711 F.2d 224 | D.C. Cir. | 1983
Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
Petitioners challenge on both substantive and procedural grounds an order of the Interstate Commerce Commission granting the application of Gollott & Sons Transfer & Storage, Inc., for a permit to transport specified types of personal property in interstate commerce as a motor contract carrier. Our analysis of petitioners’ claims reveals no reversible error, and we accordingly affirm.
I.The Factual Background
Gollott & Sons filed with the Commission an application, buttressed by two verified statements, for a permit to operate as a motor contract carrier to transport household goods, unaccompanied baggage, and used cars in interstate commerce under an agreement with Gulf Forwarding, Inc.
Solely on the basis of the application and accompanying verified statements, the Commission granted the application preliminarily and published a statement to that effect in the Federal Register.
In particular, petitioners contended that Gollott & Sons had neither assigned specified vehicles for the exclusive use of Gulf Forwarding over a definite period of time nor contracted to provide services necessary to satisfy any distinct needs Gulf Forwarding might possess, and that the applicant had therefore failed to qualify as a motor contract carrier under Section 10102(13)(B) of the Interstate Commerce Act.
After Gollott & Sons filed a statement in reply,
II. The Substantive Issues
Petitioners’ principal claim is that Gollott & Sons has not qualified for a permit as a motor contract carrier under Section 10102(13)(B) of the Interstate Commerce Act.
The Commission found that the contractual arrangement here at issue, by which Gollott & Sons accorded Gulf Forwarding preferential use of two designated vehicles for a period of one year, constituted sufficient dedication of these vehicles to satisfy the exclusive-use requirement of Section 10102(13)(B)(i). Petitioners, on their part, have advanced a literal and narrow reading of this provision, arguing in reliance thereon that the Commission’s construction is impermissibly expansive. We find the Commission’s outcome consistent with both its long-established interpretation of this section and the national transportation policy, as amended by the Motor Carrier Act of 1980,
it is the substance of the arrangements and not their form with which we are concerned. Where there is substantial evidence of dedication of vehicles to a shipper’s use under a continuing arrangement, and the facts demonstrate that this particular equipment will be constantly available to the contracting shipper in that arrangement, [backhaul-trip leasing is not inconsistent with motor contract carriage].34
This position later achieved its clearest and most conclusive articulation in Owens Contract Carrier Application,
does not, in our opinion, necessarily require that specific vehicles be used for one shipper to the exclusion of all other shippers; we believe that the assignment of specific vehicles to shippers is contemplated by section 203(a)(15) [now Section 10102(13)(B)(i) ] [if] the contracting shippers have primary access to such equipment, may view such equipment as their own, and need not compete for its use either among themselves or with others.36
Since Owens, this “primary access” doctrine has governed the Commission’s construction of the statutory provision here in dispute.
In Section 10(e) of the Administrative Procedure Act, Congress has mandated that “due account shall be taken of the rule of prejudicial error.”
Our decision to affirm is further bolstered by a related doctrine. Courts often have refused to strike down an agency ruling for allegedly inadequate supportive explanation when reasonably able to discern the path of the agency’s reasoning.
The order under review is accordingly
Affirmed.
. See Application of Gollott & Sons Transfer & Storage, Inc., for Motor Contract Carrier Certificate, filed Dec. 23, 1980, Docket No. MC-120472 (Sub-No. 6), Joint Appendix (J.App.) 4-33. Gulf Forwarding qualifies as a “freight forwarder” under 49 U.S.C. § 10102(8) (Supp. IV 1980).
. The record reveals both inconsistency and inconclusiveness as to the precise number of vehicles reserved by the applicant for the use of Gulf Forwarding. Gollott & Sons on some occasions specified three, not two, vehicles, see Application of Gollott & Sons Transfer & Storage, Inc., for Motor Contract Carrier Certificate, supra note 1, at 10, 27, J.App. 13, 31, and on others stated that there would be “at least two,” see id. at 2, 23, J.App. 5, 27. The applicant dissipated this confusion, however, by its reply statement, in which it asserted that exactly two vehicles would be placed at Gulf Forwarding’s disposal. See Reply of Gollott & Sons Transfer & Storage, Inc., Verified Statement of Tyrone Gollott, filed Mar. 31, 1981, Gollott & Sons Transfer & Storage, Inc., Contract Carrier Application, Docket No. MC-120472 (Sub-No. 6), at 4, J.App. 86. Because this statement was proper rebuttal, see note 26 infra, to the protestants’ claim that the applicant had not sufficiently identified the dedicated vehicles, see Protests of Global Van Lines, Inc., et al., filed Mar. 6, 1981, Gollott & Sons Transfer & Storage, Inc., Contract Carrier Application, supra, at 1, 4, 6, J.App. 66, 71, 73, we decline to utilize applicant’s failure to establish firmly the number of the dedicated vehicles in its application materials as ground for setting aside the order under review.
. See Application of Gollott & Sons Transfer & Storage, Inc., for Motor Contract Carrier Certificate, supra note 1, at 10-11, J.App. 13-14; Reply of Gollott & Sons Transfer & Storage, Inc., Verified Statement of Houston Gollott, filed Mar. 31, 1981, Gollott & Sons Transfer & Storage, Inc., Contract Carrier Application, Docket No. MC-120472 (Sub-No. 6), at 6, J.App. 105.
. See Reply of Gollott & Sons Transfer & Storage, Inc., supra note 3, at 3, J.App. 102. See note 26 infra.
. See Application of Gollott & Sons Transfer & Storage, Inc., for Motor Contract Carrier Certificate, supra note 1, at 23-24, 27-28, J.App. 27-28, 31-32.
. See 46 Fed.Reg. 9802, 9805 (1981).
. See Brief for Respondents at 42.
. See Protests of Global Van Lines, Inc., et al., supra note 2, J.App. 36-82.
. Id
. See id Petitioners have continued to argue that the Commission did not adequately take into account the fact that Gollott & Sons and Gulf Forwarding are commonly-controlled affiliates. Absent cause to ignore the separate corporate identities of these firms, however, reversal on this ground is unwarranted. See Schenley Distillers Corp. v. United States, 326 U.S. 432, 436-437, 66 S.Ct. 247, 249, 90 L.Ed. 181, 184 (1946).
. See Protests of Global Van Lines, Inc., et al, supra note 2, J.App. 36-82. More specifically, petitioners asserted before the agency, as they do here, that Gulf Forwarding’s need for as many as 300 shipments annually cannot ex-pectably be satisfied by only two vehicles. See Brief for Petitioners at 22-23. We do not consider it so unlikely, however, that two vehicles could move 300 shipments during one year as to warrant the conclusion that the Commission’s decision is either arbitrary or bereft of substantial supportive evidence in the record, especially in light of Gulf Forwarding’s statement that the services of Gollott & Sons would indeed be adequate for its needs, Reply of Gollott & Sons Transfer & Storage, Inc., supra note 2, at 7-8, J.App. 89-90.
. See Protests of Global Van Lines, Inc., et al, supra note 2, J.App. 36-82.
. Id. The section referred to is 5 U.S.C. § 557(c) (1976).
. See Protests of Global Van Lines, Inc., et al, supra note 2, J.App. 36-82. Petitioners argued before the agency’s Review Board that disallowance of an evidentiary hearing and leave to take depositions would transgress their Fifth Amendment right to due process of law. Id.' In addition, petitioners moved to strike the reply statement of Gollott & Sons on the ground that it contained evidence inadmissible under governing procedural regulations. See Brief for Petitioners at 4. The latter motion apparently was filed after the Review Board had already promulgated its initial decision. See Brief for Respondents at 13; see also note 26 infra.
. Reply of Gollott & Sons Transfer & Storage, Inc., supra notes 2, 3, J.App. 83-119.
. Gollott & Sons Transfer & Storage, Inc., Contract Carrier Application, Docket No. MC-120472 (Sub-No. 6) (initial decision) (Apr. 3, 1981), J.App. 120-124 [hereinafter cited as Initial Decision ].
. Id. at 2, J.App. 122.
. Id. at 2-3, J.App. 122-123.
. Id. at 1, J.App. 121. The Commission at no time during administrative proceedings denied, or even acknowledged, the protestants’ motion to strike applicant’s reply statement. See also note 14 supra and note 26 infra.
. Appeal of Protestants Global Van Lines, Inc., et al., filed May 6, 1981, Goilott & Sons Transfer & Storage, Inc., Contract Carrier Application, Docket No. MC-120472 (Sub-No. 6), J.App. 125-138.
. Gollott & Sons Transfer & Storage, Inc., Contract Carrier Application, Docket No. MC-120472 (Sub-No. 6) (final decision) (June 11, 1981), J.App. 139-141.
. Aero Mayflower Transit Co. v. ICC, No. 81-1951 (D.C.Cir.) (petition for review) (filed Sept. 3, 1981).
. 49 U.S.C. § 10J02(13)(B) (Supp. IV 1980). Petitioners have argued that the applicant’s services do not meet the “distinct needs” test of § 10102(13)(B)(ii), 49 U.S.C. § 10102 (13)(B)(ii) (Supp. IV 1980), relying particularly on ICC v. J-T Transport Co., 368 U.S. 81, 90-93, 82 S.Ct. 204, 210-212, 7 L.Ed.2d 147, 154 — 157 (1961). The Commission concluded that Gollott & Sons had survived the test, Initial Decision, supra note 16, at 2, J.App. 122, but we do not resolve that matter here. Our holding that the Commission correctly determined that Gollott & Sons satisfied the exclusive-use test is itself sufficient basis for affirmance.
. 49 U.S.C. § 10102(13)(B)(i) (Supp. IV 1980).
. Id. § 10102(13)(B)(ii).
. Pub.L. No. 96-296, 94 Stat. 793 (1980). Petitioners say also that Gollott & Sons did not identify the term of the contract in its application and supportive documents, and that it therefore failed to meet the requirement that a motor contract carrier must dedicate vehicles to the exclusive use of a shipper over a definite period of time. See Brief for Petitioners at
The reply statement may not contain new evidence. It shall only rebut or further explain matters previously raised.
49 C.F.R. § 1100.247(A)(m)(2), 45 Fed.Reg. 45534, 45541 (1980).
Courts normally will defer substantially to an agency’s interpretation of its own regulations. See United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48, 56 (1977); INS v. Stanisic, 395 U.S. 62, 72, 89 S.Ct. 1519, 1525-1526, 23 L.Ed.2d 101, 109 (1969); Thorpe v. Housing Auth., 393 U.S. 268, 276, 89 S.Ct. 518, 523, 21 L.Ed.2d 474, 480-481 (1969); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, 625 (1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700, 1702 (1945). That principle is inapplicable here, however, because the Commission did not undertake to interpret the rule in question during any stage of the administrative proceedings. Nevertheless, we agree with the construction offered by the Commission before this court. When petitioners protested the preliminary grant, they claimed an application deficiency that entailed nonsatisfaction of a statutory prerequisite to motor contract carrier status. See Protests of Global Van Lines, Inc., et al., supra note 2, at 4, J.App. 71. This protest rendered applicant’s disclosure of the contract term in its responsive statement proper rebuttal material under the rule. ■
.See, e.g., CBS v. FCC, 453 U.S. 367, 382, 101 S.Ct. 2813, 2823, 69 L.Ed.2d 706, 720 (1981); FCC v. WNCN Listeners Guild, 450 U.S. 582, 598, 101 S.Ct. 1266, 1276, 67 L.Ed.2d 521, 536 (1981); Miller v. Youakim, 440 U.S. 125, 144 n. 25, 99 S.Ct. 957, 969 n. 25, 59 L.Ed.2d 194, 209 n. 25 (1979); New York State Dep’t of Social Servs. v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516-2517, 37 L.Ed.2d 688, 699 (1973); CBS v. Democratic Nat’l Comm., 412 U.S. 94, 121, 93 S.Ct. 2080, 2096, 36 L.Ed.2d 772, 794 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371, 384 (1969).
. See, e.g., EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 600 n. 17, 101 S.Ct. 817, 823 n. 17, 66 L.Ed.2d 762, 770 n. 17 (1981); National Muffler Dealers Ass’n v. United States, 440 U.S. 472, 477, 99 S.Ct. 1304, 1307, 59 L.Ed.2d 519, 525 (1979); General Elec. Co. v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411, 50 L.Ed.2d 343, 358 (1976); Udall v. Tallman, supra note 26, 380 U.S. at 16, 85 S.Ct. at 801, 13 L.Ed.2d at 625.
. See, e.g., CBS v. FCC, supra note 27, 453 U.S. at 382, 101 S.Ct. at 2823, 69 L.Ed.2d at 720; EEOC v. Associated Dry Goods Corp., supra note 28, 449 U.S. at 600 n. 17, 101 S.Ct. at 823 n. 17, 66 L.Ed.2d at 770 n. 17; National Muffler Dealers Ass’n v. United States, supra note 28, 440 U.S. at 477, 99 S.Ct. at 1307, 59 L.Ed.2d at 525; Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 41 n. 27, 97 S.Ct. 926, 949 n. 27, 51 L.Ed.2d 124, 153 n. 27 (1977).
. National Muffler Dealers Ass’n v. United States, supra note 28, 440 U.S. at 477, 99 S.Ct. at 1307, 59 L.Ed.2d at 525; International Bhd. of Teamsters v. Daniel, 439 U.S. 551, 566 & n. 20, 99 S.Ct. 790, 800 & n. 20, 58 L.Ed.2d 808, 820 & n. 20 (1979); Piper v. Chris-Craft Indus., Inc., supra note 29, 430 U.S. at 41 n. 27, 97 S.Ct. at 949 n. 27, 51 L.Ed.2d at 153 n. 27. Of course, even if an agency interpretation is not contemporaneous with enactment of the statute, is of short duration, or is inconsistent with prior agency promulgations, the thoroughness and validity of the agency’s reasoning may entitle the interpretation to some weight. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124, 129 (1944). So it is that, even had the Commission never promulgated the primary-access doctrine that we invoke in support of affirmance, see text at notes 31-38 infra, we would yet be constrained to affirm its decision out of deference to its reasoned attempt to construe § 10102(13)(B)
. Docket No. MC-109307 (Sub-No. 13), 83 M.C.C. 821 (1960), as reported in Interstate Express, Extension — Schilling, Montana, Docket No. MC-108973 (Sub-No. 6), 86 M.C.C. 637, 638-639 (1961).
. Kansas-Arizona Motor Express, Conversion Proceeding, supra note 31, as reported and quoted in Interstate Express, Extension— Schilling, Montana, supra note 31, at 639.
. Docket No. MC-111442 (Sub-No. 6), 91 M.C.C. 113 (1962).
. Id. at 121. See also Standard Forwarding Co., Extension — 7owa, Docket No. MC-16536 (Sub-No. 4), 110 M.C.C. 459, 466 (1969); Samack, Inc., Contract Carrier Application Segundo, Docket No. MC-119193 (Sub-No. 1), 105 M.C.C. 524, 527 n. *** (1967); Francis A. Aubrey Extension — Milwaukee and New York City, Docket No. MC-110884 (Sub-No. 9), 100 M.C.C. 652, 656-657 (1966).
. Docket No. MC-125230, 100 M.C.C. 34 (1965).
. Id. at 39.
. Several Commission decisions have expressly recognized the primary-access doctrine, see, e.g., Conalco Contract Carrier, Contract Carrier Application, Docket No. MC-138279, 125 M.C.C. 361, 367 (1976); Continental Contract Carrier Corp. Extension — Modification of Permit, Docket No. MC-124796 (Sub-No. 55), 121 M.C.C. 882, 900 (1975); Dudden Elevator, Extension — Iron and Steel Articles, Docket No. MC-133436 (Sub-No. 14), 119 M.C.C. 318, 321-323 (1974); Interstate Contract Carrier Corp. Extension — Indianapolis Paper, Docket No. MC-134599 (Sub-No. 25), 120 M.C.C. 191, 196 (1972). Others have expressly affirmed the reasoning of Owens, though without specific reference to the doctrine. See, e.g., Samack, Inc., Contract. Carrier Application Segundo, supra note 34, 105 M.C.C. at 527 n. ***; Francis A. Aubrey Extension — Milwaukee and New York City, supra note 34, 100 M.C.C. at 657.
. Respondents apparently have conceded that the decision here challenged departs from prior agency practice insofar as it holds that the exclusive-use test does not preclude a contractual arrangement under which other shippers’ freight might be moved in the same vehicles as Gulf Forwarding’s when excess space permits. See Brief for Respondents at 25-26. Our review of relevant Commission precedent, however, reveals that it is far from clear that the decision under review traverses agency practice in this regard. Although the Commission, in Motor Haulage Company, Contract Carrier Application, Docket No. MC-31214, 46 M.C.C. 107, 124 (1946), stated unambiguously that haulage is not exclusive if goods of two or more shippers are transported at the same time in the same vehicles, that case involved interpretation of a permit limitation rather than construction of legislation. Indeed, Congress did not enact the statutory provision here at issue — § 10102(13)(B) — until 1957, eleven years after the Commission decided Motor Haulage, see Pub.L. 85-163, 71 Stat. 411 (1957), codified as amended at 49 U.S.C. § 10102(13)(B) (Supp. IV 1980). The other two cases cited by the Commission are similarly inconclusive. While the Commission in Owens Contract Carrier Application, supra note 35, acknowledged Motor Haulage without overruling it, id. at 38-39, the agency at the same time indicated that the case cannot be read as establishing the broad proposition that the exclusive-use test “necessarily require[s] that specific vehicles be used for one shipper to the exclusion of all other shippers,” id. at 39. Furthermore, in Armored Carrier Corp. Extension— Wisconsin, Docket No. MC-112750 (Sub-No. 127), 98 M.C.C. 314, 317 (1965), the Commission reiterated the Motor Haulage position without indicating whether the contracting shipper in the case before it nevertheless possessed primary access to the dedicated vehicles. Armored Carrier, accordingly, is of uncertain relevance to the case at bar, in which Gulf Forwarding clearly has primary access to the designated vehicles as preferential user. Taken on their own terms, then, these three cases do not, we believe, reveal holdings of sufficient clarity to justify the post hoc conclusion of the Commission’s counsel that they interpreted the motor contract carrier provisions of the Interstate Commerce Act to preclude freight intermixture under all circumstances. Indeed, that counsel’s reading of these cases places them in inexplicable contradiction with the primacy-access doctrine, to which the Commission has long and otherwise consistently adhered, only confirms our belief that the reading accords the cases unwarranted significance.
Even if, however, we accepted the argument that the decision under review charted new territory by granting the application despite the potential for carriage of other shippers’ freight with that of Gulf Forwarding on dedicated vehicles, we still would affirm the Commission. It is well-settled that an agency is not bound to adhere strictly to the doctrine of stare decisis, but rather may modify or overturn prior norms or practices in line with evolving perceptions of the public interest, provided the agency recognizes the departure and justifies the new position by reasoned explanation. See EDF v. Costle, 211 U.S.App.D.C. 313, 327, 657 F.2d 275, 289 (1981); Hatch v. FERC, 210 U.S.App.D.C. 110, 119, 654 F.2d 825, 834 (1981); International Detective Serv. v. ICC, 198 U.S.App.D.C. 334, 345 n. 23, 613 F.2d 1067, 1078 n. 23 (1979); Food Marketing Inst. v. ICC, 190 U.S.App.D.C. 388, 393, 587 F.2d 1285, 1290 (1978); American Public Gas Ass’n v. FPC, 186 U.S.App.D.C. 23, 38, 567 F.2d 1016, 1031 (1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); Greyhound Corp. v. ICC, 179 U.S.App.D.C. 228, 230, 551 F.2d 414, 416 (1977); CBS v. FCC, 147 U.S.App.D.C. 175, 183, 454 F.2d 1018, 1026 (1971); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 394, 444 F.2d 841, 852 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971); FTC v. Crowther, 139 U.S.App.D.C. 137, 140-141, 430 F.2d 510, 513-514 (1970); New Castle Cty. Airport Comm. v. CAB, 125 U.S.App.D.C. 268, 270, 371 F.2d 733, 735 (1966), cert. denied, 387 U.S. 930, 87 S.Ct. 2052, 18 L.Ed.2d 991 (1967). See also Atchison, T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350, 362 (1973); Secretary of Agriculture v. United States, 347 U.S. 645, 652-653, 74 S.Ct. 826, 831, 98 L.Ed. 1015, 1023-1024 (1954); FCC v. WOKO, Inc., 329 U.S. 223, 228, 67 S.Ct. 213, 216, 91 L.Ed. 204, 208 (1946). In the instant case, the Commission acknowledged petitioners’ claim of inconsistency between its decision and prior agency precedent, see Initial Decision, supra note 16, at 2, J.App. 122, but then, by reference to the Motor Carrier Act of 1980, justified its conclusion that Gollott & Sons qualified as a motor contract carrier. Id. Because this legislation amended the national transportation policy to include the promotion of equipment and energy efficiencies, and, implicitly, because the contract by which Gulf Forwarding acquired rights as preferential user minimized underutilization of the two designated vehicles, id., the Commission refused to condemn such arrangements by technical and rigid construction of the exclusive-use test. In light
. Pub.L. No. 96-296, 94 Stat. 793 (1980).
. 49 U.S.C. § 10101(a)(7)(C) (Supp. IV 1980).
. See Initial Decision, supra note 16, at 2, J.App. 122.
. Brief for Petitioners at 17.
. 49 U.S.C. § 10101(a) (Supp. IV 1980).
. Id. § 10101(b).
. H.R.Rep. No. 1069, 96th Cong., 2d Sess. II-12 (1980); accord, S.Rep. No. 641, 96th Cong., 2d Sess. 4 (1980), U.S.Code Cong. & Admin. News 1980, pp. 2283, 2293.
. In addition to its inquiry to determine whether an applicant qualifies under § 10102(13)(B), 49 U.S.C. § 10102(13)(B) (Supp. IV 1980), the Commission must make various other determinations before it grants a permit to operate as a motor contract carrier. Among them are that an award would be consistent with the public interest and national transportation policy, id. § 10923(a)(2), and that the applicant is “fit, willing, and able” to furnish the proposed services compliably with applicable statutes and regulations, id. § 10923(a)(1). Furthermore, to assist the Commission in ascertaining whether grant of the application would promote the public interest, Congress has required the agency to consider the nature of the intended transportation, id. § 10923(b)(3)(A), the injury inflicted upon protesting carriers by grant of the application, id. § 10923(b)(3)(B), the impact of a denial of the application upon contracting parties, id. § 10923(b)(3)(C), and the changing needs of contracting shippers, id. § 10923(b)(3)(D). In the case at bar, although petitioners contended before the agency that the preliminary grant should be set aside on the grounds that the applicant could not provide adequate transportation services and that neither the public interest nor the national, transportation policy would be fostered by the award, see Protests of Global Van Lines, et al, supra note 2, J.App. 36-82, they have not pressed these claims here. We find, in any event, that the agency’s decision-making on this score has not been legally deficient. The Commission assayed the factors enumerated in § 10923(b)(3), 49 U.S.C. § 10923(b)(3) (Supp. IV 1980). See Initial Decision, supra note 16, at 2, J.App. 122. Moreover, its determinations that the applicant is able to provide the proposed services and comply with applicable law, id. at 3, J.App. 123, and that the public interest and the national transportation policy sanction the award, id. at
. Petitioners also maintain that, in light of the difficult burden of proof placed upon them by the Commission to demonstrate that Gollott & Sons does not merit a permit to operate as a motor contract carrier, the Commission’s denial of their petitions for an evidentiary hearing and leave to depose the applicant’s witnesses in order to discover facts peculiarly within the applicant’s knowledge infringes petitioners’ Fifth Amendment right to due process of law. . See Brief for Petitioners at 27-30. Since, however, petitioners have not identified any material facts, as yet unrevealed, that they have some reason to suspect might be uncovered at an evidentiary hearing or through depositions, we do not further consider this contention.
. 5 U.S.C. § 557(c) (1976), providing in pertinent part:
All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of ... findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record ....
. 5 U.S.C. § 706 (1976). This court has often invoked this provision. See Consolidated Gas Supply Corp. v. FERC, 196 U.S.App.D.C. 57, 62-63, 606 F.2d 323, 328-329 (1979); Unification Church v. Attorney General, 189 U.S.App. D.C. 92, 95, 581 F.2d 870, 873, cert. denied, 439 U.S. 828, 99 S.Ct. 102, 58 L.Ed.2d 122 (1978); Doe v. Hampton, 184 U.S.App.D.C. 373, 385-386, 566 F.2d 265, 277-278 (1977); Delta Air Lines v. CAB, 184 U.S.App.D.C. 107, 113, 564 F.2d 592, 598 (1977); Chrysler Corp. v. FTC, 182 U.S.App.D.C. 359, 364, 561 F.2d 357, 362 (1977); Greater Boston Television Corp. v. FCC, supra note 38, 143 U.S.App.D.C. at 393, 444 F.2d at 851; Braniff Airways v. CAB, 126 U.S.App.D.C. 399, 411-412, 379 F.2d 453, 465-466 (1967); Brown Telecasters v. FCC, 110 U.S.App.D.C. 127, 128 & n. 3, 289 F.2d 868, 869 6 n. 3, cert. denied, 368 U.S. 916, 82 S.Ct. 196, 7 L.Ed.2d 131 (1961). Although we apply the prejudicial-error rule “gingerly, if at all,” Yiu Fong Cheung v. INS, 135 U.S.App.D.C. 244, 248, 418 F.2d 460, 464 (1969), in cases involving fundamental procedural rights, see Doe v. Hampton, supra, 184 U.S.App.D.C. at 385 n. 29, 566 F.2d at 277 n. 29; Greater Boston Television Corp. v. FCC, supra, 143 U.S.App.D.C. at 393 n. 16, 444 F.2d at 851 n. 16, we think the case at hand does not qualify on this score.
.See Bowman Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974); Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206, 1219 (1945); RKO General v. FCC, 216 U.S.App.D.C. 57, 63, 670 F.2d 215, 221 (1981), cert. denied, 456 U.S. 927, 1119, 102 S.Ct. 1974, 2931, 72 L.Ed.2d 442, 73 L.Ed.2d 1331 (1982); International Detective Serv. v. ICC, supra note 38, 198 U.S.App.D.C. at 344, 613 F.2d at 1077; EDF v. EPA, 167 U.S.App.D.C. 71, 83, 510 F.2d 1292, 1304 (1975); Greater Boston Television Corp. v.