Miree v. DeKalb County, Georgia – Oral Argument – April 27, 1977

Media for Miree v. DeKalb County, Georgia

Audio Transcription for Opinion Announcement – June 21, 1977 in Miree v. DeKalb County, Georgia

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Warren E. Burger:

We will hear arguments next in 76-607, Miree against DeKalb County and the three consolidated related cases.

Mr. Mozley you may proceed, when you are ready.

J. Arthur Mozley:

Mr. Chief Justice, May it Please the Court.

Mr. Heldman and I have a divided argument persuading to a permission of the court and I will speak for approximately 15 minutes and we will provide the court with a brief outline of the case and will devote my arguments to the questions of Federal preemption and implied private rights.

Mr. Heldman will argue the issues involving third-party beneficiary status, whatever time remains after our argument, we would like to reserve for rebuttal.

Warren E. Burger:

When you say implied private rights, do you mean an implied cause of action under the Federal Airport Act?

J. Arthur Mozley:

Yes, I do Your Honor.

Warren E. Burger:

Will you address yourself somewhere in your argument to where that was first raised.

I have read that District Court opinion and the Court of Appeals opinion and I find no hint in either of them that that was ever raised.

J. Arthur Mozley:

I believe that it was raised throughout the case Your Honor in terms of being beneficiaries of the safety covenants in the grant agreements and being able to sue as third-party benefits — to sue for breach of those grant agreements as third-party beneficiaries.

Warren E. Burger:

You are simply talking then when you say implied right of action, you mean a third-party beneficiary claim not an implied Cort versus Ash type of claim.

J. Arthur Mozley:

Yes sir, I am speaking of an implied Cort versus Ash type of claim based upon breach of these safety covenants in the grant agreements.

The safety covenants in the grant agreements are also statutorily imposed safety covenants under the Federal Airport Act.

Warren E. Burger:

Well, are they two different theories of action?

J. Arthur Mozley:

Yes sir, I believe that if we wanted to possibly split hairs, they would be two different theories, yes sir.

Warren E. Burger:

Well, then if you have time to say when you first raised your Cort versus Ash claim.

J. Arthur Mozley:

I believe it was probably in the Fifth Circuit Your Honor, when it became apparent that the Fifth Circuit had turned a question on Federal Law.

These cases May it Please the Court arise from the crash of Lear Jet airplane at the DeKalb-Peachtree Airport airport, caused by ingestion of large number of starlings in both jet engines.

The starlings had been attracted to the airport by an open raw garbage dump maintained by the County alongside the only Jet runway at the airport and this garbage dump had been in existence for sometime and as the record reflects was an attraction to literally huge flocks of, tens of thousands of starlings to the Jet runway area.

Prior to the crash and under the (Inaudible) of the Federal Airport Act and related regulations of the county and the FAA, had in and into a series of six grant agreements, where about the County had received federal funds for airport improvements, including construction of the very jet runway in question in this case.

These grant agreements imposed upon the county, the following specifics safety covenants.

One; operation and maintenance of the airport in a condition ‘safe for aeronautical users,’ two; restriction of airport property to uses compatible with normal airport operations including ‘landing and takeoff of airplanes’, three; prohibition of any activity at the airport that would interfere with its use for airport purposes and four and possibly…

Warren E. Burger:

Did you say air force?

J. Arthur Mozley:

Airport purposes, excuse me Your Honor and possibly the most important is four; mitigation and removal of existing airport hazards and airport hazards being defined by Federal Law, as anything that adversely affects safety of life.

Warren E. Burger:

Now, these recitals in the statute, these are the conditions on which the federal government makes the grant.

J. Arthur Mozley:

These were recitals in the grant agreements between the FAA and the County and they are also statutory requirements under the Federal Airport Act.

Warren E. Burger:

Well, they come into the contract because they are in the statute.

J. Arthur Mozley:

Yes sir, they come into the contract because Congress required them to be there.

The petitioners based their claims against the County on basically four theories; negligent operation of the airport, maintenance of a nuisance, maintenance of a Federally prescribed airport hazard, which is the implied private claim, Mr. Justice Rehnquist that we claim we have and breach of the grant agreement safety covenants.

William H. Rehnquist:

Why does the District Court then refer to your claim as a diversity suit in the Fifth Circuit too?

J. Arthur Mozley:

We have both types of jurisdiction here, Mr. Justice Rehnquist.

We have complete diversity jurisdiction and if we have federally protected rights then we have federal questions jurisdiction also.

William H. Rehnquist:

I do not doubt it, but all I am saying is the District Court opinion refers to it as diversity litigation, the Fifth Circuit refers to it as diversity litigation.

J. Arthur Mozley:

That is correct, Yes sir.

The issues here therefore are whether…

Warren E. Burger:

But your federal question jurisdiction is linked entirely to your claim of an implied cause of action, I think if you do not have an implied cause of action then you do not have a federal…

J. Arthur Mozley:

We do not have a federal question type jurisdiction.

William H. Rehnquist:

But we would still remain with complete diversity of jurisdiction.

J. Arthur Mozley:

Yes sir, with respect to our argument based upon federal preemption, we wish to make these points.

A federal safety regulation of aeronautical interstate commerce extends to practically all phases of aviation and it specifically includes federally funded airports.

The primary purpose of federal regulation of aviation including the safety covenants involved here is to provide for the safety of interstate aeronautical travelers.

The extensive and pervasive federal regulation of aeronautical commerce by a necessity must preempt and preclude any conflicting local laws of policies.

This is simply a logical extension of this court’s rulings in Northwest Airlines, Inc. versus Minnesota, and City of Burbank versus Lockheed Air Terminal.

Application of a Local County Immunity Law, to shield the county for liability for breaches of safety covenants imposed by congress, certainly does absolutely nothing pollster or enhance the federally expressed concerns for airport safety.

To the contrary, shielding the county from liability can serve only to emasculate and burden the federally expressed concern for aeronautical safety and for safety at federally funded airports.

If you had a highway negligently built but with a Federal grant of money and joint construction project of the State and Federal Government, will the State in these circumstances be liable in charge or will it have sovereign immunity for the negligence, maintenance or construction of highways?

J. Arthur Mozley:

A lower court Your Honor has held that the State would have sovereign immunity, in a different factual situation in this case, we believe that aeronautical commerce and the extensive federal regulations of aeronautical commerce and the deep concern of the Federal Government with safety distinguishes this case from the example Your Honor I have just cited.

However a lower court has held as recited briefs that sovereign immunity would exist under the limited example, Your Honor I have just gave.

So it is our position that the doctrine of federal preemption here must preempt the county’s immunity because otherwise the safety objectives of the covenants would be completely forted.

So, I take then your position includes the notion that the federal law of government’s has controversy and you think that Court of Appeals simply made a mistake in saying that you were not entitled to sue under Federal Law here.

J. Arthur Mozley:

Yes sir.

That is exactly the opposite position for what you took in the District Court and the Court of Appeal.

J. Arthur Mozley:

Well, no sir we that is quite not correct Justice Stevens.

But you have won in the District Court on Georgia Law, did not you?

J. Arthur Mozley:

No sir, the District Court ruled against us.

The original Fifth Circuit opinion ruled in our favor and it was only really until we got to the Fifth Circuit and to the en banc majority opinion that the question of Federal Common Law really became involved in the case.

Well, the parties had overlooked it or whether the earlier courts had overlooked it remains to be same.

Well, I take that you would not if Georgia, would you concede that if Georgia — what is your position if Georgia law applies to this case?

J. Arthur Mozley:

Our position that Georgia’s Law of third-party beneficiaries is exactly the same as the Federal Law should be under Cort versus Ash under the original opinion of the Fifth Circuit that anyone who is an intended beneficiary of a safety covenant can sue for breach of contract and that such principle applies to counties.

But if we disagreed with the Court of Appeals on which law governs, I suppose we would be remand to see what the Georgia Law is.

J. Arthur Mozley:

No sir, I believe the Georgia Law has been stated in the Fifth Circuit opinion and is untouched by any reversal and that is that a County has no immunity will respect the claims arising from contracts.

It was lawfully authorized to me.

So, Judge Morgan took one position kind of had a detailed analysis, Judge Dyer took another position with a much less detailed analysis at Georgia Law.

J. Arthur Mozley:

Yes, Sir. But Judge Dyer did not disagreed with Judge Morgan’s comments that a Georgia County can be sued for breach of any contract, that was lawfully authorized to me.

But you think that panel decision is still in effect.

J. Arthur Mozley:

That aspect of the panel decision is in effect because it is in part I, II, and IV of the panel decision that was adopted by the en banc majority.

May it Please the Court, I would like to turn now briefly to the subject of our Equal Protection argument which was first made it to the Fifth Circuit and it is basically an argument that application of county immunity here or any interpretation of the county immunity statute would work the denial of equal protection.

We have this situation, under the classification scheme urged by DeKalb County.

If the County seat of DeKalb County, the City of Decatur had operated this airport, we would not be involved here.

There would be no immunity issue.

So, the result of the classification scheme urged by the county is simply that some suits against some local governmental entities can be allowed but other suits against it practical identical local government entities will respect to identical airports or disallowed.

We believe this is an unconstitutional burden on the Rights of interstate aeronautical travelers and which serve to deny them equal protection.

May it Please the Court, I would like to reserve whatever time I have.

Warren E. Burger:

Very well, Mr. Heldman.

Alan W. Heldman:

Mr. Chief Justice may it Please the Court.

I represent the Miree petitioners, there are three minor children whose father and mother were both killed as passengers on this airplane.

They are from Birmingham, the crash took place near Atlanta.

I would like to begin by responding if I may to your question Mr. Justice Rehnquist and yours Mr. Justice White with respect to the question of whether Federal Law was asserted below and whether the notion of an implied federal remedy was asserted below and I think I responded to this on the first page or so of our Reply Brief but most specifically I can refer you to joint appendix at page 21 which is part of our complaint and I am assured by our council in the related cases that there was similar language there.

At page 21 in the record, we asserted that the maintenance of the garbage dumped at the airport constituted an airport hazard is defined in several recited sections, at section 1711 is the definition of airport hazard but 1718(3) requires the aerial approaches will be protected and that adjacent land use should not be incompatible.

We think that is more than adequate assertion of federal remedies for…

It is simply your third-party beneficiary theory, is not it?

Alan W. Heldman:

Your Honor, it has no relationship to the third-party beneficiary argument and in the context of the paragraphs of the complaint, it is unrelated.

As a matter of fact the original complaint asserted to cover the waterfront; we argued the tort, nuisance contract, pleaded rather.

Warren E. Burger:

Are you talking about page 22 of the big of the big joint appendix.

Alan W. Heldman:

Page 21 Your Honor.

Warren E. Burger:

Page 21.

Alan W. Heldman:

Paragraph 28, there on.

And those section references are to the specific Federal Statutory requirements, that areal approach is being protected and that adjacent land not reused incompatibly, it had in mind various sort of situation that we have here.

The County own this airport, the County maintain an open garbage dump literally adjacent to the runway and over a period of years, they were told by the FAA that they were getting reports of flocks of birds interfering with aerial navigation, there were actual reports made from the FAA that the County of birds striking airplane yet not with fatal result and what we have is a apathetic response not to say a hostile response from the county.

Why? Simply, because the County deemed itself to be immune and there was no adequate sanction to make them take notice of this problem.

Alan W. Heldman:

So, it is not positioned that the immunity here calls these deaths. Immunity created an apathetic attitude with respect to ignoring these Federal Safety Standards and I think it is fair to say, but if this County had to recognize an absence of immunity, this would not have happened.

Thurgood Marshall:

Could it be some federal agency closed it down.

Alan W. Heldman:

Your Honor the FAA…

Thurgood Marshall:

My question was, could.

Alan W. Heldman:

My answer has to be I do not know, I can answer you to this extent Mr. Justice Marshall.

After this sad crash and after these deaths, the FAA brought a law suit to close it down and…

Warren E. Burger:

At the airport or the garbage dump?

Alan W. Heldman:

Close the garbage dump down and having up, I am afraid to go beyond the record but my impression is that that was vigorously defended and ultimately compromised, also if I may continue outside the record I think the…

You mean you would not raise an airport without Federal approval?

Alan W. Heldman:

The federal approval for say, was never withdrawn, there were threats from…

Could not it be withdrawn, could not it have been withdrawn?

Alan W. Heldman:

That I do not know Your Honor.

I mean your argument is that this immunity did it, Federal Government had little responsibility to that too, did not it?

Alan W. Heldman:

Well, we have sued the United States Your Honor and we do feel that there was our responsibility.

I want to suggest that there is a spectrum here of a reasonable possible result with area applied State Law of the Georgia third-party beneficiary exception to its general immunity doctrine being at one end of a reasonable spectrum and the implication of a federal remedy, under Cort versus Ash at the other end of a reasonable spectrum and while adopting both of those arguments, I think it might be more useful if I would develop myself primarily to the application of Federal Common Law to some or all of these issues.

The irony of the case is the majority of the panel decision below, took the case as an Erie case construed properly, Georgia Law to find this narrow contract exception to the general rule of County immunity and granted us standing.

Judge Dyer (ph) who dissented from that said “No, this is a case where serious federal interests are involved.

This is the United States as a part of the contract, United States is a defendant in the lawsuit.

This is aviation which is federally preempted, so we have got to trial those case on the Federal Common Law.

Then he went on and found that as a matter of Federal Common Law, the old restatement of contract through 145 from 1932 would give us the less liberal and a result that we kept — a standard we can not meet as third-party beneficiaries.

He ignored the recent cases including the Bossier Parish case which you Mr. Chief Justice set on the panel of with the Fifth Circuit ten or so years ago where you held that children had a standing to assert rights as third-party beneficiaries under an agreement an agreement between a County and the United States with respect to access to schools that was certainly a Federal Common Law decision.

The City of Englewood case from the Ninth Circuit is an airport grant agreement case which held that only the City of Englewood, but individual citizens there as the class could sue as third-party beneficiaries to enforce the aviation grant agreements.

So, we assert that very clearly Federal Common Law is at least as liberal on the third-party beneficiary issue as this Georgia Law and I think this is ought to be put to rest by the fact that just about ten years ago, the restatement draftsmen offered a new Section 145 which brings doctrinal third-party beneficiary concepts in line with reality and so that we know there is no significance difference between the rights of third-party beneficiaries with respect to contract which government is a party and with private.

Warren E. Burger:

Well in terms of immunity in this case, with respect to the contract claim, do you have to rely on the panel decision?

Alan W. Heldman:

In construction of George Law, if this court should deem that this is a area case, I would assert that the panel’s majority decision ought to control, that’s the correct interpretation…

Well let us assume it, is not the — assume, it’s a federal question, but let us assume that the Georgia Law is that the County is immune from contract claims.

Alan W. Heldman:

Your Honor, I do not think any judge in the court below took that decision.

Let us assume that Georgia Law is that the County is immune also from contract claim.

Alan W. Heldman:

Then I would think that that would be overpowering urgency for the court and not to consider this a mere area case because I think that would…

Well I know but let us assume we decided on the one hand that Federal Law governs this case.

Well, then we are faced with the problem that…

Alan W. Heldman:

If Federal Law governs this case, you can interpret the contract to which the United States was a party and which involves the federally preempted area of commerce, you can construe it by Federal Common Law rules…

What about the immunity of the County?

Alan W. Heldman:

That is not a constitutional issue.

There was some phrase there at the State and there was some phrase with sovereign immunity.

We do not have that.

This is Lincoln County v. Luning from this court in 1896 or 1898.

You mean this is not a 11th amendment.

Alan W. Heldman:

This is not a 11th amendment case.

This is not in State of Georgia, it is a county and the only immunity is the immunity asserted by a Georgia statute.

Now, our opponents talk about this was constitutionalized in Georgia’s constitution.

That was after the bill and is of no relevance.

This case we have here merely a Georgia statute which says that a county will be immune from tort and the Eleventh Amendment does not require this Court in a federal question case.

Warren E. Burger:

Is not that Georgia statute entitled to some kind of credits?

Alan W. Heldman:

As Your Honor suggesting full question, credit or…

Warren E. Burger:

No, I have just said some kind of credit.

Alan W. Heldman:

I think if this was an Erie case certainly so, but there is a whole lot of cases starting with Pardon from Alabama which holds that even the State itself, which on the face of it has the 11th amendment protection waive the immunity when it enters a federal sphere of commerce and it is my contention that…

Warren E. Burger:

But there has never been any question about the power to waive the immunity and many States have indeed waived…

Alan W. Heldman:

Pardon in that line of case as Mr. Chief Justice were implied waive first not…

William J. Brennan, Jr.:

You mean running the airport in and of itself, that was implied in running a railroad.

Alan W. Heldman:

That is exactly right Mr. Justice Brennan, but there are many cases, the recent Seventh circuit case Kohr involving an air crash found that Federal Common Law ought to control with respect to the various substantive issues.

They are the issues were contribution and indemnity, that they did not even have a contract as we do here.

So I would say that a fortiori here where we are interpreting a federal contract in the rights of parties under that federal contract, that Federal Common Law opt to.

Warren E. Burger:

Did you said the United States also?

Alan W. Heldman:

Yes, Your Honor.

And is that suit still pending?

Alan W. Heldman:

Yes, Your Honor…

And you sued there under the $10,000 limit of the…

Alan W. Heldman:

They are defended, the United States is defended in this action and the…

Federal Tort Claims Act.

Alan W. Heldman:

Yes Sir.

The United States also may cross claims against a case.

No that was your — did you make any assertions in the District Court or lower courts as what the controlling law was in that action?

Alan W. Heldman:

We resided compliance was the conditions preceding to the Federal Tort Claims Act and then resided the appropriate section of title 28 with respect there too and I think generally, being incorporated all of our allegations.

The original complaint was lengthy and very shortly after complaint was filed a very lengthy amendment was filed which is in the right…

Am I reading the wrong compliant on as large the joint appendix page nine, is that where the complaint begins?

Alan W. Heldman:

That is our complaint, yes sir.

Jurisdiction is based on 1346(b).

Is that it, is that the Tort Claims Act?

Alan W. Heldman:

Yeah, this Your Honor, I might say, just by way of an aside that the question came up just during briefing as to whether the United States has been dismissed from the action and the I would not elaborate here, but I think it is very clear and I did in my Reply Brief I think adequately support the contention that the claims of United States was still alive.

Any reason you know why the United States is not here?

Alan W. Heldman:

The United States is determined early on in this litigation that its interest would not be affected here by because it is the motion to dismiss had never been — the county’s motion to dismiss the United States’ have cross claims had never been ruled upon, I understand that that is still the United States.

But the breadth of the potential of these issues is such that I wonder that the United States is not in front of the court giving there views at the matter.

Alan W. Heldman:

I think, Mr. Chief Justice, the United States was simply relying upon the fact that it is that the motion to dismiss its cross claims was not granted and that is a matter of clear law.

The United States filed a memorandum and I think that is some reference to those cases are in my Reply Brief and I make it perfectly clear that the County can not assert sovereign immunity or governmental immunity vis-a-vis the United states.

So, well there maybe perhaps some confusion in the record, I think the United States is under no fear that its claims there have been jeopardized.

Yes, but you are asserting that a liability against them, your…

Alan W. Heldman:

Well that issue is not forced today.

The motion to dismiss the United States filed against our claims and not before Your Honor today.

Even if you lost here, you still have your suit against the Unites States.

Alan W. Heldman:

It is one last suit, but the only thing that is before you today is the county’s motion to dismiss the various petitioners’ original complaints.

William H. Rehnquist:

But your theory of an implied cause of action, the Federal Airport Act certainly might develop principles that could involve the United States as the defendant, could not it?

Alan W. Heldman:

That Mr. Justice Rehnquist that is something that has not come up and I am not sure I can answer that adequately, but of the top of my head I do not see why, we have an adequate remedy against the United States on the Tort Claims Act here.

The fault of the United States would be with respect of operation of the power and the failure to report to this power that there had been bird sliding.

Would it include the failure of the United States to close this airport down as a hazardous place on your theory of the case?

Alan W. Heldman:

It could.

Mr. Heldman, I hate to ask this question, but is there a case still pending in the District Court against United States and if there is, was there a ruled order entered pursuant to Rule 54 (b) making this a proper appeal?

Alan W. Heldman:

Your Honor the claims against the United States are still pending, the claims of the petitioners against DeKalb County went up under 1292 (b) and on that I certify interlocutory matter.

I would like to close by bringing back my emphasis to the middle of this spectrum away from an implied federal remedy on the one hand and away from the contract concept on the other hand into the notion that the court can resolve this matter by applying proper principles of Federal Common Law here.

Both proper principle of Federal Common law with respect to the rights of third-party beneficiaries and also a principle that Federal Common Law will not embrace archaic doctrine of immunity for a party which contracts with the United States in a preempted area of commerce specifically aviation where the whole thrust of the statutory scheme and the whole thrust of the contract is safety.

Alan W. Heldman:

If you read this record, you will see that it is not a philosophical statement to say that immunity caused this air crash.

I see that my time is up, thank you.

Just one question, you mentioned the Pardon case, do you consider the operation of railroad in Pardon as a complete parallel to the Federal Regulation of all airports?

Alan W. Heldman:

In Pardon on the one hand, you have the state itself deemed to have waived its immunity by entering the area, our case is a fortiori.

On the other hand, that was an FELA question in Pardon and I think that that phase of the case was easier than the…

Warren E. Burger:

But that was on the old concept for the proprietary aspect of the railroad, was it not in part.

Alan W. Heldman:

I do not recall that it went on a proprietary governmental distinction in any of it’s, the operation of the airport.

William J. Brennan, Jr.:

I am quite sure it did not…

Alan W. Heldman:

I believe he wrote that opinion Mr. Justice Brennan, thanks.

F. Clay Bush:

Mr. Chief Justice, May it Please the Court. I am here on behalf of the DeKalb County and there are multitude question that this court has presented, but let me go ahead with what I’ve prepared as and it will probably bring in some of the question which you all have raised to the various opposing council.

Warren E. Burger:

You can do well if you can avoid questions by a statement like that.

F. Clay Bush:

Let me point out that in the initial panel opinion, as raised by the dissent by a Circuit Judge Dyer.

He stated in a footnote that if Georgia Law applied to this case, it would change the result and that footnote along with the dissenting opinion was adopted, by eight judges of the Fifth Circuit.

Now, we are here before this court today, not on any 54 (B) certification, we are here because the judgment entered for DeKalb County.

An appeal was taken from that judgment in approximately late September, 1974.

Two opinions were entered by District Judge William C. O’Kelley, the first one in June of 74 and in that first one; he basically stated his opinion that DeKalb County was immune from suit if the Diversity law applied.

But these cases are still pending against some other parties…

F. Clay Bush:

There was Mr. Mozley who is here to argue about on behalf of Fireman’s Fund, Southeast machinery and machinery buyers, the various defendants and plaintiffs he represents in dual positions, a motion for reconsideration.

The court reconsidered it, entered its opinion on I believe September 25, 1974.

Then entered judgment for DeKalb County by which an appeal was taken.

There are no cross-claims we contend pending against this right now, the suit is here upon a proper judgment entered on behalf of DeKalb County and it was appealed…

54 (b) has anything to do with that?

F. Clay Bush:

He did entered pursuant to 54 (b) we directed the clerk to enter judgment on behalf on DeKalb County and judgment was entered and it is in the appendix Your Honor.

Now, if I may proceed…

And did the District Court say there was not any reason for delay?

F. Clay Bush:

I believe he may have Your Honor, but a judgment was entered, in his opposition.

It was not meant to subsequently to delete one individual.

They had been included in which should not been.

If this Court should consider Georgia Law, we would direct this court’s attention to particularly the decisions that have occurred, since Judge William C. O’Kelley who we contend had his pulse upon Georgia Law and we would show this court that in January of 1975, the Supreme Court of Georgia in Azizi and in Shelly had before the situation where they were going to review the constitutional immunity doctrine again.

There, they had situations and occurrences and acts that have occurred before the constitutionalization of this immunity rule and here they said, that it is no longer open to abrogation by the Supreme Court of Georgia because it is a matter that has been a part the Constitution of Georgia, it has been ratified by the people, it has been passed by the Legislature of Georgia, has been examined by the Executive Branch, the State Government of Georgia.

F. Clay Bush:

Therefore, it is no longer open to the judicial abrogation by Georgia Court or by a construing Georgia Law.

Now, in the later part of January of 1975, in William v. Georgia Power, it was a matter involving Hancock County and in that case there had been allegation of nuisance and allegation of third-party intended to beneficiary, to an agreement between Georgia Power and Hancock County, in the plaintiff said that they were third-party beneficiaries.

Supreme Court of Georgia said, “No, immunity” to both third-party beneficiary and to theories of nuisance.

In October of 75, in Revels versus Tift County, we had a slip and fall, a simple negligence action in a County Court House of the Tift County, no immunity.

In March of 1976, now this was after the panel opinion, where we strenuously disagreed with what judge Morgan stated, as what he considered to be the Law of Georgia on third-party beneficiary.

Approximately two months after that panel opinion, in March of 76 in a case of Backus versus Chilivis , there was a situation where a person had contacted with Glynn County Georgia, which is down near Brunswick and in that case, the plaintiff said, “Why am a third-party beneficiary of that contract?”

Supreme Court said, “No, that person was not an intended beneficiary” and it stated that no citizen is a third-party beneficiary of the government contract.

Then more recently, in February of this year, the Supreme Court of Georgia had a State Department of the State Government of Georgia, contracting with the health facilities services on Medicaid payments, they promulgate certain regulations wherein they say that, there are maximum reimbursement sealing and these maximum reimbursement sealing cause them some money and plaintiff sued and Supreme Court of Georgia said, “I am sorry, we have immunity.

You’ve sued the State in that particular instance, the state has not agreed to pay you damages or waive its immunity and since it stands before us with immunity, we must apply it.

Mr. Bush, are you arguing if we should conclude that Georgia Law controls that we should decide the Georgia Law question or should we send it back to the Court of Appeals to decide that?

F. Clay Bush:

I do not really seek to advice the court on which position it should take, it is clear to me Your Honor that Georgia Law, if it is applied by this court or by the Fifth Circuit, we would clearly hold DeKalb County immune from the suit and as well as the third-party beneficiary arguments would find that the county…

It was not clear that the majority of the panel in the Court of Appeals.

F. Clay Bush:

There was some disagreement and it was…

Well, in that disagreement they squarely held against to you.

F. Clay Bush:

Well, they squarely held on the theory of applying two cases which those two cases were subsequently two months later in Backus versus Chilivis distinguished.

They applied a case called Smith v. Ledbetter bros. which was a case where they suit a person who had done some roadway construction and a highway traveler as a suggestion of Chief Justice was injured and they sued the individual who had actually done the work and the Court of Appeals of Georgia said, “Well that was a proper theory of recovery.”

Now, the Supreme Court of Georgia, that was a fairly old case, and Supreme Court of Georgia in March of 76 said, “That case, it simply does not apply this is ensuing people who have contracted with the government or the government itself.

That maybe the third-party, in most case maybe related to the third-party beneficiary matter but is that the same question as immunity?

F. Clay Bush:

We contend it is two fold Your Honor.

Yes, I thought we think so and what about the Georgia Law and immunity of the County?

F. Clay Bush:

We contend Your Honor that we are still immune particularly because of the constitutionalization of immunity rule that we have referred to in our brief.

It is now a situation and as expressed in October 75 by the Supreme Court of Georgia in Revels versus Tift County that was a specific case where there was a slip and fall in the County Court House and a simple negligence action against Tift County and they said, “County is now immune from suing and its (Inaudible).

The Fifth Circuit does not seem to agree with you.

F. Clay Bush:

There was also a member of the majority opinion, who adopted that footnote of Judge Dyer that, Judge Haire (ph) was also a Georgia Judge.

So, we have a situation where one Georgia Judge from the Fifth Circuit was saying one thing and one Georgia Judge was saying another.

But I will state to you Your Honor, that a panel opinion…

What about we non-Georgia judges?

F. Clay Bush:

I would suggest to you Your Honor that the panel opinion failed to their cognizance and failed to realize after the panel opinion and when the time of the en banc of the opinion was written of the Backus versus Chilivis decision, I would as simply commend that to Your Honor’s attention.

What if we decided that Federal Law applies, then what about immunity?

F. Clay Bush:

We have contend Your Honor, there is no case that I have seen from this court that deals with that issue.

F. Clay Bush:

There is a Fifth Circuit case called McCord versus Dixie Aviation, which says that states sovereignty is unimpaired in the aviation area.

At this point I would like to call Your Honor’s attention to a decision of…

State sovereignty, what about this County immunity?

That is not state.

F. Clay Bush:

Well Your Honor it is our contention that it is not only a state statutory immunity but it is a state constitutional immunity…

Maybe, but still a State is not in Eleventh Amendment.

F. Clay Bush:

Well, it was our position in the brief and it is still our position…

Well, it’s not Eleventh Amendment.

F. Clay Bush:

Well, we are not suggesting the State of Georgia is involved in this case.

We are suggesting that multitude.

But the County immunity is certainly in Eleventh Amendment.

F. Clay Bush:

Well, we would completely agree that the Lincoln County v. Luning is positive of that issue.

In that particular case and I reviewed that Lincoln County, it was a particular County in Nevada, I believe, Your Honor and that was a County that was apparently drafted as a municipality as in Georgia.

In Georgia counties are considered arms of the state.

We decided the Supreme Court of Georgia decision on that particular point.

Well California made that argument in Moor v. Alameda County too and we rejected it.

F. Clay Bush:

Well, it is my position also as well that these are situations where the allegations multiply even of these present petitioners is into the tens of millions of dollars, as far as damaged suits and this is simply a situation where the county has no capability and we would have no capability under the government immune to pay for such judgments and a plead would have to be made to the general assembly of Georgia to pay these judgments and there under Edelman v. Jordan in Your Honor’s opinion, we may commend to the Eleventh Amendment because the state maybe called upon through its general treasury to pay for these particular judgments.

But the state could surely just decline to appropriate the money.

F. Clay Bush:

They certainly could Your Honor, but that would be their decision in our regard but I am not completely agreeing that Eleventh Amendment is not applied.

McCord case cited in your agreement.

F. Clay Bush:

It is, Your Honor.

You have it, even I have mine.

Mine is red color, Your Honor.

Anybody get rid of that nuisance of this airport, if the county has immune.

F. Clay Bush:

I do not agree that what Mr. Heldman said that, the suggestion is that the County refused to doing anything about, because they were immune.

The County all during this time was trying to find the place to put its County garbage.

It is a Semi-Urban County and it’s a situation where no one in the County wants the garbage dumped next door to them.

It is a situation of placement disposal of garbage.

If the county had to pay a few million dollars in damages they might get interest.

F. Clay Bush:

It certainly might Your Honor.

F. Clay Bush:

It is already been alleviated.

Let me point out to the Court as to the federal question that’s present.

This court through Justice Stewart unanimously held in a case that I by my own mistake have not directed this Court’s attention to, a case called Executive Jet Aviation versus City of Cleveland.

That is 409 US, 249 and 34 L.Ed. 454.

That case also was a bird ingestion case.

In that case, there was Charter Flight arising of Cleveland, Ohio and it took off and start off towards Lake Erie and ingested some goals crashed in Lake Erie.

A suit was filed Ohio federal Court.

Not alleging diversity because there was no diversity.

They filed to base upon Theory of Admiralty and upon the Theory of the Death of the High Seas Act for obvious reasons; there is no Federal Wrongful Death Action, explicit in any of the aviation statutes.

This court dealt greatly with the admiralty questions but at the conclusion of dealing with the admiralty issues, I think Justice Stewart for unanimous court made an expression that is completely applicable to this case and to the federal issues that have been raised.

In the situation before us which is only fortuitously and incidentally connected to navigable waters and which bears no relationship to traditional maritime activity.

The Ohio Courts could plainly exercise jurisdiction over the suit and could plainly apply familiar concepts of Ohio Tort Law without any effect on maritime endeavors.

It may be as petitioners argued, that aviation tort cases should be governed by uniform substantive and procedural laws and it such action should be heard in the Federal Courts so as to avoid the diversion results and duplicities litigation in multiparty cases.

If federal uniformity is the desired goal with respect to claims arising from aviation accidents, Congress is free under the Commerce Clause to enact legislation applicable to all such accidents whether occurring on land or water and adapted to the specific circumstances of their commerce.

I cite also with regards to that a bill that was introduced by Senator Tydings in 1969.

I have cited in my brief.

Senator Tydings suggested in his bill thought that there should be exclusive federal jurisdiction, a federal cause of action and a federal remedy for Aviation Act.

The case though had substantial testimony in hearings was never reported out of committee.

It never got anywhere. The reason is because there is a body of State Law to apply and we contend that this State Law protects us in this respect.

Again, the suggestion that there are safety requirements that these safety requirements should be recognized by this court and thus create a private cause of action.

Congress has that right.

Congress has that ability and Congress has not created a private cause of action, a private remedy.

Private remedy for wrongful death, which is unrecognized and we contend this Court should not imply such a remedy from a sovereign legislation and in an Executive Jet Aviation case, they refused to, in a bird ingestion case.

The citation of the City of Englewood case, we contend this, out of the Ninth Circuit and the alleged conflict in the federal circuits between the fifth and the ninth circuit that City of Englewood case is an eminent domain case.

They recite particular facts. There was no injuries involved, no wrongful death, nothing such as that and they also distinguished because they say that non aeronautical users were involved. Here these people contend, they are aeronautical users.

So they recite those authority cases that do not even have a factual basis really.

Are there any other question?

We are nearing 12 and out.

But I am concluded with my argument; if the court has any other questions.

Thank you, Your Honor very much.

Warren E. Burger:

Certainly not.

J. Arthur Mozley:

May it Please the Court, I would like to respond briefly to council’s arguments, that the county has immunity of the contracts claims.

Warren E. Burger:

Mr. Mozley, your time has actually expired but we will give you till 12 o’clock.

J. Arthur Mozley:

Alright, thank you very much Your Honor.

(Inaudible) your friend’s time.

Thank you.

On page a 22 (a) of our petition for sir, we incorporated the decisions in the courts below and I want to call attention to this court to the facts that in the initial panel opinion Judge Morgan of the Fifth Circuit said, talking about the Southern Airways versus DeKalb County case involving this precise airport, the court rule is since the Georgia Uniform Airport Law expressly authorizes a county to contract, “The logical inference of that statute is that the County maybe sued for breach of contract.

This is consistent with several other Georgia decisions which hold that statutory authority to contract is necessarily a statutory waiver of immunity to suit for breach.”

Warren E. Burger:

What contract was he referring to do you think?

J. Arthur Mozley:

The contract in this case was a contract authorized by the Uniform Airport’s Law which is same type of contract we have here Your Honor, of FAA, Grant Agreement.

So the Georgia Law on immunity is that, “Immunity for a county does not extend to suits based upon contractual obligations.” And as Mr. Bush had pointed out…

Warren E. Burger:

The en banc majority and a footnote disagree with that?

J. Arthur Mozley:

No, sir the majority in the footnote simply said, “We believe that under Georgia Law, the result would be the same because under Georgia law, these petitioners are not indented beneficiaries.

It was question of whether we were intended beneficiaries not an immunity question.

Thank you.

Warren E. Burger:

Thank you, gentleman.

The case is submitted.