Village of Barrington v. Surface Transportation Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2013 Decided July 18, 2014

No. 12-1485

VILLAGE OF BARRINGTON, ILLINOIS,

PETITIONER

v.

SURFACE TRANSPORTATION BOARD AND

UNITED STATES OF AMERICA,

RESPONDENTS

CANADIAN NATIONAL RAILWAY COMPANY

AND GRAND TRUNK CORPORATION,

INTERVENORS

On Petition for Review of an Order

of the Surface Transportation Board

Richard H. Streeter argued the cause and filed the briefs for

petitioner.

Theodore L. Hunt, Attorney, Surface Transportation Board,

argued the cause for respondents. With him on the brief were

Mary G. Sprague, Attorney, U.S. Department of Justice;

Raymond A. Atkins, General Counsel, Evelyn G. Kitay,

Associate General Counsel, and Theodore L. Hunt, Attorney,

Surface Transportation Board. Aaron P. Avila, Attorney, U.S.

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Department of Justice, and Craig M. Keats, Deputy General

Counsel, Surface Transportation Board, entered appearances.

Paul A. Cunningham, David A. Hirsh, and Theodore K.

Klick were on the brief for intervenors Canadian National

Railway Company and Grand Trunk Corporation in support of

respondents.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,

and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: The Village of Barrington, Illinois,

petitions for review of the Surface Transportation Board’s denial

of its request to reopen a 2008 proceeding in which the Board

approved a railroad’s acquisition of a Chicago-area railway

company. This marks the second time the Village has asked us

to “don our conductor’s cap for a ride” to review that

acquisition, Vill. of Barrington, Ill. v. STB, 636 F.3d 650, 657

(D.C. Cir. 2011). This time, the trip will be much shorter

because the Village’s jurisdictional ticket only permits us to

review its new evidence.

I

In 2008, the Surface Transportation Board (STB) approved

the acquisition of the EJ&E Railway Company by the Canadian

National Railway Company. The purpose of the acquisition was

to allow Canadian National to transfer train traffic from five of

its lines that enter the heavily congested Chicago area to EJ&E’s

main line, which encircles the city. Because the increased train

traffic on EJ&E’s line was expected to increase delays of

automotive traffic at highway intersections with that line, the

STB required Canadian National to pay for environmental

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mitigation at affected intersections as a condition of approval of

the acquisition. At two intersections, the STB concluded that

the effect of the acquisition on highway traffic was sufficient to

require Canadian National to pay for a grade separation -- that

is, construction of an underpass or overpass to allow traffic to

bypass the railroad entirely. Canadian Nat’l Ry. Co., STB

Finance Docket No. 35087, Decision No. 16, at 44 (Dec. 24,

2008), 2008 WL 8139694 [hereinafter 2008 STB Decision].

The Village of Barrington wanted a grade separation for one

of its highway crossings, too. But the STB determined that the

increase in train-caused traffic delay projected by 2015 at the

Barrington intersection did not approach the 40 hours per day

that the STB required before it would consider the imposition of

mitigation conditions. The Village then hired a consultant of its

own, whose report concluded that projected traffic congestion at

the U.S. 14 intersection in Barrington exceeded the STB’s 40-

hour threshold. In response, the STB performed a follow-up

assessment of Barrington traffic and once again concluded that

a grade separation in Barrington was unwarranted. 2008 STB

Decision at 45 & n.101.

In 2009, Barrington, along with a number of other parties,

petitioned this court for review of the STB’s approval of the

acquisition, as well as the associated mitigation conditions.

Because Barrington failed to cite its consultant’s traffic study in

its opening brief, the court declined to consider the study in

evaluating the Village’s challenge. Vill. of Barrington, Ill., 636

F.3d at 672. After considering the merits of the arguments that

had properly been raised, the court denied the petition for

review. Id.

Thereafter, Barrington asked its consultant to perform an

updated traffic projection, based in part on post-acquisition

traffic conditions. J.A. 370. Barrington’s new study again

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found that the projected traffic at the U.S. 14 intersection would

exceed the threshold for mitigation consideration, albeit by

fewer hours than its 2008 study. Armed with this new study,

Barrington asked the STB to reopen the proceeding and require

Canadian National to fund a grade separation at Barrington’s

intersection.

Pursuant to statute, the STB “may . . . reopen a proceeding”

based upon “material error, new evidence, or substantially

changed circumstances.” 49 U.S.C. § 722(c). Barrington

contended that its latest study constituted “new evidence” that

justified reopening. It also argued that the Board’s 2008

assessment contained “material errors” in its methodology that

rendered the Board’s original decision invalid.

In a lengthy opinion addressing Barrington’s claims, the

STB denied Barrington’s request to reopen the proceeding.

Canadian Nat’l Ry. Co., STB Finance Docket No. 35087,

Barrington Petition for Mitigation, at 2 (J.A. 488) (Nov. 7,

2012), 2012 WL 5458828 [hereinafter 2012 STB Decision].

The Board explained that, because Barrington’s 2011 study

made a weaker case for a grade separation than did its 2008

study, consideration of the new study would not change the

original outcome. Id. at 10 (J.A. 496). It also said, inter alia,

that exceeding the 40-hour-delay threshold was not sufficient to

justify a grade separation and that, in light of the other relevant

factors, a grade separation at U.S. 14 was unwarranted. Id. at

10-20 (J.A. 496-506).

Barrington now petitions for review of the STB’s denial of

its request to reopen the Board’s original decision.

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II

In its petition for review, Barrington renews its claims that

there were “material errors” in the STB’s initial decision to

approve Canadian National’s purchase of the EJ&E Railway

Company in 2008, and that, in any event, “new evidence”

warrants reopening.

Barrington’s claims of material error are outside our

jurisdiction. In ICC v. Brotherhood of Locomotive Engineers,

the Supreme Court held that, “where a party petitions an agency

for reconsideration on the ground of material error, i.e., on the

same record that was before the agency when it rendered its

original decision, an order which merely denies rehearing

of . . . [the prior] order is not itself reviewable.” 482 U.S. 270,

280 (1987) (BLE) (internal quotation marks omitted). That is so,

the Court said, even if the agency “order refusing

reconsideration discussed the merits of the [petitioners’] claims

at length,” as long as the agency’s “formal disposition is to deny

reconsideration, and . . . it makes no alteration in the underlying

order.” Id. In the instant case, the STB denied rehearing of its

2008 decision, and it made no alteration in that underlying order.

Accordingly, there is nothing more we can say about

Barrington’s claims of material error. See id. at 287 (dismissing,

for lack of jurisdiction, petition challenging the ICC’s refusal to

reconsider a prior order); Town of Springfield, N.J. v. STB, 412

F.3d 187, 189 (D.C. Cir. 2005) (holding that, “when a reopening

petition rested on ‘material error,’ the court has no jurisdiction

to review a denial of the petition”); Schoenbohm v. FCC, 204

F.3d 243, 250 (D.C. Cir. 2000) (holding that the court lacks

jurisdiction to review an agency’s denial of a petition for

reconsideration “unless the request for reconsideration was

based on new evidence or changed circumstances”).

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By contrast to its treatment of claims of material error, BLE

held that, “[i]f the petition that was denied sought reopening on

the basis of new evidence or changed circumstances review is

available.” 482 U.S. at 284. The piece of new evidence

Barrington submits is its 2011 study, which updated its 2008

vehicle delay projections based on mid-2011 observations of

Canadian National’s actual post-acquisition operations in

Barrington. 2012 STB Decision at 7 (J.A. 493). The STB

maintains that Barrington’s evidence is not really new because

most of the factors considered in the study were the same in

2008 and could have been raised at that time. See Town of

Springfield, 412 F.3d at 189 (holding that evidence that “could

have been placed before the Board in the original proceeding”

is not new evidence). But there is no dispute that observations

of 2011 train traffic could not have been put before the Board in

2008. Whether this new evidence (and this new evidence only)

was enough to warrant a change in the Board’s original decision

is a merits question; it is not a question of jurisdiction. As we

said in Fritsch v. ICC, as long as “the motion to reopen was

based on non-pretextual grounds of new matter or changed

circumstances,” we have jurisdiction to review its denial. 59

F.3d 248, 252 (D.C. Cir. 1995); see Advanced Commc’ns Corp.

v. FCC, 376 F.3d 1153, 1156 (D.C. Cir. 2004).

Although we have jurisdiction to review Barrington’s new

evidence claim, our standard of review is highly deferential. As

the Court said in BLE, “overturning [a] refusal to reopen

requires ‘a showing of the clearest abuse of discretion.’” 482

U.S. at 278 (quoting United States v. Pierce Auto Freight Lines,

Inc., 327 U.S. 515, 534-535 (1946)); see also Advanced

Commc’ns Corp., 376 F.3d at 1156; AT&T Corp. v. FCC, 363

F.3d 504, 509 (D.C. Cir. 2004). We find no such abuse here.

In refusing to reopen its 2008 decision, the STB noted that

Barrington’s 2011 post-acquisition study projected less impact

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on vehicle delay than did its 2008 pre-acquisition study: The

2011 study projected 98-100 hours of additional traffic delay per

day at the U.S. 14 intersection as a consequence of the

acquisition; the original study projected 135-205 hours. 2012

STB Decision at 8 (J.A. 494). It was not an abuse of discretion

for the STB to conclude that, if the traffic projected by the

original study was insufficient to warrant requiring a grade

separation, a lower post-acquisition projection “would not have

altered the outcome the Board previously reached.” Id. at 10

(J.A. 496).

In response, Barrington argues that the new study’s

projection of 98-100 additional hours of delay is significant

because the Board concluded in 2008 that a mere 40 hours of

additional delay was sufficient for an intersection to qualify as

“substantially affected” and, therefore, as a candidate for a grade

separation. But this ignores the fact that Barrington’s original

projection of 135-205 hours also exceeded the 40-hour mark.

As the Board explained, 40 hours of delay was merely the

threshold for consideration of mitigation measures; it “did not

automatically warrant any mitigation in the [original] [d]ecision,

much less a grade separation.” Id. Predicted vehicle delay was

only one of several factors the Board considered in determining

whether mitigation should be required at an intersection. In fact,

of the 13 intersections that met the threshold, the STB required

grade separations at only two. See id. at 11 (J.A. 497).

To the extent Barrington argues that the STB’s original

decision improperly weighed the significance of then-projected

delay, it is making a material error argument that we cannot

review. See W. Pac. Stockholders’ Protective Comm. v. ICC,

848 F.2d 1301, 1303 (D.C. Cir. 1988) (holding that a claim of

“new evidence” that is “really a challenge to” the analysis in an

agency’s original decision is unreviewable). This leaves only

the question of whether the new evidence regarding vehicle

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delay warranted a different decision. And as we have said,

because the new evidence projected less delay than the original

evidence, the Board did not abuse its discretion in concluding

that such evidence would not have changed its ultimate decision

about requiring a grade separation. See City of S. Bend, Ind. v.

STB, 566 F.3d 1166, 1171 (D.C. Cir. 2009) (finding that

agency’s refusal to reopen was justified because the new

evidence “did not require it to reverse its [original]

determination”); Advanced Commc’ns Corp., 376 F.3d at 1159

(same).1

III

Because we lack jurisdiction to consider Barrington’s

claims of material error, and because the STB did not abuse its

discretion in deciding that Barrington’s new evidence did not

warrant reopening the Board’s original decision, Barrington’s

petition for review by this court is

Denied.

1

We reach the same conclusion regarding Barrington’s contention

that the 2011 study shows that Barrington’s U.S. 14 intersection

received disparate treatment in comparison to intersections in other

towns. As the STB explained, its original decision examined

intersections on a case-by-case basis, and factors beyond vehicle delay

played an important role in its ultimate determinations. See 2012 STB

Decision at 13-16 (J.A. 499-502).