I. C. C. v. Southern Ry. Co., 74-3588

• Decision Date: 03 December 1976
• Docket Number: No. 74-3588,74-3588
• 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

Page 534

543 F.2d 534

INTERSTATE COMMERCE COMMISSION, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY and Central of Georgia Railroad

Company, Defendants-Appellees.

No. 74-3588.

United States Court of Appeals, Fifth Circuit.

Dec. 3, 1976.

Bernard A. Gould, Daniel M. O'Donoghue, Daniel S. Linhardt, I. C. C., 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.

Appeal from the United States District Court for the Middle District of Georgia.

Before COLEMAN, GODBOLD and HILL, Circuit Judges.

COLEMAN, Circuit Judge.

The Interstate Commerce Commission appeals the dismissal of its action seeking a district court order to enjoin Southern Railway Company and Central of Georgia Railroad Company from violating certain orders issued by the Commission pursuant to 49 U.S.C. § 5(2) (1970). The United States was not a party to this enforcement action and the Commission did not obtain the consent or approval of the Attorney General to initiate it. We are primarily concerned with whether the ICC, acting under either § 5(8) or § 16(12) of the Interstate Commerce Act, 49 U.S.C.A. §§ 5(8), 16(12), may, without the aid or consent of the Attorney General of the United States, bring suit to enforce its orders in the federal district courts. The facts are not in dispute and need not be discussed.

The District Court held that the Commission may not, on its own, bring suit in a federal district court without the aid or consent of the Attorney General. We affirm the District Court.

I. The Attorney General's Power Over Government Litigation

Congress has determined that the Attorney General shall have plenary power and supervision over all government litigation, including litigation involving the regulatory agencies. 28 U.S.C. provides:

§ 516. Conduct of litigation reserved to Department of Justice

Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.

§ 519. Supervision of litigation

Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.

This merely restates the traditional responsibility of the Attorney General over the conduct of all litigation on behalf of the United States and its agencies. See Confiscation Cases, 7 Wall. (74 U.S.) 454, 458, 19 L.Ed. 196 (1868). The principle not only centralizes responsibility for the conduct of public litigation but enables the President, through the Attorney General, to supervise the various policies of the executive branch. The alternative would allow a proliferation of policies among and within the various agencies.

The plenary power of the Attorney General over all government litigation has been supplemented by a grant of specific power over actions to enforce orders of the ICC. Chapter 157 of 28 U.S.C. provides in pertinent part:

§ 2321. Procedure generally; process

The procedure in the district courts in actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures, shall be as provided in this chapter.

§ 2322. United States as a party

All actions specified in section 2321 of this title shall be brought by or against the United States. June 25, 1948, c. 646, 62 Stat. 969.

§ 2323. Duties of Attorney General; intervenors

The Attorney General shall represent the Government in the actions specified in section 2321 of this title and in actions under sections 20, 23, and 43 of Title 49, in the district courts, and in the Supreme Court of the United States upon appeal from the district courts.

The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of such party.

The Attorney General shall not dispose of or discontinue said action or proceeding over the objection of such party or intervenor, who may prosecute, defend, or continue said action or proceeding unaffected by the action or nonaction of the Attorney General therein. June 25, 1948, c. 646, 62 Stat. 970; May 24, 1949, c. 139, § 116, 63 Stat. 105.

In the words of the statute, the present action is one to " enforce . . . any order of the Interstate Commerce Commission other than for the payment of money". All such actions "shall be brought by . . . the United States". The Attorney General "shall represent" the government in such actions. The ICC "may appear" as an intervenor and thereafter may continue to prosecute actions brought by the Attorney General. Since "the court must give effect to the plain and obvious meaning of the statute without reading in or reading out", General Electric Co. v. Southern Construction Co., 5 Cir. 1967,383 F.2d 135, 138, cert. den., 390 U.S. 955, 88 S.Ct. 1049, 19 L.Ed.2d 1148 (1968), this is an action which can only be brought by the United States represented by the Attorney General. The history of these sections in no way detracts from this power of the Attorney General.

Prior to the enactment of the original version of 28 U.S.C. §§ 2321-2323 in 1910, the Interstate Commerce Act authorized the ICC to apply "in its own name" to the appropriate court for enforcement of its orders. Act of June 29, 1906, ch. 3591, § 5, 34 Stat. 591. ¹ In order to bring the Attorney General's control over ICC matters into line with his control over other governmental litigation, Congress, in 1910, enacted the Commerce Court Act. ² Act of June 18, 1910, ch. 309, 36 Stat. 539. This Act put into effect the procedural provisions now contained in Chapter 157 and vested initial control and responsibility over ICC orders in the Attorney General.

The new legislation created a Commerce Court with exclusive jurisdiction over "all cases for the enforcement . . . of any order of the Interstate Commerce Commission other than for the payment of money". Act of June 18, 1910, ch. 309, 36 Stat. 539. It further provided that "all cases and proceedings in the commerce court which but for this Act would be brought by or against the Interstate Commerce Commission shall be brought by or against the United States" and that in such cases the Attorney General would "have charge and control of the interests of the Government."

In order to harmonize the provisions relating to enforcement of ICC orders with the changed procedures of the Commerce Court, the Interstate Commerce Act was amended to delete the authority for the Commission to apply "in its own name" for enforcement of its orders. This removed any doubt that henceforth the ICC was without authority to initiate enforcement proceedings in its own name.

In 1911, the provisions governing the initiation of ICC enforcement suits in the Commerce Court were included in substantially identical form in the first codification of the Judicial Code. Act of March 3, 1911, ch. 231, §§ 207, 211 & 212, 36 Stat. 1148-49, 1150-51. When the Commerce Court was abolished by the Urgent Deficiencies Act of 1913, ³ Congress transferred jurisdiction theretofore vested in that court to the district courts and imposed the same procedures with respect to suits to enforce ICC orders. See ICC v. Oregon-Washington R. R. & Navigation Co., 288 U.S. 14, 23, 53 S.Ct. 266, 77 L.Ed. 588 (1933). These procedural provisions appeared virtually unchanged in the 1934 & 1940 editions of the United States Code. When Title 28 was enacted into positive law in 1948, the statute was renumbered § 2322 and shortened to its present form. Rather than restricting the power of the Attorney General, the Congress has continually reasserted its intention to give the Attorney General, on behalf of the United States, exclusive control over the initiation of actions to enforce ICC orders.

II. Sec. 5(8) and Sec. 16(12) as Implied Exceptions to the Attorney General's Power

A. Plain Meaning

It will be noted, however, that Congress has expressly provided for one exception to the Attorney General's plenary power over government litigation "except as otherwise authorized by law" such that when an agency is given specific authorization to proceed without the assistance or supervision of the Attorney General it may do so. 28 U.S.C. §§ 516,519. The ICC contends, in effect, that Congress, albeit not expressly, intended to carve out an exception to the procedural limitations on government enforcement suits by enacting § 5(8) ⁴ to allow the ICC the right to institute suits in its own name to enforce § 5 orders. Specifically, the Commission argues that it is only by direct complaint of the Commission that the district court acquires jurisdiction to act on an allegation of a § 5 violation and that absent the complaint of the Commission the court does not have the jurisdiction to entertain a complaint by any party alleging a violation of either § 5 or an order issued by the Commission pursuant to § 5.

To support this position, the Commission points to several cases which it asserts gives the statute the same construction. See Railroad Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 522, 67 S.Ct. 1387,...