00-1891 Miller Aviation v. Milwaukee County Board of Supervisors, et al.

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“Wis. Stat. sec. 114.14 provides that ‘[t]he governing body of a city, village, town or county may adopt regulations, and establish fees or charges for the use of [an] airport or landing field . . . .’ Miller alleges that the County violated sec. 114.14 by ‘charging [it] unreasonable rental fees.’ There is nothing in the text of sec. 114.14, however, explicitly providing for a private right of action to challenge any ‘fees or charges’ established by municipalities pursuant to this statute. Therefore, Miller’s claim under sec. 114.14 is viable only if the statute contains an implied private right of action.

“The language and form of sec. 114.14 do not suggest that the Wisconsin legislature intended to create a private right of action, but instead illustrate that the statute was designed to outline the manner in which municipalities are to manage their airports and landing fields, and to provide general protection to the public regarding same. Miller’s failure to cite any such text on appeal, or in its trial briefs below, only reinforces our conclusion that this is indeed the case.

“Likewise, Miller’s claim also fails to state a cognizable federal cause of action under 49 U.S.C. sec. 40116. Section 40116 is part of the Anti-Head Tax Act (‘AHTA’). There is no explicit grant of a private right of action in the AHTA… Miller contends that the County charged it unreasonable rental fees in violation of sec. 40016(e)(2). The AHTA does not, however, set standards for assessing the reasonableness of fees and charges established by state municipalities, and, more importantly, there is nothing in the text of sec. 40116 granting a private remedy for violations of the statute. Because Congress’ ‘statutory intent’ is ‘determinative’ on the question of whether a statute contains a private remedy, a private right of action cannot be implied with respect to the AHTA.

“Unlike the sec. 114.14/sec. 40116 claim, the resolution of which involved only questions of law, Miller’s four remaining supplemental claims must be analyzed by applying the district court’s findings of fact to applicable state law. This is a proper function of the district court, and we therefore decline the County’s invitation to dispose of these claims on appeal. Instead, we remand both parties’ remaining supplemental claims to the district court for its final consideration.

“The district court erred in remanding the remaining claims in this case to state court pursuant to 28 U.S.C. sec. 1367(c)(3). Accordingly, we Dismiss Miller’s sec. 114.14/sec. 40116 claim, and Reverse and remand the district court’s remand of the remaining supplemental claims to state court, with instructions to proceed in the manner outlined in this opinion.”

Dismissed in part and reversed and remanded in part.

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Manion, J.