Before DANAHER, Senior Circuit Judge, MCGOWAN and TAMM, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 1977.CDC.113
Petitioner seeks review of the denial by the Interstate Commerce Commission of three orders, entered July 14, 1975, respectively denying applications by it as a motor contract carrier for temporary authority to carry between specified points for temporary authority to carry between specified points aerosol products, emergency temporary authority to carry furnaces, and emergency temporary authority to carry potting soil. (The distinction between temporary authority, on the one had, and emergency temporary authority, on the other, is that the former may be granted for periods up to 180 days, and the latter for 30 days or less, in each case to meet an immediate and urgent need which cannot be met by existing carrier service). These three applications were granted by orders successively entered on February 14, 1975, January 27, 1975, and February 12, 1975. They were all, however, subsequently vacated by orders entered March 5, 1975.
The reason for the vacation was, as the Commission stated it, that the Commission wished to await the outcome of pending proceedings directed to the question of whether the petitioner was exceeding the permanent authority held by it as a motor contract carrier. Petitioner's response to the vacation order was not to seek review of it, but to file a mandamus proceeding in a federal district court in California to require the Commission to process and dispose of its original applications for temporary authority. When the Commission, on April 30, 1975, entered an order deferring the consideration of all of the petitioner's pending applications for additional operating authority, including the applications of an emergency nature previously vacated, petitioner stipulated to the dismissal of the mandamus proceeding without prejudice, and sought review in this court of the April 30 order.
This court responded to that petition by issuing, on July 2, 1975, an order calling upon the Commission to show cause why it should not be directed to proceed with the processing of petitioner's applications. Petitioner's response to the show cause order was to inform the court somewhat belatedly that the Commission had on June 25 determined the petitioner's status, and on June 30 had vacated the order of April 30 under review. On July 14, 1975, the Commission acted to deny the three applications for temporary authority presently in issue. Apparently unaware of this fact, on July 18, 1975 this court nevertheless directed the Commission to process all of the pending applications. However, in view of what had actually taken place, that appeal was dismissed by agreement of the parties on November 7, 1975, on which date petitioner filed for review in this court of the three applications in issue.
The reason given by the Commission for denial of the aerosol application was that, if allowed, petitioner would be serving too many shippers consistent with its contract carrier status. The same reason was relied upon in the case of the furnace application, together with a finding that no showing had been made of urgent and immediate need. The potting soil application was denied solely for the last mentioned reason.
Petitioner urges upon us that the Commission erred in regarding the question of its status as a contract carrier as relevant to an application for temporary authority.
It insists that the only issue raised by such an application is the one of an immediate and urgent unmet need, and that the existence of such a need in all three cases had been established in the record upon which the Commission had initially granted all three such applications. To the extent that the Commission's ultimate denial rested upon the question of need, petitioner argues that the Commission must at least explain how, without any new evidence of record, it could rationally depart from its original finding of such need.
We do not find it necessary to address these contentions, for the reason that we consider this controversy no longer to be a live one. The record before us shows that, in the case of furnaces, the emergency temporary authority of 30 days had expired - and had presumably been fully utilized - before the order of vacation issued. *fn1 In the case of the potting soil emergency temporary authority of 30 days, all but 7 days had expired before the vacation order. In the case of the aerosol order, we note that the immediate and urgent need was first represented to exist in the application initially filed on November 21, 1974, was granted on February 14, 1975, and was presumably used until the vacation order on March 5, 1975. We cannot believe that over two years later, the immediate and urgent need, if such there was, has continued in being, or that this controversy has the present vitality requisite to invoke our intervention. ...