624 F.2d 822 (8th Cir. 1980), 79-1075, Kansas City Ry. Co. v. Great Lakes Carbon Corp.

Docket Nº:79-1075.
Citation:624 F.2d 822
Party Name:KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. GREAT LAKES CARBON CORPORATION, Appellee.
Case Date:June 16, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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624 F.2d 822 (8th Cir. 1980)

KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant,

v.

GREAT LAKES CARBON CORPORATION, Appellee.

No. 79-1075.

United States Court of Appeals, Eighth Circuit

June 16, 1980

Submitted Jan. 16, 1980.

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Robert K. Dreiling, Kansas City, Mo., for appellant; John P. Emde, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., on brief.

Dickinson R. Loos, Ballard & Loos, Washington, D.C., for appellee; G. Carroll Stribling and W. W. Dalton, St. Louis, Mo., on brief.

Before LAY, Chief Judge, HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges, En banc.

LAY, Chief Judge.

In an earlier decision this court overturned the district court's denial of Kansas City Southern Railway Company's (Railway Co.), motion to set aside a judgment under Rule 60(b)(4) of the Federal Rules of Civil Procedure. Kansas City Southern Railway v. Great Lakes Carbon Corp., September 24, 1979. A motion for rehearing was granted, and this decision follows argument to the court en banc.

The Railway Co. originally sued Great Lakes Carbon Corporation, (GLC), for additional freight charges, claiming it had undercharged GLC because a higher, specific commodity rate should apply to petroleum coke that GLC shipped. GLC urged a lower freight-all-kinds rate applied. It also counterclaimed for overcharges on another shipment. On the parties' joint motion, the district court referred interpretation of tariff items and their reasonableness to the Interstate Commerce Commission, (ICC), and held the lawsuit in abeyance. The ICC affirmed an administrative law judge's decision that generally sustained the Railway Co.'s tariff interpretation. However, it held it would be unjust and unreasonable for the Railway Co. to collect the full tariff for the shipment upon which its complaint was based. Under the ICC decision, the Railway Co. would have recovered a reduced amount and GLC would not have recovered anything on its counterclaim. Each party then filed for summary judgment in the district court. The court entered judgment for the Railway Co. on its complaint for $29,898.32 plus interest, in accord with the ICC decision. However, the court held it was not bound by the ICC decision, and therefore granted GLC's motion for summary judgment on its counterclaim, entering judgment on its behalf for $129,026.47 plus interest.

The Railway Co. did not appeal within 30 days as required by Rule 4(a) of the Federal

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Rules of Appellate Procedure. After its motion for an extension of time was denied, it attempted to resurrect a judgment for appeal by petitioning this court for a writ of mandamus that would order the district court to rule on its motion for summary judgment. We dismissed the petition, stating that the Railway Co.'s motion for summary judgment as to GLC's counterclaim had been ruled upon and we viewed the petition as an attempt to file an untimely appeal. Kansas City Southern Railway v. Wangelin, 582 F.2d 1288 (8th Cir. 1978) (mem.).

The Railway Co. then filed a motion in district court, asserting that under Rule 60(b)(4) of the Federal Rules of Civil Procedure the judgment should be set aside as void. It argued the district court lacked subject matter jurisdiction because it did not follow the procedure set forth in chapter 157 of title 28, sections 2321-23, for review of an ICC order, namely joinder of the United States as a defendant. 28 U.S.C. § 2322. The district court denied relief, stating it had considered the basic issues raised in its earlier opinion, from which no appeal had been taken. The Railway Co. appealed, and a panel of this court reversed the district court, holding inter alia, that the original judgment was void and could be set aside under Rule 60(b)(4). The court acting en banc now vacates that decision and enters judgment affirming the district court.

In this appeal we assume, without deciding, that under the jurisdictional facts presented the United States was required to be joined as a party defendant pursuant to 28 U.S.C. § 2322 once GLC sought review of the ICC decision by motion for summary judgment. The fundamental question presented here is whether Rule 60(b)(4) 1 may serve as the procedural vehicle to attack the judgment on the ground that it is a nullity because of the absence of the United States.

In Schwartz v. Bowman, 244 F.Supp. 51, 65-69 (S.D.N.Y.1965), aff'd sub nom. Annenberg v. Alleghany Corp., 360 F.2d 211 (2d Cir.) (per curiam), cert. denied, 385 U.S. 921, 87 S.Ct. 230, 17 L.Ed.2d 145 (1966), the court held an ICC order could not be attacked indirectly under the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq.; it held chapter 157 of title 28, the Urgent Deficiencies Act, is the exclusive method for enforcement or review of ICC orders. As the claim had not been brought under the Urgent Deficiencies Act and none of its procedural requirements had been met, including joinder of the United States, the court held it lacked jurisdiction. This holding only serves to obscure the question presented in this appeal. 2 Assuming

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the district court erred here in finding jurisdiction despite the absence of the United States, 3 the question upon which relief hinges is whether that error, never presented on appeal from the judgment, may nevertheless be corrected in a Rule 60(b)(4) proceeding on the ground that it renders the judgment void. We conclude that the judgment is not void within the meaning of Rule 60(b)(4), and any jurisdictional defect caused by nonjoinder may not now be challenged. 4

Absence of subject matter jurisdiction may, in certain cases, render a judgment void. See e.g., Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940). However, this occurs only where there is a plain usurpation of power, when a court wrongfully extends its jurisdiction beyond the scope of its authority. Stoll v. Gottlieb, 305 U.S. 165, 171, 59 S.Ct. 134, 137, 83 L.Ed. 104 (1938); see Coalition of Black Leadership v. Cianci, 570 F.2d 12, 15 (1st Cir. 1978) (quoting Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972)); Ben Sager Chemicals v. E. Targosz & Co., 560 F.2d 805, 812 (7th Cir. 1977); 7 Moore's Federal Practice P 60.25(2) at 302-3 (2d ed. 1979). Stated another way, such plain usurpation of power occurs when there is a "total want of jurisdiction" as distinguished from "an error in the exercise of jurisdiction." Lubben v. Selective Service System, 453 F.2d at 649. Since federal courts have "jurisdiction to determine jurisdiction," that is, "power to interpret the language of the jurisdictional instrument and its application to an issue by the court," Stoll v. Gottlieb, 305 U.S. at 171, 59 S.Ct. at 137, error in interpreting a statutory grant of jurisdiction is not equivalent to acting with total want of jurisdiction. Such an erroneous interpretation does not render the judgment a complete nullity. See Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 376-77, 60 S.Ct. 317, 319-320, 84 L.Ed. 329 (1940); Moore's, supra P 60.25(2), at 296-97. A void judgment, as opposed to an erroneous one, is one which from its inception was legally ineffective. See Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Jordan v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1996, 44 L.Ed.2d 481 (1975); Lubben v. Selective Service System, 453 F.2d at 649; 7 Moore's, supra P 60.25(2). 5

In the present case, even assuming the district court erred in construing its statutory grant of authority by not joining the United States, we hold such jurisdictional error does not render the judgment void within the meaning of Rule 60(b)(4).

We reach this conclusion because the court was vested with power to deal with this type of case and had acquired jurisdiction

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over the parties before it. 6 It is clear that the district court had original jurisdiction to decide GLC's and the Railway Co.'s claims under 28 U.S.C. § 1337(a); it also had jurisdiction to review the ICC order entered upon referral under 28 U.S.C. § 1336(b). 7 It had jurisdiction over the general subject matter and accordingly could decide whether the United States should be joined and whether its nonjoinder was a jurisdictional defect. Even assuming the district court erred, the error has no bearing on its power to decide those issues.

The district court implicitly decided whether joinder of the United States, a prerequisite for review under 28 U.S.C. §§ 2321(a), 2342, was also required for it to review an order under 28 U.S.C. § 1336(b). With jurisdiction over the type of case and over the parties, the court could enter a judgment for money damages. In doing so, it could determine whether it had jurisdiction to entertain the parties' motions for summary judgment and for this purpose construe and apply the statutes under which it was requested to grant relief. An erroneous decision on the interpretation and applicability of sections 1336(b) and 2322 would not deprive it of power to decide. As the Supreme Court has stated:

Whatever the contention as to jurisdiction may be, whether it is that the boundaries of a valid statute have been transgressed, or that the statute itself is invalid, the question of jurisdiction is still one for judicial determination.

Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 377, 60 S.Ct. 317, 320, 84 L.Ed.2d 329 (1940).

Under the circumstances, the judgment may not be vacated under Rule 60(b)(4). Marshall v. Board of Education, 575 F.2d 417, 422 (3rd Cir. 1978); Coalition of Black Leadership v. Cianci, 570 F.2d at 15-16 (by implication); Ben Sager Chemicals v. E. Targosz & Co., 560 F.2d at 812; cf. Jackson v. Irving Trust Co., 311 U.S. 494, 61 S.Ct. 326, 85 L.Ed. 297...

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