Chem-Haulers, Inc. v. U.S.
| Decision Date | 04 August 1976 |
| Docket Number | CHEM-HAULER,INC,No. 75-2021,75-2021 |
| Citation | 536 F.2d 610 |
| Parties | , Petitioner, v. The UNITED STATES of America and the Interstate Commerce Commission, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Walter Harwood, Nashville, Tenn., Maxwell A. Howell, Washington, D. C., for petitioner.
Thomas E. Kauper, Asst. Atty. Gen., John H. D. Wigger, Peter M. Shannon, Jr., Attys., Dept. of Justice, Washington, D. C., for the U. S.
Fritz R. Kahn, Kenneth G. Caplan, Hugh W. Cuthbertson, I. C. C., Washington, D. C., for I. C. C.
E. Stephen Heisley, Karl W. Sonneman, Washington, D. C., David A. Lang, New Orleans, La., for intervenor Colonial Freight Lines.
Phineas Stevens, Rhesa H. Barksdale, Jackson, Miss., Kim D. Mann, Washington, D. C., for intervenor Deaton, Inc.
Petition for Review of an Order of The Interstate Commerce Commission. (Alabama Case)
Before GOLDBERG, DYER and SIMPSON, Circuit Judges.
Petitioner Chem-Haulers, Inc. brings this action to review, enjoin, annul, and suspend an order of the Interstate Commerce Commission (the Commission, I.C.C.) granting Colonial Fast Freight Lines, Inc. (Colonial) a certificate of public convenience and necessity to act as a common carrier of nonferrous scrap metal and certain other non-ferrous items between Attalla, Alabama and Steele, Alabama, to and from other points within the eastern half of the United States. The I.C.C. order collaterally interpreted the operating certificate of Chem-Haulers as not extending to carriage of the commodities in question. In addition to the questions raised on the merits of the case, an intervenor (Deaton, Inc.) has challenged our jurisdiction to entertain this petition, alleging that it was filed out of time. We conclude that we have jurisdiction of the appeal, consider it on the merits, and affirm.
In August, 1973 Colonial filed an application with the I.C.C. seeking authorization to operate as a common carrier over irregular routes transporting (1) aluminum and zinc articles and non-ferrous scrap between Attalla, Alabama and Steele, Alabama, on the one hand, and points throughout the eastern half of the United States on the other, and (2) non-ferrous scrap throughout the eastern half of the United States. The Commission assigned Colonial's application to its "modified procedure" docket, a method of handling cases upon written affidavits without oral hearing unless required for cross-examination. 1
Verified written statements were submitted by Colonial and the supporting shippers (Culp Iron and Metal, Inc., of Attalla, Alabama, and its affiliate, Culp Smelting and Refining Company, Inc., of Steele, Alabama) to the Commission. Twelve protestants, including Chem-Haulers, submitted verified statements in opposition to the application. Colonial submitted a written rebuttal. The I.C.C.'s Review Board Number One granted Colonial's application in part, finding by order served September 4, 1974, that Colonial had proved its case as to portions of part 1 of its application for the transportation of aluminum and zinc ingots, bars, and sows and nonferrous scrap metal, but not for aluminum and zinc articles. Review Board Number One found Colonial had not submitted adequate proof to support part 2 of the application, and denied that portion. Colonial and Chem-Haulers each filed a petition for reconsideration of the Review Board's order. In due course, by order served February 18, 1975, the Commission, Division One, acting as an appellate division, denied all petitions and affirmed the Review Board's order. The Commission proceedings are administratively final. Our jurisdiction is invoked by Chem-Haulers pursuant to provisions of the Administrative Order Review Act, Title 28, U.S.C., Sections 2341-2351. 2
The initial problem we must consider is one of jurisdiction, raised by an intervenor, Deaton, Inc. Pursuant to Public Law No. 93-584, enacted January 2, 1975, 88 Stat. 1917, certain orders of the Commission were made reviewable under the Administrative Orders Review Act, Title 28, U.S.C., Section 2341 et seq. (the Hobbs Act). The Hobbs Act requires that, for jurisdiction to vest within a competent court, the petition seeking review must be filed with the court "within 60 days after its (the final order's) entry . . ." 3
In this case, Appellate Division One met in regular session February 6, 1975, and decided to affirm the order of the Review Board. This determination is recorded within the official minutes of the Commission. The Commission's decision was not served upon Chem-Haulers, nor the public generally, until February 18, 1975, at which time a formal final order was released. 4 Chem-Haulers filed notice of appeal April 18, 1975 59 days after service of the order, but 71 days after the actual Commission decision date. The time provisions of the Hobbs Act are jurisdictional, 5 and may not be altered or enlarged by this court. 6 We must determine therefore whether the date of "entry" as specified by the Hobbs Act is the date of decision, in which case we are without jurisdiction to consider the merits of the petition, or the date of service, in which case our jurisdiction is properly invoked. The legislative history of Pub.L. No. 93-584 is ambiguous. Although passages within Senate and House reports stated that a petition for review must be filed within 60 days of the date of service of the order, S.Rep. No. 93-500, 93d Cong. 1st Sess. 4, (1973); H.R.Rep. No. 93-1569, 93d Cong. 1st Sess. 9, (1974), U.S.Code Cong. & Admin.News, 1974, p. 7025, certain departmental communications attached to the House Report, and incorporated therein, arguably contradict the prior assertion. See Letter of W. Vincent Rakestraw, Assistant Attorney General, to Chairman of the House Committee on the Judiciary, H.R.Rep. No. 93-1569, supra, at 12; Statement of George M. Stafford, Chairman of the I.C.C., December 10, 1974, H.R.Rep. No. 93-1569, supra, at 15. Both the letter and the statement speak of review within 60 days of the entry of an appealable order, which leads back directly and without light to our problems: What does entry mean? Since we find no help in this morass, we reach our decision by examining the I.C.C.'s interpretation of the Hobbs Act, and by drawing imperfect analogies from judicial decisions in roughly parallel areas.
In I.C.C. practice an official minute record is kept by the Commission in compliance with the statutory mandate that "(e)very vote and official act of the Commission, or any division, individual Commissioner, or board shall be entered of record, and such record shall be made public upon the request of any party interested". Title 49, U.S.C., § 17(3). Deaton contends that this minute record is made contemporaneously with the session at which a decision is reached, and is the "entry of a final order" contemplated by Title 28, U.S.C., § 2344.
The I.C.C. as well as Deaton, Inc., and Chem-Haulers have submitted to us memoranda on the issue of jurisdiction. The Commission supports the petitioner on this point, taking the position that jurisdiction is present. The I.C.C. explanation of its procedure is that the minute record of the Commission's actions is not the "date of entry", but rather simply describes or tallies the particular action taken by the Commission setting forth the names and votes of the individual commissioners. The order is not made a part of the minute record, nor recorded at the session itself. The Minute Clerk seldom makes a "minute entry" on the day he notes the occurrences of a Commission session, but prepares the minutes days, often weeks, after the session. Until such time as the official minutes are prepared, the only record of the Commission's actions in any particular case is within the work notes of the Minute Clerk. The date on the minute entry, reflected on the face of the order, represents the date of the Commission's action, not the date the minutes were recorded or prepared by the Minute Clerk. At the close of the calendar year the minutes of the various Commission sessions are collected and bound within a record book; prior to this the minutes are not systematically bound in any manner.
At a time later than the Commission session in which a decision is reached an order is prepared for that action. The Commission's seal 7 and the Secretary's signature are affixed immediately prior to the service of the order. The I.C.C. position is that this signature and seal constitute the "entry" of the order, corresponding to the date of service of the order, 8 and fixes the date when the 60 day limitation period commences. We conclude that the I.C.C. correctly appraises the effect of its procedure.
It is established that interpretations of a statute by the agency charged with its administration should weigh heavily absent a compelling reason to the contrary. See, e. g., Red Lion Broadcasting Co. v. F.C.C., 1969, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371, 383; Ute Indian Tribe of Uintah & Ouray v. Probst, 10 Cir. 1970, 428 F.2d 491, cert. denied 400 U.S. 926, 91 S.Ct. 189, 27 L.Ed.2d 186. This is not the precise situation before us, but we are persuaded that I.C.C.'s interpretation of terms relating to its own procedures are similarly entitled to some deference, especially where there is no compelling precedent or reason tending to support an opposite view.
Under judicial, as opposed to administrative, rules, notably Rule 4(a) of the Federal Rules of Appellate Procedure and Rule 79(a) of the Federal Rules of Civil Procedure, the date of entry of a judicial order must be recorded in the official court docket; the order is final and appealable only when it is so entered. See, e. g., Erstling v. Southern Bell Telephone and Telegraph Co., 5 Cir. 1958, 255 F.2d 93. The I.C.C. has no rule requiring the entry of orders in an official docket, 9 and hence we cannot analogize the act determining the appealability of a judicial order to that...
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