*1 CO.; RAILROAD Mis- PACIFIC UNION Co.; Norfolk & Pacific Railroad
souri Co.; Railway Railway Southern
Western Co.; Burlington
Co.; Northern Railroad Corporation; Rail CSX
Consolidated
Transportation Co. INC.;
AMETEK, of Amer- United States Transportation Board,
ica; Un- Surface Co.; Railroad Missouri Pa-
ion Pacific Co.; Norfolk & Western
cific Railroad Co.; Railway Co.;
Railway Southern Co.;
Burlington Railroad Con- Northern Corporation, Appellants. Rail
solidated 96-7015.
No. of Appeals, States Court
United
Third Circuit.
Argued Sept. 1996.
Filed Jan. *2 plastic materials rail at
Ametek receives Pennsylvania pro- it Nesquehoning, which ships by rail to cesses and then the material suppliers’ customers. court, Ametek, motion The district on of Inger- (argued), Buchanan D. Keenan Paul referred one issue to the ICC: the reason- PA, P.C., Appellants.
soll, Philadelphia, for ICC, charge. demurrage of a The ableness R. (argued) and William E. Howard James however, preliminarily that determined L.L.P., Lockhart, Matthews, Kirkpatrick & it application tariff had no to Ametek because Ametek, Boston, MA, Inc. Appellee for consignor consignee nor was neither the of goods, shipped and had not assumed Attorney Bingaman, K. Assistant Anne liability. contractual Fonte, Powers, General, P. J. and John John adopted ruling and concluded of the ICC DC, Justice, Washington, for Department any sepa- into that Ametek had not entered of America. Appellee United States agreement obligating pay it to the de- rate Rush, and Eve- F. General Counsel Henri murrage It sum- fees. therefore entered Transporta- Kitay (argued), Surface lyn G. mary judgment for Ametek DC, Board, Appellee Washington, denied the Interline Railroads’ motion Transportation Board. Surface summary judgment. We affirm. NYGAARD, ROTH, and Before:
ROSENN, Judges. I. Circuit assigned by demurrage charges The Pan- THE COURT
OPINION OF Valley allegedly ther accrued under its tariff during through 1989 inclusive. Ame- ROSENN, Judge. Circuit ship customers the raw materials tek’s appeal in these consolidated eases The by private plant rail car. Ametek’s rail impression this questions of first raises Valley predecessor pro- and its had Panther relating symbiotic power of a circuit eight period a of about vided rail service over court and the Inter- United States charges. years without The (ICC)1 to ren- Commission state Commerce practice of Ametek’s customers was alert against demurrage fees2 judgment for der to whether the loaded cars should Ametek as any entity a an which is not trans- pr promptly to Ametek be held be delivered a railroad. The portation contract with delivery. Valley’s tracks for later on Panther (the freight six national carriers plaintiffs, Railroads) 1986, pri- Ametek had a need to store Inc. in the sued Interline empty inbounded vately owned loaded District Court Middle United States $297,270 periods of time. Pennsylvania rail cars for extended to recover District Valley Panther initiated discus- president is- allegedly a due under rail consultant concern- Compa- with Ametek’s Valley Railroad sions by the Panther sued Ametek (Panther ing a track side ny Valley), now defunct.3 Valley cars. Eventual- for such demurrage claim and Panther assigned had 22, 1986, presi- Valley’s ly April Railroads. on against Ametek to the Interline (ICCTA), prescribed by applicable specified time of 1995 die ICC Termination Act 1. The ” 104-88, 803, (6th Dictionary 109 Stat. abolished ed. Pub.L. No. Law tariffs.... Black’s many its rail ICC and transferred functions 1990). charge shippers and receivers (STB). Transportation Board the Surface shippers freight "demurrage” or fees if proceeding in this functions at issue beyond freight rails a cars on the receivers detain formerly performed by are were which vested in the STB days. designated number of 11122, by virtue of 49 U.S.C. will refer to the the ICCTA. We as reenacted agency plaintiffs premise jurisdiction in their ac- 3.The as § 1337. We have tion on 28 U.S.C. railroads, charge demurrage is "a exacted 2. As to being under 28 U.S.C. shipper consignee a carrier from a judgment. from a final unload cars within of a failure to load or account proposed agree- plaint claiming side track with the submitted that the demur- dent vice-president rates and were unreasonable. ment track to accommodate a The proceedings.4 would lease ICC consolidated the Ametek experienced by of rail cars overflow seasonal stated that before could deter August president Ametek. reasonable, if mine were *3 Valley sent a letter to Ametek set- Panther required threshold issue that it if determine proposed terms of a second ting forth the the tariff could be to Ametek all. agreement. side lease Ametek would track Finding merely agent that Ametek was Valley per per day 65 car pay Panther cents of its consignor customers and neither the Valley track. For stored on Panther reasons consignee, nor the ICC concluded that Pan involved, agreement all unknown to “fell Valley impose demurrage ther could not fees through signed. and was the cracks” never on Ametek. The ICC relied Middle At if parties All concede that States, lantic v. United 353 Conference force, were in Ametek would not be liable for (D.D.C.1972) (de- 1109, F.Supp. demurrage fees. murrage apply agent not does 1987, contract). Valley unilaterally transportation In Panther im- The ICC posed per per receive, process, .tariff car found that Ametek did $20 materials, day days company first two that a or distribute its own Am- and that beyond period generally cars a free consignor held rail of 48 etek was not the or con signee tariff increased to designated lading. hours. The each on the $30 bills of days, next two and for each subse- $40 challenged The Railroads the ICC decision quent day. parties disagree The as to pursuant the United States District Court whether Ametek was informed of this tariff. to 28 filing U.S.C. another and (Ametek problems, In of severe financial separate complaint against the face II). January 1990, Valley, in Panther billed Ame- The court consolidated Ametek II with $297,270 ICC, Ametek, tek for fees for the Ametek I. The and the Rail 15, 2, period through summary March October judgment. roads moved for invoice, pay 1989. Ametek refused to properly court found that the ICC addressed suggested way that the fair question to handle ap threshold whether the tariff storage problem plied would calculate to Ametek. court determined that the amount Ametek would owe under the concluded that a demur- agreement, aborted lease apply company amounted to tariff did not to a that is $29,664.60. Valley rejected pro- Panther not a to a transportation. contract of posal it would because not be its fi- granted summary “best The court then judgment 1990, nancial interest.” June for ICC and timely Ametek. The Railroads operations assigned ceased appealed to this court. creditors, (the freight claim to six its carriers Railroads).
Interline II. 23, 1990, July On the Interline Railroads Before we discuss the substantive is brought demurrage allegedly this action for appellants, sues raised the Interline 15,1987 Railroads, accrued March question October we turn to the threshold (Ametek I). response jurisdiction to a motion of the of this court to hear this Ametek, stayed pro- appeal. Ametek contends that ceedings jurisdiction and referred one issue to the ICC: court lacked over Ametek II be the reasonableness of Valley's de- cause the action did not arise out of the murrage charges. specifically The court question re- referred the district court as to jurisdiction tained over all other issues.
Subsequently,
Thus,
Ametek filed a
charges.5
com-
it maintains that the district
any ruling perti-
4. Because the ICC never
jurisdiction
issued
If the district court lacked
over this
matter,
nent
complaint,
to the unreasonable
principles
judicata
then
of res
would
matter
preclude
became moot and is
pursuing
not relevant to this
the Railroads from
col-
their
appeal.
against
lection action
because the time
(7th Cir.1990),
Judge Posner
pur- F.2d
subject matter
lacked
noted:
and this
to 28 U.S.C.
suant
appellate
exercise
cannot
therefore
1336(b)is that if
insight
section
behind
tion.6
of the
purview
question
of a district
in the course
arises
review
plenary
court exercises
This
an-
of the ICC’s
proceeding, submission
Anthuis v. Colt
jurisdiction.
over matters
instance to the district
in the first
swer
999, 1002
Corp., 971 F.2d
Operating
Indus.
appeals
to the court of
than
court rather
of the United States
Title 28
potentially
avoid a cumbersome
will
provides:
Code
judicial review.
bifurcation of
protracted
... refers a
a district court
When
Commerce Com-
Interstate
Congress
issue
do not believe
We
determination,
court which
mission
predicated the exclusive
*4
1336(b)
shall have
or issue
the
§
referred
28
court under
district
U.S.C.
to
action
of a civil
jurisdiction
exclusive
that the district court itself
circumstance
the
annul,
aside,
or sus-
enforce, enjoin, set
jurisdiction of the ICC
invoke the
must
the
any order of
part,
in whole or
pend,
the essence
making the referral. We think
arising
Commission
Commerce
Interstate
that the district court should
of the section is
such
the
out
over review of
have exclusive
if a
invokes the
even
referred matter
added).
1336(b) (1994) (emphasis
§
28 U.S.C.
jurisdiction of the ICC whenever
question of
the
referred
district
The
agency. This
a referral
court makes
the
Valley’s de-
of Panther
the reasonableness
problems
avoids
interpretation of the law
ICC, howev-
murrage rates to the ICC.
parallel proceedings
differ
arising out of
question,
this
be-
er,
directly
not
reach
did
controversy.
single
arising out of a
ent courts
demurrage tariff
the
it determined that
cause
first
the
instance.
apply to Ametek
case,
did not
stated
ruling in this
In its
question whether the
§
if
“[wjhile
Under
primary
issue raised
that
out of
arose
applied to Ametek
tariff
of the
the reasonableness
court referral
of the
reasonableness
as to the
referred issue
analyze the
demurrage charges, before we
properly ex-
district court
charges, then the
charges
deter-
we must
instant case.
jurisdiction over the
ercised
n
charges apply.
If
mine if the
rea-
charges
apply, their
do not
-to
declined
decide
itself
Ametek, Inc. v.
is not an issue.”
sonableness
stating in foot-
jurisdiction,
it had
whether
at 3
Corp.,
R.R.
No. 40664
“far from clear.”
note that
was
order) (cita-
1993) (decision
(ICC
15,
&
Jan.
Ametek, Inc.,
(Union
No.
R.R. Co. v.
Pac.
omitted).
is a
sense
This
common
tions
1995)
(M.D.Pa.
8,
Sept.
at 27 n.18
analysis
reason-
of the
logical
approach
(mem.)).
was
primary concern
court’s
relationship
ableness of
regarding the thresh-
ICC’s decision
that the
alleged debt-
Railroads and the
may have arisen
the tariff
applicability
old
or.
filed Ametek
separate complaint
from the
challenging the reasonableness
with
v.Co.
Creek
Sales
Citing
Island
Coal
the tariff
tariff rates and
of the
(6th Cir.1977),
ICC,
the dissent
1219
561 F.2d
Valley, rather than from
by Panther
pursued
1336(b)
§
interpreting
are
suggests
that
court referred
that the district
the issue
Island
“loosely.” Dissent
565-566.
§
Creek, however, did not construe
interpretation of
only with the
question in Rail-
and dealt
addressing a similar
section,
1336(a).
ICC,
Interpreting that
894
Ass’n v.
way
Executives’
Labor
2344,
28 U.S.C.
Under
during
court of
long
elapsed
which the
period has
since
sixty days
petition
must be
the ICC determination
review
filed
could
petition
note 6.
See
such
entry
favor.
order. No
after
infra
case,
we would lack
and thus
in this
filed
2321(a)
Act,
§§
28 U.S.C.
the Hobbs
6. Under
original jurisdiction.
directly
reviewable in
orders are
Appeals
engaged
Court
for the Sixth Circuit con-
evident that
the ICC was
not
petitioners
interpretation,
cluded that the
in the
case before
but instead
sought
money. They challenge
policy
“more than
to an otherwise uncontested determi-
power
the fundamental
of the Commission to
nation that
Ametek was
to a
transportation,
judicial
contract of
issue Car Service Order No. 1050
review is
promulgate
ascertaining
method used
limited to
whether the
Thus,
arbitrary, capricious
Id at 1222.
from
increases.”
case
ICC decision is
or an
precedential
persua-
circuit
no
argue
a sister
or
abuse of discretion.” The Railroads
sive value.
the court should have reviewed the
ICC’s decision de novo because the ICC was
Empire-Detroit
The dissent also cites
merely interpreting
common
agency
law
ICC,
Cyclops Corp.
Division
Steel
principles.
(3d Cir.1981),
proposition
F.2d 396
“adopted
that this court has
Island
NLRB,
Creek’s
Clothing
v. Co.
Hi-Craft
interpretation
strict
of district court
Cir.1981),
F.2d
this court stated
1336(a).”
tion under
Dissent at 565-566.
agen-
when an issue falls outside of an
supporting
position,
Far from
the dissent’s
cy’s
expertise,
area of
and the courts have
Empire-Detroit merely
widely
reiterates the
area,
special competence in that
there is little
accepted view that review of ICC decisions
agency’s
reason for the court to defer to the
upon “legal
which are based
interpretations.
case,
And in
instant
*5
grounds”
lies with the court of
Em-
acknowledged
that the “courts are the
pire-Detroit,
We therefore hold that the district court IV. had subject matter over this matter turn now to We the central issue this pursuant to 28 U.S.C. and that we case: Whether the district court erred appellate have under 28 U.S.C. accepting the ICC’s determination that the § 1291. Valley demurrage tariff could not be applied inquiry to Ametek/ This involves
III. First, questions. two did court We next consider whether the district in adopting err the ICC’s conclusion that the applied demurrage the correct standard of may applied review not be to Ame- to ruling. opinion granting its tek party because Ametek not a was summary judgment for underlying transportation the ICC and contracts? Sec- “[bjecause ond, the district court stated that it is did the court err in concluding that no Indeed, See, might argued finding e.g., that a Transp. tracts. Southern Pac. Co. v. agency superfluous; that it would have Co., been Navigation F.Supp. Matson 383 157 n. simply sufficient to determine that Ametek was (N.D.Cal.1974). 5 day-to-day transportation not a con-
563 may agents supra: assume Part IV A would which exists basis contractual other contractually. Railroads liability assert apply the tariff? to allow the Railroads agreed to the demur- separately that Ametek This court rage liability the instant ease. A. finding of facts court’s reviews the district opposing In its memorandum North River Ins. Co. for clear error. See judgment, summary for motion Railroads’ Co., 1194, 1203 52 F.3d Reinsurance CIGNA not “longstanding its recites persons who demurrage tariffs to extend Middle Atlantic stated The court in transportation con parties to are not non-liability for rule of exception to the itself states ICC decision tract.” “Certainly are free agents: warehousemen prin legal “the Commission charges con- liability for detention assume eases,” particu and cites ciple a number F.Supp. at undertaking_” tractual Charges, East Detention larly Payment contend that Ame- 1121-22. (1968), States, 332 I.C.C. ern Central agreed to be liable independently for tek (unlawful (1969) “place 335 I.C.C. aff'd They that Ametek assert tariffs. person charges9 upon a liability for detention negotiated a consultant hired railroad transporta the contract de- agreement to avoid the the failed lease tion”). Thus, the Railroads conclude murrage costs. upon precedent federal little With liability, was aware of that Ametek draw, and the both the ICC through negotiated agree- limit it chose to Mid- primarily upon relied in this case track or lease ment. absence States, 353 v. United dle Atlantic Conference for they argue, Ametek liable agreement, (unlawful (D.D.C.1972) to im- F.Supp. 1109 full cost. upon liability pose may agent court noted that transporta- party to the not a agent who was demurrage charges, but agree to be liable contract). approvingly of speaMng After *6 agreement such was no found that there decision, in the the Eastern Central Valley. The and Panther between Ameték is well “[t]he noted that law Middle Atlantic agree- rental proposed court discussed principal agent for a disclosed that an settled pointed out parties, but ment between person for to a third acts is not liable signed the parties never that the F.Supp. at agency.” 353 scope of the court noted that it. The and aborted omitted). (citations no that Ametek presented evidence Railroads ease, undisputed that it is In the instant demurrage fees. agree to ever intended transportation party not a Ametek parties dealing reveal Past perceive no error We therefore contracts. predecessor, Valley nor its Panther neither adopting ICC’s Conrail, a charged Ametek with demur- ever liability demur- determination Further, as the district rage tariff. Ametek imposed on could not be de- noted, Valley was free seek Panther consign- agent of the consignee or an as the clients, the murrage charges from Ametek’s or. shipment contracts. parties to the actual district court’s in the find no error We B. that Ametek Panther finding of fact binding into a contract entered never argue that demurrage fees. of payment Ametek to an court failed address and the district that Ametek intended is no in There evidence rule as exception general to the stated "Detention,” "demurrage” used are terms as 1920. at least as far back 8. The extends railroads, respectively,, to General, motor carriers Trade v. Director New Board See York (1920) (noting legal principles thing. that a "steam- 59 I.C.C. ship the same describe a to the contract company is not motor carrier detention apply to both discussed cannot be transportation over the rail lines and demurrage charges. and railroad demurrage”). rail carrier for held liable liability to assume contractual for the demur- U.S.C. a district court retains ex- rage charges. only proposed We have a clusive over a civil action to re- draft of a signed contract which was never view an ICC order when that order arises thus, course, and is prior However, unenforceable. Nei- out of a I conclude ther posi- we nor the district court are that the ICC’s order in this case does not fit speculate tion to as to Ametek’s motivations 1336(b). “arising language out of’ entering negotiations. into the contract initially sought Ametek to have the district We see no error the district court’s deci- court refer two issues the ICC: the rea- sion that no exception contractual Valley’s sonableness of Panther rates and the agent nonliability present rule is in this case. Valley’s reasonableness of Panther negotiating a contract to force Ametek to
V. pay demurrage charges. court, however, specifically We conclude that the district limited its court com- referral issue, mitted no error in one adopting the ICC’s deter- Panther Val- ley’s mination that may Ametek rates. Ametek separate be held liable then filed a proceeding directly charges under regarding Panther Val- with the ICC ley’s tariff. Ametek was not a reasonableness of Valley’s prac- Panther underlying contracts, transportation tices. The and it ICC consolidated this separately agree proceeding did not contractually already with the issue to ac- referred to cept liability. the district court. The ICC then issued opinion declaring Ametek not liable for Accordingly, summary judgment in fa- demurrage charges prin- under common law affirmed, vor of the ICC and Ametek will be ciples. The ICC did not rule on the reason- as will the order of denying ableness of Valley’s rates. the motion of the Interline Railroads for summary judgment. against Costs taxed disagree I majority with the that the ICC’s appellant Railroads. regarding decision liability for de- murrage charges arose out of the district ROTH, Judge, dissenting: Circuit court’s referral within meaning 1336(b). True, may have felt that respectfully I majority’s dissent from the regarding decision the reasonableness of opinion because I do not think the district Valley’s rates dictated a determina- court had to review the ICC’s tion of whether the rates at all. Nev- order in this case. ertheless, legal the ICC’s authority for mak- *7 Except provided as by Congress, otherwise ing this originate determination did not § Title juris- 28 U.S.C. 2321 vests exclusive specifically It was diction in the federal appeal courts of to presented to the separate ICC Ametek’s “enjoin suspend, part, in whole or in a rule directly action filed with the ICC. regulation, or order” of the Interstate Com- Moreover, the acknowledged ICC that it (now merce Commission Transporta- Surface going beyond was scope the expertise of its Board). § tion addition, 28 U.S.C. 2321. In and, indeed, beyond specific the referral from 2342(a), § under 28 U.S.C. “The court of the district court when it stated: appeals jurisdiction ... has exclusive to en- join, (in aside, set suspend part), whole or in We are aware that primary courts are the (5) or to validity determine the of ... all authority on agency matters such as and rules, regulations or final orders of the [ICC] However, contract law. applica- where the by § made reviewable 2321 of this title.” As bility and reasonableness of interstate rail- demonstrate, these statutes ap- the courts of transportation road issue, contracts are at peal ordinarily jurisdiction have over cases in expertise our precedents are also due which a party challenge seeks to 10601(d). ICC consideration. See 49 U.S.C. decision. The ICC’s invocation here of 49 U.S.C. recognize I 10501(d) exceptions that there are § to significant is because it demon- general rule. For example, under 28 strates that the relying Commission was under the order jurisdiction to review ICC’s referral, the but on court’s district on the 1336(b). § the authority to review inherent own ICC’s rail carriers.1 of supported a similar My rules is conclusion confronted the Sixth Circuit situation which af- Furthermore, district court the when I.C.C., 561 v. in Island Creek Coal Sales Co. the authority to consider ICC’s the firmed Creek, (6th Island F.2d 1219 suggested court liability, district the of issue juris of interpreted scope the the the court complaint separate Ametek’s it was that 1336(a), pro § which 28 U.S.C. diction under authority to the ICC with provided of ICC orders court review vides for district charges. liability for the rule on money or collec payment of that concern the that first noted The court challenged the shippers of fines. The 11701(b) permits § 49 U.S.C. [Because certain demur- power promulgate to ICC’s complaints only those to dismiss the case involved the Since increases. reasonable fail to “state it that with filed payment validity order of the ICC’s for and.action,” the investigation grounds payable, money just the amount and not obligated to statutorily address ICC case was that Circuit held Sixth by Ametek. complaints filed separate jurisdic exclusive appellate court’s Inc., No. R.R. v. Pac. Co. Union issue to of the Id. 1222. nature tion. (mem.). 8, 1995) (M.D. Sept Pa. at 15 promulgate power to ICC’s be reviewed —the to state: court went merely of the the amount and not increases Notwithstanding parties’ beyond placed the increase — jurisdiction exception over jurisdictional scope narrow that this Court 1336(a). §by to 28 U.S.C. pursuant created Decision to note I am constrained § analogous this case be- Island Creek Only the from clear.... is far scope cause it involves re- demurrage rates was §by court review created for district in this case. While to the ICC ferred . Moreover, adopted Creek’s have Island for the ICC proper may have been interpretation of district strict of tariff the threshold address 1336(a) Empire-Detroit Steel § tion under presented as issue was applicability, I.C.C, Corp. v. 659 F.2d Cyclops Division of by Am- complaints result Cir.1981).2 apply no I see reason filed argued that the ICC 1336(a) It thus could etek. § interpretation a strict 1336(b). not arise out does Decision ma- interpretation to referral looser case, any challenge 1336(b) so that seem, however, interpret in this jority pursued been contrary have Decision should that we I believe loosely. strictly limit appropriate interpret should jurisdiction to appellate district court Co., n.18 at 27 No. 90-1396 R.R. Pac. Union statute. language of the express added). agree with the I (emphasis argue that majority’s that one could re Finally, disagree court’s statement I with Railway authority opinion consider Ametek’s Judge ICC’s Posner’s liance on I.C.C., stem did not liability for Labor Executives’ Association *8 RLEA, (7th In district court’s F.2d 915 solely from the referral interpreted rea- authority consider the Circuit fact, Seventh the ICC’s 1336(b) that and concluded § Valley’s practices language of sonableness positive some must make proceeding district courts separate from Ametek’s stemmed invoke ICC order conclude, as a “reference” I directly with filed by provided the referral lacked that the district consequence, agree with "We Empire-Detroit stated: 10501(d) juris- 2. pertinent part: "The § states 1. that appeals have held transporta- those courts ... over diction of the Commission legal or denying reparations on carriers, review orders provided the remedies by rail by petition for review rates, grounds is available respect classifi- this subtitle with carriers, Empire-Detroit, appeals.” rules, in the cations, practices of such courts at 397. F.2d exclusive.” purpose of such a statute. The reference is parties “so that the can be in no doubt of UNITED STATES America go judicial to for
which court to review of v. order.” Id. at 917.3 In ICC a.situation us, COCIVERA, Appellant. such as case before where the John ICC simultaneously considered a UNITED STATES of America by pro- the district court and a referred ICC, directly ceeding with the it filed seems v. bright helpful to me that a line rule is most PRODUCTS, U.S. HEALTH parties determining where to file INC., Appellant. only I appeal. submit those issues appealed to should be UNITED STATES of America expressly which were referred to the ICC by district court. I do not concur in v. majority’s implication that the word “or- NORTH AMERICAN HEALTH der,” as it is used in is broader INDUSTRIES, INC., scope the word than “issue.” To the Appellant. contrary, provides I believe statute solely district court review of those issues it UNITED STATES of America Any
has referred to the ICC. other issues v. by parallel in a proceed- decided here, ing, ap- such as we have should be PRODUCTS, AMERICAN HEALTH pealed appeals. to the court of INC., Appellant. application of interpreta- strict such UNITED STATES of America tion of would reduce the chance appeals wrong are made to the court. v. only language need look to Counsel PRODUCTS, BENEFICIAL HEALTH referral to district court’s determine whether INC., Appellant. issue was reviewable a dis- 1336(b). trict court under If the issue was UNITED STATES of America specifically not one referred to v. court, it only would be reviewable appeals. regime the court of This would COMPANY, UNIVERSAL MEDICAL uncertainty among parties eliminate INC., Appellant. complicated inquiry obviate over the exact authority source of the ICC’s to determine a UNITED STATES of America issue, referral, separate proceeding, or some other statute. PRODUCTS, MID-ATLANTIC HEALTH propriety Because the Valley’s INC., Appellant. practices was not an issue referred to the court, I conclude that the Nos. 96-1071 to 96-1077. appeal of that issue should have come direct- United Appeals, States Court of ly reason, to the court of For this I Third Circuit. find that the district court should not have heard from the ICC and I re- Argued July 1996. spectfully dissent. Decided Dec. *9 3. The issue employed. in RLEAwas whether the transmittal The court concluded that it was a question by bankruptcy of a court to the ICC was a "referral" if the word "refer” was not