Amicus Curiae Brief — Love Terminal Partners, L.P., et al., Petitioners v. United States
Supreme Court briefMar 15, 2019
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No. 18-1062
IN THE
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LOVE TERMINAL PARTNERS, L.P., AND
VIRGINIA AEROSPACE, LLC,
Petitioners,
V.
UNITED STATES,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit
BRIEF OF JETBLUE AIRWAYS
CORPORATION AS AMICUS CURIAE IN
SUPPORT OF PETITIONERS
ROBERT LAND
BRIAN FRIEDMAN
JETBLUE AIRWAYS
CORPORATION
27-01 Queens Plaza North
Long Island City, NY 11101
ELIZABETH PAPEZ
Counsel of Record
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036
(202) 955-8608
epapez@gibsondunn.com
Counsel for Amicus Curiae
i
QUESTIONS PRESENTED
1.
In assessing whether the government
has effected a compensable taking, may courts treat
real property as worthless simply because the owner
was not generating positive cashflow from the
property at the time of the taking?
2.
In determining whether the taking of
property has any economic impact on its owner, may
courts
ignore
reasonable,
investment-backed
expectations that a regulatory environment is likely
to change and, in fact, has been changed by the very
law that effects the taking?
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................... iii
INTEREST OF AMICUS CURIAE ......................... 1
SUMMARY OF ARGUMENT .................................. 3
REASONS FOR GRANTING THE PETITION ...... 6
I.
II.
The Airline Industry Depends on
Private Investment in Regulated
Property ............................................... 6
A.
The Value of Property
Interests in the Airline
Industry Is Tied to
Expectations of Future
Regulatory Treatment.............. 7
B.
Private Investment Is
Critical to Airline Industry
Competition and Growth ......... 9
The Federal Circuit’s Decision
Will Stifle Critical Industry
Investment and Access ..................... 12
CONCLUSION ....................................................... 15
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Lost Tree Vill. Corp. v. United States,
787 F.3d 1111 (Fed. Cir. 2015) ............................ 13
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992) .............................................. 4
Palm Beach Isles Assocs. v. United
States,
231 F.3d 1354 (Fed. Cir. 2000) ............................ 13
Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency,
535 U.S. 302 (2002) ................................................ 3
United States v. 564.54 Acres of Land,
More or Less, Situated in Monroe &
Pike Ctys.,
441 U.S. 506 (1979) ................................................ 4
United States v. Miller,
317 U.S. 369 (1943) ................................................ 4
United States v. Pewee Coal Co.,
341 U.S. 114 (1951) ................................................ 3
iv
Other Authorities
Aaron N. Gruen, Takings, Just
Compensation, and the Efficient Use
of Land, Urban, and Environmental
Resources, 33 The Urban Lawyer 517
(Am. Bar. Ass’n 2001) .......................................... 14
ACI World Report 49 (Aug. 2017),
available at https://aci.aero/news/aciworld-report/..................................................... 9, 15
American Society of Civil Engineers,
2017 Infrastructure Report Card,
available at
https://www.infrastructurereportcar
d.org/the-impact/economic-impact/
(last accessed Mar. 6, 2019) ................................... 9
Amy Zipkin, Private Money Takes on
Bigger Role in Airport Projects, N.Y.
Times (Mar. 3, 2019), available at
https://www.nytimes.com/2019/03/03
/business/airport-projects-privateinvestment.html ..................................................... 9
Bd. of Governors of the Federal Reserve
Sys., Branch & Agency Examination
Manual § 3100.1 (Real Estate Loans)
(Sept. 1997) ............................................................ 8
v
FAA, National Airspace System Capital
Investment Plan – FY2018-2022 4,
available at
https://www.faa.gov/air_traffic/public
ations/cip/files/FY18-22/FY1822_CIP_Complete_Nov_2017.pdf
(last accessed Mar. 6, 2019) ............................... 6, 7
Henry N. Butler, Regulatory Takings
After Lucas, 3 Regulation 76 (Cato
Rev. of Business & Government
1993). .................................................................... 14
Jet Blue Airways Corporation Annual
Report, at 31 (Dec. 31, 2015) ......................... 10, 11
McKinsey & Co., The Rise and Rise of
Private Markets: McKinsey Global
Private Markets Review 6 (Feb. 2018) ................... 5
Michael D. Rocca, The Rising
Advantage of Public-Private
Partnerships, McKinsey & Co. (July
2017) ..................................................................... 13
Statement of D. Barger, President and
Chief Executive Officer, Jet Blue
Airways Corporation Annual Report
(Dec. 31, 2010) ...................................................... 11
Susan Rose-Ackerman, Against Ad
Hockery: A Comment on Michelman,
88 Colum. L. Rev. 1697 (1988)............................... 5
1
INTEREST OF AMICUS CURIAE1
JetBlue Airways Corporation is the sixth
largest airline in the United States, carrying over 42
million passengers to over 100 destinations annually.
Since its founding in 1998, JetBlue’s fleet has grown
to include over 250 aircraft that, collectively,
complete more than 1,000 daily flights. Today, 19
years after its inaugural flight, JetBlue thrives as
the sole post-1978 deregulation airline to survive
into its second decade as a stand-alone carrier that
has not merged, been acquired, or sought bankruptcy
protection. It is the largest domestic airline at
several airports across the nation, and J.D. Power
awarded JetBlue the “Best Customer Service” award
for 12 years in a row.
JetBlue’s success is due in large part to its
access to key airport terminals. Since its infancy,
JetBlue has both invested in airport infrastructure
and battled for access to gates—including at the
Lemmon Avenue Terminal at issue in this suit—so it
could compete with major legacy carriers. While
JetBlue has succeeded in securing gates at most key
airports, the competition for access is fierce and
shows no sign of abating because the demand for
gates at key airports continues to exceed supply.
1 Pursuant to Rule 37.2(a), amicus curiae timely notified the
parties of its intent to file this brief. All parties consented. In
accordance with Rule 37.6, no counsel for a party authored this
brief in whole or in part, and no person or entity other than
amicus curiae or its counsel made a monetary contribution
intended to fund the brief’s preparation or submission.
2
JetBlue thus has a strong interest in
encouraging
private
investment
in
airport
infrastructure—an interest the Federal Circuit’s
decision imperils. The decision reverses a $133.5
million award of just compensation for government
action that nullified petitioners’ leasehold interest in
gates at Love Field Airport and sanctioned the
destruction of their new terminal there. Pet. 1. The
court’s reasoning departs from settled takings law in
two fundamental respects: (i) it conditions the
existence of a taking on whether property “revenue
exceed[ed] * * * carrying costs” in the period before
the challenged government action; and (ii) it confines
the analysis of “reasonable investment-backed
expectations” to “the regulatory environment at the
time of” the adverse government conduct. Pet. App.
19, 21.
The petition warns that this decision
“undercuts the ability of private parties to make
prudent investments with the security” the Fifth
Amendment guarantees, because the Federal
Circuit’s definition of economic value effectively
immunizes the government from just compensation
claims by those who “invest for the long haul,
understanding that they will incur carrying costs or
operate a rental property at a loss in order to build
future value.” Pet. 34. In an industry in dire need of
private investment to meet growing customer
demand, that result is dangerous indeed.
JetBlue’s experience in terminal access and
investment illustrates the point, and highlights the
practical and economic impact of the Federal
Circuit’s misguided decision. JetBlue has grown
through a series of investments in gate access and
terminal infrastructure that have enhanced
3
competitive service offerings and lowered airfares
across the industry. The resulting economic value to
shareholders, customers, crewmembers, and the
traveling public is undeniable.
Yet under the
Federal Circuit’s decision, the government could
destroy these investments without just compensation
simply because their “revenue” did not exceed
“carrying costs” at a particular moment. Pet. App.
19. This approach to the Fifth Amendment’s just
compensation guarantee is divorced from settled law
and market realities, and absent review will
threaten precisely the type of long-term investment
that enabled JetBlue’s success and remains vital to
airline industry growth and competition going
forward.
SUMMARY OF ARGUMENT
The legal and economic problems with the
Federal Circuit’s decision go well beyond the
egregious facts of petitioners’ case. The court’s view
of the economic value of long-term airport access and
infrastructure investments will chill essential
private financing of growth initiatives on grounds
that have no valid basis in law or market practice.
That is a result the country can ill afford in the face
of increasing demand for air travel and competitive
service offerings out of aging and congested airports.
The Fifth Amendment’s protection of private
rights in regulated property is well settled. “When
the government physically takes possession of an
interest in property for some public purpose, it has a
categorical duty to compensate the former owner.”
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l
Planning Agency, 535 U.S. 302, 322 (2002) (citing
United States v. Pewee Coal Co., 341 U.S. 114, 115
(1951)). Just compensation is likewise required
4
“where regulation denies all economically beneficial
or productive use of land.” Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1015 (1992).
In assessing the “economically beneficial or
productive use of land” for just compensation
purposes, this Court has long relied on the objective
“concept of fair market value,” United States v.
564.54 Acres of Land, More or Less, Situated in
Monroe & Pike Ctys., 441 U.S. 506, 511 (1979). This
value reflects “what a willing buyer would pay in
cash to a willing seller” at the time of the taking,
United States v. Miller, 317 U.S. 369, 374 (1943),
which in turn reflects “reasonable investment-backed
expectations” about the property’s current and future
use and regulatory treatment, e.g., Pet. 26 (citing
authorities).
The Federal Circuit’s decision breaks from these
controlling and foundational underpinnings of
property valuation in precisely the way the petition
describes. See Pet. 20-27. In so doing, the decision
does indeed subject “[a]ny vacant building,
undeveloped land, or underperforming leasehold” to
an “uncompensated Lucas taking.” Id. at 20. But
that is not all. The Federal Circuit’s decision goes so
far as to subject perfectly performing leasehold or
property interests to uncompensated government
destruction by employing an economic value test
divorced from the concept of fair market value this
Court has long applied to the Fifth Amendment’s just
compensation guarantee. The Court need look no
further than JetBlue’s history to understand why.
As detailed below, JetBlue grew out of a series
of discrete airport investments that over time
resulted in expanded service offerings, lower fares,
and other obvious economic benefits to JetBlue
5
shareholders, customers, crewmembers and the
traveling public.
These benefits are publicly
documented across a range of financial metrics. But
under the Federal Circuit’s decision, any number of
them could be judged worthless—and thus fair game
for uncompensated government destruction—simply
because their “revenue” did not “exceed * * * carrying
costs” at a particular time. Pet. App. 19.
This approach to assessing the economic value of
property rights cannot be reconciled with the
extensive factual record in this case. Pet. 16-19.
Further, and critically, it disregards an array of
economic
measures
and
investment-backed
expectations that define property valuation and
investment in the real world. JetBlue’s investment
in new gates and routes, at slot controlled airports or
not, are planned with a “ramp up” period often as
long as several years. And a cursory review of public
information reveals that JetBlue and other carriers
assess the market value of such investments through
the lens of multiple financial metrics and anticipated
regulatory treatment, not the artificial snapshot of
“revenue” to “carrying costs” and “current regulatory
treatment” the Federal Circuit used to define
petitioners’ protected property rights out of
existence. Pet. App. 19, 21.
“Takings law should be predictable * * * so that
private individuals confidently can commit resources
to capital projects.” Susan Rose-Ackerman, Against
Ad Hockery: A Comment on Michelman, 88 Colum.
L. Rev. 1697, 1700 (1988). The stakes are high: in
2017 alone, private investment in North American
real estate exceeded $70 billion. See McKinsey &
Co., The Rise and Rise of Private Markets: McKinsey
Global Private Markets Review 6 (Feb. 2018). Such
6
investments are particularly critical in the airline
industry, where private funding of regulated
facilities will remain essential to meeting increased
consumer demand and facilitating competitive
service offerings. The Federal Circuit’s decision will
deter and destabilize such investment in conflict
with this Court’s precedents and market realities.
Review is warranted.
REASONS FOR GRANTING THE PETITION
I.
The Airline Industry Depends on Private
Investment in Regulated Property
A 2018 Federal Aviation Administration Report
acknowledges that “[a]ccess to a reliable worldwide
aviation network is essential to the health of the U.S.
economy.”2 That it is. In 2014 alone, United States
aviation accounted for 5.1% of United States gross
domestic product and generated 10.6 million jobs and
$447 billion in earnings.3
Government statistics further demonstrate that
passenger demand for air travel is “grow[ing] at a
faster rate than the economy.”4 In 2014, air carriers
transported over 871.8 million passengers.5 That
number has grown, and in 2018 JetBlue alone
transported approximately 42 million passengers.
2 FAA, National Airspace System Capital Investment Plan –
FY2018-2022
4,
available
at
https://www.faa.gov/air_traffic/publications/cip/files/FY1822/FY18-22_CIP_Complete_Nov_2017.pdf (last accessed Mar.
14, 2019).
3 Id.
4 Id. at 5.
5 Id.
7
Further, from now until 2037, the FAA expects that
passenger air travel will grow by 2.4% on an annual
basis.6
The airline industry’s ability to accommodate
this traffic depends on access to airport terminals
and infrastructure, which in turn depends heavily on
both future regulatory treatment and private
investment. JetBlue’s own history illustrates the
point, and highlights how the Federal Circuit’s
departure from this Court’s precedents and basic
market economics will threaten industry access to
regulated
facilities
and
capital-intensive
infrastructure going forward.
A. The Value of Property Interests in the
Airline Industry Is Tied to Expectations
of Future Regulatory Treatment
When JetBlue began operations at John F.
Kennedy International Airport (“JFK”) in 2000, it
was fully dependent on the unprecedented slot
exemptions it received from the United States
Department of Transportation.
Only with this
federal grant of access was JetBlue able to compete
successfully with legacy carriers during the five peak
slotted hours of the day. In connection with its
commitment to access, JetBlue subsequently lobbied
the Long Beach City Council to amend its local
airport slot rules to extend the time in which JetBlue
had to “use or lose” its twenty-seven slots at LA’s
then-dormant secondary airport, Long Beach
Municipal Airport. JetBlue likewise negotiated for
years with the US DOT and the FAA to gain access
6 Id.
8
to slots at New York’s LaGuardia Airport, Chicago’s
O’Hare Airport, and other federally-regulated
terminals.
In 2006, JetBlue’s access efforts included
negotiations for space at the Lemmon Avenue
Terminal at issue in this case. Isolated from other
carriers and newly constructed, the Lemmon Avenue
Terminal fit JetBlue’s growing low-fare, high-frills
brand, and provided an attractive option for serving
the Dallas market despite then-current regulatory
restrictions. Well aware that changes to the Wright
Amendment were required to accommodate its
desired route strategy for the Lemmon Avenue
Terminal, JetBlue began discussions with federal
officials, airport officials, and members of Congress.
The Wright Amendment Reform Act (“WARA”)
mooted those efforts, and stymied JetBlue’s hopes of
gaining competitive access to Dallas through Love
Field.
Notwithstanding this setback, JetBlue—like
many other airlines—has continued to invest in
airport access and infrastructure subject to
investment-backed expectations about current and
future regulatory treatment. The law has long
countenanced such expectations as both reasonable
and necessary to the valuation of long-term, capitalintensive property investments. See, e.g., Pet. 20-29
(citing authorities); Bd. of Governors of the Federal
Reserve Sys., Branch & Agency Examination Manual
§ 3100.1 (Real Estate Loans) at 13-14 (Sept. 1997)
(emphasizing that a future “change in zoning” could
“cause material changes to reported [property]
values” and impact the “useful life of an appraisal or
evaluation” of a property as well as its cost of
capital). Yet the Federal Circuit’s opinion disregards
9
these legal and economic precedents in favor of an
artificial inquiry focused on the “current regulatory
regime.” Pet. App. 21. This aspect of the opinion
alone warrants review.
B. Private Investment Is Critical to Airline
Industry Competition and Growth
Although JetBlue has long and successfully
lobbied for expanded access at existing terminals,
regulatory authorizations at such facilities will not
alone allow JetBlue or other carriers to keep up with
the increased demand for air travel. Investment in
new facilities is necessary. According to Airports
Council International (“ACI”), procuring investment
“remains a challenge for all but the most
commercially successful airports,”7 in large part
because “airports are asset-intensive businesses that
require significant capital investment that may take
many years to recover.”8
Because the federal government’s contributions
are typically time consuming and often fall short of
the
funds
necessary
to
revamp
airport
infrastructure,9 private investment must fill the gap.
7
ACI World Report 49 (Aug.
https://aci.aero/news/aci-world-report/.
2017),
available
at
8 Id.
9 See American Society of Civil Engineers, 2017 Infrastructure
Report
Card,
available
at
https://www.infrastructurereportcard.org/theimpact/economic-impact/ (last accessed Mar. 6, 2019)
(showing a $42 million funding gap in airports); Amy Zipkin,
Private Money Takes on Bigger Role in Airport Projects, N.Y.
Times
(Mar.
3,
2019),
available
at
https://www.nytimes.com/2019/03/03/business/airport-projects-
10
JetBlue’s experience again illustrates the point. In
2008, JetBlue opened a state-of-the-art terminal,
known as “T5,” at JFK Airport in New York. In its
current state, T5 has added 29 gates at JFK,
allowing JetBlue and other airlines to grow in New
York, serve more passengers, and relieve airport
congestion. So, too, JetBlue invested $75 million in
new gates at Washington’s Reagan National Airport
in 2014, understanding the value and return time on
this investment could vary based on a variety of
factors including future regulatory treatment.10
JetBlue is now involved in a proposal for an
additional terminal development project at JFK
Airport notwithstanding the existence of slot
restraints.
Like petitioners’ investment in the
Lemmon Avenue Terminal, JetBlue’s investment in
this project was informed by certain predictions,
notably that with enhanced air traffic control
efficiencies, the FAA’s slot constraints will one day
relax. Such predictions often and rightly accompany
investments in airport infrastructure, which JetBlue
and other stakeholders do not evaluate solely on the
parochial revenue-to-cost metric the Federal Circuit
seized upon to reverse the just compensation
judgment in this case. Instead, these sophisticated
stakeholders assess and forecast the value of access
private-investment.html
(citing
an
“Airport
Council
International report released in 2017 estimat[ing] that
airports would need almost $100 billion for capital projects
over the next five years, but would only be able to finance
about half that amount.”).
10 See, e.g., JetBlue Airways Corporation Annual Report, at 31
(Dec. 31, 2015).
11
and infrastructure investments over time and a
variety of financial metrics that are evident from
public
market
information
and
long-term
performance results,11 but are disturbingly absent
from the Federal Circuit’s new takings test.
For example, from 2010 through 2016, JetBlue
invested in access to new routes from Boston Logan
to Washington Reagan National Airport (2010),
Washington Reagan to Jacksonville (2014), Boston
Logan to Cleveland (2015), and Boston Logan to
LaGuardia (2016).
The statistics on increased passenger travel and
fare reductions following these investments are
noteworthy. For example, on the Boston-LaGuardia
route, average daily passenger traffic increased by
approximately 40%, and fares fell by a maximum of
69%, over the prior year. On the Boston-Reagan
National route, industry passenger traffic per day
increased by over 70% over the prior year,
accompanied by a maximum fare decrease of 73%
over competing fares in that time period, and an
average fare reduction of around 24% over the sixmonth period before entry to the end of the sixmonth period following entry.12
The long-term economic value that these
investments delivered to JetBlue shareholders,
customers, crewmembers and the traveling public
11 See, e.g., id.; Statement of D. Barger, President and Chief
Executive Officer, JetBlue Airways Corporation Annual Report
(Dec. 31, 2010) (describing airport access and infrastructure
investments as part of a “Building Year”).
12
Statistical sources on file with amicus curiae.
12
are undeniable, just like the economic value the
record ascribes to various investments at Love Field.
The Court of Claims “awarded $133.5 million in just
compensation” for “the value of petitioners’ interest
in the Master Lease and terminal,” Pet. 16 (citing
App. 133-39, 147-54), which included “six gates” at
Lemmon Avenue as well as expansion options and
various real estate interests, id. at 10. This award
seems eminently reasonable, if not modest, in
relation to record evidence of other asset values at
Love Field, including evidence that in “2014,
Southwest paid $120 million to acquire the lease
rights to two of the 20 gates” there. Id. at 32. The
value of gate access at Love Field is further reflected
in public sources stating that “by 2015, Delta
reported that it had gained around $230 million in
revenue a year from customers who shifted from
flying out of [Dallas-Fort Worth International
Airport] to Love Field.” Id. (internal quotation
marks and citation omitted).
All of these significant real-world valuations
concern long-term investments in regulated airport
access and infrastructure that the Federal Circuit’s
opinion deems completely worthless if investment
“revenues” do not “exceed * * * carrying costs” at a
particular moment in time. Pet. App. 19. That
makes no sense.
II.
The Federal Circuit’s Decision Will Stifle
Critical Industry Investment and Access
JetBlue is currently the largest domestic or
international carrier at several airports across the
nation, including JFK, Fort Lauderdale-Hollywood
International Airport, and Boston’s Logan Airport.
However, JetBlue and other carriers must pursue
additional access and new infrastructure to continue
13
to grow and meet increasing customer demand. For
this reason, the Federal Circuit’s decision is not only
contrary to law and industry history; it is also a
significant impediment to future competition and
growth in the airline and other sectors that depend
on long-term private financing for capital-intensive
investments.
The benefits of such investments are well
documented. Private financing of public facilities
can “mitigate the overruns and schedule delays that
plague traditional infrastructure project delivery by
clearly delineating governance, allocating shared
risk, integrating resources, applying best practices,
and establishing a life cycle-long perspective of costs
and accountability.” Michael D. Rocca, The Rising
Advantage of Public-Private Partnerships, McKinsey
& Co. (July 2017). Yet such investment is exactly
what the Federal Circuit’s decision unjustifiably
deters in contravention of its own precedents and
controlling decisions from this Court.
Federal Circuit decisions recognize that “in the
real world, real estate investors do not commit
capital * * * to undevelopable [or otherwise useless]
property.” Lost Tree Vill. Corp. v. United States, 787
F.3d 1111, 1118 (Fed. Cir. 2015) (quotation marks
and alteration omitted); see also, e.g., Palm Beach
Isles Assocs. v. United States, 231 F.3d 1354, 1363
(Fed. Cir. 2000) (“A purchaser who pays a
substantial price for a parcel can be assumed to have
expectations that the parcel can be used for some
lawful purpose.”). This principle is evident in the
investments petitioners made at Love Field, and the
investments that JetBlue and other carriers have
made—and continue to make—at airports across the
country: namely, long-term private investments in
14
airport access and infrastructure that are based on
objective market and regulatory expectations, see
Pet. 20-25, as well as the Constitution’s promise that
the risk of investment loss through government
action will be offset by the guarantee of just
compensation. See id. (citing authorities).
The Federal Circuit’s decision upends this
bedrock protection and sanctions government
interference with protected property rights on terms
antithetical to investment realities and the
fundamental purpose of the Takings Clause, which is
to discipline the use of the “political process * * * to
impose the costs of a [perceived] public good on a
single owner.”
Aaron N. Gruen, Takings, Just
Compensation, and the Efficient Use of Land, Urban,
and Environmental Resources, 33 The Urban Lawyer
517, 536 (Am. Bar. Ass’n 2001). Properly applied,
the just compensation requirement imposes this
discipline by “demonstrat[ing] that actions that may
appear to be in the public interest when they are
‘free’—that is, when the political decision-makers
don’t bear the costs—are not necessarily attractive
government programs once the political decisionmakers must bear the budgetary costs of their
actions.” Henry N. Butler, Regulatory Takings After
Lucas, 3 Regulation 76, 81 (Cato Rev. of Business &
Government 1993).
That is what the record illustrates here. See Pet.
1, 31. Absent review, the decision below will not only
harm the airline industry and its customers and
investors; it will unnecessarily burden federal, state,
and local governments with the cost of lost private
investment and the political and economic impact of
decreased competition and stymied growth in the
burgeoning market for air travel.
15
For all of these reasons, the Federal Circuit’s
decision to disregard settled law and market
practices in favor of an artificial definition of
property value should be not be countenanced.
Private investment, however savvy and aware of
politics in Washington, cannot reasonably bear the
risk of loss the Federal Circuit’s just compensation
test threatens, especially in the context of airport
infrastructure improvements with long term capital
costs complicated by regulatory contingencies.13
This case is a strong vehicle for addressing the
conflict between the Federal Circuit’s decision and
this Court’s precedents, and for reaffirming a
market-based and administrable standard for
valuing long-term private investments in regulated
properties essential to competition and growth in the
airline industry and other critical sectors of the
economy.
CONCLUSION
Petitioners’ request for a writ of certiorari
should be granted.
13 See ACI World Report, supra note 7, at 49 (“[A]irports are
asset-intensive businesses that require significant capital
investment that may take many years to recover.”).
16
Respectfully submitted,
ROBERT LAND
BRIAN FRIEDMAN
JETBLUE AIRWAYS
CORPORATION
27-01 Queens Plaza North
Long Island City, NY 11101
ELIZABETH PAPEZ
Counsel of Record
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036
(202) 955-8608
epapez@gibsondunn.com
Counsel for Amicus Curiae
March 15, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.