UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: December 11, 1973.
CONTAINER CORPORATION OF AMERICA AND MONTGOMERY WARD & CO., INCORPORATED, PLAINTIFFS-APPELLANTS,
ADMIRAL MERCHANTS MOTOR FREIGHT, INC., ET AL., DEFENDANTS-APPELLEES
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.
STEVENS, Circuit 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 Commission's order was unenforceable during the pendency of the stay.*fn9
We think that none of those arguments offers the most reasonable interpretation of the statute in the circumstances of this case. In our opinion the "date of the order" within the meaning of § 16(3)(f) is the date on which the litigation prosecuted by the carriers to obtain judicial review of the Commission's order was completed. For that litigation was in effect a continuation of the carriers' efforts to persuade the Commerce Commission itself to modify or set aside its original refund order.
In this case, the judicial proceedings did not result in any material change in the Commission's order. However, it was possible that the carriers might persuade the reviewing court to set aside, annul, or sustain, in whole or in part, the order of the Commission.*fn10 Had the order been changed, an aggrieved party might not even have been able to prepare or file a proper action until after the court's decision became final. It would be anomalous to hold that a Commission order is final before judicial review is completed if, but only if, review leaves the Commission's order undisturbed.
No statutory policy would be served by requiring shippers to incur the expense and inconvenience of filing protective suits prior to the termination of the judicial proceedings initiated by the carriers to review the legality of the Commission's order.*fn11 This conclusion is buttressed by the basic policy to ensure uniformity in treatment of shippers. See Midstate Horticultural Co. v. Pennsylvania Railroad Co., 320 U.S. 356, 361, 88 L. Ed. 96, 64 S. Ct. 128.*fn12 This policy would not be served by allowing recovery to shippers who were prudent enough to file claims during the period of uncertainty, and denying recovery to those who justifiably awaited the final determination of the order's validity and enforceability.
It might be suggested that, since an order of the Commission does achieve a finality to which the statute of limitations applies if judicial review is not taken, time should be computed from the date of the Commission's order and judicial review should merely toll the statute for the period of its pendency. Such a rule would effectively shorten the time Congress has authorized for plaintiffs to prepare and file their lawsuits. During the pendency of judicial review, which, as this case demonstrates, may last for a period of years, a suit which had been partially prepared may atrophy: employees change jobs, different counsel may be retained, and pertinent records may be refiled or needed for other purposes. To require plaintiffs in complex matters either to commence protective litigation, or to act within a matter of months or weeks, is inconsistent with the congressional decision to allow shippers one year in which to file suit to enforce a final order of the Commission. In our opinion, the carriers' obligation to refund the excess charges did not "begin to enjoy the shelter of the statute of limitations"*fn13 while they were prosecuting an action under 28 U.S.C. § 1336(a) to set aside or annul, in whole or in part, the Commission's order. We therefore hold that § 16(3)(f) did not begin to run until the judicial review sought by the carriers was concluded and the stay which had been entered by the district court in Colorado was lifted.
It follows that the instant case was filed by plaintiffs even before the applicable statute of limitations began to run. The order dismissing the complaint is reversed and the case remanded for further proceedings.