Before Knoch, Senior Circuit Judge, and Robson and Perry,
The opinion of the court was delivered by: Robson, District Judge:
MEMORANDUM AND ORDER ON MOTION TO DISMISS
This is a suit to review certain findings and conclusions of
the Interstate Commerce Commission. The defendant railroad has
moved to dismiss. This court is of the opinion that the motion
should be granted.
On April 3, 1968, the Louisville & Nashville Railroad Company
("L & N") gave notice under 49 U.S.C. § 13a(1) that, effective
May 7, 1968, its trains numbered 6 and 7 between Cincinnati,
Ohio, and New Orleans, Louisiana, would be discontinued. The
Interstate Commerce Commission ("Commission"), on April 24, 1968,
entered an order requiring the L & N to continue operating trains
6 and 7 pending an investigation by the Commission. After
hearings, the Commission terminated its investigation, and on
September 3, 1968 (served September 6, 1968) filed a report. This
action was filed shortly thereafter, and, on September 9, 1968, a
temporary restraining order was entered. After a further hearing,
the restraining order was continued until a three-judge court
could be convened and a decision rendered. A joint hearing (with
City of Chicago v. United States, D.C., 294 F. Supp. 1103) was
held on November 4, 1968. The Commission denied a petition for
reconsideration on October 31, 1968, thereby making its action
The defendant L & N has moved to dismiss on the ground that
this court lacks jurisdiction to review the Commission's decision
to terminate the investigation of the proposed discontinuance.
This issue was discussed at length in the opinion filed today in
City of Chicago v. United States, D.C., 294 F. Supp. 1103. A copy
of that opinion is attached and the argument on the
jurisdictional issue is hereby incorporated by reference. In
short, this court is of the opinion that Congress intended to
deny judicial review in cases such as the one before this court.
It is further ordered that the temporary restraining order
heretofore entered be and it is hereby dissolved.
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