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McGINNESS v. I. C. C.

No. 79-2457.

662 F.2d 853 (1981)

John W. McGINNESS, Brotherhood of Locomotive Engineers, and Railway Labor Executives' Association, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.

United States Court of Appeals, District of Columbia Circuit.

Decided August 17, 1981.

Attorney(s) appearing for the Case

Gordon P. MacDougall and John O'B. Clarke, Washington, D. C., with whom Harold A. Ross, Cleveland, Ohio, and William G. Mahoney, Washington, D. C., were on the brief, for petitioners.

Evelyn G. Kitay, Atty., I.C.C., Washington, D. C., with whom Sanford M. Litvack, Asst. Atty. Gen., Dept. of Justice, Richard A. Allen, Gen. Counsel, Henri F. Rush, Associate Gen. Counsel, I.C.C., Robert B. Nicholson and Bruce E. Fein, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondents. Frederick W. Read, III, Atty., I.C.C., Washington, D. C., entered an appearance for respondents.

Before MacKINNON, WILKEY and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge MacKINNON.

GINSBURG, Circuit Judge:

This is a petition to review a rulemaking decision of the Interstate Commerce Commission, Ex Parte No. 361, Exemption of Certain Designated Operators from Section 11343, 361 I.C.C. 379 (1979). The Commission's decision exempts companies operating exclusively as "designated operators...

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