Western Air Lines, Inc. v. Civil Aeronautics Board
Western Air Lines, Inc. v. Civil Aeronautics Board
Opinion of the Court
The Board by its Order E-16285, adopted December 7, 1960, contemplated additional air service between Hawaii and California. Amendments to Western Air Lines route 13 redesignated San Diego as an intermediate point and added Honolulu as a terminal point. Further changes in Western’s route 35 added Honolulu as a terminal point to that route. Nearly three years later, the Board terminated its Transpacific Route Case, proceedings by Order E-20178, served November 8, 1963, and thereafter denied Western’s motion for reconsideration. Western has sought review, contending in essence that the Board’s action was arbitrary and capricious in that the Board acted in 1963 without findings and without revoking its 1960 findings. Western argues that the
Pursuant to Presidential request in February 1959, the Board in its Transpacific Route Case initiated an examination of air service needs of the entire Pacific area. The scope of the inquiry included problems as to air service between the mainland of the United States and Hawaii, then a Territory, and between the mainland and other points in the Far East. When Hawaii became a State in August, 1959, services between the mainland and Hawaii became interstate air transportation within the meaning of section 101(21) (a) of the Federal Aviation Act of 1958.
The Board’s opinions and orders were not served upon the parties until January 19,1961. The previous day, the President, as he was authorized to do by section 801 of the Act,
Faced with Presidential disapproval of the international phase, the Board stayed its December, 1960 decision which as noted had favored certification of Western to accomplish air transportation between California and Hawaii.
Various subsequent proceedings engaged the attention of the Board,
The Board’s supplemental opinion and order No. E-20178 recited that oral argument covering the reconsideration aspects of both the international and the domestic phases had been heard by the Board. Its conclusion as to the mainland-Hawaii phase was said to have been based upon the proposition that both the domestic and the international issues were “intimately intertwined.” The Board asserted
“that a decision attempting to determine the purely domestic issues without regard to the international requirements of Hawaiian service*781 could do serious damage to the freedom of the Board and the President in establishing a balanced and effective international route pattern in the Pacific, and conversely, that the sound development of a coordinated pattern of domestic services between the mainland and Hawaii cannot be accomplished without a full assurance as to what the transpacific route structure will ultimately be. * * * We are fully aware that, Hawaii having become a State, the Board under the Act has plenary jurisdiction to determine the mainland-Hawaii route pattern and that the President’s comments in his January 18,1961 memorandum respecting the Board’s domestic decision are not binding upon the Board. However, we believe that it would not be an act of sound judgment and discretion on our part to exercise this jurisdiction at this time, not knowing what the next reexamination of the Pacific area route complex will produce.”
Thus it was that the Board “terminated” the domestic phase of its Pacific area study notwithstanding its realization that there was not to be “an updating of the record in the international phase within the next several years.”
There were no findings in derogation of the Board’s findings and conclusions set forth in its December, 1960 Domestic Decision and Order No. E-16285 that the public interest, convenience and necessity as to Hawaii and the California gateways then required the certification of the California-Hawaii routes.
On the record material before us as stipulated by the parties, it would seem beyond question that the public need for additional air transportation between California and Hawaii was overwhelmingly established in the proceedings concluded in 1960. In that respect it is reasonable to deduce that the public interest has been allowed to suffer and may have become intensified
Again, if the earlier order providing for the issuance of certificates to Western had actually become effective, we would have had a very different situation.
Our study has convinced us that the Board’s unanimous 1960 conclusion that mainland-Hawaii service was required by the public convenience and necessity
We have been shown no acceptable basis upon which the Board here purported summarily to “terminate” so important a proceeding which lies squarely within its jurisdiction. Certainly the mere “hope” of the President or his advisers is no predicate for the Board’s arbitrary refusal to act on the “Domestic” phase. Assuredly the Board had defined no administrative standards
“The Board shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation prop*783 erly * *■ * and that such transportation is required by the public convenience and necessity; otherwise such application shall be denied.”16 (Emphasis supplied.)
The mandatory
We reverse that portion of the Board’s order which reads:
“2. That the mainland-Hawaii phase of this proceeding be and it hereby is terminated.”
We remand the case to the Board so that it will exercise the jurisdiction so clearly required of it with respect to the “Domestic” phase and make its determinations
(1) If the Board shall decide (a) that the present record has established that a public interest need for mainland-Hawaii air transportation still exists irrespective of international route considerations, the Board will next determine (b) whether or not Western is pres*784 ently “fit, willing, and able to perform such transportation properly.”
(2) If the Board shall decide that mainland-Hawaii service can not be authorized because of international air transportation requirements, it will make its determination properly derived from and supported by facts either from the record already amassed or by such supplemental record as may be required to establish an adequate basis for the Board’s conclusion and for review by this court.
(3) In its compliance with any of the foregoing directives the Board is free to reopen the present record and to supplement the same to the extent necessary to establish an adequate basis for its ultimate conclusions.20
(4) The Board will within 60 days submit its supplemental record to this court which meanwhile will retain jurisdiction.21
Remanded.
. 72 Stat. 738, 49 U.S.C. § 1301(21) (a) (1958).
. 72 Stat. 782, 49 U.S.C. § 1461 (1958).
. After member Bragdon’s term had expired, affirmative action at various stages was deemed to have failed because of an equal division between the remaining four members.
. Member Murphy broke the existing tie and voted for this action. Although Western contends otherwise, we think he was entitled to vote. United Air Lines, Inc. v. C.A.B., 108 U.S.App.D.C. 220, 223, 281 F.2d 53, 56 (1960). Apparently unchallenged before the Board, the minutes of June 28, 1963, disclose that Vice Chairman Murphy “had familiarized himself with the record and was qualified and prepared to vote on the issues in the case.”
. See the Board’s comprehensive opinion, 32 C.A.B. 928 (1961).
. Civil Aero. Bd. v. State Airlines, 338 U.S. 572, 578, 70 S.Ct. 379, 94 L.Ed. 353 (1950).
. Id. at 581, 70 S.Ct. 379. In view of our disposition of the Western Air Lines petition, we do not deal separately with the petition in our case No. 18313 filed by the City of of San Diego which with respect to the public interest aspect had argued- that “San Diego was the only major metropolitan area on the west coast without direct air service to any point in the Pacific, including the State of Hawaii.” San Diego further pointed out that the Board’s original decision had noted that Western was willing and eager to offer its services and “would have ample backup traffic to support the services.” The San Diego argument before the Board continues: “Nothing has happened since December 7, 1960 to change this statement as found in your order except one thing: The traffic that would support the service has shown a significant increase.”
. Compare Minneapolis Gas Co. v. Federal Power Com’n, 111 U.S.App.D.C. 16, 294 F.2d 212 (1961). Here the expense to the participants is said to have run into millions with hearings over several months, requiring a transcript of some 9,000 pages and more than 1,000 pages of exhibits and briefs. As of December 7, 1960, there were some seven air lines concerned with the Domestic Phase of the proceedings as well as many cities such as San Diego.
. See note 8 supra.
. Supra note 6. We had reversed the Board’s order certifying Piedmont but concluded we had no authority to order the Board to certify State Airlines. State Airlines v. Civil Aeronautics Board, 84 U.S.App.D.C. 374, 174 F.2d 510 (1949). Western has here contended we should now order the Board to issue appropriate certificates to permit Western to fly at least the San Diego-Honolulu route.
. See Civil Aero. Bd. v. Delta Air Lines, 367 U.S. 316, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961).
. 75 Stat. 497, 49 U.S.C. § 1486(d) (Supp. V, 1964).
. 72 Stat. 755, 49 U.S.C. § 1371(d) (1) (1958).
. See Friendly (Circuit Judge, Henry J.), The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv.L.Rev. 863, 881, 1072 et seq. (1962).
. Civil Aero. Bd. v. State Airlines, supra note 6, 338 U.S. at 577, 70 S.Ct. at 382.
. § 401(d) (1) of the Act, 72 Stat. 755, 49 U.S.C. § 1371(d) (1) (1958). In light of this statutory command the Board should not be “allowed to improvise on the powers granted by Congress in order to preserve administrative flexibility.” Civil Aero. Bd. v. Delta Air Lines, supra note 11, 367 U.S. at 330, 81 S.Ct. at 1621.
. On the other hand, when Congress intended that the Board’s action be discretionary it was careful to say, not “shall,” but “may”:
“In the case of an application for a certificate to engage in temporary air transportation, the Board may issue a certificate authorizing the whole or any part thereof for such limited periods as may be required by the public convenience and necessity * * (Emphasis supplied.) 72 Stat. 755, 49 U.S.C. § 1371(d) (2) (1958).
And see State Airlines v. Civil Aeronautics Board, 84 U.S.App.D.C. 374, 380, 174 F.2d 510, 516 (1949), reversed on other grounds, 338 U.S. 572, 70 S.Ct. 379, 94 L.Ed. 353 (1950).
. Securities and Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). As Mr. Justice Frankfurter there pointed out, we would not set aside Board action because we might have made a different determination had we been empowered to do so. Western, for example, had asked for the issuance of a certificate for air transportation at the very least between San Diego and Hawaii. We think we may not so order, even though the Board had explicitly found that “San Diego passengers bound for Hawaii must use a circuitous, inconvenient connecting service at Los Angeles or San Francisco, [and] Western would be able to provide San Diego with first nonstop service to Honolulu.”
. “The record shall show the ruling upon each such finding, conclusion, or exception presented. All decisions * * * shall become a part of the record and include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record; and (2) the appropriate rule, order, sanction, relief, or denial thereof.” (Emphasis added.) 60 Stat. 242, 5 U.S.C. § 1007(b) (1965).
. Ibid.; cf. North Central Airlines, Inc. v. Civil Aeronautics Bd., 105 U.S.App.D.C. 207, 210-211, 265 F.2d 581, 584-585, cert. denied, 360 U.S. 903, 79 S.Ct. 1285, 3 L.Ed.2d 1259 (1959); Saginaw Broadcasting Co. v. Federal C. Com’n, 68 App.D.C. 282, 287, 96 F.2d 554, 559, cert. denied, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391 (1938).
. Northeast Airlines, Inc. v. C.A.B., 331 F.2d 579, 589 (1 Cir. 1964).
Concurring Opinion
(concurring) :
In its 1960 proceeding the Board found that a third airline service was needed between California and Hawaii, and authorized Western Airlines. This determination was based principally on a finding that the two carriers operating on this route were overloaded. The finding of a need for the new service did not rely on the international Pacific routes authorized by the Board at the same time in another order.
The proposed international routes were disapproved by the President. The Board-thereupon suspended Western’s authorization. In 1968 the Board terminated the domestic proceeding concerning the California-Hawaii route, in effect denying Western’s application. It seems to me that the reason given by the Board — that this route should not be treated separately from the international Pacific routes — - would be sufficient to justify its action if it were supported on the record. However, the Board’s conclusion has no such support. Cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). There was no testimony setting forth the disadvantages that allocation of the domestic route at this time would cause when the international routes are considered. Thus, we cannot sustain the Commission’s conclusion that these disadvantages outweigh the advantages to the public found in 1960 after full hearings to flow from the grant of authorization to Western. I concur in the remand for further findings on this matter. The Commission’s Supplemental Opinion of November 8, 1963, stated its “intention to undertake a reexamination of the transpacific route pattern at a suitable time in the near future.” Perhaps this will be a suitable occasion to reconsider the whole issue.
Reference
- Full Case Name
- WESTERN AIR LINES, INC. v. CIVIL AERONAUTICS BOARD, United Air Lines, Inc., City of Kansas City, Missouri, Continental Air Lines, Inc., Northwest Airlines, Inc., Pan American World Airways, Inc., Intervenors The CITY OF SAN DIEGO, San Diego Unified Port District, and San Diego Chamber of Commerce v. CIVIL AERONAUTICS BOARD, United Air Lines, Inc., Northwest Airlines, Inc., Pan American World Airways, Inc., Intervenors
- Cited By
- 1 case
- Status
- Published