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									                                       DOT LITIGATION NEWS
                                                                   1200 New Jersey Avenue, S.E.


    Office of the General Counsel
                                                                     Washington, D.C. 20590
    Paul M. Geier
    Assistant General Counsel                                        Telephone: (202) 366-4731
     for Litigation                                                        Fax: (202) 493-0154

    Peter J. Plocki
    Deputy Assistant General Counsel
     for Litigation


        March 31, 2011                        Volume No. 11                 Issue No. 1


                                           Highlights
   Supreme Court holds that NHTSA                  Supreme Court invites government’s
   seatbelt standard does not preempt              views on certiorari in case involving
   state common law standard, page 2               the preemptive scope of the
                                                   Locomotive Inspection Act, page 5
   Supreme Court decides Railroad
   Revitalization and Regulatory Reform            Supreme Court denies certiorari in
   Act case, page 3                                New York City hybrid taxi
                                                   preemption case, page 6
   United States seeks Supreme Court
   review of decision allowing non-                Tenth Circuit decides preemption
   pecuniary damages for Privacy Act               challenge to application of state liquor
   violations, page 4                              laws to air carrier, page 8



                                        Table of Contents
Supreme Court Litigation                                                                 2
Departmental Litigation in Other Federal Courts                                          8
Recent Litigation News from DOT Modal Administrations                                   16
    Federal Aviation Administration                                                     16
    Federal Highway Administration                                                      28
    Federal Motor Carrier Safety Administration                                         35
    Federal Railroad Administration                                                     39
    Federal Transit Administration                                                      41
    Maritime Administration                                                             43
    Pipeline and Hazardous Materials Safety Administration                              44
    Saint Lawrence Seaway Development Corporation                                       45
Index of Cases Reported in this Issue                                                   47
DOT Litigation News                                     March 31, 2011        Page 2

                                Supreme Court Litigation

Supreme Court Holds that NHTSA                    Court found that the 1984 version of
   Seatbelt Standard Does Not                     FMVSS No. 208, which required
                                                  installation of passive restraint devices,
  Preempt State Common Law
                                                  preempted a state tort suit against an auto
            Standard                              manufacturer on a failure to install a
                                                  particular passive restraint, airbags. The
On February 23, 2011, the Supreme Court           Court in Geier found preemption
unanimously ruled that a Federal Motor            notwithstanding a provision of the National
Vehicle Safety Standard (FMVSS) that              Traffic and Motor Vehicle Safety Act
permitted the installation of a lap belt          (Safety Act) that saves state common law
instead of a lap-and-shoulder belt in a           actions from preemption because that
particular minivan seating position, while        provision does not displace ordinary
allowing vehicle manufacturers the option of      conflict preemption principles, and the
installing a lap-and-shoulder belt in that        particular claim at issue in Geier conflicted
position, did not preempt a state common          with a significant safety-related objective
law tort action against the vehicle               of the 1984 standard – providing auto
manufacture for not installing a lap-and-         manufacturers, and therefore consumers,
shoulder belt in that position. The decision      with a choice among different kinds of
in Williamson v. Mazda Motor of America           passive restraints.
(No. 08-1314) reversed a decision of an
intermediate California state appellate
court. In so ruling, the Court agreed with        The Williamson Court agreed with the
the position of the United States in the          position of the United States and petitioner.
government’s amicus brief filed in support        It distinguished the 1984 standard at issue in
of the petitioner, the family of a woman          Geier from the 1989 standard. The Court
sitting in such a lap-belt-only seat when she     acknowledged that the 1989 standard
was killed in an accident.                        offered manufacturers a choice of belts to
                                                  install and that the tort suit here would
The 1989 version of FMVSS No. 208                 effectively restrict that choice. But in this
required auto manufacturers to install lap-       case, the reason for offering a choice was
and-shoulder belts on rear seats next to a        not related to a safety goal such as
vehicle’s doors or frames, but allowed the        increasing     consumer      acceptance     of
installation of either those belts or lap belts   alternative safety devices as was the case in
on rear-inner seats such as those next to a       Geier. Here, manufacturers were given a
minivan’s aisle. The Williamson family            choice because DOT determined that the
brought a tort suit claiming that Thanh           safer option, lap-and-shoulder belts, were
Williamson died in an accident because the        not cost effective. The court rejected that
rear aisle seat of the Mazda minivan in           rationale as a basis for conflict preemption,
which she was riding had a lap belt instead       noting that many federal safety standards
of a lap-and-shoulder belt. The State Court       embody a cost-effectiveness judgment. To
of Appeal affirmed the trial court’s              infer preemptive intent from the mere
dismissal of the case, relying on Geier v.        existence of such a cost-effectiveness
American Honda Motor Co., in which the            judgment would transform all such
DOT Litigation News                                     March 31, 2011         Page 3

standards    into    maximum       standards,     carrier.” 49 U.S.C. § 11501(b)(4). In so
eliminating the possibility that the agency       ruling, the Court agreed with the position of
seeks only to set forth a minimum standard        the United States in the government’s
that could be supplemented through state          amicus brief filed in support of the
tort law. Such a reading cannot be                petitioner, CSX. Justice Thomas wrote a
reconciled with the Safety Act’s savings          dissent, which was joined by Justice
clause. The court also noted that the             Ginsberg.
Solicitor General represented that DOT’s
regulation does not preempt in this case, that    The Court based its decision on the explicit
DOT has not expressed inconsistent views          language of the 4-R Act. First, the Court
on this subject, and that, as in Geier, “the      analyzed the meaning of the term “another
agency’s own views should make a                  tax” as used in subsection (b)(4) of the 4-R
difference.”                                      Act. Looking to the ordinary definition, the
                                                  Court found that “another tax” is expansive
The Court’s opinion is available at               and refers to any form of tax a State might
http://www.supremecourt.gov/opinions/10pd         impose, except taxes on property addressed
f/08-1314.pdf.                                    in subsections (b)(1) – (b)(3). In applying
                                                  this expansive definition of “another tax,”
The briefs associated with the case are           the Court also included tax exemptions in
available     at     http://www.abanet.org/       this category. Second, the Court turned to
publiced/preview/briefs/nov2010.shtml#will        determining whether a tax “discriminates”
iamson.                                           against a railroad because the State grants
                                                  exemptions to a railroad’s competitors.
Supreme Court Holds that Railroad                 Again, the Court looked to the ordinary
May Challenge State Non-property                  definition of “discrimination” and stated that
                                                  “’[d]iscrimination’ is the ‘failure to treat all
 Tax Exemption as Discriminatory
                                                  persons equally when no reasonable
 under Railroad Revitalization and                distinction can be found between those
     Regulatory Reform Act                        favored and those not favored.’” Based
                                                  upon this definition, the Court found that a
On February 22, 2011, the Supreme Court           State tax that exempts a railroad’s
ruled that a railroad may challenge a State’s     competitors may in fact discriminate. Thus,
non-property tax as discriminatory under the      the Court found that a State non-property tax
Railroad Revitalization and Regulatory            “that applies to railroads but exempts their
Reform Act of 1976 (4-R Act) even if the          interstate competitors is subject to challenge
discriminatory element arises from an             under subsection (b)(4) as a ‘tax that
exemption from the otherwise generally            discriminates against a rail carrier.’” The
applicable tax rather than from the tax itself.   Court noted its limited decision and
 The decision in CSX Transportation, Inc. v.      consequently that it did not address whether
Alabama Department of Revenue (No. 09-            Alabama’s taxes actually discriminate
520) reversed and remanded a decision of          against CSX or other railroads.
the U.S. Court of Appeals for the Eleventh
Circuit and resolved a split in the circuits      The Court also responded to Alabama’s
regarding the 4-R Act’s catch-all provision,      reliance upon the Court’s decision in
which forbids a State from imposing               Department of Revenue of Oregon v. ACF
“another tax that discriminates against a rail    Industries. The Court stated that its analysis
DOT Litigation News                                   March 31, 2011       Page 4

in ACF Industries did not apply because in      Privacy Act is not limited to pecuniary
that case, the Court analyzed a property tax,   damages. The Ninth Circuit’s decision
and the Court was constrained by the            deepened an existing circuit court conflict
statutory text provided in subsections (b)(1)   that now spans four circuits.
– (3). The Court did note that its decision
created a division between the treatment of     This case arose out of an investigation by
property tax exemptions and non-property        the DOT and Social Security Administration
tax exemptions. However, the Court said         (SSA) Inspectors General of Stanmore
that, for reasons that elude the Court,         Cooper and other individuals who held FAA
Congress drew a sharp line between              airman certificates notwithstanding the fact
property taxes and other taxes.                 that they were receiving disability payments
                                                from the SSA for conditions that would
Justice Thomas’ dissent agreed that             render them ineligible to hold such
subsection (b)(4) allows a railroad to          certificates. Following a guilty plea to a
challenge a non-property tax. However,          Federal misdemeanor for making or
Justice Thomas would have applied a             delivering a false official writing to a
different definition of “discrimination.” The   Federal agency and the revocation of his
dissent argues that to discriminate, a tax      FAA airman certificate, Cooper filed suit
exemption scheme must target or single out      against DOT, FAA, and SSA alleging
railroads in comparison to general              violations of the Act by these agencies in the
commercial and industrial taxpayers.            course of their investigation when they
Because CSX would not be able to satisfy        exchanged information about Cooper.
the dissent’s discrimination standard, the
dissent would have found in favor of            In August 2008, the U.S. District Court for
Alabama.                                        the Northern District of California granted
                                                summary judgment in favor of the
The Court’s opinion is available at             government.      The court held that the
http://www.supremecourt.gov/opinions/10pd       exchange and disclosure of Cooper’s
f/09-520.pdf.                                   information was a breach of the Privacy Act,
                                                but that the damages he sought under the
The briefs associated with the case are         Act – damages for the mental anguish he
available     at     http://www.abanet.org/     allegedly suffered as a result of the
publiced/preview/briefs/nov2010.shtml#csx.      violations of the Act – did not fall under the
                                                “actual damages” element of the Act, which
United States Seeks Supreme Court               only includes pecuniary damages. Without
 Review of Ninth Circuit Decision               addressing the other elements of a cause of
                                                action under the Privacy Act, the district
Allowing Non-pecuniary Damages
                                                court dismissed the complaint.
 for Violations of the Privacy Act
                                                Cooper appealed, and in February 2010, the
On February 14, 2011, the United States         Ninth Circuit found that the Act authorizes
sought Supreme Court review of the              damages for non-pecuniary as well as
decision of the U.S. Court of Appeals for the   pecuniary damages. The court concluded
Ninth Circuit in FAA, et al. v. Cooper (No.     that the intent of Congress in enacting the
10-1024) in which the court held that the       Privacy Act was “to extend recovery beyond
term “actual damages” as used in the            pure economic loss.” The court came to this
DOT Litigation News                                   March 31, 2011        Page 5

conclusion after considering the text of other   The government’s petition for certiorari is
sections of the Privacy Act, the purposes of     available at http://www.justice.gov/osg/
the Act, and decisions interpreting the words    briefs/2010/2pet/7pet/2010-1024.pet.aa.pdf.
“actual damages” under the Fair Credit
Reporting Act, which Congress passed in a        The Ninth Circuit opinion and the dissent to
contemporaneous timeframe. The Ninth             its en banc denial are available at:
Circuit also rejected the argument that the      http://www.ca9.uscourts.gov/datastore/opini
government’s waiver of sovereign immunity        ons/2010/09/16/08-17074.pdf.
through the Privacy Act should be narrowly
construed, with damages limited to                     Supreme Court Invites
economic loss.                                   Government’s Views on Certiorari
                                                  in Case Involving the Preemptive
The United States petitioned for panel
rehearing or, in the alternative, rehearing en   Scope of the Locomotive Inspection
banc, and on September 16, 2010, both were                       Act
denied with eight judges dissenting. Writing
for    the    dissenting     judges,     Judge   The Supreme Court has requested the views
O’Scannlain, concluded that “[t]he effect of     of the United States on whether to grant
today’s order [denying rehearing en banc] is     certiorari in John Crane, Inc. v. Atwell (No.
to open wide the United States Treasury to a     10-272), in which petitioner seeks review of
whole new class of claims without warrant.”      a Pennsylvania Superior Court decision
                                                 holding that the Locomotive Inspection Act
In its petition for certiorari, the government   (LIA) did not preempt state common law
noted the well-established canon that            tort claims seeking damages for alleged
requires any ambiguity in the scope of a         asbestos exposure. Atwell v. John Crane,
waiver of sovereign immunity be construed        Inc., 986 A.2d 888 (Pa. 2009).
narrowly in the government’s favor. The
petition contended that contrary to this         The LIA states that “[a] railroad carrier may
canon, the Ninth Circuit broadly construed       use or allow to be used a locomotive or
the Privacy Act’s waiver for “actual             tender on its railroad line only when the
damages” against the United States to            locomotive or tender and its parts and
include nonpecuniary damages, even though        appurtenances – (1) are in proper condition
the court acknowledged that the term does        and safe to operate without unnecessary
not unequivocally express a waiver for such      danger of personal injury; (2) have been
damages. The petition argued that this error     inspected as required under this chapter and
deserves Supreme Court review because it         regulations prescribed by the Secretary of
dramatically increases the government’s          Transportation under this chapter; and (3)
exposure to Privacy Act damages in the           can withstand every test prescribed by the
Nation’s largest geographic circuit and          Secretary under this chapter.” 49 U.S.C. §
extends an existing division among the           20701. In Napier v. Atlantic Coast Line
courts of appeals: whereas the Sixth and         R.R. Co., the Supreme Court determined
Eleventh Circuits have correctly concluded       that the LIA occupied the field of regulating
that the Privacy Act does not subject the        locomotive equipment and extended to “the
government to liability for non-pecuniary        design, the construction, and the material of
harm, the Fifth Circuit and now the Ninth        every part of the locomotive and tender and
Circuit have both held the opposite.             of all appurtenances.” 272 U.S. 605, 611
DOT Litigation News                                    March 31, 2011        Page 6

(1926). Since Napier, many courts have            On August 23, 2010, JCI petitioned the
held that the scope of the LIA encompasses        Supreme Court for certiorari citing to the
state common law claims.                          apparent conflict between the decisions of
                                                  the Pennsylvania state courts and those of
Mr. Atwell was a railroad pipefitter, and in      other jurisdictions. JCI continues to argue
the course of his duties for the railroad, he     that the LIA occupies the field of
installed asbestos-containing packing and         locomotive safety and preempts the state
gaskets manufactured by JCI to prevent            common law tort claim of a railroad
leaks on locomotives and boilers after they       employee who has sued a manufacturer for
had been brought into the railroad                causing an asbestos-related disease. JCI
maintenance shop for servicing and repairs.       contends that the state court’s decision
After working approximately 40 years in           conflicts with the Supreme Court’s decision
this environment, he was diagnosed with           in Napier v. Atlantic Coast Line R.R. Co.,
lung cancer caused by asbestos exposure and       272 U.S. 605 (1926), and with a group of
ultimately died as a result of his illness. Mr.   recent cases from other jurisdictions holding
Atwell brought suit in Pennsylvania state         that the LIA preempts finding state common
court alleging injury from his exposure to        law claims against manufacturers. The
asbestos. In response, JCI argued that the        executor of Mr. Atwell’s estate argues that
LIA preempted Mr. Atwell’s claims and             the holding in Napier was overturned by the
moved to dismiss the case.                  The   enactment and subsequent amendment, in
Pennsylvania trial court denied the motion        2007, of the Federal Railroad Safety Act
and a jury subsequently found that Mr.            (FRSA). Furthermore, Mr. Atwell argues
Atwell was exposed to asbestos through JCI        that neither the LIA nor the FRSA is
products and that the exposure caused his         applicable to general workplace safety
lung cancer. JCI appealed the judgment to         issues occurring in railroad repair shops.
the Pennsylvania Superior Court. Again,
relying on Napier and the line of recent          There are two similar cases pending before
decisions finding state common law claims         the Supreme Court on petitions for
against manufacturers preempted by the            certiorari, Griffin Wheel Co. v. Harris (No.
LIA, JCI argued that the plaintiff’s claims       10-253) and Kurns v. Railroad Friction
were preempted by the LIA because the             Prod. (No. 10-879). These cases also raise
statute occupied the field of locomotive          preemption questions under the LIA and the
safety. The Superior Court disagreed with         Safety Appliance Acts. At present, the
JCI’s preemption argument and, citing the         Supreme Court has not requested the views
Pennsylvania Supreme Court’s decision in          of the United States on these cases.
Norfolk & Western Ry. v. Pa. Pub. Util.
Comm'n, 413 A.2d 1037 (Pa. 1980), found            Supreme Court Denies Certiorari
that “state tort law, especially in strict
                                                    in New York City Hybrid Taxi
liability cases, occupies one of the
interstices not covered by Congressional                  Preemption Case
command.” Atwell v. John Crane Inc., 986
A.2d 888, 894 (Pa. 2009). Although, the           On February 28, 2011, the Supreme Court
Superior Court recommended that the               denied the City of New York’s petition for
Pennsylvania Supreme Court hear the case,         certiorari in Metropolitan Taxicab Board of
it declined to do so.                             Trade v. City of New York (No. 10-618), in
                                                  which the U.S. Court of Appeals for the
DOT Litigation News                                    March 31, 2011          Page 7

Second Circuit affirmed an order of the U.S.     subject of pervasive local regulation for
District Court for the Southern District of      decades prior to passage of EPCA and the
New York enjoining New York City taxicab         CAA in the 1960s and 1970s.
regulations (the TLC regulations) on the
ground that they are preempted by the            The Second Circuit rejected the arguments
Energy Policy and Conservation Act               of the City and the United States and held
(EPCA), 49 U.S.C. § 32901 et seq. The case       that the TLC regulations were “based
was brought by a group of taxicab owners.        expressly on the fuel economy of a leased
The district court had also held that the TLC    vehicle” and thus “plainly fall within the
regulations were preempted by the Clean Air      scope of the EPCA preemption provision.”
Act (CAA), but the circuit court declined to     In its petition for a writ of certiorari, the City
reach that issue after finding EPCA              argued that the TLC regulations are not
preemption.                                      preempted by EPCA because they are not
                                                 regulations “related to” fuel economy
Under EPCA, NHTSA administers the                standards.      The City also argued that
Corporate Average Fuel Economy (CAFE)            Congress did not intend to preempt state and
program. The New York City Taxicab &             local governments from adopting incentive
Limousine      Commission       (TLC)     had    programs to promote the purchase of fuel-
promulgated regulations to promote the           efficient vehicles and that, under the Court’s
purchase of hybrid and clean diesel taxicabs     preemption       jurisprudence,      the     TLC
by taxicab operators by reducing the rates at    regulations do not have the purpose or effect
which the taxicab owners may lease other         of regulating fuel economy.
vehicles to taxi drivers and increasing those
rates with respect to hybrid vehicles.           The taxicab owners argued in their
                                                 opposition brief that the Second Circuit’s
At the Second Circuit’s invitation, the          interpretation of EPCA’s preemption clause
United States filed an amicus brief in which     was correct and did not conflict with any
it supported reversal of the district court on   other court decision. The taxicab owners
the ground that the TLC regulations are not      argued that the TLC regulations are “related
preempted. In its brief, the United States       to” federal fuel economy standards because
argued that the Second Circuit did not need      they have the purpose and effect of
to determine whether the TLC regulations         regulating vehicle fuel economy and
are “related to” fuel economy standards          imposed what they termed a “de facto
within the meaning of the EPCA (or CAA)          mandate” to taxicab operators to purchase
preemption clause. Instead, the government       fuel-efficient and low emission vehicles.
contended that the issue was the antecedent
question of whether the City of New York
has adopted or enforced regulations of the
type that Congress sought to preempt under
EPCA or the CAA, particularly since the
regulation of taxi services had been the
DOT Litigation News                                     March 31, 2011         Page 8

                Departmental Litigation in Other Courts

   Tenth Circuit Finds State                  Act (ADA), which bars State and local
 Regulation of Airline Alcohol                regulations related to airline “prices,
                                              routes, and services.” They also argued
Service Preempted, Remands for
                                              that the New Mexico regulations are
   21st Amendment Analysis                    preempted because on-board alcohol
                                              service and flight attendant training is
On December 3, 2010, the U.S. Court of        within the field of aviation safety
Appeals for the Tenth Circuit issued its      reserved exclusively to the Federal
decision in US Airways v. O’Donnell,          Aviation Administration, which has its
627 F.3d 1318 (10th Cir. 2010), an            own alcohol service and training
appeal of a district court decision           requirements. Finally, appellant and the
holding that New Mexico could subject         government argued that the 21st
US Airways to State alcoholic beverage        Amendment’s grant of power to the
regulations if the airline serves alcoholic   states to regulate alcohol, if implicated at
beverages on flights into and out of the      all, does not save the New Mexico law
State. The Tenth Circuit reversed the         because, under the circumstances of this
district court, holding that New              case, the federal interest in airline
Mexico’s regulations are impliedly            competition and uniformity of safety
preempted, and remanded the case to           regulation outweighs the State’s interest.
allow the district court to conduct a 21st
Amendment balancing of New Mexico’s           The Tenth Circuit reversed the district
core powers and the federal interests         court based on several findings. First, the
underlying uniform aviation regulation        court determined that regulation of an
pursuant to the Federal Aviation Act.         airline’s alcoholic beverage service
                                              implicated the field of airline safety.
New Mexico’s attempt to regulate the          Second, the court found that New
airline came after a US Airways               Mexico’s regulatory scheme extended
passenger, who was served alcohol on a        beyond the narrow field of alcoholic
flight to New Mexico, caused a car            beverage services because it prescribed
accident with multiple deaths a few           training and certification requirements
hours after landing.          The State       for flight attendants and other airline
regulations include a training regime for     crew members serving alcoholic
flight attendants serving alcoholic           beverages on aircraft. Third, the court
beverages on board. The United States         noted that flight attendant and crew
filed an amicus brief in the case             member       training    programs      and
supporting US Airways, as did ten             certification requirements were already
former Secretaries of Transportation.         extensively regulated by federal aviation
                                              safety law. Fourth, the court found that
Appellant and the United States argued        the field of aviation safety has never
that New Mexico’s alcoholic beverage          been traditionally occupied by the states
regulations as applied to an airline are      and has long been dominated by federal
preempted by the Airline Deregulation
DOT Litigation News                                       March 31, 2011        Page 9

interests. For these reasons, the court         rehearing and rehearing en banc of the
concluded that the Federal Aviation Act         U.S. Court of Appeals for the Federal
was intended to centralize aviation             Circuit’s decision in Ladd v. United
safety regulation under a comprehensive,        States, 630 F.3d 1015 (Fed. Cir. 2010).
uniform, and exclusive system of federal        In this case, a Federal Circuit panel
regulation in the field of air safety, to the   reversed the trial court and held that the
exclusion of state regulations like those       Surface Transportation Board (STB)’s
at issue here. The court did not decide         issuance of a Notice of Interim Trail Use
the issue of express preemption under           (NITU) amounts to a physical taking.
the ADA, an issue of first impression in
the Tenth Circuit and one on which other        This case arose out of the federal
circuits are split.                             railbanking program, which promotes
                                                the preservation of railroad corridors by
The next step of the court’s analysis           creating recreational trails for public use
required consideration of the parties’ 21st     along abandoned railroad rights-of-way.
Amendment analyses to determine                 When a railroad seeks permission from
whether New Mexico’s prerogatives               the STB to abandon service on a rail line
under the Amendment could override the          containing a federally granted right-of-
preemptive effect of federal aviation           way, qualified parties may petition the
safety regulation. New Mexico argued            STB to assume responsibility for
that because the case involved a core           management and maintenance of a
power of the state, licensing, a balancing      recreational trail along the right-of-way.
under the 21st Amendment was not                If the railroad is willing to negotiate a
required. The court disagreed, holding          trail agreement with that party, the STB
that a balancing may be conducted out of        issues the two parties a NITU, which
concern that a state exercising its 21st        delays abandonment of the rail line for
Amendment power might violate the               180 days and authorizes conversion of
Supremacy Clause when state regulation          the right-of-way for use by the general
conflicts with federal law. Accordingly,        public as a trail if an agreement is
the Tenth Circuit remanded the case to          reached. Pursuant to the NITU, interim
allow the district court to conduct the         trail use is subject to the restoration of
balancing of federal and state interests.       rail service at any time and the STB
                                                retains jurisdiction of the right-of-way
The Tenth Circuit’s opinion is available        for future railroad use.
at        http://www.ca10.uscourts.gov/
opinions/09/09-2271.pdf.                        The Ladds are property owners along a
                                                76.2 mile rail line in Arizona near the
   Government Seeks Panel                       United States-Mexico border. Through
  Rehearing or Rehearing En                     federal and private conveyances, a rail
                                                carrier acquired the right to use a 100
  Banc in Federal Railbanking
                                                feet wide, 76.2 mile strip of the Ladds’
    Program Takings Case                        land to build and operate a railroad and
                                                had done so since 1903. According to
On February 28, 2011, the United States         the Ladds, they retained fee simple
filed a combined petition for panel             estates in the portions of their land
DOT Litigation News                                      March 31, 2011        Page 10

underlying the rail line. In October           Circuit held that a takings claim accrues
2005, the rail carrier filed a petition with   for purposes of the statute of limitations
the STB to initiate abandonment                when a NITU is issued. In its petition
proceedings for the 76.2 mile rail line.       for panel rehearing or, in the alternative,
The STB issued a NITU after a trail            rehearing en banc, the United States
operator petitioned the STB and the rail       urges the Federal Circuit to apply
carrier indicated its willingness to enter     established Supreme Court takings
into trail use negotiations with the trail     jurisprudence and to affirm the trial
operator.       The NITU suspended             court’s judgment.
abandonment          proceedings        and
authorized a 180-day period for the two        The Federal Circuit’s opinion is
parties to negotiate a trail use agreement.    available at http://www.cafc.uscourts
However, the parties did not reach a trail     .gov/images/stories/opinions-orders/10-
use agreement and a recreational trail         5010.pdf.
was not established.
                                                  Fourth Circuit Upholds
The Ladds filed a suit against the United      Dismissal of Challenge to Dulles
States in the Court of Federal Claims
                                                    Metrorail Extension
alleging a violation of the Takings
Clause of the Fifth Amendment. They
                                               On March 21, 2011, the U.S. Court of
argued that the NITU had forestalled or
                                               Appeals for the Fourth Circuit upheld a
taken their state law reversionary
                                               lower court decision dismissing the
property interests, and pursuant to two
                                               claims of Parkridge 6, LLC challenging
prior Federal Circuit railbanking cases, a
                                               the Washington Metrorail extension to
taking of their property occurred when
                                               Dulles        International      Airport.
the STB issued the NITU. The court
                                               Plaintiffs/appellants had alleged fifteen
concluded that no taking had occurred
                                               violations of the FTA, FHWA, and FAA
and granted the government’s Motion
                                               authorization statutes, the Virginia
for Summary Judgment. In dismissing
                                               constitution, the Virginia Public-Private
the case, the court concluded that “[a]
                                               Partnership Act, and the terms of the
physical taking cannot have occurred in
                                               Metropolitan Washington Airport’s
these circumstances, where neither the
                                               Authority’s (MWAA) lease of the Dulles
NITU nor another aspect of the federal
                                               access right-of-way from DOT. The
abandonment process has resulted in
                                               defendants/appellees in the case were
construction of a trail for public use.”
                                               DOT, FAA, FHWA, FTA, the Virginia
                                               Department of Transportation (VDOT),
The Ladds appealed and a Federal
                                               and MWAA. In its decision in Parkridge
Circuit panel reversed the lower court’s
                                               6, LLC et al. v. DOT, et al., 2011 WL
decision. The panel found that the
                                               971530 (4th Cir. 2011), the Fourth
issuance of a NITU amounts to a taking
                                               Circuit affirmed the U.S. District Court
because the NITU is the government
                                               for the Eastern District of Virginia,
action that blocks the landowners’ state
                                               holding that the petitioner lacked both
law reversionary property interests. The
                                               constitutional and prudential standing to
panel based its decision on two of its
                                               sue the federal government and that the
prior decisions in which the Federal
DOT Litigation News                                   March 31, 2011        Page 11

court lacked jurisdiction to hear a claim    In 2006, VDOT entered into a public
that alleged that VDOT and MWAA              private partnership that was approved by
violated the state FOIA statute.             FHWA for the funding, construction and
                                             operation of new toll lanes and
   Court Dismisses Arlington                 associated       major      infrastructure
     County Environmental                    modifications along the length of the I-
                                             95/I-395 corridor from Spotsylvania
   Challenge to I-95 Hot Lanes
                                             County to the Pentagon interchange in
                                             Arlington County.         The complaint
On February 9, 2011, the U.S. District
                                             alleges that FHWA improperly defined
Court for the District of Columbia
                                             the Project in a manner unrelated to the
dismissed without prejudice County
                                             reality    of    its   geographic     and
Board of Arlington v. DOT, et al.
                                             environmental scope. The complaint
(D.D.C. No. 10-01570).          Arlington
                                             states that FHWA illegally issued a
County, Virginia, filed this suit in
                                             Categorically Exclusion (CE) for the
August, 2009 against the Department,
                                             Project, exempting it from full NEPA
FHWA, the Virginia Department of
                                             and Clean Air Act review requirements.
Transportation (VDOT), and four federal
                                             The complaint alleges that in doing so,
and state officials alleging violations of
                                             defendants ensured that the full
NEPA, the Clean Air Act, the Federal-
                                             environmental and public health impacts
Aid-Highway Act, Title VI of the Civil
                                             along with the potential degradation of
Rights Act, the 5th and 14th Amendments
                                             the existing transportation system in the
of the U.S. Constitution, and sections of
                                             corridor and the disparate impact of the
the     Commonwealth        of    Virginia
                                             Project on minority and low-income
Constitution arising from the approval of
                                             communities would not be adequately
the construction of a proposed
                                             analyzed and disclosed to the public.
HOV/HOT lane highway project in
                                             With respect to the Project’s impacts on
Northern Virginia. What sets this case
                                             minority communities, the County also
apart from the usual environment suit is
                                             alleged violations of federal civil rights
the fact that the County took the
                                             laws. Arlington sought to stay further
virtually unprecedented step of naming
                                             implementation of this agreement
Secretary         LaHood,          FHWA
                                             pending a full and comprehensive
Administrator Mendez, and the former
                                             environmental, public health, and
Secretary of VDOT as defendants in
                                             transportation review of the Projects
both their personal capacity as well as in
                                             impact.
their official capacity. The County
amended its complaint in August 2010,
                                             On December 13, 2010, the government
naming Edward Sundra, an FHWA
                                             filed a motion to dismiss the individual
Virginia Division employee, in his
                                             capacity claims, arguing qualified
personal and official capacity. The
                                             immunity defenses and also noting that
amended complaint also sought personal
                                             Secretary LaHood and Administrator
monetary damages from all the
                                             Mendez were not in office at the time the
individual defendants.
                                             CE was issued. On February 2, 2011,
                                             Virginia announced that it would initiate
                                             a new Hot Lanes Project that would not
DOT Litigation News                                    March 31, 2011         Page 12

traverse Arlington County or the City of     parties (the cities of Dallas and Ft.
Alexandria. The County, citing this          Worth, the DFW airport board,
change in circumstances, moved to stay       Southwest Airlines, and American
the litigation. On February 9, 2011, the     Airlines)    reached     agreement     on
Court denied the motion as moot and          resolving their disputes about the use of
dismissed the complaint without              Love Field, including the demolition of
prejudice and stated that the matter will    the LTP terminal.           The parties
be dismissed with prejudice on March         recognized the anticompetitive nature of
28, 2011, unless either party moves to       their agreement and urged Congress to
reinstate.    On February 11, 2011,          adopt legislation permitting it to go
Plaintiff submitted a Notice of Voluntary    forward. Later that year, Congress
Dismissal. On March 25, 2011, the            responded by enacting the Wright
government filed a motion requesting a       Amendment Reform Act (WARA),
ruling on the merits of its pending          which referenced the aforementioned
motion to dismiss, stating that the          agreement in phasing out existing
individual federal defendants seek           restrictions and imposing others. In
vindication of their right to dismissal of   order to ensure that Love Field did not
the personal capacity claims so there is     expand, the concerned parties had
no doubt that the claims against them are    agreed, and WARA included a
baseless.       Arlington County has         provision, to cap the number of
indicated that it opposes the relief         passenger gates permitted at the airport.
requested in the government’s motion.        LTP alleges that these restrictions took
                                             its property. The complaint seeks $120
   Court Rules against U.S. on               million as just compensation.
    Love Field Takings Claim
                                             In November 2008, the federal
On February 11, 2011, the Court of           government filed a motion to dismiss for
Federal Claims denied the government’s       failure to state a claim. The motion
motion to dismiss and granted the            pointed out that WARA does not
plaintiffs’ motion for partial summary       mandate any physical occupation or
judgment in Love Terminal Partners v.        appropriation of plaintiffs’ property and
United States, 2011 WL 613263 (Fed.          thus did not qualify as a physical taking.
Cl. 2011), in which Love Terminal            The motion denied that the legislation
Partners (LTP) seeks compensation for        placed meaningful restrictions on the use
an alleged taking of their property (a       of plaintiff’s property, and thus it did not
passenger terminal facility and other        amount to a regulatory taking. The
structures at Love Field in Dallas,          motion also contended that any
Texas) through federal legislation.          frustration of plaintiff’s business
                                             expectations as the result of WARA is
Congress has long imposed restrictions       merely derivative of or tangential to the
on air carrier operations at Love Field      law’s restriction on operations at Love
under the Wright Amendment in order to       Field, and therefore as a matter of law
support Dallas-Ft.Worth International        did not amount to a taking.
Airport (DFW). In 2006, the concerned
DOT Litigation News                                     March 31, 2011         Page 13

The plaintiffs opposed the government’s       the United States, which as the principal
motion and cross-moved for summary            remained liable for the payment of just
judgment with respect to their passenger      compensation.
terminal. They argued that WARA
incorporates      the     aforementioned      Plaintiffs have sought in excess of $100
agreement among public and private            million in compensation. The court has
parties in Texas and, in fact, compels        not yet determined the amount of
them to comply with the terms of the          compensation due to plaintiffs, only
agreement, including the demolition of        ruling on the liability issues at this time.
the LTP passenger terminal. The
plaintiffs relied heavily upon a district     The Court of Federal Claims’ decision is
court decision to that effect in an           available at http://www.uscfc.uscourts
antitrust case brought by LTP against         .gov/sites/default/files/SWEENEY.LOV
these same Texas parties.                     ETERMINAL021111.pdf.

On reply, the government countered that           New York DBE Applicant
the District Court in the private antitrust       Challenges Denial of DBE
case had misread WARA. Alternatively,
                                                        Certification
if WARA compels the parties to carry
out the terms of their agreement, the
                                              On January 20, 2011, a New York metal
government pointed out that the terms of
                                              subcontractor and installer filed an
that agreement also (1) required Dallas
                                              action in the U.S. District Court for the
to exercise its eminent domain authority
                                              Eastern District of New York seeking
to condemn the passenger terminal and
                                              review of DOT’s determination that it
to pay for this out of fees imposed on
                                              was not eligible to participate in New
airport users, and (2) forbade use of
                                              York’s      Disadvantaged       Business
federal funds for the demolition. This
                                              Enterprise (DBE) program. DOT’s DBE
approach therefore required that any
                                              program is intended to ensure
liability for taking plaintiffs’ property
                                              nondiscrimination in the award and
rested with Dallas and not the federal
                                              administration of DOT-assisted contracts
government.
                                              in the Department’s highway, transit,
                                              airport, and highway safety financial
In its February 11 decision, the court
                                              assistance programs. While the DBE
ruled that WARA had indeed
                                              program is administered by FTA,
incorporated the 2006 agreement of the
                                              FHWA, FAA, and state transportation
airlines and the cities of Dallas and Ft.
                                              agencies, a DBE applicant who is denied
Worth. This act, in the Court’s view,
                                              DBE certification may file an
transformed the agreement’s provisions
                                              administrative appeal with DOT’s Office
from     contractual     obligations   to
                                              of Civil Rights (DOCR).
federal mandates, so that WARA
required Dallas to demolish plaintiffs’
                                              In the complaint filed in Beach Erectors,
terminal and to adhere to the remaining
                                              Inc. v. DOT, et al. (E.D.N.Y. 10-5741),
terms of the agreement. Finally, the
                                              the plaintiff claims that DOCR’s
Court concluded that under WARA,
                                              decision to uphold the state agency’s
Dallas had simply acted as the agent of
DOT Litigation News                                     March 31, 2011        Page 14

denial of DBE certification to it was            Court Requests Views of the
“arbitrary, capricious, unsupported by             United States in Airline
substantial evidence, and inconsistent
                                                      Preemption Case
with [DOT] regulations.” Among other
forms of relief, the plaintiff seeks an
                                              On February 7, 2011, the U.S. District
order vacating DOCR’s decision and
                                              Court for the Northern District of
requiring DOCR to grant it immediate
                                              California issued a Request for Input
DBE status. The government filed its
                                              from the        U.S.     Department      of
answer to the complaint on March 25.
                                              Transportation in National Federation of
                                              the Blind, et al. v. United Air Lines
FHWA and FTA Defend Against                   (N.D. Cal. No. 10-04816).              The
     Tenants' Lawsuit                         complaint alleges that United Air Lines
                                              (United) is violating California’s Unruh
On September 3, 2010, a Complaint for         Civil Rights Act and the Disabled
Declaratory and Injunctive Relief and         Persons Act because its automated
Eviction Trial De Novo was filed against      ticketing kiosks located in California
FHWA, FTA, and other parties in the           airports are not accessible to blind
U.S. District Court for the Central           customers.        The court’s request
District of California. Gaxiola et al. v.     specifically asks the Department whether
City of Los Angeles, et al. (C.D. Cal.        its Air Carrier Access Act (ACCA)
No. 10-06632) appears to be a pro se          regulations preempt application of
lawsuit by several low-income persons         California state law as to requiring blind-
displaced from their residences in the        accessible ticketing kiosks at airports
"Pickle Works Building," which is in the      and whether the Airline Deregulation
footprint of the FHWA-approved First          Act (ADA) preempts state anti-
Street Viaduct Widening Project and the       discrimination laws related to airline
FTA-funded Los Angeles County                 service as to blind patrons regarding
Metropolitan Transportation Authority         kiosks.
East Side Light Rail project. Plaintiffs
allege violations of the First, Fourth,       In 2008, the Department considered
Fifth, and Fourteenth Amendments, the         requiring air carriers to provide
Fair Housing Act, the Uniform                 accessible kiosks. As part of a notice of
Relocation Act, Title VIII of the Civil       proposed        rulemaking      regarding
Rights,     and     the      Administrative   amendments to the ACAA regulations,
Procedure Act. The lead plaintiff,            the Department requested comments on
Gaxiola, as well as other tenants, were       whether the final rule should require
evicted from the Pickle Works building.       automated kiosks and if so, what
Plaintiffs are seeking injunctive and         accessibility standards should apply. 73
declaratory relief, and compensatory          Fed. Reg. 27,619.         However, the
damages. Federal defendants filed a           Department did not receive sufficient
timely Answer in November 2010,               information to determine the cost and
denying all of plaintiff's claims.            technical issues that would be involved
                                              with this requirement.        Thus, the
                                              Department stated its intent to seek
DOT Litigation News                                     March 31, 2011        Page 15

further comments about automated              and scheduling of transportation, and to
kiosks      through     a    forthcoming      the selection of markets to or from
supplemental notice of proposed               which transportation is provided.”
rulemaking. As an interim measure, the        Charas v. Trans World Airlines, 160
final rule requires air carriers, whose       F.3d 1259, 1265-66 (1998) (en banc).
kiosks are not accessible, to provide         Plaintiffs also argue that even if
equivalent service to passengers with         automated kiosks are “services,” the
disabilities, but does not require air        effects are “too remote, tenuous, or
carriers to provide automated kiosks that     peripheral.” Morales v. Trans World
are accessible to persons with                Airlines, 504 U.S. 374, 390 (1992).
disabilities. 14 C.F.R. § 382.57.
                                                DOT Mediates Settlement of
On December 27, 2010, United filed a           O’Hare Expansion Project Suit
Motion to Dismiss, arguing that the
plaintiffs’ claims are preempted by the       On March 14, 2011, Secretary LaHood
ACAA and the ADA. Specifically,               announced a settlement of a suit brought
United argues that the ACAA occupies          by United Air Lines and American
the field of nondiscrimination against        Airlines against the City of Chicago
disabled passengers in all aspects of         (City) over the completion of the O’Hare
commercial air travel. Furthermore,           Modernization Program (OMP), a multi-
United argues that the Department             year, multi-billion dollar project
considered and rejected imposing              designed to increase capacity and
requirements for automated kiosks to be       upgrade facilities at Chicago’s primary
accessible, and thus conflict preemption      airport, which plays a critical role in
forecloses plaintiffs’ claims. Finally,       ensuring the safety and efficiency of air
United argues that the ADA expressly          travel throughout the United States.
preempts state regulation of airline          DOT was not a party to the state court
“services.”                                   action, United Air Lines, et al. v. City of
                                              Chicago (Ill. Cir. Ct. Cook County, Ch.
Plaintiffs argue that the Federal Aviation    Div. 11-2081), but Secretary LaHood,
Act of 1958 contains a savings clause         supported by a team of legal, policy, and
which applies to the Air Carrier Access       program officials from OST and FAA,
Act. The savings clause states that           was instrumental in mediating the
“[n]othing in this Act shall in any way       dispute and crafting the terms of the
abridge or alter the remedies now             settlement.
existing at common law or by statute,
but the provisions of this Act are in         The airlines’ suit alleged that under their
addition to such remedies.”         Thus,     Use Agreement with the City, which
pursuant to this savings clause, plaintiffs   defines the airlines’ rights and
contend that their claims are not             obligations in connection with their use
preempted.       Furthermore, plaintiffs      of O’Hare, the City may not proceed
argue that automated kiosks are not a         with the OMP or its financing without
“service” under the ADA, as the Ninth         first obtaining the airlines’ approval.
Circuit previously held that “service”        The airlines sought a declaratory
“refers to such things as the frequency
DOT Litigation News                                   March 31, 2011        Page 16

judgment that the City is contractually      this phase of the project through General
obligated to obtain such approvals           Aviation Revenue Bonds and that the
before commencing construction or            remaining portions will be funded
issuing bonds to finance construction.       through Passenger Facility Charges and
They also sought to enjoin the City from     FAA Airport Improvement Program
commencing construction or issuing           funding coupled with bonds backed by
bonds pending adjudication on the            these revenue sources. The City and the
merits of the declaratory judgment           carriers agreed that they would begin
claims. The City contended that the Use      negotiations on the remaining phases of
Agreement allows the City to proceed         the OMP no later than March 1, 2013.
with the OMP without the airlines’           Under the terms of the settlement,
approval and moved to dismiss the case.      United and American agreed to dismiss
                                             their lawsuit, and the City agreed to
The $1.7 billion settlement agreement        withdraw its notice to proceed with
reached by the parties with the assistance   capital projects without approval from
of DOT provides for the construction of      the airlines. As part of the agreement,
a new south runway and the completion        the airlines will approve all of the
of a second runway, taxiways, and other      projects covered by the agreement.
facilities that will be of immediate use
and will eventually enable the remaining
north runway phase of the OMP. The
airlines agreed to fund $298 million of


   Recent Litigation News from DOT Modal Administrations

        Federal Aviation                     categories of aircraft from using the
                                             Santa Monica airport.          The City
         Administration                      maintained that the operation of these
                                             aircraft, primarily small general aviation
  D.C. Circuit Affirms FAA’s                 jets, was dangerous because of the
      Decision Invalidating                  limited overrun areas at the end of the
 City of Santa Monica’s Jet Ban              runways and the close proximity of
                                             houses and businesses to the airport.
On January 21, 2011, the U.S. Court of       The FAA’s position was that these
Appeals for the District of Columbia         aircraft could operate safely and that
Circuit issued its decision in City of       banning them would violate the terms of
Santa Monica v. FAA, 631 F.3d 550            the contractual assurances the City had
(D.C. Cir. 2011), denying the petition for   made when it accepted federal funds
review. This petition arose out of years     under the Airport Improvement Program
of disagreement between the City of          (AIP).      Specifically, the City was
Santa Monica (the City) and the FAA          required to make the airport available for
over the City’s attempt to ban certain
DOT Litigation News                                    March 31, 2011         Page 17

public use without unjust discrimination     categories of aircraft, and that any safety
to all types of aeronautical use.            concerns could be mitigated through the
                                             installation of an Engineered Materials
In 2008, the City formally adopted an        Arresting System (EMAS), which the
ordinance barring certain aircraft, which    City      had     repeatedly       rejected.
the FAA immediately challenged. In           Accordingly, the court denied the
May 2008, the FAA issued a “director’s       petition for review.
determination,” which concluded, inter
alia, that the ordinance breached the        The D.C. Circuit’s opinion is available at
City’s obligations under its AIP grant       http://www.cadc.uscourts.gov/internet/o
assurances.      Thereafter, the City        pinions.nsf/3C0CBF7CB6985EDB8525
requested a hearing, and the FAA             781F00551E74/$file/09-1233-
appointed a Hearing Officer to consider      1289151.pdf.
the dispute. His decision was issued in
May 2009. Both the City and the FAA            D.C. Circuit Affirms FAA
appealed portions of the Hearing              Decision Approving Runway
Officer’s decision, which resulted in a
                                              Expansion at Fort Lauderdale
final agency decision in July 2009. In its
final decision, the FAA held that the            International Airport
City’s ordinance violated the AIP grant
assurances and was preempted by              On December 28, 2010, the U.S. Court
federal law. The City petitioned for         of Appeals for the District of Columbia
review.                                      Circuit affirmed the FAA’s decision
                                             approving runway expansion at Fort
On review, the court declined to             Lauderdale-Hollywood        International
consider the issue of preemption because     Airport (FLL).
it was able to decide the case on other
grounds. The court held that the FAA’s       FLL no longer has the capacity to meet
analysis of the aviation safety issues at    existing or future demand without
the Santa Monica airport was rationally      substantial delays. The airport owner,
based on substantial evidence in the         Broward County, sought several
record and that there was a rational         improvements, including expansion of
connection between the facts found and       the southern runway to 8,600 feet. After
the FAA’s conclusions. The court went        considering several alternatives and
on to hold that the City’s ordinance was     completing an environmental impact
discriminatory on its face, thus, the core   statement process, FAA issued a Record
issue in connection with the AIP             of Decision (ROD).
assurances      was      whether      such
discrimination was “unjust.”            In   Petitioners in City of Dania Beach, et al.
concluding that it was, the court noted      v. FAA, 628 F.3d 581 (D.C. Cir. 2010),
that the evidence showed a substantial       argued that FAA was required to select a
period of safe operation of the banned       different alternative because it had the
aircraft at Santa Monica, that past          fewest environmental impacts of all
experience showed a greater risk of          alternatives     studied      in    detail.
overruns and undershoots by other            Specifically, petitioners alleged that the
DOT Litigation News                                   March 31, 2011        Page 18

FAA’s finding that there were no             unconditionally approve a new ALP, the
“possible and prudent” alternatives          court held there was a final order subject
violated the Airport and Airway              to judicial review.
Improvement Act (AAIA), 49 U.S.C. §
47106(c)(1)(B), that its finding there       The first issue relating to 49 U.S.C. §
were no “prudent and feasible”               47106(c)(1)(B) is whether or the term
alternatives violated section 4(f) of the    “prudent” must have the same meaning
Department of Transportation Act, and        as it does in section 4(f) of the DOT Act.
that its finding there were no “practical    Deferring to FAA’s interpretation of the
alternatives” violated Executive Order       word “prudent,” the court agreed with
11990. The alternative selected by the       FAA that the word “prudent” did not
FAA was predicted to cause significant       have the same meaning under 49 U.S.C.
noise impacts to 1051 households and         § 47106(c)(1)(B) as it does under section
destroy 15.41 acres of wetlands while        4(f) of the DOT Act. Because the range
the one preferred by the City would          of resources protected under the AAIA -
cause such significant noise impacts to      natural resources, including fish and
285 households and destroy 15.40 acres       wildlife, natural, scenic, and recreation
of wetlands.                                 assets, water and air quality, or other
                                             factors affecting the environment - is
Broward County intervened, arguing that      broader than that protected under section
petitioners lacked standing and that the     4(f) - parks, recreation areas, and
FAA decision is not a “final order.”         wildlife or waterfowl refuges that have
Broward County argued that the               been declared significant - FAA’s
challenged actions were not final            interpretation was not arbitrary or
because they merely determined grant         capricious.
eligibility and did not actually approve a
grant. Intervenor also argued that a         Finally, the court agreed with FAA’s
favorable decision would not redress         determinations that section 4(f) of the
petitioners’ alleged injuries because the    DOT Act did not apply to the area
airport would proceed with construction      known as Brooks Park and that there
of the approved project without federal      was no “practicable alternative” to
grant funding.                               construction in wetlands.

The D.C. Circuit disagreed with              On March 2, 2011, the D.C. Circuit
intervenor’s     standing    arguments.      denied the City of Dania Beach’s
Regarding redressability, the court held     motions for panel rehearing and
that the airport expansion could only        rehearing en banc. Petitioners have until
proceed if FAA approved a new Airport        May 31, 2011 to file a petition for a writ
Layout Plan (ALP). Consequently, a           of certiorari to the U.S. Supreme Court.
determination that the FAA violated 49
U.S.C. § 47106(c)(1)(B) would redress        The D.C. Circuit’s opinion is available at
petitioners injury because an FAA            http://www.cadc.uscourts.gov/internet/o
determination under this statutory           pinions.nsf/7E8AB9E0628FB2C285257
provision is necessary for ALP approval.     807005C6E7A/$file/09-1064-
In addition, because FAA did in fact         1285049.pdf.
DOT Litigation News                                     March 31, 2011        Page 19

 Second Circuit Upholds FAA’s                 types, kinds, and classes of aeronautical
   Decision that Westchester                  activities,    including       commercial
                                              aeronautical activities offering services
   County Did Not Violate its
                                              to the public at the airport. In addition,
  Grant Assurance Obligations                 each FBO at the airport must be subject
                                              to the same rates, fees, rentals, and other
On November 2, 2010, the U.S. Court of        charges as are uniformly applicable to all
Appeals for the Second Circuit issued a       other FBOs making the same or similar
summary order in 41 North 73 West,            uses of such airport and utilizing the
Inc. (AVITAT) v. DOT, 2010 WL                 same or similar facilities.
4318655 (2d Cir. 2010), denying the
petition for review. Petitioner Avitat        On appeal, Avitat argued that the FAA:
challenged the FAA’s final agency             1) applied an incorrect standard of
decision finding that Westchester             review; 2) erroneously applied a
County did not violate its federal grant      “similarly situated” test to find that the
assurance obligations because it              County did not engage in unjust
permitted small aircraft Fixed Base           discrimination; 3) lacked substantial
Operators (FBO) to sell jet fuel in a         evidence to find that the County had not
limited capacity. The FAA determined          granted an exclusive right to the small
that such sales were in compliance with       FBOs and 4) erred in finding that the
the airport’s federal grant obligations       County maintained a proper fee structure
concerning economic discrimination,           under Grant Assurance 24.
exclusive rights, and its fee and rental
structure.                                    Avitat also challenged the FAA’s
                                              standard of review by insisting that
Avitat is a larger-class FBO at the           section 557(b) of the Administrative
Westchester County Airport servicing          Procedure Act applied to the FAA’s Part
larger general aviation (GA) aircraft.        16 process. The Court disagreed, noting
Two other FBOs serving the airport,           that “[s]ection 557 applies only to an
Westair and Panorama, are limited FBOs        adjudication required by statute to be
that service smaller GA aircraft,             determined on the record after
including small jet aircraft. Avitat has a    opportunity for an agency hearing.” The
lease enabling it to dispense and sell jet    court stated that “[h]ere, the regulations
fuel to any sized aircraft. The Westair       would only have granted the County an
and Panorama leases included the right        opportunity for a formal hearing and
to sell jet fuel to smaller aircraft under    only if there had been a finding of
certain conditions if approved by the         noncompliance by the agency.” Thus,
County. Avitat objected to the disparity      Avitat’s argument failed because the
in jet fuel selling rights for competitive    standard of section 557(b) did not apply
reasons.                                      in this case.

The grant assurances require the County       Avitat argued that it was not required to
to make its airport available as an airport   be “similarly situated” with the smaller
for public use on reasonable terms and        aircraft FBOs. The court pointed out
without unjust discrimination to all          that Avitat failed to demonstrate that the
DOT Litigation News                                    March 31, 2011        Page 20

FAA committed a legal error and that         Avitat’s failure to point to any credible
the “similarly situated” definition          evidence suggesting that the Airport was
“focuses our attention on those              not self-sustaining and thus FAA’s
distinctions that are legitimate bases for   conclusion that the County was not in
discrimination, and those that are not.”     violation of Grant Assurance 24 was
Avitat also argued in the alternative that   proper.
it was similarly situated. The court
found that the FAA compared the              The time to petition for rehearing and a
entities’ purposes and services, as well     writ certiorari has expired and the court
as their leases. The FAA did not abuse       has issued the final mandate.
its discretion in concluding that Avitat
and the small aircraft FBOs were not          Fifth Circuit Affirms Summary
similarly situated and thus could be               Judgment for FAA in
treated differently.
                                                     Retaliation Case
Avitat claimed the County granted an
                                             On November 3, 2010, the U.S. Court of
exclusive right to the small aircraft
                                             Appeals for the Fifth Circuit issued a
FBOs when it gave them “subsidies”
                                             decision in Jones v. United States, et al.,
while allowing them to compete with
                                             625 F.3d 827 (5th Cir. 2010), affirming
Avitat in the sale of jet fuel. The Court
                                             the district court’s grant of the
found Avitat mistaken; no exclusive
                                             government’s motion to dismiss for lack
right was conferred because no party
                                             of subject matter jurisdiction.        The
was excluded or debarred from
                                             appellant was an FAA employee who
exercising a like power, privilege, or
                                             applied for appointment as a Designated
right.
                                             Engineering Representative (DER) just
                                             prior to his departure from the FAA.
The Court also recognized and agreed
                                             When the FAA declined to appoint him
with FAA’s position that acknowledged
                                             as a DER, Jones claimed it was in
that unjust discrimination can result in
                                             retaliation for his Equal Employment
the constructive grant of an exclusive
                                             Opportunity activity while he was
right, but where the parties are not
                                             employed at the FAA and filed suit in
similarly situated, no such violation can
                                             district court alleging Title VII
occur. Avitat suggested that the small
                                             violations. In the district court, the
FBOs’ ability to sell jet fuel without
                                             United States argued that Jones’
paying market rent constituted an
                                             retaliation claim and the agency’s final
exclusive subsidy. The Court found no
                                             decision      concerning      his     DER
reason to disturb the FAA’s findings that
                                             appointment        were        inescapably
there was no evidence that Avitat was
                                             intertwined     and,    thus,     exclusive
subsidizing the small aircraft FBOs or
                                             jurisdiction rested in the courts of
that the small aircraft FBOs were
                                             appeals pursuant to 49 U.S.C. § 46110.
Avitat’s competition.
                                             The district court agreed and dismissed
                                             the complaint.         On appeal, the
Finally, the Court found Avitat’s
                                             Department of Justice withdrew its
arguments regarding fee and rental
structure unavailing. The Court noted
DOT Litigation News                                     March 31, 2011        Page 21

reliance on section 46110 and argued for      court’s conclusion was based on a 1955
affirmance on other grounds.                  letter in which an intermediate Fairchild
                                              data owner authorized the FAA to “loan”
The court reaffirmed the analysis of its      the data for certain purposes, without
recent decision in Ligon v. LaHood, et        any confidentiality restriction.      That
al., 614 F.3d 150 (5th Cir. 2010), and        “authorization” remained outstanding
held that the Jones’s complaint was, in       until 1997, when Fairchild withdrew
effect, a collateral attack on the FAA’s      permission for disclosure in connection
final order concerning his appointment        with another FOIA request for the same
as a DER and, therefore, was subject to       data. The court held that the secret
the exclusive jurisdiction of the court of    status of the data could not be restored
appeals under 49 U.S.C. § 46110.              upon the revocation of the authorization
Accordingly, the judgment of the district     disclosure some 40 years later; even if
court was affirmed.                           there was no evidence that the data had
                                              ever been disclosed. Second, the court
   Court Orders Release under                 held that to qualify as a trade secret, the
  FOIA of Aircraft Design Data                data must be commercially valuable, and
                                              it is not. Although the court admitted
On January 19, 2011, the U.S. District        that there was little guidance from the
Court for the District of Columbia issued     DC Circuit on the meaning of
the latest decision in the case of Taylor     “commercially valuable,” it reasoned
v. Babbitt, et al., 2011 WL 159769            that its essence rested in the concept of
(D.D.C. 2011), an action brought under        competitive advantage.         The court
the Freedom of Information Act (FOIA)         concluded that the F-45 design data from
to obtain certain technical data from         1935 was “obsolete” and, therefore,
1935 pertaining to the F-45 aircraft of       could not provide a competitive
the Fairchild Aircraft Corporation. (The      advantage. Accordingly, the data did not
lengthy history of this case, which is not    qualify for protection as a trade secret.
related to the substance of any FOIA          The government has decided not to
issue, is set forth in the district court’s   appeal.
opinion. See also Taylor v. Sturgell, 553
U.S. 880 (2008). Because the Fairchild        Court Dismisses Tort Claim over
Corporation (Fairchild) asserted that it         Suspended Airworthiness
was the ultimate successor to Fairchild                 Certificate
Aircraft Corporation and the drawings
and data in question were trade secrets,      On October 6, 2010, the U.S. District
the FAA withheld release of the records       Court for the Southern District of West
under FOIA exemption 4.                       Virginia granted the government’s
                                              motion to dismiss for lack of subject
The district court rejected the FAA’s         matter jurisdiction in Holbrook, et al. v.
arguments and ordered the release of the      United States, 2010 WL 3943736 (S.D.
documents. First, the court held that the     W.Va. 2010). This case arose out of a
records were not trade secrets because        claim under the Federal Tort Claims Act
they were no longer a secret. The             (FTCA) that the FAA was negligent in
DOT Litigation News                                     March 31, 2011        Page 22

having issued a standard airworthiness        jurisdiction, arguing that the inspector’s
certificate for certain Allouette model       conduct      was    covered      by    the
helicopters. The helicopter in question       “discretionary function” exception to the
was manufactured in France and                FTCA.
imported into the United States in
October 2000. An “Attestation” from           The court agreed with the government
the Groupement pour la Securite               and dismissed the complaint. The court
Aviation Civile accompanied the               wrote that in applying the airworthiness
application for the issuance of a standard    certificate rules, the inspector was
airworthiness certificate. The purpose of     confronted with regulations that set out
the Attestation was to assure that the        several different choices, depending on
aircraft had been manufactured in             the origin of the aircraft. The court
accordance with that country’s type           agreed that the inspector’s use of
certificate and had been inspected by         subsection (c) for imported aircraft was
officials in the manufacturing country.       correct, in spite of the plaintiff’s
Although the Attestation stated that the      argument that subsection (c) applied
aircraft had been manufactured in             only to new aircraft. More importantly,
compliance with FAA standards, it             the court held that, for application of the
disclosed that it had not been inspected      discretionary     function     test,    the
by French officials. Nevertheless, the        inspector’s       arguably        incorrect
FAA inspector assigned to the matter          application of the requirements of
concluded that the documentation was          subsection (c) was not relevant. The
adequate and issued a standard                only question was whether the nature of
airworthiness certificate.                    the action taken was subject to a policy
                                              analysis. The court wrote that exercising
In 2007, the FAA began a review of the        judgment in connection with an
certification of Allouette helicopters and    assessment of aviation safety was
determined that the lack of an inspection     precisely the type of policy decision the
by French officials made the aircraft         discretionary function exception was
ineligible for a standard airworthiness       intended to protect.
certificate.    The FAA secured an
emergency        suspension      of     the    Ninth Circuit Hears Argument
helicopter’s airworthiness certificate,        in Challenge to EA/FONSI for
effectively grounding the aircraft, which
                                                  Third Runway at Busiest
had been leased by the plaintiff. In
2009, the plaintiff filed a claim under the     General Aviation Airport in
FTCA, asserting that he had been                          Oregon
damaged by the negligent issuance of the
standard airworthiness certificate and        On February 9, 2011, the U.S. Court of
would not have entered into a costly          Appeals for the Ninth Circuit heard oral
lease if the FAA inspector had followed       argument in Barnes v. DOT (9th Cir. No.
the regulations. Following the denial of      10-70718), a challenge by three
his administrative claim, the plaintiff       individuals to the adequacy of an
filed suit. The United States moved to        environmental assessment and finding of
dismiss for lack of subject matter            no significant impact issued by the FAA
DOT Litigation News                                 March 31, 2011       Page 23

for a third runway and associated          constructed in the 1930s in Savannah,
taxiways, the relocation of a helicopter   Georgia. It was moved to Hanscom in
pad, and associated infrastructure         1948 and used by MIT for research until
improvements at the Hillsboro, Oregon      2001.     Local groups contend that
Airport.    Petitioners claim that an      Hangar 24 should be saved based on its
environmental impact statement should      historic qualities. The FAA, together
have been completed for this work at the   with Massport and the State Historic
busiest general aviation airport in        Preservation Officer, entered into a
Oregon. Petitioners also argue that the    memorandum of agreement that allows
FAA’s       decision    violated     the   for the demolition of the building but
Administrative Procedure Act and that a    requires Massport to take certain actions
public workshop did not fulfill the        to document its historic qualities.
requirement to provide the opportunity
for a public hearing under 49 U.S.C. §     Petitioners allege that the FAA violated
47106. The case is now pending for         NEPA, section 4(f) of the DOT Act, and
decision.                                  section 106 of the National Historic
                                           Preservation Act. The airport sponsor,
Briefing in Historic Preservation          Massport, was granted the right to
       Group Challenge to                  intervene.     The National Trust for
                                           Historic Preservation is participating as
   Replacement of Hangar at
                                           an amicus.
    Bedford-Hanscom Field
                                                  FAA “No Hazard”
On December 17, 2010, local groups led
by Safeguarding the Historic Hanscom          Determination for Proposed
Area’s      Irreplaceable     Resources        Cape Cod Wind Turbines
(SSHAIR) filed their opening briefing in             Challenged
the U.S. Court of Appeals for the First
Circuit in SSHAIR v. FAA (1st Cir. No.     On September 3, 2010, a petition for
10-1972), a challenge to the validity of   review was filed in the U.S. Court of
the FAA’s decision to approve a request    Appeals for the District of Columbia
to modify the airport layout plan (ALP)    Circuit challenging the FAA’s “no
for Bedford-Hanscom Field in Bedford,      hazard” determination in connection
Massachusetts.     The FAA filed its       with the proposed construction of 130
responsive brief on February 28, 2011.     wind turbines off the coast of
Hanscom Field is a small, general          Massachusetts. The project is known as
aviation airport with no commercial        “Cape Wind,” and the petition for
service operated by the Massachusetts      review was filed by the Town of
Port Authority (Massport).                 Barnstable, Massachusetts. Town of
                                           Barnstable v. FAA (D.C. Cir. No. 10-
The FAA approved an alternative that       1276).     Thereafter, the Alliance to
allows the replacement of a hangar         Protect Nantucket Sound filed a similar
called Hangar 24 with a newer larger       petition for review (D.C. Cir. No. 10-
hangar capable of housing and servicing    1307), and the court consolidated the
today’s aircraft.     Hangar 24 was        cases. Cape Wind Associates, LLC, the
DOT Litigation News                                   March 31, 2011        Page 24

developer, filed a motion to intervene,      construction. In this case, Cape Wind
which was granted.                           obtained a lease for the project from the
                                             Department of the Interior, and there
On January 19, 2011, the petitioners         was no evidence that the lease was
filed a joint brief, arguing that the        conditioned upon a no hazard
construction of the Cape Wind “wind          determination from the FAA. However,
farm” with 130 wind turbines, each 440       the lease does require Cape Wind to
feet tall, would be a hazard because it      comply with any mitigation measures;
would cause changes to both instrument       accordingly, the FAA acknowledged that
and visual flight procedures; would          the petitioners may have standing with
increase delays at nearby airports; and      regard to that aspect of the FAA’s
would impair the capability of certain air   determination.
traffic radar facilities. The petitioners
maintained that the FAA had failed to          Second Circuit Challenge to
follow its own order and the governing          Blue Ribbon Panel Study
statute by ignoring the issue of whether
                                                of Enclosed Marine Trash
the wind turbines would interfere with
the navigable airspace, even if the            Transfer Facility Adjacent to
structures were not deemed to be                   LaGuardia Airport
“obstructions.” They also argued that
the FAA’s requirements to mitigate any       On November 12, 2011, Kenneth Paskar
adverse impact on radar capability were      and Friends of LaGuardia Airport filed a
arbitrary and capricious because they        petition for review of a September 2,
were inadequate and were purportedly         2010 letter issued by FAA’s Director of
based on unproven technology.                Airport     Safety     and      Standards
                                             transmitting to the New York City
In its responsive brief, filed on February   Department of Sanitation a September 2,
18, 2011, the FAA explained that, under      2010 Report, “Evaluation of the North
the statute, if there were a determination   Shore Marine Transfer Station and its
that the proposed construction may result    Compatibility with Respect to Bird
in an obstruction in the navigable           Strikes and Safe Air Operations at
airspace or may result in interference       LaGuardia Airport.”       Petitioners in
with the navigable airspace, then the        Paskar, et al. v. DOT (2d Cir. No. 10-
agency must conduct an aeronautical          4612) seek review of the letter and the
study, which it did. The statute does not    Report.
establish any requirement concerning the
issues that such a study must address. In    The Report was prepared by a blue-
any event, the FAA’s aeronautical study      ribbon panel of bird hazard experts who
did consider the impact of the Cape          examined the extent to which the
Wind project on the navigable airspace.      proposed enclosed trash transfer facility,
More significantly, the FAA argued that      the “Marine Transfer Station” (MTS), if
the petitioners lacked standing because,     properly managed, would nonetheless
regardless of the FAA’s hazard/no            constitute a wildlife attractant and would
hazard determination, the FAA has no         therefore be incompatible with safe
authority to either authorize or prevent     airport operations at LaGuardia. In
DOT Litigation News                                      March 31, 2011         Page 25

2006, the City proposed refurbishing           On January 18, 2011, petitioners filed
four closed transfer stations; one of them     their opposition to the motion to dismiss.
is located in Queens, less than one mile       Petitioners     describe    the    FAA’s
from LaGuardia Airport. The project            transmittal letter as the “September 2
garnered special attention after the           Endorsement” and contend that the letter
“miracle on the Hudson River,” during          and the Evaluation Report constitute an
which a bird strike caused a US Airways        order under 49 U.S.C. § 46110.
flight taking off from LaGuardia to make       Petitioners also allege that they have an
an emergency landing in January of last        injury-in-fact and standing. On January
year.          The     Report     included     25, 2011, FAA filed a reply to
recommendations for action by the NYC          petitioner’s opposition.       The reply
Department of Sanitation and concluded         reiterated that the Court was without
that the proposed MTS will be                  jurisdiction since neither the letter nor
compatible with safe air operations so         the Report constitute an “order”
long as it is constructed and operated in      reviewable under 49 U.S.C. § 46110 and
accordance        with    the     Report’s     requested that the petition for review be
recommendations. Construction of the           dismissed.
facility is well underway.
                                               In a related matter, the petitioners filed a
On January 7, 2011, FAA filed a motion         complaint against the Port Authority of
to dismiss asserting that the court lacked     New York and New Jersey, and the City
jurisdiction to consider the petition for      of New York under 14 C.F.R. Part 16,
review because FAA’s letter was not an         the FAA’s Rules of Practice for
agency order. The motion noted that            Federally-Assisted Airport Enforcement
FAA was without authority to prevent           Proceedings.        The complaint was
the transfer facility from being built or to   dismissed without prejudice to refiling
require      particular     modifications,     upon correction of certain stated
regardless of whether FAA agreed with          deficiencies. The deficiencies included
the conclusions of the panel. FAA              improperly naming the City of New
argued that the petitioners could not now      York as a party, failing to establish that
use the device of FAA’s September 2,           the Friends of LaGuardia had standing,
2010 letter to challenge an FAA                and asserting allegations and a request
determination issued several years ago         for relief outside the scope of Part 16.
that the facility did not pose a hazard to
air navigation.       The motion further       FAA Challenged on Categorical
declared that any attempt by the                  Exclusion of Fixed Base
petitioners to challenge that finding were
                                                Operator Development Area
far outside the 60-day statute of
limitations prescribed by 49 U.S.C. §             Proposal at Palm Beach
46110. Finally, the motion contended               International Airport
that, even assuming that the petition for
review challenged an order of the              On December 3, 2010, Donald Trump
Secretary,      petitioners     did     not    and Mar-A-Lago, LLC, an exclusive
demonstrate standing to pursue the             Palm Beach club owned by Mr. Trump,
challenge.                                     filed a petition for review of an FAA
DOT Litigation News                                      March 31, 2011       Page 26

action     concerning     Palm     Beach        petitioner’s      arguments    in    its
International Airport, a commercial             supplemental response were filed on
service airport that has a strong general       February 18, 2011. The court has not
aviation component in Palm Beach,               yet taken any action based upon the
Florida. Petitioners in Trump, et al. v.        initial jurisdictional arguments or the
FAA (11th Cir. No. 10-15543) challenge          petitioners’ request to supplement their
the validity of the FAA’s approval of a         response.
categorical exclusion under NEPA for a
proposed 7.5 acre Fixed Base Operator           Tinicum Township Petitions for
development area at the airport. The              Review of FAA Decision to
categorical     exclusion     specifically
                                                     Approve the Capacity
prohibited any construction until other
administrative actions were complete,              Enhancement Program at
including the final approval of the               Philadelphia International
requested changes to the airport’s                         Airport
Airport Layout Plan (ALP).            The
updated ALP has not yet been approved           On February 23, 2011, a group of
by the FAA. The petition for review             petitioners including the Township of
stated only that the challenge was              Tinicum       in    Delaware     County,
brought under 49 U.S.C. § 46110,                Pennsylvania, sought review of the
without identifying any further basis for       FAA’s December 30, 2010, Record of
the challenge.                                  Decision (ROD) approving a plan to
                                                expand and re-configure Philadelphia
Shortly after the filing of the petition, the   International Airport by adding a third
Court sua sponte sought the parties’            parallel runway, extending an existing
views on a number of jurisdictional             runway, and making various terminal
questions, including whether the order          and airfield improvements, including re-
challenged is final, whether the                locating the air traffic control tower.
petitioners have a substantial interest in      The plan challenged in Township of
the order, whether there are reasonable         Tinicum, et al. v. DOT (3rd Cir. No. 11-
grounds for failing to file the petition        1472) requires the City of Philadelphia
within 60 days of the categorical               to purchase 72 homes and 80 businesses
exclusion’s execution, and whether there        all located in Tinicum Township.
were reasonable grounds for petitioners’
failure to object to the categorical            Warbird Sky Ventures Contests
exclusion before the agency.                    FAA Decision Finding Sumner
                                                 County Regional Airport in
The FAA filed its response to the
Court’s jurisdictional questions on             Compliance with Federal Grant
January 4, 2011.           Subsequently,                 Obligations
petitioners requested leave to file a
supplemental response to the court’s            On September 13, 2010, Gina Moore
jurisdictional questions, which the FAA         filed a petition for review in the U.S.
opposed. The FAA’s opposition to the            Court of Appeals for the Sixth Circuit
request and substantive response to             challenging an FAA decision rejecting
DOT Litigation News                                  March 31, 2011        Page 27

her claim that the Sumner County            applying the airport’s minimum
Regional Airport Authority (SCRAA),         standards against Petitioner; Grant
the sponsor of the Sumner County            Assurance No. 23, Exclusive Rights, in
Regional Airport, Gallatin, Tennessee,      that it unlawfully granted an exclusive
violated its Airport Improvement            right to another operator; and Grant
Program grant assurance agreement           Assurance No. 5, Rights and Powers, in
when it, among other things, denied         that it ceded its rights and powers in its
petitioner the right to operate as a        review of Petitioner’s application to be a
Commercial        Aeronautical    Service   CASP.
Provider (CASP) at the Airport.
Petitioner in Gina Michelle Moore d/b/a     The FAA’s Director of Airport
Warbird SkyVentures, Inc. v FAA (6th        Compliance issued a preliminary
Cir. No. 10-4117) is an individual who is   determination in February 2009, finding
the alter ego of Warbird Sky Ventures,      that SCRAA did not violate Grant
which offers airplane rides and             Assurances No. 22 or 23, but that it did
instruction to the public.                  violate No. 5, Rights and Powers,
                                            because its processes and procedures
SCRAA has entered into grant assurance      lacked transparency and documentation,
agreements with the FAA in order to         making them confusing in nature. In
receive federal grants under the Airport    June 2009, the FAA accepted the
Improvement Program. These grant            Respondent’s corrective action plan and
contracts require SCRAA to abide by         the Respondent was found to be in
grant assurances in accordance with 49      compliance with 49 U.S.C. §47107(a)
U.S.C. § 47107.        SCRAA granted        and Grant Assurance No. 5.
petitioner the authority to operate as a
limited CASP in June, 2001 and              In March 2009, the petitioner appealed
withdrew that authority in June, 2004       the Director’s Determination to the
because the CASP agreement expired. It      Associate Administrator for Airports.
was not renewed because the petitioner      On July 13, 2010, the Acting Associate
lacked the qualifications (among others,    Administrator issued a Final Decision
to occupy leased space on the airport) to   and Order affirming the Director’s
operate as a CASP.                          determination and dismissing the
                                            petitioner’s appeal. Moore then filed a
In November, 2007, petitioner filed a       petition for review of the agency’s final
complaint with the FAA under 14 C.F.R.      order. The case was submitted on the
part 16, FAA’s Rules of Practice for        briefs, without oral argument, and is
Federally Assisted Airport Enforcement      pending for decision by the court.
Proceedings.       In her complaint,
petitioner claimed, among other things,
that the SCRAA violated Grant
Assurance       No.     22,      Unjust
Discrimination, because it unjustly
discriminated against her in favor of
other tenants by not authorizing her to
operate as a CASP and by unjustly
DOT Litigation News                                    March 31, 2011       Page 28

        Federal Highway                       before the court over which it had
                                              jurisdiction. However, the court noted
         Administration                       that the appellants remain free to renew
                                              their motion for preliminary injunction
   Appeal Dismissed to Florida                before the district court.
         Bridge Project
                                                 Summary Affirmance for
On March 2, 2011, the U.S. Court of              FHWA in D.C. FOIA Case
Appeals for the Eleventh Circuit
dismissed as frivolous the appeal of          On December 30, 2010, the U.S. Court
FHWA’s win in Citizens for Smart              of Appeals for the District of Columbia
Growth, et al v. FHWA et al. (11th Cir.       Circuit issued a per curiam order
No. 10-12253). The case was a                 granting the government’s motion for
challenge to FHWA’s decision to               summary affirmance of the district court
approve construction of the Indian Street     decision in Wilson v. DOT, 2010 WL
Bridge Project in Martin County,              5479580 (D.C. Cir. 2010). The lawsuit
Florida. The plaintiffs were landowners       arose from four separate FOIA requests.
and citizens groups seeking to halt           The U.S. District Court for the District
construction of the bridge alleging           of Columbia had granted FHWA’s
violations of NEPA and section 4(f) of        motion for summary judgment, ruling
the Department of Transportation Act.         that, with respect to two FOIA requests,
The U.S. District Court for the Southern      plaintiff failed to exhaust his
District of Florida denied plaintiffs’        administrative remedies, and with
motion for a preliminary injunction and       respect to the two remaining FOIA
granted FHWA’s motion for summary             requests, DOT satisfied its FOIA
judgment.                                     obligations.
On appeal, the Eleventh Circuit issued
                                              Plaintiff had requested copies of
an order to show cause why the district
                                              documents relating to FHWA employee
court’s order should not be summarily
                                              surveys in 2007 and 2008 and all
affirmed in light of appellants’ failure to
                                              harassment, discrimination, and Equal
challenge in their initial brief the denial
                                              Employment       Opportunity     (EEO)
of their motion for preliminary
                                              complaints directed at the FHWA Office
injunction.    After considering the
                                              of the Chief Financial Officer.
parties’ responses to its order to show
                                              Notwithstanding plaintiff’s argument
cause, the court declined to affirm the
                                              that FHWA improperly withheld
district court summarily, but dismissed
                                              responsive documents, the district court
the appellants’ appeal as frivolous. The
                                              found that FHWA’s declarations
court based its dismissal on the
                                              demonstrated that the agency: (1)
appellants’ failure to preserve a
                                              conducted a reasonable search in
challenge to the district court’s ruling on
                                              response to plaintiff’s FOIA requests;
their motion for a preliminary
                                              (2) reasonably interpreted the scope of
injunction. In dismissing the appellants’
                                              plaintiff’s FOIA requests; and (3)
appeal, the court found that the
                                              properly withheld individual names from
appellants had not placed any issues
DOT Litigation News                                  March 31, 2011        Page 29

FHWA’s EEO Counseling Log under             perform various types of work that were
FOIA Exemption 6.                           beyond contract specifications.      A
                                            weeklong bench trial was held in
The D.C. Circuit concluded that the         Portland, Oregon in May 2010, during
district court properly determined that     which the plaintiff abandoned certain
the agency’s interpretation of one of the   smaller claims and reduced its overall
requests was reasonable. The court also     claim amount to $1,875,758.
concluded that the declarations supplied
by the appellee “show beyond material       The court held that the plaintiff was not
doubt that it has conducted a search        entitled to any recovery on its claims
reasonably calculated to uncover all        because they were unsupported by any
relevant documents under FOIA.” The         concrete facts. In presenting a modified
court also ruled that appellant failed to   total cost claim on the excess excavation
offer evidence of bad faith and is not      claim, the plaintiff failed to demonstrate
entitled to discovery. The court further    that it reasonably relied on the
held that appellant forfeited any           solicitation documents in formulating its
argument concerning the agency’s            bid. For this and the other claims, the
redactions of certain records because       plaintiff failed to provide evidence
appellant’s motion in opposition to the     showing its damages were caused by the
motion for summary affirmance did not       government, rather than its own
address that issue. Finally, the court      mistakes, and failed to present any
found that appellant forfeited any          evidence of its actual costs to perform
arguments on reimbursement of court         changed work.           Finally, plaintiff
fees or referral to the Office of Special   presented no evidence that the delays it
Counsel.                                    claimed to have experienced were
                                            excusable. Plaintiff has not filed a
Appellant filed a petition for rehearing    notice of appeal.
or for rehearing en banc, which was
denied on March 15, 2011.                      Environmental Challenge to
                                                Oregon Bridge Dismissed
    FHWA Wins New Mexico
       Contract Case                        On October 27, 2010, the U.S. District
                                            Court for the District of Oregon
On December 9, 2010, the U.S. Court of      dismissed an environmental challenge to
Federal Claims ruled in favor of the        the Oregon City Arch Bridge
government on all contract claims in        Rehabilitation Project in Maimone v.
Delhur Industries, Inc. v. U.S., 95 Fed.    FHWA, et al. (D. Or. No. 10-00441).
Cl. 446 (Ct. Cl. 2010). Plaintiff, the      The complaint challenged the FHWA’s
prime contractor on the 7.68 mile long      decision that the bridge project met
Sacramento River Road reconstruction        NEPA requirements as a Categorical
project in Lincoln National Forest,         Exclusion     not   needing    detailed
outside of Alamogordo, New Mexico,          environment review. Plaintiff, a hair
sought $1,981,669 in damages under the      salon owner, claimed during the public
Contract Disputes Act based on              participation process that the bridge
allegations that it was required to
DOT Litigation News                                  March 31, 2011        Page 30

closure during construction would cause     million in May 2003, along with other
economic harms to her business.             financing from private equity, a
Plaintiff sought an Environmental           consortium of ten senior banks (the
Assessment of the project. The Oregon       Senior Banks), and donated right-of-
City Arch Bridge, a historic property, is   way.
seismically unstable and is one of the
only routes into the downtown area.         SBX filed for bankruptcy primarily due
                                            to substantial construction-related claims
After FHWA filed a motion to dismiss        against SBX by Otay River Constructors
based on standing, given that plaintiff     (ORC), as well as lackluster revenue
had not cited to any environmental          performance.      DOT, acting by and
harms, plaintiff amended her complaint      through      the     Federal     Highway
to add noise and air quality concerns.      Administrator, filed a Proof of Claim
However, there was nothing in the           with the bankruptcy court for the
public participation process on these       outstanding balance of the loan,
issues. At a summary judgment hearing       including accrued interest. Pursuant to
on October 18, 2010, the Court indicated    the TIFIA statute, 23 U.S.C. 603(b)(6),
that plaintiff’s failure to allege          TIFIA’s debt has been on par with the
environmental harm during the NEPA          lien of the Senior Banks since SBX’s
process might make the case invalid         bankruptcy filing. Although SBX is in
pursuant to the Supreme Court's Public      bankruptcy, it is not in payment default
Citizen case requiring notice to the        on the TIFIA loan because the first
agency during the comment period. On        TIFIA interest payment under the
October 25, 2010, the plaintiff filed an    original loan is not due until June 30,
unopposed motion to dismiss the case.       2012.
The Court granted that motion dismiss
with prejudice on October 27, 2010.         In a November 10, 2010 decision in In re
                                            SBX, 2010 WL 4688213 (Bankr. S. D.
                                            Cal. 2010) following an October, 2010
 DOT Maintains Senior Lien in
                                            trial, DOT and the consortium of bank
     SBX Bankruptcy                         lenders for the South Bay Project
                                            prevailed against ORC on the issue of
On March 22, 2010, the South Bay
                                            the priority of a $145.5 million
Expressway Limited Partnership (SBX)
                                            mechanic’s lien claim filed by ORC.
filed for Chapter 11 bankruptcy in the
                                            DOT and the banks have thus
U.S. Bankruptcy Court for the Southern
                                            maintained their senior lien.          A
District of California. SBX holds the
                                            confirmation hearing is scheduled for
toll road concession franchise with the
                                            April 14, 2011, and it is expected that a
California Department of Transportation
                                            reorganized SBX will emerge from
for South Bay Expressway (the South
                                            bankruptcy approximately 14 days
Bay Project), a 9-mile toll road in
                                            thereafter.
eastern San Diego County.         SBX
received a loan from the Transportation
Infrastructure Finance and Innovation
Act (TIFIA) credit program for $140
DOT Litigation News                                    March 31, 2011        Page 31

      FHWA Settles D.C.                       defendants was "not retarding the
    Environmental Challenge                   development of the final agency decision
                                              that will make matters ripe for
On October 27, 2010, the U.S. District        decision." Thus, the court stayed the
Court for the District of Columbia            matter pending a final agency decision,
granted dismissal with prejudice in           rather than dismissing it outright. The
McGuirl v. Peters (D.D.C. No. 04-             court ordered frequent status reports. On
01465) based on a settlement between          February 23, 2010, in its Final Status
FHWA and the plaintiffs.                      Report, defendants informed the court
                                              that the FHWA had approved the DCE
The project challenged in this case           and section 4(f) Evaluation.
involved rehabilitating O and P Streets
from Wisconsin Avenue to 37th Street in       After unsuccessful attempts to settle the
Washington,        D.C.’s     Georgetown      lawsuit, the defendants prepared to file a
National Historic Landmark District.          motion to dismiss. However, on October
FHWA approved a Documented                    25, 2010, plaintiffs initiated discussions
Categorical Exclusion (DCE) for this          on a consent motion to dismiss, resulting
project because there would not be any        in dismissal two days later.
significant effects on the environment.
                                                 Challenge to TIGER Grant
On August 27, 2004, plaintiffs sued              Project in Washington State
FHWA alleging that the agency violated                      Settles
NEPA by preparing a DCE instead of an
EIS. They also alleged that FHWA              On April 13, 2010, Citizens for Sensible
failed to abide by the requirements of        Transportation Planning (CSTP) filed
section 4(f) of the Department of             suit in the U.S. District Court for the
Transportation Act by not satisfactorily      Eastern District of Washington over a
considering the potential dangers to          3.7 mile TIGER grant project, which is
historic properties before approving the      part of a larger multi-phase project on
project.    Finally, they alleged that        U.S. 395 in Spokane, Washington. The
FHWA did not comply with the National         plaintiff in Citizens for Sensible
Historic Preservation Act by not taking       Transportation Planning. v. DOT, et al.
into account the effects the undertaking      (E.D. Wash. No. 10-00108) alleged that
would have on properties included in or       the defendants violated NEPA in
eligible for inclusion in the National        approving a $35 million grant under the
Register of Historic Places.                  TIGER discretionary grant program for
                                              the US 395 Project because FHWA
Early in the litigation, federal defendants   should have prepared a supplemental
moved to dismiss the complaint as there       final environmental impact statement
was no final agency decision on the           (SFEIS) to analyze the impacts of
issues raised and the matter was not ripe     Mobile Source Air Toxics (MSATs) on
for judicial review. The court denied the     the residential community adjacent to
motion, observing that the pendency of        the North Spokane Corridor Project.
this litigation against the federal
DOT Litigation News                                    March 31, 2011         Page 32

When the environmental documents             Court dismissed the case on November
were first prepared for this project in      23, 2010, based on the settlement.
1997 and 2000, MSATs were not an
environmental issue that FHWA                Prior to settlement, on June 18, 2010, the
analyzed. However, in 2007 and 2009,         U.S. District Court for the District of
FHWA issued guidance on how to               Arizona granted partial summary
analyze MSATs. When the Washington           judgment for FHWA.              The court
Division conducted a checklist re-           dismissed one count under the
evaluation of the older NEPA documents       discretionary function exemption of the
in 2009, it failed to examine the MSAT       Federal Tort Claims Act, but found a
impacts or application, believing the date   genuine issue of material fact as to
of the original NEPA document                whether compliance with NCHRP
controlled what should be evaluated.         Report 350 regarding median barrier
                                             design was mandatory or advisory. In
As FHWA concluded that the TIGER             the earlier ruling, the court found that the
Grant based re-evaluation should have        discretionary function exemption applied
included a review of MSAT impacts, in        to Count 3 -- FHWA authorization of
June 2010, FHWA worked with the              funds for the SR51 Cable Median
Spokane        Metropolitan     Planning     Barrier Project -- because FHWA had
Organization and the Washington              discretion in determining whether to
FHWA Division office to prepare an           approve federal funding for the project.
MSAT analysis for the proposed project.
Based on this study, FHWA re-evaluated           Briefing in Fifth Circuit
the prior NEPA environmental reviews,           Challenge to Texas Parkway
finding that there was no new significant
impact that would require an SFEIS.          On July 16, 2010, plaintiffs appealed the
                                             May 19 decision of the U.S. District
On August 13, 2010, the parties filed a      Court for the Southern District of Texas
stipulation of settlement, and on October    in Sierra Club v. FHWA, 2010 WL
27, 2010, the court dismissed the case       889964 (S.D. Tex. 2010), to the U.S.
with prejudice and ordered that FHWA         Court of Appeals for the Fifth Circuit
pay plaintiff’s attorneys fees and costs     (5th Cir. No. 10-20502). The district
totaling $3,395.                             court upheld FHWA’s issuance of a
                                             Record of Decision approving Segment
      FHWA Settles Arizona                   G of the Grand Parkway project in
        Negligence Case                      Houston, Texas. The case involves the
                                             proposed     Grand    Parkway       (State
On October 19, 2010, the FHWA settled        Highway 99)      project,     which     is
Melvin v. United States (D. Ariz. No.        envisioned as a 180-mile-long loop
08-1666), in which plaintiff had alleged     highway around Houston. Segment E is
Federal Tort Claims Act negligence in        a 13.9-mile segment located between I-
the FHWA approval of guardrail design        10 and US 290 about 25 miles northwest
on Arizona SR51, allegedly causing an        of downtown Houston.
accident that had injured plaintiff. The
DOT Litigation News                                  March 31, 2011       Page 33

On November 19, 2007, FHWA                  In its brief filed January 12, 2011,
approved a detailed FEIS for Segment E,     FHWA argued that FHWA and TxDOT
which was based on 15 years of public       took the required “hard look” at the
meetings, studies and analysis. FHWA        environmental consequences of the
signed a Record of Decision (“ROD”) on      proposed Grand Parkway Segment E.
June 24, 2008, selecting one of the Build   The FEIS and ROD considered and
alternative routes.                         explained the project’s purpose and need
                                            and the alternatives considered with
The district court denied Sierra Club’s     sufficient detail and clarity to permit a
motion for summary judgment and             reasoned choice among different courses
granted the federal defendants’ and state   of action. Further, FHWA asserts that
defendants’ motions for summary             none of Sierra Club’s contentions
judgment. The court concluded that, as      seriously calls into question the
required by NEPA, the FHWA took “a          FHWA’s compliance with the applicable
hard look at the environmental              guidance or the methodology, data, and
consequences of the alternatives” and       conclusions of the FEIS.
provided “an explanation of the
alternatives sufficient to permit a          New Environmental Challenge
reasoned choice among different courses        to Virginia Interchange
of action.”
                                            On February 22, 2011, a citizen’s group
On appeal, the Sierra Club has asserted     filed a new lawsuit, Coalition to
in briefs filed on November 8, 2010 and     Preserve McIntire Park v. Mendez (W.D.
February 11, 2011, that: (1) the Purpose    Va. No. 11-00015), challenging a
and Need statement was a post hoc           proposed interchange to improve the
justification for the construction of       intersection of the Route 250 Bypass and
Segment E and that the FEIS data            McIntire Road in Charlottesville,
reveals that the primary reason for the     Virginia.     Plaintiffs allege that the
construction of Segment E is to induce      process by which the Defendants
growth; (2) FHWA relied on inaccurate       prepared       and       approved    the
data and outdated data in analyzing         Environmental Assessment’s Finding of
impacts to floodplains and thus failed to   No Significant Impact for the project
comply with both NEPA and Executive         violated NEPA and section 4(f) of the
Order 11998; (3) the wetlands analysis      Department of Transportation Act.
did     not     comply    with     NEPA     Specifically, they allege that:       (1)
requirements; and, (4) the district court   FHWA was required by federal law to
erred when it denied Sierra Club’s          select an alternative alignment that
motion for leave to file an amended         would have had no or lesser impact on
complaint. Sierra Club did not challenge    the Park and the nearby historic
the district court’s conclusions that the   resources; (2) the scope of its
FEIS’s assessment of air and noise          environmental review was far too
impacts was adequate.        Nor did it     narrow; and (3) federal law required the
challenge the district court’s conclusion   FHWA to prepare an Environmental
that the FEIS’s assessment of cumulative    Impact Statement for the project.
impacts was adequate.
DOT Litigation News                                    March 31, 2011         Page 34

Plaintiffs seek a declaration that FHWA      surrounding area. Following additional
has violated NEPA and Section 4(f) and       studies and more coordination with the
an injunction preventing the use of          Plaintiffs and the public, the impacts
federal funds on the project.                were re-evaluated in a new EA, and the
                                             FONSI was reissued. Plaintiffs are not
 Environmental Challenge Filed               satisfied with the bridge design and want
 against South Carolina Bridge               the entire crossing to be spanned with
                                             one long bridge, which would double the
On September 13, 2010, the Friends of        project costs.
Congaree Swamp challenged the
FHWA’s         decision    to    approve     On October 7, 2010, the Plaintiffs filed a
construction of bridges and causeways        Motion for Preliminary Injunction,
over the Congaree Swamp on State             which was argued on December 15,
Highway 601 in South Carolina.               2010. On December 17, 2010, the
Plaintiffs in Friends of Congaree Swamp      parties and the court agreed to a
v. FHWA (D. S.C. No. 10-02394)               stipulated construction and expedited
challenge whether FHWA and the South         briefing schedule.
Carolina Department of Transportation
(SCDOT) complied with 49 U.S.C. §            FHWA Sued over Ohio Railroad
303, section 4(f) of the Department of            Crossing Project
Transportation Act, and NEPA in
planning the construction of bridges and     On October 8, 2010, a proposed grade
causeways on State Highway 601 when          crossing improvement project in
FHWA issued a Revised Environmental          Macedonia, Ohio was challenged in the
Assessment (EA) Finding of No                U.S. District Court for the Northern
Significant Impact (FONSI).                  District of Ohio in Schneider v. DOT, et
                                             al. (N.D. Oh. No. 10-02297). The
Plaintiffs, consisting of several South      Highland Road Grade Separation Project
Carolina environmental groups, allege        proposes to reconstruct Highland Road
4(f) and NEPA violations against both        at an elevated profile to create a separate
SCDOT and FHWA in connection with            grade crossing on the Norfolk Southern
the 601 bridge construction project. The     Railroad.     Plaintiff alleges that the
original bridge was built in the 1940s       process by which defendants prepared
and is in serious need of repair. The        and approved the Categorical Exclusion
bridge replacement project is within the     for the project violated NEPA, section
Congaree River floodplain and near and       4(f) of the Department of Transportation
adjacent to the authorized boundary of       Act, and the Federal Aid Highway Act
the Congaree National Park. In 2006,         and seeks a declaratory judgment to that
the Plaintiffs sued the same Defendants      effect. Plaintiff also seeks preliminary
over the initial EA and FONSI.               and     permanent      injunctive     relief
Plaintiffs prevailed in that initial suit.   prohibiting the FHWA Ohio Division
The Court found that the initial EA was      Administrator from authorizing the
conclusory and did not take the required     release of funds to the State of Ohio in
hard look at the project’s impacts on the    connection with the project until such
DOT Litigation News                                    March 31, 2011        Page 35

time that the defendants assess the social   DOT, et al. (7th Cir. No. 10-2340), a
and economic effects of the project by       petition    for    review     challenging
completing an updated environmental          FMCSA’s Final Rule on “Electronic On-
review.                                      Board Recorders for Hours-of-Service
                                             Compliance” (Final Rule). The Final
   Environmental Challenge to                Rule, published on April 5, 2010, at 75
       Kentucky Highway                      Fed. Reg. 17,208, amends the Federal
                                             Motor Carrier Safety Regulations
On October 5, 2010, an environmental         (FMCSRs)        to    incorporate     new
group challenged FHWA’s decision to          performance standards for electronic on-
approve construction of the new I-65         board recorders (EOBRs) installed in
interchange and highway to connect US        commercial          motor         vehicles
31W, US 68 and I-65, known as the US         manufactured on or after June 4, 2012.
68 Connector Project, in Karst               Additionally, the Final Rule mandates
Environmental          Education       and   that motor carriers demonstrating serious
Protection, Inc. v. FHWA (W.D. Ky.           noncompliance with the hours of service
No. 10-00154). Plaintiff alleges that        rules will be subject to mandatory
FHWA violated 42 U.S.C. § 4332 and           installation of EOBRs under the new
NEPA in planning the construction of         performance standards. FMCSA plans
the highway and interchange when             to begin issuing remedial directives
issuing an Environmental Impact              mandating installation of EOBRs in June
Statement (EIS) and Record of Decision       of 2012.
(ROD). Specifically, plaintiff alleges
that defendants violated NEPA by             In support of its petition for review, the
failing to utilize updated information and   Owner-Operator Independent Drivers
data, to adequately consider alternatives,   Association (OOIDA) argues that: (1)
and to take a “hard look” at direct,         the Final Rule fails to heed the statutory
indirect, and cumulative impacts.            mandate to ensure that EOBRs will not
Plaintiff has asked the court to set aside   be used to harass vehicle operators; (2)
the EIS and the ROD.                         the benefits of EOBRs are illusory and
                                             do not support FMCSA’s cost benefit
                                             analysis; and (3) mandating EOBRs
                                             violates drivers’ Fourth Amendment
    Federal Motor Carrier                    rights.
    Safety Administration
                                             In response, FMCSA argues that it
   Oral Argument Held in                     ensured that EOBRs will not be used to
Challenge to FMCSA Electronic                harass vehicle operators. In particular,
                                             the agency carefully considered privacy
  On-Board Recorder Rule
                                             issues associated with EOBRs. FMCSA
                                             rejected proposals that would have
On February 7, 2011, the U.S. Court of
                                             resulted in more intrusive monitoring of
Appeals for the Seventh Circuit heard
                                             drivers’ activities. Second, the agency
oral argument in Owner-Operator
                                             argues that it carefully analyzed the costs
Independent Drivers Ass’n, Inc., et al. v.
                                             and benefits of EOBRs. In particular,
DOT Litigation News                                   March 31, 2011        Page 36

automatic tracking of driving time by        The CSA Operational Model is a major
EOBRs will significantly improve hours-      new FMCSA safety initiative to increase
of-service compliance by ensuring            the efficiency and effectiveness of
accurate hours-of-service recordkeeping.     FMCSA’s compliance and enforcement
Third, FMCSA argues that the Fourth          program.       CSA has three major
Amendment does not apply to EOBRs,           components:         (1) a new, more
which track commercial motor vehicles        comprehensive Safety Measurement
being operated on public roads.              System (SMS) for identifying high risk
Moreover, even if the Fourth                 motor carriers; (2) a broader array of
Amendment applies to EOBR use, such          compliance interventions to promptly
a warrantless search would be                address unsafe behavior; and (3) a new
constitutional under the established         safety        fitness       determination
exception for highly regulated industries.   methodology that will be implemented
Finally, FMCSA argues that OOIDA’s           through      notice     and     comment
case should be dismissed on ripeness         rulemaking.       CSA’s comprehensive
and/or standing grounds. FMCSA action        SMS system and its broader array of
under the Final Rule will not occur until    compliance interventions will allow the
at least June 2012. Accordingly, the         investigators to touch a far greater
court should not review the rule at this     number of carriers in a more targeted
time as the rule has caused no potential     and efficient manner. Petitioners argued
harm to any carriers.                        that      the       development      and
                                             implementation of the enforcement
    Parties Settle Litigation                model, including SMS, should have been
   Challenging FMCSA’s CSA                   subject to notice and comment
                                             rulemaking.
      Enforcement Model
                                             On March 4, 2011, the parties executed a
On November 29, 2010, the National
                                             settlement     agreement     in     which
Association      of   Small     Trucking
                                             petitioners’ agreed to dismiss the suit
Companies, the Expedite Alliance of
                                             and FMCSA agreed to modify the
North America, and Air & Expedited
                                             disclaimer language on the SMS
Motor Carriers Association sought
                                             website, replacing the “Alert” status with
review of FMCSA’s new enforcement
                                             the symbol             and revising the
model,         Compliance,        Safety,
                                             footnote definition of the     symbol on
Accountability (CSA) in National Ass’n
                                             the Legend portion of the SMS website.
of Small Trucking Companies, et al. v.
                                             FMCSA agreed to make these changes
FMCSA (D.C. Cir. No. 10-1402).
                                             to the website by March 25, 2011. On
Petitioners also sought an emergency
                                             March 9, the Petitioners filed a
stay, urging the court to halt FMCSA’s
                                             Stipulation of Dismissal.
implementation of CSA. On December
10, the U.S. Court of Appeals for the
District of Columbia Circuit denied
petitioners’ stay motion, which enabled
FMCSA to begin implementing CSA on
December 12, 2010.
DOT Litigation News                                   March 31, 2011        Page 37

Affirmative Litigation Enforcing            In LaHood v. Garcia and East Valley
FMCSA Out-of-Service Orders                 Travel & Tours (D. Ariz. No. 10-02315),
                                            DOJ sought an injunction against Mario
In three separate cases, the Department     A. Garcia and East Valley Travel &
of Justice (DOJ) initiated affirmative      Tours requiring that it cease all
litigation on behalf of DOT requesting      commercial motor carrier operations.
that the Court enjoin defendants from       FMCSA had taken enforcement action
operating unsafe commercial motor           against Mr. Garcia in July 2010 when he
vehicles in interstate commerce.            attempted to operate buses belonging to
                                            a passenger carrier that had been placed
In Secretary of Transportation v. James     out-of-service based on an unsatisfactory
D. Benge dba JDB Transport, et al. (S.D.    safety rating.     FMCSA had denied
Ohio No. 10-00802), DOJ sought a            Garcia’s application for operating
temporary restraining order (TRO)           authority for East Valley Travel &
against defendant James Benge and two       Tours, the entity intended to supplant the
of his drivers. Benge had continued to      unsatisfactory-rated carrier. Garcia and
operate his tractor and trailer despite     East Valley Travel continued to operate
receiving four vehicle out-of-service       two      commercial      motor    vehicles
(OOS) orders over the course of several     transporting passengers between Mexico
months in 2010. The OOS orders were         and the United State without the required
based on severe and extensive brake         operating authority. On December 9,
system defects, cracked frames and axle     2010, the Court issued an order
mounts, and non-functioning brake and       approving a consent decree executed by
turn signal assemblies. On August 19,       the parties. Under the consent decree,
2010, FMCSA issued an Imminent              Mario Garcia and East Valley Travel &
Hazard OOS order directing JDB              Tours are permanently enjoined from
Transport to cease operating the vehicles   conducting motor carrier operations in
until all necessary repairs were            interstate or foreign commerce without
performed. Mr. Benge continued to           valid and active FMCSA operating
operate the vehicles. On November 19,       authority and from contracting passenger
2010, U.S. District Court Judge Michael     transportation      with     any      other
R. Barrett issued a TRO, which the court    unauthorized motor carriers. Garcia is
subsequently converted to a preliminary     also     permanently     enjoined from
injunction on December 7, 2010. At a        submitting new applications for motor
status hearing held on February 7, 2011,    carrier operating authority in any name
the Court informed Mr. Benge that he        or for any entity unless the application is
must submit all necessary paperwork         accurate and discloses the applicant’s
documenting the required repairs before     affiliations with other motor carrier
May 1, 2011, or the Court will entertain    operations.
FMCSA’s request for a permanent
injunction. A further status hearing is     In LaHood v. RLT Tours, LLC et al.
scheduled for June 22, 2011.                (M.D. Pa. No. 11-0073), DOJ on behalf
                                            of DOT sought injunctive relief against
                                            an interstate motor carrier of passengers
                                            that continued to operate after being
DOT Litigation News                                  March 31, 2011        Page 38

ordered to cease operations. RLT Tours      result  in    additional     fines     or
transports daily commuters between          imprisonment for defendants.
Tobyhanna, PA (Pocono Mountains) and
New York, NY. A September 2010               Moving Company Settles Civil
FMCSA compliance review rated RLT                  Penalty Appeal
Tours’      safety    management       as
unsatisfactory. RLT Tours failed to take    Air 1 Moving and Storage, Inc. (Air 1)
necessary steps to improve its safety       filed a petition for review in the U.S.
rating and was consequently ordered to      Court of Appeals for the Ninth Circuit
cease operations, effective November 5,     seeking review of an FMCSA final order
2010. The order to cease also revoked       that imposed civil penalties against Air 1
the motor carrier’s operating authority     totaling $27,030 and a subsequent final
registration. RLT Tours continued to        order denying Air 1’s motion for
transport passengers in interstate          reconsideration. The petitioner in Air 1
commerce without operating authority        Moving & Storage, Inc. v. DOT, et al.
and in defiance of the Order to Cease.      (9th Cir. No. 10-72797) also sought a
                                            stay of FMCSA’s enforcement of the
The district court action for injunctive    final order. The civil penalties were
relief was initiated on January 11, 2011,   based on Air 1 engaging in interstate
and was resolved by a court order           transportation of household goods
stipulated by the parties on February 16,   without proper operating authority and
2011. The court ordered RLT Tours and       its use of a driver who did not possess a
its owners to cease operations of           valid commercial driver license.
commuter passenger bus service
between Tobyhanna and New York              On December 3, 2010, FMCSA entered
City. The order further provided that       into a settlement agreement with Air 1
RLT Tours and Lucky and Lady Travel,        resolving its petition for review. Under
LLC, another bus company incorporated       the settlement, Air 1 is required to pay
by defendants, will be dissolved and        the full $27,030 penalty, but is permitted
that RLT and Lucky and Lady must file       to pay the penalty in monthly installment
an “Out     of     Business”    MCS-150     payments provided it makes each of its
with FMCSA. The order enjoined the          payments as required. On December 13,
defendant owners from contracting or        2010, the court dismissed the petition for
arranging transportation of passengers      review.
with other unauthorized bus companies.
Defendant-owners further agreed to
personally pay a civil penalty based on
their role in providing bus services
without proper operating authority. RLT
Tours, to the extent allowable by law,
remains liable for a civil penalty of
approximately $30,000 pursuant to final
agency orders of FMCSA. Failure to
comply with the injunctive order may
DOT Litigation News                                    March 31, 2011       Page 39

        Federal Railroad                      tenants, rather than for its own purposes
                                              or    industrial     processes,    which
         Administration                       characterizes operation on the general
                                              system.
     Oral Argument Held in
       Challenge to FRA’s                       FRA Reaches Agreement in
   Jurisdiction over the Port of              Litigation Regarding Its Positive
       Shreveport-Bossier                         Train Control Final Rule
On March 1, 2011, the U.S. Court of           On March 2, 2011, FRA and the
Appeals for the Fifth Circuit heard oral      Association of American Railroads
argument in Port of Shreveport-Bossier        (AAR) reached an agreement in the
v. FRA (5th Cir. No. 10-60324), a             matter of Association of American
challenge to FRA’s determination that         Railroads v. FRA, et al. (D.C. Cir. No.
the Port of Shreveport-Bossier (the Port)     10-1198) and jointly petitioned the U.S.
is subject to FRA’s safety jurisdiction.      Court of Appeals for the District of
The Port’s petition for review contests a     Columbia Circuit to hold the case in
February 22, 2010, determination in           abeyance while FRA issues new Notices
which FRA found that the Port is a            of Proposed Rulemaking (NPRM) that
railroad carrier within the meaning of the    will address FRA’s final rule on positive
railroad safety laws and regulations and      train control (PTC), which is the subject
is therefore subject to FRA’s                 of the litigation. On March 3, 2011, the
jurisdiction.                                 D.C. Circuit granted the joint petition,
                                              directed that the case be held in
Although FRA’s statutory jurisdiction         abeyance, removed the case from the
extends to all railroad carriers, FRA has     March 7, 2011, oral argument calendar,
chosen as a matter of policy not to           and directed the parties to file status
impose its regulations on certain             reports at 60-day intervals, beginning 60
categories of operations, such as “plant      days from the date of the court’s order.
railroads.”     “Plant railroads” are
railroads whose entire operations are         AAR sought review of two specific
confined to an industrial installation that   aspects of FRA’s PTC final rule. First,
is not part of the general railroad system    AAR maintained that FRA acted in an
of transportation (general system).           arbitrary and capricious manner by
                                              adopting 2008 (the year that the
The Port asserts that its rail operation is   implementing statute was passed) as a
a plant railroad and that FRA’s               baseline for determining the routes on
jurisdiction determination is contrary to     which PTC must be installed. Second,
FRA’s regulations and an improper             AAR argued that FRA acted in an
attempt to expand its jurisdiction outside    arbitrary and capricious manner by
of the rulemaking process. FRA argues         mandating that a PTC screen be visible
that the Port provides railroad               to each member of the train crew.
transportation because it switches rail
cars in service for fourteen different
DOT Litigation News                                    March 31, 2011        Page 40

In its opposition brief, FRA argued that       D.C. Circuit Dismisses Petition
it has statutory authority to require PTC        for Review of Metrics and
installation beyond the basic system
                                                   Standards for Intercity
required by the statute. Moreover, FRA
asserted that the year 2008 is a                   Passenger Rail Service
reasonable      starting    baseline    in
determining which additional lines            On November 24, 2010, the U.S. Court
should be equipped with PTC. While            of Appeals for the District of Columbia
traffic changes will occur in subsequent      Circuit dismissed Association of
years, the PTC final rule provides that       American Railroads v. FRA, et al. (D.C.
2008 lines need not be PTC-equipped if        Cir. No. 10-1154) on the ground that it
they do not meet the requirements of two      lacked jurisdiction over the case. The
additional tests (the alternative route       Association of American Railroads
analysis and the residual risk analysis).     (AAR) had filed a petition for review in
FRA also argued that the joint-visibility     the D.C. Circuit on July 2, 2010,
requirement is a performance standard,        challenging Metrics and Standards for
with a number of possible technical           measuring the performance and service
solutions (e.g., a single large screen, a     quality of intercity passenger train
swivel screen, a heads up display, a          operations developed by FRA jointly
personal device, or two screens). FRA         with Amtrak pursuant to Section 207 of
maintained that the PTC Final Rule does       the Passenger Rail Investment and
not mandate a second display.                 Improvement Act of 2008 (PRIIA). In
                                              its petition for review, AAR raised the
The agreement entered into between            following issues: (1) whether section
FRA and AAR provides that FRA will            207 of PRIIA is unconstitutional; and (2)
publish an NPRM that will address the         whether the Metrics and Standards are a
2008 baseline provision that is at issue in   product of arbitrary and capricious
the appeal. FRA will also issue a             decision-making in violation of the
separate NPRM that addresses other            Administrative Procedure Act because
aspects of the PTC final rule not raised      they are not the product of reasoned
in the litigation. The agreement further      agency decision-making and they are not
provides that upon the conclusion of the      supported by substantial evidence in the
2008 baseline rulemaking, the parties         rulemaking record.
will determine whether to file a joint
motion to dismiss the petition for review     The government filed a motion to
with prejudice or to advise the Court that    dismiss the petition for review for lack
they are unable to resolve all of the         of jurisdiction on August 23, 2010,
issues in the petition for review.            arguing that the case should have been
                                              filed in a federal district court. On
                                              September 3, AAR filed a response to
                                              the motion to dismiss in which it did not
                                              object to the dismissal of the case
                                              without prejudice, should the court
                                              determine that it is without jurisdiction.
                                              In its decision, the D.C. Circuit stated
DOT Litigation News                                   March 31, 2011      Page 41

that it was granting the government’s       or supplemental environmental impact
motion because AAR had not addressed        statement was required, and since that
or refuted the government’s arguments       time the case has been fully briefed.
for dismissal.                               
                                                    Owner and Residents of
                                                Manhattan Apartment Building
         Federal Transit                        File Two Lawsuits over Second
         Administration                                Avenue Subway

Hearing on Challenge to Second              On November 30, 2010, the owner and
                                            residents of an Upper East Side
   Avenue Subway Project                    apartment building named “Yorkshire
      Ancillary Facility                    Towers” filed a lawsuit related to a
                                            September 30, 2010, request under the
On March 24, 2011, the U.S. District        Freedom of Information Act (FOIA) for
Court for the Southern District of New      documents related to the environmental
York heard cross-motions for summary        review of the Second Avenue Subway
judgment in one of the New York City        project. Yorkshire Towers Co. LP and
Second Avenue Subway cases. FTA is          Yorkshire Towers Tenants Ass’n v.
defending a lawsuit challenging the         FTA, et al. (S.D.N.Y. No. 10-8973).
design of an ancillary facility on the      The suit was also filed against the
Second Avenue Subway project, an            Metropolitan Transportation Authority
undertaking by the New York                 (MTA) and the MTA’s subsidiary, the
Metropolitan Transportation Authority       Capital       Construction     Company
(MTA) and the New York City Transit         (MTACCC), pursuant to the New York
Authority (NYCTA) to construct an           Freedom of Information Law. The
approximately 8.5 mile two-track rail       complaint seeks to compel the release of
line extending the length of Manhattan’s    “specified records and materials”
East Side Corridor. The case, 233 East      underlying     the    December      2009
69th Street Owners Corp. v. DOT, et al.     supplemental environmental assessment
(S.D.N.Y. No. 10-00491), concerns           for the first minimum operable segment
allegations that FTA was required to do     of the Second Avenue Subway, now
a supplemental environmental impact         well along in construction. FTA
statement on the design of the ancillary    provided its response to the FOIA
facility, which is planned to be located    request in early December 2010 and
next to plaintiff’s residential building.   filed an answer to the complaint in early
The case was initially placed on a          February 2011.
suspense calendar pending FTA’s
determination      as     to     whether    On February 16, 2011, the same owner
supplemental review under NEPA was          and residents of Yorkshire Towers filed
required. Based on technical analysis       suit against FTA in Yorkshire Towers
developed by FTA and MTA, FTA               Co. LP and Yorkshire Towers Tenants
determined in September 2010 that no        Ass’n v. DOT, et al. (S.D.N.Y. No. 11-
supplemental environmental assessment       01058). The complaint alleges that
DOT Litigation News                                     March 31, 2011        Page 42

FTA’s supplemental environmental              allegations     concerned       cumulative
assessment concerning the location of an      impacts of prior projects (the building of
entrance to the East 86th Street station      I-94 and urban gentrification in the
did not adequately consider the               1970’s), displacement of existing
environmental effects of the station          businesses and residents, and requisite
entrances or of alternative station           scope. The requisite scope issue related
entrances. The complaint also alleges         to the omission of the infill stations from
that the project sponsor, the MTA, failed     the ROD and their addition in a
to comply with the New York State             subsequent Environmental Assessment
Environmental Quality Review Act              (EA), essentially an allegation of
concerning the station design. Finally,       impermissible segmentation. On all
the complaint seeks injunctive relief that    these issues, the court ruled in DOT’s
would prevent MTA from expending              favor. With regard to the business
public funds on the station entrance          revenue issue, the court distinguished the
pursuant to New York General                  cases the government relied on for the
Municipal Law Section 51.                     proposition that the FEIS did not need to
                                              evaluate loss of business revenue during
   Court Issues Decision in                   construction since it is solely economic
    Environmental Justice                     harm. The court found that the plaintiffs
                                              are “within the ‘zone of interests’” and
 Challenge to Minnesota Light-
                                              that the CCLRT will produce
         Rail Project                         “substantial environmental impacts in
                                              the Corridor where the plaintiffs live.”
On January 27, 2011, the U.S. District        The court found that the record supports
Court for the District of Minnesota ruled     the conclusion that “these environmental
in The St. Paul Branch of the NAACP v.        impacts will be connected to economic
DOT, et al. (D. Minn. No. 10-147),            impacts,” resulting in lost business
denying plaintiff’s request to enjoin         revenue, which is “directly related to the
construction of the Central Corridor          environmental impacts (i.e., physical
Light Rail Transit project in Minneapolis     disruption of the environment).” The
or its Record of Decision (ROD), stating      court wants these impacts to be
that there are “significant public benefits   evaluated and appropriate mitigation
to the CCLRT [Central Corridor Light          measures adopted, and found the FEIS
Rail Transit] project.” However, the          deficient until the impacts are
court did find the Final Environmental        addressed.
Impact Statement (FEIS) “inadequate
insofar as it fails to address the loss of    In response to the court’s decision, FTA
business revenues as an adverse impact        is undertaking a supplemental EA on the
of the construction of the CCLRT.”            narrow issue of potential business
FTA was ordered to supplement its             revenue losses during construction. The
analysis of business interruption             draft EA was issued on March 1, 2011,
impacts. With regard to all the other         starting a thirty day public comment
allegations in the complaint related to       period. Additionally, on February 25,
the inadequacy of the FEIS, the court         2011, the plaintiffs filed for attorney’s
found in the government’s favor. Those        fees.
DOT Litigation News                                     March 31, 2011        Page 43

  Maritime Administration                     certainly affected the litigation, there
                                              was no basis to suggest it was a
                                              transitory litigation posture. The court
Ninth Circuit Affirms Dismissal
                                              presumed that the government was
 of Cargo Preference Act Suit                 acting in good faith.        The specific
                                              question that gave rise to the suit — the
On November 5, 2010, the United States        need for consultation with MarAd —
Court of Appeals for the Ninth Circuit        was resolved in ACT's favor. Because
affirmed the decision of the district court   the suit no longer presented a concrete
dismissing plaintiff’s claims in America      case or controversy, the Ninth Circuit
Cargo Transport, Inc. v. United States        affirmed the district court's dismissal of
(9th Cir. Nos. 08-35010 & 08-3527).           ACT's claims for declaratory and
America Cargo Transport (ACT), a U.S.-        injunctive relief as moot.
flag carrier, had brought suit in the U.S.
District Court for the Western District of    As to ACT’s claims for money damages,
Washington when the Agency for                the court noted that as a general rule, the
International      Development       (AID)    United States, as sovereign, is immune
rejected ACT’s bid to carry a full            from suit save as it consents to be sued,
shipload lot of Food for Peace program        and the terms of its consent to be sued in
cargo without MarAd’s concurrence. In         any court define that court's jurisdiction
the district court case, the Department of    to entertain the suit. Whether the United
Justice belatedly accepted MarAd’s view       States has waived sovereign immunity in
of the law, which coincided with              connection with shipping under the Food
plaintiff’s arguments, and agreed that        for Peace program was a question of first
MarAd’s concurrence was necessary.            impression for the Ninth Circuit. The
On the basis of the Justice Department’s      text of the Suits in Admiralty Act (SAA)
position that only MarAd can make a           makes clear that the waiver of sovereign
determination that a U.S.-flag vessel is      immunity applies only where a private
not available for a full shipload lot of      party would be liable under admiralty
cargo, the district court dismissed ACT’s     law for the same conduct.           ACT's
suit as moot, and ACT appealed.               alleged injury was that AID wrongly
                                              rejected ACT's bid in violation of the
First addressing ACT’s request for            federal laws governing cargo preference
declarative and injunctive relief, the        and food safety. But those laws—the
Ninth Circuit held that where there is no     Cargo Preference Act (CPA) and the
reasonable expectation that the alleged       Food Security Act (FSA) — regulate
violation will recur, and where interim       only the government's conduct. Because
relief or events have completely and          a private party could not be liable under
irrevocably eradicated the effects of the     either the CPA or FSA, the statutory
alleged violation, the case is moot.          waiver of the SAA was inapplicable
Because the shipment at issue had             here. Because a private party would not
already been completed, ACT's claim for       have been subject to the CPA or FSA or
injunctive relief was moot as well.           their implementing regulations — and
Although the fact that the government         because ACT would therefore have no
changed its policy and agreed with ACT        claim against a private party in the
DOT Litigation News                                     March 31, 2011       Page 44

government's shoes — the government            maritime liens that precede its first
did not waive sovereign immunity under         preferred mortgage. Shipbuilder Austal
the SAA. Accordingly, the Ninth Circuit        USA, LLC, claimed about $30 million
affirmed the district court's dismissal of     on the basis of its second preferred
the SAA claim for damages.                     mortgage for construction period
                                               financing, arguing that its mortgage
As to attorney fees, to be a prevailing        should be entitled to recovery pari passu
party under the Equal Access to Justice        with MarAd’s first preferred mortgage.
Act (EAJA), a litigant must achieve a          Austal’s claim was dismissed with
material alteration of the legal               prejudice.   Of lesser significance,
relationship of the parties, and the           Hornblower Marine Services, Inc.’s
alteration must be judicially sanctioned.      claim for payment of wages, which gives
The Ninth Circuit agreed with the              rise to a maritime lien that has priority
district court that ACT did not qualify as     over a preferred mortgage, was
a “prevailing party” under EAJA                approved. The court found that,
because its regulatory victory was the         although Hornblower was not the vessel
result of the government's voluntary           owner, it nevertheless paid the wages
behavior, not judicial action.                 when the vessel owner failed to do so
                                               and was therefore entitled to a total of
     Court Rules in Hawaii                     about $42,000 from the proceeds of
  Superferry Bankruptcy Case                   sale.

On February 28, 2011, the U.S. District
Court for the Eastern District of Virginia        Pipeline and Hazardous
issued decisions in United States, et al.            Materials Safety
v. ALAKAI (O.N. 1182234) (E.D. Va.
No. 10-232) and United States, et al. v.              Administration
HUAKAI (O.N.1215902), 2011 WL
7819274 (E.D. Va. 2011), on claims                Hazmat Packaging Supplier
against the U.S. Marshal’s sale proceeds          Challenges Civil Penalty in
of the two former Hawaii Superferries,                 Eleventh Circuit
ALAKAI        and     HUAKAI.         Most
significantly, the court ruled that a large    On January 14, 2011, Air Sea
second      preferred      mortgage       is   Containers, Inc. (ASCI) sought review in
subordinate to MarAd’s first preferred         the U.S. Court of Appeals for the
mortgage. Having foreclosed on the             Eleventh Circuit of a final action of the
vessels, which defaulted on Government         PHMSA Administrator that imposed
guaranteed loans for $140 million,             civil penalties against ASCI for
MarAd purchased both vessels by credit         violations of the Hazardous Materials
bid at a September 2010 Marshal’s sale         Regulations (HMR). The case, Air Sea
for $25 million each. Although no cash         Containers, Inc. v. PHMSA (11th Cir.
is deposited with the court on a credit        No. 11-10142), arose out of a customer
bid, MarAd nevertheless is responsible         complaint about the hazmat packaging
for paying in cash those preferred             testing and certification activities of
DOT Litigation News                                     March 31, 2011        Page 45

ASCI. During the course of the                Systems, Inc. v. PHMSA (D.C. Cir. No.
investigation and on-site inspections of      11-1085) as revising the hazardous
ASCI, PHMSA investigators determined          materials regulations to prohibit air
that the lack of certain testing equipment    passengers from placing spare butane
and other resources at ASCI’s testing         fuel cell cartridges in checked baggage.
facility would likely render ASCI
incapable of performing the required
testing in accordance with the applicable        Saint Lawrence Seaway
regulations.       As    such,     PHMSA
purchased samples of ASCI’s packaging           Development Corporation
designs and sent them to an independent
testing lab for design validation testing.        Court Denies Preliminary
The designs tested failed to meet the            Injunction against Work on
regulatory         packaging        testing     Electrical Upgrade to Seaway
requirements. Based on the evidence                         Locks
gathered and the lab results, PHMSA
initiated a civil enforcement proceeding.     On November 17, 2010, the low bidder
ASCI requested an adjudicatory hearing        for an SLSDC procurement to upgrade
before an ALJ. The ALJ issued a split         the electrical distribution system for the
decision that was appealed by both            Seaway’s Eisenhower and Snell locks
parties to the PHMSA Administrator.           submitted a bid protest pre-filing
The Administrator imposed civil               notification to the U.S. Court of Federal
penalties against ASCI totaling $30,170       Claims. Over one month later, on
for four violations of the packaging          December 23, 2010, plaintiff filed a
testing requirements of the HMR.              complaint requesting a declaratory
                                              judgment awarding it the contract.
Review Sought of PHMSA Rule                   Shortly after filing its complaint in Dow
Prohibiting Butane Fuel Cells in              Electric, Inc. v. United States (Fed. Cl.
   Air Passengers’ Checked                    No. 10-883C), plaintiff sought a TRO to
            Baggage                           enjoin the SLSDC from proceeding with
                                              any further activity on the project, which
On March 18, 2011, Liliputian Systems,        had been ongoing since September 30,
Inc., sought review in the U.S. Court of      2010. Following a status conference on
Appeals for the District of Columbia          January 6, 2011, the Court issued an
Circuit of a portion of a January 19,         order denying the motion, based on
2011,       PHMSA       rule      entitled    plaintiff’s failure to show a likelihood of
“Harmonization with the United Nations        success on the merits and the fact that
Recommendations,            International     construction was already underway on
Maritime Dangerous Goods Code, and            the project.       The briefing schedule
the     International  Civil     Aviation     concluded on February 25, during which
Organization Technical Instructions for       the SLSDC argued that the claim should
the Safe Transport of Dangerous Goods         be dismissed for lack of jurisdiction
by Air.” Petitioner describes the specific    because the court has no authority to
provision challenged in Liliputian            award the contract to a specific bidder.
DOT Litigation News                          March 31, 2011   Page 46

This case arose from a sealed bid
procurement in which the solicitation
required specific or equivalent materials.
Although the plaintiff was the low
bidder, the materials submitted in
plaintiff’s bid were not deemed
equivalent, and its bid was thus
nonresponsive. Plaintiff alleges that the
court has authority to award it the
contract based either on its original
submittal or based on a subsequent offer
to provide the materials specified in the
solicitation.
DOT Litigation News                                   March 31, 2011        Page 47

                   Index of Cases Reported in this Issue

41 North 73 West (Avitat) v.                 Barnes v. DOT (9th Cir. No. 10-70718)
Westchester County, 2010 WL 4318655          (Ninth Circuit hears argument in
(2d Cir. 2010) (Second Circuit upholds       challenge to EA/FONSI for third runway
FAA’s decision that Westchester County       at general aviation airport in Oregon),
did not violate its grant assurance          page 22
obligations), page 19
                                             Beach Erectors, Inc. v. DOT, et al.
233 East 69th Street Owners Corp. v.         (E.D.N.Y. 10-5741) (New York DBE
DOT, et al. (S.D.N.Y. No. 10-00491)          applicant challenges denial of DBE
(hearing on challenge to Second Avenue       certification), page 13
Subway project ancillary facility),
page 41                                      Citizens for Sensible Transportation
                                             Planning. v. DOT, et al. (E.D. Wash. No.
Air 1 Moving & Storage, Inc. v. DOT, et      10-00108) (challenge to TIGER grant
al. (9th Cir. No. 10-72797) (moving          project in Washington State settles),
company settles civil penalty appeal),       page 31
page 38
                                             Citizens for Smart Growth, et al v.
Air Sea Containers, Inc. v. PHMSA (11th      FHWA et al. (11th Cir. No. 10-12253)
Cir. No. 11-10142) (hazmat packaging         (appeal dismissed in challenge to Florida
supplier challenges civil penalty in         bridge project), page 28
Eleventh Circuit), page 44
                                             City of Dania Beach, et al. v. FAA, 628
America Cargo Transport, Inc. v. United      F.3d 581 (D.C. Cir. 2010) (D.C. Circuit
States, 625 F.3d 1176 (9th Cir. 2010)        affirms FAA decision approving runway
(Ninth Circuit affirms dismissal of          expansion at Fort Lauderdale
Cargo Preference Act suit), page 43          International Airport), page 17

Association of American Railroads v.         City of Santa Monica v. FAA, 631 F.3d
FRA, et al. (D.C. Cir. No. 10-1154)          550 (D.C. Cir. 2011) (D.C. Circuit
(D.C. Circuit dismisses petition for         affirms FAA’s decision invalidating City
review of metrics and standards for          of Santa Monica’s jet ban), page 16
intercity passenger rail service), page 40
                                             Coalition to Preserve McIntire Park v.
Association of American Railroads v.         Mendez (W.D. Va. No. 11-00015) (new
FRA, et al. (D.C. Cir. No. 10-1198)          environmental challenge to Virginia
(FRA reaches agreement in litigation         interchange), page 33
regarding positive train control final
rule), page 39
DOT Litigation News                                   March 31, 2011        Page 48

County Board of Arlington v. DOT, et        Holbrook, et al. v. United States, 2010
al. (D.D.C. No. 09-01570) (Court            WL 3943736 (S.D. W.Va. 2010) (court
dismisses Arlington County                  dismisses tort claim over suspended
environmental challenge to I-95 Hot         airworthiness certificate), page 21
Lanes), page 11
                                            In re SBX, 2010 WL 4688213 (Bankr. S.
CSX Transportation, Inc. v. Alabama         D. Cal. 2010) (DOT maintains senior
Department of Revenue (No. 09-520)          lien in SBX bankruptcy), page 30
(Supreme Court holds that railroad may
challenge state tax exemption as            John Crane, Inc. v. Atwell (No. 10-272)
discriminatory under 4-R Act), page 3       (Supreme Court invites government’s
                                            views on certiorari in Locomotive
Delhur Industries, Inc. v. U.S., 95 Fed.    Inspection Act preemption case), page 5
Cl. 446 (Ct. Cl. 2010) (FHWA wins
New Mexico contract case), page 29          Jones v. United States, et al., 625 F.3d
                                            827 (5th Cir. 2010) (Fifth Circuit affirms
Dow Electric, Inc. v. United States (Fed.   summary judgment for FAA in
Cl. No. 10-883C) (court denies              retaliation case), page 20
preliminary injunction against work on
electrical upgrade to Seaway locks),        Karst Environmental Education and
page 45                                     Protection, Inc. v. FHWA (W.D. Ky.
                                            No. 10-00154) (environmental challenge
FAA, et al. v. Cooper (No. 10-1024)         to Kentucky highway), page 35
(United States seeks Supreme Court
review of decision allowing non-            Ladd v. United States, 630 F.3d 1015
pecuniary damages for Privacy Act           (Fed. Cir. 2010) (government seeks
violations), page 4                         panel rehearing or rehearing en banc in
                                            federal railbanking program takings
Friends of Congaree Swamp v. FHWA           case), page 9
(D. S.C. No. 10-02394) (environmental
challenge filed against South Carolina      LaHood v. Garcia and East Valley
bridge), page 34                            Travel & Tours (D. Ariz. No. 10-02315)
                                            (affirmative litigation enforcing FMCSA
Gaxiola et al. v. City of Los Angeles, et   out-of-service order), page 37
al. (C.D. Cal. No. 10-06632) (FHWA
                                            LaHood v. RLT Tours, LLC et al. (M.D.
and FTA defend against tenants'
                                            Pa. No. 11-0073) (affirmative litigation
lawsuit), page 14
                                            enforcing FMCSA out-of-service order),
                                            page 37
Gina Michelle Moore d/b/a Warbird
SkyVentures, Inc. v FAA (6th Cir. No.       Liliputian Systems, Inc. v. PHMSA
10-4117) (Warbird Sky Ventures              (D.C. Cir. No. 11-1085) (review sought
contests FAA decision finding Sumner        of PHMSA rule prohibiting butane fuel
County Regional Airport in compliance       cells in air passengers’ checked
with federal grant obligations), page 26    baggage), page 45
DOT Litigation News                                     March 31, 2011        Page 49

Love Terminal Partners v. United States,       Parkridge 6, LLC and Dulles Corridor
2011 WL 613263 (Fed. Cl. 2011) (court          Users Group v. DOT, 2011 WL 971530
rules against U.S. on Love Field takings       (4th Cir. 2011) (Fourth Circuit upholds
claim), page 12                                dismissal of challenge to Dulles
                                               Metrorail extension), page 10
Maimone v. FHWA, et al. (D. Or. No.
10-00441) (environmental challenge to          Paskar, et al. v. DOT (2d Cir. No. 10-
Oregon bridge dismissed), page 29              4612) (Second Circuit challenge to panel
                                               study of enclosed marine trash transfer
McGuirl v. Peters (D.D.C. No.04-01465)         facility adjacent to LaGuardia Airport),
(FHWA settles D.C. environmental               page 24
challenge), page 31
                                               Port of Shreveport-Bossier v. FRA (5th
Melvin v. United States (D. Ariz. No.          Cir. No. 10-60324) ((oral argument held
08-1666) (FHWA settles Arizona                 in challenge to FRA’s jurisdiction over
negligence case), page 32                      the Port of Shreveport-Bossier), page 39

Metropolitan Taxicab Board of Trade v.         Safeguarding the Historic Hanscom
City of New York (No. 10-618)                  Area’s Irreplaceable Resources v. FAA
(Supreme Court denies certiorari in New        (1st Cir. No. 10-1972) (briefing in
York City hybrid taxi preemption case),        historic preservation group challenge to
page 6                                         replacement of hangar at Bedford-
                                               Hanscom Field), page 23
National Ass’n of Small Trucking
Companies, et al. v. FMCSA (D.C. Cir.          Schneider v. DOT, et al. (N.D. Oh. No.
No. 10-1402) (parties settle litigation        10-02297) (FHWA sued over Ohio
challenging FMCSA’s CSA enforcement            railroad crossing project), page 34
model), page 36
                                               Secretary of Transportation v. James D.
National Federation of the Blind v.            Benge dba JDB Transport, et al. (S.D.
United Airlines (N. D. Cal. No. 10-            Ohio No. 10-00802) (affirmative
04816) (court requests views of the            litigation enforcing FMCSA out-of-
United States in airline preemption            service order), page 37
case), page 14
                                               Sierra Club v. FHWA (5th Cir. No. 10-
Owner-Operator Independent Drivers             20502) (briefing in Fifth Circuit
Ass’n, Inc., et al. v. DOT, et al. (7th Cir.   challenge to Texas parkway), page 32
No. 10-2340) (oral argument held in
challenge to FMCSA electronic on-              Taylor v. Babbitt, 2011 WL 159769
board recorder rule, page 35                   (D.D.C. 2011) (court orders release
                                               under FOIA of aircraft design data),
                                               page 21
DOT Litigation News                                   March 31, 2011        Page 50

The St. Paul Branch of the NAACP, et        United States, et al. v. ALAKAI (O.N.
al. v. DOT, FTA. et al., 2011 WL            1182234) (E.D. Va. No. 10-232) and
291858 (D. Minn. 2011) (court issues        United States, et al. v. HUAKAI
decision in environmental justice           (O.N.1215902), 2011 WL 7819274
challenge to Minnesota light-rail           (E.D. Va. 2011) (court rules in Hawaii
project), page 42                           Superferry bankruptcy case), page 44

Township of Tinicum, et al. v. DOT (3rd     US Airways v. O’Donnell, 627 F.3d
Cir. No. 11-1472) (Tinicum Township         1318 (10th Cir. 2010) (Tenth Circuit
petitions for review of FAA decision to     finds state regulation of airline alcohol
approve the capacity enhancement            service preempted, remands for 21st
program at Philadelphia International       Amendment analysis), page 8
Airport), page 26
                                            Williamson v. Mazda Motor Co. of
Town of Barnstable v. FAA (D.C. Cir.        America, Inc. (No. 08-1314) (Supreme
No. 10-1276) (FAA “No Hazard”               Court holds that NHTSA seatbelt
determination for proposed Cape Cod         standard does not preempt state common
wind turbines challenged), page 23          law standard), page 2

Trump, et al. v. FAA (11th Cir. No. 10-     Wilson v. DOT, 2010 WL 5479580
15543) (FAA challenged on categorical       (D.C. Cir. 2010) (summary affirmance
exclusion of Fixed Base Operator            for FHWA in D.C. FOIA case), page 28
development area proposal at Palm
Beach International Airport), page 25       Yorkshire Towers Co. LP and Yorkshire
                                            Towers Tenants Ass’n v. FTA, et al.
United Air Lines, et al. v. City of         (S.D.N.Y. No. 10-8973) & Yorkshire
Chicago (Ill. Cir. Ct. Cook Cty, Ch. Div.   Towers Co. LP and Yorkshire Towers
11-2081) (DOT mediates settlement of        Tenants Ass’n v. DOT, et al. (S.D.N.Y.
O’Hare expansion project suit), page 15     No. 11-01058) (owner and residents of
                                            Manhattan apartment building file two
                                            lawsuits over Second Avenue Subway),
                                            page 41

								
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