W. J. Digby, Inc., of Iowa v. United States

Full title: W. J. Digby, Inc., of Iowa v. United States

Court: United States District Court, S.D. Iowa, Western Division.

Date published: Sep 8, 1965

246 F. Supp. 335 (S.D. Iowa 1965)

Opinion

246 F.Supp. 335 (S.D.Iowa 1965) W. J. DIGBY, INC., OF IOWA, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants. Civ. No. 3-661-W. United States District Court, S.D. Iowa, Western Division. Sept. 8, 1965

        Rehearing Denied Oct. 4, 1965.

        Donald E. Leonard and Charles J. Kimball, Lincoln, Neb., for plaintiff.

        Clarence W. Vandergrift, Washington, D.C., and Philip T. Riley, U.S. Atty., Des Moines, Iowa, for the United States and Interstate Commerce Commission.

        Alvin J. Meiklejohn, Jr., Denver, Colo., and Maynard S. Telpner, Council Bluffs, Iowa, for intervenor, Ringby Truck Lines, Inc.

        Donald L. Stern, Omaha, Neb., and Maynard S. Telpner, Council Bluffs, Iowa, for intervenor Midwest Coast Transport, Inc.

        Maynard S. Telpner, Council Bluffs, Iowa, for intervenor Midwest Emery Freight System, Inc., and Little Audrey's Transp. Co., Inc.

        Before VAN OOSTERHOUT, Circuit Judge, and STEPHENSON and HANSON, District Judges.

        PER CURIAM.

        Plaintiff brought this action to set aside the order of the Interstate Commerce Commission (the Commission) in Investigation and Suspension Docket No. 19729, dated June 28, 1965, suspending certain tariff schedules filed by plaintiff. Shortly after the complaint was filed upon motion of the plaintiff a temporary restraining order was entered enjoining the Commission from enforcing the suspension order. Thereafter the Commission filed a motion to dismiss the complaint and to vacate the temporary restraining order. Certain interested parties were allowed to intervene as defendants. They join in the motion to dismiss and to vacate the temporary restraining order.

        The record indicates that the Commission's Board of Suspension ¹ suspended the tariffs filed by plaintiff. Plaintiff failed to petition for reconsideration as provided by the Commission's Special Rules of Practice, § 1.200(b). ² This was essential before review could be sought in this Court. 49 U.S.C. § 17(9). Plaintiff, having failed to exhaust its administrative remedies, cannot now secure relief in this Court.

1 The 'Board of Suspension' is an employee board which is under the supervision of Division 2 of the Commission.

2 Petition for reconsideration may be filed within twenty days after the date of the service of the order.

        ORDER

        It is ordered that plaintiff's complaint is hereby dismissed at plaintiff's costs.

        It is further ordered that the temporary restraining order heretofore entered is hereby vacated.