When petitioner railroads proposed a seasonal increase in the
shipping rates for grain and soybeans, a number of shippers filed
protests with the Interstate Commerce Commission (ICC) requesting
that it exercise its authority under § 15 (8)(a) of the Interstate
Commerce Act (Act) to suspend such rates and to investigate the
charges of their illegality. But the ICC issued an order declining
such request, although it admonished the railroads to correct any
such violations as might exist and directed that records be kept to
protect the shippers' right to recover damages in such subsequent
proceedings as they might bring pursuant to § 13(1) of the Act. The
Court of Appeals held that the ICC had begun an investigation but
had then erroneously terminated it without adequately investigating
the charges of illegality and without supporting its decision with
appropriate findings. The court concluded that a decision by the
ICC to refuse to make or to terminate an investigation of the
lawfulness of a proposed tariff is subject to judicial review, even
though suspension orders are not, primarily because a single §
15(8)(a) proceeding initiated by the ICC is a better means of
determining the lawfulness of rates than numerous § 13(1) complaint
proceedings initiated by shippers.
Held:
1. To the extent that the Court of Appeals interpreted the ICC's
order as a final decision that the proposed tariff was lawful,
rather than simply a discretionary decision not now to investigate
its lawfulness, it misconstrued the order. The order's express
language belies any such interpretation, and the ICC did not reject
the shippers' claim of illegality on the merits, but, on the
contrary admonished the railroads about possible violations.
Moreover, since the ICC expressly indicated that charges of
violation of the Act could be resolved in § 13(1) proceedings, it
is plainly incorrect to interpret its action as a prejudgment on
the issue. Pp.
442 U. S.
452-454.
Page 442 U. S. 445
2. The ICC's "no investigation" decision is not subject to
judicial review. Pp.
442 U. S.
454-463.
(a) This conclusion is supported by § 15(8)(a)'s language of
permission and discretion (the ICC "may, upon the complaint of an
interested party . . . , order a hearing concerning the lawfulness
of [a] rate"), and by the fact that the statute is silent on what
factors should guide the ICC's decision. Pp.
442 U. S.
455-456.
(b) The structure of the Act also indicates that Congress
intended to prohibit judicial review of the ICC's "no
investigation" decision. Congress did not use permissive language
such as that found in § 15(8)(a) when it wished to create
reviewable duties under the Act, but instead used mandatory
language such as in § 13(1). To treat § 15(8)(a) as if it were
written in § 13(1)'s mandatory language would allow shippers to use
the open-ended and ill-defined procedures in § 15(8)(a) to render
obsolete the carefully designed and detailed procedures in § 13(1).
Moreover, in view of the linkage between the ICC's power to
investigate and its power to suspend proposed rates, the decisions
holding that the merits of a suspension order are not reviewable,
Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.
S. 289;
United States v. SCRAP, 412 U.
S. 669;
Arrow Transportation Co. v. Southern R.
Co., 372 U. S. 658,
furnish further authority for holding that a "no investigation"
decision is not reviewable. Pp.
442 U. S.
456-450.
(c) The legislative history of the Mann-Elkins amendments adding
§ 15(8) to the Act further supports nonreviewability of "no
investigation" decisions. Prior to those amendments, the ICC had no
authority to suspend rates, or to adjudicate their lawfulness in
advance either of their becoming effective or of their being
challenged in a § 13(1) complaint, and the adoption of § 15(8) was
designed to avoid the disruptive consequences of judicial
interference with the ICC's ratemaking process. To allow the courts
to review § 15(8)(a) investigation decisions would amount to
"backhanded approval" of these same consequences, and judicial
review would once again undermine the ICC's primary jurisdiction by
bringing courts into the adjudication of the lawfulness of rates in
advance of administrative consideration. Pp.
442 U. S.
459-460.
3. There is no statutory support for a compromise position that,
while not immediately reviewable, the ICC's decisions under §
15(8)(a) do become reviewable later, upon the completion of
whatever proceedings may be initiated under § 13(1). While the §
13(1) remedy lessens the risk of harm from the ICC's initial
refusal to investigate or suspend under § 15(8)(a), that remedy is
independent of § 15(8)(a) proceedings. Pp.
442 U. S.
463-464.
570 F.2d 1349, reversed.
Page 442 U. S. 446
STEVENS, J., delivered the opinion of the Court, in which all
other Members joined, except POWELL, J., who took no part in the
consideration or decision of the cases.
MR. JUSTICE STEVENS delivered the opinion of the Court.
On September 14, 1977, the Interstate Commerce Commission
decided not to exercise its authority under § 1(8)(a) of the
Interstate Commerce Act (Act) to order a hearing to investigate the
lawfulness of a seasonal rate increase proposed by a group of
railroads. [
Footnote 1] The
question presented is
Page 442 U. S. 447
whether the Commission's refusal to conduct such an
investigation is subject to judicial review.
Because the Courts of Appeals for the Eighth Circuit,
Seaboard Allied Milling Corp. v. ICC, 570 F.2d 1349, and
the District of Columbia Circuit have answered this question
differently, [
Footnote 2]
Page 442 U. S. 448
we granted certiorari. 439 U.S. 1066. We now hold that the
Commission's "no investigation" decision is not reviewable.
Petitioner railroads' rate schedule was the first one proposed
under § 202(d) of the Railroad Revitalization and Regulatory Reform
Act of 1976 (the 4-R Act). 90 Stat. 36, amending 49 U.S.C. § 15
(1970 ed.).
See App. to Pet. for Cert. in No. 78-597, p.
28a. That provision directs the Commission to adopt "expeditious
procedures for the establishment of railroad rates based on
seasonal, regional, or peak-period demand for rail services."
[
Footnote 3]
Page 442 U. S. 449
In August, 1977, after the Commission had promulgated its new
standards and procedures for seasonal rate adjustments,
see Ex
parte No. 24, 355 I.C.C. 522, the Southern Freight Association
proposed a 20% increase in the rates for grain and soybeans shipped
from the Midwest in railroad-owned cars between September 15 and
December 15, 1977. The railroads supported their proposal with
statistics describing the high volume of grain shipments in the
fall, an explanation of the anticipated effect of the temporary
rates on railcar usage, and some cost evidence.
A number of shippers and large users of transported grain
(hereinafter shippers) filed protests claiming the proposed rates
were unlawful. [
Footnote 4]
They requested that the Commission exercise its authority under §
15(8)(a) to suspend these rates and to investigate the charges of
illegality. On September 14, 1977, a month after the rates were
filed and eight days after receiving the protests, the Commission
issued its order declining either to suspend or to investigate the
legality of the rates. App. 286-291.
In that order the Commission admonished the railroads
"to take prompt action to remove violations of the long- and
short-haul provision of section 4(1) of the Act, if any, in
connection with inter-territorial and intra-territorial movements
that may be caused by application of demand-sensitive rates on
whole
Page 442 U. S. 450
grains between points in southern territory."
Id. at 288. Moreover, the Commission directed the
carriers to file detailed weekly reports relating to the effects of
the new schedules,
id. at 289-290 (and, in a later order,
to keep accounts of all charges and receipts under the rates,
id. at 302), and, "out of caution," it instructed its
Bureau of Investigations and Enforcement and Bureau of Operations
"to closely monitor this matter."
Id. at 290. With respect
to the basic question whether to suspend the rates and conduct a
formal investigation, the Commission concluded:
"Weighing the contentions before us and the clear Congressional
purpose to permit experimental ratemaking, we will permit this
temporary adjustment to become effective."
Id. at 289. It noted, however, that § 13(1) of the Act,
which allows shippers to initiate mandatory post-effective
proceedings to inquire into and remedy violations of the Act, would
still be available to "protect" persons aggrieved by the rates.
[
Footnote 5] App. 289.
Page 442 U. S. 451
Immediately after the Commission entered its order, two judges
of the Court of Appeals granted an
ex parte application
for a temporary stay and enjoined the Commission from permitting
the tariff to go into effect.
Id. at 95. Eight days later,
however, the court dissolved its stay, and the new rates went into
effect.
Id. at 298-300. Two months after the seasonal
tariff had expired, the Court of Appeals filed its opinion
concluding that the Commission had begun an investigation but had
then erroneously terminated it without "adequately investigat[ing]
the charges" of "patent illegality" and without supporting its
decision "with appropriate findings and conclusions." 570 F.2d at
1352, 1355, 1356. It directed the Commission to hold hearings to
investigate more fully the protestants' charges of patent
illegality and, if the investigation revealed that the tariff was
unlawful, to make appropriate provisions for refund of increased
charges collected under the tariff.
Id. at 1356.
Although some of the just-quoted passages suggest that the Court
of Appeals viewed the Commission's order as an inadequately
investigated decision on the merits, other passages indicate that
it reviewed and disapproved of the order, realizing that it was a
decision not to reach the merits and not to investigate the
lawfulness of the rates. Because the period covered by the seasonal
tariff had already expired, the court first stated that it would
not decide whether the Commission's refusal to suspend the
effectiveness of the rates pending investigation was reviewable.
Id. at 1352. Assuming, however, that
United States v.
SCRAP, 412 U. S. 669,
412 U. S. 698,
and
Arrow Transportation Co. v. Southern R. Co.,
372 U. S. 658,
372 U. S.
667-668, had established that a suspension decision is
not reviewable, the court reasoned that the Commission's suspension
and investigation
Page 442 U. S. 452
powers are separate and distinct, and that the factors that had
prompted this Court in
Arrow
"to hold suspension orders not reviewable are not applicable to
decisions of the Commission to refuse to make or to terminate an
investigation of the lawfulness of a proposed tariff."
570 F.2d at 1353. It then concluded that the latter type of
decision is subject to judicial review even though the former is
not, primarily because, in its view, a single § 15(8)(a) proceeding
initiated by the Commission is a better means of determining the
lawfulness of the rates than numerous § 13(1) complaint proceedings
initiated by shippers contending that they have been overcharged.
570 F.2d at 1355.
We reverse. First, to the extent that the Court of Appeals
interpreted the Commission's order as a final decision that the
tariff was lawful, rather than simply a discretionary decision not
now to investigate its lawfulness, it has misconstrued the order.
Second, to the extent that its decision transcends this
misinterpretation of the Commission's order and suggests that even
a "no investigation" determination would be reviewable, it has
misconstrued Congress' intent with respect to § 15(8)(a).
I
It is, of course, true that a decision by the Commission
following a § 15(8) investigation to approve or disapprove a set of
rates is a judicially reviewable final decision.
E.g., United
States v. Louisiana, 290 U. S. 70.
See Chicago v. United States, 396 U.
S. 162. The shippers contend that this rule governs
here. In their view, the Commission, by reviewing and then leaving
intact rates it knew to be unlawful, effectively approved those
rates. But the express language of the Commission's order belies
any interpretation of its decision as a ruling on the legality of
petitioner railroads' seasonal tariff.
The claim of illegality most forcefully urged by the shippers,
both here and in the Court of Appeals, is that the schedules
contain a number of violations of the long- and short-haul
Page 442 U. S. 453
restrictions in § 4(1) of the Act. The Commission did not reject
this claim on its merits; on the contrary, it admonished the
carriers to correct any such violations that might exist, and
directed that records be kept to protect the shippers' right to
recover their damages in such subsequent proceedings as they might
bring pursuant to § 13(1) of the Act. App. 288-290. Since the
Commission expressly indicated that charges of violation of § 4(1)
could be resolved in § 13(1) proceedings, App. 289, it is plainly
incorrect to interpret its action as a prejudgment of the issue.
[
Footnote 6]
The Commission did note in addition that "the evidence offered
to support the alleged [§ 4(1)] violations [did] not warrant
suspension" or investigation.
Id. at 288. But, in light of
the nature of the inquiry that the Commission makes when a request
for suspension and investigation of an area-wide group of rates is
filed, this, too, is clearly not a decision that there were no
violations. Since 1910, when § 15(8)(a)'s precursor was added to
the Act, the Commission has typically made its suspension and
investigation decisions simultaneously; indeed, the Act appears to
contemplate that result.
See infra at
442 U. S.
458-459. In addition, the Act leaves the Commission only
30 days to decide on suspension before the rates automatically
become effective. 49 U.S.C. § 6(3). The Commission's primary duty,
therefore, is to make a prompt appraisal of the probable and
general reasonableness and legality of the proposed schedule --
which may, as in this case, involve thousands of rates for
designated commodities and routes -- rather than a detailed review
of the lawfulness of each individual component of the tariff
schedules. [
Footnote 7] In
Page 442 U. S. 454
short, the Commission simply has no time to, and did not in
these cases, finally decide on the lawfulness of the rate schedule
or its individual components during the preliminary 30-day
period.
II
Nor can § 15(8) be read to tolerate judicial review of the
Commission's decision not to investigate the lawfulness of a
proposed rate schedule. Although we will not lightly interpret a
statute to confer unreviewable power on an administrative agency,
Morris v. Gressette, 432 U. S. 491,
432 U. S. 501;
Dunlop v. Bachowski, 421 U. S. 560,
421 U. S. 567,
we have no choice in this case. For the ultimate analysis is always
one of Congress' intent, and in these cases, "there is persuasive
reason to believe that [nonreviewability] was the purpose of
Congress."
Abbott Laboratories v. Gardner, 387 U.
S. 136,
387 U. S.
140.
Initially, it is important to note the extremely limited scope
of the administrative decision that we conclude is not judicially
reviewable. We are not here concerned with the Commission's
rate-suspension authority, because, as we shall see, our prior
cases have already placed the exercise of that authority beyond the
control of the courts. Nor, in fact, are we holding entirely
unreviewable the Commission's exercise of its rate-investigation
authority. For any shipper may require the Commission to
investigate the lawfulness of any rate at any time -- and may
secure judicial review of any decision not to do so -- by filing a
§ 13(1) complaint.
E.g., ICC v. Baird, 194 U. S.
25,
194 U. S.
39.
Instead, our sole concern is the Commission's decision not to
investigate under § 15(8)(a), a decision that has only two final
consequences. First, the burden of proof with regard to
reasonableness is placed on the shipper under § 13(1), rather than
on the carrier, who would have borne it in a § 15(8)(a) proceeding.
(With respect to all other aspects
Page 442 U. S. 455
of lawfulness, however, the burden is borne by the shipper in
both proceedings.) Second, the shipper's relief, if unlawfulness is
proved, is limited under § 13(1) to actual damages, rather than the
full refund of overcharges available under § 15(8)(a). It is only
with regard to these two determinations, neither of which
necessarily affects any citizen's ultimate rights, [
Footnote 8] that we conclude -- based on the
language, structure, and history of the Act as well as the relevant
case law -- that the agency's exercise of discretion is
unreviewable.
A
With respect to the Commission's investigation power, § 15(8)(a)
is written in the language of permission and discretion. Under
it,
"the Commission
may, upon the complaint of an
interested party or upon its own initiative, order a hearing
concerning the lawfulness of [a] rate [which] hearing may be
conducted without answer or other formal pleading. . . ."
(Emphasis added.)
The statute is silent on what factors should guide the
Commission's decision; not only is "[t]he extent of this inquiry .
. . not . . . marked . . . with certainty,"
cf. United States
v. Louisiana, 290 U.S. at
290 U. S. 77,
but also, on the face of the statute, there is simply "no law to
apply" in determining if the decision is correct.
Cf. Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.
S. 402,
401 U. S. 410.
[
Footnote 9] Similar
circumstances
Page 442 U. S. 456
have been emphasized in cases in which we have inferred
nonreviewability.
See Barlow v. Collins, 397 U.
S. 159,
397 U. S. 166;
Schilling v. Rogers, 363 U. S. 666,
363 U. S.
674.
B
The structure of the Act also indicates that Congress intended
to prohibit judicial review. Congress did not use permissive
language such as that found in § 15(8)(a) when it wished to create
reviewable duties under the Act. Instead, it used mandatory
language, and it typically included standards to guide both the
Commission in exercising its authority and the courts in reviewing
that exercise. In particular, § 13(1), which plainly authorizes
rate investigation decisions that are reviewable,
ICC v. Baird,
supra at
194 U. S. 39,
provides that,
"[i]f . . . 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. . . ."
(Emphasis added.) The Court of Appeals' interpretation therefore
treats § 15(8)(a) as if it were written in the mandatory language
of § 13(1).
Of even greater significance, that interpretation would allow
shippers to use the open-ended and ill-defined procedures in §
15(8)(a) to render obsolete the carefully designed and detailed
procedures in § 13(1). For under the court's reading, at least when
one of the perhaps thousands of rates in a proposed schedule is
"patently illegal," any party could (and, given the burden of proof
and remedial advantages, many surely would) force the Commission
immediately to undertake an investigation under § 15(8)(a) and to
reach a judicially reviewable decision on the legality of the
rates. Nothing would be left for consideration under § 13(1). We,
of course, are reluctant, almost a century after the Act was
passed, to
Page 442 U. S. 457
adopt an interpretation of it that would effectively nullify one
of its original and most frequently used provisions
The disruptive practical consequences of such a determination
confirm our view that Congress intended no such result. The
Commission reviews over 50,000 rate-schedule filings each year;
many, including the one involved here, contain thousands of
individual rates.
See 91 ICC Ann.Rep. 113 (1977). If the
Commission, which generally makes its § 15(8)(a) investigation
decisions within 30 days in order to allow
pre-effective
suspension, must carefully analyze and explain its actions with
regard to each component of each proposed schedule, and if it must
increase the number of investigations it conducts, all in order to
avoid judicial review and reversal, its workload would increase
tremendously.
These practical effects of reviewability would be especially
disruptive in the present context of seasonal rates proposed under
§ 202(d) of the 4-R Act. The policies underlying that provision
favor greater freedom of action by the railroads, greater rate
flexibility, especially with respect to short-term rates, and more
limited supervision by the Commission [
Footnote 10] -- all of which would be disserved if the
courts may examine the Commission's initial investigation decisions
with respect to temporary rate adjustments. Furthermore, an
increase in the number of rate investigations in which the
railroad, rather than the challenging party, bears the burden of
proof and
Page 442 U. S. 458
in which the challenger need not prove actual damages before
recovering refunds would be out of place in a regulatory system
that leaves "the initiative in setting rates . . . with the
railroad."
Aberdeen & Rockfish R. Co. v. SCRAP,
422 U. S. 289,
422 U. S.
311.
There is an additional structural reason why the Commission's
investigation decisions are unreviewable. Section 15(8) was
originally included in the Mann-Elkins Act of 1910, 36 Stat. 552.
As adopted, and as it has remained during the ensuing 70 years, the
provision has given the Commission the power not only to
investigate, but also to suspend, proposed rates. 49 U.S.C. §
15(8)(b). Congress phrased the two powers in precisely the same
language, and placed the same time limits on the exercise of both.
See Asphalt Roofing Mfg. Assn. v. ICC, 186 U.S.App.D.C. 1,
8-9, 567 F.2d 994, 1001-1002 (1977); n. 2,
supra. The two
powers are inextricably linked, because the Commission has no
occasion to suspend a rate unless it also intends to investigate
it.
See United States v. Chesapeake & Ohio R. Co.,
426 U. S. 500,
426 U. S.
512-513 (
Chessie).
In view of this linkage, we need look no further than our
previous decisions concluding that the merits of a suspension
decision are not reviewable to find a sufficient answer to the
question presented in these cases.
Aberdeen & Rockfish R.
Co. v. SCRAP, supra at
422 U. S. 311;
United States v. SCRAP, 412 U.S. at
412 U. S.
691-692,
412 U. S. 698;
Arrow Transportation Co. v. Southern R. Co., 372 U.
S. 658. [
Footnote
11] Indeed, if any distinction is to be
Page 442 U. S. 459
drawn, it would make more sense to subject suspension, rather
than investigation, decisions to review, for the pre-effective
suspension of a new rate has a greater and more immediate impact on
carriers and shippers than does the initiation of an investigation
whose outcome is inevitably in doubt.
See Trans Alaska Pipeline
Rate Cases, 436 U. S. 631,
436 U. S. 641;
Chessie, supra at
426 U. S. 513. [
Footnote 12]
C
The legislative history of the Mann-Elkins amendments to the Act
also supports nonreviewability. Prior to the enactment of those
amendments, the Commission had no authority to suspend rates or to
adjudicate their lawfulness in advance either of their becoming
effective or of their being challenged by a private party in a §
13(1) complaint. In the years immediately preceding the enactment
of the amendments, rapidly rising rates encouraged shippers, with
some success, to ask the courts to enjoin unlawful rates before
they went into effect. As a result of the ensuing judicial
intervention in the
Page 442 U. S. 460
ratemaking process, the Commission was divested of much of its
primary jurisdiction with respect to rates, and the public was
subjected to nonuniform rates that depended on whether or not the
local district court had issued an injunction.
See 21 ICC
Ann. Rep. 9-10 (1907); 22 ICC Ann Rep. 10-12 (1908); 23 ICC Ann.
Rep. 6-7 (1909). [
Footnote
13]
As discussed at greater length in
Arrow, supra at
372 U. S.
662-672, the adoption of § 15(8) was designed to avoid
these disruptive consequences of judicial interference. If we
should now allow the courts to review § 15(8) investigation
decisions, we would be giving "backhanded approval" to these very
same consequences. 372 U.S. at
372 U. S. 664.
Judicial review would once again undermine the Commission's primary
jurisdiction by bringing the courts into the adjudication of the
lawfulness of rates in advance of administrative consideration. As
we said in
Arrow with respect to judicially mandated rate
suspension:
"A court's disposition of an application for [an order directing
the Commission to investigate rates] would seem to require at least
some consideration of the applicant's claim that the carrier's
proposed rates are unreasonable [or otherwise unlawful]. But such
consideration would create the hazard of forbidden judicial
intrusion into the administrative domain."
Id. at
372 U. S.
669-670. Moreover, this allowance for independent
judicial appraisal of the reasonableness of rates by every court of
appeals in the country might replicate the judicially created
"hazard[s] to uniformity" that, along with the courts' assault on
the Commission's primary jurisdiction, prompted Congress to pass
15(8) in the first place.
See 372 U.S. at
372 U. S. 671.
[
Footnote 14]
Page 442 U. S. 461
D
Given the strength of the statutory and legislative evidence
supporting nonreviewability, it is not surprising that, prior to
1977, no court had ever even adverted to the possibility of
reviewing a "no investigation" decision under § 15(8)(a).
Nonetheless, this Court has indicated on at least two occasions
that the decision whether the Commission should commence an
investigation under an analogous provision in the Act, § 13a(1), is
committed to the agency's discretion, and therefore not reviewable.
[
Footnote 15]
Page 442 U. S. 462
In
Chicago v. United States, 396 U.
S. 162, the Court held that orders discontinuing §
13a(1) investigations into the propriety of certain changes in
passenger service were reviewable rulings on the merits. In so
holding, however, the Court expressly distinguished a Commission
decision on the question whether an investigation should be
undertaken in the first place, saying:
"Whether the Commission should make an investigation of a §
13a(1) discontinuance [of passenger service] is of course within
its discretion, a matter which is not reviewable.
New Jersey v.
United States, 168 F.
Supp. 324,
aff'd, 359 U. S. 27."
396 U.S. at
369 U. S.
165.
In the New Jersey case cited in
Chicago, a three-judge
District Court had squarely held that the Commission's refusal to
commence a § 13a(1) investigation into a railroad's abandonment of
service was not reviewable.
See 168 F.
Supp. 324, 328 (NJ 1958). Our summary affirmance of that
holding in
359 U. S. 27, while
having less precedential value than an opinion in an argued case,
was nonetheless a ruling on the merits,
Hicks v. Miranda,
422 U. S. 332, and
it, along with the
Chicago dictum, strongly supports the
nonreviewability of § 15(8)(a) investigation determinations.
In short, the necessary "
clear and convincing evidence' that
Congress meant to prohibit all judicial review" of the Commission's
limited decision not to initiate an investigation under § 15(8)(a)
is provided by the language of the statute, as well as its place
within the statutory design of the Act, its legislative history,
and the light shed on it by our case law concerning analogous
statutes. Dunlop v. Bachowski, 421
Page 442 U. S. 463
U.S. at
421 U. S. 568.
See Abbott Laboratories v. Gardner, 387 U.S. at
387 U. S.
141.
III
We also find no statutory support for the Solicitor General's
belated compromise position that, while not immediately reviewable
(
i.e., not "final" at the stage of the administrative
proceedings involved in these cases), the Commission's decisions
under § 15(8)(a) do become reviewable later, upon the completion of
whatever proceedings may be initiated under § 13(1). [
Footnote 16] Under this novel
reading of the Act, if a shipper is denied § 13(1) relief, he not
only may appeal that decision to a court of appeals, but also may
appeal the Commission's earlier decision not to suspend or
investigate a rate under § 15(8)(a).
Although it is true that the § 13(1) remedy lessens the risk of
harm from the Commission's initial refusal to investigate or to
suspend under § 15(8)(a),
Aberdeen & Rockfish R. Co.,
422 U.S. at
422 U. S. 311,
it is nonetheless clear that that remedy is independent of §
15(8)(a) proceedings. First, the language of § 15(8)(a) suggests no
linkage to § 13(1), nor any basis for judicial review at
any point in the administrative process. Second, § 13(1)
has been an independent and self-contained procedure since the Act
was first passed in 1887. When § 15(8)(a) was added some 23 years
later, there was no indication that it was intended as an
amendment to § 13(1), rather than as a limited
pre-effective and Commission-initiated
alternative to the
post-effective and shipper-initiated procedures in § 13(1). Third,
if shippers are encouraged in every case to request investigations
under § 15(8)(a) in order to preserve for later review under §
13(1) a claim that one was not conducted, and if the Commission's
decisions are ultimately subjected to review, many of the practical
problems
Page 442 U. S. 464
that we discussed above with respect to the Court of Appeals'
approach would still arise.
In sum, the force of the arguments against reviewability of §
15(8)(a) investigation decisions is not diminished by altering the
point in the administrative process at which the courts are allowed
to intrude.
The judgment of the Court of Appeals is
Reversed.
MR. JUSTICE POWELL took no part in the consideration or decision
of these cases.
* Together with No. 78-597,
Interstate Commerce Commission
v. Seaboard Allied Milling Corp. et al.; and No. 78-604,
Seaboard Coast Line Railroad Co. et al. v. Seaboard Allied
Milling Corp. et al., also on certiorari to the same
court.
[
Footnote 1]
At all relevant times, § 15(8) provided in pertinent part:
"(a) Whenever a schedule is filed with the Commission by a
common carrier by railroad stating a new individual or joint rate,
fare, or charge, or a new individual or joint classification,
regulation, or practice affecting a rate, fare, or charge, the
Commission may, upon the complaint of an interested party or upon
its own initiative, order a hearing concerning the lawfulness of
such rate, fare, charge, classification, regulation, or practice.
The hearing may be conducted without answer or other formal
pleading, but reasonable notice shall be provided to interested
parties. Such hearing shall be completed and a final decision
rendered by the Commission not later than 7 months after such rate,
fare, charge, classification, regulation, or practice was scheduled
to become effective, unless, prior to the expiration of such
7-month period, the Commission reports in writing to the Congress
that it is unable to render a decision within such period, together
with a full explanation of the reason for the delay. If such a
report is made to the Congress, the final decision shall be made
not later than 10 months after the date of the filing of such
schedule. If the final decision of the Commission is not made
within the applicable time period, the rate, fare, charge,
classification, regulation, or practice shall go into effect
immediately at the expiration of such time period, or shall remain
in effect if it has already become effective. Such rate, fare,
charge, classification, regulation, or practice may be set aside
thereafter by the Commission if, upon complaint of an interested
party, the Commission finds it to be unlawful."
"(b) Pending a hearing pursuant to subdivision (a), the schedule
may be suspended, pursuant to subdivision (d), for 7 months beyond
the time when it would otherwise go into effect, or for 10 months
if the Commission makes a report to the Congress pursuant to
subdivision (a), except under the following conditions. . . ."
90 Stat. 2630, 49 U.S.C. § 15(8).
On October 17, 1978, President Carter signed into law Subtitle
IV of Title 49, United States Code, "Transportation," 49 U.S.C. §
10101
et seq. (1976 ed., Supp. II), which recodifies and
revises some of the archaic language of the Interstate Commerce
Act.
See Note preceding 49 U.S.C. § 10101 (1976 ed., Supp.
II). Section 10707 of the recodified Title 49 corresponds to §
15(8) of the old statute. In this opinion, we shall refer to the
relevant statutes by their former designations.
[
Footnote 2]
In
Asphalt Roofing Mfg. Assn. v. ICC, 186 U.S.App.D.C.
1, 8-9, 567 F.2d 994, 1001-1002 (1977), the Court of Appeals for
the District of Columbia Circuit held:
"The orders challenged in each of these proceedings permitted
rates filed by the railroads to go into effect without either
investigation or suspension. It is firmly settled that ICC orders
suspending rate increases for the statutory period are within the
agency's sole discretion, and are judicially unreviewable. . . .
The United States and the petitioners urge that a distinction
should be drawn between Commission orders refusing to suspend rate
increases and those declining to institute an investigation; the
latter, they argue, should be held reviewable. The basic difficulty
with this argument is that section [15(8)(a)], which empowers the
Commission both to suspend and to investigate proposed rate
increases, grants both powers in substantially the same language.
There is therefore no ground, on the basis of the Act, for treating
the two powers differently for purposes of reviewability. We hold
that the reviewability of the Commission's decision to permit the
rate increases in these proceedings to go into effect without
suspension or investigation is controlled by the cases holding the
Commission's decision whether to suspend a rate increase to be
unreviewable."
[
Footnote 3]
Section 202(d), codified originally at 49 U.S.C. § 15 (17) and
as set forth therein, provides as follows:
"Within 1 year after February 5, 1976, the Commission shall
establish, by rule, standards and expeditious procedures for the
establishment of railroad rates based on seasonal, regional, or
peak-period demand for rail services. Such standards and procedures
shall be designed to (a) provide sufficient incentive to shippers
to reduce peak-period shipments, through rescheduling and advance
planning; (b) generate additional revenues for the railroads; and
(c) improve (i) the utilization of the national supply of freight
cars, (ii) the movement of goods by rail, (iii) levels of
employment by railroads, and (iv) the financial stability of
markets served by railroads. Following the establishment of such
standards and procedures, the Commission shall prepare and submit
to the Congress annual reports on the implementation of such rates,
including recommendations with respect to the need, if any, for
additional legislation to facilitate the establishment of such
demand-sensitive rates."
The provision is currently codified in 49 U.S.C. § 10727 (1976
ed., Supp. II).
See n
1,
supra.
[
Footnote 4]
The shippers objected to the rates as unreasonably high in
violation of 49 U.S.C. § 1(5); as discriminatory contrary to §§ 2,
3(1), because they applied only to railroad-owned cars; as not
conforming to the goals of the seasonal rate authorization; and as
violating the long- and short-haul clause of § 4(1).
[
Footnote 5]
Section 13(1) provides:
"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."
49 U.S.C. § 13(1).
This provision is currently codified in 49 U.S.C. § 11701(b)
(1976 ed., Supp. II).
See n 1,
supra.
[
Footnote 6]
The analysis in text applies with equal force to the
Commission's treatment of the alleged § 2 and § 3(1) violations.
See App. 288-289.
[
Footnote 7]
Cf. United States v. Louisiana, 290 U. S.
70,
290 U. S. 75-77;
Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.
S. 289,
422 U. S.
312-313;
United States v. SCRAP, 412 U.
S. 669,
412 U. S. 692,
n. 16 (even after actually investigating an area-wide rate schedule
and finding that it contains individually unlawful components, the
Commission my properly approve it if the rates are "generally"
lawful).
[
Footnote 8]
If a shipper proves that a rate is unreasonable and that he was
damaged in the full amount he was overcharged, the outcome of a §
13(1) proceeding will be no different than that of a § 15(8)(a)
proceeding in which the carrier fails to establish the
reasonableness of the rate.
[
Footnote 9]
Our cases foreclose requiring the Commission to disapprove, much
less to investigate, every rate schedule that can be shown to
include some individually unlawful rates.
E.g., United States
v. Louisiana, supra at
290 U. S. 75-77.
The standard proposed by the Court of Appeals, which would require
an investigation if individual rates are "patently illegal," is
equally foreclosed by those cases. Moreover, like the standard
proposed by the Solicitor General, Brief for United States 34
(review for "abuse of discretion or [action] contrary to
[Commission's] statutory mandate"), it is entirely without support
in the statute.
[
Footnote 10]
In its declaration of policy with respect to the Title of the
4-R Act that included the precursor of § 202(d), the Senate Report
on that Act stated:
"[T]he purposes of [the Title] include fostering competition
among all carriers in order to promote more adequate and efficient
transportation and the attractiveness of rail investment,
permitting greater railroad price flexibility, promotion of a rate
structure more sensitive to variations in demand and separate rates
for distinct services, formulation of standards and guidelines for
determining adequate revenue levels, and modernizing and clarifying
the functions of rate bureaus."
S.Rep. No. 94-499, p. 45 (1975).
See also id. at 15
(primary purpose of the 4-R Act amendments was to end "excessive
regulatory delay");
n 3,
supra.
[
Footnote 11]
See also Trans Alaska Pipeline Rate Cases, 436 U.
S. 631,
436 U. S.
638-639 n. 17. In those cases, the Court reaffirmed the
conclusion in
Arrow and the
SCRAP cases "that
courts may not independently appraise the reasonableness of rates"
--
i.e., the merits -- in reviewing suspension decisions.
It did, however, "conclude that Congress did not mean to cut off
judicial review for [the] limited purpos[e]" of deciding whether
the Commission had jurisdiction to suspend the rates in question,
i.e., whether they were "new rates" within the meaning of
§ 15(8)(a).
See also Schilling v. Rogers, 363 U.
S. 666,
363 U. S.
676-677 ("different considerations" apply to the
reviewability of an agency "refus[al] or fail[ure] to exercise a
statutory discretion" than to the reviewability of its decision
once it does exercise that discretion). Here, it is conceded by all
that the Commission has authority with respect to rates such as
those at issue either to suspend (or investigate) or not to suspend
(or investigate) them, and that it has exercised its authority. The
question raised is whether it did so correctly under the particular
circumstances involved -- a question that cannot be answered by a
reviewing court without "independently apprais[ing] the
[lawfulness] of [the] rat[e]."
[
Footnote 12]
Similarly, the situation in
Arrow, in which the courts
first held a "no suspension" decision unreviewable, was far more
conducive to a finding of reviewability than the situation
presented by these cases. For in
Arrow, the parties
seeking judicial intervention were competitors of the railroads
alleging predatory pricing, rather than shippers alleging excessive
pricing. As such, it was uncertain -- and the Court expressly
refused to decide -- whether those complainants had access to the
post-effective judicial remedies that are available to shippers
such as respondents here.
See 372 U.S. at
372 U. S. 669.
In short, it was possible in
Arrow, but not here, that
nonreviewability would leave the aggrieved party without any
judicial remedy at all.
[
Footnote 13]
See generally 1 I. Sharfman, The Interstate Commerce
Commission 49-55 (1931); Spritzer, Uses of the Summary Power to
Suspend Rates: An Examination of Federal Regulatory Agency
Practices, 120 U.Pa.L.Rev. 39, 45-49 (1971).
[
Footnote 14]
Although most of the debate surrounding the relevant portions of
the Mann-Elkins Act was concerned with the suspension power, it is
absolutely clear both that Congress intended to commit that power
to the unfettered discretion of the Commission and that it
perceived it and the investigation power as closely linked.
E.g., S.Rep. No. 355, 61st Cong., 2d Sess., pt. 1, p. 9
(1910); 45 Cong.Rec. 3472 (1910) (Sen. Elkins);
id. at 462
(transmittal message of Pres. Taft).
[
Footnote 15]
Title 49 U.S.C. § 13a(1) provides in relevant part:
"A carrier . . . may, but shall not be required to, file with
the Commission . . . notice at least thirty days in advance of any
. . . proposed discontinuance or change [in service]. The carrier
or carriers filing such notice may discontinue or change any such
operation or service pursuant to such notice except as otherwise
ordered by the Commission pursuant to this paragraph. . . . Upon
the filing of such notice, the Commission
shall have
authority during said thirty days' notice period, either upon
complaint or upon its own initiative without complaint, to enter
upon an investigation of the proposed discontinuance or change.
Upon the institution of such investigation, the Commission, by
order served upon the carrier or carriers affected thereby at least
ten days prior to the day on which such discontinuance or change
would otherwise become effective, may require such train or ferry
to be continued in operation or service, in whole or in part,
pending hearing and decision in such investigation, but not for a
longer period than four months beyond the date when such
discontinuance or change would otherwise have become effective. If,
after hearing in such investigation whether concluded before or
after such discontinuance or change has become effective, the
Commission finds that the operation or service of such train or
ferry is required by public convenience and necessity and will not
unduly burden interstate or foreign commerce, the Commission may by
order require the continuance or restoration of operation or
service of such train or ferry, in whole or in part, for a period
not to exceed one year from the date of such order."
(Emphasis added.)
This provision, it should be noted, closely parallels §
15(8)(a). Both use permissive language and both grant the
Commission mutually supportive investigation and suspension
powers.
[
Footnote 16]
The United States did not take this position in the Court of
Appeals, nor, so far as we are advised, has this position
previously been advanced to any federal court.