Air Line Pilots Association, International v. United States Department of Transportation, Eastern Air Lines, Inc., Intervenor

Citations: 899 F.2d 1230; 283 U.S. App. D.C. 245; 1990 U.S. App. LEXIS 4671; 1990 WL 34674Docket: 89-1254

Court: Court of Appeals for the D.C. Circuit; March 30, 1990; Federal Appellate Court

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The Air Line Pilots Association (ALPA) challenged a decision by the Department of Transportation (DOT) regarding the recusal of Secretary James Burnley in a matter involving Eastern Air Lines, a client of Burnley's potential employer, Shaw Pittman. Although Shaw Pittman represented Eastern in other matters, it was not involved in the specific petition at issue. The DOT conducted a preliminary investigation into Texas Air Corporation's fitness, concluding that Eastern met the requirements. Following Eastern's sale of its Air Shuttle to Donald Trump, ALPA requested a new investigation, arguing that the previous one overlooked significant financial issues, but the DOT denied this petition. After Secretary Burnley left to join Shaw Pittman, ALPA sought reconsideration of the denial, claiming potential bias. The new Secretary, Samuel Skinner, affirmed Burnley's compliance with ethics regulations and denied the reconsideration request. The Court of Appeals upheld the DOT's decisions, finding no legal grounds to challenge Burnley's involvement.

Burnley's involvement in the decision is challenged by ALPA as a violation of the federal conflict-of-interest statute, 18 U.S.C. Sec. 208, which prohibits government employees from participating in proceedings where they have a financial interest. The Department of Transportation (DOT) regulations align with this statute. The document asserts that while criminal provisions like Sec. 208 can guide judicial review in non-criminal contexts, there is no precedent indicating ethics violations in situations as tenuous as this one. A similar case referenced involved a direct conflict due to a government representative's dual role, which is not comparable to Burnley's situation.

The Office of Government Ethics clarifies that a financial interest exists only if there is a real possibility of gain or loss, not mere speculation. The DOT Secretary determined that ALPA's claims regarding Burnley's potential conflict were unfounded, deeming them speculative. The DOT established a clear rule that Burnley could participate in matters where his prospective employer was not actively involved, contrasting with ALPA's more stringent requirement that would restrict government officials from negotiating with law firms before leaving office.

Furthermore, DOT regulations aimed at preventing conflicts of interest do not necessitate automatic recusal, and such decisions made by an administrator are subject to abuse of discretion review. Ultimately, Burnley's participation did not constitute an abuse of discretion according to Secretary Skinner's prior assessments.

ALPA argues, for the first time on appeal, that Burnley violated the judicial disqualification standards outlined in 28 U.S.C. Sec. 455, which are applicable to DOT officials through a Department regulation. The court, however, should not consider this argument as it was not presented in ALPA's petition for reconsideration to the agency, pursuant to 49 U.S.C. Sec. 1486(e). Additionally, it is unclear whether the DOT regulation governs Burnley's decision-making regarding an investigation into Eastern or how it relates to the recusal statute's substantive content. 

ALPA has not established sufficient grounds to modify the challenged Department orders, leading to the denial of the petition for review. The investigation referenced is mandated under 49 U.S.C. app. Sec. 1371(r), which requires certificated air carriers to maintain their fitness to provide transportation services. Although DOT suggests the petition is moot due to developments since December 1988, the court does not find it moot, as these events may impact the investigation into Eastern's fitness. If DOT Order 88-12-30 were vacated, ALPA could submit a revised petition addressing events post-December 1988. The relevant regulation emphasizes that DOT employees conducting quasi-judicial functions should adhere to standards of propriety akin to those expected of courts and their staff.