Black Ball Freight Service v. United States, Civ. A. No. 3828.

• Decision Date: 26 March 1969
• Docket Number: Civ. A. No. 3828.
• Citation: 298 F. Supp. 1006
• Court: U.S. District Court — Western District of Washington
• Parties: BLACK BALL FREIGHT SERVICE; Consolidated Freightways Corporation of Delaware; D-C International, Inc.; Garrett Freightlines, Inc.; Navajo Freightlines, Inc.; Pacific Intermountain Express Co.; Western Gillette, Inc.; Riss & Company, Inc.; IML Freight, Inc.; and American Trucking Associations, Inc., Plaintiffs, Yellow Freight Service et al., Intervening Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, American Farm Lines, Intervening Defendant.

298 F. Supp. 1006

BLACK BALL FREIGHT SERVICE; Consolidated Freightways Corporation of Delaware; D-C International, Inc.; Garrett Freightlines, Inc.; Navajo Freightlines, Inc.; Pacific Intermountain Express Co.; Western Gillette, Inc.; Riss & Company, Inc.; IML Freight, Inc.; and American Trucking Associations, Inc., Plaintiffs, Yellow Freight Service et al., Intervening Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, American Farm Lines, Intervening Defendant.

Civ. A. No. 3828.

United States District Court W. D. Washington, S. D.

March 26, 1969.

Eisenhower, Carlson, Newlands, Reha & Sinnitt, James F. Henriot, Tacoma, Wash., King, Miller, Anderson, Nash & Yerke, Clifford N. Carlsen, Jr., Portland, Or., William B. Adams, Portland, Or., for plaintiffs.

W. H. Ploeger and James E. Nelson, Seattle, Wash., Ed White, Chicago, Ill., for intervening plaintiffs.

John H. D. Wigger, Edwin M. Zimmerman, U. S. Dept. of Justice, Washington, D. C., Charles W. Billinghurst, Asst. U. S. Atty., Tacoma, Wash., Fritz R. Kahn, John E. Faulk, Arthur J. Cerra, Robert W. Ginnane, Interstate Commerce Commission, Washington, D. C., for defendants.

Gordon, Honeywell, Malanca, Peterson & Johnson, Tacoma, Wash., Hanson, Fisher, Tumilty, Peterson & Tompkins, Oklahoma City, Okl., for intervening defendant.

Before JERTBERG, Circuit Judge, and BOLDT and GOODWIN, District Judges.

OPINION

BOLDT, District Judge:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

American Farm Lines (AFL) made an application under the provisions of Section 210a(a) Interstate Commerce Act, 49 U.S.C.A. Section 310a(a)¹ and Ex Parte No. MC-67, Motor Carrier Temporary Authorities, 98 M.C.C. 483, 49 C. F.R. 1131, et seq., to the Interstate Commerce Commission (ICC) for a Temporary Authority to provide single-line motor carrier service. The application appeared in the Federal Register June 8, 1968. The thirty-five motor carrier plaintiffs in this action, twenty-eight intervening rail carrier plaintiffs and many other carriers, protested the application. The Temporary Authorities Board of the Commission (TAB) by order dated July 12, 1968, denied the application. AFL filed a petition for reconsideration, appealing the decision of TAB. Division 1 of ICC, acting as an Appellate Division, by order dated September 3, 1968, vacated the order of denial issued by TAB and granted the application.

Some of the plaintiffs and other carriers filed petitions for reconsideration, which were not authorized by the applicable rule, Ex Parte No. MC-67, Motor Carrier Temporary Authorities, 98 M.C.C. 483, at page 496 (49 C.F.R. 1131.6), since neither of the conditions authorizing such petitions was present:

"(a) Petitions for reconsideration. —Pursuant to and in accordance with the Commission's General and Special Rules of Practice, petitions for reconsideration of orders of (1) the Temporary Authorities Board, and (2) Division 1 initially granting or denying temporary authority in proceedings not subject to prior determination by the Temporary Authorities Board, may be filed by any interested person."

Plaintiffs' complaint was filed in this court on September 26, 1968, together with a motion for an order to stay the going into effect of the ICC order of September 3, 1968.

This motion was argued October 2, 1968 before Judge Boldt per Title 28, Section 2284(3) and (5). After considering oral and written evidence and the argument of counsel, the Court entered an order staying the going into effect of the ICC order of September 3, 1968, and declaring it to be otherwise inoperative pending determination in this Court of the issues presented in this proceeding, or until further order of this Court. At that hearing, counsel for ICC did not challenge the administrative finality of the ICC order of September 3, 1968. By its order of October 9, 1968, ICC recognized the stay order of this Court.²

On October 16, 1968, the Department of Defense filed with ICC a reply to the petitions for reconsideration, and on October 17, 1968, AFL filed a combined reply to the petitions for reconsideration and a petition to reopen. Many plaintiffs filed motions to strike these pleadings on the ground they were not authorized by ICC Rule 49 C.F.R. 1131.6, nor by any other rule.

On November 12, 1968, ICC filed in this court a "Motion to Stay Further Proceedings Herein," stating therein that on November 5, 1968, on its own motion, ICC had reopened the proceeding before it and requested a stay of further action in the case before this court. By their prompt opposition to this motion, plaintiffs contended that ICC was not authorized to reopen its proceeding because this court had taken jurisdiction of the matter. Also, plaintiffs asserted that even if the court had not taken jurisdiction, the ICC Rules precluded reopening of the proceeding. No action has ever been taken to note the ICC motion for hearing or to otherwise procure the stay sought by the motion.

The same contentions were presented to ICC in plaintiff's motion for vacation of the reopening order.

Since the ICC order of November 5, 1968 recited that a verified statement from the Department of Defense would be received, and no ruling having been made on their petitions to vacate the order of November 5, plaintiffs responded to the Caputo verified statement submitted by the Department of Defense. These responses asserted plaintiffs had satisfactorily performed all services previously requested of them and their willingness and ability to perform any service requested of them by any shipper, including the Department of Defense.

On December 19, 1968, ICC issued a new order in the same docket granting AFL the same temporary authority previously granted by the ICC order of September 3, 1968 as to which the stay order of this court was and still is in full effect.

On December 31, 1968, pursuant to Fed.Civ.R. 15(d), plaintiffs filed in this court a "Supplemental Complaint Setting Forth Transactions or Occurrences or Events Which Have Happened Since the Date the Original Complaint was Filed Herein" and a motion to stay the going into effect of the ICC order of December 19, 1968.

Following extended argument, on January 6, 1969 Judge Boldt entered an order restraining the going into effect of the ICC order of December 19, 1968 and ordering it to be inoperative until further order of this court. Full hearing on the merits was heard by the Three-Judge Court on January 24, 1969.

The issuance of the ICC order of September 3, 1968 was based on a supporting letter written by the Department of Defense, dated May 15, 1968. The ICC also had before it a letter dated April 30, 1968 written to the president of AFL wherein the Department of Defense stated it was not in a position to verify that there would be insufficient or inadequate service to meet Department requirements in the absence of the single-line service AFL seeks to provide.

"As authorized by the ICC Act, after extended consideration the ICC adopted Temporary Authority Rules, effective July 5, 1965, specifying procedures for the submission and determination of temporary authority applications under Section 210(a), ICC Act. Ex Parte No. MC-67, 49 C.F.R. 1131 * * * The rules specifically provide in mandatory terms that each filed temporary authority application must be accompanied by one or more supporting statements and each such statement must contain at least the information specified in eleven categories." Acme Cartage Co. et al v. United States et al, 290 F.Supp. 453 at page 454. Among those categories are:

"(8) Whether efforts have been made to obtain the service from existing motor, rail or water carriers, and the dates and results of such efforts.

"(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal."

The ICC Rules, 49 C.F.R. 1131 et seq., provide for the filing and processing of written temporary authority applications and establish standards and mandatory procedures applicable to all phases of the submission and determination of such applications. Except for supporting statements by the Department of Defense, the rules require "certified" evidentiary statements by the supporting shippers claiming to need the new service, and further require factual statements in a minimum of eleven specific categories. The rules require notice of the proceeding to be given by publication in the Federal Register and authorize protest of the application by "persons who can and will provide all or any part of the proposed service". Each protest must specify the service the protestant can and will offer and must be served upon the applicant. Submission of supplemental data after the applications are filed is not permitted. The ICC rules establish specific evidentiary standards for determination of each application for temporary authority and provide that grants "shall be only made" where the evidence "establishes" an immediate and urgent need in accordance with the prescribed standards.

Rule 49 C.F.R. 1131.4(b) (4) pertaining to single-line service provides:

"Generally, the desire of a shipper for single-line service in lieu of existing interchange or connecting-carrier service will not warrant a grant of temporary authority. A grant of temporary authority to effectuate single-line service will be authorized only when it is clearly established that the carriers providing multiple-line service are not capable of, or have failed in, meeting the reasonable immediate and urgent needs of shippers or receivers between the points or territories and in respect of the commodity or commodities involved."

Plaintiffs assert the initial supporting letter accompanying AFL's temporary application did not provide the information required by 49 C.F.R. 1131.2 (c), particularly (8) and (9) thereof, and that granting of the temporary authority in question without a showing of the required...