.2d 520, 521 (11th Cir. 1993)). A damages claim is an “inescapably intertwined” collateral

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attack against an FAA order when the resolution of the claim depends “on the merits of [an]

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individual situation” and the claim does not “broad[ly] challenge” the constitutionality of the

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FAA’s actions. Americopters, 441 F.3d at 736.
Each of Plaintiffs’ claims against the non-federal defendants collaterally attacks the FAA’s

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decision to implement the NorCal OAPM plan. The federal circuit courts are the “exclusive

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forum[s]” for the resolution of Plaintiffs’ “procedural and substantive” objections to the FAA’s

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finalized regulatory decision, see Mace, 34 F.3d at 858 (quoting Green, 981 F.2d at 521), and any

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“objections or claims” that challenge the lawfulness of a third-party’s mere compliance with the

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“terms” of the NorCal OAPM constitute “impermissible collateral attacks” against the lawfulness

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United States District Court
Northern District of California

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of the FAA’s decision to implement the NorCal OAPM, see City of Tacoma, 357 U.S. at 337, 341.

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Each claim against each non-federal defendant alleges the defendant unlawfully harmed Plaintiffs

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by “deploy[ing]” the new NorCal OAPM flight paths mandated by the FAA, Dkt. No. 1 at 14-17,

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and this court lacks jurisdiction over these collateral attacks against the lawfulness of the FAA’s

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order. A contrary conclusion would permit litigants to “bypass” the “exclusive” circuit-court

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“forum[s]” that Congress selected for the “substantive” review of whether the FAA’s finalized

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regulatory orders comport with the law. See Mace, 34 F.3d at 858 (quoting Green, 981 F.2d at

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521); see also Americopters, 441 F.3d at 736. The undersigned therefore reads 49 U.S.C. § 46110

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to deprive district courts of jurisdiction over Plaintiffs’ claims against the non-federal defendants.

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Plaintiffs’ tort claims against the FAA also collaterally attack the FAA’s final order. These

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claims do not “broadly challenge[]” the constitutionality of the FAA procedures that led to the

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issuance of administrative orders. Mace, 34 F.3d at 858; see Americopters, 441 F.3d at 736

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(quoting Mace, 34 F.3d at 858). Rather, Plaintiffs’ state-law claims depend squarely on the merits

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of the FAA’s decision to mandate the use of the NorCal OAPM flight paths. Dkt. No. 1 at 14-17.

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These “damages claims” are therefore “inescapably intertwined” with “the merits of [an]

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individual situation”—the merits of the FAA’s decision to enforce the NorCal OAPM flight

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paths—and this court lacks jurisdiction over Plaintiffs’ collateral attacks against the FAA’s final

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order. Americopters, 441 F.3d at 736.
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Finally, the court lacks jurisdiction over the declaratory-judgment claim against the FAA.

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Plaintiffs ask the court to “restore” the volume of air-traffic that used to exist near Plaintiffs’ home

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based on the argument that Plaintiffs have a “right” to enjoy the same degree of “peace, quiet, and

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safety” that existed before the FAA issued its order. Dkt. No. 1 at 16-17. This claim invites the

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court to directly invalidate a final regulatory order made by the FAA. The undersigned considers

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it clear that the Ninth Circuit and the District of Columbia Circuit are the “exclusive” forums

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where Plaintiffs may seek review of whether the FAA’s decision should be “set aside” as

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unlawful. 49 U.S.C. § 46110; Americopters, 441 F.3d at 732. Indeed, in 2014 several interested

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parties petitioned the Ninth Circuit under § 46110 to set aside the FAA’s decision to implement

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the NorCal OAPM flight-path changes, and the Ninth Circuit continues to exercise jurisdiction

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United States District Court
Northern District of California

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over that litigation. Lyons et al. v. FAA et al., Case No. 14-72991.

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The court notes San Francisco raised § 46110 in a motion to dismiss for failure to state a

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claim rather than a motion to dismiss for lack of jurisdiction. Regardless, a federal district court

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has an affirmative duty to dismiss any case over which the court lacks subject-matter jurisdiction.

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Fed. R. Civ. P. 12(h)(3). This court lacks subject-matter jurisdiction over each claim raised

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against each defendant in this case.

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jurisdictional defects in this case by amending the claims.

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Plaintiffs would not be able to cure the fundamental

Conclusion

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The motion to remand is denied because the FAA properly removed this case under 28

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U.S.C. § 1442 on the basis of a colorable federal defense. The court lacks jurisdiction over each

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of Plaintiffs’ claims against the non-federal defendants because those claims collaterally attack the

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FAA’s decision to implement the NorCal OAPM flight paths. The court lacks jurisdiction over

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the tort claims against the FAA; those claims collaterally attack the FAA’s regulatory order

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because they are inescapably intertwined with the merits of the order. The court also lacks

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jurisdiction over the declaratory-judgment claim against the FAA; only the Ninth Circuit and the

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District of Columbia Circuit have original jurisdiction to review whether to set aside the FAA’s

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order as unlawful. The case is dismissed without leave to amend. The motions to dismiss and the

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requests for judicial notice are denied as moot.
IT IS SO ORDERED.
Dated: 3/24/16

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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