BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN, A DIVISION OF THE RAIL CONFERENCE OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AND TRANSPORTATION DIVISION OF THE INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR, RAIL AND TRANSPORTATION WORKERS, PETITIONERS v. FEDERAL RAILROAD ADMINISTRATION AND UNITED STATES DEPARTMENT OF TRANSPORTATION, RESPONDENTS KANSAS CITY SOUTHERN RAILWAY COMPANY AND TEXAS MEXICAN RAILWAY COMPANY, INTERVENORS
No. 18-1235
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2019 Decided August 28, 2020
On Petition for Review of a Final Decision of the Federal Railroad Administration
Kathy L. Krieger argued the cause for petitioners. With her on the briefs were Michael S. Wolly and Lawrence M. Mann.
Jaynie Lilley, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the briefs were H. Thomas Byron III, Attorney, Steven G. Bradbury, General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, Joy K. Park, Senior Trial Attorney, and Rebecca S. Behravesh, Senior Attorney, Federal Railroad Administration.
Aaron S. Markel argued the cause for intervenors. With him on the brief was Donald J. Munro.
Before: TATEL, MILLETT, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
Opinion concurring in part and dissenting in part filed by Circuit Judge TATEL.
We grant the petition in part and vacate and remand in part because of the Railroad Administration‘s failure to provide a reasoned explanation for its approval of the materially altered engineer certification program administered by one of the railroads. As to that program approval, we agree with the Railroad Administration that it took final agency action and entered its decision, as required for jurisdiction to attach under the Hobbs Act,
timely, and that the Railroad Administration‘s wholly unexplained approval of material decisions directly affecting railroad safety was arbitrary and capricious. We dismiss the petition‘s remaining challenges for lack of jurisdiction.
I
A
1
Congress‘s effort to increase rail safety included ensuring that only those locomotive engineers and train conductors who met federal training and safety standards could operate trains in the United States. To that end, Chapter 201 obligates the Secretary to “prescribe regulations and issue orders to establish a program requiring the * * * certification * * * of any operator of a locomotive,”
Congress defined a covered “railroad carrier” subject to those requirements as “a person providing railroad transportation, except that, upon petition by a group of commonly controlled railroad carriers that the Secretary determines is operating within the United States as a single, integrated rail system, the Secretary may by order treat the group of railroad carriers as a single railroad carrier[.]”
2
The Secretary has delegated to the Federal Railroad Administration the authority to “[c]arry out the functions and exercise the authority vested in the Secretary by * * * Subtitle V,”
In exercising its delegated authority, the Railroad Administration has promulgated regulations requiring “[e]ach railroad” to “have in effect a written program for certifying the qualifications of” both engineers and conductors.
A railroad‘s certification programs must ensure that the railroad‘s engineers and conductors satisfy baseline requirements set by the Railroad Administration in Part 240
(engineers) and Part 242 (conductors) of Title 49 of the Code of Federal Regulations. See
Each railroad must “submit its written certification program and a description of how its program conforms to the specific [regulatory] requirements” to the Railroad Administration “for approval at least sixty days before commencing operations.”
The Railroad Administration does not issue any formal documentation approving a railroad‘s written certification program. Rather, the Railroad Administration has adopted a passive approval system. Under that scheme, if the Railroad Administration does not notify the railroad—in writing and within thirty days of submission—that the written certification program fails to meet the minimum regulatory criteria, then the program “is considered approved
Railroad Administration‘s regulations are explicit that “[n]o formal approval document [regarding certification program submissions] will be issued by the [Administration].”
Any material modifications to a previously approved certification program must also be submitted for the Railroad Administration‘s approval either thirty days (engineer programs) or sixty days (conductor programs) before implementation. See
When a railroad submits an original or modified conductor certification program to the Railroad Administration, it must simultaneously serve a copy of its submission on the president of every labor organization that represents the railroad‘s employees who are subject to Part 242.
To enforce compliance with the certification requirements, Railroad Administration regulations prohibit any person from operating a locomotive as an engineer or serving as a conductor unless that person has been certified by a railroad under a written program approved by the Administration. See
Any person may petition the Railroad Administration for a formal waiver of compliance with the engineer certification requirements of Part 240 or the conductor certification requirements of Part 242. See
3
In certain circumstances, Railroad Administration regulations permit a railroad‘s
entire training regimen for new hires. As relevant here,
A railroad that is considering certification of a person as a qualified engineer [or conductor] may rely on determinations made by another railroad concerning that person‘s qualifications. The railroad‘s certification program shall address how the railroad will administer the training of previously uncertified engineers [or conductors] with extensive operating experience or previously certified engineers [or conductors] who have had their certification expire. If a railroad‘s certification program fails to specify how to train a previously certified engineer [or conductor] hired from another railroad, then the railroad shall require the newly hired engineer [or conductor] to take the hiring railroad‘s entire training program.
For a railroad to rely on another railroad‘s engineer certification, it must first determine that (i) the prior certification is still valid; (ii) the prior certification was for the same classification of service as the certification being issued; (iii) the person has received training on and visually observed the physical characteristics of the new territory; (iv) the person has demonstrated the necessary knowledge concerning the new railroad‘s operating rules; and (v) the person has demonstrated the necessary performance skills concerning the new railroad‘s operating rules. See
Other Railroad Administration regulations specifically provide that if a United States railroad “conducts joint operations with a Canadian railroad,” the United States railroad may certify employees of the Canadian railroad based on those employees’ satisfaction of Canadian regulatory requirements. See
Finally, in addition to requiring railroads to train and certify the engineers and conductors whom they employ, the Railroad Administration‘s regulations also require railroads and their employees, among other things, to comply with standards for (i) the control of alcohol and drug use by employees, see
The Railroad Administration may issue waivers of compliance for any part of those regulations as well, subject to the same procedures for waivers of certification requirements. See, e.g.,
B
Kansas City Southern (“Southern Company“) is a holding company that owns several railroads operating trains within North America. Collectively, those railroads operate rail lines that run from Mexico City, Mexico, across the United States–
Mexico
Laredo sits on the northern bank of the Rio Grande River, which is part of the natural border between the United States and Mexico. Trains crossing the border at Laredo enter or exit the United States by way of the International Bridge, which runs north–south over the Rio Grande.
Three of Southern Company‘s railroads—two that operate in the United States and one that has historically operated only in Mexico—are relevant to this case.
The two railroads that operate in the United States are Kansas City Southern Railway Company (“Kansas City Railway“) and its wholly owned subsidiary Texas-Mexican Railway Company (collectively, “the Railroads“). The Railroads own tracks and operate trains on the United States side of the border at Laredo and into the interior of the United States.
Kansas City Southern de México (“de México Railway“) is the Railroads’ Mexican affiliate. It operates the rail line that runs from Mexico City to Laredo, which provides exclusive rail access to the United States border crossing at Laredo from the Mexican side of the border. The Railroads do not own or control de México Railway; they are simply affiliated with it.
Historically, de México Railway crews operated trains only in Mexico, and not in the United States. De México Railway‘s operations in Mexico and up to the border did not require it to certify its engineers or conductors under a program approved by the Railroad Administration.
As a result of Mexico‘s and the United States’ differing certification regimes, Southern Company trains that crossed the border at Laredo have long “interchanged” in the middle of the International Bridge. That is, rail cars were transferred from one railroad to another, and a new rail crew took over.
Specifically, southbound trains operated by the Railroads heading into Mexico stopped in the middle of the International Bridge so that de México Railway crews could recouple the rail cars and take them into Mexico. Northbound trains operated by de México Railway heading into the United States similarly stopped in the middle of the bridge so that the Railroads’ crews could recouple the rail cars and take them into the United States. Those Railroads’ crews would operate the northbound trains to Kansas City Railway‘s Laredo Train Yard, which is roughly 9.2 miles from the International Bridge. At the Train Yard, new crewmembers working for the Railroads would take the rail cars on their journeys elsewhere in the United States, while the disembarking crew would be shuttled back to the International Bridge to take over another northbound train.
The dedicated crews that operated the Railroads’ trains back and forth on the 9.2-mile stretch of track between the border and the Laredo Train Yard were busy. They commonly operated hundreds of northbound and southbound trips every month along that route.
Those crewmembers are represented by two labor organizations: (i) the Brotherhood of Locomotive Engineers and Trainmen, a division of the Rail Conference of the International Brotherhood of Teamsters, and (ii) the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (collectively, “the Unions“).
C
According to the Railroad Administration and a report by the Government Accountability Office, this longstanding practice
Specifically, stopping each train in the middle of the International Bridge to swap crews caused significant backups on highway–rail crossings in Laredo. Because the trains can be several miles long, a single one stopped on the bridge could stretch all the way to nearby Interstate 35, a major highway that runs through Laredo and intersects with the rail line. Trains were sometimes forced to sit on the bridge for long periods of time, waiting for a new crew to arrive and take over. For example, the Railroads’ crews that delivered northbound trains from the border to the Laredo Train Yard were then driven back to the border to pick up the next northbound train, and they were sometimes delayed at the Train Yard or on the way back to the border by (ironically enough) bridge-induced traffic congestion. All things considered, crew changes on the bridge could sometimes take two to three hours.
On top of those crew change delays, when trains entered the United States from Mexico, the Railroads’ crews that assumed control were generally required to perform what is known as a “Class I brake test.” See
D
Over the years, the Railroad Administration and the Railroads have tried to streamline the journey of trains over the International Bridge to reduce delays and traffic congestion.
First, in 2008, Kansas City Railway obtained from the Railroad Administration a formal waiver excusing the Railroads from having to perform a Class I brake test on the International Bridge. Instead, only a less time-consuming Class III brake test had to “be performed before departing the interchange point[.]” J.A. 141. Compare
Kansas City Railway‘s brake-test waiver was effective for a five-year period. But the Railroad Administration has twice extended the waiver, and it is still in effect today. See 83 Fed. Reg. 35,052 (July 24, 2018).
Second, the Railroads proposed a plan by which they would grant de México Railway operating rights over the 9.2 miles of track between the International Bridge and the Laredo Train Yard. As part of that plan, Kansas City Railway would certify de México Railway engineers and conductors through an abbreviated training program, given the de México employees’ experience working in Mexico. Those certifications would allow de México engineers and conductors to operate north- and southbound trains inside the United States on that stretch of track. That meant the Railroads’ crews would operate northbound trains only after they arrived at the Laredo Train Yard, and southbound trains no further than that point.
As for brake testing (which is required only of the northbound trains entering the United States), the plan provided that de México Railway crews would avail themselves
On October 26, 2016, Kansas City Railway described its proposed crew change plan to a Railroad Administration official over email and asked for a meeting to discuss it. At the official‘s request, Kansas City Railway forwarded its draft plan, explaining that it was “not inclusive of everything that will need to take place, but [was] intended to start a dialogue.” J.A. 44.
That draft plan—entitled “International Crew Pilot Program Draft Implementation Plan“—is dated October 27, 2016. J.A. 47. Its stated purpose is to identify “the steps for Certification, Qualification, and Operation for [Kansas City Railway‘s] vision of the International Crew Pilot Program” intended “to operate between border yards in Mexico and the United States without the need to stop on the International Bridge for any reason.” J.A. 47. The draft plan describes de México Railway crew members as “experienced train operators that are certified to operating standards in Mexico,” which, the draft asserted without elaboration or citation, “are similar to those required by” the Railroad Administration. J.A. 47. The Draft Plan added that de México Railway “crew members will be certified, to operate trains in the [United States], under [Kansas City Railway‘s] approved
Appendix A to the Draft Plan, entitled “FRA Compliance Document,” lists various parts of the Railroad Administration‘s regulations and “how [Kansas City Railway] will comply with information/audit requests from the” Railroad Administration. J.A. 50. In that regard, the Draft Plan points to, among other things, the regulations governing alcohol and drug use, railroad communications, hours of service limitations, and brake maintenance and testing.
Communications between the Railroads and the Railroad Administration about the proposed plan continued into 2017.
In June of that year, the Railroad Administration issued a public report stating that the Railroads had “spent the past three years attempting to” certify a group of de México Railway crew members to operate trains in the United States “in a manner that is acceptable from a regulatory standpoint, in which [the Railroad Administration] would approve Mexican train crew certifications without the need for a waiver” of safety regulations. A.R. 1774.
That same month, a staff member for Congressman Henry Cuellar, whose congressional district includes Laredo, emailed a Railroad Administration official about the proposed crew change procedures. The staff member inquired whether the Railroad Administration had or would be approving the new procedures and when they would take effect.
The Railroad Administration official forwarded the email internally. Another Railroad Administration official confirmed to his colleague that, in July 2018, de México Railway crews would indeed begin operating trains in the United States on the 9.2-mile stretch of track between the International Bridge and the Laredo Train Yard. J.A. 558–559.
The Railroad Administration official‘s internal email further noted that, under the new procedure, southbound trains would no longer have any reason to stop on the bridge (though they would “still proceed at 5 mph across the bridge to be x-rayed by [Customs and Border Patrol]“). J.A. 558.
Finally, the official stated that the Railroad Administration had “done extensive inspections and review of the plan,” and that “Mexican crews will be in compliance with all [Railroad Administration] regulations.” J.A. 559.
On August 16, 2017, the Railroad Administration completed a self-described “audit” to determine whether Kansas City Railway could certify de México Railway engineers and conductors using an abbreviated curriculum within its certification programs. See J.A. 390–391.
In that audit, the Railroad Administration concluded that “no changes [were] necessary” to Kansas City Railway‘s five-year-old conductor certification program to allow it to certify de México Railway conductors. J.A. 390. The audit noted that
Kansas City Railway‘s existing conductor certification program already included language tracking
For Kansas City Railway‘s existing engineer certification program, however, the Railroad Administration determined that the railroad could not certify de México engineers under an abbreviated curriculum because some “added language to the engineer program” was necessary and “would need to be vetted * * * and approved by” Administration officials. J.A. 391. Namely, the audit called for language “explicitly address[ing] how [de México] engineers working into the [United States] would be trained and certified.” J.A. 391. The Railroad Administration noted that Kansas City Railway had already developed language in consultation with an Administration official “to amend [its] program that would recognize the experience” of de México engineers and “allow [them] to be trained under an amended training program.” J.A. 390. The intent of the added language was “to take advantage of the previously trained/experienced [de México] engineers and avoid having to start retraining from ground zero.” J.A. 390. The audit added that a Railroad Administration attorney “would need time to determine if [the Administration] could recognize [de México Railway] engineers[‘] experience as being compatible with what we accept from other railroads in the United States.” J.A. 391 (emphasis added). But see J.A. 391 (audit team noting that it “feels” full training “would be a disproportionate amount of training for [the] train movements into the United States“). The
audit team said nothing about the prospect of a railroad certifying engineers that it did not employ and who worked for a foreign affiliate that the domestic railroad did not claim to control. See J.A. 391.
Consistent with the results of that internal audit, which were not publicly released, Kansas City Railway did not revise its previously approved conductor certification
The revised engineer certification program states that Kansas City Railway “will issue all required certificates for employees of its affiliate or subsidiary companies,” including de México Railway. J.A. 520. The revised program also provides that “[e]ngineer candidates that work for a [Kansas City Railway] affiliate * * * in the capacity of Locomotive Engineer and have previous training on the railroad‘s operating and safety rules may receive an accelerated training curriculum based on their proficiency by a qualified engineer instructor.” J.A. 519; see also J.A. 515 (section entitled “Initial Certification of Foreign Locomotive Engineers“); J.A. 519 (noting that “[a]ll international engineers will be kept on a separate roster from all [Kansas City Railway] locomotive engineers“).2
Thirty days came and went, and Kansas City Railway received no communication from the Railroad Administration rejecting its revised Part 240 engineer certification proposal. As a result, the revised engineer certification program was passively approved by the Railroad Administration on February 19, 2018, and the Administration authorized Kansas City Railway to implement it. See
A number of de México Railway crewmembers completed their training, medical examinations, background checks, drug and alcohol certifications, and field testing, and were certified under Kansas City Railway‘s modified engineer and existing conductor certification programs to operate trains in the United States.
E
The Unions have consistently opposed Kansas City Railway‘s efforts to certify de México Railway‘s crews to operate trains on the 9.2-mile stretch of track between the International Bridge and the Laredo Train Yard. In May 2018, Kansas City Railway informed the Unions that it would implement its new crew change procedure using de México Railway crews on July 9, 2018.
also J.A. 533. But there is no evidence that Kansas City Railway ever submitted a revised Part 242 program for certifying conductors. Nor does the record indicate that the Railroad Administration ever considered or approved a revised conductor certification program.
The Unions threatened to strike on that date, arguing both that the governing collective bargaining agreements did not permit the Railroads to move the interchange point unilaterally and that the use of de México Railway crews in the United States would violate Railroad Administration regulations.
Shortly thereafter, the Railroads filed suit in the United States District Court for the Southern District of Texas to enjoin the impending strike. See Kansas City S. Ry. Co. v. Brotherhood of Locomotive Eng‘rs & Trainmen, No. 5:18-cv-00071, 2018 WL 7253969, at *1 (S.D. Tex. July 6, 2018). The Railroads argued that the Railway Labor Act,
At an evidentiary hearing in the Southern District of Texas litigation on July 3, 2018, Kansas City Railway‘s Vice President testified publicly about the Railroad Administration‘s non-public August 2017 audit and subsequent approval of the railroad‘s modified Part 240 engineer certification program. Specifically, he disclosed that Kansas City Railway had “developed a written plan” to certify de México Railway engineers and conductors, and “that the [Railroad Administration] audited[,] reviewed and accepted” those plans and concluded that they authorized Kansas City Railway “to certify [de México Railway] engineers and conductors to operate in the United States.” Transcript of Motion Hearing at 68–69, Kansas City, 2018 WL 7253969 (No. 5:18-cv-00071), ECF No. 24.
On July 6, 2018, a few days before the new crew change procedure was set to begin, the district court granted the Railroads’ motion for a preliminary injunction and enjoined the Unions from striking. See Kansas City, 2018 WL 7253969, at
*1, *4, *7. At the parties’ joint request, the district court made the injunction permanent.
On July 9, 2018, the new crew change procedures were implemented, with de México Railway crews certified by Kansas City Railway operating trains for the first time on the 9.2-mile stretch of track between the International Bridge and the Laredo Train Yard. The Railroad Administration publicly participated in the rollout. See A.R. 2150 (Kansas City Railway document noting that Railroad Administration staff have “been in Laredo and activ[ely] participated in the program since launch“); id. (also noting that Railroad Administration “observers have ridden trains with” the de México Railway crewmembers and inspected trains at the Laredo Train Yard, where the Unions’ members take over/disembark the affected trains).
F
On September 4, 2018, the Unions filed a petition for review with this court under the
More specifically, the petition explains that it challenges, among other things, (i) the Railroad Administration‘s “authorization” of “the training, testing and certification of [de México Railway‘s] non-U.S. locomotive engineers and conductors,” and (ii) “the implementation of [de México Railway‘s] operations taking place in Laredo, Texas on or after July 9, 2018, including participation, monitoring and/or observation by [Railroad Administration] personnel.” Petition at 3.
As to the Railroad Administration‘s approval of Kansas City Railway‘s modified engineer program—which allowed the railroad to certify de México Railway engineers under an abbreviated training curriculum—the Unions argue that the approval must be set aside for two reasons.
First, the Unions contend that, under the relevant statutes and regulations, it was unlawful to approve a certification program permitting one railroad to certify employees of a foreign affiliate railroad that it does not control. In the Unions’
Second, the Unions dispute whether a certification program may deploy an abbreviated curriculum and training protocol to engineers with operating experience only in Mexico, where they are governed by a different regulatory regime, and lacking any prior certification in the United States. See Unions Br. 39; Unions Reply Br. 23.
The Unions did not attach the challenged Railroad Administration decisions or orders to their petition. Instead, they explained that the relevant agency “actions have been taken * * * without public notice or other published documentation,” leaving the Unions “unable to cite or attach a copy of a formal [Administration] order, waiver, or other Agency decision.” Petition at 3. The Unions then assert, on information and belief, that the Railroad Administration “maintains internal records reflecting and/or relating to the Agency‘s authorization [of] and permission” for the challenged actions. Id.
The Railroads intervened in support of the Railroad Administration. Both the Railroad Administration and the Railroads moved to dismiss the Unions’ petition for lack of jurisdiction, contending that it failed to identify and timely challenge any final agency action of the Railroad Administration subject to judicial review.
That motion to dismiss and the merits of the Unions’ petition are now before us.
II
We determine de novo whether we have jurisdiction under the
Congress subjected “final action of the Secretary of Transportation” under the statutory provisions at issue here to judicial review exclusively under the Hobbs Act. See
The Hobbs Act, in turn, invests federal courts of appeals (other than the Federal Circuit) with “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” such final agency actions.
The Hobbs Act‘s requirements that the agency action be final and that the petition timely filed are jurisdictional. See Blue Ridge, 668 F.3d at 753 (finality requirement); see also Western Union Tel. Co. v. FCC, 773 F.2d 375, 376 (D.C. Cir. 1985) (timeliness requirement).
Applying those terms, we have jurisdiction to review the Unions’ challenge to the Railroad Administration‘s final action approving
A
We begin with the question of our jurisdiction over the Unions’ challenge to the approval of Kansas City Railway‘s modified engineer certification program.
1
As to the question of finality, the Railroad Administration‘s approval of Kansas City Railway‘s revised engineer certification program is a final agency action reviewable under the Hobbs Act,
Agency actions qualify as final if they “mark the consummation of the agency‘s decisionmaking process” and “legal consequences” flow from them. Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotation marks omitted); see also Blue Ridge, 668 F.3d at 753 (“An order is final” for purposes of the Hobbs Act “if it imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process.“) (formatting modified). The Railroad Administration‘s passive approval of Kansas City Railway‘s revised Part 240 engineer certification program fits that bill.
First, the Railroad Administration‘s judgment allowing the revised program to go into operation assuredly had fixed legal consequences. By regulation, the revised certification program could not be implemented without the Railroad Administration‘s approval. See
Of course, the Railroad Administration‘s approval took the form of inaction—its declination to intervene—rather than the affirmative issuance of an order. But that decision not to act, by virtue of the Railroad Administration‘s regulatorily prescribed passive-approval scheme, naturally had the same legal effect regarding the rights and obligations at issue as if the Administration had formally stamped “Approved” on Kansas City Railway‘s submission. See Oral Arg. Tr. 17:18–21 (Q: “And if you don‘t do anything, then on, shall we say the 31st day, [it is as] if [the agency] stamped approved on there[?]” Railroad Administration: “Yes[.]“). The particular form that the agency‘s final approval took did not change the “direct and appreciable legal consequences” that flowed from it. California Cmtys. Against Toxics v. EPA, 934 F.3d 627, 640 (D.C. Cir. 2019).
Nor is the idea that a document can take full and final legal effect if not rejected within a predetermined period of time a concept unknown to law. See, e.g.,
And while we must independently evaluate our jurisdiction, see Blue Ridge, 668 F.3d at 753, it bears noting that the Railroad Administration agrees that its regulatorily prescribed tacit approval of Kansas City Railway‘s modified Part 240 engineer certification program was final agency action reviewable under the Hobbs Act. See Railroad Admin. Supp. Br. 3 (“The Agency‘s approval of the modified engineer certification program is a reviewable final agency action[.]“); Oral Arg. Tr. 32:22–33:15.
Third, though the practice leaves much to be desired, we also agree with the Railroad Administration that the absence of a written memorialization by the agency does not defeat finality. Congress empowered this court to review “final agency actions” of the Railroad Administration. See
In any event, under this scheme, there is a relevant written document: Namely, the railroad‘s written submission that itself, upon the passage of thirty days, becomes
2
To start with, we look to the agency‘s governing statutes and regulations to determine when a final decision has been entered. See Western Union, 773 F.2d at 376–378 (determining when an FCC order is “deemed to be ‘entered’ for purposes of
To be sure, most agencies subject to the Hobbs Act have adopted more formalized measures of “entry” that must occur before jurisdiction attaches. See Western Union, 773 F.2d at 377–378 (petition for review filed before entry of final FCC order was premature and did not establish jurisdiction because the FCC statute and implementing regulation explicitly tied “entry” to “publication in the Federal Register“) (some capitalization omitted) (citing
But the Hobbs Act speaks differently about review of Department of Transportation decisions involving railroad safety (including those of the Railroad Administration,
Recognizing, as the Railroad Administration agrees (Oral Arg. Tr. 32:22–33:7), that its passive final approval was entered upon the passage of the thirty-day approval period, then the agency‘s endorsement of the plan and the agency‘s conferral of new legal rights on the railroad falls within
Entry, in other words, depends on context. And under the unusual passive scheme at issue here, entry occurs when the document submitted by the railroad as a proposal transmogrifies into an agency-approved program conferring new rights or authority on the railroad. That, for all practical intents and purposes, is the date a railroad‘s proposal is designated “approved” by the Railroad Administration and agency regulations make the railroad aware of the agency‘s official sanction. Cf. Energy Probe v. Nuclear Regulatory Comm‘n, 872 F.2d 436, 438 (D.C. Cir. 1989) (Under Nuclear Regulatory Commission regulations, “the date of ‘entry,’ which commences the running of the sixty-day period for filing for review under the Hobbs Act, is the date on which the agency‘s final decision is signed and served.“).
A contrary conclusion, under which agencies could take undisputedly final actions with concrete legal consequences and yet evade judicial review just by declining to formally paper them internally, would create an agency-controlled end run of the Hobbs Act. The text enacted by Congress gives no quarter to such manipulation. And the well-established “principle of statutory construction“—“the presumption favoring judicial review of administrative action[]“—counsels strongly against reading it into the text. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020) (That “strong presumption” requires courts to, where feasible, adopt a reading of a statute “that accords with” the “basic principle[] that executive determinations generally are subject to judicial review.“) (internal quotation marks omitted); see also SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359 (2018) (noting “the strong presumption in favor of judicial review“).
In sum, we agree with the parties that finality and entry have been established. While the Railroad Administration‘s passive approval process is less common than affirmative forms of agency signoff, the Hobbs Act‘s provision for review of all “final agency actions” by the Railroad Administration encompasses such decisions. The agency‘s decision had material and operative legal consequences, and its entry of that order marked the end of the administrative road, licensing Kansas City Railway to materially change its operations. That entry of approval also transformed what before had been just the Kansas City Railway‘s proposed document into a program bearing the Railroad Administration‘s imprimatur of approval.
3
a
The Unions’ challenge to the Railroad Administration‘s approval of the revised Part 240 engineer certification program is also timely.
The Hobbs Act imposes distinct obligations on both the agency and the party seeking judicial review that affect the time for filing a petition. Understanding how those duties fit together is key to
As relevant here, the Hobbs Act provides:
On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies.
So the first requirement under the Hobbs Act, once a final order is entered, falls on the agency‘s shoulders: It must “promptly give notice thereof by service or publication in accordance with its rules.”
The second duty under the Hobbs Act falls on the aggrieved party seeking judicial review. That party must, “within 60 days after [the final order‘s] entry, file a petition to review the order” in the appropriate court of appeals.
When an agency publicly issues orders memorializing its final actions, that satisfies the agency‘s statutory duty of providing prompt public notice of entry and generally makes calculation of the time for filing petitions for review easy. In that context, “the date of ‘entry,’ which commences the running of the sixty-day period for filing for review under the Hobbs Act, is the date on which the agency‘s final decision is signed and served” or published, Energy Probe, 872 F.2d at 438. See also Grier v. Department of Housing & Urban Dev., 797 F.3d 1049, 1054 (D.C. Cir. 2015) (similar); Western Union, 773 F.2d at 376–378. If the aggrieved party fails to file a petition for review within the ensuing sixty days, the window for judicial review will close. See Energy Probe, 872 F.2d at 438.
Difficulties arise, though, when the agency internally enters a final order but fails to provide the statutorily required prompt public notice of that entry. Must petitioners be locked out of the courts for failing to file their challenges within sixty days of an unknown and secret agency act of entry—notwithstanding the Hobbs Act‘s clear prohibition on such agency behavior?
That is the problem we confront here. The Railroad Administration‘s entirely passive approval system already presents significant challenges for aggrieved parties to establish the finality of its orders, albeit ones that the Unions were able to hurdle in this case. Yet this agency has made a bad situation worse by completely abdicating its legal duty to give prompt public notice of a passively approved final order‘s entry—or even to establish rules for the provision of such public notice. Both of which the Hobbs Act plainly mandates.
Nor does the Railroad Administration provide public notice when it disapproves a proposal. See
Because of the Railroad Administration‘s wholesale abandonment of its duty to formally serve or publish what it agrees was a reviewable final and entered order, or even to provide a known regulatory framework for the entry of its approval decisions, the agency afforded the Unions—and the public at large—no notice of the important and consequential action it took when it approved Kansas City Railway‘s plan for the abbreviated training and certification of de México Railway engineers.
Instead, the Unions first learned from the Railroad Administration that the agency had approved Kansas City Railway‘s revised engineer certification program on July 9, 2018, when the Unions witnessed Kansas City Railway put the crew changes into effect “with [the Administration]‘s presence and support.” Unions Supp. Reply Br. 6; A.R. 2150; see
The Unions did hear a few days earlier, on July 3, 2018 (during the Southern District of Texas litigation), that the Railroad Administration had approved the revised engineer program. See Transcript of Motion Hearing, supra, at 68–69. But that claim did not come from the Railroad Administration—the entity statutorily tasked with making the entry that opens the petition-for-review window,
The Railroad Administration separately asserts that the Unions personally learned of the approval no later than June 27, 2018, pointing to a letter from the Unions to Kansas City Railway on that date. See Railroad Admin. Br. 6. But that letter states only that the Unions have “review[ed] * * * the revised Part 240 Locomotive Engineer Certification Program” submitted to it by the Railway, and consider it to have “several glaring deficiencies in the requirements for foreign national locomotive engineers[.]” Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Temporary Restraining Order and/or Preliminary Injunction at Exhibit 9, Kansas City, 2018 WL 7253969 (No. 5:18-cv-00071), ECF No. 7-9. The letter provides no hint that the Unions knew that the Railroad Administration itself had actually approved Kansas City Railway‘s program.
All in all, the parties agree that the agency gave notice of the entry of its approval decision sufficient to open the jurisdictional window for filing a petition for review no later than July 9, 2018—the date de México engineers began driving trains in the United States under the watching and “support[ing]” eyes of the Railroad Administration, Unions Supp. Reply Br. 6; A.R. 2150. Given that agreement, we need not determine under what other particular and likely rare circumstances an agency‘s public actions alone will open the Hobbs Act‘s filing window. It suffices to say that the Unions’ petition was timely because it was filed within sixty days of the Railroad Administration‘s public rollout of its final approval of the new engineer certification program.
b
The Railroad Administration sees the timeliness issue differently. Having completely hidden its already obscured passive approval from public view, the Railroad Administration argues that the Unions’ petition for review is untimely because it was not filed within sixty days of the final approval‘s entry on February 19, 2018. As noted, that date was more than four months before the agency gave any public indication of its action that could have alerted the Unions of the approval‘s existence and entry. As the Administration would have it, by dropping the ball, it has successfully hidden the ball from judicial review.
But that is not how the Hobbs Act works. “[B]efore any litigant reasonably can be expected to present a petition for review” under the Hobbs Act, “he first must be put on fair notice” of the reviewable agency action‘s existence. Public Citizen, 901 F.2d at 153. So even “[]though the Hobbs Act‘s limitations period is “jurisdictional, * * * self-evidently the calendar does not run until the agency has decided a question in a manner that reasonably puts aggrieved parties on notice of” the challenged agency action. RCA Global Commc‘ns, 758 F.2d at 730); see JEM, 22 F.3d at 326 (same); cf. Grier, 797 F.3d at 1053–1054 (Where an agency‘s regulations do not establish when an order is “entered” for purposes of a jurisdictional statute, it is “untenable” for it to argue that the limitations period began when the order was signed but not served, because that “would permit an agency to shorten a would-be petitioner‘s review period by delaying service[.]“) (relying on cases construing “entry” under the Hobbs Act).
The Hobbs Act instead imposes a sixty-day “filing window” rather than “a filing deadline,” Western Union, 773 F.2d at 377, and we have repeatedly held that the filing window does not open until the agency “put[s] aggrieved parties on reasonable notice of the” action they seek to challenge, JEM, 22 F.3d at 326 (citing Eagle-Picher Indus. v. EPA, 759 F.2d 905, 911–915 (D.C. Cir. 1985); and RCA Global Commc‘ns, 758 F.2d at 730).
Of course, agencies subject to the Hobbs Act can by regulation combine the distinct “entry,” contemplated for jurisdiction to attach, and the separately mandated public notice. The FCC, for one, has done just that.
This, however, is the unusual case where an agency has, without public knowledge, taken an action that is both final and entered, but for which its regulations provide no notice by service or publication, in direct violation of the Hobbs Act‘s commands. Because (as the Railroad Administration agrees) the Unions’ petition was filed after the Railroad Administration‘s approval was finalized and entered, it was not filed too early.
Neither was the petition filed too late. As noted, while the sixty-day period is jurisdictional, Western Union, 773 F.2d at 377, that clock does not start running prior to the agency giving “fair notice” of the entry of its action. Public Citizen, 901 F.2d at 153 (unnoticed final agency action cannot “start the clock running for review, particularly in view of the Hobbs Act‘s requirement that agencies promptly give notice of their final orders by service or publication,
By virtue of the Railroad Administration‘s presence and support, in the company of the Unions, at Kansas City Railway‘s public rollout of the approved crew changes on July 9, 2018, the Unions explain that the Railroad Administration‘s actions alerted them to the agency‘s final approval and entry of the Railway‘s modified engineer certification program.
To be clear, it is doubtful that the Unions’ observation of the Railroad Administration‘s on-the-scene actions constituted the formal, statutorily required public notice under the Hobbs Act. But the only question here is whether Public Citizen‘s fair-notice-of-entry requirement for opening
4
The dissenting opinion agrees that the Railroad Administration‘s approval of Kansas City Railway‘s revised engineer program constitutes final agency action that was entered (albeit in an unreasonable manner, given the nonpublic nature of the entry). See Dissent Op. at 1–3. Nonetheless, the dissenting opinion argues that we lack jurisdiction over the agency‘s enshrouded final approval solely because the Railroad Administration subsequently defied the
But nothing in the
Even when a statutory requirement sits in the company of other jurisdiction-conferring provisions, mere proximity alone will not make it jurisdictional. Gonzalez v. Thaler, 565 U.S. 134, 147 (2012) (“Mere proximity will not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle.“); Sebelius v. Auburn Reg‘l Med. Ctr., 568 U.S. 145, 155 (2013) (similar). Rather, courts will treat statutory elements as jurisdictional only if “the Legislature clearly states that a threshold limitation * * * shall count as jurisdictional[.]” Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006); Kaplan v. Central Bank of the Islamic Republic of Iran, 896 F.3d 501, 512 (D.C. Cir. 2018).
For example, in Gonzalez, the Supreme Court looked at the certificate of appealability requirement in the Antiterrorism and Effective Death Penalty Act,
In the
Rather, it is the next sentence that packs the jurisdictional punch. It specifically conditions the availability of judicial review on (i) a final order, (ii) its entry, and (iii) the aggrieved party filing its petition in the appropriate court of appeals within a sixty-day window.
To be sure, Congress presupposed that agencies would comply with the public notice or service command of the first sentence so that the jurisdictionally required “entry” would be proximate to the notice necessary to file a petition. And where agencies issue formal orders that are signed and served, such orders are deemed “entered” that day, ensuring that those subject to the orders have fair notice of the opening of the filing window. Energy Probe, 872 F.2d at 438; Grier, 797 F.3d at 1054. After all, without the agency providing notice of its decision, how else would affected parties even know they are aggrieved? But that does not make the agency‘s provision of post-entry notice itself a jurisdictional element.
Also of jurisdictional note, the obligation to provide notice is not “a burden that” the parties affected by agency action “bear[.]” Gonzalez, 565 U.S. at 144. The petitioning party, who “may have done everything required of him by law,” has “no control over” the agency‘s nonfeasance. Id. Nothing in the statutory text or structure supports assigning jurisdictional consequence to the petitioner‘s agency-induced haplessness. And the “strong presumption” in favor of judicial review weighs heavily against making the agency‘s flouting of a statutory requirement the very instrument for locking the agency‘s challengers out of court. See Guerrero-Lasprilla, 140 S. Ct. at 1069.
The dissenting opinion points to the Supreme Court‘s recent decision in Rotkiske v. Klemm, 140 S. Ct. 355 (2019), as support for the general proposition that courts should not rewrite statutory limitations periods to include an across-the-board discovery-rule limitation that Congress did not enact. See Dissent Op. at 2. We agree. But this case is about the provision of statutorily required agency notice of its action, not plaintiffs’ discovery of their injury caused by an asserted legal error in that agency action. Contrary to the dissenting opinion‘s assumption (Dissent Op. 2–3), those are not the same things.
Plus, the Supreme Court in Rotkiske expressly left open the “application of equitable [tolling] doctrines[.]” 140 S. Ct. at 361 n.3. That would seem to include the very reasonable notice principle adopted by this court in Public Citizen, endorsed by the dissenting opinion (at 3–4) and applied here, where an agency has openly flouted its statutory duty to provide formal notice of its indiscernible, entirely passive, and unwritten entry process.
More specifically, in Rotkiske, the Supreme Court declined to read the limitations period in the Fair Debt Collection Practices Act that permitted certain suits to “be brought * * * within one year from the date on which the [statutory] violation occurred,”
This case bears little resemblance to the issue decided in Rotkiske. The Unions do not seek, and we do not read into the
Likewise, it was Congress that declined to make jurisdictional the agency‘s post-entry provision of notice. By applying Public Citizen‘s fair-notice-of-entry requirement to the distinctive facts of this record and the agency‘s unique purely passive-approval process, and accepting the parties’ agreement that it was eventually satisfied, we do no surgery on the
Of course, if the notice requirement were jurisdictional, our hands would be tied. See e.g., Arbaugh, 546 U.S. at 513–516. The agency‘s failure to provide such notice would be a jurisdictional defect fatal to the Unions’ petition. But Congress did not make the provision of notice itself a jurisdictional hurdle—a reading of the statute with which the dissenting opinion agrees. Dissent Op. at 5 (agreeing that the agency‘s provision of notice, “on its own, is of no jurisdictional consequence“). Yet by fusing together the reasonable provision of notice and the jurisdictional requirement of an entry—such that only a “reasonably” noticed entry creates jurisdiction, id. at 4—the dissenting opinion necessarily elevates the notice requirement to jurisdictional effect. That is Congress‘s job, not the courts‘.
The dissenting opinion acknowledges that its approach would allow agencies to evade judicial review of their final actions just by violating the
The dissenting opinion would relegate those parties to the extraordinary remedy of mandamus relief. Dissent Op. at 6; see Dunlap v. Presidential Advisory Comm‘n on Election Integrity, 944 F.3d 945, 950 (D.C. Cir. 2019) (Mandamus relief is a “drastic and extraordinary remedy reserved for really extraordinary causes.“) (quoting Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004)); see also id. (noting that mandamus petitioners must demonstrate, among other things, “a clear and indisputable right to” the relief they seek) (emphasis added).
That approach, however, is at least a half—if not a total—victory for the misbehaving agency. Requiring aggrieved parties to navigate the convoluted mandamus road would long delay judicial review and confine it to those few (if any) aggrieved parties who have the resources, time, and legal wherewithal to first pursue mandamus and then, months and months later, start the judicial review process. Still worse, because the Railroad Administration has also disregarded the statutory obligation to establish “rules” for the provision of notice,
It is hard to wring that crabbed route to judicial review out of the
5
The Railroad Administration separately argues that the Unions’ petition does not actually include a challenge to its approval of Kansas City Railway‘s modified engineer certification program. Railroad Admin. Supp. Br. 3. As the Railroad Administration sees it, the Unions’ petition fails to specifically point to the Part 240 approval and, instead, raises only a general challenge to the agency‘s “purported decision” to allow de México Railway “to operate freight trains in the United States,” Railroad Admin Br. 14, without first requiring de México “to submit its own engineer certification program,” Railroad Admin. Supp. Br. 3.
That argument only half reads the petition. Alongside those more general complaints, the Unions’ petition also specifies that its challenge includes, among other things, “the * * * certification of” de México Railway‘s “non-U.S. locomotive engineers and conductors, as well as the review, vetting and approval of such * * * certification by” the Railroad Administration. Petition at 3. That language directly challenges the Railroad Administration‘s approval of Kansas City Railway‘s modified engineer certification program. Especially since a petitioner‘s intent to seek review of a specific order need only be “fairly inferred from the petition for review or other contemporaneous filings[.]” Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 (D.C. Cir. 2000). The Unions’ petition satisfies that requirement.
* * * * *
For all of those reasons, we have jurisdiction under the
B
The Unions’ petition also challenges several other actions of the Railroad Administration relating to the Railroads’ implementation of the new crew change procedures. First, the Unions seek to overturn the agency‘s acquiescence in Kansas City Railway‘s application of its existing Part 242 conductor certification program to de México Railway conductors. Second, they argue that the Railroad Administration unlawfully modified or reassigned Kansas City Railway‘s brake-test waiver by permitting de México Railway workers to operate northbound trains without performing a Class I brake test at the International Bridge. Third, the Unions broadly seek review of multiple other Railroad Administration failures to act pertaining to Kansas City Railway‘s revised crew change procedures.
Because the administrative record does not show that the Railroad Administration entered a final approval for any of those actions, we do not have jurisdiction under the
1
Recall that, unlike the engineer certification program, the Railroad Administration‘s August 2017 audit concluded that “no changes [were] necessary to” Kansas City Railway‘s existing Part 242 conductor program to enable it to certify de México Railway conductors under an abbreviated training curriculum. J.A. 390. So Kansas City Railway never submitted a revised, modified, or amended (or even resubmitted its existing) conductor certification program to the Railroad Administration for approval. And the Railroad Administration did not review (let alone approve) any modifications to that conductor certification program.
So there is nothing in the administrative record to point to as a reviewable final agency action taken by the Railroad Administration with respect to Kansas City Railway‘s certification of de México Railway‘s conductors under an abbreviated training program.
To be sure, the Railroad Administration took final and reviewable agency action in 2012 when it first approved Kansas City Railway‘s conductor certification program. But the Unions do not purport to challenge that approval, nor could they timely do so at this juncture.
Neither does the Railroad Administration‘s audit in 2017 amount to a final and reviewable agency action. The audit itself reached “a merely tentative or interlocutory” decision on the Railroad‘s proposed cross-border program. Bennett v. Spear, 520 U.S. 154, 178 (1997). The internal audit was sent from two Railroad Administration officials to another official, and it concluded by stating that, subject to further review, the audit team “believe[s]” that Kansas City Railway “has completed the due diligence necessary to certify [de México] engineers and conductors.” J.A. 391.
The Railroad Administration explains that the audit represents only “the preliminary views of a subordinate agency official,” and not a final determination of the Administration itself. Railroad Admin. Supp. Br. 6. We agree. Without any showing that the recipient of the audit or any official with authority to bind the Railroad Administration ever ratified the audit team‘s conclusions, we cannot conclude that the audit constitutes final agency action. See, e.g., Holistic Candlers & Consumers Ass‘n v. FDA, 664 F.3d 940, 944 (D.C. Cir. 2012); cf. California Cmtys. Against Toxics v. EPA, 934 F.3d 627, 636 (D.C. Cir. 2019); Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 1525, 1531–1532 (D.C. Cir. 1990).
True, Kansas City Railway began, after the audit, to allow de México Railway conductors it had certified to operate on its tracks in the United States. But without more, “[p]ractical consequences” independently put into effect by private parties alone “are insufficient to bring an agency‘s conduct under our purview.” Independent Equip. Dealers Ass‘n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004).
The Unions nonetheless argue that there was final agency action in that, by allowing Kansas City Railway to operate with de México Railway conductors that it had certified, the Railroad Administration must have implicitly waived regulatory and statutory requirements that, in the Unions’ view, required de México Railway to obtain its own approved Part 242 certification program for conductors. See Unions Reply Br. 9–10.
But the administrative record contains no sign of final agency action whatsoever granting such a waiver, either actively or passively. As far as the record shows, Kansas City Railway‘s certification of conductors seems to be purely a decision of its own making.
At bottom, the Unions’ challenge is to what they see as the Railroad Administration‘s failure to enforce the laws governing conductor certifications against Kansas City Railway and de México Railway. That argument runs up against the “well-established tradition” that “an agency‘s decision not to prosecute or enforce is generally committed to an agency‘s absolute discretion.” Department of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1906 (2020) (internal quotation marks omitted). And from a practical perspective, a challenge like the Unions’ that targets an agency‘s refusal to act, leaves courts without an “action to provide a focus for judicial review.” Id. (formatting modified). Relabeling that same inaction a “waiver” of legal requirements does not suddenly make the unreviewable reviewable.
For those reasons, there is no final agency action regarding Kansas City Railway‘s decision to begin certifying de México conductors under its preexisting Part 242 conductor certification program, and we lack jurisdiction under
2
The Unions also seek our review of the Railroad Administration‘s asserted indication that Kansas City Railway‘s brake-test waiver can also be used by de México Railway conductors. The Unions point in particular to an internal June 6,
The Railroad Administration argues that the email is nothing more than a lone staffer‘s response to “questions about how the new crew change procedures work.” Railroad Admin. Br. 18. That is in some tension with the Railroad Administration‘s repeated arguments in this court that, “[c]ontrary to the [U]nions’ views[,] * * * the existing brake test waiver applies to all trains operating on [Kansas City Railway‘s] tracks at the border, including trains operated by [de México Railway] crews (who are certified under [Kansas City Railway‘s] engineer and conductor certification programs).” Railroad Admin. Br. 22. And the Railroad Administration does not dispute its own knowledge that de México Railway crewmembers are, and have been for quite some time, using Kansas City Railway‘s brake-test waiver for their own operations.
But like the conductor certifications, the record shows only that the Railroad Administration has knowingly allowed the Class I brake-test waiver‘s use by de México Railway crews. Nothing in the administrative record surfaces an actual final action by the agency granting an extension of Kansas City Railway‘s brake-test waiver or otherwise assigning it to de México Railway. Nor can counsel‘s argument to this court retroactively create final agency action that the administrative record itself does not reveal. Cf. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). “[W]e have held often enough that when an agency has not yet made any determination or issued any order imposing any obligation, denying any right, or fixing any legal relationship, the agency action was not reviewable.” Independent Equip., 372 F.3d at 427 (formatting modified). Neither may we review the Railroad Administration‘s failure to bring an enforcement action regarding the asserted violation of brake-test regulations. See Regents, 140 S. Ct. at 1906.
3
Apart from those discrete objections to the Railroad Administration‘s actions or inaction, the Unions describe their petition as more broadly challenging the Railroad Administration‘s approval of a “Pilot Program allowing a Mexican railroad company, using Mexican train crews, to regularly operate freight trains within the United States free from U.S. rail safety requirements.” Unions Br. 1. In addition to the engineer certifications, conductor certifications, and expanded brake-test waiver, the Unions assert that the Railroad Administration has wrongly permitted de México Railway crews to operate in violation of agency regulations governing communication protocols and hours of service restrictions, without going through the necessary procedural requirements for granting regulatory waivers. See Unions Br. 43–47.
The Railroad Administration, for its part, categorically denies that it has adopted a “so-called ‘Pilot Program,‘” and denies that it has granted any regulatory waivers, de facto or otherwise. Railroad Admin. Br. 11–12, 15–20. Far from it, the Railroad Administration insists that de México Railway must fully comply with all regulations when operating within the United States, and that the Administration “may initiate enforcement proceedings” if it does not. See Railroad Admin. Br. 22.
Because the Unions’ arguments sound in terms of a failure to enforce the law, rather than final-action review, we likewise
For example, the Unions assert that the Railroad Administration has provided “[u]nlawful relief from” various hours of service regulatory provisions. Unions Br. 43–47. But as evidence of such “unlawful relief,” the Unions point only to the absence of any agency documentation definitively proving that the crews are (or are not) in compliance. See Unions Br. 43–47.
The Unions also cite Kansas City Railway‘s July 2017 draft implementation document entitled “Int[ernational] Crew Hours of Service Reporting Use Case.” Unions Br. 46–47; J.A. 362. The Unions insist that the draft Railway plan “is patently inadequate in scope and substance” to ensure compliance by de México Railway crews with hours of service limitations. Unions Br. 46.
But nothing in the administrative record shows that the Railroad Administration ever finally approved—either affirmatively or passively—the Railway‘s draft document. Neither is there any evidence that the Administration has otherwise made a final determination that ongoing operations comply with any or all of the regulatory limitations on hours of service. Nor does anything in the record indicate that the Railroad Administration “exempted [de México Railway] crews from hours-of-service regulations when operating within the United States,” or otherwise “granted” the Railroads “de facto general waiver[s]” from other applicable regulations, Railroad Admin. Br. 22.
At bottom, what the Unions denominate final agency action granting a regulatory waiver is, on this record, nothing more than the Railroad Administration‘s failure to bring enforcement actions for alleged regulatory violations. Whatever tools parties may have to prod an agency off the regulatory sidelines, they do not on this record include judicial review under the
To be sure, Kansas City Railway did share with the Railroad Administration its “International Crew Pilot Program” early on as it went about developing its proposal for new crew change procedures. See, e.g., J.A. 44–47. Also, in a June 6, 2018 internal email, a Railroad Administration official stated that “the plan” had been reviewed, and that “Mexican crews will be in compliance with all [Railroad Administration] regulations.” J.A. 559.
But that is of no help to the Unions. Reviewing a plan is not the same as approving or adopting it. Back and forth communications between a regulatory official and the party it regulates are commonplace. That does not transform every document drafted by the regulated party or comment made by a regulatory official into final action by the agency. Internal Railroad Administration communications expressing opinions about whether various features of the cross-border program would comply with regulatory requirements do not “mark the consummation of the agency‘s decisionmaking process” that could confer legally enforceable rights on the Railroads. Bennett, 520 U.S. at 178 (internal quotation marks omitted).
III
Finally, we turn to the merits of the Unions’ challenge to the one final agency action over which we have jurisdiction—the Railroad Administration‘s approval of Kansas City Railway‘s revised engineer certification program that allows that railroad to use its abbreviated program to certify de México Railway engineers. Because the Railroad Administration chose to passively approve that program without any explanation or discernible reasoning, the track to invalidation is short.
In reviewing final orders under the
The APA, in turn, “requires agencies to engage in reasoned decisionmaking,” Regents, 140 S. Ct. at 1905 (internal quotation marks omitted), and mandates that reviewing courts “hold unlawful and set aside agency action, findings, and conclusions found to be * * * arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”
The Railroad Administration‘s approval of Kansas City Railway‘s Engineer Certification Program empowered that Railway, for the first time, to train and certify engineers of a different and foreign railroad over which it exercises no apparent control—de México Railway—under an abbreviated curriculum.
Recall that de México Railway is only a foreign affiliate of Kansas City Railway, and there is no indication that Kansas City Railway exerts any control over de México Railway or the performance of its railway crews. Cf. Agency for Int‘l Dev. v. Alliance for Open Soc‘y Int‘l, Inc., 140 S. Ct. 2082, 2087 (2020) (“[I]t is long settled as a matter of American corporate law that separately incorporated organizations are separate legal units with distinct rights and obligations.“) (citations omitted); id. (“Even though the foreign organizations have affiliated with the American organizations, the foreign organizations remain legally distinct from the American organizations.“). Indeed, as part of developing the new crew change operations, the Railroads separately had to grant de México Railway operating rights over their 9.2-mile stretch of track in the United States.
Yet Railroad Administration regulations require “[e]ach railroad” operating within
The statute likewise instructs the Railroad Administration to “establish a program requiring the licensing or certification * * * of any operator of a locomotive” “through review and approval of each railroad carrier‘s operator qualification standards[.]”
Also, once a certification program is approved, Railroad Administration regulations require each railroad that crosses an operating-revenue threshold to satisfy various monitoring and reporting requirements “concerning the administration of its program for responding to detected instances of poor safety conduct by” the engineers it certifies. See
As the Unions see it, the Railroad Administration acted unlawfully when it formally approved Kansas City Railway‘s modified engineer certification program, allowing that railroad to fulfill de México Railway‘s independent statutory and regulatory certification obligations. The Unions also challenge the approval on the ground that it permits Kansas City Railway to rely on de México Railway‘s engineers’ operating experience in Mexico—experience gained under a different regulatory regime—as a basis for providing only an abbreviated training protocol normally reserved for engineers previously certified under federal regulations. Unions Reply Br. 23; see
By virtue of the Railroad Administration‘s passive approval system and the complete absence of any accompanying explanation for the agency‘s approval of Kansas City Railway‘s modified engineer certification program, the administrative record is devoid of any explanation or reasoning for the administrative steps taken and legal determinations made by the agency in approving the engineer certification program. Likewise, in searching the administrative record for the rationale by which the agency allowed Kansas City Railway to certify the engineers of another railroad, despite the former‘s apparent lack of control over de México Railway‘s crew members, we come up empty handed. And in a hunt for the reason that service under a foreign regulatory system was credited to allow an abbreviated certification program, we hear only crickets.
All that we have are the Railroad Administration‘s attorneys’ arguments to this court that “it is sufficient for [Kansas City
That will not do. Putting aside the entirely conclusory nature of the arguments, “[i]t is a ‘foundational principle of administrative law’ that judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action.‘” Regents, 140 S. Ct. at 1907 (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)). The “basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted.” Id. at 1909.
Here, there are no reasons. Instead, what we confront in this case is a total explanatory void. There is no reason—not one word—in the administrative record for the Railroad Administration‘s material and consequential decisionmaking on important matters of railroad safety. Not even Kansas City Railway‘s certification program itself, as submitted to the agency, provides an explanation for the relevant determinations that the Agency presumably reached. When the reasons that an agency provided at the time it took the challenged action “are inadequate[,]” the agency‘s action may not be sustained. See, e.g., Regents, 140 S. Ct. at 1907; City of Oberlin v. FERC, 937 F.3d 599, 605 (D.C. Cir. 2019). The Railroad Administration‘s reasons in this case are even less than “inadequate.” They are non-existent.
Vacatur “is the normal remedy” when we are faced with unsustainable agency action. Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014). In this case, the Railroad Administration has neither asked the court nor given us any reason to depart from that standard course of action. So we vacate and remand for the Railroad Administration either to “offer a fuller explanation of the agency‘s reasoning at the time of the agency action,” or to “deal with the problem afresh by taking new agency action.” Regents, 140 S. Ct. at 1907–1908 (formatting modified).
IV
For all of those reasons, we grant the Unions’ petition for review as to the Railroad Administration‘s approval of Kansas City Railway‘s use of its modified Part 240 engineer certification program to train and certify de México Railway engineers, and we vacate and remand for further agency action consistent with this opinion. We otherwise dismiss the petition for lack of jurisdiction.
So ordered.
TATEL, Circuit Judge, concurring in part and dissenting in part: I share my colleagues’ exasperation with the Railroad Administration‘s conduct and agree with much of the court‘s excellent analysis. But because I believe we lack jurisdiction at this time to review the revised engineer certification program, I reluctantly dissent from that portion of the court‘s opinion.
The
In this case, although the Railroad Administration ostensibly entered the certification program‘s approval in February 2018, it wholly ignored its statutory duty to “promptly give notice thereof“; indeed, the agency has never even promulgated “rules” for the “service or publication” of such decisions.
The court‘s holding is difficult to square with its own “fair-notice-of-entry requirement,” id. at 41, as the court fails to explain how the Railroad Administration‘s mere “presence and support,” id. at 36 (quoting Unions Supp. Reply Br. 6), “reasonably put[] aggrieved parties on notice” of the challenged agency action, RCA Global Communications, Inc. v. FCC, 758 F.2d 722, 730 (D.C. Cir. 1985). Surely not all potentially aggrieved parties happened to “witness[]” the crew change go into effect, as did the Unions. Majority Op. at 36. And even if they had, it would take something like divine guidance to deduce from the Railroad Administration‘s opaque involvement in the rollout that the agency, months earlier, had passively approved the railway‘s revised engineer program. See A.R. 2150 (detailing the agency‘s limited participation in the program‘s launch). True, the Unions had a rough notion of the program‘s approval by July 9, see Unions Supp. Reply Br. 6, though that might well have been because they were informed of the decision days earlier, see Transcript of Motion Hearing at 68–69, Kansas City, 2018 WL 7253969 (No. 5:18-cv-00071), ECF No. 24. In any event, if the measure of fair notice is actual notice for one set of aggrieved parties, then the court‘s fair-notice requirement collapses into nothing more than a de facto discovery rule, with petitions’ timeliness turning on the happenstance of when aggrieved parties (or just one aggrieved party) learn of the agency‘s action. But see Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019) (cautioning against reading notice-based discovery exceptions into statutory filing requirements and calling such “[a]textual judicial supplementation . . . inappropriate“).
More fundamentally, the court‘s “fair-notice-of-entry requirement” contravenes the
In my view, rather than delaying the filing period, the Railroad Administration‘s failure to give notice invalidated the jurisdictional effect of the approval‘s entry. Put differently, instead of pushing back the start of the filing window, the lack of notice meant the window never opened. This is evident from our court‘s decision in Public Citizen v. Nuclear Regulatory Commission, 901 F.2d 147 (D.C. Cir. 1990). There, the agency argued that the
Under the plain terms of the
That logic controls here. The Railroad Administration gave no notice—prompt, fair, or otherwise—of the certification‘s February 2018 approval. Contrary to the court‘s conclusion, then, the
The court criticizes this approach for “fusing together” the
The court rightly worries about agencies ignoring their statutory duties in order to evade judicial review. See id. But most agencies, including other constituent agencies of the Department of Transportation, sensibly comply with their
And we have a ready-made solution for an outlaw agency, like this one, that insulates itself from review only by blatantly flouting its statutory obligations, i.e., mandamus. See In re Public Employees for Environmental Responsibility, 957 F.3d 267, 273 (D.C. Cir. 2020) (explaining that “mandamus relief is appropriate” where “agencies have failed to comply with their statutory mandate“). To be sure, the Unions would first have to initiate proceedings to force the Railroad Administration‘s compliance with the
Anyway, I trust that the Railroad Administration will take this court‘s unanimous condemnation of its “statutory defiance,” Majority Op. at 47, as a clear message that it should revise its procedures to ensure that, however it chooses to enter final orders, it “promptly give[s] notice thereof,”