Association Flight Attendants v. Dept. of Transp., 08-1165.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtKaren Lecraft Henderson
Citation564 F.3d 462
Docket NumberNo. 08-1165.,08-1165.
Decision Date01 May 2009
564 F.3d 462
Virgin America Inc., Intervenor.
No. 08-1165.
United States Court of Appeals, District of Columbia Circuit.
Argued February 5, 2009.
Decided May 1, 2009.

Susan B. Jollie argued the cause for the petitioner. Edward J. Gilmartin was on brief.

Mary F. Withum, Trial Attorney, United States Department of Transportation, argued the cause for the respondent. Paul M. Geier, Assistant General Counsel, Dale C. Andrews, Deputy Assistant General Counsel, and Robert B. Nicholson and Kristen C. Limarzi, Attorneys, United States Department of Justice, were on brief.

Kenneth P. Quinn argued the cause for the intervenor. Jennifer Trock was on brief.

Before: HENDERSON, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

[564 F.3d 463]


The Association of Flight Attendants— CWA (AFA) challenges the decision of the United States Department of Transportation (DOT) to issue Intervenor Virgin America, Inc. (Virgin America) a certificate of public convenience and necessity to provide interstate air transportation as an "air carrier" under 49 U.S.C. § 41102. AFA asserts that DOT erred when it found that Virgin America is "under the actual control of citizens of the United States," as required by 49 U.S.C. § 40102(a)(2) and (a)(15). Because AFA has not demonstrated that any of its members suffered an injury-in-fact that was caused by DOT's order certifying Virgin America, we conclude AFA has failed to demonstrate its standing under Article III of the United States Constitution.


On December 8, 2005, Virgin America filed an application for an interstate air certificate. Under 49 U.S.C. § 41102, DOT is authorized to issue a certificate of public convenience and necessity for air transportation to an "air carrier," which term is defined to include only "a citizen of the United States," id. § 40102(a)(2); "a citizen of the United States" is defined in turn to include a corporation which meets each of four requirements: (1) it is "organized under the laws of the United States or a State, the District of Columbia, or a territory or possession of the United States," (2) its "president and at least two-thirds of the board of directors and other managing officers are citizens of the United States," (3) it is "under the actual control of citizens of the United States," and (4) "at least 75 percent of the voting interest is owned or controlled by persons that are citizens of the United States." Id. § 40102(a)(15)(C). A number of airlines and unions (including petitioner AFA) objected to Virgin America's application on the ground that the airline did not meet the statutory definition of a "citizen of the United States" because it was in fact owned and controlled by United Kingdom citizen Richard Branson, founder of Virgin Atlantic Airways, and affiliated parties. On December 27, 2006, DOT denied the application, finding that the airline did not meet the requirements of section 40102(a)(15) because less than 75 % of its total equity was owned by United States citizens and it was not under the actual control of United States citizens. Order to Show Cause, Docket No. OST-2005-23307, at 1 (Dec. 27, 2006) (DOT).

Virgin America filed a revised application, which DOT tentatively approved— subject to further modifications—on March 20, 2007. Order to Show Cause, Docket No. OST-2005-23307, at 1-2 (Mar. 20, 2007) (DOT). Virgin America agreed to most of DOT's modifications and on May 18, 2007, DOT approved the application and issued "a certificate of public convenience and necessity to Virgin America Inc., to engage in interstate scheduled passenger air transportation" subject to certain terms and conditions set out in an appendix. Final Order, Docket No. OST-2005-23307, at 5 (May 18, 2007) (DOT). In an order issued August 17, 2007, DOT memorialized an oral decision of August 7, 2007, which had made the certificate immediately effective. Order Confirming Oral Actions and Issuing Effective Certificate, Docket Nos. OST-2005-23307, OST-2007-28673, at 1 (Aug. 17, 2007) (DOT).

Meanwhile, AFA filed a petition for review of the Final Order in the United States Court of Appeals for the Ninth Circuit on July 17, 2007. By order filed April 21, 2008, the Ninth Circuit granted DOT's motion to transfer the petition to this Circuit pursuant to 28 U.S.C. § 1631

564 F.3d 464

because AFA has its principal place of business in the District of Columbia.


AFA challenges DOT's decision to issue a certificate to Virgin America as arbitrary and capricious, 5 U.S.C. § 706(2)(A), and unsupported by substantial evidence, 49 U.S.C. § 46110(c). Before we address the merits of AFA's petition, we must consider whether the petitioner has Article III standing to bring its challenge. See S. Cal. Edison Co. v. FERC, 502 F.3d 176, 179 (D.C.Cir.2007) (citing Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). AFA asserts standing to bring this challenge on behalf of its members, Pet'r Br. at 22, and must therefore establish that "`(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" Int'l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1135 (D.C.Cir.2005) (quoting United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996)) (internal quotation omitted). We conclude that AFA has failed to make the threshold showing that at least one of its members has Article III standing to sue in his own right.

"The `irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." Miami Bldg. & Const. Trades Council v. Sec'y of Def., 493 F.3d 201, 205 (D.C.Cir.2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (internal quotation omitted). Thus, to establish standing, a litigant must demonstrate a "personal injury fairly traceable to the [opposing party's] allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). AFA asserts its members are injured by DOT's certification order because of the increased competition it caused in the markets Virgin America entered, which in turn caused other airlines, which employ AFA members, to reduce the number of flights in those markets and, consequently, the number of hours their flight attendants work. Because the claimed injury—with its attenuated chain of causation—is not "selfevident [sic]," it was incumbent on AFA to "establish its standing by the submission of its arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in [this] review proceeding," that is, "with its opening brief." Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002); see D.C.Cir. R. 28(a)(7) ("In cases involving direct review in this court of administrative actions, the brief of the appellant or petitioner must set forth the basis for the claim of standing. ... When the appellant's or petitioner's standing is not apparent from the administrative record, the brief must include arguments and evidence establishing the claim of standing." (citing Sierra Club, 292 F.3d at 900-01)). AFA has failed to meet its burden of production because it has not "`show[n] a "substantial probability" ... that [DOT] caused its injury.'" Int'l Bhd. of Teamsters, 429 F.3d at 1134 (quoting Sierra Club, 292 F.3d at 899 (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.Cir.2000))).

564 F.3d 465

In support of standing, AFA appended to its opening brief the September 26, 2008 affidavit of Kelle Porter Wells, AFA Master Executive Council President at Alaska Airlines, Pet'r Br. at A-213. Wells's affidavit recites in relevant part that "DOT's approval of Virgin America to operate as a domestic U.S. carrier has directly increased competition with Alaska Airlines and among other factors, led it to begin a program to reduce flights and staff," that "[i]n late July 2008 AFA and [Wells] were told by Alaska Airlines that it would be forced to reduce capacity by what it then projected to be 5% for the last quarter of [2008], and most likely to continue through 2009" and that on September 25, 2008, "the Managing Director of Crew Scheduling at Alaska Airlines told [her] that ... there would still need to be an involuntary furlough of flight attendants." Id. at A-214-15. These averments are insufficient to establish the requisite causation.

In Sierra Club, we made clear the "petitioner's burden of production in the court of appeals is ... the same as that of a plaintiff moving for summary judgment in the...

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