their contentions that the rates most recently filed between Texas City, Texas and Kenilworth, New Jersey, should not be approved, but that their taking effect should be restrained. The railroads contended that this action has become moot by the withdrawal of the tariff which was under reconsideration by the Commission, and which were the only rates covered by the complaint in this action. The plaintiffs, on the other hand, contend that the issue presented by the railroads' most recent application respecting the tariff between Texas City and Kenilworth has not become moot. We pass this question of mootness at the moment, in order that we may first scrutinize the question of jurisdiction.
It is the principal contention of the defendants that this Court, whether acting through a single Judge or three Judges, is without jurisdiction to stay the taking effect of a tariff of rates filed with the Commission, or to require the Commission to stay the taking effect of such tariff. In support of this contention the defendants rely principally upon 49 U.S.C. § 15(7) and 5 U.S.C. § 1009(e), as construed in Luckenbach Steamship Co., Inc. v. United States, D.C.Del.1959, 179 F.Supp. 605, vac. and rem. 1960, 364 U.S. 280, 80 S. Ct. 1611, 4 L. Ed. 2d 1719. Where agency action is committed to agency discretion, there may be no judicial review. Luckenbach, supra; United States v. Wiley's Cove Ranch, 8 Cir. 1961, 295 F.2d 436, 440-441; Schilling v. Rogers, 1960, 363 U.S. 666, 80 S. Ct. 1288, 4 L. Ed. 2d 1478; Panama Canal Co. v. Grace Line, Inc., 1958, 356 U.S. 309, 78 S. Ct. 752, 2 L. Ed. 2d 788; Z. & F. Assets Realization Corp. v. Hull, 1941, 311 U.S. 470, 61 S. Ct. 351, 85 L. Ed. 288; Heiner v. Diamond Alkali Co., 1933, 288 U.S. 502, 53 S. Ct. 413, 77 L. Ed. 921; Sellas v. Kirk, 9 Cir. 1952, 200 F.2d 217, cert. den. 345 U.S. 940, 73 S. Ct. 831, 97 L. Ed. 1366; Lehr v. United States, 5 Cir. 1943, 139 F.2d 919.
A threshold question requires resolution in the instant proceeding. The complaint in this action prayed for the constitution of a Three-Judge Court, which was duly constituted in accordance with that prayer. This Court's order of October 2, 1963 was filed by a single Judge, acting in behalf of that Three-Judge Court, in implementation of the stipulation of September 30, 1963, which had been then entered into by all of the parties then before the Court. The order to show cause of July 31, 1964 and order of August 11, 1964, permitting Monsanto to intervene, were also signed by the same single Judge, but acting independently of the previously constituted Three-Judge Court. The arguments on return of the order to show cause were heard by the same single Judge. 28 U.S.C. § 2284(3) authorizes the District Judge to whom an application for an interlocutory judgment is made to grant a temporary restraining order to prevent irreparable damage. The pending order to show cause contains such a temporary restraint; but subsection (4) of that Section requires the concurrence of two Judges in granting the application. However, Section 2284(5) empowers any one of the three Judges of the Court to 'perform all functions, conduct all proceedings except the trial, and enter all orders required or permitted by the rules of civil procedure.' But a single Judge may not 'hear and determine any application for an interlocutory injunction or motion to vacate the same, or dismiss the action, or enter a summary or final judgment. The action of a single judge shall be reviewable by the full court at any time before final hearing.' In Eastern States Petroleum Corp. v. Rogers, etc., 1960, 108 U.S.App.D.C. 63, 280 F.2d 611, cert. den. 1960, 364 U.S. 891, 81 S. Ct. 222, 5 L. Ed. 2d 187, 28 U.S.C. § 2284(1) and (5) were considered and the Court (280 F.2d pp. 615-616) cited and followed Jacobs v. Tawes, 4 Cir. 1957, 250 F.2d 611, as authority for the rule that 'a single judge may dismiss an application for a three-judge court if the district court, no matter how constituted, lacks jurisdiction. * * * Chief Judge Prettyman, in an earlier phase of * * * (the then pending) litigation, reached the same conclusion. 1959, 105 U.S.App.D.C. 219, 265 F.2d 593. As these decisions make clear, the provision of § 2284 precluding single-judge dismissal, along with the other procedural requirements of that section, becomes operative only after a three-judge court is convened. This is implied from the introductory passage of § 2284 * * *' In Oklahoma Gas Co. v. Oklahoma Packing Co., 1934, 292 U.S. 386, 391-392, 54 S. Ct. 732, 78 L. Ed. 1318, the Supreme Court said, in discussing the three-judge procedure: 'When it becomes apparent that the plaintiff has no case for three judges, though they may have been properly convened, their action is no longer prescribed, and direct appeal here must fail as well in this case as where the plaintiff does not press his injunction, * * * or his constitutional attack.' The Court of Appeals for the District of Columbia Circuit, in Lion Manufacturing Corp. v. Kennedy, 1964, 330 F.2d 833, held (pp. 840-841) that '* * * Section 2284 is addressed to the manner in which a three-judge court must function once it has been convened. It assumes jurisdiction in the District Court over the controversy, and its provisions come into play only when that jurisdiction exists. It remains for the judge who is asked to convene a three-judge court to determine whether jurisdiction exists in the District Court; and if he properly concludes there is no jurisdiction, his power to dismiss the complaint, as well as to deny the motion to convene a three-judge tribunal, is in no way circumscribed by Section 2284.' For the foregoing interpretation, the Court cites Eastern States Petroleum, supra, and Idlewild Bon Voyage Liquor Corp. v. Epstein, 1962, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794. In the latter case the plaintiff's request for a three-judge court was denied and the single District Judge to whom the request was made simply retained jurisdiction pending determination of constitutional issues in the State courts. On certiorari, the Supreme Court held that a three-judge court should have been convened and pointed out (370 U.S. p. 715, 82 S. Ct. p. 1296) that: 'When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.'
When the Three-Judge Court in this case was constituted as aforesaid, the complaint disclosed prima facie a cause of action requiring a three-judge court for its adjudication. It is now urged that, by reason of the withdrawal and cancellation by the railroads of the rates referred to in the complaint, the cause of action alleged therein has become moot. The new issue, which should have been presented by way of a supplemental or a separate new complaint, but which was tendered in the form of affidavits, evoked the temporary restraining order embodied in the order to show cause, which is clearly within the authorization of subdivision (3) of Section 2284. Upon the return of the order to show cause, for the first time it appeared, from exhibits presented in evidence, that this action, insofar as the complaint is concerned, had become moot, and that this Court, whether consisting of a single Judge or of three Judges, is without jurisdiction to grant the relief which the present movants seek.
The matter before me at this time is an order to show cause why relief not prayed for in the complaint should not be granted to the plaintiffs in the pending action, which has been referred to a Three-Judge Court under the statute. Section 2284(5) authorizes me, as a single Judge, to 'perform all functions, conduct all proceedings except the trial, and enter all orders required or permitted by the rules of civil procedure.' I have treated the foregoing quoted language as authorization for the disposition of the order to show cause by me, as a single Judge, despite the that a Three-Judge Court has been constituted in this case.
I conclude that the relief which the plaintiffs presently seek by way of order to show cause is not within the jurisdiction of this Court because the refusal of the Interstate Commerce Commission to suspend the rates most recently filed by the intervening railroad carriers is a matter exclusively within the sound discretion of the Commission and not susceptible of review by this Court. 49 U.S.C. § 15(7); I.C.C. v. Inland Waterways Corp., 1943, 319 U.S. 671, 63 S. Ct. 1296, 87 L. Ed. 1655; Benson v. United States, 1960, 108 U.S.App.D.C. 201, 281 F.2d 34, and cases cited ante. Whether this action should be dismissed for mootness I leave to the Three-Judge Court. See Mills v. Green, 1895, 159 U.S. 651, 653, 16 S. Ct. 132, 40 L. Ed. 293.
The order to show cause and restraint therein contained entered on July 31, 1964, is discharged and dissolved.