NYSA TI Single-Page 4
Telephon_
Abstract
Enclosed are further papers filed in the proceeding brought by Action on Smoking and Health in the U.S. Court of Appeals for the District of Columbia Circuit to challenge the Civil Aeronautics Board's revised rules governing smoking aboard aircraft. As you can see, both the CAB and the Air Transport Association have opposed ASH's motion for a stay pending review.
Fields
- Named Organization
- ASH (Action on Smoking and Health)Action on Smoking and Health
- Civil Aeronautics Board (Ruled on smoking in U.S. airplanes)
- Committee of Counsel (TI)
- *Department of Health, Education, and Welfare (HEW) (use United States Departmen (use @hew_dept)
- Eastern Airlines
- Federal Aviation Administration (Ruled on smoking on U.S. flights)
- Federal Aviation Administration (FAA)
- Federal Communications Commission (FCC)
- Federal Trade Commission (FTC)
- General Counsel
- Sierra Club
- U.S. Department of Justice
- Named Person
- Banzhaf, John F., III (Exec. Dir. Action of Smoking & Health (ASH))Executive Director of Action on Smoking and Health (ASH).Professor of Law at Georgetown. Banzhaf succeeded in using the Fairness Doctrine to get cigarette commercials off television in 1968. See Banzhaf FCC, 405 F, 2d 1082 (D.C. Cir. 1968) (affirming FCC ruling that radio and television stations must devote a significant amount of broadcast time to case against smoking). His telephone number is (202) 659-4310. The big focus in past years has been to force OSHA to enforce smoking bans, per Matt Bars. ASH publishes Smoking and Health Review bulletins. "A leading anti-smoking activist" (Chic. Sun-Times 6/23/93). Action on Smoking and Health is located at 2013 H Street, N.W., Washington, D.C. 20006. (Castano Expert List) See Action on Smoking a Health, TTLA Almanac - Names.
- Demby, Alan R.
- Frisbie, Mark
- Halpern, Margaret
- Kelly, Kevin
- Kingham, Richard F. (Attorney, Covington & Burling Partner)Defense
- Knopick, Paul C. (TI, Editor "Tobacco Observer" late '70s-early 80's)Editor of the Tobacco Institute Newsletter, the "Tobacco Observer"
- Kornegay, Horace R. (TI President and Exec. Director)VP Leaf Ops (RJR), TI Chairman (1985)
- Manley, Jeffery A.
- Mueller, AthenaPlaintiff
- Panzer, Frederick
- Date Loaded
- 18 Jul 2005
- Box
- 0624
Document Images
TELEPHON~"
(zoo) 6~z-~ooo
(202) 662-5268
COVINGTON & E~URLING
I:mOI PENNSYLVANIA AVENUE, N. W.
P. O. BOX 7566
WASHINGTON, D.C. 2004.4
November 5, 1981
1981
MEMORANDUM TO COMMITTEE OF COUNSEL
Enclosed are further papers filed in the proceed-
ing brought by Action on Smoking and Health in the U.S.
Court of Appeals for the District of Columbia Circuit to
challenge the Civil Aeronautics Board's revised rules gov-
erning smoking aboard aircraft. As you can see, both the
CAB and the Air Transport Association have opposed ASH's
motion for a stay pending review. Transamerica Airlines,
which is principally a charter airline and is not a member
of the ATA, has also filed a motion for leave to intervene
and has opposed ASH's stay motion.
In its memorandum in opposition to ASH's motion
for a stay (at page 4, note 4), Transamerica states that
the CAB lacks authority to regulate smoking aboard air-
craft. The question of the Board's authority over smoking
is presently before the Fifth Circuit in Diefenthal v.
Eastern Airlines, Inc., which is in part a proceeding to
review the CAB's denial of a petition for rulemaking to
eliminate the smoking regulations. Transamerica says its
brief will raise this question if it has not been resolved
by the Fifth Circuit (which almost certainly will not hap-
pen before Transamerica's brief is due).
ASH's brief is currently due in early December
and the CAB's is due in January, but the Court may revise
the briefing schedule to accommodate the intervenors.
Richard F. Kingham
Enclosures q~~../
cc: Arnold Henso9,
William Kloe~r, Jr.v
Paul Knopick~
Horace R. Kornegay, Esq.
Frederick Panzer
CAB Working Group
Ti05390221
IN THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
ACTION ON SMOKING and HEALTH
Petitioner
V.
CIVIL AERONAUTICS BOARD
Respondent
No. 81-2023
RESPONSE IN OPPOSITION
TO PETITIONER'S
MOTION FOR STAY PENDING REVIEW
In accordance with the Federal Rules of Appellate
Procedure and the rules of practice of this Court, Fed'.
R__~. App. P. 27(a); Handbook of Practice and Inter-
hal Procedures, D.C. Cir., VIII(A), the Air Transport
Association of America [hereinafter referred to as ATA],
which moved for intervenor status in this proceeding on
October 19, 1981, submits this response in opposition to
the motion for stay pending review filed by petitioner,
Action on Smoking and ,Health [hereinafter referred .to as
ASH], and dated October 15, 1981.!/ ATA asserts that
ASH has fai.led to meet the standards required for the
~/ Since ATA had yet to file its motion tointervene
by this date, ATA was not served with a copy of ASH's
motion for stay pending review, but obtained such from ASH
on October 19, 1981.
T105390222
- 2 -
granting of a stay of an administrative regulation or
order, as prescribed in Virginia Petroleum Jobbers v.
FPC, 104 U.S.App. D.C. 106, 259 F.2d 921 (1958), and
later refined in Washington Metropolitan Area Trinsit
Comm'n v__~. Holiday Tours, 182 U.S.App.D.C. 177,
559 F.2d 841 (1977) [hereinafter cited as Holiday
Tours], and, as a result, ASH's motion for stay should
be denied. In support thereof, ATA offers the following:
i. ASH has failed to demonstrate that, absent
the Court's granting of its motion for stay pending review,
it will be irreparably injured. The regulation of the
Civil Aeronautics Board [hereinafte[ referred to as the
Board] which is under review became effective on October
16, 1981. Moreover, the major provision of this regula-
tion, which exempts airlines from the obligation to ex-
pand the no-smoking section aboard aircraft to accommodate
late-arriving non-smokers, has, in fact, been in effect
since the adoption of Order 81-8-22 (dated August 6, 1981)
which, subsequent to the air traffic controllers' strike,
exempted the air carriers from a number of Board regula-
tions, including, inter alia, ones concerning smoking
aboard aircraft ATA is unaware, nor has ASH offered
evidence, that this regulation has caused any problems for
non-smoking air travellers during its approximate two and
and one-half months of effectiveness. The Board, moreover,
in rejecting ASH's application fo~ stay of the regulation
T105390223
- 3 -
under review ~/noted that no "significant problems for
non-smokers. . ." had resulted, Order 81-10-80 at 2 (dated
October 14, 1981), and indicated that the occurrence of
such in the future was unlikely. Consequently, ~ubstan-
tial, actual experience with the major provision of the
regulation under review has occurred, contrary to factual
situations generally presented in stay proceedings, and
that experience indicates that no irreparable injury has
resulted to petitioner.
2. ASH has failed to demonstrate that other parties
would not be substantially harmed by the issuance of a
stay. ASH's motion for stay, in fact, does no more than
allege the absence of substantial harm to other parties,
while offering no support for this assertion. ATA, how-
ever, believes that a stay of the regulation under review
would result in substantial costs being incurred by the
air carriers. As noted by the Board in the regulation
under review, for example, providing seats in the no-
smQking section for late-arriving non-smokers "imposes the
!
greatest cost on carriers and the greatest disruption in
passenger arrangements. . .", 46 Fed. Reg. 45934,
45937 (September 16, 1981). Particularly during a period
of reduced air carrier operations caused by the Federal
Aviation Administration's Interim Operations Plan of Sep-
2--/ A copy of the .Board's Order Denying Stay is attached
to this document. (Not attached indistributic~t~ATA~nrriers).
T!05390224
-4 -
tember 9, 1981, which arose from the air traffic controller
strike, the request of every non-smoker may not now be able
to be accommodated, and the airlines, as a result, would be
subject to civil penalty provisions of $1,000 pe-r viola-
tion under Section 901 of the Federal Aviation Act of 1958,
as amended, 49 U.S.C.§I47&.
3. ASH has failed to demonstrate that a stay of the
Board's regulation is in the public interest, asserting,
instead, only that a return to the prior regulations
would not be contrary to the public interest. The regulation
under review was the subject of extensive consideration by
the Board, and interested parties were afforded ample op-
portunity to present their positions to the the Boar~,
both orally and "in writing. The Board, in rejecting ASH's
application fo[ stay, moreover, has noted that the regula-
under review "~provides a reasonable balance between the
desires of smokers, the rights of non-smokers, and the
needs of the airlines," Order 81-10-80 at 2 (dated October
14, 1981), and ASH has provided no refutation to this con-
clusion which would ~emonstrate that the interests of the
public have not been met by the regulation under review.
4. ASH has asserted that a strong showing can be
made that it is likely to prevail in its ~hallen~e of £h~
regulation under review, while failing to provide any sup-
port for this assertion. Thus, even if reliance is placed
on the "refined" standard regarding probability of suc-
Ti05390225
- 5 -
cess announced in Holiday Tours, which ASH has not
done, ASH has failed to make an overall showing that sub-
stantial equity requires the granting of a stay of the
regulation under review.
In consideration of the foregoing, ATA opposes ASH's
motion for stay pending review and urges that this Court
deny Baid motion.
Respectfully submitted,
October 21, 1981
/s/ Kathleen O. Argiropoulos
Kathleen O. Argiropoulos
Assistant Vice President - Law
and Secretary
Air Transport Association of
America
1709 New York Avenue, N.W.
Washington, D.C. 20006
(202)-626-4234
Attorney for Petitioning
Intervenor, Air Transport
Association of .%aerica
T105390226
IN THE
'" . UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ACTION SMOKING AND ~EALTH,
.Petitioner,
v.
CIVIL AERONAUTICS BOARD,
Respondent
No. 81-2023
MOTION FOR LEAVE TO INTERVENE
Trans~merica Airline~, Inc., (Transamerica), hereby moves
this Court for leave to intervene i~ the captioned~)oceeding
pursuant to Rule 15 (d) of the FRAP and in Support of its motion
states the following:
i. By its petition in No. 81-2023 Action of Smoking and
Health (ASH) seeks reviewof a rulemaking amendment to Part-
250 of the Civil Aeronautics Board's (CAB) Economic Regulations,
~4 CFR Part 250, governing the separation.of smoking and non-
smoking seats on board aircraft of.certificated U.S. air carriers.
Regulation ER-1245, adopted September 16, 1981. Transamerica
is a U.S. air carrier operating charter add scheduled air trans-
portation services pursuant to certificates of public convenience
T105390227
-Z
2
and necessit9 issued by the CAB. As such, Transamerica is subject
to the requirements of the Part 250 seat separation rules.
2. Transam4rica was an active party in the.rulemaking
proceeding before the CAB which led up to the adoption of Regula-
tion ER-1245, ~. In that proceeding Transamerica advocated
liberalization of the seat separation requirements of Part 250
to relieve the burden on air carriers and passengers caused
by the former rules.
3. Transamerica would be injured by a ~eversal of the
RegulationER-1245 amendment since any such action could have
the affect of requiring it to reinstate the pre-existing.seating
assignment procedures. As a party directly affected by £hese
-rules, Transamerica has an i~threst different f~o~.~hat of the
respondent, CAB. ..
" 4. On the basis of the foregoing, Transamerica has standing
tO intervene as a party under Rule 15(d) of the FRAP and accordingly
requests this Court to grant its instant motion.
Resp~ctfully submitted,
" BURWELL, }LANSEN, MANLEY & PETER~
Suite 550
1815 H Street, N.W~
Washington, D.C. 20006
(202) 293-1010 t
J~re~ 5.,~4anley
Attorneys for
TRANSAMERICA AIRLINES, INC_
TI05390228
CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of October 1981
I'have caused a copy of the foregoing motion to be served on
the following persons by first-class mail postage prepaid:
Athena Mueller
Action on Smoking and Health
2013 H Street, N.W.
Washington, D.C. 20006
Alan R. Demby
Associate General Counsel
Litigation Division
Civil Aeronautics Board
1825 Connecticut Avenue, N.W.
Washington, D.C. 20428
Attorney General of the United States
U.S. Department of Justice
Washington, D.C. 20530
Ms. Margaret Halpern
U.S. Department of: Justice
Washington, D.C. 20530
~f~e~' /(. Manley £/
T105390229
IN THE
UNITED STATES COURT OF APPEAL
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ACTION ON SMOKING. AND HEALTH, :
P~titioner. :
CIVIL AERONAUTICS BOARD, :
Respondent :
No. 81-2023
STATEMENT OF KEVIN KELLY
I, Kevin Kelly, make the following statement in opposition.,
to the motion for stay filed in the captioned proceeding:
i. My name is Kevin Kelly and I reside at 861 Chateli
Court, Pleasanton, California. I am employed by Transamerica
Airlines, Inc., as Manager of Passenger Services and Special
Programs and have been employed in Transamerica's Passenger
Service Department for over eleven years. I am responsible
for the development of the procedures used by our passenger
service staff for assigning seats and for staff training to
assure that these procedures are properly applied.
2. I have read the motion for stay filed in this case
by Action on Smoking and Health. I disagree with the allegation
contained in paragraph 6 of that motion (p.3) that a judicill
stay of Regulation ER-1245 "would no__~t substantially harm other
parties." As I understand it, a stay of ER-1245 would require
T!05390230
