Air Line Dispatchers Ass'n v. National Mediation Board

• Decision Date: 17 May 1951
• Docket Number: No. 10661.,10661.
• Citation: 189 F.2d 685
• Parties: AIR LINE DISPATCHERS ASS'N et al. v. NATIONAL MEDIATION BOARD et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

189 F.2d 685 (1951)

AIR LINE DISPATCHERS ASS'N et al. v. NATIONAL MEDIATION BOARD et al.

No. 10661.

United States Court of Appeals District of Columbia Circuit.

Argued November 15, 1950.

Decided May 17, 1951.

Mr. B. F. Napheys, Jr., Denver, Colo., of the Bar of the Supreme Court of Colorado, pro hac vice, by special leave of Court, with whom Messrs. Walter M. Bastian and A. K. Shipe, Washington, D. C., were on the brief, for appellants.

Mr. J. Roger Wollenberg, Attorney, Department of Justice, of the Bar of the Supreme Court of California, pro hac vice, by special leave of Court, with whom Asst. Atty. Gen. Herbert A. Bergson, and Messrs. Gerald L. Phelps and Joe F. Nowlin, Attys., Department of Justice, were on the brief, for appellees. Messrs. George Morris Fay, U. S. Atty., and Joseph M. Howard, Asst. U. S. Atty., also entered appearances for appellees.

Before CLARK, PRETTYMAN, and FAHY, Circuit Judges.

FAHY, Circuit Judge.

The Air Line Dispatchers Association, a labor organization, filed with the National Mediation Board, under the Railway Labor Act (44 Stat. 577, as amended, 45 U.S.C.A. §§ 151 et seq.), an application for an investigation of an alleged representation dispute among the flight dispatchers of Pan American-Grace Airways, Inc. The Company operates and the dispatchers are employed solely outside the continental limits of the United States. There was a dispute between the Association and the Company as to whether the Act applies to such carriers and employees. In view of the importance of the question to airlines operating in foreign countries as well as to the particular Company and its employees, the Board held a public hearing. Its resulting Determination concludes that while there appears to be no constitutional impediment to extension by Congress of the Railway Labor Act to employees in foreign countries employed by United States carriers by air, the Act by its terms limits the Board's jurisdiction to the continental United States and its territories. The application was accordingly dismissed.

The Association, invoking both the Administrative Procedure Act (5 U.S.C.A. § 1009) and Section 24(8) of the Judicial Code (28 U.S.C. § 1337), sued the Board and its members in the United States District Court for the District of Columbia, seeking a judgment that the Board has jurisdiction and should determine the dispute. On motion of the defendants the complaint was dismissed, the court deeming judicial review precluded by Switchmen's Union v. National Mediation Board, 1943, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, and United Transport Service Employees v. National Mediation Board, 1949, 85 U.S.App.D.C. 352, 179 F.2d 446.

I (A). By the Switchmen's decision the Supreme Court clearly does preclude review by the courts of Board action determining a disputed question of representation under Section 2, Ninth, of the Railway Labor Act. The Court, however, in passim, said: "Generalizations as to when judicial review of administrative action may or may not be obtained are of course hazardous. Where Congress has not expressly authorized judicial review, the type of problem involved" as well as the "history of the statute in question" becomes highly relevant (320 U.S. at page 301, 64 S.Ct. at page 97, 88 L.Ed. 61).

In the companion case of General Committee v. Missouri-Kansas-Texas R. Co., 1943, 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76, the Court referred to a similar situation as follows:

"* * * the present controversy grows out of an application of the principles of collective bargaining and majority rule. It involves a jurisdictional dispute — an asserted overlapping of the interests of two crafts. * * *

"It seems to us plain that when Congress came to the question of these jurisdictional disputes, it chose not to leave their solution to the courts." (320 U.S. at pages 334, 336, 64 S.Ct. at page 151.)

It is in this context in which we read further in the opinion: "In view of the pattern of this legislation and its history the command of the Act should be explicit and the purpose to afford a judicial remedy plain before an obligation enforcible in the courts should be implied." (320 U.S. at page 337, 64 S.Ct. at page 152.)

Court review was also denied in General Committee v. Southern Pacific Co., 1943, 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85, involving "a jurisdictional controversy between two unions." (320 U.S. at page 343, 64 S.Ct. at page 145.) In Order of Railway Conductors v. National Mediation Board, 1944, 79 U.S.App.D.C. 1, 141 F.2d 366, this court interpreted the Switchmen's case as holding that the federal courts lack jurisdiction to review in any respect the action of the Board in jurisdictional representation disputes. United Transport Service Employees v. National Mediation Board, 1944, 79 U.S.App.D.C. 15, 141 F. 2d 724, also dealt with a representation dispute between two labor organizations. See, also, Kirkland v. Atlantic Coast Line R. Co., 1948, 83 U.S.App.D.C. 205, 167 F.2d 529; United Transport Service v. National Mediation Board, 1949, 85 U.S. App.D.C. 352, 179 F.2d 446, 449, and Radio Officers' Union v. National Mediation Board, 1950, 86 U.S.App.D.C. 319, 181 F.2d 801.

In each of these cases the Board had chosen between alternate methods of settling a dispute over representation under Section 2, Ninth, of the Act. The question was not as to the power of the Board to resolve the dispute but whether it had done so in an erroneous manner. The case now before us is quite different. Here there has been a refusal to take any action to resolve the dispute, upon the view that Congress has not extended the powers of the Board to an employer and its employees geographically situated as are these disputants; that is, outside the continental United States and its territories. This in no sense is Board action within the framework of Section 2, Ninth, or, indeed, within any other of the provisions of the Act for administrative resolution of industrial-labor disputes. This is a different "type of problem" (320 U.S. at page 301, 64 S.Ct. at page 97, 88 L.Ed. 61). The cases have not dealt with the power of the courts to consider the purely legal question of the territorial jurisdiction of the Board. It was said in the Switchmen's opinion: "If the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control. That was the purport of the decisions of this Court in Texas & New Orleans R. Co. v. Brotherhood of Clerks, 281 U.S. 548 50 S.Ct. 427, 74 L.Ed. 1034, and Virginian Ry. Co. v. System Federation, 300 U.S. 515 57 S.Ct. 592, 81 L.Ed. 789. In those cases it was apparent that but for the general jurisdiction of the federal courts there would be no remedy to enforce the statutory commands which Congress had written into the Railway Labor Act." (320 U.S. at page 300, 64 S.Ct. at page 97.)

It could as well be said, though in a more limited territorial application, that the airline dispatchers would suffer a sacrifice or obliteration of a right Congress has created in their behalf were the Board by an erroneous ruling to leave them completely outside the true reach of the statute. That review of such a question has not been hitherto foreclosed to the courts is indicated by the reservation contained in General Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. at page 336, note 12, 64 S.Ct. 146, 152, 88 L.Ed. 76, as follows:

"Whether judicial power may ever be exerted to require the Mediation Board to exercise the `duty' imposed upon it under § 2, Ninth and, if so, the type or types of situations in which it may be invoked present questions not involved here."

A similar reservation appears in Order of Railroad Conductors v. Pennsylvania R. Co., 1944, 323 U.S. 166, 172, 65 S.Ct. 222, 89 L.Ed. 154.

(B). The law was in this posture when the Administrative Procedure Act (5 U.S.C.A. §§ 1001-1011) was approved June 11, 1946. In § 10 it provides:

"Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion —

"(a) Right of Review. — Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof." (5 U.S.C.A. § 1009.)

We pointed out in Kirkland v. Atlantic Coast Line R. Co., supra, that the limitations upon judicial review set forth in the Switchmen's and like cases must be considered as read into the Administrative Procedure Act; that is, review is not available under § 10 where a statute, as judicially interpreted,¹ precludes it. The Attorney General's Manual on the Administrative Procedure Act (1947), p. 136, states the position: "This section, in general, declares the existing law concerning judicial review. It provides for judicial review except insofar as statutes preclude it, or insofar as agency action is by law committed to agency discretion. A statute may in terms preclude judicial review or be interpreted as manifesting a congressional intention to preclude judicial review. Examples of such interpretation are: Switchmen's Union of North America v. National Mediation Board (320 U.S. 297 64 S.Ct. 95, 88 L.Ed. 61); American Federation of Labor v. National Labor Relations Board (308 U.S. 401 60 S.Ct. 300, 84 L.Ed. 347); Butte, Anaconda & Pacific Railway Co. v. United States (290 U.S. 127 54 S.Ct. 108, 78 L.Ed. 222). * * *" (Sen.Doc.No.248, 79th Cong., 2d Sess., pp. 229-230.)

Nevertheless the purpose of § 10 is to afford review unless the matter has been committed to agency discretion — a situation not now presented — or unless Congress has otherwise decided. When, as in the Switchmen's case, it had been held that Congress had manifested its intention to exclude review the new legislation was not to...