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.

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