Maislin Industries US Inc. v. Primary Steel Inc./Concurrence Scalia

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. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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 provided 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 § 10762(a)(1), 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 2774. 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 pre-existing 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 pre-existing exception to the filing requirement of § 10761(a), permitting the Commission to exempt them under certain circumstances. § 10761(b). 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 2777, 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.