Village of Barrington v. Surface Transportation Board ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2013 Decided July 18, 2014
No. 12-1485
VILLAGE OF BARRINGTON, ILLINOIS,
PETITIONER
v.
SURFACE TRANSPORTATION BOARD AND
UNITED STATES OF AMERICA,
RESPONDENTS
CANADIAN NATIONAL RAILWAY COMPANY
AND GRAND TRUNK CORPORATION,
INTERVENORS
On Petition for Review of an Order
of the Surface Transportation Board
Richard H. Streeter argued the cause and filed the briefs for
petitioner.
Theodore L. Hunt, Attorney, Surface Transportation Board,
argued the cause for respondents. With him on the brief were
Mary G. Sprague, Attorney, U.S. Department of Justice;
Raymond A. Atkins, General Counsel, Evelyn G. Kitay,
Associate General Counsel, and Theodore L. Hunt, Attorney,
Surface Transportation Board. Aaron P. Avila, Attorney, U.S.
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Department of Justice, and Craig M. Keats, Deputy General
Counsel, Surface Transportation Board, entered appearances.
Paul A. Cunningham, David A. Hirsh, and Theodore K.
Klick were on the brief for intervenors Canadian National
Railway Company and Grand Trunk Corporation in support of
respondents.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: The Village of Barrington, Illinois,
petitions for review of the Surface Transportation Board’s denial
of its request to reopen a 2008 proceeding in which the Board
approved a railroad’s acquisition of a Chicago-area railway
company. This marks the second time the Village has asked us
to “don our conductor’s cap for a ride” to review that
acquisition, Vill. of Barrington, Ill. v. STB, 636 F.3d 650, 657
(D.C. Cir. 2011). This time, the trip will be much shorter
because the Village’s jurisdictional ticket only permits us to
review its new evidence.
I
In 2008, the Surface Transportation Board (STB) approved
the acquisition of the EJ&E Railway Company by the Canadian
National Railway Company. The purpose of the acquisition was
to allow Canadian National to transfer train traffic from five of
its lines that enter the heavily congested Chicago area to EJ&E’s
main line, which encircles the city. Because the increased train
traffic on EJ&E’s line was expected to increase delays of
automotive traffic at highway intersections with that line, the
STB required Canadian National to pay for environmental
3
mitigation at affected intersections as a condition of approval of
the acquisition. At two intersections, the STB concluded that
the effect of the acquisition on highway traffic was sufficient to
require Canadian National to pay for a grade separation -- that
is, construction of an underpass or overpass to allow traffic to
bypass the railroad entirely. Canadian Nat’l Ry. Co., STB
Finance Docket No. 35087, Decision No. 16, at 44 (Dec. 24,
2008), 2008 WL 8139694 [hereinafter 2008 STB Decision].
The Village of Barrington wanted a grade separation for one
of its highway crossings, too. But the STB determined that the
increase in train-caused traffic delay projected by 2015 at the
Barrington intersection did not approach the 40 hours per day
that the STB required before it would consider the imposition of
mitigation conditions. The Village then hired a consultant of its
own, whose report concluded that projected traffic congestion at
the U.S. 14 intersection in Barrington exceeded the STB’s 40-
hour threshold. In response, the STB performed a follow-up
assessment of Barrington traffic and once again concluded that
a grade separation in Barrington was unwarranted. 2008 STB
Decision at 45 & n.101.
In 2009, Barrington, along with a number of other parties,
petitioned this court for review of the STB’s approval of the
acquisition, as well as the associated mitigation conditions.
Because Barrington failed to cite its consultant’s traffic study in
its opening brief, the court declined to consider the study in
evaluating the Village’s challenge. Vill. of Barrington, Ill., 636
F.3d at 672. After considering the merits of the arguments that
had properly been raised, the court denied the petition for
review. Id.
Thereafter, Barrington asked its consultant to perform an
updated traffic projection, based in part on post-acquisition
traffic conditions. J.A. 370. Barrington’s new study again
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found that the projected traffic at the U.S. 14 intersection would
exceed the threshold for mitigation consideration, albeit by
fewer hours than its 2008 study. Armed with this new study,
Barrington asked the STB to reopen the proceeding and require
Canadian National to fund a grade separation at Barrington’s
intersection.
Pursuant to statute, the STB “may . . . reopen a proceeding”
based upon “material error, new evidence, or substantially
changed circumstances.” 49 U.S.C. § 722(c). Barrington
contended that its latest study constituted “new evidence” that
justified reopening. It also argued that the Board’s 2008
assessment contained “material errors” in its methodology that
rendered the Board’s original decision invalid.
In a lengthy opinion addressing Barrington’s claims, the
STB denied Barrington’s request to reopen the proceeding.
Canadian Nat’l Ry. Co., STB Finance Docket No. 35087,
Barrington Petition for Mitigation, at 2 (J.A. 488) (Nov. 7,
2012), 2012 WL 5458828 [hereinafter 2012 STB Decision].
The Board explained that, because Barrington’s 2011 study
made a weaker case for a grade separation than did its 2008
study, consideration of the new study would not change the
original outcome. Id. at 10 (J.A. 496). It also said, inter alia,
that exceeding the 40-hour-delay threshold was not sufficient to
justify a grade separation and that, in light of the other relevant
factors, a grade separation at U.S. 14 was unwarranted. Id. at
10-20 (J.A. 496-506).
Barrington now petitions for review of the STB’s denial of
its request to reopen the Board’s original decision.
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II
In its petition for review, Barrington renews its claims that
there were “material errors” in the STB’s initial decision to
approve Canadian National’s purchase of the EJ&E Railway
Company in 2008, and that, in any event, “new evidence”
warrants reopening.
Barrington’s claims of material error are outside our
jurisdiction. In ICC v. Brotherhood of Locomotive Engineers,
the Supreme Court held that, “where a party petitions an agency
for reconsideration on the ground of material error, i.e., on the
same record that was before the agency when it rendered its
original decision, an order which merely denies rehearing
of . . . [the prior] order is not itself reviewable.” 482 U.S. 270,
280 (1987) (BLE) (internal quotation marks omitted). That is so,
the Court said, even if the agency “order refusing
reconsideration discussed the merits of the [petitioners’] claims
at length,” as long as the agency’s “formal disposition is to deny
reconsideration, and . . . it makes no alteration in the underlying
order.” Id. In the instant case, the STB denied rehearing of its
2008 decision, and it made no alteration in that underlying order.
Accordingly, there is nothing more we can say about
Barrington’s claims of material error. See id. at 287 (dismissing,
for lack of jurisdiction, petition challenging the ICC’s refusal to
reconsider a prior order); Town of Springfield, N.J. v. STB, 412
F.3d 187, 189 (D.C. Cir. 2005) (holding that, “when a reopening
petition rested on ‘material error,’ the court has no jurisdiction
to review a denial of the petition”); Schoenbohm v. FCC, 204
F.3d 243, 250 (D.C. Cir. 2000) (holding that the court lacks
jurisdiction to review an agency’s denial of a petition for
reconsideration “unless the request for reconsideration was
based on new evidence or changed circumstances”).
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By contrast to its treatment of claims of material error, BLE
held that, “[i]f the petition that was denied sought reopening on
the basis of new evidence or changed circumstances review is
available.” 482 U.S. at 284. The piece of new evidence
Barrington submits is its 2011 study, which updated its 2008
vehicle delay projections based on mid-2011 observations of
Canadian National’s actual post-acquisition operations in
Barrington. 2012 STB Decision at 7 (J.A. 493). The STB
maintains that Barrington’s evidence is not really new because
most of the factors considered in the study were the same in
2008 and could have been raised at that time. See Town of
Springfield, 412 F.3d at 189 (holding that evidence that “could
have been placed before the Board in the original proceeding”
is not new evidence). But there is no dispute that observations
of 2011 train traffic could not have been put before the Board in
2008. Whether this new evidence (and this new evidence only)
was enough to warrant a change in the Board’s original decision
is a merits question; it is not a question of jurisdiction. As we
said in Fritsch v. ICC, as long as “the motion to reopen was
based on non-pretextual grounds of new matter or changed
circumstances,” we have jurisdiction to review its denial. 59
F.3d 248, 252 (D.C. Cir. 1995); see Advanced Commc’ns Corp.
v. FCC, 376 F.3d 1153, 1156 (D.C. Cir. 2004).
Although we have jurisdiction to review Barrington’s new
evidence claim, our standard of review is highly deferential. As
the Court said in BLE, “overturning [a] refusal to reopen
requires ‘a showing of the clearest abuse of discretion.’” 482
U.S. at 278 (quoting United States v. Pierce Auto Freight Lines,
Inc., 327 U.S. 515, 534-535 (1946)); see also Advanced
Commc’ns Corp., 376 F.3d at 1156; AT&T Corp. v. FCC, 363
F.3d 504, 509 (D.C. Cir. 2004). We find no such abuse here.
In refusing to reopen its 2008 decision, the STB noted that
Barrington’s 2011 post-acquisition study projected less impact
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on vehicle delay than did its 2008 pre-acquisition study: The
2011 study projected 98-100 hours of additional traffic delay per
day at the U.S. 14 intersection as a consequence of the
acquisition; the original study projected 135-205 hours. 2012
STB Decision at 8 (J.A. 494). It was not an abuse of discretion
for the STB to conclude that, if the traffic projected by the
original study was insufficient to warrant requiring a grade
separation, a lower post-acquisition projection “would not have
altered the outcome the Board previously reached.” Id. at 10
(J.A. 496).
In response, Barrington argues that the new study’s
projection of 98-100 additional hours of delay is significant
because the Board concluded in 2008 that a mere 40 hours of
additional delay was sufficient for an intersection to qualify as
“substantially affected” and, therefore, as a candidate for a grade
separation. But this ignores the fact that Barrington’s original
projection of 135-205 hours also exceeded the 40-hour mark.
As the Board explained, 40 hours of delay was merely the
threshold for consideration of mitigation measures; it “did not
automatically warrant any mitigation in the [original] [d]ecision,
much less a grade separation.” Id. Predicted vehicle delay was
only one of several factors the Board considered in determining
whether mitigation should be required at an intersection. In fact,
of the 13 intersections that met the threshold, the STB required
grade separations at only two. See id. at 11 (J.A. 497).
To the extent Barrington argues that the STB’s original
decision improperly weighed the significance of then-projected
delay, it is making a material error argument that we cannot
review. See W. Pac. Stockholders’ Protective Comm. v. ICC,
848 F.2d 1301, 1303 (D.C. Cir. 1988) (holding that a claim of
“new evidence” that is “really a challenge to” the analysis in an
agency’s original decision is unreviewable). This leaves only
the question of whether the new evidence regarding vehicle
8
delay warranted a different decision. And as we have said,
because the new evidence projected less delay than the original
evidence, the Board did not abuse its discretion in concluding
that such evidence would not have changed its ultimate decision
about requiring a grade separation. See City of S. Bend, Ind. v.
STB, 566 F.3d 1166, 1171 (D.C. Cir. 2009) (finding that
agency’s refusal to reopen was justified because the new
evidence “did not require it to reverse its [original]
determination”); Advanced Commc’ns Corp., 376 F.3d at 1159
(same).1
III
Because we lack jurisdiction to consider Barrington’s
claims of material error, and because the STB did not abuse its
discretion in deciding that Barrington’s new evidence did not
warrant reopening the Board’s original decision, Barrington’s
petition for review by this court is
Denied.
1
We reach the same conclusion regarding Barrington’s contention
that the 2011 study shows that Barrington’s U.S. 14 intersection
received disparate treatment in comparison to intersections in other
towns. As the STB explained, its original decision examined
intersections on a case-by-case basis, and factors beyond vehicle delay
played an important role in its ultimate determinations. See 2012 STB
Decision at 13-16 (J.A. 499-502).