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

CourtUnited States District Courts. 8th Circuit. Western District of Arkansas
Writing for the CourtMEHAFFY, Circuit , and MILLER and WILLIAMS
Citation364 F. Supp. 1239
PartiesARKANSAS-BEST FREIGHT SYSTEM, INC., an Arkansas corporation, et al., Plaintiffs, Roadway Express, Inc., et al., Intervening Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, Red Ball Motor Freight, Inc., et al., Intervening Defendants.
Docket NumberNo. FS-72-C-65.
Decision Date04 October 1973

364 F. Supp. 1239

ARKANSAS-BEST FREIGHT SYSTEM, INC., an Arkansas corporation, et al., Plaintiffs,
Roadway Express, Inc., et al., Intervening Plaintiffs,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants, Red Ball Motor Freight, Inc., et al., Intervening Defendants.

No. FS-72-C-65.

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

September 11, 1973.

On Motion to Amend Judgment October 4, 1973.


364 F. Supp. 1240
COPYRIGHT MATERIAL OMITTED
364 F. Supp. 1241
Don A. Smith, Harper, Young & Smith, Fort Smith, Ark., Drew L. Carraway, Rice, Carpenter & Carraway, Washington, D. C., Phineas Stevens, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss., Robert E. Joyner,
364 F. Supp. 1242
Joyner, Goff & Simms, Memphis, Tenn., Phillip Robinson, Robinson, Felts, Starnes & Nations, Austin, Tex., Frank W. Taylor, Jr., Reeder, Dysart, Sanders & Taylor, Kansas City, Mo., M. Ward Bailey, Christopher, Bailey & Taylor, Fort Worth, Tex., William O. Turney, Turney & Turney, Washington, D. C., for plaintiffs

Robert E. Johnson, Acting U. S. Atty., Fort Smith, Ark., Fritz R. Kahn, Gen. Counsel, I.C.C., Seymour Glanzer, Atty., I.C.C., Washington, D. C., for defendants.

Donald E. Cross, Rea, Cross, Knebel, Washington, D. C., Maurice F. Bishop, Bishop & Carlton, Birmingham, Ala., Jerry C. Prestidge, Clark, Thomas, Harris, Denius & Winters, Austin, Tex., Courts Oulahan, Rhyne & Rhyne, Washington, D. C., Robert L. Jones, Jr., Jones, Gilbreath & Jones, Fort Smith, Ark., for intervening defendants.

Before MEHAFFY, Circuit Judge, and MILLER and WILLIAMS, District Judges.

JOHN E. MILLER, Senior District Judge.

The plaintiffs, 19 in number, bring this action to set aside, vacate, suspend, enjoin and annul that portion of the order of the Interstate Commerce Commission (ICC) that authorizes the issuance of a Certificate of Public Convenience and Necessity to Red Ball Motor Freight, Inc., in Docket No. MC-2229 (Sub-No. 132), to Bowman Transportation, Inc., in Docket No. MC-94201 (Sub-No. 56), and to Johnson Motor Lines, Inc., in Docket No. MC-106401 (Sub-No. 18) (hereinafter referred to as Red Ball, Bowman and Johnson, respectively, or applicants collectively). The applications were consolidated with others under Docket No. MC-1124 (Sub-No. 206) which was initially entitled "Herrin Transportation Company, Extension-Atlanta, Ga.," and was re-entitled "McLean Trucking Company, Extension-Atlanta, Ga."

This action was commenced pursuant to 28 U.S.C.A. ? 1336, conferring jurisdiction upon this court, and ?? 2284 and 2321 through 2325, inclusive, of said Title, together with 49 U.S.C.A. ?? 305(g), 305(h), and 5 U.S.C.A. ?? 701 through 706, the Administrative Procedure Act, all providing for the procedure herein.

Venue exists under 28 U.S.C.A. ? 1398, since plaintiffs Arkansas-Best Freight System, Inc., and Mercury Motors, Inc., are residents of and maintain their principal offices and places of business in Fort Smith, Arkansas.

On October 12, 1972, Red Ball, upon motion was allowed to intervene as a party defendant, and on October 12 it filed its original answer, and on December 4, 1972, filed its first amended answer. In the first amended answer, it alleged that the Commission entered an order on October 6, 1972, denying the petitions of plaintiffs seeking a finding that an issue of general transportation importance is involved in the proceeding.

On October 12, 1972, the court, upon motion, allowed Johnson to intervene as a defendant, and on the same day it filed its answer in which it denied that certain of the plaintiffs had appeared as protestants in opposition to the granting of the operating authority applied for by it.

On October 25, 1972, Bowman, upon motion, was allowed to intervene as a defendant, and on the same date it filed its answer, in which it alleged that certain of the plaintiffs did not file a petition for reconsideration in the proceedings.

On October 31, 1972, the court, upon motion, granted Roadway Express, Inc., and Roadway Express, Inc., of Mississippi permission for leave to intervene as plaintiffs.

On November 1, 1972, the court allowed a group of shippers, 41 in number, who had appeared as witnesses before the Commission on behalf of the Johnson application, to intervene in support of the application.

On December 4, 1972, defendants USA and ICC filed their joint answer.

364 F. Supp. 1243

On January 2, 1973, the court, upon motion, granted Jack Cole-Dixie Highway Company leave to intervene in support of the plaintiffs' complaint.

The authority granted Red Ball, Bowman and Johnson authorizes such carriers to extend their existing operations in the transportation of general commodities by motor vehicle over regular routes between specific points, generally in the Southeastern and Southwestern portions of the United States. Each plaintiff and intervening plaintiff is a motor carrier that participated in the proceedings before the Commission as a protestant in opposition to one or more of the applications granted by the Commission.

Promptly after the filing of the complaint, a hearing was held before Senior District Judge John E. Miller on plaintiffs' application for a temporary restraining order suspending the operation of the Commission's orders pending a final hearing and determination of this action. The temporary restraining order was issued pursuant to 28 U.S.C.A. ? 2284(3). Arkansas-Best Freight System, Inc. v. United States, 350 F.Supp. 539 (1972).

After extensive briefs had been filed by all parties, plaintiffs sought to supplement their complaint so as to seek review of orders of the Commission issued subsequent to the filing of the initial complaint. The subsequent orders granted operating authority to a fourth motor carrier, Jones Truck Lines, Inc., on its application heard as a part of the consolidated proceeding that resulted in the issuance of authority to Red Ball, Bowman and Johnson. Jones Truck Lines, Inc., Extension-Atlanta, Ga., 117 M.C.C. 586. The motion to file the supplemental complaint was denied, after a full hearing before the court. (Appendix A.)

In 1965, the Commission published notices describing the filing of a number of extensive motor carrier applications. Following a pre-hearing conference, ten out of twenty-one applications considered at the conference were selected for hearing on a consolidated record. These applications involved an extensive network of routes extending generally across the Southeastern and Southwestern portions of the country. Carriers operating predominantly in the Southeast sought to extend their operations into the Southwest. Carriers operating in the Southwest sought extensions into the Southeast. Most of the applications were filed within a short period of time and it is obvious that some were primarily defensive in nature. For example, applications by Southeastern carriers to serve major points in the Southwest were met by applications by Southwestern carriers to operate over the same routes to serve points in the Southeast presently served by the Southeastern applicants. Initially, each applicant, including Red Ball, Bowman and Johnson, opposed the other applications that sought to duplicate their own routes, but in prosecuting their applications, the various applicants adopted different strategies. Some concentrated on their role as protestants in opposition to the others. Some, including Bowman (a Southeastern carrier), abandoned their role as protestants and concentrated on their role as applicants. Johnson (a Southeastern carrier) emphasized its role as applicant, but remained as a protestant in other proceedings. Red Ball (a Southwestern carrier) maintained its dual role of applicant and protestant throughout the proceeding, dividing its presentation of evidence accordingly.

The consolidated proceeding was assigned for hearing before two Hearing Examiners (now termed Administrative Law Judges) who conducted hearings over a period of eighteen months in Washington, D. C., Atlanta, Ga., Dallas and Houston, Texas, New Orleans, La., Kansas City, Mo., Tulsa, Okla., and Memphis, Tenn., such cities (other than Washington) being located on the various routes involved in the applications. The hearing resulted in "what is perhaps the most extensive record ever developed in connection with a single

364 F. Supp. 1244
group of motor carrier application proceedings before this Commission." 114 M.C.C. at 573. The transcript of testimony covers 23,423 pages and there are 1,989 exhibits. A total of 950 witnesses testified on behalf of the ten applicants, including 933 public witnesses engaged in shipping or receiving freight by motor carrier

A total of 66 rail and motor carriers entered appearances in opposition to the applications. Forty-eight of the protestants offered evidence through the testimony of 62 witnesses and numerous exhibits.

Extensive briefs were filed before the Examiners. These briefs included two sets of detailed abstracts of the evidence, one submitted jointly on behalf of Bowman, Johnson and Jones; the other submitted jointly on behalf of various applicants and protestants, including Red Ball and plaintiffs. The two sets of abstracts are strikingly similar and provide an accurate summary of the evidence of record.

The parties required seven months for the preparation of their post-hearing briefs, following which the Examiners issued their report and recommended order on November 19, 1969, twenty-seven months after the close of the hearing. The Examiners concluded that none of the applicants had established that its application was justified by the public convenience and necessity, concluding, instead, that approval of any of the applications would result in a deterioration rather than an improvement of existing carrier service, contrary to the public interest. They recommended, therefore, the denial of all applications.

On the day preceding the extended due date for the filing of...

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