American Airlines, Inc. v. Civil Aeronautics Board
In American Airlines, Inc. v. Civil Aeronautics Board, 123 U.S.App.D.C. 310, 359 F.2d 624, 628, 631 (1966), the Civil Aeronautics Board issued a policy statement after rulemaking proceedings that only all-cargo carriers could sell space for freight on a reserved basis at wholesale rates.
The Board approved pending tariffs of all-cargo carriers providing for such service and summarily rejected the similar tariffs filed by combination carriers. The latter objected on the ground that the Board's action effected a modification of their certificates of public convenience and necessity which could be accomplished only after a full adjudicatory hearing under section 401(g) of the Federal Aviation Act, 49 U.S.C. 1371(g).
The court rejected the argument on the basis of the Storer rule "that notwithstanding the statutory hearing requirement the Commission retained the power to promulgate rules of general application consistent with the Act, and to deny an adjudicatory hearing to applicants whose applications on their face showed violations of the rule." 359 F.2d at 628.
The court, in rejecting the suggestion that United States v. Storer Broadcasting Company, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956) applied only to regulations affecting future applications for new certificates, and not to regulations affecting rights under existing certificates, stated (359 F.2d at 629):
The Storer doctrine is not to be revised or reshaped by reference to fortuitous circumstances. It rests on a fundamental awareness that rule making is a vital part of the administrative process, particularly adapted to and needful for sound evolution of policy in guiding the future development of industries subject to intensive administrative regulation in the public interest, and that such rule making is not to be shackled, in the absence of clear and specific Congressional requirement, by importation of formalities developed for the adjudicatory process and basically unsuited for policy rule making.