United States v. Benmar Transport and Leasing Corp

• Decision Date: 15 October 1979
• Docket Number: No. 78-1602,78-1602
• Parties: UNITED STATES et al. v. BENMAR TRANSPORT AND LEASING CORP. et al
• Court: U.S. Supreme Court

444 U.S. 4

100 S.Ct. 16

62 L.Ed.2d 5

UNITED STATES et al.

v BENMAR TRANSPORT AND LEASING CORP. et al.

No. 78-1602.

Oct. 15, 1979.

PER CURIAM.

This case is here on certiorari to the United States Court of Appeals for the Second Circuit, which set aside an order of the Interstate Commerce Commission authorizing respondent Consolidated Truck Service, Inc., to begin contract carrier service in competition with respondent Benmar Transport & Leasing Corp. The order, issued October 5, 1977, was defective because it lacked the statutorily required finding that it was consistent " 'with the public interest and with the national transportation policy,' [210] of the Interstate Commerce Act, 49 U.S.C. § 310 [now 49 U.S.C. § 10930(a) (1976 ed., Supp. II)]." Benmar Transport & Leasing Corp. v. ICC, 582 F.2d 246, 248 (1978).

The case was arqued in the Court of Appeals on July 17, 1978, and decided August 16, 1978. In reaching its decision the Court of Appeals refused to consider two subsequent Commission orders that remedied the defect. The first of these orders, issued with the consent of all interested parties almost six months before oral argument in the Court of Appeals, reopened the administrative proceedings and made the finding required by 49 U.S.C. § 310. The second, issued on April 18, 1978, denied respondent Benmar's petition for administrative review of the former order. This denial became the Commission's final administrative order and had the effect of reaffirming its earlier decision to grant Consolidated's application for a contract carrier permit. Although the question briefed by the parties in the Court of Appeals was whether the order of April 18, 1978, was supported by the evidence, the Court of Appeals declined to examine the question on the ground that the only order properly before it was the defective order of October 5, 1977. It thus vacated the order and remanded the case for further proceedings.

We grant the petition of the United States and the Commission and reverse the judgment of the Court of Appeals. In American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970), this Court held that the Commission's broad powers to "reverse, change, or modify" its decisions "are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court." Id., at 541, 90 S.Ct., at 1293. (The applicable statute then provided for review of orders of the Commission by a three-judge District Court, rather than by the Court of Appeals.) Here the Commission's action did not interfere in any manner with the proceedings in the Court of Appeals, and the Commission acted before that court was ready to hear arguments on the merits and before it received the record. All parties concurred in the Commission's decision to reopen the proceedings and to hold judicial review in abeyance pending the Commission's final disposition of Benmar's petition for administrative review. The position of the parties—both those who prevailed and those who lost before the Commission—is convincingly demonstrated by the fact that no party has filed a brief in support of the decision reached by the Court of Appeals.

As the Court said in American Farm Lines, supra, "[t]he concept 'of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit' some statutory schemes, . . . but it does not fit this one." 397 U.S., at 541, 90 S.Ct., at 1293-1294. After the abolition of the "forms of action" in the early common law, it was said that "[t]he forms of action we have buried, but they still rule us from their graves." F. Maitland, The Forms of Action at Common Law 2 (1936). Orderly rules of procedure are necessary in order that appellate review may be had of agency findings, but empty formalities devoid of either substantive or procedural benefit have no place in the normal scheme for administrative review unless Congress chooses to place them there. Here Congress has quite clearly not chosen to impose such virtually meaningless requirements as the Court of Appeals insisted upon.^* The judgment of the Court of Appeals is inconsistent with the spirit which animated American Farm Lines v. Black Ball Freight Service, supra, and is therefore

Reversed.

Mr. Justice MARSHALL, dissenting.

The Court today summarily reverses the judgment of the United States Court of Appeals for the Second Circuit setting aside an order of the Interstate Commerce Commission which concededly lacked a statutorily required finding. The Court takes this action because of two subsequent orders which the Commission issued after the petition for review had been filed with the Court of Appeals without seeking the permission of that court or taking any of the proper procedural steps. I dissent.

Since the procedural timetable involved in this case is important to the issue presented, it is necessary to set out more fully the proceedings below. Respondent Benmar Transport & Leasing Corp. filed a petition to review the order of the ICC with the Court of Appeals on January 13, 1978. There were no petitions for reconsideration still pending at that time. Thereafter, counsel for Benmar notified the ICC that the order was patently defective because of the lack of a statutorily required finding. The ICC on its own motion reopened the administrative proceedings on January 27, 1978, and made the necessary statutory finding. The parties then filed a motion in the Court of Appeals for an extension of time in which to file the record and briefs, and an extension was granted until March 8, 1978. Benmar filed an administrative petition for reconsideration and for reopening the ICC proceedings for receipt of new evidence on February 27, 1978. The reply to this petition was not filed with the ICC by respondent Consolidated Truck Service, Inc., until March 16, 1978—well after the deadline for filing the record and briefs with the Court of Appeals. Meanwhile, on March 7, 1978, the day before the record and briefs were due to be filed with the court, the ICC moved to have further judicial proceedings held in abeyance pending the Commission's disposition of Benmar's petition. Before the Court of Appeals could rule on this motion, the Clerk of that court was informed by Benmar's counsel that as an alternative to the motion to hold the action in abeyance Benmar intended to withdraw the petition for judicial review subject to reinstatement within 30 days after the disposition of the administrative petition. Benmar and the ICC attempted to draft a stipulation to that effect, but no stipulation was ever filed with the court. On April 18,...