Refrigerated Transport Co. v. United States
| Citation | 313 F. Supp. 880 |
| Decision Date | 22 June 1970 |
| Docket Number | Civ. A. No. 13292. |
| Parties | REFRIGERATED TRANSPORT CO., Inc., Alterman Transport Lines, Inc., Clay Hyder Trucking Lines, Inc., Watkins Motor Lines, Inc., Tompkins Motor Lines, Inc., Argo-Collier Truck Lines, Inc., Central and Southern Truck Lines, Inc., Indiana Refrigerator Lines, Inc. (order of 3/31/70) v. The UNITED STATES of America and the Interstate Commerce Commission, Spencer Packing Company, Needham Packing Company, American Beef Company, Raskin Packing Company, Farmbest, Inc., Missouri Beef Packers, Inc., Mid States Packing Company and Iowa Beef Packers, Inc. (order of 3/31/70); John Morrell & Co., Geo. A. Hormel & Co. and Oscar Mayer & Co. (order of 3/31/70). |
| Court | U.S. District Court — Northern District of Georgia |
Watkins, Daniell, Davis & Serby, Atlanta, Ga., Langston & Massey, Lakeland, Fla., Singer, Lippman & Hardman, Chicago, Ill., for plaintiffs.
John H. D. Wigger, Dept. of Justice, Washington, D. C., Richard W. McLaren, Asst. Atty. Gen., John W. Stokes, Jr., U. S. Atty., for the United States.
Jerome E. Sharfman, Interstate Commerce Commission, Washington, D. C., Robert W. Ginnane, Gen. Counsel, for Interstate Commerce Commission.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, George B. Haley, Jr., Atlanta, Ga., and Jacob P. Billig, Norman C. Barnett, William L. Gardner, Washington, D. C., for intervenors as parties defendants, John Morrell & Co., Geo. A. Hormel & Co. and Oscar Mayer & Co.
Alston, Miller & Gaines, Atlanta, Ga., Eugene D. Anderson, Washington, D. C., for intervenors as defendants, Spencer Packing Co., Needham Packing Co., American Beef Co., Raskin Packing Co., Farmbest, Inc., Missouri Beef Packers, Inc., Mid States Packing Co., and Iowa Beef Packers, Inc.
Before BELL, Circuit Judge, and HOOPER and EDENFIELD, District Judges.
This is an action to enjoin, set aside and annul the July 21, 1969, and November 10, 1969, orders which were entered in Interstate Commerce Commission Proceeding No. 35054, relating to Unloading Restrictions on Meats and Packinghouse Products.1 The district court has jurisdiction under 28 U.S.C. § 1336 and a three-judge court was convened as required by 28 U.S.C. § 2325.
Plaintiffs are motor common carriers operating pursuant to authorization granted by the ICC whereby they transport, inter alia, loose meats and carcass meats from midwestern and central states to the southern states. Under the Interstate Commerce Act plaintiffs are required to publish and file with the ICC tariffs setting forth rates, charges, rules, regulations, and practices, governing the services which they perform and such tariffs are on file at the present time. In addition, regulations of the ICC require all motor carriers to file an Annual Report of Freight Commodity Statistics, which includes information such as the total number of truckload shipments transported and the number of tons and gross freight revenue derived from transportation of (1) fresh or chilled meat (except salted), (2) fresh-frozen meat, and (3) meat products. The report does not include any breakdown to show the percentages of loose, carcass, and packaged meats transported.
Plaintiffs allege that prior to the early 1960's all motor carriers required shippers or consignees of loose and carcass meats to be responsible for unloading operations, but during the late 1950's or early 1960's a number of carriers elected to make an exception in their tariffs and thereby agreed to perform certain unloading tasks themselves. Even then the general rule concerning the unloading of meats placed the responsibility upon consignees, but the tariffs contained specific provisions that certain carriers, including the above-named plaintiffs, would be responsible for unloading loose and carcass meats.2 Due to abusive practices by some of the consignees, carrier unloading proved to be burdensome, unduly expensive, and impractical and after a few years the carriers therefore filed with the ICC tariff schedules under which carrier unloading of loose and carcass meats would be discontinued on or about November 15, 1968. Plaintiffs contend that the only effect of these proposed changes was to cancel the exceptions contained in the previous Bureau and individual tariffs and thereby to put all carriers on an equal footing insofar as loading and unloading of meat is concerned so that all parties to the Bureau and individual tariffs were providing the same services at the same rates.
Various meat shippers and consignees filed petitions for suspension of the rule changes and the Interstate Commerce Commission, while refusing to suspend the changes, did enter into an investigation of the lawfulness of those changes. After a hearing before the Commission, the motor carriers who had made the above-described rule changes were ordered to cancel the changes and to return to the rules in effect prior to November 15, 1968. The Commission noted that there was much evidence of abuse flowing from the carrier unloading rules and it concluded that the carriers had shown adequate reasons for publishing line-haul rates which do not include unloading. It went on to hold, however, that there was merit to the contention by the meat packers and consignees that the effect of the proposed rules would be to diminish the quantum of transportation service performed and that plaintiffs had failed to sustain their statutory burden of proving that withdrawal of the unloading service without decreasing the line-haul rate was just and reasonable.
Plaintiffs contend that rate changes had not been sought by the carriers and that they were completely unaware that the question of rates would be considered by the ICC in connection with these rule changes. In support of this they point out that the Commission's notice of investigation indicated that the investigation concerned the lawfulness of the rules, regulations, and practices contained in the new provisions but made no reference whatever to rates. This, plaintiffs contend, did not serve notice that the reasonableness of rates would be considered, especially in view of the fact that the rates were the same ones they had used prior to instituting carrier unloading and the same ones which still are being used by those carriers who never have provided unloading services. Plaintiffs point out that the Review Board based its decision solely on the fact that plaintiffs had not provided economic justification for the rule changes and then went to elaborate lengths to point out how the carriers could show by representative evidence that the rates would be just and reasonable. However, when the carriers responded to that report by petitioning for reconsideration and for further hearings in order to present the "cost data" which the Board had held was required, Division 2 of the ICC acting as an Appellate Division rejected the petitions for further hearing because "sufficient grounds have not been presented to warrant granting the action sought."
Plaintiffs now contend that the ICC erred in the following ways:
(1) It violated both due process and § 554(b) of the Administrative Procedure Act (5 U.S.C. § 554(b))3 by failing to give adequate and fair notice that the justness and reasonableness of rates would be an issue or the sole determinative issue, in the proceeding;
(2) It refused to consider evidence bearing upon the issue of rates when offered by plaintiffs, and it offered no rational explanation of its reasons for refusing to do so;
(3) It failed to make findings with respect to the National Transportation Policy, as set forth in 49 U.S.C. (preceding § 1), and other important issues which were before the Commission;4
(4) It failed to prescribe just and reasonable rules, regulations, and practices as required by 49 U.S.C. §§ 316(e) and 324a.
Defendants on the other hand contend that plaintiffs did have notice that the justness and reasonableness of rates would be in issue because, in effect, a change in quantum of service without a corresponding change in rate, is a change in rate. Plaintiffs and defendants agree that under Section 216(g) of the Interstate Commerce Act (49 U.S.C. § 316(g)) plaintiffs had the burden of proof to show that the proposed change was just and reasonable, but they disagree as to what the burden was. Plaintiffs contend that it related only to the reasonableness of the proposed rule itself, while defendants contend that the services rendered and the rates charged are so closely related that a tariff changing the former may not be found to be just and reasonable without considering the effect of the changed rule on the justness and reasonableness of the rate.
As to plaintiffs' allegation that the Commission's refusal to grant a rehearing was a clear abuse of discretion, defendants contend that refusal to hear additional evidence cannot amount to an abuse of discretion absent a showing of newly discovered evidence and that in the instant case the evidence plaintiffs wanted to submit at a rehearing was evidence which had been available to them all along. They also point out that plaintiffs could have introduced any evidence they wished merely by filing new papers with the Commission and starting the entire procedure all over again. Such a procedure would, of course, have provided another seven-month period during which the implementation of the proposed rules could have been suspended by the Commission whereas if the old proceedings had been revived suspension would not have been possible since more than seven months had passed since filing of the proposed rule change and the Commission no longer had the power to make the tariffs inoperative while the matter was pending before it.5
On November 28, 1969, an order was issued temporarily restraining defendants from enforcing the ICC's order of November 1969 to the extent that it required a cancellation of the rules requiring...
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