Pueblo Aircraft Service, Inc. v. City of Pueblo, Colo.

• Decision Date: 13 April 1982
• Docket Number: No. 80-2083,80-2083
• Citation: 679 F.2d 805
• Parties: 1982-1 Trade Cases 64,668 PUEBLO AIRCRAFT SERVICE, INC., a Colorado corporation, Plaintiff-Appellant, v. The CITY OF PUEBLO, COLORADO, a Municipal corporation, Thomas Lopez, Individually and as Director of Aviation for the City of Pueblo, Pan-Ark Aviation, Inc., a Colorado corporation, and George Rabatin, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 805

679 F.2d 805

1982-1 Trade Cases 64,668

PUEBLO AIRCRAFT SERVICE, INC., a Colorado corporation Plaintiff-Appellant, v. The CITY OF PUEBLO, COLORADO, a Municipal corporation Thomas Lopez, Individually and as Director of Aviation for the City of Pueblo, Pan-Ark Aviation, Inc., a Colorado corporation, and George Rabatin, Jr., Defendants-Appellees.

No. 80-2083.

United States Court of Appeals, Tenth Circuit.

April 13, 1982.

Alan L. Sulzenfuss, Salida, Colo. (Maurice R. Franks, Pueblo, Colo., with him on brief), for plaintiff-appellant.

Thomas E. Jagger, Pueblo, Colo. (Joseph A. Vento of Kettelkamp, Vento & Brown, Pueblo, Colo., with him on briefs), for defendants-appellees.

Before SETH, Chief Judge, and BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

This is an action involving alleged federal antitrust act violations brought by plaintiff-appellant, Pueblo Aircraft Services, Inc. (Pueblo Aircraft) under 15 U.S.C.A. §§ 1 ¹ and 14 ² against the City of Pueblo Colorado (City), Thomas Lopez, City's Director of Aviation, Pan-Ark Aviation, Inc. and George Rabatin, Jr., arising from City's operation of a municipal airport.

The district court, 498 F.Supp. 1205, granted the defendants-appellees' motion for summary judgment, finding/concluding that City is immune from the federal antitrust laws and further that no genuine claim is stated against the other defendants-appellees. The trial court pertinently observed after finding/concluding that City is immune from federal antitrust laws, that if this conclusion is correct, no further consideration of the summary judgment motions is necessary "(s)ince all antitrust claims of the plaintiff against all the remaining defendants are based on alleged violations by the City of the Federal antitrust laws ..." (R., Vol. I, p. 182). Thus, the district court dismissed the suit with prejudice as to all defendants on the ground that no claim had been stated upon which relief can be granted. The court granted summary judgment based upon extensive pleadings, voluminous depositions, documents, affidavits filed in support of and in opposition to the motions, briefs of the respective parties, and an open court hearing.

We approach this review aware that summary procedure should be used sparingly in antitrust litigation, Poller v. Columbia Broadcasting, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), and that summary judgment should issue only where there is no genuine issue of material fact. Harman v. Diversified Medical Investments Corporation, 488 F.2d 111 (10th Cir. 1973), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1979). Factual inferences tending to show triable issues of material fact should be viewed in the light most favorable to the existence of such issues in assessing a motion for summary judgment. Harsha v. U. S., 590 F.2d 884 (10th Cir. 1979).

Facts

The facts stated most favorably to Pueblo Aircraft are as follows. In 1948 City acquired from the federal government by deed a tract of land which had been used as a military airfield during World War II, granted for the specific purpose of establishing a municipal airport. At the time of acquisition, there were certain facilities available to City on the premises for airport operations including hangars and a storage facility to store aviation fuel. Since prior to 1970, City granted leases to three "fixed base operators" who operated businesses upon specific portions of the airport lands so leased and performed specific services which were monitored by City, including refueling of aircraft, sale of new and used aircraft, repair and maintenance of aircraft, sale of aircraft parts and supplies, rental and charter of aircraft, conduct of a flying school, operation of food vending machines, storage of aircraft, and the manufacture of aircraft parts and components. The lease agreements with each of the "fixed base operators" ³ required them to purchase all aviation fuel from City for resale. ⁴ The three fixed base operators were defendants Pan-Ark, Flower Aviation and the plaintiff-appellant, Pueblo Aircraft.

In 1970, Willard J. Teel and Betty I. Teel acquired all of the stock of Pueblo Aircraft and thereafter actively managed a fixed base operation under the lease granted by City, which expired on March 31, 1977, but was extended to June 31, 1977.

Several months prior to the expiration of Pueblo Aircraft's lease, City determined to require public bidding for the lease, upon its termination, of the premises and improvements leased to Pueblo Aircraft. The only bidders were Pueblo Aircraft and Pan-Ark. Pan-Ark was declared the successful bidder and City authorized a lease of the premises formerly occupied by Pueblo Aircraft to Pan-Ark commencing July 1, 1977.

At all times since the acquisition of the airport, City has been a "home rule" city, chartered pursuant to Art. XX, Section 6 of the Colorado Constitution which permits City to exercise "the full right of self-government in both local and municipal matters" and provides that the charter or ordinances enacted by City pursuant to such authority shall supersede the statutes of Colorado in exercising self-government.

City, at all times following acquisition of the airport, assumed control and responsibility for providing and maintaining the storage facility, monitoring the quality of fuel, providing fire protection and assuring the supply of aviation fuel to serve the needs of the fixed base operators and other aircraft using the airport who were not supplied by the fixed base operators. All leases entered into between City and the fixed base operators required the operators-lessees to purchase all aviation gasoline or propellants dispensed by them from City. The storage facility was on the premises when the property was acquired by the City. It was an underground fuel storage facility located away from the buildings and ramp area, and City daily monitored the fuel in order to assure its quality before it was dispensed to the fixed base operators. The City purchased the fuel through competitive bidding. At no time did any fixed base operator offer to construct its own storage facility on the airport premises so as to obtain aviation fuel independent of City.

Trial Court's Ruling

The district court found/concluded that City is immune from the federal antitrust laws primarily by virtue of its status as a "home rule city" chartered pursuant to Article XX, Section 6 of the Colorado Constitution. The court relied on Community Communications Co. v. City of Boulder, 630 F.2d 704 (10th Cir. 1980) as authority for the proposition that City's operation and management of the airport was exempt from federal antitrust laws by virtue of its power and authority as a "home rule" city. In Community Communications Co. v. City of Boulder, --- U.S. ----, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) the Supreme Court reversed our decision reported in 630 F.2d 704, supra, and held that an ordinance enacted pursuant to Colorado's "home rule" authority does not constitute municipal action exempting it from antitrust scrutiny because it does not constitute municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy as enunciated in California Liquor Dealers v. Midcal Aluminum, 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978), Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), and Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The parties agree here that in light of Community Communications Co. v. City of Boulder, supra, the district court's reliance on the "home rule" status of City for exemption from antitrust scrutiny must fail.

However, the district court alternatively relied on a specific statutory authorization granted to City as a further ground for its immunity determination. The court found that the State of Colorado has specifically authorized City to acquire and operate a municipal airport and that such acquisition and operation "are hereby declared to be public, governmental functions, exercised for a public purpose and matters of public necessity" by virtue of C.R.S.1973 § 41-4-101 which provides:

The acquisition of any lands for the purpose of establishing airports or other air navigation facilities; the acquisition of airport protection privileges; the acquisition, establishment, construction, enlargement, improvement, maintenance, equipment, and operation of airports and other air navigation facilities; and the exercise of any other powers granted in this part 1 to any county, city and county, city, or town are hereby declared to be public governmental functions, exercised for a public purpose, and matters of public necessity; and such lands and other property, easements, and privileges acquired and used in the manner and for the purposes enumerated in this part 1 are hereby declared to be acquired and used for public purposes and as a matter of public necessity.

The district court concluded, then, that City, in its dealings with the fixed base operators, "is immune from the Federal antitrust laws", and, because all antitrust claims of Pueblo Aircraft against all other defendants were necessarily based on alleged violations by City, the immunity of City required granting of summary judgment motions of dismissal with prejudice as to all defendants. However, in an abundance of caution, the trial court determined it desirable, should its ruling on City's immunity be reversed on appeal, to address all other questions raised by the summary judgment motions. The court thereupon, in detail, addressed and ruled upon each of Pueblo Aircraft's remaining antitrust claims and found/determined that each was without substance, and that there were no specific facts showing that there were any genuine issues for trial as to any claims against...