Citations
- 380 F. Supp. 744
Full opinion text
MEMORANDUM OPINION
CHARLES R. SCOTT, District Judge.
This is an action by Petroleum Carrier Corporation of Florida (PCC) against the United States of America and the Interstate Commerce Commission (hereinafter referred to as the Commission or the ICC) to set aside an order of the ICC. The case arises under the provisions of Section 205(g) of the Interstate Commerce Act, 49 U.S.C. § 305(g); 28 U.S.C. §§ 1336, 2284, 2321-2325; and Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 702, 704 and 706.
The ICC order which plaintiff seeks to have set aside grants a certificate of public convenience and necessity to Redwing Carriers, Inc. (Redwing), a competitor of plaintiff, permitting Redwing to transport petroleum products and petroleum byproducts in bulk, in tank vehicles, from points in Duval County, Florida, to points in Georgia.
Plaintiff does not attack the substantive finding of the Commission that public convenience and necessity require the new service by Redwing, but rather alleges that the Commission committed procedural error in processing the case under its modified procedure, instead of referring it to an oral hearing before a joint board.
After Redwing filed its application for permit of public convenience and necessity, three protests were filed by competing carriers, including one by PCC. Plaintiff’s protest contained a generalized request for oral hearing. Nevertheless, the Commission set the case for hearing under modified procedure, 49 C.F.R. §§ 1100.45-54 (1973), whereby all evidence is submitted in the form of written verified statements with oral hearing granted only if the Commission finds “material facts in dispute”. 49 C. F.R. § 1100.53.
PCC was dissatisfied with referral of the ease to modified procedure and filed a motion to assign the case for oral hearing before a joint board. It was plaintiff’s contention that the Commission erred in assigning the case to the modified procedure docket since not more than three states were involved and “material facts are in dispute.” The Commission responded that plaintiff’s request for oral hearing would be ruled upon after submission of all verified statements, but stated that “for the present the case will remain on the modified procedure docket” since the “application appears susceptible to handling without oral hearing, or if hearing is later deemed necessary, the issues might be substantially narrowed after the submission of verified statements.”
After Redwing filed its own statement and the verified statements of 16 supporting shippers, plaintiff moved to strike certain of the shippers’ statements and to grant a hearing before a joint board. Again, plaintiff was informed that its motions would be ruled upon after all verified statements were filed.
PCC then filed its verified statement in opposition to Redwing’s application and again requested a joint board hearing. After the filing of all verified statements the Commission issued its order of July 19, 1972. That order, the one plaintiff seeks to liave this Court set aside, finds that no material factual disputes exist so referral to a joint board is unnecessary. The Commission therein found that,
[Tjhere are no material facts in dispute here but rather conclusions to be drawn from the facts presented; that all issues of fact material to a finding of public convenience and necessity have been resolved by the pleadings; and there appears no need for oral hearing or referral to the joint board in order for us to reach a determination of the issue involved.
The order goes on to grant Redwing’s application and to deny PCC’s motions.
In its petition for reconsideration of the Commission decision, PCC again alleged that it was entitled to a hearing before a joint board since it had raised material issues of fact. After consideration of the petitions and reply, the Commission, acting as an appellate division, denied the petitions. Accordingly, Redwing was issued a certificate of public convenience and necessity and has been operating under that authority since May 21, 1973.
Many facts material to the Commission’s determination whether or not to grant a permit of public convenience and necessity to Redwing were not disputed. For example, plaintiff’s virtual monopoly over the Jacksonville-Georgia asphalt service was never challenged, nor was the existence of serious customer complaints about the inadequate service offered by plaintiff ever challenged. Furthermore, it is uncontroverted that substantial evidence of need for more service was presented by the shippers and receivers who filed statements.
Nevertheless, in order to determine whether or not material factual disputes exist, the Court has carefully examined the entire administrative record, including the individual allegations of shippers who claimed a need for additional service in petroleum product transportation from Jacksonville to points in Georgia. The Court also has considered the response of PCC to these allegations. On the basis of this examination it is clear that the verified statements of three shippers, Van Diviere, Trumbull and Schwartz, were in conflict with the verified statement of PCC, and, therefore, factual disputes clearly exist. Furthermore, the applicant, Redwing, recognized the existence of factual disputes when it stated in its rebuttal argument, filed with the ICC on February 14, 1972, that “ . . . there are several disputed is-
sues of fact evident from the record in this proceeding, . . . . ”
In order for PCC to demonstrate that the ICC abused its discretion by failing to refer Redwing’s application to a joint board, it must establish the following four points:
(1) Factual disputes exist. 49 C. F.R. § 1100.53.
(2) The factual disputes are material. Howard Hall Co. v. United States, 332 F.Supp. 1076 (N.D.Ala. 1971); Jones Truck Lines v. United States, 321 F.Supp. 821 (W.D.Ark. 1971); Land-Air Delivery, Inc. v. United States, 327 F.Supp. 808 (D. Kan. 1971); Garrett Freight Lines, Inc. v. United States, 333 F.Supp. 1267 (D.Ida.1971); Manley Transfer, Inc. v. United States, 370 F.Supp. 1216, 1973 F.C.C. ¶ 82407 (D. Kan.1973); Ruan Transport Corp. v. United States, 361 F.Supp. 371 (S.D. Iowa 1973).
(3) A specific statement of the factual disputes was filed with the ICC. 49 C.F.R. § 1100.247(d)(3) and (4); 49 C.F.R. § 1100.53. Manley Transfer Co. v. United States, 370 F.Supp. 1216, 1973 F.C.C. ¶ 82407 (D. Kan.1973); Allied Van Lines Co. v. United States, 303 F. Supp. 742 (C.D. Cal.1969).
(4) This specific statement of factual disputes was timely filed with the ICC. Manley, supra; Ruan, supra; Howard Hall, supra. Assuming the existence of material factual disputes in the data provided the ICC as support for and in opposition to Red-wing’s application for permit of public convenience and necessity, the Court must determine whether or not these disputes were timely raised by PCC, and whether or not they were stated with sufficient specificity to justify reférral of the application to a joint board.
In its initial protest of the application of Redwing Carriers, Inc., filed with the ICC on July 15, 1971, PCC requested an oral hearing. On September 30, 1971, PCC again moved for assignment of the case to a joint board. This motion was renewed on January 31, 1972, when PCC filed its verified statement with the ICC. This was certainly a timely request for oral hearing since it was the first time PCC could reasonably have been expected to know the contents of the verified statements of shippers supporting Redwing’s application and the first opportunity PCC was afforded to respond thereto. Furthermore, a request for an oral hearing is automatically a request for referral to a joint board and, if the request is made when protestant files its verified statement, it is timely filed. Ruan Transport Corp. v. United States, 367 F.Supp. 371 (S.D. Iowa 1973). However, the fact that a timely request for assignment to a joint board has been filed with the ICC does not necessarily mean that the request specifically details material factual disputes so as to require referral to a joint board.
The Court must examine each document filed with the Commission by PCC to determine if it specifically alerted the ICC to the alleged factual disputes. If any document did so and was timely filed, the Commission erred in refusing to refer the case to a joint board for oral hearing.
On five different occasions PCC filed papers with the ICC which, it might be contended, alerted the ICC to the alleged factual disputes: (1) PCC's initial protest filed with the ICC on July 16, 1971; (2) its motion for assignment to a joint board, filed with the ICC on September 30, 1971; (3) its motion to strike certain of the verified statements supporting Redwing, filed with the ICC on January 6, 1972; (4) its own verified statement, filed with the ICC on January 31, 1972; and (5) its motion for reconsideration of the Commission’s order granting the permit to Redwing, filed with the ICC on September 17,1973.
I. PROTEST
In its protest PCC made the following general request:
4. Protestant requests an oral hearing, at which protestant will present one witness whose testimony will require approximately one hour for presentation. The evidence to be presented cannot reasonably be submitted in the form of affidavits for the reasons that it will be necessary to cross-examine applicant and the public witnesses appearing in support of the application concerning lack of adequate service from the standpoint of Protestant’s equipment, authority, time-in-transit, or other factors which might be alleged by Applicant, and to rebut through protestant’s witness any such allegations.
This was followed by the certification statement required in 49 C.F.R. § 1100.-247(d)(4).
Plaintiff cannot successfully contend that this brief request for oral hearing which was contained in its protest was so specific in raising material factual disputes as to require referral to a joint board for oral hearing. PCC alleged that it could not present its evidence in the form of affidavits but offered no specific examples in support of its contention.
II. MOTION FOR ASSIGNMENT
On September 30, 1971, PCC filed a motion for assignment to a joint board. This motion was worded in the most general conclusory terms and did not contain any statements which could be construed to be specific allegations of disputes of material fact. The motion stated:
The operations proposed to be conducted by the applicant involve not more than 3 states, to-wit: Florida and Georgia, and as indicated in this protestant’s written protest and in the written protests of other protestants, material facts are in dispute.
III. MOTION TO STRIKE.
It cannot successfully be argued that the motion to strike alerted the ICC to the alleged factual disputes because PCC’s attack was, at that time, based on alleged procedural defects in the statements rather than on any substantive factual conflicts. Although this motion was timely filed it did not point out any factual disputes with specificity or otherwise.
Accompanying the motion to strike was a motion to assign this application for' hearing before a joint board. PCC moved for a joint board hearing,
upon the ground that the statements of support submitted by applicant are so vague and undetailed that this protestant cannot properly rebut said statements without an opportunity to cross-examine the supporting shipper witnesses.
In the motion PCC failed to show specific facts that were in dispute and specifically what material it would introduce at oral hearing that could not be brought out in its verified statement.
IV. PCC’S VERIFIED STATEMENT
Since material factual disputes existed only as to the allegations of Van Diviere, Schwartz and Trumbull, the Court need only examine the record in relation to these shippers to determine if any disputes were timely and specifically presented to the Commission.
The verified statement of Charles Van Diviere on behalf of Van Diviere Oil Company was filed in the administrative record of the ICC on December 28, 1971. It alleges that Van Diviere Oil Company, which markets petroleum products, is dissatisfied with the delivery service of PCC, and cites an instance of one delivery being four days late in November 1971. In its response, filed with the ICC on January 31, 1972, PCC claims that Van Di viere is supplied by American Oil Company, to which PCC has permanently assigned four trucks. Any delays in delivery to Van Diviere, PCC alleges, are due to American Oil Company action, and not due to negligence on the part of PCC. Thus, it is arguable that a factual dispute exists as to Van Diviere. PCC admits delays in deliveries but claims they are the supplier’s fault and not its own.
The verified statement of Melvin Kruger on behalf of L. E. Schwartz & Son, Inc., was filed in the administrative record of the ICC on December 21, 1971. Schwartz, a roofing contractor, alleges that PCC, which delivers all Schwartz’ asphalt, is often late on deliveries and that PCC has difficulty unloading asphalt from its trucks due to faulty pumps. PCC responded in its verified statement, filed with the ICC on January 31, 1972, that delays in delivery áre due to slowness of Trumbull Asphalt Cqppany, which supplies the asphalt to PCC for delivery to Schwartz and that all carriers of this type of asphalt have difficulty unloading in cold weather. Thus, it is arguable that a factual dispute exists as to Schwartz. PCC admits delays in delivery but claims they are the supplier’s fault, and admits difficulty in unloading asphalt but claims all carriers have the same problem because of the physical properties of asphalt, not because of faulty pumps.
In PCC’s verified statement, filed with the ICC on January 31, 1972, it first presented to the Commission its version of the facts surrounding the allegations of Trumbull Asphalt Company, F. E. Seelbinder on behalf of Trumbull Asphalt Company, in a verified statement filed with the ICC on December 21, 1971, alleged that Trumbull, which processes and markets petroleum based asphalt, had been unable to obtain more than two pieces of equipment at a time from PCC even though it often needed more. PCC responded that sometimes three and sometimes four trucks were assigned exclusively to Trumbull, and at all times more than two trucks were so assigned. PCC further claimed it had never failed to furnish Trumbull all the equipment called for when called for. Thus, a direct conflict in the evidence exists as to Trumbull.
Whether or not PCC’s verified statement alerted the Commission to the existence of factual disputes, there is no doubt that PCC failed to specify the content of the disputes. The PCC response to Trumbull’s allegations was on page 13 of its 15 page verified statement and was not highlighted in any manner or made prominent from the responses to the other shippers’ statements.
On page 14 of its verified statement, filed with the ICC on January 31, 1972, PCC filed a motion to assign for hearing which, in its entirety, read “PCC reasserts its previous motions filed herein to assign this application for hearing before a Joint Board.” This motion di