# Petition for Writ of Certiorari — Wilcox v. Colorado > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1465%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 376 U.S. 931 ## Text 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 on ; 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 A / _¢ ae ———- . @ _ 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 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 of 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 16 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 >. : . & »% J la 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 . . 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 i 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 1 ” 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 ¢ ay wie 7 e ; = 13 i ; ° | 2. _ 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. . 14 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). i> gus -3 ON ? 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 pA 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. od ' 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. “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 . v. ‘ 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. | | 22 * Appendix A Page 2 UNITED STATES coU RT OF APPEALS For - THE Fikst Cmovry No. 6220. Ad NorTuHeast AIRLINES, INc., ' Petitioner. v. -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- Ge CO 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, v. 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... Federal Aviation Act 1006, $9 US. ©. 91486 (1958) Section TOCA)? ~ ee 20 * 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. ’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1465%3A2. Public record. Not legal advice.