Association of Flight Attendants-CWA v. United States Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2009 Decided May 1, 2009

No. 08-1165

ASSOCIATION OF FLIGHT ATTENDANTS–CWA, AFL-CIO,
PETITIONER

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION,
RESPONDENT

VIRGIN AMERICA INC.,
INTERVENOR

On Petition for Review of an
Order of the Department of Transportation,
National Transportation Safety Board

Susan B. Jollie argued the cause for the petitioner. Edward
J. Gilmartin was on brief.
Mary F. Withum, Trial Attorney, United States Department
of Transportation, argued the cause for the respondent. Paul M.
Geier, Assistant General Counsel, Dale C. Andrews, Deputy
Assistant General Counsel, and Robert B. Nicholson and Kristen
C. Limarzi, Attorneys, United States Department of Justice,
were on brief.
Kenneth P. Quinn argued the cause for the intervenor.
Jennifer Trock was on brief.
 2

Before: HENDERSON, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
Association of Flight Attendants–CWA (AFA) challenges the
decision of the United States Department of Transportation
(DOT) to issue Intervenor Virgin America, Inc. (Virgin
America) a certificate of public convenience and necessity to
provide interstate air transportation as an “air carrier” under 49
U.S.C. § 41102. AFA asserts that DOT erred when it found that
Virgin America is “under the actual control of citizens of the
United States,” as required by 49 U.S.C. § 40102(a)(2) and
(a)(15). Because AFA has not demonstrated that any of its
members suffered an injury-in-fact that was caused by DOT’s
order certifying Virgin America, we conclude AFA has failed to
demonstrate its standing under Article III of the United States
Constitution.
I.
On December 8, 2005, Virgin America filed an application
for an interstate air certificate. Under 49 U.S.C. § 41102, DOT
is authorized to issue a certificate of public convenience and
necessity for air transportation to an “air carrier,” which term is
defined to include only “a citizen of the United States,” id.
§ 40102(a)(2); “a citizen of the United States” is defined in turn
to include a corporation which meets each of four requirements:
(1) it is “organized under the laws of the United States or a
State, the District of Columbia, or a territory or possession of the
United States,” (2) its “president and at least two-thirds of the
board of directors and other managing officers are citizens of the
United States,” (3) it is “under the actual control of citizens of
the United States,” and (4) “at least 75 percent of the voting
interest is owned or controlled by persons that are citizens of the
United States.” Id. § 40102(a)(15)(C). A number of airlines and
unions (including petitioner AFA) objected to Virgin America’s
 3

application on the ground that the airline did not meet the
statutory definition of a “citizen of the United States” because
it was in fact owned and controlled by United Kingdom citizen
Richard Branson, founder of Virgin Atlantic Airways, and
affiliated parties. On December 27, 2006, DOT denied the
application, finding that the airline did not meet the
requirements of section 40102(a)(15) because less than 75 % of
its total equity was owned by United States citizens and it was
not under the actual control of United States citizens. Order to
Show Cause, Docket No. OST-2005-23307, at 1 (Dec. 27, 2006)
(DOT).
Virgin America filed a revised application, which DOT
tentatively approved—subject to further modifications—on
March 20, 2007. Order to Show Cause, Docket No.
OST-2005-23307, at 1-2 (Mar. 20, 2007) (DOT). Virgin
America agreed to most of DOT’s modifications and on May 18,
2007, DOT approved the application and issued “a certificate of
public convenience and necessity to Virgin America Inc., to
engage in interstate scheduled passenger air transportation”
subject to certain terms and conditions set out in an appendix.
Final Order, Docket No. OST-2005-23307, at 5 (May 18, 2007)
(DOT). In an order issued August 17, 2007, DOT memorialized
an oral decision of August 7, 2007, which had made the
certificate immediately effective. Order Confirming Oral
Actions and Issuing Effective Certificate, Docket Nos.
OST-2005-23307, OST-2007-28673, at 1 (Aug. 17, 2007)
(DOT).
Meanwhile, AFA filed a petition for review of the Final
Order in the United States Court of Appeals for the Ninth
Circuit on July 17, 2007. By order filed April 21, 2008, the
Ninth Circuit granted DOT’s motion to transfer the petition to
this Circuit pursuant to 28 U.S.C. § 1631 because AFA has its
principal place of business in the District of Columbia.
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II.
AFA challenges DOT’s decision to issue a certificate to
Virgin America as arbitrary and capricious, 5 U.S.C.
§ 706(2)(A), and unsupported by substantial evidence, 49 U.S.C.
§ 46110(c). Before we address the merits of AFA’s petition, we
must consider whether the petitioner has Article III standing to
bring its challenge. See S. Cal. Edison Co. v. FERC, 502 F.3d
176, 179 (D.C. Cir. 2007) (citing Steel Co. v. Citizens for Better
Env’t, 523 U.S. 83, 94-102 (1998)). AFA asserts standing to
bring this challenge on behalf of its members, Pet’r Br. at 22,
and must therefore establish that “ ‘(a) its members would
otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the
lawsuit.’ ” Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429
F.3d 1130, 1135 (D.C. Cir. 2005) (quoting United Food &
Commercial Workers Union Local 751 v. Brown Group, Inc.,
517 U.S. 544, 553 (1996)) (internal quotation omitted). We
conclude that AFA has failed to make the threshold showing that
at least one of its members has Article III standing to sue in his
own right.
“The ‘irreducible constitutional minimum of standing
contains three elements’: (1) injury-in-fact, (2) causation, and
(3) redressability.” Miami Bldg. & Constr. Trades Council v.
Sec’y of Def., 493 F.3d 201, 205 (D.C. Cir. 2007) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)) (internal
quotation omitted). Thus, to establish standing, a litigant must
demonstrate a “personal injury fairly traceable to the [opposing
party’s] allegedly unlawful conduct and likely to be redressed by
the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984)
(citing Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)).
AFA asserts its members are injured by DOT’s certification
 5

order because of the increased competition it caused in the
markets Virgin America entered, which in turn caused other
airlines, which employ AFA members, to reduce the number of
flights in those markets and, consequently, the number of hours
their flight attendants work. Because the claimed injury—with
its attenuated chain of causation—is not “selfevident [sic],” it
was incumbent on AFA to “establish its standing by the
submission of its arguments and any affidavits or other evidence
appurtenant thereto at the first appropriate point in [this] review
proceeding,” that is,“with its opening brief.” Sierra Club v.
EPA, 292 F.3d 895, 900 (D.C. Cir. 2002); see D.C. Cir. R.
28(a)(7) (“In cases involving direct review in this court of
administrative actions, the brief of the appellant or petitioner
must set forth the basis for the claim of standing. . . . When the
appellant’s or petitioner’s standing is not apparent from the
administrative record, the brief must include arguments and
evidence establishing the claim of standing.” (citing Sierra
Club, 292 F.3d at 900-01)). AFA has failed to meet its burden
of production because it has not “ ‘show[n] a “substantial
probability” . . . that [DOT] caused its injury.’ ” Int’l Bhd. of
Teamsters, 429 F.3d at 1134 (quoting Sierra Club, 292 F.3d at
899 (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.
Cir. 2000))).
In support of standing, AFA appended to its opening brief
the September 26, 2008 affidavit of Kelle Porter Wells, AFA
Master Executive Council President at Alaska Airlines, Pet’r Br.
at A-213. Wells’s affidavit recites in relevant part that “DOT’s
approval of Virgin America to operate as a domestic U.S. carrier
has directly increased competition with Alaska Airlines and
among other factors, led it to begin a program to reduce flights
and staff,” that “[i]n late July 2008 AFA and [Wells] were told
by Alaska Airlines that it would be forced to reduce capacity by
what it then projected to be 5% for the last quarter of [2008],
and most likely to continue through 2009” and that on
September 25, 2008, “the Managing Director of Crew
 6

Scheduling at Alaska Airlines told [her] that . . . there would still
need to be an involuntary furlough of flight attendants.” Id. at
A-214-15. These averments are insufficient to establish the
requisite causation.
In Sierra Club, we made clear the “petitioner’s burden of
production in the court of appeals is . . . the same as that of a
plaintiff moving for summary judgment in the district court: it
must support each element of its claim to standing ‘by affidavit
or other evidence.’ ” Sierra Club, 292 F.3d at 899 (quoting
Defenders of Wildlife, 504 U.S. at 561). Moreover, a supporting
affidavit “ ‘must “set forth”. . . “specific facts” ’ ” pursuant to
Federal Rule of Civil Procedure 56(e), id. (quoting Defenders
of Wildlife, 504 U.S. at 561(quoting Fed. R. Civ. P. 56(e))), that
is, it “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant is
competent to testify on the matters stated,” Fed. R. Civ. P.
56(e)(1). Thus, “[a]lthough, as a rule, statements made by the
party opposing a motion for summary judgment must be
accepted as true for the purpose of ruling on that motion, some
statements are so conclusory as to come within an exception to
that rule.” Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999); see also Dist. Intown Props. Ltd. P’ship v. District of
Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) (“[T]he court
must assume the truth of all statements proffered by the
non-movant except for conclusory allegations lacking any
factual basis in the record.”) (emphasis added). Wells’s
assertion of causation is just such a conclusory statement.
In Greene, we affirmed the grant of summary judgment to
the defendant on the plaintiff’s claim of retaliatory failure to hire
because the district court correctly declined to accept as true the
plaintiff’s “conclusory” representation in an affidavit that “she
applied for summer jobs in 1996 and 1997 and was not hired
although ‘another student, who had less experience and
education was hired back’ in 1996.” 164 F.3d at 675. “Absent
 7

supporting facts,” we explained, this statement did not
demonstrate the requisite retaliatory animus because “a jury
would be in no position to assess her claim of superiority.” Id.;
see also Hussein v. Nicholson, 435 F.3d 359, 365 (D.C. Cir.
2006) (affirming summary judgment in religious discrimination
suit because “district court correctly found that [appellant’s]
evidence of religious animus consisted merely of conclusory
allegations in his own affidavit”) (citing Dist. Intown Props.,
198 F.3d at 878). Wells’s causation claim fares no better.
While Wells’s affidavit cites Alaska Airlines officials as the
source of the claimed injury—“an involuntary furlough”
resulting from the fact that Alaska Airlines “would be forced to
reduce capacity”—it offers no authority for its claim that
“DOT’s approval of Virgin America to operate as a domestic
U.S. carrier” was among the “factors” that “led [Alaska
Airlines] to begin a program to reduce flights and staff.” Pet’r
Br. at A-214-15. Competition from Virgin America may have
played a role in Alaska Airlines’s decision to reduce flights and
staff—or the decision may have been attributable entirely to
other factors, such as higher fuel prices and a sinking economy.
See Dan Richman, Alaska to Cut Flights, Jobs, Seattle Post-
Intelligencer, Sept. 12, 2008, http://www.seattlepi.com/business/
378900_alaska13.html (“With the announcement that it will lay
off up to 10 percent of its work force and make further cuts to its
flight schedule, Alaska Airlines has joined the ranks of troubled
airlines both here and abroad. Many U.S. airlines are cutting
both jobs and flights as they struggle with high fuel prices and
a troubled economy.”). We cannot tell the cause from the record
and we see no basis in the affidavit—which itself provides no
factual support for the asserted causation—to suppose that Wells
had personal knowledge of the cause or was otherwise
competent to testify as to its nature. Thus, the affidavit’s
assertion of causation has no more force under the summary
judgment standard we apply than if it were alleged in a
complaint. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
 8

(1990) (“The object of [Rule 56(e)’s “specific facts”
requirement] is not to replace conclusory allegations of the
complaint or answer with conclusory allegations of an
affidavit.”); cf. Tex. Indep. Producers & Royalty Owners Ass’n,
410 F.3d 964, 972-73 (7th Cir. 2005) (rejecting as “conclusory”
affidavits’ allegations that environmental group’s individuals
were harmed by EPA’s authorization of general permits for
construction site discharges because group “fail[ed] to adduce
specific facts in its proffered affidavits to support its claim that
the water bodies are ‘directly affected by pollution from
construction activities subject to the General Permit’ ”); Kitty
Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 459 (5th Cir. 2005)
(rejecting air cargo company’s claim of injury from U.S.
Department of Labor ruling that pilots were subject to prevailing
wage requirements because “nothing in the record, beyond a
conclusory statement in the affidavit of its Chief Executive
Officer,” supported “assertion that an increased prevailing wage
determination will interfere with its ability to assign pilots
according to standard operating procedures and business
considerations”).
Stripped of the conclusory causal averment, Wells’s
affidavit demonstrates only that as of December 2007 Alaska
Airlines planned to reduce capacity and furlough flight
attendants. Missing is the crucial causal connection tying the
actions to competition from Virgin America rather than to some
other factor. For this reason, we conclude that AFA has failed
to meet its burden of production under Sierra Club to
demonstrate with its opening brief that its members have
suffered or will suffer any “personal injury fairly traceable to
[DOT’s] allegedly unlawful conduct.” Allen v. Wright, 468 U.S.
at 751.1 Nor do the circumstances of this case persuade us we

1
AFA also appended to its opening brief a March 7, 2007 e-mail
(“representative of several hundreds of communications that [DOT]
 9

should look beyond the opening brief for evidence of standing.
This is not a case where the petitioner “reasonably, if
inaccurately,” assumed its standing was self-evident when it
filed its opening brief. See Am. Library Ass’n v. FCC, 401 F.3d
489, 490-91 (D.C. Cir. 2005) (ordering supplemental post-
argument submissions where “[b]oth petitioners and the
Commission reasonably, if inaccurately, concluded that
petitioners’ standing was self-evident, so neither party pursued
the matter in their opening briefs to the court” and intervenor
only “interposed a vague and limited challenge to petitioners’
standing”). To the contrary, AFA recognized the need to
supplement the administrative record with Wells’s affidavit and
both DOT and, in particular, intervenor Virgin America
affirmatively challenged AFA’s constitutional standing. See
Resp’t Br. at 12; Intervenor Br. at 10-14. Nor is this a case
where the petitioner’s lapse should be excused because reply
submissions “make it patently obvious that . . . at least one of
[AFA’s] members will suffer a cognizable ‘injury in fact’ as a
result of the disputed order.” Communities Against Runway
Expansion, Inc. v. FAA, 355 F.3d 678, 685 (D.C. Cir. 2004).
The submissions appended to AFA’s reply brief fall far short of
this standard.
With its reply brief, AFA submitted a number of affidavits
from furloughed AFA members, which simply proffer the
factually unsupported opinion that one carrier or another
furloughed the affiant or reduced his hours at least in part

was receiving concerning [the certificate application proceeding]”),
which asserted simply—and speculatively (in the subjunctive)—that
“[s]hould the DOT approve [its] application, Virgin America could
displace thousands of good paying U.S. jobs.” Pet’r Br. at A-207
(emphasis added). That approval “could” reduce flight attendant jobs
does not show a “substantial probability” that it will do so. Int’l Bhd.
of Teamsters, 429 F.3d at 1134.
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because of Virgin America’s entry into the passenger local
transportation market.2 These averments are as conclusory as
the similar claim in Wells’s affidavit. Nor have we any more
reason to believe than we did of Wells that these affiants had
personal knowledge of the cause of the reductions or were
otherwise competent to testify as to causation. We nonetheless
examine one affidavit which provides somewhat more detail
than the others.
The affidavit of Cathy J. Hampton, a furloughed United

2
See Aff. of Dolores Myers at 2 (Nov. 21, 2008) (“The
Department of Transportation allowance of entry by Virgin America
into the U.S. market where United Airlines flies has been part of the
reason that United Airlines has had to reduce its flight attendant
staff.”); Aff. of Kathleen Birner at 2 (Nov. 21, 2008) (“With the
current loss of income due to the furlough, I have had to bring my
expenses down to a minimum and currently go to the San Mateo Food
Bank each month for food, because of the Department of
Transportation’s decision to allow Virgin America to operate within
the United States of America.”); Aff. of Roman Martinez at 2 (Nov.
28, 2008) (“I am unable to get my normal flight schedule due to
overstaffing that is in part due to Virgin America’s entry into the
markets where I work as an Alaska Airlines flight attendant.”); Aff.
of Kelly Kochanek at 2 (Dec. 16, 2008) (“I am unable to get my
normal flight schedule with Alaska Airlines due to overstaffing, in part
because of Virgin America’s entry into the markets where I work as
an Alaska Airlines flight attendant. . . . I can’t get enough flying to
cover my bills each month. This was not a problem before Alaska had
to make flight cutbacks, in part because the Department of
Transportation has allowed Virgin America to fly domestic routes
within the United States.”); Aff. of Dawn Luckman at 2 (Dec. 16,
2008) (“I am unable to get my normal flight schedule with Alaska
Airlines due to overstaffing, in part because of Virgin America’s entry
into the markets where I work as an Alaska Airlines flight attendant.”).
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Airlines (United) flight attendant, contains the following
relevant statements:
4. I had heard from United that they were intending to
reduce flying in the domestic network, specifically in
markets served by lower cost carriers, and especially
foreign airlines.
5. The one foreign-controlled airline that I heard about
in the USA is Virgin America.
6. My understanding is that United is reducing its
service because Virgin America is undercutting United,
and “my flying” will go to Virgin America.
Aff. of Cathy J. Hampton at 2 (Nov. 21, 2008). Like Wells’s,
Hampton’s affidavit identifies her employer as the source of her
knowledge of the planned flight reductions and it goes even
further to state that United itself represented it was planning
reductions “in markets served by lower cost carriers, and
especially foreign airlines.” Id. (emphasis added). Yet the
affidavit does not attribute to United—or to any other specific
source—Hampton’s assertion that Virgin America (and only
Virgin America) is a “foreign-controlled airline.” Id. Nor does
she identify any objective factual basis for her vaguely couched
“understanding” that “United was reducing its service because
Virgin America is undercutting United.” Id. (emphasis added).
In short, neither Hampton’s nor any other flight attendant’s
affidavit compensates for AFA’s failure to demonstrate standing
in its opening brief because they do not “make it patently
obvious that . . . at least one of [AFA’s] members will suffer a
cognizable ‘injury in fact’ as a result of ” DOT’s certification
order. Communities Against Runway Expansion, Inc., 355 F.3d
at 685 (emphasis added). Nor does the affidavit of AFA’s
“OSHA Specialist” Dinkar Mokadam, also appended to the
reply brief, suffice.
 12

Mokadam assembled Bureau of Transportation Statistics
data for 2007 into three charts, which, the affidavit asserts,
“suggest[] that introduction of VA nonstop services during
August, 2007 may have contributed to reductions in market
share for United Airlines’ nonstop flight services between SFO
and LAX, as well as JFK and LAX, in particular during the
month of September, 2007.” Aff. of Dinkar Mokadam at 2
(Nov. 25, 2008) (emphasis added). Even apart from the
tentative and speculative tone of this statement, the charts are of
little help because they show a reduction in passenger market
share, that is United’s percentage of all of the passengers flying
in a particular market; they do not show the number of flights
United operates—or even the actual number of passengers it
carries—in a given market. In any event, even as to market
share, the charts do not demonstrate a “substantial probability,”
Int’l Bhd. of Teamsters, 429 F.3d at 1134, that Virgin America’s
“nonstop services during August, 2007” “contributed to
reductions . . . for United Airlines’ nonstop flight services
between SFO and LAX, as well as JFK and LAX, in particular
during the month of September, 2007.” Aff. of Dinkar
Mokadam at 2 (Nov. 25, 2008). Although the charts reveal that
United’s market share of the New York/Los Angeles route
decreased significantly in August-September 2007, they also
show that United’s market share of this route had been
decreasing gradually since February 2007—months before
Virgin America began flying in August 2007—and that United’s
market share of the New York/San Francisco route had started
to drop significantly as early as February or March 2007 and had
then leveled off and even risen slightly in September 2007 after
Virgin America began service on the route in August, while
United’s market share of the Los Angeles/San Francisco route
began to drop precipitously as early as May 2007.3 Mokadam

3
In fact, there is evidence Alaska Airline’s immediate reaction to
Virgin America’s competition was to increase service. See Ben
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also assembled a table showing the entry date of Virgin America
into certain markets and the “numbers of recently announced
furloughs of AFA flight attendant members at one or both
airport domiciles,” Reply Br. at RA-24 (case altered), but again
there is nothing to causally tie the “recently announced”
furloughs (as of Nov. 25, 2008) to Virgin America’s entry into
the identified markets (at various times from August 8, 2007 to
September 4, 2008) rather than to other economic or other
business reasons.
In sum, the only “evidence” supporting the causation prong
of the standing test consists of the unsubstantiated allegations by
AFA’s members that DOT’s certification of Virgin America and
Virgin America’s subsequent entry into various passenger
carrier markets at least partially caused other airlines to reduce
flights and to cut back flight attendants’ working hours.
Without some underlying factual basis for attributing furloughs
and hour reductions to Virgin America’s competing
flights—rather than to other factors—we cannot accept these
statements as anything other than conclusory and therefore
inadequate under Rule 56(e). Because AFA did not demonstrate
a “substantial probability,” Int’l Bhd. of Teamsters, 429 F.3d at
1134, that Virgin America caused the alleged injuries to AFA’s
members, it failed to carry its burden of production to establish
standing. Accordingly, we dismiss the petition for review for
lack of subject matter jurisdiction.
So ordered.

Mutzabaugh, Turf war? Alaska Air makes move ahead of Virgin
America’s Seattle debut, USA Today, Jan. 18, 2008, http://
blogs.usatoday.com/travel/flights/item.aspx?type=blog&ak=443372
92.blog (“Alaska Airlines is beefing up its service between Seattle and
six California markets, a move that comes just ahead of new
competition coming from Virgin America.”).