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July 20, 1967

CITY OF WILLIAMSPORT et al., Plaintiffs,
UNITED STATES of America, Interstate Commerce Commission and the Pennsylvania Railroad Company, Defendants

The opinion of the court was delivered by: NEALON

Defendant, Pennsylvania Railroad Company (Pennsylvania), has moved this three-Judge Court to dissolve a temporary restraining order issued May 15, 1967, by District Judge Nealon or, in the alternative, to vacate the order pending the posting of security.

 Pennsylvania operates passenger trains Numbers 570 (Southbound) and 571 (Northbound) between Buffalo, New York, and Baltimore, Maryland. On December 7, 1966, in accordance with the provisions of Section 13a(1) of the Interstate Commerce Act, 49 U.S.C.A. § 13a, *fn1" Pennsylvania posted notices of its intention to discontinue the operation of these trains effective January 15, 1967. Petitions of protest were filed by numerous parties and by order entered January 3, 1967, the Interstate Commerce Commission instituted an investigation of the proposed discontinuance and, as provided for in § 13a, required the trains to operate for a period not to exceed four months pending hearing and decision in such investigation. Hearings were held and by order served May 12, 1967, Division 3 of the ICC, in a two-to-one decision, directed Pennsylvania to continue the operation of both trains between Baltimore, Maryland, and Harrisburg, Pennsylvania, for a period of one year and permitted Pennsylvania to discontinue operation of these trains between Harrisburg and Buffalo, New York. This report and order of Division 3 was not administratively final within the meaning of Section 17(9) of the Interstate Commerce Act, 49 U.S.C.A. § 17(9), *fn2" as petitions for reconsideration of the Division 3 order may be filed within thirty days by the terms of Section 1.01(a)(2) of the Commission's General Rules of Practice. Pennsylvania immediately posted notices that trains Nos. 570 and 571 would make their last runs between Buffalo and Harrisburg on Monday, May 15, 1967. On that day, plaintiffs who were protestants in the Commission proceedings, filed a complaint in the United States Court for the Middle District of Pennsylvania challenging the findings of Division 3 and requesting the appointment of a three-Judge Court as required by 28 U.S.C.A. §§ 2284, 2321 and 2325. Pending the appointment of the three-Judge Court and action on their application for an interlocutory injunction, plaintiffs requested the District Judge to whom the application was made to issue a temporary restraining order in accordance with Section 2284(3) of Title 28 U.S.C. *fn3" Pennsylvania's decision to discontinue the Buffalo-Harrisburg runs on May 15 could not otherwise be forestalled because the four-month delay ordered by the Commission under Section 13a(1) would expire on that date. According to plaintiffs, they would suffer irreparable damage if the discontinuance of trains took effect while the petitions for reconsideration were pending with the Commission as (1) it would very likely prejudice the final action of the agency, (2) freight shipments normally handled on these trains would be diverted to other carriers and would never be recovered, (3) the jobs of railroad employees would be irretrievably lost, and (4) they have a high probability of success on the ultimate merits of the case. Therefore, plaintiffs asserted, unless a temporary restraining order was granted, they would be denied an effective exhaustion of the ICC's administrative procedure and effective review by a three-Judge Court.

 After finding that immediate and irreparable injury would result if the trains were discontinued on May 15, a temporary restraining order, without any requirement for the posting of security, was issued by District Judge Nealon. The order provided that if plaintiffs petitioned the ICC by May 25, 1967, then the restraining order would remain in effect until such time as a final order was issued by the ICC, or until further order of the Court.

 The present three-Judge Court, consisting of Circuit Judge Freedman, Chief Judge Sheridan and Judge Nealon, was constituted May 19, 1967, and this motion followed. The reasons advanced in support of defendant's present motion are:

 (1) the Court is without authority to review passenger train discontinuances which have been effected in accordance with Section 13a(1) of the Interstate Commerce Act, 49 U.S.C.A. § 13a(1);

 (2) even assuming three-Judge Court jurisdiction to review the Interstate Commerce Commission order of May 15, 1967, after it becomes final, plaintiffs are not entitled to any review or relief before the order becomes final, and

 (3) the injunctive relief was granted by the District Judge under his general equitable powers and not pursuant to 28 U.S.C.A. § 2284 and, therefore, the plaintiffs were required to post security under F.R.Civ.P. 65(c). *fn4"

 Concerning the first argument advanced by movant, the remaining defendants, viz., the United States and the ICC, take a contrary position and filed a joint memorandum at the hearing in which they asserted that "* * * the courts have jurisdiction to review any final Report and Order of the Commission when issued in this case." The question of judicial review of Section 13a(1) investigations where the Commission did enter into a full investigation *fn5" has been considered in State of Vermont v. Boston & Maine Corp., D.C.Vt., 269 F. Supp. 80, decided May 11, 1967; State of New Hampshire v. Boston & Maine Corp., 251 F. Supp. 421 (D.C.N.H.1965), and State of Minnesota v. United States, 238 F. Supp. 107 (D.C.Minn.1965). In the Minnesota case, the Commission undertook an investigation of proposed train discontinuances and decided that the value of the services provided was outweighed by the burden on the carrier of maintaining it. When the State of Minnesota sought review, the Court concluded that the decision of the Commission to terminate the investigation was not an appealable order within the meaning of 28 U.S.C. § 1336. In New Hampshire, the Commission instituted an investigation of proposed train discontinuances and held extended hearings, the result of which was an order requiring seven trains to continue in service for one year, while, as to the others, it found that the continued operation thereof was "not required by public convenience and necessity and * * * will unduly burden interstate commerce." New Hampshire appealed and the Court held that § 13a(1) was self-implementing in that it allowed a carrier to discontinue service without requiring any action by the Commission to effectuate the carrier's announced intention and, since the discontinuance comes not from Commission action, but from the statute directly, there was no Commission order, within the meaning of Section 1336, from which an appeal may be taken. The Court recognized further that the railroad would have a right to appeal the Commission's order that seven trains were to continue in service for one year, but held that Congress did not provide the public with the right to judicial review with respect to the discontinued trains.

 The Vermont case was similar to the one before us in that the Court was asked to issue a temporary restraining order before the Commission handed down its final order. After examining the Minnesota and New Hampshire holdings, the Court adopted the contrary view on jurisdictional review of discontinuances and stated:

"* * * we fail to find convincing evidence that the Congress intended the unusual and concededly unfair result of granting judicial review of the Commission's determination solely to the roads, and not to opposing parties. * * * If an order is wrongfully granted, the road can obtain review and reversal. If an order is wrongfully refused, ordinary principles of review of administrative determinations, as well as elemental fairness call for review at the instance of opposing parties. Congress having set standards for the Commission in the Act, its decision to refuse to order continuance as well as its decision to order it, should be reviewable * * *."

 A reading of the legislative history of the Transportation Act of 1958 *fn6" indicates that Section 13a was designed to permit railroads, at their option, to have the Interstate Commerce Commission, rather than State Commissions, pass upon discontinuances or changes in the operation or service of trains. There is nothing to suggest that Congress intended to deny judicial review of passenger discontinuances. As was noted in a recent United States Supreme Court opinion in which judicial review under the Federal Food, Drug, and Cosmetic Act was considered:

"The question is phrased in terms of 'prohibition' rather than 'authorization' because a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681, decided May 22, 1967.

 Later on in the opinion, Mr. Justice Harlan, speaking for the Court, quoted from Jaffe, Judicial Control of Administrative ...

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