UNITED STATES SUPREME COURT DECISIONS ON-LINE

A motor carrier applied to the Interstate Commerce Commission for a certificate of convenience and necessity under § 207(a) of the Interstate Commerce Act. Appellee intervened in opposition. The hearings were conducted by an examiner not appointed pursuant to § 11 of the Administrative Procedure Act, but appellee did not object at any stage of the administrative proceedings, although it had ample opportunity to do so. The Commission granted the certificate. Appellee petitioned a district court to set aside the Commission's action, and for the first time challenged its validity on the ground that the examiner was not appointed pursuant to § 11 of the Administrative Procedure Act. It offered no excuse for its failure to raise the question sooner, and made no claim of actual prejudice by the conduct of the examiner or the manner of his appointment.

Held: The district court should not entertain this objection when first made at that stage of the proceedings. Pp. 344 U. S. 34-38.

(a) The defect in the examiner's appointment was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings. P. 344 U. S. 38.

(b) But it is not one which deprives the Commission of power or jurisdiction, so that, even in the absence of timely objection, its order should be set aside as a nullity. P. 344 U. S. 38.

(c) Riss & Co. v. United States, 341 U.S. 907, and Wong Yang Sung v. McGrath, 339 U. S. 33, distinguished. Pp. 344 U. S. 36-38.

100 F.Supp. 432, reversed.

The District Court set aside an order issued by the Interstate Commerce Commission under § 207(a) of the Interstate Commerce Act, on the sole ground that the hearing on the application therefor was conducted by an examiner not appointed pursuant to § 11 of the Administrative clubjuris

Page 344 U. S. 34

Procedure Act. 100 F.Supp. 432. On appeal to this Court, reversed and remanded, p. 344 U. S. 38.