at this time to reach a decision on this question. The
investigation of the C.A.B. into the question of the
reasonableness of fares in question may render moot this
difficult problem. Also, the factual situations and statutes
involved in these two cases are different from those in this
litigation and the cases may not be applicable. Therefore,
this court believes that the most expeditious and efficient
course of action for this litigation would be to by-pass this
problem, which counsel have not dealt with in depth in their
respective memoranda, since it is an issue collateral to the
motion currently before the court, until a determination of
the reasonableness vel non of the fares has been made.
While the main arguments of the plaintiffs have been
considered and dealt with earlier in this opinion, the court
will briefly comment on their remaining issues. Certain
plaintiffs attempt to distinguish the Atlantic Coast decision
from Moss on the ground that the defect in the former was
procedural while in the latter it was a violation of the
substantive rate making standards contained within the statute.
This court can not agree and reads Moss as invalidating the
order and fares of the C.A.B. on the grounds that the second
tariffs filed by the carriers in response to the C.A.B.'s
suggested formula constituted rate making by the Board. As
such, a hearing after due notice was required by the statute
and, as admitted by the C.A.B., was not held. Basically, for
the reasons that judicial review was in this manner frustrated
and that the public was effectively excluded from the decision
making process, the Moss court overturned the increased fares.
This, in the court's opinion, was a procedural defect, and it
believes that the quotations of plaintiffs are taken out of the
full context of the Moss opinion.
Also, plaintiffs contend that the C.A.B. has no power to
grant reparations or to investigate into the past
unreasonableness of a tariff. While the first statement is
certainly true, it does not follow that any action or
investigation of the C.A.B. must prove to be futile for that
reason. The doctrine of primary jurisdiction is predicated
upon the rationale of the administrative agency laying a
foundation for a more informed decision by the court.
Therefore, power to issue a final order adjudicating the
claims or granting relief on the part of the agency is not
necessary before a question can be referred to such an agency.
The Act also grants general investigatory powers to the Board
and the Atlantic Coast decision supports the theory that the
agency may conduct an investigation in these circumstances.
Plaintiffs cite the cases of I.C.C. v. Louisville &
Nashville R.R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431
(1913) and Southern Pacific Co. v. Darnell-Taenzer Lumber Co.,
245 U.S. 531, 38 S.Ct. 186, 62 L.Ed. 451 (1918). The court
finds that these cases are inapplicable for the reason that in
those instances the appropriate administrative agency had
prior to the litigation considered the reasonableness of the
tariffs. The first case stands only for the proposition that
the findings of the I.C.C. are prima facie correct rather than
conclusive. The latter case held that the party who was
charged excessive freight charges was damaged despite the
possibility that it may have passed on the overpayments to its
customers. Finally, the case of United Gas Pipe Line Co. v.
Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100
L.Ed. 373 (1956) is also distinguishable since it was decided
under the entirely different statutory rate making scheme of
the Natural Gas Act.
Finally, the court notes that the origin of this litigation
arose with the C.A.B. and the Court of Appeals for the
District of Columbia. That Court reversed the order of the
Board and remanded to the Board for further proceedings. In
response to that remand and the supplemental complaint of the
Moss petitioners, the C.A.B. initiated its present
investigation. For this court to enjoin this investigation as
plaintiffs have requested or to conduct an independent
and duplicative determination of the same or similar question
as being considered by the Board would, in effect, be an
infringement upon the jurisdiction of the Court of Appeals for
the District of Columbia. This court is unaware of any
precedent granting to a district court the power to interfere
with the orders or mandate of a Court of Appeals of another
Accordingly, the defendants' motion for a stay is granted
and all proceedings in this litigation are ordered to be held
in abeyance until further order of this court. The purpose of
this stay is to await the findings of the C.A.B. on the
question of the reasonableness vel non of the fares charged
between October 1969 and October 1970. The parties are expected
to aid such investigation and are urged to participate therein.
The court also expects liaison counsel for the plaintiffs and
defendants to periodically inform the court as to the progress
of those proceedings.
It is so ordered.
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