National Motor Freight Traffic Ass'n v. United States

• Decision Date: 10 May 1962
• Docket Number: Civ. A. No. 1694-60.
• Citation: 205 F. Supp. 592
• Parties: NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC., et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — District of Columbia

205 F. Supp. 592

NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC., et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Civ. A. No. 1694-60.

United States District Court District of Columbia.

May 10, 1962.

Bryce Rea, Jr., Washington, D. C., for plaintiffs.

Joel Hoffman, Atty., Dept. of Justice, for defendant United States.

Fritz R. Kahn, Atty., Interstate Commerce Commission, for defendant Interstate Commerce Commission.

James L. Givan, Washington, D. C., D. Robert Thomas, Chicago, Ill., for intervenors.

Before BURGER, Circuit Judge, and MATTHEWS and WALSH, District Judges.

BURGER, Circuit Judge.

Plaintiffs seek to set aside and annul a decision of the Interstate Commerce Commission¹ approving a tariff published by the Western Freight Association, a freight forwarder, in which reduced rates were set out for freight shipments of 20,000-30,000 pounds moving from the area called Official Territory (generally the territory East of the Mississippi River and North of the Ohio and Potomac Rivers) to points on the Pacific Coast. Plaintiffs, all motor carrier associations whose members are individual carriers engaged in interstate commerce, attack the tariff as unlawful insofar as under its terms freight forwarders need not perform certain specific freight forwarding duties which the plaintiffs urge are required by § 402(a) of the Interstate Commerce Act. 56 Stat. 284 (1942), 49 U.S.C.A. § 1002(a) (5). It is argued that the freight forwarders under this tariff thus illegally enter into destructive competition with the motor carrier industry contrary to established national transportation policy. The Western Freight Association and nine² other freight forwarders with similar vital interests have intervened.

The Government vigorously argues that the plaintiffs lack standing to sue as they are simply associations of carriers rather than carriers and hence will not be affected by the challenged order of the Commission. Plaintiffs point out that they are incorporated organizations engaged in many official services for the individual carriers comprising their membership, including, inter alia, frequent appearances before the Interstate Commerce Commission on behalf of members.

However, the claims made by plaintiffs regarding the multiple services they undertake for members are not relevant to the question of standing to sue in this court. Nor is standing in a judicial proceeding to be equated with participation in a proceeding in the Interstate Commerce Commission. An association's access to administrative agency proceedings rests on a different basis from standing to sue in this court. See Pittsburgh & W. Va. Ry. Co. v. United States, 281 U.S. 479, 50 S.Ct. 378, 74 L. Ed. 980 (1930). The essence of any litigant's qualification to sue is his susceptibility to injury in a legally cognizable sense, which, stated another way, is simply the reality of his being aggrieved by the decree or party he challenges. The law provides no remedies for imagined detriment. In this light, the fact stands out that the plaintiff associations will in no way be affected by the freight forwarder rates fixed by the challenged Commission order except in the remote sense that the problems of their members are their concern. The associations are not engaged in the business of motor transportation, nor subject to the regulatory provisions of the Interstate Commerce Act. Whatever novel competitive effects, if any, may flow from the Commission's order, it will not affect the associations but only some of their individual members; consequently it cannot be said that the associations face any but a vicarious economic threat and that only in the narrow sense that adverse economic effects on members may ultimately but indirectly cause a diminution of support or contributions for the associations. Even this remote contingency is speculative. This would be an attenuated form of general economic injury for which courts have been reluctant to give relief especially when it results from normal non-discriminatory competitive patterns. See Hines Yellow Pine Trustees v. United States, 263 U.S. 143, 44 S.Ct. 72, 68 L.Ed. 216 (1923); Alexander Sprunt & Son, Inc. v. United States, 281 U.S. 249, 50 S. Ct. 315, 74 L.Ed. 832 (1930).

We do not find Associated Industries of New York State v. Ickes, 134 F.2d 694 (2d Cir. 1943), dismissed as moot, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414, persuasive or applicable authority to the contrary. There the Bituminous Coal Act of 1937 accorded standing to "persons aggrieved," a category of litigant which under broad Supreme Court interpretations³ included anyone threatened with economic adversity. A "person aggrieved," as the Ickes case pointed out, "need not show that he has such a `standing' as is ordinarily required in injunction suits to restrain actions by officials alleged to be unlawful * * *." 134 F.2d at 702. (Emphasis added.) The present plaintiffs have brought an injunction suit against the United States, and the requirements of standing which "ordinarily apply" are the requirements to be met. See Utah Citizens Rate Ass'n v. United States, D.C., 192 F.Supp. 12 (1960). Neither Eastern Express, Inc. v. United States, D.C., 198 F.Supp. 256 (1961), aff'd, 369 U.S. 37, 82 S.Ct. 640, 7 L.Ed.2d 548 (1962), nor American Trucking Ass'ns v. United States, 364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed.2d 1527 (1960), bar this conclusion, since in both cases the plaintiffs were comprised of individual carriers as well as membership associations, and where one party thus has standing to sue, as did the individual carriers there, it is immaterial under the liberal intervention statute, 28 U.S.C. § 2323, that the remaining association plaintiffs might not have had standing to originally bring suit. See Arrow Transp. Co. v. United States, 176 F.Supp. 411 (D.C.Ala.1959), aff'd., 361 U.S. 353, 80 S.Ct. 406, 4 L.Ed.2d 362 (1960).

Assuming, arguendo, we are in error on the issue of standing,⁴ the importance of the case suggests the desirability of considering the merits so that the parties will have our views on the substantive as well as the jurisdictional issue, for whatever that may be worth.

Section 402(a) (5) of the Interstate Commerce Act, 49 U.S.C.A. § 1002(a) (5) describes a freight forwarder as

"any person which * * * (other than a motor, rail or water carrier subject to Part I, II or III of the Act) holds itself out to the general public as a common carrier to transport or provide transportation of property, or any class or classes of property, for compensation, in interstate commerce, and which, in the ordinary and usual course of its undertaking, (A) assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments, and (B) assumes responsibility for the transportation of such property from point of receipt to point of destination, and (C) utilizes, for * * * transportation of such shipments, the services of a (motor, rail or water) carrier or carriers subject to part I, II, or III of this Act."

In essence, the freight forwarder is the intermediary between shippers with a typically small consignment (300-400 pounds,) and the carriers who transship the goods by rail, motor or water to the consignee. Ordinarily a single shipper cannot assemble a shipment sizable enough to fully load a boxcar or truck, and must thus pay higher less-than-car or truckload rates for carriage. The freight forwarder, however, by consolidating consignments of different goods from multiple shippers at a single terminal is enabled to fill entire trucks or boxcars, usually with up to 60,000 pound capacities, and thereby obtains commensurately lower rates from the carrier, thus effecting a substantial saving from which he is paid. The individual shipper will conventionally pay the freight forwarder nearly the same rate he would pay the common carrier, but through the freight forwarder's handling is afforded the added benefits of expedited service (1) because of the forwarder's freedom to specify the routing of consolidated shipments and (2) because of the absence of delays while economically transportable quantities accumulate with the carrier. The forwarder's profit stems from the difference between the amount it is charged for the mass shipment by the carrier and the amount it charges the individual shippers whose several consignments comprise the consolidated load. See Chicago, Milwaukee, St. Paul & Pac. R. Co. v. Acme Fast Freight, Inc., 336 U.S. 465, 69 S.Ct. 692, 93 L.Ed. 817 (1949).

As plaintiffs urge, it is quite true that the forwarders usually and in the ordinary course of their undertaking perform or provide for the performance of certain reasonably distinct functions: a forwarder ordinarily (1) assembles the several different shipments at its terminal by having them brought in from the various consignor premises, usually by motor carrier; (2) it consolidates the shipments into a proportion qualifying for the reduced carrier rate and in this form sees to their safe transport to destination; (3) it "breaks...