302 F. Supp. 257 | N.D. Ga. | 1969
Plaintiffs in this action are carriers seeking to enjoin, set aside, and annul orders of the Interstate Commerce Commission (hereinafter referred to as the ICC or the Commission) granting temporary authority to defendant-intervenor Equipment Transport to transport steel over irregular routes from points in South Carolina to all states east of the Mississippi, including Louisiana.
Plaintiffs Superior Trucking and Home Transportation are Georgia corporations and plaintiff Moss Trucking is a North Carolina corporation, all of whom transport steel over single and interline service within the area now served by Equipment Transport under its temporary authority. Prior to receipt of temporary authority, Equipment Transport’s predecessor, Heavy Duty Haulers, had been operating for some time under the incorrect assumption that it had the authority to transport steel to the points now served under its temporary authority. The ICC interpreted Heavy Duty’s operating authority to exclude the transport of steel and issued a cease-and-desist order prohibiting the continued transport of that commodity. Heavy Duty Haulers, Inc. Investigation of Operations, 99 M.C.C. 578. Heavy Duty Haulers obtained a temporary restraining order pendente lite, thus staying the effect of the cease-and-desist order pending review. During the period of review, Heavy Duty continued to ship steel. While the matter was pending before a United States district court in South Carolina, Equipment Transport acquired Heavy Duty Haulers. After the district court upheld the Commission’s cease-and-desist order, Heavy Duty Haulers, Inc. v. United States, 293 F.Supp. 879 (D.S.C., 1968), Equipment Transport obtained another temporary restraining order pending a hearing on a motion for a stay pending further Commission action. The motion for a stay was denied November 21, 1968, Heavy Duty Haulers, Inc. v. United States, 293 F.Supp. 887 (D.S.C., 1968), and the Commission’s order became final.
On November 12, 1968, shortly before the order became final, Equipment Transport filed its application for the temporary authority, and included statements of support from thirteen shippers. Notice of their application was published in the Federal Register on November 22, 1968, and protests were filed
While the legal path leading up to this point may seem long and winding, the issue before us is clear. The sole question is whether, under proper standards, the Commission’s grant of temporary operating authority to Equipment Transport to ship steel in the area in question, is supportable on judicial review.
I. ADEQUATE EVIDENCE IN THE RECORD TO SUPPORT ICC ORDER
The standard of review of temporary authority orders has caused a great deal of judicial consternation. A triad of statutes apply in making the determination of the proper scope of review. First, § 210a (a) of the Transportation Act, § 310a(a) of Title 49, provides, in relevant part, that:
“(a) To enable the provision of service for which there is an immediate and urgent need to a point or points or within a territory having no carrier service capable of meeting such need, the Commission may, in its discretion and without hearings or other proceedings, grant temporary authority for such service by a common carrier or a contract carrier by motor vehicle, as the case may be.” (Emphasis added.)
Second, § 10 of the Administrative Procedure Act, 5 U.S.C. § 701(a), which sets out those administrative situations subject to judicial review, precludes re
“(a) This chapter applies, according to the provisions thereof, except to the extent that—
(1) statutes preclude judicial review ; or
(2) agency action is committed to agency discretion by law.”
Last, 28 U.S.C. § 1336 seems to confer jurisdiction on courts to review any orders of the Commission, by providing that:
“(a) Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission.”
It is clear that the phrase “except as otherwise provided by Act of Congress” does not refer to § 10 of the Administrative Procedure Act, but rather was “inserted because of similar cases of which the courts of appeals are given jurisdiction.” Reviser’s Note to § 1336.
Faced with these seemingly conflicting statutes, some courts have held that they are without power to review the Commission’s decisions on temporary authority questions. They reason that § 10 of the Administrative Procedure Act precludes judicial review of decisions committed, as are temporary authority decisions under § 310a, to agency discretion. See, e.g., J-T Transport Co. v. United States, 191 F.Supp. 593 (W.D. Mo., 1961); Union Cartage Company v. United States, 244 F.Supp. 1005 (D.Mass., 1965). However, even those cases might permit judicial review of any action by the Commission outside its jurisdiction. As the Court in J-T Transport stated:
“So long as Division 1 [of the ICC] did not exceed its jurisdiction, its reason for ‘revoking’, i.e. its denial of JT’s application for temporary authority, is not subject to judicial review for an error either of fact or law which induced it to reach that conclusion.” 191 F.Supp. at 600.
Despite this line of eases, it is generally accepted today that because of the grant of jurisdiction under 28 U.S.C. § 1336, Hussey v. United States, 271 F. Supp. 650 (N.D.Cal., 1967) and the resultant equitable power left to the district courts, even over temporary authority orders, Roadway Express, Inc. v. United States, 263 F.Supp. 154 (N.D.Ohio, 1966) the federal district court in a case such as ours, may exercise judicial review. Three “I” Truck Lines, Inc. v. Interstate Commerce Commission, 246 F.Supp. 410 (N.D.Iowa, 1965). Indeed, the Government and the Commission do not dispute the Court’s power of judicial review here. As they state in their joint brief, “Plaintiffs argue at some length that Commission temporary authority decisions are subject to judicial review. * * * With this we do not quarrel.” (Defendant’s Brief, at pp. 3-4.)
While the Court will exercise judicial review, our scope of review is limited. Plaintiffs cite no authority, nor do we know of any, to support their proposition that the Commission’s temporary authority order must be supported by substantial evidence to be upheld. As one court put it, in a closely related context:
“ * * * [A] 11 of the reported cases involving a review of a temporary authority, such as the one involved in this ease, have held that the Commission’s findings do not have to be based upon substantial evidence, but that it is sufficient if there is any evidence to - support the exercise of discretion * * Merchants Delivery Co. v. United States, 253 F. Supp. 596, 597 (W.D.Mo., 1966).
Indeed, the very purpose of § 310a(a) is to provide summary procedures for the disposition of applications for temporary authority, as shown by the fact that the ICC may act without “hearings or other proceedings.” From the statutory latitude given the ICC under § 310a(a), and the temporary nature of the decision, it seems obvious that grants of temporary authority should
Plaintiffs cite Acme Cartage Co. v. United States, 290 F.Supp. 453 (W.D.Wash., 1968), and Black Ball Freight Service v. United States, 298 F.Supp. 1006 (W.D.Wash., 1969), for the proposition that both urgent need and a lack of presently existing service to meet the need must be supported by substantial evidence before the Commission’s discretionary power is invoked. In Acme Cartage the Court said that the ICC may exercise its discretion:
“* * * [0]nly when both of the two conditions specified in the statute [49 U.S.C. § 310a(a)] are shown, i.e. (1) ‘an immediate and urgent need * * * [for] service’ (2) ‘within a territory having no carrier service capable of meeting such need.’ When both conditions exist, the statute provides for wide latitude in the exercise of the discretion ICC may exercise in granting temporary authority applications. However, before ICC can exercise that discretion it is clear from the language of the statute that concurrent existence of both conditions (1) and (2) is mandatory and absent either one of the conditions ICC has neither power nor discretion to grant temporary authority applications.”
Taken as plaintiffs seem to interpret this language, it would imply a different, and higher, standard of review for the two crucial components of the Commission’s temporary authority grant, than for review of the final discretionary decision. Surely Acme Cartage and Black Ball could not create this anomalous situation. Nowhere in either opinion does the Court state that substantial evidence is necessary to establish an urget and unmet need. In both cases the Court confronted a situation in which no evidence existed in the record to support the Commission’s findings. Given such a situation, of course, the temporary authority grant was indefensible; to rule otherwise would be to vest in the Commission unbridled discretion in the area of temporary authorities. In the instant case, on the other hand, it cannot be seriously argued that there is a complete absence of evidence to support the Commission’s findings. Thus, not only are the plaintiffs’ citations distinguishable, but they do not establish a substantial evidence test for granting of temporary authority.
Under the test we follow, we hold that the Commission’s finding that there was an “immediate and urgent need” for Equipment Transport’s service “within a territory having no carrier service capable of meeting such need”, is supported by some evidence in the record.
First, the Commission had before it the fact that a service maintained for several years by Equipment Transport and its predecessor was suddenly terminated by a final decision on the Commission’s cease-and-desist order prohibiting further transport of steel. Therefore, numerous shippers who had sent steel with Equipment Transport suddenly found themselves without their services. The Commission could reasonably have determined that this situation alone created an “immediate and urgent need” for service. The Commission’s regulations state as much; as 49 C.F.R. § 1131.4(b) (2) puts it, in relevant part:
*261 “(2) Immediate and urgent need. An immediate and urgent need justifying a grant of temporary authority will be determined to exist only where it is established that there is or soon will be an immediate transportation need which reasonably cannot be met*262 by existing carrier service. Such a showing may involve * * * a discontinuance of existing service.
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Having decided that there was sufficient evidence in the record to support the Commission’s decision, the Court’s next inquiry is whether the ICC acted arbitrarily and capriciously, outside its jurisdiction, or committed any errors of law. Plaintiffs make several allegations in this regard. First, they contend that the Commission ignored its own regulations in approving Equipment Transport’s application. They urge that by failing to meet the requirements of 49 C.F.R. 240.2(c) (8), (9), neither urgent need nor unavailability of existing service could be established under 49 U.S.C. § 310a(a). Plaintiffs feel that 49 C.F. R. 240.2(c) (8), (9) is “mandatory” and binding on the ICC. This regulation provides, in relevant part, that:
“Each application for temporary authority must be accompanied by a supporting statement(s) designed to establish an immediate and urgent need for service which cannot be met by existing carriers. * * * Any such supporting statements must contain at least the following information: ******
“(8) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts.
“(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal.”
There is a great deal of doubt whether the regulation in question is binding on the Commission or merely states general guidelines for the Commission’s own benefit. It has often been said that an administrative agency is not a slave of its own rules, in the absence of injury or substantial prejudice to the complaining party, Sun Oil Co. v. Federal Power Commission, 256 F.2d 233 (5th Cir., 1958), cert. denied, 358 U.S. 872, 79 S.Ct. 111, 3 L.Ed.2d 103 (1958), and that an agency may relax or modify its rules, absent prejudice. National Labor Relations Board v. Grace Co., 184 F.2d 126 (8th Cir., 1950); National Labor Relations Board v. Monsanto Chemical, 205 F.2d 763 (8th Cir., 1953). One court has actually stated, by way of dictum, that 49 C.F.R. 240.2(c) is merely designed to facilitate the Commission’s handling of request for temporary authority. As the Court put it;
“A reading of these rules indicate that their purpose is to facilitate the Commission’s handling of requests for temporary authority. The rules reflect no intention to reduce or relinquish its statutory discretionary power to issue certificates of temporary authority.” Roadway Express, Inc., supra, 263 F.Supp. at 159.
There is a great deal of logic to this position. The regulations were designed to facilitate the Commission’s findings of an urgent and unmet need; if facts supporting these findings exist in the record, the fact that the regulations were not strictly followed should be irrelevant. It is particularly inappropriate to strictly bind an agency to regulations made under a statute designed to encourage summary procedures. The Commission’s regulations should not be read to impose more rigid standards on the grant of a temporary authority than the summary procedures envisioned by § 310a(a) of the statute. Moreover, the detailed nature of the information requested in subsections (8) and (9) of the regulation would, in effect, require shippers to keep continuous records of every call they made to carriers, if the plaintiffs are correct in their interpretation. This could hardly be expected of shippers, especially when there would be no reason to think in advance that such detailed records would ever be of any use. Of course, it would help the ICC if such data were available, and it is for this reason that they have included such a request in their regulations. But to
It is true that there are numerous cases stating clearly that agency regulations have the force of law and are binding on the agency as well as on the applicants acting under the regulations. See, e.g., Mississippi Valley Barge Line Co. v. United States, 252 F.Supp. 162 (E.D.Mo., 1966), dismissed, Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co., 385 U.S. 32, 87 S.Ct. 195, 17 L.Ed.2d 31 (1966); Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 226 F.2d 35 (1955). However, these decisions found either substantial prejudice to one party from the agency’s failure to follow its rules or a tainted proceeding due to wilful disregard of crucial regulations. In our ease, however, there can be no prejudice to the plaintiffs from the Commission’s alleged failure to follow subsections (8) and (9), since there is some evidence in the record to support the Commission’s decision. Resolution of this thorny issue may lie in deciding whether or not 49 C.F.R. 240.2(c) is an interpretative or a legislative regulation. See Davis, Administrative Law Treatise, § 5.03, at 299.
We need not resolve this problem, for we find substantial compliance with the regulations. Almost without exception the shippers’ supporting statements include some indication of their inability to receive prompt and adequate equipment and service from plaintiffs. As previously noted, many specifically mention efforts to contact some or all of the plaintiffs. See, e.g., statements of Congaree, Owen Joist, Owen Steel, Dixiana, Owen Electric, Kline Iron and Steel, and Allcraft. Moreover, Congaree, Owen Joist, and Owen Steel give approximate or specific dates upon which requests for service were made. This evidence in the record clearly constitutes reasonable compliance with subsections (8) and (9). To require anything more would be to impose an unrealistic burden on both the Commission’s summary procedures, under 49 U.S.C. § 310a(a), and on the supporting shippers. Our conclusion is supported.by Estes Express Lines v. United States, 292 F.Supp. 842 (E.D.Va., 1968), aff’d, 394 U.S. 718, 89 S.Ct. 1469, 22 L.Ed.2d 673 (1969), per curiam. There the plaintiffs, seeking to annul orders of the Commission granting Railway Express a temporary authority, urged that the shippers’ statements in support of Railway Express’ application lacked the requisite particularity under 49 C.F.R. 240.2(c) (8), (9). The Court held that the regulation was reasonably satisfied when the shippers explained why they made no effort to obtain express service from existing carriers and that the statements were sufficiently particularized to alert the Commission to the continuing needs of the shippers. Yet the statements accepted in that case were much less explicit than those before the Commission in the instant action.
Plaintiffs urge that Acme Cartage, supra, and Black Ball, supra, demand a different result. Both those cases found that the ICC acted arbitrarily by ignoring compliance with subsections (8) and (9) without good cause. However, as seen earlier, there was no evidence in either case that any shipper had requested service from any plaintiff, and therefore the statutory requirements of 49 U.S.C. § 310a(a) were unmet. The Court in those cases merely
Plaintiffs also allege that the Commission acted arbitrarily by granting the temporary authority, despite Equipment Transport’s “long history of unlawful operations.” As earlier shown, Equipment Transport’s predecessor had been transporting steel for many of these shippers under the assumption it was authorized to do so. It was not until November, 1968, that 'Equipment Transport was finally prohibited from shipping steel, due to various stays of the ICC’s cease-and-desist order. During the period that the order was stayed, Equipment Transport’s actions were permissible. Plaintiffs contend that 49 C.F.R. 240.4(b) (8) bars acceptance of Equipment Transport’s application for temporary authority, by providing, in relevant part, that:
“(8) General bases for disapproval.
Applications for temporary authority may be denied for the following reasons:
******
(ii) Unfitness of the applicant.” (Emphasis added.)
The language of § 240.4(b) (8) is permissive and merely permits the Commission to deny an application for temporary authority on a finding of unfitness. In our case, there is no reason to think that the previous activities of Equipment Transport show such bad conduct as to merit a finding of unfitness. The transport of steel was permissible during the pendency of the case in the courts and the ultimate adjudication against the predecessor of Equipment Transport does not in and of itself establish unfitness. The Commission was possessed of all the facts here but it rejected plaintiffs’ contentions. There is no reason in the record to upset its findings.
Plaintiffs’ last contention is that the Commission acted arbitrarily by violating 49 U.S.C. § 17(8), which provides that:
“Where application for rehearing, reargument, or reconsideration of a decision, order or requirement of a division an individual Commissioner, or board is made in accordance with the provisions of this section and the rules and regulations of the Commission, and the decision, order, or requirement has not yet become effective, the decision, order, or requirement shall be stayed or postponed pending disposition of the matter by the Commission or appellate division; but otherwise the making of such an application shall not excuse any person from complying with or obeying the decision, order, or requirement, or operate to stay or postpone the enforcement thereof, without the special order of the Commission.”
Plaintiffs filed motions to reconsider the Commission’s initial grant of temporary authority and contend that the grant should have been stayed until their petitions for reconsideration were acted upon. There are two answers to this contention. First, the issue is mooted by the April 4, 1969, decision of the ICC overruling the petitions for reconsideration; even if the Commission had stayed the initial grant pending determination of the plaintiffs’ petitions, that stay would now have expired due to the April 4 decision on the petitions. Cf., A.B. & C. Motor Transportation Co. v. United States, 151 F.Supp. 367, 372 (D.Mass., 1956). Second, the purpose behind the grant of a temporary authority would be undercut if the mere filing of a petition for reconsideration could stay its effect. It is with this in mind that the ICC promulgated 49 C.F.R.
“The filing of a petition for reconsideration of an order of Division 1 or the Temporary Authorities Board does . not have the effect of automatically staying such order.”
Plaintiffs contend that this regulation is invalid as violative of the statutory mandate of § 17(8). However, the Court finds that 49 C.F.R. 240.6(c), in effect, carries out the mandate of 49 U. S.C. § 310a(a), carving out an implicit, exception to § 17(8).
III. CONCLUSION
The Court, having determined that there was, at the very least, some evidence to support the Commission’s determination of urgency and unavailability of existing service, and having found no errors of law or activities by the ICC contrary to its statutory authority, affirms the Commission’s grant of temporary authority and denies the plaintiffs’ motion to annul.
. Equipment Transport has an application for permanent authority before the Corn-mission, but this proceeding is irrelevant to the question before the Court.
. Each one of the shippers said: “I am currently obtaining the service I need from REA Express, and accordingly, have had no occasion to seek express service from anyone else. Within my knowledge, however, no service other than that of REA possesses all of the special characteristics required for adequate handling of my express shipments. If REA service became unavailable, I would have an immediate and urgent need which no other carrier would meet.”