765 F.2d 164 (D.C. Cir. 1985), 84-1195, National Classification Committee v. United States

Docket Nº:84-1195, 84-1329.
Citation:765 F.2d 164
Party Name:NATIONAL CLASSIFICATION COMMITTEE and National Motor Freight Traffic Association, Inc., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. NATIONAL CLASSIFICATION COMMITTEE and National Motor Freight Traffic Association, Inc., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respond
Case Date:June 14, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 164

765 F.2d 164 (D.C. Cir. 1985)

NATIONAL CLASSIFICATION COMMITTEE and National Motor Freight

Traffic Association, Inc., Petitioners,

v.

UNITED STATES of America and Interstate Commerce Commission,

Respondents.

NATIONAL CLASSIFICATION COMMITTEE and National Motor Freight

Traffic Association, Inc., Petitioners,

v.

UNITED STATES of America and Interstate Commerce Commission,

Respondents.

Nos. 84-1195, 84-1329.

United States Court of Appeals, District of Columbia Circuit

June 14, 1985

Argued March 18, 1985.

As Amended June 25, 1985.

John R. Bagileo, Washington, D.C., with whom William W. Pugh, Bryce Rea, Jr. and Leo C. Franey, Washington, D.C., were on the brief, for petitioners.

Craig Keats, Atty., I.C.C., Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Robert S. Burk, Acting General Counsel, Lawrence H. Richmond, Deputy Associate General Counsel, Evelyn G. Kitay, Atty., I.C.C., Robert B. Nicholson and Robert J. Wiggers, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents.

Before WALD, EDWARDS and DAVIS [*], Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Separate Statement filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioners, the National Classification Committee ("NCC") and the National Motor Freight Traffic Association, Inc. ("NMFTA"), seek review of two Interstate Commerce Commission ("ICC" or "Commission") decisions ordering petitioners to cancel tariffs reclassifying certain commodities. These cancellations were predicated upon a prior Commission decision cancelling two other reclassification tariffs of petitioners because their reclassification procedures violated the Motor Carrier Act of 1980 ("the MCA"). Petitioners appealed that decision to this court, claiming that their procedures conformed with the relevant provisions of the MCA and that the Commission had exceeded its statutory authority in cancelling the tariffs. This court

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rejected petitioners' challenge and affirmed the Commission's decision. We find that our affirmance of the Commission's initial decision collaterally estops petitioners from relitigating the validity of the Commission's determination that the reclassification procedures at issue violate the MCA.

I. BACKGROUND

The Reed-Bulwinkle Act of 1948, ch. 491, Sec. 1, 62 Stat. 472 (current version at 49 U.S.C. Sec. 10706(b)), granted motor carriers, subject to the Commission's jurisdiction, antitrust immunity to form rate bureaus and submit collectively determined rates and classifications to the Commission. Such rate bureaus must, however, obtain prior Commission approval of rate bureau agreements setting forth the procedures by which the bureau will determine the collective tariffs. In 1956, the Commission approved an agreement submitted by NMFTA providing procedures for the collective determination of motor freight classifications by the NCC--a committee of one hundred representatives of the motor carriers party to the NMFTA agreement. 1 See National Classification Comm. Agreement, 299 I.C.C. 519 (1956). In 1980, however, Congress enacted the MCA, Pub.L. No. 96-296, 94 Stat. 793, in an effort both to reform the rate bureau process and to limit the Commission's discretion to approve or disapprove rate bureau agreements. See H.R.Rep. No. 1069, 96th Cong., 2d Sess. 27-30 (1980), U.S.Code Cong. & Admin.News 1980, 2283. Section 14 of the MCA, 49 U.S.C. Sec. 10706(b)(2), (3), established specific guidelines to which rate bureau agreements must conform. The enactment of the MCA necessitated the submission of new rate bureau agreements if the provisions of a rate bureau's existing agreement did not comply with the requirements of section 14. Petitioners filed their amended agreement with the Commission on May 26, 1981. See National Classification Committee Agreement, as amended May 26, 1981, Joint Appendix ("J.A.") at 153. At the time of this appeal, the Commission had not acted to approve or disapprove the procedures authorized by petitioner's amended agreement. The Commission has, however, disapproved certain procedures apparently authorized by petitioners' agreement in specific proceedings ordering the cancellation of tariff items published pursuant to those procedures.

The provisions of section 14 of the MCA were intended in part to reform the rate bureau process by specifically limiting the functions to be performed by rate bureau employees, thereby assuring that the member carriers, rather than the employees, would play the decisive role in determining collective rates or classifications. 2 Under the petitioners' 1956 agreement, the National Classification Board ("NCB"), an employee committee comprised of classification experts, formally docketed classification proposals and determined initial dispositions on all docketed proposals. Those dispositions became final absent an appeal to the NCC. These procedures were amended by petitioners in their new agreement submitted to comply with the conditions of section 14. Petitioners' amended

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agreement delegates to the National Classification Review Subcommittee ("NCRC"), a subcommittee of the NCC consisting of 27 carrier members, the carrier's responsibility for voting on whether to docket a proposal and subsequently on whether to approve, disapprove, or modify a docketed proposal. The NCB is still permitted to initiate reclassification proposals, to recommend that a proposal be docketed, and to analyze and make recommendations on the final disposition of proposals. If the NCRC votes to docket a proposal initiated by the NCB, then the NCC is designated as the proponent of the proposal.

In Reclassification of Pork Skins and Bacon Rinds, NMFC, August 1982, No. M-30360 (1983) ("Pork Skins "), reprinted in Brief for Respondents, Addendum B, the Commission cancelled NCC tariff items reclassifying pork skins and bacon rinds because it found that the amended classification procedures used still violated the statutory provisions of the MCA. Specifically, the Commission concluded that the employee initiation of proposals by the NCB, which are then docketed by a vote of the NCRC, violates the employee docketing ban in 49 U.S.C. Sec. 10706(b)(3)(B)(iv) and that the listing of the NCC as the proponent of such proposals violates the requirement for disclosure of a classification proponent's identity in 49 U.S.C. Sec. 10706(b)(3)(B)(v). The pertinent statutory provisions provide:

(B) Any organization established or continued under an agreement approved under this subsection must comply with the following requirements:

....

(iv) the organization may not permit one of its employees or any employee committee to docket or act upon any proposal affecting a change in any tariff item published by or for the account of any of its member carriers;

(v) upon request, the organization must divulge to any person the name of the proponent of a rule or rate docketed with it, ... and must divulge to any person the vote cast by any member carrier on any proposal before the organization.

49 U.S.C. Sec. 10706(b)(3)(B)(iv), (v). The Commission determined that these provisions of the MCA were intended to require "that carriers or shippers, not rate bureau employees, initiate classification proposals" and that the specific carrier or shipper initiating the proposal must be identified as the proponent of the proposal. Pork Skins at 5. The Commission reasoned as follows:

In reforming motor carrier rate bureau procedures, Congress intended to lift the veil of secrecy that has obscured ratemaking for over 30 years. It sought, among other things, to place the open responsibility for rate and classification changes on individual carriers. The actions of the NCC as the nominal initiator of a majority of classification changes obstruct this goal. By proposing classification changes as a group, NCC members take only collective responsibility for the changes and thereby avoid the competitive consequences of individual carrier responsibility. This is directly contrary to congressional intent. Thus, even though the NCC is composed of member carriers, it may not docket proposals in its own name. Only the actual proponent carrier may properly request consideration of a change in the tariff.

Since the docketing of the pork skins reclassification by the NCC was inconsistent with the employee docketing ban in 49 U.S.C. 10706(b)(3)(B)(iv) and with the requirement of 49 U.S.C. 10706(b)(3)(B)(v) for disclosure of a proponent's identity, the tariff filing that incorporates this reclassification is unlawful.

Id. at 5-6.

After concluding in the first part of the opinion that the procedures used to docket the proposal violated the MCA, the Commission then went on in part two of the opinion to find that certain procedures used in the disposition of the proposal so docketed further violated the intent of the MCA by encouraging the rubber stamp approval by the NCC of employee initiated and recommended proposals. See id. at 6-8 ("Disposition of the Docketed Proposal"). First,

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the Commission found that the NCC's approval of the pork skins proposal was based entirely on the recommendation of the NCB with no indication that the member carriers exercised any independent judgment. The Commission concluded that this procedure was inconsistent with the implementing requirements for the MCA set forth by the Commission. Id. at 7 (citing Motor Carrier Rate Bureaus--Implementation of P.L. 96-296, Ex Parte No. 297 (Sub-No. 5), 364 I.C.C. 464 (1980)). 3 Second, the Commission found that the NCB's conducting of a hearing on the proposal was "contrary to the spirit of the statutory prohibition of employee docketing, because ... the rule against employee docketing was designed to assure that...

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