State of Kan. v. U.S.

• Decision Date: 18 February 1994
• Docket Number: No. 92-5259,92-5259
• Citation: 16 F.3d 436
• Parties: STATE of Kansas, et al., Appellants, v. UNITED STATES of America, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 436

16 F.3d 436

305 U.S.App.D.C. 14

STATE of Kansas, et al., Appellants, v. UNITED STATES of America, et al.

No. 92-5259.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 23, 1993.

Decided Feb. 18, 1994.

John W. Campbell, Deputy Attorney General for the State of Kansas, Topeka, KS, argued the cause for appellants, State of Kansas, et al. With him on the joint brief was Robert T. Stephan, Attorney General of the State of Kansas, Topeka, KS.

David J. Gallo, Special Assistant Attorney General of the State of Kansas, Topeka, KS, argued the cause for appellants, Wichita Airport Authority, et al.

Thomas Ray, Sr. Trial Atty., U.S. Dept. of Transp., Washington, DC, argued the cause, for appellees, U.S., et al. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John D. Bates, R. Craig Lawrence, and John C. Martin, Assistant United States Attorneys, and Paul M. Geier, Asst. Gen. Counsel, U.S. Dept. of Transp., Washington, DC.

James T. Lenhart, Washington, DC, Attorney, argued the cause for appellee, Dallas-Fort Worth International Airport Board. With him on the brief were J.E. Murdock, III, Washington, DC, and W. Eric Pilsk, McLean, VA. Wanda G. Sobieski, Knoxville, TN, entered an appearance.

Richard A. Rothman, New York City, Attorney, argued the cause for appellee, American Airlines, Inc. With him on the brief were Mike McKool, Jr., Richard A. Lempert, Jeffrey R. Bragalone, Dallas, TX, David A. Schwarte, Fort Worth, TX, and Holly J. Gregory, New York City. Eric W. Buether, Dallas, TX, entered an appearance.

Before: EDWARDS and SILBERMAN, Circuit Judges, and JAMES L. OAKES, ^* Senior Circuit Judge, United States Court of Appeals for the Second Circuit.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellants, who have brought a three-pronged constitutional challenge to the Wright Amendment, claiming that it violates the Port Preference Clause and the First Amendment, and interferes with their right to interstate travel, appeal the district court's grant of summary judgment on behalf of the government. We affirm.

I.

The Wright Amendment, section 29 of the International Air Transportation Competition Act of 1979 (the International Competition Act), Pub.L. No. 96-192, 94 Stat. 35, 48-49 (1980), ¹ restricts air traffic from Love Field an airport located in the Dallas-Fort Worth area. Congress enacted the Amendment because it hoped to support "a fair and equitable settlement for a dispute that has raged in the Dallas/Fort Worth area for many years." H.R. CONF.REP.NO. 716, 96th Cong., 1st Sess. 24 (1979).

Prior to the enactment of the Amendment, the cities of Dallas and Fort Worth had constructed a new airport, Dallas-Fort Worth International Airport (DFW), which would handle all the area's air traffic. The cities agreed that existing airports, such as Love Field, which is about 5 miles from Dallas, would have their traffic rerouted to DFW (which is approximately 17 miles from Dallas--both distances measured as the crow flies from downtown). Though most airlines subsequently relocated to DFW, Southwest Airlines refused to leave Love Field and obtained a court ruling allowing it to continue to serve other cities in Texas. City of Dallas v. Southwest Airlines Co., 371 F.Supp. 1015, 1035 (N.D.Tex.1973), aff'd, 494 F.2d 773 (5th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). After the passage of the Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705 (1978), the Civil Aeronautics Board (CAB), as part of its airline deregulation policy, permitted Southwest to initiate Dallas-New Orleans service. See Cramer v. Skinner, 931 F.2d 1020, 1023 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991). Congress feared that if Southwest were to operate on an unrestricted basis from Love Field (closer to Dallas than DFW) many travelers to and from Dallas would choose that option rather than using DFW, thus undermining the economic viability of DFW. To protect the carriers flying into DFW and, therefore, the airport, Congress passed the Wright Amendment to limit the competitive impact of Love Field.

The Amendment forbids airlines from offering direct interstate flights from Love Field except: charter flights from Love not exceeding 10 flights per month, commuter airlines carrying less than 56 passengers, and flights to the contiguous states of Louisiana, New Mexico, Oklahoma, and Arkansas. International Competition Act Sec. 29(a)-(c). In other words, Southwest may provide direct service between Love Field and points within Texas and the states bordering Texas (the Service Area).

Passengers may, under the Amendment, still fly between Love Field and points outside the Service Area. Rather than flying directly from Love Field to those destinations, however, passengers must first travel from Love Field to a point within the Service Area, change planes, and then continue on to their final destination. Travelers must purchase separate tickets for each leg of the trip (so-called "double-ticketing") and may not check their baggage for the entire journey. And, of course, the Wright Amendment puts no restrictions on service at DFW.

The Amendment further prohibits Southwest from "offer[ing] for sale" transportation outside the Service Area. International Competition Act Sec. 29(c)(2). The Department of Transportation, which administers the statute, has interpreted that language as barring advertising or volunteering information regarding service between Love Field and points outside the Service Area. But if a traveler asks how he or she can fly through the Service Area to points outside, an airline may provide information regarding the double-ticketing arrangement. We have previously upheld the Department's interpretation of the Wright Amendment without reaching a First Amendment challenge. See Continental Air Lines, Inc. v. Department of Transp., 843 F.2d 1444 (D.C.Cir.1988).

Appellants include the State of Kansas, one of its airports, the Central Travel Agency, the Wichita Airport Authority, and a number of travelers who wish to fly into Love Field from outside the Service Area without the inconvenience of a stopover in the Service Area. The travelers assert that their travel planning is burdened by the absence of published schedules and single through fares for flights to Love Field. The district court correctly determined that at least some of the individual appellants have standing to raise all of the challenges. Kansas v. United States, 797 F.Supp. 1042, 1048 (D.D.C.1992). The State of Kansas, the main litigant, may not sue on behalf of its citizens as parens patriae, see id. n. 10, citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n. 16, 102 S.Ct. 3260, 3270 n. 16, 73 L.Ed.2d 995 (1982), but it has standing to sue as an employer whose employees occasionally fly to Dallas. That is not, however, because Southwest's fare structure is lower than competing airlines. Appellants do not dispute that that factor is quite independent of the Wright Amendment. It is merely because Love Field is closer to Dallas and therefore the trip presumably would take less time and cost Kansas somewhat less if its employees could use Love Field. The Central Travel Agency has standing to challenge those provisions of the Amendment that inhibit its employees from dispensing information concerning flights to and from Love Field.

A virtually identical lawsuit was brought a few years ago before the Fifth Circuit, ² which rejected all three constitutional claims, see Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991), as did the district court in this case. See 797 F.Supp. at 1054.

II.

A. The Port Preference Clause

This provision of the Constitution has never been relied on by the federal judiciary to hold an act of Congress unconstitutional. The district court, accordingly, thought the clause "almost a historical nullity." 797 F.Supp. at 1049. We would prefer to say that it simply has not yet been seriously impinged upon. The Clause has two parts, both of which appellants assert have been transgressed by the Amendment. It states that: "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another." U.S. CONST. art. I, Sec. 9, cl. 6.

Appellants claim that an airport is a "port" for purposes of the Clause and that the Wright Amendment, by permitting flights between Love Field and airports in service area states, discriminates against airports in non-service area states and thereby provides a "preference" to airports in service area states. Furthermore, to require passengers from, let us say, Wichita, bound for Love Field, to disembark in Oklahoma and change planes is to require those passengers and planes to "enter" or "clear" in Oklahoma before going on to Texas. The government does not dispute appellants' contentions that the Port Preference Clause covers airports and planes, so for purposes of the case, we assume that airports are "ports" and that airplanes are "vessels" within the meaning of the Clause.

The Port Preference Clause, as reflected in the records of the Philadelphia Convention, was designed to prevent the federal government from providing any regulatory benefits to ports in one state over another. The paradigm evil the Clause was explicitly designed to prevent is a federal law requiring ships sailing to Baltimore to first enter and clear at Norfolk. 2 RECORDS OF THE FEDERAL CONVENTION 417 (Max Farrand ed. 1966) (comments of Maryland delegates Daniel Carroll and Luther Martin). The Framers obviously assumed that forcing entry or clearance in Norfolk would be a kind of tax imposed on vessels bound for the Chesapeake Bay; vessels would thereby have an incentive to...