The opinion of the court was delivered by: WORTENDYKE
This case presents a threshold question respecting the jurisdiction of this Court to review the propriety of a procedural step taken by the Interstate Commerce Commission in entertaining an application for a certificate of public convenience and necessity, applied for by an interstate motor carrier. There is also presented, assuming the existence of jurisdiction in this Court, the further question whether in view of the provisions of Section 205 of the Act, 49 U.S.C.A. § 305(a), the Commission may refer to an Examiner, instead of to a joint board, a two-fold application for a certificate, one aspect of which is the proposed operation between less than three States, and the other aspect of which contemplates its operation of tours throughout more than three States.
The application was made upon a form provided by the Commission and approved by the Bureau of the Budget, entitled 'Application for motor carrier certificate or permit'. This form is also known as Form BMC 78-(48 CFR 7.78), and has been in use by the Commission for the purpose stated in the caption thereof for several years. On page 1 of this form is set forth the name and address of the applicant and the statement that applicant seeks appropriate authority to institute a new operation as a common carrier by motor vehicle in interstate or foreign commerce over (A) Regular and (B) Irregular routes, in the transportation of passengers and their baggage and express in the same vehicle with passengers 'between (A) Maplewood, New Jersey and New York, New York, as follows: See Appendix 'E' attached (B) Special round-trip operations beginning and ending at points shown in Appendix 'G' and extending to points shown in Appendix 'F'.'
The plaintiff in this action is an interstate motor carrier of passengers, operating under the benefits of the 'grandfather clause' of the Act since prior to the adoption of the Motor Carrier Act, between points in western Essex County, New Jersey, and New York City in the State of New York, and applicant is, or will become, a competitor of the plaintiff if the application referred to is granted by the Commission.
The applicant has duly applied for leave, and has been granted permission to intervene in this case.
On April 11, 1960, intervenor's application was filed with the Commission and published on April 20, 1960 in the Federal Register, with notice of assignment for hearing on May 23, 1960, before Examiner Dallas B. Russell.
On May 16, 1960, the Commission overruled plaintiff's petition for reconsideration. Plaintiff thereupon petitioned the Commission for reconsideration of the order overruling its last prior petition, and otherwise objected to the conduct of the hearing before the Examiner, but without success. By its order dated May 24, 1960, the Commission denied plaintiff's petitions for reconsideration of the hearing order of reference 'for the (stated) reason that, in the absence of direct fraud or deception, as here, the assignment of this application before an Examiner for hearing was proper and in accordance with the applicable statute.'
In the present action the complaint, after prayer for the issue of process and the convocation of a three-judge court in accordance with the provisions of 28 U.S.C. § 2284, with allegations of irreparable damage, seeks to enjoin, set aside, annul and suspend the Commission's respective orders of April 15, May 16 and May 24, 1960, and to enjoin the Commission and its Examiner from further action pursuant to those orders, and from continuing the hearing upon the intervenor's application commenced before the Examiner.
Plaintiff's application for preliminary injunctive relief was brought on upon due notice and argued before a three-judge court duly constituted in compliance with the statute, on June 14, 1960. Upon the same hearing argument was also presented on return of the motion of the United States of America and Interstate Commerce Commission to dismiss the complaint for failure to state a claim upon which relief can be granted, and for lack of jurisdiction in this Court to adjudicate the propriety of the orders of the Commission which the plaintiff seeks to invalidate at this time.
The jurisdiction of this Court to review any action of the Interstate Commerce Commission derives from 28 U.S.C. § 1336 and Ch. 157 of the same Title ( §§ 2321-2325).
Plaintiff also invokes the provisions of 5 U.S.C.A. § 1009 (The Administrative Procedure Act).
The orders which plaintiff would have this Court review are administrative and procedural. They do not impose an obligation, deny a right, or fix some legal relationship as a consummation of administrative process. Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948, 333 U.S. 103, 68 S. Ct. 431, 92 L. Ed. 568. Until the completion of the proceedings before the Commission there is no justification for judicial intervention. Aircraft & Diesel Equipment Corp. v. Hirsch, 1947, 331 U.S. 752, 67 S. Ct. 1493, 91 L. Ed. 1796; Bustos-Ovalle v. Landon, 9 Cir., 1955, 225 F.2d 878.
It is the contention of the plaintiff in this action that the assignment of the intervenor's application for hearing to an Examiner is in direct violation of 49 U.S.C.A. § 305(a)
in that intervenor's proposed operation as a motor carrier involves 'not more than three States' and that therefore intervenor's application was required to be referred to a joint board and was precluded from reference to an Examiner. Subdivision (h) of the same section provides that all provisions of Section 17 of Title 49 'shall apply to all proceedings under this chapter (Ch. 8).'
It is apparent, therefore, and so conceded by all parties to these proceedings, that the Commission is required by 49 U.S.C.A. § 305(a) to refer an application for a certificate of public convenience and necessity to a joint board when the proposed operations of the applicant involve not more than three States. Under other circumstances, the application may be referred to an Examiner at the option of the Commission.
The preliminary question presented by the motion of the defendants to dismiss, requires an answer to each of the following questions, namely: (1) does intervenor's pending application to the Commission disclose intervenor's proposal to conduct the operations for which it seeks permission in more than three States? and (2) is the Commission's order assigning ...