United States v. New York (Part 2)

United States v. New York (concluded)

III

In this Court a party seeking a preliminary injunction must make a clear showing of "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir.1982); Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981). A preliminary injunction is an "extraordinary and drastic remedy which should not be routinely granted" except upon a clear showing that the movant has carried its heavy burden. Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir.1981); Beech-Nut, Inc. v. Warner Lambert Co., 480 F.2d 801, 803 (2d Cir.1973). Moreover, where granting a preliminary injunction would adversely affect the "public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 674, 88 L.Ed. 834 (1944); New York Pathological and X-Ray Laboratories, Inc. v. Immigration and Naturalization Service, 523 F.2d 79, 81 (2d Cir.1975). This Court believes that plaintiff Beechcraft's application for a preliminary injunction should be granted since Beechcraft has met the burden of demonstrating both prongs of this Circuit's preliminary injunction test.

A. IRREPARABLE HARM

Beechcraft has demonstrated that, as a result of the curfew, its customers are cancelling their agreements with Beechcraft and are "going elsewhere". In this regard, Beechcraft has presented evidence that over twenty-five [FN8] customers have given Beechcraft notice of their intention to relocate to another airport when the curfew is imposed, and, moreover, that cancellations continue to be received by Beechcraft on an almost daily basis.

[FN8] These customers now include Doubleday Communications Corporation, Aero Direct, Inc.; the New York Islanders; Nassau Flyers, Inc.; Pegasus Aeroservices Inc.; Vanguard Instrument Corporation; Oscar de la Renta, Division of Rich Fin, Inc.; Price-Driscoll Corporation; AOPA New York Members; Assemblyman G. Oliver Koppell; Struthers Electronics Corporation; Action Crane Corp.; Irwin & U.S.; Imperial Jalousie Corp.; Comsteel Products, Inc.; Associated Marketing Systems, Inc.; Mercury Paint Corp.; Aping Specialties Corp.; Precise Optics/PME, Inc., Procyon Corp.; Damin; Compac; Botie Instrument Co., Inc.; AFA, Inc.; and Advantage Food Marketing Corp.

Defendants allege that, on an average basis, Republic Airport during 1981 had a total of 527 daily takeoffs and landings and only 14 of these operations -- 2.6 percent -- occurred during the hours of 11:00 P.M. and 7:00 A.M. Therefore, since Beechcraft's business at Republic is to service aircraft using the facility, defendants contend, on the basis of the above statistics, "Beechcraft cannot claim that its viability as a business entity will be irreparably harmed if it is unable to realize revenues from its servicing of the few aircraft which will now be unable to use Republic during the hours of the curfew." (Affidavit of Clarence Cook, P 28).

However, defendants have not consulted the appropriate navigational aids supplied by the Second Circuit. That Court recognized, in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam), that "[a]s to the kind of irreparable harm that the party must show, the language of some past cases has suggested to some a spectrum ranging from possible to probable which is defined as 'not remote or speculative but ... actual and imminent.' " Yet it is clear that the preferred showing to be made must be beyond "possible irreparable injury" since, "as the great Voltaire once wrote in Candide, his most entertaining and perhaps most influential philosophical novel ... anything is possible in this best of all possible worlds." Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Company, 604 F.2d 755, 759 (2d Cir.1979).

Here, Beechcraft has demonstrated a business loss that is certainly "not remote or speculative, but [is] actual and imminent". Id. Over twenty-five customers have given notice that they will terminate their accounts with Beechcraft, and others have in fact transferred their business to other airports. For this loss there is no adequate remedy at law, [FN9] and, therefore, the fact that the loss may be only a small percentage of Beechcraft's nation-wide and international revenue is irrelevant. There is no requirement in this Circuit that a party wait until near-extinction before moving for a preliminary injunction. The law, like the Constitution, is not a suicide pact. [FN10]

[FN9] The eleventh amendment, of course, precludes Beechcraft from obtaining compensatory damages here. See, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

FN10. To paraphrase Justice Jackson.

B. LIKELIHOOD OF SUCCESS ON THE MERITS

Beechcraft contends that the action of the State of New York in imposing a night time curfew at Republic Airport impairs its contract rights in violation of the Contract Clause of the Constitution, Article I, s 10 and impedes interstate commerce in derogation of the Commerce Clause, Article I, s 8, cl. 3. In the alternative, Beechcraft contends that New York's actions violate the Supremacy Clause of the Constitution, Article VI, cl. 2 since, (1) the transfer of the airport and the imposition of a curfew conflicts with federal interests in airport development and aviation safety, and (2) the imposition of a curfew on all aircraft users by a state under its police power authority is otherwise pre-empted by congressional legislation.

As a threshold matter, this Court observes that it is a cardinal principle of American jurisprudence that, given the existence of both constitutional and statutory issues in an action, "[t]he latter ... [is] to be decided first and the former not reached if the statutory claim ... [is] dispositive." Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974). New York City Transit Authority v. Beazer, 440 U.S. 568, 582 n. 22, 99 S.Ct. 1355, 1364 n. 22, 59 L.Ed.2d 587 (1979); Ashwander v. T.V.A., 297 U.S. 288, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Moreover, there is no question that a claim under the Supremacy Clause is considered a statutory issue to be determined before resolution of any constitutional question. Hagans v. Lavine, supra, 415 U.S. at 549, 94 S.Ct. at 1385; Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).

Whether a federal statute pre-empts the otherwise lawful authority of a state to regulate in a specific area is a question of congressional intent. "[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Therefore, if Congress expressly declares that the authority conferred by it shall be singularly federal, the States may not exercise concomitant or supplementary power over the identical activity. Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961); Rice v. Santa Fe Elevator Corp., supra. Even when Congress has failed to speak expressly to the issue of federal exclusivity, an intention to create sole federal authority can be implied. Fidelity Federal Savings & Loan Assoc. v. Reginald D. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Key factors in this determination include: (1) the pervasiveness of the federal regulation, Rice v. Santa Fe Elevator Corp., supra; (2) dominance of the federal interest in the field of regulation, and whether non-federal regulation obstructs the full execution of those aims, Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971).

Beechcraft contends that the Noise Control Act of 1972, 42 U.S.C. s 4901 et seq., as it amends the Federal Aviation Act of 1958, 49 U.S.C. s 1301 et seq., and the regulations promulgated thereunder, pre-empt the area of noise regulation and render Article 15 unconstitutional. The leading case on this question is unquestionably City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). Burbank involved a city ordinance which imposed a "curfew" that, in the absence of an emergency, prevented jet aircraft from taking off from privately owned Hollywood-Burbank Airport between the hours of 11:00 P.M. and 7:00 A.M. Justice Douglas, writing for a 5-4 majority, after a detailed examination and analysis of the aforementioned statutes, their legislative history, and the interplay of the pre-emption rationale of Rice v. Santa Fe Elevator Corporation, supra, concluded that the "pervasive nature of the scheme of federal regulation of aircraft noise" constituted pre-emption. City of Burbank v. Lockheed Air Terminal, supra, 411 U.S. at 633, 93 S.Ct. at 1859.

However, Burbank recognized that Congress singled out airport proprietors and gave them special, although undefined, leeway in controlling the sources of aircraft noise directly. City of Burbank v. Lockheed Air Terminal, supra, 411 U.S. at 635-36 n. 14, 93 S.Ct. at 1861 n. 14; British Airways Board v. Port Authority of New York [I], 558 F.2d 75, 83 (2d Cir.1977). [FN11] The rationale for this exception is clear: since airport proprietors bear liability for excessive aircraft noise under Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), fairness dictates that they must have power to insulate themselves from that liability. British Airways Board v. Port Authority of New York [I], supra, 558 F.2d at 83. See 34 Fed.Reg. 18, 355 (1969); S.Rep. No. 1353, 90th Cong., 2d Sess. 7 (1968), reprinted in [1968] U.S.Code Cong. & Ad.News 2688, 2693. However, before a political entity, acting as an airport proprietor, may possess the power to abate airport noise, it must bear the responsibility, either actual or potential, for excessive airport noise. Among the bases given in Griggs for constitutional liability, or proprietorship for Burbank purposes, were the entity's ability to obtain the necessary approach easements, see British Airways Board v. Port Authority of New York [II], 564 F.2d 1002, 1011 (2d Cir.1977), and its status as promoter, lessor, and operator of the airport. Griggs v. Allegheny County, supra, 369 U.S. at 89, 82 S.Ct. at 533. See Town of East Haven v. Eastern Airlines, Inc., 331 F.Supp. 16, 30-32 (D.Conn. 1971). Indeed, several other courts have expressly recognized that municipalities and other political sub-divisions of a state may fall under the so-called Griggs exception. See e.g., National Aviation v. City of Hayward, Cal., 418 F.Supp. 417 (N.D.Cal.1976); Air Transport Association of America v. Crotti, 389 F.Supp. 58 (N.D.Cal.1975).

[FN11] There were two Circuit decisions concerning the British Airways Board and the Port Authority: British Airways Board v. Port Authority of New York, 558 F.2d 75 (2d Cir.1977) and British Airways v. Port Authority of New York, 564 F.2d 1002 (2d Cir.1977).

Beechcraft, however, argues that New York was acting under its police power when Article 15 was enacted and not as an airport proprietor, and, therefore, the curfew provisions are a nullity under the Burbank rationale. As previously noted, the rationale for the proprietor exemption to imposing curfews is to enable a proprietor to protect himself from liability for excess aircraft noise. Beechcraft contends that, at the time at which the curfew was imposed, New York had never been the proprietor of Republic and had not experienced a prior and continuing commercial interest in avoiding liability. The threat of commercial ruin from large, adverse monetary judgments underlying the "fairness" rationale for the proprietor exemption was not present when New York took over the airport, it is contended, and New York's action was a purely political act of its Legislature. [FN12] Therefore, Beechcraft concludes, the Griggs exception does not apply to a state or at least to the state acting at bar. Cf. San Diego Unified Port District v. Gianturco, 651 F.2d 1306 (9th Cir.1981) (where the court held that California was not acting as an airport proprietor when its transportation department promulgated curfew hours).

[FN12] See n. 6, and accompanying text, supra.

This Court rejects this contention. It is well accepted that a state may act in both a proprietary and a governmental capacity. United Transportation Union v. Long Island Rail Road Co., 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982); National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936). Here, the State of New York, simultaneously with the transfer of ownership of Republic from MTA to the State, promulgated the curfew in response to local community complaints of noise pollution stemming from Republic. Although the transfer may have been for political and economic reasons and pursuant to legitimate state police power, the enactment of the curfew was an act of a proprietor. By statute, New York has waived its immunity from liability and action and has consented to suit in accordance with the same rules of law as apply to actions in the state Supreme Court against individuals or corporations. N.Y. Court of Claims Act. Therefore, since the State here faces potential liability, the rationale of the Griggs exception applies.

However, the Second Circuit in British Airways Board I held that the scope of an airport proprietor's power "to impose use restrictions based on noise considerations is defined by the limited role Congress reserved for it in the national scheme...." 558 F.2d at 84. The proper bailiwick of the proprietor is the "issu[ance of regulations] or establish[ment of requirements] as to the permissible level of noise which can be created by aircraft using the airport." S.Rep. No. 1353, supra at 6, reprinted in [1968] U.S.Code Cong. & Admin.News 2694. The State then is vested "only with the power to promulgate reasonable, nonarbitrary and non-discriminatory regulations that establish acceptable noise levels for the airport and its immediate environs. Any other conduct by an airport proprietor would frustrate the statutory scheme and unconstitutionally burden the commerce Congress sought to foster." British Airways Board I, supra, 558 F.2d at 84. See also National Aviation v. City of Hayward, Cal., supra.

Here, the Court finds that Article 15's curfew is overbroad,unreasonable and arbitrary. The curfew extends to all aircraft, regardless of the degree of accompanying emitted noise. In fact, Article 15 makes no reference to noise levels measured in decibels as a factor in particular plane prohibition during the 11:00 P.M. to 7:00 A.M. curfew. Instead, all take-offs and landings are proscribed, except emergency flights, and all aircraft are presumed and deemed intolerable, as a matter of law, to the surrounding communities. Moreover, as the State admits, only 14 flights occur during the forbidden hours -- a mere 2.6 percent of the total daily aircraft traffic. A total proscription of flights during the curfew period, it seems to this Court, is unreasonable in view of the sparsity of flights during the curfew hours. Therefore, since the curfew imposed by Article 15 at Republic extends to all aircraft, regardless of decibel level emitted by individual aircraft, and is in any event arbitrary under the circumstances of the low number of flights, the curfew provision of Article 15 is overbroad and constitutionally impermissible in view of federal pre-emption of regulations concerning noise and planes in flight. British Airways Board I, supra. See Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir.1956); see also American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir.1968), cert. denied, 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969).

In addition, the Supremacy Clause covers not only cases where federal regulation has so pervasively pre-empted an area so as to prohibit state action of a similar character, but also where narrower conflicts between state and federal law exist, even when the subject of the conflict involves an area not otherwise pre-empted by federal regulation. "Even where Congress has not completely displaced state regulation in a specified area, state law is nullified to the extent that it actually conflicts with federal law." Fidelity Federal Savings & Loan Assoc. v. Reginald de la Cuesta, supra, 102 S.Ct. at 3022. Gibbons v. Odgen, 9 Wheat 1 [22 U.S. 1, 6 L.Ed. 23] (1824). In deciding whether a statute is in conflict with a federal statute or regulation, and ergo invalid, a court must first ascertain the construction of the federal and state statutes or regulations, and then decide the constitutional question of whether they conflict. Perez v. Campbell, supra, 402 U.S. at 644, 91 S.Ct. at 1708 (1971).

Here, the federal grant law requires that airports receiving federal funding be made available for use by the United States at all hours. Federal grants to airport operators are made pursuant to the Airport and Airways Development Act of 1970, 49 U.S.C. s 1701 et seq. Among the Act's provisions is a requirement that, as a condition to obtaining federal funding, an airport owner must give assurances, as the MTA (and now New York as MTA's successor in interest) here so covenanted, that "all of the facilities of the airport developed with federal financial assistance and all those usable for landing and takeoff will be available to the United States ... in common with other aircraft at all times." (emphasis added). 49 U.S.C. s 1718(5). New York's blanket 11:00 P.M. to 7:00 A.M. curfew undeniably conflicts with the congressional mandate that Republic Airport, as a recipient of federal grant money, be open for use by the United States, and private parties, twenty-four hours a day. It is clear then that Article 15's curfew provision, since it conflicts with a federal statute and the will of Congress, is repugnant to the Constitution, and, therefore, a nullity.

Accordingly, Beechcraft has sustained its burden with respect to this application. A preliminary injunction order was signed on October 7, 1982.

The foregoing shall constitute the Court's Findings of Fact and Conclusions of Law in support of the order heretofore made, pursuant to Fed.R.Civ.P. 52(a).

It is so Ordered.

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