The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2024 Decided July 26, 2024
No. 23-1126
IN RE: WESTERN COAL TRAFFIC LEAGUE,
PETITIONER
On Petition for a Writ of Mandamus
to the Surface Transportation Board
Andrew B. Kolesar III argued the cause for petitioner. On
the petition for a writ of mandamus and reply were William L.
Slover and John H. LeSeur.
Thomas A. Quinn, Attorney, Surface Transportation
Board, argued the cause for respondent. With him on the
opposition to the petition for writ of mandamus were Craig M.
Keats, General Counsel, and Anika S. Cooper, Deputy General
Counsel.
Before: WILKINS and CHILDS, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the court by Senior Circuit Judge ROGERS.
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ROGERS, Senior Circuit Judge: The Surface
Transportation Board is to ensure “reasonableness” of freight
rail shipping rates, and in so doing address whether a railroad
is “revenue adequate.” 49 U.S.C. §§ 10701(d)(1),
10704(a)(2)–(3). In April 2014, the Board opened an
informational docket to obtain public comment on how the
Board calculates and applies this concept in shipping rate cases.
Notice, STB Dkt. EP 722, R.R. Revenue Adequacy (Apr. 1,
2014) (“Revenue Adequacy”) at 1. Over the next six years, the
Board collected information through written comments and
public hearings. During the following two years, the Board
received further information by these means on a task force
report with policy recommendations. Although the Board has
addressed revenue adequacy in other rulemaking dockets and
in rate case adjudications, it has not issued a decision in the
Revenue Adequacy proceeding since receiving comments in
February 2020.
Petitioner Western Coal Traffic League, a coalition of coal
shippers, submitted comments and participated in the Board’s
hearings advocating modifications to the Board’s framework
for calculating and applying the revenue adequacy concept in
rate cases. Despairing of what it characterizes as the Board’s
unreasonable delay in responding to shippers’ proposals, the
League petitions for a writ of mandamus compelling the Board,
within 90 days, to publish either a notice of proposed
rulemaking on revenue adequacy or “serve a final decision in
[the] Revenue Adequacy . . . [docket] explaining why it is
discontinuing the proceeding.” Pet. at 2–4. Although the court
may grant mandamus pursuant to the All Writs Act, 28 U.S.C.
§ 1651(a), to compel agency action that the court would
ultimately have jurisdiction to review, the Board’s
management of its Revenue Adequacy docket is not such
agency action. The Hobbs Act, 28 U.S.C. § 2342(5),
authorizes judicial review of the Board’s “final orders,” which
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the Revenue Adequacy proceeding is not. The Board convened
the proceeding solely to gather public comment on certain
ratemaking issues, without any statutory duty or stated plans to
undertake a rulemaking or specific regulatory action. The court
therefore dismisses the League’s petition for mandamus for
lack of jurisdiction.
I.
In vesting the Surface Transportation Board with the
authority to regulate interstate rail transportation, 49 U.S.C.
§ 10501, Congress has required the Board to ensure the
reasonableness of railroad freight shipping rates for “captive
traffic” on routes where a particular railroad has “market
dominance.” See id. §§ 10707, 10701(d)(1). To evaluate the
reasonableness of captive traffic rates, the Board applies a
three-factor test adopted by the Interstate Commerce
Commission. See CF Indus., Inc. v. Surface Transp. Bd., 255
F.3d 816, 827 (D.C. Cir. 2001) (citing Coal Rate Guidelines,
Nationwide, 1 I.C.C.2d 520, 535 (1985)).
The first factor is whether the railroad is “revenue
adequate.” Congress directed that “rail carriers shall earn
adequate revenues,” 49 U.S.C. § 10701(d); id. § 10101(3), (6),
and that the Board “maintain and revise as necessary” a
methodology for assessing which railroads are revenue
adequate. Id. § 10704(a)(2)–(3). In rate cases, the Board
examines a railroad on a “system-wide basis to determine the
revenue[] it needs to ‘provide a rate of return on net investment
equal to the current cost of capital (i.e., the level of return
available on alternative investments).’” CF Indus., 255 F.3d at
827 (quoting Coal Rate Guidelines, 1 I.C.C.2d at 535). If a
“carrier is revenue adequate,” the Board considers whether “a
complaining shipper may be entitled to rate relief.” W. Tex.
Utils. Co. v. Burlington N. R.R., 1 S.T.B. 638, 655 (1996).
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In April 2014, the Board issued a Notice of Proceeding to
“explore the Board’s methodology for determining railroad
revenue adequacy, as well as the revenue adequacy component
used in judging the reasonableness of rail freight rates.”
Revenue Adequacy at 1. Explaining that in recent years
“questions have been raised regarding the agency’s
methodology for determining revenue adequacy,” the Board
“intended [the Revenue Adequacy proceeding] as a public
forum to discuss” these topics “with a view to what, if any,
changes the Board can and should consider.” Id. at 4. The
Notice listed questions on which the Board sought comment.
It also discussed a related docket on a rulemaking proposed by
the Western Coal Traffic League addressing “how [the Board]
determines the railroad industry’s cost of equity capital,” which
is “a component of the methodology that the Board uses to
determine revenue adequacy.” Id. The Board invited
comments on both dockets in advance of a public hearing. Id.
at 5. In July 2015, the Board held a two-day hearing on both
dockets, and in August 2015, the Board closed the Revenue
Adequacy record after accepting reply comments.
The Board thereafter established a rate reform task force
(“RRTF”) with the “objectives of developing
recommendations to reform and streamline the Board’s rate
review process for large cases, and determining how to best
provide a rate review process for smaller cases.” Notice (Sept.
12, 2019) at 2. In March 2018, the Board announced that in
order to obtain “stakeholder input” relevant to the RRTF’s work,
it would permit “informal discussions [with] . . . stakeholders
related” to Revenue Adequacy. Decision (Mar. 28, 2018) at 1. It
also advised that “no rulemaking has been initiated” and it “has
not determined the next action it will take relating to this
proceeding,” describing Revenue Adequacy as a “pre-rule
informational and hearing docket.” Id.
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The RRTF Report of April 25, 2019, was posted on the
Board’s website for comment. The RRTF’s recommendations
included rulemakings on (1) the Board’s revenue adequacy
methodology, focusing it on providing a long-term rather than
snapshot picture of a railroad’s financial performance, and (2)
shipper rate remedies where a railroad is revenue adequate,
moving away from a fixed rate cap and towards a flexible
metric aimed at carrier revenue surplus. RRTF Report (Apr.
25, 2019) at 33, 35–41. In September 2019, the Board
announced another public hearing, inviting public comment
and noting four recommendations in the RRTF Report. Notice
(Sept. 12, 2019) at 2–3. Reply comments were due in February
2020.
The League filed comments with the Board in 2014 and
2019 and participated in both sets of public hearings. The
League advocated changes to the Board’s revenue adequacy
methodology and its application in rate cases to better reflect
recent growth in stable profitability for the primary national
railroads. In particular, the League urged the Board to change
how it calculates the necessary return on investment for a
railroad to be revenue adequate and to abandon its longstanding
focus on “cost of capital.” League Statement (Sept. 5, 2014) at
10–11, 20–21. It urged as well that any rate increases by
revenue adequate railroads under its new proposed
methodology should be subject to a presumption of
unreasonableness in rate cases. Id. at 30–33. Commenting on
the RRTF Report, the League advocated the same proposals,
stating its approach was simpler and in greater harmony with
the statutory framework than the RRTF’s recommendations.
League Statement (Nov. 26, 2019) at 18–19. In August 2022,
the League filed a “petition for administrative action” by the
Board to advance the proceedings to the rulemaking stage.
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In May 2023, the League filed a petition for a writ of
mandamus compelling the Board to publish a notice of
proposed rulemaking within 90 days of issuance of the writ,
and to take final action in the Revenue Adequacy proceeding
within one year, or to serve a final decision on issuance of the
writ explaining why it is discontinuing the proceeding. Pet. at
4. Relying on the Administrative Procedure Act, 5 U.S.C. §
551 et seq. (“APA”), the League argues that mandamus is
warranted because the Board’s “inaction” in “addressing the
merits” of shipper comments on the Revenue Adequacy docket
is “clearly unreasonable.” Pet. at 2 (citing Telecomms. Rsch.
& Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984)
(“TRAC”)), 16 n.9, 21. In the League’s view, if “the Board
intends to deny these requests,” the APA obligates the Board
to provide “‘prompt notice’ of its denial in a judicially
reviewable final decision explaining its actions.” Id. at 18–19
(discussing 5 U.S.C. § 555(b), (e)).
II.
Mandamus is an “extraordinary remedy,” reserved “only
for the most transparent violations of a clear duty to act.” In re
Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000).
When a party requests mandamus against a federal agency
under the All Writs Act, 28 U.S.C. § 1651(a), see Pet. at 2, the
court undertakes a three-step inquiry. In re Nat’l Nurses
United, 47 F.4th 746, 752 (D.C. Cir. 2022). First, the court
must ensure its own jurisdiction by “considering whether
issuing the writ would protect . . . current or prospective
jurisdiction.” Id. Second, if it has jurisdiction, the court asks
“whether the agency has a crystal-clear legal duty to act.” Id.
Third, even if an agency has breached a clear duty to act, the
court will consider “whether judicial intervention would be
appropriate” as mandamus is a “drastic remedy reserved for
extraordinary circumstances.” Id. 752–53 (citing, inter alia,
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Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004)). This
court’s inquiry ends at the first step because the court has no
current or prospective jurisdiction that the writ sought by the
League would aid or protect. See Moms Against Mercury v.
FDA, 483 F.3d 824, 827–28 (D.C. Cir. 2007).
The All Writs Act “does not grant jurisdiction” to the court
and “authorizes the issuance of a writ of mandamus in aid of
jurisdiction [the] court already has or will have as a result of
issuing the writ.” In re Nat’l Nurses, 47 F.4th at 752 (citing In
re Tennant, 359 F.3d 523, 527–28 (D.C. Cir. 2004)). The court
can issue a writ of mandamus to compel agency action
unreasonably delayed, as sought here, where the court’s power
stems from its “interest in protecting its future jurisdiction.”
Moms Against Mercury, 483 F.3d at 827 (citing TRAC, 750
F.2d at 75). That interest does not “arise if the final agency
action” to be compelled is not ultimately reviewable by the
court. Id.
The Hobbs Act authorizes the court to review the Board’s
“rules, regulations, or final orders.” 28 U.S.C. § 2342(5).
Agency action is “final” when it (1) is not “tentative,” marking
“the consummation of the agency’s decisionmaking process,”
and (2) either determines “rights or obligations” or brings about
“legal consequences.” Bennett v. Spear, 520 U.S. 154, 177–78
(1997) (internal citations and quotations omitted). The Board
“inaction” about which the League complains neither
represents a non-tentative conclusion nor brings about legal
consequences.
The League interprets the Revenue Adequacy proceeding
as intended to produce a rulemaking or other agency
conclusion about reforms to the revenue adequacy constraint.
It views the Board’s lack of further comment on the docket as
an implicit “final” decision on the proposals made by
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commenters. Pet. Reply Br. at 4. Similarly, the League views
the Board’s failure to respond to shipper comments as
tantamount to a final Board decision “not to institute
[rulemaking] proceedings.” Id. Neither view has record
support. The League points to no statement by the Board that
it intended to use the Revenue Adequacy proceeding as a
vehicle to take final action “bind[ing] either itself or regulated
parties,” Kennecott Utah Copper Corp. v. U.S. Dep’t of
Interior, 88 F.3d 1191, 1223 (D.C. Cir. 1996).
In establishing the Revenue Adequacy docket, the Board
described its purpose was to collect public input, convening a
“public forum to discuss” and “explore” revenue adequacy
topics “with a view to what, if any, changes the Board can and
should consider.” Revenue Adequacy at 4. The 2014 Notice
contemplated a possibility of future action by the Board in a
separate proceeding but made no commitment. Instead the
Board repeatedly stated that it was seeking input on a range of
issues related to revenue adequacy — a multi-faceted issue of
both analytical methodology and ratemaking policy discretion.
The March 2018 Decision confirmed that the Revenue
Adequacy proceeding was a “pre-rule informational and
hearing docket,” noting as well that “no rulemaking has been
initiated” and that the Board “has not determined the next
action it will take relating to this proceeding.” Decision (Mar.
28, 2018) at 1. The Board continued throughout this period to
address related matters in other proceedings, like the
rulemaking docket discussed in the April 2014 Notice.
The remaining record confirms this understanding of the
purpose of the Revenue Adequacy proceeding. The Board did
not file a notice or advance notice of proposed rulemaking to
modify its basic revenue adequacy framework, as the League
suggests, Pet. Reply Br. at 3–7, 9. The Board instead addressed
related issues in separate rulemakings and rate-making
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adjudication proceedings, including rulemaking dockets and
rate case adjudications.1
The League’s argument by analogy to Fox Television
Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir.), modified on
reh’g, 293 F.3d 537 (D.C. Cir. 2002), is flawed. The League
interprets the closing of the Revenue Adequacy docket to new
comments without a rulemaking or closure decision as a final
Board decision to retain its current revenue adequacy
framework. Pet. Reply Br. at 4–6. But in Fox Television, the
court concluded the decision to retain a slate of broadcast
ownership rules was final agency action because Congress had
required biennial review of its rules, publication of its
“determination” about whether they remained “necessary in the
public interest,” 280 F.3d at 1033–34, 1037 (internal citations
omitted), and to undertake a rulemaking to modify or repeal a
rule found to be no longer necessary, id. at 1033–34. The court
reasoned that the agency’s determination certain rules
remained necessary was tantamount to a reviewable “decision
not to initiate a rulemaking” that it would have been statutorily
required to undertake had it reached a contrary conclusion
about the rules’ continued necessity. Id. at 1038.
Congress created a different regulatory framework for
railroads and shippers. See Part I, supra. Indeed, the Board
considers itself “free to forgo rulemaking in favor of ‘the case-
by-case evolution of statutory standards’ via ‘individual, ad
hoc litigation’ in rate cases under the revenue adequacy
1
See, e.g., Joint Pet. for Rulemaking to Establish a Voluntary Arb.
Program for Small Rate Disps., EP 765 (STB served Dec. 19, 2022);
Final Offer Rate Rev., EP 755 (STB served Dec. 19, 2022); Omaha
Pub. Power Dist. v. Union Pac. R.R., NOR 42173 (STB served Oct.
3, 2022); Mkt. Dominance Streamlined Approach, EP 756 (STB
served Aug. 3, 2020); Revisions to the Cost-of-Capital Composite
R.R. Criteria, EP 664 (STB served Oct. 25, 2017).
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constraint.” Bd. Br. 25 (quoting SEC v. Chenery Corp., 332
U.S. 194, 203 (1947)). The League identifies no support for a
contrary interpretation that would mandate the Board forthwith
to commence a rulemaking or close the Revenue Adequacy
proceeding. Absent such obligation, the Board’s decision
whether to proceed by rulemaking is the type of discretionary
decision where reliance on the APA is generally misplaced.
To the extent the League relies on TRAC, 750 F.2d 70, to
“compel agency action unlawfully withheld or unreasonably
delayed,” 5 U.S.C. § 706(1), the court has jurisdiction to
review such a section 706(1) claim “only where a [petitioner]
asserts that an agency failed to take a discrete agency action
that it is required to take.” Norton v. S. Utah Wilderness All.,
542 U.S. 55, 64 (2004) (emphasis in original). As described,
the League has not demonstrated that the Board is required to
take any specific action with respect to the Revenue Adequacy
docket. Accordingly, the TRAC claim fails.
After all, the League has the option, which it does not
deny, cf. Pet. Reply Br. at 16–17, to file a petition for a
rulemaking by the Board to reform the Revenue Adequacy
framework. Board regulations provide that any interested party
may file a petition for rulemaking and the Board must respond
within 120 days. See 49 C.F.R. § 1110.2. The League is not a
stranger to filing rulemaking petitions with the Board. See,
e.g., Pet. of W. Coal Traffic League for Rulemaking to Abolish
Use of the Multi-Stage DCF Model in Determining R.R.
Indus.’s Cost of Equity Capital, EP 664 (Sub-No. 2) (STB
served Dec. 20, 2013) (cited in the 2014 Notice on Revenue
Adequacy at 4 n.6). Absent an explanation why this remedy is
unavailable, mandamus is reserved for the rare case where a
party has no other available remedy to obtain the relief sought.
In re Tennant, 359 F.3d at 529–30; see Cheney, 542 U.S. at
380–81.
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Accordingly, the court dismisses the petition for
mandamus for lack of jurisdiction.