We Coal Traf Leag v. STB ( 2000 )


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  •                   United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued June 13, 2000      Decided July 14, 2000
    No. 00-1115
    Western Coal Traffic League, et al.,
    Petitioners
    v.
    Surface Transportation Board and United States of America,
    Respondents
    Norfolk Southern Corporation, et al.,
    Intervenors
    Consolidated with
    00-1118, 00-1120
    On Petitions for Review of an Order of the
    Surface Transportation Board
    Roy T. Englert, Jr. argued the cause for petitioners.  With
    him on the briefs were Erika Z. Jones, David I. Bloom,
    Adam C. Sloane, William L. Slover, C. Michael Loftus,
    Robert D. Rosenberg, Paul A. Cunningham, David A. Bono,
    Richard B. Herzog, Gerald P. Norton, Richard E. Weicher,
    Robert B. Fiske, Jr. and Guy Miller Struve.
    Robert P. vom Eigen, Roderick B. Williams, Frederic L.
    Wood, Nicholas J. DiMichael, Harold A. Ross and Daniel R.
    Barney were on the joint brief of intervenors Gaylord Con-
    tainer Corporation, et al., and amici curiae The Fertilizer
    Institute, et al., in support of petitioners. Thomas J. Litwiler
    and Peter S. Glaser entered appearances.
    Craig M. Keats, Associate General Counsel, Surface Trans-
    portation Board, argued the cause for respondents.  With
    him on the brief was Ellen D. Hanson, General Counsel.
    George A. Aspatore, G. Paul Moates, Vincent F. Prada,
    Paul A. Hemmersbaugh, Peter J. Shudtz, Dennis G. Lyons,
    Terence M. Hynes, James V. Dolan, Louise A. Rinn, J.
    Michael Hemmer, David L. Meyer, William A. Mullins,
    Clinton J. Miller, III, Daniel R. Elliott, III, Gregory B.
    Robertson, Daniel A. LaKemper and John D. Sharer were on
    the joint brief of intervenors Norfolk Southern Corporation,
    et al., and amici curiae James River Coal Company, et al., in
    support of respondent.  Louis E. Gitomer, Donald H. Smith
    and William A. Mullins entered appearances.
    Before:  Williams, Ginsburg and Sentelle, Circuit Judges.
    Opinion for the Court filed by Circuit Judge Ginsburg.
    Dissenting opinion filed by Circuit Judge Sentelle.
    Ginsburg, Circuit Judge:  The Western Coal Traffic
    League, the Canadian National Railway Company (CN), the
    Burlington Northern Santa Fe Corporation, and the Burling-
    ton Northern and Santa Fe Railway Company (BNSF) (col-
    lectively, BNSF) petition for review of a decision by the
    Surface Transportation Board to place a 15-month "moratori-
    um" upon the filing of railroad merger applications.  The
    Board initiated the moratorium after BNSF and CN had
    notified the Board that they planned to submit a merger
    application.  BNSF argues that the Board lacks the authority
    to impose a moratorium upon the filing of merger applica-
    tions;  by declaring the moratorium the Board violated its
    statutory duty to consider and to rule upon merger applica-
    tions within a prescribed period of time;  and that the Board's
    decision was arbitrary and capricious.  We conclude the
    Board neither violated the statute nor otherwise exceeded its
    authority by imposing the moratorium and deny the petition
    for review.
    I. Background
    The railroad industry has undergone a considerable consoli-
    dation in recent years, with the result that there remain only
    four large railroads in the United States and two in Canada.
    According to the Board, the most recent of these consolida-
    tions have led to severe disruptions in service.  After BNSF
    and CN announced in December 1999 their proposal to merge
    as soon as the Board approved, the Board expressed concern
    that the merger could further exacerbate service problems;
    the Board also determined that the merger could well be the
    first in a final round of mergers that would leave only two
    major lines serving all of North America.
    After BNSF and CN formally notified the Board on De-
    cember 20, 1999 that they would file a merger application in
    three to six months, see 49 C.F.R. s 1180.4(b), the Board
    issued a Notice of Public Hearing and Request for Comments
    on the future of the railroad industry and on the proper role
    of mergers in shaping that future.  See Decision, Public
    Views on Major Rail Consolidations, Ex Parte No. 582 (Janu-
    ary 24, 2000).  The Notice indicated that, although the Board
    was prompted to consider consolidation in the railroad indus-
    try in part because of the BNSF/CN proposal, the agency
    intended to consider the issues raised by consolidation sepa-
    rately from, and not as a "prejudgment" of, the BNSF/CN
    application.  The Board did not mention in the Notice that it
    might impose a moratorium upon the filing of merger applica-
    tions.  At the conclusion of the comment period, however, the
    Board announced a 15-month moratorium upon the filing of
    merger applications because
    the rail community is not in a position to now undertake
    what will likely be the final round of restructuring of the
    North American railroad industry, and because [the
    Board's] current rules are simply not appropriate for
    addressing the broad concerns associated with reviewing
    business deals geared to produce two transcontinental
    railroads.
    Decision, Public Views on Major Rail Consolidations, STB Ex
    Parte No. 582 (March 16, 2000);  see also Corrected Decision,
    Public Views on Major Rail Consolidations, STB Ex Parte
    No. 582 (April 7, 2000).  The Board stated it would use this
    time to review and revise its standards for considering merg-
    er proposals.  Among the concerns raised by commentors,
    the Board noted the service disruptions that had resulted
    from prior mergers, and the decreased competition that could
    result from further consolidation within the industry.  The
    Board acknowledged that "holding up [the BNSF/CN] merg-
    er application proceeding would itself be viewed negatively by
    the financial markets as creating uncertainty," but found the
    potential benefits to the carriers of going forward at once on
    the merger application outweighed by the uncertainty of
    processing the application "without appropriate rules in place
    at the beginning to govern the proceeding."
    BNSF contends--in a variety of ways--that the Board may
    not lawfully postpone its acceptance or its review of a railroad
    merger proposal.  The petitioners' central argument and the
    theme underlying most of its arguments is that, under the
    timeline set out in 49 U.S.C. s 11325, the Board must accept
    when proffered any merger application that is complete, and
    must decide whether to approve the proposed merger within
    16 months of receiving the application.
    II. Analysis
    To the extent BNSF argues that the Board lacks the
    statutory authority to impose a moratorium, we review the
    Board's construction of the statute under the standards estab-
    lished in Chevron U.S.A. Inc. v. Natural Resources Defense
    Council, Inc., 
    467 U.S. 837
    , 842-44 (1984).  At step one we
    ask whether the Congress "has directly spoken to the precise
    question at issue."  
    Id. at 842
    .  If it has, then we are bound
    to "give effect to the unambiguously expressed intent of
    Congress."  
    Id. at 843
    .  If it has not, then we proceed to step
    two, and defer to the Board's interpretation of the statute so
    long as it is "based on a permissible construction of the
    statute."  
    Id.
      Our inquiry at step two is informed by the
    Supreme Court's recent teaching in Food and Drug Adminis-
    tration v. Brown & Williamson Tobacco Corp., 
    120 S. Ct. 1291
    , 1300-01 (2000), that a reviewing court should "examin[e]
    a particular statutory provision ... '[in] context and with a
    view to [its] place in the overall statutory scheme' ... [and]
    be guided to a degree by common sense as to the manner in
    which Congress is likely to delegate a policy decision of such
    economic and political magnitude to an administrative agen-
    cy."
    If we find (as we do) that the Board has the statutory
    authority to impose a moratorium, we will uphold its decision
    to do so as long as it "examine[d] the relevant data and
    articulate[d] a satisfactory explanation for its action including
    a 'rational connection between the facts found and the choice
    made.' "  Motor Vehicle Mfrs. Ass'n v. State Farm Mutual
    Auto. Ins. Co., 
    463 U.S. 29
    , 43 (1983) (quoting Burlington
    Truck Lines, Inc. v. United States, 
    371 U.S. 156
    , 168 (1962)).
    A.   The Board's Statutory Authority
    The main statutory direction for the Board's review of
    merger proposals appears in 49 U.S.C. ss 11324 and 11325.
    In s 11324(a) the Board is instructed to begin considering a
    merger application upon receipt of the application and to
    consider, among other things, "whether the proposed transac-
    tion would have an adverse effect on competition among rail
    carriers."  49 U.S.C. s 11324(b)(5).  The Board must "ap-
    prove and authorize" a merger it finds to be "consistent with
    the public interest."  49 U.S.C. s 11324(c).
    Section 11325 instructs the Board within 30 days of receiv-
    ing an application either to reject it as incomplete or, if it is
    complete, to publish notice of the application in the Federal
    Register.  See 49 U.S.C. s 11325(a).  The Board must con-
    clude its evidentiary proceedings within one year of publish-
    ing the notice, and issue a final decision within 90 days of
    concluding the evidentiary proceedings.  
    Id.
     s 11325(b)(3).
    1.   The Positions of the Parties
    In the Decision announcing the moratorium, the Board
    explained that it could not then adequately determine wheth-
    er any further railroad mergers were in the public interest.
    Indeed, the Board imposed the moratorium specifically in
    order to review its criteria for determining the public inter-
    est.  In addition to the "public interest" mandate of
    s 11324(c), the Board cited as authority for the moratorium
    49 U.S.C. s 721(a), which authorizes the Board to "carry out
    ... [and] prescribe regulations in carrying out" merger pro-
    ceedings, and 49 U.S.C. s 721(b)(4), which authorizes the
    Board, "when necessary to prevent irreparable harm, [to]
    issue an appropriate order without regard to [certain require-
    ments of the Administrative Procedure Act]."
    BNSF emphasizes that s 11325 by its terms requires the
    Board to adhere to a strict timetable;  once a complete
    application is proffered--and the Board does not claim that
    the BNSF/CN application will be incomplete--the Board
    must accept and consider it pursuant to the statutory time-
    line.*  Because the moratorium "drains the force" of the
    __________
    * The petitioner argues that we should analyze this case under
    Chevron step one;  that is, the petitioner claims that the Congress
    has specifically addressed whether the Board has the authority to
    impose the moratorium.  See Blue Br. 21-22.  Although the dissent
    questions whether Chevron applies here, see Dis. Op. 1-2, we take
    the arguments as we find them and do not on our own initiative
    review the agency's actions more searchingly than the petitioners
    request.  See Frederick Cty. Fruit Growers Ass'n v. Martin, 
    968 F.2d 1265
    , 1272 (D.C. Cir. 1992);  see also Forester v. Consumer
    Prod. Safety Comm'n, 
    559 F.2d 774
    , 789-90 n.22 (D.C. Cir. 1977)
    (declining to apply more stringent standard of review because,
    among other things, neither party argued the point).  And under
    Chevron step one our dissenting colleague and we are in agreement
    deadlines set up in s 11325, BNSF maintains that authority
    for a moratorium must come "clearly" from the Congress.
    As BNSF notes, none of the provisions cited by the Board
    expressly authorizes the agency to impose a moratorium upon
    the filing of merger applications.  The general rulemaking
    authority of s 721(a) does not "trump" the specific require-
    ments of s 11325 and, even assuming arguendo that the
    moratorium properly may be considered an injunctive-type
    order, which BNSF disputes, s 721(b)(4) does not relieve the
    Board of any of its statutory duties except adherence to the
    APA.  Finally, BNSF urges that the Board's mandate to
    consider the "public interest" does not relieve the agency of
    the obligation to do so within the time frame provided in
    s 11325.
    In response, the Board argues that the moratorium is
    consistent with its governing statute, understood in the light
    of applicable case law.  First, the Board notes that it has
    been delegated by the Congress "exclusive and broad authori-
    ty to determine whether rail mergers are in the public
    interest";  this "broad delegation" of authority, it argues,
    implicitly carries with it the discretion to place "a temporary
    hold" upon the receipt of merger applications when warranted
    by "extraordinary circumstances."  Second, the Board relies
    upon several cases in which courts have upheld various
    agency decisions to place a moratorium or "freeze" upon the
    processing of applications.  See, e.g., Permian Basin Area
    Rate Cases, 
    390 U.S. 747
    , 777-81 (1968) (approving moratori-
    um on rate proceedings under s 4(d) of Natural Gas Act);
    Neighborhood TV Co., Inc. v. FCC, 
    742 F.2d 629
    , 634-40 (D.C.
    Cir. 1984) (approving interim processing procedures, pending
    promulgation of final rules, including freeze upon filing of
    certain applications for broadcast licenses);  Westinghouse
    Elec. Corp. v. NRC, 
    598 F.2d 759
    , 769-76 (3d Cir. 1979)
    (upholding two-year suspension of pending rulemaking and
    related licensing proceedings);  Krueger v. Morton, 
    539 F.2d 235
    , 239-40 (D.C. Cir. 1976) (upholding "pause" in issuance of
    __________
    that "the statute is not free of ambiguity," and that we must
    therefore proceed under Chevron step two.
    coal permits as not abuse of discretion);  Kessler v. FCC, 
    326 F.2d 673
    , 679-85, (D.C. Cir. 1963) (upholding "freeze" upon
    acceptance of applications pending adoption of new rules).
    The Board argues that, like the agencies in the cited cases, it
    was reasonable in imposing the moratorium in order properly
    to determine where the public interest lies in light of the
    recent changes in the railroad industry, including increased
    concentration and the service disruptions that resulted from
    previous mergers.
    2.   Resolution
    The statute does not address the unanticipated conflict this
    case presents between the process by which the Board is to
    review a proposed merger and the purposes for which the
    Board is to conduct its review.  Because the Congress has not
    "directly spoken to the precise question at issue," Chevron,
    
    467 U.S. at 842
    , we review the Board's resolution of that
    conflict under Chevron step two.  Here we take BNSF's
    argument as implicitly including, in the alternative, the posi-
    tion that the Board's interpretation is unreasonable under
    Chevron step two.  We acknowledge that it would not be
    illogical to infer that, because the Congress intended in
    s 11325 to expedite the Board's review of merger proposals, a
    moratorium that delays the start of that review depends upon
    an unreasonable reading of the statute as a whole.  We are
    persuaded otherwise, however, by the numerous cases up-
    holding agency decisions to defer actions mandated by statute
    (here, review of a proposed merger pursuant to the timetable
    in s 11325) where doing so is administratively necessary in
    order to realize the broader goals of the same statute (here,
    maintenance of rail service to the public and "competition
    among rail carriers," pursuant to s 11324).
    For example, in Westinghouse, the Third Circuit consid-
    ered whether the Nuclear Regulatory Commission had statu-
    tory authority to suspend for two years a rulemaking and a
    related licensing proceeding for recycling and reusing spent
    nuclear fuel.  See 
    598 F.2d 762
    -64.  The NRC was prompted
    to halt such proceedings after President Carter issued a
    policy statement expressing concerns about the use of recy-
    cled nuclear fuel.  
    Id. at 764-65
    .  The Commission also
    wanted time to receive the results of two on-going studies.
    
    Id. at 770
    .  The petitioners argued that the Commission was
    bound by s 103 of the Atomic Energy Act of 1954 (AEA),
    which governs the grant of commercial licenses, to consider
    the applications under a set of criteria previously established
    by the Commission;  that is, the agency could not issue a
    moratorium in the middle of an on-going proceeding.  The
    court agreed with the petitioners' reading of s 103 but none-
    theless rejected their argument, holding that the Commis-
    sion's general duty to protect the common defense and securi-
    ty warranted its decision not to comply with the precise
    requirements of s 103:
    We agree with petitioners that under s 103, once an
    applicant complies with the provisions of the AEA and
    Commission rules and regulations, the NRC must issue a
    license unless it determines that "the issuance of a
    license to such person would be inimical to the common
    defense and security or to the health and safety of the
    public."  But we do not believe that a finding of inimicali-
    ty or noncompliance with the applicable requirements
    has to be made before the NRC may suspend license
    application proceedings.  This would appear to be partic-
    ularly true where a moratorium is declared to enable the
    Commission to make a reasoned decision regarding the
    rules and regulations that should be applied and whether
    the issuance of licenses would be inimical to the common
    defense and security.
    
    Id. at 772
    ;  see also Krueger, 
    539 F.2d at 239-40
     (Secretary's
    decision to suspend grants of coal permits consistent with
    larger objectives of statute).
    Likewise, in Commonwealth of Pennsylvania v. Lynn, 
    501 F.2d 848
     (D.C. Cir. 1974), we considered whether the Secre-
    tary of Housing and Urban Development was authorized to
    suspend several federal housing subsidy programs in order to
    study and evaluate whether the programs actually were
    achieving--rather than frustrating--the purposes of the Con-
    gress in authorizing them.  The relevant provisions of the
    housing statutes authorized the Secretary to enter into hous-
    ing contracts, directed the Secretary to issue "pertinent regu-
    lations," and authorized the appropriation of sums necessary
    to conduct the programs.  See 
    id. at 852-53
    .  There was no
    indication on the face of the statutes that the Secretary could
    suspend operation of the programs.  See 
    id. at 854
    .
    Noting that the suspension " 'reflects real concern about
    the equity and efficiency of these programs,' " we asked:  "(1)
    whether the Congress gave the Secretary discretion to halt
    the programs for program-related reasons, and (2) if so,
    whether that discretion was abused."  
    Id. at 852
    .  We then
    noted that determining whether the Congress had vested the
    Secretary with the discretion he claimed was "preeminently a
    question of intent."  
    Id.
      An examination of the relevant
    statutes and legislative history yielded a further-refined anal-
    ysis:
    The real question here is whether the Secretary has the
    discretion, or indeed the obligation, to suspend the pro-
    grams' operation when he has adequate reason to believe
    that they are not serving Congress's purpose of aiding
    specific groups in specific ways, or are frustrating the
    national housing policies applicable to all housing pro-
    grams.  We think he has this limited discretion.
    
    Id. at 855-56
    .  We recognized that although ordinarily the
    Secretary would report to the Congress any major difficulty
    he was having with a particular program and await its action,
    in some situations the delay inherent in such a process may
    be untenable:
    If the programs are indeed disserving congressional poli-
    cy, their continued operation at normal levels for the
    nine-month period deemed necessary for their evaluation
    would implicate the Secretary in a massive frustration of
    that policy.  Commitments made under these programs
    may obligate the federal government, irrevocably, to
    make very substantial outlays for ... many ...
    years....  A court is properly reluctant to conclude that
    Congress forbade the Secretary to withhold commit-
    ments of so vast a magnitude when he has good reason to
    believe that exercising his authority would be contrary to
    the purposes for which Congress authorized him to act.
    
    Id. at 856
    .
    In the present case, the Board believes that without an
    opportunity to re-evaluate its standards for determining the
    public interest, it too risks a "massive frustration" of congres-
    sional policies, here the substantive policies prescribed in
    ss 11324(b)(5) & (c).  The agency's concern in Lynn is equal-
    ly present in this case:  forcing the Board's hand before it is
    ready to act could bring about momentous changes in the
    railroad industry, including a loss of competition that may
    never be restored.
    BNSF would have the court distinguish the line of cases
    just canvassed on the ground that the statutes in question did
    not contain specific timelines for processing applications.
    True enough, but we have also considered numerous cases in
    which an agency failed to meet a statutory deadline;  in these
    cases we have similarly considered whether the agency has
    demonstrated a reasonable need for delay in light of the
    duties with which it has been charged.  As we first indicated
    in Telecommunications Research and Action Center v. FCC,
    
    750 F.2d 70
     (D.C. Cir. 1984), the specificity of the statutory
    timetable is merely one of six factors we consider when
    determining whether a protestant is entitled to relief from the
    agency's delay.  See TRAC, 
    750 F.2d at 80
    .  For example, the
    importance of meeting the statutory deadline must be
    weighed against the effect of expedited action upon "agency
    activities of a higher or competing priority," and the length of
    the delay must be considered.*
    __________
    * We recognize, of course, that unlike most unreasonable delay
    cases under TRAC, this is not a mandamus proceeding;  BNSF's
    burden is not to demonstrate that it has a "clear and indisputable
    entitlement to relief" but that the agency's interpretation of the
    statute it administers is not "permissible."  The standards are
    similar, however, in that the considerations relevant in a mandamus
    case based upon unreasonable agency delay play a part in this case
    as well.  The agency's defense of its interpretation depends primar-
    ily upon the claimed need to make a trade off between statutory
    Consider In re Barr Laboratories, Inc., 
    930 F.2d 72
     (D.C.
    Cir. 1991), which involved a 1984 amendment to the Food,
    Drug, and Cosmetic Act that required the Food and Drug
    Administration " '[w]ithin one hundred and eighty days of the
    initial receipt of a [generic drug] application ... [to] approve
    or disapprove the application.' "  
    930 F.2d at 74
     (quoting 21
    U.S.C. s 355(j)(4)(A)).  The applicant claimed that the FDA
    had repeatedly exceeded the 180-day deadline in processing
    its applications, often taking more than twice the time allowed
    to process an application.  See 
    id.
     Despite the clear 180-day
    deadline in the statute, we denied the company's petition for
    mandamus because we simply were not in a position to dictate
    to the agency how to set its priorities:
    The agency is in a unique--and authoritative--position to
    view its projects as a whole, estimate the prospects for
    each, and allocate its resources in the optimal way.  Such
    budget flexibility as Congress has allowed the agency is
    not for us to hijack.
    
    Id. at 76
    .
    Similarly, we will not dictate that the Board must comply
    with a deadline for determining whether a merger application
    is in the public interest when it claims, in apparent good faith,
    that in its "unique--and authoritative" view it needs time to
    reconsider its standards for evaluating the public interest.
    Although s 11325 clearly indicates a congressional intent for
    the Board to conduct merger reviews expeditiously, we must
    bear in mind that the Board is also charged, in reviewing
    merger proposals, with considering among other things "the
    effect of the proposed transaction on the adequacy of trans-
    portation to the public," and "whether the proposed transac-
    tion would have an adverse effect on competition among rail
    __________
    goals--expediting merger review, on the one hand, and preserving
    competition and service to the public on the other--that seem to
    conflict in the circumstances of this case.  If these conflicting
    circumstances make reasonable the Board's interpretation of its
    authority to delay the processing of a merger application, then it
    must prevail regardless whether the question is that posed under
    Chevron step two or under TRAC.
    carriers."  49 U.S.C. s 11324(b)(1), (5);  see also 
    id.
    s 10101(4) (policies for regulating railroad industry include
    ensuring "effective competition among rail carriers" and that
    rail carriers "meet the needs of the public").  As the Board
    noted in announcing the moratorium, increased consolidation
    in the railroad industry gave rise to concerns about preserv-
    ing competition in the industry, and the service disruptions
    that have resulted from previous mergers have similarly
    given rise to concerns about the ability of carriers to meet the
    needs of the public.  Neither the statute nor the legislative
    history give any indication that the Congress considered
    compliance with the timeline in s 11325 more important than
    the substantive purposes for which the Board reviews merger
    applications. Indeed, forcing the Board to proceed pursuant
    to s 11325 before it has had an opportunity to determine
    where the public interest lies would defeat altogether the
    purpose of the agency's review, whereas allowing the Board
    to focus for a reasonable time upon revising its criteria would
    likely enable the Board to continue to meet its deadlines once
    it resumes processing applications.
    The present state of the railroad industry thus is one of
    those "unanticipated circumstances" that require us to "con-
    strue the relevant statutes in a manner that most fully
    effectuates the policies to which Congress was committed."
    Lynn, 
    501 F.2d at 857
    .  In doing so, we conclude under step
    two of Chevron that the Board has reasonably interpreted the
    relevant statutes to accommodate a moratorium where neces-
    sary to carry out its duties to preserve competition and
    protect the public interest.  Where, as in this case, there is no
    evidence (or indeed, allegation) of bad faith on the part of the
    agency, and the agency has demonstrated a reasonable need
    for delay, "we have no reason to think that judicial interven-
    tion would advance either fairness or Congress's policy objec-
    tives."  In re Barr Labs., 
    930 F.2d at 76
    .
    As the TRAC cases make clear, however, we do not grant
    the agency a free pass;  we expect that the Board's effort to
    devise new standards will be undertaken expeditiously, and
    that the agency will resume its acceptance and review of
    merger applications promptly at the end of the 15-month
    moratorium.  See also In re United Mine Workers of Amer-
    ica Int'l Union, 
    190 F.3d 545
    , 550-51, 556 (D.C. Cir. 1999)
    (holding Mine Safety and Health Administration violated
    express statutory timetable for issuing regulation but, instead
    of issuing writ of mandamus, retaining jurisdiction over case
    to assure final agency action without undue further delay).
    Otherwise, as the Board correctly acknowledged at oral argu-
    ment, should BNSF bring a claim of unreasonable delay after
    the 15 months have run, the duration of the moratorium
    would be included in calculating the length of the agency's
    delay.  See Kessler, 
    326 F.2d at
    684 & n.10.
    B.   The Board's Regulatory Authority
    BNSF also challenges the moratorium under 5 U.S.C.
    s 706(2) as an unauthorized, as well as an arbitrary and
    capricious, exercise of the Board's decisionmaking authority.
    It faults the Board for failing to indicate in its Notice of
    Public Hearing and Request for Comments either that it was
    considering the moratorium or that the hearing and comment
    period described in the Notice was actually part of a "rule-
    making" proceeding.  In addition, it argues that insofar as
    the moratorium is designed to maintain the "competitive
    balance" within the industry while the Board re-examines its
    standards for determining the public interest, it is an imper-
    missible attempt by the Board to restrain competition.  Fi-
    nally, BNSF asserts that, assuming there is a need for
    revised merger standards, the Board acted arbitrarily and
    capriciously in imposing the moratorium without first consid-
    ering:  (1) its past experience in processing an application
    while simultaneously pursuing a related rulemaking;  (2) the
    "flexible nature" of its rules regarding the determination of
    the public interest;  and (3) the need for a 15-month as
    opposed to a shorter moratorium.
    In response, the Board characterizes the moratorium as a
    "procedural rule" for which it was not required to give notice
    and an opportunity to comment, see Neighborhood TV, 
    742 F.2d at 638
    , and argues that even if it is a substantive rule,
    the Board has authority under s 721(b)(4) to issue it as an
    "appropriate order" without regard to the APA.  The Board
    further defends the moratorium on its merits as a reasonable
    exercise of the agency's authority to consider, and to devise
    standards to protect, the public interest--not, as BNSF has
    argued, the interests of particular competitors--in regulating
    mergers.
    Finally, invoking its "broad discretion" to decide how best
    to resolve the complex issues that come before it in merger
    cases, the Board explains that without a new set of standards
    already in place it would have no way to determine whether
    an application is complete, or to ensure that a record com-
    piled under the existing standards contains the information
    that will prove necessary under the new standards.  Similar-
    ly, if the Board proceeded with the application before devising
    new standards, other participants in the merger proceeding
    would have to respond to the BNSF/CN proposal without
    knowing the criteria under which the application ultimately
    would be evaluated.
    Having already concluded that imposing the moratorium
    was within the bounds of the Board's statutory authority, for
    the same reasons we also hold that the decision to impose the
    moratorium was neither arbitrary and capricious nor other-
    wise improper.  The Board provided ample opportunity for
    public comment in its proceeding, as well as ample justifica-
    tion for its decision.  Given the Board's "special cognizance"
    over the railroad industry, National Motor Freight Traffic
    Ass'n v. ICC, 
    590 F.2d 1180
    , 1185 (D.C. Cir. 1978), we will
    defer to its "informed judgment," 
    id.,
     regarding the need for
    the moratorium in order to develop new standards for deter-
    mining the public interest in merger application proceedings.
    III. Conclusion
    For the reasons stated above, the petition for review is
    Denied.
    Sentelle, Circuit Judge, dissenting:  Congress has dele-
    gated to the Surface Transportation Board the authority to
    "approve and authorize" railroad mergers in 49 U.S.C.
    s 11324.  In the controversy before us, two major railway
    corporations, Burlington Northern and Santa Fe Railway
    Company, and Canadian National Railway Company, notified
    the Board on December 20, 1999, of their intention to file a
    merger application in three to six months pursuant to a
    notification requirement imposed by the Board in 49 C.F.R.
    s 1180.4(b).  Rather than proceeding to receive the applica-
    tion and process it, the Board issued a Notice of Public
    Hearing and Request for Comments on the future of the
    railroad industry, specifically on the role of major railroad
    consolidations, following which it imposed a moratorium on
    the filing of merger applications.  The Board contends, and
    the court holds, that the moratorium is within the discretion
    of the Board under the applicable statutes analyzed in the
    framework of Chevron U.S.A. Inc. v. Natural Resources
    Defense Council, 
    467 U.S. 837
     (1984).  I respectfully dissent.
    First, I seriously question whether Chevron provides the
    appropriate framework for analysis.  Under that familiar
    rubric, as the Court reminds us, we are to proceed in a two-
    step analysis, asking in step one whether Congress "has
    directly spoken to the precise question at issue," 
    id. at 842
    ;
    and in step two, whether the agency's interpretation is "based
    on a permissible construction of the statute," 
    id. at 843
    , in
    which case we are to defer to it.  While we have repeatedly
    applied Chevron in the context of various forms of agency
    interpretation, the Supreme Court has more recently cau-
    tioned that its application should not be automatic where "an
    interpretation" is "not one arrived at after, for example, a
    formal adjudication or notice-and-comment rulemaking."
    Christensen v. Harris County, 
    120 S. Ct. 1655
    , 1662 (2000).
    Although the Board undertook a notice and comment pro-
    ceeding in the present case, the moratorium imposed by the
    Board does not purport to be the product of that process, but
    only a hesitation while the Board conducts further notice and
    comment proceedings.  I therefore question the applicability
    of Chevron.  However, I do not contend that we must decide
    that Chevron is inapplicable, because in my view, even if it is
    applied, the moratorium is beyond the power of the Board.
    At Chevron step one, I will concede that the statute is not
    free of ambiguity.  To that extent, I accept the majority's
    statement on its face that "[t]he statute does not address the
    unanticipated conflict this case presents between the process
    by which the Board is to review a proposed merger and the
    purposes for which the Board is to conduct its review."  Maj.
    Op. at 8. In this case that is another way of saying, "the
    statute is silent as to the Board's authority to impose a
    moratorium, and we therefore examine the relevant statutory
    provisions under step two of Chevron."  However, in accept-
    ing that proposition, I do note that as a general matter, the
    absence of a statutory grant of power is not an ambiguity or
    silence on the question of whether Congress has granted such
    a power.  See, e.g., Adams Fruit Co. v. Barrett, 
    494 U.S. 638
    ,
    649 (1990);  Backcountry Against Dumps v. EPA, 
    100 F.3d 147
    , 150-51 (D.C. Cir. 1996);  Ethyl Corp. v. EPA, 
    51 F.3d 1053
    , 1060 (D.C. Cir. 1995).  As we have noted repeatedly in
    the past, "to suggest ... that Chevron step two is implicated
    any time a statute does not expressly negate the existence of
    a claimed administrative power (i.e. when the statute is not
    written in 'thou shalt not' terms), is both flatly unfaithful to
    the principles of administrative law ... and refuted by prece-
    dent."  Railway Labor Executives' Ass'n v. National Media-
    tion Bd., 
    29 F.3d 655
    , 670-71 (D.C. Cir. 1994) (en banc);  see
    also Backcountry Against Dumps, 
    100 F.3d at 151
    ;  Ethyl
    Corp., 
    51 F.3d at 1060
    ;  Oil, Chem. and Atomic Workers Int'l
    Union v. NLRB, 
    46 F.3d 82
    , 90 (D.C. Cir. 1995);  American
    Petroleum Inst. v. EPA, 
    52 F.3d 1113
    , 1120 (D.C. Cir. 1995).
    "[W]ere courts to presume a delegation of power absent an
    express withholding of such power, agencies would enjoy
    virtually limitless hegemony, a result plainly out of keeping
    with Chevron and quite likely with the Constitution as well."
    Backcountry Against Dumps, 
    100 F.3d at 151
     (internal quo-
    tation marks omitted).  Therefore, I am concerned that we
    not be too facile in accepting the proposition that Congress
    has left an ambiguity as to a power grant simply by not
    mentioning it.  Again, however, I will accept the majority's
    assertion of ambiguity, because I think even accepting it does
    not compel the majority's result.  That is, if we reach step
    two of Chevron and examine whether the interpretation is a
    permissible, i.e. reasonable, one, I would hold that it is not.
    As I understand the rationale of Chevron, it is that Con-
    gress by entrusting an ambiguous statutory provision to the
    elucidating authority of an agency implicitly delegates to the
    agency the power to enter authoritative constructions for the
    purpose of accomplishing the goals of the "statutory scheme
    it is entrusted to administer."  Chevron, 
    467 U.S. at 844
    ;  see
    also Adams Fruit, 
    494 U.S. at 649
     ("A precondition to
    deference under Chevron is a congressional delegation of
    administrative authority.").  In determining whether an inter-
    pretation subjected to Chevron step two analysis is a reason-
    able exercise of the implicit grant created by the ambiguity,
    we are to "examin[e] a particular statutory provision" in
    " 'context and with a view to [its] place in the overall statuto-
    ry scheme.' "  Food and Drug Admin. v. Brown and Wil-
    liamson Tobacco Corp., 
    120 S. Ct. 1291
    , 1300-01 (2000)
    (quoting Davis v. Michigan Dep't of Treasury, 
    489 U.S. 803
    ,
    809 (1989)).
    The statutory scheme under which the Surface Transporta-
    tion Board operates is not limited to directing the Board to
    review mergers with the mandate to consider the public
    interest, and authorizing the Board to promulgate regulations
    to accomplish that command.  As the majority lays out,
    Congress also mandated that the Board is to receive filings of
    merger applications, reject them if incomplete, or give notice
    of their filing if complete, within thirty days.  See 49 U.S.C.
    s 11325(a) (Supp. III 1997).  The Board then undertakes an
    evidentiary proceeding, which it must conclude within one
    year of the publication of the notice.  See 
    id.
     s 11325(b)(3).
    Lastly, the Board must issue a final decision within ninety
    days of the conclusion of that proceeding.  
    Id.
      In other
    words, Congress included very specific statutory directives
    concerning the process and time frame for the Board to
    accomplish its adjudicatory task.  The fact that Congress, in
    enacting these provisions, shortened the statutory review
    period from 31 to 16 months further supports the conclusion
    that Congress intended the merger review process to be
    completed expeditiously within the statutory deadlines.  Com-
    pare ICC Termination Act of 1995, Pub. L. No. 104-88,
    s 102(a), 
    109 Stat. 803
    , 841-42 (codified at 49 U.S.C. s 11325),
    with Railroad Revitalization and Regulatory Reform Act of
    1976, Pub. L. No. 94-210, s 402, 
    90 Stat. 31
    , 62-63.
    In the interpretation before us, rather than determining
    the application of a theretofore ambiguous provision in such a
    fashion as to carry out the apparent will of Congress, the
    Board appears to me to have taken the license granted it
    under Chevron as an invitation to distort the language of
    Congress in such a way as to defeat the unambiguous will of
    that body.  Granted, Congress places deadlines only upon the
    processing of applications once filed.  See 49 U.S.C.
    s 11325(a), (b).  However, Congress also provides for the
    refusal only of incomplete applications.  See 
    id.
     s 11325(a).
    It seems to me unreasonable to believe that Congress could
    have intended to expedite all completed applications by dead-
    lines on handling of such filed applications only to leave the
    agency with the unbridled discretion to thwart the congres-
    sional mandate of expedition by the exercise of a power
    nowhere expressly granted--to refuse filing in the first in-
    stance.
    Despite the clarity and specificity with which Congress
    articulated its wish that the merger review process be com-
    pleted expeditiously within a given series of deadlines, the
    majority nevertheless concludes that, in combination, two
    separate lines of judicial precedent permit the Board to
    disregard an express congressional mandate.  In one series of
    cases, the Supreme Court and we have recognized agency
    discretion to delay considering applications where no manda-
    tory statutory deadline scheme such as the one at issue here
    existed.  See, e.g., Permian Basin Area Rate Cases, 
    390 U.S. 747
    , 777-81 (1968) (involving only an optional five-month
    suspension of proposed rates, plus the authority to reverse
    rates retroactively should the agency's investigation exceed
    five months);  Westinghouse Elec. Corp. v. NRC, 
    598 F.2d 759
    , 771-76 (3d Cir. 1979) (noting that the statute in question
    was "free of close prescription ...  as to how [the agency]
    shall proceed in achieving the statutory objectives") (quoting
    Siegel v. Atomic Energy Comm'n, 
    400 F.2d 778
    , 783 (D.C.
    Cir. 1968));  Krueger v. Morton, 
    539 F.2d 235
    , 239-40 (D.C.
    Cir. 1976) (containing no mention of statutory or regulatory
    deadlines of any sort);  Pennsylvania v. Lynn, 
    501 F.2d 848
    ,
    854-61 (D.C. Cir. 1974) (mentioning no statutory deadline
    which might contradict the suspension in question, and recog-
    nizing instead evidence of congressional acceptance of the
    moratorium's legality).  Notably, moreover, a number of the
    cases cited by both the Board and the majority as supporting
    the application of the same proposition here do not involve
    challenges to the authority of the agencies in question to
    freeze applications, but instead ask only whether the agencies
    followed proper procedure or acted arbitrarily and capricious-
    ly.  See Neighborhood TV Co. v. FCC, 
    742 F.2d 629
    , 634-40
    (D.C Cir 1984) (raising no statutory authority issue at all, but
    rather focusing upon whether the agency's decision to freeze
    applications violated Administrative Procedure Act require-
    ments);  Kessler v. FCC, 
    326 F.2d 673
    , 679-85 (D.C. Cir. 1963)
    (mentioning no statutory or regulatory deadlines, and consid-
    ering only whether the agency followed proper procedure or
    was arbitrary and capricious in opposing an applications
    freeze).
    Although it acknowledges that these various cases did not
    involve specific timelines for processing applications, see Maj.
    Op. at 11, the majority nevertheless points to another group
    of cases stemming from Telecommunications Research and
    Action Center v. FCC, 
    750 F.2d 70
     (D.C. Cir. 1984) (TRAC),
    in which we have weighed six factors to determine whether to
    take the extraordinary step of granting mandamus relief
    where agencies have failed to satisfy specific statutory dead-
    lines.  Granted, as the majority observes, in such cases, we
    have previously declined to use our equitable powers to
    micromanage an agency's efforts to balance its priorities,
    even in the face of a clear statutory timetable.  See, e.g., In re
    Barr Lab., Inc., 
    930 F.2d 72
    , 76 (D.C. Cir. 1991) (viewing the
    agency delay in question as a consequence of the agency's
    allocation of its budgetary resources).  TRAC and Barr Labo-
    ratories did not involve an agency's express interpretation of
    its governing statute, however.  Unlike those cases, this
    present one does not merely involve an agency that has
    simply failed to act within the statutory time frame.  Rather,
    the Board has issued an order affirmatively asserting that
    particular statutory provisions implicitly delegate to it the
    authority to disregard the express commands of other statu-
    tory provisions as it sees fit.  It is that pronouncement, and
    not merely the arguably inequitable consequences of the
    Board's delay, that we are called upon to consider here.  In
    sum, none of the cited precedents dictates the outcome
    reached by the court today.
    I also find unconvincing the argument of the agency that it
    could not accept the application because it did not have in
    place proper rules under which to process the same.  For the
    most part, the Board has had the same rules since 1982.
    Granted, it has expressed its intent to modify those rules.
    Whenever that modification is completed, some application
    will have been the last processed under the old rules, some
    other the first under the new.  I see nothing other than
    arbitrariness and caprice to justify requiring the present
    application to fill the role of the latter rather than the former.
    I respectfully dissent.
    

Document Info

Docket Number: 00-1115

Filed Date: 7/14/2000

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (24)

Adams Fruit Co. v. Barrett , 110 S. Ct. 1384 ( 1990 )

railway-labor-executives-association-american-railway-and-airway , 29 F.3d 655 ( 1994 )

Christensen v. Harris County , 120 S. Ct. 1655 ( 2000 )

national-motor-freight-traffic-association-inc-v-the-interstate-commerce , 590 F.2d 1180 ( 1978 )

paul-siegel-v-atomic-energy-commission-and-united-states-of-america , 400 F.2d 778 ( 1968 )

westinghouse-electric-corporation-in-78-118889-78-189495-scientists , 598 F.2d 759 ( 1979 )

Chevron U. S. A. Inc. v. Natural Resources Defense Council, ... , 104 S. Ct. 2778 ( 1984 )

Food & Drug Administration v. Brown & Williamson Tobacco ... , 120 S. Ct. 1291 ( 2000 )

Davis v. Michigan Department of the Treasury , 109 S. Ct. 1500 ( 1989 )

Backcountry Against Dumps and Donna Tisdale v. ... , 100 F.3d 147 ( 1996 )

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State ... , 103 S. Ct. 2856 ( 1983 )

john-forester-v-consumer-product-safety-commission-of-the-united-states , 559 F.2d 774 ( 1977 )

In Re United Mine Workers of America International Union , 190 F.3d 545 ( 1999 )

american-petroleum-institute-and-national-petroleum-refiners-association-v , 52 F.3d 1113 ( 1995 )

Commonwealth of Pennsylvania v. James T. Lynn, Secretary of ... , 501 F.2d 848 ( 1974 )

Max L. Krueger v. Rogers C. B. Morton, Secretary of the ... , 539 F.2d 235 ( 1976 )

Ethyl Corporation v. Environmental Protection Agency, ... , 51 F.3d 1053 ( 1995 )

telecommunications-research-and-action-center-v-federal-communications , 750 F.2d 70 ( 1984 )

Burlington Truck Lines, Inc. v. United States , 83 S. Ct. 239 ( 1962 )

Frederick County Fruit Growers Association, Inc. v. Lynn ... , 968 F.2d 1265 ( 1992 )

View All Authorities »