Petition for Writ of Certiorari — Williams v. American Airlines, Inc.

PRE a mrt

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See ‘isin HI

no. 75-1254 as

MAR 4

ri

In the

Supreme Court of the United States

OCTOBER TERM, 1975

MICHAEL W. WILLIAMS and

ROBERT O. WILLIAMS, on behalf

of themselves and all others

similarly situated,

Petitioners

AMERICAN AIRLINES, INC. and

TRANS WORLD AIRLINES, INC.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MICHAEL W. WILLIAMS

518 S. Tancahua

Corpus Christi, Texas 78401

(512) 884-0473

Attorney for Petitioners

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TABLE OF CONTENTS

Page

OPINIONS BELOW |

JURISDICTION 2

QUESTIONS PRESENTED 2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED 3

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT 5

The Court of Appeals for the Seventh

Circuit has, in effect, decided a

Federal question in a way in conflict

with applicable decisions of this

court 5

The Court of Appeals has so far de-

parted from the accepted and usual

course of judicial proceedings in

allowing an administrative finding

to effectively moot Plaintiff's

statutorily preserved common law

action before the courts, as to call

for an exercise of the Supreme Court's

supervision 8

CONCLUSION |

CERTIFICATE OF SERVICE 12

APPENDIX A 13

ach SEATON RRMA SEE NN STAN EF be.

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TABLE OF CASES AND OTHER AUTHORITIES CITED

Cases Page

Atlantic Coast Line v. Florida,

295 U.S. 301 (1935) 7

ICC v. Louisville & Nashville Ry. Co.,

227 U.S. 88, 91 6

Moss v. C.A.B., 420 F.2d 891 (1970) 4.3,"

Moss v. C.A.B., 521 F.2d 298 6

Pacific States Box and Basket Co. v. White,

296 U.S. 176 7

Storer Broadcasting v. U.S.,

220 F.2d 204 6

United Gas Pipe Line Co. v. Mobile Gas

Service Corp., et al, 350 U.S. 332 6

Statutes

49 U.S.C. 1343(d) and (e) 3,4

49 U.S.C. 1506 3

EERE NTN ET PI OTE, ESN ER MIL EI IE ON EN OE LE bes sae nlailiatiaiitias

, BLEED THROUGH

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO.

MICHAEL W. WILLIAMS and

ROBERT 0. WILLIAMS, on behalf

of themselves and all others

similarly situated,

Petitioners

AMERICAN AIRLINES, INC. and

TRANS WORLD AIRLINES, INC.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MICHAEL W. WILLIAMS and ROBERT 0. WILLIAMS, on

behalf of themselves and all others similarly

situated, Petitioners, pray to this Honorable Court

that a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals for

the Seventh Circuit which was final in this case

on December 8, 1975.

OPINIONS BELOW

There is no pub!ished opinion by the United

States District Court, Northern District of

Illinois, Eastern Division. Petitioners received

a copy of a docket sheet dated December 10, 1973,

with the following notation written on it: "On

Court's own motion order cause dismissed with pre-

judice and without costs on the ground that cause

is moot.'' Judge Hubert L. Will was the presiding

judge.

The Court of Appeals, on December 8, 1975,

handed down an opinion, not ye. ~#ported, affirm-

ing the trial court's judgment. That opinion is

attached hereto as Appendix A.

JURISDICTION

The judgment of the Court of Appeals became

final on December 9, 1975. Federal jurisdiction

was origina'ly invoked under 28 U.S.C. 1337 and

the Federal Aviation Act of 1958, 49 U.S.C. 1301,

et seq.

QUESTIONS PRESENTED

This case presents the issue of whether an

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admitted and adjudged violation of federal law re-

quiring notice and hearing preliminary to a Board

established rate order, renders the resulting order

void or merely voidable.

Also presented is the question of whether an

administrative determination of reasonableness of

fares can moot or effectively moot a question of

law presented to a court by litigants in an inde-

pendent common law action preserved to them by

federa! statute.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Questions are raised in regard to the constitu-

tional requirement of Procedural Due Process.

Amendment 5, United States Constitution.

49 U.S.C. 1343(d) and (e) and 49 U.S.C. 1506,

provisions of the Federal Aviation Act, also form

a basis for this litigation.

STATEMENT OF THE CASE

The record in this case consists of the record

on appeal and a transcript of proceedings. The

ate

i Nia eit State DA EALERTS I

record and transcript are now on file with the

Clerk of the United States Court of Appeals for

the Seventh Circuit.

From October 1, 1969 to October 15, 1970, the

air carriers were collecting fares from the air-

travelling public, including petitioners, pursuant

to an order of the Civil Aeronautics Board, held

to be unlawful in Moss v. C.A.B., 430 F.2d 891

(1970). Statutory requirements of notice and

hearing set out in 49 U.S.C. 1343 (d) and (e) were

admittedly not complied with. On July 21, 1970,

Petitioners filed a complaint in the United States

District Court for the District of Columbia for

recovery of Money Had and Received against two air

carriers to recover monies paid in excess of the

valid existing rate. The complaint was brought as

a class action. On August 11, 1970, Petitioners

moved for a summary judgment against the air

carriers on the issue of liability.

Petitioners' cause was subsequently consoli-

dated with other similar actions in the United

States District Court, Northern District of

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lllinois, Eastern Division by the Judicial Panel

on Multidistrict Litigation.

Motions relating to the class action aspects of

the case were filed in that court by plaintiffs in

the consolidated action but were not ruled upon by

the court.

On December 10, 1973, the court dismissed

Petitioners' case with prejudice on the grounds

that the cause is moot. There were numerous

‘reports on status'' and ''status calls'' in the trial

court. A trial, however was never held and no

ruling on Petitioners', nor on the air carriers’,

motions for summary judgment were made by the

trial court.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT

HAS, IN EFFECT, DECIDED A FEDERAL QUESTION INA

WAY IN CONFLICT WITH APPLICABLE DECISIONS OF THIS

COURT.

In Moss v. C.A.B., 430 F.2d 891 (1970), there

was a holding that the CAB had determined rates

"within the meaning of Section 1002(d) and (e) of

te

the Federal Aviation Act, 49 U.S.C., sec. 1482 (d)

and (e) without complying with the requirements

of those sections that this be done after notice

and hearing.'' (As summarized in Moss II--Moss v.

C.A.8., 321 €.26 20, 309).

It has been specifically held that the denial

of a hearing granted by statute is a denial of due

process of law. The Supreme Court did not invali-

date that tenet in Storer Broadcasting v. U.S.,

220 F.2d 204, rev'd on other grds. 351 U.S. 192.

''In the comparatively few cases in which such

questions have arisen it has been distinctly recog-

nized that administrative orders, quasi-judicial

in nature are void if a hearing was denied."' ICC

v. Louisville & Nashville Ry. Co., 227 U.S. 88,

91.

In United Gas Pipe Line Co. v. Mobile Gas

Service Corp., et al, 350 U.S. 332, there was non-

compliance with notice requirements in section

4(d) of the Natural Gas Act. It resulted in the

new schedule calling for increased rates being

declared a nullity insofar as it purported to

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change the then existing lawful rate. (The

Supreme Court unanimously held that any amounts

paid in excess of the existing lawful rate were

unlawfully collected and the natural gas company

was obligated to make restitution of the excess

payments.) 350 U.S. 347.

Throughout this present litigation the carriers

and the Board have contended that the i!legal

rates were voidable and that questions of reason-

ableness and equity should be considered in an

action for restitution. The Court of Appeals so

held. (App.A. p.!7) They all rely almost totally

upon Atlantic Coast Line v. Florida, 295 U.S. 301

(1935), a case where there was an absence of

specific findings supporting an ICC order. Since

the requirement for sufficient findings has been

held by this Supreme Court to be not based on due

process in Pacific States Box and Basket Co. v.

White, 296 U.S. 176, Petitioners have always denied

Atlantic Coast Line's relevance to the present case.

The effect of the U.S. Court of Appeals' ruling

below is to hold that administrative orders issued

aSe

efter violation of statutory provision for proce-

dural due process are merely voidable and not void

and that violations of due process safeguards are

tantamount to mere slips or minor procedural

defects. Thankfully, there are few cases where

government agencies--with or without members of

their regulated industries--violate due process

by ignoring statutory requirements of notice and

hearing. When it has happened, resulting orders

have always been held void.

In that respect, the decision of the Court of

Appeals below is in conflict with every applicable

decision of the United States Supreme Court.

THE COURT OF APPEALS HAS SO FAR DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF JUDICIAL PRO-

CEEDINGS IN ALLOWING AN ADMINISTRATIVE FINDING TO

EFFECTIVELY MOOT PLAINTIFF'S STATUTORILY PRESERVED

COMMON LAW ACTION BEFORE THE COURTS, AS TO CALL

FOR AN EXERCISE OF THE SUPREME COURT'S SUPERVISION.

The trial court and the United States Court of

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Appeals for the Seventh Circuit erred in holding

that an administrative holding by the Civil

Aeronautics Board could moot or effectively moot

a question of law before the courts and deny

Petitioners the right to proceed with a common law

action (money had and received) preserved to them

by 49 U.S.C. 1506.

The ostensible purpose of the CAB hearing was

to determine the ''reasonableness vel non'' of the

air tariffs established by the adjudged invalid

order of October |, 1969. The Petitioners have

consistently pointed out the futility of those

proceedings since the Board is without power to

make restitution and since the Board acted with

the air carriers to violate the provisions of the

Federal Aviation Act calling for notice and hear-

ing. (Moss v. C.A.B., 430 F.2d 891 (1970), at

pp. 893-5).

This entire case turns upon one question of law.

lt was presented for review by the Court of Appeals

thusly: ‘Whether an admitted and adjudged non-

compliance with the notice and hearing requirements

“=

of the Federal Aviation Act rendered a resulting

invalid administrative order void or merely

voidable."

The CAB is powerless to decide this type of pure

question of law except, perhaps, by implication

\f the order is void, all findings related to

reasonableness and equity are meaningless. If it

is voidable, such findings would be controlling.

No court, administrative board, nor mortal, can

breathe life into something that is void.

The Petitioners have a constitutionally pro-

tected right not to have their cause of action

taken from them by a narrow administrative ad-

judication to which they were not a party, which

may be irrelevant, and which did not and could

not treat the question of law they raised before

courts of competent jurisdiction.

CONCLUSION

The record below is one of possible irrelevance,

confusion and incompleteness. The end result,

however, is a Court of Appeals holding which can

have a major, if not revolutionary, impact upon

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certain areas of constitutional and administrative

law. If, all at once, procedural due process

violations are to be treated as mere procedura'

defects, the Supreme Court should speak to that

point. If, all at once, administrative agencies

can reach out and ''moot'' pure questions of law

before the courts in independent common law ac-

tions, the Supreme Court should speak to that

point also.

This case strongly calls out for oversight

and review by this Supreme Court.

For those reasons, Petitioners respectfully

submit that their petition for writ of

certiorari should be granted.

Respectfully submitted,

td th Manse

MICHAEL W. WILLIAMS

518 S. Tancahua

Corpus Christi, Texas

78401

(512) 884-0473

atte

CERTIFICATE OF SERVICE

| certify that three (3) copies of the fore-

going Petition for Certiorari were served on

each of the respondents by sending said copies air

mail, postage prepaid, to the following persons

and addresses:

Lee N. Abrams, Esq.

Mayer, Brown & Platt

231 South LaSalle Street

Chicago, Illinois 60604

Attorney for Trans World Airlines and

American Airlines,

bi a act iol

William M. Brinton, Esq.

F One Maritime Plaza

; San Francisco, California

z Attorney for Keith Roberts, et al.,

and Edward A. Berman, Esq.

134 North LaSalle Street

Chicago, Illinois

in conformity with Rules 21 and 33 of the United

States Supreme Court, this 3rd dgy of March, 1976.

W.whbhe.

MICHAEL W. WILLIAMS

518 S. Tancahua Street

Corpus Christi, Texas 78401

(512) 884-0473

ATTORNEY FOR PETITIONERS

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APPENDIX A

OPINION

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

NOS. 74-1108, 74-1146 and 74-1246

Keith Roberts, et al.,

Plaintiffs-Appellants,

Vv.

American Airlines, Inc., et al

Defendants-Appel lees.

Michael Williams, et al.,

Plaintiffs-Appellants,

Vv.

American Airlines, Inc., et al

Defendants-Appel lees.

Alan Weidberg, et al.,

Plaintiffs-Appellants,

Vv.

American Airlines, Inc., et al.,

Defendants-Appel lees.

Air Travelers Association, et al.,

Plaintiffs-Appellants,

Air West, Inc., et al.,

Defendants-Appel lees.

o¥%-

Appeals from the United States District Court for

the

Northern District of Illinois

Eastern Division

Hos. 71 C 7G3, 71 © 7¥t, 70 ¢C W739, 71 € aS

HUBERT L. WILL, JUDGE

Argued September 8, 1975

Decided December 8, 1975

Before CASTLE, Senior Circuit Judge, SWYGERT

and PELL, Circuit Judges.

PELL, Circuit Judge. These four appeals,

consolidated in this court for hearing and dis-

position, are brought by some of the plaintiffs

following an adverse judgment in the district

court.

In August, 1969, twenty of the principal

domestic air carriers filed tariffs which increased

domestic air passenger fares. On September !2,

1969, the Civil Aeronautics Board (CAB) suspended

these tariffs under 49 U.S.C. sec. 1482(g) (1964),

but announced that it would accept, without sus-

pension, tariffs which utilized a proposed fare

formula. The carriers then withdrew their sus-

pended tariffs and filed new tariffs in accordance

with the Board's proposed fare formula. The

carrier-filed tariffs were allowed to stand with-

out suspension or investigation.

Thirty-two interested Congressmen then peti-

tioned for review alleging that the CAB, by ex-

cluding the public from ex parte meetings with

representatives of the air carriers and by holding

a pro forma public hearing, had unlawfully approved

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the increased fare structure. In Moss v. CAB, 430

F.2d 891 (D.C. Cir. 1970), (Moss 1), the Court of

Appeals held that the September 12 order was in-

valid and the tariffs filed by the carriers based

thereon were unlawful. Subsequently, a number of

class actions were filed on behalf of all or a

portion of the passengers on domestic airlines who

paid the increased fares, seeking recovery of an

amount measured by the alleged illegal increase.

The Judicial Panel on Multidistrict Litigation

ordered that all of the class actions be trans-

ferred to the United States District Court for the

Northern District of Illinois for coordinated or

consolidated pretrial proceedings under 28 U.S.C.

sec. 1407. In re Air Fare Litigation, 322 F.Supp.

1013 (J.P.M.L. 1971). Following transfer, the

defendants moved to stay the proceedings pending

completion of a CAB investigation entitled

"'Reasonableness of Passenger Fares charged by

Domestic Trunkline and Local Service Carriers

from October 1, 1969, through October 12, 1970."

In Weidberg v. American Airlines, Inc., 336 F.Supp.

407 (N.D. I11. 1972), the court granted the stay

motion and ordered that all proceedings in the

litigation be held in abeyance until further order.

On June 1, 1972, this court denied a petition for

mandamus seeking to upset the stay order.

No further action, except routine status re-

ports, took place in the suits for approximately

eighteen months following this court's denial of

the mandamus petition. Meanwhile, the CAB com-

pleted its investigation of the reasonableness

of passenger fares and, on July 11, 1973, issued

Order No. 73-7-39. This order denied to air

passengers recovery of any part of the unlawful

fares on the grounds that the fares in question

were not unjust or unreasonable, and, in any case,

resulted in no unjust enrichment of the airlines.

After the publication of the CAB order, the dis-

trict court indicated, during the regular status

reports, that he was disposed to grant the defen-

dants' motion to dismiss. At a subsequent status

o$4..

call, the district court judge expressed his view

that the seven damage actions were moot. The

district court judge observed that absolutely

nothing was happening in the case and had not for

a year, and he suggested that he would dismiss

the cases, Subject to reinstatement should the

District of Columbia Court of Appeals reverse the

CAB finding of just and reasonable rates,

On December 20, 1973, the district court, on

its Own motion, dismissed the seven actions with

prejudice and without costs on the ground that the

causes were moot. Four of the civil actions which

were appealed are encompassed in these consolidated

appeals; the named plaintiffs in the other three

actions did not seek appellate review. The

appellants seek to reverse the judgment of dismis-

sal.

The procedural history of these cases is in-

extricably related to other administrative and

judicial proceedings. On July 16, 1973, Congress-

man John E. Moss and some twenty-four colleagues

petitioned for direct review of CAB Order No.

73-7-39. It was they who had instituted the CAB

proceedings which culminated in that order, just

as it was they (or a similar group) who secured

the Moss | ruling that invalidated the September

12, 1969, order. Keith Roberts, a named plaintiff

in one of the district court suits and appellant in

No. 74-1108, also filed a petition (No. 73-1790)

seeking review of the 1973 order.

He had successfully sought to intervene before

-the CAB in the proceedings which produced the

Board's final decision in Order No. 73-7-39, and

he was also allowed to intervene in the Moss re-

view petition (No. 73-1772).

At the time of oral argument of the present

appeals, there had been no decision in the related

review petitions. Subsequent to oral argument,

the D.C. Circuit in Moss v. CAB, 521 F.2d 298

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ma vw

(0.C. Cir. 1975), (Moss 11), affirmed the chal -

lenged order, That court faced the question as to

whether there was to be a recovery of any part of

the unlawful fares, and it concluded that the

decisional principles used by the CAB in denying

such relief were determunative and correctly

applied, Not only did the court expressly hold

that the petitioners (Moss and Roberts) had no

right to recover all amounts in excess of the last

lawfully established rates, but it also confronted,

and rejected, the alternative claim that recovery

of an amount measured by the difference between

the charged fares and ''reasonable'' fares was avail-

able to the Moss petitioners or to Roberts.

The question originally raised in these con-

solidated appeals was whether passengers are en-

titled to recover damages or secure restitution of

monies paid under illegal air passenger tariffs

which the Civil Aeronautics Board has found not to

be unjust or unreasonable. As originally argued,

our primary task was to explicate the precise legal

meaning of the Moss | holding that the September

12, 1969, CAB order was invalid and that the pas-

senger tariffs were illegal. 430 F.2d at 902.

The opposing parties found different meanings in

the opinion, and they directed argument to the

question whether the 1969 order was void or void-

able. We think that Moss || clearly and correctly

explicates the earlier decision and establishes

that the CAB order attached in Moss | was voidable

rather than void.

Accordingly, we need not undertake a lengthy

analysis of the substantive questions of law raised

in these appeals. However, Moss |! does not effec-

tively resolve all of the vexing questions raised

here, and we deem it necessary to address ourselves

to some of the remaining problems.

wife

1. Res Judicata and Mootness

A. Res Judicata

At the January 14, 1974, hearing on the motion

to reconsider the orders of dismissal, the district

judge focused directly on the impact on the present

cases of an affirmance of CAB Order No. 73-7-39;

THE COURT: * * *

"My logic is, in fact, the dismissal stands

because the District Court of Appeals, District

of Columbia affirms that the fares were reason-

able and fair, that that is res judicata, and

it takes care of the issue once and for all,

or, at least it is estoppel by judgment if not

res judicata. There may be some technical

differences between the parties.

wk &

"However, there is no damage cause if

these improperly adopted fares are subsequent-

ly determined to be fair and reasonable, then

| don't know what there is left to litigate,

except to give it to some law school moot

court, or put it on an examination; but, there

is nothing more useless than litigating issues

from which there can be no recovery in the

nature of damages or other relief.

"So, the fact that the FAA (sic) has now

found these fares to be reasonable, and that

is now on appeal, seems to me means that these

cases will all be moot. They are moot at this

oint unless that determination is reversed."

amieats added. )

Accordingly, the district court dismissed the cases

as moot, with the proviso that it would reinstate

the causes should the challenged CAB order later be

reversed,

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The above quotation from the transcript puts

flesh on the bare bones of the formal minute order.

The latter statement embodies only a one-sentence

formulation, grounding the dismissal on ''mootness,''

Our own reading of the record convinces us that the

district court concluded that all of the plain-

tiffs' claims for restitution were barred by the

CAB determination that the air passengers were not

injured by paying the fares in question, The lower

court relied on the fundamental legal premise that

mere illegality which causes no injury is not or-

dinarily compensable. Thus, the district judge

disposed of the cases upon the basis that the CAB

finding that the challenged fares were not unjust

and unreasonable necessarily implied that the

plaintiffs had not been injured and the defendants

had not been unjustly enriched.

At the time of the dismissal order, of course,

the challenged CAB order was the subject of review

proceedings. As we have previously noted, appel-

lant Keith Roberts was a party to the review

petitions. Similarly, some fourteen airlines, the

defendants-appellees in Appeal No. 74-1108, were

allowed to intervene in the review process. Since

there is identity of parties and issues, the prin-

ciples of res judicata and collateral estoppel bar

the restitution claims of Roberts.

Under 28 U.S.C. sec. 2106, this court may affirm,

modify, vacate, set aside or reverse any judgment,

decree or order of a court lawfully brought before

it for review. Accordingly, we modify the dismis-

sal order entered in Appeal No. 74-1108 so as to

represent a Rule 56(b) summary judgment in favor

of the defendants on all counts in the Roberts

complaint, on the ground that Moss || establishes,

as a matter of law, that Roberts has no right to

recover from the air carriers. As so modified,

the judgment is affirmed.

The other plaintiffs-appellants stand ina

somewhat different technical position. The record

=\™

indicates, and the Moss I! opinion confirms, that

they were not parties to the CAB proceedings which

led to Order No. 73-7-39 and that they did not

successfully intervene in the review petitions

adjudicated in the Moss || decision. Accordingly,

there is no strict res judicata effect of that

decision regarding the claims of Weidberg,

Williams, and the Air Travelers Association.

B. Mootness

in most litigation, the continuing existence of

a dispute is not questioned, and the court can

readily find that there exists a subject matter on

which the court's judgment can operate to make a

substantive determination on the merits. See

Note, The Mootness Doctrine in the Supreme Court,

88 Harv. L. Rev. 373 (1974). Courts have tradi-

tionally declined to hear cases in which neither

party stands to gain or lose by a decision on the

theory that the state should not be burdened with

the expense of trying such controversies. Id. at

374. The doctrine that courts will not hear moot

cases prevents the useless expenditure of judicial

resources. Id. at 375-76. Indeed, it has been

stated that "(i)n the cases where issues have be-

come moot as a result of judicial decision, or

otherwise, the courts unquestionably have the

authority, and it often becomes their duty, to

dismiss cases sua sponte and without any motion to

dismiss being made.'' Myers v. Polk Miller Products

Corp., 201 F.2d 373, 376 (C.C.P.A. 1953).

The transcript of the January 14, 1974, hearing,

part of which is set forth above, establishes that

the district judge used the word ''moot'' to mean

that the plaintiffs had suffered no injury by

paying the fares in question and could not recover

any monetary damages. The ambiguous usage of the

term resulted in appellate briefs setting forth

numerous cases exploring this subtle jurispruden-

tial concept. We need not determine whether the

district judge was correct in determining that the

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causes were moot as of the date of his dismissal

order, for the case law establishes an indepen-

dent and adequate ground for affirmance.

In Schy v. Susquehanna Corp., 419 F.2d 1112

(7th Cir. 1970), cert denied, 400 U.S. 828, this

court had before it a judgment dismissing the

complaint with prejudice on the merits where pro-

blems of motion practice raised important proce-

dural issues. The Schy decision held that a

motion to dismiss based upon a lack of damages

may properly be treated as a motion to dismiss

under rule 12(b) (6). Id. at 1115. The court

quoted approvingly from Premier Malt Products Co.

v. Kasser, 23 F.2d 98, 99 (E.D.Pa.1927), where

the court observed:

"There must be both the injuria and the damnum

to give a legal cause of action, and this re-

mains true notwithstanding the legal fiction

of nominal damages. Indeed, this truth made

the legal fiction logically necessary.'"'

Accord, Citrin v. Greater New York Industries, 79

F.Supp. 692, 694-95 (S.D.N.Y. 1948); Package

Closure Corporation v. Sealright Co., 4 F.R.D. 114,

116 (S.D.N.Y. 1943). Moreover, Schy, supra,

recognized that a motion to dismiss made after the

filing of an answer not only served the same

function as a motion for judgment on the pleadings

and might be regarded as one, id. at 1115, but

could be treated as a motion for summary judgment

under Rule 12(c). Id. at 1116.

In this case, the defendant air carriers moved

for dismissal on the grounds that plaintiffs had

failed to state a claim for which relief could be

granted. Moreover, shortly after entry of CAB

Order No. 73-7-39, the defendants filed a motion

for summary judgment dismissing the consolidated

actions on the ground that the CAB decision pre-

cluded recovery by the plaintiffs. The air car-

riers insisted that there was no genuine issue

e2l<

as to any material fact and that they were entit!ed

to the requested summary judgment of dismissal as

a matter of law.2 The plaintiffs responded to this

motion by arguing that the pending appeal in Docket

No. 73-1772 (the Moss review petition) made the

summary judgment request premature, by adopting all

their filed legal memoranda as an answering memoran-

dum, and by citing additional legal authority in op-

position to the motion. The plaintiffs placed great

reliance on the pendency of the appeal, and they

argued that no findings or conclusions in Order No.

73-7-39 could possibly be considered final.

Significantly, however, they made no direct argu-

ment that there was a genuine issue as to any

material fact.

We think that, in substance, if not in form, the

district court granted the defendants' motion for

summary judgment. Under the authority of Schy, we

treat the challenged dismissal order as a Rule 56(b)

summary judgment on all counts in the complaint

in favor of the defendants. As so modified the

judgment is affirmed.

11. Non-Consideration of the Class Action

Question

Another major problem still remaining in this

appeal stems from the failure of the district

court to consider or determine whether the suits

should be maintained as a class action. Although

inadequate compliance with F.R.Civ.P. 23(c)(1)

has emerged in a number of recent appeals taken

to this court, see, e.g., Peritz v. Liberty Loan

Corp., 523 F.2d 349 (7th Cir. 1975); Jimenez v.

Weinberger, ...... Pm Kewwenn No. 75-1046 (7th

Cir. September 12, 1975), neither side in the

present case has briefed or argued the legal ef-

fect of the district court's failure to make the

class determination in the instant cases.

This court has recently determined that, in an

appeal from a decision on the merits made without

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the prior class determination required by Rule

23(c)(1), the reviewing court will treat the case

as one brought by the named plaintiff only and

not as a class action. Case & Co., Inc. v. Board

of Trade of City of Chicago, 523 F.2d 355, 360,

(7th Cir. 1975). Accordingly, we treat these

cases as brought solely on behalf of the named

plaintiffs.

Under established principles, the Rule 56(b)

summary judgment against the named plaintiffs will

not protect the defendant air carriers against

other members of the class under the doctrine of

res judicata, see Katz v. Carte Blanche Corp., 496

F.2d 747, 758-759 (3d Cir. 1974), cert. denied,

419 U.S. 885. However, the defendants, by moving

for summary judgment prior to the class determina-

tion and the sending out of class notice, assumed

risk that a judgment in their favor would not pro-

tect them from subsequent suits by other potential

class members. See Haas v. Pittsburgh National

Bank, 381 F.Supp. 801, 806 (W.D.Pa. 1974), rev'd

Ege Pe | ee , No. 74-2190

(3d Cir. September 25, 1975). Since the defendants

sought summary judgment on the ground that the

named plaintiffs could not recover monetary

damages, they have the not inconsequential pro-

tection of stare decisis regarding identical claims

of unnamed plaintiffs. See Katz, supra at 759;

see also Haas, supra at 806. Although the air

carriers have never expressly stated that they

would be content to rest on the protection of

stare decisis rather than upon res judicata, we

think that the circumstances of this case autho-

rize the court to infer such a concession.

Moreover, our recent decisions leave room for

no other approach. In Peritz, the district judge

severed a central liability issue from the class

action determination issue and deferred resolu-

tion of the latter until after a jury determined

whether the defendant's loan form clearly and con-

spicuously disclosed that credit life and/or dis-

ida

ability insurance was not required for obtaining a

loan from Liberty Loan Corporation. After the

return of a special verdict establishing liability,

the judge determined that a class action could be

maintained on the claims remaining in issue. This

court ruled that the language of Rule 23(c) clearly

requires class certification prior to a determina-

tion on the merits. (emphasis in original). The

court was constrained to hold that certification

of the class was delayed beyond the permissible

period allowed by the rule.

In Jiminez, the trial court certified the case

as a class action after a decision on the merits.

The real problem lurking in the case was the

possibility of one-way intervention whereby a

potential plaintiff could await a resolution of

the merits before deciding whether or not to join

the suit. This court in the recent Jiminez

opinion indicated that, in some cases, the final

certification need not be made until the moment

the merits are decided. (emphasis in original).

Since the class allegations in that case met the

requirements of subdivision (b)(2) of Rule 23

rather than subdivision (b)(3), the court thought

it fair to infer that the timing of certification

in the former kind of class suit could differ

from the timing required in the latter. Because

the allegations met (b)(2) requirements, the court

was able to avoid concluding that non-certifica-

tion required automatic reversal. Significantly,

however, Jiminez plainly stated that a reversal

would almost certainly have been required in the

class action had it been maintained under sub-

division (b)(3).

In the instant appeals, the class allegations

fall under subdivision (b)(3). Moreover, at

least one of the named plaintiffs formally moved

for certification of the suit as a class action.

We conclude that under the mandatory language of

Rule 23(c)(1) and our prior decisions, the dis-

trict court could not, should we remand the

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present actions for entry of Rule 56(b) summary

judgments, proceed to make a delayed class certi-

fication. Thus, there is no way under the fede-

ral rules of procedure for the defendant air

carriers to secure the protection of res judicata.

They must rest content with the stare decisis

protection. We cannot countenance a patent

violation of Rule 23.

We have examined the other contentions raised

by appellants, and we find them meritless.

Accordingly, we modify the orders of dismissal,

and, treating them as summary judgment that the

named, individual plaintiffs are barred from

securing restitution from the defendant air

carriers, we affirm.

Affirmed as Modified.

ofS

Footnotes

'No separate docket number has been assigned in

the appeal Air Travelers Association, et al v. Air

West, Inc., et al., which was docketed below as

C-785. The February 12, 1974, notice of appeal

filed in Alan Weidberg, et al v. American Air-

lines, Inc., et al., Appeal No. 74-1246, clearly

stated that Air Travelers Association, et al., was

appealing from the January 14, 1974, final judg-

ment in these actions.

2The defendants-appellees relied on the same

decisional principles found determinative by the

CAB and, later, by the Moss I! court. We have

made an independent analysis of the precedents,

and we agree with the Moss II decision. The

allegations in the various complaints filed by the

plaintiffs-appellants differ somewhat in language,

but the general thrust of the language aims at a

common law declaration for money had and received.

We accept as conclusive the CAB finding, naw

affirmed by the Moss || court, that the air car-

riers were not unjustly enriched by collecting

the fares in question. Uncer these circumstances,

Atlantic Coast Line R.R. v. Florida, 295 U.S. 301

(1935), and United States v. Morgan, 307 U.S. 183

(1939), preclude a restitutionary remedy. If

Schy and its analysis were not proper authority

for treating the dismissal order as a grant of

summary judgment for the defendants-appellees, we

could properly conclude that the Williams,

Weidberg, and Air Travelers Association claims

were effectively mooted at least as of the date

October 16, 1975.

BWhile this opinion was in the final stages of

preparation, counsel for the appellants brought to

our attention that Roberts had filed a petition

for rehearing in the D.C. Circuit in Moss I! with

the suggestion that the matter be reheard en banc.

From some points of view, of course, the litiga-

tion may not be final until either there has been

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a denial of certiorari or consideration and

decision by the Supreme Court following the grant-

ing of a petition for certiorari. For that reason

we find it necessary to state that a preliminary

draft of an opinion had been prepared in the pre-

sent appeals prior to Moss I1 which reached the

same result as did the opinion in that case and

for substantially the same reasons. No purpose

was seen in preparing the final draft of this

opinion for repeating what Judge McGowan stated

so effectively in Moss II.

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