JT Transport Company v. United States

• Decision Date: 21 February 1961
• Docket Number: No. 12962.,12962.
• Citation: 191 F. Supp. 593
• Parties: J-T TRANSPORT COMPANY, Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Western District of Missouri

191 F. Supp. 593

J-T TRANSPORT COMPANY, Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

No. 12962.

United States District Court W. D. Missouri, W. D.

February 21, 1961.

Glenn M. Elliott, Wrape & Hernley, Memphis, Tenn., John H. Kreamer, Gage, Hodges, Moore, Park & Kreamer, Kansas City, Mo., for plaintiff.

Atty. Gen. of the United States of America, by Joel E. Hoffman, Washington, D. C., Edward L. Scheufler, U. S. Atty., Western Dist. of Missouri, by

Horace Warren Kimbrell, Asst. U. S. Atty., Kansas City, Mo., H. Neil Garson, Associate Gen. Counsel Interstate Commerce Commission, Washington, D. C., for defendants.

Before MATTHES, Circuit Judge, and RIDGE and SMITH, District Judges.

RIDGE, District Judge.

This is an action to enjoin the enforcement of, and to set aside, an order of the Interstate Commerce Commission, (Division No. 1, acting as an Appellate Division) entered on August 4, 1960, in Docket No. MC-11185 (119 TA) J-T Transport Company, Inc. (hereafter referred to as J-T) revoking temporary authority previously granted plaintiff by the I.C.C. Temporary Authorities Board (hereafter referred to as T.A.B.). This Court has jurisdiction under 28 U.S.C.A. §§ 1336, 1398, 2284 and 2321-2325, inclusive.

The undisputed facts are as follows: On May 3, 1960, J-T, as a contract motor carrier, in order to provide Lockheed Aircraft Corporation's (hereafter referred to as Lockheed) immediate and urgent need for motor carrier transportation, filed an application with the I.C.C. for temporary authority to transport aircraft assemblies, (except aircraft engines) over irregular routes, generally stated, from specified points of entry on the United States-Canadian International Boundary, to Burbank and Palmdale, California, the shipments originating at Montreal, Canada. U.S.A.C. Transport, Inc., a common carrier, (hereafter called U.S.A.C.) filed a protest to that application on May 12, 1960. On June 7, 1960, T.A.B., without formal hearing, entered an order granting J-T temporary authority on the premise that there was no carrier service available capable of meeting Lockheed's need.¹ U.S.A.C., on June 27, 1960, filed a petition for reconsideration of that T.A.B. order. J-T filed a reply thereto on July 25, 1960. On August 4, 1960, Division 1, acting as an Appellate Division, entered an order granting U.S. A.C.'s petition for reconsideration and reversed the action of T.A.B. by revoking the temporary authority previously granted, "for the reason that U.S.A.C. Transport, Inc., is authorized to, and can, perform the service as a common carrier." Such revocation was made effective as of August 25, 1960. On August 17, 1960, J-T filed a petition for: (1) stay of the effective date of the Division 1 order; (2) for reconsideration by Division 1 of that order; and (3) for reconsideration thereof by the full Commission. U.S.A.C. filed a reply to J-T's petition for stay and rehearing, etc., on August 26, 1960. However, prior to the filing of such reply, Division 1 had entered an order on August 24, 1960, denying the stay and denying the petition for reconsideration and review, etc., "for the reason that no showing has been made which would warrant a conclusion different from that reflected by the said order of August 4, 1960 * * *." The last-mentioned Division 1 order restated the effective date of revocation of J-T's temporary authority to be August 25, 1960.

Four days later, J-T Transport Company, Inc., commenced the instant action and applied to the Judge to whom this action was first assigned, for a temporary restraining order. On that date, August 29, 1960, a telegram was dispatched to the Commission, requesting the status quo be maintained pending convening of a Three-Judge Court to hear the motion for temporary restraining order and interlocutory injunction, concurrently. Upon refusal of the Commission to accede to that request, a temporary restraining order was issued, on August 31, 1960, pursuant to Section 2284(3), Title 28, U.S.C.A.

September 5, 1960, by stipulation of the parties, the effective date of the restraining order supra was continued to October 1, 1960, "in order that the United States of America and the Interstate Commerce Commission may ascertain and determine the attitude which the defendants wish to adopt with respect to the allegations in the complaint, * * * and in order that there shall be no disruption of transportation service being performed by plaintiff under the temporary authority in the interim." (Stip. filed Sept. 15, 1960.) By subsequent stipulation of the parties filed and orders entered, the restraining order originally issued was "continued in full force and effect until the Three-Judge Court herein assembled shall have handed down its opinion on the application of plaintiff for an interlocutory injunction."

Antecedent to the filing of its application for temporary authority above mentioned, J-T, on October 12, 1959, filed an application for permanent authority with the I.C.C. pursuant to Section 209(b) of the Interstate Commerce Act, (49 U.S. C.A. § 309(b)) to operate as a contract carrier and perform the same transportation as described in relation to the temporary authority application above mentioned. U.S.A.C. filed protest to that application, also. A hearing was held on that application before an I.C.C. Examiner on January 4, 1960. After such hearing the I.C.C. Examiner recommended that permanent authority, as prayed, be granted to J-T, notwithstanding U.S.A. C.'s protest. In due course that matter came on for consideration by Division 1. While several carriers initially expressed interest in J-T's application for such permanent authority, only one motor carrier, U.S.A.C., appeared in opposition.

U.S.A.C. is a common carrier by motor vehicle, possessing authority, so far as here pertinent and generally stated, to transport uncrated aircraft parts and equipment initiating at points east of the Mississippi River, to points in that part of the United States west of that river. In the protests filed to J-T's application for temporary authority, U.S. A.C. expressed a readiness, willingness, and an ability to make proper arrangements and provide common carrier transportation in respect to the service required by Lockheed.²

On June 24, 1960, J-T's application for permanent authority was denied by report and order of the Commission, Division 1, in J-T Transport Company, Inc., Extension Burbank and Palmdale, California, Docket No. MC-11185 (Sub-No. 114). J-T filed a petition for reconsideration thereof on September 5, 1960, and U.S.A.C. replied on October 3, 1960. The petition for reconsideration is currently under consideration by the Commission.

Since T.A.B. granted J-T temporary authority as above stated, J-T has had an arrangement with a Canadian carrier whereby equipment of J-T is devoted to the contract carrier service it is performing for Lockheed, and the same is used in transportation service from Montreal to the United States-Canadian International Boundary by a Canadian carrier, where J-T then takes over the shipment and transports the same to Burbank and Palmdale, California. According to the Division 1 order of June 24, 1960, above mentioned, it appears that there is no impediment to a common carrier devoting specialized equipment to a particular shipper's need, if all other shippers are afforded such common carrier service.

Prior to 1959, Lockheed had sub-contract arrangements with manufacturers at Grand Prairie, Texas and Wichita, Kansas, for production of certain sub-assembly airplane parts which it caused to be transported, by way of contract motor carriers, from the plants of those sub-contractors to its own plants in Burbank and Palmdale, California. During that period, J-T, under grant of contract carrier authority from the I.C.C., performed and effected such transportation according to Lockheed's needs. In the latter part of 1959, Lockheed's contract with the above-mentioned sub-contractors expired. Lockheed then changed its source of supply for sub-assemblies, by entering into a sub-contract with Canadair, Ltd. to produce the same at Montreal, Canada. The transportation service here involved, simply stated, relates to a change of Lockheed's source of supply from Grand Prairie, Texas and Wichita, Kansas, to Montreal, Canada; and a concomitant application by J-T for extension of authority to provide that transportation as it had done in the past.

As above stated, Division 1 denied J-T's application for permanent authority on June 24, 1960.³ It was August 4, 1960, that Division 1 set aside and revoked T.A.B.'s grant of temporary authority to J-T. Certainly, Division 1 had before it, or in its expertise had knowledge of, the findings and conclusions it had made in the prior order, when it revoked T.A.B.'s initial grant of temporary authority to J-T.⁴

It is the position of J-T in this case that in promulgating the orders of August 4 and 24, 1960, revoking its temporary authority, Division 1 of the I.C.C. (Commissioners Murphy, Goff and Herring presiding) acted arbitrarily, capriciously and without authority, and, in so doing, has deliberately flaunted the judgment of this Court (Circuit Judges Johnsen and Matthes and District Judge Smith) handed down on August 9, 1960, in J-T Transport Company, Inc. v. United States et al., 185 F.Supp. 838, as well as the judgment of a Three-Judge Court for the Western District of Arkansas, Fort Smith Division, (Circuit Judge Matthes and District Judges Miller and Young) handed down on October 19, 1960, in Reddish et al. v. United States et al., D.C., 188 F.Supp. 160. More specifically stated, it is J-T's contention: (1) that the orders of Division 1, denying its application for temporary authority, are predicated solely and alone on the adequacy, willingness and ability test, the subject of adjudication by the Three-Judge Courts in the above-cited opinions; and, as a...