United States v. Benmar Transport and Leasing Corp. ( 1979 )

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, 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 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 Ben-mar’s petition for administrative review. The position of the 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 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 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 18,11978 — 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 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).