Opinion
Case No. 8:05-cv-1277-T-24EAJ.
February 9, 2006
ORDER
This cause comes before the Court on Defendant's Motion to Dismiss (Doc. No. 5). Plaintiff has filed a response in opposition thereto (Doc. No. 12). I. Factual Background and Procedural History
The Court notes that Defendant also filed a motion for leave to file a reply to Plaintiff's response in opposition to Defendant's motion to dismiss (Doc. No. 13) which was subsequently withdrawn (Doc. No. 20).
Plaintiff, William M. Bruckner, Jr., d/b/a/ Florida Aerial Advertising, operates an aerial advertising business that utilizes single engine aircraft to tow banners displaying various types of communication in the form of both words and pictures. Specifically, an aerial banner is towed behind an aircraft as it flies over pre-designated areas so that viewers on the ground below may receive the intended communication (¶ 2).
Defendant, the County of Pinellas, owns and operates the St. Petersburg Clearwater International Airport ("PIE"). PIE is classified as a primary airport and is the base of operation for multiple types of aircraft (¶ 15). David Metz ("Metz") is the acting Airport Executive Director (¶ 15). Plaintiff alleges that Federal Aviation Administration ("FAA") records indicate that the Defendant "is required to operate the airport for the use and benefit of the public and to make available to all types, kinds, and classes of aeronautical activity on reasonable terms, and without unjust discrimination, access to and use of the airport" (¶¶ 16 and 17).
Florida Aerial Advertising flies aircraft towing banners over Pinellas, Manatee, Sarasota, Pasco, and Hillsborough counties (¶ 14). Plaintiff alleges that the majority of his advertising clients hire Florida Aerial Advertising to fly their aircraft adjacent and parallel to the shore of Clearwater Beach and other populated outdoor venues (¶ 14). Plaintiff further alleges that "[t]he banner towing performed by Florida Aerial Advertising is an act of pure commercial speech" (¶ 2).
During 1999, Defendant offered to enter into an agreement with Plaintiff entitled "PERMIT FOR COMMERCIAL BUSINESS AT AIRPORT" (hereinafter "Proposed Permit"), that would permit Plaintiff to conduct banner towing operations from PIE (¶ 20 and Exhibit B). Plaintiff alleges that the terms of the Proposed Permit were "unconscionable and oppressive" and calculated to deter Plaintiff from accepting (¶¶ 21-23). Plaintiff then began negotiating with Defendant in an effort to modify the terms of the Proposed Permit (¶ 24). Around that time, Plaintiff alleges that Defendant "embarked on a course of conduct to have Banner-towing operations at PIE unjustifiably declared unsafe" (¶ 24). Specifically, Plaintiff alleges that Metz solicited letters from Air Traffic Controllers at PIE stating that, "in their `opinion,' Banner-towing operations would compromise the safety of other operations in use at PIE" (¶¶ 24-26 and Exhibit C) and "sought and obtained the approval of the FAA Flight Services District Office Tampa manager Charles V. Nolan to confirm his intention to deny Plaintiff BRUCKNER the right to operate at PIE" (¶ 28 and Exhibit D). On February 28, 2001, Metz sent a letter to Plaintiff denying Plaintiff's request to conduct banner towing operations at PIE (¶ 30 and Exhibit E).
Plaintiff alleges "[b]ased on information and belief the Federal Aviation Administration Flight Standards organization conducted an Aeronautical Study of PIE and determined that the unobstructed area, generally East of the touchdown zone of runway 17 Left, was adequate for Banner-tow operations at PIE" (¶ 19). However, it is unclear to this Court when this study occurred.
When a plaintiff refers to documents in a complaint that are central to plaintiff's complaint, a court may consider the documents as part of the pleading for the purposes of a motion to dismiss. See Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
On or about March 13, 2001, Defendant, by and through its Pinellas County Board of County Commissioners ("BOCC"), adopted Resolution No. 01-45 which prohibits banner-towing operations at PIE. Resolution No. 01-45 states in relevant part:
Banner-towing operations are hereby prohibited at the St. Petersburg-Clearwater International Airport. For purposes of this Resolution `Banner-towing' operations shall include all operations involving the pickup or drop off of a towed banner by an aircraft at said Airport
(¶¶ 3, 31 and Exhibit A).
Thereafter, Plaintiff filed a complaint against PIE under FAA Rules of Practice for Federally-Assisted Airport Proceedings, 14 C.F.R. pt. 16 (hereinafter "FAA Complaint"). The FAA Complaint alleged that "following a vote by the County of Pinellas Commission on March 13, 2001, the Airport does not allow any aerial advertising on the airport for alleged safety reasons" and that PIE was "violating 49 U.S.C. § 47107(a)(1), which requires the airport sponsor to make the Airport available to the public on reasonable terms and without unjust discrimination" (Doc. No. 1, Exhibit F, p. 1). On April 6, 2001, the National Air Traffic Controllers Association ("NATCA"), PIE Local, notified PIE that in their opinion, "a banner towing operation could not be conducted safely at this airport" (¶ 33 and Exhibit G). On December 18, 2003, the FAA dismissed Plaintiff's FAA Complaint against PIE and issued a sixteen page Director's Determination ("Director's Determination") that "found that PIE was not currently then in violation of the applicable federal law and its federal grant and surplus obligations" (¶ 34 and Exhibit F). As part of the Director's Determination, the FAA considered safety analyses and determinations which were conducted between December 15, 2000 and April 11, 2003, with respect to banner towing activities at PIE (Doc. No. 1, Exhibit F, pp. 12-14). The Director's Determination included the following language with respect to Plaintiff's right to appeal:
The Court notes that while Plaintiff references filing a true and correct copy of the FAA Complaint as Exhibit F, he really filed a copy of the December 18, 2003, Director's Determination. From a review of the Director's Determination, it appears that Plaintiff filed his FAA Complaint on April 30, 2003 (Doc. No. 1, Exhibit F, p. 10).
The Court notes that between April 2, 2001, and the filing of his FAA Complaint, Plaintiff apparently requested the FAA address the issue of banner-towing operations at PIE. A summary of those attempts are contained in the Director's Determination (Doc. No. 1, Exhibit F, pp. 8-10).
Any party to this proceeding adversely affected by the Director's Determination may appeal this initial determination to the FAA Associate Administrator for Airports pursuant to 14 CFR 16.33(b) within thirty (30) days after service of the Director's Determination.
Plaintiff did not appeal the Director's Determination.
During 2004, Plaintiff once again requested that the FAA address the issue of banner-towing operations at PIE (¶¶ 41-43 and Exhibits H — J). Thereafter, in early 2005, Plaintiff alleges that "pursuant to new FAA policies known as the `FAA Consumer Service Initiative'" he contacted "Orlando FAA District Offices and requested a second opinion of the suitability of PIE for banner towing" (¶ 44). On January 26, 2005, the FAA Orlando Flight Standards District Office (hereinafter "FSDO") conducted a suitability survey of PIE to "evaluate whether or not banner-towing operations could be conducted safely at PIE." On February 23, 2005, the FAA Orlando FSDO wrote a letter to Plaintiff in which it advised, "we have determined that at this time banner-towing operations can be conducted safely at the St. Petersburg/Clearwater International Airport (PIE)" (¶¶ 45-48 and Exhibit K). On April 6, 2005, a credentialed FAA Aviation Safety Inspector (hereinafter "ASI") from the FAA Orlando FSDO issued a statement confirming it could not identify any hazard with the simultaneous operation of banner-towing fixed wing aircraft and "lighter than air" aircraft (¶¶ 49-51 and Exhibit L).
Plaintiff alleges that Resolution No. 01-45 "creates an unconstitutional prohibition and/or restraint on commercial speech without protecting any legitimate government interest" and that Defendant "has engaged in a systematic course of conduct to prevent BRUCKNER from accessing his right to use the St. Petersburg-Clearwater International Airport for legitimate business and commercial activities that involve commercial speech" (¶¶ 4 and 5). Plaintiff further alleges that Defendant is depriving Plaintiff of "the guarantees under federal law to operate his Banner-towing operation at the airport on reasonable terms and without unjust discrimination " and that Defendant is in violation of 14 C.F.R. pt. 152, App. D (¶¶ 6 and 12).
In his Verified Complaint (hereinafter "complaint"), Plaintiff seeks declaratory and injunctive relief with respect to Resolution No. 01-45. Plaintiff asserts six counts against Defendant: Count I — The Challenged Legislation Violates the First Amendment; Count II — The Challenged Legislation Violates the Equal Protection Doctrine; Count III — The Challenged Legislation Fails to Provide Adequate Alternative Avenues of Communication; Count VIII — The Challenged Legislation Is a Violation of the Police Power and Fails to Substantially Advance Any Government Interest; Count IX — Damages; and Count X — Entitlement to Attorney's Fees Pursuant to 42 U.S.C. § 1988.
Plaintiff omits Counts IV — VII from his complaint.
Since the filing of Defendant's motion to dismiss and Plaintiff's opposition thereto, the parties filed additional documentation in support of their relative positions. Specifically, Plaintiff filed an FAA Memorandum dated November 21, 2005 (hereinafter "FAA Memorandum") (Doc. No. 18). The FAA Memorandum states that on October 18, 2005, the Atlanta FSDO conducted a special inspection at PIE to determine if banner tow operations could be conducted safely. The FAA Memorandum concludes that:
These filings were not at the direction or request of the Court.
Aeronautical Study No. 2005-ASO-668-NRA, St. Petersburg-Clearwater (PIE), Florida.
As a result of the inspection, it has been determined that banner tow operations could be conducted safely at the PIE airport with the Airport Manager's approval and a Letter of Agreement between Air Traffic Control and the banner tow operator. The proposed area for the banner tow operations is sufficient to provide the minimum recommended distance from the nearest taxiway or runway in accordance with current FAA guidance.
Defendant filed the Declaration of Charles Erhard ("Erhard"), Division Manager for the Airports Compliance Division of the FAA's Office of Airport Safety and Standards, dated September 16, 2005 (Doc. No. 19). The Airports Compliance Division holds primary responsibility for interpreting policies and resolving matters that involve the federal obligations of airport sponsors (Doc. No. 19, ¶ 4). Erhard states that:
[R]ecords of the Airports Compliance Division show that the subject of banner-towing at St. Petersburg-Clearwater Airport (PIE) was addressed in FAA Docket No. 16-03-1, Florida Aerial Advertising v. St. Petersburg-Clearwater International Airport, and that a Director's Determination was entered on December 18, 2003 determining that PIE was not in violation of applicable Federal law and its Federal grant and surplus property obligations in its prohibitions of all banner-towing operations at PIE.
(Doc. No. 19, Erhard Decl., ¶ 5). Erhard further states that "[r]ecords show that the December 18, 2003 Director's Determination was never appealed . . . and, thus the Director's Determination is the FAA's final decision on this matter in accord with FAA regulations" (Doc. No. 19, Erhard Decl., ¶ 6). Erhard concludes that "[a] new finding by a FAA Flight Standards District Office based upon the same subject matter would not reopen the case. Rather, the Complainant must file a new Part 16 Complaint to have this matter reconsidered" (Doc. No. 19, Erhard Decl., ¶ 7).
II. Defendant's Motion to Dismiss
Defendant moves to dismiss Plaintiff's claims based on lack of subject matter jurisdiction. Specifically, Defendant argues that original subject matter jurisdiction lies with the FAA, there is no private right of action under 49 U.S.C. § 47101, et seq., and Plaintiff's first amendment claim is a collateral attack upon an administrative order and is barred as a matter of law. Defendant further argues that Plaintiff's complaint fails to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) since it is barred by the doctrine of administrative res judicata.
A. Standard of Review Pursuant to Rule 12(b)(1)
A motion to dismiss based on lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) comes in two forms: "facial attacks" and "factual attacks." See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). "`Facial attacks' on the complaint require the court to merely look to see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Id. at 1529 (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). However, "factual attacks" challenge "the existence of subject matter in fact, irrespective of the pleadings, and matters outside the pleading, such as testimony and affidavits, are considered." Id.
When the attack is factual:
[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.Pro. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegation, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.Id. (citation omitted).
Normally, if a factual attack on subject matter jurisdiction also implicates an element of the cause of action:
[T]he proper course of action for the district court . . . is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case . . . This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge
to
the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place great restrictions on the district court's discretion.Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (citation omitted). However, in the present case, Defendant's factual attack does not implicate an element of Plaintiff's causes of action.
B. Discussion
The present case involves a factual attack in that Defendant claims that original jurisdiction lies with the FAA and that there is no private right of action under 49 U.S.C. § 47101, et seq. This Court agrees with Defendant that it lacks subject matter jurisdiction over Plaintiff's claims.
1. The FAA Previously Decided the Gravamen of Plaintiff's Complaint
On February 28, 2001, Metz sent a letter to Plaintiff denying Plaintiff's request to conduct banner towing operations at PIE. Thereafter, on March 13, 2001, the Pinellas BOCC adopted Resolution No. 01-45 which prohibits banner-towing operations at PIE. On or about April 30, 2003, Plaintiff filed his FAA Complaint against PIE under FAA Rules of Practice for Federally-Assisted Airport Proceedings, 14 C.F.R. pt. 16.
On December 18, 2003, the FAA issued a sixteen page Director's Determination which concluded that:
(i) The Respondent, by relying on a FAA safety determination to justify the banning of aerial advertising, has made the Petersburg-Clearwater International Airport available to the public on reasonable terms and without unjust discrimination as required under 49 U.S.C. § 47107(a)(1).
(ii) The restrictions on banner-towing operations at PIE do not constitute a granting of an exclusive right of airport use in violation of the prohibition against exclusive rights under 49 USC [sic] § 40103(e) and 49 U.S.C. § 47107(a)(4).
St. Petersburg-Clearwater International Airport.
(Doc. No. 1, Exhibit F). The Director's Determination contained language advising Plaintiff of his right to appeal. Specifically, the Director's Determination included the following language with respect to Plaintiff's right to appeal:
Any party to this proceeding adversely affected by the Director's Determination may appeal this initial determination to the FAA Associate Administrator for Airports pursuant to 14 CFR 16.33(b) within thirty (30) days after service of the Director's Determination.However, Plaintiff did not file an appeal. Since no appeal was filed within the time specified, "the Director's determination becomes the final decision and order of the FAA without further action." See 14 C.F.R. § 16.33(e). "A Director's determination that becomes final because there is no administrative appeal is not judicially reviewable." See id; see also 14 C.F.R. § 16.247(b)(4).
2. There is No Private Right of Action Under The Airports and Airways Improvement Act ("AAIA"), 49 U.S.C. § 47101, et seq.
Broadly speaking, 49 U.S.C. § 47101, et seq., governs federal assistance for the development of public use airports. "Section 47107, et seq., sets forth assurances to which an airport sponsor agrees as a condition for receiving Federal financial assistance" (Doc. No. 1, Exhibit F, p. 3).
The crux of Plaintiff's argument that this Court does have subject matter jurisdiction is that a significant change in circumstances has occurred since the December 18, 2003 Director's Determination. Namely, Plaintiff argues that subsequent to the Director's Determination, "the FAA has taken another look at banner towing activities at the airport, and has now concluded that such operations are both safe and feasible" (Doc. No. 12). In support of his position that the Airport and Airways Improvement Act ("AAIA"), 49 U.S.C. § 47101, et seq., supports his private right of action vis-a-vis 42 U.S.C. § 1983, and that this Court should hear the present action, Plaintiff relies on Southwest Air Ambulance, Inc. v. The City of Las Cruces, 268 F.3d 1161 (10th Cir. 2001). However, the Court finds Plaintiff's reliance on this cited authority inapposite under the facts of this case since Southwest Air Ambulance examined the federal Anti-Head Tax Act ("AHTA"), 49 U.S.C. § 40116. Plaintiff ignores Eleventh Circuit case law that has specifically held that there is no private right of action under the AAIA. See Arrow Airways v. Dade County, 749 F.2d 1489, 1491 (11th Cir. 1985). Furthermore, 42 U.S.C. § 1983 does not provide a remedy to enforce alleged violations of the AAIA. See In re Jet 1 Center, Inc., 322 B.R. 182, 201-02 (M.D. Fla. 2005).
As codified in 14 C.F.R. pt. 152.
Pursuant to its predecessor 49 U.S.C. § 2201, et seq.
3. Plaintiff's Constitutional Claims Are An Impermissible Collateral Attack On The Director's Determination
The merits of Plaintiff's constitutional arguments are inescapably intertwined with a review of the merits of the Director's Determination. The Court finds Plaintiff's argument that the present action is not a "collateral attack on the order of the FAA" since the FAA is not a named party in the suit disingenuous and meritless. By way of example, despite Plaintiff's contention that the instant action is not a collateral attack on the Director's Determination, Plaintiff alleges in his complaint that "[t]he RESOLUTION was based on an improper predicate in that its only support is derived from the `opinions' of Air traffic controllers at PIE who are neither authorized nor qualified to evaluate the safety of Banner towing operations at PIE" and that "[t]he challenged legislation was adopted on the basis of `shoddy data,' `shoddy findings,' and Plaintiff intends to `challenge the findings' upon which the RESOLUTION is based." (Doc. No. 1, ¶¶ 57 and 78). In attacking Resolution 01-45, Plaintiff is really attacking the Director's Determination. Plaintiff cannot use the present action to once again dispute the factual bases of the Director's Determination.
From a review of the Director's Determination, it is clear that Plaintiff has already attempted to dispute air traffic data advanced by PIE and that the FAA reached its determination after a review of several safety analyses and determinations which were conducted between December 15, 2000 and April 11, 2003 (Doc. No. 1, Exhibit L, pp. 10 and 12-14). The FAA found that:
Respondent's current restriction on banner-towing activities is consistent with the obligations relating to reasonableness, unjust discrimination, and exclusive rights, and is supported by the facts. The FM's safety analyses and evaluations clearly demonstrate that banner-towing operations cannot be safety [sic] accommodated and support the safety justification made by the Airport. Therefore, the FM is not persuaded by the Complainant's argument that the Airport lacks justification for implementing the restriction.
(Doc. No. 1, Exhibit F, pp. 14-15).
Plaintiff's constitutional claims are an impermissible collateral challenge to the FAA's Director's Determination. See Green v. Brantley, 981 F.2d 514, 521 (11th Cir. 1993); see also Doe v. F.A.A., 432 F.3d 1259, 1263 (11th Cir. 2005). The Court notes that in Green the court of appeals had jurisdiction over an appeal of a final order of the FAA. In Doe, the plaintiffs attempted to bypass the statutorily established administrative review process and instead filed a motion for preliminary injunction in the district court. Here, Plaintiff did not appeal the Director's Determination and, therefore, the Director's Determination is not judicially reviewable. See 14 C.F.R. § 16.33(e); see also 14 C.F.R. § 16.247(b)(4). Therefore, while Green and Doe are not directly on point and factually distinguishable to the facts of the present case, they are instructive in that they hold that when constitutional claims fall within the ambit of an administrative scheme, as here, the district court is without subject matter jurisdiction.
Pursuant to 49 U.S.C. §§ 44701- 44723.
The constitutional and statutory issues raised in this action stem from the same harm that prompted the FAA Complaint — the denial of Plaintiff's request to conduct banner towing operations at PIE. Plaintiff's claims that Defendant, through Resolution No. 01-45, has violated his constitutional rights would necessarily require this Court to conduct an impermissible review of the Director's Determination and the factual bases for its findings and conclusions. Despite how Plaintiff has couched his causes of action, this Court lacks subject matter jurisdiction over Plaintiff's claims.
Since this Court finds it lacks subject matter jurisdiction over Plaintiff's claims, it will not address the merits of Defendant's argument that Plaintiff's complaint fails to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1) Defendant's motion to dismiss (Doc. No. 5) is GRANTED in that this Court lacks subject matter jurisdiction over Plaintiff's claims. The Clerk is directed to CLOSE this case and TERMINATE any pending motions.
(2) Plaintiff's Unopposed Motion for Oral Argument on Defendant's Motion to Dismiss the Complaint (Doc. No. 11) is DENIED.
DONE AND ORDERED