Pan American World Airways, Inc. v. United States/Dissent Brennan

Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE concurs, dissenting.

The Court holds that the 'narrow questions presented by this complaint have been entrusted to the (Civil Aeronautics) Board and that the complaint should have been dismissed.' The ground of the decision is that the provisions for economic regulation in the Civil Aeronautics Act of 1938, which were reenacted without change in the Federal Aviation Act of 1958, displaced the Sherman Act insofar as 'all questions of injunctive relief against the division of territories or the allocation of routes or against combinations between common carriers and air carriers' is concerned. With all respect, I think this conclusion is contrary to reason and precedent.

The root error, as I set it, in the Court's decision is that it works an extraordinary and unwarranted departure from the settled principles by which the antitrust and regulatory regimes of law are accommodated to each other. As a result of today's decision, certain questions under the antitrust laws are placed in the exclusive competence of the Board and will not be the subject of original court actions to enforce the antitrust laws. In effect, a pro tanto repeal of the antitrust laws is contemplated, since the law to be applied in Board proceedings under § 411 is based not upon the antitrust laws but upon the 'public interest' and 'competition to the extent necessary' standards of the Board's overall mandate. See 49 U.S.C. § 1302. And though the Board's decisions under § 411 are subject to judicial review, presumably such review will be limited to ensuring that the Board adheres to the criteria set out in its mandate. See American Airlines, Inc., v. North American Airlines, Inc., 351 U.S. 79, 85, 76 S.Ct. 600, 605, 100 L.Ed. 953.

But of the instruments of accommodation that are available, pro tanto repeal of the antitrust laws by implication from a regulatory statute such as the Aeronautics Act is surely the very last that ought to be resorted to. It cannot be justified as a matter of statutory construction. Section 414 of the Act immunizes from the operation of the antitrust laws transactions as to which the Board has issued orders of approval under §§ 408, 409, and 412 (consolidations and mergers, interlocking directorates, and cooperative working arrangements). The existence of this express and specific provision for exemption would seem to presuppose the general applicability of the antitrust laws to the airline industry, and to limit the Board's exempting power to the enumerated orders, which do not include orders issued under § 411; the Court concedes that the Board has no power under §§ 408, 409, or 412 to approve the transactions upon which the instant suit is predicated. Furthermore, it is odd indeed that the Board should have express statutory authorization to enforce §§ 2, 3, 7, and 8 of the Clayton Act (see 15 U.S.C. § 21, 15 U.S.C.A. § 21) while the Sherman Act is not enforceable by any procedure with respect to the wide range of transactions comprised in the rule laid down by the Court today. It is odd because the Clayton Act was intended to supplement and reinforce the basic antitrust prohibitions of the Sherman Act, rather than to form an independent and self-sufficient scheme of regulation. By its action today, the Court subjects the airline industry to a crazy quilt of antitrust controls that Congress can hardly have contemplated.

Two further aspects of the Aeronautics Act cut against the Court's interpretation. The first is the presence of a saving clause: 'Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.' 49 U.S.C. § 1506. The second is the total absence from the Act of any provision for damages or reparations. This lacuna leads the Court, somewhat unusually in light of certain prior decisions, to intimate that the damages remedy under the antitrust laws survives where the injunctive remedy is barred-an impractical solution, as I shall try to demonstrate, see infra, pp. 326-327. The more reasonable interpretation of the absence of a provision for damages is that the Act was not intended to be an absolutely all-inclusive scheme of regulation which would oust every remedy afforded by a different statute or by the common law. The antitrust laws were to be allowed to function, save as regards the specific exemptions provided for in § 414, and these laws would support actions for damages and for equitable relief.

I am satisfied that the scheme of the Aeronautics Act refutes any inference that pro tanto repeal of the antitrust laws was intended. Nor does the legislative history furnish any support for the Court's position. The Court cites but a single sentence: 'It is the purpose of this legislation to coordinate in a single independent agency all of the existing functions of the Federal Government with respect to civil aeronautics * *  * .' H.R.Rep. No. 2254, 75th Cong., 3d Sess., p. 1. Prior to the enactment of the Aeronautics Act of 1938, the regulation of civil aviation had been divided between the Interstate Commerce Commission, the Department of Commerce, and the Post Office Department; and the plain meaning of the quoted sentence, especially in light of the debates that preceded passage of the Act, is that as a result of the Act regulation of civil aviation would be centralized in one agency, the CAB. See Hearings on H.R. 9738 before the House Committee on Interstate and Foreign Commerce, 75th Cong., 3d. Sess., p. 37.

But a still more conclusive refutation of the Court's reading of the Act is provided by an unbroken chain of decisions by this Court rejecting, in comparable situations, claimed pro tanto repeals by implication of the antitrust laws. Perhaps the leading case is United States v. Borden Co., 308 U.S. 188, 197-206, 60 S.Ct. 182, 191, 84 L.Ed. 181, where the Court held emphatically that the enactment of a regulatory statute would not be deemed to work a pro tanto repeal of the antitrust laws, save only if there was a plain repugnancy between the two regimes (which the Court does not suggest, except in the vaguest conclusional terms, is the case here), in which case repeal would be implied only to the extent of the repugnancy. But the holding of the Borden case had been anticipated in much earlier decisions of the Court. See United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 315, 17 S.Ct. 540, 549, 41 L.Ed. 1007; Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 161-162, 43 S.Ct. 47, 49, 67 L.Ed. 183; Central Transfer Co. v. Terminal Railroad Assn., 288 U.S. 469, 475-476, 53 S.Ct. 444, 446, 77 L.Ed. 899; Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 515, 56 S.Ct. 546, 552, 80 L.Ed. 827. See also United States v. Joint Traffic Assn., 171 U.S. 505, 19 S.Ct. 25, 43 L.Ed. 259; United States v. Pacific & Arctic Ry. & Nav. Co., 228 U.S. 87, 107-108, 33 S.Ct. 443, 449, 57 L.Ed. 742. And the canon of construction that repeals by implication are not favored has even a longer history in this Court's jurisprudence. See, e.g., United States v. Tynen, 11 Wall. 88, 92, 20 L.Ed. 153; Henderson's Tobacco, 11 Wall. 652, 20 L.Ed. 235.

Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456-457, strongly reaffirmed the Borden principle in the context of a regulatory scheme, the Interstate Commerce Act, no less pervasive than that which governs the airline industry. I believe it is accurate to say that the Court had never until today deviated from this position. See United States v. United States Alkali Export Assn., 325 U.S. 196, 205-206, 65 S.Ct. 1120, 1126, 89 L.Ed. 1554; Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 805, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939; United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354; Maryland & Va. Milk Producers Assn. v. United States, 362 U.S. 458, 464-465, 80 S.Ct. 847, 852, 4 L.Ed.2d 880; California v. Federal Power Comm'n, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54. Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226-227, 60 S.Ct. 811, 846, 84 L.Ed. 1129; Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 78 S.Ct. 851, 2 L.Ed.2d 926. Only last Term, in California v. Federal Power Comm'n, supra, we wrote: 'Immunity from the antitrust laws is not lightly implied. * *  * We could not assume that Congress, having granted only a limited exemption from the antitrust laws, nonetheless granted an overall inclusive one. See United States v. Borden Co., 308 U.S. 188, 198-202, 60 S.Ct. 182, 190, 84 L.Ed. 181.' 369 U.S., at 485, 82 S.Ct., at 903.

Furthermore, although this Court had not until today passed on the question whether the Aeronautics Act repealed by implication any part of the antitrust laws, the lower federal courts have uniformly held that it did not. See S.S.W., Inc., v. Air Transport Assn., 89 U.S.App.D.C. 273, 191 F.2d 658 (1951), cert. denied, 343 U.S. 955, 72 S.Ct. 1049, 96 L.Ed. 1355; Apgar Travel Agency, Inc. v. International Air Transport Assn., 107 F.Supp. 706 (D.C.S.D.N.Y.1952); Slick Airways, Inc., v. American Airlines, Inc., 107 F.Supp. 199 (D.C.N.J.1951), petition for prohibition dismissed sub nom. American Airlines v. Forman, 204 F.2d 230 (C.A.3d Cir.), cert. denied sub nom. American Airlines, Inc., v. Slick Airways, Inc., 346 U.S. 806, 74 S.Ct. 54, 98 L.Ed. 336.

Finally, it has been held that § 411 of the Aeronautics Act was modeled on § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, 15 U.S.C.A. § 45, and that decisions under § 5 are precedents for the construction of § 411. American Airlines, Inc., v. North American Airlines, Inc., 351 U.S. 79, 82, 76 S.Ct. 600, 603, 604, 100 L.Ed. 953. And § 5 has uniformly been construed to provide for duly enforcement by courts and agency of the antitrust laws, not exclusive enforcement by the agency. United States Alkali Export Assn. v. United States, 325 U.S. 196, 205-211, 65 S.Ct. 1120, 1128, 89 L.Ed. 1554; Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 692-695, 68 S.Ct. 793, 800, 92 L.Ed. 1010; United States v. Charles Pfizer & Co., 205 F.Supp. 94 (D.C.S.D.N.Y.1962); United States v. Cement Institute, 85 F.Supp. 344 (D.C.D.Colo.1949).

In light of this decisional history, it cannot be supposed that Congress, when it first enacted a scheme of comprehensive economic regulation of the airline industry in 1938 and when it reenacted these economic provisions without change in 1958, intended any displacement of the antitrust laws beyond that specifically provided for in § 414. Nor did the decisions I have cited rest upon the mechanical application of one of the common law's canons of statutory construction. However questionable the principle that repeals by implication are not favored may be in other contexts, it is entirely sound when dealing with the antitrust laws, and especially the Sherman Act. For this Act embodies perhaps the most basic economic policy of our society, basic and continuing: adhorrence of monopoly. The kind of conduct proscribed by the Sherman Act is simply not such that congressional silence may be interpreted as congressional approval. Where, as here, neither the scheme of the regulatory statute nor anything in the legislative history supports a pro tanto repeal by implication of the Sherman Act, it seems to me inescapable that we must reject such a solution. Nor can it be seriously contended that on the facts of the instant case judicial enforcement of the antitrust laws would disrupt, even slightly, the Board's regulation of civil aviation. See Part III, p. 327, infra. And since no question of certification for foreign air carriage is involved, there is no danger of court interference in matters committed to the President's discretion by 49 U.S.C. § 1461.

The decision today is, to me, not only unsound in law, but impractical. The Court purports to lay down a general rule governing the division of responsibilities between the courts and the CAB; and while certain antitrust questions, including those at bar, are to be withdrawn from the courts, others are to remain subject to judicial enforcement. I consider the Court's proposed line of demarcation between the judicial and administrative regimes unsupportable. I see no basis upon which to withdraw questions of route allocation, territorial division, and combinations between common carriers and air carriers from judicial cognizance, yet leave unaffected (as the Court appears to intend to do) questions of rate fixing, combinations between air carriers simpliciter, and other serious anticompetitive practices. By what arcane logic does a conspiracy to fix routes go more to the heart of the regulatory scheme than a conspiracy to fix rates? True, the Board, while it has authority to fix routes in foreign air transportation, has no authority to fix rates therein; but the Act broadly prohibits all forms of unjust discrimination, which of course would embrace many rate-fixing practices. See 49 U.S.C. § 1374(b); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 478, 480, 65 S.Ct. 716, 736, 89 L.Ed. 1051 (dissenting opinion). And what justification can there be for the Board's having exclusive jurisdiction of a combination one party to which is probably outside the Board's jurisdiction, see infra, pp. 330-331, but not of a combination both parties to which are clearly within the Board's jurisdiction? The only explanation I can conceive for these dubious distinctions is that the Court does not want to go so far as flatly to overrule some well-established decisions of this Court.

I find it equally difficult to understand the Court's apparently limiting its pro tanto repeal of the antitrust laws to questions of injunctive relief. It is true that an order of divestiture or some other equitable remedy may be more effective to deter certain antitrust violations than either criminal or damages sanctions. But the difference in effectiveness is one only of degree. An air carrier is not likely to persist in a course of conduct if heavy criminal penalties and awards of treble damages may be visited upon it. But just this possibility the Court seems to allow. I find it hard to follow the Court's attempted justification for mutilating the antitrust laws in terms of avoiding clashes between two regimes of law, the administrative and the judicial, when, the mutilation achieved, the clashes remain acutely present. In part, I must conclude that the Court's artificial distinction again was prompted by a desire to skirt, however disingenuously, prior holdings. In addition, the Court had to conjure with the fact that the CAB's statute nowhere provides a remedy, damages or reparations, for past misconduct.

I should also like to suggest the unreality of the Court's decision in the light of the particular circumstances of the instant case. By its decision today the Court brings to naught nine years of litigation. Yet these nine years actually represent only the most recent phase of a continuing problem first placed before the Civil Aeronautics Board 22 years ago. For 22 years Pan American World Airways has staved off the day of reckoning in respect to the tactics which, Judge Murphy found below, violated § 2 of the Sherman Act. Today's decision vindicates these tactics beyond Pan American's fondest expectations, for the problem is now back with the CAB which has from the outset protested its inability to deal with it.

This suit was instituted by the Government at the urging of the CAB, which in addition filed an amicus curiae brief in the District Court in support of the Government's position. And repeatedly over a period of many years, the Board has adverted to its felt helplessness in the face of the divided control of Panagra by two powerful corporations, one the dominant United States company in the field of foreign transportation. To be sure, we are not obliged to honor the Board's disinclination to assume jurisdiction. Trans-Pacific Airlines, Ltd., v. Hawaiian Airlines, Ltd., 174 F.2d 63 (C.A.9th Cir., 1949). But it is entitled to some weight, see 3 Davis, Administrative Law (1958), 14, and indeed, since the Board's position has been long and consistently adhered to, to great weight. United States v. Radio Corp. of America, 358 U.S. 334, 350, n. 18, 79 S.Ct. 457, 466, 3 L.Ed.2d 354. The search for a practical accommodation of court and agency, which is the problem of this case, is not advanced by our ignoring the agency's considered sense of self-limitation.

It is not as if the Board's hesitancy to move against the abuses disclosed by the record in this case were not based upon substantial considerations. We may concede the breadth of the Board's power under § 411 to remedy unfair methods of competition, which may sometimes be violations of the Sherman Act, yet still recognize the unsuitableness of such a remedy in the particular circumstances of this case. For one thing, I should think a proceeding respecting control of Panagra would be rather lopsided unless the Board had jurisdiction of Grace; but I am not sure that could be done. Section 411 only proscribes unfair methods of competition by air carriers and ticket agents. Grace is neither, unless it fits the broad language in which the Act defines an 'air carrier' as anyone 'who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation.' 49 U.S.C. § 1301(3). It is not entirely clear that 'air carrier' may be read as including a 50% owner of an air carrier, for the Act in general does not purport to regulate stockholders of its subject carriers, and where it does, notably in § 408, it does so explicitly. The opinion of the Court sees fit not to resolve this jurisdictional difficulty. I fear the Board has solid justification for not proceeding against Pan American unless it can proceed against Grace as well. But at all events the Court's silence is sure to result in an added step in this already intolerably prolonged litigation.

A further basis for the Board's hesitancy is that the Board has no experience in the enforcement of the antitrust laws, because § 411 has only been used against common-law unfair competition, never against practices deemed unfairly competitive by virtue of the antitrust laws. Hale and Hale, Competition or Control IV: Air Carriers, 109 U. of Pa.L.Rev. 311, 346-347 (1961). Most of the legal issues which have arisen in the instant litigation-the right of a joint owner to exercise his negative control in an anti-competitive fashion, the substantiality of the commerce restrained as a result of the defendants' conduct, the relevant geographical and services markets, the appropriateness of divestiture as a remedy, and so forth-are typical antitrust problems and not at all typical airline law problems. The expertness required is that of the judge skilled in antitrust adjudication-not that of the Board, which, so far as I can tell, has never dealt with an antitrust problem.

Nor is remission of the instant case to the CAB necessary to protect the integrity of the Board's regulatory scheme for the airline industry. Pan American argues that if its holdings in Panagra are divested, Panagra will apply for and be granted terminal points in the continental United States, with the result that Pan American will be driven out of business on many routes, to the serious detriment of the airline industry. But there is more to acquiring a route certificate than applying for it. If Panagra, freed of Pan American's negative control applies for a northward extension of its routes, it will be open to Pan American to argue before the Board the unwisdom of its granting the application. A judicial order in the instant case would not affect a single route, but would simply free the process whereby routes are established and territories are divided from the obstructive effects of monopolistic tactics. Judicial enforcement of the Sherman Act here would thus remove the clog of monopolization from the administrative process-not disrupt that process. Cf. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. The Court's reliance on Texas & Pac. R. Co. v. Abilene Cotton Tie Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, and Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183, is misplaced. The plaintiff in Keogh sought damages under the antiturst laws, complaining that but for the conspiracy the rates he had paid, though lawful because approved by the ICC, would have been lower. The Court held that the exclusive remedy for excessive rates had been vested by Congress in the ICC. It did not matter on what theory the shipper sought to recover; the courts had no power to undo a lawful rate by granting damages, whether on common-law grounds (as in Abilene) or under the antitrust laws. The Court in Keogh made very plain, however, that injunctive relief in respect of a conspiracy to raise rates might lie, at least if such relief was sought by the Government, as here. 260 U.S., at 161-162, 43 S.Ct., at 49. For (as Georgia shows) an injunction may be granted with no disturbance to the existing rate structure.

It should also be noted that the Court's decision today vindicates Pan American's hardly creditable 'tactic * *  * characteristic of its litigious nature' of first raising the jurisdictional issue in a post-trial brief filed six years after the complaint. 193 F.Supp., at 46. Of course, we are obliged to consider such issues sua sponte. United States v. Western Pacific R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 164, 1 L.Ed.2d 126; Note, Regulated Industries and the Antitrust Laws: Substantive and Procedural Co-ordination, 58 Col.L.Rev. 673, 690 and n. 114 (1958). But I find it a wry commentary on the Court's result that every factor of fairness and practicality argues against our abdicating jurisdiction of the present case.

In seeking to accommodate the regulatory and antitrust regimes by means of pro tanto repeal of the antitrust laws, the Court does not tell us why it has departed from the usual pattern of preferring a more flexible technique of accommodation: that afforded by the doctrine of primary jurisdiction. See generally 3 Davis, Administrative Law (1958), 1-55. That doctrine requires that the courts abstain from proceeding in a case of which they have original jurisdiction, remitting the parties in the first instance to their rights and remedies before the agency, where necessary to protect the integrity of the regulatory scheme administered by the agency. Such a requirement of prior resort does not preclude a later judicial antitrust proceeding, but simply ensures that the later proceeding will fully recognize the agency's interest in the premises. The antitrust laws are in no wise repealed. Cf. Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 498-499, 78 S.Ct. 851, 862, 2 L.Ed.2d 926. This mode of resolving conflicts between court and agency avoids the practical and conceptual difficulties of pro tanto repeals by implication. Until today, the Court had never failed to invoke primary jurisdiction in preference to repeal by implication as a means of accommodating the antitrust and regulatory laws; I see no basis for deviation in the instant case from that salutary approach. Certainly the Court suggests none.

I must in candor add that to apply the doctrine of primary jurisdiction to the case at bar would be somewhat of an extension of our decisions in the area, so jealously have we guarded the obligation of judicial enforcement of the antitrust laws. The tendency of the cases has been to invoke the doctrine not when there are simply overlapping judicial and administrative remedies for the same conduct, as is the case here, but only when 'there is a possibility that a subsequent administrative decision would approve the questioned activities,' as is not true here, since the approval power vested in the CAB by § 414 does not include orders under § 411. Schwartz, Legal Restriction of Competition in the Regulated Industries: An Abdication of Judicial Responsibility, 67 Harv.L.Rev. 436, 464 (1954). Compare United States Nav. Co. v. Cunard S.S.C.o., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, and Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576, with United States v. Pacific & Artic Ry. & Nav. Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742; Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051; United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354; and California v. Federal Power Comm'n, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54. See generally Jaffe, Primary Jurisdiction Reconsidered: The Anti-Trust Laws, 102 U. of Pa.L.Rev. 577 (1954). But even if it would take some straining to fit the instant case within the established framework of the law of primary jurisdiction, what the Court has done today is a far graver departure from heretofore settled guideposts of the law.