Provisioners Frozen Exp., Inc. v. I. C. C.

• Decision Date: 30 June 1976
• Docket Number: No. 75-2335,75-2335
• Parties: PROVISIONERS FROZEN EXPRESS, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1303

536 F.2d 1303

PROVISIONERS FROZEN EXPRESS, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America Respondents.

No. 75-2335.

United States Court of Appeals, Ninth Circuit.

June 30, 1976.

James T. Johnson (argued), Seattle, Wash., for petitioner.

Walter H. Walker, III (argued), the ICC, Washington, D. C., for respondent.

Edward T. Lyons, Jr. (argued), Jones, Meiklejohn, Kehl & Lyons, Denver, Colo., and Lon Rodney Kump (argued), Richards, Bird & Kump, Salt Lake City, Utah, for intervenors.

OPINION

Before MERRILL and WRIGHT, Circuit Judges, and CRARY, District Judge. ^*

PER CURIAM:

This petition for review is from orders of the Interstate Commerce Commission (Commission) denying two applications by Provisioners Frozen Express, Inc. (Provisioners) for extensions of its permit MC 117588. The applications sought Certificates of public convenience and necessity authorizing operations as a motor vehicle common carrier of specified food items in named western states.

The principal stockholders and directors of petitioner are L. R. Pollart and his wife. Mr. Pollart, the president, has been in the business of transportation of various properties by motor vehicle for hire since 1958.

The first of the two extensions was sought by application, Sub. 15, filed July 27, 1970. The second, Sub. 17, was filed January 22, 1971. These applications were consolidated for hearing before the Hearing Examiner, now known as the Administrative Law Judge (ALJ). Evidentiary hearings were held in December, 1971, and on April 8, 1972, the ALJ issued an order in which he found a need for the proposed services applied for but recommended the Certificate of Authority to Provisioners be limited to three years by reason of the questioned "fitness" of Provisioners.

Review Board No. 2 of the Commission, on August 9, 1972, adopted the findings and conclusions of the ALJ with minor modifications not here relevant. Pursuant to petitions for reconsideration by several protestors, intervenors in the instant review, Division 1 of the Commission, acting as an Appellate Division and considering the existing record, reopened the proceedings for reconsideration by order of July 30, 1973. On May 31, 1974, the Commission, Division 1, issued a report and order, served June 10, 1974, which denied the extensions applied for, ruling that Provisioners had failed to show that it was "fit", willing and able to properly perform the proposed services or to conform to the requirements of the Interstate Commerce Act or the Commission's rules and regulations promulgated thereunder.

Provisioners, on August 19, 1974, filed a petition for reconsideration of that order. The Commission, Division 1, denied that petition by an order dated September 27, 1974, served October 7, 1974, on the grounds the report and order of May 31, 1974, were in accordance with the evidence and applicable law. Thereupon that order denying the applications became administratively final under the provisions of 49 C.F.R. 1100.101. That regulation also provides that successive petitions upon substantially the same grounds will not be entertained.

Petitioner did not seek judicial review of the September, 1974, order but filed another petition on December 11, 1974, requesting further hearing which was denied on February 7, 1975, on the grounds that applicant failed to indicate what evidence it would tender which would warrant a different result than reached by the Appellate Division, why such evidence was not previously available and that no sufficient cause appeared for reopening for further consideration.

Yet another petition was filed by Provisioners on March 14, 1975, for reopening of the proceedings for the purpose of considering additional evidence, urging that the compliance report of the Bureau of Operations had then been completed and showed petitioner to be in "substantial compliance" and that Provisioners had "other evidence to introduce which could not have been introduced at the time of the initial hearing and which had substantial bearing upon applicant's fitness." It should be noted that the compliance report evidenced some 15 violations by petitioner.

The Commission refused to entertain the petition and rejected it on the grounds (1) the prior petition for further hearing had been properly denied, (2) the proceeding was not the proper subject for further petition, and (3) no sufficient or proper cause appeared for reopening for further hearing. This order, dated April 22, 1975, was served upon Provisioners April 24, 1975.

The instant petition for review was filed June 19, 1975, well beyond the 60-day statutory period following entry of the agency's final order on September 27, 1974, provided for in Title 28, U.S.C. §§ 2342(5), 2344 and 2321(a).

It is to be noted that Public Law 95-584 was amended in 1975 by adding paragraph (5) to Section 2342, Title 28, U.S.C. Under that amendment, the 60-day statute of limitations period became applicable to all final orders of the Interstate Commerce Commission on March 1, 1975. See "Effective date of 1975 Amendment" under "Historical and revision notes," U.S.C.A. However, this amendment does not aid Provisioners in the instant proceedings.

The Court concludes that the rejection and refusal to entertain the petition of March 14, 1975, to reopen for further hearing, did not create a new final order which would give the Court jurisdiction to review some five years of proceedings in this matter. To hold otherwise would allow for the review of the Commission's action without restriction as to time by merely filing successive petitions to reopen for further hearing. It appears,...