Western Air Lines v. Civil Aeronautics Board

• Citation: 184 F.2d 545
• Decision Date: 28 September 1950
• Docket Number: 635.,No. 12,12
• Parties: WESTERN AIR LINES, Inc., v. CIVIL AERONAUTICS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

184 F.2d 545 (1950)

WESTERN AIR LINES, Inc., v. CIVIL AERONAUTICS BOARD.

No. 12,635.

United States Court of Appeals Ninth Circuit.

September 28, 1950.

Hugh W. Darling, George G. Gute, Los Angeles, Cal. (Guthrie, Darling & Shattuck, Los Angeles, Cal., of counsel), for petitioner.

Herbert A. Bergson, Asst. Atty. Gen., John H. Wanner, Associate General Counsel, Civil Aeronautics Board, J. Roger Wollenberg, Attorney, Dept. of Justice, Joseph B. Goldman, Chief Certificate & Permits Div. C. A. B., all of Washington, D. C., for respondent.

G. Robert Henry, Washington, D. C., Sheldon G. Cooper, San Francisco, Cal., for Intervenors, Southwest Airways Co. and West Coast Airlines.

Before STEPHENS, Circuit Judge, and BOWEN, Chief Judge, and LEMMON, District Judges.

STEPHENS, Circuit Judge.

The Civil Aeronautics Board, respondent, has pending before it certain matters which it had heretofore set for hearings at different times. Petitioner here, Western Air Lines, Inc., petitioned the Board to consolidate them into one hearing, and the Board denied the petition.¹

We are asked to review the Board's order denying consolidation and to stay all administrative proceedings in such matters pending this court's order on review.² We ordered the Board to show cause why the stay order should not issue. The Board opposes the stay of its hearings on the ground that a good cause therefor is not alleged in the petition. Southwest Airways Company and West Coast Air Lines, Inc., are interveners and oppose the stay on the same ground.

At a hearing before this court upon the application for the stay order, the parties filed written statements, full oral argument was had, and permission was granted to file, and they have filed, further statements. Upon suggestion of the court the Board has postponed hearings scheduled for August 21, 28, and 30, 1950, pending decision on the stay application.

The basic question is whether, taking the petition as correctly stating the case, petitioner has been denied a legal right.

Western Air Lines, Inc., is a trunkline or long-haul type of operating domestic air carrier. Southwest Airways Company and West Coast Air Lines, Inc., are representative of the local feeder or short-haul, non-trunkline type of operating domestic air carrier. (For sake of brevity we refer herein to these companies as "Western", "Southwest", and "West Coast", respectively.)

In the post-World War II development of commercial aviation the government through the Civil Aeronautics Board has sponsored, directed, and supervised a vast experiment in the exploitation of short-haul air transportation throughout the nation by means of the grant to independent non-trunkline carriers of temporary certificates of public convenience and necessity. Southwest was certificated in 1946 to operate for a term of three years expiring November 22, 1949, local feeder route No. 76 extending from Los Angeles, California, to Medford, Oregon. West Coast was certificated to operate for an identical period local feeder route No. 77 extending from Medford, Oregon, to Bellingham, Washington. See West Coast Case, 6 C.A.B. 961 (1946). Two of the matters with which we are here concerned concern the renewal³ of such route authorizations (Docket Nos. 3718 et al.⁴ and 3966 et al.⁵)

In all, Western asked the Board to consolidate for hearing and disposition seven cases, pending before the Board at various stages of the administrative process. The Board has decided none of these cases. They concern five route authorizations (we have mentioned two above; the others are Docket Nos. 2019 et al.,⁶ 4447,⁷ and 4448⁸), the approval of a merger of air carriers (Docket No. 4405⁹) and the approval of the acquisition of a controlling stock interest by one air carrier in another (Docket No. 4449¹⁰). It is conceded that all seven matters are interrelated to a varying extent, and that cases Nos. 3718, et al., 3996 et al., 4447 and 4448 present mutually exclusive issues. In each, Western is either a party applicant or an intervener.

In its order denying consolidation, the Board found consolidation of Docket No. 2019 et al. "with Docket Nos. 3718 et al., 3966 et al., or 4405, would unduly expand the scope of the issues in each of said proceedings and unduly delay the disposition thereof; that deferral of said proceedings would unduly delay the disposition thereof" and "that consolidation of Docket Nos. 4447, 4448 and 4449 with Docket Nos. 3718 et al., and 3996 et al., or Docket No. 4405, would unduly expand the issues in such proceedings, unduly delay the disposition thereof, and is not conducive to the proper dispatch of the Board's business." It also found that Docket Nos. 3718 et al., 3996 et al., and 4405 were "in certain respects interrelated to such an extent that it may prove advantageous and consistent with orderly procedure for the Board to decide the three cases simultaneously." Docket No. 3718 et al. was ordered "reopened", and Docket No. 3996 et al. "reconvened", for further hearing with respect to "the effect, if any, upon the substitution-suspension issues in said proceedings see footnotes 4 and 5 ante of the proposed merger of Southwest and West Coast" and it was expressly found that "any delay in the disposition of the renewal proceedings that may result from the action herein taken will not prejudice the carries" see footnote 3, ante.

Congress has provided that "any person disclosing a substantial interest in" "any order * * * issued by the Board" may petition for a review of such order. 49 U.S.C.A. § 646(a). Respondent Board and the interveners herein not too forcibly urge that the complained of order denying consolidation is an interlocutory order and not a final order of which we can take hold. We do not doubt but that this court lacks jurisdiction to review an interlocutory order of the Board. As the Supreme Court puts it, "administrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process." Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 1948, 333 U.S. 103, 112, 113, 68 S.Ct. 431, 437, 92 L.Ed. 586. Such, we believe, is the purport of requiring the petitioner to disclose a "substantial interest" in the challenged order.¹¹ The Federal Communications Commission v. WJR The Goodwill Station, Inc., 1949, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353; Pan American Airways Co. v. Civil Aeronautics Board, 2 Cir., 1941, 121 F.2d 810; Seaboard & Western Airlines, Inc. v. Civil Aeronautics Board, D.C.Cir., 1949, 181 F.2d 777.

In effect, petitioner is asking us to superintend the manner in which the Board calls its business. It is the Board's duty under the Civil Aeronautics Act to ascertain, promote, and protect the public interest, as to which the Board is the "final arbiter". United Air Lines, Inc. v. Civil Aeronautics Board, 1946, 88 U.S.App.D.C. 89, 155 F.2d 169, 173. Private litigants before the Board are "primarily vindicating the public, not a private, interest." W. R. Grace & Co. v. Civil Aeronautics Board, 2 Cir., 1946, 154 F.2d 271, 287. It would be strange indeed if we were enabled to oversee the administrative docket. The Board is an informed body and must necessarily have the widest latitude in the matter of how it goes about determining the public interest in what it believes to be the proper dispatch of the business before it. "Necessarily, therefore, the subordinate questions of procedure in ascertaining the public interest, when the Commission's licensing authority is invoked — the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another's proceedings, and similar questions — were explicitly and by implication left to the Commission's own devising, so long, of course, as it observes the basic requirements designed for the protection of private as well as public interest." Federal Communications Commission v. Pottsville Broadcasting Co., 1940, 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656. See, also, Federal Communications Commission v. WJR, The Goodwill Station, Inc., supra, 337 U.S. 272, 69 S.Ct. 1097.

Western, however, asserts that the Board's denial of consolidation in the circumstances here runs afoul of the rule announced by the Supreme Court in the case of Ashbacker Radio Corp. v. Federal Communications Commission, 1945, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108. There, Fetzer Broadcasting Company filed an application for a permit to construct a broadcasting station. Before that application was acted upon, Ashbacker Radio Corporation filed a competing application. It was conceded by the Commission that the applications were for a facility which could be granted only to one. Notwithstanding the Commission granted the Fetzer application without hearing the Ashbacker application. On the same day it set the latter application for hearing. Congress had provided in the governing act that applicants were entitled to a hearing before their applications were denied. The Supreme Court held that even though "the Fetzer license, like any other license granted by the Commission, was subject to certain conditions which the Act imposes as a matter of law" and hence was not technically conclusive of the Ashbacker application, "the statutory right of petitioner to a hearing on its application * * * which was in form * * * preserved, * * * has as a practical matter been substantially nullified by the grant of the Fetzer application." The holding was epitomized in the following language: "* * * where two bona fide applications are mutually exclusive the grant of one without a hearing to both deprives the loser of the opportunity which Congress chose to give him." Ashbacker Radio Corp. v. Federal Communications Commission, supra, 326 U.S. 331, 333, 334, 66 S.Ct. 150.

We are called upon to interpret the Ashbacker ruling as...