Benmar Transport & Leasing Corp. v. I. C. C., No. 1142

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore MESKILL; PER CURIAM
Citation582 F.2d 246
PartiesBENMAR TRANSPORT & LEASING CORP., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, and Consolidated Truck Service, Inc., Intervenor-Respondent. ocket 78-4005.
Decision Date16 August 1978
Docket NumberD,No. 1142

Page 246

582 F.2d 246
BENMAR TRANSPORT & LEASING CORP., Petitioner,
v.
INTERSTATE COMMERCE COMMISSION and United States of America,
Respondents,
and
Consolidated Truck Service, Inc., Intervenor-Respondent.
No. 1142, Docket 78-4005.
United States Court of Appeals,
Second Circuit.
Argued July 17, 1978.
Decided Aug. 16, 1978.

Page 247

Eugene M. Malkin, New York City, for petitioner.

Carl E. Howe, Jr., Atty., I.C.C., Washington, D.C. (Mark L. Evans, Gen. Counsel, Henri F. Rush, Associate Gen. Counsel, I.C.C., Washington, D.C., John H. Shenefield, Asst. Atty. Gen., Robert L. Thompson, Atty., Dept. of Justice, Washington, D.C., of counsel), for respondents I.C.C. and U.S.A.

Charles W. Beinhauer, New York City (Beinhauer & Rouhana, New York City, of counsel), for intervenor-respondent Consolidated Truck Service, Inc.

Before MESKILL, Circuit Judge, and DUMBAULD * and PORT, ** District Judges.

PER CURIAM:

Benmar Transport & Leasing Corp. petitions this Court to set aside an order of the Interstate Commerce Commission authorizing Consolidated Truck Service, Inc., to begin contract carrier service in competition with Benmar. This Court has jurisdiction under 28 U.S.C. §§ 2321 and 2342 and venue under 28 U.S.C. § 2343.

Review Board No. 1 of the I.C.C. denied Consolidated Truck's application on May 12, 1977. Division 1 of the I.C.C. reversed that decision on October 5, 1977. Benmar filed and served its petition for review by this Court on January 13, 1978. On its own motion, Division 1 reopened the proceedings in a decision dated January 25, 1978, and served on January 27. The express purpose of this reopening was to consider the issue of Consolidated's dual operations (common carrier and contract carrier) under § 210 of the Interstate Commerce Act, 49 U.S.C. § 310. As a result of this reopening and consideration, the Commission approved dual operations for Consolidated, as it was required to do in order for the grant of contract carrier authority to Consolidated to become effective. This happened prior to the time the agency filed the record with this Court.

Section 2349 of Title 28, the statute governing petitions to review federal agency orders, provides that "(t)he court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review." 28 U.S.C. § 2349. The United States Court

Page 248

of Appeals for the District of Columbia Circuit has determined that "(o)nce a petition to review has been filed in court, the...

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3 practice notes
  • U.S. v. West, No. 806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 7, 1981
    ...defense which tended to negate the government's charge that he "knowingly" submitted false documents. United States v. Carr, supra, 582 F.2d at 246; see United States v. Cleary, 565 F.2d 43, 46 (2 Cir. 1977), cert. denied, 435 U.S. 915 (1978). This is so because if appellant reasonably beli......
  • United States v. Benmar Transport and Leasing Corp, No. 78-1602
    • United States
    • United States Supreme Court
    • October 15, 1979
    ...of the Interstate Commerce Act, 49 U.S.C. § 310 [now 49 U.S.C. § 10930(a) (1976 ed., Supp. II)]." Benmar Transport & Leasing Corp. v. ICC, 582 F.2d 246, 248 (1978). The case was arqued in the Court of Appeals on July 17, 1978, and decided August 16, 1978. In reaching its decision, Page 5 th......
  • Fidenas AG v. Compagnie Internationale Pour L'Informatique CII Honeywell Bull. S. A., Nos. 784
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 6, 1979
    ...(2d Cir. 1978); Ryan v. United States Lines Co., 303 F.2d 430, 433-34 (2d Cir. 1962). Cf. Benmar Transport & Leasing Corp. v. I. C. C., 582 F.2d 246 (2d Cir. 2 Because the district court disposed of this case on the basis of pleadings and affidavits, our description of the facts is necessar......
3 cases
  • U.S. v. West, No. 806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 7, 1981
    ...defense which tended to negate the government's charge that he "knowingly" submitted false documents. United States v. Carr, supra, 582 F.2d at 246; see United States v. Cleary, 565 F.2d 43, 46 (2 Cir. 1977), cert. denied, 435 U.S. 915 (1978). This is so because if appellant reasonably beli......
  • United States v. Benmar Transport and Leasing Corp, No. 78-1602
    • United States
    • United States Supreme Court
    • October 15, 1979
    ...of the Interstate Commerce Act, 49 U.S.C. § 310 [now 49 U.S.C. § 10930(a) (1976 ed., Supp. II)]." Benmar Transport & Leasing Corp. v. ICC, 582 F.2d 246, 248 (1978). The case was arqued in the Court of Appeals on July 17, 1978, and decided August 16, 1978. In reaching its decision, Page 5 th......
  • Fidenas AG v. Compagnie Internationale Pour L'Informatique CII Honeywell Bull. S. A., Nos. 784
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 6, 1979
    ...(2d Cir. 1978); Ryan v. United States Lines Co., 303 F.2d 430, 433-34 (2d Cir. 1962). Cf. Benmar Transport & Leasing Corp. v. I. C. C., 582 F.2d 246 (2d Cir. 2 Because the district court disposed of this case on the basis of pleadings and affidavits, our description of the facts is necessar......

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