Civil Aeronautics Board v. American Air Transport/Opinion of the Court

The certificate is dismissed. National Labor Relations Board v. White Swan Co., 1941, 313 U.S. 23, 61 S.Ct. 751, 85 L.Ed. 1165; Lowden v. Northwestern National Bank & Trust Co., 1936, 298 U.S. 160, 56 S.Ct. 696, 80 L.Ed. 1114; White v. Johnson, 1931, 282 U.S. 367, 51 S.Ct. 115, 75 L.Ed. 388; United States v. Union Pacific R. Co., 1897, 168 U.S. 505, 18 S.Ct. 167, 42 L.Ed. 559.

The Civil Aeronautics Board has applied to this Court for an order requiring the Court of Appeals to send up the entire record. To grant such an application would bring 'the entire matter in controversy' before the Court for decision. 28 U.S.C. § 1254(3) 28 U.S.C.A. § 1254(3).

Since the certificate must be dismissed, the Court should not exercise its discretionary power to bring up 'the entire matter in controversy' for review. See Cleveland-Cliffs Iron Co. v. Arctic Iron Co., 1918, 248 U.S. 178, 39 S.Ct. 91, 63 L.Ed. 198. Perhaps the Court of Appeals may now wish to hear this case en banc to resolve the deadlock indicated in the certificate and give full review to the entire case. This Court does not normally review orders of administrative agencies in the first instance; and the Court does not desire to take any action at this time which might foreclose the possibility of such review in the Court of Appeals.

For these reasons the Board's application is denied.

Mr. Justice DOUGLAS dissents.