By WARREN H. WAGNER, Editor

United States may sue itself—Court review of commission order denying reparation. United States v. Interstate Commerce Commission (No. 330)

On June 20, the Supreme Court held that United States may sue itself, in the proceeding embracing wharfage allowances for services performed by the Government in handling of wartime shipments over certain piers at Norfolk, Virginia. It reversed the three-judge District Court for the District of Columbia.

Quoting from the majority opinion of the Supreme Court:

It is contended here that the United States as a shipper is barred from challenging in federal courts an Interstate Commerce Commission order which denies the Government a recovery in damages for exaction of an allegedly unlawful railroad rate. Other contentions if sustained would deny federal courts all power to entertain an action by any shipper challenging a Commission order denying damages to the shipper.

During the war, existing tariffs of many railroads embodied wharfage charges to compensate the railroads for moving goods from railroad cars to piers and from piers to railroad cars. When the United States took over certain piers at Norfolk, Virginia, it began to perform these wharfage services for itself and requested the railroads to make the United States an allowance for the expenses incurred in performing the services. The railroads refused to make an allowance. Upon this refusal the Government requested the railroads to perform the services themselves. The railroads refused to perform the services.

The United States filed with the Interstate Commerce Commission a complaint against the railroads charging that exaction of pay for unperformed services was unjust, unreasonable, discriminatory, excessive, and in violation of certain sections of the Interstate Commerce Act. The complaint asked the Commission to find the charges unlawful. Further relief asked, under the Interstate Commerce Act, was that the Government be awarded damages (reparations) on account of the alleged unlawful exactions. The Commission found that the charges were not unjustly discriminatory, unreasonable, or otherwise in violation of the Act. Accordingly, the Commission denied reparations and ordered the complaint dismissed. United States v. Aberdeen & Rockfish R. Co., 269 I. C. C. 141 (1947).

The United States brought this action in a United States District Court to set aside the Commission order. The complaint charged that the Commission's conclusions were not supported by its findings, that the findings were not supported by any substantial evidence, that the order was based on a misapplication of

law and was "otherwise arbitrary, capricious and without support in and contrary to law and the evidence." The Interstate Commerce Commission was made a defendant. The United States was also made a defendant because of a statutory requirement that any action to set aside an order of the Interstate Commerce Commission "shall be brought against the United States. 28 U. S. C. § 46. Railroads that collected the wharfage charges intervened as defendants under authority of 28 U. S. C. § 45 (a). The Attorney General appeared for the Government as both plaintiff and defendant. Without reaching the merits of the case, the District Court composed of three judges dismissed the cause on the theory that the Government could not maintain a suit against itself. The court also indicated its belief that a three-judge court was without jurisdiction of the suit.

In this Court the Commission and the railroad intervenor defendants support the District Court's dismissal for the reasons given by that court. Alternative reasons are also urged. We hold that the dismissal was error and that the case should have been considered on its merits.

First. There is much argument with citation of many cases to establish the long-recognized general principle that no person may sue himself. Properly understood the general principle is sound, for courts only adjudicate justiciable controversies. They do not engage in the academic pastime of rendering judgments in favor of persons against themselves. Thus a suit filed by John Smith against John Smith might present no case or controversy which courts could determine. But one person named John Smith might have a justiciable controversy with another John Smith. This illustrates that courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.

While this case is United States v. United States, et al., it involves controversies of a type which are traditionally justiciable. The basic question is whether railroads have illegally exacted sums of money from the United States. Unless barred by statute, the Government is not less entitled than any other shipper to invoke administrative and judicial protection. To collect the alleged illegal exactions from the railroads the United States instituted proceedings before the Interstate Commerce Commission. In pursuit of the same objective the Government challenged the legality of the Commission's action. This suit therefore is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads. The order if valid would defeat the Government's claim to that money. But the Government charged that the order was issued arbitrarily and without substantial evidence. This charge alone would be enough to present a justiciable controversy. Chicago Junction Case, 264 U. S. 258, 262-266. Consequently, the established principle that a person cannot create a justiciable controversy against himself has no application here.

Second. It is contended that the provisions of the Act making the Government a statutory defendant in court actions challenging Commission orders, show a congressional purpose to bar the Government from challenging such orders. Legislative history is cited in support of this contention. If the contention be accepted, Congress by making the Government a statutory defendant in such cases has deprived the United States as a shipper of powers of self protection accorded all other shippers. We cannot agree that Congress intended to make it impossible for the Government to press a just claim which could be vindicated only by court challenge of a Commission order. See United States v. San Jacinto Tin Co., 125 U. S. 273, 279.

In support of their contention that Congress did not intend for the Government to press its claims as a shipper, the Commission and railroads emphasize the anomaly of having the Attorney General appear on both sides of the same controversy. However anomalous, this situation results from the statutes defining the Attorney General's duties. The Interstate Commerce Act requires the Attorney General to appear for the Government as a statutory defendant in cases challenging Commission orders. 28 U. S. C. § 46. The Attorney General is also under a statutory duty "to determine when the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases. United States v. San Jacinto Tin Co., 125 U. S. 273, 279. See also United States v. California, 332 U. S. 19, 26-29. Nothing in the Interstate Commerce Act indicates a congressional purpose to amend prior statutes which had imposed primary responsibility on the Attorney General to seek judicial redress for the Government.

Although the formal appearance of the Attorney General for the Government as statutory defendant does create a surface anomaly, his representation of the Government as a shipper does not in any way prevent a full defense of the Commission's order. The Interstate Commerce Act contains adequate provisions for protection of Commission orders by the Commission and by the railroads when, as here, they are the real parties in interest

Third. 28 U. S. C. § 41 (28) provides that "The district courts shall have original jurisdiction Of cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission. The legal consequences of this order if upheld will finally relieve the railroad of any obligations to the Government on account of the alleged unlawful charges; the order thus falls squarely within the type made subject to judicial review by § 41 (28). Rochester Telephone Corp. v. United States, 307 U. S. 125, 131-132, 142-143; El Dorado Oil Works v. United States, 328 U. S. 12, 18-19.

The Commission and the railroads contend, however, that § 9 of the Interstate Commerce Act, 49 U. S. C. § 9, bars the United States or any other shipper from judicial review of an order deny

ing damages in reparation proceedings initiated before the Commission

The contention of the Commission and the railroads as to § 9 is this. A shipper has an alternative. He may bring his action before the Commission or before the courts. But he must make an election. If he elects to "bring suit" in a court and is unsuccessful, he retains the customary right of appellate review. If he elects to "make complaint to" the Commission, as the Government did, and relief is denied, he is said to be barred by the statutory language of § 9 from seeking any judicial review of the Commission order. Under the contention the order is final and not reviewable by any court even though entered arbitrarily, without substantial supporting evidence, and in defiance of law.

Such a sweeping contention for administrative finality is out of harmony with the general legislative pattern of administrative and judicial relationships. See, e. g., Shields v. Utah R. Co., 305 U. S. 177, 181-185; Stark v. Wickard, 321 U. S. 288, 307-310. And this Court has consistently held Commission orders reviewable upon charges that the Commission had exceeded its lawful powers. See, e. g., Interstate Commerce Commission v. Louisville & N. R. Co., 227 U. S. 88, 91-93; Chicago Junction Case, 264 U. S. 258, 266. The language of § 9 does not suggest an abandonment of these consistent holdings. It does suggest that a shipper who elects either to "make complaint to" the Commission or to "bring suit" in a court is thereafter precluded from initiating a § 9 proceeding in the other. It may therefore be assumed that after a shipper has elected to initiate a Commission proceeding for damages, he could not later initiate an original district court action for the same damages. But forfeiture of the right to initiate his claim in the court under § 9 is one thing; forfeiture of his right under 28 U. S. C. § 41 (28) to obtain judicial review of an unlawful Commission order is another. Section 9's language controls the forum in which reparation claims may be begun and tried to judgment or order; it does not purport to give complete finality to a court judgment or to a Commission order merely because a shipper elected to proceed in one forum rather than the other. So we can find nothing in the language of § 9 that bars a court from reviewing a reparation order upon allegations by a shipper that the order was entered in defiance of standards established by Congress to determine when reparations are due.

Furthermore, the section's careful provision for judicial protection of railroads against improper Commission awards argues against interpretation of the same section to deny to shippers any judicial review whatever. Under the suggested interpretation a shipper could recover nothing if the Commission decided against him. But a Commission award favorable to a shipper is not final or binding upon the railroad. Such an award "only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no ques

tion of fact from either court or jury

Nor does it in any
Meeker v. Lehigh

wise work a denial of due process of law. Valley R. Co., 236 U. S. 412, 430. And see Pennsylvania R. Co. v. Weber, 257 U. S. 85, 90-91. It hardly seems possible to find from the language of § 9 a congressional intent to guarantee railroads complete judicial review of adverse reparation orders while denying shippers any judicial review at all.

What we have said would dispose of the § 9 contention but for the argument of the Commission and the railroads that their suggested interpretation of the section is required by this Court's holding in Standard Oil Co. v. United States, 283 U. S. 235, and other cases that followed it. In that case the Standard Oil Co., a shipper, was denied the right to judicial review of a Commission order denying reparations. Judicial review was denied on four grounds: (1) The order in the Standard Oil case denying reparations was "negative" in form, and was therefore beyond judicial appraisal under the "negative order" doctrine. This doctrine was wholly abandoned in Rochester Tel. Corp. v. United States, 307 U. S. 125. (2) The decision in the Standard Oil case held that the Commission order was supported by substantial evidence and was not otherwise in violation of law. The Government's claim here is that this order cannot meet that test. (3) The third ground for denial of judicial review was that having elected to test its damage claim before the Commission, Standard was precluded from judicial review. (4) A three-judge court was an improper tribunal to adjudicate damage claims under § 9.

Ashland Coal Co. v. United States, 325 U. S. 840, is the only case in this Court that relied on the Standard Oil decision after we had abandoned the negative order doctrine. Cf. Allison & Co. v. United States, 296 U. S. 546. And it is doubtful if the shipper in the Ashland Coal Co. case could have sought reparations in a district court under the primary jurisdiction doctrine. In affirming without argument the judgment of a three-judge court in the Ashland Coal Co. case, this Court's per curiam opinion cited two pages of the Standard Oil opinion that support the interpretation of § 9 urged here by the Commission and railroads. It is a fair inference that the pages were cited for that interpretation although other grounds for the Court's decision also appear there. One such ground was that a three-judge court is an improper tribunal for the review of such Commission orders. Another ground was that there was "nothing to suggest that the Commission acted arbitrarily or without evidence to support its conclusions, or that it transcended its constitutional or statutory powers." The three-judge district court in the Ashland case in sustaining the Commission order had also held that three-judge court was not a proper tribunal and that the Commission order was supported by substantial evidence and was in accordance with law. Ashland Coal & Ice Co. v. United States, 61 F. Supp. 708, 713.