Delta Air Lines, Inc. v. CAB, No. 248

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtWATERMAN and MOORE, Circuit , and SMITH
Citation280 F.2d 43
PartiesDELTA AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Lake Central Airlines, Inc., et al., Intervenors.
Docket NumberNo. 248,Docket 25852.
Decision Date29 June 1960

280 F.2d 43 (1960)

DELTA AIR LINES, INC., Petitioner,
v.
CIVIL AERONAUTICS BOARD, Respondent,
Lake Central Airlines, Inc., et al., Intervenors.

No. 248, Docket 25852.

United States Court of Appeals Second Circuit.

Argued March 30, 1960.

Decided June 29, 1960.


280 F.2d 44

R. S. Maurer, James W. Callison, Atlanta, Ga. (Frank F. Rox, Atlanta, Ga., of counsel), Legal Division, Delta Air Lines, Inc. for petitioner.

Robert A. Bicks, Acting Asst. Atty. Gen., Richard A. Solomon, Atty., Dept. of Justice; Franklin M. Stone, Gen. Counsel, Civil Aeronautics Bd.; John H. Wanner, Deputy Gen. Counsel; O. D. Ozment, Assoc. Gen. Counsel, Litigation and Research; Morris Chertkov, Atty., Civil Aeronautics Bd., Washington, D. C., for respondent.

Albert F. Grisard, Washington, D. C., for intervenor, Lake Central Airlines, Inc.

Before WATERMAN and MOORE, Circuit Judges, and SMITH, District Judge.

WATERMAN, Circuit Judge.

Petitioner is a certificated trunk-line air carrier possessing routes that, in the main, run from the mid-west to the southeast quarter of the country. The present controversy arises out of the Board's area proceeding known as the "Great Lakes-Southeast Service Case." Other aspects of this same area proceeding were recently before this court in Eastern Air Lines v. C. A. B., 2 Cir., 1959, 271 F.2d 752, 755, certiorari denied 362 U.S. 970, 80 S.Ct. 954, 4 L.Ed.2d 901. For a general description of this "area proceeding" and for a statement of the air transportation the Board had under consideration in the "Great Lakes-Southeast Service Case" we refer to our opinion in Eastern Air Lines v. C. A. B., supra.

In its decision and order in the above area proceeding, Order No. E-13024 of September 30, 1958, the Board added six cities to Delta's pre-existing Route 54, which prior to that time served Chicago and Miami with certain intermediate points, but bypassed Indianapolis. The addition to Delta's authority of the three cities of Columbus, Toledo, and Detroit permitted Delta for the first time to offer service between Miami and Detroit, and for that reason this authority extension was important to the issues presented to this court in Eastern Air Lines v. C. A. B., supra, but it has no bearing on the question now before us. The addition of the three cities of Dayton, Louisville, and Indianapolis permitted Delta for the first time to offer service between these cities and the other cities which lay on its Route 54. Since Indianapolis already was an authorized intermediate point on Delta's Route 8 between New Orleans and Detroit, the inclusion of Indianapolis as an intermediate point on Route 54 had the additional effect, which the Board recognized and approved, of permitting Delta on the same flight, provided that the flight stopped at Indianapolis, to serve cities on both of these routes.1 By the Board's September 30 order Delta's new certificate, incorporating this additional authority, was to become effective on November 29, with the proviso that prior thereto the Board might extend

280 F.2d 45
that effective date upon its own initiative or upon a petition for reconsideration of the Board's September 30 order. The new certificates of other carriers who had received new authorizations under the "Great Lakes-Southeast Service" decision had the same effective date and were subject to the same proviso

Numerous petitions for reconsideration were indeed filed. Included among these were petitions by Lake Central Airlines, Inc. and Piedmont Aviation, Inc., two local service carriers. The new route applications of all local service carriers had been excluded by the Board from the "Great Lakes-Southeast Service Case," the Board stating that it would consider them later in a separate proceeding. The local service carriers, however, were permitted to intervene to present evidence as to the effect that an award to a trunkline carrier might have upon the local service carriers' present or contemplated operations. In their petitions for reconsideration Lake Central and Piedmont sought, inter alia, to have restrictions imposed on Delta's service between ten pairs of cities2 which, as a result of the addition of Indianapolis, Louisville and Dayton to Route 54, Delta would be able to serve without restriction under the certificate authorized by the Board's September 30 decision. Lake Central's petition contained a request to stay the effective date of Delta's certificate. By order No. E-13190, dated November 21, the Board stayed the effectiveness of Delta's certificate for the period to and including December 6 for the convenience of this court in considering Eastern's request for a judicial stay. Two other certificates were also stayed for this reason. On November 28, 1958 the Board issued Order No. E-13211, which, with one exception,3 refused to stay the effective date of any new certificate beyond December 7. The Board assigned two interrelated reasons for its refusal to grant further stays. First, the Board found that the various reconsideration petitions did not make sufficient showings of probable legal error or abuse of discretion. Second, the Board wished to have the new services inaugurated in time for the peak period of winter travel. The Board's opinion in Order No. E-13211 closed with the statement that the order was not a disposition of the several petitions for reconsideration on their merits.4

On December 4 this court denied Eastern's request for a judicial stay, and, in recognition thereof, on December 5 the Board by Order No. E-13245 dissolved the stay imposed by Order No. E-13190. Accordingly, on December 5, 1958, Delta's certificate became effective. On January 1, 1959, pursuant to schedules filed with the Board, Delta inaugurated service between Chicago and Indianapolis, with flights continuing beyond Indianapolis southward to Evansville, Indiana, a city Delta was authorized to service on its previously established Route 8.

On May 7, 1959 the Board issued the order here complained of, Order No. E-13835.5 This order constituted the

280 F.2d 46
Board's formal disposition of the various petitions for its reconsideration of the September 30 decision. This order modified the former decision. One modification was that restrictions were imposed on Delta's service between the ten pairs of cities set forth in footnote 2, supra, so that a Delta flight serving any of the pairs of cities was required to originate at Atlanta or at a point on Route 54 south thereof.6 One effect of the restrictions was to forbid the service Delta had inaugurated between Evansville and Chicago via Indianapolis unless that flight began at Atlanta and proceeded on a circuitous routing through Memphis

The issue here is whether, on the above facts, the Board had...

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3 practice notes
  • Civil Aeronautics Board v. Delta Air Lines, Inc Lake Central Airlines, Inc v. Delta Air Lines, Inc, Nos. 492 and 493
    • United States
    • United States Supreme Court
    • June 12, 1961
    ...a prerequisite to the exercise of the Board's power to change an existing certificate. Delta Air Lines, Inc., v. Civil Aeronautics Board, 280 F.2d 43. The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a ......
  • Nebraska Department of Aeronautics v. CAB, No. 16589
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 4, 1962
    ...hearing requirement by the very terms of the statute is an absolute one. Delta Air Lines, Inc. v. Civil Aeronautics Board, 2 Cir., 1960, 280 F.2d 43, 48, affirmed, 1961, 367 U.S. 316, 321, 81 S.Ct. 1611, 6 L.Ed.2d Nebraska's reference to and reliance upon the emergency rule finds its answer......
  • Tennessee Life Insurance Company v. Phinney, No. 18160.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 15, 1960
    ...holding. We, therefore, conclude that the judgment of the District Court was right. It is affirmed. CAMERON, Circuit Judge (dissenting). 280 F.2d 43 I respectfully dissent from the opinion of the majority affirming the judgment of the district court. The case of Magruder v. Supplee, May, 19......
3 cases
  • Civil Aeronautics Board v. Delta Air Lines, Inc Lake Central Airlines, Inc v. Delta Air Lines, Inc, Nos. 492 and 493
    • United States
    • United States Supreme Court
    • June 12, 1961
    ...a prerequisite to the exercise of the Board's power to change an existing certificate. Delta Air Lines, Inc., v. Civil Aeronautics Board, 280 F.2d 43. The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a ......
  • Nebraska Department of Aeronautics v. CAB, No. 16589
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 4, 1962
    ...hearing requirement by the very terms of the statute is an absolute one. Delta Air Lines, Inc. v. Civil Aeronautics Board, 2 Cir., 1960, 280 F.2d 43, 48, affirmed, 1961, 367 U.S. 316, 321, 81 S.Ct. 1611, 6 L.Ed.2d Nebraska's reference to and reliance upon the emergency rule finds its answer......
  • Tennessee Life Insurance Company v. Phinney, No. 18160.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 15, 1960
    ...holding. We, therefore, conclude that the judgment of the District Court was right. It is affirmed. CAMERON, Circuit Judge (dissenting). 280 F.2d 43 I respectfully dissent from the opinion of the majority affirming the judgment of the district court. The case of Magruder v. Supplee, May, 19......

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