Port Norris Express Company, Inc. v. Interstate Commerce Commission
| Decision Date | 18 January 1985 |
| Docket Number | No. 83-1929,83-1929 |
| Citation | 751 F.2d 1280 |
| Parties | PORT NORRIS EXPRESS COMPANY, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William P. Jackson, Jr., Washington, D.C., with whom David C. Reeves, Arlington, Va., was on the brief, for petitioner.
Dennis J. Starks, Atty., I.C.C., Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., John Broadley, Gen. Counsel, I.C.C., Robert B. Nicholson, and Margaret G. Halpern, Attys., U.S. Dept. of Justice, Washington, D.C., were on the brief, for respondent.
Before TAMM and EDWARDS, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge TAMM.
Port Norris Express Company (Port Norris) petitions this court to vacate an order of the Interstate Commerce Commission (Commission) granting motor common carrier authority to David Beneux Produce & Trucking, Inc. (Beneux). Port Norris argues that the Commission granted Beneux authority to transport general commodities in bulk form without the requisite evidentiary showing by Beneux that it was fit, willing, and able to provide such services. For the reasons discussed below, we remand the Commission's order with directions to impose a bulk restriction on Beneux's authority.
Beneux filed an application with the Commission in February 1983 requesting authority to transport general commodities throughout the continental United States. Appendix (App.) at 1-35. Under the Commission's classification system, authority to transport general commodities includes the right to transport bulk commodities, 1 household goods, and explosives unless specifically excepted from the grant. Beneux's application excepted household goods and explosives, but not bulk commodities. Beneux held existing certificates authorizing it to engage in operations in 48 states, including five certificates authorizing it to transport general commodities radially. 2 By its application, Beneux sought to round out its fragmented authority. With general commodities authority, it could lessen or eliminate deadhead mileage by seeking backhaul loads.
Beneux's application consisted of the standard application form, the verified statement of its president, two exhibits setting forth its existing authorities, and the statements of three supporting shippers. The application indicated that Beneux operated seventy diesel tractors and seventy-five high-cube trailers equipped with refrigeration units. Beneux stated that it had the financial ability to acquire additional equipment to meet the needs of its shippers and the expertise to move any type of commodity throughout the United States. The supporting shippers were Seneca Foods Corporation (desiring transportation of foodstuffs, materials, equipment, and supplies used in the manufacturing and distribution of foodstuffs), Coleco Industries, Inc. (plastic games and toys), and National Spinning Co., Inc. (yarn wool and synthetic fiber yarns).
Port Norris, a common carrier specializing in the transportation of bulk commodities, filed a protest to Beneux's application in March 1983. App. at 36-64. It argued that granting Beneux's application would adversely affect Port Norris's operations to an extent contrary to the public interest and that Beneux had failed to satisfy the statutory requirements for a grant of unrestricted general commodities authority. Port Norris sought either a complete denial of the application or a bulk restriction. Beneux responded to Port Norris's protest by requesting that the Commission amend Beneux's application to include a restriction against bulk commodities. App. at 65.
In June 1983, the Commission's Review Board 3 granted Beneux's application without any bulk restriction. App. at 66-70. Port Norris appealed, and the Commission, Division 1, affirmed the Review Board's decision. App. at 84. In August 1983, the Commission granted Beneux a certificate of public convenience and necessity to operate as a common carrier transporting general commodities with no bulk restriction. App. at 86-87. Port Norris petitioned this court for review pursuant to 28 U.S.C. Secs. 2321, 2342(5) (1982).
The scope of our review of a Commission order granting a certificate of public convenience and necessity to a motor common carrier is defined by the Motor Carrier Act of 1980, 94 Stat. 793 (1980) () [the MCA], and the Administrative Procedure Act. The MCA requires the Commission to determine whether an applicant has shown that it is "fit, willing, and able to provide the transportation to be authorized by the certificate" and that the service proposed will be "responsive to a public demand or need." 4 49 U.S.C. Secs. 10922(b)(1)(A), (B) (1982). Under the Administrative Procedure Act, the Commission's decision to grant the authority "may not be 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' and must be supported 'by substantial evidence.' " Port Norris Express Co. v. ICC, 746 F.2d 69, 71 (D.C.Cir.1984) (quoting 5 U.S.C. Secs. 706(2)(A), (E) (1982)). The " 'substantial evidence examination looks to whether the record, taken as a whole, contains such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Department of Transportation, Federal Highway Administration v. ICC, 733 F.2d 105, 110 (D.C.Cir.1984) (citations omitted).
The case law unequivocably establishes that under the MCA an applicant for unrestricted general commodities authority has the burden of establishing that it is fit, willing, and able to provide all of the transportation to be authorized by the certificate--including bulk services. In American Trucking Association v. ICC, 659 F.2d 452 (5th Cir.1981), enforced by mandamus, 669 F.2d 957 (5th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 493 (1983) [ATA ], the Fifth Circuit rejected the Commission's decision to eliminate all bulk restrictions from authorities to transport general commodities. 5 In doing so, the court held that an applicant for general commodities authority must demonstrate specifically that it is fit, willing, and able to provide bulk transportation services, ATA, 659 F.2d at 473. In Port Norris Express Co. v. ICC, 687 F.2d 803, 811 (3d Cir.1982) [Port Norris-Dennis ], the Third Circuit adopted the Fifth Circuit's analysis and vacated the Commission's order granting an applicant general commodities authority because the "record ... [could not] support a finding that [the applicant] was willing to carry commodities in bulk." In Port Norris Express Co. v. ICC, 729 F.2d 204, 208 (3d Cir.1984) [Port Norris-Allen ], the Third Circuit stated specifically that the Commission may not issue an unrestricted general commodities certificate "unless there is record evidence of the applicant's present intent and willingness to haul bulk ... [and] record evidence that the applicant has or intends to acquire the necessary equipment."
Recent cases dealing with grants of specific commodities authority have reaffirmed the ATA and Port Norris-Dennis holdings. 6 In Port Norris-Allen, 729 F.2d 204 (3d Cir.1984), Steere Tank Lines, Inc. v. ICC, 736 F.2d 1094 (5th Cir.1984) [Steere-C.D.B.], and Erickson Transport Corp. v. ICC, 737 F.2d 775 (8th Cir.1984) [Erickson-L & L ], the Third, Fifth, and Eighth Circuits, respectively, rejected the Commission's policy of refusing to include bulk restrictions on grants of specific commodities authority. Each court emphasized that the Commission may not grant an applicant bulk authority unless there is substantial evidence that the applicant is fit, willing, and able to provide bulk services. See Port Norris-Allen, 729 F.2d at 208; Steere-C.D.B., 736 F.2d at 1096; Erickson-L & L, 737 F.2d at 778. We recently applied "substantially the same reasoning," Port Norris Express Co. v. ICC, 746 F.2d 69, 73 (D.C.Cir.1984) [Port Norris-D-X ], in holding that the Commission may not grant authority to transport specific commodities in bulk unless the applicant provides evidence of public need for bulk services. 7 In Port Norris-D-X, we rejected "the use of an evidentiary inference to satisfy the clear requirements of the [MCA]." Id. at 72. Although the Commission may make reasonable inferences in determining whether applicants have met the statutory requirements, those inferences must be supported by "direct evidence." Id. at 73. Specifically, where a certificate includes bulk authority, "[s]ome direct evidence on bulk service is required." Id. Absent such evidence, a certificate granting general commodities authority must contain a bulk restriction.
Beneux's application--including the shipper support statements--made no mention of bulk transportation or bulk commodities, nor did it show that it operated any bulk equipment or facilities. The Commission nevertheless determined that Beneux was fit, willing, and able to transport bulk commodities by resorting to inferences drawn from the application and a "review of Commission records." App. at 66. The Commission contends in this appeal that its determinations are supported by the "doctrine of representative evidence." Brief for Respondents at 16. Under that "doctrine," the Commission argues, "there was enough evidence to support a Commission inference ... that Beneux was fit to transport general commodities in bulk." Id. (emphasis added). As we discuss below, we find the Commission's argument unpersuasive because there was not substantial evidence that Beneux was either fit or willing to transport bulk commodities.
Beneux included in its application a list of five certificates that authorized it to transport...
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