On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 87-4217.
Becker, Hutchinson and Scirica, Circuit Judges.
HUTCHINSON, Circuit Judge.
Once again, we are asked to determine, as a threshold matter, whether an interlocutory order issued by a district court is eligible for immediate review by this court. The specific question presented in this case is whether the district court's order denying a motion to stay or to refer issues to the Interstate Commerce Commission is immediately appealable under either 28 U.S.C.A. § 1291 (West Supp. 1988) or 28 U.S.C.A. § 1292(a)(1) (West Supp. 1988). We hold it is not.
Plaintiff-appellee Oneida Motor Freight, Inc. (Oneida) is a motor common carrier operating in interstate commerce. Between September of 1983 and July of 1985, Oneida transported shipments of freight tendered by defendant-appellant Occidental Chemical Corporation (Occidental). It billed Occidental for these services and Occidental paid the charges stated in the invoices.
In July, 1985, Oneida filed a petition for reorganization under Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court for the District of New Jersey. With approval of the Bankruptcy Court, Oneida hired Delta Traffic Service, Inc. (Delta Traffic)*fn1 to perform an audit on freight bills and other documents to determine whether its customers had paid the rates published in the interstate motor common carrier tariffs it had filed with the Interstate Commerce Commission (ICC). Delta Traffic determined that in the three years preceding Oneida's Chapter 11 filing Occidental had underpaid by $36,655.86 the freight charges it was obligated to pay under 49 U.S.C.A. § 10761(a).*fn2
Delta Traffic asked Occidental to remit the amount of this "undercharge." It refused. Delta Traffic and Oneida then brought an action to collect the $36,655.86 in the United States District Court for the Eastern District of Pennsylvania. Occidental filed a motion for stay of the action and referral of the matter to the ICC. The district court denied this motion. Occidental seeks to appeal the district court's interlocutory order.
Occidental has raised several defenses to plaintiffs' action to collect the undercharge of $36,655.86. It asserts that the rates and charges plaintiffs are attempting to collect are unjust and unreasonable, and that Oneida's attempt to collect at a rate higher than that at which it billed and was paid for its services is an unjust and unreasonable practice. It argues that referral to the ICC is necessary because questions involving the reasonableness of rates and practices fall within the primary jurisdiction of the ICC.*fn3 It also claims that, under the circumstances in this case, interpretation of Oneida's tariffs is a function within the primary jurisdiction of the ICC.
Occidental requests this court to vacate the district court's order denying its stay and referral motion and to remand this matter to the district court for entry of an order staying proceedings in that court and referring the issues of tariff construction and unreasonable rates and practices to the ICC. It asserts that the district court's order denying the stay and referral is immediately appealable under 28 U.S.C.A. § 1291*fn4 as a collateral order or under 28 U.S.C.A. § 1292(a)(1)*fn5 as in the nature of an order refusing to grant an injunction.
Delta Traffic and Oneida respond that the doctrine of primary jurisdiction does not require referral of the issues raised by Occidental to the ICC. They have filed a motion to dismiss the appeal for lack of jurisdiction, which the motions panel referred to this panel for disposition. We conclude that neither ...