Benmar Transport & Leasing Corp. v. I. C. C., 1142
Decision Date | 16 August 1978 |
Docket Number | D,No. 1142,1142 |
Parties | BENMAR TRANSPORT & LEASING CORP., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, and Consolidated Truck Service, Inc., Intervenor-Respondent. ocket 78-4005. |
Court | U.S. Court of Appeals — Second Circuit |
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.
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 of Appeals for the District of Columbia Circuit has determined that Greater Boston Television Corp. v. F. C. C., 149 U.S.App.D.C. 322, 337, 463 F.2d 268, 283 (1971), Cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972). In an earlier case, that same Court determined that ...
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