     Case: 12-50840       Document: 00512150329         Page: 1     Date Filed: 02/21/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 21, 2013

                                     No. 12-50840                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



LOUIS P. MCCASLAND, JR.; JOAN T. MCCASLAND; CASTROVILLE
AIRPORT, INCORPORATED

                                                  Plaintiffs - Appellants
v.

CITY OF CASTROVILLE

                                                  Defendant-Appellee



               Appeal from the United States District Court for the
                            Western District of Texas
                                 5:11-CV-506


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiffs brought a 42 U.S.C. § 1983 action in federal court alleging that
the city of Castroville had deprived them of property without due process of law,
in violation of the Fourteenth Amendment. Specifically, Plaintiffs alleged that
Castroville had denied them the right to continue leasing property at the
Castroville Municipal Airport. The district court dismissed Plaintiffs’ first


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                    No. 12-50840

amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), holding
that Plaintiffs’ allegations did not establish that they had any cognizable
property interest in the airport premises. Plaintiffs timely appealed.
        “The threshold requirement of any due process claim is the government’s
deprivation of a plaintiff’s liberty or property interest.” DePree v. Saunders, 588
F.3d 282, 289 (5th Cir. 2009). “Property interests, of course, are not created by
the Constitution. Rather they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as
state law–rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.” Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 577 (1972).
        On appeal, Plaintiffs maintain that their property interest consists of their
“reasonably founded expectation that the airport would be made available for
public use without unjust discrimination.” Plaintiffs do not argue that they have
any legally enforceable interest in the airport itself. In fact, there is no dispute
that their lease of the airport property expired on April 1, 2010, after which they
were evicted. The essence of Plaintiffs’ argument is that the city must use fair
and non-discriminatory procedures in determining whether to grant airport
leases, and that the city has not done so in dealing with them. This is a concern
with procedure, not with substance. Plaintiffs’ arguments go to how or why they
were denied a continued lease, but this elides the threshold question. Unless
Plaintiffs have an entitlement to an airport lease that is sufficiently definite to
be considered a property interest, the Due Process clause does not come into
play.
        Plaintiffs note that federal grants and land transfers to airports are
generally conditioned on the airports being available for public use on reasonable
conditions and without unjust discrimination, among other conditions. For
example, the Secretary of Transportation may approve an airport development

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                                  No. 12-50840

grant only upon receiving assurances that “the airport will be available for
public use on reasonable conditions and without unjust discrimination.” 49
U.S.C. § 47107(a)(1). As explained in Federal Aviation Administration Order
5190.6B, this requires that airport space be made available to “those willing and
qualified to offer aeronautical services . . . or support services” and to
“noncommercial aeronautical users.” Additionally, the 1949 deed by which the
United States conveyed the airport land to Castroville includes a promise by
Castroville to use the airport “for public airport purposes for the use and benefit
of the public, on reasonable terms and without unjust discrimination.” Plaintiffs
do not seek to advance direct causes of action under these provisions, but rather
contend that they provide “evidence” of a property-like entitlement to use of the
airport.
      We conclude that the agreements between the United States and the city
of Castroville described above do not endow Plaintiffs with any property interest
recognized by the Fourteenth Amendment. As several circuit courts have held,
and as Plaintiffs appear to concede, 49 U.S.C. § 47107 and its predecessor
statute do not create a private right of action for parties aggrieved by alleged
discrimination. See, e.g., Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108
F.3d 909, 915 (8th Cir. 1997); Northwest Airlines, Inc. v. County of Kent, 955
F.3d 1054, 1058-59 (6th Cir. 1992); Interface Group, Inc. v. Mass. Port Authority,
816 F.2d 9, 15 (1st Cir. 1987). We recognize that an administrative enforcement
scheme exists through which a complainant may challenge a federally assisted
airport’s non-compliance with federal obligations. See generally 14 C.F.R. §§
16.1-.247. Nevertheless, because third parties such as Plaintiffs stand to receive
only indirect or incidental benefits from any administrative enforcement action
against a non-compliant airport, this administrative enforcement scheme does
not vest property interests in third parties. See Town of Castle Rock v. Gonzales,
545 U.S. 748, 767-68 (2005).

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      Plaintiffs also contend that they have a liberty interest in “be[ing] given
equal opportunities as others in the community are given to contract and/or
lease said property.” Plaintiffs correctly note that the Supreme Court has held
that the “liberty” guaranteed by the Fourteenth Amendment includes “the right
of the individual to contract” and “to engage in any of the common occupations
of life.” Roth, 408 U.S. at 572. However, Castroville has not impaired the rights
of Plaintiffs to enter into contracts – it has simply refused to enter into a
particular contract that Plaintiffs have proposed. Similarly, Castroville has
impaired Plaintiffs’ right to engage in their aeronautical services profession only
in an indirect sense, by refusing to lease them property that they would prefer
to use. Plaintiffs remain free to engage in their chosen profession at locations
other than the Castroville Municipal Airport. Importantly, Castroville has not
imposed any type of onerous regulation upon Plaintiffs. Rather, acting as a
market participant, Castroville has merely refused to enter into a commercial
transaction with Plaintiffs. Plaintiffs provide no authority recognizing a liberty
interest similar to that which they propose.
                                CONCLUSION
      Because Plaintiffs’ allegations do not establish an infringement of any
property or liberty interest, we AFFIRM the judgment of the district court.




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