Amicus Curiae Brief — Interstate Commerce Commission v. Atlantic Coast Line R.

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Dae ea f oa

INDEX

INTEREST OF THE NaTiIonaL INpusTRIAL TRAFFIC LEAGUE

IN THE Issues Here INVOLVED ..............000+5

cL cede wee perk aad nee eer edneey eneneds

Appenpix A—RELEvANT Portions oF STATUTES INVOLVED

CITATIONS

CasES:

ACE Lines, Ine. v. United States, 197 F. Supp. 591

BEET ere

Atlantic Coast Line Railroad Co. v. United States, 213

CE Lai eecccvtekeneseebndVieesss

Baldwin v. Milling Co., 307 U. S. 478 (1939) ..........

Carolina Scenic Stages v. United States, 202 F. Supp.

a ne

LC.C. v. Atlantic Coast Line R. Co., 334 F. 2d 46 ......

Malone Freight Lines, Inc. v. United States, 204 F.

Supp. 745 (D. C. Alabama 1962) ................

Meeker & Co. v. Lehigh Valley R. R., 236 U. S. 412

a aaa 4

Michigan Public Service Commission v. United States,

162 F. Supp. 670 (D. C. Michigan 1958) .........

Mills v. Lehigh Valley R. R., 238 U. 8S. 473, 482 (1915)..

Missouri, Pacific & Express, Inc. v. United States, 165

wee. Ort (D.C. Tay. WGG6) 2. nc cccccccccececs

Morgan Co. v. Great Northern Ry. Co., 285 Fed. 876,

EE SUED vc os nc cdecvesneveectecees

Motor Freight Express, Inc. v. United States, 60 F.

Supp. 238 (D. C. Pennsylvania 1945) ............

Pennsylvania R. R. v. Jacoby & Co., 242 U. S. 89, 94

PT ect lche nese dice ces buehooudkheneeeae aie

Pennsylvania R. R. v. Weber, 257 U.S. 85, 90 (1921) ..

Spiller v. A. T. & S. F. Ry., 253 U. S. 117, 131 (1920) ..

Page

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7

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il Index Continued

Page

STATUTES:

Interstate Commerce Act, 49 U.S.C. §§1 et seq.

EE DUE 666 00S vceseus suenn vecdeencéus 3 et seq.

Section BEE <ebidnadpenevstendesiacceswesands 6,7

Judiciary Act, 28 U.S.C. §§ 1 et seq.

EE cic bvicccentaekcdsevetresusenveeds 6

EE is Canuavetueb own casenvevessennseet 6

EE veidccctnn cad eeseesnvesesonveredade 6

MISCELLANEOUS:

49 Code of Federal Regulations 142.1b.............. +

Sharfman, The Interstate Commerce Commission, A

Study in Administrative Law and Procedure, Part

oo ee rere Teer Tr TTT Te 7

IN THE

Supreme Court of the United States

OcToBEeR TERM, 1964

No.

INTERSTATE COMMERCE CoMMISSION, Petitioner

v.

ATLANTIC Coast Live R. Co., Intino1s Centra R. Co.,

Cuicaco & Eastern Iniinors R. Co., THe Baurt-

MORE & OHIO R. Co., CHicaco, Burtinaton &

Quincy R. Co., CH1caco, MILWAUKEE, St. Pau &

Paciric R. Co., GuLr, Mosite & Onto R. Co., THE

New York CenTRAL R. Co., WaBAsH RAILROAD Co.,

Respondents

BRIEF OF THE NATIONAL INDUSTRIAL TRAFFIC

LEAGUE AS AMICUS CURIAE IN SUPPORT OF THE

GRANT OF THE PETITION OF THE INTERSTATE

COMMERCE COMMISSION FOR A WRIT OF CERTI.

ORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SE

Under date of October 20, 1964, the Interstate

Commerce Commission filed a petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit entered J uly 8,

1964 in I.C.C. v. Atlantic Coast Line R. Co., 334 F. 2d

sith

SEL O ELLE LEMIRE SLE O ES NTE I SI I TET CO _}

aioe,

2

46. The judgment affirmed the judgment of the United

States District Court for the Middle District of Florida,

entered -Tanuary 9, 1963, in Atlantic Coast Line Rail-

road Co. v. United States, 213 F. Supp. 19 (1963),

The text’ of both of said decisions is set forth in the

Appendix to the I C.C. petition. The National Indus-

trial Traffic League files this brief as amicus curiae in

support of the granting of the foregoing petition of

the Interstate Commerce Commission herein.

INTEREST OF THE NATIONAL INDUSTRIAL TRAFFIC

LEAGUE IN THE ISSUES HERE INVOLVED

The National Industrial Traffic League (hereinafter

sometimes referred to as the League) is a voluntary

organization of shippers and associations of shippers

throughout the United States. The League’s members

account for a very substantial portion of the traffic

transported annually by railroads and other modes of

transportation throughout the United States. The

League’s membership runs the entire gamut of the

American shipping public, including large numbers of

small and medium size industrial and commercial com-

panies. The members of the League as shippers pay

and bear the freight rates and charges of the railroads

they employ in providing transportation service.

Unless reversed, the decision and judgment of the

Court below will produce a drastic and disadvantage-

ous change in the procedure whereby shippers—and

particularly smaller-sized shippers—may obtain rep-

arations when the railroads have exacted unlawful

freight rates and charges for transportation service.

In practical effect, obdurate and litigious railroads,

under the decision of the Court below, will be in a posi-

tion to deny many shippers, especially smaller-sized

3

shippers, any effective remedy for reparations for the

exaction of unlawful freight rates and charges.

The League, pursuant to permission of the Fifth

Circuit, filed a brief as amicus curiae with the court

below. Consents to the filing by the League of this

brief as amicus curiae, executed by counsel for the vari-

ous parties, are being filed simultaneously with this

brief.

The League adopts as its own the representations of

the I.C.C. in its petition as to Jurisdiction (page 2),

Questions Presented (page 2), Statutes Involved

(page 3) and Statement Of The Case (pages 3 to 5).

The League also adopts the I.C.C. representations as

to Reasons For Granting The Writ (pages 5 to 14), but

desires as amicus curiae to supplement the latter as set

forth below.

ARGUMENT

The National Industrial Traffic League submits (1)

that the instant case presents issues of tremendous im-

portance to the shipping public; (2) that the practical

effect of the decision of the court below is to render

Section 16(2) of the Interstate Commerce Act in large

part a nullity; (3) that the decision and judgment below

are erroneous as a matter of law.

As this court has had reason to observe on many

occasions, one of the primary purposes of the Congress

in passing the Interstate Commerce Act, and the

amendments thereto, is to protect the members of the

shipping public from unlawful abuses perpetrated by

powerful, far-flung railroads on which shippers depend

in such large measure for transportation service, Ship-

pers are particularly at the mercy of arbitrary rail-

roads in the matter of unlawful rates. Requiring the

Da ee oe ce ae ae ee ee

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transportation service to move their traffic, shippers

must pay railroad freight invoices within 96 and 120

hours, under penalty of law.*

Congress has been very specific in affording shippers

a feasible method, with minimum burden of expense,

whereby they may obtain reparations. This was accom-

plished by the enactment of Section 16(2) of the Inter-

state Commerce Act, 49 U.S.C. 16(2), set forth in

Appendix A hereof.

Congress clearly endeavored to counter-balance the

scales when a shipper obtains a reparations order and

the railroads decline or refuse to pay. For example,

Congress conferred upon the shipper considerable flexi-

bility as to the forum he can use. The shipper can sue

in the U. S. District Court in which he resides, or in

which is located the principal operating office of the

railroad, or through which the road of the carrier runs,

In its concern for shippers as they seek relief against

powerful railroads Congress went even further. It

also made available to the shipper the forum of any

state court of general jurisdiction having jurisdiction

of the parties. Further, the findings and order of the

Commission are to be prima facie evidence of the facts

therein stated. If the shipper ultimately prevails, un-

der Section 16(2) Congress has also provided that the

shipper shall be allowed a reasonable attorney’s fee, to

ke taxed and collected as part of the suit.

These are substantial advantages intentionally and

deliberately made available to shippers by the Con-

gress under Section 16(2) of the Interstate Commerce

Act. See Meeker & Co. v. Lehigh Valley R. R., 236

* See 49 Code of Federal Regulations 142.1 b.

aa a aa Ec ae a ee —S

5

U. S. 412 (1915) at page 433; Baldwin v. Milling Co.,

307 U. S. 478 (1939) at pages 481-483.

By virtue of Section 16(2) shippers who have re-

ceived a reparation award from the Commission, which

the carriers can refuse to pay, have had a feasible

avenue of relief of tremendous importance, especially

when the award is a modest one or when the financial

resources of the shipper to pursue litigation are

limited regardless of the size of the reparation award.

In one fell swoop the decision of the court below

would, in practical effect, eviscerate these protective

provisions of Section 16(2) of the Interstate Commerce

Act. Uuder that decision, the railroads are enabled

to rush to a courthouse of their own selection and

effectively prevent the shipper from taking steps under

Section 16(2). In the very case now before this Court

the effort of the shipper to avail itself of its remedy

under Section 16(2) has thus far come to naught, and

will come to naught if the decision below is allowed to

stand.

Of what use are the remedies under Section 16(2) to

asmall shipper in New York if the railroads ean insti-

tute suit in Florida attacking the reparation award the

shipper obtained from the I.C.C., before the shipper

even determines upon the forum he will use? Indeed,

while the shipper is still hoping and expecting that the

railroads will acquiesce in the I.C.C. reparation award,

so that he is not even thinking of suing pursuant to

Section 16(2), the railroad defendants can select the

forum of maximum inconvenience to the shipper, bring

suit against the 1.C.C., not the shipper, and hope the

shipper will abandon his claim, in view of the financial

6

expenditures such litigation will entail for the shipper,

Under such circumstances the Section 16(2) remedy for

shippers so carefully fashioned by Congress would be-

come a snare and an illusion.

The loss .to shippers of the substantial benefits of

Section 16(2), under the interpretation of the court be-

low, would be an unmitigated disaster for the shippers

of the United States. They will be left to the whim

of the powerful railroads, with their far-flung opera-

tions and sizeable legal staffs who will pick and choose

the forums. One may be sure, such forums will involve

maximum expense and inconvenience to shippers.

Such a result makes a mockery of the effort of Con-

gress to delineate the manner in which orders awarding

reparations to shippers shall come before the courts.

The court below relies upon 28 U. 8. Code 1336, 1398,

2321 and Section 17(9) of the Interstate Commerce

Act. These are set forth in Appendix A hereto. 28

U.S.C. 2321 explicitly contains the excluding words

‘¢., . any order of the Interstate Commerce Commis-

sion other than for the payment of money ...’’ 28

U.S.C. 13836 commences with the clause ‘‘ Except as

otherwise provided by Act of Congress....’’ 28 U.S.C.

1398 expressly begins: ‘‘Except as otherwise provided

by law...”’

The League submits that the quoted excluding and

excepting clauses refer to provisicus such as Section

16(2). These clauses point necessarily to the opposite

conclusion to that reached by the Court below. This

is all the more so when, as we have seen, the interpre-

~ tation of the Court below will render Section 16(2) a

pious platitude and little more.

REECE BN IR EDDIE I DELLE EL IONE ELE BRA TTEW IES IORI tL ROE OE

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The reliance of the court below upon Section 17(9)

of the Interstate Commerce Act is also without warrant.

It has always been recognized by the Court that only

an order which is ‘‘final’’ in nature is reviewable.

Missouri, Pacific & Express, Inc. v. United States, 165

F. Supp. 677 (D.C. Ky. 1958) ; Michigan Public Serv-

ice Commission v. United States, 162 F. Supp. 670

(D.C. Michigan 1958); Carolina Scenic Stages v.

United States, 202 F. Supp. 919 (D.C. S.C. 1962) ;

Malone Freight Lines, Inc. v. United States, 204 F.

Supp. 745 (D.C. Alabama 1962); AEC Lines, Ine. v.

United States, 197 F. Supp. 591 (D.C. Iowa 1960).

By the explicit terms of Section 16(2) a reparation

order of the Interstate Commerce Commission is not

such a final order. It is ‘‘prima facie evidence’’, and

nothing more, by precise definition in the statute. Pro-

fessor Sharfman, one of the leading authorities on the

Interstate Commerce Act, in his monumental treatise,

noted that a reparation order is “‘. . . not legally bind-

ing upon the carrier.’’ See Sharfman, Interstate Com-

merce Commission, a Study in Administrative Law

and Procedure, Part III-B, Page 330 (1936). The

Commission’s reparation order merely forms prima

facie evidence of the matters therein stated at the sepa-

rate court action. Morgan Co. v. Great Northern Ry.

Co., 285 Fed. 876, 878 (7th Circuit, 1923); Meeker &

Co. v. Lehigh Valley R. R., 236 U. S. 412, 439 (1915) ;

Mills v. Lehigh Valley R.R., 238 U. 8. 473, 482 (1915) ;

Pennsylvania R.R. v. Jacoby & Co., 242 U. 8. 89, 94

(1916) ; Spiller v. A.T. & S. F. Ry., 253 U. 8. 117, 131

(1920) ; Pennsylvania R. R. v. Weber, 257 U.S. 85, 90

—€4921);—

ae,

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Orders of the Interstate Commerce Commission are

not subject to judicial review if they do not command

carriers to do or refrain from doing anything, grant

or withhold any authority, privilege, or license, extend

or enlarge any power or facility, subject carrier to any

liability, civil er criminal, change carriers’ existing or

future status or condition, or determine any right or

obligation. Motor Freight Express, Inc. v. United

States, 60 F. Supp. 238 (D.C. Pennsylvania 1945). In

the case at hand, the so-called ‘“rder’’ of the Com-

mission did not subject the carrier to any civil or

criminal liability or otherwise meet the foregoing re-

quirements. While the order entered by the Commis-

sion ‘‘authorized and directed’’ the carrier to pay rep-

aration to the shipper, such an order is not itself en-

forceable.

The court below makes much of ‘‘the statutory

scheme’’ and ‘‘symmetry’’. The National Industrial

Traffic League submits that the Congress in its wisdom

enacted Section 16(2) for the protection of shippers

in their up-hill, uneven struggle when in dispute with

the powerful railroads of the nation. The decision o:

the court below will reduce the carefully constructed

statutory scheme for the assistance of shippers to a

shambles, and leave countless shippers throughout the

country without an effective remedy for recovering,

through reparations, freight rates and changes unlaw-

fully exacted. Shippers and railroads have functioned

well under the provisions of Section 16(2) for many

decades with no serious disturbance to the ‘‘symmetry”

mentioned by the court below. In effect the court below

would repeal the protective provisions of Section 16(2)

by judicial fiat, to the serious and substantial detriment

of the shippers of this nation.

9

CONCLUSION

The National Industrial Traffic League as amicus

curiae submits that the instant case involves issues of

far-reaching importance to the shippers of the United

States, and of vital significance to the administration

of the Interstate Commerce Act. The decision of the

court below is in flagrant conflict with the governing

statutes and with the principles pertaining thereto

promulgated by the federal courts, including this Court.

It is urged that a writ of certiorari to review the judg-

ment of the court below be granted.

Respectfully submitted,

THE NATIONAL INDUSTRIAL TRAFFIC LEAGUE

711 14th St., N. W.

Washington, D. C.

Amicus Curiae

By: Joun F. DoneLan

JOHN M. CLEARY

700 Brawner Building

888 17th St., N. W.

Washington, D. C. 20006

Attorneys

October 28, 1964

10

APPENDIX A

Relevant Portions of Statutes Involved

Section 16(2) of the Interstate Commerce Act, 49 U.S.C.

§ 16(2), provides:

If a carrier does not comply with an order for the

payment of money within the time limit in such order,

the complainant, or any person for whose benefit such

order was made, may file in the district court of the

United States for the district in which he resides or in

which is located the principal operating office of the

carrier, or through which the road of the carrier runs,

or in any State court of general jurisdiction having

jurisdiction of the parties, a complaint setting forth

briefly the causes for which he claims damages, and

the order of the Commission in the premises. Such

suit in the district court of the United States shall pro-

ceed in all respects like other civil suits for damages,

except that on the trial of such suit the findings and

order of the Commission shall be prima facie evidence

of the facts therein stated, and except that the plaintiff

shall not be liable for costs in the district court nor

for costs at any subsequent stage of the proceedings

unless they accrue upon his appeal. If the plaintiff

shall finally prevail he shall be allowed a reasonable

attorney’s fee, to be taxed and collected as a part of

the costs of the suit.

Section 17(9) of the Act, 49 U.S.C. § 17(9), provides:

When an application for rehearing, reargument, or

reconsideration of any decision, order, or requirement

of a division, an individual Commissioner, or a board

with respect to any matter assigned or referred to him

or it shall have been made and shall have been denied,

or after rehearing, reargument, or reconsideration

otherwise disposed of, by the Commission or an ap-

pellate division, a suit to enforce, enjoin, suspend, or

pa Srey et AES ES 2% SRT ee — oe

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—

11

set aside such decision, order, or requirement, in whole

or in part, may be brought in a court of the United

States under those provisions of law applicable in the

case of suits to enforce, enjoin, suspend, or set aside

orders of the Commission, but not otherwise.

Section 1336 of the Judicial Code, 28 U.S.C. § 1336, pro-

vides :

Except as otherwise provided by Act of Congress,

the district courts shall have jurisdiction of any civil

action to enforce, enjoin, set aside, annul or suspend,

in whole or in part, any order of the Interstate Com-

merce Commission.

Section 1398 of the Judicial Code, 28 U.S.C. § 1398, pro-

vides :

Except as otherwise provided by law, any civil ac-

tion to enforce, suspend or set aside in whole or in

part an order of the Interstate Commerce Commission

shall be brought only in the judicial district wherein

is the residence or principal office of any of the parties

bringing such action.

Section 2321 of the Judicial Code, 28 U.S.C.A. § 2321,

provides:

The procedure in the district courts in actions to

enforce, suspend, enjoin, annul or set aside in whole

or in part any order of the Interstate Commerce Com-

mission other than for the payment of money or the

collection of fines, penalties and forfeitures, shall be

as provided in this chapter.

The orders, writs, and process of the district courts,

may, in the cases specified in this section and in the

cases and proceedings under sections 20, 23 and 43 of

Title 49, run, be served, and be returnable anywhere

in the United States.