the Court held, it follows that private litigants are not to be permitted to interfere with the performance of that function. The fulfillment of Amtrak's role depends as much upon the service which it does provide as upon its ability promptly to terminate uneconomic service. If no one but the Attorney General may sue to prevent Amtrak from discontinuing a train, surely no one but the Attorney General should be allowed to sue to compel Amtrak to surrender a particular service.
In short, Congress has effectively precluded judicial review of Amtrak's characterization of specific trains as constituting "intercity" passenger service. With regard to such trains as form a part of the "basic system," the denial of judicial review has been made explicit in § 202 of the Act. With regard to "additional" service furnished by Amtrak, the reasoning of the Supreme Court in the National Rail Passenger case, supra, would seem to preclude judicial review at the suit of anyone but the Attorney General, at least so long as the service is being provided by Amtrak. Whether there may remain a residual cause of action which might later be asserted by private litigants against railroads in the event of unilateral termination of such service by Amtrak seems doubtful but in any event need not be decided now. Amtrak has contended in this litigation that both the 200-series and the 600-series of trains have been part of the "basic system" from the beginning. The parties have devoted much argument to the precise definition of the "basic system," a question as to which the statute is not altogether clear.
But since both series of trains have now been in operation pursuant to the Amtrak contract for more than two years, both series are undoubtedly now a part of the "basic system," and possible future discontinuances can result only if authorized by the ICC pursuant to § 13 of the Interstate Commerce Act.
I therefore decline to consider whether the ICC had jurisdiction to characterize these trains as "commuter," or whether such characterization was correct.
Different principles are applicable to contests over the discontinuance of trains which are not being operated under an Amtrak contract. To the extent that these provide intercity service, it is clear that the Amtrak statute permits immediate discontinuance by the carriers. Indeed, it would be a violation of the Amtrak statute for any carrier which has entered into a contract with Amtrak to provide intercity passenger service, except pursuant to its Amtrak contract ( § 401(c)). But it is equally clear that the Amtrak statute does not apply to commuter trains, and was not intended to alter the legal requirements, both substantive and procedural, which railroads must meet before discontinuing commuter service. The Amtrak statute does not provide a mechanism for determining which of a railroad's non-Amtrak passenger service is "commuter" and therefore must be continued. But this, of course, does not mean that Congress intended that such disputes could never be resolved.
It is correct that the successful assertion by state or local private litigants that certain trains are "commuter," and cannot be discontinued, can have a substantial impact upon Amtrak's operations. But Amtrak itself has standing to intervene in any such litigation and defend its position. The Attorney General would presumably have little interest in attempting to establish that a particular non-Amtrak service is "commuter" and therefore must be continued. In the unlikely event that a railroad insisted upon operating an "intercity" train by labeling it "commuter" service, presumably both Amtrak and the Attorney General would have a cause of action under the Amtrak statute to prevent such violation of that statute. But, at least in cases in which neither Amtrak nor the Attorney General perceives any threat to Amtrak's operations, other parties which do have an interest in the determination must have standing to obtain such a determination, and a forum.
Plaintiffs in Civil Action Nos. 71-2301 and 71-1002 requested the convening of a three-judge court, on the theory that 28 U.S.C. § 2325 is applicable. That statute requires a three-judge court in cases involving an application for
"an interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission."
That statute does not apply to the present case, since no "order" of the Commission is involved, and no injunction restraining enforcement of such an order is sought. The ICC itself has pointed out that no orders have been entered by the Commission, and that its reports are purely advisory in character. Finance Docket 26632 and 26634.
Moreover, in cases referred to the Commission pursuant to 28 U.S.C. § 1336(b), it is clear that "the court which referred the question or issue shall have exclusive jurisdiction" over any subsequent review of the Commission's action. See also 28 U.S.C. § 1398(b). The cases of Keller Industries, Inc. v. United States, 449 F.2d 163, 167 (5th Cir. 1971) and International Transport, Inc. v. United States, 337 F.Supp. 985 (W.D.Mo.1972) are further authority for denying the application for a three-judge court.
This Court's previous determination that, because of this Court's continuing jurisdiction over Debtor's contract with Amtrak, litigation over discontinuances in connection with implementation of the Amtrak statute should be confined to this District, has been upheld on appeal, In re Penn Central Transportation Co., Appeal of Congress of Rwy. Unions, et al., 446 F.2d 1109 (3d Cir. 1971), and the Third Circuit has also held that there is no basis for transferring this litigation to another judge. In re Penn Central Transportation Co., Appeal of State of New York, 457 F.2d 381, at 387 (3d Cir. 1972).
A. The Chatham, New York to New York City Service.
As noted earlier, this Court, in the reorganization proceedings, as a precautionary measure, enjoined the Trustees from discontinuing any passenger service except as might be permitted by this Court after five days' notice to all interested parties. The primary purpose of this Order (No. 232) was to make certain that, unless and until a contract between the Debtor and Amtrak was approved by this Court, after due notice and hearing, the status quo would be preserved. After the Amtrak contract was approved, this Court granted the Trustees' application to discontinue all intercity passenger service (specified in the Trustees' application) except in those few instances where opposition was expressed on the theory that the particular service was "commuter" rather than "intercity." Those cases were referred to the ICC for recommendation and report.
In the Chatham case, the ICC found that the service was indeed "intercity," rather than "commuter," and this Court thereupon dissolved the temporary injunction and authorized the discontinuance. The Court of Appeals viewed the case as one in which this Court had declined to grant a further preliminary injunction against the discontinuance. Finding that the State of New York had not demonstrated a likelihood of ultimate success on the merits, and that the potential for irreparable harm if the trains were discontinued was outweighed by the irreparable harm the Debtor would have suffered if the discontinuance had been enjoined, the Court of Appeals affirmed. In re Penn Central Transportation Co., Appeal of the State of New York, supra.
Unlike the Pennsylvania litigants, the State of New York has not filed any separate plenary action challenging the ICC determination, but has relied upon the presentation it made, in the reorganization proceeding and in C.A. No. 71-1003, in opposition to the Trustees' request for leave to discontinue the trains. In fairness, it must be said that the procedural approach adopted by the State of New York is in accord with my own views of the procedural setting.
It is clear that the record is complete. In order to remove any doubt about finality, I now expressly find that the trains in question, which provided passenger service between Chatham, New York and New York City, were "intercity" trains within the meaning of the Amtrak statute, and were not "commuter" trains. A declaratory judgment to that effect will be entered, and the papers filed on behalf of the State of New York in opposition to the Trustees' application for leave to discontinue the trains will be treated as an application for an injunction against such discontinuance. A final order will be entered, denying the requested injunction.
The Amtrak statute defines "intercity rail passenger service" as meaning
"--- all rail passenger service other than (A) commuter and other short-haul service in metropolitan and suburban areas, usually characterized by reduced fare, multiple-ride and commutation tickets, and by morning and evening peak period operations, and (B) [auto ferry service] /--" 45 U.S.C. § 502(5).
In an earlier proceeding, Penn Central Transportation Co. Discontinuance or Change in Service, 338 ICC 318, 326 (1971), the Commission announced certain criteria to be used in applying the statutory definition. These are:
"(1) The passenger service is primarily being used by patrons traveling on a regular basis either within a metropolitan area or between a metropolitan area and its suburbs;