Funbus Systems, Inc. v. State of Cal. Public Utilities Com'n.
| Decision Date | 30 September 1986 |
| Docket Number | 84-6171,85-7104 and 85-7105,Nos. 84-6170,s. 84-6170 |
| Citation | 801 F.2d 1120 |
| Parties | FUNBUS SYSTEMS, INC., Plaintiff-Appellant, v. STATE OF CALIFORNIA PUBLIC UTILITIES COMMISSION, Defendant-Appellee, Airport Service, Inc., Real Party In Interest. Interstate Commerce Commission, Applicant for Intervention-Appellant. FUNBUS SYSTEMS, INC., Plaintiff-Appellant, v. STATE OF CALIFORNIA PUBLIC UTILITIES COMMISSION, Defendant-Appellee, Airport Service, Inc., Real Party In Interest. Interstate Commerce Commission, Applicant for Intervention-Appellant. AIRPORT SERVICE, INCORPORATED, Petitioner, State of California and Public Utilities Commission of the State of California, Intervenors-Petitioners, v. INTERSTATE COMMERCE COMMISSION, Respondent, Funbus Systems, Inc., Real Party-Intervenor. AIRPORT SERVICE, INCORPORATED, Petitioner, State of California and Public Utilities Commission of the State of California, Intervenors-Petitioners, v. INTERSTATE COMMERCE COMMISSION, Respondent, Lounge Car Tours Charter Company, Inc., Real Party-Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Menke, Fahrney & Carroll, Dennis V. Menke, Orange, Cal., for Funbus system.
Kenneth O. Eikenberry, Atty. Gen., Robert Daniel Cedarbaum, Asst. Atty. Gen., Olympia, Wash., amicus curiae.
Janice E. Kerr, J. Calvin Simpson, Gretchen Dumas, Harvey Y. Morris, San Francisco, Cal., for Cal. Public Utilities Com'n.
Robert S. Burk, Gen. Counsel, Henri F. Rush, Dep. Gen. Counsel, H. Glenn Scammel, Atty., I.C.C., Washington, D.C., for I.C.C.
J. Terence Lyons, Lyons & Lyons, Los Angeles, Cal., for Real Party in Interest.
John C. Russell, Russell & Hancock, Los Angeles, Cal., for Real Party-Intervenor.
Masha Rozman, Asst. Atty. Gen., Trenton, N.J., for State of New Jersey & New Jersey Dept. of Transp.
Allan Kohler, Atty., Harrisburgh, Pa., for the Public Utility Com'n of the Commonwealth of Pennsylvania.
Paul Rodgers, Gen. Counsel, Charles D. Gray, Asst. Gen. Counsel, Genevieve Morelli, Dep. Asst. Gen. Counsel, National Ass'n of Regulatory Utility Commissioners, Washington, D.C., for The National Asso. of Regulatory Utility Comm.
Appeal from the United States District Court for the Central District of California; Nos. 84-6170, 84-6171.
Petition to Review a Decision of the Interstate Commerce Commission; Nos. 85-7104, 85-7105.
Before KENNEDY, SKOPIL and ALARCON, Circuit Judges.
These consolidated cases present a common novel issue: Does section 6 of the Bus Regulatory Reform Act, 49 U.S.C. Sec. 10922 (partial rev. 1985) (hereinafter Bus Act) authorize the Interstate Commerce Commission (hereinafter ICC) to issue certificates permitting motor carriers to conduct intrastate services which operate independently of their interstate operations?
In appeal nos. 85-7104 and 85-7105, petitioner Airport Service, Inc. (hereinafter ASI) seeks review of two final orders of the ICC: the first (no. 85-7104) on Funbus Systems, Inc.'s (hereinafter Funbus) and the California Public Utilities Commission's (hereinafter CPUC) petitions for a declaratory order regarding the propriety of Funbus' intrastate airporter operations under a previously issued ICC certificate (in which proceedings ASI was granted leave to intervene); and the second (no. 85-7105) on the ICC's denial of ASI's protest against Lounge Car Tours Charter Co., Inc.'s (hereinafter Lounge Car) application for operating authority to conduct intrastate operations from Los Angeles International Airport (hereinafter LAX) to Anaheim. The State of California and the CPUC join as intervenors in ASI's petitions for review.
Amicus briefs were filed in nos. 85-7104 and 85-7105 by (1) the State of Washington and the Washington Utilities and Transportation Commission (hereinafter Washington), and (2) the State of New Jersey and the New Jersey Department of Transportation, the Public Utility Commission of the Commonwealth of Pennsylvania and the National Association of Regulatory Utility Commissioners (hereinafter NARUC) (hereinafter collectively referred to as joint amici). The United States filed a position statement.
In appeal nos. 84-6170 and 84-6171, Funbus and the ICC appeal from the district court's dismissal of Funbus' complaint to enjoin the CPUC from interfering with Funbus' intrastate bus operations conducted under the authority of a certificate of public convenience and necessity issued by the ICC, and to grant declaratory relief. ASI opposes the appeal as the real party in interest. Funbus and the ICC also appeal from the district court's ruling that the ICC's motion to intervene was moot.
We conclude that the Bus Act requires a showing of a connection between proposed intrastate services and pre-existing or simultaneously approved interstate services which are or will be in actual operation as a prerequisite to a grant of operating authority by the ICC for intrastate services. Therefore, we reverse the ICC's determinations in the matters of the certificates issued to Funbus and Lounge Car. In light of our decision, we remand the cases for further factual findings. Because appellants in the related district court action have already obtained the relief sought in that case and because our resolution of the statutory interpretation issue renders repetition unlikely, we dismiss the appeals from the district court action as moot.
For the past 25 years, ASI has operated an intrastate airport shuttle service from LAX to various points in Orange County, California, pursuant to a certificate issued by the CPUC. In March of 1984, Funbus began operating a bus service between LAX and two Orange County cities: Anaheim, California, and Buena Park, California. Funbus also offers interstate service from Southern California to Las Vegas, Nevada. Funbus' operations are conducted pursuant to a certificate of operating authority issued by the ICC; Funbus did not apply for a certificate from the CPUC.
On April 17, 1984, ASI filed an action with the CPUC for an immediate cease and desist order preventing Funbus from continuing its intrastate services because it had failed to comply with CPUC certification procedures. (Airport Services, Inc. v Funbus Systems, Inc., CPUC No. 84-04-068). On April 18, 1984, the CPUC issued an ex parte interim cease and desist order and calendared the matter for a full hearing for April 30, 1984. The hearing before the CPUC did not take place on April 30 because Funbus attempted to remove the case to the district court. After allowing the ICC to intervene in the proceedings, the district court remanded the action to the CPUC.
The CPUC hearings on ASI's complaint for a cease and desist order were held on June 13 and 14, 1984. On June 20, 1984, without conceding that it lacked jurisdiction, the CPUC issued an interim opinion directing its General Counsel to seek an opinion from the ICC concerning the extent of the operations authorized by Funbus' certificate of public convenience and necessity, and suspending the cease and desist order. The CPUC's opinion stated that a decision on the merits would be rendered after receipt of the ICC's opinion. Funbus has continued to operate its intrastate services throughout these proceedings.
84-6171)
On April 24, 1984, Funbus filed an action for declaratory and injunctive relief in the district court, and an ex parte request for a temporary restraining order (hereinafter TRO) enjoining the CPUC proceedings. The district court denied the request for a TRO and scheduled a hearing on the motion for a preliminary injunction. On May 16, 1984, ASI moved to dismiss Funbus' complaint in the district court, and on May 17, 1984, the ICC moved to intervene in the district court action. The district court issued a decision on June 19, 1984, dismissing Funbus' complaint and ruling that in light of the dismissal, the ICC's motion to intervene was moot. Funbus and the ICC appeal from the district court's rulings in case nos. 84-6170 and 84-6171, respectively. By order dated September 24, 1984, this court denied the ICC's motion to intervene in Funbus' appeal.
On May 8, 1984, Funbus filed a complaint with the ICC seeking vacation of the CPUC's cease and desist order and dismissal of ASI's complaint against Funbus, then pending before the CPUC. On July 6th, the CPUC's General Counsel requested an opinion from the ICC concerning the scope of the intrastate operating authority granted to Funbus under its ICC certificate. The ICC consolidated Funbus' complaint with the CPUC's request for an opinion and issued a declaratory ruling on December 28, 1984. Funbus Systems, Inc., 133 M.C.C. 406 (1984). The ICC determined that the Bus Act preempted state jurisdiction to certify intrastate transportation conducted on interstate routes, and found that the ICC had exclusive jurisdiction to determine whether Funbus, an ICC-certified carrier, was operating within the scope of its certificate. Id. at 414-15. The ICC determined that the Bus Act does not require the actual conduct of interstate operations over a route in order to support an application for intrastate authority over that route, and stated that its rules therefore do not require a carrier seeking intrastate operating authority to certify the extent to which intrastate operations are or will be conducted over an interstate route. Id. at 423-24. The ICC summarized:
Thus, while intrastate authority may be granted only over an underlying interstate route, an applicant to obtain it need show only that it holds authority to provide interstate transportation over the underlying route, and not that it performs such services.... The intrastate rights are not authorized incidental to, or supplementary of, interstate regular-route operations, so there need not be a "mutuality" between the...
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