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April 19, 1984

MIDWAY AIRLINES, INC., Plaintiff, UNITED STATES OF AMERICA, ELIZABETH HANFORD DOLE, Secretary of Transportation, and MICHAEL J. FENELLO, Deputy Administrator of the Federal Aviation Administration, Plaintiffs-Intervenors, against COUNTY OF WESTCHESTER, NEW YORK, ANDREW P. O'ROURKE, County Executive, and WESTCHESTER COUNTY BOARD OF LEGISLATORS, Defendants.

The opinion of the court was delivered by: WEINFELD


This is another lawsuit involving the Westchester County Airport. *fn1" The issue now before this Court is a motion by plaintiff, Midway Airlines, Inc. ("Midway"), for a forthwith mandatory injunction that would require the County of Westchester ("the County"), Westchester County Executive Andrew P. O'Rourke ("O'Rourke"), and the Westchester County Board of Legislators ("the County Board"), the defendants herein, to provide immediate "access to the Westchester County Airport" for Midway's proposed scheduled flights between Midway Airport in Chicago and the Westchester airport. Midway's application for such immediate and drastic relief is supported by the plaintiff-intervenors, the United States of America, the Secretary of Transportation, and the Deputy Administrator of the Federal Aviation Administration. *fn2"

 Apart from the litigants, various other parties may be affected by the disposition. These include other carriers, which, under law, have equal rights of access to the airport facilities, residents of the immediate area who have, over the years, been concerned with noise abatement and other environmental problems, corporate jet owners and others who use the landing and navigational facilities, as well as passengers who regularly avail themselves of the services provided by the airport and its scheduled carriers. Defendants, who have an obligation to protect the health, welfare, and safety of the County's inhabitants, as well as a legal duty not to discriminate unjustly against any carrier seeking to use the facilities, vigorously oppose the motion pending completion of a currently ongoing study of the myriad of problems raised by conflicting demands upon the airport facilities.

 In addition to forthwith injunctive relief, Midway seeks a permanent injunction and monetary relief to redress defendants' alleged "unlawful refusal to allow Midway access to Westchester County Airport." Generally, the complaint alleges that defendants have violated no fewer than three federal statutes enacted to promote competition in the market for interstate commercial air travel, *fn3" the Civil Rights Act of 1871, *fn4" and the Sherman Antitrust Act. *fn5" The intervenors also seek permanent injunctive relief, and base their complaint upon the Supremacy Clause of the Constitution, *fn6" various contractual rights arising out of grant agreements between the Secretary of Transportation and defendants, *fn7" as well as the aviation statutes relied upon by Midway.

 The instant dispute arises from a February 17, 1984, request by Midway's president and chief operating officer, Neal F. Meehan, that O'Rourke notify Midway within five days of the County's determination whether to grant Midway permission to schedule "Part 121 air carrier service," consisting of three flights each weekday *fn8" and three flights each weekend *fn9" between Westchester County Airport ("HPN") and Midway Airport, and O'Rourke's reply on February 23, 1984, that the County Board, as the proprietor of HPN, would render no decision on Midway's application pending a "review of policies and guidelines with respect to [a]irport operations."

 The affidavits of various Midway and County officials establish that at the time of O'Rourke's announcement, HPN was served by three "Part 121 air carriers": United Air Lines, Air Florida, and Empire. Like Midway, these airlines are "certificated" by the Federal Aviation Administration to provide interstate passenger service and, as opposed to "commuter carriers," are authorized to use aircraft with a maximum capacity in excess of thirty seats of 7,500 pounds. *fn10" With the permission of the County Board, the three incumbents scheduled a total of eight flights daily to and from HPN.United, the only of the three offering service to Chicago, had applied for permission to use airport facilities on October 6, 1983, and was given final permission by the County Board on December 15, 1983, to schedule a maximum of two flights daily. *fn11" The eight Part 121 air carrier flights, including United's, continue to land and depart each day.

 The County Board uses a two-step procedure in approving applications for airport use. First, there is a technical review by the airport manager to ensure that needed arrangements for ground services are made, coordination of air schedules is accomplished, and noise limitations and other requirements are met; upon successful completion of such review, the application is forwarded to the County Executive and the County Board for final approval. *fn12" Midway invoked this process on December 6, 1983, when it notified airport officials of its desire to initiate Part 121 air carrier service at HPN on March 1, 1984, *fn13" with the schedule of flights noted above. At the time Midway applied, it had no arrangements for passenger service, ticketing, ground handling, or overnight parking of its aircraft. In addition, Midway's departure schedule violated the airport's "30 minute" rule, which prohibits more than one Part 121 air carrier departure each half hour. These technical problems were not fully resolved, and hence Midway's application was not ripe for decision by the County Board, until February 21, 1984.

 As Midway's Director-Properties and Facilities, George L. Niemeyer, acknowledged in his affidavit, Midway's scheduled service would impose additional burdens on what was at HPN already "limited terminal space available for the processing of passenger traffic and the limited parking area for the . . . aircraft . . . Midway w[ould] be using." HPN Manager Samuel F. Smith III's affidavit amplifies the specific crowding problems: there is only one small terminal equipped to handle flights by Part 121 air carriers; *fn14" during peak hours of 7:00 a.m. to 9:00 a.m. and 5:00 p.m. to 7:00 p.m. on week nights "so many passengers are currently booked on departing flights that it is often impossible to even enter the building"; at such times there are "lines extending from ticket counters out into the street"; and the situation is even worse in holiday periods. *fn15" At least one of Midway's proposed scheduled flights, if approved, would depart during peak hours.

 Midway's application was only one expression of the increased interest by commercial air lines in serving the Westchester airport. According to airport manager Smith, within the past year "and particularly since August, 1983," such interest "increased dramatically." By December, 1983, no fewer than seven Part 121 air carriers, including United, and ten commuter air carriers, had expressed interest in initiating new service to Westchester. United and Precision Airlines, a commuter air carrier seeking to use the same terminal used by the Part 121 air carriers, had filed formal applications to initiate new service. And, as noted, on December 6, 1983, Midway first expressed its desire to schedule service.

 In December 1983 -- the record does not indicate a precise date -- the County Board recognized that the situation required an informed study in order to establish rational guidelines for ruling upon pending and future applications for the use of scarce airport capacity. The evident need for essential information in view of the increased demand for use of the airport, and its ensuing problems, led the County to suspend the processing of applications that appeared ripe for decision by the County Board. *fn16" It was manifest that if the County was to observe its statutory duties with respect to use of the airport, information was required to establish criteria and standards in light of the ever increasing number of applications. On January 30, 1984, the County Board engaged the serivces of an airport consultant to develop a "comprehensive and complete statement of . . . policy for the airport," which is expected to be forthcoming within a short period. The County Board asserts it will be able, upon receipt of the report, to promulgate interim rules for assessing then-ripe applications, including Midway's, within four weeks. If it is determined that the airport is at or above capacity, a method will be devised for fairly allocating the available flight slots amongst all competing applicants, including both incumbents and those seeking to initiate new service.

 Since the implementation of the County's decision to defer final decision upon pending applications, other carriers, in addition to Midway, have had their applications for access to HPN deferred. In particular, decision on the application of Precision Airlines, which passed through the technical review on March 30, 1984, has been treated exactly as has that on Midway's: it has been deferred. The application of another commuter airline, Colgan Airways, which seeks to expand existing service, has also been deferred. That of American Airlines, a Part 121 air carrier, is not ripe for final decision by the County Board because American's proposed aircraft exceed existing operational limitations set by the County, and, accordingly, the application has not passed through the technical review phase. At the same time, however, no action has been taken on a request by American to the County that the operational limitations be waived.


 The standard in this Circuit for the granting of preliminary relief is well known. As our Court of Appeals recently reiterated:

 To be entitled to a preliminary injunction, . . . [movant] must show "(a) irreparable harm and (b) either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting ...

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