ACI-NA Weekly Legal Briefing--Issue 3

 

Airports Council International-NA

February 24, 2012

ACI-NA’s Weekly Legal Briefing                  

Volume 2012, Issue 3

Week of February 20 – February 24, 2012

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Cases/Pleadings Worth Noting:

  • Here’s a case from the 9th Circuit that demonstrates the frustration people can have when placed on the –No-Fly” list and the difficulty of getting off the list. 

Ibrahim v. Dep't of Homeland Security(9th Cir., 02/08/2012; No. 10-15873)

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/08/10-15873.pdf

[submitted by James Briggs, Jr.]

  • Review the U.S. Department of Justice amicus curiae brief filed January 24, 2012 in the 9th Circuit involving a question of effective communication under Title II (public entities) of the Americans with Disabilities Act.  Even though the case involves communication services for a high school student who has a significant hearing loss, the DOJ brief provides insight into DOJ’s position on communication services that public entities must provide under the ADA.  The focus of the DOJ brief is whether the school’s accommodation provided an effective enough communication to afford the student an equal opportunity to participate.

Link to DOJ Brief:  http://content.govdelivery.com/attachments/USDOJ/2012/01/25/file_attachments/89064/For%2BFiling%252C%2BKM%2Bv%2BTustin%2BBrief%2Bfor%2Bthe%2BUnited%2BStates%2Bas%2BAmicus%2BCuriae.pdf

In its brief, the DOJ provides the following overview of effective communication obligation for public entities under Title II of the ADA.  The footnotes have been omitted.

Title II of the ADA prohibits discrimination on the basis of disability by public entities. 42 U.S.C. 12131-12132.1 The DOJ’s Title II regulations address, inter alia, a public entity’s obligations to provide effective communications. See 28 C.F.R. 35.104 (definition of auxiliary aids and services); 28 C.F.R. 35.160-35.164 (2009). The regulations require public entities to take “appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.” 28 C.F.R. 35.160(a)(1) (emphasis added). In order to provide equal access, a public entity “shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. 35.160(b)(1) (emphasis added).  The Department of Justice Technical Assistance Manual for Title II (Title II TAM) further explains that the type of necessary auxiliary aid will vary depending on several factors, including the individual with a disability’s chosen method of communication, the “length and complexity of the communication involved,” “the number of people involved, and the importance of the communication.” Title II TAM, § II-7.1000-7.1100.

In determining what auxiliary aid is “necessary, a public entity shall give primary consideration to the requests of individuals with disabilities.” 28 C.F.R. 35.160(b)(2). A public entity, however, is not required to provide an auxiliary aid that would “result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.” 28 C.F.R. 35.164. If the specific auxiliary aid the individual requests would cause a fundamental alteration or impose an undue burden, the public entity must still take action to “ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.” 28 C.F.R. 35.164.

[submitted by James Briggs, Jr.]

  • Local Preference Statute in Construction Procurement Upheld

The 1st Circuit in Antilles Cement Corp. v. Fortuno examined the application of the Commerce Clause and the Buy American Act to a Puerto Rico procurement statute that required construction projects conducted by the Commonwealth to use only construction materials manufactured in Puerto Rico.  The Court held that the Commerce Clause is inapplicable because the Commonwealth is acting as a market participant and not as a regulator.  In addition, the Court found that the Buy American Act does not preempt the more restrictive Puerto Rico statute (which is the functional equivalent of a state law).  First, the Buy American Act is not pervasive and does not evidence a clear and manifest intent to preempt procurement policies. Second, the Court found no irreconcilable conflict between the Buy American Act and the Puerto Rico procurement statute because compliance with the more restrictive Puerto Rico statute also satisfies the more relaxed standards of the Buy American Act.  Therefore, neither the Commerce Clause nor the Buy American Act affects the local preference requirement in construction projects conducted by the Commonwealth (opinion issued January 17, 2012).

Link:  http://www.ca1.uscourts.gov/pdf.opinions/09-1314P-01A.pdf

[submitted by James Briggs, Jr.]

Regulatory Matters:

  • The FAA has posted on its website (http://www.faa.gov/airports/news_information/news/) updated Davis-Bacon labor provisions required for AIP funded construction contracts over $2000.  The updated provisions incorporate payroll and basic records changes (Paragraphs 3(ii)(A) & (B)(1)) made to the Davis-Bacon labor provisions in a final rule adopted by the U.S. Department of Labor in 2008 (73 Fed. Reg. 77504, 12/19/08) (http://www.gpo.gov/fdsys/pkg/FR-2008-12-19/pdf/E8-29886.pdf)
  • On Friday, February 10, 2012, the U. S. Small Business Administration (“SBA”) published its Final Rule in the Federal Register, reporting on the results of its initial comprehensive review of small business size standards to make appropriate adjustments to reflect changes in market conditions as mandated by the Small Business Jobs Act of 2010.  The SBA has adopted a sector by sector approach in reviewing the small business size standards, and this Final Rule reflects its review of all receipts based small business size standards in the North American Industry Classification Systems Sector 54, Professional, Technical and Scientific Services classifications.  The Final Rule increases 37 small business size standards for 34 industries and three sub-industries in Sector 54.  SBA also increased the one size standard in Sector 81, Other Services, as a part of this Final Rule.  The new rule is effective on March 12, 2012.

The weblink for the Final Rule as published in the Federal Register, see:  http://www.gpo.gov/fdsys/pkg/FR-2012-02-10/pdf/2012-2659.pdf

Some of the changes in size standards may affect your airport’s submissions to the FAA/DOT (due by February 28, 2012), with respect to the Part 26 small business element of the airport DBE program.

Upcoming Conferences

Upcoming Conferences and Events:

  • The Federal Bar Association’s Transportation and Transportation Security Law Section’s 2012 Security Law Forum will take place on Tuesday, February 28, 2012 from 9:00 a.m. until 12:30 p.m. at TSA Headquarters Town Hall, Pentagon City.  See the Final Conference Agenda    Registration will be available onsite!
  • REGISTRATION FOR THE 2012 ACI-NA SPRING LEGAL CONFERENCE IS NOW OPEN :         “The ABCs of RFPs and Airport Procurement---Lessons from those who’ve been there and back.” The Conference will take place from April 25-28, 2012 at the Double Tree Hotel, Charleston, SC.   See the conference registration information and  Preliminary Conference Agenda.     Early Bird Registration Deadline is April 2.
  • 2012 ACI-NA/AAAE Spring Washington Conference

March 14, 2012 - March 16, 2012

Washington, DC

Recent Events of Interest……..

  • Highlights of Interest from the American Bar Association’s Air & Space Law Forum Conference

On Friday, February 17, the topic of the recent FAA Reauthorization legislation was front and center of focus during the opening sessions.  Congressman John Mica, current Chair of the House Transportation and Infrastructure Committee, was the opening morning speaker of the conference.  He discussed the reauthorization legislation, including some of the provisions of concern to airports, such as NextGen funding, funding of airport infrastructure projects, and hurdles encountered during the legislative process.  Following his remarks, the legislative panel, moderated by Robert Land, Sr. Vice-President for Government Affairs and Associate General Counsel, JetBlue Airways Corporation, provided time for a more comprehensive discussion of the matters left to be addressed following the President’s signing of the FAA Reauthorization legislation.  ACI-NA’s Greg Principato commented on the deficiencies of the legislation with respect to funding of airport infrastructure.  Susan Kurland, U.S. DOT Assistant Secretary Aviation & International Affairs conceded that a review of airport infrastructure needs and funding mechanisms should be undertaken with input from all affected stakeholders, and Sharon Pinkerton, Airlines for America, Senior Vice President Legislative and Regulatory Policy commented on the need to set better standards for evaluating the costs and benefits of NextGen technology prior to its broad implementation.  Gale Sullivan, Senior Professional Staff Member, Majority Staff Senate Subcommittee on Aviation, and Holly Woodruff Lyons, Republican Staff Director and Senior Counsel Subcommittee on Aviation, shared their views on likely issues of importance in the upcoming aviation legislative agenda.

During the Safety Panel discussion, ACI-NA associate board member, David Bannard of Foley and Lardner, discussed the FAA reauthorization’s bill handling of liability and data protection issues in the context of airport safety management systems.  Bannard stated that the legislation amply addresses issues to protect airports from liability that might otherwise have resulted from the disclosure of information related to airport safety management systems implemented as a result of recent DOT rulemakings.  During the final panel discussion, ACI-NA associate member, Scott Lewis, Managing Partner of Anderson & Kreiger, provided an overview of two recent airport litigation matters---the Tinicum Township litigation, several components of which are ongoing,  and the 9/11 litigation, from which Massport was dismissed this past summer by a federal district court in the Southern District of New York.

Susan Baer, Aviation Director of the Port Authority of New York and New Jersey was the keynote luncheon speaker for the conference.  Ms. Baer touched on a number of important issues facing airports---ranging from, among others, limitations on capacity at the Port Authority’s three congested airports and the impact that capacity limitations have on competitive air service offerings at those airports, implementation and funding of NextGen technology, and the need to address funding of airport infrastructure in more comprehensive ways to insure that local communities receive the air transportation services needed to enhance and maintain their economic viability.  The attendees raised a number of questions following her presentation, and received her presentation with enthusiastic applause.

Monica Hargrove, ACI-NA’s General Counsel served as Program Chair for the Conference.

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

  Send it to:  mhargrove@aci-na.org

Have a great weekend!

Monica

Monica R. Hargrove
General Counsel

Direct: (202) 861-8088                                                                                                      
E-mail: mhargrove@aci-na.org                                                                                      


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