INTERSTATE COMMERCE COMMISSION, ET AL., PETITIONERS V. AMERICAN
TRUCKING ASSOCIATIONS, INC., ET AL.

   No. 82-1643

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the Interstate Commerce
Commission and the United States, petitions for a writ of certiorari
to review the decision of the United States Court of Appeals for the
Eleventh Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit

                       PARTIES TO THE PROCEEDING

   The United States was a respondent below and is a petitioner here.
Respondents here include, in addition to the American Trucking
Associations, Inc., the following original petitioners below:  Central
States Motor Freight Bureau;  Central and Southern Motor Freight
Tariff Association Inc.; Eastern Central Motor Carriers Association;
Middle Atlantic Conference;  Middle West Motor Freight Bureau;
National Motor Freight Traffic Association Inc.; New England Motor
Rate Bureau Inc.; Niagra Frontier Tariff Bureau Inc.; Pacific Inland
Tariff Bureau;  Rocky Mountain Motor Tariff Bureau Inc.; and Southern
Motor Carriers Rate Conference.  Respondents here also include the
following intervenors below:  The National Small Shipments Traffic
Conference, Inc.; the Drug and Toilet Preparation Traffic Conference,
Inc.; the National Assocation of Specialized Carriers, Inc.; Ohio
Motor Freight Tariff Committee Inc.; Household Goods Carriers Bureau
Inc.; Steel Carriers Tariff Association Inc.; Heavy & Specialized
Carriers Traffic Bureau;  Alaska Carriers Association Inc.; Bulk
Carriers Conference Inc.; and Motor Carriers Traffic Association, Inc.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-31a) is
reported at 688 F.2d 1337.  The decisions of the Interstate Commerce
Commission (App., infra, 32a-72a, 73a-84a, 85a-91a) are reported at 45
Fed. Reg. 55734, 46 Fed. Reg. 30092, and 364 I.C.C. 921.

                             JURISDICTION

   The judgment of the court of appeals (App., infra 92a-93a) was
entered on October 12, 1982.  A petition for rehearing was denied on
January 7, 1983 (App., infra, 94a-95a).  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   Pertinent provisions of the Motor Carrier Act of 1980, 49 U.S.C.
(Supp. IV) 10706, 10762, 11701, and 11705, are set forth at App.,
infra, 96a-100a.

                          QUESTIONS PRESENTED

   Whether the Interstate Commerce Commission has the authority, in
cases where a tariff is filed and becomes effective, but is thereafter
found to have violated an approved motor carrier rate bureau
agreement, to invalidate the filing upon discovery of the violation
and thereby render the unlawful tariff void ab initio.

                               STATEMENT

   1. Under the Interstate Commerce Act, 49 U.S.C. (& Supp. IV) 1 et
seq., carriers establish and change their rates for transportation
services by filing rate schedules, known as tariffs, with the
Interstate Commerce Commission.  A tariff filed with the Commission
generally becomes effective only after a waiting period.  /1/ Once a
tariff is in effect, carriers must charge and shippers must pay the
rates named in the tariff.

   Since 1948, motor carriers subject to regulation by the Commission
have been authorized to enter into rate agreements with other carriers
(Reed-Bulwinkle Act, ch. 491, 62 Stat. 472, now codified at 49 U.S.C.
(Supp. IV) 10706(b)).  /2/ The carriers have established rate bureaus
to facilitate the negotiation of collective rates.  /3/ The carriers'
activities in a rate bureau do not violate the antitrust laws, so long
as the agreement establishing the bureau has been approved by the
Commission, and the carriers' actions conform to the agreement.  49
U.S.C. (Supp. IV) 10706(b);  see Motor Carriers Traffic Association v.
United States, 559 F.2d 1251, 1253-1254 (4th Cir. 1977), cert. denied,
435 U.S. 1006 (1978).

   Until Congress enacted the Motor Carrier Act of 1980, Pub. L. No.
96-296, 94 Stat. 793, 42 U.S.C. (Supp. IV) 10101 et seq., the
Commission had broad discretion to define the conditions under which
it would approve rate bureau agreements.  See App., infra, 2a;  H.R.
Rep. No. 1100, 80th Cong., 1st Sess. 4 (1947).  In Section 14 of the
Motor Carrier Act of 1980 (94 Stat. 803), however, Congress enacted
specific statutory restrictions with respect to rate bureaus and rate
bureau agreements.  Motor carrier rate bureaus must comply with these
if they wish to maintain their antitrust immunity.  /4/ In imposing
these restrictions, Congress intended to narrow the Commission's
discretion to approve or disapprove agreements by creating a
presumption that agreements including the specified restrictions would
be approved.  H.R. Rep. No. 96-1069, 96th Cong., 2d Sess. 29 (1980);
App., infra, 6a-7a.

   2. The Commission implemented Section 14 with the rules adopted in
Motor Carrier Rate Bureaus -- Implementation of P.L. 96-296, Ex Parte
No. 297 (Sub-No. 5) (ICC Dec. 19, 1980) (App., infra, 32a-72a).
Although the rules cover a wide variety of subjects, this petition
involves only the Commission's decision (App., infra, 66a-68a) that
tariff rejection is an appropriate remedy for proven violations of
rate bureau agreements.  /5/ The Commission determined (App., infra
66a, 68a) that it would exercise its authority /6/ to reject (i.e.,
invalidate ab initio) effective tariffs where there is proof of
"significant" and "clear" violations of an approved agreement.  /7/
The Commission explained that effective administrative remedies are
needed to assure compliance with these approved bureau agreements
because such compliance is a statutory prerequisite to immunity for
activities that would otherwise be a per se violation of the antitrust
laws.  It is therefore necessary "to enforce vigorously" the
limitations imposed by the agreements (App., infra, 66a, 68a).  The
Commission also made clear (App., infra, 82a, 90a) that before a
tariff is rejected, a bureau will have an opportunity to be heard and
a right to appeal.  In sum, the Commission stated, the rejection
remedy will not prevent the bureaus "from establishing lawful rates
but only rates formulated in violation of the antitrust laws" (App.,
infra, 82a).

   3. The court of appeals affirmed the Commission's power to reject
tariffs that violate rate bureau agreements, so long as the rejection
occurs before the tariffs become effective (App. infra, 24a-26a).
However, the court struck down the Commission's rules insofar as they
authorize the rejection of effective tariffs.  /8/ The court held that
the underlying statute prohibits the rejection of a tariff after it
has become effective (App., infra, 29a).  The court stated (App.,
infra, 27a) that when a filed and effective tariff is found to violate
a rate bureau agreement, the Commission may prescribe the proper rate
and that liability for damages (as distinguished from overcharges)
then may arise.  /9/ But, the Court concluded, once a tariff has
become effective, requiring the carrier to refund, as an overcharge,
the difference between the rate paid and the former tariff "undermines
the uniformity and reliability interests that the system of tariff
filing was meant to foster" (App., infra, 28a).  Finally, the court
distinguished the "two lines of cases" that it recognized "shed doubt"
on its conclusion (App., infra, 29a).  /10/

                   REASONS FOR GRANTING THE PETITION

   As we explained in our response in Aberdeen & Rockfish R.R. v.
United States and National Motor Freight Traffic Ass'n v. United
States, Nos. 82-707 and 82-804, the decision below conflicts with the
Fifth Circuit's decision in that case, creating confusion over the
Commission's authority to enforce the provisions of the Interstate
Commerce Act by rejecting tariffs after they have become effective.
Moreover, the invalidation of that authority in this case
substantially impairs the Commission's ability to carry out its
statutory duty to assure that the antitrust immunity granted to
collective ratemaking will remain consistent with the national
transportation goals.  Accordingly, this case presents questions of
recurring and practical importance that warrant this Court's review.

   1.  The decision below cannot be reconciled with Aberdeen.  In that
case, the court drew a distinction between "applicable" rates (those
that have been filed and accepted by the Commission) and "lawful"
rates (rates conforming to the demands of the Act and Commission
regulations), and concluded that shippers must always pay the
"applicable" rate, but that they are entitled to recover overcharges
if the Commission later rejects the tariff after detecting a defect
making the rate unlawful.  Aberdeen & Rockfish R.R. v. United States,
682 F.2d 1092, 1101-1102 (5th Cir. 1982).  Here, in contrast, the
Eleventh Circuit held that the Commission may never reject an
effective tariff.  Thus, it is clear that the tariff rejection rule
affirmed by the Fifth Circuit (and now in effect) would be struck down
by the court below.  /11/

   The existing situation, in which the Commission has the power to
reject effective but unlawful tariffs in some circuits but not in
others, severely impairs the power of the Commission to regulate on a
uniform nationwide basis.

   2. We have explained in our response in Aberdeem why we believe
that the Commission has the statutory authority to reject effective
tariffs.  /12/ We suggested there (at 9 n.12) that it would be
appropriate for this Court to consider this case together with
Aberdeen.  We urge the Court to grant certiorari in both cases, thus
placing before the Court a variety of contexts in which the rejection
power issue may arise.  For example, power to reject tariffs is
particularly important in the context of the collective ratemaking
provisions involved in this case.  The statutory plan embodied in 49
U.S.C. (Supp. IV) 10706 balances the competing policies embodied in
the antitrust laws and the Interstate Commerce Act by permitting
collective ratemaking only when carriers comply with the terms of
Commission-approved agreements.  Compliance with those agreements is,
therefore, the keystone of the statutory structure.  Because the
Commission has approved the agreements, and has expert knowledge of
the rate bureaus' actual operations, it is clearly well equipped to
determine whether rate bureaus are adhering to their agreements.
Indeed, the courts, including the court below, have confirmed that the
Commission should take an active role in preserving the statutory
balance by ensuring rate bureau compliance with approved agreements.
/13/

   After careful consideration in the proceeding under review, the
Commission concluded that rejecting tariffs that reflect clear
violations of rate bureau agreements would be the most effective way
to ensure compliance with these agreements.  Rejection provides an
immediate and narrowly focused administrative remedy.  Its purpose is
to prevent carriers from benefiting from improperly developed rates.
It functions as a powerful deterrent to unauthorized collective
behavior.  /14/

   The decision of the court below /15/ denies the Commission the use
of this highly effective tool for enforcing the statutory balance
embodied in Section 10706, and makes it more likely that rates will be
formulated in violation of rate bureau agreements.  Accordingly, we
ask the Court to grant certiorari to resolve the validity of the rate
bureau rejection rule and to end uncertainty about the Commission's
tariff rejection authority.

                              CONCLUSION

   The petition for writ of certiorari should be granted.

   Respectfully submitted,

   REX E. LEE

      Solicitor General

   JOHN BROADLEY

      General Counsel

   LAWRENCE H. RICHMOND

      Deputy Associate General Counsel

   EVELYN G. KITAY

      Attorney Interstate Commerce Commission

   APRIL 1983

   /1/ The waiting period for railroad rates is 20 days (10 days for
reductions), 49 U.S.C. (Supp. IV) 10762(c)(3), and motor carrier rates
become effective after 30 days, 49 U.S.C. (Supp. IV) 10762(a)(2).  The
Commission, however, has the power to shorten the waiting period.  49
U.S.C. (Supp. IV) 10762(d)(1).

   /2/ Although the Reed-Bulwinkle Act also applies to rail carriers
(49 U.S.C. (Supp.IV) 10706(a)), this case involves only motor carriers
and shippers.

   /3/ The rate bureaus also act as their members' agents in
submitting to the Commission tariffs containing the collective rates,
and also tariffs containing rates established by their individual
members.

   /4/ For example, Section 14(a) (94 Stat. 805) of the Act restricts
voting on collective proposals to those carriers that have authority
to participate in the transportation to which the proposal applies;
bars bureau protests of any motor carrier rate proposal;  limits
discussion of general rate increases to industry average costs;
imposes strict limits on bureau handling of independent action
proposals;  requires completely open bureau meetings;  and bans any
discussion of, or voting on, single-line rates after January 1, 1984.
49 U.S.C. (Supp. IV) 10706(b)(3)(D).  That Section also requires the
bureaus to submit new agreements incorporating the statute's
restrictions to the Commission for approval (49 U.S.C. (Supp. IV)
10706(c)).

   /5/ In the court of appeals, respondents here also challenged
Commission rules pertaining to advance notice of independent action by
individual carriers;  cancellation of outstanding special permission
authorities waiving statutory tariff filing procedures;  limitations
on discussion of general rate increases;  authorization of sound
recordings at open bureau meetings;  and the interpretation of the
statute's restriction on discussion of rates that limit liability
(App., infra, 10a-24a).

   /6/ The commission relied for this authority on 49 U.S.C. (Supp.
IV) 10762(e) which provides:

         The Commission may reject a tariff submitted to it by a
      common carrier under this section if that tariff violates this
      section or regulation of the Commission carrying out this
      section.

   /7/ Where a lesser violation of an agreement is shown, the tariff
will be suspended or investigated (App., infra, 68a).  Because a
rejected tariff is considered void ab initio, rejection of a tariff
increase subjects the carrier to overcharge liability based on the
pre-existing rate, while suspension only prevents use of the new
tariff prospectively.  See 49 U.S.C. (Supp. IV) 11705(b)(1).  The
Commission also noted (App., infra, 68a) that it would continue to
refer to the antitrust enforcement authorities the results of
Commission investigations into alleged violations of bureau
agreements, and would continue its practice of withdrawing approval of
agreements of bureaus that failed to adhere to approved procedures.
Although the court of appeals held (App., infra, 27a & n.26) that the
suspension remedy applies only to proposed tariffs, neither that
remedy, nor the remedies of investigation, referral, or withdrawal are
at issue here.

   /8/ With the exception of the portion of the rules dealing with
blanket special permission authority, which the court invalidated for
failure to comply with Administrative Procedure Act, (5 U.S.C. 551 et
seq.) notice and comment procedures, the other portions of the rules
were upheld.  See note 5, supra.

   /9/ Damages are not necessarily measured against an existing or
former rate.  49 U.S.C. (Supp. IV) 11705(b)(2).  In contrast,
overcharges are defined as amounts that exceed the applicable rate set
forth in a tariff filed under the Act's tariff filing requirements.
49 U.S.C. (Supp. IV) 11705(b)(1).

   /10/ These cases are discussed in our brief in response to the
petitions for a writ of certiorari in Aberdeen & Rockfish R.R. v.
United States and National Motor Freight Traffic Ass'n v. United
States at 9-10 (Nos. 82-707 and 82-804).

   /11/ As we further explain in our Aberdeen response (at 9) other
circuits are also in disagreement about the Commission's power to
reject effective tariffs.  See Chicago, M., St. P. & P.R.R. v.
Alouette Peat Products, Ltd., 253 F.2d 449 (9th Cir. 1957);  Genstar
Chemical, Ltd., v. ICC, 665 F.2d 1304, 1308-1309 (D.C. Cir. 1981),
cert. denied, 456 U.S. 905 (1982);  Providence & W.R.R. v. United
States, 666 F.2d 736, 744 (1st Cir. 1981).

   We note that Delta Air Lines, Inc. v. CAB, 543 F.2d 247 (D.C. Cir.
1976), does not preclude ICC rejection of tariffs that violate rate
bureau agreements.  The court's primary concern in Delta was that the
CAB, in violation of its statutory mandate, failed to conduct a
required hearing before rejecting an effective tariff (543 F.2d at
254).  In sharp contrast, ICC rejection provisions allow for
complaint, answer, and reply, and fully satisfy the hearing
requirement of 49 U.S.C. (Supp. IV) 10704(a)(1).

   /12/ In addition to the arguments discussed in our Aberdeen
response, the court below suggested (App., infra, 28a) that the
rejection of effective tariffs would undermine the Act's tariff
uniformity and reliability interests.  First, the Motor Carrier Act of
1980, Pub. L. No. 96-196, Section 4, 94 Stat. 794, 49 U.S.C. (Supp.
IV) 10101(a), reduced any prior emphasis on rate uniformity by
encouraging increased competition among carriers and the offering of a
variety of quality and price options to shippers.  Regarding rate
bureaus specifically, Congress recognized that the Bureaus promoted
predictability in rates, but then deliberately took steps to inject
more competitive pricing into the motor carrier rate system.  H.R.
Rep. No. 96-1069, 96th Cong., 2d Sess. 27-28 (1980).  Thus, the
emphasis of the court of appeals on the importance of rate uniformity
is inconsistent with the most recent expression of congressional
policy.

   Second, even if tariff uniformity were still a primary statutory
goal, the rejection of effective tariffs after the full hearing
contemplated by the Commission would not undermine that goal any more
than would the complaint procedure accepted without question by the
court of appeals (App., infra, 27a), because that procedure permits a
challenge to motor carrier rates at any time under 49 U.S.C. (Supp.
IV) 11701.  Thus, carriers can never be certain that their rates will
not be found unlawful or that they will not have to make refunds to
shippers.

   /13/ In Board of Trade v. ICC, 646 F.2d 1187, 1193 (7th Cir. 1981),
the court held that the Commission must find unlawful any tariff
developed in violation of rate bureau procedures.  The court below,
while "not necessarily endors(ing)" the mandatory aspect of the
Seventh Circuit's holding, agreed that the Commission should be
concerned about the bureau's compliance with the agreements (App.,
infra, 25a n.22).

   /14/ Under the court of appeals' rule, however, the carriers could
retain charges collected under rates that clearly violate bureau
agreements (but are otherwise reasonable) unless a shipper or carrier
sustains the difficult burden of showing actual injury.

   /15/ It should be noted that the court's holding affects not only
motor carriers of property, but also motor carriers of passengers.
The Bus Regulatory Reform Act of 1982, Pub. L. No. 97-261, Section 10,
96 Stat. 1109, applies the provisions of Section 10706(b) to passenger
motor carriers.  In Bus Rate Bureau Procedures, Ex Parte No. 297
(Sub-No. 6) (ICC Mar. 8, 1983), slip op. 7-8, the Commission decided
to apply the tariff rejection procedures to bus rate bureaus.

   Appendix Omitted