holding that, “when a reopening petition rested on ‘material error,’ the court has no jurisdiction to review a denial of the petition”
How later courts described this case
- holding that, “when a reopening petition rested on ‘material error,’ the court has no jurisdiction to review a denial of the petition”
- holding that evidence that “could have been placed before the Board in the original proceeding” is not new evidence
- "[W]hen a reopening petition rested on 'material error,' the court has no jurisdiction to review a denial of the petition."
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________
Argued May 19, 2005 Decided June 24, 2005
No. 04-1280
TOWN OF SPRINGFIELD , NEW JERSEY, ET AL.,
PETITIONERS
v.
SURFACE TRANSPORTATION BOARD AND
UNITED STATES OF AMERICA,
RESPONDENTS
UNION COUNTY, NEW JERSEY AND
MORRISTOWN AND ERIE RAILWAY, INC.,
INTERVENORS
________
On Petition for Review of an Order of the
Surface Transportation Board
________
Scott N. Stone argued the cause and filed the briefs for
petitioners.
Cecelia H. Cannizzaro, Attorney, Surface Transportation
Board, argued the cause for respondents. With her on the brief
were Greer S. Goldman and Mark R. Haag, Attorneys, U.S.
Department of Justice, Ellen D. Hanson, General Counsel, and
Craig M. Keats, Deputy General Counsel.
2
John D. Heffner and John K. Fiorilla were on the brief for
intervenor Union County, New Jersey and Morristown and Erie
Railway, Inc. in support of respondents.
Before: RANDOLPH, GARLAND, and ROBERTS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: In July 2002, the Surface
Transportation Board awarded the Morristown and Erie Railway
a modified certificate of public convenience and necessity to
operate two previously-abandoned railway lines in New Jersey.
67 Fed. Reg. 44,928 (July 5, 2002). Those lines, which are
located in Union County, pass through five municipalities: the
Township of Springfield, the City of Summit, and the Boroughs
of Kenilworth, Roselle, and Roselle Park. The State of New
Jersey owns the rail lines. The State vested Union County with
the authority to oversee the rehabilitation and future use of the
lines. Union County entered into a written agreement with the
Morristown and Erie Railway to perform the rehabilitation work
and operate the lines.
In January 2004, the five municipalities, concerned about
several environmental and safety issues, filed a petition asking
the Board to reopen its July 2002 decision granting the modified
certificate. The Board denied the petition, and the municipalities
sought judicial review.
Under the Board’s regulation, a petition to reopen “must
state in detail the respects in which the proceeding involves
material error, new evidence, or substantially changed
circumstances.” 49 C.F.R. § 1115.4. The municipalities say
they satisfied the reopening regulation because Union County
first passed a resolution stating that the final stages of the
3
railway rehabilitation would not occur without the
municipalities’ approval and then passed a second resolution
authorizing the Morristown and Erie Railway to complete the
rehabilitation even though the municipalities had not consented.
According to the municipalities, none of which participated in
the original certificate proceeding, the county’s original
resolution “lulled” them into inaction during the proceeding.
This will not wash. The Board proceedings ended in July 2002.
Union County adopted the first resolution in August 2002, more
than a month later. Before passing the resolution, Union County
sent the municipalities several letters indicating that work would
not proceed without their consent, but these letters also came
after the Board’s action. It is therefore impossible to see how a
resolution and letters, dated after the Board’s proceeding ended,
could have lulled the municipalities into not participating. To
state the matter differently, the municipalities cannot show -- as
they must -- that the resolution or the letters materially affected
the Board’s disposition. Cf. 49 C.F.R. § 1115.3(b)(1). For
obvious reasons, the Board did not rely on those items in
reaching its decision.
The municipalities also tell us that the Board committed
error when it failed to mention evidence indicating that
hazardous wastes are present on the railway lines. Brief of
Petitioners at 3-4. We may review the Board’s denial of a
reopening petition if the petition was based upon new evidence
or changed circumstances. But when a reopening petition rested
on “material error,” the court has no jurisdiction to review a
denial of the petition. ICC v. Bhd. of Locomotive Eng’rs, 482
U.S. 270, 280 (1987). Otherwise the time for petitioning for
judicial review of the original decision could, in effect, be
extended indefinitely -- a reopening petition may be filed at any
time.
4
The municipalities’ hazardous waste evidence is not new;
it could have been placed before the Board in the original
proceeding. Indeed, the municipalities’ contentions on this
subject relied almost entirely on the administrative record
compiled by the Interstate Commerce Commission, the Board’s
predecessor, when it authorized abandonment of the lines in the
early 1990s. No circumstances changed between the time of the
Board’s decision and the filing of the reopening petition. Given
the absence of new evidence about, or changed circumstances
relating to, hazardous wastes, the municipalities’ reopening
petition amounted to nothing more than a claim that the Board
erred in its original decision. The Board’s refusal to reopen for
that reason is therefore not subject to judicial review. See
Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 (D.C.
Cir. 2000); see also Schoenbohm v. FCC, 204 F.3d 243, 250
(D.C. Cir. 2000).
Petition denied in part, dismissed in part.