The Burger Court Opinion Writing Database

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1 The Burger Court Opinion Writing Database ICC v. Aerican Trucking Associations, Inc. 467 U.S. 354 (1984) Paul J. Wahlbeck, George Washington University Jaes F. Spriggs, II, Washington University in St. Louis Forrest Maltan, George Washington University

2 ,i5u.prtutt (Court a tire Anita,)15tatto Atoirittgtatt, Q. 211A4g THE CHIEF JUSTICE April 3, 1984 Re: ICC v. Aerican Trucking Association Dear Thurgood: I voted as I did in this case because we traditionally give great deference to an agency's interpretation of its enabling legislation. For e, 1762(e) as construed by the Coission, affords a basis for decision. If the Court does not follow that course, I cannot join and ay dissent. Regards, Justice Marshall Copies to the Conference

3 $nprtnit qlourt of Ike Prtitstr,$tatto Washington, p. (4. 2ug4g May 22, A ICC v. Aerican Trucking Associations, Inc. Dear Thurgood: I a sorry to have taken so long on this case, but I had hoped that your changes, ight eet y concerns,. In your second draft, I have probles at pages 1, 11, 13, 14, 16, 17. To ake it easier to follow, I set out below the areas of y concern with suggested changes underlined. With these few changes, I could join. 1. Insert the words "and directly" after the word "closely" in the next to last sentence on page 1, and insert the word "liited" after the word "these" in the last sentence on that page. The two sentences would read as follows: "Although rejection of effective tariffs is a for of reedial power not expressly delegated to the Coission, the reedy as proposed by the Coission in this case is closely and directly related to the Coission's express statutory powers and is designed to achieve objectives set for the Coission by Congress. Under these liited circustances, we hold that the proposed reedy lies within the Coission's discretion." 2. Modify the second full sentence on page 11 and add a third so that the partial paragraph on page 11 would read as follows: "In this case, the Coission argues that the retroactive rejection of rate-bureau tariffs is siply an adjunct to the Coission's 1762(e) rejection authority, and that to the extent that there is an elaboration on that authority, it is necessary to ensure copliance with rate-bureau agreeents, as Congress has directed it to do. In these narrow circustances, we agree." 3. Modify the third full sentence on page 13 so that it would read as follows: "To lie within the Coission's discretionary power, the proposed reedy ust satisfy two criteria: first, the power ust further a specific statutory

4 2 andate of the Coission, and second, the exercise of power ust be directly and closely tied to that andate." 4. Modify the first sentence in the first full paragraph on page 14 to read as follows: "More difficult to answer is the question whether the Coission's conditional approval of otor-carrier tariffs is a eans of policing rate-bureau agreeents sufficiently direct and close to the Coission's statutory andate to warrant approval." 5. Change the first sentence on page 16 to read as follows: "Nevertheless, we agree with the Coission that its new reedy is a justifiable adjunct to its express statutory andate." 6. Change the first full sentence on page 17 to read as follows: "For the foregoing reasons, we conclude that the Coission does not exceed its authority by nullifying effective otor-carrier tariffs subitted in substantial violation of rate-bureau agreeents." Af ; 4 ti

5 THE CHIEF JUSTICE g nprentt (Court of fitt littritar 24atto ttoltingtat, In. (4. 2A4g May 3, 1984 RECEIVED SUPREME eu, U.S. JUSTICE HA PSHALL 134 MAY 3 P12:56 Re: ICC v. Aerican Trucking Ass'n, Inc. Dear Thurgood: My position required a lot of extra work for you to accoodate,particularly at this tie of the year. I thank you for your special effort and I join. Regards, (S)(ee.t3-73 C -n.x- C) rn Justice Marshall Copies to the Conference f./) "r1 C 3. cn cn

6 Awreuto Qiut of *Anita tattis ItufkEttotAnt, P. QT. ripkg JUSTICE W. J. BRENNAN, JR. March 14, 1984 '84 MAR 14 P 2 :26 No Interstate Coerce Coission, et al. v. Aerican Trucking Associations, Inc., et al. Dear Thurgood, Please join e. Sincerely, Justice Marshall Copies to the Conference

7 $1qxratto Qlourt of tfit.state, littuoitirtritalt, ZaPig JUSTICE W.. J. BRENNAN, JR. May 24, 1984 ; xa C) -n Dear Thurgood, No ICC v. Aerican Trucking Association C) C) cn -n I'll leave entirely to your good judgent how any of the Chief's cn suggestions to adopt. I'll accept C) 7J anything you decide upon. Sincerely, 1, C) Justice Marshall rn cc: Justice White Justice Rehnquist 511

8 ,Survint (Court of titeguiter p. Qr. og4g JUSTICE BYRON R. WHITE March 13, 1984 US MAR 13 A1 :38 Re: ICC v. Aerican Trucking Ass'ns, Inc. -a. C -n -4 x Dear Thurgood, I agree. Sincerely, O -n -4 C C) Justice Marshall Copies to the Conference cp O c7). X

9 $nprtnit 141trt of **Pita *at Atokiatoton, 13. Q1. wpig JUSTICE BYRON R. WHITE May 23, 1984 Re: ICC v. Aerican Trucking Association Dear Thurgood, I could put up with the Chief's suggestions 1, 2, 5 and 6. I have y doubts, however, about 3 and 4 which see to state a general rule about the exercise of adinistrative discretion for which the Chief cites no authority. I shall leave the atter to you, however. Sincerely yours, Justice Marshall cc: Justice Brennan Justice Rehnquist cp

10 To: The Chief Justice Justice Brennan Justice White Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Justice O'Connor Fro: Justice Marshall Circulated: MAR st DRAFT Recirculated: I Motor carrier rate bureaus are groups of otor carriers fored to negotiate collective rates. Since the Reed- Bulwinkle Act of 1948, otor carriers within the jurisdiction of the Interstate Coerce Coission ("Coission" or "ICC") have enjoyed iunity fro the antitrust laws to enter into rate bureaus and to subit collective rates to the Coission. Ch. 491, 62 Stat To receive this iu SUPREME COURT OF THE UNITED STATES No INTERSTATE COMMERCE COMMISSION ET AL., PETITIONERS v. AMERICAN TRUCKING ASSOCIATIONS, INC. ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [March, 1984] JUSTICE MARSHALL delivered the opinion of the Court. This case presents a challenge to an effort by the Interstate Coerce Coission to create a new reedy to enforce otor-carrier rate-bureau agreeents. The reedy at issue is the Coission's authority to reject effective tariffs that have been subitted in substantial violation of ratebureau agreeents. As we have recognied in the past, the Interstate Coerce Coission has considerable discretion to fashion reedies in furtherance of its. statutory responsibilities. Trans Alaska Pipeline Rate Cases, 436 U. S. 631, 654 (1978). Although rejection of effective tariffs is a new for of reedial power for the Coission, we hold that the reedy lies within the Coission's inherent authority to take actions that are reasonably designed to achieve objectives set for the Coission by Congress. -n r- rri -n rn 5 1 t7j -n. rn

11 To: The Chief Justice Justice Brennan Justice White Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Justice O'Connor Fro: Justice Marshall Circulated. r^r: '3 2nd DRAFT Recirculated: -11 SUPREME COURT OF THE UNITED STATES -n Nos AND INTERSTATE COMMERCE COMMISSION, ET AL., PETITIONERS r- r v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. CA AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., -n PETITIONERS v. INTERSTATE COMMERCE COMMISSION ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [April, 1984] JUSTICE MARSHALL delivered the opinion of the Court. _ This case presents a challenge to an effort by the Interstate Coerce Coission to create a new reedy to enforce otor-carrier rate-bureau agreeents. The reedy at co issue is the Coission's authority to reject effective tariffs that have been subitted in substantial violation of ratebureau agreeents. As we have recognied in the past, the -n Interstate Coerce Coission ("Coission" or "ICC") has discretion to fashion reedies in furtherance of its statutory responsibilities. Trans Alaska Pipeline Rate Cases, 436 U. S. 361, 654 (1978). Although rejection of effective tariffs is a for of reedial power not expressly delegated to the Coission, the reedy as proposed by the Coission in this case is closely related to the Coission's express statutory powers and is designed to achieve objectives set for the Coission by Congress. Under these circustances, we hold that the proposed reedy lies within the Coission's discretion.

12 ,&sitpretitt (Ilona of the Atiteit ;$ttitto atilringtott, p. (4. 2{Ipp JUSTICE THURGOOD MARSHALL_ PERSONAL May 23, 1984 Re: No ICC v. Aerican Trucking Assoc. Dear Bill, Byron and Bill: Here is a letter fro the Chief aking quite a few suggested aterial additions to y proposed opinion. I would appreciate your suggestions as to what, if any, changes can be ade. Sincerely, T.M. Justice Brennan Justice White Justice Rehnquist

13 STY LISI I R ) iilkyi,j,644wwke To: The Chief Justice Justice Brennan Justice White Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Justice O'Connor Fro: Justice Marshall Circulated: Recirculated: U.. 3rd DRAFT SUPREME COURT OF THE UNITED STATES 7:1 Nos AND r- INTERSTATE COMMERCE COMMISSION, ET AL., r- PETITIONERS v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. co -n AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., PETITIONERS v. INTERSTATE COMMERCE COMMISSION. ET AL. _ x C) ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT -' [April, 1984] CA JUSTICE MARSHALL delivered the opinion of the Court. 5 This case presents a challenge to an effort by the Inter- r- state Coerce Coission to create a new reedy to en- co force otor-carrier rate-bureau agreeents. The reedy at issue is the Coission's authority to reject effective tariffs that have been subitted in substantial violation of ratebureau agreeents. As we have recognied in the past, the Interstate Coerce Coission ("Coission" or "ICC") has discretion to fashion reedies in furtherance of its statutory responsibilities. Trans Alaska Pipeline Rate Cases, cn 436 U. S. 361, 654 (1978). Although rejection of effective tariffs is a for of reedial power not expressly delegated to the Coission, the reedy as proposed by the Coission in this case is closely and directly related to the Coission's express statutory powers and is designed to achieve objectives set for the Coission by. Congress. Under these liited circustances, we hold that the proposed reedy lies within the Coission's discretion.

14 PI To: The Chief Justice,,,,,,,Justice Brennan Justice White Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Justice O'Connor Fro: Justice Marshal 4th DRAFT SUPREME COURT OF THE UNITED STATES No "1-1 j s s /4''r3 L INTERSTATE COMMERCE COMMISSION, ET AL., PETITIONERS v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [June, 1984] JUSTICE MARSHALL delivered the opinion of the Court. This case presents a challenge to an effort by the Interstate Coerce Coission to create a new reedy to enforce otor-carrier rate-bureau agreeents. The reedy at issue is the Coission's authority to reject effective tariffs that have been subitted in substantial violation of ratebureau agreeents. As we have recognied in the past, the Interstate Coerce Coission ("Coission" or "ICC") has discretion to fashion reedies in furtherance of its statutory responsibilities. Trans Alaska Pipeline Rate Cases, 436 U. S. 361, 654 (1978). Although rejection of effective tariffs is a for of reedial power not expressly delegated to the Coission, the reedy as proposed by the Coission in this case is closely and directly related to the Coission's express statutory powers and is designed to achieve objectives set for the Coission by Congress. Under these liited circustances, we hold that the proposed reedy lies within the Coission's discretion. Motor carrier rate bureaus are groups of otor carriers fored to negotiate collective rates. Since the Reed- Buiwinkle Act of 1948, otor carriers within the jurisdiction of the Coission have enjoyed iunity fro the antitrust

15 Aprtnu (Curt of tit2 pawl Atatto "Iiiuglint, P. (C. 2P4g JUSTICE THURGOOD MARSHALL June 6, 1984 MEMORANDUM TO THE CONFERENCE Re: Cases held for ICC v. ATA, Inc., No Three cases were held for ICC v. ATA: Aberdeen & Rockfish Railroad Co. v. United-States, No , and National Motor Freight Traffic Association, Inc., v. United States, No : When carriers propose new tariffs to the ICC, the carriers are required to place a sybol next to each tariff indicating whether the tariff has increased, decreased, or reained the sae. The sybols are designed to give notice to affected parties, who ay wish to challenge the changes. Prior to 1979, the ICC staff reviewed every tariff filing for syboliation errors before the tariff went into effect. If errors were discovered, the tariff was rejected before it went into effect. After 1979, budgetary cutback ade it ipossible for the Coission to continue to review the syboliation of every proposed tariff. In 198, the ICC issued an order announcing its new policy for dealing with tariff syboliation. Under this ICC order, issybolied tariff increases would be invalid, even after an increase has gone into effect. Petitioners in these two cases separately challenged the ICC order as beyond the Coission's authority. After consolidating the cases, the Fifth Circuit upheld the ICC order as a valid exercise of Coission power under 49 U.S.C. S1762(e). The Circuit reasoned that 1762(e) authories the Coission to reject a tariff that has gone into effect if the tariff was not filed in the prescribed forat. The Fifth Circuit's analysis is inconsistent with this Court's decision in ICC v. ATA, Inc. We held in that case that 1762(e) does not give the Coission general authority to nullify effective tariffs. Although section 1762(e) cannot support the Coission's action, it is possible that the nullification of issybolied tariffs nevertheless is a legitiate exercise of the Coission's discretionary authority. In ICC v. ATA, the Court found that the Coission had discretionary authority to nullify effective tariffs subitted in substantial violation of rate-bureau agreeents. This ruling was based on the facts that the ICC has a statutory andate to supervise rate-bureau agreeents and that the nullification of tariffs subitted in et g 5 2: cro cm

16 e 5uprorte (qourt a tilt 2attiftb,Stairs raokirtigtan, (q. 2i )g JUSTICE HARRY A. BLACKMUN January 16, 1984 Re: No ICC v. Aerican Trucking Associations, Inc. Dear Sandra: You, Lewis, John, and I are in the dissent in is early for e to do this, but I wondered whether willing to undertake the dissent. It seeed to e the issues very well in ind. this case. It you would be ro1 that you had Sincerely, A O S 72o. s Justice O'Connor cc: Justice Powell Justice Stevens S Oft C") va

17 January 19, 1984 Re: No , ICC v. Aerican Trucking Associations, Inc. Dear Sandra: Your note of this orning propts e to be perfectly candid. I have the assignent power for the dissent in this case and in due course I propose to exercise it. I doubt that you are any ore burdened with respect to ajorities and dissents than any of the rest of us. Sincerely, HA Justice O'Connor

18 .uprtutt ollourt of Anita,steno littoitington, Q. wpkg JUSTICE HARRY A. BLACKMUN January 27, 1984 Re: No ICC v. Aerican Trucking Associations, Inc. Dear Lewis and John: Sandra has indicated that she will take on the dissent in this case. I therefore a aking that assignent a definite one. Sincerely, Justice Powell Justice Stevens cc: Justice O'Connor

19 March 29, 1984 Re: No ICC v. Aerican Tr -kiriaaall12211e111 Dear Sandra: I feel your proposed dissent is ost effective. I have no suggestions and shall join it when it is circulated. I appreciate your taking on the work of Li s dissent. Sincerely, 14A6 Justice O'Connor

20 ,%prntt (Cone of tilt xittatr,tt.tesx raoiriatotint, Ta. Q. rrptg JUSTICE HARRY A. BLACKMUN March 3, 1984 Re: No ) ICC v. Aerican Trucking Associations, Inc. No ) Aerican Trucking Associations, Inc. v. ICC Dear Sandra: Please join e in your dissent for these two cases. Sincerely, Justice O'Connor cc: The Conference

21 5uprtutt (Court of till, Path tatres Paotrittutort, cq. 2ng-x4 JUSTICE HARRY A. BLACKMUN May 3, 1984 Re: No , ICC v. Aerican Trucking Associations, Inc. Dear Thurgood and Sandra: This is perhaps a trivial inquiry. In your respective circulating opinions, now ready for announceent, the heading is double. It also includes No , Aerican Trucking Associations, Inc. v. ICC. My records distinctly show that certiorari was granted in No on June 2, 1983, but that No was a hold for No The appendix and briefs filed bear only the one nuber. Should the opinions not be a single header rather than a double header, or does it ake no difference? Justice Marshall Justice O'Connor cc: The Conference

22 nature (t ours of tirt Ilititttr Otatto Igasfringtott, 2.aptg JUSTICE LEWIS F. POWELL, JR. S^C: March 13, 1984 '84 PIAR 13 P 3 : ICC v. Aerican Trucking Dear Thurgood: As I was in dissent at Conference, I will await further writing. Sincerely, Justice Marshall lfp/ss cc: The Conference

23 At= CLItrui of ti1r linitat Of et El *alatituatan, 211g4g SUP JUS-: CRAM SCRS OF JUSTICE LEWIS F. POWELL, JR. '84 MAR 33 A9 :43 March 3, ICC v. Aerican Trucking Aerican Trucking v. ICC -a a x rn Dear Sandra: r- Please join e in your dissent. Sincerely, -n ti Justice O'Connor lfp/ss cc: The Conference ci) 5 fl rn

24 . itiltrute One of tilt Anita,intro noitington, 313. (4. 2i/g4g ` JUSTICE WILLIAM H. REHNQUIST March 12, 19845UP'' JUS7' Re: No ICC v. Aerican TruckinsAstfir9 taerfl Inc. -11 Dear Thurgood: Please join e. Sincerely, ^, Z _x Justice Marshall cc: The Conference I- C) ti C C cn r-- -n C) cn

25 ivrtttt Ourt of Litt AtittZt liknoiringtan, A). (C. aptg tatrif JUSTICE WILLIAM H. REHNQUIST May 24, 1984 Re: No ICC v. Aerican Trucking Association Dear Thurgood: I think the Chief's proposed changes are largely a atter of adverbs and adjectives, and I would have no difficulty if you accepted any or all of the. I leave the atter to you. Sincerely, 21/14=---- Justice Marshall cc: Justice Brennan Justice White SI ht.( 51 t.j

26 ,Ouvrtute (gaitrt of t1 Ptitett Atatto toiringion, 113. Q. rpig JUSTICE JOHN PAUL STEVENS SUP`E JUST." p2ch 13, 1984 '84 MAR 13 Re: ICC v. Aerican Trucking Assn. Dear Thurgood: Although I agree with your explanation of why 1762(e) does not provide the Coission with the rejection power that it clais, I a not convinced by your discussion of the Coission's inherent power and therefore will wait for Sandra's writing in dissent. Respectfully, Justice Marshall Copies to the Conference

27 gh4nnt Qlclaf tly Patttr Otutto waititingtott, p. QT. 2A4 4 S JUSTL JUSTICE JOHN PAUL STEVENS '84 MAR 33 A9 :43 March 3, 1984 Re: ICC v. Aerican Trucking Assns.; Aerican Trucking Assns. v. ICC Dear Sandra: Please join e. Respectfully, () / Jusice O'Connor Copies to the Conference

28 Aitirreutt (4ourt of tilt 'Anita State% Thwitittoton,p. apig JUSTICE SANDRA DAY O'CONN O R January 19, 1984 No ICC v. Aerican Trucking Associations, Inc. Dear Harry, I would prefer to wait until the assignents are ade before deciding whether to take on another dissent, if that is all right as far as you are concerned. Sincerely, Justice Blackun cc: Justice Powell Justice Stevens

29 twrtutt (Court cf t1r linittb $ttta 'Pat kingivn,p. Q. 2IIpig JUSTICE SANDRA DAY O' CO NOR January 23, 1984 No ICC v. Aerican Trucking Associations, Inc. Dear Harry, If your assignent offer is still open for the dissent in this case I would be happy to try to draft one. Sincerely, Justice Blackun cc: Justice Powell Justice Stevens

30 AuprtInt (purt of tie With.,;$ tat.to Atoilingtott,p. (C. apig JUSTICE SANDRA DAY O'CONNOR March 13, 1984supF=7 JUS Dear Thurgood, '84 MAR 13 P1 :4 No ICC v. Aerican Trucking Assoc. In due course, I will be circulating a dissent in this case. Sincerely, 17- C C) -n -4 I- I- C) Cn K C (1) Justice Marshall -" F Copies to the Conference O C)

31 gjvitri ttidearita-,tatto aoltingtott,p. (C. Zupig JUSTICE SANDRA DAY O'CONNO R March 27, 1984 No ICC v. Aerican Trucking Association Dear Harry, Attached is a draft of a proposed dissent in the Aerican Trucking Association case. I thought I would see if you had any suggestions or changes before general circulation. I a open to any of your suggestions. Sincerely, 5 = S Justice Blackun Attachent So

32 1st DRAFT To: The Chief Justice Justice Brennan Justice White Justice Marshall Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Fro: Justice O'Connor Circulate& SUPREME COURT OF THE UNITED STATES Nos AND Recirculated: <1) (3 4 t' INTERSTATE COMMERCE COMMISSION, ET AL., PETITIONERS r v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. CI) AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., PETITIONERS v. INTERSTATE COMMERCE COMMISSION, ET AL. 3 ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF cr) APPEALS FOR THE ELEVENTH CIRCUIT -15 [April, 1984] o JUSTICE O'CONNOR, dissenting. This case presents the question whether the Interstate Coerce Coission (Coission) ay nullify a otor r- carrier tariff at any tie after it has becoe effective. Such u3 nullification renders the carrier liable to shippers for the 73 aount by which the rejected rate exceeds the last rate the carrier has lawfully filed. The Court quite correctly reasons -n that 1762(e) of the Interstate Coerce Act (Act), 49 U. S. C. 1762(e), does not authorie the Coission to reject effective tariffs. See ante, at 7-1. Reading 1762(e) to authorie such action would indeed give the Coission cn an "unbridled discretion" that Congress did not intend it to have. See ante, at 9. However, after having correctly rejected 1762(e) as a basis for the proposed rejection power, the Court then ysteriously concludes that the power is within the Coission's "inherent authority" to ensure that shippers adhere strictly to their approved rate bureau agreeents. I frankly do not understand how this alternative "in- -n Cn

33 (p6 To: The Chief Justice Justice Brennan Justice White Justice Marshall Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Fro: Justice O'Connor Circulate 2nd DRAFT Recirculate SUPREME COURT OF THE UNITED STATES Nos AND INTERSTATE COMMERCE COMMISSION, ET AL., PETITIONERS v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., PETITIONERS v. INTERSTATE COMMERCE COMMISSION ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [April, 1984] JUSTICE O'CONNOR, with who JUSTICE BLACKMUN, JUS- TICE POWELL, and JUSTICE STEVENS join, dissenting. This case presents the question whether the Interstate Coerce Coission (Coission) ay nullify a otor carrier tariff at any tie after it has becoe effective. Such nullification renders the carrier liable to shippers for the aount by which the rejected rate exceeds the last rate the carrier has lawfully filed. The Court quite correctly reasons that 1762(e) of the Interstate Coerce Act (Act), 49 U. S. C. 1762(e), does not authorie the Coission to reject effective tariffs. See ante, at 7-1. Reading 1762(e) to authorie such action would indeed give the Coission an "unbridled discretion" that Congress did not intend it to have. See ante, at 9. However, after having correctly rejected 1762(e) as a basis for the proposed rejection power, the Court then ysteriously concludes that the power is within the Coission's "inherent authority" to ensure that shippers adhere strictly to their approved rate bureau agree -a. c -n X- rn - cn -n Cn C) O r- cn

34 SUPRFN'7._ JUST '84 APR -9 A 9 :56 To: The Chief Justice Justice Brennan Justice White Justice Marshall Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Fro: Justice O'Connor 3rd DRAFT Circulated. Recirculated: -U, SUPREME COURT OF THE UNITED STATES -n Nos AND INTERSTATE COMMERCE COMMISSION ET AL., PETITIONERS 1-, v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. cn AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., PETITIONERS v. INTERSTATE COMMERCE COMMISSION ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF cn APPEALS FOR THE ELEVENTH CIRCUIT [April, 1984] I JUSTICE O'CONNOR, with who JUSTICE BLACKMUN, Jusrn" TICE POWELL, and JUSTICE STEVENS join, dissenting. 5 This case presents the question whether the Interstate r- Coerce Coission (Coission) ay nullify a otor co carrier tariff at any tie after it has becoe effective. Such nullification renders the carrier liable to shippers for the aount by which the rejected rate exceeds the last rate the -n carrier has lawfully filed. The Court quite correctly reasons that 1762(e) of the Interstate Coerce Act (Act), 49 U. S. C. 1762(e), does not authorie the Coission to reject effective tariffs. See ante, at 7-1. Reading 1762(e) cn cn to authorie such action would indeed give the Coission an "unbridled discretion" that Congress did not intend it to have. See ante, at 9. However, after having correctly rejected 1762(e) as a basis for the proposed rejection power, the Court then ysteriously concludes that the power is within the Coission's "discretionary power" to ensure that shippers adhere strictly to their approved rate bureau x

35 RECEIVED SUPREME COURT. U.S. JUSTICE M. A.F:SHA! 134 MAY 3 P12 :55 To: The Chief Justice Justice Brennan Justice White. Justice Marshall Justice Blackun Justice Powell Justice Rehnquist Justice Stevens Fro: Justice O'Connor 4th DRAFT Circulate Recirculated: SUPREME COURT OF THE UNITED STATES Nos AND INTERSTATE COMMERCE COMMISSION ET AL., PETITIONERS v. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., PETITIONERS v. INTERSTATE COMMERCE COMMISSION ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [June, 1984] JUSTICE O'CONNOR, with who JUSTICE BLACKMUN, JUS- TICE POWELL, and JUSTICE STEVENS join, dissenting. This case presents the question whether the Interstate Coerce Coission (Coission) ay nullify a otor carrier tariff at any tie after it has becoe effective. Such nullification renders the carrier liable to shippers for the aount by which the rejected rate exceeds the last rate the carrier has lawfully filed. The Court quite correctly reasons that 1762(e) of the Interstate Coerce Act (Act), 49 U. S. C. 1762(e), does not authorie the Coission to reject effective tariffs. See ante, at 7-1. Reading 1762(e) to authorie such action would indeed give the Coission an "unbridled discretion" that Congress did not intend it to have. See ante, at 9. However, after having correctly rejected 1762(e) as a basis for the proposed rejection power, the Court then ysteriously, concludes that the power is within the Coission's "discretionary power" to ensure that shippers adhere strictly to their approved rate bureau C) -n _ x C) O - -n - 4 cn C) -a - 4 c7) -TT. Xi