NORFOLK AND WESTERN RAILWAY COMPANY, ET AL., PETITIONERS V.
AMERICAN TRAIN DISPATCHERS' ASSOCIATION, ET AL.

   CSX TRANSPORTATION, INC., PETITIONER V. BROTHERHOOD OF RAILWAY
CARMEN, ET AL.

   No. 89-1027, No. 89-1028

   In The Supreme Court Of The United States

   October Term, 1990

   On Writs Of Certiorari To The United States Court Of Appeals For
The District Of Columbia Circuit

   Response For The Federal Respondents To The Supplemental Memorandum
Of The Union Respondents In Support Of The Motion To Dismiss The
Petitions

   In a supplemental memorandum filed September 19, 1990, respondents
American Train Dispatchers' Association and Brotherhood of Railway
Carmen (the union respondents) renew their contention that the writs
of certiorari should be dismissed because the question presented has
become moot or has ceased to be an important federal issue.  The union
respondents' argument is based on the decision of the Interstate
Commerce Commission, issued June 21, 1990, on remand from the court of
appeals.  CSX Corp. -- Control -- Chessie System, Inc. and Seaboard
Coast Line Industries, Inc., 6 I.C.C.2d 715.  /1/

   The union respondents assert that the question before this Court
has become "virtually irrelevant" because the Commission's decision on
remand "shifted the focus of the dispute in these cases from the scope
of the Commission's authority under (49 U.S.C.) 11341(a) to the scope
of its authority under (49 U.S.C.) 11347, an issue not reached below
and not presented by petitioners to this Court." Supp. Mem. 4.  In
particular, the union respondents point to the Commission's statement
that "whatever the extent of (the Commission's) authority under * * *
(Section 11341(a)), it is also defined and limited by the labor
protective conditions adopted by the Commission pursuant to Section
11347." 6 I.C.C.2d at 720.  See also id. at 751 n.29 ("(W)hatever the
extent of the exemptive authority conferred by * * * (Section
11341(a)) with respect to CBAs (collective bargaining agreements) in
the context of mergers and consolidations, it does not go beyond the
limits of our authority under Section 11347 and the labor protective
conditions.").

   The union respondents misinterpret the significance of the
Commission's decision.  As the Commission explained, the focus on
Section 11347 was necessary to comply on remand with the mandate of
the court of appeals.  See CSX Corp., 6 I.C.C.2d at 756 n.34 ("(W)e
rely on Section 11341 as furnishing authority to replace (Railway
Labor Act) procedures, but in accordance with the opinion of the Court
of Appeals, we do not rely on Section 11341 as a basis for effecting
modifications of CBAs.").  The Commission expressly noted in its
decision on remand that it is "advancing (in this Court) the argument
that the Court of Appeals was in error on this point and that Section
11341 does furnish a further basis for modification of CBAs to the
extent permissible under Section 11347 and the labor protective
conditions." Ibid.  /2/

   One month later, on July 20, the Commission further explained its
position, and removed any possible doubt as to mootness, in a decision
denying petitioners' application for a stay of the June 21 decision.
/3/ In its July 20 decision, the Commission said:

      (P)etitioners appear to be complaining that we have
      impermissibly limited the reach of Section 11341(a).  As we have
      stated, to the extent we asserted Section 11341(a) authority at
      all we concluded that such authority must extend "at least to
      the extent" of our Section 11347 authority in the June 21
      Decision.  We also indicated in that decision that we are
      asserting more expansive Section 11341(a) authority before the
      Supreme Court.  6 I.C.C.2d at 756 n.34.  If that Court should
      rule that the Carmen court was in error, we would, of course,
      consider the appropriate scope of our authority under Section
      11341(a).  * * *

App., infra, 13a.  Moreover, the Commission said it did not disagree
with the statement that

      (i)f the Supreme Court rules, as both CSXT and the Commission
      have urged, that Section 11341(a) broadly immunizes CSXT from
      compliance with "all legal obstacles," the Commission will need
      to reconsider its decision that such broad immunity was intended
      by Congress to be restricted nonetheless by a requirement that
      it be balanced with the obligations flowing from collective
      bargaining agreements.

App., infra, 13a n.9.

   In short, the decisions of the Commission demonstrate that there is
a "presently existing dispute * * * between the parties to this case"
as to the interpretation of Section 11341.  Burke v. Barnes, 479 U.S.
361, 364 (1987).  Accordingly, the question before the Court is not
moot.

   For the foregoing reasons, it is respectfully submitted that the
motion to dismiss the petitions should be denied.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /4/

   ROBERT S. BURK

      General Counsel

   HENRI F. RUSH

      Deputy General Counsel

   JOHN J. McCARTHY, JR.

      Deputy Associate General Counsel Interstate Commerce Commission

   SEPTEMBER 1990

   /1/ The union respondents based their motion to dismiss, filed May
24, 1990, on a press release announcing the Commission's general
conclusions.  In response, the federal respondents suggested that
consideration of the motion be deferred until the Commission published
its decision.  On June 11, the Court issued an order suspending
further consideration of the motion to dismiss, and further briefing,
for 120 days.  110 S. Ct. 2615 (1990).  The federal respondents lodged
copies of the Commission's decision with the Court on June 29.

   /2/ The Commission also noted that "(i)n cases which do not come
within the (Washington Job Protection Agreement) or our WJPA-based
labor conditions, * * * it may be necessary for us to assert the full
measure of our authority under Section 11341(a) to avoid frustrating
the will of Congress." 6 I.C.C.2d at 756.

   In a separate opinion concurring in part and dissenting in part,
Commissioner Lamboley reasoned that the authority to displace Railway
Labor Act procedures implies authority to conclude an "implementing
agreement" that modifies existing CBAs.  Commissioner Lamboley
concluded that the authority to effect such modifications is to be
found, if anywhere, only in Section 11341.  See 6 I.C.C.2d at 759,
774.

   /3/ A copy of the July 20 decision is attached as an appendix to
this response.

   /4/ The Solicitor General is disqualified in this case.

   APPENDIX