Braniff Airways, Incorporated v. CAB, 20160.

• Citation: 379 F.2d 453,126 US App. DC 399
• Decision Date: 12 April 1967
• Docket Number: No. 20160.,20160.
• Parties: BRANIFF AIRWAYS, INCORPORATED, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Eastern Air Lines, Inc., Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

126 US App. DC 399, 379 F.2d 453 (1967)

BRANIFF AIRWAYS, INCORPORATED, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Eastern Air Lines, Inc., Intervenor.

No. 20160.

United States Court of Appeals District of Columbia Circuit.

Argued December 5, 1966.

Decided April 12, 1967.

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Mr. B. Howell Hill, Washington, D. C., with whom Mr. Alexander E. Bennett, Washington, D. C., was on the brief, for petitioner. Messrs. Paul Porter and Daniel A. Rezneck, Washington, D. C., also entered appearances for petitioner.

Mr. Warren L. Sharfman, Associate Gen. Counsel, Litigation and Legislation, C. A. B., with whom Asst. Atty. Gen. Donald F. Turner, Messrs. Joseph B. Goldman, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Burton S. Kolko, Atty., C. A. B., and Howard E. Shapiro, Atty., Dept. of Justice, were on the brief, for respondent.

Mr. Harold L. Russell, Atlanta, Ga., with whom Messrs. E. Smythe Gambrell, Atlanta, Ga., and George C. Neal, Washington, D. C., were on the brief, for intervenor.

Before DANAHER, McGOWAN and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

Nine years ago the Civil Aeronautics Board, respondent here, began extensive proceedings to determine new and improved air routes across the southern tier of states and to select the air carriers to serve these routes. Several carriers proposed regional service between principal cities in Texas and points in Florida. The Examiner recommended that this route be assigned to petitioner, Braniff Airways. The Board, after eliminating from ultimate consideration all carriers but Braniff and Eastern Air Lines, intervenor here, designated Eastern to operate the Dallas/Fort Worth to Miami run. In 1962, on petition to review, this court held that the Board had not made findings adequate to permit judicial review, and remanded the case for further proceedings, permitting the Board if it deemed it desirable to reopen the orders. To avoid the disruption of service already instituted we authorized the Board to permit existing service and route arrangements to remain in effect pending further proceedings. Braniff Airways, Inc. v. CAB, 113 U.S.App.D.C. 132, 306 F.2d 739 (1962). Eastern has continued to service this route.

The Board reopened the proceedings and set the applications for a comparative evidentiary hearing limited to the single question of whether Braniff or Eastern should get the nod, with the determination to be made solely on the basis of the new record. Again, the Examiner's decision favored Braniff, and again the Board awarded the route to Eastern, Order E-22252, June 1, 1965, Reopened Southern Transcontinental Service Case, 2 CCH Av.L.REP. ¶ 21563 (1965). Only three members of the Board, Chairman Boyd and Members Minetti and Gillilland, participated in the decision, and they were in agreement. Vice-Chairman Robert Murphy and Member Adams did not take part in the decision.

Braniff moved for reconsideration on a number of grounds, challenging both the substance of the award and the procedures used in adopting and issuing it. In the interim, Chairman Boyd had left the Board and Chairman Charles Murphy, newly appointed to the Board, succeeded him. Members Minetti and Gillilland, who had voted for the decision in Eastern's favor, now voted to deny reconsideration. Chairman Charles Murphy and Vice-Chairman Robert Murphy, who had not previously participated, voted to grant reconsideration and award the route to Braniff. Member Adams did not participate. The participating members being equally divided, an order was entered denying the petition for reconsideration, Order E-23330, March 7, 1966. Braniff petitioned this court to review the orders. Eastern intervened to defend its certification.

A. The Board's Motion to Remand Without Consideration.

On February 10, 1967, while the case was before this court upon briefs and arguments, the Board determined to investigate the need for new authorizations for southern transcontinental service, including the route between Miami and California via Dallas/Fort Worth. The Board instructed its staff to petition this court to vacate, without disposition of the merits, Orders E-22252 and E-23330, and to remand for consideration by the Board in relation to the new investigation, so that the Board will have maximum flexibility in determining a new route pattern in the interest of public convenience and necessity. Vice-Chairman Murphy did not vote, and Member Adams did not participate as to the request for remand.

Eastern resists the motion to vacate and remand duly filed by counsel for the Board. It states that under the peculiar provisions of the governing statute,¹ the certificate was effective from the date specified and may not be modified or revoked, except after notice and hearing. Invoking Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961), Eastern says that, while a certificate may be vacated by judicial determination of CAB errors, Eastern's right to "security of route" protects it against summary cancellation by the Board.

The Board does not suggest that this court is without jurisdiction to consider the appeal, but rather that the public interest would be promoted by remand to the Board to consider the proceeding in the light of existing circumstances. For reasons discussed below, we had already decided prior to the Board's filing of its petition to remand the proceeding, although our opinion had not yet issued. In the circumstances we think the public interest would be served by pursuing that course, without stopping to consider whether and to what extent the Delta principle applies to a certificate award still under judicial review, and what kind of showing, if any is possible, would be requisite to justify remand of an order that the court concluded was without legal blemish. We shall in effect dispose of the case as presented, though without stopping to discuss all the matters initially before us, and dismiss the Board's petition to vacate as moot.

B. The Procedural Objections to the Board's June 1, 1965, Order Certifying Eastern.

1. Braniff argues that the June 1, 1965, order is invalid because no quorum of the Board was available on critical dates.

The award on its face indicated that it was concurred in and signed on June 1, 1965, by Chairman Boyd (as well as Members Minetti and Gillilland). Braniff argues that by June 1, 1965, Mr. Boyd was no longer a member of the Civil Aeronautics Board since on that day he was sworn in as Under Secretary of Commerce.

The payroll records of the agencies show that Mr. Boyd was carried on the payroll of the Board only through May 31, 1965, and on the payroll of the Department of Commerce as of June 1, 1965. But these records explicitly declare that they are to be used for payroll purposes only. These bookkeeping computations do not control substantive questions of official authority.

Mr. Boyd did not formally resign. After presiding over the Board's conference on the morning of June 1, he made the short journey to the White House to be sworn in to his new office. We are convinced that he was still a qualified member of the Board when its deliberative process was completed on this case.

2. Braniff then says that although the award was dated and entered on June 1, it was not served until June 2, and that under the Board's own decisions, e. g., New York-Florida Case, 24 C.A.B. 94, 229 (1956), a "proposed decision of the Board does not become effective until an opinion and order containing detailed findings of fact and conclusions of law has been approved, issued, and served * * *. Until such time, each Member has retained full power to revise or reverse his vote and his findings on any of the matters under consideration." (Emphasis added.) We must read that passage in context. It was an attempt by the Board to justify its practice of issuing press releases announcing a result tentatively arrived at long in advance of the issuance of an opinion and order. In our view it is plain that once all members have voted for an award and caused it to be issued the order is not nullified because of incapacity, intervening before the ministerial act of service, of a member needed for a quorum. The Board's rulings on the other orders entered June 1 and served at a later date indicate that the Board considers the crucial time for testing the validity of an order to be the time when it is adopted and entered, and not when it comes into the hands of the parties.² This approach seems entirely reasonable.

3. Next, Braniff challenges the Board's use of its "notation" procedure. Under the notation practice the views and votes of the members of a regulatory agency may be recorded separately rather than in joint session, and circulated to the remaining members for their attention.

Under Section 201(c) of the Federal Aviation Act of 1958, 49 U.S.C. § 1321(c) (1964), "three of the members shall constitute a quorum of the Board." Valid agency action depends on the effective concurrence of a majority of the designated quorum, WIBC, Inc. v. FCC, 104 U.S.App.D.C. 126, 128, 259 F. 2d 941, 943, cert. denied, Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920, 79 S.Ct. 290, 3 L.Ed.2d 239 (1958). But the quorum acting on a matter need not be physically present together at any particular time to ponder the evidence, Sisto v. CAB, 86 U.S.App.D.C. 31, 38, 179 F.2d 47, 54 (1949). Section 1001 of the Act authorizes the Board to "conduct its proceedings in such manner as will be conducive to the proper dispatch of business and to the ends of justice." 49 U.S.C. § 1481 (1964). This permits the Board to proceed with its members acting separately, in their various offices, rather than jointly in conference. This is a reasonable way for the Board to proceed in dealing with its not inconsiderable work load. A similar system is in use on this court for...