City of San Antonio v. CAB
| Citation | 374 F.2d 326 |
| Decision Date | 07 February 1967 |
| Docket Number | 20464,No. 20383,20500.,20383 |
| Parties | The CITY OF SAN ANTONIO and the San Antonio Chamber of Commerce, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent. The GREATER TAMPA CHAMBER OF COMMERCE, the City of Tampa, and the County of Hillsborough, Florida, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent. STATE OF WISCONSIN, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Mr. Albert F. Beitel, Washington, D. C., with whom Mr. William A. Wildhack, Jr., Washington, D. C., was on the brief, for petitioners in No. 20,383.
Mr. Howard S. Boros, Washington, D. C., for petitioner in No. 20,500. Mr. George F. Sieker, Madison, Wis., was on the brief for petitioner in No. 20,500.
Mr. O. D. Ozment, Deputy General Counsel, Civil Aeronautics Board, with whom Asst. Atty. Gen. Donald F. Turner and Messrs. Joseph B. Goldman, General Counsel, Warren L. Sharfman, Associate General Counsel, Litigation and Legislation, Robert L. Toomey, Assistant Chief, Litigation and Legislation, Civil Aeronautics Board, and Howard E. Shapiro, Attorney, Department of Justice, were on the brief, for respondent.
Before BASTIAN, Senior Circuit Judge, and WRIGHT and McGOWAN, Circuit Judges.
Petition for Rehearing before the Division in No. 20,383 and Petition for Rehearing En Banc in No. 20,500 Denied April 3, 1967.
The Transpacific Route Investigation is a new route proceeding now being conducted by the Civil Aeronautics Board involving air carrier certification pursuant to Section 4011 of the Federal Aviation Act covering transportation between the United States mainland and Hawaii and other areas of the Pacific. These appeals challenge certain preliminary orders issued by the Board in that proceeding.
By order dated June 15, 1965, the Board instituted the current2 Transpacific Route Investigation to examine "the pattern of operations by United States carriers in foreign and overseas air transportation in the Pacific" and to consider and dispose of "applications with respect to such air transportation." By May 25, 1966, over 40 applications for certification from various carriers, including all 11 domestic trunk lines, three all-cargo carriers, and two Pacific Northwest-Alaska carriers, had been received. Also on file at that time were motions from 20 carriers to consolidate for hearing the applications for certification.
On May 25, 1966, the Board issued a consolidation order limiting consideration of non-stop service to the Pacific to 25 mainland cities. The carrier applications as filed had proposed non-stop service to and from a total of 72 mainland cities. In eliminating 47 of these cities from consideration in the current proceeding, the Board used three criteria: size, traffic generating capacity, and geographical location. As stated by the Board:
Tampa, Florida, and San Antonio, Texas, though in the list of 72 cities found in the applications of the carriers, were not selected for non-stop service consideration in the consolidated proceedings. Petitions for reconsideration of the consolidation order were filed in behalf of these two cities and were denied by the Board. Petitions to intervene in the proceedings were also filed by Tampa and San Antonio, and by the State of Wisconsin in behalf of Milwaukee. These three petitions were denied by the Examiner and that denial was affirmed by the Board. In these appeals this court is asked to review the action of the Board in failing to include Tampa and San Antonio in its consolidation order, and in denying the applications to intervene filed in behalf of Tampa, San Antonio, and Milwaukee.
With reference to the consolidation order, petitioners contend that the Board prejudged their transportation needs by failing to include them in the list of the cities to be considered in the current Pacific study. They also maintain that the criteria used by the Board were either illegal per se or arbitrarily applied as to them, and that the findings on which the consolidation order is based are inadequate in that they do not comply with the requirements of 5 U.S.C.A. § 557(c) (1966), formerly Section 8(b) of the Administrative Procedure Act, 5 U.S.C. § 1007.3
No principle of administrative law is more firmly established than that of agency control of its own calendar. Practical problems of calendar administration confront an agency whenever related applications are pending at the same time. Consolidation, scope of the inquiry, and similar questions are house-keeping details addressed to the discretion of the agency and, due process or statutory considerations aside,4 are no concern of the courts.5 "Congress plainly intended to leave the Board free to work out application procedures reasonably adapted to fair and orderly administration of its complex responsibilities." Civil Aeronautics Board v. State Airlines, Inc., 338 U.S. 572, 576, 70 S.Ct. 379, 94 L.Ed. 353 (1950). This is precisely what Congress had in mind when, in Section 1001 of the Federal Aviation Act, it granted the Board authority 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.
In this transpacific study the Board was confronted with carriers' applications for non-stop Pacific service from 72 cities. It could have decided to hear the applications one at a time, all at one time, or some now and some later. Neither Tampa nor San Antonio suggests that the applications should have been heard one at a time. The Board decided that to hear them all at one time "could produce a proceeding of virtually unlimited proportions and would seriously delay our reexamination of the transpacific route pattern, a matter which is deemed by the President and the Board to be one of high priority."
Having made that judgment, the Board was required to develop criteria for determining which applications would be heard first. The study obviously had to be broad enough to reflect the service needs of the whole country and, at the same time, to discover which mainland cities were best situated to accommodate these needs in the immediate future. The proceeding also had to be kept within manageable limits lest the Board be paralyzed in performing its function. In short, the line between those of the 72 cities which would be considered for non-stop service in the current proceeding and those which would not had to be drawn somewhere. In our judgment the criteria used by the Board in drawing the line were reasonably related to the legitimate end it seeks to achieve.
Among the applicants for certificates there was a sharp divergence of opinion as to where to draw the line — one, for example, suggested that cities with a population of 900,000 or more be considered for non-stop service, while another suggested the number be over 2,000,000. The Board set the figure at 1,000,000 for the metropolitan area, but added two additional criteria: domestic traffic generating capacity and geographical location. Using these criteria the Board selected for consideration in the current proceeding 25 cities. Since neither Tampa nor San Antonio had a metropolitan population of 1,000,000 or over, neither was selected.6
To the extent that the criteria used by the Board resulted in excluding petitioners from the current Pacific study, the Board did indeed decide that the cities selected for consideration were, at the present time, more likely candidates for non-stop Pacific service. But this decision by no means represents a final judgment by the Board of petitioners' potential as Pacific terminals.7 That convenience and necessity judgment will be made when applications proposing petitioners for non-stop service are heard by the Board in a later proceeding. Thus whatever prejudgment is implicit in this action by the Board was necessitated by practical management considerations. Under the circumstances we cannot say that the Board acted irrationally or arbitrarily.8
Tampa impugns the Board's candor in using the complexity of the case as a reason for limiting the proceedings. Tampa asserts that, even though consideration is limited to 25 cities as nonstop terminals, in making its judgment the Board must in any event consider traffic and benefits to all cities on the applicants' existing domestic routes, including those not designated as potential co-terminals in this proceeding. Thus, Tampa argues, the evidence as to the traffic potential of the cities excluded by the consolidation order will nevertheless be heard, and consequently the proceedings will be just as complex as if these cities had not been excluded.
Tampa is wrong in this suggestion. Only the cities selected for nonstop Pacific service will be tested by the convenience and necessity standard in this proceeding. The numerous economic elements which must be considered in applying this standard and in determining whether a city so needs air service that a carrier shall be required to provide it are quite different from the incidental benefits to other cities along the carriers' domestic routes which may flow from such certification. The certificate of convenience and necessity requires service, whereas Pacific service to "beyond" points on the applicants' existing routes would be discretionary with the...
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