Eastern Air Lines v. Civil Aeronautics Board, 13323.

• Decision Date: 06 December 1956
• Docket Number: No. 13323.,13323.
• Parties: EASTERN AIR LINES, Inc., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Capital Airlines, Inc., Delta Air Lines, Inc., United Air Lines, Inc., Northwest Airlines, Inc., National Airlines, Inc., Trans World Airlines, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

243 F.2d 607 (1956)

EASTERN AIR LINES, Inc., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Capital Airlines, Inc., Delta Air Lines, Inc., United Air Lines, Inc., Northwest Airlines, Inc., National Airlines, Inc., Trans World Airlines, Inc., Intervenors.

No. 13323.

United States Court of Appeals District of Columbia Circuit.

Argued October 22, 1956.

Decided December 6, 1956.

As Amended on Petition for Rehearing and Motion for Reconsideration Denied February 28, 1957.

Mr. Harold L. Russell, Atlanta, Ga., with whom Messrs. W. Glen Harlan and Terry P. McKenna, Atlanta, Ga., were on the brief, for petitioner. Mr. E. Smythe Gambrell, Atlanta, Ga., also entered an appearance for petitioner.

Mr. Robert L. Park, Attorney, Civil Aeronautics Board, with whom Mr. Franklin M. Stone, General Counsel, Civil Aeronautics Board, Mr. John H. Wanner, Associate General Counsel, Civil Aeronautics Board, Mr. O. D. Ozment, Chief, Litigation and Research Division, Civil Aeronautics Board, and Mr. Daniel M. Friedman, Attorney, Department of Justice, were on the brief, for respondent.

Messrs. Robert B. Hankins and Macon M. Arthur, Washington, D. C., entered appearances for intervenor Capital Airlines, Inc.

Mr. James W. Callison, Washington, D. C., was on the brief for intervenor Delta Air Lines, Inc. Messrs. L. Welch Pogue and George C. Neal, Washington, D. C., also entered appearances for intervenor Delta Air Lines, Inc.

Mr. James Francis Reilly, Washington, D. C., was on the brief for intervenor United Air Lines, Inc.

Messrs. C. Edward Leasure and Herman F. Scheurer, Jr., Washington, D. C., were on the brief for intervenor Northwest Airlines, Inc.

Messrs. Richard A. Fitzgerald and Clayton L. Burwell, Washington, D. C., entered appearances for intervenor National Airlines, Inc.

Mr. James K. Crimmins, New York City, was on the brief for intervenor Trans World Airlines, Inc. Mr. William Caverly, Washington, D. C., also entered an appearance for intervenor Trans World Airlines, Inc.

Before EDGERTON, Chief Judge, and PRETTYMAN and FAHY, Circuit Judges.

PRETTYMAN, Circuit Judge.

This is a petition to review orders of the Civil Aeronautics Board. Eastern Air Lines, Inc., is the holder of certificates for air routes known as Route 6, which, generally speaking, extends from Miami north to Boston and northwest to Detroit, Route 10 extending from Miami northwest via Nashville to Chicago, and Route 47 from Washington west to St. Louis. In 1946 it applied for an extension of Route 6 so as to serve points between Washington and Chicago. Various amendments to that application were made from time to time, but essentially it remained as it was. In 1955 the application came on for prehearing conference. Meantime some fifteen carriers filed over fifty applications, which covered almost the whole United States. The Board set up an area hearing, covering generally the area Chicago-Indianapolis-Atlanta-Baltimore-Miami, and consolidated for hearing and disposition all the pending applications for new routes in that area. The case is known as the Great Lakes-Southeast Service Case.¹ Eastern, having three times amended its original application, further amended it so as to apply for "any new air transportation authority sought by any other applicant pursuant to any application which may be consolidated with this application for hearing and decision whether or not that new air transportation authority is sought by a new route proposal or through a combination of a new route proposal with an existing route of said other applicant." Already consolidated with Eastern's application were applications for new air transportation authority involving a combination of new route proposals with existing routes to Seattle, Minneapolis, Denver, San Francisco and Los Angeles. It moved in the alternative (1) that the scope of the proceeding be confined to the issues raised by its application for the extensions of its Route 6 to provide one-carrier service between Chicago and Washington and points south and of its Route 47 to Chicago and Detroit; or (2) "the Board to proceed to hearing on Eastern's application in Docket 2396 alone, without consolidated consideration of any other application"; or (3) that Eastern's additional applications or portions of applications referred to in the amendment just described be consolidated into the proceeding for hearing. The Board denied these motions. Eastern petitions for review.

We think that under our decision in United Air Lines v. Civil Aeronautics Board² the order denying consolidation was not a "final order" and so cannot be reviewed here now. The order does not by any means foreclose consideration of Eastern's far-West and Southwest applications in proceedings appropriate for that purpose. To the discussion in the United case we add a comment. Eastern urges that, since its new applications are mutually exclusive to those of other applicants, it is entitled as of right to consolidation with them under the rule in Ashbacker.³ But it is quite clear that there must be some limitation to the Ashbacker rule when applied to air routes. The point is well illustrated in the present proceeding. Eastern has a...