United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2005 Decided July 8, 2005
No. 04-1030
AEROLINEAS ARGENTINAS S.A.,
PETITIONER
v.
U.S. DEPARTMENT OF TRANSPORTATION,
RESPONDENT
AMERICAN AIRLINES, INC., ET AL.,
INTERVENORS
On Petition for Review of an Order of the
United States Department of Transportation
John N. Romans argued the cause for petitioner. With him
on the briefs were Alexander C. Vincent and Thomas G.
Corcoran, Jr.
Dale C. Andrews, Deputy Assistant General Counsel, U.S.
Department of Transportation, argued the cause for respondent.
With him on the brief were Robert H. Pate, III, Assistant
Attorney General, U.S. Department of Justice, Robert B.
Nicholson and Steven J. Mint z, Attorneys, Jeffrey A. Rosen,
General Counsel, U.S. Department of Transportation, Paul M.
Geier, Assistant General Counsel, and Thomas L. Ray.
2
Carl B. Nelson, Jr., David E. Short, and Jeffrey A. Manley
were on the brief for intervenor.
Before: GINSBURG , Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Aerolineas Argentinas petitions
for review of an order of the Department of Transportation
(DoT) conditioning the airline’s permit to provide air
transportation to and from the United States upon its paying into
escrow “the difference between what it actually pays [in user
charges] at Buenos Aires Ezeiza airport and the higher amounts”
that United States carriers are required to pay at that airport.
Aerolineas acknowledges that it is paying user charges for
international flights that are roughly one third of what United
States carriers are being charged, but it argues that because the
disparity stems not from any intentional discrimination on the
part of the Government of Argentina, but rather from
“conflicting [Argentine] judicial decisions,” the DoT abused its
discretion by treating the discrepancy as an “unreasonable
discriminatory ... practice against” the United States carriers
within the condemnation of the International Air Transportation
Fair Competitive Practices Act, 49 U.S.C. § 41310(c)(1)(A). In
any event, argues Aerolineas, because neither the Argentine
Congress nor the Executive can control the decisions of the
Argentine Judiciary, the DoT’s countermeasure will not
eliminate the difference and was therefore arbitrary and
capricious in violation of the Administrative Procedure Act, 5
U.S.C. § 706(2).
For its part, the DoT argues first that 49 U.S.C. § 46110
deprives the court of jurisdiction to review the challenged order
because it comes within the exception to reviewability for orders
3
“relat[ing] to a foreign air carrier [and] subject to disapproval by
the President.” On the merits, the DoT argues the order was
within its authority under § 41310 and easily withstands the
deferential review called for under the APA.
Because the DoT’s order is no longer subject to the
President’s disapproval, we hold the court has jurisdiction to
entertain Aerolineas’ petition, which we deny on its merits.
I. Background
In early 2002 the Government of Argentina delinked its
peso from the U.S. dollar, whereupon the value of the peso
quickly fell to about 33 U.S. cents. In an attempt to mitigate the
ensuing panic, the Argentine Congress passed a law requiring
that public service tariffs, including airport user fees, which
were formerly denominated in dollars, be paid in pesos as
though each peso were still worth $1.00, that is, at a one-to-one
rate. The Argentine Executive, however, issued a Decree
purporting to supersede that law and requiring that airport user
charges for international flights -- for landing, parking, and air
traffic control -- at Buenos Aires International Airport
(Aeropuerto Internacional Ministro Pistarini de Ezeiza, or
Ezeiza) be paid in dollars at the floating exchange rate of
roughly three-to-one.
Several airlines challenged the constitutionality of the
Decree in the Argentine courts, and it is the divergent results of
those actions that gave rise to this case. First, Aerolineas
obtained a preliminary injunction against enforcement of the
Decree, thereby allowing it to pay the airport charges at the one-
to-one rate. Then carriers from the United States and other
foreign countries sought, but were denied, the same relief in a
different Argentine court. As a result, since September 2002
Aerolineas has been paying user charges at Ezeiza that are
4
roughly one third of what the United States carriers must pay for
the same services.
Four United States carriers filed complaints with the DoT
pursuant to 49 U.S.C. § 41310(d)(1).* The discrepancy in
charges, they argued, put the Government of Argentina in
violation of its bilateral agreement with the United States that
“[a]irlines shall not be required to pay charges higher than those
paid by the airlines of the [other] party,” Air Transport Services
Agreement Between the Governments of the United States of
America and the Republic of Argentina, Oct. 22, 1985, T.I.A.S.
No. 11262, and therefore constituted an “unreasonable
discriminatory ... practice against” the United States carriers, 49
U.S.C. § 41310(c)(1)(A). The DoT agreed, concluding “the
imposition of higher fees at Ezeiza airport on U.S. carriers than
those paid by Aerolineas Argentinas constitutes, on its face, the
type of activity that 49 U.S.C. § 41310 was intended to reach.”
After diplomatic efforts to avoid a confrontation failed, the DoT
imposed a countermeasure: Aerolineas’ permit to operate in the
United States was conditioned upon the airline’s depositing in
an escrow account in the United States the difference, for each
of its international flights landing at Ezeiza, between the user fee
it pays and the fee that United States carriers pay there.
Shortly thereafter Aerolineas moved the DoT to stay its
order because an appellate court in Argentina had modified the
preliminary injunction granted in its favor and required the
carrier to pay the same difference (that is, two pesos on the
*
49 U.S.C. § 41310(d)(1) provides: “An air carrier ...
may file a complaint under [§ 41310(c)],” which authorizes the
DoT to “take actions ... in the public interest to eliminate an
activity of a government of a foreign country” that is “an
unjustifiable or unreasonable discriminatory, predatory, or
anticompetitive practice against an air carrier.”
5
dollar) into an escrow account in Argentina pending final
resolution on the merits of its constitutional challenge to the
Decree. The DoT refused to stay its order because Aerolineas
had appealed the modification to the Supreme Court of
Argentina and, in the meantime, was not making escrow
payments in Argentina. Aerolineas then petitioned this court for
review of the DoT’s order.
II. Analysis
Aerolineas argues first that conflicting decisions by the
courts of Argentina do not amount to a “discriminatory,
predatory, or anticompetitive practice” by the Government of
Argentina against the United States carriers within the meaning
of 49 U.S.C. § 41310(c)(1)(A) and, in any event, the DoT’s
countermeasure should be set aside as arbitrary and capricious,
5 U.S.C. § 706(2), because in Argentina, as here, neither the
Congress nor the Executive can dictate the decisions of the
Judiciary. Before turning to those contentions, however, we
must address the DoT’s objection that we are without
jurisdiction to review the order.
A. Jurisdiction
Under 49 U.S.C. § 41307, the Secretary of Transportation
was required to submit his order to the President for review as
a “decision [to] ... amend ... a permit ... authorizing a foreign air
carrier ... to provide foreign air transportation.” Under that
section:
The President may disapprove the decision of the Secretary
only if the reason for disapproval is based on foreign
relations or national defense considerations that are under
the jurisdiction of the President. The President may not
disapprove ... if the reason is economic .... A decision of the
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Secretary --
...
(2)(A) takes effect as a decision of the Secretary if the
President does not disapprove the decision not later
than 60 days after the decision is submitted to the
President; and (B) when effective, may be reviewed
judicially under section 46110 ....
Section 46110 makes reviewable in this court any order of the
Department of Transportation “[e]xcept for an order related to
a foreign air carrier subject to disapproval by the President under
section 41307.”
The DoT argues its order to Aerolineas comes within the
exception in § 46110 and is therefore unreviewable. Aerolineas
responds as follows: (1) The DoT’s decision was “economic,”
and because “the President may not disapprove ‘economic’
decisions” the order was not “subject to disapproval by the
President”; and (2) even if the order was initially subject to
disapproval by the President, because he did not disapprove it
within the 60 days provided therefor, and the order has since
“take[n] effect as a decision of the Secretary” that is no longer
subject to presidential disapproval, it is now subject to judicial
review.
Aerolineas’ first “argument” is really a conclusion, for
which it offers no support whatsoever. We reject it in kind.
Aerolineas’ second argument gains traction from South
African Airways v. Dole, 817 F.2d 119, 123 (D.C. Cir. 1987), in
which we considered the predecessor to § 46110, and concluded
that “if a DOT action is not disapproved [by the President, then]
it ‘shall take effect as [an] action of [the DoT], not of the
7
President, and as such shall be subject to judicial review as
provided in section 1486 of this Appendix.’ 49 U.S.C. app. §
1461(a) (1982).”
The DoT points out that § 1486 differed from the current §
46110 in that it excepted from judicial review any order relating
to a foreign air carrier “subject to the approval” -- not the
“disapproval” -- of the President; the order at issue in that case
was by statute made subject only to the disapproval of the
President, and we therefore concluded it was not within the
exception to judicial review. 817 F.2d at 122. Because the
order under review in this case was subject to the “disapproval”
of the President, pursuant to the exception in § 46110, the DoT
argues the result in this case should be different. The DoT fails
to appreciate, however, that in the prior case we went on to
explain that “even if we were to equate ‘subject to approval’
with ‘subject to disapproval,’” -- that is, even if the exception to
reviewability in § 1486 were the same as the exception in §
46110 -- “the order would still be reviewable.” Id. That leaves
the DoT with no basis upon which to distinguish South African
Airways.
We now make explicit what was necessarily implicit in
South African Airways, namely, that § 46110 does not
permanently preclude judicial review of an order “relat[ing] to
a foreign air carrier” merely because the order was initially
“subject to disapproval by the President.” When an order is no
longer “subject to disapproval by the President,” there is no
longer any reason to shield it from judicial scrutiny, or so the
Congress apparently concluded. Here, the order was submitted
for the President’s review on November 19, 2003, and on
November 25 the President’s designee* notified the DoT that he
*
By Executive Order 12597 the President delegated this
authority to the Secretary, who in turn delegated it to the
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did not intend to disapprove it. Even absent such notification,
“60 days after the decision is submitted to the President” or his
designee, if not disapproved the order “takes effect as a decision
of the Secretary” and, “when effective, may be reviewed
judicially under section 46110.” 49 U.S.C. § 41307(2)(A)&(B).
If the Congress had intended permanently to shield from
judicial review all orders initially “subject to disapproval by the
President,” then it would have said so. The more natural
meaning of the phrase “subject to disapproval” is as a temporal
limitation; a court may not review an order “relating to a foreign
air carrier” as long as that order is “subject to disapproval by the
President.” The lack of presidential disapproval, however,
indicates only that the order is not harmful to the foreign
relations or defense of the Nation. We should not lightly
presume the Congress intended to grant the DoT an
unreviewable discretion to engage in otherwise noxious
decisionmaking. See Steenholdt v. FAA, 314 F.3d 633, 638
(D.C. Cir. 2003) (noting the “strong presumption of
reviewability under the [APA]”). Accordingly, as we held in
South African Airways, “if a DOT action is not disapproved, it
... shall be subject to judicial review” pursuant to the APA. 817
F.2d at 123.*
General Counsel of the DoT. 49 C.F.R. § 1.57(p).
*
We recognize this interpretation of § 46110 leaves the
exception to judicial review with only limited practical effect;
despite the court’s best efforts, judicial review could hardly be
had in less than 60 days, nor would we ordinarily review an
order before it “takes effect.” 49 U.S.C. § 41307. It is the
cumulative effect of several Acts of Congress, however, and not
our decision today, that accounts for the limited sweep of the
exception. The original version of the exception in what is now
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B. The Merits
Aerolineas argues “the plain language of § 41310 requires
discriminatory intent,” whereas “the current different rates being
paid by different carriers is strictly ... fortuitous.” The DoT
takes issue with the carrier’s premise, arguing “it is irrelevant
whether the foreign government’s discriminatory activity was
intentional.”
No action taken by any branch of the Government of
Argentina appears to have been aimed at disadvantaging United
§ 46110 was crafted prior to the Congress’s having regularized
judicial review of administrative action in the APA, see Pub. L.
No. 75-706, June 23, 1938, 52 Stat. 1024 (“except any order in
respect of any foreign air carrier subject to the approval of the
President”). Meanwhile, § 41307 has been changed
significantly over time: An order “amend[ing] ... any permit
issuable to any foreign air carrier” was originally made “subject
to the approval of the President” without any limitation either of
time or of the ground upon which he might reject it. 52 Stat.
1014. Although all such orders had to be “submitted to the
President before publication,” id., another section provided that
“all orders ... of the [then-Civil Aeronautics] Authority shall take
effect within such reasonable time as the Authority may
prescribe,” 52 Stat. 1023. Thus, it was apparently possible for
an order to take effect while it was still subject to the President’s
“approval ... denial, transfer, amendment, cancellation or
suspension,” Chicago & So. Air Lines v. Waterman S.S. Corp.,
333 U.S. 103, 109 (1948), and the exception precluded judicial
review until such time as the President had acted. Now the
President’s time to act has been cut short, but the order does not
take effect until that time is up, leaving little if any time during
which the exception bars judicial review.
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States carriers. Nevertheless, as the DoT explained in its order,
“the Government of Argentina is a signatory to an agreement
with ... the United States,” which provides:
User charges, imposed by the competent charging authority
of the other Party shall be just, reasonable, and non-
discriminatory. Airlines shall not be required to pay charges
higher than those paid by airlines of the charging Party.
The treaty makes no exception for “fortuitous” circumstances
and contemplates no inquiry into the cause of higher charges or,
indeed, whether it is within the power of a signatory government
to eliminate that difference; it simply states “[a]irlines shall not
be required to pay charges higher than those paid by airlines of
the [other nation],” and thereby defines “non-discriminatory” in
terms of impact, rather than intent. Because Aerolineas does not
dispute that it is paying only about one third of what the United
States carriers are paying for international flights at Ezeiza, we
can hardly say the DoT acted unreasonably in concluding the
United States carriers are paying “charges higher” than their
Argentine counterpart, contrary to the agreement between the
Government of Argentina and the United States prohibiting
“discriminatory” charges.
Whether the higher charges constitute an “unreasonable
discriminatory ... practice” under § 41310(c) is a question
committed to the DoT to answer “in the public interest,” subject
only to limited review by the President and to judicial review
under the APA, see 5 U.S.C. § 706(2) (court shall “set aside
agency action ... found to be ... arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law”). To the
extent Aerolineas argues the DoT misconstrued § 41310, we
must defer to the DoT’s reasonable interpretation of that section.
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984) (“[I]f
the statute is silent or ambiguous with respect to the specific
11
issue, the question for the court is whether the agency’s answer
is based on a permissible construction of the statute”).
The DoT points out that “the words ‘intentional’ or ‘intent’
appear nowhere in the statut[e],” and we see no reason to think,
in this context, the term “discriminatory” necessarily requires a
showing of intent, as opposed merely to a disparate impact. Cf.
Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (“Under a
disparate-impact theory of discrimination, a facially neutral
employment practice may be deemed illegally discriminatory
without evidence of the employer’s subjective intent to
discriminate”). Absent such a requirement, Aerolineas offers no
reason to believe the DoT acted unreasonably in concluding that
charging Argentine and United States carriers different rates was
an “unreasonable discriminatory ... practice” under § 41310(c).
C. The Countermeasure
Aerolineas also argues the DoT abused its discretion in
adopting a countermeasure without “indicat[ing] just how
assessing Aerolineas with additional fees will eliminate the
alleged discriminatory activity.” According to Aerolineas,
because the Argentine Executive is not empowered to dictate the
decisions of the Argentine Judiciary, the DoT’s countermeasure
will have no effect. As the DoT points out, however, the
Executive could unilaterally eliminate the difference in user
charges at Ezeiza merely by staying its own Decree.
Aerolineas’ next argument, that the DoT may not “[take] it
upon itself ... to level the playing field,” is directly contrary to
statute; § 41310(b) provides that “[i]f the discrimination is not
ended in a reasonable time through negotiation, the [DoT] shall
establish a compensating charge equal to the discriminatory
charge.” Whether this means the DoT might have taken the
further step of passing Aerolineas’ escrow payments through to
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the United States carriers, we need not decide. The DoT was
plainly authorized to levy the charge it imposed.
Finally, Aerolineas argues the DoT’s order may itself prove
to be “discriminatory” because Aerolineas, in the event it loses
its appeal to the Supreme Court of Argentina, would “be in the
position of paying a total of three pesos in Argentina and two to
the DOT, making it the only airline that is paying at the rate of
five” pesos per dollar for user charges on international flights at
Ezeiza. The DoT’s order, however, requires Aerolineas to pay
into escrow in the United States only the difference between
what it is paying for the use of Ezeiza and what United States
carriers are paying. The DoT reasonably represents that, “[i]f
circumstances ... change, and Aerolineas Argentinas in fact
begins paying at the rate charged to other carriers, it will have
every opportunity to bring this to the attention of the
Department,” where we trust it will find relief.
III. Conclusion
For the foregoing reasons, the petition for review is
Denied.