Association of Flight Attendants-CWA v. United States Department of Transportation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2009 Decided May 1, 2009

No. 08-1165

ASSOCIATION OF FLIGHT ATTENDANTS–CWA, AFL-CIO,

PETITIONER

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION,

RESPONDENT

VIRGIN AMERICA INC.,

INTERVENOR

On Petition for Review of an

Order of the Department of Transportation,

National Transportation Safety Board

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.

2

Before: HENDERSON, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: 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.

I.

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

3

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 because AFA has its

principal place of business in the District of Columbia.

4

II.

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 (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 (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. & Constr. 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 (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 (1984)

(citing Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)).

AFA asserts its members are injured by DOT’s certification

5

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))).

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

6

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 district court: it

must support each element of its claim to standing ‘by affidavit

or other evidence.’ ” Sierra Club, 292 F.3d at 899 (quoting

Defenders of Wildlife, 504 U.S. at 561). Moreover, a supporting

affidavit “ ‘must “set forth”. . . “specific facts” ’ ” pursuant to

Federal Rule of Civil Procedure 56(e), id. (quoting Defenders

of Wildlife, 504 U.S. at 561(quoting Fed. R. Civ. P. 56(e))), that

is, it “must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant is

competent to testify on the matters stated,” Fed. R. Civ. P.

56(e)(1). Thus, “[a]lthough, as a rule, statements made by the

party opposing a motion for summary judgment must be

accepted as true for the purpose of ruling on that motion, some

statements are so conclusory as to come within an exception to

that rule.” Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.

1999); see also Dist. Intown Props. Ltd. P’ship v. District of

Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) (“[T]he court

must assume the truth of all statements proffered by the

non-movant except for conclusory allegations lacking any

factual basis in the record.”) (emphasis added). Wells’s

assertion of causation is just such a conclusory statement.

In Greene, we affirmed the grant of summary judgment to

the defendant on the plaintiff’s claim of retaliatory failure to hire

because the district court correctly declined to accept as true the

plaintiff’s “conclusory” representation in an affidavit that “she

applied for summer jobs in 1996 and 1997 and was not hired

although ‘another student, who had less experience and

education was hired back’ in 1996.” 164 F.3d at 675. “Absent

7

supporting facts,” we explained, this statement did not

demonstrate the requisite retaliatory animus because “a jury

would be in no position to assess her claim of superiority.” Id.;

see also Hussein v. Nicholson, 435 F.3d 359, 365 (D.C. Cir.

2006) (affirming summary judgment in religious discrimination

suit because “district court correctly found that [appellant’s]

evidence of religious animus consisted merely of conclusory

allegations in his own affidavit”) (citing Dist. Intown Props.,

198 F.3d at 878). Wells’s causation claim fares no better.

While Wells’s affidavit cites Alaska Airlines officials as the

source of the claimed injury—“an involuntary furlough”

resulting from the fact that Alaska Airlines “would be forced to

reduce capacity”—it offers no authority for its claim that

“DOT’s approval of Virgin America to operate as a domestic

U.S. carrier” was among the “factors” that “led [Alaska

Airlines] to begin a program to reduce flights and staff.” Pet’r

Br. at A-214-15. Competition from Virgin America may have

played a role in Alaska Airlines’s decision to reduce flights and

staff—or the decision may have been attributable entirely to

other factors, such as higher fuel prices and a sinking economy.

See Dan Richman, Alaska to Cut Flights, Jobs, Seattle Post-

Intelligencer, Sept. 12, 2008, http://www.seattlepi.com/business/

378900_alaska13.html (“With the announcement that it will lay

off up to 10 percent of its work force and make further cuts to its

flight schedule, Alaska Airlines has joined the ranks of troubled

airlines both here and abroad. Many U.S. airlines are cutting

both jobs and flights as they struggle with high fuel prices and

a troubled economy.”). We cannot tell the cause from the record

and we see no basis in the affidavit—which itself provides no

factual support for the asserted causation—to suppose that Wells

had personal knowledge of the cause or was otherwise

competent to testify as to its nature. Thus, the affidavit’s

assertion of causation has no more force under the summary

judgment standard we apply than if it were alleged in a

complaint. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888

8

(1990) (“The object of [Rule 56(e)’s “specific facts”

requirement] is not to replace conclusory allegations of the

complaint or answer with conclusory allegations of an

affidavit.”); cf. Tex. Indep. Producers & Royalty Owners Ass’n,

410 F.3d 964, 972-73 (7th Cir. 2005) (rejecting as “conclusory”

affidavits’ allegations that environmental group’s individuals

were harmed by EPA’s authorization of general permits for

construction site discharges because group “fail[ed] to adduce

specific facts in its proffered affidavits to support its claim that

the water bodies are ‘directly affected by pollution from

construction activities subject to the General Permit’ ”); Kitty

Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 459 (5th Cir. 2005)

(rejecting air cargo company’s claim of injury from U.S.

Department of Labor ruling that pilots were subject to prevailing

wage requirements because “nothing in the record, beyond a

conclusory statement in the affidavit of its Chief Executive

Officer,” supported “assertion that an increased prevailing wage

determination will interfere with its ability to assign pilots

according to standard operating procedures and business

considerations”).

Stripped of the conclusory causal averment, Wells’s

affidavit demonstrates only that as of December 2007 Alaska

Airlines planned to reduce capacity and furlough flight

attendants. Missing is the crucial causal connection tying the

actions to competition from Virgin America rather than to some

other factor. For this reason, we conclude that AFA has failed

to meet its burden of production under Sierra Club to

demonstrate with its opening brief that its members have

suffered or will suffer any “personal injury fairly traceable to

[DOT’s] allegedly unlawful conduct.” Allen v. Wright, 468 U.S.

at 751.1 Nor do the circumstances of this case persuade us we

1

AFA also appended to its opening brief a March 7, 2007 e-mail

(“representative of several hundreds of communications that [DOT]

9

should look beyond the opening brief for evidence of standing.

This is not a case where the petitioner “reasonably, if

inaccurately,” assumed its standing was self-evident when it

filed its opening brief. See Am. Library Ass’n v. FCC, 401 F.3d

489, 490-91 (D.C. Cir. 2005) (ordering supplemental post-

argument submissions where “[b]oth petitioners and the

Commission reasonably, if inaccurately, concluded that

petitioners’ standing was self-evident, so neither party pursued

the matter in their opening briefs to the court” and intervenor

only “interposed a vague and limited challenge to petitioners’

standing”). To the contrary, AFA recognized the need to

supplement the administrative record with Wells’s affidavit and

both DOT and, in particular, intervenor Virgin America

affirmatively challenged AFA’s constitutional standing. See

Resp’t Br. at 12; Intervenor Br. at 10-14. Nor is this a case

where the petitioner’s lapse should be excused because reply

submissions “make it patently obvious that . . . at least one of

[AFA’s] members will suffer a cognizable ‘injury in fact’ as a

result of the disputed order.” Communities Against Runway

Expansion, Inc. v. FAA, 355 F.3d 678, 685 (D.C. Cir. 2004).

The submissions appended to AFA’s reply brief fall far short of

this standard.

With its reply brief, AFA submitted a number of affidavits

from furloughed AFA members, which simply proffer the

factually unsupported opinion that one carrier or another

furloughed the affiant or reduced his hours at least in part

was receiving concerning [the certificate application proceeding]”),

which asserted simply—and speculatively (in the subjunctive)—that

“[s]hould the DOT approve [its] application, Virgin America could

displace thousands of good paying U.S. jobs.” Pet’r Br. at A-207

(emphasis added). That approval “could” reduce flight attendant jobs

does not show a “substantial probability” that it will do so. Int’l Bhd.

of Teamsters, 429 F.3d at 1134.

10

because of Virgin America’s entry into the passenger local

transportation market.2 These averments are as conclusory as

the similar claim in Wells’s affidavit. Nor have we any more

reason to believe than we did of Wells that these affiants had

personal knowledge of the cause of the reductions or were

otherwise competent to testify as to causation. We nonetheless

examine one affidavit which provides somewhat more detail

than the others.

The affidavit of Cathy J. Hampton, a furloughed United

2

See Aff. of Dolores Myers at 2 (Nov. 21, 2008) (“The

Department of Transportation allowance of entry by Virgin America

into the U.S. market where United Airlines flies has been part of the

reason that United Airlines has had to reduce its flight attendant

staff.”); Aff. of Kathleen Birner at 2 (Nov. 21, 2008) (“With the

current loss of income due to the furlough, I have had to bring my

expenses down to a minimum and currently go to the San Mateo Food

Bank each month for food, because of the Department of

Transportation’s decision to allow Virgin America to operate within

the United States of America.”); Aff. of Roman Martinez at 2 (Nov.

28, 2008) (“I am unable to get my normal flight schedule due to

overstaffing that is in part due to Virgin America’s entry into the

markets where I work as an Alaska Airlines flight attendant.”); Aff.

of Kelly Kochanek at 2 (Dec. 16, 2008) (“I am unable to get my

normal flight schedule with Alaska Airlines due to overstaffing, in part

because of Virgin America’s entry into the markets where I work as

an Alaska Airlines flight attendant. . . . I can’t get enough flying to

cover my bills each month. This was not a problem before Alaska had

to make flight cutbacks, in part because the Department of

Transportation has allowed Virgin America to fly domestic routes

within the United States.”); Aff. of Dawn Luckman at 2 (Dec. 16,

2008) (“I am unable to get my normal flight schedule with Alaska

Airlines due to overstaffing, in part because of Virgin America’s entry

into the markets where I work as an Alaska Airlines flight attendant.”).

11

Airlines (United) flight attendant, contains the following

relevant statements:

4. I had heard from United that they were intending to

reduce flying in the domestic network, specifically in

markets served by lower cost carriers, and especially

foreign airlines.

5. The one foreign-controlled airline that I heard about

in the USA is Virgin America.

6. My understanding is that United is reducing its

service because Virgin America is undercutting United,

and “my flying” will go to Virgin America.

Aff. of Cathy J. Hampton at 2 (Nov. 21, 2008). Like Wells’s,

Hampton’s affidavit identifies her employer as the source of her

knowledge of the planned flight reductions and it goes even

further to state that United itself represented it was planning

reductions “in markets served by lower cost carriers, and

especially foreign airlines.” Id. (emphasis added). Yet the

affidavit does not attribute to United—or to any other specific

source—Hampton’s assertion that Virgin America (and only

Virgin America) is a “foreign-controlled airline.” Id. Nor does

she identify any objective factual basis for her vaguely couched

“understanding” that “United was reducing its service because

Virgin America is undercutting United.” Id. (emphasis added).

In short, neither Hampton’s nor any other flight attendant’s

affidavit compensates for AFA’s failure to demonstrate standing

in its opening brief because they do not “make it patently

obvious that . . . at least one of [AFA’s] members will suffer a

cognizable ‘injury in fact’ as a result of ” DOT’s certification

order. Communities Against Runway Expansion, Inc., 355 F.3d

at 685 (emphasis added). Nor does the affidavit of AFA’s

“OSHA Specialist” Dinkar Mokadam, also appended to the

reply brief, suffice.

12

Mokadam assembled Bureau of Transportation Statistics

data for 2007 into three charts, which, the affidavit asserts,

“suggest[] that introduction of VA nonstop services during

August, 2007 may have contributed to reductions in market

share for United Airlines’ nonstop flight services between SFO

and LAX, as well as JFK and LAX, in particular during the

month of September, 2007.” Aff. of Dinkar Mokadam at 2

(Nov. 25, 2008) (emphasis added). Even apart from the

tentative and speculative tone of this statement, the charts are of

little help because they show a reduction in passenger market

share, that is United’s percentage of all of the passengers flying

in a particular market; they do not show the number of flights

United operates—or even the actual number of passengers it

carries—in a given market. In any event, even as to market

share, the charts do not demonstrate a “substantial probability,”

Int’l Bhd. of Teamsters, 429 F.3d at 1134, that Virgin America’s

“nonstop services during August, 2007” “contributed to

reductions . . . for United Airlines’ nonstop flight services

between SFO and LAX, as well as JFK and LAX, in particular

during the month of September, 2007.” Aff. of Dinkar

Mokadam at 2 (Nov. 25, 2008). Although the charts reveal that

United’s market share of the New York/Los Angeles route

decreased significantly in August-September 2007, they also

show that United’s market share of this route had been

decreasing gradually since February 2007—months before

Virgin America began flying in August 2007—and that United’s

market share of the New York/San Francisco route had started

to drop significantly as early as February or March 2007 and had

then leveled off and even risen slightly in September 2007 after

Virgin America began service on the route in August, while

United’s market share of the Los Angeles/San Francisco route

began to drop precipitously as early as May 2007.3 Mokadam

3

In fact, there is evidence Alaska Airline’s immediate reaction to

Virgin America’s competition was to increase service. See Ben

13

also assembled a table showing the entry date of Virgin America

into certain markets and the “numbers of recently announced

furloughs of AFA flight attendant members at one or both

airport domiciles,” Reply Br. at RA-24 (case altered), but again

there is nothing to causally tie the “recently announced”

furloughs (as of Nov. 25, 2008) to Virgin America’s entry into

the identified markets (at various times from August 8, 2007 to

September 4, 2008) rather than to other economic or other

business reasons.

In sum, the only “evidence” supporting the causation prong

of the standing test consists of the unsubstantiated allegations by

AFA’s members that DOT’s certification of Virgin America and

Virgin America’s subsequent entry into various passenger

carrier markets at least partially caused other airlines to reduce

flights and to cut back flight attendants’ working hours.

Without some underlying factual basis for attributing furloughs

and hour reductions to Virgin America’s competing

flights—rather than to other factors—we cannot accept these

statements as anything other than conclusory and therefore

inadequate under Rule 56(e). Because AFA did not demonstrate

a “substantial probability,” Int’l Bhd. of Teamsters, 429 F.3d at

1134, that Virgin America caused the alleged injuries to AFA’s

members, it failed to carry its burden of production to establish

standing. Accordingly, we dismiss the petition for review for

lack of subject matter jurisdiction.

So ordered.

Mutzabaugh, Turf war? Alaska Air makes move ahead of Virgin

America’s Seattle debut, USA Today, Jan. 18, 2008, http://

blogs.usatoday.com/travel/flights/item.aspx?type=blog&ak=443372

92.blog (“Alaska Airlines is beefing up its service between Seattle and

six California markets, a move that comes just ahead of new

competition coming from Virgin America.”).