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07/29/77 Union Mechling Corporation v. the United States of

July 29, 1977

UNION MECHLING CORPORATION, ET AL., PETITIONERS

v.

THE UNITED STATES OF AMERICA AND THE INTERSTATE COMMERCE COMMISSION, RESPONDENTS OHIO BARGE LINE, INC. UNITED



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

STATES STEEL CORPORATION SECURITY BARGE LINE, INC., INTERVENORS 1977.CDC.165

Petition for Review of an Order of the Interstate Commerce Commission.

APPELLATE PANEL:

Bazelon, Chief Judge, and Robinson and Robb, Circuit Judges. Opinion filed by Circuit Judge Robb. Concurring Opinion filed by Chief Judge Bazelon. Separate Opinion concurring in part and dissenting in part filed by Circuit Judge Robinson.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBB

Several barge operating companies petition for review of an order of the Interstate Commerce Commission . The challenged order permits Ohio Barge Lines to provide barge service to several Chicago area steel mills belonging to OBL's parent corporation, United States Steel. The petitioners, common carriers serving the same steel mills, object to the increased competition which will result from the Commission's order.

The petitioners attack the order on four grounds. They contend first that the Commission erred in not holding hearings to determine whether the order would result in a violation of 49 U.S.C. §§ 5(14)-5(16) (1970). (These sections were added to the Interstate Commerce Act by the Panama Canal Act of 1912 and will be referred to throughout the remainder of this opinion as "The Panama Canal Act"). The petitioners also contend that the Commission erred in not following its own precedents; in making arbitrary findings unsupported by the record; and in not reopening the record to consider new evidence proffered by the petitioners. Concluding that none of petitioners' contentions warrants reversal we affirm. We shall consider each of petitioners' contentions in turn.

A. PANAMA CANAL ACT HEARINGS

We turn first to the petitioners' argument that the ICC abused its discretion in not, on its own initiative, holding hearings to determine whether the contested permit would result in violations of the Panama Canal Act. That Act mandates that no company shall be permitted to operate rail and water carriers which may compete with each other. *fn1 The statute permits the Commission to conduct hearings to determine whether such competition may arise. The hearings may be conducted either upon application of any carrier or upon the Commission's own motion. 49 U.S.C. § 5(15) (1970). *fn2 The administrative law judge who heard this case declined to conduct such hearings on his own motion, but invited the petitioners to apply for such a hearing as a separate proceeding. The petitioners have never done so.

The petitioners nevertheless contend that the ICC should have convened hearings on its own motion. The petitioners reason as follows: United States Steel controls both OBL and a railroad which serves the same steel mills OBL will serve under its permit, so that OBL's operation under the permit may violate the Panama Canal Act. If there is such a violation OBL's application does not meet a major prerequisite to the issuance of a permit; i. e., that the issuance be "consistent with the public interest and the national transportation policy . . . ." See 49 U.S.C. § 909(g) (1970). In order to make a finding of consistency with the public interest, the petitioners argue, the Commission must investigate the potential violation of the Panama Canal Act.

We find the petitioners' argument unpersuasive for several reasons.

First, provided that an agency has considered all the relevant factors, "An agency's decision to refrain from an investigation . . . is generally unreviewable . . . ." Kixmiller v. S.E.C., 160 U.S. App. D.C. 375, 379, 492 F.2d 641, 645 (1974). The Administrative Procedure Act exempts from judicial review agency decisions which, like this one, are "committed to agency discretion by law." Id., n.27; 5 U.S.C. § 701(a)(2) (1970). And in considering a provision of the Interstate Commerce Act almost identical to the one at issue in this proceeding, the Supreme Court flatly stated:

Whether the Commission should make an investigation of a § 13a(1) discontinuance is of course within its discretion, a matter which is not reviewable.

City of Chicago v. United States, 396 U.S. 162, 165, 24 L. Ed. 2d 340, 90 S. Ct. 309 (1969) [emphasis supplied]. *fn3 We conclude that the Commission's refusal to conduct an investigation in this case is similarly unreviewable.

Of course, in order to have its decision escape review, the Commission must actually exercise its discretion. If an agency simply ignores issues whose relevance to the public interest is obvious, the agency's decision may be reversed. Michigan Consolidated Gas Co. v. F.P.C., 108 U.S. App. D.C. 409, 431, 283 F.2d 204, 226 (1960), cert. denied, 364 U.S. 913, 81 S. Ct. 276, 5 L. Ed. 2d 227 (1960).

In the present case, however, the Commission did not simply ignore the Panama Canal Act, but squarely confronted it. That the Commission's treatment of this issue is somewhat cursory does not change our conclusion. We do not judge the Commission's orders like entries in an essay contest. Rather:

If satisfied that the agency has taken a hard look at the issues with the use of reasons and standards, the court will uphold its findings, though of less than ideal clarity, if the agency's path may reasonably be discerned . . . .

Greater Boston Television Corp. v. F.C.C., 143 U.S. App. D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 29 L. ...


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