Wright Trucking, Inc. v. United States

• Decision Date: 03 April 1975
• Docket Number: Civ. A. No. 73-1445-C.
• Parties: WRIGHT TRUCKING, INC., Plaintiff, v. UNITED STATES of America and the Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — District of Massachusetts

403 F. Supp. 119

WRIGHT TRUCKING, INC., Plaintiff, v. UNITED STATES of America and the Interstate Commerce Commission, Defendants.

Civ. A. No. 73-1445-C.

United States District Court, D. Massachusetts.

April 3, 1975.

Leonard A. Jaskiewicz, Ira G. Megdal, Grove, Jaskiewicz & Gilliam, Washington, D. C., of counsel, Francis E. Barrett, Jr., Hingham, Mass., for plaintiff.

Kenneth Kaplan, I. C. C., Washington, D. C., James Gabriel, U. S. Atty., for defendants.

J. William Cain, Jr., and Robert S. Burk, Washington, D. C., for intervening parties, St. Johnsbury Trucking Co., Inc. and others.

Before CAMPBELL, Circuit Judge, CAFFREY, Chief Judge and TAURO, District Judge.

MEMORANDUM AND INTERLOCUTORY ORDER

LEVIN H. CAMPBELL, Circuit Judge.

This is an action seeking to set aside orders of the Interstate Commerce Commission denying, in large part, a joint application requesting authority for Wright Trucking, Inc. (Wright) to purchase a portion of the operating rights held by Bonded Trucking & Rigging, Inc. (Bonded). See 49 U.S.C. § 5. The rights in question are for carrying general commodities on irregular routes between Lowell, Massachusetts, and points within 10 miles thereof on the one hand, and points in southern New Hampshire and Vermont on the other.¹

The ICC denied the Wright-Bonded application because it found that Bonded's operating rights had become "dormant." Dormancy is a concept the Commission developed in the course of its statutory oversight² of the transfer of operating rights. The underlying premise is that if a selling carrier's activity has become minimal or nonexistent, the area's shippers are presumed already to be receiving adequate service from other carriers, who will have adjusted their own operations to meet these needs. See Gregg Cartage & Storage Co. v. United States, 316 U.S. 74, 83, 62 S.Ct. 932, 86 L.Ed. 1283 (1942). A purchaser of dormant rights is seen as aggressively seeking to expand the vendor's relinquished business, C & H Transportation Co. — Purchase (Portion) — Ferguson Trucking Co., 93 M.C.C. 741 (1964), thus inciting a struggle among carriers in the area with damage either to "the public interest or to intervening or protesting carriers who conducted operations during the interruption of said services," Arrow Transp. Co. v. United States, 300 F.Supp. 813, 818 (D.R.I. 1969).

While dormancy is not a term found either in the statute or in Commission regulations, it is the sort of standard the Commission is authorized to adopt, having plenary responsibility for administering the national transportation policy, and for determining what factors will promote or retard the public interest. McLean Trucking Co. v. United States, 321 U.S. 67, 79-88, 64 S.Ct. 370, 88 L.Ed. 544 (1944).

Still, the determination that Bonded's rights were dormant must be supported by the administrative record. The Commission's stated test for dormancy when considering irregular-route carriers like Bonded is whether

"it has rendered substantial service to a representative number of points within its authorized territory in order to support the conclusion that its operations have been substantial and continuous."

The New Dixie Lines, Inc. — Control — Jocie Motors Lines, Inc., 75 M.C.C. 659, 666 (1958). Although this formulation allows considerable administrative discretion in its application, Miami Transportation Co. — Purchase — Richard Strothman, 97 M.C.C. 600, 608 (1964), we have had difficulty perceiving how the Commission reached the conclusion that Bonded's rights were dormant. The data submitted with the Bonded-Wright application indicated that in the six month period prior to the execution of their sales agreement³ it could be estimated that Bonded was handling approximately 15 shipments per day with an average daily total weight of about 30,300 pounds.⁴ Obviously Bonded was conducting some shipping operations prior to its negotiations with Wright, and it is not readily apparent that these were so de minimis as to require the conclusion that they were not "substantial and continuous."

It is apparently true that Bonded carried little traffic from much of its territory, and the statistical abstract of its operations shows but a few shipments to or from a large portion of southern Vermont. The opinion of Review Board No. 5, which originally denied the application, seems to reason that these deficiencies are enough conclusively to establish the dormancy of Bonded's rights. But the Commission has elsewhere said that evaluation of whether a given amount of shipments are substantial requires consideration of such factors as

"whether the rights involve general or specified commodities, the character of the area served in terms of industry and population, the number of carriers involved in similar service, whether the rights are radial or non-radial, and whether the financial and material capabilities of the carrier have been utilized as far as practicable."

Miami Transportation Co., supra at 608.

Here there has been no interpretive statement by the Commission explaining how, taking into account these factors, Bonded's operations were insubstantial. The only discussion at all is that of Review Board No. 5, which is at best conclusory and at worst fatally flawed by reliance upon an absence of evidence which the Commission later permitted applicants to cure. After this supplementary evidence was accepted, the Commission's Division 3, acting as an Appellate Division, purported to consider de novo the merits of the application. The opinion explaining its Order — which because of its de novo character should perhaps be regarded as the operant administrative decision for purposes of this action — recited only that Division 3 was "in general agreement with the conclusions reached regarding the issue of dormancy in the report and order of Review Board Number 5 . . . ." It may be, of course, that both Commission decisions were fully justified. However, without some reasoned evaluation of Bonded's shipping data, we are at a loss adequately to understand either.

In an effort to remedy this ellipsis, we compared the Bonded data with that of carriers in other Commission decisions considering the issue of dormancy, but this too left us unsure what conclusions were to be drawn. Bonded's figures appear unquestionably less "substantial" than those presented to the Commission in New Dixie, see 75 M.C.C. at 667, where contentions of dormancy were rejected. But they also seem to indicate significantly more activity than that presented in several cases where the ICC ruled that rights had become dormant. See, e. g., Weather Bros. Transfer Co. — Purchase — Charles F. Johnson and George A. Harris, 109 M.C.C. 528 (1970); Red Arrow Freight Lines,...