Air Line Pilots Ass'n, Internat'l v. Civil Aeronautics Bd., Docket 23137.
| Decision Date | 08 July 1954 |
| Docket Number | Docket 23137. |
| Citation | 215 F.2d 122 |
| Parties | AIR LINE PILOTS ASS'N, INTERNATIONAL et al. v. CIVIL AERONAUTICS BOARD. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel J. Cohen and Henry Weiss, New York City, for Air Line Pilots Ass'n, International, et al., petitioners.
Stanley N. Barnes, Asst. Atty. Gen., Ralph S. Spritzer, Sp. Asst. to Atty. Gen., Emory T. Nunnelly, Jr., General Counsel, and James L. Highsaw, Jr., Chief, Litigation and Research Division of the Civil Aeronautics Board, Washinton, D. C., for Civil Aeronautics Board, respondent.
Debevoise, Plimpton & McLean, New York City, and Covington & Burling, Washington, D. C., Malcolm A. MacIntyre, New York City, Daniel M. Gribbon, and Clifton J. Stratton, Jr., Washington, D. C., of counsel, for American Airlines, intervenor.
Mayer, Meyer, Austrian & Platt, Chicago, Ill., and Hardin, Hess & Eder, New York City, for United Air Lines, Inc., intervenor.
Chadbourne, Parke, Whiteside, Wolff & Brophy, New York City, for Trans World Airlines, Inc., intervenor.
Before HARLAN, Circuit Judge.
The Court being in recess until next October, this application for an interlocutory stay was argued before me as a single member of the Court on July 2, 1954, at which time I allowed the applications of American Airlines, Trans World Airlines and United Air Lines to intervene generally in this proceeding.
After careful consideration of the papers submitted by the various parties and the oral arguments, I have reached the conclusion that the application for a stay must be denied. Because of the importance of the issues I think it is due that I state my reasons for this conclusion.
I entertain no doubt as to the power of the Board to issue the Special Air Regulation here involved. Section 205 (a) of the Civil Aeronautics Act, 52 Stat. 984, 49 U.S.C.A. § 425(a), sets forth in general terms the powers and duties of the Board. The Board is enjoined and empowered, inter alia, "to make and amend such general or special rules, regulations, and procedure, pursuant to and consistent with the provisions of this Act, as it shall deem necessary to carry out such provisions * * *." More specifically, Title VI of the Act, entitled "Civil Aeronautics Safety Regulation", empowers the Board to prescribe and revise from time to time "Reasonable rules and regulations governing, in the interest of safety, the maximum hours or periods of service of airmen, and other employees, of air carriers * * *". 52 Stat. 1007-8, 49 U.S.C.A. § 551(a) (5). In substance what the Board has done here is to revise a regulation governing maximum hours or periods of service of airmen by issuing a special regulation temporarily relaxing the eight-hour rule under prescribed conditions, so as to permit continuance of the existing type of nonstop transcontinental flights, pending the outcome of the general rule making proceeding initiated by the Board on May 28, 1954. Whether the revision be called an exemption, a waiver or a Special Air Regulation seems not important.
The petitioners, contending that the Board was without power to take this action, point to § 416(b) (2) of Title IV of the Act,1 which, in authorizing exemption of carriers from certain provisions of the Act, specifically prohibits exemption from any requirement of Title IV ("Air Carrier Economic Regulation") or from any regulation issued thereunder which provides for maximum flying hours for pilots or co-pilots. 52 Stat. 1005, 49 U.S.C.A. § 496(b) (2). The Special Air Regulation at issue here was made not under Title IV but under Title VI of the Act. Petitioners argue, however, that § 401(d) (1) of Title IV, 52 Stat. 987, 49 U.S.C.A. § 481(d) (1), which requires as a condition precedent to the granting of a certificate of public convenience and necessity a finding that the carrier-applicant is fit, willing and able to conform to the regulations of the Act and of the Board, brings into Title IV regulations respecting flight-time limitations, issued under Title VI, so as to make them unalterable by waiver, exemption or special regulation by reason of the prohibition contained in § 416(b) (2).
This contention seems without merit upon examination of the structure of the Act. Title IV, to which alone the prohibition of § 416(b) (2) applies, is concerned with the economic regulation of air carriers; and the maximum flying hour limitation referred to in § 416(b) (2) relates to the 85-hour monthly limitation established in § 401(l) (1), which requires each carrier to "maintain rates of compensation, maximum hours, and other working conditions * * * so as to conform with decision numbered 83 made by the National Labor Board on May 10, 1934 * * *." 52 Stat. 990, 49 U.S.C.A. § 481(l) (1). A prohibition against exemption from such economic regulation can scarcely be taken to embrace safety regulations promulgated under a different Title of the Act and for largely different purposes.
It is also claimed that the procedure followed by the Board failed to meet the requirements of the Administrative Procedure and Civil Aeronautics Acts. I think this is not so. The Special Air Regulation involved here is easily within the definition of a "rule" as contained in § 2 of the Administrative Procedure Act, 5 U.S.C.A. § 1001(c). And the procedure pursued by the Board conforms to the "rule-making" requirements of § 4 of that Act, 5 U.S.C.A. § 1003. Petitioners had actual notice of proposed rule-making and were afforded an opportunity, of which they availed themselves, to participate in the proceedings through submission of written data, views, and oral argument.
The fact that the Board did not proceed by way of the more formal route provided in §§ 7, 8 of the Administrative Procedure Act, 5 U.S.C.A. §§ 1006, 1007, is of no moment in this proceeding, since such procedure is required only where "rules are required by statute to be made on the record after opportunity for an agency hearing". § 4, A.P.A., 5 U.S.C.A. § 1003(b); see American Trucking Ass'ns v. United States, 1953, 344 U.S. 298, 319-320, 73 S.Ct. 307, 97 L.Ed. 337. No such requirement is to be found in the Civil Aeronautics Act. Even if the Board had acted via its pending general rule-making proceeding, the petitioners would have been entitled to no more formal hearing than they received in this instance.
For these reasons I conclude that the power of the Board to make the Special Air Regulation in question, and the manner in which it proceeded, are not open to any real doubt.
The next question which I consider, and which in my view of the matter requires the denial of this...
To continue reading
Request your trial
-
Arlington Oil Mills, Inc. v. Knebel
...party's opportunity to know about and to participate in the proceeding has resulted. See, e.g., Air Line Pilots Ass'n v. Civil Aeronautics Board, 215 F.2d 122, 124 (2d Cir. 1954); Florida Citrus Commission v. United States, 144 F.Supp. 517, 521 (N.D.Fla.1956). The defendant-intervenors' con......
-
The Hoenig Plywood Corporation v. United States
...v. United States, 262 F. 2d 702; Amerada Petroleum Corp. v. Federal Power Commission, 231 F. 2d 461; Air Line Pilots Association International v. Civil Aeronautics Board, 215 F. 2d 122; Federal Security Administrator v. Quaker Oats Company, 318 U.S. 218; Ideal Farms, Inc. v. Benson, 181 F. ......
-
Lang v. First Nat. Bank in Houston
... ... usually accorded them under Rule 52 of Civil Procedure, 28 U.S.C.A.2 Hence, the trustee ... ...
-
Air Line Pilots Association, International v. Quesada
...Procedure Act.6 See United States v. Storer Broadcasting Co., 1956, 351 U.S. 192, 76 S.Ct. 763, 100 L. Ed. 1081; Air Line Pilots Ass'n v. C.A. B., 2 Cir., 1954, 215 F.2d 122; 1 Davis, Administrative Law § 5.01 (1958); Fuchs, Procedure in Administrative Rule-Making, 52 Harv.L.Rev. 259 The Ad......