National Tank Truck Carriers, Inc. v. Burke, 79-1057

• Decision Date: 12 October 1979
• Docket Number: No. 79-1057,79-1057
• Citation: 608 F.2d 819
• Parties: NATIONAL TANK TRUCK CARRIERS, INC., Plaintiff, Appellee, v. Edward F. BURKE, Administrator, Rhode Island Division of Public Utilities and Carriers, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 819

608 F.2d 819

NATIONAL TANK TRUCK CARRIERS, INC., Plaintiff, Appellee, v. Edward F. BURKE, Administrator, Rhode Island Division of

Public Utilities and Carriers, Defendant, Appellant.

No. 79-1057.

United States Court of Appeals, First Circuit.

Argued Sept. 12, 1979.

Decided Oct. 12, 1979.

John M. Roney, with whom John R. McDermott, Sp. Asst. Atty. Gen., and Mann & Roney, Providence, R. I., were on brief, for appellant.

Lawrence W. Bierlein, Washington, D. C., with whom James J. McGair, Providence, R. I., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, DOOLING, Senior District Judge. ^*

COFFIN, Chief Judge.

Appellant Burke, Administrator of the Rhode Island Division of Public Utilities & Carriers (the Division), appeals from the entry of a preliminary injunction enjoining him from enforcing certain state rules and regulations pertaining to the transportation of liquid energy gases (LEG).

The interstate transportation of such gases is regulated by the United States Department of Transportation (DOT) pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, Et seq. The Act, however, does not call for complete preemption of all state regulations in this area. Rather, it provides that all inconsistent state regulations are preempted except those for which the Secretary of the DOT grants a specific exemption. Thus, all consistent and exempted inconsistent state regulations are allowed to remain in effect. ¹

The Rhode Island legislature empowered the Division to promulgate regulations governing LEG use, storage, and transportation. Prompted by the recommendations of a Governor's task force created in the wake of concern about several published reports of catastrophic LEG accidents elsewhere appellant issued a series of "emergency regulations" governing the highway transportation of LEG intended for use by Rhode Island public facilities.

Following the effective date of these regulations, appellee National Tank Truck Carriers, Inc., an association representing a large number of tank truck carriers, several of whom carry LEG to Rhode Island public facilities, filed an action in the district court requesting, in part, preliminary and permanent injunctive relief preventing enforcement of the state regulations on the grounds that they were preempted by the federal Act. Two days prior to the hearing of the appellee's request, the state applied to the DOT for a ruling pursuant to department procedures ² on the question of whether or not the state regulations were inconsistent with federal law. There were indications that the DOT might issue such a ruling during the early summer of 1979; however, it has not yet done so.

Following a two day hearing, the district court denied the motion for a preliminary injunction except with respect to three state requirements pertaining to vehicle equipment. With regard to these three regulations ³ the district court found that they "may well be invalid" and that in order to comply with them appellee would have to incur substantial expenses. The court therefore enjoined enforcement of these particular regulations "for a reasonable time" until the DOT determination was issued. The determination was not forthcoming as had been expected. Preferring to defer to the DOT for a final determination of the consistency issue, the district court continued the injunction despite the delay. ⁴

Appellant's first contention is that the actions of the district court are barred by the doctrine of primary jurisdiction. He asserts that determinations of lack of consistency, hence preemption absent an exemption, can only be made by the DOT. Therefore, appellant argues, since the district court cannot make a final determination on the question of consistency, it should not have issued the preliminary injunction which necessarily implies an opinion about the final answer. See Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973).

Appellant's second contention is that even assuming that a district court could issue such an injunction, in the present case it was an abuse of discretion to do so. Specifically, appellant claims that the district court improperly applied the traditional equitable standards for ruling on motions for preliminary injunctions. We shall address each of appellant's two contentions separately.

I.

" The doctrine of primary jurisdiction is a flexible tool for the allocation of business between court and agency and should seldom be invoked unless a factual question requires both expert consideration and uniformity of resolution." Locust Cartage Co., Inc. v. Transamerican Freight Lines, Inc.,430 F.2d 334, 340 n. 5 (1st Cir.), Cert. denied, 400 U.S. 964, 91 S.Ct. 365, 27 L.Ed.2d 383 (1970). Properly understood, the doctrine is not jurisdictional per se, but rather is a means of procuring "harmony, efficiency, and prudence" in areas of overlapping judicial and administrative concern. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 580 n. 1 (1st Cir.), Cert. denied, --- U.S. ----, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). Moreover, the mere fact that an administrative agency is prepared to make a determination of an issue within an area of its concern does not itself call for invocation of the doctrine. In a particular area, harmonious, concurrent exercise of jurisdiction by both the agency and the courts may well be the most efficient and prudent means of proceeding. See Mashpee Tribe v. New Seabury Corp., supra.

While the pertinent factors to be considered are numerous and vary from case to case, See Mashpee Tribe v. New Seabury Corp., supra, an important preliminary consideration is whether judicial deference to agency determination lies at the heart of the applicable statutory scheme created by Congress. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 114-15, 94 S.Ct. 466, 38 L.Ed.2d 344 (1973); Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973); Locust Cartage Co., Inc. v. Transamerican Freight Lines, Inc., supra. The statute in this case provides for two relevant determinations. Section 1811(a) calls for a determination that a particular state regulation is inconsistent with federal law. Section 1811(b) provides for a determination of whether a state regulation determined to be inconsistent nevertheless merits an exemption from preemption. The determination necessitated by § 1811(b) is specifically assigned by Congress to the DOT. Understandably, Congress was apparently concerned that the expertise of the agency be applied in any determination that an inconsistent state regulation be allowed to remain in effect.

The statute is silent, however, as to who is to make the determination of whether a state regulation is in fact inconsistent and thus preempted unless exempted by a § 1811(b) DOT ruling. Juxtaposed with the explicit provision for DOT determination in § 1811(b), this silence implies that the concerns which led Congress to provide for DOT determination of exemptions were not equally important in the drafting of § 1811(a). Rather, it seems reasonable to infer that Congress was content to allow Either the agency or the courts to make the determination of inconsistency.

Indeed, DOT itself has so interpreted the Act. It has stated that "(a) determination as to whether a state or local requirement is consistent or inconsistent with a Federal statute or Federal regulations is traditionally judicial in nature", yet the Act does not require that the courts be the "exclusive arbitrators" of the issue. 41 Fed.Reg. 38168 (1976). Thus, if we were to adopt appellant's position, we would have to reject DOT's understanding of its role under the Act in order to take advantage of its expertise in interpreting and enforcing the Act.

It therefore seems reasonable to conclude that a district court is not required to defer to the DOT for determinations of inconsistency. ⁵ This conclusion is buttressed by the fact that the technical expertise required in making a § 1811(b) determination that an inconsistent state regulation may nevertheless remain in effect is not called for to the same degree in making a § 1811(a) finding that a regulation is inconsistent and preempted. Such a difference between the level of expertise required is an important factor in deciding whether deference to an initial agency determination is necessary. See Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 580 (1st Cir. 1979). Moreover, in the event that the DOT might be concerned that a particular judicial determination of inconsistency is unwarranted, it can grant a § 1811(b) exemption, negating the ramifications of the perceived error. ⁶

We thus find that the doctrine of primary jurisdiction would not bar a judicial determination that a state regulation is preempted by federal law. It follows that the doctrine does not require us to set aside the preliminary injunction simply because the court expressed a view as to what the final decision on the merits might be.

II.

" The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits." Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). Application of these standards to a particular set of facts is not a mechanical process, and other factors may enter into consideration. See, e. g., Tuxworth v. Froehlke, 449 F.2d 763 (1st Cir. 1971) (required degree of likelihood of success on the merits depends upon various considerations); Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115 (2d Cir. 1975), Cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976) (district court's discretion in granting or denying injunction is greater when the public interest is involved).

For purposes of appellate review, however, the issue to...