Whenever notice is given by mail as provided herein the date of mailing shall be considered as the time when notice is served * * *.'
It is obvious that since the plaintiff received the suspension order at approximately 10 a.m. on May 25, 1960, it had been mailed prior to the effective date of the plaintiff's proposed rate, i.e. prior to 12:01 a.m., May 1960. In fact the order is dated May 20, 1960. Moreover the plaintiff admits the receipt of a telegram on May 23, 1960, notifying it of the suspension. It can hardly claim surprise or prejudice.
Plaintiff also asserts that 49 U.S.C.A. § 316(g) requires that suspension may only be ordered pending a hearing as to the lawfulness of the rate and that no hearing has been instituted. Technically it is true that the word 'hearing' is not used in the suspension order. It states:
'* * * that an investigation be, and it is hereby, instituted into and concerning the lawfulness of the rates, * * * with a view to making such findings and orders in the premises as the facts and circumstances shall warrant.' (Emphasis supplied.)
'It Is Further Ordered, that the investigation in this proceeding shall not be confined to the matter and issues hereinbefore stated as the reason for instituting this investigation, but shall include all matters and issues with respect to the lawfulness of the said schedules under the Interstate Commerce Act.' (Emphasis supplied.)
The argument that an 'investigation', stated as being instituted in this suspension order, differs from a 'hearing' glorifies form at the expense of substance. The Commission has stated that Consolidated will get a hearing and Consolidated does not contend otherwise. Since the notice of the investigation (or hearing) was given at or prior to the time of the suspension order and the actual date for the hearing need not be given prior to the suspension, the statute, in this respect received full compliance.
The plaintiff has stressed the financial disaster that will overtake it if it is obliged to await a hearing and determination by the Commission which may not occur until a lapse of seven months. But the statute has so provided and judicial intervention is precluded.
It is further asserted that where irreparable injury is shown, administrative finality is not a condition precedent to judicial review. To support this proposition plaintiff cites Isbrandtsen Co. v. United States, 1954, 93 U.S.App.D.C. 293, 211 F.2d 51; Cantlay & Tanzola v. United States, D.C.S.D.Cal.1953, 115 F.Supp. 72; and Pacific Inland Tariff Bureau v. United States, D.C.D.Oregon 1955, 129 F.Supp. 472. Those cases are clearly distinguishable.
In Isbrandtsen an order of the Federal Maritime Board was involved. Although granting a hearing at a later date it permitted a dual rate system to go into effect without its required specific and affirmative approval. The court held that Isbrandtsen would suffer irreparable damage and was not required to defer its appeal for judicial review after the Board had entered an invalid order. In this case there is the mere allegation of loss of a substantial volume of a business. As opposed to the unlawful order of the Board in Isbrandtsen, in this case, the order of the Commission was within its discretionary power.
In Cantlay a hearing had been held and only reconsideration by the Commission remained.
As for Pacific Inland, there, too, a hearing had been held and in referring to the order involved the court stated that the order entered by Division 2 of the Interstate Commerce Commission was final. Only the reconsideration procedure remained.
Section 10(c) of the Administrative Procedure Act, 5 U.S.C.A § 1009(c), provides:
'* * * agency action otherwise final shall be final for the purposes of this subsection whether or not there has been presented or determined any application * * * for any form of reconsideration, * * *' (Emphasis supplied.)
Since the Act preserves the doctrine of the exhaustion of administrative remedies it is obvious that Section 1009 has application only after a hearing has been held. This would seem to be the position taken in Pacific Inland, supra.
It should be further noted that the court, in Pacific Inland, cited Oklahoma Natural Gas Co. v. Russell, 1923, 261 U.S. 290, 43 S. Ct. 353, 67 L. Ed. 659, for the proposition that administrative 'finality' is not required 'where there is a showing of immediate and irreparable injury flowing from an inadequacy of the prescribed administrative procedure.' 129 F.Supp. 478. It can hardly be said that there we have an inadequate administrative procedure. Plaintiff has yet to have the Commission take action on its petition for reconsideration of the suspension order and, of course, the full hearing remains in the future.
Finally, the plaintiff contends that the action of the Commission is arbitrary, capricious and discriminatory in that it refused plaintiff the same rate it permitted to the railroads.
We by-pass the question of whether even an arbitrary and capricious suspension order in the present context is subject to judicial review. It has led to different opinions. See Luckenbach Steamship Co. v. United States, supra; Bison Steamship Corporation v. United States, D.C.N.D.Ohio 1960, 182 F.Supp. 63 and Ferguson-Steere Motor Co. v. United States, supra. Suffice it to say that without more proof it cannot be said that the action of the Commission is arbitrary and capricious. Surely such a conclusion must await the results of the hearing.
The temporary restraining order will be dissolved and the motion of the Commission to dismiss the complaint will be granted for lack of jurisdiction and on the merits.
An order in accordance herewith should be submitted.