United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-10860
KITTY HAWK AIRCARGO, INC.,
Plaintiff-Appellee
versus
ELAINE CHAO, Etc.
Defendant
AIR LINE PILOTS ASSOCIATION; HAL WINTERS
Intervenor Defendants-Appellants
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Appeals from the United States District Court
for the Northern District of Texas
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Before, DAVIS, STEWART and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Intervenors Airline Pilots Association (ALPA) and Hal Winters
appeal the district court’s granting of summary judgment to the
plaintiff, Kitty Hawk Aircargo, Inc. The district court enjoined
the defendant, the Secretary of the United States Department of
Labor (the Secretary), from implementing, against Kitty Hawk, a
ruling of the Department of Labor’s Administrative Review Board
(ARB) concluding that pilots are “service employees” subject to the
prevailing wage requirements of the McNamara-O'Hara Service Contract
No. 04-10772
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Act (SCA). We conclude that Kitty Hawk lacked standing to
challenge the ARB’s ruling in the district court. We therefore
reverse the judgment of the district court and remand with
instruction to dismiss the complaint.
I
The United States Postal Service contracts with air cargo
carriers for the transportation of the nation’s mail. There are
three major types of Postal Service air cargo contracts: ANET, WNET
and CNET contracts. ANET and WNET contracts are year-round
contracts; CNET contracts are short-term peak Christmas season
contracts. In addition to the three major types of contracts, the
Postal Service enters into some air transport contracts between
certain pairs of cities during peak periods (point-to-point
contracts) and for mail delivery on direct and indirect flights on
the carrier’s transportation system between certain dates (ASYS
contracts). The SCA applies to WNET, ANET, and CNET contracts and,
apparently, to point-to-point contracts. There are exemptions,
however, for certain ASYS contracts based upon the proportion of
the carrier’s revenue attributable to Postal Service business. The
plaintiff, Kitty Hawk Air Cargo Inc., formerly held certain
contracts subject to the SCA.
Every contract subject to the SCA must include, among other
things, a “provision specifying the minimum monetary wages to be
paid the various classes of service employees in the performance of
the contract or any subcontract thereunder, as determined by the
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Secretary, or his authorized representative, in accordance with
prevailing rates for such employees in the locality . . . .”1 The
Secretary has delegated the task of making prevailing wage
determinations to the Wage and Hour division (WHD).2 In 1996, the
WHD issued wage determination No. 95-0229 (Rev. 1) which
significantly increased the prevailing wage determination for
captains and first officers (pilots) transporting mail.
The Postal Service, which is required by regulation to
increase contract prices to defray the additional costs of a
changed wage determination,3 challenged the wage determination.
Numerous other interested parties also challenged the new wage
rate. The parties argued that the WHD used an improper methodology
to calculate the new wage rate and also argued that pilots are
exempt from the prevailing wage provisions of the SCA because they
are “professionals” rather than “service employees” under the SCA.
On December 13, 1996, the WHD issued a letter ruling reducing the
pilot wage rate for ANET and WNET pilots. The letter ruling also
explicitly exempted pilots on CNET and other short-term contracts
from that wage rate and instead issued a separate, significantly
lower, rate for those pilots. The WHD, however, failed to address
whether pilots are professionals and therefore not subject to the
prevailing wage provisions of the SCA.
1
41 U.S.C. § 351(a)(1).
2
29 C.F.R. § 4.1a(c).
3
22 C.F.R. § 22.1006.
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Kitty Hawk and the Postal Service, among others, appealed the
WHD’s decision to the ARB. The ARB remanded the matter to the WHD
to make an initial determination regarding the applicability of the
SCA’s prevailing wage requirements to pilots. On remand, the WHD
determined that pilots are not professionals exempt from the wage
provisions of the SCA. Kitty Hawk, the Postal Service and others
again appealed to the ARB. The ARB affirmed the WHD’s
determination that pilots are not exempt from the prevailing wage
provisions of the SCA but found that the WHD’s method of
calculating the wage rates for ANET and WNET pilots was contrary to
the statute. Thus, the ARB remanded the matter to the WHD for a
recalculation of the prevailing wage for air cargo pilots working
on ANET and WNET Postal Service contracts.
Kitty Hawk filed a complaint in the district court on July 16,
2001 seeking judicial review of the ARB’s decision. On January 10,
2001, however, the Postal Service had entered into a seven-year
renewable contract with FedEx for the year-round, nationwide
transportation of mail.4 Accordingly, by August 21, 2001, the
Postal Service had terminated, for its own convenience, all of
Kitty Hawk’s major year-round contracts. On January 29, 2002,
Kitty Hawk entered into a settlement agreement with the Postal
Service concerning the termination of Kitty Hawk’s largest
contract, WNET 99-01. As part of the settlement, Kitty Hawk agreed
4
See Emery Worldwide Airlines, Inc. v. United States, 264
F.3d 1071, 1074 (Fed. Cir. 2001)(discussing the FedEx contract).
No. 04-10772
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to indemnify the Postal Service for any liability to the pilots who
had worked on that and other contracts “for [SCA] issues related to
the disputed pilot wage determinations.” Kitty Hawk received more
than $30 million in the settlement.
ALPA and Captain Hal Winters, a pilot employed by another air
cargo company, intervened in the district court, with Kitty Hawk’s
consent, on the side of the Secretary. On May 30, 2002, ALPA and
Winters filed a motion for summary judgment arguing, among other
things, that Kitty Hawk lacked standing to challenge the ARB’s
decision. The district court denied the motion without opinion.
The Secretary and Kitty Hawk subsequently filed cross-motions for
summary judgment. The district court granted Kitty Hawk’s motion
for summary judgment and denied that of the Secretary.
The district court’s initial judgment set aside the ARB’s
ruling and enjoined the Secretary from implementing the decision.
The Secretary filed a motion to amend the judgment arguing that,
because Kitty Hawk was the only party to the ARB’s action that
sought judicial review, the judgment should be limited to Kitty
Hawk. The district court agreed and issued an amended judgment
which did not set aside the ARB ruling but merely enjoined the
Secretary from taking action against Kitty Hawk in accordance with
the ruling or from taking any action against Kitty Hawk that would
be inconsistent with the district court’s finding that Kitty Hawk
pilots are not service employees subject to the prevailing wage
No. 04-10772
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requirements of the SCA. Intervenors ALPA and Winters appeal from
the amended judgment; the Secretary did not appeal.
II
As an initial matter we address Kitty Hawk’s motion to dismiss
the appeal for lack of jurisdiction. According to Kitty Hawk, the
appellants lack standing to appeal because neither was a party at
the district court and neither can individually satisfy the Article
III requirement of injury resulting from the judgment. We conclude
that ALPA satisfies Article III and, therefore, this court has
jurisdiction over the appeal, regardless of Winters’ ability to
independently satisfy Article III.
ALPA and Winters intervened in the district court on the side
of the Secretary with the consent of Kitty Hawk. Generally, a
party’s status as an intervenor below does not confer standing to
appeal if the party on whose side intervention was permitted
chooses not to appeal.5 “Rather, intervenors who wish to prosecute
an appeal on their own must separately fulfill the injury,
causation, and redressability requirements of Article III.”6
“Where standing to appeal is at issue, appellants must
demonstrate some injury from the judgment below.”7 The judgment
below applies only to the Secretary and Kitty Hawk. Thus, Kitty
Hawk argues that because there is nothing in the record to
5
See Diamond v. Charles, 476 U.S. 54, 68 (1986).
6
Sierra Club v. Babbitt, 995 F.2d 571, 574 (5th Cir. 1993).
7
Id., 575.
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demonstrate that ALPA has any relationship to the Kitty Hawk
pilots, neither ALPA nor the pilots it represents are injured by
the judgment. Furthermore, Kitty Hawk argues that Winters, a pilot
who does not work for Kitty Hawk, is not injured by the district
court’s decision.
ALPA is the certified collective bargaining representative of
the Kitty Hawk pilots. Kitty Hawk does not dispute that ALPA
represents the pilots nor does it seriously dispute that, as the
collective bargaining representative of the pilots whose wages are
at issue, ALPA has standing to appeal the district court’s
judgment. Rather, Kitty Hawk contends that ALPA cannot point to
any proof in the record of its representation of the Kitty Hawk
pilots and, therefore, this court lacks jurisdiction over the
appeal.
Kitty Hawk is correct that there is no evidence in the record
proving that ALPA is the collective bargaining representative of
the Kitty Hawk pilots. At the time that ALPA intervened in the
district court action, it did not represent the Kitty Hawk pilots.
Therefore, it did not allege that it represented those pilots and
did not submit evidence to that effect. In 2003, however, ALPA
merged with the Kitty Hawk pilots’ prior certified collective
bargaining representative, the Kitty Hawk Pilots Association (KPA).
On January 5, 2004, the National Mediation Board (NMB) approved the
transfer of KPA’s certification to ALPA. This approval is
published in the official administrative agency reporter, is
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available on the agency’s website and on Lexis and Westlaw.8 Thus,
ALPA’s representation of the Kitty Hawk pilots is capable of
accurate and ready determination by resort to a source whose
accuracy on the matter cannot reasonably be questioned. We
therefore take judicial notice of ALPA’s status as the collective
bargaining representative of the Kitty Hawk pilots.9 Additionally,
we conclude that as the collective bargaining representative of the
Kitty Hawk pilots, ALPA has standing to bring this appeal.10
Furthermore, because jurisdiction over this appeal has vested,
Winters’ presence in the appeal does not destroy jurisdiction even
8
See 31 NMB 103; 31 NMB No. 25; 2004 NMB Ltr. LEXIS 1.
9
See, e.g., United States v. Herrera-Ochoa, 245 F.3d 495,
501 (5th Cir. 2001)(quoting Fed. R. Evid. § 201(b))(Internal
quotation marks omitted)(“Judicial notice may be taken of any
fact not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned.")
10
See, e.g., Supreme Beef Processors, Inc. v. USDA, 275
F.3d 432, 437 n.14 (5th Cir. 2001) (quoting Central and South
West Services, Inc. v. EPA, 220 F.3d 683, 698 (5th Cir.
2000))(“An association has standing to bring a suit on behalf of
its members when: (1) its members would otherwise have standing
to sue in their own right; (2) the interests it seeks to protect
are germane to the organization's purpose; and (3) neither the
claim asserted nor the relief requested requires the
participation of individual members.")
No. 04-10772
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if he cannot individually satisfy the requirements of Article III.11
Accordingly, we deny Kitty Hawk’s motion to dismiss the appeal.
III
We now turn to the appellants’ argument that Kitty Hawk lacked
standing to challenge the ARB’s ruling in the district court. As
previously noted, standing, one of the doctrines arising under the
case and controversy requirement of Article III, requires that
plaintiffs establish that: “they have suffered an 'injury in fact';
the injury is 'fairly traceable' to the defendant's actions; and
the injury will 'likely . . . be redressed by a favorable
decision."12 "An injury in fact [is] an invasion of a legally
protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical."13 Where,
as here, a plaintiff is seeking injunctive or declaratory relief,
the plaintiff must demonstrate that there is a substantial
likelihood that it will suffer injury in the future.14 Finally,
"standing is . . . determined as of the commencement of the suit."15
11
Ruiz v. Estelle, 161 F.3d 814, 832 (5th Cir.
1998)(holding that where a valid Article III case or controversy
exists, the court’s jurisdiction vests and the presence of
additional parties who could not, individually, satisfy Article
III does not destroy jurisdiction).
12
Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th
Cir. 2001)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992)).
13
Lujan, 504 U.S. at 560.
14
Bauer v. Texas, 341 F.3d 352, 357-58 (5th Cir. 2003).
15
Id., 571-72 n.5.
No. 04-10772
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On July 16, 2001, the date of the commencement of this suit,
Kitty Hawk still held at least one contract subject to the SCA and
to the disputed prevailing wage determination.16 Those contracts
all contained a clause, as mandated by regulation,17 stating that
the Postal Service would adjust the contract price if any
applicable prevailing wage rate was increased. Thus, Kitty Hawk
was not likely to suffer any direct financial harm as a result of
any increase in the prevailing wage for pilots applicable to
contracts it held when it filed its complaint. Moreover, Kitty
Hawk has admitted that, when calculating labor costs for proposals
on Postal Service contracts subject to the SCA, it considers the
applicable prevailing wage determinations. Essentially, the cost
of any increased wage rate for pilots will be passed on to the
Postal Service. Therefore, Kitty Hawk is not likely to suffer any
lost profits in the future as a result of an increase in the
disputed prevailing wage rate.
Recognizing this fact, Kitty Hawk instead argues that it is
likely to suffer various indirect harms. As to future contracts,
Kitty Hawk claims that, if the prevailing wage determination is
increased, it would have to either pay all pilots an allegedly
noncompetitive wage, or implement a two-tier wage system which,
according to Kitty Hawk, would interfere with the existing
16
The record indicates that Kitty Hawk’s largest contract,
WNET-99-01, was terminated on August 21, 2001 and that its other
contracts were either completed or terminated by that date.
17
See 22 C.F.R. § 22.1006.
No. 04-10772
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seniority system and prevent Kitty Hawk from assigning pilots to
routes according to established operational procedures and business
considerations. Kitty Hawk, however, does not allege and has not
proven that it is likely to bid on or to receive future ANET or
WNET contracts. Rather, Kitty Hawk’s opportunities for Postal
Service contracts are now apparently limited to CNET, ASYS and
point-to-point contracts. The disputed wage determination,
however, does not apply to CNET contracts and may not apply to
point-to-point and ASYS contracts.18 The wage determination that
applies to CNET (and possibly other short-term contracts) mandates
a far lower wage than the disputed wage determination and there is
no indication in the record that the reduced wage rate applicable
to those contracts is likely to increase to an objectionable level
in the near future. In addition, the SCA itself only applies to
ASYS contracts under certain circumstances. Thus, Kitty Hawk’s
claims of injury resulting from future contracts relies on a string
of hypotheticals and conjectures: if it receives future contracts,
if those contracts are subject to the SCA, if the disputed
18
In its 1996 letter ruling, the WHD concluded that the
methodology used to calculate the prevailing wage rate for WNET
and ANET contracts, which included the consideration of the wages
paid to pilots by major airlines, was inappropriate for “smaller
short term contracts.” Thus, the WHD issued a separate - much
lower - prevailing wage for “other small limited service
contracts, including the Postal Service’s CNET . . . contracts.”
Point-to-point and ASYS contracts are smaller limited service
contracts and, therefore, are likely subject to the lower
prevailing wage determination. The disputed wage determination
itself, as opposed to the letter ruling, however, excludes only
CNET contracts. Thus, it is unclear from the record which
prevailing wage determination is applicable to point-to-point and
ASYS contracts.
No. 04-10772
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prevailing wage applies to those contracts or if the prevailing
wage rate applicable to those contracts significantly increases,
etc.
Moreover, even if all of these conjectures become reality, the
primary injury Kitty Hawk claims it will suffer, namely, having to
implement a two-tiered wage system, is likely no injury at all.
Kitty Hawk admittedly already has a seniority system whereby more
senior pilots receive preference for more lucrative routes. It is
not apparent, and Kitty Hawk has never proven, that having Postal
Service contracts that generate pilot income greater than that
generated by commercial contracts will interfere with that system.
Furthermore, Kitty Hawk cites nothing in the record, beyond a
conclusory statement in the affidavit of its Chief Executive
Officer, in support of its assertion that an increased prevailing
wage determination will interfere with its ability to assign pilots
according to standard operating procedures and business
considerations. At the summary judgment stage, "the plaintiff can
no longer rest on . . . mere allegations, but must set forth by
affidavit or other evidence specific facts" validating his right to
standing.19
Kitty Hawk also claims that it has standing by virtue of its
assumption of the Postal Service’s liability for back pay per the
contract termination settlement agreement. Of course, the contract
had not yet been terminated when Kitty Hawk filed this suit and
19
Lujan, 504 U.S. at 561 (emphasis added).
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Kitty Hawk had not assumed liability for any back pay.
Furthermore, there is no indication in the record that the specific
terms of the settlement agreement were anticipated by Kitty Hawk at
the time it filed the complaint. “As with all questions of subject
matter jurisdiction except mootness, standing is determined as of
the date of the filing of the complaint . . . .”20 The party
invoking the jurisdiction of the court cannot rely on events that
unfolded after the filing of the complaint to establish its
standing.21 Thus, Kitty Hawk’s assumption of the Postal Service’s
liability for back pay is not relevant to the standing analysis.
Finally, Kitty Hawk submitted a letter following oral
argument, purportedly pursuant to Rule 28(j) of the Federal Rules
20
Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th
Cir. 1991); See also Newman-Green, Inc. v. Alfonzo-Larrain, 490
U.S. 826, 830 (1989)("The existence of federal jurisdiction
ordinarily depends on the facts as they exist when the complaint
is filed"); White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000)
("Standing is examined at 'the commencement of the litigation'");
Park v. Forest Serv. of the United States, 205 F.3d 1034, 1037
(8th Cir. 2000) ("We do not think, however, that the actual use
of checkpoints in 1997, 1998, and 1999 is relevant on the issue
of standing because all of these events occurred after [the
plaintiff] filed her original complaint"); Perry v. Arlington
Heights, 186 F.3d 826, 830 (7th Cir. 1999)(“Because standing goes
to the jurisdiction of a federal court to hear a particular case,
it must exist at the commencement of the suit.”)
21
See Lujan, 504 U.S. at 570 n.4 (explaining that acts
occurring after commencement of the suit cannot retroactively
create jurisdiction); Park, 205 F.3d at 1037 (8th Cir. 2000)
(holding that a plaintiff cannot rely on events occurring after
commencement of the suit to establish injury-in-fact) Perry, 186
F.3d at 830 (concluding that plaintiff, who established residency
in municipality after initiating suit, did not have standing to
challenge the constitutionality of articles of the municipal code
because he was not a resident when he filed his complaint.)
No. 04-10772
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of Appellate Procedure, raising new arguments concerning its
standing. Specifically, Kitty Hawk claims, that “the Secretary’s
position is that an employee covered by a monthly wage
determination under the . . . [SCA] who works even one day under a
covered contract must be paid at the SCA level for the entire
month.”22 Kitty Hawk cites no authority for this statement.
Therefore, this assertion certainly does not fall within the ambit
of Rule 28(j), which permits parties to bring pertinent legal
authority to the court’s attention following briefing.
Furthermore, without a citation either to the record or to legal
authority we cannot gauge the veracity of the assertion. The
applicable regulations do not contain such a requirement and none
was apparently alleged in the district court. Accordingly, we do
not consider Kitty Hawk’s allegation probative of its standing.
In sum, Kitty Hawk has not established that, at the time it
filed its complaint, it had suffered any injury-in-fact, or that
there was a substantial likelihood that it would suffer an injury-
in-fact in the future, and the district court lacked jurisdiction
over Kitty Hawk’s complaint. Accordingly, we REVERSE the judgment
of the district court and REMAND with instructions to dismiss the
complaint.
22
Kitty Hawk also contends that its agreement to indemnify
the Postal Service for back pay was not voluntary. This
contention is irrelevant for the reasons previously stated.