Interstate Commerce Commission v. Transcon Lines, a Corporation Leonard L. Gumport, Chapter 7 Trustee

ORDER

The opinion as amended December 10, 1992 is hereby further amended by striking the amendment made December 10, 1992 and restoring the opinion, as follows:

In Slip op., p. 14392, paragraph 15 is hereby deleted and replaced by the following:

[Editor’s Note: Amendment has been incorporated within published opinion.]

With this amendment, the panel as constituted in the above case has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied, and the suggestion for a rehearing en banc is rejected.

The parties are reminded of Circuit Rule 4.6.b. Inasmuch as the opinion has been restored to its October 23, 1992 form the court deems it highly improbable that the amendment affected by this order offers any ground for a petition for rehearing or rehearing en banc.

This court’s order granting Appellant Interstate Commerce Commission’s motion to stay the mandate expired on January 7, 1993. The Motion filed on March 8,1993 of…

concurring:

I concur in the order denying the petitions for rehearing and rejecting the suggestions for rehearing en banc because I agree that the Trustee has no standing to challenge the lawfulness of its own rates. I write separately to address a related point — the Trustee’s attempt to establish standing by casting its challenge as one to the legality, rather than the lawfulness, of Transcon’s rates. The Trustee contends that Transcon’s coded tariff was not duly filed because neither the Commission nor the public could determine from the four corners of the tariff the identity of the shipper receiving each coded discount. As a result, the Trustee would have us strike the discount tariff and enforce as the filed rate the undiscounted bureau tariff, which was part of Transcon’s filing and which suffers from no similar infirmity.

I confess to some misgivings about the legality of coded discounts and am pleased that the ICC has decided to address the issue. See Reconsideration of Special Tariff Authorities Authorizing the Publication of Customer Account Codes in Tariffs, I.C.C. Decision No. 40888 (Jan. 5, 1993). In this case, however, we cannot reach the question. For if coded…

990 F.2d 1503 INTERSTATE COMMERCE COMMISSION, Plaintiff-Appellant, v. TRANSCON LINES, a corporation; Leonard L. Gumport, Chapter 7 Trustee, Defendants-Appellees. No. 92-55036. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 1992. Decided June 17, 1992. As Amended on Denial of Rehearing and Rehearing En Banc April 5, 1993. Richard S. Berger, Tuttle & Taylor, Los Angeles, CA, for defendants-appellees. Henri F. Rush, Deputy Gen. Counsel, I.C.C., Office of Gen. Counsel, Washington, DC; Stephen L. Day, Regional Counsel, I.C.C., Seattle, WA, for plaintiff-appellant. Stanley O. Sher, Sher & Blackwell, Washington, DC, amicus Intern. Broth. of Teamsters. Joseph L. Steinfeld, Jr., Sims, Walker, & Steinfeld, and Kim D. Mann, Shawn, Mann & Niedermayer, Washington, DC, amicus Creditors Alliance to Preserve Freight Undercharge Assets. Mary Kay Reynolds, Kroll & Tract, Los Angeles, CA, for amicus Transp. Claims & Prevention Council, Inc., et al. Daniel J. Sweeney and John M. Cutler, Jr., McCarthy, Sweeney & Harkaway, for amici curiae Health and Personal Care Distribution Conference and Nat. Small Shipments Traffic Conference. Appeal from…