# Petition for Writ of Certiorari — Air Transport Associates, Inc. v. Civil Aeronautics Board

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1235%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1952
- **Citation:** 344 U.S. 825

## Text

Office - Supreme Court, U. $
FILED

oo

cone | JUN 17 1959

CHARLES ELi°°E C20PLIW

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1951

No. 136

AIR TRANSPORT ASSOCIATES, INC.,
Petitioner,
v.

CIVIL AERONAUTICS BOARD
Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Wansen E. Muzer,
Counsel for Petitioner
910 17th St., N. W.
Washington, D. C.

INDEX

Reasons for Allowance of bee ESE Pe

Sica Oe ec ie
EM ne ct ees
Specification of wear ee
Point 1. The Court below erred in dismissing
the petition which sought review be.

cause of the lack of regularity of the
Proceedings before the Board and the

lack of substantial evidence when the

Court did not have the entire record

of the proceedings before it, although

the statute requires a transcript of

the record be filed incourt......._.

Point 2. The Court erred in dismissing this
cause and not setting aside the orders

Northern Airlines, Ine. and Alaska
Airlines, Inc., because the Board did
not consider petitioner ’s application
for certificate which had been pend-
ing for over sixteen months....._..

Point 3. The Court erred in dismissing the
Petition because it should have re-
versed at least that part of the
Board’s orders —_— & certificate

16

17

18

ii INDEX
Appendix A. Relevant Statutory Provisions.......

ais be oct epi
See. 1(21) (ce) Civil Aeronautics Act, 52 Stat. 977,
Nee as wb oy
See. 205(a), Civil Aeronautics Act, 52 Stat. 984,
ce aansncnees
Sec. 401, Civil Aeronautics Act, 52 Stat. 987, 49
Neen Tn an cons anos oes
Sec. 404(a), Civil Aeronautics Act, 52 Stat. 993,
ee ne wetceccanesas®
Sec. 406, Civil Aeronautics Act, 52 Stat. 998, 49
U. 8. C. GOB... 5.5.2.

49 U. 8. Ne a iss snip a ta'me «
Sec. 1002(b), Civil Aeronautics Act, 2 Stat. 1018,

NS 35
See. 1006, Civil Aeronautics Act, 52 Stat. 1024,

I 36

Table of Cases Cited:

Ashbacker Radio Corp. v. Federal Communica-
eo ae ee: 5, 11,18

a")
Seek FR R RE

602,
Northwest Airlines, Inc. v. Civil Aeronautics
ane eceee 18
Youngstown Sheet and Tube Co. v. Sawyer and
a gS vs ——— Sheet and Tube Co.,

Miscellaneous Citations:
House Report 2254, 75th Congress, 3rd Session 19

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 19%

No. 36

AIR TRANSPORT ASSOCIATES, INC.,

Petitioner,

Vv.

CIVIL ABRONAUTICS BOARD
Respondent

PETITION FOR WRIT OF OERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

To the Honorable the Chief Justice and Associate Justices
of the Supreme Court of the United States:

Air Transport Associates, Inc., petitioner, prays that a
writ of certiorari issue to review the order of the United
States Court of Appeals for the District of Columbia Cir-
cuit entered in the above-entitled cause on February 18,
1952, (R. 162) by which order a petition for review, (R.
1-29) of order of the Civil Aeronautics Board was dis-
missed.

Opinions Below

The opinion, (R. 38-68) separate opinion by Member
Jones (R. 68-83) and the supplemental opinion and order

2

of the Civil Aeronautics Board’ (R. 29-32) are not re-
ported. The order (per curiam) of the United States
Court of Appeals for the District of Columbia Circuit (R.
162) is not reported.

Jurisdiction

* The order of the United States Court of Appeals for the
District of Columbia Circuit was entered on February 18,
1952, (R. 162). This court extended the time to and in-
eluding June 17, 1952, for filing this petition (R. 165). The
jurisdiction of this Court is invoked under 28 U.S.C. 1254
(1), and section 1006(f) of the Civil Aeronautics Act, as
amended, 52 Stat. 1024, 49 U.S.C. 646(f).

Questions Presented

The Board in its opinion of September 29, 1950, (R. 38-
68), after extensive hearings and after applying the requi-
site standards as authorized by Congress (sec. 401(d)(1))
of the Civil Aeronautics Act, as amended, 52 Stat. 987,
49 U.S.C. 481(d) (1)? found in effect that Alaska Airlines,
Inc., did not qualify for a certificate of public convenience
and necessity authorizing it to operate regularly and receive
government mail subsidy* to defray its operations; and
directed the entry of an order providing, among other
things, that Alaska Airlines, Inc., and Pacific Northern
Airlines, Inc., be issued certificates of public convenience
and necessity, which certificates were issued (R. 33-35).

1 Hereinafter referred to as “the Board”.

2 This statute provides: “The Authority shall issue a certificate au-
thorizing the whole or any part of the transportation covered by the
application, if it finds that the applicant is fit, willing, and able to perform
such transportation properly, and to conform to the provisions of this
Act and the rules, regulations, and requirements of the Authority here-.
under, and that such transportation is required by the public convenience
and necessity; otherwise such applisation shall be denied.”

8 Sec. 406, Civil Aeronautics Act of 1938, on enantind, G6 Rtet, 066,
49 U. 8. C. 486. e

3

This opinion was forwarded to the President of the United
States for approval,‘ who, according to the supplemental
opinion and order (R. 29-32), directed the issuance of cer-
tificates of public convenience and necessity to Pacific
Northern Airlines, Inc., as recommended by the Board,
and, in addition, directed that a certifieate of public con-
venience and necessity be granted to Alaska Airlines, Inc.
An order to this effect was accordingly made by the Board
without further findings (R. 34-35).

Although petitioner filed with the Board an application
for a certificate of public convenience and necessity on
May 9, 1949, (R. 13, 27), such application has never been
considered by the Board, although it was not until Septem-
ber 29, 1950, that its opinion was rendered (R. 36).

The questions presented are:

1. When an administrative agency does not, as expressly
directed by statute, file in court a transcript of the record
upon which an order sought to be reviewed was entered in a
case when the validity of such orders is challenged because
of the lack of regularity of the proceedings, and because of
the lack of substantial evidence, may a Circuit Court of
Appeals properly dismiss the petition without having avail-
able for inspection the entire record of the challenged pro-
ceeding?

2. When mutually exclusive applications for certificates
of public convenience and necessity have been filed with an
administrative agency by different carriers for identical

* See. 801, Civil Aeronautics Act of 1938, as amended, (52 Stat. 1014,
ne 8. C. 601) provides, in part:

4

service over the same route, may that agency grant certifi-
cates to some of the applicants without considering all other
such pending mutually exclusive applications?

3. Whether, in the absence of a statute expressly author-
izing the President to order the issuance of a certificate of
public convenience and necessity to an air carrier to engage
only in ‘‘overseas air transportation’’® in a case not in-
volving ‘‘foreign air transportation’’,* dad the Board hewe Mad
power to issue such certificate at the direction of the Presi-
dent, although it had previously determined as an inde-
pendent body of experts, entirely free from executive con-
trol or influence that the carrier did not meet the standards
prescribed by Congress as a prerequisite to the issuing of
such certificate?

Statutes Involved

The pertinent statutes involved are set forth in the Ap-
pendix.
Summary of the Matter Involved

Petitioner, a ‘‘noncertificated’’ air carrier, has been en-
gaged since July, 1948, in transporting cargo and passen-
gers between Seattle, Washington, and Alaska. On March
9, 1948, the Board instituted a proceeding to determine the
adequacy of air cargo service performed by certificated air-

5 The transportation in question was between Seattle, Washington, and
points in and constituted “overseas air transportation”; defined
by See. 1 (21) of the Civil Aeronautics Act (49 U. 8. C. 401) as
transported between:

“, . . @ place in any State of the United States, or the District of
Columbia, and any place in a Territory or possession of the United
States; or between a place in a Territory or possession of the United
States, and a place i in any other Territory or possession of the United
States ;

® See. 1(21) (e) of the Civil Aeronautics Act, 49 U. 8. C. 401, defines

“foreign air transportation” as transportation between “. . . a place
in the United States and any place outside thereof, whether such com-
meree moves wholly by aireraft or partly by aireraft and partly by other
forms of transportation.

5

lines between the Territory: of Alaska and the continental
United States. In this proceeding, the Board consolidated
certain applications for certificates of public convenience
and necessity filed by other airlines. Petitioner moved to
intervene in that proceeding on November 2, 1948, which
motion was not granted until after the close of the hear-
ings in December, 1948. Petitioner filed an application for
a certificate of public convenience and necessity with the
Board on May 9, 1949, 16 months before the Board acted
upon the application of Alaska Airlines, Inc., and Pacific
Northern Airlines, Inc. on September 29, 1950 (R. 38-68).
This application was ‘‘ mutually exclusive’’ with the applica-
tions of Pacific Northern Airlines, Inc., and Alaska Airlines,
Inc., as that term is used in Ashbacker Radio Corp. v. Fed-
eral Communications Comm., 326 U. S. 327, 90 L. Ed. 108,
110. However, the Board has not yet considered peti-
tioner’s application although the Board is directed by stat-
ute to dispose of such applications as speedily as possible,’
and petitioner has unsuccessfully requested early action
thereon.

Petitioner asked the court below to set aside the orders
of the Board (R. 1-28), granting certificates of public con-
venience and necessity to Pacific Northern Airlines, Inc.,
and Alaska Airlines, Inc. (R. 33-35), and i set its applica-
tion for a certificate of public convenience and necessity for
early hearing. Among the grounds urged for reversal of
the Board’s order was that the Board’s action was not based
upon substantia! evidence in the record (R. 25). Notwith-

7 See. 401(¢) of the Civil Aeronautics Act, 52° Stat. 987, 49 U. S. C.
481(c), provides: “(e) Upon the filing of any such application, the
Authority shall give due notice thereof to the public by posting a notice
of such application in the office of the secretary of the Authority and
such other persons as the Authority may by regulation determine.

in person may file with the Authority a protest or memoran-
of opposition to or in support of the issuance of a certificate.
application shall be set for public hearing, and the Authority shall
dispose of such application as speedily as possible.”

i

standing the statut nec the Board to certify and file
in the court below “ne transcript of the record upon which
the order complained of was entered,’ and directs these
applications be set for public hearing and disposed of as
speedily as possible, the Board neglected to file a complete
transcript of the record, but attempted to file an ‘‘abbrevi-
ated record’’, which it lodged with the clerk of the court
below. Petitioner objected to the filing of the ‘‘abbreviated
record’’ upon the ground that the Board had no right to
‘Shand pick’’ only those portions of the record it desired the
court to consider when passing upon the Board’s Motion to
Dismiss, as the petition for review is based in part upon the
lack of substantial evidence to support the orders being
reviewed, and in part upon the lack of regularity of the
administrative proceedings.

Certificates of public convenience and necessity are only
issued in accordance with the standards prescribed by the
Civil Aeronautics Act. That Act does not confer authority
upon the Board to base the issuance of a certificate of public
convenience and necessity solely upon ‘‘national defense’’
reasons (R. 74-75). It was not the intention of Congress to
place upon the Post Office Department the burden of paying
mail subsidy to defray the expense of air routes established
solely for the purpose of national defense, as was done by
the Board here in granting a certificate of public conven-
ience and necessity to Alaska Airlines, Inc. Nothing in the
Civil Aeronautics Act authorizes this.

If Section 801 of the Civil Aeronautics Act, requiring the
President to approve a certificate for overseas transporta-
tion is to be construed as conferring upon him the right to
order the issuance of such a certificate when, as here, such

8 See. 1006(c) of the Civil Aeronautics Act, as amended, 52 Stat. 1024,
49 U. S. C. 646, provides: “(¢) A copy of the petition shall, upon filing,
be forthwith transmitted to the Authority by the clerk of the court;
and the Anthority shall thereupon certify and file in the court a transcript

7

procedure violates the economic standards provided in the
Act, this is a misconstruction of the statute. While the
court below rendered no opinion, nevertheless in reaching
its conclusion, it is apparent that it took this view of the
law, unless it felt that the President had inherent powers
such as he erroneously asserted in the Steel Seizure Cases.
In either event, the action of the court below on this impor-
tant point should be reviewed by this court and a rule of law
established so the Civil Aeronautics Board, as well as the
President, will be aware of their respective functions in
these matters; and future action will not violate, as here,
the rights of others.

The petition for review does not challenge the power of
the President to avprove or disapprove the decision of the
Board in this case, dated September 29, 1950 (R. 36), but
it is petitioner’s position that the President’s power with
respect to this ‘‘overseas air transportation’”’ is limited to
approving or disapproving this decision of the Board
because the statute provides that the issuance of any cer-
tificate ‘‘shall be subject to the approval of the President”
(49 U. S. C. 601). The President’s action in directing (R.
30) that Alaska Airlines, Inc., be issued a certificate, not-
_ withstanding the finding by the Board that it did not meet
the standards and requirements prescribed by statute (R.
36-83) is beyond his constitutional powers. The only au-
thority vested in the President with respect to ‘‘overseas air
transportation”’ as distinguished from ‘‘foreign air trans-
portation’”’ is that contained in Section 801 of the Civil
Aeronautics Act (49 U. S. C. 601) which makes the issuance
or denial of a certificate covering such transportation sub-
ject to the President’s approval. It does not vest in the
President the authority to grant a certificate-of public con-
venience and necessity under the provisions of Section
401(d)(1) of the Civil Aeronautics Act (49 U. 8. C.
481(d)(1)). Under the commerce clause of the Constitution,

8

only Congress has authority to regulate commerce. This it
has done by delegating such authority to the Board with
respect to overseas air transportation.

No formal executive order was ever issued by the Presi-
dent directing the granting of a certificate of public con-
venience and necessity to Alaska Airlines, Inc., under his
general or executive powers. If issued, such executive
order would be clearly beyond the authority and power
vested in the President by the Constitution, and would vio-
late that provision of the Constitution which gives only to
Congress the right to regulate the air commerce here under
consideration. For like reason, the action of the President
here, being in excess of his powers under the Constitution,
should be ignored.

Petitioner here is only asking the court to review the or-
ders of the Board herein complained of, as authorized by
Section 1006 of the Civil Aeronautics Act (49 U. S. C. 646).
It is not asking the court to review any order of the Presi-
dent. In reviewing the orders of the Board, however, peti-
tioner asks the court to set aside such orders issued at
the President’s direction when he told the Board to issue
a certificate to Alaska Airlines, Inc. Such action was not
binding on the Board as it was beyond his constitutional *
powers and was void ab initio.

Petitioner does not take the position here that the record
made before the Board is insufficient to support the Presi-
dent’s action, because the record before the court did not
and does not indicate whether or not the Board’s entire
record in this case was ever sent to the President, eer at
the time the decision of the Board, dated September 29,
1950, was ewer submitted for his approval. The supple-
mental opinion and order only states that the decision of
the Board was submitted to the President for his approval,
and therefore if this case is to be decided without the whole

=—_—"

9

record, we must assume that only the decision of the Board
was sent to the President for action. Consequently, peti-
tioner is not urging here that the record made before the
Board is insufficient to support the President’s action,
because it is only the orders before the Board which are
being reviewed here and not the action of the President.

As in the Steel Seizure cases, there is no statute that
authorizes the President to take the action which he did.
Here, as in the Steel Seieure cases, attempt was made to
justify the action of the President upon the ground of
national defense ; ® but, as in the Steel Seizure cases, there is
no statute authorizing him to take the action which he did;
and as in the Steel Seizure cases, the order cannot properly
be sustained as an exercise of the President’s military
power as Commander-in-Chief of the armed forces.

Here, as in the Steel Seizwre cases, the plan Congress
adopted in the Civil Aeronautics Act did not provide for
the President to step over the bounds fixed by Congress,
and the statute here did not authorize the President to

®R. 30. On May 18, 1951, the President advised the Board that after
taking into account all of the considerations and factors relating to this
matter peculiarly within the scope of the Executive, particularly the
need for air transport services to Alaska arising directly out of national
defense activities, and the direct contribution which the fullest develop-
ment of Alaska would make to the national defense, he had concluded
that the Board’s decision should be approved with the following changes:

1. Pacific Northern Airlines, Inc., should be authorized to serve Port-
land, Oreg., as a co-terminal point with Seattle, Wash.; and

2. Alaska Airlines, Inc., should be waged a route from the co-terminal
points Seattle, Wash., and Portland, Oreg., to Fairbanks, Alaska, carrying
passengers, property, and mail. The certificate should be temporary,
expiring at the same time as the certificates of Northwest Airlines, Inc.,
and Pacific Northern Airlines, Inc., for operations between the United
States and Alaska. (Italies supplied.)

10 Section 801 of the Civil Aeronautics Act, 1938, as amended (52 Stat.
1014, 49 U. 8. C., 601) provides:
“The issuance, denial, transfer, amendment, cancellation, suspension,
or revocation of, and the terms, conditions, and limitations contained

10

direct the issuance of a certificate of public convenience and
necessity after the Board has determined, according to the
standards prescribed by Congress, that a carrier does not
meet such standards. The President cannot change the
facts as found by the Board although he may disapprove the
Board’s findings. But his right to so disapprove does not
carry with it the power to make independent findings which
are contrary to the economically based findings of the
Board.

The action taken by the President in the instant case is
similar to the erroneous belief prevailing in some quarters
prior to this Court’s recent decisions in the Steel Seizure
cases that the President possessed certain ‘‘inherent and
implied war emergency or plenary powers,’’ which were not
prescribed by statute or conferred upon him by the Con-
stitution, as he did in the ‘‘Steel Seizure cases’’ (Youngs-
town Sheet & Tube Co. v. Sawyer, 72 8. Ct. 863, and Sawyer
v. Youngstown Sheet & Tube Co.) where this Court, on
June 2, 1952, held that the order of seizure cannot properly
be sustained as an exercise of any of the President’s pow-
ers, including his military power as commander-in-chief of
the armed forces. The President grounded his action on
‘‘national emergency activities’’ (R. 30). Here, as in that
case:

‘‘The President’s order does not direct that a con-
gressional policy be executed in a manner prescribed
by Congress—it directs that a presidential policy be
executed in a manner prescribed by the Presi-
dent . . .’’ (728. Ct. 863 at p. 867.)

in, any certificate authorizing an air carrier to engage in overseas or
foreign air transportation, or air transportation between places in
the same Territory or possession, or any permit issuable to any
foreign air carrier under section 402, shall be subject to the approval
of the President.”

11

Reasons for Allowance of the Writ

1. The United States Circuit Court of Appeals for the
District of Columbia Circuit has decided an important
question of federal law which has not been, but should be,
settled by this Court.

2. The United States Circuit Court of Appeals for the
District of Columbia Circuit has decided a question of
general importance and of substance relating to the con-
struction of a statute of the United States involving the
application of the Constitution of the United States that has
not been, but should be, settled by this Court.

3. The order of the United States Circuit Court of Ap-
peals for the District of Columbia Circuit is inconsistent
with and probably conflicts with the opinions of this Court
rendered June 2, 1952, in the cases of Youngstown Sheet &
Tube Co. v. Sawyer, and Sawyer v. Youngstown Sheet &
Tube Co., 72 8. Ct. 863 and Ashbacker Radio Corp. v. Fed-
eral Communications Comm., 326 U. S. 327.

These reasons are shown in petitioner’s brief, filed here-
with.

Wuenrerorg, petitioner prays that a writ of certiorari
issue under the seal of this Honorable Court directed to the
United States Court of Appeals for the District of Columbia
Cireuit commanding said court to certify and send to this
court a full and complete transcript of the record and of
the proceedings had in the case numbered and entitled in
its Docket 11,118 (April Term 1951) Air Transport Associ-
ates, Inc. vs. Civil Aeronautics Board, 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 herein of the said United States Court of Appeals

12

for the District of Columbia Circuit be reversed by this
court, and for such other, further, or different relief as to
this court may seem proper.

Warren E. Mixer,
910 17th Street, N. W..,
Washington 6, D. C.,
Attorney for Petitioner.

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 195g,

No. /36

AIR TRANSPORT ASSOCIATES, INC.,

Petitioner
i. etitioner,

CIVIL AERONAUTICS BOARD,
Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI

Opinion of the Court Below

No opinion was rendered by the United States Court of
Appeals for the District of Columbia Circuit as this matter
was disposed of by per curiam order (R. 162).

Jurisdiction

Reference is made to jurisdictional statement in the
petition.
Statement of the Case

Reference is made to the ‘‘Summary of the Matter In-
volved’’ in petition.

14

Specification of Errors
1. The Court of Appeals erred in dismissing this com-
plaint, because

a. No findings were made by the Board as prescribed by
49 U. S. C. paragraph 481(d), which is essential to the
granting of a certificate of public convenience and necessity.

b. The Board found Alaska Airlines, Inc. to not meet the
standards prescribed by the Civil Aeronautics Act as a pre-
requisite to granting of a certificate of public convenience
and necessity.

c. When ‘‘Overseas air transportation’’ only is involved,
after an agency determines that a carrier did not meet the
standards prescribed by Congress as a prerequisite to the
issuing of a certificate of public convenience and necessity,
and the President for asserted reasons of ‘‘National De-
fense’’ later directs the agency to issue a certificate and
the agency pursuant to such directions and without any
further findings issues a certificate, the Agency’s action is
void and should be set aside.

d. When mutually exclusive applications for certificates
of public convenience and necessity have been filed by dif-
ferent carriers for identical service the agency’s action
in granting certificates to some of the applicants without
considering all other pending mutually exclusive applica-
tions is contrary to law.

e. The Court below misconstrued Section 801 of the Civil
Aeronautics Act (49 U. S. C. 601).

f. There is no Act of Congress or provisions of the Con-
stitution authorizing the issuance of a certificate of public
convenience and necessity by direction of the President
when the carrier receiving the certificate has been found to
not meet the standards prescribed by Congress as a pre-
requisite to receiving one.

15

g. The orders sought to be reviewed contravene the fol-
lowing provisions of Section 10(e) of the Administrative
Procedure Act (5 U. 8S. C. 1009(e)):

‘*So far as necessary to decision and where presented
the reviewing court shall decide all relevant questions
of law, interpret constitutional and statutory provi-
sions, and determine the meaning or applicability of
the terms of any agency action. It shall * * * (B)
hold unlawful and set aside agency action, findings, and
conclusions found to be (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) contrary to constitutional right, power, privi-
lege, or immunity; (3) in excess of statutory jurisdic-
tion, authority, or limitations, or short of statutory
right; (4) without observance of procedure required
by law; (5) unsupported by substantial evidence * * *,’’

(h) The hearings before the Board constitute a lack of
procedural due process of law.

(i) The finding of the Board that Pacific Northern was
fit and able properly to perform such transportation was
not supported by substantial evidence, and hence was un-
lawful.

(j) The orders here reviewed violate the ‘‘Declaration
of Policy’’ prescribed by section 2(c) of the Civil Aero-
nautics Act (49 U.S.C. 402 (c)).

(k) As all questions touching on the regularity and
validity of proceedings of the Board pertaining to Alaska
Airlines, Inc., are open to review by the Court, its respon-
sibility can be discharged only by a review of the entire
record of the proceeding before the Board in this case, the
regularity and validity of which proceeding is herein
challenged.

(1) The orders of the Board herein challenged do not,
as required by Section 8(b) of the Administrative Pro-

16

cedure Act (5 U.S.C. 1007(b))"™ include a statement of the
findings and conclusions as well as the reasons or basis
therefor upon all the material issues of fact, law, or dis-
cretion presented on the record with respect to Alaska
Airlines, Inc.

(m) The only delegation of authority by Congress, which
alone can regulate commerce (Article I, Section 8 of the
Constitution) is contained in Section 401 of the Civil Aero-
nautics Act giving the Board as an independent body of
experts entirely free from executive control the right to
act in accordance with that section.

Pornt 1

THE COURT BELOW ERRED IN DISMISSING THE PETITION
WHICH SOUGHT REVIEW BECAUSE OF THE LACK OF
REGULARITY OF THE PROCEEDINGS BEFORE THE BOARD
AND THE LACK OF SUBSTANTIAL EVIDENCE WHEN THE
COURT DID NOT HAVE THE ENTIRE RECORD OF THE PRO-
CEEDINGS BEFORE IT, ALTHOUGH THE STATUTE REQUIRES
A TRANSCRIPT OF THE RECORD BE FILED IN COURT.

Section 1006(c) of the Civil Aeronautics Act (49 U.S.C.
646@)provides that upon filing petition, the Board shall
thereupon certify and file in the court a transcript of the
record upon which the order complained of was entered.
This clearly contemplates the filing of the entire record and
-not an ‘‘abbreviated record’’ as the Board here unsuccess-
fully sought to file (R-137). This Court said in American

115 U. 8. C. 1007(b) provides: “The record shall show the ruling upon
each such finding, conclusion, or exception presented. All decisions (in-
cluding initial, recommended, or tentative decisions) shall become a part
of the record and include a statement of (1) findings and conclusions,
as well as the reasons or basis therefor, upon all the material issues of
fact, law, or discretion presented on the record; and (2) the appropriate
rule, order, sanction, relief, or denial thereof,”

17

Power Company vs. Securities and Exchange Commission,
325 U. S. 385, at page 392: ‘

«* * * Apparently it was not satisfied that the filing
of an abbreviated transcript furnished a basis for
affirmance. The Commission, without inordinate de-
lay or additional expense, might have fiJed. the full
transcript of the proceedings before it obtained

the indepth ita court on the adequacy of the peti-
tion. We re not called upon to examine the
merits of the Commission’s contentiongor to reverse

the decision denying the motion to dismiss, or that
denying the motion to dismiss or affirm * * *,’?

It is petitioner’s position that all issues stemming from the
petition filed herein are open for review.

As all questions touching on the regularity and validity
of proceedings of the Board pertaining tg Alaska Air-
lines, Inc. are open to review by the Court, its responsi-
bility can be discharged only by a review of the entire
record of the proceeding before the Board in this case, the
regularity and validity of which proceeding is herein chal-
lenged. As the entire record of the proceeding before the
Board was not before the Court below when it dismissed the
petition, this court should take jurisdiction and reverse the
lower court.

Pont 2

THE COURT ERRED IN DISMISSING THIS CAUSE AND NOT
SETTING ASIDE THE ORDERS OF THE BOARD GRANTING
CERTIFICATES OF CONVENIENCE AND NECESSITY TO
PACIFIC-NORTHERN AIRLINES, INC. AND ALASKA AIR-
LINES, INC., BECAUSE THE BOARD DID NOT CONSIDER
PETITIONER’S APPLICATION FOR CERTIFICATE WHICH HAD
BEEN PENDING FOR OVER SIXTEEN MONTHS. 3

Petitioner is Entitled to a Hearing on Its Application
for a Certificate of Public Convenience and Necessity and
Comparative Consideration with Other Applicants Seek-

18

ing to Engage in Substantially Similar Air Transporta-
tion.

Petitioner requests in its petition for review herein that
the Civil Aeronautics Board be directed to set the matter
of its application for a certificate of public convenience
and necessity for early hearing. Its application is mutually
exclusive of those that were consolidated in the United
States-Alaska Service Case, supra, but its application
was not consolidated with the others in that proceeding.
Its application was filed with the Board after the close of
the hearings before the Board but more than two years
before the Board on May 24, 1951 issued its order herein
sought to be reviewed (R. 29).

The situation here is similar to that existing in the case
of Northwest Airlines, Inc. v. Civil Aeronautics Board, 194
Fed. (2d)339Where the court stated ‘‘the test of mutual
exclusiveness because of economical conditions should be
as of the time the applications are being considered and an
award is being made. * * * Where two bona fide applications
are mutually exclusive, it is ordinarily true that one may
not be granted without a hearing to both. This fundamental
principle of fair play was announeed by this Court in Ash-
backer Radio Corporation v. Federal Communications Com-
mission, 326 U. S. 327.

Port 3

THE COURT ERRED IN DISMISSING THE PETITION BE-
CAUSE IT SHOULD HAVE REVERSED AT LEAST THAT PART
OF THE BOARD’S ORDERS GRANTING A CERTIFICATE TO
ALASKA AIRLINES, INC.

Reasons for Granting the Writ

Determination by the Courts of the Distinction between
Executive and Regulatory Functions under the Civil Aero-
nautics Act of 1938 Was Intended by Framers of the Act
and the Congress in Adopting the Act.

19

The drawing of the line between executive action and
administrative, quasi-judicial action was considered in con-
nection with the study of the Civil Aeronautics Act of 1938.
From the hearings conducted by the Committee on Inter-
state and Foreign Commerce of the House of Representa-
tives, it appears that the question as to the limitations upon
the action of the executive with respect to decisions of the
Authority or Board arose several times. The proposal that
the disposition of certificates of public convenience and
necessity be subject to the approval of the President was
left substantially as it appears in Section 801 of the Act
under the belief of the Congress and governmental agencies
interested that the courts would determine the area of
executive function except as to the specific exception. Im-
munity from judicial review was specifically limited to
orders in respect ef any foreign air carrier subject to the
approval of the President as provided in Section 801 of the
Civil Aeronautics Act. ;

The following is from the testimony of Clinton M. Hester,
Assistant General Counsel of the Treasury and representa-
tive of the Interdepartmental Committee on Civil Aviation,
and Fred D. Fagg, Jr., Director of Air Commerce of the
Department of Commerce, at the hearings before the Com-
mittee on Interstate and Foreign Commerce of the House of
Representatives, 75th Congress, 3rd Session (House Report
No. 2254) :

‘Mr. Halleck: I recognize that, but I was looking at
that section in. the light of the words contained in sec-
tion 801, subsection (a), which purports to make the
action of the Authority subject to the general direction
of the President except as respects those acts that are
reviewable by the courts.

‘Mr. Hester: Well, we say that the dividing line is
purely executive functions; the exercise of purely ex-

20

ecutive functions, which are not to be reviewable.’’
Id., page 411; April 1, 1938.
* 7. =

‘‘There (reference is to the reorganization statute of
1932, the Hoover Act) the President of the United
States was trusted, or was authorized, to determine
what isa regulatory function and what is an executive
function.

‘‘Under this bill we leave it to the courts to determine.

‘‘So, Congress has once decided that the President
did not need any definition of these terms, as they felt
that the regulatory functions and the Executive func-
tions were so well known and so well defined within the
decisions that it is not necessary to define them.

‘‘Here we turn it over to the courts.’’

” “ om

‘*Mr. Halleck. Is it fair to say that this language of
subsection (e) ‘The terms and éonditions, and limita-
tions contained in any permit shall be subject to the
approval of the President,’ arises out of the fact that
they involve foreign operations?

‘*Mr. Fagg. Yes, sir; and definitely so, and is limited
to that.’’ Id., page 412.

The legislative intention appears to have been that there
should be judicial review of all matters under the Act except
those relating to foreign operation. It is unfortunate that
‘‘or’’ is used instead of ‘‘and”’ in the phrase ‘‘overseas or
foreign air transportation’’ included in section 801 of the
Act, as the House Committee on Interstate and Foreign
Commerce was not only informed as above by the repre-
sentatives of the government agencies which had studied

‘the matter and collaborated in the drafting of the law, but
Mr. Hester testified earlier in the hearings (March 10,
1938) :

‘*In the exercise of its quasi-legislative, or so-called
quasi-judicial functions, such as the fixing of rates and
the issuance of certificates authorizing the operation of
air lines, the agency would sit as an administrative

21

court entirely independent of the executive branch of
the Government.’’ Id., page 37, italics ours.

Application of the principles laid down to date mearmone
standard as to citizens applying for certificates of public
convenience and necessity authorizing air transportation
within the continental United States and another standard
as to citizens applying for certificates authorizing air trans-
portation between the continental United States and a terri-
tory, with no definition or way of ascertaining the standard
in the latter instance. If the findings of the Civil Aero-
nautics Board are to be disregarded and a carrier found not
to meet the requirements of the Act is to be granted a
certificate, uniformity of application of legal requirements
appear to require some definition and thet the selection of
such a carrier over other applicants should have a sound
relationship to foreign affairs. This important matter
should be determined by this court.

IN THE ABSENCE OF A STATUTE EXPRESSLY AUTHOR-
IZING THE PRESIDENT TO ORDER THE ISSUANCE OF A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
TO AN AIR CARRIER TO ENGAGE ONLY IN “OVERSEAS AIR
TRANSPORTATION” IN A CASE NOT INVOLVING “FOREIGN
AIR TRANSPORTATION”, THE BOARD DID NOT HAVE POWER
TO ISSUE SUCH CERTIFICATE AT THE DIRECTION OF THE
PRESIDENT, AS IT HAD PREVIOUSLY DETERMINED THAT
THE CARRIER DID NOT MEET THE STANDARDS PRESCRIBED
BY CONGRESS AS A PREREQUISITE TO THE ISSUING OF
SUCH CERTIFICATE@

As stated by Member Jones in his separate opinion (R.
68), the principal issues **

‘fare to be determined in accordance with the Civil

Aeronautics Act of 1938, as amended, particularly sec-

12 He stated the principal issues to be as follows:

“(1) Whether the existing air freight service is adequate and/or
whether there is a need for additional service in the transportation of
property by the carriers named in the Board’s order of investigation;
(2) whether additional routes are required by the public convenience

22

tions 205(a); 401; 404(a); 801; and 1002(b) ... In
making a recommendation to the President under Sec-
tion 801, the Board must arrive at a quasi-judicial de-
cision, which, incorporated in an opinion and order,
must be delivered to the President prior to publication.
This it must do as an independent body of experts en-
tirely free from executive control or influence. ‘Its
duties are performed without executive leave and, in
the contemplation of the statute, must be free from
executive control.’ ’’ ®

These issues, in so far as Alaska Airlines was concerned,
were answered in the negative by the Board’s opinion of
September 29, 1950 (R. 36-83) in which it refused to recom-
mend the issuance of a certificate of public convenience and
necessity to this carrier. As was stated by Member Jones
(R. 74):

‘‘The Civil Aeronautics Act does not authorize the
Board to. make new route awards based solely on na-
tional defense requirements. The phrase ‘and the na-
tional defense’ as used in the Declaration of Policy
must be read in context. It does not stand alone. It
must be considered together with such phrases as
‘sound economic conditions in [air transportation)],’
‘economic and efficient services,’ and ‘sound develop-
ment of air transportation’.

‘‘The Board adopted this view early in its history.
In a letter addressed to Congress through Senator
Walter F. George in 1942, it made abundantly clear
its belief that Congress had not intended to direct the
Board to achieve national defense objectives™ un-

and necessity; and (3) if any additional routes are required by the
public convenience and necessity, which applicant or applicants should
be selected to perform such services.”
18 333 U. S. at 109, quoting from Humphrey’s Executor v. United
States, 295 U. S. 602, 628.
14“Tf the contrary interpretations were adopted, there would be no
limit to the national defense projects which carriers might be expected
to perform; and the required financial assistance from Post Office appro-
priations might well be multiplied many times. The Board does not

23

related to the development of a sound air transpor-
tation system.”’ ‘

The Post Office Department took the position that there
was no requirement for additional services for the carriage
of mail in so far as the Postal Service was concerned
(R. 75).

It follows therefore that the order of the Board dated
May 24, 1951 (R-29-32) so far as it relates to Alaska Air-
lines, Inc., and the Certificate of Public Convenience and
Necessity issued to Alaska Airlines, Inc. (R-34-35) should
have been set aside by the court below.

Conclusion
The petition for a writ of certiorari should be granted.
Respectfully submitted,

Warren E. Mier,
Attorney for Petitioner,
910 Seventeenth Street, N. W.,
Washington 6, D. C.

understand that Congress intended to authorize the Board to require air
carriers, for example, to build up a large reservoir of aircraft, personnel,
equipment, and other facilities greatly in excess of the requirements of
a civil air transportation system, to be held virtually in trust or on eal!
for war air-transport purposes. Congress vested in the Board no power
by which it might effect such a result, and in the absence thereof, the
objective of such a reservoir of planes, equipment, and reserve personnel,
and organization could be realized only through the voluntary coopera-
tion of the carriers . . . It normally would not be possible to absorb
such a reservoir of aircraft, equipment, and such an organization in a
sound air transportation system”. (Underscoring supplied. )

Letter from the Chairman of the Civil Aeronautics Board in response
to 8. Res. 228; S. Doe. 206, Part 2, 77th Cong. 2d Sess., 1942.

24

APPENDIX A
RELEVANT STATUTORY PROVISIONS
28 U.S.C. 1254(1) provides:

‘*Cases in the courts of appeals may be reviewed by the -
Supreme Court by the following methods:

‘*(1) By writ of certiorari granted upon the petition of
any party to any civil or criminal case, before or after
rendition of judgment or decree ;’’

Sec. 1(21)(c), Civil Aeronautics Act, 52 Stat. 977, 49
U.S.C. 401 provides:

"aii(c) a place in the United States and any place outside
thereof, whether such commerce moves wholly by aircraft or
partly by aircraft and partly by other forms of transpor-
tation.

See. 205(a), Civil Aeronautics Act, 52 Stat. 984, 49 U.S.C.

425(a), provides:

6 Sec. 205 [52 Stat. 984, 49 U. S.C. 425] (a) The Authority
is empowered to perform such acts, to conduct such investi-
gations, to issue and amend such orders, and to make and
amend such general or special rules, regulations, and pro-
cedure, pursuant to and consistent with the provisions of
this Act, as it shall deem necessary to carry out such provi-
sions and to exercise and perform its powers and duties
under this Act. “”

“‘c00, 401, Civil Aeronautics Act, 52 Stat. 987, 49 U.S.C.
481 provides:

Src. 401 [52 Stat. 987, 49 U. S. C. 481] (a) No air carrier
shall engage in any air transportation unless there is in
force a certificate issued by the Authority authorizing such
air carrier to engage in such transportation: Provided,
That if an air carrier is engaged in such transportation on —
the date of the enactment of this Act, such air carrier may
continue so to engage between the same terminal and inter- —
mediate points for one hundred and twenty days after said

25

and twenty days such
rovided herein,

made in writing

shall be in such
and shall be accom-
such interested per-
on require.

Notice of Application

4c) Upon the filing of any such a
shall give due notice thereof to the
of such application in the office
Authority and to such o

Issuance of Certificate

“(d) (1) The Authority shall issue a certificate authoriz-
ing the whole or any part of the transportation covered by
the application, if it finds that the applicant is fit, willing,
and able to perform such transportation properly, and to
conform to the provisions of this Act and the rules, regula-
tions, and requirements of the Authority hereunder, and
that such transportation is required by the public conven-
ience and necessity; otherwise such application shall be
denied.

26

tion and to conform to the provisions of this Act and the
rules, regulations, and requirements of the Authority here-
under.

Existing Air Carriers

"(e) (1) If any applicant who makes application for a
certificate within one hundred and twenty days after the
date of enactment of this Act shall show that, from May 14,
1938, until the effective date of this section, it, or its prede-
cessor in interest, was an air carrier, continuously operat-
ing as such (except as to interruptions of service over which
the applicant or its predecessor in interest had no control),
the Authority, upon proof of such fact only, shall, unless
the service rendered by such applicant for such period was
inadequate and inefficient, issue a certificate or certificates,
authorizing such applicant to engage in air transportation
(A) with respect to all classes of traffic for which authoriza-
tion is sought, except mail, between the terminal and inter-
mediate points between which it, or its predecessor, so con-
tinuously operated between May 18, 1938, and the effective
date of this section, and (B) with respect to mail and all
other classes of traffic for which authorization is sought,
between the terminal and intermediate points between
which the applicant or its predecessor was authorized by
the Postmaster General prior to the effective date of this
section, to engage in the transportation of mail: Provided,
That no applicant holding an air-mail contract shall receive
a certificate authorizing it to serve any point not named in
such contract as awarded to it and not served by it prior
to April 1, 1938, if any other air carrier competitively serv-
ing the same point under authority of a contract as awarded
to such air carrier shall prove that it is adversely affected
thereby, and if the Authority shall also find that trans-
portation by the applicant to and from such point is not
required by the public convenience and necessity.

(2) If paragraph (1) of this subsection does not author-
ize the issuance of a certificate authorizing the transporta-
tion of mail between each of the points between which air-
mail service was provided for by the Act of Congress
making appropriations for the Treasury Department and
the Post Office Department, approved March 28, 1938, the

27

Authority shall, notwithstanding any other provision of
this Act, issue certificates authorizing the transportation
of mail, and all other classes of traffic for which authoriza-
tion is sought, between such points, namely, (A) from
Wichita, Kansas, to Pueblo, Colorado, via intermediate
cities; (B) from Bismarck, North Dakota, to Minot, North
Dakota ; (C) from Detroit, Michigan, to Sault Sainte Marie,
Michigan, via intermediate cities; (D) from Brownsville,
Texas, via Corpus Christi, to Houston to San Antonio,
Texas; (E) from Phoenix, Arizona, to Las Vegas, Nevada,
via intermediate cities; (F) from J acksonville, Florida, to
New Orleans, Louisiana, via intermediate cities; (G) from
Tampa, Florida, to Memphis, Tennessee, via intermediate
cities, and from Tampa, Florida, to Atlanta, Georgia, via
intermediate cities (which projects have been advertised) ;
and (H) by extension from Yakima, Washington, to Port-
land, Oregon; and (I) by extension from Grand Rapids,
Michigan, to Chicago, Illinois.

Terms and Conditions of Certificate

. (f) Each certificate issued under this section shall specify
the terminal points and intermediate points, if any, between
which the air carrier is authorized to engage in air trans-
portation and the service to be rendered ; and there shall be
attached to the exercise of the privileges granted by the
certificate, or amendment thereto, such reasonable terms,
conditions, and limitations as the public interest may re-
quire. A certificate issued under this section to engage in
foreign air transportation shall, insofar as the operation
is to take place without the United States, designate the
terminal and intermediate points only insofar as the Au-
thority shall deem practicable, and otherwise shall desig-
nate only the general route or routes to be followed. Any
air carrier holding a certificate for foreign air transporta-
tion shall be authorized to handle and transport mail of
countries other than the United States. No term, condition,
or limitation of a certificate shall restrict the right of an air
carrier to add to or change schedules, equipment, accommo-
dations, and facilities for performing the authorized trans-
portation and service as the development of the business

28

and the demands of the public shall require. No air carrier
shall be deemed to have violated any term, condition, or —
limitation of its certificate by landing or taking off during
an emergency at a point not named in its certificate or by
operating in an emergency, under regulations which may
be prescribed by the Authority, between terminal and inter-
mediate points other than those specified in its certificate.
Any air carrier may make charter trips or perform any —
other special service, without regard to the points named
in its certificate, under regulations prescribed by the
Authority.

Effective Date and Durution of Certificate

"(g) Each certificate shall be effective from the date speci-
fied therein, and shall continue in effect until suspended or
revoked as hereinafter provided, or until the Authority shall
certify that operation thereunder has ceased, or, if issued
for a limited period of time under subsection (d) (2) of this
section, shall continue in effect until the expiration thereof,
unless, prior to the date of expiration, such certificate shall
be suspended or revoked as provided herein, or the Author-
ity shall certify that operations thereunder have ceased:
Provided, That if any service authorized by a certificate is
not inaugurated within such period, not less than ninety
days, after the date of the authorization as shall be fixed by
the Authority, or if, for a period of ninety days or such other
period as may be designated by the Authority, any such
service is not operated, the Authority may by order, entered
after notice and hearing, direct that such certificate shall
thereupon cease to be effective to the extent of such service.

Authority to Modify, Suspend, or Revoke

(nh) The Authority, upon petition or complaint or upon
its own initiative, after notice and hearing, may alter,
amend, modify, or suspend any such certificate, in whole or
in part, if the public convenience and necessity so require,
or may revoke any such certificate, in whole or in part, for
intentional failure to comply with any provision of this title
or any order, rule, or regulation issued hereunder or any
term, condition, or limitation of such certificate: Provided,

29

That no such certificate shall be revoked unless the holder
thereof fails to comply, within a reasonable time to be fixed
by the Authority, with an order of the Authority command-
ing obedience to the provision,-or to the order (other than
an order issued in accordance with this proviso), rule, regu-
lation, term, condition, or limitation found by the Authority
to have been violated. Any interested person may file with
the Authority a protest or memorandum in support of or in
opposition to the alteration, amendment, modification, sus-
pension, or revocation of a certificate.

Transfer of Certificate

“ i) No certificate may be transferred unless such trans-
fer is approved by the Authority as being consistent with
the public interest.

Certain Rights Not Conferred by Certificate

'(j) No certificate shall confer any proprietary, property,
or exclusive right in the use of any air space, civil airway,
landing area, or air-navigation facility.

Application for Abandonment

‘(k) No air carrier shall abandon any route, or part
thereof, for which a certificate has been issued by the Au-
thority, unless, upon the application of such air carrier,
after notice and hearing, the Authority shall find such
abandonment to be in the public interest. Any interested
person may file with the Authority a protest or memo-
randum of opposition to or in support of any such abandon-
ment. The Authority may, by regulations or otherwise,
authorize such temporary suspension of service as may be
in the public interest.

Compliance With Labor Legislation

* (1) (1) Every air carrier shall maintain rates of com-
pensation, maximum hours, and other working conditions
and relations of all of its pilots and copilots who are en-
gaged in interstate air transportation within the continental
United States (not including Alaska) so as to conform with

30

decision numbered 83 made by the National Labor Board
on May 10, 1934, not withstanding any limitation therein as
to the period of its effectiveness.”

(2) Every air carrier shall maintain rates of compensa-
tion for all of its pilots and copilots who are engaged in
overseas or foreign air transportation or air transportation
wholly within a Territory or possession of the United
States, the minimum of which shall be not less, upon an
annual basis, than the compensation required to be paid
under said decision 83 for comparable service to pilots and
copilots engaged in interstate air transportation within
the continental United States (not including Alaska).

(3) Nothing herein contained shall be construed as re-
stricting the right of any such pilots or copilots, or other
employees, of any such air carrier to obtain by collective
bargaining higher rates of compensation or more favorable
working conditions or relations.

(4) It shall be a condition upon the holding of a certifi-
cate by any air carrier that such carrier shall comply with
title II of the Railway Labor Act, as amended.

(5) The term ‘‘pilot’’ as used in this subsection shall
mean an employee who is responsible for the manipulation
of or who manipulates the flight controls of an aircraft
while under way including take-off and landing of such air-
craft, and the term ‘‘copilot’’ as used in this subsection
shall mean an employee any part of whose duty is to assist
or relieve the pilot in such manipulation, and who is prop-
erly qualified to serve as, and holds a currently effective
airman certificate authorizing him to serve as, such pilot or
copilot.

Requirement as to Carriage of Mail

“(m) Whenever so authorized by its certificate, any air
carrier shall provide necessary and adequate facilities and
service for the transportation of mail, and shall transport
mail whenever regaiired by the Postmaster General.. Such

15 Para. (1) of Sec. 401 (1) was amended by act of April 29, 1942
56 Stat. 265. The amendment was repealed by Act of July 25, 1947,
61 Stat. 449.

31

air carrier shall be entitled to receive reasonable compensa-
tion therefor as hereinafter provided.

- Application for New Mail Service

(n) Whenever, from time to time, the Postmaster Gen-
eral shall find that the needs of the Postal Service require
the transportation of mail by aircraft between any points
within the United States or between the United States and
foreign countries, in addition to the transportation of mail
authorized in certificates then currently effective, the Post-
master General shall certify such finding to the Authority
and file therewith a statement showing such additional
service and the facilities necessary in connection therewith,
and a copy of such certification and statement shall be
posted for at least twenty days in the office of the secretary
of the Authority. The Authority shall, after notice and
hearing, and if found by it to be required by the public
convenience and necessity, make provision for such addi-
tional service, and the facilities necessary in connection
therewith, by issuing a new certificate or certificates or by
amending an existing certificate or certificates in accord-
ance with the provisions of this section.

See. 404(a), Civil Aeronautics Act, 52 Stat. 993, 49 U.S.C.
484(a) provides:

“Src. 404 [52 Stat. 993, 49 U. S.C. 484] (a) It shall be
the duty of every air carrier to provide and furnish inter-
state and overseas air transportation, as authorized by its
certificate, upon reasonable request therefor and to provide
reasonable through service in such air transportation in
connection with other air carriers; to provide safe and
adequate service, equipment, and facilities in connection
with such transportation ; to establish, observe, and enforce
just and reasonable individual and joint rates, fares, and
charges, and just and reasonable classifications, rules, regu-
lations, and practices, relating to such air transportation ;
and, in case of such joint rates, fares, and charges, to estab-
ish just, reasonable, and equitable divisions thereof as
‘between air carriers participating therein which shall not
unduly prefer or prejudice any of such participating air

carriers,

7

32

Sec. 406, Civil Aeronautics Act, 52 Stat. 998, 49 U.S.C.
486, provides:

Rates for Transportation of Mail
Authority to Fix Rates

* S20. 406 [52 Stat. 998, 49 U. S.C. 486] (a) The Author.
ity is empowered and directed, upon its own initiative or.
upon petition of the Postmaster General or an air carrier,
(1) to fix and determine from time to time, after notice and
hearing, the fair and reasonable rates of compensation for
the transportation of mail by aircraft, the facilities used and
useful therefor, and the services connected therewith (in-
cluding the transportation of mail by an air carrier by
other means than aircraft whenever such transportation is
‘incidental to the transportation of mail by aircraft or is
made necessary by conditions of emergency arising from
aircraft operation), by each holder of a certificate author-
izing the transportation of mail by aircraft, and to make
such rates effective from such date as it shal! determine to
be proper; (2) to prescribe the method or methods, by
aircraft-mile, pound-mile, weight, space, or any combination
‘thereof, or otherwise, for ascertaining such rates of com-
pensation for each air carrier or class of air carriers; and
(3) to publish the same; and the rates so fixed and deter-
mined shall be paid by the Postmaster General from appro-

priations for the transportation of mail by aircraft.

Rate-Making Elements

"yy In fixing and determining fair and reasonable rates
of compensation under this section, the Authority, con-
sidering the conditions peculiar to transportation by air-
craft and to the particular air carrier or class of air car-
riers, may fix different rates for different air carriers of
classes of air carriers, and different classes of service. In
determining the rate in each case, the Authority shall take
into consideration, among other factors, the condition that
such air earriers may hold and operate under certificates
authorizing the carriage of mail only by providing necessary
and adequate facilities and service for the transportation
of mail; such standards respecting the character and

33

quality of service to be rendered by air carriers as may
be prescribed by or pursuant to law; and the need of each
such air carrier for compensation for the transportation
of mail sufficient to insure the performance of such service,
and, together with all other revenue of the air carrier, to
enable such air carrier under honest, economical, and
efficient management, to maintain and continue the develop-
ment of air transportation to the extent and of the charac-
ter and quality required for the commerce of the United _
States, the Postal Service, and the national defense,

Statement of Postmaster General and Carrier

(c) Any petition for the fixing of fair and reasonable
rates of compensation under this section shall include a
statement of the rate the petitioner believes to be fair and
reasonable. The Postmaster General shall introduce as
part of the record in all proceedings under this section a
comprehensive statement of all service to be required of
the air carrier and such other information in his possession
as may be deemed by the Authority to be material to the

inquiry.
Weighing of Mail

“(a) The Postmaster General may weigh the mail trans-
ported by aircraft and make such computations for statisti-
cal and administrative purposes as may be required in the
interest of the mail service, The Postmaster General is
authorized to employ such clerical and other assistance as
may be required in connection with proceedings under this
Act. If the Authority shall determine that it is necessary
or advisable, in order to carry out the provisions of this Act,
to have additional and more frequent weighing of the mails,
the Postmaster General, upon request of the authority, shall
provide therefor in like manner, but such weighing need not
be for continuous periods of more than thirty days.

Availability of Appropriations

hi

(e) Except as otherwise provided in section 405(k), the
unexpended balances of all appropriations for the trans-
portation of mail by aircraft pursuant to contracts entered

34

into under the Air Mail Act of 1934, as amended, and the
unexpended balances of all appropriations available for the
transportation of mail by aircraft in Alaska, shall be avail-
able, in addition to the purposes stated in such appropria-
tions, for the payment of compensation by the Postmaster
General, as provided in this Act, for the transportation of
mail by aircraft, the facilities used and useful therefor, and
the services connected therewith, between points in the
continental United States or between points in Hawaii or
in Alaska or between points in the continental United States
and points in Canada within one hundred and fifty miles of
the international boundary line. Except as otherwise pro-
vided in section 405(k), the unexpended balances of all
appropriations for the transportation of mail by aircraft
pursuant to contracts entered into under the Act of March 8,
1928, as amended, shall be available, in addition to the pur-
poses stated in such appropriations, for payment to be
made by the Postmaster General, as provided by this Act,
in respect of the transportation of mail by aircraft, the
facilities used and useful therefor, and the services con-
nected therewith, between points in the United States and
points outside thereof, or between points in the continental
United States and Territories or possessions of the United
States or between Territories or possessions of the United
States.
Payments to Foreign Air Carriers

fy In any case where air transportation is performed
between the United States and any foreign country, both
by aircraft owned or. operated by one or more air carriers
holding a certificate under this title and by aircraft owned
or operated by one or more foreign air carriers, the Post-
master General shall not pay to or for the account of any
such foreign air carrier a rate of compensation for trans-
porting mail by aircraft between the United States and such
foreign country, which, in his opinion, will result (over such
reasonable period as the Postmaster General may deter
mine, taking account of exchange fluctuations and other fae
tors) in such foreign air carrier receiving a higher rate of
compensation for transporting such mail than such foreign
country pays to air carriers for transporting its mail by

35

aircraft between such foreign country and the United States,
or receiving a higher rate of compensation for transport-
ing such mail than a rate determined by the Postmaster
General to be comparable to the rate such foreign country
pays to air carriers for transporting its mail by aircraft
between such foreign country and an intermediate country
on the route of such air cartier between such foreign coun-
try and the United States.

Sec. 801, Civil Aeronautics Act, 52 Stat. 1014, 49 U. 8. C.
601, provides:

The President of the United States

7 Sec. 801 [52 Stat. 1014, 49 U. 8. C. 601] The issuance,
denial, transfer, amendment, cancellation, suspension, or
revocation of, and the terms, conditions, and limitations con-
tained in, any certificate authorizing an air carrier to engage
in overseas or foreign air transportation, or air transporta-
tion between places in the same Territory or possession, or
any permit issuable to any foreign air carrier under section
402, shall be subject to the approval of the President. Copies
of all applications in respect of such certificates and permits
shall be transmitted to the President by the Authority be-
fore hearing thereon, and all decisions thereon by the Au-
thority shall be submitted to the President before publica-
tion thereof. This section shall not apply to the issuance
or denial of any certificate issuable under section 401 (e)
or any permit issuable under section 402 (c) or to the
original terms, conditions, or limitations of any such
certificate or permit.

Sec. 1002(b), Civil Aeronautics Act, 2 Stat. 1018, 49
U.S. C. 642(b), provides:

“(b) The Authority is empowered at any time to institute
an investigation, on its own initiative, in any case and as to
any matter or thing concerning which complaint is author-
ized to be made to or before the Authority by any provision
of this Act, or concerning which any question may arise
under any of the provisions of this Act, or relating to the
enforcement of any of the provisions of this Act. The
Authority shall have the same power to proceed with any

investigation instituted on its own motion as though it had
been appealed to by complaint. *

Sec. 1006, Civil Aeronautics Act, 52 Stat. 1024, 49 U.S. ©,
646, provides:

Orders of Authority Subject to Review

*’ See. 1006 [52 Stat. 1024, 49 U. S.C. 646] (a) Any order,
affirmative or negative, issued by the Authority under this
Act, except any order in respect of any foreign air carrier
subject to the approval of the President as provided in see-
tion 801 of this Act, 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.

Venue

“ (b) A petition under this section shall be filed in the court
for the circuit wherein the petitioner resides or has his
principal place of business or in the United States Court of
Appeals for the District of Columbia.

Notice of Authority; Filing of Transcript

"“¢) A copy of the petition shall, upon filing, be forthwith
transmitted to the Authority by the clerk of the court; and
the Authority shall thereupon certify and file in the court a
transcript of the record, if any, upon which the order com-
plained of was entered.

Power of Court

(a) Upon transmittal of the petition to the Authority, the
court shall have exclusive jurisdiction to affirm, modify, or
set aside the order complained of, in whole or in part, and if
need be, to order further proceedings by the Authority.
Upon good cause shown, interlocutory relief may be granted
by stay of the order or by such mandatory or other relief as

37

may be appropriate: Provided, That no interlocutory re-
lief may be granted except upon at least five days’ notice to
the Authority.

Findings of Fact by Authority Conclusive

“(e) The findings of facts by the Authority, if supported
by substantial evidence, shall be conclusive. No objection
to an order of the Authority shall be considered by the court
unless such objection shall have been urged before the Au-
thority or, if it was not so urged, unless there were reason-
able grounds for failure to do so.

Certification or Certiorari

“ef ) The judgment and decree of the court affirming, modi-
fying, or setting aside any such order of the Authority shall
be subject only to review by the Supreme Court of the
United States upon certification or certiorari as provided in
sections 239 and 240 of the Judicial Code. ”

(2404)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1235%3A1. Public record. Not legal advice.