United States Court of Appeals
For the First Circuit
No. 05-2004
JALBERT LEASING, INC.,
d/b/a C&J TRAILWAYS, ET AL.,
Plaintiffs, Appellants,
v.
MASSACHUSETTS PORT AUTHORITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Marianne B. Bowler, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jeremy Kahn with whom Kahn and Kahn, Wesley S. Chused and
Looney & Grossman LLP were on brief for appellants.
Shelly L. Taylor with whom David S. Mackey, Massachusetts Port
Authority, Roscoe Trimmier, Jr., Richard J. Lettieri Sarah L.
Levine and Ropes & Gray were on brief for appellee.
Thomas F. Reilly, Attorney General, and Thomas A. Barnico,
Assistant Attorney General, Government Bureau, on brief for
Commonwealth of Massachusetts, Amicus Curiae.
April 12, 2006
BOUDIN, Chief Judge. The Massachusetts Port Authority
("Massport"), an arm of the Commonwealth charged with (among other
things) operating Boston's Logan Airport ("Logan"), imposes on bus
and other surface transport entities a per-trip fee for stops at
the airport. Four bus companies brought suit against Massport in
federal district court, seeking a declaration that the fees are
prohibited under federal law and an injunction against them. The
district court found in favor of Massport, and the bus companies
now appeal.
The facts are undisputed. The plaintiff bus companies
transport passengers between Logan and various locations, including
out-of-state locations (e.g. Concord, N.H.). To pick up or
discharge passengers at Logan, each company had to sign a standard
"Commercial Ground Transportation Service Operating Agreement" with
Massport. The agreement obligates the company to pay a fee based
on the number of trips to Logan, regardless of the number of
passengers and even if the bus is empty.
Massport states that the fee "is imposed in exchange for
providing motor carriers with access to and use of Logan and serves
to partially defray administrative, maintenance, construction and
capital costs associated with the Logan facilities used by these
carriers." That it costs money to build and operate Logan is not
in dispute. Rather, the bus companies say that as to them, the
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fees are prohibited by 49 U.S.C. § 14505 (2000) ("the bus
statute"), which reads, in its entirety, as follows:
A State or political subdivision thereof may
not collect or levy a tax, fee, head charge,
or other charge on--
(1) a passenger traveling in interstate
commerce by motor carrier;
(2) the transportation of a passenger
traveling in interstate commerce by motor
carrier;
(3) the sale of passenger transportation in
interstate commerce by motor carrier; or
(4) the gross receipts derived from such
transportation.
Following Massport's announcement that it planned to
triple the fee to $4.50 per trip in April 2004--it is now
apparently several dollars higher--the bus companies brought the
present action in the district court. The parties consented to
proceed before a magistrate judge, 28 U.S.C. § 636(c) (2000), who,
on cross-motions for summary judgment, rejected the statutory
challenge and granted summary judgment for Massport. On this
appeal, our review of the order granting summary judgment is de
novo. Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 611
(1st Cir. 2000).
The statute, where it applies, forbids state-imposed
fees; Massport is a state entity, and the per-trip charges are
fees. What is at issue is whether the fees fall into any of the
four enumerated categories. None of the four clearly embraces the
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per-trip charge: the charge is not directly on "a passenger"
(clause 1); formally, it is not on "the transportation of a
passenger" or "the sale of passenger transportation" (clauses 2 and
3), as it applies to any bus trip to Logan, full or empty and
passenger or freight; nor is it measured by or contingent upon
"gross receipts" (clause 4).
But all of the clauses could be stretched to apply to the
charge, and this is most apparent as to clauses 2 and 3, on which
the plaintiffs principally rely. Although the charge is not
formally levied on "the transportation of a passenger traveling in
interstate commerce" or "the sale of [interstate] passenger
transportation," the buses in question principally transport
passengers and a number appear to be passengers traveling in
interstate commerce. Thus, such transportation is impacted by the
charge even though it is not the sole focus of the charge.
In short, the language of the statute is not so clear as
to exclude other sources of guidance as to its meaning. See
Strickland v. Comm'r, Me. Dep't of Human Servs., 48 F.3d 12, 19
(1st Cir. 1995). Ordinarily, the main sources of enlightenment are
legislative history, judicial precedent, and the legislature's
underlying policy. In this case, however, there is not very much
enlightenment to be wrested from these sources.
The history of the statute begins not with buses, but
with airlines and a 1972 Supreme Court decision upholding a locally
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imposed "head" (i.e., per person) tax on airline passengers, vast
numbers of whom travel interstate. Evansville-Vanderburgh Airport
Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707, 709 (1972). The
Supreme Court sustained this tax against a dormant Commerce Clause
challenge, saying that it did not discriminate against or unduly
burden interstate commerce. Id. at 711-14, 717-18.
Congress responded with the Anti-Head Tax Act ("AHTA"),
Pub. L. No. 93-44, 87 Stat. 88 (1973) (codified as amended at 49
U.S.C. app. § 1513 (1994)), prohibiting locally enacted head taxes
and other fees on four categories of activity--the same four
categories quoted above and later adopted in the bus statute.
Unlike the bus statute, the airline statute as enacted prohibited
such taxes "directly or indirectly," and, also unlike the bus
statute, carved out some exceptions that permitted specific taxes,
including landing fees for aircraft.1 See 49 U.S.C. app. § 1513
(1994); Northwest Airlines, Inc. v. County of Kent, Mich., 510 U.S.
355, 365-66 (1994).
Two decades later, history repeated itself and it was the
bus companies' turn to seek protection from the Supreme Court. In
Oklahoma Tax Commission v. Jefferson Lines, Inc., 514 U.S. 175
(1995), the Supreme Court upheld Oklahoma's sales tax on purchases
1
The original statute was eventually superceded by 49 U.S.C.
§ 40116(b), which retained essentially the same language as the
original statute, save that the "directly or indirectly" language
was deleted "as surplus." Historical and Statutory Notes, 49
U.S.C. § 40116(b) (2000).
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of interstate bus tickets, ruling that the tax did not violate the
dormant Commerce Clause. Id. at 200. Again, Congress responded,
incorporating the four-prohibited-categories language of the AHTA
into a new bus statute, whose text has been quoted above.
The House conference report summed up the object of the
statute thusly:
This section prohibits a State or political
subdivision of a State from levying a tax on
bus tickets for interstate travel. This
reverses a recent Supreme Court decision
permitting States to do so and conforms
taxation of bus tickets to that of airline
tickets.
H.R. Conf. Rep. No. 104-422, at 220 (1995). The House and Senate
reports contain similar language or parts of it. H.R. Rep. No.
104-311, at 120 (1995); S. Rep. No. 104-176, at 48 (1995). No
other legislative history (e.g., any hearings) has been cited to
us, and, as we will explain, the hearings on the AHTA are not very
helpful because of the different statutory tax and funding context
in airline regulation.
The Conference Report just quoted is of limited help as
a gloss on the statutory language; it repeats the language of one
of the four categories and invokes in general terms the treatment
of airline tickets. Nor does it explain what was troubling to
Congress: the Oklahoma statute did not directly distinguish between
interstate and intrastate travel--it applied to all tickets,
Jefferson Lines, 514 U.S. at 178--and there was no showing that
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Oklahoma had placed an undue burden on interstate commerce in the
sense of seriously discouraging interstate travel.
The Oklahoma statute was arguably vulnerable because it
taxed the passenger (and required the bus company to collect the
tax) on the full price of the ticket for an interstate trip
originating in Oklahoma. In the context of gross receipt taxes on
carriers, the Supreme Court had earlier insisted on some kind of
apportionment. Central Greyhound Lines, Inc. v. Mealey, 334 U.S.
653, 662-63 (1948). However, Congress, in overturning Jefferson
Lines, did not require apportionment, but banned--without further
explanation--all taxes falling in any one of the four specified
categories.2 This, then, is the inconclusive background.
In the present appeal, the bus companies make several
different arguments. The first--a leitmotif of the entire brief--
is that the fee charged on their pick-up trips to Logan is patently
a "tax, fee, or other charge" levied "indirectly" on "passengers
traveling in interstate commerce" and levied "directly" on "the
transportation of passengers traveling in interstate commerce."
But the fee is not charged "directly" on the interstate
2
Both the circuit court, In re Jefferson Lines, Inc., 15 F.3d
90, 92-93 (8th Cir. 1994), and two justices dissenting in the
Supreme Court, Jefferson Lines, 514 U.S. at 201 (Breyer, J., joined
by O'Connor, J.), deemed Central Greyhound controlling. Two other
justices joined the majority's result based on a view of dormant
Commerce Clause doctrine quite different from either the majority
or dissenting opinions. Id. at 200-01 (Scalia, J., joined by
Thomas, J.).
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transportation of passengers; it applies on a per-trip basis to
buses or other vehicles (e.g., delivery vehicles), loaded or empty.
As for "indirectly" comprising a tax on passengers, some
or all of the fee may well be passed on to passengers in higher
ticket prices--and so the tax may mimic the effect of a charge that
would be forbidden under clauses (1) and (3). But that is true of
many taxes--say, the state tax on gasoline--and could be said of
any state charge or fee that affects buses, including parking
tickets.
The problem with the argument is not that the bus statute
fails to use the term "indirect." In fact, the AHTA originally
prohibited charges that "directly or indirectly" fell within the
enumerated categories, and the language was later deleted as
superfluous. See note 1, above. We would therefore be free to
read the bus statute as broadly as the original AHTA. The real
issue is whether and when the statute should be read to embrace
fees and charges that are not within its most straightforward
reading but may come reasonably close.
We cannot supply a single test for making this kind of
judgment. Probably the (oft-hidden) variables include, among
others, the closeness of the language fit to the new situation; our
perception of how closely the effects of the fee in dispute mimic
the effects of a clearly forbidden fee; how far the evil targeted
by Congress is present and how far it is mitigated by other
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circumstances; and how practical or dangerous would be the
extension of the statute beyond the most straightforward reading.
It is in matters of this kind that deciding cases
resembles an art far more than a science. If there is any formula
at all, it is vague and incomplete, and the information required to
execute it is thin. But a spurious certainty is rarely persuasive,
and resort to it in the case at hand would compromise our ability
to decide properly the cases that follow. And, as here, an issue
may be close without really being in doubt.
In this instance, the fee in question does not cleanly
fit the categories' language, but it could probably be squeezed
into one or two without violent distortion. The effect of the fee
is probably pretty close to clearly forbidden fees, but here there
is a catch: almost any tax or fee imposed on buses that carry
passengers interstate would have the same basic effect as toll
charges on Massachusetts highways--tolls that for a trip from Logan
to New York probably match or exceed the Logan fees.
The most difficult aspect is understanding the evil that
prompted the statute. The airport statute fit fairly neatly into
a pattern of related taxes and fees and contained targeted
exceptions;3 by contrast, the bus statute, which does not fit such
3
For airlines, Congress, prior to Evansville, had in place a
complicated structure of federal airport subsidies and counterpart
federal taxes both on airlines and passengers. See Aloha Airlines,
Inc. v. Dir. of Taxation, 464 U.S. 7, 8-10 (1983). The AHTA
arguably dovetailed with this existing structure by prohibiting
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a pattern and contains no exceptions, appears most likely to have
been a reflexive response to a specific perceived evil--the failure
to apportion a tax charged on interstate bus tickets--which is not
present in our own case.
The bus statute is, admittedly, more broadly written than
the particular evil, and we would readily apply it according to its
terms to any case that came squarely within it. But this case does
not come squarely within the most straightforward reading of those
terms. Nor need we ignore the fact that the dormant Commerce
Clause doctrine is available as a backstop to remedy real abuses by
states against interstate commerce--either discrimination or unduly
burdening such commerce.
Finally, the present fee, although not cleanly within the
statute, is pretty close; but alongside it are a whole series of
charges and taxes even further away. The bus companies have
offered no easy stopping point once one starts down their road of
judging by effects, and none occurs to us. This is not a
conclusive objection, see Schauer, Slippery Slopes, 99 Harv. L.
Rev. 361, 381-83 (1985), but neither is it irrelevant when added to
others already mentioned.
By contrast, if Congress does not think that charges like
Massport's are acceptable, it can easily fine-tune its statute to
state duplication (thereby avoiding double taxation) while
explicitly carving out and safeguarding certain other state taxes.
See id. at 9-10.
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provide greater protection to bus companies (and greater guidance
to courts). Often, invoking the possibility of Congress' response
is window dressing, but carriers of all kinds have been reasonably
effective in inviting attention to abuses, and Congress has not
been slow to regulate. There is thus much to be said for taking
Congress strictly at its word, as we do in this case.
The bus companies cite Aloha Airlines, Inc. v. Director
of Taxation, 464 U.S. 7 (1983), as requiring respect for the "plain
meaning" of statutes like ours. There, the Supreme Court held that
the AHTA applied with full force to bar Hawaii's tax on local
airlines' gross income. Id. at 14-15. The Court said that both
the plain language and legislative history of the AHTA encompassed
gross receipt taxes and that Hawaii could not escape the ban by
saying, as it did in its tax statute, that the gross income tax was
"a means of taxing . . . personal property." Id. at 10, 12-14.4
That case was an easy "plain language" case because the
state expressly "levied and assessed upon each airline a tax of
four per cent of its gross income each year from the airline
business." 464 U.S. at 10 (quoting the state statute). It was
thus in substance a tax on gross income, even if the state
purported to employ that tax as a substitute for levying a tax on
4
Property taxes were specifically exempted from the AHTA ban,
see Aloha Airlines, 464 U.S. at 10, but property taxes are normally
levied on the value of property, not on the income derived from it.
Black's Law Dictionary 1498 (8th ed. 2004).
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property. A tax on bus visits to Logan is not formally a tax on
passengers, passenger transportation, or the sale of tickets, even
though it may affect the price at which tickets are sold.
There is a perhaps better argument based on Supreme Court
dictum in the Kent case, where, prior to the enactment of the bus
statute, the Court rejected an attack by airlines on user fees
imposed by a local airport. 510 U.S. at 358. This result was easy
enough--the statute expressly carved out a safe harbor for
"reasonable rental charges, landing fees, and other service
charges" for airport facilities, 49 U.S.C. app. § 1513(b) (1994)--
and the fight was primarily about the vehicle for challenge and the
reasonableness of the fees. Kent, 510 U.S. at 364-73.
Yet in introducing the latter subject, the Supreme Court,
in a brief passage, stated that the user fees, had they not been
"saved" by the subsequent carve-out, would have fallen within the
categories of fees prohibited by the statute. 510 U.S. at 365.
This statement, unnecessary to the result, arguably overread the
cited portion of Aloha Airlines, which said only that the AHTA was
not limited to direct head taxes. 464 U.S. at 12-13. In any
event, the notion that a statute can be applied beyond its
strictest terms would not itself give an answer to our own case,
and the Kent dictum is not relied on by the bus companies in this
court.
Somewhat further afield, the bus companies also say
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(quoting this court) that Congress has maintained a "significant--
and undisputed--presence" in interstate transportation, United
Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 336 (1st Cir.
2003), and they point to the 1982 federal statute that deregulated
bus transportation, Bus Regulatory Reform Act of 1982, Pub. L. No.
97-261, 96 Stat. 1102 (codified in scattered provisions of 49
U.S.C.), and follow-up decisions that have limited state licensing
that limits competition on intrastate routes. E.g., Greyhound
Lines, Inc. v. City of New Orleans, 29 F. Supp. 2d 339 (E.D. La.
1998); Alex's Transp., Inc. v. Colo. Pub. Utils. Comm'n, 88 F.
Supp. 2d 1147 (D. Colo. 2000).
But this is an atmospheric argument, not analysis. It
seeks to imply, unpersuasively, that because Congress regulates
aspects of surface transportation, the present bus statute should
be extended beyond its terms. It also ignores the significant
state burdens--such as income, property, and fuel taxes--that are
lawfully laid upon bus services, including the bus companies
involved in this case. This is an area filled with compromises
rather than unqualified general principles.
Conversely, Massport, backed by an amicus brief from the
Commonwealth, says that a victory for the bus companies could
imperil other taxes. The bus companies respond by calling this a
lawyer's typical parade of horribles (without explaining just where
a defensible line should be drawn). While the difficulty of
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finding a stopping point is not irrelevant, there is also a lack of
any very good reason to start down the road. Lacking such a
reason, the most straightforward reading of the statute--we do not
say "plain"--is a good default position.
So far we have said nothing about whether the fee, if it
otherwise came within one of the four categories, would also fall
within the "interstate commerce" rubric that qualifies each
category. The reason is that both parties assume that the
qualification is met; neither party has said anything about the
non-Logan origins or destinations of the passengers (or percentages
of passengers), or whether the party thinks it matters that most of
the flights out of Logan are probably to other states.
Interesting problems are buried in the parties' joint
assumption, but it does not affect the outcome of this case, and we
are content to leave such problems for another day. The point is
worth mentioning largely to make clear that we are not, without
more information and a focused argument, endorsing any assumption
about the meaning of this "interstate commerce" language.
Affirmed.
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