Conservation Force staff attorneys Matt Boguslawski and Regina Lennox argued the case against Delta Airlines before the court of appeals of the firth court.
By Regina Lennox
Continuing readers have followed our suit against Delta Air Lines. On October 15, 2015, Conservation Force, Dallas and Houston Safari Clubs, Corey Knowlton, CAMPFIRE, and the Tanzania Hunting Operators Association sued Delta to challenge its ban on the transport of Big Five trophies.
Delta moved to dismiss the complaint in late December 2015. After briefing, in June 2016, the district court granted Delta's motion in its entirety. In July, Conservation Force appealed the district court's ruling. Intensive briefing followed. On March 8, 2017, we finally argued our case before the US Court of Appeals for the Fifth Circuit in New Orleans.
Before a panel including Judges Barksdale, Graves and Higginson, we argued three primary points. First, this case impacts the conservation system of southern Africa, which relies on licensed, regulated hunting to generate the conservation incentives that have helped the wildlife to recover. Delta's embargo threatens this system. It violates the "enhancement" policy made clear in the Endangered Species Act. A common carrier-a public servant-cannot take a position against public policy, which is exactly what Delta's ban is doing.
A common carrier also cannot pick and choose among the specific items that it carries. It must treat all shippers indiscriminately, and it must carry similar articles within a class of goods. A carrier may change the scope of its services only with a good faith showing and operational need. But here, Delta has not offered a good faith reason. It admits it made a "business decision" in the immediate wake of the allegedly illegal hunt of "Cecil the lion," a mere three months after confirming it would continue to carry hunting trophies. Delta basically pandered to Facebook activism, and that decision was not made in good faith and for any reason besides publicity.
We pointed out to the court, in a hypothetical that one judge called "intriguing," it would be very difficult to draw a line if a carrier can impose a ban facially targeted at cargo, but really intended to impact people. For example, the current President is hotly debated on social media. Whether Delta chose to demonstrate its support for him, by banning the transport of goods from companies that have spoken out against his policies, or whether Delta chose to ban the transport of Trump-branded products, either ban would facially target cargo. However, in both cases, Delta would really aim at influencing public policy. Similarly here, Delta's ban on Big Five trophies right after "Cecil" is obviously intended to punish Big Five hunters. It is not aimed at goods, but at the people transporting them.
We also argued that Delta's ban violates a section of the federal aviation law that prohibits "unreasonable discrimination against persons, places, ports, and types of traffic in foreign air transportation." The district court dismissed on the grounds a private plaintiff cannot enforce this section. But we pointed out that numerous courts had allowed private plaintiffs to enforce this section between 1956 and 1978. It was removed in the 1978 Airline Deregulation Act, but Delta conceded this section was added back and reincorporated in a 1994 law "codifying" the transportation law, "without substantive change." In so doing, Congress explicitly stated its intent not to change prior judicial interpretations of this provision, which recognized the right of private plaintiffs to sue. Therefore, plaintiffs should have an action against Delta under this section.
We very briefly argued that the district court read our tortious interference claim too narrowly. Delta's announcement of the embargo went further, and also implied a problem with the legality of hunting trophies. That implication was not related to Delta's "services," but to plaintiffs' interests in lawful hunting. At the least, we pointed out that the district court should have permitted an amendment to our complaint to make this allegation clearer.
The judges questioned me extensively. Among other things, they were concerned that Conservation Force and Corey Knowlton had filed an administrative complaint against Delta with the Secretary of Transportation under the statutory non-discrimination provision. Nothing has happened with that complaint-no action has been taken by the Secretary's office. We also pointed out that the federal statute allowing an administrative complaint had existed when courts had allowed private plaintiffs to enforce the statutory non-discrimination provision. The cases did not require exhaustion of administrative remedies or impose any barrier to bringing a private claim. Therefore, the plaintiffs should be allowed to proceed in both their civil and administrative actions.
The judges also asked about the common-law duty of non-discrimination. We were advocating for a broader interpretation than the district court had found, and apparently, broader than the circuit court wants to go. Essentially, we argued that the common law requires Delta to carry cargo and not to change its services except with good reason because Delta stands in a special relationship with the public. The district court allows Delta to change its services whenever and however it wants. One judge specifically stated he believed Delta could make a business decision to alter its services however. Although we pointed out cases to the contrary, the judge did not seem amenable to enforcing the broad common-law duty.
That was our general feeling after the argument. The court did not seem particularly open to requiring common carriers to act within their broad common-law duty of non-discrimination. We cited numerous cases to support our position that the common law only allowed carriers to change their services in certain circumstances. However, the court seemed more likely to conclude Delta could make a "business decision," even one motivated by a desire to cater to anti-hunting sentiment expressed on social media, and stop carrying Big Five trophies whenever it wished. The court did not seem open to requiring Delta to provide an operational justification for the change in services, even though there were cases on this point.
We hope the Fifth Circuit will at least require the district court to allow the plaintiffs to amend our complaint. We could try to plead a bad-faith motivation by Delta and discrimination very specifically against Big Five shippers, and we could definitely re-plead our second (tortious interference) claim.
But here is the bottom line. Conservation Force and our partners have done our best to hold Delta to its duties. We have invested days on days in the research and presentation of our claim. Our argument is sound and backed up by common-law cases. Although the common law limited a carrier's ability to make a "business decision" in bad faith or without a reasonable basis, courts seem to wish to allow an air carrier to do as it chooses. The courts have not displayed a willingness to embrace the broad common-law requirement. This may be because air carriers were extensively "de-regulated" in the late 1970s, and have had something of a favored status among carriers. The duties on airlines have been lesser than those on railroads and motor carriers. (Delta claims that "deregulation" included a protective regulation exempting airlines from the common law duty not to discriminate.)
Now is the time for Congress to act.
If the courts are not willing to uphold the ancient common law of a strict duty of non-discrimination, Congress must make the law modern. It must enact a statute to hold air carriers accountable. It must put air carriers in a position where they are required to treat the public fairly. They cannot be allowed to be swayed by changes in public opinion.
Congress must also make much clearer its intent to give injured plaintiffs a federal statutory right to challenge discriminatory practices. This law was clear before deregulation in the late 1970s, but time and de-regulation altered the strength of the precedent. In a few sentences, Congress can keep air carriers honest by not allowing them to discriminate, and giving private plaintiffs the unquestionable right to sue.
As we argued in the Fifth Circuit, shippers and passengers are now essentially in a dependent relationship with the airlines. We are used to being able to send things wherever we wish, or to go wherever we wish. The world has shrunk as our options have expanded. But when an airline is permitted to cut off an option suddenly, for no good reason except a shipper is currently disfavored, shippers are being left with no remedy. They have few options. Even though air carriers have a monopoly over the sky-and entry costs are prohibitive for competitors-air carriers would be allowed to dictate public morality. Facebook activists will have won the day. As we pointed out to the court, there is a real danger in allowing an airline to change the scope of its services based on whatever is "trending" on social media.
This would not be the case for a railroad or truck carrier, which are more extensively regulated. It is time for Congress to cut back Delta's and other airlines' favored statuses. They should be made to treat the public fairly, no matter what. If a US state enacted a ban like Delta's obstructing federally issued "enhancement" based import permits it would be prohibited under the ESA's preemption clause. Delta and other carriers should not be permitted to substitute their judgment for Congress'. Protective regulations that unwittingly enable airlines to knowingly discriminate against foreign countries' conservation programs and USFWS issued findings and import permits without recourse need to be reformed.
Perhaps most importantly, the Fifth Circuit did not seem interested in our main point. The conservation system of southern Africa is at risk from Delta's ban. The courts are allowing Delta to counteract the public policy made clear in the ESA and the Convention on International Trade in Endangered Species. International trade in hunting trophies is favored under these laws. The benefits of licensed, regulated hunting have been repeatedly recognized by the FWS, and "enhancement" has been repeatedly found. Bans like Delta's obstruct this enhancement.
As we successfully argued in the New Jersey litigation, a state cannot substitute its judgment for the FWS'. But Delta, an airline with no knowledge of listed species, is being allowed to do this! It is being allowed to ban the transport of lawfully hunted and enhancement-permitted species. We hope Congress will rectify this inconsistency as soon as possible, and hold Delta accountable and within the policy of the ESA.