The opinion of the court was delivered by: RICHEY
UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY
This action arose from the denied boarding of the plaintiff Ralph Nader from Allegheny Airlines Flight 864 on April 28, 1972. A trial was held before the Court, sitting without a jury, on September 4 and 10, 1973, and a decision awarding nominal and punitive damages to plaintiff Connecticut Citizens Action Group (CCAG) and compensatory and punitive damages to plaintiff Nader was filed on October 18, 1973. 365 F. Supp. 128. On appeal by the defendant, the Court of Appeals reversed in part and set aside the Court's 1973 judgment. Nader v. Allegheny Airlines, Inc., 167 U.S. App. D.C. 350, 512 F.2d 527 (1975). That decision, insofar as it applied the doctrine of primary jurisdiction to stay plaintiffs' common law misrepresentation claims, was reversed by the Supreme Court in June 1976, 426 U.S. 290, 48 L. Ed. 2d 643, 96 S. Ct. 1978. In short, the Supreme Court upheld this Court's determination that a bumped passenger, such as plaintiff Nader, need not await a determination by the Civil Aeronautics Board (CAB) before proceeding with his claim of common-law misrepresentation in the federal courts. Subsequently, the Court of Appeals entered an amended judgment on November 10, 1976.
The case is now on remand to this Court for final disposition in accordance with the decisions of the reviewing courts. Additional discovery has been undertaken and additional exhibits pertaining to the issues remaining for decision have been submitted. Upon review of the entire record herein, and in light of the opinions of the Court of Appeals and the Supreme Court, the Court now makes the following Findings of Fact and Conclusions of Law on Remand. The Findings of Fact and Conclusions of Law filed by this Court on October 18, 1973, are hereby reaffirmed except to the extent they are inconsistent herewith or with the amended judgment of the Court of Appeals.
I. Plaintiff Nader's Claim of a Statutory Violation
1. Section 404(b) of the Federal Aviation Act, 49 U.S.C. § 1374(b) (1970), provides:
Neither party disputes that this nondiscrimination provision may be enforced by a private right of action, Fitzgerald v. Pan American World Airways, Inc., 229 F.2d 499 (2d Cir. 1956); Wills v. Trans World Airlines, Inc., 200 F. Supp. 360 (S.D. Cal. 1961), and an aggrieved party may recover compensatory damages in a suit brought in the federal courts without prior reference to the CAB.
2. To recover damages pursuant to a Section 404(b) action, an allegedly oversold passenger must first show that the defendant air carrier refused to honor his boarding priority. It is undisputed herein that plaintiff Nader held a confirmed reservation on defendant Allegheny's Flight 864 from Washington, D.C. to Hartford, Connecticut, on April 28, 1972, that he complied with Allegheny's preboarding conditions, that he was entitled to a seat, and that the reservation was not honored by defendant Allegheny because the flight had been overbooked and all seats were occupied. Thus, as the Court of Appeals recognized, plaintiff Nader's priority was undeniably dishonored, and plaintiff therefore established a prima facie statutory violation. 512 F.2d at 539.
3. Once the plaintiff has established a prima facie statutory violation, as plaintiff Nader has done here, "the burden of proving the priority rules and compliance therewith shifts to the carrier." 512 F.2d at 538. Thus, unless defendant Allegheny proves by a preponderance of the evidence that it complied with its established boarding priority rules in boarding Flight 864 on April 28, 1972, plaintiff is entitled to judgment for compensatory damages under Section 404(b).
4. The Court finds that defendant Allegheny has proved by a preponderance of the evidence that the appropriate boarding rule to be applied to Flight 864 on April 28, 1972, a gate check-in flight, is found in paragraph 5 of defendant's Passenger Service Manual, Series 6-100. This rule provides:
If the oversale is not known until the flight is being boarded, (this applies particularly where gate check-in is used) the last passenger to arrive at the gate is the oversale and is not permitted to board. Selection is automatic. Do not delay the flight seeking a passenger who would be least inconvenienced.
5. The Court also finds that defendant Allegheny has proved by a preponderance of the evidence that its boarding priority rules further require gate agents to board all passengers holding tickets for the flight with an "OK" written in the "status" column of the ticket, which signifies that the ticketholders have confirmed reservations, regardless of what the computer printout indicates about their status. If a ticketholder does not have an "OK" ticket, but the ticketholder's confirmed reservation status can be ascertained by other means, such as by checking the computerized Passenger Name List, that passenger, too, is to be boarded according to Allegheny's rules.
Upon consideration of the entire record herein, the Court finds that Mr. McDonald's testimony is neither credible nor trustworthy on the issue of his inspection of each individual ticket to ensure that all boarded passengers held confirmed reservations. Mr. McDonald's testimony on this issue conflicts with two internal Allegheny memoranda (Plaintiffs' Exhibits 4 & 5), which were prepared within a week of the overbooking here in issue and which indicate that at least two persons boarded on Flight 864 held lower priorities than plaintiff Nader (one waitlist and one who had been previously cancelled as a no-show). While defendant contends that these memoranda do not contradict Mr. McDonald's testimony because the tickets of these lower-priority passengers may have been marked "OK" notwithstanding their recorded status -- presumably as a result of a ticketing error -- the Court finds this argument wholly unpersuasive. In view of the failure of defendant to introduce into evidence the actual tickets of the passengers in question, the Court cannot conclude that defendant has sustained its burden of proof with regard to the speculative existence of an "OK" marking on the tickets in question. Moreover, the Court is not persuaded that Mr. McDonald actually, or even could have, inspected all the tickets for Flight 864 in the short time available and under the pressures extant at that time. Accordingly, the Court finds that defendant Allegheny has failed to sustain its burden of proving that it complied with its boarding priority rules.
7. The Court further finds that plaintiff Nader has sustained his burden of proving that Allegheny's failure to comply with its boarding priority rules proximately caused his damages. While there were apparently two oversold passengers who had arrived at the gate prior to plaintiff Nader and only two boarding discrepancies, it is clear from the entire record that at least one of the two "prior" oversold passengers would have permitted plaintiff Nader to board Flight 864 if the two boarding discrepancies had properly been discovered. Defendant offered no evidence to the contrary, and the Court therefore concludes that plaintiff proved by a preponderance of the evidence that he would have been boarded on Flight 864 if the boarding discrepancies had been discovered.
8. In view of the foregoing, the Court must conclude that defendant Allegheny violated section 404(b) of the Federal Aviation Act by its failure to board plaintiff Nader in accordance with defendant's own established boarding priority rules, and plaintiff Nader is therefore entitled to recover compensatory damages in the amount of $ 10.00 -- $ 7.00 for long-distance telephone calls and $ 3.00 for the extra cost of a ticket to Boston.
II. Plaintiff Nader's Fraudulent Misrepresentation Claim
9. This Court's judgment in favor of plaintiff Nader on his claim of fraudulent misrepresentation has been vacated, and this Court has been directed by the United States Court of Appeals for the District of Columbia Circuit to "reconsider the issue of fraudulent misrepresentation in light of the opinions of the Supreme Court" and of the Court ...