April 5, 2017
A Kentucky federal judge has dismissed a lawsuit over an unmanned aircraft, ruling that despite the Federal Aviation Administration’s authority over all U.S. airspace, the dispute lacks federal subject matter jurisdiction.
The owner of a drone that was shot down as it flew over private property has a “garden variety” state law tort claim, according to U.S. District Court Judge Thomas B. Russell of the Western District of Kentucky.
Plaintiff John Boggs’ lawsuit raises only slight and contingent federal issues that are insufficient for federal jurisdiction, Judge Russell said.
On July 26, 2015, Boggs flew his drone approximately 200 feet in the air in Bullitt County, Kentucky, according to his complaint.
William Merideth took the aircraft down with a shotgun as it flew over his property, the complaint said.
In January 2016 Boggs filed his complaint in federal court, seeking a declaratory judgment that under federal law, the drone was an aircraft operating in navigable airspace under the exclusive jurisdiction of the federal government.
Boggs also sought declarations that his operation of the drone did not violate Merideth’s privacy, and that Merideth was not justified in shooting the aircraft. The plaintiff sought $1,500 in damages.
Merideth moved to dismiss the case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
Judge Russell explained that Boggs’ case required “federal question” jurisdiction under 28 U.S.C.A. §§ 1331-1332 in order to survive Merideth’s motion. The judge said the federal question — an issue directly involving the U.S. Constitution or a federal statute — had to appear on the face of the complaint, not as a result of any fact determination in the case.
He noted that federal question jurisdiction could exist in some cases arising under state law, but only if the federal issue was a substantial one.
Judge Russell concluded that Boggs’ case arose under Kentucky tort law. The next step was to determine if there were significant federal issues involved, he said.
Boggs argued that the FAA defines “aircraft” as any “device that is used or intended to be used for flight in the air,” citing 14 C.F.R. § 1.1, and that the U.S. government has exclusive sovereignty of airspace of the United States” under 49 U.S.C.A. § 40103.
But the judge was not convinced the regulation and statute cited by Boggs were enough to raise a significant federal issue.
“A finding of substantiality requires an analysis of ‘the importance of the issue to the federal system as a whole,’” the judge wrote, quoting Grable & Sons Metal Products Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308 (2005).
The judge went on to reject Boggs’ argument that if Merideth asserted a privilege defense, a state court would have to determine the boundaries of federal airspace.
A privilege defense was “a defense based on a federal constitutional, statutory, or administrative provision [that] the state court may have to interpret,” the judge said, quoting another case involving such a defense. Tisdale v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of U.S. & Canada, Local 704, 25 F.3d 1308 (6th Cir. 1994).
The judge concluded that an anticipated defense could not be used to invoke federal jurisdiction. But even if it could, he said, “FAA regulations, at most, would constitute ancillary issues in this case, in which the heart of Boggs’ claim is one for damage to his unmanned aircraft under Kentucky state law.”
Judge Russell said in granting the motion to dismiss that the question of whether the drone was on Merideth’s property or federal property was likely not important to the federal government, and therefore did not meet the substantiality requirement.