The opinion
Opinion issued December 31, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00794-CV
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IN RE DEMAREE REED, Relator
Original Proceeding on Petition for Writ of Mandamus
OPINION DISSENTING FROM THE DENIAL OF REHEARING
Relator Demaree Reed brought suit in the court below for damages under the
Federal Employer’s Liability Act (“FELA”). Six months after denying defendant
Rail Link, Inc.’s motion for summary judgment on the issue of its status as a
common carrier under FELA, the court below referred the question to the federal
Surface Transportation Board (“STB”) for determination under the doctrine of
“primary jurisdiction.” The STB does not have primary jurisdiction over the
question; indeed, it does not have any jurisdiction at all.
This is how the STB itself describes its jurisdiction:
The Surface Transportation Board is an independent federal
agency that is charged with the economic regulation of various modes
of surface transportation, primarily freight rail.
The agency has jurisdiction over railroad rate, practice, and
service issues and rail restructuring transactions, including mergers,
line sales, line construction, and line abandonments. The STB also
has jurisdiction over certain passenger rail matters, the intercity bus
industry, non-energy pipelines, household goods carriers’ tariffs, and
rate regulation of non-contiguous domestic water transportation
(marine freight shipping involving the mainland United States,
Hawaii, Alaska, Puerto Rico, and other U.S. territories and
possessions).
https://www.stb.gov/about-stb/ (Last accessed Dec. 23, 2024). It is a rate-setting
body, and it does not have jurisdiction to determine common-carrier status for tort
liability under FELA. The ICC Termination of Act of 1995, by which Congress
created the STB, does not confer such jurisdiction. The STB Reauthorization Act
of 2015, by which Congress established the STB as a wholly independent federal
agency, does not confer such jurisdiction. See generally 49 U.S.C. § 10501. One
might scour the entirety of the United States Code and the Federal Register and
find nary a trace of such jurisdiction.
The doctrine of primary jurisdiction permits a court to refer a question to an
agency only “when both have authority to make initial determinations in a
dispute.” Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.
2002) (emphasis in original); see In re Reed, No. 01-22-00794-CV, 2024 WL
2
3503062, at *1 (Tex. App.—Houston [1st Dist.] July 23, 2024, orig. proceeding)
(quoting Subaru of Am., 84 S.W.3d at 221). The court below is possessed of that
authority, but the STB is not. The trial court thus abused its discretion, and shirked
its duties to the State of Texas, in making the referral to the STB. This Court
should have granted relief to the relator.
Peter Kelly
Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman
Justice Kelly, dissenting to the denial of rehearing.
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