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July 24, 1969


The opinion of the court was delivered by: Napoli, District Judge.


The plaintiffs, Mortimer and Hoffman, have brought this action against Delta Air Lines for being barred from the defendant's oversold flight for which they had tickets and confirmed reservations. They seek an injunction as well as compensatory and punitive damages. The defendant has moved to dismiss the complaint for lack of jurisdiction.

The complaint alleges that the action arises under section 404(b) of the Federal Aviation Act, 49 U.S.C. § 1374(b). This section provides as follows:

    (b) No air carrier or foreign air carrier shall
  make, give, or cause any undue or unreasonable
  preference or advantage to any particular
  person * * * in air transportation in any respect
  whatsoever or subject any particular person * * * to
  any unjust discrimination or any undue or
  unreasonable prejudice or disadvantage in any respect

The statute does not specifically authorize a civil action as a remedy for violations of its provisions and it is the defendant's position that none can be implied.

Jurisdiction exists here by reason of 28 U.S.C. § 1337. That section grants original jurisdiction to the district courts "of any civil action or proceeding arising under any Act of Congress regulating commerce * * *." There is no minimum jurisdictional amount. Peyton v. Railway Express Agency, 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525 (1942); Bloomfield S.S. Co. v. Sabine Pilots Ass'n, 262 F.2d 345 (5th Cir. 1959); Lyon v. Atlantic Coast Line R.R., 224 F. Supp. 1014 (D.C.S.C. 1964). Since the Federal Aviation Act is a Congressional Act regulating commerce there can be no doubt that 28 U.S.C. § 1337 provides a proper jurisdictional basis for this action. Fitzgerald v. Pan American World Airways, 229 F.2d 499, 502 n. 4, 5 (2d Cir. 1956); East Haven v. Eastern Airlines, Inc., 282 F. Supp. 507, 513 (D.C.Conn. 1968); Killian v. Frontier Airlines, Inc., 150 F. Supp. 17, 18 (D.C.Wyo. 1957).

The implication of a civil remedy from the provisions of this Act has been characterized, and properly so, as a question regarding the statement of a claim for which relief can be granted. Yelinek v. Worley, 284 F. Supp. 679 (E.D.Va. 1968); Moungey v. Brandt, 250 F. Supp. 445 (W.D.Wis. 1966). Both Yelinek and Moungey were cases in which the amount in controversy exceeded the jurisdictional requirements of 28 U.S.C. § 1331(a) and consequently federal question jurisdiction existed in that the controversy arose under the laws of the United States within the meaning of that section. Having established an independent jurisdictional basis here also, the question becomes whether a civil remedy is available for an alleged breach of a provision of the Federal Aviation Act. It is the opinion of this Court that such a remedy does exist.

The implication of a remedy from a regulatory statute is well known to the law. Steele v. Louisville & Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, Ocean Lodge No. 76, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir. 1947); Roosevelt Field Inc. v. Town of North Hempstead, 84 F. Supp. 456 (E.D.N.Y. 1949); Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761 (N.D.Ohio 1929). Perhaps the most prolific source of such precedent is under the securities legislation. However, whether relief should be granted in a particular case requires the examination of a number of factors, not the least of which are the intent of Congress, the availability of alternative remedies, state or administrative, and the desirability of uniform enforcement.

The legislative history of this Act is of little assistance in determining whether a private civil remedy was contemplated for the enforcement of its provisions. The statute itself states that "[t]here is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States," 49 U.S.C. § 1304, and provides criminal penalties for those who violate many of its provisions including the one in question. 49 U.S.C. § 1472. It is further stated that the "promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages * * *" are matters within the public interest. 49 U.S.C. § 1302(c).

At least two cases have held that a private civil remedy can be implied from this section of the Federal Aviation Act. Fitzgerald v. Pan American World Airways, 229 F.2d 499 (2d Cir. 1956); Wills v. Trans World Airlines, Inc., 200 F. Supp. 360 (S.D.Cal. 1961). In Fitzgerald it was held that a complaint alleging racial discrimination on the part of the defendant airline stated a claim for which relief could be granted under 49 U.S.C. § 1374. There, at page 501, the Second Circuit reiterated its statement in Reitmeister v. Reitmeister, 162 F.2d 691, 694 (2d Cir. 1947):

  Although the Act does not expressly create any civil
  liability, we can see no reason why the situation is
  not within the doctrine which, in the absence of
  contrary implications, construes a criminal statute,
  enacted for the protection of a specified class, as
  creating a civil right in members of the class,
  although the only express sanctions are criminal.
  (Citations omitted.)

The Wills case was substantially the same as the present case. There the plaintiff, holding confirmed second class reservations, was barred from the flight in order to accommodate an excess of first class passengers. The court allowed recovery of compensatory and punitive damages.

In both Fitzgerald and Wills the basis for allowing recovery was that the Act established a public interest and right to non-discriminatory and fair treatment by air carriers and that in the absence of a civil remedy past injuries caused by violation of that right would go uncompensated. Besides criminal sanctions, the Act provides for the entry of appropriate orders by the Civil Aeronautics Board, after notice and hearings in any investigation instituted upon complaint, to compel compliance with the provisions of the statute. 49 U.S.C. § 1482. The administrative remedy thus being prospective, it was judged appropriate and necessary to imply a private civil action, remedial in nature. The court in Wills stated at page 364:

    Without judicial intervention to redress past
  violations of the statute, the rights of air
  passengers, as declared in the Act, to travel without
  undue preference or unjust discrimination would be
  robbed of vitality and the purposes of the Act
  substantially thwarted. It cannot be presumed,
  nonetheless, that the Congress intended no relief for
  past infringement of the Federal rights of air
  passengers there declared. (Citations omitted.)
  Indeed, "where federally protected rights have been
  invaded, it has been the rule from the beginning that
  courts will be ...

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