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Supreme Court of the United States ———— ALL NIPPON AIRWAYS CO., LTD., EVA AIRWAYS CORP., Petitioners, V

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Supreme Court of the United States ———— ALL NIPPON AIRWAYS CO., LTD., EVA AIRWAYS CORP., Petitioners, V No. 17-659 IN THE Supreme Court of the United States ———— ALL NIPPON AIRWAYS CO., LTD., EVA AIRWAYS CORP., Petitioners, v. DONALD WORTMAN, et al., Respondents. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ———— BRIEF FOR INTERNATIONAL AIR TRANSPORT ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF PETITIONERS ———— JEFFREY N. SHANE WARREN L. DEAN, JR. General Counsel Counsel of Record INTERNATIONAL AIR KATHLEEN E. KRAFT TRANSPORT ASSOCIATION THOMPSON COBURN LLP Route de l’Aeroport 33 1909 K Street, N.W. P.O. Box 416 Washington, D.C. 20006 1215 Geneva Airport 15 (202) 585-6900 Switzerland [email protected] +41 (0) 22 770 29 01 [email protected] Counsel for Amicus Curiae December 13, 2017 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................ iii INTEREST OF AMICUS CURIAE ..................... 1 SUMMARY OF ARGUMENT ............................. 2 ARGUMENT ........................................................ 5 I. THE NINTH CIRCUIT’S DECISION IGNORES THE REGULATORY FRAME- WORK FOR INTERNATIONAL AIR SERVICES AND CONFLICTS BOTH WITH THE DOT’S ENABLING LEG- ISLATION AND WITH INTERNA- TIONAL AGREEMENTS TO WHICH THE UNITED STATES IS A PARTY ...... 5 A. The International Air Transportation System .................................................. 7 B. The International Framework For Regulating Pricing ............................... 9 II. THE NINTH CIRCUIT’S DECISION IMPERMISSIBLY USURPS THE DOT’S EXCLUSIVE RESPONSIBILITY TO EXERCISE ON BEHALF OF THE UNITED STATES THE AUTHORITY TO REGULATE INTERNATIONAL AIR SERVICES ................................................ 15 A. Congress Vested The DOT With Authority Over Interstate And Foreign Air Transportation ................. 15 B. The Ninth Circuit’s Decision Would Usurp The Regulatory Authority Of The DOT Over Foreign Air Transportation ..................................... 16 (i) ii TABLE OF CONTENTS—Continued Page III. THE NINTH CIRCUIT’S DECISION UNCONSTITUTIONALLY INTRUDES UPON THE AUTHORITY OF THE EXECUTIVE BRANCH OVER FOR- EIGN AIR TRANSPORTATION AND IMPAIRS THE ABILITY OF THE EXECUTIVE TO CONDUCT THE FOREIGN AFFAIRS OF THE UNITED STATES ..................................................... 17 CONCLUSION .................................................... 19 iii TABLE OF AUTHORITIES CASES Page(s) Ark. La. Gas Co. v. Hall, 453 U.S. 571 (1981) ................................... 13 AT & T v. Cent. Office Tel., Inc., 524 U.S. 214 (1998) ................................... 13 Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948) ................................... 18 Dames & Moore v. Regan, 453 U.S. 654 (1981) ................................... 3 E. & J. Gallo Winery v. EnCana Corp., 503 F.3d 1027 (9th Cir. 2007) ................... 6 Ginsberg v. Northwest, Inc., 695 F.3d 873 (9th Cir. 2012), rev’d, 134 S. Ct. 1422 (2014) ............................... 6 Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C. Cir. 1980) ................... 8 In re N.J. Title Ins. Litig., 683 F.3d 451 (3d Cir. 2012) ...................... 13 In re Transpacific Passenger Air Transp. Antitrust Litig., 69 F. Supp. 3d 940 (N.D. Cal. 2014) ......... 7 Keogh v. Chi. & Nw. Ry. Co., 260 U.S. 156 (1922) ................................... 13 Mont.–Dakota Util. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246 (1951) ................................... 13 Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014) ............................... 6-7 iv TABLE OF AUTHORITIES—Continued Page(s) Regan v. Wald, 468 U.S. 222 (1984) ................................... 18 Saunders v. Farmers Ins. Exch., 440 F.3d 940 (8th Cir. 2006) ..................... 13 Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409 (1986) ................................... 13 Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918 (9th Cir. 2002) .................... 7 Wortman v. All Nippon Airways, 854 F.3d 606 (9th Cir. 2017) ............... 13, 16, 18 STATUTES AND REGULATIONS 49 U.S.C. § 40101 ......................................... 15 49 U.S.C. § 40101(a)(12) ............................... 5, 9 49 U.S.C. § 40101(e) ..................................... 3, 6 49 U.S.C. § 40101(e)(2) ................................. 16 49 U.S.C. § 40105 ......................................... 3, 15 49 U.S.C. § 40105(a) ..................................... 3 49 U.S.C. § 40105(b)(1)(A) ............................ 12 49 U.S.C. § 40105(e)(2) ................................. 6 49 U.S.C. § 40109(c) ..................................... 15 49 U.S.C. § 41507 ......................................... 16 49 U.S.C. § 41509 ......................................... 16 v TABLE OF AUTHORITIES—Continued Page(s) 49 U.S.C. § 41712(a) ..................................... 9 49 U.S.C. § 41713(b) ..................................... 5 Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705 ......................... 3, 5 International Air Transportation Competi- tion Act of 1979, Pub. L. No. 96-192, 94 Stat. 35 (1980) ..................................... 3, 5, 6, 16 14 C.F.R. Part 213 ........................................ 9 TREATIES AND INTERNATIONAL AGREEMENTS Air Services Agreement, U.S.-U.K., Feb. 11, 1946, 60 Stat. 1499 ................................... 8 Air Transport Agreement, Memorandum of Understanding, U.S.-Japan, Dec. 14, 2009, https://www.state.gov/e/eb/rls/othr/ ata/j/ja/133510.htm ...................................passim Air Transport Agreement, U.S.-S. Kor., June 9, 1998, https://www.state.gov/e/eb/ rls/othr/ata/k/ks/114172.htm .................... 12 Civil Air Transport Agreement, U.S.- Japan, Aug. 11, 1952, 4 U.S.T. 1948 .......passim Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295 ............................................................. 6, 7, 8 vi TABLE OF AUTHORITIES—Continued OTHER AUTHORITIES Page(s) Barry R. Diamond, The Bermuda Agreement Revisited: A Look at the Past, Present and Future of Bilateral Air Transport Agreements, 41 J. Air L. & Com. 419 (1975) ........................................ 8 BETSY GIDWITZ, POLITICS OF INTERNA- TIONAL AIR TRANSPORT (1981) .................. 8 Charles A. Hunnicutt, U.S.-EU Second Stage Air Transport Agreement: Toward an Open Aviation Area, 39 Ga. J. Int’l. & Comp. L. 663 (2011) .................................. 8 Joshua D. Lichtman & Carlos R. Rainer, The Filed Rate Doctrine as Applied to Alleged Manipulation in the Wholesale Natural Gas Market: A Defense Perspec- tive, The Antitrust Source (Sept. 2005), http://www.americanbar.org/content/dam/ aba/pubishing/antitrust_source/Sep05_L ichtman9_27.pdf ....................................... 13-14 U.S. Dep’t of State, Current Model Open Skies Agreement Text (Jan. 12, 2012), https://www.state.gov/e/eb/rls/othr/ata/1 14866.htm ................................................. 9 U.S. Dep’t of State, Open Skies Partners (July 14, 2017), https://www.state.gov/e/ eb/rls/othr/ata/267129.htm ....................... 10 U.S. Dep’t of State, Open Skies Partner- ships: Expanding the Benefits of Freer Commercial Aviation (July 5, 2017), https://www.state.gov/e/eb/rls/fs/2017/267 131.htm ..................................................... 9 vii TABLE OF AUTHORITIES—Continued Page(s) Defining “Open Skies”, Order No. 92-8-13, 1992 WL 204010 (U.S. Dep’t of Transp. Aug. 5, 1992) ............................................. 9 INTEREST OF AMICUS CURIAE1 The International Air Transport Association (IATA) is a nongovernmental international trade association founded in 1945 by air carriers engaged in interna- tional air services. Today, IATA consists of 282 member airlines from 123 countries representing roughly 84 percent of the world’s total air traffic. IATA strives to represent, lead, and serve the airline industry by advocating the interests of airlines across the globe, developing global commercial standards for the airline industry, and assisting airlines in operating safely, securely, efficiently, and economically. Since 1945, IATA has worked closely with governments and inter- governmental organizations to achieve and maintain a legal and regulatory framework everywhere con- sistent with the best interests of air transportation users. In this connection, IATA advocates uniformity in the development, implementation, and interpreta- tion of numerous public and private international treaties and agreements relating to the conduct of international air services. The Ninth Circuit’s decision threatens to disrupt and compromise the integrity of the oversight and regulation of international air transportation services. If allowed to stand, the Ninth Circuit’s decision will frustrate the realization of the objectives of IATA’s 1 No counsel for a party authored this brief in whole or in part, and no party or counsel for a party or any other person other than IATA or its counsel made a monetary contribution intended to fund the preparation or submission of this brief. On December 1, 2017, counsel for IATA timely notified counsel of record for Petitioners and Respondents of IATA’s intention to file this brief. IATA’s counsel received written consent from counsel for Petitioners on December 4, 2017 and from counsel for Respondents on December 6, 2017. 2 member airlines in ensuring the uniform observance of the international obligations governing those services. The United States would be uniquely disadvantaged if the decision is not
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