Long Island Rail Road Company v. United States

• Citation: 193 F. Supp. 795
• Decision Date: 20 April 1961
• Docket Number: Civ. No. 61 C-145.
• Parties: LONG ISLAND RAIL ROAD COMPANY, Plaintiff, v. UNITED STATES of America, Defendant, Interstate Commerce Commission and The New York, Chicago and St. Louis Railroad Company, Intervening Defendants.
• Court: U.S. District Court — Eastern District of New York

193 F. Supp. 795

LONG ISLAND RAIL ROAD COMPANY, Plaintiff, v. UNITED STATES of America, Defendant Interstate Commerce Commission and The New York, Chicago and St. Louis Railroad Company, Intervening Defendants.

Civ. No. 61 C-145.

United States District Court E. D. New York.

April 20, 1961.

Otto M. Buerger, Jamaica, N. Y. (Richard H. Stokes, New York City, of counsel), for plaintiff.

B. Franklin Taylor, Jr., Assoc. Gen. Counsel, Interstate Commerce Commission, Washington, D. C. (Lee Loevinger, Asst. Atty Gen., Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., John H. D. Wigger, Atty., Dept. of Justice, and Robert W. Ginnane, Gen. Counsel, Interstate Commerce Commission, Washington, D. C., on the brief, for defendants the United States and Interstate Commerce Commission).

Clark, Carr & Ellis, New York City (Kemper A. Dobbins, Cleveland, Ohio, of counsel), for defendant New York, Chicago and St. Louis R. Co.

Before FRIENDLY, Circuit Judge, BRUCHHAUSEN, Chief Judge, and RAYFIEL, District Judge.

FRIENDLY, Circuit Judge.

The Long Island Rail Road Company seeks to enjoin an order of the Interstate Commerce Commission, dated October 7, 1960, which intiated an investigation of a routing restriction in a tariff and suspended the restriction in the meanwhile, and also various procedural orders entered thereafter. The Commission and The New York, Chicago and St. Louis Railroad Company, better known as the Nickel Plate, have intervened as defendants. The action has been submitted on the prayers for both temporary and final relief. We hold that we lack jurisdiction to review the procedural orders and that the Long Island has not met the exceedingly stringent standards required to warrant judicial interference with a suspension order.

The controversy concerns rates for the transportation of "partitions, other than rolling" from Cleveland, Ohio, to New York, N. Y. Until the summer of 1960 these moved under a class rate of $1.40 per cwt. This was available to New York, N. Y. stations on the Long Island by a variety of routings including one over the Nickel Plate and the Lackawanna. On July 14, 1960, the Chairman of the General Freight Committee-Eastern Railroads submitted to the carriers a proposal for a reduced commodity rate of $1.37 per cwt. from Cleveland to New York in order to meet truck competition. The suggested routing was "Class rate routes". The proposal stated that in the absence of objection within 20 days "the views of all members will be recorded in the affirmative and an announcement will be made accordingly." The Long Island advised the Committee that, as applied to its stations, routing would be subject to individual concurrence. Only the Pennsylvania having requested and received such a concurrence, the Traffic Executive Association-Eastern Railroads as agent published Supplement 127 to Tariff I.C.C. C-17, effective Oct. 10, 1960, Item 8536 of which provided for the $1.37 rate, with a restriction reading as follows:

"When for account of the L. I., will only apply when routed via PRR, Greenville Piers, N. J. or Jersey City, N. J. Float—Long Island City (New York), N. Y., L. I."

But for this exception, the $1.37 commodity rate would have been subject to the general provision, in Item 19,000 of Tariff C-17, that all rates "apply by all routes made by the use of the lines of any of the carriers parties to this tariff"; the effect of the restriction was that, as regards Long Island stations, the $1.37 rate from Cleveland would apply only via the Pennsylvania and all other routings would continue to carry the $1.40 rate. Hence, as a practical matter, partitions from plants on the Nickel Plate in Cleveland destined to New York stations on the Long Island would move over the Pennsylvania, with the Nickel Plate receiving only a switching charge absorbed out of the Pennsylvania's division for the line haul.

The Nickel Plate petitioned the Commission to suspend the quoted restriction; the Commission's Board of Suspension voted against this. The Nickel Plate then appealed to Division 2 and formally requested the Long Island for a concurrence. The concurrence was refused but the appeal succeeded. On Oct. 7, 1960, the Commission issued an order instituting an investigation into the lawfulness of the routing restriction and suspending this until May 9, 1961, the maximum period permitted by 49 U.S.C.A. § 15(7); the portion of this order relating to suspension is here sought to be annulled. There followed a barrage of letters, memoranda, petitions, and replies, of which it is unnecessary to say anything save that they resulted in two other orders, also here sought to be reviewed, one setting the case for expedited hearing "under modified procedure", with the Long Island directed to file an opening statement of facts and argument, and the other denying a petition for reconsideration both as the petition sought a vacating of the suspension order and as it requested that the burden of proof be cast upon the protestant, the Nickel Plate, rather than on the Long Island.

The complaint was filed in this court on Feb. 23, 1961, and Judge Rayfiel issued an order temporarily restraining the Commission from proceeding or requiring the Long Island to proceed in the investigation and suspension proceeding. The parties later agreed that the restraint should continue until determination of this action. A court of three judges was convened, 28 U.S.C. §§ 2321-2325; although the court has been ready to hear the parties at any time, argument was presented only on April 7, 1961.

We can readily dispose of so much of the complaint as asks us to set aside the Commission's ruling that the burden of proof was on the Long Island rather than the Nickel Plate—this being the only attack on the two later orders that is pressed. This attack falls within the many decisions that such a procedural direction is not an "order" within 28 U.S.C. §§ 1336 and 1398, the modern embodiment of the Urgent Deficiencies Act, 38 Stat. 208, 219 (1913), 28 U.S.C. §§ 2321-2325, or other statutes of like tenor, but may be considered only upon review of further agency action. It suffices to cite United States v. Illinois Central R. Co., 1917, 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007; F. P. C. v. Metropolitan Edison Co., 1938, 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408; Eastern Utilities Associates v. S. E. C., 1 Cir., 1947, 162 F. 2d 385; and, particularly, United Gas Pipe Line Co. v. F. P. C., 3 Cir., 1953, 206 F.2d 842.

Defendants contend the same principle deprives us of jurisdiction to review the suspension order. Conceding that a court may not inquire into the wisdom of such an order, the Long Island insists there is jurisdiction where the Commission is alleged to have failed to follow required procedures, or to have exceeded its statutory powers as is claimed here. The threshold issue is whether courts have even this limited power.

Numerous decisions, both before and after the demise of the "negative order" doctrine in Rochester Telephone Corp. v. United States, 1939, 307 U.S. 125, 59 S. Ct. 754, 83 L.Ed. 1147, have held refusals by the Commission or other regulatory agencies to exercise their suspension powers to be unreviewable. A few are M. C. Kiser Co. v. Central of Georgia Ry. Co., D.C.S.D.Ga.1916, 236 F. 573, affirmed 5 Cir., 1917, 239 F. 718; National Water Carriers Ass'n v. United States, D.C.S.D.N.Y.1954, 126 F.Supp. 87; Luckenbach S.S. Co. v. United States, D.C.D.Del.1959, 179 F.Supp. 605, judgment vacated as moot 1960, 364 U.S. 280, 80 S.Ct. 611, 4 L.Ed.2d 1719; Bison S.S. Corp. v. United States, D.C.N.D.Ohio 1960, 182 F.Supp. 63; but see Isbrandtsen Co. v. United States, 1954, 93 U.S. App.D.C. 293, 211 F.2d 51, certiorari denied Japan Atlantic and Gulf Conference v. United States, 1954, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124. Where the Commission has issued a suspension order and then vacated it, a slight preponderance of authority supports limited reviewability of the second order. Amarillo-Borger Express, Inc. v. United States, D.C.N.D.Tex.1956, 138 F.Supp. 411, judgment vacated as moot, 1957, 352 U.S. 1028, 77 S.Ct. 594, 1 L.Ed.2d 598; Long Island R.R. Co. v. United States, D.C.E.D.N.Y.1956, 140 F.Supp. 823; Dixie Carriers, Inc. v. United States, D. C.S.D.Tex.1956, 143 F.Supp. 844; Atlantic Coast Line R.R. Co. v. United States, D.C.E.D.Va.1958, 173 F.Supp. 871. On the other hand, Judge McGuire in the District of Columbia has refused to convene a three judge court to review such an order, National Motor Freight Traffic Assn., Inc. v. United States, Civil No. 1689-60, (unreported); a three judge court appears to have dismissed a complaint seeking such relief in Helm's Express, Inc. v. United States, Civil No. 17904 (W.D.Pa.1959) (unreported); and a district judge who was a member of that court has dismissed a complaint in a similar case, American Commercial Barge Line Co. v. United States, Civil No. 60-751 (W.D.Pa.) (unreported). The writer of this opinion must confess some difficulty in finding satisfactory grounds for reconciling the decisions that the vacating of a suspension order is reviewable even on the limited basis suggested in the cases so holding, with the generally accepted view that a refusal to suspend is not (save perhaps when the latter rests on an erroneous belief as to lack of power), see Swan, C. J., dissenting in Long Island R. R. Co. v. United States, supra, 140 F.Supp. at page 828. Still, so long as that decision is the law of this district, it tends to support the thesis that a suspension order, which in some ways presents a stronger case for reviewability, is not wholly immune from judicial scrutiny.

On the specific issue of the jurisdiction of the courts to review suspension orders, the authorities are divided. The Government, resisting reviewability, cites Manhattan Transit Co. v. United States, D.C.D.Mass.1938, 24 F.Supp. 174; Ferguson-Steere Motor Co. v. United States, D.C.N.D.Tex.1954, 126...