needed. Congress determined the policy that governs us in applying the law." 361 U.S. at 82, 80 S. Ct. at 15.
What, then, is the conclusion of the matter? It appears that there is an important question of public interest relating to separation of powers and the scope of executive or administrative authority which is presented by the case at bar. Prima facie the United States Attorney's motion is unfounded when it says that "the facts do not support the entry of a judgment in favor of the United States." On the contrary, it would seem that the Government would clearly win, and that the defendant might prudently pay the $250.
However, this is an old case, instituted in 1967, and according to prevailing statistical standards of judicial administration any case over three years old is an old case and adds to the unpalatable "backlog" which gives the news media which cover the court system something to talk about which does not overtax a layman's powers of legal analysis.
Therefore, if at all consistent with our sense of duty, this Court should not discourage any effort to put an end to this stale litigation.
This conclusion is reinforced by our belief that the situation is in fact not hazardous to the actual safety of the railroad employees. On its merits (which are not for us to judge) it would seem that the agency's determination (obiter dictum, brutum fulmen, or ultra vires though it be) is supported by scientific tests and by common sense. Hence no strong public interest forbids relegation of the parties to another remedy, if such be available.
We think there are such remedies. Since this pattern of operation is a recurrent one, a new case on the same facts can be instituted at any time; and it is at least arguable that under 45 U.S.C. § 6 the United States Attorney is duty bound "to bring such suits upon duly verified information being lodged with him of such violation having occurred."
In the second place, we believe the intervening union is entitled to seek judicial review in a three-judge court of the agency's ruling of October 24, 1972. 49 U.S.C. § 1653(c) provides that actions of the Department of Transportation shall be judicially reviewable "in the same manner as if such . . . actions had been by the . . . agency [here the I.C.C.] exercising such functions . . . immediately preceding their transfer." Review of I.C.C. orders under 28 U.S.C. § 2325 by a three judge court is a familiar feature of the federal judicial system. Under existing law, there is no specified time limit within which such actions must be brought.
Lack of statutory authority to take the action assailed has always been a valid ground for setting aside Commission action. I.C.C. v. Union Pacific R.R. Co., 222 U.S. 541, 547, 32 S. Ct. 108, 56 L. Ed. 308 (1912).
Accordingly, we grant the motion to dismiss.
And now, this 6th day of December, 1972, after argument, for the reasons set forth in the foregoing opinion,
It is ordered that said motion by plaintiff to dismiss be and the same hereby is granted, and the above-styled action be and it hereby is dismissed; provided, however, that intervening union may petition the Court for reinstatement if (1) union within 90 days brings an action in a three judge court for review of the agency's action and said review is denied for lack of standing or as untimely or otherwise without determination on the merits and (2) thereafter upon presentation of duly verified information to the United States Attorney regarding an identical current incident he shall have failed to file suit for collection of penalty within 30 days of the lodging of such information.