Petition for Review of an Order of the Interstate Commerce Commission Docket No. 37462.
Cummings, Chief Judge, Pell, Circuit Judge, and Bailey Brown, Senior Circuit Judge.*fn*
BAILEY BROWN, Senior Circuit Judge.
This petition for review of an order of the Interstate Commerce Commission (ICC) was brought by Humko Products Division of Kraft, Inc., (Humko), after the ICC determined Humko was not entitled to reparations and other relief because of alleged overcharges by the intervening respondent railroads. The two issues before the court are: (1) whether this court has jurisdiction to review the ICC order involved in this proceeding, and (2) if this court does have jurisdiction, whether the ICC erred in denying Humko's claim for reparations and other relief. For the reasons stated herein, we determine that this court does have jurisdiction to review the ICC order, and that the ICC's decision must be affirmed.
The facts are not disputed. Between May 1975, and September 1976, Humko shipped 144 railroad carloads of soybean oil from origins in Iowa to destinations in Georgia. The shipments were accorded "transit privileges" at Champaign, Illinois, or Memphis, Tennessee.*fn1 The railroads*fn2 collected the transportation charges under the single-factor commodity rate, which is a through rate from Iowa to Georgia. This tariff, however, included the "aggregate of intermediates" rule which provided that the through rate published in the tariff would not apply if a lower aggregate or combination of intermediate rates could be constructed from Iowa to Georgia.
Humko contends it was entitled to a combination rate on its shipments determined by two separate tariffs. The first tariff set a rate from Iowa via the transit stations (with transit privileges) in Champaign or Memphis to Jackson, Tennessee, and the second tariff set a rate from Jackson, Tennessee to the Georgia destinations. The combination of these two tariffs would have enabled Humko to ship its soybean oil from Iowa to Georgia at a lower rate than would the single, through rate tariff applied by the railroads. The second tariff in Humko's proposed combination (from Jackson, Tennessee, to Georgia), however, contained a restriction that "rates will not apply on shipments accorded transit privileges." The primary dispute before this court stems from the ICC's determination that the restriction in the tariff from Jackson, Tennessee to Georgia precluded that tariff's application to Humko's shipments since, it determined, these were "shipments" from Iowa to Georgia and these "shipments" had been accorded transit privileges. Accordingly, the ICC approved the application of the through rate as applied by the railroads.
Before proceeding to the merits of this cause, we must first address the contention of the railroads, in which the ICC joined, that this court does not have jurisdiction to review the ICC order challenged here by Humko.
It is clear that 28 U.S.C. § 2342*fn3 provides the courts of appeals with exclusive jurisdiction to review final orders of the ICC made reviewable by 28 U.S.C. § 2321.*fn4 Genstar Chemical Ltd. v. I.C.C., 215 U.S. App. D.C. 1, 665 F.2d 1304, 1307 (D.C. Cir. 1981), cert. denied, 456 U.S. 905, 102 S. Ct. 1750, 72 L. Ed. 2d 161 (1982). There are, however, exceptions to this grant of jurisdiction in the courts of appeals, one being that created by 28 U.S.C. § 1336*fn5 which grants the district courts jurisdiction to review ICC orders "for the payment of money . . . ."
The railroads and the ICC contend that this court does not have jurisdiction because Humko's complaint before the ICC only sought the return of alleged overcharges and that the ICC's order only denied such relief. Humko asserts that this court has jurisdiction because the ICC's decision amounted to an announcement of a new policy. In Humko's view, this new policy would require that all restrictions in local tariffs*fn6 is being used in combination with other intermediate rates to form the lowest possible aggregate of intermediate rates. This policy decision, Humko concludes, involves more than a decision by the ICC denying an order for the payment of money, and therefore this court properly has jurisdiction to review the ICC order.
We recently determined in Pullman-Standard v. I.C.C., 705 F.2d 875 (7th Cir. 1983), that when faced with a jurisdictional question like the one presently before us, "we will adopt the more literal approach suggested in Consolidated Rail Corp. v. I.C.C., [222 U.S. App. D.C. 237, 685 F.2d 687 (D.C. Cir. 1982)]:
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. 685 F.2d at 694."
Pullman-Standard v. I.C.C., 705 F.2d at 880. Thus, we must look to the nature of the ICC's order to determine ...