Amicus Curiae Brief — Maislin Industries, US, Inc. v. Primary Steel, Inc.

BEST AVAILABLE COP'

TABLE OF CONTENTS

Page

TABLE OF AUTHRORITIES cccccccccccccccccccccccccccosccccscess il

INTEREST OF AMICI CURIAE ............0ccccccccceeeeeeees 2

SUMMARY OF ARGUMENT .........cccccccccccccceccecceeeeee. 4

ES 5

The ICC Has Exclusive And Plenary Au-

oy | To Find That A Motor Carrier Sub-

= o Its Jurisdiction May Not Collect Its

iled Rates When Such ion Would Be

Unreasonable And Thereby Violate The Act ,

eoscocooooossosonoonosoososoososooooooooosooooeoooooooooooosoooooocees 0

A. The Filed Rate Doctrine Is Not Absolute

And Does Not Bar An ICC Finding That

A Filed Rate Or Its Collection Is Unrea-

B. The ICC Has Exclusive Power To Decide

Whether A Motor Carrier's Unreasonable

Practices Prevent The Collection Of Its

i 14

C. The Court Below Properly Concluded

That, In View Of Its Exclusive Jurisdic-

tion To Decide Them, The Reasonableness

Issues Here Presented Were Required To

Be Referred To The ICC 200000000... 24

SPEUUEMEEEEY crscecensessecnsenscesesnssesesnncersensncosssnsseoseosse: 238

TABLE OF AUTHORITIES

Cases: Page

Arizona Grocery Co. v. Atchison T. & S.F. Ry. Co.,

RE RY) 8,9,11

Baltimore & Ohio Railroad v. United States, 305

GF yeyyyyEEEEEEEEEEE———————————EEE

Beisler v. CIR, 814 F.2d 1304 (9th Cir. 1987) ...... 7

Brown v. Duchesne, 60 U.S. (19 How.) 183

CQ ——————————— EE 7

Carriers Traffic Service, Inc. v. Anderson, Clayton

& Co., 881 F.2d 475, (7th Cir. 1989) ............. 10,16

Chicago & N.W. Transp. v. Kalo Brick & Tile, 450

CR yy_———E—————— EEE 26

Chicago RJ. & P.R. Co. v. Furniture Forwarders

of St. Lowis, Ine., 420 F.2d 385 (8th Cir.

( 27

Consortium of Com. Based izations v. Dono-

van, 530 F.Supp. 520 (E.D. Cal. 1982) .......... 7

Delta T Service, Ine. v. Appeo Paper & Plas-

ties Corporation, 893 F.2d 472 (2nd Cir.

i 10,16,27

Far East Conference v. United States, 342 U.S. 570

|, 27

General American Tank Car Corp. v. El Dorado

Terminal Co., 308 U.S. 422 (1940) ................. 27

Great Northern Ry. v. Merchants Elevator Co., 259

GR E—————————EEs 15,18,25

Hansen v. Norfolk & W. Ry. Co., 689 F.2d 707 (7th

2) 27

Hewitt-Robins Inc. v. Eastern Freight-Ways, Ine.,

Ee EY 15,17,18,20,24,26

1CC. » American Trucking Associations, Inc., 467

Oe Se 8) ~ccsseesenlis 9,22

I.C.C. v. Union Pacifie R.R. Co., 222 U.S. 541

a 16

In re Penn Central Transportation Co., 477 F.2d

841 (3rd Cir. 1973), cert. denied, 414 U.S. 923

En 27

INF, Ltd. v. Spectro Alloys Corp., 881 F.2d 546

8th Cir. 1989), petition for cert. filed, 58

S.L.W. 3412 (U.S. Dee. 14, 1989) (No. 89-

Informal Procedure For Determining Motor Carrier

and Freight Forwarder Reparation, 335 L.C.C.

EE 16

Interstate Commerce Commission v. Atlantic Coast

Line R.R., 383 U.S. 576 (1966) ...............0.... 15-16,27

Interstate Commerce Commission v. Baltimore & O.

R. Co., 145 U.S. 263 (1892) ....................0000000 8

Towa Beef Processors v. Ill. Central Gulf R. Co., 685

TT 27

Keogh v. Chicago & Northwestern R. Co., 260 U.S.

era cretncnensnncononeess 11,12

Locust Cartage Co. v. Transamerican Freight Lines,

Inc., 430 F.2d 334 (1st Cir. 1970) .........0.00.... 16

Louisville & Nashville R.R. Co. v. Maxwell, 237

TR 911,12

McCuin v. Secretary of Health and Human Services,

ED. _, | 7

McLean Trucking Co. v. United States, 321 U.S. 67

ELE 16

Middlewest Motor Freight Bureau v. United States,

433 F.2d 212 (8th Cir. 1970), cert. denied, 402

ee 10,27

Mississippi Vi Barge Line Co. v. United States,

292 US. ET itiainiicinttnemneeureemesnneees 16

Montana-Dakota Utilitves Co. v. Northwestern Pub-

lie Service Co., 341 U.S. 246 (1951) ............... 19

Nader v. Allegheny Airlines, Inc., 426 U.S. 290

ESE 27

iv

National Motor Freight Traffic Ass'n. v. United

States, 268 F. Supp. 90 (D.D.C. 1967), affd.

per curiam, 393 U.S. 18 (1968) «0... 16,27

Northern Pacific Ry. v. Solum, 247 U.S. 477

CD cecesvnsesennesnacennensnennenseccensesssntunmemensinnvienes 18

Pennsylvania R. Co. v. Clark Brothers Coal Mining

Ca, BBB UE. GBB CIGD ccccenceccccsccccccsssccssasesess 27

Pennsylvania Railroad Co. v. United States, 363

Be, TID CD eecnevecececccsssesenscevsnsseuremasnsncsovens 16

Petition to Institute Rulemaking on Negotiated Mo-

tor Common Carrier Rates, 5 L.C.C. 2d 623

CRIED snecesexsanscssenssseseniscsésoccezecusscnsuitetanmnetaenante 8

Richards v. United States, 369 U.S. 1 (1962) ....... 7

Seaboard System R.R. Co., Ine. v. United States,

794 F.2d 635 (11th Cir. 1986) .......... 8,10,15,16,18,27

Southern Pacific Transportation Co. v. Commercial

Metals Co., 456 U.S. 336 (1982) ...........cccceeee 23

Square D Company v. Niagara Frontier Tariff Bu-

reau, 476 U.S. 409 (1986) ...........ccccccccsseseeeeees 11,12

St. Louis, Brownsville & Mexico Ry. Co. v. Browns-

ville Navigation District, 304 U.S. 295

CEI cinkccossuntseinnninsintimmnnnimmenmaitinenmnntaniianiens 27

Stafford v. Briggs, 444 U.S. 527 (1980) ............. 7

Supreme Beef Processors, Inc. v. Yaquinto, 864 F.2d

388, 393 (5th Cir. 1989), petition for cert. filed,

58 U.S.L.W. 3036 (U.S. May 30, 1989) (No. 88-

TIED siesccncnerassentsninstatesnesinstenbernicmeens jaaneneinenanene 28

T.1M.E., Inc. v. United States, 359 U.S. 464

CED cxansssociscnssniesseninennssossensqenssebnaeteemnatassuninnnts 19

Texas & P.R. Co. v. Abilene Cotton Oil Co., 204

eR Fe en 24-25

Union Pacific R. Co. v. United States, 111 F.Supp.

AAI (GG, Oe 26

United States v. Associated Transport, Inc., 505

PO ya 16,27

United States v. Illinois Cent. R. Co., 263 U.S. 515

CTD cceccccececsscocecssrecnsvensnnvensscenenionsssasesasetosoosose 8

United States v. Pierce Auto Freight Lines, 327

IRI CD CI cities 16

United States v. United States Steel Corp., 645 F.2d

| SS ee 27

United States v. Western Pacific Railroad Co., 352

EE: TP CUUIITEED ‘snssiossectnaseavsctiinbeetmiasiientansesiniimaniaaies 15,25

West Coast Truck Lines, Inc. v. Weyerhaeuser Co.

893 F.2d 1016 (9th Cir. 1990), petition for reh’g

SO ieiiat tra er ne 8,10,16,27

Western Electric Co., Inc. v. Burlington Truck

Lines, Inc., 501 F.2d 928 (8th Cir. 1974) ...... 10

Western Transp. Co. v. Wi

1297 (7th Cir. s* stentsnedhnencaendideg CRT

Statutes:

RE eee 22

GD Ws BID ccectccettncdctcccccsssisesessctendenenessasaess 22

i a iinet 22

OU es a 22

49 U.S.C. § 10701(a) ............ 6,8,9,10,11,12,15,18,20,21,23

49 U.S.C. § 1OTO4QDM1) oon... ec ecccccccccceeceees 6-7,15

49 U.S.C. § 1076 Ifa) ..................................... 5,6,7,8,10,12

49 U.S.C. § 11701a) ooo ccccccccccecececcececeseeeeeee 17

49 U.S.C. § LUTOGQMZ) ...........0ccccccccccccccccsccscsscssseeee 14

49 U.S.C. § LITOB(DM3B) ooo eccceeen 7,14,18,20,21,22

49 U.S.C. § LI TOG(CML) .o.cccccccccccccccccccceceecessceseeseeeees 14

49 U.S.C. § LI FOGEMD) ........cccccccccccscccccccscecccsssccesees 14,19

Miscellaneous:

ee 13 1965) bona p deaelbein. dhontemettntions TT”

Motor Carrier Act of 1980, Pub. L. 96-296, 94 Stat.

TUE serrbudiediitiiasnnidvudtabannilicteibitsiehar dinate nate es 23

Pub. L. No. 89-170, 79 Stat. 651-652 ......00000000...... 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-624

MAISLIN INDUSTRIES, U.S., INc., et al.,

Petitioners,

Vv.

PRIMARY STEEL, INC.,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals for the

Eighth Circuit

BRIEF AMICI CURIAE OF THE

NATIONAL-AMERICAN WHOLESALE GROCERS’

ASSOCIATION, THE RUBBER MANUFACTURERS

ASSOCIATION, ANHEUSER-BUSCH COMPANIES, INC.,

BAXTER HEALTHCARE CORPORATION,

MOTOROLA INC., AND RINGLING BROS. AND

BARNUM & BAILEY COMBINED SHOWS, INC.

IN SUPPORT OF RESPONDENT

This brief is respectfully submitted on behalf of the

National-American Wholesale Grocers’ Association

(‘“‘NAWGA”’), the Rubber Manufacturers Association

(‘‘RMA’’), Anheuser-Busch Companies, Inc., Baxter

Healthcare Corporation, Motorola Inc., and Ringling

Bros. and Barnum & Bailey Combined Shows, Inc.,

as amici curiae. Pursuant to Rule 37.3 of the Rules

of this Court, amici have obtained and filed the writ-

ten consent of each of the parties to the filing of this

brief. The amici support the position of respondent

in this case and urge affirmance of the decision below.

INTEREST OF AMICI CURIAE

NAWGA is a national trade association comprised

of food distribution companies which primarily supply

and service independent grocers and foodservice op-

erations throughout the United States and Canada.

NAWGA’s 350 members operate over 1,300 distri-

bution centers nationwide with a combined annual

sales volume in excess of $85 billion. RMA is a na-

tional trade association representing approximately

200 rubber and tire manufacturers. RMA members

produce an estimated 40,000 different rubber prod-

ucts, and account for 90 percent of all rubber pro-

duction in the United States.

Anheuser-Busch Companies, Inc. is a holding com-

pany whose subsidiaries include Anheuser Busch, Inc.,

a brewer, and other companies engaged in such di-

verse activities as real estate, major league baseball,

and container manufacturing. Baxter Healthcare Cor-

poration develops, manufactures, and distributes

health care products, systems, and related services

for use principally by hospitals, blood and dialysis

centers, laboratories, nursing homes, and physicians.

Motorola Inc. produces electronic equipment, systems,

and components, including two-way radios, pagers,

cellular telephone systems, defense and aerospace

electronics systems, and data communications and in-

formation systems. Ringling Brothers and Barnum &

Bailey Combined Shows, Inc. produces and presents

3

live entertainment, including ice shows and circuses,

throughout the world. |

The diversity and scope of their operations require

that amici—including the NAWGA and RMA mem-

bers—ship a wide variety of products throughout the

nation. These shipments consist of finished manufac-

tured goods, as well as raw materials, supplies, and

equipment inbound to amici’s production and manu-

facturing locations. Because amici’s production sites

are, for the most part, not served by railroads, and

since rail transit times are generally not suited to

their operations in any event, the preponderance of

amici's traffic is transported by for-hire motor car-

riers regulated by the Interstate Commerce Commis-

sion (“ICC”’ or ““Commission’’).

In recent years, many motor carriers, in an attempt

to either obtain or retain amici's traffic, have quoted

rates for the transportation of that traffic at levels

below those published in the carriers’ tariffs on file

with the ICC; the understanding was that the rates

the carriers quoted and negotiated would be published

by the carriers before they transported any freight

thereunder. However, the rates frequently were not

published, even though the carriers transported ami-

cei’s traffic over a continuing period of time, billed

amici at the quoted rates, and accepted payment from

amici at those rates. Because of the carriers’ failure

to publish the negotiated rates in their tariffs, amici

have been subjected to numerous lawsuits seeking re-

covery of freight undercharges equal to the difference

between the negotiated rates that had been quoted

by the carriers and paid by amici, but not filed, and

the carriers’ higher filed rates. Amici have responded

to these suits, which have been brought for the most

part by the carriers’ representatives in bankruptcy,

by asserting that collection of the filed rates would,

under all the circumstances, be an unreasonable car-

rier practice in violation of the Interstate Commerce

Act (“Act’’).

The issue presented in this case is whether a motor

carrier has the right to collect the rates in its filed

tariffs when to do so would violate the Act; that issue

is the same one raised in the undercharge suits filed

against amici. In addition, as substantial users of mo-

tor carrier service, the issues presented herein are of

great importance to amici generally. They have,

therefore, a compelling interest in the Court's reso-

lution of this proceeding.

SUMMARY OF ARGUMENT

Both the district court and a unanimous panel of

the court of appeals concluded in this proceeding that

the ICC has exclusive authority to decide if the col-

lection of a motor carrier's filed rate should be ' rred

when such collection would, under all the rcum-

stances, violate the ct. These decisions fully «omport

with this Court’s precedent, as well as with the Act

and decisions of the lower federal courts.

The filed rate doctrine, which requires carriers to

charge only those rates contained in filed tariffs, does

not override the ICC’s power to prevent the collection

of a filed rate. This Court has held that filed rates

must be reasonable. If the ICC concludes that they

are not, the filed rates may not be imposed. Because

a carrier's rates and the practices relating thereto

must be reasonable, it is equally apparent that, in an

action by a carrier to collect its filed rates, a shipper

may assert a defense that such collection would vi-

olate the Act.

The ICC's power to prohibit the collection of filed

rates, when such collection would violate the Act, is

exclusive and plenary. The Act and this Court’s de-

cisions confer upon the Commission the sole respon-

sibility to decide whether motor carrier rates and

practices are reasonable, and the right to fashion ap-

propriate remedies for any rates and practices it finds

are not. In view of the ICC’s exclusive regulatory

authority over motor carriers, the court below prop-

erly found that the doctrine of primary jurisdiction

required referral to that agency of the issues here

involved.

ARGUMENT

C Has Exclusive And Plenary Authority To

Find That A Motor Carrier Subject To Its Jurisdiction

May Not Collect Its Filed Rates When Such Collection

nreasonable And Thereby Violate The Act

A. The Filed Rate Doctrine Is Not Absolute And Does Not

Bar An ICC Finding That A Filed Rate Or Its Collection

The court below held, inter alia, that the filed rate

doctrine found in Section 1076l(a) of the Act, 49

U.S.C. § 10761(a)’, did not prevent the ICC from find-

ing that petitioner Quinn Freight Lines, Inc. (“‘Quinn’’)

could not collect its published tariff rates from

respondent Primary Steel, Inc. (“‘Primary’’). Maislin

Industries and U.S. Ine. v. Primary Steel, Inc., 879

1 Under Section 10761l(a), a motor carrier's rates must be con-

tained in a tariff on file with the ICC, and the carrier can only

charge those rates.

F.2d 400, 404-406 (8th Cir. 1 89) (Pet. App. la).’ The

court noted that Section 10761(a) is only one part of

the statute. It is not to be elevated over Section

10701(a), 49 U.S.C. §10701(a), which requires that

motor carrier rates and practices be reasonable; any

conflict between these sections is to be reconciled by

the ICC. Id. at 405.

In urging reversal of this decision, petitioners claim’

that since the filed rate doctrine requires carriers to

collect only their filed rates, the ICC may never per-

mit a shipper to assert a defense to such collection.

(Brief For The Petitioners, 10) (Pet. Br.’’). Accord-

ing to petitioners, “the Act is intentional in design

in prohibiting exceptions to the filed rate doctrine’.

(Id. at 12).

These arguments seriously misapprehend the sta-

tutory provisions applicable to motor carrier rates and

practices. It is evident from those provisions that the

doctrine requiring collection of a carrier's tariff rates

does not apply when the rates, or their collection,

violate other provisions of the Act. While Section

10761(a) compels a motor carrier to provide trans-

portation pursuant to rates contained in tariffs filed

with the Commission and to charge and collect only

those rates, Section 10701(a) of the same statute re-

quires that those rates and the carrier's practices be

reasonable. Additionally, Section 10704(b\1), 49

*“Pet.App.” refers to the Appendices to the Petition ror Writ

of Certiorari filed in this proceeding.

‘The amici supporting petitioners advance essentially the same

arguments as petitioners in requesting that the decision of the

court below be set aside. Their arguments, therefore, will not

be addressed separately.

7

U.S.C. § 10704(bX1), provides for the prescription of

remedies by the ICC if it decides that a motor car-

rier’s rates or practices are not reasonable, and Sec-

tion 11705(bX3), 49 U.S.C. § 11705(b\3), subjects

motor carriers to damages resulting from the impo-

sition of rates the ICC finds to violate the Act.

These provisions manifestly deny a motor carrier

the right to collect its filed rates when the ICC con-

cludes that to do so would be unreasonable or oth-

erwise unlawful. However, under petitioners’

construction of the Act, the filed rate doctrine repeals

the “reasonableness” sections and, in so doing, re-

lieves carriers from any obligations thereunder. Such

an interpretation is patently impermissible, without

support, and contrary to basic tenets of statutory con-

struction. To give full effect to all of the relevant

and co-equal portions of the Act—as did the court

below—Section 10761(a) must be viewed as only one

part of a statute which, while requiring carriers to

charge their filed rates, at the same time mandates

that such rates, and the practices related thereto, be

reasonable.‘ As the ICC explained in its decision in

‘It is a cardinal principle of statutory construction that courts

must attempt to give an act’s provisions a harmonious and com-

prehensive meaning. See, ¢.g., Richards v. United States, 369

U.S. 1 (1962); Brown v. Duchesne, 60 U.S. (19 How.) 183 (1857);

MeCuin v. Secretary of Health and Human Services, 817 F.2d

161 (lst Cir. 1987); Beisler v. CIR, 814 F.2d 1304 (9th Cir.

1987), Consortium of Com. Based Organizations v. Donovan, 530

F.Supp. 520, 528 (E.D. Cal. 1982) (citing Stafford v. Briggs, 444

U.S. 527, 535 (1980)). (“It is fundamental that a court is not

to read each section of a statute in isolation but, rather, should

consider each section in connection with the entire statute and

the objects and policies of the law as indicated by the various

provisions. ’’)

|

Petition to Institute Rulemaking On Negotiated Motor

Common Carrier Rates, 5 1.C.C. 2d 623, 627 (1989),

“Section 10761 is only part of an overall regulatory

scheme; it should not be elevated over the unreason-

able practices provision of § 10701." See also, West

Coast Truck Lines, Inc. v. Weyerhaeuser Co., 893 F.2d

1016, 1027 (9th Cir. 1990), petition for reh'g filed

(‘West Coast’’),; Seaboard System R.R. Co., Inc. v.

United States, 794 F.2d 635, 688 (11th Cir. 1986)

(““Seaboard’’).

This Court’s decisions have confirmed that the plain

language of the statute requires that all of the sec-

tions thereof relating to motor carrier rates and prac-

tices be given equal weight. When such equal weight

is accorded, the result is a statutory scheme which

creates a distinction between “‘legal’’ motor carrier

rates and “lawful” rates. The “‘legal’’ rate is the rate

properly published and filed with the ICC in a tariff

as required by Section 10761(a); it must be charged

to all shippers alike unless found to be unreasonable.

A “lawful” rate is a filed rate which is reasonable

or otherwise lawful as required by Section 10701(a).

A legal rate, i.e., the filed rate, may at the same

time be unlawful if it is declared unreasonable by the

ICC. Arizona Grocery Co. v. Atchison T. & S.F. Ry.

Co., 284 U.S. 370 (1932) (“Arizona Grocery’). The

Court there explained that “the legal rate was not

made by the statute a lawful rate—it was lawful only

if it was reasonable’. 284 U.S. at 384. See also In-

terstate Commerce Commission v. Baltimore & O. R.

Co., 145 U.S. 263, 277-278 (1892); United States rv.

Illinois Cent. R. Co., 263 U.S. 515, 521, 525-526

(1924).

9

Even in Louisville & Nashville R.R. Co. v. Maxwell,

237 U.S. 94 (1915) (“Mazrwell’’), upon which

petitioners primarily rely in claiming that defenses by

shippers to collection of the filed rate are prohibited

(Pet. Br. 10), the Court held that the filed rate doc-

trine is not inviolate and that such rate is not nec-

essarily the “lawful” reasonable rate. Instead, a

carrier must abide by it, “unless it is found by the

Commission to be unreasonable." 237 U.S. at 97. If,

as Maxwell and Arizona Grocery hold, a filed rate

must be reasonable in order to be lawful, a shipper

obviously may assert a defense, based upon the rea-

sonableness standards of Section 10701(a), to an at-

tempted collection of that rate.’ The very authority

relied upon by petitioners, therefore, contains the ex-

ception to the doctrine they invoke.

That filed rates may properly be subject to remedial

action by the ICC was recently reaffirmed by the

Court in L.C.C. v. American Trucking Associations,

Inc., 467 U.S. 354 (1984) (“1.C.C.”’). In that case, the

Court upheld a Commission policy pursuant to which

it nullified effective motor carrier tariffs on file with

it if those tariffs were submitted in substantial vio-

lation of motor carrier rate bureau agreements. /d.

at 370-371. The rates contained in those tariffs were,

beyond question, filed with the ICC. Nevertheless,

this Court held that, under certain conditions, they

may be invalidated by that agency.

Many other courts have agreed with the court be-

low, and have held that a shipper may assert an un-

* Petitioners frequently refer to the defense asserted by Pri

mary in this case as an “equitable” one. (See, ¢.g., Pet. Br. 10).

On the contrary, the defense is expressly authorized by Section

1070l(a) and the other provisions of the Act discussed hereim.

10

reasonableness defense to the attempted collection of

a filed rate. Those courts have confirmed that the

raising of such defense under Section 10701(a) is not

precluded by the filed rate doctrine. See, ¢.g.. Carriers

Traffic Service, Inc. v. Anderson, Clayton & Co., 881

F.2d 475, 481-482 (7th Cir. 1989) (“Carriers Traffic

Service’’y, Delta Traffic Service, Inc. v. Appeo Paper

& Plastics Corporation, 893 F.2d 472, 475 (2nd Cir.

1990) (“Delta Traffie Service’) (referral to the ICC

of defense of unreasonableness of carrier's practices

does not undermine the filed rate doctrine), Seaboard,

supra, 794 F.2d at 637-638; Middlewest Motor Freight

Bureau v. United States, 433 F.2d 212, 238 (8th Cir.

1970), cert. denied, 402 U.S. 999 (1971) (“[Mlerely

because the carrier is bound to charge the filed rate,

it does not follow that he is entitled to keep it’);

Western Electric Co., Inc. v. Burlington Truck Lines,

Ine., 501 F.2d 928 (8th Cir. 1974), Western Transp.

Co. v. Wilson & Co., 682 F.2d 1227, 1231 (7th Cir.

1982) (“Western”) (the ICC has primary jurisdiction

to determine whether a “legal” rate is im fact the

“lawful” rate); West Coast, supra, 893 F.2d at 1027

(“Because the ICC's policy harmonizes the filed rate

doctrine with the statutory proscription of unreason-

able practices, we hold that the ICC’s consideration

of unreasonable practices defenses to undercharge ac-

tions 1s consistent with congressional intent.”) The

fact that a motor carrier rate is published in a tariff

on file with the Commission as required by Section

1076l(a) does not, therefore, forever establish its law-

fulness. Instead, the rate itself or the practices sur-

rounding its collection may be challenged as unrea-

11

sonable under other sections of the Act of equal stat-

ure.°

Petitioners’ authority fails to support their position

that filed rates may never be invalidated. The decision

in Square D Company v. Niagara Frontier Tariff Bu-

reau, 476 U.S. 409 (1986), like Maxwell, supra, does

not hold that filed rates must be collected under all

circumstances. Instead, the Court held that shippers

had no remedy under the antitrust laws for treble

damages based upon such rates. The decision does

not say that the same shippers may not assert an

unreasonableness defense to the attempted collection

of a motor carrier’s filed rate, nor does it hold that

such rate could not be found by the ICC to violate

Section 10701(a). On the contrary, the decision ex-

pressly acknowledges that filed rates, while not vul-

nerable to a private antitrust challenge, may

nevertheless be declared invalid by the Commission.

The Court thus held, quoting from Keogh v. Chicago

& Northwestern R. Co., 260 U.S. 156 (1922) (‘Keogh’),

that the tariff rate is the legal rate ‘ ‘‘[ujnless and

until suspended or set aside [by the ICC]....°’ 476

U.S. at 416. The Court added, again quoting from

Keogh, * “‘[wJhat rates are legal is determined by the

Act to Regulate Commerce’’’. Jd. at 416, n. 18. In

* Marwell and Arizona Grocery, supra, involved the reason-

ableness of a carrier’s rates rather than its practices. However,

neither case held that collection of a filed rate could not be

resisted on the ground that such collection would be unreason-

able. In any event, as seen from the authority discussed at page

10, supra, there is no basis for concluding that an ICC finding

of unreasonableness as to one element of Section 10701(a) pre-

cludes collection of the filed rate, but that a finding as to the

other element does not, when the same reasonableness standard

of the same provision of the Act applies to both.

12

short, Square D, Keogh, Maxwell, and Arizona Gro-

cery all acknowledge that filed rates can be held to

be unreasonable, and thereby recognize that Sections

10701(a) and 10761(a) are co-equal provisions of the

Act.’

The claim that the rates here involved were not

found to be unreasonable and, thus, are ‘“‘the duly

submitted lawful rates’’, (Pet. Br. 11), again fails to

appreciate the interrelationship between the filed rate

doctrine and the concurrent statutory requirement

that rates and practices be reasonable. The ICC found

that the imposition of Quinn’s filed rates would, under

all the circumstances, be an unreasonable practice in

violation of the Act. Because of its commission of a

statutory violation, the ICC concluded that Quinn

should not be permitted to collect its undercharges

based on the filed rate. Since Section 10701(a) pro-

vides that the rates and practices of motor carriers

must be reasonable, an ICC determination that col-

lection of a filed rate is unreasonable, in response to

a shipper’s defense thereto, precludes such collec-

tion—under the statute and the judicial precedent dis-

cussed herein.*

"In addition, none of the cases cited by petitioners at pages

10-11 of their brief involved the issue of a shipper’s defense to

an undercharge claim, nor do those cases remotely support

petitioners’ position that the ICC lacks authority to prohibit the

collection of filed rates.

* Application of the ICC’s Section 10701(a) authority to bar

the collection of unreasonable undercharges has not resulted in

a discarding of the filed rate requirement (Pet. Br. 11-12)—

carriers must still publish their rates in tariffs, file them with

the ICC, and charge the rates contained therein. Because the

filed rate requirement still exists, no statutory requirements have

been rendered “unreasonable and unnecessary’. (/d.)

13

The decision below gives effect to all of the Act’s

relevant provisions and concludes therefrom that a

earrier’s “‘legal’’ filed rate may not be collected if

such collection would violate the Act. This action re-

solves, in a rational manner, the tension that exists

between the filed rate section of the statute, on the

one hand, and, on the other, those parts of the Act

mandating that rates and practices be reasonable. This

is not judicial or regulatory action of a particularly

radical or sinister nature. It is supported by unam-

biguous statutory language and judicial precedent, and

is grounded upon the most basic elements of fair deal-

ing; if a carrier’s charges or business conduct relating

thereto are unlawful, it should not be allowed to profit

by retaining those charges.

Petitioners, on the other hand, are attempting,

without any justification whatsoever, to employ Sec-

tion 10761(a) in a manner that Congress never in-

tended. As the court below explains, 879 F.2d at 404,

tne filed rate requirement was enacted to protect

shippers from rate discrimination; strict adherence to

public tariffs by carriers would ensure that a shipper

was charged the same rate by its carriers as other

shippers. In this case, however, petitioners are re-

questing that this Court permit the filed rate doctrine

to be used, not as a shield to protect the shipping

public, but as a bludgeon to force them to pay rates

the ICC has found may not be lawfully collected. This

perversion of the filed rate requirement is permitted

neither by the statute, by the decisions of this Court,

nor by any notions of fairness or justice.

14

B. The ICC Has Exclusive Power To Decide Whether A

Motor Carrier's Unreasonable Practices Prevent The

Collection Of Its Filed Rates

Not only may a motor carrier be precluded from

collecting its filed rate under certain circumstances,

but the authority to make the determination as to

whether such rate or its attempted assessment is un-

reasonable, is vested exclusively in the ICC.

Petitioners allege, on the contrary, that the ICC had

no authority to decide Primary’s unreasonableness de-

fense; accordingly, referral of that defense to the

agency circumvented the filed rate doctrine. (Pet. Br.

12). This argument again misconstrues the ICC’s plen-

ary and exclusive statutory authority over motor car-

rier rates and practices, and the function it performs

in deciding whether such rates and practices are rea-

sonable.

Petitioners attach some significance to the fact that

the Act assigns different roles to the Commission

depending upon whether a rail or motor carrier pro-

ceeding is involved; from this, they claim that it has

no jurisdiction to bar the collection of filed motor

carrier rates. (Pet. Br. 17-18). This is incorrect; the

differences in the ICC’s handling of motor and rail

cases are procedural only. For example, if a rail rate

is at issue, a shipper may file a complaint directly

with the Commission. The ICC is empowered to enter

an award of reparations on the basis of the complaint;

no concurrent pending court action is necessary. 49

U.S.C. §§ 11705(bX2) and 11706(c\(1).

In a case involving motor carrier rates and prac-

tices, however, the claim is filed in a federal district

court, not before the ICC. 49 U.S.C. §§ 11705(b\3)

and 11706(c\2). But the court can only enter an order

15

after the issue has been referred to the Commission,

pursuant to the doctrine of primary jurisdiction,’ and

that agency has decided the lawfulness of the chal-

lenged rate or practice under Section 10701(a). The

authority of the ICC, and not a court, to decide such

issues is conferred on it by Sections 10701(a) and

10704(b\ 1), which give it exclusive jurisdiction to de-

cide reasonableness issues, and by Section 11705(b\3)

which provides that motor carriers are liable for dam-

ages resulting “from the imposition of rates... the

Commission finds to be in violation” of the Act. This

means that a motor carrier is liable for the imposition

of filed rates which violate the Act only if the ICC,

and not a court, so concludes.

Accordingly, the ICC plays the exclusive role in

deciding the reasonableness of a motor carrier’s filed

rates and practices relating to past shipments when

such reasonableness is raised by a shipper in a court

action. That its decisions may only be implemented

by a court does not diminish in any respect the ICC’s

plenary and exclusive statutory authority to decide

such issues."” An ICC finding of unreasonableness is

binding on the carrier unless such determination is

set aside by the referring court. /nterstate Commerce

* See, e.g., United States v. Western Pacific Railroad Co., 352

U.S. 59 (1956) (“Western Pacific’), Great Northern Ry. v. Mer-

chants Elevator Co., 259 U.S. 285 (1922) (“Great Northern’’),

Hewitt-Robins Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84

(1962) (““Hewitt-Robins’’), Seaboard, supra, 794 F.2d at 638;

Western, supra, 682 F.2d at 1231.

“ An agency need not have power to provide the ultimate

relief sought in the court action in order to decide issues en-

trusted to it by the statute. Hewitt-Robins, supra, 371 U.S. at

8Y.

16

Commission v. Atlantic Coast Line R.R., 383 U.S.

576 (1966); Pennsylvania Railroad Co. v. United

States, 363 U.S. 202, 205 (1960); United States v.

Pierce Auto Freight Lines, 327 U.S. 515, 536 (1946);

McLean Trucking Co. v. United States, 321 U.S. 67,

87 (1944); Mississippi Valley Barge Line Co. v. United

States, 292 U.S. 282, 286 (1934); 1.C.C. v. Union Pa-

cific R.R. Co., 222 U.S. 541, 547 (1912); Locust Car-

tage Co. v. Transamerican Freight Lines, Inc., 430

F.2d 334, 341 (1st Cir. 1970).

As the Commission stated in Informal Procedure

For Determining Motor Carrier and Freight For-

warder Reparation, 335 1.C.C. 403, 413 (1969) “Con-

gress ... establish[ed] a judicial reference procedure

for recovery of reparations by shippers by specifically

providing that before a court can award reparations

the Commission must determine the extent that the

rate or rates in issue ‘have been unjust and unrea-

sonable, or unjustly discriminatory or unduly prefer-

ential or unduly prejudicial.’ ’’ See also United States

v. Associated Transport, Inc., 505 F.2d 366 (D.C. Cir.

1974) (‘‘Associated Transport’’); National Motor

Freight Traffic Ass'n. v. United States, 268 F.Supp.

90, 92 (D.D.C. 1967), affd. per curiam, 393 U.S. 18

(1968) (“National Motor Freight’’).

Numerous courts have confirmed the ICC’s exclu-

sive statutory authority to prohibit the collection of

a motor carrier's filed rates because of the carrier's

past unreasonable practices. See, e.g., Delta Traffic

Service, supra, 893 F.2d at 474; Seaboard, supra, 794

F.2d at 638; West Coast, supra, 893 F.2d at 1027;

Carrers Traffic Service, supra, 881 F.2d at 481, 485

(‘for a number of years, the ICC has exercised its

‘unreasonable practice’ jurisdiction to declare appli-

17

cation of filed rates unreasonable’) (“we ... uphold

the ICC’s exercise of its ‘unreasonable practice’ ju-

risdiction to invalidate the retroactive application of

a higher tariff rate’). Other courts have recognized

the discretion of the ICC, in regulating the motor

carrier industry, to declare practices unreasonable un-

der other sections of the Act, such as Section 11701(a),

which provides that if the ICC finds that a carrier is

violating the Act, it “shall take appropriate actions

to compel compliance” therewith. See e.g., Western,

supra, 682 F.2d at 1231, 1232 (Only ICC has statu-

tory authority to decide unreasonableness defense to

motor carrier undercharge claim).

Even apart from the statute and the decisions

thereunder establishing the ICC’s authority to bar the

collection of filed rates on the basis of a motor car-

rier’s past practices, this Court has held that the

Commission has the exclusive and independent power

to decide if a motor carrier’s past rate-related prac-

tices are unreasonable. In Hewitt-Robins, supra, the

Court decided that a shipper’s claim for damages for

unreasonable routing practices by a motor carrier was

within the ICC’s primary jurisdiction. 371 U.S. at 87.

The shipper’s challenge was directed not at the rea-

sonableness of the carrier's rates, but at its misrout-

ing practices. Jd. The Court found that “‘[t}he practice

of the Commission in making such determination [as

to motor carrier practices] in the first instance, even

though it has no power to award reparations in a

given case, has long been exercised..." 371 U.S. at

89. (Emphasis supplied).

It is therefore clear that not only does the Com-

mission possess exclusive authority under the Act to

award “reparations” for past unreasonable motor car-

18

rier practices, but even in the absence of such sta-

tutory power, it may do so under Hewitt-Robins."' See

also Northern Pacific Ry. v. Solum, 247 U.S. 477.

483 (1918) (“the rule which requires... preliminary

determination of administrative questions by the Com-

mission applies .. . to any practice of the carrier which

gives rise to the applicaticn of a rate’); Great North-

ern, supra, 259 U.S. at 291.

Petitioners argue, however, that the decision of the

court below that the filed rates could not be collected

created a remedy for the shipper “where none in-

dependently exists in either the courts or the ICC.”

(Pet. Br. 13, 16). If by “independent” authority

petitioners mean “sole” authority, they are correct

only to the extent that complaints involving motor

carrier rates and practices must, as discussed, be filed

initially with a court; but the decision on the merits

as to the lawfulness of the rates and practices is -

rendered by the ICC. Pursuant to Sections 10701(a)

and 11705(b\3), the ICC—and not a court—can waive

the collection of past rates, with such order then en-

forced by the courts. That the remedy may not be

granted by the ICC “independently” is irrelevant.

Such independence is not required by the Act; in-

stead, a joint procedure is specifically prescribed."

' Hewitt-Robins, therefore, provides no assistance to

petitioners. (Pet. Br. 18-19). Even assuming the ICC has no

statutory authority to decide the reasonableness of past motor

carner practices (an unfounded assumption), such jurisdiction is

in any event conferred by that decision, which recognizes the

ICC's exclusive and plenary powers over motor carrier practices.

“In contending that the court of appeals erred in relying upon

the decision in Seabvard, supra (Pet. Br 16-18), petitioners again

claim that the difference between the ICC’s powers over rail

19

The authority relied upon by petitioners in support

of their contention that the ICC has no independent

power to bar the collection of filed rates, is inapposite.

(Pet. Br. 13-16). In both Montana-Dakota Utilities Co.

v. Northwestern Public Service Co., 341 U.S. 246

(1951) and T.1.M.E., Inc. v. United States, 359 U.S.

464 (1959), the involved agency had no authority to

provide the relief sought. In Montana-Dakota, a utility

company filed suit in federal court seeking reparations

for unreasonable electric rates. The Court concluded

that since the Federal Power Commission had no

power to grant reparations, 341 U.S. at 254, 258, and

since a district court cannot decide the reasonableness

of a rate, Jd. at 251-252, the complaint failed to state

a cause of action. As shown herein, the ICC has au-

thority, under the statute and the decisions of this

Court, to decide the lawfulness of past motor carrier

rates and practices.

The decision in T.J.M.E. concluded that the 1935

Motor Carrier Act did not provide a cause of action

to shippers for the recovery of past unreasonable

rates, nor did it permit them to assert unreasonable-

ness as a defense-to undercharge suits. 359 U.S. at

470. Correct as this decision may have been in 1959,

it was overruled in 1965 when Congress enacted leg-

rates and practices, on the one hand, and motor rates and prac-

tices, on the other, invalidates the ICC's action in this case.

However, as discussed, despite the differences in procedure, the

ICC has exclusive jurisdiction to decide motor carrier cases. The

fact that a shipper’s complaint in such cases is filed with a court

pursuant to Section 11706(c2) of the Act instead of directly

with the ICC is of no substantive significance and does not, as

petitioners claim, vest exclusive jurisdiction in the court. (Pet.

Br. 17).

20

islation, now codified as Section 11705(b\3),'* provid-

ing a statutory reparations remedy in the ICC. That

legislation, along with the ICC’s reasonableness ju-

risdiction and the Hewitt-Robins decision, empowers

the ICC to grant the relief it provided in this case.“

Petitioners further claim that the legislative history

of the 1965 amendments to the Act supports their

position that the ICC may not order the waiver of

filed rates because of a carrier's past practices. (Pet.

Br. 18-24). The short answer to this contention is

that, in light of the plain statutory language, the leg-

islative history is irrelevant. Sections 10701(a) and

11705(bM3) provide for the waiver of filed rates by

the ICC; accordingly, they authorized the Commis-

sion’s action in this case. The ICC decided that it

would be an unreasonable practice in violation of Sec-

tion 10701(a) for Quinn to collect its filed rates from

Primary—rather than the lower negotiated rates—for

certain past shipments. The Commission reviewed

Quinn's practices under the standards of its exclusive

reasonableness jurisdiction and concluded that such

practices, which included the attempted collection of

its filed rates, were unreasonable and barred such

" Pub. L. No. 89-170, 79 Stat. 651-652.

* Petitioners allege (Pet. Br. 14-15), that Section 10701(a) does

not afford shippers “a cause of action or defense” for a carrier's

violation of that Section. They fail, however, to go the next

step. Both Section 11705(bM3) and the decision in Hewitt-Rohins.

supra, afford such remedy in conjunction with a finding by the

ICC that imposition of a motor carrier rate violates Section

1070\(a). Similarly, petitioners’ argument that there is no com-

mon law right to a reasonable rate (Pet. Br. 15-16) is immaterial.

The ICC's decision below was founded on its statutory authority

over unreasonable motor carner practices.

21

collection. The ICC’s decision constituted a finding as

to the lawfulness of both Quinn’s rates and practices;

it sustained Primary’s claim that the negotiated

srates—and not the filed rates—were the maximum

lawful and reasonable rates it should be required to

pay.

Section 11705(b\3) authorizes the ICC to award

damages for the imposition of rates it finds to be in

violation of the Act. Contrary to petitioners’ claim

(Pet. Br. 23-24), the relief is not limited to those rates

which are unreasonable; instead, it encompasses the

imposition of rates the ICC “finds to be in violation

of’ any provision of the statute. bp ay a het

guage embraces the ICC’s finding that Quinn’s col-

lection of the filed rates would be an unreasonable

under Section 10701(a). In other words, the

Commission concluded, in the language of Section

11705(b\X3), that it would violate the Act for the filed

rates to be imposed on the shipper’s traffic. Its de-

cision barring the collection of those rates is, there-

fore, a decision the ICC is empowered under Section

11705(bK3) to make.'”

The very legislative history of the 1965 amendments to the

Act upon which petitioners rely, which amended former Section

204a and is now codified as Section 11705(bM3), confirms the

ICC's statutory authority to bar the collection of filed rates

because of the unreasonableness of past motor carrier practices.

The House Report's summary states that:

[The act] would permit a court of competent jurisdic-

tion to award reparations to persons inyured through

violations of the Interstate Commerce Act by motor

carriers.... This would be accomplished in accord-

ance with established judicial reference procedures un-

der which the Commission would be called upon to

22

changes in this limitation were made by the Act's

1978 recodification. (Pet. Br. 19-20, n. 11). But the

cretion to fashion appropriate remedies, not specifi

—

aid the court by making necessary administrative de.

‘erminations relating to the amount of reparations.

H.R. Rep No. 253, 89th Cong., Ist Sess 12-13 (1965). (Emphasis

supplied) Accordingly, the ICC, in tandem with the referring

court, is empowered to grant relief for past “violations” of the

Act by motor carriers, which includes unreasonable practices

also, Southern Pacific Transportation Co. v. Com-

mercial Metals Co., 456 U.S. 336, 352 (1982) (“The

remedies for a carrier's violation of the regulations

ga?

eee

ti

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EE

Pa

3

z

Me

Te

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isthe

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a rata

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58 e

icc

The ICC's exclusive authority to decide the rea-

i

7

|

.

empowered to decide them.” For example, in Teras

* Because of the ICC's exclusive jurisdiction to decide the

25

& P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426,

448 (1907), the Court stated:

“{An action] predicated upon the unreason-

ableness of the established rate must under

the act to regulate commerce, primarily in-

voke redress through the Interstate Com-

merce Commission, which body alone is

vested with power originally to entertain pro-

ceedings for the alteration of an established

schedule, because the rates fixed therein are

unreasonable...”

And as Justice Brandeis said in Great Northern, su-

pra, 259 U.S. at 291 (1922): ‘“‘Whenever a rate, rule,

or practice is attacked as unreasonable or as unjustly

discriminatory, there must be preliminary resort to

the Commission”’.

The Court held in Western Pacific, supra, 352 U.S.

59, that where a defense of unreasonableness is raised

by a shipper in a suit by a carrier to recover under-

charges, a court has no jurisdiction to decide that

defense; instead, it must refer the matter to the ICC

for an initial determination just as if the issue had

been raised in a reparations action by the shipper.

The Court explained that the doctrine of primary ju-

‘sdiction:

“{A}pplies where a claim is originally cogniz-

able in the courts, and comes into play when-

ever enforcement of the claim requires the

resolution of issues which, under a regulatory

scheme, have been placed within the special

issues here presented, referral of those issues to it was not a

“procedural improvisation’ (Pet. Br. 12)—it was a procedural

requirement.

26

competence of an administrative body; in such

a case the judicial process is suspended pend-

ing referral of such issues to the administra-

tive body for its views.”

Id. at 63-64. Specifically with respect to an issue

as to the reasonableness of a tariff, the Court noted

that such issue is “recognized by all to be one for

the Interstate Commerce Commission’’. Jd. at 68."

And, quoting from the decision in Union Pacific R.

Co. v. United States, 111 F.Supp. 266 (Ct. Cl. 1953),

the Court observed thet: “T]he question of the rea-

sonableness of rates is a matter entrusted by Con-

gress solely to the Interstate Commerce Commission.”’

Id. at 69, n. 10. More recently, in Chicago & N.W.

Transp. v. Kalo Brick & Tile, 450 U.S. 311, 325

(1981), the Court again stated that: “The judgment

as to what constitutes reasonableness belongs exclu-

sively to the [Interstate Commerce] Commission.” In

Hewitt-Robins, supra, the Court confirmed that the

ICC’s primary jurisdiction extends not only to the

issue of the reasonableness of a carrier’s rates, but

also to issues as to the reasonableness of its rate-

related practices. 371 U.S. at 88.

Other courts have similarly held that the ICC must,

in the first instance, decide whether the practices

engaged in by carriers subject to its jurisdiction pass

muster under the Act. For example, the United States

Court of Appeals for the 8th Circuit has held that:

‘When Congress amended Part II of the Act in 1965 to

permit shippers to recover for past unreasonable motor carrier

charges, it recognized the need for the referral to the ICC of

such cases. (The ICC “would be called upon to aid the court by

making necessary administrative determinations.’’) H.R. Rep. No.

253, 89th Cong. Ist Sess., pp. 12, 13 (1965).

27

“The doctrine of primary jurisdiction requires the

court to refer the matter to the ICC when, as here,

the claim presented to the court requires an inquiry

into the lawfulness of a carrier’s practice ....’’ lowa

Beef Processors v. Ill. Central Gulf R. Co., 685 F.2d

255, 260-261 (1982) (citing General American Tank

Car Corp. v. El Dorado Terminal Co., 308 U.S. 422,

431-432 (1940)). ‘[T]he court should have stayed its

hand pending the Commission’s determination of the

lawfulness and reasonableness of the practice under

the terms of the Act...” And in Western, supra,

682 F.2d at 1232, the court of appeals reversed a

district court decision that a tariff notation was un-

reasonable, since ‘‘{[O]nly the ICC can do that... °’™

'* See also Baltimore & Ohio Railroad v. United States, 305

U.S. 507 (1939); Interstate Commerce Commission v. Atlantic

Coast Line R. Co., 383 U.S. 576, 579-580 (1966); St. Louis,

Brownsville & Mexico Ry. Co. v. Brownsville Navigation District,

304 U.S. 295, 301 (1938); Nader v. Allegheny Airlines, Inc., 426

U.S. 290, 304 (1976); Far East Conference v. United States, 342

U.S. 570, 574-575 (1952); Pennsylvania R. Co. v. Clark Brothers

Coal Mining Co., 238 U.S. 456, 469 (1915); In re Penn Central

Transportation Co., 477 F.2d 841, 844 (3rd Cir. 1973), cert.

denied, 414 U.S. 923 (1973); Chicago RJ. & P.R. Co. v. Fur-

niture Forwarders of St. Louis, Inc., 420 F.2d 385, 386-389 (8th

Cir. 1970); Middlewest Motor Freight Bureau v. U.S., 433 F.2d

212, 222 (8th Cir. 1970), cert. denied, 402 U.S. 999 (1971); Sea-

hoard, supra, 794 F.2d at 638 (‘finding a carrier practice un-

reasonable is the kind of determination that lies in the primary

jurisdiction of the Commission.’’); Hansen v. Norfolk & W. Ry.

Co., 689 F.2d 707 (7th Cir. 1982); Associated Transport, supra,

505 F.2d at 369; L’nited States v. United States Steel Corp., 645

F.2d 1285, 1291 (8th Cir. 1981); INF, Ltd. v. Spectro Alloys

Corp., 881 F.2d 546, 548 (8th Cir. 1989), petition for cert. filed,

58 U S.L.W. 3412 (U.S. Dee. 14, 1989) (No. 89-936); West Coast,

supra, 893 F.2d 1016; Delta Traffic, supra, 893 F.2d 472; Na-

tional Motor Freight, supra, 268 F. Supp. at 92. But see,

28

The ICC possesses exclusive authority to address

the question of what rate may be charged by a car-

rier. Hence, if a motor carrier brings an action for

undercharges and the shipper asserts the defense that

collection of the undercharges would be an unreason-

able practice in violation of the Act, the court case

must be stayed and the matter referred to the ICC.

The court below correctly concluded that, under well-

settled principles of primary jurisdiction, the unrea-

sonable practice issue involved in this case was re-

quired to be referred to the Commission for its

determination.

CONCLUSION

For the foregoing reasons, the ICC’s decision in

this case was a proper exercise of the authority con-

ferred upon it by the Act and by the decisions of this

Court. Accordingly, the decision of the court below

should be affirmed.

Respectfully submitted,

OF COUNSEL: WILLIAM H. BORGHESANI, JR.

Counsel of Record

KELLER AND HECKMAN TERRENCE D. JONES

1150 17th Street, N.W. MARTIN W. BERCOVICI

Suite 1000 Marcia K. Cowan

Washington, D.C. 20036 1150 17th Street, N.W.

Suite 1000

Washington, D.C. 20036

(202) 956-5600

April 2, 1990 Attorneys for Amici Curiae

Supreme Beef Processors, Ine. v. Yaquinto, 864 F.2d 388, 393

(5th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3036 (U.S.

May 30, 1989) (No. 88-1958).