CIVIL AERO. BD. v. DELTA AIR LINES

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Argument of John F. Davis

Chief Justice Earl Warren: Number 492, Civil Aeronautics Board, Petitioner, versus Delta Air Lines, Incorporated, and Number 493, Lake Central Airlines, Incorporated, Petitioner versus Delta Air Lines.

Mr. Davis.

Mr. John F. Davis: Mr. Chief Justice, if the Court please.

This case arises on petition for certiorari to the Court of Appeals for the Second Circuit.

That Court upheld and attacked by Delta Air Lines upon an order of the Civil Aeronautics Board which had ordered modifications in a certificate of public convenience and necessity which had been granted for some new routes.

A competing airline of -- of Delta, Lake Central, had intervened in the court proceeding to review the order.

And both Lake Central and the Civil Aeronautics Board filed petitions for certiorari to review what it claimed as an error, of course, involves.

Both petitions were granted and by stipulation, they have been consolidated for argument here.

I shall make the opening argument for the Civil Aeronautics Board, then the petitioner, Lake Central, will follow me.Delta will respond to both of us at one time and if there is time, and I think there will be, I shall rebut.

Now, the only issue here is whether the Civil Aeronautics Board, in order to preserve its jurisdiction to consider motions for reconsideration, must postpone the effectiveness of a certificate for public convenience and necessity or whether it may permit that certificate to become effective and then on completion of its consideration, make a modification of the effective certificate.

This is purely a matter of administrative procedure of statutory construction.

There's no question here of constitutionality.

There's no question here of evidences, merely a question as to whether or not the Civil Aeronautics Board has power to modify an effective certificate of convenience and -- and necessity when that certificate was granted during the pendency of motions for reconsideration.

Now, here, the dispute is between the -- the Delta Air Lines, which is a trunk carrier, and two local lines, the Piedmont and the petitioner, the Lake Central, both of which operated local services in the neighborhood of the -- of the Great Lakes.

This case is really a small segment of a large multi-party proceeding in which the commission the -- the Civil Aeronautics Board considered the necessities of additional routes to serve the area between the Great Lakes and Florida.

Delta had applied for and had been granted permission for a new route between Detroit and Miami, Florida.

And at the same time, it has been granted permission to serve several new intermediate routes on its existing route between Chicago and Miami.

These intermediate points which were added to its authority included Indianapolis and Louisville and Dayton among others.

Chief Justice Earl Warren: We'll recess now.

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Argument of John F. Davis

Mr. John F. Davis: If the Court please, when the Board granted to Delta the authority for the new through routes and the new intermediate points, the result was that Delta was given authority to inaugurate new local service between the intermediate points which were added and any other points on their exiting lines or routes or -- or connecting routes.

Thus, although the main ground was a new route from Detroit to -- to Miami, the result of the addition of these new intermediate points gave Delta a right to run local service between Chicago and Indianapolis and between Indianapolis and -- and Louisville.

And this brought it into conflict or at least potential conflict with the local services of Piedmont and Lake Central.

Now, this had been anticipated because this is -- what occurs when new routes are given.

And so, both Piedmont and Lake Central had participated -- had intervened and participated in the proceeding in order to introduce evidence as to their local traffic and -- and the effect of the grants upon it.

And when the order came down granting these routes without any restriction on local service, both Piedmont and Lake Central filed motions for reconsideration asking that the Board reconsider its order and imposed restrictions to protect their local services.

Justice Charles E. Whittaker: (Inaudible)

Mr. John F. Davis: No, the rules clearly give them a right to do so, Rule 302.37 of the rules provided.

There is no statutory authority for petitions for rehearing but the Board has assumed that it had power under its general rule making power and its regulations to provide for rehearing, and this was filed in time.

Justice Charles E. Whittaker: (Inaudible)

Mr. John F. Davis: There was no -- there is no issue but -- but these were timely petitions.

Now, these were not the only petitions for rehearing, this is a tremendous proceeding in the first place that were 10 air carriers that had made applications for some party to new routes and there were party cities that had -- cities or counties that had intervened and a number of the local carriers.

As a matter of fact, the record had taken 16,000 pages and there have been eight days of trial.

And after the decision came down, there were 16 separate petitions for reconsideration.

Everybody who haven't got what he wanted immediately file the petition with the Board for reconsideration and rehearing.

The initial order had provided that the certificates would become effective 60 days after the date of the order.

The petition for reconsideration came in within the first -- as of -- provided by the rules came in within the first 30 days of that 60 days, and then there were 10 days for replies.

This gave the Civil Aeronautics Board 20 days in which to act upon these petitions for stay or rehearing reconsideration.

With an insufficient time for them to pass finally on all these matters, but they did, two or three days before the effective date of the certifications, come down with an order, it appears at page 57 of the record, in which they passed upon the applications for stay because obviously, they had the pass upon the application for stay before the effective date or -- or deny them by not passing upon them.

So, on the 28th day of November, they came down with a -- brought a long opinion passing upon these motions and denying the stays as to all but one -- in one instance.

But they said specifically in this -- in this particular order, that they were -- they had examined the -- the motions for rehearing only sufficiently to determine whether or not there were sufficient error to justify staying the application of the certificates.

And they stated that it was important to get these services started in order to meet the winter season to Miami, and that therefore, they were not going to issue stays except, as I say in this one -- one particular.

But they went on and provided, and I now turn to page 79 and 80 of the record, they provided in this order that the Board would continue to consider these petitions for reconsideration and that nothing in the present order should foreclose them from full and complete considerations of pending petitions on their merits.

They particularly did not act upon the merits at that time.

There was no -- there was no objection to this type of order.

The certificates became effective.

Delta Air Lines started its service between Detroit and Miami, and it also instituted local service between Chicago and Indianapolis and local service between Indianapolis and Louisville.

And then, some five months after, the Board acted on the motions for consideration.

And it imposed restrictions on these local calls in order to protect the interest of the local carriers in its order provided that the original certificate should be amended so as to prevent -- what it considered unnecessary competition with these local carriers.

Justice John M. Harlan: Were there --

Mr. John F. Davis: They --

Justice John M. Harlan: -- where there further proceedings -- arguments before the Commission between the issuance of the denial of the stay order and the granting of reconsideration?

Mr. John F. Davis: There were no -- no, well, not in this particular.

There were some other, in other respects, there were also some other interim mode as modifying other certificates.

But as to this, there were no other proceedings.

There were -- there were the briefs, of course, the briefs in support of the petitions for modification and against --

Justice John M. Harlan: That original has been submitted.

Mr. John F. Davis: That's right.

But they didn't -- no one filed that, so far as I know and I think I'm right, no one filed any further briefs or made any further argument after the refusal of a stay.

Delta objected to these modifications both on their merits but particularly on the ground that the Board had no authority to modify a certificate of public convenience and necessity once it had been granted.

They asked rehearing on this and the Board denied it and they've been petitioned for review in the -- originally in the Court of Appeals in the District of Columbia, but it was transferred to the Second Circuit.

And there, the Second Circuit agreed with Delta that the Civil Aeronautics Board had no power to modify a certificate once it had become effective.

Now, on its face, it seems reasonable to assume that was -- Civil Aeronautics Board, like other administrative agencies, should be permitted to choose between granting a stay of one of its procedures or not when there's been a timely petition for reconsideration without losing its -- without losing its authority, its power to consider the -- the motion.

And in fact, the court below recognized the difficulties which its decision would impose on the Board, but it felt that the statute itself was so worded as to deny the Board this power.

And it found this denial in two Sections of the Act, Sections 401 (f) and 401 (g) of -- of the present Federal Aviation Act.

401 (f) is a section which provides that for the --

Justice Felix Frankfurter: Where is that in your brief?

Mr. John F. Davis: It's on page 2 of our brief, Mr. Justice.

Section 401 (f) is merely the Section which provides for the duration of certificates of convenience.

And it provides that certificates shall be effective from the date specified therein and shall continue until suspended or revoked as herein provided.

And Section 401 (g), which appears on page 3 of our brief, is a procedure under which the Board on notice an opportunity to be heard may suspend, modify or revoked certificates of convenience.

Justice Charles E. Whittaker: Where is the rule making power given to the Board?

Mr. John F. Davis: There is -- there is no specific in the statute.

There is no rule --

Justice Felix Frankfurter: There is none.

Mr. John F. Davis: -- the rule making -- excuse me, Your Honor.

Yes, there is rule making power, of course.

It's given in the Section 204 (a), it's not printed in our brief.

Justice Felix Frankfurter: Have you got any point of view?

Mr. John F. Davis: No, but on page 13 of our brief in Footnote 8, there is the except from this Section which says that the Board is entitled to perform such acts and make them in such general and special rules, regulations and procedures is necessary to carry out its provisions.

Justice Felix Frankfurter: That's what I want.

Mr. John F. Davis: And also Section -- these -- these Sections are excerpt on -- excerpted on page 15 in the footnote in our brief.

There is also a section of the Act which gives them authority in carrying on the hearings to conduct them in -- in appropriate way.

Justice Felix Frankfurter: Now, what strength did the Court get out of that?

Mr. John F. Davis: Out of the Board?

Justice Felix Frankfurter: No --

Mr. John F. Davis: The -- the --

Justice Felix Frankfurter: -- power.

Mr. John F. Davis: -- Delta -- the Court -- the Court felt that (f) said that these certificates should be perpetual until they were modified as provided by (g).

Justice Felix Frankfurter: What -- what specifically did get out -- out of 401 (f).

I mean what language bound --

Mr. John F. Davis: The language that they rely on is in -- it's in the second and third line, "Shall continue in effect and held suspended or revoked as herein provided.

Justice Felix Frankfurter: And this was either suspension or revocation, is that it?

Mr. John F. Davis: Well, they felt that -- we don't -- we don't argue this.

We -- they -- when it says "shall continue in effect," why, they argue that it shall continue in effect without modification.

Justice Felix Frankfurter: No matter what.

Mr. John F. Davis: That's right.

And then they --

Justice Felix Frankfurter: (Voice Overlap) I -- I want to stick close to the statute --

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: -- if I may for a time.

Mr. John F. Davis: Well, that is the --

Justice Felix Frankfurter: In other words, that's the language which -- to which they stick.

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: Alright.

Mr. John F. Davis: And then they turned to (g).

And (g) says that you -- in order to modify, suspend or revoke, you have to give notice and opportunity to be heard in special procedure.

So they don't deny that the Board could have modified this effective certificate, but they said they would have to start a new proceeding to do so.

They would have to give -- give them notice and opportunity to introduce evidence.

Justice Charles E. Whittaker: Well, this raises the question, for me, as to whether this is truly a modification.

Mr. John F. Davis: Yes, sir.

This -- this is an added -- it's an added restriction.

It's certainly the -- certainly in -- in essence, the certificate remains in effect and is -- is -- with -- with additional restrictions, and it -- it certainly is not revoked to suspend it but it may be that -- that they don't have the same rights under it and certainly, it don't have the same rights under it that they have to regulate.

Justice Charles E. Whittaker: When a judgment is at it and pursuant to law, a motion for new trial is timely filed, that implies, doesn't it, the right of the Court to act on the motion.

Mr. John F. Davis: That's right.

Justice Charles E. Whittaker: Now, then, there is no judgment, and there can only be one judgment in the case.

And if enacting on the motion, the Court revises the judgment he is to other, is that a modified judge -- judgment or is it the judgment?

Mr. John F. Davis: That will then be the judgment.

It won't be a modified judgment.

I -- I think an argument can be made in this case, Mr. Justice Whittaker, that what was done in this case was neither suspension nor revocation.

And it -- it doesn't -- it isn't covered by (f) at all.

I think our argument goes further however because when some of this motions for reconsideration that were pending did go to the heart of some of the -- of the rights to continue when the Board, in its assumed authority, would have felt that it could suspend the entire -- the entire authority.

It didn't -- it didn't act in the ground that this is a minor amendment, it acted on the ground that there was no final order, and that since it had made its -- under this circumstances, it would have power to -- to amend it.

Justice Felix Frankfurter: Mr. Davis, may I ask you one or two questions to get the facts straight.

At the time the issue is -- at the time of disposal rate, they (Inaudible) by the order with which it didn't.

They were then attending these other applications where they -- pending at the time.

But we --

Mr. John F. Davis: Pardon.

Well --

Justice Felix Frankfurter: You were --

Mr. John F. Davis: -- there were two things --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: -- there were two -- two things pending at that time.

One, there were existing authorities to Piedmont and Lake Central to do some of this local operation.

They had separated out of this -- out of this proceeding, and there had been commenced a new local service proceeding with applications by these -- by these companies for local -- for additional local service.

Justice Felix Frankfurter: After this long-haul order?

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: Now, could they, as to those, that were pending at the time for long-haul order was -- in -- under advisory or before the Board before its final order?

They could've brought in those applications, could they not, in the long-haul proceeding?

Mr. John F. Davis: Well, originally -- originally these local carriers had attempted to --

Justice Felix Frankfurter: Come in.

Mr. John F. Davis: Come in and make their proceedings part of this proceeding.

This -- this area of proceedings are almost impossibly complex anyway.

Justice Felix Frankfurter: Well, just as a fact, could the -- could the Commission have cleared them together?

Mr. John F. Davis: Yes.

It could.

Justice Felix Frankfurter: They were actually pending while it decided not to do that.

Mr. John F. Davis: It separated them and put them into a separate proceeding.

That is right.

Justice Felix Frankfurter: Do I stand the Second Circuit of the Court of Appeals would have found that the Commission was within its -- the Board was within its powers if they had given notice that they were going to have a hearing such as they had?

Mr. John F. Davis: Well, if -- yes they would found if they had been a special proceeding for modifications and revocation on notice.

There would've said they had power to do that.

Justice Felix Frankfurter: And they'll --

Mr. John F. Davis: I think --

Justice Felix Frankfurter: -- the Board is here that instead of giving notice that there were going to give a hearing, they give a notice to have a hearing.

Mr. John F. Davis: Well, I think --

Justice Felix Frankfurter: Is that it?

Mr. John F. Davis: -- I think there may be a little misunderstanding between us, Mr. Justice.

The -- the conflict between Piedmont and Lake Central and -- and Delta doesn't center only on the new applications of Delta and Piedmont.

I think for the purposes of this case we could -- we could almost ignore those because the -- they are a fact of two but the result would be the same with respect to the protection of the existing certificates of these two companies which were being affected by this.

And as to those, of course, there was no -- there was no pending hearing or argument.

Justice William J. Brennan: Mr. Davis, may I ask?

What -- what has been the congressional factor ordinarily, explicitly to authorize motions for reconsideration as to other regulatory basis?

Mr. John F. Davis: Well, I think that's true.

It's explicitly recognized in the -- when -- in connection with the Interstate Commerce Commission and -- and for all three of its Sections and it's explicitly recognized in connection with the -- with the Communications Commission.

I think most of the regulatory statutes do provide these specific regulations.

Justice Felix Frankfurter: Do you have any -- any light on why that was not from here?

Mr. John F. Davis: No, there isn't any indication of why it -- it -- I think that -- I think there is really no significance to it.

I think that -- well, it's generally assumed that the power to decide has -- gives you a power to -- if you'd made a mistake to -- and someone calls the attention to reconsider it and collect -- correct it.

And the courts have said that this is inherent in the rule making power without any specific authority.

I -- I have no reason -- no understanding of why they left it out of this particular statute.

Justice Felix Frankfurter: Does this statute --

Mr. John F. Davis: They left it out again.

They left it out originally in the -- in the 1938 Act, and they left it out -- what's more when -- when they reenacted the Act in1958 so no one apparently learn about it.

Justice William J. Brennan: This proceeding begins before it was --

Mr. John F. Davis: This proceeding --

Justice William J. Brennan: This precedes the 1958 provision, doesn't it?

Mr. John F. Davis: Well, it's both.

This Act -- this case begins with the 1938 Act, the -- the CIA and it was completed under the FAA.

The statutes are identical.

There's no -- there's no problem between the two.

Justice Felix Frankfurter: After this grant of Delta, as the case may be, suppose the -- the order is out, the effective date is still in the (Inaudible) the Board read in the light of day -- the next day what is has done, and a member of the Board says, "Well (Inaudible) I think we ought to reconsider this."

Now, as a result of this decision (Inaudible) the Board, what are the -- what are the -- what's the freedom of the Board to deal with that desire --

Mr. John F. Davis: Freedom --

Justice Felix Frankfurter: -- what does it have to do?

Mr. John F. Davis: -- the Board could -- could do this, it could, on its own motion, enter not a thing.

It was going to reconsider its -- its previous order, and it could, if it desired, extend the effective date for the certification of the route because the very -- the certification itself contains a provision that they could, if they desired, postpone the effectiveness of the -- of the certificate or it could, if we are right --

Justice Felix Frankfurter: Now, what -- I first stick to what the limitations imposed by the decision below.

Mr. John F. Davis: Well, what it could not do, under the limitations of the proceeding below, what it could not do would be to -- the second thing it could do would be to hurry up and get this thing done before the effective date.

But what it could not do would be to let the new order become effective and then modify it.

That's all it could do.

Justice Felix Frankfurter: And what you -- what you are arguing for is how it should be?

Mr. John F. Davis: That it should have -- that generally speaking, administrative bodies and courts have a power to stay or not to stay while they reconsider.

That in this case, the Board gave very serious considerations of the nature of the complaints and they felt that is was more important to get this service started immediately then to be absolutely sure whether there was anything that should be changed.

And they said, "You -- you want to go ahead, you can go ahead but we are still considering whether or not there should be some further modifications."

And we think they should have power to do that.

Justice Felix Frankfurter: But before they make the modifications, before they make -- forgive me, would the -- would there be a hearing on the terms of the modification?

Mr. John F. Davis: Well, no.

There wouldn't need to be in this case.

And -- and I think that's very important because I think that may be why the -- why the Court felt there should be a separate proceeding.

Here, we have record.

The -- this issue, the issue of the local -- protection of the local traffic was part of the main proceeding and evidence was introduced by both Lake Central and -- and Piedmont on this very issue and -- and could have been answered by --

Justice Felix Frankfurter: But the specific parties were before the Board.

Mr. John F. Davis: Both of them were before.

Yes, the specific parties were before the Board.

Justice Felix Frankfurter: But the other interested parties, were they all --

Mr. John F. Davis: Delta was -- oh, yes, Delta -- this was in connection with Delta's application.

Justice Felix Frankfurter: But those who are affected by what Delta got, are they before the Board?

Mr. John F. Davis: Yes, they were all before the Board.

Justice Felix Frankfurter: All the parties.

Mr. John F. Davis: All the parties were before the Board that are here now and more because Piedmont isn't here now.

So the evidence was here on this issue before the CAB.

Now, it wasn't pinpointed as to these particular localities because the routes hadn't been granted.

But as soon as the routes were granted, then Lake Central and Piedmont made their motion for reconsideration and call to the attention of all the parties their particular objection.

At that time, if the record wasn't sufficient if you didn't -- didn't have sufficient evidence, then the record could have been enlarged to put it in.

No one asked them to do that, everyone assumed the record was -- was complete.

Justice Felix Frankfurter: But they -- they could make the modifications without any new hearing on the materials before them.

Mr. John F. Davis: That is right.

Unless one of the parties said they needed more material and then there's no reason they couldn't.

Justice Felix Frankfurter: Well, how -- how were the parties know it if they'd issue a modification without notice?

Mr. John F. Davis: Well, the -- here, there was -- there was notice.

I mean the -- there was of -- of -- there was a motion for a modification, there was a reply to it saying, "Don't modify it."

And at this time, one could've -- I said, and we want to put in more evidence on this issue if you're -- if you're considering it.

But no one did, everyone was satisfied with the record.

Justice Felix Frankfurter: This is in comparison with the procedure of this Court.

Were this in a way like a -- a petition for rehearing on certain alleged inadequacies or errors in the -- in the course of a court's opinion and the court acts on it without having a separate hearing other than the notice for -- to its attention by that decision, is that it?

Mr. John F. Davis: That -- that is right, Your Honor.

If this Court feels that the particular issue hasn't been sufficiently explored, it can -- it can have reargument, it can send it back for new evidence if it feels its necessary.

Justice Felix Frankfurter: But you say it wasn't pinpointed.

Of course, that remarked my imply that the issues about which complaint is now made weren't consciously put before the Court --

Mr. John F. Davis: Well --

Justice Felix Frankfurter: -- before the Board.

Mr. John F. Davis: -- well, they -- I cannot say --

Justice Felix Frankfurter: That would make a difference.

Mr. John F. Davis: Well, I cannot say that at the time the evidence was introduced that there was specific evidence with respect to -- there are 10 -- 10,000 cities, 10 short routes.

I cannot say that there was evidence introduced on each one of those 10.

May be counsel for Lake Central --

Justice Felix Frankfurter: What I want to know is this --

Mr. John F. Davis: But --

Justice Felix Frankfurter: -- whether we are dealing with a formal matter or whether does this really involved a neglect of substantive interest.

Mr. John F. Davis: I think it's entirely a formal matter because if this record wasn't sufficient, there was plenty of opportunity for them to make it sufficient and plenty of notice as to what they were talking about through the motion for reconsideration which did pinpoint the particular area that they were attacking.

And there was no reason why either one of the parties shouldn't have -- move to reopen the record if they felt there wasn't sufficient evidence before the court -- the Board decide these things.

Justice Felix Frankfurter: But they had notice that the Board was considering these matters.

Mr. John F. Davis: That is right.

The Board -- the Board said, in its order, it said, "We are considering these matters and we will come down with the decision later on the merits."

Justice Felix Frankfurter: So why doesn't -- why doesn't it come within the difficulties that the court below found in (g)?

Mr. John F. Davis: You say why -- why isn't this in effect the proceeding under (g)?

Justice Felix Frankfurter: Well --

Mr. John F. Davis: Well -- it's --

Justice Felix Frankfurter: -- why aren't substantive claims, notice and hearings, if no hearing is necessary because of one --

Mr. John F. Davis: Yes, because it's already --

Justice Felix Frankfurter: (Voice Overlap) -- had then you -- you go to either motion.

Mr. John F. Davis: I -- I think this is the complete answer to the -- to what the court said below that they have received all of the protection they would have received through a new proceeding under (g), except that it can be done promptly and -- and they can't continue to have this operation during a -- during the time the new procedure would be, would be held which is something -- which presumably is not in the public interest if the Board is correct in its ultimate findings than in ours.

Counsel for Lake Central will continue.

And then if there's time left, I will save it for rebuttal.

Argument of Albert F. Grisard

Mr. Albert F. Grisard: May it please the Court.

I, of course, concur in what has been said by Mr. Davis on behalf of the Government.

And my remarks here would be rather briefs and more to do with the record in the case rather than the legal issues.

In the Delta brief, there are brief and references to what are termed opposed to decisional change of policies by the Board which, according to Delta, lead the Board to issue its order of May 9th, I believe it was, in 1960 which imposed these restrictions upon Delta's award for the benefit of Lake Central and Piedmont.

And before I get in to that I might say in response to the previous question of Mr. Davis that Lake Central introduced evidence to show that its traffic -- its existing traffic between Cincinnati and Indianapolis and between Indianapolis and Chicago would be subject to diversion by any award made to the trunklines in this Great Lakes-Southeast case.

And Lake Central urged both by testimony of its policy witness by its briefs to the examiner and to the Board and on oral argument to the Board that these restrictions which ultimately were placed upon these awards by the Board should be placed there for the protection of Lake Central.

The Board in its original decision placed restrictions upon Capital, which you will find at 44 of the record, upon TWA, which is shown at page 48 of the record and -- and upon United at pages 48 and 49 of the record for the protection of Lake Central's local services markets.

One of these restrictions, the one pertaining to TWA related to the Cincinnati-Indianapolis market which is one of the two involved here now.

Lake Central's petition for reconsideration, which is in the record pages 88 to 93, specifically called the -- these restrictions to the Board's attention and showed the Board that it's failure to some of the restrict Delta's authority on the other segments was clearly inadvertent admission.

The Board thereafter took its action, which is shown at page 81 of the record, and in the opinion of Lake Central this action by the Board in its order at opinion of May 7th was entirely consistent with its previous policy as evidence by its award of September 1958.

I wanted to say something about why Lake Central is interested in restricting Delta in the two markets which are involved here.

And first of all, I might say that the Board restricted Delta in a total of 10 markets, six of whom or six of which were for the protection of Piedmont and four of which for Lake Central.

Two of the Lake Central markets so protected were prospective markets.

And in a later decision issued in August of 1960, the Board denied Lake Central's applications for those two markets.

So we're not concern with the restrictions there.

The other two markets are Cincinnati-Chica -- Cincinnati-Indianapolis, Indianapolis-Chicago.

In 1958, before Delta inaugurated direct service between Chicago and Indianapolis, it carried a total of 143 passengers, both local and connecting passengers.

In 1959, after it had inaugurated a direct service which originated or terminated, in other words, at a point as nearby as Evansville, it carried a total of 6220 passengers.

You can see what difference the lifting of this restriction or the impositions of this restriction would make upon the traffic which Lake Central would have available to it.

In the Cincinnati-Indianapolis market, in 1958, Delta carried 26 passengers.In 1959, it carried 430.

I believe that Mr. Davis has touched briefly upon this question of the Board reserving the right to make modifications.

This was a subject of comment by Delta in its briefs at page 2, Footnote 3 and at pages 16 and 17.

It is Lake Central's contention that the language of the Board which was stated at pages 79 and 80 of the record, definitely put Delta on notice that the Board might, upon reconsideration, make some modifications in the certificate which it had granted Delta.

The Board's language is rather specifically filled.

It says, "Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits."

Justice John M. Harlan: Does the Board have power to issue provisional permits?

Mr. Albert F. Grisard: It has the power to issue a temporary certificate as it --

Justice John M. Harlan: (Inaudible)

Mr. Albert F. Grisard: Yes.

Justice John M. Harlan: (Inaudible)

Mr. Albert F. Grisard: Within the language of the Act, yes.

I have nothing further to add at this time.

Chief Justice Earl Warren: Very well.

Mr. Maurer.

Argument of R. S. Maurer

Mr. R. S. Maurer: Mr. Chief Justice, members of the Court.

In order to bring the few remarks that Delta would like to present to you in the proper focus, let me just restate this question once again because it is a fairly limited question of the proper construction of a specific statutory provision.

The question is simply whether after Civil Aeronautics Board, by affirmative action, has deliberately made a certificate of public convenience and necessity effective on a given day.

And let me just interrupt myself to say that Mr. Davis frequently used the word "grant" by the Board.

We are not debating anything about the Board's original order which issued the certificate.

We are talking about the specific day on which the certificate became effective in accordance with the statutory language.

The question presented is whether after that certificate has become effective in accordance with an ordered issued by the Board specifying the effective date.

Justice Felix Frankfurter: By -- by effective --

Mr. R. S. Maurer: Yes Your Honor.

Justice Felix Frankfurter: -- do you mean it has reached the terminal date of the order?

Mr. R. S. Maurer: It has reached the date on which the Board has said that Capital may be invested and service may be started.

In other words, the carrier now has legal authority to inaugurate service.

Once this --

Justice Potter Stewart: This is generally -- this is generally 60 days after the -- after the decision and was 60 days in this case, is that it?

Mr. R. S. Maurer: That is correct, Mr. Justice Stewart.

Justice Potter Stewart: But -- but you need not be.

There's nothing in the statute that requires it to be 60 days.

Mr. R. S. Maurer: That is correct.

It could be longer.

For example, in a now pending case, the Southern Transcontinental case, the Board allowed itself 90 days.

So that it would have rather a 30-day period for examination of these petitions for reconsideration --

Justice William J. Brennan: Now, Mr. Maurer, I think you --

Mr. R. S. Maurer: -- in 60 days.

Justice William J. Brennan: -- you took the position in your brief, did you not, that -- on filling a petition for reconsideration here, the Board might have extended that 60-day period to some longer period?

Mr. R. S. Maurer: Indeed so.

As a matter of fact, the Board has at least four or five different avenues which it can take to avoid during what it did in this case and putting a carrier such as Delta in a desperate position of having invested a great sums of money following the effective date only to have portions of the certificate authority removed some five months later.

For example, specifically responding to your question, Mr. Justice Brennan, one thing that the Board normally does is, Justice Stewart indicated, is to allow itself a 60-day period which gives 20 days for petitions for reconsideration to be filed, 10 days for answer and 30 days for action by the Board before the certificate becomes effective.

In complex cases such as the Southern Transcontinental case, I mentioned a moment ago, it allows itself 90 days so that there will be again 20 days for petitions for reconsideration, 10 days for answers but 60 days for action by the Board after all pleadings have been filed.

Justice Felix Frankfurter: Is there any -- is there any escape clause in the order -- in the order allowing -- specifically allowing for modification etcetera?

Mr. R. S. Maurer: Yes, sir.

Justice Felix Frankfurter: Well, where is that?

Mr. R. S. Maurer: May I add just two more points, Justice Frankfurter --

Justice Felix Frankfurter: Please do.

Mr. R. S. Maurer: -- as to what Board may do and then respond to your question?

Justice Felix Frankfurter: Please do.

Mr. R. S. Maurer: Frequently in the past, as the Board came up close to the effective date of a certificate and recognized that it had not had time to give the serious considerations of these petitions which it wished to do.

It then issued an order extending that effective date so that the certificate would not become effective in the rights vested.

Justice Felix Frankfurter: Could you do that sua sponte?

Mr. R. S. Maurer: Yes, sir.

It can do it on its own motion or it can do it in response to the petitions.

In this case, Lake Central had specifically -- specifically moved the Board to put that effective date in a stayed condition until a petition for reconsideration was acted upon, and by its order, the Board said, "No, we will not.

We will allow the certificate to become effective because we want the carriers to start the service."

Justice Felix Frankfurter: Well, may that have been, Mr. Maurer --

Mr. R. S. Maurer: Sir.

Justice Felix Frankfurter: -- the reason Mr. Davis suggested, namely, that they were anxious to have these orders effective because of the winter traffic to Miami?

Mr. R. S. Maurer: I indicated there were four ways that the Board could handle the situation and the fourth is responsive to what you have in mind, sir.

The fourth way in which they can handle this situation is that as they come up to the effective date of the certificate, if there are certain services which there is some strong public urgent need for or some reason of national defense, and they have finished their reconsideration there, but there are other areas where they do not feel that they have had sufficient time to complete reasonable reconsideration.

They can allow the portions or all of the certificates on which they have completed their action to become effective but stayed or remained, and they have done that repeatedly in the past.

Justice John M. Harlan: Did -- did you asked to have the or what position did Delta take on the extending the date of the certificate?

Mr. R. S. Maurer: We did not respond, as I recall, to the suggestion that the certificate date would be stayed.

We did respond on the merits arguing that these restrictions should not be imposed.

In other words, we responded on the merits rather than on the procedural --

Justice John M. Harlan: But my point is that you -- you were on notice, it seems to me, that whatever the risks were, your commencing operation, you were on notice that that was a possibility or a choice.

Mr. R. S. Maurer: That is the second part of my argument, and I'm sorry, I still haven't responded to Justice --

Justice John M. Harlan: Yes.

Mr. R. S. Maurer: -- Frankfurter's question, which has escaped me, I -- I beg your pardon for asking again.

Justice Felix Frankfurter: I was asking the escape clause and the --

Mr. R. S. Maurer: Yes, sir.

Let's see if I can find the opinion as written.

This type of clause you're speaking of normally comes in the certificate actually issued to the carrier.

Now, this certificate begins at page 54 of the record, and the language to which I would refer you is at page 56.

This is the certificate which was issued to Delta and which is in issue here.

And on page 56 in the third full paragraph, you will see this language, "This certificate, as amended, shall become effective on November 29, 1958 provided, however," and here is the crucial language that, "prior to the date on which this certificate, as amended, had otherwise become effective," the Board, "either on its own initiative or upon a timely filing of a petition or petition seeking reconsideration insofar as such order authorizes the issuance of this certificate, as amended, made by order or orders extends such effective date from time to time".

There in lies exactly the thing, which I indicated to Mr. Justice Brennan, the Board has utilized repeatedly over a period of some 13 years to extend the effective date if it found it necessary in order to do justice to the parties.

And the Board specifically did not exercise that power in this case.

Justice Felix Frankfurter: Where is the -- may I talk to you, Mr. Maurer?

Mr. R. S. Maurer: Certainly.

Justice Felix Frankfurter: Where is the order which is in -- in controversy?

Mr. R. S. Maurer: It -- it -- the order which attempted to take away the authority.

Justice Felix Frankfurter: Yes.

Mr. R. S. Maurer: It begins at page 81 of the record and the actual part of the order which takes away Delta's operating authority in a local basis in this 10 markets is on page 87.

Justice Felix Frankfurter: Now, was -- was there a hearing preceding this order or this then -- what's the -- what's the -- what does it have to do?

Mr. R. S. Maurer: We -- we take the position that the hearing required by statute was not granted.

Justice Felix Frankfurter: But was --

Mr. R. S. Maurer: What -- what happened was that under Section 401 (f) of the statute, which Mr. Davis read to you, the certificate became fully effective.

Now, Section 401 (f), and let's just look at that language for a moment, sir says, "Each certificate shall be effective from the dates specified therein and shall continue in effect until suspended or revoked as hereinafter provided."

Now, the hereinafter provided is only one of two ways.

One is under Section 1006 of the statute which provides for judicial review, that is clearly not involved here.

The second is under Sectio 401 (g), the very next section of the statute, which grants the Board authority to modify, suspend or revoke an effective certificate following a notice from hearing procedure.

Now, following the effective date of the certificate, there was no notice or hearing under Section 401 (g), and we are all in agreement on that.

Justice Felix Frankfurter: There was -- there was --

Mr. R. S. Maurer: The Board was purport -- pardon me sir, the Board was --

Justice Felix Frankfurter: What I understood is that there was some kind of notice given (Voice Overlap) --

Mr. R. S. Maurer: I thought that was quite --

Justice Felix Frankfurter: -- something (Voice Overlap) --

Mr. R. S. Maurer: -- I thought that was quite confusing myself.

What the reference there was, was back to the original hearing as a result of which the Board issued the certificate in September of 1958.

Now, in that original hearing, there is no question that Lake Central presented evidence as to why a restriction of this type should be imposed.

Delta responded to it, and the Board did not impose that sort of restriction.

And as a matter of fact, I'd like to emphasize a couple of points right there.

This was no inadvertent or clerical error.

I -- I got a feeling from my Brother Grisard's argument that he was now raging upon this Court that there was a -- an inadvertent error here which the Board was purporting to correct.

Well, I -- I take diametrically the opposite view point until today.

It -- it had never entered my mind that anyone contended in this case that there was fraud or misrepresentation or inadvertent or clerical error.

Justice Felix Frankfurter: Now, let me ask you this specific question, Mr. Maurer.

Was there no notice brought to Delta's attention?

I don't care what's the formality of the documents were.

Had Delta, not knowing after November 29th, 1958 and the 7th of May 1959, that the Board was considering doing what they did do in May 7th otherwise into (Inaudible) was there no -- was there no formal or appropriate official way by which notice came to you as their counsel, I must say, that there were contemplating during -- what they plan -- what they did on the 7th of May?

Mr. R. S. Maurer: Mr. Justice, I -- I'll try to answer your question.

I am not trying to avoid it by the way I start out.

It is our position --

Justice Felix Frankfurter: I'm putting a stupid question maybe.

Mr. R. S. Maurer: No, sir.

I -- I've got to impose the effective --

Justice Felix Frankfurter: Alright.

Mr. R. S. Maurer: -- date of the certificate in the middle of these things.

Under the petitions for reconsideration has filed and prior to the effective date of the certificate, I agree that the Board could have done what it did.

My position is purely and simply that once the certificate became effective in accordance with the statutory language by specific order of the Board, the Board had foreclosed itself from taking authority away from us on this -- all petitions for reconsideration.

But up until the effective date, the Board could do that, and it would have been perfectly proper --

Justice Felix Frankfurter: But there was no renewal -- may I ask -- may I --

Mr. R. S. Maurer: Sure.

Justice Felix Frankfurter: -- if I can get a specific answer.

I don't mean to say you're not giving it.

But was there no renewal of notice to you that the Board was re-canvassing matters that you say they could have canvassed to reside it against you before the order of November 29th.

Mr. R. S. Maurer: Two things, Your Honor.

Number one, after the effective date of the certificate, there was no further notice, and there's no question about that.

Number two, prior to the effective date of the certificate, our opponents argue that by this language, which the Board put in its order denying the stay of the effective date, it put us on notice that it might do something in the future.

My response to that is that the Board cannot, by putting in the dicta part of its decisional process, not even in the ordering part but in the dicta part, a statement that we're --

Justice Felix Frankfurter: At what part?

What do you call it?

Mr. R. S. Maurer: I -- dicta is a poor word.

In the introductory part --

Justice Felix Frankfurter: Isn't it (Voice Overlap) --

Mr. R. S. Maurer: -- in the introductory part, before it comes to the ordering clauses, a statement that maybe will violate the law sometime in the future.

Justice Felix Frankfurter: But did -- did they say --

Mr. R. S. Maurer: That -- that's not a notice.

Justice Felix Frankfurter: -- did they say, perhaps the document would show, did they say that we may, in the future (Inaudible) with this thing and hereby give notice that we will?

Mr. R. S. Maurer: Not if you want to focus on the Delta point as such.

But what they did say was this.

Justice Hugo L. Black: In what page is that?

Mr. R. S. Maurer: Sir, I've got to find it myself.

Justice John M. Harlan: Page 88.

Mr. R. S. Maurer: 58, I believe.

No.

Justice William J. Brennan: Page 80.

Justice Hugo L. Black: Page 80.

Justice William J. Brennan: Page 80?

Justice Felix Frankfurter: Page 80.

Mr. R. S. Maurer: Sir, we're at page 80.

We feel that such action as is necessary to a fair consideration of a stay request, and this 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.

Justice Felix Frankfurter: So, this can be for -- pending position effect you directly and exquisitely?

Mr. R. S. Maurer: Oh, yes, indeed.

The petition which has filed by Lake Central, asking for reconsideration, asked for the imposition of the restrictions which the Board subsequently tried to impose some six or seven months later.

Justice Felix Frankfurter: I understood you a minute ago to say there is nothing which directed special attention to Delta.

You mean the order to show stay?

Mr. R. S. Maurer: No.

This -- this was a catch-all phrase which applied -- oh, I see what the problem is.

This order doesn't deal just with the petitions for reconsideration affecting Delta.

There were -- I'm going to cite just 10 or 12 different applicants for major routes on this case, and I guess there were petitions for reconsideration filed against all the awards that were made.

There were three major routes awarded from the Great Lakes area to Florida, Northwest from Chicago to Florida, Delta from Detroit to Florida and Capital from the Buffalo Pittsburgh area to Florida.

All of these were subject to petitions for reconsideration.

And here, the Board was applying this overall language to all of the petitions for reconsideration because it hadn't dealt with any of them.

Justice William J. Brennan: But Mr. Maurer, this -- this is a -- I think you told us earlier that before the original certificate was issued, Lake Central had sought restrictions, evidence had been taken in respect to that request and the original certificate issued denied that request.

Mr. R. S. Maurer: That is correct.

Justice William J. Brennan: Then there was a petition for reconsideration.

I would suppose you understood that to be a reconsideration of the denial of those restrictions based on that evidence.

Mr. R. S. Maurer: Yes, indeed.

Justice William J. Brennan: Is that it?

Mr. R. S. Maurer: Yes, indeed.

Justice William J. Brennan: And -- so at that juncture, at least you knew that what Lake Central was looking for was reconsideration of denial and restrictions, at the end, have actually having the -- the restrictions imposed.

Mr. R. S. Maurer: Yes, indeed, and we responded to it in an answer.

Justice William J. Brennan: Yes, and then came this order which told you, "Well, we'll deny the stay, but you understand that the denial does not mean we've yet decided whether those restrictions will be imposed."

Mr. R. S. Maurer: Well, my -- my response to that, and I perhaps ought to give the Court the benefit of a little more background than it had in the way the Board has treated these particular sections of the statute.

My answer to that is that for something in excess of 13 years, I think longer, the Board has consistently treated this statute, in my opinion, in the manner for which I argue.

And it has recognized both in its own decisions and in its pleadings before courts, that once the effective date of the certificate was passed, it could not take away rights granted under that effective certificate.

Justice Charles E. Whittaker: Did you say take away the rights --

Mr. R. S. Maurer: Yes, sir.

Justice Charles E. Whittaker: -- that are granted?

Is not the judgement always subject, Mr. Maurer, to such action as the Commission may properly take on the motion for rehearing?

Mr. R. S. Maurer: Yes, but -- yes, but this is not the same situation as the power of a court.

If you pose it in terms of a court in its judgment, I must respond yes to what you say.

What we are dealing here was statutory language.

Now, let me point out as -- as Mr. Davis was very frank to admit, that this is a unique statute in that the Civil Aeronautics Act is passed in 1938 and the Federal Aviation Act is passed in 1958, and for purposes of this case, the statutory language is identical.

There was no change that affects this problem.

It contained no provision for reconsideration or for rehearing.

Now, this is quite contrary to the usual administrative agency statute.

For example, the Interstate Commerce Act has a statutory procedure for reconsideration and rehearing.

The Motor -- the Water -- Water Carrier Act and the Motor Carrier Act both have such specific statutory provisions for reconsideration and rehearing.

The Civil Aeronautics Act is silent.

Now, we agree that the Board has it -- within its power to establish by regulation, rules permitting reconsideration and rehearing.

But our contention is that those rules must not contravene specific statutory provisions which Congress did put in that statute.

And from the original statute in 1938, the language was in there that once the certificate effective date has been reached, it can be modified only as hereinafter provided.

Justice Charles E. Whittaker: Now, you are using the word "modified".

Let me ask you this.

Is it your position that once the 60 days has elapsed and the certificate is therefore out, that the Commission in (Inaudible) lost the power to rule on the motion?

Mr. R. S. Maurer: In the -- to -- to the full extent of taking away any authority that became --

Justice Charles E. Whittaker: Well, now, then -- it -- then that means that it had no power to rule on the motion because motions are idle if it can't sustain it, isn't it?

Mr. R. S. Maurer: No.

Well, I misunderstood your question then.

My position is that it has full power to deal with its original order and change it to add to it or to take away from it up to the date of effective -- effectiveness of the certificate.

Justice Charles E. Whittaker: So then your answer to my -- to my question is yes, that the Board loses jurisdiction to pass on the motions the very day that the certificate issues.

Mr. R. S. Maurer: In the sense of taking away anything, yes, sir.

Justice Charles E. Whittaker: Oh, well, now, I'm not taking away if it had -- if it has the right to rule on the motion, it's got a right to do with anything, doesn't it?

Go -- go in the motion, it's got a right to sustain the motion, if it's got a right to entertain, doesn't it?

Mr. R. S. Maurer: I -- I think that I probably should say yes to your question, but your leading me into an avenue that I have not explored.

My exploration has been directed to the Board's power to take operating rights away from my client.

And so, I say without qualification, I agree with you that it loses its power to take anything away when the certificate becomes effective.

I -- I don't hesitate on that at all.

Justice Hugo L. Black: Are you saying that -- I -- I don't quite understand.

Mr. R. S. Maurer: Sir.

Justice Hugo L. Black: Are you saying in effect the Board has given power to grant certificates that when granted they must be final, that they cannot retain by anything said with reference to keeping an indefinite hold on it, that anytime in the future we want to, we can grant a reconsideration?

Mr. R. S. Maurer: No.

No, Your Honor, I am not.

Justice Hugo L. Black: But what is the argument?

I don't quite get it.

Mr. R. S. Maurer: I'm sorry that I've been confusing.

When the Board issues a decision in one of this new route proceedings and grants new operating authority, it does not make the certificate.

The -- the certificate of public convenience and necessity effective on the very same day its opinion comes up.

Justice Hugo L. Black: That's right.

Mr. R. S. Maurer: It always sets that effective date out in the future, so that it will have time to reconsider that order if some legal or economic error is presented to it.

I -- what I am saying is that when that effective date set by the Board under the language of the statute is reached in past, then it cannot deal with that certificate --

Justice Hugo L. Black: You're saying in --

Mr. R. S. Maurer: -- except under --

Justice Hugo L. Black: -- you're saying in effect, are you not --

Mr. R. S. Maurer: Sorry.

Justice Hugo L. Black: -- it cannot retain power by saying that anytime in the future, we will do what we placed to the certificate.

Mr. R. S. Maurer: That is correct, Your Honor.

But I also would say that if -- when you come up to the effective date, the Board still feels we have a difficult question here and we're not ready to allow this certificate to become effective by simply issuing an order staying that effective date, it retained 100% control of the situation and may deal with it at its own discretion and at its own timing.

Justice Felix Frankfurter: Are you saying -- are you saying you're more explicitly that up to the effective date, it has full control, that after the effective date, the changes -- it may make changes, it has control but the control must be exercised under (g)?

Mr. R. S. Maurer: Yes, sir, that is correct.

I say that after the effective date, the Board may -- if it makes a finding of public convenience and necessity may modify or suspend that certificate under 401 (g) following notice and hearing.

401 (g) also contains certain different test dealing with revocation.

And I say after the effective date, if the Board makes the findings required by 401 (g), it may revoke completely.

But I say that once the effective date has passed and the carrier has gone out and expended money if the Board's urging and started up this services, then it must be deal with that certificate under --

Justice John M. Harlan: If the --

Mr. R. S. Maurer: -- 401 (g).

Justice John M. Harlan: -- if paragraph (1) instead of (Inaudible) does, it said the view of the considerations cited above --

Mr. R. S. Maurer: Yes, sir.

Justice John M. Harlan: -- they'll issue a temporary certificate, does the Board had power to do that?

Mr. R. S. Maurer: Yes, sir, the application is filed --

Justice John M. Harlan: But why isn't this inception just that?

Mr. R. S. Maurer: Well, simply because the Board didn't choose to do it the right way, Your Honor.

Justice John M. Harlan: (Voice Overlap) -- a matter of words that --

Mr. R. S. Maurer: Well, the -- there may be a matter of words but it involves millions of dollars to the carrier that actually have reliance.

Justice Hugo L. Black: But you could have declined to take this temporary certificate if they just (Inaudible) that route by the (Voice Overlap) --

Mr. R. S. Maurer: Well, I'll be perfectly frankly in the view of my best of my knowledge.

The Board has never utilized that route.

What it has always done when it wish more time was to extend the effective date --

Justice John M. Harlan: Well, I --

Mr. R. S. Maurer: -- or issue a partial stay and allow to become effective to those parts of the certificate which it wanted (Voice Overlap) --

Justice John M. Harlan: But the Board's position here was that because of peculiarities of this situation, there was a public interest in having this service initiated immediately.

Mr. R. S. Maurer: Yes, sir.

Justice John M. Harlan: And they took that into consideration and -- in deciding upon this procedure and that was open to you, was it not, if you didn't care for that to say no, we don't wish to take the hazard of --

Mr. R. S. Maurer: Well, let -- let me do what I said I would just a moment ago, and I hope this is responsive.

The Board has never approached this thing in this way.

It has never used the temporary certificate as a device to solve this problem.

But it does have a long and extended history of how it has handled it in the past which is consistent with what I am arguing for.

Now, let me just point this out.

This thing all began back in 1948 when the Civil Aeronautics Board had a very similar case to the one presented here.

It had put out a certificate authorizing new service to be operated between Kansas City and Memphis.

A certificate had become fully effective.

Service was about to be inaugurated.

Just after the certificate had become effective by a few days, the Board issued an order in which it indicated that it was going to consider taking that certificate away or modifying or either withdrawing it, giving it to somebody else or modifying what had been granted.

The Board's power to do this was very seriously contested in that case.

We refer, at page 29 of our brief to the Court, to this case where the Board didn't rule squarely on the problem because it reaffirmed the original certificate and therefore mooted the legal issue.

But as you'll see in the quotation at the -- just above the footnote on page 29, the Board said, "We have grave out however as to our possession of such power."

And then turning over to the top of the next page, in view of this doubt, the Board made this policy announcement, "In future cases of this kind, except for national security or other urgent considerations dictate otherwise, we shall pursue a policy of making the certificate effective on such date, as we'll permit reconsideration without creating the legal problem raised in the present case."

Justice John M. Harlan: Doesn't that -- this present situation come within the reservation of other urgent situation?

Mr. R. S. Maurer: I will try to deal that -- with that in a minute, sir, and I'm not -- I would just like to add one or two more points just to show you how they have consistently applied this same approach.

Now, they have always, with the exception of this case, and one other which was not contested, they have always set that effective date far enough out in the future, so that they could deal with these petitions for reconsiderations before the certificate became effective and the carrier got out on a limb.

Now, it's not only that the Board has consistently followed this practice itself, it is so represented to the federal courts.

For example, in the case known as the Southwest Airways versus the Civil Aeronautics Board, which we referred to on page 31 of our brief, in briefing the case to the Ninth Circuit, the Board said this, "These clauses were providing for a future effective date for the certificate were inserted therein for the stated purpose of giving the parties to the proceeding an opportunity to file petitions for reconsideration of the Board a supplemental decision and to ensure time for the Board to act their own prior to the effective date of the certificate."

Continuing, "The language therein requiring that a certificate shall continue in effect until suspended or revoked as hereinafter provided comes into play only from the date specified for effectiveness in the certificate."

And the Ninth Circuit relied very heavily on this representation.

And in the next quotation on page 32, we see what the Ninth Circuit said, skipping the introductory language, "The Board points to its administrative practice of postponing certificates of this character, so that time may be allowed for petition for reconsideration of apparent orders."

The Circuit then referred to the Board's Kansas City-Memphis case and continued to say, "The Board certainly has the power to reconsider its orders and set them aside and if certificate's not yet effective or dependent on those orders, they will be extinguished."

The situation is totally different from that in which a certificate has become effective.

Now, not only in its administrative practice, not only in its representations to the federal courts, but also on its own rules or practice, the Board has focused directly on this point.

Let me point out to you, if I may, in Delta's brief to this Court, the very last page of the brief appendix -- page 3 of the appendix.

The Board's rule of practice dealing with filing petitions for reconsideration.

The second full sentence says, "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 other words, in its own rule of practice, the Board recognized that this petition for reconsideration doesn't stay the effective date of that certificate going out, unless it takes affirmative action.

Now, one other point on this same subject, there was a footnote in the Government's brief which referred to an amendment of these rules governing reconsideration and the footnote said the rule was amended on February 14, 1959 in respects not here relevant.

Well, I would respectfully submit that that amendment in February of 1959 is extremely irrelevant, and I would like to call your attention to just what the Board did in that case.

On page 31 of our brief, we call the Court's attention to what the Board said when it amended the rules.

Now, let me tell you first before I refer to the language, what the amendment was.

As we have said before, customarily, the Board allowed itself about 30 days to act on these petitions for reconsideration.

It used to be that they allowed 30 days for filing of the petition and 10 days for answer and that cut into their normal 60-day.

So in February of 1959, they amended this rule so as to require petitions to be filled in 20 days, answers in 10 and this increased their time for action from 20 days to 30.

And they said this -- gave this as their reason for taking this action giving themselves longer time.It is the Board's normal practice in route proceedings to make certificate awards effective 60 days after issuance of the final opinion and order.

Thus, under present filing procedures, they are normally remains only a 20-day period between the completion of filings in the date upon which the certificate becomes effective.

It has become increasingly evident, particularly with the growing size and complexity of the Board's route proceedings that a period of 20 days is wholly inadequate and imposes an undo burden upon the Board and its staff when some action by the Board is necessary or desirable before new or amended certificates take effect.

So I say, gentlemen, that we have a consistent administrative interpretation of this statute recognizing the point for which I contempt.

That in the face of this administrative interpretation, the statue has been -- been reenacted with identical language by the Congress.

And I think we have plenty of good case brought to the effect that this constitutes absence some peculiar circumstances endorsement of the administrative interpretation.

We have the Board's rules of practice which are recognized since they were originally passed back in the late 1930s, that they had to take some actions staying the effective date of the certificate if they wanted to have effective control of petitions for reconsideration after the effective date originally set forth for the order.

They have told the Federal Circuit Courts of Appeal that this is what they do and the Court has blessed that interpretation.

So, what the Second Circuit below is doing was not bringing in some novel interpretation which flies in the face of the Board's established practices.

But as said, gentlemen, you have a way of dealing with this situation which gives you complete and continuing control.

But don't let that certificate become effective if you want to keep control, because when it becomes effective, you authorize the airline to go out and spend literally, gentlemen, millions of dollars in equipping itself in inaugurating service.

And we are not going to let you sit on petitions for reconsideration for five or six months after the certificate becomes effective, and you can encourage the inauguration of service and then say that you reserve some power to take it away.

Justice John M. Harlan: But what is the practical difference between what was done here and what your situation would have been if in issuing a certificate, the same day they'd issued a new notice saying that we will now proceed to consider -- reconsider this matter on the original record and served you with the notice under 401 (f).

Mr. R. S. Maurer: Under 401 (g) and then --

Justice John M. Harlan: 401 (g).

I beg your pardon.

Mr. R. S. Maurer: (Voice Overlap) notice -- notice from hearing --

Justice Hugo L. Black: I beg your pardon.

Mr. R. S. Maurer: -- the procedure.

The only difference would have been that we would have been able to come in and make a further factual showing.

Justice John M. Harlan: Oh, will you prevent it from doing that under this?

Mr. R. S. Maurer: We were not prevented because that act -- that procedure was never followed.You see, there -- we -- we all agree that there was never any action take another 401 (g) here.

Justice John M. Harlan: Yes.

Mr. R. S. Maurer: So, we never got into the 401 (g) procedure in anyway.

But I don't know.

Justice Felix Frankfurter: Can you say -- are you saying or implying that under the procedure that you're allowed into silence or none act -- none intervention, non -- non-action?

Mr. R. S. Maurer: No, I'd say it a different way.

I would say that in the face of the Board's established procedures of more than a decade, in the face of its administrative interpretation, in the face of the re-enactment of the statute, in the light of that administrative interpretation, in the face of the Board's representations to the federal court as to how it interpreted this clause, in face of the Circuit Court's approval of that interpretation, we had every right to believe that when the effective date came, we had a certificate, and we could invest our money.

Justice Felix Frankfurter: What --

Mr. R. S. Maurer: Now, may -- excuse me, sir.

Justice Felix Frankfurter: I beg your pardon.

I'll go straight on this.

Mr. R. S. Maurer: I want to make -- you know, sometimes when you argue concerning just one or two pairs of points, when we think about air transportation all over this country, it sounds de minimus, and we wonder why are we taking up the time of this or that body with problem involving restriction on two or three little pairs of points, up in the Great Lakes area.

Well, now, let me just point out to you the ultimate logic of the Government's position in this case.

As I told you before, the petitions for reconsideration which were filed involved not just these 10 pairs of points here at issue, but they involved attempts to over throw all of the Great Lakes area-Florida routes, which had been certificated by that same original order.

In other words, attempts were made to take away Northwest authority from Chicago to Florida and Delta's from Detroit to Florida, and Capital's from Pittsburgh to Florida.

That the order came out in September, petitions for reconsideration were filed 30 days later.

Specific request for stay of all of these major important routes were filed with the Board, and the Board came out with this opinion and said, "We have looked it over, we find no probable error, we haven't had time yet to get the opinion out, but we are not going to stay these things, and what's more, we urge you to get started."

Now, sir, let me just ask you to consider yourself in the position of airline management based with language of this type.

I'm reading now from pages 58 to 59 of the record, which is this order that the Board put out in -- in the latter part of November.

Because of the detailed matter as raised in the petitions for reconsideration, it will not be possible to finally dispose of them until after November 29th, the effective date.

Accordingly, we are acting on the request for stay in this opinion in order, an order disposing of the petitions for reconsideration in full will be issued on a later date.

In assessing the request for stay, we have, of course, given consideration of the petitions for reconsideration to determine the likelihood of error in our original decision.

After reviewing the matters raised in such petitions, we conclude that except a specifically noted hereinafter with respect to Eastern certificate, the parties have not made a sufficient showing of probable legal error or abuse of discretion in our decision so as to warrant for the stay be granted.

Moreover, in this proceeding, we have found that new services to Florida are immediately required by the public convenience and necessity during the 1958-1959 season.

We are of the opinion that these services should be put into operation at the advent of peak winter season in order to give the travelling public the full advantage thereof.

Now, Northwest, Delta, Capital took this at its face value, relying on how the Board had treated effective date in the past.

We went out and we got the equipment and the personnel, and we set-up the stations not just to serve these 10 pairs of points in the Great Lakes area, but to set up these extended routes with multi-million dollar equipment running from the Great Lakes area to Florida.

Now, my point, gentlemen, is this, the same order which denied the petitions for reconsideration with respect to those major routes involving millions of dollars of equipment was the same order which took this operating authority in these 10 markets away from Delta.

Now, the practical effect of adopting the Government's position is to say that despite this long administrative and judicial background, despite the Boards having denied stay of the effective date, despite the Board having said, "Get out there and get the service in operation because we've got to have it for these people this winter," that five or six months later, in the same order which took away our authorization in these 10 pairs, they could have said, "We're going to act on those petitions for reconsideration despite the effective date of the certificate.

And we're going to withdraw all of three of those Florida authorizations," and then, where would we have been?

Justice John M. Harlan: Well, my --

Mr. R. S. Maurer: That is -- pardon me, sir.

Justice John M. Harlan: I -- I didn't mean to interrupt you.

Mr. R. S. Maurer: Well, I'm -- I'm (Voice Overlap) --

Justice John M. Harlan: My difficulty is, I'll be quite frankly with you, my difficulty is it seems to me that the Board was, as you say, doing something that was a departure of its own practice, but your eyes were open to it.

And it seems to me that you were put on notice that whatever risk there were, standing on your legal position that you do now or risk that you -- soon.

Mr. R. S. Maurer: Well --

Justice John M. Harlan: Could you review this order at the time, supposing you were reluctant about it, could you petition for review --

Mr. R. S. Maurer: I don't think so.

Justice John M. Harlan: -- on the ground that the Board had no power to issue such a fuzzy order?

Mr. R. S. Maurer: No.

No.[Laughs]

I thought it was quite concrete at the time.

You see, what they said was, "We recognize, you say that you want to stay these certificates."

But Lake Central and the Eastern Airlines and all the others who were opposing the -- this awards becoming final, we're not going to state the effective date, we want this service to start.

But they did say "Oh, but look here, it looks to us as though we shouldn't allow this Eastern certificate to become effective because if we do, maybe we won't be able to change this thing that we think, maybe we ought to take a second look at there."

So they stayed the Eastern certificate.

It wasn't just a question of putting on notice, it was a question of following the statutory language which says that certificate, once it becomes effective, can only be modified as provided in 401 (g).

And in Eastern's case, they thought they recognize something they'd better deal with.

So they put that stay on there and they kept Eastern from investing any money.

But they've turned around and said, "We won't stay the effective day of yours, go on and start the service and do it --

Justice Felix Frankfurter: But you -- but --

Mr. R. S. Maurer: -- as promptly as possible."

Justice Felix Frankfurter: -- (Voice Overlap) Mr. Maurer --

Mr. R. S. Maurer: Yes, sir.

Justice Felix Frankfurter: I couldn't possibly put myself in the shoes of the management of Delta, but that's if not too arrogant of me to put myself in the shoes of their counsel.

Mr. R. S. Maurer: Yes, sir.

Justice Felix Frankfurter: And when you read that last paragraph, nothing in the present order forecloses the Board in full and complete consideration of the pending petition for reconsideration on their merit to a lot of lawyers who reflected on this and said, "Well, this -- what kind of a string is this?"

It may not be -- you've made a forecast whether the string was tough or -- or thin or etcetera.

Mr. R. S. Maurer: Well, Your Honor, I'll be perfectly frank with you.

I -- I read that language in the light of what I understood the law to be and what the Board -- as the Board had applied the law over a long period of years.

And as the federal court said, "Approve the Board's interpretation."

And I said --

Justice Felix Frankfurter: And there's -- that -- no -- no significant at all.

Mr. R. S. Maurer: I said to myself, whatever that means, that doesn't mean that they can take anything away from us after the certificate effective date because Congress said they couldn't.

Justice Felix Frankfurter: Except under (g).

Except by way of (Voice Overlap) --

Mr. R. S. Maurer: Yes, sir.

Certainly under (g), they always (Inaudible).

Justice Felix Frankfurter: (Inaudible) me.

Mr. R. S. Maurer: That -- that's really the -- the heart of my whole argument is that when the Congress has set up a specific statutory method for dealing with this situation, how could we possibly let the Board, under a -- a rule of practice which runs headlong into the statute, upset the congressional intent?

Now, I've imposed unduly on your time, I think, gentlemen, and I -- I haven't mentioned one thing that I would just refer to rather than argue.

And that is this, there is also a -- an extended line of judicial precedent in other fields, in the surface carrier fields specifically where this Court, in such landmark cases, the Seatrain, for example, has said to the Interstate Commerce Commission, "You know, there's a right way and a wrong way of doing things, gentlemen.

And don't argue public policy to us if you don't like the way the statute let's you do it.

If the statute sets up a procedure for you which you don't think you can live with, go to the Congress, don't come to this Court."

But on the other hand, as long as you are going to operate under that statute without amendment, you apply it the way it's written down.

And in the Seatrain case, you told them that they couldn't come back after the effective date, after the certificate was in operation, unless they followed the specific statutory provisions of the Interstate Commerce Act with respect to notice and hearing.

Chief Justice Earl Warren: (Voice Overlap) --

Justice Felix Frankfurter: The upset is that -- the upset is that this paragraph was entitled to (Inaudible) in the petitioners for rehearing but not to a rather (Inaudible)

Mr. R. S. Maurer: Your Honor, I hate to endorse that sentiment but as a lawyer that would be my reaction to it.

I don't think --

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: Mr. Maurer, at -- on this petition for reconsideration, is it open to you to present the same kind of evidence that you could present under (g)?

Mr. R. S. Maurer: No, sir, the only thing that could be done on a petition for reconsideration procedure is to argue the evidence already in the record.

Chief Justice Earl Warren: Yes.

Mr. R. S. Maurer: And unless you could make this showing to the Board that the record should be reopened because it radically changed circumstances, we could not present any additional evidence.

Chief Justice Earl Warren: Thank you.

Mr. Davis.

Rebuttal of John F. Davis

Mr. John F. Davis: Mr. Chief Justice, if the Court please.

In response to a question about whether all of the administrative agencies -- whether administrative agencies generally were given power for -- to rehear.

The Solicitor General has called my attention that there is no specific power for rehearing in the statutes dealing with the National Labor Relations Board and probably not with respect to the Federal Trade Commission.

And as I recollected, there is no such provision neither with respect to Securities and Exchange Commission.

So, I would -- I would "hazardly" guessed that there was a period in the early 1930s when there was a series of this -- some of these statutes, because Federal Trade Commission goes earlier than that when they didn't make any provision for rehearing.

On the other hand, with respect to the Federal Power Commission, there's not only a provision a rehearing, but there is a requirement that they petitioned for rehearing because they could seek judicial review so that not only do they authorized the requirement.

Mr. Maurer pointed out that one circumstance under which effective certificates would be modified would be in a situation where there was a -- application for review to a court, and a court in reviewing the order found that it was defective in some way and ordered a change.

This points up the -- the difficulty in this case.

Let us assume that Lake Central and Piedmont came to the -- to the Civil Aeronautics Board and convinced them that their order was wrong after -- after it become effective.

Does this mean that they would have to say, "We're sorry, we can do nothing about it, you have to go to court to get an order for us to do something about it, but if you do go to a court and get an order, then we can do it."

In other words, what Mr. Maurer is saying that the Board cannot do it voluntarily, but it can do it by -- when -- when it's been litigated and ordered to do so and this -- this just doesn't make any sense.

Justice Felix Frankfurter: Well, I don't quite follow that.

Is it not -- I -- I think, if it's -- if -- surely, if it's litigated, then you got an adversary proceeding and you got a right to put in new evidence.

Mr. John F. Davis: You can -- yes -- well, no, not well it'd be.

In order to review the order of the -- of the CAB, what I am saying is that it -- in this case that Lake Central can't come to the CAB and said to CAB, "You made a mistake, you should have put this in."

And CAB said, "Yes, we did make a mistake.

It's wrong and we should put it in to protect you, but we can't do it without an order."

Then it -- they went in the court, and said, "Legally, CAB couldn't do this.

CAB would have to say yes, we couldn't.

We did -- we made a mistake," then there would be an order and then they would be able to do it.

In other words, they would go through -- they wouldn't contest the matter in -- in court.

They would just be requiring a court order to do something they couldn't do voluntarily.

Justice Felix Frankfurter: Well --

Mr. John F. Davis: It's not -- it's not impossible but --

Justice Felix Frankfurter: -- you some -- you sometimes require -- you sometimes require decisions to find out what your powers are.

Mr. John F. Davis: But in this case, it's not -- it wouldn't been contested.

In this case, they would say "Yes, you are right, we should have put this restriction in.

Legally, under the evidence, we should have done it."

Justice Felix Frankfurter: But the time has expired.

Mr. John F. Davis: But the time has expired.

So they get an extension of time in effect by going to court in getting an order.

It doesn't really make any sense.

Justice Felix Frankfurter: So why would the court had followed in giving that?

Mr. John F. Davis: Well --

Justice Felix Frankfurter: What are (Voice Overlap) --

Mr. John F. Davis: -- because according to -- according to Mr. Maurer, because under the statutes, once you -- you can modify it by going to court and getting a court order, then you can modify an existing certificate.

Justice Felix Frankfurter: Well, if -- if the court order had been modified, we can now --

Mr. John F. Davis: Well, the court --

Justice Felix Frankfurter: -- we can -- we can now actively modify (Voice Overlap) --

Mr. John F. Davis: The court -- the court order I -- I wouldn't think would modify it, but the court order would order the Board to modify and then it would get a section.

Now, I want to say one more to -- about the administrative procedure of the Board.

The Board has asserted this power to modify existing certificates.

From time to time, from 1947 through 1959, they have not followed this practice as an -- as a -- as a general practice, it's a -- it's concededly a better thing before a certificate becomes effective to have the -- to have the legal matters cleaned up.

But they have in situation such as this, where they had felt that it's important to get the service they have from 1947 to 1959, from time to time, exercised this authority in the cases in which they have done so, it's cited in our brief at page 18.

So insofar as --

Chief Justice Earl Warren: Is this the general practice to the contrary of Mr. Maurer suggests?

Mr. John F. Davis: The general -- yes.

Yes, in this sense, Mr. Chief Justice, that the Board recognizes as everybody else does that it is better when you can to clear up all of the legal problems in these cases before the certificate is issued.

It's the same is -- with the Federal Communications Commission or the other boards that when people --

Justice Felix Frankfurter: And normally -- and normally, it has done so?

Mr. John F. Davis: And normally, it has done so.

Justice Felix Frankfurter: And when it couldn't clean it up by the time of the effective date, it extended the (Voice Overlap) --

Mr. John F. Davis: Normally, it will extend the time so that it can do so.

And it would have done so here except for the specific reasons which it stated in its order.

And -- and it felt that there weren't sufficient errors -- sufficient chance of error to make it necessary to stay the orders and that it was important to get the service in -- into operation.

Justice Tom C. Clark: It's a proviso on 79 (a).

Is that normal or --

Mr. John F. Davis: Yes, I think it --

Justice Tom C. Clark: (Voice Overlap) --

Mr. John F. Davis: -- I think it appears in -- in normal certificates.

It appears in most -- it's a procedure to give themselves power to extend it --

Justice Felix Frankfurter: Well, but it's --

Mr. John F. Davis: -- if they need.

Justice Felix Frankfurter: -- a very different thing to give or sold that power --

Mr. John F. Davis: Oh, yes.

Justice Felix Frankfurter: -- when they -- when they allow the (Inaudible) of this operation.

Mr. John F. Davis: Oh, yes, it is.

I -- I -- this is -- this is another way of handling the situation and it is in the normal situation the preferable way of handling the situation to postpone the effective date and to get the legal problems cleared up before the operation starts.

In -- in some other cases, it's even more important, I mean there's a pipeline case here a few years ago where the pipeline was in the -- in the ground before the final order was -- was --

Justice Tom C. Clark: Well, this --

Mr. John F. Davis: -- finally upset.

Justice Tom C. Clark: -- this judge, it seem to be -- this views his language -- it couldn't be any more, page 79 (Inaudible) in view of the foregoing (Inaudible) should not be granted (Inaudible) to change jurisdiction (Inaudible)

Mr. John F. Davis: No.

I -- I was referring to the provision in the certificate of -- of public convenience and necessity.

Justice Tom C. Clark: All we meant -- is it right (Inaudible)

Mr. John F. Davis: Alright.

Justice Tom C. Clark: Is that a normal ordinary (Voice Overlap) --

Mr. John F. Davis: No, no.

That is -- that isn't.

I may have misunderstood.

I'm refer -- I was referring to the provision in the certificate which gave a right to extend the -- the --

Justice Tom C. Clark: Oh, no.

Mr. John F. Davis: -- effective date of the certificate.

No, this is the particular order made on these particular facts.

Justice Tom C. Clark: How many -- how many of those do they issue in normal course?

Mr. John F. Davis: Well --

Justice Tom C. Clark: Are there many?

Mr. John F. Davis: -- insofar as I know, we cite the only cases where this -- where there's been a modification afterwards.

They may have been some of these cases by the way they reserve the power and then didn't modify it like the Kansas City case that was referred to awhile ago.But in at least five cases, they'd reserved this power and have in fact modified it after, which notes are cited at page 18 of our -- of our brief.

Unknown Speaker: (Inaudible)

Mr. John F. Davis: This is the unusual situation when they do it.

But they -- they have done it in the past and they've always claimed the right to do it.

Justice William J. Brennan: In the urge of considerations here where the desire to have a Miami service --

Mr. John F. Davis: That is --

Justice William J. Brennan: -- made -- more urgent you suggest because they didn't think we -- was much in the way of merit to the petitions for reconsideration.

Mr. John F. Davis: But at least let's -- let's have them to the -- to the carrier in -- in accepting this -- this kind of a certificate.

Justice William J. Brennan: I don't see what bearing it has on the urgency.

Mr. John F. Davis: No, I don't think that that has any bearing on the urgency.

That bears on their discretion on whether -- if -- if, for example, they have thought that they had really made a mistake in -- in granting one of these through routes, they wouldn't have wanted to Delta to -- to invest in a large number of planes to -- to do it.

If -- if at that time they felt that it was -- that it's probable if they would never let them use it.

Justice William J. Brennan: And then talking about -- well, when they say they didn't -- suppose there was error, that went, I gather to all the petitions for --

Mr. John F. Davis: That's right.

Justice William J. Brennan: -- for reconsideration.

Those would start with these 10 points plus the major ones which were the trunk services to (Voice Overlap) --

Mr. John F. Davis: That's right.

There -- there were 14 petitions for re -- for rehearing on all of the -- of the substance of this -- of this proceeding.

Justice Hugo L. Black: May I ask you, Mr. Davis, suppose this had said, I don't know whether this has been ever said or not, that you're talking about a motion for reconsideration.

It's important to get lines established.

We're going to grant certificate which we hereby view a picture of this date, we reserved the right, however, at anytime within two years to change, alter or modify as we see fit.

Could they have done that?

Mr. John F. Davis: They couldn't have done that now, under your Seatrain case.

Justice Hugo L. Black: Suppose they had said within 30 days.

Mr. John F. Davis: No.

Not if there were no -- if there are provision for rehearing, I suppose up to the period that people could file for rehearing, it could have been opened up with the Commission itself, couldn't reserve power without going to 141 (h) a new -- a new proceeding.

Justice Hugo L. Black: And this did grant -- it went how long after this was done until they change or modify the order, scope of the order?

Mr. John F. Davis: Oh, that -- they did -- that's actually five months after the -- after the thing became effective.

This was -- this was -- we believe because it never became finally effective.

The -- the suggestion you made, if I understood your question, Mr. Justice, was a final order by the Board attempting to reserve the power to change it in the future.

Justice Hugo L. Black: Suppose they had in the Seatrain case, instead of doing what they did, and said, "We issue this certificate but we reserve the right to reconsider it at anytime hereinafter and change the scope."

Mr. John F. Davis: No.

The -- the provisions for reconsideration is contained in the statute.

And they couldn't have done that.

They couldn't match the statute.

Chief Justice Earl Warren: Suppose they had taken 10 months, maybe a year instead of five months, and these people have made their investments and started these lines, would they still have the power to -- to act as -- as they did here?

Mr. John F. Davis: Yes, they would have.

The -- if the -- if the lines -- the lines could have moved to get it cleared-up, I mean they could have moved --

Chief Justice Earl Warren: How --

Mr. John F. Davis: -- from mandamus for -- for an order and it pressed the Board for -- for a decision.

But the -- there were still have been no final order as -- under our argument.

Chief Justice Earl Warren: There'd be no like -- no -- no limitation at all?

Mr. John F. Davis: No.

Justice Felix Frankfurter: But you are cutting in to (g), practically, you're cutting in to (g), aren't you?

And the Chief's -- the Chief Justice's composition, you are cutting in to (g) in -- in to a 10-month per year.

Mr. John F. Davis: Well, no, you -- you --

Justice Felix Frankfurter: Well, I'm not taking (Voice Overlap) --

Mr. John F. Davis: They can't do it.

Justice Felix Frankfurter: (Voice Overlap) -- I'm not committing --

Mr. John F. Davis: No.

Justice Felix Frankfurter: -- myself to what I think about this case.

Mr. John F. Davis: No.

Justice Felix Frankfurter: But the effectiveness is you accomplished what (g) could also accomplish.

Mr. John F. Davis: They -- they couldn't fight deviousness if they wish to take a motion for reconsideration and put it on the shelf and say, "We are going to save ourselves power to -- to change this because --

Justice Felix Frankfurter: I'm not --

Mr. John F. Davis: -- we've got a pending motion and then not act on it."

They could do that.

Justice Felix Frankfurter: I'm not talking about deviousness, I'm talking the burden on administrative agency, even they've got excessive accumulation --

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: -- of business (Voice Overlap) --

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: Now, this might be a tough one, so they postponed it or differences within the Board.

Mr. John F. Davis: Yes.

And there might length of time --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: -- when it would be unreasonable.

Justice Felix Frankfurter: -- at all.

I understand.

But the -- the outcome is really dealing with a subject matter that's also barefoot in (g), isn't it?

Mr. John F. Davis: Well, it is a modification -- it is a modification of a certificate under which someone is operating, and that -- and that to that degree is extended as it is.