Brown Exp., Inc. v. U.S.

• Decision Date: 30 November 1979
• Docket Number: Nos. 79-1457,79-1458 and 79-1926,s. 79-1457
• Citation: 607 F.2d 695
• Parties: BROWN EXPRESS, INC., et al., Petitioners, v. The UNITED STATES of America and Interstate Commerce Commission, Respondents. ALAMO EXPRESS, INC., et al., Petitioners, v. The UNITED STATES of America and Interstate Commerce Commission, Respondents. COMMON CARRIER CONFERENCE IRREGULAR ROUTE, Petitioner, v. The UNITED STATES of America and Interstate Commerce Commission, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 695

607 F.2d 695

BROWN EXPRESS, INC., et al., Petitioners, v. The UNITED STATES of America and Interstate Commerce

Commission, Respondents.

ALAMO EXPRESS, INC., et al., Petitioners, v. The UNITED STATES of America and Interstate Commerce

Commission, Respondents.

COMMON CARRIER CONFERENCE IRREGULAR ROUTE, Petitioner, v. The UNITED STATES of America and Interstate Commerce

Commission, Respondents.

Nos. 79-1457, 79-1458 and 79-1926.

United States Court of Appeals Fifth Circuit.

Nov. 30, 1979.

Robinson, Felts, Meyers, Starnes & Latting, Phillip Robinson, Timothy Mashburn, Austin, Tex., for Brown Exp., Inc., et al.

Joseph H. Hart, Austin, Tex., for Brown Exp., Inc., et al. and for petitioner in No. 79-1926.

Harry J. Jordan, Washington, D. C., for Brown Exp., Inc., et al. and for Alamo Exp., Inc.

H. Glenn Scammel, Washington, D. C., for respondents in all cases.

Clark, Thomas, Winters & Shaprio, Jerry C. Prestridge, Austin, Tex., for Merchants Fast Motor Lines, Inc.

Jones, Mays & Capps, Houston, Tex., for Alamo Exp., Inc.

Ewell H. Muse, Jr., Austin, Tex., for Southwestern Motor Transport, Inc.

Margaret O. Halpern, Atty., U. S. Dept. of Justice, Washington, D. C., for respondents in Nos. 79-1458 and 79-1926.

John Elliott Bunce, Arlington, Va., for Ryder Truck Lines.

John J. Powers, III, Atty., Dept. of Justice, Washington, D. C., for respondents in 79-1926.

Petitions for Review of Orders of the Interstate Commerce Commission.

Before WISDOM, CHARLES CLARK, and GEE, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Section 10928 of the Interstate Commerce Act, 49 U.S.C. § 10928, authorizes the Interstate Commerce Commission to "grant a motor carrier or water carrier temporary authority to provide transportation to a place or in an area having, respectively, no motor carrier or water carrier capable of meeting the immediate needs of the place or area. Unless suspended or revoked, the Commission may grant the temporary authority for not more than 180 days." If the ICC grants the temporary authority (TA) and if the applicant files an application for corresponding permanent authority as provided by Title 49, it can continue to operate until the permanent authority application is finally decided. 49 C.F.R. § 1101.1 (1978).

The Commission also grants emergency temporary authority (ETA) for periods of 30 days or less "to meet an immediate and urgent need for service due to emergencies, in which time or circumstances do not reasonably permit the filing and processing of an application for temporary authority." 49 C.F.R. § 1131.1(b)(1) (1978). If an applicant for ETA certifies that within 15 days of the date of filing his application for ETA it will file a corresponding application for 180-day temporary authority, the Commission will as a matter of course grant two successive 30-day extensions of emergency temporary authority. 49 C.F.R. § 1131.2 n.2.A (1978).

Notice of the filing of applications for 180-day temporary authority is published in the Federal Register. Any interested person who can and will provide all or part of the proposed service may file a protest against the application within 15 days. 49 C.F.R. § 1131.3(a) (1978). Applications for emergency temporary authority are not published in the Federal Register, id., but it has been the practice of the Commission for over 40 years to communicate by telephone with existing carriers who hold permits to serve the ETA area to determine whether there is truly an immediate and urgent need for the additional service. Existing carriers are not otherwise notified of the filing of competing service ETA applications.

On December 15, 1978, however, the Commission published in the Federal Register its Notice of Elimination of Notification Procedure in the Processing of Emergency Temporary Authority Applications under 49 U.S.C. 10928, 43 Fed.Reg. 58701 (Dec. 15, 1978) ("Notice of Elimination"). The Notice of Elimination provided in part: "The Commission has determined that it is no longer necessary for its field staff to notify competing carriers and other interested parties when a motor carrier files an application for an Emergency Temporary Authority (ETA)." The notice also stated that the Commission had determined that discontinuing the practice of ETA notification "would have little adverse effect, if any, on applicants, competing carriers, or supporting shippers," because ETAs are limited to 30 days in duration, because applicants must show an immediate need for the proposed service, and because supporting shipper statements must be made under oath. The notice further provided that an adversely affected carrier may appeal the grant of ETA within 15 days after becoming aware of the grant.

The change was to become effective on December 30, 1978, 15 days after publication in the Federal Register, without an opportunity for comment by interested persons and with less than the thirty days' notice required by the Administrative Procedure Act, 5 U.S.C. § 553(c) & (d). The Commission relied upon the exemption in § 553(b) in holding that the Act did not apply to this change. It stated:

This change constitutes a general statement of Commission policy that will have little, if any, substantive or binding impact on interested parties. Therefore, for good cause, notice and public comment are unnecessary since the technical change in practice is not major and it will have little adverse effect. ¹

On December 29, 1978, the Common Carrier Conference Irregular Route filed a petition with the Commission requesting a stay of the proposed rule change, further administrative review, and the institution of a rule-making proceeding under the Administrative Procedure Act. The Commission did not act upon the petition until February 1, 1979, when it returned the petition to the Conference, stating that no petition for administrative review could lie because no decision was rendered. In the meantime, on January 26, 1979, the Conference had filed a petition for review of the Notice of Elimination in the United States Court of Appeals. ²

In January and February of 1979, the ICC's Motor Carrier Board granted emergency temporary authority to motor carriers Texas-Oklahoma Express, Inc., and Ryder Truck Lines Co., Inc. Under the new policies set out in the Notice of Elimination, Brown Express, Inc., and Alamo Express, Inc., who were competing carriers, were not notified of the ETA applications. When they learned of the grants of ETA, they petitioned this court for review and applied for a stay pending our disposition of their petition. On March 27, 1979, we granted that stay. Petitioners also sought administrative review by the ICC of the Board's action. On April 17, 1979, Vice Chairman Brown revoked the grants of ETA to both Texas-Oklahoma Express, Inc., and Ryder Truck Lines Co., Inc. We therefore dismissed both appeals as moot insofar as they sought review of those grants. These appeals were consolidated with the petition of Common Carrier Conference Irregular Route for determination whether the Notice of Elimination was validly promulgated and was, on its merits, proper.

I

We first consider whether the issue as to proper promulgation is justiciable after the Commission's revocation of the present ETAs, and find that the issue is not moot and that the parties have standing. Petitioners challenge not only the method of effecting the change in procedure by adopting the Notice of Elimination but also the merits of the new procedure. Because we hold that the Notice of Elimination was not promulgated in accordance with the notice and comment requirements of the Administrative Procedure Act, we do not reach the issue of the merits of the procedure itself, so we need not consider to what extent the latter issue is moot.

Although we do not pass on the merits of the Notice of Elimination procedure, it is still in use. Thus, a challenge under the Administrative Procedure Act to the manner in which this currently used procedure was adopted is not moot. The parties who make this challenge have standing. Petitioners Brown and Alamo have demonstrated that they suffered injury in fact because the Notice of Elimination procedures were applied to them. That it allowed their competitors an advantage, albeit temporary, is enough, since the Interstate Commerce Act provides that its purposes include the encouragement of "sound economic conditions among carriers" and the avoidance of "unreasonable discrimination or unfair or destructive competitive practices." 49 U.S.C. § 10101(a)(3) & (4). Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Petitioner Common Carrier Conference Irregular Route represents over 400 regulated motor carriers, whose interests as well as those of their competitors have been affected by this agency action. These carriers are all arguably within the protected class. Accordingly, the Conference, as their collective representative, also has standing.

II

The Notice of Elimination is a "rule" and its promulgation constituted "rule making" within the meaning of the Administrative Procedure Act. ³ Section 553 of the Act provides that an agency must provide notice of a proposed rule making in the Federal Register and afford an opportunity for interested persons to present their views. 5 U.S.C. § 553(b) & (c). The required publication must be made not less than 30 days before the effective date of the proposed rule. 5 U.S.C. § 553(d). In promulgating the Notice of Elimination, the Commission did not attempt to comport with these requirements. It argues that the requirements of section 553 do not apply to the Notice of Elimination.

A. Exemption Under the Interstate Commerce Act

The Commission first urges that 49 U.S.C. § 10928 exempts the Notice of Elimination from the notice and comment requirements of the Act. This argument is frivolous. Section 10928 authorizes the Commission to make specific grants of emergency...