BK Case No. 91-10051
1. In light of the Court's action on summary judgment, the Motions to Dismiss are moot.
2. Plaintiff relies heavily on the Supreme Court's decision in Interstate Commerce Comm'n v. Am. Trucking Assos., Inc., 467 U.S. 354, 81 L. Ed. 2d 282, 104 S. Ct. 2458 (1984), for the proposition that the ICC cannot void Mitchell's already filed tariff. Plaintiff's reliance on American Trucking is misplaced. Contrary to plaintiff's assertion, American Trucking supported the right of the ICC to retroactively reject filed tariffs. Although rejection of effective tariffs is a form of remedial power not expressly delegated to the Commission, the Supreme Court held that it was within the ICC's discretion in limited instances. "To lie within the Commission's discretionary power, the proposed remedy must satisfy two criteria: first, the power must further a specific statutory mandate of the Commission, and second, the exercise of power must be directly and closely tied to that mandate." American Trucking, 467 U.S. at 367. American Trucking's two-step test has been applied to deny debtors' efforts to recover undercharges in cases very similar to the one before this Court. See Freightcor Services, Inc. v. Vitro Packaging, Inc., 969 F.2d 1563 (5th Cir. 1992); Security Services, Inc. v. P-Y Transportation, Inc., Case No. 1:91CV2192 (N.D. OH Aug. 26, 1992). However, because we determine that Mitchell's improper filing rendered the tariff ineffective from the very beginning, the American Trucking test is not applicable.