Merchants Fast Motor Lines, Inc. v. Interstate Commerce Commission

United States Court of Appeals,

Fifth Circuit.

Nos. 92-4691A, 92-4691B and 92-4691C.

MERCHANTS FAST MOTOR LINES, INC. et al., National Motor Freight Traffic Association,
Inc. et al., Texas Motor Transportation Association, Inc. et al., and Railroad Commission of Texas,
Petitioners,

v.

INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.

NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, et al. and Texas Motor
Transportation Association, et al., Petitioners,

v.

INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.

Nov. 1, 1993.

Petition for Review of an Order of the Interstate Commerce Commission.

Before WISDOM and DAVIS, Circuit Judges, and SCHWARTZ*, District Judge.

W. EUGENE DAVIS, Circuit Judge:

I.

In this consolidated appeal, three sets of petitioners seek review of three separate actions of

the Interstate Commerce Commission (ICC). In 92-4691A and 92-4691C, petitioners seek review

of a declaratory order1 and a policy statement.2 In these two actions, petitioners, including several

trucking associations3 and the Railroad Commission of Texas, challenge the ICC's determination that

a particular type of transportation is in interstate commerce and therefore subject to ICC, rather than

*
District Judge of the Eastern District of Louisiana, sitting by designation.
1
Association of Texas Warehousemen et al., 8 I.C.C.2d 476 (No. 92-4691A) (1992)
(Warehousemen ).
2
Policy Statement, 8 I.C.C.2d 421 (No. 91-4691C) (1992) (Policy Statement ).
3
National Motor Freight Traffic Association, Inc. et al. (NMFTA), Texas Motor
Transportation Association, Inc. et al. (TMTA), and Merchants Fast Motor Lines, Inc., et al.
(Merchants) join in the petition to review the declaratory order. NMFTA and TMTA join in the
petition to review the policy statement.
state, regulation. The ICC takes the position in both the declaratory order and the policy statement

that in certain circumstances when a shipper ships goods into Texas from another state, temporarily

stores the goods at a warehouse in Texas, then later ships the goods to the shipper's Texas customer,

the entire shipment is interstate in nature. Petitioners argue that the second leg of the

transportation—from Texas warehouse to ultimate Texas destination—is an intrastate movement

subject to state regulation. Because we do not find that the declaratory order is arbitrary or

capricious, we deny the petitions to set aside this order. Because we find that the policy statement

is not ripe for our review, we dismiss the petition in 92-4691A.

In 92-4691B, petitioners4 seek review of another ICC declaratory order,5 challenging only that

portion of the order finding that an interstate movement to a warehouse by private carriage does not

prevent a later, single-state movement from being treated as interstate commerce. Because

petitioners TMTA and NMFTA can not establish standing and venue, respectively, we dismiss

TMTA's petition for review and transfer NMFTA's petition to the D.C. Circuit.

II. Warehousemen declaratory order (92-4691A)

A.

In August 1991 the Association of Texas Warehousemen (Association) wrote the Railroad

Commission of Texas (RCT) posing two questions: (1) whether the RCT considered the Texas leg

of the transportation described above (from the warehouse to the customer) interstate or intrastate

in nature; and (2) if intrastate, whether the RCT would seek to impose penalties or sanctions on

parties not complying with RCT rates, rules, and orders. The RCT responded by letter, stating that

an out-of-state shipment loses its interstate identity when it is consigned to a point in Texas "without

further instructions for delivery to another Texas location." The RCT also stated that it could assess

administrative penalties against carriers, shippers, and aiders and abettors, including warehousemen,

for not complying with RCT rates, rules, and orders.

The Association then petitioned the ICC for a declaratory order declaring that the Texas leg

4
NMFTA and TMTA join in this petition for review.
5
Pennsylvania-Johnstown-Altoona Express, Inc., 8 I.C.C.2d 815 (May 7, 1992) (PJAX II ).
of the transportation was interstate. By order served March 27, 1992, the ICC found that the risk

of imminent enforcement by the RCT presented a controversy sufficient to warrant the institution of

a § 554(e) declaratory proceeding. After the ICC requested and received numerous comments, it

issued its declaratory order. The ICC concluded that, in light of its own precedents and the

precedents of the federal courts, the transportation described in the Association's petition was in

interstate commerce.

The ICC's declaratory order described the transportation, on which its order is predicated, as

follows:

... Merchandise moves by for-hire carriage from points outside Texas to warehouse or
distribution centers located in Texas. The shippers temporarily store the merchandise in
Texas warehouses, and then ship the merchandise to Texas destinations by carriers with
interstate authority. The exact ultimate Texas destinations may or may not be known at the
time the shipments leave the out-of-State origins....

[T]he shippers do not initially consign the shipment from an out-of-State origin to the
ultimate Texas consignee, but rather to themselves in care of the Texas warehouses. The
shipment is consigned to the ultimate consignee in the second leg of the transportation.... The
two legs are separately billed....

.....

... Shipments are not made on through bills of lading and few, if any, storage-in-transit
provisions are invo lved.... The warehouses receive no beneficial ownership interest in the
goods.

With increasingly sophisticated computer systems, little merchandise is being stored
solely for inventory or stock. About 707 of the freight shipped to petitioners' warehouses is
based on historic consumption patterns within Texas. About 257 of the freight is in response
to customer orders, and 57 is inventory for smaller customers.6

Some repackaging and reconfiguration (secondary packaging) is performed. The
warehouses do not process or otherwise modify the original products. In general, the goods
are held in storage at the Texas warehouse less than 45 days. Less than 17 remains in storage
more than 365 days.

Routing of the outbound shipment (the all-Texas portion) is usually handled by the
warehouses, but the merchandise is always subject to the ultimate shipper's control and
direction. The manner in which the freight charges are handled varies to some extent
dependent upon whether less-than-truckload, truckload, or consolidated truckload traffic is
involved.... [I]n all instances where the warehouse pays the freight charges, those charges are
billed back to the warehouseman's customer [the shipper].

6
The ICC order relates only to the shipments described as falling within the 707 figure. The
shipments made in response to direct orders (25%) are clearly interstate. The ICC did not rule on
the remaining 57.
 The out-of-State shippers are willing, if necessary, to certify that they intend for their
out-of-State origin shipments to move beyond the Texas warehouse point in a continuous
interstate move....

[T]he intrastate traffic is identifiable and traceable.... less than 17 of the traffic is
commingled....

8 I.C.C.2d at 478-81 & 490. (footnotes omitted). After the ICC issued its order, this petition for

review followed.

B.

Petitioners argue first that the ICC's declaratory order is impermissibly broad. Quoting the

dissenting opinion of Vice Chairman McDonald, petitioners point to the "generalized, global

declaration of interstate jurisdiction" based on an "overly broad and vague record." See 8 I.C.C.2d

492. They argue that the order implicates an unknown multitude of shippers, carriers, products, and

shipping patterns and that the breadth of the order therefore makes any determination of shipper

intent impossible.

Congress commits to the sound discretion of the agency the decision whether to grant

requested declaratory relief. 5 U.S.C. § 554(e);7 see also Intercity Transp. Co., No. 37476, J.A. at

4 (Aug. 30, 1983) (ICC has broad statutory discretion to grant or decline declaratory relief), aff'd,

Intercity Transp. Co. v. United States, 737 F.2d 103 (D.C.Cir.1984). Our inquiry is limited to

whether the agency has abused its discretion. Intercity, 737 F.2d at 106-07. Section 554(e)

authorizes an agency to issue declarat ory relief to terminate a controversy or remove uncertainty.

See Central Freight Lines v. ICC, 899 F.2d 413, 417 (5th Cir.1990).

The ICC found that the correspondence between the RCT and the Association evidenced an

imminent threat of state prosecution. Over the years, the ICC has issued orders declaring single-state

transportation out of storage to be interstate or intrastate, depending on the particular fact of each

case. See, e.g., Bigbee Transportation, Inc., No. MC-C-30065 (Nov. 1, 1988) (transportation found

to be intrastate); Armstrong, Inc., 2 I.C.C.2d 63 (1986) (transportation found to be interstate).

7
(e) The agency, with like effect as in the case of other orders, and in its sound discretion, may
issue a declaratory order to terminate a controversy or remove uncertainty.

5 U.S.C. § 554
Despite numerous ICC decisions, RCT continued to ignore the various factors the ICC considers

important in determining the interstate nature of transportation. When questioned by the Association

in August 1991, RCT took the narrow position that an out-of-state shipment loses its interstate

identity when it arrives at a warehouse without further instructions. The ICC stated that it ordinarily

might hesitate to institute such a broad scale proceeding, but that "RCT's consistent failure to

consider any transportation pattern other than the limited one reiterated above requires additional

action on our part to remove any lingering uncertainties as to what constitutes transportation in

interstate commerce." Warehousemen, 8 I.C.C.2d at 486. The contested order applies to all shippers

who can demonstrate that their shipping patterns match the general patterns assumed in the order.

See 8 I.C.C.2d at 486.

We are persuaded that the ICC was reasonable and acted within its statutory authority in

issuing its broad declaratory order. RCT had announced its intent to regulate all interstate shipments

from Texas warehouses where the out-of-state shipper had not designated the final consignee. RCT's

announced position was contrary to established ICC decisions that allowed shipper intent of a

continuous, interstate shipment to be demonstrated by a variety of factors. This threat by RCT to

regulate as intrastate commerce all shipments of this nature created a controversy and uncertainty

among the parties about whether interstate or intrastate rates would apply to their shipments. A

narrow order by the ICC would not have been helpful in resolving this controversy or removing this

uncertainty created by the RCT regulation. We are persuaded that the order, when considered in light

of the controversy, was not overbroad.

C.

Petitioners next argue that the ICC was without jurisdiction to issue its order. The ICC has

regulatory jurisdiction over for-hire motor carrier transportation in interstate commerce. 49 U.S.C.

10521(a)(1). States retain the authority to regulate wholly intrastate motor transportation. 49 U.S.C.

10521(b)(1). Petitioners argue that in regulating the Texas leg of the transportation, the ICC is

trampling on the state's right to regulate intrastate commerce and is acting in excess of its statutory

authority. Petitioners' argument is meritless. The ICC clearly has primary jurisdiction to determine,
in the first instance, whether challenged transportation is interstate.8 See Central Freight, 899 F.2d

at 417; State of Texas v. United States, 866 F.2d 1546, 1551-54 (5th Cir.1989). We next consider

the merits of the ICC's order.

D.

In reviewing an ICC declaratory order, which we treat as an adjudicatory ruling,9 this court

may set aside the ICC's findings or conclusions only if they are "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Central Freight, 899

F.2d at 419. In this case we need only to consider whether the ICC's conclusions are rationally

supported. Central Freight, 899 F.2d at 419.

The fundamental standards governing the nature of interstate transportation are clearly

established. Whether transportation between two points in a single state is interstate or intrastate

depends on the "essential character" of the shipment. Texas & N.O.R.R. v. Sabine Tram Co., 227

U.S. 111, 122, 33 S.Ct. 229, 233, 57 L.Ed. 442 (1913); Central Freight, 899 F.2d at 419. The

critical factor in determining the shipment's essential character is the fixed and persisting intent of the

shipper at the time of the shipment. Id.; Baltimore & O.S.W.R.R. Co. v. Settle, 260 U.S. 166, 173-

74, 43 S.Ct. 28, 31, 67 L.Ed. 189 (1922). The totality of the facts and circumstances will determine

whether a shipper has the requisite intent to move goods continuously in interstate commerce.

Central Freight, 899 F.2d at 419-20.

Petitioners argue first that the ICC's declarat ory order is irreconcilable with controlling

precedent. Specifically, petitioners argue that in previous decisions in which the ICC found a

continuous interstate movement in circumstances similar to those presented in the contested order,

the shipper had a manifest intent to move goods beyond the warehouse to an ultimate consignee. But

8
The ICC's primary jurisdiction also defeats petitioners' argument that federalism concerns
require the ICC to abstain from regulating the transportation in this case. The ICC purports only
to regulate interstate transportation; this regulation is clearly encompassed within its statutory
authority.
9
Rendered in a specific factual context and resolving only those issues presented in petitioners'
applications, declaratory rulings belong to the genre of adjudicatory rulings. Texas, 866 F.2d at
1555 (citing Loveday v. FCC, 707 F.2d 1443, 1447 (D.C.Cir.), cert. denied, 464 U.S. 1008, 104
S.Ct. 525, 78 L.Ed.2d 709 (1983)).
as stated above, "our task on review is to decide not whether we would construe the precedents as

the ICC did, but whether the ICC's construction is reasonable and whether it has explained any

departures from its past actions." Central Freight, 899 F.2d at 420-21 (citing Texas, 866 F.2d at

1556-57).

The ICC offers a number of explanations in support of its multi-factor approach. The ICC

gave great weight to the fact that the shipper maintains control over the shipment from its out-of-state

origin until it is delivered to the ultimate consignee. The ICC contends that the inclusion of this factor

avoids conflict with Atlantic Coast Line R.R. v. Standard Oil Co., 275 U.S. 257, 48 S.Ct. 107, 72

L.Ed. 270 (1927). In that case two shippers, rather than one, controlled the transportation. Also in

that case, sellers from Louisiana and Mexico did not intend for their oil to move beyond the

consignee's storage stations in Florida. See id. at 269, 48 S.Ct. at 111. The consignee or the second

shipper controlled the in-state movement of the oil to its Florida customers.

Under the order the warehouses may act on behalf of the shipper in routing the all-Texas

portion of the shipment without destroying the interstate nature of the shipment, so long as the

routing is subject to the original shipper's control and direction.10 To maintain the shipment as

interstate the ICC assumed that the shippers intended to ship their goods to the final destination, not

just to the warehouse. See also The May Dep't Stores Co. and Volume Shoe Corp., MC-C-30146,

at 7 (June 15, 1990) (continuity of interstate movement is not broken at warehouse when goods

intended to move to ultimate destination).

The ICC also relied on the fact that "the shippers are constantly matching shipments and

customers based on historic consumption and demand patterns." 8 I.C.C.2d at 490. The ICC found

that the shipper's analysis of historic consumer needs enabled it to send goods to the warehouse with

the expectation that the goods would soon move—usually within 45 days—to their ultimate

destinations. The ICC reasonably concluded that the warehousemen in this circumstance are merely

a link in the chain of interstate commerce.

10
The ICC also states that the order does not apply to movements for which the ultimate
consignee assumes any responsibility.
 As stated above, the ICC's order lists numerous factors to be considered in their totality.

Petitioners, on the other hand, isolate individual factors and cite cases involving a particular factor

in an attempt to undermine the ICC's determination that the transportation is interstate. For example,

petitioners argue that the in-state shipment from the warehouse is generally not considered interstate

if the ultimate destination and ultimate consignee of each particular shipment is not known at the time

of the original shipment. They cite Central Freight for the proposition that the ICC cannot rely on

the mere "intent to distribute the merchandise at some future time" as evidence of shipper intent. See

Central Freight, 899 F.2d at 422 (citing Surles Contract Carrier Application, 4 M.C.C. 488, 494

(1938)). Viewed in isolation and without the presence of any of the other factors on which the

declaratory order is predicated, we agree with petitioners. But the factors listed in the ICC's order,

bearing on shipper intent, must be considered in their totality.11 See id. at 419-20. Petitioners'

attempt to attack individual factors does not assist us in our analysis of whether the order is

reasonable.

Petitioners also argue that essential factors that are necessary to a finding of shipper intent to

ship goods in interstate commerce are missing from the order. Petitioners contend that a

storage-in-transit provision must appear in the bill of lading to tie the two shipments together as a

continuous interstate shipment. But we made it clear in Texas that this provision is just one of many

factors that may bear on this question:

[T]he ICC did not decide that the use of a storage-in-transit privilege was dispositive of the
interstate nature of the movement. The ICC noted that it was a "strong indication" of the
through character of the movement, but relied in addition on the "incidents" surrounding the
involved transportation. Without discussing them in detail, the ICC noted such indicia as the
tracking and documentation linking the shipments coming in and going out of Arlington, and
the fact that the goods are not processed, other than being cut to specification, at the
temporary storage point.

Texas, 866 F.2d at 1560-61 (footnotes omitted). We conclude that the ICC's multi-factor test is not

arbitrary or unreasonable, even in the absence of a storage-in-transit provision.

11
In response to petitioners' argument that the potential for commingling of interstate and
intrastate traffic—noted in the Association's petition to be less than 1%—undermines the ICC's
finding of shipper intent, the ICC argues that 17 should not disqualify the remaining 997 of the
traffic from being treated as interstate. This factor as well, when considered along with all of the
other factors in the ICC's order, does not render the ICC's conclusion unreasonable.
 Petitioners also argue that the record does not support the following facts assumed by the ICC

in its order: All of the shippers have computer-based inventory systems; the shippers use motor

carriers with interstate operating authority for the shipments moving solely within Texas; only 17 of

the goods is actually held in storage over one year; and the shippers actually exercise their right of

control over the goods t hat are shipped within Texas from warehouse to customer. Petitioners

misunderstand the nature of the ICC's order. The declaratory order simply "determine[s] the legal

consequences of the factual predicate presented" by the warehousemen. Texas, 866 F.2d at 1551.

The order would not insulate the warehousemen from a state regulatory proceeding if facts are

presented which are different from those assumed in the declaratory order. See Central Freight, 899

F.2d at 418; Texas, 866 F.2d at 1551.

Next, petitioners point to the difficulties of applying the ICC's multi-factor test. They contend

that the order does not demonstrate how shipper control is ever actually exercised over goods moving

from warehouse to customer. They argue that the warehousemen actually serve as the second

shipper. But the ICC admitted in oral argument that its declaratory order in Warehousemen does not

resolve all future cases. For example, cases in which the parties dispute whether the shipper retains

control over the goods during the second-leg of the shipment may need to be adjudicated. The order

will resolve some disputes, others will be resolved in enforcement actions. The fact that the order

does not resolve all cases does not render the ICC's finding of shipper control unreasonable.

Thus, in conducting a deferential review of the ICC's conclusions, we uphold as reasonable

the ICC's application of its "fixed and persisting intent" rule based on a totality of the facts and

circumstances. The fact that petitioners have made some persuasive arguments does not permit us

to set aside the order. The ICC was not arbitrary or capricious in its determination that the essential

character of the transportation presented by the Association was interstate.

Accordingly, the petitions in 92-4691A to review and set aside the ICC's declaratory order

are DENIED.

III. Policy Statement (92-4691C)

A.
 Petitioners RCT, TMTA, and NMFTA also have petitioned for review of the ICC's Policy

Statement which summarizes factors the ICC uses to determine whether a shipment is in interstate

or intrastate commerce. The policy statement applies to the same general factual pattern the ICC

addressed in its declaratory order in Warehousemen: the goods are shipped to a Texas warehouse

from another state and later transported to the shipper's customer inside the state. The ICC issued

the policy statement, like the Warehousemen declaratory order, because of persisting challenges from

state regulatory authorities to parties attempting to follow earlier ICC decisions. The policy

statement consists of two lists of factors. The first list includes factors that demonstrate when in-state

motor transportation is part of a continuing interstate movement.12 The second list includes factors

that, if present, do not automatically destroy the interstate nature of the movement.13

12
Although the shipper does not know in advance the ultimate destination of specific
shipments, it bases its determination of the total volume to be shipped through the warehouse on
projections of customer demand that have some factual basis, rather than a mere plan to solicit
future sales within the State. The factual basis for projecting customer demand may include, but
is not limited to, historic sales in the State, actual present orders, relevant market surveys of need.

No processing or substantial product modification of substance occurs at
the warehouse or distribution center. However, repackaging or reconfiguring
(secondary packaging) may be performed. This Commission and the U.S. Court of
Appeals for the Fifth Circuit have found for example, that cutting carpeting from
large rolls for further distribution constitutes repackaging or reconfiguring rather
than product modification.

While in the warehouse, the merchandise is subject to the shipper's control
and direction as to the subsequent transportation.

Modern systems allow tracking and documentation of most, if not all, of
the shipments coming in and going out of the warehouse or distribution center.

The shipper or consignee must bear the ultimate payment for transportation
charges even if the warehouse or distribution center directly pays the
transportation charges to the carrier.

The warehouse utilized is owned by the shipper.

The shipments move through the warehouse pursuant to a storage in transit
tariff provision.

8 I.C.C.2d 470, 473.
13
The shipper's lack of knowledge of the specific, ultimate destination or consignee at the time
the shipment leaves is out-of-State origin;
 B.

First we co nsider whether the policy statement is ripe for review. Ripeness of the policy

statement for review must be determined according to the test enunciated in Abbott Laboratories v.

Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Generally, this requires us to

evaluate "both the fitness of the issues for judicial decision and the hardship to the parties of

withholding court consideration." Id. at 149, 87 S.Ct. at 1515. Specifically, we must consider: (1)

whether the issues presented are purely legal; (2) whether the agency's pronouncement is a "final

agency action" within the meaning of 5 U.S.C. §§ 551(13) & 704;14 (3) whether the impact on the

petitioners is direct and immediate; and (4) whether resolution of the issues will foster effective

administration of the statute. Id. at 149-54, 87 S.Ct. at 1515-18.

In applying Abbott Laboratories, we recognize that the policy statement satisfies prongs one

and two of the Court's test so that the statement's "fitness for judicial decision" is not a barrier to our

review. See Baltimore Gas and Elec. Co. v. ICC, 672 F.2d 146, 149 (D.C.Cir.1982). The

statement's list of factors bearing on the character of interstate transportation presents issues that are

Separate bills of lading for the inbound and outbound movements instead
of through bills of lading;

Storage-in-transit tariff provisions;

Storage receipts issued by the warehouse distribution center;

Time limitations on storage;

Payment of transportation charges by warehouse or distribution center,
when the shipper or consignee is ultimately billed for these charges;

Routing of the outbound shipment by the warehouse or distribution center;

A change in carriers or transportation modes at a distribution facility;

Use of brokers retained by the shipper;

Use of a warehouse not owned by the shipper.

8 I.C.C.2d 470, 474.
14
5 U.S.C. § 704 provides that only final agency actions are subject to judicial review. 5
U.S.C. § 551(13) provides that an agency action includes "the whole or a part of an agency rule,
order, license, sanction, relief, or the equivalent or denial thereof."
purely legal. Also, the fact that the policy statement was issued by the ICC's commissioners, was

published, and was not labeled as tentative, lends support to the statement's finality. See Abbott

Laboratories, 387 U.S. at 149-51, 87 S.Ct. at 1515-17.

The difficult question is whether the statement meets the third prong of the Abbott

Laboratories test, i.e., does the policy statement have a direct, immediate impact on petitioners. See

Baltimore Gas, 672 F.2d at 149. This aspect of the ripeness doctrine ensures that agencies are

protected from judicial review until the effects of their action are felt in a "concrete way" by the

challenging parties. See Abbott Laboratories, 387 U.S. at 148, 87 S.Ct. at 1515.

Petitioners contend that the policy statement affects them because the ICC is assigning it

precedential value and using it as a basis for enforcement actions. But the factors listed in the policy

statement are practically the same as the factors the ICC considered in its declaratory order in

Warehousemen. The declaratory order notifies petitioners and others of essentially the same ICC

policy towards regulation of this type of transportation as the policy statement. The declaratory order

has been subjected to ordinary review. Petitioners have identified no hardship they will suffer from

the policy statement that was not subject to review as part of the declaratory order. Our review of

the declaratory order provides petitioners with an adequate forum for testing the policy statement in

a concrete situation. See Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158, 165, 87 S.Ct. 1520,

1525, 18 L.Ed.2d 697 (1967) (companion case to Abbott Laboratories.). We therefore have not

refused petitioners' request to be relieved of an "onerous legal uncertainty." See Continental Air

Lines, Inc. v. CAB, 522 F.2d 107, 128 (D.C.Cir.1974). And further review of these factors as listed

in the policy statement would not foster the effective administration of the statute. Abbott

Laboratories, 387 U.S. at 154.

We are not persuaded that petitioners will suffer hardship as a result of the ICC's issuance of

the policy statement or that review of the policy statement will foster effective administration of the

statute. Because the petitions in 92-4691C for review of the policy statement present an issue not

ripe for judicial consideration, the petitions are DISMISSED.

IV. PJAX II declaratory order (92-4691B)
 Petitioners NMFTA and TMTA petition for review of another ICC declaratory order holding

that a wholly intrastate shipment could be tacked to an earlier interstate shipment in private carriage

to make the entire shipment interstate in nature. Because we find that TMTA has no standing, we

dismiss its petition for review. Because NMFTA is unable to establish venue in the Fifth Circuit, we

transfer its petition to the D.C. Circuit.

A.

The motor carrier Pittsburgh-Johnstown-Altoona Express, Inc. (PJAX) initiated this

declaratory proceeding to seek a determination that the movements it described were in interstate

commerce. In ruling on the petition for declaratory order, the ICC found that a movement of goods

in private carriage from out-of-state to a Pennsylvania warehouse may be tacked to a for-hire, in-state

movement from warehouse to customer to create one continuous interstate movement.

Petitioners begin with the bedrock premise that private carriage, unlike for-hire carriage, is

not regulated by either the ICC or the state. See 49 U.S.C. 10102(16). Petitioners contend that the

ICC departed from its prior, well-established rulings that any portion of a shipment by private carriage

should not be considered in determining the interstate nature of the transportation. "The

transportation must be considered as beginning at the point where the shipper tenders his goods to

a for-hire carrier. If delivery is then made at a point in the same State, the relevant transportation is

not interstate transportation." Motor Transportation of Property Within a Single State, 94 M.C.C.

541, 550 (1964), aff'd sub nom. Pennsylvania R.R. Co. v. United States, 242 F.Supp. 890

(E.D.Pa.1965), aff'd per curiam sub nom. American Trucking Ass'ns v. United States, 382 U.S. 372,

86 S.Ct. 533, 15 L.Ed.2d 421 (1966). See also Pennsylvania R.R. Co. v. Public Utils. Comm'n, 298

U.S. 170, 56 S.Ct . 687, 80 L.Ed. 1130 (1936) (single-state movement by rail was not part of

interstate transportation because preceding interstate movement by private rail carriage was not

"transportation").

Petitioners, including NMFTA, filed a petition to reopen the proceeding in light of this court's

Central Freight decision casting doubt on the ICC's new interpretation of its jurisdiction. See Central

Freight Lines v. ICC, 899 F.2d 413, 425 (5th Cir.1990). The ICC denied this petition in
Pennsylvania-Johnstown-Altoona Express, Inc., 8 I.C.C.2d 815 (1992) (PJAX II ). The petitioners

now seek review of that portion of the ICC's order holding that the ICC gains jurisdiction over a

for-hire, single-state movement by tacking it to a private carriage, interstate movement.

B.

First, we must determine whether the parties are properly before this court. The ICC argues

that NMFTA, a party to the proceeding below, is unable to establish venue in the Fifth Circuit.

Venue is proper in an agency review proceeding "in the judicial circuit in which the petitioner resides

or has its principal office, or in the United States Court of Appeals for the District of Columbia

Circuit." 28 U.S.C. § 2343. The nationwide character of NMFTA's membership does not affect

venue. American Civil Liberties Union v. FCC, 774 F.2d 24, 26 (1st Cir.1985) (ACLU ). Because

NMFTA resides, or was incorporated in,15 the District of Columbia and its principal office is in

Virginia, the ICC requests that this petition be transferred to the D.C. or Fourth Circuit.

We have reviewed NMFTA's arguments in support of establishing venue in this circuit and

find that none of them have merit. First, NMFTA asks us to exercise pendant venue over its petition

because it arises out of a common nucleus of operative facts with other petitions for review before

this court in which venue is proper. See 1A, Part 2 James W. Moore et al., Moore's Federal Practice

0.340(5) (2d ed. 1985). We decline the invitation. This petition challenges the ICC's decisions in

PJAX I and PJAX II on the narrow question of whether an interstate movement in private carriage

can be joined with an in-state movement to become transportation in interstate commerce. This

narrow inquiry does not arise out of a common nucleus of facts with the other petitions before this

court. See Association of Texas Warehousemen, 8 I.C.C.2d 476 (1992); Policy Statement-Motor

Carrier Interstate Transportation, 8 I.C.C.2d 421 (1992). Rather, those petitions challenged the

ICC's determination that certain factors are sufficient to demonstrate shipper intent to move goods

beyond a Texas warehouse to a Texas customer in one continuous, interstate movement.

Next, NMFTA argues that its co-petitioner TMTA, a Texas entity, properly lodged its petition

15
For venue purposes the residence of a corporate plaintiff, including a membership
corporation, is the place of incorporation. See American Newspaper Publishers Ass'ns v. U.S.
Postal Serv., 789 F.2d 1090, 1092 (5th Cir.1986); ACLU, 774 F.2d at 26.
in this court. NMFTA contends that generally we may review petitions lacking proper venue so long

as contemporaneous petitions for review are filed by part ies who are able to establish venue. See

American Newspaper Publishers Ass'ns v. U.S. Postal Serv., 789 F.2d 1090, 1092 (5th Cir.1986).

The question for resolution thus narrows to whether TMTA lodged a valid petition in this court.

The ICC argues that TMTA and its nominal co-petitioners have no standing to challenge the

ICC's declaratory order because they are not "parties aggrieved" by the order. See 28 U.S.C. § 2344.

Ordinarily, to qualify as a "party aggrieved," the entity must have part icipated in the underlying

agency proceeding. ACLU, 774 F.2d at 25. Neither TMTA nor its co-petitioners participated in the

agency proceeding.

TMTA attempts to avail itself of a narrow exception to this aggrieved party requirement.

TMTA argues that although it was not a party to the original agency proceeding, it may appeal an

agency decision if it attacks the decision as exceeding the agency's authority. Wales Transp., Inc. v.

ICC, 728 F.2d 774, 776 n. 1 (5th Cir.1984) (citing American Trucking Ass'ns, Inc. v. ICC, 673 F.2d

82, 85 n. 4 (5th Cir.1982) (per curiam)). According to petitioners, this exception applies because

they challenge the ICC's order in PJAX II as unlawfully expanding the ICC's jurisdiction to reach

intrastate commerce, a power clearly reserved to the states by 49 U.S.C. § 10521(b). They argue that

Wales gives them standing to make this argument. We therefore must determine whether the

petitioners' attack qualifies under Wales as a challenge to the ICC's authority to issue the order.

Texas v. United States, 866 F.2d 1546 (5th Cir.1989) provides some insight into our inquiry.

In that case Texas contended that the ICC lacked jurisdiction to issue a declaratory order pertaining

to transportation that was facially intrastate, because the order had the effect of regulating intrastate

commerce. We found that the ICC had primary jurisdiction to determine at the outset whether the

transportation at issue was in interstate or intrastate commerce. Id. at 1553; see also Service Storage

& Transfer Co. v. Virginia, 359 U.S. 171, 79 S.Ct. 714, 3 L.Ed.2d 717 (1959) (ICC has primary

jurisdiction over scope of ICC certificates); cf. Weinberger v. Hynson, Westcott & Dunning, Inc.,

412 U.S. 609, 625-27, 93 S.Ct. 2469, 2481-82, 37 L.Ed.2d 207 (1973) (FDC has primary jurisdiction

to determine its jurisdiction and may do so by declaratory order).
 Texas therefore makes it clear that the ICC has authority to determine it own jurisdiction, i.e.

whether the transportation at issue is interstate in character. See Texas, 866 F.2d at 1553. We are

satisfied therefore that none of petitioners' claims qualify as an attack on the ICC's power to act. The

Wales exception to the requirement that one seeking review must be an aggrieved party is exceedingly

narrow. TMTA has no t succeeded in demonstrating that it fits within this exception.16 Thus,

TMTA's petition must be dismissed for lack of standing.17

Because neither TMTA nor its nominal co-petitioners have a valid petition before this court,

we conclude that it is in the interest of justice to transfer NMFTA's petition to a circuit court having

proper venue. See 28 U.S.C. 1631; Dornbusch v. Commissioner, 860 F.2d 611, 612 (5th Cir.1988).

Accordingly, we transfer NMFTA's petition to the District of Columbia Circuit, as it appears to be

the most convenient circuit for both NMFTA and the ICC.

The petition by TMTA and its nominal co-petitioners in 92-4691B for review is DISMISSED

and ICC's motion to transfer NMFTA's petition to the D.C. Circuit is GRANTED.

16
At least one other circuit has refused to recognize the narrow exception we adopted in
Wales. See Matter of Chicago, Milwaukee, St. Paul and Pacific, 799 F.2d 317, 335 (7th
Cir.1986) (The "suggestion that non-parties may obtain review of orders that "exceed the power'
of the agency is dubious." 28 U.S.C. § 2344, the Hobbs Act, "limits review to petitions filed by
parties, and that is that.").
17
Because we find that TMTA has failed to show how it has attacked the agency's decision as
exceeding its authority, we need not determine whether TMTA has shown that the ICC's decision
has subjected it to actual or threatened legal injury. See American Trucking, 673 F.2d 85 n. 4
(citing Edward Hines Yellow Pine Trustee v. United States, 263 U.S. 143, 147, 44 S.Ct. 72, 73,
68 L.Ed. 216 (1923)).