Petition for Writ of Certiorari — Cramer v. Pena
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— a ne y) 1993 |
In the Supreme Court of the mE oor om O sk |
OCTOBER TERM, 1992
BUDDY CRAMER. PETITIONER
FEDERICO PENA, SECRETARY OF TRANSPORTATION. ET AL
ON PETITION FOR A WRIT OF CERTIORARI
[TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MIP
Davip J. GALLO
Counsel of Record
101 West Broadway
Suite 1105
San Diego, Cal. 92101
Telephone: (619) 687-2300
QUESTIONS PRESENTED
1. Inter alia, Section 29 of the International Air Transpor-
tation Competition Act of 1979, Pub.L. No. 96-192, 94 Stat.
35 (1980) (the “Wright Amendment”) prohibits airlines from
permitting passengers to travel between Love Field Airport
in Dallas, Texas (“Love Field”) and points beyond certain
interstate borders (the “Restricted Borders”) without such pas-
sengers: (1) changing aircraft at some intermediate airport
(“Intermediate Airport”) located within the Restricted Borders,
(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). The first question presented is whether the Wright
Amendment impermissibly abridges fundamental rights of in-
terstate travel.
2. Inter alia, the Wright Amendment forbids airlines and
travel agents from: (1) advertising indirect service between
Love Field and points which lie beyond the Restricted Bor-
ders, (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 Bor-
ders. The second question presented is whether the Wright
Amendment impermissibly abridges freedom of speech.
3. Inter alia, the Wright Amendment requires that passen-
ger aircraft traveling between Love Field and points which lie
beyond the Restricted Borders land at an Intermediate Airport
prior to completing their journeys. The third question pre-
sented is whether the Wright Amendment violates the Port
Preference Clause.
(I)
9
II
PARTIES TO THE PROCEEDINGS
The petitioner is Buddy Cramer.
The respondents are Federico Pena, Secretary of Transpor-
tation; the United States Department of Transportation; John
V. Coleman, 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.
COO
TABLE OF CONTENTS
Page
I I sud cnccaxavcveswsndsncissivavdcecccs ]
Ne eee iss s ca iewcacsnauassbiad seed ]
STATUTORY AND REGULATORY PROVISIONS
eee ean cata cack axa neeeieusvacs cence 2
ALE ee 2
REASONS FOR GRANTING THE PETITION ... 9
ee ee iy 7, Fr 9
II. RESTRICTIONS UPON SPEECH ............. 13
ee 13
B. The Court of Appeals has Failed to Apply
the Doctrine of Central Hudson, Posadas, and
aks cack besavecscsaunesceses 15
1. Substantial Interest Criterion ................ 15
2. Direct Advancement Criterion ............... 16
3. Reasonable Fit Criterion ....... COE TO en 18
III. PORT PREFERENCE CLAUSE ............... 19
(IIT)
Page
A. Preferential Regulation Sub-clause .......... 20
B. Enter or Clear Sub-clause ................... 24
CE IE sa sanncinescnenscceaens 5 eae cin tu cinacas 25
I Fi occ iaica tanec cu badees cctareeeeeinninae anes la
| errr ckeNsdeeRaeneRK senate ei giana tak 2a
PI Tass vis cand nnvovscsivdnccccaseeabitaeie: 4a
RE TD aoisisnciatevinchee cocci ake 34a
PUIG 5 oc nc nthe ccanaskeccdtsaensaceiemeen ee 40a
RR FP * iicavccrknceacscsncascensnastenGineeisnkinndes 42a
TABLE OF AUTHORITIES
Cases:
Alabama Great Southern R.R. v.
United States, 340 U.S. 216 (1951) ............. 20, 21
Armour Packing Company v.
United States, 209 U.S. 56 (1908) .............. 2]
Attorney General of New York v.
Soto-Lopez, 476 U.S. 898 (1986) ................ 10-12, 17
Page
Austin v. New Hampshire,
420 U.S. 656 (1975) .......cccccceeececeecceeeeeee 10
Bigelow v. Virginia,
ee See IE. “eanrscviavcccasiehenissictuus 13, 14
Board of Trustees of the State University
of New York v. Fox, 492 U.S. 469 (1989) .... 13, 15-
Califano v. Aznavorian,
ee ec ee Ce oi dh cs ka cana cesbeeeescacansesss
Carey, etc., et al., v. Population
Services International, et al.,
Se Bias IP ETE Kicicecsunshavccaucchcccsncouss 13,
Central Hudson Gas & Electric Corporation v.
Public Service Commission of New York,
Re SB Fare Cee wi av eins cinvsindeccesiacues 7, 13, 15-
City of Houston v. Federal Aviation
Administration, 679 F.2d 1184
Se NG IE an Covcent onus saocunecacusss cnisencs os = 4
City of Milwaukee, et al. v. Block, et al.,
623 F.30 1156 (7th Cir. 1087). ...............5:
City of Milwaukee, et al. v. Yeutter, et al.,
877 F.2d 540 (7th Cir. 1989), certiorari
denied, 493 U.S. 976 (1989) ..................... Zi, 22,
Continental Air Lines, Inc. v. Department of
Transportation, 269 U.S.App.D.C. 116;
843 F.2d 1444 (D.C. Cir. 1988) ................
10
19
22
24
VI
Page
Crandall v. Nevada, 6 Wallace 35 (1867) ..... 9, 10
Dunn v. Blumenstein,
405 U.S. 330 (1972) ...cccccccccccccccccccceeceeees “10, 11
Griffin v. Breckenridge,
das Ue CMUEOEE Scns kc inukknercavxakbuuecccecens 10
Haig v. Agee, 453 U.S. 280 (1981) ............. 10
Jones v. Helms, 452 U.S. 412 (1981) .......... 10, 12
Louisiana Public Service Commission,
et al. v. Texas & New Orleans R.R.,
SE Es RE MEEEIED Sndnkgdcehabaccucascessbensecns 20, 21
Memorial Hospital v. Maricopa County,
Se EAs GY LOOMED. cdacecccsdnenanccescersevescess 12
Passenger Cases, 7 Howard 283 (1849) ........ 9g
Paul v. Virginia, 8 Wallace 168 (1869) ........ 9, 10
Posadas de Puerto Rico Associates v.
Tourism Company of Puerto Rico,
Ss GE MUD vcceavbanskcacssnnndsdacdecescs 13-18
Shapiro v. Thompson,
ee Ces senvnercdussuvasecssaacenacess 6, 10-12
State of Kansas, et al. v. United States
of America, et al., 797 F.Supp. 1042
(D.D.C. 1992), appeal docketed,
EL ciickerebdakschuesigednveanecebiduasnes'es 7
VII
Page
State of Nevada, et al. v. Watkins,
914 F.2d 1545 (9th Cir. 1990),
certiorari Pa Sn | i See
[111 S.Ct. LIOS] (IDOL) ......cccccvevcccsecesesens 22
a
State of Pennsylvania v. Wheeling and
Belmont Bridge Co., et al.,
BR Biarnetl GE) (IGGS) ccccsesccccvsves dedscevesces 90. 21, 2
State of South Carolina v. State of
Georgia, et al., 3 Otto 4 (1876) .........--.-+-- 21
Twining v. New Jersey,
911 U.S. 78 (GOB) .......c.ccecccccccccccscccccces 9, 10
United States v. Guest,
SR U.S, TES CUBS) on cccccccvecccssccccencesceecss 10
United States v. Ptasynski, et al.,
GBS U.S. TE (UGBS) .ccvccccccccscccscccsncccesceess 22
Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, Inc.,
QBS U.S. TAB (IGTS) cccccecscsvcccnncccovssvecssees 13
Ward v. Maryland,
12 Wallace 418 (1871) ............cccccccccesceees 9, 10
Zobel v. Williams,
SET US. Be CHGR) ccccscscccscnsccovasssncsscosees §, 10-12
VII
Page
Constitutional provisions:
Article I, Section 9, Clause 6
(“Port Preference Clause’) .............. 6, 8, 19 et seq.
Article IV, Section 2, Clause 1
(“Privileges and Immunities Clause”) .......... 6, 9, 12
Ce ae a eee eee 3)
Amendment V, Clause 3
(“Fifth Amendment Due Process Clause”) .... 6, 1]
Statutes and Regulations:
Title 28, U.S.C., Section 1254(1) ............... ]
pe RE oe | : | eee ee 6
Title 28, U.S.C., Section 1346(a)(2) ............ 6
Airline Deregulation Aci of 1978,
Pub.L. No. 95-504, 92 Stat. 1705 (1978) ...... 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)
(the “Wright Amendment”) .....................05. passim
Other authority:
Order 85-12-81 of the United States
Department of Transportation
Sy RU I Baris cuucndewsnceesescrsudduvassdcss passim
Jn the Supreme Court of the United States
OCTOBER TERM, 1992
No.
BUDDY CRAMER, PETITIONER
Dv.
FEDERICO PENA, SECRETARY OF TRANSPORTATION, 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 court of appeals issued no opinion subsequent to re-
mand. (See App., infra, la.) The opinion of the district court
subsequent to remand (App., infra, 2a-3a) is unreported. The
opinion of the court of appeals prior to remand (App., infra,
4a-33a) is reported at 931 F.2d 1020. The opinion of the district
court prior to remand (App., infra, 34a-39a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered January
6, 1993. (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).
~
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
The relevant provisions of the International Air Transpor
tation Competition Act of 1979, Pub.L. No. 96-192, 94 Stat
35 (1980), are reproduced at App. E., infra, 40a-4la
STATEMENT
1. Section 29 of the International Air Transportation Com
petition 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.
v. Department of Transportation, 269 U.S.App.D.C. 116; $43
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 bar-
riers 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
‘ In Continental Air Lines, the United States Court of Appeals for
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. F, infra,
42a-62a.
Mexico, or Texas).2 Thus the unrestricted service area pre-
scribed by the Wright Amendment is defined by the interstate
borders which constitute the outer perimeter of the Enumer-
ated 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,
58a.)? 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 interstate travel) may not
traverse the Restricted Borders by remaining on a single air
craft. (DOT Order, at App., infra, 58a.)* For exarnple, 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 “Interme-
diate Airports’). In the example of a Love Field Passenger
? Louisiana, Arkansas, Oklahorna, New Mexico, and Texas may be
hereinafter referred to individually or collectively as “Enumerated
States”. States which are not privileged to be arnong the Enumerated
States may be hereinafter referred to individually or collectively as
“Unenumerated States”.
> The phrase, “through service” refers to the provision of transpor-
tation between an ultimate origin and an ultimate destination on a
single ticket for a single surn 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,
56a. )
‘ 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.”
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
(i.e., Tulsa) as required by the Wright Amendment, all pas-
sengers must disembark; they may not re-board the same air-
craft to continue their travel to Love Field. The same aircraft
is open, however, to any and all other persons wh» desire to
travel from the Intermediate Airport (here, Tulsa) to Love
Field.
After they are compelled to disembark aircraft at an Inter-
mediate Airport, Love Field Passengers are permitted to con-
tinue their interstate travels on another aircraft, via the “most
efficient connecting flight”. (DOT Order, at App., infra, 55a.)
However, the Wright Amendment imposes heavy burdens
upon those who elect to do so. The Wright Amendment com-
pels air carriers to deny certain public accommodations (e.z.,
baggage handling and transfer) to such Love Field Passengers.
(DOT Order, at App., infra, 57a.) By requiring Love Field
Passengers to claim and recheck their baggage at an Inter-
mediate 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 In-
termediate 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.,
ut
infra, 56a, 58a.) 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 desti-
nation beyond the Restricted Borders.°
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,
59a.) 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, 57a, n.8.) Thus,
the Wright Amendment ensures that the cost of Wright
Amendment-restricted double-ticketed travel across the Re-
stricted Borders is higher than it would be in the absence of
the Wright Amendment.
The Wright Amendment prohibits air carriers from “of-
fer[ing] for sale transportation to or from . . . any point which
is outside any [Enumerated] State.” (App, infra, 4la.) This
“ban on advertising” prohibits air carriers and even travel
agents from “advertis[ing], promot[ing], or otherwise affir-
matively solicit[ing] double-ticketing passengers.” (DOT Or-
der, at App., infra, 57a, 58a, 59a.) Accordingly, the Wright
Amendment prohibits air carriers and travel agents from dis-
seminating truthful, “[u]nsolicited information furnished to the
public in any form . . . .” which might facilitate travel be-
tween Love Field and poir's beyond the Restricted Borders.
(DOT Order, at App., infra, 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, 58a.
Emphasis added.) Further, the mere act of “stat[ing] as a single
amount” the total cost of service between Love Field and
5 The sale of such a combination of tickets is referred to as “double
ticketing”. (DOT Order, at App., infra, 55a.)
points beyond the Restricted Borders would constitute an at-
tribute of through service, and is therefore prohibited by the
Wright Amendment. (DOT Order, at App., infra, 56a 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 fun-
damental right of interstate travel, (2) that the Wright Amend-
ment 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) or 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 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 Gov-
ernment (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
® 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 en-
forcement thereof, and recovery of damages in the sum of $100.
~l
of the three-part test approved by this Court in Central Hud-
son 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 scru-
tiny 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 pas-
senger 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 Re-
stricted Borders to Love Field enter a port within an Enu-
merated 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 motion to dismiss
for lack of standing, or for summary judgment. Cramer filed
a cross-motion for summarv judgment. The district court dis-
missed Cramer's complaint for lack of standing, whereupon
Cramer perfected an appeal.*
3. In a published opinion issued May 9, 1991, the court of
appeals held that Cramer had standing to challenge the Wright
’ Respondents, Federico Pefia (as successor to Samuel K. Skinner
and Andrew H. Card, Jr.), United States Department of Transpor-
tation, John V. Coleman, Office of Aviation Analysis, and the United
States of America, may be hereinafter referred to collectively as the
“National Government.”
* Subsequent to the district court’s dismissal of Cramer's complaint,
but prior to reversal of such dismissal by the court of appeals,
petitioner's counsel commenced representation of other litigants who
challenge the constitutionality of the Wright Amendment. See State
of Kansas, et al. v. United States of America, et al., 797 F.Supp.
1042 (D.D.C. 1992), appeal docketed, No. 92-5259.
Amendment, and vacated the district court's order dismissing
Cramer's complaint. (App., infra, 20a, 33a.) The court of ap-
peals also purported to address the merits of Cramer's claims,
purporting to conclude that the district court “did not err
. . . by not granting Cramer's cross-motion for summary
judgment.” (App., infra, 33a. Emphasis added.) The court of
appeals declined to rule upon the National Government's mo-
tion for summary judgment on the ground that “the Govern-
ment did not cross-appeal from the district court's jurisdictional
dismissal.” (App., infra, 33a.) Instead, the court of appeals
remanded this case “with instructions to the district court to
consider the Government's motion for summary judgment and
for further proceedings consistent with [the May 9, 1991] opin-
ion.” (App., infra, 33a.)
In concluding 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 restric-
tions on interstate travel to be “[mlinor restrictions
. . . [which] do not amount to the denial of a fundamental
right that can be upheld only if the Government has a com-
pelling justification.” (App., infra, 24a.) 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, 26a.) The court of ap-
peals further held that the Wright Amendment's content reg-
ulation 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,
3la, 32a.)
On July 18, 1991, Cramer petitioned this Court for a writ
of certiorari to review the May 6, 1991 judgment of the court
of appeals. (Docket No. 91-112.) In its Brief for the Respon-
dents in Opposition (“Resp. Br. Opp.”), the National Gov-
ernment argued, inter alia, that the court of appeals “had no
jurisdiction” to consider the constitutionality of the Wright
Amendment, “because denials of summary judgment motions
are not appealable.” Resp. Br. Opp., at 5. (Emphasis added.)
The National Government further argued that, “[i]n the pe-
culiar, interlocutory posture of this case, the Court should
deny the petition. . .” Id.
On October 15, 1991, this Court denied Cramer's prior
petition without comment. See 112 S.Ct. 298.
On April 15, 1992, the district court granted the National
Government's motion for summary judgment (see App., infra,
2a to 3a), and entered judgment for the National Government.
Cramer appealed.
On January 6, 1993, the court of appeals summarily affirmed
the April 15, 1992 judgment of the district court. (App., infra,
la.)
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) (“[Cl]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 guar-
anteed to him by the Constitution . . .”); Paul v. Virginia,
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 415,
430 (1871) (Article IV, § 2“. . . secures 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,
——————
10
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 in-
terstate 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 lib-
erty unite to require that all citizens be free to travel [inter-
state] . . .”); Griffin v. Breckenridge, 403 U.S. 88, 105 (1971)
(". . . the right of interstate travel is constitutionally pro-
tected . . .”). See also Dunn v. Blumenstein, 405 U.S. 330
(1972); Austin v. New Hampshire, 420 U.S. 656 (1975); Cal-
ifano v. Aznavorian, 439 U.S. 170 (1978); Jones v. Helms, 452
U.S. 412 (1981); Zobel v. Williams, 457 U.S. 55 (1982); At-
torney 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 “uncondi-
tional 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 (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,
1]
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 in-
direct burdens upon the exercise of the right to migrate,
through classification of residents according to duration of res-
idency. 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.” Id.,
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 Id., at 644: a statute which “impinges
upon the constitutional right of interstate travel must be shown
to reflect a compelling governmental interest. This is neces-
sarily true [when] the impinging law [is] . . . a federal reg-
ulatory clause, to be tested against the Due 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 ei-
ther 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 im-
permissibly 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.
12
Instead the court of appeals relied upon Attorney General of
New York, supra, at 903, for the preposition that, “[mlJinor
restrictions on travel simply do not . . . [require] compelling
justification.” App., infra, 24a. 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 Sha-
piro left unclear the amount of impact on the right to travel
which is necessary to give rise to application of heightened
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, 25a, n.10. Cramer submits that Jones is wholly inap-
posite 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 im-
portant question of federal law which has not been, but should
be, settled by this Court.®
* 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., con-
curring]) provides immunity against interference by the National
Government.
13
Il. RESTRICTIONS UPON SPEECH
As noted above, the Wright Amendment prohibits publi-
cation by airlines and travel agents of, inter alia, advertise-
ments and connecting flight schedules respecting otherwise
lawful double-ticketed travel between Love Field and points
beyond the Restricted Borders.
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 re-
stricted commercial speech, and purported to conduct the in-
quiry prescribed for review of content regulation of ordinary
commercial speech in Central Hudson Gas & Electric Cor-
poration v. Public Service Commission of New York, 447 U.S.
557, 566 (1980). App., infra, 29a.
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 constitu-
tionally 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 Phar-
macists, supra}). See also Bigelow v. Virginia, 421 U.S. 809,
822 (1975) (noting that the “activity advertised pertained to
constitutional interests’).
14
In the case at bar, Cramer seeks to have heightened scrutiny
applied to the Wright Amendment's content regulation of pro-
tected commercial speech on the ground that such regulation
applies only to speech which facilitates a constitutionally pro-
tected activity (i.e., traversing the Restricted Borders). (Cra-
mer 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 af-
forded protection equivalent to that afforded non-commer-
cial 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, 29a, n.16. Cramer submits that the question
whether the Wright Amendment’s restrictions upon interstate
movement are constitutional is wholly distinct from the ques-
tion whether the Wright Amendment's content regulation of
protected commercial speech should be subjected to height-
ened scrutiny. (See Carey, supra, analyzing restrictions upon
distribution of contraceptives 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 con-
stitutionally 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 Big-
elow and Carey do not control, this case presents an important
15
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 gov-
ernment’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 566.
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.
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 reg-
ulation of protected commercial speech served a substantial
governmental interest of Congress in “resolving [a] dispute
between Dallas and Fort Worth’”® relating to primacy in avi-
ation. App., infra, 3la. This Court has previously upheld con-
tent regulation of protected commercial speech only where
much greater interests of government were served. See Cen-
tral 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
© 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.
16
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 in-
terests 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 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 com-
mercial 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 pur-
pose.” Central Hudson, supra, at 564. See, e.g., Id., at 569.
‘! The court of appeals assumed, sub silencio, that if the National
Government had a substantial interest in restricting speech at the
time the Wright Amendment was enacted, the substantial interest
criterion would be established in perpetuity. (See App. 24a, n.9,
infra.) Applying this rationale, a war-time statute prescribing in-
ternment of persons of enemy alien ancestry might remain enforce-
able after the cessation of hostilities on the ground that such statute
was necessary to advance the compelling governmental interest of
national security at the time of its enactment.
17
(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’ fur the dispute
between Dallas and Fort Worth . . . 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['2] even for
travelers who realize that such information is available upon
request.
“, . . The Love Field amendment’s limitation on advertis-
ing 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.”
‘2 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.
' 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.
18
App., infra, 3la-32a. 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 de-
mand. For example, it is axiomatic that reduction of demand
for electricity will directly advance conservation thereof. (Cen-
tral 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 com-
mercial speech is at best, “ineffective” and “remote”.
In concluding that the Wright Amendment's content reg-
ulation 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.
amend
3. -Reasonabie 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 “reason-
able fit” requires that the regulation at issue “employs not
necessarily the least restrictive means but . . . a means nar-
rowly tailored to achieve the desired objective.” Id., at 480.
With little discussion, the court of appeals held that the
Wright Amendment's content regulation of protected com-
19
mercial 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 be-
tween Dallas and Fort Worth.”
App., infra, 32a. (Emphasis added.) The court of appeals did
not consider the availability of alternative (and far less intru-
sive) 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 reg-
ulation of protected commercial speech satisfies the final Cen-
tral 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 ren-
dered 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 Com-
merce or Revenue to Ports of one State over those of an-
other: 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.'* See
'* Cramer shall hereinafter refer to the first sub-clause (i.e., “No
Preference shall be given by any Regulation of Commerce or Rev-
enue 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.
20
State of Pennsylvania v. Wheeling 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 im-
plicating the Preferential Regulation Sub-clause) establish the
general rule that, in order to contravene the Preferential Reg-
ulation 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 in-
dividual ports within the same or different States, but dis-
crimination between States . . .”
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 author-
izing, “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 improvernent of the harbor at Sa-
vannah, 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 shal! 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 Ar-
mour 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 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 Com-
merce Commission regulation prescribing rates for transpor-
tation of road surface components which were calculated by
adding 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 Al-
abama 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 transpor-
tation of certain materials did not impermissibly preter 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,
22
et al., 877 F.2d 540, 545 (7th Cir. 1989), certiorari denied,
493 U.S. 976 (1989). (“Disparate consequences of neutral rules
do not violate the Port Preference Clause.”) See also City of
Houston v. Federal Aviation Administration, 679 F.2d 1184,
1198 (5th Cir. 1982). (1000-mile perimeter rule at Washington
National Airport, “which for geographic reasons has an inci-
dental effect on air travel from certain states” did not offend
the Port Preference Clause where its disparate effects were
an, “accident of geography, not any deliberate discrimination
against . . . a named state or states.”)
During the first three decades of this Court’s forty-two-year
silence on the Port Preference Clause,'® the lower courts were
also virtually silent. See City of Houston, supra, at 1196.
(Noting that “[dJecisions 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, ct 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. — [111 S.Ct. 1105] (1991). During this pe-
riod, 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 le-
gitimate government act regulating commerce or (ii) more
'S 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 com-
merce power’).
ee
23
as a result of the accident of geography than from an in
tentional government preference .”
App., infra, 26a, 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 con-
sistent 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 Amend-
ment expressly prefers the named, Enumerated States, over
the Unenumerated States. Third, the Wright Amendment's
detrimental effect upon the ports cf the Unenumerated States
is not merely “incidental” (as that term was employed in State
of Pennsylvania 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 far-away places as E] Paso, Texas
and Albuquerque, New Mexico, but may not travel freely to
nearby Wichita, Kansas or Kansas City, Missouri, simply be-
cause these cities lie beyond the Restricted Borders.) Accord-
‘6 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 Enu-
merated States over the Unenumerated States.
24
ingly, 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-two 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 fed-
eral law which have not been, but should be, settled by this
Court. Additionally, Cramer submits that the court of appeals
has decided the question whether the Wright Amendment is
repugnant to the Preferential Regulation Sub-clause in a man-
ner 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 reg-
ulation 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 regu-
lation of commerce, and none has involved a statute or reg-
ulation 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 con-
travenes the Enter or Clear Sub-clause by requiring that pas-
senger aircraft bound from Love Field to points beyond the
29
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 question of first
impression 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
101 West Broadway, Suite 1105
San Diego, California 92101
Telephone: (619) 687-2300
March 1993 Counsel for Petitioner
APPENDIX A
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 92-1519
BuDDY CRAMER, Plaintiff-Appellant
ANDREW H. Carp, JR., as Secretary of Transportation,
et al., Defendants-Appellees.
JANUARY 6, 1993
Before WISDOM, and DUHE, Circuit Judges, and
HAIK, District Judge.
PER CURIAM:
AFFIRMED. See Local Rule 47.6.
la)
APPENDIX B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
No. 3:89-CV-1029-G
BupDpy CRAMER, Plaintiff
uw
ANDREW CarbD, Secretary of Transportation,
et al., Defendants.
APRIL 15, 1992
Before A. Joe Fish, District Judge.
MEMORANDUM ORDER
This case is before the court on remand from the Court
of Appeals, Cramer v. Skinner, 931 F.2d 1020 (5th Cir.
1991), which vacated the judgment of this court in favor
of the defendants and remanded with instructions to con-
sider the yovernment’s motion tor summary judgment.
Id. at 1035.
This court is persuaded that the government's motion
should be granted. Acknowledging that “‘this dis-
(2a)
3a
pute . . . does not present any contested issues of ma-
terial fact,” id. at 1029, the Court of Appeals considered
point by point the claims of plaintiff Buddy Cramer and
concluded that he was not entitled to relief. Id. at 1029-
1035. There being no issues of fact requiring a trial,
summary judgment on the issues of law is clearly ap-
propriate. Rule 56(c), F.R. Civ. P. Under the law of the
case doctrine, however, Cramer cannot prevail on his
claims. See, e.g., Knotts v. United States, 893 F.2d 758,
761 (5th Cir. 1990); Browning v. Navarro, 887 F.2d 553,
556 (5th Cir. 1989). The government's motion for sum-
mary judgment is therefore GRANTED, for the reasons
stated by the Court of Appeals. Id.
SO ORDERED.
April 15, 1992.
/s/ A. Joe Fish
A. JOE FISH
United States District Judge
APPENDIX C
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 90-1303
BUDDY CRAMER, Plaintiff-Appellant
v.
SAMUEL K. SKINNER as Secretary of Transportation,
et al., Defendants-Appellees,
and
SAFE AIRSPACE FOR EVERYONE, et al.,
Intervening Defendants-Appellees.
MAY 9, 199]
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, s 29, 94 Stat. 35 (1980)
(4a)
(Love Field amendment), which restricts interstate air
service from Love Field Airport (Love Field) in Dallas,
Texas, abridges his 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 th.« © Cramer has standing, he
cannot succeed on the merits. Cramer opposed the Gov-
ernment’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 Cra-
mer. 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 tc 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, how-
ever, also appeals from the district court’s denial of his
cross-motion for summary judgment. We affirm the dis-
trict court’s denial of Cramer's cross-motion for summary
judgment on the merits.!
' 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 determi-
nation, it arguably considered the standing issue on the Govern-
ment’s motion for summary judgment. Even if the district court
considered the standing issue on the Government's motion for sum-
mary judgment, however, it considered only the jurisdictional ques-
tion and not the merits of Cramer's claims.
6a
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 serv-
ice 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 com-
promise, 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. Id. For several vears there-
after, Southwest operated flights from Love Field to lo-
cations within Texas. Because it operated from Love Field
only intrastate, Southwest was exempt from the regula-
tions that governed interstate airline operations under the
Federal Aviation Act of 1958, 49 U.S.C.App. s 1301 et
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 Dal-
las and Fort Worth and the Dallas-Fort Worth Regional
Airport Board that the Airline Deregulation Act of 1975
(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 de-
regulating the airline industry. See International Air
Transportation Competition Act of 1979, s 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 inter-
state 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 serv-
ices 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 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 air-
line, however, from providing such information on re-
quest. 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.’
2 Texas International Airlines made the first such attempt. It began
operating interstate service from Love Field in 1980, but subse-
quently 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
a
8a
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 indi-
vidual defendants in their official capacity, DOT, and
DOT's Office of Aviation Analysis enforce the Love Field
amendment.
On June 20, 1989, the Government filed a motion to
dismiss the complaint for lack of standing or, in the al-
ternative, for summary judgment. On July 7, 1989, Cra-
mer 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 dem-
onstrate standing to challenge the Love Field amend-
ment. The court held that the Love Field amendment’s
restrictions on advertising had not injured Cramer be-
cause 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-motiens for
operations. Finally, Continental Airlines in 1985 announced plans to
begin airline operations at Love Field but never began such service.
Ya
summary judgment. Cramer filed a timely notice of
appeal.
II. ANALYSIS
A. Standing
1. Standard of review
“Article III 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 con-
troversy requirement that a litigant must have “standing”
to maintain an action in federal court. In order for a
litigant to establish standing, article III, 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 chal-
lenged 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 U.S. 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:
|
10a
1) whether the plaintiff's complaint falls within the
zone of interests protected by the statute or con-
stitutional provision at issue;
whether the complaint raises abstract questions
amounting to generalized grievances which are more
appropriately resolved by the legislative branches;
and
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, 11] 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. Jd. 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 con-
tained in his complaint as true even if not supported by
admissible summary judgment evidence. The Govern-
ment, on the other hand, contends that we should apply
the summary judgment standard and consider only Cra-
mers admissible summary judgment evidence. The rec-
to
lla
ord is unclear on whether the district court granted the
Government's motion based on Rule 12(b) or Rule 56.
Even if we apply the summary judgment standard and
consider only Cramer's admissible summary judgment ev-
idence, 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 Rules of Civil Pro-
cedure. 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 issue of 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 Cra-
mer’s motion for summary judgment must be denied.” The Gov-
ernment 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 Isquith v. Middle South Util-
ities, Inc., 847 F.2d 186, 192-95 (5th 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 claims
and to the standing issue, and the district court did not exclude
these affidavits. In fact, in making its standing determination, the
:
12a
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 car-
riers and travel agents volunteering information concern-
ing travel beyond 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 amend-
ment were held unconstitutional.” The district court did
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 amend-
ment 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... .”
13a
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 amend-
ment, or whether invalidation of the Love Field amend-
ment 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 Vir-
ginia State Bd. of Pharmacy, the Court reasoned that
“lilf there is a right to advertise, there is a reciprocal
right to receive the advertising, and it may be asserted
[by would-be listeners].” Id. 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 amendment
right to receive commercial speech and that they may
assert that right despite their ability to receive the in-
formation 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
l4a
would-be listeners who know to ask for the information
have not been injured. We disagree.
The Supreme Court has described the injury require-
ment for standing as an “injury in fact” that is “distinct
and palpable,” and not “abstract,” “conjectural,” or “hy-
pothetical.” See Allen, 468 U.S. at 751, 104 S.Ct. at 3324.
If an i..dividual’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 griev-
ance common to ail 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 com-
missions in the Armed Forces Reserve under the incom-
patibility 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 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 ap-
preciation 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. Id. at 485,
102 S.Ct. at 765.
Cramer's first amendment claim meets this standard.
Although Cramer does not allege a large or intense per-
15a
sonal injury, it is not merely an “ ‘abstract injury in non-
observance 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 amend-
ment, he contends, makes planning his trips more dif-
ficult. 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 distinction between
injuries that are large, and those that are comparatively
small. See United States v. Students Challenging Regu-
latory 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 min-
imum quantitative limit required to show injury; rather,
the focus is on the qualitative nature of the injury, re-
gardless of how small the injury may be.”); Action Alli-
ance of Senior Citizens v. Heckler, 789 F.2d 931, 937
(D.C.Cir.1986) (injury “will not suffice if it is too spec-
ulative, 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
16a
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 re-
quirement “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 U.S. 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 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 when-
ever 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.” Val-
ley 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 Cra-
mer has alleged a sufficient injury to have standing to
assert his first amendment claim.‘
* We also note that the Government's argument appears to put the
burden on the wrong shoulders. If the statute is, in fact, unconsti-
tutional, 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
l7a
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 attrib-
utable 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 as-
serted 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 require-
ment, 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 S.Ct. 1673,
1682 n. 15, 72 L.Ed.2d 33 (1982) (“[A] plaintiff satisfies
the redressability requirement when he shows that a fa-
impart information even at Cramer's request, thus impairing his
ability to exercise his right to hear.
5 The district court did not consider Cramer's alleged economic
injury.
18a
vorable decision will relieve a discrete injury to himself.
He need not show that a favorable decision will relieve
his every injury.”) (emphasis in original).
Cramer argues that three distinct injuries might be
redressed by a favorable ruling: injury to his first amend-
ment 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 dis-
trict court did find, however, that a favorable ruling
would not redress Cramer’s injury to his right to inter-
state 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 re-
dressed if, because of a favorable ruling, an air carrier
or travel agent advertised, published, or volunteered in-
formation concerning service outside_the Love Field serv-
ice area. Cramer satisfied this requirement by supplying
the affidavit of a travel agent stating that she would 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 fa-
vorable ruling would redress Cramer’s alleged first
amendment and interstate travel injuries. The Govern-
ment argues that, although Cramer could not receive
19a
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 proba-
bility 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 in-
ferred 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
Southwest instituted through fares at Love Field, or if
Southwest ceased the inconveniences now mandated by |
the Love Field amendment, such as requiring passengers
® 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 dem-
onstrate the likelihood that America West actually would commence
service as a result of a favorable 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 circum-
stances, 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.
20a
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 serv-
ice 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 pas-
senger to depart from a flight continuing to the passen-
gers final destination, require the passenger to collect
luggage, buy another ticket, and wait at least forty-five
minutes before continuing on another flight. The Gov-
ernment argues that such a conclusion is mere specula-
tion. 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 prob-
ability 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 trace-
able to the illegal conduct, we conclude that Cramer has
standing to challenge the Love Field amendment.
2la
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 in-
terstate travel rights and because the Government has
not advanced a governmental interest sufficient to justify
these abridgments.
1. Restrictions on Cramer’s right to interstate travel
Although no clause in the Constitution specifically pro-
vides 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 priv-
ileges and immunities clause of article IV,’ the assembly
’ Cramer appears to confuse the privileges and immunities clause
of article IV, 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, s 2, cl. 1. The privileges and immunities clause
of article ITV merely limits the right of states to exclude citizens cf
other states from privileges granted to its own citizens. United States
v. Wheeler, 254 U.S. 281, 41 S.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
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.
We do not write on an entirely clean slate in deter-
mining whether the Love Field amendment impermis-
sibly infringes on Cramer's right to interstate travel. In
City of Houston v. F.A.A., 679 F.2d 1184, 1198 (5th
Cir.1982), we upheld similar restrictions placed on the
use of Washington's National Airport (National). We re-
jected in that case a challenge to Federal Aviation Ad-
ministration regulations that prohibited the use of
National for non-stop flights to cities more than 1,000
miles from Washington. Under those regulations, a trav-
eler from a location more than 1,000 miles from Wash-
ington 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.
Id. at 1186, 1187. The plaintiffs in City of Houston ar-
gued, 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 expe-
rienced traveler can attest, finds no support. . .
Id. at 1198.8
* The Second Circuit upheld a similar perimeter rule in Western
Air Lines, Inc. v. Port Authority, 817 F.2d 222 (2d Cir.1987), cert.
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.” Id. 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 in-
cluding 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 Con-
gressional statute regulating commerce may not use state
boundaries for definitional purposes, nor can we 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.
denied, 485 U.S. 1006, 108 S.Ct. 1467, 99 L.Ed.2d 697 (1988). 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.
ES
24a
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 unnec-
essary. 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 be-
tween 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 agree-
ment. 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.
As we stated in City of Houston, travelers do not have
a constitutional right to the most convenient form of
travel. Id. 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 im-
peding 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 un-
restricted 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.
* Congress may, in the future, elect to respond to changing con-
ditions at Love Field. That case is not before us, and we do not
intimate what our response might be to such a Congressional
decision.
ee
25a
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. & Ad-
min.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 gov-
ernmental act that limits the ability to travel interstate,
such as placing a traffic light before an interstate bridge,
would raise a constitutional issue.
© 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 in-
terstate travel do “not infringe upon appellee’s fundamental rights,”
the state “need not employ the least restrictive, or even the most
effective or wisest, means to achieve its legitimate ends.” Id. at 425-
26, 101 S.Ct. at 2443.
Similarly, in Niles v. University Interscholastic League, 715 F.2d
1027 (5th 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 stu-
dent 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
———————————— <<
26a
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.
U.S. Const. art. I, s 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 contig-
uous to Texas before continuing.!! The Love Field amend-
ment, 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 govern-
ment act regulating commerce or (ii) more as a result of
the accident of geography than from an intentional gov-
ernment preference.” City of Houston, 679 F.2d at
1197. The Love Field amendment satisfies both tests.
his argument, we reasoned that the rule was not a significant in-
fringement on the student's right to travel. Id. at 1030-31.
‘1 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.
2 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
27a
Cramer, however, argues that the Love Field amend-
ment’s detriment to Love Field is not incident to a le-
gitimate 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 agree-
ment 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 Con-
gress chose those borders for any reason except that they
happened to be the states closest to Dallas and Fort
Worth."*
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, 340 U.S. 216, 229, 71
S.Ct. 264, 272, 95 L.Ed. 225 (1951), the Supreme Court upheld an
Interstate Commerce Commission order that allegedly gave a pref-
erence to a New Orleans port over ports in other states on the
ground that “whatever preference there is to New Orleans is a result
of geography and not of any action of the Commission.”
'S 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 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.
'* 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 dis-
28a
Cramer also argues that the Love Field amendment
violates the assembly clause of the first amendment.'® He
discusses the “freedom riders” of the desegregation move-
ment, 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 re-
strictions 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 do2s not contend
that he has a political motive for his travel or that Con-
gress 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 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 de-
criminated against the 45 states not bordering on Texas by requiring
travelers from such states to use DFW if they wish to travel to
Dallas-Fort Worth on a non-stop or “through” ticket.
‘Ss Cramer, however, cites no precedent for this proposition.
29a
termine whether the speech at issue is commercial. If
so, we must ascertain if it receives first amendment pro-
tection. Finally, if the first amendment protects the
speech, we must decide if the Love Field amendments
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). Clas-
sification of the speech as commercial does not become
inappropriate merely because the speech is mixed with
pure speech or touches on matters of public concern. Id.
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 transpor-
tation 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 trans-
portation 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.” Id., 109 S.Ct. at 3032 (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
‘6 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 ar-
30a
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. Tour-
ism 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 in-
terest."!” 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 deter-
mine if the Government has a substantial interest in re-
stricting information concerning travel from Love Field
to locations outside the Love Field service area. Cramer
contends that the Government has not asserted a sub-
stantial interest. We disagree. The purpose of the Love
Field amendment, as stated in the Conference Commit-
tee report, was to provide “a fair and equitable settlement
for a dispute that has raged in the Dallas/Fort Worth
gument 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.
‘7 The Supreme Court has upheld substantial restrictions on com-
mercial speech under this standard. See e.g., Posadas, 478 U.S. 328,
106 S.Ct. 2968 (upholding prohibition on advertising gambling ca-
sinos to Puerto Rico residents).
Ce
3la
area for many years” and has been agreed to by “South-
west 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 con-
clude that Congress had a substantial interest in resolving
the dispute between Dallas and Fort Worth, a contro-
versy that had long hindered efforts to improve airline
service for the Dallas-Fort Worth area. See City Of Dal-
las, 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 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 metro-
politan area. The Love Field amendment'’s restrictions
on advertising directly advance that interest by encour-
aging the use of DFW rather than Love Field. It en-
courages 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.'®
'8 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 literally falling from the skies, from
creating a class of virtual noise refugees, and from worsening the
already serious asthmatic conditions of residents.
'* 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
32a
The challenged statute also satisfies the last prong of
the Central Hudson test because the restrictions on com-
mercial 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 lim-
itation 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
State Bd. of Pharmacy, 425 U.S. at 768, 96 S.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. Id. The Government's interest in en-
acting 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 at
issue in Virginia State Bd. of Pharmacy did not directly advance
the Government's asserted interest. The Board's asserted goals of
promoting professionalism among pharmacists 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.
33a
the agreement between Dallas and Fort Worth. We con-
clude, 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.
Ill. CONCLUSION
For the foregoing reasons, we conclude that the district
court erred by dismissing Cramer’s suit for lack of stand-
ing, but properly denied Cramer’s cross-motion for sum-
mary judgment. Although the Government has fully
briefed the merits of its motion for summary judgment,
we cannot order judgment on the merits for the Gov-
ernment 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 (5th 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.
APPENDIX D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
No. CA 3-89-1029-G
BupDDy CRAMER, Plaintiff
Dv.
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 Com-
petition Act of 1979, P.L. 96-192, 94 Stat. 35, 48-49 (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.
(34a)
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 con-
sented to move their operations to DFW.
When DFW opened in 1974, the certificated airlines
fulfilled their promise to move to DFW. Southwest Air-
lines (“Southwest”) however, opted to remain at Love
Field and to continue its intrastate operations there. Dal-
las, 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 air-
line service with 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
' At that time, airlines providing interstate transportation on large
aircraft were required to obtain a certificate from the Civil Aero-
nautics Board.
36a
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 judg-
ment. It contends that Cramer has no standing to chal-
lenge 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.
Il. Analvsis
A. Standing: Injury
This court is limited by Article III of the United States
Constitution to the resolution of “cases” and “controver-
sies.. 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 Su-
preme Court has always required that a plaintiff have
“standing” to challenge the validity of the action at issue.
Id.
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 con-
duct of the defendant.” Id. at 472 (quoting Gladstone,
Realtors v. Village 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
37a
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 com-
plete 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 com-
plete 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. 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 can-
not 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 re-
strictions 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
* Cramer attributes this economic harm to the higher cost of trans-
portation from his home to DFW as opposed to Love Field and to
the unavailability of through fares, which he asserts would be less
expensive than double tickets. See Cramer’s memorandum of points
and authorities in opposition to dismissal at 23.
tila
38a
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 con-
necting 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 “‘se-
riously 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 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 (5th 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, with-
out any firm basis, what Southwest would do in the ab-
sence of the Love Field Amendment. He has also
provided the Letter from America West. He fails to ad-
dress, 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.
> See Cramer's memorandum of points and authorities in opposition
to dismissal at 22, 23, 25.
39a
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.
III. 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 judg-
ment 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
APPENDIX E
STATUTORY PROVISIONS INVOLVED
Section 29 of the International Air Transportation Com-
petition Act of 1975, Pub.L. No. 96-192, 94 Stat. 35
(1980).
Sec. 29. (a) Except as provided in sub-
section (c), notwithstanding any other pro-
vision 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 trans-
portation 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
(40a)
4la
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, ex-
cept that a person providing 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 pro-
vide 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 sub-
section shall be construed to give authority
not otherwise provided by law to the Sec-
retary of Transportation, the Civil Aero-
nautics 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.
APPENDIX F
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 re-
quested 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 comments followed
' The question of proper interpretation of the Love Field Amend-
ment 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 85-6-79 (June 24, 1985).
We did, however, suggest that the issue should be resolved in
another context. Id.
(42a)
43a
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 De-
partment's Office of Aviation Enforcement and Proceed-
ings 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 inter-
lines elsewhere on its system; and whether the Amend-
ment 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 gen-
eral public. In addition to comments concerning statutory
interpretation, several parties raised related questions
about marketing of Love Field services in a manner con-
sistent with provisions of the Amendment. We have con-
sidered 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 Aer-
onautics Board, the pieadings 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 be-
? The DFW Parties are the City of Dallas, Texas, the City of Fort
Worth, Texas, and the Dallas—Fort Worth International Airport
Board.
44a
tween Love Field and Houston, Texas, does not violate
the Love Field Amendment; 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 pas-
sengers continuing on a different aircraft and flight be-
yond an authorized destination from Love Field; 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 beyond
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 in-
terstate air service.
BACKGROUND
Since the completion of Dallas/Ft. Worth Regional Air-
port (DFW), which resolved a long-standing rivalry be-
tween 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 Par-
ties, in fact, previously asked the CAB to prohibit in-
terstate 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 vears
immediately following completion of the regional airport
was that interstate operations at Love Field would dam-
age 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
45a
Federal government's regulatory oversight of air trans-
portation. 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 Representa-
tives 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 Dereg-
ulation Act also includes provisions, known as the Au-
tomatic Market Entry (AME) program, that allowed
_ carriers to enter certain markets prior to 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 Air-
lines could provide interstate service from Love Field,
notwithstanding section 102(a)(6). Order 79-9-192 (Sep-
tember 29, 1979). -
Congress subsequently addressed the dispute respect-
ing service at Love Field in an amendment to the In-
ternational Air Transportation Competition Act (IATCA).
Congressman Jim Wright initially introduced an amend-
ment to IATCA, passed by the House, that effectively
prohibited all interstate air service at Love Field. How-
ever, the Senate version of IATCA contained no similar
provision. The Conference Committee adopted a com-
promise 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 au-
thorizing interstate service (other than limited charter and
commuter flights) to Love Field, except in accordance
46a
with remaining provisions of the Amendment. Subsection
(b) prohibits interstate scheduled service at Love Field,
except in accordance with other provisions of the Amend-
ment, 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 permis-
sible service as follows:
(c) Subsections (a) and (b) shall not apply with respect
to, and it is found consistent with the public conven-
ience and necessity to authorize, transportation of in-
dividuals, 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 oth-
erwise provided by law to the Secretary of Transpor-
tation, 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 clearly 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 pro-
hibition 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
47a
Field, or whether it should be construed merely to pro-
hibit 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 pro-
hibit interlining only in connection with Love Field serv-
ice. 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 in-
augurate 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.‘
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 80-8-18] (August 29, 1980).5 The DFW Parties
* TI was subsequently merged into Continental after its parent, Texas
Air Corporation, acquired Continental.
* 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).
* In addition, the CAB found that the Amendment's restrictions,
while statutory and clearly applicable without further regulatory ac-
tion, should be embodied in certificates authorizing such service, as
intended by Congress (Conference Report at 25). Order at 6.
48a
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 discon-
tinued 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 TI 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 pro-
viding service between Love Field and Houston.
OPERATIONS BY AN AIR CARRIER
WITH INTERLINE SERVICE
The Department interprets the Amendment as not pro-
hibiting 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, unless the literal word-
ing of the statute would lead to ‘unreasonable’ or ‘incon-
gruous 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
49a
offering for sale transportation to a point outside the av-
thorized 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 to-
gether (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 Skisments 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 restric-
tion, 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
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) univer-
sally, while applying (c)(2) only in connection with op-
erations 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 inter-
pretation of (c)(1) would require a reading of (c)(2) pro-
hibiting an air carrier providing service at Love from
providing any service outside Texas and the four adjacent
50a
states, even operations unconnected with Love Field
service. Id.6 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 states that carriers’ usual ticketing,
scheduling, and ratemaking practices would not be oth-
erwise 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 sup-
ported by a customary understanding of English gram-
mar. 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 unreason-
able and incongruous results, as noted above.
* While this outcome might be acceptable to the DFW Parties,
Southwest would probably object.
Sla
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 interpre-
same type of error they accuse the Board of having made.
Strained modification of language is not necessary to un-
derstand the plain meaning of subsection (c); subclauses
(1) and (2) 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 read-
ing 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 leg-
islative 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 Con-
ference Report at 24. These parties discount colloquy and
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 case only where regional airport authorities and
plans supported the use of such satellite airports. They
52a
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 inter-
state service at Love. The House adopted this amend-
ment, 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 in-
tended this provision to be very restrictive.
In our view, the legislative history, properly read, sup-
ports a less restrictive interpretation of the interline pro-
vision. 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 Re-
port at 24. In addition, Congress clearly knew the extent
of interlining practices among air carriers, since the Air-
line Deregulation Act and IATCA itself (specifically sec-
tions 11, 14 and 15) contain provisions involving
agreements and fares;’? and the Report is clear that usual
ticketing, scheduling, and ratemaking practices would not
be otherwise affected, beyond the specific Love Field
restrictions. Conference Report at 26.
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 mar-
ket forces to protect the public interest.
53a
The Conference Report continues: ‘Subsection c per-
mits turnarous service between Love F ield 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 his-
tory 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 sersng Love Field, the paragraph, in fact,
is merely a repetition of the words of the Love Field
Amendment: The Conference Committee more fully ex-
plained the meaning of that language in the next para-
graph—an explanatory paragraph the DFW Parties and
Southwest have apparently ignored. That paragraph be-
gins: ‘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 mem-
54a
ber of the Conference Committee, and each was the {.vor
manager of the bill reported out of the Conference Com-
mittee. 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. Colo-
rado 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 Com-
mittee 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 sec-
tion 29(c)(1), against an air carrier providing through serv-
ice 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). 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 word-
ing of the Amendment and the legislative history, in-
cluding tle Conference Report and relevant statements
aca
oe me
00a
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 serv-
ices elsewhere on its system. THIS conclusion is supported
by the comments of various parties, including the Justice
Department, American West, and Air Midwest. The ar-
guments of the DFW parties and Southwest to the con-
trary are not persuasive. F urther, since we find that
Continental may serve Love Field consistent with re-
strictions of the Amendment, we have determined that
it is not necessary to address Continental’s additional
argument that the amendment may violate the equal pro-
tection 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 car-
riers 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 compet-
itively 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 re-
garding marketing problems faced by carriers serving
Love Field. The statements attaclfed 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 ticket-
ing) at Love Field, one for service from Love Field 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
56a
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 re-
stricting 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 carrier from operating flights from
a destination point served from Love Field to a point
outside the Love Field service area. Id. 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 coritexts, the terms ‘offer’ and
‘hold out’ can be used interchangeably. United States v.
Contract Steel Carriers, 350 U.S. 409 (1956); Cf. Gra-
jewski v. 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.‘
® In the case of connecting flight service, the amount of the fare
57a
Through service 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 to forego
the service conveniences associated with through tick-
eting. 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. In-
terstate_and Intrastate Fares in California Markets. 7]
CAB 23 (1976).
The language of the Amendment makes clear that a
carrier cannot advertise, promote, or otherwise affirma-
tively 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 trans-
portation. Frissell v. Nichols, 94 Fla. 403, 114 So. 431,
433 (1927); Cf. Daitom, Inc. v. Pennwalt Co oration 74]
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 pro-
posal to buy such transportation from the customer, al-
though the carrier’s acceptance results in a contract.
Congress prohibited carriers from ‘offering for sale
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.
58a
. . . transportation to or from . . . any point which is
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 serv-
ice, 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 double-ticketed service is avail-
able, who demand such tickets, and who accept the in-
convenience of that service. Thus, to prohibit double
ticketing or the sale of a carriers most convenient flight
from a destination in the Love Field authorized service
area to a beyond point exceeds what is necessary to pro-
hibit 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 reserva-
tions systems. These systems were used at 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.
59a
Again, the answer is no. Unsolicited information fur-
nished 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 contem-
plated 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
This text is long and has been trimmed here. Open the source document for the complete record.
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.