Appellees Reply Brief — Railway Labor Executives' Assn. v. Gibbons

Office - Supreme Court, us

FILED

Nos, 80-415 and 80-1239 NOV 25 1981

An the Supreme Court of the Hnite

OcTOBER TERM, 1981

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, APPELLANT

Vv.

WILLIAM M. GIBBONS, TRUSTEE, ET AL.

ON CONSOLIDATED APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS AND THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THF FEDERAL APPELLEES

+

Rex E. Lee

Solicitor General

Depariment of Justice

Washington, D.C. 20530

(202) 633-2217

RICHARD A. ALLEN

General Counsel

Interstate Commerce Commission

Washington, D.C. 20423

TABLE OF AUTHORITIES

Cases:

Rrooks-Svanion Co. v. Railroad Commission,

BE ED Sbes cocedeovenetcccdossedves ES

Chicago, Rock Island & Pacific R. R.,

Nos. 80-1788, 80-2199 and 80-2286 (7th Cir.

Cot. 13, DBI) wcccccscscccccccccccccccvcces 5

Continental Illinois National Bank & Trust Co.

v. Chicago Rock Island & Pacific Ry.,

BPO Ui GO bee nicdescccccccccsccccvccece 6

Dames & Moore v. Regan, No. 80-2078

(Fully 2, IFC1) wccccccccccccccccccccvceceses 8

Gibbons v. United States, 660 F.2d 225 ........ 3

Gibbons v. United States, Nos. 80-2009,

80-2010, 80-2455 and 81-1026 (7th Cir.

GE, Bis COMED cocccccdccceccccsccccdececece 3

Hanover National Bank v. Moyses,

POO We BBE ccctcdebesccccccsvccecccccecnes 6

Hodel vy. Virginia Surface Mining & Reclamation

Association, Nos. 79-1538, 79-1596

COMMIS TD, BOOED cccvcccccncccecccnccceces 6, 10

Hooe v. United States, 218 U.S. 322 ......6055 10

Lehigh & New England Ry. v. ICC, 540 F. 2d

71, cert. denied, 429 U.S. 1061 ....... cece ees 2

New Haven Inclusion Cases, 399 U.S. 392 ....... 2

New York, Susquehanna & Western R. R.,

504 F. Supp. 851, aff'd per curiam, No. 80-1121

CoE BOTs BOL CPOE) cocccbcessececccocees 7

Page

Cases—(Continued):

Pope v. United States, 323 U.S. 1 cece eee ee eees 8

Railroad Retirement Board vy. Alton R. R.,

DE SE Ses edvccccesssncavessdeceneses 9

Regional Rail Reorganization Act Cases,

WE BOE ereenbocscccsdcchnepsere cet 6, 10

United States v. Klein, 80 U.S. (13 Wall.)

DES eUnde COLER Medes rea baSebiweebeeccenees 7

United States v. Lowden, 308 U.S. 225 ....... 4,6

United States v. Sioux Nation of Indians,

EEE BEE ccuabecuvoevatarsesveccceseecs x

Usery v. Turner Elkhorn Mining Co.,

DPE GUbedbusdvocescocccecsancesceess 9

Valuation Proceedings Under §§ 303(c) & 306

of the Regional Rail Reorganization Act, In re,

439 F. Supp. 135) ...cccccccccccccvvvccvves 2

Youngstown Sheet & Tube Co. v. Sawyer,

DPE su bebe cheb tcccccodsovonrsess 10

Constitution, statute and rules:

United States Constitution:

Article I, Section 8, Clause 3

(Commerce Clause) .......eseeeseeeeees 6

Article I, Section 8, Clause 4 .........0 00 6

Fifth Amendment:

Ee PPOONNS CHBUSE oc ccc cccccccccece 7,8,9

Just Compensation Clause .........eeeeees 9

28 U.S.C. 2101(a) ..... eee elaine

Page

Constitution, statute and rules—(Continued):

Fed. R. App. P.:

TEP EEE. vos veces bbcedvececieccecsosoccs l

DE cet adadbbsccesesrenesdoocees l

wok A PPP reTTrrrerrrrerrre eee 2

Miscellaneous:

Advisory Comm. Note to Fed. R. App. P. 4(a)(4),

2B U.S.C. (Supp. TIE)... cccccccccccccccccecs 2

H.R. Conf. Rep. No. 1041, 96th Cong., 2d Sess.

DTS GShdehSUSRESE COS es beer ses estense 6-7

H.R. Conf. Rep. No. 96-1430, 96th Cong., 2d Sess.

Rae Gube ri eedeesusdvetcerbecveenes 4,7

H.R. Rep. No. 96-839, 96th Cong., 2d Sess.

SUE SuGbSeebovcdetdecescecscreccescccces 5

In the Supreme Court of the Hnited States

OcTOBER TERM, 1981

Nos. 80-415 and 80-1239

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, APPELLANT

Vv.

WILLIAM M. GIBBONS, TRUSTEE, ET AL.

ON CONSOLIDATED APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS AND THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE FEDERAL APPELLEES

1. The private appellees’ contention (Br. 2-3) that this

Court lacks jurisdiction of the appeal in No. 80-415 is

without merit. Both the notice of appeal and the jurisdic-

tional statement were timely filed in accordance with 28

U.S.C. 2101(a) and the Rules of this Court. The Federal

Rules of Appellate Procedure, on which the private appel-

lees rely, apply to appeals to the courts of appeals, not to

this Court. See Fed. R. App. P. I(a). Thus, there is no rule

that nullifies a notice of appeal to this Court when a motion

to vacate is filed, and there is no reason to imply such a

rule.' In any event, as we noted in our opening brief (Br.

9-10 n.9), the injunction challenged in No. 80-415 was

mooted by passage of the Staggers Rail Act and has no

continuing effect.

'The filing of a notice of appeal to the court of appeals dockets the

appeal (see Fed. R. App. P. 12(a)), and the appeal will then proceed

2

2. The private appellees’ argument that the labor protec-

tion provisions of the Rock Island Act effect a taking rests

primarily on a misinterpretation of one case, Brooks-

Scanlon Co. v. Railroad Commission, 251 U.S. 396 (1920).

The private appellees repeatedly assert (Br. 25-28, 33-34, 40)

that at a certain point Brooks-Scanlon “absolves a railroad

from expending its funds or consuming its assets in the

public interest” (Br. 25), and they contend that that point

was reached here when the district court determined that

the Rock Island could not be reorganized as an operating

railroad. But Brooks-Scanion holds only that a railroad

may not be forced to continue operations indefinitely once

it is determined that the railroad cannot be reorganized ona

profit-making basis. That determination of unreorganiz-

ability, however, does not instantly relieve a railroad of all

of its existing common carrier obligations, even though the

satisfaction of those obligations may require the expendi-

ture of funds that would otherwise be available to the

creditors of the estate. It simply entitles the railroad to cease

operations within a reasonable period of time upon the

receipt of a certificate of abandonment.? See New Haven

Inclusion Cases, 399 U.S. 392, 461 (1970); Lehigh & New

England Ry. v. ICC, 540 F. 2d 71, 82-83 (3d Cir. 1976),

cert. denied, 429 U.S. 1061 (1977).

unless the notice of appeal is withdrawn. It is therefore a sensible rule of

practice for the notice of appeal to be nullified if further review is sought

in the lower court. See Advisory Comm. Note to Fed. R. App. P.

4(a)(4), 28 U.S.C. (Supp. II). In this Court, however, an appeal is not

docketed until the jurisdictional statement is filed (see Sup. Ct. R. 12),

and there is thus no reason to nullify a notice of appeal that has been

filed where the appeal has not yet been docketed.

2As we explained in our opening brief (Br. 27), even a railroad found

to be unreorganizable may be required to continue operating at a loss

for some period of time in order to permit an examination of alterna-

tives to total abandonment. See /n re Valuation Proceedings Under

§$§ 303(c) & 306 of the Regional Rail Reorganization Act, 439 F. Supp.

1351, 1371 (Spec. Ct. 1977).

3

The private appellees’ interpretation of Brooks-Scanlon

has recently been rejected emphatically by the Seventh Cir-

cuit ina series of cases affirming Commission orders autho-

rizing other rail carriers to provide service over Rock Island

lines. The private appellees argued there that these directed

service orders constituted a taking because the Rock Island

has been declared “cashless” and unreorganizable and

therefore was relieved of its common carrier obligations.

The court of appeals held that “even if the Rock Island

cannot operate, it must still fulfill its obligations under the

Interstate Commerce Act.” Gibbons v. United States, 660

F, 2d 225, 229 (7th Cir. 1981). See also Gibbons v. United

States, Nos. 80-2009, 80-2010, 80-2455 and 81-1026 (7th

Cir. Oct. 22, 1981), slip op. 4, 7; Gibbons v. United States,

Nos, 79-2413, 80-1111, 80-1383 and 80-1538 (7th Cir. Oct. 7,

1981), slip op. 13-16. Thus, the district court's finding that

the Rock Island cannot be reorganized does not imme-

diately terminate its obligations to act in the public

interest.

Labor protection is an existing common carrier obliga-

tion for which a railroad remains responsible even if it

cannot be reorganized. The private appellees object, how-

ever, that the requirement that the Rock Island pay labor

protection to its separated employees requires the “mori-

bund Rock Island” to expend funds in furtherance of the

national transportation policy although it no longer partic-

ipates as a carrier (Br. 27-28) and that the labor protection

‘The Commission found the Rock Island to be “cashless” on Sep-

tember 26, 1979, and the reorganization court authorized the aban-

donment of the railroad on June 2, 1980. The Gibbons cases hold that

neither of these events terminated the Rock Island's public service

obligations. The cases cover directed service orders that were effective

(1) between October 1979 and March 1980; (2) between March 1980;

and (3) beginning in May 1980 and May 1980; and continuing well

beyond the date of the district court's June 2, 1980, order.

4

plan does not further the public interest (Br. 43-44). These

objections ignore the benefits to the estate under the legisla-

tion at issue here—e.g., the availability of a federal loan for

funding the labor protection expense and the expedited

review process that minimizes delay that might erode the

estate. See H.R. Conf. Rep. No. 96-1430, 96th Cong., 2d

Sess. 138 (1980). But more fundamentally, these assertions

rest on a misunderstanding of the role of labor protection in

furthering the national transportation policy.

The expectation that labor protection will be paid pro-

motes the stability of the work force. It ensures that, in

times of economic distress in the railroad industry, employ-

ees will not leave their jobs to look for other work because

they know they have some protection if their jobs are elimi-

nated. See United States v. Lowden, 308 U.S. 225, 236

(1939). During the many years of its existence, particularly

in recent years when it was known to be in financial trouble,

the Rock Island reaped the benefits of this stability. Labor

protection that is paid now when its employees are sepa-

rated is simply a fulfillment of a longstanding obligation

that arose during the Rock Island's years of service; it is not

a “wholly new” (Br. 34) obligation that furthers some cur-

rent transportation policy from which the Rock Island

derives no benefit. Indeed, the Rock Island's employee

protection obligation, which was a known condition at-

tached to its participation in the railroad industry, would be

a nullity if the railroad were released from its obligation

upon the occurrence of the very event that triggers the need

for protection—economic difficulties that result in elimina-

tion of the employees’ jobs. To release the railroad from its

labor protection obligations in the event of a liquidation

would destroy the employees’ security in their railroad jobs

and the consequential work force stability that is critical to

the national transportation policy. Moreover, as Congress

pointed out, it would “promote liquidations to the detri-

ment of the employees and the public interest.” H.R. Conf.

Rep. No. 96-1430, 96th Cong., 2d Sess. 138-139 (1980).

5

The private appellees also contend (Br. 28-34, 39-40) that

the imposition of a labor protection obligation upon a

whole line abandonment constitutes a taking because of the

degree to which it interferes with their investment-backed

expectations. This contention rests primarily on the fact

that the Commission historically has refrained from impos-

ing labor protection in most whole line abandonments. As

explained in our opening brief (Br. 29-31), however, the

Commission's prior policy gave no assurance that it would

not exercise its discretion to impose labor protection in the

case of an abandonment of the Rock Island, one of the

nation’s major railroads. Moreover, Congress had enacted

legislation in 1976 and 1979 that, on its face, appeared to

require the imposition of labor protection in the case of an

abandonment. While the reorganization court, recently

affirmed by the court of appeals (/n re Chicago, Rock

Island & Pacific R. R., Nos. 80-1788, 80-2199 and 80-2286

(7th Cir. Oct. 13, 1981)), interpreted the statute as giving it

discretion to decline to impose labor protection, that inter-

pretation is open to question (see H.R. Rep. No. 96-839,

96th Cong., 2d Sess., Appendix II, 63-66 (1980)), and the

creditors of the Rock Island could hardly have counted on

such an interpretation. In short, while investors in the Rock

Island had reason to hope that labor protection would not

be imposed in the event of an abandonment, Congress’

contrary decision did not destroy any legitimate investment-

backed expectations of theirs such that it should be charac-

terized as a taking. Rather, the labor protection provisions

of the Rock Island Act are simply an exercise of Congress’

regulatory power.

3. The private appellees raise in defense of the judgment

below several constitutional objections not relied on by the

district court. These arguments are insubstantial.

a. Contrary to the private appellees’ contention (Br. 50-

53), the Rock Island Act does not violate the requirement in

6

Article I, Section 8, Clause 4 of the Constitution that Con-

gress establish “uniform Laws on the subject of Bankrupt-

cies through the United States.” First, the Act is not a law

on the subject of bankruptcies. It does not concern the

relations between an insolvent debtor and his creditors (see

Continental Illinois National Bank & Trust Co. v. Chi-

cago, Rock Island & Pacific Ry., 294 U.S. 648, 672-673

(1935)), but rather concerns the obligations of a common

carrier to shield its employees from economic loss in further-

ance of the national transportation policy. Thus, the Act is

clearly an exercise of congressional power under the Com-

merce Clause. See United States v. Lowden, supra, 308

U.S. at 239-240. As explained in our opening brief (Br.

22-24), the Act indisputably was a rational response by

Congress to the rail service crisis in the Midwest, and hence

it is a legitimate exercise of the Commerce Power. See, é.g.,

Hodel vy. Virginia Surface Mining & Reclamation Associa-

tion, Nos. 79-1538, 79-1596 (June 15, 1981), slip op. 9-10.

Even assuming that the uniformity requirement applies

to the Rock Island Act, it is violated only when a statute

treats two entities differently on a geographical basis. See

Hanover National Bank v. Moyses, 186 U.S. 181, 188

(1902). As the private appellees acknowledge (Br. 51), a

statute directed at railroads in a particular geographical

region does not violate the uniformity requirement when

there is a geographically isolated problem. Regional Rail

Reorganization Act Cases, 419 U.S. 102, 159 (1974). Here,

the Rock Island Act was passed to deal with the specific

problems caused by the collapse of the Rock Island. To the

extent that these problems are analogous to those faced by

other railroads, Congress has indicated that there will not

be disparate treatment. The employee protection provisions

of the Rock Island Act were specifically “patterned after the

Milwaukee Railroad Restructuring Act.” H.R. Conf. Rep.

7

No. 96-1041, 96th Cong., 2d Sess. 25 (1980).4 And Congress

noted in its consideration of the Staggers Act that “it is the

intention of Congress that employee protection is imposed

in bankruptcy proceedings involving major rail carriers.”

H.R. Conf. Rep. No. 96-1430, 96th Cong., 2d Sess. 138-139

(1980).5 Hence, there is no uniformity problem. For the

same reasons, to the extent that the Rock Island Act is

construed as creating a classification, it is one that has a

rational basis and, contrary to the private appellees’ conten-

tion (Br. 53-55), does not violate the equal protection com-

ponent of the Due Process Clause.

b. The private appellees contend (Br. 45-49), primarily in

reliance on United States v. Klein, 80 U.S. (13 Wall.) 128

(1871), that the labor protection provisions of the amended

Rock Island Act contravene the doctrine of separation of

powers because they represent an effort to direct the ulti-

mate outcome of a pending case. This contention reflects a

misconstruction of both Klein and the Act.

As we have shown in our opening brief (Br. 29-30), the

Commission has always had the power, conferred by stat-

ute, to require the implementation of employee protection

plans as a condition on approval of whole line abandon-

ments. Congress is surely free, in response to its perception

‘The fact that the private appellees consider the situations of the

Milwaukee and the Rock Island to be distinguishable (see Br. 52 n.27)

hardly indicates that the statute fails for lack of uniformity.

‘Congress’ failure to impose a labor protection obligation on the New

York, Susquehanna, and Western Railroad does not require a finding

that the Rock Island Act violates the uniformity requirement. The

Constitution does not forbid the drawing of rational distinctions

between different classes of railroads. The Susquehanna is a tiny rail-

road with few employees. /n re New York, Susquehanna & Western R.

R., 504 F. Supp. 851, 855, 858 (D. N.J. 1980), aff'd per curiam, No.

80-1121 (3d Cir. Nov. 16, 1981). The Commission traditionally has not

imposed labor protection in connection with abandonments of such

minor carriers, and Congress has expressly indicated its desire to distin-

guish between major carriers like the Rock Island and minor carriers

like the Susquehanna. See id. at 863.

8

of a threatened impact on interstate commerce, to particu-

larize its delegation of power to the Commission on this

subject and to enact companion measures, such as the loan

guarantee and the expedited process for judicial review.

Congress does not unconstitutionally infringe on the judi-

cial power by thus clarifying and supplementing the appli-

cable law, even while a case is pending. See Dames &

Moore v. Regan, No. 80-2078 (July 2, 1981), slip op. 26.

This is not an instance, like Klein, in which Congress

sought to require the “dismissal of [a] suit in which the

Court of Claims had given judgment for the claimant.”

Pope v. United States, 323 U.S. 1, 8 (1944). Far from

“discarding [a] final judgment[]” of a court ( United States v.

Sioux Nation of Indians, 448 U.S. 371, 431-432 (1980)

(Rehnquist J., dissenting)), Congress has expressly pro-

vided procedures for expedited judicial review of the ques-

tion that the private appellees contend (Br. 46) had already

been decided by Judge McGarr—the constitutionality of

imposing labor protection conditions on the abandonment.

The private appellees’ related due process argument (Br.

48-49) is without merit for the same reasons. Congress has

exercised its legislative power to regulate interstate com-

merce, and appellees are now free to pursue, through the

judicial process, their claim that the effect of that exercise of

power constitutes an uncompensated taking of their

property.

c. The private appellees’ contention (Br. 55-60) that the

labor protection provisions of the Rock Island Act amount

to an imposition of retroactive liability that violates the Due

Process Clause is predicated on their view that these provi-

sions impose a wholly new obligation from which they were

effectively immunized prior to passage of the Act. As we

have explained above (pages 3-5, supra), that is an errone-

ous premise.

9

The fact that the Rock Island investors had no assurance

that employee protection conditions would not be imposed

upon an abandonment of their railroad lines distinguishes

this case from Railroad Retirement Board v. Alton R. R.,

295 U.S. 330 (1935), and Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1 (1976). Indeed, in Turner the Court upheld

the federal statute against a due process challenge even

though it accepted the possibility that liability for black

lung benefits was being imposed on coal mine operators

who might have carried out their operations “in reliance

upon the current state of the law, which imposed no liability

on them for disabling pneumoconiosis.” /d. at 17. Thus,

Alton does not control this case, even assuming its con-

tinued vitality, and this is a is more compelling case than

Turner for upholding the statute against a due process

retroactivity challenge.

But even assuming that the Rock Island Act, like the

statute in Turner J, has “some retrospective effect” (428 U.S.

at 16), it does not violate the Due Process Clause. The Act is

a rational exercise of Congress’ broad powers under the

Commerce Clause and, as explained above (pages 4-5,

supra), reflects a national policy from which the Rock

Island's owners benefited during years when the railroad

was attempting to sustain its operations. See 428 U.S. at

18-19.

4. AppeHants agree with the government that the Rock

Island Act does not effect an unconstitutional taking of

property because the Tucker Act would provide just com-

pensation if a taking were to be found (Br. 31-32). Appel-

lants contend (Br. 25-29), however, that, because of the

existence of that remedy, the Court should not now reach

the taking question. On the other hand, the private appel-

lees agree with the government (Br. 66-68) that this Court

should reach the taking question, but they contend (Br.

61-66) that the availability of the Tucker Act remedy does

not eliminate the Just Compensation Clause violation that

they allege.

10

a. For the reasons stated in our opening brief (Br. 18-20),

the Court should resolve the taking question at this stage, as

it did in similar circumstances in the Regional Rail Reor-

ganization Act Cases, 419 U.S. 102, 147-148, 149-150 n.36

(1974), with respect to the question whether offering stock

in exchange for rail properties constituted a taking. The

reorganization court has held that the imposition of labor

protection provisions constitutes a taking regardless of how

modest the cost of the plan ultimately agreed upon by the

Trustee and the unions or devised by the Commission (see

J.S. App. Sa-6a, 18a-19a). That is a purely legal conclusion,

and since the maximum extent of the estate's liability under

the Rock Island Act is fixed by the statute, there is nothing

to be gained by awaiting further factual development.

Compare Hodel vy. Virginia Surface Mining & Reclama-

tion Association, supra, slip op. 30-31. There is, however, a

strong public interest in a final determination of the taking

question now.

b. There is no merit to the private appellees’ contention

(Br. 62-63) that Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952), supports the proposition that, despite

the availability of the Tucker Act remedy, the Rock Island

Act may nonetheless be enjoined as an unconstitutional

taking. Youngstown concerned an action unauthorized by

any statute. The Court then had serious doubts that the

Tucker Act would apply to such unauthorized action (343

U.S. at 585), and it has since concluded (Regional Rail

Reorganization Act Cases, supra, 419 U.S. at 127 n.16,

quoting Hooe v. United States, 218 U.S. 322, 336 (1910))

that “ ‘(t]he taking of private property by an officer of the

United States for public use, without being authorized,

expressly or by necessary implication, to do so by some act

of Congress, is not the act of the Government,’ and hence

recovery is not available in the Court of Claims.”

*We agree with the private appellees (Br. 61) that the availability of

the Tucker Act remedy would not cure constitutional infirmities of

The private appellees’ allegations (Br. 63-64) of irrepara-

ble injury take little account of their concession elsewhere

(Br. 39) that, because of the Act's provision for a federal

loan of up to $75 million to pay the costs of an employee

protection plan, it cannot be expected that “the present cash

position of the estate” will be depleted. Moreover, the var-

ious other injuries about which the private appellees specu-

late are finally translatable into economic loss and thus are

not beyond monetary remedy. The fact that the estate may

have an “uncertain claim” subject to litigation (see Pvt.

App. Br. 63) surely does not constitute a circumstance

unique to this particular bankruptcy proceeding. In any

event, if this Court rules on the taking question, then the

estate will not face an “uncertain claim” under the Tucker

Act. Either there is no taking, in which case the estate will be

liable for the employee protection plan in an amount

determined by the expedited procedures established by

Congress, or there is a taking, in which case the estate will

enjoy a certain right to full reimbursement for the costs of

the plan.

Finally, the private appellees contend (Br. 64) that this

case is no different from any case in which “citizens with

available funds” are ordered by Congress “to pay[a] public

expense,” with the proviso that they can later seek reimburse-

ment under the Tucker Act. This assertion is frivolous.

Such a law undoubtedly would be struck down as a viola-

tion of due process if there were no rational connection

between the citizen charged with this obligation and the

public expense in question. The employees who would

benefit from the labor protection provisions at issue here,

however, are not strangers having no connection with the

Rock Island Railroad, and the Rock Island is hardly an

other kinds. As we have argued above (pages 5-9, supra), however, the

private appellees’ other constitutional claims are insubstantial.

12

innocent bystander saddled with a wholly unexpected obli-

gation. The employees are individuals who spent part of

their work lives in an industry plagued with a persisting

problem of partial and total line abandonments and who

may now, as a result of their employment with the Rock

Island, lack the skills needed for employment in different

kinds of work in more affluent sectors of the economy. The

labor protection provisions of the Rock Island Act repre-

sent a rational legislative judgment that properly takes that

factor into account.

CONCLUSION

For the foregoing reasons, and for those stated in our

opening brief, the judgment of the court of appeals in No.

80-1239 should be reversed, and the order of the district

court in No. 80-415 should be vacated as moot.

Respectfully submitted.

Rex E, Lee

Solicitor General

RICHARD A. ALLEN

General Counsel

Interstate Commerce Commission

NOVEMBER 1981

DOJ-1981-1)