Global Van Lines, Inc., Wheaton Van Lines, Inc., and Alliedvan Lines, Inc., Petitioners, v. Interstate Commerce Commission and United States of America,respondents, 709 F.2d 11 (5th Cir. 1983)

Jane Lind Downey, Arlington, Va., for American Movers Conference.

Laurence H. Schecker, Acting Gen. Counsel, I.C.C., for I.C.C.

Robert B. Nicholson, William J. Roberts, Dept. of Justice, Washington, D.C., for United States.

Ernest E. Gallego, Ronald L. Hartman, Glendale, Cal., for Bekins Van Lines Co.

Petitions for Review of Orders of the Interstate Commerce Commission.

Before RUBIN, GARZA and WILLIAMS, Circuit Judges.

ON PETITION FOR REHEARING

PER CURIAM:

In response to the petition for rehearing, the following substitutions are made in the opinion published at 704 F.2d 829.

In Part I, the second sentence of the first paragraph and footnote 1 are withdrawn. The fourth sentence of that paragraph is revised to read as follows: "In addition to other changes, the Motor Carrier Act lifts a number of the restrictions on the operations of motor contract carriers in order to make that part of the industry more competitive.¹ 

The last two sentences of the first paragraph of Part I are withdrawn, so that the paragraph ends with the sentence, "Corollary to this expansion of contract carriage, the Act provides a means by which motor common carriers can challenge the bona fides of a contract carrier's operations."

Footnote 9 is added to the third sentence of the last paragraph of Part I after the phrase reading, "They point out that motor carrier contracts are not required to be filed with the Commission,⁹  ..."

In their application for rehearing, the petitioners note that our opinion overstates the Commission's commitment to permitting discovery of motor carrier contracts in a proceeding to test the contracts' adherence to statutory and regulatory requirements. The petitioners point out that the Commission must authorize discovery of motor carrier contracts in complaint proceedings brought pursuant to 49 U.S.C. § 10925(e) and that the Commission has in the past denied discovery. They insist that the Commission has not stated unconditionally that it will allow them discovery. Should the Commission refuse to approve discovery, its decision would be reviewable by us only for an abuse of discretion. 5 U.S.C. § 706(2) (A) (1976). The Commission responds that motor carrier contracts are not confidential and that, should the petitioners file a complaint under 49 U.S.C. § 10925(e), they may seek to discover the contracts under the Commission's discovery regulations, 49 C.F.R. Sec. 1114 (1982). At this stage, we need not speculate on the Commission's response to an unfiled discovery request, and it would be inappropriate to make that speculation the basis for overturning the Commission's approval of these contract carrier applications. If there is a reasonably founded complaint that the contract carriers' operations do not conform to the statutory and regulatory requirements, we must assume that the Commission will not withhold discovery calculated to determine whether or not such abuse exists.

Accordingly, the petition for rehearing is DENIED.