Oral argument — 03-35596 Evergreen International Airlines v. United States

Honorable justices, may it please the court, my name is Robert Stewart and I represent Sometimes we wish we were justices, but those are the people who overrule us, we're just judges Honorable judge It's commonly known there's no justice in the Ninth Circuit Well, hopefully there will be today I'm the attorney for Evergreen Nice response I was asked to propose a split of the time allocation with Co-Appellant Alaska Central Express And I would intend to take ten minutes, argue at this point for eight, reserving two for rebuttal Okay, we'll try to help you keep track In the time that I have, what I'd like to do is highlight a few key factual issues And focus on two of what I feel are the four central legal issues that are presented in this appeal And those are the trial court's failure to consider the evidentiary materials submitted by Evergreen and by Alaska Central And the question of the retroactive disqualification of Evergreen from eligibility to carry bypass mail And the bypass mail system As to the other two central issues, the irrationality of this absolute barrier to entry Represented by the 75% passenger carry requirement And the improper delegation of control over entry into the market to competitors And in this case principally Alaska Airlines I'll rely upon the briefing unless the court has questions First thing I'd like to do is set a little context if I can And talk about the standard of review We acknowledge and we do not argue with the legal standard of review It's a daunting one We need to show that there is no rational relationship between the classifications in the statute And any legitimate government purpose We also acknowledge that when you look at the Supreme Court cases, the Ninth Circuit cases It is a rare case where this type of challenge prevails But at the same time and apropos to justice being done here today We want to focus the court on the discussion that you find in cases like Matthew B. Locust Which reminds the court that this cannot be a mere truthless review It cannot be a mere rubber stamp of the governmental action And so what we submit is this is one of these cases where the abuses are so extreme That if there's going to be any meaningful judicial review This is the type of the case where the court ought to intervene The abuses revolve around whether there's a legitimate government interest for these restrictions? It revolves both around whether it's a legitimate government interest And it also revolves around whether there's an appropriate nexus Between whatever governmental purpose there is out there and the means that were chosen Why don't you elucidate those because we know the facts and read your briefs I'm interested in your theory on how you base your assertion that there was a problem here Well I think and I'll go to that But I think the lynchpin is the evidentiary ruling of the trial court And if this court determines that there was no error by the trial court In ignoring the affidavit of Faint Myers and ignoring the affidavit of Jerry Rock Then the evidence there that shows the irrationality And you go back to Armanduris and Lockery And they say a plaintiff challenging constitutionality has a right to put in evidence Has a right to show that the purpose simply doesn't exist as in Lockery That there was no water shortage And so when you turn in the affidavit of Faint Myers And you look at the postulated purpose here One of stability That affidavit debunks that myth And the affidavit of Myers says There simply was no instability in the bypass mail system in Alaska At the time of the enactment of the statute The carriers that were in there at the time Four of them Five of them actually And that's one of the issues we have here Weren't growing There was no evidence of under-absorbed capacity There was no evidence of losses There was no flux since 1995 When Linden was grandfathered into the marketplace In terms of the number of carriers So we have this shibboleth out there of stability And it's worth noting at the same time That stability is nowhere found in the terms of the statute It's something the United States made up And the trial court decided to adopt Because it's a little more consistent With the circularity of the logic implied In terms of the means-ends nexus That it was rational for Congress to decide That it wanted four carriers Circular logic And so guess what it did It passed the statute that bumped one Evergreen International And left four in the marketplace Well of course if you assume the result Which is what that logic does Then of course you'll find rationality But if you look at Delaware River Basin There are certain cautions Highly against circularity of logic of that type Well I'm a little lost here Help me You were saying that the judge Disregarded those affidavits But I've just checked my memory here The judge ruled on a motion to dismiss And you're saying his error was going to a motion dismissed Rather than treating it as a motion for summary judgment Yes And here's how I think Wait a minute Is that what you're arguing? Exactly Okay now what's our standard of review on that? On the judge's decision To go with treating it as a motion to dismiss I think it's a question of law your honor And here's the logic If I might This is sort of I'm a civil lawyer And this is sort of Alice in Wonderland stuff to me Okay I come into this case And the first thing I do like any other case Is I want to know what's my evidence What do I have to prove? How do I make my case? And I go read the cases And I find Well there's this amazing thing out there The United States, the government Gets to have these things called legislative facts Are they evidence? No They can make them up And this may be Alice in Wonderland But it's getting more Alice in Wonderland for me Because is it possible for In this case A motion for judgment on the pleadings to be filed And they did And is it possible for the judge then to rule on that And he did Now what's the problem What's the legal error there? The legal error is he brought in Extra record material He brought in the legislative facts And here's the logic They can bring these pieces of evidence in And they did They argued stability You find stability nowhere in the statute There was no legislative history Because there were no hearings conducted There was only cursory remarks By Senator Stevens at the enactment So the United States Where the statute reads Safe, affordable, reliable Non-male freight and passenger service They come in with distinct stability And constitutional jurisprudence says they can do it They can make these things up But when you bring Extrinsic legislative facts like that When you bring an extrinsic legislative fact Like this nexus Between keeping it for and for only And stability You are de facto converting That motion to dismiss To a Rule 56 proceeding And if you go look at Minnesota B. Cloverleaf Creamery It is really clear That plaintiffs such as Evergreen Have to be permitted To challenge the rationality of those facts As in Lockery We have to be permitted To show that this assumed purpose A need for stability Simply doesn't exist Because the facts are such And here once again This Alice in Wonderland litigation I don't have to prove by preponderance I have to prove That it's not even fairly debatable I have to prove That no reasonable legislator Could reasonably have conceived That such a state of affairs existed And so I go out and do it I get Hank Myers A recognized expert in this area Who's advised the Postal Service And he analyzes this and says There's simply no problem with instability There is no rationality In the purported purpose Because the problem doesn't exist Just like the water shortage Just like the housing situation In Armanduras And when I show That the purported problem doesn't exist The legislative purpose is not rational When I go on And then I show That the nexus between the classification And even assuming stability is the issue Is not rational When I go on and show That the 75% passenger carry requirement Is an absolute barrier Not something that will foster passenger carry Not something that will foster mail carriage But it's an absolute barrier to entry I have proven it's irrational And that's the real error In what Judge Singleton did Because he ignored that And I say I'm probably a little over my time I want to drop a footnote here Which is important Judge Singleton not only ignored the evidence But then he compounded that error By getting into the very factual areas And if you go read his opinion He talks about whether there's a barrier of entry And he says it's high Not insurmountable, but high Where's the evidence? The United States didn't put it in It's not in the legislative record He made a finding on that factual subject area That is inconsistent with the only Uncontroverted evidence in the record He then goes on Again, similarly, in the delegation issue And he says Those folks, last airlines et al Will not act irrationally They will not engage in behavior Consciously, intentionally to bar entry Again, where's the evidence? Not in the legislative record Not in anything the United States provided him The uncontroverted evidence From Mr. Meyer's affidavit Is that they will And that it will be cost effective For them in the long run So I'll add to that That there in fact is a 12B issue here Because while he didn't specifically Consider an affidavit the United States put in He went and considered the factual areas That were touched upon in our submittals And he made factual findings Which are unsupported entirely By the record And he refused to acknowledge The evidence that was put in front of him I have 15 seconds that I'll reserve If I might Thank you Thank you, Your Honor May it please the Court Michael Berger for Appellant, Alaska Central Express And since we had some divergence On our positions Factually, I'd like to reserve One minute of my time We're ready to help you, but keep track Thank you, Your Honor I'd like to go a little bit Into this whole question of What's our burden And how does this Court Review legislation That Congress enacts For constitutionality Because I think that there's An important fact here That isn't out on the table this morning And that is This is not ordinary legislation This legislation did not go through The traditional Congressional vetting machinery That is what gives rise To the normal presumptions That this Court makes In terms of the validity And rationality And constitutionality Of what Congress does normally Somebody introduces a bill It's assigned to committees In both houses eventually It has hearings It's subject to Legislative investigations There are witnesses There is public testimony None of that occurred in this case This bill Was cooked up And attached as a rider At the 11th hour In a House-Senate Conference committee That was considering The appropriations bill For the Homeland Security Department Immediately after the 9-11 attacks Assuming that's correct Admitting that's correct So what? I mean, what is What are we supposed to take from that? I think, Your Honor What you need to take from that Is that at some point In the governmental process There needs to be Some scrutiny Of what this statute is Normally That would occur In the legislative process And this Court would rightly Defer to things that Congress might have thought They were doing When they enacted A piece of legislation I would submit to you That in a case like this Where there was Deliberate evasion Of the normal Congressional process Neither Judge Singleton Nor this Court Ought to be in the position Of saying, well This is what Congress Was trying to do We haven't a clue What Congress was trying to do All we have Is the statement On the floor Of the Senator Who sponsored This piece of legislation We have one complaint By a Congressman Who caught wind Of what was happening Congressman Cunningham And said on the floor This is a travesty This is one Senator Trying to put a company Out of business And you're tying That kind of legislation Onto an emergency appropriation Piece of legislation And we shouldn't be doing that We shouldn't be in the business Of enacting legislation To drive a competitor Of the Senator's friends Out of business And I want you to remember When this happened That at that time There were five airlines That were carrying bypass mail And had been for years This legislation Put one of those five Alaska Central Express Out of business Alaska Central had been Carrying this same kind of mail Under contract With the Postal Service Since 1990 I totally sympathize With what Evergreen Was going through But they got into this Two weeks before This statute was enacted After the statute Had gone through All this process So that at that time As Congressman Cunningham put it This statute was designed To get rid of one competitor The way that they did that Was to enter into Definitional gains And I think that some court Has got to look at The definitional gain That they played They set this thing up And said There are going to be Three requirements For carrying bypass mail In the Alaska system And one of those Is that you have to be A Part 121 certified carrier Okay My clients have said Under oath in this litigation That if they knew That was a requirement They would have gone out And done it Even though it would Take them a year Cost them a million dollars Or so to do This is a lucrative Business for them They almost shut out Of business entirely Because of this statute But what did Congress Do with that Or what did the Senator do With it That he swept through Congress He said We're going to say You must be 121 certified As of a year and a half ago Now if he had said As of a year and a half from now That's fair We're at least on notice If we have to do that We've got time to comply We've been in this business For a dozen years Carrying the mail Without complaint by anybody And now he tells us That as of a year and a half ago We had to go time travel And comply with a requirement That has never been a requirement Something about this process Your Honor Stinks To use a legal term And I think that Some place Whether it be in Congress Or in court Somebody has to take a look at this That's all that we're asking for here Is that The look that we never got In Congress Is something that We should have gotten in court Both sides here Both sides Both appellants Submitted affidavits below That Explained what was going on We tried to get discovery From the federal government About what was behind This legislation Judge Singleton refused The feds sought Protective orders He granted the protective orders Now to me Making it worse At the same time That he granted Their protective orders And denied us discovery He invited us to file Brandeis briefs with him To bring in All sorts of extra record stuff So that we could explain to him What the problems were With this legislation And then what did he do He wrote an opinion That said well Based on the pleadings I don't see a problem Your Honor At some point Somebody's got to look at this thing This stuff makes no sense It isn't just a bad law It's It is an unconstitutional law It has no basis There is no No backup for it As What it's got There's no governmental Legitimate governmental interest There is no legitimate Governmental interest The only thing that Judge Singleton could point to Is two things One Was the Findings that were made In the statute And two Was The senator's expressions On the floor When he Explained this addition To the Homeland Security Appropriations bill Now As the U.S. Supreme Court Put it in Lucas vs. Southern California Coastal Council Findings of that nature Are worthless as evidence What they What they mean Is that somebody's got A bright staff guy Who wrote findings And the same thing goes For statements that senators Make on the floor of the Senate As the court put it In Lucas Any legislative body That can't come up with Findings that'll support Its legislation Has simply got A stupid staff Not my words The Supreme Court's words And that's the only evidence That Judge Singleton had here There isn't anything else The evidence shows That we That we presented to them I mean all you need to do Is look at this bill What is there about This legislation That will increase Passenger service Nothing The four airlines That were left And grandfathered in To carry this kind of mail Only one of them Carries passengers At all The other three don't There is nothing In this legislation That gives those three Any incentive To carry passengers There's nothing In this legislation That penalizes them For not carrying passengers And as Mr. Stewart Told you There is an absolutely Impenetrable barrier To new airlines Coming in Who will carry passengers That was a pretext It was designed Simply to protect These four carriers And drive anybody else Either out of the market Or keep them from coming Into the market The pretextual nature Of this statute Has got to be Examined somewhere Decreased expense That's another thing They said they were Trying to accomplish There is nothing In this statute That will decrease The expense Why do I say that? Because the evidence That we submitted To Judge Singleton Shows that the way That the government Determines how much They're going to pay For this bypass Mail delivery Is based On the expenses Of those four airlines Their expenses Aren't going down And the evidence Also shows That one of those four Has higher expenses Than my client did You average us in You're going to drop The expenses You knock them out You're going to drop The expenses Okay, I think we've Got your argument in hand There's not very much Time left So why don't we save it For both of you To have for a while Thank you, Your Honor Good morning, Your Honors I'm Louis Yellen Here today from the Department of Justice For the United States With me at council table Is Scott Craigie He's counsel For the intervener Appellees I'd like to reserve Five minutes For Mr. Craigie Okay, we'll try To help you But I'll keep an eye On my time Yes, Your Honor I really have one point That I'd like to make Your Honor And that's just That the claim About whether the District Court Improperly failed To consider evidence This court does Have a line of cases That allows In a particular context Plaintiffs To submit evidence To show That a claimed Rational basis Is a pretext For arbitrary Action This is the Lockery And the Armendariz Case that Evergreen cites That context Is when there Are regulatory Enforcement actions Brought by an Executive agent Lockery Concerned Utility Refusing to Provide water Hookups Armendariz Concerned Oberzealous Housing code And as this Court's most Recent case On this issue Squaw Valley Makes very clear This context Is only in this Very particular area Where you have Regulatory officials Enforcing A regulation This line of cases Has never been Applied In an evaluation Of the rationality Of a statute Isn't rationality A factual question However? I understand It's a very lenient Strongly favoring The government The test is Did Congress Have a permissible Purpose? That's right Isn't that a Factual question? It is a Factual question And how can We then decide On the Pleadings If there's Something underlying There that we need To determine As a factual matter? Because the Factual showing Is so minimal That all When all the Court needs to be Able to decide Is that it is Conceivable That the means That Congress Selected Are rationally Related to the End that Congress Chose to pursue And that is so Minimal a showing That the Clear precedent Of the Supreme Court In Beach Communications In this Court In Dittman Say all the Court needs to do Is consider Whether or not It's conceivable That the Ends that Congress Selected But shouldn't The plaintiffs Have had an Opportunity to Introduce evidence To show that On the facts Of this case It is inconceivable Now your At least their Argument is Whether they're Right or not On the facts I don't say Their argument is All of the Purposes that They had This clearly Came from Purposes This didn't Happen by accident But their Argument is That all the Purposes that Were there Were impermissible And on the Facts as they See them It is inconceivable That Congress Had a permissible Purpose Shouldn't they Be allowed factual Proof on that Question No your Honor because I Would submit that That claim is Plainly wrong We showed We showed Conceivable Rational connections And how did you Show that By point We gave an Explanation for Example for the 75% Passenger You provided Facts We gave an Explanation That just From General knowledge That a court May have Shows a Connection between The ends that Congress Chose to pursue What's the general Knowledge that a Court may have That you relied on In the case of The 75% Passenger requirement Shall I use that Example since that's One of the most Contested Sure sure Let's do that The concern that Congress had Among other things One of the purposes That Congress Chose to pursue Here was to Ensure reliable Passenger service The as we've Explained in the Brief there's a Limited pool of Money that Is available To support Reliable Passenger service It's concerned That the market Is sufficiently Unstable that If there were Too many people Too many entities Receiving The funds That Congress Chose to spend This would Undermine the Stability of The service That sounds like A factual proposition And that is Exactly right And it shouldn't Be allowed to Come in with evidence And say that is Preposterous That is a Unconceivable That Congress Actually had that Purpose That's more precisely Their argument but And they can't Produce any evidence To support that No they can't Your Honor Oh my goodness The purposes are Absolutely clear From the statute And the means are Absolutely clearly Related to the Purposes of the Statute The 75 percent Passenger requirement For example Congress was concerned That if another Carrier came in It had Imagine if the new Carrier came in And bumped out Through competition Bumped out the Original carrier Congress wanted to Make sure that there Would be at least 75 percent capacity In the new carrier So that Alaskans Wouldn't lose a Dramatic number of Passenger seats Or alternatively That the market was Strong enough to Support two carriers That may be true That may be exactly What Congress had in mind Or it may be conceivable That Congress had that In mind They say it's not And at least as I Hear them They say we were Allowed Not allowed To produce Any evidence To try to persuade The judge that our Position was right That's exactly right And that's exactly Consistent with this Court's governing Precedent and the Governing precedent Of the Supreme Court Each communication Says that So you get to Introduce facts and They don't That's what I hear Legislative facts Facts that Congress Identified and Your Honor There's no Two ways about it The standard is Amazingly sympathetic To the government Purposes I understand What was the Legislative fact That about the Part 121 Back date There had to be A part 121 Carrier a year And a half Earlier than Well Congress Was concerned about Promoting safety And one Part 121 Has more Carrier requirements Than the part 135 So the part 121 is directly Related to one of The purposes Namely the safety Of the air Transport Of the Air The Part 121 Is entirely Imaginary or Whimsical The reasons for The legislation Some of it is Mischievous on Space But that's none Of our business I think separation Of powers Leaves us With a very Limited amount Of leverage On Scrutinizing The behavior Of Congress I think that's Exactly right In this particular Field The field of Economic regulation Especially It doesn't mean We approve of it It's just we don't Have anything to say on it That's exactly right The court can think That Congress was Flat wrong In the choice That it made But as long as And this is from Beach Communication As long as the Plaintiff doesn't Negative every Conceivable basis Which might support The statute Every conceivable Basis That might support The statute I understand that That makes perfect Sense to me What I'm having Trouble with Is that These plaintiffs Say we have Evidence That will Convince the Judge If he's willing To look at it That we By which we can Negative every Conceivable basis And the judge Says I'm sorry I'm not going to Look at your evidence But that's Your honor That's just the way Rational review Of economic Legislation Works You cannot I mean again From But if that's Right No plaintiff Can ever Introduce any Evidence In a rational Basis Question That as Long as a Conceivable basis Is apparent That's exactly Right again Your honor From Beach Communication Well apparent Is different from True Their argument Is simply not True And as soon as You understand The facts It is They say It is Inconceivable That Congress Had that purpose I just don't think That presenting Evidence can Produce the Since the question Is whether it is Conceivable Not whether Congress actually Had one purpose Or another It doesn't matter Whether or not Plaintiffs have Evidence that they Could introduce To show that Congress did not In fact have This particular Here's This is kind of A metaphysical Question What do we mean By congressional Purpose What if What if they're able To say And I'm totally Making this up Yes your honor Hypothesis This is not A factual statement What if they show That every person In Congress Who actively Moved this legislation Forward Was doing so Because they had Been paid off To do so I'm not saying That that's the case Of course I'm just saying What if they can Show that every Person who had An active part In this legislation Was being paid Off To do so Is that enough To illegitimate To delegitimate The statute I think not Your honor Because in a separation Of powers principles Which underlie This sort of Rational basis It's possible That the people Who voted for it Had no connection With it And no knowledge Of it If they thought About it Could have had A conceivable purpose It doesn't matter That everybody Who was involved Was bribed That's right Your honor Because The point here Is this is a question The rational basis Review test is set On separation Of powers principles That would be Obviously deplorable If that was the way Congress Arrived at certain Legislation But the point Of rational basis Review is Those sorts of Problems are meant To be remedied By political solutions Not by judicial solutions I mean In beach communications If I can The court The supreme court Said a legislative Choice is not subject To courtroom fact Finding and may Be based on rational Speculation Unsupported by evidence Or empirical data It's just not The sort of thing That is amenable To the presentation Of evidence As long as there's A conceivable basis Which can justify The classifications That Congress Chose to use If we follow that Then is it your Conclusion that If we go down The road The appellants Want and allow The fact finding To come in Then we would Be legislating In effect Because we would Now change The legislation To allow Differences relative To 121 Differences to Load carry And whatever So that we could Legislate on the bench Who gets in Is that the point? That's exactly right Your honor It's exactly the Sort of detailed Nitpicking concerns That appellants Are presenting That are subject To legislative Policy decision Making not to Judicial fact Finding And the ugly Underbelly of the Congress Is something They're going to Have to deal with In Congress Politically Or if there was A crime committed Somebody ought To indict somebody Precisely right Your honor Is that your point? That's precisely Right your honor And it's clear From this litigation That appellants Did have A representative In Congress That voiced Objection to the Legislation Nevertheless Both houses of Congress Passed this Legislation It was signed By the president That's all The constitution Requires To make Valid Legislation Going back To the Motion That was Dismissed The judge Recites Verbatim The Findings of Congress So if We find Any rational Basis In those Findings Which he Used If we Go beyond That Whether it's True or not As long as you Pass that rational Test That's exactly Right your honor We don't have to Like the legislation We could think That it was Misguided That it was Unwise That it was Unfair But as long As Congress Selected legitimate Ends And I think It's very hard To dispute That providing Reliable safe And affordable Passenger and freight Service Is anything But a legitimate Government Well it's Exclusionary Legislation Is always Like that I mean somebody Is going to get Hurt here And hurt Bad Exactly right Again in Beach Communication The Supreme Court Said Look Anytime That the Congress Has to make A line Drawing Determination There are There could Be some Who are Favorably Treated And some Who are Unfavorably Treated That line Drawing The court Said and I'm Quoting is Virtually Unreviewable Virtually Unreviewable Precisely Because it Returns on all Of these Particular Facts that Congress Can legitimately Consider Well there's A bill Of attainder Claim here There is a bill Of attainder Claim I'm happy To address Any Well that's One way to Get around That's one way To address Your argument Well if Congress Actually enacts A bill of Attainder That is a Problem That's exactly Right Your Honor But I think Our brief Demonstrates That that Is very Far from The case Here I'm happy To go through The argument If that would Be helpful to The court But I'm also Happy to I was just Making a comment That if this Was a bill Of attainder That's one way To address The horribles Of this That's exactly Right that's An outside Stop on Congress's Ability to Enact otherwise Largely Discretionary Legislation That's exactly Right Your Honor Can I get at Your definition Of conceivable To take an Outer boundary Sort of example Sure Not related to This case Is it conceivable That space Aliens are Visiting this Planet in Invisible and Undetectable Craft Is it conceivable That's my Question Yes it's conceivable And that would Be a basis for Sustaining Congressional Legislation If Congress If the person Sponsoring the bill Said space Aliens are Visiting us Invisible and Undetectable craft And that's the Basis for my Legislation We can't touch It If Congress Made a finding Of that sort That's my Question Your Honor I think if Congress made a Finding of that Sort I think Your Honor it Would not be Appropriate for This court To second guess That Okay in Other words Conceivable is Any piece of Nonsense is Enough Your Honor I don't think It is largely Unbounded It is not It is not Completely unbounded There are There are the Outlines How can you say It's not completely Unbounded when you Agreed with my Absolutely preposterous Example of what's Conceivable Because there are Certain cases Your Honor where Congress makes Specific findings That are Directly at odds With the ends That Congress Selected And those Very few cases Where the Supreme Court Has said There is a Mismatch between Rational means Excuse me Between means and Ends Because Congress Or oftentimes It's a state Legislature The legislature Said it was going To do X But it adopted Means that on Their face Obviously do not X In that sort Of context The courts can Say there's a Mismatch We are so far From that here Your Honor And we're also So far from the Space aliens Example that I think that This is just Could I ask you About another thing This is not From outer space This is from the Trial judge's Opinion Yes your Honor In order He says The legislative Facts that the Government uses In support of Its motion Are not beyond The scope of Materials to be Considered On a motion To dismiss And I guess there's Some authority For that Yes your Honor And he goes on To say And their Authenticity Is not questioned I understand From the Argument that Was made by Mr. Stewart But the Authenticity Of these Facts was Questioned So what does This mean I have to Look at The facts I mean They're not He says it's Not questioned It sounds like The language one Would use In a summary Judgment motion Saying there's no Material question I would have Thought that it Might be an Evidentiary standard That there's not A concern with Like you know Getting It's an Interesting Concept Right but I guess my The concise Response I would Have to your Well settled That congressional Findings in a piece Of legislation Are sufficient But not necessary Basis Whatever they Are they're Bulletproof In court That's right Your Honor Unless there's An explicit Mismatch Between means And end Which we don't Have here Well also Aren't we These findings In fact are Pretty tightly Wound around The specificities Of the carriers And what's Not to say Is not The best And So I Don't think We should Be Applying That Categorically Or There's a Disputed issue Of fact There It's how You cut The line And so If we go Into fact Finding We say We don't Like the Line That's Exactly And it seems To me That we have To question Whether the Line is All right Relative To the Governmental Purpose And to The law That's Exactly Right Because once The line Comes down It's All game Over That's Precisely Our point Yes Your Honor We've Detained you A little Into your Co-counsel's Time Thank you Your Honor But the Space aliens Are responsible May it Please the Court I'm Scott Craig I represent The intervener Defendants Three of The mainline Carriers About which Much has Been said I'd like To just Offer a few Comments To perhaps Bring the Argument Back down To earth First Rational Relationship Is not An evidentiary Test It's a Logical Examination That the Court Does go Through And should Go through But it Does not Based on A scintilla Of evidence Or substantial Evidence Or proof beyond A reasonable Doubt We don't get Into that Rational Relationship Excuse me I didn't mean to Interrupt you That's what I Was trying to Get at When the Judge Listed Exactly what Congress Found Then you Use the Rational Test On that Not a Fact-finding Test Right and That's only That finding Is just One of the Issues That's the Purpose Then is there A rational Connection Between the Means chosen And that Purpose And I think So I don't Think we get Into the Evidence I don't Think we Need to And indeed If the Plaintiff Were correct You could Not have A motion To dismiss In a Due process Case we know That is not the Case and it Would be bad Law if it Was This Case is Also easier Than the Discussion thus Far has Suggested Because The purpose As set Forth in The Findings Was not To increase Passenger Service And freight Service But if you Read it Carefully this Was an Amendment to A long Existing program And section 3002 B12 Of the Findings Says that It was to Ensure that Alaskans Continue To have Affordable Reliable And safe Passenger Service So you Don't have To prove that The means Chosen Will promote Additional Benefits Alaskans So Congress Was concerned That the System Has been Set up And run Pretty Effectively Not perfect But it Has served Alaskans Well Wanted to Make sure That that System Is not Unduly Threatened And that There is not A risk Of instability You don't have The government Doesn't have To prove that There was Instability We rely On The logic That If you Start out From the Proposition That we can Agree on Several things One Congress May properly Use mail Revenues To promote Non-mail Services Second That an Increase In the Average Third At some Point Dilution Will be So great That the Amount of Mail revenues Going to Any particular Carrier Will no Longer be Sufficient To Underwrite The non-mail Services And fourth I think we Can all Agree That Congress May limit The number Of carriers To avoid Undue Dilution If we Agree on All that The only Question is How many And what Criteria Are used To select None of Those are Factual Issues I think we Understand well That argument Thank you Very much You have Each saved A little But not much Why don't We start Out with A minute Let me Get to What I Think is The heart Of the Matter With the Questions About fact Finding Because I Think that's Important And we Are not Suggesting That you Get into A full Blown Trial With Preponderance Of the Evidence And we Are not Suggesting That the Trial Court Becomes A secondary Legislature But the Law is Clear When you Go look At Minnesota Versus Cloverleaf Creamery Parties May introduce Evidence What's The test We The Plaintiffs Have to Convince The Court That the Evidence Is True So we Put in The Evidence It's Not that We would Like to We Submitted It It Was Never Excluded It's In The Record And The Trial Court Simply Ignored It Once We Do That We Don't Get Into Full Blown Fact Finding As a Matter Of Fact Yet Again We Have This Third All The Government Has To Do Is Come Back And Say They're Wrong Here Are Some Evidence And It Is Fairly Debatable Okay You're Outside Your Minute And We Understand The Argument Thanks Let Me Follow Up Back To The Supreme Court Comment In Lucas Versus South Carolina Coastal Council That The Congressional Findings Are Not Evidence What's Important In These Cases Is What's The Evidence That Supports Those Findings Just Like We Do With Trial Courts And Juries And Appeals Nobody Has Had A Chance To Examine What The Heck Is Behind Those Legislative Findings They Are Not Evidence What's Important In These Cases The Evidence That Supports Those Legislative Findings Nobody Has Had A Chance To Examine What The Heck Is Behind Those Nobody Has Had A Chance To Examine What The Heck Is Behind Those Legislative Findings They Are Not Evidence