546 F.2d 84 (5th Cir. 1977), 75-2539, Southwest Airlines Co. v. Texas Intern. Airlines, Inc.

Docket Nº:75-2539.
Citation:546 F.2d 84
Party Name:SOUTHWEST AIRLINES COMPANY, Plaintiff-Appellee, v. TEXAS INTERNATIONAL AIRLINES, INC., et al., Defendants-Appellants, v. TEXAS AERONAUTICS COMMISSION, Intervenor-Appellee.
Case Date:January 28, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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546 F.2d 84 (5th Cir. 1977)



TEXAS INTERNATIONAL AIRLINES, INC., et al., Defendants-Appellants,



No. 75-2539.

United States Court of Appeals, Fifth Circuit

January 28, 1977

Rehearing and Rehearing En Banc Denied March 17, 1977.

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[Copyrighted Material Omitted]

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Sam Coats, Houston, Tex., George W. Bramblett, Jr., Dallas, Tex., for Texas Intern.

James W. Wilson, Joe M. Kilgore, Austin, Tex., for Continental, and others.

G. Edward Cotter, Sr., Gen. Counsel, Continental Airlines, Inc., Los Angeles, Cal., for Continental Airlines, Inc.

Eugene Jericho, Dallas, Tex., Robert S. Harkey, Law Dept., Delta Airlines, Inc., Atlanta, Ga., for Delta, and others.

Jerry Prestridge, Donald S. Thomas, Austin, Tex., for Delta.

R. A. Lempert, H. Wayne Wile, Asst. Gens. Counsel, New York City, for American Airlines, Inc.

W. Glen Harlan, Eastern Airlines, Inc., New York City, for Eastern Airlines, Inc.

S. G. Johndroe, Jr., City Atty., Dept. of Law, Ft. Worth, Tex., for Cty. of Ft. Worth.

W. B. West, III, Wm. F. Carroll, Dallas, Tex., for Braniff Airways, Inc.

John L. Hauer, Clarice M. Davis, W. Michael Byrd, Jr., Dallas, Tex., for Southwest Airlines.

Herbert D. Kelleher, Gary A. Barron, San Antonio, Tex., J. David Hughes, Asst. Atty. Gen., Austin, Tex., for Tex. Aeronautics Comm.

N. Alex Bickley, City Atty., Lee E. Holt, Dallas, Tex., for City of Dallas.

Charles C. Wells, Dallas-Ft. Worth Regional Airport Bd., C. Merrill Bierfeld, Dallas, Tex., for Dallas-Ft. Worth Regional Airport Bd.

Appeals from the United States District Court for the Northern District of Texas.

Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS, [*] District Judge.

WISDOM, Circuit Judge:

Southwest Airlines Co. has returned to the federal courts for the second time in

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two years to preserve a 1973 judgment in a federal district court. The recurring litigation concerns Southwest's right to continue its air passenger services at Love Field in Dallas, Texas, and to avoid a forced move to the new Dallas-Fort Worth Regional Airport. The district court granted Southwest a preliminary injunction against relitigation in state court of the issues decided in 1973. We affirm.


The complicated procedural history, recounted in three previous opinions, 1 deserves brief repetition. The dispute began with a Civil Aeronautics Board order in 1964, requiring the Cities of Dallas and Fort Worth to designate a single airport for CAB-approved service in their region. The cities agreed to construct a new airport midway between them. To carry out the plan, they adopted the 1968 Regional Airport Concurrent Bond Ordinance. Besides authorizing the issuance of revenue bonds, the ordinance provided for a phase-out of commercial passenger air service at Love Field. 2 In 1970 eight CAB-certified air lines, appellants in this case, executed letter agreements with the Dallas/Fort Worth Regional Airport Board agreeing to "move all of (their) certified Air Carrier Services serving the Dallas-Fort Worth area to the (new) airport . . . to the extent required under the terms of the 1968 Regional Airport Concurrent Bond Ordinance." 3

Southwest Airlines began its intrastate commercial air service from Love Field in 1971 under a certificate issued by the Texas Aeronautics Commission (TAC). 4 The certificate authorized service from any airport in the area. On November 12, 1971, however, the TAC ordered all certified airlines not to change airports without written approval from the Commission. 5 After notifying the Regional Airport Board in 1971 of its intention to remain at Love Field, Southwest petitioned the Board for a waiver of the 1968 ordinance. Instead of determining whether the ordinance phase-out provisions applied to the airline, the Board concluded that the original CAB proceedings deprived the Board of jurisdiction.

The cities and the Airport Board then filed the first federal court suit 6 (Southwest I ), requesting a declaratory judgment of their right to exclude Southwest from Love Field. Southwest counterclaimed for a declaratory judgment of its right to remain

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at the field and for an injunction to enforce that right. The TAC intervened as a party-defendant and adopted Southwest's position. On both federal and state law grounds, 7 the district court declared that the cities and the Board could "not lawfully exclude the defendant, Southwest Airlines Co., from the use of Love Field, Dallas, Texas, and its airport facilities so long as Love Field remains open as an airport." City of Dallas v. Southwest Airlines Co., N.D.Tex.1974, 371 F.Supp. 1015, 1035. This Court affirmed the holding, but only on the state law grounds. City of Dallas v. Southwest Airlines Co., 5 Cir. 1974, 494 F.2d 773, 776-77. 8

Dallas responded to the district court's judgment by passing a criminal ordinance that levied a two-hundred-dollar fine for each takeoff or landing at Love Field by an airplane of a certified airline. Southwest then brought another suit in federal court (Southwest II ) to enjoin enforcement of that ordinance. Braniff intervened as party-plaintiff. Southwest II was then consolidated with yet another action brought by Delta and American against Braniff and the cities over violations of the 1970 Letter Agreements. 9 After Southwest moved for summary judgment, however, the district court severed the ordinance dispute from the case and enjoined Dallas from enforcing the ordinance against either Southwest or Braniff. 10 The remaining parties then voluntarily dismissed their respective causes of action and refiled them in the state court case that is the object of this suit (Austin ). 11

The pleadings in Austin raised questions identical with those decided in Southwest I. After recounting Southwest's refusal to leave Love Field, Texas International expressed its primary concern that Southwest's continued service at Love Field would put Texas International at a competitive disadvantage. Consequently, the plaintiff alleged:

A justiciable controversy exists as to the meaning and effect of Southwest's TAC certificate of convenience and necessity and the TAC Minute Order No. 22. The TAC and Southwest contend that under the Texas Aeronautics Act and the Texas Municipal Airports Act (Articles 45c and 45d (sic., 46c and 46d) Vernon's Texas Civil Statutes), the TAC has the statutory authority to adopt orders regulating and controlling the City of Dallas

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in the operation of Love Field so as to prevent Dallas from closing Love Field to TAC certificated service without the approval of the TAC and that Southwest's certificate of convenience and necessity and TAC Minute Order No. 22 prohibiting TAC certificated air carriers from changing airports without TAC approval constitute regulatory orders with this effect. The United States District Court for the Northern District of Texas, Dallas Division, and the United States Court of Appeals for the Fifth Circuit have upheld this interpretation of the Texas statutes in an action to which none of the signatory airlines is a party. The judgment in the said action is not final, but in any event this interpretation of the Texas statutes is not binding of the courts of Texas. Texas International denies that Southwest's certificate and TAC Minute Order No. 22 have this meaning or effect, but contends that such regulatory orders are void for lack of statutory authority. Alternatively, Texas International contends that such TAC Minute Order is void for lack of notice and hearing,

An attorney for Continental then argued orally before the state court:

This is (not) an effort to undermine the federal decision. . . . This is a frontal attack on it. The word undermined implies something covert about it. We come in with flags flying. 12

The federal district court has preliminarily enjoined this "frontal attack", thereby precluding the CAB airlines, the cities, and the airport board:

from relitigating in state court . . . or in any other court action the validity, effect or enforceability of the 1968 Regional Airport Concurrent Bond Ordinance of the Cities of Dallas and Fort Worth insofar as it may affect the right of plaintiff Southwest Airlines Co. to the continued use of and access to Love Field, so long as Love Field remains open. . . . 13

Southwest's right of access to Love Field arises from the declaratory judgment in Southwest I, a suit in which the CAB airlines were not parties. But the district court found that Delta, American and Continental had filed amicus briefs with this Court in Southwest I. Several of the same attorneys for those parties appeared before the district court in Southwest II and before the Texas court in Austin. 14 Lawyers for Texas International and Braniff also participated in Southwest II, and attorneys for the other CAB lines apparently observed those proceedings. 15 We now face the question whether the judgment in Southwest I can support the preliminary injunction against not only the cites and the airport board, the plaintiffs in Southwest I, but also the eight CAB carriers.


The appellants challenge the jurisdiction of the district court by arguing that none of the statutory bases claimed by Southwest should apply. They correctly assert that no diversity of parties exists and that the Anti-injunction Act, 28 U.S.C. § 2283, does not establish an independent basis of jurisdiction. Tyler v. Russell, 10 Cir. 1969, 410 F.2d 490, 491; Baines v. City of Danville, 4 Cir. 1964, 337 F.2d 579, 593; aff'd, 1966, 384 U.S. 890, 86 S.Ct. 1915, 16 L.Ed.2d 966, rehearing denied, 385 U.S. 890, 87 S.Ct. 12...

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