Petition for Writ of Certiorari — Barry Rosen, Petitioner v. United States, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Memorandum Opinion of the United States

Court of Appeals for the Ninth Circuit

(January 3, 2020)................................................ 1a

Order of the United States District Court

for the Central District of California

(July 5, 2018) ...................................................... 6a

REHEARING ORDER

Order of the United States Court of Appeals for

the Ninth Circuit Denying Petition for

Rehearing (March 17, 2020)............................. 22a

STATUTORY PROVISIONS AND JUDICIAL RULES

Relevant Statutory Provisions

and Judicial Rules ............................................ 24a

App.1a

MEMORANDUM OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(JANUARY 3, 2020)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

BARRY ROSEN,

Plaintiff-Appellant,

v.

UNITED STATES GOVERNMENT; ET AL.,

Defendants-Appellees.

________________________

No. 18-56059

D.C. No. 2:17-cv-07727-PSG-JEM

On Appeal from the United States District Court for

the Central District of California Philip S. Gutierrez,

District Judge, Presiding

Submitted December 13, 2019

Pasadena, California

 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).

App.2a

Before: BOGGS, WARDLAW,

and BEA, Circuit Judges.

Barry Rosen appeals the district court’s dismissal

of this action for lack of standing. Rosen is a pilot, a

pro se plaintiff,1 and a serial litigant who is asking

that the federal courts invalidate a consent decree

entered in a different case between the City of Santa

Monica and the United States Government concerning

the Santa Monica Airport (“SMO”). SMO was transferred to the federal government during World War

II, then back to the City under the Surplus Property

Act, with conditions that may or may not still be valid

regarding its continuing use as an airport. Since the

beginning of the jet age, the City has been seeking to

close the airport, which has resulted in multiple

lawsuits and settlements between the City and the

federal government. The most recent of these ended

in a 2017 consent decree, under which the City may

shorten the runway immediately and must keep the

airport open until 2028, but is free thereafter to close

it. The case leading to the consent decree has drawn

proper intervenors (whose claims have been rejected)

and collateral challenges (thus far also unsuccessful,

though litigation continues).

Rosen did not move to intervene in that litigation.

Rather, in a separate series of complaints (four so

far, with a pending request to reverse the district

 The Honorable Danny J. Boggs, United States Circuit Judge

for the U.S. Court of Appeals for the Sixth Circuit, sitting by

designation.

1 Rosen filed his Opening Brief in this case pro se, but has

counsel listed on his Reply Brief.

App.3a

court’s denial of leave to file a fifth), Rosen asked the

district court to void not only the consent decree but

also an expired 1984 agreement between the same

parties and to require the federal government to take

over the airport or bring in a third party to administer

it. The district court held that Rosen did not have

standing on several grounds, granted defendants’

Rule 12(b)(1) motion to dismiss for lack of subjectmatter jurisdiction, and also concluded that Rosen’s

motion for partial summary judgment was moot.

Rosen now appeals, and we affirm.2

1. Rosen Lacks Standing. To begin with, he

cannot satisfy the requirement of redressability. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992); M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir.

2018). Were we to void the consent decree, the City

and federal government would be back to the status

quo ante, under which the government at most has

the option to take over the airport, while the City

would be litigating to close it immediately. “To establish

redressability, a plaintiff must show that it is ‘likely,

as opposed to merely speculative, that the injury will

be redressed by a favorable decision.’” M.S., 902 F.3d

at 1083, quoting Lujan, 504 U.S. at 561. This case does

not clear that bar. Moreover, Rosen’s complaint about

the 1984 agreement between the federal government

and the City is not redressable, as that agreement

expired in 2015. See Caldwell v. Caldwell, 545 F.3d

1126, 1130 (9th Cir. 2008).

When it comes to his challenges to the current

litigation and consent decree, Rosen confuses practical

redressability with legal redressability, arguing that

2 We deny Rosen’s motion for summary disposition as moot.

App.4a

recent construction shortening the runway pursuant

to the consent decree is reversible. But the issue is

not whether the actions he proposes can physically

be taken. Rather, the question is the legal rights of

the City and federal government. Even if the district

court did what Rosen proposes—voiding the 2017

consent decree—the parties would have many options to

act in ways that would not redress Rosen’s grievances.

Finally, while Rosen urges the court to mandate

enforcement of a wide variety of statutes and regulations, which the federal government has allegedly

neglected with respect to Santa Monica and SMO, it is

an elementary point of law that individual enforcement

decisions are discretionary and non-reviewable. See,

e.g., Friends of Cowlitz v. FERC, 253 F.3d 1161, 1170

(9th Cir. 2001), amended in non-relevant part, 282

F.3d 609. Thus, these claims also are fatally flawed

for want of redressability.

2. Nor does Rosen assert sufficiently imminent

injury, with respect to many of his claims, to have

standing. “A plaintiff has sustained an injury in fact

only if [he] can establish “an invasion of a legally

protected interest which is . . . actual or imminent, not

conjectural or hypothetical.” Civil Rights Educ. & Enf’t

Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1098 (9th

Cir. 2017) (quoting Lujan, 504 U.S. at 560. Most of

the harms Rosen complains about would not happen,

if at all, until after 2028. “[A] claim is not ripe for

adjudication if it rests upon contingent future events

that may not occur as anticipated, or indeed may not

occur at all.” Texas v. United States, 523 U.S. 296,

300 (1998) (cleaned up).

3. Furthermore, Rosen has not made out an

injury-in-fact. Thus far, his most specific and plausible

App.5a

allegation—contained in the proposed Fourth Amended

Complaint, which he was never given leave to file—is

that the shortening of the runway that was allowed

immediately under the consent decree has caused

him to have to perform go-arounds as well as to rent

hangar space elsewhere during construction. Even in

this unfiled complaint, Rosen does not provide sufficient

factual details to make these more than conclusory

statements that do not suffice to provide standing.

Cf. Ashcroft v. Iqbal, 556 U.S. 662, 682-83 (2009).

Rosen’s previous complaints offered even less in the

way of plausible detail. And even if Rosen in theory

could provide more detail, the district court was

within its discretion in denying him leave to amend a

fifth time. See Chodos v. West Publ’g Co., 292 F.3d

992, 1003 (9th Cir. 2002). His other allegations of

injury-in-fact fail as being insufficiently concrete and

particularized. See Lujan, 504 U.S. at 560.

4. Rosen’s attempts to bring the case under the

private-attorney-general doctrine fail because even if

there were statutory authority to bring such claims—

which there is not—he still would have to show

Article III standing in his own right, which he

cannot. See Gee v. American Nat. Ins. Co., 260 F.3d

997, 1001-02 (9th Cir. 2001).

5. As standing is a threshold requirement, and

as Rosen lacks it, we do not consider his other

grounds for appeal.

AFFIRMED.

App.6a

ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

(JULY 5, 2018)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES-GENERAL

________________________

BARRY ROSEN

v.

UNITED STATES GOVERNMENT,

FEDERAL AVIATION ADMINISTRATION,

and CITY OF SANTA MONICA

________________________

Case No. CV 17-7727 PSG (JEMx)

Proceedings (In Chambers):

The Court GRANTS Defendants’ motions to dismiss

and RENDERS MOOT Plaintiff’s motion for partial

summary judgment

Before: The Honorable Philip S. GUTIERREZ,

United States District Judge.

Before the Court is Defendants the City of Santa

Monica, Federal Aviation Administration, and United

States Government’s (“Defendants”) motions to dismiss,

App.7a

see Dkts. # 57 (“SM Mot.”), 58 (“Fed. Mot.”),1 and

Plaintiff Barry Rosen’s (“Plaintiff”) motion for partial

summary judgment, see Dkt. # 80 (“MSJ”). Plaintiff

filed oppositions to the motions to dismiss, see Dkts.

# 98 (“Fed. Opp.”), 99 (“SM Opp.”), and Defendants

replied, see Dkts. # 102 (“Fed. Reply”), 106 (“SM

Reply”). Defendants filed oppositions to the motion

for partial summary judgment, see Dkts. # 92 (“Fed.

MSJ Opp.”), 94 (“SM MSJ Opp.”), and Plaintiff replied,

see Dkts. # 109 (“SM MSJ Reply”), 110 (“Fed. MSJ

Reply”). The Court finds these matters appropriate

for decision without oral argument. See Fed. R. Civ. P.

78(b); L.R. 7-15. After considering the moving, opposing, and reply papers, the Court GRANTS Defendants’

motions to dismiss, and Plaintiff’s motion for summary

judgment is RENDERED MOOT.

I.

Background

A. Factual History

The complex background and procedural history of

this case is long, involving multiple other cases, courts,

and agencies, and centers on the ongoing disputes

about the Santa Monica Airport (“SMO” or “the

Airport), its use, and its future. Plaintiff recounts the

major events in the Airport’s roughly one-hundred

year history, including ownership, control, and usage.

See generally Dkt. # 56, Third Amended Complaint

(“TAC”). The Court does not find it necessary to detail

the Airport’s entire history here, and will address only

the facts it deems relevant to the present motions.

1 Defendants Federal Aviation Administration and United

States Government (collectively, “the Federal Defendants”) filed

a joint motion to dismiss.

App.8a

In 1981, the Santa Monica City Council adopted

a resolution that announced its “intention to close

SMO as soon as legally possible.” SM Mot. 3. Soon after,

Defendant the City of Santa Monica (“the City”)

adopted a new “Master Plan” for the Airport in 1983,

resulting in Defendant Federal Aviation Administration

(“FAA”) bringing enforcement actions against the

City. Id. In response to these actions, the parties

began negotiations which culminated in a settlement

agreement (“the 1984 Agreement”). TAC ¶ 19; SM

Mot. 3. The 1984 Agreement released land restrictions

on portions of the Airport for non-aviation purposes

and specified that it was required to operate as an

airport only until July 1, 2015. TAC ¶ 19; SM Mot. 3.

In 1994, the City accepted its last federal grant

under the contractual requirement that the Airport

would continue to operate for another twenty years,

or until June 29, 2014. SM Mot. 3. As the 2015 date

approached, the City Council in December 2010 decided

to initiate a “comprehensive public process” regarding

the Airport. Id. In April 2013, the process report concluded that the “status quo at the Airport was not

acceptable to residents.” Id. 3-4.

The growing public concern, confirmed by the

report’s findings, ignited a legal battle between the

City and federal government over myriad issues

regarding the Airport. Id. In October 2013, in an

effort to take control of those issues, the City filed a

quiet title action (“the Quiet Title Action”) against the

United States seeking a declaratory judgment that

the City had unencumbered title to SMO. See City of

Santa Monica v. United States, et al., 650 F. App’x.

326 (9th Cir. 2016); SM Mot. 4; TAC ¶ 24. While the

Quiet Title Action was pending, the City was involved

App.9a

in several other disputes related to its ability to exercise

control over Airport operations and to close SMO.

See SM Mot. 4. As a result of these disputes, and

following a lengthy public process, a Consent Decree

between the City and the federal government was

proposed, which would: (i) resolve all the outstanding

legal disputes between the City and the federal

government; (ii) require the City to operate SMO

only until December 31, 2028; and (iii) grant the City

the right to shorten the runway to 3,500 feet. TAC

¶ 27; Fed Mot. 4; SM Mot. 5. The proposed Consent

Decree itself did not dictate the shortening of the

runway or the eventual closure of the Airport; it

merely set forth a framework for local control of SMO

by the City, and granted it the right to shorten the

runway or close the Airport after 2028. See SM Mot. 9.

On January 30, 2017, the City and the federal

government executed the Consent Decree. Id. 5-6. On

February 1, 2017, the Honorable John F. Walter

entered an order approving the Consent Decree. Id. 6;

Fed. Mot. 4. Upon entry by the court, the City made

the Consent Decree publicly available by posting it on

the City’s website and began to hold public hearings

to determine the logistics and details of shortening

the Airport’s runway. SM Mot. 6. Defendants note

that Plaintiff was not in attendance at any of the

hearings. Id.

B. Procedural History

On October 23, 2017, Plaintiff initiated this

action by filing a petition for writ of mandate and a

complaint for declaratory and injunctive relief, as well

as an emergency ex parte application for a temporary

restraining order, to enjoin the City from shortening

App.10a

the runway. See Dkt. # 1, Complaint. Three days later,

this Court denied Plaintiff’s ex parte application on

multiple grounds. See Dkt. # 12; SM Mot. 1. Over the

course of the following four months (from mid-November 2017 to mid-March 2018), Plaintiff filed a First,

Second, and Third Amended Complaint. See Dkts.

# 28, 44, 56. The City completed the runway shortening

project construction on December 23, 2017. SM Mot.

8. Defendants now move to dismiss Plaintiff’s TAC,

and Plaintiff contemporaneously filed a motion for

partial summary judgment.

II.

Legal Standard

A. 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil

Procedure (“FRCP”) governs the dismissal of a claim at

any time prior to final judgment if the court lacks

subject matter jurisdiction. It has been a long

recognized rule that “the jurisdiction of the court

depends upon the state of things at the time of the

action brought.” Grupo Dataflux v. Atlas Glob. Grp.,

L.P., 541 U.S. 567, 570 (2004) (citations omitted).

The plaintiff bears the burden of establishing that

subject matter jurisdiction exists. See Valdez v. United

States, 56 F.3d 1177, 1179 (9th Cir. 1995). When a

claim does not arise under any federal law, it does

not pose a federal question under 28 U.S.C. § 1331.

ARCO Envtl. Remediation, LLC v. Dep’t of Health

and Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000).

B. 12(b)(6)

To survive a motion to dismiss under Rule

12(b)(6), a complaint must “contain sufficient factual

App.11a

matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). In assessing the

adequacy of the complaint, the court must accept all

pleaded facts as true and construe them in the light

most favorable to the plaintiff. See Turner v. City and

County of San Francisco, 788 F.3d 1206, 1210 (9th

Cir. 2015); Cousins v. Lockyer, 568 F.3d 1063, 1067

(9th Cir. 2009). The court then determines whether

the complaint “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. However,

“[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do

not suffice.” Id. Accordingly, “for a complaint to

survive a motion to dismiss, the non-conclusory factual

content, and reasonable inferences from that content,

must be plausibly suggestive of a claim entitling the

plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d

962, 969 (9th Cir. 2009) (internal quotation marks

omitted).

B. Motion for Summary Judgment

“A party may move for summary judgment,

identifying each claim or defense—or the part of each

claim or defense—on which summary judgment is

sought. The court shall grant summary judgment if

the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A party seeking summary judgment bears the

initial burden of informing the court of the basis for

its motion and identifying those portions of the

App.12a

pleadings and discovery responses that demonstrate

the absence of a genuine issue of material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If

the nonmoving party will have the burden of proof at

trial, the movant can prevail by pointing out that

there is an absence of evidence to support the moving

party’s case. See id. If the moving party meets its

initial burden, the nonmoving party must set forth,

by affidavit or as otherwise provided in Rule 56,

“specific facts showing that there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

In judging evidence at the summary judgment

stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all

reasonable inferences in the light most favorable to the

nonmoving party. See T.W. Elec. Serv., Inc. v. Pacific

Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.

1987). The evidence presented by the parties must be

admissible. See Fed. R. Civ. P. 56(e). Conclusory,

speculative testimony in affidavits and moving papers

is insufficient to raise genuine issues of fact and

defeat summary judgment. See Thornhill Publ’g Co.,

Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th

Cir. 1979).

III. Discussion

Plaintiff seeks declaratory relief, a writ of mandate,

and injunctive relief. See TAC ¶¶ 117, 134, 144.

Specifically, Plaintiff seeks a declaration that the

2013 lawsuit between the City and United States is

invalid ab initio on six different grounds; a declaration

ordering vacatur of the Consent Decree and portions

of the 1984 Agreement between the FAA and the

App.13a

City; a declaration that the signatures on the Consent

Decree are not binding; a writ of mandate directing

the FAA to comply with the Administrative Procedure

Act (“APA”) and National Environmental Policy Act

(“NEPA”); a writ of mandate directing FAA to ensure

the City complies with FAA regulations; a writ of

mandate for the City to comply with all environmental

obligations under NEPA, the California Environmental

Quality Act (“CEQA”), and other regulations; a writ

of mandate directing the City to comply with all

State and local regulations; a writ of mandate directing

the FAA to retain jurisdiction to ensure that the City

complies with FAA regulations; a writ of mandate

directing the City to choose between fees or a shortened

runway; preliminary and permanent injunctive relief

to cease any actions related to the Consent Decree;

orders or declarations that the City and the FAA

violated their ministerial obligations; and fees and

costs. Id. ¶¶ 144-169.

Plaintiff asserts a wide range of claims that do not

form cognizable causes of action, including “Invalid

Contract with Outside Counsel,” “Santa Monica had

absolutely no right to bring an Action pursuant to 28

U.S.C. § 2675, et al.,” “The Court Lack Jurisdiction over

CSM’s Action,” “FAA Overstepped its Authority in the

1984 Agreement,” “The [Consent] Decree is Invalid

ab initio because FAA Overstepped its Authority,”

“[Consent] Decree is Invalid due to City Council Conflict

of Interest,” “Violations of the Local Regulations and

CEQA,” and “Failure to Enforce Federal Regulations

Governing Public Airports.” Id. ¶¶ 30, 34, 40, 45, 51,

97, 102, 111. The Court will attempt to group Plaintiff’s

allegations into three categories: claims surrounding

the alleged violation of federal statutes and regulations;

App.14a

claims related to the 1984 Agreement; and claims

involving the Airport litigation, settlement agreement,

and Consent Decree. The Court now turns to Defendants’ motions to dismiss those claims.

A. Defendants’ Motions to Dismiss

i. Lack of Subject Matter Jurisdiction

All Defendants move to dismiss on the grounds

that the Court lacks subject matter jurisdiction because

Plaintiff lacks standing to bring his claims; they argue

that he does not allege a concrete injury, and any

possible injury he could have is not redressable by this

Court. See generally Fed. Mot.; SM Mot. To establish

Article III standing, a plaintiff must demonstrate that

he (1) “suffer[s] an ‘injury in fact’ which is (a) concrete and particularized and (b) ‘actual or imminent,

not conjectural or hypothetical,’” (2) “the injury has

to be fairly traceable to the challenged action of the

defendant,” and (3) “the injury will be ‘redressed by a

favorable decision.’” Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (citations omitted). These three elements must also be met when a plaintiff seeks relief

under the Declaratory Judgment Act. See Principal

Life Ins. Co. v. Robinson, 394 F.3d 665, 669-70 (9th

Cir. 2005) (“Requirement that a case or controversy

exists under the Declaratory Judgment Act is identical

to Article III’s”).

a. Federal Claims and Regulations

Plaintiff brings many claims against the Federal

Defendants on the basis that they have violated

federal statutes and regulations, including the APA,

NEPA, and FAA regulations, by, for instance, failing

App.15a

to file the correct claims, failing to allow for the

proper amount of time to pass, failing to conduct the

required environmental tests, and failing to enforce

their own regulations. See TAC ¶¶ 56, 70, 111, 148163. As with all of his claims, Plaintiff must establish

injury in fact and redressability to demonstrate that

he has standing. See Lujan, 504 U.S. at 560.

Plaintiff spends many pages in his TAC detailing

the history of the Airport and the litigation surrounding

it; he devotes little time to his own relationship to any

of those events. He states that as “a licensed pilot

. . . [and] a user of the Airport . . . [and] owner of an

aircraft based at the airport . . . [that he] has been

injured and continues to face damages . . . ” TAC ¶¶ 1,

9. He does not offer any specifics as to what that

injury might be or what his damages are, or how those

might be measured. The statement that he is the

owner of an aircraft at the Airport is not sufficient to

establish a concrete or particularized injury, nor is

the conclusory statement that he “has been injured.”

See Lujan, 504 U.S. at 560 (“Injury in fact must be

concrete and particularized . . . ”). Plaintiff also states

that he “is aware of numerous violations of such

regulations, including the fact that the City of Santa

Monica has been very discriminatory towards aviation

in general and has engaged in numerous activities to

keep or otherwise exclude aviation interests in general

. . . ” and that he has been on the “hangar waiting

list (which is very long)” for a few years. Id. ¶¶ 1, 9,

113. Plaintiff does not describe in any way how he

has been discriminated against, nor does he allege

any damages or costs he has suffered as a result of

being on the hangar waiting list.

App.16a

In short, Plaintiff has not sufficiently alleged

any concrete or particularized injury as a traceable

to any of the alleged federal violations, and thus the

first and second prongs of the standing inquiry fail.

Furthermore, to meet the third element, Plaintiff

must establish that his harms are redressable by the

Court. He falls short here as well. Even if the Court

were to find a concrete and traceable injury, Plaintiff

must prove that the “injury will be redressed by a

favorable decision.” Lujan, 504 U.S. at 560. Plaintiff

has not explained, for instance, how “vacatur of portions

of the 1984 Agreement” could redress any injury he

might have. TAC ¶ 67. In any event, the Court cannot

redress Plaintiff’s alleged injuries; a court has no

authority to review a discretionary agency decision

regarding enforcement of the agency’s regulations.

See Hosseini v. Gonzales, 471 F.3d 953, 956 (9th Cir.

2006) (“An agency’s discretionary decisions are

insulated from judicial review, whereas non-discretionary decisions can be challenged in court.”); People

for the Ethical Treatment of Animals, Inc. v. USDA,

797 F.3d 1087 (D.C. Cir. 2015). “[A]n agency’s decision

not to take enforcement action should be presumed

immune from judicial review under [5 U.S.C.] § 701

(a)(2).”); Heckler v. Chaney, 470 U.S. 821, 832 (1985).

Plaintiff has thus failed to establish standing to

bring claims regarding the Federal Defendants’ alleged

violations.

b. The 1984 Agreement

Plaintiff also seeks to invalidate portions of the

1984 Agreement between the City and the FAA

regarding certain land on the Airport property being

repurposed for non-aviation uses. See TAC ¶¶ 126,

App.17a

146, 155. Plaintiff has not offered any facts about

how an agreement made over 30 years ago and

resulting in the repurposing of a portion of the

Airport’s land injured him in any way, nor how any

concrete injury could be traced to the 1984 Agreement.

Furthermore, the 1984 Agreement expired in 2015,

so even if Plaintiff alleged an injury, the Court could

not redress it. Any claim Plaintiff might have arising

from the 1984 Agreement is moot. See ACLU of Mass.

v. U.S. Conference of Catholic Bishops, 705 F.3d 44,

55 (1st Cir. 2013) (affirming dismissal on mootness

grounds where plaintiff sought relief against expired

agreement).2

c. Airport Litigation, Resulting Settlement,

and Consent Decree

Plaintiff seeks to invalidate the entire prior

Airport litigation, resulting settlement, and Consent

Decree because he takes issue with the shortening of

the runway and the future closure of the Airport. See

TAC ¶¶ 148-156. As with the other claims, Plaintiff

has not alleged a concrete injury. See Fed. Mot. 11.

Rather, he alleges that other pilots have been injured

by the shortening of the runway, stating that the

resulting “very dangerous situation” caused “numerous

problems from [sic] pilots, including but not limited

to missed approaches . . . delays at other airports and

additional costs to other aircraft operators and or [sic]

potential aircraft spacing issues.” Id. ¶ 66. However,

2 Defendants also note that any cause of action Plaintiff asserts

relating to the 1984 Agreement is time-barred by the statute of

limitations; because the Court determines Plaintiff has not alleged

any injury and his claims are moot, it need not reach this issue.

App.18a

Plaintiff does not allege that he himself experienced

any of these issues, and he does not even point to any

concrete examples of these “numerous problems”

related to other pilots. See id. ¶¶ 65-66. Plaintiff alleges no injury to himself other than the previously

discussed assertion that he owns an aircraft; further,

any injury that could arise from the closure of the

Airport is far too speculative and distant to confer

Article III standing, given that it is over a decade

away and is far from a certainty.3 See Fed. Mot. 910. The Court agrees with Defendants that Plaintiff

has not stated a concrete, particularized, actual, or

imminent injury.

Even if Plaintiff had alleged injury, the redressability requirement would not be met here either.

Plaintiff seeks to force either the City, the FAA, or a

third party to re-lengthen the runway and prevent

the Airport from closing in the future. See generally

TAC. If the Court found the prior litigation, settlement agreement, or Consent Decree to be invalid on

any grounds, that would neither result in a reversal

of the runway shortening project nor force the Airport

to continue operating after 2028. At most, the ownership and control of the Airport and relationship

between the City and the FAA would revert back to

its previous state before the litigation, settlement,

3 Furthermore, the potential closure of the Airport under the

Consent Decree can happen, at the earliest, after December 31,

2028. See SM Mot. 9-10. Therefore, any potential injury is far

too speculative to be addressed at this point in time. See Marino

v. Country wide Fin. Corp., 26 F.Supp.3d 955, 960 (C.D. Cal. 2014)

(“[A] claim is not ripe for adjudication if it rests upon ‘contingent

future events that may not occur as anticipated, or indeed may not

occur at all.’”) (quoting Texas v. United States, 523 U.S. 296,

300 (1998)).

App.19a

and Consent Decree occurred. See Fed. Mot. 10-11.

Therefore, any injury to Plaintiff from the runway

shortening or future closure would not be redressed

by a favorable decision here.

Plaintiff has failed, therefore, to establish Article

III standing to bring any of his claims, because he

has no concrete injury traceable to Defendants that

is redressable by the Court.

ii. Private Attorney General

Plaintiff “also brings this action as a Private

Attorney General under the Private Attorney General

Doctrine in the public interest for the benefit of other

persons similarly affected or situated . . . due to there

being hundreds if not thousands of persons that are

similarly affected or situated.” TAC ¶¶ 1, 10. A plaintiff

cannot allege grievances on behalf of the public

unless the statute at issue provides him with such

authority. See Angela v. City of Albuquerque, 1:15CV-01048 WJ-LF, 2016 WL 10720431, *3 (D.N.M.

Feb. 16, 2016) (finding a plaintiff claiming he or she

is a private attorney general still must have statutory

basis); 31 U.S.C. § 3730(b). Plaintiff does not bring

any claims under a statute that qualifies him to act

as a private attorney general. See generally TAC.

Even if Plaintiff asserted a claim that provided

the right to act as a private attorney general, which

he does not, he is still not exempt from meeting

Article III standing requirements in federal court.

See Mangini v. R.J. Reynolds Tobacco Co., 793 F.

Supp. 925, 929 (N.D. Cal. 1992) (holding that a statecreated statutory right to act as a private attorney

general does not confer Article III standing in federal

court); Mortera v. N. Am. Mortg. Co., 172 F. Supp. 2d

App.20a

1240, 1243-44 (N.D. Cal. 2001). The Court has already

determined that Plaintiff lacks Article III standing,

and he also fails to establish the authority to bring

any cause of action as a private attorney general.

iii. Conclusion

Plaintiff has wholly failed to establish that he

has standing to bring any of his claims. Therefore,

the Court GRANTS Defendants’ motions to dismiss.

B. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff filed a motion for partial summary

judgment on May 21, 2018, less than a month after

Defendants filed their respective motions to dismiss

on April 23, 2018. See Dkts. # 57, 58, 80. Because the

Court grants Defendants’ motions to dismiss, it need

not address whether the timing of Plaintiff’s motion

was proper. Plaintiff’s motion for partial summary

judgment is RENDERED MOOT.

IV. Leave to Amend

Whether to grant leave to amend rests in the

sound discretion of the trial court. See Bonin v.

Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The Court

considers whether leave to amend would cause undue

delay or prejudice to the opposing party, and whether

granting leave to amend would be futile. See SissetonWahpeton Sioux Tribe v. United States, 90 F.3d 351,

355 (9th Cir. 1996). Generally, dismissal without

leave to amend is improper “unless it is clear that the

complaint could not be saved by any amendment.”

Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).

App.21a

Because Plaintiff has already amended his complaint three times and still fails to establish the

threshold standing requirement, the Court determines

that amendment would be futile. Accordingly, the

Court DENIES Plaintiff leave to amend.

V.

Conclusion

For the foregoing reasons, the Court GRANTS

Defendants’ motions to dismiss without leave to

amend. Plaintiffs’ motion for partial summary judgment

is RENDERED MOOT.

This order closes the case.

IT IS SO ORDERED.

App.22a

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT DENYING

PETITION FOR REHEARING

(MARCH 17, 2020)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

BARRY ROSEN,

Plaintiff-Appellant,

v.

UNITED STATES GOVERNMENT; ET AL.,

Defendants-Appellees.

________________________

No. 18-56059

D.C. No. 2:17-cv-07727-PSG-JEM

Central District of California, Los Angeles

Before: BOGGS, WARDLAW, and BEA,

Circuit Judges.

Judge Wardlaw votes to deny the petition for

rehearing en banc, and Judges Boggs and Bea so

recommend.

 The Honorable Danny J. Boggs, United States Circuit Judge

for the U.S. Court of Appeals for the Sixth Circuit, sitting by

designation.

App.23a

The full court has been advised of the petition

for rehearing en banc, and no judge has requested a

vote on whether to rehear the matter en banc. Fed.

R. App. P. 35.

The petition for rehearing en banc is therefore

DENIED.

App.24a

RELEVANT STATUTORY PROVISIONS

AND JUDICIAL RULES

STATUTORY PROVISIONS

5 U.S.C. § 702.—Right of Review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute,

is entitled to judicial review thereof. An action in

a court of the United States seeking relief other

than money damages and stating a claim that an

agency or an officer or employee thereof acted or

failed to act in an official capacity or under color of

legal authority shall not be dismissed nor relief

therein be denied on the ground that it is against

the United States or that the United States is an

indispensable party. The United States may be

named as a defendant in any such action, and a

judgment or decree may be entered against the

United States: Provided, that any mandatory or

injunctive decree shall specify the Federal officer

or officers (by name or by title), and their

successors in office, personally responsible for

compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of

the court to dismiss any action or deny relief on

any other appropriate legal or equitable ground;

or (2) confers authority to grant relief if any other

statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.

App.25a

5 U.S.C. § 704.—Actions Reviewable

Agency action made reviewable by statute and

final agency action for which there is no other

adequate remedy in a court are subject to judicial

review. A preliminary, procedural, or intermediate

agency action or ruling not directly reviewable is

subject to review on the review of the final agency

action. Except as otherwise expressly required

by statute, agency action otherwise final is final for

the purposes of this section whether or not there

has been presented or determined an application

for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires

by rule and provides that the action meanwhile

is inoperative, for an appeal to superior agency

authority.

31 U.S.C. § 1341.—Limitations on Expending and

Obligating Amounts

(a)

(1) Except as specified in this subchapter or

any other provision of law, an officer or

employee of the United States Government

or of the District of Columbia government

may not—

(A) make or authorize an expenditure or obligation exceeding an amount available

in an appropriation or fund for the

expenditure or obligation;

(B) involve either government in a contract

or obligation for the payment of money

App.26a

before an appropriation is made unless

authorized by law;

(C) make or authorize an expenditure or obligation of funds required to be sequestered under section 252 of the Balanced

Budget and Emergency Deficit Control

Act of 1985; or

(D) involve either government in a contract

or obligation for the payment of money

required to be sequestered under section

252 of the Balanced Budget and Emergency Deficit Control Act of 1985.

(2) This subsection does not apply to a

corporation getting amounts to make loans

(except paid in capital amounts) without

legal liability of the United States Government.

(b) An article to be used by an executive

department in the District of Columbia that

could be bought out of an appropriation made to

a regular contingent fund of the department may

not be bought out of another amount available

for obligation.

(c)

(1) In this subsection—

(A) the term “covered lapse in appropriations” means any lapse in appropriations that begins on or after December

22, 2018;

(B) the term “District of Columbia public

employer” means—

App.27a

(i) the District of Columbia Courts;

(ii) the Public Defender Service for

the District of Columbia; or

(iii) the District of Columbia government;

(C) the term “employee” includes an officer;

and

(D) the term “excepted employee” means

an excepted employee or an employee

performing emergency work, as such

terms are defined by the Office of

Personnel Management or the appropriate District of Columbia public

employer, as applicable.

(2) Each employee of the United States Government or of a District of Columbia public

employer furloughed as a result of a covered

lapse in appropriations shall be paid for the

period of the lapse in appropriations, and

each excepted employee who is required to

perform work during a covered lapse in

appropriations shall be paid for such work,

at the employee’s standard rate of pay, at

the earliest date possible after the lapse in

appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse.

(3) During a covered lapse in appropriations,

each excepted employee who is required to

perform work shall be entitled to use leave

under chapter 63 of title 5, or any other

applicable law governing the use of leave by

App.28a

the excepted employee, for which compensation shall be paid at the earliest date

possible after the lapse in appropriations

ends, regardless of scheduled pay dates.

31 U.S.C. § 1342.—Limitation on Voluntary Services

An officer or employee of the United States

Government or of the District of Columbia

government may not accept voluntary services

for either government or employ personal

services exceeding that authorized by law

except for emergencies involving the safety of

human life or the protection of property. This

section does not apply to a corporation getting

amounts to make loans (except paid in capital

amounts) without legal liability of the United

States Government. As used in this section,

the term “emergencies involving the safety of

human life or the protection of property” does

not include ongoing, regular functions of

government the suspension of which would

not imminently threaten the safety of human

life or the protection of property.

31 U.S.C. § 1350.—Criminal Penalty

An officer or employee of the United States

Government or of the District of Columbia

government knowingly and willfully violating

section 1341(a) or 1342 of this title shall be

fined not more than $5,000, imprisoned for

not more than 2 years, or both.

App.29a

49 U.S.C. § 40103.—Sovereignty and Use of Airspace

(a) Sovereignty and Public Right of Transit.—

(1) The United States Government has exclusive sovereignty of airspace of the United States.

(2) A citizen of the United States has a public

right of transit through the navigable airspace. To

further that right, the Secretary of Transportation

shall consult with the Architectural and Transportation Barriers Compliance Board established

under section 502 of the Rehabilitation Act of 1973

(29 U.S.C. 792) before prescribing a regulation

or issuing an order or procedure that will have a

significant impact on the accessibility of commercial airports or commercial air transportation for

handicapped individuals.

(b) Use of Airspace.—

(1) The Administrator of the Federal Aviation

Administration shall develop plans and policy

for the use of the navigable airspace and assign

by regulation or order the use of the airspace

necessary to ensure the safety of aircraft and the

efficient use of airspace. The Administrator may

modify or revoke an assignment when required

in the public interest.

(2) The Administrator shall prescribe air traffic

regulations on the flight of aircraft (including

regulations on safe altitudes) for—

(A) navigating, protecting, and identifying aircraft;

App.30a

(B) protecting individuals and property on the

ground;

(C) using the navigable airspace efficiently; and

(D) preventing collision between aircraft, between

aircraft and land or water vehicles, and

between aircraft and airborne objects.

49 U.S.C. § 47101.—Policies

(a) General.

It is the policy of the United States—

(1) that the safe operation of the airport and

airway system is the highest aviation priority;

(2) that aviation facilities be constructed and

operated to minimize current and projected noise

impact on nearby communities;

(3) to give special emphasis to developing reliever

airports;

(4) that appropriate provisions should be made

to make the development and enhancement of

cargo hub airports easier;

(5) to encourage the development of intermodal

connections on airport property between aeronautical and other transportation modes and systems

to serve air transportation passengers and cargo

efficiently and effectively and promote economic

development;

(6) that airport development projects under

this subchapter provide for the protection and

App.31a

enhancement of natural resources and the

quality of the environment of the United States;

(7) that airport construction and improvement

projects that increase the capacity of facilities to

accommodate passenger and cargo traffic be undertaken to the maximum feasible extent so that

safety and efficiency increase and delays decrease;

(8) to ensure that nonaviation usage of the navigable airspace be accommodated but not allowed

to decrease the safety and capacity of the airspace

and airport system;

(9) that artificial restrictions on airport capacity—

(A) are not in the public interest;

(B) should be imposed to alleviate air traffic

delays only after other reasonably available

and less burdensome alternatives have been

tried; and

(C) should not discriminate unjustly between

categories and classes of aircraft;

(10) that special emphasis should be placed on

converting appropriate former military air bases

to civil use and identifying and improving

additional joint-use facilities;

(11) that the airport improvement program should

be administered to encourage projects that employ

innovative technology (including integrated

in-pavement lighting systems for runways and

taxiways and other runway and taxiway incursion

prevention devices), concepts, and approaches

that will promote safety, capacity, and efficiency

App.32a

improvements in the construction of airports and

in the air transportation system (including the

development and use of innovative concrete and

other materials in the construction of airport

facilities to minimize initial laydown costs, minimize time out of service, and maximize lifecycle

durability) and to encourage and solicit innovative

technology proposals and activities in the expenditure of funding pursuant to this subchapter;

(12) that airport fees, rates, and charges must

be reasonable and may only be used for purposes

not prohibited by this subchapter; and

(13) that airports should be as self-sustaining as

possible under the circumstances existing at

each particular airport and in establishing new

fees, rates, and charges, and generating revenues

from all sources, airport owners and operators

should not seek to create revenue surpluses that

exceed the amounts to be used for airport system

purposes and for other purposes for which airport

revenues may be spent under section 47107(b)(1)

of this title, including reasonable reserves and

other funds to facilitate financing and cover

contingencies.

(b) National Transportation Policy.

(1) It is a goal of the United States to develop a

national intermodal transportation system that

transports passengers and property in an efficient

manner. The future economic direction of the

United States depends on its ability to confront

directly the enormous challenges of the global

economy, declining productivity growth, energy

App.33a

vulnerability, air pollution, and the need to

rebuild the infrastructure of the United States.

(2) United States leadership in the world

economy, the expanding wealth of the United

States, the competitiveness of the industry of

the United States, the standard of living, and

the quality of life are at stake.

(3) A national intermodal transportation system

is a coordinated, flexible network of diverse but

complementary forms of transportation that

transports passengers and property in the most

efficient manner. By reducing transportation costs,

these intermodal systems will enhance the ability

of the industry of the United States to compete

in the global marketplace.

(4) All forms of transportation, including aviation

and other transportation systems of the future,

will be full partners in the effort to reduce energy

consumption and air pollution while promoting

economic development.

(5) An intermodal transportation system consists

of transportation hubs that connect different

forms of appropriate transportation and provides

users with the most efficient means of transportation and with access to commercial centers,

business locations, population centers, and the

vast rural areas of the United States, as well as

providing links to other forms of transportation

and to intercity connections.

(6) Intermodality and flexibility are paramount

issues in the process of developing an integrated

system that will obtain the optimum yield of

United States resources.

App.34a

(7) The United States transportation infrastructure must be reshaped to provide the economic

underpinnings for the United States to compete

in the 21st century global economy. The United

States can no longer rely on the sheer size of its

economy to dominate international economic rivals

and must recognize fully that its economy is no

longer a separate entity but is part of the global

marketplace. The future economic prosperity of

the United States depends on its ability to compete

in an international marketplace that is teeming

with competitors but in which a full one-quarter

of the economic activity of the United States

takes place.

(8) The United States must make a national

commitment to rebuild its infrastructure through

development of a national intermodal transportation system. The United States must provide

the foundation for its industries to improve

productivity and their ability to compete in the

global economy with a system that will transport

passengers and property in an efficient manner.

(c) Capacity Expansion and Noise Abatement.

It is in the public interest to recognize the effects

of airport capacity expansion projects on aircraft

noise. Efforts to increase capacity through any means

can have an impact on surrounding communities.

Noncompatible land uses around airports must be

reduced and efforts to mitigate noise must be given a

high priority.

App.35a

(d) Consistency with Air Commerce and Safety

Policies.

Each airport and airway program should be

carried out consistently with section 40101(a), (b),

(d), and (f) of this title to foster competition, prevent

unfair methods of competition in air transportation,

maintain essential air transportation, and prevent

unjust and discriminatory practices, including as the

practices may be applied between categories and

classes of aircraft.

(e) Adequacy of Navigation Aids and Airport

Facilities.

This subchapter should be carried out to provide

adequate navigation aids and airport facilities for

places at which scheduled commercial air service is

provided. The facilities provided may include—

(1) reliever airports; and

(2) heliports designated by the Secretary of

Transportation to relieve congestion at commercial service airports by diverting aircraft

passengers from fixed-wing aircraft to helicopter

carriers.

(f)

Maximum Use of Safety Facilities.

This subchapter should be carried out consistently with a comprehensive airspace system plan,

giving highest priority to commercial service airports,

to maximize the use of safety facilities, including

installing, operating, and maintaining, to the extent

possible with available money and considering other

safety needs—

App.36a

(1) electronic or visual vertical guidance on each

runway;

(2) grooving or friction treatment of each primary

and secondary runway;

(3) distance-to-go signs for each primary and

secondary runway;

(4) a precision approach system, a vertical visual

guidance system, and a full approach light system

for each primary runway;

(5) a nonprecision instrument approach for each

secondary runway;

(6) runway end identifier lights on each runway

that does not have an approach light system;

(7) a surface movement radar system at each

category III airport;

(8) a taxiway lighting and sign system;

(9) runway edge lighting and marking;

(10) radar approach coverage for each airport

terminal area; and

(11) runway and taxiway incursion prevention

devices, including integrated in-pavement lighting

systems for runways and taxiways.

(g) Intermodal Planning.

To carry out the policy of subsection (a)(5) of this

section, the Secretary of Transportation shall take

each of the following actions:

(1) Coordination in development of airport plans

and programs.—Cooperate with State and local officials

in developing airport plans and programs that are

App.37a

based on overall transportation needs. The airport plans

and programs shall be developed in coordination with

other transportation planning and considering comprehensive long-range land-use plans and overall social,

economic, environmental, system performance, and

energy conservation objectives. The process of developing airport plans and programs shall be continuing,

cooperative, and comprehensive to the degree appropriate to the complexity of the transportation problems.

(2) Goals for airport master and system plans.—

Encourage airport sponsors and State and local officials

to develop airport master plans and airport system

plans that—

(A) foster effective coordination between aviation

planning and metropolitan planning;

(B) include an evaluation of aviation needs within

the context of multimodal planning; and

(C) are integrated with metropolitan plans to

ensure that airport development proposals

include adequate consideration of land use

and ground transportation access.

(3) Representation of airport operators on

mpo’s.—Encourage metropolitan planning organizations, particularly in areas with populations

greater than 200,000, to establish membership

positions for airport operators.

(h) Consultation.

To carry out the policy of subsection (a)(6) of this

section, the Secretary of Transportation shall consult

with the Secretary of the Interior and the Administrator of the Environmental Protection Agency about

App.38a

any project included in a project grant application

involving the location of an airport or runway, or a

major runway extension, that may have a significant

effect on—

(1) natural resources, including fish and wildlife;

(2) natural, scenic, and recreation assets;

(3) water and air quality; or

(4) another factor affecting the environment.

49 U.S.C. § 47103.—

National Plan of Integrated Airport Systems

(a) General Requirements and Considerations.—

The Secretary of Transportation shall maintain the

plan for developing public-use airports in the United

States, named “the national plan of integrated airport

systems”. The plan shall include the kind and estimated cost of eligible airport development the Secretary

of Transportation considers necessary to provide a

safe, efficient, and integrated system of public-use

airports adequate to anticipate and meet the needs of

civil aeronautics, to meet the national defense requirements of the Secretary of Defense, and to meet

identified needs of the United States Postal Service.

Airport development included in the plan may not be

limited to meeting the needs of any particular classes

or categories of public-use airports. In maintaining

the plan, the Secretary of Transportation shall consider

the needs of each segment of civil aviation and the

relationship of each airport to—

App.39a

(1) the rest of the transportation system in the

particular area;

(2) forecasted technological developments in aeronautics; and

(3) forecasted developments in other modes of

intercity transportation.

(b) Specific Requirements.—

In maintaining the plan, the Secretary of Transportation shall—

(1) to the extent possible and as appropriate,

consult with departments, agencies, and instrumentalities of the United States Government, with

public agencies, and with the aviation community;

(2) consider tall structures that reduce safety

or airport capacity; and

(3) make every reasonable effort to address the

needs of air cargo operations, Short Takeoff and

Landing/Very Short Takeoff and Landing aircraft

operations, and rotary wing aircraft operations.

(c) Availability of Domestic Military Airports and

Airport Facilities.

To the extent possible, the Secretary of Defense

shall make domestic military airports and airport

facilities available for civil use. In advising the Secretary of Transportation under subsection (a) of this

section, the Secretary of Defense shall indicate the

extent to which domestic military airports and airport

facilities are available for civil use.

App.40a

(d) Publication.

The Secretary of Transportation shall publish the

status of the plan every 2 years.

49 U.S.C. § 47107.—

Project Grant Application Approval Conditioned on

Assurances About Airport Operations

(a) General Written Assurances.—

The Secretary of Transportation may approve a

project grant application under this subchapter for

an airport development project only if the Secretary

receives written assurances, satisfactory to the Secretary, that—

(1) the airport will be available for public use on

reasonable conditions and without unjust discrimination;

(2) air carriers making similar use of the airport will be subject to substantially comparable

charges—

(A) for facilities directly and substantially

related to providing air transportation; and

(B) regulations and conditions, except for differences based on reasonable classifications,

such as between—

(i)

tenants and nontenants; and

(ii) signatory and nonsignatory carriers;

(3) the airport operator will not withhold unreasonably the classification or status of tenant or

signatory from an air carrier that assumes

App.41a

obligations substantially similar to those already

imposed on air carriers of that classification or

status;

(4) a person providing, or intending to provide,

aeronautical services to the public will not be

given an exclusive right to use the airport, with

a right given to only one fixed-base operator to

provide services at an airport deemed not to be

an exclusive right if—

(A) the right would be unreasonably costly, burdensome, or impractical for more than one

fixed-base operator to provide the services;

and

(B) allowing more than one fixed-base operator to

provide the services would require reducing

the space leased under an existing agreement

between the one fixed-base operator and the

airport owner or operator;

(5) fixed-base operators similarly using the airport will be subject to the same charges;

(6) an air carrier using the airport may service

itself or use any fixed-base operator allowed by

the airport operator to service any carrier at the

airport;

(7) the airport and facilities on or connected

with the airport will be operated and maintained

suitably, with consideration given to climatic

and flood conditions;

(8) a proposal to close the airport temporarily for

a nonaeronautical purpose must first be approved

by the Secretary;

App.42a

(9) appropriate action will be taken to ensure that

terminal airspace required to protect instrument

and visual operations to the airport (including

operations at established minimum flight altitudes) will be cleared and protected by mitigating

existing, and preventing future, airport hazards;

(10) appropriate action, including the adoption

of zoning laws, has been or will be taken to the

extent reasonable to restrict the use of land next

to or near the airport to uses that are compatible

with normal airport operations;

(11) each of the airport’s facilities developed

with financial assistance from the United States

Government and each of the airport’s facilities

usable for the landing and taking off of aircraft

always will be available without charge for use

by Government aircraft in common with other

aircraft, except that if the use is substantial, the

Government may be charged a reasonable share,

proportionate to the use, of the cost of operating

and maintaining the facility used;

(12) the airport owner or operator will provide,

without charge to the Government, property interests of the sponsor in land or water areas or

buildings that the Secretary decides are desirable

for, and that will be used for, constructing at

Government expense, facilities for carrying out

activities related to air traffic control or navigation;

(13) the airport owner or operator will maintain

a schedule of charges for use of facilities and

services at the airport—

App.43a

(A) that will make the airport as self-sustaining

as possible under the circumstances existing

at the airport, including volume of traffic

and economy of collection; and

(B) without including in the rate base used for

the charges the Government’s share of costs

for any project for which a grant is made

under this subchapter or was made under

the Federal Airport Act or the Airport and

Airway Development Act of 1970;

(14) the project accounts and records will be

kept using a standard system of accounting that

the Secretary, after consulting with appropriate

public agencies, prescribes;

(15) the airport owner or operator will submit

any annual or special airport financial and operations reports to the Secretary that the Secretary

reasonably requests and make such reports

available to the public;

(16) the airport owner or operator will maintain

a current layout plan of the airport that meets

the following requirements:

(A) the plan will be in a form the Secretary prescribes;

(B) the Secretary will approve the plan and any

revision or modification before the plan, revision, or modification takes effect;

(C) the owner or operator will not make or allow

any alteration in the airport or any of its

facilities if the alteration does not comply

with the plan the Secretary approves, and the

Secretary is of the opinion that the alteration

App.44a

may affect adversely the safety, utility, or

efficiency of the airport; and

(D) when an alteration in the airport or its

facility is made that does not conform to the

approved plan and that the Secretary decides

adversely affects the safety, utility, or efficiency of any property on or off the airport

that is owned, leased, or financed by the

Government, the owner or operator, if

requested by the Secretary, will—

(i)

eliminate the adverse effect in a way

the Secretary approves; or

(ii) bear all cost of relocating the property

or its replacement to a site acceptable

to the Secretary and of restoring the

property or its replacement to the level

of safety, utility, efficiency, and cost of

operation that existed before the alteration was made;

(17) each contract and subcontract for program

management, construction management, planning

studies, feasibility studies, architectural services,

preliminary engineering, design, engineering,

surveying, mapping, and related services will be

awarded in the same way that a contract for

architectural and engineering services is negotiated under chapter 11 of title 40 or an equivalent

qualifications-based requirement prescribed for

or by the sponsor;

(18) the airport and each airport record will be

available for inspection by the Secretary on reasonable request, and a report of the airport budget

App.45a

will be available to the public at reasonable times

and places;

(19) the airport owner or operator will submit to

the Secretary and make available to the public

an annual report listing in detail—

(A) all amounts paid by the airport to any other

unit of government and the purposes for

which each such payment was made; and

(B) all services and property provided to other

units of government and the amount of

compensation received for provision of each

such service and property;

(20) the airport owner or operator will permit, to

the maximum extent practicable, intercity buses

or other modes of transportation to have access

to the airport, but the sponsor does not have any

obligation under this paragraph, or because of it,

to fund special facilities for intercity bus service

or for other modes of transportation; and

(21) if the airport owner or operator and a person

who owns an aircraft agree that a hangar is to

be constructed at the airport for the aircraft at

the aircraft owner’s expense, the airport owner

or operator will grant to the aircraft owner for

the hangar a long-term lease that is subject to

such terms and conditions on the hangar as the

airport owner or operator may impose.

(b) Written Assurances on Use of Revenue.—

(1) The Secretary of Transportation may approve

a project grant application under this subchapter

for an airport development project only if the

App.46a

Secretary receives written assurances, satisfactory

to the Secretary, that local taxes on aviation fuel

(except taxes in effect on December 30, 1987)

and the revenues generated by a public airport will

be expended for the capital or operating costs

of—

(A) the airport;

(B) the local airport system; or

(C) other local facilities owned or operated by

the airport owner or operator and directly

and substantially related to the air transportation of passengers or property.

(2) Paragraph (1) of this subsection does not

apply if a provision enacted not later than September 2, 1982, in a law controlling financing by

the airport owner or operator, or a covenant or

assurance in a debt obligation issued not later

than September 2, 1982, by the owner or operator,

provides that the revenues, including local taxes

on aviation fuel at public airports, from any of

the facilities of the owner or operator, including the

airport, be used to support not only the airport

but also the general debt obligations or other

facilities of the owner or operator.

(3) This subsection does not prevent the use of

a State tax on aviation fuel to support a State

aviation program or the use of airport revenue

on or off the airport for a noise mitigation

purpose.

App.47a

(c) Written Assurances on Acquiring Land.—

(1) In this subsection, land is needed for an airport purpose (except a noise compatibility purpose)

if—

(A)

(i)

the land may be needed for an aeronautical purpose (including runway protection

zone) or serves as noise buffer land; and

(ii) revenue from interim uses of the land

contributes to the financial self-sufficiency of the airport; and

(B) for land purchased with a grant the owner or

operator received not later than December

30, 1987, the Secretary of Transportation or

the department, agency, or instrumentality

of the Government that made the grant was

notified by the owner or operator of the use

of the land and did not object to the use and

the land is still being used for that purpose.

(2) The Secretary of Transportation may approve

an application under this subchapter for an

airport development project grant only if the

Secretary receives written assurances, satisfactory

to the Secretary, that if an airport owner or

operator has received or will receive a grant for

acquiring land and—

(A) if the land was or will be acquired for a

noise compatibility purpose—

(i)

the owner or operator will dispose of the

land at fair market value at the earliest

practicable time after the land no longer

App.48a

is needed for a noise compatibility purpose;

(ii) the disposition will be subject to retaining or reserving an interest in the land

necessary to ensure that the land will be

used in a way that is compatible with

noise levels associated with operating

the airport; and

(iii) the part of the proceeds from disposing

of the land that is proportional to the

Government’s share of the cost of

acquiring the land will be paid to the

Secretary for deposit in the Airport and

Airway Trust Fund established under

section 9502 of the Internal Revenue

Code of 1986 (26 U.S.C. 9502) or, as the

Secretary prescribes, reinvested in an

approved noise compatibility project,

including the purchase of nonresidential

buildings or property in the vicinity of

residential buildings or property previously purchased by the airport as part

of a noise compatibility program; or

(B) if the land was or will be acquired for an

airport purpose (except a noise compatibility purpose)—

(i)

the owner or operator, when the land no

longer is needed for an airport purpose,

will dispose of the land at fair market

value or make available to the Secretary

an amount equal to the Government’s

proportional share of the fair market

value;

App.49a

(ii) the disposition will be subject to retaining or reserving an interest in the land

necessary to ensure that the land will

be used in a way that is compatible with

noise levels associated with operating

the airport; and

(iii) the part of the proceeds from disposing

of the land that is proportional to the

Government’s share of the cost of

acquiring the land will be reinvested, on

application to the Secretary, in another

eligible airport development project the

Secretary approves under this subchapter

or paid to the Secretary for deposit in

the Fund if another eligible project does

not exist.

(3) Proceeds referred to in paragraph (2)(A)(iii)

and (B)(iii) of this subsection and deposited in the

Airport and Airway Trust Fund are available as

provided in subsection (f) of this section.

(d) Assurances of Continuation as Public-Use Airport.

The Secretary of Transportation may approve an

application under this subchapter for an airport development project grant for a privately owned public-use

airport only if the Secretary receives appropriate

assurances that the airport will continue to function

as a public-use airport during the economic life (that

must be at least 10 years) of any facility at the

airport that was developed with Government financial

assistance under this subchapter.

App.50a

(e) Written Assurances of Opportunities for Small

Business Concerns.—

(1) The Secretary of Transportation may approve

a project grant application under this subchapter

for an airport development project only if the

Secretary receives written assurances, satisfactory

to the Secretary, that the airport owner or operator

will take necessary action to ensure, to the

maximum extent practicable, that at least 10

percent of all businesses at the airport selling

consumer products or providing consumer services

to the public are small business concerns (as

defined by regulations of the Secretary) owned

and controlled by a socially and economically

disadvantaged individual (as defined in section

47113(a) of this title) or qualified HUBZone small

business concerns (as defined in section 3(p) of

the Small Business Act).

(2) An airport owner or operator may meet the

percentage goal of paragraph (1) of this subsection by including any business operated through

a management contract or subcontract. The dollar

amount of a management contract or subcontract

with a disadvantaged business enterprise shall be

added to the total participation by disadvantaged

business enterprises in airport concessions and to

the base from which the airport’s percentage goal

is calculated. The dollar amount of a management

contract or subcontract with a non-disadvantaged

business enterprise and the gross revenue of

business activities to which the management

contract or subcontract pertains may not be

added to this base.

App.51a

(3) Except as provided in paragraph (4) of this

subsection, an airport owner or operator may meet

the percentage goal of paragraph (1) of this

subsection by including the purchase from disadvantaged business enterprises of goods and

services used in businesses conducted at the

airport, but the owner or operator and the

businesses conducted at the airport shall make

good faith efforts to explore all available options

to achieve, to the maximum extent practicable,

compliance with the goal through direct ownership

arrangements, including joint ventures and

franchises.

(4)

(A) In complying with paragraph (1) of this

subsection, an airport owner or operator shall

include the revenues of car rental firms at

the airport in the base from which the

percentage goal in paragraph (1) is calculated.

(B) An airport owner or operator may require a

car rental firm to meet a requirement under

paragraph (1) of this subsection by purchasing or leasing goods or services from a

disadvantaged business enterprise. If an

owner or operator requires such a purchase

or lease, a car rental firm shall be permitted to

meet the requirement by including purchases

or leases of vehicles from any vendor that

qualifies as a small business concern owned

and controlled by a socially and economically

disadvantaged individual or as a qualified

HUBZone small business concern (as defined

in section 3(p) of the Small Business Act).

App.52a

(C) This subsection does not require a car rental

firm to change its corporate structure to

provide for direct ownership arrangements

to meet the requirements of this subsection.

(5) This subsection does not preempt—

(A) a State or local law, regulation, or policy

enacted by the governing body of an airport

owner or operator; or

(B) the authority of a State or local government

or airport owner or operator to adopt or

enforce a law, regulation, or policy related

to disadvantaged business enterprises.

(6) An airport owner or operator may provide

opportunities for a small business concern owned

and controlled by a socially and economically

disadvantaged individual or a qualified HUBZone

small business concern (as defined in section 3(p)

of the Small Business Act) to participate through

direct contractual agreement with that concern.

(7) An air carrier that provides passenger or

property-carrying services or another business

that conducts aeronautical activities at an airport

may not be included in the percentage goal of

paragraph (1) of this subsection for participation

of small business concerns at the airport.

(8) Not later than April 29, 1993, the Secretary

of Transportation shall prescribe regulations to

carry out this subsection.

(f)

Availability of Amounts.

An amount deposited in the Airport and Airway

Trust Fund under—

App.53a

(1) subsection (c)(2)(A)(iii) of this section is

available to the Secretary of Transportation to

make a grant for airport development or airport

planning under section 47104 of this title;

(2) subsection (c)(2)(B)(iii) of this section is

available to the Secretary—

(A) to make a grant for a purpose described in

section 47115(b) of this title; and

(B) for use under section 47114(d)(2) of this title

at another airport in the State in which the

land was disposed of under subsection

(c)(2)(B)(ii) of this section; and

(3) subsection (c)(2)(B)(iii) of this section is in

addition to an amount made available to the

Secretary under section 48103 of this title and

not subject to apportionment under section 47114

of this title.

(g) Ensuring Compliance.—

(1) To ensure compliance with this section, the

Secretary of Transportation—

(A) shall prescribe requirements for sponsors that

the Secretary considers necessary; and

(B) may make a contract with a public agency.

(2) The Secretary of Transportation may approve

an application for a project grant only if the

Secretary is satisfied that the requirements

prescribed under paragraph (1)(A) of this subsection have been or will be met.

App.54a

(h) Modifying Assurances and Requiring Compliance With Additional Assurances.—

(1) In general.—Subject to paragraph (2), before

modifying an assurance required of a person

receiving a grant under this subchapter and in

effect after December 29, 1987, or to require

compliance with an additional assurance from

the person, the Secretary of Transportation must—

(A) publish notice of the proposed modification

in the Federal Register; and

(B) provide an opportunity for comment on the

proposal.

(2) Public notice before waiver of aeronautical

land-use assurance.—Before modifying an assurance under subsection (c)(2)(B) that requires any

property to be used for an aeronautical purpose,

the Secretary must provide notice to the public

not less than 30 days before making such

modification.

(i)

Relief from Obligation to Provide Free Space.

When a sponsor provides a property interest in a

land or water area or a building that the Secretary of

Transportation uses to construct a facility at Government expense, the Secretary may relieve the sponsor

from an obligation in a contract made under this

chapter, the Airport and Airway Development Act of

1970, or the Federal Airport Act to provide free space

to the Government in an airport building, to the

extent the Secretary finds that the free space no

longer is needed to carry out activities related to air

traffic control or navigation.

App.55a

(j)

Use of Revenue in Hawaii.—

(1) In this subsection—

(A) “duty-free merchandise” and “duty-free sales

enterprise” have the same meanings given

those terms in section 555(b)(8) of the Tariff

Act of 1930 (19 U.S.C. 1555(b)(8)).

(B) “highway” and “Federal-aid system” have the

same meanings given those terms in section

101(a) of title 23.

(2) Notwithstanding subsection (b)(1) of this section, Hawaii may use, for a project for construction

or reconstruction of a highway on a Federal-aid

system that is not more than 10 miles by road

from an airport and that will facilitate access to

the airport, revenue from the sales at off-airport

locations in Hawaii of duty-free merchandise under

a contract between Hawaii and a duty-free sales

enterprise. However, the revenue resulting during

a Hawaiian fiscal year may be used only if the

amount of the revenue, plus amounts Hawaii

receives in the fiscal year from all other sources

for costs Hawaii incurs for operating all airports

it operates and for debt service related to capital

projects for the airports (including interest and

amortization of principal costs), is more than

150 percent of the projected costs for the fiscal

year.

(3)

(A) Revenue from sales referred to in paragraph (2) of this subsection in a Hawaiian

fiscal year that Hawaii may use may not be

more than the amount that is greater than

App.56a

150 percent as determined under paragraph

(2).

(B) The maximum amount of revenue Hawaii

may use under paragraph (2) of this subsection is $250,000,000.

(4) If a fee imposed or collected for rent, landing,

or service from an aircraft operator by an airport

operated by Hawaii is increased during the

period from May 4, 1990, through December 31,

1994, by more than the percentage change in the

Consumer Price Index of All Urban Consumers

for Honolulu, Hawaii, that the Secretary of Labor

publishes during that period and if revenue

derived from the fee increases because the fee

increased, the amount under paragraph (3)(B) of

this subsection shall be reduced by the amount

of the projected revenue increase in the period less

the part of the increase attributable to changes

in the Index in the period.

(5) Hawaii shall determine costs, revenue, and

projected revenue increases referred to in this

subsection and shall submit the determinations

to the Secretary of Transportation. A determination is approved unless the Secretary disapproves

it not later than 30 days after it is submitted.

(6) Hawaii is not eligible for a grant under section

47115 of this title in a fiscal year in which

Hawaii uses under paragraph (2) of this subsection

revenue from sales referred to in paragraph (2).

Hawaii shall repay amounts it receives in a fiscal

year under a grant it is not eligible to receive

because of this paragraph to the Secretary of

App.57a

Transportation for deposit in the discretionary

fund established under section 47115.

(7)

(A) This subsection applies only to revenue from

sales referred to in paragraph (2) of this

subsection from May 5, 1990, through

December 30, 1994, and to amounts in the

Airport Revenue Fund of Hawaii that are

attributable to revenue before May 4, 1990,

on sales referred to in paragraph (2).

(B) Revenue from sales referred to in paragraph (2) of this subsection from May 5,

1990, through December 30, 1994, may be

used under paragraph (2) in any Hawaiian

fiscal year, including a Hawaiian fiscal year

beginning after December 31, 1994.

(k) Annual Summaries of Financial Reports.

The Secretary shall provide to the Committee on

Commerce, Science, and Transportation of the Senate

and the Committee on Transportation and Infrastructure of the House of Representatives an annual

summary of the reports submitted to the Secretary

under subsection (a)(19) of this section and under

section 111(b) of the Federal Aviation Administration

Authorization Act of 1994.

(l)

Policies and Procedures to Ensure Enforcement

Against Illegal Diversion of Airport Revenue.—

(1) In general.—Not later than 90 days after

August 23, 1994, the Secretary of Transportation shall establish policies and procedures that

will assure the prompt and effective enforcement

App.58a

of subsections (a)(13) and (b) of this section and

grant assurances made under such subsections.

Such policies and procedures shall recognize the

exemption provision in subsection (b)(2) of this

section and shall respond to the information

contained in the reports of the Inspector General

of the Department of Transportation on airport

revenue diversion and such other relevant

information as the Secretary may by law consider.

(2) Revenue diversion.—Policies and procedures

to be established pursuant to paragraph (1) of

this subsection shall prohibit, at a minimum, the

diversion of airport revenues (except as authorized

under subsection (b) of this section) through—

(A) direct payments or indirect payments, other

than payments reflecting the value of services

and facilities provided to the airport;

(B) use of airport revenues for general economic

development, marketing, and promotional

activities unrelated to airports or airport

systems;

(C) payments in lieu of taxes or other assessments that exceed the value of services

provided; or

(D) payments to compensate nonsponsoring

governmental bodies for lost tax revenues

exceeding stated tax rates.

(3) Efforts to be self-sustaining.—With respect

to subsection (a)(13) of this section, policies and

procedures to be established pursuant to paragraph (1) of this subsection shall take into account,

at a minimum, whether owners and operators of

App.59a

airports, when entering into new or revised

agreements or otherwise establishing rates,

charges, and fees, have undertaken reasonable

efforts to make their particular airports as selfsustaining as possible under the circumstances

existing at such airports.

(4) Administrative safeguards.—Policies and

procedures to be established pursuant to paragraph (1) shall mandate internal controls, auditing

requirements, and increased levels of Department

of Transportation personnel sufficient to respond

fully and promptly to complaints received

regarding possible violations of subsections (a)(13)

and (b) of this section and grant assurances

made under such subsections and to alert the

Secretary to such possible violations.

(5) Statute of limitations.—In addition to the

statute of limitations specified in subsection

(n)(7), with respect to project grants made under

this chapter—

(A) any request by a sponsor or any other governmental entity to any airport for additional

payments for services conducted off of the

airport or for reimbursement for capital

contributions or operating expenses shall be

filed not later than 6 years after the date on

which the expense is incurred; and

(B) any amount of airport funds that are used

to make a payment or reimbursement as

described in subparagraph (A) after the

date specified in that subparagraph shall be

considered to be an illegal diversion of airport

revenues that is subject to subsection (n).

App.60a

(m) Audit Certification.—

(1) In general.—The Secretary of Transportation, acting through the Administrator of the

Federal Aviation Administration, shall include a

provision in the compliance supplement provisions

to require a recipient of a project grant (or any

other recipient of Federal financial assistance

that is provided for an airport) to include as part

of an annual audit conducted under sections

7501 through 7505 of title 31, a review concerning

the funding activities with respect to an airport

that is the subject of the project grant (or other

Federal financial assistance) and the sponsors,

owners, or operators (or other recipients) involved.

(2) Content of review.—A review conducted

under paragraph (1) shall provide reasonable

assurances that funds paid or transferred to

sponsors are paid or transferred in a manner

consistent with the applicable requirements of

this chapter and any other applicable provision

of law (including regulations promulgated by the

Secretary or the Administrator).

(n) Recovery of Illegally Diverted Funds.—

(1) In general.—Not later than 180 days after

the issuance of an audit or any other report that

identifies an illegal diversion of airport revenues

(as determined under subsections (b) and (l) and

section 47133), the Secretary, acting through the

Administrator, shall—

(A) review the audit or report;

(B) perform appropriate factfinding; and

App.61a

(C) conduct a hearing and render a final determination concerning whether the illegal

diversion of airport revenues asserted in the

audit or report occurred.

(2) Notification.—Upon making such a finding,

the Secretary, acting through the Administrator,

shall provide written notification to the sponsor

and the airport of—

(A) the finding; and

(B) the obligations of the sponsor to reimburse

the airport involved under this paragraph.

(3) Administrative action.—The Secretary may

withhold any amount from funds that would otherwise be made available to the sponsor, including

funds that would otherwise be made available to

a State, municipality, or political subdivision

thereof (including any multimodal transportation

agency or transit authority of which the sponsor

is a member entity) as part of an apportionment

or grant made available pursuant to this title, if

the sponsor—

(A) receives notification that the sponsor is

required to reimburse an airport; and

(B) has had an opportunity to reimburse the

airport, but has failed to do so.

(4) Civil action.—If a sponsor fails to pay an

amount specified under paragraph (3) during the

180-day period beginning on the date of notification and the Secretary is unable to withhold a

sufficient amount under paragraph (3), the

Secretary, acting through the Administrator, may

initiate a civil action under which the sponsor

App.62a

shall be liable for civil penalty in an amount

equal to the illegal diversion in question plus

interest (as determined under subsection (o)).

(5) Disposition of penalties.—

(A) Amounts withheld.—The Secretary or the

Administrator shall transfer any amounts

withheld under paragraph (3) to the Airport

and Airway Trust Fund.

(B) Civil penalties.—With respect to any amount

collected by a court in a civil action under

paragraph (4), the court shall cause to be

transferred to the Airport and Airway Trust

Fund any amount collected as a civil penalty

under paragraph (4).

(6) Reimbursement.—The Secretary, acting

through the Administrator, shall, as soon as

practicable after any amount is collected from a

sponsor under paragraph (4), cause to be transferred from the Airport and Airway Trust Fund

to an airport affected by a diversion that is the

subject of a civil action under paragraph (4),

reimbursement in an amount equal to the amount

that has been collected from the sponsor under

paragraph (4) (including any amount of interest

calculated under subsection (o)).

(7) Statute of limitations.—No person may bring

an action for the recovery of funds illegally

diverted in violation of this section (as determined

under subsections (b) and (l)) or section 47133

after the date that is 6 years after the date on

which the diversion occurred.

App.63a

(o) Interest.—

(1) In general.—Except as provided in paragraph (2), the Secretary, acting through the

Administrator, shall charge a minimum annual

rate of interest on the amount of any illegal

diversion of revenues referred to in subsection

(n) in an amount equal to the average investment

interest rate for tax and loan accounts of the

Department of the Treasury (as determined by

the Secretary of the Treasury) for the applicable

calendar year, rounded to the nearest whole

percentage point.

(2) Adjustment of interest rates.—If, with respect

to a calendar quarter, the average investment

interest rate for tax and loan accounts of the

Department of the Treasury exceeds the average

investment interest rate for the immediately

preceding calendar quarter, rounded to the nearest

whole percentage point, the Secretary of the

Treasury may adjust the interest rate charged

under this subsection in a manner that reflects

that change.

(3) Accrual.—Interest assessed under subsection

(n) shall accrue from the date of the actual illegal

diversion of revenues referred to in subsection (n).

(4) Determination of applicable rate.—The applicable rate of interest charged under paragraph

(1) shall—

(A) be the rate in effect on the date on which

interest begins to accrue under paragraph

(3); and

App.64a

(B) remain at a rate fixed under subparagraph

(A) during the duration of the indebtedness.

(p) Payment by Airport to Sponsor.—

If, in the course of an audit or other review

conducted under this section, the Secretary or

the Administrator determines that an airport owes

a sponsor funds as a result of activities conducted

by the sponsor or expenditures by the sponsor for

the benefit of the airport, interest on that amount

shall be determined in the same manner as

provided in paragraphs (1) through (4) of subsection (o), except that the amount of any interest

assessed under this subsection shall be determined

from the date on which the Secretary or the

Administrator makes that determination.

(q)

Notwithstanding any written assurances prescribed in subsections (a) through (p), a general

aviation airport with more than 300,000 annual

operations may be exempt from having to accept

scheduled passenger air carrier service, provided that

the following conditions are met:

(1) No scheduled passenger air carrier has provided service at the airport within 5 years prior

to January 1, 2002.

(2) The airport is located within or underneath

the Class B airspace of an airport that maintains

an airport operating certificate pursuant to section

44706 of title 49.

(3) The certificated airport operating under

section 44706 of title 49 does not contribute to

App.65a

significant passenger delays as defined by DOT/

FAA in the “Airport Capacity Benchmark Report

2001”.

(r)

An airport that meets the conditions of subsections (q)(1) through (3) is not subject to section 47524

of title 49 with respect to a prohibition on all scheduled

passenger service.

(s) Competition Disclosure Requirement.—

(1) In general.—The Secretary of Transportation

may approve an application under this subchapter

for an airport development project grant for a

large hub airport or a medium hub airport only

if the Secretary receives assurances that the

airport sponsor will provide the information

required by paragraph (2) at such time and in

such form as the Secretary may require.

(2) Competitive access.—On February 1 and

August 1 of each year, an airport that during the

previous 6-month period has been unable to accommodate one or more requests by an air carrier for

access to gates or other facilities at that airport

in order to provide service to the airport or to

expand service at the airport shall transmit a

report to the Secretary that—

(A) describes the requests;

(B) provides an explanation as to why the

requests could not be accommodated; and

(C) provides a time frame within which, if any,

the airport will be able to accommodate the

requests.

App.66a

49 U.S.C. § 47151.—

Authority to transfer an interest in surplus property

(a) General Authority.

Subject to sections 47152 and 47153 of this title,

a department, agency, or instrumentality of the

executive branch of the United States Government or

a wholly owned Government corporation may convey

to a State, political subdivision of a State, or taxsupported organization any interest in surplus

property—

(1) that the Secretary of Transportation decides

is—

(A) desirable for developing, improving, operating, or maintaining a public airport (as

defined in section 47102 of this title);

(B) reasonably necessary to fulfill the immediate

and foreseeable future requirements for developing, improving, operating, or maintaining

a public airport; or

(C) needed for developing sources of revenue from

nonaviation businesses at a public airport;

and

(2) if the Administrator of General Services

approves the conveyance and decides the interest

is not best suited for industrial use.

(b) Ensuring Compliance.

Only the Secretary may ensure compliance with

an instrument conveying an interest in surplus

App.67a

property under this subchapter. The Secretary may

amend the instrument to correct the instrument or to

make the conveyance comply with law.

(c) Disposing of Interests Not Conveyed Under This

Subchapter.

An interest in surplus property that could be

used at a public airport but that is not conveyed under

this subchapter shall be disposed of under other

applicable law.

(d) Waiver of Condition.

Before the Secretary may waive any condition

imposed on an interest in surplus property conveyed

under subsection (a) that such interest be used for an

aeronautical purpose, the Secretary must provide

notice to the public not less than 30 days before waiving

such condition.

(e) Requests by Public Agencies.

Except with respect to a request made by another

department, agency, or instrumentality of the executive

branch of the United States Government, such a

department, agency, or instrumentality shall give

priority consideration to a request made by a public

agency (as defined in section 47102) for surplus

property described in subsection (a) (other than real

property that is subject to section 2687 of title 10,

section 201 of the Defense Authorization Amendments

and Base Closure and Realignment Act (10 U.S.C.

2687 note), or section 2905 of the Defense Base Closure

and Realignment Act of 1990 (10 U.S.C. 2687 note))

for use at a public airport.

App.68a

49 U.S.C. § 47152.—Terms of conveyances

Except as provided in section 47153 of this title,

the following terms apply to a conveyance of an interest

in surplus property under this subchapter:

(1) A State, political subdivision of a State, or

tax-supported organization receiving the interest

may use, lease, salvage, or dispose of the interest

for other than airport purposes only after the

Secretary of Transportation gives written consent

that the interest can be used, leased, salvaged,

or disposed of without materially and adversely

affecting the development, improvement, operation, or maintenance of the airport at which the

property is located.

(2) The interest shall be used and maintained

for public use and benefit without unreasonable

discrimination.

(3) A right may not be vested in a person,

excluding others in the same class from using

the airport at which the property is located—

(A) to conduct an aeronautical activity requiring

the operation of aircraft; or

(B) to engage in selling or supplying aircraft,

aircraft accessories, equipment, or supplies

(except gasoline and oil), or aircraft services

necessary to operate aircraft (including maintaining and repairing aircraft, aircraft

engines, propellers, and appliances).

(4) The State, political subdivision, or taxsupported organization accepting the interest

shall clear and protect the aerial approaches to

App.69a

the airport by mitigating existing, and preventing

future, airport hazards.

(5) During a national emergency declared by the

President or Congress, the United States Government is entitled to use, control, or possess, without

charge, any part of the public airport at which

the property is located. However, the Government

shall—

(A) pay the entire cost of maintaining the part

of the airport it exclusively uses, controls, or

possesses during the emergency;

(B) contribute a reasonable share, consistent with

the Government’s use, of the cost of maintaining the property it uses nonexclusively, or

over which the Government has nonexclusive

control or possession, during the emergency;

and

(C) pay a fair rental for use, control, or possession of improvements to the airport made

without Government assistance.

(6) The Government is entitled to the nonexclusive use, without charge, of the landing area of

an airport at which the property is located. The

Secretary may limit the use of the landing area

if necessary to prevent unreasonable interference

with use by other authorized aircraft. However,

the Government shall—

(A) contribute a reasonable share, consistent with

the Government’s use, of the cost of maintaining and operating the landing area; and

App.70a

(B) pay for damages caused by its use of the

landing area if its use of the landing area is

substantial.

(7) The State, political subdivision, or taxsupported organization accepting the interest

shall release the Government from all liability

for damages arising under an agreement that

provides for Government use of any part of an

airport owned, controlled, or operated by the State,

political subdivision, or tax-supported organization

on which, adjacent to which, or in connection

with which, the property is located.

(8) When a term under this section is not satisfied, any part of the interest in the property

reverts to the Government, at the option of the

Government, as the property then exists.

California Govt code 54956

A special meeting may be called at any time by

the presiding officer of the legislative body of a

local agency, or by a majority of the members of

the legislative body, by delivering written notice

to each member of the legislative body and to

each local newspaper of general circulation and

radio or television station requesting notice in

writing. The notice shall be delivered personally

or by any other means and shall be received at

least 24 hours before the time of the meeting as

specified in the notice. The call and notice shall

specify the time and place of the special meeting

and the business to be transacted or discussed.

No other business shall be considered at these

App.71a

meetings by the legislative body. The written

notice may be dispensed with as to any member

who at or prior to the time the meeting convenes

files with the clerk or secretary of the legislative

body a written waiver of notice. The waiver may

be given by telegram. The written notice may

also be dispensed with as to any member who is

actually present at the meeting at the time it

convenes.

The call and notice shall be posted at least 24

hours prior to the special meeting in a location

that is freely accessible to members of the public.

California Govt code §54960.

(a) The district attorney or any interested

person may commence an action by mandamus,

injunction, or declaratory relief for the purpose

of stopping or preventing violations or threatened

violations of this chapter by members of the

legislative body of a local agency or to determine

the applicability of this chapter to actions or

threatened future action of the legislative body,

or to determine whether any rule or action by

the legislative body to penalize or otherwise

discourage the expression of one or more of its

members is valid or invalid under the laws of

this state or of the United States, or to compel

the legislative body to audio record its closed

sessions as hereinafter provided.

App.72a

10.04.020—posting of Agendas for Special and Emergency Meetings.

(a) At least twenty-four hours before a special

meeting of the City Council or any City board or

commission, an agenda of the special meeting

shall be conspicuously posted specifying the time

and location of the special meeting and a brief

general description of each item of business to be

transacted or discussed at the special meeting.

(b) Notice of the meeting shall be provided City

Council and board members or commissioners in

the manner provided for in Government Code

Section 54956.

(c) Unless an emergency occurs that severely

impairs public health or safety, no business other

than that which appears on the posted agenda

may be transacted at the special meeting.

(d) Emergency meetings of the City Council,

boards and commissions may be called and conducted in accordance with the provisions of

Government Code Section 54956.5.

JUDICIAL RULES

Federal Rule of Civil Procedure Rule 5—

Serving and Filing Pleadings and Other Papers

(a) Service: When Required

(1) In General

Unless these rules provide otherwise, each of the

following papers must be served on every party:

App.73a

(A) an order stating that service is required;

(B) a pleading filed after the original complaint,

unless the court orders otherwise under

Rule 5(c) because there are numerous

defendants;

(C) a discovery paper required to be served on a

party, unless the court orders otherwise;

(D) a written motion, except one that may be

heard ex parte; and

(E) a written notice, appearance, demand, or

offer of judgment, or any similar paper.

(2) If a Party Fails to Appear

No service is required on a party who is in

default for failing to appear. But a pleading that

asserts a new claim for relief against such a

party must be served on that party under Rule 4.

(3) Seizing Property

If an action is begun by seizing property and no

person is or need be named as a defendant, any

service required before the filing of an appearance,

answer, or claim must be made on the person

who had custody or possession of the property

when it was seized.

(b) Service: How Made

(1) Serving an Attorney

If a party is represented by an attorney, service

under this rule must be made on the attorney

unless the court orders service on the party.

App.74a

(2) Service in General

A paper is served under this rule by:

(A) handing it to the person;

(B) leaving it:

(i)

at the person’s office with a clerk or

other person in charge or, if no one is in

charge, in a conspicuous place in the

office; or

(ii) if the person has no office or the office

is closed, at the person’s dwelling or

usual place of abode with someone of

suitable age and discretion who resides

there;

(C) mailing it to the person’s last known

address—in which event service is complete

upon mailing;

(D) leaving it with the court clerk if the person

has no known address;

(E) sending it to a registered user by filing it

with the court’s electronic-filing system or

sending it by other electronic means that

the person consented to in writing—in

either of which events service is complete

upon filing or sending, but is not effective if

the filer or sender learns that it did not

reach the person to be served; or

(F) delivering it by any other means that the

person consented to in writing—in which

event service is complete when the person

making service delivers it to the agency

designated to make delivery.

App.75a

(3) Using Court Facilities

[Abrogated (Apr._, 2018, eff. Dec. 1, 2018)]

(c) Serving Numerous Defendants

(1) In General

If an action involves an unusually large number

of defendants, the court may, on motion or on its

own, order that:

(A) defendants’ pleadings and replies to them

need not be served on other defendants;

(B) any crossclaim, counterclaim, avoidance, or

affirmative defense in those pleadings and

replies to them will be treated as denied or

avoided by all other parties; and

(C) filing any such pleading and serving it on

the plaintiff constitutes notice of the pleading

to all parties.

(2) Notifying Parties

A copy of every such order must be served on the

parties as the court directs.

(d) Filing

(1) Required Filings; Certificate of Service

(A) Papers After the Complaint

Any paper after the complaint that is required to

be served—must be filed no later than a reasonable

time after service. But disclosures under Rule

26(a)(1) or (2) and the following discovery requests

and responses must not be filed until they are

App.76a

used in the proceeding or the court orders filing:

depositions, interrogatories, requests for documents or tangible things or to permit entry onto

land, and requests for admission.

(B) Certificate of Service

No certificate of service is required when a

paper is served by filing it with the court’s

electronic-filing system. When a paper that is

required to be served is served by other means:

(i)

if the paper is filed, a certificate of service

must be filed with it or within a reasonable

time after service; and

(ii) if the paper is not filed, a certificate of

service need not be filed unless filing is

required by court order or by local rule.

(2) Nonelectronic Filing

A paper not filed electronically is filed by delivering

it:

(A) to the clerk; or

(B) to a judge who agrees to accept it for filing,

and who must then note the filing date on

the paper and promptly send it to the clerk.

(3) Electronic Filing and Signing

(A) By a Represented Person—Generally

Required; Exceptions

A person represented by an attorney must file

electronically, unless nonelectronic filing is allowed

by the court for good cause or is allowed or

required by local rule.

App.77a

(B) By an Unrepresented Person—When

Allowed or Required

A person not represented by an attorney:

(i)

may file electronically only if allowed by court

order or by local rule; and

(ii) may be required to file electronically only

by court order, or by a local rule that

includes reasonable exceptions.

(C) Signing

A filing made through a person’s electronic-filing

account and authorized by that person, together

with that person’s name on a signature block,

constitutes the person’s signature.

(D) Same as a Written Paper

A paper filed electronically is a written paper for

purposes of these rules.

(4) Acceptance by the Clerk

The clerk must not refuse to file a paper solely

because it is not in the form prescribed by these

rules or by a local rule or practice.

Fed. R. Civ. P. 6

(d) Additional Time After Certain Kinds of

Service. When a party may or must act within a

specified time after being served and service is

made under Rule 5(b)(2)(C) (mail), (D) (leaving

with the clerk), or (F) (other means consented

App.78a

to), 3 days are added after the period would

otherwise expire under Rule 6(a).

Fed. R. Civ. P. 12

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified

by this rule or a federal statute, the time for

serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i)

within 21 days after being served with

the summons and complaint; or

(ii) if it has timely waived service under Rule

4(d), within 60 days after the request

for a waiver was sent, or within 90 days

after it was sent to the defendant outside

any judicial district of the United States.

Fed. R. Civ. P. 15

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party

may amend its pleading once as a matter of course

within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive

pleading is required, 21 days after service of

a responsive pleading or 21 days after service

of a motion under Rule 12(b), (e), or (f), whichever is earlier.

App.79a

(2) Other Amendments. In all other cases, a party

may amend its pleading only with the opposing

party’s written consent or the court’s leave. The

court should freely give leave when justice so

requires.

(3) Time to Respond. Unless the court orders

otherwise, any required response to an amended

pleading must be made within the time remaining to respond to the original pleading or within

14 days after service of the amended pleading,

whichever is later.

Fed. R. Civ. P. 55

(a) Entering a Default.

When a party against whom a judgment for affirmative relief is sought has failed to plead or

otherwise defend, and that failure is shown by

affidavit or otherwise, the clerk must enter the

party’s default.

Central District Local Rule 7-19

L.R. 7-19 Ex Parte Application.

An application for an ex parte order shall be

accompanied by a memorandum containing, if

known, the name, address, telephone number and

e-mail address of counsel for the opposing party,

the reasons for the seeking of an ex parte order,

and points and authorities in support thereof.

App.80a

An applicant also shall lodge the proposed ex parte

order.

L.R. 7-19.1 Notice of Application.

It shall be the duty of the attorney so applying

(a) to make reasonable, good faith efforts orally

to advise counsel for all other parties, if known,

of the date and substance of the proposed ex

parte application and (b) to advise the Court in

writing and under oath of efforts to contact other

counsel and whether any other counsel, after such

advice, opposes the application.

California Public Resources Code § 21177

An action or proceeding to attack, review, set

aside, void, or annul the following acts or decisions

of a public agency on the grounds of noncompliance

with this division shall be commenced as follows:

(a) An action or proceeding alleging that a public

agency is carrying out or has approved a

project that may have a significant effect on

the environment without having determined

whether the project may have a significant

effect on the environment shall be commenced

within 180 days from the date of the public

agency’s decision to carry out or approve the

project, or, if a project is undertaken without

a formal decision by the public agency, within

180 days from the date of commencement of

the project.

App.81a

California Public Resources Code § 21066

“Person” includes any person, firm, association,

organization, partnership, business, trust, corporation, limited liability company, company, district,

county, city and county, city, town, the state,

and any of the agencies and political subdivisions

of those entities, and, to the extent permitted by

federal law, the United States, or any of its

agencies or political subdivisions.

California Code of Civil Procedure § 1021.5 (private

attorney general)

Upon motion, a court may award attorneys’ fees

to a successful party against one or more opposing

parties in any action which has resulted in the

enforcement of an important right affecting the

public interest if: (a) a significant benefit, whether

pecuniary or nonpecuniary, has been conferred

on the general public or a large class of persons,

(b) the necessity and financial burden of private

enforcement, or of enforcement by one public

entity against another public entity, are such as

to make the award appropriate, and (c) such fees

should not in the interest of justice be paid out

of the recovery, if any. With respect to actions

involving public entities, this section applies to

allowances against, but not in favor of, public

entities, and no claim shall be required to be filed

therefor, unless one or more successful parties

and one or more opposing parties are public

entities, in which case no claim shall be required

to be filed therefor under Part 3 (commencing

App.82a

with Section 900) of Division 3.6 of Title 1 of the

Government Code.

Attorneys’ fees awarded to a public entity pursuant to this section shall not be increased or

decreased by a multiplier based upon extrinsic

circumstances, as discussed in Serrano v. Priest,

20 Cal. 3d 25, 49.

Central District of California L.R. 5-3.2.1—Service

Upon the electronic filing of a document, a “Notice

of Electronic Filing” (“NEF”) will be automatically

generated by the CM/ECF System and sent by email to: (1) all attorneys who have appeared in

the case in this Court and (2) all pro se parties

who have been granted leave to file documents

electronically in the case pursuant to L.R. 54.1.1 or who have appeared in the case and are

registered to receive service through the CM/ECF

System pursuant to L.R. 5-3.2.2. Unless service

is governed by F.R.Civ.P. 4 or L.R. 79-5.3, service

with this electronic NEF will constitute service

pursuant to the Federal Rules of Civil and

Criminal Procedure, and the NEF itself will constitute proof of service for individuals so served.

Individuals who have not appeared in the case

in this Court or who are not registered for the

CM/ECF System must be served in accordance

with F.R.Civ.P. 5, and proof of service on such

individuals must be made by declaration in the

form required by L.R. 5-3.1.2.

App.83a

Central District of California L.R. 7-12—

Failure to File Required Documents

The Court may decline to consider any memorandum or other document not filed within the

deadline set by order or local rule. The failure to

file any required document, or the failure to file

it within the deadline, may be deemed consent

to the granting or denial of the motion, with the

exception that a motion pursuant to F.R.Civ.P. 56

may not be granted solely based on the failure to

file an opposition

Central District of California L.R. 83-2.1.1—

Appearance Before the Court

L.R. 83-2.1.1.1—Who May Appear

Except as provided in L.R. 83-2.1.3, 83-2.1.4, 832.1.5, 83-4.5, and F.R.Civ.P. 45(f), an appearance

before the Court on behalf of another person, an

organization, or a class may be made only by

members of the Bar of this Court, as defined in

L.R. 83-2.1.2.

Central District of California L.R. 83-2.1.2—

The Bar of this Court

L.R. 83-2.1.2.1—In General

Admission to and continuing membership in the

Bar of this Court are limited to persons of good

moral character who are active members in good

standing of the State Bar of California. If an

App.84a

attorney admitted to the Bar of this Court ceases

to meet these criteria, the attorney will be subject

to the disciplinary rules of the Court, infra.

Central District of California L.R. 83-2.1.4—

Attorneys for the United States, or Its Departments

or Agencies

L.R. 83-2.1.4.1—Attorney for the United States, or

its Departments or Agencies

Any person who is not eligible for admission under

L.R. 83-2.1.2 or 83-2.1.3, who is employed within

this state and is a member in good standing of,

and eligible to practice before, the bar of any

United States Court, the District of Columbia

Court of Appeals, or the highest court of any State,

Territory or Insular Possession of the United

States, and is of good moral character, may be

granted leave of court to practice in this Court in

any matter for which such person is employed or

retained by the United States, or its departments

or agencies. The application for such permission

must include a certification filed with the Clerk

showing that the applicant has applied to take the

next succeeding Bar Examination for admission

to the State Bar of California for which that

applicant is eligible. No later than one year after

submitting the foregoing application, the applicant

must submit to this Court proof of admission to

the State Bar of California. Failure to do so will

result in revocation of permission to practice in

this Court.

App.85a

California Business and Professions Code 6125

No person shall practice law in California unless

the person is an active licensee of the State Bar.

California Business and Professions Code 6126

(a) Any person advertising or holding himself

or herself out as practicing or entitled to practice

law or otherwise practicing law who is not an

active licensee of the State Bar, or otherwise

authorized pursuant to statute or court rule to

practice law in this state at the time of doing so,

is guilty of a misdemeanor punishable by up to

one year in a county jail or by a fine of up to one

thousand dollars ($1,000), or by both that fine

and imprisonment. Upon a second or subsequent

conviction, the person shall be confined in a county

jail for not less than 90 days, except in an unusual

case where the interests of justice would be served

by imposition of a lesser sentence or a fine. If the

court imposes only a fine or a sentence of less than

90 days for a second or subsequent conviction

under this subdivision, the court shall state the

reasons for its sentencing choice on the record.

(b) Any person who has been involuntarily

enrolled as an inactive licensee of the State Bar,

or whose license has been suspended, or has been

disbarred, or has resigned from the State Bar with

charges pending, and thereafter practices or

attempts to practice law, advertises or holds

himself or herself out as practicing or otherwise

entitled to practice law, is guilty of a crime

punishable by imprisonment pursuant to subdi-

App.86a

vision (h) of Section 1170 of the Penal Code or in

a county jail for a period not to exceed six months.

However, any person who has been involuntarily

enrolled as an inactive licensee of the State Bar

pursuant to paragraph (1) of subdivision (e) of

Section 6007 and who knowingly thereafter practices or attempts to practice law, or advertises or

holds himself or herself out as practicing or

otherwise entitled to practice law, is guilty of a

crime punishable by imprisonment pursuant to

subdivision (h) of Section 1170 of the Penal Code

or in a county jail for a period not to exceed six

months.

(c) The willful failure of a licensee of the State

Bar, or one who has resigned or been disbarred,

to comply with an order of the Supreme Court to

comply with Rule 9.20 of the California Rules of

Court, constitutes a crime punishable by imprisonment pursuant to subdivision (h) of Section 1170

of the Penal Code or in a county jail for a period

not to exceed six months.

(d) The penalties provided in this section are

cumulative to each other and to any other

remedies or penalties provided by law.

California Business and Professions Code 6127

The following acts or omissions in respect to the

practice of law are contempt’s of the authority of

the courts:

(a) Assuming to be an officer or attorney of a

court and acting as such, without authority.

App.87a

(b) Advertising or holding oneself out as practicing or as entitled to practice law or otherwise practicing law in any court, without

being an active licensee of the State Bar.

Proceedings to adjudge a person in contempt of

court under this section are to be taken in

accordance with the provisions of Title V of Part

III of the Code of Civil Procedure.

California State Bar Rule 5.5

(b) A lawyer who is not admitted to practice

law in California shall not:

(1) except as authorized by these rules or other

law, establish or maintain a resident office

or other systematic or continuous presence

in California for the practice of law; or

(2) hold out to the public or otherwise represent

that the lawyer is admitted to practice law

in California.

Santa Monica City Charter § 613 Open Meetings.

(a) Unless otherwise permitted by federal or

state law, City Council meetings shall be open

and accessible to all members of the public. The

City Council may hold its meetings in the City

Council Chambers of the City Hall or at such

other locations as the City Council may by

ordinance or resolution designate.

(b) The City Council shall by ordinance establish

procedures for informing the public of its

meetings. The ordinance shall ensure that, to

App.88a

the maximum extent feasible, the public is

provided with timely and adequate notice of City

Council agenda and that the public is provided

with the opportunity to comment on proposed

City Council actions.