Civil Aeronautics Board v. Modern Air Transport

• Decision Date: 06 January 1950
• Docket Number: Docket 21473.,No. 97,97
• Citation: 179 F.2d 622
• Parties: CIVIL AERONAUTICS BOARD et al. v. MODERN AIR TRANSPORT, Inc.
• Court: U.S. Court of Appeals — Second Circuit

179 F.2d 622 (1950)

CIVIL AERONAUTICS BOARD et al. v. MODERN AIR TRANSPORT, Inc.

No. 97, Docket 21473.

United States Court of Appeals Second Circuit.

Argued December 13, 1949.

Decided January 6, 1950.

Jacob Freed Adelman, of New York City (Morris A. Schoenfeld, of New York City, and Charles S. Rhyne, of Washington, D. C., on the brief), for defendant-appellant.

Robert Burstein, Atty., Civil Aeronautics Board, Washington, D. C. (William J. Hickey and James E. Kilday, Sp. Assts. to Atty. Gen., Gilbert E. Andrews, Atty., Civil Aeronautics Board, Herbert A. Bergson, Asst. Atty. Gen., Oliver Carter, Chief, Office of Enforcement, Civil Aeronautics Board, Dent D. Dalby, Chief, Enforcement & Litigation Div., Civil Aeronautics Administration, Washington, D. C., and Irving H. Saypol, U. S. Atty., and David McKibbin, Asst. U. S. Atty., both of New York City, on the brief), for plaintiffs-appellees.

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This is an appeal from an order granting the Civil Aeronautics Board a preliminary injunction restraining defendant, Modern Air Transport, Inc., from engaging in air transportation in violation of § 401(a) of the Civil Aeronautics Act of 1938, as amended, 49 U.S.C.A. § 481(a), and from carrying on certain activities as an air carrier without proper authorization by the Board.¹ Defendant has been authorized to engage in air transportation by a Letter of Registration as an Irregular Air Carrier issued it in 1947 under § 292.1 of the Economic Regulations of the Board. This action was brought because, as plaintiffs alleged and the district court found, D.C.S.D. N.Y., 81 F.Supp. 803, the flights of defendant's aircraft exceeded in frequency and regularity those permitted by the terms of this Regulation. Airlines registered under the Regulation are exempted from the prohibition of § 401(a) of the Act against an air carrier engaging in air transportation unless there is in force a certificate of public convenience and necessity issued by the Board, authorizing it to engage in such air transportation. The purpose of this action is to treat defendant's activities beyond the scope of the permission as entirely unauthorized, while defendant contends that there must first be Board action revoking the permission before an appeal can be made to the courts.

It is not disputed here — as, indeed, it could hardly be on the evidence — that defendant operated flights regularly between New York, N. Y., and San Juan, P. R., three or four times each week on Monday, Wednesday, Friday, and Saturday. It is perfectly clear, therefore, as will be pointed out in more detail below, that such regularity and frequency of operations are enough to bar defendant from being classified as an Irregular Air Carrier and to require it to have a certificate of public convenience and necessity. This affords the basis for the Board's contention that, by providing service in excess of that authorized by its registration as an Irregular Air Carrier, defendant loses the benefit of the exemption from § 401(a) provided by the cited Regulation under the authority of § 416(b) of the Act, 49 U.S.C.A. § 496(b), and that it is violating § 401 (a) by offering air transportation without a certificate of public convenience and necessity. The injunction was granted under § 1007(a) of the Act, 49 U.S.C.A. § 647(a), which gives jurisdiction to the district courts to enjoin violation of § 401(a).

Defendant's attack upon the granting of the preliminary injunction is therefore not on the facts, but on jurisdictional grounds. It earnestly contends that so long as its letter of registration as an Irregular Air Carrier has not been suspended, its exemption from § 401(a) is absolute and complete, and that the court has no jurisdiction to enjoin its unauthorized regular service until the Board has first proceeded to take action to suspend or revoke the letter of registration. Its chief reliance is upon what has come to be known as the doctrine of primary administrative jurisdiction, although it does make at least a passing reference to the well-known rule forbidding resort to the courts by litigants before they have exhausted all administrative remedies.

We shall not pause long upon the latter point, not merely because of the greater importance here of the other, but also because it seems to us clear that it serves only to prevent private litigants from attempting to oust administrative bodies from the exercise of adjudication properly committed to them and does not operate to limit the public agencies themselves from fulfilling the duties placed upon them by law. Moreover, whatever there may be of policy in favor of prior administrative action which should be held applicable to the agencies themselves, it is more aptly and pointedly expressed by the other doctrine relied upon, that of primary administrative jurisdiction.

Under this doctrine the courts will not determine a question within the jurisdiction of an administrative tribunal prior to the decision of the tribunal where the question demands the exercise of administrative discretion requiring the special knowledge and experience of the administrative tribunal. 42 Am.Jur. 698-702. This self-denying doctrine has been used by the courts as a ground for refusing to decide the difficult issues of reasonableness of a rate or fairness of a regulation which fall within the area of special competence of the particular administrative agency and for which the agency is said to have primary jurisdiction. 51 Harv.L.Rev. 1251. But this doctrine is not applicable where the issue, regardless of its complexity, is not the reasonableness of the rate or rule, but a violation of such rate or rule. Thus it has been continuously asserted that courts have original jurisdiction to interpret tariffs, rules, and practices where the issue is one of violation, rather than reasonableness. W. P. Brown & Sons Lumber Co. v. Louisville & N. R. Co., 299 U.S. 393, 57 S.Ct. 265, 81...