On Petition for Review of an Order of the Federal Aviation Administration
Before: Rogers, Tatel, and Garland, Circuit Judges.
The opinion of the court was delivered by: Garland, Circuit Judge
The question in this case is whether the Federal Aviation Administration (FAA) has unlawfully failed to enforce rights that the petitioner contends arise from the 19th Amendment -- not the 19th Amendment to the Constitution of the United States, but the nineteenth amendment to a contract between the petitioner and the Boca Raton Airport Authority. Because that contractual amendment guarantees no federal rights to the petitioner, we deny the petition for review.
Petitioner Boca Airport, Inc., which does business under the name Boca Aviation, is a "fixed-base operator," or FBO. FBOs offer such services as fueling, maintenance, and storage to aviators at public airports. Pursuant to a 1984 lease with the Boca Raton Airport Authority, Boca Aviation served as the sole FBO at the Boca Raton Airport. In 1997, Boca Aviation and the Airport Authority executed an amendment to the lease (the 15th Amendment) that gave Boca Aviation the rights to lease, develop, and manage the airport's only remaining parcel of undeveloped aviation land. Thereafter, a competitor of Boca Aviation, Boca Raton Jet Center (Boca Jet), challenged the lease amendment in a "Part 16" proceeding.
Part 16 of the FAA's regulations permits a "person directly and substantially affected by any alleged noncompliance [to] file a complaint with the Administrator." 14 C.F.R. § 16.23. The regulations define noncompliance as "anything done or omitted to be done by any person in contravention of any provision of any Act ... as to matters within the jurisdiction of the Administrator." Id. § 16.3. In its Part 16 complaint, Boca Jet alleged that the Authority's grant to Boca Aviation of the rights to the remaining parcel violated the exclusive rights provision of the Airport and Airway Improvement Act of 1982, 49 U.S.C. § 47107(a)(4). That provision states that the "Secretary of Transportation may approve a project grant application ... for an airport development project only if the Secretary receives written assurances ... that ... a person providing, or intending to provide, aeronautical services to the public will not be given an exclusive right to use the airport...."*fn1 The FAA, in turn, requires airports that receive federal financial assistance to comply with a variety of "grant assurances," one of which -- Grant Assurance No. 23 --prohibits endowing aeronautical service providers with exclusive rights. See Director's Determination, Boca Raton Jet Center, Inc. v. Boca Raton Airport Auth., FAA Docket No. 16-97-06, 1997 WL 1120747, at *3 (FAA Dec. 22, 1997) [ Boca Jet Initial Director's Determination ].
On December 22, 1997, David L. Bennett, the FAA's Director of Airport Safety and Standards, agreed with Boca Jet that the Airport Authority, by "leasing the last remaining parcel of aviation land to Boca Aviation, [was] in noncompliance with the provisions regarding exclusive rights as set forth in 49 U.S.C. Section 47107(a)(4) and the Authority's Federal grant agreements." Boca Jet Initial Director's Determination, at *1. This Initial Director's Determination ordered the Authority to present a Corrective Action Plan (CAP) that would end Boca Aviation's exclusive right to serve as the airport's FBO, and warned that the Authority's failure to do so would render it ineligible for any FAA grants. See id. at *14.
In September 1998, after meeting with the FAA to obtain further guidance on an acceptable plan, the Airport Authority submitted the 19th Amendment to the lease, which terminated the 15th Amendment and with it Boca Aviation's rights to the undeveloped parcel. The 19th Amendment explained that "the Lessor and Lessee have determined that it would be in the best interests of the Airport, the public and its users to terminate" Boca Aviation's lease for the parcel, "so as to cause the reinstatement of FDOT funding and the resolution of the pending Part 16 Action." J.A. 376. The Amendment further stated that the Authority would submit a plan that "shall provide for the construction, development and operation by the [Authority]" of facilities on the parcel. Id. On August 20, 1999, the Director issued a Final Director's Determination, concluding that the amended lease cured the exclusive rights problem and dismissing Boca Jet's complaint. Final Director's Determination, Boca Raton Jet Center, Inc. v. Boca Raton Airport Auth., FAA Docket No. 16-97-06, 1999 WL 732710, at *2-*3 (FAA Aug. 20, 1999) [ Boca Jet Final Director's Determination ].
In January 2000, the Airport Authority decided to have a third party -- rather than the Authority itself -- develop the parcel. Pursuant to that decision, the Authority issued a Request for Proposals. Because Boca Aviation was the sole FBO at the airport, the Authority did not permit it to bid. In June 2000, the Authority signed a lease agreement for development of the parcel with Premier Aviation of Boca Raton, LLC.
Beginning in January 2000, Boca Aviation mounted a series of legal challenges to the Authority's decision to lease the parcel to a third party. First, it sued the Authority in Florida state court, contending that the 19th Amendment required the Authority to develop the parcel itself, and that the Request for Proposals violated Boca Aviation's contractual rights under that amendment to the lease. In May 2000, the Florida court dismissed that claim, holding that the lease read as a whole permitted the Authority to assign its contractual rights to a third party. Boca Airport, Inc. v. Boca Raton Airport Auth., No. CL 00-00777 AE (Fla. Cir. Ct. 2000).
That case is currently on appeal.
Second, in June 2000, Boca Aviation sued the Airport Authority in the United States District Court for the Southern District of Florida, alleging that the Authority's new plan for the parcel violated the Contracts Clause of the U.S. Constitution. Two weeks later, the court denied Boca's motion for a temporary injunction and entered final judgment for the Authority. See Boca Raton Airport, Inc. v. Boca Raton Airport Auth., No. 00-8488-CIV, 2000 WL 963365 (S.D. Fla. June 25, 2000).
Finally, also in June 2000, Boca Aviation filed the Part 16 FAA complaint that gave rise to the present case. In that complaint, Boca Aviation alleged that the Authority's lease agreement with Premier Aviation violated a number of federal grant assurances including, in ...