If you are considering filing a Part 16 Complaint, the first question you should ask is: Can I satisfy the strict standing requirements? The purpose of this article is to educate the average airport tenant, user or sponsor on the standing requirements for filing a Part 16 Complaint with the Federal Aviation Administration (FAA).
What is Standing?
Standing is “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right,” 1442 Black’s Law Dictionary, 8th Ed. Simply stated, a party seeking redress before a court or tribunal must demonstrate that it has been harmed before it will be allowed to proceed. The purpose of standing requirements is to conserve judicial resources and prevent wasteful and unnecessary proceedings. The requirements for standing vary by jurisdiction. The FAA, like other courts, requires that parties meet its standing requirements before initiating and pursuing a Part 16 action.
What are the Requirements for Standing?
The standing requirements for initiating and pursuing a Part 16 Action are set forth in 14 C.F.R. §§16.21 and 16.23.14 C.F.R. §16.21 sets forth the requirement that the aggrieved party must first initiate and engage in good faith efforts to resolve the disputed matter informally with the individual or entities responsible for the non-compliance. 14 C.F.R. §16.23 requires that the party filing the complaint be “directly and substantially affected by any alleged noncompliance.” The complaining party must specifically claim that it engaged in pre-complaint resolution efforts and that it is directly and substantially affected by the non-compliance in order to demonstrate standing.
- a. Have you engaged in pre-complaint resolution?
The pre-complaint resolution efforts can be accomplished by requesting a meeting with the non-compliant party. It is recommended, however, that the meetings and conversations be documented by sending confirming letters and/or emails following the meetings. If the non-compliant party refuses to meet and discuss your concerns, make sure you send a confirming letter documenting their refusal to meet and discuss. In Valley Aviation Services, LLP v. City of Glendale, AZ (FAA Docket No. 16-09-06 (May 24, 2011)), the FAA determined that documenting requests for meetings to discuss issues which were the subject matter of the Complaint were considered to be good faith, pre-complaint resolution attempts sufficient to demonstrate standing.
- b. Have you been “directly and substantially affected”?
In recent years, the FAA has found standing in most cases to be a very liberal interpretation of what it means to be “directly and substantially affected.” Several recent cases have expanded the scope of those with standing to file a Part 16 Complaint.
In particular, in Kenneth D. Paskar and Friends of LaGuardia Airport, Inc. v. The Port Authority of New York and New Jersey (FAA Docket No. 16-11-04 (Sept. 27, 2012)), the FAA found that both Mr. Paskar and the Friends of LaGuardia Airport Inc. (“FOLA”) had standing to assert a Part 16 Complaint challenge the Port Authority of New York and Jersey’s failure to prevent the establishment of a hazard adjacent to LaGuardia Airport. In determining the existence of standing, the Court noted that Mr. Paskar was a licensed pilot and aeronautical user of LaGuardia Airport and that FOLA’s members consisted of individuals and businesses that use LaGuardia Airport as either passengers or pilots. In determining that there was standing, the FAA held that Mr. Paskar had standing as a pilot and user of the Airport and, further, that FOLA had standing to assert a Part 16 Complaint as a representative of its members who meet the standing requirement.
Another case in which the FAA liberally interpreted the “directly and substantially affected” standard is Evergreen International Airlines, Inc. v. The Port Authority of New York and New Jersey (FAA Docket 16-10-04 (April 4, 2012)). Evergreen International Airlines Inc. (“Evergreen”) challenged the Port Authority of New York and New Jersey’s application of a privilege permit with respect to its sister company Eagle. The permit authorized Eagle to provide cargo aircraft handling and imposed a fee of 5 percent on gross receipt fees from all ground handling activity. Eagle, despite the provision of ground handling services to its sister company, which it viewed as self-servicing, was required to pay and therefore pass the 5 percent charge onto its sister company, Evergreen. The Port Authority of New York and New Jersey challenged Evergreen’s standing to challenge the fees, relying upon a series of federal court cases and argued that “[c]ourts have held that when a party is charged a fee and passes the fee onto the party’s customers, although the party who has assessed the fee has standing to challenge the fee . . . the customer to whom the fee is ‘passed on’ does not have standing.” The FAA declined to follow the case law cited by the Port Authority of New York and New Jersey, holding that “[t]he fact that the Complainant [Evergreen] is not paying the fees directly to the Port Authority does not preclude Evergreen . . . from being directly and substantially affected by any alleged noncompliance.”
The FAA’s liberal interpretation of the standing requirements should caution airport sponsors to take complaints seriously and to not dismiss an aggrieved party’s attempt at pre-complaint resolution solely because they question the aggrieved party’s standing.
What if you don’t meet the Standing Requirements?
If you file a Part 16 Complaint with the FAA without meeting the requirements, your complaint may be dismissed with prejudice. 14 C.F.R. §16.25 states that: “Within 20 days after the receipt of the complaint, the Director will dismiss a complaint, or any claim made in a complaint, with prejudice if. . . . (c) The complainant lacks standing to file a complaint under §§ 16.3 and 16.23.” The fact that the dismissal is with prejudice means you may be precluded from re-filing your Part 16 Complaint or even precluded from filing future Part 16 Complaints. Therefore, unless you are sure you meet the standing requirements; do not file a Part 16 Complaint. You may, however, be able to seek relief by filing a Complaint under the rules outlined in 14 C.F.R. Part 13.
BIO
Paul A. Lange
Founder/Leader
Paul A. Lange LLC
Lange founded and leads the law offices of Paul A. Lange LLC with offices in Conn. and NY. The firm practices nationwide and internationally in various aviation-related legal matters, including airport development, financing, regulatory enforcement matters and disputes.
Alison L. McKay
Attorney
Paul A. Lange LLC
McKay focuses her practice primarily on employment, litigation and insurance. Among her more noteworthy matters litigated was the successful defense in U.S. District Court of an airport fixed base operator from Rehabilitation Act claims. McKay is a member of NBAA's Employment Issues Working Group, which was created to address specialized issues associated with aviation employment. In addition to Alison's employment practice, she has extensive experience defending multi-district and complex multi-jurisdictional litigation arising from aviation accidents.
