FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD WORTMAN, individually and 

on behalf of all others similarly 

situated; WILLIAM ADAMS;

MARGARET GARCIA; BRENDEN G.

MALOOF; MICAH ABRAMS; MARTIN 

KAUFMAN; RACHEL DILLER; LORI 

BARRETT; CLYDE H. CAMPBELL;

MATTHEW EVANS; THOMAS 

SCHELLY; MARK FOY; JASON 

GREGORY TURNER; STEPHEN 

GAFFIGAN; BRUCE HUT; DICKSON 

LEUNG; KEVIN MOY; RUFUS 

BROWNING; LOLLY RANDALL;

CHRISTIAN DUKE; ANDREW BARTON;

TRACEY WADMORE SMITH; MICHAEL 

BENSON; TORI KITAGAWA;

WOODROW CLARK, II; JAMES EVANS;

MEOR ADLIN; JUSTIN LABARGE;

SCOTT FREDERICK; REIKO HIRAI;

IREATHA DIANE MITCHELL; LARRY 

CHEN; DAVID KUO; DAVID MURPHY;

TITI TRAN; ROBERT CASTEEL, III,

Plaintiffs-Appellees,

v.

No. 15-15362

D.C. No.

3:07-CV-05634-

CRB
2 WORTMAN V. ALL NIPPON AIRWAYS

ALL NIPPON AIRWAYS,

Defendant-Appellant.

DONALD WORTMAN, individually and 

on behalf of all others similarly 

situated; WILLIAM ADAMS;

MARGARET GARCIA; BRENDEN G.

MALOOF; MICAH ABRAMS; MARTIN 

KAUFMAN; RACHEL DILLER; LORI 

BARRETT; CLYDE H. CAMPBELL;

MATTHEW EVANS; THOMAS 

SCHELLY; MARK FOY; JASON 

GREGORY TURNER; STEPHEN 

GAFFIGAN; BRUCE HUT; DICKSON 

LEUNG; KEVIN MOY; RUFUS 

BROWNING; LOLLY RANDALL;

CHRISTIAN DUKE; ANDREW BARTON;

TRACEY WADMORE SMITH; MICHAEL 

BENSON; TORI KITAGAWA;

WOODROW CLARK, II; JAMES EVANS;

MEOR ADLIN; JUSTIN LABARGE;

SCOTT FREDERICK; IREATHA DIANE 

MITCHELL; LARRY CHEN; DAVID 

KUO; DAVID MURPHY; TITI TRAN;

ROBERT CASTEEL, III,

Plaintiffs-Appellees,

No. 15-15364

D.C. No.

3:07-cv-05634-

CRB

OPINION
WORTMAN V. ALL NIPPON AIRWAYS 3

v.

CHINA AIRLINES; EVA AIRWAYS,

Defendants-Appellants.

Appeal from the United States District Court

For the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted January 13, 2017

San Francisco, California

Filed April 14, 2017

Before: J. CLIFFORD WALLACE, RICHARD R. 

CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence and Partial Dissent by Judge Wallace
4 WORTMAN V. ALL NIPPON AIRWAYS

SUMMARY*

Antitrust

Affirming the district court’s partial denial of defendant 

airlines’ motions for summary judgment, the panel held that 

the filed rate doctrine did not preclude a suit for antitrust 

damages challenging defendants’ unfiled fares, fuel 

surcharges, or special “discount” fares.

The plaintiffs alleged that the airlines colluded to fix the 

prices of certain passenger tickets and fuel surcharges on 

flights between the United States and Asia, in violation of 

Section 1 of the Sherman Antitrust Act. 

The filed rate doctrine prohibits individuals from 

asserting civil antitrust challenges to an entity’s agencyapproved rates. The panel held that the doctrine did not 

preclude plaintiffs’ antitrust claims premised on unfiled 

fares because there were genuine issues of material fact as to 

whether the Department of Transportation effectively 

abdicated its authority over the unfiled air fares. The panel 

held that there were also genuine issues of material fact 

regarding the DOT’s exercise of regulatory authority over 

fuel surcharges. Addressing one airline’s “discount” fares, 

which differed in both price and terms from the airline’s filed 

tariffs, the panel held that the district court did not err in 

declining to apply the filed rate doctrine given questions of 

fact regarding whether the discount fares constituted the 

same product as the fares actually filed.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
WORTMAN V. ALL NIPPON AIRWAYS 5

Concurring in part and dissenting in part, Judge Wallace 

concurred in the bulk of the majority’s opinion. He 

dissented from the majority’s conclusion, in Section III, 

Subsection B of its opinion, that genuine issues of material 

fact remained as to whether the DOT effectively abdicated 

its authority over fuel surcharges that the defendants actually 

filed with the DOT. Judge Wallace wrote that the filed rate 

doctrine should not be expanded by the rule the courts must 

determine when an agency has “effectively abdicated” its 

authority, notwithstanding the actual filing of rates.

COUNSEL

Gary J. Malone (argued), Ankur Kapoor, and Alysia Solow, 

Constantine Cannon LLP, New York, New York; Douglas 

R. Rosenthal, Richard O. Levine, and Aymeric DumasEymard, Constantine Cannon LLP, Washington, D.C.; for 

Defendant-Appellant All Nippon Airways.

Tammy Tsoumas (argued), Jonathan J. Faria, and Jason Y. 

Kelly, Kirkland & Ellis LLP, Los Angeles, California;James 

H. Mutchnik, Chicago, Illinois; for Defendant-Appellant 

Eva Airways.

Steven N. Williams (argued) and Adam J. Zapala, Cotchett 

Pitre & McCarthy LLP, Burlingame, California; Michael P. 

Lehmann and Christopher L. Lebsock, Hausfeld LLP, San 

Francisco, California; for Plaintiffs-Appellees.
6 WORTMAN V. ALL NIPPON AIRWAYS

OPINION

M. SMITH, Circuit Judge:

Defendants-Appellants All Nippon Airways (ANA), 

China Airlines, and EVA Airways (collectively, 

Defendants) challenge the district court’s holding that the 

filed rate doctrine does not preclude Plaintiffs-Appellees’ 

putative class action suit for antitrust damages based on 

allegations of collusion and price fixing. We have not 

previously addressed the application of the filed rate doctrine 

to airline fares and fees. For the reasons set forth in this 

opinion, we hold that, based on the record in this case, the 

filed rate doctrine does not preclude Plaintiffs’ suit for 

antitrust damages challenging Defendants’ unfiled fares, 

fuel surcharges, or “discount” fares. We therefore affirm the 

district court’s partial denial of Defendants’ motions for 

summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs claim antitrust violations by Defendants in 

connection with three categories of Defendants’ charged 

rates: (1) unfiled fares, (2) fuel surcharges, and (3) special 

“discount” fares.

The DOT’s present regulations require airlines to file 

their base-fare rates to differing extents, depending upon 

whether a particular airline is included within Country 

Category A, B, or C. Airlines headquartered in or traveling 

between the United States and a Category A country need 

not file any fares. Airlines headquartered in or traveling 

between the United States and a Category C country must 

file all fares. Finally, airlines headquartered in or traveling 

between the United States and a Category B country must 

file certain, but not all, of their fares. Those fares not 
WORTMAN V. ALL NIPPON AIRWAYS 7

required to be filed are the “unfiled fares” at issue in this 

appeal.

In addition to charging base-fare rates, some airlines 

impose fuel surcharges, which are additional per-ticket fees 

based on the carrier’s fuel costs. Prior to 2004, the DOT did 

not permit separate fuel surcharges. Rather, airlines were 

required to incorporate the cost of fuel into the base ticket 

price. However, in October 2004, the DOT lifted its 

prohibition on separate fuel surcharges. The parties dispute 

whether the DOT required filing of these newly allowed 

surcharges. Defendants argue that it did, citing a 1999 DOT 

statement that “all surcharges are to be filed,” while 

Plaintiffs argue that the DOT’s 1999 statement has no 

relevance to fuel surcharges given that the DOT did not 

permit fuel surcharges at the time the statement was made. 

In any event, the record reflects that regardless of whether 

the DOT required airlines to file fuel surcharges, in many 

cases airlines did file them.

Finally, Defendant ANA offers a number of special 

“discount” fares. These include the “Satogaeri” fares and 

the “Business Discount,” “Biziwari,” or “Buz-Wari” fares, 

all of which operate in the same manner: Specifically, ANA 

files the respective fares with the DOT, then authorizes 

certain travel agents to sell tickets with more restrictive 

terms to consumers for some amount less than the filed rate. 

This lesser amount constitutes the “net fare,” which travel 

agents remit to ANA as payment for the ticket. The travel 

agent retains as a commission any difference between the net 

fare and the amount charged to the consumer.

The terms governing the fares actually filed by ANA 

differed substantially from the terms governing the discount 

fares. For instance, while one of ANA’s publicly-filed fares 
8 WORTMAN V. ALL NIPPON AIRWAYS

could be used for “circle trips”1 and “double open jaw 

trips,”2 the discounted version of that fare could not. The 

same public fare had a minimum stay of three days and 

allowed for a stopover in Japan and up to six transfers, while 

the discounted fare had no minimum stay, and did not allow 

stopovers or transfers. Some other of ANA’s filed fares 

similarly differed from their discounted versions in regard to 

the types of trips permitted, maximum stay required, the 

amount of time in advance the ticket needed to be purchased, 

restrictions on stopovers, and applicable cancellation fees.

Plaintiff Donald Wortman filed a putative class action 

against Defendants on November 6, 2007, alleging that 

Defendants (as well as other airlines no longer in the suit) 

colluded to fix the prices of certain passenger tickets and fuel 

surcharges on flights between the United States and Asia, in 

violation of Section 1 of the Sherman Antitrust Act, 

15 U.S.C. § 1. On November 23, 2009, Defendants filed 

motions to dismiss Plaintiffs’ complaint, in part on the 

ground that the filed rate doctrine barred Plaintiffs’ claims. 

The district court granted Defendants’ motions in part on 

May 9, 2011, but denied their motions in regard to their 

assertion of the filed rate doctrine as a defense against claims 

for antitrust damages.

 1 “Circle trips” begin and end at the same point, but involve multiple 

stopovers.

2 “Double open jaw” trips are those in which the origin and 

destination of the first flight are different from the origin and destination 

of the second, such that instead of traveling outbound from A to B and 

back from B to A, the customer travels outbound from A to B, but, then, 

on the second trip, from C to D.
WORTMAN V. ALL NIPPON AIRWAYS 9

On September 10, 2013, following over two years of 

discovery, Defendants moved for summary judgment, again 

on the basis of the filed rate doctrine. On September 23, 

2014, the district court granted in part and denied in part 

Defendants’ respective motions for summary judgment. The 

district court held that while the filed rate doctrine applied to 

bar Plaintiffs’ antitrust damages claims based on actuallyfiled fares, the doctrine did not preclude Plaintiffs’ claims 

regarding unfiled fares, fuel surcharges, or ANA’s 

“discount” fares.3 The district court then granted 

Defendants’ respective motions to certify its order partially 

denying summary judgment for interlocutory appeal. We 

similarly granted Defendants’ petitions for permission to 

appeal. See 28 U.S.C. § 1292(b).

ANALYSIS

I. The History and Application of the Filed Rate 

Doctrine

The filed rate doctrine is a judicially created rule that 

prohibits individuals from asserting civil antitrust challenges 

to an entity’s agency-approved rates. The doctrine 

originated in Keogh v. Chicago & Northwest Railway Co., 

260 U.S. 156 (1922). The plaintiffs in that case sought 

damages under the Sherman Act, alleging that the rates 

charged by common carriers exceeded those that would be 

charged in a competitive market. Id. at 159–160. The rates 

in question, however, had been filed with, and approved by, 

 3 Although the order is arguably susceptible to different readings, 

Plaintiffs acknowledged at oral argument that the district court’s order 

did not implicitly or explicitly grant summary judgment in Plaintiffs’ 

favor as to the unfiled fares, fuel surcharges, and discount fares. We treat 

the order as merely denying summary judgment in Defendants’ favor as 

to these rates.
10 WORTMAN V. ALL NIPPON AIRWAYS

the Interstate Commerce Commission (ICC). Id. at 160. The 

Supreme Court held that the plaintiffs’ suit was precluded, 

explaining that that

[i]njury implies violation of a legal right. The 

legal rights of shipper as against carrier in 

respect to a rate are measured by the 

published tariff. Unless and until suspended 

or set aside, this rate is made, for all purposes, 

the legal rate . . . . The rights as defined by 

the tariff cannot be varied or enlarged by 

either contract or tort of the carrier.

Id. at 163. The Supreme Court stated that the “paramount 

purpose” of this rule was to prevent “unjust discrimination” 

between consumers. Id.

The Supreme Court reaffirmed its Keogh holding six 

decades later, in Square D Co. v. Niagara Frontier Tariff 

Bureau, Inc., 476 U.S. 409 (1986), once again applying the 

filed rate doctrine to bar shippers’ challenges to carriers’ 

filed rates. The Court rejected the plaintiffs’ argument that 

Congress’ stated intention to promote competition in the 

shipping industry, as set forth in the Motor Carrier Act of 

1980, implied a private right to seek antitrust damages. Id. 

at 420. Rather, the Court held that absent a “specific 

statutory provision or legislative history indicating a specific 

congressional intention to overturn the long-standing Keogh

construction,” a private antitrust suit’s “harmony with the 

general legislative purpose is inadequate” to justify 

deviation from the rule. Id.; see also Maislin Indus., U.S., 

Inc. v. Primary Steel, Inc., 497 U.S. 116, 135 (1990) 

(“Generalized congressional exhortations to ‘increase 

competition’ cannot provide the ICC authority to alter the 

well-established statutory filed rate requirements.”). The 
WORTMAN V. ALL NIPPON AIRWAYS 11

Court also noted that the filed rate doctrine is not properly 

characterized as antitrust “immunity,” because other 

sanctions or equitable relief remain available. Square D, 

476 U.S. at 422. Rather, the doctrine simply precludes treble 

damages based on a hypothetically lower rate. Id.

While the filed rate doctrine initially grew out of 

circumstances in which common carriers filed rates that a 

federal agency then directly approved, we have applied the 

doctrine in contexts beyond this paradigmatic scheme, and 

most frequently in the realm of energy rates. In E. & J. Gallo 

Winery v. EnCana Corp., 503 F.3d 1027 (9th Cir. 2007), we 

considered a suit by customers against a natural gas supplier. 

The Federal Energy Regulatory Commission (FERC) had 

jurisdiction over the relevant transactions. Gallo, 503 F.3d 

at 1031. The defendants had not filed the challenged rates 

with FERC. See id. Rather, FERC had adopted a marketbased approach to rate setting. Id. at 1041–42. We held that 

“to the extent Congress has given FERC authority to set rates 

under the [Natural Gas Act] and FERC has exercised that 

authority, such rates are just and reasonable as a matter of 

law and cannot be collaterally challenged under federal 

antitrust law or state law.” Id. at 1035 (emphasis added). 

The question in that case was whether FERC had actually 

“authorized” the rates in question, the lack of a filing 

requirement notwithstanding. Id. at 1041 (citing Pub. Util. 

of Snohomish Cty. v. Dynegy Power Mktg., 384 F.3d 756, 

760 (9th Cir. 2004), for the proposition that “[t]he 

fundamental question . . . is whether, under the market-based 

system setting wholesale electricity rates, FERC is doing 

enough regulation to justify federal preemption of state 

laws.”). In Gallo, we found that it had. 503 F.3d at 1042–

43.
12 WORTMAN V. ALL NIPPON AIRWAYS

Specifically, we found that while Congress actively 

removed FERC’s authority “to set prices for first sales,” and 

thereby left “the determination of natural gas prices at the 

wellhead to market forces,” id. at 1037, FERC continued to 

regulate rates by (1) determining ex ante that “no seller of 

natural gas could obtain market power and that market-based 

rates would be just and reasonable,” (2) issuing “blanket 

certificates for sales” of natural gas, which only then 

suspended FERC’s rate-filing requirements for those sales, 

and (3) monitoring the “operation of the market through the 

complaint process,” id. at 1038 (internal quotation marks 

omitted); see also Public Util. of Grays Harbor v. Idacorp, 

379 F.3d 641, 651 (9th Cir. 2004) (identifying ways in which 

FERC maintained regulation of market-based rates). We 

also found in a prior case that FERC “imposed various 

reporting requirements on sellers,” and that the agency had 

“clearly stated its belief that these procedures satisf[ied] the 

filed rate doctrine.” Id. at 1041 (quoting Grays Harbor, 

379 F.3d at 651). FERC therefore had “not abdicated its 

responsibilities but ha[d] acted, albeit with a light hand, to 

authorize just and reasonable rates” such that the filed rate 

doctrine applied. Id. at 1042. We cautioned, however, that 

“a failure by FERC to exercise its statutory authority to 

approve rates would cast doubt on the underlying premise of 

the Filed Rate Doctrine.” Id. at 1040 (emphasis added).

We considered the filed rate doctrine in a wholly 

different context in Carlin v. DairyAmerica, Inc., 705 F.3d 

856 (9th Cir. 2013). That appeal arose from a putative class 

action brought by dairy farmers seeking monetary and 

injunctive relief due to the misreporting of pricing data to the 

United States Department of Agriculture (USDA), which 

affected the rates for raw milk set under Federal Milk 

Marketing Orders (FMMOs) pursuant to the Agricultural 

Marketing Agreement Act, 7 U.S.C. § 601 et seq. Carlin, 
WORTMAN V. ALL NIPPON AIRWAYS 13

705 F.3d at 864–66. We conceded that FMMO prices were 

not the paradigmatic “filed rates” contemplated in Keogh

because (1) they consisted only of minimum prices, (2) they 

were not nationally uniform, and (3) FMMOs did not exist 

at all in some locations. Id. at 870. Nevertheless, we found 

“sufficient attributes which justify the application of the 

doctrine.” Id. In particular, we reiterated our holding from 

Gallo that “meaningful review” by an agency is not a 

prerequisite to the application of the filed rate doctrine. Id. 

at 871. Rather, “the essential question [is] whether the 

market rates were authorized by the [agency].” Id. 

(emphasis in original). In other words, we must ask 

“whether the [agency] was doing enough regulation to 

justify federal preemption of state laws.” Id. at 872 (citing 

Gallo, 503 F.3d at 1041). “[T]he USDA did possess the 

authority and did exercise it to address problems as to the 

agency-set minimum prices for raw milk.” Id. at 873. Thus, 

the filed rate doctrine applied.

Nevertheless, despite the general applicability of the 

filed rate doctrine, we held in Carlin that the farmers’ suit 

was not barred because the federal agency in question had 

effectively—if retroactively—rejected the FMMO prices as 

incorrect, and “the policy considerations behind the doctrine 

d[id] not justify applying the doctrine as a bar in [that] case.” 

Id. at 874. In particular, calculating damages “would not [] 

involve the kind of ‘hypothetical’ speculation about agency 

decisions that Keogh forbids.” Id. at 882.

We have also addressed a scenario in which the filed rate 

doctrine did not apply at all, in Ting v. AT&T, 319 F.3d 1126 

(9th Cir. 2003). There, we held that the filed rate doctrine 

did not bar a putative class action in which customers alleged 

that a telecommunication provider’s new contract rates 

violated state contract and consumer protection laws, despite 
14 WORTMAN V. ALL NIPPON AIRWAYS

the fact that the Federal Communications Act (FCA) 

required telecommunication carriers to file tariffs with the 

FCC. Id. at 1130. We explained that the 

Telecommunications Act of 1996 “fundamentally altered the 

[FCA’s] regulatory scheme” by directing the FCC to 

“forbear from applying any regulation or any provision” 

where “enforcement of such regulation or provision [wa]s 

not necessary to ensure that [rates] . . . are just and 

reasonable” and nondiscriminatory, and where enforcement 

was neither necessary for consumer protection nor in the 

public interest. Id. at 1132 (quoting 47 U.S.C. § 160(a)).

The FCC promptly acted on its authority to forbear, 

explicitly stating that tariffs were no longer necessary due to 

market competition and that the filed rate doctrine would no 

longer apply. Id. at 1139 n.7. This new forbearance from 

requiring rate filings did not leave the market without some 

safeguards: The FCC retained a consumer complaint process 

as a means for consumers to seek a remedy for 

anticompetitive rates, and the FCC would not defer to the 

market where it determined the market to be “seriously 

flawed or not competitive.” Id. at 1143–45.

As these cases illustrate, the focus of the filed rate 

doctrine has somewhat expanded beyond its original 

application, in which an agency’s express approval of a rate 

precluded civil antitrust challenges to that rate. 

Nevertheless, our decisions make equally clear that this 

expansion is not without bounds. See, e.g., Carlin, 705 F.3d 

874.

II. Regulation of the International Airline Industry

The Federal Aviation Act of 1958 (FAA), Pub. L. No. 

85-726, 72 Stat. 731, established a regulatory structure for

airline rates. The FAA gave the Civil Aeronautics Board—
WORTMAN V. ALL NIPPON AIRWAYS 15

which has since been replaced by the DOT—authority to 

approve or disapprove international airline rates in service to 

its responsibility for preventing “unfair, deceptive, 

predatory, or anticompetitive practices in air transportation.” 

49 U.S.C. §§ 41501, 41504. The FAA required airlines to 

file all tariffs with the DOT, and authorized the DOT to hold 

hearings, either on its own initiative or upon consumer 

complaint, to determine the lawfulness of those rates. 

49 U.S.C. §§ 41504(a)–(b), 41509(a). The DOT 

implemented its authority through detailed regulations. See

14 C.F.R. Part 221.

In the late 1970s, Congress passed legislation intended 

to increase competition and reduce governmental regulation 

in the airline industry. The Airline Deregulation Act of 1978 

(ADA) wholly deregulated the domestic airline market, 

leading the DOT to cease accepting tariff filings for 

domestic air carriers. See 14 C.F.R. § 399.40; Tariffs for 

Post-1982 Domestic Travel (April 7, 1982), 47 FR 14892-

01. In the international airline market, however, Congress 

stopped short of full deregulation. Under the International 

Air Transportation Competition Act of 1979 (IATCA), the 

DOT retained jurisdiction over international airline rates, but 

had increased discretion over filing requirements. 49 U.S.C. 

§ 40109(c). IATCA correspondingly decreased DOT’s 

ability to grant antitrust immunity to fare agreements among 

carriers as part of Congress’ “determination that airline 

service levels and fares should be controlled by competition, 

not by government regulation.” Int’l Air Transport Assoc. 

Tariff Conf. Proceeding July 6, 2006 at *78; see also

49 U.S.C. § 41308(b). DOT continued to be responsible for 

providing a complaint process for consumers to challenge 

international air transport rates as anticompetitive. 14 C.F.R. 

§§ 302.501-507, 14 C.F.R. §§ 302.401–420.
16 WORTMAN V. ALL NIPPON AIRWAYS

In 1997, 20 years after the passage of IATCA, the DOT 

announced that, in keeping with “the continuing evolution of 

a policy where we rely on market forces rather than continual 

government oversight to set prices for air transportation,” 

rate filing no longer served a purpose in competitive foreign 

markets. 62 Fed. Reg. 10758, 10760. Accordingly, in 1999, 

DOT issued a final rule creating its three Country Categories 

(A, B, and C), each with different filing requirements. 

64 Fed. Reg. 40654; 14 C.F.R. § 293.10. As noted, supra, 

the rule required airlines flying between Category C 

countries and the United States, or that were “nationals” of a 

Category C country (i.e. those airlines headquartered in 

Category C countries), to file all tariffs with the DOT. 

14 C.F.R. § 293.10(a)(1)(iii). Airlines headquartered in or 

flying to and from Category B countries had to file only their 

standard one-way economy fares with the DOT. 14 C.F.R. 

§ 293.10(a)(1)(ii). Airlines headquartered in or flying to and 

from Category A countries were not subject to any filing 

requirements, except to the extent that they operated flights 

to or from Category B or C countries. 14 C.F.R. 

§ 293.10(a)(1)(i). The Country Categories corresponded 

roughly to the strength of bilateral agreements between the 

United States and a particular country. 64 Fed. Reg. at 

40656. The DOT stated that it “has always had the statutory 

authority to take action directly against unfiled passenger 

fares,” and “reserve[s] the option of reinstating the tarifffiling obligation . . . where consistent with the public 

interest.” 62 Fed. Reg. at 10763.

Airlines submit tariffs by filing them with the Airline 

Tariff Publishing Company (ATPCO), which acts as a 

private clearinghouse to distribute fares to various entities, 

including the Government Filing System (GFS) through 

which the DOT reviews filed fares. ATPCO filters 

submitted fares based on the DOT’s country categories, and 
WORTMAN V. ALL NIPPON AIRWAYS 17

flags certain fares to be “presented” to the DOT for review. 

The DOT does not consider a fare as filed until it has been 

so presented, and the DOT does not appear to have access to 

unpresented fares.

In 1999, the DOT required that “all surcharges . . . be 

filed.” DOT Notice of Exemption from the Department’s 

Tarriff-Filing Requirements, Dkt. OST-97-2050-14. 

However, the DOT prohibited airlines from charging 

separate fuel surcharges prior to 2004. In 2004, the DOT 

explained that the prohibition on fuel surcharges was 

“established at a time when the Department was regulating 

fares much more actively than is the case today, and [it was] 

concerned that tariff surcharges could undermine [its] 

regulatory supervision of fare levels.” However, it stated 

that increasingly competitive market conditions rendered 

this prohibition “no longer necessary to support the limited 

degree of pricing supervision that continues.”

As of October 2004, the DOT directed that “carriers 

[we]re free to file surcharges in general rules tariffs.” The 

following month the DOT announced that carriers could no 

longer advertise surcharges as being “governmentapproved,” stating that it could not “effectively monitor” 

fuel charges filed separately from base fares, and that listing 

separate surcharges as approved would constitute “an unfair 

and deceptive trade practice.” 69 Fed. Reg. 65676, 65676–

77.
18 WORTMAN V. ALL NIPPON AIRWAYS

III. Application of the Filed Rate Doctrine to 

International Airline Fares and Fees

A. Application of the Filed Rate Doctrine to Unfiled 

Fares

We have previously applied the filed rate doctrine to 

circumstances in which the relevant rates were not literally 

filed. See Gallo, 503 F.3d at 1042; Grays Harbor, 379 F.3d 

at 651–52; Wah Chung v. Duke Energy Trading, 507 F.3d 

1222, 1225 (9th Cir. 2007). In so doing, we have found that 

even though the regulating agency did not oversee rates via 

a filing system, the agency engaged in sufficient regulation 

through other means to satisfy the purposes of the doctrine. 

See, e.g., Gallo, 503 F.3d at 1042. In the present instance, 

by contrast, we agree with the district court’s determination 

that there were genuine issues of material fact as to whether 

the DOT effectively abdicated its authority over the unfiled 

air fares. Accordingly, we hold that the filed rate doctrine 

does not preclude Plaintiffs’ antitrust claims premised on the 

unfiled fares.

The parties do not dispute that the DOT had the authority 

to regulate unfiled rates, only whether it actually did so. As 

in the energy rate context, the DOT maintains a consumer 

complaint process through which consumers may challenge 

a rate as unreasonable or anticompetitive. The maintenance 

of a consumer complaint process is not, however, 

dispositive. See, e.g., Ting, 319 F.3d at 1143–44.

We acknowledge that, unlike the FCC’s affirmative 

disavowal of telecommunications regulation, the DOT has at 

least paid lip-service to the notion that it continues to 

exercise some oversight of unfiled rates. In particular, when 

the DOT first set forth its three-tiered filing scheme, it stated 

that the new system would “not materially lessen the 
WORTMAN V. ALL NIPPON AIRWAYS 19

Department’s ability to intervene in passenger pricing 

matters” because

First, the review of [International Air 

Transport Association] passenger fare 

agreements will continue. Second, the 

Department has always had the statutory 

authority to take action directly against 

unfiled passenger fares and rules under a 

variety of circumstances. And third, the 

Department will reserve the option under the 

proposed rule of revoking the exemption, and 

thus of reinstating the tariff-filing obligation, 

with regard to a particular carrier or carriers, 

or for specific markets, where consistent with 

the public interest.

62 Fed. Reg. at 10763. Nevertheless, the evidence shows 

that the DOT’s actual actions regarding unfiled fares have 

been minimal at best. Appellants point only to the 2005 

reassignment of Argentina to a stricter Country Category as 

evidence of any ongoing regulation. Additionally, there 

remains some question regarding whether—despite the 

DOT’s representation that it would maintain authority over 

unfiled fares—the DOT has the ability to actually access or 

review those fares. The DOT’s only means of considering 

unfiled rates appears to be through (1) assessment of the 

strength of bilateral pricing agreements between the United 

States and a given country, and (2) consumer complaints. 

See 14 C.F.R. §§ 302.501–507, 302.401–420.

In short, there are genuine issues of fact as to whether the 

DOT has effectively abdicated the exercise of its authority 

to regulate unfiled fares. Accordingly, the district court did 

not err in denying summary judgment to Defendants as to 
20 WORTMAN V. ALL NIPPON AIRWAYS

those fares based on the filed rate doctrine. See Gallo, 

503 F.3d at 1040 (“[A] failure by FERC to exercise its 

statutory authority to approve rates would cast doubt on the 

underlying premise of the Filed Rate Doctrine. . . .”).

B. Application of the Filed Rate Doctrine to Fuel 

Surcharges

As with unfiled fares, the parties do not contest that the 

DOT had authority to regulate fuel surcharges, but only 

whether it actually did so. The district court did not err by 

finding that genuine issues of material fact regarding the 

DOT’s exercise of regulatory authority over fuel surcharges 

precluded entry of summary judgment for Defendants.

The DOT did not permit airlines to impose fuel charges 

separately from base airfares prior to 2004, at which time the 

DOT appears to have permitted, but not required, airlines to 

file any such surcharges in their general rules tariffs. 

Admittedly, affording airlines the freedom to file surcharges, 

but not requiring them to do so, makes little sense—

businesses are unlikely to expend time and money 

complying with optional regulations. Thus Defendants 

argue that the DOT did actually require airlines to file fuel 

surcharges, and that the language “permitt[ing]” airlines to 

file surcharges in their general rules tariffs indicates 

discretion on the part of airlines regarding the procedural 

manner in which they file their fuel charges, not whether 

they file at all. Defendants further argue that the DOT 

required filing of fuel surcharges pursuant to its 1999 rule 

notice stating that “all surcharges are to be filed.” The record 

reflects that some of the airlines involved in this appeal did, 
WORTMAN V. ALL NIPPON AIRWAYS 21

or at least attempted to, file fuel surcharges during the class 

period.4

Application of the filed rate doctrine to fuel surcharges 

does not, however, turn on whether the DOT requires 

airlines to file those rates. Rather, summary judgment based 

on the application of the filed rate doctrine was inappropriate 

in light of the DOT’s express statement that it lacks the 

ability to “effectively monitor” fuel surcharges. 69 Fed. 

Reg. at 65676–77. As we stated in Gallo, “a failure by [the 

agency] to exercise its statutory authority to approve rates [] 

cast[s] doubt on the underlying premise of the Filed Rate 

Doctrine.” 503 F.3d at 1040.5 In the context of fuel 

surcharges, the DOT may have intended to exercise some 

 4 Some airlines privately filed fuel surcharges, but entered them into 

the database incorrectly such that they were not flagged to be presented 

to the DOT and thus were not considered “filed” within the meaning of 

the DOT’s regulations.

5 Notwithstanding Gallo’s instruction that actual filing does not end 

the filed rate doctrine inquiry, Judge Wallace cites Gallo and Carlin as 

establishing a “clear barrier” between filed and unfiled rates, such that 

an agency’s failure to regulate is only relevant where the rate in question 

was not filed. We do not find this reading of Gallo and Carlin

persuasive. On the contrary, while those cases may have dealt with rates 

not actually filed, their reasoning expressly invokes “the principles 

underlying [the] doctrine” to find that its application does not turn on 

“the act of literal rate filing.” Gallo, 503 F.3d at 1040. Our opinion does 

not effect the unbounded expansion that Judge Wallace cautions against. 

Rather, it consistently applies the logic expressly set forth in our prior 

cases. To hold, as Judge Wallace advocates, that merely filing a rate 

triggers application of the doctrine in every circumstance, would permit 

carriers to avoid civil antitrust damages by filing rates even where the 

relevant agency has expressly stated that it cannot or will not engage in 

regulation. Such application of the doctrine completely untethers it from 

both its underlying justification and the reasoning of our prior decisions. 

We decline to adopt such a rule.
22 WORTMAN V. ALL NIPPON AIRWAYS

regulatory authority, insofar as it required surcharges to be 

filed. The DOT’s intent in this regard is unclear given its 

lack of participation in this lawsuit. However, the evidence 

on record created a genuine issue of material fact as to 

whether the DOT retained the practical ability to do so. 

Inability to regulate, just as much as willful abdication, 

constitutes a “failure by [an agency] to exercise its statutory 

authority.” Id. In accordance with the DOT’s expression of 

its inability to regulate fuel surcharges, we decline to apply 

the filed rate doctrine to preclude Plaintiffs’ claims regarding 

those surcharges.

C. Application of the Filed Rate Doctrine to 

Discount Fares

The third category of fares for which the district court 

considered the application of the filed rate doctrine is that of 

ANA’s “discount” fares—as relevant here, those fares that 

differ in both price and terms from ANA’s filed tariffs. We 

acknowledge that the filed rate doctrine prohibits suits based 

not only on a difference between filed and actually-applied 

rates, see Maislin, 497 U.S. at 127, but also on any difference 

between filed and actually-applied terms, AT&T Corp. v. 

Central Office Tel., Inc., 524 U.S. 214, 223–27 (1998). 

However, we have not previously considered the application 

of the filed rate doctrine to a situation in which both the rate 

and the terms deviate from those on file with the regulating 

agency. We face that situation now, and we conclude that 

the district court did not err in declining to apply the doctrine 

given the questions of fact regarding whether the discount 

fares constitute the same product as the fares actually filed.

In Central Office, the Supreme Court stated that “the 

policy of nondiscriminatory rates is violated when similarly 

situated customers pay different rates for the same services.” 

524 U.S. at 223 (emphasis added). In this case, the terms of 
WORTMAN V. ALL NIPPON AIRWAYS 23

the unfiled discount tickets differed substantially from those 

of the filed fares. Moreover, the filed rate doctrine is 

grounded in the notion that courts should not be interpreting 

“reasonable” pricing when an agency has already approved 

a given rate, and the concomitant desire to avoid 

discriminatory pricing between customers. Keogh, 260 U.S. 

at 163–64. Neither of these justifications supports 

application of the doctrine to ANA’s discount-fare scheme. 

In regard to the latter, the entire system of discount fares is 

premised on varied pricing between consumers—

accompanied, of course, by differing terms. As to the former 

consideration, it is somewhat disingenuous to label the filed 

rates as “approved rates” for a corresponding discount fare 

since the service being purchased differs materially from that 

described in the filed tariff.

Economy class and business class fares are considered to 

be different products by the DOT, and are, accordingly, filed 

separately, despite the fact that each may apply to the same 

departure and arrival point. See 62 Fed. Reg. at 10760 

(distinguishing between “economy” fares, which must be 

filed by Category B countries, and “promotional” or 

“premium” fares, which need not be filed by Category B 

countries). The district court did not err in denying summary 

judgment to Defendants as to these discount fares. Given the 

differences in both the prices and terms, a question of fact 

existed as to whether the DOT could effectively regulate the 

actual fares because they arguably constituted different 

products from the filed fares.

CONCLUSION

The record as it currently stands indicates that the DOT 

has not exercised its authority to regulate unfiled airfares, 

fuel surcharges, or discount fares in a manner sufficient to 

justify the application of the filed rate doctrine. Should 
24 WORTMAN V. ALL NIPPON AIRWAYS

additional evidence indicate a greater degree of regulation 

by the DOT than is currently reflected in the record, the 

district court is free to reassess whether the filed rate doctrine 

bars any of Plaintiffs’ claims. Pursuant to 28 U.S.C. § 517, 

the United States may submit a statement in a case 

expressing its views on relevant issues in which it has an 

interest. See, e.g., Dept. of Fair Empl. and Hous. v. L. Sch. 

Admis. Council Inc., 896 F. Supp. 2d 849, 854 (N.D. Cal. 

2012) (non-party United States entering statement of interest 

pursuant to 28 U.S.C. § 517); Berglund v. Boeing Co., Inc., 

02-193-AS, 2006 WL 1805965, at *1 (D. Or. June 22, 2006) 

(same). On remand, we urge the parties to solicit the DOT’s 

views regarding its regulatory authority on the various rates 

here at issue.

We AFFIRM the district court’s partial denial of 

Defendants’ motions for summary judgment, and we 

REMAND this matter for further proceedings consistent 

with this opinion.

WALLACE, Circuit Judge, concurring in part and dissenting 

in part:

I concur in the bulk of the majority’s well-reasoned 

opinion. I dissent, however, from the majority’s conclusion 

that genuine issues of material fact remain as to whether the 

DOT effectively abdicated its authority over fuel surcharges 

that Defendants actually filed with the DOT.

In Section III, Subsection B, the majority discusses the 

second type of rate at issue in this appeal: fuel surcharges. In 

1999, when the DOT implemented the category A, B, and C 

rate-filing system, the DOT explicitly stated that “all 

surcharges are to be filed.” At the same time, however, the 
WORTMAN V. ALL NIPPON AIRWAYS 25

DOT did not allow fuel surcharges to be filed separately 

from airfares. Instead, the DOT insisted that carriers should 

recoup fuel expenses through increases in their base fares. In 

2004, the DOT changed this policy, and allowed, but did not 

require, airlines to file separate fuel surcharges.

The parties disagree vigorously as to what the record 

reflects regarding the filing of fuel surcharges. Defendants 

assert that they “are unambiguously required to file all 

surcharges, including fuel surcharges, with DOT. . . . While 

the district court concluded that DOT did not require fuel 

surcharges to be filed, that conclusion was simply incorrect.” 

Plaintiffs, on the other hand, contend that Defendants “were 

never required to file them as a matter of law.” 

Notwithstanding the factual disagreement over whether the 

DOT required the filing of surcharges after 2004, the record 

is also unclear as to whether Defendants actually filed them 

in a consistent manner.

In sorting through the record on the filing of fuel 

surcharges, the majority concludes that “summary judgment 

based on the application of the filed rate doctrine was 

inappropriate in light of the DOT’s express statement that it 

lacks the ability to ‘effectively monitor’ fuel surcharges.” 

For the fuel surcharges that were not actually filed, I agree 

with the majority’s analysis, and assert that these unfiled 

surcharges should be treated the same as the unfiled airfares. 

Defendants have not pointed to any evidence indicating the 

DOT’s regulation of unfiled fuel surcharges. Instead, 

Defendants merely assert that the DOT required all 

surcharges to be filed (which, as described above, is 

contested). Accordingly, I agree with the majority’s holding 

that the filed rate doctrine does not bar, as a matter of law, 

antitrust challenges to unfiled fuel surcharges.
26 WORTMAN V. ALL NIPPON AIRWAYS

I conclude, however, that the majority is incorrect as to 

any fuel surcharges that were actually filed. In Square D Co. 

v. Niagara Frontier Tariff Bureau, Inc., the Supreme Court 

affirmed the filed rate doctrine’s viability and held that the 

filed rate doctrine was not limited to instances in which 

“rates had been investigated and approved” but rather 

extended to instances “whenever tariffs have been filed.” 

476 U.S. 409, 417 n.19 (1986), quoting Square D Co. v. 

Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1351 

(2d Cir. 1985).

The facts and the Supreme Court’s holding in Square D

are not the same as in our case. Moreover, Square D merely 

made the assertion in a footnote that the filed rate doctrine 

bars claims “whenever tariffs have been filed.” 

Nevertheless, this footnote from Square D is the closest the 

Supreme Court has come to answering the question of 

whether challenges to rates that were actually filed are 

permissible under the filed rate doctrine. The Supreme Court 

answered no to this critical question. Thus, I assert that the 

fuel surcharges that have actually been filed in our case fall 

under the umbrella of Square D’s holding.

The majority’s conclusion on this issue seems to rely 

solely on the DOT’s statement that it lacked the ability to 

“effectively monitor” fuel surcharges. The DOT’s statement, 

however, must be read in its full context. In 2004, the DOT 

stated:

[T]he desire of carriers to pass on the higher 

cost of certain expenses discretely, such as 

insurance and fuel, has led to such expenses 

being filed separately from the “base” fare in 

tariffs, a situation that the Department cannot 

effectively monitor. . . . [T]he Enforcement 

Office will no longer allow the separate 
WORTMAN V. ALL NIPPON AIRWAYS 27

listing of “government-approved” surcharges 

in fare advertising. We will consider the 

separate listing of such charges in fare 

advertisements an unfair and deceptive trade 

practice. . . .

69 Fed. Reg. at 65676–77. From this single statement, 

regarding “the separate listing of ‘government-approved’ 

surcharges in fare advertising,” the majority formulates a 

genuine issue of material fact as to whether the filed rate 

doctrine is inapplicable to all fuel surcharges, whether or not 

they were filed. I assert that the majority reads far too much 

into the DOT’s statement relating to advertising.

Accordingly, I would reverse the district court to the 

extent it held that Plaintiffs could challenge the literally-filed 

fuel surcharges. The existence of the rates that were actually 

filed, combined with the existence of the DOT’s consumer 

complaint process, negates any issue of material fact as to 

whether the DOT effectively abdicated its authority to 

regulate actually-filed fuel surcharges.

When we create and expand judge-made doctrines, such 

as the filed rate doctrine, we must do so with an eye towards 

the lower courts’ application of those doctrines. In Gallo and 

Carlin, we employed the “effective abdication” exception to 

the filed rate doctrine in situations when rates had not 

actually been filed.1 This rule erected a clear barrier between 

 1 The majority, in footnote 5, asserts that Gallo stands for the 

proposition that the filed rate doctrine’s application “does not turn on 

‘the act of literal rate filing’” (Majority Opinion at n.5, quoting Gallo, 

503 F.3d at 1040). The majority’s statement is misleading. The full 

sentence from Gallo, from which the majority selectively clips, is: 

“Moreover, although the Supreme Court initially applied the Filed Rate 
28 WORTMAN V. ALL NIPPON AIRWAYS

treatment of rates that had actually been filed versus those 

that had not. Here, the majority muddles that barrier, and 

expands the exception by adopting the rule that courts must 

determine when an agency has “effectively abdicated” its 

authority, notwithstanding the actual filing of rates. I fear 

this expansion has no limiting principle, and could lead to 

the crumbling of the filed rate doctrine, in contravention of 

the Supreme Court’s guidance. Adhering to a rule—that the 

literal filing of rates means the filed rate doctrine applies—

is more workable than the nebulous standard the majority 

has constructed here. Thus, I respectfully dissent from 

Section III, Subsection B of the majority opinion.

 Doctrine to actual filed rates, courts have held that the principles 

underlying this doctrine preclude challenges to a wide range of FERC 

actions, not just the act of literal rate filing.” Id. In essence, what Gallo

conveys here is that while the filed rate doctrine has commonly applied 

only to actually-filed rates, its reach can expand even further, to 

scenarios in which rates have not been filed. In no way does Gallo

suggest that the filed rate doctrine does not apply to actually-filed rates. 

Indeed, application to filed rates makes sense and is not “unbounded,” 

because it allows the DOT to rely on complaints about a filed rate to 

exercise its supervision.