Greenstein Trucking Company v. United States, Civ. A. No. 16028.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtBELL, Circuit , EDENFIELD and O'KELLEY
PartiesGREENSTEIN TRUCKING COMPANY, a corporation v. UNITED STATES of America et al.
Docket NumberCiv. A. No. 16028.
Decision Date05 June 1972

343 F. Supp. 194

GREENSTEIN TRUCKING COMPANY, a corporation
v.
UNITED STATES of America et al.

Civ. A. No. 16028.

United States District Court, N. D. Georgia, Atlanta Division.

June 5, 1972.


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.

EDENFIELD, District Judge:

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).

Case History

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

343 F. Supp. 195
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

343 F. Supp. 196
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.

Scope of 1969 Remand

The language used by the court in remanding the case in 1969 is as follows:

". . . The Commission should order a republication in the Federal Register of the ICC order and certificate as granted, with an opportunity being given the plaintiffs protestants to offer evidence and to be heard. The Commission will then re-examine the evidence and the arguments and determine whether or not its action and order should stand or be set aside."

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...

To continue reading

Request your trial
1 practice notes
  • Eagle Motor Lines, Inc. v. I. C. C., No. 76-2098
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 24, 1977
    ...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 (1967), aff'......
1 cases
  • Eagle Motor Lines, Inc. v. I. C. C., No. 76-2098
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 24, 1977
    ...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 (1967), aff'......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT