Amicus Curiae Brief — Montauk-Caribbean Airways, Inc. v. Hope

que® No. 85-2102

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

MONTAUK-CARIBBEAN AIRWAYS, INC.,

d/b/a LONG ISLAND AIRLINES,

Petitioner,

Vv.

JUDITH HOPE, et al.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

REGIONAL AIRLINE ASSOCIATION IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CALVIN DAVISON *

DAVID T. RALSTON, JR.

CROWELL & MORING

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 452-5800

Counsel for Amicus Curiae

Regional Airline Association

* Counsel of Record

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-2102

MONTAUK-CARIBBEAN AIRWAYS, INC.,

d/b/a LONG ISLAND AIRLINES,

Petitioner,

v.

JUDITH HOPE, et al.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The Regional Airline Association (“the RAA”’) hereby

respectfully moves for leave to file the attached brief

amicus curiae in this case. The consent of petitioner

has been obtained and filed with the Court. The consent

of the several respondents was requested but refused.

The RAA is the trade association of the regional/com-

muter air carrier industry. The RAA represents a sub-

stantial segment of that industry, and the regional/

commuter carriers are a substantial part of the national

air transportation system. Regional/commuter air car-

riers are carriers which operate primarily with aircraft

of 60 seats or fewer or 18,000 pounds payload or less.

The RAA has 76 air carrier members whose operations

constitute substantially more than 50 percent of the reve-

nue passenger miles operated by this class of carrier in

1985. In 1985, the regional/commuter carrier industry

served 854 airports in the United States and carried over

27.3 million passengers. Petitioner is an air carrier

member of the RAA.'*

The RAA’s air carrier members have a substantial

interest in the decision rendered by the Second Circuit,

specifically the issues of Federal preemption and private

actions with respect to the Federal aviation laws, the

underlying interstate commerce and Federal supremacy

constitutional issues, and whether violations of the Fed-

eral aviation laws are cognizable under 42 U.S.C. § 1983

(1982 and Supp. 1984). Those issues are immediately

relevant to the disposition of this case.

The Second Circuit’s decision, when viewed in its

proper and complete context, touches upon the core rela-

tionship among air carriers, airports and the Federal

Government in the operation and management of the

national air transportation system. The decision would

significantly expand the scope of airport operators’ pro-

prietary powers and rights that are not preempted by

Federal law, to the detriment of a sound national air

transportation system and the Federal Government’s

administration of the airways. In short, the decision per-

mits airports, by virtue of their proprietary powers, to

maintain exclusive use rights for airport facilities, to

discriminate unjustly among air carriers and to regulate

the rates, routes and services of air carriers. The ad-

verse effects of those developments on the RAA’s mem-

bers, and the national air transportation system, are

apparent. Furthermore, the Court of Appeals decision

limits the ability of air carriers to seek relief in Federal

court from an airport’s violations of Federal statutory

requirements. The regional/commuter airlines have a

clear and vital interest in each of these important Fed-

eral matters.

The RAA has consistently advocated fair and non-

discriminatory access for all air carriers to airports and

1The RAA was not a party to this action in the lower courts.

airport facilities, and it has been a strong proponent of

Federal supervision of airport access restrictions, con-

sistent with airport operators’ proprietary powers and

rights and the interests of communities surrounding

airports.

The RAA’s members have an obvious interest in main-

taining fair and non-discriminatory access to airports.

As air carriers, they have a vital stake in the free flow

of interstate commerce and the national air transporta-

tion policy that air carriers, in response to market forces,

determine rates, routes and services unfettered by local

regulation. Interstate air commerce will be severely bur-

dened, and the national air transportation policy frus-

trated, unless all air carriers have non-discriminatory

access to airports and airport facilities and the Federal

prohibitions against exclusive use rights and unjust dis-

crimination are applied in a uniform manner at airports

throughout the Nation.

As the representative of a major segment of the air

carrier industry, the RAA would bring to this proceeding

an interest broader than that represented by the parties.

Additionally, the RAA has greater familiarity with the

national significance of the Second Circuit’s decision and

how it will impact upon the air carrier industry and the

national air transportation system. Finally, the RAA

has a substantial background in Federal aviation law

and airport access restriction matters. The RAA has

represented its members before the United States Depart-

ment of Transportation and its constituent agency, the

Federal Aviation Administration, as well as participated

in Federal court litigation concerning preemption under

the Federal aviation laws, discriminatory treatment of

air carriers and airport access restrictions, precisely the

matters raised here.”

2 The RAA has propounded two additional Questions Presented

so that the issues pertinent to the administartion of the Federal

aviation laws might be raised directly. The RAA’s Questions

Respectfully submitted,

CALVIN DAVISON *

DAVID T. RALSTON, JR. -

CROWELL & MORING

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 452-5800

Counsel for Amicus Curiae

Regional Airline Association

* Counsel of Record

Date: August 8, 1986

Presented, which are fairly encompassed in Questions Nos. 1 and

3 propounded by petitioner, are raised in addition to petitioner’s

questions.

QUESTIONS PRESENTED

Petitioner alleges that the Town of East Hampton,

New York. acting under color of state statute, refuses to

terminate exclusive lease arrangements with an air car-

rier at its municipally-owned, federally-funded airport,

thereby discriminating against petitioner’s air carrier

services, precluding petitioner from providing passenger

and aircraft support necessary for successful air carrier

operations at the airport, and placing petitioner’s services

at a competitive disadvantage. The Court of Appeals

held, in part, that the Town’s refusal to end the exclusive

lease arrangements is a valid exercise of its proprietary

powers and rights under the state statute and is not pre-

empted by federal law.

1. Are proprietary powers and rights recognized under

Section 105(b)(1) of the Federal Aviation Act pre-

empted by Section 105(a) (1) of that Act if those powers

and rights are exercised in a manner which relates to, or

affects, the rates, routes or services of an air carrier?

2. May the Town’s refusal to terminate its exclusive

lease arrangements be recognized under Section 105(b)

(1) of the Federal Aviation Act as a lawful exercise of

proprietary powers or rights, and may New York law

authorize such exclusive lease arrangements at a feder-

ally-funded airport, when Section 308(a) of the Federal

Aviation Act, and Section 511(a) of the Airport and

Airway Improvement Act of 1982, bar exclusive use

rights and unjust discrimination against air carriers at

any federally-funded airport?

(i)

TABLE OF CONTENTS

Mes OR BAT EROS BID hoccccitinnstesnessssnsccnnsannsunseosivenns

INTEREST OF THE AMICUS CURIAE

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. The Second Circuit’s Decision Raises Important

EE.

Il.

CONCLUSION

Federal Matters, Conflicts In Principle With

Other Circuits and Will Have a Major Adverse

Impact on the National Air Transportation

NINN wii hick atecendcotscnchimenenubcannesarentcconmamnsdeloutics

The Town’s Conduct, and the New York Statute

Upon Which It Relies, Are Preempted by Fed-

eral Law

B. Preemption Under Section 105(a) (1) of the

eee eee ee

C. Preemption Under Section 308(a) of the

Federal Aviation Act and Section 511(a) of

I pati a alr snteiedntatencoblicistaneveion

D. The Decision Conflicts In Principle With

Other Circuits and Well-Established Legal

Principles

E. Review is Warranted; However, Remand

Br TD IID neces seiccccccseisepnccessessicine

The Provisions of Section 511(a) of the AAIA

Are Enforceable Under 42 U.S.C. § 1983 or ina

Private Action by an Air Carrier

(iii)

Page

13

15

17

18

20

iv

TABLE OF AUTHORITIES

CASES: Page

Arrow Air, Inc. v. Port Authority of New York,

602 F. Supp. 314 (S.D.N.Y. 1985) ........................ 17

British Airways Board v. Port Authority of New

York, 668 F.2d 76 (2d Cir. 1977) ........................ 16

British Airways Board v. Port Authority of New

York, 564 F.2d 1002 (2d Cir. 1977) .........00.00...... 16

City of Burbank v. Lockheed Air Terminal, Inc.,

BE er IN ckpleleticnishinnnsnteeintaiiclehoinnntitt 16

City of Dallas v. Southwest Airlines Co., 371 F.

I, Die Cesare ee TOD aciccntrtetnncicseeeoncniicen 7, 15

City of Pompano Beach v. FAA, 774 F.2d 1529

NE I, I act ee ee 15, 19, 20

Gibbons v. Ogden, 22 U.S. (9 Wheat.’ 1, 6 L. Ed.

erg De eidnaaemen 12, 14

Global International Airways Corp. v. Port Au-

thority of New York, 727 F.2d 246 (2d Cir.

NESE aD RR AD CT AIA ERE SS: UI EARS Hs EE OREN 17

Hingson v. Pacific Southwest Airlines, Inc., 743

ae eee Geen Ga: See ca... 12

J.I. Case Co. v. Borak, 8377 U.S. 426 (1964) ............ 20

Jones v. Rath Packing Co., 430 U.S. 519 (1977).... 12,14

Nattonal Aviation v. City of Hayward, 418 F. Supp.

A ns ie I irene a ciaecteccectraeerctienes 17

New York Airlines, Inc. v. Dukes County, 623 F.

Shpw. 14565 (DD. Biees. 1GGB) ......2cccccccscccccscncosns- 16, 18

Niswonger v. American Aviation, Inc., 411 F. Supp.

as a I occ accencecmticilsn tadseicohendaacisnbaican 15

Pinehurst Airlines, Inc. v. Resort Air Services,

Inc., 476 F. Supp. 543 (M.D.N.C. 1979) ...... ages 3

San Diego Unified Port District v. Superior Court,

136 Cal. Rptr. 551 (Cal. Ct. App. 4th Dist.

2 ERROR Ceca at ee ee reer SONORA OST Ne UO 16

Santa Monica Airport Ass’n v. City of Santa Mon-

ica, 659 F.2d 100 (9th Cir. 1981) .............0........... 17

The Interface Group, Inc. v. Massachusetts Port

Authority, 631 F. Supp. 483 (D. Mass. 1986)... 18

Town of Hallie v. City of Eau Claire, US.

fe ek IED sectstcnscscsmserccctennensnines 8

Vv

TABLE OF AUTHORITIES—Continued

Page

United States v. State of New York, 552 F. Supp.

ERE I CLI BEET AE SON 14, 16

United States v. Westchester County, 571 F. Supp.

Re 8 & Ae | ERR ee eee 14, 16, 19, 20

Wardair Canada, Inc. v. Florida Dep’t of Revenue,

4 US.1.W. 4607 (U.S. 1906) ............................ 6, 11

CONSTITUTION, STATUTES AND RULES:

Se ea Na i MR OB ales erecta ctrrninniintnwnnneenns 7

acs Pe I aa tite eensnbeintnatiln 12

Airline Deregulation Act of 1978, Pub. L. No. 95-

504, 92 Stat. 1705 et seq. (1978) ..............00022222..2--- passim

Airport and Airway Development Act of 1970,

Pub. L. No. 91-258, 84 Stat. 219 et seq., title 1,

eR Bis Foe oc | Aen eeeneeN 16

Airport and Airway Improvement Act of 1982,

Pub. L. No. 97-248, 96 Stat. 671 et seq., § 511,

a isa ceecisreentecaccnneeeoscommanetianeee passim

Civil Rights Laws, 42 U.S.C. § 1983 (1982 and

RTI ca ae passim

Federal Aviation Act of 1958, 49 U.S.C. § 1301

et seq.

a I cael passim

fe 28 | om 8) ERR ceeeeent mee eye nate passim

bo Re fee te fF Senne seeeeee 19

es SG AE ION ooo sricchinacdimsncatacceostenconbecs 11

14C.F.R.:

Pt. 13 (1986) :

5, REE BR een ore 8 eeues: 19

gp RN DARLENE OCLC cbt 19

OP I hick Ssh ors Sreesthoeslnaetcdecetsiga oblate itlrddcaedln ost placa 17

Pt. 152 "

PE sccxiccsvinnatoustiasttons sducteiceadieaiadneuaatnbeadaias 19

(RELI FOR Ee a Deere 13

Pt. 399, Section 399.110..................... Pacsesgatudiniada 12

I ee i I FD oockcccecccacncncgecaseshscnchcncsascatecuen 12, 20

50 Fe, TI SI WIE sonnets sss senssessesencceeninceessancen pes 8

vi

TABLE OF AUTHORITIES—Continued

Page

i tiie ates Oar oI CUD nsincsciccnscctndshanecmeinrhesstbcnntncouniniins 2,17

N.Y. Gen. Mun. Law §§ 350-357 (McKinney 1974

SRE IIIT sisctsicu.cucdsconsespbelpeindeiabecammendaedveioortel passim

MISCELLANEOUS:

H.R. Rep. No. 95-1779, 95th Cong., 2d Sess.

ae a I caeaienbnenonas 12

BIR Cs TR TP COO ceccrcccreccccscctcinceccccvnsesincne 14

Airline Deregulation and Airport Regulation, 93

Fe I III sissitiieisnhcscindsecnccctnectmndadadeicesos 3,7,8

Airport Access Task Force, Report and Recom-

mendations of the Airport Access Task Force

(presented to Congress on March 10, 1982)... 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-2102

MONTAUK-CARIBBEAN AIRWAYS, INC.,

d/b/a LONG ISLAND AIRLINES,

" Petitioner,

JUDITH HOPE, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

REGIONAL AIRLINE ASSOCIATION

The Regional Airline Association (“the RAA”)

respectfully submits this brief amicus curiae in support

of petitioner’s request that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Second Circuit, entered in the

above-titled proceeding on February 14, 1986.

INTEREST OF THE AMICUS CURIAE

As discussed in the foregoing motion for leave to file

this brief, the RAA is the trade association of the re-

gional/commuter air carrier industry. That the RAA’s

members could be adversely affected by the Court of Ap-

peals decision is apparent. That decision holds, in part,

that a municipally-owned airport may, pursuant to state

statute, refuse to terminate exclusive lease arrangements

that discriminate against an airline and deny that airline

access to support necessary for its air carrier operations,

notwithstanding Federal law directly to the contrary.

Second, the decision holds that such conduct is not pre-

empted by Federal law even though it may directly relate

to the rates, routes or services of air carriers, an area

2

specifically preempted by Federal aviation law. Third,

the decision precludes private actions by air carriers seek-

ing relief from such conduct under the Federal aviation

and civil rights laws. Such holdings impact upon the

vital interests of all air carriers.

The effects of the decision will be felt immediately in

the Second Circuit, which includes major municipally-

owned airports, as those airports use their vastly ex-

panded proprietor rights to control the rates, routes or

services of carriers and to grant preferred carriers exclu-

sive use rights to airports and airport facilities. Un-

doubtedly, the decision will soon be relied upon by munic-

ipally-owned airports throughout the Nation as authority

for a radical expansion of their proprietary powers and

rights, crippling the free market basis of airline deregu-

lation and the ability of the Federal Government to main-

tain access to the airways. At the same time, the decision

precludes private actions, so that Federal court relief

from improper airport conduct would be unavailable to

carriers at the time of greatest need. Accordingly, the

Second Circuit’s decision is directly inimical to the inter-

ests of the RAA’s air carrier members and the traveling

public.’

STATEMENT OF THE CASE

Petitioner Montauk-Caribbean Airways, Ine., d/b/a

Long Island Airlines (“MCA”), seeks a writ of certiorari

with respect to a decision of the United States Court of

Appeals for the Second Circuit. That decision affirmed

a dismissal by the United States District Court for the

Eastern District of New York, pursuant to Fed. R. Civ.

P. 12(b) (6), of petitioner’s Complaint which alleged that

it had been denied access to East Hampton Airport, New

York (“the Airport’), in violation of the Federal avia-

1The RAA’s interest is limited to the Federal aviation issues

discussed above. It does not present any view with respect to the

merits of the contract dispute between the parties, and does not

address the antitrust issues except as they relate to the Federal

aviation issues.

3

tion, antitrust and civil rights laws.* The Court of Ap-

peals decision is reported at 784 F.2d 91 (2nd Cir. 1986),

and is provided at Appendix D of petitioner’s brief.

MCA is an air carrier that has served the Airport since

the 1960s. The Airport is owned and operated by the

Town of East Hampton, New York (“the Town’). East

Hampton Aire, Inc. (“EEHA”) is the only other air carrier

serving the Airport.

In addition to its air carrier services, MCA is also a

fixed base operator (“FBC”) at the Airport. An FBO,

analagous to an automobile service station, provides fuel,

oil, maintenance, aircraft parking and tiedowns and simi-

lar aircraft-related services to the aircraft operating

public.* An air carrier can, of course, fuel and service its

own aircraft at an airport, or purchase fuel and aircraft-

related services from an FBO.*

It should also be appreciated that an air carrier’s serv-

ices include not only flight operations (i.e., landings and

take-offs), but also passenger-related services at the ter-

minal, such as ticketing, pessenger and baggage handling,

and providing counter space.° At most airports, the

passenger-related services are operated completely sepa-

rate from the FBO operations. For obvious competitive

reasons, most air carriers insist on the right to provide

their own passenger-related services at the terminal.°

2 Because the trial court graated respondents’ motion to dismiss,

the record concerning petitioner’s allegations was not developed.

Accordingly, the RAA’s statements concerning the facts of this case

are necessarily based on the Complaint, and any reasonable infer-

ences therefrom, or fae sal statements by petitioner in its brief

that are supported by the lower courts’ opinions.

% Pinehurst Airlines, Inc. v. Resort Air Services, Inc., 476 F.

Supp. 543, 548 n.1 (M.D.N.C. 1979).

4 Section 511(a)(1)(C) of the Airport and Airway Improvement

Act of 1982, Pub. L. No. 97-248, 96 Stat. 671 (“the AAIA”), 49

U.S.C. App. § 2210(a) (1)(C) (1982 and Supp. 1984).

5 Airline Deregulation and Airport Regulation, 93 Yale L.J. 319,

825 n.44 (1983) (“Airline Desegulation’”).

* See id. at 332-34.

4

Those services are usually provided in terminal space

leased from the airport or subleased from other carriers.’

MCA operated a year-round FBO at the airport until

1979, when it reached a new FBO agreement with the

Town, for a 10-year term that ends in 1989. That

agreement required MCA to provide FBO services at the

Airport only during the period May through September

of each year, which represents the five summer months

that constitute the high summer season at the Town.

From 1980 through 1982, MCA, apparently of its own

volition, limited its regular air carrier services to the

Airport to the five summer months.

In 1983, MCA sought to continue its air carrier serv-

ices (including its passenger-related services and servic-

ing its own aircraft) and FBO operations after the end

of the five-month summer season. The Town refused and

even prohibited MCA from conducting passenger flight op-

erations (i.e., landings and take-offs) at the Airport dur-

iug the seven-month off-season.’ In short, the Town re-

fused to acknowledge MCA’s claimed right to conduct

year-round air carrier and FBO operations, and refused

to extend or amend MCA’s five-month lease, despite the

fact that EHA, the other air carrier serving the Airport,

had a year-round lease permitting it to provide such

services. Essentially the same developments occurred at

the end of the 1984 summer season.

In February 1985, MCA brought suit in the Eastern

District against respondents because MCA had not been

permitted to serve the airport during the 1984-85 off-

season. Because of the ongoing litigation, at the end of

the 1985 summer reason the parties stipulated that MCA

7 See Airport Access Task Force, Report and Recommendations

of the Airport Access Task Force 50 (presented to Congress on

March 10, 1982) (study conducted pursuant to Section 527 of the

AAIA, 49 U.S.C. App. § 2226).

* Petitioner’s brief at 3a-4a (Appendix A, para. 14).

® Petitioner’s brief at 4a-5a (Appendix A, paras. 16, 20 and 23);

see petitioner’s brief at 4.

5

could continue its air carrier operations and service its

own aircraft until mid-November, although MCA’s FBO

operations for other carriers was not permitted. In No-

vember 1985, the Town refused to renew the stipulation,

and MCA obtained an injunction from the Second Circuit

barring the Town from terminating MCA’s activities at

the Airport. That injunction was lifted by the Second

Circuit, however, on February 14, 1986, thus permitting

the Town to terminate MCA’s off-season services at the

Airport.”

Armed with the Second Circuit’s decision, the Town in-

tends to return to its prior practice and prohibit MCA

from handling its own ticketing, passenger and baggage

handling, counter space and similar passenger-related

services at the Airport at the conclusion of the summer

season." By contrast, EHA is permitted to handle such

services for itself and other air carriers, and MCA would

be required to rely upon EHA, its sole air carrier

competitor at the Airport, for those passenger services.”

Furthermore, the Town intends to prohibit MCA from

providing its own fuel, maintenance and similar aircraft-

related services for its aircraft during the off-season;

similarly, MCA would not be permitted to provide FBO

services to others during the off-season.** Again, by con-

trast, EHA is permitted to operate its FBO year-round

and MCA would be required to rely upon EHA’s FBO

10In November 1385, the Town conceded that MCA could conduct

air carrier flight landings and take-offs at the Airport during the

off-season, but has not conceded that it may do any more than that

during the off-season.

11 Petitioner’s brief at 4-5. During the current summer season,

MCA may operate pursuant to its 10-year lease. At the end of

the summer season, however, the Town has indicated that it will

again prohibit MCA’s activity at the airport (except landings and

take-offs).

12 Td.

13 Id.

6

for fuel and aircraft-related services during the off-

season.**

The core of the instant dispute, then, is the Town’s

refusal to acknowledge or extend MCA’s lease so that

it can provide its own passenger and aircraft-related

services at the Airport year-round. Because the Town

permits EHA to operate similar passenger and aircraft-

related services year-round for itself and other air car-

riers, MCA alleges that the Town has granted EHA ex-

clusive lease or use arrangements during the off-season,

has discriminated and will again discriminate against

MCA, and has regulated and will regulate MCA’s rates,

routes or services by preventing it from handling its

own passenger services, by preventing it from servicing

its own aircraft and by competitively disadvantaging

MCA’s operations with the requirement to use a com-

petitor’s FBO services. Significantly, the Federal Avia-

tion Administration (“the FAA”) has issued a prelimi-

nary order finding the Town’s conduct to be in violation

of Federal law.”

REASONS FOR GRANTING THE WRIT

I. The Second Circuit’s Decision Raises Important Fed-

eral Matters, Conflicts In Principle With Other Cir-

cuits and Will Have a Major Adverse Impact on the

National Air Transportation System.

This case presents important and recurring Federal

questions of the extent to which the proprietary powers

and rights of municipally-owned airports are preempted

by the Federal aviation laws.’* Presented also is the im-

14 Jd.

15 Petitioner’s brief at 53a (Appendix H).

16 For example, the issue of Federal preemption of state law in

the context of Federal aviation law and international air transporta-

tion was recently addressed by the Court in Wardair Canada, Inc.

v. Florida Dep’t of Revenue, 54 U.S.L.W. 4687 (U.S. decided June

18, 1986), in which this Court held that a Florida tax on aviation

fuel sold to foreign air carriers is not preempted by the Federal

7

portant Federal matter of whether an air carrier may

bring an action under 42 U.S.C. § 1983, or under the

Federal aviation laws, for violations of the Federal avia-

tion laws by municipally-owned airports.

The holdings of the Second Circuit in this case that

municipally-owned airports, in the exercise of their prop-

rietary powers and rights pursuant to state statute, may

(1) enter exclusive lease arrangements for the use of

federally-funded airports, (2) discriminate against cer-

tain air carriers in the providing of facilities and serv-

ices, and (3) prevent carriers from providing passenger

services and from servicing their own aircraft, thereby

regulating rates, routes or services of air carriers, are

contrary to the Federal aviation statutes and conflict in

principle with the position of three courts of appeais

and well-established principles of Federal aviation law.

Additionally, the Court of Appeals holdings that viola-

tions of the Federal aviation laws by a municipality are

not cognizable under 42 U.S.C. § 1983, and that the Air-

port and Airway Improvement Act of 1982 does not per-

mit a private action, are in error.

If permitted to stand, the decision will have a serious

deleterious effect on the national air transportation sys-

tem, conflict with the ability of the FAA to administer

the Federal aviation laws and detract from its ability to

fulfill its role in air safety, and deny air carriers a

vital opportunity to redress violations of the Federal

aviation laws.*’ The issues in this case are clearly of

national scope and importance. Moreover, because of the

interstate nature of air carrier service, there is a press-

ing need for a uniform Federal judicial position on these

issues. Resolution of these matters assumes increasing

importance in light of the virtual explosion of attempts

Aviation Act and does not violate the Commerce Clause, U.S. Const.,

art. I, § 8, cl. 3. See also infra nn.35, 36.

17 Infra 19-20; see City of Dallas v. Southwest Airlines Co., infra,

15, 371 F. Supp. at 1033 n.12; Airline Deregulation, supra n.5, at

322, 332-33.

8

by airports to use their proprietary powers to restrict

access as demonstrated by the FAA’s current proceeding

to develop a national policy on airport access restrictions.”

II. The Town’s Conduct, and the New York Statute Upon

Which It Relies, Are Preempted by Federal Law.

A. Introduction.

The Second Circuit sustained the Eastern District’s dis-

missal of MCA’s antitrust claims on the grounds that the

Town’s conduct was immunized from antitrust liability

by the state action doctrine, most recently articulated

in Town of Hallie v. City of Eau Claire, US. —,

105 S. Ct. 1713 (1985). An essential requirement of that

doctrine is that the municipality establish that its anti-

competitive conduct is authorized by state policy, and

that the state legislature intended the anticompetitive

consequences of that policy. Hallie, 105 S. Ct. at 1716,

1719.

In that regard, the Second Circuit examined N.Y. Gen.

Mun. Law §§ 350-357 (McKinney 1974 and Supp. 1984-

85), which authorize a local government to own and op-

erate an airport. Section 352 of that law provides in

pertinent part that the local government operating the

airport may:

5. Lease, or sublease the real property or lease, con-

tract or otherwise agree, on an exclusive or non-

exclusive basis, for the entire operation of such air-

port or landing field, or a part thereof, or for the

rendering of various services or conduct of business

activities, on or at said airport or landing field.

(Emphasis added).

The Second Circuit found that Section 352:

[Declares a state policy that municipal airport

Operators may enter into exclusive lease arrange-

ments. This effectively replaces competition with

regulation. We therefcre must assume that the New

1851 Fed. Reg. 2985 (January 22, 1986); see Airline Deregula-

tion, supra n.5, at 326-34, 338 n.113.

9

York legislature contemplated the kind of anticom-

petitive activity in which the Town of East Hampton

has engaged.’®

Based on that finding the Court of Appeals held that

the state action test of Hallie had been met and affirmed

the dismissal of the antitrust claims.”

Irrespective of whether MCA stated an antitrust claim,

the Second Circuit’s holding that Federal law does not

preempt the Town’s conduct, or the New York statute,

seriously errs. The New York law, and the Town’s use

of it, directly conflict with Section 105(a)(1) of the

Federal Aviation Act of 1958, as amended (“the Fed-

eral Aviation Act’), 49 U.S.C. § 1305(a) (1). Moreover,

Section 308(a) of the Act, 49 U.S.C. § 1349(a), and

Section 511(a) of the AAIA, 49 U.S.C. App. § 2210(a),

expressly bar certain aspects of the Town’s conduct and

preempt the New York law.

B. Preemption Under Section 105(a)(1) of the Federal

Aviation Act.

MCA raised the preemption issue by arguing that Sec-

tion 352 of the New York law had been preempted by

Section 105(a)}(1) of the Federal Aviation Act, 49

U.S.C. § 1805(a) (1); however, the Second Circuit re-

jected that position, concluding that the Town’s exclusive

lease arrangements with EHA were a valid exercise of

the Town’s proprietary rights that are excepted from

preemption by Section 105(b)(1) of the Federal Avia-

tion Act, 49 U.S.C. § 1805 (b) (1).

19 Petitioner’s brief at 39a-40a (Appendix D); 784 F.2d at 96.

Significantly, Section 352 was enacted in 1948, well before enact-

ment of the Federal Aviation Act in 1958, or the AAIA in 1982.

Thus, in enacting Section 352 the New York legislature could not

have contemplated the limitations imposed by the subsequent Fed-

eral aviation laws.

20 Jd. at 41a; 784 F.2d at 96.

21 Petitioner’s brief at 40a-4la (Appendix D); 784 F.2d at 97.

10

The Second Circuit’s holding clearly errs as it fails to

recognize that Section 105(a)(1) precludes a state or

local government from enacting or enforcing:

any law, rule, regulation, standard, or other provi-

sion having the force and effect of law relating to

rates, routes, or services of any air carrier having

authority under title IV of this Act to provide air

transportation.

MCA’s allegations fall within the ambit of Section 105

(a) (1) as the Town previously precluded MCA’s services

during the off-season and will do so again at the end

of this summer season (with the apparent exception of

landings and take-offs). Thus, the Town’s conduct vio-

lates Section 105(a)(1) because its refusal to end its

off-season exclusive lease arrangements with EHA, and

its refusal to permit MCA to service its own passengers

and aircraft year-round, have the direct effect of relating

to or regulating MCA’s rates, routes or services as those

actions (1) are designed to place MCA’s services at a

competitive disadvantage during th seven-month off-season

thereby favoring the rates, routes and services of other

carriers, (2) deny it access to airport facilities and pre-

vent it from providing passenger services that are nec-

essary for it to serve the Airport, and (3) implicitly,

raise MCA’s rates through discrimination against it.*°

MCA states that the Town has never advanced any basis

for its efforts to exclude MCA, and it cites the preferential

airport arrangements that EHA has enjoyed as evidence

that the Town’s actions against MCA are designed to

benefit EHA.~

Assuming MCA’s allegations to be true, the use of

proprietary powers to achieve such goals is precluded by

the express terms of Section 105(a)(1). Yet, it is ap-

parently the view of the Second Circuit that a proprie-

tary power or right recognized under Section 105(b) (1)

22 Petitioner’s brief at 5, 19-20.

23 Petitioner’s brief at 19-20.

11

of the Federal Aviation Act, 49 U.S.C. § 13805(b) (1), is

not preempted by Section 105(a) (1), even though the

proprietary power or right is exercised for the purposes

of directly and materially affecting an air carrier’s rates,

routes or services.** The result of that reasoning is that

Section 105(b) (1) overrides Section 105(a) (1), thereby

permitting airports throughout the Second Circuit to

influence, if not regulate, air carrier rates, routes or

services under the rationale that the airport is only ex-

ercising its proprietary right to lease or contract. For

example, under the authority of the Second Circuit’s de-

cision, airports could condition leases on a carrier’s

agreement to serve, or not serve, certain routes, or to

limit the number of flights or the services provided to

passengers.

The Second Circuit’s position is erroneous. Nothing

in the legislative history of the Airline Deregulation Act

of 1978, Pub. L. No. 95-504, 92 Stat. 1705, 1708 (1978),

of which Section 105 was part, suggests that Section 105

(b) (1) should prevail over Section 105(a) (1). Such a

reading violates basic principles of statutory construc-

tion, as it results in Congress taking away by Section

105(b) (1), preemption that it expressly provided for in

Section 105(a) (1), thus impliedly repealing Section 105

(a) (1). Indeed, such an outcome would be contrary to

the entire purpose of. the Airline Deregulation Act of

1978, which was intended to permit the market place,

24 The Town’s direct attempt to affect MCA’s rates, routes or

services is one of several factors distinguishing this case from

Wardair Canada, Inc. v. Florida Dep’t of Revenue, supra n.16.

The aviation fuel tax in Wardair, permissible under Section 1113(b)

of the Federal Aviation Act, 49 U.S.C. § 1513(b), was clearly not

a tax on the items. enumerated in Section 1113(a), 49 U.S.C.

§ 1513(a), that are preempted from state taxation. By contrast,

in this case the Town is alleged to have used its proprietary powers

recognized under Section 105(b)(1) of the Federal Aviation

Act, 49 U.S.C. § 1305(b) (1), to accomplish a goal that is spe-

cifically preempted in Section 105(a)(1) of that Act, 49 U.S.C.

§ 1305(a) (1).

12

not the Federal or local governments, to determine which

and how many air carriers should serve a given airport,

over what routes and at what fares.”

In short, whatever ‘proprietary powers and rights”

may mean, they clearly do not include any power relating

to the rates, routes or services of air carriers.?® Such

local regulation is no less onerous or unlawful because

it comes in the subtle form of proprietary rights, rather

than in the form of direct regulation.*’ Accordingly, as

the Town’s proprietary powers and rights are limited

by Section 105(a) (1), to the extent their exercise con-

flicts directly with Federal law, they are unlawful under

the Supremacy Clause, U.S. Const., art. VI, cl. 2. Gibbons

v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); Jones v. Rath

Packing Co., 430 U.S. 519, 525, reh’g denied, 431 U.S.

925 (1977).

If the Second Circuit’s broad interpretation of proprie-

tary rights under Section 105(b)(1) is permitted to

stand, there can be little doubt that it will be readily

seized upon as authority for a radical expansion of air-

port proprietary powers and rights. Local airports,

many already under pressure by surrounding communi-

25 H.R. Rep. No. 95-1779, 95th Cong., 2d Sess. 56 (1978).

2614 C.F.R. § 399.110(d) (1986) (Civil Aeronautics Board (“the

CAB”) (now Department of Transportation) general policy state-

ment providing that state actions governing flight frequency and

mode of operations are preempted); § 399.110(e) (proprietary

powers must be exercised as to be nondiscriminatory, nonburden-

some to interstate commerce, and designed to further legitimate

state goals that do not conflict with federal law). In PS-83, 44

Fed. Reg. 9948 (February 15, 1979), prom -sating 14 C.F .R.

§ 399.110, the CAB noted that states may not interfere with carrier

decisions concerning prices and markets, and that Section 105 of

the Federal Aviation Act is designed to prevent states from frus-

trating the benefits of federal deregulation. Jd. at pp. 9949, 9951.

27 See Hingson v. Pacific Southwest Airlines, Inc., 743 F.2d

1408 (9th Cir. 1984) (Section 105(a)(1) preempts local laws

relating to air carrier rates, routes or services, not just local

laws conflicting with Federal law; therefore, California handi-

capped access rules are not applicable to interstate air carrier).

13

ties to reduce air carrier operations, could hardly resist

such an expansion. Moreover, as the Court of Appeals

decision substantially increases an airport’s bargaining

power in lease negotiations, airport operators will have

a financial interest in expanding their proprietary

powers. The national air transportation system will ul-

timately be severely affected. Economic air carrier sched-

uling would become virtually impossible as local concerns,

not the market, would dictate service. Moreover, the

FAA’s very ability to manage the airways would be

threatened by the innumerable local regulations and op-

erating conditions with which it would have to deal.

C. Preemption Under Section 308(a) of the Federal

Aviation Act and Section 511(a) of the AAIA.

The Town’s conduct at issue here, and the New York

statute, are further preempted and invalidated by Sec-

tion 308(a) of the Federal Aviation Act, 49 U.S.C.

§ 1849(a), which expressly prohibits exclusive use rights

at any federally-funded airport:

There shall be no exclusive right for the use of any

landing area or air navigation facility upon which

federal funds have been expended.*®

Additionally, Section 511(a) (2) of the AATA, 49 U.S.C.

App. § 2210(a) (2), provides that all Federal grants to

airports shall include a requirement that:

[T] here shall be no exclusive right for the use of the

airport by any person providing, or intending to pro-

vide, aeronautical services to the public.*®

That proprietary powers and rights recognized under

Section 105(b) (1) of the Federal Aviation Act, 49 U.S.C.

§ 1305 (b) (1), are subject to these provisions is apparent

*8The Airport receives Federal funds. Petitioner’s brief at-

3a (Exhibit A, para. 10).

2° The Airport is specifically bound to meet the requirements of

Section 511(a) by Assurance 20 of its Grant Agreement, dated

September 29, 1983. Id.; petitioner’s brief at 50a (Appendix G);

see 14 C.F.R. Pt. 152, Appendix D, paras. II.A.19 and 20 (with

reference to predecessor of AATA).

14

from Section 105(b)(1)’s legislative history. Senator

Cannon, the Senate floor manager of the Airline Deregu-

lation Act of 1978, of which Section 105 was a part,

stated concerning Section 105:

It was not the intent of the Senate conferees to limit

in anyway the normal exercise of the existing pro-

prietors’ powers to place nondiscriminatory restric-

tions on the operations of an airport, subject to con-

stitutional and statutory limitations. (Emphasis

added) .*

Accordingly, Section 352, and the conduct it authorizes,

are facially preempted by federal law and are invalid.

Gibbons v. Ogden; Jones v. Rath Packing Co.™

Even if Section 352 of the New York law and the

Town’s conduct were not facially preempted, it is clear

that the Town is required to comply with Section 511(a)

of the AAIA, 49 U.S.C. App. § 2210(a), by virtue of its

acceptance of Federal funds for its airport.” It has

therefore waived any claim to proprietary powers or

rights that would violate Section 511(a).”

MCA’s allegations against the Town, if proven, repre-

sent significant violations of the Federal statute and cor-

responding grant assurances. For example, prohibiting

MCA from providing its own passenger-related services

and from servicing its own aircraft during the seven-

month off-season, while permitting EHA to perform those

services for itself and other air carriers, patently violates

% 124 Cong. Rec. 37419 (1978).

*1 The issue of preemption under Sections 308(a) and 511(a)

was implicitly addressed by the Second Circuit as it concluded

that no authority bars the Town’s conduct here at issue, and

that conclusion was necessary to its finding that Section 105(a) (1)

did not preempt the Town’s conduct and the New York statute.

Petitioner’s brief at 41a (Appendix D); 784 F.2d at 97.

32 United States v. Westchester County, infra n.35, 571 F. Supp.

at 798.

33 United States v. State of New York, infra n.35, 552 F. Supp.

at 265.

15

the equal access and non-discrimination requirements of

Section 511(a) (1) (A).

More important, the Town’s previous and impending

refusals to permit MCA to service its own aircraft directly

contravenes Section 511(a)(1)(C) of the AAIA, 49

U.S.C. App. §511(a)(1)(C), which states that “each

air carrier using such airport shall have the right to

service itself... .” Significantly, the Section 511(a) (1)

(C) right of an air carrier to service its own air-

craft is guaranteed irrespective of whether MCA is being

subjected to discrimination by the Airport; that right

exists even if there were no other air carriers serving the

Airport. Accordingly, MCA’s rights under Section 511

(a)(1)(C) have been violated in this case even without

consideration of the preferences granted to EHA.™

D. The Decision Conflicts In Principle With Other

Circuits and Well-Established Legal Principles.

The Second Circuit’s decision, to the extent that it holds

that the Town’s conduct does not violate Section 308 (a)

of the Federal Aviation Act, 49 U.S.C. § 1849(a), con-

flicts in principle with the decision of the Eleventh Cir-

cuit in City of Pompano Beach v. FAA, 774 F.2d 1529

(11th Cir. 1985) (affirming FAA order that exclusive

FBO leases violate Section 308(a)), and a decision af-

firmed by the Sixth Circuit, Niswonger v. American Avi-

ation, Inc., 411 F. Supp. 769 (E.D. Tenn.), aff'd without

op., 529 F.2d 526 (6th Cir. 1975) (exclusive FBO lease

violates Section 308(a)). The decision in this case also

conflicts, with respect to Section 511(a) of the AAIA,

49 U.S.C. App. § 2210(a), with a derision affirmed by

the Fifth Circuit, City of Dallas v. Southwest Airlines

Co., 371 F. Supp. 1015 (N.D. Tex. 1973), aff'd, 494 F.2d

773 (5th Cir. 1974), cert. denied, 419 U.S. 1079 (1974),

reh’g denied, 420 U.S. 913 (1975) (city’s requirement

* Prohibiting MCA from operating an FBO during the seven-

month off-season also violates Section 511(a)(2) of the AAIA,

which prohibits exclusive FBOs, absent special circumstances that

have not been demonstrated so far in this case.

16

that intrastate airline move to new terminal, while per-

mitting air taxis to remain at old terminal, constitutes

unjust discrimination in violation of 49 U.S.C. App.

€1718(a) (repealed by the AAIA), the predecessor

of Section 511(a)). See also New York Airlines, Inc. v.

Dukes County, 623 F. Supp. 1435 (D. Mass, 1985).

The Second Circuit’s expansive view that an airport

operator’s proprietor powers and rights may be exercised

unfettered by the requirements of the Federal aviation

laws further conflicts with well-established legal prin-

ciples, often recognized by the Second Circuit in the con-

text of airport noise regulation, that airport proprietor

rights must be exercised reasonably, in a nondiscrimina-

tory manner, and with due regard for Federal adminis-

tration of the airways.” Indeed, even those decisions that

have sustained a proprietor imposed noise restriction, re-

lying on the possibility of a “proprietor exception” to

Federal preemption alluded to in City of Burbank v. Lock-

heed Air Terminal, Inc., 411 U.S. 624, 635 n.14 (1973),

have done so only after the airport demonstrated that the

local regulation was reasonable, nondiscriminatory and

%5 British Airways Board v. Port Authority of New York, 558

F.2d 75 (2d Cir. 1977) (noise regulation must be reasonable, non-

arbitrary and nondiscriminatory and limited to establishing noise

levels for the airport and immediate environs, relying on Supremacy

and Commerce Clauses and predecessor of Section 511, AAIA);

British Airways Board v. Port Authority of New York, 564 F.2d

1002 (2d Cir. 1977) (proprietor’s regulation of airport noise

held invalid because not “reasonable, non-arbitrary and non-

discriminatory”); United States v. Westchester County, 571 F.

Supp. 786 (S.D.N.Y. 1983) (curfew imposed by proprietor violates

Commerce Clause, is preempted and is unreasonable and arbitrary) ;

United States v. State of New York, 552 F. Supp. 255 (N.D.N_Y.

1982), aff'd, 708 F.2d 92 (2d Cir. 1983), cert. denied, 466 U.S. 936

(1984) (curfew imposed by proprietor violates Supremacy Clause

because it is (1) preempted by Federal law, and (2) directly con-

flicts with provisions of predecessor of AAIA); San Diego Unified

Port District v. Superior Court, 136 Cal. Rptr. 551 (Cal. Ct. App.

4th Dist. 1977), cert. denied sub nom. Britt v. San Diego Unified

Port District, 424 U.S. 859 (1977) (curfew imposed by proprietor

held preempted by Federal law).

17

did not conflict with Federal law.** Because the trial

court’s dismissal of this case on a Fed. R. Civ. P.

12(b) (6) motion was affirmed, the Town was improperly

spared from making such a showing.

E. Review is Warranted; However, Remand May Be

Appropriate.

Although review of this case is warranted so that these

important Federal issues may be settled, the RAA recog-

nizes that the Second Circuit may simply have not ap-

preciated the significance of Section 308(a) of the Fed-

eral Aviation Act, 49 U.S.C. § 1349(a), and Section 511

(a) of the AAIA, 49 U.S.C. App. § 2210(a), or of its

holding that proprietary powers and rights recognized

under Section 105(b) (1) of the Federal Aviation Act are

not limited by Section 105(a)(1) of that Act, 49 U.S.C.

§§ 1805(a)(1) and (b)(1). The RAA submits that it

may be more appropriate for this Court to vacate the

Second Circuit’s decision and remand the case with in-

structions to reconsider in light of the above. Upon re-

consideration, the Second Circuit may well obviate the

need for review by this Court.

% Arrow Air, Inc. v. Port Authority of New York, 602 F. Supp.

314 (S.D.N.Y. 1985) (Arrow obtained a waiver from FAA noise

regulations, but not from similar local regulations, held, local

regulations not preempted, discriminatory, unreasonable or an un-

due burden on commerce); Global International Airways Corp. v.

Port Authority of New York, 727 F.2d 246 (2d Cir.), reh'g denied,

731 F.2d 127 (2d Cir. 1984) (proprietor imposed requirement of

accelerated compliance with 14 C.F.R. Pt. 36 not facially preempted,

case remanded for factual determination of whether, on airline-

by-airline basis, local regulation, in itself or in combination with

other regulations, actually caused each airline to accelerate compli-

ance with Part 36 or caused undue hardship; if so, injunction to be

granted against enforcement of the regulation) ; Santa Monica Air-

port Ass'n v. City of Santa Monica, 659 F.2d 100 (9th Cir. 1981)

(proprietor imposed noise regulation held reasonable and not pre-

empted) ; National Aviation v. City of Hayward, 418 F. Supp. 417

(N.D. Cal. 1976) (curfew imposed by proprietor on aircraft in

excess of 75 dBA not preempted nor undue burden on interstate

commerce, nor in violation of Federal grants).

18

Ill. The Provisions of Section 511(a) of the AAIA Are

Enforceable Under 42 U.S.C. § 1983 or in a Private

Action by an Air Carrier.

The RAA concurs with the analysis provided in peti-

tioner’s brief demonstrating that MCA may sustain a

claim under 42 U.S.C. § 1983 for the Town’s violations

of Section 511(a) of the AAIA, 49 U.S.C. App. § 2210

(a), and that a private action may be brought under

Section 511(a) itself. Additionally, the RAA would in-

vite the Court’s particular attention to New York Air-

lines, Inc. v. Dukes County, 623 F. Supp. at 1443-48, in

which Judge Wolf presents a particularly cogent discus-

sion establishing that violations of Section 511(a) are

cognizable under 42 U.S.C. § 1983.*7 The RAA would also

add several points to petitioner’s discussion of these

matters.

First, additional evidence that air carriers are in-

tended and primary beneficiaries of Section 511(a)’s non-

discrimination provisions is seen in Section 511 (a) (1)

(A), 49 U.S.C. App. § 2210(a) (1) (A), which provides

that tenant status will not be unreasonably withheld by

an airport from an air carrier, and in Section 511(a) (1)

(C), id. at § 2210(a)(1)(C), which provides that each

air carrier shall have the right to service itself or use

an FBO at the airport. Air carriers are the only possible

direct and primary beneficiaries of those protections.”

Second, the crux of the Second Circuit’s decision that

42 U.S.C. § 1983 may not be used with respect to Section

511(a) of the AAIA is that the “comprehensive enforce-

ment” scheme of the Federal Aviation Act manifests a

congressional intent to foreclose an action under Section

1983.%° The Second Circuit evidently misunderstood the

Federal aviation laws because precisely the opposite is

57 But see The Interface Group, Inc. v. Massachusetts Port

Authority, 631 F. Supp. 483 (D. Mass. 1986).

* MCA alleged violations of Section 511(a) in its Complaint, but

sought no relief thereunder. Nonetheless, the Eastern District

entered findings dismissing that claim, thereby preserving the issue

for review by this Court. Petitioner’s brief at 29a (Appendix C).

*9 Petitioner’s brief at 48a (Appendix D); 784 F.2d at 96-97.

19

the case. Section 511(a) is part of the AAIA, not the

Federal Aviation Act; thus, the criminal and civil penal-

ties of the Federal Aviation Act are not available to

enforce violations of Section 511(a) of the AAIA.

By contrast, Congress expressly provided that the ex-

tensive investigation powers available under the Federal

Aviation Act would be available under the AAIA. Section

313(c) of the Federal Aviation Act, 49 U.S.C. § 1354(c);

see 14 C.F.R. §§$ 13.1 and 13.3 (with reference to the

predecessor of the AAIA). The fact that Congress linked

the two statutes for purposes of investigation, but not for

purposes of enforcement, evinces that Congress consciously

chose not to make the Federal Aviation Act’s enforce-

ment provisions available under the AAIA. Accordingly,

as the Second Circuit’s decision that relief is not avail-

able under 42 U.S.C. § 1983 is predicated upon the avail-

ability of the enforcement scheme of the Federal Aviation

Act for AAIA violations, it errs.”

The RAA submits that violations of Section 511(a)

should be cognizable under 42 U.S.C. § 1983, or in a

private action. Absent such procedural avenues, air car-

riers will be unable to enforce the protections under Sec-

tion 511(a) of which they are the direct and primary

beneficiaries. See United States v. Westchester County,

571 F. Supp. at 798 (explaining irreparable injury flow-

ing from airport curfew). As discussed supra n.40, the

FAA’s enforcement powers under the AAIA are limited

and largely proscriptive. Moreover, the FAA cannot po-

lice the administration of these laws alone. It is un-

able to dedicate significant resources to these problems

and consequently only takes an interest in the most sig-

nificant cases, usually involving major airports or large

carriers. This particularly affects the regional/commuter

Federal enforcement of the AAIA is limited to funding termi-

nation, breach of grant assurance action, or orders issued pur-

suant to Section 519 of the AAIA, 49 U.S.C. App. § 2218. See City

of Pompano Beach, 774 F.2d at 1536, 1537-38; United States v.

Westchester County, 571 F. Supp. at 798; see also 14 C.F.R. Pt. 152,

Subpt. F (with reference to the predecessor of the AAIA).

20

carriers, which generally serve smaller airports in which

the FAA has comparatively little interest in access mat-

ters.“ Additionally, the FAA’s expertise is not required

to remedy violations of Section 511(a).

Should the FAA become the only forum for Section

511(a) violations, because judicial relief is unavailable

to air carriers, the Agency will be overwhelmed by these

matters, which can only detract from its primary mis-

sion of air safety. Moreover, administrative relief often

takes years to obtain, as illustrated by City of Pompano

Beach (complaint filed with FAA July 1981, FAA pre-

liminary order issued March 1983, FAA final order issued

February 1985, affirmed by Eleventh Circuit November

1985) ; thus, relief will come too late to prevent carriers

from sustaining major losses while awaiting relief. In

fact, significant monetary losses can and have occurred

in such cases, and cannot be recouped. See United States

v. Westchester County, 571 F. Supp. at 798. Without the

availability of an action under 42 U.S.C. § 1983 or a pri-

vate action under Section 511(a) itself, interim relief is

virtually unobtainable, and whether the airport’s violation

is successfully challenged will largely depend on whether

the air carrier can survive financially the burdens of the

airport’s unlawful conduct during the FAA’s investiga-

tion and subsequent litigation. Congress certainly did

not intend such an outcome in the enactment of the

AAIA, and the case for finding a private action is com-

pelling when, as here, the practical limitations on agency

enforcement and the inadequacy of remedies will result

in a frustration of Congressional purpose.**

CONCLUSION

For the reasons stated above, the petition for certiorari

should be granted and the case reviewed by this Court.

Alternatively, the case should be vacated and remanded

to the Second Circuit for reconsideration.

41 See PS-83, supra n.26, at 9949 (noting particular adverse

effects of state regulation on commuter carriers and their com-

parative inability to challenge unlawful state conduct).

42 See JI. Case Co. v. Borak, 377 U.S. 426, 433 (1964).

21

Respectfully submitted,

CALVIN DAVISON *

DAVID T. RALSTON, JR.

CROWELL & MORING

1100 Connecticut Avenue, N.W.

Washington, D.C. 2003

(202) 452-5800

Counsel for Amicus Curiae

Regional Airline Association

August 8, 1986 * Counsel of Record