# 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%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1950 - **Citation:** 338 U.S. 572 ## Text 3 ; it E ; A B38 > ¢ 7 - Gf ‘ ete Ar ae, A, i, ay et A SO ty Ae RST Kes - ? 7 ~~ a’ ? . oe * CHART( 2 oe . .@ se Sa "1 F depart eg . Anis e FREDERICK ‘ . ° * - z - ." ‘ 4 - i . 2 e \ S 1 oF ie *’ ; Kr. Yes ‘ Vin. “f oy ie See S CINCINNATI : ee WINCHESTERG sg! (& . 4 ox 2 ‘ a ae . e r { - . \ % % * a oOnI0 ; Bie” oe : _ rane Near , '. sas CCPORTSMOUTH oo . ~ ' ~ ¢ o LURAY, MAYSVILLE Ce. 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KERSHAW F AIRMON BURGAW CORNELIA ‘ ANDERSON . x : ° \ th. HITEVILLE 7 GAINSVILLE \ WEWBERRY SS ef \ aa Aree / / ; ~, ~ see : agg —_ 7 - \ ay RICHMOND ae Sie tre a % - -~ *. “ — s-4e “ bs . B . -~ on ° - ry - ‘ VICTORIA = * NORFOLK er... 4 CHATHAM wae ABINGOON FRANKLIN — -* j iso mo en ee” é ) ‘ N.C ROX BORO ROANOKE RAPIDS . LITTLETON ~ MORRISTO ij MASCO EDENTON KNOXVILLE a" ~ PLYMOUTH WILSON GREENVILLE WASHINGTON ‘ (THFIELD BRYSON CITY OLOSBORO r™ ? : HENDERSONVILLE ap Sega A rl j _—?7 TRYON NEW BERN ‘ = oo —_ . pear eke parce te 1:0 anescatle fal Roonet —t sf a. * : ee Brechsburg. 1°” e — Sr g Crews y ra » ry \, Redtortg* ‘ “eo” ’ H : td ee Puiesh?. of 4 - ge er wythevile go =%” ——-Rechy Movant : oa = o jem - : e | | EE ao ate go: Chess City ee == Serta Eo bingdon,” a _ Mertinevill -? 2 = ae | 6 ; - §,, The Court of Appeals, in its opinion, completely and er- roneously ignored Section 401 (f ) of the Act and said de- cision of this Court. 3. When the Board in its expert lias has found that Piedmont was fit, willing and able to perform the trans- portation, may that determination be set aside by the Court _ merely because the evidence offered by Piedmont was not sufficient, in the judgment of the Court, to show its fitness, willingness and ability to perform a portion of the trans- portation which involved operations west of the Appaja- chians or over mountainous terrain? — The court below set aside the Board’s finding that Pied- mont was fit; willing and able to conduct the service au- thorized. (683-685.) In doing so, the court clearly over- stepped the bounds of permissible judicial review. | Piedmont submitted abundant evidence of its fitness, will- -ingness and ability. Counsel for State, the rival applicant, of necessity conceded to the Board that Piedmont was fit, willing and able to conduct the service authorized. (607.) Section 1006 (e) of the Act provides that no objection to. an order of the Board shall be considered by the court un-: less such objection shall have been urged before the Board. Therefore, it was error for the court below even to consider the fitness, willingness and ability of Piedmont. Furthermore, the court’s conclusion to set aside the Board’s finding was based solely on the substitution of its” own judgment for that of the Board as to the inferences | to be drawn from evidence actually in the record. The court’s previous erroneous finding (that Piedmont was not an applicant for service west of the Appalachians) was compounded here by the erroneous finding that Piedmont’s evidence could not show its fitness, willingness and ability to operate across the mountains. , ( 9 4. If all of the foregoing questions should be decided ad- versely to Piedmont, should not the judgment of the Court be a modification of the Board’s order only to the extent of eliminating from Piedmont’s certificate a few points west of the Appalachians? _ e The surgeon here has resorted te amputation at the neck to cure a disease of the foot. There hasmever been a ques- tion in anyone’s mind as to the fitness, willingness or abil- | ity of Piedmont to operate that portion of the routes lying in North Carolina and Virginia (which is the major portion of the routes certificated), or that its applicatioif was suf- ficiently broad to cover that portion of the routes.. If there _is any question as to the propriety of certificating Pied- mont to operate the westérn portion of the routes, or if it should eventually be determined that the entire route sys- . tem should be operated by some other applicant, the public interest would obviously be better’ served by remandine _ the case to the Board with the eastern portion of the cer> tificate still in effect, subject to being vacated upon further hearing by the Board. Under such a decree the Board could - permit the operation of the western segments by an exemp- tion order issued pursuant to Section 416 (b) of the Act, while further hearings were being held.- - This nrocedare would permit the communities of fiy States to conlinue to receive the benefits of an existing air transportation SYs- tem to which the Board found these communities entitled more than two years ago.- ge? _ REASONS FOR ALLOWANCE OF THE WRIT. 1. The United States Court of Appeals for the District of Columbia Circuit has decided an important question of federal administrative law which has not been, but should be, settled by this Court.. This important question involves the conclusiveness of Board findings as to the scope of ap-- - plications before the Board for certificates of public con- venience and necessity. 10 2. The Court of Appeals, has not. given effect to an ap- plicable decision of this Court. The decision in the, case of Chicago, St. Paul, Minneapolis and Omaha Ry. Co. v. United States, 322 U. 8S. 1, should have required said court to hold ® -that the Board had the power to inelude in Piedmont’s cer- tificate. points in the general area under consideration which Piedmont had not specifically asked to serve. 3. The Court of Appeals has so far departed from the accepted and usual course of judicial proceedings with re- _ spect to review of the expert judgment of an administrative body for a specialized field .as to call for an exercise of, this Court’s power of supervision. These reasons are discussed in Piedmont? s attached brief... ‘s | Z oe ‘Wuenerore, your Petitioner prays that a writ of cer- tiorari issue under the seal of ‘this Court, directed to the United States Court of Appeals for the District of Colum- bia Circuit, commanding said Court to certify and send to this Court a full and completed transcript of the record and of the proceedings of the said Court of Appeals had in the case numbered and entitled in its Docket No. 9748, Strate Arrunes, Inc., Petitioner vs. Civi, AERONAUTICS Boarp, Respondent, Prepmont Aviation, Inc., Intervenor, to the end that this cause may be reviewed and determined by this Court as provided for by the statutes of the United - States; and that the order of said Court of Appeals be reyersed by this Court. Cuar.es H. Murcuson Attorney for Petitioner, Piedmont Aviation, Inc. Stockton, Utmer & Murcuison - 1016 Ring Building - « : so a Wee Washington 6, D. C. ere ce ge aeeeen Of Counsel : : ‘sy ae 11 — IN THE Supreme Court of the United States ‘Octoper Term 1949 Piepmont Aviation, Inc., Petitioner > against STATE Auntixes, Ixc., Respondent. — oe BRIEF OF PIEDMONT AVIATION, INC. iN SUPPORT OF PETITION FOR WRIT OF CERTIORARI. : The decision of the court below appears in the Kecord before this Court. (675.) It is not yet officially reported. The statement of this Court’s jurisdiction, and the state- - ment of the case, have already been set forth in the attached petition for writ of certiorari. SPECIFICATION OF ERRORS. I. - The Court of ' Appeals erred in holding that Piedmont _was not an applicant for the routes awarded. The Board's - finding that Piedmont was an applicant for said routes was _ a finding of faet with respect to which the Court could not substitute its own judgment fer the —— judgment of the Board. : 12. Ba eae 7 pas o> > eee ey ‘The Court of Appeals erred in holding that the Board could not include in a certificate routes and points not ap- plied for by the recipient of the certificate. z 2 The Court erred in substituting its own judgment for the expert judgment of the Board and setting aside the Board's findiig of fact that Piedmont was fit, ‘willing and able to operate the routes awarded to it. | ie Iv. Me x .. The Court of Appeals erred in directing that the Board’s ‘order be completely set aside rather than modified only to the extent required to conform to the principles announced by the court! “ decision. : ‘SUMMARY OF ARGUMENT. The Board has been endowed by Congress with unusually broad powers to establish the route pattern, and.to control -the development, of an air transportation system which now blankets the nation and ‘also encircles the globe. A narrow circumscription of these powers, in the manner of the court below, contravenes the clear Congressional intent in dele- gating the powers, iand furthermore, denies to the Board. the reasonable freedom of act on which: saa tite aan agency must have: i 19 The solution of this question of fact in each ease mast be based upon factors such as the length of the mileage of the ” extended service, the amount of additional capital required to operate-it, and the operating problems to be encountered, No fixed value can be assigned to any of these factors, and their individual weight and aggregate effect necessarily involve the exercise of expert judgment based on speecial- ized knowledge and experience in a field which Congress has entrusted to the Board. In the exercise of its judgment, the Board expressly found as follows: ; ‘*Piedmont’s application, when viewed in the light of all pertinent factors, shows that this carrier was, within the meaning of Section 401 (d), %& applicant for the routes awarded it.’’ (616). ae This finding cannot be set aside by the Court. The case falls squarely within the rule announced by this Court in. the case of Securities and Exchange Commission v.C he nery Corp., 318 U.S. 80: : > © “If the action rests upon an administrative deter oe exercise.of judgment in an area which Congress has entrusted to the Agency—of course it must not be set ‘aside beeause the reviewing Court might have made a different deteqnination were it em- powered to do so.”’ (318 U. - S. at 94) Upon the foregoing we submit that Piedmont was, beyond any question of doubt, an applicant before the Board for the routes certificated to it. Its status as such was not properly subject to challenge by the Court. * ¢ = ? — POINT IL. The Board clearly has the power to include in a certificate the obligation to serve points which the applicant did not ask to serve in its written application. It was error for the court below to rule otherwise. Assuming, without saseding: that Piedmont’s applica- tion did not request operations to the few points west of the Appalachians which were not included in its route pro- | posals, nevertheless the Board was not thereby precluded from requiring service to these points. The decision below would prevent the Board from requiring such service ‘md would thereby frustrate the fundamental purposes of the Act. For example, the result would be that after an inves- tigation over a period of years had demonstrated a public need for air transportation from Cincinnati, Ohio to Char- lottesville, Virginia, along with many other pints, and after one or more applicants had been found fit, willing and able to perform satisfactory service in the area, all applica- tions would have to be rejected and the investigation begun all over again because the applicants-who proposed to serve. _ Cincinnati did not propose to serve Charlottesville and : those who proposed to serve Charlottesville did not pro- pose to serve Cincinnati. It was to prevent such a ridiculous result that Congress made express provision in the Act that the Board should not be bound to issue a certificate upon terms in form and . substance as proposed by an applicant, but might add there- to such terms and, conditions as the public interest might require. Section 401 (f) of the Act provides that: ‘¢ ) there shall be attached to the exercise of the privileges granted by the certificate . . . such reason- able terms, conditions and jimitations as the public in- terest may require.’ Ww hat could be more reasonable in the public interest than fo condition the privilege of operations to points requested upon the assumption of the obligation to extend the service » 21 to other points in the same area which the Board finds to need the service, and whieh the Board finds the applicant - fit and able to serve? oe Any doubt which might otherwise exist that the Board has this power has been laid to rest by the decision of this Court in the case of Chicago, St. Paul, Minneapolis and Omaha Ry. Co. v. United States, 322 U.S. 1. That case arose under Part II of the Interstate Com- merece Act, known as the Motor Carrier Act, particularly under Sections 207 (a) and 208 (a) thereof. | Section 207 (a), like Section 401 (d) of the Civil Aeronautics Act, em- _ powered the Commission to issue a certificate, ‘authorizing _ the whole or any part of the operations covered by the ap- plications.’? Section 208. (a), like Section 401 (f) of the, Civil Aeronautics, Act, provides that there shall ‘‘be at- tached to the certificate such reasonable terms, conditions and limitations as the public convenience and necessity may ‘from time to time require. . .”’ In that cfse the motor earrier applicant had actually, stated its unwillingness to serve numerous points, and had no ‘‘eatch all’’ clause in its application. Yet the COamnis- sion issued a certificate authorizing service to the points in question, and the applicant accepted the certificate. On review this Court said: “*The question of law in the case is whether the Com- _ mission on its finding need for such service had power to authorize service of intermediate points not asked for by the applicant. The applicant has a¢cepted and is defending the grant, but the competing rail carriers complain of it.’’ “(322 U.S. at 3) This Court then held that under the authority conferred by Section 208 (a): “Tt is clear that the Commission on the facts found | had power to include in the authorization provision for service greater than the carrter had. asked,’’ (322 U.S. at 4) 22 f The Court of Appeals, in its opinion below, failed to men- . tion said Section 401 (*) »r- said decision of this Court. On the contrary, it saia “nt this question of the Board’s power under the circumstances was ‘‘a question not hith- ~ erto posed before any other. court so far as we are aware.”’ (682). .The court’s failure to consider. the applicable sec- - tion of the statute and the applicable decision of this Court permitted it to fall into the error which it has committed. POINT III. The Court of Appeals has erroneously substituted its own judgment for the judgment of the Board by finding that Piedmont is not fit, willing and able to perform \the trans- portation certificated. The finding of the Board stood un-’ challenged before the Board, and therefore is not subject’to review. Furthermore, this is a matter peculiarly within the specialized field entrusted to the Board and the een’ of the Board thereon is conclusive. : The court. below reviewed the Board’ s finding of Pied- mont’s fitness, willingness and ability, and ruled that this | finding was arbitrary, capricious and without any evidence to support it. (684). This. is perhaps the most glaring error committed by the court. For the court to set itself up as having ability superior to that of the Board as to what at- ‘tributes, characteristies and special skills shall constitute evidence of an applicant’s fitness and ability to operate an air transportation system over a given route, is to negative the whole purpose of Congress to entrust this field to the - specialized experience and expert knowledge of the Board. | In the first-place, it is to be observed that the court based « — - its conclusion upon a most limited and restricted view of ‘the evidence and a positive non-legal standard adopted by itself as to what evidence the Board may consider on the - point. There has never been any question but that there was adequate evidence to establish Piedmont’s fitness, will- ingness and ability to conduct operations serving all of the certificated points in Virginia and North Carolina, where 23 the major portions of the routes are located. Jn fact, it was conceded by counsel for State that Piedmont’s qualifi- cations had been amply shown for all the routes awarde rd, When asked by the Chairman of the Board the specific question whether State was taking the position that Pied- -mont was not capable of operating - routes to be certifi- ‘cated, counsel stated: “We are taking the: position that both State und Piedmont are fit and able; it’s a question of which has demonstrated in 1. this record to be more fit, willing and able.’’ (607) - : _ ‘The real basis of the court’s holding is not that there was a total absence from the record of Piedmont’s fitness, will- ingness: ‘and ability, but that, because Piedmont had not spe- cifically asked in its application to serve Louisville and the other points west of the Appalachians, the Board could not properly consider any evidence offered by Piedmont of*its . fitness, willingness and ability in:a case where service to” those points was to be included in the certification. - This is made perfectly plain by the’ statement at page 20 in State's reply brief below with reference to its counsel’s admission of Piedmont’s qualifications: oo it is plain that counsel was endeavoring to make the point that an abstract finding of fitness, will- ae ingness and ability could be of no avail to Piedmont as Piedmont had not applied for the routes im question. Counsel continued the line of thought with the sugges- tion that if the Board ‘selected American Air Lines for a route that they didn’t apply for and didn’t put in | any evidence for and weren’t an applicant, I would say that that didn’t belong to them no matter aided able they . were.’ ’’. as It is alas made clear by the fact that the Court, in its opin- ion, did\not find absence of evidence of fitness and ability of Piedmont generally, but only with respect to the points ‘‘west of the Appalachians and over mountainous terrain,’’ | (684). 24 . | 3 e This finding by the court is all the more remarkable be- cause there is not a séintilla of evidence in the record that operations extending to Cineinnati,and Louisville required ~ any other, different or additional qualifications by the op- erator than were required for operations to Roanoke, Vir- vinia; Princeton, Bluefield, Beckley and Charleston, West Virginia; Asheville, North Carolina; and Bristol and Knox- ville, Tennessee: service to all of w hich was specifically pro- posed by Pi edmont. A glance at any appropr iate topo- pars il map demonstrates that-service to all of these lat- ter pointsanvolves operations over ‘‘mountainous terrain,’’ such as that which the court, without any foundation in the evidence, seemed to regard as a formidable hurdle for air transportation to surmount. Where has the court acquired the expert knowledge to enable it-to judge whether or not the technical ability to cope with elevations of four to five thousand feet is insufficient to cope with elevations a thou- sand or so feet higher? The court was obviously transcend- ing its proper spheré of authority when it-assumed to char- acterize as absurd the position taken by the Board’s coun- sel that the same fitness and ability which, would qualify an applicant to operate from Hagerstown to Norfolk would | _ also qualify it to operate from J acksonville to Miami. (685). Instead of pointing out wherein it considered Piedmont’s — evidence of fitness, willingness and ability insufficient to show its ability to operate the routes certificated, the court below concentrated on a single staternent of Piedmont’s counsel. (684) ‘This statement pointed out that one of Piedmont’s routes followed ‘the Shenahdoah Valley and crossed the Blue Ridge Mountains only ata point where they. were very low. The court below would have us believe. that this was a fair characterization of all of the operations concerning which Piedmont offered any evidence of its fit- ness and ability, Reference to’ the-record where this state- ment is set forth (553) makes if*clear that this remark of counsel was directed only to a single route proposed by Piedmont, that from Columbia, South Carolina to Wash- ington, and was not intended to be offered as a description 29 of Piedmont’s entire proposed route system. The remark was introduced by the statement at the top of the cited page: “‘T would like to discuss first the proposed route from Columbia, South Carolina to W inston-Salem, and: fronr . W inston- Salem to Washington.’’ (553) - The court below overlooked and failed to notice the fol- lowing pertinent.items of evigence put jfto the record by Piedmont which were most certainly fonsidered by the Board to be relevant to Piedmont’s fitness and ability to conduct operations to points west of the Appalachians and _over mountainous terrain: (1) As shown by flight ne of sak? four of its pilots, - Piedmont had conducted at least 28 actual flights from Win- ston-Salem, N. C., to. points west of the Appalachians, to wit, Cincinnati, Ohio; ; Huntington-Ashland, Charleston and ‘Beckley; West Virginia: and Middleshoro- Harlan, Ken- tucky. (292) (2) In addition to the flights. just eatcued. the same pilots had flown at least 93 actual flights from Winsten- Salem to points such as Bristol, Asheville, Knoxville and Roanoke, all of which involved: aperations over mountain. one terrain. (293) festly in the public interest. It would mean the 28 cities presently certificated would not be deprived, during a re- investigation by the Board, of an existing efficient public. . service which all parties agree that they need. Ifa portion of Piedmont’s certificate were left in effect, the Board could, under Section 416 (b) (1) of the Act, provide by an exemp- tion order. for the continuation of service to the other cities involved while it re-examined in accordance with the prin- . ciples announced by the Court the question whether Pied-. . mont, State, or some other applicant should operate all or any part 6f the presently certificated routes. Under. the order of the court below, the existing service would appar- ond * s] 4 — \ cores ers ff . ently be destroyed since there is no provision in the Act by Which Piedmont, without some existing effective certificate, could receive the mail pay upon’ which its economic exis- tence as a carrier is dependent. Such a modific: ition. of the order below could not injure State since i no event could State secure a certificate until further proceedings could be conducted by the Board, ; } Modification of the order below.as here proposed is re- quired by the principles announced by this Court to govern the conduct of the courts in their function of reviewing administrative orders. In Addison vy. Holly Hill: Fruit Products, 322 U.S. 607, where the Administrator had made a determination found invalid by the Court, this Court said: : “But that leaves the difficult problem of the proper disposition of the case. It is our view that the case should be ‘remanded to the district court with instruc- tions to hold it until the Administrator, by makina a valid determination of the area with all deliberate speed, acts within the authority given him by Congress. ‘*Suech an adaptation of court procedure to a remod- eling of.the situation as nearly as may be to what it should have been initially is not unprecedented. . Such was essentially the procedure which was devised to "4 ravel the skein in United States v.. Morgan, 307 U. 183, 83 L. Ed. 1211, 59 S. Ct. 795.- The Court did: at feel itself balked by the kind of considerations that seemed controlling to a Baron Parke. eThe creative an- alogies of the law were drawn upon by which great equity, judges, exereising imaginative resourcefulness, have always escaped the imprisonment of reason and fairness ea mechanical concepts of the common law.’’ (322 U.S. at 618, 620) In that case the Court re-emphasized the principie pre- _ viously stated in the Morgan case as follows: OS ce construing a statute setting up an adminis- trative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each-acting in the performance of its preseribed statutory duty without regard to the appropriate func- tion of the other in securing the plainly indicated ob- - 28 - -Jects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should re- - peat. in this day the mistake made by the courts of law when: equity was struggling for recognition as an ame- liorating system of justice; neither can rightly be re- garded by the other as an alien intruder, to be toler- ated if must be, but never to be encouraged or aided by the other in. the attainment of the common aim.’’ (322 U. S. at 621) We submit that such a modification as we propose is clearly indicated by these principles. The decree below, without modification, plainly violates these principles to the great detriment of the public interest.. CONCLUSION. The Court of Appeals, in its decision below, clearly over- stepped the bounds of permissible judicial review. It com- _mitted serious error at the outset when it substituted its own finding of fact for that of the Board as to the.scope of - Piedmont’s application. It then intensified the error by completely ignoring a decision of this Court which should have demonstrated to it that the Board had full power to issue the certificate to Piedmont. Further, the court below committed glaring error when it overruled the Board’s ex-.- pert judgment of Piedmont’s fitness, willingness and abil- ity. Following all this, the court entered a decree which is unreasonable éven in the light of its own rulings. This tragedy of errors clearly calls for this Court to grant Piedmont’s petition for a writ of certiorari. _ CHaries H. Murcuison Attorney for Petitioner, -Piedmont Aviation, Inc. Stockton, UtmMer & MurcHIson 1016 Ring Building . Washington 6, D. C. Of Counsel --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0225%3A09. Public record. Not legal advice.