United States v. ICCUnited States v. ICC
Windsor F. Cousins argued the cause for the Pennsylvania Railroad Co. et al., appellees. With him on the brief were Hugh B. Cox, Robert C. Barnard, Charles P. Reynolds and Charles Clark.
MR. JUSTICE BLACK delivered the opinion of the Court.
It is contended here that the United States as a shipper is barred from challenging in federal courts an Interstate Commerce Commission order which denies the Government a recovery in damages for exaction of an allegedly unlawful railroad rate. Other contentions if sustained would deny federal courts all power to entertain an action by any shipper challenging a Commission order denying damages to the shipper.
During the war, existing tariffs of many railroads embodied wharfage charges to compensate the railroads for moving goods from railroad cars to piers and from piers to railroad cars. When the United States took over certain piers at Norfolk, Virginia, it began to perform these wharfage services for itself and requested the railroads to make the United States an allowance for the expenses incurred in performing the services. The railroads refused to make an allowance. Upon this refusal the Government requested the railroads to perform the services themselves. The railroads refused to perform the services.
The United States filed with the Interstate Commerce Commission a complaint against the railroads charging that exaction of pay for unperformed services was unjust, unreasonable, discriminatory, excessive, and in violation of certain sections of the Interstate Commerce Act.1 The
The United States brought this action in a United States District Court to set aside the Commission order. The complaint charged that the Commission‘s conclusions were not supported by its findings, that the findings were not supported by any substantial evidence, that the order was based on a misapplication of law and was “otherwise arbitrary, capricious and without support in and contrary to law and the evidence.” The Interstate Commerce Commission was made a defendant. The United States was also made a defendant because of a statutory requirement that any action to set aside an order of the Interstate Commerce Commission “shall be brought . . . against the United States.”
In this Court the Commission and the railroad intervenor defendants support the District Court‘s dismissal for the reasons given by that court. Alternative reasons are also urged. We hold that the dismissal was error and that the case should have been considered on its merits.
First. There is much argument with citation of many cases to establish the long-recognized general principle that no person may sue himself. Properly understood the general principle is sound, for courts only adjudicate justiciable controversies. They do not engage in the academic pastime of rendering judgments in favor of persons against themselves. Thus a suit filed by John Smith against John Smith might present no case or controversy which courts could determine. But one person named John Smith might have a justiciable controversy with another John Smith. Thus illustrates that courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.
While this case is United States v. United States, et al., it involves controversies of a type which are traditionally justiciable. The basic question is whether railroads have illegally exacted sums of money from the United States. Unless barred by the statute, the Government is not less entitled than any other shipper to invoke administrative and judicial protection. To collect the alleged illegal exactions from the railroads the United States instituted proceedings before the Interstate Commerce Commission. In pursuit of the same objective the Government challenged the legality of the Commission‘s action. This suit therefore is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads. The order if valid would defeat the Government‘s claim to that
Second. It is contended that the provisions of the Act making the Government a statutory defendant in court actions challenging Commission orders, show a congressional purpose to bar the Government from challenging such orders. Legislative history is cited in support of this contention. If the contention be accepted, Congress by making the Government a statutory defendant in such cases has deprived the United States as a shipper of powers of self-protection accorded all other shippers. We cannot agree that Congress intended to make it impossible for the Government to press a just claim which could be vindicated only by a court challenge of a Commission order. See United States v. San Jacinto Tin Co., 125 U. S. 273, 279.
In support of their contention that Congress did not intend for the Government to press its claims as a shipper, the Commission and railroads emphasize the anomaly of having the Attorney General appear on both sides of the same controversy. However anomalous, this situation results from the statutes defining the Attorney General‘s duties. The Interstate Commerce Act requires the Attorney General to appear for the Government as a statutory defendant in cases challenging Commission orders.
Although the formal appearance of the Attorney General for the Government as statutory defendant does create a surface anomaly, his representation of the Government as a shipper does not in any way prevent a full defense of the Commission‘s order. The Interstate Commerce Act contains adequate provisions for protection of Commission orders by the Commission and by the railroads when, as here, they are the real parties in interest. For, whether the Attorney General defends or not, the Commission and the railroads are authorized to interpose all defenses to the Government‘s charges and claims that can be interposed to charges and claims of other shippers. In this case the Commission and the railroads have availed themselves of this statutory authorization. They have vigorously defended the legality of the allowances and the validity of the Commission order at every stage of the litigation.
Third.
The Commission and the railroads contend, however, that
“Any person or persons claiming to be damaged by any common carrier. . . may either make complaint to the commission . . . or may bring suit . . . for the recovery of the damages . . . in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.”
The contention of the Commission and the railroads as to § 9 is this. A shipper has an alternative. He may bring his action before the Commission or before the courts. But he must make an election. If he elects to “bring suit” in a court and is unsuccessful, he retains the customary right of appellate review. If he elects to “make complaint to” the Commission, as the Government did, and relief is denied, he is said to be barred by the statutory language of § 9 from seeking any judicial review of the Commission order. Under the contention the order is final and not reviewable by any court even though entered arbitrarily, without substantial supporting evidence, and in defiance of law.
Such a sweeping contention for administrative finality is out of harmony with the general legislative pattern of
Furthermore, the section‘s careful provision for judicial protection of railroads against improper Commission awards argues against interpretation of the same section to deny to shippers any judicial review whatever. Under the suggested interpretation a shipper could recover nothing if the Commission decided against him. But a Commission award favorable to a shipper is not final or binding upon the railroad. Such an award “only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. . . . Nor does it in any wise work a denial of due process of law.” Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 430. And see Pennsylvania R. Co. v. Weber, 257 U. S. 85, 90-91. It hardly seems possible to find from the language of § 9 a congressional intent to guarantee railroads complete judicial review of adverse reparation orders while denying shippers any judicial review at all.
What we have said would dispose of the § 9 contention but for the argument of the Commission and the railroads that their suggested interpretation of the section is required by this Court‘s holding in Standard Oil Co. v. United States, 283 U. S. 235, and other cases that followed it. In that case the Standard Oil Co., a shipper, was denied the right to judicial review of a Commission order denying reparations. Judicial review was denied on four grounds: (1) The order in the Standard Oil case denying reparations was “negative” in form, and was therefore beyond judicial appraisal under the
The Standard Oil interpretation of § 9 denying shippers any judicial review was made by a court usually careful to protect against arbitrary or unlawful administrative action. And, as shown, the court there first satisfied itself that the Commission order was not the product of an unlawful exercise of power by the Commission. Furthermore, the “negative order” philosophy, then at its peak, clearly barred review of all orders denying reparations. Consequently, the Standard Oil § 9 interpretation barred judicial review of no class of Commission orders except orders already immune from such review under the “negative order” doctrine. The Standard Oil holding was thus clearly supported by and rooted in the now rejected “negative order” doctrine.5
Another reason for the Court‘s construction of § 9 in the Standard Oil case was that Standard‘s damage claim
“It is to be remembered that, by electing to call on the Commission for the determination of his damages, plaintiff waived his right to maintain an action at law upon his claim. But the carriers made no such election. Undoubtedly it was to the end that they be not denied the right of trial by jury that Congress saved their right to be heard in court upon the merits of claims asserted against them. The right of election given to a claimant reasonably may have been deemed an adequate ground for making the Commission‘s award final as to him.”
And see Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U. S. 500, 507-508.
Thus, a crucial support for the Court‘s holding in the Standard Oil and Brady cases was that the shippers in those cases could have commenced original § 9 actions in the district court. But it has been established doctrine since this Court‘s holding in Texas & P. R. Co. v. Abilene Oil Co., 204 U. S. 426, that a shipper cannot file a § 9 proceeding in a district court where his claim for damages necessarily involves a question of “reasonableness” calling for exercise of the Commission‘s primary jurisdiction.6 The Government‘s claim here does involve such a question of “reasonableness.” For the allowances
Ashland Coal Co. v. United States, 325 U. S. 840, is the only case in this Court that relied on the Standard Oil decision after we had abandoned the “negative order” doctrine. Cf. Allison & Co. v. United States, 296 U. S. 546. And it is doubtful if the shipper in the Ashland Coal Co. case could have sought reparations in a district court under the “primary jurisdiction” doctrine. In affirming without argument the judgment of a three-judge court in the Ashland Coal Co. case, this Court‘s per curiam opinion cited two pages of the Standard Oil opinion that support the interpretation of § 9 urged here by the Commission and railroads. It is a fair inference that the pages were cited for that interpretation although other grounds for the Court‘s decision also appear there. One such ground was that a three-judge court is an improper
We cannot accept the Ashland Coal Co. per curiam holding nor the Standard Oil case on which it rested as requiring the interpretation of § 9 which the railroads and Commission here urge. Our acceptance of that interpretation would mean that a shipper who submitted to the Commission only a question of the reasonableness of rates could have an adverse order reviewed by a court, Skinner & Eddy Corp. v. United States, 249 U. S. 557, 562-563, while a shipper who asked for that administrative determination plus reparations could get no judicial review at all. Terminal Warehouse Co. v. Pennsylvania R. Co., supra, at 507-508. On any ground except the now discarded “negative order” doctrine, this would appear to be an unsupportable and totally illogical limitation of the congressional command for judicial review.8 See Chicago Junction Case, 264 U. S. 258, 269-270; Southern R. Co. v. Tift, 206 U. S. 428, 440. Accordingly we hold that § 9 does not impair the right of shippers to obtain judicial review of adverse Commission orders under
Fourth. For reasons already stated we hold that a Commission order dismissing a shipper‘s claim for damages
The Urgent Deficiencies Act from which
The provisions of the Urgent Deficiencies Act here considered derive from a 1910 congressional enactment creating the Commerce Court, defining its powers and providing for review of its judgments.10 That court was given jurisdiction of all actions to enjoin, set aside and modify Commission orders. Section 2 provided for direct appeals from the Commerce Court to the Supreme Court. The purpose of creating the Commerce Court with such direct appeals was expeditions of final determination of the validity of certain types of Commission orders. This expedition was sought for orders of national or widespread interest, such, for example, as railroad rate orders. Congress saw the necessity for an accelerated appellate procedure to prevent railroads from nullifying the effect of such orders in prolonged litigation.11 The Commerce Act itself indicated that the same expedition necessary in cases affecting the public generally was not
Provisions of the Urgent Deficiencies Act of 1913 abolished the Commerce Court and transferred its jurisdiction to district courts composed of three judges. In considering this Act Congress was urged to bear in mind the necessity for providing a forum that could expeditiously review Commission orders of widespread importance.14 But in passing the 1913 Act Congress denied power to three-judge courts to enforce Commission orders for the payment of money.15 And in a case not involving reparations this Court held that orders relating merely to the payment of money are not likely to be of sufficient public importance to justify use of the three-judge procedure. See United States v. Griffin, 303 U. S. 226, 233, 234-237. But cf. El Dorado Oil Works v. United States, 328 U. S. 12, 18-19; United States v. Jones, 336 U. S. 641, 647. The Urgent Deficiencies Act with
We have frequently pointed out the importance of limiting the three-judge court procedure within its expressly stated confines.16 We are confident that in holding that one judge rather than three should entertain cases challenging Commission reparation orders we interpret the congressional expediting procedure and the Interstate Commerce Act in accordance with their basic purpose.
Fifth. There remains the question of the proper disposition of this case. Three judges heard it. This, however, is no reason for dismissal of the cause. See Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 381. If the allegations of the bill are true, the Commission‘s order cannot stand. Chicago Junction Case, 264 U. S. 258, 264-266. Since the District Court did not pass on the merits of the allegations of the complaint, the cause is remanded to it for that purpose.
Reversed and remanded.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE JACKSON and MR. JUSTICE BURTON join, dissenting.
Four times shippers have asked this Court to recognize the right to review orders of the Interstate Commerce Commission denying claims for reparations against carriers; four times the United States resisted the right to such judicial review; four times this Court sustained the United States and held that the courts were without jurisdiction to review orders of the Commission denying reparations. Twice the decisions followed full argument: Standard Oil Co. v. United States, 283 U. S. 235, in which the bar of the Interstate Commerce Act to such review was expounded, and Brady v. United States, 283 U. S. 804, which relied on the Standard Oil case decided only a few weeks before. Twice thereafter the dismissal by district courts, for want of jurisdiction, of attempts to review such reparation orders was summarily affirmed without argument, so definitively had the Standard Oil case settled the matter. Allison & Co. v. United States, 296 U. S. 546, affirming 12 F. Supp. 862; Ashland Coal & Ice Co. v. United States, 325 U. S. 840, affirming 61 F. Supp. 708, decided less than four years ago. In order to recover a money claim of its own, the Government in this case has suddenly shifted a position consistently maintained by it for nearly twenty years against all other shippers and urges the right to review an order denying reparations. Indeed, at the very same time that the Government
We are vouchsafed no explanation for the fact that the United States should have urged four times upon this Court, and contemporaneously with these proceedings in another district court, that an order resulting from a reparation proceeding before the Interstate Commerce Commission is not reviewable, and yet seeks review in this instance. The only explanation that lies on the surface is that in all the other cases the United States was resisting the claims of private shippers, while in this case the Government itself is the shipper. No doubt enlightenment sometimes comes through self-interest. But this Court‘s construction of the Interstate Commerce Act, long matured in a series of cases, ought not to shift with a shift in the Government‘s interest. The Interstate Commerce Commission rightly protests against it. To yield to the Government‘s new contention is not only to reverse a settled course of decision. To do so is to mutilate the whole scheme of the Interstate Commerce
One would suppose that four uniform decisions of this Court, rendered after thorough consideration of a statutory scheme, constitute such a body of law as not to be overruled, wholly apart from any argument that this Court‘s construction of legislation is confirmed by Congress by reenactment without change. The Transportation Act of 19402 reenacted the relevant provisions of the Interstate Commerce Act after this Court had ruled three times that a shipper who has unsuccessfully asked the Commission for damages is bound by its determination and cannot thereafter have another go at it in the courts. The construction which these decisions have made should be adhered to not only because the precise issue has already been decided by this Court but because the Interstate Commerce Act requires it. “When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional enactment under which judicial review is authorized.” Labor Board v. Cheney California Lumber Co., 327 U. S. 385, 388. It will hardly be suggested that the Constitution requires judicial review of a reparation order by the Commission. Such a notion is precluded by Cary v. Curtis, 3 How. 236, and the whole unfolding of administrative law during the hundred years since that decision. This is not one of those exceptional cases where “the sanction afforded by judicial proceedings” is implied in the guaranty of due process of law. Ng Fung Ho v. White, 259 U. S. 276, 284-5. Therefore, it is as true of the Interstate Commerce Act as it is of the National Labor Relations Act, that “Congress was entitled to determine what remedy it would provide, the way
In the reticulated scheme for enforcement of the new rights and obligations created by the Interstate Commerce Act, Congress clearly indicated where the judiciary comes in and where the judiciary is to keep out. More particularly, Congress has provided in detail for judicial review in certain aspects of reparation claims that come before the Commission; it has afforded an alternative procedure as between Commission and courts in some instances; it has specifically precluded resort to judicial review where the shipper has chosen resort to the Commission. If the scheme of legislation that Congress has devised is to be respected, judicial review of the Commission‘s order denying it reparations is not open to the Government.
A summary of what this case involves should precede a detailed analysis of the Act, so far as relevant to its disposition.
At the time this controversy arose it had long been the practice for railroads reaching Atlantic ports to absorb the cost of wharfage and handling services furnished by them for goods destined for shipment overseas. This applied only to services rendered on so-called public wharves, excluding, that is, services so required on wharves operated by a shipper himself. The wharves in question were piers owned by the Government, but leased by it for commercial peacetime operations as public terminal facilities of the railroads. Up to June 15, 1942, these piers were operated by the Transport Trading and Terminal Corporation, as agent of the defendant railroads. War conditions made it necessary for the Government to cancel its leases with the Terminal Corporation and, on June 15, 1942, it took over the operation of these piers for the movement of
Claiming to be damaged by the refusal of the railroads to grant allowances for the Government‘s handling of its goods on its own piers, when it excluded the Terminal Corporation and took over the piers, the Government initiated these proceedings before the Commission for reparations under § 8 of the Interstate Commerce Act.3 It filed its complaint under §§ 9 and 13 of that Act.4 Claiming that the rates under the existing tariffs were unjust and unreasonable, and that it was discriminated against because other shippers were furnished wharfage and handling services which it performed at its own expense, the Government sought relief against continuance of alleged violations of §§ 1 (5) (a), 1 (6), and 15 (13) of the Interstate Commerce Act. The complaint was sustained by Division 2, with one Commissioner dissenting. United States v. Aberdeen & Rockfish R. Co., 263 I.C.C. 303. The full Commission reversed the findings of Division 2 and ordered the complaint dismissed, four Commissioners dissenting. 264 I.C.C. 683. On reargument the full Commission adhered to its findings, five Commissioners dissenting.5
Invoking the procedure of the Urgent Deficiencies Act of 1913, the Government then sought to set aside the order of the Commission dismissing the Government‘s complaint. (Act of October 22, 1913, 38 Stat. 219-21, now
To ascertain whether an order of the Interstate Commerce Commission is open to judicial review, it should rigorously be borne in mind that jurisdiction to review such an order must have been conferred by Congress. To assume that an order of the Commission for which reviewing power is not conferred, is presumably reviewable by the courts is to start with the answer of the problem to be solved. Unless Congress has chosen to give the courts oversight of a determination by the Commission, as here, the Constitution does not require it. If Congress has made no grant of power to courts to review the Commission‘s order denying a claim for reparation, and, in fact, has explicitly withheld resort to the courts after such denial by the Commission, it is wholly immaterial that as to other types of orders the right to review has been given to the courts, or that a determination by the Commission closely related to reparations, but not in fact a claim for damages, does not bar access to the courts.
First. Judicial review of an order by the Commission dismissing a complaint for reparations has heretofore been urged exclusively on the basis of the Urgent Deficiencies Act. The jurisdiction of the district court in this case was invoked under that Act. This is the sole basis of jurisdiction urged by the Government here in its comprehensive brief and argument, and the Court rejects it. It rightly rejects it. But the compelling considerations for this rejection demand a further analysis of the structure and details of the jurisdictional provisions relating to orders of the Interstate Commerce Commission. Such analysis is essential to lay bare the equally compelling considerations against jurisdiction under the general equity powers of the district courts.
Section 8 of the Interstate Commerce Act created a civil liability of carriers for damages caused by violation of the new obligations imposed by that Act. In the absence of specific remedies, it would be fair to assume that these new rights were enforceable in the district courts under their general jurisdiction over suits “arising under any Act of Congress regulating commerce.”
As to a proceeding before the Commission, whether for damages or for a rate adjustment, § 13 defines the procedure;6 the role of the courts in relation to the Commission‘s orders is defined by §§ 167 and 17 (9).8 Section 16 fixes the time for filing a complaint either in the courts or before the Commission; it also provides for the enforcement of an order awarding damages, limiting the time within which such an action must be brought, and stating the effect to be given to the Commission‘s award. Since 1940, the provisions of the Urgent Deficiencies Act of 1913 (38 Stat. 219-21), conferring on the district courts the jurisdiction in suits on orders of the Commission theretofore vested in the abolished Commerce Court, were
By this scheme of law enforcement, carefully apportioned between Commission and courts, Congress has provided that insofar as any order, provided it is not one for money damages, can be enjoined, set aside and enforced it must be under the provisions dealing with suits to enforce, enjoin, or set aside orders of the Commission, “but not otherwise.” 54 Stat. 916,
If the dismissal of a reparation complaint is not within the phrase “any order” in § 17 (9) of the Interstate Commerce Act, it is also not within the “any order” phrase of the sections of Title 28 (§ 41 (28) and § 46 of the 1946 ed., and §§ 1336 and 2324 of the present Title 28). which embody the review provisions formerly in
In the Los Angeles & S. L. R. Co. case it was held that the district court had no jurisdiction to review a final valuation order — neither by virtue of the Urgent Deficiencies Act, nor under its general equity powers. This result was reached partly because of want of equity, but also because it was found, upon full consideration, that not every order of the Commission is “any order” within the jurisdictional authorization of the Interstate Commerce Act and the applicable provisions of the Urgent Deficiencies Act. So, also, an order refusing to increase the allowance for railroad mail compensation is not reviewable under the Urgent Deficiencies Act. United States v. Griffin, 303 U. S. 226; see also Great Northern R. Co. v. United States, 277 U. S. 172. The ground given in the Griffin case was that, although there was a case or controversy and final action, this type of order was not within the Urgent Deficiencies Act — and this, as we reaffirmed the other day, quite apart from the obsolete “negative order” doctrine. United States v. Jones, 336 U. S. 641, 647. Finally — and it ought to be decisive — on four occasions this Court has held that the Commission‘s refusal to award reparations, when the shipper, as here, proceeded under § 13 of the Act, is not reviewable. Standard Oil Co. v. United States, 283 U. S. 235; Brady v. Interstate Commerce Comm‘n, 43 F.2d 847, affirmed per curiam after argument, Brady v. United States, 283 U. S. 804; Allison & Co. v. United States, 12 F. Supp. 862, affirmed per curiam, 296 U. S. 546; Ashland Coal & Ice Co. v. United States, 61 F. Supp. 708, affirmed per curiam, 325 U. S. 840. These decisions were based upon the fact that the Interstate Commerce Act precludes review by the courts when the shipper had first sought damages before the Commission.
But there is another reason why reparation orders are not reviewable under the three-judge court provisions. Section 17, incorporating the Urgent Deficiencies’ mode of review, is not concerned with reparation claims but with a wholly different matter. Reparation claims have been specifically dealt with in other sections of the Act, and, to the extent that review was intended, it is specifically provided for. By the original Act, orders for the payment of money were enforceable in equity. Interstate Commerce Act of 1887. § 16, 24 Stat. 379, 384-385.
In 1910, this identical jurisdiction was transferred from the circuit courts and conferred upon the newly created Commerce Court, but it was expressly provided: “Nothing contained in this Act shall be construed as enlarging the jurisdiction now possessed by the circuit courts of the United States. . . .” 36 Stat. 539. This provision was inserted in the legislation so “that the creation of this court shall not be construed as giving to the Commerce Court any greater jurisdiction than is now possessed by the circuit courts of the United States over similar matters.” H. R. Rep. No. 923, 61st Cong., 2d Sess. 7 (1910); see S. Rep. No. 355, 61st Cong., 2d Sess.
Therefore, even putting to one side § 9, the dismissal of the reparation complaint was clearly not within the words “any order” in § 17 (9): (1) if it were within § 17 (9) it would be reviewable only by a three-judge court.
Second. The only other provision in the Interstate Commerce Act which affords judicial review of an order is § 16. That section, however, comes into force only when an award for damages is made. Rejection by the Commission of a money claim is outside the express terms of that section and not within what can fairly be implied from any language in it. A general argument of fairness is made that since this section provides for court review when an award is made where the carrier loses, the shipper is entitled to review when the carrier wins. Leaving aside, temporarily, the fact that what Congress has written in § 9 forecloses court review, to yield to such an inference in favor of a shipper whose claim is denied raises insuperable difficulties once we leave the text and scheme of the Act and go at large as to court review. Thus there would be no limit on the time in which review of the Commission‘s dismissal of the reparation claim could be brought, whereas § 16 fixes a time limit for suits against the carrier on awards by the Commission. 43 Stat. 633, as amended,
Money damages are part of the regulatory scheme. Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 258. But while the Commission may determine that rates for the future be reduced, it is not required to award damages for the higher rates in the past. Thus it is not at all strange that its action be not subject to court review where the shipper has failed to persuade the Commission to award damages. Baltimore & Ohio R. Co. v. Brady, 288 U. S. 448, 458. Especially is this true when Congress has provided for an alternative procedure whereby the shipper would have been able to go to court. Therefore, even without any explicit provision it would be a reasonable inference that Congress did not intend
Even though Congress provided alternate methods of securing damages, and authorized court review when the Commission sustained a money claim, but not when it denied such a claim, Congress did not leave merely to rational inference that upon denial of a money award by the Commission, the shipper could not again try his luck in court. By § 9 Congress gave the shipper his choice of forum: he could ask for damages either from the Commission or a court, but could “not have the right to pursue both of said remedies“; he “must in each case elect which one of the two methods of procedure herein provided for he . . . will adopt.” 24 Stat. 382, as amended,
Brady, 288 U.S. 448, 458-59. Since Congress gave the shipper the alternative of administrative or judicial relief, there can be no question but that Congress was constitutionally free to make final the administrative choice.
Third. Since access to court review of an order denying reparations was barred by the Interstate Commerce Act, such review is not available under the general jurisdiction of the district courts.
(1) The specific terms of
(2) Because of these provisions, review of reparation claims differs from the situation in Shields v. Utah I.C.R. Co., 305 U.S. 177. There the Court was not confronted with an enactment which said that if a person sought the Commission‘s aid he could not thereafter go to court. The Shields case is inapposite on another ground. By determining that a certain railroad was subject to the Interstate Commerce Act, the Commission placed the railroad under the active hazards of criminal sanctions. Equity was invoked for one of its ancient functions of staying a multiplicity of criminal prosecutions to avoid irreparable harm. See 305 U.S. at 183, and Switchmen‘s Union of North America v. National Mediation Board, 320 U.S. 297, 306. Here there is not the remotest ground for appeal to equity. It is merely a matter of dollars and cents — not the hazards of criminal prosecution — and an insistence on having two modes of recovering money damages when Congress has given shippers the choice of one or the other. There is a total absence of any of the traditional grounds for equitable relief. Cf. United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 314-5.
Nor is review permitted under
Fourth. We now turn to
The other method open to a shipper who desires to avail himself of the court remedy given by
The conclusion reached by a reading of the statute is reenforced by the adjudicated cases. In Standard Oil Co. v. United States, 283 U.S. 235, three distinct grounds were given for affirming the district court‘s dismissal for want of jurisdiction of a suit to review an order of the Commission dismissing a claim for damages. One reason was that the order was “a negative order“; that reason has been displaced by Rochester Telephone Corp. v. United States, 307 U.S. 125. But the Standard Oil decision was left intact by the Rochester decision, for the opinion in that case explicitly pointed out that “the main basis” of the Standard Oil decision “was not the `negative order’ doctrine but [that] the statutory scheme dealing with reparations” precluded review of an order denying money damages. 307 U.S. at p. 140, n. 23. The “statutory
In view of the fact that the Rochester case expressly saved that phase of the Standard Oil decision which is decisive of the problem before us now — “the statutory scheme dealing with reparations” — the Court‘s holding that the Rochester case impliedly overruled the Standard Oil case means of course that to this extent the Court today overrules the Rochester case, not that the Rochester case had overruled the Standard Oil case, wholly apart from the fact that the Standard Oil decision was the
And to what end these dislocations of so many decisions? We have been vouchsafed no considerations of policy, no revealed injustice flowing from the construction thus far placed upon the reparations provision of the Interstate Commerce Act, no difficulties in its administration,
The result reached in the Standard Oil case was not limited to controversies which did not involve the “primary jurisdiction” doctrine. The district court in that case did assume arguendo that the issue involved nothing which required administrative determination before it addressed itself to the basic jurisdictional question. See Standard Oil Co. v. United States, 41 F.2d 836. On appeal, however, this Court did not confine in any way the bar imposed by
The suggestion at this late date that the election so specifically defined by
The scope of the Standard Oil and Brady cases is made unambiguously clear by reliance on them for the decision in Allison & Co. v. United States, 296 U.S. 546, 664, and Ashland Coal & Ice Co. v. United States, 325 U.S. 840. In each case issues were involved which indubitably fell under the requirement of the “primary jurisdiction” doctrine. In each of these cases the shipper relied on the claim that his case was distinguishable from the Standard Oil and the Brady cases. The same distinctions which are now advanced by the Government were then advanced by the shipper but resisted by the Government. The Government then rightly insisted that the Standard Oil and the Brady cases could not be restricted to situations where the “primary jurisdiction” doctrine was inoperative and that the decision in those cases — that
I would affirm.
NOTES
[1]
[2]
[3] The substance of
[4] The Administrative Procedure Act, 60 Stat. 237, 243,
“SEC. 2. . . . (d) ORDER AND ADJUDICATION. — `Order’ means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing. `Adjudication’ means agency process for the formulation of an order.”
“SEC. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion —
“(a) RIGHT OF REVIEW. — Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.”
[5] Mr. Justice Cardozo so treated the Standard Oil holding in I.C.C. v. United States, 289 U.S. 385, 388, a case decided prior to this Court‘s repudiation of the “negative order” doctrine. He there said that in denying reparations “the Commission speaks with finality. Its orders purely negative — negative in form and substance — are not subject to review by this court or any other.” Authorities for this statement were “negative order” cases. These same cases were relied on by the court in a later case that referred with approval to the Standard Oil § 9 interpretation. Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 507-508.
[6] See cases collected in Rochester Tel. Corp. v. United States, 307 U.S. 125, 139, n. 22, and Armour & Co. v. Alton R. Co., 312 U.S. 195; Skinner & Eddy Corp. v. United States, 249 U.S. 557, 562.
[7] The Commission argues that § 9 does authorize a shipper to initiate damage claims in a district court even though the claim necessarily involves questions upon which the Commission‘s primary jurisdiction must be invoked. The railroads more cautiously say that such suits can be filed upon an initial showing by a shipper that it might work a hardship on a shipper for the court to refuse to entertain the case. Both contentions run counter to this Court‘s previous cases. Particular circumstances were held sufficient in one case to justify a court in staying further judicial proceedings to await Commission action. Mitchell Coal Co. v. Pennsylvania R. Co., 230 U.S. 247, 266-267. The same course was followed in another case, over the Commission‘s objection, where the action was in assumpsit, and the administrative problem did not emerge until the case was in course of litigation. Tank Car Corp. v. Terminal Co., 308 U.S. 422, 432.
[8] The “negative order” doctrine was first adopted by this Court in Procter & Gamble v. United States, 225 U.S. 282, decided in 1912. A shipper there brought action in the Commerce Court to set aside a Commission order dismissing the shipper‘s complaint. The complaint was that the charges were unjust and unreasonable. The Commerce Court was asked to annul the Commission‘s order of dismissal, to enjoin future collection of the charges, and to require the railroads to repay sums alleged to have been wrongfully collected from the shipper. The Commerce Court reviewed the action of the Commission and on the merits declined to grant the shipper the requested relief. This Court held that this “negative” order was not reviewable at the instance of the shipper. The Court‘s ruling brought sharp criticism in Congress. Corrective legislation was proposed, exhaustive committee hearings were held, debate was taken to the floor of Congress. In spite of the strenuous efforts to get Congress to repudiate the “negative order” doctrine, Congress in 1913 declined to act. But in all of the congressional hearings and debates on the subject, the crities of the Procter & Gamble “negative order” rule urged without contradiction that repudiation of the “negative order” rule would afford shippers the same judicial review of reparation and other orders then afforded to railroads. Not once do we find the argument suggested that
This Court nevertheless abandoned the “negative order” doctrine in 1938, and in doing so effectively overruled a host of prior decisions. See cases collected in footnote to Mr. Justice Butler‘s opinion in the Rochester case, 307 U.S. 146, 148. The effect of today‘s decision is merely to recognize that the Standard Oil doctrine, barring judicial review to shippers, cannot stand consistently with the Rochester case which itself overruled the Procter & Gamble and other “negative order” decisions. It was therefore the Rochester case, not today‘s decision, that overruled a line of cases and granted relief where Congress had declined to afford any. H.R. Rep. No. 1012, 62d Cong., 2d Sess. 1-4 (1912); Hearings before the subcommittee of the Senate Committee on Appropriations on H.R. 7898, 63d Cong., 1st Sess. 140-148 (1913); Hearings before the subcommittee of the Senate Committee on Appropriations on H.R. 7898, 63d Cong., 1st Sess. 305-343 (1913); Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 25596 and H.R. 25572, 62d Cong., 2d Sess. 1-298 (1912); 50 Cong., Ree. 4532-4537, 4542-4545 (1913).
[9] 38 Stat. 208, 219, 220;
[10] 36 Stat. 539.
[11] See President‘s Message to Congress, 45 Cong. Rec. 7567-7568 (1910).
[12] S. Rep. No. 355, 61st Cong., 2d Sess. 1-2 (1910).
[13] See Procter & Gamble v. United States, 225 U.S. 282; Texas & P.R. Co. v. Abilene Oil Co., 204 U.S. 426.
[14] Hearings before the subcommittee of the Senate Committee on Appropriations on H.R. 7898, 63d Cong., 1st Sess. 293-299, 300 (1913).
Notes
[15] It is also significant that the new judicial code does not give a three-judge court jurisdiction to adjudicate the validity of commission orders “for the payment of money.”
[16] United States v. Griffin, supra, 234-237; Ayrshire Corp. v. United States, 331 U.S. 132, 136-137; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 378, n. 19; Phillips v. United States, 312 U.S. 246, 250.
[1] Compare Brief for United States and Interstate Commerce Commission, pp. 7-22, Great Lakes Steel Corp. v. United States, 81 F. Supp. 450, with Brief for United States, pp. 14-39, United States v. Interstate Commerce Commission, 78 F. Supp. 780. Since the argument of this case the Great Lakes Steel case has been brought here on appeal, No. 749, this Term, and the Government has acknowledged the conflict. See Motion to Defer Consideration of the Statement of Jurisdiction, Great Lakes Steel Corp. v. United States, No. 749, this Term.
[2] 54 Stat. 899,
[3] 24 Stat. 382, as amended,
[4] 24 Stat. 382, as amended,
[5] It held that the rates for export applied only when the wharves were public, which these wharves were not. The Commission also pointed out that the railroads had made other concessions to the Government; that the rates charged, together with a reasonable allowance for the services not provided, were still below the upper limits of reasonableness; that the wharfage charges had been absorbed because of competitive conditions. 264 I.C.C. 683, 269 I.C.C. 141.
[6] 24 Stat. 383, as amended,
[7] 24 Stat. 384, as amended,
[8] 54 Stat. 916,
[9] There was no Committee Report on this legislation; it was added to an appropriation bill. See 50 Cong. Rec. 4527-8. Mr. Fitzgerald, the sponsor of the amendment, said that its sole purpose was to abolish the Commerce Court and make provision for the litigation over which that court had jurisdiction. “It does not give any new right to any parties.” 50 Cong. Rec 4532, 4536, 4542. There was an attempt to enlarge the review provision so as to give shippers review where previously it did not exist, but this amendment was defeated after debate. 50 Cong. Rec. 4532, 4543-44. It was said: “The legislation contained in this bill simply abolishes a court that ought never to have been created and vests the jurisdiction which it now exercises in the district courts of the United States. That is all of it, and that is all there ought to be of it. There ought not to be any attempt to enact substantive law in this bill. There ought not to be any attempt to have an increase or decrease of the powers of the commission, and there ought not to be any attempt to increase or decrease the jurisdiction of the district courts over that of the Commerce Court. The only reason why the district courts are designated instead of the circuit courts is that the circuit courts have been abolished since the Commerce Court was created.” 50 Cong. Rec. 4536.
Notes
In Armour & Co. v. Alton R. Co., 312 U.S. 195, the essential question was whether a particular issue could be determined by the court or, in conformity with the Abilene doctrine, required Commission determination. The preoccupation of the case was with that issue. After holding that the doctrine of the Abilene case was applicable, the Court affirmed the judgment below requiring a ruling from the Interstate Commerce Commission, without considering whether there was jurisdiction in the sense of power to entertain but hold the case.
The Commission prefers that the shipper first file a suit in the court before asking the Commission for a declaration. This procedure has the advantage of preventing the statute of limitations from running on the shipper while awaiting Commission decision. Also, “In circumstances such as described, it is apparent that precautions should be taken to prevent the filing of frivolous or moot complaints. Without attempting at this time to devise a precise rule, we think it pertinent to point out that, generally speaking, adversary proceedings involving past unreasonableness, unjust discrimination, or undue prejudice under part II should not be brought before us prior to the institution of a suit in court in which damages are sought predicated upon the unlawfulness alleged in the complaint. The complaint should show that such suit has been brought within the period allowed by the applicable statute of limitations. There may be other situations in which we should exercise this jurisdiction. In this connection, it may be noted that it is a recognized practice to hold in abeyance court proceedings pending the determination by the Commission of administrative questions.” Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 343.