613 F.2d 1182 (1st Cir. 1980), 79-1189, Interstate Commerce Commission v. B & T Transp. Co.

Docket Nº:79-1189.
Citation:613 F.2d 1182
Party Name:INTERSTATE COMMERCE COMMISSION, Plaintiff, Appellant, v. B & T TRANSPORTATION CO. and Bos-Taun Consolidating Co., Inc., Defendants, Appellees.
Case Date:January 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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613 F.2d 1182 (1st Cir. 1980)

INTERSTATE COMMERCE COMMISSION, Plaintiff, Appellant,

v.

B & T TRANSPORTATION CO. and Bos-Taun Consolidating Co.,

Inc., Defendants, Appellees.

No. 79-1189.

United States Court of Appeals, First Circuit

January 21, 1980

Argued Sept. 12, 1979.

Michael Martin, Chief, Section of Litigation, Bureau of Investigations and Enforcement, Washington, D. C., with whom Peter M. Shannon, Jr., Director, Washington, D. C., and John F. Curley, Regional Counsel, Boston, Mass., were on brief, for plaintiff, appellant.

Gary R. Greenberg, Boston, Mass., with whom Carl K. King, and Goldstein & Manello, Boston, Mass., were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, DOOLING, Senior District Judge. [*]

COFFIN, Chief Judge.

The Motor Carrier Act of 1935 forbids common carriers by motor vehicle to "charge . . . a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares, and charges specified in the tariffs in effect at the time . . . ." 49 U.S.C. § 317(b). Bos-Taun Consolidating Co., Inc., is a local consolidator, with its only place of business in Somerville, Massachusetts, which had no tariffs on file with the Interstate Commerce Commission (I.C.C.) to cover its consolidation charges. 1 B & T Transportation Co. is a certificated interstate motor carrier. On May 31, 1978,

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the I.C.C. filed a complaint in the United States District Court for the District of Massachusetts against B & T and Bos-Taun, alleging that defendants, acting together, charged customers for consolidating services with no tariff in effect reflecting the rate or charge for those services, in violation of 49 U.S.C. §§ 316(b), (d), and 317(b). 2 The I.C.C. bases its complaint upon the charge that B & T and Bos-Taun are owned, controlled, and managed in common as a single transportation enterprise. Bos-Taun's consolidation charges therefore should be deemed to be charges of B & T, the I.C.C. claims, and as such must be listed in tariffs on file with the I.C.C. The I.C.C. sought an injunction to restrain these activities pursuant to 49 U.S.C. § 322(b)(1). The I.C.C. also sought, on behalf of the shippers who had used Bos-Taun's consolidation services, restitution of Bos-Taun's overcharges. 3

The district court granted summary judgment for defendants. The I.C.C.'s request for an injunction was denied on grounds of mootness, since it was found that B & T was selling its operating rights as a motor carrier and withdrawing from that activity. The district court denied the I.C.C.'s request for restitution on the ground that the Motor Carrier Act "does not confer upon the I.C.C. the right to sue for recovery of damages." The court noted that § 304a of the Act authorizes shippers, the injured parties, to sue to recover charges made by a carrier in violation of the Act, but that neither the language of § 304a nor its legislative history shows any congressional intent to allow the I.C.C. to seek damages for the benefit of injured shippers. On appeal, the I.C.C. challenges these two district court determinations.

The decision whether an injunction shall be granted is a matter within the discretion of the district court. We think it clear that the district court reasonably exercised its discretion in finding that there is no reasonable expectation that B & T's alleged illegal conduct will recur. Plaintiff has not contested the affidavit of Albert P. Sagansky, the Vice President of B & T, which states that B & T has sold most of its operating rights as a motor carrier and is in the process of selling the remainder. Without any significant threat of further violation, the fact that defendants insist on the legality of their past conduct is irrelevant. See United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). In the unlikely event that a future violation should occur, the I.C.C. can seek an injunction at that time.

As a question of first impression, there might well be doubt about the I.C.C.' § power to seek restitution in view of the lack of any express, or even implicit, authorization of such power in the language of the Motor Carrier Act. Section 322(b)(1) of the Act provides:

"If any motor carrier . . . operates in violation of any provision of this chapter . . . the Commission . . . may apply for the enforcement thereof to the district court of the United States . . . The court shall have jurisdiction to enforce obedience . . . by a writ of injunction or other process, mandatory or otherwise, restraining such carrier

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. . . and such other person, or persons, acting in concert or participating with such carrier . . . from further violation. . . ."

By its terms this provision empowers the I.C.C. to seek only prospective injunctions to restrain future conduct, not restitution. Furthermore, as the district court emphasized, section 304a makes no mention of any authority in the I.C.C. to seek restitution on behalf of injured shippers. If we were writing on a blank slate, we might agree with the district court that the language of the Motor Carrier Act cannot justify the authority the I.C.C. claims. Despite our sympathy with the district court's conclusion, however, a review of applicable Supreme Court precedent compels us to reach a contrary holding.

In Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), the Supreme Court held that the Administrator of the Office of Price Administration could seek restitution of rents charged in excess of applicable rent control regulations issued under the Emergency Price Control Act of 1942, even though there was no language in the Emergency Price Control Act expressly conferring such authority. The Court stated its holding in broad terms:

". . . (T)he Administrator invoked the jurisdiction of the District Court to enjoin acts and practices made illegal by the Act and to enforce compliance with the Act. Such a jurisdiction is an equitable one. Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise...

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