Opposition Brief — Pinney Dock & Transport Co. v. Norfolk & Western Railway Co.

No. 88-72

IN THE

Suprene Court of the United §

OCTOBER TERM, 1988

PINNEY Dock & TRANSPORT Co.,

Petitioner,

NORFOLK & WESTERN RAILWAY Co., et al.

LITTON INDUSTRIES, INC., e¢ al.,

“ Petitioners,

NORFOLK & WESTERN RAILWAY Co., et al.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DONALD L. FLEXNER RICHARD J. FLYNN

WM. RANDOLPH SMITH (Counsel of Record)

CLIFTON S. ELGARTEN STEPHEN S. HILL

CROWELL & MORING MERINDA D. WILSON

1001 Pennsylvania Avenue,N.W. Sm.LeY & AUSTIN

Washington, D.C. 20004-2505 1722 Eye Street, N.W.

(202) 624-2500 Washington, D.C. 20006

Counsel for Respondents (202) 429-4000

Chesapeake & Ohio Railway Counsel for Respondent

Company, Norfolk & Western Railway

Baltimore & Ohio Railroad Company

Company and .

CSX Corporation a

TIMOTHY W. BERGIN

SQUIRE, SANDERS & DEMPSEY

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 626-6600

Counsel for Respondent

Bessemer and Lake Erie

August 10, 1988 Railroad Company

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

20

TABLE OF CONTENTS

Page

ee Ge MIU eieiiciceicicteecis a nciaicennctdenbexdecacics i

py DOF BR me Sine 5 yy) ERE neNe rT enCmN ii

COUNTERSTATEMENT OF THE CASE ................... 1

A ER a EE a er

EET ITIE 1 FOAL RET 3

REASONS FOR DENYING THE WRIT ...................... 6

rm Ct 0 cacao babuaiatmiceenntl 7

a 12

Iti. Agpetete Jurisdiction ......................................... 18

I a od 24

APPENDIX A—Rule 28.1 Information .............0.......... la

ii

TABLE OF AUTHORITIES

CASES: Page

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

GSR enemy pace seem rerio icone Metre ed nedes) Keio 20

Arrow Transportation Co. v. Southern Railway

Co, S08 GE. Re (ID miei 15

Associated General Contractors of California, Inc.

v. California State Council of Carpenters, 459

eB TOR. 6 ED oiiinccccncniicnacensoremapicemnciinieaeseanembiens 4

Atchison, Topeka & Santa Fe Railway Co. v. Air-

coach Transportation Association, 253 F.2d 877

PEE, Sa BOUED siceasecnsssicatcinininclpcienseecparnneestuapspacaiiaasiaailys 10, 11

City of Groton v. Connecticut Light & Power Co.,

CGE Fe GEE COG Cie. RORY ccc cssicsrccricsicicntnions 17

Clipper Exxpress v. Rocky Mountain Motor Tariff

Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) -....... 18

Essential Communications Systems, Inc. v. AT&T,

ClO F.DE TERE COR GOR. TOG settee 16, 17

Garcia v. United States, 469 U.S. 70 (1984) -........... 12

Georgia v. Pennsylvania Railroad Co., 324 U.S.

CGD asncvireincticce iri 11, 15, 16

Keogh v. Chicago & Northwestern Railway. 260

TER. BUR CE ncssncogpsissscinaincins espe ae passim

Litton Systems, Inc. v. AT&T, 700 F.2d 785 (2d

TR, RID ies icsndn chacisssennnsnsuiiesusbicntigieuncian aan anna 17

Noerr Motor Freight, Inc. v. Eastern Railroads

Presidents Conference, 155 F. Supp. 768 (E.D.

Pa. 1957), aff'd, 273 F.2d 218 (3d Cir. 1959),

we'd, BG TS. TET CERRY osvvenccesssscivineetceoen 11

Nuclear Engineering Co. v. Scott, 660 F.2d 241

kh. Ch SE |) eee eg Cee SS 20

Seatrain Lines, Inc. v. Pennsylvania Railroad Co.,

207 F.2G BBG (B68 Che. BOGS D ccccitcnic tne 17

Square D Co. v. Niagara Frontier Tariff Bureau,

Fone, 476 UR 40D CABG) anna cnncivnincavccnccen 11, 16, 17, 18

Terminal Warehouse Co. v. Pennsylvania Railroad

Cag BOT UB: BOD CIGD ececssstiscicctesctientnaachioe 15

l/nited Mine Workers v. Pennington, 381 U.S. 657

CTD iasviinincctniacccnyocsoichieisencdteienaiiesin baleen 9, 10

United States v. Bessemer & Lake Erie Railroad,

TIT Fe OES CEC. Cie. TBD nieces 10

a

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. Oregon, 366 U.S. 643 (1961) ........ 12

United States v. Stanley, 107 S. Ct. 3054 (1987) .... 20, 24

STATUTES:

Clayton Act, Ch. 323, 38 Stat. 730 (1914), codified

as amended at 15 U.S.C. §§ 14, 15, 15b (1982)... 7

Hepburn Act of 1906, Ch. 3591, 34 Stat. 584

a csadanedasusanosnsees 13

Interstate Commerce Act of 1887, Ch. 104, 24 Stat.

Cee ies cs catnnsaneinabanssoccs 14

Railroad Revitalization and Regulatory Reform

Act of 1976, Pub. L. No. 94-210, 90 Stat. 31

Ea ee a TAS ile 12

Reed-Bulwinkle Act of 1948, Pub. L. No. 80-662,

EE passim

Sherman Act, Ch. 647, 26 Stat. 209 (1890), codi-

fied as amended at 15 U.S.C. §§ 1 and 2 (1982).. 6,11

Staggers Rail Act of 1980, Pub. L. No. 96-448, 94

i snerenensnssannsisenioonensen 12

28 U.S.C. § 1292 (b) ............. i paaidinanicnneitnbbaseeseseih 3, 19, 20, 21

49 U.S.C. §$5b(9) (1976) ........................ inlenstlnadtines 8

RE ID ooo... csnncecncennnceanvennceneseenss 13

|) EERE 14

re nc ene cnsscnsennennseee 8

49 U.S.C. § 10761(a) (1982) .........00000..... Siemcthicaaie east 13

eae ERED COGS) |...............20..-.20.002c00c00.-2 14

LEGISLATIVE MATERIALS:

S. 443, 100th Cong., Ist Sess., 133 Cong. Rec.

$1595, 1614 (daily ed. Feb. 3, 1987) —.......00000...... 18

H.R. 941, 100th Cong., Ist Sess., 133 Cong. Rec.

oes caer OG. Fen. 8, 1967) ................................ 18

ADMINISTRATIVE ‘MATERIALS:

Iron Ore Rate Cases, 41 I.C.C. 181 (1916) .............. 17

Shaw Warehouse Co. v. Southern Railway, 308

Ne a ennscenncanees 15

U.S. Phosphoric Products Corp. v. Atlantic Coast

Line Railroad, 206 I.C.C. 411 (1935) .........0000...... 15

MISCELLANEOUS:

C. Wright, The Law of Federal Courts (1983)........ 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-72

PINNEY DocK & TRANSPORT Co.,

. Petitioner,

NORFOLK & WESTERN RAILWAY Co., et al.

LITTON INDUSTRIES, INC., et al.,

. Petitioners,

NORFOLK & WESTERN RAILWAY Co., et al.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

COUNTERSTATEMENT OF THE CASE

1. Introduction

These cases involve an antitrust challenge to railroad

rates that were set over thirty years ago. The rates in

question were the product of a legal system that dis-

placed the antitrust norm by promoting, immunizing and

2

regulating agreements among competitors. This legal

system, which below justified dismissal of Petitioners’

rate claims on alternative grounds, was largely disman-

tled by Congress eight years ago, and the collective rate

setting disputed here is ancient history.

The Petitioners are Pinney Dock and Litton, respec-

tively a dock company and a shipbuilding company. Each

alleges that the Respondent railroads committed anti-

trust violations in the iron ore transportation industry

dating back to the mid-1950’s.' In particular, Petitioners’

complaints describe two categories of unlawful acts: rate

actions arising out of Respondents’ participation in a

collective ratemaking organization approved and admin-

istered by the Interstate Commerce Commission: and,

to a lesser extent, non-rate actions. With respect to iron

ore rates, Petitioners allege that the Respondent rail-

roads (1) charged inland (line-haul) rail rates from

private docks that were too high, and (2) set handling

charges for self-unloader vessels unloaded at railroad

docks that also were too high. Pet. App. at 8a. As for

non-rate allegations, Petitioners complain about refusals

to sell or lease land suitable for dock operations and un-

specified “harassment” of trucking. Pet. at 3-4. Accord-

ing to Petitioners, “but for” these actions, industries

would have been transformed: steel companies in Ohio

and Pennsylvania would have shifted their iron ore trans-

portation from bulker vessels, railroad docks and rail

service to self-unloading vessels (some of which would

have been built by Litton), private docks (such as Pin-

ney) and trucking. Pet. App. at 10a-1la.

It is undisputed that throughout the twenty-five year

period at issue here Respondents’ rail rates and dock

handling charges were subject to the plenary authority of

the ICC under the standards of the Interstate Commerce

1 The identity of the Respondents and other information required

by Rule 28.1 are set forth in Appendix A.

a ©

3

Act (“ICA”). It is also undisputed that the Respondents

were parties to an ICC-approved rate bureau agreement

and that rates made in accordance with the agreement

were expressly “relieved from the operation of the anti-

trust laws” by statute. See id. at 4a-7a.

2. The Decision Below

The Court of Appeals dismissed Petitioners’ “rate-

related” claims on three independent grounds, and further

held that the statute of limitations barred all federal

claims that occurred more than four years before the

actions were commenced. Pet. App. at 75a-76a. The

court reversed the district court’s orders on these issues

pursuant to 28 U.S.C. § 1292(b).?

The Court of Appeals held that Petitioners’ rate claims

were barred by the express antitrust immunity Congress

provided for collective ratemaking in the Reed-Bulwinkle

Act of 1948. The court based its decision on the statu-

tory language, which exempts the “making” and the

“carrying out” of an ICC-approved rate bureau agree-

ment. Pet. App. at 23a-24a. It also relied on the fact

that Respondents were parties to such an agreement and

that Petitioners had waived any claim that Respondents

did not comply with the terms of the ICC-approved rate

bureau agreement. /d. at Ta, 28a. Consequently, the

legal issue on appeal was whether, as Petitioners argued,

the court should create an exception to the express im-

munity for collective ratemaking which, though squarely

within the statutory protection, allegedly was accom-

panied by “anti-competitive intent.” The Court of Ap-

peals rejected this argument on the grounds that it was

not consistent with the plain language of the statute and

2 The district court previously had denied Respondents’ motions

for summary judgment, but certified its orders for interlocutory

appeal as involving legal issues “as to which there is substantial

ground for difference of opinion.” The Court of Appeals agreed to

review the orders. Pet. App. at 243a, 255a, 315a, 317a.

4

that a judicially-implied exception based on anti-competi-

tive motive would be unworkable since the process of joint

ratemaking endorsed by Congress was itself “undeniably

anti-competitive.” Jd. at 24a.

The Court of Appeals also held that, wholly apart from

the express statutory immunity, the Keogh doctrine pro-

vided an alternative basis for striking the rate claims.

Id. at 16a-22a. Closely following the rationale of this

Court’s opinion in Keogh, the court barred Petitioners’

damages claims “insofar as these claims are based either

on defendants’ own handling charges or on the line-haul

rate that was applied from Pinney Dock.” ZJd. at 16a-

17a, 21a. The court expressly held, however, that Keogh

did not bar Petitioners’ non-rate claims, including the

alleged refusal to sell or lease land and the alleged harass-

ment. Jd. at 2la-22a, 75a-76a.

As a third independent basis for dismissing certain

of Petitioners’ rate claims, the Court of Appeals applied

the principles of antitrust standing established in Asso-

ciated General Contractors of California, Inc. v. Cali-

fornia State Council of Carpenters, 459 U.S. 519 (1983)

(“AGC”). After carefully balancing the factors which

supported and negated Petitioners’ standing, focusing

particularly on the speculative and attenuated chain of

causation underlying Petitioners’ theories, the court held

that “the AGC factors clearly favor defendants.” Pet.

App. at 36a. Accordingly, as a matter of law based on

the complaint allegations, the court dismissed the subject

rate claims on this alternative ground."

The final section of the Court of Appeals’ opinion at

issue here addressed the question whether Petitioners

had raised a triable issue with respect to their assertion

that the four-year limitations period should be tolled on

* Specifically, the court held that “all rate-related claims except

for Pinney’s claim that defendants did not grant it a commodity

line-haul rate [which Respondents did not challenge] are subject to

dismissal on the alternative basis of standing.” Pet. App. at 76a.

henna

5

account of “fraudulent concealment.”* The court care-

fully reviewed the fraudulent concealment standards that

Petitioners were required to satisfy.’ After deciding the

legal standard for “actual concealment,” the court con-

cluded that there might be a genuine factual dispute on

this issue. Pet. App. at 64a. However, with respect to

Petitioners’ separate burden of establishing both lack of

knowledge of, and due diligence in pursuing, their claims,

the court held that there was no escaping the fact that Pe-

titioners had gained sufficient knowledge of the elements

of their claims well more than four years before their

complaints were filed:

[T]he time eventually arrived when the “alleged

conspiracy was no longer concealed and could have

been discovered by due diligence well within the

statutory period for bringing suit.”

Id. Indeed, as to Petitioner Pinney, the court found that

fully twelve years prior to filing its complaint, it had

been advised by counsel to file an antitrust suit “to fight

this combination,” but did not pursue the matter then

because it concluded it would be better to wait until there

was more self-unloader capacity. Jd. at 64a-65a. Having

found no genuine issue of material fact on these essential

elements of the fraudulent concealment doctrine, the court

held that the statute of limitations could not be tolled,

and that Petitioners could only pursue federal claims

arising within the four-year period. Jd. at 76a.

*The Court of Appeals also reversed the district court on the

issue of preemption of state law, holding that the federal four-year

limitations period for antitrust actions does not preempt the appli-

cation of the no-limitation provision in Ohio’s state antitrust stat-

ute. Pet. App. at 7la-75a.

5 It is well-established, and not in dispute here, that an antitrust

plaintiff seeking to avoid the four-year statute of limitations has

the burden of proving three elements: (1) actual concealment of

the unlawful conduct by defendants; (2) lack of knowledge of the

underlying conduct on the part of the plaintiff; and (3) due dili-

gence in seeking to discover its claim. Pet. App. at 37a.

6

REASONS FOR DENYING THE WRIT

To change the result below, Petitioners necessarily have

sought review (and will seek reversal) on at least four

issues. Pet. at i, Questions 1, 2, 3(a) and 3(b). The

Court of Appeals, as explained above, found that three

separate and distinct legal grounds required dismissal of

Petitioners’ rate claims. These alternative holdings are

addressed by Petitioners in Questions 1, 2 and 3(a).®

Thus, to reinstate the essential elements of Petitioners’

Sherman Act claim, this Court would have to grant

certiorari (and ultimately reverse) on all of the questions

presented.

Petitioners’ effort to gain review in this Court begins

with two mischaracterizations. Petitioners contend that

this case presents “important and recurring questions

concerning immunity,” without mentioning that the col-

lective ratemaking by railroads to which the statutory

immunity applied has been a dead letter since shortly

after the 1980 railroad deregulation legislation. Pet. at

10. Petitioners also vastly overstate the holding of the

Court of Appeals as having “conjured up” a broad im-

munity, which “effectively nullified the federal antitrust

laws,” without noting that it was. Congress, not the

court below, that created the express antitrust immunity

for railroad rate agreements during the time period

at issue here, and that the decision below applies this

immunity only to rate actions clearly within the letter of

the statutory provision. Jd. at 10, 12.

The Court of Appeals did not depart from legal prece-

dent, but instead properly applied the governing statu-

tory provisions and decisions of this Court. It most as-

®In their Question 3, Petitioners blend issues relating to both

the statute of limitations and standing holdings below. The stand-

ing element pertains primarily to the rate claims, while the statute

of limitations ruling permits Petitioners to pursue only those fed-

eral claims arising within four years of institution of suit.

7

suredly did not, as Petitioners repeatedly imply, extend its

immunity or Keogh holdings beyond the rate claims to

which Congress and this Court have declared them applic-

able. Jd. On the contrary, Petitioners’ non-rate-based

theories were preserved to the extent such claims were

not otherwise barred by the Clayton Act’s four-year

statute of limitations or standing principles. The ques-

tions presented in the Petition do not warrant this Court’s

attention, either individually or collectively, and the writ

should not issue.

I. Statutory Immunity (Question 1)

Petitioners say that the question presented is

Whether, as the court of appeals held (in conflict

with the District of Columbia Circuit’s decision in

the criminal case against respondents for the same

conduct), the participants in a conspiracy to elimi-

nate direct competitors are immune from antitrust

accountability in the federal courts because they are

regulated by a federal administrative agency.

Pet. at i (emphasis added). This question is not pre-

sented here for the simple reason that it is based on a

totally inaccurate portrayal of the Court of Appeals’

decision. Deferring for the moment the supposed con-

flict in the circuits, it is important to make clear that

the immunity applied by the Court of Appeals is not,

as Petitioners suggest, derived by implication from some

amorphous penumbra of federal regulation. Rather, the

court’s decision is based solely on an explicit statutory

provision by which Congress conferred an express anti-

trust immunity upon railroads for collective ratemaking.

Pet. App. at 22a-28a.

a. The Court of Appeals relied, not merely on the fact

of regulation, but on the plain language of the Reed-

Bulwinkle Act. This immunity statute provided that the

parties to an ICC-approved rate bureau agreement are

8

relieved from the operation of the antitrust laws

with respect to the making of such agreement, and

with respect to the carrying out of such agreement

in conformity with its provisions and in conformity

with the terms and conditions prescribed by the

Commission.*

Properly focusing on the statutory language, the court

recognized that the rate activity Petitioners challenge was

within the statutory protection for “carrying out” the

rate bureau agreement. Pet. App. at 24a-25a. The pur-

pose of the ICC-approved agreement, the court noted, was

“the establishing of rates,” and the ICC contemplated

“concerted activity” when it approved the ratemaking

agreement. Jd. The court’s decision simply acknowledges

that, by jointly deciding upon rates and then charging

those rates, Respondents were engaging in conduct to

“carry out” the agreement.

The Court of Appeals further held that the challenged

rate decisions were made “in conformity with” the agree-

ment approved by the ICC. Indeed, because Petitioners

waived any claim of noncompliance with the Commis-

sion’s authorized ratemaking procedures, this holding was

unavoidable. Pet. App. at 28a.* While Petitioners now

appear to be uncomfortable with that waiver and try to

escape from it, Pet. at 13 n.10, the waiver of all claims

of procedural noncompliance is unambiguous in Petition-

ers’ pleadings before the district court. They repeatedly

represented that they “will not claim that defendants in-

curred antitrust liability by failing to adhere to formal

7™Ch. 491, 62 Stat. 472-73 (1948), codified at 49 U.S.C. § 5b(9)

(1976), recodified, as amended, at 49 U.S.C. § 10706 (1982); Pet.

App. 324a-326a.

8 The Court of Appeals recognized that Petitioners’ waiver of the

procedural compliance issue was made to avoid an otherwise neces-

sary referral (under the primary jurisdiction doctrine) to the ICC

of questions involving interpretation of the Commission’s 5a agree-

ment and orders. Pet. App. 28a.

9

practices or procedures mandated by their 5a agreement

or by the ICC.” C.A. App. 590, 597-98. This case there-

fore does not present any question concerning the anti-

trust implications of failing to follow the rate bureau

procedures upon which the statutory immunity is based.°

b. The Petition seeks to avoid the plain language of

the Reed-Bulwinkle immunity by suggesting that the

Court of Appeals broadened the immunity beyond the

bounds established by Congress. Pet. at 12.

(i) To the contrary, the decision below limited its im-

munity holding to the “rate-related” claims; it did not

confer a general antitrust immunity on the railroads, or

extend this holding to non-rate activities. Pet. App. at

28a, 75a.

(ii) To the extent Petitioners argue that the immunity

should not be given effect as to covered ratemaking be-

cause Petitioners have also alleged that Respondents en-

gaged in other, non-rate conduct which was not subject

to the express immunity, their argument finds no sup-

port in either the language of the statute or its purposes.

The Court of Appeals simply recognized that the con-

duct covered by the express statutory immunity is not

deprived of that immunity because of other conduct al-

leged by Petitioners. Where conduct is immune from

antitrust scrutiny, and even where it is “intended to

eliminate competition,” that conduct remains immune

“either standing alone or as part of a broader scheme

itself violative of the Sherman Act.” United Mine Work-

ers v. Pennington, 381 U.S. 657, 670 (1965). On the

other hand, the decision below properly excluded non-rate

claims from the immunity holding, because they are not

covered by the statutory protection.

® Petitioners’ unseemly attempt to create a belated dispute over

the scope of the waiver is not worthy of this Court’s attention.

10

(iii) Petitioners’ further contention regarding the

“right of independent action,” Pet. at 12, is unavailing

not simply because Petitioners never argued it to the

Court of Appeals, but because it is yet another issue of

compliance with the rate bureau agreement that would

require the referral to the ICC which Petitioners avoided

with their waiver.

ec. As to the conflict in the circuits that Petitioners

advertise in their question presented, it is entirely il-

lusory. Pet. at i, 12-18. The decision on which Peti-

tioners rely, United States v. Bessemer & Lake Erie Rail-

road, 717 F.2d 593 (D.C. Cir. 1983), was on appeal from

a nolo contendere plea in a criminal case, and, as such,

the court had to accept all indictment allegations as true.

Id. at 598. In that posture, the court ruled that the ex-

press immunity did not apply because the indictment made

allegations both of ratemaking that did not conform to

the ICC-approved rate bureau procedures and of non-rate

conduct, which by definition was subject matter “not

within the scope of a Section 5a agreement.” Jd. at 601-

602. Thus, the Bessemer case stands only for the unre-

markable proposition that the immunity is unavailable

for conduct outside the statutory provision, a holding

that is entirely consistent with the Sixth Circuit decision

below.?°

10 Petitioners apparently have abandoned their central argument

below that, based on Atchison, Topeka & S.F. Ry. Co. v. Aircoach

Transp. Ass’n, 253 F.2d 877 (D.C. Cir. 1958), ratemaking explicitly

protected by Congress somehow loses its immunity if it is under-

taken with an “unlawful purpose.” See Pet. at 13 n.9. The Court

of Appeals properly rejected this argument on the grounds that no

such motive exception appeared in the statute, and that to imply

one would defeat the legislative intent to immunize collective rate-

making that was “undeniably anti-competitive.” Pet. App. at 24a.

Moreover, virtually all of the cases cited by Petitioners on this

issue (Pet. at 13 n.9) were decided prior to this Court’s decision in

United Mine Workers v. Pennington, which held that immune ac-

tivity cannot violate the antitrust laws, “either standing alone or

il

d. Petitioners’ final contention on the immunity issue

is difficult to discern, but appears to be that, despite the

plain language of the statute, Congress really meant to

exclude from the Reed-Bulwinkle immunity either all

“eonspiracies,” or at least a “conspiracy to eliminate a

competitor.” Pet. at i, 13-15. Their argument proves

too much, however, for every rate decision collectively

made by competing railroads could be characterized as

a “conspiracy” within the meaning of the Sherman Act,

and, as the Court of Appeals recognized, the scheme of

collective ratemaking Congress intended to promote was

“undeniably anti-competitive.” Pet. App. at 24a. More-

over, Petitioners’ view on this point is refuted flatly by

this Court’s statement in Square D that the Reed-Bul-

winkle Act “created an absolute immunity from the anti-

trust laws for approved collective ratemaking activities.”

Square D Co. v. Niagara Frontier Tariff Bureau, 476

U.S. 409, 419 (1986) (emphasis added). The Court of

Appeals therefore correctly declined Petitioners’ invita-

tion to rewrite the statute in a manner inconsistent with

the clear legislative purpose.”

as part of a broader scheme itself violative of the Sherman Act.”

381 U.S. at 670. Indeed, Aircoach relied on the district court deci-

sion in Noerr, a decision that was ultimately overturned by this

Court. 253 F.2d at 887. See Noerr Motor Freight, Inc. v. Eastern

R.R. Pres. Conf., 155 F.Supp. 768 (E.D. Pa. 1957), aff'd, 273 F.2d

218 (3d Cir. 1959), rev’d, 365 U.S. 127 (1961). It is not surprising

therefore that, contrary to Petitioners’ assertion, the court in

Bessemer pointedly declined to rest its decision upon Aircoach, but

instead evaluated the allegations of the indictment under the

language of the statute. 717 F.2d at 600.

11 Petitioners’ reliance on selected excerpts from the Reed-

Bulwinkle legislative history for a “conspiracy” exception is mis-

placed. Pet. at 14. All the House report says is that the Act would

not affect the outcome of Georgia v. Pennsylvania Railroad Co., 324

U.S. 439 (1945), which predated passage of the Act. The smatter-

ing of comments from the floor debate indicate only that certain

legislators did not intend to immunize certain kinds of conspiracies,

such as ones outside the rate bureau or involving non-rate conduct.

There is nothing in any of this history inconsistent with the judg-

12

e. By the standards that this Court employs to deter-

mine the importance of an issue for certiorari, Petition-

ers’ statutory immunity question is decidedly unimpor-

tant in either a practical or a jurisprudential sense. The

proper scope and construction of the Reed-Bulwinkle im-

munity is now largely beside the point. With the pas-

sage of the Staggers Rail Act of 1980, Congress not only

deregulated many aspects of railroad rates, but substan-

tially restricted antitrust immunity.” As a result, the

railroads’ rate bureau ceased operations many years ago.

Thus, not only was the Court of Appeals correct, but it

is virtually inconceivable that the issue that Petitioners

ask this Court to review will arise ever again.

II. Keogh (Question 2)

Petitioners’ challenge to the Court of Appeals’ alterna-

tive holding, which follows this Court’s decision in Keogh

v. Chicago & Northwestern Railway, 260 U.S. 156

(1922), simply ignores the rationale of that case. The

decision below rejected Petitioners’ argument that the

application of Keogh should depend on who the plaintiff

is in a given case (¢é.g., shipper vs. competitor), because

such a distinction would be inconsistent with Keogh’s

rationale. Pet. App. at 19a-20a. The court recognized

that Keogh focuses on rates and the nature of the anti-

trust claim being made, not the identity of the party

ment below that Respondents’ ratemaking, carried out “in conform-

ity with” their ICC-approved rate bureau agreement, was protected

by the statute. In any event, floor statements, even by a sponsor,

“have never been regarded as sufficientiy compelling to justify a

deviation from the plain language of a statute.” United States v.

Oregon, 366 U.S. 643, 648 (1961). See also Garcia v. United States,

469 U.S. 70, 76-79 (1984) (giving effect to statutory language

despite an inconsistent statement by the floor manager).

12 Pub. L. No. 96-448, 94 Stat. 1895 (1980). Neither the Staggers

Act, nor the earlier Railroad Revitalization and Regulatory Reform

Act of 1976, Pub. L. No. 94-210, 90 Stat. 31 (1976), was claimed to

be applicable to the facts of the instant case. Pet. App. at 7a n.8.

13

making it. If the plaintiff claims that something other

than the filed rate should have been the rate that was

actually charged, then the claim is inconsistent with

Keogh’s holding regarding the legal significance of filed

rates within the framework of the Interstate Commerce

Act and the antitrust laws.

a. In Keogh, this Court held that, having vested the

Interstate Commerce Commission with control and au-

thority over railroad rates, Congress did not intend a

plaintiff to use the antitrust laws to attack existing rates

as unlawful and thereby obtain the benefit of a different

rate than the rate actually filed and authorized under

the ICA. Thus, Keogh concluded that an antitrust claim

could not be maintained where rates were “the instru-

ment by which [the plaintiff] is alleged to have been dam-

aged.” 260 U.S. at 161. Rather, Congress intended the

lawfulness of regulated rates to be the sole province of

the ICA:

A rate is not necessarily illegal because it is the

result of a conspiracy in restraint of trade in viola-

tion of the Anti-Trust Act. What rates are legal is

determined by the Act to Regulate Commerce.

Id. at 162.

This Court reasoned that “[i]njury implies violation

of a legal right,” id. at 163, but the law (the Interstate

Commerce Act) provides that, once a rate is filed with

the ICC and published in the tariff, a carrier may not

charge anything else.’** Unless a filed rate is suspended

or set aside by the Commission, no one may complain

that its legal rights were violated when all that was paid,

13 “N Jor shall any carrier charge ... or receive a greater or less

or different compensation for [the] transportation ... or service

. . . than the rates, fares, or charges which are specified in the

tariff filed and in effect at the time.” Hepburn Act of 1906, ch. 3591,

§ 2, 34 Stat. 584, 586 (1906), codified at 49 U.S.C. § 6(7) (1976),

recodified at 49 U.S.C. § 10761(a) (1982).

14

or charged, was the rate in the filed tariff. Jd. Given the

statutory framework of the Interstate Commerce Act,

a jury empanelled to hear an antitrust case cannot be

allowed as a predicate for condemning existing rates to

speculate about what hypothetical rates might otherwise

have been filed by the carriers and authorized under the

ICA. To permit such speculation about rates that might

have been permissible under the ICA would undermine

the Commission’s ability to preserve a uniform and non-

discriminatory rate structure, as Congress intended. /d.

at 163-64."

Indeed, at the practical core of Keogh is the under-

standing that Congress intended anyone who believes that

rates are too high or otherwise unlawful to take the com-

plaint about those rates to the ICC, which has exclusive

authority to ensure that rates are both reasonable and

non-discriminatory. The shipper in Keogh had the statu-

tory right to take any grievances it had about rates to

the Interstate Commerce Commission, which entertained

such complaints. Here, the Court of Appeals read the

statute and quite properly found that competitors had

exactly the same access to the Commission to complain

about rates as did the shipper in Keogh. Pet. App. at

20a.

14 As a separate element of its reasoning in that case, the Keogh

Court also noted that an award of damages to one shipper might

create discrimination prohibited by the ICA. 260 U.S. at 163. The

Court of Appeals acknowledged that this aspect of the rationale

loses force in a competitor context, but correctly held that the

remaining three prongs of the Keogh rationale were fully applicable.

Pet. App. at 21a.

15 Congress expressly provided that “any person” could file a

complaint at the ICC, and could address “unything done or omitted

to be done” by a railroad in violation of the ICA. Interstate Com-

merce Act of 1887, ch. 104, Pt. I, § 13, 24 Stat. 379, 383-84 (1887),

codified as amended at 49 U.S.C. §$13(1) (19/6), recodified at

49 U.S.C. § 11701(b) (1982) (emphasis added). Recognizing the

breadth of its jurisdiction, the ICC has held that “a complainant,

ee Ny

15

In short, while it is true that the plaintiff in Keogh

was a Shipper, not a competitor, the rationale of the

Keogh decision forces Petitioners to argue for the pro-

verbial distinction without a difference. Indeed, this

Court’s prior decisions properly attribute no significance

under the ICA to the identity of the plaintiff. Terminal

Warehouse Co. v. Pennsylvania Railroad Co., 297 U.S.

500, 514-15 (1936) (relying in part on Keogh to hold

that a private warehouse could not pursue antitrust dam-

ages based on preferential rail rates granted to a com-

peting warehouse); Arrow Transportation Co. v. South-

ern Railway Co., 372 U.S. 658 (1963) (holding without

reference to Keogh that a barge line competing with a

railroad cannot collaterally attack an ICC-regulated rate

in a judicial proceeding) ."*

without regard to the nature of its interests, has a right to com-

plain of anything done or attempted to be done in contravention

of the provisions of the act, and to have its complaint considered on

its merits.” Shaw Warehouse Co. v. Southern Railway, 308 I.C.C.

609, 612 (1959). The ICC has regularly heard complaints of parties

claiming to be competitors, including private docks. See, e.g., U.S.

Phosphoric Products Corp. v. Atlantic Coast Line Railroad, 206

I.C.C. 411 (1935) (ICC considered and rejected complaint of private

dock operator that railroad violated ICA by failing to offer competi-

tive service). In this regard, the Court of Appeals was well aware

that Pinney Dock had carefully considered, threatened and then

rejected making a formal complaint to the ICC about the rates

disputed here. Pet. App. at 64a-65a.

16 Petitioners’ challenge to the Court of Appeals’ reliance on

Georgia as a case applying Keogh where the plaintiff was both a

shipper and a competitor misses the mark. They argue that the

State’s amended complaint reveals that Georgia was seeking dam-

ages only as a shipper, and not in its role as proprietor of a compet-

ing railroad. Pet. at 16-17. This Court’s opinion states, however,

that “Georgia sues as a proprietor to redress wrongs suffered by it

as the owner of a railroad and as the owner and operator of various

public institutions.” 324 U.S. at 447 (emphasis added). The notion

that the Court would have applied Keogh to dismiss Georgia’s ship-

per damage claims, but would not have done so for damage claims

lodged by Georgia as a competitor against the very same rates is

16

Petitioners argue for a limit on Keogh based on their

characterization of Square D as a begrudging reaffirma-

tion, resting more on stare decisis (so Petitioners as-

sert) than on an embrace of its rationale. Pet. at 17.

While the Square D opinion focuses on stare decisis, as

one would expect in a case involving a request to over-

rule a long-standing decision, in fact this Court recog-

nized the breadth of the Keogh doctrine and its historic

significance. Thus, the Court both rejected an attempt to

limit Keogh to its facts, noting that the decision does not

admit of such a “narrow reading,” 476 U.S. at 417 n.19,

and confirmed Keogh’s importance as an “essential ele-

ment of the settled legal context” where the antitrust

and interstate commerce laws intersect. /d. at 423 (em-

phasis added). As the Court of Appeals properly held,

so long as Keogh is good law (and it will be good law

unless Congress acts to overturn it), it simply cannot be

stripped of its rationale and artificiaily confined to its

precise facts.

b. To attract this Court’s attention to Keogh, Peti-

tioners once again mistakenly claim a conflict in the

circuits. The three cases upon which they principally

rely did not involve the Interstate Commerce Act at all,

but related to entirely different regulatory schemes with

different provisions and different legislative intent. See

Essential Communications Systems, Inc. v. AT&T, 610

F.2d 1114, 1120 (8d Cir. 1970) (“The [Communications]

Act does not impose . . . the kind of comprehensive regu-

lation which, after 1920, the ICC exercised over the rail-

unsupported in the decision and implausible in light of Keogh’s

broad rationale and this Court’s refusal, over forty years after

Georgia and sixty years after Keogh, to limit Keogh strictly to its

facts. Square D, 476 U.S. at 417 n.19. But, regardless of how one

interprets the Georgia pleadings, it is clear that there is ample

precedent in this Court for barring a competitor from using the

courts to attack ICC-regulated rates, which is precisely what the

court below did.

17

roads); Litton Systems, Inc. v. AT&T, 700 F.2d 785

(2d Cir. 1983) (Communications Act); City of Groton

v. Connecticut Light & Power Co., 662 F.2d 921 (2d Cir.

1981) (Federal Power Act).’ It is one thing to apply

Keogh according to its terms and rationale to cases sub-

ject to the same regulatory scheme involved in Keogh—

which is what the Court of Appeals did here. However,

it would be quite another thing, and quite improper under

Square D, to seek to undermine Keogh’s rationale on the

bases of dissimilar (and weaker) regulatory schemes, as

Petitioners invite this Court to do. Pet. at 15-16; Square

D, 476 U.S. at 422-23 n.29 (rejecting the proposition

that a decision in the context of maritime regulation

undermines Keogh, because the Federal Maritime Commis-

sion has “far more limited authority over rates than the

‘7 Petitioners’ cases are distinguishable in other important re-

spects. First, in Essential Communications, the “instrument” of in-

jury and damages was not a rate, but a requirement that customers

purchase a piece of equipment. 610 F.2d at 1116. Thus, unlike the

instant cases, the claim did not require the court to make any forbid-

den rate determination. Precisely the same equipment purchase re-

quirement was challenged in Litton, where the Second Circuit held

“this case can be distinguished from Keogh . . . because the issue

here is not the reasonableness of the interface tariff rate as compared

to some other rate that might have been charged, but instead

whether the PCA requirement itself was reasonable.” 700 F.2d at

820. Second, in Essential Communications, the FCC had expressly

“suspended its judgment” on the propriety of the tariff provision in

issue “pending further study,” 610 F.2d at 1124, and, in City of

Groton, the agency had expressly disapproved the tariffs in question.

662 F.2d at 930-31. By contrast, the iron ore rates and rate relation-

ships herein were prescribed by the ICC in 1916 (41 I.C.C. 181) and

changed only by periodic ICC-approved rate increases. Third, unlike

the instant cases, the Third Circuit in Essential Communications

was confronted with an argument by the defendant that FCC regu-

lation provided an implied blanket immunity from the antitrust laws.

610 F.2d at 1116-17. Indeed, when that Court of Appeals faced an

ICA case, it held that a competitor plaintiff could not challenge filed

rates under the antitrust laws, a result wholly consistent with

Keogh and with the decision below. Seatrain Lines, Inc. v. Pennsyl-

vania R. Co., 207 F.2d 255, 260-61 (3d Cir. 1953).

18

Interstate Commerce Act gives the Interstate Commerce

Commission” ).

In addition, Petitioners mention Clipper Exxpress v.

Rocky Mountain Motor Tariff Bureau, 690 F.2d 1240

(9th Cir. 1982). That case did involve the ICA, but the

issue decided there had little to do with the question

presented here. Rather, the focus was on allegations that,

through meritless and sham litigation before the ICC,

a freight forwarder had been prevented from filing a

lower rate for two years. Jd. at 1246-47. Because the

instrument of antitrust injury was frivolous litigation,

not an existing rate (as Petitioners here claim), the

Keogh rationale was not implicated and the Ninth Cir-

cuit panel declined to bar the damage claim. /d. at 1266-

67. The issue decided by that case simply had nothing to

do with the identity of the antitrust plaintiff—the point

that Petitioners press here.

ce. In short, the Keogh issue, like the immunity ques-

tion, is not worthy of certiorari. The decision below

closely and properly followed this Court’s Keogh deci-

sion, and no other circuit has reached a conflicting result

in construing the ICA. Moreover, Congress, to which this

Court in its Square D decision referred the Keogh issue,

is currently considering legislation that would repeal the

doctrine."* For all of these reasons, this Court need not

review Question 2.

Ill. Appellate Jurisdiction (Questions 3(a) and (b))

In the third question presented, while Petitioners do

not raise any issue of the substantive correctness of the

Court of Appeals’ rulings on standing and statute of

limitations, they do complain that the court somehow

treated these two legal issues incorrectly. Their principal

complaint seems to involve the Court of Appeals’ deter-

18S. 443, 100th Cong., Ist Sess. and H.R. 941, 100th Cong., Ist

Sess., 133 Cong. Rec. $1595 and H528 (daily ed. Feb. 3, 1987).

te a AC AEE ol ee

19

mination that the district court should have granted sum-

mary judgment to Respondents on the basis of the statute

of limitations. Pet. at 20-25. Petitioners assert that the

handling of the summary judgment issue was a “jurisdic-

tional error.” Jd. at 20. It is difficult to see any “juris-

dictional” dimension to this issue, but, however denomi-

nated, it is clear that the Court of Appeals handled the

issue properly.

a. In the district court, Respondents moved for sum-

mary judgment dismissing all claims arising prior to the

four-year limitations period. After the completion of

extensive discovery, the district court held that a “self-

concealing” conspiracy suffices to toll the statute of lim-

itations; that even if affirmative acts of concealment

were required, there had been such acts; and that there

were genuine issues of fact that prevented it from find-

ing that Petitioners’ knowledge of the railroads’ actions,

and active consideration of suit many years before ac-

tually bringing suit, warranted the entry of summary

judgment.” The district court denied Respondents’ mo-

tion for summary judgment and certified its order to the

Court of Appeals pursuant to 28 U.S.C. § 1292(b). This

was precisely what § 1292(b) requires:

When a district judge, in making in a civil action

an order not otherwise appealable under this section,

shall be of the opinion that such order involves a

controlling question of law ... and that an im-

mediate appeal from the order may materially ad-

vance the ultimate termination of the litigation, he

shall so state in writing in such order. The Court

of Appeals which would have jurisdiction of an ap-

1 Because statute of limitations/fraudulent concealment was an

important threshold issue, the district court ordered discovery

focused on knowledge and concealment issues, during which over

60 depositions were completed. Only after the conclusion of that

discovery were summary judgment motions filed.

20

peal. ..may... permit an appeal to be taken

from such order ....

28 U.S.C. § 1292(b) (19&2) ‘emphasis added).

Petitioners challenge the Court of Appeals’ “jurisdic-

tion’ on the contentions that “there was no ‘controlling’

legal issue on fraudulent concealment [and] the court of

appeals’ de novo resolution of that issue did nothing to

‘materially advance the ultimate termination’ of this

protracted litigation.” Pet. at 22. The answer to their

first point, quite simply, is that the question whether

the district court erred in declining to grant summary

judgment is an issue of law. The question whether there

are material factual issues of record that preclude the

grant of summary judgment is also a question of law.”’

Indeed, beyond the obvious fact that these ultimate deter-

minations are themselves legal issues, the district court’s

order “involved” (in the words of §1292(b)) other

legal issues, theretofore unsettled in the Sixth Circuit,

concerning the kinds of actions that would amount to

fraudulent concealment—issues that the Court of Appeals

treated and clarified at length in its opinion, rejecting

the district court’s view that a self-concealing conspiracy

20TIt is orders, not issues, that are certified under 28 U.S.C.

§ 1292(b). United States v. Stanley, 107 S. Ct. 3054, 3060 (1987)

(“the Court of Appeals’ jurisdiction is not confined to the precise

question certified by the lower court (because the statute brings the

‘order’, not the question, before the court)”). See also Nuclear Engi-

neering Co. v. Scott, 660 F.2d 241, 246 (7th Cir. 1981) (under Section

1292(b), “all questions material to the order are properly before the

court of appeals”). For this reason, Petitioners’ repeated reference

to the uncertainty over what particular questions had been certified

(Pet. at 19-20) is of no consequence.

21 As the Supreme Court has repeatedly recognized in recent deci-

sions, Rule 56 requires the grant of summary judgment where there

are no material factual disputes such that “the moving party is

entitled to judgment as a matter of law.” See, e.g., Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). See also C. Wright,

The Law of Federal Courts 663-64 (1983).

minamna iii nti ll

21

is sufficient, but upholding the district court’s finding

that there was enough in the record to allow a jury to

find that there was actual concealment. See Pet. App. at

39a-52a, 64a. In finding that Petitioners’ clear knowl-

edge of the railroads’ actions, and in Pinney’s case con-

sideration of an antitrust action twelve years before ac-

tually commencing this suit, precluded tolling the statute

under the separate knowledge and due diligence stand-

ards, the court was also deciding an issue of law that

was unquestionably dispositive and that certainly was

“involved” in the district court’s “order.”

er osc ec on

Petitioners argue—remarkably, we think—that the

court’s disposition of the issue did not materially advance

the case. They say that the disposition of

fraudulent concealment did absolutely nothing to ad-

| vance the litigation because the court simultaneously

held that Ohio’s Valentine Act, providing that ‘“‘no

statute of limitations” would bar an action under

state law was not preempted .... Since the same

facts form the basis for the state and federal causes

of action, the court’s foraging through the facts on

fraudulent concealment was a pointless abuse of

Section 1292 (b) jurisdiction.

Pet. at 22. Not only is their position based on the sur-

prising suggestion that eliminating a federal antitrust

claim is insignificant, but it presupposes a _ prescience

with respect to the outcome of the court’s review that

the interlocutory appeal statute does not expect or re-

quire. The determination of what questions “may mate-

rially advance the ultimate termination of the litigation”

is made at the time the order is certified. The fact that

one of several questions contained in certified orders ul-

timately does not shorten the trial as much as originally

anticipated is irrelevant.”

22 Indeed, Petitioners’ arguments in this respect are disingenuous.

At the time these orders were certified for interlocutory review, the

district court had held that the Valentine Act’s perpetual limitations

22

Finally, Petitioners thoroughly misstate the Court of

Appeals’ holding in an effort to show that the Court of

Appeals “usurped the role of the factfinder.” Pet. at 23.

Petitioners say:

Although concluding that the record “may contain

the seeds of support for the finding of the district

judge that a factual question of actual concealment

was presented’”—a perception that, under the correct

standard of review, requires affirmance—the court of

appeals simply reached a different factual conclusion.

Pet. at 23. The Court of Appeals did no such thing.

What the Court of Appeals found “seeds of support” for

was the district judge’s view that a triable issue existed

as to one element of the fraudulent concealment doc-

trine—the issue of actual concealment by Respondents.

But this was not the dispositive issue. Rather, the ques-

tion of concealment was irrelevant in light of the fact

that both Petitioners possessed sufficient information to

have pursued their claims much sooner, and consciously

elected to sit on their rights: As to Petitioner Pinney,

the court held that “the time eventually arrived when

‘the alleged conspiracy was no longer concealed and could

have been discovered by due diligence well within the

statutory period for bringing suit.’” Pet. App. at 64a.

The court reached the same conclusion with respect to

Litton: “[E]ven if the defendants might conceivably

have misled Litton initially, no reasonable person in the

position of Litton could have long relied on such impres-

sions nor have been dissuaded from exercising due dili-

period was preempted. In light of that ruling, the Court of Appeals’

determination of the federal statute of limitations issue plainly

would have furthered the litigation, for it would have precluded

proof involving 21 years of the alleged 25-year conspiracy. The only

reason that the Court of Appeals’ determination on the federal stat-

ute of limitations issue was not dispositive of a potentially broader

trial is that these very Petitioners sought and obtained interlocutory

review and reversal of the Valentine Act issue that they now claim

rendered the Court of Appeals’ actions improper.

23

gence in investigating possible antitrust liability within

the statutory period.” Jd. at 70a (emphasis added).

Thus, the decision below was fully consistent with court’s

role on interlocutory appeal.**

In short, there was nothing extraordinary or unusual

about the way in which the Court of Appeals addressed

the statute of limitations issue.

b. The other part of Petitioners’ question is their

complaint that the Court of Appeals erred in reaching

the issue of Litton’s standing to bring its rate challenge,

which had not been briefed or decided in the district

court. Respondents had initially suggested in their appeal

brief that it was proper for the appellate court to decide

such an issue of law, and Litton had responded both to

the procedural suggestion and on the merits. Having con-

sidered the legal issue regarding Petitioner Pinney’s

standing to sue, the Court of Appeals realized that the

legal issue was, as a practical matter, fully dispositive

of the issue of Litton’s standing as well. Pet. App. at

32a-37a.

Indeed, there is no practical difference between the

Court of Appeals simply holding that Litton’s claim was

barred on the analysis of standing principles found ap-

plicable to Pinney and remanding to the district court,

which would then have had to dismiss those claims on

the basis of the same analysis. Moreover, the same re-

sult—dismissal of Litton’s rate claims—was_ independ-

ently required by statutory immunity and application of

i

*3 Petitioners complain that the court somehow ignored the appel-

late “abuse of discretion” standard (Pet. at 23) even though, in

reaching its conclusion, the court clearly referred to precisely that

standard. Pet. App. at 52a-53a. Their further chiding of the deci-

sion below as holding that knowledge of unilateral action is sufficient

to toll the statute, and their reliance on cases to the contrary (Pet.

at 22 n.18), are irrelevant here, where the Court of Appeals plainly

found that Petitioners had actual knowledge of collective activity

as well. Pet. App. at 58a-59a, 64a-65a.

24

Keogh. Thus, the error that Petitioners identify—if error

there is—was meaningless as a matter of fact, and al-

ready addressed and settled as a matter of law by this

Court’s recent decision in Stanley. This is certainly not

the kind of issue, without either practical or legal effect,

that this Court should consider as an appropriate basis

for granting certiorari.

CONCLUSION

For the reasons set forth above, the Petition for Writ

of Certiorari should be denied.

Respectfully submitted,

DONALD L. FLEXNER RICHARD J. FLYNN

WM. RANDOLPH SMITH (Counsel of Record)

CLIFTON S. ELGARTEN STEPHEN S. HILL

CROWELL & MORING MERINDA D. WILSON

1001 Pennsylvania Avenue, N.W. SMLEY & AUSTIN

Washington, D.C. 20004-2505 1722 Eye Street, N.W.

(202) 624-2500 Washington, D.C. 20006

Counsel for Respondents (202) 429-4000

Chesapeake & Ohio Railway Counsel for Respondent

Company, Norfolk & Western Railway

Baltimore & Ohio Railroad Company

Company and

KENNETH C. ANDERSON

JAMES V. DICK

TIMOTHY W. BERGIN

SQUIRE, SANDERS & DEMPSEY

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 626-6600

Counsel for Respondent

Bessemer and Lake Erie

August 10, 1988 Railroad Company

CSX Corporation

Se arate. Nahe Eh Nate ales Mate NB

la

APPENDIX A

Pursuant to Supreme Court Rule 28.1, Respondents

provide the following information:

1. Respondent CSX Corporation has the following non-

wholly-owned subsidiaries and affiliates: Country Wide

Transport Services, Inc.; Baronial Transportation Corpo-

ration; Akron and Barberton Belt Railroad Company

(The) ; Akron Union Passenger Depot Company (The) ;

Allegheny and Western Railway Company; Wesjax De-

velopment Company; Augusta and Summerville Railroad

Company; Baltimore and Philadelphia Railroad Company

(The); Beaver Street Tower Company; Belt Railway

Company of Chicago; Central Florida Pipeline Corpora-

tion; Central Railroad Company of South Carolina

(The) ; Central Transfer Railway and Storage Company;

Chatham Terminal Company; Chicago and Western In-

diana Railroad Company; Clearfield and Mahoning Rail-

way Company; Cleveland Terminal & Valley Railroad

Company (The); CSX Services, Inc.; Dayton and Michi-

gan Railroad Company; Dayton and Union Railroad

Company; Delaware and Bound Brook Railroad Com-

pany; First Georgia Development Corporation; Home

Avenue Railroad Company (The); Lakefront Dock and

Railroad Terminal Company (The); Monongahela Rail-

wav Company (The); Norfolk and Portsmouth Belt Line

Railroad Company; North Charleston Terminal Com-

pany; Paducah & Illinois Railroad Company; Richmond-

Washington Company; RF&P Corporation; Terminal

Railroad Association of St. Louis; Trailer Train Com-

pany; Baltimore and Cumberland Valley Rail Road Ex-

tension Company (The); Winston-Salem Southbound

Railway Company; Woodstock & Blocton Railway Com-

pany; Energy Dominion; Gemetal Distribution Services

Company; Yukon Pacific Corporation; Green’s Creek

Joint Venture; High Island Offshore System; Norbritex

Joint Venture; Poles Limited; Lanai Resort Partners;

2a

James Center Development Company; Mid Allegheny

Corporation; Staten Island-Cranford, Inc.; Glebe Road

Associates; Glebe Road II Associates; Glebe Road III

Associates; Glenway Associates; Richmond Center Asso-

ciates; St. George Seaport Associates; and LightNet.

2. The Bessemer and Lake Erie Railroad Company is

wholly-owned (except for directors’ qualifying shares)

by USX Corporation, with no subsidiaries of its own. Non-

wholly-owned subsidiaries and affiliates of USX Corpora-

tion are: ACE Holdings, Ltd.; Adela Investment Com-

pany, S8.A.; Altos Hornos de Vizeaya, S.A. (AHV); Asso-

ciated Manganese Mines of South Africa, Ltd.; Associated

Ore & Metal Corporation, Ltd.; Athione Prospecting & De-

velopment Corporation, Ltd.; Avateel SWA, Ltd.; Blue

Grass Phosphate Company; Kapps Mining & Prospecting

Co., Ltd.; La Pointe Iron Company; Navios Shipping

Corp., Oresteel Investments (Proprietary), Ltd.; Prieska

Copper Mines (Pty.) Ltd.; Société Des Mines De Fer De

Guinée Pour L’Exploitation Des Monts Nimba ( Mifergui

Nimba) ; Tilden Iron Mining Company; The West Union

Canal Company; U.S. Steel France; and Zuari Agro

Chemicals Ltd.

3. Respondent Norfolk and Western Railway Company

has the following non-wholly-owned subsidiaries: The

Wabash Railroad Company and The Wheeling and Lake

Erie Railway Company. Norfolk and Western is a

wholly-owned subsidiary of Norfolk Southern Corpora-

tion. Norfolk Southern has the following non-wholly-owned

subsidiary whose stock is publicly traded: Southern Rail-

way Company. The Southern Railway Company has the

following non-wholly-owned subsidiaries: High Point,

Randleman, Asheboro and Southern Railroad Company;

Mobile and Birmingham Railroad Company; The North

Carolina Midland Railroad Company; The South Western

Rail Road Company; State University Railroad Com-

pany; Yadkin Railroad Company.