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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2003 Decided February 10, 2004

No. 03-7012

MARIA V. CRUZ, FOR HERSELF AND AS REPRESENTATIVE OF

GUSTAVO CRUZ AND JOAQUIN RODRIGUEZ MINORS, ET AL.,

APPELLANTS

v.

AMERICAN AIRLINES, INC.,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 96cv02817)

Leonard N. Bebchick argued the cause and filed the briefs

for appellants.

Wayne A. Schrader argued the cause for appellee. With

him on the brief was Paul DeCamp.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: EDWARDS, SENTELLE and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Several American Airlines, Inc.

passengers claim that they and others similarly situated lost

their luggage on international American flights. The passengers sued American in federal court seeking damages for

their lost or damaged luggage and various forms of injunctive

and declaratory relief. They sued under the Warsaw Convention, a treaty that governs claims for property damage

arising out of international transportation of people and property.1

 The individual plaintiffs also moved to certify their

suit as a class action on behalf of two categories of passengers. The district court granted American partial summary

judgment and declined to certify the class. Plaintiffs now

appeal both of those rulings. Because they have shown no

reversible error, we affirm the judgment of the district court.

I. Background

A. The Cruzes and their luggage

This case arises from some bad luck the Cruz family

purportedly had with their luggage. (We glean the statement

of facts that follows from the parties’ statements of material

undisputed facts, unless otherwise indicated. See D.D.C.

Local Civ. R. 56.1.) In 1995, five members of the Cruz family

flew on an American Airlines flight from Washington D.C.,

Reagan National Airport to Santo Domingo, the Dominican

Republic, checking two bags each. When they arrived in

Santo Domingo, the Cruzes reported to American that five of

their bags were missing.

The Cruzes subsequently filed a statement of property loss

with American, claiming that the bags were worth $15,000.

American, however, offered the Cruzes no compensation.

American refused to offer compensation because, according to

1 Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000,

T.S. No. 876, note following 49 U.S.C. § 40105 (2000).
3

American’s records, the Cruzes had filed their claims significantly more than 30 days after their loss. American’s policy

at the time was not to settle lost-baggage claims voluntarily if

the claimant submitted a lost-property form more than 30

days after the date of loss, though there were (unspecified)

exceptions to this internal policy (we refer to this policy as

the ‘‘30–day rule’’).

The Cruzes’ luggage travails did not end there. In 1997,

Beato Cruz, who had been on the previous American flight,

again flew on an American flight, this time from the Dominican Republic to New York City. When he arrived in New

York, according to Cruz’s deposition testimony, his bag was

badly damaged and was missing its contents.

The next day, Cruz filed a statement of lost property with

American, declaring that the value of his bag was $3,890.

That same day American gave Cruz a $100 travel voucher.

When he received the form, Cruz signed his name next to the

following statement:

CUSTOMER RECEIPT AND RELEASE: THE

ABOVE SUM RECEIVED FROM AMERICAN AIRLINES IS IN FULL SATISFACTION OF ALL

CLAIMS, LIABILITIES AND DEMANDS THAT I

MAY HAVE AGAINST SAID COMPANY.

Several months later, American issued Cruz a check for

$634.90 as compensation for his damaged luggage. The check

came with a letter stating that this figure was the maximum

amount of compensation American was legally obligated to

provide under the terms of its international tariff governing

baggage loss and under the Warsaw Convention. Article 18

of the Warsaw Convention generally provides passengers a

cause of action for damages against international carriers for

lost or damaged checked bags. Under Article 22(2), that

liability is limited to $9.07 per pound of lost or damaged

baggage. American’s international tariffs – which govern the

rates for its international flights and which under federal law

it must file with the Department of Transportation, see 49

U.S.C. § 41504 (2000) – specify a default ‘‘deemed weight’’ for

Caribbean passengers’ lost bags. This deemed weight, under
4

the tariffs, is used to calculate American’s liability under the

Warsaw Convention. The tariffs, specifically, provide that

the baggage weight of a Caribbean passenger with a single

bag is assumed to be 100 pounds – the bag’s maximum

allowable weight – unless the passenger’s ticket states the

actual weight.

American calculated the $634.90 it offered Cruz based on a

flawed understanding of the deemed weight of Cruz’s bag.

American computed that figure by multiplying $9.07 by 70

pounds, which it stated was the maximum allowable weight of

Cruz’s bag under its tariffs. The true maximum weight of

Cruz’s bag under the tariffs was 100 pounds. Therefore, the

calculation underestimated the per-bag limit applicable to

Cruz’s lost bag by at least $272.10 ($907 minus $634.90).

Cruz cashed the $634.90 check. The back of the check had

a legend of release on it, which stated that:

By endorsement or deposit of this check I (we) hereby

release American Airlines, Inc., its agents, including other airlines providing transportation, its employee’s [sic]

and representatives from all claims rising in connection

with the loss, damage or delay of my belongings transported or authorized to have been transported on the

travel date indicated on the remittance advise.

Cruz signed his name next to this statement when he endorsed the check. At that point, Cruz had already retained

his current attorney and was a party to this lawsuit against

American, which at the time only involved the Cruz family’s

1995 trip. Cruz also testified at his deposition that, when he

cashed the check, he believed he could sue American for ‘‘the

additional amount [he] believed [he] was owed,’’ which, according to positions he later took, was the bag’s fair value.

Again, Cruz’s position at the time was that the fair value of

his bag was $3,890.

B. The first phase of litigation

On December 20, 1996, five Cruz family members, including

Beato Cruz, sued American in federal district court to recover
5

the value of their bags. Relying on the Warsaw Convention,

they sought damages equal to the fair value of the contents of

their lost and damaged luggage. They also alleged that

American unlawfully required them to complete a lostproperty form and illegally applied the 30–day rule to them.

The Cruzes accordingly sought both a declaration that these

procedures were illegal and an injunction preventing American from applying the procedures to future passengers.

The district court dismissed plaintiffs’ declaratory and injunctive claims for lack of Article III standing. The court

reasoned that as American admitted, it had incorrectly required the Cruzes to fill out a claim form, mistakenly applied

the 30–day rule to the Cruzes’ claims, and agreed to process

the Cruzes’ claims as timely filed, the Cruzes personally stood

to gain little from the requested declaratory and injunctive

relief. Moreover, reasoned the court, the possibility that

American would in similar circumstances again misapply

those procedures to the Cruzes was highly improbable. The

district court concluded, therefore, that the Cruzes had no

standing to raise the declaratory and injunctive claims.

American also moved for partial summary judgment on the

Cruzes’ damages claims to the extent the Cruzes sought

damages in excess of the Warsaw Convention’s $9.07 perpound liability limit. American, however, conceded that it

was liable to the Cruzes to the extent of $9.07 per pound of

their lost bags. Consequently, American also moved for

entry of final judgment in the Cruzes’ favor to the extent of

$9.07 times the poundage of the Cruzes’ bags.

The district court granted both of American’s motions,

holding that American’s liability to the Cruzes under the

Warsaw Convention was limited to $9.07 per pound of lost

luggage. The Cruzes had argued that the Warsaw Convention’s liability limit did not apply because American had failed

to state the weight of each suitcase on the Cruzes’ baggage

stubs, as required by Article 4(3)(f) of the Convention. The

district court rejected this argument. Because American

conceded liability to the Cruzes and moved for partial judg-
6

ment in the Cruzes’ favor, the district court entered a judgment in the Cruzes’ favor to the extent of $9.07 times the

poundage of their bags.

While American’s summary-judgment motions were pending, the Cruzes moved to amend their complaint. Their

motion sought to transform their individual claims into classaction claims on behalf of others who had lost their luggage in

similar circumstances. That motion was pending when the

district court ruled on American’s summary-judgment motions. After its ruling, the district court dismissed the

Cruzes’ motion to amend as moot.

The Cruzes successfully appealed the district court’s judgment to this Court. On appeal, the Cruzes attacked, among

other things, the district court’s ruling regarding the Warsaw

Convention’s liability limit. In particular, they argued that

the liability limit did not apply to the Cruzes’ damages claims,

because American had failed to record the baggage weight of

each suitcase on the Cruzes’ baggage stubs. We accepted

that argument and accordingly vacated and remanded the

district court’s judgment. Cruz v. Am. Airlines, Inc., 193

F.3d 526, 528–30 (D.C. Cir. 1999). Cruz did not, however,

address whether the district court’s standing rulings were

correct. Nor did Cruz address whether the district court

correctly dismissed as moot the Cruzes’ motion to amend

their complaint. Cruz merely reinstated the Cruzes’ action to

its prior, pre-summary judgment status and thus revived the

Cruzes’ motion to amend their complaint to a class action.

Id. at 528 n.2.

C. The second phase of litigation

After remand, the Cruzes, in April 2000, filed an amended

complaint asserting two class-action claims. The complaint

described the ‘‘Claim I’’ class as

consist[ing] of all persons who during the period beginning two years prior to initiation of this suit, December

20, 1994, and ending on the date of Final Judgment

herein (the ‘‘Claim I class period’’) (a) checked their

baggage for transport for an international air journey to
7

or from the United States in whole or part performed by

American, (b) sustained the loss of or damage to their

checked baggage in circumstances where American is

made liable for such loss/damage under Warsaw Article

30(3), (c) gave timely notice of such loss/damage consistent with Warsaw Article 26 or applicable carrier tariff

rules, (d) made claim for the fair value of such loss/damage, and (e) suffered the non-processing or rejection of

their claim because of their alleged failure to comply with

the requirements of defendant’s 30–day Rule.

Claim I sought, inter alia, a declaration that American’s

‘‘application of its 30–day rule to checked baggage claims’’

was unlawful and an injunction preventing American from

applying the 30–day rule to the claims of future passengers,

and noting damages.

The complaint defined the ‘‘Claim II class’’ as

consist[ing] of all persons all persons [sic] who during the

period beginning two years prior to initiation of this suit,

December 20, 1994, and ending on March 3, 1999 (the

‘‘Claim II class period’’) (a) checked their baggage for

transport for an international air journey to or from the

United States in whole or part performed by American

and without the weight of that baggage having been

recorded on the passenger’s combined passenger ticket

and baggage check, (b) sustained the loss of or damage

to their checked baggage in circumstances where American is made liable for such loss/damage under Warsaw

Article 30(3), (c) gave timely notice of such loss/damage

consistent with Warsaw Article 26 or applicable carrier

tariff rules, (d) made claim for the fair value of such

loss/damage, and (e) thereafter received from American

for such claim a payment of compensation less than the

claimed fair value of such loss/damage, being an amount

(usually $634.90 but sometimes $907) which American

asserted was the limit of its liability for such baggage

loss/damage under Warsaw’s Article 22(2) liability limit

and its tariff rules.
8

Claim II asked the district court to award this class compensatory damages equal to the fair value of their lost or

damaged bags. Claim II also alleged that American had

typically (as it did with Beato Cruz) settled the Claim II class

members’ damages claims for $634.90 per bag, based on

American’s representation that this figure was the limit of its

liability under the Warsaw Convention. As discussed, those

settlement offers (70 pounds times $9.07) erroneously assumed that, for a single bag, the maximum weight provided in

American’s tariff was 70 pounds, not 100.

American moved for partial summary judgment, arguing,

as it had before the first appeal, that the Claim I plaintiffs

lacked standing to obtain a declaration that American’s 30–

day rule was unlawful and an injunction preventing American

from applying that procedure to future customers. As to

Claim II, American argued that Beato Cruz’s claim was

barred by the two American claim-release forms he signed.

The Cruzes, for their part, moved to certify both Claim I and

Claim II as class actions.

In their reply to American’s opposition to the Cruzes’

motion to certify the two classes, filed on November 3, 2000,

the Cruzes for the first time requested an additional form of

relief under Claim I, one mentioned in neither their complaints nor their previous certification and summaryjudgment documents. The Cruzes asked the district court to

declare that American had an obligation to ‘‘process’’ the

Claim I class members’ claims without regard to American’s

(since repudiated) 30–day rule, and for American to offer the

Claim I class compensation. The Cruzes requested that the

district court issue an injunction requiring American to do

both of those things.

The district court granted American’s partial summaryjudgment motion. The court decided to address American’s

summary-judgment motion before addressing the Cruzes’ certification motion. As to summary judgment, the court concluded that Beato Cruz had released his claim for money

damages by cashing the $634.90 check. Cruz had argued that

this release should be rescinded on grounds of misrepresenta-
9

tion or mutual mistake. American, Cruz claimed, mistakenly

represented to Cruz in the letter accompanying the $634.90

offer of settlement that the maximum weight of his bag, as

defined in American’s tariffs, was 70, not 100, pounds. As a

result, American had underestimated the maximum extent of

its Warsaw Convention liability to him. The district court

rejected that argument, in part because American pointed to

Cruz’s deposition testimony showing that this mistake or

misrepresentation did not contribute in any material way to

Cruz’s decision to sign the release. Cruz’s testimony at his

deposition was that, at the time he cashed the $634.90 check,

he was represented by his present attorney and believed that

he could successfully sue American for more than this amount

even after he signed the release.

The district court also agreed with American that none of

the Claim I putative class representatives had standing to

seek declaratory and injunctive relief to remedy American’s

misapplication of the 30–day rule to them. That relief, the

court reasoned, only would address American’s prospective

application of the rule, and therefore would not redress the

putative representatives’ actual injury – their lost bags.

Moreover, the court continued, the possibility that these same

plaintiffs would again fly on an international American flight,

lose their bags, and have the 30–day rule again applied to

them was simply too speculative an injury to establish Article

III standing. The district court did not address whether the

Cruzes had standing to seek relief under their newly articulated theory – specifically, whether they had standing to seek

a declaration and injunction ordering American to ‘‘process’’

their claims and make offers to them. Having dismissed

much of the Cruzes’ case on the merits, the district court

directed the Cruzes to file a new class-certification motion in

light of the trimmed-down posture of the case.

The Cruzes filed exactly three post-summary-judgment

motions. First, they renewed their motion to certify the

Claim I class. They claimed that their complaint, even after

the district court’s summary-judgment ruling, still presented

three common issues: (1) whether American was legally

obligated to compensate the Claim I class members; (2)
10

whether the district court should issue an injunction requiring

American to process their damages claims on their merits

without regard to the 30–day rule; and (3) whether the

Cruzes were entitled to a declaration that the Warsaw Convention liability limit did not apply to those class members

whose baggage weight American did not record on their claim

tickets.

Second, the Cruzes requested that the district court reconsider its summary-judgment ruling. The sole ground on

which the Cruzes sought reconsideration was that the district

court had mistakenly granted American summary judgment

as to the Claim II representatives’ claims. Specifically, they

repeated their argument that the release signed by the

representatives, contrary to the district court’s ruling, was

fatally tainted by American’s misrepresentation of the

deemed weight of their bags. That motion, however, did not

challenge the district court’s ruling that the Cruzes lacked

standing to assert their Claim I injunctive claims. Because

the Cruzes interpreted the district court’s summary-judgment

ruling to have implicitly denied their motion to certify the

Claim II class, the Cruzes did not formally renew that motion

in their reconsideration petition.

Finally, the Cruzes filed a motion they styled as a ‘‘contingent motion for disclosure and notification.’’ This motion

asked the district court to direct American to disclose to the

Cruzes the identities of the Claim I putative class members

and to invite them to intervene as plaintiffs, assuming the

district court concluded that ‘‘the existing complement of

plaintiffs seeking to serve as the [Claim I] class representatives requires supplementation or substitution.’’

The district court denied all three motions. As for the

Cruzes’ claims for declaratory and injunctive relief, the district court noted that it had already ruled that the Cruzes

lacked standing to challenge ‘‘the legitimacy of the 30–day

rule.’’ Thus, the court concluded, the Cruzes only had standing to seek damages for their lost bags. On the issue of

damages, the district court declined to certify a class. The

court relied primarily on Federal Rule of Civil Procedure
11

23(a), which requires that there be ‘‘questions of law or fact

common to the class’’ before a court may certify a class. The

court reasoned that the class members’ claims for damages

did not present a common issue. Resolution of any individual

damage claim, the court said, would require a detailed, individualized inquiry into the value of each person’s lost luggage,

miring the court in an ‘‘unmanageable series of mini-trials

that would destroy the efficiency rationale undergirding Rule

23.’’ For substantially the same reason, the court concluded,

alternatively, that the Cruzes’ remaining damages claims did

not present ‘‘question[s] of law or fact [that] predominate

over any questions affecting only individual members.’’ Fed.

R. Civ. P. 23(c)(3). The district court also denied the Cruzes’

motion for disclosure and intervention and their motion for

reconsideration of its earlier summary-judgment ruling.

Following the district court’s disposition, the Cruzes settled

their individual damages claims with American. The district

court accordingly entered an order granting American judgment on Beato Cruz’s Claim II claim and dismissing the

Claim I and Claim II class claims with prejudice. This

appeal followed.

II. Analysis

The Cruzes raise two sets of issues on appeal. The first

relates to the district court’s disposition of the motion to

certify the Claim I putative class. As to this claim, the

Cruzes argue that the district court mistakenly found they

lacked standing to pursue declaratory and injunctive relief on

behalf of that class. They also say that the district court

abused its discretion in declining to certify the class. And

they complain that the district court violated Rule 23(d)(2) by

denying their contingent request for the court to order American to disclose the identities of the Claim I putative class

members and to invite those people to intervene in this

action.

The second set of issues relates to the Claim II class.

Plaintiffs attack the district court’s ruling that Beato Cruz’s

damages claim was released. Plaintiffs also appear to argue
12

in their reply brief that the district court mistakenly declined

to consider the propriety of certifying the Claim II class.

For the reasons that follow, we reject all of these assertions

and affirm the judgment of the district court. We first

address the Claim I issues, then the Claim II issues.

A. Claim I issues

We review de novo the district court’s decision to grant

American summary judgment, viewing the evidence in the

light most favorable to the Cruzes, the nonmoving parties.

The district court’s summary-judgment ruling should be affirmed only if American has satisfied its burden of showing

that there is no genuine issue of material fact about whether

it is entitled to judgment. Tao v. Freeh, 27 F.3d 635, 638

(D.C. Cir. 1994). We may reverse a district court’s refusal to

certify a class only if it abused its discretion or applied

incorrect legal criteria in doing so. Hartman v. Duffey, 19

F.3d 1459, 1471 (D.C. Cir. 1994). The district court’s decision

not to order notice to the class is also a matter within the

district court’s ‘‘discretion,’’ Larionoff v. United States, 533

F.2d 1167, 1186 n.44 (D.C. Cir. 1976), and so we will also

reverse that only if the decision was an abuse of discretion.

1. Plaintiffs’ challenge to the prospective enforcement of

the 30–day rule.

The district court correctly found that the Cruzes lack

Article III standing to obtain an injunction forbidding American from enforcing its 30–day rule and a declaration that this

rule is unlawful. To establish standing, the Cruzes must

show that American’s actions have caused them some concrete injury that this declaratory and injunctive relief will

redress. Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663

(D.C. Cir. 1996) (en banc). The Cruzes have made no such

showing.

In particular, they have not shown that their challenge to

the prospective enforcement of American’s 30–day policy will

redress any concrete injury they have asserted. Plaintiffs

have alleged the loss of their luggage on American flights;
13

but a prospective injunction against future applications of the

30–day rule will do nothing to remedy that past harm. There

is a chance that plaintiffs could lose their luggage on a future

American flight; but plaintiffs have not alleged, much less

presented evidence, that they have any such travel plans.

Even if they did, the likelihood that American would, once

again, lose plaintiffs’ luggage is minuscule. And even assuming plaintiffs lost their luggage on another international

American flight, the likelihood that they would again file their

claims late is small, given their previous experience with

American; indeed, Beato Cruz’s actions – he filed his second

claim for reimbursement on time – shows that these oncewronged plaintiffs are unlikely to file their claims late again.

Even then, it is unlikely that American would again reject any

late-filed claim, given the litigation its 30–day rule spawned

and given that it has disavowed the 30–day rule.

Plaintiffs’ speculative interest in prospectively challenging

the 30–day rule parallels the one the Supreme Court found

fell short of establishing a concrete interest in City of Los

Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, a person

whom police officers stopped and applied a chokehold to sued

the City of Los Angeles and the officers for money damages

and an injunction declaring that this practice was unlawful.

Id. at 97–98. The Supreme Court held that the plaintiff

lacked standing to seek the injunctive remedy, since it was

highly unlikely that the plaintiff would be again stopped by

the police and subjected to the same sort of chokehold. Id. at

107–08. Therefore, the Court reasoned, the plaintiff had no

concrete interest in obtaining a prospective injunction.

The reasoning of Lyons applies to the claims before us. It

is not likely that plaintiffs will again lose their luggage on an

international American flight, much less again be denied

compensation as a result of the misapplication of the 30–day

rule. Though plaintiffs dismiss Lyons as involving a ‘‘wholly

concluded and unlikely to be repeated incident of a police

choke-hold,’’ that characterization aptly describes plaintiffs’

asserted injury as well.
14

2. Plaintiffs’ request for a retrospective injunction ordering American to process their claims and offer to settle

their claims.

Plaintiffs argue that the district court’s decision to grant

American summary judgment failed to consider a separate

claim for injunctive relief – a claim for a retrospective injunction ordering American to ‘‘process’’ plaintiffs’ compensation

claims without regard to American’s 30–day rule. This assertion challenges the district court’s summary-judgment ruling

that the Cruzes lacked standing to assert their Claim I

requests ‘‘for declaratory and injunctive relief regarding

[American’s] 30–day rule.’’ The district court never addressed plaintiffs’ request for a retrospective, as opposed to a

prospective, injunction and declaration, but that was because

the Cruzes’ lawyer failed to apprise the district court of it

sufficiently. We therefore decline to address its merits.

We root this decision in our well-established discretion not

to consider claims that litigants fail to raise sufficiently below

and on which district courts do not pass. See Singleton v.

Wulff, 428 U.S. 106, 120–21 (1976). The issue is whether, in

light of the policy of this rule to ‘‘encourage[ ] parties to

communicate with each other and the trial judge,’’ Edmond v.

U.S. Postal Serv., 949 F.2d 415, 422 (D.C. Cir. 1991), plaintiffs

apprised the district court with sufficient clarity of this challenge to its summary-judgment ruling.

They did not. Plaintiffs never mentioned this request in

their pleadings. Their revised complaint, in particular, contained no hint of this odd request for an injunction, as

plaintiffs’ counsel conceded when pressed at oral argument.

Nor did their summary-judgment papers, although those

papers did stress the uncontroversial (and distinct) proposition that American has a duty to compensate passengers

whose luggage it loses. The first clue plaintiffs gave the

district court of their new theory came in their reply to

American’s opposition to their motion to certify the Claim I

class – filed nearly four years after the Cruzes’ filed their

initial complaint.
15

This tardy, oblique assertion of the claim was not sufficient

to apprise the district court of the need to address this issue

in its summary-judgment ruling. Because plaintiffs asserted

it only in their class-certification papers, rather than their

summary-judgment papers, they did not give the district

court a square chance to decide the question at the summary

judgment stage. Plaintiffs, in particular, never made the

argument that they had standing to assert this claim, and

thus that American’s motion to dismiss the Claim I claims for

injunctive relief should have been denied.

Nor did plaintiffs make this argument clear to the district

court after the district court entered its order dismissing

Claim I to the extent it requested ‘‘declaratory and injunctive

relief regarding [American’s] 30–day rule.’’ Plaintiffs, most

damningly, never raised their retrospective injunctive claim

as a reason for the district court to reconsider its summaryjudgment ruling, although plaintiffs moved for reconsideration on other grounds. True, plaintiffs, in their renewed

motion for class certification, identified the claim as a common issue that might warrant certifying the class. By then,

however, the district court had granted American’s motion for

summary judgment as to Claim I injunctive relief related to

the 30–day rule, removing those claims from the case. When

plaintiffs belatedly argued that their new injunctive claim

presented a common issue ripe for class adjudication, the

district court, understandably, rejected it on the ground that

it had already dismissed plaintiffs’ injunctive claims. The

district court properly treated the unchallenged portions of

its summary-judgment order as the law of the case. Summary-judgment motions could not perform their function of

simplifying and narrowing disputed issues if district courts

had an obligation to reconsider, in light of the implications of

other positions taken by litigants, such rulings sua sponte.

Plaintiffs’ attempt to excuse their 11th-hour change of

course does not succeed. They attempt to assign the blame

to American, asserting that their shift simply reacted to

‘‘American’s assertion, first made in its summary judgment

papers, that it was free, as a matter of business policy, to

reject or refuse to process, class member damage claims,
16

whether or not its 30–day rule was unlawful or properly

applied.’’ This is both backward and wrong. It is wrong

because American, to our knowledge, has never made such an

assertion. American conceded below, in its brief, and at oral

argument, that it may have a duty to compensate some (but

not all) class members whose claims it rejected on the basis of

its (now-abandoned) 30–day rule, and thus that it was not

‘‘free’’ to reject those claims.

It is backward because plaintiffs, not American, are the

ones who shifted course. Nothing prevented the Cruzes from

making this argument either in the four years that passed

before the district court granted summary judgment against

them or in their reconsideration motion. This inaction moves

us, in our discretion, to decline to consider the merits of the

issue now.

Finally, it is appropriate for us to determine that the claim

was not sufficiently raised below, and therefore is not properly before us, without addressing whether plaintiffs have Article III standing to raise the claim. This approach is entirely

consistent with the rule that courts must address issues

relating to subject matter jurisdiction before reaching the

merits of a case. See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 101–02 (1998). As the Supreme Court has

explained, ‘‘a court that dismisses on other non-merits

grounds TTT makes no assumption of law-declaring power

that violates the separation of powers principles’’ underlying

the Steel Company rule. Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574, 585 (1999) (internal quotation marks and citation omitted). By declining to consider plaintiffs’ retrospective injunctive claim, we are, within our discretion, simply

declining to exercise jurisdiction over it. As Steel Company

itself recognized, it is permissible to do that without determining whether plaintiffs have Article III standing to assert

their claim for a retrospective injunction. See 523 U.S. at 100

n.3.

3. Class certification

Because plaintiffs’ claim for retrospective injunctive relief

is not properly before us, we can easily dispose of plaintiffs’
17

assertion that the district court abused its discretion in not

certifying the Claim I class. As discussed more fully above,

the district court declined to certify the Claim I class because

the class members’ damages claims presented individualized

issues not common to all class members. Plaintiffs do not

challenge this conclusion on appeal. Instead, plaintiffs assert

that their injunctive claims, rather than their damages claims,

are common issues that can be adjudicated class wide.

Those claims, however, are out of this case now that we

have concluded that plaintiffs either lack standing to raise

their injunctive claims or have not preserved them for appeal.

These conclusions therefore also refute plaintiffs’ certification

argument. The district court neither erred nor abused its

discretion in declining to certify the class on a ground that

plaintiffs do not challenge on appeal.

4. Notice

The district court did not abuse its discretion in denying

plaintiffs’ ‘‘contingent motion for disclosure and notification’’ –

in essence, a request that the district court order notice,

pursuant to Rule 23(d)(2), to a non-certified class. We doubt,

as a threshold matter, that a district court has any discretion

to order notice ‘‘in the conduct of [an] action[ ]’’ in which it

has declined to certify any class whatsoever, for such an

action may well not be one ‘‘to which [Rule 23] applies.’’ Fed.

R. Civ. P. 23(d)(2). Setting that point aside, however, the

district court, at a minimum, did not abuse its discretion by

declining to order notice to this putative class given that it

found the remaining issues in the case were unsuitable for

class treatment at all, and given that there was no reversible

error in that finding.

B. Claim II issues

We also affirm the district court’s decision to grant American summary judgment on Beato Cruz’s individual damages

claim and to deny his motion to certify the Claim II class. As

to the summary-judgment issue, the district court concluded

that Cruz’s individual damages claim was barred by the

release Cruz signed in exchange for American’s $634.90 pay-
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ment to him. Cruz challenges this ruling on appeal, claiming

that the release is voidable because American, in its letter

accompanying that payment, mistakenly represented the extent of its liability to Cruz under the Warsaw Convention.

Cruz also appears to argue in his reply brief that the district

court erroneously declined to address whether the Claim II

class should have been certified given that it granted American summary judgment on the representative plaintiffs’ individual claims. We reject both challenges.

1. The validity of the release

The parties disagree on the law applicable to the issue of

the validity of the release. Cruz argues that federal common

law applies; American says, and the district court agreed,

that state law applies. In any event, American continues,

Cruz’s release is valid regardless whether state law or federal

common law applies.

We agree with American that there is no conflict of law for

this Court to resolve. The parties have identified only three

possible sources of law: Maryland, Virginia, and federal

common law. Cruz argues that the federal common law rule

of decision to apply is the rule of the Second Restatement of

Contracts. That rule, as Cruz quotes approvingly in his brief,

is that ‘‘[a]n agreement is voidable’’ on grounds of mutual

mistake ‘‘where both parties were mistaken as to a basic

assumption of the agreement which has a material effect on

the exchange of performances.’’ Restatement (Second) of

Contracts § 152. In like fashion, Cruz relies on the Second

Restatement’s unilateral misrepresentation rule. That rule,

as stated in his brief, is that the release is voidable if Cruz’s

manifestation of assent was induced by a material misrepresentation by American that ‘‘substantially contributed’’ to

Cruz’s decision to sign the release. Id. §§ 164, 167.

In American’s view, under the law of Virginia and Maryland, Cruz may rescind the agreement on the ground of

mistake if he agreed to it with a mistaken belief concerning a

fact of significance. As for misrepresentation, American’s

understanding of the law of Virginia and Maryland is that
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Cruz may rescind the agreement if he reasonably relied on

American’s material misrepresentation.

The standards advocated by the parties do not conflict in

any respect relevant to our resolution of this appeal. While

the standards are not linguistically identical, all place the

burden on Cruz to make out this defense to enforcing the

release. The only difference is that the mutual mistake

standard labels whether Cruz relied on the misrepresentation

in terms of whether the mistake had a ‘‘material effect on the

exchange of performances’’ or whether the mistaken belief

concerned a ‘‘fact of significance,’’ rather than in terms of his

‘‘reliance’’ on the misrepresentation. These formulations all

go to whether the misrepresentation or mutual mistake was

important to Cruz in his decision to accept the release.

Therefore, the distinctions among them, in our view, make no

substantive difference, at least in this case, and so we need

not make a choice of law.

Turning to the merits, Cruz has shown no triable issue of

fact as to whether he relied on American’s mistaken misrepresentation. To review: American’s letter that accompanied

its $634.90 check to Cruz understated the limit of its Warsaw

Convention liability by $272.10. It is true, as Cruz points out,

that this was indeed a misrepresentation or mistake; but

Cruz has not established a triable issue of fact on the

essential element of Cruz’s reliance on this misrepresentation

or mistake.

Uncontradicted evidence in the summary-judgment record

establishes that this is not a triable issue. Cruz testified that,

at the time he signed the release, he believed that the release

would not prevent him from recovering even more money

from American. That belief demonstrates that he did not

rely on American’s representations about the state of the law

of Warsaw Convention liability. If Cruz, in accepting the

release, had relied on American’s representation about the

limit of its liability, he would not have believed that he could,

in his words, recover an ‘‘additional amount.’’ Rather, he

would have thought that American’s payment fully discharged

its payment obligation. That is because American paid him
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exactly what it represented it owed him. The fact that he

thought he was owed more shows that he did not believe that

representation, i.e., American’s view of the law.

Therefore, Cruz’s deposition testimony, together with the

fact that he was represented by his current lawyer at the

time, proves that he accepted a totally different measure, one

that did not depend on deemed weight. This evidence shows

that at the time – no doubt influenced by advice from his

lawyer in the pending litigation against American – Cruz

believed that he could recover the full $3,890 value of his bag

regardless of its weight, deemed or otherwise. That is clear

enough from positions his lawyer later took on his behalf, and

given the summary-judgment record the parties compiled, it

is not reasonable to read the record any other way. Because

Cruz did not accept deemed weight as a method for calculating liability at all, he could not have cared that American got

the deemed weight wrong. Cruz’s belief shows that he

accepted the release for totally different reasons, ones that

had nothing to do with American’s mistaken representation as

to deemed weight, and thus as to the limit of its liability

under the Warsaw Convention. Cruz’s failure to produce any

evidence creating a genuine issue as to this fact entitles

American to summary judgment on the question of this

defense to enforcing the release.

We recognize, as Cruz takes pains to highlight in his brief,

that the mistake at issue in this case is different from the one

in Curtin v. United Airlines, Inc., 275 F.3d 88 (D.C. Cir.

2001), but this distinction does not require a different result

in this case. In Curtin, United Airlines had offered to settle

the lost-baggage claims of certain of its passengers and, in

connection with these offers, had represented to these passengers that its liability was limited to $635 under the Warsaw Convention. Id. at 89–90. This Court held that this

representation did not allow the passengers who had settled

their claims with United to rescind the releases on the ground

of mutual or unilateral mistake. Id. at 96–97. American

made the representations before Cruz was decided, the Court

reasoned, when the law regarding the limit of American’s

liability under the Warsaw Convention was unsettled. Be-
21

cause that representation was reasonable in light of the

unsettled state of the law at the time the parties agreed to

the release, American made no ‘‘mistake,’’ the Court held.

Id.

Cruz is right that, unlike Curtin, American, in light of its

understanding of the law at the time of the release, made a

mistake. Given American’s belief that the Warsaw Convention liability limits applied, and its view of how to calculate

those liability limits, American mistakenly stated the limit of

that liability. We rest our holding not on the fact that

American made no ‘‘mistake,’’ but rather on the fact that that

Cruz has not established genuine issues of material fact about

whether he relied on that mistake, given that he did not think

American’s liability was limited at all.

2. Claim II class certification

Cruz does not argue in his opening brief that the district

court mistakenly declined to address whether the Claim II

class should be certified given that it dismissed only the

representative plaintiffs’ claims on the merits at the summary

judgment stage, rather than all of the claims of the Claim II

putative class. Although we may discern a hint of such an

argument after a close reading of plaintiffs’ reply brief (albeit

not a hint supported by both citations to authority and

argument, as is required by Federal Rule of Appellate Procedure 28(a)(9)), plaintiff was required to present, argue, and

support this claim in his opening brief for us to consider it.

See, e.g., Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 633 (D.C.

Cir. 2000). We are not ‘‘self-directed boards of legal inquiry

and research, but essentially TTT arbiters of legal questions

presented and argued by the parties.’’ Carducci v. Regan,

714 F.2d 171, 177 (D.C. Cir. 1983).

We therefore do not consider whether the district court

correctly declined to address the propriety of certifying the

Claim II class after it dismissed the individual plaintiff’s

damages claims. Although we do not decide the point, we

note that many of the reasons the district court gave in

declining to certify the Claim I class equally apply to whether

the Claim II class should have been certified. Once the
22

injunctive claims are gone, the issues in both Claim I and

Claim II are individualized.

III. Conclusion

For the reasons expressed above, the judgment of the

district court is affirmed.