dissenting:
I respectfully dissent.
“[F]ederal-court authority to reject Commission rate orders for whatever reason extends to the orders alone, and not to the rates themselves_” Burlington Northern, Inc. v. United States, 459 U.S. 131, 141, 103 S.Ct. 514, 521, 74 L.Ed.2d 311 (1983). Accordingly, when the Tenth Circuit set aside the ICC “decision” and remanded the case to the ICC for further proceedings “to render a decision which will more fully explain and justify the action taken, whatever it may be,” Union Pacific R.R. v. United States, 637 F.2d 764, 768 (10th Cir.1981), the ICC maximum rate of $7.91 per ton was unaffected.
The linchpin of Union Pacific’s claim against Nevada Power for the alleged underpayments must be that the $7.91 maximum rate set by the ICC went away when the Tenth Circuit set aside the ICC decision, or that the Tenth Circuit decision enabled the Union Pacific filed rates to trump the ICC $7.91 maximum reasonable rate. The Supreme Court tells us in Burlington Northern that the courts (in this case the Tenth Circuit) cannot do away with ICC rates. The $7.91 maximum rate set by the ICC, therefore, remained effective notwithstanding the Tenth Circuit decision, and I am unpersuaded that the carrier can ignore this maximum rate by relying upon rates it has filed, and which prompted the ICC to set the maximum reasonable rate. See Maislin Industries v. Primary Steel, — U.S. -, 110 S.Ct. 2759, 2767, 111 L.Ed.2d 94 (1990) (“filed rate is not enforceable if the ICC finds the rate to be unreasonable”).
The ICC in due course will determine what debits and credits are appropriate between the parties to this litigation. Pending that determination, we should not interfere in the work of the ICC under the guise of the third Burlington Northern proposition that “where there is a dispute about the appropriate rate, the equities favor allowing the carrier’s rate to control pending decision by the Commission, since under the Act, the shipper may receive reparations for overpayment while the carrier can never be made whole for underpayment.” Burlington Northern, 459 U.S. at 141-42, 103 S.Ct. at 520-51. Here, the Commission has set a maximum reasonable rate, albeit a rate which is subject to reconsideration in light of the Tenth Circuit’s decision in Union Pacific, 637 F.2d at 768. Moreover, I think it is inappropriate for this court to apply Burlington Northern’s third proposition when to do so requires us to violate Burlington Northern’s second *1437proposition. See Burlington Northern, 459 U.S. at 141-42, 103 S.Ct. at 520-21.
I would reverse the district court’s order granting summary judgment and would remand this case to the district court with instructions to stay proceedings in that court pending resolution of the parties’ dispute now pending before the ICC.