Aero Mayflower Transit Company, Inc., and Allied Van Lines, Inc. v. The Interstate Commerce Commission and the United States of America , 535 F.2d 997 ( 1976 )

TONE, Circuit Judge

(concurring in part, dissenting in part).

While I agree with the statement of the meaning of the statutory term “wilfulness” set forth in the majority opinion and with the disposition of the Allied case, I am unable to agree with the disposition of the Aero Mayflower case. In my opinion, the Commission could properly find certain violations by Aero Mayflower. I agree that reliance by Aero Mayflower upon Bureau of Enforcement Counsel Charuhas’ interpretation of the suspension order was justifiable. The ALJ’s rejection of the reliance argument was based, not on evidence that no such interpretation was given, of which there was none, but upon his own view that no attorney employed by the Bureau of Enforcement would ever utter such an interpretation. Yet ICC’s failure to call Charuhas to rebut the evidence or otherwise to dispute it and Aero Mayflower’s bulletins sent to its agents ante litem mo-tam stating that proviso (2) commodities could not be “loaded” during the suspension period strongly suggest the contrary. Moreover, an interpretation to the same effect as that allegedly given by Charuhas was admittedly given by the Assistant Director of the Bureau of Enforcement to Allied Van Lines officials, and confirmed by members of the Assistant Director’s staff, although that interpretation was later countermanded by the Director of the Bureau. It is fairly obvious that the interpretation Charuhas was said to have given represented a view held by some members of the Bureau. Accordingly, the ALJ’s rejection of the claim of reliance on Charuhas’ interpretation, which was not based on impressions of demeanor testimony but on a supposition which is plainly wrong, should not bind us.

The ALJ also found, however, that only 14 of the 22 alleged violations showed pickup dates prior to the commencement of the suspension period, with delivery dates falling within it. Thus, while I agree that the Commission has failed to prove an “intentional disregard” of, or “plain indifference” to, the order with respect to the fourteen shipments, eight are not covered by the reliance defense. Of these eight, according to the ALJ’s findings, four were picked up and placed in storage before the suspension period, and then loaded onto Aero Mayflower’s line-haul equipment and delivered within the period. The other four apparently were both picked up and delivered within the suspension period. All eight shipments could properly have been found to have been in violation of the suspension order. Because Aero Mayflower is guilty of only eight violations, rather than 22, remand to the Commission, for a reassessment of the penalty would be appropriate.

While I am not unsympathetic to the majority’s view that so small a proportion of violations out of a total of 3100 shipments is de minimis, we do not have the authority, in my opinion, to impose a de minimis standard on the Commission. Even a single violation among many transactions conducted in compliance with the law may be punished by the Commission, as United States v. Illinois Central R.R., 303 U.S. 239, 58 S.Ct. 533, 82 L.Ed. 773 (1939), illustrates. Imposing a second suspension on the carrier for these isolated violations of an order which the carrier’s management appears to have made a good-faith attempt to obey may seem pointless and petty, but I think the Commission has authority to do it.

Also, I am unable to agree with two propositions stated in the majority’s analysis of the Commission’s interpretation of the suspension order. The “reasonable dispatch” requirement is not, in my opinion, inconsistent with a prohibition against delivering out during the suspension period goods loaded before the period commenced. The regulations, 49 C.F.R. §§ 1056.1(a) and 1056.12, require only that the carrier deliver the goods shipped within the time agreed upon between the shipper and the carrier, who, knowing the terms of a suspension order, must avoid making commitments that cannot be met without violation of the order. In addition, I do not think that the Commission’s interpretation of the suspension order as forbidding delivering out during the period has the effect of lengthening the period, any more than a contrary interpretation would have the effect of shortening it. The question is merely what activities are forbidden during the period. The Commission’s ultimate interpretation of the suspension orders in the two cases was therefore, in my opinion, a permissible one.