Marina Aviation, LLC; Phil Lewis v. Federal Aviation Administration; City of Marina

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARINA AVIATION, LLC; PHIL LEWIS,
Petitioners,
v.
FEDERAL AVIATION
ADMINISTRATION; CITY OF MARINA,
Respondents.
No. 22-70173
FAA No. 16-21-12
MEMORANDUM*
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).
FILED
NOV 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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