Petition for Writ of Certiorari — Wilcox v. Colorado

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Bthce-Supreme Oeurt, US | ie

FILED

’ ; . ty

"1963

IN THE ©

vB CLERK

, Supreme Court uf the United ‘ |

Ocroser TERM, 1963

Pie No. C24)

s 5

In the Matter of. the Petition of

% Easters Ain Lines, Inc.

_ NortTHEasT AIRLINES, inc.

7 oe

Civ AERONAUTICS Boarp.

PETITION OF EASTERN AIR LINES, INC., FOR WRIT

_ OF CERTIORARI TO THE UNITED | STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT ie: pie

er : + KE. SmytHe GamMBRELL .

Haroutp L. Russecr— . pees oe os

825 Citizens & Southern a ama 7

National Bank Building

Atlanta 3, Georgia

; iis RT ee

e? * Ricuarp Warr

30 State Street

Boston 9, Se ee sags

me : ' Attorneys for Petitioner.

fia ; pee Eastern Atr Lines, Inc.

fF al . =

James HL. Bratros, JR. a

JACKSON CooK

.« Of Counsel -

Atlanta, Georgia

December B11, 1963"

\ / .

A / _¢

———-

. @

_ Nea

2 . Je

INDEX

; a Ps j a PAGE

2 ae oe a , t

_* Opinions Relow i ONE CET 1

, - Jurisdictionto Review ii eae ls 2°

Questions Rgesented A SOON SLR San Be Sieie een a

FE > sang soybean re TN CO arid"

Statement _....... 6 ETON isiestaaecoieaseeeen sal — sake 3

: : $ t ‘ "ie ig

Reasons for Granting the Writ .......0..cfeccccteceescecceeeee - &

sgt ; | a

CONOEUBION | .onneseccaleenness: RPE Lape cove nO baal dnleoatals 19

. Appendix A—’ 7

' ; / A

, Orders of the Court GPONOW <n nernsennee2erannseamerove reccohec “Sl

Appendix B— > os

y Statutes ...... Rit NEG RAPE RIE PaO TOE EERE NE boicacie aa

e ; ~ ‘ i “ys a

TasBLe or AUTHORITIES CITED

Cases: | \

eis p eee Comnen of Forsyth County CAB, 296

A Od 95 (Ath Cir. 1962) ............ sn tdtebenstlisat tateonaiivaccibadasonis —«i16

Algonquin Gas Transmission Co. v. -FPC, 201 F. 2d

J “4 jo+ (1st Cir. 195: 3) sheckccaa dick ness oy tebe apie eh ene aaa AE ; scah 6

Amalgamated Meat Cutters v. NLRB, 267 F. "Od 169

age C ‘ir.y; cert. dented sub nom., Geilich, Tanning

“Ue. Amalgamated Meat Eutte rs, 361 ak S. 863 .

pre EEE NAS COIR SONA or ARERR ES er WE DOS AR ARE. ABE 11

Noo

Amerwean maces grea v. CAB, 178 KF. 2d 903 (7th

_ Cir, 1949)

Assoctated See. Corps. ; SEG. 283 oF ud 7 73 (10th a

Cir. tf i)

Atlante: Ref. Co. v. Standard OR c vo, 08 F. 2d 387

(D.C. Cir. 1962 aes no tbs ATS Te

Consolidated Edison Co. vy. International Bhd. of -

Elec. W orkers, 800. U. 19 +1938) vapor Soeeceann EE

Delta Air Lines, Ine. ¥. CAB, 275 F. 2d 632 (D Cc.

: Cir. 1950), cert de nied sub nome, Trans World

irlines, Inc. v. Delta ltr Lines, Inc., 362 U. 8.

SO go eee ey

- Bastern. gir Lines, Inc. v. CAB, 261 F. Sd 830 (24. -

Rei ET ssh sssenceccnssones RapennA a

Haleston Drug Stones. ine. v. NERS, t 0 F. 2d 1022

(Uthr Car, 1990), eviamascarcint oe C.8 pe (1951) ..

Lnte rnationa! Ui mcorn os Mine HN “orkers ¥. ieaisks Pitches -

Mining & Smelting Co. 32e€. S.385,(1943)o....... LL. @

- > © GOs . oe

A wu? man ve Sactete Internationale. 345. UL So 1d6

(1992) SC Rey te AR POP AAA PC |

Av2zak vo Wells, 278 F. 2d 104 (Sth ck LOGO) ; b

. National Aerlines, Lite vy. CAB, 306 Fo 2d 758 (DL. |

Cir. 1962) Lael irene Sorter iL

National Aerlomes, dec ve CAB, S21 F 2 380) LD. c

Cir, 1903) KBE te Stee. | ee bi

Vew York Florida Case, 24.0. A> Bo 1956) 2

Ven York Florida Renewal Case “CAB Docker oss 3

: .

»%

ill

PAGE

Railroad Comm'n v. Rowan. d& Nichols Oil Co., 310

Uo§. 573 (1940) ........... PR A Sue AN alt \

Seripps-H oward Radio Tne. v, FC ©, 316 U, S. 4 ( 1942)

16.

14, 1h, 17

Southwest Airways Co. v. CAB, 196 KF. 2d 937, (th :

eS Bi nh Ae We ORR a i gE =a Me : ae

State Airlines Ine, v. CAB, ivf F. 2d m0 (D. C/ Cir.

1949), rer ‘ad git Other grouuds, 338 U. S..aTy — 10-

Sutphen Estates, Ing. ve U nited State Ss, cay UL 8.19

{1951 aoe pp incresiesnncipaapsnimnpmsatas i cssiatealtaaphckatioeisaasaees 2

Textile Workers v nion Vv. ‘Alle ndale oh. 296 F. 2d 165

(D. C.-Cir. 19% 55). cert, denied sub nom., Allendale

Co. v. Mitchell, : I ELS. 900 Sy | the RR ARS (Sa 6,8

| United Air Lines ae v. CALL, "igs F. 7 100 (7th Aa

pe iteake. tA CRN RE SESAOER, FLED CEPA Laie ating eee 1]

‘ : 7 :

. Virginian Rywv. United States} 272 U. S. 658 (19269

be ae | : 14,18

: fe 5 7 «. :

YW aon Air Luss, Inc: v.. CAB, 196 F. 2d33 (9th

2 Cir. ). cert. denied, ae U. 8. Sia CIBa8) ....:........... ‘L)

sd Wolpe v. nbiae y, 144 F.2d 505 (b. C. “Cir, 1944),

i corte denied, 3 a ee 3. | | pee emaee arate onl ie a

Statutes ag bay ae a

gavel

suinivivative Procedure Act 3 |

Giby. F a eet ee JOOS (4 j eins eer ne 4

Ova), ” (8. €. 1O009Cd) (1956) _- _~t...13, 14, Ip

cas’ eae

Aaa :

; Be ee ;

‘ | iv.

7” cs PAGE

a Federal Aviation Act Bey ees %-

= s401(a), 49.U. S.C. s1371(a) (1958) . See a 12

§1006 (dy, 49 U.S. C. §1486(d) (1958), eee Se

§1007,-49 U. S.C. 91487 (1958) ene rei 12

§1008,\49 U.S.C. 1488 (1958) rg aad, oe

(28 U.S.C. §1254(1), (1958) Locccececeeecceeeee : ai 2

29 v. S.C. '§160(¢) Se els

Rules: | . oe .

Federal Rules of Civil Procedure

I ee 6, 7,8, 12

FN TGR) ssi ‘. ; 9

_ Miscellaneous: ae ee ‘ ;

‘Black Law Dictionary 956 (4th ed. 1951) . istemeueiials ore 13°.

S. Doc. No. 248, 9th Cong. 2d Sess. ' 38-39, = Js +0),

277-78, 323, 369-70 (19S) oa enceeennees ae 14

. 63° Yale ‘ J. 40811954), Note, Sicaiitsiabls sisi

~ -the~ Meaning of “Bound” Under F@leral Rule

ad Se rsbheiac onan eens 10

“

: OF APPEALS FOR THE FIRST CIRCUIT.

? ; Ix THE 7 - ; |

‘Supreine Court of the Auited States 8

OcToBER Teka, _ 1963. - : 7 —

Reo 3 Pe

ay ea.

In the Matter of the Petition -of

Eastern Air Liygs, Inc.

‘

--NortHeast AiRLINEs, Ine.

Es aes.

Civin AERONAUTICS Boarp.

PETITION OF EASTERN: AIR LINES, INC., FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT ~*

Petitioner, ee Ey -Air Lines, Ine. (“Mastern”) prays

‘that a writ of certiorari-issue to review the orders of the

United States Court of Appeals for the First Cireuit, -

entered on October 17,1965 and November 6, 1963, which oa

_ orders, respoétively,, granted: Northeast Airlines, Ine.

(“Northeast”) a stay -of Civil Aeronauties’ Board Order.

B-19910 (August 14,01968).to a date certain rather than

pendenty lite and denied Kastern’s motion for leave to

“intervene in the case before that Court.

re Bes Opinions’ Below ~

Copies oft the orders of the Court below, rendered with.

out opinion, are*attached as Appendix A hereto.

ak Orel Jurisdiction. to Review

_ The dates of the orders of the Court, of Appeals sought

, to be reviewed are October 17, 1963. and November 6, 1963.

The jatiediction. of this Gourt i is inv oked under 28 U. 8. Cc.

§1254( 1) (1958).

The foliowing decisions sustain the power and _juris-

diction of this Court to review the order complained of

herein upon, petition of an intervenor or would-be iinter-.

venor: Sutphen Estates, Inc: vy. United States, 342 U. S.-

19, 20 (1951); International Union of Mine Workers v..’

_ Eagte-Pitcher. Mining & Smeitiny Co., 325 U. S. 335,

338-39 (1945) ; Consolidate d ‘Edison Co. v, -abiteriiationals

‘Bhd. of Elec. W ‘orkers, 305 U.S. 197 (1938).

Questions. Presented . < Se 7

+ W) Whether “an air carrier’ party, which participates

as.a formal party. and bears a major burden in deyeldp-

ing the evidentiary Rcord.in a Civil Aeronautics Bo: and °

route proceeding, and which has a-direct and substantial

financial interest in upholding the orders of the Board;

‘is entitled to intervene, and support those" orders upon

review thereof by. a court of appeals. .

* : i

» (2) W hether a reviewing court has the: power to: gremt

a stay to a date certain, rather than pendente lite aléne,

of the effectiveness of. an administrative order denying

renewal of a ‘tempor ary certificate of public convenience

and nkeessity. |

(3) Whether a court, in reviewing the decision of lan.

ohm inistr#fite agency, ean substitute its judgment for. that

of the agency and: grant a stay, of the agency’s. order

without giving reasons for its. action and while denying-

the intervention of interested and affeeted persone with

respect to its action on the stay. oe .'. ,

iene”

Statutes Involved

_ he

' Admidistewtive Procedure Act t S10(}SU, S.C. s1009(4)

(1958). &

Federal Av iation Act 510064), 49 UL S.C. $1486(d) |

(1958), ef ; j © 5 -

‘The relevant sections of these statutes are set forth

in Appendix B.: Seay A fess

Statement

In 1956, the Civil _ Aeronautics Board (“Board”: o

ia in the New York.Florida Case, 24. C.A.B. 4

(1956), authorized Northeast to. operate ‘south o&™!New

York to Miami via intermediate points for a temporary ;

period of. five yedrs. That authority expired on November -

27, 1961. . Northeast continued to operate south of New -

“York until October 14,1963, however, because of the prox

_ Visions of Section ‘9(b) of the ‘Administrative, Procedure 4 if

3.U. S. €. §1008(b) ( 1958), and has operated south

4 sat York since October 17, 1963 by reason of the stay

purport: ‘dly gr auted by the Court below.

ey proceeding, styled the ae York- Florida Renewal

Case, CAB Doeket 12285 et aly, was gommenced | in June _

1961 to determine whether the: public convenience’ Aird

“necessity required renewal of Northeast’s authority* South

"of: New York, The proceeding: lasted more than two. years

and the issues were briefed and argued after compilation _

ofa voluminous record of some: 11,000 pages.’ On August

15, 1963, the, Board issued its Decision and Order E- 19910,

- in. whieh it determined, upon thé ev identiary record and

‘findings of fact, that the. -public convenience and necessity:

do not require the operation of a third carrier in maricets.

previously temporarily pieces! to Northeast south of

— o* e

; : -

Fi “« . Roce 4

New York and also served by Eastern and Natjonal Air-

lines, Inc. (*National?’). under {ire authority-of permanent

certificates sot public convenience and necessity. Pursuant

to the Board's. Rules’ of Practie Re, petitions for recon-

sideration were filed ‘by a number of parties. - Some

parties, including Northeast, in contémplation of the denial

of the petitions for reconsideration and of subsequent judi-

cial review, also ‘sought from the Board a stay of the

effective date of its decision pending judicial review. On

' "= October 8, 1963, the Board issued. its order (Order E-

20073) on reconsideration det lying the’ ‘petitions for recon- °

sideration, and motions for stay but, by attempting ‘to

postpone the effective. date of its order from’ October 14.

to November 15, 1963, purported . to allow Northeast .32

additional days in which to terminate operations south of

New York. ee . 8

In the interim, Northeast had filed on October 4, 1963 its

petition secking judicial review by the Court of Appeals for

the First C irepit “of the Board's Order It 19910. and, on Octo-

ber * 1963, a motion with the Court oe ies a stay oF said

~ order until April 30, 1964. Hastern, petitioner herein, filed -

on October 7, 1963, a motion for leave to intervene inv the -

- procéedings in the First Cireuit, and on October 8, 1963, a

motion for leave to intervene «with respect to and to be

heard upon Northeast's motion for stay. On, October 17,

1963, th Court below denied Eastern’s petition for leave to

intervene and Its motion for leave to file-a memorandum’ in

opposition to stay but granted Northeast’s motion for stay,

not pendenté lite alone but until April 30, 1963, Without

specifying any grotinds for its decision other than a con-

sideration of the documents before the Court. See Appen-

dix .A.. By that actions Northeast was given greater oper-

ating rights than it has held since November 26, 1961, when

its certificate expired and it continued operations pursuant

fé R ‘ ¢

to Section 9(b) of the Administrative Procedure Act, 5

~U. S.C. §1008(b). (1958), since the Court’s action has, if

the Court had jurisdiction so to do, effectively certificated

Northeast for a term certain—to April 30, 1964—-whereas

betere it held authority to.operate | I)

_On October 20, 1965, Kastern askedMhé Court below to re-

consider its denial of Eastern’s motion for leave to inter-

vene in the review pr oceeding and on November 6, 1963, the

Court denied such reconsideration, allowing’ Kastern te file

an amicus curiae brief only. The respondent Board ecerti-

fied the ine

and the clerk of the Court notitied the parties that the case

would be hes id at the January term. See Notice From

Clerk, United States Court of Appeals for the First Circuit,

October 22, 1963. Under thé Court's fules, Northeast’s brief

would have been. due November 26, 1963. Prior to the due

date, Northeast asked for an extension of time for filing

briefs to January 31, 1964. Eastern was not served with

Northeast’s paper and, on November 18, 1963, the Court

granted Northeast’s motion without Eastern's having been

heard upon the matter of the delay. Decision in the cise

may he de] aved for at least tw o months and the consequent.

loss of revenue by Eastern, for two months, would be over

$2 million. | : | /

Reasons for Granting the Writ

The deeision of, the Court below. represents a market

departure from settled law governing the rights of parties

to administrative proceedings, substaritially affected by

orders entered therein, to intervene and support suc +h orders

upon appeals of ageney determinations by aggrieved

partics. °

1 of New York only

‘pending final determination of its applic

d to the Court in accordance with’ its Tules, .

’ It is weil established that “Rule 24, F.R.C.P., now em-

bodies the primary arouse for intervention in federal

actions.” AKozak-.v.s Wells, 278 F.2d 104, 108 “(8th Cir.

(1960) ). See Algonquin Gas ‘Transmission Co. *. FPC,°201

F.2d 334, 342 (1st Cir. 1953). Under that rule, a movant ~

“shall be permitted to intervene in an action .:; . (2) when

the representation of the, applicant's interest. by existing

parties is or may be inadequate and the applicant is or may

be bound by a judgment in the action. . ...” (Einphasis

added.) Fed: R. Civ. P. 24:00 + | 3

It should be noted at the outset that the Rule requires

only that the party seeking intervention may be inadequate-

ly represented. In the instant case, that possibility exists.

‘The C XB may not, except upon the request of the Depart: -

ment of Justice, appear in court in ange of its orders. See

Federal Aviafion Act § 1008, 49 U. ", $1488 (1958). Thus,

although C AB. attorneys are ae appearing in the

3 Court below, they do so‘at the sufferance of the Department

of Justice, and should the Department .decide to abandon .

the cause, CAB would, by the language of the Act, be unable

~ to-take further steps. That such action is within the realm

of the possible is shown by the Justice Department’s plead-: —

ings, filed with the Board, attacking the Boaxd's decision.

See Petition.of the United States For Reconsideration and

-Reargument and For a Stay of the Decision and Order

E-19910, CAB Doeket 12285 et al.

~The impact of such an attitude upon a prospeetive inter-

venor’s rights was recognized bY the Court of Appeals for

the District of ¢ ‘ileenleian Cireuit in Textile Workers U nwon

-- Allendalé Co., 226 F.2d 765 (D.C. Cir, 1955), cert. denied

ae nom., Allendale Co. v. Mitchell, 351 U.S. 909 (1956),

which stated at 768: + |

“The right of the appellants to mtervene is not

affected: by the fact that the general position they

s°

ba .

-7

assert is already represented in the action by the Sec:

‘retary of Labor. The Secretary’s response to the mo-

tions to intervene declares that neither the appellants

nor the appcilees can show ,themselves %o be. directly

affécted by the determinations. This is hardly an

assurance of adequate Fepresentation for the appel-*.

lants. Even if the Seeretary espoused the appellants’

Interests with greater heart, it would not necessarily

preclude their appearance to plead for themselves.”

(ik ootnotes omitted.) FP

See also Ratan’ v. Societe Internationale, 343 UL S. 156; :

160-62 (1952). :

° °

The Textile Workers case concerned an attempt by com-

peting employers and affected labor unions to intervene

before a District Court which was reviewing certain deter-

minations by the Secretary vf Labor fixing the prevailing

minimum wages in the woolen and worsted industry where

Government contracts were concerned. After denial of heir’

petitions for leaye to intervene, the appellants sought re-

‘view of that action in the Court of Appeals, asserting that.

they were entitled-to interyene and support the Secretary's

determination. The Court. of Appeals held that they were

so entitled as a matter of right, under Rule 24. ‘The Textile

Workers case is indistinguishable i in any important particu-

lar from the case at bar.

To the same effect, see Atlantic Ref. Co. v. Standard Oil

Co., 304 F.2d 387 (D.C. Cir. 1962), wherein Standard On

sought to have a regulation issued by the’ Secretary of the

‘ ‘Interior deelared iHegal. Appe ‘Hants, an association of small

retiners, sought to intervene in the District Court and sup-

port the Seeretary’s regulation. Upon denial of their mo-

‘ tion, appeal was taken to the Court of Appeals. In holding

that the association was entitled to intervene as a matter of

right, the Court stated at 392: as

“In order to establish that representation of the in-

terest of the applicant for intervention by existing

parties is or may be inadequate, it is not necessary

to show that suéh parties or their counsel are not.

acting in good faith, or are not properly discharging

’ their os either in prosecuting or defending the

action . *¥ ;

In essence, these cases seem to stand for the proposition

that a person with sufficient interest in a judicial proceed.

ing to be substantially affected by a determination therein,

is entitled to representation of his choice before it can be

said that he is adequately represented. Howeter, even if

the cases be construed Jess broadly, astern respectfully

submits that these precedents, together with the Justice

Department’s publicly’ announced attitude toward — the

~ Board’s order, conelysively establish the. fact that Eastern, °

at the least, **may Me” inadequately represented by the ex-

isting parties. / os ; ra

Rule 24 further requires that the prospective intervener

“is or may be bound by a judgment in the acti®n.” Fed. R.

Civ. P. 24/ There can be no doubt that Eastern is and will.

be “bourid” by any judgment. rendered_by the Court of- Ape-

peals for the First Circuit in the instant case. Eastern has

a right, under Section 1007 of the Federal Aviation Act,

49 U~ S. C. $1487 (1958), to obtaim enforeement of the

Board’s order in any competent district court of the United

States. However, if found to be valid, the order of the 4

Court below, purporting to stay the effect of the Board’s

Order, would constitute an absolute defense to such action .\\

at this time oes ae J \

An almost identical situation is found iy — v. Poret- \

sky,.144 F. 2d 505 (D.C. Cir.), cert, denied, 3 323 U.S. 777

(1944), where appellee had brought suit in the District

Court to enjoin members of the Zoning Commission of the

\ { «9

> .

District of Columbia from carrying into effect a disputed

zoning order. The District Court granted, the requested

injunction. Subsequently, after the lower court’s decreé was

entered, the Commission voted not to take an appeal. There-

after, almost a month after ‘such decision by the Commis-

sion, a number of adjoining landowners filed motions for

leave to intervene. Upon denial of their motions, appeal

was taken to the Court of Appeals for the District of Co- ;

lumbia Circuit. In holding that appellants fully satisfied:

the requirements of Rule 24(a) and were thus entitled to

intervene as a matter of right, the Court stated at 507:.

“Tt seems clear thal a judgment which declares a zoning

order to be void would bind adjoining property owners |

to the extent off taking away their statutory right to

an independent; action based on the order.”

Thus, Eastern iy presently bound by a judgment entered

in the Court- below, in that its right to a statutory action

based on the Board's order would be stayed by the Court’s

stay order. And. if the Board’s order is declared void by

the First C irfuit, EKastern’s right to such an action would

be permanently taken aways" eS

Furthe ‘hore, the courts have poeebninel: that the strict

test of r¢\ judicata is inappropriate in applying Rule 24(a)

to appellate cases growing out of administrative proceed.

. ings./ See Tertile W orkers Union v v. Allendale Cé., ~—.

at fei pis ‘re the Court stated:

rs ™ Appe ‘Hants. in this vise were not parties in a techni-

cal sense to the. administrative proceeding; neverthe-

“a they are, Hound’ by the de&rminations therein in

a very practical sense. Authoritative rulings made

in this proceeding fixed’ a wage at a national level.

These rulings are ander attack in the suit for review

below. It is true that, if the attack succeeds, the final

judgment would preclude neither the’ appellants nor.

the appellees from later pressing their interests at-

the ddministrative level. But ultimate victory at that

point cantiot overcome the ‘practical disadvantage’

which appellants May de subjected) as-a result of the

prior judicial action.” a 5 (Emphasis added. ) (Footnote

omitted. )

— See also Note, Intervention and the Meaning of “Bound”

Under Federal Rule 246a)(2), 63 Yate L. J. 408 (1954).

In the instant case, Eastern was not only a full party

to the proceeding before the ageney, but Eastern has in-

~ disputedly already been Subjected toa “practical disadvan-

tage” by the actions of the Court of Appeals for the First

Cireuit. As shown in the record below Eastern is losing,

and will continue to lose, almost $50,000 per day in ‘pas:

senger revenue alone so long as the Board's order is pre-

vented from taking effect. The fact that Eastern may, at.

some later time, have recourse to: another administrative

proceeding involving similar issues cannot ‘compensate it

for the. revenue (drain it will experience as a result’ of any

auction by the Court below that ee: the validity of ‘the

Board’s order. 2

The .posture of the instant « “case ix not novel. Route

awards and route ad justinents by the CAB: have heen An

the Courts of Appeals on review since the inception of phe

Board. Yet no case has been discovered w here a competing

earrier, having a direct ‘and Substantial interest in the

preservation of a CAB decision in a route case, has been

refused ‘leave to intervene and protect that decision upon

appeal, To the contrary, intervention tnder these cireum

stances has uniformly: hean allowed without diseussion or

_dissent.' tronically, Within the past two years, Nortlieast

' See, 4.4... Delta dar Lines, Jaw y CAL. ais F 2d 632 (oD. ¢.

Cir. 1959). cert. denied sub nom., Trans World Airlines, Ine. ¥.

Delta Air Lines, Ine. . 862 US. 969 (1960). State Aurlines Ine. +

CAB, 1i4 F. 2d 510 (D.C. Cir, 1949). ree’'d om other grounds,

B38 0. S.572 1950), Amerwan Airlines, Ln ot CAB, 178 F. 2d -

03 (7th Cir, 1949

There are a number of cases. virtually idistinguishable from

the iistant Case, where intervention by the prevailing party was

red

. \s

”

has been allowed to intervene without question of its right .

to do so in two appellate proceedings: wheré awards by

the CAB beneficial to its interests were challenged. - See

National Airlines, Inc. v. CAB, 321 F. 2d. 380 (D. C. Cir.

'. 1963) ; National Airlines, Inc... CAB, 306 F. 2d 753 (D. C.”

Cir. 1962). . i :

_ There is, in one speciajized area, a line of cases which

deny leave to intervene to one seeking intervention for

the purpose of supporting an order of ‘thé NLRB. See,

e.g., Amalgamated Meat Cutters v. Ron cance Spl

(Ast Cir.), cert. dented stb - nom., Gei anning Co: ¥

Amalgamated sg Cutte TS, "361 U. S. $63 (1959) ; Haleston

Drug Stores, Inc. . NLRB, 190 F. 2d 1022 (9th Cif. 1950),

cert. denied, 342 , S. R15 a) (1941). However, these cases

are peculidr to NLRB practice: and grow out of a statutory

provision making the NLRB the sole agency for abating —

unfair labor practices. See 29 U. S.C. §160(a) (1958),

_ In contradistinction to that provision in the National Labor

Relations Act, the Federal Aviation Act provides, i in perti-

nent part:

Gw r ah

allowed. with ne-issue as to the propriety of such action being

raised. In Southwest Airways Co. v. CAB, 196 F. 2d 937 (9th

‘Cir, 195%), ‘the Board had denied Southwest's application for

renewal of its te mporary route between Los_Angeles and Phoenix.

When Southwest sougat review of the order. Bonanza, which waS

awarded the route, Was pormitted to intervene in support of the

Board's order. Similariy, in Western Air Tg) nes, Inc. v. CAB, 196

F. 2d 933 (9th Cir.), cert. denied, 344 Cl3B. 875° (1952), the .

Bobrd had denied ce rian applications of Wager and shad sus-

pended certain porticfeof its route authority, and had certificated

Bonatiza to serve these routes instead of Western. When Western

sought review, Bonanza was perniitted to intervene in — of

the Board's order, Likewise, -in United Air Lines Ine. CARB,

198 F. 2d 100 (7th Cir. 1942), certain authority of United was

suspended and trausfegred to Frontier. On United's appeal from

that decision, Frontier was granted leave to intervetie in support

of the Board's order.

een:

on :

. 12

_“[{Ijn the ease of a violation. of section 401(a)* of this

Act, any party in interest may apply to the district

court of the United Statés, for any district wherein

such person carries: on his business or wherein. the

violation occurred, for the enforcement of such provi-

sion of this Act... art such court shall have juris-

diction to enforce obedience thereto. LS gy

added.)

—— Aviation Act $1007 (a), 49 U: S. C. $1487(a) (1958).

The rationale of the NLRB eases renders them inapposite

in a’ circumstance where.a statutory right to enforee an

administrative order is specifically given to any party in

interest. Thus, Brea case have no applicability in-

the instant case.

Eastern respectfully submits t! tat it fulfills the applicable

requirements set forth by Rule 24(a) and held by the courts ©

to be the governing considération where parties to admin-

-istrative proceedings seek to intervene, on appeal of ai:

administrative order. Having fulfilled those rejjuirements,

Eastern is entitled to intervene in the Court below as a

matter of right.

Since the action of the Court below is in conflict with

that of every other Court of Appeals wherein the question

here under consideration has arisen (see footnote 1, supra),

‘this Court. should aot to’ clarify the law and render its. -

, application uniform. Otherwise, the disparity in treatment

* of interested parties will lead to forum shopping: Orderly.

appellate practice in administrative law “requires corree-

tion #f the error of the Court below and the restoration

of uniformity in the treatment of prospective interveners

before reviewing courts.

? Section 401(a) makes it unlawful for any person to engage .

in wir transportation without a certifieat of pablic convenienee

and necessity authorizing such transportation. See 49 U.S. ©.

$1371 (a) (1958).

(Footnote

wie 7 e ; = 13 i ; ° |

6 .

The nature of this case is such that delay in giving

effect to the determinations of the Civil Aeronautics Board

- BN as to public convenience and: necessity will cost Eastern

on | | millions of dollars. Kastern urges therefore that this

} °°. eourt not only direct the Court below to allow Eastern to

. participate in all proceedings before it. but also that it ~~

Zoe invalidate the action taken by that court to stay and’ pro-

long the matter without Kastern’s participation. The

‘ Court’ below, in granting a stay of the Civil Aeronautics

Board’s Order -E-19910 until a "date certair, rather than

for - the pendency of judicial rev iew alone, exceeded its

jurisdiction and created uncertainty where previously the

law had been clear. The governing statute,? Administra-

tive Procedure Act §10(d), 5 U. S. C, $1009(d) (1958),

- states in pertinent part:

" “Epon such conditions ax may be required and to the

extent necessary to prevent’irreparable injury, every

_* The other statutory provision relating to the instant problem,

* ~ “Federal Aviation’ Act $1006(d), 49 U. S.C. §1486(d) (1958) .-is -

consistent with Section 10(d), although the: language of the two

provisions is not identic al. Section 1006(d) provides, in pertinent

part:

- *Upon good’ cause shown . . ., interlocutory relicf may be

granted by stay of the order.or by. suck mandatory or other

relief as may be appropriate.” (Emphasis added. )

It should be noted that nothing but * ‘interlocutory relief” is au-

" ' thorized by-Section 1006 ¢d). Slack’s Law Dictionary defines inter-

locutory as: a

= ‘Something inte rv ening be ten n the commencement and the end

of a suit... :”° Black, Law Dictionary 956 (4th ed. 1951).

Thus, §1006 ( a of the Aviation Act and §10(d) of the Admin-

istrative ‘Procedure Act authorize the same type of relief—one

+t merely expresses thy scope of the available ‘remedy in a different

manner. This being so, it does not really matter which provision

is held: to control.

reviewing court . .-. is authorized to nn all neces- |

sary and appropriate process to postpone the effective

- date of any agency action or to° preserve status or

Tights pending conclusion of the revicw proceedings.*

(Emphasis added. )

Senator McCarran, Chairman Sr the Senate Committee

on the Judiciary at the time the Administrative Procedure

Act was enacted, stated on March 1287946, during the dis-

cussion of the measure by the Senate that the purpose of

the section was to:enable the reviewing court to postpone

the effective date of agency action or to preserve the-

status quo pending conclusion of. review proceedings:

S. Doc. No. 248, 79th Cong. 2d Sess. 323 ( 1946). Other

statements to the same effect appear throughout the legis-

lative history of the Act. Sce id. at 38-39, 213, 230, 277-78,

323, 369-70. |

~ No court bas held that Section 10(d) empowers a re-

. Viewing court to grant interim relief. to a date certain.

To the contrary, this-Court has stated that the reviewing

court has power to grant such relief pending judicial

review.' Sere

The order in the inatnnt ease stands as a ioe holding

that the grant of relief to a date certain, which might be

later than the date of final disposition of the case (an

expectable eventuality when the stay was granted since

the Northeast appeal was to be argued before the First

Circuit in January 1964) is within the jurisdictio® of the

review ing court. The Order granted the stay “during the

‘pendenty of the petition for review herein in this Court .

. bute because of the peculiar nature of this particular

case, this: stay shall be effective at least to and including

* Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942): Vir-

giunian Ry. v. United States, 272 U. S. 658 (1926).

gus -3

? 15 5

April “30, 1964.” It was specifically urged. below by the

Civil Aer onauties Board that the grant of stay to a day

certain was beyond the C ‘ourt’s: ‘power. See Memorandum

of Civil Aeronauties Board in Opposition to Stay,:2-3 (Oct.

9, 1963): Until the issue is clarified by the Supreme. Court, . ~

it will remain’ in dispute. The ever increasing volume of

administrative agency litigation forecasts recurrence of the

issue and the desirability of its resolution b¢ this Court.

If one court can, in effect, affirmatively license a.carrier

to engage in air transportation for a period of six months,

another could do so for eight’ or ten, ‘and another ‘could

license a television station fora year, or a pipeline for two

years, ad infinitum.

3, os

. The decision of the Court below is further believed to’

_- be in error in that, upon the record presented, it could not.

reasonably have found that the criteria relevant ‘to the

grant of stay, enunciated by this Court in Scripps-Howard

— Radio Inc. v. FCC, 316 U.S. 4, 10, 11 (1942), and followed

__ by every court of _ appeals wherein the issue has arisen,

‘were satisfied. The courts ‘of appeals have uniformly held

‘that four preréquisites must be met by -the moving party.

before: a stay w ill issue: | Pro,

“(1) Has the petitioner made a strong showing that it.

is likely to. prevail on the merits of its appeal?..

(2) Has the petitioner shown that without such relief,

- —° it will be irreparably injured? .. .

~ (3) Aaa the issuance of a stay RErICenOR harm

(4) Ww here lies the sabi interest’ ots

Virginia Petroleum Jobbers Ass’n v. FPC, 259

"F.2d 921, 925 (D. C. Cir. 1958).

ee iniaiiee

_ Atrport Comm’ n of Forsyth County v. C AB, 296

F.2d 95 (4th Cir. 1961);° .

Associated Sec. Corp. v. SEC, 283 F.2d 773 (10th

ee Cir. 1960) ; ;

: Eastern Air,

ines, Inc. v. CAB, 261 F.2d 830

" Northeast, rey ay best, eddreeted itself suas to numbers

(1) and (2). above. In regard to the fundamental question

of the likelihood of prevailing on the mériis, the’ precedents

cited by Northeast to show.error on the part of the Board

were not: only distinguishable but ‘irrelevant. Relevant 2

precedent, on’ thé6ther hand, indicates that a defermination

of the public interest, convenience and necessity so peculiarly

vested inthe Board's diseretion will not be overturned on —

review.’ In regard to the third requirement recited above —

5 See, C.9.. Railroad Comm’n v. Rowan & Nichols Oil Co., 310

U.S. 573, 581-82, 583, ae (1940), where this Court stated :

4 ' “Certainly in a domain of knowledge still shi ing and

growing and in-a field where judgment is: therefore neces-

+ sarily beset by the- necessity .of inferences bordering on, con-

jecture even for those learned in the art, it would be pre-

“xa, Sumptuous for courts, on the bas# of conflict ng expert

. testimona to.deem the ‘view of the administrative tribunal.

acting undér a e authority, offensive to the Fourteenth -

Amendment. . Plainly theseare not issues for our arbitra-'

_ment. - It is not for the federal courts.to supplant the

Corimission’ ’s judgment even in the face of convineing proof

that a different result would have been better. "

Thus, it seems highly unlikely that Northeast will prevail on the

“amerits of its appeal, sine? there isSanqle warrant in the record for’

the Board's decision and the issues converned are mattérs peculiarly

- committed to the Board's expert judgment. In these circumstances, __

the grant of a stay merely postpones the inevitable to the detriment

- of ali concerned, Northeast and’ ity employees: included.

and not even alluded to by Northeast i in its Motion fo‘ ' Stay,

“ 1.€., harm to other parties, the other parties» to the Board’s

proceeding, grievously harmed by the grant of ‘stay,* were

not even allow ed to participate i in the proceeding below.’

Northeast sought a stay from the ‘CAB, urging upon the:

Board the same matters it urged upon the .First Circuit.

The Board deniéd. Northeast’s requests and, in so doing,

" passeil {ipon questions of public and pr ‘ipate interest which

‘are within the Board's exceptjorial administrative compe-

tency. TK F irst Circuit substituted its judgment for: that

tions plainly without, and found by the Board to be without,

/ * merit. Ifa stay could properly be granted on the record

before the C ourt below, then stay: would issue as a matter

of course in every proceeding in which review ofa contested

ageucy determination was . sought. T his- result is directly

foe _ contrary to this Court’s statement, reiterated, in numerous

: ‘eases, that: = a

. ' “A stay is not a thatter of right, even if irreparable

injury might otherwise result to the appellant. i

See Séripps- Howard Radio, Inc. v: FCC, supra at 20. 1.

W here the threat of sybstantial Iwoperty and thttainctii*

damage ix posed tothe erstwhile successful litigant-at the

; agency level by the prospect of a judicial stay,.a reviewing -

court should, at least, receive oral argument,and express

® As. shown by the record beiow, Eastern and National Airlines

“Will Tose approximately $72,685 per day throughout the period

of the stay asa result of the Court's gction, or a total of some

$15 millions through April 30, 1964.

. m ate

7The Court below denied’ all of Restern’s motions, including

its motion for feave to file a memorandum in oppositiqn to stay

see ParadoxKally, the png order grafting stay’ recites that thi

» Court “considered” all de cuments that had bee, wn filed.

of the Board*and granted a stay upon che basis of allega-—

_its Views in_a written opinion thet tests the varying con-

18 .

tentions against the standards of established law. As ‘the

record shows, none of these steps was taken in this case.

This Court has -recognized the problems inherent in. pro-

, cedures such as those employed by the Court below :

wU nless an dpinion. indicating the. écvenile of the.

decision is delivered, a defeated party may often be

unable to determine whether the cage presents a ques-.

tion worthy of consideration by the appellate court....

The failure to accompany the decree by an opinion

may thus deprive litigants of the means ‘of exercising

a sound judgment on the propriety of an appeal; and.

‘the appellate court, being without knowledge of the

grounds of the decision below, i#denied:an important

aid in the consideration of the case, and will ordinarily

he subjected to much unnegessary labor.”

Virginian Ry. v. United States, 272 U.

- 675 (1926). . soe

ga. :

The absence of any opinion is particularly significant here

where the order reeited that “because of the peculiar nature

of this ‘particular case, this stay shall be effective at least

40 and including April 50, 1964." But .the Court did not

make any finding as to whereir the case is “peculiar” and

“did not even maké any of the evidentiary material preffered

by the would-be intervenors a part of the reeord. The

motions praying leave to su'init this material w ere denied

out of hand. rege sts, :

“If oral argument had been he ld. it would have ‘been possible,

for example, for Eastern to rebut ifreaponsibl« amd erroneous al-

legations of union parties that were presented in memoranda and

affidavits, to which Eastern had no opportunity to respond. <Al-

*though-the Court refused to allaw intervention by those parties,

and retased to permit their documents to be filed, nevertheless,

the Court's order recites that they were considered. Of course it

is not. possible to ascertain the, influence phose contentions might

have had on the decision. since the Court wrote no opiniom. This

illustrates, in part. why this Court has criticized? réfusals of lower

courts to seteforth im writing their reésous for granting :stays

See, c.y., Virginian Ry. v. United States, 272 U.S. 658 (1926).

| \ “19

The errors committed by the ¢‘ourt below require cor-

rection now, and prior to final decision by the First Circuit.

Denial of Kastern’s intervention ‘below deprives Eastern

of substantial rjghts and protection of those rights require

review by this hour now. The harm to Eastern which re-

sults from the improvidently granted stay will continue

- throughout the period during which the Board’s order is

held in abeyance. If this Court does not act now to review

- the’ action of the Court below in granting a stay until a

date certain, the. issue will be mooted by the lapse of time..:

Finally, the questions raised in ‘the instant .case are of

paramount importance to the operations of all regulatory

agencies under ‘the Administrative Procedure Act. This:

Court need not be reminded .of ‘the volume of litigation

pending before the federal regulatory agencies and in the -

—federal courts seeking review of agenéy: actions. The action

ot the Courtbelow will impinge directly upon every litigant

now fhivoly red gi sul proceedings. . The-public interest will

be greatly served if this ¢ ‘ourt resolves the confliets. Dosed

by the instant case. to :

:Q - - . €ONCLUSION: | ee

For the foregoinggrasons, this ene a writ of

certiorari should be granted. .

Respectfully submitted,

/s KE. Smytue GAMBRELL

s Haroip L. Russe.” * .

‘s Ropert Procter =, «+

/s Ricnarkp Warr

Attorneys for Petitionér,

Eastern Atr Lines, Inc.

Cértificate of Service

- 1, Harold L. Russell, one ef the attorneys for Easter Air

Lines, Inc. and a member of the Bar of the Supreme -Court

of the United States, hereby certify that, on the 31st day of

December 1963, I served copies of .the foregoing Petition - ;

for Writ of Certiorari to the United States Court of Ap- | 7

peals’ for, the First Circuit (and Appendices thereto) by

mailing copies thereof, correctly addressed with first class

postage prepaid to the follow: ing, as required by. Supreme

Court Rule 33:

~ Clarence I. Peterson, Esq.

| Foley, Hoag & Eliot

10 Post Office Square

Boston 9, Massachusetts: *

Attorney for Northeast Airlines, Ine. | *

O. D. Ozment, Esq. ,

Associate General Counsel

Civil Aeronautics Board

* Washington, D. C., 20428

Hon. Archibald Cox

“Solicitor General of the United States

» Washington 25, D. C. Sy a

‘s Harowp L. Russewy

' Haroip L. Re SSELL

a ; Attorne y for Eastern alir Lines, Inc.’

December 31, 1963 >

“21

APPENDIX A

“ORDERS OF THE Court BELow, ktev Octoner 1%, 1968

Daten | ‘

UNITED STATES COURT OF APPEALS

For tHE First\ Circuit rf

ae | : No. 6220, ~~

Nortuerast AIRLINEs, INc.,

; Petitioner,

gs .

‘ Civit AgEronavtics Boar,

ae . Respondent.

i : a

OrvER,.oFr Court

October 17, 1963

~ Upon consideration of motion of petitioner for stay pend-_

ing review, memorandum in support thereof, answer of

~ respondent thereto, and of all of the motions filed and the

memoranda and affidavits proffered therewith as enumer-

ated in a previous order this day [appearing at pp. 2-3 of

this Appendix], . ;

It is ordered that the t taking effect of ein No. E-19910

of the Civil Aeronautics Board of August 15, 1963, be, and

the. same hereby is, stayed during the pendency of the

petition for review herein in this Court including the time

for filing any possible petition for rehearing and, if any

such petition far rehearing by filed, the disposition thereof,

plus one week, but, because of the peculiar nature of this

particular case, this stay shall be effective at least to and oh

~ ineluding April 30, 1964. - ae

. By the Court: Wr 4

/s/ Roger A. Strxcnrretp

; Clerk -

ec: Messrs. Fordham and Wanner. [Courtesy ec: Messrs.

, . Wait, Rooney-and Hanify. | |

* Appendix A

Page 2

UNITED STATES coU RT OF APPEALS

For - THE Fikst Cmovry

No. 6220.

NorTuHeast AIRLINES, INc.,

' Petitioner.

-Crvi. Agronavtics Boarp,

Respondent.

OrpER oF Court

October 17, 1963

_ Upgn consideration of (1) motion of Eastern, Air Lines,

Inc., for leave to intervene, (2) motion of Master Executive

Council of Northeast Pilots for leave to intervene, (3)

‘.motion of Master Executive Council for leave to file memo-

randum, and affidavit in support of motion of petitioner for

_ Stay, and the proffered memorandum and affidavit, (4)

-motion of International Associati of Machinists for leave

to intervene, (5) motion of International Association of

Machinists for ieave to file memorandum and affidavit in

support of motion of petitioner for stay, and the proffered

memorandum and affidavit, (6) motion of Eastern Air

Lines, Inc., for leave to oppose motion of petitioner for stay,

and the proffered memorandum and affidavit, (7) motion of

National Airlines, Inc., for leave to intervene. (8) motion

of Nationai Airlines, Inc., for leave to file memorandum in

opposition to the motion for stay and the proffered memo-

Appendix A

Page 3

randum.and affidavit, (9) petitioner’s memoFandum in oppo-

sition to the motions to intervene of Eastern Air Lines, Inc.,

_ and National Airlines, Inc., (10) motion of. petitioner for ’

leave to file reply to answer by respondent to motion for

- stay, and the proffered reply, (11) motion of National Air-’

lines, Inc., for leave to file answer to petitioner's Motion _

- for leave to file a reply, and the proffered answer, and (12) :

motion, of Eastern Air Lines, Inc.,-for leave to file memo-—

‘randum in opposition to motion of petitioner for leave to

file reply, and the proffered. mejnorandum,

It is ordered that the aforesaid motions for leave to inter-

vene generally be, at this stage, and the - ‘samme hereby are,

denied; and further

It i is ordered that the remainder of the aforesaid motions

be, and the same hereby are, denied.

By the Court:

/s/ Rocrr A. STiIncHFIELD

Clerk

lec: Messrs. Fordham, Wanner, Wait, Rooney and Hanify. |

- ®

Appendix d

Page 4 *

UNITED STATES COURT OF APPEALS *

ee ee EE oe

No. 6220.- cata

- NortTHeast ArruNes, INce.,°

Petitioner,

Crviz. Agronactics Boarp.

; , Tt _ Respondent. _.—~

aie

Orper or Court’

November 6, 1963

Vpon consideration of amotions of National” Airlines.

Inc., and: Eastern Air -Lines, Inc, for reconsideration of

the erder of this Court of October 17,1963, denving leave

to intervene, and of anemoranda in support thereot and in

> opposition thereto, and

~ * - = . oe al %

.. . F . . ° . i .

Treating ‘said motions ax alternatively seeking leave to

fiie briefs antici curiae,

Leave is herehy granjed to said movant~ herein to file

. briefs amici curiae pursuant to Rule 23010) of the Rules

of this Court, and the motions are otherwise demied.

S By the Court:

‘s Rocer A. STINCHFIELD. -

Clerk.

fee: Messrs. Fordham, Wanner, Rooney and Wait. !

+ M50...

Section TOCA)? ~

* APPENDIX B

STATUTES INVOLVED ___..

hi Administrative Procedure ~* (10,5 U.S. C. £1009 (1958)

Mg cicrtiaes

DUS © wee

INTERIM’ RELIFF—Pending judicial review any agency

is authorized, where it finds that justice so requires, to

postpone the effective date of any’ action taken by it.

L pon such conditions -as may be required and to the

exient necessary to prevent irreparable injury, every

reviewing court (including every°court to which a.ease

may: be taken on appeal! from or upon application for

ecertiorar! or other writ toa reviewing court) is author-

ized to issue all necessary and appropriate procgss to

postpone the effective date of any agency action or to

preserve status or rights pending conclusion of the

review proceeding. 7

oo” vit

Section 1006(d):

Upon transmittal of the petition to the Board of Ad-

ministrator, the court shal} have exelusive jurisdiction

to affirm, modify, or set aside the order complained of,

inf whole or in part, and-af need be, to order further

proceedings by the Boafd or Admanistrator. Upon good

-enuse shown and after reasonable notice to. the Board

or Administrator, interlocutory relief may be granted

by stay of the order or by such mandatory or other

relief a> may be appropriate.

’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.