CITY OF CHICAGO ET AL. v. UNITED STATES ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS No. 101.
Argued November 20, 1969
Decided December 9, 1969 *
[ Footnote * ] Together with No. 102, City of Chicago et al. v. United States et al., also on appeal from the same court.
Orders of the Interstate Commerce Commission discontinuing investigations conducted under 13a (1) of the Interstate Commerce Act with regard to the notice of rail carriers to terminate interstate passenger services held judicially reviewable on the complaint of aggrieved persons. Pp. 164-167.
294 F. Supp. 1103 and 1106, reversed.
Gordon P. MacDougall argued the cause for appellants in both cases. With him on the brief were Raymond F. Simon, Charles E. Griffith III, Robert E. Kendrick, Arthur K. Bolton, Harold N. Hill, Jr., J. Robert Coleman, Edward J. Hickey, Jr., William G. Mahoney, Bernard Rane, Mark Goldstein, Eugene W. Ward, Chester L. Rigsby, Weldon A. Cousins, and Leon M. Despres. Howard E. Shapiro argued the cause for the United States et al. urging reversal in both cases. With him on the brief were Solicitor General Griswold, Assistant Attorney General McLaren, and Robert W. Ginnane.
James W. Hoeland argued the cause for appellees Chicago & Eastern Illinois Railroad Co. et al. in both cases. With him on the brief were Clifford T. Coomes, Joseph L. Lenihan, Harry R. Begley, and P. C. Mullen.
Paul Rodgers filed a brief for the National Association of Regulatory Utility Commissioners as amicus curiae urging reversal in both cases. [396 U.S. 162, 163]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The question in these cases is whether orders of the Interstate Commerce Commission discontinuing investigations respecting the notice of rail carriers to terminate or change the operation or services of interstate passenger trains are judicially reviewable on the complaint of aggrieved persons.
Section 13a (1) of the Interstate Commerce Act, as amended, 72 Stat. 571, 49 U.S.C. 13a (1), provides, with details not important here, that a rail carrier may file notice of such discontinuance or change with the Commission and that within 30 days the Commission may make an investigation of the proposed discontinuance or change. Apart from interim relief, the Commission may order continuance of the operation and service for a period not to exceed one year. 1 One of the present cases involves two interstate passenger trains between Chicago and Evansville, Indiana, discontinued by the Chicago & Eastern Illinois Railroad Co., 331 I. C. C. 447, and the other involves two interstate passenger trains between New Orleans and Cincinnati discontinued by the Louisville & Nashville Railroad Co., 333 I. C. C. 720.
In each case the Commission, addressing itself to the standards in 13a (1), found that continued operation of the trains was not required by public convenience and necessity and that continued operation would unduly burden interstate commerce. It thereupon entered in each case an order terminating its investigation of the proposed discontinuance. [396 U.S. 162, 164]
Appellants in each case - cities, state regulatory agencies, and other interested parties - brought these suits before the same three-judge court to review the Commission's decisions. It is provided by 28 U.S.C. 1336 (a):
As stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 140 , we start with the presumption that aggrieved persons may obtain review of administrative decisions unless there is "persuasive reason to believe" that Congress had no such purpose. Certainly under 13a (1) the carrier, if overruled by the Commission, could obtain review. We can find no talismanic sign indicating that Congress desired to deny review to opponents of interstate discontinuances alone.
Section 13a in its present form came into the Act in 1958 and was designed to supersede the prior confused and time-consuming procedure under which the States [396 U.S. 162, 165] supervised the discontinuance of passenger trains. Accordingly, Congress provided a uniform federal scheme to take the place of the former procedure. 3 A single federal standard was to govern train discontinuances whether interstate or intrastate, though the procedure of 13a (1) for discontinuance of an interstate train was made somewhat different from the procedure for discontinuance of intrastate trains. 4 But the Commission is to have the final say in each case and "precisely the same substantive standard" now governs discontinuance of either interstate or intrastate operations. Southern R. Co. v. North Carolina, 376 U.S. 93, 103 .
Whether the Commission should make an investigation of a 13a (1) discontinuance is of course within its discretion, a matter which is not reviewable. New Jersey v. United States, 168 F. Supp. 324, aff'd, 359 U.S. 27 . [396 U.S. 162, 166] But when the Commission undertakes to investigate, it is under a statutory mandate:
[ Footnote 2 ] There is a conflict among the District Courts. Minnesota v. United States, 238 F. Supp. 107 (D.C. Minn.), and New Hampshire v. Boston & Maine Corp., 251 F. Supp. 421 (D.C. N. H.), are in accord with the District Court in the instant cases. Opposed to that view are Vermont v. Boston & Maine Corp., 269 F. Supp. 80 (D.C. Vt.), and New York v. United States, 299 F. Supp. 989 (D.C. N. D. N. Y.). And see City of Williamsport v. United States, 273 F. Supp. 899, 282 F. Supp. 46 (D.C. M. D. Pa.), aff'd, 392 U.S. 642 .
[ Footnote 3 ] "Without reciting individual cases the subcommittee is satisfied that State regulatory bodies all too often have been excessively conservative and unduly repressive in requiring the maintenance of uneconomic and unnecessary services and facilities. Even when allowing the discontinuance or change of a service or facility, these groups have frequently delayed decisions beyond a reasonable time limit. In many such cases, State regulatory commissions have shown a definite lack of appreciation for the serious impact on a railroad's financial condition resulting from prolonged loss-producing operations. "To improve this situation, the subcommittee proposes to give the Interstate Commerce Commission jurisdiction in the field of discontinuance or change of rail services and facilities similar to the jurisdiction it now has over intrastate rates under section 13 of the Interstate Commerce Act so that when called upon to do so it may deal with such matters that impose an undue burden on interstate commerce. This, the subcommittee believes, would protect and further the broad public interest in a sound transportation system and would prevent undue importance being attached to matters of a local nature." S. Rep. No. 1647, 85th Cong., 2d Sess., 22. For a review of the legislative history of 13a (2), see Southern R. Co. v. North Carolina, 376 U.S. 93, 100 -103.
[ Footnote 4 ] See n. 1, supra.
[ Footnote 5 ] The Administrative Procedure Act, 5 U.S.C. 551 (6) (1964 ed., Supp IV), defines "order" as including a "negative" form of "a final disposition" by agency action. And that kind of "order" is subject to judicial review. 5 U.S.C. 551 (13), 701 (b) (2), 702 (1964 ed., Supp. IV). When carriers file new rates, the Commission has authority on its own initiative or on complaint to make an investigation either with or without suspension of the new rates. 49 U.S.C. 15 (7). Where the Commission finds the proposed rates lawful, its order reads: "[T]he investigation proceedings [are] discontinued." See Eastern Central Motor Carriers Assn. v. Baltimore & O. R. Co., 314 I. C. C. 5, 51. Such orders are reviewable. Cooper-Jarrett, Inc. v. United States, 226 F. Supp. 318, aff'd, 379 U.S. 6 . [396 U.S. 162, 168]