Kappelmann v. Delta Air Lines, Inc.

Decision Date12 July 1976
Docket NumberNo. 75-1830,75-1830
Citation176 U.S.App.D.C. 163,539 F.2d 165
PartiesArthur C. KAPPELMANN et al., Appellants, v. DELTA AIR LINES, INC., a corporation, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Landon Gerald Dowdey, Washington, D. C., with whom Laurence Sarezky and Lois Goodman, Washington, D. C., were on the brief for appellants.

Robert Reed Gray, Washington, D. C., with whom John E. Gillick, Jr., Washington, D. C., was on the brief for appellee, Delta Air Lines, Inc.

Mary Elizabeth Medaglia, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Paul M. Tschirhart, Asst. U. S. Attys., Washington, D. C., were on the brief for Federal appellees.

Before LEVENTHAL and MacKINNON, Circuit Judges, and McMILLAN, * United States District Judge for the Western District of North Carolina.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

This case grows out of the possible exposure of appellant Arthur C. Kappelmann to radiation leaking from an improperly shielded container that was carried in the cargo section of a commercial airliner on which appellant traveled from Washington, D.C. to Atlanta, Georgia on April 5, 1974. 1 Although Mr. Kappelmann was apparently unaware of the radiation danger during the flight, he was contacted several days thereafter by Delta Air Lines' representatives, informed of the incident, and asked to consult a physician at Delta's expense. No allegation of any ill effects appears in the record, but appellant maintains that he is still under medical observation. 2 On November 18, 1974, Mr. Kappelmann and his wife 3 filed suit seeking damages against Delta and Value Engineering Co. (the shipper), and temporary and permanent injunctive relief against Delta. The suit also named the Department of Transportation, the Civil Aeronautics Board, and the Federal Aviation Administration (hereafter referred to collectively as the federal defendants) as parties defendant.

On July 8, 1975, the trial judge issued an order (1) dismissing the complaint against the federal defendants on the grounds that no relief was sought against them; (2) dismissing the injunctive relief counts of the complaint; and (3) denying plaintiffs' motion for partial summary injunctive judgment or, in the alternative, for a preliminary injunction. This appeal followed.

I.

The federal defendants in this case have moved to dismiss that portion of the appeal which seeks to reinstate the complaint against them, contending that the ruling of the trial judge was neither a "final decision" within the meaning of 28 U.S.C. § 1291 (1970), nor an appealable interlocutory order under any existing exception to the final judgment rule, and thus that this court has no jurisdiction to hear the appeal as to them. We agree, and grant the motion to dismiss as to these appellees.

As a general rule, an order of the district court may be appealed only if it is a (T)he court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates . . . the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the . . . parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating . . . the rights and liabilities of all the parties.

"final decision." 28 U.S.C. § 1291 (1970). A final decision is defined as "one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911, 916 (1945). Here, the litigation over damages continues, with only the number of parties having been reduced (and the injunctive relief aspects of the suit eliminated). In such a case involving multiple parties, Fed.R.Civ.P. 54(b) provides:

No such express determination and direction was made in this case, and hence an appeal premised on section 1291 must be dismissed. Turtle v. Institute for Resource Management, Inc., 154 U.S.App.D.C. 341, 342, 475 F.2d 925, 926 (1973); 6 J. Moore, Federal Practice PP 54.28(2), 54.34(2.-2) (rev. 2d ed. 1975).

The only exception to this rule which is possibly relevant on the facts now before us 4 is that provided by 28 U.S.C. § 1292(a)(1) (1970), which authorizes appeals from interlocutory orders of the district court "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." See generally 6 J. Moore, supra at P 54.30(2.-1). Since no injunctive relief was sought against the federal defendants, however, section 1292(a)(1) cannot provide this court with jurisdiction to hear this part of the appeal.

The federal defendants' motion to dismiss the appeal as to them is therefore granted.

II.

The remaining questions concern the district court's disposition of the requests for injunctive relief. Count 11(4) of the appellants' complaint requested

4) That this court grant temporary and permanent injunctive relief against defendant airline requiring it to give adequate warning of the presence of a significant amount of radioactive materials to (a) all prospective passengers who may be boarding airplanes operated as passenger flights by it and carrying a significant amount of radioactive materials; or, in the alternative (b) all prospective passengers who may be boarding airplanes operated as passenger flights by it and carrying a significant amount of radioactive materials, which passengers have been exposed previously to a significant amount of radiation.

(J.App. 10). The district court dismissed this request for relief chiefly on the ground that the doctrine of primary jurisdiction requires that resort first be made to the administrative agency for relief.

"The precise function of the doctrine of primary jurisdiction is to guide a court in determining whether the court should refrain In contrast to these traditional examples of the use of the doctrine of primary jurisdiction, the district court in the instant case held that the doctrine applied in a situation calling not for an adjudication but rather for legislative or rulemaking activity. Appellants here make no specific complaints about the activity or omissions of Delta Air Lines; instead, they appear to be seeking a broad form of relief which amounts to legislation by injunction, initially limited to one carrier but expected and intended to have sweeping effects on the entire industry. There is no immediate issue of fact or policy to be resolved here, only a demand for a "statement of general or particular applicability and future effect," 5 U.S.C. § 551(4) (1970) (emphasis added), which is more properly handled through a legislative-type procedure.

                from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court."  3 K. Davis, Administrative Law Treatise § 19.01 (1958) (emphasis added).  Thus, the doctrine has traditionally been applied in adjudicatory situations that is, where the case raises issues of fact or policy within a particular factual context.  For example, the Supreme Court has invoked this doctrine, inter alia, where the question before the court was the applicability of a particular tariff to the shipment of a certain commodity, 5 interpretation of a specific collective bargaining agreement, 6 and alleged violations of the antitrust laws.  7 In each case, a specific determination of fact or policy was required
                

Although we therefore cannot find the classic doctrine of primary jurisdiction applicable in this case, we are of the opinion that the facts support the application of a doctrine in the nature of primary jurisdiction more strongly than many of the cases in which the traditional doctrine has been invoked. Primary jurisdiction has usually been invoked in circumstances outlined by the Supreme Court in United States v. Western Pacific Ry., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126, 132 (1956):

No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. See Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. More recently the expert and specialized knowledge of the agencies involved has been particularly stressed. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576.

See also 3 K. Davis, supra at § 19.01. The traditional doctrine of primary jurisdiction thus is based on two distinct rationales: 1) the desire for uniformity of regulation; and 2) the need for an initial consideration by a tribunal with specialized knowledge. It is our opinion that both reasons for applying a doctrine of this type are present here to such a degree that this court must overlook the absence of adjudicatory issues and apply the general principles nonetheless.

First, it seems clear that Congress recognized the need for uniformity of regulation in this area when it passed the Hazardous Materials Transportation Act. 8 That statute, which became effective January 3, 1975, was intended "to broaden federal regulatory control over interstate...

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