trophies it is about the a central role that hunting plays in the conservation systems of southern and eastern africa in the countries where the largest population is about well the delta airlines has to carry your cargo well your honor the endangered species act only allows for the import of hunting trophies when it has been shown that the underlying hunting enhanced is the survival of the species and the fish and wildlife service has repeatedly issue permit judgment because the reason i'm asking is if you simultaneously have a complaint in front of the f a a on this point why isn't there any exhaustion requirement in title forty nine you don't see that there is one because we haven't seen anything in the case law and that you honor and in point of fact the f a a hasn't done anything with respect to the twenty a j alerted us the has been routed properly and your footnote points out that they have to rule on that complaint so why are we proceeding in two tracks because the common law right still exists point as to whether there is even a private right of action here after sandoval so let me phrase that as a question is there any circuit that has found a private right action after sandoval district courts and any circuit court no circuit has considered as far as i can tell though your honor i'm at a point fact several circuits including this one implicitly and the second seventy ninth d c entered circuits directly found a private right of action under the predecessor to section four one three one zero a following a court versus actual alice's and despite the existence of provisions like the ability to bring a complaint before the secretary of transportation so the predecessor cases didn't have any difficulty if we get to the merits what's your best case that under federal common law the rule isn't just they can't withhold people but they can decide what they want to decide with cargo the secretary of transportation and nothing has happened because the reason it seems that they might be the right authority is that that provision does contemplate reasonable you can have unreasonable discrimination so they would be the ones that would say ok well a carrier can transport magazines but they might say not porn are graphic magazines or they might allow youth in asia drugs but not as used to humans because companies like delta are worried above all about negative publicity so it would seem to me arguably section four zero four b didn't have any difficulty in evaluating the reasonableness of the claim i'll direct you specifically the third circuit opinion and polanski where the court didn't imply a private right of action under section four four b because it didn't find that that missouri pacific case where ok we will will take time let what it was a timber we would take cotton but really the purpose was to exclude the mill they want to exclude people that's going to be unreasonable discrimination always i don't see a case that stands for it's unreasonable for a carrier to say we don't want to see so the lion's head in our plane because if the american public that loves lions sees that they'll all stop coming to delta that seems to be the business decision they made and why isn't that reasonable well your honor so there's a couple of issues with that first you're raising the common law cause of add on i'm focusing on the reasonableness term in the federal statute unless i'm misreading the carrier they've got to carry whatever cargo they don't want to carry i think you've got a better case under the federal statute which my instinct would mean should be in front of the regulatory agency in the first instance but that's how i'm thinking about this well so your honor just evaluating the reasonableness in general and looking at some of the common law precedent let me see if i can convince you there is a i know you should write a common carrier is permitted to hold itself out carry certain classes  compiling the law as it existed contemporaneously a common carrier may i change the scope of it services but in so doing the common law requires an act in good faith and have an operational reason to the heart case i pointed to the b j allen vs i c c case i point you to ocean city why isn't it good faith to say we don't want to see some of the line in our plane when the public finds out about it americans love these particular big species why isn't that good faith your honor we have real concerns with a common carrier being able to change the scope of it services based on what's trending in the social media i gave you an example of magazines fine we'll have magazines but we won't have pornography honor it's not really a common carriers a right to suddenly withdraw services it has offered unless it has a reason to do so again a common carrier is a public servant and as such it owes the public a duty it has entered into essentially a codependent relationship it's not a private carrier that has the ability to restrict what it offers you know with each transport the very purpose of a common carrier is it doesn't get to pick and choose it doesn't get to say we won't illegitimate reason it's not a legitimate reason it's not operational your honor in point of fact altos this was a lucrative market and so delta made a business reason that was getting rid of quite a large us selection of customers but if they just say fine if we're stuck with it we don't want to lose all our ticket sales to them no trophies your honour's again that action wouldn't be taken in good faith and they wouldn't have an operational reason delta holds itself out to carry pretty much everything it carries dangerous good it carries prescription drugs it carries live animals so it doesn't have the ability to suddenly withdraw this class of goods that is really no different from carrying leather coats and bombs and you honour's there is a purpose to that because well to give you a hypothetical our current president hotly discussed in the social media whether delta chose to support the president by banning the transport of goods by countries that spoke to companies excuse me that spoke out against him or to ban truck brand and goods delta suddenly dictating what can be shipped based on whether it agrees with their disagrees with a particular certainly there would be commercial incentives and the market would adjust which it has here but that doesn't change the common law common carrier posed a duty and that duty is to carry indiscriminately and it's  no company has to become a common carrier it company chooses to enter into that role and when it does then it takes on the obligations of equal treatment now you did you write this then it turns out snub no i happen to know this because i have a dog snub those dogs have more injuries on plates so then a lot of the airlines decided to no more snub nosed dogs they're taking all dogs then they decide not to the market adjust immediately and united steps in with an air conditioned pet cargoes they'll take this not those and they make a lot of money so so the key would be your statement good faith exactly right wouldn't that be the f a a to try to find out law and it wasn't changing it was adopting the judicial interpretations associated with it and delta can see it's that when congress reviews are in access statute it is presumed to know and adopt a motion to show interpretations so the up prior judicial interpretations under section four or four b were incorporated with section four hundred one zero and now there are different remedies available on and in the at the administrative claim there may be different remedies available to but we're proceeding under both tracks because as you noted there's a reasonable must standard in section one three one zero and again because this case is important with respect to the conservation outcomes we're you know perceiving to cover all our bases and now quickly turning to my last point the district court read the preemption provision of the airline deregulation acts for two broadly essentially it read it to apply to all reconsideration or reopening of a judgment or two per hour so the issue on appeal stand i'm just curious as to proceed to the smaller aren't thank you thank you the morning your honor is and may have placed cord delta has decided that it is not willing to carry big five hunting trophies as cargo and the reason we're here this morning is the plaintiffs want this court to tell delta that even though we don't want to carry those trophies we have to you you file the twenty a j notifying us about the fact that there's an investigation and a complaint why isn't delta urging that there's an exhaust your requirement you've looked at the law and it doesn't exist that's essentially that's correct as it g need for the court to do so because there's clearly good grounds to dismiss this case without seeing what the agency does first and then if they are ready while in the morning when exactly that's probably a better way to put it that the statutory remedy that the plaintiffs have pursued is not of exhaustion requirement it's an exclusive remedy the federal aviation act is very clear you can go to the department of transportation have an administrative proceeding take an appeal either to the d c circuit or to this circuit when that proceeding is resolved and there's no procedure for a follow on action or a parallel action in federal court that's the exclusive remedy that the statute provides which is very good evidence that the congress did not intend for a private right of action in the statute a federal court they've explicitly provided one remedy made a conscious choice not to provide a second room at the end of the statute and under the sand of on elsa's that's essentially conclusive on the question of whether they and that's a threshold question you think we have to reach the threshold whether or not our smith jurisprudence even with the interruption of sandoval allows us to hear this private right of action the court can dismiss the chief judge lynn dismissed on the basis that there's no private right of action the parties have that the plaintiffs in particular take a position this case that the common law claim is substantively coextensive with the statutory claims for all the reasons that the common that's right so i think that would weigh in favor of the you know decision in this matter and i think and i think a decision from this court would be of assistance to the department of transportation as it considers this they're going to sort of composing counsel throughout an intriguing  athetic a what if what if an airline says we transport per fume but not evoke a trunk person are i did not clear to me that would be a permissible policy and that gets to the basic nature of this common law duty of nondiscrimination which is it prohibits discrimination against people not things its customers not cargo so if an airline has singled out one customer one manufacturer of a perfume and says we're carrying everyone else's perfume but not yours it's not clear to me that that fits within the carrier's rights under the common law that you're singling out what's the best common the case that describes how we distinguish between a singled out item versus a class that's acceptable what's the best discussion of that that distinction between in that well what's the betting but i want to get back to what's the best case that helps me come up with a rule that applies to the future case from the circuit court the western district of arkansas has a very helpful explanation of the distinction between methods of transportation and cargo versus shippers and the missouri pacific case itself says there you had the railroad it singled out the mill company supreme court says you can't do that but the supreme court immediately goes on to say what you could do if you want to is change your policy you could stop accepting these special transport cars from anyone and if you did that they would have you have no problem under the common law so that speaks  to point they've made that you can't change things midstream that the supreme court has affirmatively said that you can and the it also speaks to that is the difference that as long as your policy applies to cargo the fact that its impact might fall on a handful of shippers doesn't make it an impermissible form of discrimination any cargo policy is going to impact only the people who want to ship that cargo the way the common law says as well to accept my premise that they made this decision precisely because they just it's a bottom line business decision that americans happen to love these species whether it's a rational set of species or not the delta customers like them and they would be upset at dealt is that what's basically going on that's of death they are formidably play to that in the complaint but yes ok we don't dispute the characterization is so it could even be completely built on the cecil lion incident right the carrier in its business judgment can change its cargo policies for whatever reason it sees fit and that's there are cases going back more than one hundred years that say that you can do this for selfish business reasons that if you think you're going to make more money doing it that's a good enough reason for you to make this change the notion that it can only be for operational necessity or safety or liability reasons the case law just doesn't support that  language that the cases use the eighteen hundreds was public whirls but it can't be for bad faith correct and that complaint does not plea to the opening brief did not argue that bad faith was a separate basis to reject kind of comes out of the reply at all it's not clear to me if that was intended as a separate grounds for challenging the banners just gloss on the one that was pleaded in or you but that the good faith question i think speaks to is an aspect of discrimination you know you can't discriminate unreasonably and in bad faith well first before we get to that question we have to define what discrimination is and the basic rule is if a carrier offers a service to the public it has to offer it to everyone even  handedly on equal terms and worried about people not things that they that's the basic distinction that we think decides this case that if delta ships bananas for jane it has to ship them for time but if delta doesn't ship bananas for anyone nobody can claim they're being treated differently from any other customer that's the basic rationale the chief judge lynn adopted in her opinion we think she got it exactly right the slight irony to mean to stop asking too many questions is it seems like both political very concerned about conservation delta is that's correct in the commuter line and the complaints allegation was this was a profit driven to soften the response and noisy place for protesters but i do want to kind of respond to the idea that this is anti hunting or anti one of that in the record what's that i'm sorry response to noisy facebook protesters i don't know why do you need to reply with we are required is it we don't need to let's move on yeah i set you up i asked you that question but but you're it and that's a case they cited as supporting their position but again that case says two things are very helpful to us one is the whole reason we're finding this steamship libel is because you hold yourself out as willing to carry lumber so if you do that you have to carry a paragraph forty one of the complaint a sermon who pleads that delta does not hold itself out as willing to carry a big five hundred trophies so that's the fundamental distinction this is not an on the fly bad faith decision delta announced a policy public publicly in  advance plies to all shippers everyone in the public is on notice of that and the ocean steamship case just like the supreme court's decision mopac said if this carrier doesn't want to carry lumber and thinks it can make more money carrying cotton it can do that it can stop it can change its holding out and no longer carry lumber for anybody that's its right as a business owner a common carrier has the same right as any other business honor to define the scope of its services the common law is not going to force you to do business against your will and that's th western district of arkansas articulate separable very well that is it the customer who decides who what the business is like or is it the common carrier and the delta is the only or line u s airline that does the direct africa u s flight that's not in transportation non direct common carrier on the air there are private carriers or contract carriers there are real roads and in steamship and there's a lot of ways to ship things other than just one american airline because they planted the endangered species act permits were obtained so from the standpoint of fish and wildlife service they've said it's ok to bring these in that's right and delta is not trying to prevent them from going hunting will carry them as passengers to go on these hunts they can ship their hunting supplies on our cargo planes to go down and take and go on these hunts and all we're saying is we made a business decision not to carry the trophies home on our cargo planes and that's not an anti hunting message that doesn't prevent anybody from going hunting that's just a common carrier setting the scope of it's business as you know i think we said the case go back to eight hundred thirty six saying a common carrier has a way to do that i'm happy to answer any other questions the court might have on the lead in addressing the fact that complaint was dismissed with conclude implicitly that amendment would have been futile and the plaintiff had four separate opportunities to file a motion for leave to amend under rule fifteen they can do it as of right within twenty one days after we file or motion after they chose to answer the motion instead of amending they had about four months where they could have sought leave and found them in a complaint then she's just limited to scheduling order that said they can demand as of right until august they don't even have to seek leave it in do it then when she dismissed the case they had twenty eight days where they could have filed a motion for reconsideration and this court's decision in the willard case said you can seek leave to amend as part of a rule fifty nine motion for reconsideration so they had four separate windows to seek leave they never did it they had a conditional request in a footnote saying dismiss they didn't say on what grounds they didn't say what facts they would add they never attached a copy of their amended complaint with the local rules require so even putting aside the waiver problem we think it's pretty clear that the utility of on the amendment question this case was dismissed in june the court order didn't clearly state with prejudice one without and the act scheduling order allowed us to amend as a right until august and so we had we expected an opportunity to be able to amend and there were on our brief although we admit we didn't attach an amended pleading but throughout her opposition to doubt his motion to dismiss we identified how we would plead should we be granted leave on the points as you were asking judge to consent of a common carriers i may not discriminate against people you know that's a very fine line here honors because  yes the final judgment not the memorandum order that the judgment is what control your right your honor exactly but at that point when the order was issued and if we had initially realized that there was book that we were not going to get a chance to amend we would have moved more quickly so you're one hundred percent right the final judgment dismissed it was prejudiced but it wasn't clear to us from the memorandum that that was going to be the case truck perfume that may be a product but what's the intended target of that why was a bank a trunk perfume banned and it's it's a little bit dangerous to allow a carrier to say will  all perfume but that one again the common law suggested a class was too broadly defined to allow that sort of slicing and dicing and secondly that appears to be a bad faith action to wash your honour's and we would suggest  actually affirmed it will continue to carry them then when the media and social media outcry arose over the allegedly illegal hunt assessable and delta immediately need or instituted this ban and despite having your complaint you used the word and that i'm not sure of your own or perhaps not but certainly we suggest that there was a reaction to a social media outcry and not any decision made for profit motive or other business reason simply because of concern about this one incident in your honour's we also rely on the heart case the delta relied upon because in that case the plaintiff was being provided with a special service it was allowed to load its cotton in a way it's coal excuse me in a way that other shippers were not loading their coal and so when the carrier there withdrew that service it was not withdrawing or changing the scope of it services but it was withdrawing a privilege that it was offering to that one shipper where carrier is changing and the court even said they're a carrier can't change the scope of that service it can't arbitrarily and capriciously whimsically or without reasonable grounds change the scope of it services but it can withdraw a privilege that is being offered to one shipper and not to others and that's consistent in the common law case law i lastly your honour's him we would just point out that in most of the cases delta relies on a carrier has instituted exclusions and what it carries at the beginning and not midway or