The City and County of San Francisco v. Donald D. Engen, Administrator of the Federal Aviation Administration

Facts

San Francisco owns and operates the San Francisco International Airport through the San Francisco Airport Commission (“Commission”). In September 1985, Burlington Northern Air Freight, Inc. (“Burlington”), asked the Commission for permission to fly Boeing 707s into the airport. The Commission staff rejected Burlington’s request in October 1985, relying on San Francisco’s local noise regulations. On April 15, 1987, after a public hearing, the Commission upheld its staff’s rejection. Dissatisfied, Burlington filed a complaint with the FAA. The complaint charged that the Commission’s enforcement of its local noise regulations constituted an “exclusive right,” prohibited under 49 U.S.C. § 1349 (a) (1982).

On July 7,1986, the FAA staff issued its preliminary recommendation in the form of a Notice of Proposed Order. The staff proposed, among other things, that the FAA suspend current grants to San Francisco and refuse to make future ones. The City petitions for review the Notice under 49 U.S.C.A. § 1486 (Supp.1987), which gives the courts of appeals exclusive jurisdiction to review orders of the FAA issued under Chapter 20 of Title 49.

Discussion

As the City admits, the FAA…