United States Tour Operators Ass'n v. Trans World Airlines, Inc.

556 F.2d 126, 40 A.L.R. Fed. 733
CourtCourt of Appeals for the Second Circuit
DecidedMay 27, 1977
DocketNos. 1197, 1421, Dockets 77-7134, 77-7141
StatusPublished
Cited by28 cases

This text of 556 F.2d 126 (United States Tour Operators Ass'n v. Trans World Airlines, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Tour Operators Ass'n v. Trans World Airlines, Inc., 556 F.2d 126, 40 A.L.R. Fed. 733 (2d Cir. 1977).

Opinion

FEINBERG, Circuit Judge:

Defendants Trans World Airlines, Inc. (TWA) and Travellers Air Service, Inc. (TAS) appeal from a decision of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., J., denying their motion to dismiss an action [128]*128brought by plaintiffs, five charter air tour operators and a trade association. The complaint seeks injunctive relief against defendants on the ground that TWA’s control over TAS, also an air tour operator, violates section 401(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1371(a).1 In support of their motions to dismiss, defendants argued that the Civil Aeronautics Board (CAB) had primary jurisdiction over plaintiffs’ complaint. The CAB filed an amicus brief in the district court in opposition to the motions to dismiss, on the ground that the doctrine of primary jurisdiction is not applicable to the issues raised in the complaint.2 Judge Stewart agreed, and denied defendants’ motion to dismiss. They appealed, and obtained in this court a stay of all proceedings in’ the district court, pending disposition of the appeal.3 We have heard argument on plaintiffs’ motion to dismiss the appeal and on the merits of defendants’ appeal, as well. We grant the motion to dismiss the appeal.

The order of the district court under review overruled defendants’ argument that the CAB had primary jurisdiction over plaintiffs’ complaint and denied motion, based on that contention, to dismiss the complaint. The order did not dispose of the case. It did not even dispose of all the other arguments appellants made as to why the complaint should be dismissed.4 Such an order is not ordinarily considered sufficiently final to allow an appeal from it as a matter of right. Appellants claim, however, that they may appeal under the rule established by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

In Cohen, the Court held that denial of a motion to compel security for costs presented “a serious and unsettled question,’’ which fell “in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546, 69 S.Ct. at 1225-1226. Attempts to come within the scope of the Cohen doctrine have been legion, but we have not been receptive to an expansive reading of this exception to the final judgment rule. See, e. g., UAW v. National Caucus of Labor Committees, 525 F.2d 323 (2d Cir. 1975); West v. Zurhorst, 425 F.2d 919 (2d Cir. 1970); Donlon Industries, Inc. v. Forte, 402 F.2d 935, 937 (2d Cir. 1968). The reasons for the final judgment rule, see American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 280 (2d Cir. 1967), and our reluctance to depart from it hardly need explanation again, particularly at a time of swollen appellate dockets. We have repeatedly said that “Cohen may not be abused by indiscriminate extension.” UAW v. National Caucus of Labor Committees, supra, 525 F.2d at 325, and that this exception to the usual rule of non-appealability for interlocutory orders “must be kept within narrow bounds.” Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int’l, Inc., 455 F.2d 770, 773 (2d Cir. 1972).

With these considerations in mind, we turn to the issue before us. Until a few years ago, it would have been reasonably clear that defendants could not appeal from the orders here involved, in view of Allied Air Freight, Inc. v. Pan American World [129]*129Airways, Inc., 340 F.2d 160 (2d Cir.) (per curiam), cert. denied, 381 U.S. 924, 85 S.Ct. 1560,14 L.Ed.2d 683 (1965). In that case, a panel of this court, including the present Chief Judge, dismissed an appeal from a district court order that stayed an antitrust action until the CAB decided whether plaintiffs’ claims fell within its primary jurisdiction. The panel pointed out, among other things, that “the stay order, as well as not adjudicating upon plaintiffs’ [antitrust] claims, does not finally dispose of the district court suit or necessarily preclude a sometime trial in that forum of plaintiffs’ claims.” Id. at 161. While the case is not on all fours with the one now before us, it is similar since the legal issue on appeal was whether the doctrine of primary jurisdiction required the CAB to consider plaintiffs’ claims before a court did.

Some six years later, in an unrelated case, the CAB sued various travel agencies in the federal district court, seeking injunctive relief against alleged violations of the Federal Aviation Act of 1958. The defendant travel agencies moved to dismiss or stay the district court proceedings on the ground that the doctrine of primary jurisdiction required the CAB to determine whether defendants were indirect air carriers or simply ticket agencies. The district judge granted the stay, as the judge had in Allied Air Freight, and the CAB appealed. A panel of this court, over a vigorous dissent by Judge Mulligan, held that order appealable under the Cohen doctrine because “[t]he issue of whether the doctrine of primary jurisdiction should be invoked is collateral to the ultimate issues of this case, the issue is vital to CAB efforts to secure speedy enforcement of the Federal Aviation Act and the Board’s regulations, and the issue is too important to be deferred until the entire case is decided.” CAB v. Aeromatic Travel Corp., 489 F.2d 251, 253 (2d Cir. 1974). The majority opinion did not otherwise discuss the question of appealability; nor did it mention this court’s decision in Allied Air Freight, supra, although it was the focus of the dissenting judge’s opinion.

Appellants apparently believe that Aeromatic held that every interlocutory order involving the issue of primary jurisdiction is per se appealable under the Cohen rule. Whatever the merits of the decision in Aeromatic, it did not go that far and in at least one respect its reasoning hurts, rather than helps, appellants’ claim of appealability. In Aeromatic, the district court had granted the motion to stay court proceedings, a ruling which the majority thought was fatal to the CAB’s efforts to avail itself of the “speedy enforcement” available only from the district court. The situation here is the reverse.

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Bluebook (online)
556 F.2d 126, 40 A.L.R. Fed. 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-tour-operators-assn-v-trans-world-airlines-inc-ca2-1977.