Wednesday, April 10, 2013

Paskar v. U.S. DOT

Apr 9: In the U.S. Court of Appeals, Second Circuit, Case No. 10-4612. In summary, the Appeals Court indicates that petitioners seek review of a letter written by the Federal Aviation Administration (FAA) to the City of New York (City) on September 2, 2010 (the Letter). Petitioners contend the Letter is a "final order" subject to review by the Court. The Letter states that the FAA agrees with an expert panel's finding that the City's plan to reopen a coastal garbage transfer facility in College Point, Queens, would be compatible with safe air operations as long as several recommendations are followed. The facility, the North Shore Marine Transfer Station (Station), is 2,206 feet across Flushing Bay from the landing threshold of Runway 31 at LaGuardia Airport and 585 feet perpendicular to its extended centerline. The Appeals Court rules, "We hold that, because the Letter is not a 'final order' for purposes of 49 U.S.C. § 46110(a), we are without jurisdiction to review it. The petition for review is therefore dismissed."
    Petitioners in this case, a general aviation pilot and a not-for-profit corporation interested in the safety of aviation, filed this petition for review on October 29, 2010, seeking review by the Court alleged that they had "a substantial interest in the Letter's subject matter, that the Letter was a final order reviewable by this Court, and that it was arbitrary and capricious." Respondents moved to dismiss the petition on the ground that the Letter was not an "order," and that the court of appeals therefore lacks subject matter jurisdiction to hear the petition. A motions panel of this Court denied the motion to dismiss, holding that the Letter was an order subject to review. The Appeals Court indicates that, "A merits panel may revisit a decision made by a motions panel."
    The Appeals Court says, "No term in the Letter 'imposes an obligation' on the City, 'denies a right' of the City, or 'fixes some legal relationship' with the City" and concludes, "The FAA letter and inter-agency panel report did not deny a right, impose an obligation, or have legal consequence. It was not a "final order," and we lack jurisdiction to review it. The petition for review is dismissed."
    Access the complete opinion (click here). [#Solid, #Wildlife, #Transport, #CA2]
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