Cheney R. Co., Inc. v. I.C.C.

• Citation: 284 U.S.App. D.C. 101,902 F.2d 66
• Decision Date: 23 June 1990
• Docket Number: No. 89-1219,89-1219
• Parties: CHENEY RAILROAD COMPANY, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and The United States of America, Respondents, Tyson Foods, Inc., CSX Transportation, Inc., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 66

902 F.2d 66

284 U.S.App.D.C. 101

CHENEY RAILROAD COMPANY, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and The United States of America, Respondents Tyson Foods, Inc., CSX Transportation, Inc., Intervenors.

No. 89-1219.

United States Court of Appeals District of Columbia Circuit.

Argued March 9, 1990.

Decided April 27, 1990.

Opinion on Denial of Rehearing June 23, 1990.

Rehearing En Banc Denied June 23, 1990.

William P. Jackson, Jr., with whom David C. Reeves, Arlington, Va., was on the brief, for petitioner.

Evelyn G. Kitay, Attorney, for the I.C.C., with whom Robert S. Burk, Gen. Counsel and Ellen D. Hanson, Associate Gen. Counsel for the I.C.C., Washington, D.C., James F. Rill, Asst. Atty. Gen., Catherine G. O'Sullivan and Marion Jetton, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents. John P. Fonte, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondents.

John A. Menke, with whom Fritz R. Kahn, Washington, D.C., was on the brief, for intervenor Tyson Foods, Inc.

Charles M. Rosenberger, Lawrence H. Richmond, Washington, D.C. and Peter J. Schudtz were on the brief, for intervenor CSX Transp., Inc.

Before BUCKLEY, WILLIAMS, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

The Interstate Commerce Commission has forced CSX Transportation, Inc. to sell its rail trackage between Greens and Ivalee, Alabama, which it had intended to abandon. The Commission's order allowed the line to be split, at CSX's option but against the wishes of petitioner Cheney Railroad Company, between the petitioner and another applicant. Cheney challenges primarily the Commission's authority to review simultaneously, and ultimately to approve, competing purchase applications other than the one filed first (in this case, its own). We uphold the Commission's action in all respects.

* * *

Cheney Lime & Cement Company operates a plant near Graystone, Alabama, which has been served for more than 80 years by the 54.61-mile rail line running southwest to northeast between Ivalee (near Gadsden) and Greens (near Birmingham), at both of which points it connects with the rest of the CSX network. See Figure A. In 1983 CSX's predecessor issued public notice of its intention to abandon the line. See 49 U.S.C. Sec. 10904(e)(2)(B) (1989). A limestone products factory without access to rail transportation is apparently not good for much, and so Cheney Lime owner Alan B. Cheney formed Cheney Railroad Co. (here referred to simply as Cheney) as a vehicle to acquire the track from CSX. In the wake of unfruitful negotiations, Cheney on March 19, 1987 filed a purchase application for the entire route under 49 U.S.C. Sec. 10910 (1988), which requires the forced sale of track designated for abandonment where "a financially responsible person" offers to buy.

Enter Tyson Foods (billed to us as the world's largest producer of poultry), which had purchased land adjacent to the northern end of the line as a site for a new feed mill. On April 20, 1987, Tyson filed its own Sec. 10910 application pursuant to 49 CFR Sec. 1151.2(d) (1989) (allowing for filing of competing applications within 30 days of initial application), ¹ but sought only the 1.61-mile segment adjoining the Ivalee connection. To Cheney's eye, Tyson's filing was a set-up arranged by CSX and aimed at precluding competition for "overhead" traffic, i.e., traffic neither starting nor ending along the route. Cheney argued that under Sec. 10910 the Commission could assess applications only in the order received, and must accept the first qualifying application filed. The Commission rejected Cheney's motion, see Cheney Railroad Co.--Feeder Line Acquisition--CSX Transportation, Inc. Line Between Greens and Ivalee, AL, Finance Docket No. 31012 (May 28, 1987) (unpublished), and subsequently found both applicants "financially responsible." Cheney Railroad Co.--Feeder Line Acquisition--CSX Transportation, Inc. Line Between Greens and Ivalee, AL, 5 I.C.C.2d 250 (1989). CSX was allowed the option to take only Cheney's bid, or to divide the line between the two applicants. With the same order, the Commission denied Cheney's fallback plea for permission to construct a bypass track around Tyson's segment and an accompanying interchange with the main CSX line at Ivalee. Cheney appealed.

* * *

Cheney argues that Sec. 10910 does not "authorize" competing applications. Of course nothing in Sec. 10910 prohibits the filing of successive applications by different parties, and if two are filed the Commission must handle them in some way. The only issue is how. Cheney asserts that Congress intended a pure system of first come, first served, and that the Commission acted unlawfully in even considering Tyson's application until it had finally disposed of (indeed, finally rejected) Cheney's. The argument first highlights Sec. 10910's language: when track has been designated for abandonment and "an application to purchase such line has been filed ... by a financially responsible person, the Commission shall require the rail carrier owning the railroad line to sell such line to such financially responsible person." 49 U.S.C. Sec. 10910(b)(1) (emphasis added). If Congress contemplated simultaneous assessment of competing applications, Cheney tells us, it would have used "any" in place of "an", "a", and "such". We are unable to find in the language even the faintest hint that Congress meant to establish some rule for the treatment of competing applications filed at about the same time; the language of Sec. 10910 simply conditions the Commission's power to force a sale on the filing of an application by at least one financially responsible person.

Cheney next makes a structural argument. In the Staggers Act, of which Sec. 10910 is a part, Congress addressed another, parallel situation. In Sec. 10905 it established procedures for forced sale where a railroad has not only designated but has applied for final Commission approval for abandonment; in that context it gave directions as to how the ICC should handle competing applications. See 49 U.S.C. Sec. 10905(c) & (f)(3) (providing that "any person" may request forced sale, and allowing the seller to choose among those found "financially responsible"). Cheney makes a conventional claim that expressio unius est exclusio alterius--"explicit direction for something in one provision, and its absence in a parallel provision, implies an intent to negate it in the second context." Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773, 779 (D.C.Cir.1990).

Scholars have long savaged the expressio canon. Max Radin called it "one of the most fatuously simple of logical fallacies, the 'illicit major,' long the pons asinorum of schoolboys." Statutory Interpretation, 43 Harv.L.Rev. 863, 873-74 (1930) (citation omitted). See also Reed Dickerson, THE INTERPRETATION AND APPLICATION OF STATUTES 234-35 (1975); Richard A. Posner, Statutory Interpretation--in the Classroom and in the Courtroom, 50 U.Chi.L.Rev. 800, 813 (1983); cf. State of Illinois, Dep't of Public Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir.1983) ("Not every silence is pregnant"). The Supreme Court has more charitably dubbed it "a valuable servant, but a dangerous master." Ford v. United States, 273 U.S. 593, 612, 47 S.Ct. 531, 537, 71 L.Ed. 793 (1927) (quoting Colquhoun v. Brooks, 21 Q.B.D. 52, 65). Whatever its general force, we think it an especially feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). See also Clinchfield Coal, 895 F.2d at 779 (expressio unius insufficient to establish unambiguous intent under Chevron ); TRT Telecommunications Corp. v. FCC, 876 F.2d 134, 146 (D.C.Cir.1989) (same). Here the contrast between Congress's mandate in one context with its silence in another suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion. Such a contrast (standing alone) can rarely if ever be the "direct[ ]" congressional answer required by Chevron. See 467 U.S. at 842-43, 104 S.Ct. at 2781-82.

Cheney thus turns to the legislative history. The House proposal, which ultimately emerged as Sec. 10910, had contained a provision giving the ICC some specific directions on how to handle competing applications. See 126 Cong.Rec. H8622-23 (1980) (containing proposed requirement that Sec. 10910 applicant file "notice of intent to acquire" including "a statement that other interested parties may also propose to acquire the line," along with mandate to Commission that it give preference to shipper applicants). This dropped out, without explanation, in the final version. Again the claim is one of contrast--they had one solution in the draft, none in the final. Again the answer is that the purpose of the omission is clear in only one respect: Congress decided not to mandate simultaneous evaluation in Sec. 10910 proceedings. In the absence of affirmative and significant evidence that Congress intended the omission to be read as a mandate of first-come-first-served, we find Congress not to have precluded or required any particular solution to roughly simultaneous applications for Sec. 10910 transfers. See American Trucking Ass'n v. United States, 344 U.S. 298, 309-10 & n. 10, 73 S.Ct. 307, 314 & n. 10, 97 L.Ed. 337 (1953) (declining to read deletion of explicit extension of Commission authority as bar to exercise of such authority). Compare Railroad Consolidation Procedures, 366 I.C.C. 75, 83-84 (1982) (applying simple priority rule where statute imposed time constraints on proceedings and thus made multiple assessments impractical).

Of course, the Commission's choice must still...