I. C. C. v. Southern Ry. Co.
| Decision Date | 25 April 1977 |
| Docket Number | No. 74-3588,74-3588 |
| Citation | 551 F.2d 95 |
| Parties | INTERSTATE COMMERCE COMMISSION, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY and Central of Georgia Railroad Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bernard A. Gould, I. C. C., Daniel M. O'Donoghue, Daniel S. Linhardt, Washington, D. C., for plaintiff-appellant.
Ellsworth Hall, Jr., Macon, Ga., Estel Edward Bruce, Stuart C. Stock, Washington, D. C., James L. Tapley, So. Railway Co., Wm. H. Teasley, Washington, D. C., for defendants-appellees.
Leonard Schaitman, Neil H. Koslowe, Appellate Sec., Civ. Div., Dept. of Justice, Washington, D. C., for amicus curiae.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion December 3, 1976, 5 Cir., 1976, 543 F.2d 534).
Before BROWN, Chief Judge, and THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.
The petition for Rehearing is DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also DENIED.
I dissent from the denial of rehearing en banc. The panel decision has tied the hands of the agency created by the legislative branch by holding that in actions to enforce orders of the Interstate Commerce Commission the Commission does not have the right to sue in its own name. The holding is that the Attorney General must bring the suit and the Commission is reduced to the status of intervenor. Because I think this defeats the plain meaning of § 16(12) of the Interstate Commerce Act I would vote for rehearing.
Section 16(12) reads in relevant part:
If any carrier fails to neglects or obey any order of the commission other than for the payment of money, while the same is in effect, the Interstate Commerce Commission or any party injured thereby, or the United States, by its Attorney General, may apply to any district court of the United States of competent jurisdiction for the enforcement of such order.
By use of the disjunctive or in the statute Congress has explicitly given to any one of three plaintiffs the right to bring actions to enforce orders of the I.C.C. United States v. City of Jackson, 5 Cir., 1963, 318 F.2d 1; Pacific Fruit Express v. Akron, C. & Y. R. Co., 355 F.Supp. 700 (N.D.Cal., 1973), aff'd, 9 Cir., 1975, 524 F.2d 1025; United States v. Lassiter, 203 F.Supp. 20 (W.D.La., 1962), aff'd, 371 U.S. 10, 83 S.Ct. 21, 9 L.Ed.2d 47 (1962).
Pacific Fruit, supra, was an action to enforce an I.C.C. order brought by a private party and joined in by the I.C.C. The argument made by the panel that Congress wanted to insure the centralization of litigation and therefore intended that only the Attorney General bring suit, fails when a private party is allowed to sue and the Commission intervenes. As in Pacific, had the shippers here instituted suit and the Commission intervened, the question of its right to initiate would never have arisen.
While it is true that Congress gave the Attorney General power over all government litigation, including regulatory agencies, 1 this was a general grant of power and responsibility, subject to further limitations by enactment of subsequent limitating statutes. By the general rules of statutory construction a statute more narrowly drawn would limit this general statute and a subsequent contradictory statute would also. This is just what § 16(12) does. But I would not put my approach on principles of statutory construction. I base it on the substantive certainty that Congress vested responsibility in the I.C.C. to enforce the Transportation Act and the regulation essential to its day to day enforcement and to effectuate this, express power was granted the I.C.C. to initiate in its own right enforcement proceedings.
If the panel opinion stands, the result is that when the I.C.C. is a defendant in a suit it does not have to depend on the Attorney General's office to initiate its case and may proceed by itself even though the Attorney General may and frequently does align itself formally with the I.C.C. But when its orders have been violated and it would be the plaintiff, it is dependent on the executive branch to prosecute....
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