Greyhound Corporation v. United States, Civ. A. No. 62 C 983.

Decision Date11 September 1963
Docket NumberCiv. A. No. 62 C 983.
Citation221 F. Supp. 440
PartiesGREYHOUND CORPORATION, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, Carolina Scenic Stages, Intervenor-Defendant.
CourtU.S. District Court — Northern District of Illinois

Robert J. Bernard and Peter K. Nevitt, Edmund J. Kenny, Chicago, Ill.; Winston, Strawn, Smith & Patterson, Chicago, Ill., of counsel, for plaintiff Greyhound Corp.

Robert W. Ginnane, Gen. Counsel, and H. Neil Garson, Associate Gen. Counsel, Interstate Commerce Commission, Washington, D. C., for defendant Interstate Commerce Commission.

Lee Loevinger, Asst. Atty. Gen., and John H. D. Wigger, Dept. of Justice, Washington, D. C., and James P. O'Brien, U. S. Atty. for the Northern District of Illinois, Chicago, Ill., for defendant United States.

Joseph M. Scanlan, Chicago, Ill., and Wilmer A. Hill, Washington, D. C.; Ames, Hill & Ames, Washington, D. C., of counsel, for intervenor-defendant Carolina Scenic Stages.

Before KILEY, Circuit Judge, LA BUY, Senior District Judge, and WILL, District Judge.

WILL, District Judge.

In this action under Title 28 U.S.C. §§ 1336, 2284 and 2321-2325, Greyhound challenges the validity of two orders of the Commission, dated August 31, 1961, and January 12, 1962, under which Carolina is authorized to operate regular direct service over an alternate route between Columbia and Orangeburg, South Carolina. The orders in question were issued by the Commission under section (c) (8) (i) of what are known as its Deviation Rules, 49 C.F.R. §§ 211.1 et seq.

Prior to October, 1960, Carolina operated no direct or through service between Columbia and Orangeburg. It operated a through route from Columbia to Charleston, South Carolina, and a connecting shuttle service in combination with its wholly owned subsidiary, Coastal Stages Corporation, from Creston, a point on the Columbia-Charleston route, to Orangeburg. Its running time between Columbia and Orangeburg over this route varied between one hour and twenty-three minutes and one hour and thirty-five minutes.

In October, 1960, Greyhound operated a direct service between Columbia and Orangeburg with running times between fifty-nine minutes and one hour and fifteen minutes.

All of the foregoing services were operated pursuant to certification by the Commission.

On October 10, 1960, Carolina filed with the Commission notice of a proposed route deviation, advising that it intended to use Interstate Highway 26 (a new superhighway) between Columbia and Orangeburg as an alternate to its certificated route which alternate route would save 17 miles, and 27 minutes, on the run. Greyhound filed a protest with the Commission on November 22, 1960.

On January 11, 1961, Carolina started operating on the alternate route. On March 17, 1961, Division 1 of the Commission entered an order denying the proposed deviation on the ground that it failed to meet the requirements of the Deviation Rules. Carolina then filed a petition for reconsideration to which Greyhound also objected.

The Commission, by order of August 31, 1961, approved the use by Carolina of the alternate route. Greyhound petitioned for reconsideration which petition was denied on January 12, 1962, as follows:

"* * * (1) the order of August 31, 1961, was entered in accordance with law after it appeared (a) that the order of March 17, 1961, by the Commission, Division 1, rejecting applicant's Deviation Notice No. 3, should be vacated and set aside, and (b) that the operations proposed by applicant in Deviation Notice No. 3 meet the provisions of the Commission's Deviation Rules, revised 1957, and that such proposed operations lawfully may be conducted; and (2) no sufficient cause appears for reconsidering or vacating the order of August 31, 1961, or for granting any of the other relief sought; * * *."

Thereafter, Greyhound brought this suit to set aside and enjoin the orders in question.

The Commission's Deviation Rules and Regulations, 49 C.F.R. §§ 211.1 et seq., were promulgated under its general rule making power, section 204(a) (6) of the Interstate Commerce Act, 49 U.S.C. § 304(a) (6), to implement the provisions of section 208(b) of the Motor Carrier Act, 49 U.S.C. § 308(b), which provides:

"A common carrier by motor vehicle operating under any such certificate may occasionally deviate from the route over which, and/or the fixed termini between which, it is authorized to operate under the certificate, under such general or special rules and regulations as the Commission may prescribe."

We are here concerned only with that portion of the Deviation Rules relating to alternate routes which provides:

"(c) Authority for deviations by motor carriers from operating authorities in described circumstances * * *
(1) - (7) * * *
* * * * * *
(8) Alternate routes for operating convenience only. Where a regular motor carrier is authorized to operate over a regular service route and there is wholly within the United States another highway which extends in the same general direction as such regular service route and affords a reasonably direct and practicable route between any two points on such regular service route, it may, subject to the general conditions and requirements set forth in paragraph (d) of this section, use such other highway as an alternate route for operating convenience only with no service at any intermediate point thereon, and with no service at the termini except as otherwise authorized, in the manner and to the extent, as follows:
(i) Superhighways as alternate routes * * * Provided, That the use of the alternate route will not materially change the competitive situation between such carrier and any other."

Greyhound contends that the provisions of the Deviation Rules authorizing the Commission to approve alternate routes as deviations without requiring a finding of public convenience and necessity are invalid and beyond the Commission's powers under section 208(b) of the Motor Carrier Act previously quoted.

It also challenges the orders of August 31, 1961, and January 12, 1962, on the ground that, even if the provisions of the Deviation Rules authorizing the Commission to approve alternate routes are valid, the orders in question are unsupported by any findings that the use of the alternate route by Carolina will not materially change the competitive situation between it and any other carrier. In this connection Greyhound asserts that no hearing on the proposed alternate route was held, no evidence was received on its competitive effect and the Commission, therefore, acted contrary to its Deviation Rules in issuing the challenged orders.

The Commission asserts that authorizing alternate routes is a valid exercise of its power under section 208(b) of the Motor Carrier Act to approve deviations, that its orders of August 31, 1961, and January 12, 1962, are proper and, finally, that Commission orders permitting a regular certificated motor carrier to use a newly constructed superhighway as an alternate regular service route to its certificated route are not subject to judicial review.

We will consider first the question of whether the two orders are subject to judicial review. It is well settled, of course, that not all administrative orders are subject to judicial review, but the categories of non-reviewable orders are relatively limited. Where Congress has expressly conferred ultimate discretion on the executive, the determination is not subject to judicial review. See, e. g., United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259 (1940) in which the President's power to adjust tariffs under the Flexible Tariff Act of 1930 was held not subject to judicial review. This principle is recognized specifically in section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009.

But we find no such absolute or exclusive discretion conferred upon the Commission by section 208(b) of the Motor Carrier Act. On the contrary, there appears to be no reason why any rules and regulations promulgated under section 208(b) and any orders issued under such rules should not be subject to judicial review unless they fall within what the Supreme Court has termed "abstract declarations" not determining rights or obligations and from which no legal consequences will flow. Pennsylvania R. Co. v. United States, 363 U.S. 202, 205, 80 S.Ct. 1131, 4 L.Ed.2d 1165 (1960).

Greyhound here challenges the validity of the Commission's Deviation Rules themselves to the extent that they authorize the approval of regular alternate routes as deviations. The question of whether rules...

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3 cases
  • Rutherford v. United States
    • United States
    • U.S. District Court — Western District of Oklahoma
    • December 5, 1977
    ...must be consistent with the statute's purposes and reasonably adapted to carry out those purposes. Greyhound Corporation v. United States, 221 F.Supp. 440, 444 (N.D.Ill.1963). Having reviewed the Decision of the Commissioner of Food and Drugs on Laetrile, dated July 29, 1977, (42 Fed.Reg. 3......
  • Refrigerated Transport Co., Inc. v. United States
    • United States
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    • April 14, 1975
    ...powers of review under 5 U.S.C. § 706(2)(A), we find the ICC's action to be arbitrary and capricious. Greyhound Corporation v. United States, 221 F.Supp. 440 (N.D.Ill. 1963). In summary, the Court, after reading voluminous briefs and hearing lengthy argument, finds that the ICC gave no noti......
  • Legge v. United States
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 6, 1965
    ...These were factual determinations. They are subject neither to revision nor substitution by the courts. Greyhound Corp. v. United States, (D. C.N.D.Ill., 1963), 221 F.Supp. 440. Third, did the Commission consider all factors necessary to make a determination of the element of safety? We thi......

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