# Petition — Chicago, Milwaukee, St. Paul & Pacific Railroad v. Ogilvie > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0958%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 463 U.S. 1233 ## Text : { Office- S nrg: > on ) * a Jui rene Co rt, 7 fe 59 EL Eg 5 U.S, MAY 17 No. 82- | 1983 IN THE — CLERK 7 Supreme Court of the United States OCTOBER TERM, 1982 CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, AND CHICAGO MILWAUKEE CORPORATION, Petitioners, vs. RICHARD B. OGILVIE, «S TRUSTEE OF THE PROPERTY OF CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, THE UNITED STATES OF AMERICA, AND HARRIS TRUST AND SAVINGS BANK, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT JOSEPH A. MAUN JEROME B. SIMON* M. MICHAEL MONAHAN MAUN, GREEN, HAYES, SIMON, JOHANNESON & BREHL 332 Hamm Building St. Paul, Minnesota 55102 612-224-7300 Attorneys for Petitioners *Counsel of Record 224-7631 — Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 — 224-7681 QUESTIONS PRESENTED 1. Is the question of the validity of Sections 7 and 22 of the Milwaukee Railroad Restructuring Act! (the MRRA) under article I, section 8, clause 4 of the Constitution of the United States ripe for review? 2. Do Sections 7 and 22 of the MRRA, which require that one specifically named bankrupted railroad continue to operate concededly unreorgarizable rail lines and which im- pose the cost of such operations on the bankrupted railroad’s shareholders through forced loans from the United States, violate the uniformity requirement of article I, section 8, clause 4 of the Constitution of the United States? 3. Do Sections 7 and 22 of the MRRA violate the Just Com- pensation clause, the Due Process clause, and the Equal Pro- tection Provisions of the Fifth Amendment of the Constitution of the United States by requiring the continued operations of the Debtor’s entire system at the expense of its shareholders? i MRRA §§ 7 & 22, 45 U.S.C. §§ 906 & 920 (Supp. IV 1980). LIST OF PARTIES* The parties before the United States Court of Appeals for the Seventh Circuit were: Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the Debtor) and Chicago Milwaukee Corporation (CMC), as Appellants; and Richard B. Ogilvie, as Trustee of the Property of Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the Trustee) ; the United States of America; and Harris Trust and Savings Bank, as Appellees. * Pursuant to Rule 28.1 of the Rules of this Court, petitioner CMC reports that it is a parent company and that its only subsidiary (except wholly owned subsidaries) or affiliate is Chicago, Mil- waukee, St. Paul and Pacific Railroad Company. The following is a list of companies which are not wholly-owned subsidiaries of Chicago, Milwaukee, St. Paul and Pacific Railroad Company, but which may be deemed affiliates: Chicago Union Station Company, Chicago, Terra Haute & S.E. Ry. Co., Davenport, Rock Island & N.W. Ry. Co., Indiana Harbor Belt R.R. Co., Kansas City Terminal Ry. Co., The Minnesota Transfer Ry. Co., Trailer Train Company, and National Railroad Passenger Corporation ii TABLE OF CONTENTS Page T. : . et 8 i eee On PT ee ea ii ee On CONG es ⁵ↄ . ei ak, iii ee ee ORIN kL ͤ v %%%%%%%%I dpd 2 Relevant Constitutional And Statutory Provisions .... 2 epee 8 SU A OG GS re 3 Stages At Which The Federal Questions Were c 2... css. os i 7 mneie Tor Federal Jurisdiction... AA 8 8 Reasons for. Granting the kk. 8 A. Impact of Decision Below and Reasons for J WRT 8 B. The Question of the Constitutionality of Sections 7 and 22 is Ripe for Decision 11 1. The Bankruptcy Clause Question Is Fit For Decision and Passage of Time Will Not Aid J 8 12 2. Failure to Decide Merits Is Causing Serious Current Harm To All Parties. 13 3. The Court of Appeals Failed to Distinguish Between the Constitutional Challenges Made %% VJ . 88 15 C. Sections 7 and 22 Are Non- uniform Laws on the Subject of Bankrupteſy . 16 JJ ee sas 18 Page Appendices Appendix A—Relevant Constitutional and Statutory JJ a ee es Se A-l Appendix B—District Court's Decision Regarding Constitutionality of MRRA .................... A-4 Appendix C—District Court’s Decision Regarding Further Borrowing Under MRRA .............. A-17 Appendix D—Court of Appeals’ Decision As To Which Certiorari Is Sought .................... A-18 Appendix E—Court of Appeals’ Order Permitting filing of Petition for Rehearing En Banc Pit!!! eee rs ee A-33 Appendix F—Court of Appeals’ Order Denying „„ ec ere ee. A-34 TABLE OF AUTHORITIES Page Cases: Abbott Laboratories v. Gardner, Mer Wt. BO CLOT). a ee ks 11 Brooks Scanlon Co. v. Railroad Commission % VA. eee — Ä 9 Buckley v. Valeo, 424 U.S. 1 (197) 11 Carroll v. President & Comm’ers of Princess Anne, „„ Se he eee ee 10 Dames & Moore v. Regan, 453 U.S. 654 ( it i} Se 16 Duke Power Co. v. Carolina Environmental Study Group, Inc., 488 U.S. 59 (1976) 13 Group of Institutional Investors v. Chicago, Milwaukee, St. P. & Pac. R. Co., Bae aes Oe ⅛˙vůtit m m/dßem..m. 3 Hodel v. Indiana, 452 U.S. 314 (1981777 16 Hodel v. Virginia Surface Mining & Reclumation ne,, 5 16 In re Chicago, Milwaukee, St. P. & Pac. R. Co., 611 F.2d 662 (7th Cir. 1979) (the Embargo Case) 4 In re Chicago, Milwaukee, St. P. & Pac. R. Co., 701 F.2d 604 (7th Cir. 1988) (the MRRA Case) 2,7 In re Sink, 27 F.2d 361 (W.D. Va. 1928) appeal dismissed 30 F.2d 1019 (4th Cir. 192999 18 Laird v. Tatum, 408 U.S. 1 (1972) ........... Ore Oe Pacific Gas & Elec. Co. v. State Energy 8 Conservation & Dev. Comm'n, 51 U.S. L. W. 4449 (U.S. Apr. 20, 1983) (No. 81-1945) ............ 11 _ Railway Labor Executives’ Ass’n. v. Gibbons, / eRe Bek ce. Gs passim | Regional Rail Reorganization Cases, 419 U.S. 102 (1974) (the 8-R Cases? passim St. Paul Fire & Marine Ins. Co. v. Barry, %% 3¼mpñm ꝛ Cr eee ss 10 Southern Pacific Terminal Co. v. I. C. C., —.. CRED occ ow . ͤ vies 10 United States v. W.T. Grant Co, . Cee Seok ! 10 Village of Belle Terre v. Boraas, ee ee SOO i mm ¼ le keen tn 15 Constitutional and Statutory Material: TE, Ce i eis os oe ee a BS passim U.S. Const., Fifth Amendment ................... 9 11 U.S.C. § 205 (repealed 1979) ũůͤůͤũůhũůů 2... 206. 3, 8 Act of Nov. 6, 1978, Pub. L. No. 95-598, §§ 401-403, 92 Stat. 2549, 2682-83 ........... e e a ee cc 2 Emergency Rail Service Act of 1970, %%% ˙ -- h 5 Regional Rail Reorganization Act of 1978, eben een, nse wa ve oe 9,11,12 Milwaukee Railroad Restructuring Act, 45 U.S.C. §. 00108 000. 55.0 eee hee ee ees passim Rock Island Railroad Transaction niga Employees Assistance Act, 45 U.S.C. § 1001 et gg. 9 Staggers Rail Act of 1980, Pub. L. No. 96-448, /// ek Oe et oe passim PUBS Pont ek) ROR a ARRIGO: Monee ieee ny. 4 IN THE Supreme Court of the United States ; OCTOBER TERM, 1982 NO. 82- CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, AND CHICAGO MILWAUKEE CORPORATION, Petitioners, vs. RICHARD B. OGILVIE, AS TRUSTEE OF THE PROPERTY OF CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, THE UNITED STATES OF AMERICA, AND HARRIS TRUST AND SAVINGS BANK, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Petitioners Chicago, Milwaukee, St. Paul and Pacific Rail- road Company? (the Debtor) and Chicago Milwaukee Cor- poration (CMC) pray that a writ of certiorari be issued to review the judgment of the United States Court of Appeals for the Seventh Circuit which declined to pass upon the con- stitutionality of Sections 7 and 22 of the Milwaukee Railroad Restructuring Act, 45 U.S.C. §§ 906 & 920 (Supp. IV 1980) (the MRRA). 2 The term Milwaukee Road” is used here to describe the railroad operating system as distinguished from the “Debtor” in its cor- porate capacity and the “Estate” as the fiscal entity created upon the filing of a Section 77 petition for reorganization. OPINIONS BELOW The Memorandum decisions and orders of the Reoganiza- tion Court® are unreported, but appear as Appendices B and C. App. A-4-A-17. The decision of the United States Court of Appeals for the Seventh Circuit, as to which certiorari is sought, is reported at 701 F.2d 604 and appears as Appendix D. App, A-18-A-32. The orders of the Court of Appeals (a) allowing the filing of the Petition for Rehearing En Banc Instanter, and (b) denying the Petition for Rehearing En Banc are unreported but appear as Appendices E and F. App. A-33-A-35. JURISDICTION The Court of Appeals’ decision was rendered on 16 Feb- ruary 1983. 701 F.2d 604, infra at App. A-18. A Petition for Rehearing En Banc was filed on 3 March 1983 by leave of Court and denied on 21 April 1983. App. A-33-A-35. The jurisdiction of the Court is invoked under 28 U.S.C. 8 1254(1). RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS This case involves article I, section 8, clause 4 of, and the Fifth Amendment to, the Constitution of the United States. It also involves 45 U.S.C. § 901 et seq. The relevant constitutional and statutory provisions are set forth as Appendix A. App. A-1-A-3. The United States District Court for the Northern District of Illinois, Eastern Division, The Honorable Thomas R. McMillen presiding in No. 77 B 8999. 8 STATEMENT OF THE CASE This case involves a consolidated appeal“ from two orders of the Reorganization Court, App. A-4-A-17, upholding the constitutionality of Sections 7 and 22 of the MRRA and ap- proving the issuance of up to $60 million in trustee’s certifi- cates of indebtedness to finance the deficit operation of the entire Milwaukee Road system during a congressionally man- dated period. The Debtor is a Wisconsin railroad corporation organized in 1847. During the intervening 136 years, it has been in re- ceivership or reorganization on two prior occasions—from 1925 to 1928 and from 1935 to 1945. Group of Institutional Investors v. Chicago, Milwaukee, St. P. & Pac. R. Co., 318 U.S. 523 (1943). It filed its third petition for protection from its creditors on 19 December 1977 pursuant to Section 77.“ At that time, the Milwaukee Road was a Class I transcontinental railroad operating over some 10,000 route miles in the Mid- west and across the northern tier of states from Chicago to the Pacific Northwest. In the three years preceding the filing of the e ee petition, the Debtor lost approximately 8105 million. During the approximately 22 months of reorganization, ending Octo- ber 1979, which immediately preceded the events underlying this petition, the Estate suffered reorganization operating losses in excess of $175 million. By the end of February 1980, these reorganization losses grew to $238 million.“ 4 Nos. 79-2444 and 80-1425 (7th Cir.). ‘Chapter VIII of the Bankruptcy Act of 1898, as amended, 11 U.S.C. § 205 (repealed effective 1979). These proceedings continue to be governed by Section 77. Act of Nov. 6, 1978, Pub. L. No. 95-598, $§401-403, 92 Stat. 2549, 2683 (1978). o The Estate has suffered total reorganization operating losses of $413.6 million during the years 1978-1982, inclusive. 4 As a result of these deficit operations, in April 1979, the Trustee petitioned the Reorganization Court for permission to embargo all lines outside a 3,900 mile midwest “Core” sys- tem which he had identified as having the best potential for successful reorganization. On 1 June 1979, the Reorganization Court denied the Trustee’s request but, on appeal, the Court of Appeals for the Seventh Circuit reversed. In re Chicago, Milwaukee, St. P. & Pac. R. Co., 611 F.2d 662, 668-70 (7th Cir. 1979). In August 1979, the Trustee filed a Plan of Reorganization and again sought to embargo all lines outside the Core. On 27 September 1979, the Reorganization Court granted this em- bargo request, effective 1 November 1979. During the course of the hearings before the Reorganization Court, virtually all the principal parties, including the United States, conceded that the entire Milwaukee system was not reorganizable.“ The embargo of the non-Core lines went into effect 1 November 1979 but service was interrupted for only a few days. On 4 November 1979, the Congress intervened directly by enacting the MRRA. Section 22 required the Trustee to main- tain service over the entire Milwaukee system at the level existing on 15 October 1979. MRRA § 22(a), 45 U.S.C. § 920 (a), infra App. A-3. Further, it precluded any embargo, aban- donment, or discontinuation of service until the occurrence of one of several trigger events. MRRA § 22(b), 45 U.S.C. § 920 (b), infra App. A-3. Congress also prohibited the use of “directed service“ under 49 U.S.C. § 11125 on any of the Mil- waukee Road’s lines until 1 April 1981. MRRA § 18, 45 U.S.C. 7 This view was not held by the parties representing the Milwaukee Road’s employees, the interests of the states outside and those representing the Core system. While the United States conceded that the entire system was not reorganizable, it opposed the re- quested embargo, 5 § 916, infra App. A-3. To provide funds to operate the entire Milwaukee system during this period, Section 7 directed the Secretary of Transportation to grant the Estate $10 million and to guarantee the Trustee’s certificates of indebtedness in an amount equal to the difference between the Estate’s total expenses in providing entire system services, as required by Section 22, and its revenues during the period of such opera- tion. MRRA § 7, 45 U.S.C. § 906, infra App. A-1-A-2. These certificates were granted a statutory priority junior to all creditors, but senior to the Debtor’s equity holders. MRRA § 7(f), 45 U.S.C. § 906(c), infra App. A-2. With the passage of the MRRA, the Trustee sought au- thority to continue system-wide operations and to borrow $30 million pursuant to its provisions. On 23 November 1979, the Reorganization Court granted the Trustee’s request for au- thority to borrow pursuant to the MRRA or, alternatively, pursuant to the Emergency Rail Service Act of 1970, 45 U.S.C. § 661 et seq., infra App. A-16-A-17. Ultimately, funds were made available to the Trustee under the MRRA. After the occur- rence of the Section 22 (b) (2) trigger event on 31 December 1980, the Trustee requested authority to borrow an additional $45 million under the MRRA to finance the continued system- wide operation of the Milwaukee Road for an additional 60 days. On 25 February 1980, he was authorized to borrow up to an additional $30 million. App. A-17. As a result of Orders 246 and 246-C, App. A-4-A-17, the Trustee was authorized to issue $60 million in MRRA guaranteed trustee’s e-vtificates having a priority junior to creditors, but senior to the common and preferred shareholders, in order to finance the system-wide operation of the Milwaukee during the period 1 November 1979 through 29 February 1980. 6 Pursuant to the authority granted to him by the Reorganiza- tion Court, the Trustee issued certificates of indebtedness totaling approximately $55 million. The Secretary of Trans- portation guaranteed those certificates pursuant to the man- date of Section 7(e). The Federal Financing Bank advanced funds against the certificates. When the Trustee defaulted, the Secretary honored his guarantee and succeeded to the interest of the Federal Financing Bank. The MRRA debt is accruing interest at a compound rate of 14.687 percent and will approximate $104 million by 31 December 1984, the target date for consummating the Trustee’s Amended Plan of Re- organization. In October 1980, Congress amended the MRRA. Section 701 (c)(1) of the Staggers Rail Act of 1980, 45 U.S.C. § 906(e) (Supp. IV 1980), provides that the Estate’s MRRA indebted- ness will be forgiven if the Debtor is reorganized as an operat- ing rail carrier, or if substantially all of its rail assets are pur- chased for continued rail use and 50 percent or more of its employees are retained in railroad employment. Id., infra App. A-3. On 17 August 1982, the Trustee executed a Stock Acquisi- tion Agreement with Grand Trunk Corporation® (GTC). Pur- suant to this agreement, GTC will gain control of the Estate’s remaining operating rail assets (the Core System), subject to certain liabilities not to exceed $255 million. The Trustee projects that the assets have the ability to produce pre-tax net income after the service of debt and that they have a liquida- tion value of $820.2 million. The reorganized Debtor, which ® GTC is a Delaware corporation which is a wholly-owned subsid- iary of Canadian National Railway Company, a Canadian Crown corporation, all of whose capital stock is owned by Her Majesty the Queen in right of Canada. 7 will own these assets, will have $104 million in common share- holder’s equity. The Estate receives no direct compensation from this transaction. Rather, the Trustee points to the Stag- gers Act’s conditional forgiveness as one of the major benefits justifying the transaction. Thus, the existence of the MRRA debt is eroding the Estate at a compound rate of 14.687 per- cent per annum, and it is directly influencing the Trustee’s actions. On 16 February 1983, the United States Court of Appeals dismissed Petitioners’ appeals from Orders 246 and 246-C. 701 F.2d 604, infra App. A-18. The Court concluded that, be- cause important facts will not be known until there are further proceedings below, the action is not ripe for review.” 701 F.2d at 605, infra App. A-19. The Court of Appeals identified two primary unknown facts: (1) the possibility that the Estate is, or will become, insolvent, and (2) the possibility of a Stag- gers Act forgiveness of the MRRA debt. 701 F.2d at 607-608, infra App. A-25-A-26. In reaching its conclusion that the ap- peals were not ripe for decision, the Court of Appeals states that it followed this Court’s reasoning in Regional Rail Re- organization Act Cases, 419 U.S. 102 (1974) (8-R Cases). 701 F.2d at 609, infra App. A-28. Petitioners’ Petition for Rehearing En Bane was denied on 21 April 1983. App. A-34, A-35. STAGES AT WHICH THE FEDERAL QUESTIONS WERE RAISED AND PRESERVED Petitioners raised and argued the issues relating to the constitutionality of Sections 7 and 22 of the MRRA before the Reorganization Court and the Court of Appeals. See, e.g., App. A-4-A-17. The Reorganization Court passed upon the merits of the issues, but the Court of Appeals refused to reach the merits. App. A-7-A-17; A-18-A-32. BASIS FOR FEDERAL JURISDICTION The basis for federal jurisdiction in the Reorganization Court is 11 U.S.C. § 205 (1976) (repealed effective 1979) which continues to govern the proceedings. Act of November 6, 1978, Pub. L. No. 95-598, §§ 401 & 408, 92 Stat. 2549, 2682- 8. This Court has jurisdiction under 28 U.S.C. § 1254(1). REASONS FOR GRANTING THE WRIT A. Impact of Decision Below and Reasons for Granting Writ. We submit that the implications of the MRRA threaten the survival of the effectiveness of the limitations on congres- sional power contained in the Bankruptcy Clause. This Court’s decision in Railroad Labor Executives Ass’n v. Gibbons, 455 U.S. 457 (1982), made clear that this limitation is fundamental to a proper congressional exercise of the bankruptcy power. The Court of Appeals’ refusal to reach the merits of these ap- peals threatens to permit Congress to interfere in the re- organization process on a selective basis and to avoid Gibbons by conditionally postponing the adverse impact of its enact- ment or by conditionally mitigating that impact. Such a result effectively reads the uniformity limitation out of the Constitu- tion. Id. at 478. The factual and legislative context of this case is virtually identical to that present in Gibbons. Here, as in Gibbons, Con- gress reached into a pending bankruptcy proceeding to re- direct its course by means of legislation applicable to only one, 9 specifically named, bankrupted railroad. Faced with both ju- dicial and executive analyses which concluded that the entire Milwaukee Road system could not be reorganized, Congress ordered the continued operation of the entire system. To im- pose such an obligation upon a single, specifically named, bankrupted railroad during the pendency of a reorganization proceeding, is manifestly a law on the subject of bankruptcy which violates the uniformity requirement of article I, section 8, clause 4 of the Constitution of the United States (the Bank- ruptcy Clause). Gibbons, 455 U.S. at 473. The burden of this congressional abuse of its bankruptey power falls, by congressional decree, only upon the Debtor's shareholders. The MRRA is a congressional attempt to ad- vance a tailor-make reorganization plan. As such, it trans- gresses the limits of bankruptcy relief permissible under the Bankruptcy Clause. The two most recent congressional ef- forts'® to reorganize railroads by legislation have injected a serious element of uncertainty into the administration of the bankruptcy laws, into the relationship between debtors ® The continued loss operation of unreorganizable rail lines violates the Fifth Amendment. Brooks-Scanion Co. v. Railroad Commis- sion, 251 U.S. 396 (1920) (and its progeny). Thus, even if the MRRA is a valid bankruptcy law, it violates the Just Compensa- tion, Due Process and Equal Protection clauses of the Fifth Amendment. 10 Rock Island Railroad Transition and Employee Assistance Act, 45 U.S.C. §§ 1001 et seg. (Supp. IV 1980) and Milwaukee Railroad Restructuring Act, 45 U.S.C. §§ 901 et seg. (Supp. IV 1980), each involve only a single bankrupted railroad both of which were operating in the same geographic areas and subject to reorganiza- tion in the same judicial district, while the Regional Rail Reor- ganization Act of 1973, 45 U.S.C. §§ 701 et seg. (1976) involved all the brankrupted railroads in a defined geographic area which, it turned out, were all the bankrupted railroads operating in the United States. 3-R Cases, 419 U.S. at 160. 10 and their creditors, shareholders, and trustees, and into the formulation of reorganization plans involving politically sensi- tive industries. These circumstances underlie the reasons why this Petition should be granted. 11 The Court of Appeals' refusal to reach the constitutional merits in this case is tantamount to a decision that the chal- lenged sections are constitutional. The decision undermines the orderly progress of this reorganization proceeding by leav- ing open constitutional questions of fundamental importance to all of the parties and to the administrative and judicial bodies involved. The Trustee's Amended Plan demonstrates that he is proceeding upon the assumption that the MRRA debt is constitutionally valid. The Interstate Commerce Com- mission is being asked to judge the fairness and equity of a reorganization plan which is premised upon obtaining the for- giveness of the $104 million congressionally imposed MRRA liability. The Reorganization Court is being asked to evaluate the propriety of the transfer of control of the Core system to GTC—a proposal advanced by the Trustee in order to trigger the Staggers Act forgiveness of the MRRA debt. Creditors are being paid, property sold, and a complex financial and cor- porate restructuring advanced, all upon the assumption that one of the largest pending obligations has a valid constitu- tional basis. It will be too late to make that determination, as 11 Given Congress’ repeated enactment of special railroad bank- ruptcy legislation, it is not speculation to conclude that Congress is willing to continue to intervene in this troubled industry. Such a possibility, in itself, requires reaching the merits here. See, Southern Pacific Terminal Co. v. I. C. C., 219 US. 498, 515 (1911); United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953); Car- roll v. President & Comm’ers of Princess Anne, 393 U.S. 175, 178- 79 (1968); St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537-38 (1978). 11 the Court of Appeals suggests, once the implementation of a reorganization plan has begun. 701 F.2d et 609-10, infra App. A-29-A-30. As this Court recognized in the 3-R Cases, consti- tutional questions get short-surfeit in the collective effort to lay to rest complex railroad reorganizations. 419 U.S. at 145. B. The Question of the Constitut onality of Sections 7 and 22 is Ripe for Decision. | The Court of Appeals’ decision dismissing Petitioners’ ap- peals is based upon an application of the ripeness doctrine which varies significantly from that which this Court used in Abbott Laboratories v. Gardner, 387 U.S. 186, 148-149 (1967) and, more recently, in Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 51 U.S.L.W. 4449, 4451-52 (U.S. Apr. 20, 1983) (No. 81-1945). It also varies from the conclusions reached in the 3-R Cases, where this Court reached the merits of a constitutional challenge to the Regional Rail Reorganization Act of 1973, 45 U.S.C. § 701 et seg. (1976), in a factural context which is essentially the same as that presented by this Petition. 419 U.S. at 140-47. The ripeness doctrine comprises an uncertain mixture of prudential and constitutional restraints on a court’s willingness to consider otheriwse justiciable controversies. See Buckley v. Valeo, 424 U.S. 1, 114 (1976); 3-R Cases, 419 U.S, 102, 140, 143-45 (1974); Laird v. Tatum, 408 U.S. 1, 38-40 (1972) (Brennan, J., dissenting). In Abbott Laboratories, this Court stated that the question of ripeness turns on “the fitness of [the] issue for judicial decision” and the hardship to the par- ties of withholding court consideration. 347 U.S. at 149. 12 1. The Bankruptcy Clause Question Is Fit For Decision and Passage of Time Will Not Aid Court. In the 3-R Cases, the Court conducted a pragmatic analysis of the issue’s fitness for decision. That analysis persuaded this Court to reach the merits. The question there, as here, was purely legal and needed little factual development. Indeed, here the challenged provisions have been fully implemented, while in the 3-R Cases implementation was merely pending. There, as here, the statutory provisions were mandatory in their ap- plication against the shareholders of a railroad. There, as here, the substantive right involved was essentially a property right, among the most basic of constitutional rights. There, as here, the uncertainty caused by a refusal to reach the merits was likely to affect the parties in their daily activities. Under such circumstances, review on the merits is required. 3-R Cases, 419 US. at 148; see also Buckley v. Valeo, 424 U.S. at 116-17. The possibility of future relief under the Tucker Act did not diminish the ripeness of the questions presented in the 3-R Cases. For the same reasons set forth there, the possibility of a future Staggers Act conditional forgiveness, or the possi- bility of future insolvency, ought not affect the ripeness of the Bankruptcy Clause question presented here. 3-R Cases, 419 U.S. at 142. The MRRA bears a similarity of purpose to the Regional Rail Reorganization Act of 1973. Compare 45 U.S.C. § 901 and § 701. Both are congressional attempts to effectuate a railroad reorganization by direct legislation. As in the 3-R Cases, deci- sions are being made at this moment by the Trustee, and are to be made shortly by the Trustee, the Interstate Commerce Commission, and the Reorganization Court, which will be in- fluenced by whether the MRRA debt is valid. The future of 13 this reorganization will be complex and subject to intense pres- sure for