F. B. Lee, Administrator of Civil Aeronautics v. Civil Aeronautics Board, Lewis H. Brubaker and Charles E. Olsen, Intervenors

225 F.2d 950

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 1, 1955
• Docket: 12433
• Status: Published

Opinions

EDGERTON, Circuit Judge.

The Administrator of Civil Aeronautics seeks review of the Civil Aeronautics Board’s dismissal of complaints in which he asked the Board to suspend, for violation of Civil Air Regulations, the certificates of certain pilots. Section 1006 (a) of the Civil Aeronautics Act of 1938, as amended,¹ authorizes a court of appeals to review an order of the Board upon petition of “any person disclosing a substantial interest in such order.” Appellant says his responsibility for enforcement of statutory safety provisions and Board regulations gives him this “substantial interest”.

The Civil Aeronautics Act of 1938 created the Civil Aeronautics Authority, consisting of five members,² and empowered it to make and enforce safety regulations.³ The Act also provided that “There shall be in the Authority an Administrator” ⁴ and directed him to “cooperate with the Authority in the administration and enforcement of this Act”.⁵ The Authority named him “Supervisor for the Authority” and delegated to him "“supervisory administrative powers over the Bureau of Safety Regulation”, whose attorneys, employees of the Authority, prosecuted suspension proceedings.

In 1940, Reorganization Plan No. Ill transferred from the Civil Aeronautics Authority to the Administrator, whom it renamed Administrator of Civil Aeronautics, the “functions of aircraft registration and of safety regulation described in Titles V and VI of the Civil Aeronautics Act of 1938, except the functions of prescribing safety standards, rules, and regulations and of suspending and revoking certificates after hearing * * 6 Reorganization Plan No. IV changed the name Civil Aeronautics Authority to Civil Aeronautics Board, transferred the Board for housekeeping purposes to the Department of Commerce, placed the Administrator “under the direction and supervision of the Secretary of Commerce”, and provided that the “Administrator of Civil Aeronautics * * * and the Civil Aeronautics Board * * * shall constitute the Civil Aeronautics Authority within the Department of Commerce.” ⁷

Nothing in the Reorganization Plans diluted the control of the Board, formerly the Authority, over suspension proceedings, or changed the function of the Administrator in such proceedings. His function continued to be like that of administrative prosecutors in other agencies. His only interest, like that of the Board, in suspension proceedings is in promoting air safety by enforcing the Civil Aeronautics Act. Final decision regarding suspension for violation of regulations continues to rest with the Board.

We think it follows that the Administrator is not what the Act means by “any person disclosing a substantial interest” in the Board’s order, and lacks standing to petition for review. The right to review of agency action is usually restricted to persons whom the agency regulates and affects adversely.⁸ When one government agency has been found to have standing to seek review of another government agency’s action, the two agencies have had different interests, e. g., when the government as shipper or consumer challenges an administrative rate order.⁹ We have found no case in which agency action has been reviewed on the application of an official whose function is to prosecute claims in and for the same agency,.. We think the purpose of the present review provision was not to permit litigation between the Administrator and the Board but to allow relief to persons aggrieved by the Board’s actions.

Petition dismissed.

1 . 52 Stat. 1024, 49 U.S.C.A. § 646.

2 . 52 Stat. 980, 49 U.S.C.A. § 421(a).

3 . Title VI; 52 Stat. 1007, 49 U.S.C.A. § 551 et seq.

4 . 52 Stat. 981, 49 U.S.C.A. § 421(b).

5 . 52 Stat. 985, § 301, 49 U.S.C.A. § 451.

6 . See. 7, 54 Stat. 1233, 5 U.S.C.A. § 133t note.

7 . See. 7, 54 Stat. 1235-6, 5 U.S.C.A. § 133t note.

8 . Administrative Procedure Act, § 10(a), 60 Stat. 243, 5 U.S.C.A. § 1009(a).

9 . United States ex rel. Chapman v. Federal Power Commission, 1953, 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918; United States v. Interstate Commerce Commission, 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451; Summerfield v. Civil Aeronautics Board, 1953, 92 U.S.App.D.C. 256, 207 F.2d 207, affirmed 1954, Delta Air Lines v. Summerfield, 347 U.S. 74, 74 S.Ct. 350, 98 L.Ed. 513; Summerfield v. Civil Aeronautics Board, 1953, 92 U.S.App.D.C. 248, 207 F.2d 200, affirmed Western Air Lines v. Civil Aeronautics Board, 1954, 347 U.S. 67, 74 S.Ct. 347, 98 L.Ed. 508; United States v. Public Utilities Commission, 1945, 80 U.S.App.D.C. 227, 151 F.2d 609.