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Air Transport Association of America, et al v. Export-Import Bank of the United States

July 18, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


The Export-Import Bank of the United States has long been in the business of issuing loan guarantees to support foreign airlines' purchases of aircraft from domestic manufacturers. While the Bank's involvement in the air-travel industry undoubtedly serves the interests of U.S. aircraft manufactures, those interests do not necessarily align with the interests of U.S. airlines and their employees. The manufacturers appreciate the help in selling their planes to foreign buyers, but the airlines resent the boost this provides to their competitors. When in 2011 the Bank approved a series of guarantees to support Air India's purchase of planes from Boeing, organizations representing some of those domestic airlines and their employees brought this suit. These Plaintiffs claim that the manner in which the Bank processes loan-guarantee applications from foreign airlines is inconsistent with its obligations under the Export-Import Bank Act. In particular, they maintain that the Bank violated both the Bank Act and the Administrative Procedure Act when it approved the 2011 Air India guarantees.

Back in January, the Court rejected Plaintiffs' Motion for Preliminary Injunction because they had failed to demonstrate that they would suffer irreparable harm during the pendency of this suit. Both sides have now filed dispositive motions. In resolving them, the Court must tackle important and difficult questions about constitutional standing, the role of the courts vis-avis the Export-Import Bank, and the nature of the Bank's obligations under the Bank Act. In the end, it finds that Plaintiffs have established standing and that the Bank's loan-guarantee determinations are, at least in a limited sense, subject to judicial review. But after winning these battles, Plaintiffs lose the war. When all is said and done, the Bank's decision to approve the Air India Commitments was neither arbitrary and capricious nor contrary to law. Summary judgment will thus be entered in Defendants' favor.



The Export-Import Bank of the United States is an independent federal agency and corporation that has its origins in a 1934 Executive Order issued by then-President Franklin Roosevelt. See Exec. Order No. 6581 (Feb. 2, 1934). The Bank assumed its current form with the passage of the Export-Import Bank Act of 1945 (Bank Act), ch. 341, 59 Stat. 526, which, as amended and codified at 12 U.S.C. § 635 et seq., remains the Bank's governing charter. That statute provides that "[t]he objects and purposes of the Bank shall be to aid in financing and to facilitate exports of goods and services, imports, and the exchange of commodities and services between the United States . . . and any foreign country . . . , and in so doing to contribute to the employment of United States workers." 12 U.S.C. § 635(a)(1). Consistent with these goals, the Bank is empowered "to provide guarantees, insurance, and extensions of credit." Id. § 635(b)(1)(A). Loans and guarantees issued by the Bank carry the full faith and credit of the United States government. Id. § 635k.

In order to carry out its business, the Bank is required to maintain a Board of Directors, which must consist of the Bank's President, its Vice President, and three additional persons. See id. § 635a(c). A company seeking Bank financing may apply to the Board for approval of either a preliminary or a final commitment. See Defs.' Mot., Exh. H (Third Decl. of Robert Morin), ¶¶ 26, 29. If a majority of the Board's members so votes, an application for a preliminary commitment is approved. See Bylaws of the Export-Import Bank of the United States, art. I, § 5 (effective Aug. 20, 1998), available at Obtaining a preliminary commitment allows a company to engage in long-term planning, and preliminary commitments may be converted into final commitments by another majority vote of the Board. Third Morin Decl., ¶¶ 31, 33. New commitments of more than $100 million require an additional step: they can be finalized only after Congress has been given the opportunity to review and comment on the transaction. 12 U.S.C. § 635(b)(3); see also Third Morin Decl., ¶ 34.

In deciding whether to approve an application for a financial commitment, the Board must consider both the financial wisdom of the loan or guarantee, as well as its impact on U.S. industry and employment. See generally 12 U.S.C. § 635 et seq. For example, the statute provides that the Bank shall only make loans that, "in the judgment of the Board of Directors, offer reasonable assurance of repayment." Id. § 635(b)(1)(B); see also id. § 635j(a). And, more relevant to the instant dispute, it specifies that the Bank must "take into account any serious adverse effect of such loan or guarantee on the competitive position of United States industry . . . and employment . . . and shall give particular emphasis to the objective of strengthening the competitive position of United States exporters and thereby of expanding total United States exports." Id. § 635(b)(1)(B).

These are not the only limitations the Bank Act places on the Bank's operations, nor are they the only provisions at issue in this suit. In analyzing Plaintiffs' claims the Court will individually discuss each portion of the statute on which those claims rely, but, at this juncture, it is sufficient to say that various provisions of the statute require the Bank to consider the ways in which its transactions affect domestic industry and employment.

The Bank's "means for complying with these statutory obligations are its 'Economic Impact Procedures'" (EIPs). ATA & Delta's Am. Compl., ¶ 64; ALPA's Compl., ¶ 60; see Export-Import Bank of the United States Economic Impact Procedures (Apr. 2007), available at The EIPs are comprised of a series of five "screens" that aim to identify the "potential economic impact" of prospective commitments. See EIPs at 1; ATA & Delta's Am. Compl., ¶ 65; ALPA's Compl., ¶ 61. The "Ex-Im Bank reviews all transactions it receives" for such impact by applying these screens. EIPs at 1. Only those transactions that are not exempted by any of the five screens are put "through a more extensive process" to further explore their potential economic impact. Id. In other words, if a transaction is exempted by a screen, it need not undergo further economic-impact scrutiny. See id. At issue in this case is the first of those screens, which qualifies a transaction for further scrutiny only "if the exports involved in [that] transaction will result in the production of an exportable good." Id. It was the application of this screen that exempted the Air India Commitments and led to Plaintiffs' claim of injury.


Loans and loan guarantees that support domestic aircraft manufacturing comprise a substantial portion of the Bank's transactions. See ATA & Delta's Am. Compl., ¶ 29; ALPA's Compl., ¶ 28. Such guarantees allow foreign airlines to obtain credit at lower interest rates, which in turn provides them with an incentive to purchase American planes instead of planes manufactured abroad. See ATA & Delta's Am. Compl., ¶¶ 25, 53-54; ALPA's Compl., ¶¶ 24, 51-52. This benefits American manufacturers by providing additional buyers for their wares. To give a sense of the scale of the Bank's involvement in financing foreign airlines' purchase of domestic aircraft, between 2005 and 2010 the Bank "financed or guaranteed the financing for purchases by foreign airlines of 634 aircraft, adding up to more than $34.5 billion." ATA & Delta's Am. Compl., ¶ 29; ALPA's Compl., ¶ 28.

Plaintiffs contend that these transactions have caused them competitive injury. See ATA & Delta's Am. Compl., ¶¶ 52-61, 77-101; ALPA's Compl., ¶¶ 50-58, 73-97. As direct competitors of Air India, ATA's members, including Delta, claim that the benefits the Bank's practices have conferred on foreign airlines have put them at a competitive disadvantage and caused them direct financial harm. See ATA & Delta's Am. Compl., ¶¶ 52-61, 77-101. The financial injuries incurred by the airlines, furthermore, have also been felt by the airlines' employees, including the pilots that the Air Line Pilots Association (ALPA) represents. See ATA & Delta's Am. Compl., ¶¶ 67-76; ALPA's Compl., ¶¶ 64-72. Plaintiffs contend that "[t]he Ex-Im Bank's subsidies to foreign carriers have forced U.S. airlines to cut between 4,100 and 7,500 jobs." ATA & Delta's Am. Compl., ¶ 69; see ALPA's Compl., ¶ 66.

At particular issue in this suit are $3.4 billion in preliminary and final commitments approved by the Board on September 30, 2011. See ATA & Delta's First Am. Compl., ¶ 30; Administrative Record (A.R.) at 29-30. The $1.3 billion in final commitments were conversions of preliminary commitments originally approved in 2006 and intended to support Air India's purchase of Boeing 787 aircraft. See A.R. at 31. The remaining $2.1 billion in preliminary commitments will support the airline's acquisition of Boeing 787 and 777-300ER planes. See id. These are "widebody," "medium-sized aircraft (200 to 300 seats) with a range (7,500 nautical miles to 8,500 nautical miles) that previously has only been available with much larger aircraft." Id. at 67.


Plaintiff ATA is a trade organization, headquartered in Washington, D.C., that represents United States airlines. See ATA & Delta's First Am. Compl., ¶ 11. ATA's members include AirTran Airways; Alaska Airlines, Inc.; ASTAR Air Cargo, Inc.; Delta Air Lines, Inc.; Evergreen International Airlines, Inc.; Hawaiian Airlines; JetBlue Airways Corp.; Southwest Airlines Co.; U.S. Airways, Inc.; United Air Lines, Inc.; Continental Airlines, Inc.; American Airlines, Inc.; Atlas Air, Inc.; Federal Express Corp.; and United Parcel Service Co. Id., ¶ 11 n.*. ATA "work[s] with its members in legal, political, and regulatory arenas to foster a business and regulatory environment that promotes a safe, secure, and financially successful U.S. airline industry." Id., ¶ 11.

ATA filed its Complaint on behalf of nine of its member airlines. See id., ¶ 11 n.*. Six of those members, United, Continental, American, Atlas Air, FedEx, and United Parcel Service, declined to join the suit. Id. One of those members, Delta, joined the Complaint as an individual Plaintiff. "Delta is a domestic air carrier" that "competes with Air India for passengers traveling to and from international destinations." Id., ¶ 12.

Plaintiff-Intervenor ALPA is an unincorporated labor organization, also based in Washington, D.C., that represents "approximately 47,000 pilots employed by 28 United States commercial airlines." ALPA's Compl., ¶ 11. ALPA's members include pilots that work for airlines that provide "significant international services[,] . . . including Alaska, Continental, Delta, FedEx, Hawaiian, and United." Id. ALPA's Complaint is nearly identical to that filed by ATA and Delta.

Both Complaints charge the Bank and senior Bank officials with violating the APA by acting arbitrarily and capriciously and violating various provisions of the Bank Act.*fn1 Plaintiffs' claims fall generally into three categories. First, Plaintiffs allege that Defendants violated 12 U.S.C. §§ 635(b)(1)(B) and 635a-2 by "approving the Air India Commitments without considering the extent to which they are likely to have an adverse effect on the domestic airline industry" and on "domestic employment." ATA & Delta's Am. Compl., ¶ 103; ALPA's Compl.,

¶ 99. Second, they contend that the Bank violated § 635(e)(1) when it "approved the Air India Commitments without considering whether they cause a substantial injury to the domestic airline industry." ATA & Delta's Am. Compl., ¶ 109; see ALPA's Compl., ¶ 105. Third, Plaintiffs claim that the Bank violated § 635(e)(7) by approving the Air India Commitments "without providing notice, soliciting comment, and providing a reasoned explanation for its decision." ATA & Delta's Am. Compl., ¶ 112; ALPA's Compl., ¶ 108. Plaintiffs argue both that these violations occurred with respect to the Air India Commitments specifically and that the Bank's policies regarding foreign-airline transactions generally conflict with the Bank Act and the APA.

Along with their initial Complaint, ATA and Delta filed a Motion for Temporary Restraining Order and Motion for Preliminary Injunction, both of which claimed that expeditious relief was required due to the impending delivery of aircraft from Boeing to Air India. See Mot. for TRO & PI at 3. On November 16, 2011, Chief Judge Royce Lamberth denied the Motion for TRO because, "[i]n absence of the administrative record relied upon by the defendant Export-Import Bank in approving the loan guarantees at issue, the Court cannot satisfy itself that plaintiff has shown a [sufficient] likelihood of success of the merits." Air Transp. Assoc. of America, Inc. v. Export-Import Bank of the United States, No. 11-2024 (D.D.C. Nov. 16, 2011)

(order denying temporary restraining order). Chief Judge Lamberth ordered Defendants to file the administrative record with the Court, id., and Defendants did so on November 29, 2011.

Following briefing and a hearing, this Court denied Plaintiffs' Motion for Preliminary Injunction on January 13, 2012, primarily on the ground that Plaintiffs had failed to "demonstrate[ ] a likelihood that they will suffer irreparable harm during the pendency of the lawsuit in the absence of an injunction." See Air Transp. Assoc. of America, Inc. v. Export-Import Bank of the United States., --- F. Supp. 2d ---, 2012 WL 119557, at *1 (D.D.C. Jan. 13, 2012). Plaintiffs have now filed Motions for Summary Judgment, and Defendants have filed a Motion to Dismiss or for Summary Judgment. It is to the resolution of these Motions that the Court now turns.

II.Legal Standard

Whereas Plaintiffs' Motions are for summary judgment only, Defendants' Motion seeks both dismissal and, in the alternative, summary judgment. Taken together, the three motions are brought pursuant to three different Federal Rules of Civil Procedure and thus implicate three distinct standards of review. Defendants' argument that Plaintiffs lack standing will be adjudicated under the standard applicable to Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction. Defendants' argument that Plaintiffs' claims are not justiciable under the APA's "committed to agency discretion" exception, conversely, will be resolved in accordance with Rule 12(b)(6). Finally, both parties' seek summary judgment on the merits, which will be adjudicated consistent with the summary-judgment and APA standards enumerated in Part II.B, infra.


In evaluating Defendants' Motion to Dismiss, the Court must "treat the [C]omplaint[s'] factual allegations as true . . . and must grant [P]laintiff[s] 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). This standard governs the Court's considerations of Defendants' Motion under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader"); Walker v. Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks omitted).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint "fail[s] to state a claim upon which relief can be granted." Although the notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). Plaintiffs must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though Plaintiffs may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 565 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in their Complaints "must be enough to raise a right to relief above the speculative level." Id. at 555.

To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear the burden of proving that the Court has subject-matter jurisdiction to hear their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). "For this reason 'the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005) ("given the present posture of this case -- a dismissal under Rule 12(b)(1) on ripeness grounds -- the court may consider materials outside the pleadings"); Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).


Summary judgment may be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895.

Although styled as Motions for Summary Judgment, the pleadings in this case more accurately seek the Court's review of an administrative decision. The standard set forth in Rule 56(c), therefore, does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7 (D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on other grounds, 967 F. Supp. 6 (D.D.C. 1997)). "[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club, 459 F. Supp. 2d at 90 (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)) (internal quotation marks omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. SeeRichards v. INS, 554 F.2d 1173, 1177 (D.C. Cir. 1977), cited inBloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003). The Administrative Procedure Act "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is a "narrow" standard of review as courts defer to the agency's expertise. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (internal quotation omitted). The reviewing court "is not to substitute its judgment for that of the agency," id., and thus "may not supply a reasoned basis for the agency's action that the agency itself has not given." Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974). Nevertheless, a decision that is not fully explained may be upheld "if the agency's path may reasonably be discerned." Id. at 286.


Plaintiffs claim that the Ex-Im Bank and its officers violated various provisions of the Bank Act and, by extension, the APA when they approved the 2011 Commitments to Air India. But Defendants correctly point out that before the Court can reach the merits of Plaintiffs' claims, it must first ensure that it has jurisdiction to decide them. See, e.g., Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) ("[E]very federal court has a 'special obligation to satisfy itself' of its own jurisdiction before addressing the merits of any dispute.") (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). The Court's analysis will thus begin with the question of Plaintiffs' standing, which the Court has previously recognized raises "serious questions." ATA, 2012 WL 119557, at *1. Ultimately concluding that Plaintiffs do have constitutional and prudential standing to pursue their claims, the Court will next address another potential obstacle to its review of the merits: Defendants' contention that the Bank's loan-guarantee determinations are "committed to agency discretion," 5 U.S.C. § 701(a)(2), and thus not subject to judicial review. Again, it finds that Plaintiffs have the better of the argument. While the Court's role in reviewing the Bank's decision is undoubtedly limited, loan-guarantee determinations are not entirely committed to the Bank's discretion, and the Court thus has some part to play in ensuring the Bank abides by the limitations that Congress has set forth. Having cleared away those significant threshold questions, the Court will then reach the merits of Plaintiffs' allegations. In the end, it determines that the Bank acted neither arbitrarily and capriciously nor contrary to its governing statute when it approved the 2011 Commitments to Air India.


Article III of the Constitution limits the power of the federal judiciary to the resolution of "Cases" and "Controversies." U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750 (1984) (discussing the case-or-controversy requirement). "This limitation is no mere formality: it 'defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.'" Dominguez, 666 F.3d at 1361 (quoting Allen, 468 U.S. at 750). Because "standing is an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), finding that a plaintiff has standing is a necessary "predicate to any exercise of [the Court's] jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).

"Every plaintiff in federal court," consequently, "bears the burden of establishing the three elements that make up the 'irreducible constitutional minimum' of Article III standing: injury-in-fact, causation, and redressability." Dominguez, 666 F.3d at 1362 (quoting Lujan, 504 U.S. at 560-61). Taken together, these elements require a plaintiff to demonstrate the existence of a "personal injury fairly traceable to the [opposing party's] allegedly unlawful conduct and likely to be redressed by the requested relief." Allen, 468 U.S. at 751. In addition to the constitutionally derived test for standing, Plaintiffs must also satisfy "the judicially created zone- of-interests test for standing." Patchak v. Salazar, 632 F.3d 702, 704 (D.C. Cir. 2011). This latter test, which was originally characterized as a "gloss" on § 702 of the Administrative Procedure Act, see Clarke v. Secs. Indus. Ass'n, 479 U.S. 388, 395-96 (1987) (interpreting 5 U.S.C § 702), requires a plaintiff to demonstrate that its suit seeks to protect an interest that is "arguably within the zone of interests to be protected" by the relevant statutory provisions. See Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 492 (1998) (quoting Assoc. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)) (emphasis in original).

All three Plaintiffs -- ATA, Delta, and ALPA -- bring substantively identical claims in nearly identical language. Compare ATA & Delta's First Am. Compl., ¶¶ 102-25, with ALPA's Compl., ¶¶ 98-121. Where multiple plaintiffs bring the same claims, the Court need only ensure that one of those plaintiffs has standing to pursue them. See Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) ("[I]f constitutional and prudential standing can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim."). Because Delta is one of ATA's members and any injury accruing to ALPA's pilots derives from the airlines' injury, ATA is best positioned to demonstrate standing. If any of these Plaintiffs have standing, in other words, it will be ATA.

As an association, ATA has standing to challenge the Ex-Im Bank's decision if three conditions are met: 1) at least one of its members would have standing to sue; 2) the interests the organization seeks to protect are germane to its purpose; and 3) neither the claim nor the requested relief requires its individual members' participation. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977); United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 552-55 (1996). It is undisputed that ATA satisfies the second and third elements of this test. As "the principal trade association representing scheduled airlines in the United States," "ATA's purposes include working with its members in legal, political, and regulatory arenas to foster a business and regulatory environment that promotes a safe, secure, and financially successful U.S. airline industry." ATA & Delta's First. Am. Compl., ¶ 11. Because this suit is brought to protect domestic airlines' financial interests, it clearly implicates interests germane to ATA's purpose. And as ATA's claims concern the interests of domestic airlines generally and declaratory and injunctive relief -- not money damages -- are the remedies sought, see id. at 26-27, the Court conceives of no reason why the participation of ATA's individual members should be required. Cf. Warth v. Seldin, 422 U.S. 490, 515-16 (1975) (where association seeks "prospective relief," courts assume remedy "will inure to the benefit of those members . . . actually injured," and, accordingly, individual participation not required).

The first prong -- whether ATA's members would have standing to sue in their own right -- is thus all that remains. To proceed, then, ATA must demonstrate that at least one of its members would satisfy both the constitutional and the prudential tests for standing, see, e.g., Util. Air Regulatory Group v. EPA, 320 F.3d 272, 277 (D.C. Cir. 2003), and the Court will address these two sets of requirements separately. Although "standing . . . is ordinarily substantially more difficult to establish" where, as here, "the plaintiff is not himself the object of the government action . . . he challenges, Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009) (quoting Lujan, 504 U.S. at 562) (internal quotation marks omitted), the Court ultimately concludes that ATA has constitutional and prudential standing to challenge the Ex-Im Bank's 2011 Commitments to Air India.

1. Constitutional Standing

To repeat, to establish constitutional standing ATA's members must satisfy three requirements: injury in fact, causation, and redressability. The ...

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