ACI-NA Weekly Legal Briefing


                                                   ACI-NA’s Weekly Legal Briefing                                                  

Volume 2011, Issue 27

Week of September 12 – 16, 2011

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Litigation of Interest:

  • On September 15, 2011, ACI-NA filed a Motion for Leave to File an Amicus Brief and a Brief in Support of the Motion of McCarran International Airport and Clark County filed with the Supreme Court of the State of Nevada for Affirmance of the state district court’s opinion in 70 Limited Partnership vs. McCarran International Airport.  In its brief, ACI-NA emphasized the significant impact that cases like this could have on the maintenance of economically sound commercial airports and a national air transportation system, and pointed out that there are “important consequences to airports from damage awards in takings cases.”  Since each airport sponsor’s resources are compromised when the taxpayers of the county might be required to pay the difference between amounts needed to maintain the airport when revenue shortfalls exist due to damage awards made to claimants in cases like this, ACI-NA cautioned the court to consider the federal airport system under which airports are operated. The brief highlighted that the award of damages in cases where the landowner fails to show any actual use of airspace or to present evidence of a decrease in the value of the formerly owned property, or any damages resulting from airplanes that flew above the property, would be improper and encouraged the Court to affirm the ruling of the district court.

Dates for Oral argument have not yet been set by the Nevada Supreme Court in this case.

  • We reported in an earlier issue of our Weekly Legal Briefing that on July 1, 2011, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in the Southwest Airlines Co. v. Transportation Security Administrationcase.  In that opinion issued by Judge Kavanaugh, a divided court upheld fees charged the airlines by TSA.  Southwest and 19 other airlines had alleged that TSA’s determination of their year 2000 airport security costs were arbitrary and capricious under the Administrative Procedure Act, and were unconstitutional.  The majority opinion found that the TSA charges were neither, and dismissed the appeal brought by the airlines. 

Today, in an Order issued in response to the airlines’ request for rehearing en banc by the U. S. Court of Appeals for the District of Columbia Circuit, the petition was denied in a Per Curiam Order, following consideration by Chief Judge Sentelle, and Judges Ginsburg, Henderson, Rogers, Tatel, Garland, Brown, Griffith, and Kavanaugh. 


  • In a recent decision of the U. S. Court of Appeals for the Sixth Circuit, the Final Decision of the Federal Aviation Administration dismissing a complaint against the Sumer County Regional Airport Authority was upheld, where the FAA determined that the airport authority had not violated certain federal grant assurances.  The particular grant assurance at issue was Grant Assurance 22, which disallows an airport receiving funds under the Airport Improvement Program from engaging in “unjust discrimination.”  The petitioner in that case, Gina Michelle Moore, is a Tennessee resident who operated a business called Warbird Sky Ventures, which provided hands-on, instructional flying in aircraft from World War II.  The Court upheld the FAA’s Final Decision and Order because it did not find that the plaintiff’s perceived errors in the FAA’s administrative fact-finding process or other concerns raised, suggested in any way that the airport authority engaged in “unjust discrimination.”  Citing an earlier 6thCircuit decision that evaluated the standards for a finding of “unjust discrimination,” Wilson Air Ctr., LLC v. FAA, 372 F.3d 807, 817 (6thCir. 2004), the Court stated:  “It is not enough to simply show that a decision was unfair or discriminatory. Id.  The decision must be the result of unjust discrimination…..In other words, an airport may legally establish ‘different rate to similar users of the airport if the differences can be justified as nondiscriminatory and such [rates] are substantially comparable.”  Id.  Gina Michelle Moore, v. Federal Aviation Administration, U. S. Court of Appeals for the Sixth Circuit, No. 10-4117 (September 13, 2011).
  • Last week we reported on a case involving allegations arising at an airport airport screening checkpoint and need to correct two important errors.  First, the word “ejected” in the first sentence should have been “rejected,” and second, the article reported incorrectly that the plaintiff in the case cleared the airport screening checkpoint prior to his arrest, when, in fact, he refused screening and was ultimately escorted by the Richmond Police Department officers through the magnetometer and into custody.  We apologize for these errors, which have been corrected in the following revised draft of the article. 

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

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

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

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

Aaron Tobey refused screening at the airport security checkpoint and was ultimately escorted by the Richmond Police Department officers through the magnetometer and into custody, where he was arrested and handcuffed. Government agents from agencies including the Joint Task Force on Terrorism questioned Tobey for approximately 90 minutes before citing him for disorderly conduct, a Class I misdemeanor under Virginia law, carrying penalties of up to $2,500 and 12 months in jail. The Henrico County Commonwealth's attorney eventually dropped the charges against Tobey.

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

Legislative and Regulatory Developments:

The ACI-NA Government Affairs Department Reported as follows on yesterday’s successful outcome of the most recent FAA Reauthorization legislation.

“Thanks to all the hard work done by airports across the country to share with Congress and the public the true impact of the FAA shutdown in July, we were able to avert a second shutdown today.  The Senate voted down Senator Rand Paul’s (R-KY) amendment that would have cut FAA funding to its FY08 level by a vote of 36 to 61, and defeated a highway-related amendment as well.  The Senate just passed the House version of the FAA/Highway extension bill by a vote of 92 to 6. 

The bill will authorize FAA operations through January 31, 2012.” 

Please contact ACI-NA’s Government Affairs staff should you have any additional questions or concerns.

Upcoming Conferences

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

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

James Cherry, President & CEO, Aéroports de Montréal

will be the keynote speaker on Friday morning, September 23

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

• Litigation management

• Governance issues (public and private sector)

• Discovery requests

• Management oversight of government investigations

• Legal implications of government regulations and policies

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


MODERATOR:  Monica R. Hargrove

General Counsel, Airports Council International-North America



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

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

Francine Kerner, Chief Counsel, US Transportation Security Administration

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

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


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

on October 15 – 16, 2011

The agenda is available on the ACI-NA Website!

Online registration is available!

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

Timothy Karaskiewicz at

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

  Send it to:

Have a great weekend!


Monica R. Hargrove
General Counsel

Direct: (202) 861-8088