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Assure Competitive Transportation Inc. v. United States and Interstate Commerce Commission

decided: August 7, 1980.

ASSURE COMPETITIVE TRANSPORTATION, INC., PETITIONER,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, RESPONDENTS, LIBERTY TRUCKING COMPANY, INTERVENORS; WARREN TRANSPORT, INC., PETITIONER, COMMON CARRIER CONFERENCE -- IRREGULAR ROUTE, INTERVENING PETITIONER, V. INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS, LIBERTY TRUCKING COMPANY, INTERVENING RESPONDENT; ASSURE COMPETITIVE TRANSPORTATION, INC., PLAINTIFF-APPELLANT, V. INTERSTATE COMMERCE COMMISSION, ET AL., DEFENDANTS-APPELLEES



Petitions for Review of Orders of the Interstate Commerce Commission. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-C-487 -- Prentice H. Marshall, Judge .

Before Castle, Senior Circuit Judge, Swygert and Sprecher, Circuit Judges.

Author: Swygert

These three consolidated matters arise from an order of the Interstate Commerce Commission granting an application for additional motor common carrier operating authority, and a district court order dismissing an action challenging the jurisdiction of the Commission to issue that and other orders. The issues presented are:

1) Did the district court properly conclude that it lacked subject matter jurisdiction to consider an action challenging the legality of numerous orders of the Commission on the basis that the Commission was illegally constituted?

2) Did the Commission correctly determine that a quorum under the Interstate Commerce Act, 49 U.S.C. § 10306(a), is a majority of an existing Commission rather than a majority of a full complement of eleven Commissioners?

3) Is the Commission illegally constituted as a matter of constitutional law because the President has unreasonably delayed or intentionally declined to appoint eleven Commissioners?

4) Did the Commission, in granting Liberty Trucking Company's application for motor common carrier operating authority, alter the burden of persuasion traditionally required in such cases and if so, was a rule making required?

We affirm the district court's dismissal for lack of subject matter jurisdiction. We conclude further that the Commissioner's interpretation of 49 U.S.C. § 10306(a) was correct and that a quorum of the Commission participated in the challenged decisions. The constitutional challenge to the authority of the Commission must fail because the existing Commission was appointed pursuant to law and the Constitution. Whether the President has failed to exercise a nondiscretionary duty by unreasonably delaying or declining to appoint a full complement of eleven Commissioners is not before us because the President is not a party to this action. Finally, we hold that the Commission did not alter the burden of persuasion traditionally placed on applicants for motor common carrier operating authority.

I

These protracted administrative proceedings began in 1974 when Liberty Trucking Company (Liberty) filed an application for a certificate of public convenience and necessity authorizing it to transport general commodities (with certain exceptions) over regular routes between Chicago and Waterford and Burlington, Wisconsin, and between Burlington and Waterford and Elkhorn, Wisconsin. That application was granted by the Commission's Review Board Number 1 in 1976. On a petition for reconsideration by two of four carriers who had opposed the application, the Commission's Appellate Division 1 reversed the review board and denied the application. Although Liberty's petition for administrative review and for a finding that the proceeding involved an issue of general transportation importance was denied, the Commission on its own motion reopened the proceeding for reconsideration. In October 1978 the entire Commission granted the application. 130 M.C.C. 243 (1978) ("Liberty I ").

Two protestants petitioned for administrative review. In addition, Warren Transport, Inc. ("Warren") among other carriers, and Assure Competitive Transportation ("ACT") and the Common Carrier Conference Irregular Route ("Conference"), among other carrier organizations, petitioned to intervene and for administrative review. The intervenors argued that the Commission had violated the Commission's criteria established in Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936), by modifying the burden of persuasion imposed on already-authorized carriers opposing an application for a certificate of public convenience and necessity. By a decision served on June 11, 1979 the Commission granted leave to intervene but denied the petitions for administrative review. 131 M.C.C. 573 (1979) ("Liberty II "). Warren field a petition for judicial review in the Eighth Circuit which was transferred to this court. Conference was granted leave to intervene.

On June 20, 1979 ACT filed a petition with the Commission seeking to vacate the agency's decision for lack of jurisdiction. ACT pointed out that under 49 U.S.C. § 10301(b), "the Commission is composed of 11 members" and that under 49 U.S.C. § 10306(a), a quorum is defined as a majority of the Commission. ACT argued that at least six members or a majority of an eleven member Commission are required to transact business. Because only five members participated in Liberty II, ACT contended that the decision was void for lack of a quorum. On July 3, 1979 the Commission denied ACT's motion, citing 49 U.S.C. § 10301(e) which provides: "A vacancy in the membership of the Commission does not impair the right of the remaining members to exercise all of the powers of the Commission."*fn1 ACT filed a petition in this court seeking judicial review.

After the Liberty I decision was entered but before it was affirmed on administrative review in Liberty II, ACT filed a complaint in the United States District Court for the Northern District of Illinois seeking a declaratory order that the Commission was illegally constituted in violation of the Constitution and the Interstate Commerce Act, 49 U.S.C. § 10101 et seq., and asking that the Commission be enjoined from acting until "such time as there is a quorum appointed." ACT also requested that all Commission actions since June 30, 1978 be declared unlawful for want of a quorum. In response to a motion by the defendant Commission, the district judge dismissed the complaint for lack of subject matter jurisdiction, stating that under 28 U.S.C. § 2321 the proper method for challenging the legality of Commission actions was by appropriate review proceedings in the court of appeals.

The petitions for review taken from the Liberty II decision and from the Commission's denial of the motion to vacate for lack of jurisdiction as well as an appeal filed by ACT from the district court's order of dismissal were consolidated for purposes of review in this court.

II

We affirm the district court's dismissal of ACT's complaint which alleges that Commission orders since June 1978, when the membership of the Commission fell below six, are nullities as a matter of constitutional and statutory law because those orders were rendered by a Commission of fewer than six members.*fn2 The statutory provision governing judicial review of Commission actions is 28 U.S.C. § 2321(a), which provides:

Except as otherwise provided by an Act of Congress, a proceeding to enjoin or suspend, in whole or in part, a rule, regulation, or order of the Interstate Commerce Commission shall be brought in the court of appeals as provided by and in the manner prescribed in chapter 158 of the title.*fn3

The principal exception to section 2321(a) is 28 U.S.C. § 1336, which vests jurisdiction in the district court in cases relating merely to the payment of money. That exception has been narrowly construed. In Island Creek Coal Sales Co. v. ICC, 561 F.2d 1219 (6th Cir. 1977), the court held that an action challenging the power of the Commission to issue certain orders, although also seeking monetary reparations, was not within the narrow exception for money matters only: "Attacks upon the validity of ICC orders are to be filed in the appropriate court of appeals." 561 F.2d at 1222.

In the instant case, ACT does not claim that the district court has jurisdiction under the special monetary exception in 28 U.S.C. § 1336. Rather, ACT alleges jurisdiction under 28 U.S.C. § 1337(a) which provides: "The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce." We do not agree.

It is well established that a special statute vesting jurisdiction in a particular court cuts off the jurisdiction other courts might otherwise have under a more general statute. See Venner v. Michigan Central R. R. Co., 271 U.S. 127, 46 S. Ct. 444, 70 L. Ed. 868 (1926). The District of Columbia Circuit has stated:

(A)n impressive line of authority supports the . . . proposition that, even where Congress has not expressly conferred exclusive jurisdiction, a special review statute vesting jurisdiction in a particular court cuts off other courts' original jurisdiction in all cases covered by the special statute. See, e. g., Macauley v. Waterman S. S. Corp., 327 U.S. 540, 543-545, (66 S. Ct. 712, 713-714, 90 L. Ed. 839). . . . The Administrative Procedure Act itself provides that "(t)he form of proceeding for judicial review is the special statutory review proceeding relevant ...


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