Diefenthal v. C. A. B.

• Decision Date: 06 August 1982
• Docket Number: Nos. 80-3259,80-3761,s. 80-3259
• Citation: 681 F.2d 1039
• Parties: Stanley M. DIEFENTHAL and Elka F. Diefenthal, Plaintiffs-Appellants, v. CIVIL AERONAUTICS BOARD and Eastern Airlines, Inc., Defendants-Appellees. Stanley M. DIEFENTHAL and Elka F. Diefenthal, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1039

681 F.2d 1039

Stanley M. DIEFENTHAL and Elka F. Diefenthal, Plaintiffs-Appellants, v. CIVIL AERONAUTICS BOARD and Eastern Airlines, Inc.,

Defendants-Appellees.

Stanley M. DIEFENTHAL and Elka F. Diefenthal, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent.

Nos. 80-3259, 80-3761.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1982.

William G. Tabb, III, New Orleans, La., for plaintiffs-appellants and petitioners.

Michaelle F. Pitard, Asst. U. S. Atty., New Orleans, La., Mark Frisbie, Glen M. Bendixsen, C. A. B., Washington, D. C., for C. A. B. in No. 80-3259.

McGlinchey, Stafford & Mintz, William V. Dalferes, Jr., Dermot S. McGlinchey, Timothy F. Burr, New Orleans, La., for Eastern Airlines.

Barbara Thorson, Mark Frisbie, Washington, D. C., for C. A. B. in No. 80-3761.

Appeal from the United States District Court for the Eastern District of Louisiana.

Petition for Review of an Order of The Civil Aeronautics Board.

Before CLARK, Chief Judge, GEE and GARWOOD, Circuit Judges.

CLARK, Chief Judge:

Stanley and Elka Diefenthal appeal from the district court's order dismissing their claims against the Civil Aeronautics Board (CAB) and Eastern Airlines. They also petition for review of a CAB order finding that regulating smoking was within the scope of its statutory authorization. We affirm.

I

The Diefenthals purchased first class tickets aboard a flight from New Orleans to Philadelphia on Eastern Airlines. They requested seats in the smoking section and confirmed that their request was granted prior to departure. After they boarded the flight, the Diefenthals were told that the smoking section in first class was filled and that they would have to sit in a no-smoking area if they wished to fly first class. The Diefenthals alleged that in informing them that they could not smoke the flight attendant treated them "brusquely," causing them extreme embarrassment, humiliation and emotional distress.

This relatively trivial incident has given rise to a spate of litigation. The Diefenthals brought suit in district court to enjoin the CAB from enforcing its regulation requiring that no-smoking areas be provided on aircraft, see 14 C.F.R. § 252 (1981), on the ground that the CAB lacked statutory authority under the Federal Aviation Act (the Act), 49 U.S.C. §§ 1301-1551, ¹ to regulate this area. The Diefenthals also sought an injunction to prevent Eastern from implementing section 252 on the ground that the regulation was invalid. Alternatively, if the regulation were valid, the Diefenthals alleged that Eastern's refusal to allow them to smoke contravened its own manual and sought an injunction requiring compliance with the manual. Finally, the Diefenthals alleged that Eastern had breached its contract with them by denying them first class seats in a smoking area and that it had tortiously embarrassed and humiliated them and deprived them of their right to smoke on board the plane. Eastern moved to dismiss the complaint for failure to state a claim on which relief could be granted.

After holding a hearing on Eastern's motion, the district court rejected the Diefenthals' request for injunctive relief against Eastern. It found that there was neither an express nor an implied private right of action under the Act. Alternatively, the court found that if there were a federal right of action, the Diefenthals were not entitled to injunctive relief since they had failed to allege any threat of irreparable injury.

The district court dismissed the Diefenthals' contract and tort claims for lack of diversity jurisdiction. With respect to the contract claim, the district court found that even though the parties were diverse, it could not "conceive by the wildest stretch of the imagination how there could be $10,000.00 damage on the basis of what (the Diefenthals) allege."

With respect to the tort claim, it was developed that the Diefenthals' claim was based solely on Eastern's duty to follow its manual. The Diefenthals argued that if Eastern had correctly followed the seating procedures outlined in its manual, they would have been able to smoke on board the flight. The district court dismissed this theory apparently on the ground that it turned implicitly on the existence of a private right of action. However, it allowed the Diefenthals to amend their complaint to allege that the actions of Easterns' employees had tortiously humiliated and embarrassed them. The court expressly cautioned the Diefenthals that the jurisdictional amount would again be in question. The court stated, "you ought to do something to satisfy me of that (the jurisdictional amount) from the very beginning, because its tough to conceive of the kind of damage you're talking about...."

The amended complaint alleged that an unknown flight attendant "maliciously, and intentionally treated plaintiffs in a manner calculated to cause plaintiffs serious embarrassment and humiliation." Eastern moved to dismiss the complaint for lack of subject matter jurisdiction. At a hearing on Eastern's motion to dismiss, the district court noted that the Diefenthals had not alleged any physical or emotional damage or loss of reputation. Although the Diefenthals never stated exactly what the flight attendant had said, the court found that it could not "conceive how being told, no matter how abruptly, that you cannot smoke before the few passengers that are in the first class cabin of an airplane can possibly, in the absence of some (physical or emotional) damage ... entitle (the Diefenthals) to $10,000.00."

With respect to the Diefenthals' claim that the CAB lacked authority to regulate smoking, the CAB moved to dismiss the claim for lack of jurisdiction. The CAB argued that section 1486 vests exclusive jurisdiction to review its orders and regulations in the courts of appeals. See 49 U.S.C. § 1486. Alternatively, it claimed that a party must seek review within 60 days after an order is issued, which the Diefenthals had failed to do. The CAB noted, however, that the Diefenthals could file a petition with it to eliminate its smoking regulation and then seek review of its order. The district court granted the CAB's motion and the Diefenthals then petitioned the CAB. They raised the same argument they had attempted to present to the district court, that in regulating smoking the CAB had exceeded its statutory authority.

The CAB considered the Diefenthals' request but reaffirmed its authority to regulate this area. The CAB noted that its regulation was based on two sections of the Federal Aviation Act: section 1374, which requires each carrier to provide "adequate service," and section 1324, which empowers the CAB to make such "rules and regulations ... as it shall deem necessary to carry out the provisions of ... this chapter." ² It rejected the argument that the "adequate service" provision only concerned the number of flights a carrier provided and noted that this section had also been construed to govern the type of service provided. See Capital Airlines v. CAB, 281 F.2d 48 (D.C.Cir.1960). Moreover, the same phrase had been upheld as the statutory basis for regulating smoking on board interstate buses. See National Association of Motor Bus Owners v. United States, 370 F.Supp. 408 (D.D.C.1974) (three judge district court). Finally, the CAB noted that the regulation, which had been in effect since 1973, had been left intact by the Airline Deregulation Act of 1978. The Diefenthals petitioned for review of the CAB's order ³ and consolidated their petition with their appeal from the district court's order. We turn first to the petition for review. ⁴

II

The Diefenthals do not claim that the CAB's decision to regulate smoking was arbitrary or that the procedure employed by the CAB was flawed. Instead, they argue that Congress did not authorize the CAB to regulate the kind or quality of service which a carrier provides. The question to be answered is thus "not what the Board thinks it should do but what Congress has said it can do." CAB v. Delta Airlines, 367 U.S. 316, 322, 81 S.Ct. 1611, 1617, 6 L.Ed.2d 869 (1961). Because of the recent deregulation of the airline industry, two issues are presented. First, did the CAB have authority to regulate smoking under the Federal Aviation Act of 1958. Second, if it had the authority, did the Airline Deregulation Act of 1978 undercut that authority.

When a party challenges an agency's determination that a regulation is necessary to carry out the provisions of its enabling statute, the scope of our review is limited. In Mourning v. Family Publications Service, 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the Court stated Where the empowering provision of a statute states simply that the agency may "make ... such rules and regulations as may be necessary to carry out the provisions of this Act," we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is "reasonably related to the purposes of the enabling legislation."

Id. at 369, 93 S.Ct. at 1660-61 (footnote and citations omitted). Even the absence of an express delegation of power to regulate a particular area is not fatal to the validity of a regulation so long as the regulation reasonably advances the purposes of the enabling statute. See American Trucking Associations v. United States, 344 U.S. 298, 309-12, 73 S.Ct. 307, 314-15, 97 L.Ed. 337 (1953). To have found otherwise would have defeated one of the reasons for which agencies were created. It was precisely because Congress could not be aware of the particular problems or needs that would develop in an area that it delegated authority to the agencies, within the broad confines of the statutory scheme, to deal with these problems as they arose. See id. at 309-10, 73 S.Ct. at 314.

In the case at bar, the CAB grounded its regulation in the language of the statute expressly requiring that each certified carrier provide "adequate service." ⁵ See 49 U.S.C. §...