206 F.2d 423 | D.C. Cir. | 1953
Lead Opinion
. Petitioner was authorized to operate as a large irregular air carrier by a Letter of Registration issued under Part 291.17 (formerly 292.1(d)) of the Civil Aeronautics Board’s Economic Regulations.
The Board acted under Part 291.20 which provides that Letters of Registration “shall be subject to revocation * *' * for knowing and willful violation of any provisions of the act or of any order, rule, or regulation * *
(1) Part 291 of the Regulations which authorizes irregular carriers to provide only infrequent services in a non-uniform pattern of operations;
(2) a Board order previously entered against it to comply with Part 291 and to cease and desist from regular services. Part 291 exempts large irregular air carriers from compliance with various economic provisions applicable to certificated carriers authorized under § 401 to engage in regularly scheduled operations. “Irregular” air carriers offering regular services are therefore held to be in violation of the certification requirement of § 401.
Petitioner urges that the revocation order is invalid because (1) Part 291 does not apply to its operations, and (2) the cease and desist order is not res judicata against it. The contrary view we take of the cease and desist order is dis-positive of this appeal since that order requires compliance with Part 291.
The cease and desist order, entered more than two years prior to the orders under
We will not go behind that order on this appeal. Petitioner is bound by its failure to invoke judicial review either within the sixty clays provided by the Act or by requesting leave of court thereafter.
But even if we were to go behind the cease and desist order for the purpose of considering petitioner’s objections to Part 291, the result would be the same. Petitioner claims that regulation inapplicable because certain conditions therein were not in existence when it commenced operations early in June 1946. At that time, a 1938 regulation was in effect. It defined an operation as non-scheduled (later designated “irregular”), “if the air carrier does not hold out to the public by advertisement or otherwise that it will operate one or more airplanes between any designated points regularly or with a reasonable degree of regularity * *
All that remains then is to determine whether there is substantial evidence in the record as a whole to support the Board’s finding that petitioner has willfully violated Part 291 and the cease and desist order. Clearly, there is. Following entry of the cease and desist order, petitioner increased rather than decreased the regularity of its service. To cite merely one example, it expanded operations from an average of 2 flights per week between New York and San Juan, Puerto Rico for some 52 weeks to 4 flights per week between Miami and Newark for 56 consecutive weeks.
■[4,5] Equally without merit are other objections to the revocation order. One objection is that there was a denial of due process in the Board’s failure to schedule a hearing on petitioner’s long pending application for certification under § 401.
The orders under review are
Affirmed.
. 14 Code Fed. Regs. § 292 (1949), § 291 (Cum.Supp. 1951).
. Both, orders have been stayed pending review.
. 14 Code Fed. Regs. § 291.20 (Cum.Supp. 1951); see Air Transport Associates, Inc. v. Civil Aeronautics Board, 1952, 91 U.S.App.D.C. 147, 199 F.2d 181, certiorari denied, 1953, 344 U.S. 922, 73 S.Ct. 386.
. 52 Stat. 987, 1024 (1938), as amended, 49 U.S.C.A. §§ 481(a), 645(e) (1946).
. Part 291.1 provides in pertinent part:
“No air carrier shall be deemed to be an irregular air carrier unless the air transportation services offered and performed by it are of such infrequency as to preclude an implication of a uniform pattern or normal consistency of operation * * *4” 14 Oode Fed. Regs. (Cum. Supp. 1951).
. Civil Aeronautics Board v. Modern Air Transport, Inc., 2 Cir., 1950, 179 F.2d 622, 625.
. C.A.B. Opinion and Order No. 6780, p. 15 (September 10, 1952).
. See note 4, supra.
. C.A.B. Opinion and Order No. E-3906, pp. 30, 36 (February 15, 1950).
. Id. at 37. The Board entered the order under the authority of § 1002(e) of the Act which provides: “If the Board finds, after notice and hearing, in any investigation instituted upon complaint or upon its own initiative, that any person has failed to comply with any provisions of this chapter or any requirement established pursuant thereto, the Board shall issue an appropriate order to compel such person to comply therewith.” 52 Stat. 3018 (1938), as amended, 49 U.S.C.A. § 642(c).
. 52 Stat. 1024 (1938), as amended, 49 U.S.C.A. § 648(a) (3946) provides in pertinent part: ‘Any order, affirmative or negative, issued by the Board under this chapter S: * * shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within siwfy 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.” (Emphasis supplied.)
. For a discussion of res judicata and the administrative process, see Davis, Administrative Law 563-613 (1953).
. Federal Trade Commission v. Morton Salt Co.. 1948, 334 U.S. 37, 54, 68 S.Ct. 822, 92 L.Ed. 1196; Aiken v. Cogswell, 91 U.S.App.D.C. 339, 201 F.2d 705; United States v. Willard Tablet Co., 7 Cir., 1944, 141 F.2d 141, 143, 152 A.L.R. 1194; Plumy v. United States, 9 Cir., 1942, 126 F.2d 601, 603, certiorari denied, 1942, 317 U.S. 637, 63 S.Ct. 28, 87 L.Ed. 513.
. C.A.B. Reg. 400-1, as amended, December 7, 1938 (emphasis supplied).
. See note 1, supra (emphasis supplied).
. See note 14, supra.
. See note 4, supra. Petitioner’s application was filed on April 4, 1949, following commencement of cease and desist order proceedings but prior to the entrance of the order in February 1950.
. 52 Stat. 1025 (1938), as amended, 49 U.S.C.A. § 647(a) (1946).
Concurrence Opinion
(concurring in the result).
I concur in the result in this case, but I rest my concurrence upon the second point discussed by the court, that the company violated a regulation properly applied to it. The crucial phrase in the regulation adopted in 1938, eight years before this company came into existence, referred to' a holding out to the public “by advertisement or otherwise”. On May 17, 1946, the Board in two opinions
I think we should not attempt to decide in this case the res judicata point, since it is not necessary that we do so. That point presents a puzzling problem. The cease and desist order was not enforceable ex
When the pertinent parts of the several sections of the statute arc juxtaposed, the problem becomes clear. “It shall be the duty of every person subject to this chapter * * * to observe and comply with any order * * * issued by the Board * * so long as the same shall remain in effect.”
If a cease and desist order, not reviewed by a court of appeals, is res judicata of all matters involved in it, and if the Board can base revocation of a license upon disobedience of that order, the Board has a potent weapon for enforcement; potent enough, one would think, to remove court enforcement proceedings from the realm of usefulness. But Congress must have meant court enforcement proceedings to be used. On the other hand, it would seem odd that a company could ignore an order of the Board in the face of a statutory direction to obey and in the presence of a right to court review if the order was thought invalid. Having thus briefly depicted the problem, I would not attempt to answer it in this case, because here the ultimate result must be the same in any event.
The Federal Trade Commission cases upon which the court relies do not seem to me to be helpful here. In part they deal with different statutory situations, and in part they deal with the conclusiveness of findings of fact by the Commission.
. Investigation of Nonscheduled Air Services, 6 C.A.B. 1049, 1055; Page Airways, Inc., Investigation, 6 C.A.B. 1061, 1067.
. 52 Stat. 1025 (1938), as amended, 49 U. S.C.A. § 647.
. 52 Stat. 1024 (1938), as amended. 49 U. S.C.A. § 646.
. 52 Stat. 1023 (1938), as amended, 49 U. S.C.A. § 645(e).
. Ibid.
. Ibid.
. 52 Stat. 1024 (1938), as amended, 49 U. S.C.A. § 616(a).
. 52 Stat. 1025 (1938), as amended, 49 U. S.C.A. § 617(a).