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March 6, 1967

Resort Bus Lines, Inc.
Interstate Commerce Commission, United States of America, and Mountain View Coach Lines, Inc.

The opinion of the court was delivered by: KAUFMAN


Resort Bus Lines, Inc. (Resort) seeks to have certain orders of the Interstate Commerce Commission (Commission) set aside and enjoined. *fn1" The orders in question granted the application of Mountain View Coach Lines, Inc. (Mountain) for a certificate of public convenience and necessity, authorizing it to conduct interstate operations between Poughkeepsie, New York and Millbrook, New York, a distance of approximately 17 miles, and to serve all intermediate points.

Before we consider Resort's contentions, it is necessary to summarize briefly the prior proceedings. In February 1964, Mountain filed its application with the Commission. At that time, Mountain was conducting authorized interastate operations between Millbrook and Poughkeepsie, and licensed interstate activities between Poughkeepsie and various points. By virtue of an operating agreement with Hudson Transit Lines, Inc. (Hudson), Mountain was already conducting interstate operations between Poughkeepsie and New York City via New Jersey. *fn2" Passengers desiring to travel by bus from Millbrook to New York City would buy a ticket from Mountain for the trip from Millbrook to Poughkeepsie; upon arriving in Poughkeepsie, they would be required to change buses and purchase a second ticket for the trip from Poughkeepsie to New York City. This inconvenience to the traveling public could not be eliminated so long as Mountain held only intrastate authority to operate between Millbrook and Poughkeepsie, because Mountain's intrastate authority could not be joined with Hudson's interstate authority to provide one whole and uninterrupted service. Mountain's purpose, therefore, in seeking the interstate authority was to enable it to provide through and unbroken service from Millbrook to New York City, thus eliminating the discommodious and bothersome aspects inherent in requiring passengers to purchase 2 tickets and change buses in Poughkeepsie for the trip to New York City.

 Accordingly, a hearing on Mountain's application was held before a Hearing Examiner in July 1964. Resort, which operated a bus route that passed through Millbrook, was the only protestant. The Hearing Examiner made his report recommending that Mountain's application be approved and Resort thereupon filed exceptions. In December 1964, Operating Rights Review Board No. 3 reversed the Examiner and denied Mountain's application. Mountain then proceeded to file a petition for reconsideration, but the Board's decision was summarily affirmed in April 1965 by Division 1 of the Commission Acting as an Appellate Division. *fn3" When Mountain petitioned the Appellate Division to reconsider its order, the proceedings were reopened, and in October 1965 the Appellate Division after further reflection concluded that the interstate authority sought by Mountain was required by the public convenience and necessity. Mountain View Coach Lines, Inc., Extension - Poughkeepsie, 100 M.C.C. 24 (1965). Subsequent petitions by Resort requesting the Appellate Division to reconsider its decision were denied, and in August 1966 a certificate of public convenience and necessity was issued to Mountain. *fn4"

 With this background, we proceed to consider the contentions raised. At the outset, it is urged that the Appellate Division lacked jurisdiction to reconsider and reverse its original decision and order. While it is true, as Resort contends, that no section of the Interstate Commerce Act (Act) states, in haec verba, that an Appellate Division may reconsider its own actions, we believe that it has the power to do so, at least prior to the time that an actual certificate of convenience and necessity has been issued.

 The provisions of the Act and sound rationale lead us to this conclusion. 49 U.S.C. § 17(1) provides that the Commission may divide itself into divisions, and "may designate one or more of its divisions as appellate divisions." This authority was granted in order to spare the full Commission the burden of considering every application for review. *fn5" Section 17 goes on to state that "any application [for rehearing, reargument or reconsideration], if the decision, order or requirement was made by the Commission, shall be considered and acted upon by the Commission." 49 U.S.C. § 17(6). And, other sections of the Act provide that "The Commission shall be authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper," 49 U.S.C. § 16(6), and that Commission orders shall continue in force "unless the same shall be suspended or modified or set aside by the Commission." 49 U.S.C. § 321(b).

 These provisions have been interpreted as giving the Commission continuing jurisdiction to suspend, reconsider or modify its orders, see e.g., Alamo Express, Inc. v. United States, 239 F. Supp. 694 (W.D. Tex.), aff'd per curiam, 382 U.S. 19, 86 S. Ct. 83, 15 L. Ed. 2d 14 (1965), United States v. Interstate Commerce Commission, 221 F. Supp. 584 (D.D.C. 1963), even in the absence of a petition for reconsideration, see Sprague v. Woll, 122 F.2d 128 (7th Cir. 1941), cert. denied, 314 U.S. 669, 86 L. Ed. 535, 62 S. Ct. 131 (1942). And the Supreme Court has stated that "the certificate is the final act or order that validates the operation. Until its form and content are fixed by delivery to the applicant, the power to frame it in accordance with statutory directions persists." United States v. Rock Island Motor Transit Co., 340 U.S. 419, 448, 95 L. Ed. 391, 71 S. Ct. 382 (1951).

 We can see no reason why, if the Commission possesses this continuing jurisdiction, an Appellate Division doing the work of the Commission at least should not have the same power. The Appellate Division is merely sitting in lieu of the full Commission for reasons of administrative efficiency, in the manner that a panel of a Court of Appeals, instead of the entire contingent of judges of the Court, is authorized to decide appeals. Moreover, it is in the best interests of judicial economy and agency responsibility to allow the Appellate Division to reconsider its orders, rather than to compel the losing party to seek immediate review in the courts. *fn6" Thus, both logic and sound policy require that the Appellate Division be empowered to reconsider its own actions. We therefore reject Resort's jurisdictional argument. *fn7"

 Resort also asks us to set aside the Commission's orders because it excluded evidence of Resort's intrastate operations in determining whether the public convenience and necessity requirements had been met. An examination of the record, however, indicates that these operations were carefully considered at every stage of the proceedings. For example, at the hearing before the Examiner, Resort offered evidence of its pending application before the New York Public Service Commission requesting intrastate authority to operate between Millbrook and New York City. The Examiner received this evidence over the objection of Mountain. And the Examiner's report, recommending approval of Mountain's application, made reference to Resort's application to the Public Service Commission.

 We also note that evidence of Resort's intrastate activities was considered by the Review Board, and, indeed, one of the reasons assigned for its reversal of the Examiner's recommendation was that Resort might soon be in a position (because of its then pending proceedings before the New York Public Service Commission) to provide through service from Millbrook to New York City. Moreover, the Appellate Division, in reversing the Review Board, also took cognizance of Resort's intrastate operations, stating:

Resort operates only two buses; and, as a practical matter, can serve Millbrook only in conjunction with an essentially long-haul interstate route between Pittsfield [Massachusetts] and New York City. These factors, in our opinion, would preclude the rendition of service responsive to the special needs of the local communities involved. Moreover, its service would be of little, if any appreciable value to the traveling public at the proposed intermediate points. Applicant [Mountain], on the other hand, contemplates a service particularly well adapted to the needs of the Millbrook area, and, in our opinion, it should be granted the limited route extension which it seeks. (100 M.C.C. at 27.)

 It is clear to us that the Appellate Division considered the possibility that Resort might be granted intrastate authority between Millbrook and New York City. It concluded, nevertheless, that even if this authority were granted, the public convenience and necessity which it was compelled to appraise required that Mountain's application be granted.

 Resort's final argument is that we must enjoin the Commission's orders because "on the record as a whole there is [not] substantial evidence to support [the] agency findings." Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 95 L. Ed. 456, 71 S. Ct. 456 ...

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