UNITED TRANSPORTATION UNION, PETITIONER V. INTERSTATE COMMERCE
COMMISSION, ET AL.

   No. 89-1642

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Brief For The Federal Respondents In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-25a) is reported
at 891 F.2d 908.  The order of the Interstate Commerce Commission
(Pet. App. 29a-44a) is reported at 5 I.C.C.2d 7.  The Commission's
order proposing its rulemaking (Pet. App. 45a-53a) is not reported;
notice of the rulemaking is published at 53 Fed. Reg. 12,443.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 28,
1989.  A petition for rehearing was denied on January 22, 1990.  Pet.
App. 28a.  The petition for a writ of certiorari was filed on April
23, 1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether petitioner, a union for railway employees, lacked standing
to challenge the decision of the Interstate Commerce Commission to
exempt certain officers or directors of rail carriers from obtaining
prior approval to hold the position of officer or director of another
rail carrier.

                               STATEMENT

   1. The Staggers Rail Act of 1980 directed the Interstate Commerce
Commission to exempt a transaction or class of transactions from its
regulation when the Commission finds that:  (1) regulation is not
necessary to carry out the rail transportation policy set forth in 49
U.S.C. 10101a, and (2) either the transaction is of limited scope, or
regulation is not needed to protect shippers from abuse of market
power.  49 U.S.C. 10505(a).  As the House Conference Report explained,
the purpose of Section 10505 was to provide the Commission with
sufficient flexibility to accomplish Congress's intention
substantially to deregulate the rail industry.  H.R. Conf. Rep. No.
1430, 96th Cong., 2d Sess. 105 (1980).  Congress expected that "as
many as possible of the Commission's restrictions on changes in prices
and services by rail carriers will be removed (through the use of
Section 10505) and that the Commission will adopt a policy of
reviewing carrier actions after the fact to correct abuses of market
power." Ibid.  /1/

   2. Section 11322(a) of the Interstate Commerce Act provides that a
person may not hold the position of officer or director of more than
one rail carrier without the ICC's authorization;  the ICC, in turn,
may authorize such interlocking directors or officers "when public or
private interests will not be adversely affected." 49 U.S.C. 11322(a).
 Pursuant to its authority under Section 10505, in April 1988 the ICC
published a notice of proposed rulemaking to exempt the officers and
directors of certain rail carriers from obtaining prior approval for
interlocking arrangements under 49 U.S.C. 11322(a).  Pet. App.
45a-53a.  The proposal applied to interlocking arrangements except
those involving two or more "class I" railroads.  /2/ The ICC
explained that its proposal was designed to eliminate the expense and
delay accompanying individual applications and exemption petitions.
In the ICC's view, the prior approval requirement (except as retained)
was unnecessary to further rail transportation policy.  Moreover, the
Commission emphasized that other federal and state law remedies --
including its authority to review a particular transaction or to
revoke an exemption (49 U.S.C. 10505(d)) -- can provide effective
relief in the event that an interlocking directorate or officership
results in anticompetitive behavior.  Pet. App. 48a-49a.

   Four comments were submitted on the ICC's proposed rule.  The only
comments opposing the exemption were those of Patrick W. Simmons,
Illinois Legislative Director for the United Transportation Union, a
union of railway employees.  Simmons argued that the proposed
exemption would be anticompetitive, that existing procedures were not
burdensome, and that without the prior approval requirement, the ICC
and the public would lack the facts needed to evaluate proposed
interlocks.  After evaluating those comments, the Commission
determined that the proposed exemption satisfied the requirements of
Section 10505 and issued a decision promulgating final rules.  Pet.
App. 29a-44a.

   3. Petitioner then filed a petition for review to challenge the
Commission's decision.  /3/ The court of appeals dismissed that
petition on the ground that petitioner failed to show Article III
standing to litigate that claim.  Pet. App. 1a-25a.

   The court noted that under this Court's precedents, to establish
standing a complaining party must show that he has suffered "actual or
threatened injury";  that the injury is fairly traceable to the
defendant's challenged conduct;  and that the injury can be redressed
by a decision in the plaintiff's favor.  Pet. App. 6a (quoting Valley
Forge Christian College v. Americans United for Separation of Church
and State, Inc., 454 U.S. 464, 472 (1982)).  The court further pointed
out that "abstract," "conjectural," or "hypothetical" claims of injury
are inadequate.  Id. at 6a (quoting Allen v. Wright, 468 U.S. 737, 751
(1984)).  When a litigant alleges only future injury, he "must
demonstrate a realistic danger of sustaining a direct injury" to
establish standing.  Id. at 10a (quoting Babbitt v. United Farm
Workers National Union, 442 U.S. 289, 298 (1979)).

   Applying those principles, the court of appeals held that
petitioner's claims of future injury were too speculative to confer
standing in this case.  /4/ Petitioner's allegation was that railroad
workers would be harmed by the "unauthorized control and manipulation
of carriers" and by "the financial wrecking of rail carriers" that
would purportedly result from the challenged exemption.  Pet. App.
10a.  Although petitioner did not spell out this allegation of injury,
the court "surmise(d)" that petitioner meant to claim that the ICC's
exemption would produce at least one interlocking directorate that
would not have existed otherwise;  that such an additional interlock
would cause a railroad bankruptcy or anticompetitive conduct;  and
that a union member would consequently incur injury.

   The court believed, however, that the chain of events that would
have to occur to inflict injury on petitioner was simply too
conjectural.  As to the first step of the analysis, the court found
that there was no showing that the "prior approval" requirement would
actually prevent the formation of any interlocking directorates or
officerships.  The court observed that the ICC had not rejected
applications for interlocking arrangements in nearly twenty years;
thus, the exemption was not likely to produce any additional
interlocks.  As to the second step, the court found no plausible basis
for believing that a director's holding of two positions would result
in the financial ruin of a railroad.  Such an event would require the
assumption that a director would violate his fiduciary duties and
legal obligations by sabotaging his company's operations.
Alternatively, with respect to the fear that interlocking directorates
might engage in anticompetitive conduct, the court pointed out that
this would not necessarily harm union members.  Rather, by easing
pressures to cut costs, reduced competition among railroads would be
as likely to help as to harm railroad employees.  Accordingly, finding
the asserted injury to be "fatally speculative," the court concluded
that it was insufficient to afford standing.  Pet. App. 9a-12a.

   The court also concluded that it was not required to defer, for
Article III purposes, to statements in legislative history from the
early part of this century to the effect that interlocking
directorates would ruin railroads financially.  The court found that
such observations did not accurately describe the workings of the rail
industry today and could not provide a rational basis for inferring
petitioner's standing here.  Pet. App. 14a-19a.  /5/

   In a separate opinion, Judge Ruth B. Ginsburg concurred in the
denial of the petition for review.  Pet. App. 22a-25a.  In her view,
the question of standing merged with the merits of petitioner's
challenge to the ICC's exemption.  Accordingly, Judge Ginsburg would
have reached the merits and would have ruled that petitioner's
challenge to the ICC's exemption was without substance.  Id. at 22a.

                               ARGUMENT

   Petitioner contends (Pet. 10-16) that the court of appeals erred in
holding that it lacked standing to challenge the ICC's decision in
this case.  The court's decision, however, is fully consistent with
the fundamental principle that speculative claims of future injuries
do not provide standing to litigate in federal court.  Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 44 (1976).

   Earlier this Term, the Court reaffirmed the rule that speculative
claims of injury do not satisfy Article III standing requirements.
Whitmore v. Arkansas, 110 S. Ct. 1717 (1990).  In Whitmore, the Court
held that a death row inmate lacked standing to challenge another
inmate's capital sentence because his theory of injury was too
speculative.  The Court "reiterate(d)" that "(a)legations of possible
future injury do not satisfy the requirements of Art. III." Rather,
"(a) threatened injury must be 'certainly impending' to constitute
injury in fact." Id. at 1724-1725, quoting Babbitt v. United Farm
Workers National Union, 442 U.S. 289, 298 (1979).  See also Golden v.
Zwickler, 394 U.S. 103, 109 (1969) (refusing to entertain a former
Congressman's challenge to rules that could apply to him only in some
future, unplanned candidacy);  O'Shea v. Littleton, 414 U.S. 488, 497
(1974) (rejecting an effort of a person to enjoin a local magistrate
and judge from committing claimed illegal practices in criminal cases,
when plaintiff could not show that he would be subject to future
criminal charges);  Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)
(finding inadequate the claim of a person that he would suffer injury
from an alleged illegal police "chokehold," when the injury would
occur only if he were to be arrested in the future and police applied
the chokehold);  Diamond v. Charles, 476 U.S. 54, 66 (1986) (treating
as "unadorned speculation" a physician's claim that he would be
injured by nonenforcement of a law restricting abortions because he
would thereby lose access to paying patients).

   Similarly, here, the court of appeals correctly ruled that
petitioner's theory of injury was too speculative to meet the
requirements of Article III.  /6/ Petitioner pointed to no concrete,
threatened harm that rail labor will suffer as a result of the ICC's
exemption from prior approval of interlocking directorates and
officerships.  The ICC's consistent historical practice of approving
applications for interlocking directors and officers significantly
undermines the force of any contention that insisting on prior
approval in each case would affect the formation of such interlocking
arrangements.  And the ICC's exemption does not authorize the
formation of any interlocking directorates that were not permissible
under prior law;  the ICC simply removed an impediment to establishing
such relationships in the first instance.  This approach leaves in
place the administrative machinery for challenging and unwinding such
arrangements if they threaten the rail transportation policy committed
to the ICC's care.  In addition, remedies for misconduct by
interlocking directors or officers are unaffected by the ICC's order
and remain available under the federal antitrust laws and under state
law.  /7/ Against that background, petitioner's fear of hypothetical
injury lacked the immediacy needed to invoke federal jurisdiction.
/8/

   Without seriously disputing the court's analysis, petitioner urges
that standing should be conferred on it here because there is a
presumption in favor of judicial review of agency action, railroad
labor organizations are active participants in the ICC's regulatory
process, and rail employees are within the "zone of interests" to be
protected by Section 11322(a).  Pet. 10-15.  But to establish
standing, it is not sufficient that Congress provided for judicial
review of ICC orders under the Hobbs Act, 28 U.S.C. 2341 et seq.  Cf.
Allen v. Wright, 468 U.S. 737, 754 (1984) ("(A)n asserted right to
have the Government act in accordance with law is not sufficient,
standing alone, to confer jurisdiction on a federal court.").  Nor is
it enough that Congress contemplated that rail employees would have an
opportunity to be heard in ICC proceedings.  Cf. Director, OWCP v.
Perini North River Associates, 459 U.S. 297, 304 (1983).  Finally,
even if petitioner satisfied the "zone of interest" test, /9/ that
test supplements, not supplants, the constitutional requirement that
every complainant in federal court must demonstrate a concrete injury.
 Clarke v. Securities Industry Ass'n, 479 U.S. 388, 394 n.7 (1987).

   In passing, petitioner suggests that the court should have found
standing on the basis of statements in legislative history in 1914
that "there is injury from interlocking directorates." Pet. 12.  The
court of appeals, however, noted that interlocking directorates among
railroads were formed "virtually at will over the past 40 years,
despite Section 11322(a), with absolutely no evidence of any railroad
failure (or collusive behavior) resulting therefrom." Pet. App. 19a.
In these circumstances, the court correctly held that the general
views expressed in the 1914 legislative history about the dangers of
interlocking directorates do not support petitioner's claim of
standing.  Moreover, even if general legislative concerns about
interlocking directorates were given credence here, petitioner does
not explain how those concerns are linked to its claimed threat of
injury from the particular ICC action at issue.  The issue here is
whether the ICC's limited exemption from prior approval of
interlocking arrangements portends any authentic threat of harm to
petitioner.  On that issue, the legislative history (which did not
deal with such procedural issues) affords petitioner no basis for
contending that it has established standing.  /10/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /11/

   ROBERT S. BURK

      General Counsel

   HENRI F. RUSH

      Deputy General Counsel

   EVELYN G. KITAY

      Attorney Interstate Commerce Commission

   JUNE 1990

   /1/ The Commission has implemented Section 10505 by exempting from
its normal regulatory procedures rail services and transactions in a
variety of contexts.  See, e.g., Illinois Commerce Commission v. ICC,
848 F.2d 1246 (D.C. Cir. 1988), cert. denied, 109 S. Ct. 783 (1989).

   /2/ The Commission divides the nation's railroads into three
classes according to annual operating revenues for three consecutive
years.  Class I railroads are the largest carriers;  there are only 16
of them, but collectively they operate approximately 82 percent of the
nation's track mileage, employ 90 percent of the railroad labor force
and earn 92 percent of the revenues of the rail industry.  There are a
total of 484 class II and class III railroads.  Pet. App. 4a.

   /3/ The petition for review was filed by Patrick Simmons, but the
court of appeals changed the caption of the case to reflect
petitioner's name;  it explained that "Simmons does not even have
putative standing as an individual and * * * subsequent submissions
indicate that he actually represents the (United Transportation
Union)." Pet. App. 2a n.1.

   /4/ The court applied the three-part test governing a union's
standing to assert its members' claims set forth in Hunt v. Washington
State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).  It
concluded that since petitioner's members would not have standing to
sue in their own right (the first factor under Hunt), the other two
factors did not warrant discussion.  Pet. App. 2a.

   /5/ The court also rejected an allegation by petitioner (which the
court construed as alleging "procedural" injury) that the Commission's
current procedures should be retained to develop a public record on
interlocking officers and directors that would facilitate challenges
by petitioner to such arrangements.  Pet. App. 19a-21a.  "Given the
utter speculativeness of the petitioner's allegation of substantive
injury," the court saw "no reason to allow petitioner to sue on a
theory that the ICC's exemption has made it marginally more difficult
for the union to challenge interlocking directorates in the future."
Id. at 21a.

   /6/ Indeed, the court of appeals was generous in filling in
numerous gaps in petitioner's alleged theory of injury.  Cf. FW/PBS,
Inc. v. City of Dallas, 110 S. Ct. 596, 608 (1990) ("It is a
long-settled principle that standing cannot be 'inferred
argumentatively from averments in the pleadings,' * * * but rather
'must affirmatively appear in the record.'").

   /7/ The ICC's order also left in place substantive restrictions
imposed by federal law.  See 49 U.S.C. 11322(b) (prohibiting an
officer or director of more than one carrier from benefitting from the
issuance or sale of securities by either carrier or from participating
in the determination of certain dividends payable by either carrier);
15 U.S.C. 20 (requiring competitive bidding under ICC regulations of
transactions having an annual value in excess of $50,000 between
carriers having a common director or officer).  And, of course, rail
mergers or transactions involving acquisition of control are subject
to ICC approval.  49 U.S.C. 11343.

   /8/ Petitioner notes (Pet. 15) that in McGinness v. ICC, 662 F.2d
853 (D.C. Cir. 1981), the court entertained its challenge to an ICC
order exempting designated rail operators from obtaining prior
approval of interlocks without questioning its standing.  But the
principal issue in that case was whether the ICC had power to exempt
designated operators from labor protection requirements.  662 F.2d at
855.  The nexus between the ICC order and the claim of threatened
injury to rail labor was thus far more direct than it is in this case.

   /9/ One court of appeals recently dismissed a petition for review
filed by petitioner's legislative director on the ground that rail
employees' interests in challenging particular ICC actions are not
within the zone of interests protected by the applicable provisions of
the Interstate Commerce Act.  Simmons v. ICC, 900 F.2d 1018 (7th Cir.
1990) (class exemption pertaining to the sale of a rail line) (1990
U.S. App. LEXIS 5913);  Simmons v. ICC, 900 F.2d 1023 (7th Cir. 1990)
(class exemption pertaining to abandonment of rail line) (1990 U.S.
App. LEXIS 5986).

   /10/ Moreover, essentially the same considerations that led the
court of appeals to hold that petitioner lacks standing also undermine
its claim on the merits, as Judge Ruth B. Ginsburg concluded in her
opinion concurring in the result (Pet. App. 22a-25a).

   /11/ The Solicitor General is disqualified in this case.