Braniff Airways v. Civil Aeronautics Board, 8722.
| Decision Date | 29 January 1945 |
| Docket Number | No. 8722.,8722. |
| Parties | BRANIFF AIRWAYS, Inc., v. CIVIL AERONAUTICS BOARD (ESSAIR, Inc., Intervenor). |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Roger J. Whiteford, of Washington, D.C., with whom Mr. Philip S. Peyser, of Washington, D. C., was on the brief, for petitioner.
Mr. George C. Neal, General Counsel, Civil Aeronautics Board, of Washington, D. C., with whom Messrs. Wendell Berge, Assistant Attorney General, and Edward Dumbauld, Special Assistant to the Attorney General, were on the brief, for respondent. Mr. J. Francis Reilly, of Washington, D. C., also entered an appearance for respondent.
Mr. O. R. McGuire, of Washington, D. C., for Intervenor.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
This is a petition to review an order of the Civil Aeronautics Board which granted to Essair, Inc., a certificate of temporary authority to engage in air transportation between Houston and Amarillo, Texas. The Board denied the application of petitioner Braniff for similar authority. Petitioner claims, also, that the grant to Essair will divert traffic from other routes which petitioner operates. Essair has intervened here.
Essair contends that the petition for review was filed late. Under the Civil Aeronautics Act an order of the Board may be reviewed "upon petition, filed within sixty days after the entry of such order," or later on "leave of court upon a showing of reasonable grounds for failure to file the petition theretofore."1 The petition was filed some months after the date of the Board's original order, but within sixty days after the Board had denied a motion for rehearing. The Act makes no express provision for rehearings. The Board has a rule that a petition for rehearing shall not operate to stay an order unless the Board specifically so orders. In this case the Board denied a request for a stay. Essair contends that the order was not stayed, and that it was therefore necessary to file the petition within sixty days of the date of the order. But we cannot review an order until administrative remedies have been exhausted. For purposes of review, therefore there was no final order until the rehearing was denied.2 It follows that the present petition was timely.
The Board is authorized to issue a certificate "if it finds that the applicant is fit, willing, and able to perform such transportation properly * * * and that such transportation is required by the public convenience and necessity."3 The Act does not define "fit, willing and able" but the Board has established these tests: (1) a proper organizational basis for the conduct of air transportation; (2) a plan for the conduct of the service made by competent personnel; (3)...
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