Alabama Power Company v. United States
Decision Date | 08 December 1970 |
Docket Number | Civ. A. No. 2970-68. |
Parties | ALABAMA POWER COMPANY et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. |
Court | U.S. District Court — District of Columbia |
Charles J. McCarthy, J. Raymond Clark, and William M. Maddox, Washington, D. C., for plaintiffs.
William A. Imhof, Washington, D.C., for the Secretary of Agriculture as intervening plaintiff.
Arthur J. Cerra, Washington, D.C., for defendant, Interstate Commerce Commission.
Richard J. Murphy, Gen. Atty., Philadelphia, Pa., for railroads as intervening defendants.
Before WRIGHT and TAMM, Circuit Judges, and CORCORAN, District Judge.
Judgment Affirmed December 8, 1970. See 91 S.Ct. 259.
This action was instituted by several groups of shippers to enjoin, annul and set aside certain rate increase orders of the Interstate Commerce Commission entered November 26, 1968 and January 9, 1969 in Ex Parte No. 259, Increased Freight Rates, 1968.1 These orders permitted Class I railroads of the United States to effect a general increase in their freight rates and charges to offset the increase in expenses which had occurred in the 1967-1968 period.
The Secretary of Agriculture intervened as a party plaintiff and several Class I railroads intervened as party defendants.
The plaintiffs further contend that the Commission ignored the differences in the financial needs of the railroads in the three railroad districts and failed to require the railroads to present evidence of the unit cost of performing transportation services.
The intervening Secretary of Agriculture argued that the Commission did not hold the railroads to the recently announced new standard of proof which it had expressed in Ex Parte No. 256, Increased Freight Rates, 1967,3 and further that the Commission did not consider the effect of the rate increases upon the movement of traffic.
The defendant railroads submitted that the orders of the Commission, being permissive general increase orders, were non-reviewable, relying on Algoma Coal and Coke Co. v. United States.4 They further submitted that even if the orders were held to be reviewable, the I.C. C. had observed the required statutory standards and the orders of the Commission had contained adequate findings supported by substantial evidence.
The I.C.C. did not join in the jurisdictional objection proffered by the railroads but chose to defend its action on the merits, contending that it had made the requisite findings which were supported by substantial evidence.
The Court concludes that it lacks jurisdiction to review the questioned Commission orders, and that it is unnecessary, therefore, to reach the issues raised by the plaintiff shippers and the intervening Secretary of Agriculture.
It is to be noted that the rates which have become effective under the I.C.C. orders are permissive and not mandatory, and that the Commission in its Ultimate Conclusions and Findings in Ex Parte 259 declared in No. 15:
332 I. C.C. 792.
The foregoing declaration assures any aggrieved party, such as the plaintiffs herein, the opportunity to challenge any particular rates which affect them under the procedures provided in Section 13 of the I.C.C. Act, 49 U.S.C.A. § 13.
Under such circumstances it is the Court's opinion that this case should be governed by Algoma.5 In that case District Judge Chesnut, writing for a three-judge court,6 noted:
The factual and legal questions considered in Algoma are identical with those raised in the present proceeding; and, in the opinion of the Court, Algoma represents the applicable law.7
Accordingly, the complaint is dismissed.
It is improper, in my judgment, to dismiss this suit at this time. Instead, I think we ought to examine the order now and decide whether the Commission's action was supported by substantial evidence. I am in complete agreement with the proposition that any plaintiff who wants to challenge any rate now being charged must first pursue his administrative remedies under Sections 13 and 15 of the Act. However, the plaintiffs here are not seeking to challenge the appropriateness of any rate or combination of rates. Instead, they wish to challenge the propriety of a Commission order which allowed the rates generally to be raised by the carriers. That order was predicated on a factual determination by the Commission that the nation's railroads need more freight revenue. That order, like any action of the Commission, must be based on substantial evidence. Cf. United States v. Louisiana, 290 U. S. 70, 77, 54 S.Ct. 28, 78 L.Ed. 181 (1933). Such an order is, of course, judicially reviewable, 28 U.S.C. §§ 1336, 2325 (1964), and I feel it is ripe for review now.
There can be no doubt that there are plaintiffs who are aggrieved now by this order. The effect of the order was to remove the upper limits on rates which the Commission had prescribed for certain commodities. Without this order, the railroads could not have increased any of the Commission-made rates. Shippers, therefore, are paying higher rates now as a direct result of this Commission determination. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
Considering challenges to the general order now would avoid needless relitigation of the same issue before the Commission in countless...
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