550 F2d 1342 Rea Express Inc v. Interstate Commerce Commission

550 F.2d 1342

REA EXPRESS, INC., Petitioner,
INTERSTATE COMMERCE COMMISSION and United States, Respondents,
Alabama Great Southern Railroad Company et al., Intervenors.

Nos. 304, 403, Dockets 75-4209, 76-4103.

United States Court of Appeals,
Second Circuit.

Argued Sept. 24, 1976.
Decided Nov. 18, 1976.

Robert L. Wright, Washington, D.C. (Arthur M. Wisehart, and Wisehart, Friou & Koch, New York City, of counsel), for petitioner.

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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).


Before FRIENDLY, Circuit Judge, and KNAPP and GRIESA, District Judges.*



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.


Of the United States District Court for the Southern District of New York, sitting by designation