Delta Airlines Wins Shipping Ban of Big Five Trophies: Appellate Court Holds No Private Cause of Action


Last June, Judge Barbara Lynn of the United States District Court for the Northern District of Texas dismissed a lawsuit filed by a group of hunting and conservation organizations. Conservation Force v. Delta Air Lines, Inc., 190 F. Supp. 3d 606, 608 (N.D. Tex. 2016). The groups sued Delta over Delta’s announcement that it would ban the shipment of lion, leopard, elephant, rhinoceros and buffalo trophies, known as “Big Five” trophies. The group argued that Delta’s actions were discriminatory and that Delta’s actions violated federal common law and state tort law. On March 20, 2017, the Fifth Circuit affirmed the trial court’s dismissal.

The trial court ruled that plaintiffs could not pursue a private cause of action under 49 U.S.C. § 41310(a), which prohibits air carriers from engaging in unreasonable discrimination in foreign air transportation. The trial court, after applying the framework articulated by the United States Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), held that there was no private right of action under the statute.

On March 20, 2017, the Fifth Circuit affirmed the trial court’s determination that there is no implied right of action under 49 U.S.C. 41310(a).

This ruling impacts air carriers as the Fifth Circuit had previously implied causes of action other under other federal aviation statutes—such as the Air Carrier Access Act. Shinault v. Am. Airlines, 936 F.2d 796 (5th Cir. 1991). Decisions rendered before Sandoval frequently implied private rights of action without rigorous analysis. Shinault was one of the decisions rendered before Sandoval. It appears that in light of the Fifth Circuit’s affirmance in Conservation Force, that Shinault may no longer be good law. This will likely lead to the dismissal of lawsuits filed against air carriers seeking to enforce federal aviation statutes, where Congress did not expressly provide for a private right of action.
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