Montgomery v. American Airlines, Inc., 78-2608
| Decision Date | 28 July 1980 |
| Docket Number | No. 78-2608,78-2608 |
| Citation | 637 F.2d 607 |
| Parties | James A. MONTGOMERY, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lloyd Edward Tooks, San Diego, Cal., for plaintiff-appellant.
Donald D. Connors, Jr., Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Southern District of California.
Before ELY and WALLACE, Circuit Judges, and KING, * District Judge.
This is an appeal from the action of the district court, on cross motions for summary judgment, granting judgment in favor of Appellee American Airlines, Inc. (defendant below) and against Appellant James A. Montgomery (plaintiff below).
The district court based its action on the grounds that (1) the action was barred under the doctrine of res judicata, and (2) that the complaint failed to state a cause of action upon which relief could be granted. We affirm on the latter ground.
Appellant Montgomery's complaint was filed on September 15, 1977, as a class action on behalf of himself and all individuals who purchased scheduled domestic air transportation from Appellee American Airlines, Inc., during the preceding two years. He alleged that American's practice of granting free and reduced rate transportation to certain officers and employees of two wholly-owned subsidiaries of American, violates Sections 403(b) and 404(b) of the Federal Aviation Act, 49 U.S.C. §§ 1373(b) and 1374(b), and regulations promulgated thereunder by the Civil Aeronautics Board, 14 C.F.R. P 223.1, et seq. The complaint prayed for $2,000,000,000 (two billion dollars) in damages, calculated as the difference between the fares paid by all of American's air passengers for a two-year period and the free or reduced rates granted to American's subsidiary's employees. American moved for summary judgment on the grounds of failure to state a claim upon which relief could be granted, res judicata, and estoppel. Montgomery filed a cross-motion for summary judgment. No class has ever been certified.
Montgomery is a Skycap at San Francisco International Airport. He works for a firm called Allied Aviation Maintenance Service Company of California. His employer assigns Montgomery to attend to passengers of American. Montgomery is also the founder and president of the National Association of Skycaps, Incorporated (NASCAP).
American grants free and reduced-rate air transportation to its employees, some of whom are skycaps. American has on file with the CAB its regulations governing entitlement to passes. These regulations specifically provide for the granting of passes to employees paid by certain subsidiary corporate entities, and have so provided for the past 36 years. American takes the position that its practice with respect to free and reduced-rate transportation is permitted by Section 403(b) of the Federal Aviation Act, 49 U.S.C. § 1373(b), and regulations promulgated thereunder, 14 C.F.R. P 223.1, et seq. On September 19, 1974, Montgomery, acting for NASCAP, wrote to American demanding the same pass privileges for all Skycaps servicing the airline as were granted to employees of American. Part of his letter defines the dispute as follows:
Skycaps who are directly employed by the airlines now have this privilege (of obtaining free or reduced-rate air transportation) as part of their fringe benefit package with their airline employer. Those skycaps employed by contractors, performing the same service as airline Skycap employees do not have pass privileges and must defray the full costs of all air transportation.
In our opinion, this is a blatant act of job discrimination. It is our analogy that Skycaps perform the same service to airlines, regardless of the employer, and therefore should be entitled to the same privileges.
American replied that it could not issue passes as requested by NASCAP because the Federal Aviation Act did not permit the issuance of passes to employees of independent contractors.
On August 26, 1975, NASCAP filed suit in the United States District Court for the Central District of California, asserting that American's refusal to grant passes to members of NASCAP was "unjust discrimination" in violation of Section 404(b) of the Federal Aviation Act, 49 U.S.C. § 1374(b). NASCAP, Inc. v. American Airlines, Inc., No. CV-75-2872-HP. On April 12, 1977, this action was dismissed on the ground that primary jurisdiction of a claim of discrimination based on the contents of an airline regulation is with the Civil Aeronautics Board. No appeal was taken from this dismissal.
Shortly thereafter, the action of Complaining Skycaps v. American Airlines, Inc., CAB No. 30881, was filed with the Civil Aeronautics Board. This action also alleged unjust discrimination in violation of Section 404(b) of the Federal Aviation Act, 49 U.S.C. § 1374(b). On January 6, 1978, the CAB dismissed the action on the ground that the Complaining Skycaps' disagreement with American was a private labor dispute over a fringe benefit and not an unjust discrimination cognizable under the Federal Aviation Act. No appeal was taken from this dismissal.
While the CAB action was pending, and during the morning of August 25, 1977, Mr. Montgomery took a round-trip flight on an American Airlines plane between San Diego and Los Angeles for the specific purpose of laying the evidentiary basis for a class action. This action was then filed in the United States District Court for the Southern District of California. Summary judgment for American was entered on May 24, 1978.
Section 404(b) of the Federal Aviation Act, 49 U.S.C. § 1374(b), does not by its terms provide a private right of action for damages. Nevertheless, such a private right of action has been implied under various circumstances. The factors which must be considered in determining whether a private remedy for damages is implicit in a statute have been enunciated by the Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Four factors are set forth.
1. Does the statute intend to protect this class of person from this harm?
2. Did the legislature indicate any intent to create or deny a private remedy?
3. Would the private remedy be consistent with the legislative goals?
4. Is the cause of action one traditionally left to state law?
As applied to the Federal Aviation Act, clearly Plaintiff as a passenger is within the class of persons intended to be protected, the Congress did not express any intent as to a private remedy for damages, and a cause of action based on Section 403(b) of the Federal Aviation Act and applicable CAB...
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