District Court, 91 F.Supp. 269, which had dismissed the complaint as being within the primary jurisdiction of the Civil Aeronautics Board and ordered the District Court to retain jurisdiction of the suit while the plaintiff initially pursued its available administrative remedies before the Board.
Judge Bazelon, speaking for the majority of the co,rt stated that until the Board has had an opportunity to act upon the allegations of the complaint injunctive relief in the District Court is unavailable and that to the extent that various practices, agreements, methods of competition, etc., would be determined by the Board to be authorized or permissible under the Civil Aeronautics Act, 49 U.S.C.A. 401 et seq., no injunctive relief under the anti-trust laws would be available at any time.
However, the court acknowledged the difficulties inherent in accommodating the conflicting statutory schemes of the anti-trust laws and the Civil Aeronautics Act and recognized that the Board could, at most, grant the plaintiff 'prospective' relief only in the form of a cease and desist order but that it had no authority to award damages.
Referring to the latter aspect, he said:
'The prayer for treble damages under the antitrust laws raises a different problem. The Civil Aeronautics Act, unlike the Interstate Commerce Act and the Shipping Act, does not authorize the award of damages by the Board for violation of its provisions. Where specific damage provisions are contained in regulatory statutes, it has been held that there may be no recovery of treble damages under the antitrust laws. (27) And this even in a statute such as the Interstate Commerce Act which contains a clause saving all preexisting remedies at common law or by statute. Here, however, we have both a saving clause, which provides that 'Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies' (28) and a statute which conspicuously makes no provisions for damages. Reading the saving clause in the light of congressional failure to provide a remedy for damages in the Civil Aeronautics Act, we conclude that Congress did not intend to deprive an air carrier of its right to seek treble damages for violations of the antitrust laws. This accords with the Supreme Court's determination that it could grant injunctive relief under the antitrust laws against a combination of railroads under circumstances where the Interstate Commerce Commission was not authorized to grant comparable relief. (29)
'We do not intend to intimate that appellant may recover damages for appellees' violation of the Civil Aeronautics Act. Treble damages may be obtained only for injuries to business and property resulting from action forbidden by the antitrust laws. And the District Court rather than the Board, is the forum in which the latter issue must be resolved. What we are saying is that the same set of facts may give rise to both a violation of the Civil Aeronautics Act and a violation of the antitrust laws. Although the second does not necessarily follow from the first but is bottomed upon its own statutory standards, the antitrust remedy of treble damages is not defeated by the fact that the Civil Aeronautics Act is also violated. * * * ' 191 F.2d at pages 663, 664.
'27. Terminal Warehouse (Co.) v. Pennsylvania R. Co., 297 U.S. (500), at page 514, 56 S. Ct. (546), at page 551 (80 L. Ed. 827); U(nited) S(tates) Navigation Co. v. Cunard S.S. Co., 284 U.S. (474), at page 250, 76 L. Ed. 408; Keogh v. Chicago & N.W. Ry. Co., 260 U.S. (156), at pages 163-164, 43 S. Ct. 47, 67 L. Ed. 183.'
'28. Sec. 1106 of the Civil Aeronautics Act, 49 U.S.C.A. 676.'
'29. (State of) Georgia v. Pennsylvania R. Co., 324 U.S. (439), at page 455, 65 S. Ct. (716), at page 725, 89 L. Ed. 1051.'
Nevertheless, Judge Bazelon concluded upon the authority of General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 423, 60 S. Ct. 325, 84 L. Ed. 361, that the court should stay its hand pending the conclusion of an appropriate administrative proceeding since an administrative problem, committed to the Board, was involved.
Judge Clark, while concurring with the majority that the decision of the District Court should be reversed and remanded, differed with his colleagues as to its disposition upon remand. He noted that the Civil Aeronautics Act makes no provision for damages and that the majority agreed that the District Court had jurisdiction to hear the complaint with respect to damages. Consequently, the reason for the application of the doctrine of primary jurisdiction being lacking, Judge Clark commented that 'the conclusion, it seems, is inescapable that the appellant should not be required to perform the useless task of making the request before the Civil Aeronautics Board.'
Defendants also asserted that the Cunard case
as well as the S.S.W. case stand for two principles not recognized by this court in its opinion, namely:
'(1) That in private antitrust actions the means and methods alleged are an essential part of the cause of action and must be considered in determining 'the nature of the complaint'; and
'(2) That where the question of primary jurisdiction is raised in such actions, it is resolved by a comparison of the entire subject-matter of the complaint, including the means and methods, with the regulatory statute.'
It is submitted that these principles were not ignored and that the instant complaint was not defined in terms of the purpose of the alleged conspiracy only without regard to the means and methods allegedly used to accomplish the purpose. This point was treated at length in the original opinion and I adhere to the views expressed therein. I have indicated there not that the means and methods are unimportant in determining the extent to which we must have recourse to the primary jurisdiction of an administrative body (See opinion, 107 F.Supp. 212) but rather that the utilization of 'legal' means and methods in furtherance of a proscribed conspiracy in a regulated industry does not per se insulate and immunize the conspirator from the anti-trust laws where they are the symptoms or incidents of an enveloping conspiracy with illegal ends, and that therefore a court can have jurisdiction over an illegal conspiracy even though effectuated by legal means and methods. See State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051.
I am still unpersuaded at this stage of this litigation that the accommodation of the two statutes and remedial provisions thereof would be better served by staying the proceedings in this case and remitting the plaintiff to the Board for the resolution of administrative problems. The heart of the complaint in this proceeding is that plaintiff has suffered monetary damage
by reason of defendants' past activity in violation of the anti-trust laws, the remedy for which, in damages, is indisputably beyond the power of the Civil Aeronautics Board. The doctrine of the exhaustion of administrative remedies can therefore have no application here. But beyond this there do not presently appear administrative problems which must be committed to the Board for its determination. The practice of which plaintiff principally complains is that of predatory rate policies, a matter which has previously been before the Board upon extended hearings and has been the subject of findings and prospective relief (See opinion, 107 F.Supp. 213).
It should be noted that the S.S.W. case differs from the instant case in this respect since the opinion in that case indicates that no recourse of any kind was had before the Board. Certainly this case is different from those wherein are involved the Shipping Board and the Interstate Commerce Commission. Generally speaking, these administrative agencies are clothed with no event, can the Civil Aeronautics Board award damages and resort for the same can be to the court alone. We are here confronted then with the question of whether, in the absence of the requirement of the exercise of expert and technical knowledge of the regulated industry, the doctrine of primary jurisdiction compels the submission to the Civil Aeronautics Board for determination as to validity under the Civil Aeronautics Act (its only proper field) of every means and method allegedly employed in furtherance of violations of the anti-trust laws. To hold that the question must be answered in the affirmative because Sec. 494 of the Civil Aeronautics Act relieves '(a)ny person affected by any order made under sections 488, 489, or 492 of this chapter' from the operation of the anti-trust laws, is untenable.
Section 488 regulates the forms of ownership, leasing and control of air carriers. Section 489 regulates interlocking officers and directors of air carriers who have stock interests in other air carriers or corporations owning stock of other air carriers and also regulates relationships between officers and directors of air carriers with other carriers in relation to the negotiability, hypothecation of and sales of securities of other air carriers. Section 492 provides broadly for the filing of agreements and contracts (or memoranda thereof where oral) with the Civil Aeronautics Board where they affect air transportation as specified.
At this stage of this case we cannot say that the means and methods alleged in the complaint herein fall into those classifications and to answer that all of them arbitrarily must be submitted to the Civil Aeronautics Board initially, raises serious considerations of practicality. Having in mind that the plaintiff herein, unlike its counterpart in the S.S.W. case, was granted a certificate of convenience and necessity after due adjudication by the Civil Aeronautics Board it is not reasonable to assume the possibility that it would approve a conspiratorial combination to exclude it from the industry, if, indeed, imagination can be stretched sufficiently to envision the filing of such a written agreement or a memorandum of an oral one.
Furthermore, an affirmative answer would mean that the Civil Aeronautics Board has the power to, and would, hear evidence of alleged acts performed in the past for the sole purpose of determining whether they constitute conduct in violation of the Civil Aeronautics Act so that a suit might be instituted to recover damages under the anti-trust laws.
I cannot conceive that this is the proper accommodation of the two statutes as they affect this case, since such a construction would nullify the express provision of Sec. 676 of the Civil Aeronautics Act which is obviously designed to give survivorship to the remedies embodied in the anti-trust laws. See opinion, 107 F.Supp. 205.
This case does not generate in the Civil Aeronautics Act such a repugnancy to the anti-trust laws as to warrant the limitation of the latter for which the defendants argue. Compare Consolidated Gas Electric Light & Power Co. v. Pennsylvania Water & Power Co., 4 Cir., 194 F.2d 89, 97, et seq., certiorari denied 343 1. S. 963, 72 S. Ct. 1056.
Moreover, the type of damages sought in the instant case by plaintiff as a competitor injured by a conspiracy in violation of the anti-trust laws may not come within the prescription of those cases barring any recovery of damages from the imposition of rates given 'legal' sanction by an administrative body. In cases where a shipper or passenger brings suit, any attempt to recover the difference between the rate which would have prevailed, absent the conspiracy, and the authorized rate, is proscribed as contravening the rationale of uniformity and prevention of discrimination underlying the administrative establishment of a rate. Compare Keogh v. Chicago & N.W. Ry. Co., 260 U.S. 156, 43 S. Ct. 47, 67 L. Ed. 183. See also State of Georgia v. Pennsylvania R. Co., supra, 324 U.S.at page 453, 65 S. Ct.at page 724. However, the plaintiff asserts that the damage that it has sustained has resulted from defendants' conspiracy to drive it out of business and that it is to be measured in terms of 'damage to the good will, the business, the property, the competitive position, and the future prospects of plaintiff.'
Until, at least, the stage in these proceedings is reached when the issues and proofs may 4e more fully canvassed by proper pretrial methods it is not necessary to anticipate the admissibility or inadmissibility of proofs of damages in so far as they may trespass on the area heretofore proscribed by the courts.
The motion to dismiss, on rehearing, is denied.