BNUMBER:  B-277814 
DATE:  October 20, 1997
TITLE: [Letter], B-277814, October 20, 1997
**********************************************************************

B-277814

October 20, 1997

The Honorable John R. Kasich
Chairman, Committee on the Budget
House of Representatives

Dear Mr. Chairman:

This is in response to your letter of August 13, 1997, written jointly 
with Chairman Bud Shuster, requesting our opinion on several questions 
pertaining to the National Railroad Passenger Corporation (Amtrak).  
You asked whether any changes in law warranted altering our 1985 
opinion (1) that the United States would not be liable for Amtrak's 
labor protection obligations in the event of a partial or complete 
discontinuance of passenger service, and (2) that Amtrak and its 
employees could not negotiate changes to existing labor protection 
arrangements without legislation. You also asked whether Amtrak and 
its employees could mutually agree to alter the current statutory 
restriction on Amtrak's contracting out of non-food service work.  
Finally, you asked whether Amtrak's pending non-labor protection 
liabilities would be attributable to the United States in the event of 
an Amtrak bankruptcy.  We understand that your request was prompted, 
at least in part, by Amtrak's current precarious financial situation, 
exacerbated by the possibility of a strike this month by the Amtrak 
employees who maintain the tracks, bridges, buildings and other 
structures on Amtrak-owned rights-of-way.

As we pointed out in our 1985 opinion, B-217662, Mar. 18, 1985, 
legitimate differences of opinion exist with respect to questions 
about the rights and obligations of the United States in the event of 
an Amtrak bankruptcy.  For the reasons stated below, we continue to 
believe (1) that the United States would not be liable for the labor 
protection obligations arising from a partial or complete 
discontinuance of passenger service, and (2) that modifications to 
Amtrak's labor protection obligations would require legislation.  We 
also conclude that Amtrak labor and management are not free to alter 
the current restriction on Amtrak's contracting out of non-food 
service work.  Further, we do not believe that the United States would 
be liable for Amtrak's pending non-labor protection obligations in the 
event of a bankruptcy.[1]        

In preparing this opinion, we formally solicited the views of Amtrak 
and the Departments of Justice and Transportation.  We received 
written responses from Amtrak and the Department of Transportation.  
The Department of Transportation agrees with our opinion that the 
United States would not be liable for Amtrak's labor protection 
obligations and other debts, as well as our other conclusions.  We 
have presented Amtrak's views in our discussion. 

BACKGROUND

To prevent the complete abandonment of intercity rail passenger 
service following decades of declining passenger train usage, Congress 
passed the Rail Passenger Service Act of 1970.  H.R. Rep. No. 91-1580, 
at 2-3 (1970), reprinted in 1970 U.S.C.C.A.N. 4735, 4736-7.  The Act 
authorized the creation of the National Railroad Passenger Corporation 
(Amtrak) to provide intercity rail passenger service in an innovative 
manner so as to "fully develop the potential of modern rail service in 
meeting the Nation's intercity passenger transportation requirements."  
Pub. L. No. 91-518  sec.  301, 84 Stat. 1327, 1330 (1970).  Amtrak was 
incorporated under the District of Columbia Business Corporation Act 
and, under section 401(a) of the Rail Passenger Service Act, entered 
into contracts with existing railroads to relieve them of "their 
entire responsibility for the provision of intercity rail passenger 
service."  See 84 Stat. at 1334.

Amtrak has a nine-member Board of Directors, consisting of the 
Secretary of Transportation who serves ex officio; five individuals 
appointed by the President, three with the advice and consent of the 
Senate;[2] two individuals selected by the Secretary of 
Transportation; and the President of Amtrak, who also serves as 
Chairman.  49 U.S.C.  sec.  24302 (1994).  Amtrak's common stock, 
authorized by 49 U.S.C.  sec.  24304, is held by four private railroads.  
The Secretary of Transportation holds Amtrak's preferred stock, issued 
in amounts commensurate with the financial assistance provided to 
Amtrak by the United States.[3]  49 U.S.C.  sec.  24304(d).  Amtrak is a 
rail carrier, which is operated and managed as a for-profit 
corporation.  49 U.S.C.  sec.  24301(a)(1), (2).  Amtrak is not a 
department, agency, or instrumentality of the United States 
Government.  49 U.S.C.  sec.  24301(a)(3).
  
The Rail Passenger Service Act required Amtrak and existing railroads 
to assume certain labor protection responsibilities.  Sections 405(a) 
and (b) of the act required contracts between Amtrak and the railroads 
to include "fair and equitable arrangements" to protect employees 
affected by a discontinuance of passenger  service.  84 Stat. at 1337.  
Section 405(b) also required the Secretary of Labor to certify that 
such arrangements afforded railroad employees "fair and equitable 
protection."  Id.  Section 405(c) of the act made the substantive 
labor protection provisions of subsection (b) applicable to Amtrak, 
after commencement of operations in the basic system of intercity rail 
service, and contained a similar certification requirement.  Id.    

In April 1971, Amtrak tendered to all passenger railroads in the 
United States an identical contract, known as the "Basic Agreement," 
to relieve them of their obligation to provide passenger service.  
Appendix C-1 to the Basic Agreement  contained protective arrangements 
for railroad employees, which were certified by the Secretary of Labor 
as "fair and equitable."  In October 1973, the Secretary of Labor 
approved protective arrangements for Amtrak employees, which were 
designated as Appendix C-2 to the Basic Agreement.  Among other 
things, Appendices C-1 and C-2 provide 1 year of salary protection for 
each year of prior service, up to a maximum of 6 years' pay, for 
employees affected by a discontinuance of passenger rail service.[4]  
Alternatively, employees may elect to receive a one-time lump-sum 
severance payment.  

In a paper accompanying Amtrak's fiscal year 1996 grant request, 
Amtrak estimated the total maximum theoretical 6-year impact of labor 
protection obligations attributable to a discontinuance of passenger 
service at $6.9 billion.[5]  The paper also stated that if all 
employees accepted the alternative one-time lump-sum in lieu of the 
multi-year payments, the cost would be approximately $1.1 billion.

Amtrak's paper also set out Amtrak's "pre-bankruptcy obligations."  
These obligations include postretirement health care benefits for 
Amtrak retirees; obligations under various outstanding debt 
instruments for locomotives, passenger and mail cars, stations, 
highway vehicles, office facilities, and equipment; lease obligations 
for facilities such as stations and offices; casualty and 
environmental obligations; refunds to passengers and others; and other 
debts to employees, contract railroads, and vendors, among others.  
The paper did not describe these obligations in detail and we have not 
reviewed them for purposes of this opinion.  However, the paper states 
that Amtrak's obligations under various outstanding debt instruments 
have no federal guarantee.  

DISCUSSION

Liability of the United States for Labor Protection Obligations and 
Other Debts

In our 1985 opinion, we stated that the United States would not be 
liable for labor protection obligations arising from a partial or 
complete discontinuance of service.  Without repeating the detailed 
analysis, our opinion rested on essentially three premises.  First, 
the Basic Agreement is a "private operating agreement between two 
corporations," and neither the Secretary of Labor nor the United 
States were parties to the Basic Agreement or anything contained 
therein.  B-217662, supra at 4.  Second, there has been no explicit or 
implicit commitment by the United States to ensure that affected 
employees receive labor protection benefits.  Rather, by statute, 
Amtrak is not an instrumentality of the United States, and there are a 
number of cases in which courts have refused to treat Amtrak as a 
governmental entity.  Id. at 5-7.  Finally, the statutory language 
contradicts Amtrak's suggestions that the United States would be 
liable either because Amtrak incurred its labor protection obligations 
as an agent of the United States or because, as Amtrak's putative 
parent, the United States created Amtrak's labor protection 
obligations, controlled Amtrak's conduct, and left Amtrak 
insufficiently capitalized to meet those obligations.  Id. at 8-10.         

There have been no changes in statutory or decisional law that would 
undermine our 1985 opinion and lead us to alter its conclusions.  To 
the contrary, as discussed below, changes in law since 1985 only 
confirm our view that it is within the capacity of Congress to 
insulate the United States from liability for the financial and 
contractual obligations of a statutorily created entity and that 
Congress has done so with respect to Amtrak.

In 1985, on the same day as we issued our opinion, the United States 
Supreme Court addressed the nature of the agreements between Amtrak 
and the railroads.  In National Railroad Passenger Corp. v. Atchison, 
Topeka & Santa Fe Railway Co., 470 U.S. 451 (1985), the Court 
considered constitutional challenges to statutory provisions requiring 
railroads that had been relieved of their passenger service 
obligations to reimburse Amtrak for the costs of providing free and 
reduced fare service to railroad employees.  The Court held that 
neither the Rail Passenger Service Act itself nor the Basic Agreements 
were contractual obligations of the United States.  Id. at 467-71.  
The Court stated that the Basic Agreements were not contracts between 
the United States and the railroads, but rather private contracts 
between the railroads and "the non-governmental corporation, Amtrak." 
Id. at 470.  

The Supreme Court's decision thus supports our opinion that the United 
States would not be expressly liable for the labor protection 
obligations embodied in Appendices C-1 and C-2 to the Basic 
Agreements.  However, Amtrak continues to argue that the United States 
would be liable for its labor protection obligations, as well as its 
other debts, by implication.  In response to our request for its 
views, Amtrak asserts that as the putative parent and controlling 
shareholder of Amtrak, the United States likely would be liable for 
its labor protection obligations, as well as its other debts, under 
the common law principle of corporate law generally known as "piercing 
the corporate veil."[6] The essence of this argument is that the 
United States would be liable for Amtrak's obligations because 
Congress created Amtrak, required it to incur labor protection 
obligations and operate a losing business, and left it too thinly 
capitalized to meet its own obligations.

Decisions regarding statutorily created corporations make clear that 
the principles of common law applicable to private commercial entities 
advanced by Amtrak do not apply to the United States in this context.  
It is beyond dispute that courts have identified such corporations 
with the United States, and subjected the United States to liability 
for corporate transactions, where the corporations functioned as  
instrumentalities of the United States.  However, statutory provisions 
governing the entities and their operations rather than principles of 
common law provided the bases for such decisions.[7]  See, e.g., 
Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536 (1946) 
(concerning the Reconstruction Finance Corporation); Inland Waterways 
Corp. v. Young, 309 U.S. 517 (1940); Breitbeck v. United States, 500 
F.2d 556 (Ct. Cl. 1974) (concerning the Saint Lawrence Seaway 
Development Corporation); Butz Engineering Corp. v. United States, 499 
F.2d 619 (Ct. Cl. 1974) (concerning the United States Postal Service); 
National State Bank of Newark v. United States, 357 F.2d 704 (Ct. Cl. 
1966) (concerning the Federal Housing Administration); Optiperu, S.A. 
v. Overseas Private Investment Corp., 640 F. Supp. 420 (D.D.C. 1986).  
Thus, cases relying on the analogous "piercing the corporate veil" 
analysis, though legion, are materially distinguishable from Amtrak's 
situation.[8]  Amtrak does not address this distinction, but rather 
states that "it is difficult to see why the normal rules for holding 
parents liable should not be fully applicable."  In our view, this 
distinction is key to determining whether the United States would be 
liable for Amtrak's labor protection obligations and other debts or, 
in other words, whether those obligations carry the "full faith and 
credit" of the United States.

Decisions addressing "full faith and credit" questions point to the 
significance of governing statutes and suggest that the United States 
would not be liable for Amtrak's labor protection obligations and 
other debts.  Statutory language expressly pledging the credit of the 
United States is not required to create obligations of the United 
States.  See 6 Op. Off. Legal Counsel 262 (1982) and cases cited 
therein.  Rather, when Congress authorizes a federal agency or officer 
to incur obligations, those obligations are supported by the full 
faith and credit of the United States, unless the authorizing statute 
specifically provides otherwise.  Id. at 264.  

Clearly, the conclusion that particular obligations are supported by 
the credit of the United States requires a prior finding that the 
entity involved is a constituent part of the United States for 
purposes of the obligations at issue.  For example, in 68 Comp. Gen. 
14 (1988), we considered whether promissory notes and assistance 
guarantees issued by the Federal Savings and Loan Insurance 
Corporation in connection with the restructuring of failed savings and 
loan institutions were obligations of the United States backed by its 
full faith and credit.  In concluding that the promissory notes and 
assistance guarantees were obligations of the United States backed by 
its full faith and credit, we observed that the Federal Savings and 
Loan Insurance Corporation was defined by statute as a corporate 
instrumentality of the United States and that Congress had not 
disclaimed liability for its obligations.  Id. at 18.  As noted 
earlier, Amtrak's organic legislation states quite the opposite:  that 
it is not a department, agency, or instrumentality of the United 
States Government.[9]  While neither the statute nor its legislative 
history refers specifically to Amtrak's financial obligations, such a 
broad disclaimer of agency status would appear to encompass 
responsibility for financial obligations.[10]   
Further, the language in Amtrak's organic legislation suggests that, 
with respect to Amtrak, the United States has not renounced its own 
sovereign immunity so as to expose the Treasury to liability for 
Amtrak's obligations.  To the contrary, the United States has 
expressly reserved its own immunity.  In this regard, the Congress has 
the capacity to disassociate a statutorily created entity from the 
United States.  In Butz Engineering Corp. v. United States, supra, the 
Court of Claims held that a contractor could sue the United States 
under the Tucker Act on a Postal Service contract.  In concluding that 
the Postal Service was an instrumentality of the United States for 
whose actions the United States had renounced its own sovereign 
immunity, the court focused on several provisions in the Postal 
Service's organic legislation.  Id. at 624-6.  Among other things, the 
court emphasized that its organic legislation defined the Postal 
Service as "an independent establishment of the executive branch of 
the Government of the United States" (emphasis in original).  Id. at 
624.  However, the Court also went on to state that:

        "Congress has shown it is capable of unequivocally cleaving a 
        public service or corporation from all governmental nexus when 
        it so desires.  In establishing the Securities Investors 
        Protection Corporation, for instance, the legislature bluntly 
        directed that the corporation 'shall not be an agency or 
        establishment of the United States Government * * *.'"

Id.  See also T.O.F.C. v. United States, 683 F.2d 389, 393 (Ct. Cl. 
1982) and Consolidated Rail Corp. v. Metro-North Commuter Railroad 
Co., 638 F. Supp. 350 (Regional Rail Reorg. Ct. 1986) (both 
emphasizing similar statutory language to find that the actions of 
Conrail could not be imputed to the United States).  

Courts have repeatedly relied upon the explicit disclaimer of agency 
status in Amtrak's organic legislation to address assertions that 
Amtrak should be identified with the United States.  For example, 
quoting the above cited language from Butz, the Court of Claims 
dismissed an action in which the plaintiff sought to impute the 
allegedly improper actions of Amtrak to the United States.  Green v. 
United States, 229 Ct. Cl. 812, 814 (1982).  See also Hrubec v. 
National Railroad Passenger Corp., 49 F.3d 1269 (7th Cir. 1995) 
(holding that Amtrak's employees are not employees of the United 
States); Ehm v. National Railroad Passenger Corp., 732 F.2d 1250 (5th 
Cir. 1984) (holding that Amtrak is not subject to the Privacy Act); 
National Railroad Passenger Corp. v. Commonwealth of Pennsylvania 
Public Utility Commission, No. 86-5357, 1997 U.S. Dist. WESTLAW 597963 
(E.D. Pa. Sept. 15, 1997) (holding that Amtrak is not a federal entity 
for purposes of state sovereign immunity under the Eleventh 
Amendment);[11]  Riddle v. National Railroad Passenger Corp., 831 F. 
Supp. 442 (E.D. Pa. 1993) (holding that the doctrine of qualified 
immunity is not applicable to Amtrak in a suit alleging negligence by 
its statutorily created Office of Inspector General); Held v. National 
Railroad Passenger Corp., 101 F.R.D. 420 (D.D.C. 1984) (holding that 
Amtrak is not a government-controlled corporation for purposes of the 
Age Discrimination in Employment Act); Sentner v. Amtrak, 540 F. Supp. 
557 (D.N.J. 1982) (holding that Amtrak, unlike a federal agency, may 
be subject to liability for punitive damages).  We find nothing in 
these decisions to support Amtrak's claim that the statutory 
disclaimer would be effective with respect to ordinary business 
transactions, but of no legal effect in the event of bankruptcy.[12]  

In 1995, the Supreme Court addressed the limits of the disclaimer of 
agency status in Amtrak's organic legislation.  In Lebron v. National 
Railroad Passenger Corp., 513 U.S. 374 (1995), the Court considered a 
claim that Amtrak's refusal to display a political advertisement on a 
billboard in Pennsylvania Station violated the petitioner's First 
Amendment rights.  Responding to the argument that the statutory 
language regarding Amtrak's non-agency status was dispositive, the 
Court stated that if Amtrak is what the Constitution regards as the 
Government, a congressional pronouncement to the contrary could not 
relieve it of the restrictions of the First Amendment.  Id. at 392.  
The Court held that where, as in the case of Amtrak, "the Government 
creates a corporation by special law, for the furtherance of 
governmental objectives, and retains for itself permanent authority to 
appoint a majority of the directors of that corporation, the 
corporation is part of the Government for purposes of the First 
Amendment."  Id. at 400.

While holding that the statutory provision regarding Amtrak's status 
was not dispositive for purposes of the First Amendment, the Court 
stated that it would be dispositive for purposes of Amtrak's financial 
and contractual obligations.  The Court stated that the provision:

        ". . . is assuredly dispositive of Amtrak's status as a 
        Government entity for purposes of matters that are within 
        Congress' control--for example whether it is subject to 
        statutes that impose obligations or confer powers upon 
        Government entities, . . ..  And even beyond that, we think 
        [section 24301] can suffice to deprive Amtrak of all those 
        inherent powers and immunities of Government agencies that it 
        is within the power of Congress to eliminate.  We have no 
        doubt, for example, that the statutory disavowal of Amtrak's 
        agency status deprives Amtrak of sovereign immunity from suit 
        . . ., and of the ordinarily presumed power of Government 
        agencies authorized to incur obligations to pledge the credit 
        of the United States . . .."

Id. at 392.  In addition, commenting on its earlier decision in 
National Railroad Passenger Corp. v. Atchison, Topeka, and Santa Fe 
Railway Co., the Court stated that:

        "for the purpose at hand in Atchison it was quite proper for 
        the Court to treat Congress's assertion of Amtrak's 
        nongovernmental status in [section 24301] as conclusive. . . . 
        [E]ven if Amtrak is a Government entity, [section 24301's] 
        disavowal of that status certainly suffices to disable that 
        agency from incurring contractual obligations on behalf of the 
        United States" (emphasis in original).

Id. at 394.

The Court's discussion, coupled with the statute and pertinent case 
law, supports our view that Congress can insulate the United States 
from liability for obligations of a statutorily created corporate 
entity and that Congress has in fact done so with respect to Amtrak.    

Amtrak asserts that the Court's comments as to the liability of the 
United States for Amtrak's financial obligations "cannot be stretched 
to dispose of the possibility of liability of the United States in the 
context of an Amtrak bankruptcy."  Amtrak states that 49 U.S.C.  sec.  
24301(a) "is best read as making it clear that . . . the United States 
would not be liable for [Amtrak's] debts merely because it was created 
by statute" and that the provision did not exempt "the United 
States-Amtrak relationship from the entire body of common law on the 
subject of parents and subsidiaries."     

We acknowledge that the Court did not specifically address the 
prospect of an Amtrak bankruptcy.  However, it did not restrict its 
discussion of Amtrak's financial and contractual obligations to those 
arising in the ordinary course of business.  Further, as discussed 
above, we are not aware of any basis in the statute, its legislative 
history, or pertinent case law for so limiting the disclaimer in 
Amtrak's organic legislation.  

With respect to labor protection, Amtrak also states that the loss of 
the economic benefit of labor protection must be evaluated as a taking 
without just compensation in violation of the Fifth Amendment.  Amtrak 
constructs a "takings" argument from the 1972 amendment to section 305 
of the Rail Passenger Service Act.  Under section 305, as enacted, 
freight railroads were extensively involved in passenger service and 
would have borne primary responsibility under Appendix C-1 for labor 
protection payments to employees.  In 1972, section 305 was amended to 
require Amtrak, to "directly operate and control all aspects of its 
rail passenger service" insofar as practicable.  See 86 Stat. at 228.  
Amtrak asserts that, as a result of the 1972 amendment, the "labor 
protections that [employees] once enjoyed [were] over the course of 
about fifteen years transformed from valuable rights against solvent 
freight railroads to claims in a potential Amtrak liquidation, which 
would presumably be worthless unless paid by the United States."  
Amtrak raises the question whether the United States may so shift the 
labor protection obligation and then "reject responsibility for that 
obligation to the individuals affected."

This argument assumes that the United States had accepted 
responsibility for the labor protection obligations at issue and 
relies on an underlying assumption that Amtrak and the United States 
are one for purposes of Amtrak's financial obligations, such that 
those obligations are attributable to the United States.  The Court's 
decision in Lebron does not support Amtrak's assumption.  To the 
contrary, the decision draws a sharp distinction between Amtrak's 
financial and contractual obligations and its obligations under the 
First Amendment.  In light of the Court's distinction, we do not 
presume that such obligations would be the source of a constitutional 
injury and, therefore, liability on the part of the United States.

As we understand Amtrak's argument, a "taking" may occur upon Amtrak's 
demise since the economic benefit of labor protection is not the same 
as it would have been had Congress maintained the freight railroads' 
involvement in passenger service.  However, benefits from freight 
railroads would have been subject to the same constraints as those 
from Amtrak.  Under section 405(c) of the Rail Passenger Service Act, 
as amended in 1972, Amtrak was required to provide its employees with 
the same degree of protection as the freight railroads.  In addition, 
the procedural requirements associated with Appendix C-1, i.e., 
certification by the Secretary of Labor, were also applicable to 
Appendix C-2.  Moreover, recoveries from the freight railroads, like 
those from Amtrak, would have been limited by the railroads' capacity 
to provide such benefits under the circumstances.[13]  

In support of its position, Amtrak cites Duke Power Co. v. Carolina 
Environmental Study Group, 438 U.S. 59 (1978).  In Duke Power, the 
Court upheld the constitutionality of the Price-Anderson Act, which 
replaced common law remedies for the destruction of property in 
connection with a nuclear accident with a statutory guarantee of 
compensation capped at $560 million, plus a commitment to take 
"whatever action is deemed necessary and appropriate."  Id. at 66-7.  
The Court did not address the plaintiff's "takings" argument because 
of the availability of the Tucker Act remedy, presumably to recover 
such additional amounts.[14]  Rather, the Court noted that "the 
question of whether a taking claim could be established under the 
Fifth Amendment is a matter appropriately left for another day."  Id. 
at 94, n. 39.  
Amtrak seems to suggest that a court could determine that Congress 
implicitly made an analogous promise with respect to Amtrak's labor 
protection obligations, and, as in Duke Power, the Tucker Act or other 
remedy for a taking would be available to Amtrak employees.  As 
discussed at length above and in our 1985 opinion, there simply is no 
explicit or implicit guarantee here.  Further, we question whether the 
1972 legislation could lead to a "taking" on the ground that it 
interfered with employees' settled expectations of recovery under 
Appendix C-1.  While contracts may create rights of property, the fact 
that legislation disregards or destroys such rights, and the 
associated expectations, does not always transform the legislation 
into a taking.  Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240 
(1935); Omnia Commercial Co., Inc. v. United States, 261 U.S. 502 
(1923).  Rather, the fact that legislation nullifies a contractual 
provision does not justify a holding that the legislation violates the 
Taking Clause where the United States has appropriated nothing for its 
own use.  Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211 
(1986) (upholding the statutory nullification of contractual 
provisions limiting an employer's liability upon withdrawal from a 
multi-employer pension plan);[15] see also United Transportation Union 
v. Consolidated Rail Corp., 535 F. Supp. 697 (Regional Rail Reorg. Ct. 
1982) (upholding statutory provisions for the elimination of excess 
positions that superseded provisions in collective bargaining 
agreements).  Even if it were true that the 1972 amendment to the Rail 
Passenger Service Act indirectly interfered with employees' ability to 
receive labor protection benefits, the United States did not 
appropriate anything for its own use.

Modification of Labor Protection Arrangements for Amtrak Employees

In our 1985 opinion, we also concluded that, without legislation, 
Amtrak and its employees could not agree to modify existing labor 
protection arrangements.  We based our conclusion largely on the 
statutory provisions under which Amtrak's labor protection 
arrangements were put in place.  B-217662 at 16-17.

Section 24706(c) of title 49, United States Code, which governs 
protective arrangements for Amtrak or railroad employees affected by a 
discontinuance of passenger service, does not explicitly bar Amtrak 
and its employees from renegotiating such arrangements.  Rather, it 
merely establishes the minimum requirements for such arrangements and 
identifies certain modifications to service that would not trigger 
labor protection benefits.

However, the text and subsequent amendments to this statutory 
provision suggest that Amtrak and its employees would not be 
authorized to renegotiate the labor protection arrangements embodied 
in Appendix C-2.  As enacted, section 405(a) of the Rail Passenger 
Service Act required railroads "to provide fair and equitable 
arrangements to protect the interests of employees affected by 
discontinuances of intercity rail passenger service."  84 Stat. at 
1337.  Section 405(b) set out the substantive requirements of such 
labor protection arrangements and made certification by the Secretary 
of Labor a prerequisite to the execution of contracts between Amtrak 
and the railroads.  Id.  Section 405(c) made the substantive 
requirements of section 405(b) applicable to Amtrak "after 
commencement of operations in the basic system."  Id.  With respect to 
Amtrak, section 405(c) also provided that "[t]he certification by the 
Secretary of Labor that employees affected have been provided fair and 
equitable protection as required by this section shall be a condition 
to the completion of any transaction requiring such protection" 
(emphasis added).  Id.  Thus, it could be argued that, as enacted, 
section 405(c) would have permitted Amtrak and its employees to 
negotiate labor protection arrangements on a 
transaction-by-transaction basis.

Any doubt in this area was resolved when section 405(c) was amended in 
1972.  Among other things, Public Law 92-316 amended the last sentence 
of section 405(c) to read as follows:  

        "[t]he Secretary of Labor shall certify that affected 
        employees of the Corporation have been provided fair and 
        equitable protection as required by this section within one 
        hundred and eighty days after assumption of operations by the 
        Corporation."

86 Stat. at 230.  Explaining the amendment, the Senate Commerce 
Committee stated that: 

        "[t]he second sentence of amended subsection 405(c) makes 
        clear first that the Secretary of Labor must certify that 
        'fair and equitable' arrangements have been provided for.  
        Second it requires that such certification be issued by a 
        certain point in time, namely '180 days after assumption of 
        operations' by Amtrak."  

S. Rep. No. 92-756, at 11 (1972), reprinted in 1972 U.S.C.C.A.N. 2393, 
2399.

The 1972 amendment thus established a procedure for the implementation 
of labor protection arrangements for Amtrak employees, namely, a 
single certification at a specific point in time.  It would be 
impossible for this procedure to be followed at present.  Therefore, 
we believe that Amtrak and its employees would not be free to 
renegotiate those labor protection arrangements.  See Botany Worsted 
Mills v. United States, 278 U.S. 282, 289 (1929) (holding that 
statutory procedures for the compromise of tax claims were exclusive 
because "when a statute limits a thing to be done in a particular 
mode, it includes the negative of any other mode").[16]

Amtrak agrees with our view that any modification of the presently 
certified labor protection arrangement would require legislation.  
Amtrak also points out that, notwithstanding the matter of 
certification, unions would be unable to waive their statutory 
entitlement to at least four years of labor protection.  In support of 
its assertion, Amtrak cites Norfolk and Western Railway Co. v. Nemitz, 
404 U.S. 37 (1971), in which the Supreme Court held that a union could 
not bargain away the statutorily mandated labor protection afforded to 
employees under the Interstate Commerce Act.  We have no basis to 
disagree with Amtrak's observation.
    
Amtrak's Authority to Contract Out 

Section 24312(b)(1) of title 49, United States Code states that Amtrak 
"may not contract out work normally performed by an employee in a 
bargaining unit covered by a contract between a labor organization and 
Amtrak or a rail carrier that provided intercity rail passenger 
transportation on October 30, 1970, if contracting out results in the 
layoff of an employee in the bargaining unit."  Section 24312(b)(2) 
provides that the prohibition contained in subsection (b)(1) does not 
apply to food and beverage services provided on Amtrak trains.  On its 
face, section 24312(b) restricts Amtrak's authority to contract out 
for services.[17]  
Amtrak agrees with our conclusion and points out that, like the 
statutory labor protection provisions, the statutory prohibition on 
contracting out is not the type of statutory right that could be 
waived by Amtrak's unions since it represents a public policy of 
providing protection to employees.  

Sincerely yours,

Robert P. Murphy
General Counsel

bcc: Mr. Fitzgerald, OGC/RCED
     Mr. Volpe, OGC/RCED
     Ms. Desaulniers, OGC/RCED
     Mr. Belkin, OGC/GGD
     Mr. Centola, OGC/AIMD
     Ms. Scheinberg, RCED
     Mr. Ratzenberger, RCED
     Mr. Jorgenson, RCED
     Ms. Ruchala, RCED
     Ms. Fleming, RCED
     Ms. Scott, OCR
     OGC/RCED

DIGESTS
B-277814
October 20, 1997

1.  The United States would not be legally liable for the labor 
protection obligations that would result from the partial or complete 
discontinuance of intercity rail passenger service by the National 
Railroad Passenger Corporation (amtrak) since the United States was 
not a part to the agreement giving rise to such obligations and has 
not explicitly or implicitly guaranteed such obligations.  To the 
contrary, Amtrak's organic legislation provides that it is not a 
department, agency, or instrumentality of the United States 
Government.  For similar reasons, the United States would not be 
liable for Amtrak's other debts in the event of an Amtrak bankruptcy.

2.  The labor and management of the National Railroad Passenger 
Corporation (Amtrak) would not be authorized to renegotiate the terms 
of labor protection arrangements known as "Appendix C-2" in the 
absence of legislation.

3.  The labor and management of the National Railroad Passenger 
Corporation (Amtrak) could not agree to alter the current restriction 
on Amtrak's contracting out of non-food service work contained at 49 
U.S.C.  sec.  24312(b).

1. Because consideration of Amtrak's labor protection obligations and 
other debts requires similar analysis, we consider the two issues 
together in the discussion that follows.

2. One of the three appointees subject to Senate confirmation must be 
from a list of individuals recommended by the Railway Labor Executives 
Association, one must be from among the Governors of States with an 
interest in rail transportation, and one must be a representative of 
business with an interest in rail transportation.  49 U.S.C.  sec.  
24302(a)(1)(C)(i)-(iii).  The two directors not subject to Senate 
confirmation are selected from a list of names submitted by commuter 
rail authorities.  49 U.S.C.  sec.  24302(a)(1)(D).

3. Amtrak receives operating and capital grants administered by the 
Federal Railroad Administration (FRA).  Amounts for these grants are 
provided in the annual appropriation for the Department of 
Transportation and Related Agencies.  See, e.g., Pub. L. No. 104-205, 
110 Stat. 2951, 2963 (1996).

4. Section 405(b) of the act required the arrangements for railroad 
and Amtrak employees to include provisions that were at least as 
protective as those established pursuant to section 5(2)(f) of the 
Interstate Commerce Act.  Id.  The minimum level of labor protection 
under section 5(2)(f) was 4 years of salary protection.  See 49 U.S.C.  sec.  
5(2)(f) (1970). 

5. Amtrak is in the process of revising this information using 1997 
data.

6. Under this principle, those who engage in improper conduct 
amounting to an abuse of the corporate form lose the presumption of 
separateness that would ordinarily protect parent corporations from 
liability for the acts of their subsidiaries.  A finding of fraud is 
not required for a parent corporation to lose the protection from 
liability associated with the corporate form; inadequate 
capitalization of the subsidiary has been an important factor.  
Anderson v. Abbott, 321 U.S. 349, 362 (1944).  However, the decision 
to "pierce the corporate veil" may not rest on a single factor.  
DeWitt Truck Brokers v. W. Ray Flemming Fruit Co., 540 F.2d 681, 687 
(4th Cir. 1976).  Among the factors that courts have considered 
significant are (1) gross undercapitalization for the purposes of the 
corporate undertaking, (2) failure to observe corporate formalities, 
(3) non-payment of dividends, (4) the insolvency of the debtor 
corporation at the time, (5) siphoning of funds of the corporation by 
the dominant stockholder, (6) non-functioning of other officers or 
directors, (7) absence of corporate records, and (8) the fact that the 
corporation is merely a facade for the operations of the dominant 
stockholder or stockholders.  Id. at 685-7.  

7. In contrast to Amtrak, none of the entities in these cases were 
disassociated from the United States by statute.

8. This analytical distinction reflects the fundamentally different 
functions of private corporations and Congress.  Private corporations 
conduct activities designed to increase profits for the benefit of 
investors.  Congress passes legislation designed to effect particular 
public policies subject to the constraints of the Constitution.  

9. As enacted, section 301 of the Rail Passenger Service Act provided 
that Amtrak "will not be an agency or establishment of the United 
States Government."  84 Stat. at 1330.  In 1988, section 301 was 
amended to provide that Amtrak "will not be an agency, 
instrumentality, authority, entity, or establishment of the United 
States Government."  See Pub. L. No. 100-342,  sec.  18, 102 Stat. 624, 636 
(1988).  Explaining his amendment, which added only the word 
"instrumentality" to section 301, Senator Hollings stated that he 
wanted to "make clear" that Amtrak was not an instrumentality of the 
Federal Government for purposes of Internal Revenue Code provisions on 
tax exempt bonds.  See 133 Cong. Rec. S3119 (daily ed. Nov. 5, 1987).  
The words "authority" and "entity" were apparently added in 
Conference.  See H.R. Conf. Rep. No. 100-637, at 28 (1988), reprinted 
in 1988 U.S.C.C.A.N. 708, 717.  The provision was simplified in 
connection with the 1994 recodification of the Rail Passenger Service 
Act.  See 49 U.S.C.  sec.  24301 nt. 

10. Of course, the United States may expressly guarantee otherwise 
private obligations.  For example, as we pointed out in our 1985 
opinion, section 602 of the Rail Passenger Service Act authorized the 
Secretary of Transportation to guarantee certain loans made to Amtrak.  
84 Stat. at 1338.  As added in 1972, section 602(b) provided that such 
guarantees were backed by the full faith and credit of the United 
States.  Pub. L. No. 92-316  sec.  10(a), 86 Stat. 227, 232 (1972).  
Section 602 was repealed in 1992.  See Pub. L. No. 102-533  sec.  7(c), 106 
Stat. 3515, 3519 (1992).    

11. Summarizing the statutory provisions exempting Amtrak from state 
and local taxes and other fees, the Court stated that "it is probable 
that Congress intended Amtrak not to be an agency, entity or 
instrumentality of the United States government for the purposes of 
extending those privileges and immunities which are only available to 
the United States, except where Congress explicitly stated that Amtrak 
should be so treated."  Id. at *5-6.

12. We recognize that in several cases concerning the 
constitutionality of personnel actions, courts considered whether the 
ties between Amtrak and the United States were sufficient to render 
Amtrak a "government actor" and concluded that they were not.  See 
Anderson v. National Railroad Passenger Corp., 754 F.2d 202 (7th Cir. 
1985); Wilson v. Amtrak National Railroad Corp., 824 F. Supp. 55 (D. 
Md. 1992); Marcucci v. National Railroad Passenger Corp., 589 F. Supp. 
725 (N.D. Ill. 1984).  The purpose of the analyses in these cases was 
to determine whether the actions of an ostensibly private entity gave 
rise to a constitutional injury, not to assign liability for a 
pre-existing injury or obligation.  

13. A number of railroads confronted bankruptcy in the 1970s.  We 
understand that, in at least one case, involving the Rock Island and 
Pacific Railroad Co., no labor protection was paid.  In 1982, the 
Supreme Court struck down a provision of the Rock Island Transition 
and Employee Assistance Act that provided benefits to certain 
employees on the grounds that the provision violated the bankruptcy 
clause of the Constitution.  See Railway Labor Executives' Ass'n v. 
Gibbons, 455 U.S. 457 (1982).   

14. One commentator has suggested that, while the Court repeatedly 
emphasized the fact that Congress had expressly committed itself to 
taking further action, "the constitutionality of the [statute] cannot 
possibly turn on a Congressional promise to 'make everything all 
right' in the event of a nuclear disaster, for such a pledge would not 
be binding on a subsequent Congress."  Lawrence H. Tribe, American 
Constitutional Law 610-612 (1988). 

15. Citing Penn Central Transportation Co. v. New York City, 438 U.S. 
104 (1978), the Court emphasized that the interference at issue could 
not be characterized as a physical invasion or appropriation, but 
rather one arising from a public program adjusting the benefits and 
burdens of economic life to promote the common good.  The Court 
reinforced its view that the statute did not constitute a compensable 
taking by examining two additional factors identified in Penn Central:  
the economic impact of the regulation on the claimant and the extent 
to which the regulation interfered with distinct investment-backed 
expectations.  475 U.S. at 225.  The Court declined to find a 
compensable taking notwithstanding the fact that the statute 
"completely deprived the employer of whatever amount of money it [was] 
obligated to pay to fulfill its statutory liability."  Further, with 
respect to the argument that the statute interfered with the 
employers' reasonable expectations, the Court noted the long time 
legislative concern with pension plans.  Id. at 225-7.

16. In the 1994 recodification of the Rail Passenger Service Act, the 
provision requiring the Secretary of Labor's certification of labor 
protection arrangements for Amtrak employees was omitted as executed.  
See 49 U.S.C.  sec.  24706 nt.  Given the context of this amendment, we do 
not view it as a substantive change.  Accordingly, it provides us with 
no basis for concluding that Amtrak and its employees would be free to 
renegotiate the labor protection arrangements contained in Appendix 
C-2. 

17. The report of the House Judiciary Committee accompanying Public 
Law 103-272, which recodified the provision on contracting out, states 
that "[t]he words 'may not' are used in a prohibitory sense, as 'is 
not authorized to' and 'is not permitted to.'"  H.R. Rep. No. 103-180, 
at 4 (1994), reprinted in 1994 U.S.C.C.A.N. 818, 821.