The legislative history of ANCA, though sparse, provides further evidence of congressional intent on this issue. ANCA was included as Subtitle D to Title IX of the Omnibus Budget Reconciliation Act of 1990. [101] The provisions of ANCA governing review of noise and access restrictions originated in the Senate, which amended them onto the House bill, H.R. 5835, on October 18, 1990. [102] Under the House bill as amended by the Senate, FAA approval was required both for restrictions on Stage 3 aircraft and for restrictions on Stage 2 aircraft weighing less than 75,000 pounds. [103] Section 3202(h) of the bill contained a “savings” clause providing that “[e]xcept to the extent required by the application of the provisions of this section, nothing in this Act shall be deemed to eliminate or supersede existing law with respect to restrictions by local authorities on operation of Stage 2 aircraft.” [104] The exception in this savings clause could only have applied to the provision in section 3202 of H.R. 5835 that would have required FAA approval prior to implementation of restrictions on Stage 2 aircraft weighing less than 75,000 pounds, because application of this provision effectively would have superseded any other subsequent FAA review of such restrictions under existing law, including review under the grant assurance requirements in 49 USC 47107(a). Conversely, the savings clause made clear that Congress did not intend to limit the application of existing law to restrictions on other Stage 2 aircraft (i.e., those weighing 75,000 pounds or more). The Conference Committee subsequently removed the requirement for FAA approval of restrictions on lighter Stage 2 aircraft, and directed the Secretary of Transportation to determine by study how to handle such restrictions for purposes of ANCA. [105] Because this left only restrictions on Stage 3 aircraft subject to FAA approval under ANCA, the “savings” provision in section 9304(h) was revised accordingly. [106]

In sum, the legislative history of ANCA shows that Congress intended to preserve all preexisting law relating to airport noise or access restrictions for which ANCA does not require FAA approval. This makes perfect sense because the conditions for such approval incorporate existing law, including the grant assurance requirements in 49 USC 47107(a). [107] Since the FAA, under 49 U.S.C. § 47525, decided to treat restrictions on Stage 2 aircraft weighing not more than 75,000 pounds the same as restrictions on heavier Stage 2 aircraft, [108] all preexisting law relating to such restrictions continues to apply.

In order for the provisions of ANCA relating to Stage 2 restrictions to supersede the otherwise applicable grant assurance requirements in 49 U.S.C. § 47107(a), as the NAA asserts, the former statute would have to be read as repealing the latter by implication. The U.S. Supreme Court has established a “cardinal rule . . . that repeals by implication are not favored.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 189 (1978). The Supreme Court has held, “in no uncertain terms,” that legislative intent to repeal must be “clear and manifest.” Id. “In practical terms, this ‘cardinal rule’ means that ‘[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.’” Id. at 190. Indeed, it is a long-standing principle of statutory construction that “[w]hen there are two acts upon the same subject, the rule is to give effect to both if possible . . . .” United States v. Borden Co., 308 U.S. 188, 198 (1939).

Nothing in ANCA or its legislative history demonstrates “clear and manifest” legislative intent to repeal or limit the application of any of the statutory grant assurances with respect to noise or access restrictions on Stage 2 aircraft. To the contrary, as discussed above, the language and legislative history of ANCA make clear that Congress intended to preserve all preexisting law, including the applicable grant assurance requirements in 49 U.S.C. § 47107(a), relating to noise and access restrictions on Stage 2 aircraft.

Nor is there anything in the provisions of ANCA relating to noise and access restrictions on Stage 2 aircraft that is irreconcilable with the statutory grant assurance requirements in section 47107(a). These statutes can be harmonized by interpreting ANCA to establish the procedural steps necessary for implementing a restriction on operations by Stage 2 aircraft, while leaving the substantive requirements under the grants in place. Indeed, the procedural requirements of ANCA relating to Stage 2 restrictions complement the substantive obligations under the grant assurances in that the analysis and public comments generated during the ANCA process provide valuable information that can be considered by the FAA in determining grant compliance. [109] This interpretation is consistent with the FAA's pre-ANCA policy of encouraging airport proprietors to conduct studies under, or like those under, 14 C.F.R. Part 150 to support airport use restrictions. [110]

2. Implications Of The NAA’s Argument

As further evidence that Congress did not intend ANCA to supersede existing Federal review of Stage 2 access restrictions under the grant assurances in section 47107(a), we note that it would be nonsensical to conclude that Congress or the FAA intended to make it more difficult to restrict access by non-Stage, Stage 1, and Stage 3 aircraft than it would be to restrict Stage 2 aircraft. Moreover, the NAA’s argument that Congress eliminated Federal review of Stage 2 restrictions, together with the NAA’s argument in NBAA v. NAA that restrictions on Stage 2 aircraft are not preempted and cannot have an undue burden on interstate or foreign commerce, [111] would give airport proprietors unfettered discretion to adopt unreasonable or unjustly discriminatory restrictions on operations of Stage 2 aircraft under 75,000 pounds.

There is no support whatsoever for the argument that Congress intended to give airport sponsors limitless authority to impose restrictions on operations by Stage 2 aircraft that are unreasonable, unjustly discriminatory, or impose an undue burden on interstate or foreign commerce, without regard to the effect on the national aviation system, the public interest, or the federal investment in the restricted facilities. Furthermore, such an argument would be inconsistent with the FAA’s rationale in deciding that the Stage 2 requirements of ANCA should apply to Stage 2 aircraft weighing less than 75,000 pounds. [112] In making this determination, the FAA considered, among other options: (1) excluding restrictions on these lighter Stage 2 aircraft from 14 C.F.R. Part 161; and (2) subjecting these restrictions to the same requirements as restrictions on Stage 3 aircraft. Noting that “[e]xclusion from the regulatory protections would have the effect of placing [Stage 2 aircraft] in the same position as Stage 1 aircraft,” the FAA concluded that it would be inappropriate to “give aircraft of less than 75,000 pounds less protection than larger aircraft against local restrictions.” [113] Thus, the FAA clearly understood that making ANCA applicable to restrictions on lighter Stage 2 aircraft would provide operators of these aircraft more protection than operators of Stage 1 aircraft, which were not subject to ANCA but were subject to other Federal law, including grant assurance requirements under 49 U.S.C. § 47107(a). Under the NAA’s position, restrictions on lighter Stage 2 aircraft would be exempt from Federal requirements relating to reasonableness, unjust discrimination, and undue burdens on interstate and foreign commerce, which would be inconsistent with the FAA’s reasoning in implementing the requirements of 49 U.S.C. § 47525.

Under the NAA’s position, the Stage 2 requirements in ANCA would also supersede 49 U.S.C. § 41713(b) to the extent that this provision is applicable to restrictions on operations of Stage 2 aircraft weighing not more than 75,000 pounds. Section 41713(b) generally preempts States and their political subdivisions from implementing requirements related to prices, routes, or services of air carriers that may provide air transportation. Congress provided an exception, however, for airport operators “carrying out [their] proprietary powers and rights.” [114] This exception to preemption would be superseded under the NAA’s interpretation of ANCA, since Stage 2 restrictions would not be preempted in the first place. There is no evidence in ANCA or its legislative history that Congress intended such an implied repeal of Section 41713(b). [115]

3. The FAA’s Reservation Of Issues Relating To Grant Compliance In Its Determination Regarding The NAA’s Compliance With Part 161

During the process of reviewing the NAA’s compliance with Part 161, the FAA identified issues of concern relating to the lawfulness of the Stage 2 ban under the NAA’s grant assurances and repeatedly reminded the NAA that compliance with Part 161 would not assure compliance with the grant assurances. [116] Although the FAA urged the NAA to address the FAA’s compliance concerns in conjunction with the conduct of its Part 161 Supplemental Analysis, [117] the NAA failed to do so. Accordingly, the FAA did not make any judgment as to the reasonableness of the NAA’s decision to implement the Stage 2 ban when it determined that NAA’s Part 161 Supplemental Analysis “responds to the Part 161 consultation, notice and analysis requirements of Subpart C of that part.” [118] Indeed, the FAA letter conveying the Part 161 determination contained a clear proviso on the FAA’s continuing concern with the reasonableness of the ban under the grant assurances. In the letter, for example, the FAA specifically advised the NAA that the ANCA requirements were “largely procedural” and that compliance with provisions of ANCA and Part 161 does not assure the NAA that the proposed Stage 2 ban complies with other Federal law. [119]

B. Effect Of National Business Aviation Association (NBAA) v. City of Naples Airport Authority, 162 F.Supp.2d 1343 (M.D. Fla. 2001)

In its Reply to the FAA’s Notice of Investigation, the NAA argues that because “the FAA is subject to the doctrines of res judicata, collateral estoppel, issue preclusion, and comity,” the agency “is precluded from addressing most or all of the issues raised in the Notice of Investigation” as a result of National Business Aircraft Association v. City of Naples Airport Authority, 162 F.Supp.2d 1343 (M.D. Fla. 2001). In this case, the National Business Aviation Association (NBAA) alleged that the NAA’s efforts to ban Stage 2 aircraft from operating at the Naples Airport violated the Commerce Clause and the Supremacy Clause of the United States Constitution. The court concluded that NBAA failed to raise a genuine issue of material fact as to the reasonableness or nondiscriminatory nature of the NAA’s Stage 2 ban. It therefore provided summary judgment to the NAA. The FAA was not a party to this case. The NAA’s assertion, however, is fundamentally at odds with the underlying premises of full faith and credit, res judicata, and collateral estoppel: FAA cannot be bound by a judgment that was entered in litigation to which it was not a party.

In two recent Federal cases, Arapahoe County Public Airport Authority v. FAA, 242 F.3d 1213 (10th Cir. 2001), and American Airlines v. City of Dallas, 202 F.3d 788 (5 th Cir. 2000), an airport sponsor or owner argued that the United States Department of Transportation (DOT) or FAA was barred from carrying out its duties to administer the Federal aviation laws because of pending state court cases or an earlier state court decision finding that the airport's conduct was lawful. In both cases, the courts of appeals held that the pending or prior state court litigation did not bar the Federal agency from conducting its own proceeding and determining whether an airport was complying with its obligations under Federal law.

In Arapahoe County, the Tenth Circuit noted:

As to the potential impact of the Colorado Supreme Court's ruling in Arapahoe County Public Airport Authority v. Centennial Express Airlines on federal regulation of the airport grant program, we perceive a direct and significant conflict inasmuch as this and similar state court rulings, if deemed preclusive, would frustrate the FAA's ability to discharge its statutory duty to interpret and implement federal aviation statutes governing the enforcement of grant assurances. See 49 U.S.C. 47122. If given preclusive effect, state court rulings favoring local airport authorities in actions tangentially involving federal grant assurances would further lead to inconsistent enforcement of the federally mandated assurances, potentially jeopardizing the efficiency and equality of access to our Nation's air transportation system. For these reasons, we hold the strong policy of federal supremacy in the field of aviation prevails over full faith and credit principles in this case. The Colorado Supreme Court's decision in Arapahoe County Public Airport Authority v. Centennial Express Airlines therefore has no bearing on the FAA decision before us.

242 F.3d at 1221.

While the court case at issue here, NBAA v. City of Naples Airport Authority, is a Federal district court decision, the same result is applicable. The FAA is not precluded from adjudicating issues raised in its NOI.

As the exclusive Federal aviation agency, the FAA is charged with significant national aviation responsibilities to carry out its obligations to enforce the Federal statutes governing aviation and airport operations. The FAA has substantial interests in areas such as regulating air commerce in a way that best promotes safety and fulfills national defense requirements, controlling the use of the navigable airspace, and preventing artificial restrictions on airport capacity to ensure safety and efficiency of flight operations. In fact, Congress has granted the FAA an independent and unqualified right to “take action to carry out this subchapter [49 U.S.C. §§ 47101-47137], including conducting investigations … and issuing orders.” 49 U.S.C. §47122. See also, Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355 (1994) (“The Secretary of Transportation is charged with administering the federal aviation laws ….”). In fact, as discussed below, there is no private right of action under the AAIA; only the FAA may enforce the grant assurances and it has a statutory responsibility to do so. See also Arapahoe County Public Airport Authority v. FAA, 242 F.3d 1213, 1220 (10 th Cir. 2001) (noting “[t]he FAA's interest in fulfilling its statutory responsibility to ensure airport compliance with federal aviation laws and grant assurances, and to protect the public interest”), and American Airlines v. City of Dallas, 202 F.3d 788 (5 th Cir. 2000). See also Massport, 883 F.2d at 169 (“In other words, in insuring compliance with [49 U.S.C. 47107, the statutory grant assurances], it is up to the Secretary to decide what is necessary and satisfactory.”). The FAA is neither required by princ iples of res judicata (i.e., “claim preclusion”), collateral estoppel (i.e., “issue preclusion”), nor comity to forgo its adjudication of the issues raised in the NOI including whether the NAA has a proprietary interest in reducing noise from aircraft using the airport and whether the NAA’s ban is consistent with its various statutory and contractual obligations.

The preclusive effects of former adjudication are referred to collectively by most commentators as the doctrine of "res judicata." Under res judicata, a "full and fair opportunity to litigate protects [a party's] adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. U.S., 440 U.S.147 (1979). Res judicata consists of two preclusion concepts: "issue preclusion" and "claim preclusion." Pelletier v. Zweifel, 921 F.2d 1465 (11 th Cir. 1991), see also 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402 (1981).

1. Claim Preclusion Generally

Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. New Hampshire v. Maine, 532 U.S. 742, 748 (2001). When the term “res judicata” is used in a narrow sense, so as to exclude issue preclusion or collateral estoppel, “res judicata” becomes virtually synonymous with “claim preclusion.” Id. See also, Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n. 1, 104 S. Ct. 892, 894 n. 1, 79 L. Ed. 2d 56 (1984).

Under Eleventh Circuit precedent, a claim is barred only if the parties, or those in privity with them, are the same, and if the same cause of action is involved in both. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11 th Cir. 1999). See also Trustmark Insurance Co. v. ESLU, Inc., 299 F.3d 1265, 1269-1270 (11 th Cir. 2002).

The doctrine of res judicata/claim preclusion has no application here because not all of the above requirements are met: the FAA was neither a party in NBAA (which the NAA acknowledges) nor was the FAA in privity with any party or parties in NBAA. As a result, the same cause of action is not present in NBAA and FAA’s NOI.

a. Claim Preclusion -- Privity Requirement

Concerning privity, the FAA was not in privity to any party to the litigation. To identify the nexus necessary between two parties to justify finding them in privity, several factors are relevant. Privity may be found where a non-party substantially controls, or is represented by, a party to the action. Montana v. United States, 440 U.S.147, 154 (1979); United States v. Perchitti, 955 F.2d 674, 676 (11 th Cir. 1992). Another formulation requires that the party estopped must have been “… so closely related to the interest of the party to be fairly considered to have had his day in court.” Perchitti at 676. Still another derivative is that there must be a “substantial identity” of the parties such that the party to the action was the virtual representative of the party estopped. Id.

First, the FAA did not control NBAA’s litigation nor did NBAA represent the FAA’s interests. For example, the FAA neither requested nor required NBAA to file suit against the NAA. In addition, FAA neither reviewed nor approved the complaint or compensated NBAA in any way for initiating the litigation. Cf., Montana v. U.S., 440 U.S. 147 (1979) (Federal Government estopped from relitigating in federal court the constitutionality of Montana's gross receipts tax on contractors of public construction firms where that issue had previously been litigated in state court by an individual contractor whose litigation had been totally financed and controlled by the Federal Government. U.S. required suit to be brought, reviewed and approved complaint, paid attorneys’ fees and costs, and directed appeal). Nor does the FAA have any legal or special relationship with NBAA. Cf., Citibank, N.A. v. Data Lease Financial Corporation, 904 F.2d 1498, 1502-1503 (11 th Cir. 1990) (finding of privity resulted from one party being related to another through vicarious liability/respondeat superior). Moreover, NBAA has no legal authority to represent the FAA’s interests whether in litigation or not. Nor did NBAA have any obligation to safeguard the FAA’s interests in its litigation. Antrim Mining, Inc. v. Davis, 775 F. Supp. 165, 169 (M.D. Pa. 1991), citing Moldovan v. Great Atlantic & Pacific Tea Co., 790 F.2d 894 (3d Cir. 1986).

Second, the FAA’s interests are not “so closely related” to the interests of NBAA to be fairly considered to have “had its day in court.” Neither does there exist a “substantial identity” between the FAA and NBAA such that NBAA served as the “virtual representative of the FAA. C.f., In Re Airlift International, Inc. v United States, 97 B.R. 664 (S.D. Fla. 1989) (in order to find privity between PBGC and IRS, court relied upon determination that these agencies were “related governmental agencies” (i.e., the “Secretary of the Treasury, who is responsible for administering and enforcing the Internal Revenue Code, sits on the Board governing the PBGC.”)).

As explained above, the FAA is the exclusive Federal agency charged with significant national aviation responsibilities and has substantial interests in regulating air commerce in a way that best promotes safety and fulfills national defense requirements, controlling the use of the navigable airspace, and preventing artificial restrictions on airport capacity to ensure safety and efficiency of flight operations.

When FAA initiates a formal investigation, takes administrative enforcement action, or sues for statutory violations, the agency seeks not only to remedy the immediate issue at hand, but must also take into account many other factors such as its Federal responsibilities to:

• Uphold its statutory obligations, such as protecting the navigable airspace and enforcing the grant assurances consistent with the will of Congress,

• Uphold important Federal policies that may reach beyond a certain limited segment of aviation,

• Take into account issues relating to the National Airspace System,

• Guarantee uniform compliance with the AAIA,

• Protect the integrity of the Federal airport grant program and to ensure grant monies are spent in accordance with Federal requirements, assess civil penalties when called for.

Based upon the these wide-ranging differences between FAA and NBAA, and the fact that the FAA has significant “national public interests separate and distinct” from those of NBAA, it is self evident that FAA did not “have its day in court” when NBAA entered into litigation with the NAA over the Stage 2 ban. Herman v. South Carolina National Bank, 140 F.3d 1413, 1424 (11 th Cir. 1998) (Res judicata did not apply because the Secretary of Labor was not a party to the first case and has national public interests separate and distinct from those of the first case’s private litigants); American Airlines, Inc. v. DOT, 202 F.3d 788, 801 (5 th Cir. 2000) (“In sum, because of the important federal interests here, we decline to hold that common law preclusion doctrines apply in this case.”). See also Hart v. Yamaha-Parts Distributors, Inc., 787 F.2d 1468, 1471-1473 (11 th Cir. 1986) (parent and subsidiary corporations not in privity merely because identical claims were made against them).

Nor did NBAA serve as FAA’s “virtual representative” in the litigation. The doctrine of "virtual representation" supports a finding of privity "when the respective interests are closely aligned and the party to the prior litigation adequately represented those interests." Jaffree v. Alabama, 837 F.2d 1461, 1467 (11 th Cir. 1988), citing Delta Air Lines, Inc. v. McCoy Restaurants, Inc., 708 F.2d 582, 587 (11 th Cir. 1983). According to Jaffree, several factors are relevant, including "participation in the first litigation, apparent consent to be bound, apparent tactical maneuvering, [and] close relationships between the parties and nonparties." Id., citing 18 Wright & Miller, Federal Practice & Procedure, sec. 4457, at 494-99. No such factors are present here between the FAA and NBAA. The FAA did not participate in the prior litigation nor did it consent to be bound. [123]

To allow the NAA to effectively foreclose the FAA from investigating the legality of the NAA’s Stage 2 ban “would trump the key federal interests that motivated Congress to create DOT [and FAA] and give it authority over these laws.” American Airlines, Inc. v. DOT, 202 F.3d 788, 801 (5 th Cir. 2000) (while both federal and state actions were pending, DOT initiated an interpretive proceeding leading to the issuance of a Declaratory Order). In short, as the agency was neither a party nor in privity with NBAA, the FAA lacks a “sufficient ‘laboring oar’ in the conduct of the [NBAA] litigation to actuate the principles of estoppel.” Montana, 440 U.S. at 155.

The cases cited by the NAA to support their view that the FAA was in privity with NBAA offer no such support. In fact, both National Labor Relations Board v. Donna-Lee Sportswear Co., 836 F.2d 31 (1 st Cir. 1987) and National Labor Relations Board v. Heyman, 541 F.2d 796 (9 th Cir. 1976) are easily distinguishable and have no relevance to the FAA’s NOI. Both cases addressed the issue of whether a district court’s prior determination that a binding labor contract between two parties had not been formed precluded the National Labor Relations Board (NLRB) from deciding at a later date that in fact a contract had been formed.

In Donna-Lee, the court held that no collective bargaining agreement existed between Donna-Lee and Local 229, International Ladies Garment Workers Union, an intervenor in the litigation. Thereafter, an NLRB administrative law judge (ALJ) issued an opinion contrary to the court that an enforceable contract had been formed. The ALJ’s decision was affirmed by the NLRB. Donna-Lee challenged the Board’s order for it to make payments to a benefits fund, arguing, among other things, that the Board was collaterally estopped by the district court’s judgment. At issue was whether the NLRB, not a party to the first litigation, could be bound by the court’s ruling that no contract had been formed. Specifically at issue was whether the Board and Local 229 were in privity. If so, the Board would be bound by the court’s earlier ruling.

The court found the NLRB to be in privity with Local 229 and denied the Board’s enforcement of their order. The court noted several unique factors present that led to its finding of privity. First, the NLRB had no power to investigate the alleged unfair labor practices until a formal charge had been filed. The General Counsel had to depend upon a charge being filed first by the unions. The court noted that “the Board’s presence in the dispute derives from parties that are clearly bound by the district court’s judgment.” 836 F.2d at 35. No such limitation exists for the FAA. The agency has independent statutory and regulatory authority to investigate unilaterally any suspected noncompliance. 49 U.S.C. 46101, 14 C.F.R. 16.101. It requires no relationship with a third party as in the case of the NLRB in Donna-Lee to initiate any investigation.

Second, as part of its privity finding, the court found that in the NLRB proceeding, the Board and the unions asserted the exact same interests and positions. However, in the case of the FAA’s proceeding, not only is the FAA not asserting the same interests and positions as NBAA adopted in the litigation but NBAA is not a party (nor could it be) to the FAA’s NOI process.

Third, the court found that no broad policy question was implicated in the determination that a contract did not exist nor would any precedent be established which would have wide ranging effect on labor relations. The FAA proceeding, however, raises significant national policy issues of first impression.

Fourth, the court found that “the interests of the Board cannot be disassociated from interests of Local 229 – indeed, in this setting they are virtually identical.” 836 F.2d at 35. Unlike Donna-Lee, FAA’s interests in the NOI proceeding reach far beyond those of the business or general aviation communities to include all aircraft users and operators, many of which have interests different from NBAA or GAMA. As already noted, unlike those parties, the FAA has significant responsibilities to carry out its obligations to enforce the Federal statutes governing aviation and airport operations. The Congress has granted the FAA an independent and unqualified right to take action to conduct investigations and issue orders to ensure compliance with the sponsor assurances. The FAA has substantial interests in areas such as regulating air commerce in a way that best promotes safety and fulfills national defense requirements, controlling the use of the navigable airspace, and preventing artificial restrictions on airport capacity to ensure safety and efficiency of flight operations. Thus, the Donna-Lee court acknowledged that “the geographic breadth to Government litigation [] is not found in private disputes,” and that “the issues litigated by the Government are far more numerous and of a far different nature than those litigated by even the most litigious private entity.” Id. at 37.

Finally, after noting that the National Labor Relations Act and labor policies invoke public interests, the court found that adherence to the “doctrine that the Government is generally exempted from issue preclusion” was not warranted here because “in this case, it is the private interest of the disputants that predominates.” 836 F.2d at 38. This is not the case in FAA’s NOI proceeding where the FAA is not seeking to vindicate solely the interests of the business aviation community but to enforce Federal law governing airport access for the benefit of the national air transportation system. As noted, the FAA has statutory responsibilities and interests concerning the implications on the national air transportation system of banning a category of aircraft operators from using an airport. Precedent affirming the right of airport operators such as the NAA to ban Stage 2 aircraft operations without sufficient evidence of compliance with applicable Federal law could have substantial nationwide implications. The FAA is aware that several airports around the country are currently contemplating similar restrictions.

Similarly, Heyman is also not relevant to the FAA’s NOI proceeding. As in Donna Lee, the Board was faced with a contract issue, similar Union arguments, and the presence of a judicially decreed rescission of contract. In contrast, the FAA is faced with a grant compliance issue which the district court did not consider (nor could it have without the FAA first issuing an order), and different arguments are being offered by the FAA. Also, under the statute involved in Heyman, Congress set up alternative forums for the resolution of contract disputes. In fact, according to the statute’s conference report footnoted by the Heyman court, the Board and the district court had overlapping jurisdiction to handle contract issues (“when two remedies exist one before the Board and one before the courts, the remedy before the Board shall be in addition to, and not in lieu of, other remedies.”) There is no such overlapping jurisdiction in the context of the AAIA or Part 16 between the FAA and NBAA.

As noted by the Supreme Court, the Secretary of Transportation (including FAA) “is charged with administering the federal aviation laws,” and “[h]is Department is equipped, as courts are not, to survey the field nationwide, and to regulate based on a full view of the relevant facts and circumstances.” Northwest Airlines v. County of Kent, 510 U.S. 355, 366-67 (1994). Finally, the Heyman court noted that had the Board found unfair labor practices “extrinsic to the collective bargaining agreement,” there would have been no estoppel “and the Board would properly be operating solely within its own jurisdictional authority.” 541 F.2d at 800. Under this rationale, since the district court in NBAA did not rescind a contract nor was any contract at issue, the FAA is not precluded from operating solely within its jurisdictional authority in order to complete its investigation and issue a final order.

b. Claim Preclusion -- Same Cause of Action Requirement

Concerning the “same cause of action” requirement in claim preclusion, the NAA’s argument that FAA’s NOI claims “are in essence the same” as those claims(s) addressed in NBAA fails because there is no identity between the causes of action in NBAA and the FAA’s NOI. As discussed above, the FAA was neither a party nor privy in NBAA. “Preclusion of such nonparties falls under the rubric of collateral estoppel rather than res judicata because the latter doctrine presupposes identity between causes of action. And the cause of action which a nonparty has vicariously asserted differs by definition from that which he subsequently seeks to litigate in his own right.” Montana, 440 U.S. at 154. Thus, since FAA was neither a party nor in privity with NBAA, it could not possibly be asserting the same claim or claims as NBAA in the district court litigation.

Even if there existed such identity, however, NBAA and the FAA’s NOI do not involve the same cause of action. "The principal test for determining whether the causes of action are the same is whether the primary right and duty are the same in each case … a court must compare the substance of the actions, not their form." I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1549 (11 th Cir. 1986). In NBAA, the primary right at issue was the Constitutional right of NBAA’s members who operate Stage 2 aircraft to have access to Naples Airport. The primary right at issue in the NOI is the Congressionally- mandated, contractual grant assurances that protect the rights of all users of the national air transportation system. The FAA seeks redress for a different harm (violations of the NAA’s contractual grant assurances) than NBAA sought in its litigation. [124] See Richardson v. Alabama State Board of Education, 935 F.2d 1240, 1244 (11 th Cir. 1991) (“We agree with the district court’s decision that the class action suit does not bar this litigation because the plaintiff seeks redress for different harm, although it is related to the previous suit and both suits were brought under Title VII.”). Since the substance of these two causes of action is different, the application of res judicata/claim preclusion is therefore not appropriate. To the extent that similar defenses are operative here and in NBAA, the defenses do not “arise out of the same transaction” or come from “the same nucleus of operative fact.” Trustmark Insurance Co. v. ESLU, Inc., 299 F.3d 1265, 1269-1270 (11 th Cir. 2002). The substance of the proceedings are different: NBAA sought redress for Constitutional violations and the FAA here seeks to enforce the contractual grant assurances.

2. Issue Preclusion Generally

Issue preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim. New Hampshire v. Maine, 532 U.S. 742, 748-749 (2001). Once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153 (1979).

In the Eleventh Circuit, a party seeking to invoke the doctrine of issue preclusion must establish its propriety by demonstrating that (1) the issue at stake must be identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding. I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1549 (11 th Cir. 1986).

a. Issue Preclusion -- Opportunity to Litigate Requirement

The NAA is not able to assert issue preclusion here for several reasons. First, even if there were a private right of action, [125] the FAA did no t have a full and fair opportunity to litigate grant compliance in NBAA. Congress through the AAIA specifically and expressly requires the Secretary to enforce the sponsor assurances. To prohibit the FAA from pursuing discovery and enforcement action under the AAIA on the basis of claim or issue preclusion would render Congress’ statutory provision irrelevant. Indeed, “[t]he courts should not jam judicially created doctrines such as res judicata into the gears of Congress’ carefully crafted statutory machinery.” United States v. Barnette, 10 F.3d 1553, 1561 (11 th Cir. 1994).

The Supreme Court has observed that the Secretary of Transportation (including FAA) “is charged with administering the federal aviation laws,” and “[h]is Department is equipped, as courts are not, to survey the field nationwide, and to regulate based on a full view of the relevant facts and circumstances.” Northwest Airlines v. County of Kent, 510 U.S. 355, 366-67 (1994)(emphasis added).

Moreover, it is a

“… general principal of law that the United States will not be barred from independent litigation by the failure of a private plaintiff … This principle is based primarily upon the recognition that the United States has an interest in enforcing federal law that is independent of any claims of private citizens … any contrary rule would impose an onerous and extensive burden upon the United States to monitor private litigation in order to ensure that possible mishandling of a claim by a private plaintiff could be corrected by intervention.”

United States v. East Baton Rouge Parish School Board, 594 F.2d 56, 58 (5 th Cir. 1979) (emphasis added).

b. Issue Preclusion -- Identical Issues Requirement

Concerning this next requirement, the issues raised in FAA’s NOI are not “identical” to those in NBAA. As stated above, the issues under investigation in the FAA’s NOI include (a) whether the NAA has a proprietary interest in reducing noise from aircraft using the airport, such that the Stage 2 ban is not preempted by Federal law, (2) whether the NAA’s ban is consistent with its statutory and contractual obligations to make its airport available for public use on reasonable terms and without unjust discrimination to all types, kinds, and classes of aeronautical activities, and (c) whether the NAA’s ban is consistent with its statutory and contractual prohibition from granting or permitting any person, firm, or corporation, either directly or indirectly, the exclusive right at the airport to conduct any aeronautical activities. However, neither NBAA nor GAMA raised these issues in their litigation. In NBAA, the Associations contended that the NAA’s Stage 2 ban violated both the Supremacy Clause and the Commerce Clause of the United States Constitution (i.e., that the ultimate issue was whether the ban was unreasonable, arbitrary and discriminatory and thus preempted). It makes no difference whether the standards for actions that are reasonable and not unjustly discriminatory in the realm of grant compliance may be similar to standards applied to actions in the Constitutional realm. Similar standards do not make the issues “identical.”

c. Issue Preclusion -- Actual Litigation Requirement

Grant compliance issues could not possibly have been litigated in NBAA because NBAA has no authority to litigate such issues. There is no private right of action under the Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. §47101 et seq. Arrow Airways, Inc. v. Dade County, 749 F.2d 1489 (11 th Cir. 1985); Four T’s, Inc. v. Little Rock Municipal Airport Commission, 108 F.3d 909 (8 th Cir. 1997) (the fact that 49 U.S.C. § 47107 requires the various written assurances of nondiscrimination and the like to be given to the Secretary of Transportation “indicates that Congress intended to establish an administrative enforcement scheme” rather than a private right of action. 108 F.3d at 916, quoting Northwest Airlines, Inc. v. County of Kent, 955 F.2d 1054 (6 th Cir. 1992), aff’d on other grounds, 510 U.S. 355 (1994)). For this reason alone, there can be no issue preclusion because not all of its requirements can be met. [126] Indeed, “[if] the rights asserted are so far public that private suitors lack standing to pursue them, there is no occasion to worry about preclusion between public and private litigation.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4458 (1981), p. 513.

To the extent that an issue or claim are identical in NBAA and here, such as whether ANCA authorizes the NAA’s Stage 2 ban, the NAA’s arguments still lack all of the essential elements of any attempt to assert that claims or issues are precluded under the theories of res judicata or collateral estoppel. As indicated, the FAA was neither a party in NBAA nor was the FAA in privity with any party or parties in NBAA. As a result, the same cause of action is not present in NBAA and FAA’s NOI. In addition, the FAA did not have a full and fair opportunity to litigate grant compliance in NBAA and grant compliance issues could not possibly have been litigated in NBAA because NBAA has no authority to litigate such issues.

3. Comity

Offering no support or citation, the NAA also argues that the principles of comity [127] should bar the FAA’s Part 16 investigation because “the FAA’s conduct – standing by during a judicial proceeding and ignoring the outcome – imposes an undue burden on the Authority and the courts and conflicts with public policy.” However, the Supreme Court has squarely rejected a similar argument in Martin v. Wilks, 490 U.S. 755, 762-765 (1989) (white fire fighters, who had failed to intervene in earlier employment discrimination proceedings in which consent decrees were entered, were able to challenge employment decisions taken pursuant to those decrees). Here, the Court stressed that

[j]oinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment and decree. The parties to a lawsuit presumably know better than anyone else the nature and scope of relief sought in the action, and at whose expense such relief might be granted. It makes sense, therefore, to place on the m a burden of bringing in additional parties where such a step is indicated, rather than placing on potential additional parties a duty to intervene when they acquire knowledge of the lawsuit.

Id. at 765.

Concerning public policy, comity “is not a rule of law; it is a rule of practice, convenience, and expediency … [b]eing voluntary and not obligatory, [it] rests in the discretion of the tribunals of the forum ….” Comity is also not generally accorded when it violates a strong public policy of the state. 16 Am. Jur. 2d Conflict of Laws §15 (1998). As discussed elsewhere, the FAA disagrees with the district court’s findings in NBAA. Airport noise and access restrictions that are not adequately supported by documentary evidence or are otherwise unreasonable and unjustly discriminatory violate important Federal policies concerning airport access, noise, and airspace management. Similarly, while principles of comity command careful respect by federal courts, “[w]here important federal interests are at stake …” (as they are here, e.g., enforcement of the Congressionally- mandated grant assurances and upholding of FAA’s national policies affecting flight management, efficiency, and aircraft noise), “… comity yields.” Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1246 (11 th Cir. 2000), [128] quoting United States v. Gillock, 445 U.S. 360, 373 (1980).

In any event, as discussed above, it would be unreasonably burdensome to impose on the FAA an obligation to intervene in every state and federal court suit in which issues of interest to the FAA are being litigated, or bear the risk of a preclusive judgment. FAA simply does not have the resources to intervene in the innumerable federal and state court proceedings in which aviation issues arise. United States v. East Baton Rouge Parish School Board, 594 F.2d 56, 58 (5 th Cir. 1979); Herman v. South Carolina National Bank, 140 F.3d 1413, 1426 (11 th Cir. 1998); Donovan v. Cunningham, 716 F.2d 1455, 1462 (5 th Cir. 1982).

4. Precedent and Intra-Court Comity

According to the doctrine of “intra-court comity,” not only is NBAA not binding on the FAA, but the decision is not binding on other district courts in the Eleventh Circuit. Neither is NBAA binding on other district court judges within the Middle District of Florida. Although the doctrine “generally dictates that judges of coordinate jurisdiction should follow brethren judges’ rulings on identical issues,” it is “discretionary.” American Silicon Technologies v. U.S., 261 F.3d 1371, 1381 (Fed. Cir. 2001). More importantly, unlike circuit court panels where one panel will not overrule another, district courts are not held to the same standard. Fishman & Tobin, Inc. v. Tropical Shipping & Construction Co., 240 F.3d 956, 965 (11 th Cir. 2001) (finding that a district court “cannot be said to be bound by a decision of one of its brother or sister judges” and noting the “lack of precedent to conclude that intra-court comity applies between courts on the district court level”) (emphasis added). See also, United States v. Anaya, 509 F. Supp. 289, 293 n.2 (S.D. Fla. 1980), aff’d sub nom United States v. Zayas-Morales, 685 F.2d 1272 (11 th Cir. 1982), and Aguirre v. U.S.,956 F.2d 1166 (9 th Cir. 1992) (unpublished but cited by 11 th Cir. in Fishman). Even district court cases decided by panels of three are not binding upon other judges in the same district. Anaya at 293, n.2.

The American Silicon court sums up the doctrine as follows:

In other words, judges of a unified federal district … are not constitutionally or legally bound to march in lockstep. The responsibility for maintaining the law’s uniformity is a responsibility of appellate rather than trial judges. Moreover, a judge should be able to depart from the holding of a brother judge of the same district if he is convinced through independent analysis that the holding of his colleague is incorrect.

261 F.3d at 1381 (citations omitted).

Consequently, against this legal background, the Director is not persuaded by the NAA’s argument that FAA is precluded from raising grant compliance issues in the current proceeding.

C. Burden Of Proof

By a letter dated February 16, 2001, the FAA stated that in acting to restrict access to the airport by some aircraft operators, the Authority has the burden of demonstrating that the ban meets the Authority’s obligations under the grant assurances. [129] In its Answer, the NAA states that the FAA has the burden of proof to establish that the Authority has violated its grant assurance obligations, citing 14 C.F.R. § 16.229(a). The NAA further maintains that its arguments that the Stage 2 ban is reasonable, that it does not confer an exclusive right, and that it is not preempted, do not constitute affirmative defenses and therefore do not shift the burden of proof. [130]

The burden of proving facts that show noncompliance with a statute, regulation, order, grant agreement, deed of conveyance or other document, including 49 U.S.C. 47107(a)(1) and Grant Assurance 22, is on the FAA. This burden is stated at 14 C.F.R. 16.229 in the context of administrative hearings. [131] This does not mean the burden of proving every fact rests with the FAA, however. The proponent of a motion, request, or order also has the burden of proof. [132] If the respondent asserts an affirmative defense, the respondent has the burden of proving the affirmative defense. [133] An affirmative defense can be considered to be a statement that would constitute a valid defense to the FAA’s finding of noncompliance, if the facts on which the FAA finding is based are deemed to be true.

Also, the rules for burden of proof in administrative hearings apply to proof of facts, not assertion of agency policy. FAA must prove facts that would show the airport sponsor is in noncompliance. If the facts are proven and/or not in dispute, then the question of whether the application of agency policy to those facts shows the sponsor to be in noncompliance is a question of law, involving interpretation of statute and determinatio n of agency policy, not proof of facts.

Where a case involves a fact situation that is subject generally to existing law and policy but not previously raised before the agency, the agency can issue an interpretative rule through the adjudication of the case. That is the case here. The NAA and other airport operators obligated under AIP grant assurances have long had clear guidance that the FAA considers the AIP grant assurances to continue to apply following enactment of ANCA; that access restrictions are the exception to the general requirement for public access to the airport; that exceptions must be reasonable and not unjustly discriminatory; that DNL 65 dB is the federal threshold of significant noise impact on residential land use; that land use compatibility guidelines issued by FAA in 14 CFR Part 150 consider residential land uses to be compatible with aircraft noise exposure levels below DNL 65 dB; and that lower DNL levels may be used for planning and local mitigation measures, such as buffer land purchase and home insulation, but that levels below DNL 65 dB have never been used to support access restrictions.

The NAA had also been advised consistently for more than a year and a half that the FAA did not believe the evidence showed that the ban on Stage 2 aircraft at the Naples Municipal Airport to be reasonable under the grant assurances. Accordingly, the conclusions of this Director’s Determination do not reverse or revise existing policy other than to interpret that policy and apply it to a set of facts not previously encountered by the agency.

D. Implications Of The FAA’s Approval Of The Stage 1 Ban At The Airport

The NAA argues that the FAA’s approval under 14 C.F.R. Part 150 of the 1999 ban of Stage 1 aircraft at the Naples Municipal Airport represented an agency approval of a ban of a category of aircraft, defined by noise certification stage, and based on circumstances similar to those that support the Stage 2 ban. Accordingly, the NAA contends, the same policy must be applied to the ban of Stage 2 aircraft, and that policy, the NAA argues, requires an agency finding that the Stage 2 ban is reasonable and not unjustly discriminatory. [134]

However, the NAA’s characterization of the FAA action approving the Stage 1 ban is selectively described to make it appear similar to the Stage 2 issue under consideration. It is not, and there are significant differences, several of which were pointed out to the NAA during the January 18, 2001 meeting, which FAA representatives attended. [135]

In its arguments, the NAA omits any mention of the primary difference: the Stage 1 ban removed the residents exposed to noise above the level of DNL 65 dB, the federally recognized land use compatibility criterion in residential areas. [136] At the time the Stage 2 ban was adopted, there were no residences within the DNL 65 dB contour.

The FAA’s approval of the Stage 1 ban was based in part on a determination that both the local and national effect of the ban would be insignificant, and that the likelihood of frequent Stage 1 use of APF would have been very low. The FAA approval of the Stage 1 ban cited the fact that there were no Stage 1 aircraft based at the airport, nor were there any objections registered with either the FAA or the airport operator from any registered owners of Stage 1 aircraft. The FAA approval of the Stage 1 ban was based on information supplied by the NAA that the total U.S. fleet of Stage 1 aircraft was less than 50. New information indicates that the actual number of Stage 1 aircraft in the U.S. fleet was substantially higher.

Unlike the Stage 1 aircraft fleet, the national fleet of Stage 2 turbojet only, as cited by the NAA and confirmed by FAA, numbers more than 2,000. [137] In other words, the Stage 2 turbojet jet fleet continues to represent a substantial component of the corporate aviation fleet in the United States. Approximately 28 percent of the aircraft in the general aviation and air taxi fleet, which could also be defined as the corporate turbojet fleet, are Stage 2 aircraft. [138]

In contrast to the Stage 1 situation, there were Stage 2 aircraft based at the Airport when the NAA adopted the Stage 2 ban, and the operators and their businesses have indicated that they would be substantially affected by that ban. While the FAA Stage 1 ban approval did refer to the availability of other airports within 30 miles for transient operators, this was one of many factors, and not considered by FAA to be a significant factor even for those transient flights, and it certainly does not offset the impact on based operators of Stage 2 aircraft.

The NAA states that the Stage 1 ban was approved without consideration of the relative costs and benefits. This is not correct. The FAA did consider the impact (cost) on aircraft operators as outlined above and the benefit of reducing airport noise contours within the DNL 65 dB and removing people from significant levels of noise exposure.

The NAA notes that the FAA approved the Stage 1 ban without regard to a showing of potential liability on the part of the airport. This would have been due to the fact that the Stage 1 ban under review had the actual effect of reducing the number of residences impacted at noise levels above DNL 65 dB. [139] There is no such benefit from the Stage 2 ban.

The NAA cites language in the Stage 1 approval that the Stage 1 ban applied to the “loudest type of aircraft operating at Naples.” FAA did make that statement in support of a finding of no unjust discrimination. Whether or not that statement would actually be supported by a detailed comparison of aircraft noise measurements, we would not consider that to be sufficient grounds for a finding that discrimination was justified. [140]

Setting aside the differences between noise levels, FAA did not consider any one single factor to be sufficient grounds for approval of a ban on a class of aircraft. As we stated in our approval under Part 150, as a matter of policy, FAA does not consider the use of aircraft stage designations to be unjustly discriminatory per se. However, it does not imply that it would apply to all airport situations.

In summary, the Stage 1 ban approved in 1999 bears little resemblance to the facts of the Stage 2 ban considered here. The Stage 1 ban addressed residential land use within the DNL 65 dB contour and was based on the agency’s determination that the ban imposed a minimal burden on actual and potential airport users.

Finally, the fact that in the past the FAA approved a Stage 1 ban at APF under Part 150 does not define the FAA’s position on a new restriction on airport access with different circumstances or limit the agency’s ability to apply a thorough review under applicable Federal law.