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The original documents are located in Box 18, folder "1975/01/02 S1418 Herbert Hoover
Education Building" of the White House Records Office: Legislation Case Files at the
Gerald R. Ford Presidential Library.
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Digitized from Box 18 of the White House Records Office Legislation Case Files at the Gerald R. Ford Presidential Library
APPROVED75
ACTION
THE WHITE HOUSE
Last Day: January 4
WASHINGTON
January 2, 1975,
Poold
1/3
To archies
MEMORANDUM FOR
THE PRESIDENT
FROM:
KEN L COLE
SUBJECT:
Enrolled Bill S. 663 - Judicial Review of
Decisions of Interstate Commerce Commission
Attached for your consideration is S. 663, sponsored by
Senators Hruska and Burdick, which amends the United States
Code with respect to judicial review of decisions of the
Interstate Commerce Commission.
The proposed legislation would change the review of ICC orders
in several respects. It would provide that:
-- Jurisdiction will be transferred from the district
courts to the courts of appeals;
-- review by the Supreme Court will be by the discretionary
writ of certiorari instead of as a matter of fact; and
-- multiple suits against the same ICC order will be
eliminated and there will be a 60-day limitation for
filing petitions with the court of appeals for review
of ICC orders.
OMB recommends approval and provides additional background
information in its enrolled bill report (Tab A).
Max Friedersdorf and Phil Areeda both recommend approval.
RECOMMENDATION
That you sign S. 663 (Tab B).
GERALD - FORD LIGRARY
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
DEC 27 1974
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill S. 663 - Judicial Review of Decisions
of Interstate Commerce Commission
Sponsors - Sen. Hruska (R) Nebraska and
Sen. Burdick (D) North Dakota
Last Day for Action
January 4, 1975 - Saturday
Purpose
Amends the United States Code with respect to judicial review
of decisions of the Interstate Commerce Commission.
Agency Recommendations
Office of Management and Budget
Approval
Department of Justice
Approval
Administrative Office of the
United States Courts
Approval
Interstate Commerce Commission
Would not recommend
disapproval
Discussion
In 1913 Congress enacted the Urgent Deficiencies Act which
established the current procedure for review of orders of the
Interstate Commerce Commission (ICC). Under the Act orders of
the ICC have been reviewed in the United States District Courts
by panels of three judges, at least one of whom must be a judge
of the court of appeals for the district. Appeals from the
three-judge court lie directly to the Supreme Court as a matter
of right. This outdated and cumbersome procedure has imposed
an unnecessary burden on Federal judicial resources at the
district, circuit and Supreme Court level.
GERALD
2
In 1950 the Congress enacted the Judicial Review Act, which
placed such appeals from the orders of some agencies in single-
judge district courts, with further review to be conducted by
the circuit courts of appeals. Appeals would go to the
Supreme Court only upon the Supreme Court's approval of a
writ of certiorari.
The enrolled bill would expand the procedures of the Judicial
Review Act to cover the ICC. This would:
:-
transfer to the court of appeals the orders
now reviewed by a three-judge court;
--
limit review by the Supreme Court to cases
taken by the discretionary writ of certiorari;
and
--
limit multiple suits against a single agency
order.
In addition, the enrolled bill would:
--
make other changes designed to simplify and
streamline judicial review of ICC cases while
retaining existing procedure in most material
respects; and
--
continue the existing practice which allows
the ICC to intervene as a party in interest
before the Supreme Court as a matter of right,
notwithstanding any objection by the Department
of Justice.
In a report to the House Committee on the Judiciary in December
1974, the Department of Justice strongly recommended enactment
of the enrolled bill.
Weefred H Rommel
Assistant Director for
Legislative Reference
it
FORD
Enclosures
Interstate Commerce Commission
1887
Washington, 4. 20423
Office of the Chairman
December 26, 1974
Mr. W. H. Rommel
Assistant Director for Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Rommel:
I have your communication of December 23, 1974, requesting views
on an enrolled bill, S. 663, which amends Title 28 of the United States Code
to provide a new method for judicial review of decisions of the Interstate
Commerce Commission.
On December 10, 1974, I testified before the Subcommittee on Crime
of the House Committee on the Judiciary with respect to that legislation. For
your information, I am enclosing a copy of my prepared statement which sets
forth the views of the Commission in great detail. As you can see from the
enclosure, we supported the legislation but expressed two reservations.
The first reservation was that we desired to either amend the bill or
make sufficient legislative history to assure our right of independent action
vis a vis the Department of Justice. Although the bill was not amended, the
legislative history now clearly indicates we have retained that right. There-
fore this issue is no longer a matter of concern.
Unfortunately the Committee did not see fit to amend the legislation to
take care of our second concern, namely, the provision for optional venue in
the United States Court of Appeals for the District of Columbia. We continue
to feel that the inclusion of this provision is not in the public interest. However,
I do not believe that this deficiency is so serious as to warrant Presidential veto.
Thank you for the opportunity to comment on this enrolled bill.
George Sincerely M. yours, Stafford, Stappoid
BERALD FORD
Legislative Committee
Vice Chairman Alfred T. MacFarland
Commissioner Robert C. Gresham
Enclosure
Commissioner A. Daniel O'Neal, Jr.
STATEMENT
OF
GEORGE M. STAFFORD
CHAIRMAN, INTERSTATE COMMERCE COMMISSION
BEFORE THE
SUBCOMMITTEE ON CRIME
HOUSE COMMITTEE ON THE JUDICIARY
ON
S. 663
December 10, 1974
Mr. Chairman, Members of the Subcommittee:
I am pleased to appear here today to offer the Commission's
views on S. 663, as approved by the Senate. The bill would amend Title
28 of the United States Code, with respect to judicial review of decisions
of the Interstate Commerce Commission. It passed the Senate on Novem-
ber 16, 1973.
Presently, judicial review of Interstate Commerce Commission
orders is before U. S. district courts of three judges, at least one of whom
must be a circuit judge, with the decisions of these three-judge courts
reviewable by the Supreme Court by appeal, rather than by writ of certiorari.
In general, S. 663 would change existing law to provide that the Commission's
orders shall be reviewed by the U. S. courts of appeals, and that the courts
of appeals' decisions, in turn, shall be reviewable by the Supreme Court by
the discretionary writ of certiorari rather than by direct appeal as of right.
1/ 28 U.S.C. 1253, 1336, 1398, 2284, and 2321-25.
BERALD
More specifically, S. 663 would subject the review of Interstate Commerce
Commission orders to the Judicial Review Act of 1950 (Hobbs Act), which
currently applies to review of decisions of certain other Federal agencies,
including the Federal Communications Commission, Federal Maritime
Commission and Atomic Energy Commission.
Before discussing specific provisions of S. 663, I should like to
note that the Commission generally is in accord with the concept that its
decisions be reviewed by the courts of appeals. In fact, revision of the law
has been recommended to the Congress by the Commission since 1963. We
fully agree with Chief Justice Burger and others who have commented that the
three-judge court procedure is cumbersome and inefficient, and would add
that a court of appeals is clearly a more appropriate forum for review of our
orders than is a three-judge district court. Not only is the court of appeals
the forum for review of orders of nearly all other Federal administrative
agencies, but also various features of that review would correct what are
presently problems in the three-judge district court procedure. For example,
S. 663 would require that judicial review proceedings be instituted within 60
days after entry of the Commission's order, thereby providing a reasonable
opportunity to seek review while protecting the integrity of transactions
approved by the Commission against belated appeals. Under present law there
is no such specific time limit, apart from the general statutes of limitations
2/ Ch. 158, Title 28, 28 U.S.C. 2341 et seq.
- 2 -
and concept of laches, within which review actions must be brought. In
addition, providing for review in the courts of appeals would have the further
effect of making applicable the provisions- requiring the consolidation of
multiple suits against a single order in one court and for the agency to provide
the administrative record for the reviewing court. Under present law, there
is no requirement that multiple suits be consolidated, and the burden is on the
complainant to furnish the administrative record to the court.
For these and other reasons, the Commission believes that judicial
review in the courts of appeals would be an improvement over the existing
procedure, and it is for this reason that we have long supported the purposes
of bills such as S. 663. Nevertheless, we are opposed to S. 663 as approved
by the Senate and would urge its defeat unless materially revised.
3/ 28 U.S.C. 2112.
- 3 -
Control of Litigation
There are two specific features of S. 663 as approved by the
Senate that occasion objections to the bill. As you are aware, section 8
of the Judicial Review Act, as amended. provides that "The Attorney
General is responsible for and has control of the interests of the Govern-
ment in all court proceedings under this chapter, " a provision which does
not exist in the judicial review statutes presently applicable to the Commis-
sion. Present law provides that the United States shall be named as
5/
defendant, a provision which substantially corresponds to language in the
Judicial Review Act to the same effect. and that "the Attorney General
shall represent the Government in the actions. .,7/ Our concern is that the
first sentence of section 2348 is susceptible of the construction that the
Commission would be precluded from taking a position in a case independent
of and separate from that of the Department or, under section 2350, filing a
petition for a writ of certiorari on its own.
This area is of the utmost importance to the Commission for in
a few but significant cases the Department has declined to defend the
Commission's orders in court. Sometimes this results from the inter-
vention of some other Federal agency in opposition to the Commission's
4/ 28 U.S.C. 2348.
5/ 28 U.S.C. 2322.
6/ 28 U.S.C. 2344.
7/ 28 U.S.C. 2323.
- 4 -
position. A recent example of this was the recent Supreme Court case of
Atchison, T. & S.F. Ry. Co. V. Wichita Board of Trade, where the
Secretary of Agriculture opposed the Commission's order and the Department
elected to remain neutral at the district court level. In the Supreme Court,
the Department did support the Commission in part, but not as to the merits
of the agency's order.
On other occasions, the Justice Department's reluctance to join
in the defense of Commission orders stems from the fact that the Department
itself has participated in the Commission proceeding and does not agree with
the Commission's ultimate decision. This may result from the Department's
representation of the Government as a participant in the transportation process
But by far the most troublesome area in which the Justice Depart-
ment may decline to defend Commission orders is where there are differences
of opinion on questions of policy and statutory construction. Because carriers
acting pursuant to the Commission's orders are generally immune from direct
attack under antitrust laws, many of these differences in recent years have
8/ Nos. 72-214 and 72-433, Oct. Term 1972, decided June 18, 1973.
9/ Thus, in a recent district court case, United States V. United States and
Interstate Commerce Commission, Civil Action No. 2624-70, D.D.C., decided
December 12, 1971, the United States unsuccessfully pursued a claim against
certain railroads before the Commission, and, on judicial review, declined in
its role as statutory defendant to defend the Commission's order. The Com-
mission ultimately won this case.
- 5 -
involved the issue of competition and its evaluation by the Commission in
10/
such complex areas as intermodal rate competition and railroad mergers.
It follows that the public interest is best served by guaranteeing
the Commission the right which it presently has to defend its actions inde-
pendent of the views of the Department of Justice. To accomplish this,
10/ A case in point is Louisville & Nashville R.R. Co. V. United States and
Interstate Commerce Commission (Ingot Molds Case), 392 U.S. 571 (1968).
In that case the Commission held that the National Transportation Policy
admonition that the inherent advantages of carriers be preserved enabled
it to invalidate a proposed railroad rate reduction that would have under-
mined a bargeline cost advantage, when measured by fully distributed cost.
The Department confessed error and contended that this constituted a holding
up of a rate to a particular level to protect the traffic of another mode of
transportation, in violation of section 15a(3) of the Interstate Commerce Act.
The Supreme Court sustained the position of the Commission over the con-
tinued objection of the Department of Justice.
In United States V. United States and Interstate Commerce Commission
(Northern Lines Merger Case), 396 U.S. 49 (1970). the Commission authorized
the merger of the Great Northern, Northern Pacific and Burlington Railroads,
upon finding, among other things, that the economies and efficiencies the
merger would yield would offset any disadvantages resulting from the loss of
competition among the carriers. A suit to set aside the Commission's order
was brought by the Department, which also pressed for a stay of consumma-
tion of the transaction pending judicial review. The Supreme Court again
sustained the position of the Commission.
- 6 -
it is necessary to amend S. 663. The amendment should make it clear that
the Commission has the right to defend its actions independent of the
Department of Justice. This could be done by adding a new section to the
bill which would amend the first sentence of section 2348 of title 28, United
States Code, to read:
The Attorney General is responsible for and
has control of the interests of the Government
in all court proceedings under this chapter,
except for a proceeding under paragraph (5)
of section 2342 of this Title.
In the past, the Department of Justice has opposed provisions
similar to the amendment we propose here on the ground that such changes
would, in the Department's view, alter the Attorney General's responsi-
bility for primary control of this class of litigation. This, however, dis-
regards what in fact is the existing procedure. As a practical matter, the
Attorney General does not now manage or control the defense of Commission
orders. On the contrary, the almost universal practice is the defense
of the Commission's orders to be assigned to an attorney in the Office of the
General Counsel of the Commission. The answers, briefs and the other
pleadings in most of the actions challenging the validity of Commission orders
do bear the name of the respective United States Attorneys and that of the
Assistant Attorney General in charge of the Antitrust Division and his attorneys.
- 7
However, this reflects only the fact that ordinarily the Department of Justice
joins in the defense of the Commission's orders and subscribes to the posi-
tion advanced by the Commission's counsel. In such cases, the role of the
Department of Justice is largely passive and leaves to the Commission's
counsel the responsibility for fashioning and presenting the written as well
as oral arguments before the reviewing courts. At the Supreme Court level,
a
the Solicitor General assumes a more active role in the litigation in cases
where the Department and the Commission are in agreement, but even here
there has previously been no question that the Commission has an independent
right to pursue its own course of action in cases where there are differences
between the two agencies.
At this point I hand the Subcommittee a copy of a letter on S. 663
by the Honorable Albert B. Maris, Senior U. S. Circuit Judge of the Court of
Appeals for the Third Circuit. Judge Maris, as you will recall, was previously
a member of the Judicial Conference and has been involved in questions of
judicial review of agency orders for many years. The substance of his suggestion
here is that the Commission should be named as respondent in any action, with
a right to intervene reserved to the Attorney General. This is, of course, the
opposite of present Commission practice and that authorized under the Judicial
Review Act, where the United States is named as defendant or respondent and
- 8 -
the agency involved is permitted to intervene. 11/ Judge Maris' view is
that the agency whose orders are under attack is the real party respondent
in interest, while the Attorney General represents broader policy interests
of the Government. While we do not here insist upon the specific amend-
ment Judge Maris advocates, we do feel that his remarks underscore the
importance of permitting the Commission to pursue a different course of
action from that of the Attorney General at all stages of court review.
I am aware of the letter of Solicitor General Bork, referred to
on pages 6 and 7 of the Senate Report (No. 93-500) accompanying the bill, in
which he assures us of our right of independent access to the Supreme Court.
However, as recently as this past August, one year after Mr. Bork's letter,
Assistant Attorney General Robert G. Dixon, Jr., in charge of the Depart-
ment's Office of Legal Counsel, in a speech to the American Bar Association
in Honolulu stated, and I quote:
"The Department of Justice and OMB have favored centralization
of litigation in the Attorney General. This insures consistency of government
positions on similar issues and provides a pool of experienced litigators. Thus
Congress has, in Title 28, placed litigation for the United States under the
control of the Attorney General except as otherwise authorized by law. 28
U.S.C. 516-518. Of course, there always have been a certain number of
11/ 28 U.S.C. 2322, 2323, 2344.
- 9 -
agencies authorized to litigate certain matters on their own, but normally
not in the Supreme Court, 16/ and others who would like to do so."
"16/ Under existing statutes, some independent regulatory agencies have
been granted limited litigation authority. For example, the SEC and the
FPC, in addition to possessing subpoena enforcement power, are empowered
to bring an action in any federal district court to enjoin practices in violation
of its governing statutes or any of its rules or regulation, 15 U.S.C. 77t(b),
79r; 16 U.S.C. 825m, 825f(c)
"On the other hand, Supreme Court litigation is concentrated in the
Solicitor General. One exception is the authority given to the Comptroller
General to enforce the Presidential Election Campaign Fund Act of 1971, including
review in the Supreme Court. 21 U.S.C. 9010(d). Also, although the statutory
basis is not altogether clear, (see 28 U.S.C. 2323), as a matter of practice,
the ICC has since 1913 represented itself before the Supreme Court."
Because of the foregoing attitude, the Commission urges adoption
of the specific statutory direction that we suggest.
- 10 -
Optional Venue
As you know, under existing law, suit to review Commission
actions can be brought only in the jurisdiction in which the petitioner resides
or has his principal office. As approved by the Senate, S. 663 would change
this and also allow for optional venue in the United States Court of Appeals
for the District of Columbia.
When we testified before the Subcommittee of the Senate Judiciary
Committee, we opposed such an approach, and the Department of Justice
concurred. It was on that basis that we supported the legislation. However,
when the Committee reported the bill and as the Senate passed it, the optional
venue provision was reinstated.
The experience of the other administrative agencies, subject to
Hobbs Act and similar review, has been that well above half of their court
cases have been brought the Washington, D.C. Circuit Court of Appeals.
The Federal Maritime Commission in a ten year period, from 1965 to 1974,
had 52 actions brought assailing the validity of its orders. Of these 37 were
brought in the United States Court of Appeals for the District of Columbia
Circuit. The Federal Commumications Commission in a four year period,
1970 to 1973, was involved in 299 such suits, 237 of them maintained in the
District of Columbia. The Atomic Energy Commission during the last year
had 18 actions instituted against its order; of these 13 were brought before
the United States Court of Appeals for the District of Columbia Circuit.
- 11 -
As a consequence, the United States Court of Appeals for the
District of Columbia Circuit has tended to become a super administrative
agency, seeming to conceive of itself as being better informed of the issues
before them than the administrative agencies whose decisions it reviews,
rather than limiting itself to exposing errors of law allegedly committed
by the agencies.
I have no doubt that the judges of the Court of Appeals for this
Circuit are no less concerned or conscientious than those of any other
Circuit, and neither do I doubt that the result I perceive was not one of
their deliberate devising.
Rather, I conceive of it as an inevitable result of the concentra-
tion of judicial review of administrative agency action in any single court.
I think there is merit in having all of the Circuit Courts of
Appeals participate in the task of reviewing the decisions of the administrative
agencies; I think there is virtue in encouraging divergent approaches to the
resolution of the problems the administrative agencies address, even if at
times the courts' opinions smack of a local rather than a national flavoring
and if at other times the conflicts between them pose uncertainty and confu-
sion, at least until the Supreme Court passes on the relevant question.
In turn, I think we who are identified with the administrative
agencies would better be able to perform our tasks, be more effective in our
responses to the Nation's needs if we had the benefit of the reactions of the
- 12 -
several Courts of Appeals rather than if we were accountable, for all practical
purposes, to merely the United States Court of Appeals for the District of
Columbia Circuit.
The suggestion advanced by a Washington lawyer prominent in
practice before the Interstate Commerce Commission and partner in the law
firm representing the National Industrial Traffic League that, unless there is
optional venue in the District of Columbia, the carriers enjoy a litigation
advantage that the shippers are denied, is wholly unfounded. There is only
one class I railroad based bere, and no truck or barge line, but there are
scores of merchants or wholesalers that might be involved in litigation arising
out of I.C.C. orders. Moreover, there are far more trade associations
domiciled in Washington that include shippers in their membership than there
are having carrier members; indeed, the Yellow Pages of the telephone directory
go on for eight pages of listings, from the Aerospace Industries Association of
America, Inc., to Zero Population Growth, Inc., both of which happen to be
quite active in the transportation area. Therefore, access to the Washington,
D.C. courts even in the absence of an optional venue provision is no less
available to the shippers than the carriers.
Before closing, I would like to make one final observation with
respect to optional venue. The volume of litigation arising from orders of
the Commission is large. For example, in the last three years, 328 suits
- 13 -
have been filed in various district courts. Of these, 19 have been filed in the
District of Columbia. Based upon the experience of other agencies, it seems
reasonable to predict that if optional venue is retained a majority of suits
involving Commission orders would be filed in the D.C. Circuit Court of
Appeals, thus substantially increasing the workload of that Court. It is easy
to envision that this increased volume would result in a backlog of cases
involving orders of the Interstate Commerce Commission.
Therefore, we oppose S. 663 unless it is amended to delete optional
venue in the District of Columbia.
We appreciate the opportunity to present these views today. We
are concerned about the Court review of Commission orders and believe that,
with the coming of various moves to abolish the three-judge district courts
generally, this is a particularly good time to try once again to put review of
our orders where it belongs. Accordingly, we would support S. 663, if the
amendments we have recommended herein are adopted.
That concludes my formal statement. I and those members of the
Commission's staff who are with me will attempt to answer any questions
you may have.
BERALD
- 14 -
ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS
SUPREME COURT BUILDING
WASHINGTON, D.C. 20544
ROWLAND F. KIRKS
DIRECTOR
December 23, 1974
WILLIAM E. FOLEY
DEPUTY DIRECTOR
W. H. Rommel
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D. C.
Dear Mr. Rommel:
This is in reference to your request of December 23,
1974, transmitting for views and recommendations enrolled
bill S. 663, an act "To improve judicial machinery by
amending title 28, United States Code, with respect to
judicial review of decisions of the Interstate Commerce
Commission and for other purposes."
Inasmuch as this legislation carries out a recommenda-
tion of the Judicial Conference of the United States,
Executive approval is recommended.
Sincerely,
William Luin Deputy Director E. E. Foley foly
ASSIS ANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
DEC 2 to 1974
Honorable Roy L. Ash
Director, Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Ash:
In compliance with your request, I have examined
a facsimile of the enrolled bill S. 663, "To improve
judicial machinery by amending title 28, United States
Code, with respect to judicial review of decisions of
the Interstate Commerce Commission."
A description of S. 663 and the reasons why the
Department of Justice recommends Executive approval
of the bill are contained in the attached copy of my
December 9, 1974 letter to the Chairman of the House
Committee on the Judiciary.
Sincerely,
MRokestrew W. Vincent Rakestraw
Assistant Attorney General
and REVOLUTION )
1776-1976
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
DEC 9 1974
Honorable Peter W. Rodino, Jr.
Chairman, Committee on the Judiciary
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your request for the views
of the Department of Justice on S. 663, a bill to improve
judicial machinery by amending Title 28, United States
Code, with respect to judicial review of decisions of
the Interstate Commerce Commission, and for other purposes,
as passed by the Senate.
Judicial review of orders of the Interstate Commerce
Commission is now based on the Urgent Deficiencies Act
of 1913, 28 U.S.C. 1336, 2321-2325. A suit to set aside
such an order, except one solely for the payment of money,
is filed in the district court in which plaintiff has
his residence or principal office and is heard by a panel
of three judges, at least one of whom must be a judge
of the court of appeals. There is direct appeal as a
matter of right from the three-judge court to the Supreme
Court. Since anyone adversely affected may sue to annul
the order in the district in which he has his residence
or principal office, there may be multiple suits attacking
the same order in different districts. There is no express
time limitation for filing such a suit. In these suits,
which are against the United States, the Attorney General
represents the government; however, the Commission and any
other party in interest may intervene and be represented
by their own counsel. Any party to the suit may continue
to prosecute or defend it regardless of any action or
nonaction of the Attorney General. (28 U.S.C. 1253, 1336,
1398, 2284, 2321-2325.)
REVOLUTION
17/6-1976
-2-
S. 663 would place review of ICC orders, except
those for the payment of money, under the Judicial Review
Act of 1950, commonly known as the Hobbs Act (28 U.S.C.
2341 et seq.). This Act transferred to the court of
appeals the jurisdiction of three-judge district courts
to review certain orders of the Federal Maritime Commission,
the Federal Communications Commission, and the Department
of Agriculture. Notwithstanding the recommendation of
the Judicial Conference, the 1950 statute as finally enacted
did not apply to the Interstate Commerce Commission. The
Atomic Energy Commission was placed under the Act in 1954.
S. 663 would thus change the review of ICC orders
in several respects. Jurisdiction will be transferred
from the district courts to the courts of appeals. Review
by the Supreme Court will be by the discretionary writ
of certiorari under 28 U.S.C. 1254 instead of as a matter
of right. Multiple suits against the same ICC order will
be eliminated and there will also be a 60-day limitation
for filing petitions with the court of appeals for review
of ICC orders.
The Department of Justice strongly recommends the
enactment of this bill. The existing procedure has
imposed a substantial burden on the judiciary which should
be eliminated.
S. 663 would help to relieve the already full dockets
of the federal district courts and reduce the need for
district and circuit judges to assemble in special three-
judge district court panels. Many of the judges assigned
to these ICC cases -- particularly those from the courts
of appeals - were required to lay aside their regular
duties to attend these hearings, frequently in distant
locations within the circuit, because a full complement
of three judges was not regularly assigned to the city in
which the cases were filed. As far back as 1941, Mr.
Justice Frankfurter described the three-judge procedure
as "a serious drain upon the federal judicial system
particularly in regions where, despite modern facilities,
distance still plays an important part in the effective
administration of justice. And all but the few great
metropolitan areas are such regions. " Phillips V. United
States, 312 U.S. 246, 250 (1941).
-3-
The burden on the Supreme Court is comparable. It
has to review a number of ICC cases that it ordinarily
would decline to do under its certiorari jurisdiction.
Because of the limited public importance of most of these
cases, as well as the large number of cases involving
constitutional or other important questions requiring
greater attention, the Supreme Court decides most of them
without full briefing and oral argument.
The bill will have several additional desirable
consequences. First, it will eliminate multiple suits
attacking a single ICC order brought in different loca-
tions before different courts. The Hobbs Act provides
that the court of appeals in which the agency record
is first filed has exclusive jurisdiction to determine
the validity of the agency order (28 U.S.C. 2349 (a) )
Also, 28 U.S.C. 2112 (a) requires consolidation of all
petitions for review of an agency order in one circuit.
Second, the bill will make applicable to the ICC the
Judicial Review Act provision which requires that a
petition attacking an agency order be filed within 60
days from its entry. (28 U.S.C. 2344)
Third, placing review of ICC orders under the Judicial
Review Act will ease the procedural and financial burden
on private parties challenging ICC orders by requiring
the agency, instead of the plaintiff, to file the admini-
strative record with the reviewing court. The added
cost to the government will not be undue, since the new
Federal Rules of Appellate Procedure allow the agency to
file a certified list of the materials comprising the
record in lieu of reproducing or filing the original
papers. Fourth, a quorum of the court of appeals will be
able to decide a case challenging an ICC order when one
of the assigned judges has become incapacitated. See 28
U.S.C. 46 (d). A quorum provision does not apply to
three-judge district courts, and the Supreme Court has
held that the participation of fewer than three judges
renders the decision void. See Ayrshire Corp. V. United
States, 331 U.S. 132 (1947). This becomes a particular
hardship in the rare circumstance of the incapacitation
or death of a judge after hearing but prior to decision.
-4-
Fifth, the legislation would make specific what
is already assumed by litigants and the courts -- rules
and regulations of the Commission are reviewed in the
same judicial tribunal which has jurisdiction to review
adjudicated orders of that agency. See American Trucking V.
A.T. & S.F.R. Co., 387 U.S. 397 (1967). The jurisdictional
provisions of existing law make no reference to rules
and regulations, even though the procedure and the standards
for judicial review of rules and orders differ materially.
Despite the practice of the Commission to label the
promulgation of a rule as an order, parties should not
be left with uncertainty as to the nature and jurisdiction
for review of the ICC's decisions.
In all other material respects, the existing procedure
will continue under the new statute. Thus, actions will
be filed against the United States, with the Attorney
General managing and controlling the defense of the agency's
order. This is in line with existing procedure applicable
to the ICC and to agencies already governed by the Judicial
Review Act, and simply retains a procedure that was
strongly endorsed as critical to the "efficient performance
of legal services within the Executive Branch" by the
Hoover Commission in 1955. See Commission on Organiza-
tion of the Executive Branch of the Government, Report
on Legal Services and Procedures, p. 6 (1955). The ICC
will retain its right to participate independently through
all stages of judicial review. In addition, the court of
appeals will have the same power as do the three-judge
district courts to issue interlocutory orders to stay
the effect of a challenged decision pending review on
the merits. The only change would be that applications
for interlocutory relief will have to be submitted to a
three-judge panel of the court of appeals instead of
merely one district judge prior to the empaneling of a
three-judge court. In practice, this will not amount
to any hardship since comparable applications are routinely
referred to a panel of the court regularly assigned to hear
motions on an expedited basis.
Finally, if review were placed under the Hobbs
Act, as the bill provides, litigants and judges would
have the benefit of an established and familiar procedure
with a sizable body of interpretive case law that has
served efficiently and with general approval for nearly
-5-
20 years. The Department believes that the time has
come for implementation of the long-sought reform of
the procedure for reviewing ICC orders. Our experience
under the Hobbs Act demonstrates that this statute
affords the most simple and effective method for achieving
this reform while preserving the salutary relationship
between the Attorney General and the Commission which
Congress wisely provided for in the Urgent Deficiencies
Act of 1913. The Solicitor General, in a letter of
August 13, 1973 to Senator Burdick, specifically affirmed
that the Interstate Commerce Commission would continue
to have the same authority to represent itself independently
in the Supreme Court under S. 663 that it now has under
the Urgent Deficiencies Act.
The Office of Management and Budget has advised
that there is no objection to the submission of this
report from the standpoint of the Administration's Program.
Sincerely,
(Signed) W. Vincent Rakestr
W. Vincent Rakestraw
Assistant Attorney General
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 859
Date: December 27, 1974
Time:
7:00 p.m.
FOR ACTION: Geoff Shepard
CC (for information): Warren Hendriks
Max Friedersdorf
Jerry Jones
Phil Areeda
FROM THE STAFF SECRETARY
DUE: Date: Monday, December 30
Time: 1:00 p.m.
SUBJECT:
Enrolled Bill S. 663 - Judicial Review of Decisions of
Interstate Commerce Commission
ACTION REQUESTED:
For Necessary Action
X For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X For Your Comments
Draft Remarks
REMARKS:
Please return to Judy Johnston, Ground Floor West Wing
Sign th 6.11 Sign-th bill OK
BERALD
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
warren K. Hendriks
For the President
THE WHITE HOUSE
WASHINGTON
MEMORANDUM FOR:
WARREN HENDRIKS
FROM: SUBJECT: Ven Landor MAX L. FRIEDERSDORF
Action Memorandum - Log No. 859
Enrolled Bill S. 663
The Office of Legislative Affairs concurs in the attached proposal
and has no additional recommendations.
Attachment
EXECUTIVE OFFICE OF THE PRESIDENT
12-27-74
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
DEC 27 1974
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill 8. 663 - Judicial Review of Decisions
of Interstate Commerce Commission
Sponsors - Sen. Hruska (R) Nebraska and
Sen. Burdick (D) North Dakota
Last Day for Action
January 4, 1975 - Saturday
Purpose
Amends the United States Code with respect to judicial review
of decisions of the Interstate Commerce Commission.
Agency Recommendations
Office of Management and Budget
Approval
Department of Justice
Approval
Administrative Office of the
United States Courts
Approval
Interstate Commerce Commission
Would not recommend
disapproval
Discussion
In 1913 Congress enacted the Urgent Deficiencies Act which
established the current procedure for review of orders of the
Interstate Commerce Commission (ICC). Under the Act orders of
the ICC have been reviewed in the United States District Courts
by panels of three judges, at least one of whom must be a judge
of the court of appeals for the district. Appeals from the
three-judge court lie directly to the Supreme Court as a matter
of right. This outdated and cumbersome precedure has imposed
an unnecessary burden on Federal judicial resources at the
district, circuit and Supreme Court level.
THE WHITE HOUSE
'CTION MEMORANDUM
WASHINGTON
LOG NO.: 859
Date: December 27, 1974
Time: 7:00 p.m.
FOR ACTION: Geoff Shepard
cc (for information): Warren Hendriks
Max Friedersdorf
Jerry Jones
Phil Areeda
FROM THE STAFF SECRETARY
DUE: Date: Monday, December 30
Time: 1:00 p.m.
SUBJECT:
Enrolled Bill S. 663 - Judicial Review of Decisions of
Interstate Commerce Commission
ACTION REQUESTED:
For Necessary Action
X For Your Recommendations
-
Prepare Agenda and Brief
Draft Reply
X For Your Comments
Draft Remarks
REMARKS:
Please return to Judy Johnston, Ground Floor West Wing
approve
GCS.
BEAL I FORD LIBRARY
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
arren K. Hendriks
For the President
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 859
Date: December 27, 1974
Time: 8:00 p.m.
FOR ACTION: Geoff shepardok
CC (for information): Warren Hendriks
Max Friedersdorf
on
Jerry Jones
Phil Areeda sign
FROM THE STAFF SECRETARY
DUE: Date: Monday, December 30
Time: 1:00 p.m.
SUBJECT:
Enrolled Bill H. 663 Judicial Review of Decisions of
Interstate Commerce Commission
ACTION REQUESTED:
For Necessary Action
X For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X For Your Comments
Draft Remarks
REMARKS:
Please return to Judy Johnston, Ground Floor West Wing
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
K. R. COLE, JR.
telephone the Staff Secretary immediately.
For the President
Calendar No. 475
93D CONGRESS
SENATE
REPORT
1st Session
No. 93-500
JUDICIAL REVIEW OF DECISIONS OF THE INTERSTATE
COMMERCE COMMISSION
NOVEMBER 14, 1973.-Ordered to be printed
Mr. BURDICK, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany S. 663]
The Committee on the Judiciary, to which was referred the bill
(S. 663) to improve judicial machinery by amending title 28, United
States Code, with respect to judicial review of decisions of the Inter-
state Commerce Commission, and for other purposes, having con-
sidered the same, reports the bill favorably with amendments ¹ and
recommends that the bill as amended do pass.
PURPOSE
S. 663 would modernize the cumbersome and outdated judicial
machinery for review of orders of the Interstate Commerce Commis-
sion by placing review in the United States courts of appeals pursu-
ant to the Judicial Review Act of 1950, commonly known as the Hobbs
Act (28 U.S.C. 2341, et seq.).
Since 1913, with the adoption of the Urgent Deficiencies Act, orders
of the Commission-except ones calling solely for the payment of
money-have been reviewed in the United States district courts by
panels of three judges, at least one of whom must be a judge of the
court of appeals for the district. 28 U.S.C. 2321, 2325. Appeals from
three-judge courts lie directly to the Supreme Court as a matter of
right. S. 663 would transfer review to the circuit courts of appeals with
further review in the Supreme Court by writ of certiorari under 28
U.S.C. 1254, 2350.
Thus, the legislation will eliminate a substantial burden on the judi-
ciary by reducing the need for district judges and circuit judges to
1 The text of the amendments and their purpose appear beginning at page 7 of this
report.
99-010
2
3
assemble in special three-judge panels, by relieving the full dockets
of the Federal district courts and by removing a considerable burden
the judges assigned to these cases-particularly those from the courts
from the Supreme Court, which is now required to review by appeal
of appeals-were required to lay aside their regular duties to attend
all of these orders of the Commission.
these hearings. Moreover, each such hearing often requires one or
more of the three judges to travel to a distant location within the
SUPPORT FOR REFORM
circuit, because a full complement of three judges-one of whom must
be a circuit judge-is not regularly assigned to the city in which a
The replacement of the existing procedure with review by the
particular case was filed. As far back as 1941, Mr. Justice Frankfurter
courts of appeals, with further appeal by the discretionary writ of
described the three-judge procedure as "a serious drain upon the Fed-
certiorari to the Supreme Court, has widespread support. At hearings
eral judicial system particularly in regions where, despite modern
of the Judicial Improvements Subcommittee on July 19, 1973, spokes-
facilities, distance still plays an important part in the effective ad-
men for the Department of Justice indicated that the Department
ministration of justice. And all but the few great metropolitan areas
strongly favors passage of this bill. Also, the ICC supports transfer
are such regions." Phillips V. U.S., 312 U.S. 246, 250 (1941). The Su-
of these cases from the district courts to the courts of appeals. The
preme Court has continued to stress the costs which the three-judge
Judicial Conference of the United States has repeatedly urged such
court provisions impose upon efficient operation of the lower Federal
a change.
courts. See Florida Lime & Avocado Growers, Inc. V. Jacobsen, 362
Similar support has been expressed by the Administrative Confer-
U.S. 73, 92-93 (1960) (dissenting opinion of Frankfurter, J.) ; Kesler
ence of the United States, which in 1962 concluded that reasons for
V. Department of Public Safety, 369 U.S. 153, 156-157 (1962) ; Swift &
preserving present procedures were far less substantial than those
Co. V. Wickham, 382 U.S. 111, 128-129 (1965).
arguing in favor of utilizing courts of appeals, stressing that the
There likewise has been a comparable burden on the Supreme Court.
convening of three-judge district courts placed a heavy strain on judi-
For example, in its 1969 term, the Court disposed of 22 direct appeals
cial manpower, while direct appeals (instead of certiorari) added
from three-judge courts of decisions reviewing ICC orders. Because
needlessly to the docket of the Supreme Court. In 1968, and subse-
of the limited public importance of most of these cases, and the large
quently, the Administrative Conference renewed its recommendation.
number of cases involving constitutional or other important questions
The American Bar Association supports the proposal. The House
competing for attention, the Supreme Court decided all but four of
of Delegates at its meetings in 1970 and 1972 adopted resolutions which
the Interstate Commerce Commission cases without full briefing and
approved, in principle, legislation which would provide that ICC
oral argument. This trend has continued through the just-completed
orders "be judicially reviewable in the United States courts of appeals,
1972 term, during which the Court disposed of 26 of these appeals
with Supreme Court review by writ of certiorari, instead of in the
while requiring briefing and oral argument in only 5.
three-judge district courts with Supreme Court review on appeal
In its recent report, the Freund Committee specifically recom-
therefrom as at present
A letter in support of this bill and a
mended elimination of the three-judge court, and of direct review in
copy of the 1972 resolution are included in the record of the hearings.
cases challenging ICC orders. Their report correctly observed that
The Study Group on the Caseload of the Supreme Court, chaired
"[r]eview of ICC orders by a three-judge court with direct appeal to
by Professor Freund of Harvard Law School, also recommended that
the Supreme Court is an historical anomaly. At one time there was
judicial review of ICC cases be placed in the circuit courts under the
similar review for other agencies, but this was changed in 1950, and
Hobbs Act. In particular, they felt that review of these orders in the
review of the other agencies was transferred to the Courts of Appeals.
Supreme Court should be by writ of certiorari rather than by direct
The reasons given for making this change for the other agencies are
appeal from the three-judge district courts.
fullv applicable to the ICC." (Report of the Study Group on the Case-
load of the Supreme Court, 27 (Federal Judicial Center 1972).)
THE BURDEN OF THREE-JUDGE COURTS
PROCEDURAL IMPROVEMENTS
Among other desirable consequences, S. 663 would help relieve the
heavy burden on all three levels of the Federal judiciary. The already
While the committee believes that the benefits of S. 663 in terms of
full dockets of the Federal district courts would be reduced, and the
increased efficiency for all three levels of the Federal judicial system
need for district and circuit judges to assemble in special three-judge
are paramount, there are several additional desirable consequences of
panels in these cases would be eliminated. The burden imposed on the
the proposed bill.
district and circuit judges by the existing procedure can be amply
First, it would eliminate the problem of multiple suits challenging
demonstrated. In the fiscal year 1972, 52 three-judge courts were con-
a single ICC order in different locations before different courts. Under
vened throughout the country to review ICC orders. This was nearly
the existing venue statute, 28 U.S.C. 1398(a), a party mav bring suit
one-sixth of all the three-judge courts convened that year.2 Many of
only in the district in which he resides or has his principal office, and
2 Three-judge courts are also presently required in certain constitutional cases in which
there is no provision for consolidating multiple suits by transferring
an injunction is seught. Note, however, S. 271, which passed the Senate on June 14, 1973.
It would repeal the requirement for three-judge courts except in reapportionment cases and
them into a single district. This has resulted in delay and duplication
where expressly required by act of Congress.
of effort. (Occasionally, different district courts reviewing the same
order reach opposite results. See Denver & R.G.W.R. Co. V. Union
S.R. 500
S.R. 500
5
4
Pacific R. Co., 351 U.S. 321, 326-7 (1965). New York Central R. Co.
This venue pattern would have differed from the general pattern of
alternate venue provided in the judicial review of actions involving
V. U.S., 200 F.Supp. 944, 950 (D.C. S.D.N.Y. 1961).) The Hobbs Act,
other agencies under the Hobbs Act and other legislation.³ Under the
on the other hand, provides that the court of appeals in which the
Hobbs Act, a party seeking judicial review has a choice between filing
agency record is first filed has exclusive jurisdiction to determine the
his appeal in the circuit in which he resides or in the U.S. Circuit
validity of the agency order. (28 U.S.C. 2349(a).) In addition, 28
Court of Appeals for the District of Columbia.
U.S.C. 2112(a) requires consolidation of all petitions for review of an
The ICC has urged that venue should be restricted to the circuit
agency order in one circuit. The procedural advantage is self-evident.
in which the petitioner resides. Among other reasons, they stated that
Second, under existing procedure there is no time limitation for
"acquainting the courts of appeals of the other circuits [other than
challenging a Commission order. This would be corrected by the bill
the District of Columbia] with the work of the Interstate Commerce
since the Hobbs Act requires that a petition for review be filed within
Commission and, in turn, having the Interstate Commerce Commis-
60 days from the date of service of the agency order; 28 U.S.C. 2344.
sion subject to the review of the other circuits has very beneficial
Third, the bill would also ease the procedural burden in challenging
results." Testimony of ICC General Counsel Fritz R. Kahn, Hearings
ICC orders by requiring the agency, instead of the party seeking
on S. 663 Before the Subcommittee on Improvements in Judicial
review, to file the record of proceedings before the Commission with
Machinery of the Senate Committee on the Judiciary, 93d Congress,
the reviewing court. The added costs to the Government would not be
1st session 23 (1973). The answer to this suggestion is that optional
undue since the Federal Rules of Appellate Procedure, which took
venue will exist under the bill as reported and thus it can be expected
effect July 1, 1968, allow the agency to file a certified list of materials
that the various numbered circuits will have the opportunity to review
comprising the record rather than reproduce or file the original papers.
ICC orders. It is important to remember that a party is not forced
F.R.App.P. 17(b).
to seek review in the District of Columbia Circuit. If it is convenient
Fourth, as a further advantage, the bill would permit a quorum of
for him, he may file an application for review in the circuit in which
the court of appeals to decide a case challenging a Commission order
he resides.
when one of the assigned judges has become incapacitated; 28 U.S.C.
The ICC also suggested that there would be "a great jamup of
46(d). This is not true under the present procedure where the entire
cases" in the District of Columbia Circuit if optional venue was pro-
three-judge court must participate in the decision. Ayrshire Collieries
vided which would constitute a burden on that court. Hearings on
Corp. V. U.S., 331 U.S. 132 (1947). The present requirement becomes a
S. 663, supra, at 23. This concern seems to be without foundation since
particular hardship in the rare circumstances of the incapacitation or
the total number of ICC appeals (52 cases in both 1972 and 1973)
death of a judge after hearing but prior to decision.
constitutes less than 5 percent of the 1,360 total filings in the District
Fifth, the bill would make specific what is already assumed by liti-
of Columbia Circuit Court. Annual Report of the Director of the
gants and the courts-rules and regulations of the ICC are reviewed
Administrative Office of the U.S. Courts, Table B1 (1973). In addi-
in the same judicial tribunal which has jurisdiction to review adjudi-
tion, the District of Columbia Court Reform Act has had a significant
cated orders of that agency. American Trucking V. A.T. & S.F.R. Co.,
impact on the number of filings in the District Court for the District
387 U.S. 397 (1967). The jurisdictional provisions of existing law
of Columbia. A proportionate reduction in the number of appeals
make no reference to "rules and regulations," even though the pro-
filed in the circuit court can be expected in future years. The impact
cedure and the standards for judicial review of rules and orders differ
of those changes will be far more significant on the workload of the
materially. Despite the ICC practice of labeling the promulgation of
District of Columbia Circuit Court than any impact resulting from
a rule as an order, the bill follows the preferable course of eliminating
providing alternate venue.
uncertainty as to the nature and jurisdiction for judicial review of
The ICC has also suggested that restricting venue to the circuit
the ICC decisions.
court in which the party seeking review resides will be beneficial
It should be noted that under the bill the courts of appeals would
because the judge of that court will have knowledge of the relevant
have the power, which now exists in the three-judge courts, to issue
geographic and commercial conditions involved in the case. Of course,
interlocutory orders to stay the effect of a challenged decision pending
if the party seeking review feels that knowledge of local conditions is
review on the merits; 28 U.S.C. 2349(b). The only change would be
a significant factor, he may file his petition for review in the circuit
that applications for temporary restraining orders would be submitted
in which he resides.5
to a panel of the court of appeals instead of merely to one district
8 See, 28 U.S.C. $ 2343 (Hobbs Act) 15 U.S.C. I 717r (FPC orders under the Natural
judge. This will not amount to a hardship in practice, since comparable
Gas Act) 29 U.S.C. I 160 (NLRB orders relating to unfair labor practices) ; 15 U.S.C.
% 771 (SEC orders under the Securities Act) 15 U.S.C. 78y (SEC orders under the
applications are routinely referred to panels of the courts of appeals
Securities Exchange Act) and 49 U.S.C. $ 1468 (CAB orders).
regularly assigned to hear motions on an expedited basis.
4 In the U.S. District Court for the District of Columbia, criminal filings fell 49 percent
in 1978 from 2,608 to 1,337 and civil Blings fell 25 percent from 2,006 to 1,503. Annual
Reports of the Director of the Administrative Office of the U.S. Courts, Tables D1 and C3
(1972, 1973),
VENUE
It should be noted that, even when a petition is filed in the 9th Circuit, for example,
a judge of that circuit from California may not be familiar with the particular geography
Section 5 of the bill as originally introduced provided that suits
of Montana in question. Similar situations may arise in other circuits. It can be expected
that whenever geographical factors play a significant role in a case, both the hearing record
seeking judicial review of ICC decisions could be brought only in the
and the Commission's order will describe those facts and indicate their relevancy.
circuit where a petitioner resides or has his principal place of business.
S.R. 500
S.R. 500
6
7
After careful consideration, the committee has determined that no
the Supreme Court under S. 663 that it now has under the
exception should be made in the case of the ICC to the general pro-
Urgent Deficiencies Act. Under the bill it will have the
cedure provided for in the Hobbs Act. No strong arguments have been
authority itself to file petitions for writs of certiorari, to
forwarded by the ICC to justify treatment of appeals from their
oppose such petitions when filed against it, and to take any
orders different from that of other agencies. The committee believes
other action, including the preparation and submission of its
that parties seeking appellate review of ICC orders should have the
own briefs and the presentation of oral argument, in any cases
same choice regarding alternate venue that is available to parties
before the Supreme Court in which both it and the United
before other agencies.
States are parties. (Letter from Robert H. Bork, Solicitor
In all other material respects, the existing procedure will continue
General, to Senator Quentin N. Burdick, August 13, 1973.)
under the bill.
The committee agrees with the opinion expressed by the Solicitor
CONTROL OF LITIGATION: RESPONSIBILITIES OF THE ATTORNEY GENERAL
General that the ICC will continue to have the opportunity to present
AND RIGHTS OF THE COMMISSION
its views independently and intends that the bill have this effect.
Under this bill, actions would still be filed against the United
COSTS
States, and the Attorney General would still be responsible for man-
aging the litigation and controlling the defense of the ICC's orders.
It is not expected that this legislation will impose any additional
This accords with existing procedure applicable to the ICC and to
costs on the operations of the Government.
agencies already governed by the Hobbs Act. The ICC, of course,
would retain its right to participate independently through all stages
CONCLUSION
of judicial review, since the Hobbs Act expressly preserves the right
If review of ICC orders were placed under the Hobbs Act, litigants
of other parties to "prosecute, defend, or continue the proceeding"-
and judges would have the benefit of an established and familiar pro-
unaffected by the action or inaction of the Attorney General, 28 U.S.C.
cedure with a sizable body of interpretive case law that has served
§ 2349 (b). The act further provides the ICC with a right to petition
efficiently and with general approval for nearly 20 years.
independently for Supreme Court review.
In conclusion, the committee believes that the time has come for
The ICC in its prepared statement, submitted for the hearings on
implementation of this long-sought reform of the procedure for
this bill-and prepared prior to the receipt of the testimony of the
reviewing ICC orders. Experience under the Hobbs Act demonstrates
Department. of Justice-expressed concern about what it believed to
that this bill affords the most simple and effective method for achiev-
be the understanding of the Department with respect to the Commis-
ing this reform while preserving the salutary relationship between the
sion's right to participate independently at all stages of judicial
Attorney General and the Commission that Congress wisely provided
review. In spite of the testimony of the Justice Department indicating
in the Urgent Deficiencies Act of 1913. The committee thus strongly
that a full right to independent participation at all stages of review
supports passage of S. 663.
would continue under the bill, the General Counsel of the Commission
expressed concern about the possible implications of certain statements
AMENDMENTS
made by representatives of the Department of Justice relating to the
Solicitor General's "authorization" of agencies to petition the Supreme
1. On page 2, lines 5 through 10, strike the existing language and
Court for review in cases controlled by the Hobbs Act.
insert instead the following:
In light of this concern, Senator Burdick, chairman of the Sub-
(a) Except as otherwise provided by law, a civil action
committee on Improvements in Judicial Machinery, wrote a letter to
brought under section 1336 (a) of this title shall be brought
the Attorney General seeking further clarification of this point. At the
only in a judicial district in which any of the parties bringing
suggestion of the Attorney General, the Solicitor General himself
the action resides or has its principal office.
replied, confirming that enactment of this bill would in no way lessen
the Commission's current right to present its views to the Supreme
2. On page 3, lines 1 through 7, strike the original section 5 and
Court independently and without specific approval from either the
on page 3 renumber section 6 to read "section 5."
Solicitor General or the Department. In his reply, the Solicitor Gen-
3. On page 4, lines 5 through 11, strike the original section 7 and
eral emphasized:
on pages 4 and 5, renumber the remaining sections 8, 9, 10, 11 and 12
to read "6, 7, 8, 9 and 10."
The Interstate Commerce Commission would continue to
4. On page 4, lines 21 and 22, strike the existing language and
have the same authority to represent itself independently in
insert the following:
6 The ICC suggested, without insisting, that the Commission be the named party respond-
ent in actions seeking judicial review of ICC orders. However, the suggestion was made
SEC. 7. Sections 2324 and 2325 of title 28, United States
in connection with the Commission's strong interest in protecting the right to participate
Code, are hereby repealed.
independently in all judicial proceedings. Since this bill clearly preserves that right, as the
following text of this report indicates, the committee feels that the present and well-
understood practice of naming the United States as the party respondent should be
5. On page 5, line 2, strike the following language:
continued.
"2324. Stay of Commission's order."
S.R. 500
S.R. 500
8
9
PURPOSE OF AMENDMENTS
1. This amendment is technical in nature. It merely rewords the
actions that will continue to be brought in the district courts. Section
narrows the scope of that section to provide venue only for those
bill's original revision of section 1398 of title 28, which provides for
the venue of actions that will continue to be brought in the district
courts upon enactment of this bill. The revised language states directly
applies-civil actions involving ICC orders brought in the district
1398 (a) has been reworded to state directly the actions to which it
that the venue of any action brought under section 1336(a) in a dis-
vided, to a district in which one of the parties bringing the action pro-
courts under sec. 1336 (a). Venue is restricted, as is presently
trict court shall lie only in a judicial district in which any of the
resides or has its principal office.
parties bringing the action resides or has its principal office.
2. This amendment deletes the original section 5 of the bill, which
by 28 U.S.C. 2343.
The venue of cases transferred to the courts of appeals is governed
would have amended section 2343 of title 28 to limit venue in cases
involving judicial review of ICC orders to the circuit court in which
the Hobbs Act (28 U.S.C. 2341 (3) (A)) to include the ICC.
Section 3 amends the definition of the term "agency" contained in
one of the parties bringing the action resides or has its principal office.
Since the committee decided that alternate venue should be provided
in judicial review of these cases, no amendment to section 2343 is nec-
which specifies the classes of cases and agencies embraced by the Hobbs
Section 4 amends the provision of the Hobbs Act (28 U.S.C. 2342),
essary. The result will be to bring the treatment of venue in ICC cases
Act, by adding a new paragraph (5) and including in it all rules,
into conformity with that of other agencies under the Hobbs Act.
3. This amendment deletes section 7 of the bill. In the bill as in-
U.S.C. 2321 (which, in turn, is amended by sec. 5 of the bill).
regulations, or final orders of the Commission made reviewable by 28
troduced, that section amended section 2324 of title 28. As it applies
Section 5, containing three subsections, confers jurisdiction on the
to a stay of a Commission order, the section is unnecessary because,
no longer within the jurisdiction of the district courts.
courts of appeals over those cases which, under sec. 1 of this bill, are
under the bill, the matter will be covered by section 2349 (b) of this
title. Section 2324 is repealed by the amended section 7 of this bill.
The recommendation to repeal section 2324 was contained in similar
a diction over any proceeding to enjoin or suspend, in whole or in
Subsection (a) provides that the courts of appeals shall have juris-
prior legislation to repeal three-judge courts in ICC cases. See, S. 3597,
rule, regulation, or order of the Commission and specifies that part, such
section 7 (91st Cong.). Stays in cases brought in a district court under
Act proceedings shall be brought in the manner prescribed by the Hobbs
section 1336 of this title may be granted under existing law. See,
5 U.S.C.-705, and Scripps-Howard Radio V. FCC, 316 U.S. 4 (1942).
by an Act of Congress," refers to actions to enforce, in whole in
(28 U.S.C. 2341-2351). The clause, "Except as otherwise provided
The amendment also renumbers the present sections 8, 9, 10, 11 and
part, any order of the ICC and to enjoin or suspend, in whole or in
12 to read 6, 7, 8, 9 and 10, to conform with the deletion of the original
section 7.
in of fines, penalties, and forfeitures whose jurisdiction money remains or
collection part, any order of the Commission for the payment of or the
the district courts pursuant to sec. 1 of the bill.
4. Section 7 of the bill (the original section 9) is amended to include
the repeal of section 2324 for the reasons explained in connection with
amendment number 3 above.
sion no intention to curtail the exercise of judicial review of a Commis-
is deleted from sec. 1336(a) as they are unnecessary surplussage. There been
It should be noted that the words "set aside" and "annul" have
5. This is merely a conforming amendment and deletes, in the chap-
ter analysis, reference to section 2324 which is repealed by section 7
completely any such order.
order and the power to modify, in whole or in part, or to nullify
of the bill, as amended.
provisions of 28 U.S.C. 2321. It refers solely to actions for enforce- existing
Subsection (b) is identical to the first paragraph of the
ANALYSIS OF SECTIONS, AS AMENDED
for ment these of orders of the Commission. The jurisdiction and procedure
Section 1 amend 28 U.S.C. 1336 by restricting the jurisdiction
cases are not altered by the bill.
of the district courts to include only civil actions to enforce any order
for forming amendment, effects no change in existing law. The provision con-
provisions of 28 U.S.C. 2321 and, with the exception of a minor existing
Subsection (c) is derived from the second paragraph of the
of the Commission and civil actions to enjoin or suspend, in whole or
in part, orders of the Commission for the payment of money or the
collection of fines, penalties, and forfeitures. Judicial review of other
Commission actions (unless otherwise provided by act of Congress) is
district courts.
courts is retained for those cases whose jurisdiction remains in the
nationwide service of orders, writs, and process of the district
transferred to the circuit courts by Sec. 3 of this bill.
It should be noted that the words "set aside" and "annul" have been
deleted from sec. 1336(a) as they are unnecessary surplussage. There
designed to retain the Attorney General's existing responsibility 2323, to
Section 6 is an amendment to the first paragraph of 28 U.S.C.
is no intention to curtail either the exercise of judicial review of a
as represent amended the Government in all actions embraced by 28 U.S.C. 2321,
by sec. 5 of this bill.
Commission order or the power to modify, in whole or in part, or to
nullify completely any such order.
Section 2 is a conforming amendment to 28 U.S.C. 1398(a) which
section dealing with a stay of a Commission order, is unnecessary since 2324,
Section 7 repeals sections 2324 and 2325 of title 28. Section
specifies the district court venue of ICC judicial review actions. It
of the Hobbs Act, which these cases will be under enact- a
second ment of this bill, already covers that matter. 28 U.S.C. 2349(b). upon The
S.R. 500
section, 2325, now requires that an order of the Commission
S.R. 500
10
11
can be enjoined only by a court of three judges. Since section 5 of the
Chapter 157-INTERSTATE COMMERCE COMMISSION
bill places jurisdiction of these cases in the circuit courts, it is neces-
sary to repeal the existing language of 28 U.S.C. 2325.
ORDERS: ENFORCEMENT AND REVIEW
Sec.
Section 8 amends the table of sections of chapter 157 of title 28,
2321. [Procedure generally; process] Judicial review of Commission's orders
U.S.C.
and decisions; procedure generally; process.
Section 9 is a conforming amendment to section 205 (h) of the Motor
2322. United States as party.
Carrier Act, as amended (49 Stat. 550; 49 U.S.C. 305 (g)), designed to
2323. Duties of Attorney General; intervenors.
[2324. Stay of Commission's order.]
eliminate any reference to the three-judge district court proceedings
[2325. Injunction; three-judge court required.]
which have been abolished by section 1 of the bill and to conform the
2321. Procedure generally; process]
language to the changes affected by section 5.
The procedure in the district courts in actions to enforce, suspend,
Section 10 provides that the bill shall become effective only with
enjoin, annul or set aside in whole or in part any order of the Inter-
respect to actions filed after the last day of the first month beginning
state Commerce Commission other than for the payment of money or
after the date of enactment. Existing law shall govern all other actions
the collection of fines, penalties and forfeitures, shall be as provided in
until final disposition, including any appeals, that may be taken.
this chapter.
The orders, writs, and process of the district courts may, in the cases
CHANGES IN EXISTING Law MADE BY THE BILL AS REPORTED
specified in this section and in the cases and proceedings under sec-
In compliance with subsection (4) of rule XXIX of the Standing
where in the United States.]
tions 20, 23, and 43 of Title 49, run, be served, and be returnable any-
Rules of the Senate, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
2321. Judicial review of Commission's orders and decisions; procedure gen-
erally; process
enclosed in black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman)
(a) Except as otherwise provided by an Act of Congress, a praceed-
ing to enjoin or suspend, in whole or in part, a rule, regulation, or order
TITLE 28, UNITED STATES CODE
of the Interstate Commerce Commission shall be brought in the court
of this title.
of appeals as provided by and in the manner prescribed in chaptèr 158
§ 1336. Interstate Commerce Commission's orders
(a) Except as otherwise provided by Act of Congress, the district
(b) The procedure in the district courts in actions to enforce, in
whole or in part, any order of the Interstate Commerce Commission
courts shall have jurisdiction of any civil action to enforce, enjoin, set
aside, annul or suspend, in whole or in part, any order of the Interstate
and forfeitures, shall be as provided in this chapter.
other than for payment of money or the collection of fines, penalties,
Commerce Commission.]
(c) The orders, writs, and process of the district courts may, in the
(a) Except as otherwise provided by Act of Congress, the district
cases specified in subsection (3) and in the cases and proceedings under
courts shall have jurisdiction of any civil action to enforce, in whole
section 20 of the Act of February 4, 1887, as amended (24 Stat. 386; 49
or in part, any order of the Interstate Commerce Commission, and
U.S.C. 20), section 23 of the Act of May 16, 1942, as amended (56 Stat.
to enjoin or suspend, in whole or in part, any order of the Interstate
Commerce Commission for the payment of money or the collection
301; 49 U.S.C. 23), and section 3 of the Act of February 19, 1903, as
amended (32 Stat. 848; 49 U.S.C. 43), run, be served and be returnable
of fines, penalties, and forfeitures.
anywhere in the United States.
§ 1398. Interstate Commerce Commission's orders
2323. Duties of Attorney General; intervenors
[(a) Except as otherwise provided by law, any civil action to
[The Attorney General shall represent the Government in the
enforce, suspend or set aside, in whole or in part, an order of the Inter-
actions specified in section 2321 of this title and in actions under sec-
state Commerce Commission shall be brought only in the judicial
district wherein is the residence or principal office of any of the parties
Court of the United States upon appeal from the district courts.]
tions 20, 23, and 43 of Title 49 in the district courts, and in the Supreme
bringing such action.]
The Attorney General shall represent the Government in the actions
(a) Except as otherwise provided by law, a civil action brought
under section 1336 (a) of this title shall be brought only in a judicial
the Act of February 4, 1887, as amended (24 Stat. 386; 49 U.S.C. 20),
specified in section 2321 of this title and in actions under section 20 of
district in which any of the parties bringing the action resides or has
section 23 of the Act of May 16, 1942, as amended (56 Stat. 301; 49
its principal office.
U.S.C. 23), and section 3 of the Act of February 19, 1903, as amended
(32 Stat. 848; 49 U.S.C. 43).
S.R. 500
S.R. 500
12
[§ 2324. Stay of Commission's order
The pendency of an action to enjoin, set aside, annul, or suspend
any order of the Interstate Commerce Commission shall not of itself
stay or suspend the operation of the order, but the court may restrain
or suspend, in whole or in part, the operation of the order pending the
final hearing and determination of the action.]
[§ 2325. Injunction; three-judge court required
An interlocutory or permanent injunction restraining the enforce-
ment, operation or execution, in whole or in part, of any order of the
Interstate Commerce Commission shall not be granted unless the appli-
cation therefor is heard and determined by a district court of three
judges under section 2284 of this title.]
§ 2341. Definitions. (3)(A)
(3) "agency" means—
(A) the Commission, when the order sought to be reviewed was
entered by the Federal Communications Commission, the Federal
Maritime Commission, the Interstate Commerce Commission or the
Atomic Energy Commission, as the case may be;
*
*
*
*
*
*
§ 2342. Jurisdiction of court of appeals
(3) such final orders of the Federal Maritime Commission or the
Maritime Administration entered under chapters 23 and 23A of title
46 as are subject to judicial review under section 830 of title 46; [and]
(4) all final orders of the Atomic Energy Commission made review-
able by section 2239 of title 42[.] ; and
(5) all rules, regulations, or final orders of the Interstate Commerce
Commission made reviewable by section 2321 of this title.
*
*
*
*
*
205 (h) of the Motor Carrier Act, as amended (49 Stat. 550; 49 U.S.C.
305 (g))
(g) Any final order made under this chapter shall be subject to
the same right of relief in court by any party in interest as is now
provided in respect to orders of the Commission made under chapter 1
of this title: Provided, That where the Commission, in respect to any
matter arising under this chapter, shall have issued a negative order
solely because of a supposed lack of power, any such party in interest
may [file a bill of complaint with the appropriate District Court of
the United States, convened under section 2284 of Title 28] commence
appropriate judicial proceedings in a court of the United States under
those provisions of law applicable in the case of proceedings to enjoin,
set aside, annul, or suspend rules, regulations, or orders of the Com-
mission, and such court, if it determines that the Commission has such
power, may enforce by writ of mandatory injunction the Commission's
taking of jurisdiction.
*
S.R. 500
93D CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
1st Session
No. 93-1569
JUDICIAL REVIEW OF DECISIONS OF THE
INTERSTATE COMMERCE COMMISSION
DECEMBER 11, 1974.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. CONYERS, from the Committee on the Judiciary, submitted the
following
REPORT
[To accompany S. 663]
The Committee on the Judiciary, to which was referred the bill
(S. 663) to improve judicial machinery by amending title 28, United
States Code, with respect to judicial review of decisions of the Inter-
state Commerce Commission, and for other purposes, having consid-
ered the same, reports favorably thereon without amendment and
recommends that the bill do pass.
PURPOSE
S. 663 would modernize the cumbersome and outdated judicial
machinery for review of orders of the Interstate Commerce Commis-
sion by placing review of such orders in the United States courts of
appeals pursuant to the Judicial Review Act of 1950, commonly known
as the Hobbs Act (28 U.S.C. § 2341, et seq.).
LEGISLATIVE HISTORY
S. 663 was introduced in the other body by Senators Hruska and
Burdick on January 31, 1973. The bill was referred to the Senate
Committee on the Judiciary, and the Subcommittee on Improvements
in Judicial Machinery held a hearing on the legislation on July 19,
1973. That Subcommittee reported the bill to the full Committee on
November 13; the Committee favorably reported S. 663 with two
fundamental changes (see discussion of Senate Amendments, below)
to the Senate, which passed it without opposition on November 16.
The bill was referred to the House Committee on the Judiciary on
November 27, 1973. On December 10, 1974, the Subcommittee on Crime
held a hearing on S. 663 and reported the bill to the full Committee,
where it passed by voice vote.
38-006
2
3
NEED FOR THIS LEGISLATION
Court has often brought that Court into the review process
prematurely and placed the burden of direct appeal on the
One of the most significant tasks facing the Federal judiciary is
Supreme Court in many cases where the winnowing process
the modernization of its machinery and procedures to keep pace with
of appellate review at the circuit court level would have better
the needs of a rapidly changing and increasingly complex society.
served the interests of justice.
Sixty-eight years ago, the noted jurist Roscoe Pound told the Ameri-
A review of cases decided on direct appeal under the Urgent Deficien-
can Bar Association that the work of the courts in the Twentieth Cen-
cies Act illustrates the point. In 1941, Mr. Justice Frankfurter
tury could not be carried on with the machinery and methods of the
described the three-judge procedure as "a serious drain upon the fed-
Nineteenth Century. Before the same group in 1970, Chief Justice
eral judicial system particularly in regions where, despite modern
Warren Burger made this observation:
facilities, distance still plays an important part in the effective admin-
If you will read Pound's speech, you will see at once that
istration of justice. All but a few of the great metropolitan areas are
we did not heed his warning, and today, in the final third of
such regions." Phillips V. United States, 312 U.S. 246, 250 (1941). The
this century, we are still trying to operate the courts with
Supreme Court has continued to stress the costs which the three-
fundamentally the same basic methods, the same procedures
judge court provisions impose upon efficient operations of the lower
and the same machinery he said were not good enough in
federal courts. See Florida Lime & Avocado Growers, Inc. V. Jacobsen,
1906. In the supermarket age we are trying to operate the
362 U.S. 73, 92-93 (dissenting opinion of Frankfurter, J.) ; Kesler V.
courts with cracker-barrel corner grocer methods and equip-
Department of Public Safety, 369 U.S. 153, 156-57 (1962) Swift &
ment-vintage 1900.
Co. V. Wickham, 382 U.S. 111, 128-29 (1965). Addressing the problem
Nowhere is this assessment more applicable than in the area of
of review of ICC orders in this manner, the Study Group on the Case-
judicial review of decisions of the Interstate Commerce Commission.
load of the Supreme Court, chaired by Professor Paul Freund of the
Since 1913, with the adoption of the Urgent Deficiencies Act, orders
Harvard Law School, concluded that:
of the Commission-except those calling solely for the payment of
[r]eview of ICC orders by a three-judge court with direct
money-have been reviewed in the United States district courts by
appeal to the Supreme Court is an historical anomaly. At
panels of three judges, at least one of whom must be a judge of the
one time there was similar review for other agencies, but this
court of appeals for the circuit in which the district is located. 28
was changed in 1950, and review of the other agencies was
U.S.C. §§ 2321, 2325. Appeals from three-judge courts lie directly
transferred to the courts of appeals. 5 U.S.C. § 1032. The
to the Supreme Court as a matter of right. Over the years, these pro-
reasons given for making this change for the other agencies
visions have imposed an unnecessary burden upon Federal judicial
are fully applicable to the ICC.
resources, both at the district and circuit and Supreme Court levels.
The provision for review by the Supreme Court in its
In 1950, the Hobbs Act superseded the Urgent Deficiencies Act as to
discretion upon certiorari, as in the review of other cases
judicial review of orders of many administrative agencies, making
from circuit courts of appeals, will save the members of
decisions of the Secretary of Agriculture, the Federal Communications
the Supreme Court from wasting their energies on cases
Commission, the Federal Maritime Commission, and the Atomic
which are not important enough to call for their atten-
Energy Commission reviewable by the circuit courts of appeals, with
tion, and enable them to concentrate more fully on cases
final appeal to the Supreme Court made contingent upon the granting
which require their careful consideration. By allowing
of a petition for writ of certiorari. 28 U.S.C. §§ 1254, 2342. Similar
certiorari, the Court * * * will not any longer be required
provisions elsewhere in the Code subject orders of other agencies to
automatically to hear cases which are not of a nature to
review in like manner. The current result is that the Commission is
merit its consideration. (H. Rept. No. 2122, p. 4, and S.
the only remaining Federal agency whose decisions are routinely re-
Rep. No. 2618, p. 5, 81st Cong., 2d Sess. (1950).)
viewed by statutorily-empanelled three-judge courts with expedited
In recent years the Commission has abandoned its opposi-
appeal to the Supreme Court as a matter of right.
tion to similar treatment for its orders. Proposals for review
That the reform embodied in S. 663 carries widespread-indeed,
of ICC orders by the courts of appeal, supported by the Judi-
virtually unanimous-support cannot be subjected to question. Four
cial Conference of the United States and, SO far as we know,
years ago, a Committee of the Judicial Conference of the United States
opposed by no one, have been before Congress for several
recommended that the Conference draft and send to Congress legis-
years. Since many ICC cases are not of sufficient importance
lation doing away with three-judge courts altogether, primarily be-
to require review by the Supreme Court, it is clear that the
cause the historical justification for their importance had evaporated
unique treatment of ICC orders is a burden on the Supreme
and the burden they imposed upon judicial resources could not be
Court that can no longer be justified. Report of the Study
otherwise justified. In its Proceedings, the Conference declared that-
Group on the Caseload of the Supreme Court, pp. 27-28
not only has the work of the district and circuit courts been
(1972).
affected by the need to supply judges for three-judge courts
The records compiled by the Senate Subcommittee and the Sub-
but also the direct appeal from such courts to the Supreme
committee on Crime indicate that the Study Group's conclusion is
4
5
correct. S. 663, as passed by the Senate, carries the enthusiastic sup-
(4) According to existing procedure, see Ayrshire Collieries Corp.
port of the Judicial Conference, the Administrative Office of the
V. United States, 331 U.S. 132 (1947), the entire three-judge court
United States Courts, the Department of Justice (see Departmental
must participate in the final decision of the panel, once the determina-
Communication, below), the House of Delegates of the American
tion has been made by a district judge that the case is appropriately
Bar Association, the American Association of Railroads, the National
before a three-judge panel who then notifies the Chief judge of the cir-
Industrial Traffic League and practitioners before the Interstate Com-
cuit of his decision. If he agrees, the Chief Judge designates two other
merce Commission. In addition, the Commission itself supports the
judges to sit with the first, one of whom must be a judge of the United
general concept of appellate reform, confining its objections to the two
States Court of Appeals for the circuit. The panel members SO desig-
basic amendments added by the Senate Judiciary Committee (see
nated must then shunt aside all their other judicial work, since the
discussion of Senate Amendments, below).
hearing to which they have been assigned takes precedence and must be
Evidence given in testimony before both Houses further reveals the
assigned to the earliest practicable day, and travel to another place to
extent of the inconvenience imposed on the judiciary by this process.
decide one case. The time and expense consumed by this aspect of the
Over the last eleven fiscal years, the number of three-judge courts con-
process was attested to by Chief Judge Harry Phillips of the United
vened to hear appeals from ICC decisions has always constituted a
States Court of Appeals for the Sixth Circuit, before the Subcommit-
substantial percentage of the total number of such courts empanelled.
tee on Crime:
For example, in fiscal 1973 review of ICC orders made up one-sixth
The present procedure requires that ICC cases be heard
of all such appeals taken; in the fiscal year just completed, 51 of 249
only in the district of the residence or principal office of any
of all such cases, or over 25 percent, were SO styled-despite the fact
of the parties bringing the action. Unless the case is filed in a
that total petitions sent to three-judge courts declined 22.2 percent.
city where a circuit judge and two district judges reside, a
The extent to which expedited appeals to the Supreme Court from the
waste of judicial resources and public funds results because
decisions of these specially-constituted panels has taken precious time
of the travel time that is necessary to convene the three-
and effort away from other, more meritorious applications is com-
judge panel, frequently requiring overnight accommodations
parably clear. In its 1969 term, the Court disposed of 22 direct appeals.
and meals while in travel status.
Because of the limited public importance of most of these cases, and
To sit on a three-judge district court in Memphis, the round
the large number of cases involving constitutional and other impor-
trip traveling distance from my home in Nashville is 444
tant cases competing for attention, the Supreme Court decided all but
miles; in Knoxville, 394 miles; in Chattanooga, 248 miles;
four of the Interstate Commerce Commission cases without full brief-
in Greenville, Tennessee, 406 miles; in Louisville, Kentucky,
ing and oral argument. This trend continued through the October 1972
360 miles; and in Lexington, Kentucky, 466 miles. This
Term, just completed last year, during the Court disposed of 26 of
requires one or more days of my time away from other duties.
these appeals while requiring briefing and oral argument in only five.
Travel time is an even more acute problem in those circuits
Under the current appeals procedures, there are mechanical disad-
encompassing larger geographical areas.
vantages that further impose upon already-strained judicial personnel
and materiel:
This view was affirmed by Judge J. Skelly Wright of the D. C.
Circuit, Chairman of the Judicial Conference's Committee on Federal
(1) Under the existing venue statute, 28 U.S.C. § 1398(a) a party
Jurisdiction, in his testimony before this Committee's Subcommittee
may bring suit only in the district in which he resides or has his prin-
on Courts, Civil Liberties and the Administration of Justice earlier
cipal office, and there is no provision for consolidating multiple suits
by transferring them into a single district. Not only has this resulted
this year; Judge Wright makes an additional point:
in a multiplicity of suits challenging the same ICC order, which cannot
[T]he three judges must get together in some way. And
effectively be consolidated except through extraordinary efforts at
in many areas of the country, these three judges will live in
interjurisdictional cooperation, New York Central R. Co. V. United
different parts of the circuit SO that the first burden encoun-
States, 200 F. Supp. 944, 950 (D.C.S.D.N.Y.). of. Penn Central Merger
tered in the convening of three-judge courts is the actual
Cases, 389 U.S. 486, 497, n.2 (1968), different district courts reviewing
travel of the judges to the place where the trial will be held.
the same ICC order have reached different results. See Denver &
Then, of course, there is the problem of trying a case
R.G.W.R. Co. V. Union Pacific R. Co., 351 U.S. 321, 326-27.
with three judges. There is a problem of ruling on evidence
(2) Under existing procedure there is no time limitation for chal-
as the swift-moving events of the trial take place. Three
lenging a Commission order. The problems that inhere in this lack of
judges cannot act with the same incisiveness as the single
limitation are self-evident.
judge in making trial rulings as necessary during the trial
(3) Currently, the part seeking review carries a substantial proce-
of a fast-moving case.
dural burden as he is required to file the record of proceedings before
(5) There is a disparity between the assumptions of all concerned
the Commission with the reviewing court. This practice results in con-
with the litigation of ICC orders and present jurisdictional provisions
siderable cost and inconvenience to petitioning parties, particularly
of existing law. Although rules and regulations of the ICC are treated
those at great distances from Washington, D.C.
as reviewable in the same judicial tribunal that has jurisdiction to
7
6
The Committee could not find sufficient merit in either contention
review adjudicated orders of the agency, there is no such reference
to justify denying petitioners the option afforded them under the
made to "rules and regulations" in those provisions, even though the
terms of the Hobbs Act to file their appeals in either their home
procedure and the standards for judicial review of rules and orders
circuits or in the D. C. Circuit. In the first place, the Committee feels
differ materially.
it would merely perpetuate the "historical anomaly" that the Congress
In summary, after a careful review of testimony and evidence pre-
seeks to correct by this legislation if it accorded the ICC an exception
sented, the Committee could find no basis in fact or in law for per-
that runs counter to existing practice, without the most persuasive
petuating the archaic and cumbersome procedure for judicial review
of ICC decisions that the United States Code presently provides.
evidence. It would make little sense to legislatively "encourage" peti-
tioners to seek relief with more diversity by proscription. Secondly,
it seems inappropriate to ask the Congress to settle by legislation what
SENATE AMENDMENTS
may be a difference of opinion strictly on policy grounds. If the
The Committee is fully in accord with the two basic amendments
Commission believes that the Court of Appeals for the D. C. Circuit
to S. 663 by the Senate Judiciary Committee and concurs in the
has exceeded its proper authority in fulfilling its prescribed functions,
rationale advanced for those amendments:
the Committee suggests that the more appropriate remedy lies in
vigorous action before the bar of the Supreme Court. In short, the
Amendment to Provide for Alternative Venue
Committee cannot agree that the benefits of fixing the loci for appeal
S. 663, as originally introduced, provided that suits seeking judicial
outside the D. C. Circuit, whatever they may be, outweigh the interests
review of ICC decisions could be brought only in the circuit where
of statutory conformity and the convenience of prospective petitioners.
a petitioner resides or has his principal place of business. Because
As to the concern over the Circuit's future workload, there are two
this venue pattern would have differed from the general pattern of
indicia of the status of filings there that undercut the Commission's
alternative venue provided in the judicial review of actions involving
contention. First, the total number of ICC appeals heard by three-
other agencies under the Hobbs Act and other legislation, the Senate
judge courts during the past fiscal year pursuant to existing pro-
Committee felt compelled to amend S. 663 as introduced to satisfy the
cedures-51-would comprise less than 5 percent of the total number,
need for conformity. (See S. Rept. No. 93-500, pp. 5-7.) Under the
civil and criminal-1,243-of cases filed in the Circuit last year. Fur-
current provisions of the Hobbs Act, a party seeking judicial review
thermore, as noted above, the total number of ICC appeals filed yearly
has a choice between filing his appeal in the circuit in which he resides
has tended to remain constant over the last eleven fiscal years. Second,
or in the United States Circuit Court of Appeals for the District of
as a result of the District of Columbia Court Reform Act, civil and
Columbia. 28 U.S.C. § 2343.
criminal filings in the United States District Court for the District
Before the Subcommittee on Crime, as they had done in the other
of Columbia have dropped dramatically. Between fiscal years 1973
body, representatives of the Commission opposed the inclusion of such
and 1974, criminal cases commenced fell 37.5 percent, and civil cases
a provision for optional venue. Chairman George Stafford predicted
begun dropped 28.7 percent. A proportionate reduction in the number
"
as an inevitable result
the concentration of judicial review
of appeals filed in the circuit court can be expected in future years.
of administrative agency action" in one court, namely the D.C. Court
The impact of those changes will be far more significant on the
of Appeals, citing "the experience of the other administrative agencies,
workload of the D. C. Circuit Court than any impact resulting from
subject to Hobbs Act and similar review
"
Chairman Stafford
providing alternative venue.
further intimated that:
Finally, the Committee is not totally convinced that, even were the
[a]s a consequence, the United States Court of Appeals for
D. C. Circuit to become the preferred locus for filing appeals from
the District of Columbia Circuit has tended to become a
ICC orders, the consequences that would flow from such a situation
super administrative agency, seeming to conceive of itself as
would be as dire as the Commission has predicted. As has already
being better informed of the issues before them than the
been pointed out, one of the disadvantages of the present system is its
administrative agencies whose decisions it reviews, rather
capacity for disparity, even in the interpretation of the same order;
than limiting itself to exposing errors of law allegedly com-
clearly, the goal of the Hobbs Act is nothing if not to encourage
mitted by the agencies.
uniformity. Consequently, the Committee does not look as balefully
upon the acquisition of expertise by a particular circuit court in the
Thus, the Commission argued, the better approach to "acquainting
review of orders of administrative agencies, although it would cer-
the courts of appeals of the other circuits with the work of the Inter-
tainly abhor the usurpation of delegated executive authority by the
state Commerce Commission and, in turn, having the Interstate Com-
Third Branch, as does the Commission. Moreover, convenience is a
merce Commission subject to the review of the other circuits" is to
natural advantage of allowing appeals to be taken in the circuit that
foreclose the option altogether, despite the uniform nature of present
also enjoys the presence of the agency's headquarters. Since, if this
practice in judicial review of orders of all other Federal agencies.
bill is enacted into law, the Government would bear the cost of furn-
Another recurring fear of the Commission is that the ensuing con-
ishing the record of proceedings before the Commission, some saving
centration of litigation in the D.C. Circuit would have the effect of
might result if not all such records were required to be sent outside
"substantially increasing the workload of that Court", resulting in
this jurisdiction with agency counsel to follow.
"a backlog of cases involving the Interstate Commerce Commission."
9
8
Control Over Litigation
of the United States or, at the very least, that the Attorney General
be denied responsibility for and control over litigation involving only
The Commission has asked both houses to guarantee, through an
the Commission's orders. Objectively, it is difficult to perceive what
additional section to this bill, its right to continue to defend its ac-
more the Congress may do legislatively to protect the rights of the ICC
tions at all levels of judicial review independent of the discretion of
and aggrieved parties to be shielded from possible caprice without
the Attorney General of the United States. Under S. 663, actions would
squandering the primary intent of this legislation. The ICC may still
still be filed against the United States, and the Attorney General
intervene at any level as a matter of right and be represented by its
would still be responsible for managing the litigation and controlling
counsel; the Attorney General may not terminate a proceeding over
the defense of the ICC's orders. 28 U.S.C. §§ 2321, 2348. This accords
their objection; they may initiate, take part in or continue proceed-
with existing procedure applicable to the ICC and to agencies already
ings without regard to the action or inaction of the Attorney General;
governed by the Hobbs Act. In essence, the Commission is concerned
and they may file a petition for writ of certiorari if they SO choose.
that, through the Attorney General's-or the Solicitor General's, at
28 U.S.C. §§ 2348, 2350. The intent and meaning of the above provisions
the Supreme Court level-discretionary use of his statutory power to
could not be stated with more clarity; the Committee is compelled to
"control the interests of the Government," they may suffer a damaging
conclude that any such activity on the part of the Attorney General,
qualification of their right to independent representation which they
resulting in an abridgement of any of those statutorily-conferred
now enjoy as a matter of right. It is true that chapter 157 is materially
rights and whether witting or unwitting, would be subject to challenge
amended to vest exclusive jurisdiction for review of ICC orders in
in court. Moreover, the ICC has twice received the assurance of the De-
the circuit courts of appeals, and that this amendment may be read
partment, through the Solicitor General and the Assistant Attorney
to nullify the protections for independent defense on the part of the
for Legislative Affairs (see Letters attached to this Report), that the
ICC and other interested parties as contained in the second and fourth
independence of the Commission with respect to its ability to partici-
paragraphs of section 2323. The Committee is quick to point out, how-
pate fully and equally in all proceedings affecting its interests will not
ever, that virtually identical language appears in chapter 158, which
be tampered with in any respect. The Committee might feel constrained
pertains to the jurisdiction of the courts of appeals and the procedure
to consider such an exception if the evidence disclosed any complained-
for discretionary review by the Supreme Court. In section 2348 of that
of wrongdoing or indicated that there might be a reasonable expecta-
chapter, the section that confers the responsibility for and control of
tion of such conduct in the future; it can find neither in its record or
litigation in which the United States is a named party, says:
in the one built in the other body. To ask for protection where it is
The agency, and any party in interest in the proceeding
found not to exist or to be wanting is one thing; to ask for an ex-
before the agency whose interests will be affected if an order
ception that is not only unnecessary but may serve to defeat the pri-
of the agency is or is not enjoined, set aside, or suspended,
mary intentions behind the suggested reform is quite another.
may appear as parties thereto of their own motion and as of
CONCLUSION
right, and be represented by counsel in any proceeding to
review the order. The Attorney General may not dispose of or
If review of ICC orders were placed under the Hobbs Act, the fol-
discontinue the proceeding to review over the objection of any
lowing procedural advantages would obtain:
party or intervenor, but any intervenor may prosecute,
(1) The problem of multiple suits challenging a single ICC order
defend, or continue the proceeding unaffected by the action
in different locations before different courts, would disappear and with
or inaction of the Attorney General. emphasis added.
it the potential for disparity in results and nonuniformity. S. 663
Section 2350, pertaining to review in the Supreme Court either by
amends sections 1336(a) and 2321 of title 28, United States Code, to
certification or certiorari, further provides that
vest exclusive jurisdiction in the court of appeals in which the agency
record is first filed
[t]he United States, the agency, or an aggrieved party may
(2) Bringing the orders of the ICC under the Hobbs Act would
file a petition for a writ of certiorari.
subject petitioners to the requirement that a petition for review must
The Commission cited cases allegedly to illustrate that their right to
be filed within 60 days from the date of service of the agency order. 28
independent representation had somehow been obfuscated by Depart-
U.S.C. § 2344
ment action or inaction; the fact remains that, in every case cited, the
(3) S. 663, by SO amending the Code to include the ICC in the more
Commission was accorded its right to be heard wholly apart from
familiar review process, would ease the procedural burden that inheres
the decisions of either the Attorney General or the Solicitor General
in challenge by requiring the Commission, rather than the party seek-
as to the direction of appellate litigation. What did appear from these
ing review, to file the record of proceedings before the Commission
citations was a pattern of disagreement regarding jurisdictional pol-
with the reviewing court. The added costs to the Government would
icy and on the merits of particular claims, which varied from case
not be undue since the Federal Rules of Appellate Procedure, which
to case.
took effect July 1, 1968, allow the agency to file a certified list of mate-
Once again, the Committee weighed the merits of the Commission's
rials comprising the record rather than reproduce or file the original
suggestions against the interests to be served by the legislation as
papers. F.R.App.P.
drafted. It should be noted here that the ICC was asking that the
named party in such cases be the agency rather than the Government
H. Rept. 93-1569-2
10
11
(4) As a further advantage, the bill would permit a quorum of
judicial review of decisions of the Interstate Commerce Commission,
the court of appeals to decide a case challenging a Commission order
and for other purposes, as passed by the Senate.
when one of the assigned judges hase become incapacitated. 28 U.S.C.
Judicial review of orders of the Interstate Commerce Commission is
46 (d). As it is now, if such an occurrence takes place, the proceedings
now based on the Urgent Deficiencies Act of 1913, 28 U.S.C. 1336,
must be halted if they have proceeded beyond hearing but no decision
2321-2325. A suit to set aside such an order, except one solely for the
has yet been reached by the specially-convinced panel; and
(5) The bill would make specific what is now only assumed by all
payment of money, is filed in the district court in which plaintiff has
his residence or principal office and is heard by a panel of three judges,
litigants and courts-that the rules and regulations of the ICC are re-
viewed in the same judicial tribunal which has jurisdiction to review
at least one of whom must be a judge of the court of appeals. There is
direct appeal as a matter of right from the three-judge court to the
adjudicated orders of that agency.
More importantly, in terms of assuring the overall efficiency of prac-
Supreme Court. Since anyone adversely affected may sue to annul the
tice and the ultimate end of uniformity, litigants and judges would
order in the district in which he has his residence or principal office,
there may be multiple suits attacking the same order in different dis-
have the benefit of an established and familiar procedure with a size-
tricts. There is no express time limitation for filing such a suit. In these
able body of interpretive case law that has served efficiently and with
suits, which are against the United States, the Attorney General repre-
general approval for nearly 20 years.
To sum up, the Committee thinks it indisputable that the benefits to
sents the government; however, the Commission and any other party
be reaped by enacting this reform are as enormous as they are obvious.
in interest may intervene and be represented by their own counsel. Any
Savings in time that judges spend on the road between points alone
party to the suit may continue to prosecute or defend it regardless of
will be substantial. In any event, the hazards that the Commission
any action or nonaction of the Attorney General. (28 U.S.C. 1253, 1336,
1398, 2284, 2321-2325.)
foresees-which are speculative, at best-pale into insignificance, when
S. 663 would place review of ICC orders, except those for the pay-
placed in the balance and tested against the need for these amendments.
The Committee believes that the time has come for implementation
ment of money, under the Judicial Review Act of 1950, commonly
known as the Hobbs Act (28 U.S.C. 2341 et seq.). This Act transferred
of this long-desired elimination of what has come to be an anachronism
to the court of appeals the jurisdiction of three-judge district courts
in the law governing judicial review of administrative agency deci-
to review certain orders of the Federal Maritime Commission, the
sions. In supporting the enactment of S. 663, the Committee also in-
Federal Communications Commission, and the Department of Agri-
tends to demonstrate that the Congress, as a partner in seeing that the
culture. Notwithstanding the recommendation of the Judicial Confer-
Federal judiciary has the methods and equipment it needs to operate
ence, the 1950 statute as finally enacted did not apply to the Interstate
in the Twentieth Century, has a responsibility to exercise future vigi-
Commerce Commission. The Atomic Energy Commission was placed
lance to prevent mechanisms from becoming anachronisms.
under the Act in 1954.
COST OF THIS LEGISLATION
S. 663 would thus change the review of ICC orders in several
respects. Jurisdiction will be transferred from the district courts to
It is not expected that this legislation will impose any additional
the courts of appeals. Review by the Supreme Court will be by the
costs on the operations of the Government.
discretionary writ of certiorari under 28 U.S.C. 1254 instead of as a
matter of right. Multiple suits against the same ICC order will be
COMMITTEE APPROVAL
eliminated and there will also be a 60-day limitation for filing petitions
with the court of appeals for review of ICC orders.
By voice vote, a quorum being present, the Committee on the Judi-
The Department of Justice strongly recommends the enactment of
ciary voted on December 10, 1974 to favorably recommend S. 663 with-
this bill. The existing procedure has imposed a substantial burden on
out amendment to the full House.
the judiciary which should be eliminated.
S. 663 would help to relieve the already full dockets of the federal
DEPARTMENTAL COMMUNICATION
district courts and reduce the need for district and circuit judges to
assemble in special three-judge district court panels. Many of the
The following is attached to this Report and made a part thereof:
judges assigned to these ICC cases-particularly those from the courts
DEPARTMENT OF JUSTICE,
of appeals-were required to lay aside their regular duties to attend
Washington, D.C., December 9, 1974
these hearings, frequently in distant locations within the circuit, be-
Hon. PETER W. RODINO, Jr.,
cause a full complement of three judges was not regularly assigned to
Chairman, Committee on the Judiciary,
the city in which the cases were filed. As far back as 1941, Mr. Justice
House of Representatives,
Frankfurter described the three-judge procedure as "a serious drain
Washington, D.C.
upon the federal judicial system particularly in regions where, despite
DEAR MR. CHAIRMAN: This is in response to your request for the
modern facilities, distance still plays an important part in the effective
views of the Department of Justice on S. 663, a bill to improve judicial
administration of justice. And all but the few great metropolitan areas
machinery by amending Title 28, United States Code, with respect to
are such regions." Phillips V. United States, 312 U.S. 246, 250 (1941).
12
13
The burden on the Supreme Court is comparable. It has to review
Commission on Organization of the Executive Branch of the Gov-
a number of ICC cases that it ordinarily would decline to do under its
ernment, Report on Legal Services and Procedures, p. 6 (1955). The
certiorari jurisdiction. Because of the limited public importance of
ICC will retain its right to participate independently through all
most of these cases, as well as the large number of cases involving
stages of judicial review. In addition, the court of appeals will have
constitutional or other important questions requiring greater atten-
the same power as do the three-judge district courts to issue interlocu-
tion, the Supreme Court decides most of them without full briefing and
tory orders to stay the effect of a challenged decision pending review
oral argument.
on the merits. The only change would be that applications for inter-
The bill will have several additional desirable consequences. First,
locutory relief will have to be submitted to a three-judge panel of
it will eliminate multiple suits attacking a single ICC order brought
the court of appeals instead of merely one district judge prior to the
in different locations before different courts. The Hobbs Act pro-
empaneling of a three-judge court. In practice, this will not amount
vides that the court of appeals in which the agency record is first filed
to any hardship since comparable applications are routinely referred
has exclusive jurisdiction to determine the validity of the agency
to a panel of the court regularly assigned to hear motions on an ex-
order (28 U.S.C. 2349 Also, 28 U.S.C. 2112(a) requires con-
pedited basis.
solidation of all petitions for review of an agency order in one circuit.
Finally, if review were placed under the Hobbs Act, as the bill
Second, the bill will make applicable to the ICC the Judicial Review
provides, litigants and judges would have the benefit of an established
Act provision which requires that a petition attacking an agency
and familiar procedure with a sizable body of interpretive case law
order be filed within 60 days from its entry. (28 U.S.C. 2344.)
that has served efficiently and with general approval for nearly 20
Third, placing review of ICC orders under the Judicial Review
years. The Department believes that the time has come for imple-
Act will ease the procedural and financial burden on private parties
mentation of the long-sought reform of the procedure for reviewing
challenging ICC orders by requiring the agency, instead of the plain-
ICC orders. Our experience under the Hobbs Act demonstrates that
tiff, to file the administrative record with the reviewing court. The
this statute affords the most simple and effective method for achieving
added cost to the government will not be undue, since the new Federal
this reform while preserving the salutary relationship between the
Rules of Appellate Procedure allow the agency to file a certified list
Attorney General and the Commission which Congress wisely pro-
of the materials comprising the record in lieu of reproducing or filing
vided for in the Urgent Deficiencies Act of 1913. The Solicitor Gen-
the original papers. Fourth, a quorum of the court of appeals will be
eral, in a letter of August 13, 1973 to, Senator Burdick, specifically
able to decide a case challenging an ICC order when one of the as-
affirmed that the Interstate Commerce Commission would continue to
signed judges has become incapacitated. See 28 U.S.C. 46(d). A
have the same authority to represent itself independently in the
quorum provision does not apply to three-judge district courts, and the
Supreme Court under S. 663 that it now has under the Urgent Defi-
Supreme Court has held that the participation of fewer than three
ciencies Act.
judges renders the decision void. See Ayrshire Corp. V. United States,
The Office of Management and Budget has advised that there is no
331 U.S. 132 (1947). This becomes a particular hardship in the rare
objection to the submission of this report from the standpoint of the
circumstance of the incapacitation or death of a judge after hearing
Administration's Program.
but prior to decision.
Sincerely,
Fifth, the legislation would make specific what is already assumed
W. VINCENT RAKESTRAW,
by litigants and the courts-rules and regulations of the Commission
Assistant Attorney General.
are reviewed in the same judicial tribunal which has jurisdiction to
The Letter of the Solicitor General referred to above is reproduced
review adjudicated orders of that agency. See American Trucking V.
at this point for informational purposes:
A.T. & S.F.R. Co., 387 U.S. 397 (1967). The jurisdictional provisions
OFFICE OF THE SOLICITOR GENERAL,
of existing law make no reference to rules and regulations, even though
the procedure and the standards for judicial review of rules and orders
Washington, D.C., August 13, 1973.
differ materially. Despite the practice of the Commission to label the
Hon. QUENTIN N. BURDICK,
promulgation of a rule as an order, parties should not be left with
U.S. Senate,
uncertainty as to the nature and jurisdiction for review of the ICC's
Washington, D.C.
decisions.
DEAR SENATOR BURDICK: This is in reply to your letter of July 25,
In all other material respects, the existing procedure will continue
1973, to the Attorney General, in which you refer to statements by
under the new statute. Thus, actions will be filed against the United
former Solicitor General Griswold and Deputy Assistant Attorney
States, with the Attorney General managing and controlling the de-
General Wilson that the Solicitor General had "authorized" the Inter-
fense of the agency's order. This is in line with existing procedure
state Commerce Commission and the Federal Maritime Commission to
applicable to the ICC and to agencies already governed by the Judicial
represent themselves in the Supreme Court in cases where they were
Review Act, and simply retains a procedure that was strongly en-
taking a position contrary to that of the United States. You asked
dorsed as critical to the "efficient performance of legal services within
whether you correctly understood that their statements were not in-
the Executive Branch" by the Hoover Commission in 1955. See
tended to suggest that without such authorization those agencies could
not themselves have appeared.
14
15
Your understanding of the purport of the statements is correct. The
of transactions approved by the Commission against belated appeals.
Interstate Commerce Commission would continue to have the same
Under present law there is no such specific time limit, apart from the
authority to represent itself independent in the Supreme Court under
general statutes of limitations and concept of laches, within which re-
S. 663 that it now has under the Urgent Deficiencies Act. Under the bill
view actions must be brought. In addition, providing for review in the
it will have the authority itself to file petitions for writs of certiorari,
courts of appeals would have. the further effect of making applicable
to oppose such petitions when filed against it, and to take any other
the provisions requiring the consolidation of multiple suits against a
action, including the preparation and submission of its own briefs and
single order in one court and for the agency to provide the administra-
the presentation of oral argument, in any cases before the Supreme
tive record for the reviewing court. Under present law, there is no
Court in which both it and the United States are parties.
requirement that multiple suits be consolidated, and the burden is on
Sincerely,
the complainant to furnish the administrative record to the court.
ROBERT H. BORK,
For these and other reasons, the Commission believes that judicial
Solicitor General.
review in the courts of appeals would be an improvement over the
existing procedure, and it is for this reason that we have long sup-
STATEMENT OF GEORGE M. STAFFORD, CHAIRMAN, INTERSTATE
ported the purposes of bills such as S. 663. Nevertheless, we are op-
COMMERCE COMMISSION, DECEMBER 10, 1974
posed to S. 663 as approved by the Senate and would urge its defeat
unless materially revised.
Mr. Chairman, members of the subcommittee, I am pleased to ap-
pear here today to offer the Commission's views on S. 663, as approved
CONTROL OF LITIGATION
by the Senate. The bill would amend Title 28 of the United States
Code, with respect to judicial review of decisions of the Interstate
There are two specific features of S. 663 as approved by the Senate
Commerce Commission. It passed the Senate on November 16, 1973.
that occasion objections to the bill. As you are aware, section 8 of the
Presently, judicial review of Interstate Commerce Commission or-
Judicial Review Act,4 as amended, provides that "The Attorney Gen-
ders is before U.S. district courts of three judges, at least one of whom
eral is responsible for and has control of the interests of the Govern-
must be a circuit judge, with the decisions of these three-judge courts
ment in all court proceedings under this chapter," a provision which
reviewable by the Supreme Court by appeal, rather than by writ of
does not exist in the judicial review statutes presently applicable to
certiorari.¹ In general, S. 663. would change existing law to provide
the Commission. Present law provides that the United States shall be
that the Commission's orders shall be reviewed by the U.S. courts of
named as defendant,6 a provision which substantially corresponds to
appeals, and that the courts of appeals' decisions, in turn, shall be re-
language in the Judicial Review Act to the same effect, and that "the
viewable by the Supreme Court by the discretionary writ of cer-
Attorney General shall represent the Government in the actions."
tiorari rather than by direct appeal as of right. More specifically, S.
Our concern is that the first sentence of section 2348 is susceptible of
663 would subject the review of Interstate Commerce Commission
the construction that the Commission would be precluded from taking
orders to the Judicial Review Act of 1950 (Hobbs Act),2 which cur-
a position in a case independent of and separate from that of the
rently applies to review of decisions of certain other Federal agencies,
Department or, under section 2350, filing a petition for a writ of cer-
including the Federal Communications Commission, Federal Mari-
tiorari on its own.
time Commission and Atomic Energy Commission.
This area is of the utmost importance to the Commission for in a few
Before discussing specific provisions of S. 663, I should like to note
but significant cases the Department has declined to defend the Com-
that the Commission generally is in accord with the concept that its
mission's orders in court. Sometimes this results from the intervention
decisions be reviewed by the courts of appeals. In fact, revision of the
of some other Federal agency in opposition to the Commission's posi-
law has been recommended to the Congress by the Commission since
tion. A recent example of this was the recent Supreme Court case of
1963. We fully agree with Chief Justice Burger and others who have
Atchison, T. & S.F. Ry. Co. V. Wichita Board of Trade,⁸ where the
commented that the three-judge court procedure is cumbersome and
Secretary of Agriculture opposed the Commission's order and the
inefficient, and would add that a court of appeals is clearly a more
Department elected to remain neutral at the district court level. In the
appropriate forum for review of our orders than is a three-judge
Supreme Court, the Department did support the Commission in part,
district court. Not only is the court of appeals the forum for review
but not as to the merits of the agency's order.
of orders of nearly all other Federal administrative agencies, but also
On other occasions, the Justice Department's reluctance to join in
various features of that review would correct what are presently prob-
the defense of Commission orders stems from the fact that the Depart-
lems in the three-judge district court procedure. For example, S. 663
ment itself has participated in the Commission proceeding and does
would require that judicial review proceedings be instituted within 60
not agree with the Commission's ultimate decision. This may result
days after entry of the Commission's order, thereby providing a
reasonable opportunity to seek review while protecting the integrity
3 28 U.S.C. 2112.
28 U.S.C. 2348.
28 U.S.C. 2322.
1 28 U.S.C. 1253, 1336, 1398, 2284, and 2321-25.
28 U.S.C. 2344.
2 Ch. 158, Title 28, 28 U.S.C. 2341 et seq.
28 U.S.C. 2323.
8
Nos. 72-214 and 72-433, Oct. Term 1972, decided June 18, 1973.
16
17
from the Department's representation of the Government as a partici-
to the position advanced by the Commission's counsel. In such cases,
pant in the transportation process.9
the role of the Department of Justice is largely passive and leaves to
But by far the most troublesome area in which the Justice Depart-
the Commission's counsel the responsibility for fashioning and pre-
ment may decline to defend Commission orders is where there are dif-
senting the written as well as oral arguments before the reviewing
ferences of opinion on questions of policy and statutory construction.
courts. At the Supreme Court level, the Solicitor General assumes
Because carriers acting pursuant to the Commission's orders are gen-
a more active role in the litigation in cases where the Department and
erally immune from direct attack under antitrust laws, many of these
the Commission are in agreement, but even here there has previously
differences in recent years have involved the issue of competition and
been no question that the Commission has an independent right to
its evaluation by the Commission in such complex areas as intermodal
pursue its own course of action in cases where there are differences
rate competition and railroad mergers.10
between the two agencies.
It follows that the public interest is best served by guaranteeing the
At this point I hand the Subcommittee a copy of a letter on S. 663
Commission the right which it presently has to defend its actions inde-
by the Honorable Albert B. Maris, Senior U.S. Circuit Judge of the
pendent of the views of the Department of Justice. To accomplish this,
Court of Appeals for the Third Circuit. Judge Maris, as you will
it is necessary to amend S. 663. The amendment should make it clear
recall, was previously a member of the Judicial Conference and has
that the Commission has the right to defend its actions independent of
been involved in questions of judicial review of agency orders for
the Department of Justice. This could be done by adding a new section
many years. The substance of his suggestion here is that the Commis-
to the bill which would amend the first sentence of section 2348 of title
sion should be named as respondent in any action, with a right to
28, United States Code, to read
intervene reserved to the Attorney General. This is, of course, the
The Attorney General is responsible for and has control of
opposite of present Commission practice and that authorized under
the interests of the Government in all court proceedings under
the Judicial Review Act, where the United States is named as defend-
this chapter, except for a proceeding under paragraph (5) of
ant or respondent and the agency involved is permitted to intervene.
section 2342 of this Title.
Judge Maris' view is that the agency whose orders are under attack
is the real respondent in interest, while the Attorney General repre-
In the past, the Department of Justice has opposed provisions sim-
sents broader policy interests of the Government. While we do not
ilar to the amendment we propose here on the ground that such
here insist upon the specific amendment Judge Maris advocates, we
changes would, in the Department's view, alter the Attorney General's
do feel that his remarks underscore the importance of permitting the
responsibility for primary control of this class of litigation. This, how-
Commission to pursue a different course of action from that of the
ever, disregards what in fact is the existing procedure. As a practical
Attorney General at all stages of court review.
matter, the Attorney General does not now manage or control the de-
I am aware of the letter of Solicitor General Bork, referred to on
fense of Commission orders. On the contrary, the almost universal
practice is the defense of the Commission's orders to be assigned to an
pages 6 and 7 of the Senate Report (No. 93-500) accompanying the
attorney in the Office of the General Counsel of the Commission. The
bill, in which he assures us of our right of independent access to the
Supreme Court. However, as recently as this past August, one year
answers, briefs and the other pleadings in most of the actions chal-
after Mr. Bork's letter, Assistant Attorney General Robert G. Dixon,
lenging the validity of Commission orders do bear the name of the
Jr., in charge of the Department's Office of Legal Counsel, in a speech
respective United States Attorneys and that of the Assistant Attor-
ney General in charge of the Antitrust Division and his attorneys.
to the American Bar Association in Honolulu stated, and I quote:
However, this reflects only the fact that ordinarily the Department of
The Department of Justice and OMB have favored cen-
Justice joins in the defense of the Commission's orders and subscribes
tralization of litigation in the Attorney General. This insures
consistency of government positions on similar issues and
Thus, in a recent district court case, United States V. United States and Interstate
provides a pool of experienced litigators. Thus Congress has,
Commerce Commission, Civil Action No. 2624-70, D.D.C., decided December 12, 1971,
the United States unsuccessfully pursued a claim against certain railroads before the
in Title 28, placed litigation for the United States under the
Commission, and, on judicial review, declined in its role as statutory defendant to defend
the Commission's order. The Commission ultimately won this case.
control of the Attorney General except as otherwise author-
10 A case in point is Louisville & Nashville R.R. Co. V. United States and Interstate
ized by law. 28 U.S.C. 516-518. Of course, there always have
Commerce Commission (Ingot Molds Case), 392 U.S. 571 (1968). In that case the Com-
mission held that the National Transportation Policy admonition that the inherent advan-
been a certain number of agencies authorized to litigate cer-
tages of carriers be preserved enabled it to invalidate a proposed railroad rate reduction
that would have undermined a bargeline cost advantage, when measured by fully dis-
tain matters on their own, but normally not in the Supreme
tributed cost. The Department confessed error and contended that this constituted a
Court,16 and others who would like to do SO.
holding up of a rate to a particular level to protect the traffic of another mode of trans-
portation, in violation of section 15a(3) of the Interstate Commerce Act. The Supreme
Court sustained the position of the Commission over the continued objection of the
11 28 U.S.C. 2322, 2323. 2344.
Department of Justice.
16 Under existing statutes. some independent regulatory agencies have been granted
In United States V. United States and Interstate Commerce Commission (Northern
limited litigation authority. For example, the SEC and the FPC, in addition to possessing
Lines Merger Case), 396 U.S. 49 (1970), the Commission authorized the merger of the
subpoena enforcement power, are empowered to bring an action in any federal district
Great Northern, Northern Pacific and Burlington Railroads. upon finding, among other
court to enjoin practices in violation of its governing statutes or any of its rules or
things, that the economies and efficiencies the merger would yield would offset any dis-
regulation, 15 U.S.C. 77t(b), 79r 16 U.S.C. 825m, 825f(c)
advantages resulting from the loss of competition among the carriers. A sult to set aside
On the other hand, Supreme Court litigation is concentrated in the Solicitor General.
the Commission's order was brought by the Department, which also pressed for a stay
One exception is the authority given to the Comptroller General to enforce the Presidential
of consummation of the transaction pending judicial review. The Supreme Court again
Election Campaign Fund Act of 1971, including review in the Supreme Court. 21 U.S.C.
sustained the position of the Commission.
9010(d). Also, although the statutory basis is not altogether clear, (see 28 U.S.C. 2323).
as a matter of practice, the ICC has since 1913 represented itself before the Supreme
Court.
H. Rept. 93-1569-3
18
19
Because of the foregoing attitude, the Commission urges adoption
responses to the Nation's needs if we had the benefit of the reactions of
of the specific statutory direction that we suggest.
the several Courts of Appeals rather than if we were accountable, for
all practical purposes, to merely the United States Court of Appeals
OPTIONAL VENUE
for the District of Columbia Circuit.
As you know, under existing law, suit to review Commission actions
The suggestion advanced by a Washington lawyer prominent in
can be brought only in the jurisdiction in which the petitioner resides
practice before the Interstate Commerce Commission and partner in
or has his principal office. As approved by the Senate, S. 663 would
the law firm representing the National Industrial Traffic League that,
change this and also allow for optional venue in the United States
unless there is optional venue in the District of Columbia, the carriers
Court of Appeals for the District of Columbia.
enjoy a litigation advantage that the shippers are denied, is wholly
When we testified before the Subcommittee of the Senate Judiciary
unfounded. There is only one class I railroad based here, and no
Committee, we opposed such an approach, and the Department of
truck or barge line, but there are scores of merchants or wholesalers
Justice concurred. It was on that basis that we supported the legisla-
that might be involved in litigation arising out of I.C.C. orders. More-
tion. However, when the Committee reported the bill and as the Sen-
over, there are far more trade associations domiciled in Washington
ate passed it, the optional venue provision was reinstated.
that include shippers in their membership than there are having car-
The experience of the other administrative agencies, subject to
rier members; indeed, the Yellow Pages of the telephone directory go
Hobbs Act and similar review, has been that well above half of their
on for eight pages of listings, from the Aerospace Industries Associa-
court cases have been brought in the Washington, D.C. Circuit Court
tion of America, Inc., to Zero Population Growth, Inc., both of which
of Appeals. The Federal Maritime Commission in a ten year period,
happen to be quite active in the transportation area. Therefore, access
from 1965 to 1974, had 52 actions brought assailing the validity of its
to the Washington, D.C. courts even in the absence of an optional
orders. Of these 37 were brought in the United States Court of Appeals
venue provision is no less available to the shippers than the carriers.
for the District of Columbia Circuit. The Federal Communications
Before closing, I would like to make one final observation with re-
Commission in a four year period, 1970 to 1973, was involved in 299
spect to optional venue. The volume of litigation arising from orders
such suits, 237 of them maintained in the District of Columbia. The
of the Commission is large. For example, in the last three years, 328
Atomic Energy Commission during the last year had 18 actions in-
suits have been filed in various district courts. Of these, 19 have been
stituted against its order; of these 13 were brought before the United
filed in the District of Columbia. Based upon the experience of other
States Court of Appeals for the District of Columbia Circuit.
agencies, it seems reasonable to predict that if optional venue is re-
As a consequence, the United States Court of Appeals for the Dis-
tained a majority of suits involving Commission orders would be filed
trict of Columbia Circuit has tended to become a super administrative
in the D.C. Circuit Court of Appeals, thus substantially increasing
agency, seeming to conceive of itself as being better informed of the
the workload of that Court. It is easy to envision that this increased
issues before them than the administrative agencies whose decisions it
volume would result in a backlog of cases involving orders of the In-
reviews, rather than limiting itself to exposing errors of law allegedly
terstate Commerce Commission.
committed by the agencies.
Therefore, we oppose S. 663 unless it is amended to delete optional
I have no doubt that the judges of the Court of Appeals for this
venue in the District of Columbia.
Circuit are no less concerned or conscientious than those of any other
We appreciate the opportunity to present these views today. We are
Circuit, and neither do I doubt that the result I perceive was not one
concerned about the Court review of Commission orders and believe
of their deliberate devising.
that, with the coming of various moves to abolish the three-judge dis-
Rather, I conceive of it as an inevitable result of the concentration
trict courts generally, this is a particularly good time to try once again
of judicial review of administrative agency action in any single court.
to put review of our orders where it belongs. Accordingly, we would
I think there is merit in having all of the Circuit Courts of Appeals
support S. 663, if the amendments we have recommended herein are
participate in the task of reviewing the decisions of the administrative
adopted.
agencies; I think there is virtue in encouraging divergent approaches
That concludes my formal statement. I and those members of the
to the resolution of the problems the administrative agencies address,
Commission's staff who are with me will attempt to answer any ques-
even if at times the courts' opinions smack of a local rather than a na-
tions you may have.
tional flavoring and if at other times the conflicts between them pose
uncertainty and confusion, at least until the Supreme Court passes on
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
the relevant question.
In compliance with clause 3 of rule XIII of the Rules of the House
In turn, I think we who are identified with the administrative agen-
cies would better be able to perform our tasks, be more effective in our
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted
21
20
is enclosed in black brackets, new matter is printed in italics, existing
Part VI.-PARTICULAR PROCEEDINGS
law in which no change is proposed is shown in roman) :
TITLE 28, UNITED STATES CODE
Chapter 157.-INTERSTATE COMMERCE COMMISSION ORDERS;
ENFORCEMENT AND REVIEW
*
Sec.
[2321. Procedure generally ; process.
Part IV.-JURISDICTION AND VENUE
2321. Judicial review of Commission's orders and decisions; procedure
generally; process.
2322. United States as party.
2323. Duties of Attorney General intervenors.
Chapter 85.-DISTRICT COURTS; JURISDICTION
2324. Stay of Commission's order.
2325. Injunction; three-judge court required.
*
$ 2321. Procedure generally; process.
§ 2321. Judicial review of Commission's orders and decisions; procedure gener-
§ 1336. Interstate Commerce Commission's orders.
ally; process.
(a) Except as otherwise provided by Act of Congress, the district
(a) Except as otherise provided by an Act of Congress, a proceeding
courts shall have jurisdiction of any civil action to enforce, [enjoin,
to enjoin or suspend, in whole or in part, a rule, regulation, or order of
set aside, annul or suspend,] in whole or in [any] part, any order
the Interstate Commerce Commission shall be brought in the court of
of the Interstate Commerce Commission, and to enjoin or suspend,
appeals as provided by and in the manner prescribed in chapter 158 of
in whole or in part, any order of the Interstate Commerce Commission
this title.
for the payment of money or the collection of fines, penalties, and
(b) The procedure in the district courts in actions to enforce,
forfeitures.
[suspend, enjoin, annul or set aside] in whole or in part, any order of
(b) When a district court or the Court of Claims refers a question
the Interstate Commerce Commission other than for The payment
or issue to the Interstate Commerce Commission for determination,
of money or the collection of fines, penalties, and forfeitures, shall be
the court which referred the question or issue shall have exclusive
as provided in this chapter.
jurisdiction of a civil action to enforce, enjoin, set aside, annul, or
(c) The orders, writs, and process of the district courts may, in the
suspend, in whole or in part, any order of the Interstate Commerce
cases specified in this section subsection (b) and in the cases and
Commission arising out of such referral.
proceedings under sections 20, 23, and 43 of Title 49,] section 20 of
(c) Any action brought under subsection (b) of this section shall
the Act of February 4, 1887, as amended (24 Stat. 386; 49 U.S.C. 20)
be filed within 90 days from the date that the order of the Interstate
section 23 of the Act of May 16, 1942, as amended (56 Stat. 301; 49
Commerce Commission becomes final.
U.S.C. 23), and section 3 of the Act of February 19, 1903, as amended
*
(32 Stat. 848; 49 U.S.C. 43), run, be served and be returnable any-
§ 1398. Interstate Commerce Commission's orders.
where in the United States.
(a) Except as otherwise provided by law, any civil action to enforce,
suspend or set aside in whole or in part an order of the Interstate
§ 2323. Duties of Attorney General; intervenors.
Commerce Commission shall be brought only in the judicial district
The Attorney General shall represent the Government in the actions
wherein is the residence or principal office of any of the parties bring-
specified in section 2321 of this title and in actions under sections 20,
ing such action.
(a) Except as otherwise provided by law, a civil action brought
23, and 43 of Title 49, in the district courts, and in the Supreme Court
of the United States upon appeal from the district courts. section 20
under section 1336 (a) of this title shall be brought only in a judicial
district in which any of the parties bringing the action resides or has
of the Act of February 4, 1887, as amended (24 Stat. 386; 49 U.S.C.
20), section 23 of the Act of May 16, 1942, as amended (56 Stat. 301,
its principal office.
(b) A civil action to enforce, enjoin, set aside, annul, or suspend,
49 U.S.C. 23), and section 3 of the Act of February 19, 1903, as
in whole or in part, an order of the Interstate Commerce Commission
amended (32 Stat. 848; 49 U.S.C.43).
made pursuant to the referral of a question or issue by a district court
The Interstate Commerce Commission and any party or parties in
or by the Court of Claims, shall be brought only in the court which
interest to the proceeding before the Commission, in which an order
referred the question or issue.
or requirement is made, may appear as parties of their own motion and
as of right, and be represented by their counsel, in any action involving
the validity of such order or requirement or any part thereof, and the
interest of such party.
22
23
Communities, associations, corporations, firms, and individuals
(4) all final orders of the Atomic Energy Commission made
interested in the controversy or question before the Commission, or
reviewable by section 2239 of title 42[.]; and
in any action commenced under the aforesaid sections may intervene
(5) all rules, regulations, or final orders of the Interstate Com-
in said action at any time after commencement thereof.
merce Commission made reviewable by section 2321 of this title.
The Attorney General shall not dispose of or discontinue said action
Jurisdiction is invoked by filing a petition as provided by section 2344
or proceeding over the objection of such party or intervenor, who may
of this title.
prosecute, defend, or continue said action or proceeding unaffected by
*
*
the action or nonaction of the Attorney General therein.
[§ 2324. Stay of Commission's order.
[The pendency of an action to enjoin, set aside, annul, or suspend
SECTION 205 OF THE MOTOR CARRIER ACT
any order of the Interstate Commerce Commission shall not of itself
stay or suspend the operation of the order, but the court may restrain
ADMINISTRATION
or suspend, in whole or in part, the operation of the order pending the
SEC. 205. (a) *
final hearing and determination of the action.
*
*
*
*
[§ 2325. Injunction; three-judge court required.
(g) Any final order made under this part shall be subject to the
[An interlocutory or permanent injunction restraining the enforce-
same right of relief in court by any party in interest as is now
ment, operation or execution, in whole or in part, of any order of the
provided in respect to orders of the Commission made under part I:
Interstate Commerce Commission shall not be granted unless the appli-
Provided, That, where the Commission, in respect to any matter
cation therefor is heard and determined by a district court of three
arising under this part, shall have issued a negative order solely
judges under section 2284 of this title.
because of a supposed lack of power, any such party in interest may
[file a bill of complaint with the appropriate District Court of the
Chapter 158.-ORDERS OF FEDERAL AGENCIES; REVIEW
United States, convened under section 2284 of title 28 of the United
*
*
*
*
States Code,] commence appropriate judicial proceedings in a court
§ 2341. Definitions.
of the United States under those provisions of law applicable in the
As used in this chapter-
case of proceedings to enjoin or suspend rules, regulations, or orders
(1) "clerk" means the clerk of the court in which the petition
of the Commission and such court, if it determines that the Commis-
for the review of an order, reviewable under this chapter, is filed
sion has such power, may enforce by writ of mandatory injunction
(2) "petitioner" means the party or parties by whom a petition
the Commission's taking of jurisdiction.
to review an order, reviewable under this chapter, is filed; and
*
*
*
*
*
*
(3) "agency" means—
(A) the Commission, when the order sought to be re-
viewed was entered by the Federal Communciations Com-
mission, the Federal Maritime Commission, the Interstate
Commerce Commission, or the Atomic Energy Commission,
as the case may be;
(B) the Secretary, when the order was entered by the
Secretary of Agriculture; and
(C) the Administration, when the order was entered by
the Maritime Administration.
§ 2342. Jurisdiction of court of appeals.
The court of appeals has exclusive jurisdiction to enjoin, set aside,
suspend (in whole or in part), or to determine the validity of-
(1) all final orders of the Federal Communications Commission
made reviewable by section 402 (a) of title 47;
(2) all final orders of the Secretary of Agriculture made under
chapters 9 and 20A of title 7, except orders issued under sections
210 (e), 217a, and 499g (a) of title 7;
(3) such final orders of the Federal Maritime Commission or
the Maritime Administration entered under chapters 23 and 23A
of title 46 as are subject to judicial review under section 830 of
title 46; [and]
S. 663
Ainety-third Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-first day of January,
one thousand nine hundred and seventy-four
An Act
To improve judicial machinery by amending title 28, United States Code, with
respect to judicial review of decisions of the Interstate Commerce Commission
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That section 1336 (a)
of title 28, United States Code, is amended to read as follows:
"(a) Except as otherwise provided by Act of Congress, the district
courts shall have jurisdiction of any civil action to enforce, in whole
or in part, any order of the Interstate Commerce Commission, and to
enjoin or suspend, in whole or in part, any order of the Interstate
Commerce Commission for the payment of money or the collection of
fines, penalties, and forfeitures."
SEC. 2. Section 1398(a) of title 28, United States Code is amended
to read as follows:
"(a) Except as otherwise provided by law, a civil action brought
under section 1336(a) of this title shall be brought only in a judicial
district in which any of the parties bringing the action resides or has
its principal office.
SEC. 3. Section 2341 (3) (A) of title 28, United States Code, is
amended by inserting following "Federal Maritime Commission," the
words "the Interstate Commerce Commission,".
SEC. 4. Section 2342 of title 28, United States Code, is amended as
follows:
(a) In the paragraph designated "(3)", following the semicolon,
strike "and";
(b) In the paragraph designated "(4)", strike the period and insert
in lieu thereof a semicolon followed by the word "and";
(c) Add a new paragraph "(5)" as follows:
"(5) all rules, regulations, or final orders of the Interstate Com-
merce Commission made reviewable by section 2321 of this title."
SEC. 5. Section 2321 of title 28, United States Code, is amended to
read:
"§ 2321. Judicial review of Commission's orders and decisions;
procedure generally; process
"(a) Except as otherwise provided by an Act of Congress, a pro-
ceeding to enjoin or suspend, in whole or in part, a rule, regulation, or
order of the Interstate Commerce Commission shall be brought in the
court of appeals as provided by and in the manner prescribed in
chapter 158 of this title.
"(b) The procedure in the district courts in actions to enforce, in
whole or in part, any order of the Interstate Commerce Commission
other than for payment of money or the collection of fines, penalties,
and forfeitures, shall be as provided in this chapter.
"(c) The orders, writs, and process of the district courts may, in
the cases specified in subsection (b) and in the cases and proceedings
under section 20 of the Act of February 4, 1887, as amended (24 Stat.
386; 49 U.S.C. 20), section 23 of the Act of May 16, 1942, as amended
(56 Stat. 301; 49 U.S.C. 23), and section 3 of the Act of February 19,
1903, as amended (32 Stat. 848; 49 U.S.C. 43), run, be served and be
returnable anywhere in the United States."
SEC. 6. The first paragraph of section 2323 of title 28, United States
Code, is amended to read as follows:
"The Attorney General shall represent the Government in the
actions specified in section 2321 of this title and in actions under
section 20 of the Act of February 4, 1887, as amended (24 Stat. 386;
49 U.S.C. 20), section 23 of the Act of May 16, 1942, as amended (56
S. 663-2
Stat. 301; 49 U.S.C. 23), and section 3 of the Act of February 19, 1903,
as amended (32 Stat. 848; 49 U.S.C. 43)."
SEC. 7. Sections 2324 and 2325 of title 28, United States Code, are
hereby repealed.
SEC. 8. The table of sections of chapter 157 of title 28, United States
Code, is amended to read:
"Chapter 157.-INTERSTATE COMMERCE COMMISSION
ORDERS; ENFORCEMENT AND REVIEW
"Sec.
"2321. Judicial review of Commission's orders and decisions; procedure gen-
erally; process.
"2322. United States as party.
"2323. Duties of Attorney General; intervenors.".
SEC. 9. The proviso in section 205 (g) of the Motor Carrier Act, as
amended (49 Stat. 550; 49 U.S.C. 305(g)), is amended by striking
"file a bill of complaint with the appropriate District Court of the
United States, convened under section 2284 of title 28 of the United
States" and inserting in lieu thereof "commence appropriate judicial
proceedings in a court of the United States under those provisions of
law applicable in the case of proceedings to enjoin or suspend rules,
regulations, or orders of the Commission".
SEC. 10. This Act shall not apply to any action commenced on or
before the last day of the first month beginning after the date of
enactment. However, actions to enjoin or suspend orders of the Inter-
state Commerce Commission which are pending when this Act becomes
effective shall not be affected thereby, but shall proceed to final
disposition under the law existing on the date they were commenced.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.