CIVIL AERONAUTICS BOARD v. DELTA AIR LINES, INC.
No. 492
Supreme Court of the United States
Argued April 27, 1961.—Decided June 12, 1961.
367 U.S. 316
*Together with No. 493, Lake Central Airlines, Inc., v. Delta Air Lines, Inc., also on certiorari to the same Court.
R. S. Maurer argued the cause for respondent. With him on the briefs were James W. Callison and Robert Reed Gray.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case concerns the power of the Civil Aeronautics Board to alter a certificate of public convenience and necessity, granted to respondent Delta Air Lines, after that certificate had become effective under
At the conclusion of the Great Lakes-Southeast Service Case a number of awards were made, including one permitting Delta to extend an existing route northwest so as to provide service from Miami to Detroit and to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Certain restrictions for the protection of local carriers were imposed on many of the awards, these restrictions generally providing that flights between specified intermediate cities had to originate at or beyond given distant points. The stated purpose of these restrictions was to prevent the long-haul carrier from duplicating so-called “turn-around” service already provided by existing local carriers. One such restriction was applied to Delta‘s run between Detroit and various locations in Ohio but, by and large, Delta‘s award was free of protective limitations.
The Board‘s order issued on September 30, 1958, and it specified that Delta‘s certificate was to become effective on November 29, 1958, unless postponed by the Board prior to that date. Shortly thereafter, within time limits set by the Board,2 numerous petitions for reconsideration
“To the extent that we have considered the petitions for reconsideration in the present order we have done so only for the purposes of assessing the probability of error in our original decision. We feel that such action is necessary to a fair consideration of the stay requests, and is in no way prejudicial to the legal rights of those parties seeking reconsideration. Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.”
failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. After the expiration of the period of filing a petition, a motion for leave to file such petition may be filed; but no such motion shall be granted except on a showing of unusual and exceptional circumstances, constituting good cause for failure to make timely filing. Within ten (10) days after a petition for reconsideration, rehearing, or reargument is filed, any party to the proceeding may file an answer in support of or in opposition to the petition.”
Delta sought review of this order before the Board, challenging the Board‘s power to change the terms of its certificate after the effective date thereof without notice or hearing. The Board overruled Delta‘s objection, stating that: “[W]e believe we have such power, and we have exercised it in the past. Moreover, there is no showing, and we are unable to conclude, that any significant adverse effect will result to either Delta or the public from observance of the conditions here involved.” On review in the Court of Appeals for the Second Circuit, however,
The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a certificate of public convenience and necessity once that certificate has gone into effect? If not, should it make any difference that the Board has purported to reserve jurisdiction prior to certification to make summary modifications pursuant to petitions for reconsideration? We think that both these questions must be answered in the negative.
Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other.5 Since these policies are in tension, it is necessary
consistently reflected the requirement of the public interest that the record in major route cases be brought to a close as expeditiously as possible, consistent with the requirements of full hearings; so that final decision may be rendered promptly. Institution of needed new services could be endlessly delayed were we to permit the record to be reopened in the final procedural stages of a case for the submission of more recent operating data (and the attendant cross-examination and exchange of rebuttal evidence). Only in the cases where the situation under consideration has changed radically would such a course of action be justified.”
“AUTHORITY TO MODIFY, SUSPEND, OR REVOKE
“(g) The Board upon petition or complaint or upon its own initiative, after notice and hearings, 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, That no such certificate shall be revoked unless the holder thereof fails to comply, within a reasonable time to be fixed by the Board, with an order of the Board commanding obedience to the provision, or to the order (other than an order issued in accordance with this proviso), rule, regulation, term, condition, or limitation found by the Bоard to have been violated. Any interested person may file with the Board a protest or memorandum in support of or in opposition to the alteration, amendment, modification, suspension, or revocation of the certificate.” (Emphasis added.)
This language represents to us an attempt by Congress to give the Board comprehensive instructions to meet all contingencies and the Board‘s duty is to follow these instructions,7 particularly in light of the fact that obedience thereto raises no substantial obstacles. It is true, of course, that statutory language necessarily derives much of its meaning from the surrounding circumstances. However, we think that, while there is no legislative his-
However, petitioners argue that there is an implied exception to the statutory mandate when the Board, pursuant to a petition for reconsideration filed before the certificate‘s effective date, makes a statement that the certificate is subject to later amendment after further deliberation upon the petition. Petitioners admit that there is no express statutory authority for the Board to entertain
The appeal of this argument comes, in the main, from the general notion that an administrative order is not “final,” for the purposes of judicial review, until outstanding petitions for reconsideration have been disposed of. See, e. g., Outland v. Civil Aeronautics Board, 109 U. S. App. D. C. 90, 284 F. 2d 224; Braniff Airways, Inc., v. Civil Aeronautics Board, 79 U. S. App. D. C. 341, 147 F. 2d 152. Once it is established that the certificate is not “final” for one purpose, the argument runs, then it is logical to assume that the certificate lacks “finality” for another. The difficulties with this line of reasoning, however, are many. First, insofar as it is bottomed on cases such as Outland and Braniff, the argument relies on holdings that were never made. The Courts of Appeals in these cases decided only that petitions for review were timely if filed in time from the date on which the Board disposed of pending petitions for recоnsideration; the question whether the Board‘s action on the petitions for reconsideration should have been taken after notice and hearing did not arise. Furthermore, petitioners’ argument skips an important logical step; it assumes, without explanation, that questions of administrative finality present the same problems, and therefore deserve the same solutions, as questions concerning the timeliness of an appeal.
“The tendency to assume that a word which appears in two оr more legal rules, and so in connection with more than one purpose, has, and should have precisely the same scope in all of them runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, The Logical and Legal Bases of the Conflict of Laws, 159.11
Thirdly, were we to adopt the position urged by petitioners, we would have to hold that, in the words of a former chairman of the Board, the power to reconsider a case may be the lever for “nullify[ing] an express provision of the Act.” Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384. As Commissioner Ryan indicated, the power the Board asks for in this case seems nothing more or less than the power to do indirectly what it cannot do directly. Parenthetically, it should be noted that, for purposes of this dispute, it is difficult to draw a distinction between a petition for reconsideration filed by a party and one initiated by the Board sua sponte. Sprague v. Woll, 122 F. 2d 128. This being the case, it is all the more significant that the Court in United States v. Seatrain Lines, 329 U.S. 424, while overruling the Interstate
reasons stated in Seatrain, supra, at 432. Similarly, the cases involving certificates under the Federal Communications Act are distinguishable for the reasons stated by Commissioner Ryan. See Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384-385.
Although we feel that the language and background of the statute are sufficiently clear so that affirmance can rest solely on that basis, it seems appropriate, in light of petitioners’ vigorous assertion that policy reasons compel their result, to discuss some of the ramifications of our decision. In the first place, it bears repetition that we are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute. Thus, for example, the Board may reconsider an effective certificate at any time if it affords the certificated carrier notice and hearing prior to decision; or, if it feels uncertain about the decision prior to its effective date, it may рostpone the effective date until all differences have been resolved; and, if neither of these procedures seem practical in a given case, the Board may issue a temporary certificate set to expire on the date the Board prescribes for re-examination.12
Furthermore, it would seem that any realistic appraisal of the relative hardships involved in this case cuts in favor of the respondent. To be sure, the Board may be able to act quicker under the rule it espouses and, by eliminating the necessity of a new hearing, Lake Central will be spared the expense of preparing a new record. However, were the Board correct, respondent would be subjected to the loss of valuable routes, routes it had already begun to operate after considerable initial investment, without being heard in opposition. The Board points out that respondent had notice that the Board had reserved the right to amend the certificate. But it is nоt clear what comfort respondent could take from such notice; respondent could not hedge, since
advance reservations. Just such a contention was made by Delta before the Board in its petition for a stay of the Board‘s May 7, 1959, order on reconsideration. Delta pointed out: “It is a fact that schedules for May and June, and timetables showing this early morning Chicago-Indianapolis-Evansville and Evansville-Indianapolis-Chicago service, have been released to the public and many reservations have been booked for these months. Furthermore, pilot bidding procedures and problems involving equipment rotation prohibit the immediate cancellаtion of this flight on short notice.”
In short, our conclusion is that Congress wanted certificated carriers to enjoy “security of route” so that they might invest the considerable sums required to support their operations; and, to this end, Congress provided certain minimum protections before a certificated operation could be cancelled. We do not think it too much to ask thаt the Board furnish these minimum protections as a matter of course, whether or not the Board in a given
Petitioners’ final argument is that their position is supported by consistent administrative construction and analogous case authority. The administrative construction argument appears less than substantial in light of the fact that, on the last and, it appears, only occasion when the present question was expressly considered, the Board said in dictum that it had “grave doubts” about proceeding in the manner followed in this case. Kansas City-Memphis-Florida Case, 9 C. A. B. 401;14 cf. Smith Bros., Revocation of Certificate, 33 M. C. C. 465. See generally Ryan, supra, where Commissioner Ryan went to great lengths to expose what he felt were the fallacies in the contentions now advanced by petitioners. With respect to prior cases, petitioners again are unable to cite any holdings on point. Petitioners rely heavily on Frontier Airlines, Inc., v. Civil Aeronautics Board, 104 U. S. App. D. C. 78, 259 F. 2d 808, but the dispute here involved was not raised in that case. The closest analogy in Frontier
“[T]he order on reconsideration is a nullity because it was rendered after the petition for judicial review had been filed and after the certificates previously issued had become effective; and, if that order is a nullity, the basic order is also a nullity because it fails to cover certain points.
“We do not find the order denying reconsideration invalid because rendered after this petition was filed. No harm was done. Had the Board been of a mind to grant reconsideration, it could have so indicated and a motion to remand would have been in order.”
Perhaps more favorable to petitioners is this Court‘s decision in United States v. Rock Island Motor Transport Co., 340 U.S. 419, where it was held that the Interstate Commerce Commission could modify a motor carrier‘s effective certificate pursuant to a reservation in the initial order. However, two important distinctions between that case and this are apparent: (1) the Motor Carrier Act makes express provision for summary modifications after certification,
Affirmed.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN join, dissenting.
This is an airline route proceeding brought before the Civil Aeronautics Board. The case involves the effect upon the proceeding, and hence upon a certificate of convenience and necessity ordered to be issued therein, of a timely motion for reconsideration.
that the Court said “the certificate, when finally granted and thе time fixed for rehearing has passed, is not subject to revocation in whole or in part except as specifically authorized . . . .” The point is that, under the Water Carrier Act, the Commission had express authority to entertain petitions for reconsideration at any time. See
This case is but a facet of a multi-party, highly complex and protracted route proceeding, known as the “Great Lakes-Southeast Service Case,” commenced before the Civil Aeronautics Board in May 1955. It involved, “predominantly,” the “long-haul” service neеds of an area extending roughly between the Great Lakes and Florida. Numerous trunkline carriers sought new or additional operating rights in that area. The Board was also confronted with a number of petitions by local carriers for authority to provide new or improved short-haul service between certain intermediate cities in that area.
In an effort to keep the proceeding within manageable bounds, the Board declined to consolidate those short-haul petitions with this case, and, instead, directed the institution of a separate proceeding (Great Lakes Local Service Investigation) for their resolution, but it did announce that, to make sure that this separation would not deprive them of an opportunity to be heard in protection of their rights, the local service carriers would be permitted to intervene in this case.
As one of the many contending trunkline carriers, respondent, Delta Air Lines, Inc., petitioned for authority (1) to extend an existing route northwesterly to provide service from Miami to Detroit, and (2) to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Petitioner, Lake Central Airlines, Inc., a local or short-haul carrier operating a line betweеn Chicago and Indianapolis, and also serving Louisville, intervened to object to the Delta petition unless its proposed new service to Indianapolis and Louisville be restricted to northbound flights originating, and to southbound flights terminating, at or south of Atlanta. Upon this issue, Lake Central offered evidence that it would suffer injury and damage, through diversion of its local traffic, by the proposed new Delta service unless it be so restricted.
On September 30, 1958, the Board filed its opinion and order in which, among other things, it authorized Delta to add Indianapolis and Louisville as intermediate points on its Chicago-to-Miami route, without imposing the restrictions that Lake Central had asked. Consistently with its custom, the Board stated in its order that the certificate thereby authorized to Delta would become effective on the 60th day after entry of the order (November 29).
Within the 30 days allowed by the Board‘s rule for the filing of a motion for reconsideration,2 Lake Central filed with the Board on October 31, 1958, its motion for reconsideration, elaborating the grounds it had asserted and supported with evidence, in opposition to Delta‘s petition. It also asked in that motion that the effective date of the Delta certificate be stayed pending decision by the Board of the motion for reconsideration.
On November 28, 1958, one day prior to the date upon which, as stated in the Board‘s order of September 30, the Delta certificate would become effective, the Board filed a lengthy memorandum and order in which it denied Lake Central‘s request (and also—with one exception not material here—the similar requests of others) for a stay of the effective date of the Delta certificate until after the Board had decided Lake Central‘s motion for reconsideration. In that order, the Board expressed its view that “the parties [had] not made a sufficient showing of prob-
Then, turning to the motions for reconsideration, the Board said in that order that, “because of the detailed matters raised in the petitions for reconsideration, it [would] not be possible to finally dispose of them until after November 29,” but the Board promptly would “address itself to the merits of the petitions for reconsideration, and [its] order dealing with [those] matters [would] issue at a later date.” It thus and otherwise made clear that its denial of the stays was not intended to be “[in any] way prejudicial to the legal rights of those parties seeking reconsideration.” It conсluded: “Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.”
Thereafter, on May 7, 1959, the Board granted Lake Central‘s petition for reconsideration and accordingly entered its final order restricting Delta‘s service of Indianapolis and Louisville to northbound flights originating, and to southbound flights terminating, at or south of Atlanta; but the Board did say in that order that “If, after deciding the issues presented in the Great Lakes Local Service case, we conclude that the long-haul restrictions are not required, we will have full freedom to remove them at that time.” It is this order that gives rise to the present controversy.
On Delta‘s appeal from that order, the United States Court of Appeals for the Second Circuit reversed. 280 F. 2d 43. It held that, notwithstanding the timely filed and unruled motion for reconsideration, “once [the Board allowed the] certificate [to] become effective,” it lost all power thereafter to grant the motion and accordingly to modify its order and the resulting certificate, and that
The Court now affirms that judgment. It does so upon grounds which, I am bound to say, with all respect, seem to me to be spurious and legally indefensible, as I shall endeavor to show.
Although the Federal Aviation Act does not expressly provide for motions for reconsideration by the Board of its orders, it is clear, and indeed it is agreed by the parties, that the Board has power to provide for, and to entertain, such motions, for “[t]he power to reconsider is inherent in the power to decide.” Albertson v. Federal Communications Comm‘n, 87 U. S. App. D. C. 39, 41, 182 F. 2d 397, 399. See also Braniff Airways v. Civil Aeronautics Board, 79 U. S. App. D. C. 341, 147 F. 2d 152.
Pursuant to that power, the Board adopted its Rule of Practice prescribing, in pertinent part, that “a petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding . . .”3 It is admitted that Lake Central filed its motion for reconsideration within the 30 days allowed by that rule.
Under every relevant reported decision, save one to be later noted, a timely motion for reconsideration, being an authorized and appropriate step in the proсeeding, “operate[s] to retain the Board‘s authority over the [original] order,” Waterman S. S. Corp. v. Civil Aeronautics Board, 159 F. 2d 828, 829 (C. A. 5th Cir.),
It seems necessarily true, and is well settled by the cases, that “Where a motion for rehearing is in fact filed there is no final action until the rehearing is denied . . . [for] there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary,” Outland v. Civil Aeronautics Board, 109 U. S. App. D. C., at 93, 284 F. 2d, at 227, and “although the [motion] did not supersede or suspend the order, [it did operate] to retain the Board‘s authority over the order, so that the order overruling the motion should be taken as the final . . . [order] intended by the statute to start the running of the sixty-day period for judicial review.” Waterman S. S. Corp. v. Civil Aeronautics Board, supra, at 829. It nеcessarily follows that, if a timely motion for reconsideration is pending before the Board, its “proposed decision” (id., at 828) has “not become final in the sense that it [is] no longer subject to change upon reconsideration,” Enterprise Co. v. Federal Communications Comm‘n, 97 U. S. App. D. C., at 378, 231 F. 2d, at 712, and “jurisdiction over [that] order remains with the [Board] until the time for appeal has expired, and that time is tolled by an application for rehearing.” (Ibid.) Hence, “no [final] rights accrued to [Delta] as a result of the order originally granting [its] permit,” Black River Valley Broadcasts v. McNinch, 69 App. D. C., at 316, 101 F. 2d, at 240. See also, e. g., Braniff Airways v. Civil Aeronautics Board, supra; Albertson v. Federal Communications Comm‘n, supra; Western Air Lines v. Civil Aeronautics Board, 194 F. 2d 211 (C. A. 9th Cir.); and Butterfield Theatres v. Federal Communications Comm‘n, 99 U. S. App. D. C. 71, 237 F. 2d 552.
“There is no doubt under the decisions and practice in this Court that where a motion for a new trial in a court of law, or a petition for a rehearing in a court of equity, is duly and seasonably filed, it suspends the running of the time for taking . . . an appeal, and that the time within which [a] proceeding to review must be initiated begins from the date of the denial of . . . the motion . . . ,” Morse v. United States, 270 U. S. 151, 153–154, and “[t]his is also true in administrative proceedings,” Black River Valley Broadcasts v. McNinch, 69 App. D. C., at 316, 101 F. 2d, at 240.4
The only reported decision to the contrary is Consolidated Flowers Shipments v. Civil Aeronautics Board, 205 F. 2d 449 (C. A. 9th Cir.). It was there held that the time within which a petition for review must be filed runs from the date of the Board‘s decision, not from the date on whiсh it overruled a timely motion for reconsideration; and, inasmuch as the petition for review had not been filed within the former period, the court dismissed the petition as untimely. Recognizing that this result was contrary to its prior decisions,5 the Court thought it was
And on May 1, 1961, the Ninth Circuit itself specifically overruled that case. Samuel B. Franklin & Co. v. Securities Exchange Commission, 290 F. 2d 719.
There is only one reported decision, involving procedures before the Civil Aeronautics Board, that has presented the precise question we have here. It is Frontier Airlines, Inc., v. Civil Aeronautics Board, 104 U. S. App. D. C. 78, 259 F. 2d 808. There, just as here, after a Board certificate had been permitted to become “effective,” the Board granted an earlier and timely filed motion for reconsideration and revised the certificate accordingly. It was contended that the revision of the order and, hence, also of the certificate, so made, was “a nullity because it was rendered . . . after the certificate . . . had become effective.” (104 U. S. App. D. C., at 80, 259 F. 2d, at 810.) That contention was there soundly rejected.
It therefore seems quite clear to me that, under historic legal procedures and all, save one, of the numerous relevant decisions, the timely filing of the motion for reconsideration—being a legally authorized step in the proceeding—kept the proceeding open and continuing; that having the power, as well as the duty, to decide that motion, the Board had power to grant it, as it did, and thus, necessarily, accordingly to revise its earlier decision—which, until then, was only “a proposed decision” (Waterman case, supra, at 828)—and that, inasmuch as the Board sustained that motion, the earlier “proposed decision” never did become the final decision in the proceeding.
Inasmuch as all of the reported cases, save the discredited and now overruled Consolidated Flowers case, supra, are against it, Delta is compelled to rely almost entirely on its claim that the “plain language” of
The obvious defects in that argument are that (1) under
Surely it cannot be doubted that, if the Board, instead of granting it, had denied the motion for reconsideration, the Court of Appeals, on judicial review, or this Court on certiorari, could reverse the Board‘s decision and remand the case to the Board with directions to grant the motion for reconsideration. It is certain that such a judgment would operate not only on the Board‘s decision but, as well, on its “effective” certificate. If the Board has power, when thus directed by the judgment of a reviewing court, to revise, modify or vacate its erroneous decision and its resulting certificate, even though “effective,” why should the result be different if the Board, without such judicial direction, notes its error, grants the timely filed and pending motion for reconsideration, and accordingly revises its decision and the resulting certificate?
Apart from the discredited and now overruled Ninth Circuit case of Consolidated Flowers Shipments v. Civil Aeronautics Board, supra, Delta cites no case that involves the effect upon a Board decision of a timely filed motion
The only relevant statement in the Seatrain case, supra, is squarely opposed to Delta‘s position, namely, “The certificate, when finally granted and the time fixed for rehearing it has passed, is not subject to revocation in whole or in part except as specifically authorized by Congress [i. e., in an independent plenary proceeding].” 329 U. S., at 432, 433. (Emphasis added.) Here, “the time fixed for rehearing [had not] passed,” but, instead, an appropriate motion for reconsideration had been timely filed and was pending. Surely, the Board not only had power, but also a duty, to rule on that motion and, if it found it meritorious, to sustain it, and accordingly to revise its decision and resulting certificate.
The Watson case, supra, has no relevance whatever to this one. In the Smith case, supra, the Commission was careful to point out that “. . . the certificate marks the end of the proceedings, just as the entry of a final judgment or decree marks the end of a court proceeding. . . .” 33 M. C. C., at 472. (Emphasis added.) It is certain that “a proposed decision” (Waterman case, supra, at 228) of a court does not, while a timely filed
Here, as in Western Air Lines v. Civil Aeronautics Board, 194 F. 2d, 211, 214 (C. A. 9th Cir.), Delta “acted with its eyes open and at its own risk. It was aware that the proceedings before the Board had not become final, and would not until the expiration of the period of 30 days within which petitions for reconsideration might be filed.”
Surely Lake Central‘s timely filed motion for reconsideration kept the whole proceeding open, including the Board‘s order and resulting certificate, until that motion
It is not to be gainsaid that the practice, sometimes, as here, followed by the Board, of permitting route certificates to become “effective” while nonfrivolous motions for rehearing or reconsideration are pending undetermined,7 is perilous business and only rarely, if ever, is justified. But it does not follow that, once having permitted a route certificate to become “effective,” the Board has lost all power to decide a pending motion for reconsideration, and, if found meritorious, to grant it, and thus itself to rectify the errors in its “proрosed decision” and in the route certificate that was thereby erroneously authorized.
For these reasons, I think the Court has fallen into clear error in affirming the judgment of the court below, which, in my view, is contrary to the settled law and should be reversed.
Notes
“Petition for reconsideration—(a) Time for filing. A petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding unless the time is shortened or enlarged by the Board, except that such petition may not be filed with respect to an initial decision which has become final through failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. . . .”
In a recent revision of its Rules, the Board has reduced the time within which a petition for reconsideration may be filed from 30 to 20 days. See
See note 2.
See Saginaw Broadcasting Co. v. Federal Communications Comm‘n, 68 App. D. C. 282, 287, 96 F. 2d 554, 559; Southland Industries, Inc., v. Federal Communications Comm‘n, 69 App. D. C. 82, 99 F. 2d 117; Woodmen of World Life Ins. Assn. v. Federal Communications Comm‘n, 69 App. D. C. 87, 99 F. 2d 122; Red River Broadcasting Co. v. Federal Communications Comm‘n, 69 App. D. C. 1, 98 F. 2d 282.
See Western Air Lines v. Civil Aeronautics Board, 196 F. 2d 933 (C. A. 9th Cir.); Southwest Airways Co. v. Civil Aeronautics Board, 196 F. 2d 937; Western Air Lines v. Civil Aeronautics Board, 194 F. 2d 211.
In Outland v. Civil Aeronautics Board, supra, the United States Court of Appeals for the District of Columbia exposed the fallacy in, and soundly rejected the reasoning of, the Consolidated Flowers case, supra, in the following language:
“The legislative history of
5 U. S. C. A. § 1009 (c) indicates that it was adopted to achieve harmony with the holding in Levers v. Anderson, 1945, 326 U. S. 219, 66 S. Ct. 72, 90 L. Ed. 26 to the effect that a motion for rehearing was not necessary to exhaust administrative remedies. However, while making judicial review available without a motion for rehearing, that statute did not operate to repeal the law with respect to finality. Where a motion for rehearing is in fact filed there is no final action until the rehearing is denied, as we said in Braniff Airways, Inc. v. Civil Aeronautics Board, supra.Section 1009 (c) does not command a motion for rehearing in order to reach finality by exhaustion of administrative remedies; it leaves that to each litigant‘s choice. But when the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary. Practical considerations, therefore, dictate that when a petition for rehearing is filed, review may properly be deferred until this has been acted upon. The contrary result reached by the Ninth Circuit has caused parties to file so called ‘protective’ petitions for judicial review while petitions for rehearing before the Board were pending. A whole train of unnecessary consequences flowed from this: the Board and other parties may be called upon to respond and oppose the motion for review; when the Board acts, the petition for judicial review must be amended to bring the petition up to date.“We hold that when a motion for rehearing is made, the time for filing a petition for judicial review does not begin to run until the motion for rehearing is acted upon by the Board.” 109 U. S. App. D. C., at 92-93, 284 F. 2d, at 227-228.
In many instances, the Board has permitted certificates to become effective notwithstanding a motion or motions for reconsideration were pending undetermined. And in a number of such cases, as here, the Board has granted such motions and accordingly modified the “effective” certificate. See, e. g., North Central case, 8 C. A. B. 208; Cincinnati-New York Additional Service, 8 C. A. B. 603; United-Western, Acquisition of Air Carrier Property, 11 C. A. B. 701; Service to Phoenix case, Order E-12039 (1957); South Central Area Local Service case, Order E-14219 (1959).