South African Airways v. Dole, 86-1620

• Decision Date: 24 April 1987
• Docket Number: No. 86-1620,86-1620
• Citation: 817 F.2d 119
• Parties: , 55 USLW 2605 SOUTH AFRICAN AIRWAYS, Petitioner, v. Elizabeth H. DOLE, Secretary, U.S. Department of Transportation, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 119

817 F.2d 119

260 U.S.App.D.C. 12, 55 USLW 2605

SOUTH AFRICAN AIRWAYS, Petitioner, v. Elizabeth H. DOLE, Secretary, U.S. Department of Transportation, Respondent.

No. 86-1620.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 12, 1987.

Decided April 24, 1987.

Thomas J. Whalen, with whom Moffett B. Roller, Robert P. Silverberg, and Quentin Crommelin, Jr., Washington, D.C., were on brief, for petitioner.

Kenneth N. Weinstein, Deputy Asst. Gen. Counsel for Litigation, U.S. Dept. of Transp., with whom Thomas L. Ray, Senior Trial Atty., U.S. Dept. of Transp. and Robert B. Nicholson and David Seidman, Attys., U.S. Dept. of Justice, Washington, D.C., were on brief, for respondent.

William L. Robinson, Washington, D.C., and Goler T. Butcher were on brief for amici curiae Senator Edward Kennedy, et al., urging affirmance.

Before EDWARDS, SILBERMAN and BUCKLEY, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Petitioner South African Airways ("SAA") asks this court to set aside an order issued on October 31, 1986 by the Secretary of Transportation revoking its permit to provide air service between the United States and South Africa. The order was issued pursuant to section 306(a) of the Comprehensive Anti-Apartheid Act of 1986, which directed the revocation of the right of any designee of the South African government to provide air service pursuant to the terms of an executive agreement between the United States and South Africa dated May 23, 1947 ("Agreement"). ¹

Petitioner challenges the Secretary of Transportation's order on the principal grounds that as the immediate revocation of its permit was neither allowed by the Agreement (which remains in effect at least until October 1987) nor required by the Anti-Apartheid Act, the order violates both a provision of the Federal Aviation Act directing the Secretary of Transportation to observe international agreements and Supreme Court precedent requiring that statutes and executive agreements be interpreted, where possible, so as to give effect to both.

We reject these arguments because we conclude that Congress intended the immediate suspension of the rights enjoyed by SAA pursuant to the Agreement. As Congress has authority to "regulate Commerce with foreign Nations" and to "make all Laws which shall be necessary" for the exercise of that authority, section 306(a) of the Act overrides any provision of the Agreement or of the Federal Aviation Act with which it may be inconsistent.

I. FACTUAL BACKGROUND

In October 1986, Congress enacted the Comprehensive Anti-Apartheid Act of 1986, Pub.L. No. 99-440, 100 Stat. 1086 ("Anti-Apartheid Act" or "Act"). Section 306(b)(1) of the Act directs the Secretary of State to "terminate the Agreement Between the Government of the United States of America and the Government of the Union of South Africa Relating to Air Services Between Their Respective Territories, signed May 23, 1947, in accordance with the provisions of that agreement." Article XI of the Agreement provides for its termination upon one year's notice given by either party. Agreement, 61 Stat. at 3061. The Agreement also specifies limited conditions under which permits issued pursuant to the Agreement may be revoked. Agreement, art. VI, 61 Stat. at 3059-60. Section 306(a)(2) of the Act, which was offered in the Senate as a floor amendment, provides:

Ten days after the enactment of this Act, the President shall direct the Secretary of Transportation to revoke the right of any air carrier designated by the Government of South Africa under the Agreement to provide service pursuant to the Agreement.

On October 10, 1986, the Secretary of State delivered the one-year termination notice to the South African Ambassador, and seventeen days later the President issued Executive Order 12,571 directing the Secretary of Transportation ("Secretary") to take the steps specified in section 306(a)(2) of the Act. Exec. Order No. 12,571, 51 Fed.Reg. 39,505 (1986). The Secretary thereupon issued Department of Transportation ("DOT") Final Order 86-11-29 ("Final Order") in which she initiated the steps required to effect an immediate revocation of South African Airways' permit. As required by section 801(a) of the Federal Aviation Act of 1958 ("Aviation Act"), 49 U.S.C. app. Sec. 1461(a) (1982), the Final Order was transmitted to the President for review, at which point he could have exercised his prerogative under that section to disapprove the Final Order on foreign policy or national security grounds. He declined to do so, and SAA's permit was accordingly revoked effective November 16, 1986.

SAA challenges the Secretary's action as not required by the Act, as in violation of the Agreement, and consequently, both in conflict with Supreme Court precedent and illegal under section 1102(a) of the Aviation Act, which provides:

In exercising and performing their powers and duties under this chapter, the [Civil Aeronautics] Board and the Secretary of Transportation shall do so consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country....

49 U.S.C. app. Sec. 1502(a) (1982).

In response, the Secretary challenges the statutory jurisdiction of this court to review the Final Order, questions the propriety of such a review under the "political question" doctrine, and asserts the correctness of her determination that section 306(a)(2) required her to terminate SAA's permit authority promptly without awaiting the expiration of the Agreement.

II. ANALYSIS

A. Jurisdiction

1. Statutory

This court has jurisdiction to review the Final Order under section 1006 of the Aviation Act, 49 U.S.C. app. Sec. 1486 (1982). Section 1006, as codified, provides:

Any order, affirmative or negative, issued by the Board or Secretary of Transportation under this chapter, except any order in respect of any foreign air carrier subject to the approval of the President as provided in section 1461 of this Appendix, shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia....

49 U.S.C. app. Sec. 1486(a) (1982).

The applicable language of section 1461, as amended by section 34 of the Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705, 1740 ("Deregulation Act"), in turn provides:

[R]evocation of ... any permit issuable to any foreign air carrier ... shall be presented to the President for review. The President shall have the right to disapprove any such [DOT] action concerning such ... permits solely upon the basis of foreign relations or national defense considerations which are within the President's jurisdiction, but not upon the basis of economic or carrier selection considerations.... Any such [DOT] action not disapproved ... shall take effect as action of the [DOT], not the President, and as such shall be subject to judicial review as provided in section 1486 of this Appendix.

49 U.S.C. app. Sec. 1461(a) (1982).

In the Deregulation Act, Congress amended section 1461(a) in such a way as to make clear its intention that decisions of the Civil Aeronautics Board (and now the Secretary of Transportation) are not to be subject to the affirmative approval of the President as they previously had been under section 1461 prior to its amendment. See H.R.Rep. No. 1211, 95th Cong., 2d Sess. 61 (1978) (showing both the original and amended versions of section 1461). Whereas the original text provided that "any permit issuable to any foreign air carrier ... shall be subject to the approval of the President," with no restriction on the President's discretion, the new scheme allocates a much narrower role to the President. See id. at 19. The President may still disapprove such decisions, but only "upon the basis of foreign relations or national defense considerations which are within the President's jurisdiction." 49 U.S.C. app. Sec. 1461(a) (1982) (as amended by the Deregulation Act).

Thus when the Secretary forwarded the Final Order to the White House, she was submitting it not for "the approval of the President as provided in section 1461," 49 U.S.C. app. Sec. 1486(a) (1982), but for his review and possible disapproval for foreign policy and/or national defense considerations. Consequently, as the Final Order was not "subject to the approval of the President as provided in section 1461," it is subject to review by this court. Furthermore, even if we were to equate "subject to approval" with "subject to disapproval," the order would still be reviewable by this court because section 1461(a) stipulates that if a DOT action is not disapproved, it "shall take effect as action of [DOT], not of the President, and as such shall be subject to judicial review as provided in section 1486 of this Appendix." 49 U.S.C. app. Sec. 1461(a) (1982).

2. Political Question

The Secretary reminds us that "matters 'vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.' " Holmes v. Laird, 459 F.2d 1211, 1215 (D.C.Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 518-19, 96 L.Ed. 586 (1952)). Nevertheless, the Supreme Court has also noted that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 707, 7 L.Ed.2d 663 (1962). "[T]he courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts." Japan Whaling Ass'n v. American...