Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 C 996. RICHARD B. AUSTIN, Judge.
Cummings and Stevens, Circuit Judges, and Campbell,*fn* Senior District Judge.
This is an action in which two shippers seek to recover refunds for overcharges on shipments moving after May 20, 1968, and before September 1, 1969, from several motor carriers. The district court thought the action barred by the one-year limitations provision of § 16(3)(f) of the Interstate Commerce Act, 49 U.S.C. § 16(3)(f). We do not agree.
Plaintiffs' claims are authorized by § 16(2) of the Interstate Commerce Act, 49 U.S.C. § 16(2),*fn1 as construed by this court in Aluminum Company of America v. Admiral Merchants Motor Freight, Inc., 486 F.2d 717 (1973). Only a few of the complex circumstances of this litigation are relevant for our decision.*fn2
The refund obligation was originally described in an order entered in Docket No. 34971, the proceeding entitled "Increased Rates and Charges From, To and Between Middlewest Territory," on April 25, 1968.*fn3 On that date, acting on a request from the carriers and certain other parties, the Commission postponed a hearing on the lawfulness of the carriers' proposed rates conditional upon respondents' compliance with an order "to make refunds to the shippers on any shipments moving after May 20, 1968, to the extent that the increases or any portions thereof under investigation herein are not approved by the Commission."*fn4
After a full hearing, on June 5, 1969, the Commission found that the carriers had not sustained their burden of proving that the proposed increases were just and reasonable, ordered the rates cancelled, and, in accordance with the conditional refund order entered on April 25, 1968, further ordered that the carriers "be, and they are hereby, required to refund to shippers the charges on shipments moving after May 20, 1968, to the extent that such charges included the increases herein found not shown to be just and reasonable."*fn5
On August 29, 1969, the Commission denied a petition by the carriers to reconsider and vacate the refund provision of the June 5, 1969, order. The August 29, 1969, order supplemented the language of the June 5 order by directing the carriers to "make refund to shippers presenting their claims to the carriers supported by paid freight bills or other appropriate evidence."*fn6 The carriers filed another petition for reconsideration which the Commission denied on October 27, 1969.
The carriers then sought judicial review of the validity of the Commission's order. On January 26, 1970, the carriers filed a complaint in the United States District Court for the District of Colorado seeking a declaration that the Commission order was invalid, and an injunction against enforcement of the refund obligation. On June 19, 1970, that court granted a motion for a temporary restraining order; enforcement of the Commission's order was stayed until further order of court. Except for a period of about seven weeks, a stay order was in effect until the judicial proceedings were terminated in both the United States Supreme Court and the United States Court of Appeals for the Tenth Circuit. On December 7, 1971, the Supreme Court denied rehearing of its affirmance of the decision of the three-judge court in Colorado upholding the Commission's order; the stay of the ICC order was lifted on December 27, 1971. On January 7, 1972, the Secretary of the Interstate Commerce Commission filed a formal notice advising interested parties that its refund order "is now fully effective and enforceable at the suit of the affected shippers."
Section 16(3)(f) of the Interstate Commerce Act provides:
"A complaint for the enforcement of an order of the Commission for the payment of money shall be filed in the district court or the State court within one year from the date of the order, and not after."
Plaintiffs filed their complaint in the present case on April 27, 1971, well before judicial review of the Commission's order had been completed, but more than a calendar year after the Commission had entered its order directing the refund. The question before us is, when did the Commission's order become final for purposes of § 16(3)(f)? The defendants argue that the date of the order is June 5, 1969, the date on which, after a full hearing, the Commission found that the carriers had not sustained their burden of proving their proposed rate increases were just and reasonable.
The plaintiffs offer alternative theories. First, they suggest that "within one year from the order, and not after" means one year from the date fixed for compliance with the Commission's order, and not one year from the time the Commission issues its order. Since the Commission did not prescribe a date on which the carriers would become obligated to pay, specifying rather that the obligation would arise when shippers presented carriers with paid freight bills or other evidence, the dates on which they presented their bills*fn7 are the determinative dates, provided that they acted within a reasonable time.
Alternatively, the plaintiffs argue, in accord with the reasoning of Judge Will in Bela Seating Co. v. Advance Transportation Co., supra*fn8 that the stay of the Commission's order granted in Colorado tolled the statute of limitations, because the ...