APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D. N.J. Civil No. 74-463).
Adams, Hunter and Garth, Circuit Judges.
In this case we must decide whether airline passengers who were furnished allegedly inferior ground accommodations in a tour, sponsored by a Civil Aeronautics Board (CAB) regulated air carrier, can maintain an action against the air carrier on the basis of 49 U.S.C. § 1374(b) and § 1381, § 404 and § 411 of the Federal Aviation Act.*fn1 Given the facts of this case, we hold that a private cause of action may not be implied from these statutes. Accordingly, we affirm the district court's Fed. R. Civ. P. 12(b)(6) dismissal of the complaint for failure to state a claim upon which relief can be granted.*fn2
Plaintiff-appellants were members of a European tour sponsored by defendant airline, Trans World Airlines, Inc. (TWA) and defendant travel agency, Melia Tours, Inc. They allege that TWA and Melia supplied services different than those warranted in literature, advertising the "Flamenco" tour of Spain and Portugal and that by this advertising, defendants fraudulently induced them to participate in the tour. Plaintiffs specifically charge that their "first-class" hotel accommodations were inferior to tourist accommodations provided to other members of the tour at lesser cost; that pre-planned inter-city travel services were inadequate, that pre-arranged reservations were broken or not honored; and that promised tour guides, hosts and hostesses were not available.
As the basis of the suit,*fn3 plaintiff-appellants relied on two sections of the Federal Aviation Act. 49 U.S.C. § 1374(b), § 404 of the Act, specifically prohibits discrimination by any regulated air carrier. 49 U.S.C. § 1381, § 411 of the Act, in turn, gives the CAB power to investigate and enjoin unfair or deceptive practices. Since neither section provides for private enforcement, plaintiffs sought to imply a private cause of action for damages from these statutes. The district court held that it would be inappropriate to imply a private remedy from § 1374(b) on the facts of this case.*fn4 In reaching this result, the court distinguished a series of precedents in which a private remedy had been implied from § 1374(b). Without further consideration of the issues raised by § 1381, the district court granted defendant-appellees Rule 12(b)(6) motion to dismiss.*fn5 The instant appeal followed.
In determining whether a private remedy is implicit in a statute not expressly providing for one, the Supreme Court has indicated that at least four factors must be considered. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26, 43 U.S.L.W. 4773, 4776 (1975).*fn6 Specifically, a court must consider: first, whether the statute was designed to protect a class of persons into which plaintiff falls from the harm plaintiff has suffered; second, whether there is any indication of legislative intent to create or deny a private remedy; third, whether implication of a private remedy would be consistent with the purposes of the legislative scheme; and fourth, whether the cause of action is one traditionally relegated to state law such that inference of a federal cause of action would be inappropriate. See also: National Rail Passenger Corp. v. National Association of Rail Passengers, 414 U.S. 453, 38 L. Ed. 2d 646, 94 S. Ct. 690 (1974) (Amtrak)*fn7 and Securities Investor Protection Corporation v. Barbour, 421 U.S. 412, 95 S. Ct. 1733, 44 L. Ed. 2d 263, 43 U.S.L.W. 4630 (1975) (SIPC).*fn8
49 U.S.C. § 1374(b) provides:
No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, or locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever. (Emphasis added).
On its face, the statute prohibits an air carrier from unjustly discriminating or acting with prejudice against any person in air transportation. Although § 1374(b) is silent about private enforcement, courts have implied a private remedy for a variety of acts by the air carrier, including racial ...