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Aviation Case Law Update for 2011

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*** So, this is what has been taking me away from the blog for the last month, I have been putting together this presentation for a conference. I made the presentation last week without a hitch. I hope you enjoy the materials. I am still working on how to upload the slides.***

Aviation Case Law Update

Presented at the 38th Annual Pacific Northwest Aviation Law and Insurance Seminar1

September 16, 2011

 Casey DuBose is a third-year student at Seattle University School of Law, where he is the Business Editor for the Seattle Journal of Environmental Law. He is currently serving as a Law Clerk extern to the Honorable John C. Coughenour at the U.S. District Court for the Western District of Washington. He is a commercial pilot and flight instructor in single-engine aircraft. Upon graduation, he hopes to pursue a career that melds his three great interests - Chinese, Aviation, and Law. Prior to attending law school, Casey earned a B.A. in Philosophy from Brigham Young University with a minor in Mandarin Chinese. He also worked as a flight instructor and charter pilot at the Diamond Flight Center in Spanish Fork, Utah.

More information about Casey may be found at http://www.duchineselaw.com.

 

Table of Cases

Air Carrier Access Act 
Mesaba Aviation, Inc Violations of 14 CFR Part 382, 2011 WL 1344611 
Summers v. Delta Airlines, Inc., 10-CV-05730-LHK, 2011 WL 1299360 (N.D. Cal. Apr. 4, 2011) 
Airline Deregulation Act 
In re Korean Air Lines Co., Ltd., 642 F.3d 685 (9th Cir. 2011) 
DiFiore v. Am. Airlines, Inc., 646 F.3d 81 (1st Cir. 2011) 
Insurance 
Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422 (9th Cir. 2011) 
Federal Preemption 
US Airways, Inc. v. O'Donnell, 627 F.3d 1318 (10th Cir. 2010) 
Sikkelee v. Precision Airmotive Corp., 731 F. Supp. 2d 429 (M.D. Pa. 2010) 
Montreal Convention
Chubb Ins. Co. of Europe S.A. v. Menlo Worldwide Forwarding, Inc., 634 F.3d 1023 (9th Cir. 2011) cert. denied 
Eli Lilly & Co. v. Air Exp. Int'l USA, Inc., 615 F.3d 1305 (11th Cir. 2010) 
Phifer v. Icelandair, 09-56858, 2011 WL 3076393 (9th Cir. July 26, 2011) 
Forum Non Conveniens 
Delta Air Lines, Inc. v. Chimet, S.p.A., 619 F.3d 288 (3d Cir. 2010) 
Death on the High Seas Act 
Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986 (9th Cir. 2011) 
Pilot Certification and Regulation 
Manin v. Nat'l Transp. Safety Bd., 627 F.3d 1239 (D.C. Cir. 2011) 
Dickson v. Nat'l Transp. Safety Bd., 639 F.3d 539 (D.C. Cir. 2011) 
Avia Dynamics, Inc. v. F.A.A., 641 F.3d 515 (D.C. Cir. 2011) 
FAA Regulation of Airports 
City of Santa Monica v. F.A.A., 631 F.3d 550, 551 (D.C. Cir. 2011) 
Barnes v. U.S. Dep't of Transp., 10-70718, 2011 WL 3715694 (9th Cir. Aug. 25, 2011) 
Casciani v. Nesbitt, 392 F. App'x. 887 (2d Cir. 2010) cert. denied 
Government Contractor Defense 
Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259 (9th Cir. 2010) 
Getz v. The Boeing Co., 10-15284, 2011 WL 3275957 (9th Cir. Aug. 2, 2011) 
Federal Tort Claims Act 
LeGrande v. United States, 774 F. Supp. 2d 910 (N.D. Ill. 2011) 
Turner v. United States, 736 F. Supp. 2d 980 (M.D.N.C. 2010) 
General Aviation Revitalization Act 
Burton v. Twin Commander Aircraft LLC, 171 Wash. 2d 204, 254 P.3d 778 (2011) 
Crouch v. Honeywell Int'l, Inc., 3:07-CV-638-S, 2010 WL 4449222 (W.D. Ky. Nov. 1, 2010) 
Duty to Warn 
Otoski v. Avidyne Corporation, 2010 WL Otoski v. Avidyne Corp., (D. Or. Oct. 6, 2010)
Glorvigen v. Cirrus Design Corp., 796 N.W.2d 541 (Minn. Ct. App. 2011) 
Isakson v. WSI Corp., 771 F. Supp. 2d 1257 (W.D. Wash. 2011) 
Notable Airline Crashes 
Turkish Airlines Crash 
Koral v. Boeing Co., 628 F.3d 945 (7th Cir. 2011) 
Air France Crash 
In re Air Crash Over Mid-Atl. on June 1, 2009, 760 F. Supp. 2d 832 (N.D. Cal. 2010) 
Spanair Crash 
In re Air Crash at Madrid, Spain, on August 20, 2008, 2:10-ML-02135 GAF, 2011 WL 1058452 (C.D. Cal. Mar. 22, 2011). 
Transactions 
Flight Options, LLC v. State, Dept. of Revenue, 84207-8, 2011 WL 3717001 (Wash. Aug. 25, 2011) 26
Interesting Cases 
Azpitarte v. King County, C10-1186Z, 2011 WL 2518916 (W.D. Wash. June 23, 2011) 
Nat'l Air Traffic Controllers Ass'n v. Sec'y of Dept. of Transp., 10-3171, 2011 WL 3569957 (6th Cir. Aug. 16, 2011) 
United States v. Armstrong, 397 F. App'x. 466 (10th Cir. 2010) 

 

Check out the details of each case after the break!

 

 

 

 

 

 

 

 

Air Carrier Access Act

Mesaba Aviation, Inc Violations of 14 CFR Part 382, 2011 WL 1344611

A regional airline violated the disability-related services provisions of the ACCA, even when the services were provide by contractors from the parent airline.

Under the Air Carrier Access Act, carriers must provide passengers with disability-related assistance in enplaning and deplaning aircraft. This assistance includes, as needed, the provision of services and personnel and the use of wheelchairs, ramps, or mechanical lifts. The act prohibits carriers from leaving passengers who are not independently mobile unattended in a ground wheelchair, boarding wheelchair, or other device for more than 30 minutes.

The DOT investigated disability-related complaints Mesaba received from passengers in 2007 and 2008. The records indicated a significant number of apparent violations

Mesaba explained that the complaints involved services provided to passengers ticketed on Northwest and Delta. Mesaba states that it relied exclusively on Northwest/Delta and their wheelchair service contractors to meet the regulatory responsibility for terminal wheelchair assistance when it delivered disabled passenger to the regional hubs.

The DOT considered the information provided by Mesaba and concluded that enforcement action was warranted. In order to avoid litigation, Mesaba agreed to settle the matter with the Enforcement Office for $125,000 in civil penalties. Further, Mesaba stated that it recognizes its responsibilities to the disabled passengers it transports, and that in the future it will focus additional management resources and will improve internal controls and processes to better ensure those responsibilities and standards are met.

Summers v. Delta Airlines, Inc., 10-CV-05730-LHK, 2011 WL 1299360 (N.D. Cal. Apr. 4, 2011)

A passenger's negligence claims, to extent they rested upon carrier's failure to provide her assistance in deplaning, were preempted by ACAA; however, to extent they rested upon carrier's failure to warn of dangerous conditions, they were not preempted by ACAA.

Plaintiff passenger brought action against airline carriers, alleging claims arising when she sustained injuries while attempting to disembark from airplane via air-stairs. Carriers moved to dismiss on the basis of federal preemption.

Plaintiff's Complaint alleged that a large gap or step between the plane and the platform constituted a dangerous condition for the Plaintiff that presented a danger independent of any need for assistance or accommodation specific to Plaintiff or her physical disabilities. The Court found that to the extent that Plaintiff's claims were based on failure to warn of a dangerous condition and failure to take steps to cure the dangerous condition, the ACAA does not appear to have a preemptive effect. Since a non-disabled passenger would be able to sue for injuries caused by a dangerously large gap between the plane and the stair platform. The Court determined that unless the ACAA specifically regulates such hazards, it would be inequitable and legally insupportable to bar Plaintiff from bringing such a claim simply because she is disabled.

Airline Deregulation Act

In re Korean Air Lines Co., Ltd., 642 F.3d 685 (9th Cir. 2011)

The ADA provision prohibiting state regulation related to price, route, or service of “air carrier” preempts state regulation of foreign as well as domestic air carriers - despite ambiguous statutory definitions of “air carrier” and “foreign air carrier.”

Plaintiffs alleged that Defendants, which are foreign airlines, illegally conspired to impose a surcharge on passenger airfares. The initial complaint sought damages and injunctive relief under the Sherman Act, and under California antitrust and unfair competition laws.

Defendants moved to dismiss because the ADA preempted the state law claims. The ADA provides that a “[s]tate ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.”

Plaintiffs contended that Congress statutorily defined “air carrier” and “foreign air carrier” as mutually exclusive terms and, therefore, Congress's use of the term “air carrier” in the preemption provision means that foreign air carriers are excluded from its reach. Plaintiffs argued that Congress intended the terms “air carrier” and “foreign air carrier” to refer to different entities and that Congress consistently employed those terms for distinct uses.

The Court reviewed the applicable case law that supported the determination that state law claims were preempted. Although few courts have explicitly discussed the issue, numerous courts—including the Supreme Court—have applied the provision to foreign carriers without reservation. Further, the legislative history behind the ADA demonstrated that Congress intended to preserve its authority to regulate the airline industry by prohibiting states from regulating all air carriers, both domestic and foreign. Finally, the Court reasoned that if it failed to extend the ADA preclusions to foreign carriers, it would increase the burden on foreign air carriers, which would violate treaty obligations mandating nondiscrimination and increase the risk that U.S.-based airlines would encounter retaliatory barriers when they sold tickets abroad.

 

DiFiore v. Am. Airlines, Inc., 646 F.3d 81 (1st Cir. 2011)

Airline Deregulation Act, which prohibited states from enacting laws which “related to” air carrier prices, routes, or services, preempted a Massachusetts Tip Law. that directly “related to” how airline services were performed, since it attempted to prohibit airlines from instituting $2 service charge for bags checked at airport curb and law attempted to control how prices for curbside baggage checks were displayed to customers by requiring disclaimer on signage explaining that gratuity was not included in price.

In September 2005, American began charging passengers a fee of $2 for each bag checked with the Skycaps at Boston's Logan Airport. Arguing that passengers mistook the fee for a mandatory gratuity, several Skycaps brought suit against American.

Plaintiffs complained that American's curbside check-in fee violated a Massachusetts statute governing tips; that the airline's conduct created liability under state common law as tortious interference with advantageous relations, unlawful conversion, and unjust enrichment; and that the skycaps were entitled to restitution under principles of quantum meruit. After a jury verdict, and a certified question to the Massachusetts Supreme Court, the final amended judgment gave the nine prevailing skycaps $333,464. American appealed on multiple grounds including the central federal preemption issue.

The Court highlighted the difficulty that comes from the key connector in the preemption statute—“related to” -- given that countless state laws have some relation to the operations of airlines and thus some potential effect on the prices charged or services provided.

The Court highlighted a set of circuit cases declining to preempt state anti-discrimination and retaliation laws, state prevailing wage laws, and negligence claims against airlines for injuries occurring during airline operations. These circuit cases confirmed the view that the Supreme Court would be unlikely to free airlines from most conventional common law claims for tort, from prevailing wage laws, and ordinary taxes applicable to other businesses even if such measures impacted airline operations.

Nevertheless, the Court concluded that three of the major Supreme Court cases endorsed preemption and read the preemption language broadly. The state laws preempted in those cases involved deceptive advertising, alleged consumer abuse, and protection of health, which countered Plaintiffs' position that the Court should presume strongly against preempting in areas historically occupied by state law.

In applying the ADA to the tips law, the Court concluded that the tips law did more than simply regulate the employment relationship between the skycaps and the airline. Unlike the cited circuit cases, the tips law had a direct connection to air carrier prices and services. The Court reasoned that American's conduct in arranging for transportation of bags at curbside into the airline terminal en route to the loading facilities is itself a part of the “service” referred to in the federal statute, and the airline's “price” includes charges for such ancillary services as well as the flight itself. To avoid violating the state law would require American to change the way the service were provided or advertised.

Therefore, the tips law as applied directly regulated how an airline service was performed and how its price was displayed to customers—not merely, how the airline behaved as an employer or proprietor.

Insurance

Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422 (9th Cir. 2011)

Federal courts uniformly enforce pilot warranties in aviation insurance policies and for good reason; pilot qualifications and experience are obviously factors bearing directly on the risk the insurer is underwriting.

Plaintiff Trishan Air purchased an aviation insurance policy from Defendant Federal Insurance Co. After an accident involving one of Trishan's corporate jets, Trishan filed a claim with Federal. Federal denied coverage because the Second-in-command had not undergone the training mandated by the policy's pilot warranty.

The Federal policy contained “commercial flight school and simulator training requirements” for “the pilot(s)” of the aircraft, including the SIC. Trishan’s Chief Pilot was unaware at the time of the accident of Federal’s policy restriction and approved a SIC who had not had simulator training in the aircraft.

Plaintiff argued that the SIC had extensive training, “45 years and 15,000 hours of flight experience with 13,000 hours in jet aircraft” and maintained that the simulator training would not have provided the SIC with any “new information or training that would have either alerted [him] to any condition or contributed to any of the actions that [he] took.” Plaintiff further argued that the non-compliance with the training schedule was an inadvertent, good-faith human error and that summary judgment was improper because, under California law, it was not required to strictly comply with the pilot warranty to receive coverage.

The Court found that Trishan's failure to comply with any aspect of the required training for co-pilots completely undermined Federal's ability to negotiate and implement the terms of its policies. It concluded that finding otherwise would permit an insured to universally assert that only substitute performance, based on the insured's subjective selection, would be necessary to receive coverage, which nullified any specific requirement that an insurer relies upon in assuming the covered risk, and generated uncertainty on the insurer's part regarding compliance.

Federal Preemption

US Airways, Inc. v. O'Donnell, 627 F.3d 1318 (10th Cir. 2010)

New Mexico's scheme for regulating the provision of alcoholic beverage services, as applied to airline passengers, necessarily implicated the field of airline safety for preemption purposes; New Mexico Liquor Control Act's regulatory scheme extended beyond the field of airline alcoholic beverage services, specifically, prescribing training and certification requirements for flight attendants and other airline crew members serving alcoholic beverages on aircraft.

Sikkelee v. Precision Airmotive Corp., 731 F. Supp. 2d 429 (M.D. Pa. 2010)

Claims brought under Pennsylvania law against engine and carburetor manufacturers, stemming from death of pilot in aircraft accident, occupied same field of aviation safety regulation as the Federal Aviation Act, and thus were federally preempted, to extent that the claims asserted duties under state common-law standards of care.

The aircraft lost power as a result of an engine fuel delivery system malfunction shortly after takeoff resulting in a crash that killed the pilot. Plaintiff maintained that the Carburetor and Textron Defendants were aware of numerous problems and defects with the screws and locking mechanism that attached the recently-overhauled carburetor together and that these Defendants failed to meet industry standards by failing to warn of these problems or provide instructions to maintain their safety.

Defendants maintained that because the Federal Aviation Act (“FAA”) and other corresponding aviation-legislation create uniform and exclusive standards for the entire field of aviation safety and because federal regulation of aviation safety is pervasive, Congress intended to preempt the entire field. Defendants noted that United States Court of Appeals for the Third Circuit in Abdullah found field-preemption in the entire field of aviation safety for those same reasons.

Plaintiff argued that Abdullah did not apply to this general aviation case because, unlike the commercial aviation case at bar in Abdullah, there are no federal regulations that apply to the specific carburetor in question. Plaintiff questioned the holding in Abdullah because it did not consider GARA and was decided before the September 11th Victim Compensation Fund of 2001 Amendment to the FAA that expressly preserved state tort-law standards.

In a conclusion that was oddly lacking in analysis, the Court concluded no matter how compelling the Plaintiff's non-circuit examples were to the Court, those authorities were not controlling for the Court's purposes. Instead, the Court opted to enforce state of the law as articulated by the Third Circuit in Abdullah.

Montreal Convention

Chubb Ins. Co. of Europe S.A. v. Menlo Worldwide Forwarding, Inc., 634 F.3d 1023 (9th Cir. 2011) cert. denied

Shipper's third-party claim against international carrier of aircraft engine sought indemnification and contribution for sums shipper paid to insurer, rather than compensation for damages engine sustained during shipment, and thus Montreal Convention's two-year statute of limitations on “right to damages” in connection with international air cargo shipments did not apply to bar shipper's claim; shipper's claim was as a contracting carrier and premised on “right to recourse” rather than “right to damages.”

Insurance company “Chubb” sued UPS, seeking to recover the money that it had paid to the owner of an engine damaged in a shipment from Australia to LAX. The parties eventually reached a settlement under which UPS agreed to pay Chubb $80,000.

UPS filed a third-party complaint against Qantas, seeking indemnification and contribution for sums UPS had paid Chubb. The district court dismissed UPS's third-party complaint, reasoning that under Article 35 of the Montreal Convention, UPS's claims against Qantas were timely only if brought within two years of the damaged engine's arrival in Los Angeles. Because the claims were not brought within that period, the court held that they were barred and dismissed UPS's third-party complaint with prejudice.

The Court of Appeals reversed finding that the plain language of the Montreal Convention makes clear that actions for indemnification and contribution are not subject to Article 35's two-year statute of limitations.

Article 35 of the Montreal Convention states: “The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”

The Court found that while the “right to damages” is not defined in Article 35, its contours became clear when the Convention was read as a whole. Articles 17 to 19 of the Convention set forth the specific circumstances in which a carrier is “liable for damage” - for example, under Article 18(1), for “damage sustained in the event of the destruction or loss of, or damage to, cargo.”

The Court concluded that the “right to damages” referenced in Article 35 was limited to causes of action under Articles 17-19 of the Convention by which a passenger or consignor may hold a carrier liable for damage sustained to passengers, baggage, or cargo. As UPS did not seek compensation for damage sustained to the engine, it did not seek “rights to damages” under the Convention. Rather, UPS, as a contracting carrier, sought indemnification (and contribution) from Qantas, as an actual carrier, for the compensation it had already paid Chubb.

In support of the ruling, the court pointed to Article 37, entitled “Right of recourse against third parties,” which provides, “nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.” The Court reasoned that if Article 35 were construed to extinguish a carrier's “right of recourse” at the expiration of the specified two-year period, then the Convention would do precisely what Article 37 says it does not: “prejudice the question whether a person liable for damage has a right of recourse against any other person.”

Eli Lilly & Co. v. Air Exp. Int'l USA, Inc., 615 F.3d 1305 (11th Cir. 2010)

Parties did not intend under Florida law for liability provision of long-term service agreement to subject air waybill contracts to increased limits of liability, and thus Montreal Convention limited liability applied, where the long-term service agreement did not make any mention of Montreal Convention, predecessor Warsaw Convention, or to limits on air carrier liability imposed by law, face of air waybill contracts did not show that parties intended to incorporate terms of service agreement into those contracts.

Phifer v. Icelandair, 09-56858, 2011 WL 3076393 (9th Cir. July 26, 2011)

Plaintiff does not have to prove that an airline violated an FAA standard to establish that there was an “accident” under Article 17 of the Montreal Convention.

Plaintiff Phifer entered her assigned row on the Icelandair Flight, Phifer bent over, placed two carry-on bags under the seat in front of hers, stood up, and struck her head on an overhead television monitor, which was extended in the down position. Phifer collapsed and was assisted to her seat by her husband and an Icelandair flight attendant.

Phifer sued Icelandair in federal district court, alleging that Icelandair was liable for her injuries under Article 17 of the Montreal Convention, which establishes that air carriers are liable for accidents that occur to passengers while they are boarding, aboard, or disembarking aircraft.

The district court granted summary judgment on behalf of Icelandair because “even assuming a departure from [Icelandair's] own policies or, possibly, industry standards, [Phifer] ha[d] still not provided any evidence that [Icelandair]'s conduct was in violation of any FAA [Federal Aviation Administrative] requirements,” rendering any dispute “immaterial.”

The Court of Appeals found that it has never held that violation of FAA requirements was a prerequisite to suit under Article 17. It stated that FAA requirements may be relevant to the district court's “accident” analysis, they are not dispositive of it and that a per se rule requiring a regulatory violation would be improper.

Forum Non Conveniens

      1. Delta Air Lines, Inc. v. Chimet, S.p.A., 619 F.3d 288 (3d Cir. 2010)

Private and public interest factors weighed in favor of dismissal on forum non conveniens grounds of Delta’s action against an Italian Customer for a declaration that its liability for loss of cargo was limited under the Montreal Convention, because a factual dispute existed between waybill and a delivery receipt, and Italian witnesses who could provide testimony relevant to the dispute were beyond the United States' subpoena power.

Defendant Chimet shipped approximately 100 kilograms of pure platinum with Delta from Milan, Italy to Philadelphia, via Atlanta, Georgia. The shipment of platinum arrived in Philadelphia but was reported stolen before reaching its ultimate destination.

Delta filed a complaint in the District Court, seeking a declaration that its liability for this loss was limited pursuant to Article 22(3) of the Montreal Convention. The District Court granted Chimet's motion to dismiss the action on forum non conveniens grounds, concluding that critical documents, witnesses, and third parties relevant to the dispute would only be available in Italy and that the location of the alleged culpable conduct was in Italy. On appeal, Delta argued that the District Court failed to give sufficient weight to Pennsylvania's interest in the dispute.

The Third Circuit found that the circumstances under which the shipment of cargo was lost in Pennsylvania were not relevant to determining whether Delta's liability is limited under the Montreal Convention. The Court concluded that since the locus of the alleged culpable conduct was Italy, dismissal on forum non conveniens was warranted.

Death on the High Seas Act

      1. Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986 (9th Cir. 2011)

Presidential proclamation extending territorial waters of the United States to 12 nautical miles from shore did not alter the scope of the Death on the High Seas Act (DOHSA), which provided a federal statutory remedy for wrongful death “occurring on the high seas beyond 3 nautical miles from the shore of the United States;” Accordingly, state law claims of crewmen killed in a non-commercial helicopter crash 9.5 miles from shore were preempted by DOHSA.

In 2007, while performing training exercises from the USS Bonhomme Richard, a Navy helicopter lost control and crashed into the Pacific Ocean approximately 9.5 nautical miles off the coast of Catalina Island, California killing the three-person crew.

Plaintiff’s complaint asserted causes of action for strict products liability, negligence, failure to warn, breach of warranty, and wrongful death and survival under California law and general maritime law.

Defendant Sikorsky filed a Rule 12(c) motion for judgment on the pleadings, asserting that DOHSA preempts certain causes of action brought by Appellants because the accident occurred “on the high seas beyond three nautical miles from the shore of the United States.”

The district court issued a ruling granting Defendant’s motion, holding that DOHSA preempts the state law and general maritime causes of action for wrongful death. More specifically, the district court held that DOHSA applies to noncommercial aircraft accidents “beyond three nautical miles from shore,” and that Presidential Proclamation No. 5928, which extended the territorial sea of the United States from three to twelve nautical miles from shore, did nothing to alter DOHSA's applicability.

Because DOHSA has been held to preempt all other remedies for wrongful death occurring on the high seas, this issue is of considerable importance to future victims of accidents occurring in this area. Only one other circuit has squarely addressed the issue of DOHSA's applicability to this area. In the TWA Flight 800 Case, the Second Circuit held that “high seas” as used in DOHSA refers to those waters that lie beyond United States territorial waters, that is, international waters, and that Proclamation 5928, by extending U.S. territorial waters from three to twelve nautical miles from shore, effectively changed the inner-boundary of DOHSA's applicability to twelve nautical miles from shore.

The current version of DOHSA reads: “When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible.” 46 U.S.C. § 30302 (2006).

The Court disagreed with the Second Circuit. It reasoned that a plain reading of the statutory text lead to the conclusion that the boundary beyond which DOHSA applies remains at three nautical miles from U.S. shores. Although the statute also uses the term “high seas” to describe the scope of the enacted remedial scheme, the Court saw no indication that this term was meant to incorporate into the statute the independent and fluid political concept of U.S. territorial waters. Instead, it concluded that a more natural reading indicated that the term “high seas” was defined for purposes of the statute by the explicitly stated geographic boundary of “beyond three nautical miles” from shore.

Moreover, the Court remained doubtful that the President would have the authority to alter the remedial scheme set forth in DOHSA through a proclamation. It argued that while President has the authority to extend or contract the territorial sea pursuant to his constitutionally delegated power over foreign relations, the power to create and alter the scope of federally-created remedies for victims of wrongful acts, however, remained squarely within Congress.

Pilot Certification and Regulation

Manin v. Nat'l Transp. Safety Bd., 627 F.3d 1239 (D.C. Cir. 2011)

Board's unexplained departure from precedent in allowing consideration of a laches defense only in the context of the stale complaint rule was arbitrary and capricious, and Board's failure to adhere to its precedent requiring consideration of pilot's subjective understanding of questions on a medical certificate application rendered its action arbitrary and capricious.

FAA discovered an airman's two disorderly conduct convictions, which had not been reported on the airman's most recent FAA medical application. FAA issued an emergency order immediately revoking his flight certificates and his first class airman medical certificate. In the airman's answer, he asserted the affirmative defenses that the complaint was stale under NTSB regulations and that the equitable doctrine of laches applied. He also asserted that he “belie[ved] that the disorderly charge was a minor summary offense, [and] would not have to be reported.” Laches is an equitable defense that applies where there is (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.

The Board held that the stale complaint rule was inapplicable because under Board precedent an allegation of intentional falsification amounts to an allegation of a lack of qualifications. Stating that it had long held that the doctrine of laches is relevant to Board cases only in the context of the stale complaint rule the Board also rejected Manin's laches defense.

FAA subsequently acknowledged that the Board's statement describing the “long held” limitation on the applicability of the doctrine of laches was simply not accurate. Board case law establishes that the laches defense may be available even when the stale complaint rule is inapplicable. The Court found that when an agency departs from its prior precedent without explanation, as the NTSB did here, its judgment cannot be upheld. Because the NTSB incorrectly construed its own case law as allowing consideration of a laches defense only in the context of the stale complaint rule, and rejected the airman's assertion of laches on that basis, the Court remanded to the agency for reconsideration of the airman's defense.

Dickson v. Nat'l Transp. Safety Bd., 639 F.3d 539 (D.C. Cir. 2011)

Substantial evidence supported NTSB's decision affirming FAA's denial of application for a first-class airman medical certificate; Board-certified neurologist opined that applicant had experienced a generalized seizure in London and a series of complex partial seizures during training flights, and manager of the Medical Appeals Branch of the FAA's Office of Aerospace Medicine testified that applicant offered no satisfactory medical explanation for any disturbance of consciousness.

Avia Dynamics, Inc. v. F.A.A., 641 F.3d 515 (D.C. Cir. 2011)

Sixty-day deadline for any “person disclosing a substantial interest in an order” issued by Federal Aviation Administration (FAA) to petition for judicial review began to run on date order was officially made public, such as by posting “Unapproved Parts Notification” (UPN) on FAA's website on page dedicated to “Suspected Unapproved Parts” (SUP) Program information; thus, lack of actual notice of UPN posting did not delay start of 60-day filing period.

FAA Regulation of Airports

City of Santa Monica v. F.A.A., 631 F.3d 550, 551 (D.C. Cir. 2011)

FAA did not act arbitrarily or capriciously when it concluded that ordinance banning Category C and D aircraft from operating at municipal airport was contrary to city's obligation to federal government under grant to make airport “available for public use on fair and reasonable terms and without unjust discrimination, to all types, kinds, and classes of aeronautical uses” with the exception of prohibiting certain types of aircraft if “such action is necessary for the safe operation of the airport.

The City of Santa Monica petitioned the court to review the FAA's decision concluding that Petitioner's ordinance banning certain categories of aircraft from operating at the Santa Monica Municipal Airport (“SMO”) violates Petitioner's contractual obligations to the federal government.

Petitioner claimed that it was arbitrary and capricious for the FAA to conclude that Petitioner was failing to make SMO available for use on “fair and reasonable terms and without unjust discrimination, to all types, kinds, and classes of aeronautical use” because the FAA ignored evidence in the record, acted inconsistently with the its own policies and prior decisions, and failed to state a rational connection between the evidence and its conclusion.

The Court found that based upon the four intermediate findings by the FAA -- (1) Category C and D aircraft could operate safely at SMO despite the lack of runway safety areas; (2) Category C and D aircraft were less likely to be involved in an overrun than Category A and B aircraft; (3) in the unlikely event of an overrun by a Category C or D aircraft, it was very unlikely that the aircraft would reach the neighborhoods beyond the SMO runway; and (4) the risks associated with overruns and undershoots at SMO by Category C and D aircraft could be mitigated without implementing a total ban and without reducing the utility of the runway – the decision to overturn the ban was not arbitrary and capricious.

Barnes v. U.S. Dep't of Transp., 10-70718, 2011 WL 3715694 (9th Cir. Aug. 25, 2011)

Agencies' failure to discuss the environmental impact of indirect effects of increased demand for aviation activities due to increased capacity was a flaw so obvious that there was no need for petitioners to point it out specifically in order to preserve their ability to challenge environmental assessment (EA) for the proposed construction of airport runway under National Environmental Policy Act (NEPA) on such ground.

Casciani v. Nesbitt, 392 F. App'x. 887 (2d Cir. 2010) cert. denied

Helicopter owner was not subject to selective enforcement of town ordinance prohibiting operation of private aircraft and airports within town, in violation of equal protection, where ordinance was generally applicable and was never enforced against either owner or the individuals to which he would compare himself.

Injuries from Operation of Aircraft

Government Contractor Defense

      1. Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259 (9th Cir. 2010)

Government contractor defense did not confer absolute or qualified immunity on government contractor whose predecessor sold mortar cartridge that prematurely exploded during live-fire Army training exercise, and thus district court order denying contractor's motion for summary judgment on basis of government contractor defense was not immediately appealable under collateral order doctrine, since court denied summary judgment on basis of disputed issue of material fact as to whether cause of explosion was double loading of cartridges, defect in cartridge at manufacturing stage, or some other cause.

The action arose from the premature explosion of a mortar cartridge manufactured by General Dynamics during an army training exercise in Hawaii. Soldiers in the training detail brought suit against General Dynamics alleging products liability and negligence claims under Hawaii law. General Dynamics moved for summary judgment on the merits of the Plaintiffs' claims and also on government contractor defense. The district court denied both motions, holding that a genuine issue of material fact as to what caused the explosion precluded summary judgment.

General Dynamics appealed challenging the portion of the district court's order denying summary judgment on the basis of the government contractor defense. General Dynamics contended that the government contractor defense confers immunity from suit and that the denial of summary judgment may be reviewed immediately under the collateral order doctrine.

General Dynamics framed the district court's order as a denial of its government contractor defense, and therefore as a denial of immunity from suit, rather than as a denial of summary judgment based on a disputed issue of material fact. Framed this way, General Dynamics contended that it had established each of the elements of the government contractor defense and, therefore, the district court erred by denying it immunity. It also asserts that it has satisfied each of the three elements allowing for an interlocutory appeal under the collateral order doctrine. The Court disagreed and held that the government contractor defense was not a grant of immunity and since the district court denied summary judgment on the basis of a disputed issue of material fact, the Court dismissed the appeal.

      1. Getz v. The Boeing Co., 10-15284, 2011 WL 3275957 (9th Cir. Aug. 2, 2011)

United States Army approved reasonably precise specifications for design of helicopter engine control system and on-board computer, as required for state-law claims to be barred by government contractor defense, where contractor had provided Army personnel with lengthy and detailed design specifications describing both control system as whole and on-board computer, and Army carefully scrutinized, tested, and made necessary changes to those specifications before approving them; although contractor had some discretion, that discretion was limited to “implementation” of specific design requirements contained within approved specifications.

Failure of helicopter to maintain flight in adverse weather conditions as specified in government contract did not deprive contractor of government contractor defense to bar state-law claims, since non-conformance with specification, as required to preclude that defense, meant more than that ultimate design feature did not achieve its intended goal.

Federal Tort Claims Act

      1. LeGrande v. United States, 774 F. Supp. 2d 910 (N.D. Ill. 2011)

Federal Aviation Administration (FAA) air traffic controllers in contact with commercial passenger jet that experienced severe turbulence, allegedly resulting in injuries to flight attendant, did not have a duty under Ohio law to disseminate Meteorological Impact Statements (MIS), which forecasted that frequent moderate to isolated severe turbulence might develop over a large portion of the air traffic control center's airspace during a twelve hour time span; the forecasts, issued by National Weather Service (NWS) meteorologist, were not created with the intention that they be disseminated to controllers or to pilots, nor did they contain information specific enough to be useful to pilots, and a reasonably prudent air traffic controller would not have foreseen that failing to disseminate the information contained in the statements to the jet's pilots was likely to cause any harm.

      1. Turner v. United States, 736 F. Supp. 2d 980 (M.D.N.C. 2010)

After ATC's radar services were terminated, and ATC's duty to pilots of twin turbo-propeller aircraft and its occupants to monitor location or progress of craft or provide safety alerts upon minimum safety altitude warning (MSAW) ceased, under Federal Aviation Administration (FAA) statutes and Virginia common law, once aircraft's advisory frequency was changed from ATC system to aeronautical advisory station (UNICOM); pilot had no reason to continue to rely on ATC monitoring after frequency change to UNICOM.

N501RH, a corporate twin turbo-prop aircraft, crashed into Bull Mountain, Virginia, which was obscured by clouds, approximately ten nautical miles past the approach end of Runway 30 of the Blue Ridge Airport (MVT). The aircraft was on an IFR flight plan. Because MTV lacked an ATC tower, the controller who assisted N501RH was located at the TRACON.

Plaintiffs pointed to several points in the flight of N501RH where they claim ATC was negligent. However, the determination of negligence with respect to the United States arose from an atypical factual setting. The alleged acts or omissions for the most part occurred after ATC directed N501RH to change frequency to UNICOM, at which point radar services automatically terminated. Plaintiffs argued that ATC had a duty to continue to monitor N501RH thereafter because the ATC was aware that the aircraft was higher than normal on approach when he authorized the frequency change and terminated radar services. Plaintiffs also argued that the ATC had a duty to warn as N501RH continued its approach past the MSAW and LA alerts.

Plaintiffs contend that a reasonable air traffic controller would have investigated the MSAW alarm and attempted to contact N501RH. The Government maintained that controllers had no duty to monitor N501RH after terminating radar services. The Government argued that a safety alert is a radar service and, once radar services to N501RH were terminated, air traffic controllers owed no duty to evaluate the source of the MSAW, much less to warn about it.

The Court found that while a controller had no duty to monitor an aircraft after a frequency change, the court rejected the Government's argument that a controller has no duty to investigate an MSAW alarm simply because radar services were terminated to that aircraft. Nevertheless, because the radar target was on coast mode, which did not show altitude or heading of the aircraft, and the location of aircraft was on the approximate course of a circle-to-land approach, the Court found that the ATC acted reasonably. Additionally, the Court found that even if the controller was negligent a number of superseding and intermediate causes from pilot error barred claims against the ATC.

General Aviation Revitalization Act

      1. Burton v. Twin Commander Aircraft LLC, 171 Wash. 2d 204, 254 P.3d 778 (2011)

Current type certificate holder for aircraft model was considered a “manufacturer” under the General Aviation Revitalization Act of 1994 (GARA) because it assumed the obligations of a manufacturer and is entitled to the same protection of the statute of repose.

This action arose out of an airplane crash in Mexico, in which seven people died. The personal representative of the decedents' estates brought wrongful death actions against Twin Commander. Because Twin Commander did not actually manufacture the aircraft, Plaintiff argued that it was not a “manufacturer” within the meaning of GARA.

Twin Commander maintained that since it is a type certificate holder and therefore subject to all of the duties of an original manufacturer, as a matter of law it should be considered a “manufacturer” for purposes of GARA. The trial court granted summary judgment in favor of Twin Commander on the ground that the statute of repose set forth in GARA bars the actions. The Court of Appeals reversed concluding that whether Twin Commander is a “manufacturer” poses a factual question because Twin Commander had not established that it was a successor manufacturer that had assumed the assets and liabilities of the original manufacturer.

The Supreme Court of Washington disagreed with the Court of Appeals and found the meaning of “manufacturer” for purposes of the act was a question of law.

The Court relied heavily on reasoning in a previous case that found that GARA applied to shield a successor manufacturer who had taken over the duties and obligations of the original manufacturer by purchasing a product line and becoming the holder of a parts manufacturer approval (PMA).

The Court found that the responsibilities of a PMA holder were analogous to those of a type certificate holder. For example, a PMA holder was subject to the requirement that it report information to the FAA about any failure, malfunction, or defect of any part of the aircraft posing a risk to flight safety. As holder of the type certificate, Twin Commander has exclusive authority to manufacture the aircraft and is the only entity required to report failures, defects, and malfunctions. The Court found that since the type certificate holder assumed the obligations of a manufacturer and it was entitled to the same protection under the statute of repose.

Crouch v. Honeywell Int'l, Inc., 3:07-CV-638-S, 2010 WL 4449222 (W.D. Ky. Nov. 1, 2010)

A maintenance manual is not a part of the engine for GARA purposes, but an engine company was acting in its capacity as an engine manufacturer when it produced the overhaul manual.

The Court reviewed an engine manufacturer's maintenance manual under GARA. The Court reasoned that while a maintenance manual may technically be a separate product, it is a separate product created by an engine manufacturer in compliance with the law. Since the engine manufacturer was acting within the scope of its legal obligations as a manufacturer when it produced the manual, the engine manufacturer was considered a “manufacturer” for GARA purposes.

Nevertheless, the Court held that the manual was not a part of the engine for GARA purposes. The Court characterized the manual as a required accessory that the engine manufacturer must produce in order to make a safe and legal product, but not, a “part” under GARA such that its modification would restart the statute of repose.

Duty to Warn

      1. Otoski v. Avidyne Corporation, 2010 WL Otoski v. Avidyne Corp., (D. Or. Oct. 6, 2010)

Cessna as successor to the Columbia Bankruptcy did not have an independent duty to warn of allegedly defective avionics equipment without a showing of evidence that the Cessna had acquired new information on the defects.

In 2008, a Columbia 400 aircraft manufactured by Columbia Aircraft Manufacturing Company crashed near the Portland International Airport, killing the pilot, Dr. Richard E. Otoski. Prior to the crash, Columbia went into bankruptcy, sold its assets to Cessna, and was liquidated.

Cessna asserted that it was entitled to summary judgment because Otoski's suit for negligent failure to warn was expressly barred by the bankruptcy court's Order due to Cessna's status as a “free and clear” asset purchaser. Moreover, because Cessna did not manufacture the aircraft or the allegedly defective EFIS avionics package, there was no basis under Oregon law to impose a duty to warn, either as a successor to Columbia or under an independent “duty to warn” theory.

Otoski argued that her claim was based on an independent duty to warn claim arising out of Cessna's post-petition conduct. The complaint alleged that Cessna would have been aware of information relating to the allegedly defective EFIS avionics package as part of its purchase of the Columbia aircraft product line, by way of Columbia documents, correspondence, and memoranda, discussions with Columbia personnel, and from one or more lawsuits that were pending at the time of the sale.

The court found that none of the Plaintiff’s allegations established that Cessna acquired any new information relating to the allegedly defective EFIS avionics package after the purchase. The record did not indicate that there were any new service bulletins issued after the purchase that related to the defective EFIS avionics package, or that Columbia somehow failed to properly notify the owners at the time it initially received the service bulletin in a way that would require Cessna to re-notify the owners.

      1. Glorvigen v. Cirrus Design Corp., 796 N.W.2d 541 (Minn. Ct. App. 2011)

To the extent that manufacturer had duty to warn, such duty did not impose an obligation to provide transition training to purchaser of airplane, and allegation that manufacturer breached a duty to provide adequate flight training was barred by educational malpractice doctrine. (This case is currently pending before the Minnesota Supreme Court)

Plaintiff pilot lost control of and crashed his newly purchased Cirrus SR22 after encountering “IMC-like” conditions. Although FAA regulations did not require Cirrus to offer training, Cirrus included two days of “transition training” in the purchase price of the SR22. Transition training is a specialized type of training that is provided when a licensed pilot learns to fly a new type of plane. The subsequent complaint claimed that Cirrus undertook a duty to provide Plaintiff with flight training and that Cirrus breached an implied warranty of merchantability by omitting a flight lesson regarding recovery from VFR into IMC conditions.

The case was tried before a jury. At the close of the Plaintiff case in chief, Cirrus moved for JMOL on several grounds. It argued that they did not owe the Plaintiff a legal duty because the negligence claims were barred under the educational-malpractice doctrine and that there was insufficient nonspeculative evidence that lack of training caused the crash. The district court denied appellants motion for JMOL. The district court entered judgment against Cirrus who appealed.

Cirrus argued that the negligence claims sound in educational malpractice and are therefore barred as a matter of law and that the district court improperly created a new cause of action for negligent performance of contract that merged contract and tort duties and redefined negligence to exclude reasonable care.

The Court found any liability based on Cirrus’s failure to provide adequate transition training could not be sustained under a product-liability theory. Although Plaintiff may have needed transition training to safely pilot the SR22, it did not follow that Cirrus had a duty to provide the training. The Plaintiff’s contention that the duty to warn by providing adequate instructions for safe use includes an obligation to train the end user to proficiency was unprecedented in state law. The Court therefore held that to the extent that Cirrus had a duty to warn, the duty did not include the provision of transition training. Further, because the remaining claims challenged the effectiveness of the training Plaintiff received from Cirrus, the claims sounded in educational malpractice and were barred as a matter of law.

      1. Isakson v. WSI Corp., 771 F. Supp. 2d 1257 (W.D. Wash. 2011)

Under Washington law, contract between weather forecasting service and airline for weather data did not create duty of care on part of forecasting service to airline's flight attendants, as required for service to be liable for flight attendants' injuries when aircraft in which they were working experienced unforecasted turbulence; contract indicated that forecasting service “makes no representations with respect to the predictive value or accuracy of its weather forecasts,” and “shall not be responsible for errors,” contract did not mention third parties, and airline agreed to indemnify weather forecasting service for claims against it by third parties.

Under Washington law, weather forecasting service that provided allegedly inaccurate weather information to airline did not owe duty to come to aid of airline flight attendants who were injured by unexpected turbulence during flight, under rescue doctrine, since forecasting service did not create unreasonable risk of harm by providing inaccurate weather information to airline, or promise to rescue flight attendants from the dangers of hazardous weather; forecasting service promised only to provide regularly updated weather information to airline.

Notable Airline Crashes

Turkish Airlines Crash

      1. Koral v. Boeing Co., 628 F.3d 945 (7th Cir. 2011)

Removal of products liability actions against manufacturer of airplane that crashed in Netherlands was premature under Class Action Fairness Act's (CAFA) “mass action” provision, since plaintiffs' statement regarding number of trials actions would require was prediction rather than proposal for joint trial, even if plaintiffs' statement was request for joint trial it was made to state court from which actions were removed rather than district court in which suits were pending, and manufacturer's desire for joint trial could not support removal since proposal for joint trial could not be made by defendant.

Air France Crash

      1. In re Air Crash Over Mid-Atl. on June 1, 2009, 760 F. Supp. 2d 832 (N.D. Cal. 2010)

Pursuant to the Montreal Convention, district court had subject matter jurisdiction over action against airline to recover for the deaths of two Americans, but private and public interest factors weighed in favor of dismissal on forum non conveniens grounds.

The Court found that the decedents' “principal and permanent residence,” within meaning of the Montreal Convention, was in the United States, and thus district court had subject matter jurisdiction over action against airline to recover for their deaths in the crash of an airliner, even though at time of the accident they were temporarily living in Brazil while one of them completed an international work assignment; decedents regularly spent time away from home on temporary assignments and never expressed an interest in leaving the U.S. permanently, they kept their home in Texas and received mail there, they left their cars in Texas, and they filed tax returns there.

Nevertheless, the Court concluded that the Montreal Convention did not override district court's power to dismiss action for forum non conveniens. Private interest factors weighed in favor of dismissal, even though the defendant manufacturers of the aircraft components were located in the United States, as was much of the evidence of the defectiveness of their products; investigations were taking place in France, all the physical evidence recovered was located there, some defendants were French companies, and actions and/or claims could be consolidated in France.

Spanair Crash

      1. In re Air Crash at Madrid, Spain, on August 20, 2008, 2:10-ML-02135 GAF, 2011 WL 1058452 (C.D. Cal. Mar. 22, 2011).

On August 20, 2008, a McDonnell Douglas MD–82 aircraft operated by Spanair as flight JK5022, crashed during takeoff in Madrid, Spain, killing 154 people and injuring 18 others. Evidence shows that the plane crashed after its takeoff warning system did not sound to alert the pilots that the wings' slats and flaps were not configured in takeoff position. 204 plaintiffs, most of whom are citizens of Spain and none of whom are United States citizens, represented 100 passengers and estates brought 116 wrongful death and personal injury suits asserting negligence and strict products liability claims against McDonnell Douglas, its successor, Boeing, and various alleged component manufacturers.

Defendants argued the strong interest of Spain in the outcome of the litigation given that the aircraft operator, pilots, and most victims are Spanish citizens and that the accident occurred at a Spanish airport on Spanish soil. Plaintiffs opposed and asserted that this product liability action, which was brought against United States defendants who are allegedly responsible for defects in the aircraft and the resulting deaths and injuries, should be heard in United States courts.

After reviewing multiple factors, the Court concluded that Spain was an available and adequate alternative forum, that the private interest factors favored dismissal, and that the public interest factors strongly favored dismissal.

Transactions

Flight Options, LLC v. State, Dept. of Revenue, 84207-8, 2011 WL 3717001 (Wash. Aug. 25, 2011)

Fractional Jet Company habitually entered the state with their airplanes such that the state Department of Revenue consistent with due process could treat airplanes as having acquired a tax situs in state, even though airplanes did not operate over fixed routes or on regular schedules, where company's airplanes averaged two visits to state each day.

Flight Options is fractional jet company with its principal place of business in Ohio. The company manages a fleet of approximately 200 aircraft. In 2004, the aircraft landed at or took off from airports in Washington 1,397 times; in 2005, the aircraft landed in Washington 700 times.

Flight Options LLC challenged the constitutional and statutory authority of the Department of Revenue to assess apportioned property taxes against the fleet of airplanes it manages. Flight Options argued that its airplanes do not have a tax situs in Washington and that the due process clause therefore prohibited assessment of taxes on them. Flight Options further contended that the statute prohibits the tax assessment because Flight Options is not an “airplane company” within the statutory definition because Flight Options does not own the fleet of airplanes.

The superior court granted the Department's motion for summary judgment. The Court of Appeals affirmed the superior court's summary judgment order. The Supreme Court of Washington also affirmed the rulings.

The due process clause prohibits a state from taxing property unless that property has acquired a tax situs in that state. Instrumentalities of interstate commerce, such as airplanes, trains, and inland water vessels, may acquire a tax situs in multiple states. In determining whether property has acquired a tax situs in a given state, it is appropriate to look at the fleet of instrumentalities as a whole, even if the specific and individual items of property entering the state are not continuously the same.

The Court reasoned that the magnitude of the contacts necessary to establish a tax situs is quite low. Relying on a number of maritime and railroad tax cases with similar factual scenarios, including a DC Court of Appeals case that held that the district could assess an apportioned property tax against a fleet of water vessels that entered the district an average of once per day, the Court found that Flight Options' average of two daily visits to the state of Washington in each year was more than adequate to put it on notice that it would be subject to taxation here.

Citing a recent case that held that 50 to 70 visits by sales employees of a company over a seven-year period, the Court also suggested that the dormant commerce clause was sufficient to establish a substantial nexus with the State.

Finally, the Court addressed the question of if the company was an “airplane company” for purposes of the statute. The statute requires the person or entity need only do one of the four options listed -- own, control, operate, or manage personal property -- to be eligible for the tax. As the record left no doubt that Flight Options manages all the airplanes in its fleet, the Court concluded that Flight Options was undoubtedly an “airplane company” within the plain meaning of the definition of that term set forth in the statute.

Interesting Cases

Azpitarte v. King County, C10-1186Z, 2011 WL 2518916 (W.D. Wash. June 23, 2011)

Plaintiff's claim for continuing harassment by police helicopter, although not barred by res judicata, was dismissed for lack of a cognizable legal theory. Plaintiff failed to show that the repeated hovering of a helicopter had deprived him of a constitutional right for the purpose of sustaining a claim under 42 USC § 1983.

Nat'l Air Traffic Controllers Ass'n v. Sec'y of Dept. of Transp., 10-3171, 2011 WL 3569957 (6th Cir. Aug. 16, 2011)

Air traffic controllers whose only remaining claim was that they would be injured by renewal of private contracts at towers exceeding Level I classification did not have Article III standing, in action against Secretary of Department of Transportation (DOT) and Administrator of Federal Aviation Administration (FAA) regarding privatization of air traffic control (ATC) towers, where they did not stand to lose their job by virtue of FAA's renewal of any private contracts and they had not worked in past at privatized Level I ATC tower alleged to have exceeded Level I classification.

United States v. Armstrong, 397 F. App'x. 466 (10th Cir. 2010)

Evidence that defendant charged with tax fraud had a pilot's license, traveled frequently to Mexico where he owned property and his wife had a real estate business, and transferred and received money from overseas banks, supported district court's determination that defendant was a flight risk and should be detained pending trial.

Indictment charged Armstrong with participating in a fraudulent scheme involving the use of fabricated and false Internal Revenue Service (IRS) 1099–OID forms to obtain large income tax refunds to which he was not entitled.

After Mr. Armstrong was transferred to the District of Colorado, he appeared before a magistrate judge who allowed him to reopen his detention hearing. Investigators testified about the fact that Mr. Armstrong had a pilot's license, traveled frequently to Mexico where he owned property and his wife had a real estate business, and transferred and received money from overseas banks, including financial institutions in Belize.

At the close of the hearing, the magistrate judge orally ruled that Mr. Armstrong was a flight risk and that he should be detained pending trial because there were no conditions or combination of conditions that could reasonably ensure his presence as required by the court.

1 I would like to thank the current KCBA Aviation Section leadership for allowing me to present at this conference. Particularly, I would like to thank Kerry Kovarik, Jimmy Anderson, and Bob Hedrick for their feedback, guidance, and mentorship on this project.



Posted by Casey DuBose

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