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IN RE PENN CENT. TRANSP. CO.

January 23, 1974

In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor. In re DISCONTINUANCE OF INTERCITY PASSENGER SERVICE. CITY OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA, et al., (Party Plaintiffs),
v.
George P. BAKER et al. T. W. PARKER, Commissioner of Transportation of the State of New York, v. PENN CENTRAL TRANSPORTATION COMPANY. COMMONWEALTH OF PENNSYLVANIA et al., Plaintiffs, v. George P. BAKER et al., Defendants



The opinion of the court was delivered by: FULLAM

Pursuant to the Rail Passenger Service Act of 1970, 45 U.S.C. § 501 et seq., the Debtor no longer provides, or is required to provide, intercity rail passenger service. Since May 1, 1971, all such service has been provided by Amtrak, by means of contracts entered into with various rail carriers, including the Debtor.

The procedural background is somewhat complicated. It will be reviewed here only to the extent that such review may help clarify precisely what is being decided.

 Before the Trustees had reached a final decision as to whether to participate in the Amtrak program, the Commonwealth of Pennsylvania and various other parties brought an action in the United States District Court for the Western District of Pennsylvania, seeking injunctive relief against the threatened discontinuance of certain trains. This Court, by Order No. 232, stayed this litigation, and enjoined all further litigation of issues relating to the Debtor's intercity passenger service, except such litigation as might be brought in this District. At the same time, in order to allay the fear that discontinuance of such service might be attempted in violation of the Amtrak statute, I also enjoined the Trustees from effecting any such discontinuance, except pursuant to an order of this Court entered after at least five days' notice.

 Thereafter, having entered into an approved contract with Amtrak, the Trustees petitioned this Court for leave to discontinue all intercity passenger service. Certain parties, principally the Commonwealth of Pennsylvania and its Public Utility Commission, the City of Philadelphia, the State of New York and the State of New Jersey, opposed the Trustees' request, in certain particulars hereinafter discussed. Concurrently, many of these same parties filed suit in this District, Civil Action Nos. 71-1002 and 71-1003, seeking to enjoin the Trustees from discontinuing certain trains. The cases were consolidated for hearing.

 The parties objecting to the discontinuances contended that the notices of proposed discontinuance, promulgated by the Trustees and scheduled to become effective on May 1, 1971, were premature, and could not be made effective on that date; and that the notices were not in compliance with the Amtrak statute. They further contended that certain service proposed to be discontinued by the Trustees was not "intercity" service within the meaning of the statute, and therefore could not be discontinued by the Trustees.

 On April 30, 1971, I filed an Opinion ( D.C., 329 F.Supp. 572) holding that the notices were timely and in accordance with the statute, and that the question of whether certain service was "intercity" or otherwise would be referred to the Interstate Commerce Commission for its recommendation and report. Thereafter, the ICC filed its recommendations and report, and the Commonwealth of Pennsylvania and other parties filed a separate action in this District, seeking "implementation" of the ICC "order." (C.A. 71-2301.) The State of New Jersey intervened, the Interstate Commerce Commission was brought upon the record, exceptions and motions to dismiss were filed, and extensive briefing followed.

 The particular services in question, and the present status of each, follows:

 
1. New York City to Chatham, New York. This was not included in the Amtrak contract. The ICC found that this was "intercity" rather than "commuter" service. With the approval of this Court (unnecessary under the statute, but required by the terms of the earlier Order (No. 232) of this Court), the Trustees discontinued this service at the end of the summer of 1971, and this Court's refusal to compel continuation was upheld on appeal, as equivalent to a denial of a preliminary injunction, In re Penn Central Transportation Co., appeal of State of New York, 457 F.2d 381 (3d Cir. 1972).
 
2. York, Pennsylvania Substituted Bus-for-Rail Service. The ICC concluded that this service was not within the terms of the Amtrak statute, which the Commission interpreted as applying only to intercity rail service, not substituted bus-for-rail service. This service is being operated at the present time.
 
3. The 600 Series of Trains Between Philadelphia and Harrisburg, Pennsylvania. This service is included in the Amtrak contract. However, the Commonwealth of Pennsylvania and other parties contend that this is really commuter service, and should be the responsibility of the Debtor, subject to discontinuance only with the approval of the Public Utilities Commission (or of the ICC under § 13 of the Interstate Commerce Act). The ICC report concluded that this is "back-to-back" commuter service, rather than "intercity" service.
 
4. The 200 Series of Trains Between Philadelphia and New York. This service is included in the Amtrak contract. The ICC report concludes that this is "commuter" service, rather than "intercity" service. The State of New Jersey contends that operation of these trains by Amtrak is in derogation of the rights of the State of New Jersey pursuant to certain contracts with the Debtor and others for commuter service in that State.

 I.

 It is important at the outset to emphasize certain distinctions apparent in the scheme of the Amtrak statute. The "basic system" designated by the Secretary of Transportation is "not reviewable in any court" ( § 202). Amtrak's right to operate trains constituting a part of the "basic system" cannot be questioned in any court, or in any administrative proceeding; conversely, Amtrak must continue to operate such trains unless and until it seeks and obtains the permission of the ICC to discontinue them. In addition to the "basic system," Amtrak has the right to operate other intercity passenger trains, on a more or less experimental basis. These "additional" or "excess" trains may be discontinued by Amtrak at any time, in its sole discretion. However, any train which is operated by Amtrak continuously for a period of two years or more automatically becomes part of the "basic system" and subject to ICC abandonment control

 The foregoing principles are applicable on the assumption that the trains in question are "intercity" trains. Beyond defining, in a rather imprecise way, what is meant by "intercity" passenger service, the statute is silent on such matters as: How and by whom is the determination to be made as to whether a particular train or group of trains constitute "intercity" or other service? Is this determination reviewable, and if so, where? What are the standards of review?

 The litigation which resulted in the recent decision of the Supreme Court in National Railroad Passenger Corporation v. National Association of Railroad Passengers, supra, provides some answers, and some clues to other answers, but does not completely and explicitly resolve the present controversies. Two related, but distinct, cases were before the Court of Appeals: one involved a discontinuance by Amtrak of certain intercity trains constituting "excess" service, rather than a part of the "basic system." This was the only case to reach the Supreme Court. The Court held that § 307 of the Amtrak statute, which authorizes the Attorney General to bring suit for violation of the statute, precludes all such litigation by other parties. In its simplest terms, the holding of the Court was that, by virtue of the Amtrak statute, no one other than the Attorney General has a cause of action against Amtrak or against any railroad, for violations of the statute or actions inconsistent with the provisions of the statute. The Court intimated that the same result would be reached on "standing" principles. The determination of the Court of Appeals that such suits could be maintained by private parties was reversed.

 The other case decided by the Court of Appeals, but not by the Supreme Court, was an attempt by private litigants to enjoin the proposed discontinuance of certain rail service which had not been assumed by Amtrak. Plaintiffs in that case asserted that the service in question was commuter in nature, and thus not governed by the Amtrak statute; whereas the railroad argued that it was "intercity" service and could properly be discontinued since it had not been assumed by Amtrak. The Court of Appeals held that the District Court had jurisdiction to determine this issue, and remanded the case for appropriate determination. The Court of Appeals expressed no view as to the merits, nor even as to the proper procedure to be followed in reaching a decision (i. e., whether through referral to the ICC, or by the Court independently).

 As mentioned above, this Court has referred the definitional issues to the Interstate Commerce Commission and has received the reports and findings of the Commission. This was done at the request of most of the parties, and without opposition from anyone. For this reason, the precise nature of the referral has never been specified, and the parties remain free to argue, as some of them do, that neither the ICC nor this Court has jurisdiction, and that the referral was improper, or that the findings and report of the Commission are merely advisory.

 II.

 In deciding that only the Attorney General could bring suit for infractions of the Amtrak statute, the Supreme Court relied not only upon the language of the statute (which it held would normally be interpreted to produce that result) but upon the legislative history, which, in the view of the Court, very clearly demonstrated the Congressional intent that, in order to salvage intercity rail passenger service, Amtrak must be free to use the streamlined procedures of the Amtrak statute in ridding itself of uneconomic lines. It was felt that the obvious purposes of the statute would be frustrated if Amtrak (and the railroads performing functions under the Amtrak statute) were subject to suit by private litigants.

 The precise legal issue which plaintiffs sought to raise in that case was whether Amtrak, by contracting with a wholly-owned subsidiary railroad, could relieve that subsidiary of its obligation to provide intercity rail passenger service, in the absence of a contract with the parent. Both the Court of Appeals and the Supreme Court viewed the case as challenging a termination of service pursuant to the Amtrak statute, rather than as ...


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