Leonard Bros. Trucking Co. v. United States, Civ. No. 69-646.

• Decision Date: 18 July 1969
• Docket Number: Civ. No. 69-646.
• Citation: 301 F. Supp. 893
• Parties: LEONARD BROS. TRUCKING CO., Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Munitions Carriers Conference, Inc., Tri-State Motor Transit Co., Hughes Transportation, Inc., Riss & Co., Inc., and C. I. Whitten Transfer Co., Intervenors-Defendants.
• Court: U.S. District Court — Southern District of Florida

301 F. Supp. 893

LEONARD BROS. TRUCKING CO., Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants and Munitions Carriers Conference, Inc., Tri-State Motor Transit Co., Hughes Transportation, Inc., Riss & Co., Inc., and C. I. Whitten Transfer Co., Intervenors-Defendants.

Civ. No. 69-646.

United States District Court S. D. Florida.

July 18, 1969.

Thos. B. DeWolf, of Helliwell, Melrose & DeWolf, Miami, Fla., and Turney & Turney, Washington, D. C., for plaintiff.

Lloyd G. Bates, Jr., Asst. U. S. Atty., for the United States.

Emmanuel H. Smith, Washington, D. C., for Interstate Commerce Commission.

Wm. P. Simmons, Jr., and Karl Hart, of Shutts & Bowen, Miami, Fla., and J. H. Dail, Jr., of Croft & Dail, Washington, D. C., for Munitions Carriers Conference, Inc.

J. Thomas Cardwell, of Akerman, Senterfitt, Eidson, Mesmer, Robbinson & Wharton, Orlando, Fla., for Gateway Transportation Co., Inc., C. W. Transport, Inc., Clairmont Transfer Co., Inc. and Allard-Express, Inc.

Shelby Highsmith, Miami, Fla., and Elliott Bunce, of Rice, Carpenter & Carraway, Washington, D. C., for Regular Common Carrier Conference of American Trucking Associations, Inc.

Before DYER, Circuit Judge, CHOATE, Senior District Judge, and MEHRTENS, District Judge.

DYER, Circuit Judge:

Spawned amongst a multiplicity of litigation in various district courts in various states, this suit began as a civil action by Leonard Bros. Trucking Co., Inc., against the United States and the Interstate Commerce Commission, to enjoin and set aside two ICC orders, International Transport¹ and Ace Doran,² which ruled that certain commodities are beyond the purview of ICC "heavy haulers" Certificates of Public Convenience and Necessity authorizing interstate transportation of commodities which, because of their size or weight, require the use of special equipment. Finding that one of the orders arose out of the referral of an issue to the ICC by the United States District Court for the Western District of Missouri, we conclude that that Court has exclusive jurisdiction and venue of this action insofar as it seeks to set aside that order and that the instant suit to that extent should be transferred to that Court. We additionally conclude that because of the interrelationships of the two ICC orders and the questions which will be determined by that Court upon the partial transfer of this action, due regard for the conservation of judicial energies requires a stay of the remaining proceedings in this Court pending the outcome of the Missouri proceedings.

On June 14, 1967, Tri-State Motor Transit Company and certain other munitions haulers filed suit against International Transport, Inc. in the United States District Court for the Western District of Missouri, Southwestern Division, under the so-called "self-help" provisions of section 222(b) (2) of the Interstate Commerce Act, 49 U.S.C.A. § 322(b) (2), seeking to enjoin International from transporting Class A and Class B explosives and related dangerous articles. On June 30, 1967, following a hearing, Judge Elmo B. Hunter entered extensive findings of fact and conclusions of law in the suit, No. 2054, and a preliminary injunction restraining International from transporting Class A and B explosives which when boxed or packaged do not exceed 150 pounds per box whether palletized or unpalletized. Judge Hunter did not, however, enjoin the transportation by International of 500 and 750 pound bombs. The Judge concluded that although the transportation of the Class A and B explosives by International constituted a "clear and patent" violation of the Act, 49 U.S.C.A. §§ 303 (c) and 306, enjoinable under 49 U.S. C.A. § 322(b) (2), a determination of whether 500 and 750 pound bombs could be transported under a heavy hauler certificate "is obviously of the type Congress intended to be decided in the first instance by the Interstate Commerce Commission in the exercise of its expertise."

By an order dated September 14, 1967, the Interstate Commerce Commission instituted an investigation into the authority of International to carry 500 and 750 pound bombs. The ICC then notified Judge Hunter that it intended to consider the matter then pending in No. 2054, and on October 23, 1967, Judge Hunter entered an order, mandatory under 49 U.S.C.A. § 322(b) (3), staying further action in No. 2054 pending disposition of the ICC proceeding or until further order of the Court.³

On December 31, 1968, the ICC entered its order holding that those persons with heavy hauler certificates were not authorized to carry the explosives involved in the District Court case, including 500 and 750 pound bombs. International Transport, Inc. — Investigation and Revocation of Certificates, I.C.C. Docket No. MC-C-5766. International and other heavy haulers were not pleased. Upon learning of the decision, Leonard Bros. Trucking Co., Inc., a heavy hauler and plaintiff herein, sought and was permitted to intervene in the ICC's International proceedings for the purpose of seeking rehearing of the decision.⁴

On April 22, 1969, the ICC entered an order denying Leonard Bros. Trucking Co.'s petition for rehearing of the Commission's International decision. On the same date the entire Commission issued its decision in a separate proceeding, Ace Doran Hauling & Rigging Co., Investigation of Operations, I.C.C. Docket No. MC-C-4397, in which the Commission amplified guidelines for interpretation and future application of "size or weight" restrictions, affirming its International Transport decision in the process. Since both the International Transport and Ace Doran decisions adversely affect heavy haulers by curtailing the commodities they can carry, Leonard Bros. on May 28, 1969, filed the instant action against the United States and the Interstate Commerce Commission seeking to enjoin and set aside the ICC's International Transport and Ace Doran decisions. On June 2, 1969, International Transport filed a new action in the Western District of Missouri, No. 2136, also to set aside the ICC orders. On June 3, 1969, this Court entered a temporary restraining order against the United States and the Interstate Commerce Commission temporarily restraining them from placing the International Transport and Ace Doran orders into effect. On the same date orders were entered granting motions by various holders of munitions carrier certificates for leave to intervene. On June 20, 1969, the Chief Judge of the Fifth Circuit entered an order constituting this three-judge court, before which are motions by various intervenors-defendants to vacate the restraining order and to dismiss the complaint, upon which a hearing has been held.

The intervenors-defendants take the position, unaccompanied by the United States and ICC who remain aloof on the issue, that exclusive jurisdiction and venue of a civil action to enjoin or set aside the ICC's International Transport order is in the District Court for the Western District of Missouri.⁵ They bottom their position upon the provisions of 28 U.S.C.A. §§ 1336(b) and 1398(b). Section 1336(b) states as follows:

(b) When a district court or the Court of Claims refers a question or issue to the Interstate Commerce Commission for determination, the court which referred the question or issue shall have exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission arising out of such referral.

Section 1398(b) is a corresponding venue provision which states:

(b) A civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, an order of the Interstate Commerce Commission made pursuant to the referral of a question or issue by a district court or by the Court of Claims, shall be brought only in the court which referred the question or issue.

The above provisions were the result of 1964 amendments to sections 1336 and 1398 by which Congress attempted to provide a manner for keeping issues before a court which is familiar with them. The problem sought to be avoided typically arose when an issue was presented in a suit by a carrier which was regarded as being within the primary jurisdiction of the Interstate Commerce Commission, requiring referral of that issue to the Commission for decision. Under the pre-amendment law, appeals from the ICC orders entered pursuant to such referrals did not necessarily go to the court that referred the issue to the Commission, and in the case of issues referred to the Commission by the Court of Claims, appeal was never to the referring court. This was because under the then-existing sections 1336 and 1398, jurisdiction to review all ICC orders was in the district courts and venue was in the district in which the party bringing the action had its residence or principal office. See 1964 U. S.Code Cong. & Admin.News, Vol. 2, at 3235-3236.

The effect of those jurisdiction and venue provisions often was that the court most familiar with the issues referred for decision did not hear the appeals, and, further, it remained powerless to act pending full review of the ICC orders by another court, sometimes for as long as ten years. Id. Thus several courts were in the position of having to determine issues which most conveniently and properly should be left to a single court. See Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 80 S. Ct. 1131, 4 L.Ed.2d 1165. The inefficiencies of the system are quite apparent.

It was after the 1964 amendments to the jurisdiction and venue statutes that section 222(b) (2) of the Act, 49 U.S.C. A. § 322(b) (2), under which International Transport, Inc. was originally sued, was passed to allow injunctive suits between carriers. Under section 222(b), motor carriers are able to apply directly to district courts for injunctive relief against "clear and patent" attempts to circumvent regulations in the areas involved.

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