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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 1, 2004 Decided November 16, 2004
No. 03-1136
BOCA AIRPORT, INC., D/B/A BOCA AVIATION,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
BOCA RATON AIRPORT AUTHORITY,
INTERVENOR
On Petition for Review of an Order of the
Federal Aviation Administration
Steven S. Rosenthal argued the cause for petitioner. With
him on the briefs was Jeffery A. Tomasevich.
Teal Luthy Miller, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Peter D. Keisler, Assistant Attorney General, and Robert S.
Greenspan and Peter R. Maier, Attorneys.
Arthur P. Berg argued the cause for intervenor. With him
on the brief were Thomas R. Devine and Kenneth W. Salin-
ger. David T. Ralston, Jr. entered an appearance.
Before: ROGERS, TATEL, and GARLAND, Circuit Judges.
GARLAND, Circuit Judge: The question in this case is
whether the Federal Aviation Administration (FAA) has un-
lawfully 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 amend-
ment guarantees no federal rights to the petitioner, we deny
the petition for review.
I
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’’ proceed-
ing.
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 TTT 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
3
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 TTT for an airport development project only if the
Secretary receives written assurances TTT that TTT a person
providing, or intending to provide, aeronautical services to the
public will not be given an exclusive right to use the air-
portTTTT’’1 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 exclu-
sive 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 Di-
rector 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 noncompli-
ance 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 De-
termination, 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.
1 An exception to this provision states that ‘‘a right given to only
one fixed-base operator to provide services at an airport’’ will be
deemed not to be an exclusive right if it ‘‘would be unreasonably
costly, burdensome, or impractical for more than one fixed-base
operator to provide the services; and TTT 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.’’ 49 U.S.C.
§ 47107(a)(4).
4
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 terminat-
ed 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 opera-
tion by the [Authority]’’ of facilities on the parcel. Id. On
August 20, 1999, the Director issued a Final Director’s Deter-
mination, concluding that the amended lease cured the exclu-
sive 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 devel-
opment 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 contractu-
al 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 contrac-
tual rights to a third party. Boca Airport, Inc. v. Boca Raton
5
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 South-
ern 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 mo-
tion 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 feder-
al grant assurances including, in particular, Grant Assurance
No. 1 (‘‘General Federal Requirements’’), which states:
[The airport sponsor] will comply with all applicable
Federal laws, regulations, TTT and requirements as they
relate to the application, acceptance and use of Federal
funds for this project including but not limited to TTT 14
C.F.R. Part 16 — Rules of Practice For Federally As-
sisted Airport Enforcement Proceedings.
Director’s Determination, Boca Airport, Inc. v. Boca Raton
Airport Auth., FAA Docket No. 16-00-10, 2001 WL 438619, at
*11 (FAA Apr. 26, 2001) [Boca Aviation Director’s Determi-
nation]. Boca Aviation argued that the Boca Jet Final
Director’s Determination required the Authority to develop
the remaining parcel itself, and that the Authority’s lease
with Premier violated Boca Jet and therefore Grant Assur-
ance No. 1.
On April 26, 2001, Director Bennett rejected Boca Avia-
tion’s complaint, finding that:
A plain reading of the [Boca Jet Initial] Director’s Deter-
mination reveals that the FAA’s sole purpose for requir-
ing the Authority to submit a CAP was to ensure that
the exclusive right granted to Boca Aviation TTT was in
6
fact extinguished. The Director’s Determination neither
specified the facilities to be constructed nor required the
[Authority] itself to construct and operate facilities on
the parcel.
Boca Aviation Director’s Determination, at *18. ‘‘Likewise,’’
he continued,
the [Boca Jet] Final Director’s determination that accept-
ed the Authority’s CAP was limited to ensuring that the
exclusive right was extinguishedTTTT [T]he CAP did not
require the [Authority] itself to construct or operate the
facilities described in the 19th Amendment to Boca Avia-
tion’s lease. Rather, this Office accepted the [Authori-
ty’s] proposal as one way to extinguish the exclusive
right granted to Boca Aviation.
Id. at *18-*19. Finding that the lease with Premier was
‘‘consistent with the express intent of the [Boca Jet] Final
Director’s Determination and the Authority’s continuing Fed-
eral obligations under the grant assurances,’’ Director Ben-
nett dismissed the complaint. Id. at *19.
Boca Aviation appealed the Boca Aviation Director’s Deter-
mination to the FAA’s Associate Administrator for Airports.
In its appeal, Boca Aviation contended that the Director had
misread the Boca Jet Final Director’s Determination. It
insisted that Boca Jet had obligated the Authority itself to
develop the parcel, as provided in the 19th Amendment.
The Associate Administrator, who issued the FAA’s final
decision in this matter, affirmed the Director’s reading of
Boca Jet. First, he noted that the same person, Director
Bennett, had issued the determinations in both Boca Jet and
Boca Aviation, and said that he doubted the Director had
failed to ‘‘interpret the words in his own report correctly.’’
Final Decision and Order, Boca Airport, Inc. v. Boca Raton
Airport Auth., FAA Docket No. 16-00-10, 2003 WL 1963859,
at *20 (FAA Mar. 20, 2003) [Boca Aviation Final Decision].
Second, the Associate Administrator’s own reading of Boca
Jet persuaded him that, although the decision ‘‘contemplated
that the Authority would operate the aeronautical facilities on
7
the parcel,’’ that was ‘‘not material to the decision.’’ Id.
Rather, ‘‘[w]hat was material to the Final Director’s Determi-
nation in Boca Jet was that the Authority eliminate Boca
Aviation’s exclusive right.’’ Id. at *21. The Administrator
therefore affirmed the Boca Aviation Director’s Determina-
tion and dismissed the appeal. Id. at *45.
II
Boca Aviation now petitions for review of the Boca Avia-
tion Final Decision. This court may overturn the FAA’s
factual findings only if they are not ‘‘supported by substantial
evidence.’’ 49 U.S.C. § 46110(c). We may overturn non-
factual aspects of the FAA’s decision only if they are ‘‘arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’’ 5 U.S.C. § 706(2)(A); see D&F Afonso
Realty Trust v. Garvey, 216 F.3d 1191, 1194 (D.C. Cir. 2000);
Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir.
1993).
Boca Aviation’s central argument is that the 19th Amend-
ment required the Airport Authority to develop the parcel on
its own, that the FAA ‘‘incorporated [the 19th Amendment’s]
critical terms into the Boca Jet Final Director’s Determina-
tion,’’ Petitioner’s Br. at 35, and that the Authority’s decision
to lease the parcel to Premier Aviation was therefore a
violation of Federal Grant Assurance No. 1, which provides
that an airport sponsor ‘‘will comply with all applicable Fed-
eral TTT requirements TTT including but not limited to TTT
Part 16 TTT Proceedings.’’ The lynchpin of this argument is,
of course, the claim that the determination in the Boca Jet
Part 16 proceeding incorporated the provision of the 19th
Amendment that required the Authority itself to develop the
parcel. If Boca Jet did not do so, then the Authority’s failure
to comply with the provision did not constitute a failure to
comply with the results of a Part 16 proceeding.2
2Boca Aviation also attacks the FAA’s Final Decision on the
ground that it incorrectly asserted that 49 U.S.C. § 47107(a)(4)
barred the Airport Authority from permitting Boca Aviation to
develop the remaining parcel in the first place. But the Final
8
As noted above, Director Bennett — the same person who
wrote the Boca Jet Final Director’s Determination — disa-
greed with Boca Aviation’s reading of that determination.
‘‘[T]he Final Director’s Determination that accepted the Au-
thority’s CAP,’’ he said, ‘‘was limited to ensuring that the
exclusive right was extinguishedTTTT [T]he CAP did not
require the [Authority] itself to construct or operate the
facilities described in the 19th Amendment to Boca Aviation’s
lease.’’ Boca Aviation Director’s Determination, at *18-*19.
The FAA’s Associate Administrator read Boca Jet the same
way the Director did, concluding that Boca Jet ‘‘neither
specified the facilities to be constructed nor required the
Authority itself to construct and operate facilities on the
parcel,’’ and that ‘‘[w]hat was material to the Final Director’s
Determination in Boca Jet was that the Authority eliminate
Boca Aviation’s exclusive right.’’ Boca Aviation Final Deci-
sion, at *21.
As we have repeatedly held, ‘‘[a]n agency’s interpretation of
its own precedent is entitled to deference.’’ Cassell v. FCC,
154 F.3d 478, 483 (D.C. Cir. 1998).3 The FAA’s reading of
Boca Jet is certainly a reasonable one. The Initial Director’s
Determination in that case declared that ‘‘the [Authority], by
denying a lease to Boca Jet, and leasing the last remaining
parcel of aviation land to Boca Aviation, is in noncompliance
with the provisions regarding exclusive rights as set forth in
49 U.S.C. Section 47107(a)(4).’’ Boca Jet Initial Director’s
Determination, at *14. The Director therefore ordered the
Decision’s statement on that point was merely a reference to Boca
Jet, which so held, and the petitioner cannot collaterally attack that
determination in this case. See Boca Aviation Final Decision, at
*23 (discussing Boca Jet Final Director’s Determination). More
important, and as Boca Aviation acknowledges in its Reply Brief,
the ‘‘question raised by this Petition for Review is not whether the
15th Amendment created an unlawful exclusive right, but rather
whether FAA erred in not enforcing the terms of TTT the 19th
Amendment[ ] against the Authority.’’ Reply Br. at 20.
3 Accord Entergy Servs., Inc. v. FERC, 319 F.3d 536, 541 (D.C.
Cir. 2003); Global Crossing Telecomms., Inc. v. FCC, 259 F.3d 740,
746 (D.C. Cir. 2001).
9
Authority to ‘‘present a plan for approval TTT on how it
intends to eliminate the continuation of an exclusive right to
Boca Aviation.’’ Id. (emphasis added). After the Authority
submitted the 19th Amendment, the Boca Jet Final Di-
rector’s Determination explained exactly why it was ap-
proved: ‘‘The 19th [A]mendment was acceptable in that it
served to require that Boca Aviation relinquish any and all
rights in and to the [parcel].’’ Boca Jet Final Director’s
Determination, at *2.
Nothing in the Boca Jet Final Director’s Determination
suggests that it made any difference to the FAA whether the
Authority developed the parcel on its own or contracted with
a third party. To the contrary, the Determination made clear
that what mattered was that ‘‘the 19th [A]mendment will
resolve the issue of the exclusive right as previously granted
to Boca Aviation.’’ Id. Indeed, as the Director subsequently
noted, Boca Jet ‘‘specifically contemplated that the [Authori-
ty] may choose an alternative CAP’’ involving a lease to a
third party, since Boca Jet contained a ‘‘ ‘request that the
Authority seek guidance from the [FAA] on any future
change in the use or operation of these facilities, including
any intent to lease the facilities to a commercial aeronauti-
cal service provider.’ ’’ Boca Aviation Director’s Decision, at
*19 (quoting Boca Jet Final Director’s Determination, at *2)
(emphasis added).4
4 Boca Aviation contends that this request referred only to a lease
of ‘‘presumably already built’’ facilities, rather than to a lease
permitting the building of facilities. Reply Br. at 7. The petition-
er’s reading is reasonable; but so, too, is the FAA’s view that the
language contemplated the kind of lease offered to Premier Avia-
tion. The petitioner further contends that this request was includ-
ed only because the FAA was concerned that the Authority might
once again decide to lease the facilities to Boca Aviation. But that
construction is plainly unreasonable, as the Director had already
made it unmistakably clear that such a lease would violate 49 U.S.C.
§ 47107(a)(4) and render the Airport Authority ineligible for new
FAA grants. See Boca Jet Initial Director’s Determination, at
*14.
10
Boca Aviation places great weight on the fact that the Boca
Jet Final Director’s Determination described the course of
the negotiations leading to the 19th Amendment, including
proposed changes to the airport layout plan that provided for
the ‘‘construction, development and operation by the Authori-
ty’’ of the disputed parcel. Boca Jet Final Director’s Deter-
mination, at *2. But the cited passages are just that: a
description of the background negotiations. By contrast, as
the Director noted in his determination in Boca Aviation, the
Boca Jet Final Director’s Determination made clear that the
FAA regarded the 19th Amendment as ‘‘acceptable in that it
served to require that Boca Aviation relinquish any and all
rights in and to the [parcel].’’ Boca Aviation Director’s
Determination, at *18 (quoting Boca Jet Final Director’s
Determination, at *2) (emphasis added). That language nei-
ther states nor suggests that the provision requiring the
Authority to develop the property was relevant to its accepta-
bility.
Boca Aviation further contends that entering into the 19th
Amendment, which extinguished its exclusive lease, would
have been irrational had it not expected that it would have a
federal forum in which to enforce the Airport Authority’s
promise to develop the parcel. The petitioner offers no
reason why it would have been irrational for it to rely on the
Florida state courts — rather than the FAA — to provide a
forum for enforcement of the contractual obligations created
by the lease amendment.5 But whether Boca Aviation acted
rationally or irrationally is beside the point. As the FAA
5 Nor is it clear that it would have been irrational for Boca
Aviation to give up its exclusive rights even if it had received no
concession in return. As the preamble to the 19th Amendment
explained, 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 ‘‘so as to cause the reinstatement
of FDOT funding and resolution of the pending Part 16 Action.’’
J.A. 376. Insisting on its exclusive lease could well have been self-
defeating for Boca Aviation, as it would have led to a cut-off of
federal funds that would likely have injured Boca Aviation as well
as the airport.
11
found, the sole ‘‘intent of the Director’s Determination in the
Boca Jet case was to eliminate an exclusive rights violation at
the airport.’’ Boca Aviation Final Decision, at *24. Hence,
‘‘[w]hether the option exercised by the Authority in following
through on its plan to develop the 15 acres violated a specific
issue of contract law between [Boca Aviation] and the [Au-
thority] is a matter for a state court to decide; a Part 16
complaint is not the right forum to resolve that issue.’’ Id.
The petitioner protests that this conclusion is inconsistent
with a number of cases in which agencies have enforced
agreements like that made by the Authority here. One such
case is City of Pompano Beach v. FAA, 774 F.2d 1529 (11th
Cir. 1985), in which the FAA enforced a Part 16 stipulation
requiring the City to offer the complainant its ‘‘standard fixed
base operator lease.’’ 774 F.2d at 1537. Pompano Beach
does not, however, advance the petitioner’s cause. There, the
FAA enforced the stipulation because the City’s refusal to
offer the complainant its standard lease was ‘‘unjustly dis-
criminatory,’’ and had ‘‘the effect of granting [an] exclusive
right to the use’’ of the City’s airpark, in violation of 49
U.S.C. app. § 1349(a) (1982). Id. at 1538. The Boca Raton
Airport Authority’s decision to lease the remaining airport
parcel to Premier Aviation, by comparison, violates no statu-
tory provision.
Boca Aviation also cites Conant v. Office of Personnel
Management, 255 F.3d 1371 (Fed. Cir. 2001), for the proposi-
tion that ‘‘[w]here a settlement agreement between the par-
ties is relevant to an administrative proceeding, directly
addresses an issue in dispute, and is not contrary to law, an
administrative agency cannot choose to ignore the agree-
ment.’’ 255 F.3d at 1377. But both parties in Conant (one of
which was a government agency) expressly intended that
their settlement agreement would govern future administra-
tive proceedings in that case. Id. at 1376-77. There was no
such agreement here; to the contrary, the FAA found that
the development provision pressed by Boca Aviation was
immaterial to the agency proceedings.6
6Two other cases cited by the petitioner, Texas Eastern Trans-
mission Corp. v. FERC, 966 F.2d 1506 (D.C. Cir. 1992), and Cajun
12
In sum, there was nothing arbitrary, capricious, or other-
wise unlawful in the FAA’s conclusion that the Airport Au-
thority’s lease with Premier Aviation was in compliance with
federal requirements, including the decision in Boca Jet.
III
The 19th Amendment notwithstanding, we hold that Boca
Aviation has no federally enforceable right to compel the
Boca Raton Airport Authority to construct, develop, and
operate the last remaining parcel of land at the Airport. If
relief is to be had at all, Boca Aviation must continue to
pursue it in state court. The petition for review is therefore
Denied.
Electric Power Cooperative, Inc. v. FERC, 924 F.2d 1132 (D.C. Cir.
1991), are even less relevant to the issues on review here. Those
cases merely observed that a court should defer to an agency’s
interpretation of a private settlement agreement approved by the
agency. They did not hold that the agency was required to enforce
all of the terms of such an agreement. See Texas Eastern, 966 F.2d
at 1509; Cajun Electric, 924 F.2d at 1135.