(concurring in part, dissenting in part).
Petitioners, as large irregular carriers, are engaged in foreign and domestic supplemental air service. Their domestic service is involved in their petition for review. Petitioners have been operating by permission of respondent Board. The permission was initially in the form of temporary exemptions granted under section 416 of the Act. These exemptions authorized irregular operations without certification of the carriers under provisions of the Act governing “regular” operations. Later, petitioners continued to operate under “letters of registration,” and still later they were required to and did file applications for individual exemptions, their operating authority to be continued, if such applications were timely filed, under prior letters of registration until disposition of the applications. There was still another change in status in respects not material to the questions now presented. By whatever name their operating authority may be called the fact is that petitioners since 1946 have been operating as large irregular carriers with the permission and under the authority of the Board. Accordingly, they were licensees as the term “license” is defined in section 2(e) of the Administrative Procedure Act.1 Nevertheless, their permission to *228operate domestically has been terminated by the order under review. This is so whether the order is considered as a revocation of their licenses, a denial of applications for new licenses, or a refusal to renew present operating authority. The essence of the matter, both procedurally and substantively, is that petitioners’ licenses have been terminated. The question is whether this has been accomplished in a valid manner.
What eventuated was a proceeding under the rule-making provisions of the Administrative Procedure Act. The declared purpose of this investigative proceeding was to determine, first, whether the irregular type of air carrier operations was in the public interest and, if so, secondly, which of the carriers engaged in such operations should be authorized to continue, and under what type of operating authority. The Board found, first, that the continuation of supplemental irregular operations was in the public interest and, secondly, that petitioners, due to past violations of the Act, would not be authorized to. continue their operations.2
I think the licenses have not been validly terminated. The reasons assigned by the Board were past violations of the Act which had not been specified in any notice given to petitioners prior to Board action based on the violations found. No one could well contend that a person could be validly tried upon a general charge of violation of law, notwithstanding after the evidence was in some specific law or laws should be found to have been violated. Of course these proceedings were not a trial for an oifense, but the analogy is instructive. Petitioners were advised that the investigation would determine which carriers would be permitted to continue in operation if irregular operations were found to be in the public interest, and that previous violations of the Act would be considered; but no notice was given of specific violations alleged or to be relied upon. What happened was that on all the evidence it was found that certain violations, previously unspecified, had occurred. The examiners first specified these violations in their decision. The Board, I think incorrectly, then refused to reopen the record, taking the position that the hearing had been adequate.
If the proceedings are considered as having been focused on applications for new operating authority, petitioners urge that the basis for the adverse action is unwarranted since their existing licenses were cancelled because they were found unqualified for such new authority; and if the proceedings are considered as directed to revocation of existing authority, the revocation requirements of neither the Administrative Procedure Act nor of due process of law were met.
As to the Administrative Procedure Act, section 9(b) provides:
“Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, no withdrawal, suspension, revocation or annulment of any license shall be lawful unless, prior to the institution of agency proceedings therefor, facts or conduct which may warrant such action shall have been called to the attention of the licensee by the agency in writing and the licensee shall have been accorded op*229portunity to demonstrate or achieve compliance with all lawful requirements.”
The Board contends that since the violations were willful petitioners cannot complain of Board failure to comply with this provision. But the Board did not revoke on the theory of willful violations which would dispense with the need of affording opportunity to comply as specified in section 9 (b); the Board found willfulness only after the hearing had been held. In such a proceeding it seems to me the type of procedure required by section 9(b) for non-willful violations is necessary to support a revocation of a license. To revoke on the basis of violations, never previously specified, found on evidence of a general character taken in the course of the investigation, is inconsistent with the plain purport, if not the specific language, of section 9(b).3
And as to due process, I reach the same conclusion as with respect to section 9 (b); that is, the hearing should in any event have been reopened when requested after the specific violations set forth as a possible basis for revocation were first made known by the examiners’ decision.
The views above expressed I think are consistent with the decision of this court in Standard Airlines, Inc. v. Civil Aeronautics Board, 85 U.S.App.D.C. 29, 177 F.2d 18, and I think are not rendered untenable by Cook Cleland Catalina Airways, Inc. v. Civil Aeronautics Board, 90 U.S.App.D.C. 220, 195 F.2d 206, or Eastern Airlines, Inc. v. Civil Aeronautics Board, 87 U.S.App.D.C. 331, 185 F.2d 426, vacated as moot, 341 U.S. 901, 71 S.Ct. 613, 95 L.Ed. 1341. In Cook Cleland it was said no hearing was required by the Constitution as no existing business and no existing property was involved. What was said with respect to revocation of a license I think must be limited to the factual situation there before the court. In Eastern Airlines the question was simply whether a hearing was essential to the grant of an exemption under section 416.
I concur in the majority opinion insofar as it sets aside the order of the Board with respect to petitioner Air Cargo Express.
. This provision reads as follows:
“See. 2(e) License and Licensing. — -‘License’ includes the whole or part of any agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission. ‘Licensing’ includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdraw*228al, limitation amendment, modification or conditioning of a license.”
60 Stat. 238 (1946), 5 U.S.C.A. § 1001 (e).
. The Board also decided that the carriers it found qualified to continue the irregular typo of service should be certificated, a decision reversed by this court in United Air Lines, Inc. v. Civil Aeronautics Board, 108 U.S.App.D.C. 1, 278 F.2d 446. On October 24, 1960, the Supreme Court vacated our judgment in the following terms:
The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Court of Appeals with instructions to retain jurisdiction until such time as further legislation has been enacted or Public Law 86-661 [Act of July 14, 1960, 74 Stat. 527] has expired.
364 U.S. 297, 81 S.Ct. 267, 5 L.Ed.2d 89.
. The opinion of the majority refers to the language in the legislative history that section 9(b) was not intended to apply to “temporary licenses which may be issued pending the determination of applications for licenses” and states that these were unquestionably temporary licenses, pointing to the fact that since 1938 authority by way of exemptions and letters of registration was carefully conditioned by the Board. Such authority as was granted to these carriers, along with the length of time the authority was enjoyed, does not seem comparable to temporary licenses issued pending determination of applications for licenses, especially in light of the language of section 9(b) actually adopted by Congress.