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June 8, 1972


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.
  refund order].


  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 ...

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