Great Lakes Airlines, Inc. v. CAB, 16672.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation291 F.2d 354
Docket NumberNo. 16672.,16672.
Decision Date04 May 1961


Keatinge & Older by Roland E. Ginsburg, Los Angeles, Cal., for petitioners.

Robert A. Bicks, Asst. Atty. Gen., Richard A. Solomon, Atty., Dept. of Justice, Franklin M. Stone, Gen. Counsel for Civil Aeronautics Bd. (CAB), John H. Wanner, Deputy Gen. Counsel, for CAB; O. D. Ozment, Associate Gen. Counsel, Litigation and Research, William F. Becker and Morris Chertkov, Attys., for CAB, Washington, D. C., for respondent.

Before HAMLEY, HAMLIN and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

This is a petition to review an order of the Civil Aeronautics Board entered at the conclusion of an administrative enforcement proceeding. The petitioners are two air carriers (Great Lakes Airlines, Inc., and Currey Air Transport, Ltd.), Irving E. Hermann and Ida Mae Hermann, his wife, and several service companies and ticket agencies, all respondents in the enforcement proceeding. Several other respondents were dismissed from that proceeding and are not petitioners here.

The administrative proceeding was instituted on October 14, 1954, by the Board's bureau of enforcement, formerly called the office of compliance. In the bureau's complaint filed on that day petitioners were charged with the knowing and willful violation of certain provisions of the Civil Aeronautics Act, administrative regulations and a Board order.1

The acts allegedly constituting these violations were of the following five kinds: (1) The two air carriers, each holding authority to conduct only infrequent and irregular operations between any two points, actually held out and provided a regular and frequent transcontinental service; (2) the two carriers together with respondent ticket agencies and service companies, all under the common control and management of the Hermanns, held out and conducted regular operations as a single integrated carrier, which carrier lacked authority to engage in air transportation; (3) petitioners entered into various control relationships without Board approval; (4) petitioners disregarded the prohibition against combining the operations of irregular carriers in order to effect a regular service; and (5) petitioners did not comply with certain ticket agency requirements which were designed to forestall various abuses.

The relief sought by the bureau of enforcement was an order revoking the licenses of Great Lakes and Currey to engage in air transportation and requiring all petitioners to cease and desist from engaging in air transportation, directly or indirectly, and from violating section 408 of the Civil Aeronautics Act.

Hearings were held before a hearing examiner of the Board from January through April 1955. The hearings were then in recess until August 1957, pending proceedings brought by the Board against petitioners to enforce administrative subpoenas. The outcome was a court order enforcing the subpoenas. See Hermann v. CAB, 9 Cir., 237 F.2d 359, reversed sub nom. CAB v. Hermann, 353 U.S. 322, 77 S.Ct. 804, 1 L.Ed. 2d 852.2

The hearings were resumed in August 1957 and continued through December of that year. The examiner issued his initial decision on January 19, 1959. He found that petitioners had knowingly and willfully violated the statutory provisions, and the regulations and previous order of the Board by their acts as described above. It was his conclusion that all the relief sought by the bureau of enforcement should be granted.

Petitioners filed exceptions to the initial decision, and argument was had before the Board on May 6, 1959. The Board issued its order on September 28, 1959. The findings and conclusions of the examiner were for the most part adopted. Consistent therewith, the Board's order revoked the licenses of Great Lakes and Currey to engage in air transportation. In the same order all petitioners were required to cease and desist from engaging in air transportation, directly or indirectly, and from violating section 408 of the act.

Petitions for rehearing, reargument and reconsideration, and for a stay of the order of September 28, 1959, pending judicial review were denied on November 10, 1959. The instant petition for review was filed in this court on November 14, 1959.3 We have jurisdiction under 49 U.S.C.A. § 646(a), and venue is proper under 49 U.S.C.A. § 646(b). We stayed the Board order of September 28, 1959, pending disposition of this petition for review.

In seeking to set aside the Board order, petitioners first advance several arguments with regard to the appearance of Board employees as witnesses.

On November 12, 1957, counsel for petitioners presented to the examiner subpoenas ad testificandum calling for the appearance as witnesses of eight Board employees.4 The examiner immediately declined to issue the subpoenas. He did so on the ground that the provisions of rule 19(g) of the Board's procedural regulations were controlling and the procedure set forth in that rule must be followed.5

While petitioners were thus required to follow the rule 19(g) procedure, the bureau did not follow that procedure with respect to the ten Board employees whom it called as witnesses. Petitioners argue that it was therefore improper for the examiner to receive the testimony of Board employees called by the bureau and the documents introduced in connection with their testimony.

In support of this argument petitioners point out that in the Board's discussion of rule 19(g) at the time of its adoption the statement was made that "The Board does not intend to deprive parties of the opportunity to request, in appropriate situations, the testimony of Board personnel * * *." (Emphasis supplied.)6 Rule 9 of the Board's Rules of Practice provides that "The term party wherever used in this part shall include * * * the Compliance Attorney in any proceeding." 14 C.F.R. § 302.9 (1956). Petitioners also call attention to the fact that rule 19(g) was subsequently amended to provide that "No application will be required for the attendance of Board personnel or the production of records in their custody when requested by a Compliance Attorney."7 It is argued from this that prior to the amendment of rule 19(g) the Board's enforcement attorney was subject to that rule.

Rule 19 is entitled "Subpenas." It deals with compulsory attendance and compulsory production of documents. As originally worded, rule 19 contained no specific provision excluding from the application of the rule the testimony of Board personnel or the production of Board documents in economic proceedings. The Board, however, had consistly construed rule 19 in its original form as not applicable to the attendance of Board officers or employees as witnesses or the production of Board records. For the purpose of clarifying the rule in this respect and to provide a procedure whereby the testimony of Board personnel and the production of Board records could be obtained in appropriate situations, subsection (g) was added to rule 19 in 1953.8

Rule 19(g) thus specified the procedure to be followed where the compulsory attendance of Board personnel or the compulsory production of Board records was desired. It is improbable that rule 19(g) was intended to afford a procedure available to the enforcement attorney since it would be reasonable to assume that he could always obtain the voluntary attendance of Board personnel. The ten Board employees called as witnesses by the bureau of enforcement attended the hearings and produced records voluntarily. Hence it was not necessary for the bureau to invoke any procedures to compel them to do so, even if the rule 19(g) procedure was then available to the enforcement attorney. Petitioners suffered no prejudice by reason of the fact that Board personnel appeared voluntarily rather than pursuant to rule 19(g) procedure.

The failure of the enforcement attorney to invoke rule 19(g) procedure in obtaining the testimony and documentary evidence submitted by Board personnel did not render that evidence inadmissible.

Petitioners further argue, however, that rule 19(g) is violative of section 6(c) of the Administrative Procedure Act, 5 U.S.C.A. § 1005(c), relating to the issuance of subpoenas. It was therefore error, petitioners contend, for the examiner to require them to follow the rule 19(g) procedure in an effort to obtain the attendance of Board employees.

It is provided in section 6(c) of the Administrative Procedure Act that "agency subpoenas authorized by law shall be issued to any party upon request, and, as may be required by rule of procedure, upon a statement or showing of general relevance and reasonable scope of the evidence sought." Rule 19(g) requires the applicant to "set forth the need of the moving party for such evidence and its relevancy to the issues of the proceeding."

Thus the rule requires a showing of relevance as the statute provides may be required by rule of procedure. But while section 6(c) provides that procedural rules may also require a showing of "reasonable scope," rule 19(g) requires that the "need" for the evidence be shown.9

The showing which must be made in order to obtain favorable action by the examiner under rule 19(g) is essentially that which is contemplated within the terms of section 6(c). If proposed evidence is relevant and within a reasonable scope, it is unlikely that it would be rejected as unneeded when the rule 19(g) test is applied. Conversely, if proposed evidence is either irrelevant or goes beyond a reasonable scope within the meaning of section 6(c), it would be irrelevant or unneeded within the context of rule 19(g).10

From what is said above we conclude that rule 19(g) is not violative of section 6(c) in any respect that could be prejudicial here. But if the requirements under rule 19(g) do go beyond those permissible...

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  • Smith v. Schlesinger, 74-1440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 1975
    ...Control Bd., 102 U.S.App.D.C. 395, 254 F.2d 314 (1958); NLRB v. Adhesive Prod. Corp., 258 F.2d 403 (2d Cir. 1958); Great Lakes Airlines v. CAB, 291 F.2d 354, 364 (9th Cir.), cert. denied, 368 U.S. 890, 82 S.Ct. 143, 7 L.Ed.2d 89 (1961), which Moore itself recognizes.47 Cf. Greene v. McElroy......
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
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