Union Pac. R.R. Co. v. Surface Transp. Bd.
| Citation | 863 F.3d 816 |
| Decision Date | 12 July 2017 |
| Docket Number | No. 16-3307, No. 16-3513, No. 16-3512, No. 16-3504, No. 16-3514,16-3307 |
| Parties | UNION PACIFIC RAILROAD COMPANY, Petitioner Association of American Railroads, Intervenor v. Surface Transportation Board; United States of America, Respondents National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio ; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association ; Southern Rail Commission; Virginians for High Speed Rail, Intervenors Chamber of Commerce of the United States of America; Professor Neomi Rao, Amici on Behalf of Petitioner United States Conference of Mayors, Amicus on Behalf of Respondent Association of American Railroads, Petitioner v. Surface Transportation Board; United States of America, Respondents National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio ; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association ; Southern Rail Commission; Virginians for High Speed Rail, Intervenors United States Conference of Mayors, Amicus on Behalf of Respondent Chamber of Commerce of the United States of America; Professor Neomi Rao, Amici on Behalf of Petitioner CSX Transportation, Petitioner Association of American Railroads, Intervenor v. Surface Transportation Board; United States of America, Respondents National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio ; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association ; Southern Rail Commission; Virginians for High Speed Rail, Intervenors Chamber of Commerce of the United States of America, Amicus on Behalf of Petitioner United States Conference of Mayors, Amicus on Behalf of Respondent Professor Neomi Rao, Amicus on Behalf of Petitioner Norfolk Southern Railway Company, Petitioner Association of American Railroads, Intervenor v. Surface Transportation Board; United States of America, Respondents National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio ; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association ; Southern Rail Commission; Virginians for High Speed Rail, Intervenors Chamber of Commerce of the United States of America, Amicus on Behalf of Petitioner United States Conference of Mayors, Amicus on Behalf of Respondent Professor Neomi Rao, Amicus on Behalf of Petitioner Canadian National Railway Company; Illinois Central Railroad Company; Grand Trunk Western Railroad Company, Petitioners Association of American Railroads, Intervenor v. Surface Transportation Board; United States of America, Respondents National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio ; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association ; Southern Rail Commission; Virginians for High Speed Rail, Intervenors Chamber of Commerce of the United States of America, Amicus on Behalf of Petitioner United States Conference of Mayors, Amicus on Behalf of Respondent Professor Neomi Rao, Amicus on Behalf of Petitioner |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Counsel who presented argument on behalf of the petitioners was Thomas H. Dupree, Jr., of Washington, DC. The following attorney(s) appeared on the joint brief of petitioners. For Union Pacific Railroad Co.; Rebecca Gregory, John J. Brennan, Louise Anne Rinn of Omaha, NE., for CSX Transportation, Inc. Peter J. Shudtz, Paul R. Hitchcock, Cindy Craig Johnson, Sean M. Craig of Jacksonville, FL., for Canadian National Railway Co., et al. Paul A. Cunningham, David A. Hirsh, Simon A. Steel, Theodore K. Kalick of Washington, DC., for Association of American Railroads Michael K. Murphy, David Fotouhi, David A. Schnitzer, Kathryn D. Kirmayer, Daniel Saphire, Timothy J. Strafford of Washington, DC. for Norfolk Southern Railway Co. Joseph R. Palmore, David L. Meyer, James A. Hixon, John M. Scheib, Greg E. Summy, Garrett D. Urban, of Norfolk, VA., James R. Sigel of San Francisco, CA.
Counsel who presented argument on behalf of the respondents was Theodore Leonard Hunt, of Washington, DC. The following attorney(s) appeared on the brief, Jeffrey D. Komarow of Washington, DC.
Counsel who presented argument on behalf of the intervenor National Railroad Passenger Corporation was Kelly P. Dunbar of Washington, DC. The following attorney(s) appeared on the brief; David W. Ogden, Ari Holtzblatt, Jonathan Edward Paikin, Derek Woodman, of Washington, DC.
The following attorney(s) appeared on the intervenors brief of the Southern Rail Commission, et al., Gordon P. MacDougal of Washington, DC., Karen E. Torrent, of Chicago, IL.
The following attorney(s) appeared on the amicus brief of Chamber of Commerce of the United States of America; Patrick N. Strawbridge, of Boston, MA., Steven P. Lehotsky, Kathryn L. Comerford Todd, of Washington, DC., Michael H. Park, of New York, NY.
The following attorney(s) appeared on the amicus brief of Professor Neomi Rao; John Michael Connolly, Thomas R. McCarthy, of Arlington, VA.
The following attorney(s) appeared on the amicus brief United Counsel of Mayors, Gregory Rodriguez of Washington, DC.
Before SMITH,1 BENTON and SHEPHERD, Circuit Judges.
When Congress expressly delegates rulemaking authority in a regulatory sphere to one agency, and that delegation is declared unconstitutional, may a different agency provide regulatory guidance in the same sphere on its own initiative? The Surface Transportation Board ("Board") said yes—and on that basis it promulgated a rule defining "on-time performance" under the Passenger Rail Investment and Improvement Act of 2008 after the Act's delegation to another agency was invalidated. Now the Board argues that the Act itself allows the Board to promulgate on-time performance standards. Because the Board's interpretation contradicts the Act's plain language, we grant these consolidated petitions and hold that the Board exceeded its authority.
The National Railroad Passenger Corporation ("Amtrak") and freight railroad companies share the nation's railways. Congress created Amtrak as a passenger railroad in 1970. Dep't of Transp. v. Assoc. of Am. R.Rs. , ––– U.S. ––––, 135 S.Ct. 1225, 1228, 191 L.Ed.2d 153 (2015). Amtrak relieved freight railroads of their common-carrier obligation to offer passenger service, and in exchange it received the right to use freight-railroad tracks and facilities at rates set by agreement or by the Interstate Commerce Commission, a now-defunct agency. Id. at 1229. Congress later granted Amtrak a statutory preference over freight railroads on shared track. Id. But in 2008, the Department of Transportation's Inspector General reported that this preference right was weak. Office of Inspector Gen., Fed. R.R. Admin., CR-2008-076, Root Causes of Amtrak Train Delays 4 (2008). He noted that freight railroads could "adjust their dispatching practices" to give their own trains an advantage over Amtrak. Id.
To address this situation, Congress enacted the Passenger Rail Investment and Improvement Act of 2008, Pub. L. No. 110-432, 122 Stat. 4907 (PRIIA). Two sections of the Act are relevant here. The first, § 207(a), instructs the Federal Railroad Administration (FRA) and Amtrak, jointly and in consultation with other groups, to "develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services." Id. § 207(a) (codified at 49 U.S.C. § 24101 (note) ). These metrics must include "measures of on-time performance and delays incurred by intercity passenger trains on the rail lines of each rail carrier."Id.
The metrics and standards have at least four uses: (1) they are the basis for quarterly reports published by the FRA, id. § 207(b); (2) they are the basis for an annual evaluation by Amtrak, id. § 210(a) (codified at 49 U.S.C. § 24710 ); (3) they are a benchmark for a performance improvement plan to be developed by Amtrak, id. ; and (4) at least some of the metrics and standards trigger Board investigations into freight railroads' compliance with Amtrak's statutory preference right, id. § 213(a) (codified at 49 U.S.C. § 24308(f) ).
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