British Overseas Airways Corporation, British West Indian Airways, Limited, and Bahamas Airways, Limited v. Civil Aeronautics Board, Cunard Eagle Airways, Ltd.

304 F.2d 952

BRITISH OVERSEAS AIRWAYS CORPORATION, British West Indian Airways, Limited, and Bahamas Airways, Limited, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Cunard Eagle Airways, Ltd., et al., Intervenors. SCANDINAVIAN AIRLINES SYSTEM, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Cunard Eagle Airways, Ltd., et al., Intervenors. SOCIETE ANONYME BELGE D'EXPLOITATION DE LA NAVIGATION AERIENNE (SABENA), Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Cunard Eagle Airways, Ltd., et al., Intervenors. KLM ROYAL DUTCH AIRLINES, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Cunard Eagle Airways, Ltd., et al., Intervenors.

No. 16640.

No. 16643.

No. 16644.

No. 16652.

United States Court of Appeals District of Columbia Circuit.

Argued May 16, 1962.

Decided June 14, 1962.

Mr. George N. Tompkins, Jr., New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Abbot P. Mills, Washington, D. C., was on the brief, for petitioners in No. 16,640.

Mr. Hamilton O. Hale, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Robert T. A. Molloy, Washington, D. C., was on the brief, for petitioner in No. 16,643.

Mr. Samuel E. Gates, New York City, for petitioner in No. 16,652.

Mr. O. D. Ozment, Associate Gen. Counsel, Litigation and Research, Civil Aeronautics Bd., with whom Messrs. John H. Wanner, Gen. Counsel, Joseph B. Goldman, Deputy Gen. Counsel, Arthur R. Schor, William F. Becker, Attys., Civil Aeronautics Bd., and Richard A. Solomon, Atty., Dept. of Justice, were on the brief, for respondent.

Messrs. Ronald H. Cohen, New York City, and Albert F. Grisard, Washington, D. C., were on the brief for petitioner in No. 16,644.

Messrs. William C. Burt and Robert M. Beckman, Washington, D. C., were on the brief for intervenors.

Mr. Grant W. Wiprud, Washington, D. C., also entered an appearance for petitioner in No. 16,643.

Before DANAHER, BASTIAN and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge.

1

Section 1006(a) of the Federal Aviation Act of 1958, 49 U.S.C.A. § 1486 (a), here relied on, does not authorize review by this court, now or later, of the proposed regulation in suit, since it is "[an] order in respect of * * * foreign air carrier[s] subject to the approval of the President" under Section 801 of the Act, 49 U.S.C.A. § 1461 . See Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103 , 68 S.Ct. 431 , 92 L. Ed. 568 , interpreting the identical provision of the Civil Aeronautics Act, § 1006(a), formerly 49 U.S.C.A. § 646 . The prohibition cannot be circumvented by the expedient attempted here. This is not to say that there may not be a judicial remedy against administrative, or even Presidential, action beyond the scope of lawful authority, as defined by the Aviation Act. The petitions will accordingly be dismissed, without prejudice to independent proceedings in the District Court challenging the validity of the proposed regulation if and when promulgated.

2

Petitions dismissed.