GREENSBORO-HIGH POINT AIR. A. v. Civil Aeronautics Bd., 12608.

• Decision Date: 22 March 1956
• Docket Number: No. 12608.,12608.
• Citation: 231 F.2d 517,97 US App. DC 358
• Parties: GREENSBORO-HIGH POINT AIRPORT AUTHORITY, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Eastern Air Lines, Inc., and Piedmont Aviation, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

97 US App. DC 358, 231 F.2d 517 (1956)

GREENSBORO-HIGH POINT AIRPORT AUTHORITY, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent Eastern Air Lines, Inc., and Piedmont Aviation, Inc., Intervenors.

No. 12608.

United States Court of Appeals District of Columbia Circuit.

Argued October 11, 1955.

Decided March 22, 1956.

Mr. Albert F. Beitel, Washington, D. C., for petitioner.

Mr. Gerald F. Krassa, Atty., Civil Aeronautics Board, with whom Messrs. Franklin M. Stone, Gen. Counsel, Civil Aeronautics Board, John H. Wanner, Associate Gen. Counsel, Civil Aeronautics Board, and O. D. Ozment, Chief, Litigation and Research Division, Civil Aeronautics Board, were on the brief, for respondent.

Mr. Charles H. Weston, Atty., Dept. of Justice, also entered an appearance for respondent.

Mr. W. Glen Harlan, Atlanta, Ga., with whom Mr. E. Smythe Gambrell, Atlanta, Ga., was on the brief, for intervenor Eastern Air Lines, Inc.

Mr. Llewellyn C. Thomas, Washington, D. C., also entered an appearance for intervenor Eastern Air Lines, Inc.

Messrs. Cecil A. Beasley, Jr., Eugene B. Thomas, Jr., and Dyer J. Taylor, Washington, D. C., entered appearances for intervenor Piedmont Aviation, Inc.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and WASHINGTON, Circuit Judges.

WASHINGTON, Circuit Judge.

This is a petition to review two orders of the Civil Aeronautics Board. The petitioner airport authority alleges that it was not accorded a fair hearing; that the Board's findings were inadequate; and that the Board's orders unfairly discriminated against it.

On December 11, 1953, the Civil Aeronautics Board gave public notice of a proposed hearing, the pertinent portion of the notice reading as follows:

"Without limiting the scope of the issues involved in this proceeding, particular attention will be directed to the following matters and questions:

"1. Whether the public convenience and necessity require air transport service between Charleston, W. Va., and Columbus, Ohio, and whether the certificates of public convenience and necessity held by Eastern Air Lines, Inc., and/or Piedmont Aviation, Inc., and/or Lake Central Airlines, Inc., should be amended so as to authorize such service.

"2. Whether one or more of the following route revisions should be authorized in connection with providing air transport service between Charleston, W. Va., and Columbus, Ohio:

"(a) Amendment of Eastern\'s route No. 6 so as to add thereto Columbus and Toledo, Ohio, as intermediate points between Charleston, W. Va., and Detroit, Mich., as proposed by said carrier in its application in Docket No. 4096.

"(b) Amendment of Piedmont\'s route No. 87 so as to extend said route from Charleston, W. Va., to Columbus, Ohio, via the intermediate point Parkersburg, W. Va.-Marietta, Ohio, as proposed by said carrier in its application in Docket No. 6347.

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"3. Whether the applicants are fit, willing and able properly to perform the proposed air transportation and to conform to the provisions of the Act and the rules, regulations and requirements of the Board thereunder."

A number of cities in the eastern half of the United States moved to intervene in the proceedings: some of these applications were granted and some denied. The petitioner now before us, the Greensboro-High Point Airport Authority of North Carolina ("Greensboro"), did not at this time move to intervene. Hearings were held, and at their conclusion the trial examiner rendered an initial decision awarding to Eastern Air Lines a new route-segment extending from Charlotte, North Carolina, to Detroit via Columbus and Toledo, and awarding to Piedmont Aviation a route-extension running from Charleston, West Virginia, to Columbus. At this point Greensboro requested the Board for leave to intervene, saying in part:

"The instant case involves an application by Eastern Air Lines (Eastern) to amend its route No. 6 to authorize service to Charleston, W. Va. and Columbus, Ohio, and an application by Piedmont Aviation to extend its route No. 87 from Charleston, W. Va. to Parkersburg, W. Va. and Columbus, Ohio. If granted, such applications would provide new and additional air service at Greensboro-High Point.

"Petitioner has an interest in the manner and extent to which the operations proposed in this proceeding will affect existing services and schedules pertaining to petitioner.

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"To permit petitioner to intervene will not unduly broaden the issues or delay the proceeding, but on the contrary should be advantageous to the Board by giving the Board an opportunity to hear the case of Greensboro-High Point on the issue of public interest.

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"Instead of finding that Eastern\'s application should be granted in order to provide a needed service, the Examiner has recommended that route No. 6 be split at Charlotte and that Eastern provide service to Columbus and Toledo, Ohio and Detroit, Mich. direct from Charlotte, N. C., instead of from Charleston, W. Va. (Initial Decision, p. 60) This attempt to split Eastern\'s route No. 6 at Charlotte has serious economic implications for Greensboro-High Point. Eastern has already made Charlotte an important transfer point on its routes and operates more and better schedules through Charlotte than through Greensboro-High Point. The quality and quantity of air service provided at Charlotte, as compared with that provided at Greensboro-High Point, results in discrimination against Greensboro-High Point. Such discrimination is expressly forbidden by Sec. 404 of the Civil Aeronautics Act 49 U.S.C.A. § 484.

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"The total air traffic of record¹ between Toledo and Charlotte amounted to 105 passengers; between Toledo and Greensboro-High Point and the neighboring city of Winston-Salem, the traffic amounted to 128 passengers. There were 212 passengers between Charlotte and Columbus, compared to 240 between Columbus and Greensboro-High Point and Winston-Salem during the same period.

"In his initial decision, the Examiner failed to consider any of this data, and did not discuss the effect of splitting route No. 6. The Greensboro - High Point - Winston - Salem area is economically a more important area in North Carolina than the Charlotte area; but the Examiner fails to consider this fact in his decision."

The Board granted leave to intervene and allowed Greensboro to argue its case. In due course thereafter the Board approved the substance of the examiner's report and granted appropriate certificates to Eastern and Piedmont. Greensboro then filed a request for reconsideration and a rehearing, alleging, among other things, that the Board did not give proper notice to Greensboro, that its decision did not contain findings to support the rejection of Greensboro's arguments and that the Board's decision discriminated against Greensboro. It asked the Board to split Eastern's route at Greensboro, or at a point north thereof, rather than at Charlotte. In the alternative, if that relief were denied, Greensboro asked that the Board reopen the record "for the purpose of hearing petitioner upon the issues raised in this petition."

The Board denied Greensboro's petition for reconsideration, stating:

"Apart from certain charges of legal error, the petition of the Greensboro-High Point Airport Authority is repetitious of matters previously advanced to the Board, and rejected by the Board\'s original decision. The petition does not demonstrate any error by the Board in this regard. Nor does it establish any legal deficiency in the Board\'s procedure. Although the petition claims inadequate notice of the issues, and inadequate findings to support the Board\'s decision, we find no merit in these contentions. Insofar as petitioner seeks further hearing, there is no satisfactory showing as to what facts would be adduced to amplify the record in any material respect."

Greensboro now petitions this court for review of the Commission's orders.¹ Its contentions here are that (1) it was denied a fair hearing because it was not given adequate notice and because the Board failed to reopen the record, and (2) the Board failed to make adequate findings showing the reasons for its rejection of Greensboro's contentions.

The Board argues that Greensboro did in fact receive adequate notice of the proposed hearings. It says that the action recommended by the examiner and adopted by the Board was one of the possible solutions to the transportation problem outlined in the notice of hearing and that Greensboro should have recognized this. The intervenor Eastern also argues that the route between Columbus and Charlotte was one of the routes impliedly requested in Eastern's original petition for additional service, and that by selecting that route and granting it to Eastern the Board in fact gave Eastern only a portion of the relief it had originally asked for. Accordingly, it says, this was within the scope of the notice of hearing actually issued.

We need not pass upon these contentions because we think that in view of all the circumstances Greensboro is not in a position to challenge the notice of hearing. When the examiner's initial decision was announced Greensboro had ample notice from its terms of the effect of the proposed action. At that stage it could have moved for a reopening of the hearings so as to permit it to put in evidence. It did not do so. Instead, it merely asked leave to intervene, and in fact advised the Board that permission to intervene "will not unduly broaden the issues or delay the proceeding." The Board granted the petition and Greensboro presented its arguments orally. In doing so, however, it did not allege any lack of notice or ask leave to present additional evidence....