Pony Express Courier Corp., 95-SCA-45 (ALJ Mar. 28, 1996)
DATE: March 28, 1996
CASE NO.: 95-SCA-45
IN THE MATTER OF
PONY EXPRESS COURIER CORPORATION,
Respondent
Before: DANIEL A. SARNO, JR., Administrative Law Judge
DECISION AND ORDER DENYING
COMPLAINANT'S MOTION FOR RECONSIDERATION
On February 9, 1996, the Presiding Judge issued a Decision
and Order Granting Respondent's Motion for Summary Decision and
Dismissing Complaint. By motion dated March 11, 1996,
Complainant requests reconsideration of that decision and order.
Respondent mailed a response in opposition to Complainant's
motion on March 20, 1996.
In support of its motion, Complainant asserts that
Respondent has not established that published tariff rates were
in effect pursuant to the McNamara-O'Hara Service Contract Act,
41 U.S.C. § 356 (3), which provides exemption for certain
kinds of transport "where published tariff rates are in effect."
Complainant requests the Presiding Judge to set aside summary
decision on the basis that material facts remain in dispute,
precluding the entry of summary decision for either party.
Specifically, Complainant avers first that the tariffs
attached to Mr. Nero's Affidavit "could not have controlled the
contract at issue" because they were dated subsequent to the
effective date of the contract at issue, March 1, 1993.
Complainant relies on the affidavit of Lawrence Herzig of the
Surface Transportation Board ("STB") of the U. S. Department of
Transportation to show that the only tariff on file by Respondent
with the I.C.C. covering the year 1993 was I.C.C. -
PEXC-200-B.[1]
In its latest response, Respondent acknowledges that it
should have attached ICC-PEXC-200-B instead of ICC-PEXC-200-C.
However, Respondent states that ICC-PEXC-200-C is merely an
updated version of ICC-PEXC-200-B. Respondent submitted a
supplemental affidavit of George J. Nero as well as a copy of
ICC-PEXC-200-B. [Supplemental EX 1] I find that based upon the
submission of ICC-PEXC-200-B as well as Nero's supplemental
affidavit, Respondent had published tariff rates on file with the
ICC applicable to the transportation involved.[2]
[PAGE 2]
Complainant also argues that the granting of Respondent's
motion for summary decision was inappropriate because "the
holding of a Certificate of Public Convenience and Necessity
permitting Pony Express to operate as a motor common carrier
precludes it from bidding or operating on the contract here at
issue as a contract carrier under negotiated rates." This
argument is without merit. Complainant cites no legal authority
to support its contention that common carriers are precluded from
bidding on the Federal Reserve Bank contract. Moreover, the
letter attached by Respondent as Supplemental Exhibit 2 clearly
demonstrates that the FRB contemplated soliciting responses to
its Request for Proposal from common carriers. ("[I]f your
company is currently operating under common carrier authority for
the State of North Carolina... or when service is subject to
rates covered under Section 22 of the Interstate Commerce Act you
are exempt from the provisions of the Service Contract Act of
1965 and, therefore, do not have to comply with the wage
determinations attached.")
Moreover, Complainant has introduced no facts which support
its allegation that the contract between Respondent and the FRB
was the product of negotiations. It remains undisputed that
Respondent's "rate charge under [its] contract with the FRB
Richmond, Charlotte Branch was not negotiated but was calculated
using the attached tariff and submitted to the FRB as a sealed
bid." (Nero Aff. Para. 24).
Complainant also argues in support of its motion that
Respondent's tariff in effect and applicable to the contract at
issue does not satisfy the requirements of Section 7(3) because
there has been no showing that the tariffs referred to by Nero
were "legally binding tariffs which mandate the rates for the
work performed on this contract". However, Complainant fails to
cite any legal authority to support its position that such a
showing must be made to establish entitlement to a Section 7(3)
exemption.[3] While that legal standard may make sense to the
Complainant, there has been no showing that that legal standard
must be met by Respondent. Complainant's argument is therefore
without merit.
Complainant further argues that summary decision was
inappropriate because Respondent did not file with the Court a
copy of its response to the FRB's request for proposal and did
not provide the Court with an attachment to its contract with the
FRB. Respondent replies that the information was not provided
because it is immaterial to the question of whether Respondent
had a tariff rate in effect on March 1, 1993 and thus satisfies
the Section 7(3) exemption. Respondent's point is well taken.
Complainant does not explain why this alleged failure to attach
this document would justify a denial of summary decision.
[PAGE 3]
Complainant also states that Respondent "conveniently
omitted" a schedule referenced in the FRB contract. Complainant
argues that "a reasonable inference can be drawn that the omitted
schedule is a fee schedule and not a reference to a published
tariff." All that Complainant has offered is speculation and
surmise in this argument. Certainly, Complainant has failed to
show that there remains a genuine issue of material fact of
sufficient magnitude to warrant denying Respondent's Motion for
Summary Decision and proceeding to hearing.
Complainant also points to the fact that the contract
between Respondent and the FRB provides for adjustments to the
fee schedule based on fuel costs and that this fact demonstrates
that the contract was not subject to published tariffs. However,
this argument also is speculative and without merit. Respondent
reasonably points out that if fuel costs had warranted an
adjustment there would have been a corresponding adjustment to
Respondent's published tariff on file with the I.C.C. Under 49
U.S.C. § 10762(a),(b) and (c), Respondent would have filed a
notice of proposed change of tariff with the I.C.C. to reflect
the increase in fuel cost. Again, I find Complainant's arguments
to be mere speculation and insufficient to warrant my rescinding
my previous decision and order granting summary decision to
Respondent.
Based on the foregoing, I reaffirm that Respondent has shown
that it had published tariff rates in effect on March 1, 1993
which were applicable to its contract with FRB Richmond,
Charlotte Branch. Thus, Complainant's motion is DENIED.
DANIEL A. SARNO, JR.
Administrative Law Judge
[ENDNOTES]
[1] This tariff was effective December 17, 1990. Herzig's
affidavit further notes that ICC-PEXC-200-B was superseded by
Tariff ICC-PEXC-200-C, received March 2, 1994.
[2] Complainant's assertion that ICC-PEXC-200-B and
ICC-PEXC-200-C were "markedly different" because of the differing
number of rates offered is without merit. Respondent
convincingly explained that a quick comparison of the small
vehicle rates applicable to the FRB contract, shows that those
rates remained unchanged in 1993 and 1994. The only rates which
changed were not applicable to the FRB contract. [See Nero
Supplemental Affidavit).
[3] Complainant also fails to explain what is meant by the term
"legally mandated published tariff rate". This language does not
appear in Section 7(3) of the Act.
