endorsing General American approach in antitrust action upon primary jurisdiction referral to Civil Aeronautics Board
How later courts described this case
- endorsing General American approach in antitrust action upon primary jurisdiction referral to Civil Aeronautics Board
Written by the judges who cited it.
The opinion
CLARK, Circuit Judge
(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 *666 any time while the injunction is outstanding, the Board makes a determination which would materially alter the purpose and effect of the injunction either party can on application obtain a modification or termination of the injunction.
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.