United States District Court, W.D. Kentucky, Owensboro Division
PATRICIA KUSHINO on behalf of the Patricia L. Kushino Revocable Trust and JO ANNE WILLIAMS PLAINTIFFS
FEDERAL AVIATION ADMINISTRATION, STEPHEN DICKSON, PHILLIP J. BRADEN, HENDERSON CITY-COUNTY AIRPORT BOARD, ALLEN BENNETT, HENDERSON COUNTY, KENTUCKY, CITY OF HENDERSON, AND RUSSELL SIGHTS DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. MCKINLEY JR., SENIOR JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss [DN 9]. Fully briefed, this matter is ripe for
decision. For the following reasons, the Defendants'
Motion is GRANTED in part and DENIED
Patricia Kushino and Jo Anne Williams (hereinafter the
“Williams”) brought this action to challenge
violations of the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4321, and its
implementing regulations. [DN 1 ¶ 1]. The instant Motion
concerns the Williams' claims-Counts I, II, III, and
IV-against the Federal Aviation Administration, Stephen
Dickson, and Phillip J. Braden (collectively, “the
to the Complaint, the Henderson City-County Airport Board is
seeking to expand the airport. To do so, the improvement plan
requires federal approvals and federal funding from the FAA.
As a result, the expansion project must comply with the
National Environmental Policy Act (“NEPA”). To
expand the airport, Defendants need to acquire portions of
the Williams' land-a family farm located adjacent to the
airport. The Airport Board prepared an environmental
assessment (“EA”) for the proposed expansion.
Thereafter, on September 2, 2016, the FAA issued a Finding of
No Significant Impact (“FONSI”) in which the FAA
concluded the proposed runway expansion project would have no
significant impact on the quality of the human environment.
[Id. ¶¶ 3-4, 53]. The Williams, after
becoming aware of the findings of the FAA, sought review of
the FONSI in the Sixth Circuit pursuant to 49 U.S.C. §
46110. [DN 9-1]. On June 21, 2018, the Sixth Circuit
dismissed the Williams' petition as untimely, having been
filed outside of the sixty-day time frame during which a
party may seek review of FAA orders. [DN 1-5 at 1]. The Sixth
Circuit instructed that if the Williams wished to
“challenge the FAA's decision not to prepare a
supplemental environmental impact statement, ” they
needed to file a separate petition. [Id. at 3].
Williams filed this action in the Western District of
Kentucky on July 5, 2019. They assert that this action is an
effort to do exactly as the Sixth Circuit instructed. The
Complaint sets forth seven causes of action, but only four of
those are relevant to the instant Motion: (1) the FAA and
Airport Board are required to supplement the environmental
assessment because of their failure to address stormwater
drainage issues and impacts on wetlands and other waters of
the U.S. that would result from the planned expansion; (2)
the FAA and Airport Board failed to prepare a full
Environmental Impact Statement (“EIS”) as
required by NEPA; (3) the FAA and Airport Board violated NEPA
by failing to rigorously explore and objectively evaluate all
reasonable alternatives to achieve the airport expansion; and
(4) the FAA and Airport Board violated NEPA when they failed
to provide a rigorous evaluation of the direct, indirect, and
cumulative impacts of the project. [DN 1 ¶¶ 70-87].
moved to dismiss asserting several bases upon which the Court
may grant dismissal. [DN 9]. First, the FAA maintains the
Court lacks subject matter jurisdiction to decide the
Williams claims against them because such jurisdiction is
reserved for the Sixth Circuit or D.C. Circuit pursuant to
§ 46110. In the alternative, the FAA argues that the
doctrine of res judicata warrants dismissal in this
instance, the claims are untimely under § 46110, and
that the Williams failed to exhaust administrative remedies
as required under the same statute. [Id. at 1]. The
Williams respond opposing each ground for dismissal but argue
that if the Court finds that it does not have subject matter
jurisdiction, the case should be transferred to the Sixth
Circuit in lieu of outright dismissal. [DN 10].
Standard of Review
several standards of review are discussed in the FAA's
Motion to Dismiss, only one is necessary to resolution of the
issue-that concerning subject matter jurisdiction. Federal
Rule of Civil Procedure 12(b)(1) provides that a party may
file a motion asserting “lack of subject-matter
jurisdiction.” Fed.R.Civ.P. 12(b)(1). “Subject
matter jurisdiction is always a threshold determination,
” Am. Telecom Co., L.L.C. v. Republic of
Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) (citing
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 101 (1998)), and “may be raised at any stage
in the proceedings[.]” Schultz v. Gen. R.V.
Ctr., 512 F.3d 754, 756 (6th Cir. 2008). “A Rule
12(b)(1) motion can either attack the claim of jurisdiction
on its face, in which case all allegations of the plaintiff
must be considered as true, or it can attack the factual
basis for jurisdiction, in which case the trial court must
weigh the evidence and the plaintiff bears the burden of
proving that jurisdiction exists.” DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). “A
facial attack on the subject-matter jurisdiction alleged in
the complaint questions merely the sufficiency of the
pleading.” Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
In this instance, the FAA asserts a facial attack. “If
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
the FAA Defendants' Motion to Dismiss sets forth four
alternative bases for dismissal, the Court must first address
its subject matter jurisdiction, as jurisdiction is “a
threshold matter” that mush be established before the
Count can proceed onto any other issue. Citizens for a
Better Env't, 523 U.S. at 94-95.
argues that the Court lacks subject matter jurisdiction
because judicial review of FAA orders is assigned exclusively
to the U.S. Courts of Appeals by § 46110(a). The statute
provides in relevant part:
a person disclosing a substantial interest in an order issued
by . . . the Administrator of the Federal Aviation
Administration with respect to aviation duties and powers
designated to be carried out by the Administrator of the
Federal Aviation Administration) in whole or in part under
this part, part B, or subsection (1) or (s) of section 114
may apply for review of the order by filing a petition for
review in the United States Court of Appeals for the District
of Columbia Circuit or in the court of appeals of the United
States for the circuit in which the person resides or has its
principal place of business.
49 U.S.C. § 46110. Importantly, “where it is
unclear whether review jurisdiction is in the district court
or the court of appeals the ambiguity is resolved in favor of
the latter.” Gen. Elec. UraniumMgmt.
Corp. v. U.S. Dep't of Energy, 764 F.2d 896, 903
(D.C. Cir. 1985) (quoting Denberg v. U.S. R.R. Ret.
Bd, 696 F.2d 1193, 1197 (7th Cir. 1983), cert.
denied, 466 U.S. 926 (1984)). “A principal reason
for this guideline is that exclusive ...