CITY OF CHICAGO v. UNITED STATES

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Argument of Gordon P. Macdougall

Chief Justice Warren E. Burger: Number 101, City of Chicago against United States and 102, same parties.

Mr. MacDougall you may proceed whenever you're ready.

Mr. Gordon P. Macdougall: Mr. Chief Justice, may it please the Court.

I appear for the appellants and my argument time is being shared by counsel for the United States and the Interstate Commerce Commission because the Government has aligned itself in this case on appellant's side.

These are two direct appeals from two cases heard together by a three-judge District Court for the Northern District of Illinois.

The two cases were suits to review the action of the Interstate Commerce Commission in allowing to be discontinued a portion of one passenger train and all of another passenger trains.

The partial discontinuance involved the Chicago to Evansville, Indiana segment of the Georgian train which operates from Chicago to Atlanta.

A complete discontinuance was the Hummingbird train which operates from Cincinnati to New Orleans.

The interconnection is that national.

The appellants have a substantial interest in the service and these are the only trains, the only daily trains from Chicago to Terre, Vincennes, Evansville, Chattanooga, Atlanta, Mobile, and are the only daily service from Chicago to Nashville and Montgomery, Alabama.

The court below dismissed both of the actions for lack of jurisdictions.

The Court said that Congress intended to deny judicial review to the public because when the carrier prevails at the ICC, the order is one discontinue the investigation.

On the other hand if the railroad loses that the ICC, the order is one requiring the continued train operations and the railroad can go to court.

And we think this is unfair and the reason we think it's legally unfair is that Congress never intended the unfair result.

And there's nothing in the legislative history to suggest that the public can't go to court but the railroads can go to court.

Justice Hugo L. Black: I understand, what you mean is you think it's illegal?

Mr. Gordon P. Macdougall: Well, the question we have --

Justice Hugo L. Black: You have reason to save question about unfairness.

Mr. Gordon P. Macdougall: I just thought I mentioned the word unfairness since it's come up today.

Two of the lower court decisions which we rely on did use the word unfair and said that Congress could not be presumed to have intended such an unfair result.

Justice Hugo L. Black: Well, that's quite a different argument.

Mr. Gordon P. Macdougall: The appellants here today are seven regulatory commissions, one state, nine communities, three labor organizations, and one railroad passenger association.

We are supported an amicus brief by the national association of regulatory commissioners until the commissioners representing all of the state commissions for the 50 states, the Virgin Islands, Puerto Rico, and the District of Columbia.

And the appellees are the Chicago and East Illinois Railroad and the Louisville and Nashville Railroad.

The sole issue before the Court in our judgment is whether Congress did intend to deny judicial review to the public while granting such judicial review to the railroads.

There's no question of standing involved, eight district courts have expressly passed upon the issue.

Two early decisions in 1965, held it was no judicial review for the public and all of the decisions since then have held to the opposite that there is judicial review and one of these other decisions was granted by a three-judge court for the same Northern District of Illinois after the judges below were entered.

Now the statute we have here is Section 13 (a) (1), of the Interstate Commerce Act which became a law in 1958.

And contrary to the opinion below, there is nothing in the language or the legislative history of 13 (a) (1) to suggest that Congress intended to deny judicial review.

The general framework of the Interstate Commerce Act is that decisions of the Commission are subject to judicial review.

There's nothing unusual about an order discontinuing and investigation at the Commission.

This is what to do and virtually all of the rate cases and those decisions have been subject to review and reviewed by this Court.

Ever since the Rochester decision in 1939 and Administrative Procedure Act in 1946, the Commission institutes an investigation of a freight rate, the fines unlawful, the order is one discontinued investigation, exactly the one which appellants were denied judicial review for here.

Now the lower court based its -- primarily based its opinion on the wording of the statute and they said that where the Railroad files a notice, and elects to supersede state jurisdiction, the ICC has authority in that 30-day notice period to either institute investigation or not.

It doesn't institute an investigation.

The lower court felt that the train off becomes effective pursuant to the statute.

Justice Potter Stewart: And does that -- do you concede that that if no investigation is initiated by the Commission?

Mr. Gordon P. Macdougall: No, I don't think that that --

Justice Potter Stewart: Within this period, then do you concede that that's the end of it?

Mr. Gordon P. Macdougall: No, and I don't think so.

In fact, --

Justice Potter Stewart: I thought we decided that in the New Jersey case in 358 U.S.

Mr. Gordon P. Macdougall: Right.

In the New Jersey case, that was a per curiam affirmance.

Justice Potter Stewart: Yes, but nonetheless it was a decision on the merits.

Mr. Gordon P. Macdougall: Well, we don't first to answer question, we don't concede it and the Government in its brief does not consider.

They say --

Justice Potter Stewart: They don't?

Mr. Gordon P. Macdougall: No, I think they use the word patent abuse.

They said the absent patent abuse.

There could be situations I think where the discretion of the Commission is subject to abuse and we can go to court.

The author of the opinion in New Jersey below did recognize such a situation later.

Justice Potter Stewart: And in that case?

Mr. Gordon P. Macdougall: In that case, he was --

Justice Potter Stewart: Work type.

Mr. Gordon P. Macdougall: That's right it was work type.

The next case that come along at 200 F. Supp where you had another type situation.

He did because there, the question was whether the ICC had jurisdiction at all.

Justice Potter Stewart: Did that case come here?

Mr. Gordon P. Macdougall: And that case, did come here, he reversed on other grounds.

The New Jersey case was a ferry case.

Justice Potter Stewart: Yes.

Mr. Gordon P. Macdougall: And before Section 1381 --

Justice Potter Stewart: I thought that was a West Bank at the Hudson District?

Mr. Gordon P. Macdougall: Right.

It was a ferry across the -- no, it was a person of a ferry from across the harbor there and the Commission had initially before 13 (a) (1) was passed had held that the ferry was unwarranted.

And that was offset in Court on the grounds that it was not an entire abandonment of line.

You could have at least scholars across the harbor or something, so Congress passed 13 (a) (1), the carrier then invoked 13 (a) (1) and the Commission declined to institute an investigation and in its notice said one of the reasons is the prior report the Board investigated this.

And that's the State of New Jersey case and I don't think that the courts are precluded from judicial review in this 30-day period.

It depends on the abuse of discretion and there she could have a bad enough case, corruption at the Commission or something like that possibly it had judicial review.

Justice Potter Stewart: But your argument there if I'm mistaken in thinking that your argument in no way depends upon that issue?

Mr. Gordon P. Macdougall: That's right.

This was given great weight by the court below.

They use this non-reviewability concept based on State of New Jersey and said well since that -- since the train would come off it the end of 30 days without --

Justice Potter Stewart: That's your opponent argument but your argument in no way depend -- you could concede as I understand your argument at least that failure of the Commission to hold a hearing and then discontinuance of the service is non-reviewable and still make basically the argument you are making.

Mr. Gordon P. Macdougall: Yes, because --

Justice Potter Stewart: Which is the mutuality argument and --

Mr. Gordon P. Macdougall: Right and I point out that Section 1336 (a) of Title 28 says that you can go to court for any order of the Interstate Commerce Commission and the question is whether in order to discontinue an investigation is such an order now.

Whether Commission doesn't investigate a case, there's no order.

There's a notice.

There is no such thing as an order issue.

And that really is our case in a nutshell.

The second reason given by the court below was that if you allowed judicial review, you'll have delays.

And there's a congressional purpose to stop the delays that were occurring at the state commission level.

And Congress set up a dual system.

Most train of todays are as decided not to cite it before the state commissions not the ICC.

Section 13 (a) (1) is not self-executing statutes.

Not self-implementing a carrier has to file a notice and that acts supersedes a state jurisdiction.

Therefore, we have a situation where this statute has been set up and Congress answered the delay problem by imposing a four-month limitation upon the Interstate Commerce Commission.

That's where they answer the delay you have judicial review of state commissions and there's no reason why you can't have judicial review of ICC decisions.

The Louisville and Nashville on brief suggest that if you have judicial review, you're going to have injunctions.

Our answer to that is that that's alright but that issue is not before this Court because the Louisville and Nashville stop the train at Birmingham and an application for stay was denied so the questions of injunctions are stays pendente lite are not before the court.

Now the sole issue is whether there is ultimate judicial review and as an important case to Chicago and the Southern States involved and to all the regulatory commissions and we ask that the judgments below be reversed.

Chief Justice Warren E. Burger: Mr. Shapiro.

Argument of Howard E. Shapiro

Mr. Howard E. Shapiro: Mr. Chief Justice and may it please the Court.

The United States and the Interstate Commerce Commission, although defendants below supports the rights of the appellants to obtain judicial review of the Commission's decision permitting discontinuance of the trains involved in this case.

We do so for two legal reasons.

First, that under the criteria applicable to review of administrative actions, as incorporated in the Administrative Procedure Act the Commission's decisions in these cases represent agency action which is reviewable.

And second, nothing in the history of the statute or in its text indicates a congressional intent to foreclose judicial review that would otherwise be available.

Now the Commission's decision in these two cases --

Justice Byron R. White: I thought you argued Congress intended to put up within the discretion of the agency hence, accepted from review?

Mr. Howard E. Shapiro: No, Your Honor, I don't think that Congress did intend to put this --

Justice Byron R. White: Well, what about the decision to investigate it all.

Mr. Howard E. Shapiro: The decision to investigate it all rest on a slightly different basis.

Justice Byron R. White: Well that is within the discretion of the agency?

Mr. Howard E. Shapiro: That is within the discretion of the agency.

Justice Byron R. White: Non-reviewable.

Mr. Howard E. Shapiro: And is non-reviewable.

Justice Byron R. White: So you agree with the New Jersey case?

Mr. Howard E. Shapiro: We agree with the New Jersey case.

Justice Byron R. White: But once you start on taking investigation.

Mr. Howard E. Shapiro: Once an investigation is under your can't --

Justice William J. Brennan: They can't even though you discontinue it?

Even though you don't follow through but just as you did here as I understand it, didn't you?

Enter an order of this (Inaudible)?

Mr. Howard E. Shapiro: Now let me turn to that order because I think that's really the heart of our problem here.

Justice Byron R. White: There wouldn't have been any need for an order, they can just quit over time, right?

Mr. Howard E. Shapiro: That's right.

If Your Honors will look in the record at page 41 and at page 67, you'll see the two basic orders that the Commission entered here.

Now those orders were entered after a full hearing.

Justice William J. Brennan: What's the second page Mr. Shapiro?

Mr. Howard E. Shapiro: 67, Your Honor.

Justice William J. Brennan: Thank you.

Mr. Howard E. Shapiro: Those orders were entered after a full hearing on the merits.

Incidentally that is the only kind of investigation the Commission can give in this county under 13 (a) (1) if it is going to have power to order the railroad to continue the train.

It cannot order the railroad to continue the train without conducting a hearing.

So once it opens an investigation, there has to be a full hearing.

Now what it does --

Justice William J. Brennan: Oh!

You have to go right through it.

Can't you stop it in the middle?

Mr. Howard E. Shapiro: Oh!

It is a conceivable railroad --

Justice William J. Brennan: And if you did then the Railroad simply discontinue the challenge?

Mr. Howard E. Shapiro: The Commission – it is conceivable the Commission might find that it opened its investigation improvidently.

Justice William J. Brennan: I see.

Mr. Howard E. Shapiro: But in this situation and in most situations it goes all the way through with the full administrative hearing in which it applies the substantive standard of Section 13 (a) (1).

Justice William J. Brennan: Do you think maybe there may be some other situations besides opening decision to open the hearing where review wouldn't be have?

But if they go this far, in any way, there should be a review?

Mr. Howard E. Shapiro: Yes, Your Honor.

What they do as the orders reflect at pages 41 and 67, is make findings of fact and conclusions which are incorporated into the Commission's order.

Justice William O. Douglas: What would be the judicial remedy to continue the investigation?

Mr. Howard E. Shapiro: The judicial remedy for?

Justice William O. Douglas: Suppose the court thought the Commission was wrong assume that it is reviewable what would be the judicial remedy?

Mr. Howard E. Shapiro: To set aside the Commission's order and to ban the case to the Commission --

Justice William O. Douglas: To continue the investigation?

Mr. Howard E. Shapiro: -- and in effect to be discontinuing those --

Justice William O. Douglas: Has he ordered any discontinuance?

They just stop then the investigation?

Mr. Howard E. Shapiro: The Commission would have to reopen the matter and to make a redetermination looking toward a direction to the railroad --

Justice William O. Douglas: Start anew and renew the investigation?

Mr. Howard E. Shapiro: Renew the investigation and -- cause if the court sets aside the Commission's decision.

Justice William O. Douglas: Well, let's start.

I'm a little confused.

I gather for example in this instance what happened was the formal order is of discontinuing the investigation.

That I take it means that the railroad then is free to go ahead with its discontinuance of the train.

Mr. Howard E. Shapiro: But the discontinuance if I can get back to these two orders, the discontinuance is based upon the commission's findings of fact that --

Justice William O. Douglas: I understand that.

Mr. Howard E. Shapiro: And those findings in fact apply to substantive standards of the act.

Those substantive --

Justice William J. Brennan: I understand that but what I'm trying to get at is on judicial review, of this order, as I understand it, a few of the court disagree with the Commission's discontinuance of the investigation.

One is there left except that when it comes back to the Commission, the Commission orders the Railroad to continue the service.

Mr. Howard E. Shapiro: That is exactly what would happen.

Justice William J. Brennan: That's all that will happen.

There'll be no more hearings or anything.

Mr. Howard E. Shapiro: That would depend on the nature of the remand.

Presumably if the Commission was found that there was no substantial evidence to support the decision or apply the wrong legal standard, then the Railroad would have to -- the Commission would have to direct the Railroad to continue the train in effect for another year which is what the statute would provide.

So that what we've got is an order here which does more than just discontinue the investigation.

It makes a substantive determination.

And that substantive determination has a substantial impact on the communities affected and because of that impact it amounts to a reviewable order.

Justice William J. Brennan: Well, I think if you think then that as soon as they started an investigation, the standards of the Act take over.

And that it has to be consistent with the public interest for the Commission would permit the change to be discontinued.

Mr. Howard E. Shapiro: That is correct.

What the Commission has to decide --

Justice William J. Brennan: Although the Act really puts the standard on only in the event they want to order the trains to be continued.

Mr. Howard E. Shapiro: Well in determining whether they should be investigation of course, they have to consider the standards of the Act.

But there's more to it.

When an agency is going to decide whether or not to investigate something, not only is it considering the substantive standards involved, it also has to make other to take into account other considerations, its resources, the situation, the importance of the termination to the area affected and so on.

Justice William J. Brennan: But tell me this Mr. Shapiro, I gather that Congress enacted this law as I recall it out of some impatience with the delays in getting trains to discontinue, was it?

Mr. Howard E. Shapiro: That is correct.

Justice William J. Brennan: Where properly railroad should be allowed to discontinue service they were all tied up with the state and other Commission hearings and everything else, and sometimes years went on before they succeeded, is that it?

Mr. Howard E. Shapiro: That is the purpose of the statute and that's what the Congress certainly --.

Justice William J. Brennan: Well, that's what the Congress is concerned.

Well, certainly, the statute contemplated some kind of summary procedure isn't it?

Mr. Howard E. Shapiro: It contemplated an expedited procedure not necessarily a summary one, that's why they proposed a four months limit.

Justice William J. Brennan: Well, isn't it summary to the extent if the Commission decides not to investigate as I understand it?

What was held in the New Jersey case is sound.

Namely that's not judicially reviewable.

That ends the whole business and the railroad discontinued the service.

Mr. Howard E. Shapiro: Yes, it does.

And the reason it does Your Honor is because under the criteria governing judicial review in the Administrative Procedure Act the decision whether to open an investigation or not is committed to the Agency's discretion and hence is not reviewable, but once it has taken agency action which has a substantial impact on people who are protesting that action and who are affected by it then there is a right of review.

Justice William J. Brennan: And then of course the other thing is that you got only four months back when you do investigate them.

Mr. Howard E. Shapiro: The Commission can take more than four months but its suspension of the Railroad's discontinuance.

Justice William J. Brennan: Only four?

Mr. Howard E. Shapiro: Its only four months and the Commission endeavors to wind this proceedings up rapidly --

Justice William J. Brennan: None of those things that's unfair, is it?

Mr. Howard E. Shapiro: It boils down in a sense to a fairness question.

I'd say only that on the law what you got here is a declaratory order in effect.

Of the kind that was used in the Frozen Food Express case, and there, the Court held that an order would simply have the effect of declaring what certain rights -- a Commission order declaring certain rights under the agricultural exemption to the law was said to be reviewable.

Now that order I might say in the Frozen Food Express case contained the same language that we have in this case.

It made -- the order made certain findings of -- the Commission made certain findings, it incorporated those findings and its order by reference and it said the investigation is discontinued.

There's nothing magic in that formula, well, that's just something the Commission says all the time.

It says it in rate proceedings as Mr. MacDougall pointed it out.

What we've got here it seems to the Government is just a disregard of this Court's decision in Rochester Telephone Corporation against United States.

Here we have people who go into the Commission and protest the discontinuance of a train.

They are asking the Commission to order something.

Order the continuance of that train.

They are denied that order.

When they are denied in order, they have a reviewable situation.

And in Rochester Telephone, this Court said, "In order of the Commission dismissing a complaint on the merits and maintaining the status quo, is an exercise of administrative function no more and no less than an order directing some change in status."

And the Court held that kind of an order to be reviewable in Rochester and that's all we got here.

Now the lower courts have relied particularly on United States against Los Angeles Railway Company.

The granddaddy of this line of cases that says that these things aren't reviewable, is it State of Minnesota against United States to Minnesota Court decision which pick up the Los Angeles case, Los Angeles case involved a valuation order, and Justice Brandeis for this Court said that this order which simply declares what the value of the Railroads property is not a reviewable order.

Because nothing happens as a result but nobody's ordered to do anything and nobody is affected by it anyway.

Well, this Court held only in that case that the valuation order since it didn't affect anything was not right for review.

The impact of that valuation order would be felt when and if the Commission did something on the basis of it.

So the Los Angeles case is only a ripeness case.

And certainly not a basis for denying review in this kind of situation where I don't think there's any doubt that there's a direct impact which makes the case right for review.

Now we've mentioned briefly the legislative history.

The desire to expedite the discontinuance of trains to avoid the delays that occurred in the state proceedings, now the desire for speed, the desire for expedition is not inconsistent with judicial review.

And judicial review doesn't mean that in every case, a train whose discontinuance is permitted by the Commission will be kept in operation by the courts.

Out of some 147 discontinuances, after investigation since the Commission or since the statute was adopted, I think there have been only six or I think it's nine, now there have been three more.

There had only been nine cases in which temporary relief has been granted pending judicial review.

And of course, whether temporary relief is going to be granted at all in any of these cases and that's really what the Railroads are afraid of, is a matter of the kind of showing made by the plaintiff's in the case.

You don't get preliminary injunctions as a matter of course from three-judge courts.

The Urgent Deficiencies Act contemplates that the courts are going to act with expedition.

And the real issue is expedition in the review process not denying review altogether.

Now the only other two grounds that I relied on to deny review are first that there are some difference in the substantive standard between 13 (a) (1) which is the -- which governs interstate trains and 13 (a) (2) which governs intrastate trains.

The Railroad seemed to concede that under 13 (a) (2) there is judicial review.

But the answer to that is that this Court has said in Southern Railway Company against North Carolina that the substantive standards are the same and in fact if you look at them although there are some slight word in differences it amounts to the same thing.

Public convenience and well does the public convenience and necessity hereof require the continuance of the train.

Will it unduly burden interstate commerce?

I've mentioned we've discussed, I think at some length the other reason this a fortiori argument that if you open an investigation or if you don't open an investigation, it has the same effect as if you did open an investigation.

They are different because the standards for review are different.

I think the best analogy one can give is the situation in which the general counsel at the NLRB issues a complaint.

Now, his decision to issue a complaint or not issue a complaint is a matter of his discretion.

It's not reviewable.

But if he issues a complaint and the NLRB acts on that complaint, that is judicially reviewable.

For these reasons and the unfairness, of the standard the railroads are arguing which says that commuters and communities are not entitled to judicial review but railroads are.

We think the decision of the court below is wrong.

Chief Justice Warren E. Burger: Mr. Hoeland.

Argument of James W. Hoeland

Mr. James W. Hoeland: Mr. Chief Justice, may it please the Court.

Section 13 (a) (1) of the Interstate Commerce Act is unique among the various provisions of the Act.

And that the authority to discontinue interstate passenger trains comes directly from the statute and not from any action of the Interstate Commerce Commission.

It was passed by Congress to meet a pressing problem to enable Railroads to promptly and effectively remove unneeded and not used passenger trains from their system.

And we submit respectfully that the concept of judicial review will frustrate the very intent that under which Congress enact Section 13 (a) (1).

Section 13 (a) (1) is self-implementing.

And it grants to the carrier upon posting of a 30-day notice the right to discontinue the train that in the Interstate Commerce Commission need do nothing.

The statute applies in 30 days of trains go off.

Now if the Commission orders an investigation, they must notify the carriers at least 10 days before the train is to stop.

They don't do that.

The train goes off at the end of 30 days.

Then the effect of the 30-day or the investigation is to postpone for an additional four-month period the time within which the railroads are authorize by statute to discontinue the trains.

Now the investigation --

Chief Justice Warren E. Burger: What happens Mr. Hoeland if the hearing proceeds and the decision is not to stop.

Not to stop, is that subject to judicial review?

Mr. James W. Hoeland: It is indeed Your Honor because the Interstate Commerce Commission can prevent the discontinuance of an interstate train only on the finding by the Commission that a public need exist for the train and that it is not an undue burden on interstate or foreign commerce for the train to be continued.

Now this is the only order that can be issued in an investigation proceeding.

Their discontinuance although they label it in order, the Commission labels it in order is not in fact an order because the Railroads are simply taking advantage of what the statute grants them.

The right to discontinue the notice or order as the Commission calls it is simply a means of notifying the people who participated in the proceeding as to what the Commission has done with the case.

If they can't make the specific statutory findings and both of them, then there is no basis under which the railroad can be required to keep the trains on for a period of maximum period of one year.

In that regard, there is a great difference between the provisions of Section 13 (a) (1) and Section 13 (a) (2) of the Interstate Commerce Act.

A railroad which wants to take off an intrastate passenger train must first proceed before the state regulatory body.

If that state does nothing within a 120 days or acts unfavorably within that period they then have the right to petition of the Interstate Commerce Commission and seek authority from the Commission.

This isn't a matter of authority coming from the statute.

This authority comes from the Commission and the Railroad has the burden of meeting both of the statutory standards.

In order to discontinue an intrastate train by contrast, the parties other than the Commission must find rather that both public need requires continued operation of the interstate commerce -- of an interstate train.

And two, that an undue burden would not be placed upon the railroads by that continued operation.

In other words, the Commission has to meet both statutory standards for an interstate train to be taken of whereas the corollary has to be proven by the carriers.

The carriers have nothing to prove in the 13 (a) (1) proceeding.

They can take off an interstate train for any reason they choose.

So long as they publish the required notice.

I think it is abundantly clear to everyone that Section 13 (a) is an altogether different section of the Interstate Commerce Act than any other section.

The District Court in the New Jersey case which this Court affirmed in County Bergen made the statement, Section 13 (a) (1) embodies a new and distinct exercise of the congressional power.

Its language is clear and unambiguous.

And therefore neither admits or nor requires any construction by comparison with any other section or subsection of the Interstate Commerce Act as amended.

The statute itself is self-implementing the other provisions of the Interstate Commerce Act or not.

For example, if a railroad seeks to abandon a line of railroad, it must do so by applying to the Commission and seeking the Commission's authority and the only basis under which that authority can be granted is by the Commission issuing a certificate at present or future public convenience and necessity permits.

It's the Commission's decision, the Commission's authority.

It is totally different than what you have involved in Section 13 (a) (1).

I might say that that Commission itself has consistently recognized that it is not given the authority to approve or disapprove an interstate train can discontinuance under Section 13 (a) (1).

In the Great Northern Case at 307 ICC 59, page 76, they specifically held that we have no discretion to approve or disapprove a proposed discontinuance.

Our duty is in appropriate cases to investigate the facts and only if such investigation warrants the findings specified in the statute may we require a railroad to continue or restore the service which is the subject of the investigation.

Chief Justice Warren E. Burger: How do you distinguish that from let's say its non-approval or disapproval.

Mr. James W. Hoeland: I distinguish that Your Honor on the -- with respect to perhaps a Section 13 (a) (2) proceeding before the Interstate Commerce Commission.

They are there called upon to approve or disapprove the proposal of the Railroad to discontinue the train.

The statute does not give -- 13 (a) (1) does not give to the Commission the power to disapprove or approve.

The statute gives the Commission only one-fifth of limited veto power.

Limited jurisdiction to require the Railroad to continue to operate the trains for an additional year if the Commission finds after investigation: one, that there is a public need for the trains and two, that continued operation would not constitute an undue burden.

Unless the Commission can make both of those findings, the Railroad discontinues a train by operation statute and not by any Commission order of lack of order and this is why you get into the question of fairness or lack of fairness.

You do not have -- you only have an order issued by the Commission in those instances and when the Commission orders a railroad to continue the operation for a year.

As this Court has held in the Atlantic Coast Line case, ICC versus Atlantic Coast Line that a Commission order is reviewable if it determines rights or obligations from which legal consequences may flow.

I respectfully submit that there are no legal rights in the interest of the appellants in this case to which they are entitled to judicially review.

And I think that this Court has answered that question in the New Jersey case because if the appellants have a right in a 13 -- Section 13 (a) proceeding, that right should certainly survive the decision of the Interstate Commerce Commission whether it would or would not investigate a train off case.

In those instances where the Commission refuses to investigate, the interest of communities in the State of New Jersey, its public service commission and the County of Bergen and all others certainly was as great as it is when the Commission sets a case down for hearing that this Court has held that there is no judicial review where the Commission does not investigate.

Now, it certainly there's nothing in the manner in which Congress drafted Section 13 (a) (1) that suggest any fragmentizing of the question of judicial review depending on whether the ICC decides to investigate or whether it doesn't.

And in a corollary to that point, I believe is the fact that the argument of the Government in this case is that the ICC decides whether judicial review is available.

Now certainly Congress never intended that when they enacted Section 13 (a) (1).

But the Government says if the Commission does not investigate, then it is not subject to judicial review.

However, if the Commission does investigate, it is subject to the judicial review.

Now, the question of whether an investigation is held or not, is dependent according to government solely on the question of whether a substantial question exists.

And so by the simple expedient of the Commission deciding whether or not a substantial question exists, judicial review is or is not had but it is not certainly in the statute that nor an intention of Congress when it enacted Section 13 (a) (1) that any such distinction could ever be drawn.

I might say Your Honors, that in other point which bears very directly on this issue and that on the question of judicial review are the circumstances underlying the enactment of Section 13 (a) (1).

In 1958, the Railroads were in dire financial condition.

They were losing at the rate of about $700 million a year on their passenger train operations alone.

Theretofore, the railroads were relegated to the piecemeal approach of going to each of the various states to which the interstate train operates and to seek their authority to discontinue train frequently that authority was denied or in many cases unduly delayed and as a consequence, Congress was highly concerned with the extensive delays that were being experience and the costly of delays and burdens on the railroads to operate unneeded and costly passenger trains.

This was the very purpose that Congress entered the field and when it did it gave the carriers the right to completely bypass any state regulatory proceeding by the expedient of filing a notice which in 30 days would enable them to discontinue the train unless postpone for another four months by the institution of an investigation.

The Government and appellants would have this Court believe that the concept of judicial review is not incompatible with the intent of Congress to dispose of these cases as promptly as possible.

Congress has set a maximum period of five months under which a train has to be operated unless the Commission issues an order base on the two statutory standards previously mentioned requiring continued operation for one more year.

But the point I think is establish by the circumstances in number 102, the L & N trains that are involved in the so-called Hummingbird trains between Cincinnati and New Orleans.

The day before the discontinuance was to take effect, the appellants, filed suit in the federal court in Chicago and obtained the temporary restraining order which restraining order remained in effect for a period of nine months after the date that the L & N filed its notice to discontinue the trains.

Congress set the period at five months as a maximum.

And yet, here the L & N was operating a train that was losing money at the rate of a million dollars a year for an additional period time without any protection of the bond and I there say that if this Court had granted a stay at the District Court's order then we would still be operating it.We would be losing at the rate of a million and a half dollars would have lost it, at least a million and a half dollars by now and the continuing to operate until further order of the Court.

I would certainly don't think that there's any consistency between the intention of Congress in enacting and putting on a maximum five months statutory suspension period and the concept to judicial review where railroads are frequently faced with temporary restraining orders where bonds are not given for the adequate protection of any damages that might be given.

I might want to say one more thing if Your Honors please with respect to the Los Angeles case.

As this Court held in that proceeding that there are so-called orders of the Interstate Commerce Commission which are not subject to judicial review, with respect to the discontinuance of a proceeding under Section 13 (a) (1) that Commission does characterized its discontinuance as an order.

There is nothing in the statute that says they should characterize it as an order and in fact it's nothing more that a notice to the parties and if anything a housekeeping order.

It is not an order ordering anybody to do anything in this case.

And under those circumstances, we respectfully submit that the decision of Los Angeles is in effect apposite to this point.

And what is -- what the Commission has simply done in issuing its so-called order of noticing discontinuance, it is merely the statement of the results of its investigation.

Thank you Your Honors.

Chief Justice Warren E. Burger: Thank you Mr. Hoeland.

I think your time is entirely exhausted if I'm not correct.

Is there any time remaining for the --

Rebuttal of Gordon P. Macdougall

Mr. Gordon P. Macdougall: I'd like to just mention one or two things.

The first is that where the Commission does enter upon an investigation during the 30 days notice period and where it does issue an order requiring continued operation of the trains.

After that point, the discontinuance of the trains does not come operative pursuant to the statute.

It becomes operative pursuant to the expiration of that Commission order, an order which the Commission determines it will not renew.

So, if there is a Commission approval or disapproval of the train off case, once they enter upon an investigation, now it's true that in the 30-day notice period if they decide not to investigate, the discontinuance would take place pursuant to the statute.

Now that case is not before us today.

We're not rearguing the State of New Jersey or finding out what modification of it should be made.

The case we have here today is that the Commission did institute an investigation.

And moreover, they held hearings and the statute requires a hearing.

Section 13 (a) (1) (ph) requires a hearing requires evidence and requires findings under Section 14 (1) of the Interstate Commerce Act.

Once the Commission enters an investigation, it has to make findings and a report.

And the last thing I'd like to say is that order simply discontinued an investigation is common at the Commission, common.

It hasn't come to before this Court perhaps to such a precise distinguishing between what do they do on remand if they set aside the court that is in order of discontinuing investigation but this is -- does happen behind the scenes of all of the freight rate cases.

Justice Potter Stewart: Does the statute require findings before an order of discontinuance?

It doesn't, does it?

Rebuttal of James W. Hoeland

Mr. James W. Hoeland: The statute requires that the -- well, let's put in the other way.

It says if the Commission finds that continued operation is required to issue an order requiring continued operation, but the Commission has always held that the opposite applies that once they enter an investigation, once they hold hearings, that they have to make findings.

Findings as to whether the trains are required by public convenience necessity whether they're not.

And that decision is the Great Northern decision reported at 307 ICC.

And also the, as I said Section 14 (a) requires findings and a report and I think also the Administrative Procedure Act requires it in any investigation.

Chief Justice Warren E. Burger: Thank you gentlemen for your submissions.

The case is submitted.