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

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Writing for the CourtJERTBERG, Circuit , and BOLDT and GOODWIN
Citation298 F. Supp. 1006
PartiesBLACK 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.
Docket NumberCiv. A. No. 3828.
Decision Date26 March 1969

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.

298 F. Supp. 1007

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

298 F. Supp. 1008
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.

298 F. Supp. 1009

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...

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5 practice notes
  • Chicago and North Western Railway Co. v. United States, Civ. A. No. 68C 2094.
    • United States
    • U.S. District Court — Northern District of Illinois
    • March 31, 1970
    ...Cir. 1967) (Commission may not retroactively apply new policy after a three year lapse); Black Ball Freight Service v. United States, 298 F.Supp. 1006 (W.D. Wash.1969) (Commission may not reopen proceeding after Court has stayed Commission order). Aside from its all 311 F. Supp. 871 too eas......
  • American Farm Lines v. Black Ball Freight Service Interstate Commerce Commission v. Black Ball Freight Service, Nos. 369
    • United States
    • United States Supreme Court
    • April 20, 1970
    ...to support its conclusion,' but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F.Supp. 1006. Both AFL and ICC appealed to this Court and we noted probable jurisdiction.6 396 U.S. 884, 90 S.Ct. 173, 24 L.Ed.2d 159. Page 537 I The first a......
  • Superior Trucking Company v. United States, No. 12407.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 3, 1969
    ...Plaintiffs cite Acme Cartage Co. v. United States, 290 F.Supp. 453 (W.D. Wash., 1968), and Black Ball Freight Service v. United States, 298 F.Supp. 1006 (W.D.Wash., 1969), for the proposition that both urgent need and a lack of presently existing service to meet the need must be supported b......
  • MUNITIONS CARRIERS CONF., INC. v. American Farm Lines, No. 629-69 and 72-70.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 25, 1971
    ...the outcome of a case filed in the Washington district entitled Blackball Freight Service et al. v. United States et al., reported in 298 F.Supp. 1006. On December 19, 1968, the Interstate Commerce Commission, apparently in an attempt to correct procedural deficiencies alleged to have been ......
  • Request a trial to view additional results
5 cases
  • Chicago and North Western Railway Co. v. United States, Civ. A. No. 68C 2094.
    • United States
    • U.S. District Court — Northern District of Illinois
    • March 31, 1970
    ...Cir. 1967) (Commission may not retroactively apply new policy after a three year lapse); Black Ball Freight Service v. United States, 298 F.Supp. 1006 (W.D. Wash.1969) (Commission may not reopen proceeding after Court has stayed Commission order). Aside from its all 311 F. Supp. 871 too eas......
  • American Farm Lines v. Black Ball Freight Service Interstate Commerce Commission v. Black Ball Freight Service, Nos. 369
    • United States
    • United States Supreme Court
    • April 20, 1970
    ...to support its conclusion,' but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F.Supp. 1006. Both AFL and ICC appealed to this Court and we noted probable jurisdiction.6 396 U.S. 884, 90 S.Ct. 173, 24 L.Ed.2d 159. Page 537 I The first a......
  • Superior Trucking Company v. United States, No. 12407.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 3, 1969
    ...Plaintiffs cite Acme Cartage Co. v. United States, 290 F.Supp. 453 (W.D. Wash., 1968), and Black Ball Freight Service v. United States, 298 F.Supp. 1006 (W.D.Wash., 1969), for the proposition that both urgent need and a lack of presently existing service to meet the need must be supported b......
  • MUNITIONS CARRIERS CONF., INC. v. American Farm Lines, No. 629-69 and 72-70.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 25, 1971
    ...the outcome of a case filed in the Washington district entitled Blackball Freight Service et al. v. United States et al., reported in 298 F.Supp. 1006. On December 19, 1968, the Interstate Commerce Commission, apparently in an attempt to correct procedural deficiencies alleged to have been ......
  • Request a trial to view additional results

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