Texas International Airlines, Inc. v. Civil Aeronautics Board

• Citation: 473 F.2d 1150
• Decision Date: 11 December 1972
• Docket Number: 71-1868.,No. 71-1867,71-1867
• Parties: TEXAS INTERNATIONAL AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Southwest Airlines Company, Intervenor. BRANIFF AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Southwest Airlines Company, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

473 F.2d 1150 (1972)

TEXAS INTERNATIONAL AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Southwest Airlines Company, Intervenor.

BRANIFF AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Southwest Airlines Company, Intervenor.

Nos. 71-1867, 71-1868.

United States Court of Appeals, District of Columbia Circuit.

Argued September 13, 1972.

Decided December 11, 1972.

Mr. Emory N. Ellis, Jr., Washington, D. C., for petitioner in No. 71-1867.

Mr. B. Howell Hill, Washington, D. C., with whom Messrs. David H. Lloyd and Frederick B. Abramson, Washington, D. C., were on the brief, for petitioner in No. 71-1868.

Mr. Robert L. Toomey, Atty., C. A. B., with whom Messrs. R. Tenney Johnson, Gen. Counsel, O. D. Ozmont, Deputy Gen. Counsel, Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, C. A. B., and Howard E. Shapiro and Robert B. Nicholson, Attys., Dept. of Justice, were on the brief, for respondent.

Mr. Paul Y. Seligson, Washington, D. C., with whom Mr. Paul M. Ruden, Washington, D. C., was on the brief, for intervenor.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN, Circuit Judge.

PER CURIAM:

Appellants Braniff Airways and Texas International Airways,¹ federally certified air carriers, seek reversal of orders of the Civil Aeronautics Board dismissing their complaints against Southwest Airlines Company, a state certified air carrier. The complaints alleged that the purely intrastate operations of Southwest in three commercial air markets in Texas would adversely affect interstate carriers in competition with Southwest, and that this effect upon interstate commerce made it necessary under the Federal Aviation Act for Southwest to obtain a certificate of public convenience and necessity from the Board. Appellants also urged the Board to initiate an investigation of Southwest's operations to determine whether they might not in fact constitute interstate commerce; and they assert that the failure to do so was an abuse of the Board's discretion. We find no merit in either of these contentions and, accordingly, deny the petition for review.

This controversy began its lengthy course in November, 1967, when Southwest asked the Texas Aeronautics Commission for a certificate of public convenience and necessity authorizing intrastate service between Dallas, Fort Worth, Houston and San Antonio. Despite active opposition in the proceedings by Braniff and Texas International, the Texas Commission determined that the certificate should be issued.

Braniff and Texas International brought an action for review of the Texas Commission's decision in a Texas state court, and Southwest intervened as a defendant in the action. The trial court, after an evidentiary hearing, reversed the Texas Commission's decision, and that judgment was affirmed by the Court of Civil Appeals of Texas. The Supreme Court of Texas reversed and reinstated the Commission's award. Texas Aeronautics Commission v. Braniff Airways, Inc., Tex., 454 S.W.2d 199 (1970). The Supreme Court of the United States denied certiorari. 400 U.S. 943, 91 S.Ct. 244, 27 L.Ed.2d 247 (1970).

Immediately thereafter, and prior to commencement of operations by Southwest, Braniff and Texas International filed the complaints here in question with the Civil Aeronautics Board, alleging that Southwest was required by the Federal Aviation Act to obtain a certificate of convenience and necessity from the Board, and that it had failed to do so. The Director of the Board of Enforcement dismissed the complaints; and the Civil Aeronautics Board refused to review that action. After Southwest began operations, appellants again sought review of the order, alleging that Southwest was engaged in interstate commerce and urging that the Board investigate Southwest. Those petitions were also denied, and this appeal, in which Southwest has been allowed to intervene, followed.

Appellants' argument that certification is required is based on the theory that, in order to effectuate the policies of the Federal Aviation Act, the economic regulatory provisions of the Act should be construed to apply to the activities of carriers which, although engaged in purely intrastate commerce, affect interstate commerce. Since Southwest is in competition with Braniff and Texas International, and since the latter carriers are both engaged in interstate commerce, they argue that Southwest should be subject to federal control. The answer to this contention is found in the plain language of the Act.

The economic regulatory provisions which require certification by the Board apply, insofar as is here pertinent, only to persons who engage in "air transportation" as defined by the Act. Section 401, 49 U.S.C. § 1371(a). Air transportation is defined in relevant part as "interstate air transportation." Section 101 (10), 49 U.S.C. § 1301(10). "Interstate air transportation" is in turn defined as "the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft, in commerce between . . . a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the District of Columbia. . . ." Section 101(21), 49 U.S.C. § 1301(21). Nothing in this definition is directed at activities which merely affect interstate commerce.

Further, "air commerce," defined in the same provision of the Act as "air transportation," expressly includes "any operation or navigation of aircraft within the limits of any Federal Airway" and "any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate . . . air commerce." Section 101(4), 49 U.S.C. § 1301(4). This indicates that the omission of similar language in the definition of "air transportation" was deliberate. Thus, appellants' position that Southwest should be required to obtain certification because its activities affect interstate carriers is untenable.²

With regard to appellants' claims that the Board erroneously refused to investigate the complaints that Southwest was engaged in "air transportation," the Act provides that whenever the Board "is of the opinion that any complaint does not state facts which warrant an investigation or action, such complaint may be dismissed without hearing." Section 1002, 49 U.S.C. § 1482(a). Nothing in the case before us indicates an abuse of that discretion.³

Affirmed.

WILBUR K. MILLER, Senior Circuit Judge:

The issues tendered to the CAB by Braniff and Texas International had theretofore been adjudicated against them by the Supreme Court of Texas in litigation between the same parties. It follows, of course, that these cases should be disposed of on the ground of res judicata. In ignoring that patent truth and proceeding to a decision on the merits, the majority err because by so doing they countenance an abuse of the judicial process by Braniff and Texas International and encourage others to follow their example.

No matter how clearly it appears that a certain decision on the merits would be justified, I suggest that a court should never follow that indicated easy course in order to avoid consideration and determination of a res judicata question, particularly when, as here, the doctrine is so plainly applicable.

While I have seen a considerable number of res judicata situations in the period of more than fifty-six years since my admission to the bar, I have never seen one more typical than that presented in these cases. In reaching that conclusion, I have read carefully the pleadings and briefs filed by all parties in the Texas courts—a mass of material more than four inches thick—and have thus become familiar with the arguments advanced by the diligent and resourceful counsel for Braniff and Texas International. They omitted no point which their ingenuity could devise in their attack upon the application of Air Southwest. My colleagues do not apply the doctrine of res judicata because they have not read the pleadings and briefs in the Texas courts and hence are not aware of the plain applicability of that doctrine.

In order to demonstrate how aptly res judicata applies here, it is necessary for me to trace the history of the Texas litigation, although doing so will be in part a repetition of the factual portion of the majority opinion: In November, 1967, Air Southwest applied to the Texas Aeronautics Commission for a certificate of public convenience and necessity authorizing it to engage in air transportation of persons and property between various Texas cities, without leaving Texas airspace. The application was actively opposed by Trans-Texas Airways¹ and Braniff Airways, federally certificated air carriers; they were present at and participated in the Texas Commission's hearings and introduced evidence; and each of them filed a brief and presented oral arguments. The Texas Commission determined on February 20, 1968, that the certificate for which Air Southwest had applied should be granted and requested that an appropriate order and certificate be prepared.

Before that could be done, Braniff, Trans-Texas and others filed suit against the Texas Commission in the District Court of Travis County, Texas, praying that its determination to issue a certificate to Air Southwest be set aside and that it be enjoined from issuing it. The Texas Commission's answer put in issue the allegations of the petition. Air Southwest intervened, aligned itself as a defendant, and denied the plaintiffs' allegations.

The plaintiffs' petition attacked the Texas Commission on a number of grounds, which included allegations (1) that the issuance of the certificate and the exercise of rights thereunder would "irreparably harm, injure and damage" them through loss of revenues and would cause them undue economic hardship; and (2) that the action of the Texas Commission constituted a burden on, a regulation of, and...