C & H TRANSPORTATION COMPANY v. United States

• Decision Date: 10 December 1965
• Docket Number: Civ. A. No. 3-789.
• Citation: 249 F. Supp. 97
• Parties: C & H TRANSPORTATION COMPANY, Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Northern District of Texas

249 F. Supp. 97

C & H TRANSPORTATION COMPANY, Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. 3-789.

United States District Court N. D. Texas, Dallas Division.

December 10, 1965.

William P. Fonville, Dallas, Tex., W. T. Brunson, Oklahoma City, Okl., for plaintiff.

Nicholas deB. Katzenbach, U. S. Atty. Gen., Washington, D. C., by William H. Orrick, Jr., Asst. Atty. Gen., John H. D. Wigger, Washington, D. C., Melvin M. Diggs, U. S. Atty., Dallas, Tex., by Charles D. Cabaniss, Asst. U. S. Atty., Robert Ginnane, Gen. Counsel, I. K. Hay, Associate Gen. Counsel, Leonard S. Goodman, Asst. Gen. Counsel, I. C. C., Washington, D. C., for defendants.

Thomas E. James, Phillip Robinson, James, Robinson & Starnes, Austin, Tex., Carl L. Phinney, Leroy Hallman, Phinney, Hallman & Pulley, Joseph M. Stuhl, Wise & Stuhl, Dallas, Tex., for intervenors.

Before BROWN, Circuit Judge, and DAVIDSON, and HUGHES, District Judges.

HUGHES, District Judge.

The question presented in this action is whether the order of the Interstate Commerce Commission denying plaintiff C & H Transportation Company authority to acquire certain rights from another motor carrier on the grounds that the rights in question have been found to be dormant and that no public need for their reactivation exists is supported by substantial evidence in the record before the Commission.

The relevant facts surrounding this transaction are carefully set out in the two opinions by Commissioner Tuggle on behalf of the I.C.C.¹ and need not be repeated here.

C & H Transportation Company filed this action to review and enjoin enforcement of the I.C.C. order under 28 U.S.C. §§ 1336 and 2321. A three-judge district court was appointed as required by 28 U.S.C. §§ 2325 and 2284.

SCOPE OF REVIEW

The function of this court is a very limited one. Section 5 of the Interstate Commerce Act, 49 U.S.C. § 5, assigns the responsibility of approving the sale of interstate motor carrier rights solely to the I.C.C. The Commission, with its decades of experience in this field, is far better equipped than we are to determine these questions. So long as it has not abused the discretion Congress delegated to it and its findings are supported by substantial evidence in the record, our duty is to sustain the Commission's order "even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); McLean Trucking Co. v. United States, 321 U.S. 67, 87-88, 64 S.Ct. 370, 88 L.Ed. 544 (1944); Alamo Express, Inc. v. United States, 239 F.Supp. 694, 697 (W.D.Tex. 1965); Administrative Procedure Act, Sec. 10(e), 5 U.S.C. § 1009(e).

Where the hearing examiner and the Commission reach different conclusions, the task may be a bit more difficult, but the rule remains the same. We are required to examine the record as a whole, including the testimony taken before the examiner and the examiner's report, to determine whether there is substantial evidence to support the conclusions of the Commission. Section 8(a) of the Administrative Procedure Act, 5 U.S.C. § 1007(a),² provides that the agency have full power to reach any conclusions it would have reached in the absence of a hearing examiner's initial decision.

In Universal Camera Corp. v. N.L.R.B., supra, 340 U.S. at 492, 71 S.Ct. at 467, the Supreme Court stated in interpreting Section 10(c) of the Labor Management Relations Act, 61 Stat. 147, 29 U.S.C. Sec. 160(c):

"The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner's findings only when they are `clearly erroneous.' Such a limitation would make so drastic a departure from prior administrative practice that explicitness would be required."

Four years later the Supreme Court applied this statement to all proceedings under the Administrative Procedure Act. F. C. C. v. Allentown Broadcasting Co., 349 U.S. 358, 75 S.Ct. 855, 99 L.Ed. 1147 (1955).

In a case in which the administrative circumstances were similar to the situation facing us in this case, the Fifth Circuit stated:

"* * * it is the board's findings and not those of the examiner which we are to review."

The final obligation to determine the facts, the Court noted, rests solely with the administrative board. N. L. R. B. v. Akin Products Co., 5 Cir., 209 F.2d 109 (1953).³

DORMANCY

On the question of whether the vendor's rights were dormant, the purchasing carrier has the burden of proving actual operations prior to the date that temporary leasing authority was granted. C & H Transportation Company failed to prove a single shipment by the vendor under those rights now before us. Similarly, when the vendor's president, Jim L. Ferguson, testified as to his operations, he acknowledged that the exhibits before the Examiner did not show a single operation along those routes.⁴

We hold that the evidence in the record clearly sustains the Commission's findings that the routes were dormant and that C & H Transportation Company failed to meet its burden of demonstrating operations by the vendor on those routes.

REACTIVATION OF DORMANT ROUTES

Once dormancy has been found, the purchasing carrier has the burden of proving a public need for his service in order to justify the reactivation of dormant routes. Logically, the Commission then requires the same degree of proof in an application to reactivate routes wholly unused as in this case as it would in an application for new routes. See Note, Federal Regulation of Trucking: The Emerging Critique, 63 Colum. L.Rev. 460, 489 n. 177 (1963). The purchaser's obligation here would be to "demonstrate by shipper testimony that a need for additional service is present or immediately foreseeable — and, conversely, upon protest of authorized carriers, that the existing service offered is physically incapable of meeting shipper demands." Note, Federal Regulation of Trucking, supra, 63 Colum.L.Rev. at 469. Accord, T.S.C. Motor Freight Lines, Inc. v. United States, 186 F.Supp. 777 (S.D.Tex.1960), aff'd per curiam sub nom., Herrin Transp. Co. v. United States, 366 U.S. 419, 81 S.Ct. 1356, 6 L.Ed.2d 387 (1961).

Four shipper witnesses testified in C & H Transportation Company's behalf. One of them disclosed plans to use its services along these routes in the future,⁵ but on cross-examination acknowledged that C & H Transportation Company "would be just one additional carrier providing operations into Arizona."⁶ Another shipper witness expressed a need for C & H Transportation Company's operations, but admitted later that he had not checked the availability of other carriers for two years prior to the hearing.⁷

Two additional shipper witnesses expressed a desire for single-line service for heavy and cumbersome commodities from points in Ohio and Pennsylvania to Arizona by combining the existing routes of C & H Transportation Company with the vendor's dormant routes. One of them conceded that he had made only five shipments via the service provided by C & H Transportation under its temporary authority between Ohio and Arizona in the two years prior to the hearing.⁸ Most of that shipper's transportation needs were fulfilled by railroad service.⁹ The other shipper witness testified that his company had used the services of C & H Transportation Company into Arizona only once during the three and a half years of temporary operating authority.¹⁰

C & H Transportation Company argues further that the substantial quantity of shipments under the temporary authority, without great financial hardship to competitors, demonstrates a public need for reactivation of the routes. This would certainly be a relevant factor in evaluating public need, but as the Commission stated, such evidence alone does not establish public need. The Commission has reasonably inferred that any aggressive carrier can acquire operations under temporary authority even though adequate service by competitors is readily available.¹¹ As was recently stated, "a basic ingredient in the determination of `public convenience and necessity' is, and has consistently been held to be, whether the existing facilities are inadequate to meet present or future transportation requirements." Curtis, Inc. v. United States, 225 F.Supp. 894 (D.Colo.), aff'd per curiam, 378 U.S. 128, 84 S.Ct. 1658, 12 L.Ed.2d 744 (1964). See also Hudson Transit Lines, Inc. v. United States, 82 F.Supp. 153 (S.D.N.Y.1948), aff'd per curiam, 338 U.S. 802, 70 S.Ct. 59, 94 L.Ed. 485 (1949).

The testimony of plaintiff's own shipper witnesses demonstrates clearly that, while they might prefer C & H Transportation Company's services along the dormant routes, there was no great difficulty in obtaining services from competing carriers or that only C & H Transportation Company could fulfill their shipping requirements.

We therefore affirm the order of the Commission and dismiss the complaint. This Court's temporary restraining order against the Commission issued on March 3, 1965, is hereby vacated.

DAVIDSON, District Judge (dissenting).

I dissent for the reasons set forth in the following proposed opinion which the majority found unacceptable and which I now adopt as my dissent without making a redraft of the proposed opinion.

This case stems from the dissolution or division of the transportation rights of the Ferguson Transportation Company which resulted from its becoming insolvent by certain reverses in the late 50's.

As a result of its financial embarrassment it transferred certain of its rights previously granted to it as a matter of convenience and necessity over certain areas and transportation lines to the Belyea Corporation of Los Angeles, transferring its right of operation west into New Mexico which seems to have ultimately included Arizona. Other transfers were made to different transportation and hauling...