W. R. Grace & Co. v. Civil Aeronautics Board

On Petitions for Rehearing.

PER CURIAM.

Pan American and Eastern have filed petitions for rehearing which we deny but which make desirable some additional comments.

1. The petitions complain that we have held that the Board may and should consider a “private dispute between stock*286holders” relating solely to the question “whether one stockholder has acted prejudicially to the corporate welfare.” That complaint overlooks this basic assumption of our opinion: As the Board itself recognized in the recitals of its order of September 10, 1942, the declared policy of Congress set forth in § 2 of the Act, 49 U.S.C.A. § 402, not only makes paramount the “public interest” but also explicitly includes as an important factor, vitally affecting the public interest, “competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense.” If, as that order of 'the Board indicates, the facts brought out at a hearing should show that the public interest required competition between Panagra and Pan American’s wholly owned subsidiary, and that Pan American was improperly using negative control of Panagra to interfere with such competition, then the Board might find it necessary to take steps, authorized toy that Act, to prevent such interference as prejudicial, not' to Panagra’s “corporate welfare,” but to the public interest. Of course nothing we have said is to be understood as precluding the Board from considering and deciding, in this or any other proceeding, whether Grace is violating § 408, 49 U.S.C.A. § 488. Nor are we intimating that, should the Board find that Grace is violating § 408 and that Pan American is also improperly using its stock interest in Panagra, the Board may not exercise its statutory powers to rectify the situation in any way it deems wise.1 It should go without saying that (although the record is already voluminous and seems to cover all these issues) the Board should give all parties the opportunity to offer additional, relevant evidence unless, the Board, in the exercise of sound discretion, rules that it is needlessly cumulative.

2. Pan American, in its rehearing petition, concedes that “the overall purpose of the statute is the advancement of the public interest by the promotion of civil air service.” .That purpose, permeating this case, both before the Board and in this court, serves to .dispose of the contention 1 that in our decision we have exceeded our powers of review. Grace, before the Board, objected to the dismissal of the proceeding for want of jurisdiction in the Board; in its petition for review, Grace prayed “for such other relief as to the court may seem just and proper in the circumstances.” With increasing emphasis, the Supreme Court has admonished us that, in court review of such administrative orders as this now before us, the public interest looms large.2 Accordingly, since this is not mere private''litigation, overly nice scrutiny of the pleadings and undue. stress on alleged estoppels3 have no place here.3a

*287Eastern argues that Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656, shows that we have illegitimately intruded on the Board’s discretion as to the order in which it chooses to consider matters pending before it. But the Supreme Court rejected that same suggestion in Ashbacker Radio Corp. v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, as the dissenting opinion in that case discloses. The unmistakable fact is that, of recent years, there has been a steady development in Supreme Court decisions of the doctrine that those seeking review of the orders of administrative agencies, under review provisions like § 1006 of this Act, 49 U.S.C.A. § 646, are primarily vindicating the public, not a private, interest.4 It is our duty to follow the lines laid down by that Court, and wc have done so here according to our lights.

3. It is urged that in our discussion of American Power & Light Co. v. Securities & Exchange Commission, 325 U.S. 385, 65 S.Ct. 1254, we neglected the fact that it turned on the extensive powers and duties of the S. E. C. under the Public Utility Holding Company Act which include protection of the interests of investors and therefore authorize administrative scrutiny of the relations between stockholders and their corporations. But that contention disregards the numerous provisions of the Civil Aeronautics Act directing and authorizing the Board, in safeguarding the public interest and in carrying out the declared policy of the Act, to investigate, supervise, and do the needful, with respect to the management and control of air carriers.5 In the light of those provisions, we reject Pan American’s argument that the Board lacks all “power to take the management of a corporation out of the hands of its directors.” It was with those provisions in mind that we said that exploration of the issues of alleged “fraud” or “illegality” in the management and control of Panagra demand the Board’s “specialized acquaintance with commercial aviation and its ramifications.” Pittsburg, etc., R. Co. v. United States, 281 U.S. 479. 50 S.Ct. 378, 74 L.Ed. 980, involved nothing like the public interest patently here involved; moreover, that case was decided before the recent doctrinal development above noted. We see nothing in Schenley Distillers Corp. v. United States, 66 S.Ct. 247, to induce a different conclusion.

4. Objection is made to the fact that in a footnote we referred to the Latin American Proceeding (Docket No. 525) because this is a matter not in the record before us. The Board in one of its briefs called our attention to the existence and nature of that proceeding. Whether, since it relates to subsequent happenings in the Board affecting the case here, we may not properly consider it is not entirely clear.6 But we did not, in any way, rest our decision thereon, using it merely to illustrate the obvious point that the Board’s lor.g delay in passing on Grace’s petition filed December 16, 1941, might, through intervening circumstances, render the Board impotent — should it later take up that petition and decide it in favor of Grace — to do that which would be in the public interest.

5. We were in error in saying in a note to our previous opinion that the Board had told us that in other cases it had treated consents, filed in § 401(h), 49 U.S. C.A. § 481(h) proceedings, as voluntary petitions for extensions under § 401(d). But we adhere to the view that a consent by a carrier to a 401 (h) extension proceeding begun by the Board is the legal equivalent of a petition for the same extension initiated by the carrier.

6. To avoid misunderstanding, we repeat that we are not prejudging any of the issues of fact. We have not examined the record as to the merits. That is the Board’s function.

Petitions for rehearing denied.

We do not have (as Eastern somewhat recklessly suggests) any “solicitude for Grace.”

F. C. C. v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037; Scripps-Howard Radio v. F. C. C., 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229; F. C. C. v. N. B. C., 319 U. S. 239, 247, 63 S.Ct. 1035, 87 L.Ed. 1374; Ashbacker Radio Corp. v. F. C. C., 326 U.S. 327, 66 S.Ct. 148.

In the Scripps-Howard Radio case, 316 U.S. at pages 14, 15, 62 S.Ct. at page 882, 86 L.Ed. 1229, the Court said: “But these private litigants have standing only as representatives of the public interest. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 642, 60 S.Ct. 693, 698, 84 L.Ed. 869, 1037. Compare National Licorice Co, v. N. L. R. B., 309 U.S. 350, 362, 363, 60 S.Ct. 569, 576, 84 L.Ed. 799. That a court is called upon to enforce public rights and not the interests of private property does not diminish its power to protect such rights. * * * Courts no less than administrative bodies are agencies of government. Both are instruments for realizing public purposes.”

See Associated Industries v. Ickes, 2 Cir., 134 F.2d 694, for discussion of the development of this doctrine; there (134 F.2d at page 704) we suggested that those who come within the class of persons who may seek review, under review provisions like that here, may be considered “private Attorney Generals.”

Grace, before the Board, objected to consideration in this proceeding of its petition No. 744 with respect to § 411, 49 U.S.C.A. § 491. We do not (as Eastern erroneously suggests) instruct the Board to consider § 411, although it may do so if it wishes and although it may be that, in considering Grace’s petition No. 707, it may be necessary to deal with much the same issues as would arise under § 411.

It is to be noted that Pan American before the Board referred to “Grace’s complaints in Dockets No. 707 and 744, which form the background of this proceeding.”

Cf. Mercoid Corp. v. Mid-Continent *287Co., 320 U.S. 661, 670, 64 S.Ct. 268, 88 L.Ed. 376.

See cases cited, supra, note 2.

See §§ 407, 408, 409, 411, 412, 413, 415, 49 U.S.C.A. §§ 487, 488, 489, 491, 492, 493, 495; cf. § 1(2), 49 U.S.C.A. § 401(2).

Cf. Public Utilities Commission v. United Fuel Gas Co., 317 U.S. 456, 466, 63 S.Ct. 369, 87 L.Ed. 396; Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 79 L.Ed. 1082.