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December 22, 1971


Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

This is a purported class action, alleging that the student and youth fares of defendant airlines constitute discrimination in contravention of the Federal Aviation Act, 49 U.S.C. § 1374(b); and the Civil Rights Act, 42 U.S.C. § 1985(3). Plaintiff, Sandra Eisman, is twenty-eight years old and claims to represent a class of persons over the age of twenty-six who are not students and who have purchased or will purchase in the future tickets for international air travel. Plaintiff, David Eisman, age two years and seven months, claims to represent a class of persons between the ages of two and twelve years who are not students and who have purchased or will purchase in the future tickets for international air travel. The fourteen defendants are foreign and domestic airlines, engaged in international air passenger transportation between the United States and various cities of Europe and Mexico.

 In June of 1971, the Civil Aeronautics Board (C.A.B.) granted Special Tariff Permission Applications by the domestic and foreign air carriers to file student and youth fare tariffs governing international air fares between points in the United States and Europe, as well as Mexico. Each tariff filed by the foreign air carriers was filed pursuant to orders from their respective national governments, while those filed by the domestic air carriers were pursuant to an order of the C.A.B. dated April 15, 1971, Order 71-4-103, Docket 22628, authorizing domestic airlines to establish competitive fares with the foreign airlines. These students and youth fares are substantially less than the regular economy class fares charged by the same airlines. In June of 1971, the Member Carriers of the National Air Carriers Association filed a complaint with the C.A.B. challenging the student and youth fares of some of the defendants. Shortly thereafter, Dennis Eisman, counsel for plaintiffs, wrote the C.A.B. complaining that the student and youth fares constituted unjust price discrimination. To this letter, the C.A.B. responded that it could not deal with the letter as a formal complaint, since copies thereof were not served directly on the named carriers. Plaintiffs thereafter filed suit in this Court, challenging these student and youth fares. On September 1, 1971, subsequent to the filing of plaintiffs' complaint, the C.A.B. instituted an investigation of the fares involved in this action "in order to determine if the youth and student fares at issue do constitute an unjust discrimination".

 Plaintiffs' challenge to the student and youth fares is based on two separate grounds. Plaintiffs' first cause of action is based on Section 404(b) of the Federal Aviation Act of 1958, 49 U.S.C. § 1374(b) which 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, 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."

 In an alternative cause of action, plaintiffs challenge the student and youth fares on the ground that such fares constitute a deprivation of their civil rights under 42 U.S.C. § 1985(3), which provides in pertinent part:

"If two or more persons in any State or Territory conspire * * * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; * * * in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."

 Before the Court are the motions of defendant airlines to dismiss the complaint for lack of jurisdiction over the subject-matter and for failure to state a claim upon which relief can be granted.

 At the threshold, we must determine the propriety of the class action in this case. Each plaintiff claims to represent separate age groups. Plaintiff, Sandra Eisman, claims to represent all persons over the age of 26 years who are not students, and plaintiff, David Eisman, claims to represent all persons between the ages of 2 and 12 years who are not students. Within each age class, each plaintiff further claims to represent two distinct classes: (1) those who have in the past purchased tickets from the defendant airlines, and (2) those who will in the future purchase tickets from the defendant airlines. We conclude that plaintiffs may not represent either class on two grounds. In the first place, in order to properly institute a class action under Federal Rule of Civil Procedure 23, it is well established that a plaintiff must be a member of the class which he purports to represent. Hall v. Beals, 396 U.S. 45, 49, 24 L. Ed. 2d 214, 90 S. Ct. 200 (1969); Bailey v. Patterson, 369 U.S. 31, 32-33, 7 L. Ed. 2d 512, 82 S. Ct. 549 (1962). In the instant case, no allegation can be found in the complaint that either plaintiff has ever purchased an airline ticket from defendants. Plaintiffs, therefore, cannot maintain a class action on behalf of those who have, in fact, purchased tickets from the defendants. Secondly, as to plaintiffs' claim that they represent those who will purchase tickets from the defendants in the future, we conclude that it is impossible for this Court to determine who or how many plaintiffs would fall within this amorphous class. In order to maintain a class action under Rule 23, the members of a class must be capable of definite identification as either being in or out of it. Giordano v. R.C.A., 183 F.2d 558 (3rd Cir. 1950). The courts have dismissed class actions where the vague and indefinite description of the purported class depends on the subjective state of mind of a particular individual, rendering it difficult, if not impossible, for the Court to determine whether any given individual is within or without the alleged class. Chaffee v. Johnson, 229 F. Supp. 445, 448 (S.D. Miss. 1964), aff'd. 352 F.2d 514 (5th Cir. 1965), cert. denied, 384 U.S. 956, 16 L. Ed. 2d 553, 86 S. Ct. 1582 (1966). We, therefore, conclude that this action is not properly maintainable as a class action under Rule 23.

 A question of plaintiffs' standing to bring this suit arises in that there is no allegation anywhere which suggests that plaintiffs ever actually purchased an airline ticket to Europe or Mexico since the youth fares have been in effect. Since this issue was raised by defendants only superficially, we will undertake to consider their primary arguments.

 II -- The Primary Jurisdiction of the C.A.B.

 The doctrine of primary jurisdiction is concerned with promoting proper relationships between the courts and administrative agencies. Primary jurisdiction applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. In such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. United States v. Western Pacific R. Co., 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956).

 In the cases discussing the doctrine of primary jurisdiction, the courts have emphasized that two policy factors are the underlying bases for its application: (1) the desirable uniformity which would obtain if a specialized agency initially passed on certain types of administrative questions, Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 51 L. Ed. 553, 27 S. Ct. 350 (1907); and (2) the expert and specialized knowledge of the agencies involved, Far East Conference v. United States, 342 U.S. 570, 96 L. Ed. 576, 72 S. Ct. 492 (1952). The most definitive statement of the policy reasons underlying primary jurisdiction is found in Far East Conference v. United States, supra, at 574-575, where the Supreme Court stated:

" (It is) now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure."

 See also International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO v. Hardeman, 401 U.S. 233, 238, 28 L. Ed. 2d 10, 91 S. Ct. 609 (1971); United States v. Western Pacific R. Co., 352 U.S. 59, 64-65, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956). Whether the necessity for uniformity in international air fares and the administrative expertise of the C.A.B. mandate our referral of this case to that agency for its initial determination and whether the doctrine of primary jurisdiction is applicable require discussion.

 A. Uniformity

 In the instant case, plaintiffs have proceeded against fourteen airlines, while in the C.A.B. proceeding, that agency has undertaken a comprehensive investigation of the youth fares of all airlines. If this Court were to strike down the student and youth fares of defendants at this point, and the C.A.B. were to subsequently sustain such fares, a divergency of fares charged among the airlines would result. In a similar situation, the Supreme Court directed that primary jurisdiction was vested in the administrative agency, holding that:

"This must be, because, if the power existed in both courts and the Commission to originally hear complaints on this subject, there might be a divergence between the action of the Commission and the decision of a court. In other words, the established schedule might be found reasonable by the Commission in the first instance and unreasonable by a court acting originally, and thus a conflict would arise which would render the ...

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