Opposition Brief — Interstate Commerce Commission v. United Transportation Union

No. 88-711

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

INTERSTATE COMMERCE COMMISSION,

- Petitioner,

UNITED TRANSPORTATION UNION,

BURLINGTON NORTHERN RAILROAD COMPANY,

and

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF RESPONDENT

RAILWAY LABOR EXECUTIVES’ ASSOCIATION

IN OPPOSITION TO PETITION

WILLIAM G. MAHONEY

JOHN O’B. CLARKE, JR.*

HIGHSAW & MAHONEY, P.C.

Suite 210

1050 17th Street, N.W.

Washington, D.C. 20036

(202) 296-8500

Attorneys for Respondent

Railway Labor

Executives’ Association

Date: November 9, 1988 * Counsel of Record

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QUESTION PRESENTED

Does the Interstate Commerce Commission, which was

an intervenor in the appellate court in a case growing

out of a labor dispute, have standing to file a petition

for a writ of certiorari where it lacks a personal stake

in the outcome of the controversy, where the underlying

labor dispute has been resolved, and where the Solicitor

General has authorized neither its intervention below nor

its petition to this Court?

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TABLE OF CONTENTS

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SUmmaAnms OF ARGUMENTS .........................-..--.0s--0-

REASONS FOR DENYING THE WRIT .....

I.

Petitioner ICC Lacks Standing To Ask This

Court To Review The Eighth Circuit’s Decision

Since It Has Not Suffered A Legally Cognizable

Injury As A Result Of The Lower Courts’ Re-

fusal To Issue A Strike Injunction...

II. Petitioner ICC Lacks Standing To Ask This

Court To Review The Eighth Circuit’s Decision

Since The Solicitor General Has Not Author-

ized It To Intervene Below Or To File This

AE SS ED Se Oe OR cee ee

III. The Settlement Of The Strike Means That This

Case No Longer Presents A Justiciable Issue...

IV. This Case Does Not Present An Issue Which

Warrants Review By This Court At This Time.

CONCLUSION .....

APPENDICES

APPENDIX A—RLEA Member Organizations

APPENDIX B—ICC Motion to Intervene PE TIARAS

(ili)

Page

11

la

2a

iv

TABLE OF AUTHORITIES

CASES RELIED UPON: Page

Baker v. Carr, 369 U.S. 186 (1962) .........00000000000000.. 9

Chicago & North Western Transportation Com-

pany v. ee Labor Executives’ Association,

855 F.2d 1277 (7th Cir. 1988), pet. for cert.

pending, Sup. Ct. Re ot 6-7

Diamond v. Charles, 476 U.S. 54 (1986)... hosts 9,11

Order of Railroad Telegraphers v. Chicago &

North Western Ry., 362 U.S. 330 (1960)........ 14

Railway Labor Executives’ Association v. Pitts-

burgh & Lake Erie Railroad Company, 831 F.2d

1231 (3rd Cir. 1987), pet. for cert. pending,

RR RE ES Ee eons ato 13, 14

Sosna v. Iowa, 419 U.S. 393 (1975) ......................... 13

St. Joe Paper Co. v. Atlantic Coast Line R.R., 347

8 | RAR rate ens Ban ae 10

United Transportation Union v. Burlington North-

ern Railroad Company, 672 F. Supp. 1579 (D.

Mont. 1987), appeal pending, 9th Cir. No. 87-

NDS RN A As 28 WO A CAs SA, ROP Oe 3

Weinstein v. Bradford, 423 U.S. 147 (1975)........ 12, 13

Warth v. Seldin, 422 U.S. 490 (1975) ............0.0...... 9

STATUTES AND OTHER MATERIALS:

Ret Nes WI EE ae eee ee a 2,11

Interstate Commerce Act, 49 U.S.C. § 10101, et

a cccenrat ankacencccapiton ds omarion dnaitbiie oot ie eaten 5

Section 10101a(12), 49 U.S.C. § 10101a(12).. 5

Section 10505, 49 U.S.C. § 10505... 13

Section 10901, 49 U.S.C.§ 10901... 14

Norris-LaGuardia Act, 29 U.S.C. § 101, et seq. ...... 10

Section 4, 29 U.S.C. § 104 A ai ani 3, 5, 8, 14

Section 8, 29 U.S.C. § 108 ; veererent 8

Railway Labor Act, 45 U.S.C. § 151, et seq. _...._ 2,5, 6, 14

28 U.S.C. § 516 iso Be

28 U.S.C. § 519. OTTER! ARO LoS 12

28 U.S.C. § 1254(1) oe | |

28 U.S.C. § 2323 ee oomee 12

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1988

No. 88-711

INTERSTATE COMMERCE COMMISSION,

a Petitioner,

UNITED TRANSPORTATION UNION,

BURLINGTON NORTHERN RAILROAD COMPANY,

and

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF RESPONDENT

RAILWAY LABOR EXECUTIVES’ ASSOCIATION

IN OPPOSITION TO PETITION

On October 26, 1988, the Interstate Commerce Com-

mission [hereinafter, “ICC”? or “Commission’’] filed a

petition with this Court for a writ of certiorari to the

United States Court of Appeals for the Eighth Circuit

to review the decision of that court in Burlington North-

ern R.R. v. United Transportation Union, 848 F.2d 856

(8th Cir. 1988). Respondent Railway Labor Executives’

Association [hereinafter, “RLEA’’] ' respectfully submits

1 RLEA is an unincorporated association of the Chief Executive

Officers of nineteen (19) labor organizations which collectively

represent virtually all organized rail employees in this country. A

list of RLEA’s member organizations is attached hereto as Ap-

2

that the ICC’s petition should be denied, for the ICC

lacks standing to invoke this Court’s jurisdiction and,

even if that agency had standing, this case no longer

presents a live case or controversy nor merits review by

this Court at this time.

JURISDICTION

Respondent RLEA respectfully submits that this Court

does not have jurisdiction under 28 U.S.C. § 1254(1) to

grent the writ as requested by the ICC, for several rea-

sons. First, the ICC’s interest in this matter is not suf-

ficient to give it standing to seek the writ from this

Court. And second, this case no longer presents a live

case or controversy as required by Article III of the Con-

stitution of the United States.

COUNTERSTATEMENT OF THE CASE

As petitioner ICC noted in its petition, this case traces

its origin to a decision by the Burlington Northern Rail-

road Company [hereinafter, “BN’’] to lease and sell a

portion of its rail operations and properties to a newly-

formed railroad, Montana Rail Link, Inc. [hereinafter,

“MRL” }. Shortly after that transfer of operations ap-

peared imminent, respondent United Transportation

Union [hereinafter, “UTU”|, two other labor organiza-

tions and sixteen (16) individual employees filed a suit

with the United States District Court for the District of

Montana on July 30, 1987, against respondent BN to en-

join that transfer of rail operations. UTU v. BN, D.

Mont. Civil Action No. CV-87-73-H-CCL. Several days

after that suit was initiated, respondent RLEA filed a

complaint with the United States District Court for the

Western District of Missouri on August 6, 1987, against

respondent BN to enforce the Railway Labor Act, 45

U.S.C. § 151, et seqg.. which RLEA maintained the BN

was violating by transferring rail lines, including the

pendix A. Two of those member organizations, the United Trans-

portation Union and the Brotherhood of Locomotive Engineers, are

not participating in this response.

3

MRL line, without first complying with the labor stat-

ute’s notice, bargaining and status quo requirements.

RLEA v. BN, W.D.Mo. Civil Action No. 87-0696-CV-W-

8. Respondent BN counterclaimed against RLEA and

its individual member unions which represented BN em-

ployees seeking to enjoin any strike over those sales. On

September 18, 1987, that case was consolidated with an

earlier action which respondent BN had brought against

respondent UTU and another labor organization in 1986

to enjoin a strike over another sale of a BN rail line in

1986; 7.e., W.D.Mo. Civil Action No. 86-5013-CV-SW-8.

In October 1987, respondent UTU and the other plain-

tiffs in the Montana litigation asked that district court

to enjoin the transfer of the BN’s rail lines to MRL, but

on October 29, 1987, the court denied rail Jabor’s request.

UTU v. BN, 672 F. Supp. 1579 (D.Mont. 1987), appeal

pending, 9th Cir. No. 87-4386. Even though it concluded

that it could not enjoin the transfer of the rail lines, the

district court for the District of Montana observed that it

might not have jurisdiction by virtue of Section 4 of the

Norris-LaGuardia Act, 29 U.S.C. § 104, to enjoin a strike

over that transfer of rail lines. 672 F. Supp. at 1582-83

n.3.

Once that decision was issued, respondent BN trans-

ferred its rail line to MRL, and the UTU responded by

striking the BN. However, rather than asking the dis-

trict court that had heard and denied the UTU’s request

concerning the transfer of the rail line, to enjoin a strike

over that transfer, respondent BN asked the district

court for the Western District of Missouri to prohibit

the UTU, as well as all other labor organizations on the

BN, from striking. That request was made on October

30, 1987 and was granted; on November 4, 1987, the

court extended that Temporary Restraining Order until

November 16, 1987. However, respondent BN’s request

for a preliminary injunction was denied on November 16,

1987, for the court concluded that Section 4 of the Norris-

4

LaGuardia Act withdrew its jurisdiction to enjoin the

UTU’s strike.

Respondent BN immediately noted an appeal from that

order (subsequently docketed as 8th Cir. No. 87-2600)

and sought an injunction from the district court to pro-

hibit a strike pending appeal. That injunction request

was granted by the district court; respondent UTU and

“all persons acting in concert with” it were enjoined by

that order from striking pending the BN’s appeal. Re-

spondent UTU on November 25, 1987, filed a notice of

appeal from that interlocutory injunction order and that

notice was docketed by the Eighth Circuit as 8th Cir. No.

86-2581; thereafter, the two appeals were consolidated.

On December 15, 1987, respondent UTU’s request for a

stay of the injunction pending appeal was heard by a

panel of the Eighth Circuit and, after oral argument, the

appellate court directed that supplemental briefs be filed

by December 29, 1987.

On December 29, 1987, petitioner ICC filed a motion

with the Eighth Circuit to intervene in both appeals.

According to the ICC, its intervention was proper “be-

cause the litigation presents a serious issue affecting the

Commission’s jurisdiction over transfers and sales of rail

property within the nation’s rail transportation system.”

ICC Motion To Intervene in support of BN, App. B at 3a

(the ICC’s motion to intervene is reproduced herein as

Appendix B). Moreover, according to the ICC, its inter-

vention was a matter of right in order “to protect its

exclusive and plenary jurisdiction.” App. B at 3a-4a.

Petitioner ICC did not claim that its right to intervene

was conferred by any specific statutory authority, nor did

it assert that the Attorney General had authorized it to

intervene through its own attorneys. That motion was

granted on December 30, 1987.7

*“RLEA wes not asked whether it would consent to the ICC’s

intervention before that motion was filed. RLEA, however, did not

file an opposition to that motion to intervene, nor did it seek recon-

sideration of the intervention order.

5

No further arguments were heard by the Eighth Cir-

cuit, and on May 31, 1988, the panel which had heard

oral argument on the UTU’s motion to suspend the in-

junction pending appeal, entered its ruling on the merits

of both appeals.* After noting the purposes of both the

Railway Labor Act, 45 U.S.C. § 151, et seq., and the

Interstate Commerce Act, 49 U.S.C. § 10101, et seq., the

court concluded that there was an overlap of the two

statutes in the area of rail sales, for, aceording to the

panel, the transportation Act was intended “to prevent

labor strife by assuring ‘fair wages and working condi-

tions in the railroad industry.’” Pet. at 26a, quoting 49

U.S.C. § 10101a(12). “In these narrow circumstances,”

the panel stated, “the ICA supersedes the authority of

the mandatory bargaining provisions of the RLA which

provide an essentially duplicative or overlapping process

designed to reach labor protective agreements.” Pet. at

26a. Section 4 of the Norris-LaGuardia Act, a majority

of the panel concluded, stood on a different footing and

was not superseded by the transportation statute. As

the majority explained (Pet. at 30a):

In examining the impetus behind the recent deregu-

latory efforts in the railroad industry, Congress has

sought to free the union-management relationship

from time-consuming, “process oriented” bureau-

cracy imposed by various regulatory statutes and to

allow the sagacious invisible hand of the free mar-

ket economy to reorder rapidly that industry’s eco-

nomic difficulties. Thus, while we agree with BN’s

contention that enforcing the mandatory bargaining

provisions of the RLA might render the changes in

3 RLEA filed an appearance as appellee in the BN’s appeal from

the denial of its motion for a preliminary injunction; RLEA did not

file an appearance in the UTU’s appeal from the injunction pending

appeal because it viewed that injunction as being ancillary to the

BN’s appeal and not appealable in its own right. RLEA filed a

brief as an appellee in the BN’s appeal and a response to the request

fur rehearing.

6

the ICA without much practical force, we find .. .

no inherent incompatibility between these actions

and Norris-LaGuardia.

The appellate court, with Circuit Judge Fagg dissenting,

affirmed the district court’s decision denying the BN’s

request for a preliminary injunction and dissolved the

strike injunction pending appeal. Pet. at 3la-32a.

Respondent BN filed a petition for rehearing and a

suggestion for rehearing en banc, but on September 16,

1988, the panel denied the rehearing request. Also, the

suggestion for rehearing en banc was denied, for only

four of the active Circuit Judges voted to hear the case

en banc.* Pet. at 12a-13a.*

Once the court denied the BN’s rehearing request,

respondent BN sought to continue the strike injunction,

first by asking the appellate court to stay the mandate

and then, when that request was denied, by asking Jus-

tice Blackmun to recall the mandate. That request was

denied by Justice Blackmun on October 4, 1988. Sup.

Ct. No. A-258, BN v. UTU. Respondent BN then filed

a motion with the district court for the Western District

of Missouri on October 4, 1988, for a preliminary in-

junction to enjoin a strike by the UTU “and all persons,

agents, representatives, organizations, and members act-

ing directly or indirectly on their behalf ....” BN Mo-

tion, served October 4, 1988, at 2. Respondent BN main-

tained that the district court could enjoin a strike by the

UTU, because the underlying dispute—i.e., whether the

BN could sell before it bargained—was a “minor dis-

pute” under the Railway Labor Act. See, Chicago &

* Judge Fagg was not one of the judges who voted for rehearing

en banc.

* Even though the ICC filed a pleading styled a petition for re-

nearing, the Eighth Circuit’s order and amended order denying

rehearing did not reflect that the court considered the ICC to have

made such a request. Pet. at 12a-13a.

a f

‘

North Western Transportation Co. v. RLEA, 855 F.2d

1277 (7th Cir. 1988), pet. for cert. pending, Sup. Ct.

No. 88-464.

That motion was heard by the district court on Octo-

ber 4, 1988, but no decision was entered. Instead, the

parties were directed to report to the court on October

11, 1988 concerning “the status of negotiations” between

BN and UTU and whether a strike was imminent. Or-

der of district court dated October 6, 1988 in W.D. Mo.

Nos. 86-5013-CV-SW-8 and 87-0696-CV-W-8. On October

11, 1988, respondents BN and UTU informed the district

court that they had “reached a tentative agreement” con-

cerning the “effect on UTU employees” from the MRL

transfer, and “if details can be finalized are hopeful that

a final agreement can be reached soon.” Joint Status Re-

port filed October 11, 1988, at 2. Respondents BN and

UTU stated further: “Because of the status of this mat-

ter, UTU will not authorize a strike.” Id.

A subsequent status report was filed with the district

court by the BN, UTU, RLEA and the Brotherhood of

Locomotive Engineers on November 1, 1988. In that

status report, the Court was informed that:

Burlington Northern and United Transportation

Union, who had arrived at an agreement in prin-

ciple prior to the last oral status report, believe they

have now arrived at an agreement upon all or most

of the details of a compromise of their dispute re-

lating to Montana Rail Link. The parties [i.¢., BN

and UTU] are circulating a written proposal spell-

ing out the details of their compromise agreement

and hope to have same agreed upon in final form

and fully executed by November 10, 1988.

Joint Status Report filed November 1, 1988 at 2. The

parties further informed the court that: UTU “has

agreed not to take any strike action prior to 00001 A.M.

November 12, 1988, pending and in anticipation of the

propesed voluntary compromise.” /d.

8

Counsel for RLEA has been informed that the agree-

ment has been reached and signed by both parties and

that part of the final agreement requires both BN and

UTU “to withdraw and dismiss with prejudice all claims,

complaints, appeals, demands and lawsuits which in any

way contest the legality, effect or impact of BN’s sale

and lease of trackage to MRL.” Settlement Agreement

and Release, signed November 3, 1988, at Art. VI.* In

particular, the BN and UTU (id.):

[W]ill withdraw and dismiss with prejudice any

claims or causes of action concerning BN’s sale and

lease of trackage to MRL that are pending in Rail-

way Labor Executives’ Association v. Burlington

Northern Railroad Company v. RLEA, et al., No.

87-0696-CV-W-8 consolidated with No. 86-5013-CV-

SW-8; [and] any further appeals from Burlington

Northern Railroad Company v. UTU, Nos. 87-2581

WM and 87-2600 WM (8th Cir. 1988) ....

In the meantime, the ICC filed this petition with this

Court. However, the Solicitor General has not authorized

that agency to file this petition. See, Brief for United

States as Amicus Curiae at 19 n.16 in Sup. Ct. Nos. 87-

1589 and 87-1888, Pittsburgh & Lake Erie R.R. v.

RLEA.

SUMMARY OF ARGUMENTS

Petitioner ICC is an unauthorized interloper in the labor

dispute which was before the Eighth Circuit. That dis-

pute arose out of a controversy concerning a railroad’s

obligation to bargain with rail labor and involved the

issue of whether Sections 4 and 8 of the Norris-

LaGuardia Act, 29 U.S.C. §§ 104, 108, withdrew juris-

diction from the federal courts to enjoin, at BN’s request,

® Counsel for RLEA has been informed that this agreement has

been signed by both parties, but at present has been provided solely

with a copy of the agreement signed by the UTU. Therefore, RLEA

cannot state with absolute assurance that the agreement has been

finalized. Counsel will continue to attempt to verify the status of

the settlement and will inform the Clerk’s office of any change.

9

a strike arising out of that controversey. Petitioner ICC

is interested in that dispute solely because of its in-

cidental effect on the BN’s willingness to transfer rail

lines which are the subjects of ICC orders, and thus, the

Commission does not have a sufficient interest in this dis-

pute to give it standing to invoke this Court’s jurisdiction

under 28 U.S.C. § 1254(1). Moreover, the ICC lacks

standing to invoke this Court’s jurisdiction since the So-

licitor General has not authorized the Commission to file

this petition or to intervene below. But even if it were

assumed arguendo that the ICC had standing below, the

settlement of the controversy which had led to the UTU’s

strike means that this proceeding no longer presents a

live case or controversy. And finally, the issue presented

by this case does not warrant review by this Court at this

time.

REASONS FOR DENYING THE WRIT

I. Petitioner ICC Lacks Standing To Ask This Court

To Review The Eighth Circuit’s Decision Since It Has

Not Suffered A Legally Cognizable Injury As A Re-

sult Of The Lower Courts’ Refusal To Issue A Strike

Injunction

It is axiomatic that this Court does not have jurisdic-

tion to issue advisory opinions, but rather, may act only

in cases which present an actual “case or controversy.”

E.g., Warth v. Seldin, 422 U.S. 490, 498-99 (1975). One

aspect of this constitutional limitation on this Court’s

jurisdiction is the “constitutional dimension” of the

standing requirement which requires the person invoking

this Court’s jurisdiction to show “ ‘such a personal stake

in the outcome of the controversy’ as to warrant his in-

vocation of federal-court jurisdiction and te justify exer-

cise of the court’s remedial powers on his behaif.”’ 422

U.S. at 498-99, quoting Baker v. Carr, 369 U.S. 186, 204

(1962) (emphasis in original). In this case, RLEA re-

spectfully submits, the ICC lacks such a personal stake

in this controversy as to warrant its invocation of this

Court’s jurisdiction. Diamond v. Charles, 476 U.S. 54

(1986).

10

Petitioner ICC informed the court of appeals that it

needed to intervene because the issue involved in this

case—i.e.. whether a federal court, notwithstanding the

strictures of the Norris-LaGuardia Act, 29 U.S.C. § 101,

et seq., could enjoin a strike in a labor dispute arising

from a refusal of a railroad to bargain over the impact

on employees of a sale or other transfer of rail assets

subject to the regulatory jurisdiction of the ICC—

presented a “serious issue affecting the Commission’s

jurisdiction over transfers and sales of rail property

within the nation’s rail transportation system.” App. B

at 3a.

While the ICC may have been concerned about the im-

pact which the issue presented to the appellate court

might have on its ability to discharge its responsibilities,

the actual case or controversy in which that issue arose

did not involve the ICC directly. nor did it involve either

a direct or even an arguable collateral attack on an ICC

order. Here, the BN did transfer its rail properties to

MRL and that transfer was completed before the litiga-

tion arrived in the appellate court. Thus, the strike can-

not be viewed as threatening the consummation of the

transfer exempted from regulation by the ICC exemption

order. Moreover, since the ICC did not, and still does not,

have the power to compel the BN to transfer its rail

lines pursuant to an exemption (accord, St. Joe Paper

Co. v. Atlantic Coast Line R.R., 347 U.S. 298 (1954) ),

whether or not the UTU can use its non-judicial, eco-

nomic powers to persuade the BN to reconsider the terms

of, or even its decision to transfer its properties to MRL,

cannot be viewed as a “collateral attack” on the ICC’s

exemption. Surely, therefore, the question of whether

federal courts have jurisdiction to enjoin such a strike

cannot be viewed as presenting a collateral attack on the

ICC’s exemption. In short, since no order of the ICC was

attacked either directly or collaterally, the ICC lacked a

personal stake in the outcome of this controversy of a

degree which would give it standing to seek to enjoin the

UTU’s previously threatened strike.

11

Petitioner ICC cannot overcome its lack of standing

by asserting that its status as an intervenor before the

court of appeals allows this Court to dispense with the

standing requirement, or stated another way, its role as

an intervenor a fortiori satisfies the standing require-

ment. In Diamond v. Charles, supra, this Court ad-

dressed a comparable automatic standing assertion and

stated: “Although intervenors are considered parties en-

titled, among other things, to seek review by this Court,

. .. an intervenor’s right to continue a suit in the absence

of the party on whose side intervention was permitted is

contingent upon a showing by the intervenor that he ful-

fills the requirements of Art. III.” 476 U.S. at 68. Here,

the BN has not, and, this Court has been informed, will

not file its cwn petition for a writ of certiorari in this case.

See, Letter of Counsel for BN to this Court, dated No-

vember 8, 1988, in No. 88-711. Consequently, the ICC

cannot rely upon the BN’s standing to give this Court

Article III jurisdiction. And since the ICC lacks con-

stitutional standing on its own, its petition does not

present a justiciable case or controversy.

II. Petitioner ICC Lacks Standing To Ask This Court To

Review The Eighth Circuit’s Decision Since The Solici-

tor Genera! Has Not Authorized It To Intervene Below

Or To File This Petition

In its petition, the ICC notes that its authority to in-

tervene below and its status as a proper party before

this Court may be raised as an issue in this case. Pet.

at 10. That prediction is accurate, for RLEA is raising

that question.

Respondent RLEA notes that the Solicitor General has

informed this Court that he did not authorize the Com-

mission to intervene before the Eighth Circuit or to file

its petition with this Court. Brief for United States as

Amicus Curiae in Nos. 88-1589 and 87-1888, supra, at.

19 n.16. Consequently, the ICC does net have standing

to invoke this Court’s jurisdiction, for 28 U.S.C. § 516

gives the Attorney General the responsibility to conduct

12

“litigation in which the United States, [or] an agency

. is a party, or is interested... .” 28 U.S.C. § 516.

Moreover, 28 U.S.C. § 519 gives the Attorney General

the authority to “supervise all litigation to which the

Unite? States, [or] an agency ...is a party... .” 28

U.S.C. § 519.

Those general provisions apply and preclude unauthor-

ized intervention or participation by the ICC unless that

participation is ‘otherwise authorized by law.” 28 U.S.C.

$$ 516, 519. Here, however, the ICC’s participation is

not “otherwise authorized” by any statute, for the statu-

tory provision upon which the ICC has primarily relied,

28 U.S.C. § 2323, at best authorizes the ICC to appear

“in any action involving the validity of” an ICC order.’

28 U.S.C. § 2323. A suit to enjoin a strike does not in-

volve the validity of an ICC exemption.

Since the Solicitor General has not authorized the ICC

to participate before the Eighth Circuit or to file its peti-

tion in this proceeding, the Commission lacks standing to

invoke this Court’s jurisdiction under 28 U.S.C.

§ 1254(1).

Ill. The Settlement Of The Strike Means That This Case

No Longer Presents A Justiciable Issue

At present it appears that the UTU has reached an

agreement with the BN over the specific transfer of BN

rail lines which led to the strike that was the subject of

the litigation in which the ICC intervened. That agree-

ment means that there is no longer a strike threat in

this case and, thus, this case no longer presents a live

case or controversy. F.g., Weinstein v. Bradford, 423

U.S. 147 (1975).

Petitioner cannot escape the mootness of this case by

asserting that the situation presented here is “capable of

7RLEA submits that § 2323 does not authorize ICC intervention

in collateral attack cases. See, Brief for RLEA in Opposition To

Petition in No. 88-217, ICC v. Pittsburgh & Lake Erie R.R., at 6-7.

ee |

13

repetition, yet evading review,” for the continued via-

bility of RLEA v. Pittsburgh & Lake Erie R.R., 831

F.2d 1231 (3rd Cir. 1987), pet for cert. pending, Sup.

Ct. No. 87-1589, shows that the challenged action is not

of such a limited duration that its validity cannot be

“fully litigated prior to its cessation or expiration... .”

Weinstein v. Bradford, supra, 423 U.S. at 149. As this

Court stated in Sosna v. Iowa, 419 U.S. 393, 402 (1975):

In cases in which the alleged harm would not dis-

sipate during the normal time required for resolution

of the controversy, the general principles of Art. III

jurisdiction require that the plaintiff’s personal stake

in the litigation continue throughout the entirety of

the litigation.

As shown above, the ICC never had a judicially cog-

nizable personal stake in the outcome of this case. But

even if it did, that personal stake surely ended when the

UTU settled with the BN and no longer threatened to

strike over the completed MRL transaction. Conse-

quently, the Commission’s exemption order cannot be said

to be endangered and, therefore, its petition in this case

presents only an academic issue.

IV. This Case Does Not Present An Issue Which Warrants

Review By This Court At This Time

This case presents essentially the same issue as pre-

sented by No. 87-1589, Pittsburgh & Lake Erie R.R. v.

RLEA, in which RLEA has filed a response acknowledg-

ing the importance of the issue, but asserting that the

issue need not be reviewed by this Court at this time for

several reasons. RLEA continues to maintain that its

response to No. 87-1589 is correct, and that there is no

need for this Court to review the specific accommodation

question presented by both No. 87-1589 and this petition

at this time.

First, there is no conflict among the circuits on the

conclusion that an ICC exemption order under 49 U.S.C.

$ 10505 of a sale of a rail line which, but for that exemp-

14

tion, would have been subject to regulation by the ICC

under 49 U.S.C. § 10901, does not restore to the federal

courts the equity jurisdiction which Section 4 of the

Norris-LaGuardia Act has withdrawn. Moreover, the

lower courts’ conclusion on this point is entirely con-

sistent with the anti-injunction Act, its legislative his-

tory, and prior decisions by this Court such as Order of

Railroad Telegraphers v. Chicago & North Western Ry,.,

362 U.S. 330 (1960). And finally, the need to strike oe-

curs in these line sale cases only because the carriers re-

fuse to bargain and to maintain the status quo during

that bargaining process. If this Court concludes that the

Railway Labor Act requires a carrier both to bargain

and to maintain the status quo, then there will be no need

to address the Norris-LaGuardia Act issue because there

should be no strikes. However, unlike No. 87-1589, in

which RLEA suggested that the Court withhold acting on

that petition until the underlying conflict of laws issue

was resolved, RLEA submits that there is no need to

defer action on this petition because of the standing

and mootness problems.

CONCLUSION

For the reasons set forth herein, respondent RLEA

respectfully submits that this Court should deny the

ICC’s petition.

Respectfully submitted,

WILLIAM G. MAHONEY

JOHN O’B. CLARKE, JR.*

HIGHSAW & MAHONEY, P.C.

Suite 210

1050 17th Street, N.W.

Washington, D.C. 20036

(202) 296-8500

Attorneys for Respondent

Railway Labor

Executives’ Association

Date: November 9, 1988 * Counsel of Record

APPENDICES

la

APPENDIX A

Railway Labor Executives’ Association

Member Organizations

American Railway & Airway Supervisors Association

(Division of TCU) ;

American Train Dispatchers Association ;

Brotherhood of Locomotive Engineers;

Brotherhood of Maintenance of Way Employes;

Brotherhood of Railroad Signalmen;

Brotherhood Railway Carmen ( Division of TCU) ;

Hotel Employees and Restaurant Employees Interna-

tional Union;

International Association of Machinists and Aerospace

Workers:

International Brotherhood of Boilermakers, Iron Ship

Builders, Blacksmiths, Forgers and Helpers;

International Brotherhood of Electrical Workers;

International Brotherhood of Firemen & Oilers;

International Longshoremen’s Association ;

National Marine Engineers’ Beneficia! Association ;

Railroad Yardmasters of America (Division of UTU);

Seafarers International Union of North America;

Sheet Metal Workers’ International Association;

Transport Workers Union of America;

Transportation®*Communications Union (TCU) ; and

United Transportation Union.

2a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 87-2600WM

BURLINGTON NORTHERN RAILROAD Co.

i Appellant

UNITED TRANSPORTATION UNION

Appellee

No. 87-2581WM

UNITED TRANSPORTATION UNION

. Appellant

BURLINGTON NORTHERN RAILROAD Co.

Appellee

{Filed December 29, 1987]

[Granted, December 30, 1987]

MOTION OF THE INTERSTATE COMMERCE

COMMISSION TO INTERVENE IN SUPPORT

OF THE APPELLANT IN NO. 87-2600WN AND

APPELLEE IN NO. 8-2581WM

3a

These appeais raise the issue of whether the Norris

La Guardia Act, 29 U.S.C. § 101 et. seg. (NLGA) with-

draws jurisdiction from the courts to enjoin a strike

designed to block the consummation of a transfer of rail

properties previously authorized by the Interstate Com-

merce Commission (Commission) pursuant to the Inter-

state Commerce Act. 49 U.S.C. § 10101 et. seg. (ICA).

The United Transportation Union (UTU) appellant in

Docket No. 87-2581WM seeks to reverse a district court

order granting an injunction pending appeal. BN, ap-

pellant in Docket No. 87-2600WM, seeks an order re-

versing the district court’s order denying BN’s request

for a preliminary injunction against a threatened strike

of BN by UTU.

The Interstate Commerce Commission, by and through

its undersigned attorneys, hereby moves to intervene in

support of the appellant in No. 87-2600WM and appellee

in No. 87-2581WM pursuant to rule 27 Federal Rules

of Appellate Procedures. The Commission should be au-

thorized to intervene because the litigation presents a

serious issue affecting the Commission’s jurisdiction over

transfers and sales of rail property within the nation’s

rail transportation system. Any resolution that holds the

NLGA superior to the ICA impinges on the Commission’s

ability te administer the Act and denies to the Commis-

sion the exclusive and plenary jurisdiction over all as-

pects of the sale or transfer of rail properties confirmed

upon it by Congress. The exclusive and plenary nature

of the Commission’s authority has been held to override

the provisions of the NLGA to the extent necessary to

carry into effect the order of the Commission permitting

the transaction. Missouri Pacific R.R. Co. v. UTU, 782

F.2d 107 (8th Cir. 1986), cert. denied, 107 S.Ct. 3209

(1987). See also BLE v. Chicago & N.W. Ry., 314 F.2d

424 (8th Cir.) cert. denied, 375 U.S. 819 (1963).

The Commission must be allowed to intervene as a

matter of right to protect its exclusive and plenary juris-

4a

diction. Cf. Telecommunications Research and Action

Center v. FCC, 750 F.2d 70, (D.C. Cir. 1984). Rule

24(a)(2) Federal Rule of Civil Procedure, the basic

standard for granting intervention, permits intervention

of right “when the applicant claims an interest relating

to the... transaction which is the subject of the action

and he is so situated that the disposition of the action

may as a practical matter impair or impede his ability

to protect that interest, unless the applicant’s interest

is adequately represented by existing parties.” Liddel v.

Caldwell, 546 F.2d 768, 700 (8th Cir. 1976) cert. denied

sub nom. St. Louis Board of Education v. Caldwell, 433

U.S. 14, (1977). The UTU’s position strikes at the heart

of the ICC authority over the sale of rail lines in this

country—authority given to the Commission by Congress

as an aid to the Commission’s implementation of the Na-

tional Transportation Policy and the ICC’s operating

Statutes.

Only full intervention will permit the Commission ade-

quately to protect its interests in these proceedings. Fur-

ther, the rule governing intervention is to be liberally

construed. Any doubt should be resolved in favor of al-

lowing intervention. Arkansas Electric Energy Consum-

mers uv. Middle South Energy Co., 772 F.2d 401 (8th

Cir. 1985). See Trbovich v. United Marine Workers of

America, 404 U.S. 528, 538 fn.10 (1971) where the

court announced that the rule is satisfied if the applicant

shows that representation of his interest may be inade-

quate; and the burden of making that showing should be

treated as minimal.

The Commission’s interests in this litigation differ

from those of the private parties. The Commission

claims exclusive and plenary jurisdiction over the trans-

action at issue here. The ICC has a legitimate interest in

protecting its claim which entitles the agency te inter-

vention, Newport News Shipbuilding & Drydock Co. v.

Peninsula Shipbuilders, 646 F.2d 117, 121 (4th Cir.

5a

1981). In any event, the Commission is the only person

before the court charged with protecting the public in

connection with authorizing the transaction out of which

the instant litigation arose. Finally, only full intervenor

status will afford the Commission the right to appeal any

adverse decision by this court.

CONCLUSION

For the foregoing reasons, the motion of the Inter-

state Commerce Commission to intervene should be

granted.

Respectfully submitted,

ROBERT S. BURK

General Counsel

HENRI F. RUSH

Deputy General Counsel

/s/ Clyde J. Hart, Jr.

CLYDE J. HART, JR.

Attorney

Interstate Commerce Commission

12th & Constitution Ave., N.W.

Room 5211

Washington, D.C. 20423

(202) 275-1851

[Certificate of Service Omitted in Printing]