MP & St. L. Express, Inc. v. United States

• Decision Date: 12 August 1958
• Docket Number: Civ. A. No. 1028.
• Parties: M. P. & ST. L. EXPRESS, INC., Coastal Leasing Company, Inc., W. L. Swain, Jr., and Robert S. Reese, Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Western District of Kentucky

165 F. Supp. 677

M. P. & ST. L. EXPRESS, INC., Coastal Leasing Company, Inc., W. L. Swain, Jr., and Robert S. Reese, Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. 1028.

United States District Court W. D. Kentucky, Paducah Division.

August 12, 1958.

Melvin H. Purvis, Florence, S. C., Boyd & Boyd, Paducah, Ky., for plaintiffs.

Victor R. Hansen, Asst. Atty Gen., J. Leonard Walker, U. S. Atty., Louisville, Ky., Charles R. Esherick, Atty., Dept. of Justice, Washington, D. C., for defendant United States.

Robert W. Ginnane, Gen. Counsel, Carroll T. Prince, Jr., Atty., James Y. Piper, Asst. Gen. Counsel, Charlie H. Johns, Jr., Associate Gen. Counsel, I. C. C., Washington, D. C., for defendant Interstate Commerce Commission.

Before SHACKELFORD MILLER, Jr., Circuit Judge, BROOKS, District Judge, and SHELBOURNE, Chief Judge.

PER CURIAM.

June 27, 1958, M. P. & St. L. Express, Inc., Coastal Leasing Company, Inc., W. L. Swain, Jr., and Robert S. Reese filed this action in this Court, claiming jurisdiction under Section 1336, Title 28 United States Code, seeking to enjoin, annul, and set aside orders of the Inter-State Commerce Commission issued on April 11, 1958, and June 9, 1958, and seeking an interlocutory order authorizing and allowing Herrin Transportation Company, Inc., to take over the managerial control of plaintiff M. P. & St. L. Express, Inc., pending the hearing and determination of this action.

M. P. & St. L. Express, Inc., is a motor carrier subject to the provisions of Part II of the Motor Carriers Act of 1935; plaintiff Coastal Leasing Company, Inc., is alleged to be one of the largest creditors of M. P. & St. L. Express, and plaintiffs W. L. Swain, Jr., and Robert S. Reese are alleged to hold equitable rights for the acquisition of all the capital stock of M. P. & St. L. Express.

The order of the Interstate Commerce Commission issued April 11, 1958, denied an application for temporary operation of M. P. & St. L. Express by Herrin Transporation Company under Section 210a(b) of the Interstate Commerce Act. The order of June 9, 1958, denied an application to the Commission to reconsider the order of April 11, 1958.

Section 210a(b) of the Interstate Commerce Act, 49 U.S.C. § 310a(b), provides:

"Pending the determination of an application filed with the Commission for approval of a consolidation or merger of the properties of two or more motor carriers, or of a purchase, lease, or contract to operate the properties of one or more motor carriers, the Commission may, in its discretion, and without hearings or other proceedings, grant temporary approval, for a period not exceeding one hundred and eighty days, of the operation of the motor carrier properties sought to be acquired by the person proposing in such pending application to acquire such properties, if it shall appear that failure to grant such temporary approval may result in destruction of or injury to such motor carrier properties sought to be acquired, or to interfere substantially with their future usefulness in the performance of adequate and continuous service to the public."

A temporary restraining order was entered, upon the execution of appropriate bond, on June 28, 1958, suspending the operation and effectiveness of the orders of the Interstate Commerce Commission of April 11, 1958, and June 9, 1958, until July 3, 1958, on which date the action was set on a rule against the defendants to show cause why a preliminary injunction staying and enjoining the effect of the orders of April 11, 1958, and June 9, 1958, during the pendency of this action, should not be entered. A hearing was held on July 3, 1958, and on that date the temporary restraining order, by agreement of counsel, was extended subject to further orders of the Court.

The application of Herrin Transportation Company to acquire permanent control of M. P. & St. L. Express is not involved in this action. This proceeding involves only the application of Herrin, under Section 310a(b) for temporary authority for a period not exceeding 180 days.

It is stipulated that no formal hearing was held before an examiner of the Interstate Commerce Commission, but that the Commission did hear and consider the evidence, representations, and arguments made by and presented by all the parties on the application which was denied by the order of April 11, 1958, and on the application for reconsideration of that order, which was denied following the hearing on June 9, 1958.

Section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, so far as is pertinent here, provides:

"Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.

"(a) Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.

* * * * * *

"(e) So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall * * * (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; * * *."

The jurisdiction of this Court is invoked under another federal statute, 28 U.S. C. § 1336, which provides:

"Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission."

It is apparent that the plaintiffs are seeking two elements of relief, (1) to vacate and set aside the orders of April 11, 1958, and June 9, 1958, because the decision of the Commission is arbitrary and capricious and (2) to mandatorily enjoin the Commission to grant to Herrin Transportation Company the temporary authority to control and operate M. P. & St. L. Express, under the provisions of 49 U.S.C. § 310a(b), pending the determination of Herrin's application to acquire permanently the M. P. & St. L. Express.

We have concluded that the Commission's orders, of which the plaintiffs complain, are not orders subject to review by us.

If the question is controlled by the Administrative Procedure Act, as is urged upon us by the Government, it seems clear that the order is not reviewable. Section 10 of the Act provides that any person adversely affected or aggrieved by any agency action shall be entitled to judicial review thereof, "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion." 5 U.S.C. § 1009. The order of the Commission in the present case was one committed to agency discretion. Section 210a(b) of the Act, which authorizes the Commission to grant temporary approval of the operation of a motor carrier by the person...