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OST-2007-28118 - Aer Lingus, et al v. LAWA - Joint Complaint in Opposition to New Terminal Chargest at LAX - Separate Docket
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Aer Lingus, Plc, et al. v. Los Angeles World Airports April 30, 2007 Joint Complaint in Opposition to New Terminal Charges at LAX This Complaint raises the core issue of whether the Airport may charge airlines for virtually all of the costs of the terminal space they share with concessionaires. By imposing the Landing Fees Rates Methodology, which was adopted for airfield space used exclusively for airfield cost centers that are associated only with air service, to shared terminal space and allocating that space to the airlines at the Tom Bradley International Terminal, LAWA has devised a scheme whereby it is paid at least twice its costs for the same space. This scheme, which will add to the already substantial surpluses of LAWA and LAX, has not been and cannot be justified and is therefore unfair and unreasonable. Moreover, since the scheme has not been similarly applied to the TBIT Airlines’ principal competitors at LAX, it is unjustly discriminatory. Counsel: Kirkpatrick & Lockhart, James Weiss, 202-628-1700, jim.weiss@klgates.com
OST-2007-28118 May 2, 2007 Please set up a separate docket number and file for the Joint Complaint, referenced above, which was filed on April 30, 2007 involving Los Angeles International Airport. This new complaint should not be included in Docket OST-2007-27331. By: General Counsel for Litigation, Paul Geier
May 7, 2007 The Joint Complainants hereby submit the following errata and Table of Contents correcting certain errors and omissions in the Joint Complaint filed April 30, 2007. Counsel: Kirkpatrick & Lockhart, James Weiss, 202-628-1700, jim.weiss@klgates.com
May 9, 2007 Exhibits of LAX (Respondents):
Counsel: Kaye Scholer, Steven Rosenthal
May 9, 2007 Exhibits of LAX (Respondents):
Counsel: Kaye Scholer, Steven Rosenthal, 202-682-3500, srosenthal@kayescholer.com
May 9, 2007 Respondents' Answer to Joint Complaint Purportedly Filed on April 30, 2007 The 22 foreign air carriers captioned on the Joint Complaint In Opposition To New Terminal Charges At Los Angeles International Airport purportedly filed with DOT on April 30, 2007, are currently operating out of the Tom Bradley International Terminal at Los Angeles International Airport. In the Second Joint Complaint, the Foreign Complainants seek to challenge the exact same terminal rate methodology currently at issue in Alaska Airlines v. LAWA, Docket OST-2007-27331 — a case in which the final reply briefs were submitted to the Administrative Law Judge just five calendar days ago. The Foreign Complainants have styled this new, Second Joint Complaint as a complaint filed under 49 U.S.C. § 47129, or, in the alternative — apparently in recognition of the fact that current case law disallows such a suit — Foreign Complaints seek to proceed under 49 U.S.C. § 40113(a). The Second Joint Complaint should be summarily dismissed: (1) because foreign air carriers are not proper complainants under 49 U.S.C. § 47129; (2) because the filing of the Second Joint Complaint as a § 47129 complaint directly violates the Instituting Order in Alaska Airlines v. LAWA, Docket OST-2007-27331 and (3) because the Second Joint Complaint is untimely under 49 U.S.C. § 47129(a)(1)(B) and 14 C.F.R. § 302.602(b). Foreign air carriers are not proper complainants under § 47129. Counsel: Kaye Scholer, Steven Rosenthal, 202-682-3500, srosenthal@kayescholer.com
May 9, 2007 Declaration of Patricia V. Tubert in Support
May 9, 2007 Certificate of Jeffery A. Tomasevich of Serrvice of the Answer
May 9, 2007 Certificate of Service for Respondents
May 11, 2007 Reply of TBIT Airlines to Respondents' Answer - Bookmarked The TBIT Airlines have filed this action for two reasons: (1) to preserve their position that they should be entitled to proceed under the procedures that the Department of Transportation has established under 49 U.S.C. § 47129, and (2) to invoke the Department’s authority and obligation under the Anti-Head Tax Act, 49 U.S.C. § 40113, and the Airport and Airways Improvement Act, 49 U.S.C. § 47107(a), to protect them from unreasonable and discriminatory fees. A number of the issues raised in this Complaint are, of course, related to the dispute the Department already has before it regarding airport fees and charges in Alaska Airlines, et al. v. Los Angeles World Airports, Docket OST-2007-27331, and on which a final Departmental decision will be reached on or before June 15, 2007. LAWA charges in characteristic fashion that the Joint Complaint is intended to create “unnecessarily… duplicative effort.” That is, of course, not the TBIT Airlines’ intent. The TBIT Airlines have no desire to relitigate matters or issues that will be decided in LAX III, and in fact propose that the Department structure the proceedings on this Complaint so as to be able to take advantage of any rulings and matters decided in LAX III. The TBIT Airlines in fact believe that the issues remaining for resolution in this case will be greatly narrowed by the LAX III decision and that the Department will be able to resolve any remaining issues in the light of LAX III within any applicable time frames. Finally, a preliminary word about the timing of the Joint Complaint, which is the subject of a good deal of exercised discussion in LAWA’s Answer. As set out more fully below, this Complaint was not, contrary to LAWA’s contentions, ripe in February for consideration on the same schedule as the pending LAX III proceeding. The new “rentable” space methodology it challenges had not been imposed on the TBIT Airlines when the prior complaint was filed on February 16, 2007, or when the TBIT Airlines submitted their follow-on complaint on February 23, 2007. Indeed, the new rate methodology and corresponding fee increases were not “final” until March 5, 2007, when LAWA took the final step necessary to effectuate the change, and the TBIT Airlines were not formally notified of this action until March 9, 2007. As noted below, the Department’s controlling regulations, which LAWA improperly discounts, refute any suggestion that this Complaint was filed too late to invoke the procedures of Section 47129. The TBIT Airlines are also desirous that, in resolving this Complaint, the Department have the benefit of the decision in LAX III to the extent the possible. The TBIT Carriers thus respectfully submit that the timing of procedures to resolve this Complaint should be established to allow that to occur. Counsel: Kirkpatrick & Lockhart, James Weiss, 202-628-1700, jim.weiss@klgates.com
May 11, 2007 Reply Declaration of Frank Clark in Support of TBIT Airlines
May 14, 2007 Notice of Action in Port Authority of New York and New Jersey v. DOT Respondents, the City of Los Angeles, Los Angeles World Airports and the Los Angeles Board of Airport Commissioners, hereby respectfully notify the Department of Transportation that the U.S. Court of Appeals for the District of Columbia Circuit has denied the foreign air carriers' petitions for rehearing and for rehearing en banc in Port Auth. of N Y. & N.J. v. DOT, 479 F.3d 21, 33 (D.C. Cir. 2007). As a result, the decision in that case is now final. Counsel: Kaye Scholer, Steven Rosenthal, 202-682-3500, srosenthal@kayescholer.com
July 17, 2007 Motion of Aer Lingus to Adopt the Record in a Prior Proceeding and Enter Summary Disposition Complainants, a group of foreign air carriers operating out of the Tom Bradley International Terminal of the Los Angeles International Airport, respectfully request that the Department adopt the record in Alaska Airlines, Inc. v. Los Angeles World Airports, Docket No. OST-2007-27331 (“LAX III”), as full and complete testimony and evidence in this proceeding. There is no cause or basis to re-litigate issues already litigated in a prior hearing. There are no issues left to decide. Accordingly, the Department should decide the issues in the Complaint in favor of the TBIT Airlines on the basis of the record developed in LAX III. As to the amount of the refund due to the TBIT Airlines, the Department should set a procedure by which the parties may submit argument on the appropriate refund due. Counsel: Kirkpatrick & Lockhart, James Weiss, 202-628-1700, jim.weiss@klgates.com
July 20, 2007 Respondents' Motion to Extend Time to Respond In light of the novelty and complexity of the issues raised by the Motion to Adopt Record, the conflicting nature of the Foreign Complainants' requests, the Foreign Complainants' lack of urgency in raising these issues previously, and the lack of harm to the Foreign Complainants, LAWA respectfully requests that it be permitted to file its opposition to the Foreign Complainants' Motion to Adopt Record on or before August 23, 2007. LAWA would also note that its request that the case be dismissed or docketed and noticed as a Part 16 proceeding (in its Answer to the Second TBIT Complaint) is still pending and that DOT'S anticipated ruling could moot the current motion practice. LAWA respectfully requests that if this Motion is not granted that it be given ten calendar days from the date of any DOT order to file its opposition to the Motion to Adopt Record so as to permit DOT to consider LAWA's position on the motion. Counsel: Kaye Scholer, Steven Rosenthal, 202-682-3500, srosenthal@kayescholer.com
July 24, 2007 Complainants' Opposition to Respondents' Motion to Delay the Proceeding Respondents seek to delay this proceeding for at least four weeks while continuing to collect over $80,000 per day from the TBIT Airlines in fees the Department has determined are unjustly discriminatory and unreasonable. The Department decided on June 15, 2007 in the "LAX III" case that the fee methodology Respondents are imposing on certain U.S. airlines, which is the same methodology they are imposing on the TBIT Airlines, violates federal law. On July 13, 2007, the Department's remedy order in LAX III became final, and Respondents were ordered to cease charging these unreasonable and discriminatory fees to the US. airlines in Terminals 1 and 3. The TBIT Airlines face overt discrimination if Respondents are permitted to keep charging them these unlawful fees at the very same time that U.S. carriers need not pay them. The TBIT Airlines' Motion to Adopt the Record in a Prior Proceeding and Enter A Summary Disposition provides on expedited procedural vehicle to avoid this unreasonable and discriminatory result. Respondents' Motion to Extend does not attempt to defend such an untoward situation. Indeed, Respondents concede that if the LAX III Order is upheld on appeal, it will roll back its charges to the level the Department has ordered, and refund the difference. This concession does not, however, eliminate the discrimination against the TBIT Airlines. Respondents essentially seek the Department's imprimatur to continue charging unlawful fees to the TBIT Airlines while exhausting all appeals, a time period that could extend for many months or even a year. The TBIT Airlines are sympathetic to requests for extension of time to accommodate the schedules of counsel, and particularly at this time of year would be more than happy to extend such courtesies were it not to prejudice them. But the nearly month-long delay Respondents seek would lengthen the time during which the TBIT Airlines will have to continue to make payments that the Department already has found to be illegal. Moreover, the fees are even more discriminatory than they were in as much as the TBIT Airlines are now nearly alone among all of the airlines serving Los Angeles International Airport that are still required to pay the higher fees. Counsel: Kirkpatrick & Lockhart, James Weiss, 202-628-1700
Order 2007-7-20 Issued and Served July 26, 2007 The Department finds that the novelty and complexity of the issues raised by the Carriers' motion warrant additional time for the Respondents to respond. The Department also finds that the Carriers' concerns about fee payment obligations warrant a shorter time extension to respond than the time requested by Respondents. The Respondents' "Motion to Extend Time to Respond to 'Motion to Adopt the Record in a Prior Proceeding and Enter Summary Disposition' Filed on July 17, 2007" is hereby GRANTED, in part, and DENIED, in part. The Respondents are directed to file their response to the Carriers' "Motion to Adopt the Record in a Prior Proceeding and Enter Summary Disposition" no later than Monday, August 6, 2007. By: Michael Reynolds
August 6, 2007 On July 17, 2007, the Foreign Complainants filed an unprecedented motion, styled curiously as "Motion to Adopt the Record In a Prior Proceeding and Enter Summary Disposition." In their Motion, the Foreign Complainants request that DOT "adopt the record in Alaska Airlines, Inc. v. Los Angeles World Airports, Docket No. OST-2007-27331, as full and complete testimony and evidence in this proceeding" and that, on the basis of this "adopted" record, DOT "enter summary disposition" for the Foreign Complainants "declaring that Los Angeles World Airports is prohibited from imposing on the TBIT Airlines rent and charges that are based on the rentable space and market method formulae." More than three months after the Foreign Complainants filed the Second TBIT Complaint, it is still unclear what type of proceeding they initiated (or, indeed, whether they initiated any proceeding at all). It is unclear, because in the Second TBIT Complaint, the Foreign Complainants asserted that they were filing it with DOT under its authority pursuant to a number of different statutes. Because it is unclear what type of complaint the Foreign Complainants filed, it is entirely unclear what procedures govern this proceeding. While DOT has - appropriately - not treated the Second TBIT Complaint as a 5 47129 complaint (the deadline under 471 29 for issuing an instituting order or dismissing the complaint has long since passed), LAWA does not know whether the Foreign Complainants are proceeding under 14 C.F.R. Part 16, under 14 C.F.R. Part 302, or some arbitrary and capricious amalgamation of those two procedures (and possibly others) that the Foreign Complainants have cherry picked to advantage themselves - and to disadvantage LAWA - as much as possible. Given this situation, it would be highly prejudicial to LAWA and would violate LAWA's due process rights if DOT were to require LAWA to respond to the Foreign Complainants' Motion to Adopt Record before DOT determines what procedures govern the Second TBIT Complaint, since the Motion to Adopt Record is a dispositive motion - it requests DOT to issue a summary disposition based on a prior record in another proceeding. Accordingly, L,AWA objects to the Foreign Complainants' Motion to Adopt Record and opposes DOT taking any action on the motion until (1) the Second TBIT Complaint has been properly docketed (if it is to be docketed), (2) the procedures governing this proceeding have been established, and (3) LAWA has had a full and fair opportunity to respond under the proper procedural framework. For the avoidance of doubt, should DOT decide to consider the Foreign Complainants' motion, LAWA opposes the Foreign Complainants' request to adopt LAX III's record and summarily declare the Foreign Complainants victors in this proceeding. As explained below, the Foreign Complainants' motion is nothing more than a blatant attempt to reap the benefits - while at the same time trying to avoid the less favorable aspects - of the LAX III ruling. Counsel: Kaye Scholer, Steven Rosenthal, 202-682-3500, srosenthal@kayescholer.com
August 15, 2007 TBIT Airlines' Motion for Leave to File an Unauthorized Document Respondents’ Opposition 1) erroneously asserts that Part 16 of the FAA regulations provides the Counsel: Kirkpatrick & Lockhart, James Weiss, 202-628-1700, jim.weiss@klgates.com |
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