Squaw Transit Company v. United States

• Decision Date: 24 October 1975
• Docket Number: Civ. A. No. 75-C-82.
• Citation: 402 F. Supp. 1278
• Parties: The SQUAW TRANSIT COMPANY, Plaintiff, v. UNITED STATES of America, and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

402 F. Supp. 1278

The SQUAW TRANSIT COMPANY, Plaintiff, v. UNITED STATES of America, and Interstate Commerce Commission, Defendants.

Civ. A. No. 75-C-82.

United States District Court, N. D. Oklahoma.

October 24, 1975.

Mickey D. Wilson, Tulsa, Okl., Sayers, Scurlock, Binion & Brackett, Fort Worth, Tex., for plaintiff, Squaw Transit Co. Nathan G. Graham, U. S. Atty., Tulsa, Okl. (Thomas E. Kauper, Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., on brief), for defendant, United States.

James T. Proctor, Atty., I.C.C., Washington, D. C., and Peter A. Fitzpatrick, Atty., I.C.C., Washington, D. C. (Fritz R. Kahn, Gen. Counsel, I.C.C., Washington, D. C., on brief), for defendant, I.C. C.

Before HOLLOWAY, Circuit Judge, BARROW, Chief District Judge, and COOK, District Judge.

OPINION

BARROW, Chief Judge.

A statutory three-judge court was convened in the instant litigation, pursuant to 28 U.S.C. §§ 1336, 2325 and 2284, to review the decision of the Interstate Commerce Commission in connection with the denial of the application of Squaw Transit Company (hereinafter referred to as "Squaw") filed pursuant to 49 CFR 1065, and the subsequent denial of its Petition for Reconsideration.

Squaw is an Oklahoma corporation and operates as a motor common carrier in interstate and foreign commerce transporting various commodities, and pipeline commodities, over numerous irregular routes to, from and between various states in the United States. Such operations are carried on by virtue of Certificate MC-119176 and Subs as issued by the ICC. The principal office of Squaw is in Tulsa, Oklahoma. Squaw additionally maintains and operates equipment and terminal facilities at Houston, Texas and North Lima, Ohio.

Squaw, prior to the enactment of certain rules and regulations by the ICC, on February 25, 1974, performed a transportation service for the public by "tacking" or joining certain of its authorities, which have been referred to in the vernacular of the trade as "gateways".

On February 25, 1974, the Commission adopted rules and regulations effecting the tacking of irregular route motor common carrier operating authorities. In general, these new rules provide a procedure by which "gateways" could be eliminated in operations provided by joinder of separate irregular route motor common carrier certificates. 49 CFR 1065, et seq.

Two types of applications were provided for in the new rules. The type which involved Squaw required the filing of a formal application (called an OP-OR-9) for the elimination of gateways in irregular route operations in those cases where the most direct highway distance between the points to be served is less than 80% of the highway distance between such points over the carrier's authorized routing through the gateway.

In order that 49 CFR 1065 be complied with, the application had to be filed by June 4, 1974. A completed filing, in accordance with the rules, included the application; the designated fee; copies of the carrier's appropriate tariff provisions and certificates; a verified statement in support; a traffic abstract, embracing shipment transported through the gateway over the two year period preceding November 23, 1973, or if the carrier relied on certificated authorities issued to it after November 23, 1973, but pending prior thereto, shipper verified statements in support of the application.

Squaw tendered its application to the ICC as reflected by a letter from Mr. Clayte Binion, its attorney, dated June 3, 1974, as well as a Cashier's Check in the amount of $350.00 A copy of the application reveals that in Appendix I thereto, Squaw attempted to show that it sought to operate as a common carrier by motor vehicle, over irregular routes, in the transportation of certain commodities designated therein, between points in Michigan, Illinois, Indiana and Ohio, on the one hand, and, on the other, points in Arkansas, Louisiana, Mississippi, Alabama, Georgia, and Florida. It is stated that the purpose of the application was to eliminate gateways in Oklahoma, Arkansas and Texas. In the letter transmitting the application, the attorney stated that he understood that such application called for the submission of evidence by applicant at the time the application was filed and that he was in the process of preparing it and that it would be promptly filed when prepared. He requested that the Commission call him collect if this was not satisfactory.

On August 26, 1975, the attorney for Squaw received two form letters from the ICC. One letter requested a copy of the application be served on the appropriate State Board having regulatory jurisdiction in the State of Florida; and the other requested that an appropriate tariff establishing that the proposed services were offered on November 23, 1973, be submitted and that copies of all pertinent authority be sent.

It appears that these requests were not complied with until October 7, 1974, as revealed by the Exhibits to the file.

On November 14, 1974, the ICC entered its order dismissing the application of Squaw, with the finding that the "applicant has failed to adduce evidence in the proceeding as required by 49 CFR 1065."

By instrument and pleading dated December 13, 1975, Squaw filed its Petition for Reconsideration of Order of Commissioner Robert L. Murphy, and Petition for Extraordinary Relief pursuant to Rule 102, General Rules of Practice. Said instrument encompassed the following deocuments:

1. The Petition;

2. Appendix I, which is an affidavit of Counsel for Squaw stating reasons for non-compliance with the time requisites in the OP-OR-9 application.

3. Verified statement of E. W. Dalrymple, Vice President of Squaw, in support of the Gateway Elimination Application with supporting evidence: a) copy of prior irregular route certificate, b) balance sheet and income statement of the applicant for the latest available time period, c) list of Squaw Transit Company Terminal and Office Facilities, d) application to eliminate gateways in Oklahoma, Arkansas and Texas, e) summary of representative shipments handled within the involved territory, f) abstract of bills of Squaw for services rendered for supporting shippers.

4. Supporting shippers' statements.

Thereafter, on December 31, 1974, the Commission denied the Petition for Reconsideration on grounds that no sufficient or proper cause was shown for vacating its order of November 8, 1974, which dismissed the Squaw application for failure to adduce evidence as required by 49 CFR 1065. The order stated that Squaw still had available the recourse of filing a regular application for direct authority in which it could prove that public convenience and necessity require such service.

On January 19, 1975, Squaw filed its Petition for Stay of the Effective date of the Order of Division 1, acting as an Appellate Division, and for Extraordinary Relief Pursuant to Rule 102, General Rules of Practice.

The Commission denied Squaw's Petition for Stay and Extraordinary Relief on January 30, 1975, on the grounds that their prior order was entered in accordance with applicable law, and, thereby, the proceeding was rendered administratively final. The present litigation was commenced in this Court on February 28, 1975. After the convening of a statutory three-judge court, the matter was set down for hearing before the panel and on July 1, 1975, oral argument was heard and the matter was taken under advisement.

Squaw is not asking this Court to annul, set aside and enjoin the gateway rules and regulations themselves, nor is it asking the Court to direct the Commission to grant the OP-OR-9 gateway elimination application. The only relief Squaw seeks is for the Court to set aside the Commission's previous orders and direct the Commission by remand to consider the application and evidence submitted in support thereof.

Plaintiff contends the refusal of the Commission to accept tendered evidence (although late) and consider the application constituted an abuse of discretion and amounted to arbitrary and capricious action for the following reasons:

1. The Commission has in the past relaxed or modified its rules in other cases, and failure to accept the petition and tendered evidence is inconsistent with prior Commission actions in similar cases.

2. The Commission accepted the OP-OR-9 application and filing fee, accepted supplemental information leading Squaw's counsel to believe it could submit supporting evidence, but when such evidence was submitted, the same was erroneously rejected.

3. Plaintiff alleges on information and belief the Commission has in cases, governed by the same rules and regulations as in this case, allowed other applicant motor carriers to file evidence in such application after the required due date, which constitutes unfair and unjust treatment to plaintiff and denial of equal protection of the law.

4. The failure of the Commission to receive the tendered evidence and dismissing application deprives plaintiff of a valuable property right without due process of law.

5. The reasons given by counsel for Squaw for the late filing of evidence are substantial and constitute good cause for the receipt of tendered evidence.

6. The Commission abused its discretion in failing to grant the request of Squaw for receipt of tendered evidence, as Squaw complied with all applicable rules and regulations and the same were summarily denied by Commission without any basis in law or fact.

The Commission, on the other hand, contends that the only issue to be resolved is whether the Commission acted within its discretion in dismissing the gateway application which was admittedly filed without any supporting evidence as required by the rules. As to the allegations of Squaw that other applicants, similarly situated, were not dismissed because of late filing, the Commission in its Reply Brief of June 16, 1975, stated that an informed rebuttal regarding plaintiff's...