10731_1 | D.C. Cir. | Jul 12, 1951
Lead Opinion
Appellant, an “irregular” or “non-scheduled” interstate air carrier, brought suit under the antitrust laws against appellees, who are regularly certificated air carriers, and their trade association. Alleging that appellees have combined and conspired to restrain and to monopolize the air-borne commerce of the United States by suppressing competition therein and by controlling the channels through which prices, terms and conditions thereof are determined, appellant asked for injunctive relief and for treble damages. The specific acts and the course of conduct by which appellees are said to be pursuing their objective are described in paragraph 22 of the complaint. That paragraph accuses appellees of conspiring to:
“(a) Solicit, persuade, induce, and coerce ticket agencies and travel bureaus from acting as agents for plaintiff and other irregular air carriers and ‘nonskeds’ and from making sales and distribution of tickets, charters and contracts on their behalf;
“(b) Influence administrative agencies to impose rules, regulations and inspections favorable to the certificated air carriers and burdensome to the ‘nonskeds’, and obtain subsidy and other preferences denied the ‘nonskeds’;
“(c) Discredit and disparage the plaintiff and other ‘nonskeds’, or irregular air carriers, and destroy public confidence in them by means of false and misleading advertisements and news releases and stories;
“(d) Eliminate and prevent competition for air carrier passenger and freight transportation ;
“(e) Offer transportation 'at cut prices until competition was eliminated, and then to compensate themselves by reimbursement from other operations or by increasing or enhancing prices after competition is eliminated;
“(f) Utilize their domination and control over the air-borne commerce of the nation to encourage and promote consolidations, mergers, expansion and debt refundings in order to completely dominate the field and eliminate ‘nonskeds’ and irregular air carriers ;
“(g) Use such dominant control to obtain huge quantity discpunts from major gasoline and oil suppliers not available to the plaintiff and other comparable ‘nonskeds’ ;
“(h) Cause refusal and delay of vital maintenance and other services at airports to the plaintiff and other ‘nonskeds.’ ”
The District Court denied relief on the ground that the complaint raised matters which “the Civil Aeronautics Act [49 U.S.C.A. § 401 et seq.] was passed to correct” and which fall, therefore, within the primary jurisdiction of the Civil Aeronautics Board. Appellant contends, as it did in the trial court, that the Board has no authority to enjoin the broad conspiracy alleged to exist or to award damages attributable to that unlawful conspiracy.
Here, as in Pennsylvania Water & Power Co. v. Federal Power Commission,
It is apparent that “the antitrust laws can have only limited application to industries regulated by specific statute.”
Examination of the Civil, Aeronautics Act discloses that it. provides for detailed and comprehensive economic regulation by the Board of air carriers subject to its jurisdiction. In addition to the customary control over entry into the field, through issuance of certificates of public convenience and necessity,
Comparison of these provisions of' the Civil Aeronautics Act with the allegations of the complaint reveals that that Act-“covers the dominant facts alleged in the-present case as constituting a violation of the Anti-Trust Act”.
The Board may, of course, ultimately determine that it lacks jurisdiction over certain phases of the complaint. In that event, there will he no conflict of authority between antitrust laws and specific statute and jurisdiction will remain in the District Court to deal with such matters. But, as we have indicated, that cannot be known until the Board has had an opportunity to act on these allegations. Until it has done so, injunctive relief in the District Court is unavailable. And, to the extent that various practices, agreements, methods of competition, etc., are determined by the Board to be authorized or permissible under the Civil Aeronautics Act, no injunctive relief under the antitrust laws will be available at any time. The antitrust laws would to that extent be superseded by the regulatory ■statute. Otherwise, we might have the spectable of courts throughout the country enjoining practices as violations of the antitrust laws even though the agency specifically authorized to deal with them has determined or may decide, subject to judicial review, that such practices serve the interests of the national air transportation policy.
The prayer for treble damages under the antitrust laws raises a different problem. The Civil Aeronautics Act, unlike the Interstate Commerce Act and the Shipping Act, does not authorize the award of damages by the Board for violation of its provisions. Where specific damage provisions are contained in regulatory statutes, it has been held that there may be no recovery of treble damages under the antitrust laws.
We do not intend to intimate that appellant may recover damages ■ for appellees’ violation of the Civil Aeronautics Act. Treble damages may be obtained only for injuries to business and property resulting from action forbidden by the antitrust laws. And the District Court rather than the Board, is the forum in which the latter issue must be resolved. What we are saying is that the same set of facts may give rise to both a violation of the Civil Aeronautics Act and a violation of the antitrust laws. Although the second does not necessarily follow from the first but is bottomed upon its own statutory standards, the antitrust remedy of treble damages is not defeated by the fact that the Civil Aeronautics Act is also violated. As we have already indicated, there can be no antitrust violation if a matter within the Board’s jurisdiction is found by it to be legal under the Civil Aeronautics Act.
We think accommodation of the two statutes and of' the remedial provisions thereof can best be accomplished as follows: The District Court should retain jurisdiction of the antitrust suit while appellant seeks his.remedies from the Board. This is consistent with General American Tank Car Corp. v. El Dorado Terminal Co., 1940, 308 U.S. 422" court="SCOTUS" date_filed="1940-01-29" href="https://app.midpage.ai/document/general-american-tank-car-corp-v-el-dorado-terminal-co-103270?utm_source=webapp" opinion_id="103270">308 U.S. 422, 433, 60 S.Ct. 325, 331, 84 L.Ed. 361, in which the Court said, “When it appeared in the course of the litigation that an administrative problem, committed to the Commission, was involved, the court should have stayed its hand pending the Commission’s determination of the lawfulness and reasonableness of the practices under the terms of the Act. There should not be a dismissal, but * * * the cause should be held pending the conclusion of an appropriate administrative proceeding.”
Reversed and remanded.
. — U.S.App.D.C. —, — F.2d —.
. Id. at p. 4.
. Ibid.
. Ibid.
. Section 1107(k) of the Civil Aeronautics Act, 49 U.S.C.A. § 677, is to the same effect. It provides: “All other Acts or parts of Acts inconsistent with any provision of this Act are hereby repealed.”
. Emphasis supplied. See Terminal Warehouse v. Pennsylvania R. Co., 1936, 297 U.S. 560, 513-514, 56 S. Ct. 546" court="SCOTUS" date_filed="1936-03-02" href="https://app.midpage.ai/document/terminal-warehouse-co-v-pennsylvania-railroad-102622?utm_source=webapp" opinion_id="102622">56 S.Ct. 546, 80 L.Ed. 827.
. Keogh v. Chicago & N. W. Ry. Co., 1922, 260 U.S. 156" court="SCOTUS" date_filed="1922-11-13" href="https://app.midpage.ai/document/keogh-v-chicago--northwestern-railway-co-100052?utm_source=webapp" opinion_id="100052">260 U.S. 156, 162, 43 S.Ct. 47, 67 L.Ed. 183.
. Georgia v. Pennsylvania R. Co., 1945, 324 U.S. 439" court="SCOTUS" date_filed="1945-03-26" href="https://app.midpage.ai/document/georgia-v-pennsylvania-railroad-104109?utm_source=webapp" opinion_id="104109">324 U.S. 439, 455 et seq., 65 S. Ct. 716" court="SCOTUS" date_filed="1945-03-26" href="https://app.midpage.ai/document/georgia-v-pennsylvania-railroad-104109?utm_source=webapp" opinion_id="104109">65 S.Ct. 716, 89 L.Ed. 1051. Cf. United States v. Borden, 1939, 308 U.S. 188, 198-201, 60 S. Ct. 182" court="SCOTUS" date_filed="1939-12-04" href="https://app.midpage.ai/document/united-states-v-borden-co-103246?utm_source=webapp" opinion_id="103246">60 S.Ct. 182, 84 L.Ed. 181.
. 49 U.S.C.A. § 481.
. Id., § 484.
. Id., §486.
. Id., § 490.
. Id., §491.
. Id., § 494.
. Id., § 488. See also id. § 489.
. Id., §493.
. Id., §492.
. Id., § 492(a). Emphasis supplied.
. U. S. Navigation Co. v. Cunard S. S. Co., 284 U.S. at page 483, 52 S.Ct. at page 250, 76 L. Ed. 408" court="SCOTUS" date_filed="1932-02-15" href="https://app.midpage.ai/document/united-states-navigation-co-v-cunard-steamship-co-101842?utm_source=webapp" opinion_id="101842">76 L.Ed. 408.
. This primary jurisdiction rule arose Under the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., which contained a saving clause similar to that found in 49 U.S.C.A. § 676. See Mitchell Coal Co. v. Pennsylvania R. Co., 1913, 230 U.S. 247" court="SCOTUS" date_filed="1913-06-09" href="https://app.midpage.ai/document/mitchell-coal--coke-co-v-pennsylvania-railroad-97961?utm_source=webapp" opinion_id="97961">230 U.S. 247, 256, 33 S.Ct. 916, 57 L.Ed. 1472; U. S. Navigation Co. v. Cunard S. S. Co., 284 U.S. at pages 485-486, 52 S.Ct. at pages 250, 251.
. Georgia v. Pennsylvania R. Co., 324 U.S. at page 456, 65 S.Ct. at page 725, 89 L.Ed. 105.
. 49 U.S.C.A. § 642.
. 284 U.S. at page 487, 52 S.Ct. at page 251. See Isbrandtsen Co. v. United States, D.C.S.D.N.Y.1948, 81 F. Supp. 544" court="S.D.N.Y." date_filed="1948-12-20" href="https://app.midpage.ai/document/isbrandtsen-co-v-united-states-1394789?utm_source=webapp" opinion_id="1394789">81 F.Supp. 544, 546.
. Transcontinental & Western Air, Inc.— Delta Air Dines, Inc., Interchange of equipment, 8 C.A.B. 857, 860 (1947).
. See discussion in McDean Trucking Co. v. United States, 1944, 321 U.S. 67" court="SCOTUS" date_filed="1944-01-17" href="https://app.midpage.ai/document/mclean-trucking-co-v-united-states-103926?utm_source=webapp" opinion_id="103926">321 U.S. 67, 79-80, 85-86, 64 S. Ct. 370" court="SCOTUS" date_filed="1944-01-17" href="https://app.midpage.ai/document/mclean-trucking-co-v-united-states-103926?utm_source=webapp" opinion_id="103926">64 S.Ct. 370, 88 L.Ed. 544.
. Terminal Warehouse v. Pennsylvania R. Co., 297 U.S. at page 513, 56 S.Ct. at page 551, 80 L. Ed. 827" court="SCOTUS" date_filed="1936-03-02" href="https://app.midpage.ai/document/terminal-warehouse-co-v-pennsylvania-railroad-102622?utm_source=webapp" opinion_id="102622">80 L.Ed. 827.
. Terminal Warehouse v. Pennsylvania R. Co., 297 U.S. at page 514, 56 S.Ct. at page 551; U. S. Navigation Co. v. Cunard S. S. Co., 284 U.S. at pages 484-485, 52 S.Ct. at page 250, 76 L. Ed. 408" court="SCOTUS" date_filed="1932-02-15" href="https://app.midpage.ai/document/united-states-navigation-co-v-cunard-steamship-co-101842?utm_source=webapp" opinion_id="101842">76 L.Ed. 408; Keogh v. Chicago & N. W. Ry. Co., 260 U.S. at pages 163-164, 43 S. Ct. 47" court="SCOTUS" date_filed="1922-11-13" href="https://app.midpage.ai/document/keogh-v-chicago--northwestern-railway-co-100052?utm_source=webapp" opinion_id="100052">43 S.Ct. 47, 67 L.Ed. 183.
. § 1106 of the Civil Aeronautics Act, 49 U.S.C.A. § 676.
. Georgia v. Pennsylvania R. Co., 324 U.S. at page 455, 65 S.Ct. at page 725; 89 L. Ed. 1051" court="SCOTUS" date_filed="1945-03-26" href="https://app.midpage.ai/document/georgia-v-pennsylvania-railroad-104109?utm_source=webapp" opinion_id="104109">89 L.Ed. 1051.
. See Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246" court="SCOTUS" date_filed="1951-05-07" href="https://app.midpage.ai/document/montana-dakota-utilities-co-v-northwestern-public-service-co-104897?utm_source=webapp" opinion_id="104897">341 U.S. 246, 71 S.Ct. 692.
. Cf. Emich Motors v. General Motors, 1951, 340 U.S. 558, 71 S.Ct. 408.
. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., supra.
. A decision in conflict with ours was recently handed down by Judge Forman of the United States District Court of Now Jersey, Slick Airways v. Air Transport Ass’n, — F.Supp. —.
Concurrence Opinion
(concurring in part).
I agree with the majority that this case should be reversed and remanded, but I differ somewhat as to what should be done with this complaint when it has been remanded.
If the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq., makes no provision for damages, the conclusion, it seems, is inescapable that the appellant should not be required to perform the useless task of making the request before the Civil Aeronautics Board. As the majority has said the District Court has jurisdiction to hear the complaint with respect to damages. Consequently there is no reason for the application of the doctrine of primary jurisdiction here. This conclusion is emphasized when the provisions of Section 414 of the Civil Aeronautics Act are considered. That section relieves "Any person affected by an order made under sections 408, 409 or 412 of this Act,” from the operations of the antitrust laws. The obvious import of this section is that all persons not affected by an order made under these three sections are still subject to the antitrust laws. Since the three sections, exempted from Section 414, do not attempt to award damages it should be quite apparent that Congress did not intend to suspend the operation of the antitrust laws in this situation. This view is again reinforced by Section 1106 which provides that nothing in the Act shall “abridge or alter the remedies now existing at common law or by statute”. This section affirmatively incoporates the antitrust remedies other than the three sections excepted by Section 414 of the Act. Section 22 of the Interstate Commerce Act, 49 U.S.C.A. § 22 has been emasculated by the courts, but that should not be done here where unlike the Interstate Commerce Act there is no provision for damages. If Section 22 of the Interstate Commerce Act were given effect, it would defeat the provisions of that Act which allow the Board not only to award damages under Section 16 of that Act, but to apply for an injunction to enforce its orders under Section 8 of that Act. This is not the situation in the instant case; at best the appellant could only have obtained partial relief by first applying to the Board.
The injunction requested in this complaint presents somewhat different problems. Under Section 411 the Board is given the power to issue cease and desist orders if an air carrier “is engaged in unfair or deceptive practices or unfair methods of competition”. Undoubtedly this complaint urges unfair and deceptive practices and methods in at least one allegation of the complaint and consequently the Board in this instance, had it been requested or even on its own motion, could have issued a cease and desist order. Had the Board first determined whether a cease and desist order should issue the court would have had the benefit of its findings. It is also quite possible that the Board, by approving an order under Sections 408, 409 or 412 could materially change the position of the parties.
The appellant however chose to proceed in the courts rather than before the Board, and it did so with a complaint for damages which the majority, as I, have concluded is within the jurisdiction of the courts at least as far as damages are concerned. There is no sound reason why we should require the appellant to split his cause of action by obtaining a cease and desist order from the Board before coming into court to seek damages. Consequently I feel that, since the courts have jurisdiction to award damages, complete relief should be available to the appellant, and the request for an injunction should also be heard.
If an injunction is granted by the District Court neither the litigants nor the Board would find that they have been injured. While the injunction is outstanding, the court of course retains jurisdiction. If at
Consequently, I agree with the majority of this court that this case should be reversed and remanded. But I am also of the opinion that the appellant is entitled to have his complaint heard on its merits now and without resort to the Board.