United States District Court

Northern District of Indiana

Hammond Division

GARY JET CENTER INC., )

 )

Plaintiff, )

 )

 v. ) Civil Action No. 2:13-CV-453 JVB

 )

GARY/CHICAGO INTERNATIONAL ) 

AIRPORT AUTHORITY, et al., )

 )

Defendants. )

)

EAST LAKE MANAGEMENT AND )

DEVELOPMENT CORPORATION and )

B. COLEMAN AVIATION LLC )

)

Intervenors )

OPINION AND ORDER

This matter is before the Court on two motion to dismiss the complaint of Plaintiff, Gary

Jet Center, Inc, the first (DE 25) filed by Defendants, Gary/Chicago International Airport

Authority (the “Airport Authority”), Cornell Collins, Marion J. Johnson, Silas Wilkerson, Ross

Amundson, and Nicole Thorn; and the second (DE 32) filed by Intervenors, East Lake

Management and Development Corporation and B. Coleman Aviation LLC. All Defendants and

Intervenors maintain that Plaintiff’s § 1983 should be dismissed pursuant to Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim and that its contract claim should be

dismissed under Rule 12(b)(1) because this Court lacks subject matter jurisdiction over it. 

A. Legal Standards

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss
claims over which the federal court lacks subject matter jurisdiction. Jurisdiction is the “power to

decide” and must be conferred upon a federal court. In re Chicago, Rock Island & Pac. R.R. Co.,

794 F.2d 1182, 1188 (7th Cir. 1986). When jurisdictional allegations are questioned, the plaintiff

has the burden of proving that the jurisdictional requirements have been met. Kontos v. United

States Dep’t of Labor, 826 F.2d 573, 576 (7th Cir. 1987). In reviewing a Rule 12(b)(1) motion to

dismiss, the Court may look beyond the complaint and review any extraneous evidence

submitted by the parties to determine whether subject matter jurisdiction exists. United Transp.

Union v. Gateway Western R.R. Co., 78 F.3d 1208, 1210 (7th Cir. 1996).

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim

is to test the sufficiency of the pleading, not to decide the merits of the case. See Gibson v. Chi.,

910 F.2d 1510, 1520 (7th Cir. 1990). Rule 8(a)(2) provides that a complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.” However,

“recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)).1

 As the Supreme Court has stated, “the tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.

Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Id. at 1940 (quoting Twombly, 550 U.S. at 570). A complaint

is facially plausible if a court can reasonably infer from factual content in the pleading that the

defendant is liable for the alleged wrongdoing. Id. (citing Twombly, 550 U.S. at 570). The

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In Twombly the Supreme Court “retooled federal pleading standards, retiring the oft-quoted [Conley v. Gibson, 355

U.S. 42, 47 (1957)] formulation that a pleading ‘should not be dismissed for failure to state a claim unless it appears

beyond doubt that the [pleader] can prove no set of facts in support of his claim which would entitle him to relief.’”

Killingsworth v HSBC Bank Nevada, N.A., 507 F.3d 614, 618, (7th Cir. 2007).

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Seventh Circuit has synthesized the standard into three requirements. See Brooks v. Ross, 578

F.3d 574, 581 (7th Cir. 2009). “First, a plaintiff must provide notice to defendants of her claims.

Second, courts must accept a plaintiff’s factual allegations as true, but some factual allegations

will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the

plaintiff’s claim. Third, in considering the plaintiff’s factual allegations, courts should not accept

as adequate abstract recitations of the elements of a cause of action or conclusory legal

statements.” Id.

B. Plaintiff’s Complaint

 Plaintiff, Gary Jet Center Inc., is suing the Airport Authority and five individuals who

comprised the Airport Authority’s board when the actions complained of occurred (the “Old

Board”). Plaintiff is a “fixed base operator” (“FBO”) at the Gary/Chicago International Airport. 

An FBO operates like a service station for aircraft owners, providing services such as fueling,

hangar space, and aircraft maintenance. The Airport Authority is the municipal body that

controls the Airport. 

The Airport Authority has adopted standards for FBOs operating at the Airport (the

“FBO Regulations”), which classify FBOs according to the breadth of services they provide. 

The classifications range from an FBO-F, which provides only repairs to avionics, to an FBO-A,

which provides everything from aircraft fueling and repairs to charter services, flight instruction,

and aircraft rentals. Under the FBO Regulations, only an FBO-A may provide fueling services. 

However, the Airport Authority, through the Old Board, voted to exempt Intervenor East Lake

Management and Development Corporation from the FBO Regulations applicable to FBO-As,

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allowing it to sell fuel at the Airport without holding it to other requirements of the FBO

Regulations applicable to FBO-As. For example, although the FBO Regulations require that an

FBO-A must provide a building that is at least 10,000 square feet in size and a minimum of

35,000 gallons of above-ground fuel storage, East Lake is not operating out of a building of that

size and has no above-ground fuel storage. According to Plaintiff, the Airport Authority has also

been relieved of FBO Regulation requirements that it collect fuel flowage fees, landing fees, and

parking fees from its customers. While Plaintiff is required to pay supplemental rent based on the

fees it collects, East Lake is not. 

Plaintiff maintains that this differential treatment, for which the Airport Authority had no

legitimate justification and no rational basis, gives East Lake an unfair and illegal economic

advantage over it and is causing it economic harm. Plaintiff asserts that Defendants have thus

violated its right to equal protection of the laws as guaranteed by the Fourteenth Amendment.

Plaintiff also asserts a breach of contract claim. In Article II, paragraph A of its lease

with the Airport Authority, the Airport Authority covenants that it will operate the Airport

“consistent with and pursuant to the Sponsor’s Assurance” given by the Airport Authority to the

United States under the Federal Airport Act. (Compl. Ex. C, DE 1-2 at 4.) Pursuant to the

Airport and Airway Improvement Act of 1982, 49 U.S.C. § 47101, et seq. (AAIA), as a

condition of receiving federal funds for airport improvements, the Federal Aviation

Administration (FAA) requires airport sponsors such as the Airport Authority to make written

assurances that the sponsor will make the airport available for public use without unjust

discrimination and will subject FBOs who use the airport in a similar manner to the same

charges. Plaintiff alleges that the Airport Authority has breached the lease by failing to comply

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with several provisions of the Sponsor’s Assurances, including Assurance 22(c), which provides

that FBOs at the airport “shall be subject to the same rates, fees, rentals, and other charges as are

uniformly applicable to all other fixed-base operators making the same or similar uses of such

airport and utilizing the same or similar facilities.” (Compl. Ex. A, DE 1-1 at 10.)

C. Plaintiff’s Equal Protection Claim

Plaintiff does not allege that it is a member of any protected group. Therefore it is

asserting an equal protection “class of one” claim. See Charleston v. Univ. of Ill. at Chi., 741

F.3d 769, 775. The parties do not agree, and the Seventh Circuit has not settled on a pleading

standard for such claims. See Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir.

2012) (en banc). In Del Marcelle, five judges voted to affirm the district court’s judgment

dismissing a complaint for failure to state an equal protection class of one claim and five voted

to remand for further proceedings in three separate opinions. The tie vote resulted in affirmance

of the dismissal because a majority is required to reverse a judgment. Id. at 888. Neither the

lead opinion nor the dissent has the force of controlling precedent. Id. at 906 (Wood, J.,

dissenting). 

The four judges who joined in the lead opinion would require a plaintiff to show he was

“the victim of discrimination intentionally visited on him by state actors who knew or should

have known that they had no justification, based on their public duties, for singling him out for

unfavorable treatment—who acted in other words for personal reasons, with discriminatory

intent and effect.” Id. at 889. 

According to the five dissenting judges, in order to state a claim for class of one

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discrimination a plaintiff must include in its complaint plausible allegations that “(1) plaintiff

was the victim of intentional discrimination, (2) at the hands of a state actor, (3) the state actor

lacked a rational basis for so singling out the plaintiff, and (4) the plaintiff has been injured by

the intentionally discriminatory treatment.” Id. at 913. The complaint must allege facts—not

bare legal conclusions—that support these points. Id.

The Supreme Court, in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), held that a

complaint alleging that the Village intentionally demanded a thirty-three-foot easement from

Olech as a condition of connecting her to the municipal water supply, where the Village required

only a fifteen-foot easement from others similarly situated, and that the demand was irrational

and wholly arbitrary, was sufficient to state a claim under its traditional equal protection

analysis. Id. at 565 (“Our cases have recognized successful equal protection claims brought by a

‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from

others similarly situated and that there is no rational basis for the difference in treatment.” Id. at

564.) The court did not require an allegation of subjective ill will. Id. at 565. 

In Charleston, the Seventh Circuit applied the standard advanced by the Del Marcelle

dissenters, calling it the least demanding standard that could apply. Charleston, 741 F.3d at

775. This Court will do likewise. In this Court’s view that standard fits more closely with Olech

than the standard the subscribers to the lead opinion in Del Marcelle would require. 

The complaint sufficiently alleges intentional discrimination in favor of the

Intervenors—the disparate treatment in this case was not a mistake—and that they are similarly

situated to Plaintiff, in that they are performing the same services at the Airport as Plaintiff. 

Thus the question before the Court is whether Plaintiff has pleaded sufficient facts to make out a

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plausible claim that Defendants’ more favorable treatment of the Intervenors lacks a rational

basis. The Court holds that it has: 

The complaint must . . . indicate how the plaintiff proposes to shoulder the burden

of demonstrating the lack of a rational basis . . . In some instances, well illustrated

by Olech, the state actor may inexplicably have failed to follow . . . a clear

standard against which departures . . . could be readily assessed. Plaintiff need

only plead the existence of such a standard and the state actor’s failure to meet

that standard in order to satisfy Twombly and Iqbal and go forward.

Del Marcelle, 680 F.3d at 914 (Wood, J., dissenting) (internal quotation and citation omitted).

Plaintiff has alleged that Defendants have failed to follow a clear standard—the FBO

Regulations—to favor the Intervenors, who are providing the same services it is performing at

the Airport. This satisfies the pleading standard suggested by the dissent in Del Marcelle. 

D. Subject Matter Jurisdiction over Contract Claim

Defendants and Intervenors claim this Court lacks subject matter jurisdiction over

Plaintiff’s contract claim because it centers around whether the Airport Authority breached its

assurances to the FAA. They maintain that Plaintiff is attempting to assert a private right of

action to enforce 49 U.S.C. § 47107 where none exists. According to Defendants and

Intervenors, Plaintiff must raise its claims with the FAA instead of in federal court. 

The Sponsors Assurances Defendants are accused of violating originate in 49 U.S.C. §

47107, which provides: 

(a) General written assurances.--The Secretary of Transportation may approve a

project grant application under this subchapter for an airport development project

only if the Secretary receives written assurances, satisfactory to the Secretary

that–

(1) the airport will be available for public use on reasonable conditions and

without unjust discrimination; . . . and

(5) fixed-base operators similarly using the airport will be subject to the same

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charges. 

 

The Court has no subject matter jurisdiction, they insist, because the FAA has exclusive

responsibility to determine whether the Airport Authority has complied with its Sponsors

Assurances. 

Plaintiff insists that it is not asking this Court to exercise the FAA’s enforcement

authority, but simply to enforce the promise the Airport Authority made to it in the lease.

According to Intervenors, a mere lease provision cannot create a cause of action to enforce

federal regulations. 

Absent the lease provision, Plaintiff could not bring an action in court seeking a

determination that the Airport Authority is violating its Sponsor Assurances. Under regulations

promulgated to enforce § 47107, an entity doing business with an airport receiving AAIA grants

may institute proceedings against the airport by filing a complaint with the FAA. Pursuant to 14

C.F.R. Part 16, § 16.1, the provisions of Part 16 govern all FAA proceedings involving federally

assisted airports brought under the authority of the assurances contained in grant agreements

issued under the AAIA. Section 16.23 provides that a person directly and substantially affected

by any alleged noncompliance may file a complaint with the FAA. Any party to the FAA action

may seek judicial review of the FAA’s decision in a United States court of appeals. See 14

C.F.R. § 16.247. 

Although the Court has found no case from the Seventh Circuit Court of Appeals on the

issue, other circuits courts have uniformly held there is no private right of action to enforce grant

assurances made under the AAIA. See, e.g., Northwest Airliners, Inc. v. Kent County, 995 F.2d

1054, 1058 (6th Cir. 1992) (holding there is no private right of action under 49 U.C. S. § 2210,

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the previous codification of § 47107); Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108

F.3d 909, 915 (8th Cir. 1997). 

However, the fact that the FAA has an administrative procedure for determining whether

an airport sponsor has violated its Sponsors Assurances does not deprive this Court of

jurisdiction to hear Plaintiff’s breach of lease claim. The Airport Authority agreed, in its lease

with Plaintiff, that it would operate the Airport in compliance with the Sponsor’s Assurances it

gave to the FAA. By including this term in the lease, the parties made a breach of the

Assurances a breach of the lease. Plaintiff is attempting to enforce a promise the Airport

Authority made not just to the FAA, but also specifically to it. 

E. Primary Jurisdiction

Intervenors also argue that this Court should decline to hear Plaintiff’s complaint at this

time and defer to the primary jurisdiction of the FAA. As the Seventh Circuit explains in

Bradford School Bus Transit, Inc. v Chicago Transit Authority, 537 F.2d 943, 949 (7th Cir.

1976):

[t]he doctrine of primary jurisdiction is concerned with promoting proper

relationships between courts and administrative agencies. It applies where a

claim is originally cognizable in the courts whenever enforcement of that claim

requires resolution of issues, which under a regulatory scheme, have been placed

within the special competence of an administrative body. In such cases the

judicial process is suspended pending referral of such issues to the administrative

body for its views. 

In deciding whether to invoke primary jurisdiction a court should consider the desirable

uniformity which would result if a specialized agency passed on the administrative questions and

the expert and specialized knowledge of the agency involved. Id.

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This is not an appropriate case for invoking the primary jurisdiction of the FAA. The

FAA makes determinations as to whether an airport sponsor is currently in compliance with its

federal obligations and will dismiss allegations of violations if it determines that an airport has

successfully cured them during the pendency of a Part 16 proceeding. See Platinum Aviation v.

Bloomington-Normal Airport Auth., FAA 16-06-09, 2007 WL 4854321 at *5 (Nov. 28, 2007). 

However, in Plaintiff’s lease, the Airport Authority agrees that “at all times during the term of

the lease” it will operate the airport pursuant to the Sponsor’s Assurances. (DE 1-2 at 4.) Thus

the FAA could rule that the Airport is in compliance with its Sponsors Assurances at the time of

its ruling without deciding whether it had been so at all times relevant to Plaintiff’s complaint. 

Such a future ruling would not assist the Court with the determination of whether the Airport

Authority is now in breach of its lease with Plaintiff. Accordingly, the Court will not defer to the

FAA before deciding Plaintiff’s breach of contract claim. 

 

F. Conclusion

For the foregoing reasons Defendants’ motion to dismiss (DE 25) and Intervenors’

motion to dismiss (DE 32) are DENIED. Plaintiff’s motion for a hearing (DE 39) is DENIED.

 SO ORDERED on April 2, 2014.

 s/ Joseph S. Van Bokkelen 

Joseph S. Van Bokkelen

United States District Judge

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