GREYHOUND CORP. v. MT. HOOD STAGES, INC.
Legal provision: Clayton
Argument of John R. Reese
Chief Justice Warren E. Burger: We will hear arguments first this morning in Greyhound Corp. against Mt. Hood Stages
Mr. Reese, I think you may proceed whenever you are ready.
Mr. John R. Reese: Mr. Chief Justice and May I please the Court.
I am John Reese, counsel for the petitioners, the Greyhound Corp and Greyhound Lines, Inc.
This is a private anti-trust case brought by the respondent, Mt. Hood Stages against Greyhound.
The issue as to which the Court granted certiorari is whether the four-year statute of limitations in anti-trust cases was tolled by an Interstate Commerce Commission proceeding brought by Mt. Hood in which the government later intervened, with the result the damage period in this case was multiplied five-fold to 20 years instead of the normal four years.
The Court of Appeals held that the statute was tolled, upheld the $13 million-treble damage judgment against Greyhound.
Without tolling, the judgment would still be approximately $8 million.
Chief Justice Warren E. Burger: Give me that last figure again.
Mr. John R. Reese: Approximately $8 million.
The jury found that Mt. Hood knew or should have known of its claims in this case on a specific date in December 14, 1960.
Therefore, in order to recover damages for any period prior to that date, Mt. Hood was required to file its complaint within four years by December 14, 1964.
Mt. Hood did not file its complaint within that four-year period.
Instead, it waited an additional 3.5 years.
The complaint in this case was not filed until July 5, 1968.
On the face of it then, the statute of limitations barred recovery for all damages prior to July 5, 1964.
The Court of Appeals, however, allowed recovery all the way back to 1953.
It did that on the theory that the statute was tolled by two different methods which can then be added together.
First, it sustained the jury's finding that there was fraudulent concealment until December 14, 1960. Then, it held that the claims were saved from being barred on December 14, 1964 because, on that very day, the government filed a petition asking leave to intervene in an interstate commerce commission proceeding that Mt. Hood had brought.
The Court held that the filing of that petition on that very last day before the claims were barred satisfied the requirements for tolling under Section 16(i) of the Clayton Act.
Section 16(i) is obviously at the heart of the issue before the Court.
It is a carefully drawn statute and it provides that whenever the United States institutes a proceeding to prevent, restrain, or punish violations of the anti-trust laws then the statute of limitations is tolled as to any matter complained of in a prior government proceeding.
Now, it is important to remember that while Section 16(i) is a tolling provision, it is and is part of a statute of repose that is designed to cut off stale claims.
The panel of the Ninth Circuit that decided this case failed to recognize that purpose.
As a result, its application of the statute does violence to the language and frustrates its purpose as a statute of repose.
Chief Justice Warren E. Burger: What do you say was the purpose of the government's intervention in this case, Mr. Reese?
Mr. John R. Reese: The purpose of the government's intervention in this case, Mr. Chief Justice, was to assure that the Interstate Commerce Commission took into account competitive policies as it is required to do under Section 5 of the Interstate Commerce Act.
Chief Justice Warren E. Burger: Just to pursue that, what would be the consequences of its participation?
Would there be any consequences that would either punish violations or restrain violations or prevent violations?
Mr. John R. Reese: No, Your Honor, there would not be and as we understand the law, as announced by this Court in McLean Trucking Minneapolis and St. Louis Railway, that could not follow.
Chief Justice Warren E. Burger: Then what was the real impact of their being there?
Is it to help the Commission understand the case a little better?
Mr. John R. Reese: Well, that is pretty accurate, I think, Mr. Chief Justice. One of the duties of the Anti-Trust Division of the Justice Department is to participate before administrative agencies that are required to take into consideration competitive policies in their regulatory decision making.
Chief Justice Warren E. Burger: Do you say an intervention by the United States could never toll the statute?
Mr. John R. Reese: Mr. Chief Justice, we do not want to take such an extreme position as to say it could never toll the statute.
We do maintain that it could never toll the statute in a Section 5 proceeding under the Interstate Commerce Act.
That is a Section under which the ICC not only does not enforce the anti-trust laws, but indeed, it authorizes and immunizes conduct that would otherwise violate the anti-trust laws.
I cannot see how a proceeding under that Section can fairly be read to be one to prevent, restrain, or punish violations of the anti-trust laws within the meaning of Section 16(i).
Chief Justice Warren E. Burger: Of course, the Department of Justice Anti-Trust Division itself does not punish or restrain, does it?
It can only persuade a court to do so is it not the essence of it or other tribunal?
Mr. John R. Reese: That is absolutely correct, Mr. Chief Justice.
What I am saying is that it cannot even persuade the ICC to do so under Section 5 of the Interstate Commerce Act because that is not the function of the ICC under that Section.
Indeed, as I understand McLean Trucking, the ICC is without power to do that under Section 5 and it certainly is not the purpose of Section 5 to prevent, restrain, or punish violations of the anti-trust laws.
The Court of Appeals' decision finding that the statute was tolled by reason of Section 16(i) is both bad statutory interpretation and bad policy.
It is bad statutory interpretation because the terms and requirements of Section 16(i) are clear.
The government's petition for leave to intervene does not satisfy those terms and requirements.
That petition is simply not an anti-trust complaint.
It is not the kind of document that should be required to bring Section 16(i) to play.
The government's petition actually goes out of its way to remain neutral and non-committal and to avoid making any charges.
In fact, that petition specifically denied knowledge of the facts and it did not ask for any relief.
The petition said "we have no way of knowing whether those of Mt. Hood's charges which Greyhound denies are true or false."
In other words, that petition could hardly have been more innocuous.
It does not begin to satisfy the language or the purpose of Section 16(i).
To put its deficiencies in terms of the statutory language, the petition did not institute a civil or criminal proceeding as Section 16(i) requires.
The Court of Appeals apparently admits that this proceeding was not instituted by the government.
Justice Mr. Justice Stewart:: Did the government or the Anti-Trust Division have an absolute right of intervention in the ICC proceedings?
Mr. John R. Reese: No, it did not, Mr. Justice Stewart.
It petitioned for leave to intervene from the ICC, under the ICC's regulations and it was granted the leave some several months after the petition was filed.
Justice Mr. Justice Stewart:: Did its petition recite the purpose of its intervention or of its motion for leave to intervene?
Mr. John R. Reese: The petition recited that only the United States was an interested party in the proceeding.
It declined to say on whose side the United States sought leave to intervene.
Justice Mr. Justice Stewart:: Is there any need in the light of the broader enforcement procedures of the anti-trust laws for the Anti-Trust Division to intervene in these administrative proceedings as a predicate to later bringing suit under the anti-trust laws?
Is there any concept of exhaustion of administrative remedies or anything that can do that?
Mr. John R. Reese: None, Mr. Justice Stewart.
A direct anti-trust case could have been brought.
Justice Mr. Justice Stewart:: Anytime, with or without any motion for leave to intervene in these ICC proceedings?
Mr. John R. Reese: That is correct.
The second deficiency of the petition in terms of the statutory language of Section 16(i) is that the petition did not complain of anything, as the statute clearly requires.
The Court of Appeals does not discuss this point.
Third, the government's petition did not seek to prevent, restrain, or punish violations of any of the anti-trust laws as Section 16(i) requires.
On this point, the best the Court of Appeals can say for us is that the petition showed that the government's interest lay in the possibility of anti-trust violations should Mt. Hood's allegations prove correct, purely hypothetical.
It is plainly insufficient to satisfy the requirements of Section 16(i).
Now, it is important to remember also what kind of proceeding it was, touched on this and answer to the Chief Justice's question a moment ago, but it was an ICC proceeding brought by Mt. Hood under Section 5 to reopen some old acquisition cases for the purpose of obtaining a supplemental order in those cases.
It was not an anti-trust proceeding when Mr. Hood brought it.
No one has suggested that it would have satisfied the requirements of Section 16(i) at that time.
The government's petition for leave to intervene only as interested party without requesting relief and without making any charges could not have changed the fundamental regulatory nature of that proceeding into an anti-trust case that satisfies the statute.
Indeed, the Justice Department itself specifically distinguishes that kind of activity from its normal anti-trust enforcement activity.
I have been focusing on the petition for leave to intervene.
There are three basic reasons for that.
First, even Mt. Hood agrees that Section 16(i) applies only to the extent that the private case is based upon a matter complained of in the prior government proceeding and this court, in Leh against General Petroleum, said that in general what the government complained of must be determined from the face of its complaint.
Here, although the petition for leave to intervene did not complain of anything, that is the only document that is even remotely analogous to a complaint.
Second, since that petition was filed on the very last day before the statute ran on the claims, anything that the government did after that date would be too late to save the claims anyway.
If the test should be to look beyond the face of the government's first pleading, then tolling should commence only when the government first does something that could fairly be called a complaint that institutes a proceeding.
Chief Justice Warren E. Burger: Does the judgment which you are challenging now depend in any parts, in whole or in part, using the language of the statute now on any matter complained of in the said proceeding, that is, in the ICC proceeding in which the government intervened?
Mr. John R. Reese: The judgment we are currently attacking is not based upon any matter complained of by the government in the ICC proceeding.
Chief Justice Warren E. Burger: Not complained of by the government, complained of by Mt. Hood, that is my question.
Mr. John R. Reese: The charges in the Interstate Commerce Commission proceeding as to acts and practices are very similar to the charges of acts and practices, or at least some of them, in the anti-trust case.
Chief Justice Warren E. Burger: Well, then why does this case not within that language which I believe is your brief?
It is at top page 7 and italicized in Section 16(i), on top of Page 7 reading, "the running of the statute of limitations in respect of every private or state right arising under said laws and based in whole or in part on any matter complained of in the said proceeding."
Now, if you say that the anti-trust judgment ultimately depends and rests in part on what Mt. Hood was complaining of, then why does the statute not apply?
Mr. John R. Reese: There are similar basis for the charges in the anti-trust case and in the ICC proceeding.
The ICC proceeding, however, was never one by the United States to prevent, restrain, or punish violations of the anti-trust laws.
Without that predicate, based upon language that the Chief Justice had just read, it seems to us to be inapplicable.
Chief Justice Warren E. Burger: In other words, it must be the United States that is making the anti-trust complaint in your view?
Mr. John R. Reese: Yes, it is.
Chief Justice Warren E. Burger: Not the injured party.
Justice William H. Rehnquist: That certainly was Congress' view too, do you not think, in enacting 1969?
Mr. John R. Reese: I think, certainly, the statute contemplates that the action upon which the private plaintiff awaits to take advantage of is a government action in which the government makes a complaint against an alleged anti-trust violator.
You are absolutely right, Mr. Justice Rehnquist.
Justice William H. Rehnquist: Is the reason for that not that the superior resources at the disposal of the government may unravel a lot of things that private plaintiffs by themselves could not unravel, and therefore, it is reasonable to let private plaintiffs ride on a tail of an action that was brought by the government?
Mr. John R. Reese: That is the way we understand the purpose to have been conceived by Congress in 1914.
Chief Justice Warren E. Burger: Why do you think it makes any difference whether the private litigant rides on the government or whether the government rides on the private litigant's proceeding?
Mr. John R. Reese: It seems to me, Mr. Chief Justice, that that is what the statute says and that is what the statute was designed to accomplish.
Justice Byron R. White: But you also say, I take it, in your brief that even if the intervention could be thought of as an instituting the case, the government did not complain of anything in that suit?
Mr. John R. Reese: That is right, Mr. Justice White.
Its petition specifically denied knowledge of the charges that Mt. Hood itself had made.
Justice Byron R. White: So it did not complain of anything in that suit that the petitioner in that suit may have complained of?
Mr. John R. Reese: That is right.
Justice Byron R. White: Why did it intervene?
Mr. John R. Reese: I believe, in answer to the Chief Justice's question earlier, I indicated that it does have a duty under its mission to participate before administrative agencies, which agencies are required by law to take into account policies of competition.
I believe that is why it intervened.
Chief Justice Warren E. Burger: Was it just an interested spectator and if so, could not the government do this from the bleachers without joining in the action?
Mr. John R. Reese: Your Honor, the record really does not show much about what the government did.
The only indications that we have that I can find are that the government sat there during the proceeding, cross-examined some witnesses, but did not put on any evidence of its own during that proceeding.
Chief Justice Warren E. Burger: Well, that could be because they thought that the private party was doing well enough without them.
Mr. John R. Reese: That may be.
We just do not know.
We do know that when it filed its petition, it refused or at least declined to endorse the charges that the private party had made.
Chief Justice Warren E. Burger: But your focus, I take it, is that the government as such did not institute any proceeding either to prevent, to restrain, or to punish.
Mr. John R. Reese: That is right.
Justice Harry A. Blackmun: Is it on that basis that you distinguish the Minnesota Mining case?
Mr. John R. Reese: The Minnesota Mining case, I believe, is related to a point that is almost not involved in this case.
I understood the issue there was principally whether a Federal Trade Commission proceeding could satisfy the terms of Section 16(i).
It was, however, a proceeding brought by the FTC to prevent, restrain, or punish violations of Section 7 of the Clayton Act.
That requirement, therefore, clearly satisfied the Minnesota Mining case as it is not in this one.
Justice Harry A. Blackmun: Well, that is the point of my inquiry, that it was government instituted.
Mr. John R. Reese: I was a little slow on the uptake there, Mr. Justice Blackmun.
Now, I have been focusing on the government's petition as I said and there is another reason still.
The only alternative to that is to review the entire administrative proceeding to try to determine whether the government eventually did complain of anything.
We submit that that imposes a heavy burden on the parties and the courts.
It is an inherently uncertain process.
If the government's position is not clear enough at the outset of the proceeding to enable it to state it in a proper complaint, parties will have no notice that their conduct is being complained of.
If the government is unable to state a complaint at the outset, how is a party to know from the way it conducts itself later during the course of the proceeding, whether it is complaining of something?
Indeed, if the government is that uncertain at the outset, it is likely to change its position during the course of the proceeding.
What would one do in that case?
Does tolling depend on the position the government ends up taking or does the statute start and stop with each change in the government's views?
The result of that approach in general would be that the parties would not know where they stood on the anti-trust statute of limitations.
But, in any event, the result of that approach in this case is that Mt. Hood's claims would still be barred.
Now, the decision below is bad policy for another reason as well.
It would take a very specific and limited tolling provision, an exception to the statute of limitations and broaden it to the point where there would be practically no statute of limitations in regulated industries.
One can hardly pick up a trade valuation report without reading of some Justice Department intervention or participation before one or another of the administrative agencies and that participation cannot fairly be distinguished from the government's neutral petition to intervene in this case.
In other words, if the decision below is upheld, the anti-trust statute of limitations may well be found tolled by literally countless administrative proceedings that no one ever intended to prevent, restrain, or punish violations of the anti-trust laws.
I would say a word about Mt. Hood's alternative theory.
Mt. Hood argues in the alternative that the statute should be tolled to prevent injustice because it, itself brought the ICC proceeding.
We submit that that makes even less sense than the 16(i) tolling theory.
In all of the good reasons for not suspending the statute under Section 16(i) are even better reasons for not suspending it by a theory of equitable tolling, first, it would be contrary to the policy of repose that Congress has sought to effect.
Second, it would create even greater uncertainty and unpredictability as to the circumstances and the period of tolling, but more fundamentally, equitable tolling simply does not fit the facts of this case.
In the first place, equitable tolling ought to depend on the plaintiffs having been diligent, but Mt. Hood was not diligent in this case.
It knew of its claims in 1960.
It did nothing at all about them until 1964 when it brought its ICC proceeding and it waited almost eight years before it finally filed the complaint in this case.
We submit that that is not diligence.
Mt. Hood's equitable tolling theory should fail for want of equity alone.
Contrary to the impression that Mt. Hood's brief seeks to leave, there is no forfeiture or threat of forfeiture in this case.
Even if Mt. Hood looses on the issues before the Court, the judgment that would be remaining in its favor would be nearly double the total amount of its actual loss, as determined by the jury, for the entire period from 1953 to 1973.
To recover double damages is not to suffer a forfeiture.
Mt. Hood is not at all like the plaintiff on the Burnet case, on which it relies, who stood to lose all remedy whatever for his injury of the statute had not been tolled.
We find no excuse for Mt. Hood's failure to wait eight years to file this case.
The Court's decision in Johnson against the Railway Express Agency ought to be dispositive on this point.
In any event, none of the excuses that Mt. Hood has offered has any merit.
It says that it delayed filing this case because it wanted to get an injunction, but it is hard to see how that could excuse the delay if Mt. Hood had really believed that it could not file this case sooner because it could not ask the Federal Court for injunctive relief, and it is even harder to understand why it asked the Federal Court for injunctive relief when it finally did file this complaint.
Now, the Doctrine of Primary Jurisdiction is no excuse either.
Although Mt. Hood would have us believe that its failure to act was in reliance or rather respect for that doctrine, the theory is plainly an afterthought, was not even raised in this case until after the trial when the case had been pending for more than five years.
I think the Court's decision in the Johnson case makes it clear that Mt. Hood's resort to an administrative agency cannot excuse its failure to take the minimal steps necessary to preserve each claim independently.
In conclusion, Mt. Hood delayed filing the case for nearly twice as long as the statute of limitation permits.
It still stands to recover far more than it lost even if it cannot persuade this Court to extend the statute of limitations.
There is no reason why Mt. Hood should not be held to the statutory period that Congress has prescribed for anti-trust plaintiffs.
Petitioner submits that the judgment of the Court of Appeals should be reversed.
Chief Justice Warren E. Burger: Thank you, Mr. Reese.
Argument of Eugene C. Crew
Mr. Eugene C. Crew: Mr. Chief Justice and May I please the Court.
Greyhound claims that the question before this Court is whether Mt. Hood should be allowed to expand the statutory period five-fold from 4-20 years.
I submit that is not the question.
The question is whether the statute should be tolled for the brief 3.5-year period, December 1960 to July 1964, by reason of the ICC proceedings so as to allow Mt. Hood to recover damages proven for those years that Greyhound was found to have violated the anti-trust laws and to have fraudulently concealed those violations from Mt. Hood.
The lower courts held the statute was tolled under Section 16(i) and we ask this Court to affirm on that ground and on the additional ground that this Court's equitable Doctrine of Tolling applies.
Both statutory and equitable tolling on the facts presented here will promote various important federal policies which may be collectively described as the orderly procedure developed by Congress and this Court for the private enforcement of the anti-trust laws against defendants regulated by the Interstate Commerce Commission.
Chief Justice Warren E. Burger: Where do you say that the intervention of the United States fits into the language of the statute as a proceeding instituted by the United States to prevent, restrain, or punish?
What did the United States do in that proceeding?
What did it assert in its intervention or what did it do after the intervention to prevent, restrain, or punish?
Mr. Eugene C. Crew: Mr. Chief Justice, the government and I would point out that it was the Anti-Trust Division of the Justice Department, not another division such as the Tax Division or the Civil Rights Division, but it was the Anti-Trust Division of the Justice Department that petitioned for leave to intervene in December 1964.
I submit that it is the intervention of the government at that time which constitutes the institution of a civil action within the preview of 16(i).
I would point out, we must begin with a language of the statute and that is true, but I submit that when they did intervene on that day, the Justice Department instituted a civil action on behalf of the United States as only the Justice Department could do.
Justice Thurgood Marshall: What relief did they ask for?
Mr. Eugene C. Crew: Mr. Justice Marshall.
Unknown Speaker: Or should I say what if any?
Mr. Eugene C. Crew: Thank you.
Mr. Justice Marshall, the relief sought by the Justice Department, and I believe this is a fair reading of the petition on its face alone and I submit that they referred expressly and I will not take up the Court's time by reading the petition to the Court, but I think a fair reading of that petition demonstrates that it was relying upon not only the sworn allegations of Mt. Hood on its verified petition, but also other evidence and on the basis of that, was telling the Interstate Commerce Commission that it had cause to suspect that an anti-trust violation might have occurred and if the facts prove so at a hearing, that relief should be granted to prevent further violations.
It is a fair reading, I submit, Mr. Justice Marshall.
Justice Thurgood Marshall: What relief?
Mr. Eugene C. Crew: The relief that I believe they were seeking?
Justice Thurgood Marshall: No, what relief were they seeking?
We are talking about a document now.
Mr. Eugene C. Crew: Yes, sir.
Justice Thurgood Marshall: When you get to the point in wherefore or something.
Mr. Eugene C. Crew: Right.
Justice Thurgood Marshall: Do you know what I am talking about?
Mr. Eugene C. Crew: Yes, Your Honor.
Justice Thurgood Marshall: Which was not in this.
It was not even in here.
Mr. Eugene C. Crew: Mr. Justice, it is true that the word 'relief' probably does not appear in the petition, but what I think is clear from a fair reading of the document is that they were seeking relief.
I would point out --
Justice Thurgood Marshall: And the relief they were seeking was the tolling of the statutes?
Mr. Eugene C. Crew: Pardon, Your Honor?
Justice Thurgood Marshall: They toll the statutes.
Mr. Eugene C. Crew: Your Honor, they did toll.
We do submit that it did.
Justice Thurgood Marshall: That is the relief they were asking.
Mr. Eugene C. Crew: No, not the Justice Department, Your Honor, but that is the relief we do seek here.
I am sorry, Mr. Justice.
Justice Mr. Justice Stewart:: Just to follow up on my brother Marshall's question, first of all, apparently you acknowledge that there was no prayer for relief in the government's original petition for leave?
Mr. Eugene C. Crew: Mr. Justice Stewart, I cannot say that.
I believe that it does seek relief and I would point out to Your Honor that, for example and this would be in the Joint Appendix at Page 39, the government stated "if anything, the need for sharp surveillance of any abuse of the power of these acquisitions have given Greyhound and for a prompt action to correct any such abuse has become more important as Greyhound's (Inaudible) Mt. Hood has become more complete with each successive acquisition.
On the last page of the petition, at page 41 of the Appendix, again, the Justice Department points out that the anti-trust laws are very much involved and that while the approvals might be except, predatory conduct made possible by those acquisitions would not be, as they state in the last paragraph, "for if it then appears that the Commission lacks jurisdiction to dispose of Mt. Hood's compliant in whole or in part, Mt. Hood remitted to another forum may find relief elsewhere loosely if it comes too late to be effective."
Now, it may not be the orthodox prayer that we see in the typical complaint where it is at the bottom of the page, but I submit that these document, within the four corners, prays for relief.
Justice Mr. Justice Stewart:: What relief could the Interstate Commerce Commission could have given in this proceeding?
What anti-trust relief?
Mr. Eugene C. Crew: The Anti-trust relief, Mr. Stewart, that the Interstate Commerce Commission could give was the relief it gave and that was to enter a seize-and-decease order which attempted to prevent Greyhound from continuing its predatory behavior to destroy Mt. Hood's business and I submit, Your Honor, that that is exactly the relief that was given and it was the relief that was sought and it was granted in substantial part because the Justice Department intervened and sought it on behalf of Mt. Hood.
Justice Mr. Justice Stewart:: Does the Interstate Commerce Commission have as such the power or the function of enforcing the anti-trust laws and giving anti-trust relief as such or is it confined to simply considering the anti-trust laws and in administering the Interstate Commerce Act?
Mr. Eugene C. Crew: Mr. Justice Stewart, I believe that it has the power and the duty to enforce the anti-trust laws and to prevent the --
Justice Mr. Justice Stewart:: It cannot award treble damages.
Mr. Eugene C. Crew: No, of course, it cannot, Mr. Stewart, but it certainly can do everything else.
Justice Mr. Justice Stewart:: Can it enjoin action as in violation of the anti-trust laws without any reference at all to the Interstate Commerce Act?
Mr. Eugene C. Crew: Without reference to the Interstate Commerce Act?
Justice Mr. Justice Stewart:: Without reference to its duties under the Interstate Commerce Act, it is a creature of the Interstate Commerce Act?
Mr. Eugene C. Crew: That is right, Mr. Justice Stewart.
Justice Mr. Justice Stewart:: And its basic function is to enforce that statute.
Mr. Eugene C. Crew: That is correct, Mr. Justice Stewart and I would say that the authority of the Interstate Commerce Commission to enforce the anti-trust laws is statutory and I would refer primarily to Section 5 of the Interstate Commerce Act, to Section 15 USC 21 of the US Code, and I would refer to the National Transportation Policy which prohibits --
Chief Justice Warren E. Burger: Do you mean they would refuse to approve the acquisition?
Mr. Eugene C. Crew: I believe so.
Chief Justice Warren E. Burger: That would fall under the language of the statute that prevents.
Mr. Eugene C. Crew: That is true, Mr. Chief Justice.
I believe that this was a Section 5 proceeding.
Now, if the Justice Department had intervened at that time and asked that the acquisitions be disapproved because they violated anti-trust concepts and the Interstate Commerce Commission disapproved the acquisitions, then I would submit that the Interstate Commerce Commission was enforcing the anti-trust laws by preventing a violation at that time.
Justice William H. Rehnquist: Mr. Crew, you say you find somewhat implied in the government's pleading in this case a prayer for relief.
Mr. Eugene C. Crew: Yes, Mr. Justice.
Justice William H. Rehnquist: Do you think that implied prayer sought relief over and above that which Mt. Hood sought?
Mr. Eugene C. Crew: In terms of the conduct that the Justice Department wanted to prevent, they were co-extensive.
In terms of the legal standards to be applied, I believe that the Justice Department's intervention brought the anti-trust laws to bear, but I would have to say that they are co-extensive there too, because the Interstate Commerce Commission has a duty to enforce the anti-trust laws whether the Justice Department intervened or not.
So I submit that although Mt. Hood's petition did not expressly refer to the anti-trust laws, that the relief that Mt. Hood was seeking was a prevention of destructive competition in violation of those laws.
Justice William H. Rehnquist: And the government sought no more in its prayer and intervention, is what you --
Mr. Eugene C. Crew: I believe I would say that is correct, that they both sought the prevention of predatory conduct and violation of the anti-trust laws and the Interstate Commerce Act, Mr. Justice Rehnquist.
Justice Byron R. White: Do you not think a kind of a suit that the tolling provision is talking about at least requires the United States to make some assertions as to the fact?
Mr. Eugene C. Crew: Mr. Justice White, I believe that the statute requires reasonable notice to the party against the statute.
Justice Byron R. White: I know, but the United States in its petition said that it had no idea whether Mt. Hood's allegations were true or false and it took no position on whether they were true or false?
Mr. Eugene C. Crew: Mr. Justice White, firstly, I believe that a position does have to be taken, but I would add, if you will permit, by stating that the Justice Department clearly did take a position and its position was to align with Mt. Hood and against Greyhound from the very outset.
I believe that it was stating that --
Justice Byron R. White: Where did it ever make itself take any position with respect to the facts?
Mr. Eugene C. Crew: Mr. Justice White, I would start with the petition itself.
Justice Byron R. White: I know, but it says "we had no way of knowing whether those of Mt. Hood's allegations, which Greyhound denies, are true or false."
Mr. Eugene C. Crew: Mr. Justice White, it is correct that the Justice Department stated that, but I do not see really any difference between that and any complaint that is filed in a Federal Court.
The government was referring to the sworn allegations of Mt. Hood and stated "while we have no way of knowing the facts, we have cause to suspect."
Justice Byron R. White: The government itself then was not undertaking to prove these facts.
It was not its own lawsuit.
Mr. Eugene C. Crew: Not in the same respect that it may be in a complaint, but I do believe that it was.
Justice Byron R. White: Did it participate in hearing and call witnesses?
Mr. Eugene C. Crew: Yes it did, Mr. Justice White.
It did cross-examine witnesses.
Justice Byron R. White: I know, but did it call its own?
Mr. Eugene C. Crew: No, it did not, but it cross-examined the witnesses that were the parties to the case, that is, it examined Greyhound witnesses who were already there and crossed-examined them.
Justice Byron R. White: Did it submit suggested findings to the Hearing Officer?
Mr. Eugene C. Crew: Yes.
Mr. Justice White, I believe that it did and I would refer --
Justice Byron R. White: Do you believe or do you know?
Mr. Eugene C. Crew: I believe that I know, but I would refer to the Interstate Commerce Commission decision.
Justice Byron R. White: Would they not be in the record filed here if they did submit some suggestions?
Mr. Eugene C. Crew: Mr. Justice White, we do not have in the record below the briefs that were filed and frankly if I had thought of it, they would be in the record before this court now, but, what is in the record in so far as this Court's judicial notice is concerned is the published decision of the Interstate Commerce Commission in 104 MCC 449 and there, there are two or three references to relief sought by the Justice Department and complaints made by the Justice Department throughout these proceedings, including examination of witnesses, the filing of briefs.
Greyhound filed exceptions to the Interstate Commerce Commission order and the Justice Department along with Mt. Hood filed a reply to those exceptions.
So, it was stating a position to Greyhound that at that time and at one point in the --
Justice Byron R. White: Well, at some point in the proceeding you are saying that the United States took a solid position with respect to the facts of the record?
Mr. Eugene C. Crew: Yes, Mr. Justice White.
Justice Byron R. White: And as to what relief should be granted.
Mr. Eugene C. Crew: Yes, Mr. Justice White.
Justice Byron R. White: Whether their complaint intervention could be so characterized or not?
Mr. Eugene C. Crew: No, I think that that point that you had asked about is the filing of the petition.
I believe that they took a position then and the subsequent events during the proceedings substantiated and corroborated that that was their position from the outset.
But Mr. Justice White and Your Honors, I would say that when the Justice Department filed its petition I believe it was saying no more than what any complaint in a court action could in good faith say and that is, we do not have the facts yet, but we have cause to suspect and we need a hearing and if that hearing bears out those facts, then we want relief.
Justice Thurgood Marshall: Mr. Crew, do you know of any case where somebody came in and said "I want to be a party and the reason I want to be a party is I agree with the other party."
That is all.
Do you not have to show an independent basis to be a party?
Mr. Eugene C. Crew: Mr. Justice Marshall I believe that --
Justice Thurgood Marshall: Do you not have to ask for something and allege something?
Mr. Eugene C. Crew: I think that that is true, but I think that that is exactly what --
Justice Thurgood Marshall: Well, is it not this amicus brief "that is all"?
Mr. Eugene C. Crew: I would say not, Mr. Justice Marshall.
Justice Thurgood Marshall: All it says is, "I agree with what Mt. Hood might be able to prove."
They do not say "I agree with what they can do."
Mr. Eugene C. Crew: Mr. Justice Marshall, that is precisely what any plaintiff will say when he files an allegation on information or belief, is that this is what I believe I might be able to prove.
Justice Thurgood Marshall: They do not say it makes them believe in any place in here.
Mr. Eugene C. Crew: They do not use those magic words, Mr. Justice Marshall.
Justice Thurgood Marshall: They are not magic words, they are necessary words.
Mr. Eugene C. Crew: Mr. Justice Marshall, I believe that if it is required that those words be here --
Justice Thurgood Marshall: No, I think that they want to intervene as a party.
Mr. Eugene C. Crew: That is correct, Sir.
Justice Thurgood Marshall: In order to intervene as a party, I understood the general rule was you have to allege enough on your own to be a party and not to ride on somebody else's tales.
Mr. Eugene C. Crew: Mr. Justice Marshall, I believe that the law concerning intervention in our Federal Courts, for example, indicates that an intervener, once that leave is granted, becomes a party no less than a plaintiff than a defendant.
Justice Thurgood Marshall: After he says which side he is on.
Mr. Eugene C. Crew: That is correct.
Justice Thurgood Marshall: But they did not say it here.
They do not know what side they are on yet.
Mr. Eugene C. Crew: Your honor, I believe that it is quite clear that the Justice Department was aligned with Mt. Hood and against Greyhound and I would point out the sole purpose for the Justice Department's intervention.
Justice Thurgood Marshall: Now, I am getting to it, they were against Greyhound.
Mr. Eugene C. Crew: That is correct.
Justice Thurgood Marshall: They are not necessarily with Mt. Hood.
Mr. Eugene C. Crew: Your Honor, I would point out first that the Interstate Commerce Commission in this decision stated, and this was not mentioned in our brief so I would like to point it out here, at page 457 of the ICC Report, "the Department of Justice urges that petitioners, that is Mt. Hood, charges be sustained in full and that respondent Greyhound also be found to be in continuing violation of Section 216 referring to the Interstate Commerce Act."
It stresses respondent Greyhound's arrogant attitude, doubts that a one-year policing period is long enough and suggests five years or even indefinite surveillance.
Now, that certainly demonstrates that the Justice Department was not a mere neutral petitioner or an amicus.
It was coming in as a party, an intervener, but a party, to seek relief and it did join sides with Mt. Hood, but I do not believe that --
Justice Thurgood Marshall: Well, I more free to read the record and find out for myself?
Mr. Eugene C. Crew: Pardon, Mr. Justice?
Justice Thurgood Marshall: Am I free to read the record and find out for myself?
Mr. Eugene C. Crew: I believe that would be so.
Justice Thurgood Marshall: I have got news for you.
Mr. Eugene C. Crew: I am not submitting that, Mr. Justice.
What I am saying is that the decision of the ICC, together with the petition of the government indicate, beyond per adventure that the Justice Department intervened to prevent a violation of the anti-trust laws and was seeking relief to prevent a violation if the evidence at the hearing demonstrated the violation.
Justice Mr. Justice Stewart:: Is it true that the part you read does not refer to the anti-trust law?
Mr. Eugene C. Crew: The part I read does not refer to the anti-trust laws, but it does state that Mt. Hood's charges should be sustained in full.
Justice Mr. Justice Stewart:: They refer to Section 216, yes.
Mr. Eugene C. Crew: In addition, they refer to 216, but the Interstate Commerce Commission also referred expressly to the anti-trust laws, as to the Chicago Federal Court in affirming, and stated that the ICC was, in granting that relief, applying the anti-trust laws to Greyhound's conduct.
Justice William H. Rehnquist: Mr. Crew, going back for a moment to your response to my brother Marshall's question as to the status of an intervener once it gets in, turning to the Appendix at page 43 which is the ICC's order to allow intervention, the second paragraph of that order says that intervention is allowed, but the permission to intervene herein granted shall not be construed to allow interveners to introduce evidence which will unduly broaden the issues raised in this proceeding.
That is a somewhat limited intervention status that the ICC granted to the government, is it not?
Mr. Eugene C. Crew: Mr. Justice Rehnquist, you are correct that it did not allow any broadening of the issues, but I think that helps support the position that the issues concerning anti-trust laws were already present.
I believe that any time an intervener intervenes that they usually intervene on the basis of the issues drawn at that time and I believe that the anti-trust issues were already a part of the proceedings.
Justice William H. Rehnquist: Okay, but then take your position in this case which is that the statute is tolled while the government prosecutes its case against the wrongdoer under the anti-trust laws and here you are seeking to invoke that general rule on the basis of a proceeding which was begun by the private plaintiff who initiated the proceedings before the Commission and the government simply came in to say "we agree with the private plaintiff," is that not standing a thing on its head?
Mr. Eugene C. Crew: Mr. Justice Rehnquist, I do not believe it is.
Firstly, when Mt. Hood filed its petition, I submit that it was seeking to prevent a violation of the anti-trust laws because it was being destroyed by predatory conduct which violates those laws, no other law and the ICC has a duty to enforce those laws and the Justice Department intervened to ensure that the ICC enforces those laws.
Justice William H. Rehnquist: But if it thought it was being destroyed by anti-competitive conduct, violating the anti-trust laws when it brought this action before the ICC, was it not also under a duty if it intended to prosecute a damages action in the Federal Court to move within the time provided by the statute of limitations?
Mr. Eugene C. Crew: Are you referring to the duty of Mt. Hood to file an action?
Justice William H. Rehnquist: Yes.
Mr. Eugene C. Crew: To file a court action?
Justice William H. Rehnquist: Yes.
Mr. Eugene C. Crew: Your Honor, that really does get to the alternative ground for tolling.
I believe that if we are going to refer to Mt. Hood's position, I would like to address that question which is under equitable tolling, if I may.
If I do I would, in response to your question state that Mt. Hood should not have filed a court action at the time that it filed the Interstate Commerce Commission proceedings because to do so would have been a futile act and an idle act, and would be discouraged by the Doctrine of Primary Jurisdiction.
But firstly, Mt. Hood, in terms of injunctive relief had no forum to go to, save the Interstate Commerce Commission and it is the only place it could go and having gone there, I would submit and I would like to address, that if I may now in the time remaining, under equitable tolling.
Justice Mr. Justice Stewart:: What about damages however?
Mr. Eugene C. Crew: Pardon, Mr. Justice?
Justice Mr. Justice Stewart:: What about damages?
You were free to seek damages.
Mr. Eugene C. Crew: Yes, you are free to seek damages, but under the Doctrine of Equitable Tolling and the Doctrine of Primary Jurisdiction, I believe that Mt. Hood was effectively and legally precluded from prosecuting an action to recover damages until the Interstate Commerce Commission had first passed the --
Justice Mr. Justice Stewart:: But the United States of America could, at any time, have filed an anti-trust suit in the United States District Court?
Mr. Eugene C. Crew: Mr. Justice Stewart.
Justice Mr. Justice Stewart:: Which will be the paradigm example of the application of 69, right?
Mr. Eugene C. Crew: Yes. Mr. Justice Stewart, I believe that it would be even more compelling in that case because the Interstate Commerce Commission was already considering prospect of relief with respect to Mt. Hood's petition.
At that point in time, had the Justice Department filed a court action for a prospect of relief with respect to the same conduct, I think that a dismissal would have been inevitable under Fareast and Cue and Art and other cases.
Chief Justice Warren E. Burger: Is it not correct that sometimes the Anti-Trust Division simply sits back and waits for the facts to develop and then make some decision whether they will commence proceedings independently?
Mr. Eugene C. Crew: Well, that is the reverse of what I think the laws contemplate, but they sometimes do and I think that, in this case, had Mt. Hood filed as it did, the Justice Department had two choices, either sit back and wait until Mt. Hood resolved the issue in the agency or filed an agency proceeding or intervene in the agency proceeding, but among its alternatives, I submit, under the law of this country, was not to file a court action in the face of the ICC proceedings because I think it would have created a direct and immediate conflict between the two forums.
Chief Justice Warren E. Burger: So you do not agree with the implication of my question that the government was free at any time despite the pendency of these ICC proceedings to file an anti-trust action or in the event, if it filed one, you say it would have been deferred and delayed?
Mr. Eugene C. Crew: It would have been deferred and delayed and ineffectual because of the Doctrine of Primary Jurisdiction that would be invoked in that instance.
Chief Justice Warren E. Burger: Do you think this was the government's only alternative?
Mr. Eugene C. Crew: I believe that this was the government's only alternative, namely to go to the ICC.
I think it was literally driven there by the law.
I think that it had to go to the ICC whether it would be to file a complaint and then consolidate it with Mt. Hood's complaint or to file a petition to intervene and I think what it did was the most expeditious thing that it could.
Justice Thurgood Marshall: When you talk about expeditious, one day late and they would not have had any problem, would they not?
Mr. Eugene C. Crew: I think that is correct and we are saved by a day.
That is correct, Mr. Justice Marshall, under statutory tolling, but I would like, if I may, to address equitable tolling in the time left.
Your Honors, we submit that without statutory tolling and without Section 16(i) this Court has declared that a federal statute should be tolled if it would promote important federal policies without frustrating the statute of limitations policy repose.
We believe that in light of the tolling principle that is annunciated in the Burnet case, in American Pipe, and most recently in the Johnson case that tolling should at least apply if the following factors are present and we submit these factors were present here.
Firstly, that a plaintiff's prior resort to an agency having primary jurisdiction of the conduct alleged and a subsequent anti-trust complaint is necessary to the maintenance and prosecution of his anti-trust claim.
Secondly, that a plaintiff is required to obtain his injunctive remedy.
Justice John Paul Stevens: Mr. Crew, why is that necessary in this case?
Why could you not just have filed a suit in December without ever going into the ICC except you wanted a different kind of relief there?
Mr. Eugene C. Crew: Mr. Justice Stevens, the answer to that question I submit is the Doctrine of Primary Jurisdiction which is particularly applicable when an anti-trust exemption is available in this case and I --
Justice John Paul Stevens: The anti-trust exemption went to the acquisitions and your basis of your recover of damages assumes that the acquisitions were immune from the anti-trust laws, as I understand it?
Mr. Eugene C. Crew: Mr. Justice Stevens, that is correct, however, that did not prevent Greyhound from asserting that the anti-trust exemption applied and they asserted that right up to this Court.
Justice Mr. Justice Stewart:: But they made an improper assertion.
They are wrong on that, but you could, I believe, have filed suit in 1964 for damages for the preceding period if you wanted to do so?
Mr. Eugene C. Crew: In a technical sense that is correct, but I submit that by virtue of the law of primary jurisdiction, that case would have been dismissed in 1964.
Justice Mr. Justice Stewart:: Not if you had not also been prosecuting an ICC proceeding which you did not have to do.
I cannot understand why you did it.
I think it was good representation of your client, but you at least had the option.
If you wanted to, you could have said "let us take our damages for past action and file a supplemental complaint five years from now if they keep doing the same thing."
Mr. Eugene C. Crew: But Mt. Hood I submit, Your Honor, was legally powerless to file a damage action in 1964 by virtue of the Doctrine of Primary Jurisdiction.
It could have filed for damages and I submit that under the law of Fareast, Cue and Art, Carnation, Ricky, and other case of this Court that started from the turn of the century, that case would have been dismissed or at most, stayed.
Justice Byron R. White: I take it you cited in your brief the cases you think would require a dismissal rather than just a stay and a reference.
Why would the District Court not, if you filed a suit for damages, simply say "under primary jurisdiction you must first go over to the Commission and if you have a favorable judgment there, come back"?
Mr. Eugene C. Crew: That is a possibility.
Justice Byron R. White: Why then do you tell us that there would have to be a dismissal for damages action?
Mr. Eugene C. Crew: Mr. Justice White, I believe in answer to that question, we would have to assess what Mt. Hood did in 1964.
The question is whether or not Mt. Hood acted reasonably at that time and I believe that it should have done the same thing today, but what I am stressing here is that in 1964, the law of this country under primary jurisdiction indicated that his case would have been dismissed, not stayed and I would point out, Your Honors, the Carnation decision which was reversed by this Court in 1966 to substitute a stay for dismissal, but the Ninth Circuit, in 1964, had stated that such a case on similar facts to this case must be dismissed because the District Court lacked jurisdiction.
So I think that there was enough law.
Justice Byron R. White: Lack of jurisdiction of what?
Mr. Eugene C. Crew: Lack of jurisdiction to hear the anti-trust claim.
Justice Byron R. White: Was that a damages action?
Mr. Eugene C. Crew: Yes, the Carnation case was a damage action.
Yes, Your Honor.
But lack of jurisdiction to hear the anti-trust claim until the Interstate Commerce Commission had first resolved the immunity question and had a chance to pass upon the matter under this salutary Doctrine of Primary Jurisdiction.
In addition to the requirement of primary jurisdiction as an element, I was stating that the second factor which was present here too is that the plaintiff is required to obtain its injunctive remedy in one forum and his damage remedy in another forum and is legally precluded from seeking both remedies in the same forum.
Now, that was clearly the case here.
Thirdly, and this is one more factor which should be present and was present here, that despite this legal bifurcation of remedies between two forums, the plaintiff's claim is factually and legally identical so as to satisfy the requirement of notice stated in the Johnson case and thereby avoid the evils against which the statute of limitation is designed to protect.
With respect to that factor, I would point out that the claim here presented in both the ICC and the Court was factually the same and I submit that it was legally the same, and only the remedies were different and that is due to the bifurcation in the law confronting Mt. Hood.
Mt. Hood invoked the ICC's jurisdiction to apply the anti-trust laws to Greyhound's conduct for adjunctive relief purposes and then before the court, apply the anti-trust laws for purposes of damages.
Your Honors, the Johnson decision, which I think is an important decision, declared that the statute of limitations may be tolled if there is a federal body of procedural law which denotes interdependency between two proceedings and a positive preference that one be undertaken before the other.
I submit that federal policy is present here.
Justice Thurgood Marshall: Mr. Crew.
Mr. Eugene C. Crew: Yes, Your Honor?
Justice Thurgood Marshall: What did the government get out of the case?
Mr. Eugene C. Crew: The government is there today, Mr. Justice Marshall.
Justice Thurgood Marshall: I cannot find it.
I could not even find the in Court of Appeals heading.
Mr. Eugene C. Crew: Which, Your Honor?
Justice Thurgood Marshall: The heading in the Court of Appeals, the caption.
Mr. Eugene C. Crew: They are not in this case, but in the Interstate Commerce Commission proceedings the Justice Department has never gotten out.
Justice Thurgood Marshall: When did they get out of this case which is here now?
Mr. Eugene C. Crew: Actually, the Justice Department did intervene in this case at an early stage of the proceedings for discovery purposes and conducted discovery in this case to be used in the contempt proceedings that took place in Chicago.
With respect to the federal policy or federal body of procedural law which the Johnson case requires, I would point out that they are two.
First, I would like to consider the federal policy expressed in 15 USC 26, the injunction remedy under the anti-trust laws.
Despite the importance of this remedy and the obvious preference that a plaintiff tried to save his business first in mitigation of his damages, that remedy was not available to Mt. Hood in the courts.
When Mt. Hood was about to go under as a result of Greyhound's conduct in 1964, it went to the only forum that was available to it to save its business.
Chief Justice Warren E. Burger: Your time has expired, but we will extend it two minutes and we will give your colleague the same.
Mr. Eugene C. Crew: Thank you, Your Honor.
That was not a preference, as mentioned by Johnson, but it was a congressional mandate.
In that respect, Your Honors, Mt. Hood differed from the plaintiff in Johnson. Johnson plaintiff could have gotten full relief from the Federal Court if he wished, but he exercised his valuable option not to do so.
Mt. Hood had no such option here.
The Doctrine of Primary Jurisdiction also is a federal doctrine which directed plaintiff, Mt. Hood, to go to the ICC and it is particularly applicable here because of anti-trust exemptions claim.
Your honors, I would say this that the Doctrine of Primary Jurisdiction has always been invoked by defendants, never by plaintiffs, to protect defendants against premature lawsuits.
I believe that the Primary Jurisdiction Doctrine should now be completed and that the statute of limitation should be tolled for those plaintiffs who lack in accordance with it.
Judicial economy will be served just as notions of litigative efficiency were served by tolling the statute in American Pipe.
On the point of equities, counsel for Greyhound stated that we do not have a shred of equity, that Mt. Hood was not diligent, and that our damages should be reduced from treble to double damages to avoid a windfall.
First, Congress said treble damages, it did not say double damages.
Greyhound cannot use this as a rationalization to deny tolling.
Secondly, Greyhound's claim regarding the equities requires that the equities be balanced and compared.
Greyhound was found by the jury to have fraudulently concealed its conduct for 11 years, from 1953 to 1964.
With respect to Mt. Hood's behavior, Greyhound states, you were not diligent.
You should have filed your action in 1962 or 1963.
Chief Justice Warren E. Burger: Your time has expired now, Mr. Crew.
Mr. Eugene C. Crew: Your Honor, I would say that that is a false issue in that incidence because whether or not they were diligent then is irrelevant to the question of whether tolling occurred later.
Thank you, Your Honors.
Rebuttal of John R. Reese
Mr. John R. Reese: I only wanted to take up about two points.
There was some talk here during counsel's presentation about the United States being aligned with Mt. Hood in the ICC proceeding.
Counsel made the statement that the United States was driven to the ICC.
There is a bit of evidence that has not appeared in the briefs and I would like to call it to the Court's attention at this time.
In 1964 prior to the time that it filed its ICC proceeding, Mt. Hood's president, Mr. Kennan, went to the Department of Justice and asked them to take anti-trust enforcement action against Greyhound.
It is perfectly clear that the Department of Justice determined not to do that.
Unknown Speaker: That is in the record, I take it.
Mr. John R. Reese: That is in the record at transcript 3772-3774.
There is another bit of evidence in the record.
This is at clerk's transcript record 1006.
That is the reply that Greyhound filed to Mt. Hood's petition in the ICC and that notes that Mt. Hood had gone to the government, made some of its charges that the government had informed Greyhound that it found at least some of those charges to be without substantiation.
In other words, even prior to the time that Mt. Hood filed its ICC proceeding, it appeared that it had sought anti-trust enforcement relief from the government and that was not forthcoming.
The government certainly did subsequently intervene, but it is not at all clear that it was aligned with Mt. Hood and certainly not at the outset.
Chief Justice Warren E. Burger: Do you suggest this was Greyhound?
Mr. John R. Reese: No, Mr. Chief Justice, I cannot make that claim.
Unknown Speaker: Your colleague, of course, makes the point that there would have been little or no point for the government to file an anti-trust action in a Federal District Court during the pendency of this ICC proceeding because that action would simply have been delayed and the court would have deferred to the administrative agency until the completion of those administrative proceedings.
Mr. John R. Reese: I would like to say two things to that.
Unknown Speaker: Perhaps I misunderstood your colleague, but did you understand him to say that?
Mr. John R. Reese: I understood him to say that.
The point I am making now is the government was asked prior to the time there was any ICC proceeding to bring an anti-trust case, and it did not do it and that is 3772-3774 of the transcript.
Chief Justice Warren E. Burger: Do you think that undermines the possibility of their intervention being construed as the institution of a proceeding?
Mr. John R. Reese: Yes, and I think it also highlights the distinction between a normal anti-trust enforcement case and this neutral petition for leave to intervene before the ICC.
Chief Justice Warren E. Burger: They could have done at that time.
What would you say the government could have done at that time to prevent or restrain an anti-trust violation?
Mr. John R. Reese: They could have filed a civil action for injunctive relief.
Chief Justice Warren E. Burger: What would the court have done with that while the ICC procedure was pending?
Mr. John R. Reese: I am not in position to say, Your Honor.
Chief Justice Warren E. Burger: No, the fact of the matter you know they would not have proceeded, do you not?
Mr. John R. Reese: Your Honor, I find the decision is on primary jurisdiction to be less than clear.
For example, one would have thought that in the Otter Tail cases, Mr. Chief Justice, a reference to the agency might have occurred.
I do not think the answer can be predicted with any clarity.
I think that the position of relying upon primary jurisdiction from the position of hindsight in order to determine whether tolling has occurred is a very hazardous process.
Unknown Speaker: But at least, in any event, if the government had filed a suit at least it would have then been taking a position in making a claim.
Mr. John R. Reese: Yes.
Unknown Speaker: I take it you do not say that the United States did not take a position before the ICC proceedings were over?
Mr. John R. Reese: Before they were over, the United States took a position.
Unknown Speaker: If they had done, at the time of their intervention, a complaint what they later did a proceeding, what would you have said then?
Mr. John R. Reese: It would still be an action to enforce not the anti-trust laws, but rather Section 5 of the Interstate Commerce Act.
Unknown Speaker: It would not be a civil action to enforce the anti-trust law?
Mr. John R. Reese: No.
I think I have had my say and I thank the Court for its attention.
Chief Justice Warren E. Burger: Thank you, Gentlemen.
The case is submitted.