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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0684%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 116

## Text

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
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z

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isthe
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58 e

icc
The ICC's exclusive authority to decide the rea-

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.

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0684%3A16. Public record. Not legal advice.