267 F2d 659 Atlantic Coast Line Railroad Company v. Riss and Company

267 F.2d 659

105 U.S.App.D.C. 382

ATLANTIC COAST LINE RAILROAD COMPANY, Atchison, Topeka and
Sante Fe Railway Company et al., Petitioners,
v.
RISS AND COMPANY, Inc., Respondent.

No. 15019.

United States Court of Appeals District of Columbia Circuit.

May 19, 1959.

Mr. Francis M. Shea, Washington, D.C., with whom Messrs. Lawrence J. Latto and Richard T. Conway, Washington, D.C., were on the pleadings, for petitioner Atlantic Coast Line R. Co. and certain other petitioners, argued for all petitioners.

Mr. Charles T. Abeles, Richmond, Va., was also on the pleadings for Seaboard Air Line R. Co.

Mr. Henry L. Walker, Washington, D.C., was on the brief for the Southern Ry. Co. and certain other petitioners.

Messrs. Hugh B. Cox and James H. Mc.glothlin, Washington, D.C., were on the pleadings for the Baltimore & O.R. Co. and certain other petitioners.

Messrs. Stuart S. Ball, Richard J. Flynn and Joseph D. Feeney, Jr., Chicago, Ill., were on the pleadings for petitioner Atchison, T. & S.F. Ry. Co. and certain other petitioners.

Mr. J. Raymond Hoover, Washington, D.C., was on the pleadings for Grand Trunk Western R. Co. and Central Vermont Ry., Inc.

Messrs. H. Graham Morison and Newell A. Clapp, Washington, D.C., were on the pleadings for petitioner Louisville & N.R. Co.

Messrs. John D. Lane and Fred S. Gilbert, Jr., Washington, D.C., were on the pleadings for petitioners Boston & M.R. and New York, N.H. & H.R. Co.

Mr. Martin A. Meyer, Jr., Washington, D.C., was on the pleadings for petitioner Virginian Ry. Co.

Mr. Edward K. Wheeler, Washington, D.C., was on the pleadings for petitioners Chesapeake & O. Ry. Co. and New York Cent. R. Co.

Mr. Robert L. Wright, Washington, D.C., with whom Messrs. A. Alvis Layne, Jr. and Lester M. Bridgeman, Washington, D.C., were on the pleadings, for respondent.

Before BAZELON, BASTIAN, and BURGER, Circuit Judges, in chambers.

PER CURIAM.

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1

This case came on for consideration on petitioners' motion for leave to file a petition for writ of certiorari and on the petition for writ of certiorari and said motion and petition were argued by counsel.

2

It appearing that the petition for writ of certiorari has been lodged with the clerk, it is

3

Ordered by the court that the petition for writ of certiorari shall be filed.

4

In response to a previous petition of the same nature by the same petitioners, this court, on August 8, 1958, entered an order which, as clarified by an order entered on December 16, 1958, provided that the issue which petitioners seek to refer to the commission for initial consideration was required to be referred only if found by the District Court, in the exercise of a discretion based upon its knowledge of the case, to be the 'sole or dominant' issue in the case. In its opinion of January 16, 1959, supporting its order of January 26, 1959, the District Court concluded, inter alia, that the issue in question 'is in no sense the dominant, much less the sole, issue of this litigation.'

5

Our extraordinary jurisdiction under 28 U.S.C. 1651 (1952) to review by common-law writs the interlocutory orders of the District Court should be exercised only in very limited and unusual circumstances. We have examined carefully the contentions made by petitioners and have concluded that, in the circumstances of this case, it would not be in the best interests of sound judicial administration to review at this stage of the litigation the District Court's decision either by writ of certiorari or by the alternatively requested amendment or clarification of our orders of August 8, 1958, and December 16, 1958.

6

Therefore, it is Ordered by the court that the petition for writ of certiorari, or in the alternative, the motion for clarification of our orders of August 8, 1958, and December 16, 1958, is hereby denied.