Illinois Commerce Com'n v. I.C.C.
| Decision Date | 06 May 1986 |
| Docket Number | No. 85-1101,85-1101 |
| Citation | 789 F.2d 951 |
| Parties | ILLINOIS COMMERCE COMMISSION, et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Illinois Central Gulf Railroad Company, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Interstate Commerce commission.
Gordon P. MacDougall, Washington, D.C. and James E. Weging, with whom Hercules F. Bolos, Chicago, Ill., was on brief, for petitioners.
Louis Mackall, Atty., I.C.C., with whom Charles F. Rule, Acting Asst. Atty. Gen., Robert S. Burk, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, I.C.C., and Catherine G. O'Sullivan, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondents.
Howard D. Koontz, Chicago, see., for intervenor, Illinois Cent. Gulf R. Co.
Before WALD, MIKVA and EDWARDS, Circuit Judges.
Opinion for the Court PER CURIAM.
Under the Staggers Rail Act of 1980 ("the Act"), a railroad may apply for a surcharge on certain rail traffic if previously applicable charges do not generate sufficient revenues to cover 110% of the railroad's variable cost of transportation to or from a line ("off-branch costs"), plus 100% of the carrier's reasonably expected costs of continuing to operate that line ("on-branch costs"). 49 U.S.C. Sec. 10705a(b)(2) (1982). On December 26, 1984, the Illinois Central Gulf Railroad Company ("ICG") filed an application for two surcharges on a line between Clinton and Champaign. 1 The Illinois Commerce Commission ("Illinois") requested cost information from ICG justifying the surcharges, but ICG refused to comply with this request. ICG argues that Illinois was not entitled to this information because it had no standing to challenge the surcharges. Illinois contends that it is entitled to this information because it made its request on behalf of shippers who do have standing. Ultimately, the Interstate Commerce Commission ("ICC") refused to investigate or suspend the surcharges. This petition for review followed. We hold that ICG's refusal to comply with Illinois' request for cost information was unlawful. Because ICG's refusal resulted in the denial of the shippers' right to file an informed petition for suspension and investigation, we remand the petition to the ICC.
Although the Act entitles a shipper to seek the suspension of proposed surcharges, the shipper's burden is not a light one. The shipper seeking the suspension of a surcharge must discharge two difficult responsibilities. First, the shipper must demonstrate
that, after application of the surcharge, the surcharging carrier's revenues from all traffic originating or terminating upon the line to which the surcharge applies exceed 110 percent of such carrier's variable cost of transporting all traffic to or from such line plus such carrier's reasonably expected costs of continuing to operate such line.
49 U.S.C. Sec. 10705a(b)(3)(A) (1982). Second, the shipper must establish to the satisfaction of the Commission that
(A) it is substantially likely that [the shipper] will prevail on the merits;
(B) without suspension, the proposed rate change will cause substantial injury to [the shipper]; and
(C) because of the peculiar economic circumstances of [the shipper], [a future refund will] not protect [the shipper].
49 U.S.C. Sec. 10707(c)(1) (1982) ().
Without doubt, these burdens can be satisfied only by a shipper familiar with the data used to justify the surcharge. The Act assumes that a petitioner will be informed about the railroad's costs of operating the affected line and the revenue attributable to that line. Thus, without access to this information, the shipper's right to petition for a suspension becomes meaningless. Because the railroad is the principal source of this information, it is essential to the statutory process that shippers have the right to obtain the needed information from the railroad. The assumption that the petition filed by the shipper will be an informed one is central to the Act and this, of necessity, requires that a railroad comply with a shipper's request for cost and revenue information. Given the importance of an informed shipper, a railroad's refusal to comply with a shipper's request for information is, without question, unlawful.
The ICC and ICG both concede that shippers are entitled to receive the information necessary to petition the ICC for a suspension and investigation of surcharges. They argue, however, that because Illinois is not a shipper--and thus, they contend, lacks standing to challenge the surcharges 2--ICG need not comply with its request for information. The difficulty with this argument is that Illinois sought cost information from ICG on behalf of two shippers who do have standing--Monticello Grain Company and Weldon Cooperative Grain Company--and in its request for information, Illinois explicitly informed ICG that these shippers authorized the request. ICG gives no reason why it could legitimately district Illinois' representation that it was authorized to make the request. Indeed, ICG rejected Illinois' request without even making an effort to verify that Illinois was acting on behalf of the shippers.
Thus, the railroad seems to argue that Illinois is not entitled to the information even if Illinois is acting on behalf of the shippers. We disagree. Although Illinois may itself lack standing to challenge the surcharges--an issue we need not resolve--it unquestionably may seek information for shippers (with standing) who authorize Illinois to act at their behest. Shippers are entitled to seek assistance from anyone--including Illinois--in preparing a response to a surcharge application. Often shippers and their...
To continue reading
Request your trial