# Appellants Reply Brief — Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Reply Brief
- **Published:** January 1, 1975
- **Citation:** 419 U.S. 281

## Text

IN THE

Supreme Court of the Unites Senyeg> 34

OCTOBER TERM, 1973

Nos. 73-1055, 73-1069,
73-1070, 73-1071, and 73-1072

BOWMAN TRANSPORTATION, INC., e7 al.

v

Appellants,

ARKANSAS-BEST FREIGHT SYSTEM, INC., e7 ai.

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS.
FORT SMITH DIVISION

REPLY BRIEF FOR APPELLANTS BOWMAN
TRANSPORTATION, INC., JOHNSON MOTOR
LINES, INC.. RED BALL MOTOR FREIGHT,
INC., AND LORCH-WESTWAY
CORPORATION, FT AL.

MAURICE F. BISHOP
601-09 Frank Nelson Building
Birmingham, Alabama 35203

Counsel for Bowman Trans-
portation, Inc.

SANDER W. SHAPIRO

JERRY C. PRESTRIDGE
Post Office Box 1148
Austin, Texas 78767

Counsel for Red Ball
Motor Freight, Inc.

BRYCE REA, JR.

DONALD E. CROSS
700 World Center Building
918 Sixteenth Street, N.W.
Washington, D.C. 20006

Counsel for Johnson Motor
Lines, Inc.

CHARLES S. RHYNE
COURTS OULAHAN
400 Hill Building
Washington, D.C. 20006

ROBERT L. JONES, JR.
412 Merchants National
Bank Building
Fort Smith, Arkansas 72901

Counsel for Lorch- Westway
Corporation, et al.

Wasrington.O.C « CLO PUBLISHERS « LAW PRINTING CO « (202) 393 06275

} MICMAF! <O0AK, JR cLens

(i)
TABLE OF CONTENTS

1. The Three-Judge District Court Re-Weighed The
Evidence, And Impermissibly Substituted Its

Judgment For That Of The Agency. ............

2. The Commission Did Consider All Of Appellees’

tn ans e UGU eke ebb bade On 66868666 o8 9
3. The Evidence Was Mistakenly Weighed By The
Court Below Under The Guise Of An Inappli-
GS chao caceccdecswoceds 10
4. The Court Should Remand With Directions To
Affirm The Commission’s Order. .................. 13
APPENDIX A Findings Of Substantial Evidence In
The Commission Order (114 M.C.C.
571) Determining Public Convenience
Dt cccocbctaecacebhesac's la
APPENDIX B Findings Of Substantial Evidence In
The Commission Order (114 M.C.C.
571) Supporting Grant Of The Bow-
I Shs 0 cb ce SeSs cevcccss Ib
APPENDIX C Findings Of Substantial Evidence In
The Commission Order (114 M.C.C.
571) Supporting Grant Of The John-
CO a Ic
APPENDIX D Findings Of Substantial Evidence In
The Commission Order (114 M.C.C.
571) Supporting Grant Of The Red
IN 65 bb Wawa ban wente ed Id
APPENDIX E Report And Order Of ICC In Herrin
Appendix G-—Protestants Evidence: ;
PPG. nun 00604640060 0642 le

(ii)

Page
TABLE OF AUTHORITIES
Cases:
American Farm Lines v. Black Ball, 397 US. 532 ........ 13
Ashbacker Radio Corp. v. Federal Communications

I SE as eee an ean 13
Bradley v. Maryland Casualty Co., 282 F.2d 415

Sorry rrr Ter tt 2
Bredehoeft Produce Co. v. United States, 376 F.

Bae. TOGA Gah, BORED lw. nc nc cccewwesncescsacs 2
Camp wv. Plete, 421 US. 198 2. nce cesscccsccccccens 12
Chicago & N.W. Ry. v. Atchison, Topeka & Santa Fe

i «906 0ns S406 n8 55 600600656408 14
Citizens to Preserve Overton Park, Inc. v. Volpe.

ee ae ee ak a el ee 10, 11
Consolidated Edison Co. v. National Labor Rela-

ie aus eneans 12
Consolo v. Fedural Maritime Commission, 383 U.S.

PS ee a: ee ee 2,14
Federal Communications Commission v. NBC

SS , & Fe a re 13
Federal Maritime Commission v. Svenska Amerika

I, a eens 14
Federal Trade Commission v. Cement Institute, 333

ee ee ee ee 15
First National Bank of Fayetteville v. Smith, 365 F.

Se EL OE, SOU 6 Oc wEhb bed Se cccseccses 12
Illinois Central R.R. v. Norfolk and Western Ry.,

DET ud ek bse Gass oe CSE dees 6 oka ek O8 14
Interstate Commerce Commission v. Jersey City,

I a i i ee oe el 13

Minn. & St. Louis Ry. v. United States, 361 U.S. 173,
CE Oe we rad 6s i isk oy pew ates chown

(iii)
Page
Morgan v. United States, 298 US. 468 ............... 13
O'Leary v. Brown-Pacific-Maxon, Inc., 340 US. 504 ...... 15
United States v. El Paso Natural Gas Co., 376 US.
et atk 6 bke md Cahedn bese ds 6 cu. GO ues bod <a 2
Statutes:
Administrative Procedure Act, 5 US.C. §§556,
ry od oe 11,12
Administrative Procedure Act — Legislative History,
S. Doc. 248, 79th Cong., 2d Sess. (1947) ............ 12

————

Oe ee ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

Nos. 73-1055, 73-1069,
73-1070, 73-1071, and 73-1072

BOWMAN TRANSPORTATION, INC., ef al,
Appellants,

ARKANSAS-BEST FREIGHT SYSTEM, INC., ef al,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS,
FORT SMITH DIVISION

REPLY BRIEF FOR APPELLANTS BOWMAN
TRANSPORTATION, INC., JOHNSON MOTOR
LINES, INC., RED BALL MOTOR FREIGHT,
INC., AND LORCH-WESTWAY
CORPORATION, ET AL.

The keystone of Appellees’ argument is that the
Three-Judge Court did not weigh the evidence. Brief at
9, 44. That Court’s opinion refutes that contention.
The Court fashioned a novel standard of judicial review,

2

without precedent in statute or decision. This standard
accommodated improper reweighing of the evidence and
rejection of the agency's specialized knowledge and
expertise. The Court has reiterated these mistaken views
in Bredehoeft Produce Co. v. United States, 376 F.
Supp. 70, 79 (W.D. Ark. 1974).

Appellees acknowledge that the Court's decision is
almost a verbatim copy of Appellees’ proposed findings
of fact and conclusions of law. Brief at 62, 63.'
Appellees misstate Appellants’ reasons for bringing this
matter to the attention of this Court. Appellants’
principal challenge is not to the copying itself, but to
the errors copied by the Court below from Appellees’
proposals. United States v. El Paso Natural Gas Co.,
376 U.S. 651, 656; Bradley v. Maryland Casualty Co.,
382 F.2d 415, 423 (8th Cir. 1967) (opinion per
Blackmun, J.). Appellees thereby led the Court below
into errors which must be corrected if the proper
relationship between the judiciary and administrative
agencies is to be preserved. Consolo v. Federal Maritime
Commission, 383 U.S. 607, 620-621.

1. The Three-Judge District Court Reweighed The

Evidence, And Impermissibly Substituted Its Judgment
For That Of The Agency.

The Court stated that “...a mere review of the
sufficiency of the evidence will not suffice in a
proceeding, such as the one now before the Court,

'The copying is 40 out of 43 pages. Compare App.

1276-1319 with App. 697-738.

3

where the agency action is alleged to be arbitrary and
capricious and resulting from an abuse of discretion.”
364 F. Supp. at 1258 (App. 726, 1307). The Court
then demonstrates by the very language it used that it
re-weighed the evidence stating, inter alia:

1. “Our review of the Division’s [Commission’s]
report in light of the whole record compels us to
the conclusion that the Division based its ultimate
conclusions upon subordinate findings that can be
supported only by a consideration of portions
rather than the entire record.* * *”” 364 F. Supp.
at 1259 (App. 1309).

2. “There is no rational basis for the Division's
refusal to give weight to the extensive transit-time
studies presented by protestants [Appellees].
***The conclusion [by the Commission] that
these studies are entitled to little weight because
they ‘relate to short periods of time’ is completely
arbitrary. Many covered longer periods of time
than those presented by applicants and others
covered periods identical to the applicants’ [ Appel-
lants’}.* * *” 364 F. Supp. at 1259-60 (App.
1310) (emphasis added).

3. “Other evidence presented by applicants’ ship-
pers received similar treatment by the Division.
Findings of the Examiners, and findings embodied
in an appendix to the Division’s report, reflecting
unfavorably upon applicants received emphasis by
the Examiners but no _ consideration by the
Division.” 364 F. Supp. at 1261 (App. 1311)
(emphasis added).

Other examples of the District Court's weighing
evidence and where its opinion proves this fact are:

(a) Transit-time evidence supporting Appellants
held to be “inferior” and evidence supporting
Appellees “superior”. 364 F. Supp. at 1251 (App.
1294).

4

(b) Appellants’ performance evidence held to be
“inferior”. 364 F. Supp. at 1251 (App. 1295).

(c) “Probative value” of similar or “identical”
evidence of Appellees not properly recognized by
Commission. 364 F. Supp. at 1251 (App. 1295).

(d) Appellees’ transit-time studies given too “little
weight” by Commission. 364 F. Supp. at 1251 (App.
1295).

(e) Commission refused “to afford weight” to
Appellees’ service exhibits. 364 F. Supp. at 1252 (App.
1296).

(f) Commission did not give “weight” to Appel-
lees’ “‘most important” evidence on transit-times. 364
F. Supp. at 1252 (App. 1310).

Characterizations of the Commission's “treatment” of
the evidence as arbitrary and capricious do not prove it
so. A_ reading of its Report proves that the
Commission carried out its statutory function of
weighing the evidence, comparing applicants, and
determining where lies the public convenience and
necessity. This was not arbitrary or capricious action
but a careful, thoughtful performance of statutory
duty. Appellees’ claims of error really come down to the
fact that the Commission does not agree with Appellees
as to the weight of the evidence. The Court's
decision really comes down to the fact that it does not
agree with the Commission as to the weight of the
evidence.

Agency findings based upon substantial evidence, as
were the Commission’s findings here, cannot lack a
rational basis so as to be arbitrary and capricious. The
Commission’s Report demonstrates why the District
Court did not find that the Commission's findings and

|

5

conclusions in this proceeding were not based upon
substantial evidence. This Appellees’ Brief concedes.
Brief at 14. Under these circumstances, the Com-
mission’s findings were not and could not be irrational
or arbitrary or capricious.

The Court below was led into grievous error by
Appellees who supplied language in which the Court
asserted that the Commission did not weigh the
evidence properly. The Court's findings are thus
factually incorrect. Refusal to give “weight” or giving
“little weight” (App. 715) does not mean failure to
weigh. The Commission’s Report carefully and reason-
ably weighed, evaluated and explained why it could not
treat Appellees’ evidence as more persuasive than
Appellants’. The Commission wrote a careful and
exhaustive Report consisting of 59 pages plus 196 pages
of Appendix (App. 101-367). Along with its own
summary of the evidence regrouped geographically
(App. 182-318), the Commission set forth a summary
of all applications (App. 161-170), all pleadings and
exceptions (App. 170-181), the Examiners’ summary of
Appellees’ evidence (App. 316-356), a description of
regular routes authorized (App. 356-358), and a listing
of the increased population to be served (App. 123.
319). A reading of those pages proves conclusively that
the Commission exhaustively considered all evidence
presented by Appellees and Appellants, in “what is
perhaps the most extensive record ever developed in
connection with a single group of motor carrier
applications”, with 1009 witnesses presenting 23,423
pages of testimony and 1987 exhibits in 147 days of
oral hearings. 114 M.C.C. at 573 (App. 103). °

6

As stated above, the Court below held that the
Commission arbitrarily gave no “weight” to Appellees’
transit-time studies, which were “the most important
part of [Appellees’] evidence”, purportedly showing
“reasonably adequate protestant service’. 364 F. Supp.
at 1259, 1261 (App. 1310, 1313). In fact, the
“treatment” of this evidence by the Commission is fully
supported by reasoning set forth in its Report, and the
Commission's “‘treatment” is worthy of more detailed
consideration as it is illustrative of the Commission's
careful weighing of th evidence. After a _ concise
summary of these transit-time studies, based upon the
detailed summary prepared by the Examiners and set
forth in full in Appendix G of the agency decision (App.
319-356), the Commission noted that:

“*** | [While [these studies] . . . demonstrate
that in certain instances during the study periods
expeditious service was rendered by certain of the
protestants [Appellees], these studies must be
considered in the light of the facts (1) that most
either relate to short periods of time or cover
traffic handled for specified shippers and (2) that
they were made when protestants were confronted
with the possibility of grants of authority to
additional carriers. When viewed in this light, we
believe that protestants’ studies do not present as
valid a picture as those introduced by _ those
witnesses supporting the applications here under
consideration [Shippers].”” 114 M.C.C. at 599
(App. 129).

The Court below erroneously stated that:

“* * * The length of time covered by the studies
or the dates embraced therein were not considered
significant by the parties or the Examiners. Indeed,
these facts were not deemed sufficiently important

ee —_— Ee ———

5

by the Division itself to be mentioned in its own
findings relative to evidence presented’ by certain
protestants. * * *”” 364 F. Supp. at .1259 (App.
1310).

To set the record straight, both the Examiners and the
Commission did find these factors important. The
detailed summary of Appellees’ evidence prepared by
the Examiners does set forth the length of time covered
or the dates of the studies, e.g., 114 M.C.C. at 782, 791
(App. 344, 353) (See App. E).? The Commission
not only presented a concise suinmary of this evidence.
It also incorporated into its Report the full summary
prepared by the Examiners. The accuracy of the
Commission’s summary is not challenged by the Court,
which disagreed only with the conclusions drawn
therefrom. Surely, no inference of arbitrary conduct by
the Commission can be drawn from its action in not
restating in full in the body of its Report the details of
evidence set forth in an appendix *o its Report.

The District Court, in re-weighing the evidence,
consistently credited the conclusions of the Examiners
over those of the Commission, even though it is beyond
question that the ultimate responsibility in such expert

2Of the approximately 200 shippers submitting transit time
studies, about 185 covered traffic handled during a period of over
one month. Of these approximately 45 covered traffic handled
during a period of from | to 3 months, about 35 covered traffic
handled during a period of from 3 to 6 months, about 75 covered
traffic handled during a period of from 6 months to | year, and
approximately 30 covered traffic handled during the period of |
year or more.

While only two of the 14 protestants which submitted transit
time studies introduced evidence regarding traffic handled in 1965,
about 78 of the studies of the supporting shippers covered traffic
handled in 1965 (some in addition to that handled in 1966 and
some solely for 1965), and at least 5 covered traffic handled in
1964. (See App. E).

8

matters lies with the Commission. The Court confuses
the Examiners’ summary of the evidence, with which
there is no quarrel, with their conclusions, with which
the Commission disagreed. For example, the Examiners
referred to the “anomaly” of certain carriers (ie.,
Appellant Bowman) having the dual role of applicant
and protestant. (App. 753); 364 F. Supp. at 1247 (App.
1287).

This characterization demonstrates the failure of the
Examiners to grasp the significance of this proceeding.
The Commission sought to meet the expanding
transportation needs of the Southeast and Southwest by
a consolidation of multiple applications to provide
service in these areas, rather than by atomized
consideration of these needs on a certificate-by-
certificate basis. The Court was induced by the
Appellees to fall into the same error. It was for the
Commission — not the Examiners or the Court — to
exercise its statutory duty in making this expert
judgment, which also was carried out in regrouping the
deficiencies and needs of the shippers on a geographical,
rather than a commodity, basis (App. 182-318). This
geographical regrouping clearly established the basis for
the Commission’s decision that the public convenience
and necessity required the additional service demanded
by the outpouring of 933 shipper witnesses as well as
the basis for the choice of the three Appellant carriers
to meet these demonstrated needs. When the evidence is
analyzed geographically, clearly these carriers must be
selected as best able to supply the need which the
public interest demands.

The Court’s erroneous interpretation of the Com-
mission’s “treatment” of “the most important part of
{Appellees’] evidence” reveals the serious distortion of
the process of judicial review which occurred below.

ee

9

The Court’s conclusion is a prime example of its use of
an improper standard of review. The Commission's
consideration of such evidence as transit-time studies is
a matter of fact finding properly to be reviewed
pursuant to the substantial evidence test. The reviewing
Court cannot substitute its judgment for that of the
agency by re-weighing the evidence under the guise of
the arbitrary and capricious standard. The Court was
wrong both in fact and in law.’

The ‘ourt below simply substituted its own
judgment in determining where lies the public con-
venience and necessity, and refused to recognize the
expertise of the Commission. This was the statutory
duty of the agency.

‘

2. The Commission Did Consider All Of Appellees’
Evidence.

The Court, as proposed by Appellees, stated in its
opinion that the Commission did not base its
conclusions upon the entire record, or did not
“consider” Appellees’ evidence. 364 F. Supp. at 1251,
1259 (App. 728, 1294, 1310); Appellees’ Proposed
Conclusion 10 (App. 777, 1309).* Appellees repeat this

7As a matter of fact, the District Court repeatedly
mischaracterized transit-time studies as those of “applicants”,
when in fact they were presented by supporting shippers. 364 F.
Supp. at 1259-60 (App. 1310-13), 364 F. Supp. at 1261 (App.
1313-14).

“Appellees, at page 50 of their brief, argue that “{a}lthough
requested to do so by protestants, the Division refused to take
official notice of the same edition of the same publication which
showed that Red Ball had closed 35 of its 92 terminals.” (Emphasis
added). This statement is incorrect. In noting that Cole-Dixie had
closed one of its terminals since the close of the hearing, the
Commission relied on the Fall 1971 edition of the American Motor
Carrier Directory. The evidence concerning the closing of Red

10

error. Brief at 55, 58-60. The Commission's Report
directly refutes this erroneous conclusion, e.g. :

“The evidence considered in its entirety is
convincing that the additional service so to be
authorized will serve a useful purpose, responsive
to a public demand and need and that available
transportation services between the points and to
the extent authority is granted are not reasonably
adequate to meet the demonstrated needs of the
shipping and receiving public.” 114 M.C.C. at 599

(App. 129) (emphasis added).

And:
“Considered as a whole, the record demonstrates
that many of the supporting witnesses are not

receiving reasonably adequate service.” /d at
599-600 (App. 129-130) (emphasis added).

The Commission also twice referred to its considera-
tion of all the evidence of the Appellees.

“The evidence, the recommendations of the
hearing examiners and the pleadings have been
considered. inasmuch as no exception is taken to
the examiners’ summary of the evidence presented
by the protestants as to their authorities, equip-
ment, and operations, this portion of the ex-
aminers’ report is hereby adopted and is set forth
in appendix G to this report.”” (App. 105, 319-356)
(emphasis added).

“The evidence of the opposing carriers, as
summarized by the examiners, is set forth in
appendix G of this report.” (App. 128, 319-356)
(emphasis added).

Ball’s terminals subsequent to the hearing was published in the
1972 edition of the American Motor Carrier Directory which was
released after the Commission's :eport which is dated December
30, 1971. In any case, this matter, along with Red Ball’s
explanation, was considered at the reconsideration stage.

3. The Evidence Was Mistakenly Weighed By The Court
Below Under The Guise Of An Inapplicable Standard
Of Review.

Appellees claim that Appellants “take the position
that this Court over-spoke itself in’ Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402. Brief at 23.
Appellees misstate Appellants’ position. Appellants’
position is that Overton Park does not authorize the
application of an additional and more rigorous Court
weighing of the evidence test to adjudicatory fact
findings “in a case subject to sections 556 and 557” of
the Administrative Procedure Act. 5 U.S.C. §706(2)\(E).
The arbitrary and capricious standard cannot be used as
a guise under which a reviewing Court in a case based
on a formal record may arbitrarily substitute its
judgment for that of the agency where, as here, the
agency findings and conclusions based thereon are
supported by substantial evidence.‘

The judicial review provisions of the Administrative
Procedure Act require that agency action should be set
aside if it violates the Constitution or a statute. 5
U.S.C. §706(2)B)(C). The same is true where there is
no observance of procedure required by law. /bid.
§706(2)(D). Trial de novo by the reviewing Court, in
effect resorted to by the Court below, is only
applicable for adjudication not subject to Sections 556

‘For a summary of this substantial evidence, see Apps. A-D,
which outline that evidence with respect to the overall public
convenience and necessity (App. A) and to the basis upon which
the Commission granted a certificate to each of the Appellant
carriers (Apps. B, C, and D). Appellees did not allege in their
complaint and have never argued that the agency order was not
supported by substantial evidence. Their confused position is
illustrated by their statement that the Three-Judge Court “did
not find the actions and conclusions of the agency to be

supported by substantial evidence, nor did the Court find that
the agency made erroneous findings of fact.” Brief at 9.

12

and 557. Administrative Procedure Act — Legislative
History, S. Doc. 248, 79th Cong., 2d Sess. 214 (1947).
Ibid. §706(2F). Cf First National Bank of Fayette-
ville v. Smith, 365 F. Supp. 898, 910-911 (W.D. Ark.
1973) (opinion per Miller, J.) (appeal pending).

This leaves the substantial evidence rule and the
standard used by the Court below. Appellees claim that
“both standards are applicable”. Brief at 9. The
substantial evidence rule is only applicable to formal
hearings on the record and is embodied in the decisional
provisions of the Administrative Procedure Act. 5
U.S.C. §556(d) requires that an order issued by formal
adjudication must be “supported by and in accordance
with the reliable, probative and substantial evidence’.
This section codifies the rule developed by this Court in
Consolidated Edison Co. v. National Labor Relations
Board, 305 U.S. 197, 229, with respect to findings of
fact. Under this rule, the Commission is not required
specifically to consider and rule upon every item of
evidence in the record or every contention made by
all parties. Minn. & St. Louis Ry. v. United States, 361

U.S. 173, 193-194,
Congress intended the Administrative Procedure Act

to be read and applied as a whole. Administrative
Procedure Act — Legislative History, S. Doc. No. 248,
79th Cong., 2d Sess. 194, 216 (1946). Congress could
not have intended to make Section 556(d) redundant
by the disjunctive provisions of Section 706(2). Indeed,
the arbitrary, and capricious standard of Section
706(2\A) applies to matters “not in accordance with
law” (emphasis added). The substantial evidence rule,
enacted in Section 556(d), on the other hand, applies
to findings of fact. Camp y. Pitts, 411 U.S. 138,
141-142.

Appellants never have contended that a concept
similar to the arbitrary and capricious standard has no

13

application to a formal adjudicatory proceeding under
the Administrative Procedure Act. American Farm Lines
v. Black Ball, 397 U.S. 532, 538-539: Interstate
Commerce Commission v. Jersey City, 322 U.S. 503,
514-519. Examples occur where the deciding officer
fails to personally consider and appraise the record in
accordance with Morgan v. United States, 298 U.S. 468.
477-482; where an administrative agency refuses to
consolidate mutually exclusive application hearings,
Ashbacker Radio Corp. v. Federal Communications
Commission, 326 U.S. 327, 333; or where an agency
refuses to allow a party to formally intervene while
permitting them to file briefs and present evidence and
oral argument, Federal Communications Commission vy.
NBC (KOA), 319 U.S. 239, 247. Such considerations of
agency policy and procedure clearly are not at issue in
the instant case.

4. This Court Should Remand With Directions To Affirm
The Commission's Order.

Appellees argue, with respect to the Three-Judge
Court’s failure to remand, that:

“The judgment did no more than enjoin the
issuance of the specific certificates authorized in
such order.

* * *

“The Commission remains free to consider the
substantive issues of public convenience and
necessity at any time and therefore its delegated
powers have in no way been usurped.” (Brief at
64).

Such statements are consistent with Appellees’ failure
to acknowledge the cost, in both dollars and time,
which each delay in this proceeding has brought upon

14

the Shippers, to whom Appellees refer as “private
Appellants”. This dilatory strategy by Appellees cul-
minated in the Three-Judge Court’s permanent injunc-
tion against, rather than remand of, the Commission’s
order. Now, after significant but necessary delay in
seeking to correct that Court’s errors, “private Appel-
lants”’ are faced with the prospect of a hollow victory if
this Court finds for Appellants, but remands to either
the Court below or to the Commission, via that Court,
for further action. Appellees have nothing to lose by

15

O'Leary v. Brown-Pacific-Maxon, Inc. 340 U.S. 504,
508; Federal Trade Commission v. Cement Institute,
333 U.S. 683, 730.

The record here presented is similar in all relevant
aspects to these precedents. This case requires a similar
resolution. Truly, here, justice delayed would be justice
denied.

Respectfully submitted,

waiting. Appellants have nothing to gain. The real losers MAURICE F. BISHOP BRYCE REA, JR.

are the Shippers, whose needs the Commission sought to
meet. Appellants therefore pray that this Court remand

601-09 Frank Nelson Building
Birmingham, Alabama 35203

DONALD E. CROSS
700 World Center Building

918 Sixteenth Street, N.W.

with directions t6 affirm the Commission's decision. Counsel for Bowman
Such a procedure was employed by this Court in Transportation, Inc. Washington, D.C. 20006
Federal Maritime Commission v. Svenska Amerika t SANDER W. SHAPIRO Counsel for Johnson Motor
Tinien, 390 U.S. 238. There, as here, the proceedings JERRY C. PRESTRIDGE Lines, Inc.
had been in progress for more than eight years. The Post Office Box 1148 CHARLES S. RHYNE
reviewing Court there, as here, had taken “the Austin, Texas 78767 COURTS OULAHAN
extraordinary course” of failing to remand to the Counsel for Red Ball 400 Hill Building
agency for further action. This Court there stated: Motor Freight, Inc. Washington, D.C. 20006
“Since we have found that the Commission's ROBERT L. JONES, JR.
findings and order are supported by substantial ‘ 412 Merchants National
evidence and, since there are no other meritorious Bank Buildi
contentions raised by respondents, we think it is ng
time for a final disposition of the proceedings. The 7 Fort Smith, Arkansas 72901
judgment of the Court of Appeals is reversed; and Counsel for Lorch-Westway

the cases are remanded with directions to affirm
the order of the Commission.” 390 U.S. at 252,
253 (emphasis added).

Numerous cases have been disposed of by this Court
in like manner. Chicago & N.W. Ry. v. Atchison Topeka
& Santa Fe Ry., 387 U.S. 326; Illinois Central R.R. vy.
Norfolk and Western Ry., 385 U.S. 57, 75; Consolo y.
Federal Maritime Commission, 383 U.S. 607, 621;

Corporation, et al.

APPENDIX A

Findings of Substantial Evidence in
the Commission Order (114 M.C.C. 571)
Determining Public Convenience and
Necessity.

1. Locations of Facilities of Supporting Public
Witnesses.

“Thus, the 8 remaining applicants are
supported by 482 shippers with facilities located in
the Southwest” specified in the following footnote
as “specifically, 84 shippers have facilities in
Arkansas, 6 in Cciuradc, 84 in Louisiana, | in
New Mexico. 52 in Oklahoma, and 275 in Texas”;

“40 shippers in the Southeast” specified
in the following footnote as “Eighty-four shippers
have facilities in Alabama, 15 in Florida, 114 in
Georgia, | in Kentucky, 54 in Mississippi, 25 in
North Carolina, 25 in South Carolina, 17 in
Tennessee, and 5 in Virginia”;

“44, collectively, in the Middle Atlantic
and New England States” specified in the
following footnote as “‘Four shippers have facilities
in Connecticut, | in Delaware, 3 in Maryland, 8 in
Massachusetts, | in New Hampshire, 9 in New
Jersey, 5 in New York, 9 in Pennsylvania, and 4 in
Rhode Island”’;

“and 42 in the Midwest’’ specified in the
following footnote as “Fifteen shippers have
facilities in Kansas and 27 have facilities in
Missouri.””

114 MCC. $92
(App. 122)

2a

Il. Range of Commodities Shipped by Supporting
Shippers.

“(The traffic] consists of an extremely wide
variety of commodities (the examiners categorized
the shipper evidence according to approximately
45 different commodity descriptions) including
clothing, pharmaceuticals, metal articles, leather
goors, machinery, toys, grocery and department
store items, commodities requiring refrigeration, 114 M.C.C. 592
anc furniture.” (App. 122)

Ill. Shipper Dissatisfaction with Existing Service.

A. “Approximately 650 shippers have com-
plained about inconsistent and excessive transit 114 M.C.C. 596
times.” (App. 126)

B. “{O]ver 200 introduced transit time studies

demonstrating the undependable service they 114 M.C.c. 596
currently receive.” (App. 126)

C. “About 70 of the shippers located at
points in a total of 16 States complain
collectively about certain carriers’ service
restrictions and embargoes as well as about the
outright refusals of authorized carriers to 114 M.C.C. 5%
handle traffic.” (App. 126)

D. “Pickup and delivery complaints were
voiced by about 150 shippers located through- 114 m.c.c. 597
out 18 States.” F (App. 127)

3a

E. “Approximately 110 shippers complain

about interline difficulties and about 200

shippers collectively complain about loss,

damage, tracing difficulties, and misrowiing, 1:4 M.c.c. 597
much of which occurred in interchange ‘pp. 127)
service.”

F. “Approximately 17C shippers located at

points in 20 of the involved States indicate

that they have received complaints from their 114 M.C.C. 597
customers with respect to the existing service.”” ‘App. 127)

G. “The above-described difficulties have re-

sulted in shippers losing customers, business,

and short-term discounts.” (Approximately 80 114 M.C.C. $98
shippers) (App. 128)

IV. Economic Study, Department of Transporta-
tion, University of Houston re areas served by
applicant Johnson.

“The study develops the theses that the areas
presently served by Johnson and the areas Johnson
yroposes to serve have grown significantly in
recent years; that there is substantial trade and
commerce between these two areas; and that
comparatively there is a paucity of single-line
motor carrier service available to meet the 114 M.CC. 592
demonstrated growth.” (App. 122)

V. Population Growth in States Where Supporting Appendix F
Shippers Located. 114 M.C.C. 757
(App. 319)

ee

ee

Aen ee ee

Ib
APPENDIX B

Findings of Substantial Evidence in
the Commission Order (114 M.C.C. 571)
Supporting Grant of the Bowman
Application.

1. “Bowman holds. . .authority...from, to, and

between points in a territory bounded by Chicago,

lll., and points within 35 miles of Columbus

Circle, N.Y. on the north; Miami and Pensacola,

Fla., and Mobile, Ala., on the south; Memphis and

Tuscaloosa, Ala., on the west, and points along the 114 M.C.C. 584
eastern seaboard.” (App. 114)

2. “Bowman maintains 25 terminals, most of

which are located in the Southeast. It proposes to

establish [21 terminals and 3 agency stations in

the points proposed to be served in Arkansas,

Kansas, Louisiana, Mississippi, Missouri, and

Texas]. Its fleet consists of 478 tractors, including 114 M.c.c. 58s
359 sleeper cabs, and 978 trailers.” (App. 115)

3. “It proposes to render | or 2 day service
generally between Chattanooga and Memphis,
Tenn., and Birmingham and Gadsden,...
Montgomery and Mobile, Ala., on the one hand,
and, on the other, points in the territory it seeks
to serve. Applicant introduced exhibits showing
that on the 546 shipments moving from
its Miami to its Atlanta terminals (744 operating
miles) during a specified l-week period in 1966,
the average transit time was 1.9 days; that on the
321 shipments moving from its Birmingham

2b

terminal during the same period and delivered or
interlined at Charlotte (408 operating miles), the
average transit time was 1.5 days; that on 206
shipments moving from its Richmond, Va., termi-
nal to its Memphis terminal (855 operating miles)
during the same period, the average transit time
was 2.5 days; and that on 26 shipments handled
from Birmingham to New York, N.Y. (1030
operating miles) during the Il-week period, the
average transit time was 2.8 days.”

4. “...Bowman has persuasively demonstrated a
need for its services between specified points in
Mississippi, Kansas, Missouri, Arkansas, Louisiana,
and Texas, on the one hand, and, on the other,
those points in the Southeast and East that it
presently serves.”

5. “Approximately 135 witnesses in 13 States
support that portion of Bowman’s application
secking authority to serve the 10 specified
Mississippi points. Over 100 of these have
experienced difficulties with inadequate, inconsis-
tent, and excessive transit times. The witnesses’
transit time studies show that between 3- and
4-day service is generally rendered on a substantial
amount of their traffic moving between Atlanta
and major Mississippi points, with transit times
ranging between | and 7 days. From other points
in the territory Bowman presently serves, transit
times to Mississippi range from 3 to 21 days.”

6. “Approximately 25 supporting witnesses have
complained of either refusals by authorized carriers

114 M.C.C. 585, 586
(App. 115, 116

114 M.C.C. 604
(App. 150)

114 M.C.C. 604-605
(App. 150-151)

3b

to handle their traffic, and of carrier embargoes or
restrictions; and about 50 have experienced pickup
and delivery problems.”

7. “Collectively, Deaton, Dixie, Campbell, Road-
way, and Ryder [Protestants] are cited for
refusing to handle a number of the supporting
shippers’ traffic to Mississippi from points in the
Southeast.”

8. “...two protestants to [the Bowman] applica-
tion (Campbell and Herrin) withdrew their oppo-
sition,” °

9. “Approximately 80 witnesses support the
Kansas-Missouri portion of Bowman’s application.
Over 60 of these complain about pickup and
delivery problems, loss, damage, shortage, tracing
difficulties, misrouting, interline problems, unsuit-
able or inadequate equipment, customer com-
plaints, and lost business and penalties.”

10, “{ Protestants} Roadway and Transcon have
declined to handle some of the supporting
witnesses’ traffic.”

11. “Additionally, Bowman has shown that the
present and future public convenience and neces-
sity require the extension of its operations to
points in the remaining States it proposes to

”

serve.

12.“*The evidence of the supporting witnesses
establishes a clear and convincing public need for

114 M.C.C. 605
(App. 151)

114 M.C.C. 605

(App. 151)

114 M.C.C. 605
(App. 151)

114 M.C.C. 606
(App. 152)

114 M.C.C. 606
(App. 152) °

114 M.C.C. 607
(App. 153)

4b

single-line motor carrier service between the broad
southeastern and eastern seaboard territory served
by Bowman, on the one hand, and, on the other,
the Arkansas points it proposes to serve. Approx-
imately 100 witnesses supported this portion of
Bowman’s proposal. Many expressed a need for
single-line service between the Arkansas points, on
the one hand, and, on the other, points in Florida,
Georgia, and the Carolinas (other than Birming-
ham, Atlanta, and Charlotte) for which no such
service is available. Existing carriers which hold
authority to operate between ti. Arkansas points
and points which Bowman presently serves are
limited territorily [sic] either with respect to the
Arkansas points they serve or as to the territory
Bowman already serves. As a consequence, none
can provide the comprehensive single-line service
that would be offered by Bowman between the
involved Arkansas points and the territory it now
serves, and none of the remaining applicants
propose such an extensive service.”

13. “Similarly, the protestants are unable to
provide the full scope of the single-line services
proposed by this applicant between the Louisiana
points. . .it propose; to serve and the territory it
currently serves. Over 150 witnesses support this
portion of Bowman's proposal, and they too have
demonstrated material inadequacies in the trans-
portation services they now receive.”

14.““With respect to New Orleans, the approxi-
mately 30 shippers supporting this aspect of

114 M.C.C. 607-608
(App. 153-154)

114 MCC. 608
(App. 154)

Sb

Bowman’s application have shown that the service
they are receiving between specified points in

Alabama and Tennessee, on the one hand, and, on 114 M.c.c. 608

the other, New Orleans, is not adequate.”

15. “Regarding Texas, it is noted that more
witnesses from the Dallas-Fort Worth area testified
in support of Bowman’s application than any of
the other applicants. Also, witnesses from num-
erous points throughout Bowman’s authorized
territory testified in support of this portion of its
application. Many of these shippers do not
presently have single-line service to this important
area, and none of the other applicants proposes to

(App. 154)

render the extensive single-line services to be 114 M.C.C. 608

proffered by Bowman.”

16. “Many shippers. . .demonstrated. . .that they re-
quire the singleline service here authorized to be

(App. 154)

provided by Bowman, and that the lack of such 114 M.C.C. 608

service has been harmful to them.”

(App. 154)

Ic

APPENDIX C

Findings of Substantial Evidence in
the Commission Order (114 M.C.C. 571)
Supporting Grant of the Johnson
Application.

1. “Johnson holds regular- and irregular-route

authority to transport principally general
commodities, with the usual exceptions. Its regular
routes extend between points in a territory
bounded by Boston and Worcester, Mass., and
Niagara Falls, Oswego, and Glen Falls, N.Y., on
the north, and Pensacola, Mobile, Pascagoula and

Gulfport, Miss., and New Orleans, on the south, .

... Applicant’s irregular-route general-commodity
authority extends generally to points in New York,
New Jersey, Pennsylvania, Maryland, Virginia,
North and South Carolina, Georgia, and Florida.”

2. “Johnson proposes to operate over two
service routes, which it describes as the proposed
northern route and the proposed southern route.
The former involves general-commodity,
regular-route operations between Atlanta and
Dallas-Fort Worth, with service at the intermediate
points of Jackson, Monroe, and Shreveport,
restricted to traffic moving to, from, or through
Atlanta. The southern route involves the same type
of operations between New Orleans and Houston,
with service at the intermediate points of Baton
Rouge, Orange, and Beaumont, and service at
Texas City, Tex., as an off-route point, restricted

114 M.C.C, 586
(App. 116)

2c

to traffic moving to, from, or through Gulfport,

Miss. In other words, no service is proposed

between New Orleans and points on the southern 114 M.c.c. 587
route.” (App. 117)

3. “The stated purpose of the ... proposal is 114 M.C.C. 609
to permit service of an ‘over-head’ nature between ‘App. 155)
points on Johnson’s present system, on the one
hand, and, on the other, points on the proposed 114 M.C.c. 587
routes.” (App. 117)

4. “Applicant maintains about 35 terminals at

principal points on its routes and in its irregular
route territory. Proposed terminal points

include Baton Rouge, Beaumont, Dallas, Houston, 114 M.C.c. 586-587

Jackson, Monroe, and Shreveport.” (App. 116-117)
5. “Johnson operates approximately 500 trac-

tors and 1,000 trailers ... and it will add 50

tractors and 100 trailers to its fleet if its 114 M.C.c. 587

application is granted.” (App. 117)

6. “Presently, traffic moving to and from Texas,
Louisiana, and Mississippi and points beyond is
interlined by [Johnson] mostly at New Orleans
and Mobile, with some being interlined at Atlanta.
Under the proposal, applicant’s traffic lane pat-
terns would be revised and all traffic moving to
and from the proposed service area ... will break
bulk at Charlotte, and move by two-man teams on
a direct nonstop basis between Charlotte and the
seven proposed terminal points. Traffic originating
or terminating at points in Georgia, and in the

3c

Montgomery and Opelika terminal areas, and in
South Carolina (except Wallace, S.C.) will break
bulk at Atlanta, and will move by a two-man team
on a direct, nonstop dispatch between Atlanta and
the seven proposed terminal points.”

7. “Additionally, Johnson has revised its
operations and effective March 13, 1966, it
commenced using two-man teams which would be
utilized on a direct nonstop basis between
Charlotte and the seven proposed terminal points
here under consideration.”

8. “[A]pplicant generally proposes to render
between I- and 3-day LTL service between its
authorized territory and the seven terminal points
it seeks to serve.... At 33.3 miles per hour, the
816 miles between these terminals [Boston and
Charlotte] would be traversed in 24.5 hours....
The 1,110 miles between Charlotte and Houston
would be traversed in 28 hours at a speed of 39.6
miles per hour.”

9. “Its application is supported by 236
witnesses located throughout the area it serves or
proposes to serve.”

10. “Their [the supporting witnesses’] testi-
mony establishes that the existing service on small
shipments traffic between the involved territories is
generally inadequate. Many of the supporting
witnesses validly complain with respect to lengthy
and undependable transit times; and their studies,

114 M.C.C, 587-588
(App. 117-118)

114 M.C.C, 611
(App. 151)

114 M.C.C. 589
(App. 119)

114 M.C.C, 609
(App.155)

4c

considered on the whole, demonstrate that incom
sistent and excessive transit times have been
experienced on a _ substantial portion of the
involved traffic. Complaints also were voiced by
many of the shippers with respect to poor pickup
and delivery service, tracing problems, and exces-
sive loss and damage.”

11.“Many of the shippers’ problems can be
attributed to the existing joint-line motor ser-
vice.... Major east coast motor common carriers
...+ failed to participate in this proceeding; and it
is therefore apparent that important segment ...
of the involved joint-line motor carrier system does
not oppose the Johnson appiication.”

12. “Of the single-line protestants which serve
between the points Johnson proposes to serve and
its present territory, Ryder does not hold
authority to serve the Dallas-Fort Worth area and
much of the Carolinas; Roadway holds authority
to perform the proposed ‘over-head’ service but its
service was the subject of many of the shippers’
complaints; and the authorities of T.I.M.E. and
Transcon are limited to such an extent that they
can provide only a portion of the service proposed
by Johnson.”

114 M.C.C. 609
(App. 155)

114 M.C.C, 609
(App. 155)

114 M.C.C. 609
(App. 155)

Id
APPENDIX D

Findings of Substantial Evidence in
the Commission Order (114 M.C.C. 571)
Supporting Grant of the Red Ball

Application.

1. “The Southwestern applicants. Whereas the
proposals of some of the southern applicants differ
somewhat in scope, those of the southwestern
carriers are basically similar.”

2. “With respect to this latter category of
applicants, it is our opinion that the evidence of
record including the traffic volumes shown to be
moving and all other relevant factors enumerated
in this report, justifies a grant of authority to only
one of them. In deciding which is to be granted
such authority, consideration must be given to the
criteria prescribed by this Commission and the
courts for the selection of an applicant where, as
here, it is not feasible to grant all applications
seeking essentially similar authority. Those criteria,
as summarized in Kroblin Refrigerated Xpress,
Inc., Ext. -Denison, Iowa, 96 M.C.C. 233, 237
(1964), is as follows: (1) an evaluation of the
existing authorities and operations of the com
sidered applicants, (2) the location of their
terminal facilities and the equipment operated by
them, (3) the relative date of filing the applica-
tions, and (4) the carrier which produced the
evidence supporting the finding of public need. Cf.
also H.C. Gabler, Inc., Ext. Cement from Md. and

114 M.C.C, 602
(App. 132)

2d

Pa. Counties, 86 M.C.C. 447, 469-470 (1961), and 114 M.c.c. 602
cases cited therein.” (App. 132

3. “Under these criteria, it is noted that Red Ball .

operates over a much more extensive system of

routes in the Southwest than does Herrin, 114 m.c.c. 602
Strickland, or Jones;” (App. 132)

4. “The number of Red Ball terminals (92
terminals located throughout Texas, Louisiana.
Arkansas, New Mexico, Colorado, and Oklahoma)
is about three times the collective number of
terminals operated by Herrin, Strickland, and 114 M.c.c. 602
Jones in the Southwest;” (App. 132)

5. “...with the equipment located at these

terming‘s Red Ball is in a much better position to

serve shippers and receivers located in the 114 M.C.C. 602
Southwest than Herrin, Strickland, or Jones;” (App. 132

6. “Red Ball would have to establish 3 additional
terminals in the Southeast and proposes to add
equipment as it becomes necessary, while (a) Her-
rin proposed 6 additional southeastern terminals,
the reestablishment of a terminal at Litile Rock,
and would add 41 tractors, 80 trailers, and 67
trucks to its fleet, (b) Strickland proposes to
establish 4 additional southeastern terminals, and
(c) Jones proposes to establish terminals at 2
southeastern points (Atlanta and Birmingham) and

at 2 southwestern points (El Dorado and Texar- 114 M.C.c. 602-603

kana);” (App. 132-149)

3d

7. “that Red Ball presented 13C supporting
witnesses and an additional 23 witnesses specifical-
ly supported its application, whereas (a) Herrin
presented 87 witnesses and an additional 11
supported its application, (b) Strickland presented
102 shipper witnesses, and an additional 24
supported its application, and (c) Jones presented
90 witnesses and an additional 117 supported its
application;”

8. “Clearly, of the southwestem applicants, Red
Ball has made the superior showing with respect to
each of the above-described criteria, and, therefore,
it is selected to receive the authority for which a
public need has been found in this report.”

9. “Moreover, none of the other three applicants
proposes and none of the protestants (even
considering the operations authorized since the
hearing herein) is able to provide the extensive
single-line service proposed by Red Ball between
Atlanta and Birmingham, on the one hand, and, on
the other the territory Red Ball now serves.”

114 M.C.C. 603
(App. 149)

114 M.C.C, 603
(App. 149)

114 Mx.c, 603
(Apo. 149)

10. “Clearly, Red Ball is in a better position than 114 '.C.c. 604

Herrin to render this service.”

(App. 150)

Breen

le

APPENDIX E

REPORT AND ORDER OF ICC IN HERRIN
APPENDIX G - PROTESTANTS EVIDENCE:

TRANSIT TIME STUDIES
Consolidated 114 M.C.C. 759 (App. 321)
Watson-Wilson Id. at 764765 (App.
326-327)

Gordons Id. at 768 (App. 330)
Mercury Freight Id. at 771 (App. 333)

West Id. at 773 (App. 335)

GFA Id. at 775 (App. 337)
*Campbell Sixty-Six Id. at 777 (App. 339)

Jack Cole-Dixie Id. at 778 (App. 340)
ETMF Id. at 780 (App. 342)
Transcon Id. at 782 (App. 344)
Roadway Id. at 783 (App. 345)
United Id. at 786 (App. 348)

Red Ball Id. at 787 (App. 349)
Ryder Id. at 788-791

(App. 350-353)

Appendix G_ sets forth the evidence of
opposing carriers, as summarized by the Exam-
iners. The further summary and evaluation of this
evidence by the Commission appears at i114 M.C.C.
599 (App. 129).

* Reference to data for “certain test periods” - dates and
duration unspecified.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0045%3A7. Public record. Not legal advice.