### UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC

) 

### PRO-FLIGHT AVIATION, INC., ) Complainant ) )

**~** 

## ) ) 

### CITY OF RENTON, ) Respondent )

ORDER FAA Docket No. 16-15-03

On July 17,2015, counsel for Complainant, Pro-Flight Aviation, filed a motion for preliminary injunction to enjoin Respondent, City ofRenton, from evicting Complainant from 9 aircraft tie

-down spots it currently leases from Respondent. On August 7, 2015, Respondent filed an answer to the motion arguing that the FAA lacks authority under 14 CFR Part 16 to grant the reliefrequested and, alternatively, that Complainant has not proffered evidence sufficient tojustify such relief. 

### Background
On January 28,2015, Com plainant filed a Complaint with the FAA under the Rules of Practice for Federally-Assisted Airport Enforcement Proceedings (14 CFR Part 16). Complainant alleges Respondent violated Grant Assurances 5 (Preserving Rights and Powers), 22 (Economic Discrimination), 23 (Exclusive Rights), 24 (Fee and Rental Structure), and 29 (Airport Layout Plan). Complainant alleges Respondent unjustly discriminated against Complainant by awarding a lease oftwo airport parcels (760 and 770 parcels) to the Boeing Company (Boeing). Complainant is a full-service fixed based operator (FBO) at Renton Municipal Airport (RNT) and operates its business on property leased from Respondent (750 parcel). Since April 2013 , Complainant has leased from Respondent 9 aircraft tied own spaces, which it uses to park aircraft used for its flight school and aircraft rental businesses, on the 760 parcel. Parcel 760 had been leased by another FBO that ceased operations at RNT, and Complainant had expressed interest in leasing the entire parcel. In August 2013, Respondent leased parcels 760 and 770 to Boeing. Because Boeing did not have immediate need for the parcels, Respondent continued to lease the tie downs to Complainant and other parties and credited the rental income to Boeing. This arrangementwas to have lasted through March 3 1,201 5, but has now been extended to September 14, 2015. 1 Respondent alleges that Complainant currently is providing FBO services at RNT without a valid operating permit, in violation ofairport rules, because it failed to renew the permit that expired on July 31, 20 15. On July 17, 2015, Complainant filed this motion for preliminary injunction arguing that the imminent termination ofits tiedown leasejustifies the FAA enjoining that termination to maintain the status quo while it resolves the substantive issues ofthe Complaint. Respondent filed its response to the motion on August 7, 2015 , arguing that the Part 16 procedures do not contemplate extraordinary interim relief, and alternatively that Complainant has not met the standard for such relief. Legal Authority
As a threshold matter, Respondent argues that the remedy sought by Complainant does not exist under Part 16, and that there is no precedent for such extraordinary relief. Respondent also argues that ifthe FAA were to grant the requested relief, then Boeing's interests would be negatively affected, and Boeingwould not have an opportunity to intervene under Part 16 procedures.
Under 49 U.S.C. § 47122, the FAA may issue orders to carry out Subchapter I (Airport Improvement),§§ 47101-47142. This subchapter includes the grant assurances re quiring reasonable access andprohibiting unjust discrimination to aeronautical users. Under 49 U.S.C. 

### § 40113(a), the FAA has broad authority to "take action the

. .. Administrator

... considers necessary to carry out" Part A ofSubtitle VII (which includes§ 40103(e) prohibiting the granting ofexclusive rights) including the authority for "issuing orders." Under 14 CFR 

### § 16.109(a), the FAA may issue a proposed order ofcompliance, including a cease and desist order, in initial determinations. The FAA previously has exercised its authority to issue a cease and desist order as an interim measure to maintain the status quo. See, e.g., In the Matter of Compliance with Federal Obligations by the City of Santa Monica, California, FAA Docket No. 16-02-08, Interim Cease and Desist Order at 10 (Apr. 23, 2008). Such orders may be based on a preliminary finding ofgrant assurance violation prior to conclusion ofthe initial determination ofnoncompliance. !d. However, this extraordinary reliefis appropriate only inextraordinary circumstances. See id. Although the FAA has not previously issued a preliminary injunction, the type ofrelief requested by Complainant is akin to an FAA cease and desi st order to maintain the status quo. Accordingly, the FAA concludes that it has authority under 49 U.S.C. 

### §§ 401 l 3(a) and 47122 to issue such an order, and the FAA will construe Complainant's motion as such.

1 Respondent provided Complainant a notice to vacate on July 2, 2015, with an effective date ofAugust 31, 2015. That effective date has since been extended with Boeing's consentto September 14,201 5

.Respondent is partially correct with respect to Boeing's intervention

. Part 16 procedures permit int ervention by thirdparties only at the hearing stage. 14 CFR 

### § 16.207(a). However, ifthe FAA issued a cease and desist order against Respondent then Respondent would have opportunity for a hearing. 14 CFR 

### § 16.109(a). Discussion Complainant argues that it meets the criteria for preliminary relief(likelihood to succeed on the merits, likelihood ofsuffering irreparable harm, balance ofequit ies in the proponent's favor, and public interest). Complainant did not specifically allege how it was likely to succeed on the merits other than to refer to the pleadings already filed. Complainant alleges that the termination ofthe 760 parcel lease would force it to "clos[e) its flight school or sharply reduc[e

## Jthe services it offers to transientjet aircraft," and that this decision would be difficult or impossible to reverse because current customers would switch to other providers or airports. Complainant alleges its needs for the 760 parcel lease is greater because it is currently using the tiedowns, and Boeing would not need the 737 MAX parking spaces until the end of2015. Finally, Compla inant alleges that the public interest is better served through continuing general aviation aeronautical use at RNT as opposed to support ofaircraft manufacturing. Respondent argues that, considering the loss ofComplainant's RNT operating certificate, the claims ofirreparable harm cannot be traced to the termination ofthe tie down lease. Respondent also argues that Complainant's safety claims are misplaced because Complainant had safely conducted all ofits operations on the 750 parcel for 20 months pr ior to the month-to-month lease for the 760 parcel tie downs. Respondent also alleges that Complainant created the predicament it now is in by accepting a sublease from its sister company for insufficient ramp space and then rejecting other aircraft parking locations offered by RNT. Finally, Respondent argues that Complainant failed to provide any quantification ofthe impact oflosing the short-term tiedown lease, and tha t even if there were financial loss, such loss is compensable at law and therefore not irreparable. Respondent alleges that Complainant has not made a sufficient showing oflikelihood to succeed on the merits. Respondent alleges that factual and legal analysis in the briefs support ing the motion for summaryjudgment, which Complainant does not refute in its instant motion, is sufficientjustification for denying this motion. Respondent also alleges that ifthe FAA were to find Respondent in noncompliance with its grant assurances, this alone does not ensure that Complainant would obtain a lease for the 760 parcel. Respondent also argues that it does not have authority to extend the short-term leases for tiedowns on the 760 parcel after September 14 because the parcel already has been leased to Boeing. Respondent further argues that delaying Boeing's possession ofthe 760 parcel would cause the balance ofharms to shift in favor ofRespondent ifthis motion were granted. Finally, Respondent alleges the public interest is best served by denying the motion.The FAA has reviewed the facts and arguments presented and concludes that a cease and desist order is not appropriate under these circumstances. The FAA is most persuaded by the allegation that Respondent has offered other airport property for Complainant to use for aircraft tiedowns, an allegation to which Complainant has not responded despite being on notice since at least April17, 2015, when the motion for summaryjudgment was filed

. Accordingly, Complainant has failed to demonstrate irreparable harmjustifying extraordinary relief. The FAA further notes that the Part 16process is to determine compliance with an airport sponsor's grant assurances and not to resolve disputes between parties. Accordingly, Complainant's Motion is DENIED. This interim order is not a determination ofthe merits ofthe Complaint. This interim order is not a final agency action subject tojudicial review as provided in 14 CFR§ 16.247(b )(2). The FAA also will not entertain an appeal or motion for reconsideration under Part 16 procedures. The optional Reply is due September 3, 2015 , and the optional Rebuttal is due October 8, 2015. When the matter is fully briefed, the FAA will issue an initial determination on the merits.

Randall S. Fiertz Date Director, Office ofAirport Compliance and Management AnalysisCERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 1, 2015, I caused to be emailed and placed in the United States mail (first class, postage paid) or personally delivered a true copy ofthe foregoing ORDER addressed to:
Counsel for Complainant Benjamin 

### H. Klein LAW OFFICES OF PAUL A. LANGE, LLC 80 Ferry Boulevard Stratford, CT 06615 bhk@lopal.com
Counsel for Respondent
Zan etta L. Fontes Senior Assistant City Attorney CITY OF RENTON 1055 South Grady Way Renton, W A 98057 zfontes@rentonwa.gov
Hand-Delivered to : FAA Part 16 Airport Proceedings Docket (AGC-600) FAA Office ofAirport Compliance and Management Analysis (A CO-l00)

u ia Roberts Office ofAirport Compliance and Management Analysis