Refrigerated Transport Co. v. United States

• Citation: 297 F. Supp. 5
• Decision Date: 04 February 1969
• Docket Number: Civ. A. No. 11402.
• Parties: REFRIGERATED TRANSPORT CO., Inc.; Watkins Motor Lines, Inc.; Alterman Transport Lines, Inc.; Belford Trucking Co., Inc.; Clay Hyder Trucking Lines, Inc.; Commercial Carrier Corporation; and Argo Collier Truck Lines Corporation, Plaintiffs, v. UNITED STATES of America and the Interstate Commerce Commission, Defendants, Greenstein Trucking Company, Intervenor.
• Court: U.S. District Court — Northern District of Georgia

297 F. Supp. 5

REFRIGERATED TRANSPORT CO., Inc.; Watkins Motor Lines, Inc.; Alterman Transport Lines, Inc.; Belford Trucking Co., Inc.; Clay Hyder Trucking Lines, Inc.; Commercial Carrier Corporation; and Argo Collier Truck Lines Corporation, Plaintiffs, v. UNITED STATES of America and the Interstate Commerce Commission, Defendants, Greenstein Trucking Company, Intervenor.

Civ. A. No. 11402.

United States District Court N. D. Georgia, Atlanta Division.

February 4, 1969.

Watkins, Daniell, Davis & Serby, Atlanta, Ga., for plaintiffs.

Donald F. Turner, Asst. Atty. Gen., John H. D. Wigger, Dept. of Justice, Washington, D. C., and Charles L. Goodson, U. S. Atty., Atlanta, Ga., for United States.

Robert W. Ginnane, Gen. Counsel, Steven Kazen, Atty., ICC, Washington, D. C., for Interstate Commerce Commission.

Martin Sack, Jr., Jacksonville, Fla., for Greenstein Trucking Co.

Before BELL, Circuit Judge, and HOOPER and EDENFIELD, District Judges.

EDENFIELD, District Judge.

On June 10, 1963, Greenstein Trucking Company (hereinafter referred to as Greenstein) filed an application with the Interstate Commerce Commission, pursuant to 49 U.S.C. § 307, for a certificate of public convenience and necessity authorizing it to transport certain meats, refrigerated food, and dairy products from St. Paul, Minnesota, Chicago, and points in Wisconsin, to points in Florida, Georgia, Tennessee, South Carolina and Alabama.

The application as filed by Greenstein proposed three restrictions to be annexed to the certificate. These restrictions would have required that shipments originating in St. Paul be limited to those which were to subsequently stop at one or more points in Wisconsin to complete loading, and required that shipments from Chicago be limited to those which had originated at one or more points in Wisconsin and which only stopped in Chicago to complete loading. The third proposed restriction provided that stops in Alabama, Tennessee and South Carolina would be limited to shipments which were to be partially unloaded there, the remainder having final destinations in Florida and/or Georgia. The application, including these proposed restrictions, was published in the Federal Register. Protests were filed by seven railroads and 20 major motor carriers, including all of the plaintiffs in this action, save Commercial Carrier Corporation, which, according to defendants, owned complainant Clay Hyder Trucking Lines.

On October 18, 1963, notice of a hearing on the application was given to all of the complainants, and on December 19, 1963 the hearing was held before an Examiner for the Commission. At the hearing, five motor carriers, including two of the protesting carriers in the instant action, Alterman Transport Lines and Clay Hyder Trucking Lines, appeared. On July 24, 1964, the Examiner filed his report recommending that the Interstate Commerce Commission deny the application, for reasons no longer relevant here. Greenstein excepted to this report. Thereafter, on December 28, 1964, Operating Rights Review Board No. 3, designated by the Commission to review the Examiner's findings, filed its report on Greenstein's exceptions. The Review Board adopted the Examiner's statement of facts, reversed his recommendation, and granted the application. 106 M.C.C. 291 (1964). In granting the application, however, the three restrictions contained in Greenstein's original application and published in the Federal Register were deleted, on the ground that the multiple pickup service restriction would serve no useful purpose and was administratively undesirable. The Board also concluded that a "mixed load" restriction, limiting the authority to mixed loads of meat and dairy products, would best protect existing carriers. 106 M.C.C. at 295. These restrictions were added in lieu of those proposed by Greenstein without any further notice or hearing.

Three complainants, including plaintiffs Alterman Transport Lines and Belford Trucking Company, filed petitions for reconsideration of this order. Belford's petition was filed on January 21, 1965, asking for leave to intervene, for reconsideration of the decision, and/or for a further hearing. Plaintiff Alterman's petition was filed on February 2, 1965. The plaintiffs contended, in short, that the grant proposed substantially exceeded the authority initially sought by Greenstein, included matter not covered by the original notice, would result in substantial detriment to them, and that no provision for notice or republication in the Federal Register was made in the order. By a Commission order of April 29, 1965, served May 6, 1965, the plaintiffs' petitions for reconsideration were denied and the Review Board's decision affirmed. The Commission found, in substance, that Belford had not shown sufficient cause to justify intervention, and that the findings of the Review Board were in accordance with the evidence and the applicable law. On October 12, 1965, the Commission issued Greenstein a certificate of public convenience and necessity, containing the substituted "mixed load" restriction. This is the first of two Commission rulings at issue in this action. Docket No. MC-107818.

Nothing else transpired until August 7, 1967,¹ when plaintiffs filed a joint petition before the Commission asking that the matter be reopened for further hearing. The plaintiffs contended that the "mixed load" restriction was ambiguous, that Greenstein was violating the restrictions imposed and conducting unlawful operations under the certificate of convenience and necessity, and that the authority granted was much broader than that applied for and noticed in the Federal Register. Plaintiffs also noted that in a proceeding seeking similar authority for other territories, Greenstein was cross-examined about his operations under the certificate in question here and that Greenstein virtually admitted that it was making no bona fide effort to comply with the mixed load restriction and was, in fact, transporting solid truckloads of meat with only token amounts of dairy products. This activity was alleged to be in violation of authority, see, e.g., Barsh Truck Lines, Inc., Extension-Bartow, Florida, 92 M.C.C. 254, 255; Refrigerated Transport, Inc., et al. v. United States et al., 214 F.Supp. 536 (N.D. Ga., 1963), and to the detriment of movants. Plaintiffs urged that the Commission, upon further hearing, modify Greenstein's certificate, to grant no authority greater than that initially sought by Greenstein's application, limiting service to partial loading and unloading at the origin and destination points involved. In an order dated November 3, 1967 and served November 9, 1967, the Commission, per curiam, denied petitioners' motion to intervene and reopen further hearings. On or about December 3, 1967, plaintiffs sought judicial review of the Commission's decision.

Action is pursuant to 28 U.S.C. §§ 2284, 2321-2325 to set aside the order of the Commission entered in 1965, affirming the Review Board's grant of authority, subject to "mixed load" restrictions, and its 1967 decision denying leave to intervene and reopen hearings.

Plaintiffs allege several errors in the Commission's findings. First, they contend that there was no rational basis for a grant of broadened authority, as it exceeded that for which proof of need was shown and that which was applied for and published in the Federal Register. Next, plaintiffs argue that the "mixed load" restriction is ambiguous and must be replaced with measurable standards. They repeat their allegations that Greenstein has made no bona fide effort to comply with the mixed loads restriction or to adhere to any standards laid down by the Commission, and that Greenstein considers any volume of traffic ...