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Kushino v. Federal Aviation Administration

United States District Court, W.D. Kentucky, Owensboro Division

December 3, 2019

PATRICIA KUSHINO on behalf of the Patricia L. Kushino Revocable Trust and JO ANNE WILLIAMS PLAINTIFFS



         This 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 in part.

         I. Background

         Plaintiffs 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 FAA”).

         According 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].

         The 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].

         The FAA 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].

         II. Standard of Review

         Although 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.” Fed.R.Civ.P. 12(h)(3).

         III. Discussion

         While 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.

         The FAA 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 ...

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