                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                       File Name: 09a0128p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                             X
                                              -
 BOWLING GREEN AND WARREN COUNTY

                      Plaintiffs-Appellants, --
 AIRPORT BOARD, and GEOFF FIELDS,

                                              -
                                                                  No. 08-5353

                                              ,
                                               >
                                              -
          v.

                                              -
                                              -
 MARTIN LAND DEVELOPMENT CO., INC., and
                                              -
 CO-MAR AVIATION, INC.,
                     Defendants-Appellees. -
                                             N

                         Appeal from the United States District Court
                   for the Western District of Kentucky at Bowling Green.
                   No. 07-00018—Joseph H. McKinley, Jr., District Judge.
                                     Argued: March 13, 2009
                               Decided and Filed: April 1, 2009
                                                                                              *
        Before: BATCHELDER and CLAY, Circuit Judges; COX, District Judge.

                                       _________________

                                            COUNSEL
ARGUED: Christopher Todd Davenport, BRODERICK & ASSOCIATES, Bowling
Green, Kentucky, for Appellants. Timothy L. Mauldin, BELL, ORR, AYERS &
MOORE, Bowling Green, Kentucky, for Appellees. ON BRIEF: Christopher Todd
Davenport, David F. Broderick, BRODERICK & ASSOCIATES, Bowling Green,
Kentucky, for Appellants. Timothy L. Mauldin, William T. Wade, Jr., BELL, ORR,
AYERS & MOORE, Bowling Green, Kentucky, for Appellees.




         *
           The Honorable Sean F. Cox, United States District Judge for the Eastern District of Michigan,
sitting by designation.


                                                   1
No. 08-5353         Bowling Green and Warren County Airport                           Page 2
                    Bd. et al. v. Martin Land Dev. Co. et al.


                                   _________________

                                        OPINION
                                   _________________

        CLAY, Circuit Judge. Plaintiffs, the Bowling Green and Warren County Airport
Board (“Airport Board”) and Geoff Fields (“Fields”), appeal from the district court’s
decision granting summary judgment in favor of Defendants, Martin Land Development
Company, Inc. (“Martin”) and Co-Mar Aviation, Inc. (“Co-Mar”). The district court
granted summary judgment in favor of Defendants on the ground that 49 U.S.C. § 40103
does not imply a private right of action. Although other circuits have addressed the
issue, this is a matter of first impression for this Court. For the reasons set forth herein,
we AFFIRM the judgment of the district court.

                                             I.

        In December 1998, the Airport Board entered into a Lease Agreement with
Martin and a related Contract for Fixed Base Operations (“FBO”) with Co-Mar
Aviation. A conflict subsequently arose between Defendants and the Airport Board
concerning the nature and extent of the Lease Agreement. Specifically, the parties
disagreed as to whether the lease entitled Defendants to claim an exclusive leasehold
interest in certain ramp and apron space for aircraft parking. Disputing Defendants’
reading of the lease, the Airport Board directed Defendants to cease and desist their
efforts to charge ramp fees for the disputed areas. Defendants responded by filing a
declaratory judgment action in the United States District Court for the Western District
of Kentucky seeking recognition of their exclusive leasehold interest in those areas of
the airport.

        Defendants’ complaint alleged the existence of several issues of federal law,
including issues under 49 U.S.C. § 40103. Arguing that the claims involved nothing
more than a dispute over the terms of the lease, the Airport Board moved to dismiss the
complaint for lack of jurisdiction. Defendants asserted that the claims under § 40103
No. 08-5353         Bowling Green and Warren County Airport                           Page 3
                    Bd. et al. v. Martin Land Dev. Co. et al.


conferred federal question jurisdiction in the district court Agreeing with the Airport
Board’s position, the district court dismissed the action.

         Martin Land and Co-Mar then turned to the Kentucky state courts seeking
recognition that the Lease Agreement granted them exclusive use of the disputed areas
of the airport. On July 7, 2003, after extensive discovery and a bench trial, the state trial
court entered judgment in favor of the Airport Board, concluding that the premises
leased to Martin “consist solely of the FBO building, the landscaped grounds and
walkways surrounding the exterior of the FBO building, and the canopy and ramp space
beneath the canopy.” (J.A. 115.) The trial court thus rejected Defendant’s claim of
exclusive use of the ramp and apron adjacent to the FBO building.

         On appeal, the Kentucky Court of Appeals reversed, holding that the Lease
Agreement plainly and unambiguously granted Defendants an exclusive leasehold
interest in the disputed ramp and apron areas. The Court of Appeals remanded the case
back to the trial court for determination of the dimensions of the leasehold area, the
amount of compensatory damages, and whether Defendants were entitled to attorneys’
fees.

         Following entry of the Court of Appeals’ judgment, the Airport Board moved the
Supreme Court of Kentucky for discretionary review. That court denied review.
Following the denial of review, the decision of the Court of Appeals became final and
the matter moved back to the trial court for resolution of the remand issues. The Airport
Board then moved for resolution of the “issues of federal law” that the Airport Board
contends were not resolved by the Court of Appeals’ decision, including whether 49
U.S.C. § 40103 precluded granting exclusive use of the disputed areas to Defendants.
The trial court denied the Airport Board’s motion, effectively declining to address that
issue.

         On January 24, 2007, the Airport Board and Fields, a pilot who uses the airport,
filed the instant action in federal district court seeking resolution of those outstanding
federal issues, alleging, among other things, that Defendant’s exclusive use claim
No. 08-5353        Bowling Green and Warren County Airport                         Page 4
                   Bd. et al. v. Martin Land Dev. Co. et al.


violates 49 U.S.C. § 40103(e). On March 13, 2007, Martin and Co-Mar filed a motion
to dismiss or, in the alternative, for summary judgment. On November 29, 2007, after
briefing and argument, the district court entered judgment in favor of Defendants,
concluding that 49 U.S.C. § 40103 does not provide a private right of action. In reaching
that conclusion, the district court was persuaded by the “overwhelming authority” from
other circuits holding that § 40103 does not provide an implied private cause of action.
Bowling Green & Warren County Airport Bd. v. Martin Land Dev. Co., Inc., No.
1:07cv18-M, 2007 U.S. Dist. LEXIS 87885, at *6-7 (W.D. Ky. Nov. 29, 2007).

       After the district court denied the Airport Board’s motion for reconsideration,
this timely appeal followed.

                                           II.

       Generally, this Court reviews a district court’s decision granting summary
judgment de novo, using the same Rule 56(c) standard as the district court. See White
v. Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). Because the district
court’s decision turned on its interpretation of a federal statute, however, this Court
reviews that question of law de novo. See United States v. Spinelle, 41 F.3d 1056, 1057
(6th Cir. 1994) (citing United States v. Brown, 915 F.2d 219, 223 (6th Cir. 1990) (“A
district court engages in statutory construction as a matter of law, and we review its
conclusions de novo.”)).

                                           III.

       In relevant part, 49 U.S.C. § 40103 precludes “exclusive rights” at certain airport
facilities, stating: “A person does not have an exclusive right to use an air navigation
facility on which Government money has been expended.” 49 U.S.C. § 40103(e). The
language of § 40103(e) does not explicitly provide for a private cause of action, nor does
any other provision of the statute. Thus, the only basis for asserting a claim under that
provision would be that the statute implies a private right of action.
No. 08-5353        Bowling Green and Warren County Airport                             Page 5
                   Bd. et al. v. Martin Land Dev. Co. et al.


       In Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court set forth four factors that
“are relevant” in “determining whether a private remedy is implicit in a statute not
expressly providing one.” Id. at 78. According to Cort, courts must consider:

       First, is the plaintiff “one of the class for whose especial benefit the
       statute was enacted” . . . – that is, does the statute create a federal right
       in favor of the plaintiff? Second, is there any indication of legislative
       intent, explicit or implicit, either to create such a remedy or to deny one?
       . . . Third, is it consistent with the underlying purposes of the legislative
       scheme to imply such a remedy for the plaintiff? . . . And finally, is the
       cause of action one traditionally relegated to state law, in an area
       basically the concern of the States, so that it would be inappropriate to
       infer a cause of action based solely on federal law?
Id. at 78 (citations omitted). As the Court subsequently explained, however, the factors
enumerated in Cort do not demand equal consideration. Rather, “[t]he central inquiry
remains whether Congress intended to create, either expressly or by implication, a
private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979).
Indeed, since the issuance of Cort, “the Supreme Court has refined this inquiry [to
clarify that] the focal point is whether Congress, expressly or by implication, intended
to create a private cause of action.” Parry v. Mohawk Motors of Mich., Inc., 236 F.3d
299, 308 (6th Cir. 2000) (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444
U.S. 11, 15-16 (1979), and Touche Ross, 442 U.S. at 575); see also Gonzaga Univ. v.
Doe, 536 U.S. 273, 283 (2002) (noting that courts “must first determine whether
Congress intended to create a federal right” (emphasis in original)).

       In other words, although Cort “articulated a four-part test to determine whether
an implied right of action exists in a federal statute,” Parry, 236 F.3d at 308, subsequent
decisions have made clear that congressional intent is the “determinative factor.”
Thompson v. Thompson, 484 U.S. 174, 189 (1988) (Scalia, J., concurring) (“We
effectively overruled the Cort v. Ash analysis in Touche Ross . . . and Transamerica . . .,
converting one of its four factors (congressional intent) into the determinative factor.”).
The remaining three Cort factors “are relevant [only] insofar as they assist in
determining congressional intent.” Parry, 236 F.3d at 308; accord Local 3-689, Oil,
No. 08-5353        Bowling Green and Warren County Airport                              Page 6
                   Bd. et al. v. Martin Land Dev. Co. et al.


Chem. & Atomic Int’l Union v. Martin Marietta Energy Sys. Inc., 77 F.3d 131, 134 (6th
Cir. 1996) (“The Cort factors are simply tools to divine the intent of Congress in the
event of statutory silence.”). Accordingly, absent congressional intent to create a private
remedy, “a cause of action does not exist and courts may not create one, no matter how
desirable that might be as a policy matter, or how compatible with the statute.”
Alexander v. Sandoval, 532 U.S. 275, 287-88 (2001).

                                            IV.

       Although this appeal presents a matter of first impression in this circuit, at least
two other circuits have addressed the issue. The First Circuit in Interface Group, Inc.
v. Massachusetts Port Authority, 816 F.2d 9 (1st Cir. 1987), and the Second Circuit in
Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir. 1986), both concluded
that 49 U.S.C. § 1349(a), the precursor to § 40103, did not provide an implied private
right of action. Significantly, both decisions noted the utter lack of congressional intent
to provide a private right of action. See Interface Group, 816 F.2d at 14-15; Montauk-
Carribean Airways, 784 F.2d at 97. Although we are not bound by those decisions, they
are highly persuasive, see Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502
F.3d 545, 553 n.6 (6th Cir. 2007) (“[W]hile analogous decisions from our sister circuits
are not binding, we have repeatedly recognized their persuasive authority.”), especially
as to the determination of Congress’ intent.

       In holding that 49 U.S.C. § 40103 does not provide a private cause of action, the
First Circuit concluded that the statutory framework and legislative history actually
evince Congress’ intent to deny a private right of action:

       There is nothing in the legislative history that suggests any intent to
       create a private right of action. At the same time, the statute as a whole
       provides an administrative and judicial enforcement scheme that suggests
       at least some Congressional wish for an element of administrative
       expertise at the enforcement stage, an expertise that tends to be lost when
       private parties can enforce the statute directly in federal court. This latter
       view is reinforced by the reference to the Secretary of Transportation in
       the first quoted sentence and by the fact that Congress created an express
       private right of right of action elsewhere in related provisions of the
No. 08-5353         Bowling Green and Warren County Airport                            Page 7
                    Bd. et al. v. Martin Land Dev. Co. et al.


        statute, but not here. See 49 U.S.C. App. § 1487 (1982) (creating a
        private right of action for violations of § 1371(a) of the same Act). Thus,
        if anything, the statute manifests legislative intent to deny, not to grant,
        a private right of action.
Interface Group, 816 F.2d at 14-15. The Second Circuit reached the same conclusion,
noting that “the legislative history of [the statute] contains no suggestion that Congress
intended to create an implied private right of action.” Montauk-Caribbean Airways, 784
F.2d at 97.

        In accord with the decisions of our sister circuits, we also conclude that Congress
did not intend § 40103 to provide a private cause of action. Indeed, none of the
considerations that guide our inquiry points in favor of implying a private right of action.

        Contrary to Plaintiffs’ claim that the purpose of the statute cannot be effectuated
without implying a private cause of action, § 46101(a)(1) permits private parties to file
a complaint with the Secretary of Transportation or the Administrator of the Federal
Aviation Administration in the event that a violation of the statute, including § 40103(e),
has occurred. See 49 U.S.C. § 46101(a)(1). And pursuant to § 46106, the Secretary or
Administrator may bring a civil action to enforce the statute. See 49 U.S.C. § 46106.
In addition, under § 46107, the Attorney General also may bring an action to remedy any
violation of the statute and/or prosecute any offending parties. See 49 U.S.C. § 46107.
Significantly, however, the statute lacks any provision suggesting in any way that private
parties may bring civil actions under the statute.

        The creation of this administrative enforcement framework strongly suggests that
Congress did not intend to imply a private right of action. See American Federation of
State, County & Municipal Employees Local 506 v. Private Industry Council of
Trumbull County, 942 F.2d 376, 380 (6th Cir. 1991) (noting that “provision of a
comprehensive administrative procedure may indicate congressional intent against
implying a private right of action” (internal quotation marks and citation omitted)). Nor
is there any other indication that Congress intended a contrary interpretation of the
statute, especially considering that the language of the statute did not “explicitly confer[]
No. 08-5353         Bowling Green and Warren County Airport                          Page 8
                    Bd. et al. v. Martin Land Dev. Co. et al.


a right directly on a class of persons that included the plaintiff in the case.” Cannon v.
University of Chicago, 441 U.S. 677, 690 n.13 (1979). In fact, as the district court
properly points out, the decisions of our sister circuits “finding that § 40103 contained
no private right of action were decided prior to 1994, when the statute was last amended.
If Congress had intended to create a private right, it could have done so at that time.”
Bowling Green, 2007 U.S. Dist. LEXIS 87885, at *11.

        Against this comprehensive administrative enforcement scheme, and the
persuasive decisions of our sister circuits, Plaintiffs offer no evidence of Congress’
intent to provide a private right of action. Indeed, Plaintiffs’ opening brief does not even
mention the holdings of Interface Group and Montauk-Caribbean Airways, let alone
identify any legislative history suggesting that Congress intended to create a private right
of action. Rather, Plaintiffs rely mainly on the purported lack of other remedies to assert
that Congress must have intended to permit private parties to bring civil actions under
the statute. Not only is that claim without merit, see 49 U.S.C. §§ 46101, 46106, 46107,
but, as the Supreme Court has recognized, “the fact that a federal statute has been
violated and some person harmed does not automatically give rise to a private cause of
action in favor of that person.” Cannon, 441 U.S. at 688.

        Plaintiffs also argue that the other Cort factors favor finding an implied right of
action. But, as the Supreme Court has observed, courts have been “especially reluctant”
to imply causes of actions under statutes that are intended merely “for the benefit of the
public at large,” rather than a particular “class of persons that included the plaintiff in
the case.” Id. at 490 n.13. In any event, regardless of whether the remaining Cort
factors favor Plaintiffs’ claim, we agree with the First Circuit’s conclusion that “these
are minor factors that, here, cannot make a legal difference. Indeed, the Supreme [C]ourt
has said that a private right of action should not be implied on the basis of [the third and
fourth Cort] factors alone.” Interface Group, 816 F.2d at 15 (citing Transamerica, 444
U.S. at 23, and Touche Ross, 442 U.S. at 575-76). Thus, our analysis confirms that it is
“not compatible with the purpose and context of the legislative scheme to infer a private
cause of action.” Thompson, 484 U.S. at 183.
No. 08-5353     Bowling Green and Warren County Airport         Page 9
                Bd. et al. v. Martin Land Dev. Co. et al.


                                      V.

      We therefore AFFIRM the judgment of the district court.
