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CIVIL AERONAUTICS BOARD V. DELTA AIR LINES, INC. 367 U.S. 316 


NO. 492.  ARGUED APRIL 27, 1961 - DECIDED JUNE 12, 1961* - 280 F.2D 43,
AFFIRMED. 

*TOGETHER WITH NO. 493, LAKE CENTRAL AIRLINES, INC., V. DELTA AIR
LINES, INC., ALSO ON CERTIORARI TO THE SAME COURT. 


ONCE A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY GRANTED BY THE
CIVIL AERONAUTICS BOARD TO AN AIR LINE HAS BECOME EFFECTIVE UNDER SEC.
401(F) OF THE FEDERAL AVIATION ACT OF 1958, THE BOARD MAY NOT ALTER IT
WITHOUT THE FORMAL NOTICE AND HEARING REQUIRED BY SEC. 401(G) - EVEN
THOUGH THE BOARD, AT THE TIME OF CERTIFICATION, HAS PURPORTED TO
RESERVE JURISDICTION TO MAKE SUMMARY MODIFICATIONS PURSUANT TO
PETITIONS FOR RECONSIDERATION AND SUCH PETITIONS HAVE BEEN FILED WITHIN
THE TIME PRESCRIBED BY THE BOARD'S REGULATIONS AND BEFORE THE EFFECTIVE
DATE OF THE CERTIFICATE.  PP. 317-334. 

(A)  CONGRESS INTENDED THAT CERTIFICATED AIR LINES SHOULD ENJOY
"SECURITY OF ROUTE," SO THAT THEY MIGHT INVEST THE CONSIDERABLE SUMS
REQUIRED TO SUPPORT THEIR OPERATIONS, AND IT PROVIDED IN SEC. 401(G)
CERTAIN MINIMUM PROTECTIONS BEFORE A CERTIFICATED OPERATION COULD BE
CANCELLED.  PP. 321-325. 

(B)  NOTWITHSTANDING THE GENERAL PRINCIPLE THAT AN ADMINISTRATIVE
ORDER IS NOT "FINAL" FOR THE PURPOSES OF JUDICIAL REVIEW UNTIL
OUTSTANDING PETITIONS FOR RECONSIDERATION HAVE BEEN DISPOSED OF, THE
BOARD MAY NOT, BY RESERVING JURISDICTION TO MAKE SUMMARY MODIFICATIONS
PURSUANT TO PETITIONS FOR RECONSIDERATION, DO INDIRECTLY WHAT CONGRESS
HAS FORBIDDEN IT TO DO DIRECTLY.  PP. 325-334. 

CIVIL AERONAUTICS BOARD V. DELTA AIR LINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE POWER OF THE CIVIL AERONAUTICS BOARD TO ALTER
A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, GRANTED TO
RESPONDENT DELTA AIR LINES, AFTER THAT CERTIFICATE HAD BECOME EFFECTIVE
UNDER SEC. 401(F) OF THE FEDERAL AVIATION ACT OF 1958.  72 STAT. 731,
755, 49 U.S.C. SEC. 1371(F).  (FN1)  THE ADMINISTRATIVE PROCEEDINGS
FROM WHICH THE PRESENT DISPUTE ARISES DATE BACK TO MAY 1955, AND
INVOLVE CONSIDERATION BY THE BOARD OF A NUMBER OF APPLICATIONS FOR NEW
SERVICE BETWEEN CITIES LOCATED IN AN AREA EXTENDING FROM THE GREAT
LAKES TO FLORIDA.  THE BOARD DIVIDED THE PROCEEDINGS INTO TWO GENERAL
CATEGORIES, CONSOLIDATING THE APPLICATIONS FOR LONG-HAUL SERVICE IN THE
GREAT LAKES-SOUTHEAST SERVICE CASE AND THOSE FOR SHORT-HAUL FLIGHTS IN
THE GREAT LAKES LOCAL SERVICE INVESTIGATION CASE.  IN ORDER TO PROTECT
FULLY THE INTERESTS OF LOCAL SERVICE CARRIERS, THE BOARD ALLOWED THESE
CARRIERS, INCLUDING PETITIONER LAKE CENTRAL AIRLINES, TO INTERVENE IN
THE HEARINGS ON THE LONG-HAUL APPLICATIONS. 

AT THE CONCLUSION OF THE GREAT LAKES-SOUTHEAST SERVICE CASE A NUMBER
OF AWARDS WERE MADE, INCLUDING ONE PERMITTING DELTA TO EXTEND AN
EXISTING ROUTE NORTHWEST SO AS TO PROVIDE SERVICE FROM MIAMI TO DETROIT
AND TO ADD INDIANAPOLIS AND LOUISVILLE AS INTERMEDIATE POINTS ON ITS
EXISTING CHICAGO-TO-MIAMI ROUTE.  CERTAIN RESTRICTIONS FOR THE
PROTECTION OF LOCAL CARRIERS WERE IMPOSED ON MANY OF THE AWARDS, THESE
RESTRICTIONS GENERALLY PROVIDING THAT FLIGHTS BETWEEN SPECIFIED
INTERMEDIATE CITIES HAD TO ORIGINATE AT OR BEYOND GIVEN DISTANT
POINTS.  THE STATED PURPOSE OF THESE RESTRICTIONS WAS TO PREVENT THE
LONG-HAUL CARRIER FROM DUPLICATING SO-CALLED "TURN-AROUND" SERVICE
ALREADY PROVIDED BY EXISTING LOCAL CARRIERS.  ONE SUCH RESTRICTION WAS
APPLIED TO DELTA'S RUN BETWEEN DETROIT AND VARIOUS LOCATIONS IN OHIO
BUT, BY AND LARGE, DELTA'S AWARD WAS FREE OF PROTECTIVE LIMITATIONS. 

THE BOARD'S ORDER ISSUED ON SEPTEMBER 30, 1958, AND IT SPECIFIED THAT
DELTA'S CERTIFICATE WAS TO BECOME EFFECTIVE ON NOVEMBER 29, 1958,
UNLESS POSTPONED BY THE BOARD PRIOR TO THAT DATE.  SHORTLY THEREAFTER,
WITHIN TIME LIMITS SET BY THE BOARD, (FN2) NUMEROUS PETITIONS FOR
RECONSIDERATION WERE FILED, INCLUDING ONE BY LAKE CENTRAL PROTESTING
THE BREADTH OF DELTA'S CERTIFICATE.  LAKE CENTRAL REQUESTED THAT, IF
THE BOARD SHOULD BE UNABLE TO DECIDE ITS PETITION FOR RECONSIDERATION
BEFORE NOVEMBER 29, THE EFFECTIVE DATE OF THE CERTIFICATE BE PUT OFF. 
ON NOVEMBER 28, ONE DAY BEFORE DELTA'S CERTIFICATE WAS TO BECOME
EFFECTIVE, THE BOARD ISSUED A LENGTHY MEMORANDUM AND ORDER, WHICH
STATED IN SUBSTANCE THAT THE REQUESTS FOR STAYS, WITH ONE IMMATERIAL
EXCEPTION, WERE DENIED, BUT THAT JUDGMENT ON THE MERITS OF THE
PETITIONS FOR RECONSIDERATION WOULD BE RESERVED.  THE BOARD EXPLAINED
THAT THE PARTIES HAD NOT MADE A SUFFICIENT SHOWING OF ERROR TO JUSTIFY
POSTPONEMENTS AND THAT, IN VIEW OF THE ADVENT OF THE PEAK WINTER
SEASON, FURTHER DELAY WOULD BE PARTICULARLY INAPPROPRIATE; THE BOARD
THEN SAID: 

"TO THE EXTENT THAT WE HAVE CONSIDERED THE PETITIONS FOR
RECONSIDERATION IN THE PRESENT ORDER WE HAVE DONE SO ONLY FOR THE
PURPOSES OF ASSESSING THE PROBABILITY OF ERROR IN OUR ORIGINAL
DECISION.  WE FEEL THAT SUCH ACTION IS NECESSARY TO A FAIR
CONSIDERATION OF THE STAY REQUESTS, AND 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." 

FOR REASONS NOT PRESENTLY PERTINENT, DELTA'S CERTIFICATE BECAME
EFFECTIVE ON DECEMBER 5, (FN3) RATHER THAN NOVEMBER 29, 1958, AND DELTA
COMMENCED ITS NEWLY AUTHORIZED OPERATIONS SHORTLY THEREAFTER.  ON MAY
7, 1959, THE BOARD ISSUED A NEW ORDER DISPOSING OF THE STILL-PENDING
PETITIONS FOR RECONSIDERATION.  BY THIS ORDER, THE BOARD AMENDED
DELTA'S CERTIFICATE IN RESPONSE TO THE RESTRICTIONS PROPOSED BY LAKE
CENTRAL.  SPECIFICALLY, THE BOARD BARRED DELTA'S OPERATIONS BETWEEN TEN
PAIRS OF INTERMEDIATE CITIES UNLESS THE FLIGHTS INITIATED AT ATLANTA OR
POINTS FARTHER SOUTH; THE EFFECT OF THIS ORDER WAS TO BAR CERTAIN
FLIGHTS DELTA WAS THEN OPERATING.  EVEN THEN, THE BOARD'S ACTION WAS
NOT FINAL; THE BOARD RESERVED THE POWER TO LIFT THESE RESTRICTIONS
PENDING THE OUTCOME OF THE GREAT LAKES LOCAL SERVICE CASE.  (FN4)  THE
BOARD'S DISPOSITION OF THE PETITIONS WAS TAKEN SUMMARILY, WITHOUT
FORMAL NOTICE TO THE PARTIES OR THE OPPORTUNITY FOR A HEARING PRIOR TO
DECISION. 

DELTA SOUGHT REVIEW OF THIS ORDER BEFORE THE BOARD, CHALLENGING THE
BOARD'S POWER TO CHANGE THE TERMS OF ITS CERTIFICATE AFTER THE
EFFECTIVE DATE THEREOF WITHOUT NOTICE OR HEARING.  THE BOARD OVERRULED
DELTA'S OBJECTION, STATING THAT:  "WE BELIEVE WE HAVE SUCH POWER, AND
WE HAVE EXERCISED IT IN THE PAST.  MOREOVER, THERE IS NO SHOWING, AND
WE ARE UNABLE TO CONCLUDE, THAT ANY SIGNIFICANT ADVERSE EFFECT WILL
RESULT TO EITHER DELTA OR THE PUBLIC FROM OBSERVANCE OF THE CONDITIONS
HERE INVOLVED."  ON REVIEW IN THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, HOWEVER, THE BOARD'S ORDER WAS OVERTURNED, THE COURT REASONING
THAT CONGRESS HAD MADE NOTICE AND HEARING A PREREQUISITE TO THE
EXERCISE OF THE BOARD'S POWER TO CHANGE AN EXISTING CERTIFICATE.  DELTA
AIR LINES, INC., V. CIVIL AERONAUTICS BOARD, 280 F.2D 43. 

THE ISSUE IN THIS CASE IS NARROW AND CAN BE STATED BRIEFLY:  HAS
CONGRESS AUTHORIZED THE BOARD TO ALTER, WITHOUT FORMAL NOTICE OR
HEARING, A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ONCE THAT
CERTIFICATE HAS GONE INTO EFFECT?  IF NOT, SHOULD IT MAKE ANY
DIFFERENCE THAT THE BOARD HAS PURPORTED TO RESERVE JURISDICTION PRIOR
TO CERTIFICATION TO MAKE SUMMARY MODIFICATIONS PURSUANT TO PETITIONS
FOR RECONSIDERATION?  WE THINK THAT BOTH THESE QUESTIONS MUST BE
ANSWERED IN THE NEGATIVE. 

WHENEVER A QUESTION CONCERNING ADMINISTRATIVE, OR JUDICIAL,
RECONSIDERATION ARISES, TWO OPPOSING POLICIES IMMEDIATELY DEMAND
RECOGNITION:  THE DESIRABILITY OF FINALITY, ON THE ONE HAND, AND THE
PUBLIC INTEREST IN REACHING WHAT, ULTIMATELY, APPEARS TO BE THE RIGHT
RESULT ON THE OTHER.  (FN5) SINCE THESE POLICIES ARE IN TENSION, IT IS
NECESSARY TO REACH A COMPROMISE IN EACH CASE AND PETITIONERS HAVE
ARGUED AT LENGTH THAT THE BOARD'S PRESENT PROCEDURE IS A HAPPY
RESOLUTION OF CONFLICTING INTERESTS.  HOWEVER, THE FACT IS THAT THE
BOARD IS ENTIRELY A CREATURE OF CONGRESS AND THE DETERMINATIVE QUESTION
IS NOT WHAT THE BOARD THINKS IT SHOULD DO BUT WHAT CONGRESS HAS SAID IT
CAN DO.  SEE UNITED STATES V. SEATRAIN LINES, 329 U.S. 424, 433.  CF.
DELTA AIR LINES V. SUMMERFIELD, 347 U.S. 74, 79-80.  THIS PROPOSITION
BECOMES CLEAR BEYOND QUESTION WHEN IT IS NOTED THAT CONGRESS HAS BEEN
ANYTHING BUT INATTENTIVE TO THIS ISSUE IN THE ACTS GOVERNING THE
VARIOUS ADMINISTRATIVE AGENCIES.  A REVIEW OF THESE STATUTES REVEALS A
WIDE VARIETY OF DETAILED PROVISIONS CONCERNING RECONSIDERATION, EACH
ONE ENACTED IN AN ATTEMPT TO TAILOR THE AGENCY'S DISCRETION TO THE
PARTICULAR PROBLEMS IN THE AREA.  (FN6)  IN THIS RESPECT, THE FEDERAL
AVIATION ACT IS NO EXCEPTION SINCE, IN SEC. 401(F) AND (G) OF THE ACT,
CONGRESS HAS STATED THE LIMITS OF THE BOARD'S POWER TO RECONSIDER IN
UNEQUIVOCAL TERMS.  SECTION 401(F) PROVIDES THAT "EACH CERTIFICATE
SHALL BE EFFECTIVE FROM THE DATE SPECIFIED THEREIN, AND SHALL CONTINUE
IN EFFECT UNTIL SUSPENDED OR REVOKED AS HEREINAFTER PROVIDED."  THE
PHRASE "AS HEREINAFTER PROVIDED" REFERS TO SEC. 401(G), WHICH STATES: 

"AUTHORITY TO MODIFY, SUSPEND, OR REVOKE 

"(G)  THE BOARD UPON PETITION OR COMPLAINT OR UPON ITS OWN
INITIATIVE, AFTER NOTICE AND HEARINGS, MAY ALTER, AMEND, MODIFY, OR
SUSPEND ANY SUCH CERTIFICATE, IN WHOLE OR IN PART, IF THE PUBLIC
CONVENIENCE AND NECESSITY SO REQUIRE, OR MAY REVOKE ANY SUCH
CERTIFICATE, IN WHOLE OR IN PART, FOR INTENTIONAL FAILURE TO COMPLY
WITH ANY PROVISION OF THIS TITLE OR ANY ORDER, RULE, OR REGULATION
ISSUED HEREUNDER OR ANY TERM, CONDITION, OR LIMITATION OF SUCH
CERTIFICATE:  PROVIDED, THAT NO SUCH CERTIFICATE SHALL BE REVOKED
UNLESS THE HOLDER THEREOF FAILS TO COMPLY, WITHIN A REASONABLE TIME TO
BE FIXED BY THE BOARD, WITH AN ORDER OF THE BOARD COMMANDING OBEDIENCE
TO THE PROVISION, OR TO THE ORDER (OTHER THAN AN ORDER ISSUED IN
ACCORDANCE WITH THIS PROVISO), RULE, REGULATION, TERM, CONDITION, OR
LIMITATION FOUND BY THE BOARD TO HAVE BEEN VIOLATED.  ANY INTERESTED
PERSON MAY FILE WITH THE BOARD A PROTEST OR MEMORANDUM IN SUPPORT OF OR
IN OPPOSITION TO THE ALTERATION, AMENDMENT, MODIFICATION, SUSPENSION,
OR REVOCATION OF THE CERTIFICATE." 

THIS LANGUAGE REPRESENTS TO US AN ATTEMPT BY CONGRESS TO GIVE THE
BOARD COMPREHENSIVE INSTRUCTIONS TO MEET ALL CONTINGENCIES AND THE
BOARD'S DUTY IS TO FOLLOW THESE INSTRUCTIONS, (FN7) PARTICULARLY IN
LIGHT OF THE FACT THAT OBEDIENCE THERETO RAISES NO SUBSTANTIAL
OBSTACLES.  IT IS TRUE, OF COURSE, THAT STATUTORY LANGUAGE NECESSARILY
DERIVES MUCH OF ITS MEANING FROM THE SURROUNDING CIRCUMSTANCES. 
HOWEVER, WE THINK THAT, WHILE THERE IS NO LEGISLATIVE HISTORY DIRECTLY
ON POINT, THE BACKGROUND OF THE AVIATION ACT STRONGLY SUPPORTS WHAT WE
BELIEVE TO BE THE PLAIN MEANING OF SEC. 401(F) AND (G).  IT IS CLEAR
FROM THE STATEMENTS OF THE SUPPORTERS OF THE PREDECESSOR OF THE
AVIATION ACT - THE CIVIL AERONAUTICS ACT OF 1938 - THAT CONGRESS WAS
VITALLY CONCERNED WITH WHAT HAS BEEN CALLED "SECURITY OF ROUTE" - I.E.,
PROVIDING ASSURANCE TO THE CARRIER THAT ITS INVESTMENT IN OPERATIONS
WOULD BE PROTECTED INSOFAR AS REASONABLY POSSIBLE.  (FN8)  AND THERE IS
NO OTHER EXPLANATION BUT THAT CONGRESS DELIMITED THE BOARD'S POWER TO
RECONSIDER ITS AWARDS WITH PRECISELY THIS FACTOR IN MIND; HENCE THE
LANGUAGE THAT A CERTIFICATE "SHALL BE EFFECTIVE  ...  UNTIL SUSPENDED
OR REVOKED AS HEREINAFTER PROVIDED", LANGUAGE WHICH IS ABSENT FROM
SEVERAL OF THE ACTS TO WHICH REFERENCE HAS BEEN MADE.  THUS, THE
STRUCTURE OF THE STATUTE, WHEN CONSIDERED IN LIGHT OF THE FACTOR
PERSUADING CONGRESS, INDICATES TO US THAT THE CRITICAL DATE IN THE MIND
OF CONGRESS WAS THE DATE ON WHICH THE CARRIER COMMENCED OPERATIONS,
WITH THE CONCOMITANT INVESTMENT IN FACILITIES AND PERSONNEL, NOT THE
DATE THAT ABSTRACT LEGAL ANALYSIS MIGHT INDICATE AS THE "FINAL" DATE. 
IN OTHER WORDS, IT SEEMS CLEAR TO US THAT CONGRESS WAS RELATIVELY
INDIFFERENT TO THE FLUCTUATIONS AN AWARD MIGHT UNDERGO PRIOR TO THE
TIME IT AFFECTED PRACTICAL RELATIONSHIPS, BUT THAT CONGRESS WAS VITALLY
CONCERNED WITH ITS SECURITY AFTER THE WHEELS HAD BEEN SET IN MOTION. 
IN LIGHT OF THIS, WE THINK THE RESULT WE REACH FOLLOWS NATURALLY:  TO
THE EXTENT THERE ARE UNCERTAINTIES OVER THE BOARD'S POWER TO ALTER
EFFECTIVE CERTIFICATES, THERE IS AN IDENTIFIABLE CONGRESSIONAL INTENT
THAT THESE UNCERTAINTIES BE RESOLVED IN FAVOR OF THE CERTIFICATED
CARRIER AND THAT THE SPECIFIC INSTRUCTIONS SET OUT IN THE STATUTE
SHOULD NOT BE MODIFIED BY RESORT TO SUCH GENERALITIES AS
"ADMINISTRATIVE FLEXIBILITY" AND "IMPLIED POWERS."  WE DO NOT QUARREL
WITH THOSE WHO WOULD GRANT THE BOARD GREAT DISCRETION TO CONJURE WITH
CERTIFICATES PRIOR TO EFFECTUATION.  BUT, WE FEEL THAT WE WOULD BE
PAYING LESS THAN ADEQUATE DEFERENCE TO THE INTENT OF CONGRESS WERE WE
NOT TO HOLD THAT, AFTER A CERTIFICATE HAS GONE INTO EFFECT, THE
INSTRUCTIONS SET OUT IN THE STATUTE ARE TO BE FOLLOWED SCRUPULOUSLY. 

HOWEVER, PETITIONERS ARGUE THAT THERE IS AN IMPLIED EXCEPTION TO THE
STATUTORY MANDATE WHEN THE BOARD, PURSUANT TO A PETITION FOR
RECONSIDERATION FILED BEFORE THE CERTIFICATE'S EFFECTIVE DATE, MAKES A
STATEMENT THAT THE CERTIFICATE IS SUBJECT TO LATER AMENDMENT AFTER
FURTHER DELIBERATION UPON THE PETITION.  PETITIONERS ADMIT THAT THERE
IS NO EXPRESS STATUTORY AUTHORITY FOR THE BOARD TO ENTERTAIN PETITIONS
FOR RECONSIDERATION EVEN PRIOR TO THE EFFECTIVE DATE OF THE
CERTIFICATE, BUT THEY ASSERT, AND WE ASSUME ARGUENDO THEY ARE CORRECT,
THAT THE BOARD HAS IMPLIED POWER TO ACCEPT SUCH PETITIONS.  THIS BEING
THE CASE, PETITIONERS CLAIM THAT THE EXISTENCE OF AN OUTSTANDING
PETITION FOR RECONSIDERATION GIVES A DOUBLE MEANING TO THE TERM
"EFFECTIVE" AS USED IN THE ACT: CERTIFICATES ARE "EFFECTIVE" ON THE
DATE SPECIFIED THEREIN FOR THE PURPOSE OF ALLOWING THE CERTIFICATED
CARRIER TO COMMENCE OPERATIONS, BUT THEY ARE NOT "EFFECTIVE" AS THE
TERM IS USED IN SEC. 401(F) SO AS TO PRECLUDE MODIFICATION OUTSIDE THE
PROCEDURES SPECIFIED IN SEC. 401(G). 

THE APPEAL OF THIS ARGUMENT COMES, IN THE MAIN, FROM THE GENERAL
NOTION THAT AN ADMINISTRATIVE ORDER IS NOT "FINAL," FOR THE PURPOSES OF
JUDICIAL REVIEW, UNTIL OUTSTANDING PETITIONS FOR RECONSIDERATION HAVE
BEEN DISPOSED OF.  SEE, E.G., OUTLAND V. CIVIL AERONAUTICS BOARD, 109
U.S. APP. D.C. 90, 284 F.2D 224; BRANIFF AIRWAYS, INC., V. CIVIL
AERONAUTICS BOARD, 79 U.S. APP. D.C. 341, 147 F.2D 152.  ONCE IT IS
ESTABLISHED THAT THE CERTIFICATE IS NOT "FINAL" FOR ONE PURPOSE, THE
ARGUMENT RUNS, THEN IT IS LOGICAL TO ASSUME THAT THE CERTIFICATE LACKS
"FINALITY" FOR ANOTHER.  THE DIFFICULTIES WITH THIS LINE OF REASONING,
HOWEVER, ARE MANY.  FIRST, INSOFAR AS IT IS BOTTOMED ON CASES SUCH AS
OUTLAND AND BRANIFF, THE ARGUMENT RELIES ON HOLDINGS THAT WERE NEVER
MADE.  THE COURTS OF APPEALS IN THESE CASES DECIDED ONLY THAT PETITIONS
FOR REVIEW WERE TIMELY IF FILED IN TIME FROM THE DATE ON WHICH THE
BOARD DISPOSED OF PENDING PETITIONS FOR RECONSIDERATION; THE QUESTION
WHETHER THE BOARD'S ACTION ON THE PETITIONS FOR RECONSIDERATION SHOULD
HAVE BEEN TAKEN AFTER NOTICE AND HEARING DID NOT ARISE.  FURTHERMORE,
PETITIONERS' ARGUMENT SKIPS AN IMPORTANT LOGICAL STEP; IT ASSUMES,
WITHOUT EXPLANATION, THAT QUESTIONS OF ADMINISTRATIVE FINALITY PRESENT
THE SAME PROBLEMS, AND THEREFORE DESERVE THE SAME SOLUTIONS, AS
QUESTIONS CONCERNING THE TIMELINESS OF AN APPEAL.  IN POINT OF FACT,
THIS ASSERTION IS NOT ONLY UNSUPPORTED BUT ERRONEOUS.  THE PERTINENT
STATUTORY LANGUAGE IS NOT SIMILAR IN THE TWO INSTANCES (FN9) AND THE
OTHER POINTS UNDER ANALYSIS ARE DIFFERENT.  THUS, A COURT CONSIDERING
THE TIMELINESS OF A LITIGANT'S APPEAL IS CONCERNED WITH THE WISDOM OF
EXERCISING ITS OWN POWER TO ACT, AND THE RESULT DEPENDS ON SUCH FACTORS
AS FAIRNESS TO THE APPELLANT AND THE INTENT OF CONGRESS IN PASSING A
GENERAL STATUTE - SEC. 10(C) OF THE ADMINISTRATIVE PROCEDURE ACT -
WHICH APPLIES EQUALLY TO ALMOST ALL ADMINISTRATIVE AGENCIES.  THERE IS
NO CALL, AS OUTLAND AND SIMILAR CASES ILLUSTRATE BY THEIR OMISSIONS,
FOR CONSIDERING EITHER THE SECTIONS OF A PARTICULAR ACT WHICH ARE NOT
CONCERNED WITH APPELLATE REVIEW OR THE PROBLEM - WHICH AT THAT POINT IS
OF HISTORICAL INTEREST ONLY - WHETHER THE PETITION FOR RECONSIDERATION
SHOULD HAVE BEEN DECIDED SUMMARILY OR AFTER NOTICE AND HEARING.  ONE
MIGHT ARGUE, OF COURSE, THAT THE QUESTION IS SIMILAR IN BOTH INSTANCES
BECAUSE, IF THE BOARD'S ACTION ON THE PETITION FOR RECONSIDERATION IS
TOO LATE, THEN AN APPEAL WHICH IS TIMELY ONLY FROM THE BOARD'S ACTION
ON RECONSIDERATION IS ALSO TOO LATE.  HOWEVER, THIS LINE OF REASONING
OVERLOOKS THE CONFINES OF THE RESULT WE ARE REACHING IN THIS CASE.  WE
ARE NOT SAYING THAT THE BOARD CANNOT ENTERTAIN PETITIONS FOR
RECONSIDERATION AFTER EFFECTIVE CERTIFICATION, NOR ARE WE HOLDING THAT
SUCH PETITIONS CANNOT BE DENIED SUMMARILY; ALL WE HOLD IS THAT THE
PETITIONS CANNOT BE GRANTED AND THE CERTIFICATED CARRIER'S OPERATIONS
CURTAILED WITHOUT NOTICE OR HEARING.  THEREFORE, SINCE THE CASES SUCH
AS OUTLAND CONCERNED THE DENIAL OF A PETITION FOR RECONSIDERATION,
THERE IS NO CONFLICT, EXPRESS OR IMPLIED, BETWEEN THOSE DECISIONS AND
THIS ONE.   (FN10)  IN THIS CONNECTION, THE STATEMENT OF A LEADING
COMMENTATOR SEEMS PARTICULARLY PERTINENT: 

"THE TENDENCY TO ASSUME THAT A WORD WHICH APPEARS IN TWO OR MORE
LEGAL RULES, AND SO IN CONNECTION WITH MORE THAN ONE PURPOSE, HAS, AND
SHOULD HAVE PRECISELY THE SAME SCOPE IN ALL OF THEM RUNS ALL THROUGH
LEGAL DISCUSSIONS.  IT HAS ALL THE TENACITY OF ORIGINAL SIN AND MUST
CONSTANTLY BE GUARDED AGAINST."  COOK, THE LOGICAL AND LEGAL BASES OF
THE CONFLICT OF LAWS, 159.  (FN11) 

THIRDLY, WERE WE TO ADOPT THE POSITION URGED BY PETITIONERS, WE WOULD
HAVE TO HOLD THAT, IN THE WORDS OF A FORMER CHAIRMAN OF THE BOARD, THE
POWER TO RECONSIDER A CASE MAY BE THE LEVER FOR "NULLIFYING AN EXPRESS
PROVISION OF THE ACT."  RYAN, THE REVOCATION OF AN AIRLINE CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY, 15 J. AIR L. & COMM. 377, 384.  AS
COMMISSIONER RYAN INDICATED, THE POWER THE BOARD ASKS FOR IN THIS CASE
SEEMS NOTHING MORE OR LESS THAN THE POWER TO DO INDIRECTLY WHAT IT
CANNOT DO DIRECTLY.  PARENTHETICALLY, IT SHOULD BE NOTED THAT, FOR
PURPOSES OF THIS DISPUTE, IT IS DIFFICULT TO DRAW A DISTINCTION BETWEEN
A PETITION FOR RECONSIDERATION FILED BY A PARTY AND ONE INITIATED BY
THE BOARD SUA SPONTE.  SPRAGUE V. WOLL, 122 F.2D 128.  THIS BEING THE
CASE, IT IS ALL THE MORE SIGNIFICANT THAT THE COURT IN UNITED STATES V.
SEATRAIN LINES, 329 U.S. 424, WHILE OVERRULING THE INTERSTATE COMMERCE
COMMISSION'S CONTENTION THAT IT HAD INHERENT POWER TO RECONSIDER
EFFECTIVE CERTIFICATES, PAID NO ATTENTION TO THE FACT THAT THE
COMMISSION HAD MADE THE ORIGINAL CERTIFICATE EFFECTIVE, SUBJECT "TO
SUCH TERMS, CONDITIONS, AND LIMITATIONS AS ARE NOW, OR MAY HEREAFTER
BE, ATTACHED TO THE EXERCISE OF SUCH AUTHORITY BY THIS COMMISSION." 

ALTHOUGH WE FEEL THAT THE LANGUAGE AND BACKGROUND OF THE STATUTE ARE
SUFFICIENTLY CLEAR SO THAT AFFIRMANCE CAN REST SOLELY ON THAT BASIS, IT
SEEMS APPROPRIATE, IN LIGHT OF PETITIONERS' VIGOROUS ASSERTION THAT
POLICY REASONS COMPEL THEIR RESULT, TO DISCUSS SOME OF THE
RAMIFICATIONS OF OUR DECISION.  IN THE FIRST PLACE, IT BEARS REPETITION
THAT WE ARE NOT DECIDING THAT THE BOARD IS BARRED FROM RECONSIDERING
ITS INITIAL DECISION.  ALL WE HOLD IS THAT, IF THE BOARD WISHES TO DO
SO, IT MUST PROCEED IN THE MANNER AUTHORIZED BY STATUTE.  THUS, FOR
EXAMPLE, THE BOARD MAY RECONSIDER AN EFFECTIVE CERTIFICATE AT ANY TIME
IF IT AFFORDS THE CERTIFICATED CARRIER NOTICE AND HEARING PRIOR TO
DECISION; OR, IF IT FEELS UNCERTAIN ABOUT THE DECISION PRIOR TO ITS
EFFECTIVE DATE, IT MAY POSTPONE THE EFFECTIVE DATE UNTIL ALL
DIFFERENCES HAVE BEEN RESOLVED; AND, IF NEITHER OF THESE PROCEDURES
SEEM PRACTICAL IN A GIVEN CASE, THE BOARD MAY ISSUE A TEMPORARY
CERTIFICATE SET TO EXPIRE ON THE DATE THE BOARD PRESCRIBES FOR RE
EXAMINATION.  (FN12)  INDEED, WTIH ALL THESE WEAPONS AT ITS COMMAND, IT
IS DIFFICULT TO FOLLOW THE ARGUMENT THAT THE BOARD SHOULD BE ALLOWED TO
IMPROVISE ON THE POWERS GRANTED BY CONGRESS IN ORDER TO PRESERVE
ADMINISTRATIVE FLEXIBILITY. 

FURTHERMORE, IT WOULD SEEM THAT ANY REALISTIC APPRAISAL OF THE
RELATIVE HARDSHIPS INVOLVED IN THIS CASE CUTS IN FAVOR OF THE
RESPONDENT.  TO BE SURE, THE BOARD MAY BE ABLE TO ACT QUICKER UNDER THE
RULE IT ESPOUSES AND, BY ELIMINATING THE NECESSITY OF A NEW HEARING,
LAKE CENTRAL WILL BE SPARED THE EXPENSE OF PREPARING A NEW RECORD. 
HOWEVER, WERE THE BOARD CORRECT, RESPONDENT WOULD BE SUBJECTED TO THE
LOSS OF VALUABLE ROUTES, ROUTES IT HAD ALREADY BEGUN TO OPERATE AFTER
CONSIDERABLE INITIAL INVESTMENT, WITHOUT BEING HEARD IN OPPOSITION. 
THE BOARD POINTS OUT THAT RESPONDENT HAD NOTICE THAT THE BOARD HAD
RESERVED THE RIGHT TO AMEND THE CERTIFICATE.  BUT IT IS NOT CLEAR WHAT
COMFORT RESPONDENT COULD TAKE FROM SUCH NOTICE; RESPONDENT COULD NOT
HEDGE, SINCE SEC. 401(F) OF THE ACT PROVIDES THAT A CERTIFICATED
CARRIER MAY LOSE THE RIGHT TO CONDUCT ANY SERVICE IT DOES NOT INITIATE
WITHIN 90 DAYS OF CERTIFICATION.  CONCEDEDLY, THE FACT OF NOTICE GIVES
CONSIDERABLE SURFACE APPEAL TO PETITIONERS' ASSERTIONS; THEY CAN AND DO
ARGUE THAT RESPONDENT KNEW WHAT IT WAS GETTING INTO AND SHOULD NOT BE
HEARD TO COMPLAIN WHEN THE GAMBLE TURNS OUT UNFAVORABLY.  HOWEVER, IT
MUST BE REMEMBERED THAT THE PROBLEM IS NOT PRESENTED TO US IN THE
ABSTRACT; WE ARE DEALING WITH IT IN THE CONTEXT OF THIS PARTICULAR
STATUTE.  AND, AS STATED ABOVE, A MAJOR PURPOSE BEHIND THE ENACTMENT OF
THE AVIATION ACT WAS TO ELIMINATE THE ELEMENT OF RISK FROM A CARRIER'S
OPERATIONS.  WITH CONGRESS ON RECORD AS AFFIRMATIVELY DESIRING TO
ELIMINATE THE NECESSITY OF GAMBLING, WE DO NOT FEEL THAT THE
"ASSUMPTION OF THE RISK" ARGUMENT CARRIES MUCH WEIGHT.  THE BOARD ALSO
ARGUES THAT RESPONDENT "IN SUBSTANCE" ENJOYED THE HEARING CONTEMPLATED
BY SEC. 401(G) BECAUSE THE MATTERS IMPELLING THE BOARD TO CHANGE ITS
MIND WERE MATTERS THAT HAD BEEN THRASHED OUT DURING THE HEARINGS ON THE
ORIGINAL CERTIFICATE.  HOWEVER, THIS CONTENTION ASSUMES A FACT THAT WE
DO NOT HAVE BEFORE US - THAT A HEARING WOULD NOT HAVE DISCLOSED ANY
FURTHER EVIDENCE OR, PERHAPS MORE IMPORTANTLY, ANY POST-CERTIFICATION
EVENTS WEIGHTY ENOUGH TO ALTER THE BOARD'S THINKING.  (FN13) 

IN SHORT, OUR CONCLUSION IS THAT CONGRESS WANTED CERTIFICATED
CARRIERS TO ENJOY "SECURITY OF ROUTE" SO THAT THEY MIGHT INVEST THE
CONSIDERABLE SUMS REQUIRED TO SUPPORT THEIR OPERATIONS; AND, TO THIS
END, CONGRESS PROVIDED CERTAIN MINIMUM PROTECTIONS BEFORE A
CERTIFICATED OPERATION COULD BE CANCELLED.  WE DO NOT THINK IT TOO MUCH
TO ASK THAT THE BOARD FURNISH THESE MINIMUM PROTECTIONS AS A MATTER OF
COURSE, WHETHER OR NOT THE BOARD IN A GIVEN CASE MIGHT THINK THEM
MEANINGLESS.  IT MIGHT BE ADDED THAT SOME AUTHORITIES HAVE FELT
STRONGLY ENOUGH ABOUT THE PRACTICAL SIGNIFICANCE OF THESE PROTECTIONS
TO SUGGEST THAT THEIR PRESENCE MAY BE REQUIRED BY THE FIFTH AMENDMENT. 
SEE SEATRAIN LINES V. UNITED STATES, 64 F. SUPP. 156, 161; HANDLON V.
TOWN OF BELLEVILLE, 4 N.J. 99, 71 A.2D 624; SEE ALSO 63 HARV. L. REV.
1437, 1439. 

PETITIONERS' FINAL ARGUMENT IS THAT THEIR POSITION IS SUPPORTED BY
CONSISTENT ADMINISTRATIVE CONSTRUCTION AND ANALOGOUS CASE AUTHORITY. 
THE ADMINISTRATIVE CONSTRUCTION ARGUMENT APPEARS LESS THAN SUBSTANTIAL
IN LIGHT OF THE FACT THAT, ON THE LAST AND, IT APPEARS, ONLY OCCASION
WHEN THE PRESENT QUESTION WAS EXPRESSLY CONSIDERED, THE BOARD SAID IN
DICTUM THAT IT HAD "GRAVE DOUBTS" ABOUT PROCEEDING IN THE MANNER
FOLLOWED IN THIS CASE.  KANSAS CITY-MEMPHIS-FLORIDA CASE, 9 C.A.B. 401;
(FN14) CF. SMITH BROS., REVOCATION OF CERTIFICATE, 33 M.C.C. 465.  SEE
GENERALLY RYAN, SUPRA, WHERE COMMISSIONER RYAN WENT TO GREAT LENGTHS TO
EXPOSE WHAT HE FELT WERE THE FALLACIES IN THE CONTENTIONS NOW ADVANCED
BY PETITIONERS.  WITH RESPECT TO PRIOR CASES, PETITIONERS AGAIN ARE
UNABLE TO CITE ANY HOLDINGS ON POINT.  PETITIONERS RELY HEAVILY ON
FRONTIER AIRLINES, INC., V. CIVIL AERONAUTICS BOARD, 104 U.S. APP. D.C.
78, 259 F.2D 808, BUT THE DISPUTE HERE INVOLVED WAS NOT RAISED IN THAT
CASE.  THE CLOSEST ANALOGY IN FRONTIER IS TO THE ARGUMENT PUT FORWARD
BY A PARTY WHOSE PETITION FOR RECONSIDERATION HAD BEEN DENIED; AND THE
COURT OF APPEALS REPORTED THIS ARGUMENT AND THE REASONS FOR OVERRULING
IT AS FOLLOWS: 

"THE ORDER ON RECONSIDERATION IS A NULLITY BECAUSE IT WAS RENDERED
AFTER THE PETITION FOR JUDICIAL REVIEW HAD BEEN FILED AND AFTER THE
CERTIFICATES PREVIOUSLY ISSUED HAD BECOME EFFECTIVE; AND, IF THAT ORDER
IS A NULLITY, THE BASIC ORDER IS ALSO A NULLITY BECAUSE IT FAILS TO
COVER CERTAIN POINTS. 

*         *         *         *         * 

"WE DO NOT FIND THE ORDER DENYING RECONSIDERATION INVALID BECAUSE
RENDERED AFTER THIS PETITION WAS FILED.  NO HARM WAS DONE.  HAD THE
BOARD BEEN OF A MIND TO GRANT RECONSIDERATION, IT COULD HAVE SO
INDICATED AND A MOTION TO REMAND WOULD HAVE BEEN IN ORDER." 

PERHAPS MORE FAVORABLE TO PETITIONERS IS THIS COURT'S DECISION IN
UNITED STATES V. ROCK ISLAND MOTOR TRANSPORT CO., 340 U.S. 419, WHERE
IT WAS HELD THAT THE INTERSTATE COMMERCE COMMISSION COULD MODIFY A
MOTOR CARRIER'S EFFECTIVE CERTIFICATE PURSUANT TO A RESERVATION IN THE
INITIAL ORDER.  HOWEVER, TWO IMPORTANT DISTINCTIONS BETWEEN THAT CASE
AND THIS ARE APPARENT:  (1) THE MOTOR CARRIER ACT MAKES EXPRESS
PROVISION FOR SUMMARY MODIFICATIONS AFTER CERTIFICATION, 49 U.S.C. SEC.
308, AND (2) THE COURT IN ROCK ISLAND WAS VERY CAREFUL TO LIMIT ITS
HOLDING TO THE PARTICULAR MODIFICATION MADE IN THAT CASE.  FINALLY, THE
DECISION WHICH IS ANALYTICALLY MOST RELEVANT TO THIS CASE, UNITED
STATES V. SEATRAIN LINES, SUPRA, FURNISHES SUPPORT FOR RESPONDENT,
RATHER THAN PETITIONERS.  WHILE SEATRAIN MAY BE DISTINGUISHABLE ON ITS
FACTS, (FN15) THE COURT SPOKE IN GENERAL TERMS OF THE RULE THAT
SUPERVISING AGENCIES DESIRING TO CHANGE EXISTING CERTIFICATES MUST
FOLLOW THE PROCEDURES "SPECIFICALLY AUTHORIZED" BY CONGRESS AND CANNOT
RELY ON THEIR OWN NOTIONS OF IMPLIED POWERS IN THE ENABLING ACT.  IN
SHORT, WE DO NOT FIND THAT PRIOR AUTHORITY CLEARLY FAVORS EITHER SIDE;
HOWEVER, TO THE EXTENT THAT A BROAD OBSERVATION IS PERMISSIBLE, WE
THINK THAT BOTH ADMINISTRATIVE AND JUDICIAL FEELINGS HAVE BEEN OPPOSED
TO THE PROPOSITION THAT THE AGENCIES MAY EXPAND THEIR POWERS OF
RECONSIDERATION WITHOUT A SOLID FOUNDATION IN THE LANGUAGE OF THE
STATUTE.  THEREFORE, SINCE THE LANGUAGE AND BACKGROUND OF THE STATUTE
ARE AGAINST, RATHER THAN FOR, THE BOARD, THE JUDGMENT OF THE COURT OF
APPEALS MUST BE AFFIRMED. 

FN1  THIS SECTION PROVIDES: 

"EACH CERTIFICATE SHALL BE EFFECTIVE FROM THE DATE SPECIFIED THEREIN,
AND SHALL CONTINUE IN EFFECT UNTIL SUSPENDED OR REVOKED AS HEREINAFTER
PROVIDED, OR UNTIL THE BOARD SHALL CERTIFY THAT OPERATION THEREUNDER
HAS CEASED, OR, IF ISSUED FOR A LIMITED PERIOD OF TIME UNDER SUBSECTION
(D)(2) OF THIS SECTION, SHALL CONTINUE IN EFFECT UNTIL THE EXPIRATION
THEREOF, UNLESS, PRIOR TO THE DATE OF EXPIRATION, SUCH CERTIFICATE
SHALL BE SUSPENDED OR REVOKED AS PROVIDED HEREIN, OR THE BOARD SHALL
CERTIFY THAT OPERATIONS THEREUNDER HAVE CEASED:  PROVIDED, THAT IF ANY
SERVICE AUTHORIZED BY A CERTIFICATE IS NOT INAUGURATED WITHIN SUCH
PERIOD, NOT LESS THAN NINETY DAYS, AFTER THE DATE OF THE AUTHORIZATION
AS SHALL BE FIXED BY THE BOARD, OR IF, FOR A PERIOD OF NINETY DAYS OR
SUCH OTHER PERIOD AS MAY BE DESIGNATED BY THE BOARD ANY SUCH SERVICE IS
NOT OPERATED, THE BOARD MAY BY ORDER, ENTERED AFTER NOTICE AND HEARING,
DIRECT THAT SUCH CERTIFICATE SHALL THEREUPON CEASE TO BE EFFECTIVE TO
THE EXTENT OF SUCH SERVICE." 

FN2  THE BOARD'S REGULATIONS CONCERNING PETITIONS FOR
RECONSIDERATION, 14 CFR SEC.  302.37, PROVIDE IN PART THAT: 

"PETITION FOR RECONSIDERATION - (A) TIME FOR FILING.  A PETITION FOR
RECONSIDERATION, REHEARING OR REARGUMENT MAY BE FILED BY ANY PARTY TO A
PROCEEDING WITHIN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF A FINAL
ORDER BY THE BOARD IN SUCH PROCEEDING UNLESS THE TIME IS SHORTENED OR
ENLARGED BY THE BOARD, EXCEPT THAT SUCH PETITION MAY NOT BE FILED WITH
RESPECT TO AN INITIAL DECISION WHICH HAS BECOME FINAL THROUGH FAILURE
TO FILE EXCEPTIONS THERETO.  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.  AFTER THE EXPIRATION OF
THE PERIOD OF FILING A PETITION, A MOTION FOR LEAVE TO FILE SUCH
PETITION MAY BE FILED; BUT NO SUCH MOTION SHALL BE GRANTED EXCEPT ON A
SHOWING OF UNUSUAL AND EXCEPTIONAL CIRCUMSTANCES, CONSTITUTING GOOD
CAUSE FOR FAILURE TO MAKE TIMELY FILING.  WITHIN TEN (10) DAYS AFTER A
PETITION FOR RECONSIDERATION, REHEARING, OR REARGUMENT IS FILED, ANY
PARTY TO THE PROCEEDING MAY FILE AN ANSWER IN SUPPORT OF OR IN
OPPOSITION TO THE PETITION."    FN3  A TEMPORARY STAY WAS GRANTED FROM
NOVEMBER 29 TO DECEMBER 5 TO ENABLE THE COURT OF APPEALS TO CONSIDER A
REQUEST BY EASTERN AIR LINES FOR A JUDICIAL STAY OF CERTAIN AWARDS MADE
IN THE ORIGINAL PROCEEDING.  EASTERN DID NOT GET ITS STAY NOR WAS ITS
CHALLENGE ON THE MERITS UPHELD.  EASTERN AIR LINES V. CIVIL AERONAUTICS
BOARD, 271 F.2D 752. 

FN4  WE ARE INFORMED THAT THIS CASE HAS NOW BEEN COMPLETED BUT NO
FURTHER ACTION HAS BEEN TAKEN ON DELTA'S RESTRICTIONS.    FN5  SEE
TOBIAS, ADMINISTRATIVE RECONSIDERATION:  SOME RECENT DEVELOPMENTS IN
NEW YORK, 28 N.Y.U.L. REV. 1262, WHERE THE AUTHOR OBSERVED: 

"RE-EXAMINATION AND RECONSIDERATION ARE AMONG THE NORMAL PROCESSES OF
INTELLIGENT LIVING.  ADMITTEDLY NO WARRANTY OF CORRECTNESS OR FITNESS
ATTACHES TO A DECISION OR AN ACTION SIMPLY BECAUSE IT IS A THING OF THE
PAST.  EVERY-DAY EXPERIENCE TEACHES THE CONTRARY:  WHILE THE CHOICE
FIRST MADE MAY WELL REMAIN THE COURSE ULTIMATELY FOLLOWED, OFTEN ENOUGH
IT IS FOUND ON FURTHER CONSIDERATION TO REQUIRE REVISION.  ON THE OTHER
HAND, CONSTANT RE-EXAMINATION AND ENDLESS VACILLATION MAY BECOME
LUDICROUS, SELF-DEFEATING, AND EVEN OPPRESSIVE.  WHETHER FOR BETTER OR
FOR WORSE SO FAR AS THE MERITS OF THE CHOSEN COURSE ARE CONCERNED, A
POINT MAY BE REACHED AT WHICH THE DIE NEEDS TO BE CAST WITH SOME
'FINALITY.'  AN OPPOSITION MAY THUS DEVELOP BETWEEN THE RIGHT RESULT
AND THE FINAL ONE." 

SEE ALSO THE STATEMENT OF THE BOARD IN ITS ORIGINAL OPINION IN THIS
CASE, DENYING A MOTION TO REOPEN THE RECORD: 

"OUR GENERAL POLICY WITH RESPECT TO MOTIONS TO REOPEN THE RECORD FOR
RECEIPT OF DATA ON THE MOST RECENT OPERATING EXPERIENCE HAS
CONSISTENTLY REFLECTED THE REQUIREMENT OF THE PUBLIC INTEREST THAT THE
RECORD IN MAJOR ROUTE CASES BE BROUGHT TO A CLOSE AS EXPEDITIOUSLY AS
POSSIBLE, CONSISTENT WITH THE REQUIREMENTS OF FULL HEARINGS, SO THAT
FINAL DECISION MAY BE RENDERED PROMPTLY.  INSTITUTION OF NEEDED NEW
SERVICES COULD BE ENDLESSLY DELAYED WERE WE TO PERMIT THE RECORD TO BE
REOPENED IN THE FINAL PROCEDURAL STAGES OF A CASE FOR THE SUBMISSION OF
MORE RECENT OPERATING DATA (AND THE ATTENDANT CROSS-EXAMINATION AND
EXCHANGE OF REBUTTAL EVIDENCE).  ONLY IN THE CASES WHERE THE SITUATION
UNDER CONSIDERATION HAS CHANGED RADICALLY WOULD SUCH A COURSE OF ACTION
BE JUSTIFIED." 

FN6  GENERALLY SPEAKING, THE LESS INTERESTED CONGRESS HAS BEEN IN
WHAT HAS BEEN CALLED "SECURITY OF CERTIFICATE," THE WIDER THE SCOPE OF
RECONSIDERATION CONGRESS HAS ALLOWED TO THE SUPERVISING AGENCY.  SEE
GENERALLY DAVIS, RES JUDICATA IN ADMINISTRATIVE LAW, 25 TEXAS L. REV.
199.  IT CANNOT BE DOUBTED THAT CONGRESS WAS POWERFULLY INTERESTED IN
"SECURITY OF CERTIFICATE" WHEN IT PASSED THE AVIATION ACT.  SEE 83
CONG. REC. 6407. 

FN7  NO ONE CONTENDS THAT THE CHANGES MADE UPON RECONSIDERATION
CONSTITUTED THE CORRECTION OF INADVERTENT ERRORS.  SEE AMERICAN
TRUCKING ASSNS., INC., V. FRISCO TRANSPORTATION CO., 358 U.S. 133. 

FN8  SPEAKING ON BEHALF OF THE BILL WHICH BECAME THE PREDECESSOR OF
THE FEDERAL AVIATION ACT - THE CIVIL AERONAUTICS ACT OF 1938 -
CONGRESSMAN LEA, CHAIRMAN OF THE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE WHICH REPORTED THE BILL, SAID: 

"ONE HUNDRED AND TWENTY MILLION DOLLARS HAS ALREADY BEEN INVESTED IN
COMMERCIAL AVIATION IN THE UNITED STATES.  IT IS THE INFORMATION OF THE
COMMITTEE THAT $60,000,000 OF THIS SUM HAS BEEN WIPED OUT.  THE FACT
THAT SO MUCH MONEY HAS BEEN PUT INTO COMMERCIAL AVIATION SHOWS THE
FAITH, THE GENIUS, AND THE COURAGE OF THE AMERICAN PEOPLE IN THAT THEY
ARE WILLING TO INVEST AS THEY HAVE IN AVIATION UP TO THIS DATE. 
HOWEVER, IN THE ABSENCE OF LEGISLATION SUCH AS WE HAVE NOW BEFORE US
THESE LINES ARE GOING TO FIND IT VERY DIFFICULT IF NOT IMPOSSIBLE TO
FINANCE THEIR OPERATIONS BECAUSE OF THE LACK OF STABILITY AND ASSURANCE
IN THEIR OPERATIONS.  YOU WOULD NOT WANT TO INVEST $200 OR $2,000 A
MILE IN A LINE THAT HAS NO ASSURANCE OF SECURITY OF ITS ROUTE AND NO
PROTECTION AGAINST CUTTHROAT COMPETITION. 

"PART OF THE PROPOSAL HERE IS THAT THE REGULATORY BODY CREATED BY THE
BILL WILL HAVE AUTHORITY TO ISSUE CERTIFICATES OF CONVENIENCE AND
NECESSITY TO THE OPERATORS.  THIS WILL GIVE ASSURANCE OF SECURITY OF
ROUTE.  THE AUTHORITY WILL ALSO EXERCISE RATE CONTROL, REQUIRING THAT
RATES BE REASONABLE AND GIVING POWER TO PROTECT AGAINST CUTTHROAT
COMPETITION.  IN MY JUDGMENT, THOSE TWO THINGS ARE THE FUNDAMENTAL AND
ESSENTIAL NEEDS OF AVIATION AT THIS TIME, SECURITY AND STABILITY IN THE
ROUTE AND PROTECTION AGAINST CUTTHROAT COMPETITION. 

"THESE ARE THE TWO ECONOMIC FUNDAMENTALS PRESENTED AND IT IS THIS
NECESSITY THAT THE BILL SEEKS TO MEET.  WE WANT TO GIVE FINANCIAL
STABILITY TO THESE COMPANIES SO THEY CAN FINANCE THEIR OPERATIONS AND
FINANCE THEM TO ADVANTAGE."  83 CONG. REC. 6406-6407. 

FN9  THE "FINALITY" OF AN ORDER FOR PURPOSES OF JUDICIAL REVIEW
DEPENDS ON SEC. 10(C) OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.
243, 5 U.S.C. SEC. 1009(C).  SEE 6 STAN.  L. REV. 531. 

FN10  IN ADDITION TO THE REASONS MENTIONED IN THE TEXT, THOSE CASES
INVOLVING ORDERS, RATHER THAN CERTIFICATES - SEE WESTERN AIR LINES V.
CIVIL AERONAUTICS BOARD, 194 F.2D 211 - ARE DISTINGUISHABLE FOR THE
REASONS STATED IN SEATRAIN, SUPRA, AT 432.  SIMILARLY, THE CASES
INVOLVING CERTIFICATES UNDER THE FEDERAL COMMUNICATIONS ACT ARE
DISTINGUISHABLE FOR THE REASONS STATED BY COMMISSIONER RYAN.  SEE RYAN,
THE REVOCATION OF AN AIRLINE CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY, 15 J. AIR L. & COMM. 377, 384-385. 

FN11  SEE ALSO HANCOCK, FALLACY OF THE TRANSPLANTED CATEGORY, 37
CAN.  B. REV. 535.  ONE MIGHT ARGUE, OF COURSE, THAT JUDICIAL REVIEW
AND ADMINISTRATIVE RECONSIDERATION ARE THE SAME SINCE BOTH THREATEN A
REVERSAL OF THE PRIOR AWARD.  HOWEVER, CONGRESS HAS SHOWN NO INTENT TO
PRECLUDE RECONSIDERATION, EITHER JUDICIAL OR ADMINISTRATIVE, AFTER
NOTICE AND HEARING. 

FN12  ALTHOUGH THE BOARD DID NOT PURPORT TO ISSUE A TEMPORARY
CERTIFICATE AS PRESCRIBED IN SEC. 401(D)(2), PETITIONERS NOW ARGUE THAT
THE BOARD'S ACTION WAS "EQUIVALENT" TO A TEMPORARY CERTIFICATION. 
HOWEVER, WE DO NOT FIND THIS PROPOSITION PERSUASIVE.  AS STATED IN THE
TEXT, SUPRA, WE THINK THAT THE BOARD MUST BOW TO THE STATUTORY
PROCEDURE AND CANNOT TAKE SHORT CUTS.  SEE NOTE 15, INFRA.  MOREOVER,
THE MOST NATURAL READING OF SEC.  401(D)(2) - WHICH SAYS THAT TEMPORARY
CERTIFICATES MAY BE ISSUED FOR "LIMITED PERIODS" - IS THAT CONGRESS WAS
AUTHORIZING THE BOARD TO ISSUE CERTIFICATES RUNNING UNTIL A SPECIFIED
DATE.  ONE REASON FOR THIS CONSTRUCTION IS OBVIOUS; IF A TEMPORARY
CERTIFICATE HAD UNLIMITED DURATION, ONLY SUBJECT TO IMMEDIATE
REVOCATION WHEN THE BOARD GOT AROUND TO CONSIDERING VARIOUS OBJECTIONS,
IT MIGHT PLAY HAVOC WITH THE ABILITY OF THE CARRIER TO ACCEPT ADVANCE
RESERVATIONS.  JUST SUCH A CONTENTION WAS MADE BY DELTA BEFORE THE
BOARD IN ITS PETITION FOR A STAY OF THE BOARD'S MAY 7, 1959, ORDER ON
RECONSIDERATION.  DELTA POINTED OUT: 

"IT IS A FACT THAT SCHEDULES FOR MAY AND JUNE, AND TIMETABLES SHOWING
THIS EARLY MORNING CHICAGO-INDIANAPOLIS-EVANSVILLE AND EVANSVILLE
INDIANAPOLIS-CHICAGO SERVICE, HAVE BEEN RELEASED TO THE PUBLIC AND MANY
RESERVATIONS HAVE BEEN BOOKED FOR THESE MONTHS.  FURTHERMORE, PILOT
BIDDING PROCEDURES AND PROBLEMS INVOLVING EQUIPMENT ROTATION PROHIBIT
THE IMMEDIATE CANCELLATION OF THIS FLIGHT ON SHORT NOTICE." 

FN13  IT APPEARS CLEAR, AND THE BOARD DOES NOT DISAGREE, THAT THE
"HEARING" SPECIFIED IN SEC. 401(G) MEANS A "HEARING" PRIOR TO
DECISION.  AND, THE BOARD DOES NOT CONTEND THAT THIS REQUIREMENT COULD
HAVE BEEN SATISFIED BY THE ALLOWANCE OF A HEARING AFTER THE DECISION ON
RECONSIDERATION WAS HANDED DOWN.  THIS COURSE OF ACTION SEEMS WISE
SINCE (1) IT IS GENERALLY ACCEPTED ON BOTH PRINCIPLE AND AUTHORITY THAT
A HEARING AFTER DECISION, ALTHOUGH PERMISSIBLE IN SPECIAL
CIRCUMSTANCES, IS NOT THE EQUIVALENT OF A PREDETERMINATION HEARING,
SEE, E.G., GELHORN AND BYSE, ADMINISTRATIVE LAW, 774; (2) IT IS NOT
ENTIRELY CLEAR THAT DELTA COULD HAVE PROCURED A HEARING AFTER THE
BOARD'S DECISION.  DELTA SOUGHT A STAY OF THE BOARD'S MAY 7 ORDER UNTIL
AFTER THE GREAT LAKES LOCAL SERVICE INVESTIGATION CASE WAS DECIDED,
PRESUMABLY WITH A VIEW TO INTRODUCING FURTHER EVIDENCE ON THE PRESENT
POINT IN THAT CASE; THE REQUEST FOR A STAY WAS DENIED. 

FN14  SINCE KANSAS CITY, THE BOARD HAS RECONSIDERED AN EFFECTIVE
AWARD ON THREE OCCASIONS.  UNITED WESTERN, ACQUISITION OF AIR CARRIER
PROPERTY, 11 C.A.B. 701; SERVICE TO PHOENIX CASE, ORDER E-12039 (1957);
SOUTH CENTRAL AREA LOCAL SERVICE CASE, ORDER E-14219 (1959).  UNITED
WESTERN DID NOT INVOLVE A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY AND, THUS, HAS NO RELEVANCE.  SEE NOTE 10, SUPRA. SERVICE TO
PHOENIX INVOLVED A DENIAL OF RECONSIDERATION EXCEPT ON ONE POINT, WHICH
MIGHT ARGUABLY BE TERMED THE CORRECTION OF INADVERTENT ERROR.  SEE NOTE
7, SUPRA.  SOUTH CENTRAL DID INVOLVE THE ALTERATION OF A CERTIFICATED
CARRIER'S RIGHTS.  AS STATED, THE PRESENT POINT WAS NOT RAISED IN ANY
OF THESE THREE CASES. 

FN15 THE POTENTIALLY DISTINGUISHING FEATURE ABOUT SEATRAIN IS THAT
THE COURT'S HOLDING MAY REST ON AN ALTERNATE GROUND - VIZ.:  THAT THE
COMMISSION HAD NO POWER TO IMPOSE THE CONDITIONS IT DID IN THE FIRST
INSTANCE.  HOWEVER, SEATRAIN CANNOT BE DISTINGUISHED ON THE GROUNDS
THAT THE COURT SAID "THE CERTIFICATE, WHEN FINALLY GRANTED AND THE TIME
FIXED FOR REHEARING HAS PASSED, IS NOT SUBJECT TO REVOCATION IN WHOLE
OR IN PART EXCEPT AS SPECIFICALLY AUTHORIZED  ...  ."  THE POINT IS
THAT, UNDER THE WATER CARRIER ACT, THE COMMISSION HAD EXPRESS AUTHORITY
TO ENTERTAIN PETITIONS FOR RECONSIDERATION AT ANY TIME.  SEE 49 U.S.C.
SEC. 916(A), INCORPORATING 49 U.S.C. SEC. 17(6) AND (7).   THEREFORE,
IT IS CLEAR THAT THE COMMISSION IN SEATRAIN COULD HAVE REACHED WITH
IMPUNITY THE RESULT IT WANTED TO REACH BY FOLLOWING THE PROCEDURES SET
OUT BY CONGRESS.  THE FORCE OF THE SEATRAIN DECISION IS, THEN, THAT THE
COMMISSIONS AND BOARDS MUST FOLLOW SCRUPULOUSLY THE STATUTORY
PROCEDURES BEFORE THEY CAN ALTER EXISTING OPERATIONS AND THAT ARGUMENTS
TO THE EFFECT THAT "THIS IS JUST ANOTHER WAY OF DOING IT" WILL NOT
PREVAIL. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE HARLAN JOIN, DISSENTING. 

THIS IS AN AIRLINE ROUTE PROCEEDING BROUGHT BEFORE THE CIVIL
AERONAUTICS BOARD.  THE CASE INVOLVES THE EFFECT UPON THE PROCEEDING,
AND HENCE UPON A CERTIFICATE OF CONVENIENCE AND NECESSITY ORDERED TO BE
ISSUED THEREIN, OF A TIMELY MOTION FOR RECONSIDERATION. 

SPECIFICALLY, THE QUESTION PRESENTED IS WHETHER, IN THE LIGHT OF THE
PROVISIONS OF SECS. 401(F) AND 401(G) OF THE FEDERAL AVIATION ACT,
(FN1) THE BOARD, BY ALLOWING ITS CERTIFICATE TO BECOME "EFFECTIVE,"
NOTWITHSTANDING A TIMELY FILED AND UNRULED MOTION FOR RECONSIDERATION,
LOST ALL POWER TO GRANT THE MOTION AND ACCORDINGLY TO MODIFY ITS ORDER
AND THE RESULTING CERTIFICATE. 

THIS CASE IS BUT A FACET OF A MULTI-PARTY, HIGHLY COMPLEX AND
PROTRACTED ROUTE PROCEEDING, KNOWN AS THE "GREAT LAKES-SOUTHEAST
SERVICE CASE," COMMENCED BEFORE THE CIVIL AERONAUTICS BOARD IN MAY
1955.  IT INVOLVED, "PREDOMINANTLY," THE "LONG-HAUL" SERVICE NEEDS OF
AN AREA EXTENDING ROUGHLY BETWEEN THE GREAT LAKES AND FLORIDA. 
NUMEROUS TRUNKLINE CARRIERS SOUGHT NEW OR ADDITIONAL OPERATING RIGHTS
IN THAT AREA.  THE BOARD WAS ALSO CONFRONTED WITH A NUMBER OF PETITIONS
BY LOCAL CARRIERS FOR AUTHORITY TO PROVIDE NEW OR IMPORVED SHORT-HAUL
SERVICE BETWEEN CERTAIN INTERMEDIATE CITIES IN THAT AREA.  IN AN EFFORT
TO KEEP THE PROCEEDING WITHIN MANAGEABLE BOUNDS, THE BOARD DECLINED TO
CONSOLIDATE THOSE SHORT-HAUL PETITIONS WITH THIS CASE, AND, INSTEAD,
DIRECTED THE INSTITUTION OF A SEPARATE PROCEEDING (GREAT LAKES LOCAL
SERVICE INVESTIGATION) FOR THEIR RESOLUTION, BUT IT DID ANNOUNCE THAT,
TO MAKE SURE THAT THIS SEPARATION WOULD NOT DEPRIVE THEM OF AN
OPPORTUNITY TO BE HEARD IN PROTECTION OF THEIR RIGHTS, THE LOCAL
SERVICE CARRIERS WOULD BE PERMITTED TO INTERVENE IN THIS CASE. 

AS ONE OF THE MANY CONTENDING TRUNKLINE CARRIERS, RESPONDENT, DELTA
AIR LINES, INC., PETITIONED FOR AUTHORITY (1) TO EXTEND AN EXISTING
ROUTE NORTHWESTERLY TO PROVIDE SERVICE FROM MIAMI TO DETROIT, AND (2)
TO ADD INDIANAPOLIS AND LOUISVILLE AS INTERMEDIATE POINTS ON ITS
EXISTING CHICAGO-TO-MIAMI ROUTE.  PETITIONER, LAKE CENTRAL AIRLINES,
INC., A LOCAL OR SHORT-HAUL CARRIER OPERATING A LINE BETWEEN CHICAGO
AND INDIANAPOLIS, AND ALSO SERVING LOUISVILLE, INTERVENED TO OBJECT TO
THE DELTA PETITION UNLESS ITS PROPOSED NEW SERVICE TO INDIANAPOLIS AND
LOUISVILLE BE RESTRICTED TO NORTHBOUND FLIGHTS ORIGINATING, AND TO
SOUTHBOUND FLIGHTS TERMINATING, AT OR SOUTH OF ATLANTA.  UPON THIS
ISSUE, LAKE CENTRAL OFFERED EVIDENCE THAT IT WOULD SUFFER INJURY AND
DAMAGE, THROUGH DIVERSION OF ITS LOCAL TRAFFIC, BY THE PROPOSED NEW
DELTA SERVICE UNLESS IT BE SO RESTRICTED. 

ON SEPTEMBER 30, 1958, THE BOARD FILED ITS OPINION AND ORDER IN
WHICH, AMONG OTHER THINGS, IT AUTHORIZED DELTA TO ADD INDIANAPOLIS AND
LOUISVILLE AS INTERMEDIATE POINTS ON ITS CHICAGO-TO-MIAMI ROUTE,
WITHOUT IMPOSING THE RESTRICTIONS THAT LAKE CENTRAL HAD ASKED. 
CONSISTENTLY WITH ITS CUSTOM, THE BOARD STATED IN ITS ORDER THAT THE
CERTIFICATE THEREBY AUTHORIZED TO DELTA WOULD BECOME EFFECTIVE ON THE
60TH DAY AFTER ENTRY OF THE ORDER (NOVEMBER 29). 

WITHIN THE 30 DAYS ALLOWED BY THE BOARD'S RULE FOR THE FILING OF A
MOTION FOR RECONSIDERATION, (FN2) LAKE CENTRAL FILED WITH THE BOARD ON
OCTOBER 31, 1958, ITS MOTION FOR RECONSIDERATION, ELABORATING THE
GROUNDS IT HAD ASSERTED AND SUPPORTED WITH EVIDENCE, IN OPPOSITION TO
DELTA'S PETITION.  IT ALSO ASKED IN THAT MOTION THAT THE EFFECTIVE DATE
OF THE DELTA CERTIFICATE BE STAYED PENDING DECISION BY THE BOARD OF THE
MOTION FOR RECONSIDERATION.    ON NOVEMBER 28, 1958, ONE DAY PRIOR TO
THE DATE UPON WHICH, AS STATED IN THE BOARD'S ORDER OF SEPTEMBER 30,
THE DELTA CERTIFICATE WOULD BECOME EFFECTIVE, THE BOARD FILED A LENGTHY
MEMORANDUM AND ORDER IN WHICH IT DENIED LAKE CENTRAL'S REQUEST (AND
ALSO - WITH ONE EXCEPTION NOT MATERIAL HERE - THE SIMILAR REQUESTS OF
OTHERS) FOR A STAY OF THE EFFECTIVE DATE OF THE DELTA CERTIFICATE UNTIL
AFTER THE BOARD HAD DECIDED LAKE CENTRAL'S MOTION FOR RECONSIDERATION. 
IN THAT ORDER, THE BOARD EXPRESSED ITS VIEW THAT "THE PARTIES HAD NOT
MADE A SUFFICIENT SHOWING OF PROBABLE LEGAL ERROR OR ABUSE OF
DISCRETION" TO WARRANT THE ISSUANCE OF A STAY, AND THAT, IN VIEW OF THE
APPROACHING PEAK WINTER SEASON, THE "NEW SERVICES TO FLORIDA WERE
IMMEDIATELY REQUIRED." 

THEN, TURNING TO THE MOTIONS FOR RECONSIDERATION, THE BOARD SAID IN
THAT ORDER THAT, "BECAUSE OF THE DETAILED MATTERS RAISED IN THE
PETITIONS FOR RECONSIDERATION, IT WOULD NOT BE POSSIBLE TO FINALLY
DISPOSE OF THEM UNTIL AFTER NOVEMBER 29," BUT THE BOARD PROMPTLY WOULD
"ADDRESS ITSELF TO THE MERITS OF THE PETITIONS FOR RECONSIDERATION, AND
ITS ORDER DEALING WITH THOSE MATTERS WOULD ISSUE AT A LATER DATE."  IT
THUS AND OTHERWISE MADE CLEAR THAT ITS DENIAL OF THE STAYS WAS NOT
INTENDED TO BE "IN ANY WAY PREJUDICIAL TO THE LEGAL RIGHTS OF THOSE
PARTIES SEEKING RECONSIDERATION."  IT CONCLUDED:  "NOTHING IN THE
PRESENT ORDER FORECLOSES THE BOARD FROM FULL AND COMPLETE CONSIDERATION
OF THE PENDING PETITIONS FOR RECONSIDERATION ON THEIR MERITS." 

THEREAFTER, ON MAY 7, 1959, THE BOARD GRANTED LAKE CENTRAL'S PETITION
FOR RECONSIDERATION AND ACCORDINGLY ENTERED ITS FINAL ORDER RESTRICTING
DELTA'S SERVICE OF INDIANAPOLIS AND LOUISVILLE TO NORTHBOUND FLIGHTS
ORIGINATING, AND TO SOUTHBOUND FLIGHTS TERMINATING, AT OR SOUTH OF
ATLANTA; BUT THE BOARD DID SAY IN THAT ORDER THAT "IF, AFTER DECIDING
THE ISSUES PRESENTED IN THE GREAT LAKES LOCAL SERVICE CASE, WE CONCLUDE
THAT THE LONG-HAUL RESTRICTIONS ARE NOT REQUIRED, WE WILL HAVE FULL
FREEDOM TO REMOVE THEM AT THAT TIME."  IT IS THIS ORDER THAT GIVES RISE
TO THE PRESENT CONTROVERSY. 

ON DELTA'S APPEAL FROM THAT ORDER, THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT REVERSED.  280 F.2D 43.  IT HELD THAT,
NOTWITHSTANDING THE TIMELY FILED AND UNRULED MOTION FOR
RECONSIDERATION, "ONCE THE BOARD ALLOWED THE CERTIFICATE TO BECOME
EFFECTIVE," IT LOST ALL POWER THEREAFTER TO GRANT THE MOTION AND
ACCORDINGLY TO MODIFY ITS ORDER AND THE RESULTING CERTIFICATE, AND THAT
"IT IS ONLY IN A SEPARATE AND PLENARY PROCEEDING SATISFYING THE
REQUIREMENTS OF SECTION 401(G) THAT AN EFFECTIVE CERTIFICATE
AUTHORIZING UNRESTRICTED SERVICE MAY BE MODIFIED BY SUBSEQUENTLY
IMPOSED RESTRICTIONS."  280 F.2D, AT 48.  BECAUSE OF THE IMPORTANCE OF
THE QUESTION INVOLVED TO THE PROPER ADMINISTRATION OF THE ACT, WE
BROUGHT THE CASE HERE.  364 U.S. 917, 918. 

THE COURT NOW AFFIRMS THAT JUDGMENT.  IT DOES SO UPON GROUNDS WHICH,
I AM BOUND TO SAY, WITH ALL RESPECT, SEEM TO ME TO BE SPURIOUS AND
LEGALLY INDEFENSIBLE, AS I SHALL ENDEAVOR TO SHOW. 

ALTHOUGH THE FEDERAL AVIATION ACT DOES NOT EXPRESSLY PROVIDE FOR
MOTIONS FOR RECONSIDERATION BY THE BOARD OF ITS ORDERS, IT IS CLEAR,
AND INDEED IT IS AGREED BY THE PARTIES, THAT THE BOARD HAS POWER TO
PROVIDE FOR, AND TO ENTERTAIN, SUCH MOTIONS, FOR "THE POWER TO
RECONSIDER IS INHERENT IN THE POWER TO DECIDE."  ALBERTSON V. FEDERAL
COMMUNICATIONS COMM'N, 87 U.S. APP. D.C. 39, 41, 182 F.2D 397, 399. 
SEE ALSO BRANIFF AIRWAYS V. CIVIL AERONAUTICS BOARD, 79 U.S. APP. D.C.
341, 147 F.2D 152. 

PURSUANT TO THAT POWER, THE BOARD ADOPTED ITS RULE OF PRACTICE
PRESCRIBING, IN PERTINENT PART, THAT "A PETITION FOR RECONSIDERATION,
REHEARING OR REARGUMENT MAY BE FILED BY ANY PARTY TO A PROCEEDING
WITHIN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF A FINAL ORDER BY
THE BOARD IN SUCH PROCEEDING  ...  ."  (FN3)  IT IS ADMITTED THAT LAKE
CENTRAL FILED ITS MOTION FOR RECONSIDERATION WITHIN THE 30 DAYS ALLOWED
BY THAT RULE. 

UNDER EVERY RELEVANT REPORTED DECISION, SAVE ONE TO BE LATER NOTED, A
TIMELY MOTION FOR RECONSIDERATION, BEING AN AUTHORIZED AND APPROPRIATE
STEP IN THE PROCEEDING, "OPERATES TO RETAIN THE BOARD'S AUTHORITY OVER
THE ORIGINAL ORDER," WATERMAN S.S. CORP. V. CIVIL AERONAUTICS BOARD,
159 F.2D 828, 829 (C.A. 5TH CIR.), "REOPENS THE CASE,"  BLACK RIVER
VALLEY BROADCASTS V. MCNINCH, 69 APP. D.C. 311, 316, 101 F.2D 235, 240,
AND PREVENTS THE "PROPOSED DECISION" - WHICH, AT THAT STAGE, IS ALL IT
IS (WATERMAN CASE, SUPRA, AT 828) - FROM BECOMING "FINAL."  OUTLAND V.
CIVIL AERONAUTICS BOARD, 109 U.S. APP. D.C. 193, 284 F.2D 224, 227. 
THE PROCEEDING BEING THUS HELD OPEN BY THE MOTION, AND THE BOARD HAVING
BOTH THE POWER AND THE DUTY TO DECIDE IT, IT WOULD SEEM TO BE
FUNDAMENTAL THAT THE BOARD HAS POWER TO DECIDE IT EITHER WAY -
INCLUDING, OF COURSE, THE "POWER TO GRANT IT," ENTERPRISE CO. V.
FEDERAL COMMUNICATIONS COMM'N, 97 U.S. APP. D.C. 374, 378, 231 F.2D
708, 712, AS IT DID HERE. 

IT SEEMS NECESSARILY TRUE, AND IS WELL SETTLED BY THE CASES, THAT
"WHERE A MOTION FOR REHEARING IS IN FACT FILED THERE IS NO FINAL ACTION
UNTIL THE REHEARING IS DENIED  ...  FOR THERE IS ALWAYS A POSSIBILITY
THAT THE ORDER COMPLAINED OF WILL BE MODIFIED IN A WAY WHICH RENDERS
JUDICIAL REVIEW UNNECESSARY," OUTLAND V. CIVIL AERONAUTICS BOARD, 109
U.S. APP. D.C., AT 93, 284 F.2D, AT 227, AND "ALTHOUGH THE MOTION DID
NOT  ...  SUPERSEDE OR SUSPEND THE ORDER, IT DID OPERATE TO RETAIN THE
BOARD'S AUTHORITY OVER THE ORDER, SO THAT THE ORDER OVERRULING THE
MOTION SHOULD BE TAKEN AS THE FINAL  ...  ORDER INTENDED BY THE STATUTE
TO START THE RUNNING OF THE SIXTY-DAY PERIOD FOR JUDICIAL REVIEW." 
WATERMAN S.S. CORP. V. CIVIL AERONAUTICS BOARD, SUPRA, AT 829.  IT
NECESSARILY FOLLOWS THAT, IF A TIMELY MOTION FOR RECONSIDERATION IS
PENDING BEFORE THE BOARD, ITS "PROPOSED DECISION" (ID., AT 828) HAS
"NOT BECOME FINAL IN THE SENSE THAT IT IS NO LONGER SUBJECT TO CHANGE
UPON RECONSIDERATION," ENTERPRISE CO. V. FEDERAL COMMUNICATIONS COMM'N,
97 U.S. APP. D.C., AT 378, 231 F.2D, AT 712, AND "JURISDICTION OVER
THAT ORDER REMAINS WITH THE BOARD UNTIL THE TIME FOR APPEAL HAS
EXPIRED, AND THAT TIME IS TOLLED BY AN APPLICATION FOR REHEARING." 
(IBID.)  HENCE, "NO FINAL RIGHTS ACCRUED TO DELTA AS A RESULT OF THE
ORDER ORIGINALLY GRANTING ITS PERMIT," BLACK RIVER VALLEY BROADCASTS V.
MCNINCH, 69 APP. D.C., AT 316, 101 F.2D, AT 240.  SEE ALSO, E.G.,
BRANIFF AIRWAYS V. CIVIL AERONAUTICS BOARD, SUPRA; ALBERTSON V. FEDERAL
COMMUNICATIONS COMM'N, SUPRA; WESTERN AIR LINES V.  CIVIL AERONAUTICS
BOARD, 194 F.2D 211 (C.A. 9TH CIR.); AND BUTTERFIELD THEATRES V.
FEDERAL COMMUNICATIONS COMM'N, 99 U.S. APP. D.C. 71, 237 F.2D 552. 

"THERE IS NO DOUBT UNDER THE DECISIONS AND PRACTICE IN THIS COURT
THAT WHERE A MOTION FOR A NEW TRIAL IN A COURT OF LAW, OR A PETITION
FOR A REHEARING IN A COURT OF EQUITY, IS DULY AND SEASONABLY FILED, IT
SUSPENDS THE RUNNING OF THE TIME FOR TAKING  ...  AN APPEAL, AND THAT
THE TIME WITHIN WHICH A PROCEEDING TO REVIEW MUST BE INITIATED BEGINS
FROM THE DATE OF THE DENIAL OF  ...  THE MOTION  ...  ,"  MORSE V.
UNITED STATES, 270 U.S. 151, 153-154, AND "THIS IS ALSO TRUE IN
ADMINISTRATIVE PROCEEDINGS,"  BLACK RIVER VALLEY BROADCASTS V. MCNINCH,
69 APP. D.C., AT 316, 101 F.2D, AT 240.  (FN4) 

THE ONLY REPORTED DECISION TO THE CONTRARY IS CONSOLIDATED FLOWERS
SHIPMENTS V. CIVIL AERONAUTICS BOARD, 205 F.2D 449 (C.A. 9TH CIR.).  IT
WAS THERE HELD THAT THE TIME WITHIN WHICH A PETITION FOR REVIEW MUST BE
FILED RUNS FROM THE DATE OF THE BOARD'S DECISION, NOT FROM THE DATE ON
WHICH IT OVERRULED A TIMELY MOTION FOR RECONSIDERATION; AND, INASMUCH
AS THE PETITION FOR REVIEW HAD NOT BEEN FILED WITHIN THE FORMER PERIOD,
THE COURT DISMISSED THE PETITION AS UNTIMELY.  RECOGNIZING THAT THIS
RESULT WAS CONTRARY TO ITS PRIOR DECISIONS, (FN5) THE COURT THOUGHT IT
WAS REQUIRED TO SO HOLD BECAUSE OF THE LAST SENTENCE OF SEC. 10(C) OF
THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SEC. 1009(C), SAYING THAT,
FOR THE PURPOSES OF APPEAL, "AGENCY ACTION OTHERWISE FINAL SHALL BE
FINAL FOR THE PURPOSES OF THIS SUBSECTION WHETHER OR NOT THERE HAS BEEN
PRESENTED OR DETERMINED ANY APPLICATION  ...  FOR ANY FORM OF
RECONSIDERATION  ...  ."  THE FALLACY OF THAT REASONING WAS COMPLETELY
EXPOSED AND SOUNDLY REJECTED IN OUTLAND V. CIVIL AERONAUTICS BOARD,
SUPRA.  (FN6)  AND ON MAY 1, 1961, THE NINTH CIRCUIT ITSELF
SPECIFICALLY OVERRULED THAT CASE.  SAMUEL B. FRANKLIN & CO. V.
SECURITIES EXCHANGE COMMISSION, 290 F.2D 719. 

THERE IS ONLY ONE REPORTED DECISION, INVOLVING PROCEDURES BEFORE THE
CIVIL AERONAUTICS BOARD, THAT HAS PRESENTED THE PRECISE QUESTION WE
HAVE HERE.  IT IS FRONTIER AIRLINES, INC., V. CIVIL AERONAUTICS BOARD,
104 U.S. APP. D.C. 78, 259 F.2D 808.  THERE, JUST AS HERE, AFTER A
BOARD CERTIFICATE HAD BEEN PERMITTED TO BECOME "EFFECTIVE," THE BOARD
GRANTED AN EARLIER AND TIMELY FILED MOTION FOR RECONSIDERATION AND
REVISED THE CERTIFICATE ACCORDINGLY.  IT WAS CONTENDED THAT THE
REVISION OF THE ORDER AND, HENCE, ALSO OF THE CERTIFICATE, SO MADE, WAS
"A NULLITY BECAUSE IT WAS RENDERED  ...  AFTER THE CERTIFICATE  ...
HAD BECOME EFFECTIVE."  (104 U.S. APP. D.C., AT 80, 259 F.2D, AT 810.) 
THAT CONTENTION WAS THERE SOUNDLY REJECTED. 

IT THEREFORE SEEMS QUITE CLEAR TO ME THAT, UNDER HISTORIC LEGAL
PROCEDURES AND ALL, SAVE ONE, OF THE NUMEROUS RELEVANT DECISIONS, THE
TIMELY FILING OF THE MOTION FOR RECONSIDERATION - BEING A LEGALLY
AUTHORIZED STEP IN THE PROCEEDING - KEPT THE PROCEEDING OPEN AND
CONTINUING; THAT HAVING THE POWER, AS WELL AS THE DUTY, TO DECIDE THAT
MOTION, THE BOARD HAD POWER TO GRANT IT, AS IT DID, AND THUS,
NECESSARILY, ACCORDINGLY TO REVISE ITS EARLIER DECISION - WHICH, UNTIL
THEN, WAS ONLY "A PROPOSED DECISION" (WATERMAN CASE, SUPRA, AT 828) -
AND THAT, INASMUCH AS THE BOARD SUSTAINED THAT MOTION, THE EARLIER
"PROPOSED DECISION" NEVER DID BECOME THE FINAL DECISION IN THE
PROCEEDING. 

INASMUCH AS ALL OF THE REPORTED CASES, SAVE THE DISCREDITED AND NOW
OVERRULED CONSOLIDATED FLOWERS CASE, SUPRA, ARE AGAINST IT, DELTA IS
COMPELLED TO RELY ALMOST ENTIRELY ON ITS CLAIM THAT THE "PLAIN
LANGUAGE" OF SEC. 401(F) DEPRIVES THE BOARD OF POWER, ONCE IT HAS
ALLOWED A CERTIFICATE TO BECOME "EFFECTIVE," TO REVISE ITS INITIAL
DECISION AND THE RESULTING CERTIFICATE IN PURSUANCE OF AN EARLIER AND
TIMELY FILED MOTION FOR RECONSIDERATION; AND THAT, ONCE IT HAS BEEN SO
PERMITTED TO BECOME "EFFECTIVE," THE CERTIFICATE MAY BE MODIFIED OR
ALTERED ONLY BY A SEPARATE AND INDEPENDENT PLENARY PROCEEDING UNDER
SEC. 401(G). 

THE OBVIOUS DEFECTS IN THAT ARGUMENT ARE THAT (1) UNDER SEC. 401(F),
THE "PROPOSED DECISION" (WATERMAN CASE, SUPRA, AT 228) REMAINED SUBJECT
TO REVISION BY THE BOARD IN RESPONSE TO THE TIMELY FILED MOTION FOR
RECONSIDERATION, AND (2) THE ARGUMENT IGNORES THE FACT THAT SEC. 401(G)
APPLIES ONLY TO PROCEEDINGS TO ALTER, AMEND, SUSPEND OR REVOKE A
CERTIFICATE IN EXISTENCE AFTER THE AUTHORIZATION PROCEEDING HAS BEEN
FULLY CONCLUDED AND FINALLY ENDED - I.E., AFTER ALL TIMELY FILED
MOTIONS FOR RECONSIDERATION HAVE BEEN DENIED, AND THE TIME FOR APPEAL
HAS EXPIRED WITHOUT AN APPEAL BEING TAKEN OR, IF AN APPEAL WAS TAKEN,
THE BOARD'S DECISION HAS BEEN FINALLY AFFIRMED. 

SURELY IT CANNOT BE DOUBTED THAT, IF THE BOARD, INSTEAD OF GRANTING
IT, HAD DENIED THE MOTION FOR RECONSIDERATION, THE COURT OF APPEALS, ON
JUDICIAL REVIEW, OR THIS COURT ON CERTIORARI, COULD REVERSE THE BOARD'S
DECISION AND REMAND THE CASE TO THE BOARD WITH DIRECTIONS TO GRANT THE
MOTION FOR RECONSIDERATION.  IT IS CERTAIN THAT SUCH A JUDGMENT WOULD
OPERATE NOT ONLY ON THE BOARD'S DECISION BUT, AS WELL, ON ITS
"EFFECTIVE" CERTIFICATE.  IF THE BOARD HAS POWER, WHEN THUS DIRECTED BY
THE JUDGMENT OF A REVIEWING COURT, TO REVISE, MODIFY OR VACATE ITS
ERRONEOUS DECISION AND ITS RESULTING CERTIFICATE, EVEN THOUGH
"EFFECTIVE," WHY SHOULD THE RESULT BE DIFFERENT IF THE BOARD, WITHOUT
SUCH JUDICIAL DIRECTION, NOTES ITS ERROR, GRANTS THE TIMELY FILED AND
PENDING MOTION FOR RECONSIDERATION, AND ACCORDINGLY REVISES ITS
DECISION AND THE RESULTING CERTIFICATE? 

APART FROM THE DISCREDITED AND NOW OVERRULED NINTH CIRCUIT CASE OF
CONSOLIDATED FLOWERS SHIPMENTS V. CIVIL AERONAUTICS BOARD, SUPRA, DELTA
CITES NO CASE THAT INVOLVES THE EFFECT UPON A BOARD DECISION OF A
TIMELY FILED MOTION FOR RECONSIDERATION, OR OF A BOARD-REVISED ORDER
MADE IN PURSUANCE OF SUCH A MOTION, OR THAT IN ANY WAY SUPPORTS IT.
ITS CLAIM OF SUPPORT BY UNITED STATES V. SEATRAIN LINES, 329 U.S. 424;
WATSON BROS. TRANSPORTATION CO. V. UNITED STATES, 132 F. SUPP. 905; AND
SMITH BROS. REVOCATION OF CERTIFICATE, 33 M.C.C.  465, IS WHOLLY
UNFOUNDED.  NONE OF THOSE CASES INVOLVED OR DEALT WITH THE QUESTION WE
HAVE HERE.  NONE OF THEM INVOLVED OR DEALT WITH ANY QUESTION RESPECTING
THE EFFECT OF A TIMELY FILED MOTION FOR RECONSIDERATION UPON AN
ADMINISTRATIVE ORDER.  TO THE CONTRARY, IN EACH OF THEM THE
ADMINISTRATIVE PROCEEDING HAD LONG SINCE FINALLY ENDED - I.E., ALL
TIMELY FILED MOTIONS FOR RECONSIDERATION HAD BEEN DENIED, THE TIME FOR
JUDICIAL REVIEW HAD EXPIRED, AND THE PROCEEDING WAS IN ALL RESPECTS
CLOSED. 

THE ONLY RELEVANT STATEMENT IN THE SEATRAIN CASE, SUPRA, IS SQUARELY
OPPOSED TO DELTA'S POSITION, NAMELY, "THE CERTIFICATE, WHEN FINALLY
GRANTED AND THE TIME FIXED FOR REHEARING IT HAS PASSED, IS NOT SUBJECT
TO REVOCATION IN WHOLE OR IN PART EXCEPT AS SPECIFICALLY AUTHORIZED BY
CONGRESS (I.E., IN AN INDEPENDENT PLENARY PROCEEDING)."  329 U.S., AT
432, 433.  HERE, "THE TIME FIXED FOR REHEARING HAD NOT PASSED," BUT,
INSTEAD, AN APPROPRIATE MOTION FOR RECONSIDERATION HAD BEEN TIMELY
FILED AND WAS PENDING.  SURELY, THE BOARD NOT ONLY HAD POWER, BUT ALSO
A DUTY, TO RULE ON THAT MOTION AND, IF IT FOUND IT MERITORIOUS, TO
SUSTAIN IT, AND ACCORDINGLY TO REVISE ITS DECISION AND RESULTING
CERTIFICATE.    THE WATSON CASE, SUPRA, HAS NO RELEVANCE WHATEVER TO
THIS ONE.  IN THE SMITH CASE, SUPRA, THE COMMISSION WAS CAREFUL TO
POINT OUT THAT "  ...  THE CERTIFICATE MARKS THE END OF THE
PROCEEDINGS, JUST AS THE ENTRY OF A FINAL JUDGMENT OR DECREE MARKS THE
END OF A COURT PROCEEDING  ...  ."  33 M.C.C., AT 472.  IT IS CERTAIN
THAT "A PROPOSED DECISION" (WATERMAN CASE, SUPRA, AT 228) OF A COURT
DOES NOT, WHILE A TIMELY FILED MOTION FOR NEW TRIAL, REHEARING OR
RECONSIDERATION IS PENDING, END THE PROCEEDING, BUT IT IS THE DENIAL OF
THE MOTION, AND EXPIRATION OF THE TIME TO APPEAL, THAT "MARKS THE END
OF A COURT PROCEEDING"; AND "THIS IS ALSO TRUE IN ADMINISTRATIVE
PROCEEDINGS."  BLACK RIVER VALLEY BROADCASTS V. MCNINCH, 69 APP. D.C.,
AT 316, 101 F.2D, AT 240. 

CONVENIENCE AND NECESSITY "FOR A LIMITED PERIOD OF TIME UNDER
SUBSECTION (D)(2) OF THAT SECTION."  ALTHOUGH THE BOARD DID NOT
EXPRESSLY SAY, IN ITS ORDER OF SEPTEMBER 30, 1958, THAT THE CERTIFICATE
THEREBY AUTHORIZED TO DELTA WOULD CONTINUE ONLY "FOR A LIMITED PERIOD
OF TIME," IT DID EXPRESSLY POINT OUT IN ITS ORDER OF NOVEMBER 28, 1958,
DENYING LAKE CENTRAL'S MOTION FOR A STAY AND PERMITTING THE DELTA
CERTIFICATE TO BECOME EFFECTIVE, THAT LAKE CENTRAL'S MOTION FOR
RECONSIDERATION WAS STILL PENDING UNDETERMINED, AND THAT IT PROMPTLY
WOULD "ADDRESS ITSELF TO THE MERITS OF THAT PETITION FOR
RECONSIDERATION, AND THAT ITS ORDER DEALING WITH THAT MATTER WOULD
ISSUE AT A LATER DATE."  HENCE, THE DELTA CERTIFICATE, THOUGH THUS
ALLOWED TO BECOME "EFFECTIVE," WAS, IN THE LAW'S REGARD, AS SURELY
"ISSUED FOR THE LIMITED PERIOD OF TIME" EXPIRING WITH THE DATE OF THE
POSSIBLE GRANT OF LAKE CENTRAL'S MOTION FOR RECONSIDERATION, AS IF THAT
LIMITATION HAD BEEN EXPRESSED IN THE BOARD'S AUTHORIZING ORDER AND
CERTIFICATE. 

HERE, AS IN WESTERN AIR LINES V. CIVIL AERONAUTICS BOARD, 194 F.2D,
211, 214 (C.A. 9TH CIR.), DELTA "ACTED WITH ITS EYES OPEN AND AT ITS
OWN RISK.  IT WAS AWARE THAT THE PROCEEDINGS BEFORE THE BOARD HAD NOT
BECOME FINAL, AND WOULD NOT UNTIL THE EXPIRATION OF THE PERIOD OF 30
DAYS WITHIN WHICH PETITIONS FOR RECONSIDERATION MIGHT BE FILED." 

SURELY LAKE CENTRAL'S TIMELY FILED MOTION FOR RECONSIDERATION KEPT
THE WHOLE PROCEEDING OPEN, INCLUDING THE BOARD'S ORDER AND RESULTING
CERTIFICATE, UNTIL THAT MOTION WAS DENIED.  IT WAS NOT DENIED. 
INSTEAD, IT WAS GRANTED, AS SURELY THE BOARD HAD POWER TO DO.
THEREFORE, THE BOARD'S ORIGINALLY "PROPOSED DECISION" NEVER DID BECOME
THE FINAL DECISION IN THE PROCEEDING.  AND WHEN THAT "PROPOSED
DECISION" THUS FELL, THE CERTIFICATE WHICH IT AUTHORIZED, AND WHICH HAD
BEEN PERMITTED TO BECOME TEMPORARILY "EFFECTIVE," NECESSARILY FELL WITH
IT, AS IT WAS ALWAYS SUBJECT TO THE RESULTS OF THAT MOTION. 

IT IS NOT TO BE GAINSAID THAT THE PRACTICE, SOMETIMES, AS HERE,
FOLLOWED BY THE BOARD, OF PERMITTING ROUTE CERTIFICATES TO BECOME
"EFFECTIVE" WHILE NONFRIVOLOUS MOTIONS FOR REHEARING OR RECONSIDERATION
ARE PENDING UNDETERMINED, (FN7) IS PERILOUS BUSINESS AND ONLY RARELY,
IF EVER, IS JUSTIFIED.  BUT IT DOES NOT FOLLOW THAT, ONCE HAVING
PERMITTED A ROUTE CERTIFICATE TO BECOME "EFFECTIVE," THE BOARD HAS LOST
ALL POWER TO DECIDE A PENDING MOTION FOR RECONSIDERATION, AND, IF FOUND
MERITORIOUS, TO GRANT IT, AND THUS ITSELF TO RECTIFY THE ERRORS IN ITS
"PROPOSED DECISION" AND IN THE ROUTE CERTIFICATE THAT WAS THEREBY
ERRONEOUSLY AUTHORIZED. 

FOR THESE REASONS, I THINK THE COURT HAS FALLEN INTO CLEAR ERROR IN
AFFIRMING THE JUDGMENT OF THE COURT BELOW, WHICH, IN MY VIEW, IS
CONTRARY TO THE SETTLED LAW AND SHOULD BE REVERSED. 

FN1  SECTION 401(F) OF THE FEDERAL AVIATION ACT (72 STAT. 755-756, 49
U.S.C. SEC. 1371(F)) PROVIDES, IN RELEVANT PART, AS FOLLOWS: 

"(F)   EACH CERTIFICATE SHALL BE EFFECTIVE FROM THE DATE SPECIFIED
THEREIN, AND SHALL CONTINUE IN EFFECT UNTIL SUSPENDED OR REVOKED AS
HEREAFTER PROVIDED, OR UNTIL THE BOARD SHALL CERTIFY THAT OPERATION
THEREUNDER HAS CEASED OR, IF ISSUED FOR A LIMITED PERIOD OF TIME UNDER
SUBSECTION (D)(2) OF THIS SECTION, SHALL CONTINUE IN EFFECT UNTIL THE
EXPIRATION THEREOF, UNLESS, PRIOR TO THE DATE OF EXPIRATION, SUCH
CERTIFICATE SHALL BE SUSPENDED OR REVOKED AS PROVIDED HEREIN, OR THE
BOARD SHALL CERTIFY THAT OPERATIONS THEREUNDER HAVE CEASED  ...  ." 

PROVIDES, IN RELEVANT PART, AS FOLLOWS: 

"(G)  THE BOARD UPON PETITION OR COMPLAINT OR UPON ITS OWN
INITIATIVE, AFTER NOTICE AND HEARINGS, MAY ALTER, AMEND, MODIFY, OR
SUSPEND ANY SUCH CERTIFICATE, IN WHOLE OR IN PART, IF THE PUBLIC
CONVENIENCE AND NECESSITY SO REQUIRE, OR MAY REVOKE ANY SUCH
CERTIFICATE, IN WHOLE OR IN PART, FOR INTENTIONAL FAILURE TO COMPLY
WITH ANY PROVISION OF THIS TITLE OR ANY ORDER, RULE OR REGULATION
ISSUED HEREUNDER OR ANY TERM, CONDITION, OR LIMITATION OF SUCH
CERTIFICATE  ...  ." 

FN2  SECTION 302.37(A) OF THE RULES OF PRACTICE OF THE CIVIL
AERONAUTICS BOARD, 14 CFR SEC. 302.37(A) (1956 REV. ED.), PROVIDES, IN
RELEVANT PART, AS FOLLOWS: 

"PETITION FOR RECONSIDERATION - (A) TIME FOR FILING.  A PETITION FOR
RECONSIDERATION, REHEARING OR REARGUMENT MAY BE FILED BY ANY PARTY TO A
PROCEEDING WITHIN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF A FINAL
ORDER BY THE BOARD IN SUCH PROCEEDING UNLESS THE TIME IS SHORTENED OR
ENLARGED BY THE BOARD, EXCEPT THAT SUCH PETITION MAY NOT BE FILED WITH
RESPECT TO AN INITIAL DECISION WHICH HAS BECOME FINAL THROUGH FAILURE
TO FILE EXCEPTIONS THERETO.  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 A RECENT REVISION OF ITS RULES, THE BOARD HAS REDUCED THE TIME
WITHIN WHICH A PETITION FOR RECONSIDERATION MAY BE FILED FROM 30 TO 20
DAYS.  SEE 14 CFR SEC. 302.37 (1960 SUPP.). 

49 U.S.C. SEC. 1486(A) PROVIDES THAT DECISIONS OF THE BOARD SHALL BE
SUBJECT TO REVIEW BY THE COURTS OF APPEALS UPON PETITION "FILED WITHIN
SIXTY DAYS AFTER THE ENTRY OF SUCH ORDER," BY ANY PERSON HAVING A
SUBSTANTIAL INTEREST IN THE ORDER. 

FN3  SEE NOTE 2. 

FN4  SEE SAGINAW BROADCASTING CO. V. FEDERAL COMMUNICATIONS COMM'N,
68 APP. D.C. 282, 287, 96 F.2D 554, 559; SOUTHLAND INDUSTRIES, INC., V.
FEDERAL COMMUNICATIONS COMM'N, 69 APP. D.C. 82, 99 F.2D 117; WOODMEN OF
WORLD LIFE INS. ASSN. V. FEDERAL COMMUNICATIONS COMM'N, 69 APP. D.C.
87, 99 F.2D 122; RED RIVER BROADCASTING CO. V. FEDERAL COMMUNICATIONS
COMM'N, 69 APP. D.C. 1, 98 F.2D 282. 

FN5  SEE WESTERN AIR LINES V. CIVIL AERONAUTICS BOARD, 196 F.2D 933
(C.A. 9TH CIR.); SOUTHWEST AIRWAYS CO. V. CIVIL AERONAUTICS BOARD, 196
F.2D 937; WESTERN AIR LINES V. CIVIL AERONAUTICS BOARD, 194 F.2D 211. 

FN6  IN OUTLAND V. CIVIL AERONAUTICS BOARD, SUPRA, THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA EXPOSED THE FALLACY IN,
AND SOUNDLY REJECTED THE REASONING OF, THE CONSOLIDATED FLOWERS CASE,
SUPRA, IN THE FOLLOWING LANGUAGE: 

"THE LEGISLATIVE HISTORY OF 5 U.S.C.A. SEC. 1009(C) INDICATES THAT IT
WAS ADOPTED TO ACHIEVE HARMONY WITH THE HOLDING IN LEVERS V. ANDERSON,
1945, 326 U.S. 219, 66 S. CT. 72, 90 L. ED. 26 TO THE EFFECT THAT A
MOTION FOR REHEARING WAS NOT NECESSARY TO EXHAUST ADMINISTRATIVE
REMEDIES.  HOWEVER, WHILE MAKING JUDICIAL REVIEW AVAILABLE WITHOUT A
MOTION FOR REHEARING, THAT STATUTE DID NOT OPERATE TO REPEAL THE LAW
WITH RESPECT TO FINALITY.  WHERE A MOTION FOR REHEARING IS IN FACT
FILED THERE IS NO FINAL ACTION UNTIL THE REHEARING IS DENIED, AS WE
SAID IN BRANIFF AIRWAYS, INC. V. CIVIL AERONAUTICS BOARD, SUPRA.
REACH FINALITY BY EXHAUSTION OF ADMINISTRATIVE REMEDIES; IT LEAVES THAT
TO EACH LITIGANT'S CHOICE.  BUT WHEN THE PARTY ELECTS TO SEEK A
REHEARING THERE IS ALWAYS A POSSIBILITY THAT THE ORDER COMPLAINED OF
WILL BE MODIFIED IN A WAY WHICH RENDERS JUDICIAL REVIEW UNNECESSARY. 
PRACTICAL CONSIDERATIONS, THEREFORE, DICTATE THAT WHEN A PETITION FOR
REHEARING IS FILED, REVIEW MAY PROPERLY BE DEFERRED UNTIL THIS HAS BEEN
ACTED UPON.  THE CONTRARY RESULT REACHED BY THE NINTH CIRCUIT HAS
CAUSED PARTIES TO FILE SO CALLED 'PROTECTIVE' PETITIONS FOR JUDICIAL
REVIEW WHILE PETITIONS FOR REHEARING BEFORE THE BOARD WERE PENDING.  A
WHOLE TRAIN OF UNNECESSARY CONSEQUENCES FLOWED FROM THIS:  THE BOARD
AND OTHER PARTIES MAY BE CALLED UPON TO RESPOND AND OPPOSE THE MOTION
FOR REVIEW; WHEN THE BOARD ACTS, THE PETITION FOR JUDICIAL REVIEW MUST
BE AMENDED TO BRING THE PETITION UP TO DATE. 

"WE HOLD THAT WHEN A MOTION FOR REHEARING IS MADE, THE TIME FOR
FILING A PETITION FOR JUDICIAL REVIEW DOES NOT BEGIN TO RUN UNTIL THE
MOTION FOR REHEARING IS ACTED UPON BY THE BOARD."  109 U.S. APP. D.C.,
AT 92-93, 284 F.2D, AT 227-228. 

FN7  IN MANY INSTANCES, THE BOARD HAS PERMITTED CERTIFICATES TO
BECOME EFFECTIVE NOTWITHSTANDING A MOTION OR MOTIONS FOR
RECONSIDERATION WERE PENDING UNDETERMINED.  AND IN A NUMBER OF SUCH
CASES, AS HERE, THE BOARD HAS GRANTED SUCH MOTIONS AND ACCORDINGLY
MODIFIED THE "EFFECTIVE" CERTIFICATE.  SEE, E.G., NORTH CENTRAL CASE, 8
C.A.B. 208; CINCINNATI-NEW YORK ADDITIONAL SERVICE, 8 C.A.B. 603;
UNITED-WESTERN, ACQUISITION OF AIR CARRIER PROPERTY, 11 C.A.B. 701;
SERVICE TO PHOENIX CASE, ORDER E-12039 (1957); SOUTH CENTRAL AREA LOCAL
SERVICE CASE, ORDER E-14219 (1959).