Burlington Northern R. Co. v. Surface Transp. Bd.
Citation | 75 F.3d 685 |
Decision Date | 09 February 1996 |
Docket Number | No. 94-1622,94-1622 |
Parties | BURLINGTON NORTHERN RAILROAD COMPANY, Petitioner, v. SURFACE TRANSPORTATION BOARD and the United States of America, Respondents. West Texas Utilities Company, Intervenor. |
Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
On Petition for Review of an Order of the Interstate Commerce Commission.
Samuel M. Sipe, Jr., with whom John D. Graubert, Washington, DC and Michael E. Roper, Fort Worth, TX, were on the briefs, argued the cause for petitioner.
Henri F. Rush, General Counsel, Surface Transportation Board, with whom Craig M. Keats, Associate General Counsel, and Judith A. Albert, Attorney, Surface Transportation Board, and Anne K. Bingaman, Assistant Attorney General, John J. Powers, III, and John P. Fonte, Attorneys, United States Department of Justice, Washington, DC, were on the brief, argued the cause for respondents.
Kelvin J. Dowd, Frank J. Pergolizzi, and Andrew B. Kolesar, III were on the brief for intervenor West Texas Utilities Company. Donald G. Avery and William L. Slover, Washington, DC, entered appearances.
Before: BUCKLEY, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
Petitioner Burlington Northern transports coal from the Powder River Basin in Wyoming to the Oklaunion generating station in Texas for a coal-burning electric utility, West Texas Utilities Company ("WTU"), an intervenor in these proceedings. WTU's coal moved under contract with Burlington from 1986, when the Oklaunion generating station began operating, until 1995, when the contract between the parties expired. Contract transport is an alternative to traditional common carrier rail transport; once the responsible agency--currently the Surface Transportation Board, which replaced the Interstate Commerce Commission under the recently-enacted ICC Termination Act of 1995 ("Termination Act"), Pub.L. No. 104-88, 109 Stat. 803, and previously the Commission itself--has passed on a contract, transportation proceeds under its terms, free from agency oversight. See 49 U.S.C. §§ 10701a, 10702 (1995), amended by Termination Act § 102(a), 109 Stat. at 809-10 ( )(requiring rail carriers to establish rates and providing for agency oversight of reasonableness of rates); id. § 10713(c), (h) & (i)(1), amended by Termination Act § 102(a), 109 Stat. at 817-18 ( )( terms of agency review of contracts and exempting contract transport from general agency oversight). The present case poses a question at the cusp of the contract and common carrier forms of service: Where all parties assumed that Burlington would provide common carrier service if it and WTU proved unable to agree on a contract to replace their existing agreement, could the Commission, more than a year before contract service was expected to end, order the carrier to file a tariff for common carrier service?
Burlington's contract with WTU was set to expire on December 31, 1996, or, in the event of certain contingencies not specified in the record, as early as late 1995. 1 The parties informed us after oral argument that the contract in fact expired in the fall of 1995, at which time service began on a common carrier basis. More than a year earlier, however, WTU filed a complaint asking the Commission to order Burlington to publish a "just and reasonable" rate for future common carrier transport on the route. The Commission did so in August 1994, telling Burlington to file a tariff by September 23, 1994. West Texas Utilities Co., Docket No. 41191 (served Aug. 24, 1994) (the "August Decision"). Burlington sought a stay, which the Commission granted pending its own decision on the matter, and then denied in a decision served October 14, 1994 (the "October Decision"). Burlington filed the required tariff following the October Decision, and the Commission began a proceeding to review whether the proposed rate was just and reasonable. Burlington now seeks review of the Commission's August Decision. Because the Surface Transportation Board has succeeded the Commission as the regulatory authority responsible for oversight of rail carriers, the Board, not the Commission, is the respondent here. See Termination Act § 204(c)(1), 109 Stat. at 942.
The threshold issue before us is whether either the expiration of the Burlington-WTU contract or the passage of the Termination Act moots the case. We conclude that neither event has this effect. We also reject the Board's and WTU's argument that the tariff filing order is not subject to review because it is not a final order or, alternatively, is not ripe for review. On the merits, the Board and WTU argue that the order should be upheld as an exercise of the Commission's authority under former 49 U.S.C. § 10762 to require a common carrier to file a tariff for rates on service it "may provide." 49 U.S.C. § 10762(a)(1) (1995), repealed by Termination Act § 102(a), 109 Stat. at 804-52. We disagree and therefore reverse the Commission's decision.
Article III confines federal courts to the resolution of actual cases or controversies, and thus prevents their passing on moot questions--ones where intervening events make it impossible to grant the prevailing party effective relief. Church of Scientology v. United States, 506 U.S. 9, 11, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992). Either the expiration of the Burlington-WTU contract or adoption of the Termination Act might have that effect. The expiration of the contract might do so because, as Burlington concedes, it placed Burlington under an immediate and ongoing obligation to provide service to WTU on a common carrier basis, so that invalidation of the disputed tariff might not improve Burlington's position in any way. 2 The Termination Act might thwart effective relief for either of two reasons. First, it abolishes the tariff filing requirement contained in former 49 U.S.C. § 10762, under which the Commission issued the disputed order. See Termination Act § 102(a), 109 Stat. at 804-52; August Decision at 1 n. 5; but see 49 U.S.C. § 10702(a) (1995), amended by Termination Act § 102(a), 109 Stat. at 810 ( )(continuing separate requirement that a rail carrier subject to the jurisdiction of the Board "establish ... rates ... for transportation and service it may provide"). Second, the Termination Act provides that "[a]ll orders ... that have been issued ... by the Interstate Commerce Commission ... in the performance of any function that is transferred by this Act ... shall continue in effect according to their terms...." Termination Act § 204(a), 109 Stat. at 941 (emphasis added). If, as seems possible, the disputed order was not entered into "in the performance of" a function retained by the Act (in light of the Act's abolition of the tariff filing requirement), then the order will not "continue in effect" under the Act. In this circumstance, our invalidation of the compulsory tariff would not afford Burlington any relief not already granted by the Act itself. 3
We need not decide the impact of these events on our ability to grant meaningful relief, however, because the situation before us falls into the category of cases "capable of repetition, yet evading review," and hence independently satisfies Article III's case-or-controversy requirement. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see also Doe v. Sullivan, 938 F.2d 1370, 1376-79 (D.C.Cir.1991). On first glance, the proposition that the situation is "capable of repetition" might appear dubious in light of the Termination Act's abolition of the tariff filing requirement. In a letter filed with the court shortly after passage of the Act, however, the Board informed us that the agency's posture on its authority to order rail carriers to establish (though not file) rates for common carrier service was unchanged. According to the Board's letter, since carriers remain subject to general common carrier obligations under the Act, "the Board could require a railroad to quote a common carrier rate to a shipper that has requested such a rate quotation from the carrier," though the Board could not any longer require filing of the rate. Although a statement of the Board after a proceeding addressing the matter would be more authoritative than its general counsel's letter, we see no reason to doubt that counsel's statement represents the Board's position on the legal question at issue. Moreover, as noted above, although the Termination Act abolishes the tariff filing requirement, it preserves the old statute's requirement that rail carriers "establish" rates for service they "may provide"--precisely the words of former 49 U.S.C. § 10762 on which the Commission relied in promulgating the order under review here. See Termination Act § 102(a), 109 Stat. at 810 ( ); August Decision at 1 n. 5; October Decision at 5. 4 Accordingly, any future effort by the Board to compel a railroad to state a rate for common carrier service that was expected to follow the end of ongoing contract service would pose an interpretive issue substantially similar to the one Burlington has raised here.
And there is a "reasonable expectation" that Burlington will in the future be subject to such compulsion. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975). Burlington has coal transportation contracts with nearly 50 electric utilities, and the expiration of each contract carries the potential for a repeat of the WTU events. Indeed, it appears that Burlington has already been confronted with a utility customer's request for the relief obtained by WTU. In a post-argument brief, Burlington told us...
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