American Trucking Associations, Inc. v. I. C. C., 81-4026

Decision Date25 February 1982
Docket NumberNo. 81-4026,81-4026
Citation669 F.2d 957
PartiesAMERICAN TRUCKING ASSOCIATIONS, INC., et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and The United States of America, Respondents.
CourtU.S. Court of Appeals — Fifth Circuit

William French Smith, Atty. Gen., U. S. Dept. of Justice, Robert J. Grady, I.C.C., Gen. Counsel, Kenneth P. Kolson, App. Sec., Robert B. Nicholson, Antitrust Div., Dept. of Justice, Washington, D. C., for respondents.

Serby & Mitchell, P. C., Alan E. Serby, Atlanta, Ga., for Brannan, Owen, Refrigerated.

Brooks & Matthews, Hugh T. Matthews, Dallas, Tex., for Steere.

Perry, Crockett, Morrisson & Starling, Donald B. Morrison, Jackson, Miss., for Merchants.

Alan J. Thiemann, Gen. Counsel, William H. Shawn, Sp. Counsel, Washington, D. C., for American and Red Arrow and Merchants Truck & Steere.

Robinson, Felts, Starnes & Latting, P. C., Phillip Robinson, Austin, Tex., for Central, Great Western, Miller and Saia.

Phinney, Hallman, Pulley & Coke, Leroy Hallman, Dallas, Tex., for Frozen, Southwestern.

Alan F. Wohlstetter, Stanley I. Goldman, Washington, D. C., for Aero Mayflower, et al.

Thomas E. James, Dallas, Tex., James M. Doherty, Austin, Tex., for Rose Truck Line, et al.

Bruce E. Mitchell, Alan Serby, Atlanta, Ga., for Motor Carrier Lawyers Assoc.

Eugene C. Ewald, Bloomfield Hills, Mich., for Nat. Auto. Transporters.

Keith G. O'Brien, Edward K. Wheeler, Washington, D. C., for Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

Dennis Dean Kirk, Washington, D. C., for Specialized Carriers.

On Petition to Compel Enforcement of This Court's Mandate.

Before RUBIN, RANDALL and TATE, Circuit Judges.

PER CURIAM:

In a prior opinion, 1 we dealt with trade association challenges to rules and a policy statement adopted by the Interstate Commerce Commission in response to the enactment of the Motor Carrier Act of 1980, Pub.L.No.96-296, 94 Stat. 793 (1980). We held that the rules, guidelines, and policy statements dealing with new applications for operating authority and applications for removal of restrictions from existing operating authorities were all, in reality, binding rules, and that some of these rules were within the ICC's discretion while others transgressed its statutory mandate. We remanded to the Commission to permit it to enact rules within the statutory bounds of the Motor Carrier Act.

I.

On January 6, 1982, the American Trucking Associations and other petitioners and intervenors 2 filed a petition asserting that the ICC "has repeatedly violated both the express and necessarily implied holdings of this court" and seeking to compel compliance with our mandate. 3 On January 11, 1982, the Household Goods Carrier Intervenors 4 filed a Supplemental Petition, likewise seeking enforcement of our mandate. To accomplish this, the petitions, as clarified by later briefs, request that we issue an order 1. Compelling the ICC to comply in all pending actions before it with the "full scope of this Court's opinion;"

2. Requiring the ICC to review all administratively final decisions issued since October 1, 1981, and, after hearings contradictorily with the certificate and permit holders, to vacate all decisions that grant certificates or issue permits in violation of the mandate; and

3. Compelling the ICC, if it adopts any replacement rules of an interim nature, to submit those rules to the Court for its approval within 10 days after petitioners have had the opportunity to respond and further compelling the ICC to publish these approved rules in the Federal Register.

The ICC has not proposed any new rules. In support of their position, petitioners have called our attention to ICC decisions indicating that the ICC has not complied with our prior opinion in acting on some individual applications for new operating authority or on some applications for removal of restrictions from existing operating authorities. In this opinion, we do not attempt to evaluate the ultimate correctness of these representations, which are relevant only to parts 2 and 3 of the order sought, and we of course intimate no opinion concerning the validity of any certificate or permit issued or revised before the date of this opinion. We consider only the issues concerning the ICC's future action, raised in part 1 of the order sought. Although the Department of Justice concedes that we have power to clarify the scope of our mandate, the ICC disputes our authority to do so. Accordingly, we turn first to that question.

City of Cleveland v. FPC, 561 F.2d 344 (D.C.Cir.1977), was the sequel to an earlier opinion by the District of Columbia Circuit. The court's original "mandate directed further proceedings by the Commission." Id. at 345 (footnote omitted). Thereafter a controversy "rage(d) over the scope of the investigation that the Commission is thus obliged to make." Id. The court held that it had the power to issue a writ of mandamus that would resolve this controversy by clarifying its previous mandate, saying:

The decision of a federal appellate court establishes the law binding further action in the litigation by another subject to its authority. The latter "is without power to do anything which is contrary to either the letter or spirit of the mandate construed in the light of the opinion of (the) court deciding the case," and the higher tribunal is amply armed to rectify any deviation through the process of mandamus. "That approach," we have said, "may appropriately be utilized to correct a misconception of the scope and effect of the appellate decision." These principles, so familiar in operation within the hierarchy of judicial benches, indulge no exception for reviews of administrative agencies. Our mission thus becomes definition of the exploratory obligation which our mandate laid upon the Commission, and for guidance we refer to our previous opinion.

Id. at 346-47 (footnotes omitted). See also Oswald v. McGarr, 620 F.2d 1190, 1196 (7th Cir. 1980) ("Mandamus is appropriate to review compliance with discretionary standards and nondiscretionary commands set forth in an earlier opinion concerning the parties."); Weiser v. White, 505 F.2d 912, 915 (5th Cir. 1975) (it is a "settled principle that a mistake in construction of a mandate should ordinarily be corrected by the court which issued the mandate"), cert. denied, 421 U.S. 993, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 278 (D.C.Cir.1971) ("an appellate court likewise has continuing power to accept and pass upon a petition to clarify an outstanding mandate"), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972). Indeed, the ICC concedes that mandamus is the appropriate remedy to enforce the judgment of an appellate court, itself correctly citing, inter alia, Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305, 310 (1967), and the cases cited supra. It contests only the adequacy of the showing made to warrant issuance of the writ.

Since October 1, the ICC asserts, it has issued 5000 permits or certificates and it is impossible to determine which of these might be affected by the ruling without examining the record in each proceeding. The American Trucking Associations petition and that of the Household Goods Carriers cite numerous examples of certificates that do not appear to comply with our ruling. The Household Goods Carriers alone cite sixty-two cases where the Commission issued household goods certificates that appear to violate the ruling. If, indeed, the ICC is not complying with our prior opinion, it is creating the potential for massive future litigation. The volume of matters the ICC is handling is so great that applicants, opponents, and the public, as well as the Commission, should know with certainty the terms of our opinion and enforcing mandate. Absent action by the ICC to effectuate those parts of our opinion requiring changes in its published rules, it is difficult for interested persons or the public to know the procedures in effect and, particularly, the invalidity of those announced guidelines that have been declared invalid.

Three months after the rendition of our prior opinion, the ICC has not fully complied with it. Yet it is apparently continuing to act in many cases without applying the principles that are exacted by the Motor Carrier Act, as interpreted in our prior opinion. Litigation in scores of cases is not adequate remedy for an agency's failure to carry out its statutory duties. Therefore, there is no adequate alternative remedy. Allied Chemical Corp. v. Daiflon, 449 U.S. 33, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). Because the ICC has promulgated rules never rescinded, it has obviously chosen not to interpret the requirements of the Motor Carrier Act on a case by case basis. Indeed, the ICC anomalously invites us to review and comment on an unpublished interim procedures memorandum issued by it for the professed internal guidance of its staff, and to render an opinion that it suggests would be "advisory" concerning whether the procedures there outlined would lead to "unlawful decisions." Our jurisdiction is, however, limited to cases and controversies, Art. III, § 2, United States Constitution, and we clearly lack jurisdiction to advise the ICC. Hayburn's Case, 2 Dall. (2 U.S.) 408, 1 L.Ed. 436 (1792).

Adopting the position taken in City of Cleveland v. FPC, supra, we hold that we have jurisdiction to enforce our prior mandate. Having the power, we also have the duty to clarify the mandate and to direct future compliance with it by mandamus. Accordingly, we issue a writ of mandamus to accomplish those ends. After further study, we will issue an opinion dealing with the other issues, summarized in parts 2 and 3 of the recital of the relief sought by the petitioners. See page 960, supra.

II.
A. RESTRICTION REMOVAL

First, we deal with the effect of our opinion on the Restriction Removal...

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