What Happens in Tucson ….

October 29, 2005

… does not stay there. Here’s a brief overview of the workshop and its speakers, for those who weren’t able to attend.

As Tucson VP and counsel Marjorie Perry pointed out, not many people go to law school with the express purpose of becoming an airport attorney. It does seem that the vast majority (there are, apparently, two exceptions, both of whom were present at the workshop) sort of falls into this field. I was certainly no exception, coming to it from a strictly municipal/county law background. Therefore, the nature of the business can be overwhelming and at times frustrating for newcomers. As Stephen Kaplan of KKR pointed out, what the business of airport law really is, at times, is a "constant multi-dimensional chess game" – rather like that 3D chess they used to play on Star Trek. KKR and AAAE staff are to be commended for putting together an incredible program that eased folks into this field, and still managed to teach us "old dogs" some new tricks – no mean feat!

The first day of the workshop in Tucson began with an excellent overview of the "basics" – some terminology, and Dan Reimer’s "Top Ten" airport concepts. Number one ("Airport proprietors are in the driver’s seat") and number five ("The forum in which disputes are litigated often is critical to the outcome") were especially timely, I thought. Dan and Frank San Martin also spoke on "Airport Operations" generally, addressing such diverse topics as the FAA structure and functions, airport operating certificates and requirements, and airport rules and regulations and Minimum Standards.

We also heard from Peter Kirsch and Roger Johnson (who, as a former LAX operations director, claimed rights as "the only one in the room Heather Locklear has ever played"), who talked about Airport Development Issues. Any new capital project can implicate a wide variety of laws, and Roger and Peter pretty much hit them all – FAA approvals, NEPA and other environmental review processes, noise evaluation and mitigation, land acquisition programs, zoning and other local land use laws, and height restrictions.

We rounded out the first day with a very interesting roundtable, in which many of the speakers (including myself) participated. The hypotheticals that were presented, during a Peter Kirsch-moderated discussion, were terrifyingly true-to-life, all centering around the essential and eternal conflict – "Who’s really the client?" Is it your mayor in a strong mayoral form of municipal government? The rogue city council person who has some Top Secret plan for airport development he’s enlisted you, the hapless airport attorney, to implement behind the director’s back? The commission as a whole? I’m still not sure how many answers we came up with, but I hope we at least gave some guidance and "food for thought" – I also hope we didn’t completely scare off the new kids.

On the second day, Francine Kerner, Chief Counsel of TSA, spoke about the interplay between TSA personnel and local LEOs and airport officials, and the need to recognize the overlapping jurisdictional issues that arise in the airport security context. Scott Dalton, a TSA attorney in DC, and some of his colleagues followed up, and gave us all some helpful tips on working with TSA in the areas of checkpoint reimbursement agreements, LEO agreements, letters of intent and the screening partnership program.

Allow me a brief digression here: Those of us from airports universally agreed that it was great to see so many TSA attorneys at this conference. Other attorneys I know who work in other fields that relate with and to federal attorneys claim their federal counterparts are not nearly so accessible and even seem a little isolated. Not so with TSA and FAA, and that’s a credit to their GCs and staff attorneys. It would seem to indicate a culture of cooperation that’s very helpful.

As a further illustration of this point, Jonathan Cross and Frank San Martin from FAA taught us about "PGLs" (Program Guidance Letters, pronounced "piggles" which – well, all I can see now is Porky Pig’s face on the FAA letterhead, so thanks for that), illuminated the byzantine maze that is collectively the sponsor assurances, and gave us a new website that the FAA is working on which should give us all free access to Part 16 decisions: http://agc.crownci.com/index.cfm – which is now going up in the "Useful Links" typelist on this page. Especially helpful was a breakout session in which real-life grant documents were passed around for the new AAs to take a look at. Jonathan and Stephen Kaplan teamed up also to present a very thorough and frank look at airport financial issues – including great perspectives on the "granddaddy" issue where the FAA is concerned – revenue diversion.

Helen Raabe from Denver earned the title of "Hardest Working Woman in the Airport Law Business" by leading three sessions consecutively on ground transportation, bankruptcy, and our joint session on "the business of airports" from the commercial airport perspective. With regards to the impact of airline bankruptcies on airports’ bottom lines, Helen counseled us to consider the importance of the carrier to the overall traffic at our airports, the amount of prepetition debt owed, and whether the case had any special complexities (i.e., whether the airport had entered into an agreement with the carrier that could be construed as a financing agreement as opposed to a "true lease" – more on that issue in a subsequent post) when we’re trying to decide whether to hire outside counsel.

In the business of airports presentation, Helen and I focused on airline use and lease agreements, concession agreements, and First Amendment issues. We discussed the recently decided Rendon case and some hypothetical issues concerning statues, fountains, and intranets-as-public-fora. I gave some practice tips concerning concession agreements (which I’ll recap in a subsequent post), and Helen talked about residual vs. compensatory and hybrid rate-setting models in the AULA context.

Other breakout sessions on the second day that I wasn’t able to attend included discussions on GA security issues, the business of GA airports (including through-the-fence agreements and procurement issues), aircraft operating restrictions, and airport’s obligations to users.

John Putnam and I wrapped things up on the last day with an extended discussion of compliance and enforcement issues. We had decided to approach this by way of a (hopefully entertaining) hypothetical airport – Mosquito Beach, the airport only a lawyer could love. (Not to be confused with any other airport that starts with an "M" and ends with a "beach" – just wanted to make that clear!) Through a convoluted fact pattern involving waste dumps, whistleblowing, seagulls being sucked into aircraft engines, and abandoned barrels of solvents, we talked about RCRA, DBE rules, employment discrimination and Title VII, the Part 16 process, and the importance of environmental management programs in your overall compliance efforts.

Before the conference and during breaks on the first day, I spoke with quite a few newly minted airport attorneys (you know, I’m just going to call us "AAs" from here on out) who, to a one, confessed to feeling overwhelmed at their new responsibilities and especially making sense of a convoluted, complex, multi-layered regulatory scheme involving multiple agencies and stakeholders, and all in the context of municipal/county/state government or public law functions. I can only say what I said to them: "Everyone feels the same way. Even now, at times."

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The End of the Song

October 28, 2005

Delta’s announced plans to eliminate its low-cost division carrier, Song, and integrate those routes and planes into its regularly scheduled offerings. Delta said it plans to have this move finalized by May 2006. For more information, see the article here from MSNBC.com, or this piece from CNN Money.

… has to go to my beloved husband Chris and our amazing daughter Kayleigh for muddling through without Mom for five days. Actually, I owe them a lot beyond the trip itself – preparing for presentations at a CLE, as I have discovered the past few months, is not the easiest of tasks! It’s relatively simple to go to one of these events – show up, meet folks, sit down, learn, ask questions, roll your eyes at something you don’t agree with, hide your shock when you realize how close you’ve come to messing something else up, you know, the usual – but add to all that, when you’re a speaker, actually putting your presentation together, thinking of how little you actually know, freaking out, recovering, making a research plan, revising the presentation, practicing the presentation, freaking out again, recovering some more …. it’s a task, to say the least.

Now, don’t get me wrong – I loved every minute of it (I’m a research nerd, though – your mileage ay vary). And I’d do it again in a heartbeat. But it did take time away from family, and for that, I need to say again – thank you, guys, for everything you did and put up with to help me get to Tucson!

I’m home for another year, at least.

A Rousing Success

October 28, 2005

Congratulations to Kaplan Kirsch Rockwell, its partners involved in the seminar this past weekend (Stephen Kaplan, Peter Kirsch, John Putnam, and Dan Reimer), AAAE (especially Tom Zoeller), and all of my fellow speakers – I think this was the "best yet" Basics of Airport Law Seminar.  A very special thank you to Kristen McLellan who performed countless "thankless" tasks graciously and (seemingly) effortlessly!

For those who didn’t make it, or for those who did and would like a brief recap, I’ll be posting summaries of the speakers and topics over the next few days. One comment I heard repeatedly was how wonderful the materials and outlines prepared by KKR were – I agree completely. One of the comments made during the last day concerned a possible "Airport Reporter" – some publication that could collate all these difficult diverse topics into one bound offering. Tom Zoeller remarked that it was incredibly expensive and time-consuming not only to collate such materials but to offer them in updated fashion in perpetuity; but others suggested to me privately, later, that these outlines could serve as the first incarnation of such a publication. There may be something to that.

Other upcoming topics are "inspired by" discussions held at the conference, and include:

  • The application of the "secondary containment" rule to airport fueling vehicles by the EPA;
  • Comparison of the DBE rules in Part 26 and the "new" rule for airport concessions, Part 23;
  • When to hire bankruptcy counsel;
  • How to "manage" relationships with elected and appointed officials;
  • And more – I’m open to suggestions, folks!

Tucson-Bound

October 21, 2005

Posting will be either light or nonexistent, depending on the level of access I find in Tucson, as I travel out Southwest for the 21st Annual Basics of Airport Law Workshop, co-sponsored this year by AAAE, the International Municipal Law Association, and the extremely fine folks at Kaplan Kirsch Rockwell. I was fortunate to be partnered up with two incredibly knowledgeable and easy-to-work-with experts to present two sessions  – one on "the business of commercial airports" with Helen Raabe, Legal Director of Denver International, and one on compliance issues with John Putnam of Kaplan Kirsch.

So, hang tight – if you’re not going to Tucson, we’ll miss you (so plan for next year!) – and I’ll see you next week, with (I’m sure) a ton of new exciting topics to digest, discuss, and debate.

Well, airport officials at the Los Angeles International Airport (LAX) certainly do. They escaped the wrath of that illness, thankfully, but they’re racing the clock to adopt a workable plan to prevent avian flu from wreaking havoc with US aviation, health, welfare, and the economy in general. As the Associated Press correctly notes in its article, linked above:

The airport is the nation’s top gateway for Asian travelers, serving 26 daily flights carrying up to 10,000 passengers. It could be a hot spot if the bird flu mutated into a form that could pass between humans.

LAX officials are looking at ways to quarantine possibly infected PAX on the airfield, if necessary for up to a week. The logistics of this are impressively crazy-making:

  • Who funds the operation?
  • How would you separate infected PAX from well PAX from those who just aren’t showing symptoms yet? How would you tell which is which?
  • How do you feed 1,600 quarantined people and provide sufficient sanitation facilities for them?
  • Who would provide medical care, and how?
  • What means of shelter can the airport provide?

It’s prudent for any large airport that receives international arrivals to consider having plans in place specific to known threats. Don’t forget your employees’ well-being, either – as we saw in the wake of Hurricane Katrina, New Orleans public employees, already severely taxed by their duties, were torn between protecting their families and serving the public.

Filling in the Blanks

October 17, 2005

Periodically this week I’ll be posting backdated entries. These drafts were, for some reason, not published as scheduled. I’m still learning the Typepad ropes, so be patient with me, and know that, no, you’re not crazy, those posts weren’t there before (or – well – you might be crazy, but this isn’t why).

Industry News of Note

October 17, 2005

Well, it’s Monday. And that means it’s time for the Monday Morning Industry News of Note here at The Airport Lawyer – a roundup of headlines and interesting supporting tidbits that might keep you occupied for a while.

No puns about Irish tempers, please: Dublin airport security screeners are musing on the possibility of a strike (Breaking News/Ireland) …

No rest for the Wiki’d: The fight between American Airlines and Southwest Airlines over the Wright Amendment has apparently spilled over to Wikipedia, the online encyclopedia (Sun Herald) …

Can we talk – you know, again?: US and EU reps are meeting – again – to discuss opening up American airports to European carriers (Forbes) …

And the walls come tumblin’ down: Davey Terminal at Detroit Metropolitan Airport is slated for demolition this week (Detroit Free Press) …

Don’t meet me in St. Louis: Privately held airport security company Cernium, Inc., is relocating from St. Louis to the D.C. area (Washington Post) …

Bankruptcy just isn’t fun: Deal between Northwest and its mechanics’ union bad for the union, experts say (Reuters) … Meanwhile, its feeder carrier Mesaba files, too (Detroit Free Press) … The Pension Benefit Guaranty Corp. objects to UAL‘s bankruptcy exit plan on the grounds that it violates the terms of the agreement that allowed UAL to terminate its plans (MSNBC.com) (and go here for the statement by PBGC Executive Director Bradley Belt on the airline filings this year).

That’s it for this week’s edition. Tune in next week – I hope to find some interesting source material on the extent to which the anticipated and much-feared avian flu outbreak will impact the aviation industry.

Last week the Supreme Court denied certiorari in the case of Callison v. City of Philadelphia (128 Fed. Appx. 897 (3rd Cir. (PA) 2005)). Thus, the Third Circuit’s opinion (that employers’ sick leave policies that do not interfere with substantive rights under the Family and Medical Leave Act are permissible) stands.

Facts: Callison began missing work frequently around January 2000. He was placed on a "Sick Abuse List," and therefore required to present medical certification for all missed work and subject to progressive penalties for violations of the sick leave policy in his employee manual. He was on sick leave in January 2001 when, pursuant to the City’s policies, a sick leave investigator called him to make sure he was at home, as required by those policies. Callison wasn’t at home, though, and this earned him a warning. Subsequent missed calls during a 12-week FMLA leave apparently earned him a one-day and a three-day suspension from work, which were served on his return.

Statutory Authority: 29 U.S.C. §2615(a)(1) provides that "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of … any right provided" under FMLA. There is no "justification" or "business necessity" defense.

Issue: DId the enforcement of the City’s policies (sick leave, calling in, stay-at-home requirements) amount to a denial of Callison’s FMLA rights?

Analysis: Callison’s claim rested on the loss of wages during the served suspensions, which he asserted translated to a denial of a right to return to his previous salary. The Court rejected this argument and held that the policies, which did not conflict with any substantive provision of FMLA, did not interfere with Callison’s FMLA rights. The Court noted that any such direct conflict would, of course, result in the policies yielding to the Act. "Internal sick leave policies or any collective bargaining agreements are only invalidated to the extent they diminish the rights created by FMLA." (Op., p. 7.)

This is absolutely the correct result. It’s almost impossible for me to believe, personally, but astonishingly enough, some people don’t like their jobs. Out of those folks, some are – brace yourself – willing to call in sick when they aren’t really sick just to have a day off! (I know!) It’s an awareness of those unfortunate facts that leads to policies such as Philadelphia’s "if you’re sick, you need to stay home" provision and the call-in/check-up provisions that enforce it. And although it’s also unfortunate that sometimes, people who are entitled to the leave can get caught up in the application of those policies. Certainly it’s prudent for large employers such as mid- to large-sized municipalities and counties to consider these issues. This case reinforces the propriety of such policies, but also serves as a reminder that it’s important to have experienced attorneys draft such policies carefully so as to avoid an inadvertent conflict with the provisions of FMLA or any other substantive employment-rights law. 

Related case law: Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997) (on collective bargaining agreements and the FMLA).

Rendon v. Transportation Security Administration, No. 04-4229 (6th Cir., filed 9/22/2005) (link to court’s own site, PDF file format), holds that 49 CFR §1540.109 is not impermissibly vague or overbroad, and thus does not fail Constitutional muster, nor did it in this case violate the petitioner’s First Amendment rights to cuss like a sailor.

Facts: In July 2002, the petitioner was attempting to pass through screening at Cleveland’s Hopkins International Airport. The screener, an employee of a privately contracted company (nb: this was during the period of time preceding TSA’s takeover of airport security screening as a federal function with its own workforce), noted that Mr. Rendon had set off the metal detector. Mr. Rendon mused aloud that his watch had probably been the culprit. He took off the watch and attempted to walk back through. However, the screener informed Mr. Rendon that traveling back through the detector was not permitted – Mr. Rendon would have to be hand-wanded to pass screening. Mr. Rendon became agitated, and questioned the rule. Upon being informed it was the policy of the airport and the company providing the screening, Mr. Rendon pronounced that this was "bullshit." While waiting for the employee with the hand-held wand to process him, he grew anxious about missing his flight, and, according to the court:

also more belligerent toward the screener, Pindroh. For instance, Rendon admits exclaiming, while Pindroh attempted to continue screening those walking through the metal detector, “shit, man, can’t you get someone over here.” The government introduced three witnesses who all testified that Rendon loudly exclaimed, after being informed that he could not walk back through the metal-detector and while he was waiting to be hand-wanded, that “this was fucking bullshit.” Pindroh replied, “Mr. Rendon, you do not have to use profanity towards me.” Rendon then told Pindroh that if profanity bothered him, he was in the wrong line of work and that he should consider living in a bubble. Moreover, testimony was introduced that Rendon loudly replied to Pindroh that he had a First Amendment right to say what he wanted.

Rendon, page 2. The screener then had to close his line and get his supervisor to assist him. Thereafter, a law enforcement officer removed Mr. Rendon from the area.

Procedural Posture of Case: Rendon was served a Notice of Proposed Civil Penalty by TSA about one year later. The penalty was $700, and was attributed to a violation of 49 CFR §1540.109 (interfering with screening personnel – click here for TOC page with formats in TXT and PDF). The determination was fought at the ALJ level, and Rendon appealed to a TSA Decision Maker, who concurred with the ALJ’s upholding of the penalty assessment. Mr. Rendon’s appeal to the Sixth Circuit followed.

Sixth Circuit’s Analysis: Rendon claimed that §1540.109, as applied to him, was an impermissible content-based restriction on protected speech. He based this claim on the following logic: "Good-faith" questions are specifically allowed to be asked of screening personnel by passengers (under 67 Fed. Reg. 8340, 8344 (2/22/02) – to access, go here, click on "Page Number" under "1994 through 2005" heading, select 2002 and enter 8340, then "submit" – phew), but such questioning will likewise require the screener’s attention be diverted from his or her functions to respond. Whereas his cursing will lead to an assessed penalty, the questioner asking a "good faith" question gets no penalty, though the effect – diversion of attention – is the same. Therefore, he is being penalized solely on account of the content of his speech (his choice of profanities).

The court correctly notes (eventually) that Mr. Rendon was not, in fact, assessed a penalty because he preferred the use of profanities related to excrement. Rather, the penalty flowed from the ever-increasing disturbance he caused. In other words (my own), he could have stood to the side and led the crowd in halftime cheers complete with splits and pompoms; if the effect was the same – the screener has to close the line and get help – then the penalty flows.  Ergo, no content-awareness. Ergo, no Constitutional infirmity.

The Court did note an (in my humble opinion) erroneous point in regards to Rendon’s "good faith questioner" comparison. The Court stated that the good-faith questioner, essentially, is per se not interfering, because of the explicit permission in the final rule. But it’s not too hard to imagine an instance in which an annoyingly upbeat and excited individual could present "good faith" question after "good faith" question, and interfere with the screener’s duties. The exception is not worded as an exclusionary definition, but rather states "this rule does not prevent …" I think the result is correct, in the final analysis – the screeners and their functions are protected, and the smooth flow of passengers through your terminal is enhanced – but I’m not swayed by this distinction.

Other case law of note: Ward v. Rock Against Racism, 491 U.S. 781 (1989), holding that "a content-neutral regulation that has an incidental effet on speech is upheld so long as it is narrowly tailored to advance a substantial government interest."