Tampa Phosphate Railroad Company v. Seaboard Coast Line Railroad Company

BROWN, Before JOHN R. Chief Judge, GOLDBERG, and GEWIN and Judges. Circuit Judge. GOLDBERG, Circuit right This case involves a com- pany condemn lands furtherance of railroading its ambitions it has after been denied a certificate con- necessity by venience the Interstate must Commerce Commission. We decide whether a federal district court has the 1(22). 1(20)1 application Tampa power In its 49 U.S.C.A. declared under proposed condemna- railroad was intended issue an primarily transport phosphate courts that are rock tion in state products of the Interstate all thereof to Port Sutton said violate § Hillsborough Florida, County, also find it neces- from a Commerce Act.2 We any, point thirty away sary defenses, some miles in Polk to consider what County, Tampa opposition prayed to the al- Florida. be asserted grant authorizing leged of a certificate con- violation. railroad, struction of the al- and in begins July history case of this application for dismissal of ternative Phosphate Tampa Railroad of 1965 when beyond jurisdiction. the Commission’s yet corporation Company (Tampa), support of this al- contended railroad, applica- operating filed an as a (a) proposed railroad ternative Com- tion with the Interstate Commerce only operate would in intrastate com- (Commission) questing for au- mission merce, (b) that con- and line would thority to railroad under Sec- construct spur 1(18)-1(22) stitute or within Com- industrial track tion of Interstate 1(18)— 1(22).3 merce Act. 49 U.S.C.A. exemption § See of 49 U.S.C.A. § 1(20) railroad, 1. 49 U.S.C.A. § of of or the construc- its line power railroads, shall have The Commission line of or shall tion of a new prayed for, any operate railroad, acquire issue such certificate or line of it, thereof, or_jahflll_en&a£e_in__ or to issue or to refuse to issue or extension portion portions of chapter of a line transportation for a or over under this thereof, railroad, by described or extension or means of such or ex- additional partial application, railroad, and_.until for the in the or tended line of unless right privilege, or of exercise such have from shall first been obtained there may the issuance of the and attach to the present a certificate that Commission public and conditions as certificate such terms or future convenience public judgment require necessity require in its convenience and or will necessity may require. construction, operation, From and' and con- or or certificate, operation, and after issuance of such addi- struction and of such by may, before, railroad, carrier railroad line and tional or extended of approval securing subject without other than railroad to this carrier certificate, comply any por- chapter such with the terms abandon shall all or opera- railroad, or and contained in attached conditions line of or the tion of a thereof, to the issuance of such certificate and and shall tion unless until there construction, proceed opera- with the the Com- have been obtained from first thereby. tion, present or covered abandonment certificate . mission a operation, Any., construction, public or aban- or neces- future convenience and contrary' provisiofis sity permit donment to" 'the" of of such abandonment. paragraph (18) paragraph Nothing this or of in section paragraph in this or enjoined (19) or be 5 of this title shall be considered to this.section by any competent' making hibit of contracts between subject States, the suit of the United this carriers railroad any regulat- Commission, Chapter, approval. or commission of the without ing body affected, joint ownership or or of the State States for the interest; any joint team, party spur, industrial, or__any and use of any director, which, officer, switching, carrier" or or side tracks. receiver, trustee, agent, operating lessee, person, acting employed 1(22) or for or 3. 49 U.S.C.A. § authorizes, carrier, knowingly authority such con- who Commission any (21) to, permits (18) paragraphs consents or violation of ferred provisions paragraph section, inclusive, this or of both shall paragraph (18) section, shall abandon- construction or extend to the punished by industrial, team, spur, be switch- conviction thereof ment $5,000 tracks, ing, a fine of be lo- not more than or located or to or side imprisonment State, wholly or of for not more than three within one cated years, suburban, street, or electric both. or interurban railways, operated aas which are not 1(18) part general parts 2. 49 steam rail- U.S.C.A. or system transportation. No carrier railroad to this road chapter .undertake_the_extension shall hearings, County, After Com- The ap- Circuit Court of Polk ruling merce parently reserving Commission examiner recommend- on Sea- application. ed dismiss, denial of He held motion board’s scheduled the jurisdic- did Commission have for trial on matter December proposed tion because the railroad would Meanwhile, initiated this Seaboard had operate commerce, in interstate and he District Court suit the United States trackage found that the new would Middle of Florida. Sea- for the District spur constitute track industrial sought pre- injunction to there an board meaning 1(22). within the He then continuing condemna- vent from Tampa’s application, denied prop- tion Seaboard’s operation construction and not been had enjoin erty, sought Tam- further required by present shown to be operating any pa constructing necessity. future convenience and procur- first railroad facilities without Subsequent completion ing Commission. a certificate from the hearing, administrative the Interstate alleged Tampa’s actions were Commerce Commission found in a deci- 1(18) the Interstate violation August 7, 1967, sion dated “the 1(18), Act, Commerce U.S.C.A. § findings hearing and conclusions of the sought under examiner on matters of fact law con- 1(20), pre- Act, 49 U.S.C.A. § disposed report sidered and of in his vent further violations. recommended order are in all material Tampa responded to com- Seaboard’s respects proper and correct.” plaint a motion an answer and with denying Tampa’s appli- examiner the Argument on motion to the dismiss. thereupon cation was affirmed and December to dismiss was held on adopted by appeal the Commission. No 14, 1967, on the dis- and December was taken from this order. Tampa’s motion to denied trict court Following application, the denial its granted preliminary in- and dismiss Tampa energies its directed full toward junction against any condemnation a series of condemnation suits then in property construction or Seaboard’s progress in the state courts of Florida. of conven- until a thereon certificate The first second of these suits had procured necessity from ience and was begun 13, 1965, on October in the Circuit findings of fact In its Commission. the Hillsborough County, Florida, Court of law, court found the conclusions Tampa’s application pend- while was still under 28 U.S. that it had ing before the The third Commission. 89(b), 49 28 § C.A. U.S.C.A. § began suit a short time later in Cir- the 1(18)-1(20). found also U.S.C.A. § cuit Court of Polk County, Florida. party proper in in- was a that Seaboard proceedings Tampa sought all easements meaning the of U.S.C.A. terest within rights-of-way or proposed for its rail- 1(20). The Seaboard’s court overruled existing trackage road across of the Sea- pleadings, judgment the motion on Company board Coast Line Railroad holding the order of (Seaboard). authority As these judi- not res Commission Commerce was easements, Tampa relied certain char- the intrastate or cata on permit- Florida eminent domain statutes proposed It then railroad. acter of ting one to cross the tracks of railroad of interstate com- this issue reserved 73.012, another railroad. See F.S.A. §§ investigation independent at a merce for 73.021, 73.151, 360.01, 361.01. Seaboard determined later date. court also opposed Tampa’s petition in each state provisions U.S.C.A. of 28 sought court and dismissal of the actions controlling applicable in this “are not grounds, alia, on inter case.” posed construction would be in interstate argument commerce and that heard on the Commission had Further was Tampa requisite April 22, denied on certificate. on March case ceedings except Tampa’s as mo- in a court State the court overruled expressly prelimi- Act of authorized Con- and vacate tion to dissolve gress, necessary Again in aid of nary injunction. or where its reserv- the court jurisdiction, protect or or to effectuate on interstate or intrastate ed judgments.” proposed railroad. character appeals to court outset We note that § to vacate. U.S. denial its motion applies irrespective of whether 1292(a) (1). C.A. § injunction par is directed federal ties Oklahoma the state courts. court that the district We hold Packing Co., refusing authority Co. v. & Elec. Oklahoma Gas within preliminary injunction. We dissolve applies when, largely as 537. The statute also the view that on base our decision already proceedings principles here, the state nor are neither 28 U.S.C.A. Martin, 1935, progress. any comity present Hill v. bar to the issuance 393, 403, injunction. 80 L.Ed. 293. of the district court’s injunction us that Under circumstances on the record before also find contrary going questions unless it falls the statute “has raised Seaboard substantial, exceptions one within authorized serious, diffi so merits doubtful, statute itself. to make them cult and litigation ground thus for fair inap- The district found investigation.” Hamil more deliberate plicable apparently instant case Co., 2 ton Co. v. Benrus Watch Watch injunction issue “in aid because could 742; Railroad Cir. jurisdiction.” Argument of its before Pennsylvania America Yardmasters of excep- trial court indicates that Railroad premise on the tion was invoked No more definitive examination state appeal required from a the merits is proper when the federal ex- courts have injunc preliminary refusal vacate jurisdiction over mat- clusive Yardmasters tion. See Railroad Willingham, ter of the Bowles action. v. Co., Pennsylvania v. Railroad America 1944, 503, 641, 64 88 L.Ed. 321 S.Ct. U.S. * “* * [Ojrdinarily the de 892; N.L.R.B., 1954, Capital v. Service granting or de cree of a District Court 501, 699, 347 98 U.S. 74 S.Ct. L.Ed. 887. nying injunction preliminary not a will assaying Without of this ra- merit appeal.” Myers Beth be disturbed on v. applied case, tionale as instant cf. Corp., 1938, Shipbuilding 303 lehem U.S. Williams, T. Son, & Cir. Smith Inc. v. 5 41, 52, 459, 638. 464, 58 82 L.Ed. S.Ct. 1960, 397, pre- that the 275 F.2d we hold departure extraordinary No reasons for liminary injunction under the could issue presented. such rule here from are “expressly exception authorized” to §

2283. I. permits 2283 the issu Section Tampa’s contention We deal first with injunction against ance of a federal state statute, antiinjunction 28 U.S. that “expressly when au 2283, injunctive process C.A. bars Congress.” It well thorized Act is prosecution of con- the further injunctive provision that an established courts in state demnation suits expressly 2283” “need refer provides: Florida. statute exception. to come within this Amalgamated Clothing Workers “A the United States court of Co., 1955, stay grant v. Brothers an America Richman question the fact that about there is COURT: 4. THE - enjoin proceed- “Now, perhaps I State whát is the Court did ing; referring primarily did it in aid when X said ‘2283 ' (R. 292) jurisdiction.” sense, because, applicable’; in own

393 452, 455, quiring 511, 516, 99 certificate from 75 S.Ct. U.S. 348 “con- the lan Commerce Commission constitutes also It is clear L.Ed. 600. meaning authorizing need struction” within of this guage statute of the of fed Gilmore v. Sandersville matter statute. See not “refer Company, M.D.Ga.1955, proceedings.” F. stays 149 Railroad of state court eral Bingham Taylor, 1965, Supp. Riner, 5 343 F.2d 725. v. 5 Cir. Dilworth v. Cf. uncertainty Any hand, case does Cir. 12 F.2d 226, 1926, the other 230. On merely regard exception resolved in be should be favor not fall within permits coverage of the national in- a statute view cause involves general protected. opinion, injunctive terms. terests to be See relief See 1964, p. 394, City Danville, 4 Cir. The undecided Baines v. infra. interests, denied, whether same and their Chase v. Mc these 579, 337 F.2d cert. scheme, regulatory 939, 1772, Cain, 14 function in the 85 overall S.Ct. justify treating 1(20) 702; Barry, express Cir. L.Ed.2d v. Sexton cert, denied, exception 1956, 220, 352 U.S. to Section 2283. 233 F.2d 76; 870, 94, 1 L.Ed.2d Smith 77 S.Ct. 1(20) begin by noting that Section 1957, Village Lansing, Cir. public pri- authorizes suit both Johnson, 856; F.2d Cameron v. S.D. parties, strong vate indication that 878, aff'd, 873, 1966, F.Supp. Miss. govern- contemplates supplementing Act 20 L.Ed.2d 390 U.S. S.Ct. regulation private mental action. York, 182; Greene of New S.D. v. State confronting a similar stat- One court Beyond N.Y.1967, F.Supp. 222(b) (2) utory In- scheme general guidelines the rules are compared has terstate Commerce Act Courts must then consider less clear. pri- supplemental private such actions protected the nature of the interests Clayton Act. vate suits under 15§ injunction, authorizing the statute Hughes Baggett Transportation Co. v. Machesky Bizzell, Cir. Transportation, Inc., F. 8 Cir. Corporation Gittlin, 2 Studebaker cert, denied, 393 U.S. 2d parties 297, 21 272. The court L.Ed.2d bring Leiter Min authorized to suit. See extensively quoted there Justice States, 1957, erals, v. United Inc. opinion in Bor- States v. Clark’s United 220, 225-226, 291, 1 518-519, den L.Ed. 267. deriving there- private such from the inference this case we the circumstances of suits serve interests. also to of the Interstate look Section 1(20), concept Act, public interest and its re The Commerce U.S.C.A. § authority. extensively injunctive That statute lation to 2283 have been § by this court in the case reads: discussed recent “ * supra. * * Machesky Bizzell, there of v. We construction, operation, Any pointed the area in which out “One contrary pro- or abandonment give held to command of 2283 has been para- paragraph or visions par way is the United States is a where graph (19) (18) of this section or States, ty.” Leiter Minerals v. United See by any enjoined of com- be court supra. au found in Leiter case the petent jurisdiction the -at the suit of thority proposition rule the for the Commission, any States, the United yield comity in 2283 must embodied regulating body of the commission or inter “superior or federal “national” affected, any party State States ” approval * * * then ests.” We cited in interest. Gittlin, Corp. case of v. Studebaker 1966, 692, where, appears serious in There be Judge opinion Friendly, attempt to condemn court constructing purpose not a to a found that bar lands trackage private first thereon ac- without action under the Securities new rival, may public Exchange ulti- which in ob- Gittlin Act. mately pre- cited.] bears the loss. [Cases not have 2288 would served that § action Se- an enforcement vented sought, among Act other “The ” Exchange Commission. curities and things, losses.’ West- avert such result a different therefore reasoned that R. Pacific ern Pac. Cal. Co. v. Southern merely public not obtain because should 47, Co., 50-51, S.Ct. being pri- asserted interests were L.Ed. party: vate foregoing, Based on the we con anti-injunction policy “If the of the bringing pres that Seaboard clude superseded statute need engaged protecting and ent suit was enforcement immediate and effective rights, enforcing private public as as well regulations and of federal securities and that the same suit could have been statutes, fact that enforcement brought by the Commission itself. Un private party than here rather principle of der such circumstances controlling.” agency should not be yield comity embodied in 2283 must 360 F.2d at 698. Machesky paramount federal interests. Corp. Bizzell, supra; Studebaker public concept interest & Gittlin, also Sheridan See reg- need for effective enforcement Garrison,. F. Townley 5 Cir. ulatory applicable to scheme are no less 2d 699. regulation than to the railroads regulation of Both are of na- securities. II. concern; tional both di- are national particularly This is true of mensions. objection pre- Appellant’s second like that before us in situations which a liminary also relates to com- trackage. proposes carrier to build new apart principle ity, comity but In such circumstances argues from Section 2283. strongest has found inter- if the condemnation ests: personam, then both state courts were have concurrent federal and state courts “Paragraphs supra, 18 to were of action over the cause considered Texas & P. Co. v. here comity proceed requires suit that each Gulf, Co., F. R. C. & S. by injunctive judgment undisturbed 46 S.Ct. 70 L.Ed. and were Dallas, process. Donovan v. See general part plan declared to be 408, 12 L.Ed.2d Congress intended to 409; Kline v. Burke Construction development mote and maintenance 260 U.S.. adequate railroad It was facilities. - hand, the other condem- 226. On said, page U.S., there proceeding rem, then nation were recog- [Congress] 266: ‘It juris- acquired courts, having first state earning preservation nized that “res,” courts are diction over capacity, and fi- conservation jurisdiction. Lida Princess entitled to resources, of nancial individual car- Thompson, Thurn and Taxis v. riers, concern; is matter of national

n 83 L.Ed. 59 S.Ct. property employed that must be argument is This mark. wide permitted return; to earn a reasonable building unnecessary by appellant pertain that cited all lines The cases courts, resources, one two involves a waste that to situation in which state, may juris- the burden assert and the other waste fall federal public; action, or, competition that the same cause between diction over rem, in over the same carriers result in harm to the case in suits public, benefit; property. that, in the Su- as well as In such circumstances injury upon preme when that a railroad inflicts has found concurrent Court proceeding state court if the ess jurisdiction in both courts exists Dallas, jurisdiction of the two courts personam, where Donovan v. in suits are matter, separate over supra; was Burke Construction Kline v. proceeding was itself if the the state supra, only court where in the first but of Thurn violation the Act: Lida rem. Princess is in suit “ * * * supra. Thompson, and Taxis v. eviction Here the landlord’s of the Peace proceeding in Justice neither us involves before The case clearly an enforcement was not state and Court in both of action cause same It Act. proceeding courts, res over authorized nor a common federal allegations rather, was, if the had to assume court district proved true, to be vio- proceedings Administrator jurisdiction. The state merely The state court’s the Act. condem- lation of courts were the Florida jurisdiction law and brought was based state local statutes. under suits nation per- Price Control Act. not on proceeding a suit § was The federal part of ‘con- It therefore not was under sonam jurisdiction contemplated current’ circum- Under Act. Commerce proceed- the enforcement plain district Over it must stances pre- ings contemplated that section to injunction issue did not court’s ju- acquire Rather, did District Court it issued repetitive suits. vent first, complete the state court risdiction but prevent state Lee, any jurisdiction acquired at all. derogation Porter v. never of federal law. power consequently within the was 328 U.S. grant Corporation of the federal District Court 90 L.Ed. Studebaker injunction provided the supra, Cf. Govern- Gittlin, F.2d 698. at 360 Bottlers, proving the merits ment succeeded Red Rock Red Rock Cola v.Co. 250, 66 case.” 328 at at 409. 5 Cir. at 1099. analogous to the one be- situation A controlling Supreme no dif presented We detect us fore was Lee, ference between the enforcement In that federal Porter Court proceeding brought in Porter the federal federal dis- en case a suit was proceeding forcement in the case before Administrator the Price trict suit; Emergency Con- us. Porter involved a state eviction pursuant Price sought here deal with a state condemnation The Administrator trol Act. governmental continuing enjoin a rent suit. In Porter there was a landlord public rights; there proceeding enforcement of here in the state Justice eviction rights. private the rents were enforcement of of the Peace Court since juris In Porter ar- was no concurrent of the Act. landlord there violative courts; gued: of the Peace diction between state and federal the Justice “Since * * * prob commenced hence no conflicts of Court action was injunction comity. prior lems of Here there likewise to the Administrator’s light court, jurisdiction. proceeding the Jus- no concurrent In in the federal acquired tice of the Peace Court had these similarities we find no substance argument jurisdic comity power the crucial issue sole to decide prevent therefore tional barriers the issuance of a federal District Court injunction. comity jurisdiction.” note lacked 328 U.S. federal argu- rejecting in Por at 1099. obstacle ment, anti-injunction indicated ter where the statute was injunctive proc- inapplicable.5 held there was no obstacle to It should therefore Dicken, 1946, 2283], 5. In Porter [the forerunner creat- compan- 1203, ing exception prohibition.” 1094, an to its broad 90 L.Ed. 66 S.Ct. 255, Lee, Supreme the 328 U.S. at 66 S.Ct. at 1096. As a to Porter v. ion case decision, antiinjunction Act Price result of that that Control found only obliquely legislative implied statute was mentioned in amendment “an was 396 general States, 1930, rule Northern R. no obstacle As Co. United be here. comity 469, 551;

principles a fed- 192, will bar S.Ct. 74 L.Ed. eral stances which of 1A, 0.208 W. ^[4] exceptions M. (1965). Moore, bring where See Federal the case “there are circum- United States v. Studebaker 2283. Practice, within one * * * Corp. ” ff v. United that the matter of 105, States, 81 L.Ed. Idaho, interstate 643, Tampa L.Ed. 1936, 1070; commerce, 298 U.S. insisted Powell juris- Gittlin, since it affected the Commission’s diction, open independent was inves- III. tigation by a federal district proceeding finally of intra- under to the defense of the Act even turnWe though outstanding there was raised an order commerce which state strictly speaking denying Tampa of the Commission a cer- the court below. While goes disagree. must merits of the con- tificate. We this issue to the pre- propriety troversy, not to the during Tampa’s cases were all decided at liminary injunction, lies and therefore nega- might what tivity.” During termed “era of periphery appeal, Doeskin see of this period Supreme Co., Products, Paper Inc. United negative order rule Court followed 361; Chicago Cir. F.2d power which courts the to review denied Chicago, & Ry. B. Western Co. v. Great Q. agency imposed that obligations no affirm- decisions Co., ap- upon ative burdens fully briefed it has nonetheless been plicant. regarded rule as an as- was argued by court, parties pect of the doctrine of administrative question has extensive brief on finality under courts declined to government.6 have filed been steps in review an administrative interim judge us trial also before proceeding. In Piedmont & Northern R. intention that leaves doubt his States, supra, Supreme Co. v. United fully try com- matter interstate judge statutory Court held that a three Under these circum- merce remand. court did not have under the interests in conserv- stances ing judicial think the Urgent Act, Deficiencies 28 U.S.C.A. § expense liti- time and 47, to review the denial a certificate suggest gation compel dis- that the us to necessity. convenience rejecting principles trict decision court’s denying court observed that the order estoppel been of collateral have entirely negative. “is It certificate premature. susceptible of violation and cannot Tampa argued the district court before finally call for enforcement. It does not investigation adjudicate railway’s standing; nor proposed rail- intrastate of its character enjoin does it it to do or refrain from at- road would not constitute collateral doing anything.” 280 U.S. at of the Interstate tack the order Taking S.Ct. at 194. the view that the Relying on sev- Commerce Commission. negative order doctrine barred review Supreme Court cas- eral somewhat dated es, judge court, appeal a three the direct Gulf, C. see Texas Pacific R. Co. v. & Court was dismissed & S. F. R. jurisdiction. want & Piedmont 5. Ct. Department v. Lee. U.S. at n. The I.O.C. and of Justice Porter See appear, however, were therefore asked to submit an amicus 1099. does authority They responded post- for the ex- brief. have both cases are argument request by press exception filing brief their authorization Copies court. both were sent to parties apparent responses government’s During argument became oral carefully actorj been received con- brief have the main ghostlike perform- stage. sidered. It was a not on seeing ance, without Hamlet. like Samlet Powell', not, appeal in is whether did not discuss as it was court in Piedmont The pass holding the Commission’s a court shall on impact on enforcement of its

the Tampa, power deny 1(20) Act to certificate to proceedings the a under § years proper for which the forum but court is some four at issue had been Gulf, in court such a determination. The R. Co. in P. v. Texas & earlier a Powell noted determination that such Co., R. Nonetheless F. & S. C. proper in suit a to set aside in Powell v. United was “either made court clear the validity granting a States, supra, in an order a certificate or review the that 1(20) enjoin vio- negative an suit under section a in was available order However, 1(18).” 1(20) proceeding lation section under enforcement Powell court neither the court in nor the stated: the Act. Court Gulf, R. in Texas & P. F. R. Co. v C. & S. (18) purpose 1 subds. “The of section Co., passed upon possibility faced or the empower (22) of Act was to the jurisdiction concurrent in both in- in Commission judge 1(20) court and court. three the § proposing to en- carrier stituted 1(20) Statements that “either” a § gage transportation or over in judge in- or a three court could an or extended line means additional quire jurisdictional anew issues such into authoritatively it to decide whether as the rail- character of the public Un- be in the interest. would trackage of its must road the nature project sec- is one covered less light jurisdic- in be read of the fact that 1(18), is tion the Commission contemplated. in tion both courts was consider act authorized If the issue was the denial of a certifi- and, public is whether it interest public necessity, cate of convenience to determine for lack as it was in P. R. Piedmont Texas ap- deny question, must it Gulf, negative Co. v. then the order rule presentation plication. Upon by the precluded judge review a three court. certificate, application carrier sought hand, plaintiff On the other if the purpose of de- aside, to set an order of the Commission "by termining is whether authorized negative character, merits, may the act consider exclusive forum for review was a three question pass incidentally judge States, court. v. Powell United project whether one covered 288-289, 1(18). But section the decision Idaho, supra. United States In either of that is for the court case a court would review novo de either aside suit to set jurisdictional basis the Commis- granting a suit certificate sion’s actions. Nowhere was it stated enjoin section under viola- expected that both courts were to re- 1(18). tion function of section relating examine matters to the Com- para- of the court is to construe that jurisdiction. mission’s graph; is to of the commission project, determine whether if it is Subsequent to Texas & P. R. Co. v. paragraph, in the one covered Gulf, C. & S. F. R. Piedmont & N. 300 U.S. at interest.” States, Co. v. United United States at 476. Idaho, States, and Powell v. United 1(20) pro- repudiated in a United The rule that a court States ceeding obligation negative has determine order rule. Rochester Tele phone juris- Corp. States, 1939, whether had the United Commission deny on its the certificate diction doing very Com- so merits is based the view the Court on described the type prevented cannot the final of" situation that mission arbiter had re power. Piedmont, disapproved view own That decision lies with However, problem they earlier courts. insofar decisions were 398 2321-2325; States 28 United distinction be- U.S.C.A. by §§ the artificial affected supra; Maher, Pacific negative orders: v. Northwestern and affirmative

tween 1964, States, N.D.Calif., R. Co. v. United dismiss- the of Commission “An order 690, per curiam, F.Supp. 379 228 aff’d and complaint merits ing on a 333; 132, 274, 13 L.Ed.2d 85 S.Ct. U.S. an exer- maintaining quo is the status Chicago, Milwaukee, R. P. P. St. & Co. function, no of cise administrative E.D.Wis., States, 1963, F. 214 United di- less, an order than more and no grounds, 244, Supp. on other reversed change recting in status. some 448, 1102, L.Ed.2d 85 14 380 U.S. S.Ct. by the foreclosed issues nature of States, 151; Georgia of v. United State of the nature and action Commission’s F.Supp. 711, 1957, per N.D.Ga., aff’d 156 re- open, so far as left the issues 273, 771, curiam, 2 356 U.S. S.Ct. concerned, viewing power courts is * * * L.Ed.2d conclude, We the same. are any distinction, as therefore, way open for direct With ‘negative’ ‘affirma- such, between validity Commis review juris- orders, touchstone as a statutory judge tive’ sion’s order in a three the Commission’s diction to review court, is raised whether purpose, orders, useful serves no for such court the exclusive forum have been decisions insofar as earlier adjudication jurisdictional ques they distinction, can tions, may controlled they also be con whether guiding.” longer at 307 U.S. no be 1(20) proceeding. in sidered a be 142-143, 763-764. at S.Ct. judg lieve that all issues essential to the Commission, including ment of mat 133, 11, n. S.Ct. See also 307 U.S. relating jurisdiction, ters to its should repudiated. 754, Piedmont was where challenged only statutory in the three day the decision the same On judge court. Consideration such Rochester, reaf 1(20) proceeding issues a amounts negative rejection of the firmed validity to a collateral attack Maher, 1939, 307 rule in United States v. the Commission’s order. 1162, 768, 148, 83 L.Ed. U.S. 59 S.Ct. statutory Our conclusion that three judge permitting court a three review judge provided court in 28 U.S.C.A. by the Interstate Com of the denial 2321-2325 is the sole forum review §§ certificate merce Commission issues decided Commission necessity. public Some convenience support finds United South States again years an once ten later court Railway 1966, Company, ern 5 Cir. negative order doc nounced that denied, cert. U.S. vitality. In United further trine had no S.Ct. 18 L.Ed.2d In 592.7 Commis v. Interstate Commerce States case we held that suits the United 426, 436, sion, 1948, penalties resulting States for civil court in 93 L.Ed. the violation of the carrier Com negativity forms us that doctrine of- mission’s order not be could defended “wholly in Rochester abandoned grounds that were reviewable before States, Teleph. Corp. v. United statutory judge holding three court. 83 L.Ed. 1147.” Under the district court was in error burial further these circumstances considering defenses, such our Today required. it is seem ritual would observed: teachings contrary clear, to the “ * * * Piedmont, requirement re that a receive carrier judge district court of statute view in three that Administrative and Ju- applicable Commerce dicial the denial Review be to all cases petition enforce, suspend of his a certifi of suits enjoin, Commission necessity. set cate of convenience aside orders of the Cir., States Southern See also United 53-54. go power of the administra- U.S.C. reference direct has a Congress Myers di- v. Bethlehem tive tribunal. See Shipbuilding Corp., em- procedure to be rected 49-51, required cre- 643- ployed such cases Explicit Improvement three-judge Co. v. court. Road Callanan ation of legislation States,. supra; language Interstate Com- United in the relief, Cowan, judicial othér merce Commission D.C.S..D. requirement v. 247, money 1955, payment F.Supp. of 249. either 127 for the than exhausting fines, policy admin- penalties forfei- case the of collection reviewing istrative remedies tures, under must obtained §§ be long designated specifically such A line Title 28. 2321-2325 fealty purpose is served. To insure establishes Court cases Congress policy, preserve has such the statu- and principle that where review, judicial tory mode of a court a collat- provided and administrative designed proceeding may principles of procedures are eral invoke which review Meyers agency expertise estoppel. collateral v. permit See Realty, Inc., 1959, brought particular prob- upon Famous 2 Cir. 271 to bear cert, 817, 811, denied, lems, procedures F.2d prescribed are 362 U.S. 681, 619; though 910, exclusive, 4 80 S.Ct. L.Ed.2d this is true even South- and Freight Congress may expressly west Lines v. Com- not have Interstate 1950, the merce 8 184 the exclusiveness vided 149, 151; Bowman, statutory procedure.” 364 F.2d at Schwartz v. S.D.N.Y. cert, 1965, 51, denied, F.Supp. 67, 244 upon in The rule United States relied 921, 230, L.Ed.2d U.S. S.Ct. Company, supra, Railway is v. Southern 145; Interstate Commis- Commerce application of ex- the doctrine an Cowan, supra; sion v. United States v. remedies, see haustion of administrative Railway Exp. Agency, D.Del., 1951, 101 Whitney Bank New Bank v. National F.Supp. 1008, 1012; Com- 422, Orleans, 411, 1965, 85 S.Ct. 379 U.S. merce Commission v. G. & M. Motor is 395, 551, as such 13 L.Ed.2d Co., Inc., W.D.N.C.1945, Transfer limited to matters within F.Supp. 302; Interstate Commerce Com- purposes agency’s expertise. of its One Freightways, mission v. Consolidated litigation discourage piecemeal S.D.N.D.1941, F.Supp. parties necessarily would result principles properly applied Such are agency, begin then a suit before an could protect findings of an administrative challenge disengage combat, tribunal, Seafarers, Pacific Inc. v. Pa- ruling agency’s enforce- in a collateral D.C.Cir.1968, Line, Inc., cific Far East proceeding date. some later ment at cert, 804, 809, denied, 404 F.2d Ruzicka, United States v. See S.Ct. L.Ed.2d 290; court, findings as well as the Improvement Co. Callanan Road prevent re- be invoked to States, 1953, 345 U.S. United litigation findings, jurisdictional The rule also L.Ed. 1206. Gottlieb, 1938, Stoll v. duplication unnecessary con- avoids 104; 83 L.Ed. Pacific Sea- flicting litigation likely to result where farers, Line, Inc. v. Pacific Far East concurrent courts have two Inc., supra; Pennsyl- Seatrain Lines v. Whitney the same issues. to resolve Co., vania R. 3 Cir. Orleans, Bank Bank New National Interstate Commerce Commission rele- considerations have Both Cowan, supra, findings no less than sought to be the issues vance whether on the merits. Under circum- proceeding com- collateral are raised stances we think the trial court should agency, expertise of the see mitted to the acquiesced, not have least on the Railway, United States v. Southern appellant’s cases, request basis of they jurisdictional supra, are or whether commerce be IV. the issue tried anew. argument Tampa’s final application estoppel of collateral involves reason, apparent For some allegation changed circumstances. record, the court refused to re Tampa changes makes much that were ruling examine the Commission’s proposed made in its railroad subse- Tampa’s proposed railroad not a quent to the Commission’s spur or industrial track within the argues Tampa denial of a certificate. 1(22). exemption Yet this issue of § changes any possible that these “remove allega jurisdictional than less contention that Railroad is tion that is not an inter the defendant seeking authority to obtain interstate state carrier. Texas & P. Co. v. See a collateral attack an order of Gulf, C. & S. F. U.S. at denying the Commission it interstate Idaho, supra. 263; S.Ct. United States v. operating rights.” questions Both fore should have been 1(20) proceeding. Only Tampa or Whether closed in has so modified proposed questions its railroad as to take itself essential to Commis ruling open out from under the sion’s doctrine of were review. See collateral estoppel cannot Judgments, (o) on Restatement of determined §§ (p); Hyman record Regenstein, before us. Such a Cir. determina- 502, 510, denied, tion inquiries by must 258 F.2d cert. abide factual district court on the 3 L.Ed.2d 575. extent and nature Tampa’s However, modifications. The result that have reached is not few words on the standard which 1(20) pro affected the fact that a § appropriate. must meet are ceeding strictly speaking is not an ac Corp. tion to enforce an order of Commis Amerada Petroleum v. Fed- sion, enjoin Comm., but an action to a violation eral Power 334 F.2d Cir. 1(18), 1(19), reversed, of the or Act. The form the take in 13 L.Ed.2d court issues had be- subsequent proceeding jurisdictional strikingly fore it is not material issue application estoppel presented. similar to collateral the one here The long so as court ing the issues were in fact deter noted that an earlier suit involv- original parties, mined in the some of the same suit. “In such North Da- * ** cases, it is kota v. immaterial that the Federal Power 247 F.2d it had sustained two actions are based on different a decision the Federal Power Com- grounds, theories, or tried on different mission in which the Commission had purposes, for different instituted ” * * * jurisdiction declined over certain and seek different relief. gas ground natural contracts on the Jurisprudence, Judgments, American gas produced, had been sold and 371; Hyman Regenstein, Section transported only in intrastate commerce. supra, Meyers Famous 510. Cf. Subsequent ruling to the Commission’s Inc., supra-, Cowan, Realty, I.C.C. v. after this first decision identity parties Complete of the Eighth Circuit, producers gas had estoppel mutuality is also not re entered into new contracts with their quired party where whom distributors, and the Commission had as- already estoppel applied has had his gas serted over the natural day Seguros Tepeyac, in court. S.A. ap- covered the new contracts. On Seguros Compania de Gener peal, Mexicana Eighth Circuit set aside the Jernigan, Commission, holding 410 F.2d order ales v. 5 Cir. of Webber, estoppel under the 3 Cir. United States v. doctrine collateral of interstate commerce was activities, a method trastate become decision. earlier court’s foreclosed ex- however, noted a license unbridled deciding, In so pansion. former facts “Unlike present ad- case, appeal from the policies instant case involves al- ruling the Com- concerns ministrative present those most the reverse contracts passage new mission’s Amerada. Here the has Commission Petitioners, providing future sales jurisdiction, asserted the car- of dif- producers, additional as well involved, disappointed re- rier with the gas travel quantities destined ferent ignored encounter, sults of its has pipelines the MDU expanded over ruling, only the but Commission’s changes system.” 334 F.2d at statutorily prescribed method of review. subsequent to the Com- occurred that had Under these circumstances collateral es- quite therefore were mission’s toppel rigorously applied must be lest substantial. rulings all carriers frustrate merely by alleging Commission some re- certiorari, On slight proposed appli- modification in their Eighth Circuit versed the plans. plan No is so constituted that estoppel. Federal cation of collateral will not admit of Petro- modification the aim Amerada Commission v. Power relitigate of such sacrifice is chance to Corp., leum already issues considered and resolved 605. The rationale 13 L.Ed.2d briefly Commission. stated as decision the court’s follows: can In the before us we case thought Appeals that “The Court rule a “one inch” to subscribe Fed- in Dakota v. decision North whereby few railroad removal Cir., Comm., F.2d eral Power significant Nor a event. ties becomes estoppel 173, brought into collateral signifi changes can we admit that all are present play in case. 334 very least, in modifications cant. At the place has no But that rule 411-412. proposed Tampa’s railroad must bear governing past judgment for no here sought directly upon to the issue be scope jeopardy, only the in events is foreclosed, commerce. here regulations that involves future change relationship, Absent such a transactions.” different events suspending the effects is of no avail in at at Finally pro estoppel. of collateral posed must constitute such The test established modifications Amerada, changes the court can in for the avoidance substantial that Court grounds say good estoppel that collateral on conscience changed jeopardy,” to “in seem of the Commission is not circumstances would change require the old Federal Power Amerada between Commission v. that Corp., swpra, and the facts be so substantial Petroleum and that new “dif- in effect in effect the new facts constitute case before involves “dif If ferent transactions.” ferent events and transactions.” events things easily said, met since then the court Amerada that test was be justified re-examining changed new is involved issues that circumstances contracts, presented producers, are to the and several similar to those new agency. pipeline. It must Events and circumstances do hundred miles of new change opportunity also that Amerada involved and therefore be noted justified. attempted estoppel for a second look is use of collateral sometimes regulation giving governmental judicial in the But the need to foreclose avoid a blessing circumstances the circumvention interest. In such order, apply pre Commission’s and the need to there is a natural reluctance disregard prescribed estoppel vigor vent in all its lest a a mode collateral involving review, equally prior adjudication, only are in- valid considera- say permitted little, to ture erected too we do too be tions. must Congress My has as- little. difference is confined Part role which subvert the only way. Commission, a I means and then limited signed IV agree to the modify fully heavy— that the burden is decision to unilateral impossible practical railroad, stand- the Com- indeed from a proposed to render fact, point showing change If, nullity. of condi- mission’s —of the inexorable re- new mat- tions to flee before court is faced with the district justify estoppel.8 straint of collateral ter and new circumstances treating Tampa’s if there never case impossible But I burden would order of the had been add District an absolute obstacle. showing must of such then burden place thresh this issue not the heavily Tampa. on be demonstrable out. change If there has been a Tampa’s note in conclusion change conditions, then that afterthoughts postscripts proved and determined must be before proposed railroad to its modifications by the ICC. light must now be examined proposals imperative, prohi- The statute is presented previously to the peremptory. rail- carrier “No bition In the course of such Commission. chapter,” says to this road examination there must be no sanction * * * (18), con- “shall undertake every proposition minute * * * unless line struction a new application to deviation from a carrier’s until have been ob- there shall first the Commission furnishes detour a certificate tained from the [ICC] escape route into the state courts. * * * * * * public conven- [of] Tampa’s gambit analyzed should ** (See necessity note ience and principle shop- that forum mind opinion). (Emphasis 2 of the Court’s litigation fragmentation ping and are added). To do so invokes judicial anathema sound administra- 1(20) injunction imminence of a Accordingly, tion. on remand the trial or, of we now cor- hands the Government court must determine whether rectly hold, private competitor, whose original proposal has modified its appealing selfish the interests take on necessary appli- the extent to avoid the public color of concern. It invokes seri- estoppel. cation of collateral ous criminal and sanctions as civil well. judgment of The the district court g., (See, 1(20), e. note 1 of the Court’s § granting preliminary injunction is opinion.) affirmed and the cause is remanded for The behind the structure whole idea further not inconsistent the Act is commit carrier-railroad opinion. with this having problems body expertness to a railroading. in the business of Now Judge BROWN, Chief JOHN long since loosened events have (concurring). imposed laissez faire bonds Judiciary.9 a hostile fully 1(18) I decision Behind is a con- concur the Court’s gressional opinion for of scan- and the voiced determination born formidable Judge Goldberg. My high us reservations dals that and rocked the nation say growing places promotion too are not that hold too much low out of the My saddling railroads, much. are that on the struc- doubts invest- recog- statutory powers, My is not diminished would now full concurrence opinion simple principles But I think the nize that on of adminis- this comment. estop- unnecessarily law, 3-Judge is sole overworks collateral trative Court pel. Act review. To me Interstate Commerce —the word is sole —means history emerging from the and the rich Judiciary niggardly Swisher, American Constitutional resistance See C. contemporary recogni- Development (2d 1954). it down to 813-845 ed. toward exercise tion of the need for the fullest line new line heavy ing public or construction of a shipping bur- with expansion chapter.” is “carrier uneconomic occasioned dens specifically inter- tied to the intra or of facilities. state such line. nature guardian certainly least since — Urgent for 3- Act10 Deficiencies mini- is None of considerations Judge been of ICC orders —has review older some of the mized incongruous to think ICC. It is product of cases. were These Congress to Federal commit would (Part negativity” III of “era Judges lifetime tenure assures —whose given opinion) name Court’s —a independence, in- whose Commission but orders, negative but about pre- more them with ounce vests one accurately more the attitude describes then held delicate science before —this spurious hostility. of Judicial When is for Na- decision on what needed rejected, it. all fell before dialectic was system.11 transportation tional longer promoter his No have would problem appears to be the go Here the if ICC nice choice: before relatively grant one of a 30-mile ad innocuous permission, then it declined to here, defending dition. But can be there construction, if it done ceed a § with why Judge (20) grounds is no reason a Federal in- on the of no —(cid:127) then whose fact bear decisions will all to be terstate commerce. Now is 52(a) through just buckler and shield F.R.Civ.P. the ICC channeled into major thing by. —cannot do same on a 1(18) says, relief given 3-Judge Judges addition within a state serve case in a to come some new industrial traffic.12 And limited review afforded. very any event, very, if—and the is prohibition 1(18) and, flat big ju- anything is left to initial importantly, of the status more one — terms by the District dicial determination constructing Unlike carrier. Court, imperatively case calls switching (see spurs connections primary full exercise opinion), note 3 of the Court’s “change problem send the of condition” requirement does confine question or in- of intra and the renewed certificate convenience line the ICC ter-state character of the necessity those or facilities extensions hearing and determination. initial in or a of part which will concerning just a serious We did prohibition commerce. The exemption un- of motor carrier any the construction of extension of its duly officials and the authorized 22, 1913, States 10. of Act Oct. 38 Ch. Stat. wages encourage thereof; fair and to 220. Now see 28 U.S.C.A. § 2325. equitable working conditions —all and coordinating developing, of the end to 11. The Interstate Commerce Act declares transporta- preserving a national policy: and this to be the highway, by water, system and hereby tion It transportation is declared to be the national means, adequate rail, well as policy as other Congress . of to provide commerce of impartial regula- to meet the needs for fair and States, the Postal transportation of Serv- the United tion of all modes of sub- ice, ject All defense. provisions of the national and to the of act so this ad- provisions act recognize preserve of this shall be ministered as to and advantages each; pro- with to and enforced view administered inherent of carrying safe, adequate, of economical, declaration mote out the above and ef- policy. ficient service and foster sound economic transportation among conditions in and carriers; encourage preceding and several 901 §§ U.S.C.A. establishment and maintenance rea- 1001. charges transportation sonable serv- ices, unjust Appeals discriminations, Appeal hard- without is 12. to the Court preferences advantages, ly undue the fulfillment un- much assurance for competitive prac- policy. transportation fair or What destructive a national tices; cooperate with the several do we draw on? wisdom Agri- single der Act. proposition by Judge the Interstate Commerce shot a on a Transportation case-and-controversy private cultural Ass’n of Texas in a record King, Cir., 1965, competitors.14 F.2d 873.13 suit between intense big It is business. But it is our big big Railroading It is is business. It is the business. business of the ICC debts, big big problems, with business Judge business thereafter big big competition its inroads on the narrowest sense of whether the ICC great matters of revenues. It involves law”, is “in accordance with public importance. It needs inter- U.S.C.A. knowledgeable people concern ested experi- long having judgment born The return to the Trial Court will beyond as a that obtainable Tampa. ence and be a water haul for applica- spectacular Probably end, most our a welcome fo- certiorari soon found pri- jurisdiction primary shortly tion of rum were beneficiaries of royal- gas shortly sweeping the amount vate suits over orders FCC which precipitated healthy landowner-lessor ties due the settlement. Gas the Natural ducer-lessee seq. Regulation jurisdiction Act, Primary et U.S.C.A. does not oust jurisdiction duty de- Power Commission Federal or ultimate jurisdictional pended just postpones issue' on decision. to decide. gas royalties gas Sugar were “sales of whether Molasses See Southwestern Corp., 1959, Re- commerce.” in interstate resale Co. v. River Terminals jury trials, judgments versing 411, 420, after two Dis- remanded with directions L.Ed.2d 1959 AMC parties regard seek to direct trict Court I 1638-39. view of this do Wey- declaratory opinion FPC. from orders our to fore- instant decision jurisdiction primary Gas mouth v. Colorado refer- close use of a Cir., 1966, Judge Huber M. F.2d J. remand. ence the District on Cir., might Corp. Denman, supra, just Garter, this turn As in then, has held that the FPC 104. Since out to be a boon to since it would subjecting royalties opportunity evidentiary are sales re- afford payable appropriate depth FPC ceil- amounts examination extraordinary ings. nature of of the line. This interstate character liberally especially determine the FPC to reference so since ICC up pointed subsequent petitions for reconsid- own allows penetrating partial apart primary juris- quite dissent of Commission- eration Huber M. v. J. er Carver. Denman diction reference. Opinion Corp., Nos. Docket No. (July 23, RI67-113, -114, -310, experience -400 14. Our own case bears 1969). argument this out. The oral revealed recently umpiring helpless Dis we affirmed a more Even the Court was stayed private dispute anti Court which which had obvious overtones trict pending great public importance, determination trust suit luxury case-and-controversy sys- Commission Federal Communications prohibit validity provision permits, completely ignored of a tariff tem were telephone ing “foreign sys- connections” on each contestant in the liberties encourages, jousted company equipment. allows, American tem Carter Co., Cir., 1966, its own self interest. One side held Tel. & Tel. 486, cert, tenaciously negativity” denied, 1967, 385 U.S. to the “era of Piedmont, supra, paid This case L.Ed.2d 546. had other scant purists subsequent history. powerful to those refutation attention major as some became evident that the Government had who look on abstention evil, Steel Kaiser a stake and the Court on its own motion W. Ranch Co. v. S. Cir., 1967, Corp., 264- a detailed letter directive called Attorney opinion), rev’d, (dissenting Gen- extensive briefs from the 20 L.Ed.2d 835. eral. Then the interest doors be- pri- plaintiffs, resisting gan open. The antitrust mary bitter reference to

Case Details

Case Name: Tampa Phosphate Railroad Company v. Seaboard Coast Line Railroad Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 24, 1970

Citation: 418 F.2d 387

Docket Number: 26424_1

Court Abbreviation: 5th Cir.