ICC v. Atlantic Coast Line R. Co.Annotate this Case
383 U.S. 576 (1966)
U.S. Supreme Court
ICC v. Atlantic Coast Line R. Co., 383 U.S. 576 (1966)
Interstate Commerce Commission v. Atlantic Coast Line R. Co.
Argued December 6, 1965
Decided March 22, 1966
383 U.S. 576
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Upon a complaint by Thomson Phosphate Company, the ICC found that rates on shipments by Thomson on respondent railroads were unjust and unreasonable, and that the shipper was entitled to reparations. The respondents refused to certify Thomson's statements showing shipments made, and then the ICC determined the amount of reparations due and entered an order directing payment. Respondents refused to comply, and brought this suit in the District Court for the Middle District of Florida under §17(9) of the Interstate Commerce Act to enjoin and annul the ICC orders. Thereafter, Thomson brought suit under §16(2) of the Act in the District Court for the Southern District of New York to enforce the ICC's reparation order, but that suit was stayed pending disposition of the carrier-initiated action. The District Court in Florida denied the ICC's motion to dismiss which alleged that the carriers' sole remedy was to defend the suit brought by the shipper under §16(2). The court set aside the ICC order on the ground that Thomson's claim was barred by the statute of limitations. The Court of Appeals sustained the District Court's jurisdiction, and affirmed.
Held: carriers may obtain full review of ICC reparation orders by defending actions brought by shippers under §16(2) of the Act to enforce such orders. The policy underling that section precludes the carriers from obtaining review in a forum other than that chosen by the shippers, but there is no obstacle to a cross-proceeding under §17(9) brought by the carriers in that forum. Pp. 383 U. S. 579-606.
(a) The carriers have ample opportunity to secure review of the ICC's orders through defense of the shipper's §16(2) enforcement action. Pennsylvania R. Co. v. United States,363 U. S. 202, and United States v. Interstate Commerce Comm'n,337 U. S. 426, distinguished, as those cases dealt with situations where the challenged orders could only be reviewed in §17(9) proceedings. Pp. 383 U. S. 589-595.
(b) To effectuate the policy of encouraging prompt payment of reparation awards expressed in §16(2), Congress provided the
shipper with certain procedural and substantive benefits, particularly choice of venue, which would not be available in an action instituted by the carrier under §17(9). Pp. 383 U. S. 595-598.
(c) Limiting review of the ICC's orders to §16(2) enforcement actions would not be likely to result in disparity of treatment of shippers . Pp. 383 U. S. 598-602.
(d) The language and history of the direct review provisions of §17(9) are consistent with limitation of review to the forum selected by the shipper in his enforcement proceeding, and the direct review proceeding may be brought as a cross-action in that forum. Pp. 383 U. S. 603-606.
334 F.2d 46, reversed.
MR. JUSTICE WHITE delivered the opinion of the Court.
This case is before the Court for a determination of when and in what proceedings a common carrier by rail may challenge an order of the Interstate Commerce Commission awarding reparations to a shipper claiming injury because of the carrier's violation of the Act.
A shipper, Thomson Phosphate Company, filed a complaint with the Commission alleging that certain rates charged by respondent railroads were unjust and unreasonable, and seeking reimbursement of those transportation charges to the extent they were unlawful. Interstate Commerce Act §§ 8 and 9, 24 Stat. 382, as amended, 49 U.S.C. §§ 8 and 9 (1964 ed.). The Commission sustained the complaint and issued a report finding that
the assailed rates were unjust and unreasonable, and that the shipper was entitled to reparations. Thomson Phosphate Co. v. Atlantic Coast Line R. Co., 303 I.C.C. 25 (Div. 2, 1958). When respondents refused to certify the shipper's statements showing the shipments made during the period involved, the Commission reopened the proceeding for a determination of the amount of reparations due. After such additional proceedings, the Commission found Thomson was entitled to reparations of $8,889.76 with interest, and an order was entered authorizing and directing respondents to pay such sum by a specified date, later amended to August 28, 1961. 311 I.C.C. 315. Respondents refused to comply with the order, and brought suit in the United States District Court for the Middle District of Florida under § 17(9) of the Interstate Commerce Act, 24 Stat. 385, as amended, 49 U.S.C. § 17(9), and 28 U.S.C. §§ 1336 and 1398 (1964 ed.) to enjoin, set aside, and annul the orders of the Commission. Respondents claimed, inter alia, that the Commission erred in finding the rates unreasonable and in not finding Thomson's claims barred by the Act's limitation provision, Interstate Commerce Act § 16(3), 24 Stat. 384, as amended, 49 U.S.C. § 16(3) (1964 ed.). Thomson, which was not a party to the carriers' action, filed in the Southern District of New York a suit against respondents and other railroads to enforce the Commission's reparation award pursuant to § 16(2) of the Interstate Commerce Act, 49 U.S.C. § 16(2) (1964 ed.). By stipulation, the New York case has been held in abeyance pending the outcome of the Florida case, which is presently before this Court.
The Commission moved to dismiss the carriers' injunction action, contending that reparation orders are not reviewable in such a suit, and that the carriers were required to await the shipper's enforcement action to attack the Commission's order. The Florida District
Court denied the motion to dismiss and, on the merits, held that Thomson's claims were barred by limitations. 213 F.Supp. 199. The sole issue raised on appeal was whether the District Court had jurisdiction. The Court of Appeals affirmed, sustaining the jurisdiction of the Florida District Court. 334 F.2d 46. We granted certiorari because of the importance of this question in the administration of the Act. 379 U.S. 957. We reverse, and hold that, when the Commission issues a reparation order not accompanied by a cease and desist order, a carrier may obtain review of the Commission's order only in the court where the shipper commences its enforcement action -- or where the shipper seeks review of the Commission's order, see Consolo v. Federal Maritime Comm'n, post, p. 383 U. S. 607.
The Interstate Commerce Act contains detailed provisions governing the presentation and adjudication of claims for reparations. Section 8 is the basic provision creating liability, and declares that any common carrier by rail which violates the Act "shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation. . . ." By § 9, the complainant is given the alternatives of seeking such damages by complaint to the Commission, under the procedures established by § 13(1), or of bringing suit in a federal district court. But the primary jurisdiction doctrine requires initial submission to the Commission of questions that raise
"issues of transportation policy which ought to be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme laid down by [the] Act."
United States v. Western Pac. R. Co.,352 U. S. 59, 352 U. S. 65; Texas & Pac. R. Co. v. American Tie & Timber Co.,234 U. S. 138. Accordingly, a shipper who commences his § 9 reparation proceeding in the District
Court will nevertheless be required to repair to the Commission for decision of issues, like the reasonableness of rates, which call the primary jurisdiction doctrine into play. When that occurs, the court ordering the reference of such issues to the Commission has exclusive jurisdiction of any civil action to enforce, enjoin, set aside, or annul a Commission order arising out of the referral, 28 U.S.C. § 1336(b) (1964 ed.), such action to be brought within 90 days of the entry of the Commission's final order, 28 U.S.C. § 1336(c) (1964 ed.).
Our concern here, however, is with the alternative procedure provided in § 9, which involves an initial complaint before the Commission and culminates in the § 16(2) suit to enforce the Commission's reparation award. Section 16(1) provides that, if the Commission determines the complainant is entitled to reparations, it "shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named." If the carrier fails to comply with the order by the designated time, the shipper then has the right under § 16(2) to file suit in either federal or state court to enforce the Commission's reparation award. Moreover, Congress has provided that in such a suit the shipper is to have certain procedural advantages designed to discourage "harassing resistance by a carrier to [the] reparation order." St. Louis & S.F. R. Co. v. Spiller,275 U. S. 156, 275 U. S. 159; see also Meeker & Co. v. Lehigh Valley R. Co.,236 U. S. 412, 236 U. S. 433; Baldwin v. Scott County Milling Co.,307 U. S. 478. The shipper has a broad choice of venue. If the suit is brought in a federal court, see Lewis-Simas-Jones Co. v. Southern Pac. Co.,283 U. S. 654, 283 U. S. 661, the shipper is free from liability for costs, except as they accrue on its appeal, and it may introduce at trial the findings and order of the Commission, which "shall be prima facie evidence of the facts therein stated. . . ." In addition, the shipper is to be allowed
a reasonable attorney's fee if it prevails, an advantage also accorded under § 8 to shippers who elect to proceed in court in the first instance. [Footnote 1]
The Interstate Commerce Act likewise contains general provision for judicial review of Commission orders. Section 17(9) provides that, after an application for
rehearing, reargument, or reconsideration has been denied or otherwise disposed of, a suit may be brought to enforce, enjoin, suspend, or set aside the Commission decision, order or requirement. [Footnote 2]
Jurisdiction of both § 16(2) and § 17(9) suits is vested in the federal district courts by 28 U.S.C. § 1336(a) (1964 ed.). Venue is determined by 28 U.S.C. § 1398(a) (1964 ed.), which, "[e]xcept as otherwise provided by law," limits suits to the judicial district where the party bringing the action has his residence or principal office. But because of the quoted exception, this venue restriction does not apply to suits commenced pursuant to § 16(2), as that section contains its own venue provision.
Procedures for review of Commission orders "other than for the payment of money," see 28 U.S.C. § 2321 (1964 ed.), are governed by 28 U.S.C. §§ 2321-2325 (1964 ed.). Such actions must be brought by or against
the United States, § 2322; the Commission and parties in interest appearing before the Commission may intervene as of right, § 2323; and no interlocutory or permanent injunction restraining enforcement of a Commission order may be granted unless the application is heard and determined by a three-judge district court, § 2325, [Footnote 3] with direct review here, 28 U.S.C. § 1253 (1964 ed.). In
United States v. Interstate Commerce Comm'n,337 U. S. 426, however, this Court held that Commission orders which determine in a reparation proceeding that assailed rates are unlawful but do not direct the carrier to cease and desist charging such rates, because the rates have been discontinued, "are not of sufficient public importance to justify the accelerated judicial review procedure," 337 U.S. at 337 U. S. 442. Thus, though the procedures set out in 28 U.S.C. §§ 2321-2325 (1964 ed.) otherwise govern § 17(9) proceedings to review such orders, § 2325 is not applicable and the matter may be adjudicated by a single judge. Because § 16(2) actions seek enforcement of an order "for the payment of money," the above-described procedures do not apply. Section 16(2) directs that actions thereunder "shall proceed in all respects like other civil suits for damages," with the exception of the special procedural advantages accorded the shipper to which we have previously referred.
From the foregoing summary, it will be observed that § 16(2) actions for enforcement of Commission reparation awards and § 17(9) actions to set aside Commission orders are quite distinct proceedings, with different venue restrictions and different procedures. Moreover, Congress conferred certain procedural advantages on shippers bringing § 16(2) actions that may well be lost
or impaired if carriers may attack the Commission's order in a direct review proceeding pursuant to § 17(9). Accordingly, we are asked to harmonize the language and purposes of the two provisions. [Footnote 4]
At the outset, however, it should be emphasized that we are here concerned with a narrow, though important, category of cases. First, it is conceded that if the Commission's reparation order is accompanied by a cease and desist order, as it usually will be when the proceeding originates before the Commission and the rates or practices under attack continue in use, the carrier may obtain immediate review of the cease and desist order pursuant to § 17(9); and such review will ordinarily determine the validity of the finding of statutory violation on which the reparation order is founded. A Commission cease and desist order respecting rates and charges, for example, which may be issued pursuant to the authority granted by § 15(1) to prescribe just and reasonable rates, subjects the carrier to $5,000 per day penalties for noncompliance, 49 U.S.C. § 16(8) (1964 ed.), and is typical of orders reviewed in suits to set aside Commission orders since the first such suit, Stickney v. Interstate Commerce Comm'n, 164 F. 638 (C.C.D.Minn.), aff'd,215 U. S. 98; see also Interstate Commerce Comm'n v. Delaware, L. & W. R. Co.,220 U. S. 235; United States v. Interstate Commerce Comm'n,337 U. S. 426, 337 U. S. 454 (Frankfurter, J., dissenting). Second, even when a cease and desist order is not joined with the reparation order, the latter order will be subject to direct review when no other means of securing review is available, regardless
of whether review is sought by a shipper, United States v. Interstate Commerce Comm'n,337 U. S. 426; Consolo v. Federal Maritime Comm'n, post, p. 383 U. S. 607, or the carrier, Pennsylvania R. Co. v. United States,363 U. S. 202. In the cited cases, the party seeking review could not obtain such review in a § 16(2) suit, either directly or through interposition of a defense.
Thus, in United States v. Interstate Commerce Comm'n, supra, the Government filed with the Commission a complaint seeking reparations, but the Commission found the assailed charges did not violate the Act, and dismissed the complaint. As there was no award upon which to base a § 16(2) suit, the United States would have been denied all review had jurisdiction of the § 17(9) action not been sustained. Similarly, in Consolo v. Federal Maritime Comm'n, post, p. 383 U. S. 607, we hold that a shipper may challenge in a direct review proceeding the adequacy of a reparation award, such a challenge being one that could not be pressed in an enforcement action, see Baltimore & Ohio R. Co. v. Brady,288 U. S. 448, 288 U. S. 457-458; D. L. Piazza Co. v. West Coast Line, 210 F.2d 947(C.A.2d Cir. 1954), cert. denied, 348 U.S. 839.
Pennsylvania R. Co. v. United States, supra, involved a suit by a carrier in the Court of Claims to collect the charges due under its tariff. The United States defended on the ground that the rates were unreasonable, and the Court of Claims referred that issue to the Commission pursuant to the primary jurisdiction doctrine, United States v. Western Pac. R. Co.,352 U. S. 59, 352 U. S. 62-70. The Commission found certain rates unjust and unreasonable, without ordering reparations or issuing a cease and desist order, and the carrier filed a § 17(9) suit in federal district court to set the order aside. On review of the Court of Claims' refusal to further suspend its proceedings pending the District Court action, this
Court held that the carrier was entitled to judicial review of the Commission order, that the Court of Claims had no jurisdiction to afford such review, and that the Court of Claims should therefore have suspended its proceedings. Because of the holding that the Court of Claims could not review the Commission order, failure to sustain the District Court's jurisdiction of the carrier's § 17(9) action would again have precluded judicial review.
The essential question in this case is the extent to which United States v. Interstate Commerce Comm'n and Pennsylvania R. Co. v. United States compel allowance of respondents' direct review action. The Commission asks us to limit those cases to their facts -- situations where judicial review would not have been available if the § 17(9) suit was not permitted. It argues that sufficient opportunity to obtain review of the Commission's finding that a statutory violation has occurred is afforded respondents by their right to challenge that determination in defense of Thomson's § 16(2) action to enforce the reparation award. If jurisdiction to review in a § 17(9) suit should be sustained, the Commission further contends, shippers will be deprived of many of the advantages bestowed by § 16(2). And the historical development of § 16(2) and the direct review proceeding is said to establish that Congress did not contemplate that the carrier could obtain direct review in a case like that at bar, and thereby short-circuit the shipper's suit. Finally, the Commission urges that, in reparation cases where the assailed rates are no longer in effect and no cease and desist order issues, the Commission's order has little continuing or general significance, but is comparable to an adjudication in a private damages action of interest only to the parties involved; therefore, it is appropriate for the order to be defended by the shipper, who is in effect compensated for such defense by the procedural
advantages accorded by § 16(2), rather than by the United States and the Commission.
Respondents argue that, to the contrary, past practice and the decisions of this Court establish that the exclusive method of reviewing Commission findings that a statutory violation has occurred [Footnote 5] is through a § 17(9) proceeding, and that such a finding may not be challenged, and is not open to review in a § 16(2) action. Respondents also argue that limiting review to the § 16(2) proceeding would result in disparate treatment of shippers, through conflicting decisions in enforcement suits, and would thus violate the Act's cardinal principle of uniformity of rates.
As will appear more fully below, we take a middle course. We conclude that carriers may obtain full review by defending the § 16(2) action, and that the policy underlying that section precludes the carriers from obtaining review in a forum other than that chosen by the shipper. But we find no obstacle to the carriers' bringing a § 17(9) cross-proceeding in the forum selected by the shipper, should they so desire.
A threshold question is raised by respondents' contention that the statutory violation issue is not open to review in a § 16(2) enforcement action, the Commission's finding being conclusive on the enforcement court unless set aside in a § 17(9) proceeding. If respondents are correct on this point, their § 17(9) action must be
To support their view of the scope of review in the enforcement action, respondents refer principally to Mitchell Coal & Coke Co. v. Pennsylvania R. Co.,230 U. S. 247. In that case, a shipper commenced its reparation suit under §§ 8 and 9 in a federal district court. This Court held that since the dispute raised "administrative" questions concerning the reasonableness of rates, the primary jurisdiction doctrine required the shipper to proceed first before the Commission. Regarding the weight to be accorded the Commission's resulting order, the Court said:
"Such orders, so far as they are administrative, are conclusive, whether they relate to past or present rates, and can be given general and uniform operation, since all shippers who have been or may be affected by the rate can take advantage of the ruling and avail themselves of the reparation order. They are quasi-judicial and only prima facie correct in so far as they determine the fact and amount of damage -- as to which, since it involves the payment of money and taking of property, the carrier is, by § 16 of the act, given its day in court and the right to a judicial hearing. . . ."
The prima facie evidence provision in § 16(2), however, draws no express distinction between administrative and quasi-judicial findings of the Commission, and we said of that provision in Meeker & Co. v. Lehigh Valley R. Co.,236 U. S. 412, 236 U. S. 430, that "[i]t cuts off no defense [and] interposes no obstacle to a full contestation of all the issues. . . ." See also United States v. Interstate
Commerce Comm'n,337 U. S. 426, 337 U. S. 435 (§ 16(2) proceedings afford "railroads complete judicial review of adverse reparation orders"). Moreover, in one of the earliest cases under the Hepburn Act, the Court reviewed the question of statutory violation in a § 16(2) case, concluded that the legal theory applied by the Commission was erroneous, and set aside the Commission's determination that the disputed rates were unreasonable. Southern R. Co. v. St. Louis Hay & Grain Co.,214 U. S. 297. See also Arizona Grocery Co. v. Atchison, T. & S.F. R. Co.,284 U. S. 370. The seemingly contradictory statements in the contemporaneous Mitchell Coal and Meeker decisions require explanation, which we believe can be found in the general course of decisions in that era respecting the scope of review of Commission orders.
From our brief resume of the Court's opinion in Mitchell Coal, it should be immediately apparent that the case did not, strictly speaking, require the determination of the scope of judicial review in § 16(2) enforcement actions. The proceeding under review had been commenced in court pursuant to § 9, rather than § 16, and no Commission order had yet been entered. The question directly in issue concerned the applicability of the primary jurisdiction doctrine to cases involving discontinued, rather than present, rates.
Initially formulated in cases arising under the Interstate Commerce Act, the primary jurisdiction doctrine was premised in the early cases on the policy of the Act of assuring uniform rates. The Court reasoned that many questions arising under the Act, such as whether rates were unreasonable or discriminatory, were essentially questions of fact particularly appropriate for determination by an expert Commission. If shippers could challenge the filed rates by proceedings before a court, without prior resort to the Commission, different conclusions might be reached by different courts; and the prevailing
shippers would thereby obtain a rate preference as compared to unsuccessful shippers, which would violate the principle of uniform rates. See, e.g., Texas & Pac. R. Co. v. Abilene Cotton Oil Co.,204 U. S. 426, 204 U. S. 440-441; Baltimore & Ohio R. Co. v. United States ex rel. Pitcairn Coal Co.,215 U. S. 481, 215 U. S. 493-495; Mitchell Coal & Coke Co. v. Pennsylvania R. Co.,230 U. S. 247, 230 U. S. 255-260. Of course, a preliminary determination by the Commission would have little effect in achieving uniformity if its determination were subject to de novo review, and it was for that reason that the Court pointed out in Mitchell Coal the "conclusive" effect that would be accorded "administrative" findings of the Commission in any ensuing § 16 action.
But other decisions rendered by the Court during the same period indicate that it was not only in § 16 proceedings that the Commission findings would be conclusive, in the sense the Court was actually using that term. Under the original Act, failure to comply with any order of the Commission did not, in itself, entail any penalty. Commission orders were judicially enforceable at the instance of the Commission or any party in interest, and the Act provided that in an enforcement action "the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated." Interstate Commerce Act, § 16, 24 Stat. 384 (1887), as amended, 25 Stat. 860 (1889). Though retaining the prima facie evidence provision for actions on reparation awards, the Hepburn Act of 1906 included no provision respecting the weight to be given Commission findings in nonreparation cases. Section 15 of the amended Act, however, made Commission orders, except orders for the payment of money, self-enforcing for purposes of incurring liability for penalties for noncompliance, unless such orders had been suspended or set aside by a court of competent jurisdiction. In Interstate Commerce
Comm'n v. Illinois Central R. Co.,215 U. S. 452, a suit to set aside a cease and desist order, the changes effected by the Hepburn Act in making Commission orders self-enforcing were interpreted as reducing the scope of judicial review from that prevailing when Commission orders were only prima facie evidence. The Court stated it could consider whether the Commission action exceeded constitutional power or right, whether the administrative order was within the scope of authority delegated, and whether the exercise of authority was reasonable, but it could not
"usurp merely administrative functions by setting aside a lawful administrative order upon our conception as to whether the administrative power has been wisely exercised. Power to make the order, and not the mere expediency or wisdom of having made it, is the question."
215 U.S. at 215 U. S. 470. Through frequent repetition, see Interstate Commerce Comm v. Union Pac. R. Co.,222 U. S. 541, 222 U. S. 547-548; Procter & Gamble Co. v. United States,225 U. S. 282, 225 U. S. 297-298, the principles elaborated in Illinois Central gradually became restated as a doctrine
"that the findings of the Commission were made not merely prima facie, but conclusively correct in case of judicial review, except to the extent pointed out in the Illinois Central and other cases . . . ,"
United States v. Louisville & Nashville R. Co.,235 U. S. 314, 235 U. S. 320. Accord, Central R. Co. of New Jersey v. United States,257 U. S. 247, 257 U. S. 256-257; United States v. Illinois Central R. Co.,263 U. S. 515, 263 U. S. 525-526 and n. 7. See generally Rochester Tel. Corp. v. United States,307 U. S. 125, 307 U. S. 139-140. By a parallel development, the Court placed increasing reliance in primary jurisdiction cases on the "conclusive" effect of Commission orders as a factor demonstrating that the requirement of preliminary resort to the Commission on administrative questions would indeed further the statutory policy of uniform treatment. Compare 215 U. S. Co. v. United States ex rel. Pitcairn Cocal Co.,
When Mitchell Coal and Meeker are read together against the background of the Illinois Central and Louisville & Nashville cases, it becomes clear that Commission orders are fully reviewable in § 16(2) suits, but Commission findings on questions required under the primary jurisdiction doctrine to be determined first by the Commission are conclusive in the same sense that such findings would be conclusive in suits to set aside the Commission's order. That is, findings on primary jurisdiction issues are to be reviewed by the Court on the administrative record under the familiar standards elaborated in direct review proceedings, while findings on other questions are subject to review under the prima facie evidence provision of § 16(2), with the statutory rights of introducing evidence not before the Commission and obtaining a jury determination of disputed issues of fact. [Footnote 6] Such an interpretation of § 16(2)'s prima facie evidence provision is required if that provision is to be consonant with the primary jurisdiction doctrine. That interpretation seems to have been applied by the Court in Pennsylvania R. Co. v. Weber,257 U. S. 85, 257 U. S. 90-91; Louisville & Nashville R. Co. v. Sloss-Sheffield Steel & Iron
Co.,269 U. S. 217; News Syndicate Co. v. New York Central R. Co.,275 U. S. 179; Adams v. Mills,286 U. S. 397, 286 U. S. 409-410. [Footnote 7] It is urged in the present case by the Commission, and in a companion case by the Federal Maritime Commission, was accepted by the court below, 334 F.2d at 49, n. 12, and has been applied by several other lower federal courts, New Process Gear Corp. v. New York Central R. Co., 250 F.2d 569, 571-572 (C.A.2d Cir. 1957), cert. denied, 356 U.S. 959; Midland Valley R. Co. v. Excelsior Coal Co., 86 F.2d 177, 181-182 (C.A.8th Cir. 1936); Baltimore & O. R. Co. v. Brady, 61 F.2d 242, 246, 248 (C.A.4th Cir. 1932), rev'd on other grounds,288 U. S. 448; City of Danville v. Chesapeake & O. R. Co., 34 F.Supp. 620, 625, 627-628 (D.C.W.D.Va.1940); Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 237 F. 272, 275 (D.C.E.D.Pa.1916). We adhere to that interpretation now.
Having established that the carrier has ample opportunity to secure review in the enforcement action, we must now consider whether affording the carrier the alternative of bringing direct review proceedings pursuant to § 17(9) would vitiate the congressional policy expressed in § 16(2) of encouraging prompt payment of reparation awards. To effectuate that policy, Congress has provided for the shipper certain procedural and substantive benefits pertaining to venue, freedom from costs, prima facie effect of the Commission's order, and allowance of a reasonable attorney's fee. The Commission
contends that permitting the carrier to bring direct review proceedings will materially impair the benefits derived by the shipper from the procedural dispensations of § 16(2). We conclude that, although the degree of impairment would be less than that claimed by the Commission, it would nevertheless be substantial.
The Commission argument respecting venue, which we accept, proceeds as follows: because the carrier may bring its § 17(9) action as soon as the final Commission order is entered, but the shipper's § 16(2) suit must await passage of the date set for compliance, the carrier may file its suit first, and thus obtain priority. Although the carrier's suit must be brought against the United States, 28 U.S.C. § 2322 (1964 ed.), the Commission and the shipper may intervene as of right, 28 U.S.C. § 2323 (1964 ed.), and the shipper will be under compulsion to do so to protect its interest, since a decision setting aside the Commission's order would destroy the foundation of the enforcement action. In this way, the shipper will frequently be denied his choice of forum on the statutory violation issue, as the § 17(9) suit must be brought in the judicial district of the residence or principal office of the party bringing the suit, 28 U.S.C. § 1398(a), which may be far removed from the district in which the shipper resides or through which the road of the carrier runs -- alternatives that are open to the shipper under § 16(2), and, being likely to offer a more convenient venue to the shipper, would frequently be the shipper's choice.
By a similar analysis, the Commission also contends that a shipper forced to intervene in the carrier's § 17(9) action would lose the advantages of freedom from costs and the right to a reasonable attorney's fee, since those rights are conferred only in the § 16(2) action, and not in § 17(9) actions. But since both the § 16(2) action and the § 17(9) action may be heard and determined by
a single district judge when the reparation order is not accompanied by a cease and desist order, United States v. Interstate Commerce Comm'n,337 U. S. 426, 337 U. S. 440-443; Pennsylvania R. Co. v. United States,363 U. S. 202, it would be possible, apart from venue problems, [Footnote 8] for the shipper to press its action in the same district as the carrier's action, either by an independent action to be consolidated with the carrier's action, Fed.Rule Civ.Proc. 42(a), or by a counterclaim after intervention in the carrier's action, see Switzer Bros., Inc. v. Locklin, 207 F.2d 483 (C.A.7th Cir. 1953); 3 Moore, Federal Practice