Argument Before the 11th Circuit US Court of Appeals

by Mar 21, 2022Airports, FAA, Hot Topics, Law, Legal

On Tuesday, March 15, 2022, the United States Court of Appeals for the Eleventh Circuit heard oral argument from counsel in Palm Beach County and City of Atlantis, Florida v. Federal Aviation Administration and Captain Errol Forman, Case No. 21-10771. The first lawyer to speak was Steven Osit (on behalf of Palm Beach and City of Atlantis). The second was Cyndi Barmore of the Department of Justice (for the FAA). Third in the argument cycle was Alan Armstrong (on behalf of Capt. Forman). Finally, Steven Osit had 3 minutes of rebuttal.


The case involves the jet ban at Lantana Airport which has been stricken as unlawful by the FAA on three occasions. As you listen to the audio recording, you will enjoy the interaction between the argument of counsel and the questions by Judges Carnes, Pryor and Branch. Arguing a case before an appellate court requires a great deal of preparation. A lawyer may spend a week in intense preparation for a fifteen minute argument. Why is this true? It is true because oral argument is the only time the lawyers actually are allowed to interact with the judges. Everything else is done on paper with briefs, motions and pleadings. That process is very impersonal. But actually arguing a case before seasoned and knowledgeable judges like these? Well, you had better be prepared for any and all eventualities. You had better know every case that supports your position and every case your opponent relies on. If you do not know the case cold, you may be embarrassed. No lawyer wants to admit to a judge that he/she does not have an answer to a question. There is too much at stake not to be thoroughly prepared. As you listen to the arguments and questions, the level of preparation the lawyers and judges went to in advance of oral argument should be apparent.


Among the arguments addressed were:


(1) Was the Palm Beach County jet ban exempt (grandfathered) from the requirements of the Airport Noise and Capacity Act (ANCA)? Why is this important? ANCA has some rigorous steps to be taken before Stage 3 jet aircraft can be prohibited from operating from a public use airport receiving federal funding to operate and maintain the airport. In this case Palm Beach County had not complied with ANCA, had conducted no noise study, had no noise contour maps and had no repository of noise complaints for 5 years before 2016. Rather, it argued the jet ban was exempt from ANCA on the theory it had been in place since 1973, before ANCA took effect on October 1, 1990. However, in 1998, the jet ban was rescinded, or so the FAA found. Although re-enacted in various forms after October 1, 1990, it was not in effect on the date ANCA took effect, or so the FAA found. So, the legal question was whether Palm Beach County had or had not complied with ANCA in banning jets from Lantana Airport.  


(2) Could the FAA consider an apparent violation of ANCA as a basis for a finding of a violation of FAA Sponsor Grant Assurance No. 22(a)? Grant assurance No. 22(a) requires the operator of a public use airport  to make the airport available to all classes of aeronautical users without unjust discrimination. So, if Palm Beach put the jet ban in place without first complying with ANCA, it was prima facie unlawful and unreasonable. The FAA concluded there had been no compliance with ANCA and the County was not exempt from complying with ANCA.


(3) Did Captain Forman carry his burden of proof when he filed his formal, Part 16 Complaint with the FAA in Washington? Palm Beach and the City of Atlantis claimed the complaint Capt. Forman filed with the FAA was deficient because he did not carry his burden of proof. Capt. Forman attached 36 exhibits to his Part 16 Complaint. Those exhibits indicated the reason for the jet ban was noise, but there had been no noise study. His Complaint also alleged the 1973 jet ban was rescinded in 1988 and was not in effect on October 1, 1990, when ANCA took effect. He further argued Grant Assurance No. 22(a) requires the airport be open to all classes and categories of aircraft without unjust discrimination. While Grant Assurance No. 22(i) permits restricting access to an airport for reasons of “safety and efficiency,” Capt. Forman argued there was no noise study and there were no safety and efficiency studies with the result Palm Beach County could not carry its burden of proof to justify the jet ban. The FAA Director of Airports agreed with Capt. Forman as did the Associate Administrator when he affirmed the Director of Airports.


So, again, enjoy the arguments and questions of the judges. The manner in which the lawyers argued along with the questions of the judges, and their voice intonation, all give you insight into the thought processes of the judges and the lawyers. In short, you can tell when a lawyer is winning an argument and losing an argument.   

21-10771 Palm Beach County, et al., Petitioners v. Federal Aviation Administration 2022-03-15.”

by Alan Armstrong

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