ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES. In an action remanded to the Court of Appeals from the Supreme Court, the orders of the Interstate Commerce Commission challenged in petitioner's petition for review are affirmed.
Before Meskill, Circuit Judge, and Dumbauld*fn* and Port,*fn** District Judges.
This action, now before us on remand from the Supreme Court, was initiated by Benmar Transport and Leasing Corp., a contract carrier seeking judicial review of certain orders of the Interstate Commerce Commission.*fn1 The orders appealed from are affirmed.
Although the rather convoluted procedural history of this case has been determined by the Supreme Court to be largely irrelevant to its proper disposition, a summary of that history is necessary to set the stage for today's decision.
On July 21, 1976, Consolidated Truck Service, Inc. filed with the Interstate Commerce Commission an application for authority to operate as a contract carrier by motor vehicle. See Section 203(a)(15) of the Interstate Commerce Act, 49 U.S.C. § 303(a)(15) (repealed October 17, 1978).*fn2 Specifically, Consolidated requested a permit to transport "such commodities as are dealt in by department stores," between certain listed locations, under a continuing contract with Jubilee Shops, Inc. of New Jersey, a retail merchandiser.
Although Benmar had previously handled all of Jubilee's trucking requirements, Jubilee supported Consolidated's application on the ground that Benmar was not authorized to provide the augmented service necessary to support the shipper's planned expansion into new lines of merchandise.*fn3 In its papers in opposition to Consolidated's application Benmar disagreed, contending that it was indeed authorized by permit to transport all the commodities that Jubilee shipped or could reasonably expect to ship in the future. Commission Review Board No. 1, evaluating the evidence in light of the criteria set out in Section 209(b) of the Act,*fn4 determined that a grant "would almost certainly divert traffic" from Benmar and that the evidence was not sufficient to demonstrate that the changing nature of Jubilee's requirements was a significant factor. Accordingly, Consolidated's application was denied by order dated May 12, 1977.
Consolidated filed a petition for reconsideration. Division 1, acting as an Appellate Division, reversed the order of the Review Board and granted the application, stating, in an order served October 14, 1977, that the changing character of Jubilee's requirements was a significant factor and that a denial of Consolidated's application would have an adverse effect upon Jubilee by burdening its product line expansion.*fn5 When Benmar's petition for reconsideration of the order of Division 1 was denied, Benmar filed a petition for judicial review in this Court.
Subsequent to that filing in this Court the Commission reopened the proceeding on its own motion to consider the issue of dual operations by Consolidated as both a common carrier and a contract carrier.*fn6 Such dual operations were approved in a modified order served January 27, 1978. After its petition for reconsideration of the Commission's modified order was denied on April 18, 1978, Benmar filed an amended petition for review in this Court.
Ruling that only the initial October 5th order of Division 1 was properly before us, we granted Benmar's petition, vacated the October 5th order and remanded the case to the Commission for further proceedings. The Supreme Court granted certiorari and reversed, holding that we had erred in refusing to consider the two Commission orders served on January 27, 1978, and April 18, 1978. United States v. Benmar Transport and Leasing Corp., 444 U.S. 4, 100 S. Ct. 16, 62 L. Ed. 2d 5 (1979) (per curiam). Pursuant to the directions of the Supreme Court we now shift our focus from the timing of the Commission's orders to their merit.
The only issue now remaining in the case is the propriety of the Commission's grant of Consolidated's application for contract carrier authority. Consolidated*fn7 and the Commission*fn8 take the position that the grant was reasonable, lawful and supported by substantial evidence and therefore must be upheld. Because we regard Benmar's claims to the contrary as lacking in merit, we affirm.
Our scope of review is narrow. The Administrative Procedure Act, 5 U.S.C. ...