# Motion to Affirm — National Industrial Traffic League v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1245%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Affirm - **Published:** January 1, 1969 - **Citation:** 393 U.S. 535 ## Text cee PRA MERA EES CL NSTI LRA RES AN SIN ILT TU ar ey ENTRY ron UP Re OPN TN HIS © ‘ . POT A WE ace: . i aOR oe cid | ; 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 - e SRR MIETTINEN IT 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 ---7% 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. . a eee ee . pw. Pane Sea: 4 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. ' Ls ee ee a Z e it an --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1245%3A4. Public record. Not legal advice.