National Insulation Transp. Committee v. I. C. C.

Decision Date20 July 1982
Docket NumberNo. 81-1328,81-1328
Citation683 F.2d 533,221 U.S.App. D.C. 192
PartiesNATIONAL INSULATION TRANSPORTATION COMMITTEE, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Consolidated Rail Corporation, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petition for Review of an Order of the Interstate Commerce commission.

Charles W. Chapman, with whom Mary Cheryl Matheis, Washington, D.C., was on the brief, for petitioner.

Lawrence H. Schecker, Atty., I. C. C., with whom Kathleen M. Dollar, Associate Gen. Counsel, John J. Powers, III, Kenneth P. Kolson, Attys., Dept. of Justice, and Robert S. Burk, Acting Gen. Counsel, I. C. C., Washington, D.C., were on the brief, for respondents. Richard A. Allen, Gen. Counsel, I. C. C., Washington, D.C., also entered an appearance for respondents.

Anne E. Treadway, with whom John A. Daily, Philadelphia, Pa., was on the brief, for intervenor.

Before WILKEY and WALD, Circuit Judges, and CELEBREZZE, * Senior Circuit Judge for the Sixth Circuit.

CELEBREZZE, Senior Circuit Judge:

The National Insulation Transportation Committee, petitioner, appeals from the Interstate Commerce Commission's decision declining to order refunds of excess charges paid under a practice that it determined to be unreasonable. The Commission cancelled Consolidated Rail Corporation's minimum weight requirements for shipments of insulating materials as unreasonable; the Commission decided, however, that it was not required to award refunds to the shippers and refused to order such refunds. We believe that the Commission acted within its discretion in declining to award a refund and, therefore, affirm.


Consolidated Rail Corporation (Conrail), intervenor, filed a tariff for eastern territory rates, effective June 30, 1979, which terminated its participation in joint rates on insulating materials for shipment weights of less than 24,000 pounds per railroad car. As a result of this action, a shipper would be charged for shipping 24,000 pounds even though a shipment weighed considerably less. 1 On June 19, 1979, the National Insulation Transportation Committee (NITCOM) filed a verified complaint and petition with the Commission seeking rejection or suspension of the tariff. NITCOM asserted that Conrail's cancellation of the previous minimum weight requirements for 40- and 50-foot railroad cars would increase NITCOM's members' per car charges 12 to 29 percent, because the proposed minimum weight exceeded the amount of insulation a railroad car can contain. 2 NITCOM alleged that because insulating material could not be loaded to the proposed weight requirements, Conrail's higher minimum weights were an unreasonable practice in violation of 49 U.S.C. Secs. 10701 & 10702, would create undue preferences in violation of 49 U.S.C. Sec. 10741, and would be a wrongful cancellation of joint routes in contravention of 49 U.S.C. Sec. 10705. The Commission allowed the tariff to become effective, but instituted an investigation into the lawfulness of the schedules pursuant to its authority under 49 U.S.C. Sec. 10707.

During the investigation, Conrail filed a similar tariff, effective October 20, 1979, which covered traffic on official and western trunk lines. NITCOM filed a petition for suspension of the tariff. Unlike its first petition, NITCOM's second verified complaint contained allegations of Conrail's market dominance over the pertinent transportation. The Commission instituted an investigation, but again refused to suspend the tariff.

In the proceedings concerning the two tariffs, Conrail asserted that its actions were reasonable because they would reduce alleged operating deficits and cross-subsidies. Conrail submitted a transportation cost study which indicated that the previous minimum weights resulted in minimal profit margins and that cost considerations justified the minimum weight changes. Conrail alleged that boxcars were designed to carry much greater weight loads than the loading weight of insulation; in addition, higher minimum loads would cover the expenses of moving an entire car and encourage the development of heavier loading techniques. Conrail asserted that the change in minimum weight requirements was uniformly and fairly applied.

NITCOM's evidentiary submission in the first proceeding reiterated the allegations contained in the original complaint. NITCOM submitted evidence that rebutted Conrail's cost studies: the revenue-cost ratios under the new weight requirements were excessive and indicated that Conrail would have large profit margins. NITCOM argued that the direct effect of the proposed minimum weight requirements would be to increase its members' shipping costs and essentially require them to pay for a shipment of air. On September 24, 1979, NITCOM submitted evidence showing that Conrail had market dominance under both the revenue-cost ratio and the market share tests 3 and alleged that the proposed tariff would result in unreasonable rates. In the second proceeding, NITCOM submitted evidence concerning transportation costs, unreasonable rates, and market dominance. 4 It repeated its allegations of violations of the Interstate Commerce Act.

On April 29, 1980, after consolidating the proceedings, the Commission served its investigative decision. First, the Commission held that it had no jurisdiction to find that Conrail's action resulted in unreasonably high rates, because no market dominance findings could be made. The Commission noted that NITCOM failed to submit evidence of market dominance at the protest stage of the initial proceeding. Second, the Commission, in the preliminary stages of its investigation, did not make market dominance findings. NITCOM's late allegations of market dominance-made with only five days remaining in the statutory period 5-led the Commission to conclude that it had insufficient time to make market dominance findings. With respect to the second proceeding, the Commission noted that the parties had presented conflicting evidence concerning market dominance and that "evidence sufficient to determine this issue was not produced by the parties and insufficient time remained within the 90-day period to request the submission of further evidence." Furthermore, the Commission did not find Conrail's proposal unreasonably discriminatory. The Commission did, however, find the proposed minimum weights for insulating materials to be an unreasonable practice and ordered cancellation of the practice. The Commission declined to award refunds because "the charges, which depend on the rate as well as the minimum weight, have not been found unreasonable."

On May 19, 1980, NITCOM petitioned the Commission to reconsider its decision to refuse to award refunds. It argued that 49 U.S.C. Sec. 10707 requires the award of refunds, that failure to award refunds would be inconsistent with Conrail Surcharge on Pulpboard, 362 I.C.C. 740 (1980), and that public policy required the Commission to award refunds. On January 8, 1981, the Commission served a final decision, affirming its finding that Conrail should not be ordered to refund charges to the shippers. The Commission reasoned that only an unreasonable practice, not an unreasonable rate, was involved in the proceedings; it concluded, therefore, that 49 U.S.C. Sec. 10707(d), which required a refund for unreasonable rates, was not applicable. It noted that no market dominance findings had been made and asserted that the determination of damages in a proceeding concerning practices is more difficult than in one concerning rates. The Commission concluded that the language and purposes of the Interstate Commerce Act did not require automatic refunds in this case; it declined to exercise its discretion to award refunds.


Initially, we must decide whether the Commission may determine that a particular practice is unreasonable and yet decline to award a refund for excess charges. NITCOM contends that under such circumstances, the Commission must award a refund.

The resolution of this issue requires a careful examination of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. Secs. 10101 et seq. (4-R Act). Statutory construction must begin with the language of the statute. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980); National Association of Recycling Industries, Inc. v. I. C. C., 660 F.2d 795, 799 (D.C.Cir.1981). In the absence of persuasive reasons to the contrary, a court must follow the axiom that Congress intended that statutory language be given its plain and ordinary meaning. See Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 1184, 43 L.Ed.2d 469 (1975); Banks v. Chicago Grain Trimmers Association, 390 U.S. 459, 465, 88 S.Ct. 1140, 1144, 20 L.Ed.2d 30 (1968).

Moreover, a court must, if possible, give effect to every phrase of a statute so that no part is rendered superfluous. In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1362 (D.C.Cir.1980). Thus, we presume that the use of different terminology within a statute indicates that Congress intended to establish a different meaning. See, e.g., United States v. Rice, 671 F.2d 455, 460 (11th Cir. 1982) (Congress' "choice of different verbs to characterize the two situations is a choice which we properly take as evidence of an intentional differentiation"); Lankford v. L. E. A. A., 620 F.2d 35, 36 (4th Cir. 1980) ("clear use of different terminology within a body of legislation is evidence of an intentional differentiation"); United States v. Wong Kim Bo, 472 F.2d 720, 722 (3rd Cir. 1972).

These general principles of statutory construction lead us to conclude that the Commission is not required to award a refund if it finds a practice to be unreasonable. The 4-R Act provides that a refund is mandatory where...

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