[00:00:26] Speaker 03: Good morning. [00:00:27] Speaker 05: Good morning, Your Honor, and may it please the court [00:00:31] Speaker 05: The Department of Transportation is required by its authorizing statute to consider, in its regulation of the airline industry, the prevention of unfair and deceptive practices. [00:00:46] Speaker 05: In response to the rulemaking petition filed by Flyers Rights in this case, the department simply failed to offer any adequate explanation for why it would not in any way [00:00:56] Speaker 05: address the concealment by air carriers and their deceit of passengers about the rights of international passengers to compensation for delay in international air travel under the Montreal Convention. [00:01:11] Speaker 05: At the outset, since the government has questioned the standing of Flyers' Rights to bring this challenge, I'd like to address that first briefly. [00:01:20] Speaker 05: Our contention is Flyers' Rights has associational standing [00:01:24] Speaker 05: to challenge the department's decision in this case not to engage in rulemaking because the organization satisfies first the indicia of membership criteria under the Supreme Court's decision in the Hunt case. [00:01:37] Speaker 05: Although Flyers' Rights members do not select members of the governing body, they do provide most of the financing for the organization and they do guide the activities of the organization because Flyers' Rights surveys its members. [00:01:51] Speaker 03: They make suggestions. [00:01:54] Speaker 03: They make suggestions. [00:01:56] Speaker 03: In other words, what I'm getting at is this functional equivalent argument you make. [00:02:02] Speaker 03: You've identified two members in those declarations, although they say they're members slash supporters. [00:02:14] Speaker 03: I mean, I may support a lot of things, but I'm not a member necessarily of that organization. [00:02:21] Speaker 03: So you say you have 50,000 members and supporters. [00:02:28] Speaker 03: Based on what you submitted, I only see that there are two members. [00:02:35] Speaker 03: And for all I know, based on what you submitted, those two members are funding all your operations. [00:02:44] Speaker 05: No, the members reference to members and supporters is used interchangeably because it wasn't, they weren't using it in a legal sense, but these members. [00:02:55] Speaker 03: Well, but clearly, I don't know the basis for that when we are clear that there's a difference, a lot of people, you know, and in the Supreme Court, the union do's cases, I mean, these distinctions are made. [00:03:12] Speaker 03: I'm just saying based on what you've filed, I see two members and that's it. [00:03:21] Speaker 05: Well, there are, there's information in the record, I think in the standing declaration that there are tens of thousands of individuals that. [00:03:30] Speaker 03: You say 50,000 members slash supporters. [00:03:33] Speaker 05: Well, the members who are, those are the members who finance, provide the majority financing for the organization. [00:03:41] Speaker 05: and whose views guide the activities of the organization. [00:03:47] Speaker 01: How do you become a member? [00:03:50] Speaker 05: Becoming a member basically involves signing up, you know, generally online to receive information and communications from the organization. [00:04:00] Speaker 01: Are you charged for that service? [00:04:02] Speaker 05: No. [00:04:03] Speaker 05: There's no mandatory adduce. [00:04:06] Speaker 05: And again, this is not dissimilar than the situation presented at the district court in the AARP case. [00:04:15] Speaker 03: So you talk about the apple growers case, where it's a functional equivalent. [00:04:21] Speaker 03: But there, all three criteria were met. [00:04:28] Speaker 03: Here, at best, you meet two of the three. [00:04:34] Speaker 03: you don't meet the control element. [00:04:38] Speaker 03: So why would the court view this as an association which has Article 3 standing? [00:04:48] Speaker 03: One of you mentioned to Judge Randolph, there are no membership dues, there's no initiation fee. [00:05:00] Speaker 05: The situation was similar in the AARP case. [00:05:07] Speaker 05: The case is considered by the district court applying the standards of this court. [00:05:13] Speaker 05: In AARP, which I'm a member, there are dues, but you don't have any governance rights. [00:05:18] Speaker 03: Any appellate case? [00:05:21] Speaker 03: I guess this functional equivalent. [00:05:23] Speaker 03: I was just trying to figure out what does that mean? [00:05:25] Speaker 03: Functional equivalent. [00:05:26] Speaker 03: And what are the elements? [00:05:27] Speaker 03: And so the case you cite from the Supreme Court [00:05:30] Speaker 03: clearly the three elements were met. [00:05:33] Speaker 03: Here, let's assume you met the membership element, all right? [00:05:41] Speaker 03: But you haven't met the control element. [00:05:47] Speaker 03: And so why should you be deemed a functional equivalent? [00:05:52] Speaker 05: We've cited several cases, including the two AARP cases from the US District Court in DC, in which two of the three criteria were found sufficient to be functional equivalent. [00:06:04] Speaker 03: So I'm asking you, why should this appellate court agree with that position, when the whole point of standing is to show, you know, it's a rigorous test, growing more rigorous by the decade. [00:06:22] Speaker 05: It is a rigorous test, but the [00:06:26] Speaker 05: I think the essence of what the Supreme Court was getting at in the Hunt case that was picked up on by the, in these district court cases is that the functional equivalence, the essence of it is that the organization speaks for a discrete group of people who are invested in it in some way, who support it financially, who use guide the organization. [00:06:50] Speaker 03: But we have no information about financial support. [00:06:57] Speaker 03: We know that you have two members slash supporters. [00:07:01] Speaker 03: We know that you have 50,000 members slash supporters. [00:07:07] Speaker 03: And so what's different from your group and a group of citizens who want to come together and urge certain policy changes [00:07:20] Speaker 05: The difference is that, again, the 50,000 members are the ones who provide the majority of the financial support for the organization. [00:07:31] Speaker 03: Well, you're telling me that now, but it's not in your paper. [00:07:33] Speaker 05: It's in the supplemental declaration. [00:07:36] Speaker 03: No, it isn't, as I looked. [00:07:39] Speaker 05: In the supplemental declaration and followed with the reply brief, [00:07:48] Speaker 03: So your argument is that you didn't have to demonstrate standing because it was self-evident. [00:07:55] Speaker 03: Yet the name of your organization is a fund. [00:07:59] Speaker 03: It's not an association or something else. [00:08:04] Speaker 03: So I thought, well, it's self-evident that you are an association that has standing. [00:08:16] Speaker 03: So then we get to court. [00:08:18] Speaker 03: and you're challenged and you file these supplemental declarations, but I don't know that they go far enough. [00:08:25] Speaker 03: That's all I'm raising with you. [00:08:27] Speaker 05: And again, the basis that we believe that the burden was on us to show that we had individual members who suffered specific concrete injuries and it's undisputed and it's all that's required that at least one [00:08:42] Speaker 05: of the members of this 50,000 suffered a concrete injury, the individual who had seven hours. [00:08:48] Speaker 01: If you have members that participate in the governance of your organization, that's one assurance that you're not off on a lark, that you'd be voted out of office if in fact you're bringing litigation on behalf of the members that the members don't agree with. [00:09:06] Speaker 01: If you don't have that, if you don't have any governance, if you don't have any members that have any authority, then the question becomes, are you really representing anybody in this particular matter? [00:09:21] Speaker 05: The same, again, the same is true, found true in the American Association of Retired Persons, which is the largest membership, acknowledged to be one of the most powerful in the United States. [00:09:33] Speaker 05: And the judge found, district judge in that case, that they did represent the interests of... The standing issue was raised. [00:09:40] Speaker 01: You have another case pending before this court, don't you? [00:09:44] Speaker 01: You have another case pending before this court? [00:09:47] Speaker 01: We do. [00:09:48] Speaker 01: And that hasn't been decided yet? [00:09:49] Speaker 01: That hasn't been decided. [00:09:51] Speaker 01: Was the issue of standing raised in that case? [00:09:53] Speaker 05: The issue of standing was raised in that case, but in the prior case, in terms of what our burden was in the opening brief, in the prior case we brought before this court on the issue of regulation of seat sizes, the government didn't question the standing of the organization. [00:10:10] Speaker 02: Well, the plaintiff there was you and the organization. [00:10:15] Speaker 02: It wasn't just the organization that was a plaintiff in that case. [00:10:18] Speaker 02: It was you and an individual. [00:10:24] Speaker 05: Well, the plaintiff in this case also has experienced the situation, although because of his expertise he's not deprived of knowing information about his rights under the Montreal Convention. [00:10:41] Speaker 02: I guess your theory is that if you were off on a lark [00:10:45] Speaker 02: you'd go bankrupt because people would cut off the funds that they're sending. [00:10:49] Speaker 05: Exactly. [00:10:50] Speaker 03: And if they didn't, that's right, if they didn't... Well, I'm thinking about organizations where there are one or two people who fund the organization. [00:11:01] Speaker 03: And they may go off on large, but they fund the organization. [00:11:06] Speaker 03: They're dictating the policy. [00:11:09] Speaker 03: They can throw the CEO out. [00:11:13] Speaker 03: They don't like what's going on. [00:11:14] Speaker 03: That's not your organization. [00:11:16] Speaker 05: That's right. [00:11:17] Speaker 05: That's not our organization. [00:11:18] Speaker 05: It's funded by many, many people with their individual contributions. [00:11:23] Speaker 05: And those are the individuals whose views are also solicited and guide the organization who are treated as members. [00:11:30] Speaker 03: So if I make a contribution to an organization, [00:11:36] Speaker 03: I'm not a member, necessarily. [00:11:39] Speaker 05: Yes. [00:11:39] Speaker 05: If you are on the list and you make a contribution, you are treated as a member of the organization. [00:11:44] Speaker 03: I know, but all I'm getting at is just suppose all these charitable contributions one makes. [00:11:51] Speaker 03: Doesn't mean I'm a member of the organization to which I'm making [00:11:57] Speaker 03: That's true. [00:11:58] Speaker 05: Many charitable organizations are not membership organizations. [00:12:04] Speaker 05: They don't treat the individuals as members in any meaningful sense. [00:12:10] Speaker 01: Can I ask you, I want to ask you about the Mertz a bit. [00:12:13] Speaker 01: One of your arguments as I understand it is that the [00:12:18] Speaker 01: the response by DOT to your petition for rulemaking was inadequate because it was very brief, et cetera, right? [00:12:29] Speaker 01: Yes. [00:12:29] Speaker 01: That's your argument. [00:12:31] Speaker 01: Are you aware that under the APA, and this is governed by the Administrative Procedure Act, 555E requires the agency to give only a brief response in denying a petition for rulemaking. [00:12:47] Speaker 01: So they were in compliance, or the DOT was in compliance with the APA in not saying anything more than it did. [00:12:56] Speaker 01: You have enough to go on. [00:12:58] Speaker 01: So, you know, I don't see where the violation of the APA is. [00:13:03] Speaker 05: It's not the brevity of the response that's the issue. [00:13:07] Speaker 05: It's the assertion. [00:13:10] Speaker 05: in that one paragraph that the carriers are adequately disclosing the passengers, their compensation rights is simply not supported by the record. [00:13:20] Speaker 01: Didn't they also say that we have a rulemaking, or we do this in a separate rulemaking? [00:13:25] Speaker 05: That separate rulemaking was to require the airlines to [00:13:32] Speaker 05: post-language, put language in the tickets or ticket envelopes or at the counter, and I'll, if I could just briefly read it to you because it's clear it does not inform anybody that they have any rights or the nature... And let me just follow up on that. [00:13:49] Speaker 01: Did you participate, did your organization participate in that rulemaking? [00:13:54] Speaker 01: I think they did participate in the rulemaking on the... You put comments on the proposed regulation? [00:14:06] Speaker 05: I'd have to check. [00:14:07] Speaker 01: I'm not sure if they... Did your organization file a petition for judicial review of those regulations? [00:14:14] Speaker 01: No, because it wasn't... We didn't regard it as... As sufficient? [00:14:21] Speaker 05: Isn't that a reason to challenge it? [00:14:23] Speaker 05: At the time these regulations were issued, we had already filed this rulemaking petition. [00:14:30] Speaker 05: Our own rulemaking petition was under review. [00:14:32] Speaker 05: Well, you can file two. [00:14:34] Speaker 02: That doesn't mean you couldn't file another challenge to the final rule that issued. [00:14:38] Speaker 02: The fact that you have this case pending doesn't preclude you from filing a challenge. [00:14:41] Speaker 01: That's true. [00:14:42] Speaker 01: So what makes me wonder is whether the proper forum for the complaints that you're raising before us would have been [00:14:49] Speaker 01: in a challenge to that particular rulemaking, not as a petition for its entirely separate rulemaking, which would almost necessarily duplicate to some extent the prior rulemaking. [00:15:02] Speaker 01: What's your response to that? [00:15:05] Speaker 05: The response is that what we were seeking in the petition for rulemaking was some requirement for disclosure of the existence and rights of the passengers under the Montreal Convention, whereas this other rulemaking, all it was was to advise passengers that they didn't have, you know, they basically didn't have rights, that their rights were limited. [00:15:28] Speaker 03: But the notice of proposed rulemaking in the other docket didn't say that. [00:15:38] Speaker 03: In other words, it wasn't limited that way. [00:15:40] Speaker 03: What the agency ultimately decided to do may be limited. [00:15:46] Speaker 03: But the notice of rulemaking, the way the agency responded to your petition was to say, you know, we're going to consider these things in this other rulemaking. [00:15:58] Speaker 03: Now, whether they did, you didn't submit comments, and then ultimately your view is that what the agency has required is insufficient. [00:16:13] Speaker 05: It doesn't, right. [00:16:13] Speaker 05: It's their statement that- What about Judge Randolph's point? [00:16:19] Speaker 05: That's right. [00:16:19] Speaker 03: Their statement that the language that they require- In other words, we have held that an agency can properly dismiss a petition [00:16:28] Speaker 03: where there is another proceeding that's covering the same territory. [00:16:34] Speaker 03: And you can file comments, participate, or when the agency comes out with its final rule, you can seek a petition for review. [00:16:48] Speaker 03: So why should we even deal with this case when there is this other proceeding that was going to consider the same basic issues [00:16:57] Speaker 03: of concern to you that the airlines were not properly disclosing that international passengers had a right to recover damages for delay. [00:17:13] Speaker 05: Because again, our petition I think was already pending at the time this other proceeding was taking place. [00:17:20] Speaker 03: Doesn't matter, says our president. [00:17:23] Speaker 03: The agency doesn't have to duplicate its work [00:17:28] Speaker 05: That's true. [00:17:29] Speaker 05: But what they did come up with was not adequate and was not actually responsive to our petition. [00:17:37] Speaker 02: That's a very good reason to bring an APA challenge to that rule, to participate in the rulemaking and to bring a challenge to it. [00:17:44] Speaker 02: It was covering what's going to be disclosed to passengers. [00:17:49] Speaker 05: Yes, that was part of the rulemaking that the DOT already did. [00:17:55] Speaker 02: Part of the rationale here too is that Article 3 of the Montreal Convention requires the very disclosure that the government has required here, that is of the limitations on liability. [00:18:08] Speaker 02: Is there anything in the Montreal Convention that you can identify that requires disclosure of the affirmative rights to compensation or protection? [00:18:23] Speaker 05: It's a good question whether the mere parroting of the language of the Montreal Convention that the treaty governs. [00:18:31] Speaker 02: I'm not talking about mere parroting. [00:18:32] Speaker 02: I'm talking about the Montreal Convention requires a certain disclosure, and you don't dispute that the disclosure that's done here meets that obligation under Article 3. [00:18:44] Speaker 02: That's not parroting. [00:18:45] Speaker 02: That's complying with Article 3 of the Montreal Convention. [00:18:48] Speaker 02: Your argument seems to be that we need an even bigger disclosure. [00:18:53] Speaker 02: But I wanted to ask you, is there something in the Montreal Convention that requires a broader disclosure of passenger rights with respect to delay? [00:19:06] Speaker 05: We did not address that. [00:19:09] Speaker 05: We relied on the department's obligation to consider unfair and deceptive practices. [00:19:15] Speaker 05: But I think the answer to your question is yes. [00:19:18] Speaker 05: That language that says you have to disclose to passengers that the treaty governs doesn't mean that the airlines are supposed to say the treaty governs. [00:19:29] Speaker 02: Article 3 says disclose the limitations on liability. [00:19:34] Speaker 05: But I think that the limitations on liability have certainly been adequately disclosed. [00:19:40] Speaker 05: It's the existence of the rights and nature of the rights to begin with. [00:19:43] Speaker 02: But there's nothing in the convention that requires that addition. [00:19:45] Speaker 02: I'm not asking whether it's good policy or anything like that. [00:19:48] Speaker 02: As to that, that's your argument that what they've done is it's not that it's compelled by the convention, it's that it's unfair and deceptive. [00:19:55] Speaker 02: Right. [00:19:56] Speaker 02: Now if the government has approved unfair and deceptive require a certain [00:20:01] Speaker 02: mental component. [00:20:02] Speaker 02: It's not accidental, right? [00:20:03] Speaker 02: It requires an intent to mislead. [00:20:06] Speaker 02: And if the government has approved the disclosures that they've made, why isn't that sufficient grounds to determine that whatever these airlines are doing, it's not unfair or deceptive? [00:20:21] Speaker 05: Because there's nothing in that language that apprises [00:20:25] Speaker 05: the passengers of the nature of existence of their rights and the contracts of carriage. [00:20:30] Speaker 02: That's not the question. [00:20:31] Speaker 02: That's not the question. [00:20:32] Speaker 02: So no one's disputing, I don't think, that the language you want isn't there. [00:20:37] Speaker 02: That the affirmative, here's what you get, isn't there. [00:20:40] Speaker 02: The question is whether it was unfair or deceptive on the part of airlines to [00:20:48] Speaker 02: Do the disclosure that the government approved is sufficient? [00:20:51] Speaker 02: On what basis is that unfair or deceptive? [00:20:54] Speaker 02: That's a very strong language. [00:20:57] Speaker 05: It's unfair and deceptive. [00:20:59] Speaker 05: What's unfair and deceptive is their contracts of carriage on which the department also relies. [00:21:04] Speaker 05: specifically relied in concluding that the disclosure was adequate where the contracts of carriage contain provisions that are completely contradictory to the Montreal Convention. [00:21:16] Speaker 02: Don't the contracts of carriage under this new rule have to include the same language about limitations of liability, the same Article 3 language? [00:21:25] Speaker 05: The contracts of carriage? [00:21:27] Speaker 05: The contracts of carriage contain [00:21:29] Speaker 05: that language, but they also contain lots of other provisions that purport to limit the airline's liability, in addition to concealing the fact that there are passenger rights to begin with, purport to limit the airline's liability in ways that are completely contrary to the Montreal Convention, to which the departments [00:21:51] Speaker 05: response in its reef was, well, the Montreal Convention overrides that. [00:21:56] Speaker 05: But how are passengers supposed to know that, even those who bother to read the contracts? [00:22:00] Speaker 03: How are they supposed to know what? [00:22:02] Speaker 05: How are they supposed to know that the, for example, the provisions in the Delta contract of carriage that limit liability for compensation to one night refund of the unused portion of the ticket one night's lodging [00:22:14] Speaker 05: ground transportation are completely contrary to the Montreal Convention. [00:22:18] Speaker 05: And in fact, the law is that those provisions are unenforceable. [00:22:22] Speaker 05: So how's the average passenger supposed to know that? [00:22:25] Speaker 03: So what I understand basically is you want something like the brochure that the EU requires. [00:22:32] Speaker 05: That would just simply a few lines in addition to this thing that says you have no rights. [00:22:39] Speaker 05: It says you have rights to compensation. [00:22:41] Speaker 03: It doesn't say you don't have any rights. [00:22:44] Speaker 03: Any rights are limited. [00:22:46] Speaker 05: So it's the liability of the carriers is limited. [00:22:49] Speaker 03: Which implies it may be liable, doesn't it? [00:22:55] Speaker 05: Necessarily. [00:22:56] Speaker 05: Many consumer contracts are going to these courts reviewed many times. [00:23:02] Speaker 05: Limitational liability means you don't get to recover anything. [00:23:05] Speaker 03: All right. [00:23:06] Speaker 03: Why don't we hear from the respondent? [00:23:11] Speaker 03: And we'll give you some time on rebuttal. [00:23:17] Speaker 00: Good morning. [00:23:17] Speaker 00: Good morning again and may it please the court. [00:23:19] Speaker 00: I'm Matthew Glover and I represent Respondent, the Department of Transportation and Secretary Chao. [00:23:24] Speaker 03: So can I just jump to a question? [00:23:27] Speaker 03: I'm an international passenger. [00:23:29] Speaker 03: I've been sitting on the tarmac for four hours and I got sent to some city I wasn't intending to go to that I had to do all this stuff. [00:23:38] Speaker 03: So I want to sue. [00:23:41] Speaker 03: All right, let's assume I know that delay [00:23:44] Speaker 03: Maybe a basis for a cause of action against the airline. [00:23:48] Speaker 03: What do I do? [00:23:52] Speaker 03: Do I have to go directly to court? [00:23:55] Speaker 00: You can certainly file a complaint with the airline. [00:23:57] Speaker 03: Right. [00:23:57] Speaker 03: And tell them what happened and ask for them to compensate me for, I don't know, the $2,000 I had to spend renting a car to get from the new location to where I was going. [00:24:09] Speaker 03: Something like that. [00:24:10] Speaker 00: Yes. [00:24:11] Speaker 03: Suppose they turn me down, then what? [00:24:13] Speaker 03: Do I have to come to court? [00:24:15] Speaker 00: Yes. [00:24:16] Speaker 00: And I would point to, and I can't recall what page it is in the record, but we noted in the response that we have updated our fly rights web page, the section on delay, and then there's [00:24:27] Speaker 00: I can't recall the name at the moment of the other webpage, and the fly rights webpage does state that you may have rights on international flights for delay under the Montreal Convention, that you can ask the airline to do that, and that you may enforce those rights. [00:24:40] Speaker 00: I think they use the phrase in small claims court. [00:24:42] Speaker 03: So the agency's response is look to the airline's webpage. [00:24:50] Speaker 03: In part, yeah. [00:24:52] Speaker 00: In part, to your hypothetical, I apologize, or to their petition for rulemaking. [00:24:59] Speaker 00: So the agency's response to the petition for rulemaking was that it reviewed the contracts of carriage, it reviewed the Montreal Convention requirement in Article 3.4, which in effect is three requirements that be written notice that it may govern and that it may limit liability. [00:25:14] Speaker 00: And that it may govern tells you, and I think you were getting at this with my friend, that you may have some rights there. [00:25:21] Speaker 00: And so the DOT saw that that was existent and continued to be existent in the contracts of carriage of all the airlines they reviewed. [00:25:28] Speaker 00: As Judge Millett discussed with my friend, DOT had an agreement with U.S. [00:25:32] Speaker 00: carriers on language that they've used. [00:25:34] Speaker 03: So I was asking you a hypothetical. [00:25:37] Speaker 03: So your point is go to the web page of the airline and see what it says there about potential liability. [00:25:46] Speaker 00: Well, so you could look at your e-ticket, for example. [00:25:49] Speaker 03: I know, but suppose my e-ticket doesn't tell me that. [00:25:52] Speaker 00: Well, so the e-ticket has to buy regulations. [00:25:55] Speaker 03: It says what the convention requires, that there are limitations. [00:25:59] Speaker 03: What I'm asking for is counsel saying, doesn't tell you enough. [00:26:04] Speaker 03: All right, I thought your response in part was, ah, or his response was, go to the website where the airline has spelled out more. [00:26:15] Speaker 00: The contract of carriage often spells out more and they both point you to the convention zone. [00:26:23] Speaker 01: The DOT, this is not inconsistent, but on page 26 of your brief, the DOT says that their own website instructs anybody who's suffering damages from a delay to file a claim with the airlines and if the airline denies it to go to small claims court and recover. [00:26:42] Speaker 00: Yes, Your Honor, and I think that's what I was trying to describe with... But that's a DOT. [00:26:47] Speaker 01: That's the government's website, not the airline's. [00:26:52] Speaker 00: No, but the Montreal Convention only requires the airlines to provide written notice and written notice of the existence of the convention and that it may govern and that it may limit liability. [00:27:02] Speaker 00: And the airlines are doing that in their contracts of carriage. [00:27:05] Speaker 00: And under 14 CFR 221, which is part of what was being updated in the ongoing rule that's now complete, the airlines have to provide that same notice that the Montreal Convention may govern and where it does it may limit liability. [00:27:20] Speaker 03: But we're dealing with all these people who are concerned that they see that and it doesn't tell them enough. [00:27:28] Speaker 03: So what Judge Randolph is clarifying for me is it's DOT's website that will provide additional information to any international flyer. [00:27:42] Speaker 00: Also the Montreal Convention, right? [00:27:44] Speaker 03: If you haven't... No, no, no. [00:27:45] Speaker 03: I understand that. [00:27:46] Speaker 03: But, you know, I'm not a lawyer. [00:27:48] Speaker 03: I don't have access to conventions. [00:27:50] Speaker 03: I may go to the public library to look at it or I may go and Google something like that. [00:27:54] Speaker 03: But all I'm getting at is if they want further information, I thought your responsive part is [00:28:02] Speaker 03: look to D.O.T.' [00:28:03] Speaker 03: 's website. [00:28:04] Speaker 00: Yes, our fly rights website. [00:28:06] Speaker 00: You can also look at the contract of carriage and you can look at the convention. [00:28:10] Speaker 00: You know, the contract and the notice are all telling you. [00:28:12] Speaker 03: When you talk about the contract of carriage, that's my ticket, right? [00:28:17] Speaker 00: No, Your Honor. [00:28:18] Speaker 00: What is it? [00:28:18] Speaker 03: The contract between the airline and you. [00:28:24] Speaker 03: Well, what is that? [00:28:25] Speaker 03: That's my ticket. [00:28:27] Speaker 00: It's the terms and it has to be provided for on the Airlines webpage in a number of places. [00:28:33] Speaker 03: I've just done some international travel. [00:28:37] Speaker 03: I got a lot of data and I actually read it. [00:28:40] Speaker 03: Not in connection with this case, but just out of curiosity. [00:28:45] Speaker 03: And it does tell you a lot of things. [00:28:47] Speaker 03: But it's mostly about you ought to get insurance, things go wrong. [00:28:54] Speaker 03: So I was just wondering [00:28:56] Speaker 03: If the agency is taking the position, for some reason, that Judge Millett's question seemed to me underscored, that the airlines are doing all they need to do under the Moncadilla Convention, and that to the extent DOT is responding to passenger concerns that that's not enough, it has provided some further information on its website. [00:29:23] Speaker 03: I don't have any claim. [00:29:24] Speaker 03: as a result of my travel. [00:29:26] Speaker 03: Just let me be clear about that. [00:29:28] Speaker 03: But I think that is interesting, because you get a lot of data. [00:29:33] Speaker 03: And that's part of the contract of carriage. [00:29:35] Speaker 03: And that all comes with your ticket. [00:29:39] Speaker 00: Yes. [00:29:40] Speaker 00: I would have a couple points to that. [00:29:42] Speaker 00: Under 14 CFR 221.105, the E ticket, which may be a shorter page, and it will have links to the contract of carriage, must itself state the Montreal Convention notice. [00:29:54] Speaker 00: I think there's a certain point font that has to be stated. [00:29:57] Speaker 00: And so you're getting it there before you even look at the contract of carriage. [00:30:01] Speaker 00: And I would also point you to 14 CFR 259.6 where DOT has promulgated a regulation that allows airlines to use contracts of carriage. [00:30:11] Speaker 00: to create the contract between the flyer and the individual. [00:30:16] Speaker 00: And I'd like to touch on standing, but if I could close one point on the merits. [00:30:20] Speaker 00: My friend, when he first got up here, said that DOT was under an obligation to suss out, or I'm not sure exactly what his phrasing was, but respective deceptive practices. [00:30:29] Speaker 00: The regulation that deceptive practices come under 41.712 says the secretary may if she deems it in the public interest. [00:30:39] Speaker 00: So it's got double discretion. [00:30:40] Speaker 00: DOT had plenty of discretion here, and that's what would distinguish it from the prior Flyers' Rights case where the regulation said DOT shall promulgate minimum safety standards for certain things. [00:30:51] Speaker 03: So no obligation under the statute or the Montreal Convention to do what the petitioner's asking. [00:30:56] Speaker 00: Absolutely, Your Honor. [00:30:59] Speaker 02: Are you done? [00:31:01] Speaker 02: On the explanation for denying the petition included a line, there's insufficient evidence of consumer confusion. [00:31:11] Speaker 02: What is the test for consumer confusion? [00:31:16] Speaker 02: Is it would a reasonable person, would a reasonable airline passenger have been aware of their rights, been able to figure out their rights? [00:31:28] Speaker 00: So I think the test that they were looking at is flyers' rights has presented evidence of some individuals contacting them because they were confused about rights. [00:31:37] Speaker 00: We've looked at what's in the contracts of carriage. [00:31:40] Speaker 00: Are they meeting the Montreal Convention? [00:31:42] Speaker 00: And we've looked at whether the airlines are following the regulations. [00:31:45] Speaker 00: And DOT's position is that they're following the regulations. [00:31:48] Speaker 00: They're following the convention. [00:31:49] Speaker 02: I think you all are sort of talking past each other. [00:31:52] Speaker 02: Right. [00:31:52] Speaker 02: Right? [00:31:53] Speaker 02: Because you all keep saying they're following the convention, they're disclosing the applicability of the convention and the limitations may apply. [00:31:58] Speaker 02: And they keep going, there's another problem here. [00:32:01] Speaker 02: Nobody, even lawyers, knows what their rights are or what they can do. [00:32:09] Speaker 02: And there's no simple place to discover this. [00:32:13] Speaker 02: And your website is not that helpful. [00:32:18] Speaker 02: And so I'm trying to figure out on what basis you decided there was no consumer confusion as to what the petition was seeking. [00:32:26] Speaker 02: passengers' ability to uncover their rights to obtain compensation from airlines in light of delays under certain circumstances. [00:32:36] Speaker 00: So their petition repeatedly frames that in terms of their rights to delay compensation under the Montreal Convention, and we think that providing them with the notice that's required by the convention so that they can go to the convention and look for the primary source of their rights is sufficient to defeat. [00:32:52] Speaker 03: What will that tell me? [00:32:54] Speaker 00: What will the convention tell you? [00:32:55] Speaker 00: It will tell you that you may be entitled to delay. [00:32:58] Speaker 00: I do want to touch. [00:33:00] Speaker 00: Sorry? [00:33:00] Speaker 03: Up to a certain amount. [00:33:02] Speaker 00: up to a certain amount if the flight . [00:33:04] Speaker 00: . [00:33:04] Speaker 00: . [00:33:04] Speaker 00: and I would like to touch standing . [00:33:05] Speaker 03: . [00:33:05] Speaker 03: . [00:33:06] Speaker 03: The airlines have not done everything they could reasonably do to prevent the delay. [00:33:11] Speaker 00: Yes, exactly. [00:33:12] Speaker 00: The airlines must have reasonably . [00:33:13] Speaker 00: . [00:33:13] Speaker 00: . [00:33:13] Speaker 00: they and their employees and their . [00:33:15] Speaker 01: . [00:33:15] Speaker 01: . [00:33:15] Speaker 01: You can sue for more than the Montreal Convention provides if you bring a separate action not based on the Montreal Convention. [00:33:24] Speaker 01: Isn't that correct? [00:33:25] Speaker 00: For international flights, where the Montreal Convention is active, so between two Montreal Convention countries, my understanding is that it would limit the airline flyability, absent some sort of other contractual provision you had. [00:33:40] Speaker 01: Yeah, I don't think that's correct. [00:33:41] Speaker 01: I think that for a wrongful death action, we had a case last month involving the Malaysian airline that crashed in the Indian Ocean. [00:33:52] Speaker 01: and the suit there was for whatever, $100,000 was a limitation in the Montreal Convention, but the suit there was for a greater amount and it required a showing of negligence on the part of the airline or on the pilots or whatever, it was a government-run airline. [00:34:17] Speaker 00: Yeah, I confess, Your Honor, Article 19 of the convention gives you rights for delay, and I believe it's Article 18 or 17, one of the preceding ones. [00:34:24] Speaker 01: Oh, if we're only talking about delay. [00:34:26] Speaker 00: Yeah, I believe one of the preceding articles gives you rights for wrongful death. [00:34:32] Speaker 00: Death, yeah. [00:34:32] Speaker 00: And I confess in preparing for this, I haven't reviewed that. [00:34:35] Speaker 00: It's not an issue. [00:34:37] Speaker 00: And it's not an issue. [00:34:37] Speaker 00: I know I'm over time. [00:34:39] Speaker 03: I would like to touch on- That's all right. [00:34:40] Speaker 03: We've been asking a lot of questions. [00:34:41] Speaker 03: hypothetical questions. [00:34:43] Speaker 00: So is it all right if I bring up a new topic and touch on something? [00:34:45] Speaker 02: What basis is there for someone to understand that they can get money when the convention talks about special drawing rights? [00:34:57] Speaker 02: I had never heard that phrase and if I had read that I wouldn't have known that that means money. [00:35:02] Speaker 02: I mean really I think there's, I wanted to get back to what started this and that is on what possible basis do you think [00:35:10] Speaker 02: People can figure out that they have a right to get money damages just for delay if the airline hasn't done everything possible to avoid it. [00:35:24] Speaker 00: So again, I would start with DOT has the discretion if it determines that there's been a deceptive practice. [00:35:31] Speaker 02: I'm not talking about deceptive. [00:35:32] Speaker 02: I'm just talking about the line in the denial that said, we don't think there's sufficient evidence of consumer confusion. [00:35:38] Speaker 02: Is there any evidence that consumers know [00:35:41] Speaker 02: What they can do. [00:35:43] Speaker 00: The evidence that's presented is there are seven emails of consumers contacting them because they are confused. [00:35:49] Speaker 03: And news articles and an article. [00:35:52] Speaker 00: Yes. [00:35:53] Speaker 03: It went beyond the seven emails. [00:35:59] Speaker 03: I thought, what were you requiring? [00:36:01] Speaker 03: Statistical evidence, expert testimony? [00:36:05] Speaker 00: Again, we think that... What did you mean by that line? [00:36:09] Speaker 02: There's insufficient evidence. [00:36:10] Speaker 02: Did you just mean they didn't come forward with sufficient evidence that, although they referenced, I think, news articles. [00:36:18] Speaker 02: I took it as sort of a, we just don't think there's a problem out there, which is commonly what happens when agencies deny petitions, and I couldn't figure out on what possible basis that would happen. [00:36:32] Speaker 00: So the first part of that is that there was insufficient evidence that they're failing to comply with the monetary alchemy. [00:36:36] Speaker 00: I think I now, I may have been missing your question before, and I was answering that, and there is sufficient evidence for that. [00:36:42] Speaker 00: And you're asking about the after the or, or otherwise attempting to conceal information regarding delay. [00:36:49] Speaker 02: No, the last line. [00:36:50] Speaker 02: Furthermore, there is, furthermore, so this is a separate point, there is insufficient evidence of consumer confusion that would warrant we'll make it on this issue. [00:36:57] Speaker 02: That's the line I'm asking about. [00:36:59] Speaker 00: That is to say that the secretary did not believe that the evidence we've been presented regarding consumer confusion warrants the secretary exercising her twice over discretion that she may engage in rulemaking if she also determines in the public interest that there is a deceptive practice. [00:37:15] Speaker 02: She doesn't say it would be against the public interest or anything like that. [00:37:18] Speaker 02: She says there's not sufficient evidence of consumer confusion, which I mean is we don't think there's a problem. [00:37:24] Speaker 00: It means of consumer confusion. [00:37:27] Speaker 00: Warrant and rulemaking on this issue. [00:37:29] Speaker 00: So the secretary's been presented with the evidence that Flyers Right has about consumer confusion. [00:37:33] Speaker 02: I'm just asking how they came to that conclusion. [00:37:34] Speaker 02: What was the test? [00:37:35] Speaker 02: That we think, because nobody's arguing here that the contracts of carriage, the signs at the airport, [00:37:44] Speaker 02: are disclosing the affirmative rights. [00:37:46] Speaker 02: No one's referencing Article 19. [00:37:48] Speaker 02: Now I get the convention doesn't require it. [00:37:50] Speaker 02: I'm not asking about that. [00:37:51] Speaker 02: This is a separate argument about there's a problem. [00:37:54] Speaker 02: DOT, we got a problem out in the real world. [00:37:58] Speaker 02: People haven't got a clue. [00:38:00] Speaker 02: Don't ask them to read the Montreal Convention because nobody knows what a special drawing right is. [00:38:04] Speaker 02: Okay, and there's just a little line there and then a whole bunch of stuff about more limitations of liability. [00:38:09] Speaker 02: There's newspaper articles, they didn't say that the emails were the universe of confused people, they were illustrative of confused people. [00:38:19] Speaker 02: I'm just trying to figure out, and your own website is just sort of a one liner, ask the airline and then go to court. [00:38:26] Speaker 02: It's not particularly helpful. [00:38:28] Speaker 00: Your Honor, I don't think that the statute, or I guess I should start with the statute, requires DOT to engage in rulemaking. [00:38:36] Speaker 00: They're asking for voluntary rulemaking. [00:38:38] Speaker 00: I'm not arguing that. [00:38:38] Speaker 02: I'm just trying to understand how this decision, how this line was reasoned through by the agency. [00:38:45] Speaker 02: How they came to that conclusion. [00:38:47] Speaker 00: They looked at the evidence provided by Flyers' rights. [00:38:50] Speaker 03: In other words, do they think there were only seven emails, and they only covered, suppose [00:38:55] Speaker 03: Each email involved a family, so it's maybe four people. [00:38:59] Speaker 03: So we're only talking about 28 consumers. [00:39:02] Speaker 03: And the secretary said, I'm not going to spend all the time and energy on a rulemaking when all we have is 28 people who don't know what to do. [00:39:11] Speaker 03: There are thousands of people who are just happy and not complaining. [00:39:17] Speaker 03: Is that what she meant? [00:39:19] Speaker 03: Or did she mean, I'm taking this up in this other rulemaking? [00:39:24] Speaker 00: Well, we do address . [00:39:25] Speaker 00: . [00:39:26] Speaker 00: . [00:39:26] Speaker 03: There's not sufficient evidence for me to do it here. [00:39:28] Speaker 00: Yes, there's not sufficient evidence for me to do it here. [00:39:31] Speaker 00: It is on the next page, I think it's 544 of the JA, where we address that we're currently engaged in rulemaking related to both delay for passengers and delay for baggage. [00:39:41] Speaker 00: We were engaged in that. [00:39:41] Speaker 02: I'm just asking about the conclusion. [00:39:43] Speaker 02: That seemed to be an answer. [00:39:45] Speaker 02: There is a problem we're going to address. [00:39:46] Speaker 02: We're going to look into whether there's a problem there, which is [00:39:49] Speaker 02: Here, there's no consumer confusion that warrants rulemaking on this issue. [00:39:56] Speaker 00: Insufficient evidence to warrant on this issue. [00:39:59] Speaker 00: There was also at the rulemaking stage two filings by Airlines for America describing what their clients do. [00:40:06] Speaker 03: I guess what we're trying to understand is did the secretary say, no, I want more consumer [00:40:11] Speaker 03: evidence of more consumer confusion, I want statistics, I want expert testimony, I want to study and report. [00:40:21] Speaker 00: I think the best way I can frame it is the Secretary said looking at the evidence on the record, I don't believe, and both Airlines for America and Flyers rights filings and everything else that we've discussed that was looked at, I don't believe it's enough for me to engage in this discretionary rulemaking. [00:40:37] Speaker 00: If that makes sense. [00:40:48] Speaker 00: My friend said a couple of interesting things during his argument. [00:40:51] Speaker 00: One, in response to a question I believe from Judge Randolph, he said to join you needed to sign up to receive their info. [00:40:58] Speaker 00: That looks a lot like Getman versus DEA, where this court said High Times Magazine, which you needed to sign up by paying for a subscription. [00:41:06] Speaker 00: was not sufficient to create standing. [00:41:10] Speaker 00: The court has also noted that belonging to a Facebook page and following and passively subscribing to an email list is not sufficient in Sorenson Communications versus FCC. [00:41:21] Speaker 02: And so if signing up for their organization design an association that says we are here to promote the rights of homeless people. [00:41:32] Speaker 02: And we reach out to homeless people who provide services to them. [00:41:36] Speaker 02: We talk with them about what they want. [00:41:39] Speaker 02: They don't pay dues because they're homeless. [00:41:42] Speaker 02: How would they establish membership? [00:41:46] Speaker 02: Or can there just be no associational standing for homeless people? [00:41:50] Speaker 00: No, Your Honor, I think you would need a couple of things. [00:41:53] Speaker 00: The indicia that you were talking about with my friend, that some of the people with the indicia of membership are, or those individuals with the indicia are sort of driving the policies. [00:42:02] Speaker 02: That they're engaged in selecting governance for homeless individuals who may have a variety of mental health or substance abuse or they are just, they have neither of those issues and it's all they can do each day to struggle [00:42:16] Speaker 02: to get by. [00:42:17] Speaker 02: They don't have time to be picking CEOs, but they are all in care about homelessness issues. [00:42:27] Speaker 02: They talk, there's meetings, they have a forum for getting together and figuring out what do we want to tackle now. [00:42:35] Speaker 02: That wouldn't be enough. [00:42:36] Speaker 00: Your honor the form and the talking about what we want to tackle now if the organization's responding to those needs that might be enough that's exactly what they have here they say we pull our folks and that's what drives. [00:42:47] Speaker 02: We we pull our folks and that's what drives our decisions presumably it was pulling information from folks here that said let's complain about. [00:42:54] Speaker 02: delay issues. [00:42:55] Speaker 00: So they haven't really described who they've polled. [00:42:58] Speaker 02: Again, they've told us at the... So they polled the people who are their members, members slash supporters. [00:43:03] Speaker 00: The people who've signed up for an email list. [00:43:05] Speaker 00: The court has said that signing up for a passive, I think was the phrase used in Sorenson, a passive email list is not... Yes, because they had any ability to decide anything. [00:43:15] Speaker 02: There was no argument there that they were dictating the agenda. [00:43:18] Speaker 02: The agenda there was the Sorenson Communications was driving that agenda. [00:43:21] Speaker 00: Yes. [00:43:22] Speaker 03: Some homeless people, back to Judge Militz, a hypothetical, an NGO with the three elements, either that could be an actual association or [00:43:41] Speaker 03: for some reason, a functional equivalent. [00:43:43] Speaker 03: What I couldn't find is a case that allows you to avoid one of those three elements. [00:43:48] Speaker 03: That's all I'm getting at. [00:43:52] Speaker 00: Sorry. [00:43:53] Speaker 00: Yes, your honor. [00:43:54] Speaker 00: And if I could sort of narrow this as to their two sets of- Well, do you think they don't meet any of the elements? [00:43:58] Speaker 02: I mean, they say that their primary funding comes from their members, their supporters. [00:44:04] Speaker 02: I don't know, they have to use the magic word members. [00:44:07] Speaker 02: It comes from their folks, their people. [00:44:10] Speaker 02: The ones who are funding them and the ones who are saying, what problems are you encountering? [00:44:16] Speaker 02: Let us know that you want us to address. [00:44:20] Speaker 03: I think our cases are close to requiring magic words, but I will debate that here. [00:44:26] Speaker 00: Understood. [00:44:27] Speaker 00: I think I would step back and say first the associational standing test for traditional association would be that you have a you have a member who could sue in their own right, and that you represent their interests and that it's germane to your cause, and they aren't necessary here. [00:44:42] Speaker 00: If you're going to go for the indicia of membership. [00:44:45] Speaker 00: for that first prong where you show an individual member, or in this case, a person with the indicia of membership, who could sue in their own right. [00:44:52] Speaker 00: Part of the problem here is that the initial affidavits from Mr. DeBeer and Mr. Lacks failed to show that Mr. DeBeer and Mr. Lacks had the indicia of membership. [00:45:00] Speaker 00: We raised that issue. [00:45:01] Speaker 00: They came back with an affidavit from their president that says nothing about Mr. DeBeer or Mr. Lacks. [00:45:06] Speaker 00: And so they haven't identified an individual with the indicia of membership who has standing. [00:45:11] Speaker 00: And this is what would distinguish the prior Flyers rights case [00:45:14] Speaker 00: And to some extent, the other pending case is that in both of those, they've sought to assert standing on behalf of Mr. Hudson, who's their president, and who is also a petitioner. [00:45:23] Speaker 00: And so in the prior case, you didn't have to address flyers. [00:45:25] Speaker 02: I know the case was different. [00:45:26] Speaker 02: I get back to this was different. [00:45:28] Speaker 02: Yeah. [00:45:29] Speaker 02: And do you dispute whether, if he were a member, Mr. DeBeer would have standing? [00:45:39] Speaker 00: We didn't dispute that in the brief. [00:45:42] Speaker 02: He never says he's going to fly. [00:45:44] Speaker 02: again internationally. [00:45:45] Speaker 02: Do you have to do that for petition for rulemaking or not? [00:45:48] Speaker 00: I don't know the answer to that at the podium. [00:45:50] Speaker 02: He's presumably now been informed what his rights are. [00:45:54] Speaker 02: If he's not going to fly again internationally, I'm just trying to figure out, but maybe petitions for rulemaking can be based on entirely retrospective experience? [00:46:02] Speaker 02: Usually under the AP that's not enough. [00:46:04] Speaker 00: You're right, and I think I couldn't name a case for you, and I hesitate to sort of speculate. [00:46:10] Speaker 00: It's not something I've thought about. [00:46:11] Speaker 00: I'm sorry, Your Honor. [00:46:13] Speaker 03: Well, I mean, everybody talks about, they concede they're not a conventional association. [00:46:19] Speaker 03: And I was trying to understand what they meant by that. [00:46:24] Speaker 03: And the only thing I could look to was the two cases that they cited. [00:46:30] Speaker 03: And I asked my law clerk to look for some more. [00:46:34] Speaker 03: But we've got these three elements. [00:46:38] Speaker 03: And either you meet them or you don't. [00:46:40] Speaker 00: I would agree, Your Honor, and I would point out the case that they really rely on AARP. [00:46:47] Speaker 00: There's an easy way to tell whether you associate and an easy way to tell when you stopped associating with AARP. [00:46:52] Speaker 00: That's to say you stopped paying dues, you stopped participating. [00:46:56] Speaker 00: Here, he told us at the podium that anyone that signs up for an email, we don't know if anyone who calls the hotline is also a member. [00:47:02] Speaker 00: We don't know how one disassociates from their organization. [00:47:06] Speaker 00: But I'm well over time and so unless the court has other questions, we would ask you to dismiss the petition for lack of standing or if you reach the merits to deny. [00:47:14] Speaker 00: Thank you. [00:47:20] Speaker 05: Thank you. [00:47:20] Speaker 05: Thank you. [00:47:20] Speaker 05: Just briefly, the seven emails were just examples. [00:47:25] Speaker 05: The department in its decision said, the basis for its decision was a review of the contracts of carriage of U.S. [00:47:32] Speaker 05: carriers revealed there was adequate notice regarding the availability of compensation. [00:47:38] Speaker 05: Our point was that the contracts of carriage on their face show that's not true. [00:47:42] Speaker 05: They're affirmatively deceptive and misleading. [00:47:46] Speaker 05: And with respect to the notice that the DOT points to that's now required on [00:47:53] Speaker 05: e-tickets and at the ticket counter, it says, passengers embarking upon a journey involving an ultimate destination or stop in a country other than a country of departure are advised that the provisions of an international treaty as well as a carrier's own contract of carriage may be applicable to their entire journey. [00:48:13] Speaker 05: The applicable treaty governs and may limit the liability of carriers to passengers for death or personal injury [00:48:19] Speaker 05: entry delay of passengers or baggage. [00:48:21] Speaker 05: What in the world in that language tells anybody, doesn't even identify what treaty, if you wanted to look it up online, that you have rights for the compensation for delay of what the [00:48:31] Speaker 05: nature of those rights would be. [00:48:34] Speaker 05: And the basis, there's no question that it's discretionary. [00:48:39] Speaker 05: And the base of the statutory basis was not what my colleague said. [00:48:46] Speaker 05: It's section 49 U.S.C. [00:48:49] Speaker 05: 401-01 that says in carrying out economic regulation, the Department of Transportation shall consider a number of factors preventing unfair [00:48:59] Speaker 05: deceptive, predatory, or any competitive practices. [00:49:02] Speaker 05: No question that's discretion. [00:49:04] Speaker 05: There's no obligation. [00:49:05] Speaker 05: But the discretion has to be exercised in a reasoned manner that's supported by the evidence they cite in the record. [00:49:12] Speaker 05: And that wasn't the case here. [00:49:14] Speaker 05: That reason is that it would be reversed. [00:49:15] Speaker 03: Thank you. [00:49:16] Speaker 03: We'll take the case under advisement.