# Brief in Opposition to 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%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Motion to Affirm - **Published:** January 1, 1969 - **Citation:** 393 U.S. 535 ## Text Sa 6 Re mg te ‘ re Se ar an” ae . PG A Sree RN Ree EEN ONAN Peeteren Qe EE wre Te . 4 The question of statutory’ constryction evoked by these’ events eluded the district court and is avoided in the mo-. tions, to affirm. ‘US-ICC cite no case that interprets the critical phrase on which section. 316(g) centers—“suspend the. operation of such schedule and defer the use of such rate”. The question, of obvious substantiality, is one of first impression and merits interpretive study and reso- lution. In their motion, US-ICC prefer to’ rest their argu- ment on the dubious thesis that an order discontinuing the -investigation proceeding—made after the rates were republished-—may be. deemed to have revoked the suspen- ‘sion order and may be given retroactive effect to legiti- matize the republished schedules. Argument 1, The threshold statement made by US-ICC in their motion to affirm reveals a basic misconception that infects their argument and, in the end, is fatal to the conclusion they advocate. Of the orders initially issued by the Com- mission which suspended the carriers’ rate schedules, they Suy (p. 2): “although the orders were annulled by thé Commission when the motor carriers cancelled the schedules, ap- pellants (shippers) sued to ‘enforce’ them.” But, the order of suspension was... . not annulled; not annulled when.the carriers cancelled the sched- ules; not annulled when. the. carriers republished the rates. oe *% Clearly visible in the chronology (JS 6) is this sequence ; | of events: Yea i_y 5 _ Buspension order—July 12th; J cancellation of ‘schedules (published)—July both; republication of the rates—July 27th; order of discontinuance—August 16th. It is thus unmistakably plain that on July 27, 1967, when. ‘the carriers republished the ‘rates, the order of suspen- sion stood unrevoked and was unmodified even by the order of discontinuance subsequently issued. The statement of US-ICC includes an unwarranted ~ , characterization of the carriers’ purpose in republishing the suspended rates. They say (p.-2): | “Recognizing that they had not sufficiently supported the lawfulness of the proposed rates, the tariff bureaus notified the Commission that, pursuant to the Com- mission’s standing Special Permission No. M-94200 (J.S. 15a-16a), they were cancelling the schedules.” _ US-ICC seem to be suggesting that the tariff bureaus com- municated to the Commission an intention to cancel the schedules in order to republish the same rates with stronger supporting data.* Phis is wholly at variance with the record facts. The reference to JS 15a-16a. is merely to the reproduced standing order of the Commission that permits a carrier whose schedule is suspended to cancel ° the suspended matter on ten days’ notice. No reference is supplied to any letter or notice that the carriers sent to the Commission revealing their purpose. On the .con- trary, the only notification of which the public had any knowledge“is that quoted above announcing that the ear- riers “do not choose to defend ‘the general increases under suspension”. So far from suggesting an intention to con- Sar ee ee 6 tinue to support the suspended rate increases, their notice 7 reveals an | election to abandon their defense. 2. US-ICC argue (pp. 4-5) that appellants have inant an attack on the Commission’s “sole and exclusive power” with respect to suspension of tle republished rates. But appellants’ complaint is directed, not to a suspension order that the Commission declined to enter, but to the suspen- ‘sion order that the Commission did enter. Authority to suspend is indeed reposed in the administrative discre- - - tion of the Commission. The same cannot be said of au- thority to enforce an order of suspension. The notion that this is a power, exercisable in the uncontrolled dis- cretion of the Commission, is repugnant to the administra- ; tive process if not precluded by statutory .definition of . suspension as Commission action to “defer the use of such rate”. The position urged by US- ICC underscores the substantiality of the third question | posed by this ap- peal—is enforcement of a suspension order, as distin- guished from issuance of such an order; a matter com- mitted to the discretion. of the Commission and not subject to judicial review? 3. US-ICC assert that the order of suspension was “clearly annulled” when the Board entered its order dis- continuing the investigation proceeding (p. 4). Difficulties with that position are multiple: (1) the order of discon- tinuance was handed down, not by the Commission. or by : a division of the Commission, but by the Board of Sus- pension to which had been delegated authority to dis- continue an investigation proceeding upon cancellation of suspended schedules, but not to vacate an order of sus- pension j= (2) eeu to vacate a suspension order was » 7 reserved to the entire Commission as a plenary power or delegated to Division 2 under the appeal procedure es- ' tablished by Rule 200 of the Commission’s Rules of Prac- tice (JS 12a); (3) the order of discontinuance was, issued by the Board of Suspension after the rates were repub- lished, not before. US-ICC’s position in this respect highlights the. sub-_ stantial nature of. the second question presented by this appeal—whether an order discontinuing the investigation proceeding entered by an employee board of the Commis- — sion can be deemed effective to vacate the Commission’s order of suspension deferring the use of the rates, US-ICC appear to recognize the difficulty of a position that rests on nullification of an order of suspension under circumstances when the rates under suspension were re- published at.a time when the order of discontinuance was not in existence. They speak of the status of the suspen- sion order during that period as not “formally” vacated . (pp. 5-6) as if it were ‘possible through some undisclosed “informal” means to impart corporeal existence to some- thing wholly invisible, : | US-ICC plainly must overcome the dilemma posed by absence of the order discontinuing investigation on the date when the carriers republished the suspended rates. To extricate their argument, US-ICC focus attention on the effective date of the republishing schedules rather than the date of their issuance, This expedient can scarcely suffice. How could it be known on July 27th when the carriers republished the rates that were under suspension if or when an order of discontinuance would be issued by ' . the Commission? On that date the cancellation supple- Sd hate eh Se PTET RTT IE ETS eee ee ee ~ ‘ ‘ment had not even become effective. The standing Spe- cial Permission that authorized carriers to cancel a sus- pended schedule contained the proviso that the permission so conferred did not “waive or modify any outstanding formal order of the Commission” (JS 15a-16a). On July 27th the carriers, by their act of republication, flew in the face of an outstanding order of suspension that deferred the use of the rate to February 14, 1968. The schedules as presented were illegal. The Commission was called on by . appellants’ petition to reject them. The Commission passed the petition to its files without action. These in- firmities were fatal to republication of the rate increases. They were never cured and could never be cured by sub- sequent issuance of the order of discontinuance. The schedules, illegal when filed, could not be legitimatized by subsequent entry of the order of discontinuance. That date—August 16, 1967—failed to provide the time needed for statutory compliance by schedules, marked to take ef- fect August 29, 1967, with the mandate of 49 U.S.C. § 317 (ec) requiring 30 days’ notice of any changes in rates. It is for these reasons that the ultimate argument presented by US-ICC is not sustainable. They misappre- hend the gravamen of ‘this complaint, viewing it as a bid’ for judicial review of the Commission’s refusal to -sus- pend the republished rates. US-ICC would relegate ap- pellants to exhaustion by means of a formal complaint. Appellants have invoked the jurisdiction of ‘the district court, not to review the Commission’s: refusal {fo suspend, but to deal with its inaction in the face of violations of the order that did suspend. The court was asked to im- plement. §10(e) of the Administrative Procedure Act which requires the reviewing court to compel agency action 9: unlawfully withheld; to set aside agency action found’ arbitrary or not in accordance with law and without ob- - servance of procedure required by law. The argument of US-ICC supports the substantiality of the fifth ques- tion presented by this appeal—may parties aggrieved by Commission action obtain ‘mandatory injunctive relief - based on enforcement of the terms of ‘an outstanding sus- pension order or are they required to suffer rates effected in contravention of the suspension order while exhausting remedies under formal complaint procedure? 4. The motion of US-ICC includes argument that tends to lend force to the essentiality of the interpretation ques- tion that inheres in Section 316(e). They say (p. 6):.. “Furthermore, the suspension order, was.not directed at the proposed new rates in the abstract, but rather was entered upon thé record made in the original proceeding. There is no sound reason why the dis- cretion to suspend or not to suspend new schedules must be automatically. pre-empted by a prior decision on rates of the same level;” — These alternative consequences are hinged to the meaning that must be imparted to “suspend the operation of such schedule and defer the use of such rate”. The argument of Pagific Inland Bureau (pp. 3-4) serves to concretize the problem of statutory interpretation presented by this ap- peal, ie, does Section 316(e) speak to the schedules that are suspended or the rates contained in the schedules? Pacific Inland declares that it makes no difference that the order of termination was issued by the Board of Sus- pension rather than Commission when the Board has au- thority to issue the order (p. 4). This asserts as a fact something that is very much in issue in this ease. The 2 NEY SaPME EEN aH T LINING POL PRET Te EAT . POY RAR OA IT OY ENT ieee 10 Board was vested with authority to enter an order of dis- continuance, not to vacate an order of Suspension. The argument made at page 3 merits special comment, . Pacific Inland says: “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.” nak On August 7th when Pacific Inland did “publish and file” new rates, the slate was not wiped clean, absent an order discontinuing the investigation. That order was issued August 16th and ‘served August 22nd. Responding to the empirical view with which a tariff bysgau would be ex- pected to be familiar, Pacific Inland (unlike US-ICC) cor- rectly describes the significant acts of the carriers as the publishing and filing of the new schedules. . .9. Pacific Inland questions the viability of the suspen- Sion order in the presence of an order discontinuing the investigation proceeding, This point is dealt with at JS 9-10. It merits this additional comment. At page 4 Pacific Inland argues that if no investigation is instituted, there can .be no suspension, citing Wisconsin y. F.P.C., 373 U.S. 294, and Eastern Air Lines y. C.A.B., 294 F. 2d 235. The cases are inapposite. Each involved determinations made by the. respective regulatory agencies to discontinue in- vestigation proceedings long after the making of. an evi- dentiary record, Indeed, in Wisconsin the court refers (p. 305) to that Commission’s determination of the Section 4(e) dockets as a decision on the merits, In Eastern the ‘court observed (p. 237) that the hearing was lengthy and 11 extensive. The challenge in the cited cases was to the ‘agencies’ authority to discontinue the proceeding without arriving at a definitive conclusion with respect to the rates under investigation. The cases that are pertinent to the ‘issues presented here are not Wisconsin or Eastern, but those which hold that a Commission order which discon- tinues the proceeding may leave in force a directive con- tained in the same order or in another order which com- mands the carrier to cease and desist from applying certain rates, This Court has frequently reviewed de- © cisions and orders of the Interstate Commerce Commis- sion and has been~asked to and has rendered justments as to the lawfulness of orders which had been entered in proceedings in which the same order or subsequent orders _ Served by the Commission “discontinued the proceeding”. ‘Thus, American Commercial Lines, Inc. v. Louisville & - N. R. Co., 392 U.S. 571, reviewed ‘an order of the Com- _ mission in Ingot Molds, Pennsylvania to Steelton, Ky., 326 I.C.C. 77, which ordered schedules cancelled and the — _ proceeding discontinued. The same was true in I.C.C. v. New York, N.H. €-H. R.R. Co., 372 U.S. 744. Here the court reviewed an order of the Commission rendered in Commodities—Pan-Atlantic Steamship Corp., 313 I.C.C. 23, which ordered rates cancelled and the proceeding dis: continued. The continuing effectiveness of orders issued by the Commission in those proceedings was-not “an- nulled” by the issuance of an order stating that = — ‘ceedings had been discontinued. rf PAS IOV ERR SECRET OMT 12 CONCLUSION ' Appellants suggest that the questions presented on this appeal are substantial and merit plenary r review. Respectfully submitted, Joun F. DoneLan JoHNn M. Cieary Joun H. CaLpweELy | 914 Washington Building Washington, D. C. 20005 - Attorneys for Appellant, The National Industrial Traffic League ARTHUR A. ARSHAM 233 Broadway New York, New York 10007 Joun J. C. Marti 685 Third Avenue New York, New York 10017 Attorneys for Appellants, ‘The National Small Shipments Traffic Conference, Inc. and Drug & Toilet Preparation Traffic Conference February 19, 1969 3 ‘ } 4 : i { 4 - ° enw ot OTe ae ee Ree ee EE Ne eT ee eee Tarren e ny ee ey caus: oJ » --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1245%3A5. Public record. Not legal advice.