dissenting.
I adhere to the view that Section 401(n)(2) of the FAA does not create a private right of action for damages arising from an alleged violation of the CAB regulations governing air charter security arrangements. Bratton v. Shiffrin, 585 F.2d 223, 232 (7th Cir. 1978) (Bauer, J., dissenting). I regard the majority’s conclusion to the contrary to be inconsistent with a principled application of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and its progeny, the most recent of which is Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Nor can I agree that Touche Ross is factually or analytically inapposite to the case at bar. In my view, Touche Ross is dispositive of the issue before us and mandates affirmance of the judgment entered by the district court. I therefore respectfully dissent.
The sole inquiry presented by this appeal is whether or not the Congress intended Section 401(n)(2) of the Act to provide a private remedy for a violation of its terms and the CAB regulations promulgated thereunder. The resolution of this question is, quite simply, a matter of statutory construction, and it is axiomatic that the judicial construction of a statute begin with the language itself. As the Supreme Court stated in Touche Ross:
The question of the existence of a statutory cause of action is, of course, one of statutory construction . . SIPC’s argument in favor of implication of a private right of action based on tort principles, therefore, is entirely misplaced. *1233Brief for SIPC 22-23. As we recently have emphasized, “the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. University of Chicago, supra, 441 U.S., at 688, 99 S.Ct., at 1953. Instead, our task is limited solely to determining whether Congress intended to create the private right of action asserted by SIPC and the Trustee. And as with any case involving the interpretation of a statute, our analysis must begin with the language of the statute itself.
442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979) (citations omitted).
In applying this standard of analysis to the statute before us, it is necessary to examine the express language of Section 401(n)(2) of the Act. At the time pertinent to this case, the statute reads as follows:
In order to protect travelers and shippers by aircraft operated by supplemental air carriers, the Board may require any supplemental air carrier to file a performance bond or equivalent security arrangement, in such amount and upon such terms as the Board shall prescribe, to be conditioned upon such supplemental air carrier’s making appropriate compensation to such travelers and shippers, as prescribed by the Board, for failure on the part of such carrier to perform air transportation services in accordance with agreements therefor.
49 U.S.C. § 1371(n)(2). Thus, by its terms, Section 401(n)(2) merely provides that the CAB may require supplemental air carriers to file a performance bond in such amount and upon such terms as the Board may prescribe. It does not, by its terms, purport to create a private right of action in favor of anyone. The majority concedes, as they must, that on its face Section 401(n)(2) fails to provide an express private remedy for a violation of its terms, and is therefore constrained to finding an implied private right of action in favor of the plaintiffs.
It is true that in certain circumstances a private right of action may be implied in a statute not expressly providing one. But as the Supreme Court noted in Touche Ross:
[I]n those cases finding such implied private remedies, the statute in question at least prohibited certain conduct or created federal rights in favor of private parties. E. g., Cannon v. University of Chicago, supra (20 U.S.C. § 1681); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (42 U.S.C. § 1981); Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971) (15 U.S.C. § 78-j(b)); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) (42 U.S.C. § 1982); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (42 U.S.C. § 1973c); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (42 U.S.C. § 1982); J. I. Case Co. v. Bo-rak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) (15 U.S.C. § 78n(a)).
442 U.S. at 569, 99 S.Ct. at 2485. By contrast, Section 401(n)(2) neither confers rights on private parties nor proscribes any conduct as unlawful. For these reasons, the majority’s reliance on Cannon and Bo-rak to sustain its finding of an implied private remedy under Section 401(n)(2) is misplaced.
In this case, as in Touche Ross vis-a-vis § 17(a) of the Securities Exchange Act of 1934, the intent of Section 401(n)(2) of the FAA is evident from its face. Section 401(n)(2) simply requires supplemental air carriers to post a performance bond or other equivalent security arrangement in order to protect charter air travelers against the inability to obtain compensation when tour plans collapse. This section parallels the other sections of the Economic Regulations of the Act, namely to provide a measure of protection in the event of liability arising from a failure to perform the underlying contract between the charter air carrier and traveler. See, e. g., 49 U.S.C. §§ 1371(a) through (n). But the language of Section 401(n)(2) does not purport to confer a private damage remedy in the event that the *1234objective of this economic regulation is not met and the carrier becomes insolvent before other remedial action by the CAB may be taken. By its terms, Section 401(n)(2) seeks to provide protection by a security agreement independent of CAB remedial measures and, in the event of insolvency, to provide recompense to charter air travelers in a state court action on the performance bond contract. In other words, there is no basis in the language of Section 401(n)(2) for inferring that a federal civil cause of action for damages exists in favor of anyone. Touche Ross, supra at 571, 99 S.Ct. at 2486.
The maj'ority relies on the legislative history of Section 401(n)(2) to substantiate its conclusion that the Congress intended an implied private remedy, but the legislative history of the Act is entirely silent on whether a private right of action for damages should or should not be available under § 401(n)(2) in the circumstances of this case. See, e. g., Senate Report No. 688, House Report No. 1177, Conference Report No. 1950, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Admin.News, pp. 1844, 1844-1872. The majority concedes that “the legislative history is scarce,” ante at 1231, but reasons that because the statute neither explicitly creates nor denies a private remedy, it is free to infer one. Accordingly, the maj'ority concludes that “[f]rom the congressional silence, however, we have read a positive implication in favor of a private cause of action.” Id. It seems to me that this conclusion ought to have been reached by circumspection rather than conjecture. The Supreme Court responded to the same contention in Touche Ross when it stated:
As the Court of Appeals recognized, the legislative history of the 1934 Act is entirely silent on the question whether a private right of action for damages should or should not be available under § 17(a) in the circumstances of this case. App. 198. SIPC and the Trustee nevertheless argue that because Congress did not express an intent to deny a private cause of action under § 17(a), this Court should infer one. But implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 64, 98 S.Ct. 1670, 1680, 56 L.Ed.2d 106 (1978). And where, as here, the plain language of the provision weighs against implication of a private remedy, the fact that there is no suggestion whatsoever in the legislative history that § 17(a) may give rise to suits for damages reinforces our decision not to find such a right of action implicit within the section.
99 S.Ct. at 2486-2487, 442 U.S. at 571 (citations omitted).
The paucity of legislative history on this question compels the conclusion that no private remedy should be implied in this case either, and it is simply a non sequitur to “read” a contrary conclusion from this deafening legislative silence. The sole support cited by the majority for its conclusions are the comments of Mr. Halaby. But his testimony hardly qualifies as an expression of legislative intent to create such a remedy. Mr. Halaby testified:
By requiring a supplemental air carrier to furnish a performance bond, a desirable specific review of the carrier’s financial responsibility will have to be made— and incidentally, outside of the government — and when the bond is issued, some recourse will have been supplied to those who are otherwise helpless.
Ante at 1231, n.8. Even assuming that this testimony reflects the Congressional intent underlying the enactment of Section 401(n)(2), it does not follow from a plain reading of the quoted passage that in enacting Section 401(n)(2) the Congress evinced an intent to create a private remedy for damages. On the contrary, Mr. Halaby’s comments appear to reflect that the relief sought by this section would be actionable in state court on a breach contract claim, rather than a federal statutory cause of action impliedly cognizable under Section 401(n)(2).
The majority attempts to distinguish the applicability of Touche Ross to this case on' *1235the basis that the Supreme Court found further justification for not implying a private right of action under § 17(a) of the Securities Exchange Act of 1934 because other sections flanking § 17(a) provided private rights of action. Ante at 1231-1232. But the Congress also provided explicit remedies for violations of the FAA which, in my view, compel the conclusion that these explicit remedies are the exclusive means of enforcement for a violation of the duties and obligations imposed by the Act.1 See, e. g., 49 U.S.C. §§ 1471, 1472, 1482, 1487. The mere fact that the Congress did not enact the remedial provisions of the FAA contemporaneously with Section 401(n)(2) nor refer to these remedial provisions when delimiting the scope of the right created in that section does not extinguish the vitality of Touche Ross in the context of this appeal. As stated in Touche Ross:
Further justification for our decision not to imply the private remedy that SIPC and the Trustee seek to establish may be found in the statutory scheme of which § 17(a) is a part. First, § 17(a) is flanked by provisions of the 1934 Act that explicitly grant private cause of action. § 16(b), 15 U.S.C. § 78p(b); § 18(a), 15 U.S.C. § 78r(a). Section 9(e) of the 1934 Act also expressly provides a private right of action. 15 U.S.C. § 78i(e). See also '§ 20, 15 U.S.C. § 78t. Obviously, then, when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734, 95 S.Ct. 1917, 1919, 44 L.Ed.2d 539 (1975); see Amtrak, [National Rail*1236road Passenger Corp. v. National Assoc. of Railroad Passengers] 414 U.S. [453] at 458, 94 S.Ct. [690] at 693, 38 L.Ed.2d 646; T. I. M. E., Inc. v. United States, supra [359], at 471, 79 S.Ct. [904] at 908.
422 U.S. at 571-72, 99 S.Ct. at 2487.
Similarly, in this case the Congress provided express remedies for a violation of the Act. E. g., 49 U.S.C. §§ 1471, 1472, 1482, 1487. If the Congress wished to provide a private remedy for damages under Section 401(n)(2), it is well aware of how it may effectuate that intent. Moreover, the import of the fact that in Touche Ross § 17(a) was flanked by other remedial provisions is merely that it provided a “further justification” not to imply a private remedy under § 17(a) of the Securities Exchange Act of 1934.
In this case, as in Touche Ross, the plaintiffs contend that an analysis of the standards set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), requires a finding that Section 401(n)(2) creates an implied private right of action for damages. On remand, the majority today reaffirms its holding of an implied private cause of action as consistent with Cort. My dissent to the original decision of the Court adequately addresses what I regard to be the salient defects in the majority’s analysis under Cort v. Ash, supra. Bratton v. Shif-frin, 585 F.2d 223, 232 (7th Cir. 1978) (Bauer, J., dissenting). It is accordingly unnecessary to further explicate my views on this point, with the exception of one final comment. In Touche Ross, the Supreme Court found it unnecessary to undertake the analysis outlined in Cort v. Ash, supra, with respect to whether a private right of action arises under § 17(a) of the 1934 Act. In that connection, the Supreme Court stated:
We need not reach the merits of the arguments concerning the “necessity” of implying a private remedy and the proper forum for enforcement of the rights asserted by SIPC and the Trustee, for we believe such inquiries have little relevance to the decision of this case. It is true that in Cort v. Ash, supra, the Court set forth four factors that it considered “relevant” in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose, see 422 U.S., at 78, 95 S.Ct., at 2088 — are ones traditionally relied upon in determining legislative intent. Here, the statute by its terms grants no private rights to any identifiable class and proscribes no conduct as unlawful. And the parties as well as the Court of Appeals agree that the legislative history of the 1934 Act simply does not speak to the issue of private remedies under § 17(a). At least in such a case as this, the inquiry ends there: The question whether Congress, either expressly or by implication, intended to create a private right of action, has béen definitely answered in the negative.
442 U.S. at 575-76, 99 S.Ct. at 2489.
In this case, the statute by its terms grants no private rights in favor of any party, proscribes no conduct as unlawful, and the legislative history is similarly silent on the issue of the availability of private remedies under Section 401(n)(2) of the FAA. In my view, for these same reasons found dispositive in Touche Ross, our inquiry should also end there, and “[i]f there is to be a federal damage remedy under these circumstances, Congress must provide it.” 442 U.S. at 579, 99 S.Ct. at 2490.
. Indeed, the legislative history that is available regarding Section 401(n)(2) further supports the conclusion that these express remedies are the exclusive means of enforcement under the Act. As stated in the Senate Report to S. 1969, which was ultimately enacted by the Congress:
THE ENFORCEMENT PROBLEM
One cause for apprehension as to the possible adverse impact on the scheduled industry of the supplemental carriers, which was reflected in the committee’s hearings, was the difficulties which have been encountered by the Board in effectively enforcing the limitations on supplemental operations which it has imposed in past orders. There have been rather notorious examples of supplemental carriers entering into illegal combinations resulting in a de facto pooling of their operating rights to provide scheduled service of far greater frequency and regularity than had been authorized by the Board. Efforts of the Board to end such practices by cease-and-desist orders or revocations of authority have been frustrated by protracted appeals to the court during which the Board’s orders have been stayed. This has permitted the continuation of palpably illegal but highly profitable operations by carriers using every conceivable means to delay the inevitable legal sanction.
Such operations have never been conducted by more than a handful of supplemental carriers. The vast number of such carriers have probably suffered more from such activities than have the scheduled carriers, for they have found it impossible to compete on a legal basis, offering a severely limited number of trips, with carriers who have illegally combined to provide daily scheduled service. Unfortunately, they have probably suffered even more from the less tangible damage done by such operations to the reputation of the supplemental industry. It is implicit in the committee’s action on this bill that it regards the vast majority of supplemental air carriers as responsible, safe, and useful operators who have made and will continue to make a major contribution to the development of air transportation, and particularly to national defense. The committee is determined that the supplemental industry, as well as the scheduled industry, be more effectively protected from the depredations of illegal operators.
In recommending the means to accomplish this end the committee has accepted the recommendations of the Civil Aeronautics Board, made continually over several years, that the civil penalties now provided in the Federal Aviation Act for violations of safety and other provisions of the act be made applicable to violation of the economic provisions under title IV and of certificates issued thereunder. Section 901 of the act now provides a civil penalty not to exceed $1,000 for each violation and provides that in the case of a continuing violation each day shall constitute a separate offense subject to the $1,000 penalty. The committee bill would amend this section to make it applicable to the provisions of title IV and certificates issued thereunder, and would thus provide the Board with the weapon it has lacked — the ability to take the profit out of illegal operations performed over a long period of time under a judicial stay.
Senate Report No. 688, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Admin. News, pp. 1844, 1855-1856 (emphasis supplied).