# Petition for Writ of Certiorari — Cramer v. Pena > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2263%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 509 U.S. 904 ## Text — 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2263%3A1. Public record. Not legal advice.