Sprecher and Tone, Circuit Judges, and Grant, Senior District Judge.*fn*
The petitioning railroads ask us to set aside an order of the Interstate Commerce Commission finding them to have exacted freight rates that violated § 2 of the Interstate Commerce Act, 49 U.S.C. § 2, and ordering reparations in the amount of $66,886.78 plus interest, to be paid to the intervening respondent. We affirm on the ground that the issues presented were decided by a federal court of coordinate status in an earlier appeal in this same case, A. Lindberg & Sons, Inc. v. United States, 408 F. Supp. 1032 (W.D.Mich. 1976) (3-judge court), and, therefore, the doctrine of "law of the case " forecloses reconsideration of these issues by us.
In 1970 A. Lindberg & Sons, Inc., entered into a subcontract to build a watertight lining for a sediment pond, which was part of a paper mill project in Groos, Michigan. For this purpose Lindberg ordered 8,720 tons of bentonite clay, which was shipped from Belle Fourche, South Dakota, to Groos over the lines of the three petitioning railroads. Lindberg paid the railroads' published point-to-point freight rate for the bentonite shipments.
During this same period, a substantially lower freight rate on bentonite clay was in effect for shipments to iron ore pelletizing plants located in Wisconsin, Minnesota, and the Upper Peninsula of Michigan. One of these plants is in Marquette County, Michigan, approximately 50 miles east of Groos and on the same railroad line. This plant is therefore 50 miles further from the shipping point than Groos. The shipments to both destinations were transported together in the same type of car and in the same quantities per car. Because of the disparate rates, Lindberg's freight costs for the bentonite movements were higher than those for shipments to the Marquette plant or the other iron ore plants.*fn1
Lindberg filed a complaint before the Interstate Commerce Commission alleging that the rates charged it were unjust and unreasonable, unjustly discriminatory, and unduly prejudicial and preferential, in violation of §§ 1, 2, and 3 of the Interstate Commerce Act, 49 U.S.C. §§ 1, 2, and 3. Following proceedings under the Commission's "modified procedure" whereby all evidence was adduced in writing,*fn2 the hearing examiner denied relief on all counts. The decision was affirmed, with minor modifications, by I.C.C. Review Board Number 4, and thereafter by I.C.C. Division 2, acting as an Appellate Division. So far as Lindberg's rate discrimination claim under § 2 was concerned, the Commission denied relief because (1) the rates related to shipments to two different destination points; (2) Lindberg was not in competition with the iron ore pelletizing plants; (3) the different rates could be attributed to entirely different rate structures, viz., the Lindberg rate was pursuant to a point-to-point single movement rate, whereas the lower rate available to the iron ore plants was pursuant to a "proportional" rate; and (4) the lower rate for the iron ore plants was justified because the plants were faced with a threat of foreign competition for their services.
At that time, former 28 U.S.C. § 2325 (repealed by Pub.L. 93-584, § 7, 88 Stat. 1917 (1975)) required that an action to review an order of the Commission be heard by a three-judge district court. Lindberg brought such an action in the Western District of Michigan, where it has its principal place of business.
The three-judge court affirmed the Commission with respect to Lindberg's § 1 and § 3 claims. With respect to the § 2 claim, however, the order was vacated and the proceeding was remanded to the Commission for further proceedings not inconsistent with the court's opinion. A. Lindberg & Sons, Inc. v. United States, supra, 408 F. Supp. at 1044. Although the court invited the parties to offer additional evidence on remand, see id. at 1042, and the case was accordingly "reopened for further consideration" by an order of the Commission, no additional evidence was offered.
After reconsideration of the case in compliance with the court's mandate, the full Commission ordered the railroads to pay Lindberg reparations premised upon a finding that the rate charged Lindberg was unjustly discriminatory in violation of § 2. A. Lindberg & Sons, Inc. v. Chicago and N.W. Transportation Co., 353 I.C.C. 283 (1977). That order of the Commission is now before us for review on the petition of the railroads pursuant to 28 U.S.C. § 2321 (as amended by Pub.L. 93-584, § 5, 88 Stat. 1917 (1975)).
The Railroads' Arguments.
The railroads assail the order on four grounds, all of which were dealt with in the opinion of the three-judge court:
First. The railroads attack the Commission's determination that § 2 was violated notwithstanding the fact that the destination of shipment was not identical to the destinations of the shipments to iron ore plants. The railroads argue that, as a matter of law, § 2 only applies when the differing rates are applied to shipments to the same destination point. The three-judge court, however, categorically rejected this interpretation of § 2, holding that the Commission had erred in adopting it, that the words "substantially similar circumstances and conditions" in § 2 do not require identical destinations, and that "whether the ...