     Litigating Authority o f the Interstate Commerce Commission


T he Interstate C om m erce Com m ission lacks authority to intervene in the court o f appeals in litiga­
    tion betw een a railroad and its em ployees under the R ailw ay L abor Act, or to file an am icus brief
    in the case, w ithout the approval o f the A ttorney G eneral.

T he In terstate C om m erce Com m ission also lacks authority to file a petition for certiorari, absent au­
    thorization from the Solicitor General.

                                                                                                      June 10, 1988

                     M   em orandum       O   p in io n f o r t h e   S o l ic it o r G e n e r a l

    You have asked for the opinion of this Office on several issues relating to the
litigating authority of the Interstate Commerce Commission (“ICC”). You wish
to know whether the ICC had authority to intervene in the court of appeals in
Pittsburgh & Lake Erie R.R. v. Railway Labor Executives Ass’n, No. 87-1589
(S. Ct.)* without the Department’s approval, and whether the ICC was authorized
to file an amicus brief in an earlier phase of this case, also in the court of appeals.
A related issue arises from the IC C ’s assertion of authority to file a petition for
certiorari in the Supreme Court in this case, independent of and without the ap­
proval of the Department of Justice.
    For reasons set forth more fully below, we believe that the ICC had no au­
thority to intervene in the court of appeals in this case independent of the De­
partment o f Justice, or to file an amicus brief. Under the circumstances of this
case, the only means properly available to the ICC for making its views known
in the court of appeals was through an appearance by the Attorney General. More­
over, the ICC has no authority in this case, absent authorization from the Solic­
itor General, to file a petition for a writ of certiorari, or to make an appearance
in any form, in the Supreme Court.

                                                 Background

   The facts and legal issues involved in this litigation are described in detail in
the two decisions of the Third Circuit. See Railway Labor Executives Ass’n v.
Pittsburgh & Lake Erie R.R., 831 F.2d 1231 (3d Cir. 1987); 845 F.2d 420 (3d
Cir. 1988). Briefly, it involves a dispute over whether a railroad has an obliga­
tion under the Railway Labor Act (“RLA”) to bargain with its employees over
the effect of a sale of rail assets, where the sale has been approved by the ICC

   * A fter this opinion was written, the Supreme Court granted certiorari, 488 U.S 965 (1988), and thereafter va­
cated the judgm ent, 491 U.S. 490 (1989).


                                                        110
under the Interstate Commerce Act (“ICA”). The rail unions take the position,
with which the court of appeals agreed, that the railroad must comply with the
collective bargaining requirements of the RLA in connection with the proposed
sale, even if, as a practical matter, compliance with those requirements will de­
lay and may even frustrate the sale entirely. The railroad, supported by the ICC,
argues that the ICC has plenary and exclusive jurisdiction over all aspects of the
sale, and that the provisions of other laws must give way to the extent necessary
to consummate it. The ICC’s position is that the ICA preempts the Norris-La-
Guardia Act and the collective bargaining provisions of the RLA. The facts of
the case are these. In the summer of 1987 , Pittsburgh & Lake Erie R.R. (“P &
LE”) entered into an agreement to sell its rail assets to Railco, a newly formed
non-carrier subsidiary of the Chicago West Pullman Corporation. Informed of
the proposed sale, P & LE’s unions demanded that the railroad bargain over its
effect on the railroad’s employees, pursuant to the requirements of the RLA.
   P & LE refused, and the Railway Labor Executives Association (“RLEA”) filed
suit in district court to enforce the employees’ bargaining rights under the RLA.1
Several weeks later, on September 15, 1987 , P & L E ’s employees went on strike.
On September 19, Railco filed a “notice of exemption” with the ICC, seeking an
exemption from the otherwise applicable requirement of ICC approval for the sale.
The ICC validated the effectiveness of the acquisition by denying RLEA ’s request
to refuse or stay the exemption. The sale became effective on September 26.2 In
the meantime, P & LE had asked the district court to enjoin its employees’ strike,
on grounds that it was an illegal attempt to interfere with the ICC’s exclusive ju­
risdiction over the sale. In the wake of the ICC’s refusal to stay its exemption, the
district court issued an injunction, on the grounds advanced by P & LE. The Third
Circuit summarily reversed, holding that section 4 of the Norris-LaGuardia Act
deprived the district court of jurisdiction to issue the injunction. It remanded for a
determination whether the ICA operated to relieve P & LE of its obligation to com­
ply with the RLA bargaining procedures (“P & LE-F). P & LE sought certiorari in
March of this year. On remand, the district court held that P & LE was obligated to
bargain, and the Third Circuit affirmed (“P & LE-II”). P & LE filed a second peti­
tion for certiorari on May 17, 1988.

     1 RLEA sought a declaration that the provisions o f the RLA were applicable to this transaction, a declaration
that the sale could not be consummated until all RLA dispute resolution procedures had been exhausted, and an in­
junction prohibiting P & LE from completing the transaction until that time. See 831 F.2d at 1233.
    2 The Railroad Revitalization and Regulatory Reform Act o f 1976, Pub L. No. 94-210, 90 Stat. 31, and the
Staggers Rail Act o f 1980, Pub. L. No. 96-448, 94 Stat 1895, reduced the amount o f federal involvement in rail
mergers and acquisitions, in an effort to implement a congressional policy favoring expedited approval o f sales o f
railroads, particularly those that are failing. See H.R. Conf. Rep No. 1430, 96th Cong., 2d Sess (1980). It broad­
ened the power o f the ICC to approve various transactions, including acquisitions, involving rail carriers. When an
acquisition involves two existing rail carriers, the ICC must impose certain labor protective conditions. 49 U.S.C.
§ 11347 However, where a rail carrier’s assets are being acquired by a non-carrier, the imposition of labor pro­
tective provisions is discretionary See 49 U.S C. § 10901 In 1985, the ICC exempted from regulation the entire
class of acquisitions o f railroad lines by non-carriers. See Ex Parte 392 (Sub. No 1), Class Exemption fo r the A c­
quisition and Operation o f Rail Lines Under 49 U.S.C. 10901, 1 I.C.C.2d 810(1985), review denied mem. sub nom
Illinois Commerce C om m 'n v ICC, 817 F.2d 145 (D.C. Cir. 1987). Such acquisitions are effective seven days af­
ter the seller files a “notice o f exemption,” unless the ICC acts to refuse o r stay the transaction No labor protective
conditions are generally imposed on a sale in such cases, see 11 C.C.2d at 815, and none were imposed in this case.


                                                         in
   The ICC entered an appearance in the court of appeals in both P & LE-I and
P & LE-Il. In P & LE-I the ICC filed an amicus brief supporting the position of
P & LE, after having been denied intervenor status. The ICC sought and was
granted intervenor status in P & LE-II. It is our understanding that in neither in­
stance did the ICC ask the Department of Justice to take any action in its behalf.
As matters now stand, the ICC has asked that the Department of Justice join it in
seeking certiorari in P & LE-II, but has also asserted a right to petition the Supreme
Court independently if the Department declines to do so. See Memorandum for
the Solicitor General, from Robert S. Burk, General Counsel, ICC (May 23,
1988).

I. The ICC’s Authority to Intervene or Appear as Amicus Curiae in the Court
o f Appeals

    We start with the premise, as to which there appears to be no disagreement in
this situation, that the ICC could not appear in district court or the court of ap­
peals in its own name, either as intervenor or amicus curiae, absent statutory au­
thorization. This is because the Attorney General has plenary authority and re­
sponsibility for all litigation in which the United States or one of its agencies is
a party or is interested, “[e]xcept as otherwise authorized by law.” See 28 U.S.C.
§§ 516, 519. See generally The Attorney General’s Role as Chief Litigator for
the United States, 6 Op. O.L.C. 47 (1982). In addition, it has been the consistent
position of this Department that, where Congress has not given an agency au­
thority to litigate through its own attorneys, the Attorney General may not trans­
fer or delegate to it his own litigating power. While attorneys employed by agen­
cies that have no independent authority to conduct litigation may assist
Department of Justice attorneys, their role is restricted to so-called “agency coun­
sel” functions. See Representation of the United States Sentencing Commission
in Litigation, 12 Op. O.L.C. 18, 20 (1988). In a few words, sections 516 and 519
require that, absent statutory direction to the contrary, attorneys of the Depart­
ment of Justice under the direction of the Attorney General represent an agency
o f the United States in court.
    Amicus participation in a case requires the same clear and specific statutory
exception to sections 516 and 519 as does appearance as a party in litigation.3

     3    See M emorandum for the Attorney General, from Theodore B Olson, Assistant Attorney General, Office of
Legal Counsel, Re: A uthority o f the Equal Employment Opportunity Commission to Participate as Amicus Curiae
in W illiams v. City o f N ew Orleans (Mar. 2 4 , 1983); Memorandum for J. Paul McGrath, Assistant Attorney Gen­
eral, Civil Division, from Theodore B. O lson, Assistant Attorney General, Office of Legal Counsel, Re Amicus
Curiae Role o f the Sm all Business Administration s C hief Counsel fo r Advocacy under the Regulatory Flexibility
A c t (M ay 17, 1983). In the highly limited an d distinguishable circumstance of litigation challenging its sentencing
guidelines, w e did not move to strike the separate views o f the United States Sentencing Commission, with respect
to fundamental questions pertaining to its very existence and authority within the constitutional structure. Most im­
portantly, in the Sentencing Commission litigation the Department never relinquished in any manner the represen­
tation o f the interests o f the United States, including those o f the Sentencing Commission as a party defendant. See
 12 Op. O.L.C. at 24—25. Again, no similar compelling considerations relating to the IC C ’s very existence are pre­
sented by the instant litigation, and the IC C ’s independent participation in the lower courts obviously thwarted the
D epartm ent’s control over representation affecting the interests o f the United States.


                                                       112
    We do not understand the ICC to dispute these basic principles of representa­
tion. Rather, the ICC contends that both its amicus appearance in P & LE-I and
its intervention in P & LE-II were authorized by statute. Specifically, the ICC re­
lies upon 28 U.S.C. § 2323 for its authority both to intervene and to appear as
amicus in this litigation.4 Section 2323 provides, inter alia, that the Attorney Gen­
eral shall represent the government in “actions specified in section 2321 of this
title” and in certain other enforcement aetions. It also provides that the ICC it­
self, and any party in interest to a proceeding before the ICC in which an order
is made, may appear as parties “in any action involving the validity” of that or­
der. Because section 2323 is central to the ICC’s argument, we reprint it in full
in the margin.5 The ICC takes the position that the authority given it under the
second paragraph of section 2323 authorizes it to intervene or appear as amicus
not only in enforcement actions originated by the Attorney General under the first
paragraph of this section, but also in any other action in which the “validity” of
a Commission order is arguably drawn into question, whether or not the United
States is a party.6
   We disagree. The language of section 2323 on which the ICC relies admits of
the proffered construction only if read entirely in isolation. When viewed in the
context of the section as a whole, and the scheme of two preceding statutory pro­
visions, it is clear that the intervention authority given the ICC in the second para­
graph of section 2323 is confined to the enforcement actions brought by the At­
torney General under the first paragraph of that section.

     4 See Mr. Burk's May 23 memorandum at 4 In an earlier memorandum dealing with essentially this same issue
 in another case, Mr Burk appears also to rely on the provision o f the ICA lhat authorizes the ICC to employ attor­
neys “to represent the Commission in any case in court.” 49 U.S C. § 10301(f)(1)- See Memorandum for the So­
 licitor General, from Robert S. Burk, General Counsel, ICC, at 6-11 (Apr. 13, 1988), discussing the ICC’sauthor-
 ity to file an amicus b n e f in Deford v Soo Line R R., 867 F.2d 1080 (8th C ir), cert, denied, 492 U.S. 927 (1989).
Such general provisions have never been understood in and o f themselves to constitute grants of litigating author­
 ity to an agency Rather, they simply provide for the employment o f attorney personnel to carry out an agency’s
otherwise authorized litigating functions
     5 Section 2323 provides in full as follows:
             The Attorney General shall represent the Government in the actions specified in section 2321 of
         this title and in enforcement actions and actions to collect civil penalties under subtitle IV o f title 49.
             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 mo­
         tion and as o f right, and be represented by their counsel, in any action involving the validity of such
         order o r requirement or any part thereof, and the interest o f such party.
             Communities, associations, corporations, firms, and individuals interested in the controversy or
         question before the Commission, or in any action commenced under the aforesaid sections may inter­
         vene in said action at any time after commencement thereof
             The Attorney General shall not dispose o f or discontinue said action or proceeding over the ob­
        jection o f such party or intervenor, who may prosecute, defend, or continue said action or proceeding
         unaffected by the action or nonaction of the Attorney General therein
     6 The ICC argues that the RLEA’s action constitutes a “collateral attack[]’f on its exemption order in this case,
suggesting that it would limit its assertion o f authority to intervene under section 2323 to cases whose result po­
tentially would render an ICC order invalid or ineffective. See Mr Burk’s May 23 memorandum at 4. See also Mr.
B urk’s April 13, 1988 memorandum on the D eford case at 6-11. But no such limiting principle is embodied in the
broad language (“any action involving the validity”) o f the second paragraph o f section 2323. Moreover, we note
the court of appeals’ rejection of the IC C ’s argument that the RLEA’s suit constituted “a forbidden collateral at­
tack on the ICC’s order approving the sale transaction.” 845 F.2d at 437. See also id. at 438 (“We do not view a ju ­
dicially-enforced delay as an attack on the ICC’s order.”)


                                                        113
   Looking first at section 2323 alone, it seems clear that its several paragraphs
were intended to be read together, and understood to cover the same universe of
court proceedings. Indeed, its separate paragraphs are not even demarcated as
separate subsections. This textually evident construction of section 2323 is sup­
ported by sections 2321 and 2322, the provisions which, along with section 2323,
constitute chapter 157 of title 28, entitled “Interstate Commerce Commission Or­
ders; Enforcement and Review.” Section 2321 describes the procedures for ju­
dicial review of ICC orders: actions by private parties to enjoin or suspend an or­
der are to be brought in the court of appeals, in accordance with chapter 158 (the
Hobbs Act); actions to enforce ICC orders other than for the payment of money
or the collection of fines, are to be brought in district court “as provided in this
chapter.” 28 U.S.C. § 2321(b). Section 2322 provides that all actions specified
in section 2321 shall be brought “by or against the United States.” Reading all
three provisions of chapter 157 together confirms that the second paragraph of
section 2323 was intended to give the ICC authority only in the actions that are
described in and governed by its first paragraph.
   The legislative history of section 2323 bears out this interpretation. Originally
enacted in 1910, see 36 Stat. 539,543, its very purpose was to give the Attorney
General control over litigation under the ICA that had previously been conducted
wholly by the ICC through its own attorneys. See H.R. Rep. No. 9 2 3 ,61st Cong.,
2d Sess. 3 (1910). At the same time, the ICA was amended to delete the author­
ity for the ICC to apply “in its own name” for enforcement of its orders. The
IC C ’s entitlement to intervene in an action brought by the Attorney General was
relegated to a proviso following the description of the Attorney General’s pri­
mary role. The caselaw interpreting the IC C ’s power to litigate under section
2323 confirms that it is activated in the enforcement context only after the At­
torney General himself has initiated the enforcement action. See ICC v. South­
ern Ry. Co., 543 F.2d 534 (5th Cir. 1976), a jf d , 551 F.2d 95 (5th Cir. 1977) (en
banc).7
   In summary, we believe that the ICC’s power under the second paragraph of
section 2323 to intervene or appear as amicus curiae in litigation is limited to
those enforcement actions brought by the Attorney General under its first para­
graph. This means that the ICC is without authority to become directly involved
in litigation between two private parties over the effect of one of its orders, even


    7   The ICC suggests its doubt as to the continuing validity o f the Fifth C ircuit’s decision in the Southern Rail­
way case, citing the Seventh Circuit’s decision in Carothers v. Western Transp. Co , 563 F.2d 311, 313 (7th Cir.
1977). W hatever the merits o f that doubt, it is inapposite to this case. Carothers dealt with the ability o f a private
party to initiate an action against another private party to enforce an ICC order under 49 U.S.C. § L6(12)(1976),
and the court’s statement respecting the IC C ’s authority w as thus dictum. (The authonty o f a private party to bring
an enforcement action is now separately codified at 49 U.S.C. § 11705.) The Carothers court simply held that the
United States was not an indispensable party to a private action to enforce an ICC order under section 16(12), and
did not question the Attorney General’s authonty to initiate a suit brought by the government under section 2323.
The ICC apparently recognizes that its title 49 authority, now codified in section 11702, has no applicability in this
situation, since that section plainly deals only with actions to enjoin statutory violations or to enforce Commission
orders. There is thus no occasion for revisiting the question decided in the Southern Railway case against the ICC,
w hether the IC C ’s title 49 authonty repeals sections 2321-2323 by implication. See 543 F.2d at 539.


                                                        114
if the result of this litigation could effectively reverse or render invalid the or­
der.8 This Department cannot remedy an agency’s lack of litigating authority by
delegating its own power to intervene in an action in the name of the United
States. Thus the ICC would have had no authority to intervene or file an amicus
brief in the court of appeals in this litigation even if this Department had agreed
to permit it to do so.9
                                     .iO!'
II. ICC Authority to Appear in the Supreme Court

   In his memorandum of May 23, 1988, the General Counsel of the ICC takes
the position that his agency has authority in this case to seek a writ of certiorari
from the Supreme Court without this Department’s authorization. Again, we dis­
agree.
   Section 518(a) of title 28 gives the Attorney General exclusive power to rep­
resent the interests of the United States and its agencies in the Supreme Court,
whether or not Congress has given an agency authority to litigate in the lower
courts. Section 518(a) provides that the Attorney General and the Solicitor Gen­
eral shall conduct and argue all suits and appeals in the Supreme Court, “[e]xcept
when the Attorney General in a particular case directs otherwise.”
   In allowing the Attorney General to “direct[] otherwise,” section 518 does not
appear to compel the same exclusivity of representation in the Supreme Court
that sections 516 and 519 require for lower court litigation. And on occasion the
Attorney General has elected, in the exercise of his discretionary authority under
section 5 18(a), to permit an agency to file a brief in the Supreme Court in its own
name, rather than having the Solicitor General represent it. But the existence of
the discretionary authority to allow exceptions simply underscores the firmness
of the otherwise applicable rule of exclusivity.10
   In asserting the ICC’s right to appear in the Supreme Court in this case with­
out the authorization of the Attorney General, the ICC General Counsel cites as
authority 28 U.S.C. § 2350. But this provision on its face is applicable only to




    8 The ICC may litigate entirely independent of any action by this Department only in proceedings initiated by
a pnvate party to enjoin or suspend its rules or orders See 28 U S C § 2348. In these Hobbs Act cases, the ICC
(like the several other regulatory agencies subject to its provisions) is entitled to participate in its ow n name, w ith­
out regard to whether the Department decides to participate in the matter. The Attorney General o f course remains
responsible for and controls the interests o f the United States in Hobbs Act cases Id
    9 In a memorandum discussing the IC C ’s ability to intervene in the Deford case, see supra note 4, the Civil Di­
vision reached the same conclusion respecting the scope o f the ICC’s litigating authority under 28 U.S C § 2323.
See Memorandum for the Solicitor General, from Richard K Willard, Assistant Attorney General, Civil Division
(Feb. 18, 1988). Our only apparent difference with the Civil Division is that we do not believe that the ICC’s lack
of independent statutory litigation authority in the lower federal courts can be supplied simply by this Department
giving its consent. Rather, its attorneys may appear in court or otherwise carry out duties reserved to “officers of
the Department o f Justice" under section 516 only if they are given special appointments in the Department of Jus­
tice. See 12 Op. O.L.C at 20
    10 Just this Term the Supreme Court reaffirmed the power o f the Attorney General and the Solicitor General
over all Supreme Court litigation. See United States v Providence Journal Co., 485 U.S. 693 (1988)


                                                          115
proceedings under the Hobbs A ct for the review of agency orders.11 Assuming
arguendo that section 2350 does give the ICC, and the other agencies whose or­
ders are subject to review under the Hobbs Act, independent authority to file a
petition for a writ o f certiorari in the Supreme Court in Hobbs Act cases,12 it
plainly does not constitute a general authorization for these agencies to appear in
the Supreme Court in any case that they believe affects their interests. Thus, en­
tirely without regard to the merits of the IC C ’s argument that its intervention in
this case was authorized under 28 U.S.c!*§ 2323, section 2350 would certainly
not overcome the rule of exclusivity imposed by section 518(a) in a non-Hobbs
Act case.

                                               CONCLUSION

   In summary, we conclude that the ICC was not authorized to file an amicus
brief in P & LE-I or to intervene in P & LE-II. Nor is the ICC authorized to seek
a writ of certiorari or otherwise appear in the Supreme Court in either case, with­
out the permission of the Attorney General.

                                                                          D   ouglas     W. K    m ie c

                                                               D eputy Assistant Attorney General
                                                                    Office o f Legal Counsel




    11 Section 2350 applies only to orders granting or denying an injunction under section 2349(b), or a final judg­
ment o f the court o f appeals "under this chapter.” The “chapter” in question is chapter 158 of title 28,28 U.S.C §§
2341-2351.
    12 It is not entirely clear to us that the general language o f section 2350 was intended to have the effect o f re­
pealing section 5 18(a), even in the Hobbs A ct cases to which it applies. W e note in this regard that the Fifth Cir­
cuit in Southern Railway rejected an argument that similar disjunctive w ording in 49 U.S.C. § 16(12) (1976) had
the effect o f repealing the otherwise applicable requirement o f 28 U S C. § 2323 that the Attorney General rather
than the ICC initiate an action to enforce an ICC order. See 543 F.2d at 538-39.


                                                         116
