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May 3, 1972


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


The plaintiff in these actions is suing the various defendant motor carriers for refund of freight charges pursuant to orders of the Interstate Commerce Commission. The plaintiff presently moves for summary judgments and, in each of these cases but one, the defendants move to dismiss the actions, or in the alternative, move for summary judgments in their favor based upon the same grounds by which they oppose the plaintiff's motions for summary judgment.*fn1

The plaintiff has previously brought suit against three other motor carriers based upon the same orders of the Interstate Commerce Commission*fn2 and, in response to the plaintiff's motions for summary judgment in those cases, this Court ruled that the orders were valid and that the plaintiff was entitled to the refunds. Subsequent to that ruling, we denied the defendants' motions for a new trial and to alter and amend the judgments. Because the Court's memorandum opinions accompanying our rulings on those motions*fn3 plus the memorandum opinion granting plaintiff's motion for attorneys' fees*fn4 discuss much of the factual background and legal conclusions relevant to these law-suits, we adopt and incorporate those opinions into this opinion by reference and we do not, therefore, repeat the factual background of this suit.


The defendants' initial grounds for opposing the plaintiff's motions for summary judgment are the same that their counsel took in response to the plaintiff's motions for summary judgment in the three prior cases and, in support thereof, they incorporate all their briefs from the prior suits. We analyzed and considered these arguments in our prior opinions incorporated herein and, as there outlined, do not find them to be meritorious.


The defendants next assert grounds for opposing plaintiff's summary judgment motions which, the carriers claim, are "supplemental" to the grounds asserted by the defendant motor carriers in the three prior cases. Considering their prior briefs in opposition to plaintiff's original summary judgment motions in the three prior cases and their "supplemental" briefs in support of their motions to vacate the adverse judgments entered therein, the new "supplemental" briefs filed in these proceedings are the third attempt by counsel for the motor carriers to conjure up theories to aid their clients to abrogate their understanding with the Commission to roll back any charges collected from shippers during the Commission proceedings and which ultimately were not approved. Because each of these cases is a separate proceedings, however, we must consider the "supplemental" grounds asserted by the defendants herein.

The defendants' initial "supplemental" argument is that "the plaintiff seeks to have this Court give far greater vitality and effect to the purported `order' of the Interstate Commerce Commission upon which plaintiff relied than was ever intended by that Commission." In support of this conclusion, the carriers submit copies of the brief of the United States and the Interstate Commerce Commission filed before the Denver three judge Court in Admiral-Merchants Motor Freight, Inc., et al. v. United States,*fn5 wherein the motor carriers unsucessfully sought to overturn the Commission's refund orders.

The carriers contend that a perusal of the ICC brief indicates that the Commission, interpreting its own order, asserted before the three judge court that (1) the refund order was based upon duties of the carriers which arose under the common law doctrine of restitution and not under the Interstate Commerce Act and (2) such order would not be enforceable per se against the carriers under the doctrine of restitution without the carriers being provided an opportunity to challenge the equities in subsequent restitution proceedings. The carriers argue that with these assertions before it, the Denver Court's ruling on the validity of the ICC order was not intended to foreclose the carriers from later again challenging that order.

We have read the briefs submitted by the Government to the Denver Court and the carriers' description of them is at least arguable although the precise meaning of a subsequent "challenge of the equities" is unclear. Had the Denver Court ruled on the basis outlined in those briefs, the carriers' theory that they should now be entitled to submit evidence on the equities in the restitution suits might be appropriate. There are, however, two reasons why their theory is inapposite and why the Commission's view of the refund order is irrelevant to these proceedings.

First, the Denver Court, in ruling for the ICC and dismissing the carriers' complaint, specifically did not rely upon the Government's proffered theory of restitution as a basis for upholding the order. After noting the Government's theory of common law restitution, the Court responded that a legislative tribunal cannot exercise common law or equitable jurisdiction unless such power has been expressly granted to it by Congress, but that this consideration was immaterial because the Commission did not undertake to apply common law or equity principles. Rather, it merely had imposed the refund order as a condition for granting an extension of time in the hearings on the proposed increases, a purely procedural matter which was clearly within its power. The Court continued:

    An even stronger argument for refusal to annul the
  Commission's order is the doctrine of equitable
  estoppel. We have in mind the principle which imposes
  an obligation on a person to live up to his
  representations or conduct in circumstances where
  inequitable consequences would result to persons
  having the right to rely, and who in good faith did
  rely on the representations made. Applied to the case
  at bar the Commission certainly relied on the
  carriers' withdrawal of their jurisdictional
  objection to the refund condition. The Commission's
  reliance was evidenced by its failure to vacate the
  order. It did not have to anticipate that the
  carriers would renege. The carriers' withdrawal of
  their timely objection was a positive act which
  evidenced willingness to go along with the condition
    It can also be argued that there was a binding
  waiver on the part of the carriers resulting from
  their affirmative withdrawal of their
  objection . . .*fn6

It is clear from this lengthy quote that the Denver Court ruled on a basis wholly apart from that suggested by the Commission and that the Commission's brief before that Court discussing its ...

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