United States v. Drum

Mr. Justice Brennan

delivered the opinion of the Court.

In an investigation initiated by it under 49 U. S. C. § 304 (c),1 the Interstate Commerce Commission held that appellees who leased their motor vehicles and hired *372 their services as drivers to the appellee Oklahoma Furniture Manufacturing Company (hereinafter “Oklahoma”) were contract carriers within 49 U. S. C. § 303 (a) (15) 2 and subject to the permit requirements of 49 U. S. C. §309 (a)(1).3 79 M. C. C. 403.

*373 A three-judge court in the District Court for the Western District of Oklahoma, convened under 28 U. S. C. § 2325 in a proceeding commenced by appellees pursuant to 28 U. S. C. §§ 1336 and 1398,4 set aside the cease-and-desist order by which the Commission required the lessors to refrain from their operations unless and until they received appropriate authority therefor from the Commission. 193 F. Supp. 275. The District Court held that Oklahoma was engaged in private carriage as defined in 49 U. S. C. § 303 (a) (17).5 We noted probable jurisdiction of the appeals lodged here under 28 U. S. C. § 1253. 365 U. S. 839.

The Motor Carrier Act of 19356 subjected many aspects of interstate motor carriage — including entry of *374 persons into the business of for-hire motor transportation and the oversight of motor carrier rates — to administrative controls, on the premise that the public interest in maintaining a stable transportation industry so required.7 However, although aware that “Both [contract carriers and common carriers] . . . are continually faced with actual or potential competition from private truck operation . . . ,”8 Congress took cognizance of a shipper’s interest in furnishing his own transportation,9 and limited the application of the licensing requirements to those persons who provide “transportation ... for compensation” 10 or, under a 1957 Amendment, “for-hire transportation.” 11 The Commission, therefore, has had to decide whether a particular arrangement gives rise to that “for-hire” carriage which is subject to economic regulation in the public interest, or whether it is, in fact, private carriage as to which Congress determined that the shipper’s interest in carrying his own goods should prevail. This case is a recent instance of the Commission’s developing technique of decision.

From the beginning underlying principles have been, and have remained, clear. A primary objective of the scheme of economic regulation is to assure that shippers generally will be provided a healthy system of motor carriage to which they may resort to get their goods to market. This is the goal not only of Commission sur *375 veillance of licensed motor carriers as to rates and services, but also of the requirement that the persons from whom shippers would purchase a transportation service designed to meet the shippers’ distinctive needs must first secure Commission approval. See Contracts of Contract Carriers, 1 M. C. C. 628, 629; Keystone Transportation Co., 19 M. C. C. 475, 490-492. The statutory requirement that a certificate or permit be issued before any new for-hire carriage may be undertaken bespeaks congressional concern over diversions of traffic which may harm existing carriers upon whom the bulk of shippers must depend for access to market.12 Accordingly, the statutory definitions, while confirming that a shipper is free to transport his own goods without utilizing a regulated instrumentality, at the same time deny him the use of “for compensation” or “for-hire” transportation purchased from a person not licensed by the Interstate Commerce Commission. Because the definitions must, if they are to serve their purpose, impose practical limitations upon unregulated competition in a regulated industry, they are to be interpreted in a manner which transcends the merely formal. Erom the outset the Commission has correctly interpreted them as importing that a purported private carrier who hires the instrumentalities of transportation from another must — if he is not to utilize a licensed carrier — assume in significant measure the characteristic burdens of the transportation business. The problem is one of determining — by reference to *376 the clear but broad remedial purpose of a regulatory statute committed to agency administration — the applicability to a narrow fact situation of imprecise definitional language which delineates the coverage of the measure. Private carriers are defined simply as transporters of property who are neither common nor contract carriers; and the statute will yield up no better verbal guide to the reach of its licensing provisions than transportation “for compensation” or “for-hire.” Compare Bates & Guild Co. v. Payne, 194 U. S. 106; Rochester Tel. Corp. v. United States, 307 U. S. 125, 144-146; Gray v. Powell, 314 U. S. 402, 412-413; Labor Board v. Hearst Publications, 322 U. S. 111, 130-131. Because the Commission’s resolution of the issue does not seem to us to violate the coherence of the body of administrative and judicial precedents so far developed in this area, we are of the opinion that there was no occasion for the District Court to disturb the conclusion reached by the Commission. We therefore reverse the District Court’s judgment.

It was a wish to rid itself of certain burdens of its existing transportation operation which caused Oklahoma to enter into the arrangement here involved. Prior to 1952 Oklahoma, a manufacturer of low-cost furniture, had maintained a full fleet of tractors and trailers in which all its furniture was shipped. A full crew of drivers was employed. Oklahoma absorbed all the expenses, and carried all the risks, of its transportation operation. It utilized a system of delivered pricing which eliminated transportation charges as an identifiable element of the price of its furniture. Its status as a private carrier exempt from licensing requirements was never questioned under the- pre-1952 arrangement. But that method of operation was found to incorporate certain burdensome disadvantages. Oklahoma discovered that its employee-drivers were embezzling its funds through the misuse of *377 credit arrangements which the company had established for the purchasing of fuel and minor repairs on the road. In addition, Oklahoma became convinced that its equipment was too often involved in accidents, and too often in need of repairs and maintenance which could have been avoided by careful operation.

In an effort to eliminate these disadvantages, Oklahoma in 1952 altered its modus opemndi. It decided to terminate its investment in tractors for long hauls and, instead, to lease them from the drivers. The original lease agreements encountered difficulty when, in 1956, the Supreme Court of Arkansas held that the resultant operation constituted for-hire carriage by the owner-operators which required licensing under the applicable Arkansas statutes.13 Following this turn of events, Oklahoma revised the leases, and also entered into a collective agreement with the union representing its workers setting forth the terms under which the owner-operators were to be employed as drivers. The current lease and collective agreement provide the factual predicate of the present litigation.

The Company presently owns 26 trailers and 6 tractors. It leases 11 tractors for long-haul use in connection with the trailers which it owns. It is solely in connection with the 11 leased tractors and the services of their owner-operators that the Commission discerned the provision of for-hire transportation. The leases are for renewable terms of one year, but they are terminable by either party on 30 days’ notice. Oklahoma is granted the sole right to control the use of the tractor through drivers employed by it; in return, it covenants that such use will be lawful and will be confined to the transportation of the Company’s property. Oklahoma pays for its *378 use of the tractors strictly on a mileage basis. The owner receives weekly rental payments of 10 or 11 cents for each mile the vehicle is driven, plus an extra 3 cents per mile on the backhaul if there is a load of raw materials. Oklahoma does not guarantee any minimum mileage. Operating costs — including gasoline, oil, grease, parts, and registration fees — are paid by the owners. Oklahoma assumes no responsibility for wear and tear or damage to the tractors, nor does it provide collision or fire and theft insurance coverage — although it does pay for public liability and property damage insurance. The owners assume no responsibility to Oklahoma for damage to the cargoes.

Under agreement covering the drivers among its employees, the drivers enjoy certain common employment privileges such as collective bargaining, seniority rights, death benefits, immunity from discharge except for cause, military-service protection, and vacation pay in an amount based on their average weekly pay. Owner-drivers may be discharged for cause.14 Their remuneration is calculated strictly on a mileage basis, and they are obliged to pay their own living expenses while on the road. No minimum weekly pay or mileage is guaranteed.15 Drivers are required to maintain their trucks in good running condition at all times.

Oklahoma’s actual operations were a generally faithful reflection of the leases and the collective agreement. Certain matters, not explicitly or unambiguously covered by the written instruments, are of significance. Ordinarily the drivers were assigned to their own tractors, *379 though there were occasional exceptions. Oklahoma’s truck superintendent testified that the owner-operators’ services were not utilized each day. The owners were required to pay for all repairs, though Oklahoma conducted safety inspections.16 The Company closely directed all details of loading and delivery routes. It instructed the drivers as to steps to be taken in emergencies. It administered physical examinations, supervised the preparation of reports required by the Interstate Commerce Commission, paid social security taxes and withheld income taxes, and provided workmen’s compensation.

In sum, Oklahoma’s operation possessed a number of the hallmarks of a genuine lease of equipment and a genuine employment arrangement.

Still, the Company was able to spare itself — and pass to the owner-operators — certain characteristic burdens of the transportation business. The large capital investment in the tractors and the risk of their premature depreciation or catastrophic loss, was borne by the owner-operators, not by the Company. The owner-operators, rather than Oklahoma, stood the risk of a rise in variable costs such as fuel, repairs and maintenance of the tractors in good operating condition, and living expenses, although the thirty-day cancellation privilege, taken together with the possible bargaining power of the owner-operators en bloc, may have affected the degree to which that burden was actually shifted. Finally, Oklahoma was able *380 to divest itself, to a significant extent, of the risk of non-utilization of high-priced equipment. The owner-operators received neither rental payments nor wages when their tractors were not used and they did not drive. Oklahoma did, however, carry the risk of a nonproductive backhaul.17

The question before the Commission was whether, under these particular facts, Oklahoma had so far emancipated itself from the burdens of transportation that to permit it, on such terms, to secure a transportation service from these unlicensed owner-operators would be inconsistent with the statutory scheme. The Commission resolved the issue adversely to Oklahoma and the owner-operators. Division 1, one Commissioner dissenting, held that the owner-operators were engaged in contract carriage and ordered them to cease and desist from the activities thus found to be unlawful until such time as they had secured the necessary permits from the Commission. Applications for such permits were invited, the Division’s Report observing that the activities presently condemned should not prejudice such applications.18 This disposition was approved by the full Commission on reconsideration.19

*381 The Commission dealt with the problem before it by setting out two inquiries which would have to be satisfied before the operations in question could be held to constitute private carriage: First, it would have to be found that no person other than Oklahoma had “any right to control, direct, and dominate” the transportation. Second, it would have to be found that no person before the Commission was “in substance, engaged in the business of . . . transportation of property ... for hire.” 20 The Commission found against the respondents on both tests. In connection with the first, or “control,” test the Commission pointed out that earlier decisions had established a presumption of for-hire transportation whenever equipment was leased by a shipper, which presumption might be defeated by a showing that the shipper had retained the exclusive right to control the operation. Despite the evidence of actual shipper control in this case, the Commission held that the presumption of for-hire transportation remained in effect because “There is present, whenever the owner-operator drives his own equipment, the right and power of the lessor to defeat any supposed right to control that the shipper-lessee may believe exists.”21 The three-judge District Court reversed the Commission’s conclusion relative to shipper control,22 and that action of the District Court is not challenged by the Commission on this appeal.23

*382 But a finding of shipper control does not require a resolution of the ultimate issue in the shipper’s favor.24 It is true that until recently, “control” has been at the focus of the Commission’s efforts to delineate verbally the permissible area of non-licensed leases of transportation equipment. The initial technique of the Commission was to assess the lessee-shipper’s assumption of the burdens of transportation in terms of the degree to which he undertook to “control” or “dominate” it.25 The interest in “control” in turn generated an interest in whether the drivers of leased equipment were in substance treated as the shipper’s employees.26 Throughout, however, Com *383 mission reports have taken note of various factors which clearly transcend any narrow concept of physical direction of the details of the operation; and it has always been apparent that the vesting of such physical “control” in the shipper would not in itself suffice to render the transportation private carriage.27

Latterly, the Commission has begun to move away from “control” as the verbal embodiment of its manifold inquiry.28 The Commission thus accords explicit recognition to a premise which has long been implicit in its deci *384 sions: That some indicia of private carriage may be assumed, and detailed surveillance of operations undertaken, without a shipper’s having significantly shouldered the burdens of transportation. The test of substance with which the Commission supplemented its “control” inquiry in this case thus betokens no heedless departure from the beaten track of administrative decision which might occasion a judicial curb upon the exercise of administrative discretion.29 No more so does the inclusion in the arrangement between Oklahoma and its owner-drivers of a number of particulars also discoverable in arrangements found to constitute private carriage m earlier Commission decisions. We deal in totalities; indicia are instruments of decision, not touchstones. The Commission allowably dealt with this novel situation as an integral and unique problem in judgment, rather than simply as an exercise in counting commonplaces. Nor did it leave the basis for its decision unarticulated.

*385 The Commission's meaning in applying the test of substance in this case is clearly told in the following language in its report:

“Here each owner-operator assigns his motor vehicle for a continuing period of time to the exclusive use of the company, furnishing a service designed to meet the distinct need of the company. He provides a service in which the equipment is furnished, maintained, and driven by the owners thereof to transport property in interstate commerce. He guarantees a fixed and definite cost for the transportation, bears the risk of profit or loss from such transportation hazards as delays in transit, breakdowns of equipment, and highway detours, and meets all of the cost of operation including appropriate licenses and trip expenses.” 79 M. C. C., at 412.

It is evident that the Commission here refused to allow Oklahoma the status of a private carrier because of its belief that financial risks are a significant burden of transportation, and its belief that such risks had been shifted by Oklahoma to the owner-operators to an extent which rendered the sanctioning of the operation as private carriage a departure from the statutory design. We think that such conclusions were well within the range of the responsibility Congress assigned to the Commission. The District Court explicitly recognized the propriety of the Commission’s inquiring into the substance of the arrangements. Yet the court’s conclusion that “what is involved here is private carriage on the part of the Company, rather than transportation for-hire by the owner-operators,” 193 F. Supp., at 281, rests on no articulated premise other than that Oklahoma did have control. If the court intended to hold that the Commission is confined to the “control” test, we think it clearly in error in view of the *386 statutory objectives which we have set forth above. If, on the other hand, the court meant to substitute its judgment for the Commission’s on the question of substance, we think that, on this record, it indulged in an unwarranted incursion into the administrative domain.

Reversed.

Interstate Commerce Act § 204 (c), 49 Stat. 547, as amended, 49 U. S. C. § 304 (c):

“Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.”

Interstate Commerce Act § 203 (a) (15), 49 Stat. 544, as amended, 49 U. S. C. § 303 (a) (15):

“The term ‘contract carrier by motor vehicle’ means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) of this section and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.”

Interstate Commerce Act §203 (a) (14), 49 Stat. 544, as amended, 49 U. S. C. § 303 (a) (14), defines “common carrier” as follows:

“The term 'common carrier by motor vehicle’ means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, except transportation by motor vehicle by an express company to the extent that such transportation has heretofore been subject to chapter 1 of this title, to which extent such transportation shall continue to be considered to be and shall be regulated as transportation subject to chapter 1 of this title.”

Interstate Commerce Act § 209 (a) (1), 49 Stat. 552, as amended, 49 U. S. C. §309 (a)(1);

“Except as otherwise provided in this section and in section 310a of this title [exceptions not here pertinent], no person shall engage in the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway or within any reservation under the exclusive jurisdiction of the United States unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such person to engage in such business . . . .”

See also Interstate Commerce Act §203 (c), 71 Stat. 411, as amended, 49 U. S. C. § 303 (c) :

“Except as provided in section 302 (c) of this title, subsection (b) of this section, in the exception in subsection (a) (14) of this section, *373 and in the second proviso in section 306 (a) (1) of this title [none of which exceptions are here pertinent], no person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce, on any public highway or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such person a certificate or a permit issued by the Commission authorizing such transportation, nor shall any person engaged in any other business enterprise transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.'’

The United States intervened as defendant, 28 U. S. C. §2322, and appellee Weather-Seal and appellant Regular Common Carrier Conference intervened as plaintiff and defendant respectively, 28 U. S. C. § 2323.

Interstate Commerce Act § 203 (a) (17), 49 Stat. 545, 49 U. S. C. § 303 (a)(17):

“The term 'private carrier of property by motor vehicle’ means any person not included in the terms ‘common carrier by motor vehicle' or ‘contract carrier by motor vehicle’, who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.”

49 Stat. 543-567, as amended, 49 U. S. C. §§ 301-327.

See S. Rep. No. 482, 74th Cong., 1st Sess. 2; H. R. Rep. No. 1645, 74th Cong., 1st Sess. 3; S. Doc. No. 152, 73d Cong., 2d Sess. 14-15, 22-23 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies).

Id., at 14.

See S. Rep. No. 482, 74th Cong., 1st Sess. 1; H. R. Rep. No. 1645, 74th Cong., 1st Sess. 4; H. R. Doc. No. 89, 74th Cong., 1st Sess. 17 (Report of Federal Coordinator of Transportation on Transportation Legislation).

See notes 2, 5, supra.

See note 3, supra.

See S. Doc. No. 152, 73d Cong., 2d Sess. 33 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies). That concern has found recent legislative expression in a 1958 amendment designed to curb so-called “buy-sell” evasions by purported or “pseudo” private carriers. 72 Stat. 568, 574, amending the Interstate Commerce Act §203 (c), 49 U. S. C. §303 (c). See S. Rep. No. 1647, 85th Cong., 2d Sess. 23-24; H. R. Rep. No. 1922, 85th Cong., 2d Sess. 17-19.

Robinson v. Woodard, 227 Ark. 102, 296 S. W. 2d 672.

While such a discharge would not automatically terminate the affected driver’s truck-lease agreement, it seems obvious that he would immediately exercise his 30-day cancellation privilege and thus remove his truck from Oklahoma’s service.

In contrast, the short-haul drivers of company-owned tractors received $50 per week plus two cents per mile.

The provision of the collective agreement that the owner-drivers “shall be required to maintain the truck in good running condition” superseded, in the parties’ practice, Oklahoma’s undertaking in the lease agreement “to keep and maintain said motor vehicle equipment at all times while in operation under this lease agreement, in first class operating condition and in complete compliance with all safety rules and regulations of all State and Federal regulatory bodies.” See 79 M. C. C., at 406, 407; 193 F. Supp., at 278.

Oklahoma paid an extra three cents per mile rental when there was a load of raw materials in the backhaul. This differential was explained as covering the cost of additional wear and tear and fuel purchases occasioned by the heavier raw materials transported on the return trips. At least to the extent that the differential was in fact absorbed by such incremental costs, it cannot be said to have represented the shifting of any financial risk.

79 M. C. C., at 415. Appellees assert that there is no presently licensed carrier able or willing to provide the type of service essential to Oklahoma's survival as a competitor. See Brief for Henry E. Drum et al., at 3. That circumstance should be presented to and considered by the I. C. C. in passing on appellees’ permit applications ; but it is not a reason for bypassing the Commission’s licensing power if Oklahoma is not a private carrier.

R. 167.

79 M. C. C., at 409-410.

79 M. C. C., at 411.

193 F. Supp., at 281-282.

See Brief for the United States and Interstate Commerce Commission at 17, n. 8:

“In this appeal, we do not challenge the district court’s conclusion that the evidence did not warrant a finding that Oklahoma lacked full control of the details of the operation. Nor do we argue as to whether the court below gave too narrow a meaning to the Commission’s control test. We assume, for present purposes, that the court below correctly applied that test as relating only to the operational aspects of the transportation.”

We need not and we do not now pass on the Commission’s view that if the shipper does not direct the details of the operation he cannot be a private carrier.

The leading case is H. B. Church Truck Service Co., 27 M. C. C. 191, 195:

"Essentially the issue is as to who has the right to control, direct, and dominate the performance of the service. If that right remains in the carrier, the carriage is carriage for hire and subject to regulation. If it rests in the shipper, it is private carriage and not subject to regulation

It was the H. B. Church case which established the presumption that a lease of equipment results in for-hire carriage. The presumption was said to “yield to a showing that the shipper has the exclusive right and privilege of directing and controlling the transportation service, as, for example, if the equipment were operated by the shipper’s employee.” 27 M. C. C., at 196.

See, e. g., Watson Mfg. Co., 51 M. C. C. 223, 226; R. N. G. Commercial Auto Renters, Inc., 73 M. C. C. 665, 670.

Teamsters Union v. Oliver, 358 U. S. 283, did not, as appellees suggest (Brief for Henry E. Drum et al., at 29), hold that owner-operators are in any sense "employees.” That case held that a bargaining unit including an overwhelming majority of concededly employed drivers of carrier-owned equipment was entitled, under § 8 (d) of the National Labor Relations Act, 61 Stat. 142, 29 U. S. C. § 158 (d), to bargain to impasse concerning minimum rentals to be received by owner-drivers. It was not necessary to determine *383 whether the owner-drivers were “employees” protected by the Act, since the establishment of the minimum rental to them was integral to the establishment of a stable wage structure for clearly covered employee-drivers. See id., at 294-295.

See, e. g., Edward Allen Carroll, 1 M. C. C. 788; Centre Trucking Co., 32 M. C. C. 313; William A. Shields, 41 M. C. C. 100; John J. Casale, Inc., 44 M. C. C. 45; Motor Haulage Co., 46 M. C. C. 107; Jacobs Transfer Co., 46 M. C. C. 265; John J. Casale, Inc., 49 M. C. C. 15; R. N. G. Commercial Auto Renters, Inc., 73 M. C. C. 665.

See Pacific Diesel Rental Co., 78 M. C. C. 161, 172-173:

“The primary question here . . . can be asked in two forms; namely (1) Is the transportation here involved such that any person or persons other than the purported private carriers have any right to control, direct, and dominate it, or (2) Are any persons here, in substance, engaged in the business of interstate or foreign transportation of property on the public highways for hire? . . . We are convinced here that, even if all the responsibilities of an employer with respect to the driver are assumed by a shipper, the service offered . . . is, in substance, for-hire motor carriage subject to regulation under part II of the act. To hold otherwise would be inconsistent with the remedial purpose of part II and would be in contravention of our duty, imposed by Congress .... It is evident that, were we to hold that the shipper’s assumption (as an employer) of certain responsibilities which more normally fall upon a carrier, transforms an operation which, apart from such assumption, is clearly a for-hire carrier service, into an operation different in substance, we would open the door to unfair and destructive competitive practices contrary to the national transportation policy declared by Congress.”

The courts have commonly articulated their plotting of the boundary between private and regulated carriage in leased equipment cases in terms of over-all substance, rather than simply in terms of “control.” See Georgia Truck System, Inc., v. I. C. C., 123 F. 2d 210, 212 (“[A]ppellant, in substance and in reality, operates a transportation business.”); A. W. Stickle & Co. v. I. C. C., 128 F. 2d 155, 160, 161 (test of “substance and reality”); Lamb v. I. C. C., 259 F. 2d 358, 360 (“Simply stated [the issue] ... is who was transporting the goods in question.”); B & C Truck Leasing, Inc., v. I. C. C., 283 F. 2d 163, 165 (test of “substance and effect"); I. C. C. v. Isner, 92 F. Supp. 582; United States v. La Tuff Transfer Service, 95 F. Supp. 375; I. C. C. v. Werner, 106 F. Supp. 497; cf. Bridge Auto Renting Corp. v. Pedrick, 174 F. 2d 733; John J. Casale, Inc., v. United States, 114 Ct. Cl. 599, 86 F. Supp. 167. But cf. Earle v. Babler, 180 F. 2d 1016; Vincze v. I. C. C., 267 F. 2d 577; Motor Haulage Co. v. United States, 70 F. Supp. 17, affirmed, 331 U. S. 784; I. C. C. v. Gannoe, 100 F. Supp. 790; Allen v. United States, 187 F. Supp. 625.