United Air Lines, Inc. v. CAB

• Decision Date: 11 October 1962
• Docket Number: No. 15414,15415.,15414
• Citation: 309 F.2d 238
• Parties: UNITED AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, American Airlines, Inc., City and County of San Francisco, Intervenors. TRANS WORLD AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, American Airlines, Inc., City and County of San Francisco, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

309 F.2d 238 (1962)

UNITED AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, American Airlines, Inc., City and County of San Francisco, Intervenors.

TRANS WORLD AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, American Airlines, Inc., City and County of San Francisco, Intervenors.

Nos. 15414, 15415.

United States Court of Appeals District of Columbia Circuit.

Argued September 17, 1962.

Decided October 11, 1962.

Mr. H. Templeton Brown, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Messrs. Robert L. Stern, Chicago, Ill., and James Francis Reilly, Washington, D. C., were on the brief, for petitioner in No. 15,414.

Mr. James K. Crimmins, New York City, with whom Messrs. Joseph M. Paul, Jr., New York City, and Warren E. Baker, Washington, D. C., were on the brief, for petitioner in No. 15,415.

Mr. O. D. Ozment, Associate General Counsel, Litigation and Research, Civil Aeronautics Board, with whom Messrs. John H. Wanner, General Counsel, Joseph B. Goldman, Deputy General Counsel, Arthur R. Schor and William F. Becker, Attorneys, Civil Aeronautics Board, were on the brief, for respondent.

Mr. Howard C. Westwood, Washington, D. C., with whom Mr. William H. Allen, Washington, D. C., was on the brief, for intervenor American Airlines, Inc. Messrs. John W. Douglas and Edwin H. Seeger also entered appearances for intervenor American Airlines, Inc.

Mr. William F. Bourne, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, with whom Mr. Thomas M. O'Connor, San Francisco, Cal., was on the brief, for intervenor City and County of San Francisco.

Mr. Lionel Kestenbaum, Attorney, Department of Justice, was on the memorandum filed in behalf of the United States as amicus curiæ.

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

BASTIAN, Circuit Judge.

On May 19, 1960, this court agreed with the order of the Civil Aeronautics Board awarding New York-San Francisco non-stop service to American Airlines, Inc. intervenor, but remanded the cases to the Board "for the limited purpose of holding a hearing to determine, with all convenient speed, the relevant facts on the question of whether the Board's rules were so violated as to require a setting aside of the order." United Air Lines, Inc. v. C. A. B., 108 U.S.App.D.C. 220, 225, 281 F.2d 53, 58 (1960). The order of remand reads, in pertinent part, as follows:

"On consideration whereof, and for the reasons indicated in our opinion this day filed herein, it is ordered by this court:

"(1) that these cases are hereby remanded to the Civil Aeronautics Board for the limited purpose of holding a hearing to determine, with all convenient speed, the relevant facts on the question of whether the Board\'s rules were so violated as to require a setting aside of the order on review;

"(2) that all parties to these cases before the Board shall be admitted to participate as parties in the hearing, if they so request, and that any person or persons concerning whom evidence may be received in such hearing, shall, upon request, be permitted to cross-examine and to submit rebuttal testimony;

"(3) that the Board is instructed to notify the Attorney General of the United States of the scheduling and pendency of the hearing and the purpose thereof; and to permit him, or his designated representative, if he so moves, to participate in the hearing as amicus curiæ

"(4) that on the conclusion of the hearing the Board shall make its findings and report to this court and shall submit therewith to this court a certified transcript of the hearing."

United Air Lines, Inc. and Trans World Airlines, Inc. petitioners herein had claimed that there were ex parte communications and attempts to bring influence to bear on the Board. The record then before us contained findings by the Board that some violations had in fact occurred. The Department of Justice, amicus curiae, had also requested remand. (See note 6, infra.)

The Board duly followed the instructions of this court and reopened the proceedings before a new examiner. Many pages of testimony were taken. All prior parties were deemed parties, and the Board's Bureau of Enforcement was substituted for the Bureau Counsel. The examiner, in his initial decision, reviewed in great detail the evidence adduced at the reopened hearings and found that neither American nor the City and County of San Francisco had violated the Board's Rules of Practice in Economic Proceedings¹ but that both American and the City and County of San Francisco had violated the Board's Principles of Practice.² The examiner found that these latter violations did not deny a fair hearing to petitioners herein and concluded "that the Board recommend to the Court that this reopened inquiry be terminated and that the charges brought by TWA and United against American, San Francisco and other parties to the proceedings * * * be dismissed." He further recommended that the Board institute new rule-making proceedings to consider additional proposed amendments of a clarifying nature to Part 300, the Board's Rules of Practice in Economic Proceedings, and Part 300, the Board's Principles of Practice.³

On exceptions by TWA, United and Northwest Airlines (the other applicant for the New York-San Francisco service) the Board agreed with the findings and conclusions of the examiner, with certain exceptions, and issued its comprehensive opinion, in which all members of the Board concurred one member, in addition filing a further and concurring opinion, making the following findings:

"1. That no party to the proceeding under Docket 9214 et al., violated any of the provisions of Part 302 of the Board\'s Procedural Regulations, commonly known as the Rules of Practice in Economic Proceedings;

"2. That the Port of New York Authority, the Port of Oakland and the Oakland Chamber of Commerce, and the San Francisco Chamber of Commerce did not at any time during the proceedings under Docket 9214 et al., violate Part 300 of the Board\'s Procedural Regulations, commonly known as the Principles of Practice of the Civil Aeronautics Board;

"3. That American Airlines, Inc., violated Rule 2(c) of the Principles of Practice and the City and County of San Francisco violated Rule 2(a) and 2(c) of the Principles of Practice and that in committing such violations each acted individually and on its own, except that both acted in concert with respect to their activities leading to the conference with the Board on December 2, 1957, which violated Rule 2(c);

"4. That the violations of the Principles of Practice by American and San Francisco did not result in

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