New York Airways, Inc. v. United States

New York Airways, Inc. v. United States

Opinion

PER CURIAM ¹

 [*803]   [**744]  These are three parallel suits by three helicopter companies which were not paid sums alleged to be due them from April 1965, for carrying the mail. Plaintiff in  [*804]  No. 168-65, New York Airways, Inc. has continuously operated since 1960 a helicopter service in the New York City metropolitan area under a certificate of public convenience and necessity issued by the Civil Aeronautics Board (the "Board") pursuant to section 401 of the Federal Aviation Act of 1958 (the "Act", 49 U.S.C. § 1301, et seq.), authorizing this plaintiff [***8]  to carry passengers, property, and mail. Under its statutory authority the Board promulgated Order No. E-20495, dated February 20, 1964, fixing monthly compensation to be paid this plaintiff (as well as the other two) for transporting mail, which included both service and subsidy elements. By April 1965 funds for the subsidy element of compensation earmarked by the Appropriations Act for fiscal year 1965 (78 Stat. 640) were exhausted, and the plaintiff was not paid a balance of $ 94,377.26 due it for the April subsidy payment. Plaintiff in No. 234-65, Los Angeles Airways, Inc., has performed a similar operation in the Los Angeles area under a Board certificate issued in 1958, and Order E-20495 likewise fixed monthly compensation for it which was not paid for April 1965 (in the amount of $ 79,474.91), for May 1965 ($ 135,518.47), and for June 1965 ($ 131,146.91) (a total of $ 346,140.29). Chicago Helicopter Airways, Inc., complainant in No. 343-65, has operated in the Chicago area under a certificate issued in 1963; its compensation under Order E-20495 was not paid for April, May, and June 1965 (in the amount of $ 173,071.80). All parties have moved for summary judgment and there [***9]  are no disputes on any relevant issue of fact.

The key questions are (1) whether the particular wording of the Act empowers the Board to obligate the United States for the payment of an agreed subsidy in the absence or deficiency of a congressional appropriation, and (2) whether an appropriation act amended the basic  [**745]  Act with respect to the Board's rate-making power. The plaintiffs prevail as to each of these issues.

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