The opinion of the court was delivered by: FISHER
This is an action by a motor carrier, National Freight, Inc. of Vineland, N.J. (hereinafter National), to set aside, enjoin and annul an order of the Interstate Commerce Commission denying National's application for authority to transport meats and meat products after a hearing examiner had determined that such authority should have been granted.
A statutory Three-Judge Court was empaneled and statutory jurisdiction has been established pursuant to 28 U.S.C. Secs. 1336, 1398, 2284, 2321-2325 and 49 U.S.C. Sec. 305(g) and (h).
National seeks a certificate of public convenience and necessity under the Interstate Commerce Act, 49 U.S.C. Sec. 307, for authority to transport, over irregular routes, meats and meat products from the facilities of two shippers at Lincoln, Nebraska and Denver, Colorado to points in the mid-Atlantic and New England states. Two shippers, American Stores Packing Co., a division of Acme Markets, Inc. located at Lincoln, Nebraska, and United Packing Co., a division of Food Fair Stores, Inc. located at Denver, Colorado, requested National's services and supported its application because they were dissatisfied with rail "piggyback" service.
National alleges that the Commission's disposition of its application, styled as National Freight, Inc., Extension-Meats, Docket No. MC-2860 (Sub. No. 87), has been arbitrary, capricious and an abuse of administrative discretion. National contends that:
(1) The actions of the Commission are unsupported by substantial evidence on the administrative record viewed as a whole as required by Section 10 of the Administrative Procedure Act, 5 U.S.C. Sec. 706;
(2) The Commission's denial of National's application lacks rational conclusions supported by adequate findings as required by Section 8(b) of the Administrative Procedure Act, 5 U.S.C. Sec. 557(c);
(3) The Commission erroneously interpreted the legal standards necessary to determine the public convenience and necessity under the Interstate Commerce Act, 49 U.S.C. Sec. 307.
National filed its application with the Commission on October 6, 1970, which was then referred to a hearing examiner. A hearing was held on July 15, 1971 in Denver, Colorado. At the conclusion of the hearing, the examiner ruled that the application should be granted,
because to him the application seemed to present no substantial difficulties. Pursuant to 49 C.F.R. Sec. 100.247(i) the hearing examiner directed National's counsel to submit a proposed report and order.
Counsel complied with this direction on August 9, 1971. On August 31, 1971 the hearing examiner issued a report and recommended order that the application be granted.
However, on March 23, 1972 the report and order of Review Board Number 3 of the Commission
reversed the hearing examiner's determination and recommended that the application be denied. The Review Board found the hearing examiner's statement of facts to be "substantially correct" and only modified them slightly.
It is this six-page report that National contests as error by the Commission.
On May 1, 1972 National petitioned the Commission for reconsideration of the Review Board's decision. National also requested to reopen the administrative record to admit the verified statement of its vice-president, Edmund T. De Felippis. On July 18, 1972 Division 1 of the Commission, acting in an appellate capacity, denied National's requests and affirmed the decision of the Review Board. In its one-page order the Commission specifically noted that the De Felippis statement, even if received, would not "warrant a result different than that already reached by the Board".
National petitioned the Commission for further review which was denied on August 29, 1972.
The scope of judicial review of an order of the Commission is restricted. This Court can only consider whether the action of the Commission is supported by "substantial evidence" on the record viewed as a whole. Substantial evidence is "enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury ". Metropolitan Shipping Agents of Ill., Inc. v. United States, 342 F. Supp. 1266, 1268 (D.N.J. 1972) and cases cited therein. The Commission's order carries a presumption of validity because it is the product of expert judgment. Metropolitan, supra at 1268, citing Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 513, 88 L. Ed. 1420, 64 S. Ct. 1129 (1944). When reviewing an application for a certificate of public convenience and necessity concerning extension of services, this Court cannot substitute its view concerning what should be done for that of the Commission. United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 536, 90 L. Ed. 821, 66 S. Ct. 687 (1946). That this Court might have reached a different result is irrelevant if the Commission's order is based upon adequate findings which are warranted in the law and facts under review. Metropolitan, supra at 1268 and cases cited therein. Finally, the requirement that the Commission's decision be fully supported by adequate findings "is satisfied if the report of the Commission, ...