United States District Court, Northern District of Illinois, E.D
December 14, 1973
PEOPLE OF THE STATE OF ILLINOIS ET AL., PLAINTIFFS,
UNITED STATES OF AMERICA ET AL., DEFENDANTS.
Before Sprecher, Circuit Judge, and Parsons and Marovitz,
The opinion of the court was delivered by: Per Curiam.
This action is brought by the Attorney General of Illinois,
four communities, and the Illinois Legislative Director of the
United Transportation Union, to set aside an order of the
Interstate Commerce Commission (Division Three), entered April
30, 1971 (served May 11). This order dismissed an investigation
previously instituted by the Commission, which investigation
concerned the proposed discontinuance of a pair of passenger
trains operated by Chicago & North Western Transportation Company
(CNW) between Clinton, Ia. and Chicago, Ill. The Commission
proceeding was entitled Finance Docket No. 26256, Chicago and
North Western Railway Company Discontinuance of Trains Nos. 1, 2,
and 11 and 12 between Chicago, Ill., and Clinton, Iowa. Petitions
for reconsideration were denied September 24, 1971 (served
October 15) by Division Three, acting as an Appellate Division.
The trains were discontinued April 30, 1971, after a
single-judge of this court declined to enter a temporary
restraining order or a preliminary injunction. (Civil No. 71 C
1009, Marovitz, J.)
The underlying issue is whether these trains provide intercity
rail passenger service or commuter and/or other short-haul
service. 45 U.S.C. § 502. Plaintiff contends that the trains
provide commuter or short-haul service under the Rail Passenger
Service Act of 1970 and, therefore, cannot be discontinued
without prior approval of the state or federal commerce
commission. CNW contends that the trains provide intercity
service under the new act and, therefore, may be discontinued
pursuant to the provisions of that statute, 45 U.S.C. § 561, with
which provisions defendant is in compliance.
The definition of intercity rail passenger service is set forth
in 45 U.S.C. § 502(5):
"all rail passenger service other than (A) commuter
and other short-haul service in metropolitan and
suburban areas, usually characterized by reduced
fare, multiple-ride and commutation tickets, and by
morning and evening peak period operations. . . ."
Commuter and other short-haul service is further characterized by
frequent stops at short intervals within certain areas, equipment
consisting of little more than ordinary coaches, and a mileage
limitation of approximately 100 miles. Penn Central
Transportation Company Discontinuance, 338 ICC 318, 325-26 (Feb.
10, 1971). Division 3 has indicated by its order that the
principal characteristics of Trains 1, 2, 11, and 12 are "not
such as would bring them under the `non-intercity' exclusion of
Section 102(5), Rail Passenger Service Act, and that, therefore,
they may be discontinued in accordance with the provisions of the
said Act . . .".
The sole issue presently before the court is whether the order
of April 30, 1971, entered by Division III, and which dismisses
the Commission's investigation upon a finding that the principal
characteristics of the service provided by the trains are not
such as to bring them under the "non-intercity" exclusion of
section 102(5)(A), must be set aside for insufficient findings
and for absence of a report.
Plaintiffs argue that the I.C.C. order under discussion fails
to meet the requirements of 5 U.S.C. § 557(c)(3)(A) that all
decisions shall include a statement of findings and conclusions
on all the material issues of fact, law, or discretion presented
on the record, and that this reviewing court should therefore set
aside the agency action for failure to observe the procedure
required by law. 5 U.S.C. § 706(2)(D). The underlying evidence
which supports the Division 3 order is not under attack; it is
the contention of plaintiffs that an exploration of the evidence
would be improper, because the Administrative Procedure Act
requires the necessary findings, and it is these findings — here
allegedly insufficient — which must be supported by substantial
We disagree that the Commission's findings are inadequate.
Before one can make determinations as to adequacy, one must
answer the foundation question, "Adequate to accomplish what
purpose?" The Congressional policy in setting forth the
requirements of 5 U.S.C. § 557(c)(3)(A) that findings be set
forth would seem at least fourfold: (1) to prevent arbitrary and
capricious decisions in a manner violative of due process, (2) as
an explanation to the parties involved as to the basis for the
decision, (3) to give guidance to parties similarly situated, and
(4) to provide a basis for judicial review by the courts. This
court finds the Commission report sufficient in all respects,
particularly in view of the large amount of underlying evidence,
the persuasiveness and quantity of which perhaps account for the
unelaborated report of the final conclusion.
Admittedly, the final Division order is brief. But one should
consider that during the first few months of the new Amtrak
Statute, the Commission had before it a number of pending
discontinuance proceedings, concerning which some decision had to
be made within a very short time as to the intercity status of
the various trains involved. The parties were initially invited
to respond on this question by order dated December 31, 1970. The
Commission then developed guidelines in one proceeding — Penn
Central Transportation Co. Discon. or Change in Service, 338
I.C.C. 318 — which could be used in future proceedings. Finally,
once the Amtrak discontinuances were very close to becoming
effective, the Commission issued its order of April 30, 1971,
finding that various trains were intercity in nature, and that
the corresponding § 13a proceedings should be dismissed. This is
not to imply that the Commission, merely because of a heavy
schedule, may abdicate its responsibility under law
with regard to its administrative duties, but nor should brevity
be condemned when concision will serve as well as verbosity.
When a similar problem was posed before the Supreme Court in
Alabama G.S.R. Co. v. United States, 340 U.S. 216, 71 S.Ct. 264,
95 L.Ed. 225, it looked to see that the essential basis of the
Commission's judgment was sufficiently disclosed in its report.
Id. at 228, 71 S.Ct. at 272. The Court said further:
And the basic findings essential to the validity of a
given order will vary with the statutory authority
invoked and the context of the situation presented.
E.g., United States v. Pierce Auto Lines,
327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821; State of North
Carolina v. United States, 325 U.S. 507, 65 S.Ct.
1260, 89 L.Ed. 1760; City of Yonkers v. United
States, 320 U.S. 685, 64 S.Ct. 327, 88 L.Ed. 400;
United States v. Carolina Carriers Corp.,
315 U.S. 475, 62 S.Ct. 722, 86 L.Ed. 971. Here the Commission
found, in conformity to the statute invoked . . .
"the report, read as a whole, sufficiently expresses
the conclusion of the Commission, based upon
supporting data. . . ." United States v. Louisiana,
290 U.S. 70, 80, 54 S.Ct. 28, 33, 78 L.Ed. 181.
Enough has been "put of record to enable us to
perform the limited task which is ours."
Eastern-Central Ass'n v. United States, 321 U.S. 194,
212, 64 S.Ct. 499, 508, 88 L.Ed. 668.
So it is in this situation. The order of April 30, 1971, makes
actual reference to Section 102(5) of the Amtrak Statute, and
impliedly refers to the Penn Central guidelines. Further, we are
reminded that this court, in denying a temporary restraining
order in People of the State of Illinois v. Chicago & N.W. Ry.
Co., Civil Action No. 71 C 1009, per Marovitz, J., reached the
conclusion, independently of the I.C.C., that plaintiff failed to
show a probability for success on the merits of the
intercity-commuter issue. We said then:
Moreover, the extensive documentation provided by
the CNW with respect to the Iowa and Wisconsin trains
supports the defendant's contention that these
provide intercity service and has not been
contradicted by plaintiff. The Iowa trains operate
over a distance of 137.1 miles from Chicago, Illinois
to Clinton, Iowa, hardly a suburb of Chicago. There
are only eight intermediate stops on the route, the
shortest distance between two communities being 8.5
miles. Rider usage between Clinton and DeKalb,
Illinois, a point about 58 miles from Chicago, is
apparently infrequent. The usual equipment consists
of low level coaches. In sum, many of the features of
intercity service and not commuter service are
present. There is no need to further analyze the
merits of the Iowa train issue to find that plaintiff
has not met its burden of proof here.
To send this case back to the Commission in order for them to
merely repeat verbatim the six Penn Central guidelines, followed
by an elaboration of the above-quoted paragraph, is an
injudicious use of time and resources. The statutory criteria
used in this case are clear. The factual evidence and
documentation presented is abundant. And this court has had no
problem in reviewing the application of the facts to the
Commission's criteria because of an inadequacy in the findings,
and finds itself in agreement with the Commission's conclusion.
As a final point of interest, though it should be stressed, one
not ultimately responsible for our reasoning herein, we note that
the plaintiffs, by way of a brief to the I.C.C. on October 20,
1970, were also arguing at that point in time that the CNW was an
intercity, rather than a commuter train. Whether by coincidence,
or otherwise, the Illinois parties suddenly reversed their
position on the intercity-commuter issue when the trains herein
involved were not included in the basic Amtrak system, perhaps
hoping that by having the Commission
rule that the trains were not intercity, service might be
maintained through a favorable ruling under § 13a.
The State certainly has the prerogative of a change of mind,
and such a change is of course irrelevant to the legal issue of
the adequacy of the Commission's findings, and should not
influence the analysis of this court in resolving the issue
before us. Nonetheless, the fact that the plaintiffs in this case
were of the same opinion on the intercity-commuter issue as this
court until it was in their best interests to argue otherwise,
independently buttresses our result.
In conclusion, this panel denies the plea of plaintiffs to
enjoin, annul, or suspend the orders of the Interstate Commerce
Commission, Division 3, regarding Chicago and North Western
Railway Company Discontinuance of Trains Nos. 1, 2, and 11 and 12
between Chicago, Ill., and Clinton, Iowa, as we do not deem the
findings, decisions, or orders involved herein to be so deficient
as to be in violation of the law.
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