Tennessee Public Service Commission v. United States

• Decision Date: 11 October 1967
• Docket Number: Civ. A. C-67-249.
• Citation: 275 F. Supp. 87
• Parties: TENNESSEE PUBLIC SERVICE COMMISSION et al. v. UNITED STATES of America et al.
• Court: U.S. District Court — Western District of Tennessee

275 F. Supp. 87

TENNESSEE PUBLIC SERVICE COMMISSION et al. v. UNITED STATES of America et al.

Civ. A. C-67-249.

United States District Court W. D. Tennessee.

October 11, 1967.

Eugene W. Ward, Nashville, Tenn., for Tennessee Public Service Commission.

James L. Bomar, Jr., Shelbyville, Tenn., Troy W. Tomlin, Somerville, Tenn., for Town of Somerville, Oakland, Whiteville, and Counties of Fayette and Hardeman, Tenn.

Patrick Johnson, Sr., and Arthur J. Shea, Memphis, Tenn., Baker & Raley, Washington, D. C., of counsel, for City of Memphis.

Manny H. Smith, Washington, D. C., Thomas L. Robinson, U. S. Atty., Memphis, Tenn., for Interstate Commerce Commission and United States of America.

James W. Hoeland, Louisville, Ky., David M. Keeble, Nashville, Tenn., John B. Mack, Memphis, Tenn., for Louisville & Nashville R. Co.

OPINION AND ORDER

BAILEY BROWN, Chief Judge.

Plaintiffs, Tennessee Public Service Commission, City of Memphis, Towns of Somerville, Oakland and Whiteville, Tennessee, and Counties of Fayette and Hardeman, Tennessee, filed an action against the Interstate Commerce Commission and the United States of America on September 14, 1967, to obtain an injunction against and to have set aside a decision, certificate and order of the I. C. C. allowing the Louisville and Nashville Railroad Company to abandon 64.9 miles of one of its main lines of railroad between Jackson, Tennessee and Shell Plant, Tennessee, the latter being about nine miles east of Memphis. In general, it is the proposition of the L. & N., accepted by the I. C. C., that it can adequately service this area on its "parallel" main line to the west of this line. Contemporaneously, plaintiffs moved for a temporary restraining order, which was granted ex parte that day without requiring a bond. The L. & N. has intervened as a party defendant, and has filed a motion to dissolve the restraining order, or, in the alternative, to require a bond. The I. C. C. and the Government have joined in the L. & N.'s motion. The parties have filed briefs and argument has been heard.

We will first deal with the motion to dissolve and then deal with the motion to require a bond.

THE MOTION TO DISSOLVE

The defendants' first contention is that plaintiffs are guilty of improper delay amounting to laches in not filing this action until September 14. It appears that the order of the I.C.C. sought to be set aside, which adopted the order of the hearing examiner, was served on July 25, 1967, to be effective on August 14, and that thereafter the L. & N. filed tariffs, to be effective September 6, which omit rates for stations on the line involved and further that the L. & N. had made preparations to begin removal of the line. In response, plaintiffs point out: that on August 12, 1967, they filed with the I. C. C. a petition for reconsideration, which the I. C. C. rejected on the ground that under its Rules such a petition could not be entertained and that its order had become final; that such Rule was contained in a recent amendment of which plaintiffs were not aware; and that the order rejecting this petition was not served until August 25. Plaintiffs further point out that, since they are a state public service commission, two counties, and four municipalities, some time was required to obtain authority to file this action. Assuming, without deciding, that such laches would be a ground for dissolving the restraining order, we find that laches has not been shown.

Next, defendants contend that the restraining order should not have been issued without notice because the requirement of Rule 65(b), F.R.Civ.P., that applicant's attorney certify as to efforts to give notice and the reasons for not giving notice was not met. In response, plaintiffs rely on the provision in Rule 65(e) to the effect that: "These rules do not modify * * * Title 28, U.S.C., § 2284, relating to actions required by Act of Congress to be heard and determined by a district court of three judges"; they point out that they are proceeding under § 2284; and they point out that § 2284(3) provides: "In any such case in which an application for an interlocutory injunction is made, the district judge to whom the application is made may, at any time, grant a temporary restraining order to prevent irreparable damage." We conclude, first, that Rule 65(e) makes the aforesaid provision of Rule 65(b), requiring a showing of an excuse for failure to give notice, inapplicable to this action under § 2284. No reported case has been cited construing § 2284 with respect to the necessity for notice or an excuse for failure to give notice. We further conclude, however, that, since § 2284(3) authorizes this court to issue a temporary restraining order "at any time" and makes no requirement as to notice, no notice or excuse for lack of notice is required.

Next, defendants contend that the restraining order should be dissolved because plaintiffs have not shown the likelihood of their ultimately prevailing with the required degree of certainty. It should be pointed out at the outset that plaintiffs here, in attacking this order of the I. C. C., have a heavy laboring oar. (See, for example, Illinois Central Railroad Co. et al. v. Norfolk & Western Railway Co. et al., 385 U.S. 57, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966). and United States v. Pierce etc. Inc., 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821 (1945)). With this burden, a plaintiff who is attacking an I. C. C. order would practically never be able to obtain a restraining order if, as defendants here contend, it must be shown, on the front end, that plaintiff enjoys a high probability, or even a probability, of ultimate success. Moreover, if it is necessary in the instant case, in order to determine plaintiffs' prospects of ultimate success, that we examine the transcript of the record of the proceedings before the I. C. C., this would be a matter of considerable difficulty at this time, in view of the probable size of the record, even if it were now available, which it is not. It was such considerations as these that caused Judge Peck in Cincinnati etc. Railway Co. v. United States, 220 F. Supp. 46 (S.D.Ohio 1963) to hold, with which we agree, that it is sufficient if a "reasonable possibility" of success is shown. We find, from the...