OCTOBER TERM, 1993
Syllabus
NORTHWEST AIRLINES, INC., ET AL.
v. COUNTY OF KENT,
MICHIGAN, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 92-97. Argued November 29, 1993-Decided January 24,1994
Respondents, the owner and operators of Michigan's Kent County
International Airport (collectively, the Airport), collect rent and
fees from three groups of Airport users: commercial airlines,
including petitioners (Airlines); general aviation; and
concessionaires such as car rental agencies and gift shops. The
Airport allocates its air-operations costs--e.
g.,
maintaining runways-to the Airlines and general aviation in
proportion to their airfield use, and its terminal maintenance
costs to the Airlines and concessions in proportion to each
tenant's square footage. It charges the Airlines 100% of their
allocated costs, but general aviation only 20% of its costs. The
concessions' rates substantially exceed their allocated costs,
yielding a sizable surplus that offsets the general aviation
shortfall and has swelled the Airport's reserve fund by more than
$1 million per year. After the County Board of Aeronautics
unilaterally increased the Airlines' fees, they challenged the new
rates, attacking (1) the Airport's failure to allocate any airfield
costs to the concessions, (2) the surplus generated by the fee
structure, and (3) the Airport's failure to charge general aviation
100% of its allocated costs. They alleged that these features made
the fees unreasonable and thus unlawful under the Anti-Head Tax Act
(AHTA)-which prohibits States and their subdivisions from
collecting user fees, 49 U. S. C. App. § 1513(a), other than
"reasonable rental charges, landing fees, and other service charges
from aircraft operators for the use of airport facilities," §
1513(b)-and under the Airport and Airway Improvement Act of 1982
(AAIA). The Airlines also asserted that the Airport's treatment of
general aviation discriminates against interstate commerce in favor
of primarily local traffic, in violation of the Commerce Clause.
The District Court held,
inter alia, that the Airlines have
an implied right of action under the AHTA, but not the AAIA, and no
cause of action under the Commerce Clause, and that the challenged
fees are not unreasonable under the AHTA. The Court of Appeals
affirmed in principal part, but held that the Airport had
misallocated fees for the cost of providing "crash, fire, and
rescue" (CFR) services.
356
Held:
1. The Court declines to decide whether there is a private right
of action under the AHTA but assumes, for purposes of this case,
that the right exists. A prevailing party may defend a judgment on
any ground properly raised below, without filing a cross-petition,
so long as that party seeks to preserve, and not to change, the
judgment. The Airport did not cross-petition on the CFR issue it
lost below, and resolving the private right of action issue in its
favor would alter that portion of the judgment. Pp. 364-365.
2. The Airport's fees have not been shown to be unreasonable
under the AHTA. Pp. 365-373.
(a) The AHTA sets no standards for determining a fee's
reasonableness. In the absence of guidance from the Secretary of
Transportation, the Court adopts the parties' suggestion to resolve
the reasonableness issue using the standards stated in
Evansville- Vanderburgh Airport Authority Dist. v.
Delta
Airlines, Inc., 405 U. S. 707, for
determining reasonableness under the Commerce Clause. Although
Congress enacted the AHTA because it found unsatisfactory the end
result in
Evansville-the validation of "head" taxes-§
1513(b) permits "reasonable" charges and the
Evansville
formulation has been used to determine "reasonableness" in related
contexts, see,
e. g., American Trucking Assns., Inc. v.
Scheiner, 483
U. S. 266, 289-290. Thus, the levy here is reasonable if it (1)
is based on some fair approximation of the facilities' use, (2) is
not excessive in relation to the benefits conferred, and (3) does
not discriminate against interstate commerce.
Evansville,
supra, at 716-717. Pp.365-369.
(b) The Airport's decision to allocate air-operations costs to
the Airlines and general aviation, but not to the concessions,
appears to "reflect a fair, if imperfect, approximation of the use
of facilities for whose benefit they are imposed."
Evansville, 405 U. S., at 716-717. While those operations
generate the concessions' customer flow and, thus, benefit the
concessions, only the Airlines and general aviation actually use
the runways and navigational facilities. Accepting the District
Court's finding that the Airlines were charged only the break-even
costs, the Court concludes that the fees in question were not
"excessive in comparison with the governmental benefit conferred."
Id., at 717. Nor is the Airport's methodology unlawful
because it generates large surpluses. Since § 1513(b) applies only
to fees charged to "aircraft operators," it does not authorize
judicial inquiry focused on the surplus generated from the
concessions' fees. The Court rejects the Airlines' argument that it
should take into account concession revenues, as the Seventh
Circuit did in a 1984 decision, when deciding whether the Airlines'
fees are reasonable. The Seventh Circuit overlooked the Department
of
357
Transportation's regulatory authority regarding the federal
aviation laws. In view of the Department's authority, there is no
cause for courts to offer a substitute for conventional public
utility regulation. While the AAIA directly addresses the use of
airport revenues, the Airlines do not suggest that the Airport has
misused the funds in violation of that Act and did not seek review
of the lower courts' ruling that they had no AAIA cause of action.
Finally, the record in this case does not support the Airlines'
argument that the lower general aviation fees discriminate against
interstate commerce and travel. There is no proof that the large
and diverse general aviation population served by the Airport
travels typically intrastate and seldom ventures beyond Michigan's
borders. Pp. 369-373.
3. The fees do not violate the "dormant" Commerce Clause. Even
if the AHTA's express permission for States' imposition of
reasonable fees were insufficiently clear to rule out dormant
Commerce Clause analysis, the Court has already found the
challenged fees reasonable under the AHTA using a standard taken
directly from the Court's dormant Commerce Clause jurisprudence.
Pp.373-374.
955 F.2d
1054, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and
SOUTER, JJ., joined. THOMAS, J., filed a dissenting opinion,
post, p. 374. BLACKMUN, J., took no part in the
consideration or decision of the case.
Walter A. Smith, Jr., argued the cause for
petitioners.
With him on the briefs was
Jonathan S.
Franklin.
William F. Hunting, Jr., argued the cause for respondents. With
him on the brief were Mark S. Allard, Robert A. Buchanan, and
Michael M. Conway.
Edward C. DuMont argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Days, Assistant Attorney General Hunger, Deputy
Solicitor General Wallace, William Kanter, Christine N. Kohl, Paul
M. Geier, and Dale C. Andrews.
*
*Briefs of
amici curiae urging reversal were filed for
the Air Transport Association of America by
Mary E. Downs;
for Thrifty Rent-A-Car System, Inc., by
Randall J.
Holder and
Nancy Glisan Gourley; and for the
358
JUSTICE GINSBURG delivered the opinion of the Court. Seven
commercial airlines, petitioners in this case, assert that certain
airport user fees charged to them are unreasonable and
discriminatory, in violation of the federal Anti-Head Tax Act
(AHTA), 49 U. S. C. App. § 1513, and the Commerce Clause. Because
the record, as it now stands, does not warrant a judicial
determination that the fees in question are unreasonable or
unlawfully discriminatory, we affirm the judgment of the Court of
Appeals.
I A
The user fees contested in this case are charged by the Kent
County International Airport in Grand Rapids, Michigan. The Airport
is owned by respondent Kent County and operated by respondents Kent
County Board of Aeronautics and Kent County Department of
Aeronautics (collectively,
American Trucking Associations, Inc., by Andrew L. Frey, Andrew
J. Pincus, Daniel R. Barney, and Robert Digges, Jr.
Briefs of
amici curiae urging affirmance were filed for
the State of New Hampshire et al. by
Jeffrey R. Howard,
Attorney General of New Hampshire, and
Monica A. Ciolfi,
Assistant Attorney General,
Grant Woods, Attorney General of
Arizona,
Daniel E. Lungren, Attorney General of California,
Robert A. Butterworth, Attorney General of Florida,
Bonnie J. Campbell, Attorney General of Iowa,
Michael E. Carpenter, Attorney General of Maine,
Frank J. Kelley, Attorney General of Michigan,
Joseph P. Mazurek, Attorney General of Montana,
Frederick
P. DeVesa, Acting Attorney General of New Jersey,
Heidi
Heitkamp, Attorney General of North Dakota,
Mark
Barnett, Attorney General of South Dakota, and
James E.
Doyle, Attorney General of Wisconsin; for the City of Los
Angeles by
James K. Hahn, Gary R. Netzer, Breton K. Lobner,
Steven S.
Rosenthal, and
Anthony L. Press; for
the Aircraft Owners and Pilots Association by
John S.
Yodice; for the Airports Council International-North America
by
Patricia A. Hahn; for the American Association of Airport
Executives by
Scott P. Lewis; for the National Business
Aircraft Association, Inc., et al. by
Raymond J.
Rasenberger; and for the U. S. Conference of Mayors et al.
by
Richard Ruda.
359
the Airport). Petitioners are seven commercial airlines serving
the Airport (the Airlines).
The Airport collects rent and fees from three groups of users:
(1) commercial airlines, including petitioners; (2) "general
aviation," i.
e., corporate and privately owned aircraft not
used for commercial, passenger, cargo, or military service; and (3)
nonaeronautical concessionaires, including car rental agencies, the
parking lot, restaurants, gift shops, "rent-a-cart" facilities, and
other small vendors. Since 1968, the Airport has allocated its
costs and set charges to aircraft operators pursuant to a "cost of
service" accounting system known as the "Buckley methodology." 1
This system is designed to charge the Airlines only for the cost of
providing the particular facilities and services they use.2
Under its accounting system, the Airport first determines the
costs of operating the airfield and the passenger terminal, and
allocates these costs among the users of the facilities. Costs
associated with airfield operations
(e. g., maintaining the
runways and navigational facilities) are allocated to the Airlines
and general aviation in proportion to their use of the airfield. No
portion of these costs is allocated to the concessions. Costs
associated with maintaining the airport terminal are allocated
among the terminal tenantsthe Airlines and the concessions-in
proportion to each tenant's square footage.3
The Airport then establishes fees and rates for each user group.
It charges the Airlines 100% of the costs allocated to them, in the
form of aircraft landing and parking fees (for use of the
airfield), and rent (for the terminal space the Air-
1 See James C. Buckley, Rental Fee Recommendations (Feb. 1969),
App. 223-275.
2 In contrast, "residual cost" accounting systems base rates and
fees on the total cost of operating the airport. See Brief for City
of Los Angeles as
Amicus Curiae 5.
3 The parking lot is owned and operated by the Airport itself
and is not material to this dispute.
360
lines occupy).4 General aviation, however, is charged at a lower
rate. The Airport recovers from that user group a per gallon fuel
flowage fee for local aircraft and a landing fee for aircraft based
elsewhere. These fees account for only 20% of the airfield costs
allocated to general aviation.
In relation to costs, the Airport thus "undercharges" general
aviation. At the same time, measured by allocated costs, the
Airport vastly "overcharges" the concessions. The Airlines pay a
cost-based per square foot rate for their terminal space. The
concessions, however, pay market rates for their space.5 Market
rates substantially exceed the concessions' allocated costs and
yield a sizable surplus.6 The surplus offsets the general aviation
shortfall of approximately $525,000 per year, and has swelled the
Airport's reserve fund by more than $1 million per year.
B
U sing the "Buckley methodology" just described, the Airlines
and the Airport periodically negotiated and agreed upon fees to be
charged through December 31, 1986. Following a new rate study made
in 1986, the Airport proposed increased fees beginning January 1,
1987. App. 193 (Plaintiffs' Exh. 6). The Airlines objected to the
higher fees and failed to reach an agreement with the Airport.
Ultimately, the County Board of Aeronautics adopted an ordinance
unilaterally increasing the fees.7 On the effective date of
4 The Airlines are also charged for the cost of providing
"crash, fire, and rescue" services, and amortization fees for
assets acquired by the Airport. 5 Most concessions pay 10% of their
gross receipts as rent for space.
6 For example, the Airport's annual net revenues from 1987 to
1989 ranged from approximately $1.6 million to $1.9 million. App.
278-279 (Plaintiffs' Exhs. 301 and 355).
7 The ordinance increased aircraft landing fees by $.20 per
thousand pounds, and increased terminal rent charges by $6.67 per
square foot for prime heated and air-conditioned space, $.59 per
square foot for nonprime air-conditioned space, and $1.84 per
square foot for nonprime, heated, nonair-conditioned space. The
ordinance also decreased aircraft parking fees by $.12 per thousand
pounds. 738 F. Supp. 1112, 1115 (WD Mich. 1990).
361
the ordinance, April 1, 1988, the Airlines sued the Airport,
primarily challenging post-December 31, 1986, rates. The Airlines
attacked (1) the Airport's failure to allocate to the concessions a
portion of the airfield costs, (2) the surplus generated by the
Airport's fee structure, and (3) the Airport's failure to charge
general aviation 100% of its allocated airfield costs. These
features, the Airlines alleged, made the fees imposed on them
unreasonable and thus unlawful under the AHTA, as added, 87 Stat.
90, and as amended, 49 U. S. C. App. § 1513, and the Airport and
Airway Improvement Act of 1982 (AAIA), 96 Stat. 686, as amended, 49
U. S. C. App. § 2210. The Airlines also asserted that the Airport's
treatment of general aviation discriminates against interstate
commerce in favor of primarily local traffic, in violation of the
Commerce Clause, U. S. Const., Art. I, § 8, cl. 3.
The parties filed cross-motions for summary judgment.
In the first of three opinions, the District Court denied the
motions, holding that the Airport's cost methodology is not
per
se unreasonable. App. to Pet. for Cert. 57. In its second
opinion, the District Court held that the Airlines have an implied
right of action to challenge the fees under the AHTA but not under
the AAIA, and that the Airlines have no cause of action under the
Commerce Clause.
Id., at 4246. Following a bench trial, the
District Court issued its third and final opinion, concluding that
the challenged fees are not unreasonable under the AHTA. 738 F.
Supp. 1112 (WD Mich. 1990).
The Court of Appeals for the Sixth Circuit affirmed the District
Court's judgment in principal part.
955 F.2d
1054 (1992). In accord with the District Court, the Court of
Appeals held that the AHTA impliedly confers a private right of
action on the Airlines, but the AAIA does not.
Id., at 1058.
On the merits, the Court of Appeals (1) upheld as reasonable under
the AHTA the bulk of the charges that the Airport imposes on the
Airlines, and (2) rejected the Air-
362
lines' dormant Commerce Clause claim on the ground that the AHTA
regulates the area.
Id., at 1060-1064.
On one matter, however, the Court of Appeals reversed the
District Court's judgment and remanded the case. The District Court
had upheld as reasonable under the AHTA the Airport's decision to
allocate to the Airlines 100% of the costs of providing "crash,
fire, and rescue" (CFR) services. 738 F. Supp., at 1119.
Emphasizing that the CFR facilities service all aircraft, not just
the Airlines, the Court of Appeals held that the Airport must
allocate CFR costs between the Airlines and general aviation. 955
F. 2d, at 1062-1063, 1064.
Petitioning for this Court's review, the Airlines challenged the
Court of Appeals' adverse rulings on the AHTA and Commerce Clause
issues. The Airport did not crosspetition for review of the Sixth
Circuit's judgment to the extent that it favored the Airlines;
specifically, the Airport did not petition for review of the remand
to the District Court for allocation of the costs of CFR services
between the Airlines and general aviation. We granted certiorari,
508 U. S. 959 (1993), to resolve a conflict between the decision
under review and a decision of the Court of Appeals for the Seventh
Circuit,
Indianapolis Airport Authority v.
American
Airlines, Inc., 733 F.2d
1262 (1984), which declared key parts of a similar fee
structure unreasonable under the AHTA.
II A
In Evansville- Vanderburgh Airport Authority Dist. v.
Delta Airlines, Inc., 405 U. S. 707 (1972),
this Court held that the Commerce Clause does not prohibit States
or municipalities from charging commercial airlines a "head tax" on
passengers boarding flights at airports within the jurisdiction, to
defray the costs of airport construction and maintenance. We stated
in
Evansville: "At least so long as the toll is based
363
on some fair approximation of use or privilege for use, ... and
is neither discriminatory against interstate commerce nor excessive
in comparison with the governmental benefit conferred, it will pass
constitutional muster, even though some other formula might reflect
more exactly the relative use of the state facilities by individual
users."
Id., at 716-717.
Concerned that our decision in
Evansville might prompt a
proliferation of local taxes burdensome to interstate air
transportation, Congress enacted the AHTA. See
Aloha Airlines,
Inc. v.
Director of Taxation of Haw., 464 U. S. 7, 9-10 (1983)
(summarizing history of AHTA's enactment); S. Rep. No. 93-12, p. 4
(1973) (Congress intended AHTA to "ensure ... that local 'head'
taxes will not be permitted to inhibit the flow of interstate
commerce.");
id., at 17 ("The head tax ... cuts against the
grain of the traditional American right to travel among the
States.").
The AHTA provides in pertinent part:
"(a) Prohibition; exemption
"No State (or political subdivision thereof ... ) shall levy or
collect a tax, fee, head charge, or other charge, directly or
indirectly, on persons traveling in air commerce or on the carriage
of persons traveling in air commerce or on the sale of air
transportation or on the gross receipts derived therefrom ....
"(b) Permissible State taxes and fees
"[NJothing in this section shall prohibit a State (or political
subdivision thereof ... ) from the levy or collection of taxes
other than those enumerated in subsection (a) of this section,
including property taxes, net income taxes, franchise taxes, and
sales or use taxes on the sale of goods or services; and nothing in
this section shall prohibit a State (or political subdivision
thereof ... ) owning or operating an airport from levying or
collecting reasonable rental charges, landing fees, and other
364
service charges from aircraft operators for the use of airport
facilities." 49 U. S. C. App. § 1513.
Primarily, the Airlines urge that the Airport's fees overcharge
them in violation of the AHTA. Before reaching that issue, however,
we face a threshold question. The United States as
amicus
curiae and, less strenuously, the Airport, urge that the
Airlines have no right to enforce the AHTA through a private action
commenced in a federal court of first instance. Instead, they
maintain, complaints under the AHTA must be pursued initially in
administrative proceedings before the Secretary of Transportation,
subject to judicial review in the courts of appeals.
The threshold question is substantial: If Congress intended no
right of immediate access to a federal court under the AHTA, then
the Airlines' AHTA claim should have been dismissed, not
adjudicated on the merits as it was, indeed in part favorably to
the Airlines. However, the Airport filed no cross-petition for
certiorari seeking to upset the judgment to the extent that it
rejected the Airport's CFR cost allocation (100% to the Airlines)
as inconsonant with the AHTA. For that reason, we decline to
resolve the private right of action question in this case.
A prevailing party need not cross-petition to defend a judgment
on any ground properly raised below, so long as that party seeks to
preserve, and not to change, the judgment. See,
e. g.,
Thigpen v.
Roberts, 468 U. S. 27, 29-30
(1984). A cross-petition is required, however, when the respondent
seeks to alter the judgment below. See,
e. g.,
Trans World Airlines, Inc. v.
Thurston, 469 U. S. 111, 119, n. 14
(1985);
United States v.
New York Telephone Co., 434
U. S. 159, 166, n. 8 (1977);
Federal Energy Administration
v.
Algonquin SNG, Inc., 426 U. S. 548, 560, n. 11
(1976);
United States v.
ITT Continental Baking Co.,
420 U. S. 223,
226-227, n. 2 (1975). Alteration would be in order if the private
right of action question were resolved in favor of the Airport. For
then, the entire judgment would be undone, including
365
the portion remanding for reallocation of CFR costs between the
Airlines and general aviation. The Airport's failure to file a
cross-petition on the CFR issue-the issue on which it was a
judgment
loser-thus leads us to resist the plea to declare
the AHTA claim unfit for District Court adjudication.8
The question whether a federal statute creates a claim for
relief is not jurisdictional. See
Air Courier Conference v.
Postal Workers, 498 U. S. 517, 523, n. 3
(1991);
Burks v.
Lasker, 441 U. S. 471, 476, n. 5
(1979);
Mt. Healthy City Bd. of Ed. v.
Doyle,
429 U. S. 274,
278-279 (1977);
Bell v.
Hood, 327 U. S. 678, 682
(1946). Accordingly, we shall assume, solely for purposes of this
case, that the alleged AHTA private right of action exists.
B
The AHTA prohibits States and their subdivisions from levying a
"fee" or "other charge" "directly or indirectly" on "persons
traveling in air commerce or on the carriage of persons traveling
in air commerce." 49 U. S. C. § 1513(a). Landing fees, terminal
charges, and other airport user fees of the sort here challenged
fit § 1513(a)'s description. As we confirmed in an opinion
invalidating a state tax on airlines' gross receipts, § 1513(a)'s
compass is not limited to direct "head" taxes.
Aloha
Airlines, 464 U. S., at 12-13.
But § 1513(a) does not stand alone. That subsection's
prohibition is immediately modified by § 1513(b)'s permission. See
Wardair Canada Inc. v.
Florida Dept. of Revenue,
477
8 Berkemer v.
McCarty, 468 U. S. 420, 435, n. 23
(1984), is not to the contrary. There the Court of Appeals had
reversed the respondent's criminal conviction, holding postarrest
incriminating statements inadmissible under
Miranda v.
Arizona, 384
U. S. 436 (1966). Because he prevailed in the Court of Appeals,
obtaining a judgment entirely in his favor, respondent could not
have filed a cross-petition. Accordingly, his contention that
certain pre arrest statements (whose admissibility the Court of
Appeals had left ambiguous) were inadmissible was a permissible
argument in defense of the judgment below.
366
u. S. 1, 15-16 (1986) (Burger, C. J., concurring in part and
concurring in judgment) (§ 1513(b)'s saving clause was enacted in
response to the States' concern that § 1513(a)'s "sweeping
provision would prohibit even unobjectionable taxes such as landing
fees ... "). Sections 1513(a) and (b) together instruct that
airport user fees are permissible only if, and to the extent that,
they fall within § 1513(b)'s saving clause, which removes from §
1513(a)'s ban "reasonable rental charges, landing fees, and other
service charges from aircraft operators for the use of airport
facilities." 9
While § 1513(b) allows only
"reasonable rental charges,
landing fees, and other service charges," the AHTA does not set
standards for assessing reasonableness. Courts, we recognize, are
scarcely equipped to oversee, without the initial superintendence
of a regulatory agency, rate structures and practices. See
Colorado Interstate Gas Co. v.
FPC, 324 U. S. 581, 589 (1945)
("Rate-making is essentially a legislative function."); cf.
Far
East Conference v.
United States, 342 U. S. 570, 574
(1952) ("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").10 The
Secretary of Transportation is
9 The Airport's argument, accepted by the dissent, that user
fees are entirely outside the scope of the AHTA because they are
not "head" taxes, advances an untenable reading of the statute. We
note, in this regard, § 1513(b)'s recognition, in its first clause,
of "taxes
other than those enumerated in subsection (a) of this
section, including property taxes, net income taxes, franchise
taxes, and sales or use taxes on the sale of goods or services"
(emphasis added). Unlike the property and income taxes listed in
the first clause of § 1513(b), the airport user fees listed in §
1513(b)'s second clause are
not described as taxes "other
than those enumerated in subsection (a)." The statute, in sum, is
hardly ambiguous on this matter: User fees are covered by §
1513(a), but may be saved by § 1513(b).
10 The reasonableness of the Airport's rates might have been
referred, prior to any court's consideration, to the Department of
Transportation under the primary jurisdiction doctrine. That
doctrine is "specifically ap-
367
charged with administering the federal aviation laws, including
the AHTA.ll His Department is equipped, as courts are not, to
survey the field nationwide, and to regulate based on a full view
of the relevant facts and circumstances. If we had the benefit of
the Secretary's reasoned decision concerning the AHTA's permission
for the charges in question, we would accord that decision
substantial deference. See
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845
(1984). Lacking guidance from the Secretary, however, and compelled
to give effect to the statute's use of "reasonable," we must look
elsewhere.
The parties point to the standards this Court employs to measure
the reasonableness of fees under the Commerce Clause, as stated in
the
Evansville case, see
supra, at 362363; they
invite our use of the
Evansville standards as baselines for
determining the reasonableness of fees under the
plicable to claims properly cognizable in court that contain
some issue within the special competence of an administrative
agency" and permits courts to make a "'referral' to the agency,
staying further proceedings so as to give the parties reasonable
opportunity to seek an administrative ruling."
Reiter v.
Cooper, 507 U.
S. 258, 268 (1993). However, as the parties have not briefed or
argued this question, we decline to invoke the doctrine here.
11 The Federal Aviation Act, which encompasses the AHTA,
authorizes the Secretary of Transportation to conduct
investigations, issue orders, and promulgate regulations necessary
to implement the statute. See 49 U. S. C. App. § 1354(a). The Act
provides a mechanism for administrative adjudication, subject to
judicial review in the courts of appeals, of alleged violations.
See § 1482(a) ("[a]ny person may file with the Secretary of
Transportation ... a complaint in writing with respect to anything
done or omitted to be done by any person in contravention of any
provisions of [the Act], or of any requirement established pursuant
thereto"); § 1486 (judicial review provision). The Secretary has
established procedures for adjudicating such complaints through the
Federal Aviation Administration, see 14 CFR pt. 13 (1993), and the
FAA has entertained challenges to the reasonableness of airport
landing fees under the AHTA. See
New England Legal
Foundation v.
Massachusetts Port Authority, 883 F.2d
157, 159-166
(CAI1989).
368
AHTA.12 We accept the parties' suggestions. Although Congress
enacted the AHTA because it found unsatisfactory the end result of
our Commerce Clause analysis in
Evansville-the validation of
"head" taxes-Congress specifically permitted, through § 1513(b)'s
saving clause, "reasonable rental charges, landing fees, and other
services charges." 13 The formulation in
Evansville has been
used to determine "reasonableness" in related contexts. See,
e.
g., American Trucking Assns., Inc. v.
Scheiner, 483 U. S. 266, 289-290
(1987) (applying
Evansville test to assess validity under
Commerce Clause of state taxes applied to interstate motor
carrier);
Massachusetts v.
United States, 435 U. S. 444, 466467
(1978) (applying
Evansville test to determine
constitutionality of tax under intergovernmental immunity
doctrine). It will suffice for the purpose at hand.14
12 See Brief for Petitioners 20, 22-23; Reply Brief for
Petitioners 3-4; Brief for Respondents 32; see also Brief for
United States as
Amicus Curiae 23-29 (arguing that
Evansville reasonableness test is satisfied without
explicitly endorsing its application).
13 Contrary to the dissent's suggestion, applying
Evansville's standards to determine whether airport fees are
"reasonable" under § 1513(b) would not permit airports to "impos[e]
a modest per passenger fee on airlines as a service charge for use
of airport facilities."
Post, at 380. Section 1513(a)'s
prohibition is written broadly, whereas § 1513(b) is narrow, saving
only "reasonable rental charges, landing fees, and other service
charges." A per passenger service charge would be an impermissible
"head charge" under § 1513(a), and does not fit into any of the
three categories saved by § 1513(b). The user fees challenged here,
by contrast, are "rental charges, landing fees, and other service
charges," § 1513(b), that would be prohibited as "fee[s]" or "other
charge[s]" under § 1513(a), unless they are "reasonable." See
supra, at 365-366.
14 It remains open to the Secretary, utilizing his Department's
capacity to comprehend the details of airport operations across the
country, and the economics of the air transportation industry, to
apply some other formula (including one that entails more rigorous
scrutiny) for determining whether fees are "reasonable" within the
meaning of the AHTA; his exposition will merit judicial approbation
so long as it represents "a permissible construction of the
statute."
Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837, 842-845
(1984).
369
To recapitulate, a levy is reasonable under
Evansville if
it (1) is based on some fair approximation of use of the
facilities, (2) is not excessive in relation to the benefits
conferred, and (3) does not discriminate against interstate
commerce. 405 U. S., at 716-717. The Airlines contend that the
Airport's fee structure fails the
Evansville test on three
main counts. We consider each contention in turn.
1
As noted above, the Airport allocates its air-operations costs
between the Airlines and general aviation; the concessions in fact
supply the lion's share of the Airport's revenues, see
supra, at 360, but are allocated none of these costs. The
Airlines contend that the concessions benefit substantially, albeit
indirectly, from air operations, because those operations generate
the concessions' customer flow. Therefore, the Airlines urge, the
Airport's failure to allocate to the concessions any of the
airfield-associated costs violates
Evansville's requirement
that user fees be "based on some fair approximation of use or
privilege for use." 405 U. S., at 716-717. The cost reallocation
sought by the Airlines would not change the market-based rent paid
by the concessions, see
supra, at 360, but it would lower
the charges imposed on the Airlines.
We see no obvious conflict with
Evansville in the
Airport's allocation of the costs of air operations to the Airlines
and general aviation, but not to the concessions. Only the Airlines
and general aviation actually use the runways and navigational
facilities of the Airport; the concessions use only the terminal
facilities. The Airport's decision to allocate costs according to a
formula that accounts for this distinction appears to "reflect a
fair, if imperfect, approximation of the use of facilities for
whose benefit they are imposed." 405 U. S., at 716-717.15
15 See also 405 U. S., at 718-719 (airports may lawfully
distinguish among classes of users, including aircraft operators
and concessions, based on their differing uses of airport
facilities);
Denver v.
Continental Air Lines,
370
The District Court found that (with one minor exception 16) the
Airport charged the Airlines "the break-even costs for the areas
they use." 738 F. Supp., at
1119.17 In this light, we cannot
conclude that the Airlines were charged fees "excessive in
comparison with the governmental benefit conferred."
Evansville,
supra, at 717. See also Brief for United States as
Amicus
Curiae 25 ("As long as an airport's charges to air carriers do
not result in revenues that exceed by more than a reasonable margin
the costs of servicing those carriers, the Secretary would normally
sustain those charges as reasonable under federal law.") (citing
Federal Aviation Administration,
Airport Compliance
Requirements, Order No. 5190.6A §§4-13, 4-14, pp. 20-22 (Oct.
2, 1989), and 14 CFR § 399.110(f) (1993)).
2
The Airlines also contend that the Airport's fee methodology is
unlawful because, by imposing on the Airlines virtu-
Inc., 712 F. Supp. 834,838,839 (Colo. 1989) (rejecting a
similar argument, noting: "Nothing in the history and purpose of
the Anti-Head Tax Act indicates that Congress intended the courts
to act as a public utility commission and intervene in the setting
of airport rates and charges through the adoption or rejection of
any particular type of cost accounting methodology. Denver's
division of costs and revenues between airlines and concessionaires
is facially a reasonable approach to establishing rental charges,
terminal rates, landing fees and other service charges which are
collected from the users of the facilities at Stapleton
[Airport].").
16 The District Court found that the Airport overcharged the
Airlines for aircraft parking and ordered the Airport "to
recalculate this fee to result in a true break-even charge." 738 F.
Supp., at 1120. The Airport did not appeal this order.
17The Airlines do not dispute that they are charged only their
allocated share of the airfield and terminal costs. They assert,
however, that the Airport has allocated to them excessive "carrying
charges" or amortization fees for capital improvements. The Court
of Appeals specifically addressed and rejected this contention,
concluding that the rate charged "is reasonable and should not
result in a net present value which exceeds the initial cost of the
[capital improvements] project."
955 F.2d
1054, 1063
(CA6 1992). We have no cause to disturb that
determination.
371
ally all of the air-operations costs, and exacting fees from the
concessions far in excess of their allocated costs, the methodology
generates huge surpluses. The AHTA, however, does not authorize
judicial inquiry focused on the amount of the Airport's surplus.
The statute requires only that an airport's fees not "be excessive
in relation to costs incurred by the taxing authorities" for
benefits conferred on the user.
Evansville, supra, at 719.
As we have explained, the Airlines are charged only for the costs
of benefits they receive. The Airport's surplus is generated from
fees charged to concessions, and the amounts of those fees are not
at issue. As the Court of Appeals pointed out, § 1513(b) applies
only to fees charged to "aircraft operators." 955 F. 2d, at
1060.
The Airlines urge us to consider the effect of the concession
revenues when deciding whether the fees charged the Airlines are
reasonable, pointing to the Seventh Circuit's analysis in
Indianapolis Airport v.
American Airlines, Inc., 733
F. 2d, at 1268 (invalidating the Indianapolis Airport's fee
structure on the ground,
inter alia, that the Airport's
generation of a surplus from the concession fees indirectly raised
the costs of air travel). The Seventh Circuit, however, overlooked
a key factor. It reasoned explicitly from the incorrect premise
that "[n]o agency has regulatory authority over the rate practices
of the Indianapolis Airport Authority."
Ibid. The Seventh
Circuit panel believed that "the duty of regulation [fell] to the
courts in the enforcement of the state and federal statutes
forbidding unreasonable rates."
Ibid. That court thought it
necessary to "imagine [itself] in the role of a regulatory agency."
Ibid. In contrast, our opinion in this case emphasizes that
the Department of Transportation has regulatory authority to
enforce the federal aviation laws, including the AHTA and the AAIA,
see
supra, at 366367, and n. 11, so there is no cause for
courts to offer a substitute for "conventional public utility
regulation," 733 F. 2d, at 1268.
372
We resist inferring a limit on airport surpluses from the AHTA
for a further reason. That measure does not mention surplus
accumulation, but another statute, the AAIA, directly addresses the
use of airport revenues. The AAIA requires that
"all
revenues generated by the airport ... be expended for the capital
or operating costs of the airport .... " 49 U. S. C. App. §
2210(a)(12) (emphasis supplied). The Airlines do not suggest that
the Airport is using its surplus for any purpose other than
Airport-related expenses, nor did they seek review of the lower
courts' holding that they had no right of action under the AAIA.
955 F. 2d, at 1058-1059. For these reasons, even if the AAIA is
read to impose a limit on the accumulation of surplus revenues, see
Brief for United States as
Amicus Curiae 26-27, the question
whether the Airport's surpluses are excessive is not properly
before us.
3
Finally, the Airlines contend that the Airport's fees
discriminate against them in favor of general aviation, in
violation of
Evansville's instruction that airport tolls be
nondiscriminatory regarding interstate commerce and travel. As
earlier recounted, see
supra, at 359-360, the Airlines pay
100% of their allocated costs while general aviation users are
assessed fees covering only 20% of their allocated costs.
We need not consider whether the Airlines would have a
compelling point had they established that general aviation is
properly categorized as intrastate commerce. Cf.,
e.
g., Chemical Waste Management, Inc. v.
Hunt,
504 U. S. 334,
339-348 (1992) (invalidating state fee on hazardous wastes
generated outside, but disposed of inside, the State, because it
discriminated against interstate commerce);
American Trucking
Assns., Inc. v.
Scheiner, 483 U. S., at 268-269
(invalidating state highway use taxes because they discriminated
against interstate motor carriers). The record in this case, it
suffices to say, does not support the Airlines' argument. We cannot
assume, in the total absence of proof, that
373
the large and diverse general aviation population served by the
Airport travels typically intrastate and seldom ventures beyond
Michigan's borders. 18
III
The Airlines assert that, even if the Airport's user fees are
not unreasonable under the AHTA, they violate the "dormant"
Commerce Clause. Even if we considered the AHTA's express
permission for States' imposition of "reasonable rental charges,
landing fees, and other service charges from aircraft operators for
the use of airport facilities," 49 U. S. C. App. § 1513(b),
insufficiently clear 19 to rule out judicial dormant Commerce
Clause analysis,20 petitioners' argu-
18 The Airlines suggest that they had no opportunity to develop
a record demonstrating discrimination in favor of intrastate
carriers, because the District Court granted summary judgment for
respondents on the Commerce Clause question. See Reply Brieffor
Petitioners 9-10, n. 14. This argument does not fly. The case did
proceed to trial on the AHTA claim. The Airlines have asserted that
Evansville's standard governs AHTA reasonableness. Thus,
under their own theory, they had to demonstrate the equivalent of a
violation of the dormant Commerce Clause-i.
e.,
discrimination against interstate commerce-in order to prevail at
the AHTA trial. The Airlines' belated suggestion-which contradicts
their endorsement of
Evansville, see Brief for Petitioners
22-23-that discrimination in favor of intrastate commerce is
relevant under the Commerce Clause, but not under the AHTA, is
unimpressive. The AHTA was a direct response to
Evansville;
Congress' principal concern in enacting the measure was to
proscribe fees that unduly burden interstate commerce. See,
e. g., S. Rep. No. 93-12, p. 17 (1973). Covered fees,
as we have emphasized, include, but are not limited to, head taxes.
See
supra, at 365-366, and n.9.
19 See,
e. g., Wyoming v.
Oklahoma, 502 U. S. 437, 458 (1992)
(requiring that Congress "manifest its unambiguous intent before a
federal statute will be read to permit" state regulation
discriminating against interstate commerce).
20 See,
e. g., Merrion v.
Jicarilla Apache Tribe,
455 U. S. 130,
154 (1982) ("Once Congress acts, courts are not free to review
state taxes or other regulations under the dormant Commerce Clause.
When Congress has struck the balance it deems appropriate, the
courts are no longer needed to prevent States from burdening
commerce, and it matters not that the
374
ment would fail. We have already found the challenged fees
reasonable under the AHTA through the lens of
Evansville-that is, under a reasonableness standard taken
directly from our dormant Commerce Clause jurisprudence.
***
For the reasons stated, and without prejudging the outcome of
any eventual proceeding before or regulation by the Secretary of
Transportation, we affirm the judgment of the Court of Appeals.
It is so ordered.
JUSTICE BLACKMUN took no part in the consideration or decision
of this case.
JUSTICE THOMAS, dissenting.
Today the Court transforms a statutory prohibition on a narrow
class of charges on air travel into a broad mandate for federal
regulation and review of virtually all airport fees. I disagree
with the Court that the landing fees, rental charges, and carrying
charges challenged here fall within the scope of the Anti-Head Tax
Act (AHTA or Act), 49 U. S. C. App. § 1513. Unlike the Court, I do
not believe that the Act imposes a "reasonableness" requirement on
all airport charges and user fees. Instead, the Act merely
prohibits fees, taxes, and charges imposed on the bases specified
in § 1513(a), and leaves airports free to impose other charges,
subject to the restrictions of the dormant Commerce Clause. Because
the Act does not apply to the fees at issue in this case, I would
remand for consideration of petitioners' Commerce Clause claim.
Accordingly, I respectfully dissent.
I
As the Court recognizes,
ante, at 362-363, Congress
passed the AHTA in response to this Court's decision in
courts would invalidate the state tax or regulation under the
Commerce Clause in the absence of congressional action.").
375
Evansville- Vanderburgh Airport Authority Dist. v.
Delta Airlines, Inc., 405 U. S. 707 (1972),
which upheld against Commerce Clause challenge the imposition of a
per capita ("head") tax on air travelers. The Act was designed
primarily to deal with the proliferation of local head taxes in the
wake of the
Evansville decision.
Aloha Airlines, Inc.
v.
Director of Taxation of Haw., 464 U. S. 7, 9, 13
(1983).
Two AHTA provisions are relevant here. Section 1513(a) prohibits
state and local governments from imposing "a tax, fee, head charge,
or other charge, directly or indirectly, on persons traveling in
air commerce or on the carriage of persons traveling in air
commerce or on the sale of air transportation or on the gross
receipts derived therefrom." Section 1513(b), however, states that
"nothing in [the Act]" prohibits the imposition of "taxes other
than those enumerated in subsection (a)," including, among other
things, property and net income taxes, and that the Act does not
prohibit "reasonable rental charges, landing fees, and other
service charges" collected from "aircraft operators for the use of
airport facilities. "
In the Court's view, § 1513(a) prohibits virtually all airport
user fees,
ante, at 365 ("Landing fees, terminal charges,
and other airport user fees of the sort here challenged fit §
1513(a)'s description"), and § 1513(b) "saves" those fees that are
"reasonable,"
ante, at 366, n. 9 ("[U]ser fees are covered
by § 1513(a), but may be saved by § 1513(b)"). The Court supports
its broad reading of § 1513(a) in part by noting that the section
prohibits not only head taxes but also taxes on gross receipts.
Ante, at 365 (citing
Aloha Airlines, 464 U. S., at
12-13). That, however, merely states the obvious. Section 1513(a)
expressly prohibits taxes "on the gross receipts derived" from the
sale of air transportation. The mere fact that the Act is not
strictly limited to head taxes, which were the Act's primary
target,
id., at 13, but also encompasses taxes on gross
receipts from the sale of air trans-
376
portation, in no way suggests that the Act should be read to
encompass all airport "user fees."
To be sure, the Act's apparently broad ban on any fees, taxes,
or charges imposed "directly or
indirectly, on persons
traveling in air commerce," etc., superficially supports the
Court's interpretation. Any cost an airline bears is in some sense
an "indirect" charge "on persons traveling in air commerce,"
because the airline ultimately will pass that cost on to consumers
in the form of higher ticket prices. But if § 1513(a) covers all
charges indirectly imposed on air travelers, as the Court
apparently believes, see
ante, at 365, it should logically
encompass all taxes imposed on airlines as well, including property
taxes, net income taxes, franchise taxes, and sales and use taxes
on the sale of goods and services. Yet § 1513(b) instructs that
such taxes are not covered by § 1513(a)-that they are "taxes
other than those enumerated in subsection (a)." (Emphasis
added.) Significantly, § 1513(b) is not phrased as an exemption for
taxes otherwise within § 1513(a)'s prohibition, but rather as a
clarification of the reach of § 1513(a). It makes clear that the
language of § 1513(a) defining the prohibition does not extend by
its own force to the taxes enumerated in § 1513(b). Under the
Court's broad construction of § 1513(a)'s "directly or indirectly"
language, however, the two provisions would appear to be in
conflict.
Recognizing the significance of § 1513(b)'s treatment of taxes,
the Court implicitly acknowledges that § 1513(a) does not cover the
taxes listed in § 1513(b).
Ante, at 366, n. 9. But the Court
can only accomplish this reading by assuming that § 1513(b) treats
the "rental charges, landing fees, and other service charges ...
for the use of airport facilities" listed in that subsection
differently from the enumerated taxes. In this understanding, while
as to taxes § 1513(b) merely clarifies the scope of § 1513(a), as
to fees it serves the altogether different function of providing an
exemption from § 1513(a)'s prohibition. The Court supports this
reading on
377
the ground that § 1513(b) does not explicitly describe the fees
as distinct from ("other than") the fees prohibited in § 1513(a).
That construction requires a rather unlikely reading of § 1513(a),
however, because it means that the same language defining the scope
of the prohibition in that section inexplicably would have one
meaning when applied to fees, and quite a different (and more
limited) meaning when applied to taxes. None of the taxes listed in
§ 1513(b), although borne indirectly by airline passengers, would
constitute a "tax, fee, ... or other charge, [levied] directly or
indirectly, on persons traveling in air commerce," etc. But a user
fee charged to an airline,
because it is borne indirectly by
airline passengers, would constitute such a "tax, fee, ... or other
charge .... " Thus, the prohibition in § 1513(a) would not extend
to, for example, property taxes, because they are not imposed on
one of the bases listed in § 1513(a), but would extend to other
fees or charges, regardless of the basis upon which they are
imposed.
Adherence to the plain language of § 1513(a) avoids these
problems. In my view, when the statute prohibits a tax or charge
"on persons traveling in air commerce," "on the carriage of" such
persons, "on the sale of air transportation," or "on the gross
receipts derived therefrom," it defines the prohibition in terms of
the prohibited
basis of the tax or charge. That is, §
1513(a) prohibits the levy or collection of a tax or fee "on"
certain subjects. A head tax, for example, is a charge "on persons
traveling in air commerce" in that it is imposed on a per passenger
basis. A landing fee, by contrast, is not-rather, it is a charge on
an aircraft's landing at an airport, without regard to the number
of passengers it carries.1
10f course, as the Court notes,
ante, at 366, n. 9, user
fees such as landing fees are not
per se excluded from the
Act. An airport could not, for example, simply replace a head tax,
which is clearly forbidden by the Act, with a "landing fee"
calculated according to the number of passengers on an airplane.
Such a thinly disguised substitute for a head tax no doubt
378
Section 1513(b) confirms that § 1513(a) is concerned with the
basis on which the tax or charge is calculated. Property taxes, net
income taxes, and franchise taxes are not imposed on one of the
bases prohibited in § 1513(a), and as explained above, are not
included in § 1513(a). Because the same language in § 1513(a)
restricts taxes as well as fees and other charges, it seems logical
that the fees referred to in § 1513(b), which also are not
generally calculated on the bases listed in § 1513(a), are
similarly beyond § 1513(a)'s prohibition.
Section 1513(b)'s reference to "reasonable" charges, then, does
not impose a requirement that all airport user fees be
"reasonable." Instead, it simply makes clear that state and local
governments remain free to impose charges other than those
proscribed by § 1513(a). Cf.
Aloha Airlines, 464 U. S., at
12, n. 6 ("Section 1513(a) pre-empts a limited number of state
taxes, ... [and] [§]1513(b) clarifies Congress' view that the
States are still free to impose on airlines and air carriers 'taxes
other than those enumerated in subsection (a)' "). That is not to
say that the term "reasonable" is superfluous. Had the Act made
unqualified reference to landing fees and other user fees, it might
have been read as an indication of congressional intent to
authorize fees or charges that would otherwise be invalid under the
dormant Commerce Clause. See
Maine v.
Taylor,
477 U. S. 131,
139 (1986). An unqualified reference might have also been
understood to permit landing fees and other fees calculated on one
of the bases prohibited by § 1513(a). See n. 1,
supra. By
including the term "reasonable," Congress ensured that the Act
would not
is a charge on the carriage of passengers traveling in air
commerce within the meaning of § 1513(a). A landing fee is not such
a prohibited charge where it is based merely on the weight of an
airplane, as here. See App. 194 (Plaintiffs' Trial Exh. 6: Fees for
the Use of Public Aircraft Facilities and Rental for Passenger
Terminal Premises, Kent County International Airport, Three Years
Beginning Jan. 1, 1987 (Dec. 31, 1986)). Similarly, neither a
rental fee based on square footage, see
ibid., nor a
carrying charge based on the depreciation of an asset, see App.
68-70 (trial testimony of Richard K. Dompke), is such a prohibited
charge.
379
be understood to displace the dormant Commerce Clause or to
exempt user fees on aircraft operators
per se from §
1513(a). In short, § 1513(b) merely clarifies that fees, taxes, and
other charges not encompassed within § 1513(a) may be imposed if
consistent with our dormant Commerce Clause jurisprudence.2
II
The considerable difficulty the Court has in finding content for
the term "reasonable" should signal that Congress did not intend
the Act to impose a comprehensive new regulation on airport fees.
As the Court admits, the Act itself sets no standards for
reasonableness.
Ante, at 366. Finding no other source for a
definition, the Court uses
Evansville as its test of
reasonableness, apparently for want of anything better. See
ante, at 367-368. The Court seems to recognize that this is
not a perfect fit (but "will suffice for the purpose at hand,"
ante, at 368), and with good reason. Reasonableness was only
one of several factors considered in
Evansville;
nondiscrimination against interstate commerce is a separate concern
and is of at least equal importance. See 405 U. S., at 716-717.
Moreover, as the Court acknowledges, Congress enacted the Act
precisely because it found the result in
Evansville
"unsatisfactory."
Ante, at 368.
Nevertheless, the Court reads the
Evansville standard
into the statute for no reason other than that the parties invite
us to do so and that this Court (after enactment of the AHTA)
occasionally has applied
Evansville to test reasonableness
in other contexts.
Ante, at 367-368. That the parties agree
on a standard, however, does not mean that it is the correct one.
Moreover, it seems somewhat odd to import into the Act the very
standard that created the problem Congress ostensibly intended the
Act to "correct." Indeed, read as the Court construes it, the Act
would fail to prohibit
2 Other statutory restrictions might also apply to the fees at
issue here, see,
e. g., 49 U. S. C. App. § 2210, but
their applicability is not before us.
380
precisely the sort of fees § 1513(a) most clearly forbids. A
head tax itself was held to be a "reasonable" user fee in
Evansville (assuming, as the Court does, that
Evansville applied a "reasonableness" standard). Under the
Court's interpretation of the AHTA, there is nothing to prevent an
airport from imposing a modest per passenger fee on airlines as a
service charge for use of airport facilities.3 Such a fee would
pass muster under
Evansville, and therefore would be "saved"
by § 1513(b) as a "reasonable" fee, even though it is clearly a
charge "on the carriage of persons traveling in air commerce." §
1513(a).4 It is doubtful that Congress intended the AHTA to
prohibit "unreasonable" landing fees, whatever they might be, while
permitting
"Evansvillereasonable" per capita user fees on
aircraft operators. If, as the Court implies, Congress disapproved
of the result but not the analysis in
Evansville, it seems
far more likely that it would have left the Commerce Clause
analysis undisturbed while prohibiting head taxes and similar fees.
In my view, that is precisely what § 1513 does.
Having applied a construction of "reasonable" that it admits is
not compelled by the Act, the Court invites the Secretary of
Transportation to devise a different, presumably bet-
3 Presumably, under the Court's analysis, § 1513(b) would not
save head taxes exacted directly from passengers because it refers
only to user fees collected "from aircraft operators."
4 It is no answer to say, as the Court does,
ante, at
368, n. 13, that "head charges" are prohibited by § 1513(a). In the
Court's view, "user fees are [also] covered by § 1513(a)."
Ante, at 366, n. 9. As the Court construes the Act, charges
covered by § 1513(a) are permitted only if they are "saved" by §
1513(b).
Ibid. It is not clear why § 1513(b) would save
reasonable "fee[s]" and "other charge[s]" covered by § 1513(a) but
not reasonable "head charge[s]" covered by § 1513(a). Head charges
certainly may constitute "reasonable ... service charges from
aircraft operators for the use of airport facilities," § 1513(b),
if
Evansville is the standard of reasonableness. See
Evansville- Vanderburgh Airport Authority Dist. v.
Delta
Airlines, Inc., 405 U. S. 707, 710, 714
(1972) (upholding a $1 per passenger "service charge" collected
from air carriers for "use of runways and other airport
facilities").
381
ter, interpretation of the term, to which the Court will defer
if it is a permissible construction of the Act.5
Ante, at
368, n. 14. Given that the Act sets no standards for
"reasonableness,"
ante, at 366, it is difficult to imagine
how the Secretary's interpretation could be an impermissible one.
Indeed, although the Court seems to assume that the standard would
be at least as rigorous as the one it applies here, presumably the
Secretary could, in the exercise of his expertise, devise a more
permissive standard. Under the Court's analysis, there is no reason
to assume that the
Evansville standard is a minimum. If the
Act imposes the comprehensive regulation of the reasonableness of
airport charges that the Court sees, it would certainly constitute
a clear expression of Congress' intention to displace the dormant
Commerce Clause in this area, see
Maine v.
Taylor,
477 U. S., at 139, in which case the Secretary would be free to
regulate either more or less restrictively than would the dormant
Commerce Clause. Cf.
Merrion v.
Jicarilla Apache
Tribe, 455 U. S.
130, 154 (1982). I simply find nothing in the AHTA that gives
the Secretary such unbridled discretion to regulate all airport
user fees.
III
Because the AHTA does not, in my view, apply to the fees in this
case, it does not foreclose petitioners' challenge under the
dormant Commerce Clause.6 The courts below, how-
5 The Secretary of Transportation has not so far promulgated any
regulatory standards for judging reasonableness under the Act.
Although that fact is not directly relevant to our inquiry, it is
surprising, if the Act means what the Court thinks it does, that
the Secretary has not done so in the 20 years since the AHTA's
enactment.
6 Nor, in my view, does the Airport and Airway Improvement Act
of 1982 (AAIA), 49 U. S. C. App. § 2210, foreclose dormant Commerce
Clause analysis here. Although the AAIA places a variety of
conditions on federal funding of airports, some of which relate to
user fees, it imposes no flat prohibitions, and therefore does not
make" 'unmistakably clear'" that it is intended to displace the
dormant Commerce Clause.
Maine v.
Taylor, 477 U. S. 131, 139
(1986). Moreover, this Court in
Evansville held
382
ever, held that the Act, as they interpreted it, precluded that
claim.
955 F.2d
1054, 1063-1064 (CA6 1992); No. G88-243 CA (WD Mich., Jan. 19,
1990), App. to Pet. for Cert. 46a. Because the lower courts should
be given the opportunity to consider the merits of petitioners'
dormant Commerce Clause challenge in the first instance, I would
remand.
I therefore respectfully dissent.
that the AAIA's predecessor, which was substantially similar to
the AAIA, did not preclude dormant Commerce Clause analysis. See
405 U. S., at 721.
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