NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVERWING AT SANDPOINT, LLC, an Nos. 15-35589, 16-35296,
Idaho limited liability company, 17-35051
Plaintiff-Appellant,
D.C. No. 2:12-cv-00287-EGL
v.
MEMORANDUM*
BONNER COUNTY, an Idaho municipal
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted October 2, 2017
Portland, Oregon
Before: PAEZ and BEA, Circuit Judges, and LAMBERTH**, District Judge.
In April 2006, Plaintiff SilverWing at Sandpoint, LLC (“SilverWing”)
purchased 18.1 acres of land abutting an airport operated by Idaho’s Bonner County
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable Royce C. Lamberth, Senior District Judge for the U.S. District
Court for the District of Columbia, sitting by designation.
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(“the County”), on which SilverWing planned to build a 45-unit development of
personal airplane hangars and residences. When the Federal Aviation
Administration (“FAA”) placed the airport in noncompliance status due in part to
SilverWing’s plans for the development, construction on the development was
significantly delayed. SilverWing filed this lawsuit against the County to recover
damages caused by the delay. SilverWing alleged claims for breach of the covenant
of good faith and fair dealing, taking without just compensation (via 42 U.S.C. §
1983), violation of equal protection (also via § 1983); and promissory estoppel. The
district court granted the County’s motion for summary judgment on all but the
promissory estoppel claim, which it remanded to state court. SilverWing appealed.
After filing its notice of appeal, SilverWing filed in the district court a Fed. R. Civ.
P. 60(b)(6) motion to reconsider the judgment, which the district court denied.
SilverWing appealed that ruling as well as the district court’s order awarding the
County costs and attorney’s fees. For the following reasons, we affirm all of the
district court’s rulings except the denial of SilverWing’s Rule 60(b)(6) motion,
which we dismiss for lack of jurisdiction.
1. SilverWing’s state law claim for breach of the covenant of good faith and fair
dealing is preempted by federal law. The FAA preempts the fields of “aviation
safety,” Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007), and “aircraft
operations,” Burbank-Glendale-Pasadena Airport Auth. v. City of Los Angeles, 979
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F.2d 1338, 1340 (9th Cir. 1992). When the County’s airport was found to be in
noncompliance by the FAA, due to specific safety and operations concerns with
SilverWing’s development, the FAA required the County to implement a Corrective
Action Plan (“CAP”). The CAP included limiting future residential access to the
airport and pursuing alternatives to the current “through-the-fence” arrangements,
which allowed airplanes to access the municipal airport from SilverWing’s land. It
was not the County which frustrated SilverWing’s plans; it was the FAA. Thus,
SilverWing’s claim is preempted.
2. SilverWing’s claims under 42 U.S.C. § 1983 fail. Although the County, in
voting to submit a new Airport Layout Plan (“ALP”) to the FAA, took official action
to ensure the airport’s compliance with federal law, the “moving force” behind the
action was the FAA’s requirement that the County change the airport’s ALP. Thus,
the challenged conduct was not pursuant to any County “policy or custom” and
cannot serve as the basis for a § 1983 lawsuit. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978).
3. The district court did not abuse its discretion by denying SilverWing’s Rule
60(b)(6) motion to reconsider the judgment. Rule 62.1 authorizes district courts to
deny a timely filed motion for relief under Rule 60(b)(6) that is barred by a pending
appeal, as was the case here when the motion was filed. The denial of such a motion
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is not appealable and, if appealed, is subject to dismissal under Scott v. Younger, 739
F.2d 1464, 1466 (9th Cir. 1984). Thus, we dismiss.
4. The district court did not abuse its discretion by awarding Rule 54(d)(1) costs
and attorney’s fees to the County. The County is a “prevailing party” within the
meaning of Rule 54(d)(1) because it obtained a judgment with respect to all of
SilverWing’s claims except the one ultimately remanded to state court. San Diego
Police Officers’ Ass’n v. San Diego City Emps. Ret. Sys., 568 F.3d 725, 741 (9th Cir.
2009). As such, it is entitled to costs unless SilverWing can show why a cost award
would be “inappropriate or inequitable.” Ass’n of Mexican-Am. Educators v.
California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc). No such showing has been
made here. Furthermore, the “through-the-fence” agreement between the parties
provided that attorney’s fees were to be awarded to the party deserving of costs in
any action brought “to enforce” the agreement. Because the § 1983 claims were
brought, at least in part, to enforce the “through-the-fence” agreement, it was not
error for the court to award fees also for those claims.
AFFIRMED IN PART; DISMISSED IN PART.
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