United States v. Southern Railway Company

380 F.2d 49, 1967 U.S. App. LEXIS 6187
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 30, 1967
Docket10769_1
StatusPublished
Cited by19 cases

This text of 380 F.2d 49 (United States v. Southern Railway Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Southern Railway Company, 380 F.2d 49, 1967 U.S. App. LEXIS 6187 (4th Cir. 1967).

Opinion

SOBELOFF, Circuit Judge:

We are confronted in this appeal with an important question of administrative law concerning the procedure by which a dissatisfied carrier may challenge the validity of a regulation of the Interstate Commerce Commission. The District Court granted the defendant Southern Railway Company’s motion for summary judgment in the action brought by the United States to enforce statutory penalties for violation of car service orders issued by the Commission. 1 The basic issue is whether by invalidating the order in question the District Court exceeded its jurisdiction.

On November 7,1963, Division 3 of the Commission, finding that an acute shortage of freight cars existed throughout the country and that unjustifiable delays in the placement and removal of available cars were impairing effective utilization of freight car capacity, declared that an “emergency” existed and published Car Service Order No. 947. The order sought to increase the efficiency of commercial rail transportation by requiring that cars be positioned for unloading on consignees’ tracks within a specified time after their arrival at the carrier’s yards; empty or newly loaded cars had to be removed within an equivalent period. 2 A *51 copy of the order, which was to become effective four days later, was served on the Association of American Railroads as agent for most of the nation’s railways, including Southern. 3

The Commission’s customary practice is to issue rules and regulations after a hearing at which interested carriers may present their views. It is authorized, however, by section 1(15) of the Interstate Commerce Act, 49 U.S.C. § 1(15), to dispense with a preliminary hearing whenever it is of the “opinion that * * [an] emergency requiring immediate action exists * * 4 In this instance the Commission, in view of its finding of *52 emergency, proceeded under Section 1 (15). The Act nevertheless permits an affected carrier to file a petition for “rehearing, reargument or reconsideration” in advance of the effective date of the order, and this automatically stays implementation of the Commission’s order until it has ruled on the petition. 5 Southern failed to avail itself of this option and did not contest the order’s validity until the commencement of the present action.

The government’s complaint alleged that between January 23, 1964 and February 24, 1964 Southern violated the order on twenty separate occasions by failing to observe the prescribed time limits at its Greenville, South Carolina yard. Demand was made for the imposition of the maximum $500.00 fine for each violation. Southern admitted noncompliance with the time limits, but insisted that standing alone these defaults were insufficient to create liability. Its position was that the order should not be interpreted to subject it to liability without fault, and that all but one of the delays in car placement and removal were occasioned by two train derailments, one in the Greenville yard and the other several miles north of the yard, making compliance impracticable.

Southern’s version of the circumstances surrounding the alleged violations is as follows. The derailments severely disrupted normal operations at the Green-ville Yard from January 28, 1964 to March 1,1964. Throughout this period it concentrated on clearing and repairing damaged tracks and insuring the uninterrupted flow of through traffic. Implementation of this policy required committing almost all of its equipment, and it was unable to use switch engines to transfer freight cars to and from the various sidings. Diverting men and machinery necessary to achieve compliance with the order would, it asserted, have created a bottleneck at the yard and would have seriously dislocated rail traffic along the Eastern seaboard. Viewing its course of conduct as the most expeditious method of keeping cars in service, Southern argued that it had acted consistently with the broad underlying purpose of the order.

Southern further contended that the order was invalid because no “emergency” existed justifying disregard of the notice and hearing requirements of section 1 (14). 6 It asserted that the nationwide freight car shortage which prompted issuance of the order had existed since 1955 and that the Commission was aware of it from that time. 7 The railroad also maintained that by employing the term “directions” in section 1(15), as contrasted with the phrase “rules, regulations and practices” in section 1(14), Congress contemplated a limited order designed to deal with specific, non-recurring problems, for example, isolated car shortages in a confined geographic area, and did not authorize the Commission to promulgate broad, semi-permanent regulations without affording a full preliminary hearing.

The United States moved for summary judgment based on the triple-pronged contention (1) that the pleadings raised no genuine issues as to any material fact, *53 (2) that Southern could not challenge the validity of the order in enforcement proceedings, and (3) that, in any event, the order was valid. Southern responded with a cross-motion for summary judgment, to which it appended the affidavit of General Yardmaster Caldwell of the Greenville Yard setting forth the actions taken by Southern in response to the derailments and stating his conclusion that they were “the most expeditious way to keep cars in service.” Southern’s thrust was met by a government parry in a counter-affidavit by Commission agent Crosby, who was responsible for policing Southern’s operations at the yard. Crosby stated that the effects of the derailments did not render compliance with the time limits either impossible or unreasonable. The District Court ruled that the Commission’s order was open to attack and granted Southern’s motion, holding that the order, which it characterized as a “sweeping pronouncement,” was entirely inconsistent with the concept of emergency “directions,” 8 and that it “sought to deal with a chronic problem, not an emergency.” 9 Alternatively, the court held that Southern had not violated the order.

I.

We think that the District Judge erred in entertaining Southern’s challenge to the validity of the order. In our view the statutory provisions governing review of Commission orders, set forth in the margin, 10 were intended to confine the presentation of such challenges to a specially convened three-judge district court after the carrier has filed, and the Commission has ruled upon, a petition for “rehearing, reargument or reconsideration.”

This was the conclusion of the Fifth Circuit in United States v. Southern Ry., 364 F.2d 86

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380 F.2d 49, 1967 U.S. App. LEXIS 6187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-southern-railway-company-ca4-1967.