the agency's stay was inadequate. Second, motions for stays normally are considered by a three-judge panel of the court of appeals, as opposed to a single-district judge under the prior law. Compare Section 2283 (3) with Rule 18, FRAP, which allows single-circuit judges to issue stays only in exceptional cases where time is short.20 In most other respects, however, the procedures under the Hobbs Act are very similar to those obtaining under the prior law. Record on Review Perhaps the most significant reform in procedures for review of Commission actions made possible by the new law is the availability of the flexible and expeditious treatment of the agency record available under the Hobbs Act. This treatment is governed generally by 28 U.S.C. §§ 2112 and 2346 and Rules 16, 17, and 30, FRAP. The agency must file the record at its cost and expense (either the original record or a certified copy thereof) within forty-days of the filing of the petition for review. The record consists of the order to be reviewed, the findings or report on which it is based, and the pleadings, evidence, and proceedings of the Commission. In lieu of filing the entire record, the Commission may file a certified list of the contents of the record. Moreover, the parties may stipulate that neither the record nor the certified list need be filed, and such stipulation shall be filed with the court of appeals. The parties may also stipulate that only designated and agreed portions of the record be filed with the court.2 21 Rule 30 of FRAP requires the petitioner for review to prepare and file an appendix to the briefs, which must include the most significant portions of the record on review. Ordinarily, the appendix must be filed along with the petitioner's brief. However, in most cases the significant portions of record will not be determined until after both sides have prepared and filed their briefs. In such case, they may elect to file a deferred appendix under the provisions of Rule 30 (c), FRAP, twenty-one days after the respondents have filed their briefs, provided such a deferred appendix is authorized by court rule or specific order. Under both procedures, both sides have the right to designate portions of the record which are to be included in the appendix, if they are unable to agree on its contents. Because of the necessity of pre 20 To be sure, 28 U.S.C. §§ 2284 (5) and 2325 required three judges to enter an interlocutory injunction. But when a single judge entered a temporary restraining order, the policy of the Commission over the years has been to concede the interlocutory injunction and proceed to final hearing on the merits. See, e.g., Cincinnatti, N.O. & T.P. Ry. Co. v. United States, 220 F. Supp. 46 (S.D. OH, 1963), 229 F. Supp. 572, 574 (S.D. OH 1964), rev'd and remanded, 379 U.S. 642 (1965). 21 The undesignated and/or unfiled portions of the record must be retained by the agency and may be transmitted to the court at a later time upon request of the court or any party, notwithstanding prior stipulations. See 28 U.S.C. § 2112 and Rules 16 (b) and 17(b), FRAP. paring the appendix, the need for preparing and filing all or any major portion of the record is largely obviated.22 The parties should be able to take advantage of these provisions to move forward expeditiously to brief the merits of their cases. Proceedings on Review When all the preliminaries have been completed, and the record on review and the arguments of the parties have been presented to the court, the court may enter "a judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency. 28 U.S.C. § 2349 (a). Such determination may be made by the entire court or a division of three judges. § 46(b) and (c). In either case, a majority of the court or the division. shall constitute a quorum for decision, 28 U.S.C. § 46(d).23 Supreme Court Review 28 U.S.C. The decisions of the courts of appeals on Commission actions are now subject to review by the Supreme Court on writ of certiorari, pursuant to 28 U.S.C. § 2350 (a), which provides: An order granting or denying an interlocutory injunction under section 2349 (b) of this title and a final judgment of the court of appeals in a proceeding to review under this chapter are subject to review by the Supreme Court on a writ of certiorari as provided by [28 U.S.C. §§ 1254 (1), 1254(1)] 1254(1). ... Application for the writ shall be made within 45 days after entry of the order and within 90 days after entry of the judgment, as the case may be. The United States, the agency, or an aggrieved party may file a petition for a writ of certiorari. No extensions of the time limits contained in the statute are expressly authorized, and the limits should be closely observed. See Stern and Gressman, Supreme Court Practice, p. 241 (4th ed. 1969). This new procedure is the final major change resulting from Pub. L. 93-584. The legislative history demonstrates that this change, which eliminated direct appeals to the Supreme Court from decisions of threejudge district courts with respect to Commission actions under 28 U.S.C. § 1253, was intended to reduce the burden on the Supreme Court. S. Rept. 93-500, supra, p. 3. However, this change may not be significant. For many years, the Court has followed the practice of ordering sum 22 Under the authority of Rule 30 (f), FRAP, the courts of appeals of the Eighth, Ninth, and Tenth Circuits by local rule have dispensed with the printed appendix in some or all cases. In those circuits, the local rules should be read carefully. Even in those courts, however, the parties should be able to reduce the size of the record filed by stipulation. 23 Compare Ayrshire Colleries Corp. v. United States, 331 U.S. 132 (1947), which held that three judges must participate in determinations made under the Urgent Deficiencies Act. See also S. Rept. 93-500, supra, p. 4. mary disposition without argument of such direct appeals. See Stern and Gressman, op. cit., pp. 193-202. Nonetheless, the procedural framework and timetable for certiorari proceedings is much different than for direct appeals and should be carefully reviewed. Conclusion The revision by Congress of procedures for judicial review of Interstate Commerce Commission actions should be an important vehicle for expeditious future handling of such actions. In large measure, only the procedural framework for such actions has changed, and little significant change should be expected in the principles governing judicial action. With the active cooperation of parties to such proceedings, an effective and efficient treatment of the procedural requirements will permit the courts and the parties to focus their energies on the many important substantive issues presented by the Commission's actions. NOTICE COMPLETE SETS AS WELL AS VOLUMES AND SINGLE ISSUES ICC PRACTITIONERS' JOURNAL ARE NOW AVAILABLE FROM WILLIAM S. HEIN & CO., INC. 1285 MAIN STREET BUFFALO, NEW YORK 14209 ANALYSIS OF RAILROAD MERGERS JAMES C. JOHNSON AND TERRY C. WHITESIDE Introduction Professor William Z. Ripley of Harvard University was a leading railroad scholar during the first third of this century. His initial prominence was based on his two-volume magnum opus-Railroads: Rates and Regulation (1912) and Railroads: Finance and Organization (1915).1 However, his place in American transportation history was assured when he was commissioned by the ICC in 1920 to prepare a plan for consolidating American railroads into a limited number of financially viable systems. Ripley's plan, which is examined below, called for massive consolidation of the existing carriers into only twentyone systems. This reorganization scheme was considered by many observers to be unworkable and entirely too radical. The irony of Professor Ripley's plan is that with an additional fifty-three years of perspective, it appears to have been a harbinger of the current rail merger situation. The purpose of this article is briefly to examine railroad mergers from a number of viewpoints. First, background information will be surveyed so that the historical regulatory environment can be noted, because it has had lasting ramifications regarding the present situation. Next, the advantages and disadvantages of consolidated railroads will be examined. A detailed case history (the Burlington Northern) will then be discussed to illustrate the complexities and multifaceted aspects of a major rail merger. This will be followed by a brief survey of rail merger activity, primarily from 1957 to the present. Finally, the authors will express their opinions regarding two contemporary issues involving the ICC and its rail merger activities. The first involves the Commission's overall merger policy. Thus, a recent Senate Committee on Commerce Report stated, "The Interstate Commerce Commission's merger policy-or rather lack of coherent policy-is faulty."2 The second issue addresses the prudence of authorizing additional mergers. Again, this is a controversial area. The above Senate report declared: Dr. Johnson, Associate Professor of Marketing and Transportation, University of Tulsa, received his B.S. from the University of Arizona, 1966 and his M.A. from the same University in 1967. In 1970 Professor Johnson received his Ph.D. from University of Minnesota. Mr. Whiteside is a graduate of Washington State University and presently employed as Senior Transportation Analyst for Williams Pipe Line Company, Tulsa, Oklahoma. 1 Both of these books were published by Longmans, Green, and Co., New York. 2 The Penn Central and Other Railroads, A Report to the Senate Committee on Commerce (Dec., 1972), p. 186. The available evidence, as borne out by the experience of the last 15 years, simply does not establish that mergers are a generally useful way of increasing efficiency, eliminating excess capacity, or improving rail service. By and large they are more likely to be harmful than beneficial.3 General Background The Transportation Act, 1920 The Transportation Act, 1920 returned the railroad system to private ownership after the World War I nationalization.* Congress was desirous of massive railroad consolidation in order to produce a limited number of financially viable carriers which would be able to produce a uniformly high level of service for the shipping public. The Commission was therefore ordered to prepare a general plan of consolidation for all continental United States railroads. There were to be a limited number of systems and the final plan required that each carrier have approximately the same earnings ability so that uniform rail rates would be feasible. In addition, the 1920 Act mandated that when grouping the railroads, "competition shall be preserved as fully as possible and whenever practicable the existing routes and channels of trade and commerce shall be maintained".5 Finally, no consolidations could take place until the ICC prepared the master merger plan, and then rail unfications could only be authorized if they were part of the Commission's overall scheme. In 1920 the ICC employed Professor Ripley to prepare a recommendation for the master railroad consolidation plan. The Commission, upon receipt of Ripley's proposal, would hold public hearings and ultimately issue its master consolidation plan. In 1921 Professor Ripley submitted his recommendation of twentyone major systems. Table 1 summarizes these systems and presents a brief description of their operating characteristics. In the conclusion of his report to the Commission he observed: The defects and shortcomings of this comprehensive scheme are manifold and in many cases self-evident. No illusion need be entertained in this regard. The outcome is avowedly almost everywhere a compromise, a choice between evils. . . . But despite these divergent interests, the desirability, nay more, the downright necessity for the furtherance of consolidation on a large scale as a remedy for the existing situation is almost universally conceded. 3 Ibid., p. 286. 4 For a discussion of why the railroads were nationalized during World War I, see: James C. Johnson, "Governmental Control of the Railroads in World War I: Was It Really Disastrous?" Traffic World (April 9, 1973), pp. 68-9. 5 As quoted in Emory R. Johnson, Government Regulation of Transportation (New York: D. Appleton-Century Co., 1938), p. 318. 6 William Z. Ripley, Consolidation of Railroads, A Report to the Interstate Commerce Commission, 63 I.C.C. 465, 646 (1921). |