Mason v. Belieu

• Decision Date: 15 April 1976
• Docket Number: No. 74-1731,74-1731
• Citation: 543 F.2d 215,177 U.S.App.D.C. 68
• Parties: , 177 U.S.App.D.C. 68 Irvin H. MASON et al. v. Kenneth BELIEU et al. Appeal of PAN AMERICAN WORLD AIRWAYS, INC.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 215

543 F.2d 215

41 A.L.R.Fed. 518, 177 U.S.App.D.C. 68

Irvin H. MASON et al. v. Kenneth BELIEU et al. Appeal of PAN AMERICAN WORLD AIRWAYS, INC.

No. 74-1731.

United States Court of Appeals District of Columbia Circuit.

Argued May 27, 1975.

Decided April 15, 1976.

William A. Bradford, Jr., Washington, D. C., for appellant.

John S. McCreery, Washington, D. C., with whom Ronald G. Yelenik, Washington, D. C., was on the brief, for appellees.

Before BAZELON, Chief Judge, EDWARDS, ^* Circuit Judge for the Sixth Circuit and TAMM, Circuit Judge.

Opinion for the Court filed by Circuit Judge TAMM.

Opinion filed by Circuit Judge EDWARDS, concurring in part and dissenging n part.

TAMM, Circuit Judge.

Plaintiffs-appellees, Irvin and Phyllis Mason, commenced this action in district court against 36 named individuals and Pan American World Airways, Inc. (Pan Am) alleging that the defendants had conspired to and committed various tortious acts against them, including violations of their civil rights. The district court dismissed the complaint against all defendants except Pan Am on the grounds of sovereign immunity and lack of personal jurisdiction. The case against the remaining defendant, Pan Am, was tried to the court, resulting in judgments of $1,000 in favor of Mr. Mason and $200 in favor of Mrs. Mason. In the judgment, the district court also awarded the Masons $150 as costs. Pan Am appeals from the judgment in favor of Mrs. Mason and from the allowance of costs.

It is apparent from a review of the record that the district court went to extraordinary lengths to afford Mr. and Mrs. Mason, who were proceeding pro se, every fair opportunity to present their case and we commend the trial judge for his conduct of the proceedings. Nevertheless, we are constrained to remand on the two issues raised by Pan Am.

During 1970 and 1971 Mr. and Mrs. Mason and their daughter resided in the Canal Zone where Mr. Mason, a licensed engineer, was a probationary employee of the governmental corporation that operates the Panama Canal. Mr. Mason claimed that while he was employed by the government he observed a number of officials committing what he considered to be unethical, illegal, and unpatriotic acts. The Masons contended that, because Mr. Mason questioned these acts, he was branded a "nonteam player" and a conspiracy was organized among Canal Zone officials to remove him from the Zone. The Masons further claimed that the conspiracy resulted in the termination of Mr. Mason's employment in April, 1971, while he was still a probationary employee, which raised questions concerning the legality of his continued residence in the Canal Zone. In July, 1971, Mr. Mason obtained employment with a Panamanian contractor who had subcontracted work in the Canal Zone, and the Masons continued to reside there. In September, 1971, however, the Magistrate of the Canal Zone ordered Mason evicted from his government housing since he was no longer employed by the government and confiscated his property. The Masons then moved to Panama.

On February 3, 1972, while in the Canal Zone on business for his employer, Mason was arrested and, following a hearing, was ordered deported on February 5. The events surrounding Mr. Mason's deportation received much attention in the Panamanian press. Mr. Mason vowed at his deportation hearing that if deported he would return on the next plane to fight the conspiracy which was behind his dismissal and deportation. Taken to Tocumen Airport in Panama by Canal Zone officials, Mason refused to board a flight to Miami on February 5 and the pilot refused to allow Mason to board when it appeared that he would have to be carried forcibly onto the plane. Early on Sunday, February 6, Mason was again taken to Tocumen Airport, where he was placed forcibly on a Braniff Airlines flight to Miami and was accompanied by an officer of the Canal Zone immigration service. Once in Miami, Mason refused to leave his seat, but was removed by Dade County police officers who placed him in a wheelchair. Inside the terminal, Mason refused to sign a customs declaration, but customs officials ultimately released him.

Consistent with his earlier announced intentions to return to Panama, Mr. Mason purchased a tourist card for entrance into Panama and a ticket for a Pan American flight to Tocumen Airport that afternoon. He then called his wife and informed her of his plans.

Meanwhile, several hours before the departure of Pan Am Flight 585, Pan Am's Assistant Airport Service Manager, Robert Finn, learned from Braniff's manager of the circumstances of Mason's arrival in Miami, of the deportation order, and of Mason's intent to return. Upon discovering that Mason had booked passage on Flight 585, Finn proceeded to the gate. When Mason arrived, Finn told him that Mason could not fly to Panama on Pan Am until Pan Am could confirm that Panamanian authorities would permit Mason to enter that country. Finn was unable to obtain confirmation and Flight 585 departed without Mason. Mason was able to obtain alternate passage on an Air Panama flight to Tocumen Airport, but when he called home, he learned that his wife had already left for the airport to meet the Pan Am flight. Upon his arrival at Tocumen Airport, Mr. Mason was met by his wife, who later testified that she had been kept under surveillance and followed while she waited at the airport. He was also met there by Canal Zone and Panamanian officials. Considerable confusion ensued, and the Masons decided to seek asylum in Panama. Since Panamanian governmental offices were closed, the Masons were taken into police custody and held until their request for asylum was granted the following day.

The Masons later returned to the United States and in July, 1973, filed this action on behalf of themselves, their daughter and the Mason Engineering Corporation. Named in their complaint were 36 individuals including officials of the Panama Canal Company, the Canal Zone government, and the Department of the Army and Pan Am. Prior to trial, the district court dismissed the complaint against three individuals based on sovereign immunity and against all other defendants except Pan Am because of improper service of process.

Although the Masons admitted that Pan Am was not in any way involved in Mr. Mason's dismissal or deportation and was itself a victim of, rather than a participant in, the conspiracy, they nevertheless felt that Pan Am's conduct had caused them mental distress and severe inconvenience and had resulted in their seeking asylum. The case was tried to the court, which found that Pan Am had not been justified in refusing Mr. Mason passage on Flight 585. The court held that both Mr. and Mrs. Mason were entitled to compensatory damages under the antidiscrimination provision of the Federal Aviation Act of 1958, section 404(b), 49 U.S.C. § 1374(b) (1970), but found for Pan Am with respect to the complaints of the Masons' daughter and Mason Engineering. The court set damages at $1,000 for Mr. Mason and $200 for Mrs. Mason; in addition it awarded the Masons costs of $150. Pan Am has not appealed from the judgment entered in favor of Mr. Mason. Its challenge is to the propriety of awarding damages to Mrs. Mason under section 404(b) and to the allowance of costs. It claims that Mrs. Mason was not within the class of persons covered by section 404(b) and that the district court erred in allowing costs without the filing of a bill of costs. We consider these claims seriatim.

In resolving the first issue, we must determine whether nonpassengers are per se excluded from 404(b) protection, whether the airline's treatment of Mason or of Mrs. Mason discriminated against her within the broad terms of the statute, and whether a cause of action for damages may be implied for a nonpassenger under the circumstances of this case. We begin our analysis by examining briefly the history of antidiscrimination clauses in public transportation.

Section 404(b) provides in part:

No air carrier or foreign air carrier shall . . . subject any particular person, port, locality or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

49 U.S.C. § 1374(b) (1970). This section was a "reenactment virtually without substantive change" of the Civil Aeronautics Act of 1938. H.R.Rep. No. 2360, 85th Cong., 2d Sess. 15 (1958). The House Report of H.R. 9738, which contained the same language as the 1938 Act, explained that each air carrier "is required to adhere to its tariffs, and is forbidden to charge discriminatory rates or to enforce discriminatory regulations." H.R.Rep. No. 2254, 75th Cong., 3d Sess. 7 (1938). See also H.R.Rep. No. 2635, 75th Cong., 3d Sess. 70 (1938).

The language of 404(b) also parallels the antidiscrimination provision of the Interstate Commerce Act of 1887:

(1) It shall be unlawful for any common carrier subject to the provisions of this chapter . . . to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .

49 U.S.C. § 3(1) (1970). The Interstate Commerce Act provision was aimed primarily at discriminatory rates and practices which favored one shipper or one geographical area over another. ¹ See, e. g., Cullom Report to S. 1093, 49th Cong., 1st Sess. (Jan. 18, 1886), in I B. Schwartz, The Economic Regulation of Business and Industry: A Legislative History of U. S. Regulatory Agencies 42 (1973); see also Senate Debate on Conference Report to S. 1532, 49th Cong., 2d Sess. (Dec. 15, 1886 Jan. 14, 1887), in I Schwartz, supra at 371 (remarks of Sen. Coke), 414 (remarks of Sen. Hoar); Statement of House Conferees on S. 1532, 49th Cong., 2d Sess. (Jan. 18, 1887), in I...