Aero Mayflower Transit Co., Inc. v. I.C.C., No. 81-1951

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON; SPOTTSWOOD W. ROBINSON, III
Citation228 U.S.App. D.C. 438,711 F.2d 224
PartiesAERO MAYFLOWER TRANSIT COMPANY, INC., et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Gollott & Sons Transfer & Storage, Inc., Intervenors.
Docket NumberNo. 81-1951
Decision Date17 June 1983

Page 224

711 F.2d 224
228 U.S.App.D.C. 438
AERO MAYFLOWER TRANSIT COMPANY, INC., et al., Petitioners,
v.
INTERSTATE COMMERCE COMMISSION and United States of America,
Respondents,
Gollott & Sons Transfer & Storage, Inc., Intervenors.
No. 81-1951.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 2, 1982.
Decided June 17, 1983.

Petition for Review of an Order of the Interstate Commerce commission.

Alan F. Wohlstetter, with whom Stanley I. Goldman, Washington, D.C., was on brief, for petitioners.

Charles A. Stark, I.C.C., with whom Robert S. Burk, Acting Gen. Counsel, Ellen K. Schall, Deputy Associate Gen. Counsel, I.C.C., and Robert B. Nicholson and Marion L. Jetton, Attys., Dept. of Justice, Washington, D.C., were on brief, for respondents.

Robert J. Gallagher, Washington, D.C., entered an appearance for intervenors.

Before ROBINSON, Chief Judge, ROBB,

Page 225

[228 U.S.App.D.C. 439] Senior Circuit Judge, and LARSON, * Senior District Judge.

Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Chief Judge:

Petitioners challenge on both substantive and procedural grounds an order of the Interstate Commerce Commission granting the application of Gollott & Sons Transfer & Storage, Inc., for a permit to transport specified types of personal property in interstate commerce as a motor contract carrier. Our analysis of petitioners' claims reveals no reversible error, and we accordingly affirm.

I. THE FACTUAL BACKGROUND

Gollott & Sons filed with the Commission an application, buttressed by two verified statements, for a permit to operate as a motor contract carrier to transport household goods, unaccompanied baggage, and used cars in interstate commerce under an agreement with Gulf Forwarding, Inc. 1 This contractual arrangement contemplated that Gollott & Sons would designate two vehicles 2 of which Gulf Forwarding would have preferential use continuously over a period of time, 3 later ascertained to be one year. 4 As preferential user of these vehicles, Gulf Forwarding would have power not only to ensure their availability to transport any and all of its intended shipments of the described personalty, but also to prohibit their hire by other shippers even when Gulf Forwarding did not use them fully or at all. Conversely, the contracting parties agreed that, if the consent of Gulf Forwarding was procured, Gollott & Sons would have authority to use these vehicles for the benefit of other shippers when Gulf Forwarding had no transportation requirements, and even to haul other shippers' goods side-by-side with Gulf Forwarding's freight when the vehicles had excess capacity. Finally, in an effort to demonstrate the need for the authority requested, Gollott & Sons represented that it would move lightweight or shorthaul shipments and perform residential pickups and deliveries for Gulf Forwarding, which services it claimed to be [228 U.S.App.D.C. 440] unavailable from other carriers yet necessary

Page 226

to satisfy the shipper's distinct needs. 5

Solely on the basis of the application and accompanying verified statements, the Commission granted the application preliminarily and published a statement to that effect in the Federal Register. 6 This decision-notice contained neither findings of fact nor conclusions of law in support of the award. 7 Petitioners then protested the Commission's decision, urging various grounds for setting the preliminary grant aside. 8

In particular, petitioners contended that Gollott & Sons had neither assigned specified vehicles for the exclusive use of Gulf Forwarding over a definite period of time nor contracted to provide services necessary to satisfy any distinct needs Gulf Forwarding might possess, and that the applicant had therefore failed to qualify as a motor contract carrier under Section 10102(13)(B) of the Interstate Commerce Act. 9 Petitioners further maintained that transportation of this type of personalty, especially on behalf of a commonly-controlled affiliate such as Gulf Forwarding, constituted common--not contract--carriage, 10 that the vehicles purportedly dedicated by Gollott & Sons to the use of Gulf Forwarding would clearly be insufficient to meet the latter's needs, 11 and that, in any event, this arrangement would not promote either the public interest or the national transportation policy as required by Section 10923(a)(2) of the Interstate Commerce Act. 12 Finally, petitioners moved for vacatur of the preliminary grant on the ground that the brevity of the decision-notice violated Section 8(b) of the Administrative Procedure Act, as amended, 13 and requested additionally that the Commission hold an evidentiary hearing and grant them leave to depose the applicant's witnesses in aid thereof. 14

After Gollott & Sons filed a statement in reply, 15 a Commission Review Board upheld the preliminary decision to grant the application. 16

Page 227

[228 U.S.App.D.C. 441] 6] The Board fortified its decision by finding, first, that the contemplated contractual arrangement qualified Gollott & Sons for motor contract carrier status under Section 10102(13)(B) 17 and, second, that the arrangement would serve the public interest because Gollott & Sons proposed to provide Gulf Forwarding with otherwise unavailable services and none of the petitioners would suffer significant harm. 18 At the same time, the Board denied the several outstanding petitions, holding that any deficiencies in the decision-notice had been cured by subsequent proceedings, and that petitioners had not sufficiently demonstrated that an evidentiary hearing or depositions would produce information relevant to the Board's deliberations to justify employment of those procedures. 19 Expectably, petitioners appealed from the Board's decision, 20 which the Commission affirmed in summary fashion. 21 Review by this court was then sought. 22

II. THE SUBSTANTIVE ISSUES

Petitioners' principal claim is that Gollott & Sons has not qualified for a permit as a motor contract carrier under Section 10102(13)(B) of the Interstate Commerce Act. 23 This provision specifies in pertinent part that status as a motor contract carrier can be acquired only by assigning specified motor vehicles "for a continuing period of time for the exclusive use of," 24 or by furnishing motor vehicle transportation "designed to meet the distinct needs of," 25 one or more shippers. It is clear from a reading of the section that an applicant need satisfy only one of these demands.

The Commission found that the contractual arrangement here at issue, by which Gollott & Sons accorded Gulf Forwarding preferential use of two designated vehicles for a period of one year, constituted sufficient dedication of these vehicles to satisfy the exclusive-use requirement of Section 10102(13)(B)(i). Petitioners, on their part, have advanced a literal and narrow reading of this provision, arguing in reliance thereon that the Commission's construction is impermissibly expansive. We find the Commission's outcome consistent with both its long-established interpretation of this section and the national transportation policy, as amended by the Motor Carrier Act of 1980, 26 and accordingly reject petitioners' contention.

Page 228

[228 U.S.App.D.C. 442] Under well-settled doctrine, a court will reject an agency's construction of a statute it administers only for "compelling" reasons, 27 provided the construction was made contemporaneously with enactment of the statute 28 and has been followed consistently 29 over a lengthy period of time. 30 Although the Commission has not heretofore decided precisely the issue implicated here, it has adhered without deviation and over many years to a particular interpretation of Section 10102(13)(B), the nascent promulgation of which was relatively concurrent with adoption of the exclusive-use test in 1957, which entails the conclusion that Gollott & Sons measures up as a motor contract carrier.

[228 U.S.App.D.C. 443] In Kansas-Arizona Motor Express, Inc.,

Page 229

Conversion Proceeding, 31 decided in 1960, the Commission first indicated that a carrier could qualify under the Interstate Commerce Act for motor contract transportation with respect to its agreement with a particular shipper even though the vehicles dedicated to that shipper could be used by other shippers at various times during the term of the agreement. The Commission held, more specifically, that the exclusive-use test did not preclude motor contract carriers from leasing their vehicles to other shippers for return trips following haulage of contracting shippers' goods, justifying this decision on the ground that backhaulage for another shipper would not have "any greater effect on the availability of applicant's equipment to its contracting shipper than would be the case with an empty movement." 32 The Commission further explicated this rationale two years later in Connell Transport Company Extension--New York, New York, 33 when it again held that backhaul-trip leasing does not negate motor contract carrier status; it stated that, when determining whether an assignment of vehicles is "exclusive,"

it is the substance of the arrangements and not their form with which we are concerned. Where there is substantial evidence of dedication of vehicles to a shipper's use under a continuing arrangement, and the facts demonstrate that this particular equipment will be constantly available to the contracting shipper in that arrangement, [backhaul-trip leasing is not inconsistent with motor contract carriage]. 34

This position later achieved its clearest and most conclusive articulation in Owens Contract Carrier Application, 35 when the Commission declared that the exclusive-use provision

does not, in our opinion, necessarily require that specific vehicles be used for one shipper to the exclusion of all other shippers; we believe that the assignment of specific vehicles to shippers is...

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  • Suntec Indus. Co. v. United States, 2016-2093
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • May 30, 2017
    ...rulemaking because the parties had actual notice of the proceedings); Aero Mayflower Transit Co., Inc. v. Interstate Commerce Comm'n , 711 F.2d 224, 232 (D.C. Cir. 1983) (denying remedy for insufficiently informative agency notice where party contesting decision learned the relevant informa......
  • Rybachek v. U.S. E.P.A., Nos. 88-7393
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 16, 1990
    ...AMA nor the Rybacheks could have been harmed by them. The prejudicial-error rule therefore applies. See Aero Mayflower Transit Co. v. ICC, 711 F.2d 224, 232 (D.C.Cir.1983) (prejudicial-error rule, mandated by the APA, means that court may not strike down agency action on basis of error unle......
  • Dan Barclay, Inc. v. Stewart & Stevenson Services, Civ. A. No. 89-2590-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • April 1, 1991
    ...rule, a court will defer to an agency's interpretation of its own regulation. Aero Mayflower Transit Co. v. Interstate Commerce Comm'n, 711 F.2d 224, 227 n. 26 (D.C.Cir. 7 The actual language in Diversey suggests that such terms are mandatory, stating that "a contract must include...." Id. ......
  • Dixon Ticonderoga Co. v. U.S. Customs and Border Prot., Slip Op. 05-46.
    • United States
    • U.S. Court of International Trade
    • April 4, 2005
    ...795, 799-800 (5th Cir.1989); United States v. Cerda-Pena, 799 F.2d 1374, 1377 (9th Cir.1986); Aero Mayflower Transit, Inc. v. ICC, 228 U.S.App. D.C. 438, 711 F.2d 224, 232 (D.C.Cir.1983); Diaz v. Department of the Air Force, 63 F.3d 1107, 1109 The statute at issue in this case is the CDSOA,......
  • Request a trial to view additional results
7 cases
  • Suntec Indus. Co. v. United States, 2016-2093
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • May 30, 2017
    ...rulemaking because the parties had actual notice of the proceedings); Aero Mayflower Transit Co., Inc. v. Interstate Commerce Comm'n , 711 F.2d 224, 232 (D.C. Cir. 1983) (denying remedy for insufficiently informative agency notice where party contesting decision learned the relevant informa......
  • Rybachek v. U.S. E.P.A., Nos. 88-7393
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 16, 1990
    ...AMA nor the Rybacheks could have been harmed by them. The prejudicial-error rule therefore applies. See Aero Mayflower Transit Co. v. ICC, 711 F.2d 224, 232 (D.C.Cir.1983) (prejudicial-error rule, mandated by the APA, means that court may not strike down agency action on basis of error unle......
  • Dan Barclay, Inc. v. Stewart & Stevenson Services, Civ. A. No. 89-2590-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • April 1, 1991
    ...rule, a court will defer to an agency's interpretation of its own regulation. Aero Mayflower Transit Co. v. Interstate Commerce Comm'n, 711 F.2d 224, 227 n. 26 (D.C.Cir. 7 The actual language in Diversey suggests that such terms are mandatory, stating that "a contract must include...." Id. ......
  • Dixon Ticonderoga Co. v. U.S. Customs and Border Prot., Slip Op. 05-46.
    • United States
    • U.S. Court of International Trade
    • April 4, 2005
    ...795, 799-800 (5th Cir.1989); United States v. Cerda-Pena, 799 F.2d 1374, 1377 (9th Cir.1986); Aero Mayflower Transit, Inc. v. ICC, 228 U.S.App. D.C. 438, 711 F.2d 224, 232 (D.C.Cir.1983); Diaz v. Department of the Air Force, 63 F.3d 1107, 1109 The statute at issue in this case is the CDSOA,......
  • Request a trial to view additional results

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