# Petition for a Writ of Certiorari — United States v. Union Pacific Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1950
- **Citation:** 339 U.S. 930

## Text

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CITATIONS
Cases:

Atlantic Coast Line R. R. Co. v. United States, C. Cls.

No. 48826, decided December 5, 1949................
Browder v. United States, 312 U. 8. 335................
Central R. R. Co. of New Jersey v. United States, 60 C.

Cls. 578, certiorari dismissed, 270 U. S. 644..........
Christie-Street Commission Co. v. United States, 136 Fed.

EE Oe hE aE pe EET pee eae
William Danzer Co. v. Gulf R. R., 268 U. S. 633........
Finn v. United States, 123 U. S. 227...................
Fort Pitt Gas Co. v. United States, 49 C. Cls. 224.......
Kahn v. United States, 55 C. Cls. 271, affirmed 257 U. S.

I Qn

NOON

Kansas City So. Ry. v. Wolf, 261 U. 8. 133............

Lancaster v. United States, 60 C. Cls. 80...............

Louisville Cement Co. v. Interstate Commerce Commis-

INT I Sa oa ea ul aoa seks cen e's 8

. MacEvoy Co. v. United States, 322 U.S. 102........... 7
E Mejia v. United States, 152 F. 2d 686, certiorari denied,

B. SRR SPER ESS oat See a Se 8

A Midstate Co. v. Penna. R. Co., 320 U. S. 356. ........... 6,8

; 7

9

rf

Non

Northern Pac. Ry. Co. v. United States, 59 C. Cls. 122...
Phillips v. Grand Trunk Ry., 236 U. S. 662............. 8
Schaff v. United States, 59 C. Cls. 318.................
Seaboard Air Line Kailroad Co. v. United States, 113

C. Cls. 437, certiorari denied, 338 U. S. 848......... 3, 4, 5, 7
Shelton v. United States, 165 F. 2d 241................ rf
Southern Pacific Co. v. United States, 62 C. Cls. 391. .. 6, 9, 10

Stanley v. Schwalby, 147 U.S. 508.................... 11
State of Maryland v. The Baltimore Radio Show, Ine.,
Ee Oi A CUETO e hee ee ee 5
United States v. American Trucking Ass’ns, 310 U. S.
oo See LETT ITT ey ey 10
United States v. Director General, 80 I. C. C.143....... 10,12
United States v. A. S. Kreider Co., 313 U.S. 443....... 7,8

(1)

—_————

nm
Cases—Continued
Page
Wabash Ry. Co. v. United States, 59 C. Cls. 322, affirmed
2, Aion ror rT et oe 7,10
Western Pac. R. R. Co. v. United States, 59 C. Cls. 67,
reversed on other grounds, 268 U.S. 271........--..- j
Statutes:
Act of June 29, 1949, Pub. L. No. 138, 81st Cong., 1st
SM Cd, itn cs aloes Rw aut Nd OS RAEN OLAS he Se 11
Interstate Commerce Act, § 16(3)(a) as amended by the
Transportation Act of 1920, § 424, 41 Stat. 456, 491-
492, the Act of June 7, 1924, 43 Stat. 633, and the
Transportation Act of 1940, §11(a) (2), 54 Stat. 898,
912-913, 49 U. S. C. 16(3)(a).......----- +. sees: 1, 2, 3, 6
ee oe Pes Ly VL REN SERS ed Eee eee KK 11
OS ier nie rere errs rere ne Cee ye 11
SS SERRE Ore Teer Ty eee ee 11
I oo net Can keeway eee bkwewyeseee ts 11
Judicial Code, Sec. 24(20) (now 28 U. S. C. 2401(a)).. 8
Revenue Act of 1926, § 1113(a), 44 Stat. 9,116........ 7
R. S. 3227, 26 U. 8. C. 3772... «1.2 eee ees 7
Transportation Act of 1920, See. 16(3)...........----. 10
eR EN errr re rs errr eee eee 2, 3, 6,9
> Oe , ere ee 9
oS EF & RR errr er eran ne 9
CE ge 2 Spee rrr rr er ere See ees oer 10
Miscellaneous:
Annual Reports of the Interstate Commerce Commission :
No. 27 (1913), pp. 80-81 ..........----- +e ees 10
No. 28 (1914), p. G5... reece eee eee eee 10
No. BD (RO2GD, p. GB... ccc cece eee 10
No. Sl (1017), p. GB... 2... eee eee eee eee 10
94 Cong. Rec. 131... ...... 2... eee eee terete 12
H. Rep. No. 766, 81st Cong., 1st sess., pp. (0 ne gene roe 11
H. R. 2759, 80th Cong., Ist sess............-.----- 0055 12

S. Rep. No. 83, 81st Cong., Ist sess. p.1.........------ 11

Ynthe Supreme Gourt of the United States

OcrToBER TERM, 1949

No. 580
THE UNITED STATES, PETITIONER
Vv.

Union Pactric RarRoap CoMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF CLAIMS

The Solicitor General, on behalf of the United
States, prays that a writ of certiorari issue to re-
view the judgment of the Court of Claims, entered
in the above-entitled case on November 7, 1949.

OPINION BELOW
The opinion of the Court of Claims (R. 8) is
reported at 86 F. Supp. 907.

JURISDICTION
The judgment of the Court of Claims was entered
on November 7, 1949 (R. 8-9). The jurisdiction of
this Court is invoked under 28 U.S. C. 1255.

QUESTION PRESENTED

Whether Section 16(3) (a) of the Interstate Com-
merce Act, requiring that ‘‘all actions * * * by

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~—

carriers * * * for recovery of their charges
* * * shall be begun within two years from the
time the cause of action accrues, and not after
* * *% applies to suits by carriers against the
United States.

STATUTES INVOLVED

The Interstate Commerce Act, § 16(3) (a), as
amended by the Transportation Act of 1920, § 424,
41 Stat. 456, 491-492, the Act of June 7, 1924, 43
Stat. 633, and the Transportation Act of 1940,
§ 11(a) (2), 54 Stat. 898, 912-913, 49 U.S. C. 16(3)
(a), provides:

2

All actions at law by carriers subject to this
Act for recovery of their charges, or any part
thereof, shall be begun within two years from
the time the cause of action accrues, and not
after.

28 U.S. C. 2501 provides:

Every claim of which the Court of Claims
has jurisdiction shall be barred unless the peti-
tionthereonisfiled * * * withinsix years
after such claim first accrues.

STATEMENT

Respondent, a ‘‘common carrier by railroad
* * * engaged in interstate commerce and sub-
ject to the Interstate Commerce Act” (R. 4),
brought this action against the United States to
recover its charges for transportation services
(R. 1-6). The services were rendered at various
times during the period from 1943 to 1946 for the
Federal Surplus Commodities Corporation, the

> ¥
3

Commodity Credit Corporation, the War Food
Administration, and the Production and Market-
ing Administration—all agencies of the Depart-
ment of Agriculture (R. 1,7). After delivery of
each of the shipments in question respondent sub-
mitted its bills in the manner prescribed by the
Comptroller General, but payment was withheld
(R. 1-2, 8).’

This suit was filed on December 22, 1947 (R. 1),
over two years after most of the shipments had been
completed and over four years after the completion
of some (R. 3-6, 8).? The parties stipulated that, if
this action might be maintained within six years
under the general statute of limitations applying
to suits in the Court of Claims (28 U.S. C. 2501,
supra, p. 2) despite the requirement in Section
16(3) (a) of the Interstate Commerce Act (supra,
p- 2) that all actions by carriers for recovery of
their charges be instituted within two years, then
respondent could recover (R. 8). Ina per curiam
opinion relying upon its decision in Seaboard Air
Line Railroad Co. v. United States, 113 C. Cls. 437,
certiorari denied, 338 U. S. 848, the Court of Claims
rejected the Government’s contention that the bulk
of respondent’s claim, based on shipments com-

10f the bills for which respondent sought payment in its
petition to the court below, two were paid and one was with-
drawn before the court’s decision, thus reducing the total ciaim
from $1,844.17 to $1,803.79 (R. 8).

2 Of respondent’s total claim of $1,803.79, $1,685.99 was for
shipments eempleted more than two years prior to this suit and
$117.80 for shipments completed within two years (R. 8).

err

4

pleted more than two years before commencement
of this suit, was barred by Section 16(3) (a) (R. 8).
Accordingly, respondent was awarded a judgment
for the full amount of its claim (R. 9).

REASONS FOR GRANTING THE WRIT

The Court of Claims has adhered to its prior
decision in Seaboard Air Line Railroad Co. Vv.
United States, 113 C. Cls. 437, following the re-
fusal of this Court to review that decision (338 U.S.
848). A survey, made shortly after the decision
in the instant case to determine the present impor-
tance of the question involved, discloses 123 actions,
pending in the Court of Claims and filed more than
two years after completion of their services, in
which carriers are seeking to recover $11,423,799.98
in charges from the Government.‘ In these suits,
the number of which reflects the extent of the Gov-
ernment’s role as the nation’s largest shipper, it is
now futile to continue to interpose the defense
which seems to be afforded by Section 16(3) (a)
of the Interstate Commerce Act. Accordingly no
course is open to the Government in the Court of
Claims, other than to abandon that defense, which
in many of the cases is the only one available, un-
less review of the instant decision can be had. Be-
cause we believe the court below errs in its refusal

3In addition to the instant case, see Atlantic Coast Line
R. R. Co. v. United States, C. Cls. No. 48826, decided Decem-
ber 5, 1949.

4 The same question is involved in approximately 135 cases
now pending in the district courts involving about $465,000.

5

to apply Section 16(3)(a) to suits against the
Government; because of the magnitude, both in
number and amount, of the claims involved; be-
cause of the recurrent character of the problem;
and because of the peculiar factor in relation to
the Seaboard petition discussed in the following
paragraph, we again seek review.

In the Seaboard case (No. 212, this Term), the
brief opposing our petition for certiorari was
rested almost exclusively upon the argument that
the claim involved was for railway mail pay, was
not governed by the provisions of the Interstate
Commerce Act and was therefore of no general im-
portance. While the court below, in dealing with
the present problem, does not suggest any distine-
tion between suits for mail pay and suits for other
transportation charges (see instant opinion, R.
8), it is possible that the argument urged by
the respondent in the Seaboard case has merit, or
at least may have had an important part in the
denial of our petition therein. The question of
importance as to the general applicability of Sec-
tion 16(3)(a) to suits against the Government,
which we thought was presented by the Seaboard
case, cannot be avoided in the case at bar.” Un-
less the Court of Claims is justified in reading the
statutory limitation on ‘‘all actions at law by car-

5 We assume that the denial of certiorari is not to be inter-
preted as expressing any view on the merits of the controversy.
See, e.g., the opinion of Mr. Justice Frankfurter respecting the
denial of the petition for writ of certiorari in State of Maryland
vy. The Baltimore Radio Show, Inc., 338 U. S. 912, 917-919.

CO ee Se ee ee ee en ee a ba Saat oe ee

6

riers’’ as if it said ‘‘all actions at law by carriers
except actions against the Government,’’ respond-
ent has no right to recover.

1. The inclusive and unambiguous language of
Section 16(3) (a), with no remote suggestion of any
exception, in a comprehensive and frequently re-
considered statute in which exceptions are made
explicit where they are intended, would appear to
preclude the result reached by the court below.
There is nothing in the legislative history or pur-
pose of the section to warrant judicial addition to
the words Congress chose. See Browder v. United
States, 312 U. S. 335, 338. Indeed, the ‘‘ paramount
policy of §16 * * * to secure promptness in
collection * * *’? (Midstate Co. v. Penna. R.
Co., 320 U. S. 356, 367) requires, in serving the
important regulatory purpose of keeping carriers’
financial affairs relatively current, that there be
no exception with respect to the carriers’ largest
single client.

Finding no exception in the plain language of
Section 16(3) (a), the court below justifies its ex-
clusion of suits against the Government essentially
on the grounds that (1) to apply it to such suits
would effect a repeal by implication of 28 U.S. C.
2501, which permits claims over which the Court.
of Claims has jurisdiction to be sued upon within
six years of their accrual (see Southern Pacific Co.

v. United States, 62 C. Cls. 391, 398), and (2) the
Government is different in relevant respects, from

7

other shippers (id. at 399-402).° Neither of these
arguments, we submit, will bear analysis.

Hesitancy to construe statutes as effecting re-
peals by implication is limited by the well-defined
principle that a statute applicable to a specific
class of cases will, within that class, supersede
a more general statute. MacKvoy Co. v. United
States, 322 U.S. 102, 107; Shelton v. United States,
165 F. 2d 241 (C.A.D.C.). This principle, precisely
relevant here, has operated to bar suits against
the Government brought within the six-year juris-
dictional limitation period but not within the lesser
period prescribed for the cause of action under a
specific statute. United States v. A. S. Kreider
Co., 313 U. 8. 443 (five years, under Revenue Act
of 1926, § 1113(a), 44 Stat. 9, 116) ; Christie-Street
Commission Co. v. United States, 136 Fed. 326
(C. A. 8) (two years, under R. 8S. 3227, 26 U.S. C.
3772) ; Kahn v. United States 55, C. Cls. 271, af-
firmed, 257 U. S. 244 (same) ; Fort Pitt Gas Co. v.

® Southern Pacific Co. v. United States, supra, was the first
decision in which the Court of Claims held inapplicable in
suits against the Government the limitations now appearing in
Section 16(3) (a), after announcing a contrary view in earlier
decisions. See Schaff v. United States, 59 C. Cls. 318, 321-322;
Lancaster v. United States, 60 C. Cls. 80; Central R. R. Co. of
New Jersey v. United States, 60 C. Cls. 578, certiorari dis-
missed, 270 U. S. 644; Wabash Ry. Co. v. United States, 59 C.
Cls. 322, affirmed, 270 U.S. 1; Northern Pac. Ry. Co. v. United
States, 59 ©. Cls. 122; Western Pac. R. R. Co. v. United States,
59 C. Cls. 67, reversed on other grounds, 268 U. 8. 271. The
reasoning of the Southern Pacific decision was reaffirmed in
Seaboard Air Line Railroad Co. v. United States, supra, which
is in turn announced as the authority for the present decision.
Accordingly, we direct our arguments here to the grounds
stated by the court in the Southern Pacific case.

8

United States, 49 C. Cls. 224 (same) ; cf. Mejia v.
United States, 152 F, 2d 686 (C. A. 5) certiorari de-
nied, 328 U. S. 862 (one year, Louisiana wrongful
death statute). In United States v. A. S. Kreider
Co., supra, referring to the provision in Section
24(20) of the Judicial Code (now 28 U. S. C.
2401(a) ), fixing for Tucker Act suits in the district
courts the same general six-year limitation applic-
able in the Court of Claims, this Court said (313
U.S. at 447):

We think the quoted language was intended
merely to place an outside limit on the period
within which all suits might be initiated under
§ 24(20). Clearly, nothing in that language
precludes the application of a different and
shorter period of limitation to an individual
class of actions even though they are brought
under § 24(20). Phrasing the condition nega-
tively, Congress left it open to provide less
liberally for particular actions which, because
of special considerations, require different
treatment.

The two-year limitation contained in Section
16(3) (a) is a measure of the carrier’s right to sue
for its charges; lapse of the specified time destroys
the right. Phillips v. Grand Trunk Ry., 236 U.S.
662, 667-668 ; Louisville Cement Co. v. I. C. C., 246
U. 8S. 638, 642; Kansas City So. Ry. v. Wolf, 261
U. S. 133, 138-140; William Danzer Co. v. Gulf
R. R., 268 U. S. 633, 636; Midstate Co. v. Penna.
R. Co., supra. In refusing to enforce this limita-

9

tion in suits against the Government, the court
below endows the merely ‘‘negative’’ restriction
of 28 U. S. C. 2501 with the power of reviving a
cause of action which no longer exists. The six-
year limitation in 28 U. S. C. 2501 applies to claims
‘fof which the Court of Claims has jurisdiction
* * *,”” As applied below, this statute has the
unintended effect of creating a right where there is
no ‘‘claim’’ to which Court of Claims jurisdiction
can attach. Cf. Finn v. United States, 123 U. S.
227, 232; Phillips v. Grand Trunk Ry., supra, at
667.

This result, unwarranted by the principle of
statutory construction invoked by the court below,
finds equally little justification in any supposedly or
actually unique characteristics of the Government
as shipper or litigant. In Southern Pacific Co. v.
United States, supra, the Court of Claims sup-
ported its refusal to apply the two-year limitation
in suits against the Government by pointing to the
presence of two exceptions for Government trans-
portation in the Interstate Commerce Act—49
U. S. C. 22, permitting carriers to provide such
transportation free or at reduced rates, and 49
U.S. C. 3(2), permitting extension of credit to the
Government without authorization by the Inter-
state Commerce Commission. But these provisions
in no way affect either the feasibility or the de-
sirability of requiring carriers to bring suit for
their charges within two years. If anything, such

oS se ie a
10

explicit exceptions for Government transportation
tend to support the conclusion that none were to be
implied elsewhere in the Act.’

Finally, contrary to the suggestion in Southern
Pacific Co. v. United States, supra, at 401, the
carrier is not hindered in suing the Government,
like any other shipper, within two years by the fact
that the Government, required to pay transporta-
tion bills on presentation (49 U. 8. C. 66), may de-
duct any overpayments from amounts subsequently
found to be due the carrier. The carrier’s cause
of action accrues when it makes delivery. If it is
paid no suit is necessary. If it is not paid at all
or only paid in part as a result of a deduction be-
cause of prior overpayments, the carrier’s time to
sue runs from the time when the deduction was
made, not from the time of the original shipment.
Cf. Wabash Ry. Co. v. United States, 59 C. Cls.
322, 327-328, affirmed, 270 U.S. 1. In such cases,

7 This conclusion has been adopted by the Interstate Com-
merce Commission, the repeated recommendations of which
were followed by Congress in enacting, in the Transportation
Act of 1920, the limitation provisions in Section 16(3). See
the following Annual Reports of the I.C.C.: No. 27 (1913) pp.
80-81; No. 28 (1914) p. 65; No. 29 (1915) p. 68; No. 31 (1917)
p. 68. In United States v. Director General, 80 1.C.C. 148,
150-151, that agency, whose interpretations of Interstate Com-
merce Act provisions recommended by it to Congress are
entitled te even more than their ordinarily “great weight”
(United States v. American Trucking Ass’ns, 310 U. S. 534,
549), held that there was nothing in the Act’s exceptions with
respect to the Government which would warrant implying one
where none had been expressed. Indeed, 1t stressed specific ex-
ceptions elsewhere in the Act as a basis for its decision that the
language of Section 16 even included the Government as plain-

tiff.

11

questions relating to earlier shipments, on which
the Government claims overpayments were made,
would be matters of defense for the Government,
not part of the carrier’s cause of action for its
charges presently withheld in whole or in part.

2. The importance of the question herein, meas-
ured in part by the large number of pending suits
in which it is presented (see p. 4, supra), has re-
cently been enhanced by the Act of June 29, 1949,
Pub. L. No. 138, 81st Cong., Ist sess., which adds
to Parts II, III, and IV of the Interstate Com-
merce Act (covering, respectively, motor carriers,
water carriers, and freight forwarders) provisions
establishing the same limitations as those in Part I,
Section 16(3). This statute is designed to estab-
lish uniformity among the four parts of the Act.
S. Rep. No. 83, 81st Cong., Ist sess., p. 1; H. Rep.
No. 766, 81st Cong., 1st sess., pp. 1-2. Referring to
the new provisions, substantially identical in
phraseology with Section 16(3), the House Com-
mittee on Interstate and Foreign Commerce ex-
pressly reserved judgment as to whether they
‘‘apply to proceedings instituted by the United
States but * * * Jeft that question for deter-
mination judicially as appropriate cases may
arise.”’ H. Rep. No. 766, supra, at p. 2.° Earlier,

8 While the quoted language refers to “proceedings instituted
by the United States,” it would be absurd to attribute to Con-
gress the belief that the short statute of limitations might bar
the United States as plaintiff but afford it no protection as de-
fendant. Cf. Stanley v. Schwalby, 147 U. S. 508, 515-517.

12

speaking of identical provisions in a predecessor
bill (H. R. 2759, 80th Cong., Ist sess.), Chairman
Wolverton of the House Committee declared un-
equivocally that their terms would apply to the
Government.’ These congressional views under-
line the need for resolution by this Court of a ques-
tion which now affects the numerous suits against
the Government by carriers of all types in both the
district courts and the Court of Claims.

CONCLUSION
For the reasons stated, it is respectfully sub-
mitted that this petition should be granted.

Puiuie B. PERLMAN,
Solicitor General.

FEBRUARY, 1950.

9“Mr. Wolverton. * * * I think it clear that the limita-
tions for which the bill provides would apply to the United
States as a shipper, just as to any other shippers * * *. I
think, too, that there is every reason why these limitations
should apply to the United States the same as to any other
shipper.” 94 Cong. Rec. 131.

The I. C. C., adhering to its position in United States v.
Director General, supra, mote 7, shares this view. Ibid.

WY u.. S. GOVERNMENT PRINTING OFFICE: 1980 672631 466

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0013%3A1. Public record. Not legal advice.