source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge: MacKINNON, Circuit Judge WILKE Y, Circuit Judge

license: Public Domain

text:
    William H. APTON et al., Appellants, v. Jerry V. WILSON (Chief of Police) et al. Roger S. KUHN et al., Appellants, v. Jerry V. WILSON, Individually and as Chief of Police, Metropolitan Police Department, et al.
    Nos. 73-1614, 73-1615.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 30, 1974.
    Decided Aug. 16, 1974.

      MacKinnon, Circuit Judge, concurred and filed opinion.
    Wilkey, Circuit Judge, concurred and filed opinion.

      John Silard, Washington, D. C., with whom Joseph L. Ra'uh, Jr., and Elliott C. Lichtman, Washington, D. C., were on the brief, for appellants.
    Barbara L. Herwig, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and Kathryn H. Baldwin, Atty., Dept, of Justice, were on the brief for federal appellees.
    David P. Sutton, Assistant Corp. Counsel, Washington, D. C., for the District of Columbia with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for District of Columbia appellees.
    Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.
   LEVENTHAL, Circuit Judge:

These cases arise from law enforcement activities during the “May Day Demonstrations” of May, 1971, described in Sullivan v. Murphy. That was a class action in which plaintiffs complaining of arrest, detention, fingerprinting, booking, and prosecution without probable cause sought expungement of police records. This court held that a class action was appropriate in light of the extraordinary circumstances of the May Day arrests, for which the police suspended, normal post-arrest procedures that ordinarily allow individualized determinations of probable cause; that arrests unaccompanied by the usual indicia of the basis therefor were presumptively invalid; and that the plaintiffs were entitled to expungement of records or reasonably equivalent relief unless the District of Columbia authorities demonstrated probable cause for the arrests.

In the cases at bar, the thirty-four plaintiffs allege that they were arrested at the time of the May Day demonstrations while engaging in entirely lawful and unobjectionable conduct and were thereafter detained, fingerprinted, photographed and booked, notwithstanding the absence of probable cause supporting any charge of unlawful conduct. The plaintiffs seek damages for alleged violations of their Fourth and Fifth Amendment rights and certain equitable relief.

The defendants Mitchell, Kleindienst, and Will Wilson were, at the time of the events in controversy, respectively, the Attorney General of the United States, Deputy Attorney General and Assistant Attorney General, Criminal Division. The defendants Santarelli and Ugast were staff assistants to Attorney General Mitchell. Additional defendants are unidentified officers of the District of Columbia police department, Chief of Police Jerry Wilson, and the District of Columbia. The plaintiffs allege that the Chief of Police and the Justice Department defendants directed the law enforcement activities complained of.

The District Court granted summary judgment in favor of the Justice Department defendants on the ground that they were immune from suit over acts taken in their capacity as executive officials. As to the District of Columbia defendants the District Court certified the lawsuit against them to the Superior Court for the District of Columbia.

On reviewing the doctrine of official immunity, particularly in light of the recent Supreme Court decision in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), we reverse the District Court’s ruling as to the Justice Department defendants. We also hold that it was error to certify the case against the District of Columbia defendants to the Superior Court.

I. STATEMENT OF FACTS

A. General Background of the May, 1971 Demonstrations and Ensuing Law Enforcement Activities.

Beginning in April, 1971, the nation’s capital became the scene of numerous demonstrations, marches, and protest activities designed to focus national attention upon U.S. military involvement in Southeast Asia. In early April, demonstrations were small and sporadic, generating no serious encounters with police. Toward the end of the month, however, as the influx of demonstrators and protesters into the city swelled, tensions between protest activity and public authority mounted, and law enforcement resources became strained. Still, until April 30, protest activities had been directed at only a few government agencies. Some demonstrators were arrested, usually on charges of disorderly conduct or obstruction of building exits, but the Metropolitan Police seemed able to curtail serious disorder and disruption of government activity.

During the weekend of April 30, however, certain protest leaders announced plans to block access to the city during the morning rush hour of Monday, May 2. They designated for obstruction specific locations on the major arteries used by the many Federal employees commuting from Maryland and Virginia suburbs.

Following these announcements, the authorities made plans during the weekend to cope with the threat. Some Federal offices asked employees to volunteer to report for work early on Monday morning. The Metropolitan Police Force was augmented by 4,000 Federal troops and the District of Columbia National Guard was called up for training.

Efforts by protesters to impede commuter traffic into the city did materialize on May 2, but the police and other city personnel deployed were generally able to thwart them. Police, fire, and sanitation department personnel counteracted the protesters’ attempts to obstruct streets and bridges by abandoning vehicles, burning trash containers, or strewing nails and glass fragments. On two bridges leading -into the city, crowds of demonstrators who charged police lines were repulsed with truncheons and tear gas. Despite some delay traffic did flow into the city, and by the end of the day government officials reported fewer absences than those expected on an average workday.

The events of the following day, May 3, have been described in detail in Sullivan v. Murphy, supra, and it suffices here to quote an excerpt from that opinion:

The authorities were confronted on May 3 with the need to prevent any build-up of large numbers of persons at the focal points of the demonstration. There was a danger that the police ranks would themselves be overwhelmed. There was also the possibility that crowds of people would, by the mere fact of their presence, thwart efforts to keep the highways open.
The police responded to the situation by making mass arrests. In so doing, however, they swept up innocent persons along with the lawbreakers. The Washington Star quoted Assistant Police Chief Hughes as saying: “We had them . . . and we had to do something right away. Someone can judge the rightness of it later.” This is, of course, not evidence as such, but it vividly summarizes the situation fairly apprehended from the record.
The pivotal moment was 6:23 a. m., when Police Chief Jerry Wilson issued an order suspending normal field arrest procedures. According to Chief Wilson’s sworn testimony in another action, incorporated into the record of this case, his decision was motivated by reports that demonstrators were in the process of damaging automobiles and blocking traffic at a number of locations. He also testified as to his apprehension of “serious property damage or death or serious injury to innocent persons if the city were closed or if the demonstrators should decide to do something more than simply block traffic, as, for example, loot or engage in acts of thrashing or arson,” and his conclusion that “it is not practical for the police to rapidly arrest hundreds of individuals who are blocking traffic and process them through the field arrest process.”
This suspension remained in effect throughout the day, and for the vast majority of the nearly eight thousand persons taken into custody neither field arrest forms nor Polaroid photographs were prepared at the time of apprehension. Instead, the arrestees were simply loaded aboard vehicles and taken to various detention areas that had been established, principally Robert F. Kennedy Stadium and the District of Columbia Jail. Arresting officers did not accompany their prisoners. Indeed, in many instances, the arrestee had no way of even becoming aware of the identity of the officer making the arrest, because many policemen wore neither badges nor name tags.
In the absence of field arrest forms, the authorities lacked any. information concerning the thousands of persons who were being held in police custody. There was no record of time, location or circumstances of the arrests. Manifestly, the District of Columbia was at this time utterly incapable of preparing cases against the arrestees. If the prisoners had been arraigned, the Superior Court would plainly have been compelled to order their release for failure to show probable cause for arrest. In a post hoe effort to remedy this situation, special booking procedures were established to gather and record information concerning the persons arrested and to photograph, fingerprint and formally charge them.
It appears that many of the persons held at the District of Columbia Jail were either processed there or transferred to local police precincts for booking. Those who had been detained at RFK Stadium — together with some prisoners being held at the Jail and at other locations — were sent to a makeshift booking center that had been established at the District of Columbia Coliseum, located close by the Stadium. This processing facility was staffed in large part by volunteer attorneys from various divisions of the Justice Department, acting under the supervision of Metropolitan Police officers. Their testimony, given under subpoena, is incorporated in the record.
Prisoners were taken from the detention areas to a table where “long form” arrest records (identified as Police Department Form number 255) were prepared. The Department of Justice employees who assisted in the bookings were told to record the name, address and physical description of each arrestee. In the blank marked “Original Charge” they were instructed to enter the words “Disorderly Conduct.” At their initial briefing, they had been given a list containing the names, badge numbers and unit designations of seven police officers. Under the caption “Name of Arresting Officers,” they were told to insert “one name taken seriatim from [this] list of seven;” and they were specifically told to leave blank that portion of the form in which the circumstances of the arrest were to be recorded.
Once the “long forms” had been completed, prisoners were escorted to a second table where field arrest forms and blank FBI fingerprint cards were filled out. Those working as clerks in this section had also been given the list of seven police officers’ names to record under the heading “Arresting Officer”. For the most part, however, they merely copied whatever name had been entered on the previously completed “long forms.”
When these steps had been accomplished, the prisoners were taken to an area where they were fingerprinted and photographed. Any who refused to submit to this procedure were returned to detention, in the locations that had come to be dubbed “detention pens.”
Arrestees who had undergone processing were given an opportunity to secure their release by posting collateral bond at the detention center. Even such acquiescence was no guarantee of prompt release, as appears from the affidavits of one person held for 15% hours at RFK Stadium and the Coliseum, another for “about 20 hours” at the same locations, and a third for 17 hours at the D.C. Jail and the 14th Precinct lock-up.

Sullivan v. Murphy, supra, 156 U.S.App.D.C. at 39-41, 478 F.2d at 949-951 [footnotes omitted].

B. Background of These Appeals.

The plaintiffs began these lawsuits on May 12, 1971. Thereafter, they sought extensive discovery aimed at ascertaining the extent to which law enforcement activities during the demonstrations had been directed and/or supervised by the Chief of Police and higher officials at the Department of Justice. In a deposition taken by the plaintiffs, Chief of Police Wilson testified about his communications with Justice Department officials prior to and during the May Day demonstrations. These included several meetings at the Justice Department, held before the demonstrations, at which anticipated law enforcement problems were discussed; consultations with the Department during the demonstrations by a means of a direct telephone line to the Chief’s police cruiser; and conversations with a Department official sometimes accompanying the Chief on the scene. The Justice Department defendants acknowledged these communications, but denied any involvement in decisions regarding the methods to be used by law enforcement personnel in the arrest and confinement of particular persons.

The plaintiffs served the defendants Mitchell and Kleindienst with interrogatories calling for disclosure of the following information: the date and place of each predemonstration meeting, the participants, the medium of communication, and “what was said by each person in as much detail as you can recall or determine from your records.” The defendants filed partial answers to the interrogatories, but they declined to answer insofar as disclosure of irrelevant material or of “considerations, deliberations, or advisory opinions” was demanded. Plaintiffs moved for an order compelling discovery, and the District Court ordered the defendants Mitchell and Kleindienst to submit further answers to be inspected by the court in camera. The Court, in an order filed December 18, 1972, ruled that the material submitted for in camera examination was privileged. Thereafter, the Justice Department defendants renewed a motion for summary judgment, on the ground of official immunity from liability arising from the acts alleged in the complaint. -In a brief order filed March 26, 1973, the District Court granted summary judgment in favor of Justice Department defendants, stating that “the actions of these defendants were well within the ‘outer perimeter’ of defendants’ official duties, Barr v. Matteo, 360 U.S. 564 [79 S.Ct. 1335, 3 L.Ed.2d 1434] (1959).”

While the motion of the Justice Department defendants for summary judgment was pending, the Supreme Court decided District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), holding that the District of Columbia is not a “State or Territory” within the meaning of 42 U.S.C. § 1983. Since the plaintiffs’ complaint in the case at bar had relied- in part upon § 1983, the Department of Justice, on February 13, 1973, advised the District Court of the decision, concluding its memorandum with the statement that “we take no position on whether the Court should certify this action, insofar as it involves the District of Columbia defendants, to the Superior Court.” On February 20, the District Court, apparently sua sponte, certified to the Superi- or Court the plaintiffs’ claims against the District defendants.

II. DISMISSAL OF THE CLAIMS AGAINST THE JUSTICE DEPARTMENT DEFENDANTS ON THE GROUND OF OFFICIAL IMMUNITY

A. Issue Presented for Review.

The narrowness of the immunity question presented by this appeal is perhaps best conveyed by our noting issues that are not now before us. We are not at this juncture concerned with whether the plaintiffs were, as they allege, seized while engaging in entirely lawful activity, nor whether the Justice Department defendants participated in or directed the law enforcement activities that resulted in the plaintiffs’ detention. Nor are we presented with the question whether the seizure and detention to which plaintiffs were subjected, even if shown to have been without probable cause, might be deemed a justifiable suspenison of constitutional rights in the face of an extraordinary emergency. The. Justice Department defendants did not seek summary judgment on such a theory but instead asserted immunity. The issue presented here is this: do high officials of the Justice Department enjoy absolute immunity from liability for directing or participating in law enforcement activity that deprives innocent citizens of Fourth and Fifth Amendment rights?

B. General Doctrine of Official Immunity

The principle that certain government officers should not be held liable for every injury that flows from official conduct is rooted in the premise that public officials who exercise discretion will be unreasonably deterred from vigorous adminstration if fearful that their judgment will later be questioned as a result of vindictive litigation. The undesirability of chilling legitimate official conduct by imposing liability has been repeatedly reaffirmed, but the principle has become increasingly difficult to apply as courts have perceived both that a wide variety of officials must make decisions when an unambiguously “correct” choice is not entirely clear in advance, and that the breadth of an official’s discretion does not detract from his capacity to inflict injury.

The immunity of judges has long been settled. The judge is not liable for any injuries resulting from acts within his jurisdiction, and jurisdiction is construed broadly so that a judge will not be held liable unless he acts without color of authority. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). The common law immunity of judges is fully applicable in suits under 42 U.S.C. § 1983 alleging deprivations of constitutional rights. Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

Executive officials also enjoy immunity from liability for a variety of injuries arising from official acts. Kendall v. Stokes, 44 U.S. (3 How.) 87, 11 L.Ed. 506 (1845), held that the Postmaster General was not liable in damages for having suspended payment on a contract made by his. predecessor in order to examine the propriety of payment. Though the money was later determined to be owing, the Court stated that the officer “had a right to suspend [payment] until he made his examination and formed his judgment.” 44 U.S. at 98.

In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), the Supreme Court held that the Postmaster General and several subordinates could not be held liable in damages as a result of publishing “official communications made by him pursuant to an act of Congress,” 161 U.S. at 498, 16 S.Ct. at 637, where it was alleged that the officer had acted maliciously, with the intention of injuring the plaintiff’s contractual relations. The principle that an executive official is shielded while making official communications was extended further in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), a defamation action brought against the Acting Director of the Office of Rent Stabilization, in which the Supreme Court held that the official enjoyed an absolute privilege while making a public statement so long as his action was “within the outer perimeter of [the official’s] line of duty,” 360 U.S. at 575, 79 S.Ct. at 1341. The decisions in Spalding v. Vilas, supra, and Barr v. Matteo, supra, focused on the particular injuries alleged there — loss of contract in Spalding and injury to reputation in Barr. While it is possible to draw upon these opinions for an immunity that protects officials under different circumstances, see Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965), the soundness of any such extension of an absolute immunity must be reappraised in the light of Scheuer v. Rhodes, supra, discussed below.

For prosecuting attorneys an immunity rule has been complicated by the diversity of their functions, with some, such as the presentation of evidence to a grand jury and the conduct of a trial, closely entwined with the judicial process, and others, such as the direction of investigative or law enforcement activity, futher removed from judicial scrutiny. Prosecutors have been held to enjoy absolute immunity in connection with those functions in which they participate in the judicial process. See, e. g., Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). However, the same protection has not been available when a claim under civil rights legislation focuses on a prosecutor’s actions in the course of directing police investigative activity. See Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955).

The doctrine of immunity as applied to executive officers is put in perspective with the Supreme Court’s recent decision in Scheuer v. Rhodes, supra. In that case, the plaintiffs alleged violations of constitutional rights at the hands of law enforcement forces deployed at the campus of Kent State University in May, 1970. Their suit for damages, brought under 42 U.S.C. § 1983 against the Governor of Ohio, the Adjutant-General and various other members of the Ohio National Guard, and the president of Kent State University, had been dismissed on the ground that the officials involved enjoyed absolute immunity. The Supreme Court held that the officials’ protection was narrower. The Court recognized the need for public officials faced with threatened civil disorder to respond swiftly and firmly. It observed: “Decisions in such situations are more likely than not to arise in an atmosphere of confusion, ambiguity, and swiftly moving events and when, by the very existence of some degree of civil disorder, there is often no consensus as to the appropriate remedy.” 416 U.S. at 246-247, 94 S.Ct. at 1691. But the Court held that the need for “decisions and action to enforce the laws for the protection of the public” could be accommodated with the plaintiffs' interest in redressing violations of their constitutional rights by affording the official a qualified immunity, shielding action taken in good faith belief as to its constitutionality, a belief justified by the circumstances reasonably known to the official at the time he acts. Although the Scheuer opinion couples good faith belief with “reasonable grounds” for the belief, hence the official’s assertion of good faith is not conclusive, it simultaneously cautions that courts will not unfairly use hindsight in assessing official actions challenged in litigation. An officer is “entitled to rely on traditional sources” for the information on which he forms a belief as to the lawfulness of his act. 416 U.S. at 246, 94 S.Ct. at 1691. The official is protected if he entertains a reasonable belief that his actions are lawful, notwithstanding a subsequent judicial determination that his actions have infringed constitutional rights. See Pierson v. Ray, 386 U.S. 547, 555-557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The Supreme Court in Scheuer concluded that

These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct.

416 U.S. at 247-248, 94 S.Ct. at 1692.

C. Official Immunity in the Context of This Case.

Although the Scheuer decision is not dispositive of the case at bar, the reasoning of that opinion, considered in the context of the present case, mandates rejection of the District Court’s implicit conclusion that the Justice Department defendants are shielded by an absolute immunity while performing official functions. We hold that a qualified immunity, having the same general character as that contemplated by the Supreme Court in Scheuer, is available to the Justice Department defendants in the present action. Such an immunity appropriately allows vindication of the Fourth and Fifth Amendment rights at stake, while preserving for the officials involved a shield against liability that will allow vigorous, legitimate use of power.

The individual rights at stake here are of the same magnitude as those asserted in Scheuer. Freedom from arbitrary arrest and detention are among our most cherished liberties. Their infringement has warranted a remedy in damages inferred from the Constitution itself in cases where Congress has failed to provide it by statute. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The infringement alleged here is substantial, carrying overtones of physical abuse. Elements of the assault upon individual liberty remain unredressed even if reverberation of harm into the future is contained by such relief as the ex-pungement of arrest records. See Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974); Sullivan v. Murphy, supra.

The defendants here, unlike the state officials in Scheuer, are the highest officers of a Federal executive department. The difference in office is relevant, for immunity depends in part upon “scope of discretion and responsibilities of the office,” Scheuer v. Rhodes, supra, 416 U.S. at 247, 94 S.Ct. at 1692. But the difference is not conclusive in this case. Like the highest executive officer of a state, the head of a Federal executive department has broad discretionary authority. Each is called upon to act under circumstances where judgments are tentative and an unambiguously optimal course of action can be ascertained only in retrospect. Both officials have functions and responsibilities concerned with maintaining the public order; these may impel both officials to make decisions “in an atmosphere of confusion, ambiguity, and swiftly moving events.” Scheuer v. Rhodes, supra, 416 U.S. at 247, 94 S.Ct. at 1691. Having a wider territorial responsibility than the head of a state government, a Federal cabinet officer may be entitled to consult fewer sources and expend less effort inquiring into the circumstances of a localized problem. But these considerations go to the showing an officer vested with a qualified immunity must make in support of “good faith belief;” they do not make the qualified immunity itself inappropriate. The head of an executive department, no less than the chief executive of a state, is adequately protected by a qualified immunity.

In arguing for absolute immunity, the defendants stress the particular duties of the Attorney General, especially his broad supervisory responsibilities over much of the Federal criminal justice system. The Attorney General is on occasion referred to as the nation’s “chief prosecutor” as a kind of journalistic shorthand. However, the absolute immunity often accorded prosecuting attorneys cannot shield the defendants in this case, for the prosecutor’s absolute protection, like that of the judge from which it is derived, is both justified and bounded by the judicial traditions and procedures that limit and contain the danger of abuse. Cases holding prosecutors absolutely immune have referred to them as “quasi-judicial officers,” and the circumstances typically provide alternative instruments of the judicial branch to check misconduct — the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself.

There is also room for extension of the “judicial” immunity approach to the case of executive officials taking action on findings made following administrative adjudication and subjected to appropriate judicial scrutiny. But such an extension of judicial immunity would not encompass the executive action complained of here — the making of decisions establishing policy as to clearing streets, making arrests, and confining those detained — for no comparable safeguards accompany them. Compare Robichaud v. Ronan, supra; Lewis v. Brautigam, supra. Continuing judicial surveillance of executive activity of this kind is inappropriate, see Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), and courts have recognized the need for executive officials to be free under a variety of circumstances from procedural constraints modeled on the judicial process. This does not undercut, but rather underscores, the need for the sole judicial protection available, the damage action against the official violating constitutional rights.

D. Disposition.

In our disposition as to the Justice Department defendants, we follow the Supreme Court in Scheuer and remand for further proceedings. A determination whether the defendants’ qualified immunity shields the acts at issue in this case requires a more complete record. An assertion of a qualified immunity would have to be accompanied by further factual presentation, concerning such matters ás what the defendants knew about the nature of the demonstrations and the potential for disruption, what general arrangements were made between the defendants and those in direct command of the law enforcement personnel on the streets, and what the defendants knew about the actual conduct of the peace-keeping forces deployed during the demonstrations. The Justice Department defendants did not develop these matters in the District Court, but, consistent with their assertion of an absolute immunity, focused their presentation on showing that the defendants were acting in an official capacity, and resisted the plaintiffs’ efforts at further discovery. Summary judgment is a device available to contain harassment of public officials by forcing them to defend non-meritorious suits, but where the controversy turns on officials’ knowledge and good faith belief— matters on which much of the relevant evidence will be possessed exclusively by officials themselves — the challenging party must be given the opportunity to show genuine dispute as to facts that are material under the appropriate legal principle.

III. CERTIFICATION OF THE LAWSUIT AGAINST THE DISTRICT OF COLUMBIA DEFENDANTS

Before granting summary judgment in favor of the Justice Department defendants, the District Court certified the action against the District of Columbia defendants to the Superior Court for the District of Columbia. Authority for certification is contained in 11 D.C.Code § 922(b), which provides:

In a civil action begun in the United States District Court for the District of Columbia during the 30-month period beginning on the effective date of the District of Columbia Court Reorganization Act of 1970,- the court may certify the action to the Superior Court if it appears to the satisfaction of the United States District Court at or subsequent to any pretrial hearing, but before the trial thereof, that—
(1) the action will not justify a judgment in excess of $50,000; and
(2) the action does not otherwise invoke the jurisdiction of the court.

This provision, which implements the termination of the “local” jurisdiction of the United States District Court for the District of Columbia effected by the District of Columbia Court Reorganization Act of 1970, permits certification only if the District Court finds that the amount in controversy is not satisfied and that Federal jurisdiction is not “otherwise” invoked, i. e., that jurisdiction is conferred solely by the provisions of Title 11, District of Columbia Code.

While the District Court did not make findings as to either jurisdiction or amount in controversy, plaintiffs assert that certification was improper because “federal question” jurisdiction, 28 U.S.C. § 1331(a), is invoked, and we focus our attention on that issue.

The actions against the police officers and Chief of Police include common law tort claims as well as claims arising directly under the Constitution. The latter claims are within the jurisdiction conferred by 28 U.S.C. § 1331(a) if the $10,000 amount in controversy is satisfied. In the complaint each plaintiff demands $50,000 in compensatory and $10,000 in punitive damages. While the allegations of the complaint are not conclusive the court must meet a stringent standard to support a finding that the amount in controversy is not satisfied. It must find “to a legal certainty that the claim is really for less than the jurisdictional amount.” , St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 382, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). The District of Columbia defendants do not dispute the amount in controversy. It appears that the allegation of jurisdictional amount is supported by a claim that is substantial enough, at least on its face, to satisfy the provisions of § 1331(a). See Sullivan v. Murphy, supra, 156 U.S.App.D.C. at 50, 478 F.2d at 960. See also Hartigh v. Latin, 158 U.S.App.D.C. 289, 485 F.2d 1068 (1973).

The District defendants predicate their attack on federal jurisdiction on a theory that § 1331(a) does not extend to suits against officials of the District of Columbia “acting in a purely local capacity.” (D.C. Brief 12). Such a construction finds no support either in the words or the legislative history of § 1331(a) and is inconsistent with our prior decisions in Sullivan v. Murphy, supra, and Hartigh v. Latin, supra. The Supreme Court gave no hint of such an exception to § 1331 when it recently concluded that a claim against a District of Columbia police officer could not be maintained under 42 U.S.C. § 1983 but could be litigated in the federal courts of the District of Columbia under § 1331. See District of Columbia v. Carter, supra, 409 U.S. at 432-433, 93 S.Ct. 602.

The District of Columbia, citing the holding that a municipality is not a “person” liable under 42 U.S.C. § 1983, argues that similarly a municipality may not be sued on a claim for damages arising directly under the Constitution. The District’s contention raises the question whether respondeat superior liability is appropriate in an action for deprivation of constitutional rights, where the remedy is traced directly to the Constitution rather than to 42 U.S.C. § 1983. This is- a question raised for the first time in this court, on which the parties, even on appeal, have not thoroughly focused. It applies only to the District of Columbia, and even if the District’s position were sustained claims against the individual officers would remain standing. Even as to the District, the question goes not to the District Court’s jurisdiction but to the merits, whether plaintiffs have stated a claim against the District of Columbia. We decline to interject ourselves into the issue at this juncture. The defendants may present it in the normal way, by a motion to dismiss filed in the District Court.

Since the actions against the District of Columbia defendants arising directly under the Fourth and Fifth Amendments are within the District Court’s jurisdiction conferred by § 1331(a), the District Court also has pendent jurisdiction over the common law claims stated against these defendants. See Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Marusa v. District of Columbia, 157 U.S.App.D.C. 348, 484 F.2d 828 (1973). The District Court’s power to resolve the pendent common law claims continues even if plaintiffs do not prevail on the constitutional claims. See Rosado v. Wyman, 397 U.S. 397, 403-405, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See also Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

So ordered.

MacKINNON, Circuit Judge

(concurring) :

I concur in the result. However, from a close examination of the record it appears highly likely that subsequent disclosures will prove the federal officers acted within the scope of their proper duties. I say highly likely in view of the opinion we express that:

We believe that the duties of Justice Department officials embrace consultations with the District of Columbia police as to methods used to deal with disturbances that contemplated disruption of operation of the Federal government.

At 92 n. 7.

My concurrence should not be interpreted as agreement with any inference that may be present in this case or in Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973), that the original arrests were unlawful because the police in most cases after 6:23 A.M. on May 3d were required to dispense with the field arrest forms in order to deal with the ensuing riot that was attempting to “close down the government.” Nor do I agree that the submission of the police to the compulsions of dealing with riot and conspiracy to disrupt the federal. government shifts the normal burden of proof to them. The police did an admirable job in handling a mob of unprecedented proportions (150,000 people), many of whom were seeking to carry out an unlawful objective by unlawful means, and the results were accomplished without a declaration of martial law, without the intervention of the National Guard or Army troops, and with minimum physical injury to individuals. In so doing, because of their limited manpower, the police were not able to perform all the paper work they usually carry out in making arrests. Thus, many persons who were undoubtedly guilty escaped conviction because the identity of those who could prove their guilt was never recorded. This was a necessary consequence of the unusual circumstances which confronted the police. Nothing I have said, however, condones charging the arrestees in an improper manner after their arrest.

WILKE Y, Circuit Judge

(concurring) :

I concur in Judge Leventhal’s opinion for the court. And, viewing the issue before us as carefully defined in Part II.A. of the opinion, I find nothing in the court’s opinion inconsistent with the observations of Judge MacKinnon, and therefore join in his expression, of views.

      . 156 U.S.App.D.C. 28, 478 F.2d 938 (1973).

      . The defendants Mitchell, Kleindienst, Will Wilson, Santarelli and Ugast will be referred to collectively as the Justice Department defendants.

      . The unnamed officers, Chief of Police, and the District of Columbia are referred to collectively as the District defendants.

      . In affidavits accompanying a motion for summary judgment, defendants Mitchell and Kleindienst stated that at pre-demonstration meetings at the Justice Department “the desirability of arresting demonstrators who violate the law” had been discussed, but they denied participation in any discussions concerning “the manner and methods for the utilization of police forces or the tactics to he used by the police” in the apprehending of demonstrators, and they denied that there had been any understanding or agreement as to post-arrest procedures,

      . As in Sullivan v. Murphy, supra, such a defense has not been interposed. We adverted to the issue there but found resolution unnecessary, holding that even if arrest and detention of the innocent were justified, “no legitimate overriding interest of public safety” had been served by their later booking and prosecution. 156 U.S.App.D.C. at 49, 478 F.2d at 959. That holding, of course, is controlling in the present case if the plaintiffs ultimately establish the absence of probable cause. Such intricate questions as the proper measure of damages stemming from fingerprinting, photographing, and booking, where prosecution is later dropped and the records expunged, do not detain us here. Our identification of the possibility of an “emergency” defense should not be taken as an expression that it could be successfully asserted. The defendants have not raised it, and should they do so, resolution would have to await a record more complete than that made by the affidavits now before the court.

      . See also Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Ney v. California, 439 F.2d 1285, 1287 (9th Cir. 1971); Arensman v. Brown, 430 F.2d 190, 193 (7th Cir. 1970); Madison v. Gerstein, 440 F.2d 338 (5th Cir. 1971). But see Hilliard v. Williams, 465 F.2d 1212 (6th Cir. 1972), cert. denied, 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322 (1972).

      . In its brief order granting summary judgment in favor of the Justice Department defendants, the District Court stated that the “actions of these defendants were well within the ‘outer perimeter’ of defendants’ official duties.” This finding, and the citation of Barr v. Matteo, supra, must be taken as indicating a view that the absolute privilege applied in Barr v. Matteo to defamation actions extends to shield officials from liability arising from any official act.
      Appellants challenge the District Court’s finding that the Justice Department defendants acted within the scope of their authority, asserting that the finding is inconsistent with representations by defendants Mitchell and Kleindienst, made in their affidavits, that their duties in connection with civil disturbances are to advise the President as 'to the possible use of Federal troops. Appellants assert that these duties cannot reasonably extend to consultation with local police regarding tactics to be used in dealing with a disturbance that does not result in a Presidential declaration of emergency or martial law. We believe that the duties of Justice Department officials embrace consultations with the District of Columbia police as to methods used to deal with disturbances that contemplated disruption of operation of the Federal government.

      . “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968) quoting Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891).

      . See Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. at 1218:
      [A judge’s] errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless de- ■ cision-making but to intimidation.

        See also L. Jaffe, Judicial Control of Administrative Action 242 (1965).

      . While some of the expressions in Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965), rejecting an action against Justice Department officials even for allegedly “malicious” acts must be reassessed in the light of Scheuer v. Rhodes, the precise holding in that case established absolute immunity in connection with the officials’ “selection of a proper method of enforcing a court’s orders in the face of active opposition and obstruction” (p. 862), functions closely linked with the judicial process.

      . Compare Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).

      . In response to the plaintiffs’ motion to compel discovery, the District Court ordered the defendants to submit materials for in camera inspection, and subsequently the court denied discovery on the ground of executive privileges. The court’s view that the defendants were shielded by absolute immunity may well have influenced its judgment as to the relevance of the material and the plaintiffs’ need for it, elements of the balancing test that determines whether the privilege must yield. See Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966), aff’d on opinion below, 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967); Nixon v. Sirica, 159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 n. 60 (1973).
      While the appellate court has access to documents put under seal by the trial judge, the general rule is that it is the function of the trial judge to conduct the initial screening in the light of appropriate legal standards, with appropriate provision for indexing, or other identification of documents, and argument of counsel, all as developed by the en banc court in Nixon v. Sirica, supra.

      . The Justice Department defendants assert that the record contains no evidence of their participation in or direction of the law enforcement activities of which jjlaintiffs complain. But these defendants did not seek summary judgment below on such a theory,' and that is the appropriate vehicle for raising such a contention initially. Should the defendants again move for summary judgment, plaintiffs will have an opportunity to i>roceed under Rule 56, including motion for discovery, to establish a genuine issue as to a material fact.

      . Occasionally, failure to satisfy the jurisdictional amount may be found despite an allegation of $10,000, see James v. Lusby, 162 U.S.App.D.C. 352, 499 F.2d 488 (1974).

      . Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

      . Failure to state a claim does not deprive the District Court of jurisdiction under 28 U.S.C. § 1331(a). Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

      . The District also contends that the suit as to Chief AVilson should be dismissed because the record clearly refutes any allegation ol his participation in the events complained of. This contention, also raised on appeal for the first time, is a matter that goes to the merits, appropriately raised in the District Court.


author: WILKEY, Circuit Judge:

text:
    NORTHEAST MASTER EXECUTIVE COUNCIL, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Air Line Pilots Association International et al., Intervenors. W. Peter CAREY et al., Appellants, v. J. J. O’DONNELL (President of Air Line Pilots Association) et al. George S. CHAUDOIN et al., Appellants, v. AIR LINE PILOTS ASSOCIATION et al.
    Nos. 73-1595, 73-1608 and 73-1783.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 18, 1974.
    Decided Aug. 19, 1974.
    Certiorari Denied Jan. 13, 1975.
    See 95 S.Ct. 783.
    See also 165 U.S.App.D.C. -, 506 F.2d 107.

      Walter J. Smith, Jr., Washington, D. C., with whom J. Gordon Forester, Jr., and Robert S. Perkins, Washington, D. C., were on the brief, for petitioner.
    Joan Marie Prankel, Atty., Civil Aeronautics Board, with whom Richard Lit-tell, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Robert L. Toomey, Asst. Chief, Litigation and Research, Civil Aeronautics Board, and Carl D. Lawson, Atty., Dept, of Justice, were on the brief, for respondent.
    Frank F. Rox, Atlanta, Ga., and Robert Reed Gray, Washington, D.C., were on the brief for intervenor Delta Air Lines, Inc.
    Gary Green, Washington, Dl.C., was on the brief for intervenor Air Line Pilots Association, International.
    W. D. Deakins, Jr., Houston, Tex., and Richard F. Watt, Chicago, 111., were on the brief for intervenor Delta Master Executive Council.
    Before EDWARDS, Circuit Judge for the Sixth Circuit, and TAMM and WILKEY, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   WILKEY, Circuit Judge:

This case comes to us on petition for review of a Civil Aeronautics Board order arising out of the merger between Delta Air Lines, Inc., and Northeast Airlines, Inc., brought by the Northeast Master Executive Council, representing the flight deck officers (pilots and navigators) formerly employed by Northeast and since the merger employed by Delta. Following the merger, the Master Executive Council filed a petition with the Board challenging the integrated seniority list of pilots of Delta, the merged surviving airline. The Board’s order dismissing this petition and a subsequent petition for reconsideration is the subject of our review. Finding no error in the Board’s proceedings, we decline to vacate its order.

I. PROCEEDINGS BEFORE THE BOARD AND THE UNITED STATES DISTRICT COURT

A. Background

On 24 April 1972 the Civil Aeronautics Board approved a merger between Delta Air Lines, Inc., and Northeast Airlines, Inc., subject to certain “labor protective provisions” imposed by the Board for the protection of the employees of both companies who might be adversely affected by the merger. In addition the Board reserved jurisdiction “to make such amendments, modifications, and additions to the labor protective conditions ... as the circumstances may require . . . . ”

At all pertinent times the Air Line Pilots Association (“ALPA”) was the certified bargaining representative for employees of both airlines. Pursuant to ALPA’s internal procedure for seniority integration, the Master Executive Councils (“MEC’s”) of Delta and Northeast each designated two merger representatives for the purpose of arriving at a single integrated seniority list. When on 5 June 1972 the negotiations culminated in agreement between the merger representatives, ALPA transmitted the list for acceptance by Delta, the surviving airline. By agreement of 26 October 1972 Delta agreed to modify its existing collective bargaining agreement with ALPA so as to implement the new list.

Shortly after its publication, however, the Northeast MEC sought to repudiate the list. ALPA president O’Donnell declined pleas to reject the list and explained that since the merger representatives, not the MEC’s, had been delegated complete authority under ALPA merger policy to compile a merged list, no authority existed in either MEC to alter its terms once the merger representatives reached an accord.

B. Proceedings in District Court

The disgruntled Northeast pilots filed three separate actions in District Court in an effort to set aside the integrated list. In Northeast Pilots Master Executive Council v. O’Donnell and ALPA, the Northeast MEC sought “on its own behalf and on behalf of more than 540 pilots which it represents” to enjoin ALPA from executing an agreement with Delta incorporating or acknowledging the integrated seniority list. The pilots’ central argument was that the merger representatives had exceeded the scope of their authority and that the resulting agreement was violative of the Railway Labor Act “in that it purports to eliminate the right of any aggrieved pilot or group of pilots to petition for a hearing before the System Board of Adjustment as provided by 45 U.S.C.A. sec. 184.” Citing Hyland v. United Air Lines, Inc., the District Court dismissed the action, holding that exclusive jurisdiction over the controversy lay with the Civil Aeronautics Board. No appeal was taken.

A second suit, W. Peter Carey, et al. v. J. J. O’Donnell and ALPA, was filed in District Court on 2 April 1973 by five named plaintiffs “on their own behalf and on behalf of more than 540 former Northeast pilots who are now employed by Delta Air Lines, Inc.” Again the District Court held that the Board had exclusive jurisdiction and dismissed the action.

A third action, George S. Chaudoin, et al. v. ALPA and Delta Air Lines, Inc., filed 19 April 1973 as a class action on behalf of former employees of Northeast Airlines, Inc., was dismissed as barred by res judicata and collateral estoppel.

The Carey and Chaudoin dismissals were appealed to this court, were consolidated for our consideration, and are treated together in the appended opinion of this date.

C. Proceedings Before the Civil Aeronautics Board

On 4 October 1972, after unsuccessful efforts in District Court, the Northeast MEC filed with the Board a Petition for the Exercise of Reserved Jurisdiction. The MEC alleged that the “540 flight deck officers represented by NE MEC will soon have imposed upon them an integrated seniority list that is not fair and equitable.” The Board dismissed the petition:

In sum, it has been, and continues to be, our view that absent a showing of bad faith, the adoption by a carrier of an integrated seniority list proposed by the collective bargaining representatives of the employees involved amounts to the carrier having made “provisions . . . for the integration of seniority lists in a fair and equitable manner” within the meaning of section 8 of the Board’s labor protective provisions.

Northeast M.E.C. filed the instant petition to review the Board’s order.

II. THE BOARD’S RESPONSIBILITY

Jurisdiction of the Civil Aeronautics Board over matters of airline merger, including the fair and equitable integration of seniority lists, is well established. We recognized in another context the Board’s “broad authority to approve airline mergers consistent with the public interest.” If, as we hold today in the companion cases, the Board is vested with exclusive jurisdiction over these matters, we must insure by our direct review that that jurisdiction is exercised in a manner that vindicates the policies underlying this and other arguably pertinent statutory provisions.

Consequently, the Board is charged with the ultimate responsibility of insuring that a fair, just, and equitable solution is reached with respect to the-integration of seniority lists as well as all other aspects of the merger it approves. To the extent that the Board relies upon negotiations among the parties most vitally interested, i. e., the pilots, this is recognition of a practical means to reach a result meeting the statutory standard, but delegation cannot relieve the Board of its statutorily imposed ultimate responsibility. Hence we would not hesitate to reverse if we were not satisfied that the Board had discharged this responsibility faithfully. However, on the record before us we conclude that the action below must be affirmed.

III. THE ALPA PROCEDURES EMPLOYED

Faced with the difficulties inherent in the fair and equitable resolution of seniority problems, and recognizing that such problems lend themselves readily to solution by negotiation and voluntary agreement, the Board in the Monarch-Challenger Merger Case established the policy of noninterference with private negotiations between affected pilot groups on matters of seniority integration. Although the Board was later forced to decide such questions itself in the North Atlantic Route Transfer Case, it later warned that its action there was “not to be construed as any departure from the declaration first made ... in [Monarch-Challenger] that the integration of seniority of employees of merging operations should, if possible, be left to voluntary agreement . . . .” Thereafter, the Board has consistently adhered to the Monarch-Challenger policy. In view of the many considerations necessarily involved in the assimilation of a fair and equitable integrated seniority list, we recognize the wisdom on several practical grounds of leaving such considerations to the employees’ freely chosen representatives for original negotiation.

In the instant case negotiations between the Delta pilots and the incoming Northeast pilots were governed by ALPA’s Merger Policy. Under this procedure, when the president of ALPA believes a merger to be imminent, he notifies the affected MEC’s and directs them to meet and to activate ALPA Merger Policy and Procedures. The president then determines by ballot among the affected flight deck operating crew members their choice between two methods for compilation of a merged seniority list. Method #1 provides for a list compiled “solely on the basis of length of service,” while Method # 2 takes into account “problems and factors peculiar to the merger, using length of service as a primary guide or reference point . . . . ” The majority of votes cast for either method governs for each respective airline, but where different airline pilot groups have elected dissimilar methods, the list is compiled in accordance with Method # 2. Method # 2 was decreed in the instant case because the two pilot groups split, Northeast pilots preferring #1 and Delta pilots opting for #2.

Continuing with the prescribed procedure, MEC-appointed committees compute current seniority lists for each ariline and entertain challenges thereto. Within 10 days after Board approval of the merger, each MEC meets and elects two representatives vested with plenary authority to act for their respective flight deck crew members. The merger representatives then “by direct negotiation reconcile all their differences as to method of integration and compile the single acceptable flight deck operating crew member seniority list.” Although progress reports are to be made every five days to the president of ALPA, no provision exists for apprising the respective MEC’s of the progress of negotiations. If no agreement is reached within 75 days of Board approval of the merger, the matter is submitted to arbitration for final resolution.

Conceding that its attack on the integrated list concerns “procedural irregularities that fall- short of directly violating . . . ALPA Merger Policy,” petitioner first contends that “the certified representatives of the Northeast pilots kept the details of the negotiations leading up to the merged list a secret from the pilots they represent, even after the agreement had been signed.” Of course, the very nature of such negotiations requires that they be attended by a certain degree of confidentiality. More significantly, however, the merger representatives were freely chosen by the respective MEC’s, who ostensibly could have revoked their authority at any time. Moreover, petitioner concedes that it was aware as early as 28 January 1972 that the merger representatives would not reveal any details of the negotiations. Yet the negotiations continued until formal execution of the agreement on 1 June 1972, and it was not until 26 days later that petitioner met in special session to “repudiate” the merged list. In light of these factors, coupled with petitioner’s failure to allege bad faith on the part of the merger representatives, we are not convinced that the secret nature of the negotiations inhibited the compilation of a fair and equitable list.

Petitioner next argues that by failing to follow its instructions to seek a merged list based solely upon length of service, the merger representatives ex-ceded the scope of their authority. But the simple answer to this is that ALPA merger policy on the method to be used is to the contrary, and there was nothing that either the merger representatives or the MEC could have done to change it. The merger policy not only provides that the MEC’s “will certify these representatives as having complete and full authority to act for and in behalf of the flight deck operating crew members,” thus proscribing any attempt by the MEC’s to limit their representatives’ authority, it also provided in this case for the use of Method #2 in the compilation of the merged list, thus rendering nugatory petitioner’s effort to instruct its representatives to use Method # 1.

Outland v. CAB, involving the merger between Delta Airlines and C & S Air Lines, arose out of a factual context nearly identical to the case at bar. The complaining pilots’ petition before the Board was dismissed, the Board refusing to disturb the negotiated result absent a failure to negotiate or a claim of bad faith. On direct appeal we affirmed :

[T]he Board would be placed in the position of dealing with issues not directly within its competence if it undertook to resolve conflicting claims on the interpretation of procedures established by collective bargaining agreements. The Board’s experience and expertise is with transportation not labor relations problems.

That reasoning is equally appropriate to the facts before us.

Finally, petitioner argues that its members voted to repudiate the final agreement and should therefore not be bound by its terms. Petitioner attempts to find support in Outland, supra, where we noted that the integrated seniority list was approved by the merging carriers’ respective MEC’s. However, MEC approval vel non was not necessary to our determination of the issue in Out-land. Additionally, as we indicate above, the ALPA policy in effect during the negotiations at issue in this case did not require (nor provide for) such MEC approval ; the merger representatives were vested with complete and full authority. Moreover, ALPA, not the MEC (merely an administrative arm of ALPA), was the sole bargaining agent for the pilots. Only ALPA was authorized to negotiate a bargaining agreement with the surviving carrier.

In sum, we conclude that petitioner has failed to demonstrate any irregularity in the ALPA procedures followed below which would justify a conclusion that the final integrated seniority list was not compiled in a fair and equitable manner. We turn now to a consideration of petitioner’s charges that the list is substantively defective.

IY. THE “FAIR AND EQUITABLE” INTEGRATED SENIORITY LIST

By its order of 24 April 1972 the Board ordered that provision be made for the integration of existing seniority lists “in a fair and equitable manvner . . . . ” The problems of compiling a seniority list for any given employee population are compounded when two previously established lists must then be integrated. Petitioner’s desire to rely heavily on length of service is shortsighted in view of the many other significant factors contributing to the fair and equitable integration of any seniority list.

In addition to length of service or age, experience, especially among airline pilots, is vitally important. Not only does equipment vary in size and technical sophistication from airline to airline, so do route structures. Five years’ experience on one airline may be the equivalent, for example, of only three years’ on an airline with larger and more complicated equipment or different route structures. Furthermore, Northeast was a failing airline, and its personnel being absorbed by the surviving carrier could naturally be expected to adapt to the Delta scheme rather than require Delta to rearrange its operations to accommodate the new pilots. Other important considerations include past hiring practices and relative prospects for continued employment and advancement at Delta and Northeast absent the merger.

The mention of Northeast being a failing airline emphasizes the significanee (and wisdom) of this integrated seniority list being produced by negotiation. Obviously, if Northeast had been allowed to fail and cease operations, its pilots would largely have been reemployed by other airlines taking over Northeast routes. The Northeast pilots reemployed, however, would not have joined another airline carrying their total seniority from Northeast. The former Northeast pilots may not necessarily have gone to the bottom of their new airline seniority lists, but to the extent each achieved a position higher on the ladder, it would have been as a result of individual negotiation.

And so here, to the extent any former Northeast pilot was ranked higher on Delta’s integrated list than previously employed Delta pilots, those Delta pilots were dropped a notch in seniority to make room for the Northeast pilots. Hence, negotiation among those most directly affected, by those most knowledgeable of respective pilot qualifications, was a proper way to compile the integrated list. Petitioner itself has recognized in another context the complexity of the problem with which the Board was faced in arriving at an equitable result. We likewise are impressed that the problem has no facile solution and, accordingly, defer to the negotiated result.

V. CONCLUSION

Section 408 of the Federal Aviation Act of 1958 vests the Civil Aeronautics Board with jurisdiction to hear and approve mergers between air carriers. Our jurisdiction to review the Board’s order is limited. On the record before us, however, we find the Board’s action in refusing to look behind the freely negotiated list to be wholly consistent with its obligations under the Act. Finding no reason to upset the Board’s order, it is accordingly

Affirmed.

APPENDIX A

SECTION XII

MERGERS, INTERCHANGE PROTECTIVE PROVISIONS

Merger Policy and Procedures

I — Notice of Merger

(a) When, in the opinion of the President of the Association, a merger or consolidation of air lines or parts thereof appears imminent, it will be his responsibility to notify the Master Executive Council of each affected air line that, in accordance with Association procedure, it is their responsibility as representatives of the affected flight deck operating crew members to meet and activate the Association procedures for settling their seniority merger problems.

(b) The President will cause a ballot to be circulated among the flight deck operating crew members of the Association on the current seniority lists of the affected air lines, offering a choice between :

Method # 1 — Compilation of a merged list solely on the basis of length of service as a flight deck operating crew member without disturbing any individual’s relative position on his seniority list.
Method # 2 — Compilation of a merged list on the basis of problems and factors peculiar to the merger, using length of service as a primary guide or reference point without disturbing any individual’s relative position on his seniority list.

(c) In tabulating the results, a majority of the votes cast for either Method # 1 or Method # 2 shall govern for the respective air lines.

(d) In mergers involving air lines whose pilots have elected dissimilar methods of integration, the compilation of an integrated seniority list shall be accomplished in accordance with the principles outlined in Method # 2.

II — Computation of Length of Service

(a) The Master Executive Council of each of the affected air lines will, prior to the date of Government approval, appoint a committee to investigate and compute the cumulative length of service of each flight deck operating crew member on its current seniority list, utilizing all available records. These findings will be compiled and held in abeyance until date of Government approval, at which time the committee will immediately forward on an appropriate Home Office form by registered or certified mail, to each flight deck operating crew member individually, a statement of their findings and request confirmation of the length of service they have accredited to the individual flight operating crew member.

(b) The computation of such length of service shall be based solely on the date a flight deck operating crew member was hired for the purpose of eventually performing the duties of a pilot, as substantiated by company payroll records and other records. Periods of service other than as a flight deck operating crew member shall not be considered in the computation of length of service. Furlough time shall not be credited in the computation of length of service, except that for the purpose of this section, furlough time directly resulting from labor disputes shall not be deducted. Furlough time may be credited in the computation of length of service in whole or in part if mutually agreed upon by the duly authorized merger representatives.

(c) It will be the responsibility of the individual flight deck operating crew member to challenge and to prove his protest by a written statement of fact and relevant evidence within 30 days after the length of service statement is mailed.

(d) The committee will receive and evaluate the protests and will adjudge the validity of the claims. Its decision will be final.

Ill — Compilation of a Merged List

(a) Within ten days from the date of Government approval of the merger, the Master Executive Councils of the affected air lines shall meet and elect two representatives from their respective seniority lists. The Master Executive Councils will certify these representatives as having complete and full authority to act for and in behalf of the flight deck operating crew members of their respective air line for the purpose of compiling a single flight deck operating crew member seniority list.

(b) Each committee will at this time submit its seniority list with the length of service computations to the duly authorized merger representatives for use in compiling an integrated list. If the respective merger representatives, after reviewing the length of service credit for each affected air line group, disagree as to the computation of the length of service credit, they shall be empowered to compromise their differences to the extent necessary to reach agreement, except that the relative position of the flight deck operating crew members on their respective seniority lists will be maintained. Failing this, the disagreement shall be resolved by utilizing the mediation or arbitration procedures which follow, regardless of the method by which the lists are finally integrated.

(c) The merger representatives of the affected air lines shall meet at the Home Office within thirty days from the said date of the Government approval and by direct negotiation reconcile all their differences as to method of integration and compile the single acceptable flight deck operating crew member seniority list. The representatives shall report at least every five days to the President of the Association on their progress in direct negotiation. If, at any time after receiving the first report, in the opinion of the President, satisfactory progress is not being made, he shall unilaterally intervene and invoke mediation.

(d) The Mediator shall be the President of the Association or an appointee of the President of the Association. Said appointee may be an Association officer, or Home Office staff member who has been relieved of all other Association duty during mediation sessions.

TV — Arbitration

(a) If within seventy-five days from the said date of Government approval, negotiations and mediation have not resulted in an integrated flight deck operating crew member seniority list, arbitration shall be mandatory, and such arbitration, except as specifically provided herein shall be conducted in accordance with the Arbitration Act of the State of Illinois as amended.

(b) The Executive Committee shall select and maintain a current master list comprised of 50 Association members who have consented to serve as members of a seniority integration Arbitration Board.

(c) The Arbitration Board shall be composed of three persons, two of whom shall be Association members selected from a master list by the merger representatives. Failing to agree on such two Association members of the Arbitration Board within 80 days from date of Government approval, the merger representatives will elect these members by alternately striking a name from the master list until two are left.

(d) The third member of the Arbitration Board shall be selected by mutual agreement of the representatives, or if unable to agree within 80 days from said date of Government approval, the President of the Association will invoke the services of the National Mediation Board to designate such third Board member.

(e) The Arbitration Board shall convene at the Home Office not later than 105 days from the said date of Government approval of the merger except that the President of the Association may, at his discretion, extend this time limit an additional fifteen days.

(f) The respective pilot Master Executive Councils from the affected air lines shall be charged with the presentations of their contentions regarding the merger and integration of the pilot seniority lists before the Arbitration Board, and shall present such contentions by oral or written evidence as they shall deem advisable.

(g) Only members of the Arbitration Board shall participate in executive sessions of the Arbitration Board. A majority vote will decide the issues and the decisions shall be made and written in an executive session of the Arbitration Board.

(h) The decision shall be issued not later than 60 days after convening of this Board and shall be final and binding on all parties to this arbitration proceeding.

V — Implementation

(a) Concurrent with merger procedures, the Master Executive Councils shall each appoint two members to a joint negotiating committee. The Master Chairmen of the respective air lines shall be ex-officio members of such committee.

(b) The President shall closely monitor preparation of the opening letter and all attendant problem areas and shall, if necessary, appoint a Chairman of the joint negotiating committee.

(c) In the event unresolved opening issues remain, the President of the Association will call a meeting of the joint negotiating committee within thirty days following the receipt by the Association of a completed seniority list for the purpose of resolving these issues.

(d) Where a duplication of Councils exists, the Executive Committee shall conduct a special Local Executive Council election within thirty (30) days after the signing of the merged working agreement. The Council identity of the combined Local Councils shall be the lowest designated number of the former Councils.

(e) Within forty-five days following the completion of the agreement, the President of the Association shall call an MEC meeting for the purpose of electing MEC officers. The President or his designee shall conduct such meeting and election.

      . Order No. 73-1-24 (dismissing Petition for Exercise of Reserved Jurisdiction) and Order No. 73-4-18 (denying Petition for Reconsideration) .

      . Orders Nos. 72-5-73 and 72-5-74, Docket 23315. The orders were served 19 May 1972.

      . Specifically, section 3 of those provisions directed in relevant part that
      provisions shall be made for the integration of [the previously separate Delta and Northeast] seniority lists in a fair and equitable manner, including, where applioable, agreement through collective bargaining between the carriers and the representatives of the employees affected. (Emphasis added.)
      Joint Appendix [hereafter App. 1 at 6.

      . App. at 5.

      . See note 22 infra.

      . ALPA’s constitution and by-laws establish a “Master Executive Council” as the administrative arm at each airline whose flight deck officers are represented by ALPA. Each ALPA flight deck officer group elects its own MEC on an airline-by-airline basis. App. at 174.

      . Civil No. 1911-72 (D.D.C., 4 October 1972).

      . 45 U.S.C. § 151 et seq.

      . 254 F.Supp. 367 (N.D.Ill.1966).

      . Civil No. 609-73.

      . Civil No. 752-73.

      . App. at 178.

      . Outland v. CAB, 109 U.S.App.D.C. 90, 284 F.2d 224 (1960); Kesinger v. Universal Airlines, Inc., 474 F.2d 1127 (6th Cir. 1973); American Airlines, Inc. v. CAB, 445 F.2d 891 (2nd Cir. 1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 674, 681, 30 L.Ed.2d 663 (1972); Oling v. Air Line Pilots Ass’n, 346 F.2d 270 (7th Cir. 1965), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965); Kent v. CAB, 204 F.2d 263 (2nd Cir. 1953), cert. denied, 346 U.S. 826, 74 S.Ct. 46, 98 L.Ed. 351 (1953).

      . Air Line Employees Ass’n v. CAB, 134 U.S.App.D.C. 185, 186, 413 F.2d 1092, 1093 (1969).

      . W. Peter Carey, et al. v. J. J. O’Donnell, et al., No. 73-1608; George S. Chaudoin, et al. v. Air Line Pilots Association, et al., No. 73-1783.

      . See 49 U.S.C. § 1486.

      . The causes of action under Carey and Chaudoin were asserted to arise under the Railway Labor Act [45 U.S.C. § 151 et seq.] and the Age Discrimination in Employment Act of 1967 [29 U.S.C. § 621 et seq.], respectively.

      . 11 C.A.B. 33 (1949).

      . 12 C.A.B. 124 (1950). The parties could not reach a voluntary agreement and refused to arbitrate.

      . 14 C.A.B. 910, 914 (1951).

      . See, e. g., Braniff-Mid-Continent Merger Case, 15 C.A.B. 708 (1952); Delta-Chicago and Southern Merger Case, 16 C.A.B. 647 (1952); Flying Tiger-Slick Merger Case, 18 C.A.B. 326 (1954).

      . Section XII, Mergers, Interchange Protective Provisions, see Appendix A.

      . Section XII, 1(b).

      . Section XII, 111(a) provides in relevant part:
      The Master Executive Councils will certify these representatives as having complete and full authority to act for and in behalf of the flight deck operating crew members of their respective air line for the purpose of compiling a single flight deck operating crew member seniority list.

      . Section XII, 111(c).

      . Section XII, 111(c).

      . Petitioner’s Brief at 11.

      . Id. at 8.

      . See Letter from J. J. O’Donnell to Captain M. Joseph Sheehan, 1 August 1972. App. at 172, 173.

      . Petitioner’s statement in this regard is self-contradicting:

        The complete and full authority given to the Northeast merger representatives by the NE MEO was limited by the instructions to these representatives to employ a particular method in compiling the integrated list. (Emphasis added.)
      App. at 21. Obviously the representatives were either given “complete and full authority” as required by ALPA procedure, in which event any countermanding instruction would be ineffective, or the MEO attempted to limit their representatives’ authority contrary to express ALPA policy concerning the particular method to be used in compiling the list. In either event the limiting instruction would have no effect.

      . Section XII, 111(a) (emphasis added).

      . 109 U.S.App.D.C. 90, 284 F.2d 224 (1960).

      . The Board had approved the merger in the Delta-Ohieago and Southern Merger Case, 16 C.A.B. 647 (1952), subject to the same labor pi’otective provisions which we consider today. ALPA policy and procedure had been followed in the same manner as in the case at bar with the exception that, as we noted earlier, the respective MEC’s had approved the integrated list.

      . 109 U.S.App.D.C. at 94, 284 F.2d at 228. But see Kesinger v. Universal Airlines, Inc., 474 F.2d 1127, 1132 (6th Cir. 1973) (dictum).

      . See note 3 supra (emphasis added).

      . “The contention that length of service should control or even that it should always be the dominant factor in seniority is not consistent with experience nor with judicial attitudes toward the subject. . . . Seniority is a matter of negotiation in the first instance and when confronted with the problem, the courts have recognized that factors other than time in service are also important. No general rules can or need he laid down.” 109 U.S.App.D.C. at 94, 284 F.2d at 228 (emphasis added, citations omitted).

      . It is significant in this regard to note that Delta pilots outnumbered Northeast pilots four to one. Petitioner’s Brief at 5, n. 1.

      . See MEC NEWSLETTER, Northeast (20 May 1970). App. at 89, 91-92.

      . 49 U.S.C. § 1378.

      . 49 U.S.C. § 1486(e) provides:
      The findings of facts by the Board or Administrator, if supported by substantial evidence, shall be conclusive. No objection to an order of the Board or Administrator shall be considered by the court unless such objection shall have been urged before the Board or Administrator or; if it was not so urged, unless there were reasonable grounds for failure to do so.


text:
    W. Peter CAREY et al., Appellants, v. J. J. O’DONNELL (President of Air Line Pilots Association), et al. George S. CHAUDOIN et al., Appellants, v. AIR LINE PILOTS ASSOCIATION et al.
    Nos. 73-1608, 73-1783.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 18, 1974.
    Decided Aug. 19, 1974.
    Rehearing En Banc Denied Nov. 1, 1974.
    Certiorari Denied Jan. 13, 1975.
    See 95 S.Ct. 783.

      Edwards, Circuit Judge, concurred in result in Nos. 73-1608 and 73-1783.
    See also 165 U.S.App.D.C. • — •, 506 F.2d 97.
    J. Gordon Forester, Jr., Washington, D. C., with whom Robert S. Perkins and Walter J. Smith, Jr., Washington, D. C., were on the brief, for appellants.
    Gary Green, Washington, D. C., for appellees J. J. O’Donnell and Air Line Pilots Association.
    Frank F. Rox, Atlanta, Ga., with whom Robert Reed Gray, Washington, D. C., was on the brief, for appellee Delta Air Lines, Inc.
    Before EDWARDS, Circuit Judge for the Sixth Circuit, and TAMM and WILKEY, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   WILKEY, Circuit Judge:

These consolidated appeals arise out of the merger between Delta Air Lines, Inc., and Northeast Airlines, Inc. approved by the Civil Aeronautics Board 24 April 1972. Before us are appeals from dismissals by the District Court of actions raising various challenges to that order. Central to both appeals is the issue whether the District Court lacks jurisdiction to entertain a collateral attack upon an order of the Board approving an airline merger, subject to labor protective provisions, and upon the Board’s refusal to exercise its reserved jurisdiction to set aside an integrated seniority list negotiated by the parties’ freely chosen representatives. For reasons more fully explained below, we affirm the District Court.

1. BACKGROUND — THE DISTRICT COURT’S ACTIONS

A. Carey v. O’Donnell

W. Peter Carey and four other former Northeast Airlines pilots filed the class action below against the Air Line Pilots Association and its president, J. J. O’Donnell, alleging (1) invidious discrimination, (2) breach of duty of fair representation in the negotiation of a collective bargaining agreement, and (3) violations of the Railway Labor Act (“the RLA”). Plaintiffs sought declaratory and injunctive relief against the enforcement by the defendants of the agreement of 26 October 1972, wherein ALPA and Delta incorporated the integrated seniority list complained of.

Pursuant to Fed.R.Civ.P. 12(b)(1) and (6), defendants moved to dismiss the complaint on the grounds that

“(a) The Court lacks jurisdiction over the subject matter of the action; and
“(b) The Complaint is barred by a prior judgment; and
“(c) The Complaint fails to state a claim upon which relief can be granted.”

Alternatively, defendants moved for summary judgment “on the basis of the Complaint, and the affidavit and exhibits attached to [the] motion.”

The District Court dismissed the complaint on the authority of Northeast Pilots Master Executive Council v. O’Donnell and ALPA, and Hyland v. United Air Lines, Inc., holding that “exclusive jurisdiction over this controversy lies with the Civil Aeronautics Board . ” Plaintiffs’ motion for reconsideration was denied.

B. Chaudoin v. ALPA

George S. Chaudoin and three other former Northeast Airlines pilots filed the class action below against the Air Line Pilots Association and Delta Air Lines, Inc., alleging violations of the Age Discrimination in Employment Act of 1967 (“the ADEA”). Plaintiffs sought a declaration that the agreement of 26 October 1972 incorporating the integrated seniority list was in violation of the ADEA. Asserting the same grounds as in Carey, and that “the complaint is a collateral attack on an order of an Administrative Agency, the Civil Aeronautics Board, and it [sic] not permitted under the law,” defendants moved for dismissal of the complaint or in the alternative for summary judgment.

The District Court found that while the membership in the class below was somewhat smaller than that alleged in Carey, all members of the Chaudoin class were also members of the Carey class. The court also found that while the action in Carey was based on unfairness under the RLA and the action in Chaudoin on illegal age discrimination under the ADEA, each complaint questioned the validity of the integrated seniority list and therefore raised the same substantive issues. Accordingly, the court held that between plaintiffs and the defendant ALPA, the decision in Carey was res judicata. Between plaintiffs and the defendant Delta, the doctrine of collateral estoppel applied. The instant appeal is from those holdings.

II. EXCLUSIVE JURISDICTION OF THE BOARD AND THE COURTS OF APPEALS

Today in Northeast Master Executive Council v. CAB, we affirm the Board’s refusal to set aside the integrated seniority list and its holding that the list had been compiled in a “fair and equitable manner.” Our jurisdiction to review such orders derives from the Federal Aviation Act of 1958, which provides that orders of the Board “shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia,” and that “the court shall have exclusive jurisdiction to affirm, modify, or set aside the order complained of . . . .” Congress having thus provided a statutory scheme whereby matters of airline merger, including the fair and equitable integration of seniority lists, are vested in the Civil Aeronautics Board subject only to review in the courts of appeals, collateral attacks thereon are impermissible.

Appellants in the cases at bar have all had their day in court as contemplated by the statute. Viewed objectively, the actions below, although couched in terms of violations of the RLA and the ADEA, are essentially collateral attacks on the integrated seniority list as incorporated in the ALPA-Delta agreement of 26 October 1972, approved by the Civil Aeronautics Board, and reviewed by this court in Northeast Master Executive Council. We perceive no necessity for additional review, not contemplated by the Federal Aviation Act, in the District Court or any other forum.

The Seventh Circuit in Oling v. Air Line Pilots Ass’n rejected the claim, brought by pilots aggrieved by the merger of Capital and United Air Lines, that the District Court had jurisdiction over a suit charging discrimination and other violations under the RLA. Like the case at bar, Oling involved “a situation where the Board acting within its jurisdiction and authority gave its approval to the merger upon condition that certain labor protective provisions be complied with including that pertaining to seniority integration . . . . ” The court held that the allegations made in the District Court were essentially the same as those made before the Board, and as such constituted an impermissible collateral attack on the Board’s order.

Appellants over rely on the Board’s statement in Universal Airlines Company that it lacks jurisdiction over controversies of the type presented in these appeals, implying that the aggrieved pilots in that case had remedies available elsewhere. But when the Universal pilots’ action in District Court — based on a claim of breach of duty of fair representation — was dismissed for lack of subject matter jurisdiction, the Sixth Circuit in Kesinger v. Universal Airlines, Inc., affirmed, citing Oling, and noting that “the CAB is not the final word concerning its own jurisdiction . . . and certainly not the final word concerning the jurisdiction of United States district courts.”

We follow the result reached in Oling and Kesinger. Our decision in Southern Pilots Association v. CAB is not to the contrary. We said there that the Civil Aeronautics Board “has no jurisdiction to pass upon designations of bargaining agents or charges of discrimination in the representation function.” Yet that case, which involved an ordinary unfair representation claim based solely upon principles of labor law, did not arise in the context of an airline merger and subsequent compilation of an integrated seniority list. Conseauently, we had no occasion in Southern Pilots to consider whether the Board does have jurisdiction over certain labor matters arising out of its approval of an airline merger on conditions involving the fair and equitable negotiated settlement of those labor matters.

III. OTHER ISSUES

Since we adopt the rationale of the Sixth and Seventh Circuits and hold as we do that the District Court has no jurisdiction over the actions below, we need not reach the questions of res judicata and collateral estoppel presented in Chaudoin. While it may have found other valid grounds on which to dismiss, the District Court had no more jurisdiction to hear that action than it had to hear Carey.

Accordingly, the judgments appealed from are

Affirmed.

EDWARDS, Circuit Judge, concurs in the result in Nos. 73-1608 and 73-1783.

      . These appeals were consolidated by this court’s order of 1 August 1973.

      . Orders Nos. 72-5-73 and 72-5-74, Docket 23315. Reference is made to our opinion in the companion case, Northeast Master Executive Council v. CAB, 73-1595, for a more comprehensive background statement of the litigation which followed the Board’s order.

      . 45 U.S.C. § 151 et seq.

      . The pilots also sought “[cl]amages against the Air Line Pilots Association for its refusal to represent the plaintiffs and the destruction of their rights as flight deck crew members in the amount of Seventy-Five Million Dollars ($75,000,000.00).” Carey Joint Appendix [hereafter App.] at 8.

      . Carey App. at 9.

        . Carey App. at 10.

      . Civil No. 1911-72 (D.D.C., 4 October 1972).

      . 254 F.Supp. 367 (N.D.Ill.1966).

      . Carey App. at 88.

      . 29 U.S.C. § 621 et seq.

      . Plaintiffs also sought liquidated and punitive damages “in such amounts as the Court may determine.” Chaudoin App. at 6.

      . Chaudoin App. at 11.

      . Chaudoin App. at 255.

      . No. 73-1595.

      . 49 U.S.C. § 1301 et seq.

      . 49 U.S.C. § 1486(a).

      . 49 U.S.C. § 1486(d) (emphasis added).

      . See City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 334-337, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958) (exclusive jurisdiction of courts of appeals to review decisions of the Federal Power Commission precludes collateral attack. While the court of appeals decision had already become final in Tacoma, the Court’s language as to exclusivity would seem to apply whether appellate review had already been instituted or not. The petition to the Board to exercise its reserved jurisdiction, on which our review in Northeast Master Executive Council is based, was prior to the District Court actions in Carey and Chaudoin, although the petition to our court for review came a month after the District Court actions were begun.)

      . The plaintiff class in Carey is congruent with those Northeast personnel represented by the petitioner in Northeast Master Executive Council. The smaller plaintiff class in Chaudoin is composed of Northeast personnel, all of whom were members of the larger Carey class.

      . 346 F.2d 270 (7th Cir. 1965), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965).

      . 346 F.2d at 275.

      . Universal Airlines Company, Universal Airlines, Inc., First Grant Corp. and American Flyers Airline Corp. Order No. 71-9-24. Docket 22123.

      . 474 F.2d 1127 (6th Cir. 1973).

      . 474 F.2d at 1131.

      . 116 U.S.App.D.C. 283, 323 F.2d 288 (1963), cert. denied, 376 U.S. 954, 84 S.Ct. 966, 11 L.Ed.2d 972 (1964).

      . 116 U.S.App.D.C. at 285, 323 F.2d at 290 (footnote omitted).