Petition for Writ of Certiorari — CAB v. State Airlines, Inc.

INDEX

Page

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Specification of errors to be urged. === ae -- aa. ate de (10

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- Statutes: : ee

|

Civil Aeronautics Act of Safe: 23, 1938, c. 601, 52 Stat. 973,

as amended by Reorg. Plan No. IV, Sec. 7, effective June |

- 30, 1940, 5 F. R.2421, Ivascece 1235, 49 U.S.C. 401, et seg. 3, 21

Sec. 401. REE eg etn neice 11, 21

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~ 844383491

°

nthe Supreme Gourt of the Wnited States

| si fee OctToBER TERM, 1 o pera

| tage 157

>; (Civur-Ammoxavmi0s Boarp, PETITIONER

Vv.

Beare. AIRLINES, INC. |

PETITION FOR A WRIT OF CERTIORARI TO-THE UNITED

“STATES COURT OF FOR THE DISTRICT OF

i ee ‘COLUMBIA CIRCUIT i %

(he. Bolicitor General ‘on: behalf of the Civil

ronauties Board respectfully prays that a writ :

of certiorari be issued to review the judgment of

x the United States Court of Appeals for the

: District of Columbia Circuit entered in the above-

~entitled chee on April 6, 1949. ae

\ OPINION BELOW |

The opinion of the Court of Appeals for the

District of Columbia Circuit (R. 675-686) is not

yet reported. - The original opinion of the Civil

Aeronautics Board is reported in 7 C. A. B. 863

| (Ry 4565). The Board’s supplemental opinions

are pace in 8 C. A. B. 585 and 716 (R. 568-

— §88, 610-621). CRS }

me (1)

2

JURISDICTION» en:

The judgment of the Court of Appeals was en-

tered on April 6, 1949 (R. 686-687). The juris-

diction of this Soust is invoked. under Title 28,

United States Code, Section 1254 (1).

_ QUESTIONS PRESENTED

od

Le Whether, in selecting an applicant who is

. “fit, willing, and able’’ to operate an air route

found required by public convenience and neces-—

sity, the Civil Aeronautics Board must, as a mat-

ter of law, consider as ineligible for award of

the route all applicants whose proposed operating

plans do not specifically cover every portion of |

the route actually awarded. :

2. Whether the Civil Aeronautics Board is pre-

cluded under section 401 ( d) of the Civil Aero-

-nauties Act from awarding an air route to an

applicant which has ‘not: specifically requested

what the reviewing court characterizes as a ‘‘sub-

tial”’

but. has included in its application a so-called

- “*eateh-all’’ clause, customarily included in new

route applications, which requests the routes de-

tailed in the application ‘‘or such modification of

- such routes as the Board. may find public con-

venience and necessity require.” : =

_ 3. Whether the Court of Appeals erred in

undertaking, to. decide for itself what is techni-

cally shecessltry by way of plans and organization —

to render an applicant ‘‘fit’’ and ‘‘able’’ to oper-

$0

ate an air route, and in holding that there was

no substantial evidence to support the Board’s

finding that Piedmont was “fit, willing, and able”’

within th eaning of section 401 (d) of the Civil

Aeronautios Aet Hee Ment So

‘STATUTE. INVOLVED

The Sail veie provisions of the. Civil Aeronau-

tics Act of 1938, as amended, * which will be re-

ferred to as the Act, are set forth ‘in Appendix —

A, sec Pp. 21-22. i

| STATEMENT

On obra ry 24, 1945, the Civil Aeronautics

Board: (hereinafter called the ‘‘Board’’) con-

solidated for hearing in. a single proceeding

known as the ‘‘Southeastern States Case’’ some

45° applications ‘by 25 companies proposing new >

and additional air transportation services. The

applications included proposals -for ‘‘trunkline”’

service and local or ‘‘feeder’’ service,’ and em-

braced an area extending roughly from Maryland

—i,

sTinsieanter River (R. 569: (866)).° The pro-

Act of June 23, 1938, c. 601,,52 Stat. 977, as amended, 49 .

U.S.C. 401, e¢ seq.

. *A local or “feeder” air route, in contrast to a trunkline

route, is in general a route primarily serving small commu-

nities and tying them into the larger traffic centers with

which they have their major community of interest. The

service is normally rendered with small equipment and is

primarily short haul in character.

*The area included the States of Virginia, West Wis:

ginia, Kentucky, Tennessee, North Carolina, South Carolina,

4

ceeding resulted from the practice of the Board

in consolidating into one proceeding all route ap-

plications proposing service within a well-defined

geographical area, and was one of eleven so-called

‘area proceedings’’ held before the Board.

Various applicants for local or ‘‘feeder”’ service

proposed routes which overlapped and duplicated:

each other in many respects, and when taken

together blanketed the area involved (R. 638-

- 654). Among these applicants were State Air-

lines, Inc. (hereinafter called ‘‘State’’) and Pied-

mont Aviation, Ine. (hereinafter called ‘“'Pied-

mont”).

- Piedmont’s application, as amended, sought |

a total of 5,763 miles of specifically described

routes (R. 28-71,. 652, 653). Of these routes,

1,404 «miles consisted of a conventional passen-

ger, property, and mail operation over a horth-

south route extending from Washington, D. C., to

Columbia, S. Cg and east-west routes extending

from Knoxville, Tenn., to Wilmington, N. C., and

from Roanoke, Va., to Norfolk, Va. (R. 69-70,

652; see Map, Appendix B, infra, p. 23). The

remaining 4,359 route miles proposed by Pied-

mont in the same general area consisted of a

property-mail pick-up ‘ pee over an exX-

Georgia, Alabama, Mississippi ; portif 1s of Ohio, Indiana,

Maryland, Florida, and Missouri/ and the District of

Columbia.

«Property “pick-up” -service joveives the’ use of aircraft

equipped with a device for enplaning or deplaning property

at a station without landing the aircraft. -

yy

tensive net work of routes serving a larger area

than its proposed passenger routes 64-69, 653;

see Map, Appendix B, infra, p. 23). |

- Piedmont’s application included a so-called

~ “eatch-all” clause requesting authorization to en-

gage in air transportation ‘‘on the routes detailed

herein, or such modification of such routes as the —

_ Board may find public convenience and necessity

require’ ; and the general prayer in the applica-

‘tion asked ‘‘tor such other ‘and further relief,

general and specific, under Section 401 of

the cag, ace: ®--% as the Board may

deem appropriate, and to whieh the applicant

may. be entitled in any proceeding in which the

application may be heard in part or in ae en-

tirety’’ (R. 31, 41):* es |

State’s applications proposed twelve routes. pro- F

viding conventional passenger, property, and mail |

service to approximately fifty-five points over a _

~network of routes blanketing much of the “south-

eastern’’ area, and reaching out as far as Rich-

mond, Va., Jacksonville, Fla., Montgomery, Ala.,

Chattanooga, Tenn., Louisville, Ky., and Cincin- -

nati, Ohio ‘(R. 1-27, 654; see MGkeaeiieae B,

infra, P. 23).° :

‘An amendinent to Piedmont’s original application elimi-

nated certain proposals involving passenger service, but did

not affect the remainder of its original proposal, including

the “catch-all” clause (R. 62-71).

* On brief to the Examiners, and later to the Board, State

indicated that it would seek consideration of only nine of its

proposed twelve routes, thereby reducing from fifty-five to .

forty-four, the number of points it specifically desc e

ths 6

| oe

An extensive hearing on all the applications in»

- the proceeding was. held before the Examiners in

May and June of 1945 (R. 629 (6), 837). Evi-

dence was introduced by the various local or —

‘feeder’? applicants to support the need for the ©

local or ‘‘feeder’’ routes they proposed, and to

show their individual qualifications for operating

_ their routes, including evidence with respect to the

previous aviation experience of the applicant and

its officials, their available equipment and per-

sonnel, their financial resources, and their plans |

for operating the routes they proposed.

On June 4, 1946, the Examiners issued their

_report recommending, inter alia, that the area he

afforded four separate. local or- ‘‘feeder’’ routes,

one of which was to go to State, and one to Pied-

mont (R. 519-522). Piedmont’s recommended

route consisted-of a north-south segment. between

| bebrose, ser 1D. C., and Winston-Salem, N. Cs and

Rossoks Va. €R. 520). - State’ S nocurnnpensded :

route connected with that of Piedmont at “Win-

ston-Salem, N. C.,. but was in generak a more

southern route, consisting. ef north-south seg-

ments from Winston-Salem and Raleigh-Durham,

N. C., to Columbia, S. C., and east-west age

from Morehead City and Wilmington, N. C.,

Asheville, N. C., and Louisville, Ky. (R. gft-68),

serve, and reducing somewhat the general area covered by

_ it§ proposed network of routes (see Map, Appendix B,.

_tnfra, p. 23). [ es ie

P,

ee

“On ickicis to the eases? report Pied-

mont objected, inter alia, to certain routes recom-

mended for State (R. 533, 534). State contended,

inter alia, that the Examiners ‘‘erred in granting

to other applicants and failing to grant to State —

certain authority, which, although not specifically

sought by. State, would, if granted to State rather

th:n other applicants, form a more logical part

‘of the operating authority recommended by the

Examiners for State’’ (R. 529).

Following briefs and oral argument before the

Board, the Board issued its decision, in which it

determined, inter alia, that certain cities and re-

gions required ‘‘trunk-line’’ services, and made.

appropriate amendments in the certificates of

public convenience and necessity. held by five

“‘trunk-line’”’ earriers. In addition, the Board

found a need for two local or ‘‘feeder’”’ routes

(rather than four recommended by . the Ex-

aminers), one in the ‘southern area’? which was

awarded to Southern Airways, Inez, and another

in the northern area. 7

In selecting a carrier to operate the route in

the northern area, the Board considered the

qualifications ‘of all the applicants (eleven in

number) yho had proposed service to any part

of the route actually awarded. (See Map, Ap-

pendix /B, infra, p. 23.) The Board then nar-

rowed its choice down to State and Piedmont, _

and, after recognizing that. the. choice between

these two applicants presented ‘‘a close and diffi-

844388—49——2

8

cult question,” the Board concluded that Pied-

mont was best qualified to operate the route and —

was “fit, willing, and able’’ within the meaning of

section 01 (d) of the Act (R. 565 (901-902, 907) ).

~The choice of Piedmont over State essentially

turned on the conclusion that Piedmont had supe- —

rior operational experience, and possessed a well-

_ rounded organization with key personnel familiar

on te

with the area involved who could inaugurate certifi- \

cated operations sooner than State (R. 565 (902)).

Mugen s\route, consisting of 1{00 odd route. —

miles, centered\in the Carolinas and Virginias,

and extended west of the Appalachians as far

as | ‘Louisville, Ky., and Cincinnati, Ohio. (See

Map, Appendix B, infra, p. 23.) The route was

in some respects a consolidation of the two sepa-

rate routes recommended by the Examiners for

State and Piedmont, although somewhat less ex-

' tensive in total route mileage and area served.

Of the 26 points originally-iheluded in Pied-~

| -mont’ s certificate, 9 had been specifically named

in its proposed: passenger operation and all but

6 had been specifically named-in- its pick-up pro-

posal (R. 64-70; see Map, Appendix B, infra,

p. 23.) The extensive routes proposed by State had

included 24 of the 26 points awarded to Piedmont

(R. 1-27; see Map, Appendix B, infra, p. 23).

On petition for rehearing, reargument, and re-

consideration, State urged,,inter alia, that the

award to Piedmont was unlawful in that (a)

Piedmont had. not ati for the major portion

9

of the route, sinter specifically or by means of

the general allegations in its application, and

that therefore the award was beyond the Board’s

jurisdiction and denied State adequate notice and

hearing, and (b) the Board’s finding of “fitness,

- willingness, and ability”? lacked the support of

substantial evidence (R. 566). The Board then

heard reargument limited. to the questions of

(a), whether the public interest requires the se-.

Aection of State or Piedmont, and (b) whether

the Board committed legal error by awarding the

route to Piedmont’’ (R. 591). |

On December 12, 1947, the Board issued a

supplemental opinion reaffirming its award to

Piedmont, and issued to. Piedmont a temporary

certificate for the route (R. 610-628). The Board

found, inter alia, that Piedmont was clearly fit,

willing, and able, that State had been afforded

adequate notice and a ‘fair ,hearing, and that

in the light of Piedmont’s “catch-all” clause and

the customary practice in route cases before the -

Board, Piedmont was an “applicant” for the

route aw arded it (R. 611-619). On the relative

merits of the two applicants, the Board found that

Piedmont™‘iad more diversified experience in

aviation activities, that Piedmont was superior

in repair and- overhaul facilities and in main-

‘tenance personnel, and that Piedmont had the

nucleus of a_ well-rounded organization that

would permit earlier inauguration of service than

would State’s skeleton organization (R. 611, 612).

y

a

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queue ROUTES AWARDED TO PIEDMONT AVIATION, INC. / ge = : =9

é 7 : 4 . ; eong * NA a. \ P ’

mee CONVENTIONAL ROUTES PROPOSED BY PIEOMONT AVIATION, INC. , / MP A : S \ > :

PIEDMONT) _ we =PICKUP ROUTES PROPOSED BY PIEDMONT AVIATION, INC. vA 3 | sa a : 3 CHARLESTON

‘ ~ x A : 2 / i z e ° -

mee ROUTE PROPOSALS ACTIVELY PROSECUTED BY STATE AIRLINES, INC. Pe : eee: : He CHARLESTON

STATE <== —— ROUTE PROPOSALS NOT PRESSED BY STATE AIRLINES, INC. : on : ee i ! : 24 :

eeccecces ROUTE PROPOSALS IN EFFECT ABANDONED BY STATE AIRLINES, INC. . / : oa = ae jue :

; oe vg -” ~ ° ers

COMPOSITE ROUTES PROPOSED BY THE 9 OTHER CARRIERS (SEE NOTE) eee covudeus 2 cane . ~ ‘ ::

fi aay wan at ; COLUMBUS - _ : os

oT BOARD AWARDED THESE POINTS 10-13-47 V eaiee ae ae —-eee ee: OVeLI ve ed os 3 : j

/ MONTGOMERY sa 2 ”

NOTE: FOR INDIVIDUAL ROUTE PROPOSALS. OF THESE APPLICANTS SEE ORIGINAL TRANSCRIPT / 5 “

: OF RECORD AS FOLLOWS: | 3 Pe : Dees ue aia 2 savannan -

a ATLANTIC AND CAROLINA AIRWAYS COMPANY (TR. 138-148) / ee : f- ‘.

: ‘BLUEGRASS AIRLINES (TR. 584-595) : | / ; .

o. COMMONWEALTH AIR TRANSPORT, INC. (TR. 149-170) | , are ;

: GILLESPIE AIRWAYS (TR. 103-116) : ss reel , j

SEABOARD AIR TRANSPORT (TR. 80-95) ys | w =

SOUTH EAST AIRLINES (TR. 478-495) ‘ ’ ye

3s : SOUTH EAST AIRLINES, INC, (TR. 272-289) ' ieee ;

VIRGINIA AIRWAYS (TR. 417-426) 7 |

VIRGINIA CENTRAL AIRLINES (TR. 503- 5098.8.) = ;

i . - — G

: : ; : e é vd

y WAYCROSS BRUNSWICK® - Y

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CIVIL AERONAUTICS BOARD

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On appeal, die court below held (Judge Edger-

ton dissenting without opinion) that the Board’s ’

award to Piedmont was legally defective. in that

| _(1) the Board had exceeded its jurisdiction by of

3 making the award to a party who was not in

fact “an applicant’? for the route within the

- meaning of section 401 (d) (2).of the Act, and |

(2) there- was no substantial evidence ‘to support

_ the Board’s ‘finding that Piedmont was “fit,

; willing, and able” to operate the route within _

the meaning of the above-mentioned section of

the Act (R. 675-686). While reversing ‘‘the de-

cisions of the Board insofar as they resulted in the

- granting of a certificate” to Piedmont, the court

- held that it lacked the power to order the Board -

to issue a cer tificate to State, and remanded the

-ease for further proceedings not inconsistent with

its opinion. as | ™ ae

_ SPECIFICATION OF ERRORS TO BE ‘URGED

The court of appeals erred: | =

(1) In‘ holding that Piedmont was not an _

, “applicant”’ for the route awarded to it within

the meaning of section 401 (d) of me Civil

Aeronauties Act; : )

(2) In holding that/there was no substantial _

evidence to support the Board’s finding~ that

- Piedmont was ‘fit, willing, and able” within

_ the’ meaning of fsection 401 (d) of the Civil

| Aeronautics Act; Bhat saad os

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(3) In holding that as a matter of law an

applicant cannot be found ‘‘fit”? and ‘fable’’ to

operate an air route unless the applicant has

- come forward with plans showing how it proposes

to operate over each portion $F the route actually —

awarded ;

(4) In undertaking to decide os itself what

is technically necessary by way of plans and

_organization to. render an applicant ‘fit’? and

“able” to operate the route awarded to Piedmont;

(5) In reversing the decision of the Board

awarding the route to Piedmont.

REASONS FOR GRANTING THE WRIT

“This case raises questions of considerable : im-

portance in the administration of the Civil Aero-

nautics Act. The majority below has made an un-

duly restrictive interpretation of the terms. ‘‘fit-

ness,’’ ‘‘ability,’” and ‘“‘applicant,’’ as used in sec-

tion 401 (d) of. the Act, and has seriously and

~—unjustifiedly limited the field of choice entrusted

_ by Congress to the Board in selecting an ap-

plieant best qualified to operate an air route

found to be required by public convenience and

necessity. — :

The court below upset the ‘Board’ S finding of

fitness, willingness, and ability of Piedmont on —

the asserted ground that substantial evidence

was lacking to support the finding. But the es-

sential basis for fe litvalidasion of this determi-

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nation is to be found in the court below’s.

erroneous interpretation of the terms ‘‘fitness’’

and ‘‘ability.’’ The majority held in effect that |

under the Act an applicant cannot be found “‘fit”’

~ and ‘‘able’’ to operate an air route unless the

- applicant has come forward with plans showing ~

how. it actually proposes to operate over each

portion of the route actually awarded ;. the court —

below found in the statute an implicit provision

that it is not enough that the applicant has sub-

mitted plans for operating over part of the route .

awarded. This. limitation, if allowed to stand,

will seriously hamper the Board in the promotion —

and development of a sound air route pattern,

particularly in the realm of» ‘focal or “feeder:

routes. ly -

Both the actual inauguration of service and

the successful development of a given local or

‘‘feeder”’ route may be directly affec d by the

particular applicant chosen to operate the route.

Moreover, the route may often inelude segments

that were not proposed by. an applicant; or the’

route may be one combining the separate pro-

posals of several applicants, the Board having

found that. the public convenience and necessity -

requires ir operation as a single system.

‘Under the view of the statute taken by the court

‘. below, such a route system apparently could not

be awarded te any of the applicants. —

On the basis of its experience in ico with

* the: problem, the Board has established the prac-

¢

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tice in new route cases to determine first what)

service is required by public convenience and.

necessity, and theti to decide which applicant.

is best qualified to perform such service. In this

way, the public interest in an adequate air trans-

portation system is given primacy. The effect —

of the holding below, howeyer, is to compel the

Board to make. its determination within the rigid

limits fixed by the particular plans presented by

individual applicants. Only if the best qualified

applicant happens to have made substantially the

same appraisal of the public’s. need for trans-

portation service as that ultimately made by the

Board could a certificate be awarded to _such

applicant. ‘ oe

Such a limitation would seriously impair the

Board’s ability to establish and develop an

transportation system adequate to meet’ the n

of the public, and it is iriconceivable that Cotaiieat

-eould have intended to confine the Board within.

such a procedural strait-jacket. The extent to

which the Board’s certifications would serve the

_publie interest would depend upon the foresight ~

“and diligence shown by individual applicants in

elaborating the details of their operating plans

-for-submission to the Board. Theoretically this

objection might be met by~ conducting further

proceedings to afford the applicants opportunity ~

to make and present additional plans; but, as a —

practical’ matter, the necessity of thus, prolong~

ing what are already lengthy, time-consuming

Vetta

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procedures‘ would substantially impair - the

Board’s ability to effectuate the purpose of the

_ Act to establish an adequate air transportation :

system for the United States.

Apart from its erroneous interpretation of

' “fitness” and ‘‘ability”’, the majority below se-

- . mlously invaded the province of administrative -

Judgment. The determination of what constitute

the technical essentials of organization and plan-

ning necessary to the operation of air transport

services over the route awarded to Piedmont is

a matter which plainly falls within the. domain

of the Board.:

~The Board has norinally required an appro-

priate showing as’ to the adequacy of financial

resources, proper organization, and plans for the -

conduct of the service by competent personnel to

* establish an applicant’s qualifications. But. the

_ Board has recognized, from its familiarity with |

alr transportation problems, that an applicant

_ who has the necessary fitness and ability to oper-

ate a local feeder air route of a given mileage

_ is equally capable of operating another route of

| similar mileage, even though the route may ex-

tend in different directions and serve communi- }

- ties not originally contemplated i in the applicant’ 5

a

es T Proceedings involving local feeder service’ have proved |

especially time consuming, since they involve service in ‘wide

areas, and fréquently have required several years for comply :

tion even under existing procedures. | ; VA

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plans.’ This approach: accords with the realities

of new route developments,’ and is virtually

necessary since noyone can be certain what the.

opportunities for local feeder service are or what

route pattern a local feeder operation should as-

sume. These are practical factors in the admin-

istration of the Act which the Board was properly

entitled to consider in formulating its procedures,

and the decision below thus represents an unwar-

ranted intrusion upon the Board 8 administrative

authority.

The Board in this proceeding, having carefully |

examined the plans and organization of Piedmont,

set forth in its supplemental opinion awarding

- Piedmont the certificate, detailed factual findings

‘ Thus, if an applicant has sufficient, financing to enable

him to undertake Jocal feeder service over a route consisting °

of: ‘approximately one thousand route-miles, the particular

direction of route mileage and the particular communities |

to be served do not affect the financial ability of the appli-

- eant. Similarly, if an applicant has a nucleus of pilots, me-

_ chanics, equipment, and key personnel to-operate a proposed

local feeder route of one thousand miles and has presented

plans showing how he will operate over those route-miles,

the Board can judge the applicant/s capability of operating

another local feeder route of approximately the same size,

/ regardless of the details as to. particular communities to be

served, or the — in which the communities are to be

served. Ss

~~. ® Although obviously not in the record in this case, the fact

that Piedmont started operations with commendable prompt-

ness and has successfully continued them since is a practical

demonstration of the fact that this approach to fitness and

ability is consistent with the realities of air transportation. ©

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on. which its conclusion that Piedmont was quali- é

_ fied to operate the route was predicated (R. 611, |

; 613, 614).” Despite this, the court below, with-

out challenging the Board’ s basic findings of faet,

apparently decided that, Piedmont.’ ‘should have

producd evidence to show that it had plans ‘‘to oper-

_ ate west of.the Appalachians or over mountainous

‘terrain’’.(R. 684). ‘The court asserted “‘that proof

- of fitness, willingness, and ability to operate along

basically north-south routes parallelling” existent

_ surface travel, and avoiding mountainous terrain’’

is not ‘Sequivelent to proof of qualification to

. operate or: basically east-west routes, generally

‘at -right angles °, to the major lines of flow of

existing sur face ‘travel, and crossing large areas

of a very mountainous region’”’ (R. 685). The

court below has thus undertaken itself to make

tectinieal: judgments whieh Congress has" clearly

ee entrusted to the Board. The impact of mountain-

ous térrain, or of the direction. of air routes

or surface travel, upon the capability of an appli- -

cant to operate an air route, is a matter which

| Congress. has left to the Board and not to the

courts. In attempting itself to judge these

_ factors, the court below has in our opinion ;

» Indeed, State conceded idee the ee that Piedmont .

was fit and able. At the oral argument on reconsideration, ©

" State’s attorney stated : “We are taking the position that both

State and Piedmont are fit and able, it’s a question of which

has demonstrated in this record to be more fit, willing, and

able” (607).

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seriously invaded the domain of samen |

-action. 3

‘The court below also. held that ‘Pied was

“not an “applicant” ‘within the meaning of section

401 (d) for the route awarded ‘and that®the

Board therefore was without power to grant

the route to -Piedmont. In so holding,. ‘the court

ruled that the route aw arded to Piedmont was

more than a ‘‘modification’’ of the route Pied-.

_ mont proposed and that the ‘catch-all’ clause -

included in Piedmont’s application could not.

justify an award which represented: more than

‘slight deviations’? from the route proposed in :

its application. While this might superficially

appear to be a question which turns on the

wording of Piedmont’s application, it raises, in-

fact, a question of importance in‘ the administra-

tion of the Act since it imposes an. unwarranted

jurisdictional limitation upon the Board.

It has been a uniform practice of applicants in

new route proceedings before the Board to include

in their applications so-called “catch-all” clauses

similar to that contained in Piedmont’s. applica-

tion. By the inclusion of a ‘‘catch-all’’ Clause the

Board and the parties are put on notice that

the scope of a particular application is not limited

to the specific points or route ‘segments named

in the application, but is broad ‘enough to .em-~

brace any award that the Board may wish to

make in the general area embraced by the appli-

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cation (R. 616, 617 ) This practice ee ae the

_ fact that in a new route proceeding the number

of points-in the area that may be selected for air —

transportation, and the variations in the manner

in which they {nay be joined in a linear route,

are so numerous that the applicants do not wish

and should not be required to confine their re-

_ quests to the precise routing which they may have

_ specifically proposed.

While the precise phrasing of the “‘eatch-all’’-

clause has vatied with the applicants, the em- |

ployment of the clause has been virtually uni-

versal, and the Board has commonly relied upon

the clause in the awarding of routes ¢R. 617).

- _ As a consequence, there are now in process nu-

merous new route proceedings before the Board —

_ in. which the “catch-all” clause is an integral

part of the competing applications. If the

court’s treatment of Piedmont’s ‘‘catch-all’’

clause is allo stand, it will cast a cloud

upon these existing )\roceedings because of un-

certainty as to the scope of the. applications.

It is true that the court below has not outlawed

the ‘‘catch-all’’ clause as such, and has indicated

that the clause may be used to permit the grant-

ing of routes: “which represent slight deviations

from those proposed” (R.681). [Italics supplied.]

However, the Board may find itself in a difficult

position, for if it construes a catch-all clause nar-

rowly to exclude an applicant from selection for a

et ae:

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route, it may find its action challenged by the ap-

plicant ; whereas if it construes the catch-all clause

broudly, it may find its action challenged under the

-eourt’s decision by another applicant." It is

difficult to believe that Congress intended to im-

port into new route proceedings technicalities of

pleading, reminiscent of Baron Parke’s day,

such as are inherent in the decision of the court.

below.

The court below also erred in holding that

there was “‘no evidence’’ to support ‘‘the implied

; finding”’ by the Board that Piedmont was an ~~

applicant for the routes awarded (R. 681). The

detailed basis‘for the Board’s finding is amply

; set forth in the Board’s second supplemental

Opinion on reconsideration (R. 615-616).%°

1 Ag in the,case of failure of an applicant to adduce plans

- foroperating all of the route to be awarded, the Board could

of course undertake further proceedings in pending cases to

_ require clarification of the applications and hold further

hearings; but as we have indicated, such additional steps

, would unduly delay the already time-consuming route pro-

_ eeedings, and thereby hamper the Board’s work.

With :respect to State and Riedmont, it is’ noteworthy

> here that the Board expressly found that State had been

_ afforded adequate notice and hearing (R. 619), and this find-

| ing has not been questioned by the court below. Accord-

: ingly, it seems clear that State was afforded all procedural

_ safeguards required by due process.

_ CONCLUSION

It is oianbedticiin submitted that this petition

for certiorari should be granted. a

; Puuir B. PERLMAN,

_ Solicitor General.

Emory T. NUNNELEY, ie

General Counsel,

Civil Aergnautics radu

g ULY r 1949.

tas Na nets SPR Perr ae ayy eh

Ho PATRI El Et BONN Sen NIE RN NIRS RIE ua ce

| “APPENDIX A _

- The pertinent provisions of the Civil Aero-

nauties Act of 1938, as amended,’ are as follows: |

CERTIFICATE oF Pus.ic CoNVENIENCE AND»

N ECESSITY

CERTIFICATE. REQUIRED

: - Bie 401 (a). No air carrier shall engage

in any air transportation unléss theré is in

force a certificate issued by the [Board]

authorizing such air carrier jo engage in

*

such transportation: * *-*

APPLICATION FOR CERTIFICATE

(b) Application for a certificate shall be

made in writing to the [Board] and shall

__be.so—verified, shalt ‘shall bein such form and

contain such information, and shall be dc- _

companied by such proof of service upon

such interested persons, as the [Board]

A shall by regulation require.

NOTICE OF APPLICATION

(ce) Upon the filing of any vag applica- -

tion, the [Board] shall give due notice

thereof to the public by posting a-notice of

such application in the office of the secre-

tary of the [Board] and to such other per-

sons as the [Board] may by regulation de-

termine, Any interested person may file

with the [Board] a protest or memoran-

dum of opposition to or in support of the

2

* Act of June 23. 1938, c.°601, 52 Stat. 973; Reorg. Plan

No. IV, Sec. 7, effective June 30, 1940, 5 F. R. 2491, 54 Stat.

1235, 49 U. S.C. 401, et seq.

(21)

"issuance of. a ecettfiontg. Such eee

a" be ‘set for public hearing, and the

ass

(d) (1) The (Board) sliall issue a cer-

tificate authorizing the whole or any part

of the transportation covered by the appli-

cation, if it finds that the applicant is fit,

willing, and able to perform such trans-

portation properly, and to conform to the

provisions of this Act and_the rules, regula-

tions, and requirements of thé [Board]

hereunder, and that such transportation is

required. by the public convenience and.

necessity ; otherwise such application shall

be denied.

(2) In the case of an application for a

certificate to engage in temporary air trans-

a a

' eate authorizing the whole or any part

thereof for such limited periods as may be

required by the public convenience and

necessity, if it finds that the applicant is

fit, willing, and able properly to perform

~ sueh transportation and to conform to the

provisions of this Act and the rules, regula-

tions, and Dia reagan of the (Board)

: hereunder.

. \ ‘

; fue a 8, $. COVERNWENY PRINTING OFFICE: 1949

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