Tennessee Public Service Commission v. Interstate Commerce Commission

Order Petitioner Tennessee Public Service Commission (TPSC) seeks review of two decisions issued by the Interstate Commerce Commission (ICC) concerning exemptions granted Intervenor Con-Way Southern Express, Inc. (CSE) and moves this Court to stay enforcement of those orders pending review. Intervenor CSE and the respondent ICC oppose a stay and have filed separate motions to dismiss the petition as untimely filed. TPSC opposes the motions to dismiss. Upon review of the materials before the Court, we find that TPSC's petition is neither timely nor taken from an appealable order. The Hobbs Act, 28 U.S.C. § 2344, requires that a party seeking review of a final administrative order of the ICC file a petition for review with the appellate court within 60 days after entry. Unlike judicial orders, ""entry of an ICC administrative order occurs when the agency's signature and seal are affixed to the order""; that date corresponds to the service date of the order. Chem-Haulers, Inc. v. United States, 536 F.2d 610, 614-15 (5th Cir. 1976). The 60 day period is a jurisdictional requirement which may not be altered or extended. Kentucky v. Brock, 845 F.2d 117, 120 (6th Cir. 1988); State of Texas v. United States, 749 F.2d 1144, 1146 (5th Cir.), cert. denied, 472 U.S. 1032 (1985); Calif. Ass'n of the Physically Handicapped v. FCC, 833 F.2d 1333, 1334 (9th Cir. 1987); Sierra Club v. NRC, 825 F.2d 1356, 1359 (9th Cir. 1987). To be timely field, the petition must be received by the appellate court within 60 days; mailing the petition within that time frame is insufficient. See Danko v. Dir. OWCP, 846 F.2d 366, 369 (6th Cir. 1988) (per curiam); see also Kahler-Ellis Co v. Ohio Turnpike Comm'n, 225 F.2d 922 (6th Cir. 1955).