remedies, and that the present actions are premature and should be dismissed. We agree.
Under the July 12, 1967 order of the Commission Board of Suspension the increased motor carrier rates were initially suspended until a specified date in February 1968, subject, however, to the further order of the Commission. Thereafter the tariff bureaus for the carriers, with the permission of the Commission, cancelled the said rates, and following such cancellation the Commission Board of Suspension entered an order in each case discontinuing the suspension proceeding. Under these circumstances we reject as without merit the claim of plaintiffs that the suspension order of July 12, 1967 is outstanding and should be "enforced".
When the tariff bureaus on behalf of the carriers republished the same rates, the Commission in a new proceeding, on the basis of a new record, declined to suspend the rates. This action was discretionary with the Commission under the Interstate Commerce Act. 49 U.S.C. § 15(7). Refusal of the Commission to suspend the rates is not judicially reviewable. Arrow Transportation Company v. Southern Railway Co., 372 U.S. 658, 10 L. Ed. 2d 52, 83 S. Ct. 984 (1963); Movers' & Warehousemens' Assn. v. United States, D.C.D.C., 227 F. Supp. 249 (1964); Carlsen v. United States, D.C.S.D.N.Y., 107 F. Supp. 398 (1952).
In the above cited Arrow case the Supreme Court held that Congress in giving the power of suspension of rates to the Commission "meant thereby to vest in the Commission the sole and exclusive power to suspend and to withdraw from the judiciary any pre-existing power to grant injunctive relief," and that the "more plausible inference is that Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction." (Italics in opinion.) 372 U.S. 658, 667, 668, 83 S. Ct. 984, 10 L. Ed. 2d 52.
The Commission's decision in each of the instant cases not to suspend the rates was necessarily only a preliminary determination. By complaint before the Commission as provided in the Interstate Commerce Act, the plaintiffs might have challenged the lawfulness of the rates. 49 U.S.C. §§ 13, 15. But they failed to exhaust the statutory remedies afforded them. No final agency action subject to judicial review was obtained by the plaintiffs before they sought to invoke the jurisdiction of this court.
Accordingly as to each of the two cases before the court, the complaint is dismissed.