Unpublished Dispositiondaniel L. Weakland and Jackie N. Adkins, Petitioners, v. Interstate Commerce Commission; Wenham Transportation, Inc.;nora Wenham; Frederick Wenham; Jeffrey Wenham;timothy Wenham, Respondents, 787 F.2d 594 (6th Cir. 1986)

This matter is before the Court for consideration of the motion of the appellees, Wenham Transportation, Inc., Frederick, Jeffrey and Timothy Wenham, to dismiss this appeal as being untimely filed. Appellants have not responded thereto.

On June 3, 1985, the Interstate Commerce Commission rendered a decision against appellants (truck drivers employed by appellee Wenham Transportation, Inc.) on their claim that a certain fuel surcharge taxed to them by Wenham Transportation was illegal. The order of the Interstate Commerce Commission dismissing appellants' complaint became effective June 10, 1985. Appellants filed an appeal from that order in this Court on August 12, 1985. Appellees have moved to dismiss the appeal as being untimely filed.

Judicial review of orders of the Interstate Commerce Commission is governed by 28 USC Sec. 2344. That statute provides, in pertinent part, that a party aggrieved by a final order of the agency may, within 60 days, file a petition to review the order in the Court of Appeals where venue lies. The order from which appellants seek review was entered June 10, 1985. The petition for review was due August 9, 1985; it was filed August 12, 1985--3 days late. The 60 day limitation of 28 USC Sec. 2344 is jurisdictional and cannot be judicially enlarged. Eagle-Picher Industries v. United States, Environmental Protection Agency, 759 F.2d 905 (D.C. Cir. 1985); State of Texas v. United States, 749 F.2d 1144 (5th Cir.), cert. denied, ---- U.S. ----, 105 S. Ct. 3513, 87 LEd2d 642 (1985); Cartersville Elevator, Inc. v. Interstate Commerce Commission, 724 F.2d 668, 672, on rehearing 735 F.2d 1059 (8th Cir. 1984); Illinois Central Gulf Railroad v. Interstate Commerce Commission, 720 F.2d 958, 960 (7th Cir. 1983); State of New York v. United States, 568 F.2d 887 (2nd Cir.), cert. denied, 449 U.S. 887 (1977).

Therefore, it is ORDERED that the motion to dismiss be granted and this appeal is dismissed.