Superior Trucking Company v. United States

• Decision Date: 03 June 1969
• Docket Number: No. 12407.,12407.
• Citation: 302 F. Supp. 257
• Parties: SUPERIOR TRUCKING COMPANY, Inc., a Georgia corporation, Atlanta, Georgia, Home Transportation Company, Inc., a Georgia corporation, Atlanta, Georgia, Moss Trucking Company, Inc., Charlotte, North Carolina v. UNITED STATES of America; Interstate Commerce Commission Equipment Transport, Inc. (Intervenor).
• Court: U.S. District Court — Northern District of Georgia

302 F. Supp. 257

SUPERIOR TRUCKING COMPANY, Inc., a Georgia corporation, Atlanta, Georgia, Home Transportation Company, Inc., a Georgia corporation, Atlanta, Georgia, Moss Trucking Company, Inc., Charlotte, North Carolina v. UNITED STATES of America; Interstate Commerce Commission Equipment Transport, Inc. (Intervenor).

No. 12407.

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

June 3, 1969.

Guy H. Postell, Frank D. Hall, Atlanta, Ga., Robert E. Born, Marietta, Ga., for plaintiff.

Slaton Clemmons, Asst. U. S. Atty., Atlanta, Ga., Richard W. McLaren, Asst. Atty. Gen., John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., for the United States.

Robert W. Ginnane, Gen. Counsel, Steven Kazan and Philip W. Getts, ICC, Washington, D. C., for ICC.

Hansell, Post, Brandon & Dorsey, Atlanta, Ga., and Grove, Jaskiewicz & Gilliam, Washington, D. C., for intervenor.

Before MORGAN, Circuit Judge, and EDENFIELD and ALBERT J. HENDERSON, Jr., District Judges.

EDENFIELD, District Judge:

Plaintiffs in this action are carriers seeking to enjoin, set aside, and annul orders of the Interstate Commerce Commission (hereinafter referred to as the ICC or the Commission) granting temporary authority to defendant-intervenor Equipment Transport to transport steel over irregular routes from points in South Carolina to all states east of the Mississippi, including Louisiana.

Plaintiffs Superior Trucking and Home Transportation are Georgia corporations and plaintiff Moss Trucking is a North Carolina corporation, all of whom transport steel over single and interline service within the area now served by Equipment Transport under its temporary authority. Prior to receipt of temporary authority, Equipment Transport's predecessor, Heavy Duty Haulers, had been operating for some time under the incorrect assumption that it had the authority to transport steel to the points now served under its temporary authority. The ICC interpreted Heavy Duty's operating authority to exclude the transport of steel and issued a cease-and-desist order prohibiting the continued transport of that commodity. Heavy Duty Haulers, Inc. Investigation of Operations, 99 M.C.C. 578. Heavy Duty Haulers obtained a temporary restraining order pendente lite, thus staying the effect of the cease-and-desist order pending review. During the period of review, Heavy Duty continued to ship steel. While the matter was pending before a United States district court in South Carolina, Equipment Transport acquired Heavy Duty Haulers. After the district court upheld the Commission's cease-and-desist order, Heavy Duty Haulers, Inc. v. United States, 293 F.Supp. 879 (D.S.C., 1968), Equipment Transport obtained another temporary restraining order pending a hearing on a motion for a stay pending further Commission action. The motion for a stay was denied November 21, 1968, Heavy Duty Haulers, Inc. v. United States, 293 F.Supp. 887 (D.S.C., 1968), and the Commission's order became final.

On November 12, 1968, shortly before the order became final, Equipment Transport filed its application for the temporary authority, and included statements of support from thirteen shippers. Notice of their application was published in the Federal Register on November 22, 1968, and protests were filed with the ICC by several carriers, including plaintiffs. Subsequently, three of the supporting shippers submitted additional detailed letters. On January 6, 1969, the Temporary Authorities Board of the Commission approved Equipment Transport's application for temporary authority finding that there was an immediate and urgent need for the motor carrier service and that no carrier was available to meet the need. On January 21, 1969, plaintiffs filed a petition to stay the effective date of the Board's order until their petitions for reconsideration of the January 6, 1969 order, then in preparation, could be acted upon by the ICC. On January 27, 1969, the Commission, through Commissioner Murphy, denied the stay without prejudice to filing of the petitions for reconsideration, all of which were subsequently filed by January 30, 1969. On January 30, plaintiffs sought and obtained from this Court, sitting as a single judge, an ex parte temporary restraining order as to the Commission's grant of temporary authority. On February 11, 1969, Equipment Transport filed its motions for leave to intervene and to dissolve this Court's temporary restraining order, which were granted after a hearing at which several supporting shippers testified. By an order served February 25, 1969, the ICC reinstituted the effective date of their original order granting temporary authority, this Court having dissolved its restraining order. On February 17, 1969, plaintiffs pursued their administrative remedies by filing a petition with the Commission requesting an investigation, denial of the temporary authority, and a cease-and-desist order against Equipment Transport based upon the alleged "long history of unlawful operations" by Equipment Transport. By an order of April 4, all of the plaintiffs' petitions were denied by the Commission, acting as an Appellate Division. The parties are in agreement that the plaintiffs have exhausted their administrative remedies and that this case is ripe for review. This Court, convened as a three-judge court, held a hearing on this case April 16.

While the legal path leading up to this point may seem long and winding, the issue before us is clear. The sole question is whether, under proper standards, the Commission's grant of temporary operating authority to Equipment Transport to ship steel in the area in question, is supportable on judicial review.¹ Plaintiffs urge that the Commission's grant of temporary authority can only be supported on review by a finding of substantial evidence in the record. In addition, they contend that the Commission acted arbitrarily and capriciously by ignoring its own regulations, disregarding Equipment Transport's past unlawful operations, and violating a clear statutory directive.

I. ADEQUATE EVIDENCE IN THE RECORD TO SUPPORT ICC ORDER

The standard of review of temporary authority orders has caused a great deal of judicial consternation. A triad of statutes apply in making the determination of the proper scope of review. First, § 210a(a) of the Transportation Act, § 310a(a) of Title 49, provides, in relevant part, that:

"(a) To enable the provision of 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, the Commission may, in its discretion and without hearings or other proceedings, grant temporary authority for such service by a common carrier or a contract carrier by motor vehicle, as the case may be." (Emphasis added.)

Second, § 10 of the Administrative Procedure Act, 5 U.S.C. § 701(a), which sets out those administrative situations subject to judicial review, precludes review of action committed to agency discretion. As it states:

"(a) This chapter applies, according to the provisions thereof, except to the extent that —

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law."

Last, 28 U.S.C. § 1336 seems to confer jurisdiction on courts to review any orders of the Commission, by providing that:

"(a) Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission."

It is clear that the phrase "except as otherwise provided by Act of Congress" does not refer to § 10 of the Administrative Procedure Act, but rather was "inserted because of similar cases of which the courts of appeals are given jurisdiction." Reviser's Note to § 1336.

Faced with these seemingly conflicting statutes, some courts have held that they are without power to review the Commission's decisions on temporary authority questions. They reason that § 10 of the Administrative Procedure Act precludes judicial review of decisions committed, as are temporary authority decisions under § 310a, to agency discretion. See, e.g., J-T Transport Co. v. United States, 191 F.Supp. 593 (W.D. Mo., 1961); Union Cartage Company v. United States, 244 F.Supp. 1005 (D.Mass., 1965). However, even those cases might permit judicial review of any action by the Commission outside its jurisdiction. As the Court in J-T Transport stated:

"So long as Division 1 of the ICC did not exceed its jurisdiction, its reason for `revoking', i.e. its denial of J-T's application for temporary authority, is not subject to judicial review for an error either of fact or law which induced it to reach that conclusion." 191 F.Supp. at 600.

Despite this line of cases, it is generally accepted today that because of the grant of jurisdiction under 28 U.S.C. § 1336, Hussey v. United States, 271 F. Supp. 650 (N.D.Cal., 1967) and the resultant equitable power left to the district courts, even over temporary authority orders, Roadway Express, Inc. v. United States, 263 F.Supp. 154 (N.D. Ohio, 1966) the federal district court in a case such as ours, may exercise judicial review. Three "I" Truck Lines, Inc. v. Interstate Commerce Commission, 246 F.Supp. 410 (N.D.Iowa, 1965). Indeed, the Government and the Commission do not dispute the Court's power of judicial review here. As they state in their joint brief, "Plaintiffs argue at some length that Commission temporary authority decisions are subject to judicial review. * * * With this we do not quarrel." (Defendant's Brief, at pp. 3-4.)

While the Court will exercise judicial review, our scope of review is limited. Plaintiffs cite no authority, nor do we know of any, to support their proposition that the Commission's temporary authority order must be supported by substantial evidence to be upheld. As one court put it, in a closely related context:

"* * * All of

...