10 F.4th 869
D.C. Cir.2021Background
- The Rail Safety Improvement Act of 2008 required DOT/FRA to promulgate regulations requiring qualifying railroads to adopt systemwide Risk Reduction Programs (RRP) that include a fatigue management plan; FRA authority was delegated to the FRA Administrator.
- The Act required an FRA study on whether information compiled for RRPs should be withheld from discovery; FRA contracted Baker Botts, which concluded certain RRP materials should be protected.
- After notice-and-comment and public hearings, FRA issued the RRP Final Rule in 2020, creating performance-based RRP requirements and protecting from discovery information compiled solely to plan/implement/evaluate RRPs; FRA said fatigue plans would be addressed in a separate rulemaking.
- Petitioners (two labor unions and an association of rail labor attorneys) challenged the RRP Rule on multiple grounds: untimely promulgation, arbitrary/contrary-to-law piecemeal treatment of fatigue plans, misuse of performance-based standards and information-protection provisions conflicting with the statutory safety priority, and alleged conflicts of interest in selecting Baker Botts; they sought supplementation of the administrative record.
- The D.C. Circuit reviewed the final agency action under the APA and denied the petition for review, holding petitioners’ claims lacked merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of rulemaking (12-month statutory window) | FRA missed the 12‑month deadline after notice of proposed rulemaking; rule is procedurally unlawful and must be vacated. | The missed deadline is not jurisdictional; statute provides no consequence, ordinary remedy is mandamus for delay; lack of timely completion does not strip FRA of authority. | Court: Missed deadline alone does not require vacatur; petitioners should have sought compel action; rule remains valid. |
| Fatigue management plans handled in separate rulemaking | Statute requires RRPs to include fatigue plans; excluding them from RRP Rule is arbitrary and unlawful. | FRA may regulate incrementally under the one‑step‑at‑a‑time doctrine; FRA explained statutory obligation and its plan to issue a separate fatigue rule. | Court: FRA acted reasonably to proceed piecemeal; not arbitrary or contrary to law. |
| Performance‑based standards and information‑protection vs. §103(c) safety priority | Performance standards plus protection of RRP materials will weaken oversight and allow railroads to hide hazards, undermining safety priority. | Performance standards allow tailoring to diverse operations; limited confidentiality encourages candid hazard reporting and better safety outcomes. | Court: FRA reasonably chose performance‑based approach and limited protections; choices are consistent with prioritizing safety. |
| Selection of Baker Botts and administrative record supplementation | FRA failed adequate conflict checks; Baker Botts biased for railroads; correspondence/proposals must be added to record and rule vacated. | FRA complied with Federal Acquisition Regulations, found no disqualifying conflict, and did not rely on withheld deliberative documents; no evidence of bad faith. | Court: FRA reasonably assessed conflicts; petitioners showed no strong evidence of impropriety; denied supplementation and vacatur. |
Key Cases Cited
- Dolan v. United States, 560 U.S. 605 (2010) (distinguishes jurisdictional from non‑jurisdictional statutory deadlines)
- Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) (courts should not treat every statutory timing directive as jurisdictional)
- Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145 (D.C. Cir. 2010) (agency missed statutory timing but action not automatically invalid)
- Monroe Energy, LLC v. EPA, 750 F.3d 909 (D.C. Cir. 2014) (declining vacatur for missed deadline absent contrary congressional intent)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (remedy for unlawfully withheld or unreasonably delayed agency action is mandamus to compel)
- Ctr. for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013) (permits incremental, one‑step‑at‑a‑time rulemaking)
- Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455 (D.C. Cir. 1998) (upholding piecemeal regulation where paired rules achieve statutory goal)
- Bhd. of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83 (D.C. Cir. 2020) (agency must reasonably explain regulatory actions)
- BNSF Ry. Co. v. U.S. Dep’t of Transp., 566 F.3d 200 (D.C. Cir. 2009) (APA standards apply to DOT/FRA final actions)
- Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (limits on supplementing the administrative record)
- San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) (predecisional deliberative materials excluded absent strong showing of bad faith)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (judicial review of administrative record and role of deliberative process privilege)
- CTS Corp. v. EPA, 759 F.3d 52 (D.C. Cir. 2014) (arguments not developed in briefing may be forfeited)