B. J. McAdams, Inc. v. I. C. C., Nos. 76-1255

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before STEPHENSON, WEBSTER and HENLEY; STEPHENSON
• Citation: 551 F.2d 1112
• Parties: B. J. McADAMS, INC., Petitioner, v. The INTERSTATE COMMERCE COMMISSION and the United States of America, Respondents (two cases). B. J. McADAMS, INC., Petitioner, v. The INTERSTATE COMMERCE COMMISSION and the United States of America, Respondents, and Midwest Emery Freight System, Inc. and Hilt Truck Line, Inc., Intervenor-Respondents.
• Decision Date: 28 April 1977
• Docket Number: 76-1423,76-1337,Nos. 76-1255

Page 1112

551 F.2d 1112 B. J. McADAMS, INC., Petitioner,
v.
The INTERSTATE COMMERCE COMMISSION and the United States of
America, Respondents (two cases).
B. J. McADAMS, INC., Petitioner,
v.
The INTERSTATE COMMERCE COMMISSION and the United States of
America, Respondents,
and
Midwest Emery Freight System, Inc. and Hilt Truck Line,
Inc., Intervenor-Respondents. Nos. 76-1255, 76-1337, 76-1423. United States Court of Appeals,
Eighth Circuit. Submitted Dec. 14, 1976.
Decided March 4, 1977.
Rehearing and Rehearing En Banc Denied April 28, 1977.

Page 1113

Eugene D. Anderson (argued), Washington, D. C., and Michael G. Thompson, Smith, Williams, Friday, Eldredge & Clark, Little Rock, Ark., on brief for B. J. McAdams, Inc.

Robert L. Thompson, I. C. C., Washington, D. C., argued; Donald I. Baker, Asst. Atty. Gen., Edward E. Lawson, Jr., Atty., Dept. of Justice, Washington, D. C., for United States, and Mark L. Evans, Gen. Counsel, Charles H. White, Jr., Associate Gen. Counsel, and R. Craig Lawrence and Mary C. Swann, Attys., I. C. C., Washington, D. C., on brief, for Interstate Commerce Commission.

Richard A. Kerwin (argued), Burke, Kerwin & Towle, Chicago, Ill., on brief, for Midwest Emery Freight System, Inc. and Hilt Truck Line.

Before STEPHENSON, WEBSTER and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

B. J. McAdams, Inc. petitions for review of three final Interstate Commerce Commission orders denying its applications for certificates of public convenience and necessity for operating authority as a common carrier over irregular routes transporting candy, frozen foods and hardware supplies between various points in the United States. The Commission's denial of all three of McAdams' applications was premised on its finding that existing service was not materially inadequate and that the supporting shippers had not demonstrated adequately specific transportation needs. ¹ We agree and affirm the Commission's denial of the certificates.

At the outset, we emphasize that our review extends to three separate applications for operating authority to transport

Page 1114

candy (No. 76-1255), frozen foods (No. 76-1337), and hardware supplies (No. 76-1432), and three distinct ICC proceedings which resulted in the denial of each of the requested applications. Although the three cases have been consolidated, the administrative record in each case has received full and independent review.

I.

A threshold issue for consideration is whether McAdams' petition for review of the "candy" proceedings (No. 76-1255) was filed within the 60-day limitation period. The Commission has filed a motion to dismiss alleging that this particular petition is barred by its late filing.

McAdams filed its application to transport candy and confectionary pursuant to 49 U.S.C. § 307, but the application was denied by the Commission's review board in an order, dated August 12, 1975, and served on petitioner August 15, 1975. McAdams filed a petition for reconsideration of the denial on September 19, 1975. The petition for reconsideration also was denied by the Commission, acting as an appellate division, by an order, dated December 22, 1975, and served on petitioner January 7, 1976. On January 15, 1976, McAdams filed a petition requesting three aspects of the case declared to be issues of general transportation importance (GTI). The Commission determined that no issue of general transportation importance was involved and denied the petition by an order dated January 29, 1976, and served on petitioner February 3, 1976.

McAdams filed its petition for review in this court on March 31, 1976. The Commission subsequently filed its motion to dismiss contending that the petition was barred by the 60-day limitation period prescribed by 28 U.S.C. § 2344 and that this court lacks jurisdiction.

Jurisdiction to review ICC orders must be invoked by a petition for review, and the petition must be filed in timely fashion. 28 U.S.C. § 2344 provides:

On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies.

The time limitations for seeking judicial review are jurisdictional. Fed.R.App.P. 26(b); Microwave Communications, Inc. v. FCC, 169 U.S.App.D.C. 154, 515 F.2d 385, 388-89 (1974).

The Commission contends that petitioner's application became administratively final when the petition for reconsideration was denied. The Commission views the petition for review as untimely because it was filed 84 days after the date of service of the order denying reconsideration. Petitioner claims, however, that the 60-day period was triggered by the denial of the GTI petition, rather than the denial of the petition for reconsideration. Because the petition for judicial review was filed 57 days after the denial of the GTI petition, petitioner asserts it was timely filed.

When the Commission denies a petition for reconsideration, its decision is administratively final. 49 C.F.R. § 1100.101(a)(2). Accordingly, petitioner could have filed a petition for judicial review of that order within 60 days of its service. Nevertheless, 49 C.F.R. § 1100.101(a)(4) allows a party, within 15 days of the entry of a final order, to file a petition requesting the Commission to find that the proceeding was...