Greenstein Trucking Company v. United States
| Decision Date | 05 June 1972 |
| Docket Number | Civ. A. No. 16028. |
| Citation | 343 F. Supp. 194 |
| Parties | GREENSTEIN TRUCKING COMPANY, a corporation v. UNITED STATES of America et al. |
| Court | U.S. District Court — Northern District of Georgia |
Martin Sack, Jr., Jacksonville, Fla., for plaintiff.
Postell & Hall, Atlanta, Ga., for Harper.
Richard Kenney, Miami, Fla., and Watkins & Daniell, Atlanta, Ga., for Alterman.
Walker B. Comegys, Acting Asst. Atty. Gen. and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., and John W. Stokes, U. S. Atty., Atlanta, Ga., for the United States.
Fritz R. Kahn, General Counsel and Geraldine R. Keyes, Atty., Interstate Commerce Commission, Washington, D. C., for ICC.
Before BELL, Circuit Judge, EDENFIELD and O'KELLEY, District Judges.
Plaintiff Greenstein Trucking Company seeks to enjoin the operation of a final order of the Interstate Commerce Commission. Both the parties and the ICC certificate involved in this litigation have previously been before this court. Refrigerated Transport Co. v. United States, 297 F.Supp 5 (N.D.Ga.1969).
On June 10, 1963, Greenstein filed an application with the Interstate Commerce Commission for a certificate of public convenience and necessity authorizing it to transport certain meats, refrigerated foods, and dairy products from St. Paul, Minnesota; Chicago, Illinois; and points in Wisconsin; to points in Florida, Georgia, Tennessee, South Carolina and Alabama. The application as filed by Greenstein proposed that three restrictions be annexed to the certificate, namely: (1) that shipments originating in St. Paul be limited to those which were subsequently to stop at one or more points in Wisconsin to complete loading; (2) that shipments from Chicago be limited to those which had originated at one or more points in Wisconsin and which stopped in Chicago only to complete loading; (3) that deliveries in Alabama, Tennessee, and South Carolina be limited to shipments which were to be partially unloaded there, with the remainder of the shipment having a final destination in Florida and/or Georgia. (These restrictions originally sought by Greenstein are hereinafter referred to as the "multiple pickup and delivery" restrictions.)
After numerous protests had been filed against the application, a hearing was held on December 19, 1963 before an Examiner for the Commission. On July 24, 1964, the Examiner recommended that the application be denied for reasons no longer relevant here. Greenstein excepted and obtained review. On December 28, 1964, Operating Rights Review Board No. 3 adopted the Examiner's statement of facts but reversed his recommendation and granted the application. In granting the application, however, the Review Board deleted the three "multiple pickup and delivery" restrictions contained in Greenstein's original application and substituted in lieu thereof a "mixed load" restriction, which authorized only shipments consisting of mixed loads of meat and dairy products. The "mixed load" restriction was substituted without further notice or a hearing being afforded other carriers.
Several competing carriers (hereinafter "protestants"), claiming to be adversely affected by the "mixed load" restriction, petitioned for reconsideration. The Commission denied reconsideration and on October 12, 1965, issued Greenstein a certificate of public convenience and necessity containing the substituted "mixed load" restriction.
In August, 1967, protestants petitioned the Commission to reopen the matter, contending that the "mixed load" restriction was ambiguous, that Greenstein was operating in violation of the restriction, and that the authority granted was broader than that applied for and noticed in the Federal Register. Protestants requested that on further hearing the ICC modify Greenstein's certificate to grant no greater authority than that sought by Greenstein's original application. In November, 1967, the Commission denied reopening and protestants subsequently sought relief in this court.
In connection with its first encounter with this controversy, three aspects of the case gave the court concern. First, were protestants denied procedural due process when they were denied a hearing as to the effects and consequences of substituting the "mixed load" restriction for the "multiple pickup and delivery" restriction originally sought by Greenstein. Secondly, there was concern over the ambiguity of the "mixed load" restriction. Thirdly, the court questioned whether the Commission should not have made some effort to ascertain whether Greenstein was in fact operating within the authority granted. The court concluded that protestants should have been given an opportunity to be heard on the consequences of the substituted "mixed load" restriction and remanded the case to the Commission for the purpose of providing such a hearing.
On remand, the Commission republished in the Federal Register the authority granted to Greenstein and further hearings were conducted. On June 24, 1971, the Commission rendered its decision which eliminated the "mixed load" restriction from Greenstein's certificate and modified the certificate so that it was restricted to the transportation of traffic originating at the plant-sites, or storage facilities, of Armour & Company at Chicago, Illinois; St. Paul, Minnesota, and points in Wisconsin and destined to points in Alabama, Georgia, Florida, South Carolina, and Tennessee (hereinafter the "single plantsite" restriction). Greenstein's petition for reconsideration was denied by the Commission on October 5, 1971, and the petition for determination of an issue of general transportation importance was denied on November 12, 1971.
In December 1971 Greenstein instituted this action in the Southern District of Florida seeking to enjoin the operation of the Commission's order. The court denied Greenstein's motion for a temporary restraining order and ordered that the case be transferred to the Northern District of Georgia.
In challenging the Commission's action, plaintiff's contentions are twofold. First, plaintiff contends that the action taken by the Commission in imposing the "single plantsite" restriction is contrary to the 1969 mandate of this court. Secondly, plaintiff argues that the Commission's order is unsupported by both the evidence and the Commission's own findings and is therefore arbitrary. Plaintiff requests that the court set aside the Commission's action which imposed the "single plantsite" restriction and that the case be remanded to the Commission with directions to enter an order consistent with one of the three alternatives: (a) reinstating the "mixed load" certificate issued on October 12, 1965; or (b) issuing a revised certificate restricting the authority granted in the "mixed load" certificate so as to bar interlining;1 or (c) issuing a revised certificate containing the "multiple pickup and delivery" restrictions originally applied for by plaintiff.
The language used by the court in remanding the case in 1969 is as follows:
Under strict analysis the Commission had two alternatives under the order remanding the case. The Commission could allow the certificate to stand as issued with the "mixed load" restriction, or it could set aside the certificate as issued. The mandate is mute as to what action, if any, the Commission could or should take if it determined that the certificate as issued should be set aside.
On remand, the Commission determined that its action in issuing the certificate with the "mixed load" restriction had been inappropriate. Therefore, the effect of the Commission's action was to set aside the certificate as previously issued.2 Under the mandate of this court the Commission need not have gone any further. Nevertheless, the Commission determined that a certificate should be issued but that it should be modified to include a "single plantsite" rather than a "mixed load" restriction. This action by the Commission constitutes a determination as to which the 1969 mandate is mute.
It does not necessarily follow, however, that the Commission in modifying the certificate acted without having authority to do so. Since the mandate neither prescribes nor proscribes the action taken, the question becomes whether, notwithstanding the 1969 mandate, the Commission had the authority and power to modify the certificate as it did on rehearing. We have concluded that the Commission does have such authority.
In Carl Subler Trucking, Inc. v. United States, 313 F.Supp. 971 (S.D.Ohio 1970), the carrier applying for a certificate amended his application to change the point of origin. A certificate was subsequently issued granting the authority sought in the carrier's amended application. Contrary to expectations, the certificate had the effect of conferring broader authority than that originally sought, since under the certificate as issued the carrier could provide an expanded service by tacking at the point of origin the authority granted to it by various certificates.3 Competing carriers, who were adversely affected by the expanded service and who had received no notice of the amended application, sought to prohibit the tacking operations. The Commission, after review, cancelled the certificate as issued and issued a corrected certificate restricting the scope of the point of origin, thereby effectively eliminating the tacking operations. The then-aggrieved applicant sought judicial review contending that the Commission had no authority to modify the certificate. In rejecting the contention, a three-judge court...
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Eagle Motor Lines, Inc. v. I. C. C., 76-2098
...primarily in the so-called failure-of-notice cases. Greenstein Trucking Co., 113 M.C.C. 489 (1971), aff'd, Greenstein Trucking Co. v. United States, 343 F.Supp. 194 (N.D.Ga.1972); Curtis, Inc., 113 M.C.C. 170 (1971), aff'd, No. C-3498 (D.Colo. July 21, 1975); Clarence M. May, 106 M.C.C. 118......