upon whom Congress has placed the responsibility for action, we think it is an indispensable party to this action. Cf. Service Storage $ Transfer Co. v. Virginia, 359 U.S. 171, 177, 79 S. Ct. 714, 3 L. Ed. 2d 717 (1959).
Indispensable Party: United States
On the other hand, while there is little authority on the exact point, we think that the United States is not an indispensable party to this declaratory judgment action.
Substantial authority does exist for the proposition that the United States may not be sued under the Declaratory Judgments Act without its consent.
And although §§ 2321 and 2322, 28 U.S.C.A., require that actions to enforce, suspend, enjoin, annul, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be brought against the United States, in this declaratory judgment action the plaintiff does not seek to have this court do any of these things. Thus, the provisions of 2321 and 2322, 28 U.S.C.A., requiring that suit be brought against the United States do not govern. Isner v. Interstate Commerce Commission, 90 F.Supp. 361, 365 (E.D.Mich.1950); cf. Midwest Coast Transport v. United States, 125 F.Supp. 557 (D.S.D.1954).
The Declaratory Judgments Act vests in the court discretion whether or not to 'declare the rights and other legal relations of any interested party seeking such declaration.'
For such an action to be justiciable, the issues at stake must be definite and concrete, touching legal relations of parties having adverse legal interests, and the issues must constitute a real and substantial controversy admitting of specific relief through a decree of conclusive character. Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617 (1937); 6 Moore, Federal Practice P57.11 (2d ed. 1953).
The complaint does not measure up to the standards of justiciability set by the Declaratory Judgments Act. Plaintiff has attached to the complaint a copy of its Certificate of Public Convenience and Necessity, and requested, in effect, that we delineate for it all existent commodities which, as of September 14, 1942, were within the scope of its hauling authority, and all such commodities as were not. This necessarily involves extensive judicial promulgation of definitive standards best reserved to the expertise of the Interstate Commerce Commission. Cf. Service Storage & Transfer Co. v. Virginia, supra.
The alleged actions, threats, and lack of knowledge of the defendant-employee do not give rise to a case or controversy, and cannot be judicially reviewed. Cf. Midwest Coast Transport v. United States, supra, 125 F.Supp. at p. 561. Differences of opinion between plaintiff and defendant-employee as to the interpretation of the Certificate have not ripened into a controversy over plaintiff's legal rights thereunder; their disagreements have not taken on a fixed and final shape so that the court can see what legal issues it is deciding. Plaintiff has not been formally charged civilly or criminally with violating the terms of its Certificate pursuant to § 322(a)(b), 49 U.S.C.A., nor has any order been issued pursuant to § 304(c) or § 312(a), 49 U.S.C.A. Plaintiff does not request an adjudication that it has a right to do, or to have, anything in particular. Cf. Public Serv. Comm. v. Wycoff Co., 344 U.S. 237, 244, 73 S. Ct. 236, 97 L. Ed. 291 (1952).
Moreover, the declaratory judgment procedure will not be used to preempt and prejudge issues that are committed to the Interstate Commerce Commission. It would not be tolerable that a declaratory judgment interpret a certificate of public convenience in order to forestall proceedings by the Interstate Commerce Commission, which is authorized to try such issues in the first instance. Responsibility for effective functioning of the administrative process cannot be thus transferred from the Interstate Commerce Commission, where Congress has placed it, to the courts. Cf. Public Serv. Comm. v. Wycoff Co., supra, 344 U.S. at p. 246, 73 S. Ct. at p. 241, 97 L. Ed. 291, and Service Storage & Transfer Co. v. Virginia, supra.
Even if plaintiff should effectively make the Interstate Commerce Commission a party to this action, for the foregoing reasons we are of the opinion that the court would not have jurisdiction of the subject matter as alleged in the complaint.
Neither does the Commission's denial of plaintiff's attempts to secure a declaratory order entitle plaintiff to a judicial review. A court does not have jurisdiction to review an agency's denial of a declaratory order which denial is discretionary with the agency. Title 5 U.S.C.A. 1004(d) and 1009. Continental Oil Company v. Federal Power Commission, 285 F.2d 527 (5th Cir. 1961). The Commission's discretionary refusal of declaratory relief does not require plaintiff to do or refrain from doing anything, fix any liability or responsibility, civil or criminal, upon plaintiff, or finally determine its rights or obligations. United Gas Pipe Line Co. v. Federal Power Commission, 203 F.2d 78 (5th Cir. 1953); Motor Freight Express v. United States, 60 F.Supp. 238 (statutory court E.D.Pa.1945).
An appropriate order will be entered dismissing the complaint for declaratory judgment.