Arkansas-Best Freight System v. United States, No. FS-72-C-65.

• Court: United States District Courts. 8th Circuit. Western District of Arkansas
• Writing for the Court: HENLEY, Circuit , WILLIAMS, , and MILLER, Senior
• Citation: 399 F. Supp. 157
• Parties: ARKANSAS-BEST FREIGHT SYSTEM, et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, Bowman Transportation, Inc., Intervening-Defendant.
• Docket Number: No. FS-72-C-65.
• Decision Date: 02 September 1975

399 F. Supp. 157

ARKANSAS-BEST FREIGHT SYSTEM, et al., Plaintiffs,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants,
Bowman Transportation, Inc., Intervening-Defendant.

No. FS-72-C-65.

United States District Court, W. D. Arkansas, Fort Smith Division.

September 2, 1975.

399 F. Supp. 158

Thomas Harper and Don A. Smith, Harper, Young & Smith, Ft. Smith, Ark., Phineas Stevens, Jackson, Miss., Frank W. Taylor, Jr., and Wentworth E. Griffin, Kansas City, Mo., for plaintiffs.

Thomas E. Kauper, Asst. Atty. Gen., John H. D. Wigger, Atty., Dept. of Justice, Fritz R. Kahn, Gen. Counsel, ICC, Richard H. Streeter, Atty., ICC, Washington, D. C., Robert E. Johnson, U. S. Atty., Ft. Smith, Ark., for defendants.

Robert L. Jones, Jr., Jones, Gilbreath & Jones, Ft. Smith, Ark., Maurice F. Bishop, Bishop, Sweeney & Colvin, Birmingham, Ala., for intervenor, Bowman Transportation Co.

Before HENLEY, Circuit Judge, WILLIAMS, Chief District Judge, and MILLER, Senior District Judge.

JOHN E. MILLER, Senior District Judge.

OPINION ON REMAND

Involved in the prior decision of September 11, 1973, of this court, 364 F. Supp. 1239, was the review of orders of the Interstate Commerce Commission ("the Commission") granting certificates of public convenience and necessity

399 F. Supp. 159

to Red Ball Motor Freight, Inc., Johnson Motor Lines, Inc., and Bowman Transportation, Inc. (Bowman). The Commission authorized the named carriers to extend their operations as common carriers of property over specified routes in the southeastern and southwestern portions of the United States

On November 7, 1972, this court entered an order temporarily restraining the Commission from issuing certificates of public convenience and necessity pending final hearing and determination of the action. Arkansas-Best Freight System v. United States, (W.D.Ark. 1972) 350 F.Supp. 539. The court at page 546 said:

"The plaintiffs have shown that without a stay they will suffer irreparable injury. If the Certificates of Public Convenience and Necessity are issued to Red Ball, Bowman and Johnson under the authority granted in the orders questioned in this proceeding, those carriers will immediately proceed to provide service to the public in accordance with the provisions of the orders. This will necessarily cause a diversion from plaintiffs of substantial volume of traffic which they are now handling and revenue derived therefrom and inflict an irreparable injury on the business of the plaintiffs which can never be recouped even if they should prevail on the merits of the action."

In due time the case was fully briefed and orally argued. On September 11, 1973, the court filed its opinion holding that the orders of the Commission extending the operations of Red Ball, Johnson and Bowman were invalid and enjoined the enforcement thereof. 364 F.Supp. 1239.

On appeal, Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L. Ed.2d 447, the Supreme Court on December 23, 1974, reversed and remanded. Rehearing denied February 24, 1975.

The Court upheld the Commission's grant of certificates to Red Ball and Johnson. It also upheld the grant of a certificate to Bowman insofar as it involved authority embraced within its application, but remanded for our further consideration the issue involving the Commission's grant of authority to Bowman that "exceeded that set forth in Bowman's application."

Relative thereto, the Supreme Court in Section V of its opinion stated:

"Our opinion disposes of appellees' objections to the Commission's order insofar as it granted the applications of Johnson and Red Ball. As to appellant Bowman, however, an issue remains. In granting Bowman a certificate the Commission noted that the authority sought by Bowman exceeded that set forth in Bowman's application. The `excess' was granted, subject to a condition precedent of publication in the Federal Register of Bowman's request for the excess authority. Various appellees filed objections to the augmented authority sought by Bowman, which the Commission overruled. Appellees challenged the Commission's procedure in the District Court on a variety of grounds, and though the District Court indicated disapproval of the Commission's action, the court did not have to rule on the merits of appellees' objections since it set aside the Commission's approval of all the applications.

"While we have on occasion decided residual issues in the interest of an expeditious conclusion of protracted litigation, see Consolo v. FMC, 383 U. S. 607, 621 86 S.Ct. 1018, 16 L.Ed.2d 131, we believe that the issue of conformity of the Bowman certificate to its application is one for the District Court. The issue was not briefed or argued here, owing to the limitations set forth in our order noting probable jurisdiction. And while the District Court spoke of the Commission's action in this regard, we do not construe its expressions as a final ruling, since they were unnecessary to the District Court's disposition of the case. Accordingly,

399 F. Supp. 160

the issue remains open on remand.

"We hasten to add, however, that our remand provides no basis for depriving Bowman of authority conferred by the Commission that was within its original application."

On March 5, 1975, this court in accordance with the mandate of the Supreme Court entered an order dissolving the injunction previously entered enjoining the issuance of the certificates of public convenience and necessity to Johnson and Red Ball.

On March 25, 1975, the court considered paragraph V of the opinion of the Supreme Court, and entered the following order:

"IT IS ORDERED, THAT, pursuant to the decision and mandate of the Supreme Court of the United States in 73-1055, Bowman Transportation, Inc. vs. Arkansas-Best Freight System, Inc., et al., the permanent injunction previously rendered by this Court enjoining the issuance of a certificate of public convenience and necessity to Bowman Transportation, Inc. be and is hereby modified and partially dissolved to permit the issuance of a certificate of public convenience and necessity conforming to the Order of the Interstate Commerce Commission in Herrin Transportation Co., Extension — Atlanta, Georgia, 114 M.C.C. 571, except that said authority shall pending judicial determination of the issues specifically preclude the tacking, joining or combining of said authority granted in 114 M.C.C. 571 to that authority granted in Bowman Transportation, Inc. — Purchase (Part) — Alabama Highway Express, Inc., decided July 8, 1968 in No. MC-F-9921, and shall further be restricted so as to preclude any authorization in said authority for service by Bowman Transportation, Inc. of the junction of U. S. Highways 11 and 80 and Interstate Highway 59 at or near Toomsuba, Mississippi for any purpose or the including of Montgomery, Alabama in the restrictive language.

"IT IS FURTHER ORDERED, THAT, this Court shall retain jurisdiction of this matter for the purpose of determining the issues of whether or not the authority granted in 114 M.C.C. 571 shall be permanently retricted to preclude the tacking, joining or combining of said authority granted in Bowman Transportation, Inc. — Purchase (Part) — Alabama Highway Express, Inc., decided July 8, 1968 in No. MC-F-9921, and shall further be restricted so as to preclude any authorization in said authority for service by Bowman Transportation, Inc. of the junction of U. S. Highways 11 and 80 and Interstate Highway 59 at or near Toomsuba, Mississippi for any purpose or the including of Montgomery, Alabama in the restrictive language.

"This Court also retains jurisdiction on issues relating to the costs taxed by the Supreme Court."

All adjudicated costs have been paid by plaintiffs.

The Bowman application is thus before the court for review on the limited issue set forth in the order of remand.

All parties have filed extensive briefs and orally argued their contentions, all of which together with applicable portions of the pleadings have been carefully considered by the court.

Counsel for the United States and Bowman state that the limited issue involves the question "Whether the Commission's grant of authority greater than that initially proposed by a motor carrier applicant after finding a public need therefore and after republication of the enlarged grant and consideration of objections thereto is lawful and correct." They also contend that this court should limit its consideration to only one portion of the authority granted by the Commission that exceeded the authority requested in the application. This court does not agree that its review is so limited.

399 F. Supp. 161

It is only necessary to read and keep in mind what the Supreme Court said in section V of its opinion as hereinbefore set forth in full

The plaintiffs¹ contend that the grant to Bowman clearly and materially exceeded the authority that it described and set forth in its application.

At the beginning of the hearing Bowman proposed an amendment to its application which reduced rather than enlarged the scope of its application. The amendment was accepted by plaintiffs and approved by the Commission.

In considering the issue as stated by the Supreme Court in its remand, we have given careful consideration to the principles discussed and applied by the Supreme Court in its review of this court's prior decision. We have endeavored to give to the Commission's order every possible presumption of correctness and to resolve every ambiguity in a way that would support the conclusions of the agency.²

In this court's opinion of September 11, 1973, the court, beginning at page 1255 of 364 F.Supp. said:

"The grant to Bowman, exceeding the scope of its application, was described in a Federal Register notice affording interested parties an opportunity to petition for reopening or reconsideration of that application. Several carriers, including ABF, filed

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