Florida-Texas Freight, Inc. v. United States, 72-960-Civ-WM.
| Decision Date | 13 May 1974 |
| Docket Number | No. 72-960-Civ-WM.,72-960-Civ-WM. |
| Citation | 373 F. Supp. 479 |
| Parties | FLORIDA-TEXAS FREIGHT, INC., and Universal Carloading & Distributing Co., Inc., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Norman Charles Brinke, Intervening Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Bernard C. Pestcoe, Pozen, Pestcoe, Gold & Gold, Miami, Fla., L. Agnew Myers, Jr., Washington, D. C., Clarence William Vandergrift, U. S. Freight Co., New York City, for plaintiffs.
Kelly, Black, Black & Kenny, Miami, Fla., J. Raymond Clark, Ephraim & Clark, Washington, D. C., for intervening defendant.
Thomas E. Kauper, Asst. Atty. Gen., Carl D. Lawson, John H. D. Wigger, Attys., Dept. of Justice, Washington, D. C., Fritz R. Kahn, Gen. Counsel, Richard H. Streeter, Atty., Interstate Commerce Commission, Washington, D. C., Robert W. Rust, U. S. Atty., Miami, Fla., for defendants.
Before DYER, Circuit Judge, and MEHRTENS and ROETTGER, District Judges.
Judgment Affirmed May 13, 1974. See 94 S.Ct. 2377.
This is an action to enjoin, set aside and annul reports and orders of the Interstate Commerce Commission (hereinafter Commission or I.C.C.) entered in Docket #FF-311 authorizing the issuance of a permit as a freight forwarder pursuant to Part IV of the Act, 49 U.S. C. § 1010 to Norman Charles Brinke, d/b/a N. C. Brinke, of Hialeah, Florida. Pursuant to the I.C.C.'s permit, N. C. Brinke is authorized to operate as a freight forwarder of general commodities between points in Dade County, Florida on the one hand, and, on the other, points in 14 states. Brinke's operations as a freight forwarder are restricted to the use of the trailer-on-flatcar (TOFC) services of common carriers by railroad. Plaintiffs, potential competitors of applicant Brinke, oppose the permit authorized by the I.C.C., primarily alleging that the Commission erred in finding Brinke ready, willing and able properly to perform such service; and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations promulgated thereunder.
Jurisdiction and venue are invoked pursuant to Title 28 U.S.C. §§ 1336, 1398. A three-judge court has been convened pursuant to 28 U.S.C. § 2322.
N. C. Brinke is no stranger to I.C.C. hearings and the scope of judicial review over reports and orders issued by that governmental agency. Approximately ten years ago Brinke began his struggle for an appropriate permit authorizing the operations of his business in interstate commerce.
On December 6, 1963 Brinke filed an application pursuant to Section 410 of the Interstate Commerce Act, 49 U.S.C. § 1010, seeking a permit authorizing operations in interstate commerce, as a freight forwarder, of general commodities, between points in Dade County, Florida and points in 14 other states, through use of the facilities of common carriers by railroad.
Shortly thereafter on January 24, 1964, Brinke filed an application under Section 211 of the Act in which he sought a license authorizing operations as a freight broker. While § 211 is limited to the brokerage of transportation via motor vehicle, in interstate or foreign commerce, Brinke's application clearly set forth his intention to consolidate shipments for movement in rail TOFC service and to use local drayment for movement to and from piggy-back ramps. These proposed operations are normally performed by freight forwarders rather than brokers. The discrepancy, however, between the proposed . . . . between the proposed rail TOFC service set forth by Brinke and the limitation of § 211 to brokerage of transportation via motor vehicle was not discovered by the joint board to which the matter had been referred, and they recommended that the broker's license be issued.
The board's recommendation was based on the following finding:
On September 8, 1964, in # MC-12892, Brinke was issued a license under Part II of the Act to engage in operations as a broker in accordance with the activities proposed in his application. He has continued to perform these activities since that time.
The freight forwarder application, which was opposed by several competing forwarders, was referred to an examiner for oral hearing to be held in Miami, Florida, beginning on March 9, 1964. Following the hearing, in which seven shippers testified in support of Brinke, the examiner recommended the application be granted. This recommendation was adopted by the Commission, Operating Rights Board No. 1, which in its report and order (323 I.C.C. 376) found Brinke's proposed freight forwarder operations to be consistent with the public interest and the National Transportation Policy and, therefore, approved issuance of a freight forwarder permit upon compliance by Brinke with certain conditions. On reconsideration, the Commission, by Appellate Division 1, affirmed the prior report (326 I.C.C. 322).
Thereafter an action was brought in the federal district court of Delaware asking the court to set aside and enjoin the Commission's orders. In its opinion entitled Acme Fast Freight, Inc. v. United States, 281 F.Supp. 314 (D.Del.1968), the three-judge court sustained the Commission's determination that a grant of authority to Brinke would be consistent with the public interest and the National Transportation Policy. The court, however, interprets . . . . interpreted the Commission's grant as containing a trailer-load lot restriction.
Further proceedings (not relevant here) were held with the result being that another hearing was scheduled on Brinke's ability to properly perform the proposed service and that the service was consistent with the National Transportation Policy. At this proceeding Brinke adduced evidence of his existing broker operation, the proposed freight forwarder operation and the evidence of 58 public witnesses, including representatives of the Dade County government, two rail carriers, and numerous Dade County shippers and receivers. Once again the examiner concluded that the updated record "demonstrates quite clearly that the service proposed is needed, and that Brinke has demonstrated the capacity, ability and willingness properly to perform the service." (Examiner's Report, p. 17) The Examiner further concluded that:
Id at 18.
He, therefore, recommended that Brinke be granted a freight forwarder permit.
By its decision and order served March 20, 1972, the examiner's recommendations were adopted by the Commission, Division 1. As a condition to the grant, however, Brinke was required to tender in writing a request for coincidental cancellation of the broker license issued to him in No. MC-12892, Norman Charles Brinke Broker Application.
The plaintiffs then filed a "Petition Requesting That The Commission Find That This Proceeding Involves An Issue of General Transportation Importance" in which it was argued that Brinke's prior operations under his broker license rendered him unfit to receive a freight forwarder permit. By its order served April 14, 1972, the Commission denied plaintiffs' petition. Plaintiffs, having exhausted their administrative remedies, then filed the instant suit.
Section 410 of the Interstate Commerce Act, 49 U.S.C. § 1010, contains the provisions pursuant to which the Commission passes upon applications for freight forwarder authority. § 410(c) provides in pertinent part:
"The Commission shall issue a permit to any qualified applicant therefor, authorizing the whole or any part of the service covered by the application, if the Commission finds that the applicant is ready, able, and willing properly to perform the service proposed, and (2) that the proposed service, to the extent authorized by the permit, is or will be consistent with the public interest and the national transportation policy . . ." 49 U.S.C. § 1010(c).
The scope of this Court's authority on review of Commission orders is limited to the extent that such orders will not be set aside, modified or disturbed unless they are clearly erroneous, arbitrary or capricious. Allen v. United States, 187 F.Supp. 625 (S.D.Fla.1960); Dixie Ohio Express Inc. v. United States, 263 F.Supp. 993, 999 (N.D.Ohio 1966). While this Court is bound to acknowledge and give weight to the expertise of the Commission, Dixie, supra, Nashua Motor Express, Inc. v. United States et al., 230 F.Supp. 646 (D.N.H. 1964), judicial deference to their expertise is not in itself sufficient to sustain a Commission decision. Campbell 66 Express, Inc. v. United States, 258 F. Supp. 529, 533 (W.D.Mo.1966).
Essentially our task is to ascertain whether the plaintiffs have met their burden of establishing conclusively that the Commission has acted erroneously or arbitrarily and capriciously in granting Brinke's freight forwarder permit pursuant to 49 U.S.C. § 1010(c).
Reduced to its simplest terms, plaintiffs' first argument is that...
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