Case: 14-11401     Date Filed: 09/21/2015   Page: 1 of 25


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-11401
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:12-cv-22304-MGC



AMERIJET INTERNATIONAL, INC.,
a Florida corporation,

                                                   Plaintiff - Appellant,

versus

MIAMI-DADE COUNTY, FLORIDA,
a political subdivision of the State of Florida,
                                                   Defendant - Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                (September 21, 2015)
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Before JORDAN, JULIE CARNES, Circuit Judges, and GOLDBERG, * District
Judge.


PER CURIAM:

      Long before the current debate on minimum wage began, Miami-Dade

County joined a growing number of municipalities in the country by enacting a

“living wage” ordinance. Such laws typically require city or county contractors to

pay their employees wages that are often higher than the applicable federal or state

minimum rates, and are designed to help workers meet their basic needs – such as

food, shelter, and medical care – without reliance on government programs. In this

appeal brought by Amerijet International Inc., we are asked to decide whether a

section of the County’s Living Wage Ordinance, MIAMI-DADE CODE                        OF

ORDINANCES ch. 2, art. I, § 2-8.9(f)(2)(A), as applied to air carriers, is preempted

by the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1) or is unconstitutional

under the Constitution’s dormant Commerce Clause and Equal Protection Clause.

We conclude that the LWO is not preempted, and that it is constitutional.

                                           I

                                           A

       The County enacted the LWO in 1999 to promote the creation of full-time,

permanent jobs that would pay Miami-Dade residents a sustainable wage and
      *
         Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.


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thereby ease the burden on local taxpayers who would otherwise be required to pay

for social services. By its terms, the LWO requires service contractors (certain

individuals or entities that conduct business with the County or that use the

facilities of Miami International Airport (“MIA”)) to pay a “living wage” to all

employees who perform “covered services.” 1

      The County sets the living wage rate annually, and that wage is typically

higher than the state and federal minimum rates. In addition to setting a higher

wage floor, the LWO also imposes several administrative duties on covered service

contractors.       For instance, such contractors must maintain records for all

employees who provide covered services, including basic employment information

such as (1) the names and addresses of employees; (2) job titles and classifications;

(3) the daily number of hours worked by employees; (4) the gross wages earned by


      1
          “Covered services,” in part, are defined as:

                Guiding aircraft in and out of Airport; aircraft loading and
                unloading positions, designated by the Aviation Department;
                placing in position and operating passenger, baggage and cargo
                loading and unloading devices, as required for the safe and
                efficient loading and unloading of passengers, baggage and cargo
                to and from aircraft; performing such loading and unloading;
                providing aircraft utility services, such as air start and cabin air;
                fueling; catering; towing aircraft; cleaning of aircraft; delivering
                cargo, baggage and mail to and from aircraft to and from locations
                at any Miami-Dade County Aviation Department facility; and
                providing such other ramp services approved in writing by the
                Aviation Department[.]

LWO, § 2-8.9(F)(2)(A).


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employees and any deductions made; and (5) social security returns and any

payments to employees for fringe benefits. The records must be kept for a

minimum of three years from the suspension, expiration, or termination of the

service contractor’s agreement with the County. Contractors must also submit,

semi-annually, a certified payroll showing earning records for each employee and

an employment activity report containing the race, gender, wages, and zip code of

any employees who are hired or terminated.

                                          B

      Amerijet is an air carrier which has received a certificate from the United

States Department of Transportation, as provided in 14 C.F.R. Part 121. It is a

small all-cargo airline (that is, it only carries property and mail) that services the

United States, the Caribbean, and Latin America.

      In 2005, Amerijet expanded its operations to include a variety of other

services, generally referred to as cargo and ground handling services (“cargo

handling services”). Such services largely consist of the loading, unloading, and

delivery of cargo for other airlines. In 2010, Amerijet executed a lease with the

County, the owner and operator of MIA, for warehouse space to regularly provide

such cargo handling services at the airport.       The lease contained a provision

requiring Amerijet to comply with all of the County’s applicable ordinances,

including the LWO.


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      On June 7, 2010, Miami-Dade’s Department of Small Business

Development (“SBD”) sent a request for information to Amerijet, advising the

carrier that it had initiated an investigation into alleged violations of the LWO.

The investigation was the result of a complaint filed by one of Amerijet’s

employees alleging that the carrier had begun to provide cargo services for British

Airways and other airlines without paying the requisite living wage rate. The SBD

informed Amerijet that such cargo handling was a “covered service” under the

LWO and advised the carrier that “Amerijet employees providing th[e] service on

behalf of Amerijet for other airlines are covered by the living wage and must be

paid accordingly.” D.E. 50-2 at 17.

      In response to the SBD’s communication, Amerijet inquired as to whether

the LWO applied to air carriers. Although Amerijet agreed that cargo handling

was a covered service under the LWO, the airline was under the impression that

the LWO did not apply to it. Apparently, Amerijet believed that the LWO only

applied to covered service contractors who were not air carriers. After much back

and forth with the SBD, and without a favorable resolution, Amerijet determined

that it was not financially feasible to pay its cargo handling employees the living

wage rate. On April 29, 2011, Amerijet outsourced its cargo handling services for

other airlines to an on-airport cargo service contractor and laid off its in-warehouse

cargo handlers.


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          Subsequently, some of Amerijet’s former employees filed suit in state court

for back pay and penalties under the LWO. Amerijet settled that action, but not

before it filed the instant suit against the County for declaratory and injunctive

relief.

          Amerijet’s amended complaint alleged that the LWO was preempted by the

ADA, 49 U.S.C. § 41713(b)(1); the Federal Aviation Administration Authorization

Act, 49 U.S.C. § 14501(c)(1) (“FAAAA”); the Transportation Security

Administration’s regulations; 49 C.F.R §§ 15.5 and 1520.5; and certain Open Skies

Agreements. The complaint further alleged that the LWO violated the dormant

Commerce Clause and the Equal Protection Clause of the Constitution, and

asserted state law claims under the Florida Constitution and the County’s Home

Rule Charter. The County filed a motion to dismiss, arguing that Amerijet lacked

standing to bring its claims. The parties then filed cross motions for summary

judgment. In an omnibus order, the district court ruled that Amerijet had standing,

but found no federal impediment to the County’s application of the LWO to the

cargo handling services that Amerijet performed for other airlines. The district

court granted summary judgment in favor of the County on all the federal claims

and dismissed Amerijet’s state law claims, deciding not to exercise supplemental

jurisdiction. See 28 U.S.C. § 1367(c).




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      Amerijet appeals the district court’s order on the following grounds: (1) the

district court incorrectly ruled that the ADA and the FAAAA do not preempt the

LWO; (2) the district court erred in concluding that the LWO did not unduly

burden interstate and international commerce; (3) the district court failed to

recognize that there are genuine issues of material fact as to whether the County

enforced the LWO against other similarly-situated airlines; and (4) the district

court erred in declining to rule on Amerijet’s state law claims. We address each

argument in turn.

                                        II

      We exercise plenary review with respect to the district court’s grant of

summary judgment. See Doe v. Drummond Co., Inc., 

(11th Cir.

2015). “Summary judgment is appropriate when the evidence, viewed in the light

most favorable to the nonmoving party, presents no genuine issue of material fact

and compels judgment as a matter of law.” Fla. Transp. Serv., Inc. v. Miami-Dade

Cnty. (FTS), 

, 1243 (11th Cir. 2012) (citations omitted). “We also

review de novo the constitutionality of a challenged statute.” Fresenius Med. Care

Holdings, Inc. v. Tucker, 

, 939 (11th Cir. 2013).




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                                         III

      We will first consider Amerijet’s argument that the LWO is preempted by

the ADA and the FAAAA. We agree with the district court, albeit for different

reasons, that the LWO is not preempted.

      In 1978, Congress enacted the ADA, which largely deregulated domestic air

transport. See Koutsouradis v. Delta Air Lines, Inc., 

, 1343 (11th

Cir. 2005). “To ensure that the States would not undo federal deregulation with

regulation of their own,” the ADA included a preemption clause. Morales v. Trans

World Airlines Inc., 

, 378 (1992).            In relevant part, that clause

prohibits states or their political subdivisions from “enact[ing] or enforc[ing] a law,

regulation, or other provision having the force and effect of law related to a price,

route, or service of an air carrier that may provide air transportation under [the

ADA].” 49 U.S.C. § 41713(b)(1) (emphasis added).

      The term “related to” has a “broad scope” and an “expansive sweep.”

. Consequently, the Supreme Court has held that “a claim

‘relat[es] to rates, routes, or services,’ within the meaning of the ADA, if the claim

‘ha[s] a connection with, or reference to’” the rates, routes, or services of an air

carrier. Northwest, Inc. v. Ginsberg, 

, 1428 (2014) (emphasis added

and citations omitted).     Amerijet claims that § 2-8.9(F)(2)(A) of the LWO




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impermissibly references, and has a forbidden connection with, air carriers’

services and is therefore preempted by the ADA. 2

                                             A

       At first glance, it may seem that the ADA’s broad scope preempts the

application of this subsection of the LWO to Amerijet. Amerijet is a certificated

air carrier, and cargo handling is a service that Amerijet provides. “Were this the

true extent of the . . . wage law’s reach, [Amerijet’s] ‘reference to’ argument might

be more persuasive.” Cal. Div. of Lab. Standards Enforcement v. Dillingham

Constr., N.A., Inc., 

, 325-26 (1997).             But a closer look reveals

something altogether different.

       As an initial matter, we note that the LWO is not targeted at, and does not

single out, airlines or carriers such as Amerijet. It applies to those entities which

have certain contracts worth over $100,000 with the County, as well as numerous

service contractors at MIA or the Aviation Department. See LWO, § 2-8.9(F).

Thus, the LWO resembles a law of general application, as opposed to a law that is

designed to regulate the airline industry.

       In addition, the “services” at issue in this case—the provision of cargo

handling services for other airlines—are not the type that implicate the ADA’s

       2
           To the extent that Amerijet is basing its preemption argument on the FAAAA, that
contention is the same as its preemption argument under the ADA. As Amerijet acknowledges
in its brief, the FAAAA did not substantively change the ADA with respect to air carriers. We
therefore do not address the FAAAA separately.
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preemption provision. In Branche v. Airtran Airways, Inc., 

(11th

Cir. 2003), a “connection with” case, we adopted the Fifth Circuit’s definition of

the term “service” in § 41713(b)(1) of the ADA, as articulated in Hodges v. Delta

Airlines Inc., 

(5th Cir. 1995) (en banc). We held that the word

“services” refers to “the elements of air travel that are bargained for by passengers

[or shippers] with air carriers.” 

(emphasis added). The

term encompasses “not only the physical transportation of passengers [or

shipments], but also the incidents of that transportation over which air carriers

compete[,]” such as “ticketing, boarding procedures, provision of food and drink,

and baggage handling[.]” 

See also 

(“those elements

of air carrier operations over which airlines do not compete are not ‘services’

within the meaning of the ADA’s preemption provision”).

      Recognizing that the term “service” could include many facets of an air

carrier’s operations, we emphasized that the bargained-for aspect of the definition

“largely mitigate[d] the concern with overexpanding the reach of the ADA’s pre-

emption provision.” 

We also noted that this limiting principle was

“perfectly consistent with the ADA’s purpose of promoting competition within the

airline industry [because] air carriers compete in only a limited range of contexts,

e.g., fares, routes, timing, etc., which constitute the bargained-for elements of its

service.” 

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       Accordingly, three elements must be present for a particular service to be

deemed a “service” for purposes of the ADA: (1) it must fit within the limited

range of services over which airlines compete; (2) it must be bargained for; and (3)

the bargained-for exchange must be between an air carrier and its consumers. 

Applying these concepts, we held in Branche that the ADA did not

preempt a state-law retaliatory discharge claim brought by an ex-employee of an

airline. See 

(explaining that such a claim “cannot be said to relate in

any meaningful way to the transportation of passengers from one location to

another”).

       Amerijet, pointing to the fact that in Hodges the Fifth Circuit expressly

included baggage handling as a “service,” argues that its cargo handling for other

airlines clearly satisfies that definition. But cargo handling, when performed by

one airline for another (as is the case here), fatally lacks the third factor articulated

in Branche.       Any negotiations regarding such cargo handling occur between

Amerijet and other airlines and do not in any way involve the “airline-consumer”

or “airline-end user relationship.”3


       3
          Notably, in crafting the definition of “service” in Branche, we focused exclusively on
the contractual relationship between an air carrier and the ultimate consumer or end user of that
air carrier’s services. See 

-59. See also 

(“The
Federal Aviation Agency . . . identif[ies] ‘service’ or ‘services’ in its regulations to incorporate
the accoutrements of the passenger – or shipper – and carrier contract.”). Our understanding is in
accordance with the interpretation of ADA preemption by the Civil Aeronautics Board (the
predecessor to the DOT): “[W]e conclude that preemption extends to all of the economic factors
that go into the provision of the quid pro quo for passenger’s fares.” Civil Aeronautics Board,
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       Indeed, the County has never construed the LWO as applying to an airline

when it handles cargo for its own consumers, and has consistently stated that the

LWO is not applicable in such circumstances. The County has interpreted the

LWO in this manner in several communications to Amerijet, and we accept the

County’s interpretation of the ordinance. See Forsyth Cnty., Ga. v. Nationalist

Movement, 

, 131 (1992) (“In evaluating the [Appellant’s] facial

challenge, we must consider the county’s authoritative constructions of the

ordinance, including its own implementation and interpretation of it.”). We note,

as well, that the County interpreted the LWO in this manner prior to initiating the

enforcement proceeding against Amerijet and before Amerijet filed the instant

action.

       We acknowledge that Amerijet provides cargo handling services for other

airlines, such as British Airways, which ultimately will offer those services to

consumers.     It cannot be said, however, that the provision of such services

implicates the carrier-end user relationship. Amerijet’s arrangement with other

airlines is more akin to that of a subcontractor and a general contractor, and a

contract between such parties would be secondary (and thus wholly separate and


Implementation of Preemption Provision of the Airline Deregulation Act of 1978, 44 Fed. Reg.
9951 (Feb. 15, 1979) (emphasis added). Although the DOT, some 24 years later, removed the
CAB’s interim policy, the DOT’s current view on the issue is consistent with the CAB’s. See
Department of Transportation, Preemption in Air Transportation, Policy Statement Amendment,
68 Fed. Reg. 43882 (July 24, 2003).


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distinct) to any contract with the ultimate consumer. See Webster’s New World

College Dictionary 1425 (4th ed. 2000) (defining subcontractor as “a person or

company who assumes by secondary contract some or all of the obligations of the

original contractor”); Black’s Law Dictionary 373 (9th ed. 2009) (defining

subcontract as “a secondary contract made by a party to the primary contract for

carrying out the primary contract, or a part of it”). Cf. New York State Conference

of Blue Cross & Blue Shield Plans v. Travelers Ins., Co., 

, 649, 656

(1995) (holding that a statute imposing a surcharge on “[p]atients served by

commercial insurers providing in-patient hospital coverage on an expense-incurred

basis, by self-insured funds directly reimbursing hospitals, and by certain workers’

compensation, volunteer firefighters’ benefit, ambulance workers’ benefit, and no-

fault motor vehicle insurance funds” . . . “cannot be said to make ‘reference to’

ERISA plans in any manner” because the surcharge applied “regardless of whether

the commercial coverage or membership, respectively, [wa]s ultimately secured by

an ERISA plan, private purchase, or otherwise”).

      In sum, the cargo handling work Amerijet performs for other airlines at MIA

does not constitute a “service” within the meaning of the ADA’s preemption

provision. We therefore affirm the district court’s ruling that the LWO, as applied

to such cargo handling services, is not preempted by the ADA.




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                                           B

      The ADA’s preemptive scope is broad enough to invalidate a statute even

when it does not explicitly reference an air carrier’s services. See 

(A “state law may ‘relate to’ a [service], and thereby be pre-empted,

even if the law is not specifically designed to affect such [services], or the effect is

only indirect.”) (citations omitted). A law that has a “significant impact” on the

services of an air carrier might also be preempted, but we must be careful not to

extend the ADA’s preemptive reach to state laws that are “too tenuous, remote, or

peripheral . . . to have pre-emptive effect.” Am. Airlines Inc. v. Wolens, 

, 224 (1995) (citations omitted).

      Amerijet argues that the LWO has a significant impact on air carriers’

services in two ways.       First, Amerijet says that the LWO’s recordkeeping,

inspection, and reporting requirements create a substantial burden in the form of

additional labor and costs. Second, Amerijet argues that the LWO alters the

manner in which it provides services by compelling it to undertake the “infeasible”

task of segregating its workforce into two groups—employees who handle cargo

transported by Amerijet and employees who handle cargo for other airlines.

      In making these arguments, Amerijet places great reliance on Metropolitan

Milwaukee Association of Commerce v. Milwaukee County, 

(7th Cir.




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2005), and Rowe v. New Hampshire Motor Transport Association, 

(2008). Those cases, however, are distinguishable on their facts.

        Starting with Milwaukee County, that case did not involve the ADA’s

preemption clause. Instead, it examined whether the National Labor Relations Act,

29 U.S.C. § 151, et. seq., preempted a county ordinance that required contractors to

negotiate “labor peace agreements” with any union that desired to organize.

Milwaukee 

. The case, therefore, is not of much help

here.

        Turning to Rowe, the LWO does not have the sort of significant effect on an

air carrier’s services contemplated in that case. There, several transport motor

carriers alleged that the FAAAA (as applied to motor carriers) preempted a Maine

law that effectively required such carriers to provide a “special kind of recipient-

verification service” if they delivered tobacco within the state. 

. The Supreme Court held that the requirement significantly and adversely

impacted the carrier’s services because it required them “to offer a system of

services that the market d[id] not [then] provide (and which the carriers would

[have] prefer[red] not to offer).” 

The Court further found that the law

would “freeze into place services that carriers might prefer to discontinue in the

future.” 

the state law “produce[d] the very effect that the federal

law sought to avoid, namely, a State’s direct substitution of its own governmental


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commands for ‘competitive market forces’ in determining (to a significant degree)

the services that . . . carriers will provide.” 

      The LWO, however, has no such effect.               It does not interfere with

competitive market forces by dictating the types of services Amerijet (or any other

carrier) must provide. Nor does it prevent a carrier from providing cargo handling

services, as Amerijet contends. If Amerijet’s argument is that the LWO precludes

an air carrier, in its capacity as a covered service contractor, from providing cargo

handling services to other airlines, we have already concluded that such services do

not trigger ADA preemption. If, on the other hand, Amerijet is suggesting that an

increase in an air carrier’s costs will in turn raise the prices of that carrier’s

services (i.e., an increase in baggage handling fees), such “indirect economic

influences” are insufficient to trigger preemption. See N.Y. State Conference of

Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 

, 659-660

(1995) (holding that a statute that applied a surcharge on certain commercial

insurance plans only indirectly influenced insurance buyers because it did not

“bind plan administrators to any particular choice and thus [did not] function as a

regulation of the ERISA plan itself.”).

       The LWO’s requirements do not “bind” air carriers to “any particular

choice and thus function as a regulation of [air carriers’ services] . . . Nor does the

indirect influence of the [ordinance’s requirements] preclude” air carriers from


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offering services that they wish to provide. 

merely “alters the

incentives” facing an air carrier. 

. “In this regard, it is

‘no different from myriad state laws in areas traditionally subject to local

regulation, which Congress could not possibly have intended to eliminate.’” 

is nothing prohibitive about requiring Amerijet to pay a

portion of its workforce a different wage.                Employers routinely pay their

employees different wage rates, even to those whose duties fall within the same job

description. Because any effect the LWO may have on an air carrier’s services

would be no more than indirect, remote, and tenuous, we conclude that the

ordinance does not have the requisite “significant impact” to bring it within the

ambit of the ADA’s preemption clause.4

                                              III

       The Commerce Clause endows Congress with the power to regulate

commerce among the several states. U.S. Const. Art. 1, § 8., cl. 3. It is well

settled, though, that the Commerce Clause also “serves as ‘a substantive restriction

on permissible state regulation of interstate commerce.’” Bainbridge v. Turner,

       4
            Our ruling is consistent with the decision of the Ninth Circuit rejecting ADA or
FAAAA preemption claims with respect to a local living wage ordinance. See Californians For
Safe & Competitive Dump Truck Transp. v. Mendoca, 

, 1189 (9th Cir. 1998). See
also S.C. Johnson & Son, Inc. v. Transport Corp. of Am., Inc., 

, 558 (7th Cir. 2012)
(“no one thinks that the ADA or the FAAAA preempts” background laws such as minimum
wage laws); DiFiore v. Am. Airlines, Inc., 

, 87 (1st Cir. 2011) (“the Supreme Court
would be unlikely—with some possible qualifications—to free airlines from . . . prevailing wage
laws . . . applicable to other businesses”).

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, 1108 (11th Cir. 2002). “This ‘negative’ [or dormant] aspect of the

Commerce Clause prohibits economic protectionism—that is, regulatory measures

designed to benefit in-state economic interests by burdening out-of-state

competitors.” 

“The clause also works to keep states from

‘ventur[ing] excessively into the regulation of . . . [interstate] commerce . . . [and]

trespass[ing] upon national interests[.]’” 

original).

      We examine challenges under the dormant Commerce Clause using a two-

tiered analysis.    We first determine whether a law “‘directly regulates or

discriminates against interstate commerce,’ or has the effect of favoring ‘in-state

economic interests[.]’” Island Silver & Spice, Inc. v. Islamorada, 

,

846 (11th Cir. 2008).      If it does, the law would be per se invalid unless it

“‘advance[s] a legitimate local purpose that cannot be adequately served by

reasonable nondiscriminatory alternatives.’”        

law,

however, can also violate the dormant Commerce Clause. Thus, under the second

tier, we apply the so-called undue burden test of Pike v. Bruce Church, Inc., 

, 142 (1970), to determine whether the state’s interest in enacting the law

“‘is legitimate and whether the burden on interstate commerce clearly exceeds the

local benefits.’” 

(citations omitted). “There is,

however, no clear line between these two strands of analysis, and several cases that

have purported to apply the undue burden test (including Pike itself) arguably


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turned in whole or in part on the discriminatory character of the challenged state

regulations.”     Gen. Motors Corp. v. Tracy, 

, 299 n. 12 (1997)

(citations omitted).

      Amerijet primarily bases its arguments on the second tier of this analysis. It

contends that the County’s sole purpose in applying the LWO to air carriers is to

protect incumbent covered non-airline service contractors, such as general aviation

service providers (“GASPers”) which only provide general aviation services and

do not engage in airline operations, from competition from out-of-state airlines.

Amerijet argues that, under our decision in Florida Transportation Services v.

Miami Dade County, 

(11th Cir. 2012), this protectionist purpose

warrants an invalidation of the LWO.

      In FTS, we had occasion to consider whether Miami-Dade County’s

stevedore permit ordinance, as applied, violated the dormant Commerce Clause.

Florida Transportation filed suit against the County, alleging that the Miami-Dade

Port Director applied the ordinance in a manner that was designed to protect

incumbent stevedores from competition by keeping new entrants out of the

stevedore 

. FTS complained that the Port Director did

not observe the ordinance’s requirements but instead “automatically renew[ed]

permits for all existing stevedore permit holders at the Port and automatically

den[ied] all new applicants[.]” 

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       The Port Director, in prior litigation with FTS, conceded the point, and

argued that the practice was intended “to prevent ‘economic hardship to the entire

local stevedoring industry’ that would result from ‘dilut[ing] the market’ with

excessive stevedore permits.” 

We concluded that the practices served

a protectionist purpose and “plainly burdened interstate commerce” because they

effectively kept new participants from entering into the stevedore market. 

5

       Unlike Florida Transportation in FTS, Amerijet has failed to demonstrate

that the County’s underlying motivation in enacting the LWO was protectionist.

The County has not conceded that it enacted the ordinance to protect the local

market. To the contrary, it asserts that the LWO’s purpose is to prevent an undue

burden on taxpayers by eliminating the need to subsidize social programs.

Amerijet has not proven otherwise. The only evidence proffered by Amerijet to

support its assertion is a memorandum explaining the County’s reasons for

adopting Resolution No. R-1180-95—a policy that is wholly separate and distinct

from the LWO. As we explain, that evidence does not create an issue of fact.

       In 1995, due to the increase in inter-airline marketing agreements and equity

ownership arrangements, several airlines lobbied the Miami-Dade Aviation

       5
           In FTS, “we recognize[d] that the terms “protectionist” and “protectionism” are
narrowly defined in dormant Commerce Clause jurisprudence[,]” but “use[d] the terms broadly .
. . as the permitting practice did not burden only out-of-state competitors.” 

n. 42.
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Department to allow air carriers to provide cargo handling services to other airlines

with which they had relationships. The Aviation Department agreed, so long as the

airlines met certain conditions. Acknowledging that this change to the cargo

policy would negatively impact the revenues of other covered service contractors

such as GASPers, the County adopted Resolution No. R-1180-95 to eliminate a

contractual provision from the GASPers permits that required workforces to

consist of no less than 80% of full-time employees. This was done to prevent

GASPers from suffering “a competitive disadvantage to airlines that w[ould] be

able to provide [cargo handling] services without such a restriction.” D.E. 45-2 at

13.

      We find nothing inherently discriminatory regarding the adoption of

Resolution R-1150-95, as it only authorized GASPers to compete on the same

terms as airlines that were entering into the cargo handling market. Indeed, we

have stressed that there is “no cause for constitutional concern” when “in-state and

out-of-state [providers] are allowed to compete freely on a level playing field.” S.

Waste Sys., LLC. v. City of Delray Beach, Fla., 

, 1291 (11th Cir.

2005).

      Alternatively, Amerijet argues that, if we decline to grant it summary

judgment on its dormant Commerce Clause claim, we should also deny the

County’s cross motion. It contends that there is a genuine issue of material fact


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because the County failed to put forth any evidence to support its contention that

the stated purpose of the LWO was sincere. But Amerijet misunderstands the

mechanics of a summary judgment motion.

       When the nonmoving party bears the burden of proof at trial, the moving

party may discharge its burden on a summary judgment motion “by ‘showing’—

that is, pointing out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.” Celotex Corp. v. Catrett, 

, 325

(1986). Under the Pike undue burden test, “[t]he burden to show discrimination

rests on the party challenging the validity of the statute[.]” Hughes v. Okla., 

, 336 (1979). It is only “[w]hen discrimination against commerce . . . is

demonstrated, [that] the burden falls on the [government entity] to justify it both in

terms of the local benefits flowing from the statute and the unavailability of

nondiscriminatory alternatives adequate to preserve the local interests at stake.”

has satisfied its burden, but Amerijet has not satisfied its burden.

We therefore conclude that the district court properly granted summary judgment

on behalf of the County. 6




       6
            In its reply brief, Amerijet for the first time asserts that the LWO is also facially
discriminative. This Court, however, “repeatedly has refused to consider issues raised for the
first time in an appellant’s reply brief.” United States v. Levy, 

, 1244 (11th Cir.
2004). Therefore, we decline to address this argument.


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                                         IV

      As its final challenge to the LWO, Amerijet asserts a “class of one” equal

protection argument. Specifically, Amerijet claims that it was not treated equally

because Centurion Air Cargo, another airline service contractor, was subject to the

LWO but was not required to comply with the LWO’s dictates. To be successful

on this claim, Amerijet has to show “(1) that [it] was treated differently from other

similarly situated [covered airline service contractors] and (2) that [the County]

unequally applied [the] facially neutral ordinance for the purpose of discriminating

against [it].” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 

,

1307 (11th Cir. 2009) (citations omitted).

      In support of its equal protection claim, Amerijet submitted a brief email

exchange between two county officials in 2007 and a letter dated February 5, 2008,

from Centurion to the County. The 2007 emails establish three things: (1) that the

County received complaints that Centurion had not complied with the LWO; (2)

that Centurion performed cargo services at the airport; and (3) that Centurion is an

air carrier. For its part, the 2008 letter simply informs the County that Centurion

had begun performing cargo handling services for Alitalia Airlines.

      Even considered in the light most favorable to Amerijet, these documents

are insufficient to create a genuine issue of material fact as to whether the County

enforced the LWO in a discriminatory manner. First, the 2007 emails are silent as


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to whether Centurion was providing cargo handling services for itself or for other

airlines, making it unclear whether the LWO even applied to Centurion in 2007.

Second, although the letter certainly acknowledges that Centurion began providing

cargo handling services for Alitalia in 2008, there is no evidence that Centurion

violated the LWO at that time. In addition, there is no mention one way or the

other as to whether the County failed to enforce the LWO against Centurion once it

was informed that the air carrier had begun to operate as a covered service

contractor.    As the district court correctly noted, one “can hardly infer that

Centurion is exempt from complying with the LWO based upon [the] scant

language” of the documents. D.E. 59 at 13.

       Furthermore, the record is bereft of evidence showing that the County

intentionally applied the LWO in an uneven manner for the purpose of

discriminating against Amerijet. Accordingly, we conclude that the district court

properly granted summary judgment in the County’s favor.

                                               V

       For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of the County and its denial of Amerijet’s summary judgment

motion.7


       7
         We also affirm the district court’s decision not to exercise supplemental jurisdiction
over Amerijet’s remaining state law claims. See Utopia Provider Sys., Inc. v. Pro-Med Clinical
Sys., LLC, 

, 1328 (11th Cir. 2010) (“‘We review the district court’s decision not to
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       AFFIRMED. 8




exercise supplemental jurisdiction for abuse of discretion.’ ‘As a practical matter, the district
court is in the best position to weigh the competing interests . . . in deciding whether it is
appropriate to exercise supplemental jurisdiction.’”) (citations omitted). Additionally, pursuant
to Miami Dade County’s request, we take judicial notice of the certified copy of the LWO, which
includes its legislative findings.
       8
       We grant Miami-Dade County’s motion to take judicial notice of the certified copy of
the LWO, which includes its legislative findings.
                                               25