American Airlines To Libertad Act Plaintiff- Reference To Supreme Court Case Is Correct, But Plaintiff Wrong On Who It Helps

ROBERT M. GLEN V. AMERICAN AIRLINES, INC., [1:19-cv-23994 Southern Florida District; 4:20-cv-00482-A Transferred To Northern Texas District; 5th Circuit Court of Appeals 20-10903]

Reid Collins & Tsai (plaintiff)
Ewusiak Law, P.A. (plaintiff)
Jones Day (defendant)
Kelly Hart & Hallman LLP (defendant)

Link To: Response to Plaintiff-Appellant’s Rule 28(j) Letter in Glen v. American Airlines, Inc., No. 20-10903, notifying the Court of TransUnion LLC v. Ramirez, No. 20-297 (U.S. June 25, 2021) (“Op.”) (7/1/21)

ORAL ARGUMENT HEARD before Judges King, Dennis, Ho. Arguing Person Information Updated for: Craig Boneau arguing for Appellant Robert M. Glen; Arguing Person Information Updated for: Benjamin C. Mizer arguing for Appellee Incorporated American Airlines [20-10903] (SME) [Entered: 07/07/2021 12:02 PM] [Transcript Not Yet Available; Audio Available]

Excerpts From Response:

Appellant is right that the Supreme Court’s recent decision in TransUnion LLC v. Ramirez, No. 20-297, is directly on point, but he is wrong about which party it helps. The Supreme Court’s opinion confirms that Congress “may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.” Op. at 10 (citation omitted). Appellant is not harmed by American Airlines’ alleged trafficking because he has no property interest in the underlying properties. As American has explained, the properties were appropriated (1) in Cuba (2) by the Cuban government (3) from Cuban nationals. Appellee’s Br. 17. In other words, the seizures were entirely foreign to the United States and domestic to Cuba. The Helms-Burton Act (“HBA”) does not purport to invalidate or otherwise reach those prior appropriations, and Appellant has no legally protected property interest in the underlying properties. See id. And without a concrete injury to an underlying property interest, Appellant has no standing under TransUnion to invoke the HBA’s trafficking cause of action.

Appellant tries to get around this fundamental defect by arguing that the HBA creates a statutory claim analogous to a common law suit for trespass or unjust enrichment. But the common law has never recognized an injury for trespassing on or unjustly benefitting from a third party’s property, and Congress did not purport to provide such a remedy. But even assuming Congress did, TransUnion makes clear that “Congress’s say-so” does not suffice to “treat an injury as concrete for Article III purposes.” Op. at 11 (cleaned up).

Finally, Appellant now concedes that he “does not allege a claim based solely on a technical statutory violation of the Act by American Airlines.” Appellant’s 28(j) Ltr. at 2. This concession defeats his earlier argument that American’s alleged “violation of the Act on its own confers standing.” Appellant’s Br. 23.