Engel Van Lines, Inc. v. United States, Civ. A. No. 1327-73.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtGARTH, Circuit and COOLAHAN and LACEY
Citation374 F. Supp. 1217
PartiesENGEL VAN LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, United Van Lines, Inc., Intervening Defendant.
Decision Date21 February 1974
Docket NumberCiv. A. No. 1327-73.

374 F. Supp. 1217

ENGEL VAN LINES, INC., Plaintiff,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants,
United Van Lines, Inc., Intervening Defendant.

Civ. A. No. 1327-73.

United States District Court, D. New Jersey.

February 21, 1974.


374 F. Supp. 1218

William P. Ries, Maplewood, N. J., Brodsky, Linett & Altman, by Robert J. Gallagher, New York City, Todd, Dillon & Sullivan, by William P. Sullivan, Washington, D. C., for plaintiff.

Hugh W. Cuthbertson, Washington, D. C., for Interstate Commerce Comm.

William J. Hanlon, Newark, N. J., Rebman & Aschemeyer, by F. Neil Aschemeyer, St. Louis, Mo., for intervening defendant.

Before GARTH, Circuit Judge and COOLAHAN and LACEY, District Judges.

OPINION

COOLAHAN, District Judge:

The instant case comes before this Court pursuant to 28 U.S.C. § 23251 requiring a District Court of three judges to be convened in suits attacking orders of the Interstate Commerce Commission. Plaintiff, Engel Van Lines, Inc. (Engel), is a corporation organized in New Jersey and has its principal office in Elizabeth, New Jersey. This District is thus a proper venue. 28 U.S.C. § 1398.2

Engel is a motor common carrier, transporting household goods in interstate and foreign commerce, and as such is subject to the jurisdiction of defendant Interstate Commerce Commission (Commission). 49 U.S.C. § 1 et seq. On August 24, 1970 Engel applied to the Commission for a certificate of "public convenience and necessity" to operate without gateway requirements3 in eight States in which Engel has restricted operating rights. Engel further applied for unlimited operating right in five States in which it had not operated previously. Engel's desire is to have its vans traverse the States immediately west of the Mississippi River and travel into the southwestern States without having to travel through selective cities —thereby avoiding the greater distances and costs attendant to the "gateway" requirements. The petition before the Commission was opposed by certain motor common carriers of household goods and was supported by several of Engel's potential corporate customers as well as by the Department of Defense.

After six days of hearings and the filing of briefs by the parties and others having interest in the application, the Hearing Examiner filed his report and recommended order denying Engel's application. Engel thereupon filed exceptions to the report and recommended order, but the conclusions of the Hearing Examiner were affirmed and adopted by Division 1 of the Commission. The full Commission later denied a petition filed by Engel for a Finding of General Transportation Importance, thereby affirming the rejection of Engel's entire application.

The requirement that a motor common carrier obtain a certificate of "public convenience and necessity" from the Commission prior to engaging in interstate commerce is created by section 306 of the Interstate Commerce Act, 49 U.S. C. § 306(a).4 The Act, 49 U.S.C. §

374 F. Supp. 1219
307(a), sets out the criteria to be used by the Commission in issuing certificates of public convenience and necessity
". . . a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied."

Engel rests primarily on Fifth Amendment due process grounds. Engel avers that the Commission, in reviewing its application was required to follow— and did not properly follow—the doctrine of Fernstrom Storage & Van Co., 107 M.C.C. 556 (1968), 110 M.C.C. 452 (1969), aff'd sub nom. Aero Mayflower Transit v. United States, CCH Fed. Carr. Cas. ¶ 82.308 (S.D.Ind.1971), appeal denied, 406 U.S. 904, 93 S.Ct. 216, 34 L.Ed.2d 166 (1972), which, Engel claims, set standards "less exacting" for household movers to obtain certificates of public convenience and necessity than for other motor common carriers.

The Fernstrom case, like the instant action, had two stages: a decision by Division 1 of the Commission, reported at 107 M.C. 556 (1968), and a decision of the entire Commission, reported at 110 M.C.C. 452 (1969). Unlike the instant action, however, the full Commission reversed the decision of Division 1, thereby granting the authority requested by the moving van operator. It is the contention of Engel that the Commission in Fernstrom created a new doctrine for grants of certificates of public convenience and necessity to household movers wherein "the Commission granted the application and did not consider the ability of existing carriers to provide the service" (Engel brief at p. 12). Engel apparently bases its interpretation on the fact that the Commission overturned Division 1's ruling in Fernstrom without specifically disavowing Division 1's decision "that there was no dearth of available existing service."

The decision by Division 1 in Fernstrom, however, indicates that there was a substantial amount of evidence presented for the proposition that existing services were inadequate. See the summary of this evidence at 107 M.C.C. 561. The Commission in Fernstrom merely exercised its prerogative to accord greater weight to this evidence than did Division 1. That the Commission based its decision substantially on a finding of inadequacy of existing service may be seen in its holding that:

". . . the salient deficiency which emerges from all the testimony is the seeming inability of existing carriers to provide timely service, or, in many cases, to even make timely commitments to perform a service which the public is entitled to and for which the demand is ever increasing, particularly with respect to prompt pickup and delivery of household goods. It is our conclusion, therefore, that the existing household goods carriers are not able to provide the service which we deem to be reasonably adequate in many instances, particularly during peak periods of the moving season . . .
We also cannot overlook the dramatic population growth within the last two decades and the fact that the population is more mobile . . ." 110 M.C.C. at 455

It can be seen from this language that while the full Commission did not depart from Division 1's evaluation of the quality of existing service, there was a difference

374 F. Supp. 1220
in view as to how such service was meeting existing needs

Engel lastly contends that it has been denied due process in that the Commission did not follow Fernstrom but instead relied on the case of King Van Lines, Ext. 48 States, 114 MC.C. 866 (1972), decided after all evidence had been presented in the instant matter but before the Hearing Examiner had...

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4 practice notes
  • Eastern Oil Transport, Inc. v. United States, No. 74-5-CIV-7.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • April 30, 1976
    ...and necessity. V. Van Dyke Trucking, Inc. v. United States, 291 F.Supp. 97 (W.D.Wash.1968); Engel Van Lines, Inc. v. United States, 374 F.Supp. 1217 (D.C.N.J.1974). Plaintiff's supporting shipper, American Oil Company, complained of "deplorable" services, late shipments, and docum......
  • Chem-Haulers, Inc. v. I.C.C., CHEM-HAULER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 16, 1977
    ...sub nom. Youngblood Truck Lines Inc. v. United States, 221 F.Supp. 809 (W.D.N.C.1963). See also Engel Van Lines, Inc. v. United States, 374 F.Supp. 1217, 1222 29 Bowman Transp., Inc., Extension Substitution of Gateways, supra note 27, 100 M.C.C. at 326. Cf. Youngblood Truck Lines, Inc. v. U......
  • Hilt Truck Line, Inc. v. U.S., No. 75-1269
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 31, 1976
    ...Co. v. Interstate Commerce Commission, 377 F.Supp. 1224, 1228-29 (E.D.N.Y.1974); Engel Van Lines, Inc. v. United Page 1202 States, 374 F.Supp. 1217, 1221-22 (D.N.J.1974). The burden of proof on these standards of public convenience and necessity is placed on the motor carrier seeking operat......
  • Cartwright Van Lines, Inc. v. United States, No. 72 CV 122 W-4.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 4, 1975
    ...by what it said in Engel Bros., Inc. — Extension —Household Goods 40 States, aff'd sub nom., Engel Van Lines, Inc. v. United States, 374 F.Supp. 1217 (D.N.J. 1974).8 In Engel the contention was that the Commission had established new and different criteria in Fernstrom and King for the gran......
4 cases
  • Eastern Oil Transport, Inc. v. United States, No. 74-5-CIV-7.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • April 30, 1976
    ...and necessity. V. Van Dyke Trucking, Inc. v. United States, 291 F.Supp. 97 (W.D.Wash.1968); Engel Van Lines, Inc. v. United States, 374 F.Supp. 1217 (D.C.N.J.1974). Plaintiff's supporting shipper, American Oil Company, complained of "deplorable" services, late shipments, and docum......
  • Chem-Haulers, Inc. v. I.C.C., CHEM-HAULER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 16, 1977
    ...sub nom. Youngblood Truck Lines Inc. v. United States, 221 F.Supp. 809 (W.D.N.C.1963). See also Engel Van Lines, Inc. v. United States, 374 F.Supp. 1217, 1222 29 Bowman Transp., Inc., Extension Substitution of Gateways, supra note 27, 100 M.C.C. at 326. Cf. Youngblood Truck Lines, Inc. v. U......
  • Hilt Truck Line, Inc. v. U.S., No. 75-1269
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 31, 1976
    ...Co. v. Interstate Commerce Commission, 377 F.Supp. 1224, 1228-29 (E.D.N.Y.1974); Engel Van Lines, Inc. v. United Page 1202 States, 374 F.Supp. 1217, 1221-22 (D.N.J.1974). The burden of proof on these standards of public convenience and necessity is placed on the motor carrier seeking operat......
  • Cartwright Van Lines, Inc. v. United States, No. 72 CV 122 W-4.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 4, 1975
    ...by what it said in Engel Bros., Inc. — Extension —Household Goods 40 States, aff'd sub nom., Engel Van Lines, Inc. v. United States, 374 F.Supp. 1217 (D.N.J. 1974).8 In Engel the contention was that the Commission had established new and different criteria in Fernstrom and King for the gran......

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