United States v. Interstate Commerce Commission (337 U.S. 426)/Dissent Frankfurter

by Felix Frankfurter

United States Supreme Court

337 U.S. 426

United States  v.  Interstate Commerce Commission

 Argued: March 2, 1949. --- Decided: June 20, 1949

Mr. Justice FRANKFURTER, with whom Mr. Justice JACKSON and Mr. Justice BURTON join, dissenting.

Four times shippers have asked this Court to recognize the right to review orders of the Interstate Commerce Commission denying claims for reparations against carriers; four times the United States resisted the right to such judicial review; four times this Court sustained the United States and held that the courts were without jurisdiction to review orders of the Commission denying reparations. Twice the decisions followed full argument: Standard Oil Co. v. United States, 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999, in which the bar of the Interstate Commerce Act to such review was expounded, and Brady v. United States, 283 U.S. 804, 51 S.Ct. 559, 75 L.Ed. 1424, which relied on the Standard Oil case decided only a few weeks before. Twice thereafter the dismissal by district courts, for want of jurisdiction, of attempts to review such reparation orders was summarily affirmed without argument, so definitely had the Standard Oil case settled the matter. Allison & Co. v. United States, 296 U.S. 546, 56 S.Ct. 175, 80 L.Ed. 387, affirming D.C., 12 F.Supp. 862; Ashland Coal & Ice Co. v. United States, 325 U.S. 840, 65 S.Ct. 1573, 89 L.Ed. 1966, affirming D.C., 61 F.Supp. 708, decided less than four years ago. In order to recover a money claim of its own, the Government in this case has suddenly shifted a position in this case maintained by it for nearly twenty years against all other shippers and urges the right to review an order denying reparations. Indeed, at the very same time that the Government was arguing before the District Court for the District of Columbia for the right to review an order denying it reparations, the Government successfully resisted precisely the same argument by a private shipper in a suit in the District Court for the Eastern District of Michigan. Great Lakes Steel Corp. v. United States, D.C., 81 F.Supp. 450. And the Government did so on the basis of the controlling series of cases in this Court decided on grounds which we are now asked to disregard. ^[1]

We are vouchsafed no explanation for the fact that the United States should have urged four times upon this Court, and contemporarneously with these pro eedings in another district court, that an order resulting from a reparation proceeding before the Interstate Commerce Commission is not reviewable, and yet seeks review in this instance. The only explanation that lies on the surface is that in all the other cases the United States was resisting the claims of private shippers, while in this case the Government itself is the shipper. No doubt enlightenment sometimes comes through self-interest. But this Court's construction of the Interstate Commerce Act, long matured in a series of cases, ought not to shift with a shift in the Government's interest. The Interstate Commerce Commission rightly protests against it. To yield to the Government's new contention is not only to reverse a settled couse of decision. To do so is to mutilate the whole scheme of the Interstate Commerce Act by disregarding the distribution of authority Congress saw fit to make between the Commission and the courts for the enforcement of that Act.

One would suppose that four uniform decisions of this Court, rendered after thorough consideration of a statutory scheme, constitute such a body of law as not to be overruled, wholly apart from any argument that this Court's construction of legislation is confirmed by Congress by reenactment without change. The Transportation Act of 1940 ^[2] reenacted the relevant provisions of the Interstate Commerce Act after this Court had ruled three times that a shipper who has unsuccessfully asked the Commission for damages is bound by its determination and cannot thereafter have another go at it in the courts. The construction which these decisions have made should be adhered to not only because the precise issue has already been decided by this Court but because the Interstate Commerce Act requires it. 'When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional enactment under which judicial review is authorized.' National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739. It will hardly be suggested that the Constitution requires judicial review of a reparation order by the Commission. Such a notion is precluded by Cary v. Curtis, 3 How. 236, 11 L.Ed. 576, and the whole unfolding of administrative law during the hundred years since that decision. This is not one of those exceptional cases where 'the sanction afforded by judicial proceedings' is implied in the guaranty of due process of law. Ng Fung Ho v. White, 259 U.S. 276, 284-285, 42 S.Ct. 492, 495, 66 L.Ed. 938. Therefore, it is as true of the Interstate Commerce Act as it is of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., that 'Congress was entitled to determine what remedy it would provide, the way that remedy should be sought, the extent to which it should be afforded, and the means by which it should be made effective.' Mr. Chief Justice Hughes, speaking for the Court in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 264, 60 S.Ct. 561, 563, 84 L.Ed. 738.

In the reticulated scheme for enforcement of the new rights and obligations created by the Interstate Commerce Act, Congress clearly indicated where the judiciary comes in and where the judiciary is to keep out. More particularly, Congress has provided in detail for judicial review in certain aspects of reparation claims that come before the Commission; it has afforded an alternative procedure as between Commission and courts in some instances; it has specifically precluded resort to judicial review where the shipper has chosen resort to the Commission. If the scheme of legislation that Congress has devised is to be respected, judicial review of the Commission's order denying it reparations is not open to the Government.

A summary of what this case involves should precede a det iled analysis of the Act, so far as relevant to its disposition.

At the time this controversy arose it had long been the practice for railroads reaching Atlantic ports to absorb the cost of wharfage and handling services furnished by them for goods destined for shipment overseas. This applied only to services rendered on so-called public wharves, excluding, that is, services so required on wharves operated by a shipper himself. The wharves in question were piers owned by the Government, but leased by it for commercial peacetime operations as public terminal facilities of the railroads. Up to June 15, 1942, these piers were operated by the Transport Trading and Terminal Corporation, as agent of the defendant railroads. War conditions made it necessary for the Government to cancel its leases with the Terminal Corporation and, on June 15, 1942, it took over the operation of these piers for the movement of military freight, almost entirely outbound. The railroads refused allowances for the cost of services which they had theretofore absorbed, and declined a later request of the Army to perform the handling services because the Army, not the railroads, controlled the piers.

Claiming to be damaged by the refusal of the railroads to grant allowances for the Government's handling of its goods on its own piers, when it excluded the Terminal Corporation and took over the piers, the Government initiated these proceedings before the Commission for reparations under § 8 of the Interstate Commerce Act. ^[3] It filed its complaint under §§ 9 and 13 of that Act. ^[4] Claiming that the rates under the existing tariffs were unjust and unreasonable, and that it was discriminated against because other shippers were furnished wharfage and handling services which it performed at its own expense, the Government sought relief against continuance of alleged violations of §§ 1(5)(a), 1(6), and 15(13) of the Interstate Commerce Act. The complaint was sustained by Division 2, with one Commissioner dissenting. United States v. Aberdeen & Rockfish R. Co., 263 I.C.C. 303. The full Commission reversed the findings of Division 2 and ordered the complaint dismissed, four Commissioners dissenting. 264 I.C.C. 683. On reargument the full Commission adhered to its findings, five Commissioners dissenting. ^[5] 269 I.C.C. 141. At the time of its final report, it was assumed that the operation of the piers reverted to the situation existing prior to June 15, 1942, so that the purpose of the proceeding before the Commission was deemed to be for reparations only. 269 I.C.C. at 147.

Invoking the procedure of the Urgent Deficiencies Act of 1913, the Government then sought to set aside the order of the Commission dismissing the Government's complaint. Act of October 22, 1913, 38 Stat. 219-221, now 28 U.S.C. §§ 1253, 1336, 2101, 2284, 2321-2325, (1948 ed.), 28 U.S.C.A. §§ 1253, 1336, 2101, 2284, 2321-2325. A duly constituted district court, with three judges sitting, found itself without jurisdiction to review the Commission's order. 78 F.Supp. 580. This judgment should be affirmed, insofar as it held that an order of the Commission denying damages by way of reparations in proceedings brought before the Commission is not reviewable in the courts.

To ascertain whether an order of the Interstate Commerce Commission is open to judicial review, it should rigorously be borne in mind that jurisdiction to review such an order must have been conferred by Congress. To assume that an order of the Commission for which reviewing power is not conferred, is presumably reviewable by the courts is to start with the answer of the problem to be solved. Unless Congress has chosen to give the courts oversight of a determination by the Commission, the courts have not the power of oversight where, as here, the Constitution does not require it. If Congress has made no grant of power to courts to review the Commission's order denying a claim for reparation, and, in fact, has explicitly withheld resort to the courts after such denial by the Commission, it is wholly immaterial that as to other types of orders the right to review has been given to the courts, or that a determination by the Commission closely related to reparations, but not in fact a claim for damages, does not bar access to the courts.

When dealing with the Interstate Commerce Act we are dealing not with an episodic bit of legislation to which the general jurisdiction of the federal courts presumably applies. We are dealing with the oldest regulatory scheme which, by successive amendments and enlargements, established a comprehensive, self-contained regime both of administration and adjudication. The scheme as a whole ought not to be dislocated to meet the exigencies of a particular situation.

First. Judicial review of an order by the Commission dismissing a complaint for reparations has heretofore been urged exclusively on the basis of the Urgent Deficiencies Act. The jurisdiction of the district court in this case was invoked under that Act. This is the sole basis of jurisdiction urged by the Government here in its comprehensive brief and argument, and the Court rejects it. It rightly rejects it. But the compelling considerations for this rejection demand a further analysis of the structure and details of the jurisdictional provisions relating to orders of the Interstate Commerce Commission. Such analysis is essential to lay bare the equally compelling considerations against jurisdiction under the general equity powers of the district courts.

Section 8 of the Interstate Commerce Act created a civil liability of carriers for damages caused by violation of the new obligations imposed by that Act. In the absence of specific remedies, it would be fair to assume that these new rights were enforceable in the district courts under their general jurisdiction over suits 'arising under any Act of Congress regulating commerce.' 28 U.S.C. § 1337 (1948 ed.), 28 U.S.C.A. § 1337. But the Interstate Commerce Act did not stop with a mere declaration of liability. It defined a specific course of procedure; it particularized the remedies available to those to whom new rights were given and the way in which they were to be pursued. 'In such a case the specification of one remedy normally excludes another.' Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61. For charging more than the tariff rate or charging a discriminatory rate, the Act provides alternative procedures set forth in detail in § 9. These are the relevant provisions: 'any person or persons claiming to be damaged by any common carrier * * * may either make complaint to the commission as hereinafter provided for, or may bring suit * * * 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.' 24 Stat. 379, 382, as amended, 49 U.S.C. § 9, 49 U.S.C.A. § 9. With qualifications shortly to be noted, a suit begun in the district court follows the course of any other action there. On the other hand, if the shipper prefers to pursue the alternative course-the administrative route-to obtain damages for a violation of the Act, he files his complaint with the Commission.

As to a proceeding before the Commission, whether for damages or for a rate adjustment, § 13 defines the procedure; ^[6] the role of the courts in relation to the Commission's orders is defined by §§ 16 ^[7] and 17(9). ^[8] Section 16 fixes the time for filing a complaint either in the courts or before the Commission; it also provides for the enforcement of an order awarding damages, limiting the time within which such an action must be brought, and stating the effect to be given to the Commission's award. Since 1940, the provisions of the Urgent Deficiencies Act of 1913, 38 Stat. 219 221, conferring on the district courts the jurisdiction in suits on orders of the Commission theretofore vested in the abolished Commerce Court, were incorporated in § 17(9). A few years previous the procedural provisions of the Urgent Deficiencies Act of 1913 became part of Title 28 of the United States Code.

By this scheme of law enforcement, carefully apportioned between Commission and courts, Congress has provided that insofar as any order, provided it is not one for money damages, can be enjoined, set aside and enforced it must be under the provisions dealing with suits to enforce, enjoin, or set aside orders of the Commission, 'but not otherwise.' 54 Stat. 916, 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9). By this limitation Congress has made it as clear as language can that if an order is not within § 16, because not one for money damages, if review is available, it must be under § 17. If the Commission action does not fall within § 16 or § 17, it is not reviewable at all. Orders under § 17 are reviewable only as provided for in the Urgent Deficiencies Act. But the Urgent Deficiencies Act furnishes only procedural details; it merely defines the method of review and not the kinds of cases for which review is available. It did not make reviewable actions previously unreviewable. 50 Cong.Rec. 4536, 4542. Cf. Standard Oil Co. v. United States, 283 U.S. 235, 241, 51 S.Ct. 429, 431, 75 L.Ed. 999; United States v. Jones, 336 U.S. 641, 647-648, 69 S.Ct. 787, 791. It is the body of law constituting the Interstate Commerce Act which determines whether and under what circumstances review may be had. A long course of judicial application in a field of law, fairly to be called technical, has gradually ascertained from the context of the comprehensive scheme of legislation the kind and the characteristics of orders that are reviewable.

If the dismissal of a reparation complaint is not within the phrase 'any order' in § 17(9) of the Interstate Commerce Act, it is also not with the 'any order' phrase of the sections of Title 28, § 41(28) and § 46 of the 1940 ed., and §§ 1336 and 2324 of the present Title 28 (1948 ed.), which embody the review provisions formerly in the Urgent Deficiencies Act of 1913, which provisions in turn were taken from the Commerce Court Act. 36 Stat. 539. Although § 2321 of Title 28 of the Revised Code requires that 'any order' of the Interstate Commerce Commission other than one 'for the payment of money' should be reviewed according to the procedure under the provisions providing for a three-judge court, it is clear that 'there are many orders of the Commission which are not judicially reviewable under the provisions now incorporated in the Urgent Deficiencies Act.' United States v. Los Angeles & S.L.R. Co. 273 U.S. 299, 309, 47 S.Ct. 413, 414, 71 L.Ed. 651.

In the Los Angeles & S.L.R. Co. case it was held that the district court had no jurisdiction to review a final valuation order-neither by virtue of the Urgent Deficiencies Act, nor under its general equity powers. This result was reached partly because of want of equity, but also because it was found, upon full consideration, that not every order of the Commission is 'any o der' within the jurisdictional authorization of the Interstate Commerce Act and the applicable provisions of the Urgent Deficiencies Act. So, also, an order refusing to increase the allowance for railroad mail compensation is not reviewable under the Urgent Deficiencies Act. United States v. Griffin, 303 U.S. 226, 58 S.Ct. 601, 82 L.Ed. 764, see also Great Northern R. Co. v. United States, 277 U.S. 172, 48 S.Ct. 466, 72 L.Ed. 838. The ground given in the Griffin case was that, although there was a case or controversy and final action, this type of order was not within the Urgent Deficiencies Act-and this, as we reaffirmed the other day, quite apart from the obsolete 'negative order' doctrine. United States v. Jones, 336 U.S. 641, 647, 69 S.Ct. 787, 791. Finally-and it ought to be decisive-on four occasions this Court has held that the Commission's refusal to award reparations, when the shipper, as here, proceeded under § 13 of the Act, is not reviewable. Standard Oil Co. v. United States, 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999; Brady v. I.C.C., D.C., 43 F.2d 847, affirmed per curiam after argument, Brady v. United States, 283 U.S. 804, 51 S.Ct. 559, 75 L.Ed. 1424; Allison & Co. v. United States, D.C., 12 F.Supp. 862, affirmed per curiam, 296 U.S. 546, 56 S.Ct. 175, 80 L.Ed. 387; Ashland Coal & Ice Co. v. United States, D.C., 61 F.Supp. 708, affirmed per curiam, 325 U.S. 840, 65 S.Ct. 1573, 89 L.Ed. 1966. These decisions were based upon the fact that the Interstate Commerce Act precludes review by the courts when the shipper had first sought damages before the Commission.

The extraordinary consequences of jurisdiction under the Urgent Deficiencies Act-direct appeal to this Court, a district court of three judges, precedence over other cases on both trial and appeal-were to come into play in strictly limited situations. These can be fairly summarized as covering only the kinds of administrative orders which generally are 'of public importance because of the widespread effect of the decisions' rendered by the Commission. United States v. Griffin, supra, 303 U.S. at page 233, 58 S.Ct. at page 604, 82 L.Ed. 764. The reparation orders here involved, as is true of all reparation orders, since the shipper much show actual damages, concern only the shipper and the common carrier which charged the rate. An underlying legal issue which may be of wider public importance can, of course, be adjudicated in a way which permits judicial review. Thus, an order dealing with future rates is reviewable under the provisions for a three-judge court.

But there is another reason why reparation orders are not reviewable under the three-judge court provisions. Section 17, incorporating the Urgent Deficiencies' mode of review, is not concerned with reparation claims but with a wholly different matter. Reparation claims have been specifically dealt with in other sections of the Act, and, to the extent that review was intended, it is specifically provided for. By the original Act, orders for the payment of money were enforceable in equity. Interstate Commerce Act of 1887, § 16, 24 Stat. 379, 384-385. On the suggestion that this was a denial of the common carrier's right to trial by jury guaranteed by the Seventh Amendment, see 19 Cong.Rec. 5149-50, Congress promptly provided that a successful shipper before the Commission had to sue at law on his award. 25 Stat. 855, 859-860, as amended, 49 U.S.C. § 16(2), 49 U.S.C.A. § 16(2). But there was no occasion for court review of a rate order because the original Interstate Commerce Act, while giving the shipper a right to damage for past violations, did not give the Commission rate-making authority. Interstate Commerce Commission v. Cincinnati, N.O. & T. Pac. R. Co., 167 U.S. 479, 17 S.Ct. 896, 42 L.Ed. 243. The rate-making power was first conferred by the Hepburn Act of 1906. 34 Stat. 584, 586-587. For the review of such rate orders Congress enacted what is now § 17(9). Then, for the first time, the courts were given jurisdicti n over a suit 'to enjoin, set aside, annual, or suspend any order or requirement of the Commission,' and 'jurisdiction to hear and determine such suits' (was thereby) vested in the circuit court of the district in which the common carrier was located. 34 Stat. 592; see H.R. Rep. No. 591, 59th Cong., 1st Sess. 4-5(1906); H.R. Rep. No. 4093, 58th Cong., 3d Sess. 2, 5(1905); United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 309, 47 S.Ct. 413, 414, 71 L.Ed. 651.

In 1910, this identical jurisdiction was transferred from the circuit courts and conferred upon the newly created Commerce Court, but it was expressly provided: 'Nothing contained in this Act shall be construed as enlarging the jurisdiction now possessed by the circuit courts of the United States * * *.' 36 Stat. 539. This provision was inserted in the legislation so 'that the creation of this court shall not be construed as giving to the Commerce Court any greater jurisdiction than is now possessed by the circuit courts of the United States over similar matters.' H.R. Rep. No. 923, 61st Cong., 2d Sess. 7(1910); see S. Rep. No. 355, 61st Cong., 2d Sess. 4, Pt. 2, 4-5(1910); see S. Doc. No. 606, Vov. 54, 61st Cong., 2d Sess. 2(1910). By this legislation of 1910, Congress merely provided for a shift of jurisdiction, from the old circuit courts to the new centralized Commerce Court, and not an enlargement of jurisdiction. When in 1913 the Commerce Court was abolished the same jurisdiction was revested in the district courts, the circuit courts having been abolished in the meantime: '(the jurisdiction) vested in said Commerce Court * * * (was) transferred to and vested in the several district courts of the United States.' 38 Stat. 219. Indisputably Congress did not make reviewable orders which could not have been reviewed by the Commerce Court. ^[9]

Therefore, even putting to one side § 9, the dismissal of the reparation complaint was clearly not within the words 'any order' in § 17(9): (1) if it were within § 17(9) it would be reviewable only by a three-judge court, but that reviewing device is not applicable to reparation claims; (2) reparation claims are not within § 17(9) because they have been treated by a different scheme throughout the history of the Act. If review is to be found within the Act, it must be because of provisions other than those in § 17(9).

Second. The only other provision in the Interstate Commerce Act which affords judicial review of an order is § 16. That section, however, comes into force only when an award for damages is made. Rejection by the Commission of a money claim is outside the express terms of that section and not within what can fairly be implied from any language in it. A general argument of fairness is made that since this section provides for court review when an award is made where the carrier loses, the shipper is entitled to review when the carrier wins. Leaving aside, temporarily, the fact that what Congress has written in § 9 forecloses court review, to yield to such an inference in favor of a shipper whose claim is denied raises insuperable difficulties once we leave the text and scheme of the Act and go at large as to court review. Thus there would be no limit on the time in which review of the Commission's dismissal of the reparation claim could be brought, whereas § 16 fixes a time limit for suits against the carrier on awards by the Commission. 43 Stat. 633, as amended, 49 U.S.C. § 16(3)(f), 49 U.S.C.A. § 16(3)(f). This is just one of the obstructions if we are to imply court review of orders disallowing reparation claims because Congress has seen fit to allow suits on orders granting an award. In other respects the Court would have to legislate for Congress. What effect is to be given to the Commission's finding? If the shipper receives an award of damages and sues the carrier thereon, § 16(2) provides that the Commission's findings are prima facie evidence. 41 Stat. 491, as amended, 49 U.S.C. § 16(2), 49 U.S.C.A. § 16(2). Are we to create the same rule judicially, though Congress has not done so, when the shipper fails before the Commission? May the shipper introduce new evidence in the district court? When the shipper sues the common carrier, the Commission's action in making an award 'cuts off no defense, interposes no obstacles to a full contestation of all the issues, and takes no question of fact from either court or jury. Meeker & Co. v. Lehigh Valley R. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644, Ann.Cas. 1916B , 691. But if the unsuccessful shipper can save up evidence until he gets in court, the advantages of a Commission hearing are destroyed. What will be the scope of the Court's jurisdiction? Would the district court determine only liability, or also the amount to be recovered, or only that the Commission acted without justification in fact or contrary to law? The answer to none of these questions can be found in § 16. Yet, one would suppose, if review in this situation is to be derived from § 16, some guides for its exercise should also be found in that section, considering the particularities with which it defines review in the instances authorizing court action. Therefore, this Court has held: 'Section 16(2) does not permit suit in the absence of an award, and, if the Commission denies him relief, a claimant is remediless.' Baltimore & Ohio R. Co. v. Brady, 288 U.S. 448, 458, 53 S.Ct. 441, 443, 77 L.Ed. 888.

Money damages are part of the regulatory scheme. Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 258, 33 S.Ct. 916, 921, 57 L.Ed. 1472. But while the Commission may determine that rates for the future be reduced, it is not required to award damages for the higher rates in the past. Thus it is not at all strange that its action be not subject to court review where the shipper has failed to persuade the Commission to award damages. Baltimore & Ohio R. Co. v. Brady, 288 U.S. 448, 458, 53 S.Ct. 441, 443, 77 L.Ed. 888. Especially is this true when Congress has provided for an alternative procedure whereby the shipper would have been able to go to court. Therefore, even without any explicit provision it would be a reasonable inference that Congress did not intend to grant a review where the shipper has decided to seek his damages before the Commission.

Even though Congress provided alternate methods of securing damages, and authorized court review when the Commission sustained a money claim, but not when it denied such a claim, Congress did not leave merely to rational inference that upon denial of a money award by the Commission, the shipper could not again try his luck in court. By § 9 Congress gave the shipper his choice of forum: he cou d ask for damages either from the Commission or a court, but could 'not have the right to pursue both of said remedies'; he 'must in each case elect which one of the two methods of procedure herein provided for he * * * will adopt.' 24 Stat. 382, as amended, 49 U.S.C. § 9, 49 U.S.C.A. § 9. If the shipper asks the Commission to award him damages and it goes against him, Congress has barred review of the denial or revision of the amount of the award. Baltimore & O.R. Co. v. Brady, 288 U.S. 448, 458-459, 53 S.Ct. 441, 443, 77 L.Ed. 888. Since Congress gave the shipper the alternative of administrative or judicial relief, there can be no question but that Congress was constitutionally free to make final the administrative choice.

Third. Since access to court review of an order denying reparations was barred by the Interstate Commerce Act, such review is not available under the general jurisdiction of the district courts. 28 U.S.C. § 1337 (1948 ed.), 28 U.S.C.A. § 1337. It has never been suggested, during some sixty years of active litigation over this problem, that for review of such an order resort may be had to a court of equity outside the framework of the Interstate Commerce Act. Even the Government does not now suggest it, and naturally so. Due regard for the explicit provisions of the Act precludes it. And for these reasons:

(1) The specific terms of § 17(9) which alone give reviewing power to the courts, save in cases where the carrier has been held to owe money, do so 'under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.' 54 Stat. 916, 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9). It is obvious that review would be 'otherwise' if the unsuccessful shipper be permitted to bring an action under 28 U.S.C. § 1337 (1948 ed.), 28 U.S.C.A. § 1337. This reason exists independently of the fact that § 9 also prohibits court action after an attempt to recover damages is made before the Commission. It is also independent of the fact that provisions of Title 28 do not make reviewable orders for which the Interstate Commerce Act does not provide review.

(2) Because of these provisions, review of reparation claims differs from the situation in Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111. There the Court was not confronted with an enactment which said that if a person sought the Commission's aid he could not thereafter go to court. The Shields case is inapposite on another ground. By determining that a certain railroad was subject to the Interstate Commerce Act, the Commission placed the railroad under the active hazards of criminal sanctions. Equity was invoked for one of its ancient functions of staying a multiplicity of criminal prosecutions to avoid irreparable harm. See 305 U.S. at page 183, 59 S.Ct. at page 163, and Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 306, 64 S.Ct. 95, 99, 88 L.Ed. 61. Here there is not the remotest ground for appeal to equity. It is merely a matter of dollars and cents-not the hazards of criminal prosecution-and an insistence on having two modes of recovering money damages when Congress has given shippers the choice of one or the other. There is a total absence of any of the traditional grounds for equitable relief. Cf. United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 314-315, 47 S.Ct. 413, 416, 71 L.Ed. 651.

Nor is review permitted under § 1336 of Title 28 (1948 ed.), if it is determined that the type of order involved is not of the nature calling for a three-judge court. The Government relied on the special scheme of the Urgent Deficiencies Act as incorporated in the Interstate Commerce Act conferring jurisdiction to review orders of the Commission. This scheme requires review by a three-judge court. The court rejects that claim on the ground that a reparation order is not the type of order so reviewable. Instead the Court finds jurisdiction in the distric court to entertain a petition to review an order of the Commission denying reparation in § 41(28) of Title 28 (1940 ed.), now § 1336 of Title 28 (1948 ed.). But jurisdiction under § 41(28) carries also the requirement of a three-judge court. See §§ 41-47, now c. 157 of Title 28 of the 1948 Code. No jurisdiction can be derived from § 41(28) of Title 28 unless the order is of the type that is reviewable by a three-judge court. To reject the latter is necessarily to hold that no jurisdiction of the district court is derivable from § 41(28) of Title 28, now § 1336 of Title 28 (1948 ed.). ^[10]

Moreover, a suit filed under the jurisdiction of § 41(28) of Title 28 is one against the United States with the Interstate Commerce Commission as a party only if it chooses to intervene. 28 U.S.C. §§ 2322, 2323 (1948 ed.), 28 U.S.C.A. §§ 2322, 2323. Congressional consent is required to authorize such a suit and congressional consent has been authorized only under the conditions requisite for a three-judge court proceeding for which this Court finds no jurisdiction, 28 U.S.C. §§ 2321-2325 (1948 ed.), 28 U.S.C.A. §§ 2321-2325. On the basis of the result in this case the decision in the Great Lakes Steel case, 337 U.S. 952, 69 S.Ct. 1530, must of course be reversed. And so this Court would direct the allowance of a suit against the United States, although Congress has not given consent thereto. The only possible escape from this conclusion is that jurisdiction is to be denied when a private shipper seeks to go into court after the Commission has dismissed his complaint for damages, as in the Great Lakes Steel case, but jurisdiction somehow or other should be acknowledged when the Government is the shipper. The defense of sovereign immunity, moreover, cannot be avoided by directing that the suit proceed only against the Interstate Commerce Commission. There is no claim that the Commission acted unconstitutionally, or that it proceeded under an unconstitutional statute, or that it acted beyond the authority conferred by a valid statute. It merely acted within the scope of its authority and made a determination, as it was legally bound to do, based upon the law and the facts. The difficulty of sovereign immunity forcibly demonstrates again why a method or court review cannot be found outside the provisions of the Interstate Commerce Act.

Fourth. We now turn to § 9. The language leaves no room for doubt. But it is now urged (though the Government has not so argued in the four decisions that went against private shippers) that where the damage claim was based on other than a mere arithmetical overcharge, the election afforded by § 9 is illusory. This is so, it is argued, because when complaint is made that rates were unfair, prejudicial or unreasonable, the doctrine of Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075 is brought into operation. It is said that the Government never had an opportunity to go into court until the Commission dismissed its complaint. Sufficient respect is given to § 9, so the argument runs, by reading it to bar 'initiating' another action in the court after it has failed before the Commission, not to reviewing the Commission's action. So to argue is to rewrite what Congress has written. Congress did not bar 'initiating'; it barred 'the right to pursue.' The Court concedes that § 9 is a bar when a shipper could have gone in the first instance to the courts. This was so ruled in Baltimore & O.R. Co. v. Brady, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888. But what language affords a basis for a distinction when a determination of a transportation issue must be made by the Commission before the case can proceed to judgment? Moreover, the result of the Court's decision is to make the Commission's decision final in those instances where the Commission is acting purely judicially-merely a matter of applying the law to the facts-but not final when the Commission, acting in the realm of its administrative expertness, found a practice legal, and therefore denied damages. Adjudication and settled practice before the Commission likewise disprove this discovery that the choice given by Congress in § 9 is a sham.

The Commission must often pass on the legality of a particular practice of a carrier; such proceedings may serve as the basis for reparations. Under Part I of the Transportation Act, relating to rail-carriers, the shipper may ask the Commission for a declaration that a practice has been illegal and base a claim of damages on such illegality under § 8 of the Act. His other course is to secure a Commission determination only as to the illegality of the practice and not ask for an award, reserving the claim of damages for court action. This may be done in one of two ways. He may begin by filing his suit in court and ask the court to hold the case until he has obtained an administrative determination from the Commission. ^[11] There is no jurisdictional bar to such a procedure. In Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, the Court said the case should be dismissed, but preoccupation was with the necessity for prior administrative determination, not with whether there was jurisdiction in the sense of power to hold the case until there had been a Commission determination. Cases-decided after the Abilene case-have clearly recognized that there is jurisdiction to hold the case, and this procedure has been suggested in a number of them. ^[12] Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 267, 33 S.Ct. 916, 924, 57 L.Ed. 1472; Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U.S. 304, 314-315, 33 S.Ct. 938, 941, 57 L.Ed. 1494, see Smith v. Hoboken R. Co., 328 U.S. 123, 133, 66 S.Ct. 947, 953, 90 L.Ed. 1123, 168 A.L.R. 497; Thompson v. Texas, Mexican R. Co., 328 U.S. 134, 151, 66 S.Ct. 937, 947, 90 L.Ed. 1132, see also Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 343.

The other method open to a shipper who desires to avail himself of the court remedy given by § 9 is to initiate proceedings before the Commission and to ask merely for a declaration regarding the legality of a past practice, but not for damages. This course is manifested by the complaints before the Commission, asking merely for a declaration without any ad damnum. For the period between July, 1947, and February, 1949, 46 such cases were filed under Part I of the Act. Under Part II, 22 complaints have been filed since January 1, 1948, requesting such a declaration as to the legality of a practice. ^[13]

The Government thus had a real choice. Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 507-8, 56 S.Ct. 546, 548 549, 80 L.Ed. 827. But, having first sought the advantages of a Commission award, it foreclosed itself from pursuing a judicial remedy when its expectations failed. A double remedy which Congress denied this Court ought not to grant. The Government 'had a choice * * * between a remedy at the hands of the Commission and a remedy by suit, but by express provision of the statute it could not have been both.' Terminal Warehouse Co. v. Pennsylvania R. Co., supra, 297 U.S. at page 508, 56 S.Ct. at page 549.

The conclusion reached by a reading of the statute is reenforced by the adjudicated cases. In Standard Oil Co. v. United States, 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999, three distinct grounds were given for affirming the district court's dismissal for want of jurisdiction of a suit to review an order of the Commission dismissing a claim for damages. One reason was that the order was 'a negative order'; that reason has been displaced by Rochester Telephone Co. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. But the Standard Oil decision was left intact by the Rochester decision, for the opinion in that case explicitly pointed out that 'the main basis' of the Standard Oil decision 'was not the 'negative order' doctrine but (that) the statutory scheme dealing with reparations' precluded review of an order denying money damages. 307 U.S. at page 140, n. 23, 59 S.Ct. at page 762. The 'statutory scheme' was thus defined in the Standard Oil case: 'Having elected to proceed and having proceeded to a determination before the Commission, appellant was, by force of this provision (§ 9), precluded from seeking reparation upon the same claims by the alternative method of procedure.' 283 U.S. at page 241, 51 S.Ct. at page 431, 75 L.Ed. 999; see also Mr. Justice Cardozo for the Court in Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 507-508, 56 S.Ct. 546, 548-549, 80 L.Ed. 827. The Standard Oil Company as a shipper was precisely in the same situation as the United States, in this case; the United States pursued the same course in this case as did the Standard Oil Company. The Standard Oil Company was not 'initiating' an action in the district court but was seeking judicial review of the Commission's action, and this is precisely what the United States is doing in this case. The only difference between the Standard Oil case and this case is that in the earlier case the Standard Oil Company was the plaintiff, and in this case it is the Government. What the Court said in the Standard Oil case is equally applicable here. 'It is of no importance that the adjudication sought is to take the form of a direction to the Commission to grant the prayer of the complaints filed before that body, etc., instead of a plenary judgment to the same end, for the prayer in that form is nothing less than an attempt to avoid the statute by indirection.' 283 U.S. at page 241, 51 S.Ct. at page 431, 75 L.Ed. 999.

In view of the fact that the Rochester case expressly saved that phase of the Standard Oil decision which is decisive of the problem before us now-'the statutory scheme dealing with reparations'-the Court's holding that the Rochester case impliedly overruled the Standard Oil case means of course that to this extent the Court today overrules the Rochester case, not that the Rochester case had overruled the Standard Oil case, wholly apart from the fact that the Standard Oil decision was the basis of a decision long after the Rochester case. ^[14] Ashland Coal & Ice Co. v. United States, 325 U.S. 840, 65 S.Ct. 1573, 89 L.Ed. 1966.

And to what end these dislocations of so many decisions? We have been vouchsafed no considerations of policy, no revealed injustice flowing from the construction thus far placed upon the reparations provision of the Interstate Commerce Act, no difficulties in their administration, no disclosure of new materials for the proper construction of an old statute. And the current of settled judicial construction as well as administrative practice is now reversed against the vigorous protest of the agency charged with the administration of the law although only a week ago we greatly relied on administrative practice as the basis of judicial interpretation.

The result reached in the Standard Oil case was not limited to controversies which did not involve the primary jurisdiction doctrine. The district court in that case did assume arguendo that the issue involved nothing which required administrative determination before it addressed itself to the basic jurisdictional question. See Standard Oil Co. v. United States, D.C., 41 F.2d 836. On appeal, however, this Court did not confine in any way the bar imposed by § 9 to resort to a district court after an unsuccessful resort to the Commission for reparations. It read § 9 as it was written, as a provision for a choice of tribunals so that, if damages are sought from the Commission and denied by it, the courts are closed to a further consideration of such a claim.

The suggestion at this late date that the election so specifically defined by § 9 applies only to those instances in which no need for Commission determination of transportation issues may be required is completely dispelled by Brady v. United States, 283 U.S. 804, 51 S.Ct. 559, 75 L.Ed. 1424. In the Brady case damages were based on the claim that the carrier's practices were unjust, unreasonable and unduly prejudicial-the exact grounds urged in this case. The Commission refused to award reparations in the amount claimed by Brady and the shipper brought precisely the same kind of suit that the United States as shipper brought here. Brady argued that since the controversy was within the Commission's so-called primary jurisdiction, he never had the choice of proceeding in court rather than going to the Commission. The district court dismissed his suit for want of jurisdiction to review the action of the Commission and this Court sustained that denial of jurisdiction. It did so on the basis of the Standard Oil decision which had been rendered a month before, for the Standard Oil case, as did the Brady case, and as does this case, involved questions which, as such, required preliminary Commission determination.

The scope of the Standard Oil and Brady cases is made unambiguously clear by reliance on them for the decision in Allison & Co. v. United States, 296 U.S. 546, 56 S.Ct. 175, 80 L.Ed. 387; Id., 296 U.S. 664, 56 S.Ct. 307, 80 L.Ed. 474, and Ashland Coal & Ice Co. v. United States, 325 U.S. 840, 65 S.Ct. 1573, 89 L.Ed. 1966. In each case issues were involved which indubitably fell under the requirement of the 'primary-jurisdiction' doctrine. In each of these cases the shipper relied on the claim that their cases were distinguishable from the Standard Oil and the Brady cases. The same distinctions which are now advanced by the Government were then advanced by the shipper but resisted by the Government. The Government then rightly insisted that the Standard Oil and the Brady cases could not be restricted to situations where the 'primary jurisdiction' doctrine was inoperative and that the decision in those cases-that § 9 is unqualified in precluding resort to judicial review in all cases where damages had first been denied by the Commission-was compelled by a proper construction of § 9. This position of the Gover ment was considered so incontestable that the Court deemed oral argument needless and granted the Government's motion to affirm. The Government's interest has changed, but not the force of its position when it was without self-interest.

I would affirm.

Notes

1. Compare Brief for United States and Interstate Commerce Commission, pp. 7-22, Great Lakes Steel Corp. v. United States, D.C., 81 F.Supp. 450, with Brief for United States, pp. 14-39, United States v. Interstate Commerce Commission, D.C., 78 F.Supp. 580. Since the argument of this case the Great Lakes Steel case has been brought here on appeal, No. 749, this Term, and the Government has acknowledged the conflict. See Motion to Defer Consideration of the Statement of Jurisdiction, Great Lakes Steel Corp. v. United States, No. 749, this Term, 337 U.S. 952, 69 S.Ct. 1530.
2. 54 Stat. 899, 49 U.S.C. § 1 et seq., 49 U.S.C.A. § 1 et seq.
3. 24 Stat. 382, as amended, 49 U.S.C. § 8, 49 U.S.C.A. § 8.
4. 24 Stat. 382, as amended, 49 U.S.C. § 9, 49 U.S.C.A. § 9, 24 Stat 383, as amended, 49 U.S.C. § 13, 49 U.S.C.A. § 13.
5. It held that the rates for export tariff applied only when the wharves were public, which these wharves were not. The Commission also pointed out that the railroads had made other concessions to the Government; that the rates charged, together with a reasonable allowance for the services not provided, were still below the upper limits of reasonableness; that the wharfage charges had been absorbed because of competitive conditions. 264 I.C.C. 683, 269 I.C.C. 141.
6. 24 Stat. 383, as amended, 49 U.S.C. § 13, 49 U.S.C.A. § 13.
7. 24 Stat. 384, as amended, 49 U.S.C. § 16, 49 U.S.C.A. § 16.
8. 54 Stat. 916, 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9).
9. There was no Committee Report on this legislation; it was added to an appropriation bill. See 50 Cong.Rec. 4527-8. Mr. Fitzgerald, the sponsor of the amendment, said that its sole purpose was to abolish the Commerce Court and make provision for the litigation over which that court had jurisdiction. 'It does not give any new right to any party.' 50 Cong.Rec. 4532, 4536, 4542. There was an attempt to enlarge the review provision so as to give shippers review where previously it did not exist, but this amendment was defeated after debate. 50 Cong.Rec. 4532, 4543 44. It was said: 'The legislation contained in this bill simply abolishes a court that ought never to have been created and vests the jurisdiction which it now exercises in the district courts of the United States. That is all of it, and that is all there ought to be of it. There ought not to be any attempt to enact substantive law in this bill. There ought not to be any attempt to have an increase or decrease of the powers of the commission, and there ought not to be any attempt to increase or decrase the jurisdiction of the district courts over that of the Commerce Court. The only reason why the district courts are designated instead of the circuit courts is that the circuit courts have been abolished since the Commerce Court was created.' 50 Cong.Rec. 4536.
10. In United States v. Griffin, 303 U.S. 226, 58 S.Ct. 601, 82 L.Ed. 764, it was held that because the type of order there involved was not the type reviewable by a three-judge court, the phrase the 'district courts shall have jurisdiction 'of cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission," did not confer jurisdiction on the district court. 303 U.S. at page 228, 58 S.Ct. at page 602. The quoted words are the provision in the Urgent Deficiencies Act and are precisely the same provision that was carried over to § 41(28). When we had this general problem here the other day in United States v. Jones, 336 U.S. 641, 69 S.Ct. 787, it was not suggested that there was jurisdiction to review an order of the Commission under § 41(28), now § 1336 of Title 28 (1948). Instead, the Court agreed with the Griffin case that the order there involved was not of a type calling for a three-judge court and therefore that the jurisdictional provisions of § 41(28), now § 1336, of Title 28 (1948 ed.), were not applicable. The Court significantly referred to the provisions of § 41(6), now § 1339 of Title 28 (1948 ed.), the section giving general jurisdiction over suits arising under the postal laws, as the only possible source of jurisdiction. In the context of this case the comparable provision is § 41(8), now § 1337 (1948 ed.). The only reason why the Court now seeks to warp the whole structure of Title 28 rather than to rely on the only section which conceivably gives jurisdiction to a one-judge court is in order to escape the embarrassing fact that such a suit would be squarely in the face of § 9 of the Interstate Commerce Act. Of course even the procedure adopted is in the face of § 9 of the Interstate Commerce Act as interpreted in four previous decisions of the Court. But reliance on § 41(8), now § 1337 (1948 ed.), would at least have the virtue of only mutilating one Act-that is the Interstate Commerce Act-rather than both that Act, and § 41(28) of Title 28 (1940 ed.), now § 1336 and c. 157 of Title 28 of the 1948 edition.
11. For the period since April 28, 1948, although there have been no instances in which the shipper has asked for a determination of the legality of a practice under Part I of the Act, in a complaint which also stated that a court action was being held in abeyance, there have been thirteen instances where complaints were filed before the Commission asking only for a determination of the legality of a practice because the complainant there was the defendant in a civil action in the courts. Since January, 1948, there have been five proceedings under Part II of the Act in which the shipper first instituted suit in the courts and then asked that the suit be held in abeyance until the Commission made a determination as to the legality of a particular practice. It should be pointed out that under Part II of the Act the Commission has no power to award damages; the doctrine of primary jurisdiction, however, is nevertheless applicable. Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 342-343.
12. The El Dorado Terminal Co. litigation did not involve a claim by a shipper for recovery of an overcharge by a carrier. Therefore, the decisions in General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361, and El Dorado Oil Works v. United States, 328 U.S. 12, 66 S.Ct. 843; 90 L.Ed. 1053, did not involve the statutory scheme relating to reparations. The cases have no bearing on the problem here-namely the jurisdictional requirements of § 9 in the context of the Interstate Commerce Act. The El Dorado litigation was an ordinary action on a contract. Entangled however in the proper construction of that contract was the ascertainment of a transportation fact, which, with due regard to the Abilene doctrine, made prior determination by the Interstate Commerce Commission appropriate. To that end it was held in the first El Dorado case, that the action in the District Court should be held for such administrative determination. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361. That ruling does establish that simply because a prior determination by the Interstate Commerce Commission is required before a litigation can proceed to judgment does not deprive a district court of jurisdiction. This circumstance merely calls for the suspension of the exercise of jurisdiction until the appropriate fact is established by the Interstate Commerce Commission and then introduced in evidence in the pending court case, instead of being established independently in court, as is usually the case. 'While we rejected the Commission's contention that the District Court had no jurisdiction to hear the case, we accepted its contention that determination of the validity of the challenged past practices was for the Commission.' El Dorado Oil Works v. United States, 328 U.S. 12, 17, 66 S.Ct. 843, 846, 90 L.Ed. 1053. The order made by the Interstate Commerce Commission in response to the requirement of the first El Dorado case was not an order of dismissal in a reparation suit. Procedurally it did not make very much difference, therefore, whether this order of the Interstate Commerce Commission should have been entered in the pending litigation or was allowed to be considered in a new proceeding before the District Court. As a matter of procedural elegance it was more appropriate for it to have formed part of the then pending litigation which was suspended precisely for the purpose of obtaining such an order.
13. These figures are not given to imply that in every instance, or even in most instances, that Commission action is followed by a suit in the court for damages. Their sole purpose is to show that, by not seeking damages from the Commission, a complaint leaves himself free, under § 9, to go to the courts.
14. No decision of this Court has ever expressly or impliedly overruled the decision in Standard Oil case. Least of all can it be said that Rochester Telephone Co. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147, overruled the case for the opinion with great care stated that the Standard Oil case was not overruled in its holding that orders dismissing a claim for reparations were not reviewable because of § 9 of the Interstate Commerce Act. See 307 U.S. at page 140, n. 23, 59 S.Ct. at page 762. The Court there did only what the Court the other day did in United States v. Jones, 336 U.S. 641, 647-648, 69 S.Ct. 787, 791, that is, it decided that for reasons wholly unrelated to the 'negative order' doctrine an order of the Commission was not reviewable. If anything, the conclusion in the Standard Oil case was reinforced by the Rochester decision in that it was reaffirmed by the very decision that put the 'negative order' doctrine and decisions dealing with it under the strictest scrutiny. That examination revealed that only one case out of the whole series of cases examined was really determined by the 'negative order' doctrine. That was the only case the Court overruled. And even the concurring opinion did not say that other cases were being overruled. It objected, essentially, to their reexamination. The concurring opinion said: ,'the case presents no debatable question as to the jurisdiction of the district court. A statement of the facts alleged conclusively shows that in purpose, terms and effect the final order constitutes not mere determination or declaration but affirmative commands. There is no occasion to review earlier decisions dealing with affirmative and negative administrative orders and obviously none to overrule any of them or to repudiate or impair the doctrine they establish.' Rochester Telephone Co. v. United States, 307 U.S. 125, 146, 147-148, 59 S.Ct. 754, 765, 83 L.Ed. 1147. That the Rochester case did not overrule Standard Oil is conclusively proved by the fact that his Court relied on that case less than four years ago to affirm a judgment dismissing a petition to review an order dismissing a claim for reparation. Ashland Coal & Ice Co. v. United States, 325 U.S. 840, 65 S.Ct. 1573, 89 L.Ed. 1966.