the term 'revoke' by the word 'terminate'.
The tentative conclusion of the Board was that the Alaskan air service of Pan American 'would be terminated, except at Fairbanks, which would be suspended until sixty days after the Board's decision in the Reopened Transpacific Route case'. It can hardly be seriously contended that because the Board would terminate the route, except as to the Fairbanks terminal, but would suspend the Fairbanks terminal, the entire route would not be terminated. It is difficult to understand how it is possible to terminate a route with the exception of one of the two terminals and leave the latter in a state of suspension. A route must have two termini. Surely, it is not intended that the plaintiff might maintain intraurban air transportation within the city of Fairbanks, when the suspension would be lifted. Moreover, suspension for an indefinite term, amounts practically to a termination. No one can determine when the proceeding referred to in the suspension may be decided. Consequently, the device of suspending one terminal is meaningless and cannot be successfully used to avoid the limitations on revocation.
Finally, it is argued, apparently as an afterthought, that the plaintiff possesses a number of certificates granted to it by the Board from time to time, each covering a different route; that these certificates should be considered as a single entity; and that consequently the termination of any one of them is but a modification of the entirety, rather than the termination of a single certificate. The Court is of the opinion that this ingenious contention is untenable. There is no basis in the statute for treating all certificates granted to one air carrier as a single group, or as a single certificate. The Act, 49 U.S.C.A. § 1371, throughout speaks of a certificate in the singular. Subsection (e) specifically provides that 'each certificate * * * shall specify the terminal points and intermediate points, if any, between which the air carrier is authorized to engage in air transportation'. Subsection (g) which has already been discussed at length and which relates to modification and suspension, as well as revocation, also expressly uses the word 'certificate' in the singular. It is clear that Congress contemplated that each certificate should be treated separately.
The reliance of the defendants on the decision of the Supreme Court in Delta Air Lines, Inc. v. Summerfield, 347 U.S. 74, 74 S. Ct. 350, 98 L. Ed. 513, in support of its contention on this point, is not well founded. That case related to an airmail subsidy, which naturally is paid in the discretion of the Government. The Court held that the need of the carrier for pecuniary aid must be measured by the entire financial requirement of the carrier and the entirety of its operations, rather than by the losses of one division or department. The statute expressly requires that in fixing airmail subsidies, the need of the carrier for financial assistance be considered, 'together with all other revenue of the * * * carrier' 49 U.S.C.A. § 1376(b). There is no support in this decision for a contention that all certificates owned by the same carrier should be treated as a single certificate for the purposes of amendment or revocation.
In the light of the foregoing discussion, the Court reaches the conclusion that the Board has no legal authority to terminate or recommend the termination of the plaintiff's certificate of public convenience and necessity, and that the Board is exceeding its statutory authority in taking steps to accomplish this result.
There remains a procedural objection to be considered. The defendants urge that irrespective of the merits of the plaintiff's contention as to its substantive rights, this action may not be maintained on the ground that it is premature, and that the plaintiff should first exhaust its administrative remedy, namely, wait until the Board completes its hearings and investigation, makes its final decision, and the President approves it. At the outset, it must be noted that while ordinarily orders of the Civil Aeronautics Board are subject to review by the Court of Appeals, 49 U.S.C.A. § 1486, a final order in the present proceeding would not be reviewable in this manner. Orders of the Board relatng to overseas or foreign air transportation are subject to the approval of the President, 49 U.S.C.A. § 1461. This provision applies in this instance. The Supreme Court has held that such orders are not appealable to the Court of Appeals on the merits, since the action of the President involves the exercise of Executive discretion and may take into consideration such matters as national defense and foreign relations, and may be based on information not available to the courts, Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S. Ct. 431, 92 L. Ed. 568. Government counsel do not deny that any final order of the Board in this proceeding will not be subject to review on the merits by the Court of Appeals.
In British Overseas Airways Corp. v. Civil Aeronautics Board, 304 F.2d 952, the Court of Appeals for the District of Columbia Circuit, while dismissing a petition for a review of an order in respect to a foreign air carrier, nevertheless expressly noted that its ruling was not to be construed as holding that there may not be a judicial remedy against administrative or even Presidential action beyond the scope of lawful authority. The petition was dismissed without prejudice to any proceeding in the District Court that might be thereafter brought. The position of the Government is, however, that an action for a declaratory judgment or for an injunction at this stage of the proceeding, is premature and does not lie until the plaintiff has exhausted his administrative remedies.
Two considerations are involved in determining whether a suit for a declaratory judgment may be maintained. The first is whether a cause of action for a declaratory judgment is stated. The second is whether in the exercise of its discretion the Court should entertain the action, since, unlike other civil actions, the courts have discretion to entertain or reject a request for a declaratory judgment.
The very purpose of declaratory judgments is obviously to make possible a determination of rights and liabilities before a controversy reaches a state at which one of the parties is in a position to sue for a remedy. When introduced into the law, declaratory judgments were regarded as a notable advance in legal procedure. The Federal courts may grant a declaratory judgment, however, solely if there is an actual controversy existing between the parties. This qualification is manifestly due to the principle that Federal courts may not render advisory opinions in view of constitutional limitations, but may decide only actual cases and controversies. In this instance, it is clear that an actual controversy has arisen. The Board has tentatively decided to terminate the plaintiff's certificate. It has announced its intention and has taken steps to carry this decision into effect, merely giving an opportunity to the plaintiff to show cause to the contrary. The plaintiff claims that legal power to terminate the certificate does not exist. There can be no doubt that an actual, justiciable controversy has ripened into being.
In this respect the instant case radically differs from Eccles v. Peoples Bank, 333 U.S. 426, 68 S. Ct. 641, 92 L. Ed. 784. There Peoples Bank brought an action for a declaratory judgment against the Federal Reserve Board to secure an adjudication that a certain regulation of the Board was void. The Bank averred that the regulation might have been violated by it, that the Board might enforce the regulation, and that the enforcement might require the withdrawal of the bank from the Federal Reserve System. The defendants replied that they had taken no steps to enforce the regulation against the bank, and had no present intention of so doing. The Court held that the action for a declaratory judgment should not have been entertained, since the grievance of the bank was too remote and unsubstantial and too speculative in nature to justify either an injunction or a declaration of rights. No actual controversy had as yet matured. The Court observed, however, (p. 434, 68 S. Ct. p. 645):
'A determination of administrative authority may of course be made at the behest of one so immediately and truly injured by a regulation claimed to be invalid, that his need is sufficiently compelling to justify judicial intervention even before the completion of the administrative process.'
In the case ar bar the Civil Aeronautics Board has actually made a tentative decision against the plaintiff, has announced its intention to effectuate it, and has taken steps to do so. Unlike the situation in the Peoples Bank case, here, the controversy has obviously reached an active stage at which a declaration of rights is appropriate.
As stated above, however, it is claimed that the Court should withhold its interposition until the administrative remedy has been exhausted and the Board renders a final decision, followed by Presidential approval. There are several reasons why this contention should not be sustained. While there is a general rule to the effect that ordinarily a party seeking relief against administrative action should first exhaust his administrative remedies, there are well recognized exceptions to this principle. The doctrine is frequently applied if it is contended that the administrative action would be erroneous. The requirement of exhaustion of administrative remedies has not been invoked, however, in cases in which a claim is advanced on substantial grounds that the administrative agency is transcending its legal authority, Skinner & Eddy Corp. v. United States, 249 U.S. 557, 562, 39 S. Ct. 375, 63 L. Ed. 772 (Brandeis, J.); Chambers v. Robertson, 87 U.S.App,D.C. 91, 93, 183 F.2d 144; Interior Airways, Inc. v. Wien Alaska Airlines, Inc., D.C., 188 F.Supp. 107, 109.
Then, too, in this instance no judicial remedy can be sought between the time when the Board renders its decision and the date on which its order is transmitted to the President for approval, since the statute requires that the decision be submitted to the President before its publication by the Board, 49 U.S.C.A. § 1461. Consequently, there will be no interval between the decision of the Board and final action of the President during which judicial review can be sought.
Finally whether an action to review the decision of the President would lie is not a question that this Court should determine at this time. To intimate any opinion on it would be inappropriate. Suffice it to say, however, that serious problems of both adjective and substantive law may well arise in connection with any attempt to seek judicial review of Presidental action approving an order of the Board.
It was argued by able counsel for the Government that the plaintiff might pursue the same course as was followed in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153, where an action was brought against the Secretary of Commerce to enjoin him from carrying out an order of the President. With commendable candor, however, counsel for the Government replied in the negative to an enquiry propounded by the Court whether he was in a position to commit the Government to a concession that such an action would lie and that the Government would not interpose any procedural objections to it. Manifestly, the plaintiff should not be remitted to a problematical remedy at some future date. A person should not be relegated to setting sail in a fragile bark, in order to seek adventure on a partially charted sea.
The Court concludes that under the circumstances of this case, and for the reasons heretofore discussed, this action may be maintained at this time.
Accordingly, the motion of the defendants for summary judgment is denied. The motion of the plaintiff for summary judgment is granted to the extent that the Court will render a declaratory judgment that the plaintiff's certificate of public convenience and necessity involving the route here in question may not be terminated, either directly or indirectly except in revocation proceedings in accordance with the statute; and will grant a permanent injunction against the Civil Aeronautics Board restraining such proposed action. The Court will not enjoin the progress of the hearings since other matters may possibly be considered by the Board in this proceeding.
Counsel may submit a proposed judgment.