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BALLENTINE PRODUCE, INC. v. UNITED STATES

September 17, 1962

BALLENTINE PRODUCE, INC., A CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS. REGULAR COMMON CARRIER CONFERENCE OF THE AMERICAN TRUCKING ASSOCIATION, INC., ET AL., INTERVENORS.



Before Johnsen, Circuit Judge, and Miller and Henley, District Judges.

The opinion of the court was delivered by: Per Curiam.

Jurisdiction of this Court is predicated upon 49 U.S.C.A. § 305(b) and 305(h); 28 U.S.C.A. § 1336, 1398, 2284, 2321-2325. The case has been heard by a district court of three judges as required by 28 U.S.C.A. § 2325.*fn1

Plaintiff, a motor carrier incorporated under the laws of Arkansas, has brought this action to enjoin enforcement of a certain order of the Interstate Commerce Commission served August 29, 1961, and allegedly implemented by Field Staff Information Bulletin No. 16 dated September 7, 1961, issued by the Bureau of Motor Carriers. Plaintiff complains that the order in question and the staff bulletin have unlawfully restricted a certificate of public convenience and necessity which plaintiff holds under the grandfather provisions of section 7(c) of the Transportation Act of 1958, 72 Stat. 573-574, which certificate on its face authorizes plaintiff to haul "frozen vegetables and frozen berries" in interstate commerce.

The order complained of denied petitions for declaratory orders and emergency relief in proceedings docketed by the Commission as MC-C-2708 and MC-C-2738, to neither of which proceedings plaintiff was a party. Simultaneously, the full Commission entered an order denying reconsideration of the decision of the Commission's Division I in a proceeding entitled Frozen Cooked Vegetables — Status, No. MC-C-2522, 81 M.C.C. 649, to which proceeding likewise plaintiff was not a party. Plaintiff does not here attack the Commission's order denying reconsideration in No. MC-C-2522, although that order is mentioned in Field Staff Information Bulletin No. 16.

Plaintiff has been hauling under his certificate certain products described as "frozen sweet potatoes," "frozen creme peas," "frozen candied yams," "frozen french fried potatoes," and "frozen sweet potato patties." It is plaintiff's position that he was lawfully hauling those products prior to, on, and after May 1, 1958, as an uncertificated motor carrier; that he was entitled under the Transportation Act of 1958 to a grandfather certificate authorizing him to continue to haul such products in interstate commerce; and that the certificate issued to him authorized such continued hauling. Plaintiff contends further that the Commission's order in No. 2708 and No. 2738 and the Field Staff Information Bulletin have operated so as to exclude the above listed products from the scope of the certificate, and that unless enforcement of the order is enjoined plaintiff will be subject to civil and penal sanctions under the Act.

The basic question which plaintiff tenders for adjudication involves a determination of the extent of section 7(c) grandfather certificates as applied to the transportation of frozen food products which were, in general, taken out of the agricultural exemption found in section 203(b)(6) of the Motor Carriers Act of 1935, 49 Stat. 545, 49 U.S.C.A. § 303(b)(6), by section 7(a) of the Transportation Act of 1958, 72 Stat. 573, 49 U.S.C.A. § 303(b)(6), as amended.

In resisting plaintiff's claim for relief, the defendants and intervenors attack the jurisdiction of the Court, contend that the order in question is not a reviewable order and that plaintiff has no standing to attack it, and assert that in any event the claim is without merit. The case has been submitted on the pleadings, documentary evidence and exhibits, oral argument, and written briefs.

From our consideration we have come to the conclusion that while in a broad sense we have jurisdiction of the subject matter of the action since it is a suit to enjoin enforcement of an order of the Commission, nevertheless, the particular order here involved is not a reviewable order, and that even if it were this Court could not at this juncture afford plaintiff any relief. It follows that the complaint should be dismissed but without prejudice to the right of plaintiff to seek relief in a direct proceeding before the Commission with the right to return to this Court should direct proceedings before the Commission turn out to be unsuccessful.

While under the statutes the federal courts have jurisdiction to review orders of the Interstate Commerce Commission, not every order issued or action taken by the Commission is subject to review. The reviewability of an order of the Commission does not depend upon the form which the order takes, whether affirmative or negative, United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451; Rochester Telephone Corporation v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. Regardless of its form, an order of the Commission is reviewable if it determines rights or obligations from which legal consequences may flow. Pennsylvania Railroad Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165; Rochester Telephone Corporation v. United States, supra. And in determining whether an order is reviewable, regard must be had to the immediate and practical impact which it will have on affected carriers and shippers. Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910. Where the practical and immediate effect of an order of the Commission is to subject a carrier to the risk of civil or criminal sanctions if he continues to operate in disregard of the order or of the determinations expressed therein, then the order is reviewable even though it is purely negative in form and even though the shipper seeking review was not a party to the agency proceedings which resulted in the order being issued. Frozen Food Express v. United States, supra.

But, where the order complained of is a mere abstract declaration, where it does not command the carrier to do or refrain from doing anything, where it neither grants nor withholds any authority, privilege, or license, where it does not extend or abridge any power or facility, where it does not subject the carrier to any liability or change its existing or future status or condition, and where it determines no right or obligation, it is not reviewable. Rochester Telephone Corporation v. United States, supra; United States v. Los Angeles R. Co., 273 U.S. 299, 309-310, 47 S.Ct. 413, 71 L.Ed. 651. Such an order may be said not to tender any justiciable controversy. Rochester Telephone Corporation v. United States, supra, 307 U.S. at 131, 59 S.Ct. at 757.

We are persuaded that plaintiff has not been adversely affected by the Commission's order in No. 2708 and No. 2738, although he may have been damaged by virtue of the decision in No. 2522 which we are not asked to review.*fn2

In No. 2522 the Commission held in substance that under the continuing substantial identity test laid down by the Supreme Court in East Texas Motor Freight Lines v. Frozen Food Express, 351 U.S. 49, 76 S.Ct. 574, 100 L.Ed. 917, certain frozen food products, including some of the products here in question, would not have been considered as exempt agricultural commodities prior to the enactment of the Transportation Act of 1958. Subsequently, certain carriers commenced the proceedings which were docketed as No. 2708 and No. 2738 for the purpose, among others, of obtaining a declaratory ruling from the Commission to the effect that grandfather certificates issued under section 7(c) of the Transportation Act of 1958 would not authorize the transportation of frozen cooked vegetables such as those which plaintiff is hauling.

In denying the relief sought in No. 2708 and No. 2738, the Commission said in part:

    "* * * there is no need for the issuance of
  either a declaratory order or an interpretative
  opinion or the action sought with respect to the
  usage of terms in certificates and permits for
  the reason that in a number of reports we have
  stated our views concerning the meaning and
  interpretation of the statutory provisions
  involved and, as stated in Frozen Cooked Food,
  MC-C-2522 (81 M.C.C. 649, 655) reconsideration
  denied herein, the opinion is ...

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