American Commercial Lines, Inc. v. Louisville & Nashville Railroad Company/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

392 U.S. 571

American Commercial Lines, Inc.  v.  Louisville & Nashville Railroad Company

 Argued: April 23 and 24, 1968. --- Decided: June 17, 1968

Mr. Justice HARLAN, concurring in the result.

As I understand the Court's position, it is that the Commission has not decided, and thus the Court need not decide, the question expressly left open in ICC v. New York, N.H & H.R. Co., 372 U.S. 744, 83 S.Ct. 1038, 10 L.Ed.2d 108: whether out-of-pocket costs, fully distributed costs, or some third standard should be the criterion for determining, under § 15a(3) of the Interstate Commerce Act, 49 U.S.C. § 15a(3), and the National Transportation Policy (preceding § 1 of the Act), which mode of transportation has the inherent advantage. The reasoning of the Court's opinion is, I take it, that the Commission may properly adhere to a fully distributed costs standard pending its decision in a separate rulemaking proceeding, entitled Rules Governing the Assembling and Presenting of Cost Evidence, Docket No. 34013.

Although I do not doubt that an administrative agency may, where the orderly processes of adjudication or rulemaking require, defer the resolution of issues to more appropriate proceedings, ^[1] I should have had the greatest difficulty in saying that in fact this had occurred, or had been intended to occur, in these cases. ^[2] Nonetheless, given both the Court's conclusion and the isolated statements in the Commission's opinion consistent with that conclusion, I believe it best to acquiesce in the result reached by the Court, rather than to express my views as a single Justice upon the issue which the Court shuns. ^[3]

I would be less than candid if I did not say that I regard this disposition of these cases as unsatisfactory, for what is now done leaves this important question just where our decision of five years ago in the New Haven case left it, and new litigation will now be necessary to resolve the issue.

Mr. Justice DOUGLAS, dissenting.

Notes

1. I do not, however, believe that the Court's position is really supported by its references to the area pricing and moratoria systems approved by the Court in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312. The Court's opinion in those cases emphasized that those administrative devices were warranted in light of the terms of the Natural Gas Act and of the extraordinary difficulties of regulating inpendent producers of that commodity. I should not have thought it useful or desirable to extrapolate from those unusual circumstances any general extension of the discretion of administrative agencies. Of course, the specific proposition taken by the Court today from the opinion in those cases, which had in turn been taken from Los Angeles Gas & Electric Corp. v. Railroad Commission of California, 289 U.S. 287, 304, 53 S.Ct. 637, 643, 77 L.Ed. 1180, may be regarded as a general principle sustained by a number of the Court's opinions. The difficulty, I should have supposed, is that even that general proposition is only dimly relevant to the questions now before us.
2. The appearance and disappearance of the suggestion that these questions must be deferred pending the Commission's rulemaking proceedings on the presentation of cost evidence deserves a more complete chronicle than the Court has given. In 1965, more than three years after the Commission initiated its rulemaking proceeding, 27 Fed.Reg. 4102, and some two months before it decided these cases, the Commission held that 'a comparison of out-of-pocket costs is the most appropriate method for ascertaining * * * inherent competitive advantage' where one of the competing modes is unregulated. The Commission found it unnecessary to defer that question, or even to mention its separate rulemaking proceeding. Grain in Multiple-Car Shipments River Crossings to the So., 325 I.C.C. 752, 772.
3. It is, however, proper to add that I have found no support in the record for the Court's suggestion that 'the railroad appellees here determined to attempt to raise precisely the same issues (as in the rulemaking proceeding) in a much more circumscribed proceeding by unilaterally reducing their rates on one item of traffic.' Ante, at 590-591.