ACI-NA Weekly Legal Briefing

ACI-NA’s Weekly Legal Briefing
Volume 2011, Issue 25
Week of August 29– September 2, 2011

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Litigation Update:

Federal Judge in Richmond Rejects Government's Motion to Dismiss Lawsuit Brought by Stripper of Shirt at Richmond Airport

U.S. District Judge Henry Hudson of the Eastern District of Virginia, ejected a motion by the Federal government to dismiss First Amendment claims against two Transportation Security Administration (TSA) agents in a civil rights lawsuit involving college student Aaron Tobey who was arrested for disorderly conduct after removing his shirt at Richmond International Airport (RIC) and exposing a portion of the Fourth Amendment written on his chest.

Although the viewpoint discrimination claims against the individual TSA agents remain in the case, the court dismissed the complaint against TSA supervisory officials and the Capital Region Airport Commission as an entity. The lawsuit charging several Capital Region Airport Commission police officers with constitutional violations and false arrest in connection with the incident continues.

Tobey protested at the Richmond Airport against the TSA's use of whole-body imaging scanners and enhanced pat downs on December 30, 2010. Attorneys for The Rutherford Institute subsequently filed a free speech lawsuit in U.S. District Court in Richmond in March 2011, alleging that agents of the TSA and RIC police deprived Tobey of his rights under the First and Fourth Amendments to the U.S. Constitution. The trial is tentatively scheduled to begin on Jan. 18, 2012.

Even though Tobey successfully passed through the airport screening checkpoint, he was arrested and handcuffed. Government agents from agencies including the Joint Task Force on Terrorism questioned Tobey for approximately 90 minutes before citing him for disorderly conduct, a Class I misdemeanor under Virginia law, carrying penalties of up to $2,500 and 12 months in jail. The Henrico County Commonwealth's attorney eventually dropped the charges against Tobey.

The Rutherford Institute's complaint in Tobey v. Napolitano is available at

9thCircuit Orders FAA to Evaluate Cumulative Impact of Increased Demand for Proposed Runway

In the case Barnes v. DOT (9thCir., 08/25/11), the Court ordered the FAA to consider, in its NEPA analysis, the “environmental impact of increased demand” resulting from the proposed addition of a third runway to the Hillsboro, Oregon, airport, a reliever airport for the Portland International Airport.  The FAA had issued a Finding of No Significant Impact for the proposed construction, thus relieving the need to prepare an Environmental Impact Statement.  The majority found that the Circuit’s prior case law consistently notes “that a new runway has a unique potential to spur demand, which sets it apart from other airport improvements, like changing flight patterns, improving a terminal, or adding a taxiway, which increase demand only marginally, if at all.”  The Court determined that “even if the stated purpose of the project is to increase safety and efficiency, the [FAA] must analyze the impacts of the increased demand attributable to the additional runway as growth-inducing effects”.  The Court concluded that the FAA must consider the environmental impact of increased demand resulting from the construction of a third runway at the Hillsboro airport.  The Dissent, on the other hand, believed that the FAA did not need to address whether the third runway would have an additional growth-inducing effect because the longstanding conclusion of the Circuit’s case law is that airport projects do not have a growth inducing effect.  The Dissent stated that “when projects are designed to accommodate existing and projected demand, the FAA has no obligation to analyze the possibility that addressing these demands will also lead to a further increase in demand.”  This case is a great read just to see the majority (through footnotes) and the dissent arguing back and forth.

9th     Circuit Link to Case:

Trump Shuttle Case Voluntarily Dismissed

During the ACI-NA Spring Legal Conference, Eric Pilsk of associate law firm Kaplan Kirsch and Rockwell, reported on a case brought by Donald Trump challenging a runway construction project at Palm Beach Airport.  Trump voluntarily withdrew his suit without prejudice pending in state court in Palm Beach County, Florida, in a submittal dated August 30, 2011.  In a cover letter, Trump’s lawyer said the suit was not necessary because the County had decided to delay the new runway project

Legislative and Regulatory Developments:

The ACI-NA Government Affairs Staff reported that during a press conference held on August 31, 2011, as a preview to his upcoming jobs plan, President Barack Obama called on Congress to pass a “clean FAA extension” as soon as they come back into session next week.  During his comments about the recent FAA shutdown, the President talked about the impact on airport infrastructure projects.  He also called on Congress to pass legislation to pay FAA employees for the two weeks they were furloughed. 

President Obama addressed federal transportation infrastructure investment saying, “I’m also calling on Congress to reform the way transportation money is invested.”  He said that there needs to be more private investment in all infrastructure projects so that investments can not only be made now but for the next twenty years.  ACI-NA President Greg Principato sent a letter to President Obama on August 18 asking that he consider airports in his upcoming jobs package.  In that letter, Principato highlighted the ways airports could invest in infrastructure without raising the federal debt which includes more freedom to collaborate with the private sector

Furthermore, the President called on Congress to allow for expediting projects that are already funded through faster approvals for permitting but without “jeopardizing the environment or public health.”

Please contact ACI-NA’s Government Affairs staff should you have any additional questions or concerns on the continuing status of this issue.

NLRB:  The August 30, 2011, Federal Register contains a final rule from the National Labor Relations Board that requires all employers subject to the National Labor Relations Act (NLRA) to post notices to employees informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures.  The NLRA is the federal statute that regulates most private sector labor-management relations.  However, the United States government, wholly owned government corporations, Federal Reserve Banks, State or political subdivisions, and anyone subject to the Railway Labor Act are not subject to the NLRA.  The final rule establishes the size, form, and content of the notice and establishes the enforcement procedures.  The Appendix to Subpart A of the Rule contains the required language for the notices.  This rule becomes effective on November 14, 2011.

Link to rule:

Notification of Employee Rights Under the National Labor Relations Act, Final Rule (76 Fed. Reg. 54006-54050; 08/30/11)

“Matters of Interest”

Many will pause to remember 9/11 this week;

TSA has announced the following remembrance in Washington, D.C.

TSA Joins the Smithsonian’s National Museum of American History for the

Ten-Year Commemoration of September 11

TSA is proud to inform you of a special partnership with the Smithsonian’s National Museum of American History. To commemorate the ten-year anniversary of  September 11, 2001, the Museum will feature a display, “September 11: Remembrance and Reflection”  featuring artifacts from the World Trade Center, the Pentagon, Shanksville, PA  and Transportation Security Administration. This unique display will be open to the public for nine days only. 

Date:             Saturday, September 3 – Sunday, September 11, 2011

                       Daily from 11:00 a.m. to 3:00 p.m.

Location :     National Museum of American History

Hall of Musical Instruments, Third Floor

Madison Drive between 12th & 14th Streets, N.W.

Washington, D.C.

“September 11: Remembrance and Reflection” will include objects donated by TSA, marking the agency’s contribution to American history.

On behalf of the men and women of TSA, we hope you will visit the National Museum of American History to view the display.

  • Please join me in welcoming our newest Legal Affairs Committee member at Alaska International Airports System and Ted Stevens Anchorage and Fairbanks International Airports, Peter K. Putzier, who follows John Steiner, who left the airport earlier this year to follow a new career path.  Peter can be contacted at

Upcoming Meetings and Events of Interest

  • The ABA Air & Space Law Forum’s 2011 Annual Conference will be held in Montreal on September 22 and 23 at the Marriott Chateau Champlain

Airport Lawyers will find a number of sessions and speakers of interest, notably:

James Cherry, President & CEO, Aéroports de Montréal

will be the keynote speaker on Friday morning, September 23

and a special General Counsels’ Panel that will explore the full range of issues that aviation general counsel, representing a diverse group of entities, are expected to handle, including:

• Litigation management

• Governance issues (public and private sector)

• Discovery requests

• Management oversight of government investigations

• Legal implications of government regulations and policies

Panelists will also discuss their greatest challenges, major accomplishments and key issues facing each organization's legal department.

MODERATOR:  Monica R. Hargrove

General Counsel, Airports Council International-North America


Scott Casey, Vice President, Legal & Public Affairs, UPS

Gary Doernhoefer, General Counsel, Legal Services Department, International Air Transport Association

Francine Kerner, Chief Counsel, US Transportation Security Administration

David Mackey, Interim CEO & Chief Legal Counsel, Massachusetts Port Authority

David Shapiro, Chief Legal Officer, Vice President & General Counsel, Air Canada

  • The ACI-NA Fall Legal Conference will take place at the San Diego Convention Center

on October 15 – 16, 2011

The agenda is available on the ACI-NA Website!

Online registration is available!

If you have any litigation issues for inclusion during the Litigation Update Session or any transactions of note for inclusion during the Transactions Update Session in October, please send them to me or to the Chairman of the Legal Steering Group,

Timothy Karaskiewicz at

If you have information of interest to share, forward it to me by COB on Thursday of each week.

  Send it to:

Have a safe and enjoyable Labor Day weekend!


Monica R. Hargrove
General Counsel

Direct: (202) 861-8088