Donald Wortman v. All Nippon Airways , 854 F.3d 606 ( 2017 )


Menu:
  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DONALD WORTMAN, individually and            No. 15-15362
    on behalf of all others similarly
    situated; WILLIAM ADAMS;                       D.C. No.
    MARGARET GARCIA; BRENDEN G.                3:07-CV-05634-
    MALOOF; MICAH ABRAMS; MARTIN                    CRB
    KAUFMAN; RACHEL DILLER; LORI
    BARRETT; CLYDE H. CAMPBELL;
    MATTHEW EVANS; THOMAS
    SCHELLY; MARK FOY; JASON
    GREGORY TURNER; STEPHEN
    GAFFIGAN; BRUCE HUT; DICKSON
    LEUNG; KEVIN MOY; RUFUS
    BROWNING; LOLLY RANDALL;
    CHRISTIAN DUKE; ANDREW BARTON;
    TRACEY WADMORE SMITH; MICHAEL
    BENSON; TORI KITAGAWA;
    WOODROW CLARK, II; JAMES EVANS;
    MEOR ADLIN; JUSTIN LABARGE;
    SCOTT FREDERICK; REIKO HIRAI;
    IREATHA DIANE MITCHELL; LARRY
    CHEN; DAVID KUO; DAVID MURPHY;
    TITI TRAN; ROBERT CASTEEL, III,
    Plaintiffs-Appellees,
    v.
    2             WORTMAN V. ALL NIPPON AIRWAYS
    ALL NIPPON AIRWAYS,
    Defendant-Appellant.
    DONALD WORTMAN, individually and            No. 15-15364
    on behalf of all others similarly
    situated; WILLIAM ADAMS;                      D.C. No.
    MARGARET GARCIA; BRENDEN G.                3:07-cv-05634-
    MALOOF; MICAH ABRAMS; MARTIN                    CRB
    KAUFMAN; RACHEL DILLER; LORI
    BARRETT; CLYDE H. CAMPBELL;
    MATTHEW EVANS; THOMAS                        OPINION
    SCHELLY; MARK FOY; JASON
    GREGORY TURNER; STEPHEN
    GAFFIGAN; BRUCE HUT; DICKSON
    LEUNG; KEVIN MOY; RUFUS
    BROWNING; LOLLY RANDALL;
    CHRISTIAN DUKE; ANDREW BARTON;
    TRACEY WADMORE SMITH; MICHAEL
    BENSON; TORI KITAGAWA;
    WOODROW CLARK, II; JAMES EVANS;
    MEOR ADLIN; JUSTIN LABARGE;
    SCOTT FREDERICK; IREATHA DIANE
    MITCHELL; LARRY CHEN; DAVID
    KUO; DAVID MURPHY; TITI TRAN;
    ROBERT CASTEEL, III,
    Plaintiffs-Appellees,
    WORTMAN V. ALL NIPPON AIRWAYS                3
    v.
    CHINA AIRLINES; EVA AIRWAYS,
    Defendants-Appellants.
    Appeal from the United States District Court
    For the Northern District of California
    Charles R. Breyer, District Judge, Presiding
    Argued and Submitted January 13, 2017
    San Francisco, California
    Filed April 14, 2017
    Before: J. CLIFFORD WALLACE, RICHARD R.
    CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.
    Opinion by Judge Milan D. Smith, Jr.;
    Partial Concurrence and Partial Dissent by Judge Wallace
    4            WORTMAN V. ALL NIPPON AIRWAYS
    SUMMARY *
    Antitrust
    Affirming the district court’s partial denial of defendant
    airlines’ motions for summary judgment, the panel held that
    the filed rate doctrine did not preclude a suit for antitrust
    damages challenging defendants’ unfiled fares, fuel
    surcharges, or special “discount” fares.
    The plaintiffs alleged that the airlines colluded to fix the
    prices of certain passenger tickets and fuel surcharges on
    flights between the United States and Asia, in violation of
    Section 1 of the Sherman Antitrust Act.
    The filed rate doctrine prohibits individuals from
    asserting civil antitrust challenges to an entity’s agency-
    approved rates. The panel held that the doctrine did not
    preclude plaintiffs’ antitrust claims premised on unfiled
    fares because there were genuine issues of material fact as to
    whether the Department of Transportation effectively
    abdicated its authority over the unfiled air fares. The panel
    held that there were also genuine issues of material fact
    regarding the DOT’s exercise of regulatory authority over
    fuel surcharges. Addressing one airline’s “discount” fares,
    which differed in both price and terms from the airline’s filed
    tariffs, the panel held that the district court did not err in
    declining to apply the filed rate doctrine given questions of
    fact regarding whether the discount fares constituted the
    same product as the fares actually filed.
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    WORTMAN V. ALL NIPPON AIRWAYS                    5
    Concurring in part and dissenting in part, Judge Wallace
    concurred in the bulk of the majority’s opinion. He
    dissented from the majority’s conclusion, in Section III,
    Subsection B of its opinion, that genuine issues of material
    fact remained as to whether the DOT effectively abdicated
    its authority over fuel surcharges that the defendants actually
    filed with the DOT. Judge Wallace wrote that the filed rate
    doctrine should not be expanded by the rule the courts must
    determine when an agency has “effectively abdicated” its
    authority, notwithstanding the actual filing of rates.
    COUNSEL
    Gary J. Malone (argued), Ankur Kapoor, and Alysia Solow,
    Constantine Cannon LLP, New York, New York; Douglas
    R. Rosenthal, Richard O. Levine, and Aymeric Dumas-
    Eymard, Constantine Cannon LLP, Washington, D.C.; for
    Defendant-Appellant All Nippon Airways.
    Tammy Tsoumas (argued), Jonathan J. Faria, and Jason Y.
    Kelly, Kirkland & Ellis LLP, Los Angeles, California; James
    H. Mutchnik, Chicago, Illinois; for Defendant-Appellant
    Eva Airways.
    Steven N. Williams (argued) and Adam J. Zapala, Cotchett
    Pitre & McCarthy LLP, Burlingame, California; Michael P.
    Lehmann and Christopher L. Lebsock, Hausfeld LLP, San
    Francisco, California; for Plaintiffs-Appellees.
    6           WORTMAN V. ALL NIPPON AIRWAYS
    OPINION
    M. SMITH, Circuit Judge:
    Defendants-Appellants All Nippon Airways (ANA),
    China Airlines, and EVA Airways (collectively,
    Defendants) challenge the district court’s holding that the
    filed rate doctrine does not preclude Plaintiffs-Appellees’
    putative class action suit for antitrust damages based on
    allegations of collusion and price fixing. We have not
    previously addressed the application of the filed rate doctrine
    to airline fares and fees. For the reasons set forth in this
    opinion, we hold that, based on the record in this case, the
    filed rate doctrine does not preclude Plaintiffs’ suit for
    antitrust damages challenging Defendants’ unfiled fares,
    fuel surcharges, or “discount” fares. We therefore affirm the
    district court’s partial denial of Defendants’ motions for
    summary judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    Plaintiffs claim antitrust violations by Defendants in
    connection with three categories of Defendants’ charged
    rates: (1) unfiled fares, (2) fuel surcharges, and (3) special
    “discount” fares.
    The DOT’s present regulations require airlines to file
    their base-fare rates to differing extents, depending upon
    whether a particular airline is included within Country
    Category A, B, or C. Airlines headquartered in or traveling
    between the United States and a Category A country need
    not file any fares. Airlines headquartered in or traveling
    between the United States and a Category C country must
    file all fares. Finally, airlines headquartered in or traveling
    between the United States and a Category B country must
    file certain, but not all, of their fares. Those fares not
    WORTMAN V. ALL NIPPON AIRWAYS                  7
    required to be filed are the “unfiled fares” at issue in this
    appeal.
    In addition to charging base-fare rates, some airlines
    impose fuel surcharges, which are additional per-ticket fees
    based on the carrier’s fuel costs. Prior to 2004, the DOT did
    not permit separate fuel surcharges. Rather, airlines were
    required to incorporate the cost of fuel into the base ticket
    price. However, in October 2004, the DOT lifted its
    prohibition on separate fuel surcharges. The parties dispute
    whether the DOT required filing of these newly allowed
    surcharges. Defendants argue that it did, citing a 1999 DOT
    statement that “all surcharges are to be filed,” while
    Plaintiffs argue that the DOT’s 1999 statement has no
    relevance to fuel surcharges given that the DOT did not
    permit fuel surcharges at the time the statement was made.
    In any event, the record reflects that regardless of whether
    the DOT required airlines to file fuel surcharges, in many
    cases airlines did file them.
    Finally, Defendant ANA offers a number of special
    “discount” fares. These include the “Satogaeri” fares and
    the “Business Discount,” “Biziwari,” or “Buz-Wari” fares,
    all of which operate in the same manner: Specifically, ANA
    files the respective fares with the DOT, then authorizes
    certain travel agents to sell tickets with more restrictive
    terms to consumers for some amount less than the filed rate.
    This lesser amount constitutes the “net fare,” which travel
    agents remit to ANA as payment for the ticket. The travel
    agent retains as a commission any difference between the net
    fare and the amount charged to the consumer.
    The terms governing the fares actually filed by ANA
    differed substantially from the terms governing the discount
    fares. For instance, while one of ANA’s publicly-filed fares
    8              WORTMAN V. ALL NIPPON AIRWAYS
    could be used for “circle trips” 1 and “double open jaw
    trips,” 2 the discounted version of that fare could not. The
    same public fare had a minimum stay of three days and
    allowed for a stopover in Japan and up to six transfers, while
    the discounted fare had no minimum stay, and did not allow
    stopovers or transfers. Some other of ANA’s filed fares
    similarly differed from their discounted versions in regard to
    the types of trips permitted, maximum stay required, the
    amount of time in advance the ticket needed to be purchased,
    restrictions on stopovers, and applicable cancellation fees.
    Plaintiff Donald Wortman filed a putative class action
    against Defendants on November 6, 2007, alleging that
    Defendants (as well as other airlines no longer in the suit)
    colluded to fix the prices of certain passenger tickets and fuel
    surcharges on flights between the United States and Asia, in
    violation of Section 1 of the Sherman Antitrust Act,
    
    15 U.S.C. § 1
    . On November 23, 2009, Defendants filed
    motions to dismiss Plaintiffs’ complaint, in part on the
    ground that the filed rate doctrine barred Plaintiffs’ claims.
    The district court granted Defendants’ motions in part on
    May 9, 2011, but denied their motions in regard to their
    assertion of the filed rate doctrine as a defense against claims
    for antitrust damages.
    1
    “Circle trips” begin and end at the same point, but involve multiple
    stopovers.
    2
    “Double open jaw” trips are those in which the origin and
    destination of the first flight are different from the origin and destination
    of the second, such that instead of traveling outbound from A to B and
    back from B to A, the customer travels outbound from A to B, but, then,
    on the second trip, from C to D.
    WORTMAN V. ALL NIPPON AIRWAYS                              9
    On September 10, 2013, following over two years of
    discovery, Defendants moved for summary judgment, again
    on the basis of the filed rate doctrine. On September 23,
    2014, the district court granted in part and denied in part
    Defendants’ respective motions for summary judgment. The
    district court held that while the filed rate doctrine applied to
    bar Plaintiffs’ antitrust damages claims based on actually-
    filed fares, the doctrine did not preclude Plaintiffs’ claims
    regarding unfiled fares, fuel surcharges, or ANA’s
    “discount” fares. 3       The district court then granted
    Defendants’ respective motions to certify its order partially
    denying summary judgment for interlocutory appeal. We
    similarly granted Defendants’ petitions for permission to
    appeal. See 
    28 U.S.C. § 1292
    (b).
    ANALYSIS
    I. The History and Application of the Filed Rate
    Doctrine
    The filed rate doctrine is a judicially created rule that
    prohibits individuals from asserting civil antitrust challenges
    to an entity’s agency-approved rates.            The doctrine
    originated in Keogh v. Chicago & Northwest Railway Co.,
    
    260 U.S. 156
     (1922). The plaintiffs in that case sought
    damages under the Sherman Act, alleging that the rates
    charged by common carriers exceeded those that would be
    charged in a competitive market. 
    Id.
     at 159–160. The rates
    in question, however, had been filed with, and approved by,
    3
    Although the order is arguably susceptible to different readings,
    Plaintiffs acknowledged at oral argument that the district court’s order
    did not implicitly or explicitly grant summary judgment in Plaintiffs’
    favor as to the unfiled fares, fuel surcharges, and discount fares. We treat
    the order as merely denying summary judgment in Defendants’ favor as
    to these rates.
    10          WORTMAN V. ALL NIPPON AIRWAYS
    the Interstate Commerce Commission (ICC). 
    Id. at 160
    . The
    Supreme Court held that the plaintiffs’ suit was precluded,
    explaining that that
    [i]njury implies violation of a legal right. The
    legal rights of shipper as against carrier in
    respect to a rate are measured by the
    published tariff. Unless and until suspended
    or set aside, this rate is made, for all purposes,
    the legal rate . . . . The rights as defined by
    the tariff cannot be varied or enlarged by
    either contract or tort of the carrier.
    
    Id. at 163
    . The Supreme Court stated that the “paramount
    purpose” of this rule was to prevent “unjust discrimination”
    between consumers. 
    Id.
    The Supreme Court reaffirmed its Keogh holding six
    decades later, in Square D Co. v. Niagara Frontier Tariff
    Bureau, Inc., 
    476 U.S. 409
     (1986), once again applying the
    filed rate doctrine to bar shippers’ challenges to carriers’
    filed rates. The Court rejected the plaintiffs’ argument that
    Congress’ stated intention to promote competition in the
    shipping industry, as set forth in the Motor Carrier Act of
    1980, implied a private right to seek antitrust damages. 
    Id. at 420
    . Rather, the Court held that absent a “specific
    statutory provision or legislative history indicating a specific
    congressional intention to overturn the long-standing Keogh
    construction,” a private antitrust suit’s “harmony with the
    general legislative purpose is inadequate” to justify
    deviation from the rule. Id.; see also Maislin Indus., U.S.,
    Inc. v. Primary Steel, Inc., 
    497 U.S. 116
    , 135 (1990)
    (“Generalized congressional exhortations to ‘increase
    competition’ cannot provide the ICC authority to alter the
    well-established statutory filed rate requirements.”). The
    WORTMAN V. ALL NIPPON AIRWAYS                  11
    Court also noted that the filed rate doctrine is not properly
    characterized as antitrust “immunity,” because other
    sanctions or equitable relief remain available. Square D,
    
    476 U.S. at 422
    . Rather, the doctrine simply precludes treble
    damages based on a hypothetically lower rate. 
    Id.
    While the filed rate doctrine initially grew out of
    circumstances in which common carriers filed rates that a
    federal agency then directly approved, we have applied the
    doctrine in contexts beyond this paradigmatic scheme, and
    most frequently in the realm of energy rates. In E. & J. Gallo
    Winery v. EnCana Corp., 
    503 F.3d 1027
     (9th Cir. 2007), we
    considered a suit by customers against a natural gas supplier.
    The Federal Energy Regulatory Commission (FERC) had
    jurisdiction over the relevant transactions. Gallo, 
    503 F.3d at 1031
    . The defendants had not filed the challenged rates
    with FERC. See 
    id.
     Rather, FERC had adopted a market-
    based approach to rate setting. 
    Id.
     at 1041–42. We held that
    “to the extent Congress has given FERC authority to set rates
    under the [Natural Gas Act] and FERC has exercised that
    authority, such rates are just and reasonable as a matter of
    law and cannot be collaterally challenged under federal
    antitrust law or state law.” 
    Id. at 1035
     (emphasis added).
    The question in that case was whether FERC had actually
    “authorized” the rates in question, the lack of a filing
    requirement notwithstanding. 
    Id.
     at 1041 (citing Pub. Util.
    of Snohomish Cty. v. Dynegy Power Mktg., 
    384 F.3d 756
    ,
    760 (9th Cir. 2004), for the proposition that “[t]he
    fundamental question . . . is whether, under the market-based
    system setting wholesale electricity rates, FERC is doing
    enough regulation to justify federal preemption of state
    laws.”). In Gallo, we found that it had. 
    503 F.3d at
    1042–
    43.
    12          WORTMAN V. ALL NIPPON AIRWAYS
    Specifically, we found that while Congress actively
    removed FERC’s authority “to set prices for first sales,” and
    thereby left “the determination of natural gas prices at the
    wellhead to market forces,” 
    id. at 1037
    , FERC continued to
    regulate rates by (1) determining ex ante that “no seller of
    natural gas could obtain market power and that market-based
    rates would be just and reasonable,” (2) issuing “blanket
    certificates for sales” of natural gas, which only then
    suspended FERC’s rate-filing requirements for those sales,
    and (3) monitoring the “operation of the market through the
    complaint process,” 
    id. at 1038
     (internal quotation marks
    omitted); see also Public Util. of Grays Harbor v. Idacorp,
    
    379 F.3d 641
    , 651 (9th Cir. 2004) (identifying ways in which
    FERC maintained regulation of market-based rates). We
    also found in a prior case that FERC “imposed various
    reporting requirements on sellers,” and that the agency had
    “clearly stated its belief that these procedures satisf[ied] the
    filed rate doctrine.” Id. at 1041 (quoting Grays Harbor,
    
    379 F.3d at 651
    ). FERC therefore had “not abdicated its
    responsibilities but ha[d] acted, albeit with a light hand, to
    authorize just and reasonable rates” such that the filed rate
    doctrine applied. Id. at 1042. We cautioned, however, that
    “a failure by FERC to exercise its statutory authority to
    approve rates would cast doubt on the underlying premise of
    the Filed Rate Doctrine.” Id. at 1040 (emphasis added).
    We considered the filed rate doctrine in a wholly
    different context in Carlin v. DairyAmerica, Inc., 
    705 F.3d 856
     (9th Cir. 2013). That appeal arose from a putative class
    action brought by dairy farmers seeking monetary and
    injunctive relief due to the misreporting of pricing data to the
    United States Department of Agriculture (USDA), which
    affected the rates for raw milk set under Federal Milk
    Marketing Orders (FMMOs) pursuant to the Agricultural
    Marketing Agreement Act, 
    7 U.S.C. § 601
     et seq. Carlin,
    WORTMAN V. ALL NIPPON AIRWAYS                     13
    705 F.3d at 864–66. We conceded that FMMO prices were
    not the paradigmatic “filed rates” contemplated in Keogh
    because (1) they consisted only of minimum prices, (2) they
    were not nationally uniform, and (3) FMMOs did not exist
    at all in some locations. Id. at 870. Nevertheless, we found
    “sufficient attributes which justify the application of the
    doctrine.” Id. In particular, we reiterated our holding from
    Gallo that “meaningful review” by an agency is not a
    prerequisite to the application of the filed rate doctrine. Id.
    at 871. Rather, “the essential question [is] whether the
    market rates were authorized by the [agency].” Id.
    (emphasis in original). In other words, we must ask
    “whether the [agency] was doing enough regulation to
    justify federal preemption of state laws.” Id. at 872 (citing
    Gallo, 
    503 F.3d at 1041
    ). “[T]he USDA did possess the
    authority and did exercise it to address problems as to the
    agency-set minimum prices for raw milk.” Id. at 873. Thus,
    the filed rate doctrine applied.
    Nevertheless, despite the general applicability of the
    filed rate doctrine, we held in Carlin that the farmers’ suit
    was not barred because the federal agency in question had
    effectively—if retroactively—rejected the FMMO prices as
    incorrect, and “the policy considerations behind the doctrine
    d[id] not justify applying the doctrine as a bar in [that] case.”
    Id. at 874. In particular, calculating damages “would not []
    involve the kind of ‘hypothetical’ speculation about agency
    decisions that Keogh forbids.” Id. at 882.
    We have also addressed a scenario in which the filed rate
    doctrine did not apply at all, in Ting v. AT&T, 
    319 F.3d 1126
    (9th Cir. 2003). There, we held that the filed rate doctrine
    did not bar a putative class action in which customers alleged
    that a telecommunication provider’s new contract rates
    violated state contract and consumer protection laws, despite
    14          WORTMAN V. ALL NIPPON AIRWAYS
    the fact that the Federal Communications Act (FCA)
    required telecommunication carriers to file tariffs with the
    FCC.       
    Id. at 1130
    .          We explained that the
    Telecommunications Act of 1996 “fundamentally altered the
    [FCA’s] regulatory scheme” by directing the FCC to
    “forbear from applying any regulation or any provision”
    where “enforcement of such regulation or provision [wa]s
    not necessary to ensure that [rates] . . . are just and
    reasonable” and nondiscriminatory, and where enforcement
    was neither necessary for consumer protection nor in the
    public interest. 
    Id. at 1132
     (quoting 
    47 U.S.C. § 160
    (a)).
    The FCC promptly acted on its authority to forbear,
    explicitly stating that tariffs were no longer necessary due to
    market competition and that the filed rate doctrine would no
    longer apply. 
    Id.
     at 1139 n.7. This new forbearance from
    requiring rate filings did not leave the market without some
    safeguards: The FCC retained a consumer complaint process
    as a means for consumers to seek a remedy for
    anticompetitive rates, and the FCC would not defer to the
    market where it determined the market to be “seriously
    flawed or not competitive.” 
    Id.
     at 1143–45.
    As these cases illustrate, the focus of the filed rate
    doctrine has somewhat expanded beyond its original
    application, in which an agency’s express approval of a rate
    precluded civil antitrust challenges to that rate.
    Nevertheless, our decisions make equally clear that this
    expansion is not without bounds. See, e.g., Carlin, 
    705 F.3d 874
    .
    II. Regulation of the International Airline Industry
    The Federal Aviation Act of 1958 (FAA), Pub. L. No.
    85-726, 
    72 Stat. 731
    , established a regulatory structure for
    airline rates. The FAA gave the Civil Aeronautics Board—
    WORTMAN V. ALL NIPPON AIRWAYS                   15
    which has since been replaced by the DOT—authority to
    approve or disapprove international airline rates in service to
    its responsibility for preventing “unfair, deceptive,
    predatory, or anticompetitive practices in air transportation.”
    
    49 U.S.C. §§ 41501
    , 41504. The FAA required airlines to
    file all tariffs with the DOT, and authorized the DOT to hold
    hearings, either on its own initiative or upon consumer
    complaint, to determine the lawfulness of those rates.
    
    49 U.S.C. §§ 41504
    (a)–(b), 41509(a).               The DOT
    implemented its authority through detailed regulations. See
    14 C.F.R. Part 221.
    In the late 1970s, Congress passed legislation intended
    to increase competition and reduce governmental regulation
    in the airline industry. The Airline Deregulation Act of 1978
    (ADA) wholly deregulated the domestic airline market,
    leading the DOT to cease accepting tariff filings for
    domestic air carriers. See 
    14 C.F.R. § 399.40
    ; Tariffs for
    Post-1982 Domestic Travel (April 7, 1982), 47 FR 14892-
    01. In the international airline market, however, Congress
    stopped short of full deregulation. Under the International
    Air Transportation Competition Act of 1979 (IATCA), the
    DOT retained jurisdiction over international airline rates, but
    had increased discretion over filing requirements. 
    49 U.S.C. § 40109
    (c). IATCA correspondingly decreased DOT’s
    ability to grant antitrust immunity to fare agreements among
    carriers as part of Congress’ “determination that airline
    service levels and fares should be controlled by competition,
    not by government regulation.” Int’l Air Transport Assoc.
    Tariff Conf. Proceeding July 6, 2006 at *78; see also
    
    49 U.S.C. § 41308
    (b). DOT continued to be responsible for
    providing a complaint process for consumers to challenge
    international air transport rates as anticompetitive. 
    14 C.F.R. §§ 302.501-507
    , 
    14 C.F.R. §§ 302.401
    –420.
    16          WORTMAN V. ALL NIPPON AIRWAYS
    In 1997, 20 years after the passage of IATCA, the DOT
    announced that, in keeping with “the continuing evolution of
    a policy where we rely on market forces rather than continual
    government oversight to set prices for air transportation,”
    rate filing no longer served a purpose in competitive foreign
    markets. 
    62 Fed. Reg. 10758
    , 10760. Accordingly, in 1999,
    DOT issued a final rule creating its three Country Categories
    (A, B, and C), each with different filing requirements.
    
    64 Fed. Reg. 40654
    ; 
    14 C.F.R. § 293.10
    . As noted, supra,
    the rule required airlines flying between Category C
    countries and the United States, or that were “nationals” of a
    Category C country (i.e. those airlines headquartered in
    Category C countries), to file all tariffs with the DOT.
    
    14 C.F.R. § 293.10
    (a)(1)(iii). Airlines headquartered in or
    flying to and from Category B countries had to file only their
    standard one-way economy fares with the DOT. 
    14 C.F.R. § 293.10
    (a)(1)(ii). Airlines headquartered in or flying to and
    from Category A countries were not subject to any filing
    requirements, except to the extent that they operated flights
    to or from Category B or C countries. 
    14 C.F.R. § 293.10
    (a)(1)(i). The Country Categories corresponded
    roughly to the strength of bilateral agreements between the
    United States and a particular country. 64 Fed. Reg. at
    40656. The DOT stated that it “has always had the statutory
    authority to take action directly against unfiled passenger
    fares,” and “reserve[s] the option of reinstating the tariff-
    filing obligation . . . where consistent with the public
    interest.” 62 Fed. Reg. at 10763.
    Airlines submit tariffs by filing them with the Airline
    Tariff Publishing Company (ATPCO), which acts as a
    private clearinghouse to distribute fares to various entities,
    including the Government Filing System (GFS) through
    which the DOT reviews filed fares. ATPCO filters
    submitted fares based on the DOT’s country categories, and
    WORTMAN V. ALL NIPPON AIRWAYS                   17
    flags certain fares to be “presented” to the DOT for review.
    The DOT does not consider a fare as filed until it has been
    so presented, and the DOT does not appear to have access to
    unpresented fares.
    In 1999, the DOT required that “all surcharges . . . be
    filed.” DOT Notice of Exemption from the Department’s
    Tarriff-Filing Requirements, Dkt. OST-97-2050-14.
    However, the DOT prohibited airlines from charging
    separate fuel surcharges prior to 2004. In 2004, the DOT
    explained that the prohibition on fuel surcharges was
    “established at a time when the Department was regulating
    fares much more actively than is the case today, and [it was]
    concerned that tariff surcharges could undermine [its]
    regulatory supervision of fare levels.” However, it stated
    that increasingly competitive market conditions rendered
    this prohibition “no longer necessary to support the limited
    degree of pricing supervision that continues.”
    As of October 2004, the DOT directed that “carriers
    [we]re free to file surcharges in general rules tariffs.” The
    following month the DOT announced that carriers could no
    longer advertise surcharges as being “government-
    approved,” stating that it could not “effectively monitor”
    fuel charges filed separately from base fares, and that listing
    separate surcharges as approved would constitute “an unfair
    and deceptive trade practice.” 
    69 Fed. Reg. 65676
    , 65676–
    77.
    18            WORTMAN V. ALL NIPPON AIRWAYS
    III.      Application of the Filed Rate Doctrine to
    International Airline Fares and Fees
    A. Application of the Filed Rate Doctrine to Unfiled
    Fares
    We have previously applied the filed rate doctrine to
    circumstances in which the relevant rates were not literally
    filed. See Gallo, 
    503 F.3d at 1042
    ; Grays Harbor, 
    379 F.3d at
    651–52; Wah Chung v. Duke Energy Trading, 
    507 F.3d 1222
    , 1225 (9th Cir. 2007). In so doing, we have found that
    even though the regulating agency did not oversee rates via
    a filing system, the agency engaged in sufficient regulation
    through other means to satisfy the purposes of the doctrine.
    See, e.g., Gallo, 
    503 F.3d at 1042
    . In the present instance,
    by contrast, we agree with the district court’s determination
    that there were genuine issues of material fact as to whether
    the DOT effectively abdicated its authority over the unfiled
    air fares. Accordingly, we hold that the filed rate doctrine
    does not preclude Plaintiffs’ antitrust claims premised on the
    unfiled fares.
    The parties do not dispute that the DOT had the authority
    to regulate unfiled rates, only whether it actually did so. As
    in the energy rate context, the DOT maintains a consumer
    complaint process through which consumers may challenge
    a rate as unreasonable or anticompetitive. The maintenance
    of a consumer complaint process is not, however,
    dispositive. See, e.g., Ting, 
    319 F.3d at
    1143–44.
    We acknowledge that, unlike the FCC’s affirmative
    disavowal of telecommunications regulation, the DOT has at
    least paid lip-service to the notion that it continues to
    exercise some oversight of unfiled rates. In particular, when
    the DOT first set forth its three-tiered filing scheme, it stated
    that the new system would “not materially lessen the
    WORTMAN V. ALL NIPPON AIRWAYS                    19
    Department’s ability to intervene in passenger pricing
    matters” because
    First, the review of [International Air
    Transport Association] passenger fare
    agreements will continue. Second, the
    Department has always had the statutory
    authority to take action directly against
    unfiled passenger fares and rules under a
    variety of circumstances. And third, the
    Department will reserve the option under the
    proposed rule of revoking the exemption, and
    thus of reinstating the tariff-filing obligation,
    with regard to a particular carrier or carriers,
    or for specific markets, where consistent with
    the public interest.
    62 Fed. Reg. at 10763. Nevertheless, the evidence shows
    that the DOT’s actual actions regarding unfiled fares have
    been minimal at best. Appellants point only to the 2005
    reassignment of Argentina to a stricter Country Category as
    evidence of any ongoing regulation. Additionally, there
    remains some question regarding whether—despite the
    DOT’s representation that it would maintain authority over
    unfiled fares—the DOT has the ability to actually access or
    review those fares. The DOT’s only means of considering
    unfiled rates appears to be through (1) assessment of the
    strength of bilateral pricing agreements between the United
    States and a given country, and (2) consumer complaints.
    See 
    14 C.F.R. §§ 302.501
    –507, 302.401–420.
    In short, there are genuine issues of fact as to whether the
    DOT has effectively abdicated the exercise of its authority
    to regulate unfiled fares. Accordingly, the district court did
    not err in denying summary judgment to Defendants as to
    20          WORTMAN V. ALL NIPPON AIRWAYS
    those fares based on the filed rate doctrine. See Gallo,
    
    503 F.3d at 1040
     (“[A] failure by FERC to exercise its
    statutory authority to approve rates would cast doubt on the
    underlying premise of the Filed Rate Doctrine. . . .”).
    B. Application of the Filed Rate Doctrine to Fuel
    Surcharges
    As with unfiled fares, the parties do not contest that the
    DOT had authority to regulate fuel surcharges, but only
    whether it actually did so. The district court did not err by
    finding that genuine issues of material fact regarding the
    DOT’s exercise of regulatory authority over fuel surcharges
    precluded entry of summary judgment for Defendants.
    The DOT did not permit airlines to impose fuel charges
    separately from base airfares prior to 2004, at which time the
    DOT appears to have permitted, but not required, airlines to
    file any such surcharges in their general rules tariffs.
    Admittedly, affording airlines the freedom to file surcharges,
    but not requiring them to do so, makes little sense—
    businesses are unlikely to expend time and money
    complying with optional regulations. Thus Defendants
    argue that the DOT did actually require airlines to file fuel
    surcharges, and that the language “permitt[ing]” airlines to
    file surcharges in their general rules tariffs indicates
    discretion on the part of airlines regarding the procedural
    manner in which they file their fuel charges, not whether
    they file at all. Defendants further argue that the DOT
    required filing of fuel surcharges pursuant to its 1999 rule
    notice stating that “all surcharges are to be filed.” The record
    reflects that some of the airlines involved in this appeal did,
    WORTMAN V. ALL NIPPON AIRWAYS                            21
    or at least attempted to, file fuel surcharges during the class
    period. 4
    Application of the filed rate doctrine to fuel surcharges
    does not, however, turn on whether the DOT requires
    airlines to file those rates. Rather, summary judgment based
    on the application of the filed rate doctrine was inappropriate
    in light of the DOT’s express statement that it lacks the
    ability to “effectively monitor” fuel surcharges. 69 Fed.
    Reg. at 65676–77. As we stated in Gallo, “a failure by [the
    agency] to exercise its statutory authority to approve rates []
    cast[s] doubt on the underlying premise of the Filed Rate
    Doctrine.” 
    503 F.3d at 1040
    . 5 In the context of fuel
    surcharges, the DOT may have intended to exercise some
    4  Some airlines privately filed fuel surcharges, but entered them into
    the database incorrectly such that they were not flagged to be presented
    to the DOT and thus were not considered “filed” within the meaning of
    the DOT’s regulations.
    5
    Notwithstanding Gallo’s instruction that actual filing does not end
    the filed rate doctrine inquiry, Judge Wallace cites Gallo and Carlin as
    establishing a “clear barrier” between filed and unfiled rates, such that
    an agency’s failure to regulate is only relevant where the rate in question
    was not filed. We do not find this reading of Gallo and Carlin
    persuasive. On the contrary, while those cases may have dealt with rates
    not actually filed, their reasoning expressly invokes “the principles
    underlying [the] doctrine” to find that its application does not turn on
    “the act of literal rate filing.” Gallo, 
    503 F.3d at 1040
    . Our opinion does
    not effect the unbounded expansion that Judge Wallace cautions against.
    Rather, it consistently applies the logic expressly set forth in our prior
    cases. To hold, as Judge Wallace advocates, that merely filing a rate
    triggers application of the doctrine in every circumstance, would permit
    carriers to avoid civil antitrust damages by filing rates even where the
    relevant agency has expressly stated that it cannot or will not engage in
    regulation. Such application of the doctrine completely untethers it from
    both its underlying justification and the reasoning of our prior decisions.
    We decline to adopt such a rule.
    22          WORTMAN V. ALL NIPPON AIRWAYS
    regulatory authority, insofar as it required surcharges to be
    filed. The DOT’s intent in this regard is unclear given its
    lack of participation in this lawsuit. However, the evidence
    on record created a genuine issue of material fact as to
    whether the DOT retained the practical ability to do so.
    Inability to regulate, just as much as willful abdication,
    constitutes a “failure by [an agency] to exercise its statutory
    authority.” 
    Id.
     In accordance with the DOT’s expression of
    its inability to regulate fuel surcharges, we decline to apply
    the filed rate doctrine to preclude Plaintiffs’ claims regarding
    those surcharges.
    C. Application of the Filed Rate Doctrine to
    Discount Fares
    The third category of fares for which the district court
    considered the application of the filed rate doctrine is that of
    ANA’s “discount” fares—as relevant here, those fares that
    differ in both price and terms from ANA’s filed tariffs. We
    acknowledge that the filed rate doctrine prohibits suits based
    not only on a difference between filed and actually-applied
    rates, see Maislin, 
    497 U.S. at 127
    , but also on any difference
    between filed and actually-applied terms, AT&T Corp. v.
    Central Office Tel., Inc., 
    524 U.S. 214
    , 223–27 (1998).
    However, we have not previously considered the application
    of the filed rate doctrine to a situation in which both the rate
    and the terms deviate from those on file with the regulating
    agency. We face that situation now, and we conclude that
    the district court did not err in declining to apply the doctrine
    given the questions of fact regarding whether the discount
    fares constitute the same product as the fares actually filed.
    In Central Office, the Supreme Court stated that “the
    policy of nondiscriminatory rates is violated when similarly
    situated customers pay different rates for the same services.”
    
    524 U.S. at 223
     (emphasis added). In this case, the terms of
    WORTMAN V. ALL NIPPON AIRWAYS                   23
    the unfiled discount tickets differed substantially from those
    of the filed fares. Moreover, the filed rate doctrine is
    grounded in the notion that courts should not be interpreting
    “reasonable” pricing when an agency has already approved
    a given rate, and the concomitant desire to avoid
    discriminatory pricing between customers. Keogh, 
    260 U.S. at
    163–64.       Neither of these justifications supports
    application of the doctrine to ANA’s discount-fare scheme.
    In regard to the latter, the entire system of discount fares is
    premised on varied pricing between consumers—
    accompanied, of course, by differing terms. As to the former
    consideration, it is somewhat disingenuous to label the filed
    rates as “approved rates” for a corresponding discount fare
    since the service being purchased differs materially from that
    described in the filed tariff.
    Economy class and business class fares are considered to
    be different products by the DOT, and are, accordingly, filed
    separately, despite the fact that each may apply to the same
    departure and arrival point. See 62 Fed. Reg. at 10760
    (distinguishing between “economy” fares, which must be
    filed by Category B countries, and “promotional” or
    “premium” fares, which need not be filed by Category B
    countries). The district court did not err in denying summary
    judgment to Defendants as to these discount fares. Given the
    differences in both the prices and terms, a question of fact
    existed as to whether the DOT could effectively regulate the
    actual fares because they arguably constituted different
    products from the filed fares.
    CONCLUSION
    The record as it currently stands indicates that the DOT
    has not exercised its authority to regulate unfiled airfares,
    fuel surcharges, or discount fares in a manner sufficient to
    justify the application of the filed rate doctrine. Should
    24           WORTMAN V. ALL NIPPON AIRWAYS
    additional evidence indicate a greater degree of regulation
    by the DOT than is currently reflected in the record, the
    district court is free to reassess whether the filed rate doctrine
    bars any of Plaintiffs’ claims. Pursuant to 
    28 U.S.C. § 517
    ,
    the United States may submit a statement in a case
    expressing its views on relevant issues in which it has an
    interest. See, e.g., Dept. of Fair Empl. and Hous. v. L. Sch.
    Admis. Council Inc., 
    896 F. Supp. 2d 849
    , 854 (N.D. Cal.
    2012) (non-party United States entering statement of interest
    pursuant to 
    28 U.S.C. § 517
    ); Berglund v. Boeing Co., Inc.,
    02-193-AS, 
    2006 WL 1805965
    , at *1 (D. Or. June 22, 2006)
    (same). On remand, we urge the parties to solicit the DOT’s
    views regarding its regulatory authority on the various rates
    here at issue.
    We AFFIRM the district court’s partial denial of
    Defendants’ motions for summary judgment, and we
    REMAND this matter for further proceedings consistent
    with this opinion.
    WALLACE, Circuit Judge, concurring in part and dissenting
    in part:
    I concur in the bulk of the majority’s well-reasoned
    opinion. I dissent, however, from the majority’s conclusion
    that genuine issues of material fact remain as to whether the
    DOT effectively abdicated its authority over fuel surcharges
    that Defendants actually filed with the DOT.
    In Section III, Subsection B, the majority discusses the
    second type of rate at issue in this appeal: fuel surcharges. In
    1999, when the DOT implemented the category A, B, and C
    rate-filing system, the DOT explicitly stated that “all
    surcharges are to be filed.” At the same time, however, the
    WORTMAN V. ALL NIPPON AIRWAYS                  25
    DOT did not allow fuel surcharges to be filed separately
    from airfares. Instead, the DOT insisted that carriers should
    recoup fuel expenses through increases in their base fares. In
    2004, the DOT changed this policy, and allowed, but did not
    require, airlines to file separate fuel surcharges.
    The parties disagree vigorously as to what the record
    reflects regarding the filing of fuel surcharges. Defendants
    assert that they “are unambiguously required to file all
    surcharges, including fuel surcharges, with DOT. . . . While
    the district court concluded that DOT did not require fuel
    surcharges to be filed, that conclusion was simply incorrect.”
    Plaintiffs, on the other hand, contend that Defendants “were
    never required to file them as a matter of law.”
    Notwithstanding the factual disagreement over whether the
    DOT required the filing of surcharges after 2004, the record
    is also unclear as to whether Defendants actually filed them
    in a consistent manner.
    In sorting through the record on the filing of fuel
    surcharges, the majority concludes that “summary judgment
    based on the application of the filed rate doctrine was
    inappropriate in light of the DOT’s express statement that it
    lacks the ability to ‘effectively monitor’ fuel surcharges.”
    For the fuel surcharges that were not actually filed, I agree
    with the majority’s analysis, and assert that these unfiled
    surcharges should be treated the same as the unfiled airfares.
    Defendants have not pointed to any evidence indicating the
    DOT’s regulation of unfiled fuel surcharges. Instead,
    Defendants merely assert that the DOT required all
    surcharges to be filed (which, as described above, is
    contested). Accordingly, I agree with the majority’s holding
    that the filed rate doctrine does not bar, as a matter of law,
    antitrust challenges to unfiled fuel surcharges.
    26          WORTMAN V. ALL NIPPON AIRWAYS
    I conclude, however, that the majority is incorrect as to
    any fuel surcharges that were actually filed. In Square D Co.
    v. Niagara Frontier Tariff Bureau, Inc., the Supreme Court
    affirmed the filed rate doctrine’s viability and held that the
    filed rate doctrine was not limited to instances in which
    “rates had been investigated and approved” but rather
    extended to instances “whenever tariffs have been filed.”
    
    476 U.S. 409
    , 417 n.19 (1986), quoting Square D Co. v.
    Niagara Frontier Tariff Bureau, Inc., 
    760 F.2d 1347
    , 1351
    (2d Cir. 1985).
    The facts and the Supreme Court’s holding in Square D
    are not the same as in our case. Moreover, Square D merely
    made the assertion in a footnote that the filed rate doctrine
    bars claims “whenever tariffs have been filed.”
    Nevertheless, this footnote from Square D is the closest the
    Supreme Court has come to answering the question of
    whether challenges to rates that were actually filed are
    permissible under the filed rate doctrine. The Supreme Court
    answered no to this critical question. Thus, I assert that the
    fuel surcharges that have actually been filed in our case fall
    under the umbrella of Square D’s holding.
    The majority’s conclusion on this issue seems to rely
    solely on the DOT’s statement that it lacked the ability to
    “effectively monitor” fuel surcharges. The DOT’s statement,
    however, must be read in its full context. In 2004, the DOT
    stated:
    [T]he desire of carriers to pass on the higher
    cost of certain expenses discretely, such as
    insurance and fuel, has led to such expenses
    being filed separately from the “base” fare in
    tariffs, a situation that the Department cannot
    effectively monitor. . . . [T]he Enforcement
    Office will no longer allow the separate
    WORTMAN V. ALL NIPPON AIRWAYS                           27
    listing of “government-approved” surcharges
    in fare advertising. We will consider the
    separate listing of such charges in fare
    advertisements an unfair and deceptive trade
    practice. . . .
    69 Fed. Reg. at 65676–77. From this single statement,
    regarding “the separate listing of ‘government-approved’
    surcharges in fare advertising,” the majority formulates a
    genuine issue of material fact as to whether the filed rate
    doctrine is inapplicable to all fuel surcharges, whether or not
    they were filed. I assert that the majority reads far too much
    into the DOT’s statement relating to advertising.
    Accordingly, I would reverse the district court to the
    extent it held that Plaintiffs could challenge the literally-filed
    fuel surcharges. The existence of the rates that were actually
    filed, combined with the existence of the DOT’s consumer
    complaint process, negates any issue of material fact as to
    whether the DOT effectively abdicated its authority to
    regulate actually-filed fuel surcharges.
    When we create and expand judge-made doctrines, such
    as the filed rate doctrine, we must do so with an eye towards
    the lower courts’ application of those doctrines. In Gallo and
    Carlin, we employed the “effective abdication” exception to
    the filed rate doctrine in situations when rates had not
    actually been filed. 1 This rule erected a clear barrier between
    1
    The majority, in footnote 5, asserts that Gallo stands for the
    proposition that the filed rate doctrine’s application “does not turn on
    ‘the act of literal rate filing’” (Majority Opinion at n.5, quoting Gallo,
    
    503 F.3d at 1040
    ). The majority’s statement is misleading. The full
    sentence from Gallo, from which the majority selectively clips, is:
    “Moreover, although the Supreme Court initially applied the Filed Rate
    28             WORTMAN V. ALL NIPPON AIRWAYS
    treatment of rates that had actually been filed versus those
    that had not. Here, the majority muddles that barrier, and
    expands the exception by adopting the rule that courts must
    determine when an agency has “effectively abdicated” its
    authority, notwithstanding the actual filing of rates. I fear
    this expansion has no limiting principle, and could lead to
    the crumbling of the filed rate doctrine, in contravention of
    the Supreme Court’s guidance. Adhering to a rule—that the
    literal filing of rates means the filed rate doctrine applies—
    is more workable than the nebulous standard the majority
    has constructed here. Thus, I respectfully dissent from
    Section III, Subsection B of the majority opinion.
    Doctrine to actual filed rates, courts have held that the principles
    underlying this doctrine preclude challenges to a wide range of FERC
    actions, not just the act of literal rate filing.” 
    Id.
     In essence, what Gallo
    conveys here is that while the filed rate doctrine has commonly applied
    only to actually-filed rates, its reach can expand even further, to
    scenarios in which rates have not been filed. In no way does Gallo
    suggest that the filed rate doctrine does not apply to actually-filed rates.
    Indeed, application to filed rates makes sense and is not “unbounded,”
    because it allows the DOT to rely on complaints about a filed rate to
    exercise its supervision.