CONSOLIDATED FLOWERS SHIP. v. Civil Aeronautics Bd., 13727.

• Decision Date: 30 June 1953
• Docket Number: No. 13727.,13727.
• Citation: 205 F.2d 449
• Parties: CONSOLIDATED FLOWER SHIPMENTS, Inc., — BAY AREA, v. CIVIL AERONAUTICS BOARD.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 449 (1953)

CONSOLIDATED FLOWER SHIPMENTS, Inc., — BAY AREA, v. CIVIL AERONAUTICS BOARD.

No. 13727.

United States Court of Appeals Ninth Circuit.

June 12, 1953.

Upon Motion to File Petition for Review June 30, 1953.

Antonio J. Gaudio, South San Francisco, Cal., for petitioner.

Edward P. Hodges, Acting Asst. Atty. Gen., Emory T. Nunneley, Jr., Gen. Counsel, James L. Highsaw, Jr., Chief, Lit. & Research Div., Civil Aeronautics, Washington, D. C., for respondent Civil Aeronautics Board.

Paul T. Wolf, San Francisco, Cal., for respondent Airborne Flower & Freight.

Before DENMAN, Chief Judge, and MATHEWS and ORR, Circuit Judges.

DENMAN, Chief Judge.

This is a petition by Consolidated Flower Shipments, Inc. — Bay Area, hereafter Consolidated, to stay the effective date of an order entered February 5, 1953, of the Civil Aeronautics Board, hereafter the Board, requiring Consolidated to cease and desist in certain actions, pending the consideration of Consolidated's petition for a review by this court of the Board's order.¹

The petition is opposed as to its merits by the Board and by Consolidated's competitor, Airborne Flower and Freight Traffic, Inc. This court, sua sponte, raised the jurisdictional question whether Consolidated when it filed its petition for review here on April 8, 1953, did so within the sixty days after the entry of the Board's order, provided by § 1006(a) of the Civil Aeronautics Act, 49 U.S.C.A. § 646(a).

On February 24, 1953, Consolidated filed with the Board a petition for reconsideration of the cease and desist order entered on February 5, 1953. On March 3, 1953, the Board stayed that order until thirty days after the determination of the petition for reconsideration. The petition was denied on April 1, 1953, and Consolidated's petition for review by this court was filed on April 8, 1953 — that is sixty-two days after the cease and desist order was entered.

The question arises whether (a) Consolidated's petition for review by us, filed in this court sixty-two days after the order to cease and desist was entered by the Board on February 5, 1953, had had the time for its filing here extended beyond the sixty days of § 1006(a) by the filing and determination of Consolidated's petition to the Board for a reconsideration by the Board of its order or (b) whether under 5 U.S.C. A. § 1009(c), enacted June 11, 1946, the time for review had expired sixty days after the entry of the order of February 5, 1953, thus giving us no jurisdiction for its review.

The construction of subsection (c) presents a question of first instance. No case is cited and we are unable to find any which has considered that subsection. In construing the statute it should be in such a manner that "`if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" Ex parte Public National Bank, 278 U.S. 101, 104, 49 S. Ct. 43, 44, 73 L.Ed. 202; D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704; McDonald v. Thompson, 305 U.S. 263, 266, 59 S.Ct. 176, 83 L.Ed. 164.

The pertinent portions of subsection (c) are:

"(c) Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final shall be final for the purposes of this subsection whether or not there has been presented or determined any application * * *, for any form of reconsideration, * *." (Emphasis supplied.)

The Civil Aeronautics Board is not one of the agencies whose action is excepted from the provisions of the last sentence of subsection (c). Its agency action is "made reviewable by statute", which is not "expressly required by statute" to have its time to seek review begin to run at some other date than the filing of its order. The exceptive clause covers such an agency as Federal Communications Commission, where the time for review, there by appeal, begins to run at the effective date of the order — not the date of the filing of the order itself. Southland Industries v. Federal Communications Commission, 69 App.D.C. 82, 99 F. 2d 117, 118. It is thus apparent that the provisions of the last sentence of subsection (c) cover all agency reviews and are not confined to agency action not theretofore reviewable.

Further consideration shows the lack of merit in the contention that the words "agency action otherwise final" refer solely to agency action heretofore non-appealable. The first phrase of subsection (c) "Every agency action made reviewable by statute" covers final agency action as well as the "final agency action" heretofore without the remedy of review. The "final agency action" ending the next sentence covers all classes of agency action. The succeeding words "agency action otherwise final shall be final for the purposes of this subsection" covers all the agency actions of the subsection, not the agency action of some limited part of the subsection such as such action not heretofore reviewable.

It is not conceivable that Congress would have used the words "for the purposes of this subsection" when it meant "for the purposes of agency action heretofore not reviewable." So to construe the Congressional language would make "void" instead of "giving effect to" the words "this subsection." Ex parte Public National Bank, supra.

We hold that the Board's cease and desist order of February 5, 1953, is agency action covered by the last sentence of subsection (c) and that the order is "agency action otherwise final" which "shall be final * * * whether or not there has been presented or determined any application * * * for any form of reconsideration". Since the cease and desist order entered by the Board on February 5, 1953, is the Board's final order and...