DC CIRCUIT DENIES ALPA’S SUIT AGAINST DOT REGARDING NORWEGIAN AIR PERMIT
June 7, 2018
On May 11, 2018, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) denied challenges put forth by several airline unions in their suit against DOT, Air Line Pilots Association International et al. v. Elaine L. Chao, ruling that the agency had no reason to deny a foreign air carrier permit to Norwegian Air Shuttle’s Irish subsidiary, Norwegian Air International (NAI). The Air Line Pilots Association International, the Association of Flight Attendants-CWA, the Allied Pilots Association and the Southwest Airlines Pilots’ Association had argued that DOT should have denied NAI’s application for a foreign air carrier permit to operate flights in the United States. The court held that U.S. law and the Air Transport Agreement between the U.S. and the European Union provided no basis to deny the application simply because it may or may not be in the public interest (or against the interests of certain labor organizations).
DC Circuit Judge David S. Tatel wrote that “neither federal law nor international agreement requires the Secretary to deny a permit on freestanding public-interest grounds where, as here, an applicant satisfies the requirements for obtaining a permit.”
At issue in the case was DOT’s December 2016 decision to award a foreign air carrier permit to NAI after a three-year review which was characterized by strong resistance from labor groups, politicians and other parties who argued that NAI’s employment practices give it an unfair competitive advantage.
The unions’ challenge focused on DOT’s alleged failure to uphold labor provisions in the U.S.-European Union (Iceland, Norway) Air Transport Agreement. The groups collectively argued that NAI’s application and business model—under which the company’s pilots and cabin crew are hired through a third-party company in Singapore—“run counter” to that agreement and that the airline should not have been granted a foreign air carrier permit to serve the U.S.
Judge Tatel sided with the Department of Transportation and the airline, however, finding that DOT was obligated to issue a permit to a qualified applicant, approved by its home jurisdiction, which Norwegian was. The panel did rule in the unions’ favor on the issue of standing. The court wrote that the unions had been able to demonstrate real harm that could come from the decision and that DOT’s arguments to the contrary were not persuasive.
The two other judges on the panel wrote separate, concurring opinions. Judge Judith W. Rogers wrote that although the unions had not convinced the panel that the Department of Transportation violated the law, they still could petition for conditions to be imposed on Norwegian’s approval through the Joint Committee responsible for the Air Transport Agreement.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Alexander Matthews (amatthews@eckertseamans.com or 202-659-6633).
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