Certiorari granted; 582 F.2d 246, reversed.
PER CURIAM.
This case is here on certiorari to the United States Court of
Appeals for the Second Circuit, which set aside an order of the
Interstate Commerce Commission authorizing respondent Consolidated
Truck Service, Inc., to begin contract carrier service in
competition with respondent Benmar Transport & Leasing Corp.
The order, issued October 5, 1977, was defective because it lacked
the statutorily required finding that it was consistent
"'with the public interest and with the national transportation
policy,' [§ 210] of the Interstate Commerce Act, 49 U.S.C. § 310
[now 49 U.S.C. § 10930(a) (1976 ed., Supp. II)]."
Benmar Transport & Leasing Corp. v. ICC, 582 F.2d
246, 248 (1978).
The case was argued in the Court of Appeals on July 17, 1978,
and decided August 16, 1978. In reaching its decision,
Page 444 U. S. 5
the Court of Appeals refused to consider two subsequent
Commission orders that remedied the defect. The first of these
orders, issued with the consent of all interested parties almost
six months before oral argument in the Court of Appeals, reopened
the administrative proceedings and made the finding required by 49
U.S.C. § 310. The second, issued on April 18, 1978, denied
respondent Benmar's petition for administrative review of the
former order. This denial became the Commission's final
administrative order, and had the effect of reaffirming its earlier
decision to grant Consolidated's application for a contract carrier
permit. Although the question briefed by the parties in the Court
of Appeals was whether the order of April 18, 1978, was supported
by the evidence, the Court of Appeals declined to examine the
question on the ground that the only order properly before it was
the defective order of October 5, 1977. It thus vacated the order
and remanded the case for further proceedings.
We grant the petition of the United States and the Commission
and reverse the judgment of the Court of Appeals. In
American
Farm Lines v. Black Ball Freight Service, 397 U.
S. 532 (1970), this Court held that the Commission's
broad powers to "reverse, change, or modify" its decisions
"are plainly adequate to add to the findings or firm them up as
the Commission deems desirable, absent any collision or
interference with the District Court."
Id. at
397 U. S. 541.
(The applicable statute then provided for review of orders of the
Commission by a three-judge District Court, rather than by the
Court of Appeals.) Here the Commission's action did not interfere
in any manner with the proceedings in the Court of Appeals, and the
Commission acted before that court was ready to hear arguments on
the merits and before it received the record. All parties concurred
in the Commission's decision to reopen the proceedings and to hold
judicial review in abeyance pending the Commission's final
disposition of Benmar's petition for administrative review. The
position of the
Page 444 U. S. 6
parties -- both those who prevailed and those who lost before
the Commission -- is convincingly demonstrated by the fact that no
party has filed a brief in support of the decision reached by the
Court of Appeals.
As the Court said in
American Farm lines, supra,
"[t]he concept 'of an indivisible jurisdiction which must be all
in one tribunal or all in the other may fit' some statutory
schemes, . . . but it does not fit this one."
397 U.S. at
397 U. S. 541.
After the abolition of the "forms of action" in the early common
law, it was said that "[t]he forms of action we have buried, but
they still rule us from their graves." F. Maitland, The Forms of
Action at Common Law 2 (1936). Orderly rules of procedure are
necessary in order that appellate review may be had of agency
findings, but empty formalities devoid of either substantive or
procedural benefit have no place in the normal scheme for
administrative review unless Congress chooses to place them there.
Here Congress has quite clearly not chosen to impose such virtually
meaningless requirements as the Court of Appeals insisted upon.
* The judgment of
the Court
Page 444 U. S. 7
of Appeals is inconsistent with the spirit which animated
American Farm Lines v. Black Ball Freight Service, supra,
and is therefore
Reversed.
* The dissenting opinion makes the bald statement that
"[t]he ICC simply ignored the time limits established by the
Court of Appeals, and thereby prevented judicial review altogether.
The Court of Appeals was not ready to hear argument, and had not
received the record solely because the ICC did not deign to comply
with the scheduling orders of the court."
The opinion of the Court of Appeals,
Benmar Transport &
Leasing Corp. v. ICC, 582 F.2d 246 (1978), lends no support to
this statement. Respondent Benmar petitioned the court to set aside
the Commission's order, but consented along with other interested
parties to the reopening of the Commission proceedings before the
record had been filed with the Court of Appeals or oral argument
heard by that court. After the Commission completed these
proceedings, it issued its final order of April 18, 1978 -- an
order which was reviewable by the Court of Appeals pursuant to 28
U.S.C. §§ 2341-2349. The Court of Appeals thus was not deprived of
its jurisdiction over this dispute. Rather, for no apparent reason
other than to insist that the parties comply with an "empty
formality," the Court of Appeals stated in its opinion that,
"when an agency seeks to reconsider its action, it should move
the court to remand or to hold the case in abeyance pending
reconsideration by the agency."
582 F.2d at 248. If such action were necessary in order to avoid
genuine interference "in any manner with the proceedings in the
Court of Appeals,"
supra at
444 U. S. 5, we
would have a different case. But since we conclude that there was
no such interference, the mere fact that application for reopening
was not made to the Court of Appeals was not fatal when all
interested parties consented to such reopening.
See American
Farm Lines v. Black Ball Freight Service, 397 U.
S. 532 (1970).
MR. JUSTICE MARSHALL, dissenting.
The Court today summarily reverses the judgment of the United
States Court of Appeals for the Second Circuit setting aside an
order of the Interstate Commerce Commission which concededly lacked
a statutorily required finding. The Court takes this action because
of two subsequent orders which the Commission issued after the
petition for review had been filed with the Court of Appeals
without seeking the permission of that court or taking any of the
proper procedural steps. I dissent.
Since the procedural timetable involved in this case is
important to the issue presented, it is necessary to set out more
fully the proceedings below. Respondent Benmar Transport &
Leasing Corp. filed a petition to review the order of the ICC with
the Court of Appeals on January 13, 1978. There were no petitions
for reconsideration still pending at that time. Thereafter, counsel
for Benmar notified the ICC that the order was patently defective
because of the lack of a statutorily required finding. The ICC, on
its own motion, reopened the administrative proceedings on January
27, 1978, and made the necessary statutory finding. The parties
then filed a motion in the Court of Appeals for an extension of
Page 444 U. S. 8
time in which to file the record and briefs, and an extension
was granted until March 8, 1978. Benmar filed an administrative
petition for reconsideration and for reopening the ICC proceedings
for receipt of new evidence on February 27, 1978. The reply to this
petition was not filed with the ICC by respondent Consolidated
Truck Service, Inc., until March 16, 1978 -- well after the
deadline for filing the record and briefs with the Court of
Appeals. Meanwhile, on March 7, 1978, the day before the record and
briefs were due to be filed with the court, the ICC moved to have
further judicial proceedings held in abeyance pending the
Commission's disposition of Benmar's petition. Before the Court of
Appeals could rule on this motion, the Clerk of that court was
informed by Benmar's counsel that, as an alternative to the motion
to hold the action in abeyance, Benmar intended to withdraw the
petition for judicial review subject to reinstatement within 30
days after the disposition of the administrative petition. Benmar
and the ICC attempted to draft a stipulation to that effect, but no
stipulation was ever filed with the court. On April 18, 1978, the
ICC denied Benmar's petition for reconsideration, thus making the
January 27 order final. Benmar then filed an amended petition for
judicial review, and a new schedule for filing the record and
briefs had to be established by the court.
In light of this procedural history, it is astounding that the
majority can assert that
"the Commission's action did not interfere in any manner with
the proceedings in the Court of Appeals, and the Commission acted
before that court was ready to hear arguments on the merits and
before it received the record."
The ICC simply ignored the time limits established by the Court
of Appeals, and thereby prevented judicial review altogether. The
Court of Appeals was not ready to hear argument, and had not
received the record solely because the ICC did not deign to comply
with the scheduling orders of the court. The Commission did not
even bother to move for
Page 444 U. S. 9
a second extension. Such actions by a litigant should not be
condoned by this Court.*
The case upon which the majority relies so heavily,
American
Farm Lines v. Black Ball Freight Service, 397 U.
S. 532 (1970), is not controlling. In that case, there
was a multiparty proceeding before the ICC. Some carriers filed
petitions for reconsideration before the Commission, but, while
those petitions were pending, other carriers filed for judicial
review. T he District Court temporarily restrained operation of the
ICC's original order, but did not affect the pending administrative
petitions. For those parties whose petitions were pending before
the Commission, there was "no final action," and the ICC retained
"jurisdiction to
complete the administrative process."
Id. at
397 U. S. 541
(emphasis added). It as for this reason that "both tribunals have
jurisdiction" of the matter.
Ibid., quoting
Wrather-Alvarez Broadcasting, Inc. v. FCC, 101
U.S.App.D.C. 324, 327, 248 F.2d 646, 649 (1957). This Court
stressed, however, that the Commission "did not act inconsistently"
with the court, but rather had acted "in full harmony with the
court's jurisdiction." 397 U.S. at
397 U. S.
541-542.
This concurrent jurisdiction concept is inapplicable in the
present case. At the time the petition for judicial review was
filed, no petitions for reconsideration were pending before the
ICC. The administrative proceedings were complete, and the
Page 444 U. S. 10
order was final as to all parties. In addition, as already
noted, the ICC here did not act in full harmony with the
jurisdiction of the Court of Appeals. Instead, the Commission,
through its actions, simply forced the court to forgo the proper
exercise of its jurisdiction until the ICC and the other litigants
decided for themselves that they would file the record and briefs.
The decision in
American Farm Lines was not meant to give
the Commission the power to stall judicial review. Contrary to the
assertions of the majority, preventing the court from being
effectively deprived of jurisdiction through the willful actions of
litigants ignoring proper scheduling orders hardly constitutes
"empty formalities." Since this Court today encourages the ICC to
interfere with the proper exercise of jurisdiction of the Court of
Appeals, I dissent.
* In light of the conceded facts that after one extension the
record and briefs were to be filed with the Court of Appeals by
March 8, 1978, and that the ICC did not even render its revised
final order until April 18, 1978, much less file the record and
briefs, it does not require specific language in the lower court's
opinion for this Court to be aware of the necessary conclusion that
judicial review was delayed by the actions of the Commission. The
majority's repeated assertion that there was no interference with
the proceedings in the Court of Appeals simply ignores the
procedural history below. The fact that Benmar consented to the
ICC's actions does not change the fact that these litigants, like
all other litigants, owe an obligation to the court not to delay
judicial proceedings.