Opposition Brief — Chicago & Southern Air Lines, Inc. v. Civil Aeronautics Board

FILE COPY FILBD~

IN THE

SHupreme Court of the Anited States

October Term, 1950.

No. 235

Cuicaco & Soutnern Ai Lines, Inc., Petitioner

v.

Crvi, Agronavutics Boarp, Respondent

Resort Arrives, Inc., Intervener

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit.

BRIEF OF INTERVENER IN OPPOSITION.

L. Wetca Poove,

( James F. Bex,

730 Southern Building,

Washington 5, D. C.,

Attorneys for Intervener.

n

Of Counsel:

Pocus & Neat,

730 Southern Building,

Washington 5, D. C.

Puss or Braonw 8. Ananms, Wasnineton, D.C.

ee Pte ASD ES PEAT IG ACER, ONE RAN RPL EP CMA

INDEX

Page

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CITATIONS

CASES:

American Power & Light Co. v. Securities and Ex-

change Commission, 325 U. S. 385 (1946)........ 12

Braniff Airways v. Civil Aeronautics Board, 147 F.

BO De PUA As Bis SOD 6 oka ccs vnesonsers sce 11

Colonial Airlines v. Adams, et al., 87 Fed. Supp. 242

Ce Se MEE ys 50 Whee ex eesa hee heneeeene 9, 10

Chicago & Southern Air Lines v. Waterman Steam-

ship Corp., 333 U.S, 103 (1948) . .2, 4, 5, 6, 7, 8, 9, 14, 15

Marshall Field & Co. v. National Labor Relations

woere, TIS UU. TH. Bae CPG) oan ves ccvcvcivess 13, 14

Pacific Gas ¢ Electric Co. v. Securities and Exchange

Commission, 127 F. 2d 378 (C.C.A. 9th 1942), af-

firmed S34 U. BS. SOG (10846) . ow... ccc ccccvccces 14

Phillips v. Securities and Exchange Commission, 156

Fs men Wem COSA. Be BOG) wo voce cacwccencucces 14

Sparks, et al. v. Ciwil Aeronautics Board, App. 2nd

Sta Se vin as , decided August 14, 1950........ 6

Todd v. Securities and Exchange Commission, 137 F.

Pee ee rs een 14

Trans-World Airlines v. Civil Aeronautics Board,

et al., App. 2nd Cir. No. ...... , decided August

rary pcre rey ee rere rr re: 6

—e

li Index Continued.

Page

STaTuTEs:

Civil Aeronautics Act, Section 402, 52 Stat. 991

(1938), as amended, 49 U.S.C, 482 (Supp. 1949).. 10

Civil Aeronautics Act, Section 801, 52 Stat. 1014

(1938), as amended, 49 U.S.C. 601 (Supp. 1949) .3, 6, 13

Civil Aeronautics Act, Section 1006, 52 Stat. 1023

(1938), as amended, 49 U.S.C. 646 (Supp.

a er eee rr reer 2, 5, 11, 12, 13, 14, 15

MIscELLANEOUS:

Civil Aeronautics Board, Rules of Practice, 14 C.F.R.

oe ce te uals cass sv eevee epee tign 2, 4, 13, 16

H. R. 5771, 80th Cong., 2d Sess. ................4.. 4,17

IN THE

Supreme Court of the Anited States

October Term, 1950.

No. 235

Cuicaco & SourHern Arr Lines, Inc., Petitioner

v.

Civiz Azronavutics Boarp, Respondent

Resort Arr.ines, Inc., Intervener

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit.

BRIEF OF INTERVENER IN OPPOSITION.

OPINIONS BELOW.

The per curiam order of the United States Court of Ap- .

peals for the District of Columbia Circuit (R. 71-72) dis-

missing the Petition for Review of the order of the Civil

Aeronautics Board (R. 42-43) has not yet been reported.

PRIA EE I ; ENE SII ——

Fo ne ale a as OO AS

2

JURISDICTION.

The grounds upon which jurisdiction of this Court js

invoked are set out in the Petition for Writ of Certiorari

at page 2.

QUESTIONS PRESENTED.

1. Whether the holding of this Court in Chicago & South-

ern Air Lines v. Waterman Steamship Corporation, 333

U. S. 103 (1948) precludes judicial review of the order

involved in this proceeding, which completely emanated

from the President in that it only reflected a directive of the

President contrary to the recommendation of the Board.

2. Whether judicial review of a Petition for Review filed

with the Court of Appeals for the District of Columbia

Cireuit on August 8, 1949 is precluded by the fact that it

was not filed within sixty days ‘‘after the entry of such

order’’ of the Civil Aeronautics Board on June 1, 1949, as

specifically required by Section 1006(a) of the Civil Aero-

nauties Act.

3. Whether judicial review of the objections to such

order which Petitioner now raises is precluded by the fact

they were not raised before the Civil Aeronautics Board

at any time as required by Section 1006(e) of the Civil

Aeronautics Act although there was ample time to do so in

the form of a Petition for Reconsideration to the Board as

authorized by its Rules of Practice. :

STATUTE AND RULE INVOLVED.

The pertinent statutory provisions are cited in Appen-

dix A of the Petition for Writ of Certiorari. The pertinent

Rules of Practice of the Civil Aeronautics Board are set

out in Appendix B, infra, page 17.

3

STATEMENT.

Section 801 of the Civil Aeronautics Act’ provides that

the ‘‘issuance’’ or the ‘‘denial’’ of any certificate authoriz-

ing an air carrier to engage in overseas or foreign air trans-

portation ‘‘shall be subject to the approval of the Presi-

dent’’. Pursuant to this Section of the Act the Board sub-

mitted a recommendation to the President that both appli-

cations in a consolidated proceeding before the Board en-

titled the ‘‘Skyeruise’’ Case, Docket No. 2377, et al., filed by

the Intervener, Resort Airlines, Inc. (Resort), and Amer-

ican Air Export and Import Company (AAXICO), be de-

nied. The President approved of the recommendation that

AAXICO’s application be denied and disapproved the ree-

ommendation that Resort’s application be denied. Al-

though the Act does not require the President to state his

reasons for approval or disapproval of Board action, he

returned the Board’s recommendation with the advice (as

reported without quotation by the Board) that ‘‘for reasons

affecting our relations with foreign countries and in the

interest of our national security, it is desirable and proper

that Resort Airlines, Inc. be granted temporary authority

to engage in foreign and overseas air transportation sub-

stantially in accord with the recommendation of the Exam-

iner’’? with certain exceptions not here relevant. (R. 41)

Acting pursuant to that Presidential directive under See-

tion 801 of the Act, the Board on June 1, 1949, entered its

revised order, together with an explanatory opinion, carry-

ing into effect this decision of the President (R. 36-43) and

submitted it to the President who approved it on June 9,

1949, by signing it as ‘‘Approved’’. (R. 43) That order,

which Petitioner now seeks to have reviewed here, granted

a temporary certificate to Resort authorizing it to engage

1The Civil Aeronautics Act will hereafter be referred to as the

‘* Act’? and the Civil Aeronautics Board will be termed the

“*Board’’,

4

in foreign and overseas air transportation limited to round-

trip, all-expense escorted tours between eight points in the

United States and certain intermediate points in foreign

countries and United States possessions, subject to certain

further limitations. (R. 43-45) The order further provided

that the certificate would have a life of five years and was

to become effective 60 days after the date of its approval

by the President unless such effective date were extended

by order of the Board prior to such date either on the

Board’s own initiative or upon the filing of a petition for

reconsideration of the Board’s order of June 1, 1949, (R.

45) (Petitions for reconsideration are authorized by the

Board’s Rules of Practice as set out in Appendix A, infra.)

Although such petitions were filed by several of the other

party intervenors, the Petitioner herein failed to file any

petition with the Board for reconsideration of the order

complained of herein; and it did not at any time ask the

Board to extend the effective date of the certificate or to

consider the objection that the President had exceeded his

statutory authority—a contention which has never been

presented to the Board. On August 4, 1949, the Board by

Order (Serial No. E-3117) denied the said petitions for

reconsideration and the certificate issued to Resort became

effective, according to its terms, on August 8, 1949. On that

date the Petition for Review was filed herein. (R. 53)

On May 8, 1950 the Court of Appeals for the District of

Columbia Circuit denied Petitioner’s Petition for Rehear-

ing and Reconsideration of the per curiam order, dated

January 18, 1950, dismissing the Petition for Review, and

indicated that its action in such dismissal was on the au-

thority of Chicago & Southern Air Lines v. Waterman

Steamship Co., 333 U. S. 103 (1948). (R. 71-72) The Court

also stated that it had taken judicial notice of the fact that

H.R. 5771, 70th Cong., 2d Sess., died in Committee. (R. 71)

This bill, set out in full in Appendix B attached hereto, filed

March 8, 1948, and referred to the Committee on Interstate

and Foreign Commerce, was designed to amend Section

5

1006(a) of the Act to authorize judicial review of orders

of the Board affecting the rights of domestic air carriers

to engage in overseas or foreign air transportation.

ARGUMENT.

1. The President’s authority to approve an order of th

Board granting a certificate for foreign air transpor-

tation was exhaustively considered by this Court

the Waterman case. The Court of Appeals for the

District of Columbia Circuit was clearly correct in

holding that the Waterman case precludes judicial re-

view of the order of the Board approved by the Presi-

dent, carrying into effect a decision made by him,

involved in this proceeding.

Petitioner presented to the Court below for review an

order of the Board which is not only squarely within the

holding of this Court in Chicago & Southern Air Lines v.

Waterman Steamship Co., 333 U. 8. 103 (1948), but repre-

sents an even stronger factual situation than was presented

there. The Waterman case held thet an order of the Board

subsequently approved by the President was non-review-

abie since ‘‘whatever of the order emanates from the Presi-

dent is not susceptible to review by the Judicial Depart-

ment.’? Idem, 112. The order in that case coincided with

a recommendation of the Board that Chicago & Southern

Air Lines be certified for a route in the Latin American

Area. In the present case, however, the President disap-

proved of the recommendation of the Board that the appli-

cation of Resort be denied and directed that a certificate be

issued to it. The order which Petitioner complains of

herein, therefore, completely ‘‘emanaies from the Presi-

dent”? since it reflects purely and simply the directive of the

President, which was contrary to the recommendation of

the Board, and is unquestionably within the scope of the

Waterman case holding such orders to be non-reviewable

by the Judicial Department.

Sparbanas saa teat fale tals set sentence a hl a

j

4

i

f

Petitioner seeks the issuance of a writ of certiorari from

this Court on the grounds that the factual situation in the

Waterman case is distinguishable from the instant case be-

cause its contention that the President has exceeded his

statutory authority under Section 801 of the Act by (1)

specifying the particular carrier to render the air transpor-

tation which he considered to be in the national interest,

and (2) designating such carrier without the benefit of a

finding by the Board as to its ‘‘fitness, willingness, and

ability,’’ is an irregularity within the meaning of the intro-

ductory phrase of the Waterman case opinion, which speaks

of ‘‘proceedings not challenged as to regularity.’’ Idem,

105. The question before this Court at this time, therefore,

is whether the court below was correct in applying the

Waterman case in view of this contention of Petitioner.

This demands a consideration of whether this allegedly

new element injected by Petitioner takes this case out of the

‘*broad sweep of the doctrine laid down in the Waterman

case’’' and the comprehensive study of the principles which

this Court applied therein.

Certainly so much of Petitioner’s objection that the Presi-

dent acted without a finding of ‘‘fitness’’ is squarely within

1The Court of Appeals for the Second Circuit categorized the

Waterman decision in this manner in holding that under the Water-

man case it was without jurisdiction to review an order of the Board

subsequently approved by the President. Trans-World Airlines v.

The Civil Aeronautics Board, et al., Civil Action No. —— and Brian

0. Sparks, et al. v. The Civil Aeronautics Board, Civil Action No.

21728, decided August 14, 1950. The order of the Board in this

Second Circuit decision, like the instant case, reflected a directive

of the President contrary to the recommendation of the Board in

which he advised that (1) the transfer to Pan American World

Airways, Ine., of American Overseas Airlines’ temporary certificate

of public convenience and necessity, and the acquisition by the

former of the property, assets, and business of the latter should

be approved, and (2) the certificates of Pan American and TWA

should be amended to authorize Pan American to serve Paris and

Rome and TWA to serve London and Frankfurt.

7

the factual situation involved in the Waterman case itself.

One of the contentions raised on review there was that the

Board had submitted a legally defective finding to the

President of the fitness of the carrier which it reeom-

mended to the President for certification since the finding

was not supported by substantial evidence. Jdem, 117.

This contention may or may not have been true for this

‘Court never considered it on the merits and dismissed the

charge with the holding that it did not have jurisdiction to

consider the Petition for Review. If this Court in the

Waterman case decided that it did not have jurisdiction to

review what might have been an inadequate, indeed, a pos-

sibly mistaken recommendation wrongly influencing the

President's determination, it is impossible to see how Peti-

tioner can now argue that jurisdiction exists to consider the

question of whether the lack of any recommendation at all

on this point constituted defective procedure.

Of even more importance, however, is that fact that both

of Petitioner's objections are fully within the scope of the

two principles which the Supreme Court applied in the

Waterman ease in considering the reviewability by the

Judicial Department of an order of the Board approved by

the President. This Court there determined that such or-

ders ‘tembody Presidential discretion as to political mat-

ters beyond the competence of the courts to adjudicate,”’

Idem, 114, and that to review such orders would be to ren-

der ‘‘an advisory opinion in its most obnoxious form.”

Idem, 113. The exhaustive treatment given these matters

in the opinion should set at rest any contention that a

factual variation such as Petitioner alleges in this case de-

stroys the applicability of the Waterman doctrine.

In the Waterman ease this Court first analyzed the nature

of foreign air transportation and recognized that ‘‘aerial

navigation routes and bases should be prudently correlated

with facilities and plans for our own national defense and

raise new problems in conduct of foreign relations.’’ Idem,

108. It concluded, therefore, that pursuant to this recogni-

ae

tion Congress had provided for Presidential control which

**is not limited to a negative but is a positive and detailed

control over the Board's decisions, unparalleled in the his-

tory of American administrative bodies,’’ Idem, 109, and

was a type of control which has **long been held to belong in

the domain of political power not subject to judicial intru-

sion or inquiry." Idem, 111.

In the present case the Board, in its explanatory opinion

accompanying its order of June 1, 1949, states that after it

submitted to the President its decision in which it decided

the application of Resort should be denied, the President

**advised the Board that for reasons affecting our relations

with foreign countries and in the interest of our national

security, it ix desirable and proper that Resort Airlines,

Ine., be granted temporary authority ...’’ (R. 41). The

Board reflected this directive of the President in an order

subsequently approved by the President. This order grant-

ing a certificate to Resort, over v. hich Petitioner now seeks

judicial review, is, therefore, based solely upon the Presi-

dent's judgment in the exercise of his political power and

fully falls within the recognition by this Court in the

Waterman case that the ‘* Judiciary has neither aptitude,

facilities nor responsibility’? to handle such questions.

Idem, 111.

This Court also applied the principle in the Waterman

case that the Judicial Department will not exercise jurisdic-

tion over matters where they cannot with finality decide the

issues present. On page 113 of its opinion this Court said:

‘*To revise or review an administrative decision which has

only the force of a recommendation to the President would

be to render an advisory opinion in its most obnoxious

form—advice that the President has not asked, tendered at

the demand of a private litigant, on a subject concededly

within the President’s exclusive, ultimate control.”’

Assume that judicial review is taken in this ease and Peti-

tioner’s contentions expressed in its Petition for Review

are sustained. The court below would remand the matter to

BLEED THROUGH POOR COPY

the Board for further proceedings in accordance with its

opinion, but anything whieh the Board did pursuant thereto

would be subject to later Presidential approval, which this

Court in the Waterman ease described as a ‘positive and

detailed’? control of the Board's action. The President,

therefore, has the ultimate diseretion to disregard any de-

cision of the court. Such a situation clearly falls within the

scope of the Waterman case, where this Court forcefully

pointed out, at page 113, of the opinion that ** Judgments

within the powers vested in courts by the Judiciary Article

of the Constitution may not lawfully be revised, overturned

or refused faith and credit by another Department of Gov-

ernment”? and ‘if the President may completely disregard

the judgment of the court, it would only be because it is one

the courts were not authorized to render."’

It ix submitted, therefore, that the court below was com-

pletely correct in its interpretation of the Waterman case

to cover the instant ease. The contentions which Petitioner

row raises do not present a distinguishing factual situation

raising any important new issues which have not already

been fully covered by the extensive treatment of this entire

question in the Waterman case.

2. There is no conflict between the Court of Appeals for the

District of Columbia Circuit granting the motion to

dismiss the Petition for Review and a recent decision

of the United States District Court for the District of

Columbia sitting as a three-judge court in the case of

Colonial Airlines v. Adams, et al., 87 Fed. Supp. 242

(1949).

Petitioner argues that the Colonial case and the action of

the court below are inconsistent.’ (Pet. 13, 14.) There is

1 The only Cireuit Judge sitting in the Colonial case was Judge

Proctor, 87 Fed. Supp. 242, who also joined in granting the motion

to dismiss in this ease (R. 71). In his opinion, at least, there is no

conflict between the two decisions.

—— PRONE ORR ETT RODIN ERAT

it i

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10

no conflict between the substantive holdings of the two de-

cisions but Petitioner asserts that the ‘‘assumption”’’ be-

hind the Colonial decision conflicts with the holding of the

court below and, therefore, a conflict exists which warrants

the grant of a writ of certiorari. Intervener submits that

the two cases are completely distinguishable and cannot

possibly be considered inconsistent on their facts.

First of all, the Colonial ease did not concern itself with

the question involved in the instant case of whether a court

has jurisdiction of an order of the Board after it had been

approved by the President pursuant to Section 801 of the

Aet. The Colonial court took jurisdiction prior to Presi-

dential action. After observing that it might seem that the

Plaintiff should not be heard because no competitive permit

had been issued, the Colonial court said at page 243: ** How-

ever, as there is no statutory judicial review whatever pro-

vided with respect to the administrative action here in-

volved,’* (the issuance of a foreign air carrier permit),

**the Court ix of the view that the constitutional question

presented should now and here be met and answered."’

Secondly, it is by no means clear that the ‘‘assumption”

to which Petitioner refers in the Colonial case is ineon-

sistent with the decision of the court below. All that the

Colonial case assumed was that when the Board makes ree-

ommendations to the President, it must make the findings

required by Section 402(b) that the applicant is fit and the

issuance of the permit is in the public interest. Thus if the

Board recommends the issuance of a permit it must make

these findings according to Section 402. But the Colonial

case did not say that if the Board recommends the denial

of a permit on the grounds that it is not required by the

public interest, it must go through the academic procedure

of passing on the fitness of the applicants. This is the situ-

ation which is involved in the instant case and is a matter

which the Colonial case did not consider at all.

BLEED THROUGH POOR COPY

3. Judicial review of the Board's order is precluded by the

of Section 1006(a) of the Civil Aeronautics

Act in that it was not sought until after the expiration

of the appeal period of sixty days from the entry of

the order by the Board.

Section 1006(a) of the Aet which is set out in full on pages

23 and 24 of the Petition for Writ of Certiorari reads in

part:

‘* Any order .. . issued by the (Board) under this Act

shall be subject to review upon petition filed within

sixty days after the entry of such order, ... After

expiration of said sixty days a petition may be filed

only by leave of court upon a showing of reasonable

grounds for failure to file the petition theretofore."’

The President approved the order of the Board entered

on June 1, 1949 (R. 42) eight days later on June 9, 1949

(R. 43). Until this date the order could not be published

in accordance with Section 801 of the Act. However, this

still left fifty-two days until the expiration of the sixty day

appeal period running from the entry of the order by the

Board during which time a Petition for Review could have

been but was not sought. Nor did Petitioner file a Petition

for Reconsideration with the Board of its order which would

have tolled this appeal period until the Board acted thereon.

Braniff Airways v. Civil Acronautics Board, 147 F. 2d 152

(Cc. C. A. D. C. 1945). Sixty days from the entry of the

Board’s order expired on August 1, 1949 and the Petition

was not filed until August 8, 1949 (R. 53). Petitioner's delay

in filing has therefore deprived the court below of jurisdic-

tion to hear the Petition for Review because it was not filed

within the statutory period and no ‘‘leave of court’? upon

a showing of ‘‘ reasonable grounds”’’ was obtained to permit

a late filing.

Petitioner has sought to avoid the results of its tardy

Petition fer Review by arguing that ‘‘since the Board is

prohibited under Section 801 of the Act from publishing

Soe REY Ba, Tighe

RY EO AORA er

12

its final order until Presidential approval has been ob-

tained, the sixty day appeal period cannot begin to run

until Presidential approval has attached’’ (Pet. 5). It is

true, of course, that some time delay will result between

the time of the entry of an order by the Board concerning

foreign air transportation and the required Presidential

approval. Whether or not it would have been desirable for

Congress to have extended the appeal period under these

circumstances is not the question, however, for Congress

has the power to ‘‘formulate the conditions under which

resort to the courts may be had’’ to review an administra-

tive proceeding, American Power & Light Co. v. Securities

and Exchange Commission, 325 U.S. 385, 389 (1946), and in

other administrative legislation has made it perfectly clear

that it is capable of precisely stating the dates from which

an appeal period commences to run and for what length of

time. Nor is it necessary to read the plain statutory lan-

guage of Section 1006(a) setting an appeal period running

from the ‘‘entry of such order’’ of the Board in any other

way in order to keep within the general policy of the Act.

If a delay between the entry of the Board’s order and Presi-

dential approval is substantial, it would surely be grounds

for asking and receiving ‘‘leave of court’’ to permit a late

filing under Section 1006(a)—an opportunity which Peti-

tioner had to extend the fifty-two days which it already had

but did not utilize prior to filing its Petition for Review.

4. Judicial review of the contentions which Petitioner now

raises is precluded by the fact that they were never

raised before the Board at any time as specifically re-

quired by Section 1006(e) of the Civil Aeronautics Act.

Section 1006(e) of the Act which is set out in full on page

24 of the Petition for Writ of Certiorari provides in part:

‘*No objection to an order of the (Board) shall be con-

sidered by the Court unless such objection shall have

BLEED THROUGH POOR COPY

13

been urged before the (Board) or, of it was not so

urged, unless there were reasonable grounds for failure

to do so.’’

This Court has declared that compliance with a provision

of this type in statutes dealing with judicial review of ad-

ministrative action is a prerequisite to judicial review. Mar-

shall Field & Co. v. National Labor Relations Board, 318

U. S. 253, 256 (1943). °

Petitioner is now seeking review of the order of the Board

on the grounds that the President exceeded his statutory

authority under Section 801 of the Act in two respects.

Although these contentions could not have been made prior

to the issuance of the final order of the Board which repre-

sented final action of both the President and the Board,

Petitioner had ample opportunity thereafter to do so in the

form of a Petition for Reconsideration of the order as spe-

cifically provided for in the Board’s regulations.’ Peti-

tioner did not file any Petition for Reconsideration and is,

therefore, presenting these contentions to the court below

for the first time in patent contravention of the provisions

of Section 1006(e) cited above.

It is no excuse for failure to comply with Section 1006(e)

to argue that such action might have been futile, as Peti-

tioner has apparently done when it states that the only

recourse after Board and Presidential action was ‘‘to seek

judicial review’’ (Pet. 5). It has been clearly established

that rigorous compliance with provisions such as Section

1006(e) must be made prior to judicial review even though

the alleged defects in the administrative order involve, as

do Petitioner’s two contentions, a breach of statutory au-

1 The Board’s ‘‘ Rules of Practice’’ authorizing Petitions for Re-

consideration are set out in full in ‘‘ Appendix A.’’

fees: Fas wR PEE? er Sao he ee wee RELL PO Te Pe Os

Ea

PP POP RE 6 IY

in RE AON:

14

thority’ or unconstitutional action.? Provisions such as Sec-

tion 1006(e) are requirements imposed by Congress which

the courts cannot alter. Todd v. Securities & Exchange

Commission, 137 F.2d 475, 478 (C.C. A. 6th 1943).

Of even more importance, however, is the fact that if Peti-

tioner’s alleged deficiencies in the Board’s order had been

brought to its attention, action might very well have been

instituted by the Board resulting in the issuance, with the

President’s approval, of a revised order correcting the al-

leged irregularities. This judicial proceeding might there-

by have been rendered completely unnecessary. Since Peti-

tioner has not given the Board an opportunity to supply the

alleged deficiencies to its order without a valid reason for

failure to do so, it has not complied with the prerequisite

for judicial review contained in Section 1006(e).

CONCLUSION.

Petitioner has urged this Court to grant a writ of cer-

tiorari on the grounds that the issues raised in this pro-

ceeding are of far-reaching importance requiring judicial

determination. The Intervener submits that this argument

might have been used by the Petitioner when it sought a

writ of certiorari from this Court in the Waterman case,

but that these issues have now been put at rest by the com-

prehensive treatment which they received in that case. The

court below was therefore perfectly correct in dismissing

the Petition for Review on the basis of the Waterman case.

The contentions which Petitioner now raises do not create

any distinguishing feature which bring this case out of the

broad sweep of the doctrine laid down in the Waterman

2e.g. Marshall Field & Co. v. National Labor Relations Board,

318 U. S. 253 (1943); Phillips v. Securities and Exchange Com-

mission, 156 F. 2d 606 (C. C. A. 2nd 1946).

2 e.g. Pacific Gas & Electric Co. v. Securities and Exchange Com-

mission, 127 F. 2d 378 (C. C. A. 9th 1942), affirmed 324 U. S. 826

(1944), rehearing denied 324 U. S. 890 (1944) ; Todd v. Securities

and Exchange Commission, 137 F. 2d 475 (C. C. A. 6th 1943).

15

ease. Certainly, if this Court declared in the Waterman

case that the Judicial Department did not have jurisdiction

to review an order of the Board approved by the President

in which the President agreed with the Board’s recom-

mendations, on the grounds that to do so would be to inter-

fere with the political authority of the President and to

render an obnoxious advisory opinion, a fortiori no juris-

diction exists here where the order for which review is

sought only reflects a directive of the President contrary to

the recommendations of the Board.

Petitioner also labors under two jurisdictional defects

which should cause this Court to deny its application for a

writ in that it has failed to comply with procedural requi-

sites for judicial review as specifically set forth in Section

1006 of the Act. It filed its Petition for Review on August

8, 1949 with the court below which was not within sixty days

of the entry of the Board’s Order on June 1, 1949 as re-

quired by Section 1006(a) of the Act. In addition, it did

not present to the Board at any time its contentions that the

President exceeded his statutory authority although it

could have done so by filing a Petition for Reconsideration

and, perhaps, have avoided this entire judicial proceeding.

It is barred from raising these issues on appeal, therefore,

by the provisions of Section 1006(e) of the Act.

Wuererore, Intervenor, Resort Airlines, Ine., prays

that this Honorable Court deny the Petition for a Writ of

Certiorari to the United States Court of Appeals for the

District of Columbia Circuit filed by the Petitioner, Chicago

& Southern Air Lines, Ine.

Respectfully submitted,

L. Wetcu Posve,

James F’, Bet,

730 Southern Building,

Of Counsel: Washington 5, D. C.,

Pocur & NEAL, Attorneys for Intervener.

730 Southern Building,

Washington 5, D. C.

Dated: September 6, 1950

pte ons rat

PLS RP Ne Rene Feet Ley,

PROSE INT?

HTT OR LTRS MEE

16

APPENDIX A.

Section 285.11 of the Civil Aeronautics Board’s Rules of

Practice in Economie Proceedings, 14 C.F.R. 285.11!

Petition for rehearing, reargument, or reconsideration—

(a) Parties. Any party may petition for rehearing, rear-

gument, or reconsideration of any final order by the Board

in a proceeding, or for further hearing before decision by

the Board.

(b) Contents of petitions. (1) The matters of record

claimed to have been erroneously decided must be specified,

and the alleged errors, and the grounds relied upon must

be briefly and specifically stated in the petition.

(2) If a final order of the Board is sought to be vacated

or modified by reason of matters which have arisen since

the hearing, or of a consequence which would result from a

compliance therewith, or both, the new matter, the resulting

consequence, or both, which are relied upon by the peti-

tioner must each be set forth in the petition. Where the

petition is based wholly or in part upon new matter, the

petition must contain a statement that the petitioner, with

due diligence, could not have known or discovered the new

matter prior to the time of the hearing.

(3) The petition must set forth a brief statement of the

relief sought by the petitioner and conform to requirements

of § 285.3.

(c) Filing and service of petitions. Such petition for

rehearing, reargument, or reconsideration, must be filed

within thirty days after service of the order sought to be

vacated or modified. After the expiration of said thirty

days, such a petition may be filed only by leave of the Board

granted pursuant to formal application upon a showing of

reasonable grounds for failure to file the petition within the

prescribed thirty-day period. Any such petition or appli-

cation shall be served by the petitioner or applicant upon

all parties to the proceeding or their attorneys of record.

(d) Stay of orders. No petition for rehearing, reargu-

ment, or reconsideration filed in accordance with this seec-

tion, or the granting thereof, shall operate as a stay of the

effective date of the final order sought to be modified or

vacated by such petition, unless specifically so ordered by

the Board.

1 On June 23, 1949 this Section was redesignated as Section 302.11

effective July 1, 1949.

BLEED THROUGH POOR COPY

17

APPENDIX B.

80th Congress H.R. 5771 2d Session

Ix Tue House or Rerresentatives

March 9, 1948

Mr. Bartlett introduced the following bill; which was re-

ferred to the Committee on Interstate and Foreign Com-

merce,

A Bu

To amend the Civil Aeronauties Act of 1938, as amended,

to provide for judicial review of orders of the Civil

Aeronauties Board affecting the rights of domestic air

carriers to engage in overseas or foreign air transpor-

tation.

Be it enacted by the Senate and House of Representatives |

i ane

of the United States of America in Congress assembled,

That subsection (a) of section 1006 of the Civil Aeronautics

Act of 1938, as amended (June 23, 1938, 52 Stat. 1024), is

hereby amended to read as follows: .

‘*(a) Any order, affirmative or negative, including

but not limited to any order in respect of any domestic

air carrier subject to the approval of the President as ;

provided in section 801 of this Chapter, issued by the

Board under this chapter, except any order in respect

of any foreign air carrier subject to the approval of

the President as provided in section 801 of this chap-

ter, shall be subject to review by the circuit courts of

appeals of the United States or the United States

Court of Appeals for the District of Columbia upon

petition, filed within sixty days after the entry of such

order, by any person disclosing a substantial] interest

in such order. After the expiration of said sixty days

a petition may be filed only by leave of court upon a

showing of reasonable grounds for failure to file the

petition theretofore.”’

Sec. 2. That this amendment will remove ambiguity

from the language employed in section 1006 of the Civil

Aeronautics Act of 1938; and, in all applicable cases before

them, the Federal courts shall construe the language of this

amendment as if it were an original part, and set in the con- :

text of the Civil Aeronautics Act of 1938. ;

LL OER

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