could not appropriately be described as a cellular or expanded plastic material or product. There was, therefore, ample support in the evidence for the findings of the Commission.
It is perfectly clear that the successive petitions of Northern Valley for rehearing or reconsideration were grossly tardy under the Commission's general rules of practice, 49 C.F.R. § 1.101(e). Failure to apply within the time allowed by the terms of the rule could only be excused for good cause shown. Northern Valley made no effort to disclose such cause, if it existed, in any of its said petitions until that of November 6, 1959, to which it annexed, as Appendix A, a letter from the National Classification Board, dated February 7, 1958, to plaintiff's attorney, which it stated had not been presented at the hearing before the Examiner. Northern Valley argued in this petition (of November 6, 1959) that it believed that the content of that letter would confirm petitioner's belief that the proper classification of cellulose acetate wadding was as a plastic article n.o.i., Item 77655 of the National Motor Freight Classification No. A-3, American Trucking Associations, Inc., Agent, M.F.I.C.C. No. 8. Accordingly, Northern Valley sought reconsideration by the Commission of the cellulose acetate wadding under the new Item 77655. However, we are referred by the defendants to a subsequent letter to Northern Valley's counsel from the Board, dated March 17, 1958, captioned 'Re: Cellulose Acetate Wadding', which stated in part as follows:
'In our letter of February 7, which was in reply to your original inquiry, we stated we considered the ratings in item 77655 covering Plastic Articles, NOI to be applicable and we stated our supporting reasoning therefor. After receipt of your inquiry of March 6, we reopened the matter for further study and have found our advice of February 7 to be in conflict with previously issued advices to others concerning very similar materials. Therein we held the rating for Dry Goods, NOI to be applicable; and this is to advise that on reconsideration of all provisions named in the Classification having any possible application to this commodity, we consider the ratings for Dry Goods, NOI to be applicable, and therefore cancel our advice of February 7.'
Subsequent to the letter last referred to, the Board adopted Supplement No. 17 above referred to, which revised Item No. 20740 of its Classification No. A-4, to cover only cellulose wadding n.o.i. consisting of other than synthetic fibers. Defendants concede, therefore, that as of the present, in view of the Supplement, the traffic under consideration would no longer fall within the description of Item No. 20740, and recognize the possibility that the commodity might now be within Item 74635-B. This classification change, however, was effected almost six months after the Commission's Division 3 report of September 24, 1958. This subsequent change in classification would not, in our opinion, constitute newly discovered evidence and, consequently, would not constitute good cause for the tardiness of plaintiff's applications for rehearing.
Administrative rehearings are not matters of right but of pleas to discretion. The discretion to be invoked is that of the body making the order, not that of a reviewing body. Interstate Commerce Commission v. City of Jersey City, 1944, 322 U.S. 503, 64 S. Ct. 1129, 1134, 88 L. Ed. 1420. At page 514 of the opinion in that case, at page 1134 of 64 S. Ct., we are reminded that, if litigants were entitled to rehearings as a matter of law after the order of the administrative body upon the record before the examiner, because of new circumstances arising or facts discovered between the examiner's report and the commission's hearing on exceptions thereto, 'there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.'
We find so abuse of discretion by the Commission. We are, therefore, without authority to interfere with its actions. See W. J. Dillner Transfer Co. v. United States, D.C.Pa.1951, 101 F.Supp. 506, affirmed 344 U.S. 883, 73 S. Ct. 180, 97 L. Ed. 683.
The complaint will be dismissed for the reasons hereinabove stated. An appropriate order may be presented.
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