Andrews Van Lines, Inc. v. United States

• Decision Date: 25 October 1966
• Docket Number: Civ. A. No. 980 L.
• Parties: ANDREWS VAN LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and North American Van Lines, Inc., Alaska Orient Van Service, Inc., and Smyth Overseas Van Lines, Inc., Intervening Defendants.
• Court: U.S. District Court — District of Nebraska

259 F. Supp. 468

ANDREWS VAN LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and North American Van Lines, Inc., Alaska Orient Van Service, Inc., and Smyth Overseas Van Lines, Inc., Intervening Defendants.¹

Civ. A. No. 980 L.

United States District Court D. Nebraska.

October 25, 1966.

J. Max Harding, Charles J. Kimball, and Duane W. Acklie, Nelson, Harding, Acklie, Leonard & Tate, Lincoln, Neb., for plaintiff.

Donald F. Turner, Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., and Theodore L. Richling, U. S. Atty., and Russell Blumenthal, Asst. U. S. Atty., Omaha, Neb., for defendant, United States.

Robert W. Ginnane, Gen. Counsel, Leonard S. Goodman, Asst. Gen. Counsel, Manny H. Smith, Atty., Interstate Commerce Commission, Washington, D. C., Theodore L. Richling, U. S. Atty., and Russell Blumenthal, Asst. U. S. Atty., Omaha, Neb., for defendant, Interstate Commerce Commission.

Martin A. Weissert, Fort Wayne, Ind., and Marshall D. Becker, Stern, Harris, Feldman & Becker, Omaha, Neb., for intervening defendant, North American Van Lines, Inc.

Alan F. Wohlstetter, and Joseph F. Mullins, Jr., Denning & Wohlstetter, Washington, D. C., and Stern, Harris, Feldman & Becker, Omaha, Neb., for intervening defendants, Alaska Orient Van Service, Inc., and Smyth Overseas Van Lines, Inc.

Before JOHNSEN, Senior Circuit Judge, VAN PELT, District Judge, and DELEHANT, Senior District Judge.

MEMORANDUM

DELEHANT, Senior District Judge.

The jurisdiction of this court is properly claimed under Title 28 U.S.C. § 1336(a), its venue by virtue of Title 28 U.S.C. § 1398(a).

Plaintiff is a corporation organized under the laws of Nebraska, with its principal place of business in the City of Norfolk, in such state, and is, therefore, a citizen of Nebraska. It is and, for several years heretofore, has been engaged in business as a common carrier by motor vehicle of property, particularly of household goods, in interstate commerce, operating under and in pursuance of sundry certificates of public convenience and necessity issued by the Interstate Commerce Commission. (See Docket No. MC-26825, and Subs. thereto)

Proceeding within Title 28 U.S.C., chapter 157, plaintiff, on June 28, 1965, instituted herein the present action to set aside, vacate and annul an order, or orders, of the Interstate Commerce Commission, as identified infra. Responsive to the prayer of plaintiff's complaint, and in accordance with Title 28 U.S.C., §§ 2284(1) and 2325, designation of a three judge court "to hear and determine said action and proceeding" was timely made on July 8, 1965, by the then Chief Judge of the Court of Appeals of the Eighth Judicial Circuit (filing 4).²

The historical background of the institution in this court of the present proceeding is now recalled with appropriate brevity. What is directly involved in it is the authority to transport "household goods" in interstate commerce. In paragraph numbered 5 of its complaint, plaintiff correctly asserts that "on various dates from 1958 to 1964 plaintiff and 11 other common carriers of household goods, filed applications before the Interstate Commerce Commission seeking certificates of public convenience and necessity, authorizing extension of their operations to include the transportation of household goods as defined by the Commission between points in Alaska on the one hand, and on the other, points in the continental United States other than Alaska. Certain carriers also sought authority to transport such commodities between points in Alaska; plaintiff did not seek such authority." (emphasis added)³ Those applications were resisted by various motor carriers, including (in addition to others) the intervening defendants above identified. The "lead case docket" in the proceeding thus precipitated was "United Van Lines, Inc., Extension, Alaska, No. MC-67234, Sub-No. 2." The applications were referred to an Examiner of the Commission for hearing and report, and for the recommendation of appropriate order or orders. Such hearing was had, in fact, involving several hearings at different places, but ultimately a hearing de novo at Seattle, Washington, from May 18 through May 22, 1964. It included the presentation of evidence and testimony tendered in behalf of the parties litigant, and, among other items, evidence and testimony from representatives of national governmental entities, principally the Household Goods Traffic Division of the Defense Transportation Management Service, infra.

The Examiner, in and by a report and recommended order served on September 16, 1964, found that public convenience and necessity were not shown to require operation by the applicants (including plaintiff) as common carriers by motor vehicle of household goods between points in Alaska on the one hand, and, on the other, points in the continental United States other than Alaska, or between points in Alaska,⁴ and recommended an order accordingly. The plaintiff, on November 4, 1964, tendered exceptions to the Examiner's Report and Recommendation.

On April 29, 1965, service was made of the Report and Order of the Commission, by its Division 1, wherein, pursuant to a decision under date of April 23, 1965, it was found that public convenience and necessity were not shown to require operation by the applicants, including the plaintiff, as common carriers by motor vehicle of household goods between points in Alaska, and points in the continental United States other than Alaska, and was foreshadowed that an order would be entered accordingly.⁵ The plaintiff, thereupon, filed with the Commission a petition for a finding of general transportation importance, and in connection with it, a petition for reconsideration.

But on June 10, 1965, service was effected of the Order of the Interstate Commerce Commission, made and given at a general session of the Commission on May 28, 1965, wherein and whereby the plaintiff's petition for a finding of general transportation importance (along with, and in the same manner as, like petitions of United Van Lines, Inc., Allied Van Lines, Inc., and Aero Mayflower Transit Company, Inc.) was "denied, for the reason, that in the judgment of the Commission, no issues of general transportation importance are involved." And, as plaintiff alleges, the Commission "shortly thereafter" rejected plaintiff's petition for reconsideration," supra.

Promptly thereafter, and on June 28, 1965, plaintiff instituted this proceeding through the filing herein of its complaint (filing 1). That pleading, preliminary to its prayer, is set forth in twelve numbered paragraphs (exclusive of the unnecessary assignment of number 13 to the prayer). Of such paragraphs, those numbered 1 to 9, both inclusive, allege the historical background which has just been restated, and paragraph numbered 12 asserts the nature of the plaintiff's financial interest in the litigation and allegedly prospective damage, if it be not successful herein. In paragraphs numbered 10 and 11 of the complaint, plaintiff undertakes to specify the respects in which it challenges the validity of the Commission's findings and orders. It appears to be in order immediately hereinafter to recall those specifications with reasonable detail.

In paragraph numbered 10, plaintiff charges that the orders of the Commission:

(1) are contrary to the provisions of the National Transportation Policy (for the source of which it cites Title 49 U.S.C., preceding section 301, and also sections 304, 306 and 307);

(2) are not supported by the evidence;

(3) are without support in fact or in law; and,

(4) would deprive plaintiff of a substantial amount of motor carrier traffic which it would otherwise receive.

And in paragraph numbered 11, plaintiff charges that the orders, and the Commission's action in their entry, are arbitrary, capricious and unreasonable, and constitute an abuse of administrative discretion in that they:

A. Contain the illogical, unwarranted and unsupported assumption that public convenience and necessity have not been shown to require the proposed service of plaintiff;

B. Fail properly to appraise and evaluate the evidence of record in light of the standards imposed by Title 49 U.S.C., sections 306 and 307, and the standards developed by the Commission for the disposition of common carrier applications;

C. Are based on an interpretation of the facts which is general, conclusionary and not specific, and which is unwarranted, ambiguous and not based on the record and the need for services shown therein;

D. Are erroneous in concluding that existing service is adequate for the involved shippers' needs when, even if such services were adequate, the reason for such adequacy is the fact that the shippers have had available the services of several carriers, including the plaintiff, in recent years;

E. Would deprive the involved shippers of the flexible multi-mode service they have had in the past, and require at present and in the future;

F. Disclose that the Commission has (1) disregarded, or improperly discounted, the evidence showing the shippers' need for single-line service in both all highway and land-sea-land modes of transportation, (2) substantially understated the volume of the subject traffic involved, and (3) failed to consider the expanding future service requirements of shippers of the subject traffic and the importance of adequate direct line motor carrier service to the growth of the shippers in the areas in which they do business;

G. (1) Misstate, and fail to give proper weight to, the evidence showing the effect of a denial of the application to the plaintiff, and (2) fail to distinguish between carriers such as the plaintiff herein, who have conducted over-the-highway operations between Alaska and the continental states other than Alaska, and the other applicants who have never conducted such operations;

H. Contrary to the evidence and

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