Sky Ad, Inc., Robert Cannon v. Homer C. McClure Jacqueline Smith, Merle Clure, John Mayhoffer, James A. Holweger

This action arises out of an FAA rule banning fixed wing aircraft from the air route along the portion of California coast from Northern San Diego County to Ventu-ra County known as the “shoreline transition.” In Southern California Aerial Advertisers’ Ass’n v. FAA, (“SCAA”), 881 F.2d 672, 678 (9th Cir.1989), we held that the ban was a substantive rule and that it was invalid because it was not promulgated in compliance with the publication and comment requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553 .

Appellant Robert Cannon is the sole owner of appellant Sky Ad, Inc., which was in the business of towing advertising banners by fixed-wing aircraft along the Southern California coast. Alleging that the FAA rule banning fixed-wing aircraft from the shoreline transition destroyed their business, appellants brought this action for damages on two discrete bases: First, they claimed that the United States is liable under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 (b), because the FAA’s failure to comply with the APA in promulgating the rule constituted a breach of the duty of due care the FAA owed to appellants. Second, appellants claimed that…