The opinion of the court was delivered by: WORTENDYKE
A branch line, commonly known as the West Shore Line of the New York Central Railroad Company (Central) transports commuting passengers by rail and ferry between their homes in Rockland County, New York, and Bergen County, New Jersey, and their places of employment in Greater New York City. The rail line of this branch terminates at Weehawken, New Jersey, which is located on the west side of the Hudson River, but the line is continued across the Hudson River to the City of New York by means of ferry boats. Central's passengers cross the river in each direction, daily, by means of the ferries. For a period of years Central has been operating these ferries, as far as the transportation of passengers is concerned, at a substantial financial loss.
In December 1954, Central made application to the Interstate Commerce Commission, pursuant to section 1(18) of the Interstate Commerce Act, as amended by the Transportation Act of 1920, 41 Stat. 477, 49 U.S.C.A. § 1(18), for a certificate that public convenience and necessity permitted the abandonment of its Hudson River ferries. After extended hearings, the Commission's Division 4 reported that Central was entitled to such a certificate, 295 I.C.C. 385, and this was affirmed by order of the full Commission on May 15, 1957. 295 I.C.C. 519. Before the effective date of the ferry abandonment authorized by that order the present plaintiffs, Board of Public Utility Commissioners of the State of New Jersey (Board) and the State of New Jersey (State), brought an action in this Court to review the Commission's order. Board of Public Utility Commissioners of New Jersey v. United States, D.C.1957, 158 F.Supp. 98. We decided in that case that the Commission was without jurisdiction to authorize Central to discontinue its passenger ferry service from Weehawken to New York City, while continuing to operate its waterborne freight transportation service by ferriage between the same cities. In reaching that conclusion we held that the discontinuance of passenger ferry service was not an abandonment of a portion of a line of railroad within the meaning of Section 1(18) supra, and therefore was beyond the power of the Commission to authorize. Cf. Gulf, M. & O.R. Co. v. Louisiana Public Service Commission, D.C.La.1954, 120 F.Supp. 250. We are told that an appeal from our decision was taken to and is still pending before the Supreme Court of the United States.
Pending that appeal the Congress enacted the Transportation Act of 1958, Pub.L. 85-625; 85th Cong., 2d Sess., 72 Stat. 568 (August 12, 1958). It is entitled 'An Act to amend the Interstate Commerce Act, as amended, so as to strengthen and improve the national transportation system, and for other purposes.' By this new legislation there was added to the Interstate Commerce Act, inter alia, a new section designated as Section 13a.
On August 13, 1958, Central, purporting to act pursuant to paragraph (1) of the new Section 13a, filed with the Commission, mailed to the respective Governors of New York and New Jersey and posted in its depots served by the ferries a notice that the operation of these ferries for the transportation of passengers would be discontinued at 12:01 a.m. on September 13, 1958.
On August 25, 1958, Board and State filed with the Commission a formal complaint requesting that the Commission enter upon an investigation of the proposed ferry discontinuance and set the matter down for hearing. In response to this complaint the Commission gave written notice, dated August 26, 1958, that 'Upon consideration of the matters involved, including consideration of the records in Finance Docket No. 18781 ( N.Y. Central R. Co. Ferry Abandonment, 295 I.C.C. 385 and 519) and Docket No. 32359 (Fares and changes via Weehawken Ferry) (it) has concluded not to enter upon an investigation of the proposed discontinuance or otherwise to require that such ferry service be continued, in whole or in part.'
On September 4, 1958 the present action was instituted, invoking the same jurisdiction as that relied upon in the action to review the Commission's order of May 15, 1957, and additionally that claimed to be conferred by Title 28 U.S.C. § 1331 and 2282. Plaintiffs now seek a declaration that this new Section 13a(1) of the Interstate Commerce Act is unconstitutional, that its operation be enjoined, that Central be enjoined from discontinuing its Weehawken-New York ferry service and that the Commission's notice of August 26, 1958 and its order of September 2, 1958, be set aside.
Plaintiffs further pray that, if Section 13a(1) be declared constitutional, the Commission be directed to enter upon an investigation of the complaint filed by State and Board respecting the ferry discontinuance, and that Central be ordered to continue the operation of the ferry service pending hearing and decision by the Commission.
Upon due application we granted to the plaintiffs a preliminary injunction on September 12, 1958, having previously allowed the intervention, as plaintiffs, of County of Bergen, State of New Jersey; County of Rockland, State of New York; the Boroughs of Bergenfield, Bogota, Dumont, Harrington Park, Haworth, Norwood, and the Township of Teaneck; and the Citizens United Transit Committee, an unincorporated association of New Jersey resident commuters. At the same time, the Public Service Commission of the State of New York was permitted to appear as amicus curiae. The operation of the ferries, therefore, continues. We are told that on September 29, 1958 Central applied to the Supreme Court of the United States for a stay of the Court's injunctive order of September 12, 1958 pending the final determination by the Supreme Court of an appeal therefrom, and that the application was denied by Mr. Justice Brennan on October 6, 1958.
Having duly come to issue, final hearing in the present action was held on November 3, 1958.
We recognize jurisdiction here under 28 U.S.C. § 2282 (1952), in conjunction with 28 U.S.C. § 1331 (1952).
We find no jurisdiction under 28 U.S.C. § 1336 (1952), because the action is not one to 'enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission.' On the contrary, the plaintiffs complain of the refusal of the Commission to act, i.e., 'to enter upon an investigation of the complaint' of the plaintiffs. No 'order' of the Commission is here complained of. Its written notice that it would not investigate the complaint does not constitute such action as is reviewable under § 1336, supra. Cf. Rochester Telephone Corp. v. United States, 1939, 307 U.S. 125, 59 S. Ct. 754, 83 L. Ed. 1147. As was the case in United States v. Los Angeles & Salt Lake R. Co., 1927, 273 U.S. 299, 310, 47 S. Ct. 413, 414, 71 L. Ed. 651:
'The so-called order here complained of is one which does not command the carrier to do, or to refrain from doing, anything; which does not grant or withhold any authority, privilege, or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier's existing or future status or condition; which does not determine any right or obligation. This so-called order is merely the formal record of conclusions reached after a study of data collected in the course of extensive research conducted by the Commission, through its employees. It is the exercise solely of the function of investigation. * * *'
The notice given by the Commission in the present case by way of response to the plaintiffs' complaint was nothing other than an announcement that the Commission intended to take no action with respect to the railroad's notice of intention to discontinue the ferries. Section 13a(1) clearly leaves to the absolute discretion of the Commission the determination of whether or not it, upon receipt of a complaint directed against a railroad's notice of intention to discontinue service, shall make any investigation of the matter or avail itself of its temporary veto power by way of suspension within the limitations of the Act. The Act is self-implementing insofar as it affords authorization to a carrier to discontinue service. No provision is made for any action of the Commission to render such authorization effective. The efficacy of the congressional authorization is in no respect dependent upon any action on the part of the Commission. Obviously, therefore, the provisions of 28 U.S.C. § 1336 do not clothe us with jurisdiction here.
No greater jurisdictional assistance is afforded to the plaintiffs by the provisions of 5 U.S.C.A. § 1009, as will appear from the following critical language thereof:
'Except so far as * * * agency action is by law committed to agency discretion. (a) Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any ...