America West Airlines, Inc. v. Burnley

• Decision Date: 19 February 1988
• Docket Number: No. 87-1639,87-1639
• Citation: 838 F.2d 1343
• Parties: , 1988-1 Trade Cases 67,894 AMERICA WEST AIRLINES, INC., Petitioner, v. James H. BURNLEY, IV, Secretary U.S. Department of Transportation, Respondents, USAir Group, Inc., Piedmont Aviation, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1343

838 F.2d 1343

267 U.S.App.D.C. 393, 1988-1 Trade Cases 67,894

AMERICA WEST AIRLINES, INC., Petitioner, v. James H. BURNLEY, IV, Secretary U.S. Department of Transportation, Respondents USAir Group, Inc., Piedmont Aviation, Inc., Intervenors.

No. 87-1639.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 12, 1988.

Decided Feb. 19, 1988.

John E. Gillick, with whom, Robert Reed Gray and Robert A. Burka, Washington, D.C., were on the brief, for petitioner.

Diane R. Liff, Asst. Gen. Counsel for Litigation, Dept. of Transp., with whom, B Wayne Vance, Gen. Counsel, Dept. of Transp., Washington, D.C., was on the brief, for respondents. Thomas L. Ray, Counsel, Dept. of Transp., Washington, D.C., also entered an appearance for respondents.

Michael S. Sundermeyer, with whom, Brendan V. Sullivan, Jr., Lee M. Hydeman, Stephen H. Lachter, James T. Lloyd, for USAir Group, Inc.; Robert M. Lichtman, Washington, D.C., Joseph F. Healy, Jr. and David R. Murchison, Winston-Salem, N.C., for Piedmont Aviation, Inc., were on the brief, for intervenors, USAir Group, Inc. and Piedmont Aviation, Inc.

Before SILBERMAN and SENTELLE, Circuit Judges, and GREENE, ^* District Judge.

Opinion PER CURIAM.

PER CURIAM:

This matter is before the Court on petition of America West Airlines, Inc. (America West) for review of Department of Transportation orders approving the merger of USAir Group, Inc. (USAir) and Piedmont Aviation, Inc. (Piedmont). America West contends that the merger will result in impermissible entry barriers, increased market power and a substantial reduction of competition in the relevant markets. Since it appeared to the Court that a threshold question--the standing of America West to bring the petition--could be dispositive, the Court requested supplemental briefs on that issue. ¹ Upon review, the Court finds, for the reasons stated below, that America West lacks standing and therefore dismisses the petition.

In a Final Order dated October 30, 1987, the Department of Transportation (DOT), acting pursuant to 49 U.S.C. Sec. 1378, approved the acquisition by USAir of Piedmont. On November 1, 1987, America West petitioned this Court for review of that final order. USAir and Piedmont were permitted to intervene and America West's motion to stay the order was denied. The merits were then briefed by the parties on an expedited basis and the Court heard oral argument on January 12, 1988, at which time it directed the parties to submit supplemental briefs limited to the question of America West's standing, both Article III and antitrust/competitor, ² to challenge DOT's order.

To invoke this Court's Article III powers, America West must demonstrate standing in a constitutional sense. To demonstrate its standing, America West must allege and prove three elements: (1) personal injury; (2) fairly traceable to the defendant's allegedly unlawful conduct; and (3) likely to be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

America West has alleged two injuries. First, it contends that the approval of the merger will inhibit eastward expansion of its airline service, although it does not specify any city-pair markets. Second, it contends that the merger will make it more difficult for America West to obtain slots at Washington National Airport (DCA) and LaGuardia (LGA), specifically because the increased concentration of the slots will increase their value to the post-merger USAir. ³ Assuming that these two "injuries" constitute personal injury for purposes of constitutional standing, America West has, nevertheless, failed to demonstrate the existence of the remaining two elements as set out in Allen, supra.

In California Association of the Physically Handicapped, Inc. v. FCC, 778 F.2d 823 (D.C.Cir.1985), CAPH challenged use of a "short form" process to approve a transfer in ownership of Metromedia. CAPH claimed it was injured by Metromedia's alleged neglect of its responsibilities to the handicapped. Id. at 825. This Court held that CAPH did not satisfy the causation requirement because "CAPH's alleged injury occurred before, existed at the time of, and continued unchanged" after the transfer of ownership. Id. at 827. CAPH also did not satisfy the redressability requirement because "even if the Commission had denied the transfer application, Metromedia, despite its allegedly bad record, would remain in control of the stations." Id. The Court also pointed out that CAPH's grievance "is properly and pointedly raised in a license renewal proceeding," not in a transfer of ownership proceeding. Id. at 826.

Applying California Association to the instant case, neither of America West's alleged injuries are sufficient to confer Article III standing. First, America West's generalized allegations about flying eastward are neither causally related to the Department's Final Order nor redressable by reversal of the Order. Just as CAPH's injuries did not stem from the FCC's approval of a transfer in ownership, America West's alleged inability to fly in ...