In the first three articles in this series, we discussed some of the more common grant assurances that are disputed between airport sponsors and tenants. Our fourth and fifth articles focused on preserving your own documents and evidence, as well as seeking out evidence from your adversaries. But there’s more. The next consideration is how best to employ your resources and evidence to answer the question: Do you proceed under 14 Code of Federal Regulations (C.F.R.) Part 13 (“Part 13”) or under 14 C.F.R. Part 16 (“Part 16”)?
Define the Differences
As a general matter, the primary distinctions between actions under Parts 13 and 16 are rooted in issues of formality, legal standing to bring a cause of action, and the potential for and type of recovery available to a complainant.
Part 13: The Less Formal Option
Part 13 is the less-formal option for filing a complaint with the FAA and, as a general matter, the only avenue available to those complainants who cannot satisfy the standing requirements for Part 16 (discussed below). Complaints may be made in writing, or even orally, pursuant to Subsection 13.1, to any FAA regional and/or district office. Typically, all such complaints are relayed to FAA regional staff for relatively informal investigation, as warranted.
This informal investigation will usually entail correspondence from the FAA investigator or specialist to the airport sponsor wherein a copy of the complaint is forwarded to the airport sponsor for review and response. Thereafter, the FAA personnel handling the dispute will review the responses from the airport sponsor and determine:
- Whether the dispute is within the jurisdiction of the FAA, and
- Whether the allegations in the complaint are supported by sufficient evidence to support further investigation.
If the FAA determines that neither of these conditions are satisfied with respect to any of the individual allegations in the complaint, those allegations will be dismissed without further action. The remaining allegations, if any, will continue to be investigated.
Following any additional investigation, the handling FAA regional office will issue an informal determination setting forth the region’s position on the allegations in the complaint. Of particular note, there is no deadline imposed under Part 13 for the issuance of an informal determination by the FAA.
Subsection 13.5 of Part 13 does contemplate the filing of formal complaints seeking “an appropriate order or other enforcement action” with the Office of the Chief Counsel, Enforcement Docket in Washington, D.C. In the event, however, that the complaint does not observe the formalities required under Subsection 13.5, the FAA will simply treat it as an informal report pursuant to Subsection 13.1. If the complaint does satisfy the formal requirements, the complaint will be docketed and mailed to the party against whom the complaint is levied. Thereafter, the respondent is afforded 20 days from receipt of the complaint to answer. Following receipt of respondent’s answer, the administrator determines whether there are reasonable grounds for investigating. If no such reasonable grounds exist, the administrator may simply dismiss the complaint without a hearing or further investigation.
However, if the administrator determines that reasonable grounds exist for further investigation, the matter may be pursued informally or a more formal order of investigation may be issued. Thereafter, if the additional investigation substantiates the allegations in the complaint, the administrator may issue a notice of proposed order or other enforcement action as appropriate.
While Part 13 does contemplate the potential for formal investigations, practical experience demonstrates a trend toward the less formal handling of such matters. To this end, the recommended approach in Part 13 matters is to submit a written Part 13 complaint with copies of any and all supporting documentation. Upon receipt of the complaint, the FAA will assign the matter internally for investigation.