Heavy Duty Haulers, Inc. v. United States

• Decision Date: 21 November 1968
• Docket Number: Civ. A. No. AC-1618.
• Citation: 293 F. Supp. 887
• Parties: HEAVY DUTY HAULERS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — District of South Carolina

293 F. Supp. 887

HEAVY DUTY HAULERS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. AC-1618.

United States District Court D. South Carolina, Columbia Division.

November 21, 1968.

Irvine F. Belser, Jr., Columbia, S. C., Leonard A. Jaskiewicz and J. William Cain, Jr., Washington, D. C., for plaintiff.

Edwin M. Zimmerman, Asst. Atty. Gen., George Edelstein, Dept. of Justice, Washington, D. C., Klyde Robinson, U. S. Atty. for Dist. of S. C., Columbia, S. C., for United States.

Robert W. Ginnane, Gen. Counsel, I. C. C., Washington, D. C., and Betty Jo Christian, Atty., I. C. C., Washington, D. C., for Interstate Commerce Commission.

HEMPHILL, District Judge.

On October 25, 1968, this court issued its opinion and order denying plaintiff relief from a ruling of the Interstate Commerce Commission issued December 7, 1964 as culmination of an investigation proceeding 293 F.Supp. 879. The 1968 order effectively terminated a proceeding before a statutory¹ court which was called to decision as a result of plaintiff's complaint of January 11, 1965. In the ensuing years proceedings had been postponed from time to time, usually to convenience plaintiff or plaintiff's counsel. On January 11, 1965, this court issued its restraining order to the Commission prohibiting enforcement pendente lite. Through the years the government has not made strenuous objection to the restraining order. The October 25 ruling struck down the restraining order.

On November 4, 1968, plaintiff² filed its motion for an order "modifying and amending the opinion and order of this court filed October 25, 1968, so as to continue and extend the temporary restraining order heretofore issued herein by this court as the application of Heavy Duty Haulers, Inc. * * * (Docket No. MC 109430 Sub 11) presently pending before the Interstate Commission is finally decided." With expressed misgivings, a single judge of this court restrained enforcement until the motion could be heard. Arguments were presented before the single judge on November 14, 1968. The government vigorously opposed the motion.

Plaintiff's counsel stated that an appeal had not been noticed; the official file reflects none. Therefore, Rule 62(c)³ does not apply. Rule 60(b) (6) is the possible avenue of relief and provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (6) any other reason justifying relief from the operation of the judgment.

Plaintiff's counsel, in oral argument, stated that seventy (70) percent of plaintiff's operations were in violation of the Commission's Order of 1964 and for the first nine months of 1968 were:⁴

                                                   TOTAL REVENUE ON
                                TOTAL INTERSTATE   COMMODITIES CONSIDERED
                                REVENUE            NOT ROAD BUILDING MACH
                January, 1968        8,536.98            5,020.74
                February, 1968      23,432.00            9,730.26
                March, 1968         26,953.80           17,588.53
                April, 1968         26,379.27           20,916.21
                May, 1968           22,663.67           18,154.10
                June, 1968          20,841.52           12,433.38
                July, 1968          26,370.67           13,461.11
                August, 1968        24,613.79           21,567.04
                September, 1968     49,665.30           37,953.12
                                   __________          __________
                                   229,457.00          156,824.49
                68% of Total Revenue for first nine mos. of 1968 is other
                than road building machinery
                

Plaintiff also submitted an anticipated schedule of proceedings before the Commission in Docket No. MC-109430, Sub 11:

Anticipated Examiner's Report December 10, 1968

Exceptions and Replies January 31, 1969

Decision and Order April 15, 1969

Petitions and Replies June 1, 1969

Final Order August 1, 1969

Certificate Issued September 1, 1969

Plaintiff has made a motion before the Commission for identical relief, which is presently under advisement.

At the threshold we face the language of Part II of the Interstate Commerce Act.⁵

Powers and duties of Commission — Powers and duties generally.

(a) It shall be the duty of the Commission—

(1) To regulate common carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.

(6) To administer, execute, and enforce all provisions of this chapter, to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration; and

The Commission has full power over the regulation of both vehicles and facilities of interstate common carriers. State of Georgia v. United States, 201 F.Supp. 813 (D.C.Ga.1961) aff'd 371 U.S. 9, 83 S.Ct. 21, 9 L.Ed.2d 47; Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). Congress has provided a forum for review of the exercise of those powers by 18 U.S.C. § 2284. For this court to continue its initial restraining order would in effect reverse the decision issued, and invade the authority of the Commission. The court specified in its order that its decision was not intended to invade, preempt, or supersede the proceedings in Docket No. MC-109430, Sub 11. The exercise of authority is now in the hands of the Commission. In the opinion of this court it should remain there.

Absent an appeal from this court's order of October 25, 1968, if there is such immediate and urgent need for the transportation service as plaintiff claims, Congress has provided an avenue of relief in 49 U.S.C. § 310a(a):⁶

Temporary authority

(a) To enable the provision of service for which there is an immediate and urgent need to a point or points or within a territory having no carrier service capable of meeting such need, the Commission may, in its discretion and without hearings or other proceedings, grant temporary authority for such service by a common carrier or a contract carrier by motor vehicle, as the case may be. Such temporary authority, unless suspended or revoked for good cause, shall be valid for such time as the Commission shall specify, but for not more than an aggregate of one hundred and eighty days, and shall create no presumption that corresponding permanent authority will be granted thereafter.

It may well be that the 180-day limitation would serve as impetus for speedy Commission decision if relief were afforded the plaintiff under the temporary grant authority. In any event, it is for the Commission to decide, and, again, this court does not preempt or suggest by this order.

Finally, if this were an appeal, and plaintiff was seeking relief under Rule 62, or, absent an appeal there was reason to believe the Commission did not possess authority to grant the relief sought which authority it clearly has, or the Commission's actions were so arbitrary, or could be otherwise characterized as defeating, avoiding, or aborting justice and there is no such showing here this court finds guidance in the significant language of Virginian R. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 227, 71 L.Ed. 463, 471 (1926):

The character of the proceeding and the end sought are the same in the two statutes. The two provisions originated in the same Act. Section 266 is a codification of § 17 of the Act of June 18, 1960, c. 309, 36 Stat. 539, 557, Comp.Stat. § 1243. The provision of the act of 1913, here in question, is an adaptation to the District Courts of Section 3 of the act of 1910, which prescribed the procedure for such applications before the commerce court * * *. No reason is suggested why the rule governing in cases of appeals from the District Court under Section 266 should not apply also to appeals from those courts under the act of 1913. Moreover, the latter act, in referring in the same connection to appeals from final decrees, declares that `such appeals may be taken in like manner as appeals are taken under existing law in equity cases.' Congress evidently deemed that it had adequately guarded against the dangers incident to the improvident issue of the writs of injunction in cases of this character by the provisions which require action by the court of three judges, which permit of expediting the hearings before the District Court, which shorten the period of appeal, and which

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