Luckenbach Steamship Company v. United States

6Q5 LUCKENBACH STEAMSHIP COM- Plaintiff, PANY, Inc., America UNITED STATES of Company,

Baltimore Railroad and Ohio Chicago, Rail- Rock and Pacific Island Company, road Denver and Rio Grande Pennsylva- Company, Railroad Western Company, Reading nia Railroad pany, Company, Southern Pacific Toledo, Peoria Railroad Western & Company, Defendants.

Civ. A. No. 2144.

United States District Court

D. Delaware.

Dec.

€06

Schlefer, Cunningham John and Israel Washing- Fort, Convisser of Kominers & ton, C., plaintiff. D. for Atty., Hagner, Leonard G. Dist. U. S. Bicks, Wilmington, Del., Act A. Robert Atty. Gen., D. Asst. and John H. Wigger, Atty., Justice, Dept. Wash ington, C., defendant, D. for United States. Counsel, Ginnane, I.C.

Robert W. Gen. Garson, C. and H. Neil Associate Gen. Counsel, Washington, C., I.C.C.; for D. Interstate Commerce Commission. Henry Hor William S. Potter and R. sey, Berl, Anderson, Potter & Wil mington, Del., Jeremiah C. Waterman Washington, Reidy, D. and Edward M. C., Baltimore, Armstrong, Andrew C. Md., Burkett, Jr., Fran and Charles San cisco, Cal., for above-listed Railroad de fendants. Baltimore, Gillan, Jr.,

Charles McD. Md., intervenor, Ports for North Atlantic Conference. Finger Veasey Aaron and E. Norman Wilming- Richards, Layton Finger, &

ton, Del., Alvin J. Rockwell and Willis Deming Phleger Brobeck, R. & Har- Washing- Cal., rison, Francisco, San ton, C., intervenor, for Ameri- D. Pacific Steamship Ass’n. can Wilmington, Del., Daley, John P. Negus Raymond Negus, A. of Cake & Washington, C., intervenors, D. Assn., Canners and Freezers Northwest League Inc., and Canners Calif. Prickett, Sr., and William William Prickett, Jr., Prickett, of Prickett & Wil- defendants, mington, Del., for Baltimore Co., Reading Ohio Railroad Co. & BIGGS, Judge, Circuit Before RODNEY, District WRIGHT Judges. WRIGHT, Judge. M. District CALEB injunction This initiated Steamship plaintiff, Luckenbach (Luckenbach) against pany, Inc. railroads, and certain States “(1) enjoin, aside, annul, set S. Samuel Arsht and Andrew B. Kirk- seeks: Jr., Morris, patrick, Nichols, suspend or rescind the action Arsht & Tunnell, Wilmington, Del., Interstate Commérce Mark P. of the cost. rail rate below [United an States], denying of said defendant Luckenbach, Apart petition its effect on substantially present railroad railroad reduce of certain large being revenues now earned on the published Octo- effective to become goods moving by rail. volume of “(2) canned 23, 1959”, ber to direct and through deprive The reduced rail rate either States] said defendant [United suspend Luckenbach of agency its backbone traffic its to cost, point force its and rates;” di- rate to a below operation to and of said drive the of the railroads, “parties to more efficientcarrier out rect the defendant trade, exposing public doing rail to later rates, such continuing to refrain from and/or things rate increases. The railroads have ex- herein the actions and pressly monopo- designed limited the reduction to a complained of, (1) rate to year goods term of one at the end of which the transportation lize the of canned present automatically re- origins rate will Atlantic to Pacific coast in- plain- stored. The Commission (2) ordered an coast to drive destinations and vestigation, placing upon thus the rail- tiff from the business.”1 sustaining roads the burden of it. But 1959the District On October investigation be, in the- could restraining temporary issued a light injury Luckenbach, prob- of the to staying the action of the Interstate ably would be nullified failure to- deny- merce Commission (Comnpssion) suspend if, upon the rate. For conclu- plaintiff’s petition investigation, sion of the the Commis- ordering suspend the to sion should that the rate was un- find Thereafter, proposed a three- rail rate. lawful,- the elimination of Luckenbach statutory pur- judge court was convened might permanent from the trade make 2325 and 2284. suant to 28 U.S.C.A. §§ and irremediable the interim violation alleged pro- under the Jurisdiction is Policy Transportation National and' 1336-1337, of 28 U.S.C.A. visions §§ Anti-Trust Act. The Com- Sherman 2321-2325; 10 of 2284 and Section suspend mission’s failure to was incon- (5Act U. the Administrative Procedure investigation. sistent with order of 1009); 1, 2 and 3 of the Sections S.C.A. § compounded This was its silence as to 3); (15 1, 2, Act U.S.C.A. Sherman §§ its reasons. Clayton and Sections 22, 26). (15 U.S.C.A. asserts that the immediate §§ Plaintiff permitting consequences in The matters now before the court are effective rate to become would be: interlocutory plaintiff’s for an in- rail motion “(1) and frustrate to violate the man junction and defendants’ motion to dis- Transportation- the National date and dissolve the tem- miss porary preceding 1; (2) Policy, 49 U.S.C. to- restraining order. Anti-Trust Act un the Sherman violate allegations The essential Georgia of [State of] der the doctrine complaint and amendment thereof R., Pennsylvania R. U.S. S. [65 dismissal defendants’ motion which (1945); (3) 89 L.Ed. 1051] Ct. may be summarized as fol- addressed subject Luckenbach, major water lows:2 jurisdic the Commission’s under carrier tion, general cargo Luckenbach, the immediate, incalculable ir trade, in the intercoastal is the carrier injury.” reparable goods. of canned carrier Its low cost traffic, have moved for dis- without The defendants which it can- on this ground exist, fully plus that this court is missal on the covers cost a return. Restraining plaint Complaint. and Dissolve Order 1. pages at 2-4. Support Mo- Brief Luckenbach’s Interlocutory Injunction Ibid., p. In tion Opposition Dismiss Com- to Motion to beyond a Commis- than seven the time without review months opera- go suspend sion when it into ef- decision not would otherwise ** fect; tion of rate tariffs. new urges 10(e) of Plaintiff Section Pro- Section 10 of the Administrative Act4 Procedure the Administrative provides part: cedure Act6 plainly jurisdiction on the court confers “Except (1) pre- so far as statutes failure the Commission’s review clude review or under to do as it is authorized action is law committed 15(7) Interstate Com- Section (c) discretion Act,5 portion of which material merce Every agency action made review- follows: reads as by agen- every able statute and final “(7) filed there shall be Whenever cy action for which there is no other any schedule the Commission adequate remedy any court shall joint stating or individual a new * subject judicial review any fare, charge, new rate, or or classification, joint or or individual wording The of the Administra regula- joint or new individual apparently tive Procedure Act makes rate, affecting any practice tion or change reviewability. in the law of Sec charge, fare, or tion 10 is so worded that it is obvious authority, given, have, and it is shall introductory the clause modifies upon upon or either agency each of the subsections. Thus n own complaint, at initiative without action is left unreviewable the statute once, if it so orders without and precludes agency or to the review extent by pleading or other formal answer by agency action is law committed to carriers, or interested carrier discretion. These two reasons were the notice, upon to enter reasonable but precluding ones review of adminis concerning hearing law- upon by trative action the court before the charge, rate, fare, of such fulness Administrative Procedure Act en was n classification, regulation, prac- or wording acted and has Act hearing tice; pending and such and brought change.7 about no thereon decision scope Whatever the filing review of and schedule upon with such (e)8 alone, subsection is when read delivering the carrier or carriers scope certainly of review is thereby narrowed in writ- a statement affected portion introductory suspen- ing for such its reasons clause, “Except (2) so suspend far as may sion, from time to time agency action is law committed to operation of schedule such agency Thus, although rate, fare, discretion.” sub- use of such defer (e) provides reviewing regulation, section classification, charge, period agency longer set court shall aside action found practice, not but 8. Subsection 4. 5 U.S.C.A. 7. See 6. U.S.C.A. provisions, interpret where part shall tise, (e) 49 U.S.C.A. applicability So reads decide 28.08 Davis, far as presented constitutional as follows: § § all relevant (e) (1958). § 1009(e). Administrative 15(7). necessary o'f the determine [5 U.S.C.A. terms “Scope questions reviewing to decision Law Trea- any agen- of review statutory 1009] meaning law, order, istrative conclusions capricious, ably delayed; otherwise equivalent to act.” See 5 “the whole or ey and sot aside action ^[*] Agency ^[*] action. unlawfully license, action Procedure or denial an abuse of It shall found to agency in accordance with sanction, U.S.C.A. withheld defined action, (B) (A) compel agency thereof, every agency relief, hold unlawful discretion, 1001(g). or unreason- findings, or failure including: .arbitrary, Admin- rule, law; may capricious”, passage Prior “arbitrary it to the of the amendment [or] to be arbitrary capricious equity ac- several bills in had been filed in set aside seeking agency injunctive law Federal courts so action relief tion far as against agency preclude far discretion. So the carriers to the col- committed newly published rates, lection of committed action is law as the pending hearing agency full discretion reviewable— before the Com- of dis- mission. or abuse Some courts for arbitrariness held that a court even equity power enjoin or not had Whether cretion. reviewable, purpose or collection of for a limited the new rates14 and others contrary.15 otherwise, upon held to depends is com- what law and common mitted statutes reviewability of action of the discretion.10 Commission under the amendment discussing refusing Supreme pending hear- legislative history of the Act and how seems to have been raised for the changed all, first extensively, time in M. C. if at Section Kiser Co. v. Central Georgia Ry. said:11 prior review Co.16 law on There the court “ * * * stated: easy No answer “ * * * sub- in our on the found decisions point The involved here question ject. must Each statute remedy is whether this is exclusive individually; pur- its examined or not —whether it ousts the United history text pose as well as its general equity States courts their deciding are to be considered particular on that sub- were intended whether the courts ject. The court is to think inclined aggrieved provide relief for those Congress intention was to failure action. Mere administrative remedy provided by make the ” provide for intervention amendment exclusive. conclusive; is the neither then, span approxi Since a appears language presence of which mately forty-three years, whenever the bar it.” reviewability suspen of denial of a rate Transportation 15(7) present Section sion the Commission has been the authorizing Commis 12 issue, the courts have refused Act review.17 hearing rates, pending a sion always Not have reasons for unre of the filed the lawfulness to determine viewability same,18 every been but in original Inter was rate added case been review has denied. The back February 4, Act of 1887 state Commerce ground against which the amendment 18, Act of June 1910.13 wording adopted and the was Davis, Treatise, 10. Administrative Law 4 Atlantic Coast Line R. Co. Macon v. Gro (1958). 28.16 cery Cir., Co., 1909, 5 166 206. F. Barber, 229, 1953, D.C.S.D.Ga.1916, 11. Heikkila v. 345 U.S. 576, 573, 16. 236 F. af- 603, 605, 73 S.Ct. 97 L.Ed. 972. Cir., firmed 239 5 F. 718. 15(7). 12. 49U.S.C.A. States, Coastwise Line v. 17. United D.C. F.Supp. 305; N.D.Cal.1957, 157 Nation following 49 historical note U.S. See Water Carriers Ass’n al v. United 15(7). C.A. States, F.Supp. D.C.S.D.N.Y.1954, 126 Georgia v. 14. M. C. Kiser Co. Central of 87; States, Carlsen v. D.C.S.D. Co., 193; Ry. C.C.N.D.Ga.1907, F. 158 F.Supp. N.Y.1952, 398; Merchant Chicago, M. & Bros. & Jewett v. Jewett Bureau of New York v. Truckmen’s Unit Ry. Co., C.C.D.S.D.1907, P. 156 F. St. States, D.C.S.D.N.Y.1936, F.Supp. ed Ry. 160; Pacific Co. Pa Northern 998; Algoma & Coke Coal Co. v. United Ass’n, Cir., Coast cific Lumber Mfrs. States, D.C.E.D.Va.1935, F.Supp. 1908, 165 F. 1. 17, supra, Note and cases cited there- in. Iron & Steel Co. v. Kanawha 15. Columbus Ry. 261; Co., Cir., 178 F. & M. Congress company condition of the the- did indicates amendment authority goods fact upon canned are vital to. the court intend to bestow Having suspension or- Luckenbaeh’s business. al- of a the denial to review this, right ready major amendment, a diverted Prior der. previous a first instance traffic promulgate themselves cut, they propose rate Interstate now a further- The the carrier. rested with deprive the cut car- which confront Luckenbach Act does alternatives, ruinous theirs at with two both was which rier of this initiative n —to generally or to con- cut rates below cost The Act law.19 common goods filing see all its taken templates new tariffs with canned traffic hearing. prior the railroads. In either case to a long suspension order is Luckenbach remain in grant a cannot or denial railroads, hearing business, interlocutory step preceding a a result which the professed have a determination to to the lawfulness and decision bring pending may proposed reduced made about. It rate. year, hearing rate end terminates at the on merits without testimony.20 automatically present The Act when the introduction again provide becomes The re- if a effective. does stated, granted but duced rate is below and will sub- must be cost reasons stantially be stat- need reduce the revenue whatever no reason denied goods contemplates percent the 62 the canned ed.21 Since hearing carrying without traffic railroads are at mission action higher decision, present rea- whether written rate.” basis expertise not, required or is the sons are cognizance Judicial of the above action of trans- in the field of the Commission 23 predicated upon two factors: clearly contemplates, portation. The hearing by before the Commission (1) independent applicability The given requires be no reason and decision regulate provision the Sherman Act suspension. in this Review if it denies unimpaired, railroads for the remains agen- effect, supersede would,

posture in delegated power I.C.C. not has been functioning. cy The court is constrain- standards; enforce Sherman therefore, ed, the denial to hold by suspension of a provisions of the Interstate agency by discretion committed law authorizing Act, the Commis- not reviewable. therefore from sion relieve carriers rate-making responsibility for collective plain- disposition for There remains procedures, immunize the does so- Defendants’ con- claim. tiff’s antitrust alleged. predatory practices called evidencing Sherman Act duct cited forth is set be- 1 and violations §§ Conceding plaintiff’s proffer for the low: purpose of discussion it does resolve namely, presented, know, issue the fundamental from Luck- “The railroads juris reports, primary applicability financial enbaeh’s filed sion, appellate acting Algoma & Co. as an Coal v. United division. 19. Coke F.Supp. 487, D.C.E.D.Va.1935, States, in This is be 'found however proceeding before the Com- 493. record Concededly it mission. need not re- Company Long v. Unit- Island Railroad 20. suspension denied, when corded D.C.E.D.N.Y.1956, States, 140 F. ed then no reason whatever need be stat- Supp. 823. Company Long Railroad ed.” Island “* * * suspension States, D.C.E.D.N.Y.1956, While 21. 140 F. United reasons, Supp. 823, the basis must state rea- 827. expert we be the knowl- sons assume Law, p. Plaintiff’s Memorandum of 38. 22. Suspension edge of the members of the Ibid., p. Board Division of the Commis- our miscon achieve maximum diction doctrine.24 Plaintiff effectiveness process. import bypass conc To ceives modern law, peculiarly adapted field ept.25 particular con in a The recent decisional strong judi- junction legal complete would be a economic and with the literature board, integrated ly urges system cial neces- waste. An where an administrative special knowledgeable particularly precede sitates area, established, prelimin machinery review cre- where has been ized has been ary procedure. body Especially had ated for to the this resort should litigation is phase this true trans- some of the matter in area of national portation regulated jurisdiction.26 fully in- within its exclusive and other dustries.28 by Frank- As observed Mr. Justice Far

furter in East Conference v. Application foregoing States: principles allegations of the com “ * * plaint * conclusively an demonstrates the Uniformity con- charges initially titrust should be con sistency regulation busi- by sidered the Commission. That agen- particular ness entrusted to a precise forming plain facts basis cy secured, func- are and the limited cognizable tiff’s antitrust action are judiciary review are tions of amply supported Commission is pre- rationally exercised, by more plaintiff’s showing before the Commis ascertaining liminary resort for sion in proceeding. interpreting un- the circumstances There, application designated in an “Pro legal derlying agencies that issues to Suspension” test and Petition for at equipped are better than courts pages plaintiff 9-10 stated: by insight gained specialization, through experience, by more “IV. Violation procedure.” flexible Antitrust Laws preliminary requirement resort to “The reduction thus imperative designed administrative boards is competi- to eliminate the 25. “The Treatise, to Issue, not the should * * more does not tween courts and mary jurisdiction, agency will erns agency initial decision. the court exhaustion ministrative primary together erns mary decision, ern tion. prior or exclusive “The doctrine % “The doctrine of prepare the only judicial informed * ” resort, In take its holding will ^[*] timing jurisdiction different this necessarily or the and of 19.01, pp. initially the primary jurisdiction, Davis, the review of is not a v action. important finally question question or that of ultimate way, from the preliminary judicial agencies, ^[*] precise ripeness, primary jurisdiction, primary Administrative Law the Board had determines short, decide allocate decide the doctrine The doctrine administrative whether whether 1-3 should respect, s¡: course, the determination review of ad- awas (1958). doctrines for it jurisdiction which power ^ resort, particular that make the litigation whether it device for a is issue. gov- gov- gov- pri- pri- be- ac- $ al- or of of 29. Document 27. 26. Note 28. factors lations, tion for federal courts under would had complaint. tices reasonableness tices cy’s ticular sistently 1958, 851, 862, eral Maritime Board v. Isbrandtsen 492, 494, 1952, “ balance.” ** the Court 3 L.Ed.2d primary delicate relating 358 U.S. throw 356 U.S. 35, statute as for otherwise 342 U.S. including circumstances. 2 L.Ed.2d 926. held that when rates and 96 L.Ed. 576. * Accordingly, Suspension” infra and light styled existing regulatory thereto were would 334, 481, 570, 574-575, alleged such applied “Protest accompanying States laws, 348, rate scope sporadic 498-499, disrupt attached to the * to consider the this many out structures antitrust 79 S.Ct. to those scheme, the ** v. R. C. and Peti- challenged action an 78 S.Ct. agencies relevant meaning ” text. prac agen S.Ct. prac con par- Fed- vio Co., A., advantages, enees or unfair well cal- is tion Luckenbaeh —and competitive practices; destructive such effect. When culated to that ** * provisions of through All of the collective purpose is effected be this Act shall admin- action rate-making procedures to istered and enforced a view with exempt they violate —otherwise — carrying out the declaration above of the Sherman and 2 sections 1 ” policy.’ Act.” Antitrust Policy re- Plaintiff’s assertion the railroads’ Transportation The National predatory violate, alia, practices inter the Commis- quired to be considered additionally provision, aforementioned part:30 provides in sion charge “ ‘ forms de- for basis its hereby be to declared It is wrongfully monopo- attempt fendants transportation policy national lize “a of the trade commerce Congress provide fair for among the several States”.31 regulation modes impartial of all only relief provi- Plaintiff seeks subject transportation * * * against also defendant railroads but to en- Act, of this sions against the Commission for it is the courage main- establishment per charges final action the Commission reasonable tenance of mitting services, the rates to become effective that un- transportation without injurious Thus, plaintiff.32 prefer- is if the discriminations, just undue against preceding entitled all relief at Note 30. 49 U.S.C.A. Historical I.C.C.? 1.§ Kirkpatrick: very Yes, sir, “Mr. defi- Complaint, allegation 19. nitely. page Biggs: you Reply “Judge Brief at states: Do assert that Plaintiff’s against sought illegal is I.C.C. is in an “Insofar as relief combination on Commission Railroads? the Interstate anti-trust diction juris- Kirkpatrick: grounds, theory “Mr. the basis Our is panel really Commis- clear. in this I.C.C. here is qua non for ef- the sine link in action is the chain which this sion fectuating last violation. the anti-trust anti-trust violation will be consummated. point: imprimatur it, an essential Here I understand Commission’s As rate, propose, prerequisite reduction which the Railroads except by seek destruc- cannot be a fil- which the roads made effective Fully that its action with the and Commis- informed Commission tion. has, effect, permitting sion action effec- have become this persisted position. nevertheless, When, in its tive. Unless that done rate can- govern- charged. here, When the filed rate is permits sanctions to used with the ment permits effective, anti-trust it to a violation of the become then that consummate beyond only legal laws, acquires reach.” becomes the rate. It it is Transcript statutory pages force, on 86-87 and it And following lawfully Argument the col- which the can the Oral carriers collect shippers pay. loquy properly court and counsel the can Con- between really appears: sequently, plaintiff Commission action is you Wright: Suppose just step thing. “Judge the last in this whole the If effect, go from into to restrain the Railroads did virtue wanted not right given processes, exercising the them the then we would law, your to make these I.C.C. not be hurt and would not be before effective, not have that been afternoon.” would this rates Honors Judge one-judge Biggs would which come I matter Chief construe the a Clayton allegations Act, complaint, up under the anti-trust broad of the to- gether with counsel for afore- laws? Kirkpatrick: enunciating relief were mentioned remarks as an- “Mr. If our Railroads, solely against against sought then titrust cause of action the the Com- one-judge thought unnecessary mission. We find it have that in view would I pass final have heard the matter. of the to could determination on your Wright: position, agency “Judge whether an o'f It is the United States theory, you party pri- are can be anti-trust made defendant in under vate antitrust action. “(1) contrary finally question to the On be declared whether Transportation policy, applies problems then doctrine re- to National beyond purported conspiratorial have lief action will which are administra- theory jurisdiction, tive seems been thwarted. reasonably clear. The test in- determination Paramount this parts whether are some of the case initially viting rule to jurisdiction within the exclusive on the is the fact instant claims courts; the test is whether some pur- operating defendant are railroads parts of ex- the case are within exemption 5(a) suant agency. jurisdiction n clusive of the agreements.33 (a) supersedes Section purpose Because of the doc- of the the Sherman Act to extent agency will trine —to assure that the agreement Approved is immunized especial- by-passed on what proscriptions;34 since Sherman ly re- committed it—-and because 5(a) Section is administered open sort to after the courts still upon the Commission it is incumbent agency acted, has the doctrine seek the observations applies even has respect extent Commission with jurisdiction grant relief scope exemption. The ex- sought.” certainly emption sterilize all does not action, however, conspiratorial forms of principle The enunciated Professor orderly to foster an administration eminently Accordingly, Davis is sound. provision requires, at immunization plaintiff required to address these anti- minimum, primary construction charges trust first to the instance the Commission. Commission. Professor Davis in his Administrative question remaining sole The suggests is wheth- Law Treatise that under the presented, er circumstances initial resort dismiss retain the administrative charges. is indicated: preferred engage, 33. “The to- transportation railroad policy defendants of the national de- gether virtually with all Act, provided other United clared in tbis the relief railroads, paragraph States and some Canadian (9) of this section should ratemaking .agreements apply respect collective under making to the approved by carrying agreement; Interstate Commerce out of such oth- application Commission under In- section 5a of the erwise shall be denied. (49 approval terstate Commerce Act U.S.C. of the Commission shall 5b).” Complaint, allegation granted only upon such terms and may pre- conditions as the Commission provides 49 U.S.C.A. 5b in relevant necessary grant scribe as to enable toit part: approval in accordance with the “Any party agree- 2] [If carrier to an para- standard above set forth in this among ment between or two or more graph.” relating rates, fares, carriers classi- any agreement ap- 9] [H “Parties to fications, divisions, allowances, charges proved by the Commission under this (including charges between carriers persons are, ap- section other .and if the compensation paid or received for proval agreement prohib- of such equipment), use facilities and or rules by paragraph (4), (5), ited regulations .pertaining thereto, or section, opera- this relieved from the procedures joint consideration, for the respect tion o'f the antitrust with laws may, thereof, initiation or establishment making agreement, to the of such and regulations under such rules and the as respect carrying with out of such may prescribe, apply Commission to the conformity agreement provi- in with its approval agree- Commission for of the conformity sions and in with the terms ment, by and the Commission shall or- prescribed by conditions and the Com- approve any agreement (if ap- der proval such mission.” prohibited by par- thereof is not agraph (5), (4), section) Davis, Treatise, this of 3 Administrative Law by that, 19.07, p. if it finds (1958). reason of furtherance RODNEY, Judge (concurring District As observed procedure is to dismiss. part dissenting in and part). in Supreme Court: I am in entire accord with most of the purpose will no believe that “We agree that, conclusions herein I reached. present to hold be served here existing provisions under of and law abeyance District in action procedure, change where of of trans- before proceeding while the Court portation carrier, is it considered subsequent and the Board duty carrier, intending of the such order of its or enforcement review change, file the new rates being suit similar pursued. A are with the Interstate Commerce Commis- appropriate. later, easily initiated Upon being protest sion. filed, it be- procedure counsels Business-like duty comes the of the complaint Interstate Com- the Government’s ** merce Commission to determine the law- dismissed, now be should of doing fulness the new In rates. this questioned may, Commission not, have but need Defendants suspension statu propriety of the of the new rates until final hearing. acting upon suspension If three-judge tory ordered, court rea- sons for cause The antitrust claim. Commission antitrust inextricably assigned. must be so If review are no the action of the new unwarranted be would ordered the Commis- enmeshed junc sion, litigation signed no and, at this order is to truncate under the weight phase authority, To refer reasons need ture. assigned require for different such would refusal. court the district initially on rule reviewing tribunals The failure or refusal of the Interstate this determinat phases of respective Commerce Commission to ion.37 operation of the new rates as this hearing case is, until agree, final I background, and in view Against this exercise discretion vested such Com- ancillary of the antitrust nature mission and since the discretion has Judge Biggs I are in charges, Chief provisions been then exercised under the presently constituted accord (5 Administrative Procedure Act premises. jurisdiction in the has 1009(e)) U.S.C.A. § it is excluded as to reviewability. dismissed. So much for the relief sought against effect is filed concur to such Interstate An order by injunction. opinion. rently this States, money fines, ment or the v. United East Conference collection 36. Far penalties 492, 577, 570, 72 S.Ot. forfeitures.” 342 U.S. U.S.C.A. §§ L.Ed. 576. Appeal 'from the decision of the Unit- provides: U.S.C.A. 37. 28 ed States District Court for the District “Except provided law, otherwise .sitting judge of Delaware as a one may appeal Supreme any party to the dismissing an claim as herein granting deny- from an order Court alleged pursuant would be to 28 U.S. hearing, ing, an inter- after notice and C.A. 1291 which states: injunction any locutory permanent appeal juris- “The shall courts have required proceeding action, suit or civil appeals diction final all decisions Congress by any be heard States, of the district courts the United by a district court of three determined Territory District judges.” Alaska, the United States District Court applies wherein either an section This Zone, the District of Canal injunction permanent interlocutory Virgin Islands, District the except Court of the enforcement, op- sought to restrain the may a direct where z-eview be bad execution, in whole or in eration Supreme Court.” order of Interstate Commerce pay- “other than for Commission complaint a claim It also states will be borne in mind that is not it every against proceeding the defendant railroads or review an order acting them action of others in combination with the Interstate Com- majority three-judge requires mission under the antitrust opinion laws. The that every Pri- enforce, court. finds that doctrine While action to mary requires that this mat- annul or Jurisdiction set an aside order of Inter- by required ter be first the Interstate state considered Commerce Commission is by Commerce Commissionand dismisses U.S.C. 2321 to be taken under arising provision Chapter the vio- claim as the yet 157 of Title upon bringing lation of the antitrust laws of such action does operate require three-judge that the basis. Primary It is not conclusion itself to operate stay suspend with reference to court or Jurisdiction as a or laws rests some features of the antitrust the order of the Interstate Commerce Commis- request with Interstate Commerce Commission is made object stay sion to which I for I not reach for a do the order question. question I whether the the Interstate Commerce Commission special three-judge court should deter- case would remain in the district normally mine this matter whether it should be court as constituted. by as nor- determined the district court only It is three- under.Section mally constituted, and with which this judge court into comes If an existence. originally case was filed. interlocutory permanent injunction re- straining the enforcement of the order of three-judge court is somewhat the Interstate Commerce Commission anomaly. It an a federal district requested, then and then does judges consisting at times of court three three-judge court come into existence. purely statutory instead of origin It is of one. present proceedings In the and insofar and intended purposes. distinct and concerned, as the antitrust claim is no in- limited junction against Interstate merce Commission with reference to the Starting expediting provision as an suggested antitrust claim is plaint in the com- 1903 with reference to certain sought. nor mentioned in the relief insuring by cases and as direct review It is true that in plaintiff the briefs the (32 Supreme Stat. U. seeks to consider the action of the Com- 29) three-judge S.C.A. §§ refusing mission in pro- applicable has been sit- made several posed constituting rates as an effective Among these uations. were suits an- step claim, injunc- in the antitrust but no nul, set aside or restrain orders complaint tion considered with Interstate Commerce Commission and reference to that claim. concerning constitutionality matters Although of the state statutes administrative neither the in this prayers In these latter orders. instances nor the case for relief mention three-judge requirement of a the Interstate Commerce Commission inextricably universally and almost in- claim, yet reference with to the antitrust injunction majority the matter of terwoven with this Court considers that the issu- the disinclination allow the Interstate Commerce Commission is injunction plaintiff or refusal in cer- ance participat- claimed with judge. way cases to be determined one tain some in the antitrust viola- any U.S.C. Whether So tion. the Commission be con- restraining injunction participant the enforcement an active sidered in the anti- execution, operation or essentially whole claim trust and therefore as a defendant, part, order of the Interstate Com- or whether the non-action of merely will be merce Commission determined furnished the three-judge court under 28 U.S.C. may means which the railroads charged violation of any laws, do I then in neither case see

jurisdiction three-judge since in a injunctive

no way. relief is involved opinion three- I am of the

judge juris- court as such has such given expressly to it diction as is jurisdiction to not have

statute and does anti- either the merits of the

determine nor to

trust claim dismiss Primary Jurisdiction claim under questions as

principle. I think that all con- claim should be to the antitrust normally district court as sidered embracing resid-

constituted and as plaintiff not claim of the

uum of the

cognizable by three-judge A court. cognizable portion think, three-judge may, I coming segregated within from that three-judge such

court.1 ELECTRIC COOP

POWELL VALLEY ERATIVE, INC., Plaintiff, AVIATION UNDER

UNITED STATES al., INC., WRITERS, et Defendants. A. No. 680.

Civ. District States Virginia, D.W. Abingdon Division. 11, 1959.

Dec. D.C.D.Or., Supply Comm., Shippers’ Committee v. Interstate Car F.Supp. 939, 943.

Case Details

Case Name: Luckenbach Steamship Company v. United States

Court Name: District Court, D. Delaware

Date Published: Dec 14, 1959

Citation: 179 F. Supp. 605

Docket Number: Civ. A. 2144

Court Abbreviation: D. Del.