(concurring).
I concur in Judge Hanson’s opinion, but desire to add a word on what to me has been, in the administrative significance thereof, the most bothersome question in the case.
Whatever may have been the circumstances under which the Commission’s purported decision of October 6, 1964, was issued and entered (the Commission makes no explanation in its nullifying or revocatory notice of October 22,1964), and regardless of whether this legally might have the status of a decision, I do not believe that it could in any event be contended to be one that was possessed of such administrative finality as to cause the situation to be no longer in the Commission’s control at the time the obliterating notice was given. Stated differently, it seems to me that the abandonment application was a matter as to which the power to take further action on the merits, if the Commission desired to do so, still remained in its hands.
On this basis, the Commission, by its obliterating notice, did not engage in. making reach at a situation as to which it had acted with such terminating absoluteness, either actually or ostensibly, as to have moved the immediate controversy out of its domain. If that had been the situation, I should have regarded it as necessary for the Commission, in order to effect administrative recapture of any aspect of the situation, both to give notice and to accord opportunity for hearing before it could take any revocatory step.
Only because I think the matter had never been permitted thus to move out of the Commission’s hands, do I feel that there could be no fundamental unfairness involved in its dealing with the merits of the situation, after its revocatory notice, upon the basis of the proceedings which had theretofore been had and in not according a further hearing upon what its final decision should be. Such a hearing would doubtless have served to better satisfy the parties, but I do not believe that it was in the circumstances required as a matter of due process.
I should add the explanation that my reason for regarding the Commission as *721still having power to deal with the situation on the merits after its purported decision of October 6,1964, is that under 49 CFR § 1.101 (a) (1), and (b), and (e), it had left the way open for a period of thirty days (which had not here expired) for a request to be made of it for a further hearing to introduce additional evidence. While § 1.101 (a) (2) provides in effect that any decision by a division of the Commission affirming a prior decision by a hearing officer “shall be considered administratively final”, this necessarily has to be read in relation to sub. (b) and sub. (e), supra. The Commission might not choose to grant such a request in a particular situation, but the power was there for it to so act.
Thus the matter here was one in which the Commission did not have to make any extraneous reach in relation to its revocatory notice and subsequent decision, and in which on the situation involved I believe it was entitled to take the action which it did on the proceedings theretofore had and without need to accord a further hearing.