Brink's, Inc. v. U.S.

Decision Date12 December 1979
Docket NumberNo. 78-1876,78-1876
Citation613 F.2d 1079
PartiesBRINK'S, INC., Petitioner, v. UNITED STATES and Interstate Commerce Commission, Respondents, Wells Fargo Armored Service Corporation, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Chandler L. van Orman, Washington, D. C., with whom Wheeler & Wheeler, Washington, D. C., were on the brief, for petitioner.

Gerald B. Fleming, Atty., I.C.C., Washington, D. C., with whom Mark L. Evans, Gen. Counsel, Henri F. Rush, Associate Gen. Counsel, I.C.C., John H. Shenefield, Asst. Atty. Gen., John J. Powers, III, Asst. Chief Appellate Section, and Catherine G. O'Sullivan, Atty., Antitrust Div., Dept. of Justice, Washington, D. C., were on the brief, for respondents.

Harry J. Jordan, David E. Wells, and Macdonald & McInerney, Washington, D. C., were on the brief for intervenor, Wells Fargo Armored Service Corporation.

Before ROBINSON and MacKINNON, Circuit Judges, and DAVIS, * Judge, United States Court of Claims.

Opinion for the Court filed by Judge DAVIS.

DAVIS, Judge:

This case, like those decided today in International Detective Service, Inc., et al. v. Interstate Commerce Commission, --- U.S.App.D.C. ---, 613 F.2d 1067 (International Detective (Wells Fargo)), involves a challenge to an Interstate Commerce Commission order granting contract carrier authority to a company in the armored car market. As in International Detective (Wells Fargo), the Commission's order provides for new entry and competition in certain Federal Reserve Bank routes, routes previously dominated by one authorized carrier. However this order was a grant of temporary authority, under the terms of a different statutory provision, 1 which provides the sole basis of this petitioner's challenge. Because of the particular issues turning on a grant of temporary authority we consider this case separately. We conclude that the Commission did have discretion to approve a temporary grant in these circumstances, and we affirm the order.

I BACKGROUND

As pointed out in International Detective (Wells Fargo), supra, the armored car industry is a specialized field dominated by four large firms with the Federal Reserve Banks providing the largest single source of demand. In the fall of 1977 Wells Fargo Armored Service Corporation applied for temporary authority to carry coin, currency and other high-value commodities on routes for the Federal Reserve Bank of Richmond, Virginia. The proposed routes covered shipments between Richmond and points in Virginia, West Virginia and North Carolina. In its application Wells Fargo included the usual evidence of ability and fitness, particularly its experience as an intrastate carrier of such commodities. Although Wells Fargo was the low bidder on these routes it could not actually receive the Reserve Bank's new three-year contract (starting in January 1978) unless it had Commission authorization. Wells Fargo had filed for permanent authority as a contract carrier, but it anticipated some years delay in administrative processing of this permanent application due to the opposition of the existing carrier, petitioner Brink's Incorporated. Wells Fargo wanted temporary authority to qualify for the Reserve Bank contracts in the interim period.

The Richmond Federal Reserve Bank filed a statement supporting the Wells Fargo application for temporary authority. The Bank, like those in International Detective (Wells Fargo), supra, had the responsibility of providing transportation of coin and currency to various member and nonmember banks in the Southeast. Brink's was the only authorized carrier for the West Virginia and North Carolina routes, enjoying a monopoly of the Bank's business. In 1976 the Bank had requested competitive bids for armored car service on various routes. Wells Fargo was the lowest bidder on the West Virginia and North Carolina runs and another carrier, Federal Armored Express, captured other routes. Brink's did At first the Commission denied the application, and Wells Fargo sought review in this court, No. 78-1135. Prior to judicial consideration the Commission reopened the administrative proceeding, 4 and in an order of August 8, 1978, the full Commission, by a closely divided vote, approved the temporary authority grant. Tersely, the Commission found an "immediate and urgant (Sic ) need," based on the need to "give the supporting shipper an alternative choice in the competitive bidding for contracts . . . Applicant needs this grant of authority in order to tender a bid. If it is granted the authority, the applicant can compete for the shipper's business by offering better service." The new winner, Wells Fargo, moved to dismiss its pending lawsuit in this court without prejudice and the motion was granted. The new loser, Brink's, filed the instant petition for review. 5 Before oral argument the Commission, acting through Division 2, approved a permanent authority permit for Wells Fargo as a motor contract carrier, and on August 24, 1979 (after oral argument) Division 2 denied Brink's petition for administrative review and affirmed the earlier grant to Wells Fargo of permanent authority. These actions raise a shadow of mootness over the grant of temporary authority. Determining first that the subsequent administrative action does not render this case moot, we next examine the validity of considering a shipper's economic and competitive needs under the temporary authority statute.

                not submit the lowest bid for any territory.  The Bank would save some $900,000 over three years if Wells Fargo had the contracts on the West Virginia routes.  2  On the basis of this very substantial cost savings and secondary advantages in Wells Fargo's service, 3 the Bank supported the application
                
II MOOTNESS

Before oral argument counsel for the Commission suggested that the subsequent grant of permanent authority mooted this case. However, at argument counsel informed us that the permanent authority decision of Division 2 had been appealed administratively. It appeared that, until final agency action 6 had occurred, the grant of temporary authority was still outstanding; Commission counsel conceded that until the further administrative appeal was resolved this case would not be moot. But, as noted above, on August 24, 1979, the final step was taken and permanent authority was definitively granted by the Commission.

We conclude, nevertheless, that the grant of temporary authority is not moot and may still be reviewed by this court on its merits. We take this position because the award of temporary authority falls within the category of "short term orders, capable of repetition, yet evading review." Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed 310 (1911). See also Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Tennessee Gas Pipeline Co. v. Federal Power Comm'n, 197 U.S.App.D.C. 1 at 7, 606 F.2d 1373 at 1379 (1979); Nader v. Volpe, 154 U.S.App.D.C. 332, 333, 475 F.2d 916, 917 (D.C.Cir. 1973); Alton & So. Ry. Co. v. Int'l Ass'n of Mach. & A. W., 150 U.S.App.D.C. 36, 41-44, 463 F.2d 872, 877-880 (D.C.Cir. 1972); Jeannette Rankin Brigade v. Chief of Capitol Police, 137 U.S.App.D.C. 155, 157, 421 F.2d 1090, 1092 (D.C.Cir. 1969). The Commission has by no means withdrawn from the general view of its temporary authority which is embodied in the order now challenged, and there is therefore a high probability that it will continue in that view in the future, but that, as here, judicial scrutiny will not be completed due to the time the appellate process necessarily takes. In the circumstances, consideration of the merits of this case is appropriate at this time, rather than a dismissal for mootness which would leave both the Commission and the motor carriers subject to the distinct possibility that they would never learn from the courts the parameters of the agency's temporary authority in the not unusual situation presented in this case.

III TEMPORARY AUTHORITY BASED ON COMPETITIVE NEED

The only issue presented by petitioner Brink's is whether the Commission could properly consider, in awarding the temporary authority, the Richmond Bank's need for increased competition on the bidding for the West Virginia routes involved here. Petitioner's position is that such a competitive need has no place whatever in a grant of temporary authority, no matter what role it may play when a permanent award is being made. There are substantial arguments on both sides, and the margin is close, but we have concluded that in this instance the Commission did act within its authority.

We consider the problem in the light of the situation facing the Richmond Reserve Bank when it supported Wells Fargo's application for temporary authority. In view of the considerable difference between the bids of Wells Fargo and of petitioner Brink's for the West Virginia routes, the Bank would save some $900,000 over the normal 3-year period of those contracts if awarded for the full term to Wells Fargo. See Part I, Supra. In the hope that authority could be awarded Wells Fargo sooner than the end of the three-year span, the contract actually given to Brink's was for six months (with a 90-day cancellation clause). Full processing of applications for permanent authority can take upwards of two years. It is plain that, the sooner the Richmond Bank could use Wells Fargo, the sooner it would begin to save money. And the savings would not be minor or marginal, but a very substantial differential. Even a grant of temporary authority for the normal limit of 180 days (with the possibility of a special extension) would result in important savings.

Section 210a of the Motor Carrier Act (set out in note 1, Supra ) allows temporary authority grants for areas having "no motor carrier . . . capable of meeting the immediate needs of the place or area." 7 A long-standing judicial...

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    ...authority, we find that the instant appeal is justiciable, and quickly dispose of Blackjack's mootness claim. In Brink's, Inc. v. United States, 613 F.2d 1079 (D.C.Cir.1979), the court heard a petition to vacate temporary authority, even though the carrier had already received permanent aut......
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