Delta Air Lines v. Civil Aeronautics Board

• Decision Date: 24 October 1955
• Docket Number: No. 12694.,12694.
• Citation: 97 US App. DC 46,228 F.2d 17
• Parties: DELTA AIR LINES, Inc., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. Eastern Air Lines, Inc., American Air-Lines, Inc., Louisville and Jefferson County Air Board and Louisville Chamber of Commerce, Inc., The City of Nashville, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

97 US App. DC 46, 228 F.2d 17 (1955)

DELTA AIR LINES, Inc., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent Eastern Air Lines, Inc., American Air-Lines, Inc., Louisville and Jefferson County Air Board and Louisville Chamber of Commerce, Inc., The City of Nashville, Intervenors.

No. 12694.

United States Court of Appeals District of Columbia Circuit.

On Motion to Dismiss July 21, 1955.

On Request for Clarification of Opinion October 24, 1955.

Messrs. L. Welch Pogue, George C. Neal, and James W. Gallison, Washington, D. C., for petitioner.

Messrs. Franklin M. Stone, Gen. Counsel, John H. Wanner, Associate Gen. Counsel, O. D. Ozment, Chief, Litigation and Research Division, and Robert L. Park, Atty., Civil Aeronautics Board, for respondent. Mr. Charles H. Weston, Department of Justice, also entered an appearance for respondent.

Messrs. Harold C. Russell, Atlanta, Ga., of the bar of the Supreme Court of Georgia, pro hac vice, and W. Glen Harlan, Atlanta, Ga., for Eastern Air Lines, intervenor.

Messrs. Clifton J. Stratton, Jr., and Ernest W. Jennes, Washington, D. C., for American Airlines, Inc., intervenor.

Messrs. John A. Diskin, Louisville, Ky., of the bar of the Court of Appeals of Kentucky, pro hac vice, and Robert C. Mayer, Washington, D. C., for Louisville and Jefferson County Air Board and the Louisville Chamber of Commerce, Inc., intervenors.

Mr. W. Jerrold Scoutt, Jr., Washington, D. C., for City of Nashville, intervenor.

Before PRETTYMAN, WILBUR K. MILLER and DANAHER, Circuit Judges.

On Petitioner's Motion for Stay and Respondent's Motion to Dismiss July 21, 1955.

On Request for Entry of Judgment in Accordance With Findings of Court, or for Clarification of Opinion October 24, 1955.

Memorandum on Petitioner's Motion for Stay and Respondent's Motion to Dismiss

PER CURIAM.

Petitioner filed its petition to review certain orders of the respondent denying petitioner's motion for consolidation of a portion of its application in C.A.B. Docket No. 5739 for hearing and decision along with an application filed by Eastern Air Lines, Inc. in C.A.B. Docket No. 3292, or in the alternative for separate but simultaneous hearings of the two applications. Pending review, petitioner asked us to stay the Board's orders insofar as they deny petitioner's motion and all further proceedings before the Board concerning Eastern's application in C. A.B. Docket No. 3292. We heard argument by the named parties and by certain intervenors and by order issued June 17, 1955, denied petitioner's motion in part and stayed the Board proceedings in part until we had had ample opportunity to consider the pleadings and the briefs filed by all concerned. Subsequently the Board has asked us to dismiss the petition for review or, in the alternative, to dissolve the partial stay order of June 17, 1955, and to deny petitioner's motion for stay in its entirety. Since we have now decided to deny petitioner's motion for stay, upon the entry of an order pursuant to this memorandum of opinion the partial stay of June 17, 1955 will be dissolved but the Board's motion to dismiss the petition for review will be denied for reasons which we state.

The Board Order E-9002, sought to be reviewed in the original petition recites:

"Delta asks as alternative relief the consolidation of that portion of Docket No. 5739 which would add Nashville as an alternative intermediate point to Paducah between Memphis and Evansville on route No. 8 and extend route No. 8 from Evansville to Cincinnati via Louisville, and consolidation of that portion of Docket No. 6374 which would add Nashville as an intermediate point on route No. 54 between Knoxville and Lexington and extend route No. 54 from Atlanta to New Orleans. While certain limited phases of the Delta applications would duplicate service proposed by Eastern, the broad implications of the proposals differ so much as to justify the conclusion in the facts now before us that the two are not mutually exclusive. On the other hand, inclusion of the Delta proposals would substantially broaden the scope of the proceeding and delay the decision. Accordingly, it is our conclusion that consolidation and concurrent decision of the Delta applications in this case is not required by the public interest. This conclusion is without prejudice to the right of Delta to demonstrate during the course of the proceeding that grant of the Eastern authority sought herein would preclude approval of the Delta service and that action should therefore be deferred for concurrent consideration."

The Board orally argued to us and in its brief opposing a stay informs us that "The Board has provided a method for Delta to prove its claim of mutual exclusivity with facts, and again to request concurrent consideration of its application before the Board finally acts." The Board further in its brief represents to us:

"Furthermore, the Board made plain in this case that it was not finally denying comparative consideration to petitioner. Petitioner appears to recognize, as it must, that simultaneous decision upon its application and that of Eastern will satisfy even its view of the requirements of Ashbacker Radio Corp. v. Federal Communications Comm., 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). The Board has afforded petitioner an opportunity to make a record on the issue of claimed mutual exclusivity, and to again require comparative consideration on the basis of that record. Until the Board finally acts, however, petitioner has been denied nothing."

The Board in effect has further represented to us, and we accept its representations, that if petitioner can prove upon a factual record that its application and that of Eastern are mutually exclusive, petitioner will be accorded the right to request concurrent consideration of the two applications.

We are clear that on the record as presently made, we cannot determine whether the Delta application and that of Eastern are mutually exclusive nor, in the absence of a finding by the Board in this particular, do we have sufficient information upon which to exercise our review authority. Although in some situations agency orders of a character normally deemed to be interlocutory and not appealable have presented aspects of finality sufficient to justify the exercise of our jurisdiction, we are not convinced that this is such a case.

We rely upon the Board's recognition in its order of Delta's right, and upon the Board's representation to us that it intends to permit Delta, to participate in the Eastern Air Lines, Inc. Route Consolidation Case, to demonstrate upon a factual record that its application and that of Eastern are mutually exclusive, so as to require concurrent consideration of the two applications. The scheduling of hearings is of course within the competence of the Board, but it is obvious that early participation by Delta in this aspect of the case is essential to the effectiveness of the opportunity offered it.

We decline to assume the Commission will afford Delta an opportunity which is less than effective, or that if the facts are established the Commission will fail to find accordingly, or that if the facts are found the Commission will inaccurately apply the law to them.

Let an order enter denying in its entirety petitioner's motion for stay and the Board's motion to dismiss the petition for review.

Memorandum on Request for Entry of Judgment in Accordance With the Findings of the Court, or for Clarification of Opinion

PER CURIAM.

Eastern Air Lines filed with the Civil Aeronautics Board an application for certain modifications of its routes between St. Louis and New York, basically east-west routes. The application also sought additional north-south route segments for service to and between Cincinnati and Memphis. Delta Air Lines operates routes from Detroit to New Orleans, basically north-south routes. Its routes cross the Eastern routes in the neighborhood of Louisville. Delta applied to the Board for modifications of its certificate so as to add service between Cincinnati and Memphis. These are approximately the same north-south segments for which Eastern had applied.

Delta says the traffic between the points on the new segments will support only one service and therefore the applications for these segments are mutually exclusive. Accordingly it moved for consolidation of the applications.

The Board ruled that "the broad implications" of the proposals differed so much "as to justify the conclusion in the facts now before us that the two are not mutually exclusive." So it denied the consolidation. It added: "This conclusion is without prejudice to the right of Delta to demonstrate during the course of the proceeding that grant of the Eastern authority sought herein would preclude approval of the Delta service and that action should therefore be deferred for concurrent consideration."

Delta petitioned this court for review. It also moved for a stay of the Board proceedings. The Board opposed the stay and moved to dismiss the petition.

The first problem was the motion to dismiss. The statute provides¹ that "Any order, affirmative or negative, issued by the Board", except one relating to foreign air carriers, shall be subject to review by the court. The Supreme Court, speaking of this statute, said that the courts have "by self-denying constructions" limited "any" so as to exclude orders which "are inappropriate for review."² And later in that opinion the Court was specific, saying that administrative orders are not reviewable "unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process."³ There is no doctrine that all administrative orders which are interlocutory in form and sequence are not reviewable. So in the case at bar the Board's motion to dismiss posed the question whether the denial of a comparative hearing under the circumstances denies any right of Delta. And, as has been...