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November 10, 1971


The opinion of the court was delivered by: Will, District Judge.


The issues presented by the plaintiff's motion for summary judgment in each of these three pending cases is whether certain orders of the Interstate Commerce Commission are valid and whether the plaintiff may sue for refund of certain alleged overcharges collected by the three defendants, each a motor carrier.

The I.C.C. refund order here involved runs against the defendants in these cases and against all other carriers who were parties to certain increased rate tariffs filed by the Middlewest Motor Freight Bureau, Inc., effective April 1, 1968. The Commission had let the increased rates go into effect on their effective date but, on protest of various parties (not including the plaintiff herein), had instituted an investigation, without suspension, into the lawfulness of the increased rates and had set the matter for hearing on May 20, 1968. When requests were then made by certain public shippers and the carriers (but not by the private shippers) for an extension of time to prepare for the hearing, the Commission granted a three months extension of time to August 19, 1968, but included in its extension order a refund provision requiring refund of the increased portion of the rates collected on shipments after May 20, 1968, if the increased rates should ultimately not be approved by the Commission.*fn1

Thirteen months after granting the extension and after oral hearings and briefing by the carriers and others, the Commission found the increased rate tariffs not shown to be just and reasonable. Based upon this finding, the Commission, on June 5, 1969, ordered the increased rate tariffs cancelled and, in accord with the prior refund proviso, ordered the carriers to make appropriate refunds to shippers.*fn2

Subsequent to the June 5th order by the Commission, the respondent carriers petitioned, to vacate the order. On August 29, 1969, at a general session of the Commission, the carriers' petition to reconsider and vacate said refund order was denied, and the Commission again ordered the refunds to be made.*fn3

The increased rates that were not shown to be just and reasonable were collected by the defendants from April 1, 1968 to August 31, 1969, with the Order to Refund applicable only to charges made from May 20, 1968 to August 31, 1969. Although the defendants in each case deny any liability whatsoever, they do specify the amount of refund of freight charges to which the plaintiff would be entitled in each case if the latter is entitled to any refund under the orders of the Commission.*fn4 The issues before us, then, are exclusively legal questions.


The initial issue which we must resolve is the propriety and validity of the I.C.C. refund order that affects the defendants. The defendants argue at great length that the order was void for numerous reasons. This issue, however, has been resolved against them by the Courts that have previously reviewed their contentions. In Admiral-Merchants Motor Freight, Inc., et al. v. United States, 321 F. Supp. 353 (D.Colo. 1971), aff'd 404 U.S. 802, 92 S.Ct. 51, 30 L.Ed. 2d 37 (1971), the motor carriers involved before the Commission sought to have the refund orders of the Commission overturned. A three-judge district court was convened in Denver to hear this suit and denied the carriers' request. The Supreme Court affirmed in a per curiam decision without opinion.

The only basis that has been suggested by the defendants in opposition to the motion for summary judgment that would distinguish Admiral-Merchants from the instant case is that Admiral-Merchants, unlike the proceedings herein, was not an enforcement proceeding but merely an attack upon the refund order entered by the Commission. The district court stated in this respect, "The practical effect of this ruling is not before us since this is not an enforcement proceeding." 321 F. Supp. at 360. We believe that this distinction, however, is not relevant to the initial issue of the propriety of the Commission order.

The defendants contend that the Colorado district court did not affirm the order of the Commission, but merely refused the plaintiffs in that suit (the carriers) the relief that they requested. This myopic reading of the opinion of the district court is belied by the statement of issues set forth by that court and by the question presented on appeal to the United States Supreme Court.*fn5 A reading of these "presented" issues clearly indicates that both the District Court and the Supreme Court were affirming the validity of the Commission refund order.


Having made the determination that the Commission's refund order was valid, the next issue presented to the Court concerns the practical effect of the order upon plaintiff's rights.*fn8 In dealing with the practical effects of the order, three separate questions arise. The initial question is whether the plaintiff's failure to intervene or otherwise become involved with the proceedings before the Interstate Commerce Commission is an impediment to its instant suit. Second, we must determine if the plaintiff has a statutory basis for suit. Finally, we must consider plaintiff's asserted equitable basis for recovery of restitution.

A. Although they never specifically make the allegation, the defendants appear to argue at various points in their brief in opposition to the motion for summary judgment that the plaintiff should be precluded from collecting any refunds under the order of the Interstate Commerce Commission because it was not a party to the proceedings before the Commission which culminated in that order nor in the subsequent review proceedings in which the refund order was affirmed. If the defendants are making this argument, we do not believe it to be meritorious because the litigation before the I.C.C. was intended to benefit all shippers over the lines of the carriers subject to the order.

In Phillips v. Grand Trunk Western Railway, 236 U.S. 662, 35 S.Ct. 444, 59 L.Ed. 774 (1914), the plaintiff therein was accorded the benefits of a reparations order entered in an I.C.C. proceedings to which it was not a party. ...

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