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Delta Air Lines, Inc. v. Export-Import Bank

United States District Court, D. Columbia.

March 30, 2015

DELTA AIR LINES, INC., et al., Plaintiffs,
v.
EXPORT-IMPORT BANK OF THE, UNITED STATES, et al., Defendants

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For DELTA AIR LINES, INC., Plaintiff: Gregory Gerber Rapawy, REED SMITH LLP, New York, NY; Wan J. Kim, Michael K. Kellogg, KELLOGG, HUBER, HANSEN, TODD & EVANS, FIGEL P.L.L.C., Washington, DC.

For HAWAIIAN AIRLINES, INC., Plaintiff: Jonathan Booth Hill, LEAD ATTORNEY, COOLEY, LLP, Washington, DC; Michael K. Kellogg, KELLOGG, HUBER, HANSEN, TODD & EVANS, FIGEL P.L.L.C., Washington, DC.

For AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Plaintiff: Robert Russell Bailey, LEAD ATTORNEY, AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Washington, DC; David Michael Semanchik, AIR LINE PILOTS ASSOCIATION, INT'L, Herndon, VA; Jonathan Asher Cohen, AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Legal Department, Washington, DC; Michael K. Kellogg, KELLOGG, HUBER, HANSEN, TODD & EVANS, FIGEL P.L.L.C., Washington, DC.

For EXPORT-IMPORT BANK OF THE UNITED STATES, FRED P. HOCHBERG, WANDA FELTON, SEAN MULVANEY, PATRICIA M. LOUI, In her official capacity as member of the Board of Directors of Export-Import Bank of the United States, LARRY WALTHER, In his official capacity as member of the Board of Directors of Export-Import Bank of the United States, Defendants: Jean Lin, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Adam Anderson Grogg, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Joseph Charles Folio, III, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

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Re Document Nos.: 14, 43, 44, 50

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge.

I. INTRODUCTION

The Export-Import Bank (" Ex-Im Bank" or " Bank" ) is an independent agency established in 1934 as the official export credit agency (" ECA" ) of the United States to promote and facilitate U.S. exports by providing loans and loan guarantees to foreign purchasers of U.S.-manufactured goods and services. The U.S. aircraft manufacturing industry is one of many domestic industries that rely on Ex-Im Bank support to compete with foreign manufacturers that receive similar support from foreign ECAs. But while U.S. aircraft manufacturers enjoy the benefits of the Ex-Im Bank's assistance in selling their planes to foreign airline purchasers, U.S. commercial airlines, which are not

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eligible for financing from the Bank, object to the boost that the Bank's support provides to overseas competitors.

Delta Air Lines, Inc. (" Delta" ), Hawaiian Airlines, Inc. (" Hawaiian" ), and the Air Line Pilots Association, International (" ALPA" ) (collectively, " Plaintiffs" ) are among those that protest the Ex-Im Bank's support of foreign aircraft purchasers. Together, Plaintiffs have embarked on a multipronged litigation attack against the Ex-Im Bank and its Board of Directors (collectively, " Defendants" ), in wh ich they maintain, among other things, that the Bank has violated the Export-Import Bank Act of 1945 (" Bank Act" or " Charter" ) and the Administrative Procedure Act (" APA" ) through the adoption and application of certain internal economic impact procedures (" EIPs" ), which the Bank uses to assess the economic effects of potential transactions within its broader process of determining whether to approve an application for Bank financing.

Specifically at issue in this action -- one of three separate lawsuits brought by Plaintiffs currently pending before this Court -- is Plaintiffs' challenge to the facial validity of the Ex-Im Bank's 2013 EIPs and Guidelines, which were adopted in November 2012 and became effective on April 1, 2013. The most recent EIPs include, for the first time, specific procedures for analyzing aircraft transactions, whereas prior versions of the EIPs included an " exportable goods screen" that categorically excluded from in-depth economic impact analysis any proposed transaction that would result in the foreign provision of exportable services, such as airline services, rather than the production of an exportable good.

Defendants have filed a motion to dismiss and a motion for summary judgment, and Plaintiffs have filed a motion for summary judgment. Together, these motions raise a variety of issues ranging from Plaintiffs' standing to the Bank's compliance with the Bank Act to the Bank's procedural obligations under the APA. In the end, however, the Court concludes that it must stop short of reaching the merits of Plaintiffs' facial challenge to the new EIPs for two reasons. First, Plaintiffs have not established an imminent injury-in-fact resulting from the Bank's mere adoption of the new guidelines, as is required for standing under Article III. Second, Plaintiffs' challenge is not ripe because the claims are unfit for judicial review, and in the meantime, Plaintiffs have not demonstrated that they will suffer any sufficient hardship while judicial ...


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