Wilkett v. I.C.C.
| Decision Date | 24 June 1983 |
| Docket Number | No. 82-1373,82-1373 |
| Citation | 710 F.2d 861 |
| Parties | James WILKETT, d/b/a Wilkett Trucking Company, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Interstate Commerce commission.
John J. McMackin, Jr., Washington, D.C., for petitioner.
Colleen J. Bombardier, Atty., ICC, Washington, D.C., with whom John Broadley, Gen. Counsel, and Lawrence H. Richmond, Deputy Associate Gen. Counsel, ICC, John J. Powers, III and George Edelstein, Attys., U.S. Dept. of Justice, Washington, D.C., were on the joint brief for respondents. Kathleen M. Dollar, Atty., I.C.C., and Robert B. Nicholson, Atty., U.S. Dep't of Justice, Washington, D.C., also entered appearances for respondents.
Before EDWARDS, Circuit Judge, and McGOWAN and MacKINNON, Senior Circuit Judges.
Opinion for the Court PER CURIAM.
I.
Wilkett Trucking (the Company) began operations in 1975 and received its first Interstate Commerce Commission (Commission) license in 1978. The Company is currently authorized to transport coal from mines in four Oklahoma counties to facilities in eight Texas counties. Although the business is organized as a sole-proprietorship, it has been a Wilkett family operated enterprise throughout.
In March, 1981, the Company applied to the Commission for new, expanded authority to transport coal from all points in Oklahoma to any point in Texas. The Commission ordered a hearing and directed its Office of Consumer Protection to present facts regarding the proprietor's fitness (James Wilkett). The fitness issue arose because on February 12, 1981, Wilkett was convicted of conspiracy to distribute a controlled substance (dilaudid) in violation of 21 U.S.C. Sec. 846 (1976). 1
At the Commission hearing eight witnesses testified in favor of granting the expanded authority. Their testimony established that Wilkett Trucking was a well-run, highly regarded business which served its customers well. Testimony also revealed that the Company had made conscientious efforts to comply with Commission rules by hiring a compliance consultant and by instituting new internal recordkeeping and administrative procedures. The Office of Consumer Protection introduced only a certified copy of Wilkett's judgment and commitment order. No witness testified in opposition to the grant of authority. Nevertheless the Administrative Law Judge concluded that the proprietor's unfitness, as evidenced by the judgment of conviction, could not be separated from the overall fitness of the company and, therefore, he denied the application. James Wilkett, d/b/a Wilkett Trucking Co., No. MC-121794 (Sept. 22, 1981). (Hereinafter cited as Wilkett I ).
Wilkett Trucking appealed the decision to Division I of the Commission. The Division adopted the facts as found by the Administrative Law Judge, but reached a different conclusion. The Division found that the applicant, i.e., the Company, was fit and that the proposed expanded service was responsive to public need and would serve a useful public service. Citing Commission precedent, the Division concluded that past willful misconduct was not per se a bar to the grant of authority and focused its inquiry upon the business conduct of Wilkett Trucking. The Division found no evidence of disregard for trucking laws and regulations. Recognizing that its duty is to protect the public from misconduct in the trucking industry and not to levy additional punishment upon individuals, the Division concluded that the expanded authority should be granted. However, due to the unique circumstances the Division limited the grant of authority to two years subject to review upon expiration. James Wilkett, d/b/a Wilkett Trucking Co., No. MC- 121794 (Dec. 2, 1981). (Hereinafter cited as Wilkett II ).
The Commission Office of Compliance and Consumer Assistance (formerly the Office of Consumer Protection) petitioned the full Commission for review of the Division's grant of authority. In its petition the Office informed the Commission that on November 25, 1981, James Wilkett was convicted in Oklahoma state court of second degree murder and sentenced to fifteen years imprisonment. 2 Based upon this new evidence the Commission granted the petition for review and reversed the decision by Division I. Finding that the proprietor's fitness could not be separated from that of the Company, the Commission concluded that Wilkett's convictions demonstrated a disregard for the law indicative of one who is unfit to hold a Commission authorization. James Wilkett, d/b/a Wilkett Trucking Co., No. MC-121794 (Feb. 23, 1982). (Hereinafter cited as Wilkett III ).
Wilkett filed an appeal with this court. The Commission moved for and was granted remand of the case for the purpose of reconsideration. Upon reconsideration the Commission reached the same conclusion--authority denied. Although it recognized that Wilkett is incarcerated and "does not exercise complete dominion over the operations of Wilkett Trucking," the Commission reaffirmed its earlier conclusion that James Wilkett and the Company are inseparable. James Wilkett, d/b/a Wilkett Trucking Co., No. MC-121794 (Jan. 18, 1983). (Hereinafter cited as Wilkett IV ).
Wilkett challenges the Commission's denial of additional authority.
II.
The Motor Carrier provisions of the Interstate Commerce Act, 49 U.S.C. Sec. 10922(b)(1) (Supp. V 1981), empower the Commission to grant authority for motor carrier operations "if it finds (1) that the applicant is 'fit, willing, and able properly to perform the service proposed'; and (2) that the service proposed 'is or will be required by the present or future public convenience and necessity.' " Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). 3 Judicial review of the Commission decisions is under the arbitrary and capricious standard. The court must review the agency's decision to determine that it is based upon a consideration of relevant factors and does not evidence a clear error of judgment. Bowman, supra.
Reviewing this Commission decision, we recognize that this is a unique case. In this instance the Commission was called upon to assess fitness where there was no record of company misdeeds; rather, fitness was at issue only because the sole-proprietor had been convicted of nontransportation related crimes. Notwithstanding the fact that the grant of authority will be issued to the Company, the Commission focused solely upon the fitness of the individual proprietor, James Wilkett. Such an inquiry is misdirected. While the proprietor's fitness may be relevant, the primary focus should be upon the Company's record of operations. In this instance, the record reveals and the Commission acknowledges that since commencing operations in 1978, Wilkett Trucking has never been cited for violation of Commission rules or regulations. The Company has demonstrated its commitment to continued lawful service by employing a compliance consultant (a former Commission regional director) to monitor Company practices and recordkeeping. There is no record evidence to suggest that the company would operate unlawfully in the future. Nevertheless the Commission concluded that the "genuine risk of future noncompliance" with trucking regulations outweighed the "applicant's assurances that he will conduct his operations lawfully." Wilkett IV, supra, at 3. The Commission based its conclusion that the Company was unfit solely upon its view that James Wilkett's convictions were indicative of a predisposition on the part of the Company to violate trucking statutes and regulations. That conclusion is unreasonable.
The Commission's duty is to protect the public from carrier misconduct by issuing licenses only to carriers who are found to be "fit." 4 The fitness of Wilkett Trucking, the carrier, and James Wilkett, the individual, are severable. The opinion for Division I of the Commission reflects the proper focus in this case. The Division stated:
[A]pplicant's misconduct has not been shown to relate in anyway to his existing or proposed trucking operations and cannot be considered flagrant and persistent disregard of transportation related laws or regulations. It is also clear...
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