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May 15, 1972


Before Swygert, Chief Circuit Judge, Poos, Chief District Judge, and Morgan, District Judge.

The opinion of the court was delivered by: Poos, Chief District Judge.


This is an action to annul and set aside a report and order of the Interstate Commerce Commission which held that Trains Number 3 and 4 of the Louisville and Nashville Railroad ("Danville Flyer") were "intercity service" as defined in Section 102(5) of the Rail Passenger Service Act ("Amtrak Statute") 45 U.S.C. § 502(5). The effect of this holding was that the termination of service on Trains 3 and 4 between Chicago and Danville, Illinois, was placed beyond the subject matter jurisdiction of the Interstate Commerce Commission pursuant to 45 U.S.C. § 546(a)(3) and 561(a)(1). As a result of this determination the instant trains were omitted from the schedule of continued rail passenger lines promulgated by the Secretary of Transportation May 1, 1971.

The proceedings concerning the "Danville Flyer" began with the application of the Chicago and Eastern Illinois Railroad (C&EI) in 1966 with the Illinois Commerce Commission to discontinue operation of the "Danville Flyer". The application having been denied, the C&EI then applied to the Interstate Commerce commission for discontinuance, but was again denied. Chicago & Eastern Illinois Railroad Company Discontinuance, 333 ICC 626 (1968).

The C&EI then instituted an action in the United States District Court at Chicago where a three-judge court set aside the Commission's report and remanded the cause for further proceedings. Chicago & Eastern Illinois Railroad Co. v. United States, 308 F. Supp. 645 (N.D.Ill.1969). The United States took a direct appeal to the U.S. Supreme Court and probable jurisdiction was noted. 398 U.S. 957, 90 S.Ct. 2172, 26 L.Ed.2d 541 (1970). However, while awaiting argument, Congress enacted the Amtrak Statute, 45 U.S.C. § 501 et seq.

The Amtrak legislation provided for a national network of intercity rail passenger service and gave the railroads an option of participation in this program. Once a member of this program, railroads were thereafter relieved of all responsibility of providing intercity rail passenger service after May 1, 1971. Inasmuch as the Amtrak legislation applied only to "intercity" service and not to "commuter and other short-haul service", the Supreme Court disposed of the "Danville Flyer" appeal by vacating the District Court Judgment and remanding the cause to the District Court for ultimate remand to the Interstate Commerce Commission to determine whether or not the service involved was "intercity" within the meaning of Section 102(5) of the Rail Passenger Service Act of 1970, P.L. 91-518.

The Commission determined that the service involved was "intercity" within the meaning of Section 102(5) and that it had no jurisdiction over the discontinuance after the effective date of the Act. The Complaint originally challenged the constitutionality of the Amtrak Statute, but upon motion the constitutional challenge was severed and stricken. The only issue remaining is the propriety of the Interstate Commerce Commission's decision on remand. Cross motions for summary judgment are pending.

The reviewing court must affirm the decision of the Commission if the decision could reasonably have been made on the record viewed as a whole. Virginian Ry. Co. v. United States, 272 U.S. 658, 663, 47 S.Ct. 222, 71 L.Ed. 463 (1926); ICC v. Union Pacific RR, 222 U.S. 541, 547-548, 32 S.Ct. 108, 56 L.Ed. 308 (1912); Pre-Fab TransitCompany v. United States, 306 F. Supp. 1247, 1250 (S.D.Ill.1969), aff'd 397 U.S. 40, 90 S. Ct. 815, 25 L.Ed.2d 41 (1970). This standard remains the same even where the Commission has ruled inconsistently on similar factual circumstances without regard to whether the decision for which review is sought is consistent with past practice.FCC v. Woko, Inc., 329 U.S. 223, 228, 67 S.Ct. 213, 91 L.Ed. 204 (1946); Virginian Railway Co. v. United States, supra, 272 U.S. at 663, 47 S.Ct. 222.

The Commission determined that studies done by the railroad established that no substantial number of passengers used the trains on a regular basis as commuters. Although this finding of fact is contested by the plaintiffs, it would appear that whether that study was sufficient to establish a lack of commuter use is a question of weighing it against other evidence which is not a function normally indulged in by a reviewing court. The other evidence is not disputed, except the plaintiffs claim that they did not have ample opportunity to present their evidence — a claim which is unsupported by the record.

The principal challenge of the plaintiffs is that the Commission did not apply the proper standards in determining whether the "Danville Flyer" provided intercity service. The order of the Supreme Court which remanded the cause with directions for remand to the Commission is implicit recognition of the role the Commission's experienced judgment should play in the determination of what facts should be determinative of whether a given route was primarily intercity or primarily commuter in nature. That being the case, the decision of the Commission should be affirmed absent a clear showing of prejudicial error. The Commission based its determination that the instant trains provide "intercity" service on an application of the criteria for that determination it had established in Penn Central Transportation Company Discontinuance, etc., 338 ICC 318 (1971).

The Penn Central case referred to by the Interstate Commerce Commission was an earlier "intercity" determination which set forth certain interpretative guidelines, or "criteria" which the Commission stated it would consider in all cases of this nature. These criteria are as follows (338 ICC at 326):

  "To sum up on this issue, it is our considered
  opinion that, viewing as a whole the nature of
  the `commuter and other short-haul service'
  exclusion as that term is used in section 102(5)
  (a) of the Rail Passenger Service Act of 1970, it
  would likely include some or all of the following
  features to be so considered:
    (1) The passenger service is primarily being
    used by patrons travelling on a regular basis
    either within a metropolitan area or between a
    metropolitan area and its suburbs;
    (2) The service is usually characterized by
    operations performed at morning and evening

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