Tidewater Express Lines, Inc. v. United States

• Decision Date: 26 March 1968
• Docket Number: Civ. A. No. 16549,18442.
• Citation: 281 F. Supp. 995
• Parties: TIDEWATER EXPRESS LINES, INC., W. T. Cowan, Inc., Davidson Transfer & Storage Co., B & P Motor Express, Inc., Pooles Drayage Company, and Wooleyhan Transport Co. v. UNITED STATES of America and Interstate Commerce Commission, Rockville Chamber of Commerce, Mayor and City Council of Rockville, Md., Sears, Roebuck & Co., Intervenors. TIDEWATER EXPRESS LINES, INC., W. T. Cowan, Inc., Wooleyhan Transport Co., and Branch Motor Express Co. v. UNITED STATES of America and Interstate Commerce Commission.
• Court: U.S. District Court — District of Maryland

281 F. Supp. 995

TIDEWATER EXPRESS LINES, INC., W. T. Cowan, Inc., Davidson Transfer & Storage Co., B & P Motor Express, Inc., Pooles Drayage Company, and Wooleyhan Transport Co. v. UNITED STATES of America and Interstate Commerce Commission, Rockville Chamber of Commerce, Mayor and City Council of Rockville, Md., Sears, Roebuck & Co., Intervenors.

TIDEWATER EXPRESS LINES, INC., W. T. Cowan, Inc., Wooleyhan Transport Co., and Branch Motor Express Co. v. UNITED STATES of America and Interstate Commerce Commission.

Civ. A. Nos. 16549, 18442.

United States District Court D. Maryland.

March 26, 1968.

James J. Doherty, Friedman & Goodman, Baltimore, Md., and William B. Dulany, Dulany & Davis, Westminster, for plaintiffs.

Stephen H. Sachs, U. S. Atty., Baltimore, Md., Donald F. Turner, Asst. Atty. Gen., and John H. D. Wigger, Dept. of Justice, Washington, D. C., for the United States.

Robert W. Ginnane, Gen. Counsel, Washington, D. C., and Manny H. Smith, Washington, D. C., for Interstate Commerce Commission.

Alan F. Wohlstetter and Ernest H. Land, Denning & Wohlstetter, Washington, D. C., and George W. Shadoan, Rockville, Md., for intervening defendants, Rockville Chamber of Commerce and Mayor and Council of Rockville.

Russell S. Bernhard, Washington, D. C., and Francis J. Ford, Rockville, Md., of counsel, Macleay, Lynch, Bernhard & Gregg, Washington, D. C., for intervening defendant, Sears, Roebuck and Co.

Before SOBELOFF, Circuit Judge, and WATKINS and NORTHROP, District Judges.

WATKINS, District Judge.

These are two civil actions brought by seven motor carriers¹ to annul two reports and orders of the Commission in Ex Parte No. MC-7, Washington, D. C. Commercial Zone, redefining the commercial zone of Washington, D. C. Civil Action No. 16549 seeks to set aside (1) the report and order of the Commission, Operating Rights Review Board Number 1, of February 5, 1965 (served February 17), 98 M.C.C. 106, redefining the commercial zone so as to include the city of Rockville, Maryland, and its environs and (2) an order of the Commission, Division 1, Acting as an Appellate Division, of May 18, 1965 (served May 26) which denied several petitions for reconsideration, including one embracing a motion for removal of the exemption from regulation as provided by section 203(b) (8) of the Interstate Commerce Act, 49 U.S.C. section 303(b) (8). Civil Action No. 18442 is directed against (1) the subsequent report and order of the Commission, Operating Rights Review Board Number 2, of December 16, 1966 (served December 30), 103 M.C.C. 256, in the same proceeding, redefining the Washington, D. C. commercial zone so as to add 0.4 square mile to the northwest corner of the zone as redefined in the prior report of February 5, 1965, 98 M.C.C. 106, and (2) an order of the Commission, Division 1, Acting as an Appellate Division, of May 2, 1967 (served May 10), denying protestants' petition for reconsideration.

Three issues are presented by plaintiffs:

1. Were the Commission's conclusions and findings which redefined the Washington, D. C. commercial zone so as to include Rockville, Maryland and its environs and a 0.4 square mile area adjacent thereto arbitrary, capricious or an abuse of discretion?

The Commission's actions in these two cases were, and are conceded to be, exercises of rule making, as to which the scope of review is not whether the findings and conclusions are supported by substantial evidence, but whether they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. section 706(2) (A). See California Citizens Band Association v. United States, 9 Cir. 1967, 375 F.2d 43, cert. den. 1967, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112 (FCC); American Trucking Associations v. United States, N.D.Ala.1951, 101 F.Supp. 710, affd. 1953, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (ICC).

The concession by plaintiffs' attorney at oral argument that this was an "extremely close case" would probably be sufficient in and of itself to justify the conclusion that the actions of the Commission were not arbitrary, capricious or an abuse of discretion. In addition, however, a review of the entire record fully supports the findings made and the conclusions expressed by the Commission, which comply with the guide lines set forth in George A. Rehman Co. v. United States, E.D.S.C. 1955, 133 F. Supp. 668.

2. Was the denial by the Commission of an oral hearing such an abuse of discretion in a rule-making proceeding as to render its decision arbitrary and capricious?

It is well settled that the rulemaking power of the Commission in redefining a commercial zone does not require the holding of an adjudicatory hearing. George A. Rehman Co., supra, 133 F.Supp. at pages 673-674; Highland Farms Dairy v. Agnew, E.D.Va. 1936, 16 F.Supp. 575, 586-587, affd. 1937, 300 U.S. 608, 57 S.Ct. 549, 81 L.Ed. 835; California Citizens Band v. United States, supra; Air Lines Pilots Association v. Onesada, 2 Cir. 1960, 276 F.2d 892, 895-896, cert. den. 1961, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254; reh. den. 1961, 368 U.S. 870, 82 S.Ct. 27, 7 L.Ed.2d 71.

Plaintiffs were given notice of the proposed rule-making of September 18, 1964, and July 1, 1966, by publication in the Federal Register of September 23, 1964 (29 F.R. 13216) and of July 7, 1966 (31 F.R. 9308). They were given the opportunity to...