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CONSOLIDATED RAIL CORP. v. UNITED STATES

No. 75-2089.

567 F.2d 64 (1977)

CONSOLIDATED RAIL CORPORATION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Grocery Manufacturers of America, Inc., et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided April 1, 1977.

Rehearing Denied April 22, 1977.

Certiorari Denied November 14, 1977.

Attorney(s) appearing for the Case

John A. Daily, Philadelphia, Pa., with whom Leo C. Franey, Washington, D. C., was on the brief, for petitioners and intervening railroads.

Lloyd John Osborn, Atty., Dept. of Justice, Washington, D. C., with whom Barry Grossman, Atty., Dept. of Justice, Washington, D. C., was on the brief, for respondent United States of America.

Frederic L. Wood, Jackson, Mich., with whom John F. Donelan and John M. Cleary, Washington, D. C., were on the brief, for intervenor.

Arthur J. Cerra, Gen. Counsel I.C.C., Charles H. White, Jr., Associate Gen. Counsel I.C.C., Washington, D. C., were on the brief for respondent I.C.C.

Leo C. Franey and John A. Daily entered appearances for the following intervenors, Illinois Central Gulf Railroad Company, Chicago Rock Island, et al. and the Florida East Coast Railway Company, Chicago and North Western Transportation Company and Consolidated Rail Corporation.

Before WRIGHT and ROBB, Circuit Judges, and GESELL, District Judge, United States District Court for the District of Columbia.

Certiorari Denied November 14, 1977. See 98 S.Ct. 479.

Opinion for the Court filed by District Judge GESELL.

Dissenting Opinion filed by Circuit Judge WRIGHT.

GESELL, District Judge:

In a special rulemaking proceeding, the Interstate Commerce Commission has determined that there exists a national shortage of epoxy-lined ("XF") boxcars and has required railroads using another line's XF cars to make incentive per diem ("IPD") payments to their...

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