Marina Aviation, LLC v. Faa

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2023
• Docket: 22-70173
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARINA AVIATION, LLC; PHIL LEWIS, No. 22-70173

Petitioners, FAA No. 16-21-12

v. MEMORANDUM* FEDERAL AVIATION ADMINISTRATION; CITY OF MARINA,

Respondents.

On Petition for Review of an Order of the Federal Aviation Administration

Submitted November 15, 2023** San Jose, California

Before: MURGUIA, Chief Judge, and GRABER and FRIEDLAND, Circuit Judges.

Petitioners Marina Aviation, LLC, and Phil Lewis (together “Marina

Aviation”) seek review of the Federal Aviation Administration’s (“FAA”) decision

that the City of Marina did not breach its federal obligations in declining to extend

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Marina Aviation’s lease at the Marina Municipal Airport. We have jurisdiction

under 49 U.S.C. § 46110(a). We deny the petition for review.

Substantial evidence supports the FAA’s conclusion that the City declined to

extend Petitioners’ lease because they failed to make timely rent payments under

the existing lease. Lewis acknowledged that Marina Aviation “owe[d] the City

some amount for back rent and interest[.]” Jeffrey Crechriou, the Airport Services

Manager at the Marina Municipal Airport, submitted a declaration describing

Marina Aviation’s history of “missed rental payments and resulting late fees and

interest[,]” which resulted in a “Repayment Agreement” between Marina Aviation

and the City. According to Crechriou, the City Council held a closed session on

July 21, 2020, at which the City decided against extending Marina Aviation’s lease

“due to Marina Aviation’s history of non-compliance with the Ground Lease

Terms and its continuing defaults under the Ground Lease and the Repayment

Agreement.”

Marina Aviation argues that the FAA “should not have considered the

declaration of Mr. Crechriou” because it is “riddled with hearsay” and not

authenticated. However, hearsay is allowed in agency proceedings provided that it

is “reliable [and] probative.” See 5 U.S.C. § 556(d); Richardson v. Perales, 402

U.S. 389, 407–08 (1971). Marina Aviation does not meaningfully dispute that the

declaration is reliable and probative. Thus, Marina Aviation’s argument that the

2 FAA should not have considered this evidence fails.

Marina Aviation also argues that the City’s July 2020 closed-door meeting

violated California’s Brown Act, Cal. Gov’t Code § 54950 et seq. Because Marina

Aviation raises this argument for the first time on appeal, it fails for this reason

alone. See Japanese Vill., LLC v. Fed. Transit Admin., 843 F.3d 445, 454–55 (9th

Cir. 2016); see also Marathon Oil Co. v. United States, 807 F.2d 759, 767–68 (9th

Cir. 1986) (“As a general rule, we will not consider issues not presented before an

administrative proceeding at the appropriate time.”). In any event, the Brown Act

has no bearing on whether the City breached its federal obligations.

Petition DENIED.1

1 We deny the City’s motion for judicial notice as MOOT.