The opinion
WILBUR K. MILLER, Circuit Judge
(dissenting in part and concurring in part).
The Civil Aeronautics Board gave notice of a hearing to determine “[wjhether the public convenience and necessity require air transport service between Charleston, W. Va., and Columbus, Ohio * * *"; whether Eastern’s route No. 6 should be amended so as to add thereto Columbus and Toledo, Ohio, as intermediate points between Charleston, West Virginia, and Detroit, Michigan; and whether Piedmont’s route No. 87 should be amended so as to extend it from Charleston, West Virginia, to Columbus, Ohio. Instead of adhering to this notice, the examiner in his initial decision found that public convenience and necessity required amendment of Eastern’s route No. 6 so as to authorize service beyond the intermediate point, Charlotte, North Carolina, to the terminal point, Detroit, Michigan. The effect of this was to split Eastern’s route No. 6 at Charlotte, North Carolina, which is south of Greensboro-High Point and, of course, far south of Charleston, West Virginia. The harmful effect on Greensboro-High Point is apparent.
Upon learning of the initial decision, Greensboro-High Point petitioned for leave to intervene and the privilege was granted. The record had already been made without the participation of Greensboro-High Point, which was granted ten minutes for oral argument. The Board adopted the examiner’s initial decision, whereupon Greensboro-High Point petitioned for reconsideration and for rehearing so that it might introduce evidence as to the discrimination it would suffer because of the order. The Board denied the petition for reconsideration, stating, “[Tjhere is no satisfactory showing as to what facts would be adduced to amplify the record in any material respect.” This seems to me to be an unwarranted statement.
The action of the Board in this case was, in my opinion, a plain violation of §§ 5(a) and 8(b) of the Administrative Procedure Act, 5 U.S.C.A. §§ 1004 (a) and 1007(b). A more complete departure from the notice of hearing would be difficult to imagine. I think Greensboro-High Point did not receive a fair hearing. For these reasons I dissent from the opinion of the majority, except that I concur in that portion which gives Greensboro-High Point a small measure of relief and so affords it a part of a fair hearing.