Commuter Transp. Systems, Inc. v. Hillsborough County Aviation Authority
| Decision Date | 15 October 1986 |
| Docket Number | No. 86-3226,86-3226 |
| Citation | 801 F.2d 1286 |
| Parties | , 1986-2 Trade Cases 67,320 COMMUTER TRANSPORTATION SYSTEMS, INC., Plaintiff-Appellee, v. HILLSBOROUGH COUNTY AVIATION AUTHORITY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Lynn H. Cole, Allen, Dell, Frank & Trinkle, Tampa, Fla., Jeffrey H. Howard, Davis, Graham & Stubbs, Washington, D.C., for defendant-appellant.
Joel R. Tew, Perry Y. Newson, Clearwater, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and ATKINS *, Senior District Judge.
Hillsborough County Aviation Authority (The Authority) appeals from a denial of its motion for a summary judgment on the grounds that it is immune from antitrust attack under the state action doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) and immune from damage claims under the Local Government Antitrust Act of 1984 (15 U.S.C. Sec. 34-36).
The Authority also urges that the denial of the summary judgment is immediately appealable as a "collateral order" under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
We find that The Authority is immune from antitrust scrutiny. Having so held, we do not reach the claimed immunity from damage claims. The appellee has failed to produce any facts or evidence to show that any unauthorized conspiracy existed which would remove The Authority's actions from state action immunity. We also hold that The Authority has satisfied the Cohen test and is immune from liability and trial under Mitchell; therefore, the summary judgment is immediately appealable as a collateral order. We reverse and remand to the district court for entry of judgment for Hillsborough County Aviation Authority.
The Authority was created by the Florida legislature to develop and administer public airports in the Tampa, Florida region. The Authority is a government arm of the State; it has the power of eminent domain and the authority to limit and prohibit competition which is destructive of the promotion of commerce and tourism.
In 1985, the subject airport served over 8 million passengers and ranked third largest in Florida and twenty fifth largest in the United States. The airport has limited space available for passengers to board ground transportation vehicles. Traffic congestion at curbside can be a serious problem. During peak hours, crowding reaches critical proportions. Absent a contractual commitment to service odd hour flights, ground transportation may be totally unavailable to passengers traveling to remote areas. For these reasons, The Authority has regulated the number of limousine operators with whom it will contract for the pickup of unreserved passengers. However, all limousine operators, including the appellee, are permitted to pick up and drop off pre-reserved passengers.
Prior to July 1, 1980, state law prohibited the operation of limousine and other ground transportation services without a certificate of public convenience and necessity from the State Public Service Commission. Following the expiration of the Public Service Commission's jurisdiction, The Authority decided to maintain the status quo in limousine service until it could be determined what governmental agency would assert regulatory jurisdiction over airport limousines and, if not, what ground transportation policy The Authority should adopt. At that time, there were outstanding contracts between The Authority and six limousine operators. Shortly thereafter, Commuter Transportation Systems, Inc. (Commuter) sought a contract from The Authority for the pickup of unreserved passengers at the airport for transport to Pinellas County. Commuter was allowed without a contract to pick up pre-reserved passengers at the airport.
Meanwhile, The Authority hired an outside consultant, Peat, Marwick & Mitchell (Peat, Marwick) which recommended that The Authority request competitive bids for the exclusion rights to provide airport limousine service. Peat, Warwick also recommended that The Authority should continue the status quo in limousine contracting until construction of the new garage space, begun in May 1981, was completed. The construction temporarily reduced the available parking and curbside space.
Following the decision to maintain the status quo, Commuter brought this action in February, 1981, alleging that The Authority conspired with its competitors to exclude it from the pickup of unreserved passengers and in refusing to grant it a contract in violation of Sections 1 and 2 of the Sherman Act and the corresponding state antitrust law.
After completion of the new garage space and on the recommendation of Peak, Warwick, The Authority in November, 1983, resolved to seek competitive bids to provide unreserved limousine service at the airport and require all pre-reserved limousine operators to obtain a permit. Notice was given to Commuter and all other limousine operators. The Authority met in December, 1983 to explain its policy and to invite all operators to submit bids. Notice of invitation to bid was published on January 10 and January 17, 1984. Commuter did not respond to any notices nor did it submit a bid.
After four years and nine months of discovery, including extensive interrogatories, production of thousands of pages of The Authority's records, and seventeen depositions, The Authority moved, in November, 1985 for a summary judgment. No counter-affidavits, sworn testimony, or document were filed with Commuter's opposing brief contravening The Authority's support for its motion.
The trial judge stated "The factual disputes in this case preclude summary judgment." The district court subsequently denied a motion for certification under 28 U.S.C. Sec. 1292, Motions to Reconsider, and The Authority's Renewed Motion for a Summary Judgment.
On April 21, 1986, the court denied The Authority's Petition for a Writ of Mandamus, stayed proceedings below, and scheduled this case for expedited appeal.
The first issue the court must decide is whether the district court's denial of The Authority's Motion for Summary Judgment is immediately appealable as a collateral order.
District court orders constitute "final decisions," appealable under 28 U.S.C. Sec. 1291 as "collateral order" if they (a) are "effectively unreviewable" on appeal after trial; (b) conclusively determine the disputed question; and (c) resolve an important issue completely separate from the merits of the action. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949). See also, Harris v. DeVeaux, 780 F.2d 911 (11th Cir.1986).
In Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court found that denial of a summary judgment on grounds of qualified immunity is immediately appealable. The immunity claimed in Mitchell is comparable to the immunity claimed here for purposes of applying the Cohen doctrine.
In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the court found that denial of qualified immunity is immediately appealable because of social costs.
Absent state immunity local officials will avoid decisions involving antitrust laws which would expose such officials to costly litigation and conclusory allegations. See P. Areeda, Antitrust Law p 212.3b at p. 57 (1982 Supp.). The purpose of the state action doctrine is to avoid needless waste of public time and money.
The Authority claims immunity under Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), which holds that immunity protects it from antitrust claims on the principles of federalism. Under the teaching of Parker, official conduct is immune from federal antitrust scrutiny if the state legislature "contemplated the kind of action complained of." The Authority was authorized by the state to negotiate contracts with businesses as it may deem necessary for the development and expansion of the airport and to grant concessions, upon such terms and conditions as it shall deem proper. It is clear that The Authority's actions pertaining to limousine service was contemplated by the state legislature and under Parker, The Authority is immunized.
Harlow and Parker each provide "immunity from suit rather than a mere defense to liability." 105 S.Ct. at 2816 (emphasis in original). Thus, the district court's decision (denying immunity) is effectively unreviewable on appeal from a final judgment.
The order denying summary judgment based on immunity conclusively determines the disputed question. The reasoning of the court in Mitchell is dispositive. There the court held the issues of immunity are conclusive so far as the summary judgment is concerned. 105 S.Ct. at 2816. The court also determined that such a decision is "conclusive" even if it is based on the existence of potential fact issues. The court's denial of a summary judgment finally and conclusively determines the defendant's claim of right not to stand trial on the plaintiff's allegations, and because "[t]here are simply no further steps that can be taken in the district court to avoid the trial the defendant maintains is barred." Mitchell, 105 S.Ct. at 2816. The court found Cohen's "consummated decision" requirement satisfied in such a case.
In the case at bar The Authority's right not to stand trial because of state action and statutory immunity has been conclusively determined by the order from which this appeal is...
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