Petition for Writ of Certiorari — Cramer v. Skinner
Supreme Court brief1991
Ask Donna
What actually matters in this document.
Text
=
91 al | 12 Supreme Court, U.S.
FivcED
vuL 18 199)
No. p FICE Gr THE CLERK
Inu the Supreme Court of the United States
OCTOBER TERM, 1991
BUDDY CRAMER, PETITIONER
U.
SAMUEL K. SKINNER, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
David J. Gallo
Counsel of Record
5910 North Central, Suite 1150
Dallas, Texas 75206
(214) 891-6628
QUESTIONS PRESENTED
1. Whether the Wright Amendment, which, inter
alia, prohibits airlines from permitting passengers to
travel between Love Field Airport in Dallas, Texas
(“Love Field”) and points beyond the borders of
certain enumerated states (“Restricted Borders”)
without such passengers, (1) changing aircraft at
some intermediate airport located between the
Restricted Borders and Love Field (“Intermediate
Airport”), (2) claiming their luggage at such
Intermediate Airport and then rechecking it to their
final destination, and (3) purchasing two separate
tickets (which may not be sold at a discounted total
price), impermissibly abridges fundamental rights of
interstate travel.
2. Whether the Wright Amendment, which, inter
alia, forbids airlines and travel agents from, (1)
advertising indirect service between Love Field and
points which lie beyond the Restricted Borders, (2)
publishing materials designed to facilitate
connections at Intermediate Airports by those who
travel between Love Field and points which lie
beyond the Restricted Borders, or (3) stating as a
single sum the cost of transportation between Love
Field and points which lie beyond the Restricted
Borders, impermissibly abridges freedom of speech.
3. Whether the Wright Amendment, which, inter
alia, requires that passenger aircraft traveling
between Love Field and points which lie beyond the
Restricted Borders land at an Intermediate Airport
between Love Field and the Restricted Borders prior
to completing their journeys, violates the Port
Preference Clause.
()
(il)
PARTIES TO THE PROCEEDINGS
The petitioner is Buddy Cramer.
The respondents are Samuel K. Skinner, as
Secretary of Transportation; the United States
Department of Transportation; John V. Coleman, as
Director of the Office of Aviation Analysis; the Office
of Aviation Analysis; the United States of America;
Safe Airspace for Everyone; David L. Zacharias;
Russell J. Jewert; Kenneth G. Korges; Rudolph S.
Longoria; and Joyce C. Lockley.
TABLE OF CONTENTS
Page
eg aca ee ea carne ¥wteseveovess l
aided ae veces tee tense ees l
STATUTORY AND REGULATORY PROVISIONS INVOLVED . 2
Wee e eet esnesenenveses 2
REASONS FOR GRANTING THE PETITION ............... 10
en eee avaaceucvscvceses 10
CR we oe, 14
eS aden ag eb 9604 ee e's 15
B. The Court of Appeals has Failed to Apply the
Doctrine of Central Hudson, Posadas, and Board
A 17
1. Substantial Interest Criterion ............... 18
2. Direct Advancement Criterion .............. 19
a 21
Et 8 | 22
A. Preferential Regulation Sub-clause .............. 23
B. Enter or Clear Sub-clause ....................-. 24
ee ears ew odes coke ve eeees's 29
Ce cc ny ots cas sek eee vee ene he la
NN as he dig ddivaessndevewene 36a
eke ech kGevse dessa ersoneee si 38a
I OS 62a
TABLE OF AUTHORITIES
Cases:
Alabama Great Southern R.R. v. United States, 340 US.
ass eae obs et se ew es oe 24,25
aly)
Cases—Continued: Page
Armour Packing Company v. United States, 209 U.S. 56
SRR Ree A Se es Aha ae ey 24
Attorney General of New York v. Soto-Lopez, 476 US.
GY S20 dh ou s3 ti ei oho ce esbss beers 11,12,13,20
Austin v. New Hampshire, 420 U.S. 656 (1975) ........ 11
Bigelow v. Virginia, 421 U.S. 809 (1975) ............ 15,17
Board of Trustees of the State University of New York v.
FOR, Fae Gas GEO CRD oc cee ncccvess 15,17,18,19,21,22
Califano v. Aznavorian, 439 U.S. 170 (1978) ........ 11,12
Carey, etc., et al., v. Population Services International,
GE Ge Us PE nv bv cence eccessscceans 15-17
Central Hudson Gas & Electric Corporation v. Public
Service Commission of New York, 447 U.S. 557
SE oc cava Keveles ak oueaeueeoe 8,15,17-19,21,22
City of Houston v. Federal Aviation Administration, 679
Pie BAe Cas HEED a 6 Soave Wana ee ceaNexs 25-27
City of Milwaukee, et al. v. Block, et al., 823 F.2d 1158
ED oe an dw eae ks bay eae baw 26
City of Milwaukee, et al. v. Yeutter, et al., 877 F.2d 540
(7th Cir. 1989), certiorari denied, — U.S. —— [110
S.Ct. 500; No. 89-409] (1989) ................ 25,26,28
Continental Air Lines, Inc. v. Department of
Transportation, 269 U.S.App.D.C. 116; 843 F.2d 1444
Ne ES dee Ties wesc van cece ede see's l
Crandall v. Nevada, 6 Wallace 35 (1867) ........... 10,12
Dunn v. Blumenstein, 405 U.S. 330 (1972) .......... 11,12
Griffin v. Breckenridge, 403 U.S. 88 (1971) .......... 11,12
Haig v. Agee, 453 U.S. 280 (1981) .................. ll
Jones v. Helms, 452 U.S. 412 (1981) ............... 11,14
Louisiana Public Service Commission, et al. v. Texas &
New Orleans R.R., 284 U.S. 125 (1931) ........... 24,25
Cases—Continued: Page
Memorial Hospital, et al. v. Maricopa County, et al., 415
EE eae ed eeu eee daae one us eee 13
Passenger Cases, 7 Howard 283 (1849) .............. 10
Paul v. Virginia, 8 Wallace 168 (1869) ............. 10,12
Posadas de Puerto Rico Associates v. Tourism
Company of Puerto Rico, 478 U.S. 328 (1986) 15,17-19,21
Shapiro v. Thompson, 394 U.S. 618 (1969) ....... 7,11-14
State of Nevada, et al. v. Watkins, 914 F.2d 1545 (9th
‘Cir. 1990), certiorari denied, — US.—— [111 S.Ct. |
LG PV I EEIED cc ce cs csbevanesesuncnss 26
State of Pennsylvania v. Wheeling and Belmont Bridge
Co., et al., 18 Howard 421 (1856) ............ 22,24,27
State of South Carolina v. State of Georgia, et al., 3 Otto
ert eC ren Fp et ee re 24
Twining v. New Jersey, 211 U.S. 78 (1908) .......... 11,12
United States v. Guest, 383 U.S. 745 (1966) .......... 11,12
United States v. Ptasynski, et al., 462 U.S. 74 (1983) ... 26
Virginia Pharmacy Board v. Virginia Citizens Consumer
Coated, Bec., 425 US. TRB CIGTS) ccc cscccennes 15
Ward v. Maryland, 12 Wallace 418 (1871) .......... 10,12
Zobel v. Williams, 457 U.S. 55 (1982) .......... 8,11,12,14
Constitutional provisions:
Article I, Section 9, Clause 6 (“Port Preference
3 SERRE granu eetArer renenh 9.4 7,8,10,22 et seq
Article IV, Section 2, Clause 1 (“Privileges and
SGI Foc oh cwisc cccassusueunen 7,8,10,14
Amendment V, Clause 3 (“Fifth Amendment Due
NUE oo oxo c's vce via teu cuneRwenries 13
Statutes:
Fee By Wee ew, ID BED is ove cece cctnene l
(VI)
Statutes—Continued: Page
pe 7
Title 28, U.S.C., Section 1346(a)(2) ................. 7
Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92
EE EE Soi hatin ca mun nds bmeieewil xine 2
International Air Transportation Competition Act of
1979, Pub.L. No. 96-192, 94 Stat. 35 (1980) ........ 2
Section 29 of the International Air Transportation
Competition Act of 1979, Pub.L. No. 96-192, 94 Stat.
- 35 (1980) (a/k/a the “Wright Amendment”) ... passim
Other authority
Order 85-12-81 of the United States Department of
Transportation (the “DOT Order”) .......... passim
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
No.
BUDDY CRAMER, PETITIONER
v.
SAMUEL K. SKINNER, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Buddy Cramer (“Cramer”) petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
la-35a) is reported at 931 F.2d 1020. The opinion of
the district court (App., infra, 62a-68a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered
May 9, 1991. (No petition for rehearing was filed in
the court of appeals.) The jurisdiction of this Court is
invoked under Title 28, U.S.C., Section 1254(1).
(1)
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
The relevant provisions of the International Air
Transportation Competition Act of 1979, Pub.L. No.
96-192, 94 Stat. 35 (1980), are reproduced at App. B.,
infra, 36a-37a.
STATEMENT
1. Section 29 of the International Air
Transportation Competition Act of 1979, Pub.L. No.
96-192, 94 Stat. 35 (1980) (hereinafter the “Wright
Amendment”) is a “provision of a distinctly parochial,
domestic nature ... designed to except Love Field
[Airport in Dallas, Texas] from the liberalized entry
provisions of the Airline Deregulation Act of 1978,
Pub.L. No. 95-504, 92 Stat. 1705 (1978) ... The reason
for the exception was ... to protect [Dallas/Fort Worth
International Airport] from competition at Love Field.”
Continental Air Lines, Inc. vu. Department of
Transportation, 269 U.S.App.D.C. 116; 843 F.2d 1444,
1446 (D.C. Cir. 1988). (Starr, J.)' The Wright
Amendment protects Dallas/Fort Worth International
Airport from competition by restricting passenger
service to and from Love Field, Texas (hereinafter
“Love Field”) through a variety of mechanisms, each
of which is intended to burden those who elect to use
Love Field in the course of their interstate travels.
These mechanisms may be classified as (1) actual
1 In Continental Air Lines, the District of Columbia Circuit
denied petitions for review of DOT’s Order 85-12-81 (hereinafter
the “DOT Order”), which interprets the Wright Amendment. The
DOT Order is reproduced at App. C, infra, 38a-61a.
barriers to interstate movement, (2) economic
disincentives, and (3) proscriptions against speech.
The Wright Amendment restricts passenger
service to and from Love Field and points which do
not lie within certain enumerated states (i.e.,
Louisiana, Arkansas, Oklahoma, New Mexico, or
Texas).? Thus the unrestricted service area
prescribed by the Wright Amendment is defined by
the interstate borders which constitute the outer
perimeter of the Enumerated States. (Such interstate
borders are hereinafter referred to as the “Restricted
Borders”.)
The Wright Amendment erects actual barriers to
interstate movement by prohibiting air carriers from
providing “through service” for travel between Love
Field and points which lie beyond the Restricted
Borders. (DOT Order, at App., infra, 57a.)* Thus,
under the Wright Amendment’s regime, an airline
passenger who elects to originate his or her interstate
travel at Love Field (or an airline passenger who
elects Love Field as the destination of his or her
2 Louisiana, Arkansas, Oklahoma, New Mexico, and Texas may
be hereinafter referred to individually or collectively as
“Enumerated States”. States which are not privileged to be
among the Enumerated States may be hereinafter referred to
individually or collectively as “Unenumerated States”.
3 The phrase, “through service” refers to the provision of
transportation between an ultimate origin and an ultimate
destination on a single ticket for a single sum fare. “Through
service” includes both single flight service with one or more
stops, and provision of service by connection between two
flights. (DOT Order, at App., infra, 55a.)
interstate travel) may not traverse the Restricted
Borders by remaining on a single aircraft. (DOT
Order, at App., infra, 57a.)4 For example, a Love Field
Passenger bound from Chicago, Illinois to Love Field
must disembark the aircraft upon which she departed
Chicago at some point within the Restricted Borders
other than Love Field. This requirement is met by the
use of intermediate airports within the Restricted
Borders (hereinafter “Intermediate Airports”). In the
example of a Love Field Passenger traveling from
Chicago to Love Field, the airport at Tulsa, Oklahoma
might be employed as the Intermediate Airport. In
such case, when the aircraft lands at the Intermediate
Airport (ie, Tulsa) as required by the Wright
Amendment, all passengers must disembark; they
may not reboard the same aircraft to cot nue their
travel to Love Field. The same aircrait is open,
however, to any and all other persons who desire to
travel from the Intermediate Airport (here, Tulsa) to
Love Field.
After they are compelled to disembark aircraft at
an Intermediate Airport, Love Field Passengers are
permitted to continue their interstate travels on
another aircraft, via the “most efficient connecting
flight”. (DOT Order, at App., infra, 54a.) However, the
Wright Amendment imposes heavy burdens upon
those who elect tu do so. The Wright Amendment
compels air carriers to deny certain’ public
4 Airline passengers who elect to originate their interstate
travel at Love Field, or who elect Love Field as the destination of
their interstate travel, are hereinafter referred to as “Love Field
Passengers.”
accommodations (e.g., baggage handling and transfer)
to such Love Field Passengers. (DOT Order, at App.,
infra, 56a.) By requiring Love Field Passengers to
claim and recheck their baggage at an Intermediate
Airport, the Wright Amendment operates to ensure
that, in many cases, the “most efficient connecting
flight” is a later flight than would have been available
to the Love Field Passenger, if her or his baggage had
been handled in the ordinary (i.e. unrestricted)
manner. If, as in many cases, the plane to which a
Love Field Passenger would have connected via an
ordinary (i.e., unrestricted) connection departs from
an Intermediate Airport within the time required for
claiming and rechecking baggage, the Love Field
Passenger may in practice be delayed for hours
before the next plane bound for the Love Field
Passenger’s destination leaves the Intermediate
Airport. Thus, the Wright Amendment operates to
impose a de facto detention period upon Love Field
Passengers at Intermediate Airports.
The Wright Amendment prohibits air carriers from
selling single tickets for restricted travel between
Love Field and points beyond the Restricted Borders.
(DOT Order, at App., infra, 55a, 57a.) Thus, Love Field
Passengers must purchase a combination of tickets:
one for travel between Love Field and an Intermediate
Airport, and one for travel between the Intermediate
Airport and the Love Field Passenger’s destination
beyond the Restricted Borders.®
5 The sale of such a combination of tickets is referred to as
“double ticketing”. (DOT Order, at App., infra, 54a.)
The Wright Amendment prohibits air carriers from
granting through fares for travel between Love Field
and any point beyond the Restricted Borders. (DOT
Order, at App., infra, 58a.) Through fares are “usually
lower” than the total fare which would be charged for
“double-ticketed” service to a given destination.
(DOT Order, at App., infra, 55a, n.8.) Thus, the Wright
Amendment ensures that the cost of Wright
Amendment-restricted double-ticketed travel across
the Restricted Borders is higher than it would be in
the absence of the Wright Amendment.
The Wright Amendment prohibits air carriers from
“offer{ing] for sale transportation to or from ... any
point which is outside any [Enumerated] State.”
(App, infra, 37a.) This “ban on advertising” prohibits
air carriers and even travel agents from “advertis([ing],
promot[ing}], or otherwise affirmatively solicit[ing]
double-ticketing passengers.” (DOT Order, at App.,
infra, 56a, 57a, 59a.) Accordingly, the Wright
Amendment prohibits air carriers and travel agents
from disseminating truthful, “[u}nsolicited
information furnished to the public in any form ...”
which might facilitate travel between Love Field and
points beyond the Restricted Borders. (DOT Order, at
App., infra, 58a, 59a.) The Wright Amendment further
prohibits the mere “publication of connecting flight
schedules [for double-ticketed service] in airline
guides, flight schedules or similar media.” (DOT
Order, at App., infra, 57a. Emphasis added.) Further,
the mere act of “stat[ing] as a single amount” the total
cost of service between Love Field and points beyond
the Restricted Borders would constitute an attribute
of through service, and is therefore prohibited by the
Wright Amendment. (DOT Order, at App., infra, 55a
and note 8.)
2. In this case, Cramer’ challenges’ the
constitutionality of the Wright Amendment.®
Specifically, Cramer contends, (1) that the Wright
Amendment impermissibly abridges his fundamental
right of interstate travel, (2) that the Wright
Amendment impermissibly abridges_ his_ First
Amendment right to receive protected speech, and
(3) that the Wright Amendment is repugnant to the
Port Preference Clause.
Cramer contends, inter alia, that the Wright
Amendment impermissibly abridges his fundamental
right of interstate travel by burdening his exercise of
such right in a manner repugnant to the Due Process
Clause of the Fifth Amendment, the Privileges and
Immunities Clause of Article IV, and the Assembly
Clause of the First Amendment. in brief, Cramer
contends that the Wright Amendment's classification
of persons at Intermediate Airports as either Love
Field Passengers (who are not free to board any flight)
and non-Love Field Passengers (who are free to board
any flight) constitutes discrimination so unjustifiable
as to be violative of due process. See Shapiro v.
Thompson, infra. Cramer further contends that the
Wright Amendment's burdens on interstate travel
contravene the guarantee of free ingress and egress
6 The district court’s jurisdiction was invoked under Title 28,
U.S.C., Sections 1331 and 1346(a)(2). Cramer seeks a declaration
that the Wright Amendment is unconstitutional, an injunction
against enforcement thereof, and recovery of damages in the sum
of $100.
which is implied from the Privileges and Immunities
Clause of Article IV (see ex rel., Zobel v. Williams,
infra), and that such guarantee should be held to
immunize against interference by the National
Government (as well as against interference by the
governments of the several states).
Cramer contends, inter alia, that the Wright
Amendment’s content regulation of protected speech
fails to satisfy any prong of the three-part test
approved by this Court in Central Hudson Gas &
Electric Corp. v. Public Service Comm'n of New York,
infra. Alternatively, Cramer contends that regulation
of commercial speech whose purpose is to propose a
commercial transaction essential to the exercise of a
fundamental right (here, interstate travel) should be
subjected to a level of scrutiny higher than that to
which content regulation of ordinary commercial
speech is subjected under Central Hudson.
Cramer contends, inter alia, that the Wright
Amendment contravenes the Port Preference Clause
by requiring that passenger aircraft bound from Love
Field to points beyond the Restricted Borders enter a
port within an Enumerated State prior to traversing
the Restricted Borders, and by requiring that
passenger aircraft bound from points beyond the
Restricted Borders to Love Field enter a port within
an Enumerated State prior to entering the port at
Love Field.
The National Government’ responded to Cramer’s
complaint in the district court by filing an omnibus
7 Respondents, Samuel K. Skinner, United States Department
motion to dismiss for lack of standing, or for summary
judgment. Cramer filed a cross-motion for summary
judgment. The district court dismissed Cramer’s
complaint for lack of standing, whereupon Cramer
perfected an appeal.
3. The court of appeals held that Cramer had
standing to challenge the Wright Amendment, and
vacated the district court’s order dismissing Cramer’s
complaint. (App., infra, 20a, 35a.) On the merits, the
court of appeals held that the district court “did not
err ... by not granting Cramer’s cross-motion for
summary judgment.” (App., infra, 34a.) The court of
appeals remanded this case,® declining to rule upon
the National Government’s motion for summary
judgment on the ground that “the Government did not
cross-appeal from the district court’s jurisdictional
dismissal.” (App., infra, 35a.)
In holding that the district court “did not err ... by
not granting Cramer’s cross-motion for summary
judgment,” the court of appeals found the Wright
Amendment’s restrictions on interstate travel to be
“{mJinor restrictions ... [which] do not amount to the
denial of a fundamental right that can be upheld only
if the Government has a compelling justification.”
of Transportation, John V. Coleman, Office of Aviation
Analysis, and the United States of America, may be hereinafter
referred to collectively as the “National Government.”
8 Cramer will seek a stay of proceedings in the district court
or will perfect an appeal, as may become necessary to preclude
possible application of the doctrine of mootness during the
pendency of proceedings in this Court.
10
(App., infra, 25a.) The court of appeals further held
that the Wright Amendment does not offend the Port
Preference Clause because the detriment caused by
the Wright Amendment to the ports of the
Unenumerated States (and to Love Field) occurs “(i)
as an incident to some _ otherwise legitimate
government act regulating commerce [and] (ii) more
as a result of the accident of geography than from
intentional government preference.” (App., infra,
27a.) The court of appeals further held that the
Wright Amendment’s content regulation of speech, (1)
serves a “substantial interest in resolving [a] dispute
between Dallas and Fort Worth ...”, (2) “directly
advance[s]” such interest, and (3) is “no more
extensive than necessary to serve the Government's
interest.” (App., infra, 32a, 33a, 34a.)
REASONS FOR GRANTING THE PETITION
I. INTERSTATE TRAVEL
This Court has long held that the right to travel
interstate is constitutionally protected. See e.g,
Passenger Cases, 7 Howard 283, 492 (1849) (Taney, J.,
dissenting) (“[C]itizens of the United States ... must
have the right to pass and repass through every part
of it without interruption ...”); Crandall v. Nevada, 6
Wallace 35, 47 (1867) (“[T]he right of passing through
a State by a citizen of the United States is one
guaranteed to him by the Constitution ...”); Paul v.
Virginia, 8 Wallace 168, 180 (1869) (“... the citizens of
each State [have] ... the right of free ingress into other
States, and egress from them ...”); Ward v. Maryland,
12 Wallace 418, 430 (1871) (Article IV, § 2 “*... secures
1]
and protects the right of a citizen of one state to pass
into any other state of the Union for [any lawful]
purpose ...”); Twining v. New Jersey, 211 U.S. 78, 97
(1908) (“[A]mong the rights and privileges of national
citizenship recognized by this Court are the right to
pass freely from state to state.”); United States v.
Guest, 383 U.S. 745, 759 n.17 (1966) (“[T]he
constitutional right of interstate travel is a right
secured against interference from any _ source
whatever, whether governmental or _private.”);
Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (“[T]he
nature of our Federal Union and our constitutional
concepts of personal liberty unite to require that all
citizens be free to ‘ravel [interstate] ...”); Griffin v.
Breckenridge, 403 U.S. 88, 105 (1971) (“... the right of
interstate travel is constitutionally protected ...”). See
also Dunn v. Blumenstein, 405 U.S. 330 (1972); Austin v.
New Hampshire, 420 U.S. 656 (1975); Califano uv.
Aznavonian, 439 U.S. 170 (1978); Jones v. Helms, 452
U.S. 412 (1981); Zobel v. Williams, 457 U.S. 55 (1982);
Attorney General of New York v. Soto-Lopez, 476 U.S.
898 (1986).
This Court has declared that the right to travel
interstate is “fundamental”. Attorney General of New
York, supra, at 906 n.6; see also Jones, supra, at 418;
United States v. Guest, supra, at 757; Shapiro, supra, at
638. The right to travel interstate is “basic”. Attorney
General of New York, at 901-902 (quoting Dunn, supra,
at 338, quoting United States v. Guest, at 758). The
right to interstate travel is an “unconditional personal
right.” Dunn, at 341, quoting Shapiro, at 643 (Stewart,
J., concurring). (Emphasis supplied by the Court in
Dunn.) “The constitutional right of interstate travel is
virtually unqualified.” Haig v. Agee, 453 U.S. 280, 307
12
(1981), quoting Califano, supra, at 176, quoting United
States v. Guest, at 757-758.
This Court has held that the right to travel
includes both the right of ingress to and egress from
the states, and the right to migrate. Decisions of this
Court involving the right of ingress and egress
include, inter alia, Crandall, Paul, Ward, Twining,
United States v. Guest, and Griffin, supra. Decisions of
this Court involving the right to migrate include, inter
alia, Shapiro, Dunn, Zobel, and Attorney General of
New York, supra.
This Court’s decisions in the right to migrate cases
have principally involved state laws which have
imposed only indirect burdens upon the exercise of
the right to migrate, through classification of
residents according to duration of residency. Attorney
General of New York, supra, at 903. Where such laws
have survived rational basis scrutiny, this Court has
applied equal protection analysis, and has “
required the States to come forward with a
compelling justification.” /d, at 904. Cramer has
found only one such case involving a federal statute.
In that case, Shapiro, supra, this Court applied an
analysis under the Fifth Amendment similar to that
applied to state laws under the Equal Protection
Clause, and required that the federal statute be
justified by a compelling interest. Shapiro, at 642. See
also /d., at 644: a statute which “impinges upon the
constitutional right of interstate travel must be shown
to reflect a compelling governmental interest. This is
necessarily true [when] the impinging law [is] ... a
federal regulatory clause, to be tested against the Due
13
Process Clause of the ... Fifth Amendment.” (Stewart,
J., concurring.)
In the case at bar, Cramer seeks compelling
interest scrutiny of the Wright Amendment, under
Shapiro. The Wright Amendment classifies persons at
Intermediate Airports as either Love Field Passengers
or non-Love Field Passengers. Outbound Love Field
Passengers are not permitted to board certain flights
which shall traverse the Restricted Borders, while all
others are free to board such flights. Inbound Love
Field Passengers are not permitted to board certain
flights bound for Love Field solely by reason of their
having recently traversed the Restricted Borders,
while all others are free to board such flights.
In determining that the Wright Amendment does
not impermissibly abridge interstate travel rights, the
court of appeals failed to require the National
Government to come forward with a compelling
justification for the Wright Amendment. Instead the
court of appeals relied upon Aftorney General of New
York, supra, at 903, for the proposition that, “[m]Jinor
restrictions on travel simply do not ... [require]
compelling justification.” App., infra, 25a. Cramer
submits that the view adopted by the court of appeals
finds no support in the opinion of the Court in
Attorney General of New York, but instead finds
support only in a dissenting opinion rendered in that
case. See Attorney General of New York, at 921
(O’Connor, J., dissenting). (“This Court in Memorial
Hospital {v. Maricopa County, 415 U.S. 250, 256-259
(1974)] acknowledged that Shapiro left unclear the
amount of impact on the right to travel which is
necessary to give rise to application of heightened
14
scrutiny ... [I]t is fair to infer that something more
than a negligible or minimal impact on the right to
travel is required before strict scrutiny is applied.”)
The court of appeals also relied upon the opinion of
this Court in Jones, supra. App., infra, 26a, n.10.
Cramer submits that Jones is wholly inapposite
because in that case it was the appellee’s “criminal
conduct ... [which] qualified his right thereafter freely
to travel interstate.” Jones, at 421. (Emphasis added.)
Cramer has found no opinion of this Court which
expressly prescribes the level of scrutiny to be
applied to a federal law which burdens the right of
ingress and egress. If Shapiro controls, the court of
appeals has decided a federal question in a manner
which conflicts with applicable decisions of this
Court; if Shapiro does not control, this case presents
an important question of federal law which has not
been, but should be, settled by this Court.’
Il. RESTRICTIONS UPON SPEECH
As noted above, the Wright Amendment prohibits
publication by airlines and travel agents of, inter alia,
advertisements and connecting flight scheaules
respecting otherwise lawful double-ticketed travel
between Love Field and points beyond the Restricted
Borders.
9 This case may also raise the question whether the implied
right of ingress and egress derived from the Privileges and
Immunities Clause of Article IV (see Zobel, supra, at 80 [O’Connor,
J., concurring]) provides immunity against interference by the
National Government.
15
A. Level of Scrutiny
The test for identifying commercial speech is
whether its purpose is to “propose a commercial
transaction.” Board of Trustees of the State University
of New York v. Fox, 492 U.S. 469, 473 (1989), quoting
Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 762 (1976). The court of
appeals held that the Wright Amendment restricted
commercial speech, and purported to conduct the
inquiry prescribed for review of content regulation of
ordinary commercial speech in Central Hudson Gas &
Electric Corporation v. Public Service Commission of
New York, 447 U.S. 557, 566 (1980). App., infra, 30a.
This Court has recognized the “crucial distinction”
between cases involving content regulation of
ordinary commercial speech and those cases in which
“the underlying conduct that was the subject of the
advertising restrictions was constitutionally
protected ...". Posadas de Puerto Rico Associates v.
Tourism Company of Puerto Rico, 478 U.S. 328, 345
(1986). In such cases, this Court has implicitly
applied a level of scrutiny higher than that applied in
Central Hudson, Posadas, and Board of Trustees. See
Carey, etc., et al., v. Population Services International,
et al., 431 U.S. 678, 701 (1977) (noting that the
information suppressed by the statute there at issue
“related to activity with which, at least in some
respects, the State could not interfere.” [quoting
Virginia Board of Pharmacists, supra]). See also
Bigelow v. Virginia, 421 U.S. 809, 822 (1975) (noting
that the “activity advertised pertained’ to
constitutional interests”).
16
In the case at bar, Cramer seeks to have
heightened’ scrutiny applied to the Wright
Amendment’s content regulation of protected
commercial speech on the ground that such
regulation applies only to speech which facilitates a
constitutionally protected activity (.e., traversing the
Restricted Borders). (Cramer submits that the Wright
Amendment is analogous to a statute which prohibits
taxi-cab companies from advertising cab rides to the
polls on election day, while allowing taxi-cab
companies to advertise other services not related to
facilitating voting.) In declining to apply heightened
scrutiny in the instant case, the court of appeals
reasoned:
“Cramer argues that commercial speech that
proposes a transaction that would facilitate the
exercise of the right to interstate travel, or any
fundamental right, should be _ afforded
protection equivalent to that afforded
non-commercial speech. Even assuming that
this argument is correct, it is unavailing in
these circumstances because we _ have
concluded that the Love Field amendment does
not violate Cramer’s right to interstate travel.”
App., infra, 31a, n.16. Cramer submits that the issue
of whether the Wright Amendment'’s restrictions upon
interstate movement are constitutional is wholly
distinct from the issue of whether the Wright
Amendment’s content regulation of protected
commercial speech should be_ subjected’ to
heightened scrutiny. (See Carey, supra, analyzing
restrictions upon distribution of contraceptives
17
separately from proscription against advertisement of
contraceptives.)
Cramer has found no opinion of this Court which
expressly prescribes the level of scrutiny to be
applied to a federal law regulating the content of
commercial speech relating to a constitutionally
protected activity. If Bigelow and Carey control, the
court of appeals has decided a federal question in a
manner which conflicts with applicable decisions of
this Court; if Bigelow and Carey do not control, this
case presents an important question of federal law
which has not been, but should be, settled by this
Court.
B. The Court of Appeals has Failed to Apply the
Doctrine of Central Hudson, Posadas, and Board
of Trustees
This Court has held that the content of ordinary
commercial speech
“may be restricted only if the government’s
interest in doing so is_ substantial, the
restrictions directly advance the government's
asserted interest, and the restrictions are no
more extensive than necessary to serve that
interest.”
Posadas, supra, at 340, citing Central Hudson, supra, at
5966. Assuming, arguendo, the Central Hudson inquiry
is applicable to the Wright Amendment’s content
regulation of protected commercial speech, the court
of appeals failed to conduct such inquiry in a manner
consistent with the holdings of this Court.
18
1. Substantial Interest Criterion
The substantial interest inquiry “involves an
assessment of the strength of the government's
interest in restricting the speech.” Posadas, supra, at
341. In the case at bar, the court of appeals found
that the Wright Amendment’s content regulation of
protected commercial speech served a substantial
governmental interest of Congress in “resolving [a]
dispute between Dallas and Fort Worth”"® relating to
primacy in aviation. App., infra, 32a. This Court has
previously upheld content regulation of protected
commercial speech only where much greater
interests of government were served. See Central
Hudson, supra, at 568, 569. (New York's interests in
“fair and efficient” utility rates, and in “energy
conservation” each found substantial.) See Posadas,
supra, at 341. (Puerto Rico’s interest in “reduction of
demand for casino gambling by [its] residents” held
substantial, where such reduction promoted “the
health, safety and welfare of [Puerto Rico’s] citizens.”)
See also Board of Trustees, supra, at 475. (New York’s
interests in “promoting an educational rather than
commercial atmosphere on [university] campuses,
promoting safety and security, preventing commercial
exploitation of students, and preserving residential
tranquility” held substantial.) In finding that the
National Government has a substantial interest in
restricting speech in the case at bar, the court of
appeals has interpreted the phrase, “substantial
10 Notably, the dispute to which the court of appeals referred
was a political dispute between two cities chartered under the
laws of the same state.
a
19
interest”, so broadly as to effectively nullify the
substantial interest criterion approved by this Court
in Central Hudson, Board of Trustees and Posadas.
Cramer has found no opinion of this Court which
addresses the question of whether or when federal
interest in resolving political disputes between cities
may qualify as a substantial interest which may justify
content regulation of protected commercial speech;
Cramer submits that this case presents an important
question of federal law which has not been, but
should be, settled by this Court.
2. Direct Advancement Criterion
Content regulation of protected commercial
speech will not satisfy the direct advancement
criterion where “it provides only ineffective or remote
support for the government’s purpose.” Central
Hudson, supra, at 564. See, e.g., /d., at 569. (While the
relationship between New York’s interest in fair and
efficient utility rates and the advertising ban there at
issue was “at most, tenuous,” and therefore not
sufficiently direct, New York’s interest in energy
conservation was found to be directly advanced by
such advertising ban, because of the “immediate
connection between advertising and demand for
electricity.” [Emphasis added. ])
In the case at bar, the court of appeals found that
the Wright Amendment’s content regulation of
protected commercial speech
“directly advance[s] the { National]
Government's interest in providing a ‘fair and
equitable settlement’ for the dispute between
Dallas and Fort Worth ... by encouraging the
20
use of DFW rather than Love Field. It
encourages the use of DFW because some
travelers may not realize that service beyond
the Love Field service area is available from
Love Field and by making travel beyond the
Love Field service area from Love Field
somewhat more difficult{'!] even for travelers
who realize that such information is available
upon request.
“... The Love Field amendment’s limitation on
advertising reduces the demand for service[!?]
to points outside the Love Field service area
and thus helps to preserve the agreement
between Dallas and Fort Worth.”
App., infra, 32a-33a. Cramer submits that the case at
bar is distinguishable from those cases in which this
Court found that content regulation of protected
commercial speech directly advanced governmental
interests by effecting reduction in demand. For
example, it is axiomatic that reduction of demand for
electricity will directly advance conservation thereof.
11 Cramer submits that, if in fact the Wright Amendment
renders such travel “somewhat more difficult”, then, a fortiori,
the Wright Amendment deters, impedes or penalizes the exercise
of the right to travel interstate. See, Attorney General of New
York, supra, at 903.
i2 Cramer submits that, if in fact the Wright Amendment
actually reduces demand for passage across the Restricted
Borders, then, a fortiori, the Wright Amendment deters, impedes
or penalizes the exercise of the right to travel interstate. See,
Attorney General of New York, supra, at 903.
\——
(Central Hudson.) In Posadas, “reduction of demand”
was the government’s interest. Cramer submits that
reducing demand for lawful interstate travel between
Love Field and points beyond the Restricted Borders
does not directly advance the asserted interest of the
National Government in resolving a political dispute
between Dallas and Fort Worth. Any support for the
resolution of a political dispute which may result from
the Wright Amendment’s content regulation of
protected commercial speech is at best, “ineffective”
and “remote”.
In concluding that the Wright Amendment's
content regulation of protected commercial speech
directly advances the asserted interest of the National
Government, the court of appeals has decided a
federal question in a manner which conflicts with the
decisions of this Court in Central Hudson, Posadas and
Board of Trustees.
3. Reasonable Fit Criterion
In Board of Trustees, this Court held that content
regulation of protected commercial speech is “no
more extensive than necessary” to serve the
governmental interest at issue where there is a
reasonable fit between the objective of the legislature
which enacted the regulation and the means
employed to achieve that objective. Board of Trustees,
at 480. A “reasonable fit” requires that the regulation
at issue “employs not necessarily the least restrictive
means but ... a means narrowly tailored to achieve the
desired objective.” /d., at 480.
With little discussion, the court of appeals heid
that the Wright Amendment’s content regulation of
22
protected commercial speech “reasonabl[y] fit” the
National Government’s asserted interest:
“Without the ban on advertising, more intrusive
restrictions might be necessary to carry out
Congress’ decision to keep service at Love
Field from undermining the agreement between
Dallas and Fort Worth.”
App., infra, 34a. (Emphasis added.) The court of
appeals did not consider the availability of alternative
(and far less intrusive) means of resolving the
asserted political dispute, such as limiting the number
of operations (i.e, takeoffs and landings) at Love
Field.
In concluding that the Wright Amendment’s
content regulation of protected commercial speech
satisfies the final Central Hudson criterion, the court of
appeals has decided a federal question in a manner
which conflicts with applicable decisions of this
Court, including, inter alia, the decision rendered in
Board of Trustees.
Ill. PORT PREFERENCE CLAUSE
The Port Preference Clause (Article I, § 9, Clause 6)
provides:
“No Preference shall be given by any
Regulation of Commerce or Revenue to Ports of
one State over those of another: nor shall
Vessels bound to, or from, one State be obliged
to enter, clear, or pay duties in another.”
As is apparent from the text of the Port Preference
Clause, it is comprised of two sub-clauses, separated
by a colon.!3 See State of Pennsylvania v. Wheeling
1 sncnameaemeaaaaiaas aii
23
and Belmont Bridge Co., et al., 18 Howard 421, 435
(1856). (“[T]he rights of the States were secured, by
the exemption of vessels from the necessity of:
entering or paying duties in the ports of any State
other than that to which they were bound ... And, also,
by the provision that no preference should be given,
by any regulation of commerce or revenue, to the
ports of one State over those of another.” [Emphasis
added. })
A. Preferential Regulation Sub-clause
Decisions rendered by this Court in cases in which
it was argued that a regulation of commerce
impermissibly preferred the ports of one state over
those of another (i.e, cases implicating the
Preferential Regulation Sub-clause) establish the
general rule that, in order to contravene the
Preferential Regulation Sub-clause of the Port
Preference Clause, a regulation of commerce must
effect
“,. a direct privilege or preference of the ports
of any particular State over those of another ...
[Thus, the Port Preference Clause forbids] not
discrimination between individual ports within
the same or different States, but discrimination
between States ...”
13 Cramer shall hereinafter refer to the first sub-ciause (ie.,
“No Preference shall be given by any Regulation of Commerce or
Revenue to Ports of one State over those of another ...”) as the
Preferential Regulation Sub-clause; Cramer shall hereinafter refer
to the second sub-clause (i.e., “... nor shall Vessels bound to, or
from, one State be obliged to enter, clear, or pay duties in
another.”) as the Enter or Clear Sub-clause.
24
State of Pennsylvania v. Wheeling, supra, at 435. See
also Alabama Great Southern R.R. v. United States, 340
U.S. 216, 229 (1951), quoting Louisiana Public Service
Commission, et al. v. Texas & New Orleans R.R., 284
U.S. 125, 131 (1931). (The Port Preference Clause
“prevent[s] preference as between States in respect of
their ports or the entry and clearance of vessels. It
does not forbid such discriminations as between
ports.”) This Court has held that the Port Preference
Clause does not prohibit acts of Congress which
provide a special advantage to the port or ports of
one state (e.g, acts authorizing, “improvement of
rivers and harbors, the erection of light-houses, and
other facilities of commerce”), where such acts
“incidentally operate to the prejudice of the ports in a
neighboring State.” State of Pennsylvania v. Wheeling,
supra, at 433. (Emphasis added.) See also State of
South Carolina v. State of Georgia, et al., 3 Otto 4, 12-13
(1876). (An act of Congress providing for the
improvement of the harbor at Savannah, Georgia by
the diversion of water from the northern branch to
the southern branch of the Savannah River did not
offend the provision, “that no preference shall be
given by any regulation of-commerce or revenue to
the ports of one State over those of another.” [/e.,
the Preferential Regulation Sub-clause. })
Facially neutral acts of Congress which have
disparate effects upon the ports of different states
based upon the realities of geography do not offend
the Port Preference Clause. See Armour Packing
Company v. United States, 209 U.S. 56, 80 (1908).
(Holding that an act of Congress which confers an
advantage upon barge shipping as opposed to rail
shipping does not impermissibly prefer states whose
25
ports have the “natural advantage” of being
accessible by inland navigation over those states
whose ports are not accessible by inland navigation.)
See also Louisiana Public Service Commission v. Texas
& New Orleans R.R., supra, at 130. _ (Interstate
Commerce Commission regulation prescribing rates
for transportation of road surface components which
were calculated by addine a prescribed fee for ferry
service across the Mississippi River at specified
points to prescribed “straight mileage” rates did not
contravene the Port Preference Clause.) See also
Alabama Great Southern R.R. v. United States, supra, at
229. (Interstate Commerce Commission order
requiring common rail carriers and common
water-barge carriers to establish and _ charge
prescribed joint rail-barge through rates for
transportation of certain materials did _ not
impermissibly prefer the port of New Orleans over
certain ports of Georgia and Texas, where, “whatever
preference there is to New Orleans is the result of
geography [i.e., New Orleans is accessible by inland
navigation] and not of any action of the [Interstate
Commerce] Commission.”) See also City of
Milwaukee, et al. v. Yeutter, et al., 877 F.2d 540, 545
(7th Cir. 1989), certiorari denied, — USS. [110
S.Ct. 500; No. 89-409] (1989). (“Disparate
consequences of neutral rules do not violate the Port
Preference Clause.”) See also City of Houston uv.
Federal Aviation Administration, 679 F.2d 1184, 1198
(Sth Cir. 1982). (1000-mile perimeter rule at
Washington National Airport, “which for geographic
reasons has an incidental effect on air travel from
certain states” did not offend the Port Preference
Clause where its disparate effects were an, “accident
a
26
of geography, not any deliberate discrimination
against ... a named state or states.”)
During the first three decades of this Court's
forty-year silence on the Port Preference Clause,'* the
lower courts were also virtually silent. See City of
Houston, supra, at 1196. (Noting that “[d]Jecisions
interpreting the [Port Preference] [C]lause are ... few
and far between ...”) During the last decade, however,
there has been a relative explosion of Port Preference
Clause litigation in the lower courts. See e.g, City of
Houston, see also City of Milwaukee, et al. v. Block, et
al., 823 F.2d 1158 (7th Cir. 1987) and, following
remand, City of Milwaukee v. Yeutter, supra, see also
State of Nevada, et al. v. Watkins, 914 F.2d 1545, 1557
(9th Cir. 1990), certiorari denied, — U.S. —— [11]
S.Ct. 1105; No. 90-992] (1991). During this period, the
Fifth Circuit has derived the following rule from the
opinions of this Court:
“[A] statute that results in some detriment to
the port of a state does not violate the port
preference clause when the detriment occurs
(i) as an incident to some otherwise legitimate
government act regulating commerce or (ii)
more as a result of the accident of geography
than from an_ intentional government
preference’.”
14 Cramer's research has revealed only one reference by this
Court to the Port Preference Clause after its October Term, 1950.
See United States v. Ptasynski, et al., 462 U.S. 74, 80, n.10 (1983)
(containing dictum to the effect that the Port Preference Clause
effects an express, “limitation on the National Government's
commerce power”).
27
App., infra, 27a, quoting City of Houston, at 1197.
Assuming, arguendo, that the rule adopted by the
Fifth Circuit in City of Houston and applied in the case
at bar constitutes a correct synthesis of this Court’s
holdings under the Port Preference Clause, the court
of appeals has failed to apply said rule to the Wright
Amendment in a manner consistent with the holdings
of this Court. First, the Wright Amendment
discriminates between states by establishing a direct
preference for the ports of the Enumerated States
over those of the Unenumerated States.'> Second, the
Wright Amendment is not facially neutral, because the
Wright Amendment expressly prefers the named,
Enumerated States, over the Unenumerated States.
Third, the Wright Amendment’s detrimental effect
upon the ports of the Unenumerated States is not
merely “incidental” (as that term was employed in
State of Perinsylvania v. Wheeling, supra); instead, the
Wright Amendment’s primary mechanism is to
restrict passenger air service to the Unenumerated
States. Finally, the Wright Amendment’s
discrimination against the Unenumerated States is no
accident of geography, but a calculated erection of
the political frontiers of member states of the United
States as actual barriers to interstate travel. (Thus,
under the regime of the Wright Amendment, a Love
Field Passenger may travel without restriction to such
15 While it may also be true that the Wright Amendment
prefers the port at Dallas/Fort Worth International Airport over
that at Love Field, this additional, lawful, discrimination is not
curative of the Wright Amendment's unlawful discrimination in
favor of the Enumerated States over the Unenumerated States.
28
far-away places as El] Paso, Texas and Albuquerque,
New Mexico, but may not travel freely to nearby
Wichita, Kansas or Kansas City, Missouri, simply
because these cities lie beyond the Restricted
Borders.) Accordingly, the Wright Amendment is
repugnant to the Preferential Regulation Sub-clause of
the Port Preference Clause.
Because this Court has not considered the Port
Preference Clause in forty years, this Court has had
no occasion to address the Port Preference Clause in
the context of aviation. Cramer believes the
application of the Port Preference Clause in the
context of aviation presents important questions of
federal law which have not been, but should be,
settled by this Court. Additionally, Cramer submits
that the court of appeals has decided the question of
whether the Wright Amendment is repugnant to the
Preferential Regulation Sub-clause in a manner which
conflicts with the decisions of this Court discussed
hereinabove.
B. Enter or Clear Sub-clause
In contrast to the Preferential Regulation
Sub-clause (which constitutes only a “general
prohibition of preferences” in regulation of commerce
or revenue), the Enter or Clear Sub-clause effects an
“explicit ban” on obligations to enter or clear a port of
a state other than that to which a vessel is bound.
City of Milwaukee v. Yeutter, supra, at 546. Cramer’s
research has not revealed any decision of this Court
which appears to apply the Enter or Clear Sub-clause.
Restated, all decisions of this Court which Cramer has
found relating to the Port Preference Clause involved
alleged preferences in the regulation of commerce,
29
and none has involved a statute or regulation which
purportedly obligated vessels bound to or from one
state to enter the port of another. (in fact, Cramer's
research has revealed no prior statute or regulation
which has expressly purported to require a vessel to
enter a port of one state, prior to entering the state of
its destination.)
Cramer believes the Wright Amendment is the first
federal statute or regulation to implicate the explicit
ban contained in the Enter or Clear Sub-clause. The
Wright Amendment contravenes the Enter or Clear
Sub-clause by requiring that passenger aircraft bound
from Love Field to points beyond the Restricted
Borders enter a port within an Enumerated State,
before entering a port of an Unenumerated State.
(Similarly, the Wright Amendment requires that
passenger aircraft bound from a point beyond the
Restricted Borders to Love Field enter a port within
an Enumerated State, before entering the port at Love
Field.) Cramer believes this first impression issue is
an important question of federal law which has not
been, but should be, settled by this Court.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
David J. Gallo
5910 North Central, Suite 1150
Dallas, Texas 75206
(214) 891-6628
July, 1991
APPENDIX A
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 90-1303
BUDDY CRAMER, Plaintiff-Appellant
U.
SAMUEL K. SKINNER as Secretary of Transportation,
et al., Defendants-Appellees,
and
SAFE AIRSPACE FOR EVERYONE, et al., Intervening
Defendants-Appellees.
MAY 9, 1991
Before GOLDBERG, KING, and DUHE, Circuit
Judges.
KING, Circuit Judge:
The plaintiff-appellant Buddy Cramer (Cramer)
asserts that the International Air Transportation
Competition Act of 1979, Pub.L. No. 96-192, § 29, 94
Stat. 35 (1980) (Love Field amendment), which
restricts interstate air service from Love Field Airport
(Love Field) in Dallas, Texas, abridges his
(1a)
2a
constitutional rights of free speech and interstate
travel. The defendants in this case, the individuals
and agencies charged with enforcing the Love Field
amendment (the Government), moved the district
court for dismissal or, in the alternative, for summary
judgment. They alleged that Cramer lacks standing to
attack the statute, or that if Cramer has standing, he
cannot succeed on the merits. Cramer opposed the
Government’s motion and filed a cross-motion for
summary judgment. The district court granted the
Government’s motion and entered a take-nothing
judgment against Cramer. The district court agreed
with the Government that Cramer lacks standing to
challenge the Love Field amendment. Because the
district court found that the case did not present a
justiciable case or controversy, it did not reach the
merits of Cramer’s claims. We find that Cramer has
standing to challenge the Love Field amendment and
vacate the district court’s judgment based on
Cramer’s found lack of standing (which must
necessarily have been without prejudice). Cramer,
however, also appeals from the district court’s denial
of his cross-motion for summary judgment. We affirm
the district court’s denial of Cramer’s cross- motion
for summary judgment on the merits.!
1 The Government moved the district court to dismiss
Cramer's suit, or in the alternative, for summary judgment. The
district court did not specify whether it granted the
Government's motion to dismiss under Fed.R.Civ.P. 12(b), or if it
granted summary judgment under Fed.R.Civ.P. 56. Because the
district court may have considered matters outside the pleadings
in making its jurisdictional determination, it arguably considered
the standing issue on the Government's motion for summary
—————
3a
I. BACKGROUND AND PROCEDURE
Dallas, Texas and Fort Worth, Texas fought long
and bitterly over which city should have the principal
airport for the two-city metropolitan area. See City of
Dallas, Texas v. Southwest Airlines Co., 371 F.Supp.
1015, 1019 (N.D.Tex.1973) (rejecting request by cities
and regional airport board for declaratory judgment
Stating that they could exclude Southwest Airlines
from operating from Love Field), aff'd, 494 F.2d 773,
cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674
(1974). Love Field, built by Dallas, competed with
Fort Worth’s airports. As the district court in City of
Dallas found, this rivalry “resulted in unnecessary
expense to the carriers as well as the taxpayers and
inadequate and incomplete air service to both cities.”
Id. at 1020. In the late 1960s, the two cities settled
their dispute by building Dallas-Fort Worth
International Airport (DFW). As part of that
compromise, the eight airlines then serving the area
agreed to move to DFW.
Southwest Airlines (Southwest), which began
providing intrastate flights from Love Field in 1971,
refused to move to DFW, however, and obtained a
judgment that it could not be excluded from using
Love Field as long as Love Field remained open. /d.
For several years thereafter, Southwest operated
flights from Love Field to locations within Texas.
judgment. Even if the district court considered the standing
issue on the Government's motion for summary judgment,
however, it considered only the jurisdictional question and not
the merits of Cramer's claims.
4a
Because it operated from Love Field only intrastate,
Southwest was exempt from the regulations that
governed interstate airline operations under the
Federal Aviation Act of 1958, 49 U.S.C.App. § 1301 ef
seq. When Congress deregulated the airlines,
however, Southwest obtained authority from the Civil
Aeronautics Board (CAB) to operate flights from Love
Field to New Orleans. In so doing, CAB rejected the
argument of Dallas and Fort Worth and the Dallas-Fort
Worth Regional Airport Board that the Airline
Deregulation Act of 1978 (Deregulation Act), Pub.L.
No. 95-504, 92 Stat. 1705, included a provision
specifically intended to bar CAB from authorizing
interstate air service at such an airport over the
objections of the local airport proprietor.
Congress reacted to CAB’s decision by adopting
the Love Field amendment as part of legislation
further deregulating the airline industry. See
International Air Transportation Competition Act of
1979, § 29, Pub.L. No. 96-192, 94 Stat. 35, 48-49 (1980).
In essence, the Love Field amendment, which applies
only to Love Field, prohibits airlines from offering
single ticket interstate service from Love Field except
to the four states contiguous to Texas (the Love Field
service area).
Although this amendment restricts airline services
at Love Field, a traveler can obtain unrestricted airline
services at DFW, located 18 miles from the center of
Dallas and only 12 miles from Love Field. Travelers
also can use Love Field to reach points outside the
Love Field service area by taking a second flight.
Such travelers must buy a separate ticket for each leg
of the trip, however, and cannot check their baggage
5a
for the entire journey. The Love Field amendment
also. prohibits airlines from advertising § or
volunteering information on service outside the Love
Field service area. It does not prohibit an airiine,
however, from providing such information on request.
Southwest continues to provide interstate service at
Love Field subject to these statutory restrictions. No
other carrier now operates flights to Love Field with
large aircraft, although three carriers made attempts.’
On April 21, 1989, Cramer filed suit in federal
district court, alleging that the Love Field amendment
violates his rights to free speech and interstate travel.
Cramer’s second amended complaint sought a
judgment declaring the statute unconstitutional,
enjoining the defendants from enforcing the statute,
and awarding him $100 as compensatory or nominal
damages. The defendants are the United States of
America, Samuel K. Skinner in his capacity as
Secretary of Transportation, the United States
Department of Transportation (DOT), John V.
Coleman in his capacity as Director of DOT's Office of
Aviation Analysis, and the Office of Aviation Analysis.
The individual defendants in their official capacity,
DOT, and DOT’s Office of Aviation Analysis enforce
the Love Field amendment.
2 Texas International Airlines made the first such attempt. It
began operating interstate service from Love Field in 1980, but
subsequently terminated that service. Muse Air next attempted
to compete with Southwest at Love Field, but its operations were
financially unsuccessful. Southwest later acquired Muse Air and
terminated its operations. Finally, Continental Airlines in 1985
announced plans to begin airline operations at Love Field but
never began such service.
6a
On June 20, 1989, the Government filed a motion to
dismiss the complaint for lack of standing or, in the
alternative, for summary judgment. On July 7, 1989,
Cramer filed a cross-motion for summary judgment.
On April 11, 1990, the district court entered a
memorandum order dismissing the complaint
because Cramer failed to demonstrate standing to
challenge the Love Field amendment. The court held
that the Love Field amendment’s restrictions on
advertising had not injured Cramer because he could
obtain information on service beyond the Love Field
service area on request. The district court did not
question that Cramer’s right to interstate travel had
been injured, but reasoned that Cramer failed to show
that a favorable judgment was likely to redress that
injury. Because the district court dismissed Cramer’s
complaint for lack of standing, it did not rule on the
constitutional issues presented by the cross-motions
for summary judgment. Cramer filed a timely notice
of appeal.
Il. ANALYSIS
A. Standing
1. Standard of review
“Article Ill of the Constitution limits the ‘judicial
power’ of the United States to the resolution of ’cases’
and ‘controversies.’” Valley Forge Christian College v.
Americans for Separation of Church and State, Inc., 454
U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982).
The Supreme Court has inferred from the case or
controversy requirement that a litigant must have
lh
7a
“standing” to maintain an action in federal court. In
order for a litigant to establish standing, article Ill, at a
minimum, requires the litigant to show:
[1] that he personally has suffered some
actual or threatened injury as a result of
the putatively illegal conduct of the
defendant ...
[2] that the injury “fairly can be traced to the
challenged action” and
[3] [that the injury] “is likely to be redressed
by a favorable decision.”
Id. at 472, 102 S.Ct. at 758 (quoting Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96
S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976) (citation
omitted); see also Warth v. Seldin, 422 U.S. 490, 499,
95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In addition,
the Supreme Court has stated that a court should
consider three prudential concerns in determining
standing. See Valley Forge Christian College, 454 US.
at 471, 102 S.Ct. at 757; Gladstone, Realtors v. Village
of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607-08,
60 L.Ed.2d 66 (1979). Those considerations are:
1) whether the plaintiff's complaint falls
within the zone of interests protected by
the statute or constitutional provision at
issue;
2) whether the complaint raises abstract
questions amounting to generalized
grievances which are more appropriately
resolved by the legislative branches; and
8a
3) whether the plaintiff is asserting his or her
own legal rights and interests rather than
the legal rights and interests of third
parties.
Saladin v. City of Milledgeville, 812 F.2d 687, 690 (11th
Cir.1987) (citing Allen v. Wright, 468 U.S. 737, 751, 104
S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Valley Forge
Christian College, 454 U.S. at 474-75, 102 S.Ct. at 759-60;
Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. at 1608).
Different standards apply when a__ litigant
challenges standing on a Fed.R.Civ.P. 12(b) motion
than on a motion for summary judgment under
Fed.R.Civ.P. 56. When a court considers standing on a
motion for a Rule 12(b) dismissal, it must accept the
allegations in the pleadings as true. Lujan v. National
Wildlife Fed’n, — U.S. —, 110 S.Ct. 3177, 3184, 111
L.Ed.2d 695 (1990). When the defendant moves for
summary judgment because of lack of standing,
however, the plaintiff must submit affidavits and
comparable evidence that indicate that a genuine
issue of fact exists on the standing issue. /d. Cramer
contends that the district court considered the
standing issue on the Government’s motion for
dismissal under Rule 12(b) and that we should accept
the allegations contained in his complaint as true
even if not supported by admissible summary
judgment evidence. The Government, on the other
hand, contends that we should apply the summary
judgment standard and consider only Cramer's
admissible summary judgment evidence. The record
is unclear on whether the district court granted the
Government’s motion based on Rule 12(b) or Rule 56.
en if we apply the summary judgment standard and
orn’.
9a
consider only Cramer’s’§ admissible summary
judgment evidence, however, we conclude that
Cramer established standing.*
3 Although the language in the Government’s motion is not
entirely clear, the Government appears to ask the district court
for a Rule 12(b) dismissal on the basis of standing and for
summary judgment on the merits in the alternative. The
Government moved the court to dismiss this case or, in the
alternative, for summary judgment in their favor, pursuant to
Rule 56 of the Federal Rulesof Civil Procedure. The defendants
move the Court to dismiss the case for lack of jurisdiction, since
there is no case or controversy as required by the Constitution...
If the court does not dismiss the complaint, the defendants will
be entitled to a judgment against plaintiff as a matter of law, as
there is no issueof material fact.
The district court and both parties to this suit, however, treated
the standing issue as before the court on a motion for summary
judgment. In its memorandum order, the district court stated
that the action was “before it on cross-motions for summary
judgment” and concluded that because “Cramer has no standing
to challenge the constitutionality of the Love Field amendment,
the United States’ motion to dismiss or for summary judgment is
granted, while Cramer’s motion for summary judgment must be
denied.” The Government also treated the standing issue as
before the district court on a motion for summary judgment. In
connection with its motion, the Government submitted a
statement of material facts as to which no genuine issues existed,
and a statement of issues of law. Such a statement is pertinent
only to a motion for summary judgment. Many of the facts in the
Government's statement, and the first issue of law, concerned
Cramer's standing. See /squith v. Middle South Utilities, Inc., 847
F.2d 186, 192-95 (th Cir.1988) (finding that district court
dismissed based on summary judgment motion rather than Rule
12(b) because district court considered defendant’s statement of
undisputed facts). Furthermore, Cramer submitted affidavits to
the district court that were relevant both to the merits of his
10a
Cramer asserts three discrete injuries: (1)
deprivation of his first amendment right to hear, (2)
deprivation of his right of interstate travel, and (3)
economic injury. Because an adjudication of the
question of standing is not an adjudication on the
merits, we must assume that the conduct of which
Cramer complains is unconstitutional. Warth, 422 U.S.
at 502, 95 S.Ct. at 2207 (“We also assume, for
[standing] purposes ... that such ... practices, if
proved in a proper case, would be adjudged violative
of the constitutional .. rights of the persons
[affected ].”).
2. Right to hear
The Love Field amendment prohibits an airline
from “offer{ing] for sale” transportation to points
outside the Love Field service area. As interpreted by
DOT, this prohibition applies not only to airlines but
also to travel agents who act as agents for airlines.
Cramer asserts that the Love Field amendment’s
prohibition against air carriers and travel agents
volunteering information concerning travel beyond
claims and to the standing issue, and the district court did
not exclude these affidavits. In fact, in making its standing
determination, the district court considered a letter from
America West Airlines, attested to by an affidavit by Cramer's
attorney, that stated that America West would consider service
to Love Field if the Love Field amendment were declared
unconstitutional. The district court’s admission and
consideration of this evidence is significant because Rule 12(c)
states that “[i]f, on a motion for judgment on the pleadings,
matters outside the pleadings are presented to and not excluded
by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56....”
lla
the Love Field service area violates his first
amendment right to hear. The district court held
that, because “Cramer knows that he is entitled to
such information upon request, he is not being denied
any information he would receive if the Love Field
amendment were held unconstitutional.” The district
court did not address, and the Government does not
argue, whether Cramer’s asserted injury to his first
amendment right to hear is fairly traceable to the
Love Field amendment, or whether invalidation of the
Love Field amendment would redress his asserted
injury.
Cramer argues that the district court’s holding
conflicts with the Supreme Court’s decision in Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346
(1976). In Virginia State Bd. of Pharmacy, the Court
reasoned that “[i]f there is a right to advertise, there
is a reciprocal right to receive the advertising, and it
may be asserted [by would-be listeners].” /d. at 757,
96 S.Ct. at 1823. The Court reasoned:
We are aware of no general principle that
freedom of speech may be abridged when the
speaker’s listeners could come by his message
by some other means, such as seeking him out
and asking him what it is. Nor have we
recognized any such limitation on the
independent right of the listener to receive the
information sought to be communicated.
Id. at 757 n. 15, 96 S.Ct. at 1823 n. 15.
The Government argues that the passage quoted
above states only that would-be listeners have a first
a
12a
amendment right to receive commercial speech and
that they may assert that right despite their ability to
receive the information by asking. It does not relieve
the plaintiff, the Government argues, from the
necessity of demonstrating that he has suffered some
actual or threatened injury because of the defendant's
conduct. See Valley Forge Christian College, 454 U.S. at
472, 102 S.Ct. at 758. In effect, the Government argues
that only individuals who do not know that they can
request information can show an injury to their right
to hear commercial speech because would-be
listeners who know to ask for the information have
not been injured. We disagree.
The Supreme Court has described the injury
requirement for standing as an “injury in fact” that is
“distinct and palpable,” and not “abstract,”
“conjectural,” or “hypothetical.” See Allen, 468 U.S. at
751, 104 S.Ct. at 3324. If an individual’s statutory or
constitutional rights have been violated, and that
right is cognizable by the courts, he has suffered an
injury. That injury is insufficient to establish
standing, however, if it is a generalized grievance
common to all members of the public or if the injury
is merely abstract. Schlesinger v. Reservists Comm. to
Stop the War, 418 U.S. 208, 216-27, 94 S.Ct. 2925,
2929-30, 41 L.Ed.2d 706 (1974) (no standing as
taxpayers to challenge whether members of Congress
could hold commissions in the Armed Forces Reserve
under the incompatibility clause of article I); United
States v. Richardson, 418 U.S. 166, 175, 94 S.Ct. 2940,
2945, 41 L.Ed.2d 678 (1974) (plaintiff did not have
standing as taxpayer to argue that legislation that
permitted the CIA to withhold from the public
detailed information about its expenditures violated
13a
the accounts clause of the Constitution because “his
challenge was not addressed to the taxing or
spending power, but to the statutes regulating the
CIA.”). These requirements of an actual injury tend
“to assure that the legal questions presented to the
court will be resolved, not in the rarified atmosphere
of a debating society, but in a concrete factual context
conducive to a realistic appreciation of the
consequences of judicial action.” Valley Forge
Christian College, 454 U.S. at 472, 102 S.Ct. at 758. In
order to demonstrate standing, a plaintiff must allege
both a constitutional violation and an identifiable
personal injury resulting from that violation. /d. at
485, 102 S.Ct. at 765.
Cramer’s first amendment claim meets this
standard. Although Cramer does not allege a large or
intense personal injury, it is not merely an “ ‘abstract
injury in nonobservance of the Constitution asserted
by ... citizens.’ ” Valley Forge Christian College, 454
U.S. at 482, 102 S.Ct. at 764 (quoting Schlesinger, 418
U.S. at 223 n. 13, 94 S.Ct. at 2933 n. 13). In his affidavit,
Cramer states that he travels frequently to states
beyond the Love Field service area on regularly
scheduled passenger flights. He states that he
depends to some extent on airline personnel, travel
agents, or publications printed by the airlines to plan
his trips. The Love Field amendment, he contends,
makes planning his trips more difficult. |The
Government does not dispute these assertions.
The personal inconvenience that Cramer suffers in
planning his trips because of the Love Field
amendment may be slight, but it is nonetheless real
and nonetheless an injury. The Constitution draws no
a
14a
distinction between injuries that are large, and those
that are comparatively small. See United States v.
Students Challenging Regulatory Agency Procedures
(SCRAP), 412 U.S. 669, 686- 87, 689 n. 14, 93 S.Ct. 2405,
2415-16, 2417 n. 14, 37 L.Ed.2d 254 (1973) (“identifiable
trifle” is sufficient injury to establish standing;
standing is not “to be denied simply because many
people suffer the same injury”) (quoting Davis,
Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601,
613); Saladin, 812 F.2d at 691 (“There is no minimum
quantitative limit required to show injury; rather, the
focus is on the qualitative nature of the injury,
regardless of how small the injury may be.”); Action
Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937
(D.C.Cir.1986) (injury “will not suffice if it is too
speculative, but it need not be large or intense”)
(citation omitted).
The critical question for standing is not the extent
of the plaintiff's injury, but whether the plaintiff has
alleged “such a personal stake in the outcome of the
controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon
which the court so largely depends for the
illumination of difficult constitutional questions?”
Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7
L.Ed.2d 663 (1962). The injury in fact requirement
“serves to distinguish a person with a direct stake in
the outcome of a litigation—even though small—from
a person with a mere interest in the problem.” SCRAP,
412 US. at 689 n. 14, 93 S.Ct. at 2417 n. 14 (1973).
Cramer has such a direct stake.
Our resolution of the standing issue might be
different if Cramer had not suffered personally the
15a
inconveniences associated with the Love Field
amendment’s restrictions on commercial speech. His
injury, in that case, might well be speculative and
hypothetical. Cramer, however, has more than an
abstract interest in seeing that the Government
observes the Constitution—he is affected by the Love
Field amendment’s restrictions on speech whenever
he plans a trip beyond the Love Field service area.
The injury that Cramer asserts places his first
amendment issue in a “concrete factual context
conducive to a _ realistic appreciation of the
consequences of judicial action.” Valley Forge
Christian College, 454 U.S. at 472, 102 S.Ct. at 758.
Furthermore, we believe that the Supreme Court
meant what it said when it stated that the right to
receive advertising may be asserted by a would-be
listener even though the listener could obtain the
information simply by asking. Virginia State Bd. of
Pharmacy, 425 U.S. at 757, 96 S.Ct. at 1823. We
conclude, therefore, that Cramer has alleged a
sufficient injury to have standing to assert his first
amendment claim.‘
4 We also note that the Government's argument appears to
put the burden on the wrong shoulders. If the statute is, in fact,
unconstitutional, Cramer ought not to have to ask for the
information he seeks. Furthermore, the existence of the Love
Field amendment may have a chilling effect on the willingness of
travel agents to impart information even at Cramer's request,
thus impairing his ability to exercise his right to hear.
16a
3. Whether Cramer’s injuries are likely to be
redressed by a favorable decision of the court
The district court did not hold that Cramer failed
to demonstrate an injury to his right to interstate
travel, or that any of his asserted injuries were not
fairly attributable to the Government's putatively
illegal conduct. Rather, it held that Cramer failed to
demonstrate that a favorable ruling by the court
would redress his alleged injury to his right to
interstate travel.®
The Supreme Court’ has _ articulated’ the
redressability component for standing in various
ways. In Valley Forge Christian College, the Court
inquired whether the asserted injury was “ ‘likely to
be redressed by a favorable decision.’ ” 454 U.S. at
472, 102 S.Ct. at 758 (quoting, Simon, 426 U.S. at 38, 96
S.Ct. at 1924). In Allen, the Supreme Court inquired if
“the prospect of obtaining relief from the injury as a
result of a favorable ruling [was] too speculative?”
468 U.S. at 752, 104 S.Ct. at 3325. And in Warth, the
Supreme Court stated that the plaintiff “must allege
facts from which it reasonably could be inferred that
... there is a substantial probability” that the asserted
injury will end “if the court affords the relief
requested.” 422 U.S. at 504, 95 S.Ct. at 2208. Under
any of these formulations of the redressability
requirement, the plaintiff need show that only one of
his asserted injuries will be redressed by a favorable
ruling. Larson v. Valente, 456 U.S. 228, 243 n. 15, 102
5 The district court did not consider Cramer's alleged
economic injury.
17a
S.Ct. 1673, 1682 n. 15, 72 L.Ed.2d 33 (1982) (“[A]
plaintiff satisfies the redressability requirement when
he shows that a favorable decision will relieve a
discrete injury to himself. He need not show that a
favorable decision wiil relieve his every injury.”)
(emphasis in original).
Cramer argues that three distinct injuries might be
redressed by a favorable ruling: injury to his first
amendment rights, injury to his right to interstate
travel, and economic injury. Because the district
court found that Cramer had not demonstrated an
injury in fact to his first amendment rights, it did not
address whether that injury might be redressed by a
favorable ruling. The district court also did not
address whether a favorable ruling would redress
Cramer’s economic injury. The district court did find,
however, that a favorable ruling would not redress
Cramer’s injury to his right to interstate travel
because Cramer had not shown that an airline was
willing to relieve the inconveniences caused by the
Love Field amendment if the amendment were found
unconstitutional.
Cramer need show that only one of his alleged
injuries would be redressed by a favorable ruling, and
neither the Government nor the district court has
argued that a favorable ruling would not redress
Cramer's alleged injury to his first amendment rights.
That injury would be redressed if, because of a
favorable ruling, an air carrier or travel agent
advertised, published, or volunteered information
concerning service outside the Love Field service
area. Cramer satisfied this requirement by supplying
the affidavit of a travel agent stating that she would
18a
inform clients concerning connecting flights to
locations outside the Love Field service area if the
Love Field amendment were invalidated. In fact, in
arguing that Cramer’s alleged economic injury would
not be redressed by a favorable ruling, the
Government apparently concedes that a favorable
ruling would’ redress Cramer's alleged first
amendment and interstate travel injuries. The
Government argues that, although Cramer could not
receive damages, “Cramer’s [other] alleged injuries ...
would be remedied if the court awarded the
declaratory and injunctive relief sought by him.”
Although we conclude that a favorable ruling
would redress the injury to Cramer’s first amendment
rights, we also conclude that he alleged sufficient
facts from which we reasonably can infer that a
substantial probability exists that his alleged injury to
his right to interstate travel also would be redressed
by a decision in his favor. Warth, 422 U.S. at 504, 95
S.Ct. at 2208 (“Petitioners must allege facts from
which it reasonably could be inferred that ... there is a
substantial probability [that the asserted injury would
end] if the court affords the relief requested”).
Cramer’s injury would be redressed if additional
carriers commenced service at Love Field®, if
6 Cramer provided a letter from America West stating that
America West was “seriously interested in providing service to
Love Field [and] ... would promptly consider the institution of
service to and from Love Field” were the statute invalidated.
Because America West did not firmly commit to beginning
service from Love Field, however, the district court concluded
that this letter did not demonstrate the likelihood that America
West actually would commence service as a result of a favorable
19a
Southwest instituted through fares at Love Field, or if
Southwest ceased the inconveniences now mandated
by the Love Field amendment, such as requiring
passengers to depart from a flight continuing beyond
the Love Field service area to the passenger’s ultimate
destination.
One can reasonably infer that Southwest would
sell through tickets to areas outside the Love Field
service area were it permitted to do so, just as it does
at its other locations. The Government observes that
Southwest is the only carrier at Love Field and argues
that for this reason Southwest might not wish to offer
the lower priced through fares. The Government
overlooks, however, that Southwest currently
competes with airlines offering service from DFW, just
twelve miles away.
Cramer also argues that one can infer from
Southwest’s consistent practice at other locations
that it would not continue to inconvenience
passengers from Love Field were it not constrained to
do so. At the least, Cramer argues, Southwest would
not continue to require a passenger to depart from a
ruling. We do not necessarily agree with the district court's
interpretation of this letter. America West hardly could be
expected to provide an absolute commitment without knowing
when, if ever, the amendment would be invalidated, and without
knowing the state of America West's, the nation’s, or the
Dallas/Fort-Worth area’s economy at that time. In these
circumstances, America West's statements appear reasonably
firm. We also note that America West filed an amicus brief in this
court stating that it is “actively interested” in providing service
from Love Field and does not currently offer such service
because of the Love Field amendment.
flight continuing to the passenger’s final destination,
require the passenger to collect luggage, buy another
ticket, and wait at least forty-five minutes before
continuing on another flight. The Government argues
that such a conclusion is mere speculation. We find
such an inference reasonable, however, based on
Southwest’s self-interest, consistent practice, and
common sense.
We conclude that Cramer satisfied the
redressability requirement for standing by offering
sufficient evidence from which we reasonably can
infer the substantial probability that at least one of
his alleged injuries would be redressed by a favorable
decision. Because the district court did not address,
and the Government does not argue, that Cramer's
alleged injuries are not fairly traceable to the illegal
conduct, we conclude that Cramer has standing to
challenge the Love Field amendment.
B. Merits
Because we find that Cramer has standing to
challenge the Love Field amendment, and because the
parties have fully briefed the merits of this dispute
(which does not present any contested issues of
material fact), we consider Cramer’s appeal from the
district court’s denial of his cross-motion for
summary judgment. Cramer argues that he was
entitled to summary judgment because the Love Field
amendment abridges his first amendment and
interstate travel rights and because the Government
has not advanced a governmental interest sufficient
to justify these abridgments.
2la
1. Restrictions on Cramer’s right to interstate
travel
Although no clause in the Constitution specifically
provides a right to interstate travel, the Supreme
Court has inferred this right from various
constitutional provisions and from the structure of
the federal system itself. In his interstate travel
argument, Cramer relies principally upon the due
process clause of the fifth amendment, the privileges
and immunities clause of article IV’, the assembly
clause of the first amendment, and the _ port
preference clause of article I. Cramer’s argument
under each of these clauses is essentially the same.
He asserts that the Love Field amendment infringes a
fundamental right and that the Government has not
advanced a compelling interest to justify the
infringement.
7 Cramer appears to confuse the privileges-and immunities
clause of article lV, however, with the privileges and immunities
clause of the fourteenth amendment. The privileges and
immunities clause article IV states that “[t]he citizens of each
state shall be entitled to all Privileges and Immunities of Citizens
in the several States.” U.S. Const. art. IV, 2, cl. 1. The privileges
and immunities clause of article IV merely limits the right of
states to exclude citizens of other states from privileges granted
to its own citizens. United States v. Wheeler, 254 U.S. 281, 41S.Ct.
133, 65 L.Ed. 270 (1920). While we have held that state legislation
may violate the privileges and immunities clause of article IV if it
unjustifiably denies the right to travel, that clause applies only to
state legislation and does not govern federal statutes. See e.g,
Frazier v. Heebe, 788 F.2d 1049, 1052 (Sth Cir.1986), rev'd on other
grounds, 482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987).
22a
We do not write on an entirely clean slate in
determining whether the Love Field amendment
impermissibly infringes on Cramer’s right to
interstate travel. In City of Houston v. F.A.A., 679 F.2d
1184, 1198 (Sth Cir.1982), we upheld = similar
restrictions placed on the use of Washington’s
National Airport (National). We rejected in that case
a challenge to Federal Aviation Administration
regulations that prohibited the use of National for
non-stop flights to cities more than 1,000 miles from
Washington. Under those regulations, a traveler from
a location more than 1,000 miles from Washington
must stop or change planes in a city less than 1,000
miles, or take a direct flight to Dulles International
Airport (Dulles), or Baltimore-Washington
International Airport. National, however, is close to
the center of Washington, while Dulles is 26 miles
west of downtown. /d. at 1186, 1187. The plaintiffs in
City of Houston argued, inter alia, that the perimeter
rule at issue in that case infringed upon their right to
interstate travel and violated the port preference
clause. In rejecting their challenge, we reasoned that
{a]t most, their argument reduces to the feeble
claim that passengers have a constitutional
right to the most convenient form of travel.
That notion, as any experienced traveler can
attest, finds no support...
Id. at 1198.8
8 The Second Circuit upheld a similar perimeter rule in
Western Air Lines, Inc. v. Port Authority, 817 F.2d 222 (2dCir.1987),
cert. denied, 485 U.S. 1006, 108 S.Ct. 1467, 99 L.Ed.2d697 (1988).
23a
In his attempt to distinguish City of Houston,
Cramer seizes upon dictum stating that an attempt
“completely to bar travelers from distant cities from
flying to National Airport ... might well give rise to a
constitutional claim.” /d. at 1192. Cramer argues that
the Love Field amendment represents just such an
attempt to bar all travelers from outside the Love
Field service area from flying to Love Field. We
disagree.
The Love Field amendment does not bar travelers
from distant cities from using Love Field. Rather, just
as the perimeter rule at issue in City of Houston, it
makes travel less convenient for such passengers.
Love Field remains attractive for many long-distance
travelers, apparently including Cramer himself,
despite the statutory restrictions.
Cramer also argues that the Love Field amendment
is fatally different from the perimeter rule at issue in
City of Houston because Congress chose to define
Love Field’s permissible service area by using state
borders. The use of state borders to define the
permissible service area, he argues, penalizes
interstate travel as interstate travel—the precise evil
the Constitution prohibits. Cramer cites no authority,
however, for the proposition that a Congressional
Statute regulating commerce may not use state
boundaries for definitional purposes, nor can we
The rule at issue in that case also required passengers
traveling a long distance to use a less convenient airport. The
plaintiff, however, did not argue that the rule violated the
constitutional right to travel.
24a
discern any reason Congress should be prohibited
from using such borders. Cramer, we note, does not
allege that the Government had a discriminatory
purpose for using such borders. Any geographical
limit for air service from Love Field must be
somewhat arbitrary, but we reject Cramer’s assertion
that the use of state borders for definitional purposes
violates the Constitution.
In a further attempt to distinguish City of Houston,
Cramer argues that the Love Field amendment’s
statutory restrictions, in contrast to the regulations
we upheld in City of Houston, are irrational because
they are unnecessary. He argues that the perimeter
rule was needed to protect Dulles because Dulles was
underused, but the Love Field amendment is not
needed to protect DFW because DFW is a busy
airport. We disagree that the Love Field amendment’s
restrictions are irrational. The Love Field amendment
carries out the agreement between Dallas and Fort
Worth that ended the competition between those
cities for the area’s principal airport. The success of
DFW illustrates the importance of that agreement.
Cramer contends, in effect, that the very success of
that agreement, as measured by the traffic at DFW,
indicates that the agreement is irrational’. We
disagree.
9 Congress may, in the future, elect to respond to changing
conditions at Love Field. That case is not before us, and we do
not intimate what our response might be to such a Congressional
decision.
25a
As we stated in City of Houston, travelers do not
have a constitutional right to the most convenient
form of travel. /d. at 1198. Minor restrictions on
travel simply do not amount to the denial of a
fundamental right that can be upheld only if the
Government has a compelling justification. See
Attorney General of New York v. Soto-Lopez, 476 U.S.
898, 903, 106 S.Ct. 2317, 2321, 90 L.Ed.2d 899 (1986) (a
state law only implicates the right to travel when it
actually deters such travel, when impeding travel is
its primary objective, or when it uses any
classification that serves to penalize the exercise of
the right to travel). Cramer remains free to travel
unrestricted to points outside the Love Field service
area from Dallas by using DFW, or he can take a
second flight from a point within the Love Field
service area. The amendment does not deter Cramer
from travelling by air, and the statute’s history shows
that its purpose was not to impede travel but to carry
out an agreement thought necessary to benefit the
region’s travelers by consolidating service at DFW.
See H.R.Rep. No. 96-716, 96th Cong., Ist Sess. 24,
U.S.Code Cong. & Admin.News 1980, pp. 54, 86
(purpose of amendment was to provide “a fair and
equitable settlement for a dispute that has raged in
the Dallas/Fort Worth area for many years”). In
addition, unlike a residency requirement, the Love
Field amendment does not use any classification that
penalizes a person’s exercise of his or her right to
travel. If every infringement on interstate travel
violates the traveler's fundamental constitutional
rights, any governmental act that limits the ability to
travel interstate, such as placing a traffic light before
—
26a
an interstate bridge, would raise a constitutional
issue.!°
In City of Houston, we also rejected the argument
that the perimeter rule violated the port preference
clause. The port preference clause provides:
No Preference shall be given by any Regulation
of Commerce or Revenue to Ports of one State
over those of another; nor shall Vessels bound
to, or from, one State be obliged to enter, clear,
or pay duties in another.
10 For example, in Jones v. Helms, 452 U.S. 412, 101 S.Ct.2434,
69 L.Ed.2d 118 (1981), the Supreme Court upheld a state law that
made it a felony if a parent willfully and voluntarily abandons a
dependent child and then leaves the state. In rejecting the claim
that the statute violates the right to interstate travel, the
Supreme Court did not require the state to show a substantial
need for the law. The Court reasoned that because the law's
restrictions on interstate travel do “not infringe upon appellee's
fundamenta! rights,” the state “need not employ the least
restrictive, or even the most effective or wisest, means to
achieveits legitimate ends.” Id. at 425-26, 101 S.Ct. at 2443.
Similarly, in Niles v. University Interscholastic League, 715 F.2d1027
(Sth Cir.1983), cert. denied, 465 U.S. 1028, 104 S.Ct. 1289,79
L.Ed.2d 691 (1984), we upheld a school district rule that prevents
students from playing on interscholastic athletic teams until the
student has been a resident of the district for one year. The
student contended that he could not comply with the residency
requirement because he had been living with his mother in
another state and argued that the rule violated his right to
interstate travel. In rejecting his argument, we reasoned that the
rule was not a significant infringement on the student's right to
travel. /d. at 1030-31.
27a
U.S. Const. art. I, § 9, cl. 6. Cramer contends that the
Love Field amendment violates the port preference
clause because it requires vessels bound from Love
Field to enter and pay duties to one of the four states
contiguous to Texas before continuing.'! The Love
Field amendment, Cramer argues, results in a
detriment to Love Field, a port of Texas, and to the
ports of those states not accessible from Love Field.
We stated in City of Houston that a statute that
results in some detriment to the port of a state does
not violate the port preference clause when the
detriment occurs “(i) as an incident to some
otherwise legitimate government act regulating
commerce or (ii) more as a result of the accident of
geography than from an intentional government
preference.”!? City of Houston, 679 F.2d at 1197. The
Love Field amendment satisfies both tests.
11 Cramer notes that passenger aircraft are required to pay
landing fees when landing at most airports. He argues that
because some of the airports in contiguous states undoubtedly
are owned by those states, aircraft are required, in essence, to
pay duties to those states.
12 In articulating this rule, we relied upon a line of Supreme
Court cases interpreting the port preference clause. In South
Carolina v. Georgia, 93 U.S. 4, 13, 23 L.Ed. 782 (1876), the Supreme
Court held that “the prohibition of such a preference does not
extend to acts which may directly benefit the ports of one State
and only incidentally injuriously affect those of another.”
Similarly, in Alabama Great Southern R.R. Co. v. United States,
340U.S. 216, 229, 71 S.Ct. 264, 272, 95 LEd. 225 (1951), the
Supreme Court upheld an Interstate Commerce Commission
order that allegedly gave a preference to a New Orleans port over
ports in other states on the ground that “whatever preference
28a
Cramer, however, argues that the Love Field
amendment’s detriment to Love Field is not incident
to a legitimate Government act because Congress’
sole purpose in enacting the amendment was to
restrict interstate travel. We disagree. Congress did
not decide to cut back service at Love Field, as
Cramer assumes, for no reason. Congress enacted the
Love Field amendment incident to its legitimate
regulation of interstate airline service and pursuant to
its rational decision to maintain the agreement
between Dallas and Fort Worth.’ Furthermore,
although Congress used state borders to define the
area of unrestricted service, the four states allegedly
preferred by the amendment benefit “as a result of an
accident of geography.” Cramer, in fact, does not
suggest that Congress chose those borders for any
reason except that they happened to be the states
closest to Dallas and Fort Worth.'4
there is to New Orleans is a result of geography and not of
any action of the Commission.”
13 The Conference Committee stated that the Love Field
amendment “provides a fair and equitable settlement for a
dispute that has raged in the Dallas/Fort Worth area for many
years” and has been agreed to by “Southwest Airlines, the City of
Dallas, the City of Fort Worth, DFW Airpert authority, and related
constituent groups.” H.R.Rep. No. 96-716, 96th Cong. Ist Sess. 24
(1979),U.S.Code Cong. & Admin. News 1980, p. 86.
14 The purpose of the Port Preference Clause, as we stated in
City of Houston, is to give “small states protection against
deliberate discrimination against them by other, more powerful
states.” Id. at 1198. Cramer has not demonstrated that Congress
deliberately discriminated against the 45 states not bordering on
Texas by requiring travelers from such states to use DFW if they
29a
Cramer also argues that the Love Field amendment
violates the assembly clause of the first amendment.!°
He discusses the “freedom riders” of the
desegregation movement, and the 1964 march on
Washington. He argues that approval of the Love
Field amendment could open the door at some future
date to a facially neutral statute whose actual purpose
is to suppress dissent by inhibiting interstate travel.
The Love Field amendment’s restraints on interstate
travel, he contends, should be considered analogous
to restraints on speech; and because the Love Field
amendment uses state borders to define the service
area, we should treat the Love Field amendment’s
restrictions on travel as analogous to regulations on
the content of speech. Such a regulation, he
contends, should be upheld only if the Government
asserts a compelling justification. Although a facially
neutral restriction on travel intended to inhibit first
amendment rights is not beyond the realm of
possibility, Cramer does not contend that he has a
political motive for his travel or that Congress had an
ulterior motive in enacting the Love Field amendment.
In these circumstances, Cramer cannot rely on any
incidental effects such a restriction may have on his
right to free association.
2. First Amendment
Cramer contends that the Love Field amendment’s
restrictions on speech infringe his first amendment
wish to travel to Dallas-Fort Worth on a non-stop or
“through” ticket.
15 Cramer, however, cites no precedent for this proposition.
30a
right to receive lawful, truthful commercial
information. See Virginia State Bd. of Pharmacy, 425
U.S. at 748, 96 S.Ct. at 1819. To evaluate this
argument, we first must determine whether the
speech at issue is commercial. If so, we must
ascertain if it receives first amendment protection.
Finally, if the first amendment protects the speech, we
must decide if the Love Field amendment’s
restrictions violate the first amendment.
“Commercial speech” is speech whose purpose is
to “propose a commercial transaction.” Board of
Trustees of the State University of New York v. Fox, 492
U.S. 469, 109 S.Ct. 3028, 3031, 106 L.Ed.2d 388 (1989).
Classification of the speech as commercial does not
become inappropriate merely because the speech is
mixca with pure speech or touches on matters of
public concern. /d. The Love Field amendment states
that airlines may not offer service from Love Field to
points outside the Love Field service area. DOT's
interpretation of that provision allows carriers to
provide information and sell transportation to points
outside the Love Field service area on request from a
traveler, but forbids airlines (and travel agents) from
advertising or offering to sell such transportation to
travelers who do not request it. DOT Order 85-12-81.
The purpose of offering or advertising service to
points outside the Love Field service area is to
propose a commercial transaction. The speech at
issue, therefore, meets the Supreme Court's definition
of “commercial speech.”
Commercial speech receives the protection of the
first amendment when it “concern[{s] lawful activity
and [is] not ... misleading.” /d., 109 S.Ct. at 3032
3la
(quoting Central Hudson Gas & Elec. Corp. v. Public
Service Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351,
65 L.Ed.2d 341 (1980)).'© The sale of airline tickets is
lawful, and the Love Field amendment restricts
airlines and travel agents from offering truthful
information concerning connecting flights to areas
outside the Love Field service area. The speech at
issue in this case, we conclude, is truthful and
concerns a lawful activity and therefore receives first
amendment protection.
The Supreme Court articulated the test for
determining whether restrictions on commercial
speech violate the first amendment in Central Hudson.
Id. at 566, 100 S.Ct. at 2351; see also Posadas de Puerto
Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328,
340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986).
Commercial speech may be “restricted only if the
government's interest in doing so is substantial, the
restrictions directly advance the government's
asserted interest, and the restrictions are no more
extensive than necessary to serve that interest.”!’
16 Cramer argues that commercial speech that proposes a
transaction that would facilitate the exercise of the right to
interstate travel, or any fundamental right, should be afforded
protection equivalent to that afforded non-commercial speech.
Even assuming that this argument is correct, it is unavailing in
these circumstances because we have concluded that the Love
Field amendment does not violate Cramer's right to interstate
travel.
17 The Supreme Court has upheld substantial restrictions on
commercial speech under this standard. See e.g, Posadas, 478
U.S.328, 106 S.Ct. 2968 (upholding prohibition on advertising
gambiing casinos to Puerto Rico residents).
aie
32a
Posadas, 478 U.S. at 340, 106 S.Ct. at 2976 (citing
Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351).
Under the Central Hudson test, we first must
determine if the Government has a _ substantial
interest in restricting information concerning travel
from Love Field to locations outside the Love Field
service area. Cramer contends that the Government
has not asserted a substantial interest. We disagree.
The purpose of the Love Field amendment, as stated
in the Conference Committee report, was to provide
“a fair and equitable settlement for a dispute that has
raged in the Dallas/Fort Worth area for many years”
and has been agreed to by “Southwest Airlines, the
City of Dallas, the City of Fort Worth, DFW Airport
authority, and related constituent groups.” H.R.Rep.
No. 96-716, 96th Cong. Ist Sess. 24 (1979), U.S.Code
Cong. & Admin.News 1980, p. 86. We conclude that
Congress had a substantial interest in resolving the
dispute between Dallas and Fort Worth, a controversy
that had long hindered efforts to improve airline
service for the Dallas-Fort Worth area. See City Of
Dallas, 371 F.Supp. at 1020.'8
We next must determine whether the Love Field
amendment’s restrictions on commercial speech
directly advance the Government's interest in
18 We note that the intervenors in this case argue that the
Love Field amendment is a legitimate health and safety
regulation. They contend, inter alia, that the current regulations
work to prevent or minimize engine parts from literaily falling
from the skies, from creating a class of virtual noise refugees, and
from worsening the already serious asthmatic conditions of
residents.
33a
providing a “fair and equitable settlement” for the
dispute between Dallas and Fort Worth. Dallas and
Fort Worth agreed that DFW should be the principal
airport for the two-city metropolitan area. The Love
Field amendment’s restrictions on advertising directly
advance that interest by encouraging the use of DFW
rather than Love Field. It encourages the use of DFW
because some travelers may not realize that service
beyond the Love Field service area is available from
Love Field and by making travel beyond the Love
Field service area from Love Field somewhat more
difficult even for travelers who realize that such
information is available upon request.'9
19 In Virginia State Bd. of Pharmacy, the Supreme Court
rejected the argument that restrictions on providing information
concerning drug prices was supported by a substantial
Government interest in promoting high professional standards
among pharmacists. Virginia State Bd. of Pharmacy, 425 U.S. at
768, 96S.Ct. at 1829. The Court reasoned that the Board's
argument was greatly undermined “by the close regulation to
which pharmacists in Virginia are subject,” and because the
Board's justifications were based on a paternalistic desire to
protect the public. /d. The Government's interest in enacting the
Love Field amendment, however, does not suffer from these
infirmities. Although the airline industry is highly regulated,
Congress enacted the Love Field amendment to discourage the
use of Love Field for long-distance flights and not to promote
professional standards in the airline industry or in a paternalistic
attempt to protect the public by denying it information.
The most significant distinction between Virginia State Bd. of
Pharmacy, however, and the instant case is that the regulations
atissue in Virginia State Bd. of Pharmacy did not directly
advancethe Government's asserted interest. The Board's
asserted goals of promoting professionalism among pharmacists
34a
The challenged statute also satisfies the last prong
of the Central Hudson test because the restrictions on
commercial speech are no more extensive than
necessary to serve the Government’s interest. The
critical question, as clarified by the Supreme Court’s
opinion in Board of Trustees, is whether a reasonable
fit exists between the challenged advertising
restrictions and the Government’s asserted interest.
Board of Trustees, 492 U.S. at 473-77, 109 S.Ct. at
3032-35. The Love Field amendment’s limitation on
advertising reduces the demand for service to points
outside the Love Field service area and thus helps to
preserve the agreement between Dallas and Fort
Worth. Without the ban on advertising, more
intrusive restrictions might be necessary to carry out
Congress’ decision to keep service at Love Field from
undermining the agreement between Dallas and Fort
Worth. We conclude, therefore, that the Love Field
amendment satisfies each prong of the Central Hudson
test and does not amount to a constitutionally
impermissible infringement on Cramer’s right to
receive lawful, truthful commercial speech. The
district court did not err, therefore, by not granting
Cramer’s cross-motion for summary judgment.
and improving the public's health in the Virginia State Bd. of
Pharmacy could be accomplished as well by informing the public
fully so that they could make their own informed choice as to the
drugs they wished to purchase. The Government's purpose in
enacting the Love Field amendment (implementing the
agreement between Dallas and Fort Worth by reducing interstate
travel from Love Field) could not be accomplished as easily
without the restrictions on advertising.
a
35a
Ill. CONCLUSION
For the foregoing reasons, we conclude that the
district court erred by dismissing Cramer’s suit for
lack of standing, but properly denied Cramer’s
cross-motion for summary judgment. Although the
Government has fully briefed the merits of its motion
for summary judgment, we cannot order judgment on
the merits for the Government because the
Government did not cross-appeal from the district
court’s jurisdictional dismissal. United States v.
American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct.
560, 563, 68 L.Ed. 1087 (1924) (party who does not
cross-appeal may not seek to enlarge his own rights
or lessen those of his adversary); Ayers v. United
States, 750 F.2d 449 (Sth Cir.1985). We therefore
vacate and remand with instructions to the district
court to consider the Government’s motion for
summary judgment and for further proceedings
consistent with this opinion. Costs shall be borne by
Cramer.
VACATED AND REMANDED.
36a
APPENDIX B
STATUTORY PROVISIONS INVOLVED
Section 29 of the International Air Transportation
Competition Act of 1979, Pub.L. No. 96-192, 94 Stat. 35
(1980).
Sec. 29. (a) Except as provided in subsection
(c), notwithstanding any other provision of law,
neither the Secretary of Transportation, the
Civil Aeronautics Board, nor any other officer
or employee of the United States shall issue,
reissue, amend, revise, or otherwise modify
(either by action or inaction) any certificate or
other authority to permit or otherwise
authorize any person to provide’ the
transportation of individuals, by air, as a
common carrier for compensation or hire
between Love Field, Texas, and one or more
points outside the State of Texas, except (1)
charter air transportation not to exceed ten
flights per month, and (2) air transportation
provided by commuter airlines operating
aircraft with a passenger capacity of 56
passengers or less.
(b) Except as provided in subsections (a) and
(c), notwithstanding any other provision of law,
or any certificate or other authority heretofore
or hereafter issued thereunder, no person shall
provide or offer to provide the transportation
of individuals, by air, for compensation or hire
as a common carrier between Love Field,
Texas, and one or more points outside the
State of Texas, except that a person providing
37a
service to a point outside of Texas from Love
Field on November 1, 1979, may continue to
provide service to such point.
(c) Subsections (a) and (b) shall not apply with
respect to, and it is found consistent with the
public convenience and necessity to authorize
transportation of individuals, by air, on a flight
between Love Field, Texas, and one or more
points within the States of Louisiana, Arkansas,
Oklahoma, New Mexico, and Texas by an air
carrier, if (1) such air carrier does not offer or
provide any through service or ticketing with
another air carrier or foreign air carrier, and (2)
such air carrier does not offer for sale
transportation to or from, and the flight or
aircraft does not serve, any point which is
outside any such State. Nothing in this
subsection shall be construed to give authority
not otherwise provided by law to the Secretary
of Transportation, the Civil Aeronautics Board,
any other officer or employee of the United
States, or any other person.
(d) This section shall not take effect if enacted
after the enactment of the Aviation Safety and
Noise Abatement Act of 1979.
38a
APPENDIX C
Order 85-12-81
UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
WASHINGTON, D.C.
No. 43307
LOVE FIELD AMENDMENT PROCEEDING
Issued by the Department of Transportation
on the 3lst day of December, 1985
ORDER
By Order 85-7-65 (July 26, 1985), the Department
requested comments on the interpretation of the Love
Field Amendment (Amendment) (Sec. 29, International
Air Transportation Competition Act of 1979, Pub. L.
96-192, 94 Stat. 35 (1980)), which restricts service by
air carriers at Love Field, Texas.! Our request for
1 The question of proper interpretation of the Love Field
Amendment was. previously raised in the Southwest
Airlines—Muse Air Acquisition Proceeding, where the Department
found it unnecessary to reach the issue in its decision. Order
——
—
39a
comments followed announcement by Continental
Airlines of its intention to commence service at Love
Field and opposition of various persons to this
service. On July 10, 1985, the Dallas/Fort Worth
(DFW) Parties? submitted a letter to the Department’s
Office of Aviation Enforcement and Proceedings
seeking an informal enforcement investigation and
order prohibiting Continental’s proposed service.
In view of the current dispute regarding Love Field
service, and because the issue is primarily a question
of law, we asked for comments to assist us in
interpreting the Amendment. Responders were asked
to specifically address the questions of whether an air
carrier can serve Love Field on a non-interline basis, if
the carrier interlines elsewhere on its system; and
whether the Amendment applies to intrastate service.
We received comments and reply comments from:
Air Midwest, America West Airlines, Continental Air
Lines, the Dallas/Fort Worth Parties, Delta Air Lines,
the Department of Justice, the Regional Airline
Association, Republic Airlines, and Southwest
Airlines, Co., and several letters from the general
public. In addition to comments concerning statutory
interpretation, several parties raised related
questions about marketing of Love Field services in a
manner consistent with provisions of the Amendment.
85-6-79 (June 24, 1985). We did, however, suggest that the
issue should be resolved in another context. /d.
2 The DFW Parties are the City of Dallas, Texas, the City of
Fort Worth, Texas, and the Dallas—Fort Worth International
Airport Board.
40a
We have considered all comments and have also
taken notice of Orders 80-3-9, 80-5-12, 80-8-181, and
80-12-102 of the Civil Aeronautics Board, the pleadings
in City of Dallas v. CAB, Case Nos. 80-2064 and 81-1192
(D.C. Cir. 1980), and the legislative history of the
Amendment in interpreting its meaning.
After careful review of these matters, the
Department has decided that: 1) Continental’s
proposed service between Love Field and Houston,
Texas, does not violate the Love Field Ameridment; 2)
the Amendment does not apply to flights by intrastate
carriers or intrastate service by an ‘air carrier’; 3)
upon the request of passengers, Continental or its
agents may sell ‘double tickets’ to passengers
continuing on a different aircraft and flight beyond an
authorized destination from Love Fie!d; 4) however,
neither Continental nor its agents may list in any
manner, including a computer reservation system, a
flight from Love Field as a ‘connection’ to a point
beyonc the Love Field authorized service area; 5)
Delta, or any other airline, may list in its computer
reservation system flights from Love Field by a
certificated carrier using small aircraft in the same
manner as commuter carrier flights; and 6) intrastate
and air carriers may provide service between Love
Field and other points within the state of Texas so
long as they do not use this service to avoid the Love
Field Amendment’s restrictions on interstate air
service.
————
4la
BACKGROUND
Since the completion of Dallas/Ft. Worth Regional
Airport (DFW), which resoived a long-standing rivalry
between Dallas and Ft. Worth for interstate service to
their communities, the DFW Parties have sought to
prohibit interstate service at other area airports. The
DFW ~Parties, in fact, previously asked the CAB to
prohibit interstate service at area airports other than
DFW, especially Love Field. The CAB refused to do so.
The DFW Parties’ argument for this prohibition in the
years immediately following completion of the
regional airport was that interstate operations at Love
Field would damage the viability of the new airport.
See Order 79-9-192 (September 28, 1979).
In addition, the Airline Deregulation Act of 1978
(Pub. L. 95-504, 92 Stat. 1705 (1978)) substantially
changed the Federal government’s regulatory
oversight of air transportation. In particular, the Act
includes a provision, as part of the listing of public
interest elements, concerning the use of satellite
airports and the power of regional authorities over
their use. Section 102(a)(6), 49 U.S.C. 1302(a)(6).
Some members of the House of Representatives
apparently believed this provision would prohibit the
CAB from authorizing interstate service at Love Field,
but the Conference Report on the subsequently
passed Love Field Amendment indicates the Senate
did not share this view. S. Rep. No. 96-531, 96th Cong.,
Ist Sess. (1980) [hereafter, Conference Report]. The
Deregulation Act also includes provisions, known as
the Automatic Market Entry (AME) program, that
allowed carriers to enter certain markets prior to
Diener secnsesiesenea erence cme caeenesmentnn
42a
complete route deregulation without a CAB finding
that entry was needed. Section 401(d)(7), 49 U.S.C.
1371(d)(7). Under the AME provisions, the CAB ruled
that Southwest Airlines could provide interstate
service from Love Field, notwithstanding section
102(a)(6). Order 79-9-192 (September 29, 1979).
Congress subsequently addressed the dispute
respecting service at Love Field in an amendment to
the International Air Transportation Competition Ac.
(ATCA). Congressman Jim Wright initially introduced
an amendment to IATCA, passed by the House, that
effectively prohibited all interstate air service at Love
Field. However, the Senate version of IATCA
contained no similar provision. The Conference
Committee adopted a compromise solution to settle
the controversy, producing the current Love Field
Amendment. It rejected Congressman Wright's total
ban on interstate air service at Love, but imposed
substantial restrictions. Subsection (a) of the
Amendment prohibits the CAB or its successor from
authorizing interstate service (other than limited
charter and commuter flights) to Love Field, except in
accordance with remaining provisions of the
Amendment. Subsection (b) prohibits interstate
scheduled service at Love Field, except in accordance
with other provisions of the Amendment, or if such
service was operated before November 1979. This
section assured that Southwest could continue to
operate Love Field service the CAB had previously
authorized. Subsection (c) defines the scope of
permissible service as follows:
(c) Subsections (a) and (b) shall not apply
with respect to, and it is found consistent with
2
the public convenience and necessity to
authorize, transportation of individuals, by air,
on a flight between Love Field, Texas, and one
or more points within the States of Louisiana,
Arkansas, Oklahoma, New Mexico, and Texas
by an air carrier, if (1) such air carrier does not
offer or provide any through service or
ticketing with another air carrier or foreign air
carrier, and (2) such air carrier does not offer
for sale transportation to or from, and the flight
or aircraft does not serve, any point which is
outside any such state. Nothing in this
subsection shall be construed to give authority
not otherwise provided by law to the Secretary
of Transportation, the Civil Aeronautics Board,
any other officer or employee of the United
States, or any other person.
Continental does not plan on operating from Love
Field beyond the five-state area specified in (c), an
action which would be cleariy prohibited. Rather,
Continental plans to serve Love Field with flights to
Houston. Continental has interline agreements with
other carriers and provides interline service at its
Houston hub. Thus, in interpreting the Amendment,
we must interpret the interline prohibition contained
in (c)(1) to determine: whether the Amendment
should be construed to prohibit a carrier that
interlines elsewhere on its system from serving Love
Field, or whether it should be construed merely to
prohibit interlining in connection with service at Love
Field.
The Dallas—Ft. Worth Parties and Southwest
argue that the Amendment prohibits service at Love
Field by carriers that interline anywhere on their
systems, even if no interline service is provided on
flights serving Love Field. The Justice Department
disagrees, arguing that Congress’ intent in enacting
the Amendment was to prohibit interlining only in
connection with Love Field service. Justice notes that
this view is consistent with prior CAB interpretations
of section (c)(1).
The CAB’s most detailed interpretation of the
interline prohibition occurred in connection with an
airport notice filed in 1980 by Texas International
Airlines (TI) to inaugurate interstate service from
Love Field. The airport notice was opposed by
Southwest and the DFW Parties on the grounds that
the Amendment prohibited Love Field service by
interlining carriers, such as TI, even if the carrier did
not provide interline service from Love.t| The CAB
disagreed and permitted TI to institute the proposed
interstate service, interpreting the Amendment as
restricting interlining on flights serving Love Field,
rather than as a total prohibition on serving Love
Field by carriers that interline elsewhere on their
systems. Order 80-8-181 (August 29, 1980).° The DFW
3 Tl was subsequently merged into Continental after its
parent, Texas Air Corporation, acquired Continental.
4 Unlike TI, Southwest, which had previously been authorized
by the CAB to provide service at Love, did not interline with
other carriers elsewhere on its system. Order 79-9-192
(September 29,1979).
5 In addition, the CAB found that the Amendment's
restrictions, while statutory and clearly applicable without
Parties sought judicial review of that order City of
Dallas v. CAB, Case Nos. 80-2064 and 81-1192 (D.C. Cir.
1980). The issue, however, was never resolved,
because TI discontinued its Love Field service during
the course of the appeal; and the case was dismissed
as moot.
Continental’s proposed service at Love Field is
similar to the earlier service of Tl approved by the
CAB. The issues and positions of interested parties
remain much the same as in TI’s 1980 application.
After careful review of comments, the plain words of
the Amendment, and its legislative history, we have
determined that the CAB properly interpreted
subsection (c)(1) as only prohibiting interlining on
flights serving Love Field. Thus, we find the
Amendment does not prevent Continental from
providing service between Love Field and Houston.
OPERATIONS BY AN AIR CARRIER
WITH INTERLINE SERVICE
The Department interprets the Amendment as not
prohibiting non-interline service at Love Field by an
air carrier that provides interline service elsewhere
on its system. The DFW Parties, Southwest, and
Republic, who do not agree with this interpretation,
contend that we should first look to the plain wording
of the Amendment to ascertain Congressional intent,
further regulatory action, should be embodied in certificates
authorizing such service, as intended by Congress (Conference
Report at 25). Order at 6.
unless the literal wording of the statute would lead to
‘unreasonable’ or ‘incongruous’ results. United States
v. American Trucking Ass'ns, 310 U.S. 534, 543 (1940).
We do not disagree.
In examining the wording of the Amendment, it is
clear that the critical part of subsection (c) is one
sentence regarding service by ‘an air carrier’ ‘on a
flight between Love Field, Texas,’ and points in Texas
and the adjacent four states. Subclause (1) prohibits
‘such air carrier’ from offering or providing through
service or ticketing with other carriers; and subclause
(2) prohibits the carrier from offering for sale
transportation to a point outside the authorized area,
and serving such a point on a flight that also serves
Love Field. In our view, the plain and literal meaning
of subsection (c) refers to a specific ‘flight,’ and
subclauses (1) and (2), which must logically be read
together (the clauses are joined by the conjunction
‘and’), describe restrictions applicable to the flight.
As further discussed below, the legislative history is
not contrary to this plain reading; and this reading is
not unreasonable. See, Nat'l Small Shipments Traffic
Conference v. CAB, 618 F.2d 819 (D.C. Cir. 1980).
The DFW Parties and Southwest offer a
significantly different reading of the literal words of
subsection (c). Their proffered meaning rests on the
assumption that subclauses (1) and (2) must be read
separately. Under this interpretation, subclause (1)
describes a class restriction, prohibiting any carrier
that interlines elsewhere on its system from serving
Love Field; while subclause (2) describes an
operational restriction, prohibiting this class of
carrier from serving Love Field beyond Texas and the
47a
four-state area. Thus, the DFW Parties and Southwest
contend that subsection (c)(1) is clear in its terms: a
carrier that conducts any interlining operations is
precluded from offering interstate service at Love.
Moreover, under this interpretation, any conflict
between subclauses (1) and (2) is illusory; since the
DFW Parties and Southwest argue that it is logical to
apply subsection (c)(1) universally, while applying
(c)(2) only in connection with operations at Love
Field.
The Board rejected this reading of subsection (c)
as unreasonable, finding that provisions of the
Amendment must be read in harmony. Order
80-8-181, at 4 (August 29, 1980). As the CAB stated, to
agree with this interpretation of (c)(1) would require
a reading of (c)(2) prohibiting an air carrier providing
service at Love from providing any service outside
Texas and the four adjacent states, even operat‘ons
unconnected with Love Field service. /d.® This
interpretation would be_ inconsistent with the
statements of the Conference Committee that carriers
providing interstate service at Love were not
precluded from operating outside the five-state area,
as long as through or connecting services to points
outside the area were not offered in connection with
the carriers’ Love Field service. Conference Report at
25-26. It is also inconsistent with the remainder of
subsection (c) and the rest of the Amendment, which
envisions and regulates interstate service at Love
Field. Further, the Conference Report specifically
6 While this outcome might be acceptable to the DFW Parties,
Southwest would probably object.
48a
states that carriers’ usual ticketing, scheduling, and
ratemaking practices would not be otherwise affected.
Id. To read the subclauses separately effectively
undercuts the Amendment, suggesting that Congress
enacted a self-defeating statute. As the CAB found,
Congress intended that carriers providing interline
services elsewhere on their systems could provide
service at Love Field, as long as they did not provide
interline service to points outside the five-state area
in connection with their Love Field services. Order
80-8-81 at 5. We agree.
Moreover, our plain reading of the Amendment is
supported by a customary understanding of English
grammar. To support their interpretation, the DFW
Parties and Southwest would have us change the
conjunction between the subclauses from ‘and’ to ’or,’
in order to read the clauses separately. However, the
clauses are joined together in one sentence as
connected restrictions on permitted interstate service
at Love Field and used as descriptive modifiers of the
term ‘flight.’ A contrary reading is grammatically
strained and leads to unreasonable and incongruous
resuits, as noted above.
Nor can we accept the arguments of the DFW
Parties and Southwest that the CAB improperly
modified the language of the Amendment by somehow
reading into subclause (1) the words ’on a flight’ that
precede that subclause. Interestingly, in urging their
own interpretation, the DFW Parties and Southwest
engage in the same type of error they accuse the
Board of having made. Strained modification of
language is not necessary to understand the plain
meaning of subsection (c); subclauses (1) and (2)
49a
must be read together in the context of the entire
sentence in which they appear.
All commenters, as well as this Department,
believe the Amendment’s legislative history supports
their reading of the plain meaning of the provision.
As discussed more fully below, we find that the
legislative history, when reviewed as a_ whole,
supports our interpretation of the Amendment. This
finding is consistent with the views of Continental
Airlines, America West, and the Department of
Justice.
The DFW Parties and Southwest contend that the
legislative history embodied in the Conference
Committee Report supports their position that
Congress intended to preclude from Love Field
service carriers conducting any interlining elsewhere
on their systems, citing the Conference Report at 24.
These parties discount colloquy and statements on
the floor of the House and Senate by members of the
Conference Committee and floor managers of the
legislation indicating that the Committee intended the
interlining restrictions to apply only to Love Field
service. They further suggest that the Amendment
should be considered in the context of ‘broader’
history, noting that the provision of the 1978 Airline
Deregulation Act defining services at satellite airports
as an element of the public interest was amended to
provide that this should be the cae only where
regional airport authorities and plan. supported the
use of such satellite airports. They point out that
Congressman James Wright assumed this amendment
of the Deregulation Act would prohibit the CAB from
authorizing interstate service at Love Field. When the
Board subsequently authorized Love Field service,
Congressman Wright introduced an amendment to
the IATCA of 1979 that would have _ prohibited
interstate service at Love. The House adopted this
amendment, but the Senate version of IATCA included
no comparable provision. While the DFW Parties and
Southwest do not dispute that the current version of
the Love Field Amendment was a compromise agreed
to in conference, they nonetheless argue that
Congress intended this provision to be very
restrictive.
In our view, the legislative history, properly read,
supports a less restrictive interpretation of the
interline provision. The Conference Report begins by
stating: ‘Section 29 as approved by the conferees
embodies a compromise which permits limited
commercial passenger’ service’ in __ interstate
transportation at Love Field.’ Conference Report at
24. In addition, Congress clearly knew the extent of
interlining practices among air carriers, since the
Airline Deregulation Act and IATCA itself (specifically
sections 11, 14 and 15) contain provisions involving
agreements and fares;’ and the Report is clear that
usual ticketing, scheduling, and ratemaking practices
7 The DFW Parties and Southwest assert that the Amendment
takes precedence over, and need not be harmonized with, [ATCA
and the earlier Deregulation Act. Even if this is so, it is not
reasonable to assume that Congress would have adopted the
Amendment with the purpose of granting a carrier (Southwest) a
de facto monopoly position at Love Field after having enacted
prior legislation with the primary purpose of placing greater
reliance on competitive and market forces to protect the public
interest.
5la
would not be otherwise affected, beyond the specific
Love Field restrictions. Conference Report at 26.
The Conference Report continues: ‘Subsection c
permits turnarous service between Love Field and
points in the four contiguous states.’ The turnaround
nature of the authorized flights is repeated in the next
paragraph. The DFW Parties’ and Southwest's
analysis of legislative history focuses almost entirely
on the following paragraph. While those parties
contend that that paragraph indicates that carriers
who interline anywhere on their systems are barred
from serving Love Field, the paragraph, in fact, is
merely a repetition of the words of the Love Field
Amendment. The Conference Committee more fully
explained the meaning of that language in the next
paragraph—an explanatory paragraph the DFW
Parties and Southwest have apparently ignored. That
paragraph begins: ‘Thus, a carrier providing service
from Love Field to a point in one of these states is not
forbidden from providing service from that point to
other points in other states beyond ....’ The
Conference Report continues: ‘While it could not sell
through tickets . . . between Love Field and points
beyond the contiguous states, its usual ticketing,
scheduling and ratemaking practices would not be
otherwise affected.’ Since Congress knew that these
enumerated practices constituted interlining, it is not
reasonable to argue that Congress intended to bar air
carriers who interline elsewhere on their systems
from serving Love Field.
The legislative history supports our view that
Congress intended to make Love Field a short-haul
airport limited to turnaround intrastate and interstate
service in five states. As a result, subclauses (1) and
(2) are not properly read as class and operational
restrictions, respectively. Rather, these subclauses
simply specify interline and on-line restrictions
applicable to service at Love Field.
Moreover, statements of Congressman Anderson
of California and Senator Cannon of Nevada also
support this interpretation of the Amendment. Each
was a member of the Conference Committee, and each
was the floor manager of the bill reported out of the
Conference Committee. The views of Conference
Committee members and floor managers are entitled
to greater weight than that usually afforded the views
of individual legislators, especially where such
expressed views are consistent with other elements of
the legislative history. Train v. Colorado Public
Interest Group, 426 U.S. 1, 14 (1976). The DFW Parties
and Southwest rely on the statements of Congressman
Wright in support of the House version of the bill,
rather than those of Congressman Anderson and
Senator Cannon in support of the Committee version;
however, Congressman Wright was not a member of
the Conference Committee, the bill reported by that
Committee was not the House version he had
sponsored, and both the House and Senate accepted
the compromise provision reported out by the
Conference Committee.
On the floor of the House, Congressman Anderson,
explaining the Amendment, said: ‘The prohibition in
section 29(c)(1), against an air carrier providing
through service or ticketing with another air carrier . .
. only applies with respect to a carrier’s Love Field
service ....’ 126 Cong. Rec. H. 520 (February 4, 1980).
53a
In a colloquy on the Senate floor, Senator Cannon
expressed the same understanding. 126 Cong. Rec. S.
952 (February 5, 1980). The legislative history, taken
as a whole, supports our view that the intent of
Congress in the Love Field Amendment was to limit
interstate service at that airport to short-haul,
turnaround flights, not to prohibit carriers offering
interline services elsewhere from serving Love Field.
The floor debates likewise indicate that operations
not touching Love Field were not to be included
within the prohibitions of the Amendment.
In sum, the Department believes that the plain
wording of the Amendment and the legislative history,
including the Conference Report and_ relevant
statements by the Amendment’s floor managers, show
that our less restrictive interpretation of the
Amendment is correct. Thus, we find that Continental
may serve Houston from Love Field, although the
carrier provides interline services elsewhere on its
system. This conclusion is supported by the
comments of various parties, including the Justice
Department, American West, and Air Midwest. The
arguments of the DFW parties and Southwest to the
contrary are not persuasive. Further, since we find
that Continental may serve Love Field consistent with
restrictions of the Amendment, we have determined
that it is not necessary to address Continental’s
additional argument that the amendment may violate
the equal protection clause.
Finally, Republic argues that permitting
Continental to serve Love Field is unfair in a
competitive sense, since our interpretation of the
Amendment benefits those carriers who maintain
hubs in Texas and the four contiguous states to the
exclusion of those who do not. Republic’s argument
is not convincing. Republic is free to establish its
hubs wherever it chooses. There is nothing
competitively unfair to Republic in our interpretation
of the Love Field Amendment as drafted and intended
by Congress.
MARKETING RESTRICTIONS
Continental raised four questions in its comments
regarding marketing problems faced by carriers
serving Love Field. The statements attached to its
comments are a vivid demonstration of the confusion
present today in Love Field service. Continental first
asks: 1) whether a passenger may buy two tickets
(so-called ‘double ticketing’) at Love Field, one for
service from Love Fieid to a point within Texas or the
four adjacent states, and a separate, second ticket for
service from that destination to a beyond point; and
2) whether the second ticket may be for the carrier’s
most efficient connecting flight. The answer to both
questions is yes. To hold otherwise would be
unreasonable and beyond that needed to effectuate
the Amendment's restrictions. See, CAB Order
80-12-102 (December 18, 1980).
The language of the Amendment and its legislative
history indicate that Congress had two concerns in
restricting service to Love Field. First, Congress
intended to prohibit carriers from providing through
service and ticketing beyond the authorized Love
Field service area. Conference Report at 25.
However, Congress did not intend to preclude a
55a
carrier from operating flights from a destination point
served from Love Field to a point outside the Love
Field service area. /d. at 26. Second, Congress
intended to prohibit carriers from promoting,
offering, or holding out service from Love Field to a
point beyond the service area. Subsection (c).
Conference Report at 25. Congress used the word
‘offer’ in the Amendment itself; although the
legislative history refers to ‘holding out.’ In some
contexts, the terms 'offer’ and ‘hold out’ can be used
interchangeably. United States v. Contract Steel
Carriers, 350 U.S. 409 (1956); Cf Grajewski vu.
Commissioner, 723 F2d 1062, (2d Cir. 1983).
"Through service’ and ticketing specifically refer to
the provision of transportation between an ultimate
origin and destination on a single ticket for a single
sum fare. Cf Tariff Flexibility Rulemaking ER-1246,
Order 81-81- 58 (November 10, 1981). See also, Visit
USA/Export/Inland Contract Rate Investigation (VUSA
Investigation), Order 84-8-55 at 26 (August 10, 1984).
The service may be offered on a single flight with one
or more stops, or it may be offered on connections
between two flights. The key concept is that it is sold
by the carrier, and perceived by the passenger, as a
single trip on a single ticket for a single sum fare, thus
constituting a single contract.’ Through service
8 In the case of connecting flight service, the amount of the
fare may be calculated by simply adding the local fares on
individual flight segments, or it may be a different, usually lower,
fare reflecting costs or competitive considerations. The key
concept, again, is that the fare is stated as a single amount. Cf
VUSA Investigation, Order 84-8-55 at 27.
56a
provides certain conveniences for the passengers.
For example, the passenger need not reclaim checked
baggage upon arrival at the connecting point and
recheck it on the next flight on his or her itinerary.
In contrast, double ticketing involves the use of
two tickets (hence, two contracts of carriage), the
payment of two separate fares, and requires the
passenger io forego the service conveniences
associated with through ticketing. Although Congress
prohibited through service and fares at Love Field, it
intended that a carrier's 'usual ticketing, scheduling
and ratemaking practices would not be otherwise
affected.’ Conference Report at 26. Such ‘other’
practices may include double ticketing. Cf /nterstate
and Intrastate Fares in California Markets, 71 CAB 23
(1976).
The language of the Amendment makes clear that
a carrier cannot advertise, promote, or otherwise
affirmatively solicit double-ticketing passengers. The
question, then, is whether the sale of double-ticketed
service at the unsolicited request of a customer
amounts to an offer or holding out. Such a sale is not
necessarily an offer. An offer is a proposal to sell a
ticket or provide transportation. Frissell v. Nichols, 94
Fla. 403, 114 So. 431, 433 (1927); Cf Daitom, Inc. v.
Pennwalt Corporation 741 F2d 1569 (10th Cir. 1984). If
a carrier simply responds to a customer’s unsolicited
request, it has not proposed to sell air transportation,
but, rather, has accepted a proposal to buy such
transportation from the customer, although the
carrier's acceptance results in a contract. Congress
prohibited carriers from ‘offering for sale
transportation to or from ... any point which is
57a
outside [the Love Field Service area]’; but neither the
wording nor the legislative history prohibits carriers
from selling, or passengers from _ purchasing,
transportation to points outside the Love Field
service area. While the Amendment prohibits
single-plane flights, interline service, through service
and ticketing, and advertising and promotion of
service outside the Love Field service area, it does not
appear that Congress intended to preclude entirely
the use of Love Field by passengers who take the
effort to find out that doubie-ticketed service is
available, who demand such tickets, and who accept
the inconvenience of that service. Thus, to prohibit
double ticketing or the sale of a carrier’s most
convenient flight from a destination in the Love Field
authorized service area to a beyond point exceeds
what is necessary to prohibit through service and
ticketing from Love Field.
Continental’s second question, also asked by
Delta, is whether a carrier may display in a computer
reservations system under connections’ service from
Love Field to a point beyond the restricted service
area. The answer is no. The Conference Report is
clear on this question. It says that ‘carriers may not
hold out, offer or advertise Love Field service to or
from points beyond the four contiguous states in any
respect, including the publication of connecting
flights schedules in airline guides, flight schedules, or
similar media.’ Conference Report at 25. The ban on
advertising of service from Love Field beyond Texas
and the four contiguous states is clearly envisioned
by the Amendment. The phrase ‘airline guides, flight
schedules, or similar media’ includes computer
reservations systems. These systems were used at
58a
the time of the Amendment’s passage and not
specifically excluded.
Continental's third, related marketing question is
whether a carrier may advertise connecting service
and display connecting service, as such, in its flight
schedules. Again, the answer is no. Unsolicited
information furnished to the public in any form is a
means of offering or holding out, which is prohibited.
See, e.g, Red Ball Transit Co. v. Marshall 8 F.2d 321,
323 (S.D. Ohio 1925). Moreover, as discussed above,
Congress clearly contemplated prohibiting
publication of such flights in individual carrier
schedules, as well as industry information media.
Continental’s fourth question concerns the
marketing of fares and their construction. Continental
asks whether a fare could be sold and constructed for
service from Love Field to a point outside the
restricted service area that is different from the sum
of the local fares (Love Field to a point in the
authorized area, plus that point to a point outside the
service fare.) This practice would clearly involve the
offer of a through fare, since it could not be
considered as anything but a single sum fare.
Moreover, it could not be offered as anything but a
single contract of carriage, i.e., a single through ticket.
This is different from the double-ticketing situation,
discussed above, which involves two separate
contracts of carriage. The Conference Committee
Report states that’... a carrier could not... offer
through fares between Love Field and points beyond
the contiguous States .. .. Conference Report at 26.
Therefore, a carrier cannot offer a constructed fare
59a
for double-ticketed service originating or terminating
at Love Field.
Throughout this discussion of marketing, we have
used the term ‘carrier’ to include travel agents or
other persons or methods used by the carrier to sell
its tickets and services. Whenever an agent is acting
for its principal, the same restrictions applied to the
principal apply to the agent.
SMALL AIRCRAFT OPERATIONS
In connection with its computer reservations
sysiem, Delta asks whether a certificated carrier using
small aircraft should be treated the same as a
commuter carrier serving Love Field. The
Amendment specifically authorizes interstate air
transportation at Love by commuter airlines using
aircraft of 56 seats or less. The term ‘commuter
airline’ is not defined elsewhere in the Amendment.
The Amendment’s language must, therefore, stand on
its own. Since Congress specified the size of the
commuter aircraft, and since such aircraft has a
limited range consistent with other restrictions of the
Amendment, we believe Congress intended aircraft
size, rather than license classification of the carrier,
to be determinative.? Thus, we find that operations
by either a certificated or non-certificated carrier
using small aircraft are exempt from the Amendment
with respect to Love Field operations.
9 The Department has taken this approach to all aspects of
economic regulation of commuter air carriers. 14 C.F.R. 298.90.
60a
INTRASTATE OPERATIONS
We also asked for comments on whether the
Amendment applies to intrastate service within
Texas. The Amendment is somewhat ambiguous on
this question. Subsections (a) and (b), by their terms,
apply only to flights from Love Field to ‘points outside
the State of Texas.’ Subsection (c), however, states
that subsections (a) and (b) do not apply to, and
under certain conditions carriers may provide, flights
between Love Field and points within the State(s) of .
. . Texas.’ The Conference Report states that the
‘provisions do not affect . . . intrastate service in
Texas.’ Conference Report at 25. Thus, we conclude
that the Amendmeiit does not apply to service by an
intrastate carrier or to service carrying only intrastate
passengers by an air carrier.
The more difficult issue, however, is the
application of the Amendment to air carriers
providing both intrastate and interstate service on the
same flight. The CAB faced this question in Order
80-8-181. It decided that carriers could not evade the
Amendment’s restrictions by providing flights, for
example, between Love Field and Houston and then
continuing the flights between Houston and points
outside the five-state area. The Department believes
the CAB was substantially correct. In our view, an air
carrier providing interstate service within the
authorized four-state service area mays provide
intrastate service from Love Field on the same flight
without violating the Amendment’s restrictions.
However, the carrier cannot offer, promote, or sell
through service and fares or tickets between Love
6la
Field and points outside the authorized service area
using another Texas city as the connecting point.
ACCORDINGLY,
1. Continental or its agents may provide service
from Love Field, Dallas, Texas, to Houston, Texas;
2. Continental or its agents may sell a ticket from-
an authorized destination of a flight from Love Field to
a point beyond that destination, if demanded by a
passenger, separately from the ticket for the Love
Field flight, provided the amount of the tickets equals
the sum of local fares;
3. Continental or its agents may not by any means
whatsoever list of advertise ‘connecting’ flights for an
authorized Love Field flight to a point beyond the
Love Field service area, including listings in a
computer reservation system;
4. Delta may list in its computer reservation
system service by certificated air carriers that use
aircraft of 56 seats or less serving Love Field in a
manner similar to listings for commuter air carriers;
and
5. The Amendment does not apply to service by
intrastate carriers or intrastate service by an air
carrier certificated under the Act.
By:
Matthew V. Scocozza
Assistant Secretary for Policy
and International Affairs
62a
APPENDIX D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
~No. CA-3-1029-G
BUDDY CRAMER, Plaintiff
V.
SAMUEL K. SKINNER, Secretary of Transportation, et
al., Defendants.
[APRIL 11, 1990]
|Before A. Joe Fish, District Judge. |
MEMORANDUM ORDER
This case involves a_ challenge to the
constitutionality of section 29 of the International Air
Transportation Competition Act of 1979, P.L. 96-192,
94 Stat. 35, 4849 (1980) (the “Love Field
Amendment”). It is before the court on cross-motions
for summary judgment brought by plaintiff, Buddy
Cramer (“Cramer”) and the defendants (“United
States”). For the following reasons, the United States’
motion is granted and Cramer’s motion is denied.
63a
I. Background
Originally, two commercial airports operated in
the Dallas-Fort Worth Area: one was located in Fort
Worth, the other at Love Field in Dallas. After much
rivalry between the two cities over which should be
the primary airport, it was agreed that a new airport
(“DFW”) would be built to serve both cities. The eight
certificated airlines! then operating in Dallas and Fort
Worth consented to move their operations to DFW.
When DFW opened in 1974, the certificated airlines
fulfilled their promise to move to DFW. Southwest
Airlines (“Southwest”) however, opted to remain at
Love Field and to continue its intrastate operations
there. Dallas, Fort Worth, and the operator of DFW
unsuccessfully attempted to exclude Southwest from
Love Field. See City of Dallas, Texas v. Southwest
Airlines Company, 371 F. Supp. 1015, 1019-20 (N.D.
Tex. 1973), aff'd, 494 F.2d 773 (5th Cir.), cert. denied,
419 U.S. 1079 (1974).
After deregulation of the airline industry in 1978,
Southwest applied for and received authorization
from the Civil Aeronautics Board to establish a route
from Love Field to New Orleans. In 1980, Congress
enacted the _ International Air Transportation
Competition Act of 1979, P.-L. 96-192, 94 Stat. 35, 48-49
(1980). Section 29 of that act, the Love Field
Amendment, restricts interstate airline service with
1 At that time, airlines providing interstate transportation on
large aircraft were required to obtain a certificate from the Civil
Aeronautics Board. °
64a
large aircraft to points outside Texas, New Mexico,
Oklahoma, Arkansas and Louisiana.
On April 21, 1989, Cramer filed his complaint in
this suit seeking declaratory and equitable relief. He
asserts in that complaint that the Love Field
Amendment is an _ unconstitutional burden and
restraint on his right to travel interstate. On April 28,
1989, Cramer filed a first amended complaint
additional allegations that the First Amendment and
the Port Preference Clause. (Art. I, § 9, cl. 6) of the
United States Constitution had been violated.
Cramer’s second amended complaint, filed July 10,
1989, contained more detailed allegations but no new
claims for relief.
On June 20, 1989, the United States filed its motion
for dismissal, or in the alternative, for summary
judgment. It contends that Cramer has no standing to
challenge the Love Field Amendment, and that even if
he did, the Love Field Amendment imposes only
minimal restrictions on his right to travel. Cramer
urges in a cross-motion for summary judgment that
the Love Field Amendment is unconstitutional.
II. Analysis
A. Standing: Injury
This court is limited by Article III of the United
States Constitution to the resolution of “cases” and
“controversies.” Valley Forge Christian College v.
Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 471 (1982). As a result, of this
limitation, the Supreme Court has always required
that a plaintiff have “standing” to challenge the
validity of the action at issue. /d.
65a
The requirements for standing are three-fold.
First, a litigant must have “personally ... suffered some
actual or threatened injury as a result of the
putatively illegal conduct of the defendant.” [d. at
472 (quoting Gladstone, Realtors v. VillaZ@é of
Bellwood, 441 U.S. 91, 99 (1979)). Second t must be
traceable to the challenged action. Third, the must be
“likely to be redressed by a favorable decision
(quoting Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 38 (1976)).
Cramer identifies injury to himself from two
separate sources. First, he alleges that he has
suffered economic harm? and inconvenience because
of the restrictions placed on Love Field by the Love
Field Amendment. Second, Cramer contends that he
has been denied complete information on interstate
travel by the Love Field Amendment’s ban on
advertising by travel agents. The United States does
not dispute these contentions.
As to Cramer’s claim that he is unable to obtain
complete information from travel agents regarding
interstate travel, the court is unpersuaded that
Cramer has suffered the type of injury that would give
him standing. Travel agents may give information
regarding flights from Love Field upon request;
however, they may not volunteer such information.
2 Cramer attributes this economic harm to the higher cost of
transportation from his home to DFW as opposed to Love Field
and to the unavailability of through fares, which he asserts would
be less expensive that double tickets. See Cramer's
memorandum of points and authorities in opposition to dismissal
at 23.
66a
Since Cramer knows that he is entitled to such
information on request, he is not being denied any
information he would receive if the Love Field
Amendment were declared unconstitutional. Cramer
cannot challenge the validity of the Love Field
Amendment because it impairs the rights of other
who do not know that they must request such
information. Cramer has, however, shown economic
injury to himself from the restrictions placed on his
travel.
B. Standing: Redressability
The United States’ sole contention regarding
Cramer's standing is that the relief he seeks will not
redress his alleged injuries. It asserts that the only
way Cramer’s injuries can be redressed is if a third
party changes its conduct. Cramer, on the other
hand, contends that it is likely that a third party will
change its conduct if the Love Field Amendment is no
longer in effect. Cramer believes that Southwest, if
permitted to do so, will sell through tickets and
charge a single lower fare for connecting flights. He
also believes that another carrier, America West
Airlines (“America West”), will institute service at
Love Field, based on a letter from America West’s
general attorney stating that America West is
“seriously interested” in servicing Love Field.
In cases where the redressability of the plaintiff's
injury depends on a change in the conduct of a third
party, the Supreme Court has held that the plaintiff
3 See Cramer’s memorandum of points and authorities in
opposition to dismissal at 22, 23, 25.
67a
must show that such a change in conduct is likely.
Simon, above, 426 U.S. at 42-46; Allen v. Wright, 468
U.S. 737, 749, 758-59. See also Basiardanes v. City of
Galveston, 682 F.2d 1203, 1211-12 (Sth Cir. 1982).
Cramer has attempted to make such a showing in this
case, but the court finds it unconvincing. To find
redressability in this case would require a degree of
speculation unwarranted by Supreme _ Court
precedent. Cramer has attempted to predict, without
any firm basis, what Southwest would do in the
absence of the Love Field Amendment. He has also
provided the Letter from America West. He fails to
address, however, that part of the letter in which
America West’s general attorney points out that the
opening of a new station is a business decision
that must be based upon the complete analysis
of the needs of the marketplace and the
availability of personnel and equipment
necessary to provide such service as well as
facilities at Love Field.
Although America West pledges to undertake such an
analysis should the Love Field Amendment be
declared unconstitutional, the letter makes no other
commitment. In particular, it does not support the
proposition that a change in service at Love Field is
likely if this court grants the relief sought by Cramer.
Ill. Conclusion
Because the court has concluded, for the reasons
stated, that Cramer has no standing to challenge the
constitutionality of the Love Field Amendment, the
United States’ motion to dismiss or for summary
68a
judgment is granted, while Cramer’s motion for
summary judgment must be denied.
SO ORDERED.
April 11, 1990.
/s/ A. Joe Fish
A. JOE FISH
United States District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.