Interstate Commerce Commission v. Brotherhood of Locomotive Engineers

PETITIONER: Interstate Commerce Commission
RESPONDENT: Brotherhood of Locomotive Engineers
LOCATION: Dixie Furniture Store

DOCKET NO.: 85-792
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 482 US 270 (1987)
ARGUED: Nov 10, 1986
DECIDED: Jun 08, 1987

Henri F. Rush - for petitioner in No. 85-792
Henri F. Rush, Jr. - on behalf of the Petitioner ICC
Harold A. Ross - on behalf of the Respondnet Brotherhood/Locomotive Engineers
John B. O'Clarke, Jr. - on behalf of the Respondent United Transportation Union
Joseph L. Manson, III - on behalf of the Petitioner MC-KS-TX Railroad

Facts of the case


Media for Interstate Commerce Commission v. Brotherhood of Locomotive Engineers

Audio Transcription for Oral Argument - November 10, 1986 in Interstate Commerce Commission v. Brotherhood of Locomotive Engineers

William H. Rehnquist:

We will hear arguments next in two consolidated cases, Interstate Commerce Commission against Brotherhood of Locomotive Engineers and Missouri-Kansas-Texas Railroad Company against Brotherhood of Locomotive Engineers.

You may proceed whenever you're ready, Mr. Rush.

Henri F. Rush, Jr.:

Mr. Chief Justice, and may it please the Court:

The Interstate Commerce Commission is the Federal agency charged with implementing what this Court has recognized on a number of occasions to be a national policy favoring consolidation of the railroads in the interests of improving the economy and efficiency of their operation.

The Commission is also charged with implementing the Congressional structure established to promote the privately initiated transactions being presented in a single forum for a fair but expeditious proceeding.

This case involves the consequences of the Interstate Commerce Commission's approval of a railroad consolidation transaction.

The statutory provision primarily implicated is 49 U.S.C. 11341(a), which provides in relevant part that a carrier participating in an approved transaction, quote, is exempt from the antitrust laws and from all other laws, as necessary, to let that person carry out the transaction, end of quote.

The Commission, with the approvals of the courts, over a long period of time, has interpreted that section to be self-executing, which is to say that individuals desiring to consummate a transaction, negotiate their deal, and bring it to the Commission for a proceeding in which all persons with the many and varied conflicting interests that arise in these transactions are permitted to make their case before the Commission.

The Commission, upon the record made at that time, determines whether the transaction is, or can be made to be, consistent with the public interest, and approves, disapproves, or conditionally approves that transaction.

Sandra Day O'Connor:

Mr. Rush, did the respondents in this case raise their argument about their rights under the collective bargaining agreement before the ICC at its hearings on the merger?

Henri F. Rush, Jr.:

They did not, Justice O'Connor.

Sandra Day O'Connor:

Well, how is it that they can raise them later?

Raise that argument later?

Henri F. Rush, Jr.:

The guise, if you'll--

Sandra Day O'Connor:

Why aren't they precluded from doing that?

Henri F. Rush, Jr.:

--Well, the court below held that they the jurisdiction to determine whether the Commission had improperly failed to clarify at the request of the petitioners.

We did not argue that they did not have what I would call the limited jurisdiction to determine whether that denial was arbitrary and capricious.

The majority of the court then went on--

Sandra Day O'Connor:

You took the position that it was perfectly all right for them to come in later and raise the issue; is that it?

Henri F. Rush, Jr.:

--No, that's not our position at all.

But in terms of the question of how the court was able to address it, that's the way the court was able to address it.

Our position is that all of the arguments ought to be raised at the time of initial consideration of the transaction.

Sandra Day O'Connor:


So it may turn on timeliness, when they can raise it.

If they didn't raise it then, why can they now?

It just... I don't understand.

Henri F. Rush, Jr.:

Well, I think that an argument can be made for waiver of rights not raised at the proper time before the agency's procedure.

And that was one of the arguments, of course, that we raised before the court below.

At the same time--

Antonin Scalia:

It isn't just that.