Brown Transport Corp v. Atcon, Inc, No. 77-1581

CourtUnited States Supreme Court
Writing for the CourtWHITE; BURGER.; John Jay; BRENNAN.
Citation439 U.S. 1014,58 L.Ed.2d 687,99 S.Ct. 626
Decision Date04 December 1978
Docket NumberNo. 77-1581
PartiesBROWN TRANSPORT CORP. v. ATCON, INC

439 U.S. 1014
99 S.Ct. 626
58 L.Ed.2d 687
BROWN TRANSPORT CORP.

v.

ATCON, INC

No. 77-1581

Supreme Court of the United States

December 4, 1978

On petition for writ of certiorari to the Court of Appeals of Georgia.

The petition for a writ of certiorari is denied.

Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, dissenting.

Respectfully, I dissent from the denial of certiorari.

I

Section 223 of the Motor Carrier Act, 49 Stat. 565, 49 U.S.C. § 323, prohibits a common carrier by motor vehicle from delivering freight transported in interstate commerce until all tariff rates and charges have been paid, except as permitted by rules and regulations of the Interstate Commerce Commission. The Interstate Commerce Commission, pursuant to 49 U.S.C. § 323, has adopted regulations that allow delivery without prior collection of freight charges but limit the credit that may be extended: Freight bills must be presented to the shipper and collected within seven days. 49 CFR § 1322 (1977). A "shipper" is defined as the person who undertakes to pay the tariff charges. Ibid. The regulations are silent about what happens if the carrier fails to comply with the time limits established by them. The question raised by this case is whether failure by the carrier to comply with

Page 1015

the time limits prescribed by 49 CFR § 1322 (1977) estops the carrier from collecting the freight charges from the shipper.

The Georgia Court of Appeals in this case held that it did, thereby joining the Seventh Circuit, which had reached a similar result in Consolidated Freightways Corp. of Delaware v. Admiral Corp., 442 F.2d 56 (1971).

Judge Swygert dissented in the Consolidated Freightways Corp. case, reasoning that "[n]othing in the Motor Carrier Act provides that a carrier's failure to comply with section 323 or the Interstate Commerce Commission's credit regulation should result in the carrier's forfeiting its right to collect freight charges." Id., at 65. At least two jurisdictions share this view. AAA Trucking Corp. v. Spherex, Inc., 110 N.H. 472, 272 A.2d 594 (1970); East Texas Motor Freight Lines v. Franklin County Distilling Co., 184 S.W.2d 505 (Tex.Civ.App.1944).

This conflict among jurisdictions over an issue which "imperatively demand[s] a single uniform rule," Cooley v. Board of Wardens, 12 How. 299, 319 (1852), commands the Court's immediate attention. There is further justification for review in Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U.S. 577, 13 L.Ed. 996 (1919). There the Court held that a shipper remains liable for the full legal tariff even though the carrier mistakenly billed him for less, rejecting an argument that estoppel prevented collection on the ground that "[e]stoppel could not become the means of successfully avoiding the requirement of the act as to equal rates, in violation of the provisions of the statute." Id., at 583. The Fink case, although concerning Interstate Commerce Act provisions regulating railroads and not motor carriers, is directly analogous to this case, suggesting that the decision below may be at variance with our prior case law.

Because of the substantiality of the federal issue raised, I would grant certiorari and set this case for argument.

Page 1016

II

Although I dissent from denial of certiorari, it must be acknowledged that this case is no more deserving of plenary consideration than many other cases in which certiorari has been denied so far this Term.

A.

During the week of September 25, the Court met in Conference to deal with the petitions for certiorari, jurisdictional statements in appeals, petitions for rehearing, and miscellaneous motions that had accumulated and had been studied during the summer.* There was a total of 992 items on the Conference List, of which 865 were petitions for writs of certiorari and 59 were appeals. As the Order Lists for this Term prior to today indicate, of these the Court has so far granted 24 petitions for certiorari, 23 paid and 1 unpaid, and has set for plenary consideration 6 appeals. In addition, summary action on the merits was taken on 15 petitions for certiorari, 8 paid and 7 unpaid, and on 30 statements of jurisdiction. Seven hundred and ninety-four petitions for certiorari were denied, 365 paid and 429 unpaid. Twenty-one appeals were dismissed and denied. There were thus 396 paid petitions for certiorari acted on and 437 unpaid, for a total of 833. Fifty-seven of the 59 appeals were also disposed of. For one reason or other, the remaining 32 petitions and 2 appeals have been held over for later action.

The 23 paid petitions granted amount to 5.81% of the 396 paid petitions acted upon. Summary action was taken on an additional 2.02%, making a total of 7.83% of the paid peti-

Page 1017

tions that were either granted or disposed of on the merits. The single unpaid petition granted amounted to 0.23% of the unpaid petitions acted on. Summary action was taken on an additional 1.60% of unpaid petitions, making a total of 1.83% of the unpaid petitions which were granted or on which summary action was taken.

B

Our Rule 19 provides that one of the principal factors in determining whether certiorari should be granted is whether the decision below conflicts with another decision: Is the federal law, statutory or constitutional, being interpreted and enforced differently in different sections of the country? This has been an important criterion for the exercise of the Court's powers since most of the Court's jurisdiction was made discretionary in 1925.

When one examines the petitions for certiorari on the September 25 Conference List that have so far been denied, it is not difficult to find a good many cases in which the Court refused to review lower court decisions that conflicted with decisions of other federal or state appellate courts. The following are examples of such cases.

Mansfield v. Estelle, No. 77-6709, order reported below (opinion unpublished), 568 F.2d 1366 (CA5 1978): "farce or mockery" standard for judging the effectiveness of retained counsel; a more stringent standard for appointed counsel. Cf. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973) (diligent, conscientious, and reasonably competent assistance); Moore v. United States, 432 F.2d 730, 736 (CA3 1970) ("the exercise of the customary skill and knowledge which normally prevails at the time and place"); United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (CA7 1975) ("assistance which meets a minimum standard of professional representation"); United States v. Easter, 539 F.2d 663, 666 (CA8 1976) ("reasonably competent" assistance). Also cf. United States v. McCord, 166 U.S.App.

Page 1018

D.C. 1, 509 F.2d 334 (1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975); Goodwin v. Cardwell, 432 F.2d 521 (CA6 1970); United States ex rel. Williams v. Twomey, supra, 510 F.2d, at 640; Blanchard v. Brewer, 429 F.2d 89 (CA8 1970), cert. denied, 401 U.S. 1002, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971); Ellis v. Oklahoma, 430 F.2d 1352 (CA10 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546 (1971), all rejecting the distinction between paid and appointed counsel.

United States v. Kelley, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124, opinion below, 568 F.2d 259 (CA2 1978): timely administrative claim is not a jurisdictional prerequisite to recovery in suits in which the United States is substituted as defendant pursuant to the Federal Drivers' Act, 28 U.S.C. §§ 2679(b)-(e). Contra, Meeker v. United States, 435 F.2d 1219 (CA8 1970).

Pennsylvania v. United States Tobacco Co., 439 U.S. 880, 99 S.Ct. 217, 58 L.Ed.2d 193, opinion below, 478 Pa. 125, 386 A.2d 471 (1978): broad interpretation of "solicitation" in 15 U.S.C. § 381(a), which prohibits a State from taxing the income of persons whose only contact with the State is solicitation of orders. Contra, Clairol, Inc. v. Kingsley, 109 N.J.Super. 22, 262 A.2d 213, aff'd, 57 N.J. 199, 270 A.2d 702 (1970), dismissed for want of a substantial federal question, 402 U.S. 902, 91 S.Ct. 1377, 28 L.Ed.2d 643 (1971).

Lacey v. United States, 439 U.S. 832, 99 S.Ct. 109, 58 L.Ed.2d 126, order reported below (opinion unpublished), 578 F.2d 1371 (CA2 1978): not impermissibly coercive per se to give a second Allen (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)) charge to a jury that has twice reported inability to reach a verdict and has not requested repetition of the charge. Accord, United States v. Robinson, 560 F.2d 507 (CA2 1977) (en banc). Contra, United States v. Seawell, 550 F.2d 1159 (CA9 1977).

Guiffre v. United States, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128, opinion below 576 F.2d 126 (CA7 1978): coverage of federal bank robbery statute, 18 U.S.C. § 2113(b), is not limited to conduct that would fall within the common-law definition of larceny. Accord, United States v. Fistell, 460 F.2d 157 (CA2 1972); Thaggard v. United States, 354 F.2d 735 (CA5 1965), cert. denied, 383

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U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). Contra, LeMasters v. United States, 378 F.2d 262 (CA9 1967); United States v. Rogers, 289 F.2d 433 (CA4 1961) (dictum).

Holcomb v. United States, 439 U.S. 850, 99 S.Ct. 154, 58 L.Ed.2d 153, order reported below, 578 F.2d 1381 (CA6 1978): a person accused of violating 18 U.S.C. § 922(a)(6) by falsely denying that he has ever been convicted of a crime is not entitled to litigate the constitutionality of that conviction. Accord, United States v. Edwards, 568 F.2d 68 (CA8 1977); United States v. Allen, 556 F.2d 720 (CA4 1977); United States v. Graves, 554 F.2d 65 (CA3 1977) (en banc); United States v. Ransom, 545 F.2d 481 (CA5), cert. denied, 434 U.S. 908, 98 S.Ct. 310, 54 L.Ed.2d 196 (1977). Contra, United States v. Pricepaul, 540 F.2d 417 (CA9 1976).

Burke v. New Jersey Education Assn., 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239, opinion below, 579 F.2d 764 (CA3 1978):...

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9 practice notes
  • Allapattah Services, Inc. v. Exxon Corp., No. 01-15575.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 de março de 2004
    ...504 U.S. 991, 991, 112 S.Ct. 2982, 2982, 119 L.Ed.2d 599 (1992) (White, J., dissenting); see also Brown Transp. Corp. v. Atcon, Inc., 439 U.S. 1014, 1017, 99 S.Ct. 626, 628, 58 L.Ed.2d 687 (1978) (White, J., dissenting from denial of certiorari) ("Is the federal law, statutory or constituti......
  • Watt v. Alaska Kenai Peninsula Borough v. Alaska, Nos. 79-1890
    • United States
    • United States Supreme Court
    • 21 de abril de 1981
    ...frequently, such criticism takes the form of a dissent from the denial of certiorari. See, e.g., Brown Transport Corp. v. Atcon, Inc., 439 U.S. 1014, 99 S.Ct. 626, 58 L.Ed.2d 687 (WHITE, J., dissenting). Although I consider the practice of dissenting from denials of certiorari counterproduc......
  • Dozier v. Ford Motor Co., No. 82-1270
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 18 de março de 1983
    ...to maintain uniformity in the law among the circuits, wherever reasoned analysis will allow"); cf. Brown Transp. Corp. v. Atcon, Inc., 439 U.S. 1014, 1017-21, 99 S.Ct. 626, 628-30, 58 L.Ed.2d 687 (1978) (White, J., dissenting from denial of certiorari) (listing recent cases in which the Sup......
  • Southern Pacific Transportation Co v. Commercial Metals Co, No. 81-622
    • United States
    • United States Supreme Court
    • 27 de abril de 1982
    ...Transportation Corp. v. Atcon, Inc., 144 Ga.App. 301, 241 S.E.2d 15 (1977), cert. denied sub nom. Brown Transport Corp. v. Atcon, Inc., 439 U.S. 1014, 99 S.Ct. 626, 58 L.Ed.2d 687 (1978) (with two Justices dissenting). The contrary result has been reached in other cases. See, e.g., Consolid......
  • Request a trial to view additional results
9 cases
  • Allapattah Services, Inc. v. Exxon Corp., No. 01-15575.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 de março de 2004
    ...504 U.S. 991, 991, 112 S.Ct. 2982, 2982, 119 L.Ed.2d 599 (1992) (White, J., dissenting); see also Brown Transp. Corp. v. Atcon, Inc., 439 U.S. 1014, 1017, 99 S.Ct. 626, 628, 58 L.Ed.2d 687 (1978) (White, J., dissenting from denial of certiorari) ("Is the federal law, statutory or constituti......
  • Watt v. Alaska Kenai Peninsula Borough v. Alaska, Nos. 79-1890
    • United States
    • United States Supreme Court
    • 21 de abril de 1981
    ...frequently, such criticism takes the form of a dissent from the denial of certiorari. See, e.g., Brown Transport Corp. v. Atcon, Inc., 439 U.S. 1014, 99 S.Ct. 626, 58 L.Ed.2d 687 (WHITE, J., dissenting). Although I consider the practice of dissenting from denials of certiorari counterproduc......
  • Dozier v. Ford Motor Co., No. 82-1270
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 18 de março de 1983
    ...to maintain uniformity in the law among the circuits, wherever reasoned analysis will allow"); cf. Brown Transp. Corp. v. Atcon, Inc., 439 U.S. 1014, 1017-21, 99 S.Ct. 626, 628-30, 58 L.Ed.2d 687 (1978) (White, J., dissenting from denial of certiorari) (listing recent cases in which the Sup......
  • Southern Pacific Transportation Co v. Commercial Metals Co, No. 81-622
    • United States
    • United States Supreme Court
    • 27 de abril de 1982
    ...Transportation Corp. v. Atcon, Inc., 144 Ga.App. 301, 241 S.E.2d 15 (1977), cert. denied sub nom. Brown Transport Corp. v. Atcon, Inc., 439 U.S. 1014, 99 S.Ct. 626, 58 L.Ed.2d 687 (1978) (with two Justices dissenting). The contrary result has been reached in other cases. See, e.g., Consolid......
  • Request a trial to view additional results

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