Ace Doran Hauling & Rigging Co. v. U.S.

• Decision Date: 15 December 1976
• Docket Number: No. 75-2105,75-2105
• Citation: 545 F.2d 1046
• Parties: ACE DORAN HAULING & RIGGING CO., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1046

545 F.2d 1046

ACE DORAN HAULING & RIGGING CO., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission Respondents.

No. 75-2105.

United States Court of Appeals Sixth Circuit.

Argued Oct. 11, 1976.

Decided Dec. 15, 1976.

John P. McMahon, A. Charles Tell, George, Greek, King, McMahon & McConnaughey, Columbus, Ohio, for petitioner.

R. Craig Lawrence, Raymond Michael Ripple, Gen. Counsel, I. C. C., Washington, D. C., James T. Proctor, Robert B. Nicholson, Washington, D. C., Edward H. Levi, Atty. Gen., Dept. of Justice, John H. D. Wigger, Washington, D. C., for respondents.

Before PHILLIPS, Chief Judge, and McCREE and ENGEL, Circuit Judges.

PER CURIAM.

Petitioner seeks review in this court of an order of the Interstate Commerce Commission, Docket No. MC-112304 (Sub-No. 65), which granted in part and denied in part petitioner's application for a certificate of public convenience and necessity under Section 207(a) of the Interstate Commerce Act, 49 U.S.C. § 307(a). Jurisdiction lies in this court pursuant to 28 U.S.C. § 2342.

Petitioner is a common carrier which possesses a "heavy hauler's" certificate. The authority granted by that certificate is restricted to the transportation of commodities in interstate commerce, the size and weight of which requires the use of special equipment for loading and unloading. Petitioner's difficulties with the ICC originated on April 22, 1969 with the ICC's issuance of an order in Ace Doran Hauling & Rigging Co., Investigation of Operations, 108 M.C.C. 717, interpreting the "heavy hauler" certificate as permitting the transportation of only such "bundled" or "aggregated" iron and steel commodities which required heavy equipment by virtue of the commodities' inherent nature. The Commission's order was affirmed in Pittsburgh & New England Trucking Co. v. United States, 345 F.Supp 743 (W.D.Penn.1972), aff'd, 409 U.S. 904, 93 S.Ct. 235, 34 L.Ed.2d 169. The district court held that the interpretation of the heavy hauler certificate was within the expertise and discretion of the Commission and constituted a rational attempt to draw a line between the heavy haulers and the general commodities haulers. The question was not one of technological progress but simply "an economic conflict between two groups of carriers competing for certain available traffic." Pittsburgh & New England Trucking Co., supra, at 751.

Petitioner contends that the Commission's order and its affirmance by the district court created some confusion in the carrier industry in the implementation of the heavy hauler certificate. To "clarify" its existing size and weight authority, petitioner submitted an application for a certificate of public convenience and necessity for the right to transport within the same geographical boundaries "all iron and steel articles". Petitioner contends, however, that notwithstanding the evidentiary support of shippers which detailed the numerous items of iron and steel transported by petitioner, the Administrative Law Judge arbitrarily limited the certificate to

"structural steel, iron and steel angles, bars, channels, conduits lath, piling, pipe, posts, rails, rods, roofing, tubing and wire in coils."

Petitioner basically argues that it is unnecessary to submit proof of shipper support for every conceivable iron and steel product to warrant the grant of a generic "steel and iron" certificate and the 70 items so submitted are sufficiently representative to warrant the generic description. Petitioner thus requests this court to set aside the Commission's order as arbitrary and capricious and unsupported by substantial evidence. 5 U.S.C....