Before Cummings, Circuit Judge, and Perry and Decker, District
The opinion of the court was delivered by: Decker, District Judge.
This is an action for declaratory and injunctive relief arising
out of the discontinuance by the Burlington Northern Railroad of
two trains operating between Chicago, Illinois and West Quincy,
Plaintiffs are various charitable and municipal corporations
which purport to represent all citizens of Macomb and Quincy,
Illinois who are affected by the termination of railway service
to and from Chicago. Until recently, defendant Burlington
Northern, Inc. owned and operated trains Nos. 5 and 6 between
West Quincy and Chicago. The trains were terminated pursuant to a
contract entered into between the Burlington Northern and
defendant National Railroad Passenger Corporation ("Amtrak"). The
contract was executed pursuant to the National Railroad Passenger
Act of 1970, 45 U.S.C. § 501 et seq., which relieved the railroad
of its responsibility under applicable law of providing intercity
rail passenger service, in consideration for the payment to
Amtrak of several million dollars.
Both counts of the complaint allege that the discontinuance of
train service between West Quincy and Chicago violates the United
States Constitution. The only material difference between the
counts is the additional allegation in Count II that defendants
conspired to violate the Constitution.
In their brief in opposition to the motions to dismiss, and at
oral argument on the motion for a preliminary injunction,
plaintiffs characterized Count I as alleging a cause of action
for breach of § 403(a) of the Act, 45 U.S.C. § 563(a). That
provision authorizes Amtrak to provide intercity rail passenger
service in excess of that prescribed by the basic system, "if
consistent with prudent management." However, it is clear from
the face of the complaint and from the motion to convene the
three-judge court that the main thrust of this action is the
unconstitutionality of the Act.
Plaintiffs' first challenge to the Act is that it attempts to
regulate commerce which is solely intrastate. However, trains
Nos. 5 and 6 were in fact interstate carriers, operating between
West Quincy, Missouri, and Chicago, Illinois. Even if it could be
said that the trains operated solely intrastate,*fn1 it is now
too late in the day to argue that Congress is prohibited by the
Commerce Clause from regulating such activity. It has been held
that purely local activity may be regulated by Congress pursuant
to the Commerce Clause if it exerts a substantial economic effect
upon interstate commerce. Wickard v. Filburn, 317 U.S. 111, 63
S.Ct. 82, 87 L.Ed. 122 (1942). And it is well-established that an
intrastate railroad line which forms part of a larger interstate
line can indeed have a substantial economic effect upon the
interstate commerce carried on by that line. See Colorado v.
United States, 271 U.S. 153, 164, 46 S.Ct. 452, 70 L.Ed. 878
(1926). Under the authority granted by the Commerce Clause,
Congress was entirely justified in exerting control over the West
Plaintiffs next argue that the Act violates the Equal
Protection Clause of the Fourteenth Amendment, by favoring train
service between large metropolitan centers at the expense of
smaller, rural communities. However, the Fourteenth Amendment
proscribes state action, and is not applicable to the federal
government. See Simpson v. United States, 342 F.2d 643, n. 1 (7th
Cir. 1965); United States v. Cook, 311 F. Supp. 618, 621 (W.D.Pa.
1970); cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98
L.Ed. 884 (1954). Hence, plaintiffs have no valid claim that the
federal statute violates the Fourteenth Amendment.
Plaintiffs argue that the discontinuance of service denies them
substantive due process of law under the Fifth Amendment.
However, substantive due process, to the extent that it is still
a viable doctrine, is only violated upon a showing that the
Congressional scheme has no rational basis. United States v.
Carolene Products Co., 304 U.S. 141, 58 S.Ct. 778, 82 L.Ed. 1234
(1938). The legislative history of the Act, 1970 U.S.Code Cong.
and Admin. News, p. 4735 et seq., as well as its avowed
Congressional purpose, 45 U.S.C. § 501, leave no doubt that the
Act is a rational attempt to preserve and revitalize the
gradually disappearing intercity railway passenger service. It
cannot be said that the Act is a violation of substantive due
Plaintiffs next contend that they are denied procedural due
process by not being permitted to review the basic system in any
court, but only before the Secretary of Transportation. 45 U.S.C. § 522.
Judicial review of final agency action will not be
foreclosed unless there is a persuasive reason to believe that
Congress so intended. Abbott Laboratories v. Gardner,
387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The explicit
words of the statute, 45 U.S.C. § 522, that the basic system
"shall not be reviewable in any court", are clearly sufficient to
indicate that Congress intended no judicial review. See State of
New Jersey v. United States, 168 F. Supp. 324 (D.N.J. 1958), aff'd
per curiam, Bergen County v. United States, 359 U.S. 27, 79 S.Ct.
607, 3 L.Ed.2d 625 (1959). Under the circumstances, no Fifth
Amendment procedural due process claim has been made out.
Plaintiffs' final constitutional argument, advanced primarily
at the hearing on the motion for a preliminary injunction, is
that the Act works an unconstitutional delegation of legislative
authority, citing Schechter Poultry Corp. v. United States,
295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), and Panama Refining
Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935).
They apparently challenge the power given to Amtrak pursuant to
45 U.S.C. § 546(a), whereby rates can be set and lines can be
discontinued or extended (if outside the basic system) without
the constraints set by the Interstate Commerce Act.
The Schechter and Panama cases have been severely limited to
their own facts. See Fahey v. Mallonee, 332 U.S. 245, 249, 67
S.Ct. 1552, 91 L.Ed. 2030 (1947). Delegation of legislative power
is now permitted if that power is sufficiently circumscribed by
appropriate statutory standards or safeguards. See, e.g., Arizona
v. California, 373 U.S. 546, 583, 83 S.Ct. 1468, 10 L.Ed.2d 542
A careful reading of the Act demonstrates that sufficient
standards and safeguards have been set out by Congress. For
instance, under § 308, 45 U.S.C. § 548, Amtrak is required to
submit to the President and Congress detailed annual reports of
its operations, activities, and accomplishments. In addition, it
is made subject to the same safety regulations and labor laws as
other common carriers. 45 U.S.C. § 546(b). Also, rail passenger
service in excess of the basic system, if implemented, must be
"consistent with prudent management." 45 U.S.C. § 563(a).
Finally, if Amtrak should not act consistently with the policies
of the Act, the United States Attorney General is authorized to
go into federal district court to obtain equitable relief.
45 U.S.C. § 547. Under all the circumstances of this case, Congress
has set sufficient statutory standards and safeguards upon the
power delegated to Amtrak. There has thus been no
unconstitutional delegation of legislative power.
Plaintiffs' only non-constitutional challenge is that Amtrak
has violated the "prudent management" standard of § 403(a) by not
providing intercity rail passenger service between Chicago and
West Quincy. However, plaintiffs have answered their own argument
in the course of Count I of the complaint. There it is alleged
that the Illinois legislature is considering the funding of lines
in excess of the basic system. The Act permits any state to
petition Amtrak to provide service beyond that provided by the
basic system in return for the state's promise to pay ...