Kansas City Southern Railway Company v. Great Lakes Carbon Corporation

purpose recouping the amount re- employees funded. Former entitled to be sent

reimbursement —Notice should

registered mail to the last known address of eligible

each employee. former notice application

should indicate that the written

for reimbursement of the assessment $40 may

without interest be made within 60

days from the date the notice was mailed. notice

Such also indicate that if reim- claimed,

bursement the union insti- legal

tute action to establish the former

employee’s legal liability to the union for

the amount reimbursed. company argues it should jointly severally be held liable for

the reimbursement and at most should be

considered How secondarily liable.

ever, the the option imposing Board has

joint liability and several where both union company violate the NLRA. Co.,

NLRB v. Campbell Soup Furthermore, bargaining agreement

collective contains an

indemnification clause which will effective

ly shift obligation the entire reimbursement

to the union.

The enforcement of the order of the Board will be with the modifica- Ross, Judge, a concurring Circuit filed tions indicated herein. opinion.

McMillian, Judge, Circuit filed a dis- senting opinion.

Bright, Judge, joined Circuit in Circuit Judge opinion McMillian’s dissent and filed Heaney, joined. in which KANSAS CITY RAILWAY SOUTHERN COMPANY, Appellant,

GREAT LAKES CARBON CORPORA-

TION, Appellee.

No. 79-1075. Appeals, Court of

Eighth Circuit.

Submitted Jan.

Decided June

(cid:127) LAY, HEANEY, Before Chief BRIGHT, STEPHENSON, ROSS, HEN- McMILLIAN, Judges, LEY and En banc.

LAY, Judge. Chief In an earlier decision this court over- turned district court’s of Kansas denial City Company’s (Railway Southern Railway Co.), judgment motion to set under aside of the Federal Rules of Civil City Procedure. Kansas Railway Southern Corp., September v. Great Lakes Carbon A rehearing granted, 1979. motion for argument this decision follows court en banc. Railway originally Co. sued Great Corporation, (GLC),

Lakes Carbon for addi- freight charges, claiming tional it had un- dercharged higher, specific GLC because a commodity rate apply petroleum coke that shipped. urged GLC GLC a lower freight-all-kinds applied. rate It also coun- overcharges terclaimed for ship- on another motion, parties’ joint ment. On the interpretation district court referred of tar- iff items and their reasonableness to the Commission, (ICC), Interstate Commerce abeyance. held the lawsuit in The ICC judge’s affirmed an administrative law de- generally the Railway cision that sustained However, interpretation. Co.’s tariff it unjust held it would be and unreasonable for the Railway Co. to collect full tariff for the shipment upon complaint which its decision, was based. Under the ICC Railway would have recovered a re- Co. duced amount and GLC would not have anything recovered on its counterclaim. summary judg- Each then filed for ment in the district court. The court en- Railway tered Co. on its $29,898.32 interest, complaint plus Mo., Dreiling, City, However, Robert K. Kansas accord with the ICC decision. Emde, appellant; Armstrong, John P. Teas- the court held it was not bound the ICC dale, Louis, Mo., decision, Vaughan, Kramer on St. and therefore GLC’s mo- brief. tion for on its counter- summary judgment claim, on its behalf for entering judgment Loos, Loos, Dickinson R. Ballard & Wash- $129,026.47 plus interest. D.C., ington, appellee; G. Carroll Stri- Dalton, Louis, Mo., bling appeal and W. did not within 30 Railway W. St. days 4(a) brief. the Federal required by Rule Procedure. After decision Appellate affirming Rules of and enters of time was motion for an extension district court. attempted it to resurrect assume, appeal In this we without decid- this court for a writ appeal by petitioning ing, that under facts of mandamus that would order presented the required United States was summary to rule on its motion for joined pursuant defendant petition, judgment. We dismissed the stat- 28 2322 once sought GLC review of Railway motion for sum- ing that the Co.’s the ICC decision summary motion for mary judgment as to GLC’s counterclaim judgment. The question fundamental upon been ruled and we viewed the had presented 60(b)(4)1 here is whether Rule petition attempt untimely as an to file may procedural serve as the vehicle to at- City Railway Kansas appeal. Southern tack the judgment ground on the that it is a (8th 1978) Wangelin, 582 F.2d 1288 Cir. nullity because of the absence of the United (mem.). States. Railway The then a motion Co. filed Bowman, In Schwartz 244 court, asserting that under Rule 51, F.Supp. (S.D.N.Y.1965), aff’d sub 60(b)(4) of the Federal Rules of Civil Proce- Annenberg nom. Alleghany Corp., 360 judgment dure the be set aside (2d Cir.) F.2d (per curiam), denied, 211 cert. argued void. It the district court lacked 921, 230, 385 U.S. subject matter because it did (1966), the court held an ICC order could procedure not follow the chap- set forth in indirectly not be attacked under the Invest 28, ter 157 of title sections 1940, ment Company Act of joinder

review of an namely seq.; 80a-l et it chapter held 157 of title defendant. 28 Urgent Act, Deficiencies is the ex 2322. The district court denied clusive method relief, for enforcement stating it or review had considered the basic of ICC orders. As issues the claim had opinion, raised in its earlier not been from appeal Urgent which no under the had been taken. The Rail- Deficiencies Act way appealed, and none of panel procedural requirements this court its court, met, reversed the district holding including joinder inter had been of the Unit alia, original that judgment was ed jurisdic void the court it held lacked and could be set aside under Rule tion. This holding only serves to obscure acting en banc now vacates that question presented in appeal.2 this As- Co., 1. Fed.R.Civ.P. reads as (7th 1975), follows: 518 F.2d 1265 n.26 Cir. (b) Mistakes; denied, Inadvertence; cert. 423 U.S. Excusable Neglect; Newly Evidence; Fraud, (1976); Knowles, Discovered L.Ed.2d 103 Moore v. upon etc. On motion and (5th 1973); terms as are F.2d Cir. Warner v. First just, legal relieve a or his Bank, (8th Cir.), Nat. 236 F.2d cert. representative judgment, from a final denied, 352 U.S. 1 L.Ed.2d following reasons: . . (1956); Dyer Stauffer, (6th 19 F.2d 922 void; is . Cir.), (1927); Agrashell Composition L.Ed. 421 Inc. v. 2. The court did not hold that the United States Co., (S.D.N.Y. Materials indispensable F.R.D. party, was an nor that its ab- Miller, Wright deprived jurisdiction. 7 C. A. sence alone Federal Prac the court of tice and Procedure § 1611 at Even if the United States is deemed an indis- (1972); pensable party, 3A Moore’s Federal juris- Practice 19.04[2] absence not be a f (2d 1979). dictional & 19.19 at 345 ed. defect. Some These authori cases have used lan- fl guage indicating rely nonjoinder upon history indispensable dismissal for ties of an of the indispensable party jur- equity is emphasis dismissal for lack of doctrine in on See, e.g., Agrashell, isdiction. equitable Inc. v. Ham- considerations Fed.R.Civ.P. Co., (8th mons Prods. 352 F.2d Cir. reasoning may persuasive This be less when 1965). weight authority against is joinder party requirement imposed by See, e.g., Hinde, characterization. Mallow v. statutory grant jurisdiction. See Noland v. (12 Wheat.) 6 L.Ed. Comm’n, United States Civil Service Shaheen, Clarkson Co. v. 1976); Tryforos v. Icarian Dev. suming the district court erred here in find- 453 F.2d at 649. federal Since courts have ing jurisdiction despite the of the “jurisdiction absence jurisdiction,” to determine States,3 question is, “power to interpret language error, hinges relief is whether that never appli instrument and its presented appeal judgment, court,” cation to an issue Stoll v. may nevertheless be corrected in a Rule Gottlieb, 305 U.S. at 60(b)(4) proceeding ground on the it interpreting error in statutory grant renders the void. We conclude equivalent acting is not is not void within the total want of an errone Such meaning 60(b)(4), any jurisdic- of Rule interpretation ous the judg does not render by nonjoinder tional defect caused may not ment a complete nullity. Chicot Coun now challenged.4 ty Drainage Bank, District v. Baxter State 371, 376-77, 317, 319-320, jurisdic Absence of (1940); Moore’s, supra ¶ cases, may, in certain judg render a 60.-25[2],at judgment, op 296-97. A void as Feuerstein, ment void. e.g., See Kalb v. 308 posed one, to an erroneous is one which 433, 343, (1940). 60 84 L.Ed. 370 inception from its was legally ineffective. However, only this occurs where there is a Carolina, See Williams v. North 325 U.S. plain usurpation power, when a court 226, 1092, (1945); wrongfully jurisdiction extends its beyond 701, Gilligan, (6th v. Jordan 500 F.2d 710 the scope authority. Gottlieb, of its Stoll v. 1974), 991, Cir. 421 95 305 59 83 L.Ed. 1996, (1975); 44 L.Ed.2d 481 Lubben 104 see Coalition of Black Leader System, v. Selective Service 453 F.2d at Cianci, ship 12, (1st 1978) 570 F.2d Cir. 649; Moore’s, supra ¶ 60.25[2].5 (quoting Lubben v. Sys Selective Service ease, present assuming In the even tem, (1st 1972)); 453 F.2d Cir. Ben construing district court its statu- erred in Co., Sager Chemicals v. E. Targosz & tory grant authority by joining (7th 1977); F.2d 7 Moore’s Cir. States, jurisdictional we such hold Federal Practice at 302-3 ed. 160.25[2] judgment error does not render the void 1979). way, plain Stated another usur 60(b)(4). within the meaning of Rule pation power occurs when there is a jurisdiction” “total want of distinguished We reach this conclusion because the from “an jurisdic error in the exercise of power court was vested with to deal with tion.” System, Lubben v. type acquired jurisdic- Selective Service of case and had relief, granting void, judgment the district court not is not but rather rests implicitly determination, had to jurisdictional decide whether the United erroneous Rule necessary indispensable party States was a properly is not invoked to extend time under 28 U.S.C. but also §§ whether appeal id.; already expired. that has See the ICC order was in effect one for Celebrezze, (8th Hoffman v. 405 F.2d money, statutorily exempted which would be 1969). Cir. requirement joinder of the United 2321(b), join- and whether concept judgment extremely 5. The of a void necessary der was not because the ICC order V.T.A., Airco, Inc., limited. Inc. v. 597 F.2d advisory only. was (10th 1979); Cir. Coalition of Black statutory exemption We note that from Cianci, Leadership (1st 570 F.2d Cir. procedures, §§ section 1978) (quoting Sys Lubben v. Selective Service 2321(b), encompass does not GLC’s motion for tem, (1st 1972)); 453 F.2d Cir. Ben summary judgment on its counterclaim. GLC Co., Sager Targosz Chemicals v. E. 560 F.2d sought to avoid the effect of the ICC (7th 1977). Cir. Professor Moore indi 2321(b) applies only section to actions that, concept narrowly cates the is so restricted in district court to enforce an ICC although seemingly incongruous, a federal order. court is almost never void because of 60(b) It is subject basic that Fed.R.Civ.P. is not a lack of federal matter appeal. Moore’s, substitute for supra 60.25[2], Horace v. St. Louis S.W. at 305-06. fl 489 F.2d If a itself is inval- gressed, or the statute It is clear before it.6 parties

tion over id, is still one question jurisdiction jurisdic- original court had that the district determination. Railway Co.’s tion to decide GLC’s and 1337(a); it also under 28 U.S.C. claims v. Baxter County Drainage District Chicot to review the ICC jurisdiction Bank, had State upon referral under entered had over 1336(b).7 It circumstances, Under accordingly subject general matter Rule may not be vacated under whether could decide Education, Board of Marshall nonjoinder its joined and whether should be (3rd Black Coalition assuming Even defect. Cianci, (by F.2d at 15-16 Leadership v. no erred, error has court v. E. Sager Chemicals implication); Ben issues. power those bearing 812; decide Co., cf. Jackson Targosz & Co., Irving Trust decided implicitly The district aside, (motion to set L.Ed. 297 States, a joinder of the United whether 60(b)(4)). promulgation of prior for review under prerequisite setting policies are at stake 2321(a), required Competing for it to was also §§ federal void 1336(b). aside a an order under 28 U.S.C. § jurisdiction: obser- lack of case and type over the With jurisdiction and of limits on federal vation enter a parties, the court could over the are final. How- judgments need so, doing money damages. judgment for ever, is to an erroneous challenge when jurisdic- it whether it had could determine grant juris- statutory of of interpretation a the parties’ tion to entertain motions appealed, the is not diction and purpose this summary judgment and for final, policy favoring becoming the thus under apply and statutes construe the certainty of controver- resolution An grant relief. requested which it was to prevails. sies and interpretation erroneous decision on the 1336(b) and panel opinion of and is ordered vacated applicability sections affirmed. As district court deprive power it of to decide. would not has Supreme Court stated: concurring. ROSS, Circuit jurisdic- as to Whatever contention be, majority opinion the bound- in the not whether it is that I concur therein, but also for trans- the reasons stated aries of a valid statute have been See, Drainage proven e.g., County v. will exercise its Dist. must be before a court Chicot Bank, upon jurisdiction, Baxter State turns the dis- voidness often (1940) (federal jurisdictional that was 84 L.Ed. 329 statute facts between tinction essential subsequently unconstitu basis for decree tional, ruled process location of the as service of jurisdiction over nevertheless court has res, quasi-jurisdictional facts such diver- jurisdic parties pass implicitly and could on its sity controversy. citizenship of or amount the claim or statute’s constitutionali tion over ty, R.R., Logging River See Noble Union holding erroneous); Stoll v. even if its were L.Ed. Gottlieb, see, e.g., v. Selective Lubben Ser- (1938) (no jurisdiction in federal 83 L.Ed. 104 (1st System, vice F.2d subject bankruptcy over matter of White, Independence Mortgage Trust jurisdiction parties nevertheless court with of subject (D.Or.1978). F.Supp. 120 Federal mat- erroneously was); Marshall could decide there findings jurisdiction upon quasi- of ter turns Educ., (3d Board F.2d Moore’s, supra jurisdictional 60.- facts. fl 1978) (application defend to certain statute 25[2], at 307 n.59. unconstitutional, to be neverthe ants later held judgment was not the court had less void since assumes, jurisdictional latter basis al- 7. This issue); jurisdiction erroneously pass to on the here, though we do decide the issue not Moore’s, supra 60.25[2], ed. ¶ at 302 reviewing an ICC district court was juris- subject matter determination of Often acting realm of than its own rather jurisdictional finding rests diction original the benefit an ICC than, case, fact, construing as in rather advisory opinion. statutory grant facts óf When general analysis to the set my opinion the tinue to adhere additional reason. In an therefore indispensable par- decision and panel was not an forth in the United States of the case portion the counterclaim dissent. ty to 2321-23, and therefore

under 28 U.S.C. §§ relief under Rule To the extent jurisdictional as indi- there was no defect the doctrine of enables a to evade panel decision. cated ap effect to in finality judgments not, I required by judgment, The counterclaim was peal a final indirectly from enjoin proceeding section “a to think this is the function of * * * rule, suspend regulation or or- view, of the district my der of the Interstate Commerce Commis- is void for lack * * * or “an to enforce because, sion” from the apparent as is any order of the Interstate Commerce Com- record, face of the the United States mission.” Rather it was an action “for not a below. proceedings money” specifically case, which is join to present the failure exempted of section de is a “fatal” United States involved, Bowman, If section 2321 is not then See Schwartz v. fect. by its terms section 2322 is not involved aff’d sub (S.D.N.Y.1965), F.Supp. join necessary either and it was not Annenberg Alleghany Corp., nom. party. United States as a I believe that 28 (2d Cir.) curiam), F.2d 211 (per apply 2321-23 was meant U.S.C. §§

appeals to our court from an order of the Bal citing Lambert Run Coal Co. v. (1966), appeals to our court from a timore & Ohio involving district court case an action “for money.” have made a been party because the action was a direct re

MeMILLIAN, Judge, dissenting. suspend view to set aside or carefully considering After majority order of the Interstate Commerce Commis opinion concurring opinion, (ICC) 17(10)1 I con- sion under of the Interstate 17(10) provides: 1. 49 U.S.C. § In 1976 and a new this section was renumbered 17(9) providing decisions, etc., upon was added new administra- § Judicial relief from deni- hearing procedures. disposition application tive and review Act of al or other for 94-210, 303(a), rehearing Feb. Pub.L. No. § etc. application rehearing, reargu- When an Stat. 48. In the Revised Interstate Commerce ment, decision, 17(10) any (see infra) or reconsideration of or- Act note 2 is now § § der, division, requirement provides: or of a an individu- Commission, respect proceedings al any or a board with Judicial review—nonrail enforce, enjoin, suspend, matter or referred to him or it have A civil action to shall denied, been made and shall have been or or set aside an action of Interstate Com- division, by rehearing, reargument, after merce taken a indi- or reconsidera- Commission Commissioner, board, of, disposed by employee tion otherwise vidual or Commis- division, appellate employee delegated sion or an a suit to en- to act under section force, enjoin, may suspend, in a or set aside such a this title be started court of decision, order, requirement, only— or in whole or the United States (1) part, may brought application in an for rehear- be in a court of the denial of reconsideration; ing, reargument, or or States under those of law enforce, (2) applicable application granted, if of suits to after a case enjoin, suspend, rehearing, reargument, reconsideration or or set aside orders of Commission, disposition by other or an but not otherwise. the Commission formerly 17(9) appellate 10323 of this This section was numbered division under section § and was added to the Interstate Commerce Act title. (added Transportation 17(9) in 1940 Act of ch. 49 U.S.C. New § § 10325. Supreme 1976) is § 54 Stat. 916. The Court now 49 U.S.C. 10327. § 17(9) “basically provi- clarity, characterized this For I shall refer to a former § section as (new 17(10) requiring at 49 sion exhaustion of administrative action and now codified § 10325) prior a direct review § remedies to resort to the courts.” ICC v. U.S.C. R.R., infra, 16(2) (now Atlantic Line 383 U.S. 576 at and a codified at § Coast 11705) action. 583 n. 86 S.Ct. 1000 at 16 L.Ed.2d 109. as an enforcement § enforce, enjoin, be sus Act, 17(10), may as re- suit 49 U.S.C. § Commerce decision, aside pend, or set the Commission § codified2 at and vised Atlantic, supra, reparation requirement.” enforce or an action to not Act, 582-83, (foot 16(2)3 of the at 1005 under at § award at see South omitted); and codified 16(2), as revised note § Line v. Atlantic Coast See ICC 1966), (5th Ry., ern § 576, 579-89, 1479, 18 1003-08, 1015-18, L.Ed.2d 109 Ry. v. United Southern L.Ed.2d 592 Atlantic). (hereinafter n. 31 F.Supp. 1134-35 & Lines, Bus Inc. but see Resort (D.D.C.1976); matter, I note that preliminary As a (S.D.N. F.Supp. 745 & n. 6 had have however, 17(9) Y.1967). suggests, New § is, reason, failure to ex- for another may not petition that a reconsideration appears It remedies. administrative haust proceedi carrier necessary, at least in rail shipper record that neither petitions because for reconsideration ngs,4 (KCS) petition filed a (GLC) nor the carrier upon essentially discretionary and based are the ICC. Denial reconsideration before evidence, error, material new allegations of timely petition for disposition other of a or circumstances, 49 substantially changed or be a reconsideration well (now and recodi 17(9)(g) revised U.S.C. § in a direct prerequisite review 10327(g)). at 49 U.S.C. fied 17(9) § proceeding. “Section [renum- Practice, 1100.- 49 C.F.R. § Rules 17(10), General as § bered recodified 10325] 98) (Rail appellate procedures, provides application after Appen (1979) (also reprinted in 49 U.S.C.A. rehearing, reargument, reconsideration of, disposed dix). has been denied or otherwise

2. The Interstate 2d Sess. tive and recodified and recodification was not intended any Code Pub.L. No. some of the S. F. Chicago 1979), citing substantive history Ry., Cong. & 9-10, reprinted 1, 4, N. W. 95— clearly H.R.Rep. No. Act’s archaic Admin.News, changes Commerce Transp. the Act of Oct. 92 Stat. 1337. indicates but Co. v. 1222 n. 1 language. Act was revised that the revision pp. Atchison, to modernize ^[1978] 95th legisla- Cong., E. make T. g., & 4. 49 U.S.C. § at 49 U.S.C. therein vail ney’s his shall suit the shall be of the the costs of the appeal. he shall be not be fee, nor for proceedings stated, findings prima to be 17(9)(h) (now revised and codified If 10327(i)) provides: liable costs taxed and facie evidence of and order allowed suit. plaintiff unless for costs in the district at except any subsequent stage a reasonable attor- collected as a of the commission they shall accrue finally pre- the facts plaintiff part Notwithstanding provision any other 16(2) (now 3. 49 U.S.C. revised and codified Act, decision, order, any requirement 11705) provides: 49 U.S.C. § Commission, duly designated of the or of a Proceedings orders; in courts to enforce thereof, shall final on the date division be costs; attorney’s fees. If a carrier does not enforce, it is served. A action to which civil comply with an order for the of enjoin, suspend, a decision or set aside such money within the time limit in such part, requirement, in or in whole or complainant, any person the or whose brought in a court after such date made, may benefit such in order was file the pursuant States to the the United district court of the United States for the applicable which are suits to en- of law district in which he resides or in which is force, enjoin, suspend, aside orders of or set principal operating located the office of the Commission. carrier, through which the road of the 10327(i) provides: 49 U.S.C. § runs, any general carrier or in state court of subtitle, Notwithstanding an action of this parties, jurisdiction having jurisdiction of the and an the Commission under this section complaint briefly setting a forth causes designated action of a division under subsec- damages, for which he claims order (c) final on the date on tion section is premises. of the commission in the Such suit served, it is a civil action to en- in the district court of the United States shall force, enjoin, suspend, aside the action or set proceed respects in all like other civil suits after be filed that date. damages, except trial of that on the

829 view, however, shipper’s court was the agree my I the district mo summary judgment, which was appropriate in which to review the issue was basically ment of money ral by the concurring opinion, the ICC order at enforce, enjoin, the ICC. E. ence of such issues to the Commission has per exclusive trine. 28 district court correctly referred the issues to Pacific carrier to recover 2d Sess. ed the amendment court as the ferrals (1967); Pennsylvania R.R. v. United Because the action raised 161, 164-65, Cong. 1254-55 States, Southern Pacific tic, supra, 383 United Commission order filed a counterclaim for primary jurisdiction . 202, 205, initially (1960) (the holding occurs, of the ICC at under the States, 181 see also . States, (1974); Admin.News, U.S.C. § 2 reprinted . McLean Ct.Cl. to review ICC orders .” filed referring g., U.S. 205 and as such S.Rep. suspend, set 1004. In 449 F.2d Atlantic, S.Ct. Keller United States Western primary jurisdiction 1336(b); Ct.Cl. undercharges; at arising Transportation an order for the Trucking Co. v. United 580, 1131, 1133, No. issue. The district in ordering 59, 63-64, court has exclusive in this case p. any Industries, addition, supra, of the questions 86 S.Ct. at ^[1964] out see, aside, civil action to 505 F.2d court by overcharges. 166-67 e. Atlan- States, 383 U.S. at 88th the refer- 4 L.Ed.2d g., ICC, U.S.Code from re- Compare or annul as noted prompt- “When Inc. within Cong., refer- 1004; judi- S.Ct. ship- pay- doc- v. v. dural 49 U.S.C. § review actions be reparations per as a direct review though both involve “orders ment of enforcement action is critical money are at Atlantic, L.Ed. 661 forcement under at tion, a that the enforcement of orders the extent of the shipments ceeding was available 1007; demanded). modified which to base an enforcement action to set aside the ICC order S.Ct. West Coast reparations The characterization of the action Brady, 288 U.S. adequacy of cannot see at requirements, proceedings L.Ed. 888 Act), money,” only (under 1007, citing by the district higher specific Atlantic, supra, 383 (1954). at issue or an action brought as the carrier recovered less than it Line, review and have 16(2); award challenge In either and not in an action for en award, S.Ct. old at 1006. ICC, § supra, 448, 457-58, Atlantic, supra, 383 U.S. 16(2). In the absence § are distinct at in a direct review in an enforcement ac U.S. Baltimore & Ohio R.R. were reparations there 17(9) ordinary civil actions. case, judicial particular ICC, supra, court, commodity 16(2) actions for the against D. L. Piazza Co. v. at applicable or new is nothing upon adequacy contrast, special proce- was either an for the because, al- proceedings and not an and a challenging action, award that such at S.Ct. rates, § S.Ct. finding review direct below 17(10) Cir.), ship pay- U.S. pro see (to at cial review by the district court. 28 U.S.C. injunc- Originally, U.S.C. § 1336(a);5 United States three-judge district required tive relief 93 L.Ed. 1451 court, with direct 28 U.S.C. § (1949); Aluminum America v. Co. of United 28 U.S.C. Supreme to the Court under States, (D.C.Cir. However, 1269-70 were re- 1253. 2324-25 §§ § 1977) (per curiam). pealed in Act of Jan. § Commission, enjoin suspend, 1336(a) provides: in 5. 28 U.S.C. and to or § part, any in order of the Interstate whole or by Except provided as otherwise Act of Con- payment of Commission for the Commerce gress, jurisdic- the district courts shall have fines, money penalties, the or collection of enforce, any of civil to in action whole or and forfeitures. part, any in Interstate order of the Commerce action in in an order the Commission’s 93-584, judi- and No. 88 Stat. Pub.L. the nor Unit- the Commission which neither than for the of other review orders cial Atlantic, supra, 383 party.” is a ed States enforce orders money of or to ICC payment 1014. 86 S.Ct. at U.S. at appeal, like review in the courts of is now of cretionary (writ of Review erally Sess. Department Admin.News, other administrative Supreme Court. H.R.Rep. Act of 1950 reprinted in certiorari), 2341 et review of Justice). No. pp. by writ of certiorari 93-1569, (Hobbs ^[1974] agencies, 7034-36 U.S.C. U.S.Code Act)); 93d seq. (Judicial Cong., (report §§ see Cong. gen- dis- 1st of in the Atlantic of ing ment. tion to set of action ceeding as a cross-action money, I note that the money a carrier to response to enforce In that case the ICC aside an order for case addressed to bring be treated the an order for argument a direct Supreme Court a similar exactly like an resisted allow- the review that an ac- shipper’s payment payment argu- pro- in was, argued my in action. The ICC that opinion, enforcement below “reparation past rates are proceeding respecting to review an ad- orders review direct to general importance re- The fact that the not of sufficient reparations order. verse quire States relating by was one their defense the United under attack ICC order Commission, the direct review and thus in sub- and money of payment regard- proceeding permitted should not be money meant payment one for the stance brought.” in less which it is public of sufficient the order was “not Atlantic, judi- supra, 383 at 86 S.Ct. at justify the accelerated importance to Supreme 1017. The Court stated procedure three-judge dis- review cial [the Congress not the view of by apparently court and direct review Su- trict ICC, and the 1964 amendments which su- cited States preme United Court].” venue of the direct placed jurisdiction and at 1419. pra, 337 U.S. at following reference to “Thus, set out in 28 review though procedures jurisdiction doc- primary under the ed.) gov- otherwise (1964 U.S.C. §§ court, 28 referring trine in the U.S.C. such or- 17(9) proceedings to review ern § 1398(b), referring 1336(b), ders, and applicable §§ 2325 is not § original action. an incident of the single judge.” At- not as adjudicated by a 605-06, 86 Atlantic, at lantic, supra, at supra, Thus, direct review an action for three- at 1017. provision requiring 1007. brought must be (now repealed, see dis- of an ICC judge district court States, may involve an against the United supra) apply not cussion does money.” Appar- orders, payment of order “for the reparations review of adverse but an order for ently to enforce provisions, including requir- actions the other 16(2) against money pursuant § ing brought the action be the Unit- States, Moreover, require the United are a re- of the Act do not applicable. ed formally to the action.6 viewing “may not set aside 2321(a). Atlantic, language generally supra, Congress” 6. § 28 U.S.C. 383 U.S. at actions); 605-06, (referral 1336(a), 1336(b) 86 S.Ct. at 1017. U.S.C. §§ ICC, view, supra, pay- my orders see States v. actions to enforce for the also United (direct money brought the district ment of are courts, any single- 1336(a), reparations other civil order before U.S.C. adverse action, 16(2); court). judge the United States action must be Such an However, States, party. by against brought not be made actions need or orders, non-payment although properly 2321(a), Finally, set enforce actions to §§ courts, brought brought non-money properly in the district orders are aside against 1336(a), brought against appeals must be the courts States, 2321(b), 2321(a), Ac- §§ un- 28 U.S.C. §§ underlying tions to set aside orders was referred to the less the money are in the district court and referring court has ex- case in which appeals; within such actions fall 1336(b). the courts U.S.C. § clusive “Except provided by Act of otherwise Court, the Supreme question. As noted stat- Neither called the court’s controlling availability sections, utory statutory attention to the relevant case are “an review in this his- district court §§ patchwork subject more than one torical apparently assumed it could overturn the Atlantic, supra, 383 interpretation.” I ruling. nothing Commission’s find in the 4,n. n. 4. at 586 86 S.Ct. at 1007 Nonethe- record show that district court con- less, proceeding because the below was a possessed jurisdiction sidered whether it direct review set aside an ICC solely overrule the on the ship- Commission money for the payment and as such per’s motion. jurisdictional issue did brought against have been Unit- not surface Railway until the not, ed but was I would find that its motion for relief from void the district court jur- lacked under Fed.R.Civ.P. The district isdiction and would reverse the denial of court then juris- should have corrected its the Rule motion. dictional error the motion. I, Accordingly, too, would reverse. BRIGHT, Judge, joining Circuit in the dissent. HEANEY, joins join in Judge I McMillian’s dissent. Judge Bright’s dissent. expressed in views When the case was returned to the district court, the shipper for a summary moved counterclaim, seeking its

construction of the tariff inconsistent with ruling. Commission’s trig- That motion

gered the statutory procedures for review

of an require joined.

United States be (1976). The preclude a statutes federal MISCELLANEOUS DRIVERS AND tri- judge UNION, al from making a tariff HELPERS LOCAL NO. af interpreta- tion without complying procedures filiated with International Brotherhood Teamsters, Chauffeurs, by Congress; thus, mandated ruling Warehouse America, Petitioner, amounts to a nullity. Helpers men and Bowman, In Schwartz v. 244 F.Supp. 51 (S.D.N.Y.1965), aff’d Annenberg sub nom. NATIONAL LABOR RELATIONS Alleghany Corp., Cir.) BOARD, Respondent, curiam), (per 230, 17 (1966), L.Ed.2d 145 O’Sullivan, Muckle, Mortuary, Kron appropriately observed: Intervenor-Respondent. it can If extrinsically established No. 79-1954. practical effect of success on the mer- Appeals, Court of States by the party making a claim would be Eighth Circuit. to invalidate the [ICC] [28 applies requirements and its must 2322] Submitted June (citations be met. omitted).] [Id. 17, 1980. Decided June

The absence of the “a fatal defect.” Id. at Thus, was void. Moreover, nothing I find in the record indicates that court ex-

pressly or impliedly determination made

that it had to overrule the Com- construing

mission’s order tariff

Case Details

Case Name: Kansas City Southern Railway Company v. Great Lakes Carbon Corporation

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 16, 1980

Citation: 624 F.2d 822

Docket Number: 79-1075

Court Abbreviation: 8th Cir.