NEBRASKA STATE LEGISLATIVE BOARD, UNITED TRANSPORTATION UNION, Pеtitioner, v. Rodney SLATER, Secretary of Transportation; United States Department of Transportation; Jolene Molitoris, Federal Railroad Administrator; Federal Railroad Administration, Respondents. Association of American Railroads, Intervenor on Appeal.
No. 00-2193
United States Court of Appeals, Eighth Circuit
Submitted: Dec. 14, 2000. Filed: April 2, 2001.
245 F.3d 656
Lawrence M. Mann, argued, Washington, DC, for appellant. Peter J. Plocki, argued, U.S. Dept. of Transportation, Washington, DC, for appellеe.
MCMILLIAN, Circuit Judge.
The Nebraska State Legislative Board, United Transportation Union (UTU or the union) petitions for review of an order of the Federal Railroad Administration (FRA). We dismiss the petition for review for lack of jurisdiction.
BACKGROUND
In 1988, Congress enacted the Rail Safety Improvement Act, which required the Secretary of Transportation to establish a licensing or certification program for “any operator of a locomotive.”
In October 1992, UTU wrote FRA that the exclusions had eliminated union jobs at the Union Pacific (UP) Bailey Yard facility аt North Platte, Nebraska. The union also raised safety concerns about the subsection (1) exclusion, requesting review of the regulation and enforcement of the 100-foot limitation in subsection (2). After investigation of the facility, in November 1992, FRA notified the union that UP had not violated
In July and August of 1994, UTU regional and local officials wrote FRA that UP‘s use of non-certified employees to move locomotives at Bailey Yard was unsafe. After investigation, by letters of November and December 1994, FRA informed the UTU officials that it found no violations of the regulation, noting UP had a training program for the non-certified employees.
In January 1996, UTU complained to FRA about UP‘s training program. After investigation, in July 1996 FRA notified the union that UP had not changed its training requirement and that it was in compliance with
DISCUSSION
Pursuant to the Hobbs Act,
UTU does not dispute that the “[t]imeliness of a petition sеeking review is a jurisdictional requirement that cannot be modified or waived by this court.” Cosby v. Burlington Northern, Inc., 793 F.2d 210, 212 (8th Cir.1986) (quoting Cartersville Elevator, Inc. v. ICC, 724 F.2d 668, 672 (8th Cir.1984)). Relying on Tri-State Motor Transit Co. v. ICC, 739 F.2d 1373, 1375 n. 2 (8th Cir.1984) (Tri-State), cert. denied, 472 U.S. 1027, 1032, 105 S.Ct. 3502, 3512, 87 L.Ed.2d 633, 642 (1985), UTU argues its petition is timely, even though it was not filed within sixty days of issuance of the regulation in 1991, because the petition was filed within sixty days of the March 17 letter and raises a substantive, not a procedural, challenge.
We agree with the Secretary that UTU‘s reliance on Tri-State is misplaced. It is true that in Tri-State this court held that “the Hobbs Act does not bar judicial review on the substantive validity of [a] rule, even if more than sixty days hаve elapsed since its issuance.” Id. However, we explained “administrative rules and regulations are capable of continuing application; limiting the right of review of the underlying rule would effectively deny many parties ultimately affected by a rule an opportunity to question its validity.” Id. (quoting Texas v. United States, 730 F.2d 409, 415 (5th Cir.1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 642 (1985)). In other words, “the calendar does not run until the agency has decided a question in a manner that reasonably puts aggrieved parties on notice of the rule‘s content.” RCA Global Communications, Inc. v. FCC, 758 F.2d 722, 730 (D.C.Cir.1985). Here, as the Secretary argues, UTU had ample notice and opportunity to challenge the application of
Apparently realizing the weakness of its Tri-State argument, UTU claims it is not challenging
UTU‘s reliance on Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (Kyne), is also misplaced. In Kyne, the Supreme Court held that a district court had jurisdiction tо review a non-final agency order “made in excess of its delegated powers and contrary to a specific [statutory] prohibition.” Id. at 188.4 In addition to the fact that Kyne involved district court review, there are other differenсes between this case and Kyne. “[C]entral to [the Supreme Court‘s] decision in Kyne was the fact that[,]” in the absence of review, the agency‘s action “would wholly deprive the [plaintiff] of a meaningful and adequate means of vindicating its statutory rights.” Board of Governors v. MCorp Fin., Inc., 502 U.S. 32, 43, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). In enacting
Moreover, in Kyne, the agenсy action was “an attempted exercise of power that [Congress] had specifically withheld.” 358 U.S. at 189. As a general rule, courts “have interpreted Kyne as sanctioning [review] in a very narrow situation in which there is a ‘plain’ violation of an unambiguous and mandatory provision of the statute.” American Airlines, Inc. v. Herman, 176 F.3d 283, 293 (5th Cir. 1999). Thus, under Kyne, “review of an
In sum, in the circumstаnces of this case, permitting judicial review would thwart Congress‘s intent to “impart finality into the administrative process, thereby conserving administrative resources and protecting the reliance interеsts of those who might conform their conduct to the administrative regulations.” Illinois Cent. Gulf R.R. v. ICC, 720 F.2d 958, 960 (7th Cir.1983) (quoting Natural Res. Def. Council v. NRC, 666 F.2d 595, 602 (D.C.Cir.1981)).
Accordingly, we dismiss UTU‘s petition for review for lack of jurisdiction.5