United Air Lines, Inc. v. CAB, 15414

• Citation: 281 F.2d 53
• Decision Date: 19 May 1960
• Docket Number: No. 15414,15415.,15414
• 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: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

281 F.2d 53 (1960)

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 March 22, 1960.

Decided May 19, 1960.

Mr. H. Templeton Brown, of the bar of the Supreme Court of Illinois, Chicago, Ill., 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 Mr. Warren E. Baker, Washington, D. C., was on the brief, for petitioner in No. 15,415.

Mr. O. D. Ozment, Associate Gen. Counsel, Litigation and Research, Civil Aeronautics Board, with whom Messrs. Franklin M. Stone, Gen. Counsel, Civil Aeronautics Board, John H. Wanner, Deputy Gen. Counsel, Civil Aeronautics Board, Ulrich V. Hoffmann, Atty., Civil Aeronautics Board, and Richard A. Solomon, Atty., Dept. of Justice, were on the brief, for respondent.

Mr. Henry Geller, Atty., Dept. of Justice, also entered and appearance for respondent.

Mr. Howard C. Westwood, Washington, D. C., with whom Messrs. John W. Douglas and Edwin H. Seeger, Washington, D. C., were on the brief, for intervenor American Airlines, Inc.

Mr. Dion R. Holm, of the bar of the Supreme Court of California, San Francisco, Cal., pro hac vice, by special leave of court, for intervenor City and County of San Francisco.

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

BASTIAN, Circuit Judge.

Petitioners, United Air Lines, Inc. (United) and Trans World Airlines, Inc. (TWA), seek review of orders of the Civil Aeronautics Board (the Board) in the so-called New York-San Francisco Nonstop Service case. In that case, the Board amended a certificate of convenience and necessity of American Airlines, Inc. (American) so as to authorize American to operate nonstop airline service between New York and San Francisco. Theretofore nonstop service between those points was limited to United and TWA. Prior to the entry of the order complained of, intervenor American had authority to operate between New York and San Francisco but, under the then authority, was required to make at least one stop at an intermediate point.

The facts leading up to the order complained of are not in material dispute. It appears that, in a so-called West Coast case, American's then transcontinental route was extended from Phoenix, Arizona, to San Francisco and Oakland, California, with the condition that service be rendered to San Francisco only on flights which served Dallas or Tulsa, or some similarly located city. Thereafter, American filed its application for an amendment to its certificate to eliminate this restriction, and it is that application which was finally granted by the Board.

In the Denver Service Case, so-called, American sought unrestricted authority to operate between New York and San Francisco.

On November 14, 1955, the Board denied that request. Thereafter, American moved that the Board expedite that portion of the application which would permit nonstop operation between San Francisco and New York. This motion was denied, but in its order of denial the Board provided:

"In view of the allegations contained in the petition and supporting documents the Board has directed the staff to review the problems of the air service pattern between New York and San Francisco and report the results of that study to the Board on or about December 1, 1957, so that it may examine the public need for an early hearing on the issue of nonstop service."

Shortly after the study had been completed, the Board set the matter down for expedited hearing and, after certain intermediate proceedings hereinafter referred to, the Board, by a divided vote, entered its award granting nonstop rights to American between the points indicated. Petition for reconsideration was duly filed, setting up various procedural as well as basic objections, all of which will be discussed hereinafter. This petition for reconsideration was denied. Whereupon, the present proceedings were instituted.

Motion was made in this court for a stay of the order of the Board but the motion was denied.

Because of our disposition of these proceedings, we believe it would be to the interest of all parties that we dispose of, first, the basic contentions of petitioners, and thereafter the procedural objections raised. If, on the limited remand which is to be ordered, the objections of petitioners are sustained, of course, the entire matter will have to be reopened but, if they are not sustained, either by the Commission or on appeal, the basic issues will have been determined and the case finally disposed of.

We have examined the contention of petitioners that the Board's findings and conclusions are arbitrary and capricious and not supported by substantial evidence in the record as a whole.

We think the Board's findings and conclusions are supported by substantial evidence in the record as a whole and that the testimony before the Board and the examiner forms a proper basis for the conclusions reached by the Board. Argument is made that the examiner refused to reopen the record after the conclusion of evidentiary hearings to receive further evidence said to be then available as to cost of said operations and volume of traffic between the two points involved. The examiner held that there was no showing of substantial change in the matter since the close of the hearing and that, at any rate, the data referred to appeared in the official records before the Board. The examiner's rulings were upheld by the Board, and we see no error.

Petitioners further claim that they were entitled to have produced at the hearing before the examiner the report of the Board's staff in connection with request for expedited hearing. We do not agree with this contention. The study was made simply to assist the Board in determining whether the hearing should be expedited and had no bearing on the merits. Further, the request for production of the study was made at the close of the expedited hearing. As the examiner stated:

"Furthermore, what you are trying to do, you are trying to go back of the Board\'s action that it took originally in assigning this case for hearing.

"As I see it, in this stage of the proceeding, that is of no importance. The Board, acting within its own power under the act, assigned this proceeding for hearing and I fail to see where this is material at this time to the issues here."

There was no claim before the examiner that this study would reveal any data pertinent to the issues involved at the hearing stage. Cf. Deep South Broadcasting Co. v. Federal Com. Comm., 107 U.S.App.D.C. 384, 278 F.2d 264. And cf. North American Airlines v. Civil Aeronautics Bd., 1956, 100 U.S.App.D.C. 5, 12, 240 F.2d 867, 874. The motion for production in the instant case was obviously intended to "probe the mental processes" of the...