# Petition for Writ of Certiorari — CAB v. State Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0225%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1950 - **Citation:** 338 U.S. 572 ## Text INDEX Page Opinion below--.-_..-.-:----.----.--.-- aoe adeuucs Sapte 1 SUTIN oi ie ok ceca hicaneccces Lipak eae need oi . 2 pogy ai, ee Oh See AAS PRO OP POD pith arin a ack algae 2 URNS NONI os oo oi i we een np eeccce clue. ce cus 3 RA NONIOIE oo a alc ee cane ct cnet Oeoveeane a ES Sag Specification of errors to be urged. === ae -- aa. ate de (10 Reasons for granting the-writ_./.....--..------------------ aed Conclusio 6 aw ween nee Sh - 4-2 ----------- oa Hint aaa om ae Bes AT RR Re eA Darter nee re ocr ag eran SOMETTESSD PEER 21 ‘eppeie Bo 8 SARI Se ret Bo oP 23 - 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 OG, SE CO oe ok ce i cee ake sl aea hi 21 OO Pe OO axis ic Fees OR. WEA NOs cddnenosoknckukdcksdussnsnsowucsiwwe 17, 22 | (1) x | ~ 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 COMPARISON BETWEEN RC OF || APPLICANTS ( VEEN ROUTE AWARDED BY BOARD AND. PROPOSED ROUTES SANTS CONSIDERED FOR AWARD OF BOARD'S ROUTE t PROPOSED ROUTES OS : / . é * - . . i ~ = T Ww HAGERSTOWN ag Une a OWN | - ei ; 2 : ~ 7, No sd = ) Gis - A ° MARTINSBUR FREDERICK MORGANTOWN © = MARTINSBURG SA Frevenicx ‘s SG SAF REDERIC o é | eg ; t : - e is } 3 ‘ ee tN / oe _*% - | . ie Sean af | J eMtcaco via | a s WINCHESTER es mNe oe : ; | COLUMBUS 8 : Wiis. CLARKSBURG |; feted \ FORT WAYNE a ae % , - oe . *.,, “WASHINGTON FRONT ROYAL = WASH ead : a a a a *e, . - é 7 : — CINCINNATI-® . ™~ eiminet “SQ ELKINS : oo we. ‘ : | | | : | | uni. COVINGTON “0 see CaaS , te | _, COVINGTON : : : 7 , eee ° ss ie : : di ° : PORTS MOUTH : : : narrisonaurc £ <9 p : : © 5 * A a . HARRISONBURG a : a | ! Se 2 v a see Lf ey F Cc MAYSVILLE r 1 FREDERICK S@URG =e / a J — —_—- * a ; es ; : [ { « * r ST. LOUIS i ts es ce ASHLAND eastanbluntadas CHARLES TON-DUNBAR : f 4 ; ae : : t | WAYNES- 4 % pine. : : staunton! a : aires RO 2k RLOTTE SV 7 ik 3 : ° HA i : ee : ~ : = WARLOTTESVILLE : sched oats ‘ r4 SA . ae : ~~ S . - ere: - ‘ e 7 me b Aj eae ° a LOUISVILLE : oe. Sees ‘ - : ~ : ORGE- = “~ ‘ 2 ; ee L EXINGTON- FRANKFORT ° \ CLIFTON FORGE- « Ag — 1 STON : 4 4. : : ; $ P | COVINGTON 5 ae = = . 4] RICHMOND Ee —— | EVANSVILLE- : | ~TEXING- . A . oe syne ? HENDERSON : : sity oe BECKLEY, 4 TON ores far \. — {® oe: > \\witulaMson ae . y Aa aN ~ ° FARM- PETERS- . ses | * 4 : il FARM- —=—- PETERS - “Sg oj —— | N i He : \ re : ~~. VILLE. BURG aw CAPE CHARLES ° 5 \ OANVILLEY | : ee 2 ; * mee thE BURG ay — rT . 4 och aad \ 54a \ . VILLE 4 B \ ROANOK oe j =< = A , S; AGL ENDALE : : GE . — SNES SE | : ’ ; ~ % BLUEFIELO-PRINCET = AWS i >o : : CAPE GIR ; SZ ARO : x‘ -. Z\\\\N ? i NC! : master ae % AROEAU MADISONVILLE AZARD : ~ aA :\\N ‘ f- Pa : . CAVE : Nf 2 \\T u -—— : \ / — J MORSE CAVE nisieaaek “us LONDON- * : ae : i r LS a aest ° “SUFFOLK 4 ; " SOMERSET CORBIN < : 7 i . o ~ \ / : , ASGOW 3 p= =o” Bee . MARTIN ’ : ! ce hes a PADUCAH. sowinc creen\ a : : fy j : wiLteAWoan. | ; : A ge a :. f/f ; i GaLax : oy ' — — —0 : | ; E : Cha : 3 f° | my we / & 7 ae / : Gf) ELIZABETH CITY ; ; | 7 “Ns 3 7 1 “4 CAMP CAMPBEL SRS | HoPKiNsviLLE- pe eee Nel BRISTOL- JOHNSON CITY- | “WY ¢ = eS, y ROW CLARKSVILLE te | KINGSPORT aoe, (7 ) IFT Sor ‘ . : . ‘ | 4s ay } Aggy o* Ys s¥— 77 JJEDENTON . aa MOQRRIS- R a ae = “ ay] oh. ow | ROCKY 7 / 3 GALLATIN : i€ : | - TOWN © , e : : . +f Ow 3 ¢° MOUNT =~ ; CARTHAGE ~ : : % fA? ° > ~ * s, few JL PARIS wh MONTEREY se iti Vs : ete _ On ==. Spe / iC : e psceasmto MONTEREY KE: : oo” Ss: : \n>" 6h iG ; yt i ae P MC KENZIE : COOKE- Q es . ; ‘ Q nie eNSE YY Sie “~~ . 5 NASHVILLE VILLE ROCK- “NOXVILLE ee oe ee 0 : STATES- 77 ~S x V4 20, PRo. 4 ~oN wit = ; MILAN : DICKSON ; ann ° 00D ‘ef is VILLE : “LI ied g Ys Q — — — Z LR p WAVERLY ; ay OO watgente nc ° : ° a7] SALIS-“YZ4 / \ we 5K SMITH en = oro MH, 48H, 7 ‘ ~ . CROSSVILLE ny er aEe. LENOIR : o of o> BURY \ a FIELO S oro Nyy 8 Lie NGp & MHUMBOLOT , FRANKLIN . 3 : city 3 . fF frre 7 we 4: \ 40r Le ‘ 3 y MURFREESBORO : tin. eats ie Py or - : : ry oe | ae me : = , 7 rd DUNN Pia __ CoLumBia d . . 3 as <= € b:/, + ; a. A | aye, ~. Som foe / lowenunst- Digs KINSTON == NEWBERN | : ~ ‘ sACKSON oe Tee y ‘ "ER ont 4 \) pas -s ee ig KINSTOKN "= oo hima 1 SOUTHERN PINES- - ~ / , | smeLey- d . MANCHESTER mason” 1 ein ca? s ABERDEEN Z ° \ | ! ‘ f VILLE , Fa | ° Pa ye ro) o~=- ‘ ; . : > : WE . . . 1 == - ‘~ —_ Q rER- CLEVELAND $ [a ort S$ ~f 44> ef i Fay A ° T AHOMA : ° < F, » € MOREHEAD CiTY- WHITE VILLE ia cae — WINCHESTER CLEVE. AN E WANEE Ps * Sa “Reg +f Uf as er Sf 4 Gare Gi o,// Te, -_——— = BEAUFORT OO it ‘ 4 = r ° e . = ’ —-- - —-_<—-—— —- ™ : : . OSE WANEE , / "\ \ eq 2 — Apap —T : / he oe ewe of Sonne Ay x . 2 JACKSONVILLE ei. E ° TTANOOGA GREENVILLE * ° / : 5 Ny a , i % "9, G. LUMBER- \ CHATTANOOGA ? g iX. “ / > * . — LUMBER- WS Q seal %o / TON 9 ° A . : 1 ANCASTER o TON ‘ ASTE ae 7 * «< * . : - = n . oe / P ‘ ae va i 5 / eo $ 4 — ‘ oem wn | Sila She Wayas 1 aneteaks edible Daal ce rak aN Se gE : 5 = =~ * S ig 7 mn kouncacat” of sae rb Ag NASHVILLE °- oKe: — Ei : v . wet Sng KG ai ing i; \ Fa i ; Om, =—— =O / 4 — WAVERLY raseine - RocK- KNOXVILLE caciunw aie . STATES- Z- “ i » Beane Pong Ro.” / <3 er u “~ en Sop \YZ ' . : yOOD : me Sie VILLE . “sl / , ~ SmI TH- 7 Cae. ~ bd *01ny;:0- J TARR —_ FRAWKLON CROSSVILLE , : [ted ott Sa / 3 FIELO ZA, 7 ono “Mb, 4 /tW Se SmiTH- 7 Che, ] F & LENOIR - H ? jo" 4 r 058 ~ a FIELO 7 Ny S; Q MURFREESBORO : ; City : : a - ror? Bet 3 \ 4or / \ ~ <0 gore ky ING» ; @. ? Ps e * | U r. wor® 4 ot? # COLUMBIA : 3 ors ° 6° oS DUNN af 7 b- We Se | : = a DUNN # VILLE 3TER paste” ie \ GA | SOUTHERN PINES-/ _“%\ 5 OO” / BAS PINE HURST- ~al KINS TON = NEW BERN a VILLE 3 | ABERDEEN i . | F SOUTHERN PINES: ee ) ‘ TULLAHOMA ! 4 : “ - | ay pit Sait PULASKI A _ ue ee op STER CLEVELANO wate : No ORG 4 5 Na an ® ‘ ‘os F Ga ¢ om > a < v & d / _ é ~\ \ Se % Sy 72, Sao ad rP - 4 ve, : MEMPHIS FAYETTEVILLE EWANEE . o> ‘a So, 4, e , — 4 Evi, —_—--s§—- "e S47 er >—, / MOREHEAD CITY : : ° \ | a. ya ~~f ocx-| /4N=— fons ae JAC = 4.” aa afm BEAUFORT “CHATTANOOGA * : *] > 7 fh Hite Ng VO, “gt, a a SE ae : cae = 5 ia ie en oe Pf ACKSONVILLE- ATTANGOGA GREENVILLE r. PAL % ye LUMBER- g vd Par \ . *. ’ a / TON : ; - \ SHEFFIELO- , o fy ME , CHESTER | Fo J 7 i\ A oto, * . 7 \ i ‘< TUSCUMBIA mF or. a F : “. - 7 4 Fo 7 \. 1} \ 6 : \e ¢ aS Ss % . 4 aN DECATUR ar ais Fa — % . ey ; $ Pa aan darsnti ney ! 1 “a $ X\ / p~~ ¢/ ‘ z WILMINGTON _— ° : 5 @ ". i \ —— ‘ . CAMOENS , Q ee X Wit MINGTON es ‘ ; Ps i * t : 3 lle “4 : - / f \ ~ ° pag * ;GREEN- 0 VAS: : iii, / J wood = CeANY ° . _ GAINESVILLE Ump, Ne ‘ 7 N a ° Bi4 en a 4 oot aR <=> le ¢: ao" ae ° BN Ne me em YSUMTER 2 pod ° de BO age. eee ‘ f ais . MYRTLE BEACH a ; % it THENS - r ae : MYRTLE BEACH ‘ . \ fy? 7 ® * ‘Xo = % . ; * ad ° 3! y ‘ | h c © ATLANTA * S 3 4 ORANGE- : reN a . : e ° R o> ° : 2 ° r ; ee \ AUGUSTA : ® H = GEORGETOWN $ “s if : FF €: ’ GEORGETOWN 3 KEY Shee e ° : . 0% : 7 ~ ° - 7 > SEEN REREMIRET ; Pa 4 4 on "Qi... = & 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 S . , 5 gt ff. Po t Ue aN yh ° r ie if Q A .; e , Zz 7, : : ; mt PA Q yy, F ‘ jg : JACKSONVILLE : | fo ? 4 / if A A CIVIL AERONAUTICS BOARD .; : Ley rare soe 10 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 11 (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- / / 12 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- ¢ ‘no 13 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 e 14 4 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 “ee ve 15 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. © ie] a) 8 H - 16 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). aes 4 ee ¢ ee 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- | - m% ern s We | 18 > 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: — 19 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 “yS 3 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0225%3A01. Public record. Not legal advice.