REGIONAL RAIL REORGANIZATION ACT CASES(1974)

No. 74-165

Argued: October 23, 1974Decided: December 16, 1974

[ Footnote * ] No. 74-165, Blanchette et al., Trustees of Property of Penn Central Transportation Co. v. Connecticut General Insurance Corp. et al.; No. 74-166, Smith, Trustee of Property of New York, New Haven & Hartford Railroad Co. v. United States et al.; No. 74-167, United States Railway Assn. v. Connecticut General Insurance Corp. et al.; and No. 74-168, United States et al. v. Connecticut General Insurance Corp. et al., on appeal from the United States District Court for the Eastern District of Pennsylvania.

As a comprehensive solution to a national rail crisis precipitated by the entry into reorganization proceedings under 77 of the Bankruptcy Act of eight major railroads in the northeast and midwest region of the country, Congress supplemented 77 with the Regional Rail Reorganization Act of 1973 (Rail Act). Each railroad under a 77 reorganization must proceed under the Rail Act unless its reorganization court within specified times finds (a) that the railroad is reorganizable on an income basis within a reasonable time under 77 and that the public interest would be better served by a 77 rather than a Rail Act reorganization or (b) that the Rail Act does not provide a process that is fair and equitable to the estate of the railroad in reorganization (hereafter railroad). 207 (b) of the Rail Act. Appeals from 207 (b) orders are provided to a Special Court, whose decision is final. The Rail Act establishes a Government corporation, the United States Railway Association (USRA), which is directed to formulate a “Final System Plan” (Plan) by July 26, 1975, for restructuring the railroads into a “financially self-sustaining rail service system.” The Plan must provide for transfer of designated railroad properties to the Consolidated Rail Corp. (Conrail), a private state-incorporated corporation, in return for Conrail securities, plus up to $500 million of federally guaranteed USRA obligations and the other benefits accruing to the railroad from the transfer. The Plan, which becomes effective if neither House of Congress disapproves it within 60 days, must be transmitted to the Special Court, which has exclusive jurisdiction of all proceedings concerning the Plan. 209. Within 10 days after deposit [419 U.S. 102, 103] with it of Conrail securities and USRA obligations, the Special Court must order the railroad trustee to convey forthwith to Conrail the railroad’s properties designated in the Plan. 303 (b). The Special Court then determines under 303 (c), with an appeal extending to this Court, whether the conveyance is fair and equitable to the railroad’s estate under 77 standards, or whether the transfer is more fair and equitable than a constitutional minimum requires (in which case necessary adjustments must be made). If the Special Court finds the conveyance not fair and equitable, the court must reallocate, or order issuance of additional Conrail securities and USRA obligations, enter a judgment against Conrail, or combine such remedies. Railroads may discontinue service and abandon properties not designated for transfer under the Plan, but until the Plan becomes effective may only discontinue service or abandon any line with USRA consent and absent reasonable state opposition. 304 (f). Parties with interest in Penn Central Transportation Co. (Penn Central) brought suits attacking the constitutionality of the Rail Act, contending that the Act violates the Fifth Amendment by taking Penn Central property without just compensation, on the grounds (1) that the Conrail securities and USRA obligations and other benefits would not be the constitutionally required equivalent of the rail properties whose transfer is compelled by 303 (b) (the “conveyance taking” issue), and (2) that 304 (f) compels continuation of rail operations pending the Plan’s implementation even if erosion, beyond constitutional limits, of Penn Central’s estate occurs during the interim period (the “erosion taking” issue). While rejecting the “conveyance taking” issue as premature in view of a number of decisional steps required before the final conveyance, the District Court held that the “erosion taking” issue was not premature, and rejected the contention of the United States, USRA, and the Penn Central Trustees that if the constitutional limit of permissible uncompensated erosion should be passed, the plaintiffs would have an adequate remedy at law under the Tucker Act, which gives the Court of Claims jurisdiction to render judgment “upon any claim against the United States founded either upon the Constitution, or any Act of Congress . . .,” the District Court finding that the Rail Act precluded a Tucker Act remedy. The court therefore declared 304 (f) invalid as violating the Fifth Amendment “to the extent that it would require continued operation of rail services at a loss in violation of the constitutional rights of the owners and creditors of a railroad,” and the court declared 303 invalid to the extent [419 U.S. 102, 104] it failed to compensate for interim erosion pending final implementation of the Plan. In addition to other injunctive relief, the District Court enjoined USRA from certifying the Plan to the Special Court under 209 (c). The court further determined that the provision of 207 (b) requiring dismissal of certain reorganization proceedings is constitutionally invalid as a geographically nonuniform law on the subject of bankruptcies. Held:

1. The issue of the availability of a Tucker Act remedy if the Rail Act effects an “erosion taking” is ripe for adjudication in view of the distinct possibility that compelled continued rail operations by Penn Central, which in the past several years has sustained great losses and is not “reorganizable on an income basis within a reasonable time under [ 77],” would injure plaintiffs below without any assurance before the Plan is implemented of their being compensated. Pp. 122-125.

2. The Tucker Act remedy is not barred by the Rail Act, but is available to provide just compensation for any “erosion taking” effected by the Rail Act. Pp. 125-136.

(a) The correct issue is whether Congress intended to prevent recourse to the Tucker Act and not as the District Court held whether the Rail Act affirmatively manifests a congressional intent to permit such recourse. Pp. 126-127.

(b) Rail Act provisions relied on as evincing a congressional determination that no federal funds beyond those expressly committed by the Act were to be paid for the rail properties, equally support the inference that Congress felt that the Rail Act provided at least the minimum compensation and gave no consideration to withdrawal of the Tucker Act remedy. Pp. 127-129.

(c) Section 601 of the Rail Act, which specifically deals with other statutes inconsistent with the Rail Act, does not mention the Tucker Act. P. 129.

(d) There is no legislative history supporting the argument that the Rail Act should be construed to withdraw the Tucker Act remedy. Pp. 129-133.

(e) Applicable canons of construction fortify the conclusion that the Rail Act does not withdraw the Tucker Act remedy. Pp. 133-136.

3. Certain basic “conveyance taking” issues are now ripe for adjudication. Pp. 136-148.

[419 U.S. 102, 105]

and equitable to the estate, some of the “conveyance taking” issues must now be decided. Pp. 138-140.

(b) Implementation of the Rail Act will now lead inexorably to the final conveyance though the exact date cannot now be determined, and the Special Court must order the conveyance of rail properties included in the Plan; since the conveyance is inevitable it is not relevant to the justifiable-controversy issue that there will be a delay before the transfer occurs. Pp. 140-143.

(c) Several factors militate against the Court’s deferring resolution of the constitutional issues here until a time closer to the occurrence of the disputed event and the Court will be in no better position later than it is now to determine the validity of basic final-conveyance issues. However, resolution of other issues, such as those involving valuation, should be postponed. Pp. 143-148.

4. For the same reasons as obtained with respect to the “erosion taking” issue, a suit in the Court of Claims is available under the Tucker Act for a cash award to cover any shortfall between the consideration that the railroads receive for their rail properties finally conveyed under the Rail Act and the constitutional minimum. P. 148.

5. The Tucker Act guarantees an adequate remedy at law for any taking that might occur as a result of the final-conveyance provisions of the Rail Act. Pp. 148-156.

(a) Plaintiffs’ argument that the Tucker Act remedy is inadequate because the “conveyance taking” is an exercise of the eminent domain power and requires full cash payment for the rail properties is without merit. The Rail Act coupled with the Tucker Act is valid as a reorganization statute and does not constitute an eminent domain statute by virtue of its provisions for federal representation on Conrail’s board of directors (which does not constitute Conrail a federal instrumentality) and the provisions for conveyance and continuation of services pending the Plan’s formulation; or because of any defects in the Act’s provisions for judicial review. Pp. 152-155.

[419 U.S. 102, 106]

(c) The Tucker Act also assures that the railroad estates and their creditors will eventually be made whole for the assets conveyed, and thus the Rail Act does not deprive plaintiffs of procedural due process. P. 156.

6. The Rail Act does not contravene the uniformity requirement of the Bankruptcy Clause. Pp. 156-161.

(a) This Court’s holding that the Tucker Act remedy is available for any uncompensated taking under the Rail Act obviates the possibility that the Penn Central reorganization court will ever confront the provision for dismissal of a 77 proceeding under 207 (b) of the Rail Act, which the District Court held violative of the bankruptcy uniformity requirement. Pp. 156-158.

(b) Plaintiffs’ argument that constitutional bankruptcy uniformity is violated because the Rail Act is restricted to a single statutorily defined region lacks merit since the uniformity requirement does not preclude Congress from fashioning legislation to resolve geographically isolated problems, and here Congress acted consistently with that requirement when it dealt with the national rail crisis centering in the problems of rail carriers in the region defined by the Rail Act and applied the Rail Act to every railroad in reorganization throughout the United States. Pp. 158-161.

383 F. Supp. 510, reversed.

BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 161. STEWART, J., filed a dissenting statement, post, p. 161.

Solicitor General Bork argued the cause for the United States et al. With him on the briefs were Assistant Attorney General Hills, Keith A. Jones, and Jerome E. Sharfman. Lloyd N. Cutler argued the cause for the United States Railway Assn. With him on the briefs were William R. Perlik, William T. Lake, and Jordan Jay Hillman. Charles A. Horsky argued the cause for Blanchette et al., Trustees of the property of Penn Central Transportation Co. With him on the briefs were Brice M. Clagett and Paul R. Duke. Louis A. Craco argued the cause for Connecticut General Insurance Corp. et al. With him on the briefs were Frederic L. [419 U.S. 102, 107] Ballard, Walter H. Brown, Jr., and Thomas L. Bryan. David Berger argued the cause and filed briefs for Penn Central Co. Joseph Auerbach argued the cause for Smith, Trustee of the property of New York, New Haven and Hartford Railroad Co. With him on the briefs were James Wm. Moore, Morris Raker, and Charles W. Morse, Jr. Brockman Adams argued the cause and filed a brief for certain United States Representatives as amici curiae urging reversal.Fn

Fn [419 U.S. 102, 107] Briefs of amici curiae were filed by Israel Packel, Attorney General, and Gordon P. MacDougall, Special Assistant Attorney General, for the Commonwealth of Pennsylvania; by David F. Maxwell for Trustees of Reading Co.; and by John F. Donelan for the National Industrial Traffic League.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

These direct appeals and the cross-appeal are from a judgment of a three-judge District Court for the Eastern District of Pennsylvania that declared the Regional Rail Reorganization Act of 1973 (Rail Act), 87 Stat. 985, 45 U.S.C. 701 et seq. (1970 ed., Supp. III), unconstitutional in part and enjoined its enforcement. 1 383 F. [419 U.S. 102, 108] Supp. 510 (1974). We noted probable jurisdiction, post, p. 801. We reverse.

I

Introduction

A rail transportation crisis seriously threatening the national welfare was precipitated when eight major railroads in the northeast and midwest region of the country 2 entered reorganization proceedings under 77 of the Bankruptcy Act, 11 U.S.C. 205. 3 After interim measures [419 U.S. 102, 109] proved to be insufficient, 4 Congress concluded that solution of the crisis required reorganization of the railroads, stripped of excess facilities, into a single, viable system operated by a private, for-profit corporation. Since such a system cannot be created under 77 rail reorganization law, and since significant federal financing would be necessary to make such a plan workable, Congress supplemented 77 with the Rail Act, which became effective on January 2, 1974. The salient features of the Rail Act are:

1. Reorganization of each railroad in 77 reorganization must proceed pursuant to the Rail Act unless the district court having jurisdiction over its reorganization (a) finds, within 120 days after January 2, 1974, “that the railroad is reorganizable on an income basis within a reasonable time under section 77. and that the public interest would be better served by such a reorganization [419 U.S. 102, 110] than by a reorganization under this chapter,” 5 or (b) within 180 days after January 2, 1974. “finds that this chapter does not provide a process which would be fair and equitable to the estate of the railroad in reorganization . . . .” 207 (b), 45 U.S.C. 717 (b) (1970 ed., Supp. III). 6 Appeals from 207 (b) orders may be taken within 10 days of entry to a Special Court constituted under 209 (b), 45 U.S.C. 719 (b) (1970 ed., Supp. III), and must be decided by the Special Court within 80 days after the appeal is taken. Section 207 (b) expressly provides that “[t]here shall be no review of the decision of the special court.” 7 [419 U.S. 102, 111]

2. Appellant United States Railway Association (USRA) is established as a new Government corporation. 201 (a), 45 U.S.C. 711 (a) (1970 ed., Supp. III). USRA must prepare a “Final System Plan” for restructuring the railroads in reorganization into a “financially self-sustaining rail service system.” 206 (a) (1), 45 U.S.C. 716 (a) (1) (1970 ed., Supp. III). See 201, 202, 204-206, 45 U.S.C. 711, 712, 714-716 (1970 ed., Supp. III). The Final System Plan must provide for transfer of designated rail properties by the railroads in reorganization to a private state-incorporated corporation, Consolidated Rail Corporation (Conrail), 301 (a), 45 U.S.C. 741 (a) (1970 ed., Supp. III), in return for securities of Conrail, plus up to $500 million of USRA obligations guaranteed by the United States, and “the other benefits accruing to such railroad by reason of such transfer.” 206 (d) (1), 45 U.S.C. 716 (d) (1) (1970 ed., Supp. III); see also 210, 45 U.S.C. 720 (1970 ed., Supp. III). 8 [419 U.S. 102, 112]

3. USRA must submit a proposed Final System Plan to Congress within 570 days after January 2, 1974, 207 (c), 207 (d), 208 (a), 45 U.S.C. 717 (c), 717 (d), 718 [419 U.S. 102, 113] (a) (1970 ed., Supp. III), that is, by July 26, 1975. 9 The Plan becomes “effective” if neither House of Congress disapproves it within 60 continuous session days [419 U.S. 102, 114] after submission. 102 (4), 208 (a), 45 U.S.C. 702 (4), 718 (a) (1970 ed., Supp. III). 10 USRA is required to transmit the Plan within 90 days after its effective [419 U.S. 102, 115] date to the Special Court which, under 209 (b), is given exclusive jurisdiction of all “proceedings with respect to the final system plan.” 45 U.S.C. 719 (b) (1970 ed., Supp. III). The Special Court “within 10 days after deposit . . . of” Conrail securities and USRA obligations “shall . . . order the trustee or trustees of each railroad in reorganization . . . to convey forthwith” to Conrail “all right, title, and interest in the rail properties of such railroad in reorganization . . .” designated in the Final System Plan. 303 (b), 45 U.S.C. 743 (b) (1970 ed., Supp. III).

4. The Special Court next determines whether the conveyances of the rail properties to Conrail “(A) . . . are in the public interest and are fair and equitable to the estate of each railroad in reorganization in accordance with the standard of fairness and equity applicable to the approval of a plan of reorganization . . . under section 77. . . . [or] (B) whether the transfers or conveyances are more fair and equitable than is required as a constitutional minimum.” 303 (c), 45 U.S.C. 743 (c) [419 U.S. 102, 116] (1970 ed., Supp. III). If the Special Court finds that the transfer is not fair and equitable, the Special Court must reallocate, or order issuance of additional, Conrail securities and USRA obligations (subject to the overall $500 million limitation on USRA obligations for this purpose), or enter a judgment against Conrail, or decree a combination of these remedies. 303 (c) (2). The Special Court is not authorized to enter a judgment against the United States. Section 303 provides also that if the Special Court decides that the consideration exchanged for the rail properties is “more fair and equitable than is required as a constitutional minimum,” 303 (c) (1) (B), it shall make necessary adjustments so that the “constitutional minimum” is not exceeded. 303 (c) (3). Appeal from 303 (c) determinations is to this Court. 303 (d). 11

5. Although railroads in reorganization subject to the Act are free to abandon service and dispose as they wish of any rail properties not designated for transfer under the Final System Plan, 304 (a)-(c), 45 U.S.C. 744 [419 U.S. 102, 117] (a)-(c) (1970 ed., Supp. III), until that Plan becomes effective none “may discontinue service or abandon any line of railroad . . . unless . . . authorized to do so by [USRA] and unless no affected State or local or regional transportation authority reasonably opposes such action . . . .” 304 (f).

II

Proceedings in the District Court

Constitutional questions concerning the Act are raised in this litigation by parties with interests in the Penn Central Transportation Co. (Penn Central), the largest of the eight railroads in reorganization. 12 The principal [419 U.S. 102, 118] contention of the plaintiffs in the District Court was that the Rail Act in two respects effects a taking of rail properties of Penn Central without payment of just compensation, in violation of the Fifth Amendment. They contended, first, that the Conrail securities and USRA obligations and other benefits to be received would not be the constitutionally required equivalent of the rail properties compelled by 303 (b) to be transferred. This is the “conveyance taking” issue. This claim was rejected by the District Court as premature. 383 F. Supp., at 517-518. They contended, second, that a taking of their property without just compensation will result from the severe inhibitions imposed upon discontinuance of service and abandonment of lines. In particular, they claimed that 304 (f) compels continuation of rail operations pending implementation of the Final System Plan even if erosion of the Penn Central estate beyond constitutional limits occurs during this period. This is the “erosion taking” issue. The District Court agreed that 304 (f) required continued operations to this extent, and viewed the huge operating losses already incurred by Penn Central as making this contention ripe for determination, saying:

[419 U.S. 102, 119]

taking by continued loss operations is ripe for adjudication.” 383 F. Supp., at 525.

The District Court rejected the argument of the United States, USRA, and the Penn Central Trustees that if in fact the constitutional limit of permissible uncompensated erosion should be passed, plaintiffs would have an adequate remedy at law in the Court of Claims under the Tucker Act, 28 U.S.C. 1491. The District Court construed the Rail Act as precluding a Tucker Act remedy, stating:

“We are persuaded that the legislative history supports the conclusion that Congress intended that financial obligations be limited to the express terms of the Act. Article I, Section 9, Clause 7 [of the Constitution] provides that no money shall be drawn from the Treasury of the United States except in consequence of an appropriation made by law. Section 213 (b) [of the Rail Act], and section 214 entitled `Authorization for Appropriations’ place an express ceiling on expenditures. Section 210 describes the maximum obligational authority of [USRA], and the authorization for appropriation is limited to `such amounts as are necessary to discharge the obligations of the United States arising under this section.’ (Emphasis supplied.) Judicial review is delineated with specificity in Sections 209 (a) and 303 with no mention of the Court of Claims.” 383 F. Supp., at 528-529.

The District Court therefore declared 304 (f) governing interim abandonments

[419 U.S. 102, 120]

It consequently enjoined defendants below

“from taking any action to enforce the provisions of Section 304 (f) . . . with respect to any abandonment, cessation, or reduction of service which has been or may hereafter be determined by a court of competent jurisdiction to be necessary for the preservation of rights guaranteed by the United States Constitution.”

The District Court also declared that 303 relating to the final conveyance of rail properties pursuant to the Final System Plan is

“null and void as contravening the Fifth Amendment . . . insofar as it fails to provide compensation for interim erosion pending final implementation of the Final System Plan . . . .”

Finally, the District Court enjoined USRA “from certifying a Final System Plan to the Special Court pursuant to Section 209 (c).” 383 F. Supp., at 530.

The Rail Act was also challenged in the District Court as not “uniform” within the requirement of Art. I, 8, cl. 4, of the Constitution, which provides that Congress shall have the power to enact “uniform Laws on the subject of Bankruptcies throughout the United States.” The District Court dismissed this contention as without merit except as to one provision of 207 (b). The section provides that if any reorganization court determines in the 180-day proceedings under 207 (b) that the Act does not provide a fair and equitable process for the reorganization of a debtor, the debtor shall not be reorganized pursuant to the Act, and the reorganization court “shall dismiss the reorganization proceeding.” The District Court declared this part of 207 (b) “null and void, as violative of Article I, Section 8, Clause 4 . . .,” 13 and enjoined [419 U.S. 102, 121] “all parties . . . from enforcing, or taking any action to implement, so much of Section 207 (b) . . . as purports to require dismissal of pending proceedings for reorganization under Section 77 of the Bankruptcy Act.”

III

The Issues for Decision

The major issues dividing the parties are (1) whether an action at law in the Court of Claims under the Tucker Act, 28 U.S.C. 1491, will be available to recover any deficiency of constitutional dimension in the compensation provided under the Rail Act for either the alleged “erosion taking” or the alleged “conveyance taking,” and (2) if the Tucker Act remedy is available, whether it is an adequate remedy. The United States, USRA, and the Penn Central Trustees contend that if resort to a supplemental remedy under the Tucker Act is necessary, it is both available and adequate. The plaintiffs below contend that the Rail Act precludes resort to the Tucker Act remedy, and if it does not, that the remedy is inadequate.

The Special Court, speaking through Judge Friendly, comprehensively canvassed both issues, and in a thorough opinion, concluded that the Rail Act does not bar any necessary resort to the Tucker Act remedy and that the remedy is adequate. Our independent examination of the issues brings us to the same conclusion, substantially for the reasons stated by Judge Friendly in Parts VII and VIII-A of the Special Court opinion. 384 F. Supp. 895, 938-951 (1974). 14 [419 U.S. 102, 122]

Also disputed is the District Court’s ruling on the uniformity of the Rail Act under the Bankruptcy Clause. We hold that the currently operable portions of the Act are uniform.

IV

A

The Alleged “Erosion Taking”

In its opening brief, the United States, speaking for all federal parties except USRA, argued that the case involved no “erosion taking” because, as a matter of law, compelled-loss operations pending implementation of the Final System Plan would not constitute a taking of the property of the claimants against the bankrupt railroad estates. The argument was that the general rule that if the railroad “be taken to have granted to the public an interest in the use of the railroad it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss,” Brooks-Scanlon Co. v. Railroad Comm’n of Louisiana, 251 U.S. 396, 399 (1920); see also Bullock v. Florida ex rel. Railroad Comm’n, 254 U.S. 513 (1921); Railroad Comm’n of Texas v. Eastern Texas R. Co., 264 U.S. 79 (1924), is qualified by the requirement that a railroad estate suffer interim losses for a reasonable period pending good-faith efforts to develop a feasible reorganization plan if the public interest in continued [419 U.S. 102, 123] rail service justifies the requirement. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 677 (1935); see also RFC v. Denver & R. G. W. R. Co., 328 U.S. 495, 535 -536 (1946); New Haven Inclusion Cases, 399 U.S. 392, 493 (1970). The United States maintained that the Rail Act represented just such a good-faith effort. In its Reply Brief 3-4, however, it abandoned the position that the Final System Plan was sure to be implemented within a reasonable period:

“Difficulties now unforeseen and unanticipated could in fact delay final implementation of the final system plan. For example, Congress could, in theory, successively disapprove several proposed final system plans. Thus, whatever the probabilities, the parties and this Court have no absolute assurance that the plan will in fact be implemented within a reasonable time. For that reason, we have determined that a taking of property through interim erosion, although extremely unlikely, remains a theoretical possibility under the Rail Act.

“Accordingly, we believe that an injunction preventing [USRA] from denying applications for discontinuance of service under Section 304 (f) in those circumstances might be appropriate unless, as we contend, a remedy for any otherwise uncompensated taking will be available under the Tucker Act. We are therefore persuaded that this Court must reach and decide the `Tucker Act question’ presented by these appeals.” (Footnote omitted.)

We conclude in any event that the availability of a Tucker Act remedy if the Rail Act effects an “erosion taking” is ripe for adjudication. It is true that there has been no definitive determination that erosion of the Penn Central estate has reached unconstitutional dimensions [419 U.S. 102, 124] – that is, that the estate has suffered losses unreasonable even in light of the public interest in continued rail service pending reorganization. But the Penn Central Reorganization Court found that Penn Central is not “reorganizable on an income basis within a reasonable time under 77 of the Bankruptcy Act.” 382 F. Supp. 831, 842 (ED Pa. 1974). And it was stipulated in the District Court that Penn Central sustained ordinary net losses from mid-1970 through 1973 aggregating approximately $851 million, and that in the two months following enactment of the Rail Act on January 2, 1974, Penn Central had deficits in net railway operating income, total income, net income, and income available for fixed charges. It is therefore reasonable to conclude that compelled continued rail operations under these conditions pending implementation of the Final System Plan may accelerate erosion of the interests of plaintiffs below through accrual of post-bankruptcy claims having priority over their claims. Thus, failure to decide the availability of the Tucker Act would raise the distinct possibility that those plaintiffs would suffer an “erosion taking” without adequate assurance that compensation will ever be provided. 15 Yet there must be at the time of [419 U.S. 102, 125] taking “reasonable, certain and adequate provision for obtaining compensation.” Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659 (1890); see also Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677 (1923); United States v. Dow, 357 U.S. 17, 21 (1958). Therefore we must determine if the Tucker Act is available.

B

Availability of the Tucker Act Remedy for Any “Erosion Taking”

The Tucker Act, 28 U.S.C. 1491, provides in pertinent part:

[419 U.S. 102, 126]

with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”

A claim founded upon a taking of property for public use by operation of the Rail Act without just compensation in violation of the Fifth Amendment plainly would fall within the literal words of “any claim against the United States founded . . . upon the Constitution . . . .” The District Court, however, inquired whether the Rail Act affirmatively provided the Tucker Act remedy, and held that to “read a Tucker Act remedy into the [Rail] Act” would be “judicial legislation on a grand, if not arrogant, scale.” 383 F. Supp., at 529.

The District Court made the wrong inquiry. The question is not whether the Rail Act expresses an affirmative showing of congressional intent to permit recourse to a Tucker Act remedy. Rather, it is whether Congress has in the Rail Act withdrawn the Tucker Act grant of jurisdiction to the Court of Claims to hear a suit involving the Rail Act “founded . . . upon the Constitution.” For we agree with the Special Court that

“the true issue is whether there is sufficient proof that Congress intended to prevent such recourse. The [Rail] Act being admittedly silent on the point, the issue becomes whether the scheme of the [Rail] Act, supplemented by the legislative history, sufficiently evidences a Congressional intention to withdraw a remedy that would otherwise exist.” 384 F. Supp., at 939.

Our decisions affirm that this is the correct inquiry. The general rule is that whether or not the United States so intended, “[i]f there is a taking, the claim is `founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine.” United States v. Causby, 328 U.S. 256, 267 (1946). “[I]f the authorized action . . . does constitute a taking of property for [419 U.S. 102, 127] which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recovery by a suit in the Court of Claims.” Yearsley v. Ross Construction Co., 309 U.S. 18, 21 (1940). 16 See also Hurley v. Kincaid, 285 U.S. 95 (1932). In Yearsley, the Court, speaking through Mr. Chief Justice Hughes, went on to hold that “it cannot be doubted that the remedy to obtain compensation from the Government is as comprehensive as the requirement of the Constitution . . . .” 309 U.S., at 22 . (Emphasis supplied.)

We turn then to the inquiry whether the Rail Act withdrew the Tucker Act remedy “that would otherwise exist.” 384 F. Supp., at 939. The argument that it should be so read rests on provisions of the Rail Act said plainly to evince Congress’ determination that no federal funds beyond those expressly committed by the Act were to be paid for the rail properties.

The first provision referred to is 209 which provides for the impaneling of the Special Court and the consolidation before it of “all judicial proceedings with respect to the final system plan.” The argument attaches significance to the omission in 303 of any authority in the Special Court to enter a judgment against the United States. Reliance is also placed on two of the Act’s funding provisions. Section 210 (b), captioned “Maximum [419 U.S. 102, 128] obligational authority,” provides that the “aggregate amount of [USRA] obligations . . . which may be outstanding at any one time shall not exceed $1,500,000,000 of which the aggregate amount issued to [Conrail] shall not exceed $1,000,000,000 . . .,” and that “[a]ny modification to [these] limitations . . . shall be made by joint resolution adopted by the Congress.” Section 214 explicitly appropriates up to $12,500,000 to the Secretary of Transportation, to pay the expenses of “preparing the reports and exercising other functions to be performed by him under this chapter,” appropriates up to $5,000,000 to the Interstate Commerce Commission for its use in carrying out its functions, and appropriates up to $26,000,000 to USRA “for purposes of carrying out its administrative expenses . . . .”

But these provisions at least equally support the inference that Congress was so convinced that the huge sums provided would surely equal or exceed the required constitutional minimum that it never focused upon the possible need for a suit in the Court of Claims. That this may very well have been the case is evident in a statement in the House Report:

“The timely implementation of the Final System Plan cannot be obstructed by controversy over the payment for the properties. The Committee is of the opinion that provisions of this title of the [Rail] Act, and especially the provision for deficiency judgment and payment of obligations of [USRA] . . . are more than adequate to guarantee that the creditors of the bankrupt railroad will receive all that they may Constitutionally claim. In view of these extraordinary protections, no litigation should be permitted to delay the Final System Plan.” H. Rep. 55.

That inference also finds support in the provision of [419 U.S. 102, 129] 303 (c) (3) that authorizes the Special Court to reduce payments to bankrupt estates if they “are fairer and more equitable than is required as a constitutional minimum.” That provision suggests that Congress thought the compensation made possible by the Rail Act could well exceed that required by the Constitution, and gave no consideration to withdrawal of the Tucker Act remedy because it was sure the Rail Act itself provided at least the constitutional minimum compensation.

Finally, the manner in which Congress in 601, 45 U.S.C. 791 (1970 ed., Supp. III), expressly addressed the Rail Act’s “Relationship to other laws” plainly implies that Congress gave no thought to consideration of withdrawal of the Tucker Act remedy. Section 601 (a) (2) provides that the “antitrust laws are inapplicable with respect to any action taken to formulate or implement the final system plan . . .”; 601 (b) provides that “[t]he provisions of the Interstate Commerce Act and the Bankruptcy Act are inapplicable to transactions under this chapter to the extent necessary to formulate and implement the final system plan whenever a provision of any such Act is inconsistent with this chapter”; 601 (c) provides that, “[t]he provisions of section 4332 (2) (C) of Title 42 [National Environmental Policy Act of 1969] shall not apply with respect to any action taken under authority of this chapter before the effective date of the final system plan.” Yet despite this clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws, Congress nowhere addresses the Tucker Act question.

It is argued that any uncertainty in the scheme and text of the Rail Act is cleared up by legislative history from the House and the Senate that discloses that Congress meant the Rail Act to withdraw the jurisdiction of the Court of Claims under the Tucker Act. To the contrary, [419 U.S. 102, 130] we read the legislative history as disclosing no more than a repeatedly emphasized belief that the Rail Act’s provisions for compensation for the rail properties assured payment of the constitutional minimum. This is plainly the import of the oft-stated view that the taxpayers would not be unduly burdened by the sums provided, see, e. g., 119 Cong. Rec. 36354 (1973) (remarks of Rep. Metcalfe); id., at 36359 (remarks of Rep. Conte); and also of Senator Hartke’s explanation of the Conference Report to the Senate, id., at 43094-43095, which included the statement:

[419 U.S. 102, 131]

As the Special Court remarked, and we agree, this statement in context is “not inconsistent with the view that the Senator was so convinced that the bill, as amended in conference, contained such adequate compensation provisions that a suit in the Court of Claims could not prevail, particularly in view of what he had characterized as a `rather slim’ chance of the creditors getting their money through liquidation, rather than as meaning that such a claim could not be maintained.” 384 F. Supp., at 941.

We do not think that the argument in support of reading the Rail Act to withdraw the Tucker Act remedy is aided by the colloquy on the House side between the House managers of the bill, 119 Cong. Rec. 42947 (1973). 18 That colloquy does not even concern the withdrawal [419 U.S. 102, 132] of Court of Claims jurisdiction. It concerns only the deficiency judgment against Conrail and the powers of the Special Court.

Finally, reliance is put upon what is referred to as “subsequent legislative history” in the form of statements by Congressmen during Oversight Hearings of the House Subcommittee on Transportation and Aeronautics on June 14, 1974, and on an amicus brief filed in this Court on behalf of 36 Congressmen. But post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the Act’s passage. See, e. g., United States v. Mine Workers of America, 330 U.S. 258, 282 (1947). Such statements “represent only the personal views of these legislators. since the statements were [made] after passage of the Act.” National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 639 n. 34 (1967). Moreover, during oral argument before this Court, Representative Adams, spokesman for the congressional group, expressly conceded that circumstances might arise when the Tucker Act remedy would be available:

“QUESTION: So you do anticipate a situation where the Tucker Act would be available?

[419 U.S. 102, 133]

you held us beyond the constitutional limit on erosion and at that point we are of the opinion that it went just too long, it was unreasonable, but that is a specific individual case at that point.

“QUESTION: And so the Tucker Act, you think, would be available in that situation?

(Emphasis supplied.)

In sum, we cannot find that the legislative history supports the argument that the Rail Act should be construed to withdraw the Tucker Act remedy. The most that can be said is that the Rail Act is ambiguous on the question. In that circumstance, applicable canons of statutory construction require us to conclude that the Rail Act is not to be read to withdraw the remedy under the Tucker Act.

One canon of construction is that repeals by implication are disfavored. See, e. g., Mercantile National Bank v. Langdeau, 371 U.S. 555, 565 (1963); United States v. Borden Co., 308 U.S. 188, 198 -199 (1939); Amell v. United States, 384 U.S. 158, 165 -166 (1966). Rather, since the Tucker Act and the Rail Act are “capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard [419 U.S. 102, 134] each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). Moreover, the Rail Act is the later of the two statutes and we agree with the Special Court:

“A new statute will not be read as wholly or even partially amending a prior one unless there exists a `positive repugnancy’ between the provisions of the new and those of the old that cannot be reconciled. . . . This principle rests on a sound foundation. Presumably Congress had given serious thought to the earlier statute, here the broadly based jurisdiction of the Court of Claims. Before holding that the result of the earlier consideration has been repealed or qualified, it is reasonable for a court to insist on the legislature’s using language showing that it has made a considered determination to that end. . . .” 384 F. Supp., at 943.

The other relevant canon of construction that comes into play is that when a statute is ambiguous, “construction should go in the direction of constitutional policy.” United States v. Johnson, 323 U.S. 273, 276 (1944). There are clearly grave doubts whether the Rail Act would be constitutional if a Tucker Act remedy were not available as compensation for any unconstitutional erosion not compensated under the Act itself. In such case, as the Special Court observed, “[w]hen one admissible construction will preserve a statute from unconstitutionality and another will condemn it, the former is favored even if language, . . . and arguably the legislative history point somewhat more strongly in another way.” 384 F. Supp., at 944. In other words our “task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations.” CSC v. Letter Carriers, 413 U.S. 548, 571 (1973).

Lynch v. United States, 292 U.S. 571 (1934), fully supports [419 U.S. 102, 135] our conclusion. Lynch presented a situation requiring this Court to determine whether a statute that effected an unconstitutional taking was also to be construed to withdraw a cause of action created by an earlier statute. The Economy Act of 1933, 48 Stat. 11, provided in 17 that “all laws granting or pertaining to yearly renewable term insurance are hereby repealed . . . .” District Courts, affirmed by the Courts of Appeals for the Fifth Circuit, 67 F.2d 490 (1933), and the Seventh Circuit, Wilner v. United States, 68 F.2d 442 (1934), dismissed, on the basis of this provision, suits by beneficiaries of yearly renewable term policies brought under 405 of the War Risk Insurance Act of 1917, 40 Stat. 410, expressly authorizing suits in the district courts respecting any “disagreement as to a claim under the contract of insurance.” The beneficiaries’ claim was that there was an actionable “disagreement” within the meaning of 405 because the Government had violated the terms of the policies by failing to pay the premiums when the insureds became totally and permanently disabled and had refused payment of benefits after the insureds died. This Court unanimously reversed the dismissals. Section 17 of the Economy Act was held to effect an unconstitutional taking of vested property rights in the beneficiaries created by the insurance contracts. The question then became whether 17 had repealed the remedy of a suit in the district court provided by 405 of the Insurance Act. The Court held, speaking through Mr. Justice Brandeis, that 17 would not be read as depriving the beneficiaries of that remedy in the absence of a clear indication from Congress that the remedy was taken away. The Court said:

[419 U.S. 102, 136]

away the contractual right, it also intended to take away the remedy; that since it had power to take away the remedy, the statute should be given effect to that extent, even if void insofar as it purported to take away the contractual right. The suggestion is at war with settled rules of construction. It is true that a statute bad in part is not necessarily void in its entirety. A provision within the legislative power may be allowed to stand if it is separable from the bad. But no provision however unobjectionable in itself, can stand unless it appears both that, standing alone, the provision can be given legal effect and that the legislature intended the unobjectionable provision to stand in case other provisions held bad should fall. Dorchy v. Kansas, 264 U.S. 286, 288 , 290. Here, both those essentials are absent. There is no separate provision in 17 dealing with the remedy; and it does not appear that Congress wished to deny the remedy if the repeal of the contractual right was held void under the Fifth Amendment.” 292 U.S., at 586 .

Similarly, “[t]here is no separate provision in [the Rail Act] dealing with the [Tucker Act] remedy; and it does not appear [from the statute or its legislative history] that Congress wished to deny the remedy” if the Rail Act should cause an “erosion taking” that would require the payment of just compensation.

We accordingly hold that the Tucker Act remedy is not barred by the Rail Act but is available to provide just compensation for any “erosion taking” effected by the Rail Act.

V

A

The Alleged “Conveyance Taking”

The District Court declined to decide whether the provisions governing the procedures for and terms of the [419 U.S. 102, 137] final conveyance of rail properties to Conrail (the “conveyance taking” issue) violate the Fifth Amendment, thus rendering the Rail Act invalid in its entirety. 20 The District Court was “persuaded that these issues are premature.” 383 F. Supp., at 517.

Briefly, the challenges to the final-conveyance provisions assert that the Rail Act is basically an eminent domain statute and, because compensation is not in cash but largely in stock of an unproved entity, will necessarily work an unconstitutional taking. 21 A variant of the argument is that, even if a reorganization statute, the Rail Act would be unconstitutional unless the Tucker Act remedy is now held to assure payment of any amount by which the market value of stocks and securities awarded by the Special Court is less than the value of the rail properties conveyed. The New Haven Trustee goes further; he argues that even if a reorganization statute, the Rail Act violates substantive due process by failing to assure the “fair and equitable equivalent” of the rail properties valued at their “highest and best use.” The New Haven Trustee also contends that the conveyance provisions constitute a taking such as that threatened by interim erosion: they require operations of the railroad to continue, albeit in a different form, even if the liquidation value for “highest and best use” is greater than the value of the railroad as a going concern. Finally, the [419 U.S. 102, 138] New Haven Trustee and the creditor parties contend that the conveyance provisions deny procedural due process, because they mandate the final conveyance before any meaningful determination of its fairness, and because no provision is made for creditor or stockholder consideration of or voting upon the Final System Plan.

All of the parties now urge that the “conveyance taking” issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live “Case or Controversy,” 22 we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the “Case or Controversy” sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, 23 the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties.

The District Court’s holding of prematurity was influenced by the statutory scheme that requires several decisional steps before the final conveyance. The possibility that the reorganization court might determine under 207 (b) that the Rail Act process is not fair and equitable to the railroad estate, or that Congress might disapprove the Final System Plan, 208 (a), or that the Special Court would not order the final conveyance pursuant to 303 (b), led the District Court to conclude that the question whether the final-conveyance provisions are constitutional was “too speculative to warrant anticipatory [419 U.S. 102, 139] judicial determinations.” Eccles v. Peoples Bank, 333 U.S. 426, 432 (1948). 24

But subsequent to the District Court’s opinion, the Penn Central Reorganization Court determined that the Rail Act did not provide a process that would be fair and equitable to the estate, In re Penn Central Trans. Co., 382 F. Supp. 856 (ED Pa. 1974). On appeal to the Special Court under 207 (b), that determination has been reversed, although the Special Court has not rendered its judgment, pending our decision of this case. 384 F. Supp., at 955. See n. 14, supra.

We agree with the parties that this change in circumstance has substantially altered the posture of the case as [419 U.S. 102, 140] regards the maturity of the final-conveyance issues. Whatever may have been the case at the time of the District Court decision, there can be little doubt, for reasons to be detailed, that some of the “conveyance taking” issues can and must be decided at this time. And, since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court’s decision that must govern. 25

First, the implementation of the Rail Act will now lead inexorably to the final conveyance, although the exact date of that conveyance cannot be presently determined. It is true that Congress can reject the first plan presented to it by the USRA, 208 (a), and that the Rail Act, while prescribing with precision the timing of the presentation of that plan, 207 (c) and (d), does not mandate the presentation of successive plans at any particular time. The Rail Act does, however, contemplate that USRA will continue to present plans, 208 (b), until one becomes “effective,” 209 (a). Thus, we must assume there will be compliance with the Rail Act’s mandatory terms in this respect and that a Final System Plan will at some time be certified to the Special Court. 209 (c). 26 [419 U.S. 102, 141]

Second, the Special Court is mandated to order the conveyance of rail properties included in the Final System Plan and is granted no discretion not to order the transfer. 27 While mandatory language does not necessarily deny a court of equity flexibility, Hecht Co. v. Bowles, [419 U.S. 102, 142] 321 U.S. 321, 329 (1944), the central scheme of the Rail Act defers decision of any controversies over the terms of the transfer of rail properties until after the transfer has occurred. H. Rep. 55; S. Rep. No. 93-601, p. 34 (1973) (hereinafter S. Rep.). 28 The Special Court’s opinion suggests that the mandatory order to convey probably could not prevent the Special Court from refusing to order the conveyance, indirectly if not by a direct injunction, if it were convinced that appellees’ constitutional rights were certain to be violated. 384 F. Supp., at 931; Marbury v. Madison, 1 Cranch 137 (1803). But the possibility that a court may later decline to enforce the Rail Act as written because of its unconstitutionality cannot constitute a contingency itself pretermitting earlier consideration of the constitutionality of the Act. Cf. Albertson v. SACB, 382 U.S. 70, 76 -77 (1965).

It appears, then, that the conveyance of Penn Central’s rail properties to Conrail cannot be prevented by the debtor or its creditors or stockholder; and, while the exact terms of the conveyance remain to be decided, an order of the Special Court directing the conveyance is [419 U.S. 102, 143] virtually a certainty. The Rail Act empowers no court, including this Court, to prevent it.

Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. Pennsylvania v. West Virginia, 262 U.S. 553, 592 -593 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 536 (1925); Carter v. Carter Coal Co., 298 U.S. 238, 287 (1936). “One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Pennsylvania v. West Virginia, supra, at 593. 29

True, there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available. Cf. Public [419 U.S. 102, 144] Affairs Press v. Rickover, 369 U.S. 111 (1962). Several factors militate, however, against that course in this case.

First, decisions to be made now or in the short future may be affected by whether or not the “conveyance taking” issues are now decided. The constitutionality of the final conveyance may be interwoven with the validity of the abandonment provisions. See n. 24, supra. The Penn Central Trustees may delay expending funds for maintenance in the interval before the final conveyance if constitutional doubts linger about ultimate reorganization under the Rail Act. See Reply Brief for Penn Central Trustees 12.

Second, the Act is a carefully structured method for planning and implementing a reorganization scheme. It necessitates the present denial to the railroads in reorganization of options otherwise available. For example, the New Haven Trustee filed in the District Court a motion to dismiss the 77 proceeding, and to set up an equity receivership to liquidate Penn Central’s assets. So long as reorganization under the Rail Act remains possible, an equity receivership is not available.

Third, and particularly significant, because of the structure of the Act there is no better time to decide the constitutionality of the Act’s mandatory conveyance scheme to minimize or prevent irreparable injury. The precise contours of the Final System Plan will not be known until shortly before its certification to the Special Court. 30 [419 U.S. 102, 145] Until that Plan has been finally developed, the courts will not have any more settled facts concerning the rail properties to be conveyed, the valuation of those properties, or the value of Conrail stock and other securities to be transferred to the Penn Central estate than they do now.

After the Final System Plan is effective, the Rail Act prohibits initial judicial review of its terms except by the Special Court. 209 (a), 303 (b) (2). And this review is to occur after conveyance, not before. 31 Further, as all parties agree, the conveyance, because of its complexity and because of the long time lapse probable before valuation review is completed, in practical effect will be irreversible once it is made.

Thus, we will be in no better position later than we are now to confront the validity of the final-conveyance provisions. Rather, delay in decision will create the serious risk that consideration of the validity of those provisions may either be too hasty to afford protection of rights or too late to prevent the conveyance or assure compensation if the Rail Act were found unconstitutional. 32

We hold, therefore, that the basic “conveyance taking” issues are now ripe for adjudication. This does not mean however that we need decide now all of the contentions pressed upon us. “Even where some of the provisions [419 U.S. 102, 146] of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality.” Communist Party v. SACB, 367 U.S. 1, 71 (1961).

For example, the controversy over the proper valuation theory to be applied to both the rail properties and the stock of Conrail provided as compensation depends upon contingencies that argue forcefully for postponement of its resolution. The parties have stipulated that it will be impossible to ascertain until the Final System Plan is effective which rail properties will be transferred to Conrail, or their value on any valuation theory, or the value of the consideration to be exchanged for the rail properties. App. 205, 319, 371. Thus, it cannot be determined now what impact any particular theory of valuation may have when applied to either side of the equation, nor can we know where the interests of the various parties lie – that is, which methods of valuation would result in higher compensation to the estate or lower cost to Conrail. Rulings on these questions would plainly be rulings upon “hypothetical situations that may or may not [arise].” Longshoremen’s Union v. Boyd, 347 U.S. 222, 224 (1954).

Moreover, valuation issues peculiarly require a much more developed record than has been prepared. Without evidence of actual figures supporting various valuation theories, a court is not able to discern “what legal issues it is deciding, what effect its decision will have on the adversaries, [or] some useful purpose to be achieved in deciding them.” Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 244 (1952). Clearly the record on these issues does not yet provide the “confining circumstances of particular situations,” Communist Party v. SACB, supra, at 72, which best inform constitutional adjudication. [419 U.S. 102, 147]

Finally, there will be ample opportunity later to litigate valuation controversies after the factual record has matured. The Rail Act in terms vests the Special Court with the initial responsibility for valuation determinations, 33 subject to review by this Court. In that circumstance, we should surely await the Special Court’s determinations. Public Service Comm’n v. Wycoff Co., supra, at 246. Were we to attempt decisions of valuation questions before the Special Court’s determinations, we would necessarily be forced to a speculative interpretation of a statute not clear on the subject of valuation before the court entrusted with its construction has given us the benefit of its views. 34 Cf. Public Service Comm’n v. Wycoff Co., supra; Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412 (1937).

In sum, of the “conveyance taking” issues, we hold ripe for adjudication the questions (a) of the availability of the Tucker Act remedy if the consideration exchanged upon final conveyance of the rail properties is less than the constitutional minimum, (b) whether stocks, however valued, can be part of the consideration for the rail properties, and (c) whether procedural due process will be denied by the statutory process for conveyance. We hold further that decision of the questions concerning the [419 U.S. 102, 148] method of valuation to be applied to either the rail properties or the consideration therefore is premature.

B

Availability of Tucker Act Remedy for Any “Conveyance Taking”

Whether the Rail Act precludes the availability of the Tucker Act remedy for any amount by which the consideration exchanged for the rail properties finally conveyed falls short of the constitutional minimum need not detain us. The reasons that led to our conclusion that the Rail Act, insofar as it may work an unconstitutional taking due to interim erosion, does not render a Tucker Act remedy unavailable apply equally to the “conveyance taking” issue. No party has suggested that a difference in result can be supported. The Rail Act authorizes inclusion in the Final System Plan of different kinds of consideration in exchange for the rail properties, subject to adjustment by the Special Court to assure fairness and equity. Congress fully expected that this consideration would provide the minimum compensation required by the Constitution; it wished to provide no more. If, however, that hopeful expectation should not be fulfilled, and the consideration exchanged for the rail properties should prove to be less than the constitutional minimum, the Tucker Act will be available as the jurisdictional basis for a suit in the Court of Claims for a cash award to cover any constitutional shortfall.

C

Adequacy of the Tucker Act Remedy for “Conveyance Taking”

It is argued, however, that, even if a Tucker Act remedy remains open, the remedy is inadequate because it fails to cure basic deficiencies in the conveyance provisions of [419 U.S. 102, 149] the Rail Act. 35 We hold, to the contrary, that while the conveyance provisions of the Rail Act might raise serious constitutional questions if a Tucker Act suit were precluded, the availability of the Tucker Act guarantees an adequate remedy at law for any taking which might occur as a result of the final-conveyance provisions. Further, with the Tucker Act remedy, the payment of “fair and equitable consideration” in compliance with the reorganization statutes is assured, and procedural due process is satisfied.

Primarily, it is contended that the Tucker Act remedy is inadequate because the “conveyance taking” is an exercise of the eminent domain power and therefore requires full cash payment for the rail properties. 36 Since our reasons [419 U.S. 102, 150] supporting the availability of the Tucker Act remedy assume that the basic compensation scheme of the Act is valid but could result in payment of less than the constitutional minimum, it might indeed be inconsistent with the Rail Act to suppose that a Tucker Act suit would lie for the entire value, in cash, of the rail properties.

This argument fails, however, for two reasons. First, it is extremely questionable whether, even if the Rail Act were on its face an acquisition of private property for public use, the entire value of the property acquired would have to be paid in cash. More important, we believe that there is nothing in the Act fundamentally at odds with the expressed purpose of Congress to supplement the reorganization laws, see H. Rep. 29, and, with the Tucker Act, the Rail Act is valid as a reorganization statute.

No decision of this Court holds that compensation other than money is an inadequate form of compensation under eminent domain statutes. Statements can be found in opinions that the compensation “must be a full and perfect equivalent for the property taken,” Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893); must reimburse “the full and perfect equivalent in money of the property taken,” United States v. Miller, 317 U.S. 369, 373 (1943); and must be the “full monetary equivalent of the property taken,” United States v. Reynolds, 397 U.S. 14, 16 (1970); see also Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473 (1973). 37 Yet, in none of these cases was compensation [419 U.S. 102, 151] in a form other than cash at issue. The clear implication of other decisions is that consideration other than cash – for example, any special benefits 38 to a property owner’s remaining properties – may be counted in the determination of just compensation. Bauman v. Ross, 167 U.S. 548, 584 (1897); see 3 P. Nichols, Eminent Domain 8.62 et seq. (rev. 3d ed. 1974). 39

We need not, however, determine whether compensation in the form of securities would be constitutional if the Rail Act were merely an eminent domain statute; [419 U.S. 102, 152] for the arguments in favor of this construction have no merit.

First, it is contended that despite the express provision of 301 (b) that Conrail “shall not be an agency or instrumentality of the Federal Government,” 45 U.S.C. 741 (b) (1970 ed., Supp. III), federal participation through federally appointed members of the board of directors constitutes Conrail a federal instrumentality. 40 From that premise the contention proceeds that the conveyance is an exercise of eminent domain. But Conrail is not a federal instrumentality by reason of the federal representation on its board of directors. That representation was provided to protect the United States’ important interest in assuring payment of the obligations guaranteed by the United States. Full voting control of Conrail will shift to the shareholders if federal obligations fall below 50% of Conrail’s indebtedness. The responsibilities of the federal directors are not different from those of the other directors – to operate Conrail at a profit for the benefit of its shareholders. Thus, Conrail will be basically a private, not a governmental, enterprise.

Second, it is contended that the Rail Act’s provisions for a compelled conveyance and for the continuation of rail services pending formulation of the Final System Plan constitute the Act a condemnation statute. We see [419 U.S. 102, 153] no significance in these features of the Act either. Congress, in enacting those provisions, clearly intended to legislate pursuant to the bankruptcy power. The Rail Act, like 77 of the Bankruptcy Act, which the Rail Act supplements, merely “advances another step in the direction of liberalizing the law on the subject of bankruptcies,” Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 671 (1935), and “far-reaching though [it] be, [it has] not gone beyond the limit of congressional power . . . .” Ibid. That is the teaching of RFC v. Denver & R. G. W. R. Co., 328 U.S. 495 (1946), where the Court sustained the “cram-down” provision of 77 authorizing a reorganization court to confirm a plan despite its rejection by creditors. The Court said: “We think that the provisions for confirmation by the courts over the creditors’ objection are within the bankruptcy powers of Congress. Those powers are adequate to eliminate claims by administrative valuations with judicial review and they are adequate to require creditors to acquiesce in a fair adjustment of their claims, so long as the creditor gets all the value of his lien and his share of any free assets.” Id., at 533. 41 Similarly, under [419 U.S. 102, 154] the Rail Act, the Special Court has the duty to provide the railroad estates with the “fair and equitable” equivalent in Conrail securities for the rail properties conveyed.

Finally, it is argued that there are defects in the Rail Act’s provisions for judicial review that identify the Act as an exercise of the eminent domain power. The argument is frivolous. Although the time has not yet arrived for the mandatory transfer to Conrail, the reorganization courts have had a full opportunity to assess the fairness of the Rail Act’s scheme to the rail estates. 207 (b). The Special Court has reviewed those determinations and under 303 (c) will have an opportunity to review the terms of the transfer, although not the conveyance itself. In addition, neither the Rail Act itself nor the procedures thereunder finally determine the interests of the respective creditors. Those will be decided in the 77 reorganization courts, which will distribute to creditors the consideration received for the rail properties. There are, therefore, ample adequate “[s]afeguards . . . to protect the rights of secured creditors . . . to the extent of the value of the property.” Wright v. Union Central Life Ins. Co., 311 U.S. 273, 278 (1940); cf. North American Co. v. SEC, 327 U.S. 686 (1946).

We are not to be understood to intimate that the Rail Act proceeding could not result in a compensable taking. We hold only that, since the Rail Act does not on its face exceed the broad scope of congressional power under the Bankruptcy Clause, cf. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., supra, at 670, 42 Congress has not formulated an unconstitutional reorganization plan in compelling a reorganization wherein the compensation to appellees consists of Conrail and USRA securities and other benefits “so long as the creditor gets [419 U.S. 102, 155] all the value of his lien and his share of any free assets.” RFC v. Denver & R. G. W. R. Co., supra, at 533.

This Act does differ from other reorganization statutes such as 77, however, in that it requires a conveyance before it is possible to ascertain whether this last condition will be met. Thus, the conveyance is mandated without any prior judicial finding that there will be adequate resources in the reorganized company of whatever kind to compensate the debtor estates and, eventually, their creditors. Because of this congressional insistence upon accomplishing the transfer whatever the ultimate equity of the compensation provisions, any deficiency of constitutional magnitude in the value of the limited compensation provided under the Act will indeed be a taking of private property for public use. Cf. North American Co. v. SEC, supra, at 710. 43 Since we have already determined, however, that there would then be recourse to a Tucker Act suit in the Court of Claims for a cash award to cover any constitutional shortfall, the Rail Act does provide adequate assurance that any taking will be compensated.

The remaining contentions regarding the validity of the final-conveyance provisions require little discussion in view of the availability of a Tucker Act suit.

The first contention is that, even if considered as a reorganization statute, the Rail Act fails to assure that creditors will receive the full value of their liens in stock or securities. However, we have already held that, because of the possibility that the Rail Act will work a taking, there must be assurance of consideration equal to any constitutional shortfall, and that a Tucker Act remedy is available to provide that assurance. Thus, the value of [419 U.S. 102, 156] the stocks and securities provided under the Act is backed up by what is essentially a guarantee of cash payment for any lack of fairness and equity of constitutional dimensions. The Tucker Act remedy fulfills perfectly, then, the function of the underwriting provision approved in the New Haven Inclusion Cases, 399 U.S., at 486 -488.

Similarly, the availability of the Tucker Act cures what might otherwise be a troublesome problem of procedural due process. The Tucker Act assures that the railroad estates and the creditors will eventually be made whole for the assets conveyed. Complainants evidence no interest in retaining their property for longer than the Rail Act requires. Indeed, their position is really that they want to be free to dispose of it sooner. Thus, there is no interest asserted in retaining the properties themselves; the only interest is in making sure that creditors receive fair compensation for those properties. On the other hand, the procedural sequence is vital to accomplishing the goals of the Act. If judicial review of the terms of the transfer was required before the conveyance could occur, the conveyance might well come too late to resolve the rail transportation crisis. As long as creditors are assured fair value, with interest, for their properties, the Constitution requires nothing more.

VI

Validity of the Rail Act Under Uniformity Requirement of Bankruptcy Clause

We consider finally the contention that, because the Rail Act’s provisions apply only to railroads in reorganization in the “region,” the statute lacks the uniformity required by Art. I, 8, cl. 4, of the Constitution giving Congress power “To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.”

The District Court held that “recourse to the bankruptcy [419 U.S. 102, 157] clause to justify Congressional action is necessary only if that action impairs the obligation of contracts.” 383 F. Supp., at 534 (Fullam, J., concurring). In that respect, the court found that the Rail Act adds virtually nothing to the powers already granted to reorganization courts under the “uniform and admittedly valid provisions of 77 of the Bankruptcy Act. . . . Authority to order conveyances free and clear of liens, and to `cram down’ a plan of reorganization, already exists under 77, and is not newly created or added by the [Rail] Act.” Ibid.

The court determined, however, that one provision of the Rail Act is “newly created or added by the [Rail] Act.” Section 207 (b) requires the reorganization court to dismiss the 77 proceeding if it finds that the railroad is not reorganizable on an income basis within a reasonable time, and that the Rail Act does not provide a process which would be fair and equitable to the estate of the railroad in reorganization. The District Court noted that the New Haven Inclusion Cases, supra, held that inasmuch as the plan disposed of the New Haven’s assets to the Penn Central for continued operations, 77 could be used to reorganize the enterprise as an investment holding company, “at least where the plan contemplates that the bulk of the rail properties will continue to be operated as a railroad by someone.” 383 F. Supp., at 534. The District Court held that 207 (b) of the Rail Act precludes a like reorganization under 77 by requiring dismissal of the 77 proceedings, and to that extent violates the uniformity clause since this dismissal relates only to debtors within the region covered by the Rail Act.

We need not decide whether the District Court was correct in this respect. Following the decision of the District Court, the Penn Central Reorganization Court issued its 180-day order finding that, although Penn Central is not [419 U.S. 102, 158] reorganizable on an income basis under 77, the Rail Act does not provide a process which would be fair and equitable to the debtor’s estate. 382 F. Supp. 856, 870-871. Rather than dismiss the 77 proceeding as required by 207 (b), however, the court stayed its order pending an appeal to the Special Court. The Special Court found that the processes prescribed in the Rail Act are fair and equitable if a remedy exists under the Tucker Act, and reversed. 384 F. Supp., at 910-911. The Rail Act expressly provides that this holding is nonreviewable. 207 (b). Although we need not address today the issue whether the judgment of the Special Court is subject to review, we do hold that the Tucker Act remedy is available for any uncompensated taking occurring under the Rail Act. That holding obviates the possibility that the Penn Central Reorganization Court will ever confront the provisions for dismissal of a 77 proceeding under 207 (b) of the Rail Act.

There remains, however, another aspect of the uniformity issue for decision. Appellees urge that the entire Rail Act violates the uniformity clause. The argument is that the uniformity required by the Constitution is geographic, Hanover National Bank v. Moyses, 186 U.S. 181, 188 (1902), and since the Rail Act operates only in a single statutorily defined region, the Act is geographically nonuniform.

The argument has a certain surface appeal but is without merit because it overlooks the flexibility inherent in the constitutional provision. Section 77 was upheld against a like challenge on the ground of the “capacity of the bankruptcy clause to meet new conditions as they have been disclosed as a result of the tremendous growth of business and development of human activities from 1800 to the present day.” Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & [419 U.S. 102, 159] P. R. Co., 294 U.S., at 671 . The Court therefore held that, though 77 was a distinctive and far-reaching statute, treating railroad bankruptcies as a distinctive and special problem, it was not “beyond the limit of congressional power.” 44

The uniformity provision does not deny Congress power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems. “The problem dealt with [under the Bankruptcy Clause] may present significant variations in different parts of the country.” Wright v. Vinton Branch, 300 U.S. 440, 463 n. 7 (1937). We therefore agree with the Special Court that the uniformity clause was not intended “to hobble Congress by forcing it into nationwide enactments to deal with conditions calling for remedy only in certain regions.” 384 F. Supp., at 915.

The national rail transportation crisis that produced the Rail Act centered in the problems of the rail carriers operating in the region defined by the Act, and these were the problems Congress addressed. 45 No railroad reorganization [419 U.S. 102, 160] proceeding, within the meaning of the Rail Act, was pending outside that defined region on the effective date of the Act or during the 180-day period following the statute’s effective date. Thus the Rail Act in fact operates uniformly upon all bankrupt railroads then operating in the United States and uniformly with respect to all creditors of each of these railroads.

The uniformity clause requires that the Rail Act apply equally to all creditors and all debtors, and plainly this Act fulfills those requirements. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 172 (1946) (Frankfurter, J., concurring). “No provision of the Act restricts the right of any creditor wheresoever located to obtain relief because of regionalism.” 383 F. Supp., at 519.

Our construction of the Bankruptcy Clause’s uniformity provision comports with this Court’s construction of other “uniform” provisions of the Constitution. The Head Money Cases, 112 U.S. 580 (1884), involved the levy on ships’ agents or owners of a 50-cent tax for any passenger not a United States citizen who entered an American port from a foreign port “by steam or sail vessel.” Individuals engaged in transporting passengers from Holland to the United States challenged the levy as contrary to Art. I, 8, cl. 1, under which Congress is empowered to lay and collect “all Duties, Imposts and Excises [which] shall be uniform throughout the United States.” The argument was that the head tax violated the uniformity clause because it was not also levied on noncitizen passengers entering this country by rail or other inland mode of conveyance. The Court upheld the tax, stating:

[419 U.S. 102, 161]

and operates precisely alike in every port of the United States where such passengers can be landed.” 112 U.S., at 594 .

That the tax was not imposed on noncitizens entering the Nation across inland borders did not render the tax nonuniform since “the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation.” Id., at 595. Similarly, the Rail Act is designed to solve “the evil to be remedied,” and thus satisfies the uniformity requirement of the Bankruptcy Clause. The argument that the Rail Act differs from the head tax statute because by its own terms the Rail Act applies only to one designated region is without merit. The definition of the region does not obscure the reality that the legislation applies to all railroads under reorganization pursuant to 77 during the time the Act applies.

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