Riffin v. Surface Transportation Board ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2013 Decided October 25, 2013
No. 11-1480
JAMES RIFFIN,
PETITIONER
v.
SURFACE TRANSPORTATION BOARD
AND UNITED STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order
of the Surface Transportation Board
James Riffin, pro se, argued the cause and filed the briefs
for petitioner.
Jeffrey D. Komarow, Attorney, Surface Transportation
Board, argued the cause for respondents. With him on the brief
were Robert B. Nicholson and Finnuala K. Tessier, Attorneys,
U.S. Department of Justice, Raymond A. Atkins, General
Counsel, Surface Transportation Board, and Craig M. Keats,
Deputy General Counsel. Theodore L. Hunt, Attorney, Surface
Transportation Board, entered an appearance.
Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: James Riffin petitions for review of
a decision by the Surface Transportation Board (“the Board”)
rejecting his application for a certificate authorizing the
acquisition and operation of a small length of industrial railroad
track because his application refused any obligation to transport
“toxic inhalation hazard” products. For the following reasons,
we deny the petition for review.
I.
On September 1, 2011, Riffin and Eric Strohmeyer filed a
joint application with the Board pursuant to 49 U.S.C. § 10901
to acquire and operate approximately 800 feet of
privately-owned railroad track located in New Jersey
(hereinafter “Riffin Application”). Section 10901 provides that
a person other than a rail carrier may “acquire a railroad line or
acquire or operate an extended or additional railroad line, only
if the Board issues a certificate authorizing such activity.” 49
U.S.C. § 10901(a)(4) (2006). The Board “shall issue” an
authorization certificate “unless the Board finds that such
activities are inconsistent with the public convenience and
necessity. Such certificate may approve the application as filed,
or with modifications, and may require compliance with
conditions . . . the Board finds necessary in the public interest.”
Id. § 10901(c).
In the application, Riffin and Strohmeyer proposed to
interchange with the Consolidated Rail Corporation (“Conrail”)
at the western end of the track and provide rail service to
adjacent properties and transfer cargo to local shippers. They
“explicitly propose[d] to limit the goods to be shipped to
non-Toxic Inhalation Hazard [“TIH”] products.” Riffin
Application Part 3. They stated that “[t]his limitation on their
obligation to carry is warranted, since a common carrier is only
required to carry that which it is capable of carrying.” Id. Part
3
5. They also stated that to carry TIH would result in insurance
premiums that would be too expensive and that their lessor had
requested they not carry TIH out of concern for its own
potential liability. Further, Riffin and Strohmeyer sought “a
temporary waiver of their obligation [under 49 C.F.R. Part
1150] to provide financial information, traffic projections, lease
agreement, details about potential shippers, and their
interchange agreement with Conrail,” stating they expected to
provide most of this information in two weeks. Id. Part 11.
The Board solicited comments on the Riffin Application.
In comments filed on September 8, 2011, Conrail stated that,
notwithstanding the request for a temporary waiver of 49 C.F.R.
§ 1150.10(a), until Riffin and Strohmeyer submitted all of the
information required under the Board’s regulations, the
application was defective as a matter of law. On this basis,
Conrail requested that the Board either reject the application
without prejudice or hold it in abeyance until all the information
was provided.
On October 18, 2011, the Board rejected the Riffin
Application. Although agreeing with Conrail that Riffin and
Strohmeyer had not submitted a significant amount of required
information, the Board stated that “their application must be
rejected because it contains an even more basic defect:
Strohmeyer and Riffin expressly condition their request . . . on
receiving a common carrier obligation that would be limited by
excluding any obligation to transport a shipment designated as
a toxic inhalation hazard (TIH).” Eric Strohmeyer, STB Docket
No. 35527, 2011 WL 5006471, at *1 (Oct. 18, 2011)
(hereinafter “Decision”). The Board observed it had explained
in two recent decisions that “railroads have not only a right but
a statutory common carrier obligation to transport hazardous
materials where the appropriate agencies have promulgated
comprehensive safety regulations.” Id. (internal quotation
4
marks and alterations omitted). The Board noted that a number
of federal agencies, including the Department of Transportation,
Federal Railroad Administration, Transportation Security
Administration, and Nuclear Regulatory Commission, had
promulgated “extensive regulations governing the transportation
of hazardous materials by rail.” Id. The Board further observed
that because freight rail carriers have a statutory obligation to
transport hazardous materials “applications that seek to limit the
requested certificate of public convenience and necessity in
such a way as to exclude the transportation of TIH from the
applicant’s common carrier responsibilities are inherently
defective, and therefore incomplete.” Id.
Strohmeyer, but not Riffin, filed a petition to reopen the
Decision on the asserted ground that an applicant seeking to
become a common carrier need not agree to carry hazardous
materials because common carriers had a common-law right to
designate the goods they were willing to carry for hire. On May
10, 2012, the Board denied the petition, rejecting Strohmeyer’s
attempt to distinguish an applicant seeking to become a
common carrier from existing carriers, as the Board saw no
basis for distinguishing new and existing carriers’ respective
obligations. The Board faulted the petition for “fail[ing] to
confront the reality that allowing new applicants to limit their
common carrier obligation in whatever ways they choose would
produce gaps in the existing rail system with regard to specific
traffic, thereby undermining Congress’ clear intent to establish
an integrated national network.” Eric Strohmeyer, STB Docket
No. 35527, 2012 WL 1686170, at *2, 2012 STB LEXIS 187, at
*7 (May 10, 2012) (hereinafter “Reopening Decision”). The
Board noted that Strohmeyer’s assertion that carriers
historically had the right at common law to decide what goods
they would carry was not relevant to a railroad’s statutory
obligations under 49 U.S.C. § 11101. See id. at *2 n.4.
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II.
Riffin petitions for review of the Decision on the ground
that under the common law common carriers could designate
which commodities they intended to transport and those which
they did not. The Board rejects this position on several grounds
but as a threshold matter contends that Riffin has forfeited this
argument by failing to raise it before the Board. We conclude
no forfeiture occurred here. On the merits, however, Riffin’s
argument is unpersuasive.
A.
As a “general rule,” the Supreme Court has “recognized in
more than a few decisions, and Congress has recognized in
more than a few statutes, that orderly procedure and good
administration require that objections to the proceedings of an
administrative agency be made while it has opportunity for
correction in order to raise issues reviewable by the courts.”
United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 36–37
(1952) (internal footnotes omitted). Accordingly, reviewing
courts generally will not consider an argument that was not
raised before the agency “at the time appropriate under its
practice.” Id. at 37. This court has previously declined to
consider arguments that were not timely raised before the
Board. See BNSF Ry. Co. v. STB, 604 F.3d 602, 610–11 (D.C.
Cir. 2010); BNSF Ry. Co. v. STB, 453 F.3d 473, 479 (D.C. Cir.
2006).
The Board’s forfeiture claim rests on its position that Riffin
failed to raise his common-law arguments in the Riffin
Application itself, maintaining he had both an opportunity and
obligation to demonstrate that he could refuse to carry TIH
products. Riffin was, the Board claims, “on notice that his
proposed refusal to transport TIH products was contrary to
Board policy” in light of his frequent appearances before the
6
Board and the prior Board and court decisions discussing
railroads’ statutory obligation to transport hazardous materials.
Respt’s Br. 13–14.
This court has held that a petitioner need not seek
administrative reconsideration from the Board in order to raise
an argument for which it lacked notice until the Board issued its
final decision. CSX Transp., Inc. v. STB, 584 F.3d 1076, 1079
(D.C. Cir. 2009). This is what happened here. The only other
party in the Board proceedings, Conrail, had objected to the
Riffin Application on the ground that it was incomplete, not that
it conflicted with Board policy regarding transportation of
hazardous materials. Rather, the Board sua sponte raised the
hazardous materials issue in its Decision without first providing
Riffin an opportunity to address the issue. Neither 49 U.S.C.
§ 10901 nor the Board’s regulations require an applicant for a
§ 10901 certification to include a memorandum of law in the
application. Cf. 49 C.F.R. § 1150.8 (2012). Even if Riffin
frequently appeared in proceedings, it is not entirely implausible
that the Board might view new entrants in Riffin’s situation
somewhat differently for purposes of carrying hazardous
material; its precedent did not specifically address the question.
Under the circumstances, Riffin had no reason to think he had
to make his common-law arguments part of his application to
the Board.
B.
Riffin contends that there is no statutory common carrier
obligation to transport hazardous materials because Congress
did not enact legislation requiring common carriers to transport
all goods and, consequently, the common law remains in effect.
Under common law, he claims, carriers could designate which
commodities they intended to transport. Riffin observes that the
Board’s predecessor, the Interstate Commerce Commission
(“the ICC”), historically ruled that it lacked jurisdiction to
7
compel carriage pursuant to § 1(4) of the Interstate Commerce
Act, now 49 U.S.C. § 11101(a) (2006).
Section 11101(a) provides that “[a] rail carrier providing
transportation or service subject to the jurisdiction of the Board
under this part [49 U.S.C. §§ 10101–11908] shall provide the
transportation or service on reasonable request.” Riffin does not
contest that the rail service he sought to provide is subject to
“this part.” The Board has exclusive regulatory authority over
transportation conducted over the interstate rail network. See id.
§ 10501(a). The question is whether § 11101(a), in conjunction
with the Board’s licensing authority under § 10901, authorizes
the Board to compel new carriers to transport TIH materials.
The court reviews the Board’s interpretation of the statute it
administers under the familiar framework of Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). We hold that the Board’s interpretation of the freight
carriage obligations required under § 11101(a) is a permissible
interpretation of the statute. See Chevron, 467 U.S. at 842–43.
As the Supreme Court recently confirmed in City of
Arlington, TX v. FCC, — U.S. —, 133 S. Ct. 1863, 1868 (2013),
an agency’s interpretation of a statutory ambiguity that concerns
the scope of its regulatory authority is entitled to deference
under Chevron. Because “every new application of a broad
statutory term can be re-framed as a[n] . . . extension of the
agency’s jurisdiction,” “the question in every case is, simply,
whether the statutory text forecloses the agency’s assertion of
authority, or not.” Id. at 1871. In United States v. Pennsylvania
Railroad Co., 323 U.S. 612, 615–19 (1945), the Supreme Court
upheld the ICC’s authority to compel railroads to interchange
their rail cars with water carriers despite the statute’s silence on
the subject. Rejecting the view “that the absence of specific
language indicates a purpose of Congress not to require” the
activities the ICC had ordered, id. at 616, the Court concluded
8
that the Interstate Commerce Act “provide[s] sufficient
authorization for the Commission’s order.” Id. at 619. The
Court explained:
The very complexities of [rail transportation] have
necessarily caused Congress to cast its regulatory
provisions in general terms. Congress has, in general,
left the contents of these terms to be spelled out in
particular cases by administrative and judicial action,
and in the light of the congressional purpose to foster
an efficient and fair national transportation system.
Id. at 616.
Similarly, the Supreme Court recognized that the ICC
retained its regulatory authority even when it had previously
declined to exercise jurisdiction over the issue in question. In
American Trucking Ass’ns v. Atchison, Topeka & Santa Fe
Railway Co., 387 U.S. 397 (1967), the Court held that the ICC
had authority to compel rail carriage even though its new rules
would have departed from its established policies.
Acknowledging that for over 25 years the ICC had expressly not
required the service it now sought to compel, the Court observed
that “the Commission, faced with new developments or in light
of reconsideration of the relevant facts and its mandate, may
alter its past interpretation and overturn past administrative
rulings and practice.” Id. at 416. Regulatory agencies “are
neither required nor supposed to regulate the present and the
future within the inflexible limits of yesterday.” Id.
Riffin declines to engage with the effect of this precedent on
his position. Instead, he cites decisions that do not discuss the
statutory common carrier obligation under § 11101(a) and, the
Board notes, either were decided before enactment of the
National Transportation Act of 1920 giving the ICC licensing
9
authority or, if post-1920 cases, do not deal with the Board’s
authority to require common carrier railroads to handle certain
commodities as part of their common carrier obligation. In
American Trucking, 387 U.S. at 406, the Supreme Court stated
that it is an “obvious fact that the Interstate Commerce Act
codified the common-law obligations of railroads as common
carriers,” and that it does so “in the most general terms.” See
also Dir. Gen. of R.R.s v. Viscose Co., 254 U.S. 498, 504 (1921).
Tracing the history of railroad regulation and § 1(4) of the Act,
the Court noted that under that section (the predecessor to 49
U.S.C. § 11101(a)) the “obligation as common carriers is
comprehensive and exceptions are not to be implied.” Am.
Trucking Ass’ns, 387 U.S. at 407.
This court engaged in a similar historical analysis in Cellco
Partnership v. FCC, 700 F.3d 534, 545–47 (D.C. Cir. 2012),
observing that, “[o]ver the decades, these common law duties [of
common carriers] were codified in a variety of statutory
regimes,” including the Interstate Commerce Act, and that given
“the evolving meaning of common carriage . . . in the midst of
changing technology and the evolving regulatory landscape,” the
relevant administrative agencies have “significant latitude to
determine the bounds of common carriage in particular cases.”
Addressing a similar common carriage provision for airlines, the
court explained in Delta Air Lines, Inc. v. CAB, 543 F.2d 247,
259 (D.C. Cir. 1976), that “[t]he extent to which the airline
carriers of today have a right to delineate what they will carry
and for whom depends not only upon their common law
responsibilities as common carriers, but also upon the statutory
obligations and regulatory powers created by the Federal
Aviation Act.”
More directly, the Sixth Circuit concluded in Akron, Canton
& Youngstown Railroad Co. v. ICC, 611 F.2d 1162, 1166 (6th
Cir. 1979), that although the Interstate Commerce Act “codified
10
the common-law obligations of railroads as common carriers,
this does not mean that the Act created no purely statutory
obligations of rail carriers” (internal citation omitted). While
recognizing that “at common law carriers could pick and choose
the goods which they would transport in common carriage,” the
court observed that “even at common law, railroad companies,
‘whose property and facilities are affected with a public interest,
[were] ordinarily held to be common carriers of goods delivered
to them for transportation.’” Id. (quoting 12 C.J.S. Carriers § 6).
The court further observed that the ICC “has primary
jurisdiction to execute the National Transportation Policy’s
mandate . . . [under] 49 U.S.C. § 10101,” and that “[i]f the
Congressional delegation to the Commission of power to
implement the National Transportation Policy is to be effective,
the Commission must have the statutory authority exercised by
its order . . . [stating its] preference of rail over truck carriage of
spent fuel.” Id. at 1168.
Riffin’s efforts to demonstrate that § 11101 must be read to
support the view that a new common carrier may decline to
provide transportation of certain commodities are to no avail.
He urges that § 11101 by its plain text speaks only to a carrier
already “providing [certain] transportation or service” that must
provide “the transportation or service” upon reasonable request.
49 U.S.C. § 11101(a) (emphasis added). So, he suggests, if a
new carrier opts not to provide transportation for a particular
commodity, then it need not do so in the future, even on
reasonable request. Riffin compares different text in the
predecessor provision (former 49 U.S.C. § 1(4)) and points to
general policy statements made by Congress elsewhere in the
ICC Termination Act of 1995, 49 U.S.C. § 10101(1)–(8).
In rejecting the Riffin Application, the Board relied
principally on two decisions where it had stated that freight
“[r]ailroads have not only a right but a statutory common carrier
11
obligation to transport hazardous materials ‘where the
appropriate agencies have promulgated comprehensive safety
regulations.’” Decision at *1 (citing BNSF Ry., FD 35164, slip
op. at 6 (STB served Dec. 2, 2010) (quoting Union Pac. R.R.,
FD 35219, slip op. at 3–4 (STB served June 11, 2009))). In
Union Pacific, the Board issued a declaratory order upon
determining that a railroad had a statutory common carrier
obligation to transport chlorine, a TIH, through urban areas
despite alternative sources of chlorine closer to the requested
destinations. See Union Pac. R.R., FD 35219, slip op. at 1.
Stating that railroads have a statutory common carrier obligation
under 49 U.S.C. § 11101(a) to provide transportation or service
“upon reasonable request,” id. at 3, the Board observed that
“[w]hat constitutes a reasonable request for service is not
statutorily defined but depends on all the relevant facts and
circumstances.” Id. at 3–4. It also observed that “Court and
Board precedent have addressed the extent of the common
carrier obligation with regard to transporting hazardous
materials” and that “the common carrier obligation requires a
railroad to transport hazardous materials where the appropriate
agencies have promulgated comprehensive safety regulations.”
Id. at 4. At that time the Department of Transportation and
Transportation Security Administration had comprehensive
regulatory programs addressing the safety and security risks of
transporting hazardous materials by rail. The Board concluded
that allowing a railroad to avoid its obligation to transport
hazardous materials nonetheless would require it improperly to
substitute its judgment about safety for that of the regulatory
agencies. Id. at 5–6. In BNSF, FD 35164, slip op. at 6, the
Board applied that view of common carrier obligations, ruling
that BNSF’s transportation of hazardous materials did not pose
an impermissible safety threat to area residents because the
petitioner offered no evidence that BNSF had violated any
applicable safety regulations.
12
The rule established by BNSF and Union Pacific represents
at least a permissible interpretation of the statutory requirement
that a “rail carrier providing transportation or service subject to
the jurisdiction of the Board . . . shall provide the transportation
or service on reasonable request.” 49 U.S.C. § 11101. Where
an agency has promulgated comprehensive safety regulations for
a particular type of cargo (helping to ensure the safety of
shipments of that category of freight), those regulations can be
viewed as transforming a shipping request into a presumptively
reasonable one under § 11101. Although the Board had no
occasion to address a distinction between new and existing
carriers in BNSF and Union Pacific, the rule from those cases
embraces new and existing carriers. In denying Strohmeyer’s
petition to reopen the Decision, the Board explained that a
distinction between new and existing carriers who transport TIH
products would prove unworkable because it could produce gaps
in the national rail network. Reopening Decision at *2.
Riffin’s response, that approving his application would not
create any such “gap” because he sought to operate only a small
length of track at the tail end of an existing rail, misses the point.
The “gaps” of concern to the Board are those that would arise
from permitting new carriers to define the scope of their own
common carrier obligations, not the 800-foot “gap” that would
result from Riffin’s opt-out in particular. The Riffin Application
sought a blanket exemption that would shield Riffin and
Strohmeyer from the obligation to entertain requests to carry
TIH. Much as the Sixth Circuit observed in Akron, 611 F.2d at
1168, the Board’s stated interest, given the complexity and
interdependence of the national rail system, in ensuring the
freight rail network remains open to transportation of hazardous
materials without any gaps implements a public interest in
consistency and provides a reasonable basis for treating new and
existing carriers alike. Riffin’s argument, that “[i]mposing more
limited obligations on new carriers promotes an efficient rail
13
transportation system and promotes the continuation of a sound
rail transportation system and facilitates entry into the industry,”
Reply Br. 25 (internal quotation marks, ellipses, and citations
omitted), was not presented in his opening brief, which means
it “ordinarily comes too late for our consideration,” Students
Against Genocide v. Dep’t of State, 257 F.3d 828, 835 (D.C. Cir.
2001); in any event, it is the Board, not this court, that makes
such policy judgments.
The Board’s reasoning for rejecting the distinction between
existing and new common carrier obligations was neither
arbitrary nor capricious nor contrary to law. See Vill. of
Barrington, Ill. v. STB, 636 F.3d 650, 670 (D.C. Cir. 2011).
Likewise the Board’s response to Riffin’s statement about cost-
prohibitive insurance premiums. The Board explained that
“[a]pplicants for common carrier authority . . . cannot lawfully
make fulfilling their statutory obligations contingent upon
whether they think it is ‘worth it’ to do so”; “a carrier must
adhere to its statutory obligations even if it suffers hardship in
so doing.” Decision at *2 (quoting Pejepscot Indus. Park, Inc.,
6 S.T.B. 886, 898 (2003) (citing Decatur Cnty. Comm’rs v. STB,
308 F.3d 710, 715 (7th Cir. 2002)), reconsideration granted in
part, 7 S.T.B. 220 (2003)) (internal quotation marks omitted).
Rather, “[t]he only appropriate mechanisms a railroad may
employ to excuse itself, either permanently or temporarily, from
its common carrier obligations on a line of railroad are
abandonment, discontinuance, or embargo.” Id. In Pejepscot,
the Board instructed that if a line of rail track has not been
abandoned or embargoed, there is “an absolute duty to provide
rates and service over the [l]ine upon reasonable request,” and
a “failure to perform that duty [is] a violation of section 11101.”
6 S.T.B. at 899. The Board’s position reflects the public interest
in ensuring the network remains open for transport of hazardous
materials where comprehensive security and safety regulations
are present.
14
Accordingly, because the Board has permissibly
determined the scope of a freight railroad’s common carrier
obligation under 49 U.S.C. § 11101(a), and the Board’s rejection
of Riffin’s application was reasonable, we deny the petition for
review.