The plaintiff asks this Court to set aside and annul certain orders of the Interstate Commerce Commission. The case came on for hearing January 21, 1965, on plaintiff's complaint and the defendants' joint answer. The Court heard oral argument. From the entire record this Court makes the following Findings of Fact:
1. Plaintiff is the holder of certificates issued to it by the Interstate Commerce Commission in Docket MC-115523, which among other things authorized plaintiff to transport certain fertilizers and fertilizer compounds between points in Washington in interstate and foreign commerce.
2. Defendants are the United States of America and the Interstate Commerce Commission. Clark Tank Lines Company, the holder of the certificate under attack in this proceeding, has not asked to intervene.
3. This action is brought by plaintiff under 28 U.S.C. §§ 1336, 1398, 2284, 2321 through 2325, and 5 U.S.C. § 1009, to set aside an order of the Commission dated September 19, 1961, in its Docket MC-115523, Sub No. 64, granting Clark Tank Lines Company certain rights.
4. On April 7, 1960, Clark Tank Lines Company of Salt Lake City, Utah, filed its application before the Interstate Commerce Commission. It was assigned Commission's Docket No. 115523, Sub No. 64, and set for hearing in Salt Lake City, Utah, on June 8, 1960. The plaintiff, together with others, indicated by letter an intention to oppose the application. The first hearing was postponed and later held November 9, 1960. At that hearing neither the plaintiff nor its co-protestants appeared, nor were they represented by counsel.
5. At the hearing counsel for the applicant amended the application to eliminate the interests of the plaintiff and its co-protestants in all respects except as to interstate and foreign movements of fertilizers and fertilizer compounds between points in Washington. The examiner, following the hearing, granted Clark Tank Lines Company a portion of the authority requested but did not grant authority between points in Washington. Exceptions were filed by Clark Tank Lines to the examiner's report. On September 19, 1961, Division 1 of the Commission increased the authority recommended by the examiner to include transportation of dry fertilizer and other related commodities 'from points in Washington to points in * * * Washington * * *.'
6. The certificate issued by the Commission became final on November 22, 1961. No further action took place in Docket MC-115523, Sub No. 64, until February 6, 1963, some fourteen months later. Then the plaintiff filed its petition for modification of the certificate and for reopening for further hearing. That petition was denied by Division 1 in an order of August 9, 1963. Thereafter, on October 3, 1963, the attorney for the plaintiff filed a petition for waiver of the Commission's Rule of Practice, Rule 101(e), which requires that motions for rehearing be filed within the thirty days prescribed. Plaintiff also filed its petition to change portion of the certificate issued as the result of misrepresentation and by mistake. The petition to waive Rule 101(e) was denied by Division 1 on January 17, 1964. This action was commenced on April 7, 1964.
7. The plaintiff asks that the Court set aside the order of the Commission granting the Clark Tank Lines authority to transport dry fertilizer and related commodities from points in Washington to points in Washington in interstate and foreign commerce. This is on the ground that there is not sufficient evidence in the record to support the order of the Commission. The plaintiff also asks that this Court require the Commission to set aside its orders of August 9, 1963, and January 17, 1964, denying its petitions for waiver of Rule 101(e) and to change a portion of the certificate issued as a result of misrepresentation and by mistake.
8. Plaintiff in its Petition and Bill in this Court sets out in paragraphs VI through IX, that prior to the hearing date of November 9, 1960, applicant's counsel called plaintiff's counsel by telephone and discussed an amendment to the pending application. The amendment as finally agreed between counsel was to eliminate the interests of plaintiff and its co-protestants. It is alleged that as a result of that agreement plaintiff did not appear at the November 9, 1960, hearing to protest.
9. The amendment was made as requested except that it did not eliminate the interstate and foreign movements between points in Washington. The examiner granted Clark certain authority but did not grant authority between points in Washington. Plaintiff's counsel alleges a notice of the amendment, which was not in complete compliance with counsel's out-of-court stipulation. He also alleges knowledge of the report of the examiner, which did comply with counsels' agreement. Plaintiff alleges no knowledge of the action of the Commission on the exceptions to the examiner's report until January 1963 when Clark was soliciting plaintiff's shippers. Thereafter plaintiff filed its petition for waiver of Rule 101(e) and for further hearings.
10. The allegations of the complaint appear in detail in the petition to change portion of the certificate, which petition was filed October 3, 1963. That petition is by reference incorporated in the petition to waive Rule 101(e).
11. The proceedings before the Commission, and the resultant order of September 9, 1961, do substantially affect the plaintiff.
12. Plaintiff's petition to waive Rule 101(e) was denied without hearing by the Commission. If the allegations are taken as true then plaintiff withdrew its protest and did not attend the hearing because of excusable negligence and inadvertence.
Upon this review we are directed by the applicable statutes to 'compel agency action unlawfully withheld or unreasonably delayed' and to 'hold unlawful and set aside agency action, findings and conclusions found to be * * * arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' (Administrative Procedure Act, § 10, Title 5 U.S.C. § 1009(e)). The petitioner here set forth in his application for waiver of Rule 101(e) and in his 'Petition to Change Portion of Certificate Issued as a Result of Misrepresentation and by Mistake' facts which, if found to be true, would require the Commission to reopen the proceeding before it in Docket MC-115523, Sub No. 64, for the purpose of permitting petitioner to adduce evidence in support ...