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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 965

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2152%3A7. Public record. Not legal advice.