D. Review of the ICC Decision
The doctrine of "primary jurisdiction" requires a court to suspend its process and refer a matter to an administrative body "whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of [that] administrative body." United States v. Western Pacific R.R., 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956). The ICC is the administrative agency charged with expert skill and knowledge within the interstate transportation industry. Id. "Congress wanted the [ICC] to answer questions of this sort; and to permit courts to answer these questions independently would threaten the nationwide uniformity of rate that the [ICA] sought." Delta Traffic Service, Inc. v. Transtop, Inc., 902 F.2d 101, 104 (1st Cir. 1990), modified in part, 1990 U.S. App. LEXIS 13339 (1st Cir.).
By Order dated April 18, 1993, the Court stayed this action and referred to the ICC, under the doctrine of "primary jurisdiction", determination of the nature of the carriage and reasonableness of rate. Plaintiff now asks the Court to set aside the ICC decision as "arbitrary and capricious." 5 U.S.C. § 706(2)(A). 28 U.S.C.A. § 1336(b) provides that "the court which referred the question or issue shall have exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend in whole or in part, any order of the Interstate Commerce Commission arising out of such referral." Under 28 U.S.C.A. § 1336(c), request for review must be filed within 90 days from the date the ICC order becomes final.
In the present case, the ICC order was served on July 1, 1993. Plaintiff did not request review until October 25, 1993 when it filed its opposition to Defendants' motion for summary judgment. The Court has no authority to extend the statutory time limit. Burlington Northern, Inc. v. Northwestern Steel & Wire Co., 794 F.2d 1242, 1247 (7th Cir. 1986); Atchison, Topeka and Santa Fe Railway Co. v. Trailer Train, Inc., 455 F. Supp. 520, 523 (N.D. Ill. 1978); Locust Cartage Co. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 341 (1st Cir.) cert. denied 400 U.S. 964, 27 L. Ed. 2d 383, 91 S. Ct. 365 (1970). Plaintiff has cited no authority to support its request that the Court ignore the plain language of § 1336(c) and review the ICC decision.
If the aggrieved party fails to challenge the ICC decision within the statutory period, the ICC decision becomes final and binding upon the referring court. Atchison, Topeka and Santa Fe Railway Co., 455 F. Supp. at 523; Locust Cartage Co., 430 F.2d at 341. If an ICC decision survives review, the referring court must abide by the decision when it decides remaining issues before it. Delta Traffic Service, Inc., 902 F.2d at 104.
Moreover, this Court finds that the ICC decision would survive review under 5 U.S.C. § 706(2). A reviewing court may set aside an agency decision found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 41, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983); Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 42 L. Ed. 2d 447, 95 S. Ct. 438 (1974); Beazer East, Inc. v. United States Envtl. Protection Agency, Region III, 963 F.2d 603, 606 (3rd Cir. 1992); Consolidated Rail Corp. v. United States, 619 F.2d 988, 993 (3rd Cir. 1980).
The Court is not bound by ICC decisions based upon misinterpretation of the ICA. Consolidated Rail Corp., 619 F.2d at 993. However, the scope of review is narrow and the Court may not substitute its judgment for that of the ICC. Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43. The Court must consider whether the agency decision was based on consideration of relevant factors and whether there has been a clear error of judgment. Id. ; Bowman Transp., Inc., 419 U.S. at 285; Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 807 (3d Cir. 1985). "Normally, an agency rule would be arbitrary and capricious if the agency has relied upon factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could be ascribed to a different view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43. Finally, a decision may be arbitrary if it departs from precedent without principled reason therefore. Donovan, 766 F.2d at 807.
In the present case the ICC considered factors relevant to both the "distinct needs" and "continuing agreement" requirements. In particular, the ICC stated:
The contract, moreover, is clearly a bilateral agreement in writing providing for transportation by a carrier, F.P., for a particular broker, Ken Way. It imposed obligations on both parties. Ken Way agreed to use F.P.'s transportation services under its contract carrier authority, tender a minimum volume of freight, and make timely payments. Ken Way maintains that F.P. conducted its operations so as to meet the distinct needs of its customers. F.P. agreed: (1) to assume full value cargo liability for all loss or damage to goods being shipped; (2) to provide cargo insurance; (3) not to solicit Ken Way's brokerage customers; and (4) to binding arbitration procedures for contract disputes . . . . And while the contract does not reference an exact number of shipments to be tendered, the evidence shows that petitioner tendered at least 126 shipments to F.P. after the parties signed the contract.
Ken Way Transp., Inc. -- Petition for Declaratory Order at 3-4. The ICC further cited appropriate precedent.
In light of the ICC decision in Ken Way Transp., Inc. -- Petition for Declaratory Order, and the ICC's primary jurisdiction over the nature of carriage, the Court grants summary judgment in favor of Defendant.
An appropriate Order follows.
Daniel H. Huyett, 3rd, Judge
HUYETT, J. March 15, 1994
Upon consideration of the motion for summary judgment of Defendants Ken Way Transportation, Inc., R.M. Palmer Company, and M. Polaner, Inc., Plaintiff F.P. Corp.'s opposition thereto and Defendants' rebuttal, the Court finds as follows:
1. Following the decision of the Interstate Commerce Commission in Ken Way Transportation, Inc.--Petition For Declaratory Order--Certain Rates and Practices of F.P. Corp., Case No. NOM-40840 (July 1, 1993), no genuine issue of material fact as to the nature of carriage remains.
2. Defendants are entitled to summary judgment as a matter of law.
3. Defendants' motion is GRANTED and summary judgment on the complaint is entered in favor of Defendants.
IT IS SO ORDERED.
Daniel H. Huyett, 3rd, Judge