Opposition — National Airlines, Inc. v. Civil Aeronautics Board

Supreme Court, U.S,

FILED

NOV 2 i97T

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OctToBER TERM, 1977

No. 77-448

NATIONAL AIRLINES, INc., Petitioner,

v.

CrviL AERONAUTICS BoarD, ET AL., Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENT WESTERN AIR

LINES, INC., IN OPPOSITION

Emory N. Enis, Jr.

FULBRIGHT & JAWORSKI

1150 Connecticut Avenue, N.W.

Suite 400

Washington, D.C. 20036

GERALD P. O’Grapy

SENIOR VICE PRESIDENT

LEGAL AND SECRETARY

WESTERN Arr Lings, IN.

P. O. Box 92005

World Way Postal Center

Los Angeles, California 90009

Of Counsel:

FULBRIGHT & JAWORSKI

1150 Connecticut Ave., N.W.

Washington, D.C. 20036

November,2, 1977

Pusss or Brow 8. Abams Paintine, Inc., WasHIncTon, D. C.

a a a ae 5

I. The Court of Appeals Sustained the Board

Decision on the Need for Competition Because

It Was Reached After Proper Procedure .... 5

II. The Limited Remand Ordered by the Court of

Appeals, and Its Retention of Jurisdiction,

Did Not Improperly Intrude Upon the Board’s

I a ad ae i 7

Ne ee ee 12

CITATIONS

CasEs:

Braniff Airways, Inc. v. CAB, 379 F.2d 453 (D.C. Cir.

RUD ONE ee tie ee al A a 8

Continental Air Lines, Inc. v. CAB, 519 F.2d 944 (D.C.

Cir. 1975), cert. denied sub. nom., Western Air

Lines, Inc. v. Continental Air Lines, Inc., 424 U.S.

EE chu duc autdndeycbe es ctheakdaokewesd 8

ee” wee Inc. vy. CAB, 442 F.2d 730 (D.C. Cir.

St as kak dban Cs thdahedewiw ie cdesdlensscass

SED delsucuddsl cinandudnd auied nawGeebeéees 9,10

Fleming v. FCC, 225 F.2d 523 (D.C. Cir. 1955) ........ 8

Ford Motor Co. v. NLRB, 305 U.S. 364 (1939) ........ 10

ii Citations Continued

Page

FPC v. Transcontinental Pipe Line Corp., 423 U.S. 326

Se IEE. 5 Jeu cbncusensnasesss cases 7,8

Northeast Airlines, Inc. vy. CAB, 345 F.2d 484 (1st Cir.),

cert. denied sub. nom., Eastern Air Lines, Inc. v.

Northeast Airlines, Inc., 382 U.S. 845 (1965) ..... 9,10

Pacific Far East Line, Inc. v. Federal Maritime Bad.,

275 F.2d 184 (D.C. Cir.), cert. denied sub nom.,

Matson Navig. Co. v. Pacific Far East Line, Inc.,

Lk rere 8

Western Air Lines, Inc. v. CAB, 351 F.2d 778 (D.C. Cir.

PE evdtuadecccavkaeecsecececantekhakeuece 8

STATUTE:

Section 1006(d), Federal Aviation Act, 49 U.S.C.

EEE socukescteunur arte ieee 7

Orpers, RuLEs:

CAB Order 72-8-95 (August 23, 1972) ............... 3

CAB Order 77-9-62 (September 16, 1977) ............ 9

Southern Tier Competitive Nonstop Investigation,

CAB Order 69-7-135 (July 24, 1969) ............ 2

Rule 13(d), Rules of U.S. Court of Appeals for D.C.

SE. bbb nsdccavecqussbuetuctdcheciisessatas 11

IN THE

Supreme Court of the United States

OcToBER TERM, 1977

No. 77-448

NaTIONAL AIRuines, Inc., Petitioner,

v.

Crvi. AERONAUTICS BoarD, ET AL., Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENT WESTERN AIR

LINES, INC., IN OPPOSITION

Respondent, Western Air Lines, Inc. (Western), re-

quests that the petition for writ of certiorari by Peti-

tioner, National Airlines, Inc. { National), to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case be

denied.

OPINIONS BELOW

The opinion of the Court of Appeals, which has not

yet been officially reported, appears at Appendix A of

2

the petition. Orders 76-3-93 (March 15, 1976) and 76-

6-120 (June 16, 1976) of the Civil Aeronautics Board

(the Board), which constitute its decisions in the

Mtami-Los Angeles Competitive Nonstop Case and

which were under review by the Court of Appeals,

are found in Appendices B and C, respectively, of the

Petition.’

JURISDICTION

The jurisdictional requisites are adequately set forth

in the petition.

QUESTION PRESENTED

Whether the Court of Appeals, having found that

the Board committed procedural error on the issue of

carrier selection in a route proceeding, may properly

remand only that part of the Board’s order.

STATEMENT OF THE CASE

This case arises from the continuing efforts of the

Board to ensure the provision of adequate air service

between Miami and Los Angeles. In the Board’s ear-

lier decision with respect to this route in 1969, it de-

termined that service in addition to that provided by

National was required by the public convenience and

necessity and that Northeast Airlines (Northeast)

should provide the competitive service. Southern Tier

Competitive Nonstop Investigation, Order 69-7-135

(July 24, 1969). Northeast’s authority was, however,

suspended as a result of its merger with Delta Air

Lines in July, 1972. The Board thereupon initiated

. References to the Court of Appeals’ opinion and to the Board

orders will be to the appropriate appendix to the petition.

3

the Miami-Los Angeles Competitive Nonstop Case to

once again determine if the public convenience and

necessity required certification of a competing carrier

on the route, and, if so, which carrier should be certifi-

cated. Order 72-8-95 (August 23, 1972).

The Administrative Law Judge (ALJ) handed down

his Initial Decision in Miami-Los Angeles on June 13,

1973. The ALJ found that competitive service was still

required by the public convenience and necessity and

selected Pan American World Airways, Inc. (Pan

American) to provide that service. The Board took

discretionary review of the ALJ’s decision on June 19,

1973. Review proceedings were, however, deferred

pending completion of a study on the need for an

environmental impact statement, which was sought by

National only after issuance of the Initial Decision.

Oral argument was finally heard by the Board on

April 16, 1975. In undertaking review, the Board was

confronted by a record which had been developed two

years earlier and based on 1971 data, the most recent

available at the-time of the hearing. The Board at-

tempted to remedy this situation without initiating yet

another round of hearings by electing to update the

record using officially noticeable data. On the basis

of this updated record, the Board affirmed the ALJ’s

determination that competitive service was needed on

the route, but chose Western, rather than Pan Ameri-

ean, to provide the service. App. B-2.

After the Board denied their various petitions for

reconsideration, several parties, including National

and Pan American, sought review by the Court of

Appeals. In its June 23, 1977 opinion the Court, after

rejecting various challenges to the Board’s decision

4

which are not in issue here, considered the arguments

of Pan American and National that the Board erred

in updating the record without providing the parties

an opportunity to participate. Pan American’s chal-

lenge prevailed, but National’s did not.

The Court was ‘‘persuaded by a combination of

factors that fundamental fairness required the Board

to give Pan American the chance to [participate in the

updating process with regard to the carrier selection

issue].’’ App. A-28. The four factors listed by the

Court were the substantial length of the delay between

the initial and final decisions; the fact that the adjust-

ments to the record made by the Board operated ‘‘sig-

nificantly to the detriment’’ of Pan American; the

‘plausible arguments’’ put forward by Pan American

to refute the Board’s interpretation of the changed

circumstances; and the Board’s apparent unexplained

departure from its earlier position regarding the im-

portance of beyond segment traffic support’ in trans-

continental cases. App. A-28-29. It is clear from the

Court’s opinion that ‘“‘supplementation of the record’’

was considered necessary only because all of these

factors were present. App. A-40.

With regard to National, the Court determined that

the Board’s updating techniques worked no harm. Na-

tional was simply unable to persuade the Court that

the procedures followed by the Board with regard to

the need for competition issue caused it to ignore any

evidence which would have supported a conclusion that

2 A beyond segment passenger is one who uses the service in ques-

tion, here Miami-Los Angeles, as part of a longer trip which origi-

nates or ends or both beyond Miami or Los Angeles. Beyond seg-

ment support measures the number of such passengers that a

particular carrier can bring to a given route.

)

such service was unnecessary or unsupportable. App.

A-29 n.15.

Having affirmed the Board’s decision with regard

to the need for competition, the Court of Appeals did

not vacate the Board’s order. Instead, the Court re-

manded the record to the Board to allow an ‘‘adver-

sarial exploration’’ of the recent developments in the

Miami-Los Angeles market which led to the selection

of Western over Pan American and to allow the

Board to reconsider its decision in light of the evi-

dence so adduced. App. A-42. National’s petitions for

rehearing and for a stay of the Court’s order were

denied on August 2, 1977.

ARGUMENT

The Court of Appeals in this case implemented a

limited remedy to cure a limited defect which it found

in the Board’s decision-making process. Petitioner’s

attempt to evaluate this result to a level necessitating

review by this Court is both unwarranted and unsup-

portable. This case simply does not present any impor-

tant questions of federal law, and the decision of the

Court of Appeals is not in conflict with either the de-

cision of another Court of Appeals on the same matter

or with the applicable decisions of this Court.

I. The Court of Appeals Sustained the Board Decision on the

Need for Competition Because It Was Reached After Proper

Procedure.

National initially contends that the Court of Appeals

erroneously upheld the Board’s decision on the need

for competition solely because it agreed with the sub-

stantive result reached by the Board, and despite sub-

stantial procedural defects. Petition at 12-13. This

6

argument is clearly at odds with both the reasoning

and the language used by the Court below. In fact, the

Board’s determination in this portion of the case was

sustained precisely because the Court found that no

procedural defect existed.

Both National, the petitioner here, and Pan Ameri-

ean challenged the unilateral updating of the record

undertaken by the Board. It must be remembered,

however, that the updating to which National ob-

jected related to the need for competition issue, while

the updating to which Pan American directed its argu-

ments related to the carrier selection issue. There are

two separate and distinct inquiries involving analysis

of different factors and criteria. Delta Airlines, Inc. Vv.

CAB, 442 F.2d 730, 733 (D.C. Cir. 1970). A decision

on the first issue depends on whether the market in

question needs and can support additional service.

Carrier selection, on the other hand, revolves around

which of several applicants can provide the best ser-

vice and can bring the most public benefits to the mar-

ket, while, if possible, operating at a profit.

Thus, petitioner’s contention that it is ‘‘inescapable”’

that the selective updating condemned by the Court

of Appeals as to the carrier selection issue also affected

the need for competition determination, Petition at 12,

is, quite simply, wrong. Given the fact that the two

issues are distinct, the meaning of the Court’s state-

ment that “National has not drawn our attention to

any factors which indicate that procedural shortcom-

ings caused the Board to ignore evidence suggesting

a contrary outcome on the need for competition issue,’’

App. A-29 n.15, becomes clear. The Court of Appeals

is simply saying that it found no procedural problems

7

with the Board’s consideration of the need for addi-

tional service. As described above, such a result is per-

fectly consistent with the Court’s contrary finding as

to carrier selection. The Court in no way reached its

decision because of agreement with the Board’s sub-

stantive result, as is claimed by National.

Contrary to National’s contention, Petition at 14,

the Court’s opinion clearly indicates that the Court

operated precisely within the confines laid out in FPC

v. Transcontinental Pipe Line Corp., 423 U.S. 326

(1976) (per curiam). Having found the decision on

earrier selection ‘‘not sustainable on the administra-

tive record made,”’ id. at 331, the Court of Appeals

remanded that issue. The fact that the decision on need

for competition was sustainable on the agency record

meant that a remand on that issue was unnecessary.

II. The Limited Remand Ordered by the Court of Appeals, and

Its Retention of Jurisdiction, Did Not Improperly Intrude Upon

the Board's Discretion.

National also contends that the Court of Appeals’

limitation of the scope of proceedings on remand and

retention of jurisdiction over the case represent an im-

proper intrusion on the Board’s discretion and signal

‘fa massive shift of power between court and agency.”’

Petition at 18. Once again, National has improperly

interpreted the Court’s actions.

Section 1006(d) of the Federal Aviation Act, 49

U.S.C. § 1486(d) provides that the Court of Appeals

‘shall have exclusive jurisdiction to affirm, modify, or

set aside the order complained of, in whole or in part,

and if need be, to order further proceedings by the

Board.”’ The clear implication of this statute is that

the Court of Appeals, having found procedural error

8

in only part of the Board’s order, may reasonably limit

the scope of proceedings on remand. ‘‘The decision

whether or not to limit the scope of proceedings on re-

mand involves the sound discretion of the reviewing

eourt.”’ Braniff Airways, Inc. v. CAB, 379 F.2d 453,

468 (D.C. Cir. 1967). The D.C. Cireuit has, in fact,

routinely remanded agency cases with limiting instruc-

tions, including both CAB eases, see, e.g., Continental

Air Lines, Inc. v. CAB, 519 F.2d 944, 960 (D.C. Cir.

1975), cert. denied sub. nom., Western Air Lines, Inc.

v. Continental Air Lines, Inc., 424 U.S. 958 (1976) ;

Western Air Lines, Inc. v. CAB, 351 F.2d 778, 783-84

(D.C. Cir. 1965), and cases from other agencies, see,

e.g., Pacific Far East Line, Inc. v. Federal Maritime

Bd., 275 F.2d 184, 187 (D.C. Cir.), cert. denied sub.

nom., Matson Navig. Co. v. Pacific Far East Line, Inc.,

363 U.S. 827 (1960); Fleming v. FCC, 225 F.2d 523,

526 (D.C. Cir. 1955).

This limited remand procedure is not, despite Na-

tional’s claim, contrary to the precedents of this Court.

Unlike the situation in FPC v. Transcontinental Pipe

Line Corp., 423 U.S. 326 (1976) (per curiam), the

Court of Appeals in the instant case has in no way

attempted to usurp the Board’s authority to decide the

substantive issues involved after developing the

needed evidence. In fact, the Court was careful not to

enter the substantive area of the case, and instead or-

dered the Board to undertake an ‘‘adversarial explora-

tion” of the developments relating to carrier selection

and to reconsider its earlier decision in light of the

evidence so developed. App. A-42. As to the need for

competition, the Board has already made its substan-

tive decision and the Court of Appeals has upheld the

method used in reaching that decision. Further consid-

eration by the Board is unnecessary.

9

The teaching of FCC v. Pottsville Broadcasting Co.,

309 U.S. 134 (1940), is also not contradicted by the

action of the Court of Appeals. In Pottsville the

Court of Appeals, having already remanded a broad-

east licensing case to the agency, attempted by man-

damus to prevent the agency from consolidating the

remanded application with two others filed after the

improper denial of the remanded application. This

Court overturned the Court of Appeals’ order. Such a

stage in the proceedings has simply not yet been reached

here. In Pottsville the agency itself sought certiorari,

complaining that the Court of Appeals’ mandate was

overly restrictive. There is no indication that the Board

in any way feels that it has been similarly limited here.’

The First Circuit has faced such a situation in a

CAB case. In Northeast Airlines, Inc. v. CAB, 345 F.2d

484 (1st Cir.), cert. denied sub. nom., Eastern Air

Lines, Inc. v. Northeast Airlines, Inc., 382 U.S. 845

(1965), the Court of Appeals remanded a Board order

denying extension of Northeast’s New York-Florida

certificate, but retained jurisdiction over the case. On

remand the Board determined that the wiser course

would be to open a full route investigation and under-

take a complete review of the New York-Florida

market. Upon request by the Board, the Court of Ap-

peals promptly relinquished its jurisdiction and re-

*In fact, the actions taken by the Board since remand demon-

strate that no Pottsville situation will arise in this case. In Order

77-9-62 (September 16, 1977), which is attached as an appendix to

this brief, the Board invited comments on the proper scope of the

proceedings on remand, but indicated that ‘‘[t]he Court did not

require a re-examination of the need for service question and we

see no public need for it.’’ App. 3a (emphasis added). Clearly, the

Board, through an exercise of its own discretion, has determined

that the limited reconsideration ordered by the Court is appropriate.

10

manded the full case for Board action. Id. at 489-90. At

the present stage of proceedings in the instant case,

there is no reason to assume that the D.C. Circuit would

not be equally solicitous of the Board’s discretion and

of this Court’s ruling in Pottsville.

National goes on to claim that the Court of Appeals,

by not vacating the Board’s order and by retaining

jurisdiction over the case pending Board action, has

again entered the realm of agency discretion by en-

gaging in what National characterizes as interim li-

censing. Petition at 15, 17. This contention borders on

the frivolous.

The decision of the Court of Appeals to remand

without vacating the Board’s order is perfectly con-

sistent with this Court’s precedent. In Ford Motor Co.

v. NLRB, 305 U.S. 364 (1939), this Court stated that

it is

familiar appellate procedure to remand causes for

further proceedings without deciding the merits,

where justice demands that course in order that

some defect in the record may be supplied. Such

a remand may be made to permit further evidence

to be taken. ...

Id. at 373. And further,

Ae ea is nothing . . . which precludes the court

rom giving an administrative body an opportu-

nity to meet objections to its order by correcting

irregularities in procedure, or supplying deficien-

cies in its record. ...

Id. at 375.

This is precisely what the Court of Appeals did in

the instant case. Having found procedural irregulari-

11

ties and deficiencies in the record regarding selection

of a carrier to provide competitive service, the Court

remanded the case for correction of these errors. Since

the Court has not as yet ruled on the merits of the

carrier selection decision, but rather is simply seeking

a complete record on which to decide that question,

vacation of the Board’s order was in no sense neces-

sary. To characterize the decision not to vacate as in-

terim licensing by the Court ignores the fact that it

was the Board, not the Court, which chose to certifi-

cate Western in the first place. The Court is simply

allowing that Board decision to stand pending com-

plete review based on a supplemented record.

The fact that the Court of Appeals also retained

jurisdiction over the case does not alter this conclusion.

Under Rule 13(d) of the D.C. Circuit, retention of

jurisdiction simply allows the Court to review the

Board’s decision after reconsideration without requir-

ing the parties to file new petitions for review. Such

action certainly does not threaten ‘‘a massive shift of

power between court and agency,’’ Petition at 18, and

in fact represents a laudable effort by the Court to

bring this already lengthy case to as speedy a final dis-

position as possible consistent with procedural fairness.

12

CONCLUSION

WHEREFORE, Respondent respectfully submits that

this Petition for a Writ of Certiorari should be

denied.

Respectfully submitted,

Emory N. ELLIs, JR.

FULBRIGHT & JAWORSKI

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

GERALD P. O’GrapDy

P. O. Box 92005

World Way Postal Center

Los Angeles, California 90009

Counsel for Respondent

Western Air Lines, Inc.

November 2, 1977

APPENDIX

la

APPENDIX

Order 77-9-62

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

Washington, D.C.

[SEAL }

Adopted by the Civil Aeronautics Board

at its office in Washington, D.C.,

on the 16th day of September, 1977

Docket 24694

MIAMI-LOS ANGELES COMPETITIVE NONSTOP CASE

ORDER REOPENING PROCEEDING

Background

On March 15, 1976, the Board issued its decision in

this case authorizing Western Air Lines to compete with

National Airlines over a Miami-Los Angeles nonstop

route. In so doing, the Board affirmed the decision of

the administrative law judge that the market needs, and

can support, competitive service. The Board, however,

reversed the judge’s selection of Pan American as a

competitive carrier.‘ Requests for reconsideration and

stay of that decision were denied on June 16, 1976.”

The Board’s decision was appealed to the United States

Court of Appeals for the District of Columbia Circuit

by National, Pan American, and two other losing ap-

plicants, Delta Air Lines and American Airlines. On

‘Order 76-3-93.

2 Order 76-6-120.

2a

June 28, 1977, the court issued its decision and re-

manded the record in the case to the Board “for ad-

versarial exploration of the recent developments con-

sidered by the Board in reaching its decision to prefer

Western over Pan American. ...” Delta Air Lines, Inc.

et al. v. C.A.B. (Miami-Los Angeles Route), No. 76-1241

et al. (D.C. Cir., filed June 28, 1977), slip opinion p.

42. The court was concerned that substantial delay had

occurred between the close of the record and the issuance

of the Board’s decision, that Pan American had persua-

sively argued that the Board’s updating of the record

had operated significantly to the detriment of that car-

rier, and that the Board’s consideration of beyond-seg-

ment services as a carrier selection criterion may have

constituted a departure from its 1969 decision involving

the same market. Specifically, the court directed the

Board to “give Pan American a chance to submit its

own version of changes in circumstances occurring be-

tween 1973 and 1976 and to comment upon the relevance

of those changes to the award of Miami-Los Angeles

route authority.” Id. at 28.

In all other respects the Board’s decision was upheld.

The court observed that of the various contentions pressed

upon it, only three warranted discussion and concluded

that, as to two of the contentions—namely, Delta’s argu-

ment that it was entitled to priority by reason of its

1972 merger with Northeast Airlines, and National’s

challenge to the Board’s alleged failure to comply with

the Energy Policy and Conservation Act of 1975—the

Board’s disposition should not be disturbed. Id. at 3-4.

National Airlines filed a petition for a stay of the court’s

decision pending rehearing en banc or the filing of a

petition for certiorari. On August 2, 1977, the court de-

nied National’s requests, saying:

“It is also desirable that the proceedings on remand

be carried on as expeditiously as possible, as the

3a

Board represents its purpose to do.” Delta Air Lines,

Inc. v. CAB, No. 76-1241 (D.C. Cir., ftled August

2, 1977).*

Discussion

We have decided to solicit comments from all parties

with respect to the proper course of action for the Board

to follow in light of the court’s remand.‘ In order to

focus the comments, we believe it useful to set forth two

specific questions on which the Board wishes comments.

First, we want parties to comment on the scope of the

remand required by the court’s decision. The court did

not require a reexamination of the need for service

question and we see no public need for it. As to the

carrier selection question, we note that the court’s de-

cision appears to have directly required only that the

Board “give Pan American a chance to submit its own

version of changes in circumstances occurring between

1973 and 1976 and to comment upon the relevance of

those changes to the award of Miami-Los Angeles route

authority.” Delta Air Lines, Inc. et al. v. (C.A.B. Miami-

Los Angeles Route), supra, slip opinion p. 28.5 We wish

the parties to address the Board’s power to reopen the

*The Court’s mandate was issued on August 9, 1977. A copy of

the Court’s August 2 order is attached.

*On July 1 and July 18, Eastern Air Lines filed motions urging

the Board to reopen the case for further evidentiary hearings on new

applications from all carriers and to hold such hearings in Miami.

Answers to Eastern’s motions are due shortly.

*We assume that this directive includes according Western a

reasonable opportunity to submit its version of recent events as

well. We note, however, that the court, in discussing the general

question of the updating of the record, observed that both National

and Pan American challenged this updating. The court, however,

rejected National’s claim that it had been prejudiced and did not

require the Board to accord National (and presumably others) an

opportunity for a further presentation to the Board. See slip

opinion, n. 29, note 15.

4a

ease for a de novo examination of the question of car-

rier selection where the court remands only the record.

Our tentative view is that this would be neither neces-

sary nor desirable. The Board’s original decision makes

clear our opinion that, from the perspective of the trav-

eling and shipping public, no carrier appears likely to

provide appreciably better service than Western or Pan

American.’ Furthermore, it must be recognized that this

matter has already occupied our attention for about a

decade, and that a commitment of Board resources to a

re-trial of this case would necessarily compromise the

Board’s concurrent ability to emply [sic] these same re-

sources to examine the needs of other markets as well

as other novel and important regulatory matters now fac-

ing the Board for the first time. Nonetheless, we do not

foreclose a fuller reexamination of the carrier selection

question if warranted.’

Second, whether this case is limited to the question

of carrier selection as between Western and Pan Ameri-

can (or, perhaps, an award to both), or is more broadly

reviewed, we wish the parties’ views as to whether the

Board could or should proceed under an expedited sched-

ule which would eliminate a new trial and a new initial

decision. In the Service to Saipan Case, Docket 24421,

and the Service to Richmond Case, Docket 24412, the

Board entertained evidentiary exhibits, rebuttal material,

and briefs, but did not hold a further oral evidentiary

hearing or require the filing of an initial decision. The

*See Order 76-3-93, pp. 19-22. The court will allow Western’s

continued operation during the pendency of any remand proceeding

and we recognize that, as a result, the traveling and shipping pub-

lic will not be deprived of needed service during the pendency of

any remand.

’ Eastern Air Lines has filed a request that the Board reopen the

entire carrier selection issue and hold further hearings in Miami.

Pan American has filed an answer in opposition; answers were due

September 9, 1977.

5a

Board was able to complete the Saipan case in under six

months and was able to complete the Richmond case in

just over four months. See Order 75-11-59, served No-

vember 17, 1975, and Order 76-6-171, decided May 7,

1976 (Saipan); and Order 76-11-131, served November

30, 1976, and Order 77-4-29, decided April 6, 1977 (Rich-

mond ) .

ACCORDINGLY, IT IS ORDERED THAT: Conm-

ments in response to this order shall be filed within 14

days from service and reply comments shall be due 7

days later.

By the Civil Aeronautics Board:

PHYLLIS T. KAYLOR

Secretary

| SEAL ]

All Members concurred.