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
Page 383 U. S. 577
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
Page 383 U. S. 578
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
Page 383 U. S. 579
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.
I
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
Page 383 U. S. 580
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
Page 383 U. S. 581
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]
Page 383 U. S. 582
The Interstate Commerce Act likewise contains general provision
for judicial review of Commission orders. Section 17(9) provides
that, after an application for
Page 383 U. S. 583
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
Page 383 U. S. 584
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
Page 383 U. S. 585
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.
II
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
Page 383 U. S. 586
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
Page 383 U. S. 587
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
Page 383 U. S. 588
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
Page 383 U. S. 589
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.
III
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
Page 383 U. S. 590
allowed under even the Commission's interpretation of
United
States v. Interstate Commerce Comm'n, 337 U.
S. 426, and
Pennsylvania R. Co. v. United
States, 363 U. S. 202.
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. . . ."
230 U.S. at
230 U. S. 258.
Accord, Morrisdale Coal Co. v. Pennsylvania R. Co.,
230 U. S. 304.
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
Page 383 U. S. 591
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
Page 383 U. S. 592
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
Page 383 U. S. 593
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.,
Page 383 U. S. 594
215 U. S. 481,
215 U. S. 494,
with Mitchell Coal & Coke Co. v. Pennsylvania R. Co.,
230 U. S. 247,
230 U. S. 258,
quoted,
supra, p.
383 U. S. 590.
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
Page 383 U. S. 595
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.
IV
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
Page 383 U. S. 596
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
Page 383 U. S. 597
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 � 13.05 (2d
ed. 1964), 4 Moore, Federal Practice � 24.17(2d ed. 1963). Then, to
the extent that the shipper's costs and attorney's fees were
attributable
Page 383 U. S. 598
to its § 16(2) counterclaim or action, the § 16(2) advantages
would clearly be applicable. And it would be arguable -- an issue
we do not decide -- that the shipper would be entitled to the
benefit of § 16(2) as to all its costs and attorney's fees in the
combined action.
Since the Commission believes that the scope of review of
findings on primary jurisdiction issues would be the same
regardless of whether review was sought in a § 16(2) or a § 17(9)
action, it makes no claim that allowance of the direct review
proceeding would undercut the
prima facie evidence
provision of § 16(2).
In summary, the principal, if not sole, effect of permitting
respondents' direct review proceeding would be to force on shippers
the alternatives of either forgoing the opportunity to defend the
Commission order or accepting the carrier's choice of a distant
venue. The first alternative is obviously counter to the policy
expressed in § 16(2), and, as we have said, it is to be expected
that shippers would elect to defend the Commission's order even at
the expense of loss of their venue advantage. The importance of
choice of venue in these actions should not be discounted. Since
the record in the enforcement action is not limited to that made
before the Commission, the shipper may desire to call witnesses or
to introduce documentary evidence either in direct support of the
Commission's order or in rebuttal to opposing evidence produced by
the carrier, thus bringing into play those factors relating to the
convenience of witnesses and the relative burden of making proof
that make the choice of venue so important in other contexts.
See Mercantile National Bank at Dallas v. Langdeau,
371 U. S. 555;
Schnell v. Peter Eckrich & Sons, Inc., 365 U.
S. 260.
V
But respondents contend that confining review to the enforcement
action would introduce into the administration
Page 383 U. S. 599
of the Act problems of greater severity and importance than any
effect such a course might have in safeguarding the shipper's §
16(2) privileges. Respondents note that, under the doctrine of
Phillips Co. v. Grand Trunk Western R. Co., 236 U.
S. 662, shippers who are not complainants before the
Commission may nevertheless obtain the advantage of the
Commission's reparation order as a basis for their own § 16(2)
action. It is argued that the enforcement court has no power to set
aside the Commission order, and, therefore, a decision upholding a
carrier's attack on the Commission's order in one enforcement
proceeding would not preclude another shipper from successfully
invoking that order in a separate enforcement proceeding, thus
resulting in disparate treatment of shippers contrary to the Act's
objective of securing uniform rates.
It is, of course, true that the court may not formally set aside
the Commission's order in an action in which neither the Commission
nor the United States is a party.
Cf. United States v.
Jones, 336 U. S. 641,
336 U. S.
651-653,
336 U. S.
670-671;
Pennsylvania R. Co. v. United States,
363 U. S. 202,
363 U. S. 205.
But we do not read
Phillips Co. v. Grand Trunk Western R. Co.,
supra, to permit reliance by a nonparticipating shipper on the
Commission's order when it has been disapproved in litigation
between the complainant shipper and the railroad. In the
Phillips case, the Commission had separately determined
that challenged rates were unlawful and had issued a cease and
desist order, which was sustained in an enforcement proceeding
brought by the Commission.
Illinois Central R. Co. v.
Interstate Commerce Comm'n, 206 U. S. 441.
Thereafter, some reparation claims were settled, and Phillips,
which had not been a complainant before the Commission, commenced
its reparation action. The Court reasoned that, if Phillips could
not rely on the Commission order, shippers prevailing before the
Commission
Page 383 U. S. 600
would obtain a preference as compared to nonparticipating
shippers. Therefore, the Court ruled that if:
"there was a finding of unreasonableness in the proceedings
begun by others, [the nonparticipating shipper] could, if in time,
present his claim and await the result of the litigation over the
validity of any order made at the instance of those parties. If it
was ultimately sustained by the court as valid, he would then be in
position to obtain reparation from the Commission -- or a judgment
from a court of competent jurisdiction, on a claim that had been
seasonably presented."
236 U.S. at
236 U. S. 666.
The
Phillips case thus contemplates that the suit of a
nonparticipating shipper is to await the outcome of litigation over
the validity of the Commission order and that the nonparticipating
shipper may rely on the Commission's order only when the policy of
uniformity will thereby be served.
It might still be argued that disparity in treatment of shippers
would result in cases involving multiple complainants before the
Commission. The several shippers could commence separate
enforcement actions in different courts, and those courts might
disagree concerning the validity of the Commission's order. But
such conflicts could be completely avoided only by limiting review
on the question of statutory violation to a single suit by a
carrier to set aside the Commission's order, and the long and
unvarying course of decisions permitting review in the enforcement
court precludes our limiting review to § 17(9) proceedings.
Southern R. Co. v. St. Louis Hay & Grain Co.,
214 U. S. 297;
Arizona Grocery Co. v. Atchison, T. & S.F. R. Co.,
284 U. S. 370;
Adams v. Mills, 286 U. S. 397;
W. P. Brown & Sons Lumber Co. v. Louisville & N. R.
Co., 299 U. S. 393;
H. K. Porter Co. v. Central
Vermont Railway, Inc.,
Page 383 U. S. 601
366 U. S. 272,
366 U. S. 274
n. 6 (dictum). In any event, we do not believe that, in practice,
such conflicts will frequently occur. If the first enforcement
court to issue its decision sustains the Commission order, that
decision will generally be accepted as persuasive authority by
other courts. Such conflicts as do occur will be similar to those
that may arise when, in a suit commenced in court under § 9, the
primary jurisdiction doctrine is not applicable, and the court is
free to decide questions under the Act as an original matter; and
such conflicts may ultimately be resolved here. If the first court
to reach a decision strikes down the Commission order, it may do so
on grounds permitting reconsideration of the matter by the
Commission. When the primary jurisdiction doctrine requires initial
decision by the Commission, it also precludes the court from
redetermining the question itself should the Commission decision be
defective. The proper course is to remand to the Commission,
Southern R. Co. v. St. Louis Hay & Grain Co.,
214 U. S. 297,
214 U. S. 302;
Louisville & Nashville R. Co. v. Behlmer, 175 U.
S. 648;
compare United States v. Jones,
336 U. S. 641,
336 U. S.
651-653,
336 U. S.
670-671,
with United States v. Carlo Bianchi &
Co., 373 U. S. 709,
373 U. S. 718,
which has continuing power to suspend or to modify its orders,
Interstate Commerce Act § 16(6), 49 U.S.C. § 16(6) (1964 ed.). The
carrier will naturally request the Commission to reopen the prior
order as to all shippers.
See Baldwin v. Scott County Milling
Co., 307 U. S. 478;
but cf. Gulf, M. & N.R. Co. v. Merchants' Specialty
Co., 50 F.2d 21 (C.A.5th Cir. 1931). In some cases, however, a
decision refusing to enforce the Commission's order will finally
determine its validity as between the parties to that action
without any necessity for a remand to the Commission. Here too, the
first adjudication will generally be persuasive, and, if not,
conflicting decisions may be reviewed in this Court. Finally, under
the interpretation of §§ 16(2) and 17(9) that we elaborate
below,
Page 383 U. S. 602
the carrier may bring a direct review proceeding as a
cross-action in the forum selected by a shipper, thus ensuring that
the court will have power to affect the order itself and thereby
maintain uniformity as between shippers.
VI
Recent decisions of this Court have recognized that Commission
orders determining a "right or obligation" so that "legal
consequences" will flow therefrom are judicially reviewable.
Pennsylvania R. Co. v. United States, 363 U.
S. 202,
363 U. S. 205;
Rochester Telephone Corp. v. United States, 307 U.
S. 125,
307 U. S.
131-132,
307 U. S. 143.
Such review
"is equally available whether a Commission order relates to past
or future rates, or whether its proceeding follows referral by a
court or originates with the Commission."
Pennsylvania R. Co. v. United States, supra, at
363 U. S. 205.
Under these established principles. the order attacked in this case
is unquestionably subject to review, and in
Pennsylvania R. Co.
v. United States, supra, and
United States v. Interstate
Commerce Comm'n, 337 U. S. 426,
similar orders were held reviewable in direct proceedings.
The question before us now, however, is not whether review is to
be afforded, but where that review is to occur. In the three
preceding sections of this opinion, we have established three
conclusions that must serve as guideposts for our decision of that
question. First, respondents have ample opportunity to secure
review of the Commission's order through defense of the shipper's
enforcement action. By contrast, the
Pennsylvania R. Co.
and
Interstate Commerce Comm'n cases dealt with situations
where the order in dispute could only be reviewed in § 17(9)
proceedings, and those cases thus do not control decision here.
Second, allowing respondents the alternative of bringing direct
review proceedings would substantially impair the shipper's § 16(2)
right to select a convenient venue. Third, contrary to
respondents'
Page 383 U. S. 603
contention, limiting review to the enforcement action would not
be likely to result in disparity in treatment of shippers. If,
therefore, review can be limited to the enforcement forum selected
by the shipper consistent with the language and history of the
provisions establishing the direct review proceeding, we should
adopt that course.
During the first 19 years of the Commission's existence, its
orders were not reviewable through direct proceedings. Until 1906,
noncompliance with a Commission order did not expose a carrier to
immediate sanctions; an order was enforceable only after judicial
proceedings in which the carrier could challenge its validity. The
Hepburn Act imposed penalties of $5,000 a day for violation of
Commission orders, and
"[t]he statutory jurisdiction to enjoin and set aside an order
was granted in 1906, because then, for the first time, the
ratemaking power was conferred upon the Commission, and then
disobedience of its orders was first made punishable,"
United States v. Los Angeles & S.L. R. Co.,
273 U. S. 299,
273 U. S. 309;
see also 40 Cong.Rec. 5133 (remarks of Senator Foraker).
Thus, the genesis of the direct review proceeding was the desire to
afford an injunctive remedy for persons faced with the threat of
irreparable injury through exposure to liability for mounting
penalties without any other opportunity for judicial review until
the Commission or some interested party should choose to commence
enforcement proceedings.
Compare Ex parte Young,
209 U. S. 123,
209 U. S.
147-148. The essentially equitable nature of the direct
review proceeding was remarked in early cases denying review of
"negative orders" that did not command any action by the carrier,
and therefore did not threaten the carrier with any sanctions.
Compare United States v. Los Angeles R. Co., 273 U.
S. 299,
with Rochester Tel. Corp. v. United
States, 307 U. S. 125.
Similarly, as the
per diem penalties do not apply to
noncompliance
Page 383 U. S. 604
with orders for the payment of money, two of the three courts to
have considered the issue presented in the case at bar denied
carriers direct review on the ground that no equitable cause of
action had been stated.
Pittsburgh & W.V. R. Co. v. United
States, 6 F.2d 646,
648-649 (D.C.W.D.Pa.1924);
Baltimore & O.R. Co. v. United
States, 12 F. Supp. 261, 263 (D.C.D.Del.1935),
appeal
dismissed, 87 F.2d 605 (C.A.3d Cir. 1937);
contra,
Southern R. Co. v. United States, 193 F. 664 (Commerce Ct.
1911). And decisions sustaining direct review of reparation orders
have stressed the absence of alternative means for obtaining review
-- in equity terms, inadequacy of remedies at law.
See
supra at pp.
383 U. S.
587-588.
As the principles stated at the beginning of this section
demonstrate, the test of reviewability is no longer pregnant with
the concept of irreparable injury to the same extent as when the
negative order doctrine held sway, and we do not mean to resurrect
the strict equity approach. This history nevertheless establishes
that the main concern of Congress in creating the direct review
proceeding was with orders that were "self-enforcing" in the sense
of exposing recalcitrant carriers to substantial monetary
penalties. The legislative history permits absolutely no inference
that Congress intended to undercut the shipper's remedies in the
enforcement action. To the contrary, the Hepburn Act simplified
those enforcement procedures so as to provide additional assistance
to shippers. H.R.Rep.No.591, 59th Cong., 1st Sess., p. 5; 40
Cong.Rec. 2256 (remarks of Congressman Hepburn). Moreover, the
equitable nature of the direct review proceedings certainly affords
ample basis for requiring the direct review court to defer its
proceedings pending the outcome of the enforcement action, a course
that is consistent with the legislative history of the direct
Page 383 U. S. 605
review proceeding and that will maximize the remedial purposes
of § 16(2).
Lest there be any misunderstanding, we emphasize that our
reasons for finding the direct review proceeding unavailable in a
case such as this where the carriers began that proceeding in a
forum other than that selected by the shipper for its enforcement
action are inapplicable when the direct review proceeding is
brought as a cross-action in the enforcement court. [
Footnote 9] Obviously, allowance of the
cross-action will not impair the shipper's venue right. And we
think that the § 16(2) provisions respecting court costs and
attorney's fees unquestionably would be applicable to the whole of
the combined action in such a case. The Commission argues,
nevertheless, that reparation orders respecting past rates are not
of sufficient general importance to require their defense by the
United States and the Commission, and that the direct review
proceeding should not be permitted regardless of the court in which
it is brought. That apparently is not the view of Congress,
however, for, when it provided in 1964 that review of Commission
orders entered on reference of primary jurisdiction issues should
be had only in the court making the reference, 28 U.S.C. §§ 1336(b)
and 1398(b) (1964 ed.), it did so by placing jurisdiction and venue
of the direct review proceeding in
Page 383 U. S. 606
that court,
see generally S.Rep.No.1394, 88th Cong., 2d
Sess. (1964), in 1964-2 U.S.Code Cong. and Admin.News, p. 3235,
rather than by providing for review as an incident of the original
action.
See also Brief for the United States in
Pennsylvania R. Co. v. United States (No. 451 O.T.1959),
7-9, 21-22. As we indicated in the preceding section, in some
cases, there will be some advantage for purposes of assuring the
uniform application of the Act in the courts having jurisdiction to
directly affect the Commission's order, and we see no justifiable
reason for preventing the carrier from bringing the United States
into the enforcement court, should it so desire.
The proceeding before us, however, was not brought in the
enforcement court. Indeed, proceedings in the latter court have
been deferred pending the outcome of this case. For the reasons
stated herein, the District Court erred in entertaining
respondents' action, and the judgment of the Court of Appeals
sustaining the District Court must be
Reversed.
MR. JUSTICE DOUGLAS concurs in the result.
MR. JUSTICE BLACK took no part in the consideration or decision
of this case.
[
Footnote 1]
The relevant text of the provisions discussed in text above
reads as follows:
"§ 8. Liability in damages to persons injured by violation of
law."
"In case any common carrier subject to the provisions of this
chapter shall do, cause to be done, or permit to be done any act,
matter, or thing in this chapter prohibited or declared to be
unlawful, or shall omit to do any act, matter, or thing in this
chapter required to be done, such common carrier shall be liable to
the person or persons injured thereby for the full amount of
damages sustained in consequence of any such violation of the
provisions of this chapter, together with a reasonable counsel or
attorney's fee, to be fixed by the court in every case of recovery,
which attorney's fee shall be taxed and collected as part of the
costs in the case."
"§ 9. Remedies of persons damaged; election; witnesses."
"Any person or persons claiming to be damaged by any common
carrier subject to the provisions of this chapter may either make
complaint to the Commission as hereinafter provided for, or may
bring suit in his or their own behalf for the recovery of the
damages for which such common carrier may be liable under the
provisions of this chapter in any district court of the United
States of competent jurisdiction; but such person or persons shall
not have the right to pursue both of said remedies, and must in
each case elect which one of the two methods of procedure herein
provided for he or they will adopt. . . ."
"
* * * *"
"§ 13. Complaints to and investigations by Commission."
"(1) Complaint to Commission of violation of law by carrier;
reparation; investigation."
"Any person, firm, corporation, company, or association, or any
mercantile, agricultural, or manufacturing society or other
organization, or any body politic or municipal organization, or any
common carrier complaining of anything done or omitted to be done
by any common carrier subject to the provisions of this chapter in
contravention of the provisions thereof, may apply to said
Commission by petition, which shall briefly state the facts;
whereupon a statement of the complaint thus made shall be forwarded
by the Commission to such common carrier, who shall be called upon
to satisfy the complaint, or to answer the same in writing, within
a reasonable time, to be specified by the Commission. If such
common carrier within the time specified shall make reparation for
the injury alleged to have been done, the common carrier shall be
relieved of liability to the complainant only for the particular
violation of law thus complained of. If such carrier or carriers
shall not satisfy the complaint within the time specified, or there
shall appear to be any reasonable ground for investigating said
complaint, it shall be the duty of the Commission to investigate
the matters complained of in such manner and by such means as it
shall deem proper."
"
* * * *"
"§ 16. Orders of commission and enforcement thereof."
"(1) Award of damages."
"If, after hearing on a complaint made as provided in section 13
of this title, the commission shall determine that any party
complainant is entitled to an award of damages under the provisions
of this chapter for a violation thereof, the commission 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."
"(2) Proceedings in courts to enforce orders; costs; attorney's
fee."
"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 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 proceed
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 state 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."
Interstate Commerce Act §§ 8, 9, 13(1) and 16(1) and (2), 49
U.S.C. §§ 8, 9, 13(1) and 16(1) and (2) (1964 ed.).
[
Footnote 2]
"§ 17(9) Judicial relief from decisions, etc., upon denial or
other disposition of application for rehearing, etc."
"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
appellate division, a suit to enforce, enjoin, suspend, or 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 side orders of the Commission, but not
otherwise."
Interstate Commerce Act § 17(9), 49 U.S.C. § 17(9) (1964 ed.).
This provision was not added until 1940, Transportation Act of
1940, 54 Stat. 916, and is basically a provision requiring
exhaustion of administrative remedies prior to resort to the
courts. The first provision for direct judicial review of
Commission orders appeared in § 5 of the Hepburn Act of 1906, 34
Stat. 590, 592, which was phrased in terms of venue only. For ease
of reference, we will refer to direct review proceedings as § 17(9)
proceedings.
[
Footnote 3]
The above-described provisions of the Judicial Code read in
pertinent part:
"§ 1336. Interstate Commerce Commission's orders."
"(a) 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 any
part, any order of the Interstate Commerce Commission."
"
* * * *"
"§ 1398. Interstate Commerce Commission's orders."
"(a) Except as otherwise provided by law, any civil action 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."
"
* * * *"
"§ 2321. Procedure generally; process."
"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 Commission other than for the payment of
money or the collection of fines, penalties and forfeitures, shall
be as provided in this chapter. . . ."
"§ 2322. United States as party."
"All actions specified in section 2321 of this title shall be
brought by or against the United States."
"§ 2323. Duties of Attorney General; intervenors."
"The Attorney General shall represent the Government in the
actions specified in section 2321 of this title . . . in the
district courts, and in the Supreme Court of the United States upon
appeal from the district courts."
"The Interstate Commerce Commission and any party or parties in
interest to the proceeding before the Commission, in which an order
or requirement is made, may appear as parties of their own motion
and as of right, and be represented by their counsel, in any action
involving the validity of such order or requirement or any part
thereof, and the interest of such party. . . ."
"
* * * *"
"§ 2325. Injunctions; three-judge court required."
"An interlocutory or permanent injunction restraining the
enforcement, operation or execution, in whole or in part, of any
order of the Interstate Commerce Commission shall not be granted
unless the application therefor is heard and determined by a
district court of three judges under section 2284 of this
title."
28 U.S.C. §§ 1336(a), 1398(a), 2321-2323, 2325 (1964 ed.).
[
Footnote 4]
As is readily apparent from this opinion, the statutory
provisions governing this case and the companion case,
Consolo,
post, p.
383 U. S. 607, are
an historical patchwork subject to more than one interpretation.
The entire matter is surely ripe for congressional consideration,
for it is of continuing significance and the competing
considerations of yesterday may not be those of overriding
importance today.
[
Footnote 5]
Frequent Commission practice, Illustrated by the procedure
adopted in the present case, is to separate from the issue of
shipper's damages issues respecting the existence of a statutory
violation and the availability of statutory defenses such as the
statute of limitations defense asserted by respondents and to try
the latter issues first. The core of the dispute here concerns the
forum for review of Commission findings on such issues of violation
and limitations.
[
Footnote 6]
Section 16(2), of course, does not limit the carrier to
introducing opposing evidence to rebut the
prima facie
effect of the Commission's order. It may also challenge the
admissibility of the order on the grounds, for example, that the
Commission did not afford the carrier a fair hearing or that the
order was not based upon substantial evidence,
Spiller v.
Atchison, T. & S.F. R. Co., 253 U.
S. 117,
253 U. S. 126.
But if a Commission order containing findings on all matters
essential to the shipper's recovery is admitted and the carrier
produces no opposing evidence, the findings and order of the
Commission may not be rejected by the jury, and the shipper is
entitled to judgment.
Meeker v. Lehigh Valley R. Co.,
236 U. S. 434,
236 U. S. 439;
see Pennsylvania R. Co. v. W. F. Jacoby & Co.,
242 U. S. 89,
242 U. S. 94
(dictum).
[
Footnote 7]
In
Louisville & Nashville R. Co. v. Sloss-Sheffield
Steel & Iron Co., 269 U. S. 217, the
Court considered a carrier's statute of limitations defense on
review of a judgment for the shipper in a § 16(2) enforcement
action.
Accord, Meeker & Co. v. Lehigh Valley R. Co.,
236 U. S. 412.
Thus, it would seem beyond question that respondents here could
have presented in Thomson's New York action the defense on which
they prevailed in the courts below.
[
Footnote 8]
Venue of suits to set aside the Commission's order is limited by
28 U.S.C. § 1398 (1964 ed.) to the district in which the party
bringing the action has its residence or principal office. Section
16(2) provides for venue in the district where the shipper resides
"or in which is located the principal operating office of the
carrier, or through which the road of the carrier runs. . . ." As §
16(2) does not expressly provide for venue in the district in which
the carrier resides, and that district may not coincide with one of
the districts that are listed, it would appear that, in some cases
in which the carrier elects to file its § 17(9) action in the
district of its residence, rather than the district of its
principal office, the district chosen by the carrier will not be
one where the shipper could originally have brought suit. It was
primarily similar venue problems that prompted enactment in 1964 of
28 U.S.C. § 1336(b), which provides that exclusive jurisdiction of
a § 17(9) action to set aside a Commission order arising out of a
primary jurisdiction reference to the Commission shall be vested in
the referring court. 1964-2 U.S.Code Cong. and Admin.News pp.
3235-3239. When the § 17(9) action is filed first, however, venue
difficulties are less likely to occur as the § 16(2) venue
provisions are, in general, broader than those applicable to §
17(9) actions. In any event, venue objections may perhaps be
overcome by transfer of the § 17(9) action, 28 U.S.C. § 1404 (1964
ed.), or by application of the doctrine of waiver,
see 3
Moore, Federal Practice � 13.16 at p. 45 (2d ed. 1964) (venue of
counterclaims by interveners).
[
Footnote 9]
"Except as otherwise provided by law," 28 U.S.C. § 1398(a) (1964
ed.), quoted,
supra, n
3, limits venue of direct review proceedings to the judicial
district of the residence or principal place of business of the
party bringing the action. Since we interpret § 16(2) as precluding
a carrier from bringing an enforcement action in any court but the
enforcement court, that section provides venue for the carrier's
cross-action under the "[e]xcept as otherwise provided by law"
provision of § 1398(a). In the rare cases when the enforcement
action is brought in state, rather than federal, court, it will, of
course, not be possible for the carrier to bring a § 17(9)
cross-action.