that an adjudicatory rather than a rule-making proceeding should have been conducted and that in the absence of an adjudicatory proceeding, the regulation must be deemed invalid. It has been held, however, that if the impact of a ruling or decision of the Board affects an entire class, rather than particular members of a group, an adjudicatory proceeding is unnecessary and the rule-making process may be properly invoked, Capitol Airways, Inc., v. C.A.B., 110 U.S.App.D.C. 262, 292 F.2d 755, 758.
Plaintiff's counsel urges that the regulation in question deprives the plaintiff of vested rights and that, therefore, its promulgation was in effect an adjudication. This reasoning is, however, an argument in a circle. It is predicated upon the plaintiff's interpretation of the statute as conferring a vested, unlimited power on air lines to conduct charter flights and perform special services. As heretofore indicated, this assertion is erroneous, since no vested rights that may not be limited by the Board are in fact granted to the air lines by the provision under consideration.
It is next objected that the regulation is discriminatory. It is not claimed, however, that the regulation discriminates against the plaintiff, or as among individual carriers. The basis for this contention is that the effect of the regulation is to limit the activities of all-cargo carriers to a greater extent than those of carriers of other types. It hardly needs discussion beyond a mere mention that reasonable classification does not constitute illegal discrimination.
The final contention advanced in behalf of the plaintiff is that the record of the hearings before the Board does not sustain the validity of the regulation or the need therefor. This contention seems to be based on a misconception of the nature of a rule-making proceeding. Rule-making is a legislative process. It is neither judicial, administrative, nor quasi-judicial. An agency performing a legislative function need not proceed on evidence formally presented at hearings. It may act on the basis of data contained in its own files, on information informally gained by members of the body, on its own expertise, or on its own views or opinions. It is not necessary for the regulatory agency to cause to be submitted at hearings evidence that would support its rule-making decisions. The regulation ultimately promulgated need not be sustained by evidence. The purposes of rule-making hearings are to give an opportunity to interested parties to submit data and facts, and to present their views. Consequently, the Court does not review a record of such hearings as it does records in judicial or quasi-judicial proceedings. Such hearings are analogous to hearings conducted by Congressional Committees. An Act of Congress need not be supported by formal evidence introduced at hearings.
Much of the argument adduced by counsel for the plaintiff is directed to an effort to demonstrate that the rule is inexpedient, undesirable, or unfair. Such matters, however, are not for the Court to determine. The Court may not substitute itself for the Board and may not use its own judgment as to the desirability of the rule. The Court is restricted to determining whether the Board exceeded the limitations on its authority and whether there is any taint of illegality in its action.
It cannot be successfully claimed that there is anything arbitrary or capricious about the regulation, even if such an issue were cognizable by the Court, which is highly doubtful. The manifest objective of the regulation is entirely proper. Some mathematical formula had to be contrived in order to effectuate its aim. The Board used its best judgment in devising one.
In view of the foregoing considerations, the Court concludes that the challenged regulation is valid in law, and that there is no basis for setting it aside.
Motions of defendants and intervenor to dismiss the complaint are granted. Plaintiff's motion for summary judgment is denied.
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