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July 7, 1960

CONSOLIDATED TRUCK SERVICE, INC., a corporation of the State of New Jersey, Plaintiff,
UNITED STATES of America and the Interstate Commerce Commission, an Administrative Agency of the United States of America, Defendants

The opinion of the court was delivered by: FORMAN

This is an action brought by Consolidated Truck Service, Inc., hereinafter called Consolidated, in which it seeks a preliminary and permanent injunction enjoining the Interstate Commerce Commission from carrying into effect its order entered under Section 216(g) of the Interstate Commerce Act, 49 U.S.C.A. § 316(g) in which the Commission suspended certain rate schedules proposed by Consolidated and instituted an investigation concerning the lawfulness of said rates.

Jurisdiction is alleged under 28 U.S.C. §§ 1337, *fn1" 1346, 2321 et seq., and Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009.

 A temporary restraining order was issued on May 24, 1960 staying the action of the Commission. Thereafter a three-judge statutory court was convened pursuant to 28 U.S.C.A. §§ 2325 and 2284 and a hearing was held on May 31, 1960. At that hearing the Commission moved that the temporary restraining order be vacated and the complaint be dismissed for lack of jurisdiction.

 Prior to March 28, 1960, Consolidated was hauling green coffee beans by motor truck from the New York-New Jersey area to Jacksonville, Florida at the rate of $ 1.11 per cwt. At that time various railroads were engaged in the carriage of the same commodity between the same areas at a rate of $ 1.31 per cwt. On March 28, 1960, the effective rate for rail carriage of green coffee beans between the above areas was reduced to 94 cents per cwt.

 In response to this reduction, on or about April 22, 1960, Consolidated filed a rate of 94 cents for the carriage of green coffee beans from the New York-New Jersey area to Jacksonville, Florida to become effective at 12:01 a.m., May 25, 1960. The railroads petitioned to suspend Consolidated's proposed rate. On May 23, 1960, the Commission wired Consolidated that its proposed rate was suspended. On the same day Consolidated telegraphed the Commission to reconsider the suspension notice and the Commission answered by wire dated May 24, 1960, suggesting that Consolidated file a formal petition for reconsideration. *fn2" On the morning of May 25, 1960, Consolidated received the formal Commission order suspending its proposed rate and ordering an investigation. This was some ten hours after the proposed rate would have normally become effective. On the same day Consolidated alleges that it filed a formal petition to vacate the order of suspension and also sent a wire requesting a stay pending the Commission's determination of its petition to vacate and pending the determination resulting from the proposed investigation. No action apparently has been taken on these matters.

 Consolidated, in support of its request for injunctive relief, argues that he Commission action is invalid because (1) the wire notifying it of the suspension of its proposed rate reduction did not state the reasons therefor as required by 49 U.S.C.A. § 316(g); *fn3" (2) the order delivered on the morning of May 25 was similarly defective because of the lack of any 'findings, basis, or reasons for the Order of Suspension'; (3) the order of suspension was invalid because it merely stated that 'an investigation be, and it is hereby instituted into and concerning the lawfulness of the rates' whereas the statute requires a hearing; and (4) that even assuming the order of suspension was valid in content it was invalid because delivered some ten hours after the effective date of the proposed rate.

 Consolidated further alleges that unless an injunction is issued pending final determination by the Commission it will suffer irreparable harm and may even be forced out of business. And it is because of this alleged irreparable harm that Consolidated sees an exception to the rule that only final orders are subject to judicial review.

 Finally Consolidated asserts that the action of the Commission in granting the railroads a schedule of 94 cents per cwt. while denying it a similar reduction was discriminatory, arbitrary and thus invalid.

 The order of suspension here involved is obviously not a final determination of the lawfulness of the rate proposed by Consolidated. A hearing is yet to be had. The order is interlocutory in nature for its function is to maintain the status quo pending a Commission inquiry. Cf. Humble Oil & Refining Co. v. Federal Power Commission, 5 Cir., 1956, 236 F.2d 819, certiorari denied 1957, 352 U.S. 967, 77 S. Ct. 354, 1 L. Ed. 2d 321. Not being a final determination it should not ordinarily be subject to judicial review. Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638. The Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., preserves the doctrine of exhaustion of administrative remedies. Coastwise Line v. United States, D.C.N.D.Cal.1957, 157 F.Supp. 305; Federal Power Commission v. Colorado Interstate Gas Co., 1955, 348 U.S. 492, 75 S. Ct. 467, 99 L. Ed. 583. Moreover the action here was one committed to agency discretion. Ferguson-Steere Motor Co. v. United States, D.C.N.D.Tex.1954, 126 F.Supp. 588; Luckenbach Steamship Co. v. United States, D.C.D.Del.1959, 179 F.Supp. 605.3a Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009 would seem to preclude review where discretion is so committed. *fn3"

 Plaintiff seeks to avoid the above mentioned rules by first contending, in effect, that the Commission action was unauthorized by Section 216(g) of the Interstate Commerce Act, 49 U.S.C.A. § 316(g), and that therefore jurisdiction was absent. It argues that the Commission failed to state the reasons for its action as required by 49 U.S.C.A. § 316(g).

 The suspension order stated:

 'And It Further Appearing, that upon consideration of the said schedules and protests thereto there is reason to believe that they would, if permitted to become effective, result in rates and changes, rules, regulations or practices which would be unjust and unreasonable in violation of the Interstate Commerce Act and constitute unfair and destructive competitive practices in contravention of the National Transportation policy; and good cause appearing therefor:'

 Plaintiff argues that the reasons stated in the order are 'mere conclusions or ultimate findings recited in the language of the statute' and 'are not enough in the absence of findings to support them.' As authority for its position it cites Seatrain Line v. United States, D.C.S.D.N.Y.1958, 168 F.Supp. 819 and Amarillo-Borger Express v. United States, D.C.N.D.Tex.1956, 138 F.Supp. 411.3c In the former case a hearing had been held and the court properly insisted on basic findings to support the ultimate conclusions. Here, as yet, no hearing has been held. Section 316(g), 49 U.S.C.A. only requires a statement of reasons and reasons differ from findings in that the former relate only to law, policy and discretion rather than to facts. Davis, Administrative Law, Sec. 16.12 (1959). As to the latter case cited by the plaintiff (Amarillo-Borger) the court there specifically approved a statement of reasons in a suspension order which is an exact duplicate of the one involved here. In Ferguson-Steere Motor Co. v. United States, supra, and in Hudson and Manhattan Railroad Co. v. United States, Civ. 67-312, dated July 16, 1951 (an unreported opinion by the United States District Court for the Southern District of New York) orders containing less informative reasons were approved. *fn4" The statement of reasons contained in the order of the Commission at issue here adequately satisfied the requirements of the statute.

 Plaintiff next argues that since it received the suspension order some ten hours after its proposed rate would ordinarily have become effective, it was invalid. The quick answer to this contention can be ...

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