IOWA CITY-MONTEZUMA RAILROAD SHIP. ASS'N v. United States

• Decision Date: 21 March 1972
• Docket Number: Civ. No. 10-273-C-2.
• Parties: IOWA CITY-MONTEZUMA RAILROAD SHIPPERS ASSOCIATION, a voluntary association, Petitioner, v. UNITED STATES of America et al., Respondents.
• Court: U.S. District Court — Southern District of Iowa

338 F. Supp. 1383

IOWA CITY-MONTEZUMA RAILROAD SHIPPERS ASSOCIATION, a voluntary association, Petitioner, v. UNITED STATES of America et al., Respondents.

Civ. No. 10-273-C-2.

United States District Court, S. D. Iowa, C. D.

February 22, 1972.

Supplemental Memorandum March 21, 1972.

COPYRIGHT MATERIAL OMITTED

James H. Malecki (Gislason, Alsop, Dosland & Hunter), New Ulm, Minn., Albion Young, Wellman, Iowa, Norton M. Hatlie, Navarre, Minn., for petitioner Iowa City-Montezuma Shippers' Assn.

Allen J. Donielson, U. S. Atty., Claude H. Freeman, Asst. U. S. Atty., S.D.Iowa, Des Moines, Iowa, L. Patrick Gray III, Asst. Atty. Gen., Harland F. Leathers, T. Scott Johnston, U. S. Dept. of Justice, Washington, D. C., for respondents United States, I.C.C. and Dept. of Transportation (Fritz R. Kahn, Hanford O'Hara, I.C.C., Washington, D. C., of counsel for respondent I.C.C.; Robert Lee Kessler, Federal Railroad Administration, Dept. of Transportation, Washington, D. C., of counsel for respondent Dept. of Transportation).

Daniel J. Fay, Stephen M. Morain, Asst. Commerce Counsels, Iowa State Commerce Comm., Des Moines, Iowa, for respondent Iowa State Commerce Comm.

B. A. Webster, J. H. Martin (Gamble Riepe, Martin, Webster & Fletcher), Des Moines, Iowa, D. C. McDevitt, Commerce Counsel, Chicago, Rock Island and Pacific Railroad Co., Chicago, Ill., for respondent Chicago, Rock Island and Pacific Railroad Co.

HANSON, Chief Judge.

This matter comes before the Court upon two motions to dismiss filed July 26, 1971, one by federal respondents, Interstate Commerce Commission ("ICC") and Department of Transportation ("DoT"), and the other by respondent Chicago, Rock Island and Pacific Railroad Co. ("Rock Island"). Respondent Iowa State Commerce Commission ("ISCC") has joined in and adopted federal respondents' motion.

The action sought herein to be dismissed is an action for relief in the nature of mandamus. The sole basis for jurisdiction alleged is the All Writs Statute, 28 U.S.C., Section 1651. Petitioner herein is an association of shippers formed to protest the abandonment of a railroad branch line operated by Rock Island from Hills to Montezuma, wholly within the State of Iowa. Abandonment proceedings are presently pending before the ICC.

In the instant cause, petitioner requests an order requiring the ICC, DoT, ISCC, or any of them, to order the Rock Island to maintain the Hills-Montezuma branch line in a safe and adequate condition pending the determination of the abandonment proceeding, or, alternately, an order requiring the railroad itself to maintain this line pending determination of the abandonment. Petitioner also requests an order requiring the ICC to keep or reopen its records in the abandonment proceeding and to permit petitioner discovery and the right of cross-examination therein.

Petitioner's sole alleged basis for jurisdiction is 28 U.S.C., Section 1651, which provides for relief in the nature of mandamus, notwithstanding that the writ per se was abolished by F.R.Civ.P. Rule 81(b). Relief in the nature of mandamus (hereinafter referred to simply as "mandamus") under Section 1651 must be a necessary or appropriate aid to jurisdiction otherwise conferred by other and original processes. Booker v. Arkansas, 380 F.2d 240 (8th Cir. 1967). It is therefore a traditional means of confining inferior tribunals to their prescribed jurisdiction, of compelling their exercise of authority when it is their duty to act, and of preventing usurpations of the judicial power. Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L. Ed. 1185 (1943).

Where mandamus is the only relief sought, and no other basis for jurisdiction is alleged, no jurisdiction is conferred, and there is no judicial power to issue orders in the nature of mandamus, Craig v. California, 376 F.2d 583 (7th Cir. 1967); Newark Morning Ledger Co. v. Republican Co., 188 F.Supp. 813 (D. Mass.1960); cf., also, Knapp v. Lake Shore Ry., 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870 (1905); Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803), even where the relief sought is for an alleged invasion of a constitutional right. Alley v. Chief, Finance Center, 167 F.Supp. 303 (D.Ind.1958). Such is the case here, for the only basis for jurisdiction alleged is 28 U.S.C., Section 1651.¹

The next test that an action for mandamus relief must meet is that there be no other available remedy, United States v. Duell, 172 U.S. 576, 43 L.Ed. 559 (1899); Technitrol, Inc. v. McManus, 405 F.2d 84 (8th Cir. 1968), or available remedies are wholly inadequate, Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969); United States v. Bank of Alexandria, F.Cas.No.14,514 (C.C.D.C. 1801). This means that all administrative remedies must have been exhausted, Sleeth v. Dairy Products Co., 228 F.2d 165 (4th Cir. 1955), or else the agency responsible for regulation of the proceeding must have refused to take jurisdiction, and have been plainly wrong in so refusing. United States ex rel. Kansas City Southern Ry. Co. v. I. C. C., 68 U.S.App.D.C. 396, 98 F.2d 268 (1938). In the instant case there is no allegation of exhaustion of remedies before any respondent herein, nor any indication that petitioner has ever made demand upon any federal or state agency for an order requiring respondent Rock Island to maintain the Hills-Montezuma line in a safe and adequate condition, with concomitant refusal by the agency to act.

The third test that must be met before mandamus relief can be given is that the case be extraordinary or exceptional, involving unique or compelling circumstances, perhaps a matter of extreme public importance. Bartsch v. Clarke, 293 F.2d 283 (4th Cir. 1961); Hydraulic Press Mfg. Co. v. Moore, 185 F.2d 800 (8th Cir. 1950). Petitioner herein does allege such circumstances as to the continued deterioration of the railroad, in Paragraph 4 of its complaint.

The next caveat, of particular relevance to petitioner's third requested order, is that mandamus cannot be invoked in lieu of an interlocutory appeal of any order which does not impair jurisdiction, Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953); Carr v. Donohoe, 201 F.2d 426 (8th Cir. 1953), save perhaps in extraordinary circumstances. Evans Electric Const. Co. v. McManus, 338 F.2d 952 (8th Cir. 1964). Usually, however, appeal must abide the fact and not be anticipated interlocutorily, for it is entirely possible that a complainant's position will be vindicated by the agency's final order. Cf. National Lawyer's Guild v. Brownell, 96 U.S.App.D.C. 252, 225 F. 2d 552 (1955), cert. den. 351 U.S. 927, 76 S.Ct. 778, 100 L.Ed. 1457 (1956). Here, any invasions of petitioner's rights are not so apparent or damning that the matters of discovery and cross-examination in the abandonment proceeding cannot abide a final order of the ICC. It is quite possible that that order will be favorable to petitioner, thus mooting the procedural question. If it is not, petitioner may then proceed to seek judicial review in the manner prescribed by 28 U.S.C., Section 1336,² without perhaps involving this Court in an idle ceremony, and without offending the precepts of Banker's Life & Cas. Co. v. Holland, supra, and U. S. Alkali Export Assn. v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945), which indicate that hardships resulting from waiting for a final administrative order are an immaterial consideration in determining whether a case is suitable for interlocutory review. Consequently, the Court must dismiss petitioner's action to the extent that it requests an order requiring the ICC to keep or reopen the record in the abandonment proceeding, and to permit discovery and cross-examination therein.

The fifth major requirement for relief in the nature of mandamus is that the act sought to be compelled is not discretionary, but is a ministerial duty, Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S.Ct. 752, 2 L.Ed. 2d 788 (1958); M'Intire v. Wood, 7 Cranch (11 U.S. 504, 3 L.Ed. 420 (1813), a clear and indisputable peremptory command to act. United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S.Ct. 343, 75 L.Ed. 1429 (1931). This duty must be plainly defined and completely free from doubt, Thomas v. Vinson, 80 U.S.App.D.C. 346, 153 F.2d 636 (1945). The burden is upon the party seeking mandamus relief to clearly establish that an action sought to be compelled is a ministerial duty, Albert v. U. S. District Court, 283 F.2d 61 (6th Cir. 1960); Hancock v. Laird, 415 F.2d 234 (9th Cir. 1969), and furthermore that he has a clear right to the performance of that duty. Kay Ferer, Inc. v. Hulen, 160 F.2d 146 (8th Cir. 1947).

An administrative agency such as the ICC, DoT, or ISCC can be compelled to exercise the power vested in it, or to take some action in some matter involving discretion where there is a clear duty to do so, although the nature of the action taken is beyond the purview of the court. Rural Electrification Administration v. Northern States Power Co., supra, note 1; Higginson v. Schoeneman, 89 U.S.App.D.C. 126, 190 F.2d 32 (1951). However, inaction on the part of an administrative agency may well be within the purview of agency discretion, and so not subject to mandamus, where responsibilities for a particular subject area have been entrusted to the agency without any plainly defined mandate to act, or where construction or application of a particular statute have been left to agency discretion. United States ex rel Girard Trust Co. v. Helvering, 301 U.S. 540, 57 S.Ct. 855, 81 L.Ed. 1272 (1937); Rural Electrification Administration v. Northern States Power Co., supra, note 1; Anderson v. McKay, 94 U.S.App.D.C. 11, 211 F.2d 798 (1954).

Here, the Court is unable to discern any clear and indisputable ministerial duty on the part of any respondent governmental agency as to any of the statutes cited by petitioner in its complaint, or any other. 49 U.S.C., Section 1(11),...