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THOMSON PHOSPHATE CO. v. ATLANTIC COAST LINE R. CO

April 1, 1968

Thomson Phosphate Company, Plaintiff,
v.
Atlantic Coast Line R. Co. et al. Defendants; Atlantic Coast Line R. Co. et al., Plaintiffs, v. United States of America and Interstate Commerce Commission, Defendants


Mansfield, D.J.


The opinion of the court was delivered by: MANSFIELD

MANSFIELD, D.J.:

Defendants ("Railroads" herein) move for summary judgment setting aside a reparation order of the Interstate Commerce Commission, Dkt. No. 32065, Thomson Phosphate Co. v. Atlantic Coast Line R.R., 303 I.C.C. 25 (Div. 2, 1958), 311 I.C.C. 315 (Div. 3, 1960), awarding plaintiff Thomson Phosphate Co. ("Thomson" herein) $8,889.76 with interest on account of unjust and unreasonable rates assessed on about 636 shipments of ground phosphate rock moved to more than 100 destinations in Illinois during the period from April, 1945 to December, 1950.

 This action began on August 22, 1962, as a suit by Thomson against the Railroads to enforce the Commission's reparation order. By stipulation it was held in abeyance pending the determination of an action brought by the Railroads against the Government and the Commission on September 6, 1961 in the District Court for the Middle District of Florida to review the Commission's order. A decision by that court in favor of the Railroads upholding their defense of statute of limitations, 213 F. Supp. 199 (1963), appealed solely on the ground of lack of jurisdiction, 334 F.2d 46 (5th Cir. 1964), was ultimately reversed on this ground by the Supreme Court, which held that the Railroads could seek review in this Court where Thomson's enforcement action was pending. 383 U.S. 576, 86 S. Ct. 1000, 16 L. Ed. 2d 109 (1966). On March 21, 1967 a separate cross-complaint filed in this Court by the Railroads was consolidated with the enforcement action brought by Thomson. 41 F.R.D. 522 (1967). By stipulation the disposition of Thomson's enforcement action will be governed by the outcome of the Railroads' cross-petition for review of the Commission's order.

 The Railroads urge on this motion for summary judgment that the Commission erred in not finding Thomson's claims barred by the two-year statute of limitations in § 16(3) of the Interstate Commerce Act, 49 U.S.C.A. § 16(3) (1964 ed.) *fn1" because various defects in informal complaint procedure under I.C.C. Rule 25, 49 C.F.R. § 1.25, render inapplicable subdivision (f) of that Rule (Rule 25(f)), which provides that upon the termination of an informal proceeding, a complainant has six months within which either to file a formal complaint or resubmit an informal complaint on "an additional fact basis" and that such filing or resubmission will be deemed to relate back to the date of original filing. *fn2"

 The Commission opposes on the grounds that its interpretation of its Rule 25, being neither arbitrary nor clearly erroneous, is controlling, see Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945), and that its findings and conclusions are supported by substantial evidence.

 On May 20, 1946, Thomson filed Informal Complaint 174417 ("Informal Complaint" herein) alleging that rates on ground phosphate rock from Prairie, Florida to all stations in Illinois during the previous two years were unjust and unreasonable. The purpose of the Commission's informal docket procedure is to reduce the burden of litigation involved in proceedings on the formal docket by providing for the negotiation and settlement of claims under Commission auspices. An informal complaint is processed by means of correspondence among the parties and the Commission staff, which can be handled by a shipper or carrier without the expense involved in a formal presentation to the Commission. The participation of the Commission staff in this process encourages the parties to make a diligent attempt to achieve a settlement, and agreement is reached in most cases.

 By letter of December 4, 1947, Thomson took the position that the Informal Complaint was also to cover shipments during "the pendency of this proceeding." This position does not appear to have been controverted by the Railroads or questioned by the Commission.

 On December 17, 1947, Atlantic Coast Line R.R. ("ACL" herein), the originating carrier, offered on behalf of the Railroads to pay reparations "on all shipments involved in this informal complaint [No. 174417] upon which the statute of limitations has not run." The Commission, thereupon issued an order on September 19, 1950, Special Docket 218792 ("1950 Special Docket award" herein), directing the Railroads to pay Thomson $13,012.51 as reparations for unreasonable charges on 185 shipments moved during the period up to April 7, 1945. Payment was made on November 17, 1950.

 On December 7, 1950, Thomson acknowledged receipt of the reparations payment and requested reparations pursuant to its Informal Complaint for shipments which had moved after April 7, 1945. After further correspondence between the Secretary of the Commission and the parties, the Secretary, on June 26, 1952, advised Thomson that the Informal Complaint was closed as not susceptible of informal adjustment.

 On October 14, 1952, within six months after the closing of the Informal Complaint, Thomson filed a formal complaint, No. 31124 ("1952 Formal Complaint" herein) for reparations on shipments to five destinations previously covered by the Informal Complaint and on December 19, 1952 requested the Commission to reopen the Informal Complaint with respect to remaining destinations to be held in abeyance pending disposition of the formal proceeding. By letter of December 24, 1952, this request was granted and "Informal Complaint 174414 [sic]" was reopened "as originally filed."

 On the 1952 Formal Complaint, Thomson was awarded reparations of $1,463.80, 291 I.C.C. 1, 293 I.C.C. 369, which was paid by the Railroads on October 3, 1955, accompanied by the statement that this was "payment in full of all matters involved in Informal Complaint 174417 and ICC Docket No. 31124 growing out of that informal complaint." In acknowledging receipt of payment, Thomson called attention to the pendency of the Informal Complaint with respect to shipments to remaining Illinois destinations and requested settlement of these claims.

 On March 29, 1956, after further informal procedure proved unproductive, the Secretary of the Commission advised Thomson that the Informal Complaint was again declined. On March 31, 1956, Thomson requested reconsideration and on April 4, 1956, the Informal Complaint was again reopened. After further correspondence, it was again closed, for the last time, on April 19, 1956.

 On October 16, less than six months after this last closing, but more than six months after the closing of March 29, 1956, Thomson filed Formal Complaint No. 32065 ("1956 Formal Complaint" herein) which is here in issue, covering shipments to the remaining Illinois destinations during the period from April 10, 1945 to December 31, 1950. On February 10, 1958, the Commission, Division 2, reversed a recommendation of the Hearing Examiner that the statute of limitations barred Thomson's claims and found the rates unjust and unreasonable, 303 I.C.C. 25. Further proceedings ensued to determine the amount of the award and on September 28, 1960, the Commission, Division 2, Commissioner Walrath dissenting on the ground of the statute of limitations, followed the recommendation of the Hearing Examiner that Thomson be awarded $8,889.76 with interest. 311 I.C.C. 315.

 The Railroads' cross-action to review the Commission's award of reparations on the 1956 Formal Complaint relies principally on the ground that the filing of that formal complaint was barred by the statute of limitations despite the six-month extension provided by Rule 25(f). The Railroads argue that Thomson's claims were not preserved by the pendency of the Informal Complaint because that complaint

 
(1) was defective so that its filing on May 20, 1946 did not toll the running of the statute of limitations;
 
(2) was extinguished by the 1950 Special Docket award and the failure of Thomson to take further action within six months as required by Rule 25(f);
 
(3) was not properly reopened on December 24, 1952 so that the extension provided by Rule 25(f) expired six months after the Informal Complaint was closed on June 26, 1952;
 
(4) was extinguished on October 3, 1955 when the Railroads paid the award in the 1952 Formal Complaint and no further action was taken by Thomson within six months as required by Rule 25(f);
 
(5) was not properly reopened on April 4, 1956 so that the extension provided by Rule 25(f) expired six months after the Informal ...

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