International Detective Service, Inc. v. United States

• Decision Date: 19 July 1972
• Docket Number: Civ. A. No. 4860.
• Citation: 346 F. Supp. 608
• Parties: INTERNATIONAL DETECTIVE SERVICE, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Mercer & Dunbar Armored Car Service, Intervenor Defendant.
• Court: U.S. District Court — District of Rhode Island

346 F. Supp. 608

INTERNATIONAL DETECTIVE SERVICE, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Mercer & Dunbar Armored Car Service, Intervenor Defendant.

Civ. A. No. 4860.

United States District Court, D. Rhode Island.

July 19, 1972.

Morris J. Levin, Washington, D. C., for plaintiff.

Lincoln C. Almond, U. S. Atty., Providence, R. I., Richard Streeter, Washington, D. C., for defendant.

James K. Edwards, Providence, R. I., Peter A. Greene, Washington, D. C., for intervenor defendant.

Before McENTEE, Circuit Judge, PETTINE, Chief Judge and DAY, District Judge.

OPINION

DAY, District Judge.

In this action the plaintiff seeks to enjoin, set aside and annul an order of the Interstate Commerce Commission which granted temporary authority as a contract carrier by motor vehicle to the intervening defendant, Mercer & Dunbar Armored Car Service, Inc. (hereinafter Mercer & Dunbar) to transport scrap platinum and platinum coated electrodes for the account of American Optical Corporation (hereinafter American Optical) over irregular routes between Southbridge, Massachusetts and Cartaret, New Jersey. Such temporary authority was granted by the Commission pursuant to the provisions of Section 210a(a) of the Interstate Commerce Act, 49 U.S.C. Section 310a(a).

Jurisdiction of this Court is invoked by the plaintiff under the provisions of Section 205(g) of the Interstate Commerce Act, 49 U.S.C. Section 305(g), 28 U.S.C. §§ 1336, 2284, 2321, 2322 and 2325 and 5 U.S.C. §§ 702-706. After filing of the plaintiff's complaint a three judge court was duly designated, pursuant to 28 U.S.C. § 2284, to hear and determine the merits of this action as required by 28 U.S.C. § 2325.

The record of the proceedings before said Commission shows that prior to the filing of its application for said grant of temporary authority Mercer & Dunbar had transported scrap platinum and platinum coated electrodes for said American Optical over irregular routes between Southbridge, Massachusetts and Cartaret, New Jersey, for some time in the mistaken belief it had authority to do so. Upon reviewing its authority, it concluded that it lacked the requisite authority to perform such service and immediately terminated said service. On December 1, 1971, it filed with said Commission its application under the provisions of Section 210a(a) of the Interstate Commerce Act, 49 U.S.C. § 310a(a), and the Commission rules thereunder, seeking the issuance of an order granting it temporary authority for a period of 150 days to transport such scrap platinum and platinum coated electrodes for American Optical over irregular routes between Southbridge, Massachusetts and Cartaret, New Jersey. Said application was supported by American Optical whose traffic manager submitted to said Commission a certified statement setting forth its immediate and urgent need for the proposed service, and relating its unsatisfactory experience with a prior carrier thereof. Said statement also expressed its complete satisfaction with the carrier service rendered by Mercer & Dunbar until the latter terminated its services. It further stated that American Optical had endeavored to obtain similar service from two other carriers, who apparently lacked authority from said Commission to perform such service between the points involved.

Notice of the filing of said application was published in the Federal Register on December 10, 1971, and, thereafter, on December 20, 1971, the plaintiff filed its protest to said application. In its protest plaintiff alleged that the performance of said service by Mercer & Dunbar was "without a shadow of authority or color of right and was blatantly illegal". It alleged that "such illegal operations demonstrate the lack of fitness of the applicant, which by itself requires a denial of the pending application". Additionally it alleged that on February 8, 1971, it had applied to the Commission for temporary authority to transport, as a common carrier, bullion and precious metals between points in Rhode Island, Massachusetts, Connecticut, New York and New Jersey, and that a protest to that application was filed by Mercer & Dunbar on March 1, 1971. It also alleged therein that it applied for permanent authority, as a common carrier, to transport precious metals (among other commodities) between the same points, as in said application for temporary authority on April 15, 1971 and that Mercer & Dunbar filed a protest to said application and has continued to vigorously oppose said application. It also claims that when Mercer & Dunbar stated in its application, filed December 1, 1971, in response to item "7" therein that it "has not" opposed any other carrier's application to perform the proposed service, such answer was false and is a further indication of its unfitness. It further claimed that it had contacted American Optical on December 31, 1971 and advised it of the availability of its services.

On December 27, 1971, counsel for Mercer & Dunbar sent a letter to the Commission in which he denied many of the allegations made by the plaintiff in its protest. He also clarified the description of the "scrap platinum" to be transported by declaring that it would be in the form of a platinum ash and as such is not a "precious metal". He further stated it was his belief that the platinum coated electrodes could not be classified as "precious metals" within the plaintiff's grant of temporary authority.

The Commission, acting through its Motor Carrier Board, on January 27, 1972, rejected the plaintiff's protest and found that there was an immediate and urgent need by American Optical for the services proposed by Mercer & Dunbar and that there was no carrier service available which was capable of filling such need. It granted the latter temporary authority as a contract carrier to transport said scrap platinum and platinum coated electrodes between the points requested for a period of 90 days commencing no sooner than March 1, 1972. An order documenting its decision was served on February 1, 1972.

On February 2, 1972, the plaintiff filed with the Commission a "Petition For Reconsideration and Stay of Order Providing Temporary Authority" and a "Petition For Immediate Consideration and Expedited Action". In said petitions the plaintiff contended that the Commission erred in finding that there was "an immediate and urgent need" for the proposed service and in finding there was no carrier service available capable of meeting such need. It also contended that the Commission erred in not finding Mercer & Dunbar unfit to provide the proposed service.

Subsequently, on February 25, 1972, the Commission (Appellate Division 1) denied both of the plaintiff's petitions. An order was served on the parties on February 28, 1972. The plaintiff then filed the instant action on March 1, 1972.

In its complaint the plaintiff alleges that said orders granting said temporary authority to Mercer & Dunbar is based upon a misinterpretation of law, is contrary to the only evidence of record, and is arbitrary and capricious, constituting an abuse of administrative discretion.

Said Section 210a(a) of the Interstate Commerce Act, 49 U.S.C. § 310a(a), reads as follows:

"(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 Commisison 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 eighty days, and shall create no presumption that corresponding permanent authority will be granted thereafter."

It is well settled that the scope of review of orders of the Commission granting temporary authority under Section 210a(a) of the Interstate Commerce Act, 49 U.S.C. § 310a(a), is limited. Such orders need not be supported by substantial evidence. They must be upheld by the courts if they are supported by some evidence and the Commission's action is not found to be arbitrary or capricious. Navajo Freight Lines, Inc. v. United States, 320 F.Supp. 318 (D.New Mexico 1970); Bell Lines, Inc. v. United States, 306 F.Supp. 209 (S.D. W.Va.1969), aff'd per curiam, 397 U.S. 818, 90 S.Ct. 1517, 25 L.Ed.2d 804 (1970); Superior Trucking Company v. United States, 302 F.Supp. 257 (N.D. Ga.1969); Merchants...