Mississippi Public Service Commission v. I. C. C.

• Decision Date: 09 November 1981
• Docket Number: Nos. 81-4407,81-4410,s. 81-4407
• Citation: 662 F.2d 314
• Parties: MISSISSIPPI PUBLIC SERVICE COMMISSION, Can-Tex Industries, Todd's Farm Supply, W. E. Walker Stores, A. N. Fowler and M. S. Stuckey, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 314

662 F.2d 314

MISSISSIPPI PUBLIC SERVICE COMMISSION, Can-Tex Industries Todd's Farm Supply, W. E. Walker Stores, A. N Fowler and M. S. Stuckey, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America Respondents.

Nos. 81-4407, 81-4410.

United States Court of Appeals Fifth Circuit.

Nov. 9, 1981.

Gordon P. MacDougall, Washington, D. C., Frank B. Barber, Jackson, Miss., for petitioners.

Cecelia E. Higgins, I.C.C., Washington, D. C., for respondents.

John H. Doeringer, Howard D. Koontz, Chicago, Ill., John W. Adams, Jr., Mobile, Ala., for intervenor I.C. Gulf Railroad Co.

Petitions for Review of Orders of the Interstate Commerce Commission.

Before AINSWORTH, REAVLEY and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

On August 14, 1981, pursuant to the provisions of Section 217(a)(1) of the Staggers Rail Act of 1980 (the "Staggers Act"), now codified at 49 U.S.C. § 10705a, Illinois Gulf Central Railroad Company ("ICG") published a branch line surcharge (the "surcharge") of $275 per car on shipments to or from stations on its line between Silver Creek and Columbia, Mississippi. In accordance with Section 10705a(f), which provides that a surcharge tariff may not become effective less than 45 days from the date it is filed, ICG's surcharge tariff was scheduled to become effective on October 3, 1981. On September 21, 1981, twelve days before the scheduled effective date of the surcharge tariff, petitioners filed with the Interstate Commerce Commission (the "Commission") a Petition for Suspension and Rejection. On September 30, 1981, the Suspension Board of the Commission voted not to suspend or investigate ICG's surcharge, a decision which was affirmed by the full Commission on October 2, 1981. Predictably, the decision of the Commission precipitated a series of applications, petitions and motions before this court, as follows:

(1) On October 2, 1981, the petitioners filed an emergency application (No. 81-4410) for a stay of the decision of the ICC. The petitioners point out that there is pending before this court (No. 81-4407) a petition for review of a decision by the Commission on September 10, 1981 (served September 14, 1981) authorizing the abandonment by ICG of the line from Silver Creek to Columbia, Mississippi. The petitioners characterize the surcharge as an attempt to accomplish the de facto abandonment of the line and thus to deny the petitioners the right to effective review of the Commission's abandonment decision. The court, in response to the emergency application for stay, entered a stay pending review until further order of the court, ordered ICG to file a response to the petitioner's motion and ordered the Commission and the Department of Justice to file a brief outlining their positions in the matter not later than October 13, 1981.

(2) On October 2, 1981, the petitioners filed a petition for review of the Commission decision refusing to suspend or investigate the surcharge.

(3) On October 9, 1981, ICG filed a response in opposition to emergency application for stay and motion to dissolve stay, in which ICG argues that the stay should be dissolved for the reason that decisions of the Commission not to suspend or investigate rate charges are not reviewable by the courts. ICG moved for a dismissal of the petition for review of the suspension decision and for the dissolution of the emergency stay.

(4) In addition to filing briefs in opposition to ICG's motions, petitioners moved for a consolidation of the surcharge case and the abandonment case in an expedited proceeding before this court.

For the reasons set forth below, we hold that this court does not have jurisdiction to review the Commission surcharge decision nor to enjoin the surcharge, and we therefore dismiss the petition for review of the surcharge decision (No. 81-4410) and dissolve the emergency stay in No. 81-4410 ordered by this court on October 2, 1981.

I. THE PETITION FOR REVIEW.

The Commission and ICG move for dismissal of the petition for review of the surcharge decision, relying on a long line of Supreme Court cases which make it clear that this court has no jurisdiction to review the merits of a Commission decision not to suspend or investigate a proposed rate increase. See Consolidated Rail Corp. v. National Association of Recycling Industries, Inc., 449 U.S. 609, 101 S.Ct. 775 (1981); Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979); Long Island Rail Road Co. v. Aberdeen & Rockfish Railroad Co., 439 U.S. 1, 99 S.Ct. 46, 58 L.Ed.2d 1 (1978); Aberdeen & Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures ("SCRAP"), 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975); United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). Petitioners contend that this court does have jurisdiction over the Commission decision despite this long line of cases.

A. The Exception to the Rule of Non-Reviewability.

First, petitioners contend that the Supreme Court recognizes an exception to the rule of nonreviewability where the question of the Commission's authority is involved. They argue that the Commission has overstepped its authority in this case by authorizing a de facto abandonment of a line in the absence of an operative certificate of abandonment under 49 U.S.C. §§ 10903-4. ¹ They argue that, whereas the Commission can only suspend surcharges found to be in excess of the 110% standard of § 10705a(b)(3)(A) under § 10705a(b)(6), the Commission is prohibited by § 10903 from authorizing abandonment of a line except where the standard of public convenience and necessity of that section is met. The Supreme Court in Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 458 n. 11, 99 S.Ct. 2388, 2396, 60 L.Ed.2d 1017 (1979), and in Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 638-39 n. 17, 98 S.Ct. 2053, 2058, 56 L.Ed.2d 591 (1978), referred to a limited exception to the rule of nonreviewability of Commission suspension orders. The Court stated in a footnote in Trans Alaska that "courts have jurisdiction to review suspension orders to the limited extent necessary to ensure that such orders do not overstep the bounds of Commission authority." 436 U.S. at 638 n. 17, 98 S.Ct. at 2058 n. 17.

We reject petitioners' contention that this court has jurisdiction over the Commission decision in this case under the exception noted in Seaboard and Trans Alaska. Initially, we question whether a surcharge which would result in a discontinuance of use of the line by shippers is in fact a "de facto abandonment." An "abandonment" occurs when a carrier "discontinues service" without the intent to resume such service. See, e. g., ICC v. Chicago and North Western Transportation Co., 533 F.2d 1025 (8th Cir. 1976); ICC v. Baltimore and Annapolis Railroad Co., 398 F.Supp. 454 (D.Md.1975) aff'd, 537 F.2d 77 (4th Cir.), cert. denied, Alco-Gravure, Inc. v. Baltimore & Annapolis Railroad Co., 429 U.S. 859, 97 S.Ct. 159, 50 L.Ed.2d 136 (1976). Petitioners have cited no cases supporting the proposition that an increase in rates is an abandonment within the meaning of the Act. In Aeronautical Radio, Inc. v. FCC, 642 F.2d 1221, 1233 (D.C.Cir.1980), cert. denied, --- U.S. ----, 101 S.Ct. 2059, 68 L.Ed.2d 357 (1981), on the other hand, the court held, in an analogous situation involving the Communications Act, that a change in "service" in which "only the rates differed," "did not in fact discontinue, reduce, or impair any service at all." ² Congress has enacted two distinct sections in Title 49 to deal with rate increases, on the one hand, and "abandonments," on the other hand. In providing a different standard for Commission decisions to suspend proposed surcharges, Congress clearly did not intend for the standard applied to abandonment proceedings to be applicable to suspension proceedings. Moreover, in establishing the standard by which applications for abandonment are to be approved, the statute says nothing about ICC actions which may have the effect of causing shippers to discontinue the use of a line. We read § 10903 to restrict the Commission only in its approval of applications for abandonment and in the issuance of abandonment certificates. Nothing in § 10903 indicates that that section is intended to constrain any other activities of the Commission.

Even characterizing the railroad surcharge as a possible "de facto abandonment," this court lacks jurisdiction to review the Commission's decision. The exception relied on by petitioners is limited to determinations of the authority of the Commission to take the action in question. Here, there is no question that the Commission had the authority to decide not to suspend or investigate the surcharge. Review of a Commission suspension decision whenever it is alleged that a rate increase will have the effect of a de facto abandonment of a line is clearly contrary to the long line of Supreme Court cases cited by the Commission and ICG. In Aeronautical Radio, Inc. v. FCC, 642 F.2d 1221, 1233 (D.C.Cir.1980), cert. denied, --- U.S. ----, 101 S.Ct. 2059, 68 L.Ed.2d 357 (1981), the court recognized:

Were we to accept petitioner's view, virtually every rate increase might be argued to be a discontinuance of "service" requiring a prior finding of convenience and necessity by the Commission. The attendant burdens would be enormous. Likewise, such a construction would be at odds with the scheme of carrier initiated tariff filings which is at the heart of the Communications Act.

We believe that this case involves an analogous situation. ³

Review of Commission suspension decisions whenever de facto abandonment is alleged would undermine the line of cases in which we have held that such decisions are not reviewable and would be contrary to the procedural framework adopted...