In the first three articles of this series, we discussed some of the more common grant assurances that are disputed. Our fourth article took a different direction, namely how to begin preparing for litigation or settlement discussions in advance of commencing litigation. The place to start is ensuring that your own house is in order, hence the tag line “People who live in glass houses …”
Since our last article discussed ensuring that your own house is in order — your defensive strategy — this article will help you plan your offensive strategy. How do you go about determining whether the competitive harm that you are suffering is actionable? You start by gathering and organizing the evidence against those who are causing you harm.
What Are Your Complaints; How Do They Stack Up Against The Rules?
You probably started out annoyed. Or perhaps frustrated. Maybe even angry at the wrongdoer, whether that be the airport sponsor, the entity who manages the airport on behalf of the sponsor, or a competing FBO, new entrant, or other service organization. It gets under your skin, and it doesn’t go away. But does it amount to a grant assurance violation such that the airport’s federal funding is in jeopardy? Let’s find out.
Have You Read The Rules?
Sounds simple, right? Most folks think that they know the rules. Or maybe they’ve read one of the rules at some point in the past. Now is the time to be diligent and read everything that you can get your hands on about the subject.
Ask yourself whether you’ve looked at all applicable guidance material. Have you reviewed the appropriate statutes? Regulations? FAA Handbooks and Orders? Advisory Circulars? Grant assurances? Part 16 case decisions?
Google is an amazing and powerful tool for these purposes. Keep an organized notebook of what you find, whether electronic or in hard copy. Segregate the rules that you think are most applicable and that you believe are being violated. Read them again — carefully. This will narrow your focus, and provide discipline to your decision-making process.
Don’t Ignore State And Local Rules
While you may be more familiar with FAA rules, having spent much of your professional life working in and around aviation, don’t ignore state and local rules. Remember that rules such as airport minimum standards are typically codified within the body of regulations guiding the conduct of the airport sponsor, whether that airport sponsor is an authority, a local municipality, a county, or a state.
Be sure that you have the most up-to-date version of the minimum standards. Also be sure to read the airport rules and regulations beyond just the minimum standards to ensure that nothing else strikes you as improper when matching conduct against those rules. Are there any applicable statutes or regulations at a higher level within your state, such as at the county or state level?
Be sure that you know all the rules governing your airport and those who run it. There may also be generalized state laws and procedures that address when government entities act contrary to their own rules. While potentially applicable, this last set is more general in nature, will be more difficult to find, and is best left to your lawyers to vet once you’re past the aviation specific analysis.
Make A Chart And Gather Evidence
Make a chart of the rules (and all subparts) that you think may have been broken. Then post each piece of evidence that you currently have against the applicable rule or rules (evidence of harm is often applicable to more than one rule). Your chart will quickly display the holes in your case (literally) and where you need to gather more supporting evidence.
As part of this process, request all publicly available records as early as possible. Then send out follow-up requests periodically as circumstances dictate so that you obtain all evidence created since your last request. In addition to your becoming prepared, these activities will keep the airport and any opposing private parties mindful that their activities are being scrutinized.
Pilots Bill of Rights Public Law 112-153; FAA enforcement cases will change dramatically.