No. 77-1602.United States Court of Appeals, Third Circuit.Argued January 12, 1978.
Decided March 16, 1978.
Page 153
Angelo C. Procopio, Procopio and Burr, Pittsburgh, Pa., for appellant.
John A. Vuono, Charles J. Streiff, Wick, Vuono and Lavelle, Pittsburgh, Pa., for appellees.
Appeal from the United States District Court for the Western District of Pennsylvania.
Before ADAMS and WEIS, Circuit Judges, and COOLAHAN, Senior District Judge.[*]
[1] OPINION OF THE COURT
COOLAHAN, Senior District Judge.
Page 154
[6] The complaint alleges that during the period from July 1974 (effective date of Ex Parte No. MC-92) until April 1975 (discontinuance date of Ex Parte No. MC-92), the defendant, pursuant to surcharge procedures established by the Interstate Commerce Commission and based upon authenticated receipts for fuel from plaintiff’s drivers, collected from its shippers a cumulative sum in the amount of $12,881.76 as reimbursement for the increased cost of fuel and placed said sum in its Contingent Reserve Fund. Hennis did not pass through the surcharge amounts to Emeryville for various reasons (these defenses are not properly the subject of this appeal). Emeryville demanded payment of this sum on various occasions. [7] Thereafter, on April 22, 1976, Emeryville filed a complaint in the District Court against Hennis and Spector to recover the fuel surcharges established by the Interstate Commerce Commission’s orders. Defendants moved for dismissal on the grounds that Ex Parte No. MC-92 was an order for the payment of money and since the complaint was not filed within one year of July 25, 1974 (the effective date of Ex Parte No. MC-92), it was barred by 49 U.S.C. § 16(3)(f), which provides:[8] The District Court ruled that Ex Parte No. MC-92 was an order for the payment of money and, since the complaint was not filed within one year of the effective date of that order, it was barred by 49 U.S.C. § 16(3)(f), hence this appeal. [9] The sole issue we must resolve is the applicability of 49 U.S.C. § 16(3)(f), which only applies if Ex Parte No. MC-92 is found to be an order for the payment of money. The United States Court of Appeals for the Seventh Circuit has recently considered the same question in the similar case of Carothers v. Western Transportation Co., 554 F.2d 799 (7th Cir. 1977), rev’g 412 F. Supp. 1158 (S.D.Ill. 1976). In Carothers, the issue was whether Special Permission No. 74-2525 was an order for the payment of money within the meaning of 49 U.S.C. § 16(3)(f).[1]“A complaint for the enforcement of an order of the commission for the payment of money shall be filed in the district court or the State court within one year from the date of the order, and not after.”
The District Court had held that the order was an order for the payment of money and, consequently, that plaintiff’s suit was barred. The Seventh Circuit, in reversing the District Court, ruled that the order was not one for the payment of money and, therefore, that the action was not barred by 49 U.S.C. § 16(3)(f).[2] The defendant has argued before this Court that the Seventh Circuit erred in its reversal in the Carothers
case. [10] Hennis claims that because Emeryville’s complaint is one for money and is based upon violations of Ex Parte No. MC-92, this order must be considered an order for the payment of money for Emeryville’s suit to make sense. Emeryville, on the other hand, maintains that an order for the payment of money must be for a sum certain or readily ascertainable. Emeryville also claims that § 16(3)(f) should be read in conjunction with 49 U.S.C. §§ 16(1) and (2).[3] Section 16(1)
Page 155
grants authority to the Interstate Commerce Commission to order the payment of damages when appropriate in connection with its power to conduct hearings to resolve complaints filed with that agency. Section 16(2) allows for judicial enforcement of such orders. Since Ex Parte No. MC-92 did not result from any such complaints or hearings,[4] plaintiff contends that Ex Parte No. MC-92 is not an order for the payment of money.
[11] Sections 16(1), 16(2), and 16(3)(f) have been read together as relating to an “order for the payment of money.” Carothers v. Western Transportation Co., supra, 554 F.2d at 802; Missouri Pacific Railroad Co. v. Austin, 292 F.2d 415 (5th Cir. 1961). Although we do not believe that an order for the payment of money within the meaning of § 16(3)(f) necessarily must have arisen directly out of a proceeding for violation initiated by a complaint, Aluminum Co. of America v. Admiral Merchants Motor Freight, Inc., 486 F.2d 717 (7th Cir.), cert. denied, 414 U.S. 1113, 94 S.Ct. 843, 38 L.Ed.2d 739 (1973); Container Corp. of America v. Admiral Merchants Motor Freight, Inc., 489 F.2d 825(7th Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1581, 39 L.Ed.2d 882 (1974), nevertheless we are in agreement with the Seventh Circuit’s ruling in the Carothers case, and adopt the reasoning set forth therein, that the ICC orders involved cannot be characterized as orders for the payment of money. [12] The relevant order in this case was prospective in effect[5]
and was more in the nature of a regulation than an order for the payment of money, which ordinarily follows after formal fact-finding procedures. The surcharges which were authorized by Ex Parte No. MC-92 were to be charged and collected after the effective date of that order. Also, the order was not for a sum certain or a sum readily calculable to be collected by the carrier. The increased costs for fuel could only be determined after the completion of each haul. Thus, the defendant’s obligations under the order were only to arise at that time. Furthermore, the order does not state when the funds involved should be transmitted to the party to be benefited if not originally collected by that party. Thus the order is unlike what is generally conceived to be an order for the payment of money. Also, because the order did not specify when payments were to be transferred by the party collecting to the party to be benefited thereby, the one-year limitation period of § 16(3)(f) cannot be said to commence from any such date set by the order for payment.[6] Missouri Pacific Railroad Co. v. Austin, supra, 292 F.2d 415. [13] It is very doubtful that Congress, in enacting § 16(3)(f), intended that it apply to an ICC order such as Ex Parte No. MC-92. If applied as the defendant contends, and as the District Court ruled, it would allow less
Page 156
than one year’s time within which to recover funds collected pursuant to that order, since the carrier’s obligations under Ex Parte No. MC-92 (or Special Permission No. 74-2525) would only arise after the effective “date of the order.” In fact, although Ex Parte No. MC-92 (or Special Permission No. 74-2525) does not contain an expiration date, the proffered use of § 16(3)(f) would, in effect, limit that order’s life to one year, since judicial enforcement would thereafter be barred. As our brothers have stated:
[14] Carothers, supra, 554 F.2d at 803. Thus, § 16(3)(f) cannot be said to apply to Ex Parte No. MC-92.[7] [15] For the foregoing reasons, we conclude that Ex Parte No. MC-92 is not an order for the payment of money and, therefore, that 49 U.S.C. § 16(3)(f) does not apply to bar plaintiff’s suit. [16] The judgment appealed from will be reversed, and the cause will be remanded for further proceedings not inconsistent with this opinion.“It seems highly illogical to conclude that Congress provided a one year period of limitation beginning the date of issuance of an order when any liability thereunder would arise only at some indefinite time in the future.”
Ҥ 16. Orders of commission and enforcement thereof Award of damages
(1) If, after hearing on a complaint made as provided in section 13 of this title, the commission shall determine that any party complainant is entitled to an award of damages under the provisions of this chapter for a violation thereof, the commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.
Proceedings in courts to enforce orders; costs; attorney’s fee
(2) If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.”
“If any carrier fails or neglects to obey any order of the commission other than for the payment of money, while the same is in effect, . . . any party injured thereby, . . . may apply to any district court of the United States of competent jurisdiction for the enforcement of such order, . . .” [Emphasis supplied.]
See Carothers, supra, 554 F.2d at 803.