The opinion of the court was delivered by: Will, District Judge.
The plaintiffs in this action are suing the various
defendant motor carriers for refund of freight charges
pursuant to orders of the Interstate Commerce Commission dated
June 5, August 29, and October 27, 1969.*fn1 The carriers
have moved to dismiss the complaint and the plaintiffs have
moved for summary judgment.
The first ground asserted by the carriers in support of
their motion to dismiss is that this Court lacks jurisdiction
to entertain the plaintiffs' suit. The plaintiffs argue that
the Court does possess jurisdiction to hear the suit under
28 U.S.C. § 1337*fn2 because they are attempting to enforce,
pursuant to Section 16(2) of the Interstate Commerce Act,
49 U.S.C. § 16(2), the above referred to orders of the I.C.C. in
which the involved carriers were ordered to make certain
refunds to shippers.
This initial issue of jurisdiction is easily resolved. When
a claim is alleged to arise under the Constitution or laws of
the United States, the federal district court must entertain
the suit except when the alleged claim appears to be
immaterial and made solely for the purpose of obtaining
jurisdiction or where it is wholly insubstantial and
frivolous. A claim must not be dismissed for lack of
jurisdiction unless it appears, to a legal certainty, that the
claim is wholly insubstantial and frivolous so far as the
Constitution and the laws of the United States are concerned.
Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
A district court has jurisdiction when the right of a
plaintiff to recover under his complaint will be sustained if
the Constitution and laws of the United States are given one
construction and will be defeated if they are given another.
Wheeldin v. Wheeler, 373 U.S. 647,
83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). As plaintiffs' claims
for enforcement of the I.C.C. orders are clearly not frivolous
this Court has jurisdiction. "Whether the complaint states a
cause of action on which relief could be granted is a question
of law and just as issues of fact it must be decided after and
not before the court has assumed jurisdiction over the
controversy." Bell v. Hood, supra.
Although the carriers make numerous suggestions as to why
plaintiffs' complaint does not state a cause of action upon
which relief could be granted, their arguments narrow down to
a summary of the potential actions the plaintiffs might have
and the reasons why such suits are not viable in the instant
proceedings. We must, therefore, review each of these
potential causes of action.
In an effort to obtain the refunds due them under the I.C.C.
orders, shippers throughout the country have brought a
multitude of suits against the carriers who have reneged on
their agreement to refund certain moneys collected during the
pendency of the Commission proceedings which preceded and led
up to the involved orders. In bringing these suits, the
shippers have sought relief primarily on two theories, that of
common law restitution and a statutory right of suit under
49 U.S.C. § 16(2).*fn3 The plaintiffs in this action assert that
they are indeed claiming a right to relief under these two
theories of action and disclaim a right to relief under a
theory of statutory reparations.*fn4
In response to the § 16(2) theory of action, the carriers
assert that, even assuming the validity of our prior opinions
incorporated herein which held such cause of action to be
maintainable by shippers via motor carrier, the statute of
limitations for such actions is one year as provided by
49 U.S.C. § 16(3)(f)*fn5 and that more than one year elapsed from
the June 5, 1969 Commission order before the plaintiffs filed
this suit on October 12, 1971. The plaintiffs contend, to the
contrary, that the statute of limitations was tolled during the
time that the Colorado three-judge court enjoined and stayed
the effectiveness of the Commission order*fn6 and that they
filed their suit prior to the expiration of one year's time
excluding the time that the Commission order was inoperative.
In response to the carriers motion in the Denver case for a
temporary restraining order, the court granted the motion,
entering an order on June 19, 1970, which stated:
THIS MATTER, comes to be heard upon the Motion of
the plaintiffs for a Temporary Restraining Order.
Plaintiffs seek an Order of this Court
restraining the effectiveness, operation and
enforcement of a portion of [the relevant I.C.C.
I. That the effectiveness of the [I.C.C. refund
order] be, and it is hereby, postponed
indefinitely, and its operation be, and it is
hereby, restrained and prohibited insofar as that
Order requires or permits the payment of refunds.
As soon as this Court order was entered, there no longer
existed a viable, effective, and pending Commission order for
the payment of the moneys involved in this litigation.
Although shippers such as plaintiff presumably could have
filed suit during the pendency of the Denver action and the
carriers appeal from the adverse ruling therein, they
certainly were not required to do so because no relief could
have been granted to them. As a matter of fact, the few
shippers who did file suit of whom the Court is aware were
compelled to have all action on their cases stayed (generally
at the request of the carriers) pending final resolution of
the Denver proceedings and the appeal therefrom. We doubt that
Congress intended the statute of limitations to run during the
time that no enforceable order existed.*fn7 Accordingly, we
construe § 16(3)(f) of Title 49 of the United States Code to
require a party to bring suit for the enforcement of a
Commission order for the payment of money within one year's
time from the date of that order excluding any time in which
the effectiveness of that order has been stayed at the request
of the parties ordered to make the payment.
The next issue which we must consider is whether the
plaintiffs have met the statute of limitations as above
defined. The carriers assert that more than one year elapsed
from the Commission order of June 5, 1969 before the Denver
court first stayed its effectiveness, that the Denver court's
stay expired on January 14, 1971, and that the plaintiffs did
not file suit until October 21, 1971. The errors and omissions
from this argument are three-fold and the Court has been
compelled to secure from the Clerk of the Court for the United
States District Court ...