Western Air Lines v. Civil Aeronautics Board, 12867.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: BONE, ORR and POPE, Circuit
• Citation: Western Air Lines v. Civil Aeronautics Board, 190 F.2d 340 (9th Cir. 1951)
• Decision Date: 25 May 1951
• Docket Number: No. 12867.,12867.
• Parties: WESTERN AIR LINES, Inc. v. CIVIL AERONAUTICS BOARD.

190 F.2d 340 (1951)

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

No. 12867.

United States Court of Appeals Ninth Circuit.

May 25, 1951.

Guthrie, Darling & Shattuck, Los Angeles, Cal., for petitioner.

Emory T. Nunneley, Jr., Gen. Counsel, Civil Aeronautics Board, Warren L. Sharfman, Atty., Civil Aeronautics Board, J. Roger Wollenberg, Atty., Dept of Justice, Washington, D. C., for respondent Civil Aeronautics Board.

John E. Lynch, San Francisco, Cal., Edward J. Hickey, Jr., Richard J. Flynn, Washington, D. C. (Mulholland, Robie & Hickey, Washington, D. C., of counsel), for respondent Brotherhood of Ry. & S. S. Clerks, etc.

Before BONE, ORR and POPE, Circuit Judges.

POPE, Circuit Judge.

On April 23, 1951, this court made an order upon the motion of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, for leave to intervene herein. In that order the court noted that the Brotherhood was permitted to intervene and become a party to the proceedings before the Board, and found that the Brotherhood is a party and is entitled to be heard in this court upon the pending petition for a review of the Board's proceedings. Accordingly, the motion for leave to intervene was denied as unnecessary.

It has now been suggested that although neither the petitioner nor the Board has interposed any objection to the Brotherhood being heard in this court or in these proceedings, yet the Board is fearful lest the form in which the court's order was made should be taken to establish as a rule of procedure that anyone permitted to intervene in a similar proceeding before the Board, would by virtue of that fact necessarily be entitled to recognition as a party to any proceeding to review an order issued by the Board, and even be deemed entitled to petition for review.

Necessarily the court's previous order had reference solely to the facts of this particular matter in which it was apparent that the Brotherhood had a substantial interest in the order here under review. The order of this court was made in the light of that fact and was not intended to establish a rule of practice or procedure in subsequent matters in this court.

We think that the suggestion that it would have been better to grant the Brotherhood's motion to intervene involves a mere question of appropriate nomenclature. Ordinarily intervention in a proceeding is sought only by one who has not theretofore been a party. "An `intervention' is a proceeding by one not theretofore a party." Ex parte Green, 221 Ala. 415, 129 So. 69, 71. For this reason intervention in an appellate court is inappropriate. Wenborne-Karpen Dryer Co. v. Cutler Dry Kiln Co., 2 Cir., 292 F. 861; The William Bagaley, 5 Wall. 377, 411-412, 18 L.Ed. 583.

Because the proceedings before us are limited to a review of the action of the Board, we...