563 F2d 899 Jones Truck Lines Inc v. Interstate Commerce Commission

563 F.2d 899

JONES TRUCK LINES, INC., and Superior Forwarding Company,
Inc., Petitioners,
v.
INTERSTATE COMMERCE COMMISSION and United States of America,
Respondents,
and
Main Line Hauling Co. Inc., Intervenor.

No. 77-1010.

United States Court of Appeals,
Eighth Circuit.

Submitted Sept. 16, 1977.
Decided Oct. 12, 1977.

Gregory M. Rebman, St. Louis, Mo., argued, filed appearance and appendix and brief for respondents.

Jeffrey A. Knoll (argued, on brief and supplemental appendix), Alan J. Thiemann, Attys., I.C.C., Washington, D. C., Ron M. Landsman (on brief), and Barry Grossman (on brief), Attys., Dept. of Justice, App. Section, Antitrust Div., Washington, D. C., filed appearances for respondents; John Shenefield, Acting Asst. Atty. Gen., Mark L. Evans (on supplemental appendix), Gen. Counsel, Frederick W. Read, III (on supplemental appendix), Associate Gen. Council, on brief for respondents.

William H. Shawn, Grave, Jackiewicz, Gilliam and Cobert, Washington, D. C., argued, filed appearance and brief for intervenor.

Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and STEPHENSON, Circuit Judge.

PER CURIAM.

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1

Jones Truck Lines, Inc., and Superior Forwarding Company, Inc., competing carriers, in a timely petition for review seek to have this court set aside the orders of the Commission in Main Line Hauling Co., Inc., Extension Memphis, Tennessee, MC 120181 (Sub-No. 6), which orders were served on June 4 and November 12, 1976. Such orders granted Main Line Hauling Co. Inc., a motor carrier certificate to transport general commodities between St. Louis, Missouri, and Memphis, Tennessee, a service that it had previously performed under the mistaken belief that it was authorized to do so.

2

By order of the Commission, the matter was assigned for consideration under its modified procedure, fixing time for filing verified statements in support of and in opposition to the certificate application. Such statements were filed. Review Board No. 3 considered the evidence submitted, discussed it in detail and granted the application. Petitions for reconsideration were filed by Jones Truck Lines, Inc., and Superior Forwarding Company, Inc. Division 1 of the Commission, acting as an appellate division, summarily determined that the findings of Review Board No. 3 were in accord with the evidence and applicable law and denied the petition for review. This constitutes the final action of the Commission upon the application.

3

Our jurisdiction is based upon 28 U.S.C. §§ 2321 and 2342, as amended.

4

Petitioners urge that they are entitled to review for the following reasons:

5

1. The final order of the appellate division does not adequately discuss petitioners' exceptions to the decision of the Review Board.

6

2. The record does not satisfy the standard set out in 49 U.S.C. § 307(a) for the granting of a certificate.

7

3. The record does not support the finding of fitness of the applicant.

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8

4. The Commission did not give proper consideration to the adequacy of the existing service.

9

We find all such contentions lack merit and affirm the Commission's granting of the certificate for the reasons hereinafter set out.

10

The Review Board made detailed findings on the critical issues. The Commission's appellate division determined that the Review Board's decision is supported by substantial evidence and is in accord with the applicable law. Under such circumstances, there was no need for the appellate division to re-cover the ground covered by the Review Board in its decision. National Trailer Convoy, Inc., v. United States, 293 F.Supp. 630, 633 (N.D.Okl.1968), aff'd, 394 U.S. 849, 89 S.Ct. 1631, 23 L.Ed.2d 32 (1969); Deioma Trucking Co. v. United States, 233 F.Supp. 782 (N.D.Ohio 1964); see United States v. Pierce Auto Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821 (1946); Watkins Motor Lines, Inc. v. United States, 243 F.Supp. 436, 443 (D.Neb.1965).

11

In Warren Transport, Inc. v. United States, 525 F.2d 148, 151 (8th Cir. 1975), this court held:

12

In this circuit a petition for review of a Commission's order will be denied on a summary basis when the order is based on the evidence and supported by a rational judgment of the Commission.

13

We reaffirmed this approach in Midwest Coast Transport, Inc., v. Interstate Commerce Commission, 536 F.2d 256, 259 (8th Cir. 1976), and in Burlington Northern, Inc. v. United States, 561 F.2d 167 (8th Cir. 1977).

14

A careful review of the record satisfies us that there is substantial evidence to support the Commission's determination that the standards set out in 49 U.S.C. § 307(a) have been met. There is also substantial evidentiary support for the determination that the applicant's violation of its authority was not intentional and did not render it unfit for the service applied for. The record likewise supports a finding of inadequacy of existing service. Such findings are not contrary to the applicable law and are not clearly erroneous.

15

No error or abuse of discretion has been established. The record supports the granting of the certificate. The petition for review is denied.