Icc v. Locomotive Eng’rs, 482 U.S. 270 (1987)

Interstate Commerce Commission v. Brotherhood

of Locomotive Engineers
No. 85-792

Argued November 10, 1986
Decided June 8, 1987 *
482 U.S. 270

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

In October, 1982, petitioner Interstate Commerce Commission (ICC or Commission) issued an order which, inter alia, granted petitioner Missouri-Kansas-Texas Railroad Co. and another railroad the right to conduct operations using the tracks of a third, newly consolidated carrier. In April, 1983, respondent Brotherhood of Locomotive Engineers (BLE) filed a "Petition for Clarification" asking the ICC to declare that the earlier order did not authorize the tenant railroads to use their own crews on routes they had not previously served. In an order served on May 18, 1983, the ICC denied the petition, ruling that its prior decision did not require clarification, since the tenant railroads’ trackage rights applications had proposed that they use their own crews and the Commission’s approval of the applications authorized such operations. BLE and respondent United Transportation Union then filed timely petitions for reconsideration of the May 18 order, contending, inter alia, that the tenant railroads’ crewing procedures violated employee protections that had been included in the original order. In an order served on October 25, 1983, the ICC denied these petitions, responding in detail to the unions’ contentions. On respondent unions’ petitions for review, the Court of Appeals vacated the ICC orders of May 18 and October 25, rejecting the threshold claim that its review was time-barred, and ruling for the unions on the merits.

Held:

1. Although respondent unions’ petitions for Court of Appeals review of the ICC’s October 25, 1983, order were timely filed, they should have been dismissed, since the order itself, whereby the Commission refused to reconsider its May 18, 1983, order refusing to clarify its prior approval order, is unreviewable. Pp. 277-284.

(a) Since an ICC order in a rail proceeding is "final on the date on which it is served," the unions’ petitions for review of the October 25 order, which petitions were filed with the Court of Appeals on December 16 and 23, 1983, were timely under the Hobbs Act, which requires that any person aggrieved by an ICC final order file a review petition within 60 days after the order’s entry. P. 277.

(b) Only when a petition to reopen and reconsider an agency order alleges new evidence or changed circumstances is the agency’s refusal to reopen subject to judicial review, and then only as to whether such refusal was arbitrary, capricious, or an abuse of discretion. Where, as here, the petition to reopen is based not on new data, but only on alleged "material error," the agency’s denial of the petition is not subject to judicial review. Such an appeal would place before the court precisely the same substance that could have been brought before it by timely appeal from the original order. Review in that circumstance would serve no purpose if the reconsideration petition were filed within the agency’s discretionary review period (and within the period for judicial review of the original order), since the petition would toll the judicial review period, and thereby preserve a direct appeal of the original order until reconsideration was denied. On the other hand, if the reconsideration petition were untimely filed, judicial review would serve only the peculiar purpose of extending indefinitely the time within which seriously mistaken agency orders could be judicially overturned, since it would have to be shown not only that the original agency decision was unlawful, but that it was so unlawful that refusal to reconsider it is an abuse of discretion. It is irrelevant that the ICC’s order discussed respondent unions’ substantive claims at length, since it is the Commission’s formal action, rather than its discussion, that is dispositive as to whether reconsideration was in fact granted or denied. Pp. 277-281.

(c) In addition to being implicit in the Hobbs Act’s 60-day limitation on seeking judicial review, nonreviewability of refusals to reopen for material error is established by 5 U.S.C. § 701(a)(2), which precludes judicial review of action "committed to agency discretion by law." Refusals to reopen have traditionally been reviewed only when new evidence or changed circumstances are alleged, and it is impossible to devise an adequate standard of review when only material error is alleged. Application of the ordinary standards for reviewing errors of law and fact would entirely frustrate the Hobbs Act’s time limitation, and the only other alternative -- some form of "clearly erroneous" standard -- would produce the strange result that only really bad mistakes (whatever that term might mean when considerable discretion is already afforded to agencies) would escape the time limitation. Nor does agency action become reviewable merely because the agency gives a "reviewable" reason -- i.e., a reason that courts are well qualified to consider -- for that action. Pp. 281-284.

2. Although the petition for Court of Appeals review of the ICC’s May 18, 1983, order was timely filed, it should have been dismissed, since the order itself, which denied BLE’s petition for clarification of the earlier trackage rights approval order, is not appealable. Pp. 284-287.

(a) Even though the petition for judicial review was filed more than 60 days after the May 18 order was served, it was nonetheless effective, because respondent unions’ timely petitions for administrative reconsideration stayed the running of the Hobbs Act’s filing period until the ICC denied reconsideration. Although a contrary conclusion is suggested by the language of 49 U.S.C. §10327(i), which provides that, notwithstanding the statutory provision authorizing ICC reconsideration of its orders, a Commission action is final and can be appealed on the day it is served, in view of prior constructions of similar language in 5 U.S.C. § 704, that language must be construed merely to relieve parties from the requirement of petitioning for reconsideration before seeking judicial review, but not to prevent reconsideration petitions that are actually filed from rendering orders under reconsideration nonfinal. Pp. 284-285.

(b) If BLE’s petition is treated as a genuine "Petition for Clarification" -- i. e., as seeking only a specification, one way or the other, of what the original order meant -- its denial is unappealable because BLE could not be considered "aggrieved" under the Hobbs Act by the ICC’s unambiguous explanation in the order of what the earlier order meant. If, as is more likely, BLE’s petition was actually treated by the parties as a petition to reopen based on what BLE felt to be a serious error of law, the petition’s denial is unreviewable under the Court’s analysis, supra, since BLE put forth no new evidence or changed circumstances. There can be no exception to the rule of nonreviewability even where an order is ambiguous, and thereby causes a party to think that its interests are not infringed, since the Hobbs Act’s time limit would then be held hostage to ever-present ambiguities. The remedy for such ambiguity is to petition the Commission for reconsideration within the 60-day period, thereby enabling judicial review to be pursued (if ICC resolution of the ambiguity is adverse) after disposition of that petition. Pp. 285-286.

245 U.S.App.D.C. 311, 761 F. 2d 714, vacated and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, and O’CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 287.