Roadway Express, Inc. v. United States, Civ. A. No. C 66-451.

• Decision Date: 11 October 1966
• Docket Number: Civ. A. No. C 66-451.
• Parties: ROADWAY EXPRESS, INC., Akron, Ohio, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Northern District of Ohio

263 F. Supp. 154

ROADWAY EXPRESS, INC., Akron, Ohio, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. C 66-451.

United States District Court N. D. Ohio, E. D.

October 11, 1966.

Charles Scanlon, Buckingham, Doolittle & Burroughs, Akron, Ohio, Russell R. Sage, Turney, Major, Markham & Sherfy, Washington, D. C., for plaintiff.

Rex Eames, Eames, Petrillo, Wilcox & Nelson, Detroit, Mich., for intervening plaintiffs.

John H. D. Wigger, Dept. of Justice, Nahum Litt, I. C. C., Washington, D. C., Herbert Baker, James R. Stiverson, Columbus, Ohio, Reynolds & Reynolds, Atlanta, Ga., for defendants.

Before CELEBREZZE, Circuit Judge, CONNELL, Chief District Judge, and THOMAS, District Judge.

PER CURIAM.

Plaintiff Roadway Express, Inc., petitions this court to enjoin, set aside, and annul the order of May 26, 1966 of the Interstate Commerce Commission (though rendered by Division 1, acting as an appellate division, the order is that of the Commission). Exercising authority under Section 210a(a) of the Interstate Commerce Act (49 U.S.C. § 310a (a)) the Commission granted intervening defendant Jack Cole Company's application for temporary authority which has the effect of extending its present routes from its southern terminals to involved Michigan cities.

On June 20, 1966 this court temporarily restrained the defendants United States of America and Interstate Commerce Commission from "issuing notice to Jack Cole Company, pursuant to an order of defendant Interstate Commerce Commission of May 26, 1966, to institute operations authorized by said order of May 26, 1966, in a proceeding entitled "Docket No. MC-73464 (Sub-No. 100 TA) Jack Cole Company, Birmingham, Alabama." A three-judge court, appointed in accordance with 28 U.S.C. § 2325, heard the matter on September 26, 1966. At the conclusion of the oral hearing the case was taken under advisement, including a motion of defendants United States of America and Interstate Commerce Commission to vacate the temporary restraining order and dismiss the complaint; and the motion of intervening defendant Jack Cole Company to dismiss the complaint or in the alternative to grant a summary judgment for defendant.

Plaintiff Roadway Express, Inc., a Delaware corporation, with principal offices in Akron, Ohio, is a motor common carrier, authorized by the Interstate Commerce Commission to transport general commodities between various points in the United States including points in Alabama and Georgia, and Michigan. Intervening as additional plaintiffs are 13 motor common carriers of property certificated by the defendant Interstate Commerce Commission to transport general commodities. Interested as carriers interlining with Jack Cole Company at Detroit, these intervening plaintiffs were party protestants in the proceedings before the Interstate Commerce Commission. They adopt as their own the pleadings filed by plaintiff Roadway Express, Inc. Intervening defendant Jack Cole Company, an Alabama corporation, with offices in Birmingham, Alabama is a motor common carrier of property. It operates under certificates issued by the Commission authorizing the transportation of general commodities from southern terminals located in Alabama to Toledo and Detroit. In addition, Jack Cole serves other points located in Alabama, Georgia, Louisiana, and Mississippi through its wholly-owned subsidiary, Dixie Highway Express, Inc., Jack Cole Company in its answer, and defendants United States of America and Interstate Commerce Commission in their answer, deny the principal allegation of the plaintiff's complaint.

To provide through single line service from its southern terminals, intervening defendant Jack Cole Company, on December 16, 1965, applied to the defendant Interstate Commerce Commission for temporary authority and also for permanent authority to transport general commodities between Detroit, Michigan and Bay City, Michigan (designating routes and intermediate and off route points) and between Toledo, Ohio and Bay City, Michigan (designating routes and intermediate and off route points). Roadway Express, Inc., intervening plaintiffs, and other transportation companies protested Jack Cole Company's request for temporary authority. Applicant Jack Cole Company countered the protests by verified answer. Intervening plaintiffs Dundee Truck Line, Great Lakes Express, and other intervenors then responded to applicant's answer.

On February 21, 1966, the Interstate Commerce Commission, Division 1, denied Jack Cole Company's request for temporary authority. Thereafter on March 22, 1966 applicant Jack Cole Company petitioned for reconsideration. Plaintiff Roadway Express, Inc., and the 13 intervening plaintiff-transportation companies and other motor carriers opposed the petition for reconsideration.

On May 26, 1966, the Interstate Commerce Commission, Division 1, acting as an appellate division, vacated and set aside the order of the Commission Division 1. Determining that "there is an immediate and urgent need for the motor carrier service described in the appendix attached hereto and that there is no carrier service available capable of meeting such need" it ordered, subject to certain condition, "that applicant be, and is hereby granted temporary authority."

Subsequent petitions for reconsideration were filed by plaintiff Roadway Express, Inc., the 13 intervening plaintiffs, and by other transportation companies. These petitions for reconsideration, and requests for a stay of the Commission's order, have been denied.

Requiring first consideration is the jurisdiction of this court to hear and determine plaintiffs' complaint for injunctive relief. Plaintiffs charge that the Commission's order of May 26, 1966 "is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law."

Of several relevant provisions of law particular consideration must be given to three sections: Title 28 U.S.C. § 1336, Section 10 of the Administrative Procedure Act (5 U.S.C. § 1009), and Section 210a(a) of the Interstate Commerce Act (49 U.S.C. § 310a(a)).

These three sections touch each other like sides of a triangle. Title 49 U.S.C. § 310a(a) grants express discretionary power to the Interstate Commerce Commission to grant temporary authority to a motor carrier. This grant of discretionary power is construed to be "agency action" committed by law "to agency discretion", within the meaning of Section 10 of the Administrative Procedure Act (Title 5 U.S.C. § 1009). Section 10 of the Act therefore excludes action under Title 49 U.S.C. § 310a(a) from judicial review under the Administrative Procedure Act because it is discretionary agency action.

The question remains whether judicial review sought by the plaintiff is possible under Title 28 U.S.C. § 1336 which vests jurisdiction in district courts to enjoin orders of the Interstate Commerce Commission "except as otherwise provided by Act of Congress." Falling within this exception, and therefore qualifying the district court's jurisdiction under Section 1336, is Title 49 U.S.C. § 310a(a) which authorizes the Interstate Commerce Commission to grant temporary authority "in its discretion and without hearings or other proceedings."

However, any Commission grant of temporary authority must provide 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. . . ." 49 U.S.C. § 310a(a). In addition, any grant of temporary authority shall be "valid * * * for not more than an aggregate of one hundred and eighty days, and shall create no presumption that corresponding permanent authority shall be granted. . . ." 49 U.S.C. § 310a(a). The language of Title 49 U.S.C. § 310a(a) thus qualifies the Commission's discretionary power to grant temporary authority, and thereby reserves a remainder of the district court's jurisdiction under Title 28 U.S.C. § 1336. Should the Commission, in the exercise of this discretion, abuse that discretion by arbitrary or capricious action, a district court is deemed to retain the equitable power to curb that abuse of discretion.

In exercising its discretion Title 49 U.S.C. § 310a(a) allows the Commission to act "without hearings or other proceedings." Hence, hearings and other adversary administrative procedures contemplated by the Administrative Procedure Act (particularly Title 5 U.S.C. §§ 1006, 1007) are not required and need not be conducted by the Commission. The Commission's action is to be judged factually by the administrative record. A proper exercise of Commission discretion would be established by any evidence in the administrative record which tends to show that the temporary authority provides a 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. . . ." 49 U.S.C. § 310a (a). The substantial evidence necessary to uphold its grant of permanent authority under Section 207 of the Interstate Commerce Act (49 U.S.C. § 307) is not required to support the Commission's grant of temporary authority under Section 210a(a) of the Act (Title 49 U.S.C. § 310a(a)).

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