Nader v. Allegheny Airlines, Inc. – Oral Argument – March 24, 1976

Media for Nader v. Allegheny Airlines, Inc.

Audio Transcription for Opinion Announcement – June 07, 1976 in Nader v. Allegheny Airlines, Inc.

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Warren E. Burger:

We will hear arguments next in 75-455, Nader against Allegheny Airlines.

Mr. Robertson, you may proceed when you are ready.

Reuben B. Robertson, III:

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

On April 28th, 1972, the petitioner Ralph Nader, arrived at National Airport to take an Allegheny Airlines flight to Hartford, Connecticut.

When he arrived at the boarding gate and plenty of time of the flight, he had a confirmed reservation and had a proper ticket for the flight.

But the agent told him that the plane was already full and he was not going to be able to get on.

Allegheny had overbooked this flight and it had oversold it and in the parlance of the airline Industry, Mr. Nader had been bumped.

Just like 900 other people had been bumped that very month by Allegheny Airlines and 16,000 other people had been bumped during a period of 3-and-half years.

Warren E. Burger:

Mr. Robertson, this is not relevant to this case but the reason, airlines bump people is because a lot of people who make reservations do not show.

They tried for awhile to impose a penalty for that.

It did not —

Reuben B. Robertson, III:

Yes, it did Your Honor.

Warren E. Burger:

But the Civil Aeronautics Board–

Reuben B. Robertson, III:

Civil Aeronautics Board approved an industry plan for a no-show penalty but the Airlines did not like it and the public apparently did not like it.

All of those–

Warren E. Burger:

No-shows, who were penalized do not like.

Reuben B. Robertson, III:

If the no-shows were penalized–

Warren E. Burger:

But I suspect that there were a no-show program penalty,your client would like that.

Reuben B. Robertson, III:

Well, one of the problem with the no-show plan, that was tried and they have never been able to work this out, is that apparently a lot of the no-shows really are not the fault of the passenger and there is apparently a minority of individual passengers who simply neglect to cancel their reservation or do not show up.

A lot of the no-shows are caused by mis-connecting flights for example.

Traffic jams and this is particularly so with the security apparatus at the airport now, people get hung up trying to get to the plane.

So, there are lots of mitigating factors that have made the no-show penalty concept a difficult one to work out for the Industry.

Warren E. Burger:

It is enough to spoil your case.

Reuben B. Robertson, III:

I do not think so.

The problem here is not that there was overbooking but that when Allegheny told Mr. Nader that he had a confirmed reservation, it did not give him the most important piece of information of all which was that there was a significant risk that he might be bumped from the flight.

And if he had known that in advance, he could have protected himself.

He could have arrived earlier to the airport than he did to improve his chances of getting on the plane.

He could have taken an earlier flight or could even have taken a train to Hartford.

So it is not the fact that the Airlines overbooked that is involved here but the fact that Allegheny conceals this practice and the fact that — and conceals the fact that bumping results from it.

Reuben B. Robertson, III:

When a passenger finds out, it is simply too late for them to do anything.

And when Mr. Nader found out about this, there was no way he could get to Hartford in time for his commitment, speaking engagement without the window and his host Hartford were embarrassed and discredited in their fund-raising efforts.

The thousands of people who were coming out to hear him during the lunch hour went away with disappointment.

As a result, the petitioner filed a suit for damages against Allegheny and two claims were pressed in this action.

First, there was a statutory claim under the Aviation Act, alleging discrimination in not honoring his reservation priority, and secondly, and this is a claim that is involved here.

There was a tort claim of fraudulent misrepresentation arising under the Common Law of the District of Columbia.

And after a trial on the merits, the District Court found in petitioner’s favor on both of these he wanted compensatory and punitive damages.

On Appeal, the D.C. Circuit issued a lengthy opinion which it reversed and remanded the judgment of the District Court.

The only issue of that decision that had issue here involves its holding on the misrepresentation claim.

As to which the Appellate Court divided 2:1.

The majority held that the Common Law misrepresentation claim should have been referred for an initial determination by the Civil Aeronautics Board and it held that regardless of the language in the Federal Aviation Act, that preserves Common Law remedies the CAB must be given an opportunity to approve conduct by an airline that otherwise would be a tortuous misrepresentation.

And if it does so the majority held, any Common Law right of action to recover damages for an injury that is caused by that conduct would be extinguished.

And Judge Fay dissented on this point.

He said that this result that was not called for by the Aviation Act and in fact was contrary to that Act.

And that is the issue before this Court.

The Federal Aviation Act —

John Paul Stevens:

Before you get into your argument, could I just pose this question.

As I understood, neither Judge Fay nor the majority actually decided whether they are was a Common Law cause of action, is that correct?

Reuben B. Robertson, III:

That is correct Your Honor but the District Court–

John Paul Stevens:

The court followed — just to get your request in mind that if you should prevail the relief you ask is that the matter be sent back to the Court of Appeals to decide that issue.

Reuben B. Robertson, III:

I believe that would be correct Your Honor.

John Paul Stevens:

I see.

Reuben B. Robertson, III:

The Federal Aviation Act of course is the organic statute that sets forth in considerable detail, the powers that the Civil Aeronautics Board has to regulate the Airlines Industry.

There are two sections of this Act that are directly involved in this case.

First is Section 411.

This section says that if the CAB finds that the public interest would be served, it may investigate and determine whether Airlines or ticket agents are engaging in unfair, deceptive practices or unfair methods of competition.

And if so, the CAB has cease and desist power to bring that conduct to an end.

Byron R. White:

(Inaudible) under the federal law?

Reuben B. Robertson, III:

The judgment under the Federal Law was remanded for additional findings, relating to the details of what happened at the boarding gate and we are going to go back to the District Court in due course and try to ascertain what those proper findings should be under the–

Byron R. White:

Judgment was — the ruling was not that you could not get a judgment under Federal Law.

Reuben B. Robertson, III:

That is right Your Honor.

The ruling was not that we could not, in fact the ruling said that there was a possibility of a judgment there.

Potter Stewart:

(Inaudible) what the facts turn out to be?

Reuben B. Robertson, III:

How the facts came out.

Yes.

Now Section 411 does not say that the CAB can approve any unfair methods of competition and it does not say that it can approve unfair or deceptive practices.

It does not say that the Board can immunize any practices from the Common Law liability.

The next section that is relevant here is 1106, which says as follows, nothing in this Act shall in anyway abridge or alter the remedies now existing at common law or by statute but the provisions of this Act are in addition to such remedies.

In other words, this means that provisions like 411, which create new remedies to deal with unfair practices and other kinds of problems in the airline Industry.

Those remedies do not take away the old remedies that might exist under State Law.

The decision below simply ignores the Section 1106.

The majority held that the Common Law remedies for fraud and deceit cannot remain totally unaffected by the Federal Aviation Act.

But Section 1106 explicitly says that the provisions of the Act are in addition to common law remedies.

Not that they undercut or restrict them in any way.

Potter Stewart:

But the Board had the power to order the airline to behave just the way it did here.

Reuben B. Robertson, III:

I do not believe that the Board has any such power to authorize any airline to conceal material faction of public or to deceive any passenger.

Potter Stewart:

They had the power to authorize the airline or order the airline to establish a no-show policy?

Reuben B. Robertson, III:

Yes Your Honor.

Potter Stewart:

Including overbooking?

Reuben B. Robertson, III:

Well, the point is that we are not complaining about overbooking here.

What we are complaining about is that they do not disclose to you the materiality that–

Potter Stewart:

I understand your complaint.

I just wondered if you thought the Board had the power to order to the airline to overbook.

Reuben B. Robertson, III:

Yes.

As a matter of fact there–

Potter Stewart:

(Inaudible)

Reuben B. Robertson, III:

There is a plan under which the Board has approved a program that in effect is overbooking.

This is the program of Eastern Airlines–

Potter Stewart:

And has the Board addressed the question of whether that program should be announced to the public or–

Reuben B. Robertson, III:

Yes, it is announced to the public set forth in the tariffs, Your Honor.

Potter Stewart:

And so that if anybody read the tariff would you know that you might — that there might be overbooking?

Reuben B. Robertson, III:

Yes, and furthermore the Board has made clear that the airline has to disclose to the passenger when he gets this kind of reservation that he might be bumped and that is the genius of this.

Potter Stewart:

I mean, in addition to the tariff?

Reuben B. Robertson, III:

In addition to the tariff.

Yes.

And the similar factor occurs in the liability limitation area.

The Board has made clear that you have to specifically make sure the passenger knows it.

When he checks his baggage, he is subject to liability limitations, that is in the tariff, in addition to board has imposed additional disclosure requirements and this is true in the overbooking area.

William H. Rehnquist:

Well, when he get this compensation and he is bumped, does not the Board require that he be advised that the compensation is in lieu of common law remedies which he might otherwise have?

Reuben B. Robertson, III:

He must be specifically advised to that — that is specifically set forth in the regulations.

Judge Fay’s dissent pointed out correctly, I think that the concept that the Board could ever immunize tortuous misrepresentations by an airline from the liability of the common law would really nullify Section 1106.

Warren E. Burger:

What specifically — what misrepresentation was Judge Fay referring to?

Reuben B. Robertson, III:

He was referring to the same thing we have been talking about and the Court of Appeals was it talking about.

It is the failure to disclose the material relationship between the bumping and the reservation that you think is going to assure your transportation.

So furthermore, when the majority below said that —

Potter Stewart:

Court of Appeals call that non-representation, I think that–

Reuben B. Robertson, III:

Yes.

I do not know, I mean that is really what we were talking about.

These are non- representation, so I do not have any argument with the Court of Appeals on that.

Warren E. Burger:

But what you are saying in affect permeating your whole case is the idea that people who travel on airlines more than, once or twice in their lives do not all ready know all of this as a practical matter, that is–

Reuben B. Robertson, III:

Yes, that is absolutely right.

I think if somebody were bumped tomorrow, I mean, this very proceeding has made the situation somewhat different in terms of people’s expectations about what happens to the airline gate.

I mean each of these tort of claims comes up under its own set of facts and you have to prove it under the common law as you find it and I think they could cross examine the bumpy who suffer this tomorrow and say, well, did you not know that Mr. Nader had been bumped, most people–

Warren E. Burger:

This is something in the nature of an assumption to risk defense.

Reuben B. Robertson, III:

Yes.

It is.

Warren E. Burger:

It is something, I had to wait — I read the papers but I did not know Mr. Nader got bumped until I read the pleadings in this case or until petition for cert, I guess was filed.

Do you not think most people who knew about this problem before?

Reuben B. Robertson, III:

I do not know.

I did not — I do not think that those people know — you might–

Warren E. Burger:

That is one thing that remains to be tried.

The assumption of risk idea I suppose.

Reuben B. Robertson, III:

Well, I mean–

Warren E. Burger:

Undertake to show evidence that, I do not know how they do it but they might–

Reuben B. Robertson, III:

Well, they did try that in the Court, in the District Court did fight for them.

Warren E. Burger:

A poll of passengers.

Reuben B. Robertson, III:

The District Court made an affirmative finding that Mr. Nader’s reliance was a reasonable one here that he did expect that this was an assurance of accommodation on the flight and in fact–

Thurgood Marshall:

(Inaudible).

Reuben B. Robertson, III:

I do not recall Your Honor. (Voice Overlap)

(Inaudible).

Reuben B. Robertson, III:

Yes, I do not recall that.

I know a number of–

Thurgood Marshall:

(Inaudible).

Reuben B. Robertson, III:

Yes, that is right.

All I am saying is that there maybe a different case and each one turns on its own facts when you are talking about the common law.

Lewis F. Powell, Jr.:

Does a record show what did the — what the percentages of — in terms of a hundred passengers or a thousand passengers in one day are bumped?

Reuben B. Robertson, III:

Yes, the percentage is about 99.94% chance that you will be accommodated.

Now, of course that includes all the flights that are not oversold at all because there are not even a hundred passengers for the hundred seats but–

Lewis F. Powell, Jr.:

The chance is greater of being bumped than they are that the flight will not fly for mechanical or some other reasons.

Reuben B. Robertson, III:

I could not tell you that.

My impression is that, yes they are.

Lewis F. Powell, Jr.:

So Mr. Nader testified on the stand that if he had known there was fraction of 1% as a matter of probabilities that he would be bumped, that he would not have taken his flight?

Reuben B. Robertson, III:

I think as I recollect his testimony, he did indicate that he might have taken an earlier flight or — I do not — I cannot recall exactly Mr. Justice Powell.

Lewis F. Powell, Jr.:

This is not a fair question but if you ever heard of anybody who declined to fly on an airplane because of that probability?

Reuben B. Robertson, III:

Yes.

Lewis F. Powell, Jr.:

(Inaudible).

Reuben B. Robertson, III:

Yes, and as a many of fact we had some discussion with what — whether Mr. Nader could be here today for the argument.

He has to be in Michigan and he had to take an earlier flight because he–[Laughter]

Lewis F. Powell, Jr.:

The opinion below indicated that 4.5 people out of 10,000.

Reuben B. Robertson, III:

Yes.

Lewis F. Powell, Jr.:

The odds are not bad, are they?

Reuben B. Robertson, III:

Well, when you translate that out to the absolute numbers, what you are talking about is a 100, 000 people every year.

Lewis F. Powell, Jr.:

(Inaudible) we are talking about here.

Reuben B. Robertson, III:

That is right.

I think the odds — the odds mount up if you travel in a considerable amount of time.

Whatever the case maybe, there is a lot of people that will be bumped and it is something the airlines have known about it and for some reason I do not want, they have not wanted the passenger to know about it.

I think that their concern that the passengers might not like it, might not like that risk.

William H. Rehnquist:

I suppose your position is that as an original matter of a kind of consideration that Justice Powell is questioning about, should be addressed by the common law jurisdiction, that is deciding whether or not this was in fact deceptive, maybe the Court of Appeals might decide contrary to Judge Richie that this was not really deceptive but that — at any rate you want it free to make that decision on the basis of Fraud Law rather than Preemption Law.

Reuben B. Robertson, III:

Yes.

That is right Your Honor.

This case really boils down to is — the concept that is in the Court of Appeals decision that the CAB might have the power to approve a common law fraud.

This is a new doctrine of Administrative Law, deception in the public interest and the whole point of Section 411, is that deception is not good for you.

411 was designed to protect people from deception and not to protect deceivers.

If the Congress is in–

Warren E. Burger:

You might say that proposition in other terms I suppose, more simple terms, that the Board might say that the across the whole range of this problem, a doctrine of assumption of risk is written into the implied contract between the passenger and the carrier.

Reuben B. Robertson, III:

Well, it is not an implied contract, Your Honor, it is a very specifically detailed contract that is set forth in the tariffs.

Warren E. Burger:

If we change that and say hereafter, could the Board say by promulgating a rule of some kind that passengers assume the risk of being one, mechanical failure that cancels the flight, two, being bumped because of overbooking and three, whatever the other reasons may be.

Reuben B. Robertson, III:

For its purpose, under its statute, under Section 411, it could and it has done precisely that.

Warren E. Burger:

Well–

Reuben B. Robertson, III:

It could say–

Warren E. Burger:

But to block a common law suit?

Reuben B. Robertson, III:

I do not believe they could.

Warren E. Burger:

Well, let us–

Reuben B. Robertson, III:

I think the best way to approach is to look at the situation where the Board does have specific statutory powers to approve conduct that might be, might violate the Law.

In the anti-trust field, we have three different sections in which the CAB has specifically given power and it has very, very carefully spelled out to approve conduct that would otherwise violate or might otherwise violate the administrative anti-trust laws.

These are Sections 408, 409 and 412 on the Federal Aviation Act.

And when the Board does give that kind of approval under these sections, under these specific provisions, Section 414 of this Act specifically says that these transactions are thereby immunized from anti-trust liability.

There is simply no comparable language in this Act that would authorize the Board to sanction deceit by an airline under any circumstance or to immunize the concealment of material facts from–

John Paul Stevens:

Mr. Robertson, by analogy to your anti-trust example, supposing the Board that — your theory of fraud is a non-representation, failure disclosed, supposing the board issued an order saying, do not disclose because their conflicting interest is at stake and it would be harmful to do it.

Then what about the rational of the Parker against Brown case that the airlines would have no alternative but to obey the order and therefore it would be somewhat unfair to hold them liable as a matter of common law.

Reuben B. Robertson, III:

Well, if that just what the — the respondents here are saying the Board has said that, do not disclose.

It says, it is against the public interest for you to disclose the truth.

First of all, they simply have not said anything of a kind.

What they have said is that you retain your common law right to go to Court.

Now, I do not believe that they would have any power to tell an airline that it may not disclose the truth.

That is simply beyond anything —

William J. Brennan, Jr.:

That it must not disclose–

Reuben B. Robertson, III:

Or that it must not disclose.

Yes.

Potter Stewart:

You mean that is hypothetical?

Reuben B. Robertson, III:

Yes.

And I — this act simply gives the Board no such power.

Potter Stewart:

If it did given such a power, well, you have just answer that.

That is a different case.

Reuben B. Robertson, III:

Yes.

Potter Stewart:

You do not have to answer — you do not have meet that.

Reuben B. Robertson, III:

If it did, I think that would be an entirely different case.

Warren E. Burger:

Your responses to these questions conflict with an announcement by the CAB to the public generally that it was approving the overbooking practice which is pretty close to what they have done, or at least they have not done it.

What quarrel do you have with that again?

Reuben B. Robertson, III:

Well–

Warren E. Burger:

I am not very clear on what is your position was about that.

You said they can do that all right but they cannot take away any common law action that you have?

Reuben B. Robertson, III:

What they can do is say that for the purposes of Section 411, they are not or and the other parts of its statute, they are not going to try to get in to detailed regulation of this kind of area.

What they are going to do is leave this to free enterprise system to work out.

I think that is what they have done here.

But they have never said that they are going to preempt common law remedies and I do not think they could in this kind of area.

Now, suppose someone had come in and filed a tariff, if it had filed a tariff saying the reservation means that you are going to be, you maybe overbooked and you are or you have an assumption of risk.

That would be an entirely different case.

Thurgood Marshall:

(Inaudible) we put a sign on the camera like they have the liability on baggage which thinks the decision in mind they have to do, would that be satisfactory?

Reuben B. Robertson, III:

Well, it would certainly help Your Honor.

Reuben B. Robertson, III:

I think you would have a lot harder time making out a common law tort claim.

Thurgood Marshall:

Would you be satisfied with that?

Reuben B. Robertson, III:

Well, I do not know what would be satisfactory for the airlines to do, I mean there is a lot of possibilities where–

Thurgood Marshall:

But what would be satisfactory to the public that you represent.

Reuben B. Robertson, III:

I think you are a little late by the time you get the guy to the airline counter to tell him that they overbooked these flights but–

(Inaudible)

Reuben B. Robertson, III:

Well, if it is on a stake it — I think that, I mean that would be an entirely different case.

It might be a defense to acclaim that the plaintiff had been deceived.

Warren E. Burger:

You have to bring in perhaps something like an assumption of risk–

Reuben B. Robertson, III:

Yes.

Warren E. Burger:

That there was if it said you are hereby notified that you might be bumped and if you are bumped there will be no liability on the part of the carrier.

Reuben B. Robertson, III:

But that does not involve the slightest bit of concealment, I mean they are telling you they are — they are telling you and you can assume that risk safely it seems to me and make your own judgment.

That as I say, that is the genius of these Eastern airline system that they — in which they do tell you that, look, you are in a class that people that might get bumped here.

And if you do not like it, take an earlier flight or go in another airline and if you do like it, if you do get bumped, you might get you might get the — the denied boarding compensation penalty.

Lewis F. Powell, Jr.:

But — did I understand you to say that mere inclusion in the tariff would be sufficient in your opinion.

Reuben B. Robertson, III:

It would be an entirely different case.

I do not know how it would come out if some, I mean as a practical matter of people do not read the tariffs but they are held to be binding as a matter of law here, deemed to have notice of everything that is in the tariffs and the case has consistently held this.

I think it would be a very different case from the one we have here.

So the decision below would turn this Act on its head, 411 says that the CAB can eliminate deceptive practices, the Court of Appeals says that it can approve deception in the public interest.

1106 says that the Common Law remedies survived and that new statutory powers here are an addition to these remedies.

The Court of Appeals says that the common law must be altered and these remedies are subordinated to administrative powers that are not even stated in the Act.

I think that this decision calls for a major reallocations of functions between the common law of Courts and the Federal Agency.

This would seriously disrupt a statutory scheme and as Judge Fay said, it is plainly contrary to the intent of Congress.

So we respectfully urge that you reverse the decision below.

Warren E. Burger:

Mr. Prettyman.

E. Barrett Prettyman, Jr.:

Mr. Chief Justice and may it please the Court.

This case presents only one single and very narrow question and that is whether the CAB does have power to regulate in the area of notice to the public of overbooking by regulated carriers.

Now, we have to start with overbooking itself even though it is not directly involved here.

In the first place, petitioner concedes that overbooking itself is not illegal per se and in the second place the overbooking part of the case if you will has been remanded back and it is not before you.

But the reason that we have to start with overbooking, the reason that it is relevant is that if petitioner is successful here, there will be an end to overbooking.

E. Barrett Prettyman, Jr.:

He has a letter in the record indicating that is really what he is trying to do.

He is not trying to get damages or fraud — misrepresentation, he is using that as a vehicle to stop overbooking and the CAB has said in fact that if notice is published, overbooking will stop.

Now, that is exactly what the 25 —

Lewis F. Powell, Jr.:

If what?

E. Barrett Prettyman, Jr.:

If notice is given to the public overbooking is going to have to stop.

Obviously, if somebody — one of two things is going to happen.

Somebody calls up on the phone and he says, I want to make a reservation to go to Chicago and they say, alright, we are giving you a reservation but we should tell you that this is not really a reservation because there is a chance that you maybe get on the plane.

Potter Stewart:

Well, if he is approved precisely that kind of a tariff in that Eastern Airlines plan?

E. Barrett Prettyman, Jr.:

Sir, that is a very special kind of a plan whereby Eastern tells you in advance that you might not and you therefore choose to go out to the airport because you really do not want to get anywhere necessarily at that time and if you do not get that flight, you can get some other flight and you get it free.

But the point of it sir, that-that is not what the 174 million passengers a year who travel want, that most people do not go on —

Potter Stewart:

Reservation?

E. Barrett Prettyman, Jr.:

That is right.

They do not go on Eastern Leisure class.

Potter Stewart:

Mr. Nader got in this case?

E. Barrett Prettyman, Jr.:

That is exactly the —

Potter Stewart:

He had a confirmed reservation when he did.

E. Barrett Prettyman, Jr.:

That is very true sir.

Warren E. Burger:

They also want to conserve themselves to the privilege of not showing up and not being penalized for it and I suppose that is the other side of that coin, is it not?

E. Barrett Prettyman, Jr.:

Well, I think there is the other side of the coin but I would suggest you that they are precisely the kinds of questions that the CAB has now been struggling with for 20 years.

Because this goes back to 1956, when they first took a look at this whole problem.

And since then as I am going to detail for you, they have dealt with it in some length and some depth and they have reached a number of conclusions that I think you ought to know about.

Because what you are going to do if you hold for him is you are going to take this whole problem away from the CAB that has been attempting to deal with it for 20 years.

And has detailed regulations on the subject, has detailed regulations on the subject and you are going to say, no, we are going to allow $25,000 awards which in effect is going to not only bring a stop to overbooking which the CAB has said definitely is in the public interest.

Byron R. White:

Well, I am not sure I understand that, you assert that CAB has power to regulate this practice and to insulate the airlines from these sort of actions.

I think that think it does.

E. Barrett Prettyman, Jr.:

We say that the CAB has power to regulate both in the area of overbooking and in the area of notice to the public.

Byron R. White:

And then, do you think enough has happened so that these kinds of actions may not be maintained.

E. Barrett Prettyman, Jr.:

Well, absolutely.

I will tell — think–

Byron R. White:

If all the Court did was to say that, well, the CAB might be able to do that but it has not done it yet and you certainly have not run and driven any holes through the Civil Aeronautics Board or the Civil Aeronautics Act.

E. Barrett Prettyman, Jr.:

Well, Mr. Justice, we say two things.

Byron R. White:

CAB turned around on that sort of an approach — the CAB could turn around tomorrow and make it clear, if it had the power to do it as you say it does that the airlines must do this and that we are preempting the issue.

E. Barrett Prettyman, Jr.:

Well, that was the Court of Appeals is saying here.

Is that this is a matter which should first be sent to the CAB to determine first of all whether they have already ruled on it as we think they have.

And secondly, if they have not ruled on it to get the benefit of their judgment before the Court’s try to decide in the first instance whether this amounts to fraudulent misrepresentation.

Potter Stewart:

Does that not read Section 1106 right out of this?

E. Barrett Prettyman, Jr.:

Sir, Section 1106 is precisely the language that went way back 1906 in the Texas Pacific case, do you remember?

Potter Stewart:

It came from and maybe boilerplate but it does say something and it must be–

E. Barrett Prettyman, Jr.:

And this Court has ruled on a number of occasions that all it means is that all of your remedies are preserved except for those which are in conflict with the agency determination.

That is all that means, that is what they said in Texas & Pacific where you had, where they tried to bring the suit because of bad rates and they said no, that is in conflict with the agency’s jurisdiction to determine rights and therefore despite with this, even though it was a common law defense–

Potter Stewart:

(Inaudible).

E. Barrett Prettyman, Jr.:

Right.

Sure.

William H. Rehnquist:

It is quite a different case than this.

E. Barrett Prettyman, Jr.:

Well, no.

That is exactly the point.

Potter Stewart:

It in not different case.

E. Barrett Prettyman, Jr.:

It is not a different case Your Honor and let me make this very clear to you.

Back in 1967, the CAB issued detailed regulations dealing with overbooking and with denied boarding compensation and they decided that because of the extraordinary no-show problem which amounts to almost 10% of your sales, I think you got to get a picture of what goes on here at these airports.

28% cancellations, 20% of your — of there is a 20% turn over in seats in the last 6 hours before the flights take off.

Airlines–

William H. Rehnquist:

Well, but that is induced by the Airlines, is it not?

They do not want penalize no-show.

E. Barrett Prettyman, Jr.:

Sir, only a very small part of it, we say.

And the figures here are in conflict, the hearing examiner decided that it was somewhere between 50 and 60%, he could not decide who was the major contributor to no-shows but certainly a great number of no-shows, I would say at least in the area of half are simply people who make reservations and who do not turn up.

Now, that problem was costing the Airlines Industry at over $18 million dollars a year and the Board being extremely concerned with this decided that they would issue detailed regulations and allow overbooking to take place and if there was an over sale to allow a specific amount of denied boarding compensation.

Alright, the next thing that came along was this problem of notice.

And I will be very frank with you.

Their first reaction to it was the same as Mr. Nader’s.

Their first reaction was, well, it is kind of deceptive not to tell the public and consequently, we will have, the first suggestion was, 24 hours before notice, before flight time.

E. Barrett Prettyman, Jr.:

And then the second suggestion and this they were actually going to make a rule.

They issued a notice, a proposed rulemaking that you had to give 12 hours notice, if you overbook to the passengers on the plane, what happened?

The Airlines came in and they show precisely —

William H. Rehnquist:

Mr. Prettyman, let me interrupt you just a minute.

You are saying that this is just what Mr. Nader is asking for.

As I understand of what the CAB was talking about there was notification of individual passengers who had reservations within the 12 hour, 24 hour period and what Mr. Nader’s argument is that the Airlines are by implication of representing that there is no problem to the general public that a confirmed reservation means just that.

E. Barrett Prettyman, Jr.:

What he think–

William H. Rehnquist:

I think those two could stand consistently with one another.

E. Barrett Prettyman, Jr.:

Well, I respectfully disagree Your Honor because I think that what he is saying is that the — when he called to make a reservation, they failed to give him notice that he might not get on the flight because of an overbooking situation.

Now the problem, you got to understand this overbooking, this is not designed to create over sales.

If the thing works perfectly, there is no over sale.

For example, just take this very flight.

This very flight had a history of leaving with 6, an average of 6 empty seats on every flight.

So what they were doing and was overbooking in attempt to compensate for those empty seats.

They only had one prior instance of overbooking on this particular flight.

So it does not, it — you should not the impression that this thing is just a sloppy method.

It is done through a computer in an attempt to make every flight leave with every seat taken, and that is why the CAB very concerned about over sales said in effect that over — we are going to improve in overbooking so long as you have three conditions and they are very important.

First of all, you have to get denied boarding compensation, has to be handed to the man if there is an over sale right on the spot.

Secondly, you have to have priority rules so that you are fair to the over if over sales.

If you have more than one that they are treated in a proper manner and finally, that you have to file with us quarterly and monthly detailed reports with the CAB of your over sales, they get monthly reports about this.

William H. Rehnquist:

(Inaudible)

E. Barrett Prettyman, Jr.:

Sir?

William H. Rehnquist:

How about over — do they–

E. Barrett Prettyman, Jr.:

Overbooking is meaningless until it results in an over sale Your Honor.

William H. Rehnquist:

I know, but do they to tell how — that does not airline tell the board how it as an airline as calculating its overbookings?

E. Barrett Prettyman, Jr.:

No.

It does not.

They are–

Byron R. White:

An airlines might be reasonable about it and others might

E. Barrett Prettyman, Jr.:

Well, but the statistics show whether they would be reasonable because if their overbooking is–

Byron R. White:

How do you know they are being reasonable unless the Airline tells them.

E. Barrett Prettyman, Jr.:

Your Honor because if they have too many over sales, it is an obvious indication that the overbooking is not working.

In other words, by the reports they get every month of over sales, they can tell whether an airlines is out of kilter in terms of its overbooking because of it has too many over sales, then obviously, the system is not working right.

We for example, Allegheny are below the average –.

Byron R. White:

Report every month the fellows who are left at the gate.

E. Barrett Prettyman, Jr.:

Yes, sir.

Absolutely, and more detailed than that.

It is in the records as to precisely what the reports are.

Now, I want to get back to this notice thing again because I think it is extremely important.

When it was suggested, that the public be told about the overbooking situation and that they might not get on the flights.

William H. Rehnquist:

When you say the public be told, you mean a general message or notification of people with reservation.

E. Barrett Prettyman, Jr.:

I think that the notice would be of the kind that he seeks here and that is when you call up.

They qualify your confirmation.

In other words they say, alright, so we are going to put you on this plane but you should be aware of the fact that you might not get on it.

Now, listen to what the Board said when it rejected a rule specifically designed to do that.

It said, this is the Boards’ words, not what the Airlines argued to them, he said, the result in confusion, alarm, bitterness and cancellation of reservations.

It referred to the very sizable number of peoples needlessly alarmed by the notification of their overbook status.

They referred to reservations that would have been canceled on flights which actually could have accommodated the passengers.

They talked about a large number of passengers who would be denied reservations on flights which because of reservations turn over and no-shows would depart with empty seats.

What are they saying here?

They are saying that here in an effort to make up for the problem of no-shows, we are going to allow you to overbook then if you are going to give notice, you are going to exacerbate the very problem that we are faced with in the first place.

Because you are going to have people making multiple reservations and a lot of people not showing up and instead of 6 empty seats on Allegheny Flight 864, you are going to have 15 or 30 seats if you start telling the public this.

Now the point I want to make to you is this–

Byron R. White:

(Inaudible).

They did not tell them to overbook.

E. Barrett Prettyman, Jr.:

Sir, what they did was have they, if you look at part 250 in the regulations, they have a detailed plan for what happens when you overbook and have an over sale and the second thing you have–

Byron R. White:

No Airlines is in violation of any order of the CAB if it does not overbook.

E. Barrett Prettyman, Jr.:

You mean that if it says that it is overbooked?

Byron R. White:

No.

If it does not overbook.

E. Barrett Prettyman, Jr.:

No, that is absolutely correct.

It is not–

Byron R. White:

No Airlines is in violation to CAB, any CAB order if it overbooks and tells people it is.

E. Barrett Prettyman, Jr.:

It may go out of business but it is not — may not in violation of any CAB order.

That is correct.

Byron R. White:

So are the CAB left the Airlines on their own in this is respect, did they not?

E. Barrett Prettyman, Jr.:

Sir, I will tell you this, I think that if tomorrow, an Airline began telling the public that they might not get on to this flights, it is a serious question as to whether the CAB–

Byron R. White:

You do not have to tell them, it is just that the — the opposition’s position is that you may have to pay a judgment down there.

E. Barrett Prettyman, Jr.:

Well, the point I am trying to make is that you and I may argue about the wisdom of both overbooking and denied boarding conversation and notice.

But the real point is that that we should not be here arguing this.

We should not have 40 pages of brief and talk back and forth about whether this is wise or not.

This is what the CAB is for.

This is precisely what it is designed to do.

To take into consideration the pros and the cons of notice, there are things to be said against notice.

There are things to be said in favor of it.

But this is precisely what this agency is designed to do is to take the public interest.

Not Mr. Nader’s particular problem which of course is serious to us but to take the entire public interest problem into consideration and say, now, wait a minute.

We were going to issue this rule requiring notice we find as I have read it to you that–

John Paul Stevens:

Mr. Prettyman, may I just interrupt?

E. Barrett Prettyman, Jr.:

Certainly.

John Paul Stevens:

Your whole argument proceeds on the premise as I understand it that overbooking really is at stake in this case.

Is it not entirely possible that we could reverse and send the case back to the Court of Appeals and they would find there is no Common Law of fraud by reason of the failure to disclose?

E. Barrett Prettyman, Jr.:

They might find that there is no common law–

John Paul Stevens:

Have you conceded that there is a common law of fraud.

E. Barrett Prettyman, Jr.:

No, I am not, conceded this common law of fraud–

John Paul Stevens:

Is it not correct.

That is not necessarily true that the kind of notice you are describing is at issue but merely you would have an obligation to give sufficient notice to have a defense to a common law fraud action.

E. Barrett Prettyman, Jr.:

Well–

John Paul Stevens:

In other words, if you hit on every ticket, you would have one chance out of 10, 000, if you do not get there 15 minutes early, that you may be bumped, something like that.

That would be — probably an adequate defense even though it would not be the kind of notice that you are saying he wants.

E. Barrett Prettyman, Jr.:

The difficulty Your Honor is that, the primary jurisdiction problems enters the case before that.

In other words, where it should enter that case is when —

John Paul Stevens:

But does it enter it with respect to the question that we have to decide that was presented by the certiorari petition.

E. Barrett Prettyman, Jr.:

It certainly enters it in the connection with notice.

That is right, but he is claiming that he did not receive notice that —

John Paul Stevens:

I know he is claiming but you certainly are not admitting that that is the only kind of notice that would be an adequate defense to a Common Law fraud case, are you?

E. Barrett Prettyman, Jr.:

No, that is true.

John Paul Stevens:

Well.

E. Barrett Prettyman, Jr.:

But the — the point I do want to make is that when the first — when the case first comes up and it is first presented in District Court is at the point where this Court seems to me has said in enumerable cases, cases like Ricky for example.

Not just that you have to go to the CAB because they have some kind of exclusive jurisdiction over this even, we think they do.

But even to get their view about this is helpful for us in deciding this kind of case.

In other words–

William H. Rehnquist:

What about the CAB certainly has some authority to regulate safety conditions on airplane, does that mean that before–

E. Barrett Prettyman, Jr.:

That would be the FAA but it —

William H. Rehnquist:

Well, okay the FAA, does that mean that before a passenger can sue an airline as a result of an aviation disaster he has to first present his claim to the CAB?

E. Barrett Prettyman, Jr.:

No, but that is more or like our priority problem here which is a different problem.

Now, the Court of Appeals has said that if you have your priorities on file and if you violated your priority, then that is a Court question and there have been in number of recoveries because priorities are set out clearly and there is nothing for the CAB to do.

Assuming that the priorities that you have are fair and if you have violated your priorities then you can recover in Court.

Just as he maybe able to recover on the remand of the other section of the case because if, you know, we obviously claim we followed our priorities but if we were wrong–

William H. Rehnquist:

But that is the Federal Law claim?

E. Barrett Prettyman, Jr.:

That is right.

William H. Rehnquist:

But I am asking you whether in order to maintain a State Law claim for negligence against an airline as a result of a disaster, you have to first go to the CAB and see if they approve it.

E. Barrett Prettyman, Jr.:

Well, you do if the question that is involved is whether a particular safety regulation for example, was in effect or was violated or an issue as to a regulation relating to safety, if as soon as that becomes involved, the whole case does not go to the CAB or in that case the FAA.

But that section interpreting the safety regulation is then shifted to the FAA for determination for its interpretation of that safety regulation.

William H. Rehnquist:

Is that well established in the case, I have not realize that.

E. Barrett Prettyman, Jr.:

Well, sir that is what — that is what the whole line of primary jurisdiction cases that you have established says and that is not anyone of this cases where you get into an interpretation of a board or agency’s regulations or rules that instead of the Court deciding it, it should be set to the agency if the agency has not here before it decided the question.

John Paul Stevens:

But are there primary jurisdiction cases involving negligence claims?

E. Barrett Prettyman, Jr.:

Negligence claims?

Sure.

John Paul Stevens:

I am not familiar with it neither.

E. Barrett Prettyman, Jr.:

Yes sir.

John Paul Stevens:

Not in anti-trust cases I know that of –.

E. Barrett Prettyman, Jr.:

Yes.

The — there are couples of exculpatory cases Your Honor.

There are — let me just give you an example of the type of case that have been referred to agencies or thrown out.

You had the Lichten case is the — it is in our brief, is the most — the one that seems most obvious where there was a common law claim and where in fact there was nothing specific giving the Board jurisdiction and yet in which it — that that was a case involving the jury on a plane with — that was delivered to the wrong person.

And the Court ruled that the CAB tariff controlled and that the passengers assume the risk unless the carrier was specifically notified of the jury.

Now otherwise, that would have been a clear case of a common law recovery and there was nothing specific that gave the CAB jurisdiction in that case and yet they said that — that was a matter which did come into the CAB.

Byron R. White:

Suppose Mr. Prettyman, the — the claim under federal law, under the Federal statute is sustained eventually and that I suppose the — would you simply –would it be fair to conclude if that happened that —

E. Barrett Prettyman, Jr.:

What happened sir, I am sorry I did not hear the–

Byron R. White:

That the claim under Federal Law is sustained.

Was not there not a judgment in the District Court under Federal Law?

E. Barrett Prettyman, Jr.:

Yes, but that has been remanded.

Byron R. White:

I understand.

Let us assume ultimately it is sustained.

Or let us assume that Court of Appeals had affirmed it.

Would it be fair to conclude from that not only is the fraud — was deterred to conclude that that — that the federal law would not protect this kind of action from a fraud, State fraud judgment.

E. Barrett Prettyman, Jr.:

Well, that is precisely whether the Court of Appeals ruled as it did.

It said, first of all that overbooking was not per se illegal and secondly, therefore the only question that was properly up was whether the priority rules had in fact been followed and that — and there was dispute about that and therefore it was sent back for determination of that single question.

So that is why the Court of Appeals decided the way it did on the first — on the federal cause of action.

I mean you are asking me to assume a result which I would say would be wrong under my theory, Mr. Justice.

Byron R. White:

Well, maybe it just seems to me that it is an awfully difficult thing to claim that you are protected from a State cause of action, because of a Federal Law that you have violated.

E. Barrett Prettyman, Jr.:

Because of a Federal Law that we have violated, well, of course our claim is–

Potter Stewart:

(Inaudible) you have violated the priorities?

E. Barrett Prettyman, Jr.:

Yes.

Well, but that would be a Section 404 claim.

That would be claim of unjust discrimination and so forth under 404.

That would be, that there was nothing wrong with the overbooking but that when the man turned up, there were three people waiting, we let the wrong person Honor, we took, did not take the right person off the plane.

Potter Stewart:

In the anti-trust area sometimes, an agency has the power to insulate you from anti-trust judgment as long as you do things in the right way but if you do them on the wrong way or you can get sued under the anti-trust law.

E. Barrett Prettyman, Jr.:

But the priorities have absolutely nothing to with the notice issue that is in the front of the Court now Your Honor.

E. Barrett Prettyman, Jr.:

There is nothing to do with it at all.

Priorities has to do with whether if you have more over, more than one over sale, how you are going to treat them.

The issue before this Court is whether, since he claims that he was entitle to notice and the CAB has been working with this issue and dealing with it and deciding not to tell a carrier to give notice.

In fact, absolutely, doing away with the proposed rule that would have required us to, whether you do not turn to the CAB in the first instance and say, number one, have you decided in the past and already back in 67, that not giving notice is proper, or if you have never decided this question give us your, at best advise now as to how you would decide prospectively because that would aid us in this case.

That is precisely the line of cases that you have had here in so many instances where you — this is a precisely the kind of question that is referred to the Board for its expertise and in order to avoid conflict.

Now, may I just present to you on–

Potter Stewart:

Let us assume that what the Court of Appeals did here was correct and that this now goes to CAB and the CAB says no, we have never decided this in the past.

E. Barrett Prettyman, Jr.:

Right.

Potter Stewart:

But now that you ask us, we think we will probably decide it in the future and we can tell you now that we will hold that not giving notices — notice is all right.

And then, would it be your submission that that ends this claim that that is an absolute defense.

E. Barrett Prettyman, Jr.:

Well, I would take this position Your Honor, that if they say that not because of all of the considerations, the balancing considerations that notice should not be given, that that should strongly influence the Court in deciding that in fact there was no fraudulent misrepresentation back in 1972.

Potter Stewart:

(Inaudible)

E. Barrett Prettyman, Jr.:

I would personally think it would be determinative but I concede that the Court would have some role to play because it might decide that, simply because of what the Board is deciding now, it does not necessarily preclude it back several years ago.

But I–

Potter Stewart:

(Inaudible)

E. Barrett Prettyman, Jr.:

Pardon me.

Thurgood Marshall:

Would you have a jury trial?

E. Barrett Prettyman, Jr.:

Could have jury trial, sure.

Thurgood Marshall:

(Inaudible)

E. Barrett Prettyman, Jr.:

Sir.

Thurgood Marshall:

The judge would — then the judge would not have much to do with it.

E. Barrett Prettyman, Jr.:

Well, I well of course–

Thurgood Marshall:

Would you think that was a jury question?

E. Barrett Prettyman, Jr.:

Of course, I would take the position that this would really be a legal question.

Thurgood Marshall:

Right.

E. Barrett Prettyman, Jr.:

But let me just — let me make a one point very strongly here to because I am not sure that I have gotten this across.

And that is that you cannot have a $25 thousand recovery in this case.

And the CAB operating in the area that it thinks it is operating in as it told the Court of Appeals, it thinks it is operating in both going on at the same time.

The CAB has an investigation right now and has had since 1973 into this whole problem.

It has an ongoing investigation since the Nader case was decided, the remand from the Court of Appeals that informed the Industry that–

Byron R. White:

(Inaudible) had informed to the Court of Appeals?

E. Barrett Prettyman, Jr.:

When the Court of Appeals decided the Nader case, the CAB informed the Industry of the result and solicited its views in the light of the ongoing investigation that is going on of this entire business of overbooking practices and notices and so forth.

Byron R. White:

The CAB has not filed anything here, has it?

E. Barrett Prettyman, Jr.:

No, not here.

They did in the Court of Appeals.

Byron R. White:

(Inaudible)

E. Barrett Prettyman, Jr.:

Yes.

Byron R. White:

That is in context with the argument.

E. Barrett Prettyman, Jr.:

They filed amicus brief supporting, fully supporting us in the Court of Appeals —

Byron R. White:

Saying what?

E. Barrett Prettyman, Jr.:

Saying that they thought that they had primary jurisdiction in this area.

Now —

Byron R. White:

And did they also say that this is what we meant all along?

E. Barrett Prettyman, Jr.:

No, no.

They — what they did was that–

Byron R. White:

That they want them — maybe have a new swing at it.

E. Barrett Prettyman, Jr.:

No, they detailed everything that had gone on in this extraordinary number of orders and backing and filling on this entire problem and the regulations that they have and how they worked the denied boarding compensation out in the notice–

John Paul Stevens:

Did the court address both the common law issue and the statutory issue?

E. Barrett Prettyman, Jr.:

In both, yes sir.

John Paul Stevens:

In both.

E. Barrett Prettyman, Jr.:

Yes sir.

Potter Stewart:

Is there–

E. Barrett Prettyman, Jr.:

And they said they had primary jurisdiction and–

Potter Stewart:

In the Court of Appeals brief in the record, I wonder.

E. Barrett Prettyman, Jr.:

That can easily be supplied to the Court.

William H. Rehnquist:

Did they complain, what they meant about saying that you could keep your common law remedies if you did not take that denied boarding compensation?

E. Barrett Prettyman, Jr.:

Yes.

You see what — what that means Your Honor is that there are two types of cases that are kind of left over.

One is the Fitzgerald type case where an airline denies boarding to a passenger solely on the basis of race.

Now there is no way that the CAB can approve that.

E. Barrett Prettyman, Jr.:

There is nothing to refer to the CAB.

That is a racial discrimination case.

You go into Court and you can recover.

Therefore there is no primary jurisdiction on that kind of case.

Another kind of case would be the priorities case that is if you have violated your priorities, there is nothing to go the CAB about.

Therefore, you can choose to turn down your denied boarding compensation and go in and get higher damages than you would get under denied boarding compensation because they have violated their priorities.

If those kinds of things that are still left over and that is the reason why some passengers turn down the denied boarding compensation.

There is a recent case before Judge Gazelle, for example, where apparent pelagic was denied entrance to an airplane because he did not have somebody with him and that the CAB has not dealt in anyway with that problem and therefore that presumably would not have to be — go to the CAB.

But the point I have to drive home–

John Paul Stevens:

(Inaudible) indicate what should happen to this case?

E. Barrett Prettyman, Jr.:

Yes, it is thought that it should have primary jurisdiction.

John Paul Stevens:

To, I mean on the — to do what?

E. Barrett Prettyman, Jr.:

To decide what the correct practices should be.

To give the Court its judgment–

Byron R. White:

(Inaudible) indicate that furthermore if we decide the correct practice should be no notice that therefore there is no cause of action in this case.

E. Barrett Prettyman, Jr.:

Well, Your Honor, I cannot go that far.

My memory does not serve me best to tell you whether they went that far but what they did say was that they were avidly involved into this entire problem.

There were an ongoing investigations that they should have a hand at least in giving the Court the best advice that they could about what the practices should be.

But again if I can just say one word and that is, I want to emphasize that, so that you know what you do here when you allow a $25 thousand award.

You are not only allowing that but you are eliminating overbooking.

The CAB has said so.

You are eliminating overbooking and I think that you are placing yourself with all due respect right in this–

Byron R. White:

$25,000 is dependent on punitive damage recovery.

E. Barrett Prettyman, Jr.:

Yes sir.

John Paul Stevens:

Which is still another hurdle that they — conceding they are entitled to punitive damages –.

E. Barrett Prettyman, Jr.:

No, no.

But what I am saying is–

John Paul Stevens:

As they have a $25,000

E. Barrett Prettyman, Jr.:

I am saying that if you allow them the option of trying for punitive damages and getting this kind of award, you are doing away with overbooking and as I say with great respect you are putting yourselves, I think in the shoes of the CAB because that is a CAB decision and not your decision.

John Paul Stevens:

I have a question.

E. Barrett Prettyman, Jr.:

Yes sir.

Warren E. Burger:

Your friend responded, I will not call it a concession but he responded certainly not negatively that if the tickets, the airline ticket on the back said something to the effect — that there is one chance in a hundred or maybe two chances in hundred if they wanted to be safe that you will not be accommodated as a passenger on the flight covered by this ticket either because of mechanical failure, bad weather or overbooking.

And now it cannot be that simple if that would solve this problem, I should think it would have been done.

What is the flaw in that?

E. Barrett Prettyman, Jr.:

Well, I think the answer sir is certainly would do away with a claim of fraudulent misrepresentation.

But I think the problem from the airline industry’s standpoint is that that right now there is a tremendous amount of multiple booking going on.

People make reservations on any number of flights and they only take one if they take any.

And–

Warren E. Burger:

And the plaintiff in this case whether he had ever done that?

E. Barrett Prettyman, Jr.:

He had been bumped twice before.

Warren E. Burger:

But he had made multiple reservations —

E. Barrett Prettyman, Jr.:

No asked him.

But I think that they would tremendously exacerbate that problem.

it would result in many more multiple reservations than we have got and this as I say is precisely why the CAB is allowing overbooking in the first place trying to get away from the multiple–

Warren E. Burger:

Assuming that most people read their tickets, I have been traveling on airlines since they began, I have never read a ticket yet, I do not know what is on them.

E. Barrett Prettyman, Jr.:

I have not either Your Honor.

Warren E. Burger:

Well, very well.

E. Barrett Prettyman, Jr.:

But of course the point I think you are trying to make is if you gave people notice, I mean, if you are just going to give them a formal notice to get away from your fraudulent misrepresentation claim that is one thing.

But if you are going to put up a big sign and say we do not really confirm the space because you may not get on the plane.

If you do not think that is going to have an impact in terms of people taking trains or making multiple reservations or having no-shows, why, you are just wrong and that is what the CAB is saying and that is what they are fighting with.

It is not an easy problem they have got.

Potter Stewart:

Mr. Prettyman, could you conveniently arrange to have the members of the Courts supplied with the copies of the brief.

E. Barrett Prettyman, Jr.:

Oh! Absolutely.

Potter Stewart:

Applied by the CAB in the Court of Appeals.

E. Barrett Prettyman, Jr.:

Absolutely.

I will certainly will.

Warren E. Burger:

Do you have anything further Mr. Robertson?

E. Barrett Prettyman, Jr.:

Just one brief clarification Your Honor.

On the 1967 proposal, I think it is important to point out, I have submitted to the Court a set of the relevant CAB materials for your convenience.

I have obliged there with the ten sets–

Warren E. Burger:

(Inaudible).

E. Barrett Prettyman, Jr.:

Ten sets applied are with the clerk so that if you want to look at these documents that are sometimes hard to find.

This was a rulemaking called EDR-95 and that did not contemplate a general warning to be given to all passengers.

What it was talking about was that the airlines would have to figure out 12 hours ahead of time every flight that was likely to be overbooked, that was overbooked to that time.

And that it would have to call up every passenger, sometimes long distance to warn them that they might be bumped and the airlines said they simply could not do that.

They did not have the data processing capacity.

They did not have the personnel, it would involve millions of calls every year and it would be enormously costly.

The CAB had noted that every airline said that they recognized on their own the obligation to give a warning and the purpose in this rulemaking was simply to regularize those procedures.

CAB, finally concluded that it did not need to regularize those procedures at the clasp of such flexibility.

That is at EDR-95 page 4.

So I do not think we are talking about the same kind of thing here.

Harry A. Blackmun:

Mr. Robertson do you know why the CAB is not here?

E. Barrett Prettyman, Jr.:

I have wondered about that a great deal — Your Honor.

I cannot draw any conclusion one way or the other I am —

Byron R. White:

(Inaudible) Court of Appeals or did they come in by themselves?

Reuben B. Robertson, III:

They say that the Court of Appeals level that the case was so important that they should be permitted to file their brief five months after all of the briefs were due, I must say over my objection.

But then they apparently lost interest in the case, I assume they feel that I can adequately represent their interest.[Laughter]

Warren E. Burger:

We will let the record show that.

Mr. Prettyman does not agree with you.[Laughter]

Thank you gentlemen.

The case is submitted.