Ross Exp., Inc. v. U.S., No. 75--1289

• Decision Date: 10 February 1976
• Docket Number: No. 75--1289
• Citation: 529 F.2d 679
• Parties: ROSS EXPRESS, INC., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 679

529 F.2d 679

ROSS EXPRESS, INC., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission Respondents.

No. 75--1289.

United states Court of Appeals First Circuit.

Argued Dec. 1, 1975.

Decided Feb. 10, 1976.

Grenville Clark, III, Manchester, N.H., with whom McLane, Graf, Greene, Raulerson & Middleton, Manchester, N.H., was on brief, for petitioner.

Lloyd John Osborn, Atty., Interstate Commerce Commission, Washington, D.C., with whom Fritz R. Kahn, Gen. Counsel, Thomas E. Kauper, Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondents.

Richardson & Tyler, Kenneth B. Williams, Boston, Mass., Barrett & Barrett, and John F. O'Donnell, Milton, Mass., on brief for interveners.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

This is a petition for review of a final order of the Interstate Commerce Commission denying the application of petitioner, Ross Express, Inc. ('Ross'), for a certificate of public convenience and necessity under § 207(a) of the Interstate Commerce Act, 49 U.S.C. § 307(a).

On September 4, 1973, Ross filed an application with the Commission seeking authorization to operate in interstate commerce as a common carrier by motor vehicle for the transportation of general commodities ¹ between all points within the state of New Hampshire. ² The application was protested by several existing common carriers who contended that present service was adequate and that certification of another carrier would be disruptive of the already highly competitive trucking market in New Hampshire.

The Commission considered the application under its modified procedure, 49 C.F.R. § 1100.45 et seq., which provides for the submission of evidence in affidavit form with oral examination of witnesses being limited to instances of material factual disputes. On the basis of the affidavits submitted by Ross (and its supporting witnesses) and by the protestants, the Commission's Review Board No. 2 decided, on October 17, 1974, that Ross had failed to establish that the present or future public convenience and necessity required the proposed operation. Ross petitioned for reconsideration, and, on June 12, 1975, the Commission affirmed the Review Board's decision. This appeal followed.

At the threshold we note that an applicant for a certificate has the burden of establishing that the proposed service is or will be required by the public convenience and necessity. Alton Railroad Co. v. United States, 315 U.S. 15, 25, 62 S.Ct. 432, 86 L.Ed. 586 (1942); Tri-State Motor Transit Co. v. United States, 369 F.Supp. 1242, 1244 (W.D.Mo.1973); Quickie Transport Co. v. United States, 169 F.Supp. 826, 829 (D.Minn.), aff'd mem., 361 U.S. 36, 80 S.Ct. 140, 4 L.Ed.2d 111 (1959).

The scope of our review of Commission decisions concerning certification is quite narrow, viz. 'whether the action of the Commission is supported by 'substantial evidence' . . ..' Illinois Central Railroad Co. v. Norfolk & Western Railway Co., 385 U.S. 57, 66, 87 S.Ct. 255, 260, 17 L.Ed.2d 162 (1966). See also Warren Transport, Inc. v. United States, 525 F.2d 148 (8th Cir. 1975); Nationwide Carriers, Inc. v. United States, 380 F.Supp. 1132, 1134 (D.Minn.1974); M. & M. Transportation Co. v. United States,128 F.Supp. 296, 302 (D.Mass.), aff'd mem., 350 U.S. 857, 76 S.Ct. 102, 100 L.Ed. 762 (1955). Congress has delegated to the Commission the authority to make the complex decision as to certification vel non, and the Commission is to draw on its wisdom and experience in making that decision. McLean Trucking Co. v. United States, 321 U.S. 67, 87--88, 64 S.Ct. 370, 88 L.Ed. 544 (1944). See also United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 536, 66 S.Ct. 687, 90 L.Ed. 821 (1946). We deliberately set forth these principles which delineate the Commission's function and our own on these matters, because this is the first case to arise in this circuit under the recently enacted statute providing for review of Commission decisions by the courts of appeals rather than by three judge district courts as formerly. Pub.L. No. 93--584, § 5 (Jan. 2, 1975), amending 28 U.S.C. § 2321. See Warren Transport, Inc. v. United States, supra.

In an attempt to make clear to applicants what kind of evidence should be adduced to make possible intelligent evaluation of an application for a certificate, the Commission, in a 1967 decision, provided the following guidance:

'(S)hippers and consignees supporting an application for the transportation of property are asked to 'identify clearly the commodities they ship or receive, the points to or from which their traffic moves, the volume of freight they would tender to applicant, the transportation services now used for moving their traffic, and any deficiencies in existing services.' This is the minimum showing expected of any applicant seeking a grant of motor carrier authority.' John Novak Contract Carrier Application, 103 M.C.C. 555, 557 (1967).

Ross contends strenuously on this appeal that the criteria enunciated in Novak ought not to be applied here since they have been discredited by subsequent judicial action. In support of this contention Ross cites only one case, Twin City Freight, Inc. v. United States, 360 F.Supp. 709 (D.Minn.1972). The Twin City case however, does not represent judicial disapproval of the Novak standards, but simply indicates that they need not be met in a case where there is other substantial evidence of the existence of a public need for an applicant's service. Id. at 712--13. Twin City in no way suggests that the Novak guidelines are not ordinarily just and intelligent means for furnishing the Commission with the information it requires to act in accordance with its statutory mandate. ³ Several courts have explicity or implicitly endorsed the Novak guidelines, see, e.g., Midwest Coast Transport, Inc. v. United States, 391 F.Supp. 1209, 1213--14 (D.S.D.1975); Artus Trucking Co., Inc. v. Interstate Commerce Commission, 377 F.Supp. 1224, 1230--31 (E.D.N.Y.1974); Yellow Forwarding Co. v. Interstate Commerce Commission, 369 F.Supp. 1040, 1046 (D.Kan.1973); Richard Dahn, Inc. v. Interstate Commerce Commission, 335 F.Supp. 337, 339 (D.N.J.1971...