The opinion of the court was delivered by: JOHN H. PRATT
The case before the Court involves a constitutional challenge to a provision of the International Air Transportation Competition Act of 1979 ("International Competition Act"), P.L. 96-192, 94 Stat. 35, 48-49 (1980), that limits airline operations at Love Field, one of the Dallas-area airports. The provision, known as the Wright Amendment, restricts to Texas or its four contiguous states commercial passenger air traffic departing from or arriving at Love Field. All parties have filed motions for summary judgment. Because we find that the Wright Amendment is permissible economic regulation which does not violate either the Port Preference Clause or the First Amendment of the United States Constitution or the right to interstate travel, we grant defendants' and intervenors' motions for summary judgment and deny plaintiffs'.
The Wright Amendment, named for its sponsor, Jim Wright, then majority leader of the House of Representatives, was added to the International Competition Act in order to resolve a long-standing dispute between the cities of Dallas and Fort Worth, Texas over the question concerning which of these two cities, closely related geographically, would have the regional airport.
Love Field is located 5 - 6 miles from Dallas, whereas Dallas-Fort International Airport ("DFW"), the newer regional airport, is approximately 18 miles from the center of Dallas.
The Wright Amendment, Section 29 of the International Competition Act, represents a legislative determination that DFW should be the long-haul, major airport in the area. The Wright Amendment prohibits any air carrier from offering interstate flights with aircraft carrying more than 56 people at Love Field unless (a) the service existed on November 1, 1979, or (b) the service is provided by a flight to or from a point inside Texas and the four states bordering on Texas (Louisiana, Arkansas, Oklahoma, and New Mexico) ("Love Field Service Area").
Airlines may not operate flights or provide through service from Love Field to a point outside the Love Field Service Area, and may not allow passengers to interline on Love Field flights.
The Amendment states that airlines may not "offer for sale" transportation from Love Field to a point outside the Love Field Service Area. Department regulations prohibit an airline from advertising or volunteering information on service from Love Field to areas outside the Love Field Service Area, but do not prohibit an airline or travel agent from providing such information when a traveller asks for it.
The Wright Amendment has been challenged before and has survived. As recently as May 9, 1991, the Fifth Circuit ruled that the Amendment did not violate the Constitution in Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied, 116 L. Ed. 2d 242, 112 S. Ct. 298 (1991).
Additionally, this Circuit has previously upheld the validity of the Department of Transportation ("DOT") Order that implements the Amendment.
See Continental Air Lines, Inc. v. Department of Transportation, 843 F.2d 1444 (D.C. Cir. 1988).
Before reaching the merits, we consider defendants' argument that plaintiffs lack standing. Plaintiffs in this action include the State of Kansas; the Wichita Airport Authority; Central College, Inc. (a travel agency); and nine individuals.
Defendants include the United States of America; Samuel Skinner; the United States DOT; John V. Coleman; and the Office of Aviation Analysis. Additionally, Dallas-Fort Worth International Airport Board and American Airlines, Inc. have been permitted to intervene.
When a court considers the issue of standing on a motion for summary judgment, the plaintiff must submit affidavits that indicate that a genuine issue of fact exists on this issue. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S. Ct. 3177, 3184, 111 L. Ed. 2d 695 (1990). A party who invokes the court's authority must show that the party "personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). The injury must be traceable to the challenged action and must be remediable by a favorable decision. Id. at 472. For the purposes of determining standing, we must assume the challenged conduct is unconstitutional or otherwise contrary to law. See Warth v. Seldin, 422 U.S. 490, 502, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Cramer v. Skinner, 931 F.2d 1020, 1025 (5th Cir.), cert. denied, 116 L. Ed. 2d 242, 112 S. Ct. 298 (1991).
Defendants challenge the standing of ten of the twelve plaintiffs to bring this case, but do not question the standing of the remaining two, Bebe Daniels and Bernie Dworkin. If either of these plaintiffs has standing to bring this case, even if all ten of the other plaintiffs lack standing, this Court still has jurisdiction to "entertain those common issues presented by all plaintiffs." General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 402 n. 22, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982). See also Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160, 70 L. Ed. 2d 309, 102 S. Ct. 205 (1981); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 n. 9, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). Accordingly, we now turn to whether or not Daniels and Dworkin have asserted an injury sufficient to support standing.
Both Daniels and Dworkin have asserted three discrete injuries: 1) the deprivation of their First Amendment right to hear; 2) the deprivation of their fundamental right to travel; and 3) economic injury. Plaintiffs can establish standing if they can show a "substantial probability" that even one of their asserted injuries will be redressed by a favorable ruling. See Larson v. Valente, 456 U.S. 228, 243 n. 15, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982)
Bebe Daniels is a 80-year old widow who resides in close proximity to Love Field. See Declaration of Bebe Daniels in support of Plaintiffs' Motion for Summary Judgment, or in the Alternative, for Partial Summary Adjudication ("Daniels Decl.") P 3. Daniels claims that on her annual visit to Chicago, she travels via Love Field on Southwest Airlines because it is the least expensive carrier serving Dallas and Chicago. She alleges that on visits in 1989 and 1990 she was forced to disembark in Tulsa, Oklahoma, retrieve and recheck her luggage, and wait for at least 45 minutes before she could continue on her trip, because of the limitations imposed by the Wright Amendment. She further claims that on one occasion when returning from Chicago, she had to disembark the aircraft in Tulsa, even though the plane was continuing to her destination in Love Field. She states that "Southwest's employees politely informed me that they were forbidden by the Wright Amendment from allowing me to board Flight 43, because I had just arrived on a flight (i.e., Flight 953) which had crossed the Restricted Borders." Daniels Decl. P 17. Consequently, she had to await the next flight to Love Field, which left one hour and five minutes later. Daniels Decl. P 19.
Bernie Dworkin, a resident of Dallas who is a frequent traveler outside of the Love Field Service Area, alleges that he believes Southwest provides the most inexpensive fares and that because of the Wright Amendment he is forced to either pay more to use a carrier that operates out of DFW or face "detention" at an intermediate airport. Declaration of Bernie Dworkin in Support of plaintiffs' Motion for Summary Judgment, or in the Alternative, for Partial Summary Adjudication ("Dworkin Decl.") P 8.
Both Daniels and Dworkin assert that they are dependent on airline personnel, travel agents, and printed media published by airlines in planning their trips and that the publication of single-sum fares and published schedules would help their travel planning. Daniels Decl. PP 21-22; Dworkin Decl. PP 14-15.
Plaintiffs assert that the Wright Amendment regulates the content of protected commercial speech and violates the right of individuals to receive such information. See Complaint P 86. Daniels and Dworkin are limited by the Wright Amendment from learning of the availability of double ticketed service whereby they could fly from Love Field to a point outside the Love Field Service Area. They are not permitted to be told the total cost of such a trip as a single sum. The Wright Amendment also prevents the airline guide publication of connecting flight schedules, thereby preventing those passengers who know of the possibility of double ticketing from expediently planning their trip.
The abridgement of the First Amendment right to receive information is a judicially cognisable injury. See Virginia State Board of pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976). As the Fifth Circuit noted in Cramer v. Skinner, the plaintiffs are "affected by the Love Field amendment's restrictions whenever [they plan] a trip beyond the Love Field service area." Cramer, 931 F.2d at 1027. The Fifth Circuit found that this injury placed the First Amendment claim in a "concrete factual context" that was conducive to realistic judicial appraisal. Id. (quoting Valley Forge Christian College, 454 U.S. at 472.) We agree. Daniels and Dworkin have established that at the least they are hindered in their receipt of truthful information because of restrictions imposed by the Wright Amendment. Consequently, we find, as the Fifth Circuit did, that Dworkin and Daniels have alleged a sufficient injury to assert standing to litigate the First Amendment claim.
Assuming for the purposes of this analysis that the Wright Amendment and the DOT regulations do violate the plaintiffs' First Amendment right to receive information, we now look to whether a favorable ruling would redress the injury.
Southwest has indicated that in the absence of the statute it would advertise both the availability and the cost of service between Love Field and points beyond the Love Field Service Area. See Supplemental Statement of Material Facts as to Which Plaintiffs Contend There is No Genuine Issue ("Supplemental Facts")§ ac. Plaintiffs then would be able to comparison shop more easily, and would encounter greater flexibility in planning their travel. Thus, Dworkin's and Daniels' injuries are fairly traceable to the Wright Amendment. There is a substantial probability that a favorable decision would redress their injury.
B. Right to Interstate Travel
It has long been settled that the Constitution protects the right to travel interstate. See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986). Plaintiffs Dworkin and Daniels allege that they have suffered an injury in fact because they have been "detained" at intermediate airports as a result of the Wright Amendment's prohibition on travel from beyond the Love Field Service Area to Love Field. Their declarations allege specific trips where they were required to disembark in an intermediate airport, reclaim luggage, and wait more than 45 minutes before they were permitted to continue on their journey to Love Field, even though there was an earlier flight that they could have taken. Dworkin also alleges an injury insomuch as he was denied access to a flight open to all passengers other than those from Love Field. We find that this is a sufficient actual injury that is fairly traceable to the challenged amendment. If not for the Wright Amendment, Dworkin and Daniels would not have had to reclaim baggage or take a connecting service flight other than the most convenient.