Miller Aviation v. Milwaukee County Board of Supervisors

In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1891

Miller Aviation,

Plaintiff-Appellee,

v.

Milwaukee County Board of
Supervisors, Robert Jackson,
Sheila Aldrich, et al.,

Defendants-Appellants,

and

Milwaukee County,

Defendant-Third/Party Plaintiff-
Appellant,

v.

Air Vehicle Transportation, LLC,

Third/Party Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 94 C 1329--Patricia J. Gorence, Magistrate Judge.

Argued September 7, 2001/1 --Decided November 27, 2001

Before Bauer, Easterbrook, and Manion,
Circuit Judges.

Manion, Circuit Judge. Miller Aviation
owns and operates a corporate airplane
hangar on land that it leases from
Milwaukee County. Miller sued the
County/2 alleging that, during the
course of the lease, the County violated
numerous federal and state laws. After
five years of litigation, seven of
Miller’s twelve claims were dismissed by
the district court on the pleadings or by
summary judgment. In its final order, the
district court declined to exercise
supplemental jurisdiction over Miller’s
five remaining claims, as well as the
County’s supplemental counterclaims and
third-party claims, remanding them
instead to state court pursuant to 28
U.S.C. sec. 1367(c)(3). The County
appeals the district court’s remand of
these claims. We reverse and remand.

I.

Miller Aviation is a Wisconsin
partnership that owns and operates a
corporate airplane hangar at General
Mitchell International Airport. Miller’s
hangar is located on a parcel of land
that it leases from Milwaukee County, a
political subdivision of the State of
Wisconsin. This lease prohibits Miller
from subleasing any portion of the
premises without the express written
consent of the County,/3 or using the
hangar for commercial purposes. Six
months after executing this lease, Miller
sought the County’s permission to engage
in various commercial activities at the
hangar, and to sublease a portion of the
facilities to third parties. The County
refused to grant Miller’s request due to
the possible negative effects on the
airport’s commercial "fixed based
operator."/4 Shortly thereafter, Miller
initiated the underlying civil action
claiming that the County’s denial of its
request constituted a violation of
several federal and state laws, and was
unreasonably withheld in breach of
contract./5 At the heart of Miller’s
complaint is its contention that, since
at least 1987, the County has treated
general aviation lessees unequally,
discriminating with regard to matters
such as insurance coverage requirements,
required size of leased property,
duration of leases, and the right to
perform minor and major maintenance in
hangars. The County disputes these
allegations, and contends that its
reasons for denying Miller’s request were
reasonable and nondiscriminatory.

The procedural history of this case is
lengthy, spanning over a period of five
years. During this time, the district
court held several hearings, considered
numerous motions, oversaw a contentious
discovery process, waded through
countless briefs, and issued a host of
orders--two of which are relevant to this
appeal.

On November 10, 1997, the district court
issued a detailed order partially
granting the County’s motion for judgment
on the pleadings. This order resulted in
the dismissal of four Miller claims./6
On March 6, 2000, the district court
issued an exhaustive 71-page memorandum
and order that dismissed three more of
Miller’s claims on summary judgment,/7
but remanded the remaining five,/8 as
well as the County’s state law
counterclaims and third-party claims,/9
to state court pursuant to 28 U.S.C. sec.
1367(c)(3). The district court gave three
reasons for remanding the remaining
claims in this litigation: (1) when all
federal claims are dismissed before
trial, a district court should generally
relinquish jurisdiction over pendent
state law (i.e. supplemental) claims; (2)
the resolution of these claims involves
disputed factual issues;/10 and (3)
the claims involve issues of state law
that are most properly resolved by the
state courts. The County appeals the
district court’s decision remanding the
remaining claims in this case to state
court.

II.

The County argues on appeal that the
district court erred in remanding the
remaining claims in this litigation to
state court pursuant to 28 U.S.C. sec.
1367(c)(3). Section 1367(c)(3) provides
that a district court "may decline to
exercise supplemental jurisdiction over a
[pendent state law] claim . . . if . .
. the district court has dismissed all
claims over which it has original
jurisdiction."/11 The County contends
that the district court erred in
remanding these claims for four reasons:
(1) one of Miller’s remaining claims was
a federal claim that the district court
was required to exercise jurisdiction
over; (2) the other, supplemental claims
could not be remanded by the district
court, pursuant to sec. 1367(c)(3)
without the court first disposing of the
federal claim; (3) all of Miller’s
remaining claims are subject to dismissal
as a matter of law; and (4) because the
district court already expended a
substantial amount of judicial resources,
a remand of the remaining claims in this
litigation forces the state court to
unnecessarily duplicate this effort. We
conclude that the district court erred in
failing to retain jurisdiction over the
remaining claims in this litigation, and
in remanding them to state court.

A district court’s supplemental
jurisdiction ruling under sec. 1367(c) is
generally reviewed for an abuse of
discretion. See, e.g., Groce v. Eli Lilly
& Co., 193 F.3d 496, 499-500 (7th Cir.
1999). We review de novo, however, the
underlying basis of a sec. 1367(c) remand
to the extent that question is a legal
one. See, e.g., Lazorko v. Pennsylvania
Hosp., 237 F.3d 242, 247 (3d Cir. 2000),
cert. denied sub nom., Aetna U.S.
Healthcare v. Lazorko, 121 S.Ct. 2552
(2001); Engelhardt v. Paul Revere Life
Ins. Co., 139 F.3d 1346, 1351 n.4 (11th
Cir. 1998).

We begin our analysis in this case by
addressing the County’s contention that
Miller’s claim for "Violation of sec.
114.14, Wis. Stat., Subject to
Constraints by Federal Law, 49 U.S.C.A.
sec.40116" is a federal claim over which
the district court had original, not
supplemental, jurisdiction. In bringing
this claim, Miller alleged the following:

That Milwaukee is empowered by the [sic]
Wiscon-sin Law to "adopt regulations, and
establish fees or charges," for the use
of General Mitchell International Airport
pursuant to sec. 114.14, Wis. Stat. or
authorize an office, board or body to do
so . . . . That Milwaukee in setting such
fees is subject to the constraints of 49
U.S.C.A sec. 40116. That, as such,
Milwaukee’s fees and charges must be
"reasonable rental charges . . . for
airport facilities of an airport owned
and operated by that State or
subdivision" pursuant to 49 U.S.C.A. sec.
40116(e)(2). . . . That, as a result,
Milwaukee has violated sec. 114, Wis.
Stat. by charging the plaintiff
unreasonable rental fees . . . . That as
a result of the defendant’s conduct, the
plaintiff has been damaged . . . . R53,
28-29.

It is unclear from the face of the "well
pleaded"complaint whether Miller is
attempting to allege a state or federal
claim--the complaint is captioned as a
state law claim but the key allegation is
that the County violated a federal
statute. Miller confused the matter
further with cryptic descriptions of the
claim in the briefs it filed with the
district court./12 Fortunately, we
need not decide whether this claim is
based on federal or state law because
neither Wis. Stat. sec. 114.14 or 49
U.S.C. sec. 40116 provide Miller with a
private right of action upon which relief
can be granted./13 Whether a statute
contains a private right of action is a
question of law that we review de novo.
See Resolution Trust Corp. v. Gallagher,
10 F.3d 416, 418 (7th Cir. 1993)
(questions of statutory construction are
subject to de novo review).

A. Wis. Stat. sec. 114.14

Wis. Stat. sec. 114.14 provides that
"[t]he governing body of a city, village,
town or county may adopt regulations, and
establish fees or charges for the use of
[an] airport or landing field . . . ."
Miller alleges that the County violated
sec. 114.14 by "charging [it]
unreasonable rental fees." There is
nothing in the text of sec. 114.14,
however, explicitly providing for a
private right of action to challenge any
"fees or charges" established by
municipalities pursuant to this statute.
Therefore, Miller’s claim under sec.
114.14 is viable only if the statute
contains an implied private right of
action.

Under Wisconsin law, "[a] determination
of whether a statute creates a private
right of action is dependent on whether
there is a clear indication of the
legislature’s intent to create such a
right." Grube v. Daun, 563 N.W.2d 523,
526 (Wis. 1997). The legislative intent
to grant or withhold a private right of
action for the violation of a statute, or
the failure to perform a statutory duty,
"is determined primarily from the form or
language of the statute." Id. (citation
omitted). Furthermore, "[t]he nature of
the evil sought to be remedied, and the
purpose it was intended to accomplish,
may also be taken into consideration."
Id. (citation omitted). Thus, "the
general rule is that a statute which does
not purport to establish a civil
liability, but merely makes provision to
secure the safety or welfare of the
public as an entity, is not subject to a
construction establishing a civil
liability." Id. (citation omitted).
Accordingly, an implied private right of
action does not arise under Wisconsin law
unless "(1) the language or the form of
the statute evinces the legislature’s
intent to create a private right of
action, and (2) the statute establishes
private civil liability rather than
merely providing for protection of the
public." Id.

The language and form of sec. 114.14 do
not suggest that the Wisconsin
legislature intended to create a private
right of action, but instead illustrate
that the statute was designed to outline
the manner in which municipalities are to
manage their airports and landing fields,
and to provide general protection to the
public regarding same./14 Miller’s
failure to cite any such text on appeal,
or in its trial briefs below, only
reinforces our conclusion that this is
indeed the case.

Miller argues that the County violated
sec. 114.14 by violating sec.
40116(e)(2)’s requirement that "a State
or political subdivision of a State may
[only] levy or collect . . . reasonable
rental charges, landing fees, and other
service charges from aircraft operators
for using airport facilities of an
airport owned or operated by that State
or subdivision." There is no textual
basis in sec. 114.14 for such an
assertion, as the statute neither refers
to, nor incorporates by reference, 49
U.S.C. sec. 40116./15 As such, we
conclude that sec. 114.14 does not
provide for an implied private right of
action upon which relief could be granted
to Miller.

B. 49 U.S.C. sec. 40116 et seq. (The
"Anti-Head Tax Act")

Likewise, Miller’s claim also fails to
state a cognizable federal cause of
action under 49 U.S.C. sec. 40116.
Section 40116 is part of the Anti-Head
Tax Act ("AHTA"). There is no explicit
grant of a private right of action in the
AHTA. See, e.g., Northwest Airlines, Inc.
v. County of Kent, Michigan, 510 U.S.
355, 365 (1994) (Supreme Court declined
to consider whether AHTA contained an
implied private right of action). A
private right of action to enforce
federal law must be created by Congress.
See, e.g., Alexander v. Sandoval, 121
S.Ct. 1511, 1519 (2001). In Sandoval, the
Supreme Court outlined the standards to
be utilized by federal courts in
evaluating whether a statute contains a
private right of action, holding:
The judicial task is to interpret the
statute Congress has passed to determine
whether it displays an intent to create
not just a private right but also a
private remedy. Statutory intent on this
latter point is determinative. Without
it, a cause of action does not exist and
courts may not create one, no matter how
desirable that might be as a policy
matter, or how compatible with the
statute. "Raising up causes of action
where a statute has not created them may
be a proper function for common-law
courts, but not for federal tribunals."

Sandoval, 121 S.Ct. at 1519-20 (citations
omitted); see also National Organization
for Women, Inc. v. Scheidler, 2001 WL
1158973, at *4 (7th Cir. October 2, 2001)
(when interpreting the remedial
provisions of a statute, this court’s
inquiry will begin and end with the
statute’s text, if the text is
unambiguous).

Miller contends that the County charged
it unreasonable rental fees in violation
of sec. 40016(e)(2). The AHTA does not,
however, set standards for assessing the
reasonableness of fees and charges
established by state municipalities, and,
more importantly, there is nothing in the
text of sec. 40116 granting a private
remedy for violations of the statute.
Because Congress’ "statutory intent" is
"determinative" on the question of
whether a statute contains a private
remedy, a private right of action cannot
be implied with respect to the
AHTA./16

The Tenth Circuit recently reached this
same conclusion in Southwest Air
Ambulance, Inc. v. City of Las Cruces,
2001 WL 1230611, *5 (10th Cir. October
16, 2001)./17 See also Air Transport
Ass’n of America v. City of Los Angeles,
844 F. Supp. 555 (C.D. Cal. 1994). In
addition to the absence of any statutory
support for finding an implied private
right of action in the AHTA, the
Southwest Air Ambulance court noted that
its conclusion was further supported by a
provision in the Federal Aviation Act
("FAA") permitting "any person" to file a
complaint with the Secretary of
Transportation for violations of the AHTA
(which is encompassed within the FAA).
Id. at *6. We agree with the Tenth
Circuit that "the fact that Congress
provided a means by which violations of
the AHTA are ’fully enforceable through a
general regulatory scheme’"/18 can be
a relevant consideration in determining
whether a statute provides for an implied
private right of action. However, in
doing so we note that while "[l]anguage
in a regulation may invoke a private
right of action that Congress through
statutory text created . . . it may not
create a right that Congress has not."
Sandoval, 121 S.Ct. at 1522.
Because neither Wis. Stat. sec. 114.14
nor 49 U.S.C. sec. 40116 provide for a
private right of action, the district
court erred in failing to retain
jurisdiction over this claim and
dismissing it as a matter of law. While
we could remand the claim to the district
court for its consideration, such action
is unnecessary because an outright
dismissal of the claim, under either
state or federal law, is clearly
warranted. When a "claim plainly lacks
merit, it is better [for the Court of
Appeals] to resolve it on the merits
rather than remand for a determination by
the district judge . . . ." Korzen v.
Local Union 705, Int’l Bhd. of Teamsters,
75 F.3d 285, 289 (7th Cir. 1996). See
also Martin-Trigona v. Champion Fed. Sav.
& Loan Ass’n, 892 F.2d 575, 578 (7th Cir.
1989).

C. Supplemental Claims

Having disposed of Miller’s hybrid
federal-state claim, we now turn to the
County’s argument that the district court
abused its discretion when it remanded
the remaining, supplemental claims to
state court pursuant to 28 U.S.C. sec.
1367(c)(3).

At the outset of our analysis, we note
that a district court’s decision to
"relinquish pendent jurisdiction before
the federal claims have been tried is . .
. the norm, not the exception, and such a
decision will be reversed only in
extraordinary circumstances." Contreras
v. Suncast Corp., 237 F.3d 756, 766 (7th
Cir.), cert. denied, 122 S.Ct. 62 (2001).

Nevertheless, we have created a number
of exceptions to this general rule. The
County argues that the procedural history
of this case warrants the recognition of
two such exceptions in this case. The
first exception invoked by the County
could be properly characterized as the
"preclusive effect" exception. In these
cases, we have held that when "the
district court, in deciding a federal
claim, decides an issue dispositive of a
pendent claim there is no use leaving the
latter to the state court." Wright v.
Associated Ins. Companies, Inc., 29 F.3d
1244, 1251 (7th Cir. 1994). The second
exception relied on by the County is
based on judicial efficiency. In Wright,
we held that a district court should also
retain jurisdiction over supplemental
claims when "substantial judicial
resources have already been committed, so
that sending the case to another court
will cause a substantial duplication of
effort." Id. See also Myers v. County of
Lake, Indiana, 30 F.3d 847, 850 (7th Cir.
1994); Zepik v. Tidewater Midwest, Inc.,
856 F.2d 936, 945 (7th Cir. 1988); Graf
v. Elgin, Joliet and Eastern Ry. Co., 790
F.2d 1341, 1347-48 (7th Cir. 1986).

This case presents a good example of
when a district court should exercise
supplemental jurisdiction over pendent
state law claims for reasons of judicial
efficiency. The judicial resources
expended by the district court in this
case are considerable. The district court
spent more than five years overseeing
this multifaceted litigation. During this
time, the district court considered 22
motions, held 9 hearings, and issued 19
orders, including the 71-page decision
presently before us on appeal.
Additionally, the district court’s orders
demonstrate a mastery of the minutiae of
airport administration, aviation
commerce, as well as the inner workings
of the various decision-making processes
within Milwaukee County’s government. For
these reasons, we conclude that a remand
of the remaining supplemental claims
would require a "duplication of effort"
by the state court that undermines the
very purpose of supplemental
jurisdiction--judicial efficiency.

This does not, however, end our inquiry.
The County also requests, in addition to
reversing the district court’s remand of
the supplemental claims, that we dismiss
Miller’s four remaining supplemental
claims as a matter of law. The County
argues that the district court made
several findings of fact in its final
order which, if applied to these claims,
disposes of them entirely. The district
court, however, suggested in its final
order, albeit without explanation, that
it believed genuine issues of material
fact remain with respect to these claims.

Unlike the sec. 114.14/sec. 40116 claim,
the resolution of which involved only
questions of law, Miller’s four remaining
supplemental claims must be analyzed by
applying the district court’s findings of
fact to applicable state law. This is a
proper function of the district court,
and we therefore decline the County’s
invitation to dispose of these claims on
appeal. Instead, we remand both parties’
remaining supplemental claims to the
district court for its final
consideration.

III.

The district court erred in remanding
the remaining claims in this case to
state court pursuant to 28 U.S.C. sec.
1367(c)(3). Accordingly, we Dismiss
Miller’s sec. 114.14/ sec. 40116 claim,
and Reverse and Remand the district court’s
remand of the remaining supplemental
claims to state court, with instructions
to proceed in the manner outlined in this
opinion.

FOOTNOTES

/1 On June 4, 2001, we issued an order,
pursuant to Circuit Rule 31(d), permitting this
appeal to be submitted on the brief of the
appellant and the record, and without a brief or
oral argument by the appellee.

/2 Miller sued Milwaukee County, the
Milwaukee County Board of Supervisors (through
its chairman and each individual supervisor), the
Milwaukee County executive, the director of the
Milwaukee County Department of Public Works, the
Milwaukee County clerk, the Committee on
Transportation and Public Works for Milwaukee
County (through its chairman and each individual
supervisor serving on the committee). The
defendants will be collectively referred to
throughout this opinion as "Milwaukee County" or
the "County."

/3 The lease did provide, however, that such
"approval shall not be unreasonably withheld,
evidenced by resolution that has been fully
adopted in all respects by its Board of
Supervisors."

/4 A "fixed base operator" is "an individual
or firm operating at an airport and providing
general aircraft services such as maintenance,
storage, ground and flight instructions, etc."
Order 5190.6A, Airport Compliance Requirements,
DOT, Federal Department of Aviation (October 2,
1989).

/5 Miller’s complaint, as amended in final
form, included claims against the County for
violations of: 49 U.S.C. sec. 47107, enforceable
through 42 U.S.C. sec. 1983; U.S. Const. art. I,
sec. 10, cl. 1 (i.e. the "Contracts Clause"),
enforceable through 42 U.S.C. sec. 1983; 15
U.S.C. secs. 1, 2, enforceable through 15
U.S.C. sec. 15 (i.e. "Sherman Antitrust Act"); 49
U.S.C. sec. 40101, enforceable through 42 U.S.C.
sec. 1983; U.S. Const. amend. XIV, sec. 1 (i.e.
"Equal Protection" and "Due Process" Clauses),
enforceable through 42 U.S.C. sec. 1983; Wis.
Stat. sec. 133.03, enforceable through Wis. Stat.
sec. 133.18 (i.e. "Wisconsin Antitrust Act");
"common law right not to have interference with
prospective economic advantage;" state contract
law (i.e. breach); state fraud law; state
negligence law, and Wis. Stat. sec. 114.14
"subject to constraints [of]" 49 U.S.C. sec.
40116. [R53, 7-29]. The district court had
jurisdiction over the federal claims pursuant to
28 U.S.C. sec. 1331, and the state claims
pursuant to 28 U.S.C. sec. 1367.

/6 The district court dismissed Miller’s
claims brought pursuant to 49 U.S.C. sec. 47107,
the Contracts Clause, as well as its federal and
state antitrust claims.

/7 The district court dismissed Miller’s 49
U.S.C. sec. 40101, due process, and equal
protection claims in this order.

/8 The district court remanded to state
court Miller’s claims for "interference with
prospective economic advantage;" breach of
contract, fraud, negligence, and violation of
Wis. Stat. sec. 114.14 "subject to" 49 U.S.C.
sec. 40116.

/9 The district court also declined to
exercise supplemental jurisdiction over the
pendent state law counterclaims and third-party
claims brought by the County against Miller and
its majority partner, Air Vehicle Transportation,
L.L.C., for breach of contract, breach of the
duty of good faith and fair dealing, and fraud.
It is unclear, however, from the County’s notice
of appeal or appellate brief, whether the County
is asserting that the district court abused its
discretion by remanding its supplemental claims
to state court. Generally, in the absence of an
assertion of error, we will not examine the
prudence of a district court’s decision declining
to exercise supplemental jurisdiction under sec.
1367(c). See, e.g., Myers v. County of Lake,
Indiana, 30 F.3d 847, 850 (7th Cir. 1994).
Nevertheless, Miller has not raised this point on
appeal. Accordingly, Miller waived the waiver
defense that it might have otherwise had with
respect to the County’s supplemental claims. See,
e.g., Soo Line R.R. Co. v. St. Louis Southwestern
Ry. Co., 125 F.3d 481, 483 fn. 2 (7th Cir. 1997)
(defense of waiver can be waived if opposing
party fails to raise it).

/10 The County argues that the district court
abused its discretion by remanding Miller’s
remaining claims to state court after making the
following assertion in its final order: "In this
case, the resolution of plaintiff’s [remaining]
claims involves disputed factual issues." R135,
69. The County contends that no genuine issues of
material fact remain with respect to any of these
claims because the district court’s final order
included findings of fact that negated an
essential element of proof for each claim. As
such, the County argues that, on remand, this
unelaborated upon assertion will needlessly send
the state court on a "wild goose chase" through
a massive and complicated record. We agree with
the County that the district court’s assertion is
unusual given the context in which it was made
(i.e. the denial of the County’s motion for
summary judgment of Miller’s remaining claims).
However, because we reverse the district court’s
remand on separate grounds, we need not address
the issue of whether the district court abused
its discretion in remanding Miller’s remaining
claims after making the determination that "dis
puted factual issues" remained with respect to
these claims.

/11 District courts may also decline to
exercise supplemental jurisdiction over a
supplemental claim if: (1) "the claim raises a
novel or complex issue of State law," (2) "the
claim substantially predominates over the claim
or claims over which the district court has
original jurisdiction," or (3) "in exceptional
circumstances, there are other compelling reasons
for declining jurisdiction." 28 U.S.C. sec.
1367(c)(1), (2), (4).

/12 Miller’s trial briefs are somewhat
inconsistent in their characterizations of this
claim. In one brief, Miller couches the claim as
a hybrid federal-state claim. However, in a
subsequent brief, Miller suggests that the
district court may need to treat the claim as a
federal cause of action.

/13 The district court came close to making
this very conclusion in its November 10, 1997
order, noting "this court has serious questions
that this statute [sec. 114.14] with or without
49 U.S.C. sec. 40116 creates a private cause of
action . . . ." R55, 22.

/14 See, e.g., Wis. Stat. sec. 114.14(3)(b),
providing that "[t]he exercise of authority by
the airport commission . . . shall be subject to
all of the following conditions: 1. The public
may in no case be deprived of equal and uniform
use of the airport . . . ." (emphasis added).

/15 We also note that there are, to our
knowledge, only four decisions that address, in
any manner whatsoever, the purpose of sec.
114.14, none of which support a finding that the
statute provides for an implied private right of
action. See State v. Davis, 216 N.W.2d 31 (Wis.
1974); Courtesy Cab Co. v. Johnson, 103 N.W.2d 17
(Wis. 1960); Wussow v. Gaida, 29 N.W.2d 42 (Wis.
1947); Cedarhurst Air Charter, Inc. v. Waukesha
County, 110 F. Supp. 2d 891 (E.D. Wis. 2000).

/16 In reaching this conclusion, we recognize
that a previous decision of this circuit,
Indianapolis Airport Auth. v. American Airlines,
Inc., 733 F.2d 1262 (7th Cir. 1984), abrogated by
Northwest Airlines, 510 U.S. 355 (1994), has been
interpreted by other courts as assuming, without
discussion, that the AHTA provides for a private
right of action. See, e.g., Air Transport Ass’n
of America v. City of Los Angeles, 844 F. Supp.
550, 553 n.2 (C.D. Cal. 1994). In Indianapolis,
this court held that concession revenues must be
taken into account in determining what airport
fees to impose upon airlines under the AHTA.
Indianapolis, 733 F.2d at 1266. While it is true
that the plaintiff in Indianapolis brought a
claim pursuant to the AHTA, and that the district
court’s ruling on this claim was appealed, this
court did not explicitly hold that the AHTA
contains an implied private right of action. The
Indianapolis decision is devoid of any analysis
that would support such a finding. Therefore, we
can only surmise that the court in Indianapolis
either assumed the existence of an implied
private right of action in the AHTA as a result
of the matter not being challenged on appeal (as
was the case in Northwest Airlines, 510 U.S. at
365), or relied on jurisprudence that has since
fallen into disfavor. See, e.g., Mallett v.
Wisconsin Div. of Vocational Rehab., 130 F.3d
1245, 1248-49 (7th Cir. 1997) (noting that the
Supreme Court’s jurisprudence in recent years has
taken a more restrictive view of implying private
rights of action in federal statutes). In any
event, subsequent Supreme Court decisions, like
Sandoval (discussed herein), make it clear that
a private right of action cannot be implied with
respect to the AHTA.

/17 Like the Tenth Circuit, we recognize that
the First and Sixth Circuits have held that the
AHTA, originally codified as 49 U.S.C. sec. 1513,
creates an implied private right of action. See
Interface Group, Inc. v. Massachusetts Port
Auth., 816 F.2d 9, 16 (1st Cir. 1987); Northwest
Airlines, Inc. v. County of Kent, Michigan, 955
F.2d 1054, 1058 (6th Cir. 1992), aff’d, 510 U.S.
355 (1994) (with the Supreme Court not reaching
the question of whether the AHTA provides for an
implied private right of action). We are,
nevertheless, convinced that under current
Supreme Court precedent (e.g. Sandoval) the AHTA
does not contain an implied private right of
action.

/18 Southwest Air Ambulance, 2001 WL 1230611
at *6.