Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-S-86-1509-MLS. Milton L. Schwartz, District Judge, Presiding.
Before: Alfred T. Goodwin, Mary M. Schroeder and Robert R. Beezer, Circuit Judges. Opinion by Judge Beezer.
This case addresses whether a shipper who did not pay a common carrier's filed rate, but instead paid a lower negotiated rate, may defend an action to collect the undercharge either because the carrier acted as a contract carrier or because the filed rate was unreasonable. The district court granted summary judgment for RTC Transportation, Inc. and Motor Carrier Audit & Collection Company (collectively RTC Transportation) on the grounds that (1) Conagra Poultry Company (Conagra) offered no evidence that RTC Transportation met the statutory definition of a contract carrier; (2) RTC Transportation's unreasonable practices do not afford a defense to the filed rate doctrine; and (3) Conagra did not argue that RTC Transportation's filed rates were unreasonable. We have jurisdiction over the district court's final order. 28 U.S.C. § 1291. We affirm in part, reverse in part and remand to the district court with instructions that it refer to the ICC to determine whether RTC Transportation's filed rates were reasonable.
RTC Transportation shipped cargo for Conagra at tariff rates less than those on file with the Interstate Commerce Commission (ICC). RTC Transportation billed Conagra at the lower rates negotiated by Conagra and RTC Transportation, and Conagra paid them. Following an ownership change, RTC Transportation sought to collect the higher "filed rates" from Conagra.
RTC Transportation filed an "undercharge" claim against Conagra in the district court. Because the ICC has primary jurisdiction over the reasonableness of carriage rates, classifications, rules and practices, see 49 U.S.C. § 10701(a), the district court granted Conagra's motion to refer the matter to the ICC. The ICC determined that RTC Transportation had engaged in an unreasonable practice, which the ICC then considered a defense to an undercharge claim. The district court rejected the ICC's determination and applied the "filed rate doctrine." It found that Conagra had not presented a valid defense to the filed rate doctrine and granted summary judgment for RTC Transportation.
We review de novo the district court's grant of summary judgment. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).
Conagra argues that the district court should have found a genuine issue whether RTC Transportation was a contract carrier, because RTC Transportation was a duly licensed contract carrier and it consistently provided service to Conagra at rates other than those on file with the ICC. In deciding Conagra's petition, the ICC found:
In contending that the operations at issue were contract carriage, petitioner merely refers to RTC's contract carrier authority. It does not indicate how the involved service meets either statutory definition of contract carriage in 49 U.S.C. 10102(14)(B) sic, or that it satisfied any of the requirements of the Commission's contract carriage regulations at 49 CFR 1053. The evidence here does not suggest that RTC served Conagra as other than a common carrier, and we thus will examine the evidence under our Negotiated Rates policy.
Conagra Poultry Co., No. MC-C-30064, 1988 WL 225221, at * 3- * 4 (I.C.C. Aug. 1, 1988).
Because this is an appeal of a grant of summary judgment, we perform the same direct review of the ICC's decision as the district court. Tzung, 873 F.2d at 1339-40. We accord substantial deference to statutory interpretations by an agency charged with administering a statute. Utility Reform Project v. Bonneville Power Admin., 869 F.2d 437, 442 (9th Cir. 1989). We uphold agency findings of fact that are supported by substantial evidence. NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir. 1989).
A motor common carrier is "a person holding itself out to the general public to provide motor vehicle transportation for compensation over regular or irregular routes, or both." 49 U.S.C. § 10102(14). A motor contract carrier, by contrast, assigns carriage vehicles "for a continuing period of time for the exclusive use of" the shipper. Id. § 10102(15)(B)(i). Among other factual deficiencies, Conagra nowhere asserts any evidence of such an exclusive use contract. We find no genuine issue whether RTC Transportation was a contract carrier and affirm this aspect of the district court's grant of summary judgment.
We also affirm the aspect of the district court's judgment precluding Conagra from interposing as a defense to RTC Transportation's undercharge claim the ICC's finding that RTC Transportation engaged in unreasonable trade practices. Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 110 S. Ct. 2759, 2766-71, 111 L. Ed. 2d 94 (1990).
Conagra argues that it should have a second opportunity to argue before the ICC the issue of the reasonableness of RTC Transportation's filed rates. This argument presents two major questions: first, may a shipper interpose rate unreasonableness as a defense to an undercharge claim; and second, did Conagra preserve its rate unreasonableness argument? We recently considered "whether a shipper may raise unreasonableness of the rates as a defense in a filed rate action and thereby cause the proceedings to be stayed until the ICC resolves the claim." Milne Truck Lines v. Makita U.S.A., Inc., 970 F.2d 564 (9th Cir. ...