Appendix — Diefenthal v. Civil Aeronautics Board

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APPENDIX A“

Stanley M. DIEFENTHAL and Elka F. Diefenthal,

Plaintiff-Appellants,

V.

CIVIL AERONAUTICS BOARD and

Eastern Airlines, Inc.,

Defendants-Appellees.

Stanley M. DIEFENTHAL and Elka F. Diefenthal,

Petitioners,

V.

CIVIL AERONAUTICS BOARD,

Respondent.

Nos. 80-3259, 80-3761.

United States Court of Appeals,

Fifth Circuit.

Aug. 6, 1982.

Airline passengers who were denied seats in smoking

section sued the Civil Aeronautics Board and the air car-

rier. The United States District Court for the Eastern

District of Louisiana, Morey L. Sear, J., dismissed, and

passengers appealed. Combined therewith was passengers’

petition for review of CAB order finding that regulating

smoking was within scope of the agency’s statutory

authority. The Court of Appeals, Clark, Chief Judge, held

that: (1) regulating smoking falls within requirement that

carrier provide adequate service“; (2) Airline Deregula-

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tion Act of 1978 did not abrogate authority to require car-

riers to provide nonsmoking areas; (3) there was no private

right of action to enforce requirement of “adequate

service’’; (4) even if an implied right of action exists under

the unjust discrimination provision, denying passengers

the right to smoke did not constitute such discrimination;

and (5) even if stewardess intended to humiliate plaintiffs

by brusquely telling them there were no vacant seats in the

smoking section the contract and tort claims did not meet

the $10,000 diversity jurisdiction threshold.

Affirmed.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Petition for Review of an Order of The Civil

Aeronautics Board.

Before CLARK, Chief Judge, GEE and GARWOOD,

Circuit Judges.

CLARK, Chief Judge:

Stanley and Elka Diefenthal appeal from the district

court’s order dismissing their claims against the Civil

Aeronautics Board (CAB) and Eastern Airlines. They also

petition for review of a CAB order finding that regulating

smoking was within the scope of its statutory authoriza-

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tion. We affirm.

The Diefenthals purchased first class tickets aboard

a flight from New Orleans to Philadelphia on Eastern

Airlines. They requested seats in the smoking section and

confirmed that their request was granted prior to depar-

ture. After they boarded the flight, the Diefenthals were

told that the smoking section in first class was filled and

that they would have to sit in a no-smoking area if they

wished to fly first class. The Diefenthals alleged that in in-

forming them that they could not smoke the flight atten-

dant treated them “brusquely,’’ causing them extreme em-

barrassment, humiliation and emotional distress.

This relatively trivial incident has given rise to a

spate of litigation. The Diefenthals brought suit in district

court to enjoin the CAB from enforcing its regulation re-

quiring that no-smoking areas be provided on aircraft, see

14 C.F.R. § 252 (1981), on the ground that the CAB lacked

statutory authority under the Federal Aviation Act (the

Act), 49 U.S.C. §§ 1301-1551,! to regulate this area. The

Diefenthals also sought an injunction to prevent Eastern

from implementing section 252 on the ground that the

regulation was invalid. Alternatively, if the regulation was

valid, the Diefenthals alleged that Eastern's refusal to

allow them to smoke contravened its own manual and

The Federal Aviation Act of 1958, pursuant to which the CAB

initially promulgated section 252, was substantially amended by the

Airline Deregulation Act of 1978, Pub.L.No. 95-504, 92 Stat. 1705.

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sought an injunction requiring compliance with the

manual. Finally, the Diefenthals alleged that Eastern had

breached its contract with them by denying them first

class seats in a smoking area and that it had tortiously em-

barrassed and humiliated them and deprived them of their

right to smoke on board the plane. Eastern moved to

dismiss the complaint for failure to state a claim on which

relief could be granted.

After holding a hearing on Eastern’s motion, the

district court rejected the Diefenthals’ request for injunc-

tive relief against Eastern. It found that there was neither

an express nor an implied private right of action under the

Act. Alternatively, the court found that if there were a

federal right of action, the Diefenthals were not entitled to

injunctive relief since they had failed to allege any threat of

irreparable injury.

The district court dismissed the Diefenthals’ con-

tract and tort claims for lack of diversity jurisdiction. With

respect to the contract claim, the district court found that

even though the parties were diverse, it could not con-

ceive by the wildest stretch of the imagination how there

could be $10,000.00 damage on the basis of what [the

Diefenthals] allege.”

With respect to the tort claim, it was developed that

the Diefenthals claim was based solely on Eastern's duty

to follow its manual. The Diefenthals argued that if

Eastern had correctly followed the seating procedures

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outlined in its manual, they would have been able to smoke

on board the flight. The district court dismissed this

theory apparently on the ground that it turned implicitly

on the existence of a private right of action. However, it

allowed the Diefenthals to amend their complaint to allege

that the actions of Easterns’ employees had tortiously

humiliated and embarrassed them. The court expressly

cautioned the Diefenthals that the jurisdictional amount

would again be in question. The court stated. you ought

to do something to satisfy me of that [the jurisdictional

amount] from the very beginning, because its tough to con-

ceive of the kind of damage you're talking about

The amended complaint alleged that an unknown

flight attendant ‘‘maliciously, and intentionally treated

plaintiffs in a manner calculated to cause plaintiffs serious

embarrassment and humiliation." Eastern moved to dis-

miss the complaint for of subject matter jurisdiction.

At a hearing on Easterns notion to dismiss, the district

court noted that the Diefenthals had not alleged any

physical or emotional damage or loss of reputation.

Although the Diefenthals never stated exactly what the

flight attendant had said, the court found that it could not

“conceive how being told, not matter how abruptly, that

you cannot smoke before the few passengers that are in the

first class cabin of an airplane can possibly, in the absence

of some [physical or emotional] damage ... entitle [the

Diefenthais} to $10,000.00.”

With respect to the Diefenthals’ claim that the CAB

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lacked authority to regulate smoking, the CAB moved to

dismiss the claim for lack of jurisdiction. The CAB argued

that section 1486 vests exclusive jurisdiction to review its

orders and regulations in the courts of appeals. See 49

U.S.C. § 1486. Alternatively, it claimed that a party must

seek review within 60 days after an order is issued, which

the Diefenthals had failed to do. The CAB noted, however,

that the Diefenthals could file a petition with it to

eliminate its smoking regulation and then seek review of

its order. The district court granted the CAB’s motion and

the Diefenthals then petitioned the CAB. They raised the

same argument they had attempted to present to the

district court, that in regulating smoking the CAB had ex-

ceeded its statutory authority.

[1] The CAB considered the Diefenthals request but

reaffirmed its authority to regulate this area. The CAB

noted that its regulation was based on two sections of the

Federal Aviation Act: section 1374, which requires each

carrier to provide adequate service, and section 1324,

which empowers the CAB to make such “rules and regula-

tions...as it shall deem necessary to carry out the provi-

sions of. this chapter. 2 It rejected the argument that the

adequate service provision only concerned the number

of flights a carrier provided and noted that this section had

also been construed to govern the type of service provided.

See Capital Airlines v. CAB, 281 F.2d 48 (D.C. Cir.1960).

2 The regulation specifies that it was promulgated under three sec-

tions of the Act; section 1324, section 1374 and section 1377. See 14

C.F.R. § 252. Section 1377 merely empowers the CAB to require the car-

riers to keep and submit records. It is not relevant to the Diefenthals

challenge.

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Moreover, the same phrase had been upheld as the

statutory basis for regulating smoking on board interstate

buses. See National Association of Motor Bus Owners v.

United States, 370 F.Supp. 408 (D.D.C.1974) (three judge

district court). Finally, the CAB noted that the regul. n,

which had been in effect since 1973, had been left intact by

the Airline Deregulation Act of 1978. The Diefenthals peti-

tioned for review of the CAB’s order” and consolidated

their petition with their appeal from the district court’s

order. We turn first to the petition for review.4

II

The Diefenthals do not claim that the CAB’s deci-

sion to regulate smoking was arbitrary or that the pro-

cedure employed by the CAB was flawed. Instead, they

argue that Congress did not authorize the CAB to regulate

3 ‘The Diefenthals petition us to review Order No. 80-8-80. After

this order was issued, the CAB decided to reconsider its authority to

regulate smoking. After notice and comment, it issued Regulation

ER-1245, which addresses both the CAB’s statutory authority and the

need for the regulation. ER-1245 reaffirms the decision reached in Order

No. 80-8-80. At oral argument before this panel, counsel for the CAB con-

ceded that ER-1245 did not assert any different rationale for the CAB’s

authority to regulate smoking.

Although the Diefenthals also appealed from the district court's

order dismissing their claim against the CAB, we do not reach the issue

of whether the district court had jurisdiction to review the CAB's regula-

tion. Because the petition for review presents the same arguments that

the Diefenthals attempted to raise before the district court, our review of

their petition obviates the need to consider their appeal.

The Diefenthals also argue that the CAB’s order violates the an-

tidiscrimination provisions of section 1374(b). Because Oder No. 80-8-80

indicates that they did not raise this issue before the CAB, they are

precluded from raising it here. See 49 U.S.C. § 1486(e).

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the kind or quality of service which a carrier provides. The

question to be answered is thus “not what the Board

thinks it should do but what Congress has said it can do.

CAB v. Delta Airlines, 367 U.S. 316, 322, 81 S.Ct. 1611,

1617, 6 L.Ed.2d 869 (1961). Because of the recent deregula-

tion of the airline industry, two issues are presented. First,

did the CAB have authority to regulate smoking under the

Federal Aviation Act of 1958. Second, if it had the authori-

ty, did the Airline Deregulation Act of 1978 undercut that

authority.

[2-4] When a party challenges an agency's determina-

tion that a regulation is necessary to carry out the provi-

sions of its enabling statute, the scope of our review is

limited. In Mourning v. Family Publications Service, 411

U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the Court

stated:

Where the empowering provision of a statute

states simply that the agency may make. such

rules and regulations as may be necessary to

carry out the provisions of this Act, we have

held that the validity of a regulation promulgated

thereunder will be sustained so long as it is

“reasonably related to the purposes of the enabl-

ing legislation.

Id. at 369, 93 S.Ct. at 1660-61 (footnote and citations omit-

ted). Even the absence of an express delegation of power to

regulate a particular area is not fatal to the validity of a

regulation so long as the regulation reasonably advances

the purposes of the enabling statute. See American Truck-

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ing Associations v. United States, 344 U.S. 298, 309-12, 73

S.Ct. 307, 314-15, 97 L.Ed. 337 (1953). To have found other-

wise would have defeated one of the reasons for which

agencies were created. It was precisely because Congress

could not be aware of the particular problems or needs that

would develop in an area that it delegated authority to the

agencies, within the broad confines of the statutory

scheme, to deal with these problems as they arose. See id.

at 309-10, 73 S.Ct. at 314.

[5] In the case at bar, the CAB grounded its regula-

tion in the language of the statute expressly requiring that

each certified carrier provide adequate service. 5 See 49

U.S.C. § 137 4a). On its face, this language supports the

CAB'’s regulation. Because the division of the interior of an

airplane into smoking and nonsmoking areas is one compo-

nent of the service to be provided by a carrier, the regula-

tion requiring it clearly appears to be reasonably related to

the purposes of the Act.

The Diefenthals contend, however, that the language

of the statute must be read in the context of the purposes

of the Act. They argue that in enacting the Federal Avia-

tion Act, Congress intended to commit only economic

regulation to the CAB and left the details of passenger ser-

vice and comfort to the managerial discretion of each air-

b Tie CAB also relied on the requirement that each carrier

establish just and reasonable practices. See 49 U.S.C. § 1374(a). In its

order reaffirming its authority, the CAB, however, stressed its reliance

on adequate service. Because we find that the adequate service pro-

vision is sufficient by itself to support the regulation, we do not consider

whether just and reasonable practices would also suffice.

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line. In support of their argument, the Diefenthals claim

that the CAB has interpreted the adequate service provi-

sion to refer only to the number of flights provided by a

carrier. Finally, the Diefenthals argue that other sections

of the Act, particularly section 1371(e)(4), preclude the

CAB from regulating the quality of service provided. We

disagree.

[6] The validity of the Diefenthals’ argument turns

initially on whether the phrase adequate service“ refers

only to the number of flights a carrier provides or includes

the type or quality of service as well. The phrase, however,

is not defined by the statute, see 49 U.S.C. § 1301, nor is

there any reference in the legislative history of the Act to

its specific meaning. The Diefenthals rely on the CAB’s in-

terpretation of this phrase to establish that it refers only to

the number of flights a carrier provides. While the Diefen-

thals are correct in stating that the CAB has found that

the number of flights scheduled is a component of ade-

quate service, that interpretation does not preclude the

phrase from aiso referring to the quality of service provid-

ed. Indeed, even if the CAB had previously stated that this

phrase referred exclusively to the number of flights

scheduled, the CAB is not prevented from reconsidering its

interpretation and reaching a contrary conclusion. See

American Trucking Associations v. United States, 344

U.S. at 314, 73 S.Ct. at 316; National Petroleum Refiners

Association v. FTC, 482 F.2d 672, 693-94 (D.C.Cir.1973),

cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567

(1974). In the case at bar, however, the CAB has consist-

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ently treated the quality of service as a component of ade-

quate service since 1973.

Other references to “‘service”’ in the Act indicate that

Congress intended the term to refer to both quantity and

the kind of service offered. Section 1371(e) provides that

each certificate granted shall specify the service to be

rendered and later refers to the type of service provided

therein. See 49 U.S.C. §§1371(e)(1) and (e)(6). In constru-

ing the same language in an analogous section of the Motor

Carrier Act. 5 Judge Learned Hand recognized that this

provision allowed the Interstate Commerce Commission

(ICC) to specify the quality of service which was to be

provided. See Crescent Express Lines v. United States, 49

F.Supp. 92, 94-95 (S.D.N.Y.) (three judge district court),

aff'd, 320 U.S. 401, 64 S.Ct. 167, 88 L.Ed. 127 (1943). Thus,

the district court in that case found that a carrier could not

change the type of sedan passenger service which it had

been authorized to perform. In upholding the district

court, the Supreme Court stated that the ability to specify

the service to be rendered necessarily included the power to

specify the general type of vehicle to be used. See Crescent

Express Lines v. United States, 320 U.S. at 408, 64 S.Ct. at

171. These opinions make clear that the service which a

carrier is required to provide is not limited to the number

of flights scheduled.

% U.S.C. $308 (amended version codified at 49 U.S.C. § 10922).

We have previously recognized that the regulatory section of the Federal

Aviation Act was modeled on the Interstate Commerce Act. We have

thus looked to the latter as a guide in interpreting Congress’ intent in

the Federal Aviation Act. See Transcontinental Bus System v. CAB, 383

F.2d 466, 480 (5th Cir. 1967).

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[7] The Diefenthals argue, however, that the

legislative history of the Act compels a different result.

They contend that Congress disclosed an intention to limit

the CAB’s regulatory authority to matters which affect the

economic stability of the industry, leaving the quality of

service to the managerial discretion of each airline. While

we agree that economic stability was a major purpose of

the Act, it was not the Act’s exclusive purpose. ’

Prior to the Act’s passage in 1938, the airline in-

dustry was in a state of flux.® Initially, airlines had

depended on contracts to carry the mail as their primary

source of revenue. The competition for these contracts,

which had been fierce, led to disastrously low bids by the

airlines and unstable economic conditions throughout the

indusiry. See H.Rep.No.2254, 75th Cong., 3d Sess. 2

(1938). This instability was heightened when the

Postmaster General abruptly cancelled all mail contracts

because of the discovery of fraudulent practices in their

procurement. Also contributing to the change in the in-

dustry was the fact that passenger service, which had in-

itially provided only a minor portion of the revenues, be-

7 Section 252 was promulgated pursuant to section 1374(a) of the

Federal Aviation Act of 1958. Because this section was a “reenactment

without substantive change” of the same section in the Civil

Aeronautics Act of 1938, see H.Rep.No.2360, 85th Cong., 2d Sess. 15

(1958), the legislative history of the 1938 Act provides the primary guide

to its meaning.

8 The following brief summary of the events preceding the

passage of the Federal Aviation Act is drawn primarily from Note,

Federal Regulation of Aviation, 60 Harv.L.Rev. 1235 (1947). See also

Westwood & Bennett, A Footnote to the Legislative History of the Civil

Aeronautics Act of 1938, 42 Notre Dame Law. 309 (1967).

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gan to play an increasingly greater role.

In 1934, Congress enacted the Air Mail Act to pro-

vide temporary relief for the airlines’ economic problems.

It recognized, however, that the industry was rapidly ex-

panding and that to ensure its growth, more comprehen-

sive measures were needed. It therefore established the

Federal Aviation Commission to study the entire industry

and to provide Congress with “recommendations of a

broad policy covering all phases of aviation and the rela-

tion of the United States thereto. See S.Doc.No.15, 75th

Cong., Ist Sess. 1 (1935).

The resulting study represented one of the first at-

tempts to formulate a comprehensive federal policy for the

airline industry. Not only did it recommend econo ic

regulation along the lines of that adopted in the motor car-

rier industry but it also sought to centralize into one new

agency the safety and other regulatory functions which

were then scattered among several federal agencies. See id.

at 7-39 ‘summarizing the Commission's recommendations).

In providing for the economic regulation of the industry,

the Commission envisioned that the new agency’s role in

specifying the service to be rendered by a carrier would go

beyond merely specifying the minimum number of flights.

The Commission recommended that:

[clertificates of convenience and necessity should

be issued under proper safeguards and specifica-

tions. Provision should be made to specify a

minimum quality of service and a minimum fre-

quency of schedule on airlines.

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The Commission recognized, however, that competi-

tion had been an important factor in achieving the quality

of service that American airlines then provided. See id. at

61-62. It chose not to recommend a national monopoly

airline since it believed that competition would spur the in-

dustry to provide better service in the future. See id. The

Commission thus appears to have envisioned that the new

agency would specify the minimum quality of service and

that competition would motivate the airlines to go beyond

that minimum. The Commission noted the difficulty of

striking the proper balance between competition and

regulation in the absence of practical experience. See id. at

62. It suggested that Congress articulate these divergent

goals and entrust their application to the new agency. See

id.

Congress appears to have adopted the Commission’s

suggestions almost verbatim. It provided that in exercis-

ing its duties the CAB should consider both “‘[t}he promo-

tion of adequate. service and ſelompetition to the extent

necessary to assure the sound development of an air-

transportation system... 49 U.S.C. §§ 1302(c) and (d).

Thus, even though Congress charged the CAB to consider

competition, it is clear from the legislative history that it

entrusted the CAB to specify the minimum quality of ser-

vice necessary to balance the need for regulation against

the benefit of competition.9

The importance of the Commission's study in shaping the

Federal Aviation Act is apparent from the degree to which the Act as

passed reflects the recommendations made by the Commission. The

Commission's influence has been frequently noted. See 42 Notre Dame

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The Diefenthals finally argue that section 1371(e)(4)

is a statutory bar to the regulation of smoking. This sec-

tion provides that the certificate issued by the Board may

not “restrict the right of an air carrier to add to or change

schedules, equipment, accommodations, and facilities for

performing the authorized transportation and service as

the development of the business...shall require. 49

U.S.C. § 1371(e)(4). The Diefenthals rely on Continental Air

Lines v. CAB, 522 F.2d 107, 115 (D.C.Cir.1974), for the pro-

position that this section was intended to preserve

management discretion over the kind and quality of service

offered. The difficulty with this argument, however, is that

Continental also recognized that no one section is an ab-

solute restriction on actions the Board may take to further

other statutory goals. Id. at 116. Thus, Continental did

not treat section 1371(e)(4) as a statutory restriction on the

Board’s power to regulate but instead considered it as an

aid in determining whether any regulation enacted was ar-

bitrary or capricious. See id. at 116-17. While Continental

indicates that the CAB may act arbitrarily by ignoring the

effect of competition on the service required to be provid-

ed, it does not support the Diefenthals’ argument that the

(Footnote 9 continued)

Law. at 326; 60 Harv.L.Rev. at 1249.

In this instance, the Commission’s report is the primary source of

gislative history. The Committee reports simply reiterate the language

of the Act. See H. Rep. No. 2254, 75th Cong., 3d Sess. 7 (1938) (This sec-

tion imposes a duty ... to provide adequate service’’); H.Rep.No. 2635,

75th Cong., 3d Sess. 24 (1938) (Conference Report) (same). During the

debate on the bill, neither house discussed this section. The debate dealt

primarily with the organization of the agency—whether it should be

separate or part of the ICC—and the clause grandfathering in existing

carriers. See 83 Cong.Rec. 6847-69, 7064-7104 (1938).

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CAB lacked the statutory authority to promulgate the

regulation in the first instance.

This interpretation of section 1371(e)(4) is consistent

with the Supreme Court’s interpretation of an analogous

section of the Motor Carrier Act. 10 See Crescent Express

Lines v. United States, 320 U.S. 401, 407-09, 64 S.Ct. 167,

170-71, 88 L.Ed. 127. In Crescent, the Court noted that this

section was added to the Motor Carrier Act to allay fears

that certification would thwart the natural growth of

regulated businesses. See id. at 407 n.6, 64 S.Ct. at 170 n.6

(quoting Senator Wheeler’s explanation of this section).

The concern was that once a carrier was certified it would

have to reapply to the ICC every time it sought to expand

or change the details of its business. See id. The Court thus

found that this section did not prevent the ICC from speci-

fying the kind of service that was to be provided. It merely

allowed a carrier to add to the service already certified. See

id. at 407-08, 64 S.Ct. 170-71.

[8] The Supreme Court’s analysis indicates that, con-

trary to the Diefenthals’ argument, section 1371(e)(4) was

not intended to lay out areas of agency responsibility.

Clearly, it does not prohibit CAB’s regulation of the quali-

ty of service provided. Rather, the section does no more

than recognize that an airline need not submit for agency

approval every addition to or change in its service, con-

10 See 49 U.S.C. § 308 (amended version codified at 49 U.S.C. §

10932(d)). This section provided that no terms, conditions, or limita-

tions shall restrict the right of a carrier to add to his or its equipment

and facilities over the routes...specified in the certificate, as the develop-

ment of the business and the demands of the public shall require.

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sistent with that already certified, to the CAB for ap-

proval. Although the Act contains other provisions which

recognize the importance of competition, see 49 U.S.C. §

1302, this is not one of them and does not bar the regula-

tion issued here.

Although we conclude that the CAB clearly had the

power under the Federal Aviation Act of 1958 to require

carriers to provide nonsmoking areas, this conclusion does

not end our inquiry. We must still determine whether the

Airline Deregulation Act of 1978 was intended to deny the

CAB the authority to regulate the minimum quality of ser-

vice to be provided.

[9] The Airline Deregulation Act eliminated many of

the requirements that had previously been placed on car-

riers and thus limited the CAB’s authority to regulate with

respect to those requirements. See § 1601(a)(2) (codified at

49 U.S.C. § 1551(a\(2). Although Congress deleted almost

all of section 1374, it specifically retained that portion of

the section which requires air carriers to provide safe and

adequate service. See § 1601(a)(2)/B). The fact that Con-

gress retained this one provision suggests that it intended

to preserve both this requirement and the CAB’s power to

regulate this area.

This interpretation is consistent with the legislative

history. In considering the need for deregulation, Congress

was specific in pointing out the failings of the regulatory

system. It noted that the CAB had consistently denied ap-

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plications for new routes, refused to allow new carriers to

enter the trunkline industry and discouraged the use of ex-

perimental discount fares. See H.Rep.No.1211, 95th Cong.

2d Sess. 2, reprinted in 1978 U.S.Code Cong. & Ad.News

3737, 3738. It also criticized the certification procedure

developed by the CAB as time consuming and expensive.

See id. Congress did not, however, eviticize the CAB’s

regulation of the quality of service provided or, specifical-

ly, its well-known regulation of smoking. Thus, neither the

language of the Act, as amended, nor the legislative

history suggests any intent to deny the CAB’s power to

regulate adequate service.

The Diefenthals argue, however, that the public in-

terest factors which Congress directed the CAB to con-

sider in promulgating regulations show that the CAB lacks

the power to regulate the quality of service. They note that

the CAB should consider the ‘encouragement, develop-

ment and maintenance of an air transportation system

relying on actual and potential competition...to determine

the variety, quality and price of air transportation

services. See § 3(a) (amending 49 U.S.C. § 1302). The

Airline Deregulation Act, however, also requires the CAB

to consider the development and maintenance of a sound

regulatory environment and the availability of a variety

of adequate, economic, efficient and low-price services by

air carriers. Id. These factors do not indicate that Con-

gress intended to deny the CAB authority to regulate the

quality of service provided. Congress struck a new balance

between competition and regulation; it intended for the

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CAB to rely whenever possible on the marketplace to

determine the quality of service that would be provided.

The fact that Congress struck a new balance does not sug-

gest that it intended to prevent the CAB from regulating

the quality of service, only that it intended for the CAB to

evaluate the need for regulation in a new light. The issue of

whether the CAB has chosen wisely in light of this new

balance is not before us. The Diefenthals have challenged

the CAB’s power to regulate, not its choice.

The district court dismissed the Diefenthals’ claims

for injunctive relief against Eastern on the ground that

they did not have an implied private right of action under

the Federal Aviation Act. The Diefenthals argue that they

established an implied right of action by showing that they

met the factors noted in Cort v. Ash, 422 U.S. 66, 95 S.Ct.

2080, 45 L.Ed.2d 26 (1975). We disagree.

In Cort v. Ash, the Supreme Court rejected the com-

mon law presumption that the mere violation of a statute

entitled the injured party to redress his grievances

through a private suit in federal court. Middlesex County

Sewerage Authority v. National Sea Clammers Associa-

tion, 453 U.S. 1, 25, 101 S.Ct. 2615, 2629, 69 L.Ed.2d 435

(1981) (Stevens, J., concurring in part and dissenting in

part); Touche Ross & Co. v. Redington, 422 U.S. 560, 568,

99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). Instead of

presuming an implied cause of action from the fact of a

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violation, the Court recognized that the necessary inquiry

was whether Congress intended to allow private litigants

to enforce the statute or to seek damages for its breach.

See Touche Ross & Co. v. Redington, 422 U.S. at 468, 99

S.Ct. at 2479.

Congress of course can make its intent clear by ex-

pressly providing a cause of action. However, even if it fails

to provide an express private right of action, the Court has

identified certain factors which indicate Congress’ intent

to provide an implied private right of action:

First, is the plaintiff one of the class for whose

especial benefit the statute was enacted,’’—that

is, does the statute create a federal right in favor

of the plaintiff? Second, is there any indication of

legislative intent, explicit or implicit, either to

create such a remedy or to deny one? Third, is it

consistent with the underlying purposes of the

legislative scheme to imply such a remedy for the

plaintiff? And finally, is the cause of action one

traditionally relegated to state law, in an area

basically the concern of the States, so that it

would be inappropriate to infer a cause of action

based solely on federa! law?

Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088 (citations omit-

ted). Although these four factors remain the benchmark for

determining the intent of Congress, their aid in revealing

that intent varies with each statute to which they are ap-

plied. See Touche Ross & Co. v. Redington, 422 U.S. at

575-76, 99 S.Ct. at 2489.

A-21

We need not consider whether a private right of ac-

tion exists with respect to the Diefenthals’ first claim for

injunctive relief. The Diefenthals contend that they are en-

titled to enjoin Eastern from implementing section 252 on

the ground that the CAB’s lack of authority to regulate

smoking rendered the regulation invalid.11 We have,

however, already considered this argument and rejected it.

Alternatively, the Diefenthals claim that even if the

regulation is valid Eastern has failed to comply with its

own manual. They thus seek an injunction requiring com-

pliance in the future. Although the Diefenthals do not

specify what particular provision of the statute they are

seeking to enforce, there appear to be two possible provi-

sions, sections 1374(a) and 1374(b).

Eastern’s manual was adopted pursuant to 14 C. F. R.

§ 252.3, which in turn was adopted pursuant to section

1374(a). The Diefenthals’ argument appears to be that sec-

tion 1374(a) and section 252 require each carrier to comply

with the manual promulgated thereunder. Because Con-

gress did not provide an express right of action to enforce

either section 1374(a) or section 252, we must determine

11 In response to Eastern’s first motion to dismiss, the Diefen-

thals argued that they had a private right of action emanating from 49

U.S.C. §§ 1324, 1374 and 1377 and the regulations promulgated pur-

suant to these statutes. The emanation which the Diefenthals seek to

enforce was never specified. However their reference to the sections the

CAB relied on in promulgating section 252 indicates the basis of their

argument is that the CAB exceeded its authority in promulgating sec-

tion 252. At oral argument before this panel, counsel for the Diefenthals

conceded that the validity of this claim depended on the validity of the

claim raised in their petition for review.

A-22

whether Congress intended to imply a private right of ac-

tion. See Cort v. Ash, supra.

[10] The first factor noted in Cort was whether the

plaintiffs were members of a class for whose special benefit

the statute was created. Section 1374(a), however, does not

provide protection for any particular class of persons. It re-

quires as a general matter that the airlines maintain a cer-

tain level of service. The Court has recognized that phras-

ing a statute in general terms rather than specifically iden-

tifying the benefitted class indicates a lack of intent to

create a private right of action. See California v. Sierra

Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d

101 (1981); Cannon v. University of Chicugo, 441 U.S. 677,

690-93, 99 S.Ct. 1946, 1954-55, 60 L.Ed.2d 560 (1979).

The Diefenthals argue, however, that in implemen-

ting Congress’ policies, the CAB identified smokers as a

class whom Congress intended to benefit. They note that

section 252 expressly refers to smokers and provides for

the creation of both smoking and nonsmoking areas. Ever.

if we assume that the CAB’s actions are indicative of Con-

gres’ intent, the Diefenthals’ argument lacks merit. Sec-

tion 252 only requires carriers to protect the interests of

non-smoking passengers. See 14 C.F.R. §§252.2-252.3

(1981). The regulation expressly provides that ‘‘[njothing in

this regulation shall be deemed to require such carriers to

permit the smoking of tobacco aboard aircraft.’’ 14 U.S.C.

§ 252.1 (1981). The regulation thus makes clear that it was

A-23

enacted to control smokers, not to benefit them.

[11] With respect to the second factor noted in Cort,

there is evidence of legislative intent to deny a private

right of action under section 1374(a). In section 1007 of the

Act, Congress provided an explicit enforcement scheme.

See 49 U.S.C. § 1487. Section 1487 authorizes the Board to

seek injunctive relief to enforce any provision of the Act. It

further authorizes the Attorney General to seek an injunc-

tion for the violation of section 1514 and expressly grants a

private right of action to any party in interest to seek an

injunction for a violation of section 1371(a). When Con-

gress has established a detailed enforcement scheme,

which expressly provides a private right of action for viola-

tions of specific provisions, that is a strong indication that

Congress did not intend to provide private litigants with a

means of redressing violations of other sections of the Act.

See Middlesex County Sewerage Authority v. National Sea

Clammers, 453 U.S. 1, 13, 101 S.Ct. 2615, 2623, 69 L.Ed.2d

435 (1981).

The Diefenthals’ support this point only by citing

cases which have found an implied private right of action

to enforce the antidiscrimins.tion provision of section

1374(b). These cases are unpersuasive for two reasons.

First, the existence of a private right of action under sec-

tion 1374(b) does not necessarily indicate that Congress

meant to provide a private right of action under section

1374(a). Second, the cases which the Diefenthals cite were

all decided prior to Cort v. Ash. Rather than seeking to

A-24

determine Congress’ intent, these cases relied on the com-

mon law presumption that an injured party was presumed

to have a right of action.!2 See Merrill Lynch, Pierce, Fen-

ner & Smith v. Curran, __ U. S.. 102 S.Ct. 1825, 1837,

72 L. Ed. 2d 182 (1982); id. at , 102 S.Ct. 1849 (Powell, J.,

dissenting). As such, their holdings are not indicative of

the inquiry into Congress’ intent which Cort v. Ash re-

quires that we make.

With respect tc the third factor noted by Cort, gran-

ting a private right of action to seek compliance with the

Act would not advance the legislative goal of providing

adequate service. The CAB already possesses the power to

require compliance with the Act and has developed an ex-

12 Fitzgerald v. Pan American Airlines, 229 F. 2d 499 (2d Cir.

1956), was the first case to find a private right of action to enforce sec-

tion 1374(b). Fitzgerald expressly relied on the common law presumption

that the violation of a statute entitled the person harmed to enforce the

statute. See id. at 501. Other courts, which found an implied right of ac-

tion under section 1374(b) r to Cort v. Ash, have either relied on Fit-

zgerald or adopted similar reasoning. See, eg. Nader u. Alleghany

Airlines, 512 F.2d 527, 537 (D.C.Cir.1975) (relying on Fitzgerald), rev'd

on other grounds, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976);

East Haven u. Eastern Airlines, 282 F.Supp. 507 (D. Conn. 1968) (relying

on Fitzgerald); Wills v. Trans World Airlines, 200 F.Supp. 360

(S.D.Cal.1961) (relying on Fitzgerald).

Since Cort v. Ash, some courts have continued to recognize a

private right of action. See Smith v. Piedmont Aviation, 567 F.2d 290

(5th Cir. 1978) (upholding damages for bumping without discussing the

existence of a private right of action). The majority of circuits have

found the’. a private right of action does not exist. See Kodish u. United

Airlines, 628 F.2d 1301, 1302-03 (10th Cir. 1980); Caceres Agency v.

Trans World Airways, 594 F.2d 932, 933 (2d Cir. 1979) (denying travel

agents right of action); Mason v. Belieu, 543 F.2d 215, 221 (D.C.Cir.

1976) (denying person at information counter right of private action);

Polansky v. Trans World Airlines, 523 F. 2d 332 (3rd Cir. 1975) (denying

tour members right of action).

A-25

tensive enforcement division. See 49 U.S.C. § 1487;

Diederich, Protection of Consumer Interests Under the

Federal Aviation Act, 40 J. Air L. & Com. 1, 15-26 (1974)

(describing CAB enforcement procedures). The CAB’s

power to seek injunctive relief is thus more than adequate

to cure egregious instances of noncompliance, such as a

carriers refusal or consistent failure to comply with a

regulation.

The only instances in which a private right of action

might supplement rather than duplicate the CAB’s efforts

would be those cases where the violation was too infre-

quent or too sporadic for the CAB to act. However, in such

cases injunctive relief is unnecessary. Cf. Hecht Co. v.

Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944).

[12] The final factor noted by Cort was whether the

issue were one normally committed to state law. Although

the duty to provide adequate service does derive solely

from federal law, this factor by itself is insufficient to

counter the strong indication provided by the first three

factors that Congress did not intend to create a private

right of action to enforce section 1374(a).

Alternatively, the Diefenthals argue that a private

right of action exists under section 1374(b), which pro-

hibits an air carrier from subjecting any particular per-

son...to any unjust discrimination...in any respect what-

soever.”” See 49 U.S.C. § 1374(b). The Diefenthals claim

that they were discriminated against Ly Eastern-with re-

A-26

spect to other smokers. Other passengers on board the

Eastern flight were allowed to smoke while the Diefenthals

were denied the right to do so, allegedly in violation of

Eastern’s manual.

[13] This circuit has implicitly recognized a private

right of action under section 1374(b). See Smith v. Pied-

mont Aviation, 567 F.2d 290 (5th Cir. 1978) (upholding an

award of damages under § 1374(b) without discussing the

existence of a private right of action). However, even if an

implied right of action exists under section 1374(b), deny-

ing the Diefenthals the right to smoke did not constitute

discrimination within the meaning of this section.

[14,15] Section 1374(b) has been recognized to pro-

hibit the granting of preferential and discriminatory rates,

the denial of access to flights and terminals on the basis of

race and the practice of ‘‘bumping”’ passengers in violation

of established policies. See Mason v. Belieu, 543 F.2d 215,

219 (D.C.Cir.), cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50

L.Ed.2d 127 (1976); Polansky v. Trans World Airlines, 523

F. 2d 332, 335-36 (3d Cir. 1975). In Polansky, the Third Cir-

cuit recognized, however, that every difference in treat-

ment by an airline does not constitute discrimination. 13.

13 The court in Pola, ky treated the question of whether the

statute had been violated as indicative of whether the statute had been

enacted for the special benefit of a particular class. See 523 F.2d at

335-36. What conduct a statute forbids, however, is analytically

separable from whether Congress enacted the statute for the special

benefit of a particular class. See Cannon v. University of Chicago, 441

U.S. 677, 690-93, 99 S.Ct. 1946, 1954-55, 60 L.Ed.2d 560 (1979). In-

troducing the question of a violation into the private-right-of-action

analysis poses a danger that a court will lapse back into the common law

A-27

It found that section 1374(b) was only intended

to protect the right of access to air facilities from

discriminatory interference by the air

carrier....[I}t is this denial of access to air

facilities, whether caused directly, by outright

refusal of permission to board, or indirectly, by

burdening the potential user with special re-

quirements not applied to the general public,

which is critical.

523 F.2d at 335-36 (emphasis in original). Thus, Polansky

found that the provision of first-class hotel accommoda-

tions which were inferior to the tourist-class accommoda-

tions provided by an airline tour was simply not the kind of

discrimination that the Act was designed to prohibit. We

agree with the Third Circuit’s reasoning.

In the case at bar, the Diefenthals were not denied

access to Eastern’s flight from New Orleans to

Philadelphia. They were simply unable to smoke while

seated in the first class section of the flight. Were we to

recognize the Diefenthals’ claim that Eastern's alleged

failure to comply with its manual constituted discrimina-

(Footnote 13 continued)

presumption that a violation alone implies a private right of action.

While we agree with the Third Circuit's interpretation of the scope of the

statute, we prefer to treat the issue of violation separately from the issue

of a cause of action.

We do not suggest that either ad hoc intentional racial or similar

class-based discrimination, or discriminatory general airline rules,

respecting in-flight service or accommodations, could not be the subject

of a private cause of action under section 1374(b). The case before us

presents nothing of this kind.

A-28

tion, every failure to treat each passenger similarly could

become a violation of the Act. For example, an airline's

manual might require that it stock a certain number of

cans of a brand of soft drink on each flight. If an airline in-

advertently failed to stock enough of brand A and forced

an unwilling passenger to drink brand B, the aggrieved

passenger would, under the Diefenthals’ theory, be able to

sue because he was discriminated against with respect to

all other brand A drinking passengers. This is simply not

the kind of discrimination Congress intended to prevent.

IV

The district court dismissed the Diefenthals’ con-

tract and tort claims against Eastern for lack of diversity

jurisdiction. Even though the parties were diverse, the

court found that it could not conceive how the inquiries

alleged satisfied the requisite $10,000 limitation. See 28

U.S.C. § 1332. The Diefenthals argue that because their re-

quest for $50,000 in damages was made in good faith the

district court had jurisdiction. We disagree.

Before considering the merits of the Diefenthals’

argument, it is important to review the allegations made in

their complaint. The plaintiffs initially alleged only that

the stewardess had brusquely informed them that there

were no vacant seats in the first-class smoking section.

Because of her manner, they claimed that they were

damaged. embarrassed, humiliated and were deprived of

their right to smoke during said flight. During the first

A-29

hearing on Eastern’s motion to dismiss, the district court

judge told the Diefenthals’ counsel that he doubted highly

that the damages alleged amounted to $10,000. When the

judge allowed the Diefenthals to amend their complaint, he

expressly advised their counsel that “you ought to do

something to satisfy me of [the jurisdictional amount] from

the very beginning, because its tough to conceive of the

kind of damage you're talking about.

The amended complaint alleged only that a flight at-

tendant maliciously and intentionally treated plaintiffs in

a manner calculated to cause plaintiffs serious embarrass-

ment and humiliation. No physical contact was asserted.

The complaint did not allege that any physical or emo-

tional impairment or loss of reputation resulted from the

stewardess’ actions, nor did it seek punitive damages. It

simply alleged that the stewardess’ remarks were brusque

and intentional and that they had resulted in $50,000

worth of humiliation. When Eastern moved to dismiss for

lack of jurisdiction, the Diefenthals did not attempt to sup-

port th ir complaint with affidavits which may have

revealed some factual basis of their claim for damages.

They simply rested on the unsupported allegation that the

stewardess’ actions humiliated them.

[16] In St. Paul Mercury Indemnity Co. v. Red Cab

Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845

(1938) (footnotes omitted), the Court stated:

The rule governing dismissal for want of jurisdic-

tion in cases brought in the federal court is that,

A-30

unless the law gives a different rule, the sum

claimed by the plaintiff controls if the claim is ap-

parently made in good faith. It must appear to a

legal certainty that the claim is really far less

than the jurisdictional amount to justify

—

The Court, however, also noted that the party invoking the

court’s jurisdiction bears the burden of alleglingl with

sufficient particularity the facts creating jurisdiction’’ and

of ‘‘support{ing] the allegation” if challenged. See id. at 287

n.10, 58 S.Ct. at 590 n.10 (citing McNutt v. General Motors

Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); see

generally Wright & Miller, federal Practice and Procedure

§ 3702. In order to meet this burden, a party may amend

the pleadings, as was done in this case, or may submit af-

fidavits. See Wright and Miller at § 3702. This procedure

provides a court with a basis for making a threshold deter-

mination as to whether the jurisdictional amount has been

satisfied.

[17,18] In establishing the jurisdictional amount,

Congress intended to set a figure not so high as to convert

the Federal Courts into courts of big business nor so low as

to fritter away their time in the trial of petty

controversies. Sen. Rep. No. 1830, 85th Cong., 2d Sess.,

reprinted in 1958 U.S. Code Cong. & Ad.News 3099, 3101

(explaining the $10,000 threshold figure). While a federal

court must of course give due credit to the good faith

claims of the plaintiff, a court would be remiss in its obliga-

tions if it accepted every claim of damages at face value, no

matter how trivial the underlying injury. This is especially

A-31

so when, after jurisdiction has been challenged, a party has

failed to specify the factual basis of his claims. Jurisdiction

is not conferred by the stroke of a lawyer's pen. When

challenged, it must be adequately founded in fact.

[19-21] In the case at bar, the only specific factual in-

cident alleged was that the stewardess had brusquely told

the Diefenthals that there were no vacant seats left in the

first-class smoking section. The amended complaint merely

alleged that the stewardess had intended to humiliate the

plaintiffs. It failed to demonstrate how the Diefenthals had

suffered anything more than a trivial loss. Even though

the Diefenthals were aware that both the court and

Eastern questioned the factual basis of their damage claim,

they wholly failed to specify that basis. 1“

To a legal certainty, the brusque refusal by a

stewardess to permit a passenger to sit in a particular

smoking section, even a refusal the requesting passenger

asserts was intended to “humiliate,” will not justify a

damage claim of $10,000.15 This aspect of the suit is

precisely the

14 At the hearing on Eastern's second motion to dismiss, counsel

for the Diefenthals suggested that other tortious conduct had occurred.

In responge to the district court’s statement. I don’t know what it is

this lady said to your people, counsel replied, ‘Well, basically, it was

the confrontation that took place after the smoking incident, the way we

were treated. Mr. and Mrs. Diefenthal were treated in a manner such to

create a tort. This elliptical, unsupported reference was the first and on-

ly suggestion that any other offensive conduct had occurred. It was in-

sufficient to provide support for the Diefenthals’ claim for damages.

15 Each of the Diefenthals may aggregate his tort and contract

claims in order to satisfy the $10,000 jurisdictional minimum. See

A-32

kind of “petty controversy that Congress intended the

jurisdictional amount to exclude from federal

jurisdiction. 16

In sum, the party invoking the court’s jurisdiction

has the burden of establishing the factual basis of his claim

by pleading or affidavit. This allows the court to test its

jurisdiction without requiring the expense and burden of a

full trial on the merits. The Diefenthals were put on notice

both by the court’s own statements and by Eastern’s mo-

tion to dismiss for lack of jurisdiction, that they needed to

show some basis for the amount of damages they claimed.

They failed to do so and the district court properly dismiss-

ed their claims.

AFFIRMED.

(Footnote 15 continued)

Edwards v. Bates County, 163 U.S. 269, 16 S.Ct. 967, 41 L.Ed. 155

(1896). However, because the claims are separate and distinct as to each

plaintiff, the two plaintiffs may not add their own individual claims

together in order to reach the jurisdictional minimum. See Snyder v.

Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969).

In arguing that each of them has satisfied the $10,000 amount in

assume that they are entitled to recover the full price of their airfare

under the contract claim, we still find that the jurisdictional amount was

not satisfied.

16 At oral argument, the Diefenthals’ counsel was hardpressed to

explain how the jurisdictional amount was satisfied in this case. His

argument rested almost solely on a plea to permit the Diefenthals to

prove their claim in court.

A-33

APPENDIX “B”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

STANLEY M. DIEFENTHAL and

ELKA F. DIEFENTHAL CIVIL ACTION

versus NO. 79-1724

THE CIVIL AERONAUTICS BOARD SECTION “G” (4)

and EASTERN AIRLINES, INCORPORATED

Filed Sept. 12, 1979

JUDGMENT

The Court having considered the Motion to Dismiss

submitted on behalf of the defendant, the Civil

Aeronautics Board, the pleadings submitted and ap-

plicable law, and having determined that this Court lacks

jurisdiction,

IT IS ORDERED that judgment is granted in favor

of the Civil Aeronautics Board, dismissing plaintiffs’ com-

plaint without prejudice.

New Orleans, Louisiana, this 11 day of September,

1979.

UNITED STATES DISTRICT JUDGE

A-34

APPENDIX “C”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

STANLEY M. DIEFENTHAL, ETAL. CIVIL ACTION

vs NO. 79-1724

THE CIVIL AERONAUTICS BOARD,

ET AL. SECTION “G”

JUDGMENT

The Court having on January 30, 1980, granted the

defendant, Eastern Airlines, Inc. motion to dismiss amend-

ed complaint and on August 30, 1979, granted the defen-

dani, The Civil Aeronautics Board motion to dismiss for

lack of jurisdiction;

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment in favor of defendants, The Civil

Aeronautics Board and Eastern Airlines, Inc. and against

plaintiffs Stanley M. Diefenthal and Elka F. Diefenthal,

dismissing plaintiffs’ suit at their cost.

Dated at New Orleans, Louisiana, this 25th day of

February, 1980.

NELSON B. JONES, CLERK

APPROVED AS TO FORM:

UNITED STATES DISTRICT JUDGE

A-35

APPENDIX “D”

STATUTES AND REGULATIONS

49 U.S.C. 1301-1551—The Federal Aviation Act (Since this

Act is quite lengthy, only the pertinent sections are

quoted.)

1324(a) PERFORMANCE OF ACTS; CONDUCT

OF INVESTIGATIONS; ORDERS, RULES,

REGULATIONS AND PROCEDURE [Referred

to as Section 204(a)}

(a) the Board is empowered to perform such acts,

to conduct such investigations, to issue and

amend such orders, and to make and amend such

general or special rules, regulations, and pro-

cedure, pursuant to and consistent with the pro-

visions of this chapter, as it shall deem necessary

to carry out the provisions of, and to exercise and

perform its powers and duties under, this

chapter.

1371 TERMS, CONDITIONS, AND LIMITA-

TIONS [Referred to as Section 401(e)(4)]

(4) No term, condition, or limitation of a cer-

tificate shall restrict the right of an air carrier to

add to or change schedules, equipment, accom-

modations, and facilities for performing the

authorized transportation and service as the

development of the business and the demands of

the public shall require; except that the Board

may impose such terms, conditions, or limitations

in a certificate for supplemental air transporta-

tion when required by subsection (d)(3) of this

section.

A-36

1374(b) RATES FOR CARRIAGE OF PER-

SONS AND PROPERTY; DUTY TO PROVIDE

SERVICE; RATES AND DIVISIONS; FOR-

EIGN AIR TRANSPORTATION RATES;

DISCRIMINATION [Referred to as Sections

404(a) and 404(b)}

(a1) It shall be the duty of every air carrier to

provide and furnish interstate and overseas air

transportation, a authorized by its certificate,

upon reasonable request therefor and to provide

reasonable through service in such air transporta-

tion in connection with other air carriers, to pro-

vide safe and adequate service, equipment, and

facilities in connection with such transportation;

to establish, observe, and enforce just and

reasonable individual and joint rates, fares, and

charges, and just and reasonable classifications,

rules, regulations, and practices relating to such

air transportation; and, in case of such joint

rates, fares, and charges, to establish just,

reasonable, and equitable divisions thereof as bet-

ween air carriers participating therein which shall

not unduly prefer or prejudice any of such par-

(2) It shall be the duty of every air c#rrier and

foreign air carrier to establish, observe, and en-

force just and reasonable and individual and joint

fares, and charges, and just and reasonable class-

ifications, rules, regulations, and practices

relating to foreign air transportation; and, in case

of such joint rates, fares, and charges, to

establish just, reasonable, and equitable divisions

thereof as between air carriers or foreign air car-

riers participating therein which shall not unduly

prefer or prejudice any of such participating air

carriers or foreign air carriers.

A-37

(b) Ne air carrier or foreign air carrier shall make,

judice or disadvantage in any respect what-

soever.

14 C.F.R. 252—Smoking Aboard Aircraft

§ 252.1 Applicability.

This part establishes rules for the smoking of

tobacco aboard aircraft. It applies to «ii opera-

tions of direct air carriers, except on-demand ser-

vices of air taxi operators, with aircraft designed

to have a passenger capacity of more than 30

seats. Nothing in this regulation shall be deemed

to require carriers to permit the smoking of

tobacco aboard aircraft.

§ 252.2 No-smoking sections.

(a) Except as provided in paragraph (b) of this sec-

tion, air carriers shall upon request give each

passenger a no-smoking seat and to that end shall

provide at a minimum;

(1) A no-smoking area for each class of service and

for charter service;

(2) A sufficient number of seats in the no-smoking

sections of the aircraft for all persons who wish to

be seated there; and

(3) Expansion of no-smoking sections to meet

passenger demand.

A-38

(b) On flights for which passengers may make

confirmed reservations and on which seats are

assigned before boarding, an air carrier need not

provide a seat in a no-smoking section to a

passenger who has not met the carrier’s re

quirements as to time and method of obtaining a

seat on the flight, or who does not have a confirm-

ed reservation. If a seat is available in the

established no-smoking section, however, a car-

rier shall seat there any enplaning passenger who

so requests, regardless of boarding time or reser-

vation status.

§ 252.3 Enforcement.

Each air carrier shall take such action as is

necessary to ensure that smoking is not permit-

ted in no-smoking sections and to enforce its rules

with respect to the separation of passengers in

smoking and no-smoking areas.

§ 252.4 Waivers.

Air carriers may file with the Board’s Docket sec-

tion applications for waivers of one or more of the

requirements of this part, in order to experiment

with other methods of achieving the public policy

objectives of this part.