ICC v. Atlantic Coast Line R. Co.

• Decision Date: 08 July 1964
• Docket Number: No. 20485.,20485.
• Citation: 334 F.2d 46
• Parties: INTERSTATE COMMERCE COMMISSION, Appellant, v. ATLANTIC COAST LINE R. CO. et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

334 F.2d 46 (1964)

INTERSTATE COMMERCE COMMISSION, Appellant, v. ATLANTIC COAST LINE R. CO. et al., Appellees.

No. 20485.

United States Court of Appeals Fifth Circuit.

July 8, 1964.

Donald C. Lehman, Asst. U. S. Atty., Jacksonville, Fla., Leonard S. Goodman, Atty., I.C.C., Robert W. Ginnane, Gen. Counsel, I.C.C., Washington, D. C., for appellant.

Phil C. Beverly, Jacksonville, Fla., J. Edgar McDonald, New York City, Urchie B. Ellis, Richmond, Va., for appellees.

John F. Donolan, John M. Cleary, Washington, D. C., Harold E. Spencer, Chicago, Ill., amici curiae.

Before TUTTLE, Chief Judge, and POPE^* and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question in this case — arising for the first time in the 75-year operation of the Interstate Commerce Act — is whether a carrier may sue to set aside a reparation award of the Commission under § 16 (1) by a suit under § 17(9), 28 U.S.C.A. §§ 1336, 1398, 2321-2323, or must confine its challenge as a defense in the Shipper's suit when, where and as brought under § 16(2). The District Court upheld the right. The ICC, joined by an array of shipper interests, spiritedly challenges the holding. We think the attack is unavailing and affirm.

The facts are very simple. In response to the complaint of the Shipper,¹ the ICC awarded reparations in the amount of $8,889.76 with interest, for unjust and unreasonable rates collected for phosphate movements from Florida to Illinois during the period April 10, 1945, to December 31, 1950.² The order called for payment on or before August 28, 1961, the effective date of compliance, Missouri Pacific R. Co. v. Austin, 5 Cir., 1961, 292 F.2d 415, 418-419. On September 6, 1961, the Carrier-appellees filed a suit in the Middle District of Florida, the venue district of Atlantic Coast Line to set aside the order. Long thereafter, on August 22, 1962, the Shipper filed suit against the Carrier and other railroads under § 16(2) in the Southern District of New York for the amount of the award with interest and, of considerable importance here, attorney's fees. The Court below overruled the ICC's motions to dismiss which asserted the exclusive method of review is under § 16(2). Thereafter, on the merits, it held the award and order invalid, primarily because of the statute of limitations. 213 F.Supp. 199.³

The ICC asserts that the sole review of an order granting reparations under § 16(1)⁴ is that provided in § 16(2).⁵ The Carrier, on the other hand, insists that § 17(9)⁶ expressly authorizes "a suit to enforce, enjoin, suspend, or set aside" an order, thus setting in train the jurisdictional-procedural provisions of 28 U.S. C.A. §§ 1336,⁷ 1398,⁸ 2321,⁹ 2322,¹⁰ and 2323.¹¹

The ICC's approach is a dual one. It contends, first, that construction of all of the statutes together manifests a congressional purpose to restrict review of a reparations award to the Shipper's suit under § 16(2). Next, both as a part of that argument, and independent of it, the ICC further asserts that there is no reviewable final "order" as called for in §§ 17(9), 1336 or 1398.

These arguments stress the nonself-executing aspects of a reparation award. Since they are "for the payment of money," the Carrier is not bound to comply under the imminence of a mandatory injunction suit brought by the ICC or the United States. § 16(12), 49 U.S. C.A. § 16(12). Emphasizing that § 16 (2) provides only that "the findings and order of the commission shall be prima facie evidence of the facts therein stated," the ICC urges isolated excerpts from early opinions of the Supreme Court to suggest that it is really not an order at all. Thus Mills v. Lehigh Valley R. R. Co., 1915, 238 U.S. 473, 482, 35 S.Ct. 888, 892, 59 L.Ed. 1414, had this to say of § 16(2): "The statutory provision merely established a rule of evidence. It leaves every opportunity to the * * * Carrier to contest the claim."¹²

But we have no doubt that this award has all of the characteristics of finality so far regarded as essential to court review under statutes comparable to those here involved. Rochester Tel. Corp. v. United States, 1939, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147; Columbia Broadcasting System v. United States, 1942, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; Frozen Food Express v. United States, 1956, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910; United States v. Storer Broadcasting Co., 1956, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081; El Dorado Oil Works v. United States, 1946, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053. An award-order is, first, administratively final. Nothing further remains to be done by the ICC. It is not a declaration of consequences dependent on further, future action. Rather, it is positive and presently operative. It declares, first, the violation of the Act (unreasonable, unjust rates, and the like) and then finds the amount of the Shipper's claim. On the two findings, it directs the payment of the award. And as United States v. I. C. C., 1949, 337 U.S. 426, 432-433, 69 S.Ct. 1410, 93 L.Ed. 1451, and Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 205, 80 S.Ct. 1131, 4 L.Ed.2d 1165, made clear, finality for the purposes of review is not to be determined solely by the terms of the order, but by whether such order "if upheld" forecloses a right or imposes an obligation. Assuming that a § 16(2) suit is necessary for the Shipper to coerce payment, the resulting court judgment is to "uphold" the award, to hold it valid. In that judicial result, the administrative proceedings have not in any sense been superseded. The critical finding of a violation of the Act as an essential ingredient to recovery rests wholly and entirely upon the administrative decision of the ICC, not independent court determination, since recovery by the Shipper assumes that the primary jurisdiction aspect has withstood the restricted review, see note 12, supra.

Bearing in mind that the problem here is the determination of the statutory mechanism for review in reparation award order cases generally, not merely the machinery which would satisfy this particular case, we perceive additional factors giving final operative effect to the award-order no matter what happened in the Shipper's § 16(2) suit.

An award-order is in two parts, (1) the determination of violation of statutory policies, unjust, unreasonable rates, discriminatory practices, or the like, and (2) specific damage to the shipper-complainants. So long as element (1) is outstanding and not set aside, it affords the basis for a § 9 suit, 49 U.S. C.A. § 9, by a shipper similarly situated without his first going through a reparation proceeding. And in A. J. Phillips v. Grand Trunk W. Ry. Co., 1915, 236 U.S. 662, 35 S.Ct. 444, 445, 59 L.Ed. 774, and many others, the Court has held that a person not a party complainant to a proceeding before the ICC may, on the general finding that the rate was unjust and unreasonable, bring his independent suit in court. Of the administrative finding that the rates were unjust and unreasonable, the Court said the "finding * * * was general in its operation, and inured to the benefit of every person that had been obliged to pay the unjust rate. Otherwise those who filed the complaint, or intervened during the Commission hearing, would have secured an advantage over the general body of the public, with the result that the order of the Commission would have created a preference in favor of the parties to the record, and would have destroyed the very uniformity which that body had been organized to secure." 236 U.S. 662, at 665, 35 S.Ct. 444, at 445. In addition, there is a substantial indication that in the day-to-day operations of the ICC in the fabrication and building of its own formidable body of transportation law, reparation order-awards announcing principles are regarded as precedents. Thus the opinion reports of the ICC here, note 2, supra, until set aside by a direct proceeding, remain outstanding precedents on the question of the statute of limitation notwithstanding the possibility that in the § 16(2) suit in the Southern District of New York a jury might bring in a verdict for the Carrier. Even 100% success in the § 16(2) suit leaves the Carrier faced with unsatisfactory law for all to use and unsatisfactory fact findings for all shippers to use.

Symmetry also suggests a congressional purpose to allow review of an award-order granting reparations under § 17(9). It is unquestioned that if the Commission denies the Shipper's reparation complaint, review may properly be had under §§ 1336, 1398. Cf. United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451. And in a § 9 suit, 49 U.S.C.A. § 9, the administrative determination of primary jurisdiction elements on a referral to the ICC by a Court is reviewable under §§ 17(9), 1336, 1398. Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165.

Against this massive structure of injunctive reviewability, the Commission's thesis comes down to the assertion that Congress meant to allow court review of the grant of an award-order granting reparation only in the shipper's § 16(2) suit. In so doing, stress is laid on the procedural advantages given the shipper — (1) freedom from court costs, (2) attorney's fees if successful, (3) choice of venue, and (4) relief from the burden of making out a prima facie case by introducing in evidence the administrative findings and order. Urged as a fitting, railroad analogy is the statutory mechanism for awards under the Railway Labor Act, 45 U.S.C.A. §§ 151, 153, First (p). Under this provision, an employee who has obtained an award of the National Railroad Adjustment Board may file suit in the District Court for enforcement if the carrier does not comply with the agency order. The order is prima facie evidence of the facts therein stated. In New Orleans Public Belt R. Commission v. Ward, 5 Cir., 1950, 182 F.2d 654, following Washington Terminal...