SHIPPERS COMMITTEE, OT-5 v. I.C.C.

Nos. 90-1040, 91-1060.

968 F.2d 75 (1992)

SHIPPERS COMMITTEE, OT-5, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Thirteen Railroads and the Association of American Railroads, Burlington Northern Railroad Company, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided June 30, 1992.


Attorney(s) appearing for the Case

Andrew P. Goldstein, Washington, D.C., with whom Rodman Kober, New York City, was on the brief, for petitioner.

Louis Mackall, V, Attorney, I.C.C., with whom Robert S. Burk, General Counsel, and Craig M. Keats, Associate General Counsel; and James F. Rill, Asst. Atty. Gen., John J. Powers, III, and John P. Fonte, Attorneys, Dept. of Justice, Washington, D.C., were on the brief, for respondents.

Ronald S. Flagg, Washington, D.C., with whom Robert B. Batchelder, Omaha, Neb., John H. Doeringer, Olympia Fields, Ill., Paul R. Hitchcock, Baltimore, Md., Robert T. Opal, Chicago, Ill., John J. Paylor, Philadelphia, Pa., Louis P. Warchot, San Francisco, Cal., Dennis W. Wilson, Schaumburg, Ill., F. Blair Wimbush, Norfolk, Va., Robert W. Blanchette, and John B. Norton, Washington, D.C., for Thirteen Railroads and Ass'n of American Railroads; and Michael E. Roper, Fort Worth, Tex. and Samuel M. Sipe, Jr., Washington, D.C., for Burlington Northern R. Co. were on the joint brief, for intervenors. J. Thomas Tidd, Kevin Hawley, Washington, D.C., Constance L. Abrams, Philadelphia, Pa., Edmund W. Burke, Douglas J. Babb, and Steven A. Brigance, Fort Worth, Tex., also entered appearances for intervenors.

Before MIKVA, Chief Judge; D.H. GINSBURG, and SENTELLE, Circuit Judges.


Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Petitioner Shippers Committee OT-5 ("SCOT-5"), an organization of private railroad car owners, petitions for review of two decisions by the Interstate Commerce Commission ("ICC" or "the Commission") overturning an Administrative Law Judge's ("ALJ") decision ordering railroads to provide unrestricted rail access to private covered hopper cars, regardless of the availability of railroad...

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