[00:00:00] Speaker 03:
The next case, United States v. Hansen, has been submitted on the briefs, as has Tempe Arcos v. Mundy. The next case on calendar for argument is Nassar v. JetBlue.

[00:00:59] Speaker 03:
Morning, counsel. Good morning.

[00:01:02] Speaker 00:
May it please the court, Jennifer Erickson-Bach, on behalf of Plaintiff Appellant Daniel Nassar and the proposed class.

[00:01:10] Speaker 00:
This morning, I'd like to reserve three minutes for rebuttal. I'll be keeping track of my own time. All right.

[00:01:16] Speaker 00:
In this morning's appeal, we asked the court to hold JetBlue Airways, a sophisticated global corporation, to the express terms of its own agreement. This result is warranted for three reasons. First, it's consistent with the analysis in the three federal cases that have considered the precise language that's before the court this morning. Second, it's consistent with black letter rules of contract interpretation that, among other things, require this court to give full meaning to all material provisions within the agreement.

[00:01:49] Speaker 00:
And finally, holding an airline to the terms that the airline itself stipulates It's consistent with the public policy undergirding the Airline Deregulation Act, as explained by the United States Supreme Court in the decision American Airlines versus Wolins. This morning, I intend to spend my time focusing on the first two arguments. But of course, I welcome questions on any topic.

[00:02:13] Speaker 01:
Counsel, not to throw a curveball at you, but you may or may not know that we have a case following up after yours. And the question there is whether the airlines are even entitled to hold this money that has been refunded or partially refunded.

[00:02:34] Speaker 01:
And the TSA is claiming that the airlines don't have that authority. And you may know the 11th Circuit just came out with an opinion that said TSA has the right to those monies.

[00:02:48] Speaker 01:
If we were to conclude that TSA has the right to those monies, what effect does that have on this case? Because wouldn't that just mean the airlines don't have this money in the first place, so your class action would have to, I don't know, proceed against TSA, or what would happen?

[00:03:08] Speaker 00:
We agree that the case has a significant impact on our appeal. I would disagree with the particular conclusion that you suggested.

[00:03:18] Speaker 00:
With regard to the other case that's pending, on Monday, the 11th Circuit, held that the airline's practice of issuing expiring credits did not constitute a refund under the TSA regulations. And I appreciate this court has yet to weigh in on the topic, but we believe that if that holding were to continue here, that it has a very strong effect on this appeal, and in particular on the argument that JetBlue advances under the Woolens decision. Specifically, JetBlue, one of the main arguments in JetBlue's brief, is that it would be improper for our case to proceed under woolens because it requires the district court to enlarge the contract based on external policies.

[00:04:01] Speaker 00:
But what we would point out is that argument hinges on the court agreeing that the definition of the word refund is actually ambiguous. And here what we think the significance

[00:04:11] Speaker 01:
Well, I'm not necessarily disagreeing with you on that point, but there's a preliminary point which I'm trying to grapple with, which is the 11th Circuit also held that the money did not belong. It had to be turned over to the TSA from the beginning, so the airlines never should have had it.

[00:04:30] Speaker 01:
Now, we'll have to figure that out. But if we adopted that, what would that mean for your case? Because you would be suing the airlines for money that they don't really have any entitlement to.

[00:04:44] Speaker 01:
if I understand that correctly. Again, these are walking down hypotheticals.

[00:04:49] Speaker 00:
Sure. We certainly agree the airline doesn't have any entitlement to the money, but we do believe that we would still have a contractual remedy against JetBlue Airlines, regardless of where the money ultimately ends up.

[00:05:00] Speaker 03:
What would be your remedy at that point?

[00:05:03] Speaker 03:
If we hold that JetBlue was not allowed to keep the money and it had to go back to TSA, what would your remedy against JetBlue be?

[00:05:15] Speaker 00:
In our view, the money is fungible. We would still have a remedy to recover the $5.20.

[00:05:20] Speaker 03:
But not from JetBlue, because JetBlue wouldn't have it anymore.

[00:05:29] Speaker 00:
If your honors would permit, I would love to submit some supplemental briefing on that.

[00:05:32] Speaker 03:
I'm sorry?

[00:05:33] Speaker 00:
I would love to submit a supplemental briefing to address your question. It's not one that I had considered.

[00:05:40] Speaker 00:
That's fair. It's been a fast-moving week.

[00:05:45] Speaker 03:
Well, so let's look at the preemption issue then, which is one that's presented to us. Tell us your best argument as to why your claim isn't preempted by the Airline Deregulation Act.

[00:06:00] Speaker 00:
Under the Supreme Court decision in Woolens, there's an exception to the preemption, to the ADA preemption, for claims that are brought under the terms of the contract that an airline itself has stipulated. And here we believe that's precisely what Mr. Nassar is attempting to do.

[00:06:18] Speaker 03:
Well, the sticking point in the case is whether or not the regulations under which you seek relief were sufficiently delineated in the contract.

[00:06:30] Speaker 03:
That's correct. Okay. So what's your response to the argument that those regulations were not sufficiently delineated. And what case supports your argument?

[00:06:40] Speaker 00:
Sure. We believe that the plain language of paragraph 32 clearly signals JetBlue's intent to incorporate TSA regulations into the terms of its agreement. The primary case that supports this holding is the Northern District of Texas opinion from 2009, incliner versus Southwest Airlines.

[00:07:00] Speaker 03:
But, Counsel, you know that's not precedent for us. So if we declined to follow that case, do you lose?

[00:07:08] Speaker 00:
No, I would disagree with that statement. You would disagree with what statement? That we would lose if you don't follow Kleiner.

[00:07:14] Speaker 03:
Okay, tell me why you wouldn't lose. You said that's your best case. So if we decline to follow that case, why don't you lose if that's your best case?

[00:07:24] Speaker 00:
Because if you set aside Kleiner and then the subsequent decisions, the Fifth Circuit decision in Bavacqua and the Southern District of California decision in the flight disruption case, litigation, all three of which include the identical analysis regarding the identical provisions, then there simply is no case that addresses the language before the court this morning. And so we would argue it's a blank slate. Even if you reject Kleiner, Bavacqua, and the flight disruption litigation, that still doesn't give you the answer to what's occurring in our contract of carriage.

[00:07:55] Speaker 04:
So the contracted issue here says that the contract will be performed in compliance with all applicable federal laws and regulations, which is a fairly general statement. And even if we were convinced by a district court decision from the Northern District of Texas, that could not override a decision from the Fifth Circuit. So in the Fifth Circuit in – I don't know how to pronounce it – said that a statement that the contract needs to comply with all applicable laws doesn't convert it into an enforceable contractual term.

[00:08:33] Speaker 04:
So the Fifth Circuit seemed to reject the case that you're relying upon.

[00:08:39] Speaker 00:
We would respectfully disagree with that analysis on what the Fifth Circuit has said on this issue. The first thing that I would point out is that the decision in Ono, although it came just one year after Kleiner, it doesn't mention Kleiner by name or specifically discuss the contractual language that was an issue in Kleiner. So we don't think there's any express abrogation in the Ono decision.

[00:09:01] Speaker 03:
Counsel, isn't there a little bit of difference between a contract that says they will adhere to all applicable regulations and one that specifically names the regulations that they are agreeing to be bound by. In this case, there was some specificity regarding the regulations. It wasn't just all applicable regulations. It was specifically the TSA regulations.

[00:09:27] Speaker 00:
Yes, we would agree with that, and that analysis is consistent with what you see in the Fifth Circuit decision in Bavacqua, which came quite a bit after Ono. And there I would note that the panel in Bavacqua, composed of Fifth Circuit judges Jones, Smith, and Ho, looked specifically at the language in question and specifically noted, as Your Honor did, that it highlighted the TSA. was an agency by which the airline had agreed to be bound. And then it also looked at the remaining language in the provision and affirmatively stated that that language indicated an intent to incorporate external regulations into the agreement.

[00:10:03] Speaker 00:
So we think Bavacqua unambiguously supports the outcome that we're urging in this case. And we think Ono doesn't undercut it because it doesn't expressly overrule Kleiner. And also, Ono's relying on the same underlying case law, Woolens and the Lynn T case from the Fifth Circuit, which is the same language that Kleiner relied on in reaching its conclusion. So we don't think that there's any abrogation there.

[00:10:32] Speaker 00:
with regard to ONO and that the Fifth Circuit decision in Bavacqua should be controlling here.

[00:10:42] Speaker 00:
Moving on, if there's no other questions on the federal case law in issue, I would move on to the rules of contract interpretation. And we think that there are four primary rules that support the result that we're urging in this case. First and most important, as I mentioned in my roadmap, is the rule that the court should give full meaning and effect to all material provisions contained within an agreement. And we believe that's what we're asking the court to do here. The plain meaning of the paragraph 32 in JetBlue's contract of carriage acknowledges that it's not specifically listing the TSA regulations, but it nevertheless intends to be bound by those regulations as it performs its obligations under the contract.

[00:11:27] Speaker 00:
We believe that there's no way to read paragraph 32 and conclude that you don't have incorporation unless you don't give meaning to the second half of that paragraph.

[00:11:40] Speaker 00:
Under New York rules of contract law, you can tell what the intent of the language here is because it tracks that in a typical notwithstanding clause. And so while this is specific to New York, I think it's also common sense that a skilled drafter of a contract, such as JetBlue Airlines, is able to include a provision that acknowledges that it's doing something different, that it's going against the typical method for incorporating an external regulation, and nevertheless signal its intent to affect the incorporation.

[00:12:14] Speaker 00:
And that's what we think is being reflected in the language here this morning.

[00:12:20] Speaker 00:
The third rule that we would urge the court to follow here is the rule that agreements are to be construed in accordance with the party's intent, and the best evidence of intent can be found within the plain language contained in the four corners of the document. And here we think that paragraph 32 is clear on intent, and we would encourage the court not to look outside the document.

[00:12:42] Speaker 00:
And then finally, the last rule is that contracts should be strictly construed against their drafter, especially contracts of adhesion such as the one here. Here we know that JetBlue Airlines was a sophisticated party capable of including whatever language it chose in its agreements, and it chose to include this language. There's no reason to excuse JetBlue from the agreement that it voluntarily undertook.

[00:13:07] Speaker 00:
The court has no further questions. I'll reserve the balance of my time for rebuttal. All right. Thank you, counsel. Thank you.

[00:13:20] Speaker 02:
Good morning, your honors. May it please the court. Mark Johnston on behalf of the JetBlue Airways Corporation. I'd like to respond in the order of the questions that came from the panel, starting with the impact of the argument in the case to come later this morning, as well as the decision of the 11th Circuit.

[00:13:40] Speaker 02:
That case, both the 11th Circuit and the case that this panel will hear later this morning, underscores that this is an area of federal regulation that the ADA specifically contemplated would be reserved for the federal authorities such as TSA and DOT, that the administration and regulation of the September 11 security fee, as it's called, has been reserved to those federal agencies.

[00:14:07] Speaker 01:
But you would agree then that the 2002 guidance, under the 2002 guidance, you've been acting improperly here by refusing a full refund?

[00:14:18] Speaker 02:
I would not agree with that.

[00:14:20] Speaker 01:
Well, you just gave wholehearted support of the 11th Circuit.

[00:14:25] Speaker 02:
The reason I would not agree with that, Your Honor, is because guidance does not have the force and effect of law.

[00:14:30] Speaker 01:
Okay, so you disagree with the 11th Circuit opinion in that regard?

[00:14:33] Speaker 02:
I disagree with their conclusion that it's mandated under the regulation because the regulation does not specifically state that a refund in a non refundable ticket context has to be made to the original form of payment that this is a guidance and interpretive instruction from the regulating agency. But there's case law Perez and the other cited in our brief that it doesn't have the force and effect of law. So I would disagree with the 11th Circuit on that point. But the broader point I'm trying to make is that... But all the good stuff you like out of the 11th Circuit.

[00:15:05] Speaker 01:
Yes, Your Honor.

[00:15:07] Speaker 02:
The broader point, though, is this is an area of federal regulation that Congress has explicitly reserved for the federal government. So what do they do?

[00:15:15] Speaker 01:
It seems very clear that under the federal regulation, the anticipation is that the customers are entitled to, maybe it's an overstatement to say they get the full 560 or 1120 back. I suppose there could be some costs associated with a non-traveling passenger, but The extra money is contemplated by the federal regulations to go back to the customer.

[00:15:47] Speaker 01:
That's what they're trying to do. You're saying this is an improper vehicle to do it. Maybe you're right.

[00:15:52] Speaker 02:
Yes.

[00:15:52] Speaker 01:
What can they do? Not that you need to be their attorney, but is there a mechanism?

[00:15:56] Speaker 02:
Yeah, there are complaints that can be filed with DOT. There are statutes that regulate unfair or deceptive practices within the airline industry. A complaint with DOT could trigger an investigation, a fine, a penalty, an order of injunctive relief. But that is in the administrative process. And that's how the Alaska case came to this panel. It went through a final agency determination, an appeal under the APA, and that's how it is before your honors later this morning. And that is the process by which Congress contemplated regulation of the TSA security fee.

[00:16:32] Speaker 01:
Yeah, except that we don't have any passengers or non-traveling passengers, however you want to define, former passengers, potential passengers. We don't have them in the second case. That's what makes that case a little unusual here.

[00:16:47] Speaker 01:
And so, I mean, we can decide this case in one way, but do we need to be more concerned about the bigger issue?

[00:16:54] Speaker 02:
Well, I would say that that's an issue for Congress. If they're going to allow a private right of action for collection or violation of this regulation, it has to be by statute. It cannot be by regulation. And that's the Buck decision from the First Circuit, which discusses the implied right of action doctrine and how effectively This case is a great example of an end run of that doctrine because this case is just about a violation of a regulation. You cannot look to the contract of carriage and decipher any language saying that we will give you a refund on a non-refundable fare upon cancellation of the TSA fee.

[00:17:35] Speaker 02:
You have to go to an external regulation. And as Your Honor pointed out, you don't stop there because the regulation does not mandate a refund to the original form of payment. then you have to go to agency guidance, which the 11th Circuit did do in interpreting the obligations there. But under Wolands, that is too far afield from the self-imposed obligation that is necessary to create an exception under a breach of contract theory.

[00:18:02] Speaker 03:
And I think... Counsel, I have a little more fundamental question. Is there anything in the Aviation and Transportation Security Act or the regulations... that expresses any congressional intent that these security fees were to go to the airlines.

[00:18:21] Speaker 02:
That they were to remain with the airlines upon cancellation?

[00:18:25] Speaker 03:
That the airlines were to be the ultimate beneficiaries of this security deposit. What language would support a conclusion that the airlines are entitled to keep any of these fees Is it in the statute? Is it in the regulations? What would support the argument that the airlines have any claim to these fees?

[00:18:54] Speaker 02:
I'm not aware of any authority, Your Honor, and I would defer to counsel who will be arguing that point more closely in the subsequent case today. And that's not our argument that JetBlue is entitled to keep this fee. In fact, JetBlue's practice has been upon cancellation. to return the fee to TSA. I think it is separate and different than the other airlines. There's not a case vis-a-vis the TSA such as the Spirit case or the Alaska case later today involving JetBlue.

[00:19:25] Speaker 03:
But we wouldn't be here unless there were some funds that ultimately ended up in the coffers of JetBlue as opposed to the pocketbooks of the passengers.

[00:19:35] Speaker 02:
Yeah, and I, well, it, And I'll represent to the panel, this was not part of the complaint, and this was on a Rule 12 motion, but JetBlue does not keep any of the money in its coffers. It remits upon cancellation, or I'm sorry, upon expiration of the credits, it remits the TSA fee to TSA.

[00:19:54] Speaker 03:
But what about the vouchers? Is that remitting anything? If the flight is canceled, isn't that why we're here? Because that represents money that was not

[00:20:06] Speaker 02:
technically refunded well that that's separate and apart yes your honor from from the tsa carve out of the 560 or the 1120 there is a credit pursuant to the contract of carriage that the passenger receives which under the regulations there's no obligation that it be to the original form of payment in a non-refundable ticket context and that is what the bargain between the airline and the passenger is when they purchase a non-refundable fare.

[00:20:36] Speaker 01:
But your point is if it's $185 credit and the credit is not used within the 60 days or the one year, your position is you give the $11.20 or the $5.60 to TSA and then you would take the rest as revenue.

[00:20:54] Speaker 02:
That is JetBlue's practice, yes.

[00:20:57] Speaker 01:
Is that in the record anywhere?

[00:20:59] Speaker 02:
No, it is not. We were simply on a Rule 12 motion challenging the allegations in the complaint.

[00:21:05] Speaker 04:
So to be clear, JetBlue is taking a different position from the other airlines in that it is not saying we refunded the money, and so we get the credit on this account to the TSA. Okay.

[00:21:22] Speaker 02:
Yes, my understanding is JetBlue's practice is different than the other airlines in that regard, and that's why JetBlue has not been issued a penalty or any finding by TSA as a result of the audit process.

[00:21:34] Speaker 04:
Is there any, and this may not be fair, and just tell me if it's not something within your knowledge that you've considered, but is it your position that this is just an instance of the wrong defendant and that the plaintiffs should have brought their claims against the government?

[00:21:50] Speaker 02:
I think it's a little bit more nuanced. I think wrong defendant, yes, because there's no private right of action for a violation of this regulation. I think, as I stated earlier, that the right recourse for the passengers is a complaint with DOT and that the federal regulators then would assess and weigh the conduct of the air carrier.

[00:22:13] Speaker 03:
So, counsel, just so I understand your position, are you saying that all security regulations fees that were collected on behalf of the TSA were actually remitted to the TSA. Is that your position?

[00:22:26] Speaker 02:
Yes, it's someone I could elaborate a little bit more. Upon payment or purchase of a ticket, the fee is remitted to TSA. Upon cancellation, the airline gets a credit. They're paid monthly on a ledger. And if a passenger cancels their ticket, a credit is given back to JetBlue. JetBlue issues a credit to the travel bank of the passenger that's good for one year. And upon expiration, if that credit is not used, then JetBlue remits the 560 back to TSA.

[00:23:00] Speaker 01:
The credit comes back from TSA?

[00:23:03] Speaker 01:
Yes, upon cancellation. That's confusing to me.

[00:23:06] Speaker 02:
The entire process is very confusing, and I've had to speak with many accountants just to explain it to me how it works.

[00:23:13] Speaker 01:
Well, but that implies that TSA – thought they weren't entitled to the TSA fee, which is contrary. We'll have to get into that in the next case.

[00:23:23] Speaker 02:
Again, I think a lot of this discussion is better suited to the subsequent case.

[00:23:28] Speaker 04:
But if I understand what you're explaining to us, your position is different from the other airlines in that JetBlue doesn't then say, well, what we did was technically a refund to the customer and keep the money. Instead, you're saying you then remit the credit you received. You end up remitting that back to the TSA.

[00:23:46] Speaker 02:
That is JetBlue's practice, and I do believe it is different than some of the other air carriers.

[00:23:51] Speaker 03:
And so what the plaintiffs are seeking is the amount that was not refunded for the fare, not the security deposit.

[00:24:00] Speaker 02:
In this case, it's the security fee.

[00:24:03] Speaker 03:
But why, if the security fee was remitted to TSA, why would JetBlue be liable for that?

[00:24:10] Speaker 02:
Well, I don't think it's liable for multiple reasons, but yes, at a very practical level, you're correct, Your Honor, above and beyond that it's preempted under Wolins either way.

[00:24:21] Speaker 03:
I'm missing something here. If you remitted the security fee in every single instance where a flight is canceled to TSA, that's your position, right?

[00:24:36] Speaker 02:
Just a finer point, upon expiration of the credit When the flight is canceled, the fee comes from TSA back to JetBlue because they've remitted it upon purchase.

[00:24:49] Speaker 03:
Right.

[00:24:50] Speaker 02:
And that goes in the passenger's travel bank, and it's good for one year. However, if that credit expires, the passenger never uses it, JetBlue gives the money back to TSA.

[00:25:07] Speaker 02:
I'd like to speak just briefly about Kleiner, Ono, Bevacqua, the series of cases in the Fifth Circuit.

[00:25:15] Speaker 02:
We definitely believe that Kleiner was abrogated, although not specifically by Ono. But Ono stated that, in that case, the Northwest contract encouraged which self-imposed obligations is a large stretch from the simple references to the need to comply with all applicable law. That's exactly what the Kleiner Court did. There was no specificity. There was no regulation.

[00:25:45] Speaker 02:
And Ono said that that is far too broad a statement to create a self-imposed obligation.

[00:25:54] Speaker 02:
The gravamen of the argument is that subject to compliance with a litany of applicable laws is a self-imposed obligation by JetBlue. That's simply not true. The airline must comply with these federal regulations, whether or not it recognizes it or not in its contract of carriage. And as other courts in the Ninth Circuit have recognized, subject to is not the same as incorporating herein.

[00:26:25] Speaker 02:
It's simply a statement of recognition by the airline that it is subject to these regulations. And the later clause that Nassar relies upon regarding the nevertheless binding on the air carrier and passenger, once again, is just notice to the passenger That notwithstanding everything that's in this contract of carriage, there are additional federal obligations and requirements that are imposed on not just the airline, but the passenger as well.

[00:26:57] Speaker 02:
One of the first things you hear when you board a flight is. It's a violation of FAA regulations to smoke on this aircraft or to disable a smoke detector, et cetera. That's an obligation that the FAA places on the passenger. Nowhere in the contract of carriage is that obligation spelled out, but the contract of carriage is alerting the passenger that in addition to the terms of this contract, There are other federal regulations that are binding on both the passenger and the airline.

[00:27:30] Speaker 02:
That is not to say it's incorporated as a contractual term. And indeed, their reading would have all of FAA DOTs and TSA's regulations as incorporated terms. But that is not what Wolin's instructs. Wolin says it must be a self-imposed obligation and it must be. be one that can be read without enhancement by any external policy or regulation. You cannot read JetBlue's contract of carriage and decipher what the contractual obligation is without going to the regulation regarding TSA fees, and then even the guidances that have been issued, the 2002, the 2020, and the GAO report.

[00:28:16] Speaker 02:
In fact, the complaint characterizes all of these sources as secondary sources.

[00:28:23] Speaker 02:
So they even admit that these are external and separate and apart from the contract.

[00:28:28] Speaker 03:
All right, counsel, thank you. Are there any questions?

[00:28:30] Speaker 02:
Thank you.

[00:28:30] Speaker 03:
All right, rebuttal.

[00:28:43] Speaker 00:
Good morning. Just a couple of quick points on rebuttal.

[00:28:49] Speaker 00:
I think I would start with the language in the contract of carriage regarding subject to Here if you just stop at subject to we would agree that it's a much harder case for incorporation But of course the full language in paragraph 32 includes additional Language both referencing the fact that it hasn't specifically listed the regulations which is of course a typical way that you would incorporate external regulations the nevertheless language and It also uses affirmative active language discussing the regulations being binding upon the airline as it performs its obligations.

[00:29:28] Speaker 00:
And then it also specifically lists the TSA as a specific agency whose regulations it agrees to be bound by. So here, we don't believe you can stop reading after subject two. Instead, you need to consider the entirety of the paragraph taken together.

[00:29:42] Speaker 03:
Council, do you take issue with opposing Council's representation that JetBlue ultimately refunds all security deposits, transmits all security deposits to TSA?

[00:29:57] Speaker 00:
We haven't had discovery on the issue yet, so it is hard for me to say what they do or don't do with the money.

[00:30:02] Speaker 03:
Well, if that's true, then what's your cause of action?

[00:30:07] Speaker 00:
I think, as I sat at council table thinking through Your Honor's questions, I think the answer is that once the passenger gives JetBlue the money, whatever JetBlue does with it, it can remit it to TSA. It can spend it on other things.

[00:30:23] Speaker 00:
It doesn't alleviate JetBlue from its obligation to refund the money to the passenger. I think that's what we would come up with in response to that particular question.

[00:30:32] Speaker 01:
I don't understand that argument, though, because if that is sort of a tax, I mean, you wouldn't get to get a tax refund. If I go into a store and pay a dollar and I have 6% tax, and I take it back, I mean, if that tax has already been paid to the state, I don't think you get an automatic refund of the dollar and six cents. I mean, you do of the item, but it's not intuitive to me that Now, I think a lot of times, I think in the tax refund, they do give it back because then they say, well, we don't owe the tax on that.

[00:31:08] Speaker 01:
But that's the indeterminate way in which this TSA fee works. And I guess until the 11th Circuit spoke, nobody knew what the heck was supposed to happen with it.

[00:31:19] Speaker 00:
It is a unique situation, we would agree.

[00:31:22] Speaker 00:
And I would hopefully be able to shed some light on it in a supplemental file.

[00:31:26] Speaker 04:
So do you think that your clients have a claim against the TSA or the government in some fashion for these funds, assuming what opposing counsel has represented is accurate, that JetBlue does not have the $11.20? They remitted it to the TSA in compliance with TSA guidance and regulations. Right. which you're alleging they've incorporated into the contract. So what's your remedy? Do you have a remedy against the government?

[00:31:55] Speaker 00:
We think whatever else is clear, at least following the 11th Circuit decision, is that our clients are entitled to the refund that the TSA regulations contemplate. And I appreciate your Honor's point that it's an open question whether the refund then would come from JetBlue or come from the TSA.

[00:32:13] Speaker 00:
There's no further questions. We would urge the court to reverse. Thank you, counsel.

[00:32:18] Speaker 03:
Thank you, counsel.

[00:32:20] Speaker 00:
Sorry.

[00:32:22] Speaker 03:
The case just argued is submitted for decision by the court.