Maislin Indus. v. Primary Steel, 497 U.S. 116 (1990)

Author: Justice Scalia

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Maislin Indus. v. Primary Steel, 497 U.S. 116 (1990)

Justice SCALIA, concurring.

I join the Court’s opinion, but add a few words in response to Justice STEVENS’ assertion that the Court has "fail[ed] to adhere today to the teaching of Chevron [U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984)]." Post at 152.

In my view, the Court correctly relies upon our prior "filed-rate" decisions, which were based not on the "regulatory scheme as a whole," post at 144, by which Justice STEVENS appears to mean the regulatory climate within which the statute then operated, post at 145-146, but rather on the text of the statute. Justice STEVENS argues that there is no textual limitation on the scope of the term "reasonable," as that term is used in 49 U.S.C. § 10701(a) (1982 ed.) ("A . . . practice related to transportation or service by a carrier . . . must be reasonable"), and that we must therefore accord deference to the Commission’s interpretation of that term. Post at 140-141, 151-152. I do not agree. Whatever else may qualify as an unreasonable practice, under no sensible construction of that term could it consist of failing to do what the statute explicitly prohibits doing -- viz., charging or receiving a rate different from the rate specified in a tariff. 49 U.S.C. § 10761(a) (1982 ed.).

Nor can the phrase "[e]xcept as provided in this subtitle," § 10761(a), carry the enormous weight that Justice STEVENS places upon it. Post at 142-143, and n. 6. That clause is affixed to only the first sentence of § 10761(a), which states that, before providing transportation and services, certain carriers must place their rates on file. (What is referred to by the exception is obvious -- such provisions as 49 U.S.C. § 10762(a)(1) (1982 ed.), which states that certain motor contract carriers that serve only one shipper need file only minimum rates.) But it is the second sentence of § 10761(a) that contains the requirement that only filed rates can be charged. Of course, the subject of the second sentence, "[t]hat carrier" (emphasis added), must reasonably be deemed to refer to a carrier covered by the first sentence -- so that the obligation to charge the filed rate applies only to those carriers required to file "the rate for the transportation or service." (Thus, a motor contract carrier required to file only minimum rates under § 10762(a)(1) can charge rates higher than those minimums.) But there is no way in which the "[e]xcept as provided" clause can be imported directly into the second sentence, causing it to recite an exception to the obligation to charge the required-to-be-filed rate, which Justice STEVENS asserts can refer to the "reasonable practices" requirement of § 10701(a) as readily as it can to the "reasonable rate" requirement. Post at 141-142. The basis for the "unreasonable rate" exception to the "filed rate" rule is not the "[e]xcept as provided" language at all; rather, it is the need to reconcile two textual provisions that would otherwise be categorically inconsistent (do not charge unreasonable rates, but charge whatever rates you have filed). While an "unreasonable rate" unavoidably means a rate that is economically unreasonable -- so that, where economic unreasonableness exists, §§ 10701(a) and 10761(a) need to be reconciled by assuming an implicit but unexpressed exception to the filed-rate requirement -- an "unreasonable practice" does not unavoidably mean charging the filed rate when a different rate has been promised, so, with respect to that term, normal construction of § 10701(a) (as in the previous paragraph) avoids any difficulty.

Finally, Justice STEVENS points to changes in the motor carrier industry occasioned in part by 1980 amendments to the statute, which amendments, he says, "represented a fundamental policy choice in favor of deregulation." Post at 147. See also post at 147-151. But the only amendments of any relevance to the requirement of § 10761(a) that a carrier collect no rate other than the filed rate are those that remove certain preexisting barriers to motor contract carriage, see generally Central & Southern Motor Freight Tariff Association, Inc. v. United States, 244 U.S.App.D.C. 226, 757 F.2d 301, 311-312 (1985) (per curiam), which amendments have the practical effect of making more carriers eligible for the preexisting exception to the filing requirement of § 10761(a), permitting the Commission to exempt them under certain circumstances. 49 U.S.C. § 10761(b) (1982 ed.). While this plainly reflects an intent to deregulate, it reflects an intent to deregulate within the framework of the existing statutory scheme. Perhaps deregulation cannot efficiently be accomplished within that framework, but that is Congress’ choice, and not the Commission’s or ours. It may well be, as Justice STEVENS thinks, that, after the 1980 amendments and the various administrative changes that the Commission has made by rule, "`[t]he skeleton of regulation remains; the flesh has been stripped away.’" Post at 148, quoting Orscheln Bros. Truck Lines, Inc. v. Zenith Electric Corp., 899 F.2d 642, 644-645 (CA7 1990). But it is the skeleton we are construing, and we must read it for what it says.

1. See Delta Traffic Service, Inc. v. Transtop, Inc., 902 F.2d 101 (CA1 1990); Orscheln Bros. Truck Lines, Inc. v. Zenith Electric Corp., 899 F.2d 642 (CA7 1990); Maislin v. Primary Steel, Inc., 879 F.2d 400 (CA8 1989) (case below); West Coast Truck Lines, Inc. v. Weyerhaeuser Co., 893 F.2d 1016 (CA9 1990); Seaboard System R. Co. v. United States, 794 F.2d 635 (CA11 1986). The decision of the Court of Appeals for the Eleventh Circuit in Seaboard System involved railroad regulation, rather than motor carrier regulation, but presented very similar issues.

The sole exception to this consensus is In re Caravan Refrigerated Cargo, Inc., 864 F.2d 388 (CA5 1989).

2. Thus, in the most frequently quoted statement of the filed rate doctrine, we wrote:

Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it unless it is found by the Commission to be unreasonable.

(Emphasis added). Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94, 97 (1915). Similarly, in Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 163 (1922), we wrote:

The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper.

(Emphasis added.)

3. See, e.g., 34 Stat. 587.

4. 49 U.S.C. § 10704(b)(1) (1982 ed. and Supp. V) provides in part:

When the Commission decides that a rate charged or collected by --

(A) a motor common carrier for providing transportation subject to its jurisdiction under subchapter 11 of chapter 105 of this title by itself, with another motor common carrier, with a rail, express, or water common carrier, or any of them;

or that a classification, rule, or practice of that carrier, does or will violate this chapter, the Commission shall prescribe the rate (including a maximum or minimum rate, or both), classification, rule, or practice to be followed.

5. 49 U.S.C. § 10762(a)(1) (1982 ed.) provides:

A motor common carrier shall publish and file with the Commission tariffs containing the rates for transportation it may provide under this subtitle. The Commission may prescribe other information that motor common carriers shall include in their tariffs.

6. The Court attempts to make hay of the fact that, under § 10761(a), carriers "may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff." According to the Court, this provision "requires the carrier to collect the filed rate." Ante at 131. That is true if the Court means that the carrier is obligated to seek payment of the filed rate, but not if the Court means that the carrier is entitled to receive payment of the filed rate. The longstanding reasonableness exception to the filed rate doctrine -- an exception not contested by the Court -- makes this much clear. Moreover, as has already been noted, the clause that prefaces § 10761(a) allows for the existence of exceptions to the collection requirement. The Court’s argument simply begs the question before us, which is under what conditions a valid defense to a carrier’s suit may exist.

Even less persuasive than the Court’s argument from the collection requirement is a related claim made by petitioners. They contend that, because carriers are legally obligated to collect the filed rate, the practice of filing suit to collect that rate cannot be unreasonable. See, e.g., Reply Brief for Petitioners 7-8. This argument, too, ignores the exceptions clause at the beginning of § 10761(a). Moreover, the argument mischaracterizes the practice deemed unreasonable by the Commission: a collection suit is one component of that practice, even though the suit, considered in isolation from the broader course of conduct, is not itself unreasonable. See NITL -- Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I.C. C.2d 623, 628, n. 11 (1989); see also ante at 122.

Justice SCALIA trots out the same argument again, this time harnessed to an assertion that the exceptions clause applies only to the first sentence of § 10761(a). Ante at 137 (concurring opinion). Although that is perhaps a possible reading of § 10761(a), it is obviously not the only one. There is no reason to believe that it is an interpretation of the section that the Commission must accept. In any event, Justice SCALIA admits that § 10701(a) -- which imposes a reasonableness condition upon practices and rates alike -- modifies the requirements of § 10761(a), and this admission renders moot his discussion of the exceptions clause. Ante at 137 (concurring opinion). In light of that admission, Justice SCALIA’s argument fails for exactly the reasons set out above.

7. See, e.g., 49 U.S.C. §§ 11903 and 11904 (1982 ed.).

8. See, e.g., Sugar Institute, Inc. v. United States, 297 U.S. 553, 582-583 (1936) (regulation by private agreement in violation of the Sherman Act); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 99 (1980) (state regulation of wine prices); United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 338 (1956) (federal regulation of natural gas prices).

9. See, e.g., Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251-252 (1951) (federal regulation of prices for electrical power); Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577-578 (1981) (federal regulation of prices for natural gas); H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 234, n. 1 (1989) (state regulation of rates for telephone service).


Though identical statutory standards govern both motor carrier and rail consolidations, their legislative backgrounds differ. The demand for motor carrier regulation came not from shippers, as in railroads, but from the roads themselves, who urged that virtually unregulated motor carrier competition threatened railroad financial stability. This view was also supported by the Interstate Commerce Commission and the Federal Coordinator of Transportation who, in his 1934 and 1935 reports, recommended legislation regulating interstate motor carriers. In addition, during hearings on proposed legislation, many truck operators, previously opposed to Federal regulation, favored such control because they feared the effects of unrestrained competition on the motor carrier industry itself. The result was legislation, enacted in 1935, which from the first placed considerable restraint on motor carrier competition.

Entry was controlled by certificates of convenience and necessity; those already in the field were given a preferred position by the grandfather clauses, assuring not only the right to continue in operation but also to expand within the areas or between the points which they already served. Moreover, the Commission was empowered to establish minimum as well as maximum rates. And this minimum rate power was soon utilized by the Commission both to protect the railroads from motor carrier competition as well as to safeguard the motor carrier industry from "destructive" competition within its own ranks. Indeed, from the inception of motor carrier regulation to the present day, the power to fix minimum rates has been more significant than the authority to fix maximum charges.

Report of the Attorney General’s National Committee to Study the Antitrust Laws 265 (1955).


To understand the purpose of the filed-rate doctrine and hence the Commission’s recent efforts to relax it, on which see National Industrial Transportation League -- Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 3 I.C.C.2d 99 (1986); Buckeye Cellulose Corp. v. Louisville & Nashville R.R., 1 I.C.C.2d 767 (1985), affirmed as Seaboard System R.R. v. United States, supra; Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I.C.C.2d 623 (1989), one must understand the history of federal regulation of common carriers. Railroads have heavy fixed costs, and, in their heyday, faced little effective competition from other modes of transportation. Naturally, they tended to load the fixed costs onto those shippers who had poor competitive alternatives, and to charge low prices to those shippers who had good alternatives by reason of (for example) being big enough to induce two or more railroads to serve their plants. This created a disparity in transportation costs painful to shippers who paid high railroad rates and were competing with shippers who paid low rates, and it also undermined the railroads’ efforts to cartelize railroad transportation. The confluence of interests between railroads and weak shippers resulted in a regulatory scheme in which railroads were forbidden both to price off tariff and to refuse service to any shipper at the tariffed rate. Western Transportation Co. v. Wilson & Co., supra, 682 F.2d at 1230-31. The scheme would have been undermined if carriers had been permitted to negotiate secret discounts with favored shippers. Regular Common Carrier Conference v. United States, 793 F.2d 376, 379 (D.C.Cir.1986). To deter this was the office of the filed-rate doctrine. It authorized carriers to recover the discounts regardless, which meant that the shipper could not count on being able to keep any discount that the railroad might dangle before it. Motor carriers do not have heavy fixed costs, but they do not like competition any more than railroads do, so when. in 1935. they were brought under federal regulation (in major part to protect the railroads from their competition), they were placed under the filed-rate doctrine too.

Orscheln Bros. Truck Lines, Inc. v. Zenith Electric Corp., 899 F.2d 642, 643-644 (CA7 1990).

12. As the Court’s opinion makes clear, there was no tension between judicial interpretation and agency policy in the cases that developed the filed rate doctrine. See ante at 128, citing Poor v. Chicago, B. & Q. R. Co., 12 I.C.C. 418, 421-422 (1907). On the contrary, a recurring theme in those cases is that the Commission, rather than the courts, should have primary responsibility for administration of the statute. The filed rate doctrine was regarded in significant part as a means for ensuring that this allocation of responsibility was respected. See, e.g., Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 440-442 (1907); Arizona Grocery Co. v. Atchison, T., & S.F.R. Co., 284 U.S. 370, 384-385 (1932); Baldwin v. Scott County Milling Co., 307 U.S. 478, 483-485 (1939). The most notable exception to this pattern is the 5-to-4 decision in T.I.M.E. Inc. v. United States, 359 U.S. 464 (1959), in which this Court prohibited district courts from staying collection proceedings pending agency review of the reasonableness of a filed rate. Although T.I.M.E. is striking similar to today’s decision in a host of respects, the majority does not rely upon it. Its reluctance to place any substantial weight upon T.I.M.E. is easily understood, because that precedent was greatly limited by this Court’s subsequent decision in Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 88-89 (1962), and what remained of it was soon thereafter unambiguously repudiated by Congress. See Act of Sept. 6, 1965, Pub.L. No. 89-170, §§ 6-7, 79 Stat. 651-652 (codified at 49 U.S.C. § 11705(b)(3) (1982 ed. and Supp. V), 49 U.S.C. § 11706(c)(2) (1982 ed.)).

13. Motor Carrier Act of 1980, Pub.L. 96-296, 94 Stat. 793.

14. Delta Traffic Service, Inc. v. Transtop, Inc., 902 F.2d 101, 109 (CA1 1990); Orscheln Bros. Truck Lines, Inc. v. Zenith Electric Corp., 899 F.2d 642, 646 (CA7 1990); Maislin v. Primary Steel, Inc., 879 F.2d 400, 406 (CA8 1989) (case below); West Coast Truck Lines, Inc. v. Weyerhauser Co., 893 F.2d 1016, 1023, 1025-1026 (CA9 1990).

15. See n. 12, supra.


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Chicago: Scalia, "Scalia, J., Concurring," Maislin Indus. v. Primary Steel, 497 U.S. 116 (1990) in 497 U.S. 116 497 U.S. 137–497 U.S. 138. Original Sources, accessed December 10, 2023,

MLA: Scalia. "Scalia, J., Concurring." Maislin Indus. v. Primary Steel, 497 U.S. 116 (1990), in 497 U.S. 116, pp. 497 U.S. 137–497 U.S. 138. Original Sources. 10 Dec. 2023.

Harvard: Scalia, 'Scalia, J., Concurring' in Maislin Indus. v. Primary Steel, 497 U.S. 116 (1990). cited in 1990, 497 U.S. 116, pp.497 U.S. 137–497 U.S. 138. Original Sources, retrieved 10 December 2023, from