627 F.2d 1313 (D.C. Cir. 1980), 78-2260, American Trucking Associations, Inc. v. United States

Docket Nº78-2260.
Citation627 F.2d 1313
Party NameAMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner, [*] v. UNITED STATES of America and Interstate Commerce Commission, Respondents *. Common Carrier Conference-Irregular Route, National Industrial Traffic League et al., Steere Tank Lines, Inc. et al., Chemical Leaman Tank Lines, Inc., Motor Carrier Lawyers Association, Colonial Fast Freight Lines, I
Case DateApril 24, 1980
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1313

627 F.2d 1313 (D.C. Cir. 1980)

AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner, [*]

v.

UNITED STATES of America and Interstate Commerce Commission,

Respondents *.

Common Carrier Conference-Irregular Route, National

Industrial Traffic League et al., Steere Tank Lines, Inc. et

al., Chemical Leaman Tank Lines, Inc., Motor Carrier Lawyers

Association, Colonial Fast Freight Lines, Inc. et al., J. H.

Rose Truck Line, Inc. et al., International Brotherhood of

Teamsters et al., and Michigan and Nebraska Transit Co.,

Inc., Intervenors.

No. 78-2260.

United States Court of Appeals, District of Columbia Circuit

April 24, 1980

Argued Jan. 24, 1980.

Page 1314

[Copyrighted Material Omitted]

Page 1315

Petitions for Review of a Decision of the Interstate Commerce commission.

Alan J. Thiemann, Washington, D.C., with whom Nelson J. Cooney and Kenneth E. Siegel, Washington, D.C., were on the brief, for petitioner American Trucking Associations, Inc.

Ronald J. Mastej and Rex Eames, Detroit, Mich., were on the brief for petitioners Motor Carriers Central Freight Association et al.

Alan E. Serby, Clyde W. Carver, and John J. Capo, Atlanta, Ga., were on the brief for petitioners Refrigerated Transport Co., Inc. et al.

H. E. Miller, Jr., Chesterton, Ind., was on the brief for petitioner Sawyer Transport, Inc.

John P. Fonte, Atty., I.C.C., Washington, D.C., for respondents. Mark L. Evans, Gen. Counsel, Frederick W. Read, III, Associate Gen. Counsel, and Kenneth P. Kolson, Atty., I.C.C., and John J. Powers, III and William D. Coston, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondents. Robert B. Nicholson, Barry Grossman, and Bruce E. Fein, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondent United States.

Richard H. Streeter, Washington, D.C., for intervenors International Brotherhood of Teamsters et al. Edward K. Wheeler and Chandler L. van Orman, Washington, D.C., also entered appearances for intervenors International Brotherhood of Teamsters et al.

Renee D. Rysdahl, Washington, D.C., with whom John F. Donelan, Washington, D.C., was on the brief, for intervenor National Industrial Traffic League.

Harry J. Jordan, Washington, D.C., was on the brief for intervenor Common Carrier Conference-Irregular Route.

Leonard A. Jaskiewicz and Edward J. Kiley, Washington, D.C., were on the brief for intervenor Chemical Leaman Tank Lines, Inc.

Hugh T. Matthews, Dallas, Tex., was on the brief for intervenors Steere Tank Lines, Inc. et al.

Peter A. Greene, New York City, was on the brief for intervenor Motor Carrier Lawyers Association.

Page 1316

E. Stephen Heisley and Elizabeth A. Purcell, Washington, D.C., were on the brief for intervenors Colonial Fast Freight Lines, Inc. et al.

Mert Starnes, Austin, Tex., was on the brief for intervenors American Transfer and Storage Co. et al. (No. 79-1105).

James M. Doherty was on the brief for intervenors J. H. Rose Truck Line, Inc. et al.

Steven H. Loeb entered an appearance for intervenor Michigan and Nebraska Transit Co., Inc.

Before WRIGHT, Chief Judge, and McGOWAN and MIKVA, Circuit Judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Chief Judge:

These consolidated petitions for review 1 challenge regulations recently promulgated by the Interstate Commerce Commission (ICC or Commission) governing intervention in motor carrier licensing proceedings by persons opposing issuance of the license. 2 Petitioner American Trucking Associations, Inc., the national organization of the trucking industry, is joined by other motor carrier interests and by intervenor International Brotherhood of Teamsters in asking this court to strike down the regulations. 3 They contend that the regulations restrict the right of intervention in ICC licensing proceedings guaranteed to competitors and carrier employees under the Interstate Commerce Act, 49 U.S.C.A. §§ 10306(b), 10328(a) & (b) (1979), the Administrative Procedure Act, 5 U.S.C. §§ 544(c), 556(d) (1976), and the Due Process Clause. They also argue that the regulations are arbitrary, capricious, without rational basis, and abusive of discretion.

The Commission, joined by intervenor National Industrial Traffic League, an organization of shippers, argues that the challenged regulations are within the discretion of the agency, being a reasonable way to control the docket and restore order and manageability to licensing proceedings. The Commission denies that the regulations will take from any party a right of intervention it may have under the relevant statutes or the Constitution. The Commission observes that the new regulations are similar to the procedures governing intervention in licensing proceedings conducted by other federal agencies.

We agree with the Commission that the new rules are within its statutory authority and, being a sensible method of improving and streamlining ICC licensing proceedings, are not arbitrary, capricious, or abusive of discretion. We therefore affirm.

I

Until the challenged regulations went into effect 4 the ICC permitted any person to file a protest to a motor carrier application and to participate in the proceeding without making any showing of interest. 5 In his 1958 treatise on administrative law Professor K. C. Davis commented on the

Page 1317

uniquely open intervention rules of the ICC:

(T)he ICC almost as a matter of course grants petitions for leave to intervene, with no inquiry except into the timeliness of the petitions and the question of undue broadening of issues. Moreover, in nearly any proceeding except a complaint case, one may become a party by merely entering an appearance without filing a petition for leave to intervene. The ICC thus avoids problems about adequacy of legal interest or right. Even a substantial broadening of the issues is commonly permitted.

1 K. Davis, Administrative Law Treatise § 8.11 at 569-570 (1958) (footnotes omitted).

Recently, however, the ICC has experienced an "influx of applications," 6 which has caused a substantial backlog. 7 In the Commission's estimation, this backlog has reached the point at which the agency can no longer be "as responsive as it could be" to the requirements of the transportation industry and the interests of the public. 8 Accordingly, on June 2, 1977 the Commission established a staff task force to investigate ways of improving outmoded ICC procedures. After study the staff concluded that the ICC should grant standing to protest license applications "only to carriers actually participating in the involved traffic during the 2-year period preceding the filing of the application." 9 By this change in procedure the staff expected to eliminate many "frivolous protests" and to permit more cases to be handled as unopposed. 10

After inviting comments on the staff report 11 the Commission published proposed rules restricting the right of intervention in motor carrier licensing proceedings 12 and set the matter for notice and comment rulemaking without oral argument. The proposed rules were much less restrictive than those supported by the staff report. 13 In summary, they permitted automatic intervention by carriers in direct competition with the applicant's proposed service and permissive intervention by other parties upon petition. The Commission was to base its decision whether to grant such permissive intervention on seven criteria designed to identify parties with sufficient interest in the proceeding to warrant their participation. Many members of the public and some federal agencies submitted comments on the proposed rules. Carrier interests generally agreed that the Commission should take action to eliminate frivolous protests, but opposed the proposed rules on the ground that they would interfere with the ability of carriers with competing authority to protect their economic interests. 14 Shipping interests and the federal agencies generally supported the proposed rules or suggested that they be strengthened so as to restrict the right of intervention still further. 15

On November 1, 1978 the ICC promulgated final rules governing intervention in motor carrier licensing proceedings. Protest Standards in Motor Carrier Application Proceedings (1978), printed at 43 Fed.Reg.

Page 1318

50908 (November 1, 1978), Deferred Appendix (DA) 28. The new rules amend 49 C.F.R. § 1100.247(i) (1978) and add new subsections (e)(9), (k), (l), and (m). Under the new intervention rules the ICC will permit intervention as a matter of right in motor carrier licensing proceedings to persons supporting the application, and to any carrier that submits a petition showing that it:

(1) Is authorized to perform any of the services which the applicant seeks authority to perform(;) and

(2) Has the necessary equipment and facilities for performing that service; and

(3) Has performed a service within the scope of the application either (i) for those supporting the application, or, (ii) where the service is not limited to the facilities of particular shippers, from and to or between any of the involved points.

Protest Standards, supra, 43 Fed.Reg. at 50911, DA 52, 49 C.F.R. § 1100.247(k) (1979). Other parties may petition to intervene in motor carrier licensing proceedings, although they do not satisfy the criteria of subpart (k). The Commission will decide whether to permit such intervention, based on the following factors:

(i) The nature, if any, of the petitioner's right under a statute to be made a party.

(ii) The nature and extent of the property, financial, or other interest of the petitioner, including petitioner's service capabilities and the extent, if any, to which petitioner (A) has solicited the traffic or business of those supporting the application, or, (B) where the identity of those supporting the application is not included in the published application...

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24 practice notes
  • 737 F.2d 103 (D.C. Cir. 1984), 81-1637, Intercity Transp. Co. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • June 19, 1984
    ...pertains to the allocation of agency resources and efficient operating procedures. American Trucking Ass'ns, Inc. v. United States, 627 F.2d 1313, 1320-21 (D.C.Cir.1980). See also Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524-25, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). W......
  • 673 F.2d 82 (5th Cir. 1982), 81-4026, American Trucking Associations, Inc. v. I. C. C.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • March 30, 1982
    ...appeal from that denial within the agency and, if necessary, to the Court of Appeals." American Trucking Ass'ns v. United States, 627 F.2d 1313, 1318 (D.C.Cir.1980). If it is determined that the right to intervene was improperly denied, then a court of appeals may order the Commission ......
  • 628 F.2d 248 (D.C. Cir. 1980), 79-1249, Regular Common Carrier Conference of American Trucking Associations, Inc. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • June 30, 1980
    ...to the Court of Appeals. Such an individual case is not now before this court. American Trucking Associations, Inc. v. United States, 627 F.2d 1313, at 1318 (D.C.Cir. 1980) (footnote omitted). Here petitioners' argument is exactly that "the Commission is likely to abuse or misapply the......
  • 735 F.2d 591 (D.C. Cir. 1984), 83-1671, Vanguard Interstate Tours, Inc. v. I.C.C.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • May 18, 1984
    ...under broadly worded statutory language in 49 U.S.C. Sec. 10328(b) (Supp. V 1981); cf. generally American Trucking Ass'ns, Inc. v. ICC, 627 F.2d 1313, 1320 (D.C.Cir.1980) (discussing prior scheme of broad delegation to the Commission), but in BRRA Congress itself took up the task of specify......
  • Request a trial to view additional results
23 cases
  • 737 F.2d 103 (D.C. Cir. 1984), 81-1637, Intercity Transp. Co. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • June 19, 1984
    ...pertains to the allocation of agency resources and efficient operating procedures. American Trucking Ass'ns, Inc. v. United States, 627 F.2d 1313, 1320-21 (D.C.Cir.1980). See also Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524-25, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). W......
  • 673 F.2d 82 (5th Cir. 1982), 81-4026, American Trucking Associations, Inc. v. I. C. C.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • March 30, 1982
    ...appeal from that denial within the agency and, if necessary, to the Court of Appeals." American Trucking Ass'ns v. United States, 627 F.2d 1313, 1318 (D.C.Cir.1980). If it is determined that the right to intervene was improperly denied, then a court of appeals may order the Commission ......
  • 628 F.2d 248 (D.C. Cir. 1980), 79-1249, Regular Common Carrier Conference of American Trucking Associations, Inc. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • June 30, 1980
    ...to the Court of Appeals. Such an individual case is not now before this court. American Trucking Associations, Inc. v. United States, 627 F.2d 1313, at 1318 (D.C.Cir. 1980) (footnote omitted). Here petitioners' argument is exactly that "the Commission is likely to abuse or misapply the......
  • 735 F.2d 591 (D.C. Cir. 1984), 83-1671, Vanguard Interstate Tours, Inc. v. I.C.C.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • May 18, 1984
    ...under broadly worded statutory language in 49 U.S.C. Sec. 10328(b) (Supp. V 1981); cf. generally American Trucking Ass'ns, Inc. v. ICC, 627 F.2d 1313, 1320 (D.C.Cir.1980) (discussing prior scheme of broad delegation to the Commission), but in BRRA Congress itself took up the task of specify......
  • Request a trial to view additional results
1 provisions
  • Revisions to Procedural Rules
    • United States
    • Federal Register June 14, 2013
    • June 14, 2013
    ...hearing processes more efficient.'' ANOPR at 7. That general proposition is well settled. See Am. Trucking Ass'ns, Inc. v. United States, 627 F.2d 1313, 1321 (D.C. Cir. 1980) cited by the Court in Citizens Awareness, 391 F.3d at 349. As also pointed out by the Court in Citizens Awareness, i......