Opposition — Pittsburgh & New England Trucking Co. v. United States

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Supreme Court, Lar |

FILED

No. 78-235 | SEP 22 1978

ETT IK., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

PITTSBURGH & NEW ENGLAND TRUCKING Co., ETC.,

PETITIONER

V.

THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

MEMORANDUM FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WaveE H. McCRrEE, JR.,

Solicitor General, —

Department of Justice,

Washington, D.C. 20530.

MARK L. EVANS,

General Counsel,

FREDERICK W. Reap, III,

Associate General Counsel,

ROBERT D. JONES,

Attorney,

Interstate Commerce Commission,

Washington, D.C. 20423.

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-235

PITTSBURGH & NEW ENGLAND TRUCKING CO., ETC.,

PETITIONER

Vv.

THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

MEMORANDUM FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

At issue is whether the court of appeals properly

dismissed a petition for review because petitioner failed to

exhaust clearly mandated administrative remedies.

Petitioner, a common carrier by motor vehicle, filed a

15l-part gateway elimination application pursuant to the

Interstate Commerce Commission’s “gateway elimination”

rules.' The application was filed without ihe evidence

‘Under what was termed the “gateway elimination” policy, the

Commission agreed to consider applications from trucking companies

for direct service authorizations between points that the companies

had previously served only indirectly. Gateway Elimination Decision,

119 M.C.C. 530. 49 C.F.R. 1065.1. This Court upheld the gateway

elimination rules in Thompson Van Lines, Inc. v. United States, 423

U.S. 1041, affirming 399 F. Supp. 1131 (D. D.C.).

(1)

required by the gateway rules. Petitioner subsequently

attempted to file late evidence, but it was rejected by the

agency. Because the record did not contain the supporting

evidence required by the gateway rules, the application

was dismissed. Petitioner then filed a petition for

reconsideration, which a three-member division of the

Commission denied in August 1975.

Petitioner sought judicial review in the United States

Court of Appeals for the Third Circuit. During the

pendency of the petition for review, the Commission

issued a policy statement which provided for the

acceptance of previously tendered late-filed evidence. As a

result, the Commission, subject to the court’s approval,

reopened petitioner’s application for acceptance and

consideration of the late-filed evidence. The court of

appeals then granted the Commission’s unopposed

motion to remand the case.

The reopened proceeding was assigned to a Commis-

sion employee review board for initial decision. After

considering the additional evidence of record, the

employee review board denied petitioner's application by

an order served in October 1976 (Pet. App. B).

Instead of seeking Commission consideration of the

employee board’s order, petitioner filed a petition for

judicial review. On May 3, 1978, the court of appeals

granted the Commission’s motion to dismiss for failure to

exhaust administrative remedies (Pet. App. A).

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or any court

of appeals. Accordingly, further review is not warranted.

1. It is well settled that judicial review of administrative

agency decisions must be postponed until the available

administrative remedies have been exhausted. Federal

Communications Commission v. Schreiber, 381 U.S. 279,

296; Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

41, 50-51. Section 17(9) of the Interstate Commerce Act,

24 Stat. 385, as amended, 49 U.S.C. 17(9), specifically

bars judicial review of employee board orders, unless a

petition for reconsideration “shall have been made and

Shall have been denied, or after rehearing, reargument,

or reconsideration otherwise disposed of, by the Com-

mission or an appellate division.” To implement this

Statutory mandate, the Commission’s rules of practice

(49 C.F.R. 1100.101(a)(2)) explicitly provide that orders

of employee review boards are not administratively final:

Decisions of an employee board, whether original

or on review, are not administratively final. Such

employee board decisions shall be subject to review

by an appropriate appellate division of the Commis-

sion upon the filing of a timely petition in accordance

with these rules of practice. (emphasis added).

Accordingly, the court of appeals lacked jurisdiction to

‘review the decision and correctly dismissed the petition

for review. See McGee v. United States, 402 U.S. 479:

Federal Power Commission v. Colorado Interstate Gas

Co., 348 U.S. 492, 497-501.

2. Petitioner contends that to exhaust administrative

remedies would have been useless in this case, because

the Commission had previously (in August 1975) denied

a petition for reconsideration of its initial decision

to reject the late-filed evidence (Pet. Br. 10). But

the fact that reconsideration of the prior order was

unsuccessfully sought is entirely irrelevant to the

reviewability of the October 1976 order at issue here. The

instant order of the employee board was based on the

merits of the record as augmented by the late-filed

evidence and reflected wholly different considerations

than the 1975 order. That ruling did not reach the merits

and merely dismissed the application for lack of evidence.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

WADE H. McCREE, JR.,

Solicitor General.

MARK L. EVANS,

General Counsel,

FREDERICK W. READ, III,

Associate General Counsel,

ROBERT D. JONES,

Attorney,

Interstate Commerce Commission,

Washington, D.C. 20423.

SEPTEMBER 1978.

DOJ-1978-08