ACI-NA Weekly Legal Briefing--Issue 12

                 ACI-NA’s Weekly Legal Briefing                  

Volume 2012, Issue 12

Week of July 2 – 6, 2012

Legal Affairs Committee Members:

We hope you enjoyed your Fourth of July Holiday celebration!   See the following recent legal developments and upcoming events that might be of interest to you!

Litigation Developments:

  • Tinicum Township vs. US Department of Transportation and  Federal Aviation Administration

The U.S. Court of Appeals for the Third Circuit issued a decision today affirming the FAA’s Record of Decision approving the City of Philadelphia’s Capacity Enhancement Plan for PHL.  The 22-page decision, written by Judge Anthony Scirica, adopts the principal arguments made by the FAA and City in rejecting each of the arguments raised by Tinicum and Delaware County.  The principal rulings by the Court are:

  • The Court was not required to give deference to EPA comments that criticized certain aspects of the air quality analysis.  Tinicum argued that because EPA is charged with enforcing the Clean Air Act, the Court was required to treat EPA’s comment letters as binding statements of the law.  The Court held that EPA’s role in the CEP process was that of a commenter and that informal agency comments to do not require deference.
  • FAA gave appropriate consideration to EPA’s comments and completed the air quality analysis in compliance with applicable law.  The Court rejected each of Tinicum’s five challenges to the air quality analysis and held that FAA’s methodology complied with legal standards and the air quality study protocol that FAA developed with EPA’s review and concurrence.
  • FAA was not required to prepare a supplemental environmental impact statement based on certain post-FEIS air quality studies because those studies confirmed that the FEIS analysis was correct and did not reveal any new environmental impacts.
  • FAA was permitted to rely on the regional plans of the Delaware Valley Regional Planning Commission in order to certify that the CEP was consistent with the plans of agencies authorized to plan for the area around the CEP, rather than the plans of Tinicum and the County.

Eric Pilsk, a partner at ACI-NA associate law firm Kaplan Kirsch & Rockwell, represented the City of Philadelphia and the Philadelphia International Airport during the oral argument.  Congratulations to the airport and to Joseph Messina, ACI-NA Legal Affairs Committee Chair, on this important decision!

  • Braunstein v. Arizona Dept. of Transportation(9thCir., 06/27/2012, No. 10-16564)

In an action seeing damages based on Arizona's use of an affirmative action program in its award of a 2005 transportation engineering contract, the District Court's decision is affirmed where plaintiff lacks Article III standing, as plaintiff never demonstrated that the challenged affirmative action program affected him personally or impeded his ability to compete for subcontracting work.

This 9thCircuit case provides an excellent discussion of Article III standing for a state’s affirmative action construction program.  The case also summarizes its prior decisions on affirmative action in state construction programs.

Link to 9thCircuit Decision:

-submitted by James Briggs-

  • In Noel v. New York City Taxi and Limousine Commission(2ndCir., 06/28/2012),the Second Circuit held that the New York City Taxi and Limousine Commission (TLC) was not required by Title II(A) of the Americans with Disabilities Act to use TLC’s licensing and regulatory authority to mandate that taxi services provide wheelchair accessible taxis, even though TLC exercises pervasive control over the taxi industry in New York City. The ADA’s first three titles proscribe discrimination against individuals with disabilities in employment and hiring (Title I), access to public services (Title II), and public accommodations (Title III). Title II is divided into Parts A and B:  Part A governs public services generally and Part B governs the provision of public transportation services.  The Second Circuit ruled that, even if private industry (such as the New York City taxi industry) fails to provide meaningful access for persons with disabilities, a licensing entity (such as the TLC) is not therefore in violation of Title II(A), unless the private industry practice results from the licensing requirements.  Title II(A)’s prohibition on discrimination by public entities does not compel public entities to police compliance by the private entities they license.  In short, the ADA does not require a licensing entity to use its regulatory power to coerce compliance by a private industry.  The Court concluded that TLC does not violate the ADA by licensing and regulating a private taxi industry that fails to afford meaningful access to passengers with disabilities.  Only 233 (or 1.8%) of the 13,237 medallion taxis in New York City are wheelchair accessible.  

Link to Second Circuit Decision:

-submitted by James Briggs-

  • Recent Development Involving Trademark Applications for Three Letter Airport Codes by Anheuser-Bush

Attorneys for Anheuser-Busch have filed federal trademark applications for the registration of over 40 three-letter U.S. commercial airport codes, according to a recent article on the website.  A-B seeks to trademark airport codes; Draftmark line grows

Representatives  of affected ACI-NA member airports have been sent recent information on this matter and are encouraged to send any information they have on this issue to me by no later than close of business on Tuesday, July 10.

Regulatory Issues of Interest:

  • Department of Transportation Issued a New Notice of Proposed Rulemaking Covering certain Commercial Shipments during Air Travel

In the DOT’s latest proposed rule issued to protect consumers of air travel, “commercial” shipments of pets and service animals are provided certain protections.  The Federal Register Link to the NPRM published Friday, June 29, 2012:

It's interesting to note that while "commercial" shipment of "cats and dogs" on scheduled passenger flights would be covered, cargo carriers are not included in the rule.  Also, this rule does not include animals transported in the cabin of the aircraft (because responsibility for the animal is not transferred to the carrier).  Therefore, the guide dogs, etc., accompanying passengers with disabilities are not covered by this rule.

  • National Transportation Safety Board

The June 25, 2012 Federal Register contained a notice from the NTSB regarding a review of its regulations.  The NTSB is proposing to review specifically  49 CFR Part 831 (“Accident/Incident Investigation Procedures”) to determine if any sections could be modified, streamlined, expanded, or repealed.  The NTSB is also encouraging public comment on any of the NTSB regulations in Title 49, Code of Federal Regulations.  Comments are due August 24, 2012.

Link to Federal Register Notice:


Conferences,  Events, and Publications of Interest

July 16, 2012 - July 17, 2012

Grand Rapids, MI

  • The Federal Bar Association’s Transportation and
    Transportation Security Law Section
    Invites you to its July 2012 Lawyers Luncheon: 

“Career Paths in Transportation and Transportation Security Law”

The panel participants will include:
·Monica R. Hargrove, General Counsel, Airports Council International
– North America
·David F. Rifkind, Shareholder, Leonard, Street and Deinard
·Tom Lehrich, Assistant Chief Counsel, Transportation Security
Administration’s Office of Chief Counsel
·Paula Lee, Attorney, U.S. Department of Transportation, Office of the
General Counsel

Moderator: Alice M. Koethe, Pipeline and Hazardous Materials Safety
Administration, Office of Chief Counsel
Thursday, July 19, 2012
12:00pm – 1:00 pm
Conference Room 6
U.S. Department of Transportation
1200 New Jersey Ave., SE
Washington, DC 20590
Bring your brown bag lunch—beverages and cookies are provided.


  • SAVE THE DATE----October 25 - 26, 2012
    The American Bar Association, Forum on Air & Space Law, would like to cordially invite you to join us in the historic and festive city of New Orleans, Louisiana, for our 2012 Annual Conference, October 25 and 26, 2012.

    The conference highlights a wide range of meaningful panel discussions, with key experts to raise new viewpoints and perspectives on the most pressing issues in aviation and space law.

  • Airline Consolidation
  • Aviation Security
  • Litigation Trends in 2012
  • Noise, Tarmac Delays & other Hot Airport Issues
  • Aviation Emissions
  • Drones
  • Social Media & Airlines
  • Passenger Rights
  • Aircraft Finance Nuts & Bolts and Current Trends
  • Waivers for Human Space Flight
  • Airport General Counsels Panel

Two of our esteemed speakers include Allan McArtor, Chairman of Airbus Americas, Inc. and Iftikhar Ahmad, Director of Aviation of the Louis Armstrong New Orleans International Airport. The conference provides many interactive opportunities to network with other aviation and space practitioners from across the United States and internationally, including a Young Lawyers Reception. The mystique of New Orleans is unforgettable. From the distinct notes of jazz to the world famous beignets along with Creole and Cajun cuisine, you will experience the charm of one of the most unique cities in the United States.

  • Recent Job Posting


Assistant Chief Counsel for Field Operations

Securing Travel, Protecting People - At the Transportation Security Administration, we serve in a high-stakes environment to safeguard the American way of life. In cities across the country, we secure airports, seaports, railroads, highways, and public transit systems, thus protecting our transportation…..



Department Of Homeland Security


Transportation Security Administration


Arlington ,Virginia (Arlington, VA, US)


$119,554.00 to $179,700.00

Open Period:

Friday, July 06, 2012 to Monday, August 06, 2012

Who May Apply: 

Open to all U.S. Citizens.

Series & Grade:


Position Information:Full Time - Permanent

This position is in the Transportation Security Executive Service (TSES) and is located in the Office of Chief Counsel. PLEASE NOTE: One (1) position being filled. Position may be filled at Headquarters in Arlington, VA, or a Category X or Category I airport location. Specific location to be determined upon selection. Contact the ESO Help Desk at 877-872-7991 for information on specific locations of Category X and Category I airports.

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

  Send it to:

Have a great weekend!


Monica R. Hargrove
General Counsel

Direct: (202) 861-8088

Please be advised that ACI-NA’s office has moved.  As of June 11, our new address is:

1615 L Street, NW

Suite 300
Washington, DC 20036


Our phone and e-mail contacts remain unchanged.