Amicus Curiae Brief — Interstate Commerce Commission v. Pittsburgh & Lake Erie Railroad

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c) RIDCED

No. 88-217 -

1988

JOSEFH F. SPANIOL, JR.

IN THE CLERK

Supreme Court of the United PH

OCTOBER TERM, 1988

INTERSTATE COMMERCE COMMISSION,

Petitioner,

Vv.

THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY and

THE RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE

ASSOCIATION OF

TRANSPORTATION PRACTITIONERS

IN SUPPORT OF PETITION

BETTY JO CHRISTIAN

1830 Connecticut Avenue, N.W.

Washington, D.C, 20036

Counsel for Association of

Transportation Practitioners

Of Counsel:

CHARLES G. COLE

GERARD FE, WIMBERLY, JR.

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

September 2, 1988

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

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TABLE OF CONTENTS

Page

pF OP EB a ty 6 og ogee ii

INTEREST OF THE AMICUS CURIAE ...................... 1

SUMMARY OF ARGUMENT ................ AE eae A 8

Ns a oe cesehgnsatiaiaacnsiinanieiee 4

I. THE ICC HAS INDEPENDENT LITIGATING

Fg, RY ROI A Sas Te RE Oe aS 4

A. The ICC Has Clear Statutory Authority To

Intervene In Any Case Where The Validity

Of Its Order Is In Question .................0000000.... 4

B. A History Of Congressional Review Supports

The Independence Of The ICC’s Litigating

Ee eenchdbthapdntbicipicnedithctenacakedsbieetrsccieasesesess 6

C. The ICC Has Traditionally Exercised Inde-

pendent Authority To Intervene To Protect

Its Orders From Collateral Atttack .............. 11

D. ICC’s Litigating Authority Is An Exception

To DOJ’s Ordinary Power To Control And

Supervise Government Litigation.................... 18

II. EXECUTIVE CONTROL OVER THE ICC’S

LITIGATING AUTHORITY WOULD UNDER-

MINE THE ICC’S ROLE AS AN INDEPEND-

ENT REGULATORY COMMISSION WITHIN

THE CONSTITUTIONALLY MANDATED

SEPARATION OF POWERS ................00cc0000 16

PION Ai ies cies sinc annintepinaesAuphabibancilabasstaicndiidilienmatiniabde 20

ii

TABLE OF AUTHORITIES

CASES Page

Akers Motor Lines, Ine. v. Malone Freight Lines,

Inc., 88 F. Supp. 654 (N.D. Ala. 1950).............-.--- 11

Baggett Transp. Co. v. Hughes Transp., Inc., 393

F.2d 710 (8th Cir.), cert. denied, 393 U.S. 936

(19GB) ..ccncccecssuscnisesssesstntehephinnnalisihaaeaanaaas 11

Baltimore & O. R. Co. v. Chicago Junction Ry. Co.,

156 F.2d 867 (7th Cin 20Gb) icc 11

B. F. Goodrich v. Northwest Indus., Inc., 424 F.2d

1349 (3d Cir.), cert. denied, 400 U.S. 822(1970).. 11, 12

Burlington Northern v. Oklahoma Tax Comm’n,

USS. , 107 S. Ct. 1855 (1987) ................ 6

Cleveland-Clifis Fron Co. v. Chicago & North West-

ern Transp. Co., Nos. 81-1372, 81-1523 (6th Cir.

1982), aff’g 516 F. Supp. 339 (W.D. Mich.) .... 11

F.T.C. v. Guignon, 390 F.2d 323 (8th Cir. 1968) .... 6

Funbus Sys., Ine. v. California Public Utils.

Comm’n, 801 F.2d 2120 (9th Cir. 1986) .............. 11

Hanna Mining Co. v. Escanaba & Lake Superior

R.R., 498 F. Supp. 1267 (E.D. Mich), aff’d, 664

pee 2 ee: ) ee Ree 11

Harris Transfer & Warehouse Co. v. Louisville &

N. R. Co., 72 F. Supp. 389 (N.D. Ala. 1947) —...... 11

Humphrey's Executor v. United States, 295 U.S.

602 (1935)... as ...4, 18, 19

Kansas City Terminal ‘Ry. Co. v. . Hyman-Michaels

Co., 98 F.R.D. 362 (N.D. TB. 196%) ....................... 11

Kansas City Terminal Ry. Co. v. Jordan Mfg. Co.,

FOO FD GEE (Pile Ce Tae ict ners ace cccesccincerene 11

Lorillard v. Pons, 434 U.S. 575 (1977) ...-....-.---------- 13

Lynch v. Public Service Comm’n of Nevada, 376

F. Supp. 1033 (D. Nev. 1974) -.--.--------------------+--+- 11

Morrison v. Olson, No. 87-1279 (U.S. June 29,

V9BB) oo ccnnccacsscionssnesesecwsassnspiacenenemenpentarsas ieaatsereesastete 16, 18

Munitions Carriers Conference, Inc. v. American

Farm Lines, 415 F.2d 747 (10th Cir. 1969) -....... 11, 12

United States v. I.C.C., 337 U.S. 426 (1949)............ 5, 15

OE

iii

TABLE OF AUTHORITIES—Continued

: Page

United States v. Providence Journal Co., US.

» oe &. Ce. 1668. (7988) 4, 13, 14, 16

United "States v. Western Pacific R.R., 352 U.S. 59

(1956) ... PR BE 29 ET CO 12

STATUTES

Interstate Commerce Act, Pub. L. No. 49-104, 24

Nee accep hivmumenomapems 17

Pub. L. No. 50-382, 25 Stat. 858 (1889) ..........__. 17

Hepburn Act, Pub. L. No. 59-337, 34 Stat. 591

i on nl ed A a a a 6

Mann-Elkins Act,

Pub. L. No. 61-218, 36 Stat. 555 (7910) —........ 6

Urgent Deficiencies Act,

Pub. L. No. 63-32, 38 Stat. 219 (1913) —........ 9

Pub. L. No. 61-152, 41 Stat. 492 (1920) 7

Pub. L. No. 93-584, 88 Stat. 1917 (1974) —....... 9

8 3, 13

4 8, ea een 3, 13, 14

OS | ERTL IT 14

a Ne 6. : eae 3, 4, 5, 6, 14

I I I OE ican ccnnsconcnonsnsnanesonnsane 9

| ___ ae 17

49 U.S.C. § 10301(f) (1982)... 3, 4, 5, 6, 12, 14, 17

WO Ne I nc cn cceseeseccen ses enens 3, 12, 17

LEGISLATIVE MATERIALS

S. 711, 100th Cong., ist Sess., 133 Cong. Rec. S 3005

Saeeer aa, pee 22. S0GU8 18

H.R. 1155, 100th Cong., Ist Sess., 133 Cong. Rec.

H 734 (daily ed. February 19, 1987) _........... 18

S. 539, 100th Cong. ist Sess., 183 Cong. Rec.

S 2228 (daily ed. February 19, 1987) ._......... 18

Senate Committee on Governmental Affairs, 95th

Cong., 2d Sess., 5 Study on Federal Regulation

SE _, : Saar 8

H.R. Rep. No. 1569, 93d Cong., 1st Sess. 7031-1,

GRRE LET ST ea te a ee ene 9,10

iv

TABLE OF AUTHORITIES—Continued

S. Rep. No. 355, 61st Cong., 2d Sess., pt. 2, at 6

CI SAAR ES ele OM REE

H.R. Rep. No. 923, 61st Cong., 2d Sess. 3 (1910)....

45 Cong. Rec. 3355-6, 4517, 4575-7, 5416, 5516,

5517, 6391-4, and 6451 (1910) ..............2222..........

MISCELLANEOUS

Arpaia, “The Independent Agency—A Necessary

Instrument of Democratic Government,” 69

aS LF OR Se

Bell, “The Attorney General: The Federal Govern-

ment’s Chief Lawyer and Chief Litigator, Or

One Among Many?” 46 Fordham L. Rev. 1049

CTF O Ge} asenssctpncnsantonsantepniiontieetanpimamennteieindenaaidint 15,

Remarks of FTC Commissioner Terry Calvani,

“The Federal Trade Commission: A Proposal

For Radical Change,” Trade Reg. Rep. No. 860

CO EE is BD eeletntandintiteitincttintinnns

W. L. Cary, Politics and The Regulatory Agencies

R. E. Cushman, The Independent Regulatory Com-

CD 2 hhc ieerniecaceeabeeaties 7,

Interstate Commerce Commission, Eighty-Third

SATII FRE, EID wacnctisacitnincseictnindosctecntitctiies

Interstate Commerce Commission, Eighty-Second

a ieikeenacniionts

MacIntyre, “The Status of Regulatory Independ-

| ge Re > aR

| McCree, “The Solicitor General and His Client,” 59

ee et, Pe eee emer

2 1. L. Sharfman, The Interstate Commerce Com-

SE la ditchtet adi ob

4 I. L. Sharfman, The Interstate Commerce Com-

A IIE acciotindbncNadcsedhiascleni has caict tae

Stern, “ ‘Inconsistency’ In Government Litigation,”

69 Harv. L. Rev. 759 (1951) ........ Reet AL Tees

17, 18

16, 18

16

19

17, 19

12

12

15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-217

INTERSTATE COMMERCE COMMISSION,

Petitioners,

THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY and

THE RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE

ASSOCIATION OF

TRANSPORTATION PRACTITIONERS

IN SUPPORT OF PETITION

INTEREST OF THE AMICUS CURIAE!

The Association of Transportation Practitioners

(“ATP”), founded in 1929, is an association of approxi-

mately 2,000 lawyers and other transportation profes-

sionals who represent their clients, both shippers and

carriers, in matters before transportation regulatory

agencies, including the Interstate Commerce Commission

(“ICC” or “Commission”) as well as the courts. ATP

members provide business and legal advice concerning

the laws and regulations applicable to transportation. A

primary goal of the ATP is the promotion of effective

and fair adjudication of transportation disputes.

1 This brief is filed pursuant to Supreme Court Rule 36 and is

accompanied by the written consent of petitioner and respondents.

2

The ICC’s independent litigating authority serves that

goal by enabling the ICC to intervene in lawsuits that

involve collateral attacks on final ICC orders. In those

situations, the representations of the ICC are critical aids

to the bar and the courts in determining the scope and

effect and increasing understanding of the ICC orders

under attack. Because members of the ATP rely on the

certainty and clarity of ICC orders in advising their

clients, the ATP has a strong interest in the illumina-

tion that ICC intervention provides in the case of a col-

lateral attack.

ATP believes the present case is one to which the

ICC’s independent litigating authority to protect a final

order from collateral attack properly should apply. If

the Department of Justice (“DOJ”) is allowed to veto

the ICC’s participation in this and like cases, collateral

attacks on ICC orders will be encouraged. At a mini-

mum, this would make reliance on final ICC orders a

matter of great risk.*

In addition, the members of the ATP are concerned

that the effect of placing ICC intervention under the

control of the DOJ could undermine the ability of the

ICC to carry out its function as an independent regula-

tory agency. The views of the ICC on matters of trans-

portation policy do not always coincide with those of the

DOJ. Whatever the merits of their respective views in

any given case, the ATP believes it is essential that the

voice of the ICC always be heard. No one (including, as

we understand it, the Solicitor General) questions the right

of the ICC to present its own views when its orders are

directly appealed to a court of appeals or to this Court.

It is essential that the same right exist where, as here,

the attack on an ICC order assumes an indirect form.

Any other rule would seriously compromise the independ-

ence of the agency as a transportation policy-maker and

2 The ATP takes no position here on the merits of the underlying

dispute.

adjudicator—a role upon which all parties involved in

transportation rely.

For reasons set forth in the ICC’s petition, and those

set forth below, this Court should uphold the Commis-

sion’s right to continue this litigation in its own right,

by its own attorneys.

SUMMARY OF ARGUMENT

Congress through 28 U.S.C. § 2323 and 49 U.S.C.

§ 10301(f) has vested the ICC with independent litigating

authority not subject to control in any manner by DOJ.

The Commission has the right to intervene “in any action

involving the validity” of one of its orders, pursuant to

section 2323, and has the power to “appoint and super-

vise” its own attorneys to represent the ICC “in any case

in court,” pursuant to section 10301(f). Legislative his-

tory confirms congressional intent to place no restrictions

on the ICC’s litigating authority. In particular, Congress

in 1910 rejected a presidential proposal to put ICC litiga-

tion under the control of DOJ, and then in 1974, Con-

gress literally guaranteed the independence of the ICC

from DOJ, during the course of debates over amendments

to the Hobbs Act.

There is a long history of independent ICC interven-

tion in private lawsuits where the validity of an ICC

order is in question. The ICC has intervened in these

private disputes without seeking DOJ authorization. Con-

gress undoubtedly has been aware of these ICC inter-

ventions, especially through ICC annual reports submitted

pursuant to 49 U.S.C. § 10311. Reports just prior to the

1974 debates, for example, notified Congress of signifi-

cant litigation in which the ICC had intervened without

DOJ.

DOJ does not otherwise have statutory authority to

control ICC litigation. ICC litigating authority is an ex-

press exception to the statutory powers of the Attorney

General (28 U.S.C. § 516) and the Solicitor General (28

U.S.C. § 518) to supervise government litigation. See

OO

4

United States v. Providence Journal Co.,

108 S. Ct. 1502, 1509 n.9 (1988).

Finally, the ICC, as an independent regulatory commis-

sion, has been given an independent statutory mission by

Congress to regulate interstate commerce. Independent

litigating authority is integral to the ICC’s ability to

carry out its mission. Interference by DOJ with the ICC,

therefore, amounts to an unconstitutional overreaching

of executive power. See Humphrey’s Executor v. United

States, 295 U.S. 602 (1935).

ARGUMENT

I. THE ICC HAS INDEPENDENT LITIGATING AU-

THORITY

A. The ICC Has Clear Statutory Authority To Inter-

vene In Any Case Where The Validity Of Its Order

Is In Question

There are two separate statutes that confer on the

ICC clear authority to litigate independently in a case |

such as this: section 2323 of the Judiciary Code, Title 28,

and section 10301(f) of the Interstate Commerce Act, |

Title 49.

By the plain wording of 28 U.S.C. § 2323, Con-

gress has vested the ICC with the authority to intervene

in any case to protect the validity of its orders. The

statute specifically makes the ICC’s litigating authority

independent and not subject to control by DOJ in any

manner:

US. —,

The Interstate Commerce Commission and any party

or parties in interest to the proceeding before the

Commission, in which an order or requirement is

made, may appear as parties of their own motion

and as of right, and be represented by their counsel,

in any action involving the validity of such order or

requirement ....

(Emphasis added.) The statute does not qualify or limit

the scope of the ICC’s power to litigate to protect the

validity of an order, nor has Congress restricted this

power to a particular type of court proceeding.

5

Equally plain from the statutory language is the in-

ability of the DOJ to interfere with the ICC’s exercise

of its authority to intervene to protect its orders subject

to attack. Section 2323 in pertinent part provides that:

The Attorney General shail not dispose of or discon-

tinue said action or proceeding over the objection of

such party or intervenor, who may prosecute, defend

or continue said action . . . unaffected by the action

nor nonaction of the Attorney General therein.®

(Emphasis added.) This Court made clear in United

States v. 1.C.C., 387 U.S. 426, 482 (1949), that the stat-

ute contemplates that the DOJ and the ICC might appear

at times in opposition as separate and distinct parties

with clashing positions:

For, whether the Attorney General defends or not,

the Commission and the railroads are authorized to

interpose all defenses to the Government’s charges

and claims .... In this case [they] have availed

themselves of this statutory authorization. They

have vigorously defended the legality of the allow-

ances and the validity of the Commission order at

every stage of the litigation.

Section 2323 thus accommodates the interests of the

executive branch and those of the ICC by ensuring that

each can be represented but neither controls the other in

court.

The Interstate Commerce Act itself contains an addi-

tional source of independent ICC litigating authority

where it gives the ICC the right to hire its own attor-

neys. Section 10301(f) provides, inter alia, that the

Chai:iman of the ICC shall “appoint and supervise .. .

attorneys to provide legal aid and service to the Com-

mission .. . and to represent the Commission in any case

in court.” (Emphasis added.) Like section 2323 of Title

* The statute’s reference to the ability to “prosecute,” as well as

defend, an action indicates that the ICC’s independent litigating

authority is not limited to defense of its order on direct appeal to

a reviewing court.

6

28, section 10301(f) is a grant of unqualified litigating

authority outside of the control and supervision of the

Attorney General, consistent with the nature and pur-

poses of the ICC.* The Act nowhere limits the ICC’s

attorneys to litigation in particular proceedings or other-

wise designates that in some instances they will answer

not to the Chairman of the Commission but to the Attor-

ney General.

B. A History Of Congressional Review Supports The

Independence Of The ICC’s Litigating Authority

At various instances since the establishment of the

ICC in 1887, Congress has considered legislation affect-

ing the ICC’s independent litigating authority. On every

such occasion, the ICC’s broad independence from DOJ

has been reaffirmed.

First, the evolution of the language of section 10301

(f) reflects congressional intent to establish and main-

tain unrestricted ICC litigating authority. That section

originated in section 5 of the Hepburn Act of 1906,

where Congress authorized the Commission to “employ

special counsel in any proceeding under this Act... .”*

When the short-lived commerce court was created a

few years later, the authority was amended by sec-

tion 13 of the Mann-Elkins Act of 1910 to employment

of “attorneys ... to appear for and represent the commis-

sion in any case pending in the commerce court... .” ®

Following dissolution of the commerce court in 1913,

4 See F.T.C. v. Guignon, 390 F.2d 323, 325 (8th Cir. 1968), con-

trasting the FTC’s section 9 enforcement power, which the court

found not independent of the Attorney General, with “a grant of

general authority for the agency’s lawyers to represent it in court,

as in 49 U.S.C.A. 16, par. (11) ....” (Emphasis added.) 49 U.S.C.

16, par. (11) was subsequently recodified as section 10301(f)(1).

The recodification made no substantive change in the statute. See

Burlington Northern v. Oklahoma Tax Comm'n, U.S. ——, 107

S. Ct. 1855 (1987).

5 Pub. L .No. 59-337, 34 Stat. 591.

® Pub. L. No. 61-218, 36 Stat. 555.

7

Congress deleted the reference to the “commerce court”

and substituted the current language: “in any case in

court.”* This last change, made over 60 years ago,

reflects a removal of the only arguable restriction ever

placed on the forum in which ICC attorneys could

litigate.

Second, in 1910, Congress also debated a proposal by

President Taft to place all litigation involving ICC orders

under the DOJ.* Congress rejected that proposal in

large part because it would have subjugated the ICC to

the Attorney General in contests over Commission or-

ders. The compromise was to permit both the DOJ

and the ICC to litigate where the validity of an ICC

order was in question. Each body would be free to repre-

sent its own views without interference from the other.

The debates in 1910 centered on a danger that DOJ

control over ICC litigation would destroy the ICC as an

independent commission created by the legislature. The

following statement by Representative Hitchcock fairly

summarizes the concerns of that Congress over President

Taft’s proposal:

The whole tendency of this bill as it has been pre-

sented is to belittle the commission. The bill tends

to put the [ICC] under the judicial thumb of this

new commerce court, which is given almost absolute

power. Now if we go yet further and take away

from our commission the power which it has hereto-

fore had, to defend in any court the orders which

it has issued . . . we complete the work of belittling

the commission and extinguish its power of self-

preservation. We... subordinate it... to the At-

torney General .... He is not the proper officer to

7 Pub. L. No. 61-152, 41 Stat. 492 (1920).

8 See R. E. Cushman, The Independent Regulatory Commissions

96-99 (1941); see also H.R. Rep. No. 923, 61st Cong., 2d Sess. 3

(1910).

® See generally 45 Cong. Rec. 3355-6, 4517, 4575-7, 5416, 5516,

6391-4, and 6451 (1910).

8

control, prosecute and defend cases involving the

powers of the Interstate Commerce Commission.”

Congress in 1910 did not want ICC orders defended only

by the inexpert (and possibly antagonistic) DOJ. The

Senate Minority Report recommending rejection of Presi-

dent Taft’s proposal warned that DOJ control over liti-

gation involving an ICC order would offer “the amazing

spectacle . . . constantly presented of a review of the

orders of the commission not by a court, but by the De-

partment of Justice ....”" Compounding the problem

would be the lack of expertise in the DOJ regarding “the

vast details of evidence” and “the complications and in-

tricacies of rates and transportation conditions.” ”

The Senate Committee on Governmental Affairs in

1977 reached a similar interpretation of the 1910 legis-

lative history as confirming the independent litigating au-

thority of the ICC:

As originally established, the ICC had independent

litigating authority. The Interstate Commerce Act

provided that the ‘Commission in its own name’

could apply to the courts for enforcement of its

orders. But in 1910, as an alternative to vesting all

ICC litigating powers in the Justice Department,

Congress modified that authority [in the Mann-

Elkins Act of 1910]. The act was further amended

to read that the Commission may employ attorneys

‘to appear for or represent the Commission in any

case in court.’ On their face, those provisions would

appear to grant independent litigating authority.*

The most recent and perhaps clearest instance where

Congress has stated its intent to maintain the ICC’s

independent litigating authority occurred in 1974 when

Congress amended the Administrative Orders Review

10 Jd. at 5517.

11§. Rep. No. 355, 61st Cong., 2d Sess., pt. 2, at 6 (1910).

12 Jd.

13 Senate Committee on Governmental Affairs, 95th Cong., 2d

Sess., 5 Study on Federal Regulation 58-59 (Comm. Print 1977).

lt

9

Act of 1950 (the “Hobbs Act amendments’’)** to place

review of ICC orders in the court of appeals rather than

the three-judge district courts previously provided by

the Urgent Deficiencies Act of 1913.% The provisions

for ICC litigating authority were left unchanged follow-

ing assurances from the executive branch that the ICC

would continue to control litigation concerning its orders.

Although the Hobbs Act amendments generally in-

volved only procedures for direct judicial review of Com-

mission orders, Congress deliberated the overall question

of the ICC’s relationship with DOJ in cases concerning

ICC orders. The ICC, worried that the change in pro-

cedure might be interpreted to restrict its litigating

authority, asked Congress to

guarantee ... its right to continue to defend its ac-

tions at all levels of judicial review independent of

the discretion of the Attorney General .... In es-

sence, the Commission is concerned that, through the

Attorney General’s—or the Solicitor General’s, at

the Supreme Court level—discretionary use of his

statutory power to ‘control the interests of the gov-

ernment,’ they may suffer a damaging qualification

of their right to independent representation which

they now enjoy as a matter of right.’

The ICC then urged an amendment that would (1) des-

ignate the Commission instead of the United States as

the named party in attacks on ICC orders and (2) deny

the Attorney General any “control” over litigation con-

cerning the orders. As part of his showing of the-ICC’s

traditional litigating authority, ICC Chairman Stafford

informed Congress that “as a matter of practice, the ICC

has since 1913 represented itself before the Supreme

Court.” ” ”

14 Pub. L. No. 93-584, 88 Stat. 1917 (1974) (codified as amended

at 28 U.S.C. §§ 2341, et seq. (1982) ).

1 Pub. L. No. 63-32, 38 Stat. 219.

16 H.R. Rep. No. 1569, 93d Cong., Ist Sess. 8 (1974).

17 Jd. at 17 n.16 (statement of ICC Chairman George Stafford).

10

Congress decided that the amendments proposed by

the ICC were unnecessary, because the statutes preserved

all of the independent litigating rights historically ac-

corded the Commission:

Objectively, it is difficult to perceive what more the

Congress may do legislatively to protect the rights of

the ICC... to be shielded from possible caprice....

The ICC may still intervene at any level as a matter

of right and be represented by its counsel... .%*

To emphasize congressional intent, the Committee insisted

that the ICC would remain in control of its litiga-

tion.” Congress, moreover, relied on express assurances

from the Attorney General and the Solicitor General

that “the independence of the Commission with respect

to its ability to participate fully and equally in all pro-

ceedings affecting its interests will not be tampered with

an any respect.” *°

Thus the 1974 Congress was consistent with prior

Congresses in deliberating amendments affecting ICC liti-

gation: in every instance, the full independence of the

Commission from DOJ has been affirmed. That this au-

18 Jd, at 9 (emphasis added).

19 The House Report explains that in the face of a threat by DOJ

to “terminate a proceeding over their objection .... [t]he intent

and meaning of the above provisions [28 U.S.C. §§ 2321, et seq.)

could not be stated with more clarity: the Committee is compelled

to conclude that any such activity ... would be subject to challenge

in court.” Jd.

20 Id. (emphasis added) ; see id. at 10-14 (letter from W. Vincent

Rakestraw, Assistant Attorney General, to Hon. Peter W. Rodino,

Jr., and letter from Robert H. Bork, Solicitor General, to Hon. Quen-

tin N. Burdick); see also id. at 16 (statement of ICC Chairman

George Stafford), noting that ‘“‘the public inteerst is best served by

guaranteeing the Commission the right which it presently has to

defend its actions independent of the views of the Department of

Justice.” The concern was specifically raised about preserving ICC

litigating authority at the Supreme Court level where the “Solicitor

General assumes a more active role... .” Jd.

11

thority specifically encompasses interventions, without

leave of DOJ, in collateral proceedings like the present

case is evident from a long history of such interventions.

C. The ICC Has Traditionally Exercised Independent

Authority To Intervene To Protect Its Orders From

Collateral Attack

Until the present case, the ICC without interference

from DOJ has exercised its independent litigating au-

thority to intervene in private lawsuits that it believes

constitute a collateral attack on one of its orders. Mem-

bers of the ATP are aware of at least twelve reported

cases spanning the last four decades in which the ICC

intervened without the United States.27 The ATP mem-

bers know of no case, reported or unreported, in which

the Commission has asked permission of DOJ to inter-

vene in a private dispute affecting the validity of an

ICC order.

The courts have welcomed ICC intervention in such

cases to assist in interpreting the ICC’s orders. For

example, in Kansas City Terminal Ry Co. v. Hyman-

Michaels Co., the district court remarked that “{b]oth the

21 See Funbus Sys., Inc. v. California Public Utils. Comm’n, 801

F.2d 1120 (9th Cir. 1986) ; Kansas City Terminal Ry. Co. v. Jordan

Mfg. Co., 750 F.2d 551 (7th Cir. 1984); Cleveland-Cliffs Iron Co.

v. Chicago & North Western Transp. Co., Nos. 81-1372, 81-1523

(6th Cir. 1982), aff’g 516 F. Supp. 399 (W.D. Mich.); B.F. Good-

rich v. Northwest Indus., Inc., 424 F.2d 1349 (3d Cir.), cert. denied,

400 U.S. 822 (1970) ; Munitions Carriers Conference, Inc. v. Ameri-

can Farm Lines, 415 F.2d 747 (10th Cir. 1969); Baggett Transp.

Co. v. Hughes Transp., Inc., 393 F.2d 710 (8th Cir.), cert. denied,

393 U.S. 936 (1968); Baltimore & O. R. Co. v. Chicago Junction

Ry. Co., 156 F.2d 357 (7th Cir. 1946); Kansas City Terminal Ry.

Co. v. Hyman-Michaels Co., 93 F.R.D. 362 (N.D. Ill. 1981); Hanna

Hining Co. v. Escanaba & Lake Superior R.R., 498 F. Supp. 1267

(E.D. Mich), aff'd, 664 F.2d 594 (6th Cir. 1981); Lynch v. Public

Service Comm’n of Nevada, 376 F. Supp. 1033 (D. Nev. 1974);

Akers Motor Lines, Inc. v. Malone Freight Lines, Inc., 88 F. Supp.

654 (N.D. Ala. 1950); Harris Transfer & Warehouse Co. v. Louis-

ville & N. R. Co., 72 F. Supp. 389 (N.D. Ala. 1947).

12

court and the initial litigants will benefit from the ICC’s

assistance in defining the scope” of an ICC order at issue

in the case.” In B. F. Goodrich Co. v. Northwest Indus.,

Inc., the Third Cireuit Court of Appeals disagreed with

another case on the interpretation of section 5 of the

Interstate Commerce Act, and observed that the other

case was “a decision significantly made without benefit

of Commission participation.” *

Congress undoubtedly has known all along about this

historical practice of ICC intervention in private law-

suits. The ICC under 49 U.S.C. § 10311 annually submits

detailed reports to Congress explaining its significant liti-

gation activities. Private lawsuits in which the Commis-

sion has intervened to protect the validity of an ICC

order have been reported directly to Congress. In the

1968 annual report to Congress, for example, the ICC

reported that it had intervened in Munitions Carriers

Conference v. American Farm Lines,* a private dispute

involving the lawfulness of defendants’ transportation of

certain traffic. In its 1969 annual report the ICC noted

Munitions Carriers again, together with a companion

case, “in both of which the Commission participated.” *

These reports, of course, were sent to Congress only a

few years before it deliberated the Hobbs Act amend-

ments in 1974 and expressly concluded that those amend-

22 93 F.R.D. at 364.

23424 F.2d at 1356. This reflects the rationale that supports

the referral mechanism (28 U.S.C. § 1398) where there is an issue

within the primary jurisdiction of the agency—the court, to do

justice, should hear what the expert agency has to say on an

issue within the agency’s expertise. “[I]ssues of transportation

policy . . . ought to be considered by the Commission in the interests

of a uniform and expert administration of the regulatory scheme

laid down by th[e] Act.” United States v. Western Pacific R.R.,

352 U.S. 59, 65 (1956).

*4415 F.2d 747 (cited and discussed in Interstate Commerce

Commission, Eighty-Second Annual Report 88-89 (1968) ).

*5 Interstate Commerce Commission, Eighty-Third Annual Report

97 (1969).

13

ments would leave the ICC’s independent litigating

authority intact.”

D. ICC’s Litigating Authority Is An Exception To

DOJ’s Ordinary Power To Control And Supervise

Government Litigation

The Solicitor General has no overriding statutory au-

thority to veto the ICC’s decision to participate in this

case. However broad may be the statutory powers of the

Attorney General (28 U.S.C. § 516) and the Solicitor

General (28 U.S.C. § 518), they are subject to exceptions

provided by Congress. In United States v. Providence

Journal Co., US. , 108 S. Ct. 1502 (1988), de-

cided last term, this Court recognized that the independ-

ent litigating authority of the ICC constitutes such an

exception.

As in the present case, the Solicitor General in Provi-

dence Journal wrote a letter to the Court which “denied

the special prosecutor authority to represent the United

States in this Court ....”*" This Court dismissed the

writ of certiorari after finding that “the court appointed

prosecutor who sought certiorari and briefed and argued

the case without authorization of the Solicitor General

may not represent the United States before this court

..’*> The Court reasoned that Supreme Court actions

“in which the United States is interested” have to be

conducted and argued by the Solicitor General under 28

U.S.C. § 518(a),” despite the prior, separate appointment

of the special prosecutor.*°

26 See Lorillard v. Pons, 434 U.S. 575, 580-81 (1977) (Congress is

deemed to adopt preexisting judicial and administrative interpreta-

tion of a statute when it reenacts the statute without change).

27108 S. Ct. at 1503.

28 Jd. at 1504.

29 Id. at 1507.

*© The basis for the Solicitor General’s power, section 518(a),

satisfies “the concern that the United States usually should speak

with one voice before this Court, and with a voice that reflects not

the parochial interests of a particular agency, but the common inter-

a iain

14

At the same time, however, this Court recognized that

Congress in some instances has in fact created another

voice for the government in the Supreme Court. The

Court observed that “Congress has enacted some provi-

sions that suggest exceptions to the blanket coverage of

§ 518(a),” including (1) the Tennessee Valley Authority,

by virtue of its authority “ ‘to represent itself by attor-

neys of its choosing’”’; (2) the independent counsel, by

virtue of his or her authority under 28 U.S.C. § 601 (a)

“to initiate and conduct prosecutions ‘in any court of

competent jurisdiction . . . in the name of the United

States’”; and (3) the ICC by virtue of its overall “in-

dependent litigating authority.” “' Like the TVA and the

independent counsel, the ICC derives its independent liti-

gating authority from a statute that empowers the Chair-

man to hire attorneys to represent the Commission “in

any case in court” (49 U.S.C. § 10301(f)) as well as

from one that authorizes it to “prosecute, defend or con-

tinue such action or proceeding unaffected by the action

or inaction of the Attorney General” (28 U.S.C.

§ 2323) .*

ests of the Government and therefore all of the people.” 108 S. Ct.

at 1510. This familiar rationale for reserving Supreme Court litiga-

tion to the Solicitor General is usually qualified by the competing

concern that the Solicitor General should not be a policy-meker (a

“super agency”) in developing the position of the United States.

See McCree, “The Solicitor General and His Client,” 59 Wash. U.L.qQ.

337, 345 (1981).

31108 S. Ct. at 1509 n.9 (citing Stern, “ ‘Inconsistency’ in Gov-

ernment Litigation,” 64 Harv. L. Rev. 759 (1951), for a discussion

of the ICC’s litigating authority).

32 Perhaps another argument that there is a limitation to the

Solicitor General’s general control over government litigation in the

Supreme Court is supported by the literal wording of section

518 of Title 28. Section 518 empowers the Solicitor General to “con-

duct and argue suits and appeals in the Supreme Court... in which

the United States is interested” (emphasis added), but nowhere

determines who files petitions and briefs in the Court. One authority

suggests that section 518, therefore, “does not give the Solicitor

General the veto power over which cases can be appealed to the

15

The ICC is permitted and indeed sometimes expected

to raise a voice in court inconsistent with the DOJ.** The

commentary cited by Providence Journal for the proposi-

tion that the ICC has independent litigating authority

observed that

if the Commission and the Department of Justice

cannot agree as to what position should be taken, or

whether a case should be appealed, no single author-

ity has power to determine what should be done, and

each agency can insist that its own views be pre-

sented to the courts.**

The DOJ in the past has acknowledged that Congress

set the ICC apart from the executive branch and created

an independent voice in government litigation. In 1978

then-Attorney General Griffin Bell explained that with

the creation of the ICC Congress redefined DOJ’s own

role in government litigation:

The creation of the first independent regulatory

agency, the Interstate Commerce Commission, in

1887, with the express congressional intent that it

not be under the control of the President or the ex-

ecutive branch, added a new dimension to what

Congress intended the role of the Department of

Justice to be.*

Attorney General Bell reviewed the various failed at-

' tempts by the executive branch to bring the ICC under

the wing of the DOJ and concluded that the ICC was

Supreme Court,” MacIntyre, “The Status of Regulatory Independ-

ence,” 29 Fed. B.J. 1, 8 (1969), even though the Solicitor General

may have a unique position once they have been accepted for review.

33 See United States v. I.C.C., 337 U.S. at 432. Thus in the instant

case, if the DOJ disagrees with the ICC’s position, it is free also to

intervene and to express its own views.

34 Stern, “ ‘Inconsistency’ In Government Litigation,” 64 Harv.

L. Rev. 759, 760-61 (1951).

35 Bell, “The Attorney General: The Federal Government’s Chief

Lawyer and Chief Litigator, Or One Among Many?” 46 Fordham

L. Rev. 1649, 1054 (1978).

a a

16

granted as early as 1920 broad litigating authority to ap-

pear “in any case,” independent of DOJ.”

The DOJ, therefore, is asserting control over the ICC

against the grain of two statutes, decades of legislative

history, and a backdrop of traditional ICC litigation prac-

tice of which Congress undoubtedly has been aware. This

action by the Solicitor General, furthermore, is improper

under Providence Journal and this Court’s analysis of

the statutory separation of the Solicitor General and the

ICC, a separation recognized and heretofore observed in

practice by the Attorney General.

II. EXECUTIVE CONTROL OVER THE ICC’S LITI-

GATING AUTHORITY WOULD UNDERMINE THE

ICC’S ROLE AS AN INDEPENDENT REGULATORY

COMMISSION WITHIN THE CONSTITUTIONALLY

MANDATED SEPARATION OF POWERS

DOJ’s attempt to preclude the ICC from presenting

certain issues of transportation policy to this Court not

only conflicts with long-standing congressional intent, but

also raises a difficult question of constitutional separation

of powers. As recently as Morrison v. Olson, No. 87-1279

(U.S. June 29, 1988), this Court indicated that inter-

ference by the executive branch with independent agents

or agencies created by Congress can raise constitutional

concerns as an overreaching of executive power.” The

question is whether the ICC, by virtue of its status as an

independent agency with statutory litigating authority, is

protected from control by DOJ, an arm of the executive

branch.* The ATP submits that it is.

36 Jd. at 1056.

37 Slip op. at 29-38.

*8 The DOJ appears to be challenging the validity of independent

agencies in general as not legitimately beyond executive control.

This concern is shared by other regulatory commissions. See Re-

marks of FTC Commissioner Terry Calvani, “The Federal Trade

Commission: A Proposal For Radical Change,” Trade Reg. Rep.

No. 860 (CCH) (May 6, 1988).

17

The ICC, created by Congress in the Interstate Com-

merce Act of 1887 to administer and enforce the Act’s

requirement of non-discriminatory railroad rates® is ihe

oldest independent regulatory commission * with far-

reaching discretion to administer and adjudicate disputes

involving railroads, motor carriers and water carriers.

In the organic provisiors of the Act, Congress provided

at the outset in its description of the ICC that “[t]he

Interstate Commerce Commission is an independent es-

tablishment of the United States Government.” *

Congress in 1889 severed the ICC’s only direct link to

the executive branch when the Commission’s reporting

and administrative relationship with the Department of

the Interior was discontinued and the ICC was required

to submit annual reports directly to Congress. Numer-

ous attempts since 1889 by the executive braneh to assert

control over the Commission have been rejected by Con-

gress, including, as discussed above, the proposal by Pres-

ident Taft in 1910 to put all litigation concerning ICC

39 Pub. L. No. 49-104, 24 Stat. 379 (codified as amended at

49 U.S.C. §§10101, et seq. (1982)). See Arpaia, “The Independ-

ent Agency—A Necessary Instrument of Democratic Government,”

69 Harv. L. Rev. 483 (1956) (“[The] objective was the creation of a

continuing expert regulatory machinery which would insure equal

treatment and aid in bringing about the free flow of commerce

throughout the nation at reasonable and nonpreferential rates, with-

out unjust discrimination as to persons or localities.’’).

4° “Independent regulatory commissions” are defined generally as

agencies created by Congress to be separate from the executive

branch. “By an ‘independent reglatory commission,’ then, is meant

any commission, board, or authority which lies outside the regular

executive departments and which has for its major job the exercise

of some form of restrictive or disciplinary control over private

conduct or private property.” R. E. Cushman, supra note 8, at 4.

41 49 U.S.C. § 10301(a) (1982). In the words of one commentator

“the Commission is no more a part of the national administration

... than is the Supreme Court.” 2 I.L. Sharfman, The Interstate

Commerce Commission 454 (1931).

42 Pub. L. No. 50-382, 25 Stat. 858 (1889) (codified as amended

at 49 U.S.C. 10311 (1982)).

18

orders under the direct control of DOJ.* The President’s

authority with regard to the Commission, as presently

constituted, properly begins and ends with the appoint-

ments power. For the executive branch to reach beyond

that is to upset the constitutional separation of powers

and checks and balances of power between the coordinate

branches of government.“

In the seminal case Humphrey's Executor v. United

States, 295 U.S. 602 (1935) ,*° this Court made clear that

improper encroachments on the authority of independent

regulatory commissions by the executive branch are un-

constitutional. This Court held in Humphrey’s Executor

that the executive branch is prohibited under the con-

stitution from removing commissioners of an independent

regulatory commission at will. Such action would be an

overreaching by the executive branch on an agency

created by Congress to be independent of the executive

and to carry out legislative policy. Speaking of the

43 See Arpaia, supra note 39, at 487-490, discussing (1) the Presi-

dent’s proposal in 1902 to transfer the ICC’s duties to the Depart-

ment of Commerce; (2) several plans in 1920-34 for dividing ICC

powers; and (3) two bills introduced in 1947 to establish a Depart-

ment of Transportation and subordinate the ICC to it—all of which

failed to persuade Congress to alter the independent status of the

ICC. See also Bell, supra note 35, at 1049-55.

4* There have been various proposals during recent years to curtail

the Commission as an independent agency and to transfer those

regulatory functions not totally eliminated to the Department of

Transportation. See, e.9., S. 711, 100th Cong., ist Sess., 133 Cong.

Rec. S 3005 (daily ed. March 11, 1987); H.R. 1155, 100th Conz., Ist

Sess., 133 Cong. Re- "{ 734 (daily ed. February 19, 1987); S. 539,

100th Cong., Ist Sesa., 133 Cong. Rec. S 2228 (daily ed. February 19,

1987). The ATP takes no position as to whether, as a matter of

policy, such legislation should be enacted. Our position is simply

that unless and until Congress enacts legislation placing the ICC or

its functions within the executive branch, the type of control that

DOJ here asserts is inconsistent with the constitutional framework

of separation of powers.

** The continuing validity of Humphrey's Executor was recently

squarely reaffirmed in Morrison v. Olson, No. 87-1279, slip op. at

28-35.

oe

19

Federal Trade Commission, this Court stated a rule that

applies equally to the ICC:

The Commission [FTC} is to be non-partisan; and

it must, ‘rom the very nature of its duties, aet with

entire impartiality. It is charged with the enforee-

ment of no policy except the policy of the law. Its

duties are neither political nor executive, but pre-

dominantly quasi-judicial and quasi-legislative. Like

the Interstate Commerce Commission, its members

are called upon to exercise the trained judgment of a

body of experts . . . a body which shall be indepen-

dent of executive authority, except in its selection,

and free to exercise its judgment without the leave

or hindrance of any other official or any department

of government.”

The principal reason for independent commissions is

to check and balance executive power in selected areas

of legislative concern. It follows that independent com-

missions “are not directly accountable to the President.

They lie outside the executive department .... [Ojnly

in very limited circumstances, if at all, can the Presi-

dent compel the commissions to conform to his policies.” “

The Solicitor General’s eoercive action here is incon-

sistent with the balance of powers among the branches of

government and the nature of an independent regulatory

commission within that framework of coordinate power

recognized by Humphrey's Executor. In intervening in

private litigation to protect the validity of its orders, the

ICC (the model* for independent commissions in our

government) is accomplishing the statutory mission that

Congress entrusted to it. By seeking to prevent the ICC

46 295 U.S. at 624, 625-26 (emphasis added); see also, 4 I.L. Sharf-

man, The Interstate Commerce Commission 259 (1937).

47 R. E. Cushman, supra note 8, at 667.

*8 One commentator observed that of all the independent agencies,

“the ICC is the most independent.” W. L. Cary, Politics And The

Regulatory Agencies 32 (1967).

20

from having a voice in such cases, the DOJ is interfering

with that mission at a critical moment—the moment when

law is applied to a concrete set of facts. It is no more

constitutional for an arm of the executive, the DOJ, to

preclude the ICC’s access to the courts, pursuant to its

statutory litigating authority, when the validity of one

of its orders is under collateral attack, than it is for the

President to remove a commissioner at will (as in Hum-

phrey’s Executor).

CONCLUSION

This Court should accept the ICC’s petition for a writ

of certiorari despite the Solicitor General’s letter to the

Clerk attempting to revoke the ICC’s authority to liti-

gate. Such an assertion of power by a department of the

executive branch disregards the statutes and their legis-

lative history, the ICC’s long-standing practice of inter-

vening in collateral actions to protect its orders, and

separation of powers between the executive branch and

the legislative branch that created the ICC as an inde-

pendent regulatory commission.

Respectfully submitted,

BETTY JO CHRISTIAN

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

Counsel for Association of

Transportation Practitioners

Of Counsel:

CHARLES G. COLE

GERARD E. WIMBERLY, JR.

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

September 2, 1988