Aime Bellavance & Sons, Inc. v. UNITED STATES ICC

• Decision Date: 11 July 1977
• Docket Number: No. 75-24.,75-24.
• Court: U.S. District Court — District of Vermont
• Parties: AIME BELLAVANCE & SONS, INC. and Robert W. Belville and Freda H. Belville d/b/a New York and Vermont Motor Express, Plaintiffs, v. The UNITED STATES of America INTERSTATE COMMERCE COMMISSION and Theodore Rossi Trucking Co., Inc., Defendants.

440 F. Supp. 773

AIME BELLAVANCE & SONS, INC. and Robert W. Belville and Freda H. Belville d/b/a New York and Vermont Motor Express, Plaintiffs, v. The UNITED STATES of America INTERSTATE COMMERCE COMMISSION and Theodore Rossi Trucking Co., Inc., Defendants.

No. 75-24.

United States District Court, D. Vermont.

July 11, 1977.

COPYRIGHT MATERIAL OMITTED

John P. Monte, Monte & Monte, Barre, Vt., for plaintiffs.

Thomas E. Kauper, Asst. Atty. Gen., Washington, D. C., George W. F. Cook, U. S. Atty., Jerome O'Neill, Asst. U. S. Atty., Rutland, Vt., John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., for defendant the United States of America.

Charles H. White, Jr., Atty., Peter A. Fitzpatrick, Atty., Chicago, Ill., I. C. C., Washington, D. C., for defendant I. C. C.

David M. Marshall, Marshall & Marshall, Springfield, Mass., for defendant Theodore Rossi Trucking Co., Inc.

Before WATERMAN, Circuit Judge, and HOLDEN and COFFRIN, District Judges.

OPINION

WATERMAN, Circuit Judge:

In this action brought pursuant to 28 U.S.C. § 1336 (amended by Act of Jan. 2, 1975, Pub.L. No. 93-584, § 1, 88 Stat. 1917)¹ plaintiff trucking companies Aime Bellavance & Sons, Inc. ("Bellavance"), and Robert W. Belville and Freda H. Belville d/b/a New York and Vermont Motor Express ("Motor Express") seek annulment of, and an injunction against the enforcement of, an Interstate Commerce Commission order granting defendant Theodore Rossi Trucking Co., Inc. ("Rossi") a certificate of public convenience and necessity to haul granite from New York City to Barre, Vermont. Venue was properly laid in this district, see 28 U.S.C. § 1398(a) (amended by Act of Jan. 2, 1975, Pub.L. No. 93-584, § 2, 88 Stat. 1917), and, inasmuch as injunctive relief is requested against the operation of an order of the Interstate Commerce Commission, the case has been heard and determined by a three-judge district court, see 28 U.S.C. § 2325 (repealed by Act of Jan. 2, 1975, Pub.L. No. 93-584, § 7, 88 Stat. 1918).²

On January 2, 1973 Rossi filed with the Interstate Commerce Commission ("Commission" or "ICC") an application under 49 U.S.C. § 307 for a certificate of public convenience and necessity. In this application Rossi sought authority as a common carrier to haul stone over irregular truck routes from each of three specific locations (Fortsville, New York, Montague City, Massachusetts, and Highgate Springs, Vermont) to all points in the continental United States. This authority would also have encompassed the transportation of return shipments of rejected or returned stone from the places of destination to one of the three aforementioned places of origin. The application further sought authority to haul stone from ports of entry around the country to points in Vermont and New Hampshire.

In February and March of 1973 plaintiffs here and other trucking companies formally opposed the grant of the requested authority. In an order dated April 9, 1973, and served on April 19, 1973, the Commission assigned the proceeding to its "modified procedure" docket. "Modified procedure," which is used to allow efficient and expeditious disposition of applications which do not raise transportation issues of any substantial importance, operates primarily on the basis of "verified statements."³ These are sworn statements on which must appear the names and seals, if any, of the persons who administered the oaths to the affiants. See 49 C.F.R. § 1100.50. Under "modified procedure" the application for motor carrier authority is determined solely on the basis of these verified statements unless one of the parties requests an oral examination of witnesses and shows that the verified statements raise a factual issue material to the disposition of the pending application. See 49 C.F.R. § 1100.53. Any failure to comply with the "modified procedure" rules causes a party to be in default and any further hearing for that party is deemed waived. 49 C.F.R. § 1100.46(b).

In addition to assigning the case to the "modified procedure" docket, the Commission's order of April 9, 1973 also established a timetable for the filing of verified statements in support of or in opposition to Rossi's pending request for motor carrier authority. Although two of the protestant trucking companies filed verified statements in opposition to the requested grant of authority, none of the other protestants, including plaintiffs here, did. Instead, Bellavance and Motor Express filed unverified statements. Rossi submitted a verified statement in support of its own application and also supported its application by filing the verified statements of two granite shippers. After the filing of protestants' statements, Rossi submitted another verified statement as rebuttal evidence.

On December 19, 1973 the Commission (Review Board Number 1) issued its decision on Rossi's pending application for motor carrier authority. An important facet of that decision was the striking of all unverified statements, including all statements submitted by plaintiffs. In doing so, the Commission stated:

As noted by applicant in rebuttal, the statements submitted by protestants Aime Bellavance & Sons, Inc., Norman F. George, Inc., Estate of Lawrence Andrew LaFountain, doing business as Barre Granite Transfer, Williams Motor Transfer, Inc., New York and Vermont Motor Express, and Ray Churchill Trucking Co., Inc., fail to show the signature, capacity, and impression seal, if any, of the person administering the oath; . . . although verification of statements filed under modified procedure need not be made in the exact form described in the Commission's General Rules of Practice (49 C.F.R. § 1100.50 and Appendix B thereto), it is necessary that the facts asserted in any pleading filed under the modified procedure be sworn to by persons having knowledge thereof, and that the original of any such factual statement show the signature, capacity, and impression seal, if any, of the person administering the oath, and the date thereof; . . . inasmuch as the statements filed by the above-named protestants do not meet these basic requirements, such statements are not properly verified in accordance with the Commission's General Rules of Practice (49 C.F.R. § 1100.50); . . . accordingly, protestants' statements will be stricken from the record herein; and good cause appearing therefor:

It is ordered, That the statements submitted by the protestants named in the immediately preceding paragraph be, and they are hereby, stricken from the record;

Despite the fact that it had decided that the unverified statements should be disregarded, the Commission nevertheless ruled, for reasons specified in the decision, that Rossi had "failed to establish that the present or future public convenience and necessity require the proposed operation." Accordingly, the Commission determined that the application should be denied in its entirety. The order of December 19, 1973 was served on all parties on January 2, 1974. Believing that they had achieved their goal of preventing the issuance of a certificate to Rossi, plaintiffs took no steps to correct the deficient statements which the Commission had stricken from the administrative record.

Dissatisfied with the complete denial of its application, Rossi, on January 23, 1974, filed a petition for reconsideration of the Commission's decision. In its petition, however, Rossi sought the grant of a much more circumscribed type of authority than it had previously sought. Specifically, Rossi's sole request at this point was that it be granted authority to haul granite by motor carrier over irregular routes from New York City to Barre. Rossi argued that the amended authority it now sought was fully supported by the administrative record as it stood at the time of the Commission's decision on December 19, 1973.

Rossi claims that it served its petition for reconsideration upon all parties of record, and also upon plaintiffs. Plaintiffs dispute this. In any event, having decided on the basis of the papers filed by Rossi that the proceeding should be reopened, the Commission (Division 1, acting as an Appellate Division), ruled on July 23, 1974 "that the present and future public convenience and necessity require operation by Rossi, in foreign commerce only, as a common carrier by motor vehicle, over irregular routes, of granite, from New York, N. Y., to Barre, Vermont" and that therefore a certificate of public convenience and necessity should be issued upon Rossi's compliance with further requirements of the Interstate Commerce Act. The Commission's order was served on July 30, 1974.

On August 19, 1974 plaintiffs filed a "Petition for Reconsideration and Motion for Leave to Correct Verified Statements and to Intervene" and a separate document entitled "Motion for Stay of Order." In the petition for reconsideration plaintiffs conceded that before and at the time Rossi filed its petition for reconsideration on January 23, 1974 plaintiffs "pursuant to 49 C.F.R., Section 1100.101(5)(e) sic could have filed for reconsideration and corrections of plaintiffs' initial verified statements." They asserted, however, that, inasmuch as they believed that the Commission's denial of Rossi's original application sufficiently protected their interests and, because they allegedly had not been served with a copy of Rossi's January 23, 1974, petition, it had not been evident to them that correction of their concededly deficient statements was necessary to safeguard their rights. Relying upon Rossi's alleged failure to notify plaintiffs of the filing of Rossi's petition for reconsideration, and charging that the Commission had failed "to follow the directives of 49 C.F.R., Section 1100.4(c)," plaintiffs asserted that they had been deprived of property without due process of law⁴ and they sought leave to correct the admitted deficiencies in the original unverified statements, sought leave to respond to Rossi's petition for...