On petition for review of an order of the Interstate Commerce Commission, the Court of Appeals, Wisdom, Circuit Judge, held that: (1) where it was grant of temporary authority which was sought, the Commission was not obliged to give reason for its reversal of decision of the Motor Carrier Board, and (2) where admittedly protestants were inadvertently omitted from service list of decision to grant temporary authority, failure was caused by clerical error which was inadvertent, minor and remediable, and in view of policy of agency, which had in past extended appeal period when parties were not given notice of decision, mistake did not require reversal or remand.
Affirmed, and stay vacated.
Gerald D. Colvin, Jr., Birmingham, Ala., Donald B. Morrison, Jackson, Miss., for petitioners.
James C. Turner, I.C.C., H. Glenn Scammel, James P. Tuite, Atty., Robert Lewis Thompson, Appellate Section, Antitrust Div., Dept. of Justice, Washington, D. C., for respondents.
Elliott Bunce, Arlington, Va., for intervenor Ryder Truck Lines, Inc.
Petition for Review of an Order of the Interstate Commerce Commission.
Before Wisdom, Politz and Sam D. Johnson, Circuit Judges.
WISDOM, Circuit Judge:
This appeal is from a decision of the Interstate Commerce Commission approving an application for temporary authority· to operate as a motor carrier. We hold that the Commission's decision meets the judicial standard applicable to Commission action granting temporary authority of a motor carrier to operate.
On August 1 GFA and two other protestants filed a petition for review with this Court. They also asked for injunctive relief. 1 The Court issued a temporary injunction requiring cessation of temporary operations pending disposition of the appeal. It denied Ryder's petition for reconsideration of this order and motion to require bond.
The ICC and Ryder state that the reason for granting temporary authority should be apparent. Statements supporting the application were submitted by 224 shippers, many located in the states Ryder seeks to serve. The shippers listed six types of inadequacy, including service delays and excessive transit time, poor or unreliable service, failure to obtain pick-up service, lost or damaged goods, the unavailability of protective heater service for freezable products, and the unavailability of needed equipment. ICC regulations allow a grant of temporary authority for single-line service "only when it is clearly established that the carriers providing multi-line service are not capable of, or have failed in, meeting the reasonable immediate and urgent needs of shippers or receivers between the points or territories and in respect to the commodity or commodities involved. 49 C.F.R. § 1131.4(b)(4). The statements from the 224 shippers provide sufficient support for the ICC's determination that the shippers' "reasonable immediate and urgent" needs are not being met by Ryder and that single-line service is therefore necessary.
GFA asks us to follow a D.C. Circuit opinion remanding a case because of inadequate support for the agency's decision. Barrett Mobile Home Transport v. I. C. C., D.C.Cir.1977, 185 U.S.App.D.C. 283, 567 F.2d 150. That case involved an application for temporary authority to operate in eight states. No supporting documents were filed for operation in three of the states, and there were substantive deficiencies in most of the 22 statements filed: "[M]ost of the statements contained only generalized expressions of discontent with the quality and timeliness of other carriers' performances." Id. 185 U.S.App.D.C. at 285, 567 F.2d at 152. The supporting statements here are more numerous and more specific.
GFA also complains that the Board based its decision on supporting statements that were nine months to one year old. The Supreme Court in Bowman Transportation Co. v. Arkansas-Best Freight, 419 U.S. 281, refused to remand because of delay despite a five year period between evidentiary hearings and the Commission's decision. It commented that "we have always been loath to require that factfinding begin anew merely because of delay on proceedings of such magnitude and complexity," id. at 294, and held that reopening the record was proper only in "exceptional circumstances" id. at 295-96. Admittedly, that case involved an application for permanent authority to conduct general commodities operation. But its principles of deference to administrative procedures and the desirability of finality are relevant here. Moreover, the delay here was reasonable. The case did not reach the Commission until after the preliminary decisions were made by an ICC staff office and by the Motor Carrier Board. Protests and replies to protests were filed at each stage of the proceeding. Had these steps been bypassed, the protestants could attack the Commission's decision as contrary to its regulations and violative of due process. GFA has given us no reason to believe that the supporting statements are no longer accurate.
Finally, GFA contends that it was not given proper notice of the ICC's decision to grant temporary authority. The ICC admits that the protestants were inadvertently omitted from the decision's service list. GFA did receive actual notice of the decision, and filed a timely petition for reconsideration in late July 1979. The other protestants had actual notice by August 3, the date they filed for review here. They could have joined GFA's petition to the ICC. Although the 30 day appeal period had run, the agency has in the past extended the time period when parties were not given notice of a decision.2 See East Texas Motor Freight Lines v. United States, 5 Cir. 1979, 593 F.2d 691, 693-94. In East Texas Motor Freight interested parties were not given direct notice of an ICC decision. When they informed the agency of this omission and filed motions for reconsideration, it extended the time period for administrative review. On appeal of the denial of the motions for reconsideration, this Court held: "The procedural irregularity . . is so minor and the explanation [clerical error] is so plausible, that we can discern no reason to vindicate appellants grievances. Admittedly, procedural defaults may taint administrative proceedings that remand would he necessary in order to preserve substantive rights and to protect the integrity of the administrative process. This case, however, does not present such egregious circumstances." Id. at 694.
Here, as in East Texas Motor Freight, we have a failure to give direct notice to interested parties. Again the failure was caused by clerical error. This inadvertent, minor, and remediable mistake does not warrant reversal or remand of this case.
Because the contentions of GFA and the other protestants have no merit, the ICC's decision is AFFIRMED and the stay issued by the Court is VACATED.
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GFA asks for injunctive relief against these operations because they
supposedly violate this Court,s injunction. One grant of authority was
made for supplemental motor carrier service in Alabama necessitated by
extensive hurricane damage. This authority expired on December 21,
1979, and there is no evidence of continued operations. The other
grant of authority was required because another carrier, P.C. White,
Inc., ceased operations in the area. GFA has petitioned the ICC to
revoke this grant of authority. Any attack in this Court must await
exhaustion of administrative remedies.
1 In subsequent proceedings the ICC gave Ryder authority to operate
in parts of Alabama and Mississippi. These grants were made under an
ICC rule eliminating notification to "competing carriers and other
interested parties" when a carrier files an application for emergency
temporary authority. See Notice of Elimination of Notification
Procedure in the Processing of Emergency Temporarv Authority
Applications under 49 U.S.C. § 10928, 43 Fed. Reg. 58, 701
(Dec. 15, 1978). This Court recently, held that the ICC did not
properly promulgate this rule change. Brown Express, Inc. v.
United States, 5 Cir. 1979, 607 F.2d 695. In response the ICC
withdrew the new rule. See 44 Fed.Reg. 76, 616 (Dec. 27,
1979).