September-October_2021 - 20

LEGAL MATTERS
AUTHOR Paul Grocki
CAN YOU BRING A PART 16 COMPLAINT AFTER AN
Airport Sponsor Voluntarily Corrects
A GRANT ASSURANCE VIOLATION?
AIRPORT TENANTS can use a Part 16 complaint to hold
federally funded Airport Sponsors (as defined below)
accountable when they violate their obligations under
the federal grant assurances ( " Grant Assurances " ).
Generally, Part 16 complaints are limited to where an
Airport Sponsor is engaged in a current and ongoing
violation of its Grant Assurance obligations.
If there is not a current/ongoing
violation of the Grant Assurances, then a
tenant's Part 16 complaint becomes moot.
Mootness is legal jargon for saying that
because the Airport Sponsor's improper
conduct stopped: (i) the tenant is no
longer injured; (ii) a Part 16 complaint
cannot provide a remedy; and (iii) the
complaint must be dismissed.
In light of this limitation, what
happens if an Airport Sponsor stops its
wrongful conduct while a tenant's Part
16 complaint is pending, but the tenant
justifiably fears that the wrongful
conduct will resume after the complaint
is dismissed? Or, what happens if an
Airport Sponsor commits a temporary
Grant Assurance violation that causes a
tenant meaningful harm, but ceases the
violation before the tenant can bring a
Part 16 complaint? Is an airport tenant
left without any recourse due to the
ABOUT THE AUTHOR
PAUL GROCKI
Paul Grocki is an attorney with the Law
Offices of Paul A. Lange, LLC with offices
in New York and Connecticut. He focuses
his practice primarily on litigation, insurance,
and aircraft transactional matters.
Paul also represents aircraft owners and
fixed based operators ( " FBOs " ) in connection
with negotiation of management,
charter agreements, various types of
ground leases, and airport disputes.
mootness hurdle?
Not necessarily. There are two
relevant exceptions that may allow
airport tenants to clear the mootness
hurdle and proceed with a Part 16
complaint: (1) voluntary cessation; and (2)
wrongful conduct capable of repetition,
yet evading review. This article examines
those exceptions.
FAA Grant Assurances
Airport owners, sponsors, or other entities
( " Airport Sponsors " ) that receive federal
funding from the Federal Aviation
Administration ( " FAA " ) and/or receive
title to federal property for airport purposes
must agree to be bound by the FAA's
Grant Assurances. A copy of the Grant
Assurances can be found at: https://www.
faa.gov/airports/aip/grant_assurances/
media/airport-sponsor-assurances-aip.
pdf. Moreover, FAA Order 5190.6B,
the FAA Airport Compliance Manual
discusses the obligations set forth in the
Grant Assurances, addresses the application
of the Grant Assurances in the operation
of public-use airports, and facilitates
interpretation of the Grant Assurances
by FAA personnel. For more information
about Grant Assurances and how they
impact our nation's airports, see " What
Are Federal Grant Assurances and How
Do They Impact our Nation's Airports? "
Airport Business July/August 2021.
20 \ AIRPORTBUSINESS / SEPTEMBER/OCTOBER 2021
Part 16 Complaints
If an Airport Sponsor violates its obligations
under the Grant Assurances, an airport
tenant that is harmed as a result can file a
formal complaint with the FAA pursuant to
Part 16 of the Federal Aviation Regulations.
Outlining the numerous procedural and
substantive requirements for filing a Part
16 complaint exceeds the scope of this
article. That being said, however, two
necessary prerequisites to filing a Part 16
complaint are: (1) that the airport tenant
be " directly and substantially affected "
by the Airport Sponsor's noncompliance;
and (2) the airport tenant has engaged in
good faith efforts to resolve the dispute
informally. If a Part 16 complaint is
successful, remedies ordered by the FAA
could include: (1) a cease-and-desist order;
(2) an order terminating eligibility for grant
funds; (3) an order directing the refund of
fees unlawfully collected; and/or (4) an
order directing the Airport Sponsor to pay
back grant funds.
The FAA Recognizes
The Mootness Hurdle
The mootness hurdle is well established in
FAA's administrative decisions. The FAA
has held that " in addressing allegations
of noncompliance, the FAA will make a
determination as to whether an airport
sponsor is currently in compliance with
the applicable federal obligations, " and
" not whether an airport was in violation
three years ago or might be in the future. "
Jimsair Aviation Servs., Inc., Complainant,
Final Agency Decision and Order No.
16-06-08, 2007 WL 2399862, at *6,
*10 (Aug. 9, 2007); see also Wilson Air
Ctr., LLC Complainant, Final Agency
Decision and Order No. 16-99-10, 2001
WL 1085348, at *4 (Aug. 30, 2001). The
FAA has also held that it " will consider
https://www.faa.gov/airports/aip/grant_assurances/ http://www.faa.gov/airports/aip/grant_assurances/
September-October_2021

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