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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