Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-C-3259 -- Marvin E. Aspen, Judge.
Wood, Circuit Judge, Posner, Circuit Judge, and Campbell, Senior District Judge.*fn*
CAMPBELL, Senior District Judge
This is an appeal by plaintiff, Pullman-Standard (Pullman), from the decision of the district court granting summary judgment for the defendants, the United States and the Interstate Commerce Commission (ICC). Pullman had sought review in the district court of four ICC orders, the last of which had denied Pullman reparations for certain switching charges it had been required to pay to the Rock Island and Pacific Railroad (Rock Island).*fn1 In two separate orders the district court dismissed a portion of the complaint and granted summary judgment as to the remaining claim. In the dismissal order, the court concluded that it only had jurisdiction to review the fourth ICC order, and the subsequent summary judgment upheld that fourth order. Pullman argues on appeal that the district court had jurisdiction to review all four orders of the ICC under 28 U.S.C. § 1336(a).*fn2 While jurisdictional issues permeate this case, it is uncontested that this Court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.
The procedural history of this case is, unfortunately, quite lengthy. It is also unfortunate that a detailed recitation of the procedural history is necessary to understand the issues in this case. On June 2, 1975, Pullman filed a complaint with the ICC claiming that a tariff provision eliminating certain reciprocal switching in the Chicago switching district by Rock Island was in violation of the ICC's orders in Switching Rates in Chicago District, 177 I.C.C. 669 (1931) and Switching Rates in Chicago Switching District, 195 I.C.C. 89 (1933) (hereinafter referred to as the Switching cases), and various provisions of the Interstate Commerce Act. Prior to the adoption of that tariff Pullman had not paid Rock Island a separate charge for switching service, under the premise that the charge was included in the rate assessed by the line-haul carrier. However, the tariff in issue provided that a fee would be charged for this service for shipments of rail passenger coaches from Pullman's 111th Street facilities. Pullman's complaint sought an order from the ICC compelling Rock Island to cancel the tariff, to waive collection of charges billed, and to refund amounts collected. The Administrative Law Judge (ALJ) to whom the case was referred concluded that the tariff did not violate the orders in the Switching cases or any provision of the Interstate Commerce Act and therefore denied any relief. (This will be referred to as the First Decision.) Pullman filed a Petition for Further Hearing seeking to introduce additional evidence. This petition was denied (Second Decision).Pullman then brought an appeal to the Commission's Review Board. On March 21, 1977, the Board entered a report and order (Third Decision) which upheld, in part, the ALJ's decision. The order drew a distinction between intradistrict rail movements (those moving wholly within the Chicago switching district) and line-haul rail movements (those moving to points outside the Chicago switching district). The Board upheld the ALJ as to the line-haul movements but concluded that the tariff, as applied to intradistrict movements, violated the Commission's orders in the Switching cases. Therefore, the Commission ordered Rock Island to cancel the tariff provision and directed Pullman to submit a reparation statement.*fn3 Pullman submitted a statement, however it sought reparations for charges assessed for the line-haul movements and Rock Island denied liability. Pullman then sought an order compelling payment, but on September 18, 1978 Chairman O'Neal denied the request because the Third Decision had determined that the tariff was unlawful only as to intradistrict shipments (Fourth Decision).
On November 14, 1978, Pullman sought review of all four decisions of the ICC in this Court pursuant to 28 U.S.C. § 2321(a).*fn4 The ICC and the United States filed a brief arguing that the Court lacked jurisdiction to review the Third Decision because the appeal had been filed more than sixty days after that order became final. Rock Island submitted a brief contending that judicial review of the Fourth Decision must proceed initially in a district court pursuant to 28 U.S.C. § 1336(a). Pullman then moved to dismiss voluntarily the petition for review, which this Court granted on May 14, 1979.
On August 7, 1979, Pullman filed its complaint in the District Court for the Northern District of Illinois seeking review of all four ICC decisions. After receiving briefs addressing jurisdiction, Judge Crowley dismissed that portion of the complaint seeking review of the first three ICC decisions.*fn5 He concluded that review of those decisions was not within the jurisdiction of the district court because they involved more than simply the payment of money, see 28 U.S.C. § 1336(a). Subsequently, Judge Aspen entered an order granting summary judgment for the defendants, thus upholding the ICC's Fourth Decision. Pullman then filed this appeal.
Pullman's appeal does not attack the merits of the summary judgment order, but rather claims error in its predicate, the dismissal order. Pullman makes three arguments for the proposition that the district court erred in concluding that it lacked jurisdiction to review the Third Decision: (1) the Third Decision was an order for the payment of money and therefore reviewable by the district court under 28 U.S.C.§ 1336(a); (2) even assuming that the Third Decision involved more than the payment of money, Pullman's complaint in the district court only raised the issue of monetary relief and thus was within the purview of 28 U.S.C. § 1336(a); (3) judicial review of an administrative decision must encompass the entire administrative record, not just the last order.
Judicial review of ICC orders is, of course, governed by statute. 28 U.S.C. § 2321(a) provides that jurisdiction for review of ICC rules, regulations, and orders lies in the courts of appeals, see fn. 4 supra. The Hobbs Act provides, in pertinent part, that the court of appeals' jurisdiction under § 2321 is exclusive, 28 U.S.C. § 2342(5).*fn6 The only exception to this general grant of jurisdiction is 28 U.S.C. § 1336(a) which provides for review in the district court of ICC orders "for the payment of money or the collection of fines, penalties, and forfeitures," see fn. 2, supra. The courts' jurisdictions under these statutes are mutually exclusive,*fn7 see Consolidated Rail Corporation v. ICC, 222 U.S. App. D.C. 237, 685 F.2d 687, 692 fn. 12 (D.C. Cir. 1982) (and cases cited therein). This bifurcated appeal system is not a recent development, although prior to 1975 matters reviewable under § 2321 were heard by a three-judge district court with a direct appeal to the Supreme Court, see 28 U.S.C. § 2321 (1970 ed.).
In United States v. ICC, 337 U.S. 426, 93 L. Ed. 1451, 69 S. Ct. 1410 (1949), the court addressed the question of whether an ICC order denying reparations should be heard by a one-judge district court or a specially convened three-judge district court. (At that time, 49 U.S.C. § 9 provided for enforcement of reparation awards in single-judge district courts, but was silent as to the proper forum for review of denials of reparations.) The legislative history indicated that Congress intended the accelerated appeal procedure of the three-judge court to be utilized for ICC orders of national or widespread interest, while the single-judge courts were intended to review ICC orders involving local and isolated issues. The court noted that cases involving only monetary relief normally would be only of local interest, Id. at 442. Furthermore, appeals from denials of reparations would involve the same parties, statutes, and claims as those involving reparations awards, Id. at 443.Therefore, the court held that appeals from ICC orders denying reparations should be heard in single-judge district courts.
In the case sub judice, the ICC argues that the principle to be derived from United States v. ICC is that:
[T]he importance and effect of a[n] [Interstate Commerce] Commission decision, rather than its form calling for grant or denial of money payment, determines the proper reviewing court. ICC brief, p. 18 n.10.
Some courts have adopted this type of test, see Admiral-Merchants Motor Freight, Inc. v. United States, 321 F. Supp. 353 (D. Colo. 1971) (three-judge district court), aff'd mem., 404 U.S. 802, 30 L. Ed. 2d 37, 92 S. Ct. 51 (1971) (jurisdiction of appeal seeking annulment of ICC order in three-judge district court because of "the high importance of the case"); Empire-Detroit Steel Div. of Cyclops Corp. v. ICC, 659 F.2d 396 (3d Cir. 1981) (review of ICC orders denying reparations on legal or policy grounds is available by petition for review in the courts of appeals); see also, Island Creek Coal Sales Co. v. ICC, 561 F.2d 1219 (6th Cir. 1977); Consolidated Rail Corporation v. ICC, supra, 685 F.2d at 697, 698 (Celebreeze, J., concurring). The Court of Appeals for the District of Columbia Circuit, however, has taken the position that,
The nature of the ICC's order, not the difficulty, novelty, or general importance of the legal questions raised by the order, controls the question of review jurisdiction. Consolidated Rail Corp. v. ICC, supra, 685 F.2d 687, 694; see also, Genstar Chemical Limited v. ICC, 215 U.S. App. D.C. 1, 665 F.2d 1304, 1307 (D.C. Cir. 1981), cert. den. ...