Commission's conclusion is a negative one, it must be supported by such basic findings of fact as to warrant reviewing court to conclude that Commission was not without rational grounds. However, the weight or inferences to be drawn from evidence presented before the Commission is properly the prerogative of the Commission. Since an administrative body is not bound by rule of stare decisis, the inconsistency of its holding with its prior holdings in and of itself does not make the holding of such body capricious. The Commission's decision that data supporting the increased stevedore costs was "inconclusive" and that there is an absence of clear and precise cost evidence is affirmed.--Baker v. United States, 338 F. Supp. 331 (334-36)*. ANTITRUST ACTS 15 USC CLAYTON ACT $18. ACQUISITION BY ONE CORPORATION OF STOCK OF ANOTHER 14. Lessening of competition. --The Supreme Court held that Commission exceeded its discretion in deferring consideration of the anticompetitive issues raised by proposed issuance of stock which would result in the control of Railway Express Agency (REA) by Greyhound Corp. The Clayton Act imposes a positive obligation upon the Commission to act whenever it has reason to believe any carrier within its jurisdiction is violating §7 of the Clayton Act (15 USC §18). With Greyhound's holding of 500,000 shares (20 percent) of REA's stock there is likely to be immediate and continuing cooperation between the companies which may injure appellants and which Government concedes may be against public interest. If such an alliance would in fact be against public interest and injurious to appellants, $7 requires that it be stopped in its incipiency. Further, there is little merit to the Government's contention that deferral of anticompetitive issues is strongly supported by considerations of administrative convenience. Case remanded to Commission for further proceedings. --Denver & R.G.W.R. Co. v. United States, 387 US 485 (501-04)*. $1336. JUDICIARY AND JUDICIAL PROCEDURE 28 USC INTERSTATE COMMERCE COMMISSION'S ORDERS 2. Construction and interpretation.--In appeals such as this the courts are authorized to exercise only a very limited scope of review, and that is whether there is warrant in the law and the facts for the Commission's action. With this restricted province in mind, we have examined plaintiff's contentions in light of the law and the record made before the joint board in this case and we conclude that the Commission's determination that present and future public convenience and necessity required the grant of sought authority was a permissible one supported by substantial evidence which showed that a number of products of supporting shipper, such as gasoline and certain brands of fuel oil, were not being adequately serviced by available carriers. Complaint dismissed.--Indianhead Truck Line, Inc. v. United States, 253 F. Supp. 186 (188)*. DISTRICT COURTS: VENUE $1398. INTERSTATE COMMERCE COMMISSION'S ORDERS 2. Suits to enforce, suspend, or set aside orders of Commission.-In an action to set aside a Commission order, the court must observe restrictions broadly imposed upon review of action of referees and commissioners generally, and must recognize the rule of administrative finality. The judicial function is exhausted when there is found to be a rational basis for Commission's conclusion. Court cannot substitute its own view concerning what should be done for the Commission's judgment upon matters committed to Commission's determination. Further, plaintiff in such an action as this had the burden to present record of evidence submitted to Commission and to show the invalidating infirmity. This has not been done. Commission's decision is upheld.--Andrews Van Lines, Inc. v. United States, 259 F. Supp. 468 (474-81)*. $2325. INJUNCTION; THREE-JUDGE COURT REQUIRED Jurisdiction of Courts to Restrain 7. Jurisdiction of district court.--This court has repeatedly stated our appreciation of the limited scope of judicial review to which the parties are entitled. See 204 F. Supp. 745, 754. We have also recognized the broad scope of the Commission's discretion in granting or denying certificates of public convenience and necessity as provided by § 207 (a) of the Interstate Commerce Act. As stated in 185 F. Supp. 390, 395, it is not the function of this court on review to resolve relevant factual issues entrusted to the expertise of the administrative body. conclude that there was a rational basis for the Commission's order under attack in instant case and said order is hereby affirmed.--Floyd & Beasley Transfer Co. v. United States, 256 F. Supp. 23 (25)*. Scope of Judicial Review of Commission's Orders 40. In general.--In suit under $217(b) of the Interstate Commerce Act, in which plaintiff carrier seeks to recover difference between its published tariff and rates charged defendant carrier, and in which district court entered judgment against plaintiff despite fact that Commission in response to petition found plaintiff was bound to charge its published rate, district court erred in substituting its own findings and conclusions for Commission's. Doctrine of primary jurisdiction allocates law making function between court and agency, is especially relevant to issues of fact arising under a complex regulatory scheme outside court's normal experience, and depend on whether the question raises issues of transportation policy which the Commission ought to consider in interests of uniform and expert administration. Due to complexity of construing the term "transportation" and its importance in the regulatory system, the issues involved herein fell within the Commission's primary jurisdiction. While Commission confined itself to the issues posed by the court's assumptions, it relied on examiner's findings of fact, and its declaratory order was not merely advisory but reflected Commission's considered opinion of issue within its primary jurisdiction. Reversed and remanded to district court.-Locust Cartage Co. v. Transamerican Freight Lines, Inc., 430 F. 2d 334 (339-41)*. When Commission resolves a question within its primary jurisdiction, its resolution should not be put aside unless it exceeds Commission's statutory authority or is unsupported by substantial evidence. When a district court refers an issue to the Commission, a party aggrieved by the Commission's order must file action for review within 90 days. As no such action was filed herein within allotted time, Commission's decision became final and binding on district court.--Id., pp. 341. No reference to agency is necessary when issue turns on questions of law not committed to agency discretion, when agency policy has already been clearly enunciated, or when issue turns on questions of fact peculiar to the case having no broader implications for Commission's regulatory program.-Id., pp. 340. RAIL PASSENGER SERVICE ACT OF 1970 (AMTRAK ACT) 45 USC $102. DEFINITIONS 5. Intercity rail passenger service.--The Commission, using the six criteria established in Penn Central, 338 ICC 318, found the subject rail service between Philadelphia and Harrisburg, Pa., to be "commuter and other short-haul" in nature and not "intercity rail passenger service" within the meaning of $102 (5) of Amtrak Act.--Penn Central Transp. Co.-Status of Passenger Serv., 338 ICC 621 (635-39). The term "commuter and other short-haul" service could reflect an operation extending beyond a metropolitan area to another metropolitan area as is the case herein.--Id., pp. 637. Inasmuch as this Act makes no direct or indirect reference to inclusion of substituted bus-for-rail service, and the legislative history of the statute does not envision any bus service, Commission found such service, between Lancaster and York, Pa., is not "intercity rail passenger service."--Id., pp. 639-41. The Commission, using the six criteria established in Penn Central, 338 ICC 318, found the considered rail service between New York City and Chatham, N.Y., to be "intercity rail passenger service" although such service has some minor characteristics of commuter trains, i.e., frequent stops and "casual" use for commuter purposes.-Penn Central Transp. Co.-Status of Passenger Serv., 338 ICC 660 (667-69). Commission's function in this case, in accord with district court's order for Commission to investigate the status of the subject trains, is to determine the character of the service actually being rendered and to analyze that service in light of certain limited and definite statutory language.--Penn Central Transp. Co.--Status of Passenger Serv., 338 ICC 660 (666-67). RULES OF PRACTICE Rule 274. Special rules governing notice of filing of applications by motor carriers of property or passengers and brokers under $206 except $206 (a) (b) relating to Certificates of Registration), §209, and §211, by water carriers under §302(e), §303, and $309, and by freight forwarders under $410 of the Interstate Commerce Act, and certain other procedural matters with respect there to:-Where a carrier had knowledge of the nature, extent and scope of another motor carrier's application for a certificate of public convenience and necessity and it attempted to intervene but did not give the Commission any good reason why it did not act within the prescribed 30-day time period and failed to satisfy Commission that grounds urged for reconsideration of the order granting certificate had any merit, plaintiff was not entitled to bring action in federal court to set aside and enjoin enforcement of Commission's orders resulting in grant of the certificate. Plaintiff, in effect, is asking the court to evaluate the merits of applicant's claim of public convenience and to ignore Commission's longstanding General and Special Rules of Practice for handling applications under modified procedure. This we are unwilling to do.-Smith & Solomon Trucking Co. v. United States, 255 F. Supp. 243 (250-53)*. TABLE OF CASES Agricultural Implements, Midwest to Oreg. & Wash., 337 ICC 611--§204 (b), n. 7; $206(c), n. 10 n. 25 American Coastal Lines, Inc., Ext.--Houston, Tex., 337 ICC 849--8309 (g), Andrews Van Lines, Inc. v. United States, 259 F. Supp. 468; affirming 99 MCC 331-$207 (a), n. 5, 25 temporary; 28 USC §1398, n. 2 Armellini Express Lines, Inc. Ext.--F.F. Traffic, 113 MCC 603, reversing prior report and order (NPR) decided 12-23-70--§207(a), n. 7 competition, 25 rates Associated Transport, Inc., Ext.--T.V.A. Power Plant, 113 MCC 637-$207 (a), n. 25 fitness Atchison, T. & S. F. Ry. Co. v. United States, 244 F. Supp. 955; rever ing 322 ICC 301--§1(3)(a), n. 50; §2, n. 15; §3(1), n. 19; §6(1), n. 81; $206(c), n. 3 Atlas Van Lines, Inc.--Notes, 338 ICC 291--$20a (11), n. 1; $214, n. 2 Baker v. United States, 338 F. Supp. 331; affirming 337 ICC 534--APA, 5 USC, judicial Berger Transfer & Storage, Inc., Ext.-48 States, 113 MCC 753, prior decision and order (NPR) of 3-9-70 reversed--§207(a), n. 25 public need Blue Fleet Distributors Corp. Modification of Permit, 113 MCC 778, affirming prior report (NPR) decided 1-29-71-8209 (a) (1), n. 25 specialized Bowman Transp., Inc., Ext.--Jackson, Ala., 113 MCC 633, reversing prio report and order (NPR) decided 3-9-71--§207 (a), n. 25 denied Broker Security for Protection of the Public, 115 MCC 1--§211(c), n. 1 Chicago & E.I.R. Co. Stock, 338 ICC 282--§20a (2), n. 104; §20a(3), n. $20a (7), n. 2 Chicago, Ill., Commercial Zone, 115 MCC 71, modifying 94 MCC 568--$203 n. 60 particular zones by name Chicago, R.I. & P.R. Co. Discontinuance of Trains, 338 ICC 68; petitio for temporary injunction dismissed for lack of jurisdiction at Iowa State Commerce Comm. v. United States, 313 F. Supp. 648--§13a, n. 25 Cincinnati, Ohio, Commercial Zone, 113 MCC 760, modifying prior report in 113 MCC 430-$203(b), n. 60 Cincinnati Cloud Common Carrier Application, 115 MCC 77, reversing prior report of Aug. 30, 1971--§207 (a), n. 25 existing service Commercial Zones and Terminal Areas, 113 MCC 773, modifying in certain respects prior report and order 111 MCC 240; other prior reports 48 MCC 95, 62 MCC 510, 83 MCC 492, and 99 MCC 572--$203(b), n. 60 Baltimore, Md. Cotter Garage Corp. Common Carrier Application, 113 MCC 589--§203(b), n. 35; $207(a), n. 25 existing service, fitness in general D & G Trucking Co., Inc., Contract Carrier Application, 113 MCC 883, reversing prior report (NPR) decided 1-22-71--§209(a)(1), n. 12, 25 necessi Denver & R.G.W.R. Co. v. United States, 255 F. Supp. 704--$5 (2), n. 111 Denver & R. G.W.R. Co. v. United States, 387 US 485; reversing and remanding 255 F. Supp. 704--$5 (2), n. 45, 112; $20a (2), n. 45; A-T, 15 USC $18, n. 14 |