Opinion
Nos. 304, 403, Dockets 75-4209, 76-4103.
Argued September 24, 1976.
Decided November 18, 1976.
Robert L. Wright, Washington, D.C. (Arthur M. Wisehart, and Wisehart, Friou Koch, New York City, of counsel), for petitioner.
Edwin M. Zimmerman, Washington, D.C. (S. William Livingston, Jr., and Covington Burling, Washington, D.C., and Frank H. Gordon, and Rogers, Hoge Hills, New York City, of counsel), for intervenors.
Peter M. Shannon, Jr., Washington, D.C. (Arthur J. Cerra, Gen. Counsel, and Peter A. Fitzpatrick, Acting Associate Gen. Counsel, Interstate Commerce Commission, Washington, D.C., of counsel), for respondent Interstate Commerce Commission.
Thomas E. Kauper, Asst. Atty. Gen., Carl D. Lawson, and Catherine G. O'Sullivan, Dept. of Justice, Washington, D.C., for United States of America (on the brief).
Petition under 28 U.S.C. §§ 2321 and 2342(5) to review a 1959 order of the Interstate Commerce Commission and a related 1975 report and attendant orders of the Commission denied.
This petition to review concerns an order of the Interstate Commerce Commission in F.D. 20812 made on September 25, 1959, which would have been reviewable by a three-judge district court, and a report on further consideration, served August 29, 1975, which, if an "order," might be reviewable in this court. We find it unnecessary to determine where review lies since for the reasons stated in Judge Friendly's opinion in REA Express, Inc. v. Alabama Great Southern Railroad, 427 F.Supp. 1157 (S.D. N.Y., filed November 18, 1976), by a three-judge district court composed of the members of this panel, the petition must be denied on the merits.