694 F.2d 793 (D.C. Cir. 1982), 79-1299, United States v. Federal Maritime Com'n

Docket Nº:79-1299.
Citation:694 F.2d 793
Party Name:UNITED STATES of America, Petitioner, v. FEDERAL MARITIME COMMISSION, Respondent, Gulf-Kingdom Rate Agreement, Sea-Land Service, Inc., Japan/Korea-Atlantic and Gulf Freight, et al., Pacific Westbound Conference, et al., Seatrain International, S.A., Pacific Coast European Conference, et al., Intervenors.
Case Date:November 16, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 793

694 F.2d 793 (D.C. Cir. 1982)

UNITED STATES of America, Petitioner,

v.

FEDERAL MARITIME COMMISSION, Respondent,

Gulf-Kingdom Rate Agreement, Sea-Land Service, Inc.,

Japan/Korea-Atlantic and Gulf Freight, et al., Pacific

Westbound Conference, et al., Seatrain International, S.A.,

Pacific Coast European Conference, et al., Intervenors.

No. 79-1299.

United States Court of Appeals, District of Columbia Circuit

November 16, 1982

Argued Dec. 10, 1981.

As Amended Nov. 22, 1982.

Robert J. Wiggers, Atty., Dept. of Justice, Washington, D.C., with whom Robert B. Nicholson and John Powers, III, Attys., Dept. of Justice, Washington, D.C., were on the brief, for petitioner. Barry Grossman, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for petitioner.

C. Jonathan Benner, Gen. Counsel, Federal Maritime Com'n, Washington, D.C., with whom Edward G. Gruis, Deputy Gen. Counsel, Gordon M. Shaw and Carol J. Neustadt, Attys., Federal Maritime Com'n, Washington, D.C., were on the brief, for respondent.

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R. Frederic Fisher, San Francisco, Cal., with whom Charles L. Coleman, San Francisco, Cal., and Seymour H. Kligler, New York City, Pacific Westbound Conference, et al., David C. Nolan, San Francisco, Cal., Pacific Coast European Conference, et al., Charles F. Warren and George A. Quadrino, Washington, D.C., Japan/Korea-Atlantic and Gulf Freight Conference, et al., and Nathan J. Bayer, Atlantic and Gulf Panama Canal Zone, Calon and Panama City Conference, et al., Washington, D.C., were on the brief, for Conference intervenors.

Donald J. Brunner, Edward M. Shea and Francis W. Fraser, Washington, D.C., were on the brief, for intervenor Sea-Land Service, Inc.

Neal M. Mayer, Paul D. Coleman and David S. Healy, Washington, D.C., entered appearances for intervenor, Seatrain Intern., S.A.

Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, WILKEY, WALD, MIKVA, EDWARDS, and GINSBURG, Circuit Judges, and ROBB, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Dissenting statement filed by Circuit Judge MacKINNON and Senior Circuit Judge ROBB.

JUDGMENT

PER CURIAM.

This cause came on to be heard on a petition for review of an order of the Federal Maritime Commission, and was argued initially before a panel of this Court and subsequently before the Court sitting en banc.

On consideration of the foregoing, it is ORDERED by the Court en banc that the portion of the order entered herein on March 13, 1981, reading

FURTHER ORDERED by the Court en banc that the opinion and judgment of this Court entered on December 19, 1980, be, and the same hereby are, vacated.

be and hereby is amended to read as follows:

FURTHER ORDERED by the Court en banc that (a) Parts III and IV of the opinion of this Court filed on December 19, 1980, (b) Part V of said opinion to the extent that it recites the ruling made in Parts III and IV thereof, and (c) the judgment of this Court entered on December 19, 1980, to the extent that it implemented the ruling made in Parts III and IV of said opinion, be, and the same hereby are, vacated, all other portions of said opinion and judgment to remain in full force and effect.

and it is

FURTHER ORDERED by the Court en banc that the opinions of members of the panel, majority and dissenting, filed on December 19, 1980, be reproduced as an appendix to this judgment and the opinions accompanying it; and it is

ADJUDGED and FURTHER ORDERED by the Court en banc that the petition for review be and hereby is dismissed as moot; and it is

FURTHER ORDERED by the Court en banc that the order of the Federal Maritime Commission approving Agreement No. 10140-8--Extension of U.S. Gulf/United Kingdom Rate Agreement, dated August 30, 1978, and served January 19, 1979, be, and the same hereby is, vacated.

PER CURIAM:

This litigation emanates from an order of the Federal Maritime Commission approving an agreement among six ocean carriers fixing, for two of them, overall through rates for inland transportation by rail or motor carrier as well as for transportation at sea. The order originally came on for review by a panel of this court, which (a) held unanimously that the Department of Justice, on behalf of the United States, had standing to attack the order and that its challenge was justiciable, 1 and (b) further

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held, by a majority vote, that the Commission was statutorily empowered to approve the agreement. 2 The panel was in accord on remand of the case for further administrative proceedings, though not upon the scope of the inquiry to be conducted. 3

Two of the litigants thereafter suggested rehearing en banc: Sea-Land Service, Inc., of the holdings on standing and justiciability; 4 and the United States, of the holding on Commission authority. 5 We denied Sea-Land's suggestion, 6 thus leaving the panel's standing and justiciability rulings intact, and granted the United States' suggestion with a view to reexamining the question of Commission jurisdiction. 7 Our implementing order, however, directed overbroadly a vacatur of the panel's opinion and judgment, and not simply to the extent that they were to be reheard. We remedy that inadvertence by amending the order to make clear that the vacatur was limited to the panel's action respecting Commission power to approve the agreement.

Turning now to that aspect of the case, we find that the controversy regarding it is no longer alive. The agreement in question has expired, and no prospect of its revival is in sight. Although the Commission continually approves agreements of this sort, that, coupled with the fact that some such agreements have fairly long terms, assures ample opportunity for the United States to litigate the issue of Commission jurisdiction in some other case, as indeed it already is. 8 We accordingly dismiss the petition for review as moot, and vacate the Commission order precipitating it. 9

Statement of Judges MacKinnon and Robb

The en banc court has amended its order vacating the panel opinion and reinstates only that portion of the opinion addressing the standing and justiciability issues. (Parts I and II of the panel's opinion). That part of the panel's opinion regarding the Commission's power to approve an agreement among six ocean carriers setting shipping rates for intermodal routes has not been reinstated. The agreement, which required periodic renewal, was not renewed on March 1, 1981; thus, it expired by its own terms on that date. The en banc court concluded, therefore, that the controversy regarding the agreement was presently moot.

Judges MacKinnon and Robb respectfully dissent from the refusal to reinstate the entire panel opinion. The controversy regarding the Commission's power to approve the agreement was a live controversy when the panel opinion was rendered. We believe, therefore, that those portions of the panel's opinion dealing with this issue should also stand. (Parts III and IV).

APPENDIX

Argued March 13, 1980

Decided December 19, 1980

Before MacKINNON, ROBB and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

Opinion filed by Circuit Judge WALD, concurring in part and dissenting in part.

MacKINNON, Circuit Judge:

The Antitrust Division of the Department of Justice (hereafter also referred to as the Department, or Justice) petitions under the Hobbs Act 1 for review of an order entered by the Federal Maritime Commission (hereafter referred to as the Commission or Maritime). The order approved a shipping rate agreement among six ocean carriers that, for two of the carriers, covers intermodal routes which involve movement by rail or motor vehicle as well as by sea. The Department contends that the Commission has no jurisdiction to approve rates pertaining in part to land carriage and that in any event it failed to hold an adequate hearing. Joining the Commission in resisting these contentions are intervenors who dispute that the Department has standing to challenge the Maritime order. 2 We conclude the Department does have standing, but also conclude that the Commission had statutory authority to pass upon the rate agreement. Because the Commission failed to secure sufficient information on which to base an informed judgment, however, we remand the order for further consideration by the Commission.

I. BACKGROUND

Under section 15 of the Shipping Act of 1916, 46 U.S.C. Sec. 814, a broad variety of anticompetitive agreements between persons who are subject to the Act must be filed with Maritime. 3 Section 15 directs the Commission to approve such an agreement, "after notice and hearing," if the Commission concludes the agreement is neither "unjustly discriminatory or unfair" as between specified classes, "detriment[al] [to] the commerce of the United States," in violation of some other provision of the Act, nor "contrary to the public interest." The agreement is unlawful if implemented prior to approval, but, once approved, it is "excepted from the provisions of [the antitrust laws]." 46 U.S.C. Sec. 814; FMC v. Pacific Maritime Association, 435 U.S. 40, 45, 98 S.Ct. 927, 931, 55 L.Ed.2d 96 (1978); Volkswagenwerk v. FMC, 390 U.S. 261, 271, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968). The Shipping Act further provides that no part of it shall be construed "to confer upon the [Commission] concurrent power or jurisdiction over any matter within the power or jurisdiction of [the] Interstate Commerce Commission [ICC]...." Shipping Act Sec. 33, 46 U.S.C. Sec. 832.

This proceeding arose out of Commission Agreement No. 10140, which was filed with the Commission and received its approval on May 1, 1975. 4 The Agreement was entered into by...

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