Motion to Affirm — National Industrial Traffic League v. United States

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Offica-Supreme Court, US.

FILED

LISKAKY: 2

“SUPREME COURT. I). & i, F a.

| No. 898 ae oS

| OHH F. DAVIS, ELERK

_ In THE -

‘Supreme Cmut of the United States

OCTOBER TERM, 1968

THE NATIONAL INDUSTRIAL TRAFFIC LEAGUE, THE NA-

February 3, 1969

TIONAL SMALL SHIPMENTS TRAFFIC CONFERENCE, INC.,

DRUG AND TOILET PREPARATION TRAFFIC CONFERENCE,

Appellants,

vV.

UNITED STATES OF AMERICA

_ AND

_pomnstare COMMERCE COMMISSION,

Appellees,

AND

RocKY MounrTAIN MoTOR TARIFF BUREAU, INC.,

PACIFIC INLAND TARIFF BUREAU, INC., ET AL.,

’ A Intervenor-Appellees.

On Appeal from the United States District Court

for the District of Columbia

4

MOTION OF

PACIFIC INLAND TARIFF BUREAU, INC.

TO AFFIRM

BRYCE REA, JR:

1329 E Street, N. W.

Washington, D. C.

Counsel for Pacific Inland Tariff

Bureau, Inc.,

Intervenor-Appellee

WILSON - EPES PRINTING Co. - RE 7-6002 - WASHINGTON, D. C. 20001

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INDEX

-STATEMENT OF THE CASE ee ae A

» PII cis netic aces i

AUTHORITIES

Cases:

Arrow Transportation Co. v. Southern Railway

Co., 372 U.S. 658 (1963) at

Eastern Air Lines v. Civil Aeronautics Board, 294 ©

' F. 2d 235 (D.C. Cir. 1961)... ia os

National Industrial Traffic ‘League ve “United

States, 287 F: Supp. 129 (D. D.C. 1964)... a

~ Wisconsin v. Federal Power Commission, 373 U.S.

294 (1963)... on

Statutes:

Interstate Commerce Commission

Section 5a, 49 U.S.C. § 5b...

Section 216(b), 49 U.S.C. § 316(b) ... ais

Section 216(g), 49 U.S.C. § 316(g)..

Rules and Regulations:

_ Rule 200, 49 C.F.R. § 1100.200..__..._.

ee en :

Organization Minutes of the Interstate Commerce

Commission — Organization of Division and

Boards and Assignment of Work

an T2....>........

a

sia ad FOr sae es

OLSEN IR IF

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s

ie

IN THE

Supreme Sanit of the Vuited States

OcToBER TERM, 1968 ~~ =.

No. 898 >

THE N ATIONAL ceneenenie TRAFFIC LEAGUE, THE Na-

TIONAL SMALL SHIPMENTS Parric CONFERENCE, ING.,

DruG AND TOILET PREPARATION TRAFFIC CONFERENCE,

| ——-

v.

UNITED STATES OF AMERICA

AND

INTERSTATE COMMERCE COMMISSION,

. Appellees,

AND iin Sg

Rocky MOUNTAIN MoTorR TARIFF BUREAU, INC.,

FACIFIC INLAND TARIFF BUREAU, INC., ET AL.,

EIntervenor-A ppellees.

On Appeal from the United States District Court

for the District of Columbia

MOTION OF

PACIFIC INLAND TARIFF BUREAU, INC.

TO AFFIRM

STATEMENT OF THE CASE

Pacific Inland Tariff Bureau, Inc. (PITB) is the agency

through which numerous motor commpn carriers of prop- |

A AGO SIE REA a HD

.

“.

erty, pursuant to an agreement approved by the Interstate

Commerce Commission under Section 5a-of the Interstate

Commerce Act, 49 U.S.C. § 5b, collectively discharge their

duty under Section 216(b) of the Interstate Commerce

Act, 49 U.S.C..§316(b), to establish and maintain just®

| and reasonable rates governing, generally speaking, their

. transportation ‘in’ the northwestern states of the United »

States 4nd between those states and California and Ari- .

zona. On June 9, 1967, PITB, as agent for its;members,

published and filed with the Interstate Commerce Com-

mission rate schedules increasing by 5 per cent rates ap-

plicable on’ less-than-truckload shipments, and increasing

by 8 per cent rates applicable on truckload shipments,

effective July 15, 1967. On‘July 12, 1967, the Board of

Suspension of the Commission, upon protest by Appel- |

lants and others, entered an order suspending the: opera-

tion of -the schedules until February 14, 1968, and insti-

. tuting an investigation of the lawfulness thereof. On

July 19, 1967, PITB published and filed supplements to its

tariffs, - ‘effective August 25, .1967, cancelling the sched-

ules under suspension and investigation. Thereupon, on

August I6, 1967, the Board.of Suspension entered an

order discontinuing the investigation.

On August 7, 1967, PITB published and filed with the

Commission new schedules making the same increases of

5 per cent and 3 per cent, effective September 9, 1967.

On September 6, 1967, the Board of Suspension, despite ,

protest by: the Appellants and others, declined to suspend

or investigate the increases. On September 8, 1967, Di-

vision 2 of the Commission, upon appeal by Appellants,

entered an order instituting an investigation of the lay- .

fulness of -the increases. However, it did not suspend

their operation and they became effective September 9,

1967.

Thereafter Appellants asked the United States District

Court for the District of Columbia to declare the increases

in rates effective September 9, 1967, unlawful, the theory

—_" —?

3.

being that the onder of suspension of July 12, 1967, was

outstanding and valid and that the increases were filed in

violation of the Commission’s Rules of Practice. On J uly

22, 1968, the Court dismissed the complaint on the grounds —

- that Appellants had failed -to exhaust the statutory

~ remedies gfforded them, and that no final agency action

Subject to judicial review was obtained by Appellants

before they sought to invoke the jurisdiction of the Court.

National ‘Industrial Traffic League v. United States, 287

F, Supp. 129 (D. D.C. 1968).

a ARGUMENT ;

Appellants in this appeal pose five questions that they

- contend are sufficiently substantial to warrant plenary

_ review by this Court. First \they asked whether the sus+_

pension provisions of 49 U.S.C. § 316(g) precludes car-~

riers who elect not to defend and, therefore, cancel the

suspended rates from republishing the same rates during

the period within which the cancelled rates would have

been under suspension. The plain answer is no. Appellants

do not deny that carriers may choose to cancel rates under

investigation and suspension rather than defend theni.

This is the choice the carriers made here. Having made .

that choice, there were no schedules on filé with the Com- °

mission to which its order of investigation and suspension

could apply. Hence, the Board of Suspension, under

-, authority delegated to it by Section 7.3 of the Commis-:

Sion’s Organization Minutes (Appellants’ Jurisdictional

‘Statement, App. F) dismissed the proceedings instituted

by that order. The effect of the dismissal was to wipe the

slate clean and leave the carriers free to publish’ and file

at any time such new rates as they considered proper—.

whether higher than, lower than, or the same as, the rates

cancelled. To hold otherwise would be to foreclose the

carriers from discharging their continuing duty under

Section 216(b) of the Interstate Comnierce Act to estab-

lish and maintain just and reasonable rates. .

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Appellants next asked whether an Order of the Board

‘of Suspension for continuing an-investigation of the law-

fulness of rates which have been cancelled can terminate

the suspension of the use of the rates. The plain. answer

is yes. The Commission’s authority to issue an order of

suspension is clearly ancillary to its awthority to enter |

upon an investigation of the lawfulness of rates. If no

investigation is instituted there can be no. suspension.

So too, if an investigation be terminated, a suspension

previously-ordered must fall. This would be true in a case

‘in which the Commission terminated an investigation of

’ rates that-had not been cancelled, which it may do. (See

Wisconsin v. Federal Power Commission, 373 U.S. 294

(1963) ; Eastern Air Lines v. Civil Aeronautics Board.

‘294 F, 2d 285 (D.C. Cir. 1961)). A fortiori, it is true

in this case, in which the investigation was terminated,

ebecause the cancellation. of the rates at issue therein .

rendered it moot. The fact that the order of termination

was issued by the Board of Suspension rather than the

Commission itself makes no difference when, as in the

case here, the Board has authority to issue the order.

Appellants’ third, fourth and fifth questions all rest on

the premise that there was an outstanding order of sus-

pension which the’ Commission disregarded and which the

District Court had jurisdictionuto enforce: As we- have

seen, that premise is false. Furthermore, the period of

suspension. has long since passed, and it is settled that no

court has jurisdiction to review the Commission’s deter-

mination to suspend or not, or to extend the period of

suspension beyond the period fixed by the Commission.

Arrow Transportation Co. v. Southern Railway Co., 372

U.S. 658 (1963).

As for the argument ‘that the Commission disregarded

its Rules of Practice, which rests on Section 200 of those

rules (49 C.F.R. § 1100.200), which permits carriers to

Seek reconsideration by the Commission of orders of

suspension issued by ‘the Board of Suspension, we may

assume arguendo that Section 200 provides the only meth-

5 oe,

od by which the carriers could ,have achieved the lifting

of the suspension and thereby made the filed and pub-

lished rates effective. But the carriers did not seek to

make the filed and published rates effective. Rather, they

chose to exercise their right to cancel the rates and start

anew.’ ae tae |

When the carriers started anew by filing new schedules

to be effective. September 9, 1967, fifty-five days later

than the originally scheduled date of July 15, 1967, Ap-

pellants had and exercised their right to seek investiga-

tion and suspension. Upon their protest the Commission

ordered an investigation,? but decided not to exercise its

ancillary power to suspend. In sum, looking at, substance

rather than form, Appellants are asking the judiciary to.

reverse that decision. This, no court can do. Arrow:

Transportation Co., supra.

WHEREFORE, Pacific Inland Tariff Bureau, Inc.

prays this Court to summarily affirm the judgment of the

District Court. - r

- Respectfully submitted, ;

BRYCE REA, JR.

1329 E Street, N. W.

Washington, D. C. 20004

Counsel for Pacific Inland Tariff

- Bureau, Inc.,

; *: - Intervenor-A ppellee

_Of Counsel: . | |

REA, GROSS & KNEBEL .

917 Munsey Building

1329 E Street, N. W.

Washington, D. C. 20004

a

1 The carriers chose this course in order to give themselves time

to prepare and submit a better explanation of and justification for-

increased rates than they had earlier submitted.

* Appellants participated in the hearings on the investigation,

which is now pending for decision. '

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