Daniels v. Union Pacific Railroad

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2008 Decided July 1, 2008

No. 07-5114

CHARLES DANIELS AND

BROTHERHOOD OF LOCOMOTIVE ENGINEERS

AND TRAINMEN, CENTRAL REGION,

APPELLANTS

v.

UNION PACIFIC RAILROAD COMPANY ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 06cv00939)

Thomas Geoghegan argued the cause for the appellants.

Edgar James was on brief.

Marian L. Borum, Assistant United States Attorney, argued

the cause for the federal appellees. Jeffrey A. Taylor, United

States Attorney, and Michael J. Ryan, Assistant United States

Attorney, were on brief. R. Craig Lawrence, Assistant United

States Attorney, entered an appearance.

Donald J. Munro argued the cause for appellee Union

Pacific Railroad Company. Henry N. Carnaby and Jeffrey D.

Fox entered appearances.

2

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.*

KAREN LECRAFT HENDERSON, Circuit Judge: Appellants

Charles Daniels and the Brotherhood of Locomotive Engineers

and Trainmen (BLET) appeal the district court’s dismissal of

their complaint against the Federal Railroad Administration

(FRA), the Locomotive Engineer Review Board (LERB) and the

Union Pacific Railroad Company (Union Pacific). See Daniels

v. Union Pac. R.R., 480 F. Supp. 2d 191 (D.D.C. 2007). Daniels

and the BLET allege that the defendants violated the Due

Process Clause of the Fifth Amendment by demoting Daniels

and six other locomotive engineers from Class I locomotive

engineers to Class III student engineers without a hearing.1 The

district court dismissed the claims for failure to exhaust

administrative remedies and, alternatively, for lack of subject

matter jurisdiction. For the reasons that follow, we affirm the

dismissal for lack of subject matter jurisdiction.

I.

Pursuant to authority delegated by the Secretary of the

United States Department of Transportation (Secretary) acting

under The Rail Safety Improvement Act of 1988, Pub. L. No.

100-342 § 4, 102 Stat. 624 (1988) (recodified at 49 U.S.C.

§ 20135), in 1991 the FRA adopted a certification program for

*

Circuit Judge BROWN concurs in the opinion of the Court except

as to footnotes 8, 9 and 13.

1

The BLET “represents not only plaintiff Daniels but [the six]

other engineers named [in the complaint] who have lost their Class I

licenses without a hearing or other due process.” First Am. Compl.

¶ 5.

3

locomotive engineers.2 See Qualifications for Locomotive

Engineers, 56 Fed. Reg. 28,228 (1991) (codified at 49 C.F.R. pt.

240). Although the FRA does not test or certify engineers itself,

its regulations require each railroad to adopt training and

certification programs that meet minimum requirements, see,

e.g., 49 C.F.R. §§ 240.1, 240.101, and, regardless of differences

among the individual railroads’ programs, all railroads must

“employ standard methods for identifying qualified locomotive

engineers and monitoring their performance,” 56 Fed. Reg. at

28,228, including procedures governing certification and

revocation of certificates, see, e.g., 49 C.F.R. §§ 240.211,

240.219, 240.117, 240.307. For example, before certifying (or

recertifying) a locomotive engineer, a railroad must “determine

that the person has demonstrated . . . the skills to safely operate

locomotives or locomotives and trains, including the proper

application of the railroad’s rules and practices for the safe

operation of locomotives or trains, in the most demanding class

or type of service that the person will be permitted to perform.”

Id. § 240.211(a). If a prospective engineer is denied

certification (or recertification in the case of a certified

engineer), the “railroad shall notify [the] candidate for

certification or recertification of information known to the

railroad that forms the basis for denying the person certification

and provide the person a reasonable opportunity to explain or

rebut that adverse information in writing prior to denying

certification.” Id. § 240.219(a). Once certified, an engineer

must undergo periodic retesting and “[a] certified engineer who

has demonstrated a failure to comply . . . with railroad rules and

practices for the safe operation of trains shall have his or her

certification revoked.” Id. § 240.117(c)(1). Before revoking an

engineer’s certification, the railroad must “provide notice of the

reason for the suspension, the pending revocation, and an

2

The FRA’s delegated authority is set forth in 49 C.F.R.

§ 1.49(m).

4

opportunity for a hearing before a presiding officer other than

the investigating officer.” Id. § 240.307(b).

The FRA reviews the railroad’s decision to deny

certification/recertification or to revoke a certification. See 49

C.F.R. § 240.401(a). The FRA “has delegated initial

responsibility for adjudicating such disputes to the Locomotive

Engineer Review Board.” Id. § 240.401(b). “If adversely

affected by the Locomotive Engineer Review Board decision,

either the petitioner before the Board or the railroad involved

shall have a right to an administrative proceeding [before an

FRA Administrative Hearing Officer].” Id. §§ 240.407(a),

240.409. The Administrative Hearing Officer (AHO) hearing is

“a de novo hearing to find the relevant facts and determine the

correct application of [49 C.F.R. Part 240] to those facts.” Id.

§ 240.409(c). “Any party aggrieved by the [AHO’s] decision

may file an appeal [with the FRA Administrator].” Id.

§ 240.411(a). “The Administrator may remand, vacate, affirm,

reverse, alter or modify the decision of the presiding officer and

the Administrator's decision constitutes final agency action

except where the terms of the Administrator's decision (for

example, remanding a case to the presiding officer) show that

the parties’ administrative remedies have not been exhausted.”

Id. § 240.411(e).

Daniels was hired by Union Pacific in August 1998. On

July 14, 1999, his “Class I certificate” to operate a locomotive

became effective but two months later, on September 3, 1999,

Union Pacific required Daniels to undergo additional evaluation.

After receiving low scores on the re-evaluation, on September

8, 1999, Daniels was demoted from a Class I engineer to a Class

III student engineer. Union Pacific did not provide Daniels with

a hearing before or after his demotion. Following his demotion,

Daniels was given approximately six months to requalify as a

Class I engineer. As a student engineer Daniels completed

several railroad trips but also failed several certification

5

evaluations and Union Pacific eventually terminated him by

letter on March 1, 2000. From 2003 to 2006, Union Pacific also

demoted the six other Class I engineers represented by BLET to

Class III student engineers without providing hearings. First

Am. Compl. ¶ 3. Unlike Daniels, however, the other engineers

were recertified and recovered their Class I certificates.

Following his termination, Daniels petitioned for review by

the LERB on August 2, 2000, asserting that Union Pacific

demoted him from a Class I engineer without providing a

hearing as required by 49 C.F.R. § 240.307 and improperly

terminated him. On January 31, 2001, the LERB denied

Daniel’s petition, finding “no merit” in Daniels’s argument

because “the instant case involves the denial of certification,

rather than the revocation of certification.” Review and

Determinations Concerning Union Pacific Railroad Company’s

Decision to Deny Mr. C. L. Daniels Locomotive Engineer

Certification, FRA Docket No. EQAL 00-51, at 3 (Fed. R.R.

Admin. Jan. 31, 2001) (second emphasis added). The LERB

concluded that Daniels’s “rights in this case are properly

governed by 49 C.F.R. 240.219, which does not require a

railroad to convene a hearing.”3 Id.

Acting on behalf of Daniels, the BLET then requested an

administrative hearing before the AHO on February 16, 2001.

On April 19, 2006, the AHO dismissed BLET’s appeal with

3

The LERB correctly concluded that Union Pacific’s denial of

Daniels’s recertification is governed by section 240.219. See 49

C.F.R. § 240.219 (governing denial of “certification or

recertification”). Before Daniels attempted recertification, however,

Union Pacific demoted Daniels from a certified engineer (Class I) to

a Class III student engineer, an action the LERB ignored in its

analysis.

6

prejudice.4 C.L. Daniels, Decision and Order of Dismissal, FRA

Docket No. EQAL 00-51 (Fed. R.R. Admin. Apr. 19, 2006).

Rather than appealing to the FRA Administrator, Daniels and

the BLET filed a complaint in district court against Union

Pacific, the FRA and the LERB.5 The complaint is styled a

“Bivens action” and, in Count I, alleges that Union Pacific

deprived the engineers of their liberty and property interests

without due process in violation of the Fifth Amendment.6 First

Am. Compl. ¶¶ 1, 73-77. Counts II and III allege that the FRA

and the LERB violated the engineers’ right to procedural due

process by repeatedly “acquiesc[ing] and ratif[ying] and

participat[ing] in the actions of defendant Union Pacific” and

“demonstrat[ing] their clear bias in favor of [Union Pacific]”

during the administrative hearings. Id. ¶¶ 82, 85.

After filing the complaint in district court, Daniels appealed

the AHO’s decision to the FRA Administrator, contending that

the AHO had improperly failed to address whether Daniels was

entitled to a hearing before he was demoted and that the AHO

was “bias[ed] against him and . . . the case ha[d] been

irreparably tainted with error.” Appeal of C.L. Daniels, The

Administrator’s Final Decision, FRA Docket No. EQAL 2000-

51, at 5 (Fed. R.R. Admin. July 31, 2006) (Daniels Order). On

4

We note with dismay the fact that the AHO took more than five

years to reach his decision.

5

The defendants argue (and the district court agreed) that Daniels

and the six other engineers failed to exhaust their administrative

remedies because they filed their complaint before appealing the

AHO’s decision to the FRA Administrator. See infra n.9.

6

The holding in Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 389 (1971), permits a plaintiff to

bring a damages action against a federal officer/employee for the

alleged violation of his constitutional rights.

7

July 31, 2006, the FRA Administrator held that Daniels had

waived the issue of his right to a hearing by failing to raise it

before the AHO; in addition, the Administrator found “no error

of law . . . and no evidence of bias” on the AHO’s part.7 Id.

Meanwhile, in the district court proceedings, the defendants

moved to dismiss the plaintiffs’ complaint for lack of

jurisdiction. On March 29, 2007, the district court dismissed the

complaint under Federal Rule of Civil Procedure 12(b)(1),

concluding that it lacked subject matter jurisdiction because

Daniels and the other engineers failed to exhaust their

administrative remedies. Daniels, 480 F. Supp. 2d at 194-95.

As an alternative ground for dismissal, it held that the Hobbs

Act, 28 U.S.C. § 2342(7), vests the court of appeals with

7

Of the six other engineers—all of whom were eventually

recertified after being demoted to Class III student engineers—three

did not initiate any administrative action at all: as of the date of oral

argument, one had an LERB petition pending, one had an AHO

petition pending and the sixth—K.L. Hensley—had received an

adverse Administrator’s decision. See Appeal of K.L. Hensley, The

Administrator’s Final Decision, FRA Docket No. EQAL 2003-56

(Fed. R.R. Admin. Feb. 1, 2008) (Hensley Order). Like Daniels,

Hensley argued that Union Pacific improperly denied him a hearing

as required by 49 C.F.R. § 240.307 when it demoted him. Id. at 4.

Acknowledging that “Hensley’s argument has a superficial, gut-level

appeal [and] there is logic to the suggestion that Hensley has been

adversely affected,” the Administrator nonetheless concluded that

section 240.307 “clearly states that it is invoked only upon revocation

of certification [and] [t]here is nothing in the regulation which

provides that a diminution in the quality of a license is to be

considered to be a revocation under the regulation or to otherwise

invoke its provisions.” Id. at 4-5. Unlike Daniels, Hensley initiated

his challenge to the Administrator’s decision in this Court. See K.L.

Hensley v. Fed. R.R. Admin., No. 08-1143 (D.C. Cir. filed Apr. 1,

2008).

8

exclusive jurisdiction over the claims. Id. at 195-96.8 The

plaintiffs filed a timely notice of appeal.

II.

“We review the district court’s legal conclusions de novo

. . . [and] ‘accept as true the facts that [the plaintiffs] allege[] in

[their] complaint’ in reviewing the district court’s disposition of

the defendants’ motion to dismiss.” Rasul v. Meyers, 512 F.3d

644, 654 (D.C. Cir. 2008) (quoting Cummings v. Dep’t of the

Navy, 279 F.3d 1051, 1053 (D.C. Cir. 2002)) (alterations in

Rasul). Throughout the administrative proceedings as well as in

district court and before us, the defendants have maintained that

the plaintiffs’ Class I certificates were not “revoked” but that the

plaintiffs were instead “demoted” from Class I engineers to

Class III student engineers. Because the regulations contain no

provision for a hearing attendant on demotion, they continue,

they violated no regulation (and thus no constitutional provision)

in not providing one. The defendants fail to add that the

regulations do not mention “demotion” at all. While they have

applied various labels to the demotions, see, e.g., Federal

Appellees’ Br. 36 n.20 (referring to revocation of Daniels’s

Class I certificate as “reclassifi[cation],” or “recertifi[cation]

from Class I status to Class III status”); Hensley Order 5

(referring to revocation of Hensley’s Class I certification as “a

diminution in the quality of a license”), they have consistently

avoided calling them “revocations”—attempting to similarly

avoid the otherwise plain applicability of 49 C.F.R. § 240.307.

But the plaintiffs’ demotions resulted in the loss of their Class

8

Count I consists of both the Bivens damages claim and a claim

for injunctive relief. First Am. Compl. ¶ 77. The plaintiffs do not

appeal the dismissal of the damages claim, see Appellants’ Br. 2 n.1,

and therefore we need not address the defendants’ alternative “non-

state actor” ground for dismissal. See Appellee Union Pacific’s Br.

10-15.

9

I certifications and the only way certification can be “lost” under

the regulations is by revocation.

The district court held—as an alternative ground—that it

lacked subject matter jurisdiction over the plaintiffs’ claims

pursuant to the Hobbs Act.9 As noted earlier, the Hobbs Act

9

Although the district court also dismissed the complaint for

failure to exhaust, we do not reach the exhaustion issue for several

reasons. First, “[t]he word ‘exhaustion’ now describes two distinct

legal concepts.” Avocados Plus Inc. v. Veneman, 370 F.3d 1243,

1247 (D.C. Cir. 2004). The first “is a judicially created doctrine

requiring parties who seek to challenge agency action to exhaust

available administrative remedies before bringing their case to court”

(non-jurisdictional exhaustion). Id. “The second form of exhaustion

arises when Congress requires resort to the administrative process as

a predicate to judicial review” (jurisdictional exhaustion). Id. The

district court treated exhaustion as jurisdictional. Daniels, 480 F.

Supp. 2d at 194-95. But see Avocados, 370 F.3d at 1248 (“We

presume exhaustion is non-jurisdictional unless ‘Congress states in

clear, unequivocal terms that the judiciary is barred from hearing an

action until the administrative agency has come to a decision.’”

(quoting I.A.M. Nat’l Pension Fund Benefit Plan C v. Stockton Tri

Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984))). Second, the question

of exhaustion is fact specific and here varies with each plaintiff. For

example, while three of the seven engineers did not seek any

administrative review upon their respective demotions, engineers

Hensley and Daniels ultimately appealed to (and received decisions

from) the Administrator. See Hensley Order; Daniels Order. In

addition, Hobbs Act jurisdiction is triggered by “final agency

action[].” 28 U.S.C. § 2342(7). “It may be observed that the concepts

of ‘final decision’ and ‘exhaustion’ are often closely intertwined and

sometimes confused.” Bethlehem Steel Corp. v. EPA, 669 F.2d 903,

908 (3d Cir. 1982). “Finality and exhaustion are not identical,

however, no matter how often they converge” because “exhaustion

refers to the steps which the litigant must take, whereas finality refers

to the conclusion of activity by the agency.” Id. For the purpose of

analyzing—and affirming—the district court’s alternative holding, we

10

provides that “[t]he court of appeals (other than the United

States Court of Appeals for the Federal Circuit) has exclusive

jurisdiction to enjoin, set aside, suspend (in whole or in part), or

to determine the validity of . . . all final agency actions described

in [49 U.S.C. § 20114(c)].” 28 U.S.C. § 2342(7) (emphasis

added). Included in “all final agency actions” described in

section 20144(c) is “final action of the Secretary of

Transportation.” See also Carpenter v. Mineta, 432 F.3d 1029,

1032 (9th Cir. 2005) (FRA Administrator’s affirmance of

railroad’s denial of engineer certification constitutes final

agency action subject to jurisdiction of circuit court under

Hobbs Act); cf. Atchison, Topeka & Santa Fe Ry. v. Peña, 44

F.3d 437, 441 (7th Cir. 1994) (FRA Chief Counsel’s letter and

FRA Federal Register publication interpreting Hours of Service

Act of 1907, 45 U.S.C. §§ 61-66, constitute final agency action

subject to exclusive jurisdiction of circuit court pursuant to

Hobbs Act), aff’d sub nom., Bhd. v. Atchison, Topeka & Santa

Fe R.R., 516 U.S. 152 (1996).

Count II of the plaintiffs’ complaint alleges that “LERB and

FRA have acquiesced in and ratified and participated in the

actions of defendant Union Pacific to deprive plaintiff Daniels

and other locomotive engineers . . . of their rights under the Due

Process Clause of the Fifth Amendment . . . by allowing Union

Pacific to revoke a Class I certificate without any hearing.” First

Am. Compl. ¶¶ 82-83. Count III alleges that the LERB and the

FRA “demonstrated their clear bias in favor of the defendant

Union Pacific in violation of the Due Process clause of the Fifth

Amendment.” Id. ¶ 85. Because Counts II and III seek review

of “final agency action[]”—namely, the denial of the plaintiffs’

petitions—the Hobbs Act would give exclusive jurisdiction over

their claims to this Court. This does not mean, however, that we

assume that all of the plaintiffs have satisfied exhaustion and finality

requirements.

11

could have necessarily exercised jurisdiction over each

plaintiff’s claim if the petition for review had been filed with us

because not every plaintiff, it appears, supra n.9, may have

satisfied the Hobbs Act’s finality requirement.10 See 28 U.S.C.

§ 2342(7) (court of appeals has exclusive jurisdiction over all

“final agency actions”) (emphasis added). In any event,

notwithstanding the justiciability vel non of each plaintiff’s

claims in this court, the district court lacks subject matter

jurisdiction over Count II and Count III because those claims,

once final, are subject to this Court’s exclusive jurisdiction

pursuant to the Hobbs Act. See Telecomms. Research & Action

Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984) (“TRAC”)

(“[W]here a statute commits review of agency action to the

Court of Appeals, any suit seeking relief that might affect the

Circuit Court’s future jurisdiction is subject to the exclusive

review of the Court of Appeals.”).

Count I—brought against Union Pacific only—alleges that

Union Pacific violated the Due Process Clause of the Fifth

Amendment by failing to “provide a prior hearing or prompt

post deprivation hearing to determine if there is the basis for

revocation of a Class I certificate under federal regulations.” Id.

¶ 74. Union Pacific “acts under color of federal law,” id. ¶ 1,

the plaintiffs maintain, and they seek injunctive relief to “require

defendant Union Pacific to hold a prior or prompt post

deprivation hearing,” “expunge any . . . reference to the

revocation of a license as to [any] other engineer when such

revocation of a license occurred without a prior hearing,”

“reinstate plaintiff Daniels as a locomotive engineer with the

10

“Final agency action” can occur at all intermediate steps of FRA

review. See 49 C.F.R. § 240.411(f) (FRA Administrator’s decision

constitutes “final agency action”); id. § 240.411(a) (AHO’s decision

constitutes “final agency action” if no timely appeal of AHO’s

decision); id. § 240.407(c) (LERB decision constitutes “final agency

action” if no timely appeal of LERB decision).

12

right to use his Class I certificate” and “[g]rant plaintiff Daniels

his full back pay and benefits and other damages”—the precise

relief sought from the FRA and the LERB in Counts II and III.11

Id. ¶ 77. Notwithstanding their having named only Union

Pacific in Count I, we construe Count I as a challenge to the

actions of the FRA and the LERB as well for two reasons. First,

the standards and procedures governing certification and the

revocation of certifications are codified in federal regulations.

See 49 C.F.R. pt. 240. Union Pacific’s denial of a hearing is

thus based on its interpretation of the FRA regulations, an

interpretation the FRA has upheld. See Hensley Order 5 (“There

is nothing in [49 C.F.R. § 240.307] which provides that a

diminution in the quality of a license is to be considered to be a

revocation under the regulation or to otherwise invoke its

provisions.”). Accordingly, to obtain the relief sought, the

plaintiffs must challenge the FRA’s interpretation of its

regulations as well as Union Pacific’s application of the

regulations. Otherwise, the plaintiffs are circumventing review

of the FRA’s regulations in this Court (provided for by the

Congress under the Hobbs Act) by instead indirectly—in Count

I—seeking review of the regulations in district court. See Bright

v. Lehman, 725 F.2d 788, 790 (D.C. Cir. 1984) (“We will not

allow appellant to circumvent [an] appeals procedure defined by

Congress simply by casting a [different] label on his claim.”).

11

In Count II, the plaintiffs seek to require the FRA to “issue an

order declaring the actions of defendant Union Pacific to be in

violation of applicable and binding federal regulations,” “reinstate[]

[Daniels] as a certified engineer with full back-pay and benefits” and

“notify all affected members of plaintiff BLET that it will comply with

their rights under federal regulations.” First Am. Compl. ¶ 83. In

Count III, the plaintiffs request the district court to “[d]eclare that

defendant FRA has violated Daniels’ [sic] right to procedural Due

Process” and to order the FRA to “submit a plan to ensure that the

claim of plaintiff Daniels be decided in an impartial and neutral

manner and to purge the administrative process of bias.” Id. ¶ 85.

13

Second, the plaintiffs maintain that their Class I

certifications were effectively revoked when they were demoted

from Class I to Class III. See First Am. Compl. ¶¶ 56, 62, 69,

74, 77; see also Appellants’ Br. 10, 12. Revocation is subject to

a three-tiered level of administrative review, see supra p. 4, and

thus a revocation challenge is ultimately aimed at the FRA, not

at Union Pacific alone. Accordingly, we construe Count I as a

challenge to the other two defendants’ actions as well and thus

within the Hobbs Act’s jurisdictional reach.12

Relying on the Supreme Court’s holding in McNary v.

Haitian Refugee Center, Inc., 498 U.S. 479 (1991), the plaintiffs

alternatively maintain that the district court has jurisdiction

notwithstanding the Hobbs Act because all three counts involve

a constitutional challenge. In McNary, undocumented

immigrants who were denied amnesty status filed a class action

12

We have cautioned against adopting a narrow interpretation of

another exclusive jurisdiction vesting statute:

[T]here are compelling policy reasons for holding

that the jurisdiction of the Court of Appeals is

exclusive. Appellate courts develop an expertise

concerning the agencies assigned them for review.

Exclusive jurisdiction promotes judicial economy and

fairness to the litigants by taking advantage of that

expertise. In addition, exclusive jurisdiction

eliminates duplicative and potentially conflicting

review, and the delay and expense incidental thereto.

TRAC, 750 F.2d at 78 (interpreting judicial review provision for final

action of Federal Communications Commission, 28 U.S.C. § 2342(1))

(citation omitted); see also John Doe, Inc. v. DEA, 484 F.3d 561, 570

(D.C. Cir. 2007) (narrow interpretation of judicial review provision

of Controlled Substances Act, 21 U.S.C. § 877, would “encourage[]

forum shopping and encourage[] dissatisfied claimants to ‘jump the

gun’ by going directly to the district court to develop their case instead

of exhausting their administrative remedies before the agency”).

14

in district court claiming that the application process prescribed

by the Immigration and Naturalization Service (INS) violated

the Due Process Clause of the Fifth Amendment. Id. at 487-88.

The Court upheld the district court’s jurisdiction to consider the

plaintiffs’ due process claim even though the Immigration and

Nationality Act, § 210(e), 8 U.S.C. § 1160(e) (INA), barred

judicial review of all INS determinations regarding the

immigrants other than deportation decisions. Id. at 491-94. The

plaintiffs insist that they “have brought what is clearly a

McNary-type case,” Appellants’ Br. 23, reading McNary to

create two exceptions to a statutory grant of exclusive

jurisdiction to the court of appeals: (1) “constitutional violations

that arise from a broad ‘pattern and practice’ of agency

misconduct,” id., and (2) “no possibility of ‘meaningful review’

of the challenged practice in the Court of Appeals,” Reply Br.

10 (quoting McNary, 498 U.S. at 497). The plaintiffs misread

McNary.

In McNary, the Court did not create an exception to the

INA’s jurisdictional bar simply because the plaintiffs mounted

a constitutional challenge—that is, the nature of the claim itself

does not determine whether the jurisdictional bar applies.

Instead, the availability of effective judicial review is the

touchstone of the McNary exception. As the Court explained,

“[w]ere we to hold otherwise and instead require respondents to

avail themselves of the limited judicial review procedures set

forth in § 210(e) of the INA, meaningful judicial review of their

statutory and constitutional claims would be foreclosed.” 498

U.S. at 484 (emphasis added). See also John Doe, Inc. v. DEA,

484 F.3d 561, 569 (D.C. Cir. 2007) (“[T]he holding in McNary

cannot be divorced from the Court’s obvious concern that,

absent district court review of the McNary plaintiffs’ claims,

meaningful judicial review would have been entirely

foreclosed.”); TRAC, 750 F.2d at 78 (“There may be a small

category of cases in which the underlying claim is not subject to

the jurisdiction of the Court of Appeals (and thus adjudication

15

of the claim in the District Court will not affect any future

statutory review authority of the Circuit Court.) In such cases,

where a denial of review in the District Court will truly

foreclose all judicial review, district court review might be

predicated on the general federal question jurisdiction statute, 28

U.S.C. § 1331.”); see also Carpenter, 432 F.3d at 1032-34.

Accordingly, because the applicability of the McNary exception

turns on the availability of judicial review without regard to the

nature of the plaintiff’s claim, we would have exclusive

jurisdiction over the plaintiffs’ constitutional challenges.

Again relying on McNary, the plaintiffs argue that the

district court has jurisdiction over their claims because

otherwise “there is no possibility of ‘meaningful review’ of the

challenged practice.” Reply Br. 10 (quoting McNary, 498 U.S.

at 497). The Hobbs Act, however, differs significantly from the

INA—while the INA strips all courts of jurisdiction to review

INS actions other than deportation decisions, the Hobbs Act

vests one court—the court of appeals—with jurisdiction to

review all final FRA action. Accordingly, the Hobbs Act does

not deprive the plaintiffs of “meaningful judicial review of their

statutory and constitutional claims,” McNary, 498 U.S. at 494,

because they can seek such review—in the circuit court.13

13

As noted supra pp. 10-11, we do not hold that we could in fact

exercise jurisdiction over each plaintiff’s claim because of finality

questions. Instead, we limit our holding to affirming the district

court’s dismissal for lack of subject matter jurisdiction. The plaintiffs

also argue that we lack the power to grant the relief sought because

“Union Pacific does not even suggest how the Court of Appeals could

give prospective class-type relief against the carrier itself, or reinstate

the licenses of the engineers or get the FRA or Union Pacific to award

back pay.” Reply Br. 14. But the Hobbs Act grants the court of

appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole

or in part), or to determine the validity of . . . all final actions

described in [49 U.S.C. § 20114],” 28 U.S.C. § 2342(7), which

16

For the foregoing reasons, we affirm the district court’s

dismissal of the plaintiffs’ claims for lack of subject matter

jurisdiction under the Hobbs Act.

So ordered.

includes the FRA’s administration of the locomotive engineer

certification program. See 49 U.S.C. §§ 20114, 20135; 49 C.F.R.

§ 1.49(m).