Frozen Food Express v. Interstate Commerce Commission/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

351 U.S. 40

Frozen Food Express  v.  Interstate Commerce Commission

 Argued: and Submitted March 7, 1956. --- Decided: April 23, 1956

Mr. Justice HARLAN, dissenting.

I do not agree that the District Court had jurisdiction to entertain this action to set aside the Commission's 'order.' It seems to me that the case falls squarely within those carefully developed rules which require that judicial intervention be withheld until administrative action has reached its complete development. I find nothing in the nature of the order which commends it to reviewability at this stage other than the fact that its promulgation was preceded by a lengthy investigation and that it contains a series of 'findings' and 'conclusions.' These factors should not be permitted to obscure the true character of the order.

After a self-initiated investigation, in which various carriers participated, the Commission entered this order discontinuing the proceedings and incorporating the 'findings of fact and conclusions' of the Commission. That the order was not intended to be a 'legislative' regulation seems apparent, since it was not put in the form ordinarily used by the Commission in promulgating regulations. The order simply lists the commodities considered by the Commission and determines whether they are within the § 203(b)(6) exemption; it nowhere commands that carriers hauling commodities considered non-exempt comply either with the order or with the general requirements of the Interstate Commerce Act. It is clear, therefore, that no administrative or criminal proceeding can be brought for violation of the order itself. And it is equally clear that the proceeding did not conclude any rights as between any specific carriers and the Commission.

The Interstate Commerce Act does, of course, provide for administrative and criminal sanctions to enforce compliance with its provisions. An uncertificated carrier hauling commodities non-exempt under § 203(b)(6) runs the risk of a criminal prosecution under § 222(a) of the Act. But the order has no operative effect in such a proceeding-it does not extend the carrier's criminal liability, which exists because of a violation of the Act and not the order. And if the enforcement takes the form of a cease and desist proceeding against a particular carrier, again the only question would be whether the Act, rather than the order, was being violated. If such an administrative proceeding is instituted, and a cease and desist order is issued, the carrier subject to that order would be entitled to contest the statutory authority of the Commission in judicial proceedings of precisely the scope brought here.

Nor can this order be likened to a determination of status, held reviewable in Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. As I understand that case, the touchstone of the decision was that the determination 'necessarily and immediately carried direction of obedience to previously formulated mandatory orders addressed generally to all carriers amenable to the Commission's authority.' 307 U.S. at page 144, 59 S.Ct. at page 764. The specific determination that a particular carrier must comply with Commission regulations is quite different from this order, which is directed to no one in particular and is binding on no one, not even the Commission. Neither can this order be analogized to a declaratory order directed to the status of a particular carrier, which might be reviewable as carrying with it a direct threat of prosecution-see Rochester Telephone Corp. v. United States, supra, 307 U.S. at page 132, 59 S.Ct. at page 758, note 11. Indeed, the Commission itself does not consider its determinations the final answer to the meaning of the § 203(b)(6) exemption, even for administrative purposes. This is evident from the proceedings in East Texas Motor Freight Lines v. Frozen Food Express, 350 U.S. 49, 76 S.Ct. 574, where in a cease and desist proceeding the Commission heard new evidence on whether the particular commodities there involved were within the exemption, and was evidently ready to reconsider the determinations embodied in the order involved here.

To be sure, the order does serve as a warning to carriers that the Commission interprets the Act in a particular way, and it is true that courts will give the Commission's views some indeterminate weight in construing the statute. But that very fact, instead of justifying a holding of reviewability, seems to me a strong argument against it. The Commission's willingness, in individual cases, to reconsider its determinations with respect to particular commodities points up the tentative nature of the conclusions here sought to be reviewed. When this action is heard on the merits, the District Court will have as an aid in construing the statute administrative interpretations which are admittedly inconclusive, and if they are to be given any weight it would seem important that this Court not do anything to freeze them in their present immature state. For all we know, the Commission's decision not to issue this order in the form of regulations may have been because it recognized the need for further study.

Years of experience have shown that § 203(b)(6) presents difficult problems of interpretation, and this Court should be wary of establishing a procedure which would prematurely throw into the courts questions of statutory construction not arising in the context of concrete facts, and which does not bring to the courts even the benefit of final interpretation by the agency assigned to administer the statute. That this should be done in a case where there is a right of direct appeal to this Court makes the wisdom of today's decision even more questionable.

Lastly, the order does not have the immediate impact of the sort which, at times, has led this Court to regard particular administrative action as ripe for judicial review. In Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563, the very existence of the regulations had, without anything more, an immediate effect on the business of the party attacking them. There is much to be said for finding administrative action reviewable when it entails immediate practical consequences for those affected by it. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. But the carriers subject to the Interstate Commerce Act are in no way worse off now than they were before this order issued; there is no greater liability or risk under the statute occasioned by the order, which has no more effect than would any other informal expression of views by the Commission. If anything, carriers are in a better position, since they can now make a more reasoned judgment as to the applicability of the statute to particular commodities, and this may have been the principal reason for jthe Commission making public its findings.

In my view, then, the language quoted by the majority from United States v. Los Angeles & S.L.R. Co. aptly describes this order of the Commission, and I consider that wise decision controlling here. Neither the character nor the meaning of this order can be changed by the fact that the Commission, in asking us to hold it reviewable, calls it a 'formal determination' of the scope of § 203(b)(6). The significant fact is that, as shown by East Texas Motor Freight Lines v. Frozen Foods Express, 350 U.S. 49, 76 S.Ct. 574, the Commission itself does not consider its order definitive. Today's decision opens the door wide to premature judicial review of various kinds of administrative action, and I must withhold my assent from it. I would affirm the decision below.

Notes