Air Line Pilots Association v. Elaine Chao , 889 F.3d 785 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2018 Decided May 11, 2018
No. 17-1012
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, ET AL.,
PETITIONERS
v.
ELAINE L. CHAO, SECRETARY OF THE UNITED STATES
DEPARTMENT OF TRANSPORTATION,
RESPONDENT
NORWEGIAN AIR INTERNATIONAL LIMITED,
INTERVENOR
On Petition for Review of an Order of the
United States Department of Transportation
R. Russell Bailey argued the cause for petitioners. With
him on the briefs were Jonathan A. Cohen, David M.
Semanchik, Edward J. Gilmartin, James P. Clark, Jonathan
Elifson, and Stella Dulanya.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief was
Michael S. Raab, Attorney.
2
Thomas G. Allen and Kevin M. Fong were on the brief for
intervenor Norwegian Air International Limited in support of
respondent.
Before: ROGERS and TATEL, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
Concurring opinion filed by Circuit Judge ROGERS.
Concurring opinion filed by Senior Circuit Judge
SENTELLE.
TATEL, Circuit Judge: Four airline-employee unions
challenge the Secretary of Transportation’s award of a foreign
air carrier permit to Norwegian Air International Limited,
arguing that the airline’s business model and labor practices are
not in the public interest. Though the unions have Article III
standing to challenge the Secretary’s decision, their petition
fails on the merits as neither federal law nor international
agreement requires the Secretary to deny a permit on
freestanding public-interest grounds where, as here, an
applicant satisfies the requirements for obtaining a permit.
I.
A foreign airline seeking to fly to or from the United States
must secure a permit from the Secretary of Transportation. See
49 U.S.C. § 41301. The Secretary is authorized by 49 U.S.C.
§ 41302 to issue a permit where an applicant is “fit, willing,
and able,” and either (A) “is qualified, and has been
designated” to provide the air service by its home country
under an international agreement or (B) will provide service
that is in the “public interest.” We shall explore the text of this
3
provision and, in particular, its public-interest component
much more closely below.
The Air Transport Agreement between the United States
and the European Union countries also governs issuance of
permits to those nations’ airlines. See Air Transport
Agreement, June 16–21, 2011, 2011 O.J. (L 283) 3
(incorporating an earlier version of the Agreement, see Air
Transport Agreement Between the United States and the
European Community and Its Member States, Apr. 25–30,
2007, 46 I.L.M. 470 (“2007 Agreement”), and its subsequent
amendment, see Protocol to Amend the Air Transport
Agreement Between the United States of America and the
European Community and Its Member States, June 24, 2010,
2010 O.J. (L 223) 3 (“2010 Protocol”)). Article 4 requires that
the United States grant a permit to a covered European carrier
“with minimum procedural delay,” provided the applicant
satisfies certain citizenship and fitness criteria and maintains
safety and security requirements detailed elsewhere. 2007
Agreement art. 4. Under Article 6 bis—“bis” means “second”
and describes a new provision inserted after an existing one—
the United States must, absent “specific reason for concern,”
recognize fitness and citizenship determinations made by an
airline’s home nation “as if such a determination had been
made by its own aeronautical authorities.” 2010 Protocol art. 2
(adding Article 6 bis to the 2007 Agreement). Lastly for our
purposes, Article 17 bis, titled “Social Dimension”—whose
text we shall also explore below—expresses the “importance
of the social dimension of the Agreement” and recognizes “the
benefits that arise when open markets are accompanied by high
labour standards.” 2010 Protocol art. 4 (adding Article 17 bis).
On December 2, 2013, Norwegian Air International
Limited (“Norwegian”)—an airline that, despite its name, is
based in Ireland—applied to the Secretary of Transportation for
4
a foreign-carrier permit. See Application of Norwegian Air
International Limited for an Exemption and Foreign Air Carrier
Permit, Docket No. DOT-OST-2013-0204-0001 (Dec. 2,
2013), Joint Appendix (J.A.) 1. Shortly thereafter, Norwegian
received an Air Operator Certificate and operating licenses
from the Irish authorities authorizing it to provide service under
the Air Transport Agreement. See Letter from Leo Varadkar,
Minister, Ireland Department of Transport, Tourism and Sport,
to Anthony R. Foxx, Secretary, U.S. Department of
Transportation (Feb. 13, 2014), J.A. 254.
Airline-employee unions and others from the United States
and Europe, including petitioners here—Air Line Pilots
Association, International; Association of Flight Attendants-
CWA; Allied Pilots Association; and Southwest Airlines
Pilots’ Association (the “Unions”)—opposed Norwegian’s
application. In their comments, these opponents claimed that
Norwegian, a subsidiary of Norway’s flag carrier, used Ireland
as a “flag of convenience” by “establish[ing] itself in Ireland to
evade the social laws of Norway in order to lower the wages
and working conditions of its air crew,” including by hiring
pilots and cabin crew from a Singaporean third-party
contractor. Order to Show Cause, Docket No. DOT-OST-
2013-0204-0223, at 3 (Apr. 15, 2016), J.A. 417.
On April 15, 2016, the Secretary issued an order
tentatively approving Norwegian’s application for a permit.
Acknowledging that Norwegian’s application and, in
particular, its labor practices “present[ed] novel and complex
issues,” the Secretary nonetheless concluded that neither
Article 17 bis nor section 41302 allowed the denial of a permit
on public-interest grounds where the applicant was qualified,
as was Norwegian, and the Secretary was obligated under the
Air Transport Agreement to grant the permit “with minimum
procedural delay.” Id. at 7, J.A. 421. In interpreting the Air
5
Transport Agreement, the Secretary solicited the views of the
State Department and the Justice Department’s Office of Legal
Counsel (OLC), both of which concluded—as had the
Department of Transportation’s General Counsel—that Article
17 bis provides no independent basis for rejecting an otherwise
qualified applicant. Id. And section 41302, the Secretary
explained, allows permit issuance for service that is either
authorized under an international agreement or in the public
interest. Because the Air Transport Agreement required the
United States to grant Norwegian’s permit, the Secretary found
the former condition satisfied and did not consider the latter.
Id. at 6–8, J.A. 420–22.
Several months later, the Secretary issued, over the
Unions’ objection, a final order awarding Norwegian a foreign
air carrier permit. Final Order, Docket No. DOT-OST-2013-
0204-15123 (Dec. 2, 2016) (“Final Order”), J.A. 569.
Reiterating that Norwegian’s application was “among the most
novel and complex [cases] ever undertaken,” the Secretary
again concluded that “the law and [the United States’] bilateral
obligations leave [the Secretary] no avenue to reject
[Norwegian’s] application.” Id. at 3–4, J.A. 571–72. The
Unions petitioned for review, and Norwegian intervened on the
Secretary’s behalf. Before evaluating the merits of the Unions’
petition, we must consider the Secretary’s argument that they
lack Article III standing.
II.
The “‘irreducible constitutional minimum’ of standing
consists of three elements”: “[t]he plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). This court,
6
relying on a well-established principle of competitor-standing
doctrine that “when [government action] illegally structure[s]
a competitive environment . . . parties defending concrete
interests . . . in that environment suffer legal harm under Article
III,” Shays v. Federal Election Commission, 414 F.3d 76, 87
(D.C. Cir. 2005), has consistently held that union members
have standing to challenge agency action authorizing
competitive entry into their employers’ markets. In our most
recent case, International Brotherhood of Teamsters v.
Department of Transportation, 724 F.3d 206 (D.C. Cir. 2013),
we held that truck-drivers’ associations had standing to
challenge a Department of Transportation program allowing
Mexico-domiciled trucking companies to operate in the United
States, because “absent the . . . program, members of these
groups would not be subject to increased competition from
Mexico-domiciled trucks operating throughout the United
States,” id. at 211–12; see also Clifford v. Peña, 77 F.3d 1414,
1416–17 (D.C. Cir. 1996) (holding that maritime unions had
standing to challenge a Maritime Administration decision
permitting an American carrier to operate foreign-flag vessels);
Autolog Corp. v. Regan, 731 F.2d 25, 30–31 (D.C. Cir. 1984)
(holding that a seamen’s union crewing American-flag vessels
had standing to seek an injunction against a new foreign cruise
line competing on the American vessels’ route).
This long line of cases confirms that the Unions have
standing here. The Secretary’s authorization of Norwegian’s
entry harms the Unions’ members by exposing them to
potential job loss, wage and hour cuts, and other competitive
pressures. To paraphrase our prior decisions: “[A]bsent [the
Secretary’s grant of Norwegian’s permit], members of [the
Unions] would not be subject to increased competition from [a
foreign airline] operating [in] the United States.” International
Brotherhood of Teamsters, 724 F.3d at 212. “[T]he potential
loss of [Union] jobs [is] a sufficient injury to confer standing,
7
. . . the injury [is] traceable to [Norwegian]’s expansion, and
. . . [the requested relief] would redress the injury.” Clifford, 77
F.3d at 1416 (citing Autolog, 731 F.2d at 31).
Challenging the Unions’ standing, the Secretary relies
primarily on one case, Association of Flight Attendants–CWA,
AFL–CIO v. Department of Transportation, 564 F.3d 462
(D.C. Cir. 2009), in which this court held that an airline-
employee union lacked standing to challenge the Secretary’s
award of an air-carrier certificate. But the court did not hold
that airline-employee unions could never have standing in such
a case nor did it consider our competitor-standing decisions.
Rather, the court concluded only that the union had failed to
connect the airline’s entry to the narrow injury upon which it
sought to ground standing, i.e. an involuntary furlough, finding
that it “[could not] accept [the union’s] statements as anything
other than conclusory and therefore inadequate.” Id. at 469.
Though arising in a similar context, Flight Attendants thus
poses no barrier to the Unions’ competitor-standing claim here,
which relies on a theory of injury and causation well
established in our competitor standing case law.
III.
The Unions challenge the Secretary’s grant of
Norwegian’s permit as “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5 U.S.C.
§ 706(2)(A), arguing that it was incompatible with Article 17
bis of the Air Transport Agreement and section 41302.
Questions of textual interpretation sometimes require courts to
struggle with ambiguous language, conflicting context,
equivocal history, and elusive purpose. Not so here.
A.
Starting with the Air Transport Agreement, the Unions
argue that Article 17 bis provides an independent basis for
8
denying Norwegian’s permit. Our analysis begins—and
ends—with the Agreement’s text. See Medellín v. Texas, 552
U.S. 491, 506 (2008) (“The interpretation of a treaty, like the
interpretation of a statute, begins with its text.”); Air Canada v.
Department of Transportation, 843 F.2d 1483, 1486 (D.C. Cir.
1988) (“[W]e interpret [international agreements] according to
the principles applicable to treaties . . . .”).
Titled “Social Dimension,” Article 17 bis provides in full:
1. The Parties recognise the importance of the
social dimension of the Agreement and the
benefits that arise when open markets are
accompanied by high labour standards. The
opportunities created by the Agreement are not
intended to undermine labour standards or the
labour-related rights and principles contained in
the Parties’ respective laws.
2. The principles in paragraph 1 shall guide the
Parties as they implement the Agreement,
including regular consideration by [a] Joint
Committee . . . of the social effects of the
Agreement and the development of appropriate
responses to concerns found to be legitimate.
2010 Protocol art. 4 (emphasis added).
Article 17 bis imposes no specific obligations on the
Secretary when considering a permit application. The article’s
first paragraph sets out a statement of principles—it explains
what the parties “recognise” and what the Agreement is
“intended” to do—that requires no concrete action from the
parties. The second paragraph operationalizes those
“principles,” doing so by providing that the social dimension
of the Agreement “shall guide” the parties, prescribing
9
committee consideration as the only necessary action. The
Unions remind us that the word “shall” imposes a mandatory
directive. They fail to acknowledge, however, that it also
matters what, specifically, the Agreement requires shall be
done, namely, that the principles “shall guide the [p]arties.”
Nothing in Article 17 bis requires the denial of a permit that
conflicts with the first paragraph’s broad statement of
principles.
Contrast Article 17 bis with other portions of the
Agreement. Article 4, for example, provides that “[o]n receipt
of applications from an airline . . . [a] Party shall grant
appropriate authorizations and permissions with minimum
procedural delay, provided” that certain conditions are
satisfied. 2007 Agreement art. 4 (emphasis added). And Article
6 bis requires that, subject to an exception not relevant here,
“[u]pon receipt of an application for operating authorisation . . .
from an air carrier of one Party, the aeronautical authorities of
the other Party shall recognize any fitness and/or citizenship
determination made by . . . the first Party.” 2010 Protocol art.
2. Not only does the language of Articles 4 and 6 bis contrast
sharply with the aspirational principles of Article 17 bis, it
directly requires the United States to grant Norwegian’s permit
“with minimum procedural delay.” And Article 4’s
requirement that before a permit is awarded “the provisions set
forth in Article 8 (Safety) and Article 9 (Security) [be]
maintained and administered” makes clear that the Agreement
can and does require compliance with certain provisions—but
notably not Article 17 bis—as a precondition to permit
issuance.
The government agencies charged with negotiating and
interpreting the Agreement agree with us that Article 17 bis
provides no basis for denying a permit. Cf. Water Splash, Inc.
v. Menon, 137 S. Ct. 1504, 1512 (2017) (noting that courts give
10
“great weight” to Executive Branch treaty interpretations and
“considerable weight” to the views of treaty counterparties).
OLC considered the text, amendment history, and purposes of
the Agreement, and concluded that “if an air carrier of a Party
to the Agreement is otherwise qualified to receive a permit,
Article 17 bis does not provide an independent basis upon
which the United States may deny the carrier’s application for
a permit.” Interpretation of Article 17 bis of the US-EU Air
Transport Agreement, 40 Op. O.L.C. 1, 2 (2016). Although
OLC found, as have we, the issue sufficiently clear to obviate
the need to consider negotiating history, id. at 10 n.6, the State
Department, “which led the U.S. delegation that negotiated the
Agreement,” concluded that the relevant history likewise
supports our interpretation. Letter from Brian J. Egan, Legal
Adviser, Department of State, to Karl Thompson, Principal
Deputy Assistant Attorney General, OLC, at 4 (Apr. 13, 2016),
J.A. 471. Finally, for good measure, the Secretary consulted the
European Commission’s Directorate General for Mobility and
Transport, whose Director of Aviation confirmed that “if a
party has a concern about Article 17 bis as a general matter, the
only mechanism available under the Agreement is to raise the
issue for consideration by the Joint Committee,” because
Article 17 bis “cannot be referred to unilaterally by a Party to
refuse an authorization under Article 4 of the Agreement.”
Notice, Application of Norwegian Air International Limited,
Docket No. DOT-OST-2013-0204, at 2–3 (Aug. 4, 2014), J.A.
338–39.
B.
The Unions next argue that section 41302 allows the
Secretary to grant Norwegian's permit only if it is in the public
interest. But here, too, the Unions’ argument falters in the face
of unambiguous text.
11
Section 41302 describes the conditions under which the
Secretary may issue permits to foreign air carriers. We
emphasize the key word:
The Secretary of Transportation may issue a
permit . . . authorizing . . . a foreign air carrier if
the Secretary finds that—
(1) the person is fit, willing, and able to
provide the foreign air transportation to
be authorized by the permit and to
comply with this part and regulations of
the Secretary; and
(2)(A) the person is qualified, and has
been designated by the government of
its country, to provide the foreign air
transportation under an agreement with
the United States Government; or
(B) the foreign air transportation to be
provided under the permit will be in the
public interest.
49 U.S.C. § 41302 (emphasis added). Section 41302 provides
two paths to authorization: if the Secretary finds the carrier to
be fit, willing, and able under the first paragraph, the Secretary
must find either that the carrier is qualified and designated by
its home country under an agreement with the United States
pursuant to paragraph 2(A), or that the transportation will be in
the public interest pursuant to paragraph 2(B).
The Secretary found, as Union counsel conceded at oral
argument, that Norwegian was fit, willing, and able, thus
satisfying paragraph one, and that the airline was qualified and
designated by Ireland under the Air Transport Agreement, thus
12
satisfying paragraph 2(A). See Oral Arg. 16:18–25. Under the
statute’s plain text, then, the Secretary could grant Norwegian’s
permit without engaging in a public-interest analysis under
paragraph 2(B) because Norwegian satisfied paragraph 2(A)
and the statute unambiguously requires only one “or” the other.
Attempting to convince us that “or” really means “and,”
the Unions point to the statute’s history. Pet’rs’ Br. 28–30. In
doing so, however, the Unions run afoul of a fundamental
principle of statutory interpretation: where the text is
unambiguous, as it is here, courts may not look to history. See
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241
(1989) (“[W]here, as here, the statute's language is plain, ‘the
sole function of the courts is to enforce it according to its
terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485
(1917))).
Even were we to look beyond the statute’s text, the
evidence the Unions offer works against them. They first cite
an earlier version of the statute, which empowered the Civil
Aeronautics Board to “issue [a] permit if it finds that [a] carrier
is fit, willing, and able . . . and that such transportation will be
in the public interest.” 49 U.S.C. § 1372(b) (1976) (emphasis
added). That a prior version of the statute says “and,” requiring
a mandatory public-interest determination, serves only to
underscore the current version’s use of “or,” evincing
Congress’s intent to make the public-interest determination a
disjunctive condition.
Legislative history likewise demonstrates that, contrary to
the impression the Unions give in their brief, Congress’s use of
the word “or” was far from a thoughtless choice. As a State
Department official explained in a Senate subcommittee
hearing on the relevant amendment: “The provision will be
most helpful in eliminating a dilemma previously faced on
13
occasion where a service by a foreign carrier was authorized by
a bilateral agreement but nevertheless attacked . . . as not being
in the ‘public interest.’ The provision, in effect, creates a
conclusive presumption that a service authorized by a bilateral
agreement is in the public interest.” International Air
Transportation Competition Act of 1979: Hearings on S. 1300
Before the Subcommittee on Aviation of the Senate Committee
on Commerce, Science and Transportation, 96th Cong. 101
(1979) (statement of Richard N. Cooper, Under Secretary for
Economic Affairs, Department of State). Reinforcing this point
at the same hearing, the chairman of the Civil Aeronautics
Board presented the Board’s view that the proposed
amendment “avoid[s] an unnecessary relitigation of the public
interest question.” Id. at 67 (statement of Marvin S. Cohen,
Chairman, Civil Aeronautics Board). Congress, then,
understood the word “or” to function exactly as we interpret it,
establishing a “conclusive presumption” that compliance with
an international agreement (under paragraph 2(A)) obviates the
need to “relitigat[e]” the public-interest question (under
paragraph 2(B)). In other words, “‘or’ . . . mean[s] . . . well,
‘or.’” Loughrin v. United States, 134 S. Ct. 2384, 2391 (2014).
Undaunted, the Unions next claim that the Secretary has
always engaged in a public-interest analysis as part of the
permit-granting process. This argument runs into another
fundamental principle of statutory interpretation: that agency
practice cannot alter unambiguous statutory text. See Chevron
U.S.A. Inc. v. National Resources Defense Council, Inc., 467
U.S. 837, 842–43 (1984) (“If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress.”). Even so, the Unions cite no case where the
Secretary found that a permit applicant satisfied section 2(A)
yet nonetheless denied a permit on public-interest grounds.
14
Finally, the Unions argue that even if the Secretary had no
obligation to engage in a public-interest analysis before
granting a permit, the Secretary should have imposed
conditions on Norwegian’s permit “required in the public
interest.” 49 U.S.C. § 41305(b). The Secretary concedes that
“the Department of Transportation did not expressly address
[the Unions’] request” for permit conditions. Resp’t’s Br. 33.
As the Final Order makes clear, however, Norwegian
voluntarily agreed to certain steps to address “concerns
regarding [its] potential hiring and employment practices,”
Final Order at 4, J.A. 572, which the Secretary took into
account in awarding the permit, see id. at 5, J.A. 573 (“In
reaching our decision to grant [Norwegian’s] permit, we have
taken into account the totality of the record . . . including those
changes to its hiring and employment practices that it has
offered as a direct result of the difficult issues that have been
raised during the course of this proceeding.”). This, we think,
means that the Secretary thought no further conditions were
necessary. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766
n.6 (1969) (plurality opinion) (finding remand unnecessary
where it “would be an idle and useless formality”).
IV.
After traversing the landscape of international-agreement
and statutory interpretation, we end where we began: with the
text. Broad statements of principle cannot create binding
obligations and when a statute requires “(A) or (B),” (A) is
enough. For the foregoing reasons, the petition for review is
denied.
So ordered.
ROGERS, Circuit Judge, concurring: I concur that the
Unions have Article III standing to challenge the decision of
the Secretary of Transportation approving the permit
application of Norwegian Air International Limited to fly
between the United States and foreign countries. Op. at 5-7. I
also concur that the plain text of 49 U.S.C. § 41302(2)(B) did
not require the Secretary to make a “public interest” finding in
approving the permit application. Op. at 10-13. Although I
concur that Article 17 bis of the Air Transport Agreement does
not provide an independent basis for denying a permit
application, Op. at 7-10, I write separately to clarify that
Article 17 bis has both an immediate role in the permit
approval process, through the Secretary’s consideration of a
permit application and imposition of terms for service under a
permit, and a continuing role once a permit becomes
operational, through (at least) action by the referenced Joint
Committee.
The preamble to the Air Transport Agreement between the
United States and the European Community states that the
Agreement was intended not only to promote competition
among airlines, but also to ensure that “all sectors of the
transport industry, including airline workers,” would “benefit”
under the new “liberalized” regime. 2007 Agreement pmbl.
The 2010 Protocol amending the Agreement added Article 17
bis. Article 17 bis consists of two paragraphs: The first
paragraph states that “[t]he opportunities created by the
Agreement are not intended to undermine labour standards or
the labour-related rights and principles contained in the Parties’
respective laws.” 2010 Protocol art. 4. The second paragraph
implements the first, instructing that “[t]he principles in
paragraph 1 shall guide the Parties as they implement the
Agreement, including regular consideration by the Joint
Committee” of the Agreement’s “social effects.” Id.
(emphases added).
 2
Based on its plain text, Article 17 bis can provide a basis
for imposing conditions in connection with the Secretary’s
consideration of an application for a permit and thereafter, if an
application is approved pursuant to the Secretary’s authority
under 49 U.S.C.§ 41305(b) to “impose terms for providing
foreign air transportation under the permit.” The reference to
“implement” in paragraph 2 can encompass both the
Secretary’s consideration of a permit application and the terms
of the permit to be issued pursuant to approval of the
application. See WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (1961) (defining “implement” as “to give
practical effect to and ensure of actual fulfillment by concrete
measures”); OXFORD ENGLISH DICTIONARY (2 ed. 1989) (“[T]o
complete, perform, carry into effect (a contract, agreement,
etc.)”). Additionally, given that “[t]he participle including
typically indicates a partial list,” BLACK’S LAW DICTIONARY
777 (10th ed. 2014), the use of “including” in paragraph 2
indicates that the Joint Committee is not the only mechanism
for vindicating “high labour standards” and “labour-related
rights.” Indeed, the Secretary’s action in the instant case
accords with this interpretation. It is undisputed that the
Secretary has authority to impose terms for providing service
under the permit and did so here. And in considering
Norwegian Air’s application for a permit, the Secretary
expressly relied on voluntary commitments made by its Chief
Executive Officer. Dep’t of Transp. Final Order 2016-11-22 at
4-5 & n.17 (Dec. 2, 2016) (“Final Order”); Letter of Bjorn
Kjos, Chief Exec. Off’r., Norwegian Air, Ex. 1 to Mot. of
Norwegian Air Int’l Ltd. for Leave to File and Expedited
Treatment, DOT-OST-2013-0204-0203 (June 1, 2015).
During the Department of Transportation’s consideration
of Norwegian Air’s application for a permit, the Unions
requested conditions be placed on Norwegian Air’s permit “to
ensure that its operations are consistent with Article 17 bis”;
3
“[t]hese conditions could include that [Norwegian Air’s]
aircrew will (1) be based in Ireland; (2) be employed on
contracts with an Irish company that will be governed by Irish
employment and social security laws; and (3) have the right to
choose a representative for collective bargaining purposes.”
Objection of Labor Parties to Order to Show Cause, DOT-
OST-2013-0204-13281 (May 16, 2016) at 38. The Unions now
contend that the failure to place these terms on Norwegian
Air’s permit was arbitrary and capricious, specifically that
“[b]y failing to address their requested conditions at all, much
less whether such terms would be consistent with the intent
expressed in Article 17 bis, DOT failed to address ‘an
important aspect of the problem.’’’ Pet’rs’ Br. 33-34 (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)).
The Secretary acknowledges that the “Department of
Transportation did not expressly address petitioners’ request”
for conditions, Resp’t’s Br. 33, but maintains that the concerns
underlying the Unions’ conditions were addressed during the
Department’s consideration of Norwegian Air’s application.
Id. at 40-41. In fact, the administrative record makes clear that
the serious and sensitive labor issues of concern to the Unions
were explored and that considerable attention was focused on
Norwegian Air’s business model and its potential impact on
airline employees. Final Order at 4; see, e.g., Answer of Allied
Pilots Ass’n to Application of Norwegian Air Int’l Ltd., DOT-
OST-2013-0204-0006 (Dec. 20, 2013); Reply of Norwegian
Air Int’l Ltd., DOT-OST-2013-0204-043 (Feb. 21, 2014). In
granting the permit application, the Secretary considered “the
totality of the record.” Id. at 5. Further, to the extent the
Unions were concerned that Norwegian Air would hire through
employment agencies under contracts “governed by the laws of
a country other than the carrier’s licensing country” and
deprive its employees of a “collective say over their wages and
4
working conditions,” Joint Reply Comments of Air Line Pilots
Ass’n, DOT-OST-2013-0204-0161 (Aug. 25, 2014) at 10-11,
the Secretary’s reliance and expectation Norwegian Air would
implement its voluntary commitments, consistent with law,
suggests these concerns underlying the Unions’ requests were
considered.
Although it cannot be gainsaid that the Secretary should
have explained his reasons for not including the Unions’ timely
and germane conditions in the permit, cf. BNP Paribas Energy
Trading GP v. FERC, 743 F.3d 264, 270 (D.C. Cir. 2014), this
is not a case where the Secretary “entirely failed to consider an
important aspect of the problem,” State Farm, 463 U.S. at 43.
Nor do the Unions make that precise argument, instead
focusing on the Secretary’s failure to consider their requested
permit conditions. See Pet’r’s Br. 33-34. Under the
circumstances, the Unions’ immediate objection to non-
inclusion of their conditions as terms in Norwegian Air’s
permit fails. But there remains another avenue by which the
Unions can potentially obtain additional protections for labor
interests and rights during the operational phase of the permit
— by requesting action by the Joint Committee, see 2010
Protocol art. 4, para. 2.
SENTELLE, Senior Circuit Judge, concurring: Because I
agree with the majority that the standing question in this case is
governed by controlling precedent in International Brotherhood
of Teamsters v. U.S. Department of Transportation, 724 F.3d
206 (D.C. Cir. 2013), I concur in the opinion of the court.
Because I disagree with the International Brotherhood opinion,
I write separately to express my belief that if we were writing on
a clean slate, we should dismiss for want of standing rather than
denying the petition on its merits.
Both International Brotherhood and the present case
depend on the application of our competitor standing precedents.
I have no problem with the proposition that the competitors of
a regulated entity have standing to challenge the application or
relaxation of regulations affecting their competitor. My
difficulty is that neither the union in International Brotherhood
nor the union in the present controversy is a competitor of the
regulated entity. Unions do not compete with airlines. Airlines
compete with airlines.
Although the majority today, relying on International
Brotherhood and earlier cases, asserts that the actions of the
government cause putative harm to the petitioner, this does not
appear to me to be the case. The possible future harm to the
union members in each instance is caused, not by the actions of
the government, but by the actions of a third party who is not the
competitor of the petitioner. Cf. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561-62 (1992).
But, again, we do not write on a clean slate, and given the
precedential force of the case decided by the court, I join the
court’s decision.