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02/07/67 the City of San Antonio v. Civil Aeronautics Board

February 7, 1967

COMMERCE

v.

CIVIL AERONAUTICS BOARD, THE GREATER TAMPA CHAMBER OF COMMERCE, THE CITY OF TAMPA, AND THE COUNTY OF

HILLSBOROUGH, FLORIDA

v.

CIVIL AERONAUTICS BOARD, STATE OF WISCONSIN

v.

CIVIL



Bastian, Senior Circuit Judge, and Wright and McGowan, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

THE CITY OF SAN ANTONIO and THE SAN ANTONIO CHAMBER OF

AERONAUTICS BOARD 1967.CDC.24

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT

The Transpacific Route Investigation is a new route proceeding now being conducted by the Civil Aeronautics Board involving air carrier certification pursuant to Section 4011 of the Federal Aviation Act covering transportation between the United States mainland and Hawaii and other areas of the Pacific. These appeals challenge certain preliminary orders issued by the Board in that proceeding.

By order dated June 15, 1965, the Board instituted the current2 Transpacific Route Investigation to examine "the pattern of operations by United States carriers in foreign and overseas air transportation in the Pacific" and to consider and dispose of "applications with respect to such air transportation." By May 25, 1966, over 40 applications for certification from various carriers, including all 11 domestic trunk lines, three all-cargo carriers, and two Pacific Northwest-Alaska carriers, had been received. Also on file at that time were motions from 20 carriers to consolidate for hearing the applications for certification.

On May 25, 1966, the Board issued a consolidation order limiting consideration of non-stop service to the Pacific to 25 mainland cities. The carrier applications as filed had proposed non-stop service to and from a total of 72 mainland cities. In eliminating 47 of these cities from consideration in the current proceeding, the Board used three criteria: size, traffic generating capacity, and geographical location. As stated by the Board:

"With minor exceptions necessitated by considerations of geographical balance, the cities selected are in the top 25 cities from the standpoint of population, with metropolitan area populations of 1 million or more, and rank in the top 25 mainland U.S. cities in terms of domestic passengers produced. These are the cities which can, in fact, most realistically be related to foreseeable future service requirements."

Tampa, Florida, and San Antonio, Texas, though in the list of 72 cities found in the applications of the carriers, were not selected for non-stop service consideration in the consolidated proceedings. Petitions for reconsideration of the consolidation order were filed in behalf of these two cities and were denied by the Board. Petitions to intervene in the proceedings were also filed by Tampa and San Antonio, and by the State of Wisconsin in behalf of Milwaukee. These three petitions were denied by the Examiner and that denial was affirmed by the Board. In these appeals this court is asked to review the action of the Board in failing to include Tampa and San Antonio in its consolidation order, and in denying the applications to intervene filed in behalf of Tampa, San Antonio, and Milwaukee. I

With reference to the consolidation order, petitioners contend that the Board prejudged their transportation needs by failing to include them in the list of the cities to be considered in the current Pacific study. They also maintain that the criteria used by the Board were either illegal per se or arbitrarily applied as to them, and that the findings on which the consolidation order is based are inadequate in that they do not comply with the requirements of 5 U.S. C.A. § 557(c) (1966), formerly Section 8(b) of the Administrative Procedure Act, 5 U.S.C. 1007.3

No principle of administrative law is more firmly established than that of agency control of its own calendar. Practical problems of calendar administration confront an agency whenever related applications are pending at the same time. Consolidation, scope of the inquiry, and similar questions are housekeeping details addressed to the discretion of the agency and, due process or statutory considerations aside,4 are no concern of the courts.5 "Congress plainly intended to leave the Board free to work out application procedures reasonably adapted to fair and orderly administration of its complex responsibilities." Civil Aeronautics Board v. State Airlines, Inc., 338 U.S. 572, 576, 94 L. Ed. 353, 70 S. Ct. 379 (1950). This is precisely what Congress had in mind when, in Section 1001 of the Federal Aviation Act, it granted the Board authority to conduct its "proceedings in such manner as will be conducive to the proper dispatch of business and to the ends of justice." 49 U.S.C. § 1481.

In this transpacific study the Board was confronted with carriers' applications for non-stop Pacific service from 72 cities. It could have decided to hear the applications one at a time, all at one time, or some now and some later. Neither Tampa nor San Antonio suggests that the applications should have been heard one at a time. The Board decided that to hear them all at one time "could produce a proceeding of virtually unlimited proportions and would seriously delay our reexamination of the transpacific route pattern, a matter which is deemed by the President and the Board to be one of high priority."

Having made that judgment, the Board was required to develop criteria for determining which applications would be heard first. The study obviously had to be broad enough to reflect the service needs of the whole country and, at the same time, to discover which mainland cities were best situated to accommodate these needs in the immediate future. The proceeding also had to be kept within manageable limits lest the Board be paralyzed in performing its function. In short, the line between those of the 72 cities which would be considered for non-stop service in the current proceeding and those which would not had ...


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