Southern Ry. Co. v. I.C.C.
| Decision Date | 17 March 1977 |
| Docket Number | No. 76-1703,76-1703 |
| Citation | 553 F.2d 1345 |
| Parties | SOUTHERN RAILWAY COMPANY, Appellant, v. INTERSTATE COMMERCE COMMISSION et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David E. McGiffert, Washington, D.C., with whom James H. McGlothlin and David A. Levitt, Washington, D.C., were on the brief, for appellant.
Raymond Michael Ripple, Atty., I. C. C., Washington, D.C., for appellee.
Before DANAHER, Senior Circuit Judge, McGOWAN and TAMM, Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge DANAHER.
Southern Railway Company, herein, Southern, is a common carrier by railroad subject to regulation under the Act 49 U.S.C. §§ 1, et seq., by the Interstate Commerce Commission, herein ICC or sometimes, the Commission. Section 20(5) of the Act authorizes ICC, inter alia, to ". . . prescribe the forms of any and all accounts, records, and memoranda to be kept by carriers . . . including the accounts, records, and memoranda of the movement of traffic, as well as of the receipts and expenditures of moneys . . .". The ICC, purporting to find its authority in that section, on April 8, 1976, informally sought access to materials possessed by Southern at its Philadelphia office. The ICC request having been rejected by Southern, agents of the Commission, that same day, filed a Formal Demand for Examination of Records 1 then calling for the examination and inspection of all of Southern's "solicitation" files in that Philadelphia office.
Possibly intimating doubt as to the specificity concerning wanted materials, Southern on brief (page 5) tells us that ICC "apparently meant what Southern calls 'customer' and 'commodity' files." 2 Again, on brief (page 10) Southern tells us that to say that the ICC's inspection rights are limited is "not to deny the ICC's right to inspect any documents for which it has a legitimate need for regulatory purposes."
Southern has added that if the ICC special agents either orally or by formal demand will indicate which types of documents, required to be kept by the ICC regulations, are desired, Southern will produce all such documents for inspection together with an affidavit that all such documents in the files have been produced. 3
Against the background thus compendiously stated, Southern has submitted as the "ISSUE PRESENTED FOR REVIEW",
Whether under Section 20(5) of the Interstate Commerce Act the Interstate Commerce Commission has unlimited access to all documents maintained by a railroad.
The Commission on the other hand has defined the issue thus:
In our view the question presented is whether Southern Railway unlawfully refused to allow inspection by duly authorized agents of the Interstate Commerce Commission of its solicitation files in the railroad's Philadelphia office.
The respective parties largely have focused their attention upon this Court's opinion in Burlington Northern, Inc. v. Interstate Commerce Commission, 149 U.S.App.D.C. 176, 462 F.2d 280 (1972), rehearing en banc denied by an equally divided court, (further reference, infra ).
The district court here had denied Southern's motion for summary judgment and had granted the motion filed by the Commission. There had been no memorandum of decision, there were no findings, indeed, there had been no statement of conclusions of law. 4 We thus find ourselves relegated to consideration of the various affidavits and the memoranda filed by the parties in support of their respective motions.
Southern has insisted that Burlington Northern commands reversal here, with ultimately a judgment in Southern's favor. That is not so. 5
The Commission would not only distinguish Burlington Northern but has contended that Burlington Northern had been "wrongly decided." And that is not so, either.
The Commission when seeking certiorari following our denial of rehearing en banc in Burlington Northern stated for the Supreme Court that the question presented was:
Whether Section 20(5) of the Interstate Commerce Act (49 U.S.C. 20(5)), which empowers Interstate Commerce Commission to inspect "any and all accounts, books, records, memoranda, correspondence, and other documents" of railroads, covers only records relating to the maintenance of a uniform system of accounts and to the explanation or understanding of required accounting entries, and thus does not authorize the Commission to inspect budget forecasts of railroads.
The Court in its No. 72-6 denied the Commission's petition on October 10, 1972, Interstate Commerce Commission, et al. v. Burlington Northern, Inc., 409 U.S. 891, 93 S.Ct. 120, 34 L.Ed.2d 148. Justice Douglas alone recorded his willingness to have granted the writ.
The Commission's effort to secure further review having thus been denied, it now may prove helpful if we turn to the core of this court's opinion in Burlington Northern, Inc. v. I.C.C., supra, 149 U.S.App.D.C. at 182, 462 F.2d at 287-288, where we discussed the teaching of the Supreme Court in United States v. Louisville & Nashville Railroad Company, 236 U.S. 318, 335-336, 35 S.Ct. 363, 59 L.Ed. 598 (1915). We discerned the purpose of Section 20 to be
. . . to maintain a uniform accounting system and to permit the analysis and interpretation of records which are required to be kept by carriers. The Commission's access to memoranda and other materials in the possession of carriers must therefore be confined to circumstances in which the need for information relating to or explanatory of required accounting and bookkeeping entries is evident. The Commission's powers of inspection are focused upon facts and historical data as reflected in the records; they do not extend to projections or predictions of future events which have no apparent relevance to the understanding or evaluation of accounting and bookkeeping entries. (Emphasis added.) 6
It would seem clear, by now, that the Commission really has been insisting that it possesses a right derived from Section 20(5) to a complete and plenary search of Southern's records. Had the Commission been proceeding under 49 U.S.C. § 12, we would have had a distinctly different case. The scope of the Commission's authority in order to perform the duties and carry out the objects for which it exists is vast, indeed. But any such search would have been commenced by action of the Commission and so would not have stemmed from a decision by some "special agent." We would have construed its authority in light of the teaching of United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950), where Mr. Justice Jackson so admirably has spoken for the Court. Even there, it was recognized that some administrative agencies in their zeal may have proffered an investigative demand which is too indefinite and may have sought information not reasonably relevant to the execution of their proper function. The Court noted in Morton Salt, 338 U.S. at 653, 70 S.Ct. 357, that neither respondent had raised objection to the sweep of the order under consideration, had sought no modification, clarification or interpretation of it; neither, in short, had contested the terms of the order, and so had afforded the Federal Trade Commission no opportunity to provide reasonable modifications of the Commission's demands or otherwise to have presented a record which might have justified the Commission's position.
Here the record has not shown that the ICC had prescribed the forms of the "solicitation" files it sought. Nor has the record demonstrated to have been "unlawful" the maintenance by Southern of its "customer" or "commodity" files but it would seem not unreasonable for us to assume that such files were at least among those which the Commission sought to inspect. 7
Even so, in light of what we do know from the record, it is not enough to say that Southern must prevail because the Commission has been obdurate in its insistence upon plenary access to Southern's files without having specified its investigative purpose or without making its demand reasonably definite. 8 Conversely, it is not for us to say that the Commission is entitled to a judgment on the theory that Section 20(5) must be read to mean what the Commission would like us to say the language means. True enough, "The Commission may, in its discretion, prescribe the forms of any and all accounts . . ." but we are not shown that it has done so with respect to "solicitation" files.
We will not say that the Commission has not acted in good faith in its zeal here to carry out the function entrusted to it by the Congress, the authorization for which, even in the respects here at issue, clearly has been encompassed within the powers conferred by 49 U.S.C. § 12. Cf. Burlington Northern, Inc. v. I.C.C., supra. It well may be that when Congress unambiguously provided a recognized means by which the Commission might achieve its objective, see United States v. Morton Salt Co., supra, it sought otherwise to avoid complications which might result in unconstitutional conduct. 9 Surely we know well that an agency may not "bootstrap" its position by mere reiteration of its claim of authority. Compare FMC v. Seatrain Lines, Inc., 411 U.S. 726, 746, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973).
Our record discloses that when the respective motions for summary judgment came on for hearing the district judge and counsel for Southern engaged in colloquy relating to what might be the composition of solicitation files or records. The discussion seems not to have taken account of our holding in Burlington Northern, supra, wherein we ruled concerning the "circumstances" under which the Commission had been authorized to "prescribe" the forms of such detailed materials as are "required" to be kept by carriers. Rather, the district judge apparently was thinking in terms of search...
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