Recipient's Obligation to Immediately Notify FTA of Litigation Affecting the Federal Transitt Program or Individual Project Receiving FTA Funding

Dear Colleague:

I write to remind you of a recipient’s obligation to immediately notify FTA of litigation that may affect the Federal Government’s interests in an FTA-assisted project or the Federal Government’s administration or enforcement of Federal laws or regulations. This obligation, embodied in subsections 2.g. and 41.a. of the Master Agreement, contemplates informing us of significant litigation affecting the Federal Transit program or individual project receiving FTA funding. Let me emphasize, however, that you do not need to inform FTA of "fender benders," workers’ compensation claims, routine personnel matters, or the like.

Recently, not being informed of pending litigation affecting the program has been a recurring problem. Not long ago, for example, we learned from newspaper accounts of a Federal court challenge to the designation of dispatchers as safety-sensitive workers in our anti-drug rule. Similarly, FTA was not notified of a State court suit implicating our Disadvantaged Business Enterprise program until after the court had ruled the program unconstitutional. Once we learned of that matter we requested the Department of Justice to file an amicus (friend-of-the-court) brief on behalf of FTA and DOT. DOJ did so in the subsequent appeal. The decision was eventually overturned. In yet another matter, FTA was notified just before a Federal court issued an injunction preventing the recipient from complying fully with DOT’s DBE rule. The district court then thwarted our efforts to intervene at that stage of the proceedings and the United States has appealed that ruling to the Court of Appeals for the Fifth Circuit. Early notification provides the Federal Government with more options and opportunity to assist in the defense of FTA programs and projects.

We understand that it is not always possible to discern a litigant’s intent to challenge a Federal program or regulation when the suit is first filed. Lawsuits sometimes evolve in unexpected ways. Once it becomes clear that an FTA program or regulation is at issue, however, you should notify the appropriate Regional Counsel or the Office of the Chief Counsel in Washington, D.C. Even if FTA does not participate directly in the litigation, we may be able to provide background information and other technical assistance. Please ensure that your litigation attorneys, whether in-house or outside counsel, are aware of the notification requirement and the potential for FTA participation.

Sincerely,
Gordon J. Linton