Eastern Air Lines, Inc. v. CAB

• Decision Date: 29 November 1965
• Docket Number: No. 19447.,19447.
• Citation: 354 F.2d 507,122 US App. DC 375
• Parties: EASTERN AIR LINES, INC., and National Airlines, Inc., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 US App. DC 375, 354 F.2d 507 (1965)

EASTERN AIR LINES, INC., and National Airlines, Inc., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent.

No. 19447.

United States Court of Appeals District of Columbia Circuit.

Argued September 29, 1965.

Decided November 29, 1965.

Messrs. John H. Wanner, Gen. Counsel, Civil Aeronautics Board, Joseph B. Goldman, Deputy Gen. Counsel, and O. D. Ozment, Associate Gen. Counsel, were on the pleadings for respondent. Mr. Robert L. Toomey, Atty., Civil Aeronautics Board, also entered an appearance for respondent.

Messrs. E. Smythe Gambrell, Harold L. Russell, Atlanta, Ga., John W. Cross and Andrew T. A. Macdonald, Washington, D. C., were on the pleadings for petitioners.

Before WASHINGTON^*, WRIGHT and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

In 1956, the Civil Aeronautics Board (CAB) certified Northeast Airlines, for a temporary period of five years, to operate as a third carrier over the East Coast-Florida route in competition with two permanently-certified carriers, Eastern and National.

In April 1961, Northeast applied to the CAB for renewal of its temporary certificate for the route. Lengthy hearings culminated in a 3-2 CAB decision in August 1963, denying Northeast's application on the basis either that there was no need for a third carrier, contrary to its finding in 1956, or that Northeast was not fit to be that carrier.¹

On Northeast's petition for review, the Court of Appeals for the First Circuit reversed and remanded the case to the CAB, on the ground that it "ought not to have to speculate as to the basis" for the agency's denial of Northeast's application, or as to its finding in support thereof. Northeast Airlines, Inc. v. CAB (I), 331 F.2d 579, 586 (1st Cir. 1964).

Upon remand, the CAB reaffirmed its previous conclusions, making reference to official reports containing evidentiary data filed by carriers after the closing of the old record. Order E-21550 (December 1, 1964).² Northeast petitioned for rehearing, asserting it had been denied an opportunity to rebut or explain the data in the reports noticed by the CAB. The CAB adhered to its previous decision. Order E-21872 (March 5, 1965).

Northeast again petitioned the First Circuit for review, and also moved for an order directing the CAB to receive its offered evidence in rebuttal of reports allegedly noticed. Explicitly noting that it was not reviewing on the merits, and again retaining jurisdiction, the First Circuit granted Northeast's motion and remanded to the CAB, stating that "having opened the door to new data, the Board was obliged to take a full look." Northeast Airlines, Inc. v. CAB (II), 345 F.2d 484 (1st Cir. April 13, 1965).

In response to this second remand, the CAB issued the order (E-22084) challenged here. It decided to reopen the proceeding completely, stating that since hearings on the matters raised by Northeast would be extensive anyway, "it is in the public interest to utilize the reopened proceeding for a complete review of the issues," including a consideration of whether a third carrier was needed, and if so, consideration of "all qualified applicants who may wish to apply for the route." Since the First Circuit had previously retained its jurisdiction without setting aside the orders involved, the CAB itself rescinded its four orders in the New York-Florida Renewal Case, "subject to any necessary permission from the court." Order E-22084 (April 26, 1965).

Upon the CAB's application³ to the First Circuit, that court decided that although the CAB order went beyond the court's second remand to that agency —

Nonetheless, we do not consider the Board\'s order inappropriate, and if necessary for us to assent thereto, we do so. Furthermore, we think its action fully within the Board\'s discretion and not subject to review.

* * * * * *

An order will be entered, to take effect ten days after the date of this opinion, approving the order of the Board of April 26, 1965, remanding the cause to the Board, and relinquishing our jurisdiction.

345 F.2d 488, 490 (May 11, 1965). At the same time, the court realizing that Eastern and National were no longer aligned⁴ with the CAB after its order of April 26 (E-22084), permitted them to intervene so that they could seek review in the Supreme Court. Northeast Airlines, Inc. v. CAB (III), 345 F.2d 488. National and Eastern sought a stay from the First Circuit of the decision of May 11, in order to perfect their petition for certiorari. Their request was granted; however, the court made it quite clear it granted a stay so that the two intervenors could seek review of the May 11 decision as well as that of April 13. Indeed, the court stated it would be "quite inappropriate" and a "piecemeal attack" to seek review of the one without the other. Northeast Airlines, Inc. v. CAB (III, IV), 345 F.2d 488, 490 (1st Cir. May 19, 1965).

Eastern and National filed a petition for certiorari on that same day, May 19, 1965, seeking review only of the First Circuit's April 13 decision Northeast Airlines, Inc. v. CAB (II), supra, which set aside the CAB's second order denying Northeast's application. A few weeks later the two carriers filed a supplement to their petition for certiorari to request review of the later First Circuit decisions of May 11 and May 19 Northeast Airlines, Inc. v. CAB (III), (III, IV), supra. On October 11, 1965, the Supreme Court denied certiorari, Eastern Airlines v. Northeast Airlines, 86 S.Ct. 41.

Meanwhile, on June 24, 1965, Eastern and National petitioned this court for review of Order E-22084 (April 26, 1965).

The case is before us on the Board's motion to dismiss the appeal, or in the alternative to transfer the petition for review to the Court of Appeals for the First Circuit. We grant the motion by entering an order for transfer of the petition for review to the First Circuit.

The provisions for judicial review in the Federal Aviation Act, 49 U.S.C. § 1486, which are typical of judicial review provisions in other regulatory statutes, operate to invest all intermediate federal courts with the power to review orders of the CAB. Only particular circuits are specified as appropriate for venue, or situs of review, but improper venue may be waived unless an objection is seasonably asserted. Panhandle Eastern Pipe Line Co. v. FPC, 324 U.S. 635, 638, 65 S.Ct. 821, 89 L.Ed. 1241 (1945).

Without regard to the authority provided by 28 U.S.C. § 2112, a court of appeals having venue may exercise an inherent discretionary power to transfer the proceeding to another circuit in the interest of justice and sound judicial administration, Pacific Gas & Electric Co. v. FPC, 106 U.S.App.D.C. 281, 282, 272 F.2d 510, 511 (1958); Panhandle Eastern Pipe Line Co. v. FPC, 337 F.2d 249, 252 (10th Cir. 1964); Panhandle Eastern Pipe Line Co. v. FPC, 343 F.2d 905, 909 (8th Cir. 1965); but see Gulf Oil Corp. v. FPC, 330 F.2d 824 (5th Cir. 1964).

Certainly one factor that has considerable weight in the guidance of judicial discretion is the desirability of transfer to a circuit whose judges are familiar with the background of the controversy through review of the same or related proceedings. Pacific Gas & Electric Co. v. FPC, supra.

The court's inherent authority, when not expanded by statutory authority, permits transfer over objection only to a transferee court "having jurisdiction and venue." Panhandle Eastern Pipe Line Co. v. FPC, supra, 343 F.2d at 909. Here the First Circuit does not have statutory venue, since neither of the petitioners has its domicile or principal place of business there. Venue can not be supplied by consent, because petitioners object to the transfer.

However, we think that 28 U.S.C. § 2112(a) is available as authority for the transfer. The literal terms of the statute have been met in that "proceedings have been instituted in two or more courts of appeals with respect to the same order."⁵ Undoubtedly the specific situation here was not within the specific contemplation of Congress, which was particularly concerned with preventing the agency from selecting the forum by filing the record in the court of its selection.⁶ But it is no bar to interpreting a statute as applicable that "the question which is raised on the statute never occurred to the legislature."⁷

The breadth of language and vision of § 2112 goes beyond the...