Union Electric Co. v. United States

626 F.2d 1348
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 16, 1980
DocketNos. 79-1844, 79-1898, 79-1920, 79-1921, 79-1972, 80-1015 and 80-1089
StatusPublished
Cited by5 cases

This text of 626 F.2d 1348 (Union Electric Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Union Electric Co. v. United States, 626 F.2d 1348 (8th Cir. 1980).

Opinion

LAY, Chief Judge.

Petitioners in these consolidated cases represent shippers of various commodities whose transportation rates were affected by a general increase in railroad carrier freight charges, effective October 15,1979.1 They seek review of the Interstate Commerce Commission’s, (ICC), decision not to suspend or investigate the increase before it became effective. Ex Parte 368, Increased Freight Rates and Charges, Nationwide— 1979. Before proceeding to the merits, we have limited briefs and argument to the question raised by appellee ICC’s motion to dismiss: whether this court has jurisdiction to review the ICC decision and order. We conclude it does not.

I. Factual Background.

On July 26, 1979, all railroads and certain water and motor carriers having joint rates with them petitioned the ICC for authority to file tariff schedules increasing freight rates. The carriers submitted 60 verified statements constituting their evidential case, gave notice and served the petition and statements, and furnished data to the public. See Procedures Governing Rail Carrier General Increase Proceedings, 49 C.F.R. §§ 1102.1-.9 (1979). They also filed an evaluation of environmental considerations, pursuant to ICC Revised Guidelines for Implementation of the National Environmental Policy Act of 1969, 49 C.F.R. §§ 1108.1-.20 (1979).

On August 8, 1979, the ICC granted special permission to publish and file the general increase schedules, or master tariff, as requested. It conditioned permission on the tariff taking effect upon not less than 30 days notice and expiring one year thereafter. The permission was given subject to protest and possible suspension and rejection. All prior ICC orders were ordered modified to the extent necessary to allow the filing.

The August 8th order made all common carriers by rail parties to the proceeding. Noting that the Interstate Commerce Act, 49 U.S.C.A. § 10707(c) (Supp.1979), requires filing verified complaints seeking suspension of proposed rate changes, the ICC required any person opposing the increase to file verified statements containing all relevant evidence the party wished the ICC to consider by September 6, 1979. Comments on environmental impact and presidential wage and price guidelines were specifically invited. The carriers were given until September 12th to file and serve replies and rebuttal evidence.

On October 5, 1979, the ICC issued a second decision and order. It concluded that, with one exception, “the record in this proceeding warrants that the Commission decline to suspend or investigate the proposed increase.” The order was conditioned upon postponement of the effective date to October 15, 1979.

The ICC based its decision not to suspend the master tariff as a whole upon its finding that the proposed revenue increase was justified by increased railroad costs.2 It also found requirements of the National Environmental Policy Act of 1969,42 U.S.C. § 4321 (NEPA), and the presidential wage and price guidelines were met.

[1351]*1351The decision mentioned three specific commodity groups. The increase for iron or steel scrap was the exception to the general order: it was ordered suspended and placed under investigation for a consolidated decision with another proceeding. The ICC allowed the general rate increases for recyclables on the condition that criteria of reasonableness and discrimination, established in an earlier, special investigation of recyclable rates, be met. The ICC also refused to exclude special grain tables from the master tariff.

II. Analysis.

A. Increases on Coal and Wheat: Nos. 79-1972, 79-1844, 80-1089, 79-1920, 79-1921.

North Dakota Wheat Commission, (domestic and export grain), Union Electric Company, Consumers Power Company, Systems Fuel Inc., and Celanese Chemical Company, (coal), confine their challenge to the percentage by which the increase on their particular commodity exceeds the average nationwide or region-wide general increases. These petitioners request remand to the ICC with instructions to reconsider and make proper, adequate findings on the reasonableness of the increase as applied to their commodities. We first consider reviewability of the order in the context of their allegations.

The determinative issue is whether the ICC’s action was a refusal under 49 U.S.C. § 10707(a)3 to investigate lawfulness [1352]*1352or in the language of the revised Act, to begin a proceeding to determine whether the proposed rate violated the Interstate Commerce Act. If it was, the recent decision by the United States Supreme Court in Southern Railway v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979), teaches that it is unreviewable.

In Seaboard, a group of railroads filed a seasonal demand rate increase. See 49 U.S.C. § 10727. Shippers petitioned the ICC for suspension and investigation of the increases’ lawfulness under what is now section 10707(a) of the Act.4 A month after the rate filing, the ICC declined to suspend or investigate, and the shippers attempted to appeal that decision. The Court held the decision was not a final determination that the tariff was lawful, but rather a nonfinal decision not to investigate lawfulness. Seaboard, 442 U.S. at 452-54, 99 S.Ct. at 2393-94. The Court also held Congress did not intend review of a section 10707 “no investigation” decision, because the statutory language, design and history show the decision is committed to agency discretion. Additionally, the Court reasoned that review of an ICC decision not to suspend or investigate would require an initial, independent appraisal of the reasonableness of the proposed rate. This would conflict with legislative intent to avoid judicial disruption of the administrative rate-making process prior to final decision. Investigation is linked to ICC power to suspend, the Court stated, and prior Supreme Court cases have held suspension decisions are unreviewable. The Court found support for its decision in the disruptive consequences of requiring judicially reviewable decisions on the legality of proposed tariffs in light of the numerous tariff filings, many of which include thousands of individual rates. Judicial review of refusals to investigate before rates become effective would lessen shipper incentive to initiate investigation and to obtain a final ruling on the reasonableness of their particular commodity’s rate after it had become effective. See 49 U.S.C. §§ 11701(b), 10704(a)(1).5

Petitioners’ request for review is premised on the assumption that the ICC made a final decision on a complete record after investigation, so

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626 F.2d 1348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-electric-co-v-united-states-ca8-1980.