Record and brief — Dep't of Transp. v. Ass'n of Am. Railroads, 134 S. Ct. 2865 (2014) (No. 13-1080)

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Text

No. 13-1080

Title

Docketed

Department of Transportation. et al., Petitioners

Association of Amencan Railroads

March 11,2014

Linked with 13A678

Lower Ct: United States Court of Appeals for the Distnct of Columbia Circuit

Case Nos (12-5204)

Decision Date: July 2, 2013

Rehearing Denied: October 11, 2013

Questions Presented

~~~Date~—

Dec 27 2013

Dec 31 2013

Jan 27 2014

Jan 28 2014

Mar 10 2014

Mar 18 2014

Apr 10 2014

May 12 2014

May 27 2014

May 28 2014

Jun 16 2014

Jun 23 2014

Jul 21 2014

Aug 14 2014

Aug 21 2014

Sep 4 2014

~—_eSa ~S

~~~~~~~Proceedings and Orders~

Application (13A678) to extend the time to file a petition for a wnt of certioran from

January 9, 2014 to February 7, 2014, submitted to The Chief Justice

Application (13A678) granted by The Chief Justice extending the time to file until

February 7, 2014

Application (13A678) to extend further the time from February 7, 2014 to March 10

2014, submitted to The Chief Justice.

Application (13A678) granted by The Chief Justice extending the time to file until March

10, 2014

Petition for a writ of certiorari filed. (Response due April 10, 2014)

Order extending time to file response to petition to and including May 12, 2014

Brief amicus curiae of Professor Alexander Volokh filed

Brief of respondent Association of American Railroads in opposition filed

DISTRIBUTED for Conference of June 12, 2014

Reply of petitioner Department of Transportation filed (Distributed)

DISTRIBUTED for Conference of June 19, 2014

Petition GRANTED

The time to file the joint appendix and petitioners’ bnef on the merits Is extended to

and including August 14, 2014.

The time to file respondent's brief on the merits is extended to and including

September 22, 2014

Joint appendix filed. (Statement of costs filed.)

Brief of petitioner Department of Transportation filed

Brief amici curiae of Environmental Law and Policy Center, et al. filed

SET FOR ARGUMENT on Monday, December 8, 2014

Sep 22 2014

Sep 26 2014

Sep 29 2014

Oct 22 2014

Oct 27 2014

Dec 8 2014

Dec 19 2014

Mar 9 2015

Apr 10 2015

Brief of respondent Association of American Railroads filed.

Record requested from U.S.C.A. District of Columbia Circuit.

Record received from U.S.C.A. District of Columbia Circuit, the record is electronic.

Brief amicus curiae of Association of Independent Passenger Rail Operators filed.

Brief amicus curiae of Resolute Forest Products Inc. filed.

Brief amici curiae of Cato Institute, et al. filed.

Brief amici curiae of American Counci of Trustees and Alumni, et al. filed.

Brief amicus curiae of Center for Constitutional Jurisprudence filed.

Brief amicus curiae of Chamber of Commerce of the United States of America filed.

Brief amicus curiae of Center for the Rule of Law filed.

Brief amicus curiae of Professor Alexander Volokh filed.

Reply of petitioner Department of Transportation fied.

CIRCULATED.

Argued. For petitioners: Curtis E. Gannon, Assistant to the Soicitor General,

Department of Justice, Washington, D.C. For respondent: Thomas H. Dupree, Jr.,

Washington, D.C.

Letter from counsel for the petitioners updating authority. (Distributed)

Judgment VACATED and case REMANDED. Kennedy, J., delivered the opinion of the

Court, in which Roberts, C. J., and Scalia, Ginsburg, Breyer, Alto, Sotomayor, and

Kagan, JJ., joined. Alito, J., fled a concumng opinion. Thomas, J., fled an opinion

concurring in the judgment.

JUDGMENT ISSUED

PETITION

FOR

WRIT OF

CERTIORARI

13-1080

No.

In the Supreme Court of the Anited States.

DEPARTMENT OF TRANSPORTATION, ET AL.,

PETITIONERS

VD.

ASSOCIATION OF AMERICAN RAILROADS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DONALD B. VERRILLI, JR.

Soticitor General

Counsel of Record

STuART F. DELERY

Assistant Attorney General

EDWINS.KNEEDLER-_.

Deputy Solicitor General

CuRTIS E. GANNON

Assistant to the Solicitor

General.

MARK B. STERN

MICHAEL S. RAAB’

DANIEL TENNY

PATRICK G. NEMEROFF

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Section 207(a) of the Passenger Rail Investment

and Improvement Act of 2008, Pub. L. No. 110-432,

Div. B, 122 Stat. 4916, requires that the Federal Rail-

road Administration (FRA) and Amtrak “jointly * * *

develop” the metrics and standards for Amtrak’s per-

formance that will be used in part to determine wheth-

er the Surface Transportation Board (STB) will inves-

tigate a freight railroad for failing to provide the pref-

erence for Amtrak’s passenger trains that is required

by 49 U.S.C. 24308(c) (Supp. V 2011). In the event that

the FRA and Amtrak cannot agree on the metrics and

standards within 180 days, Section 207(d) of the Act

provides for the STB to “appoint an arbitrator to assist

the parties in resolving their disputes through binding

arbitration.” 122 Stat. 4917. The question presented is

whether Section 207 effects an unconstitutional delega-

tion of legislative power to a private entity.

(I)

PARTIES TO THE PROCEEDINGS

The four petitioners were the appellees in the court

of appeals: the United States Department of Transpor-

tation; Anthony Foxx, in his official capacity as Secre-

tary of Transportation; the Federal Railroad Admin-

istration; and Joseph C. Szabo, in his official capacity

as the Administrator of the Federal Railroad Admin-

istration.

The only appellant in the court of appeals was re-

spondent Association of American Railroads.

(II)

TABLE OF CONTENTS

Page

inspec erattinncienibansinsanndanmennennmentieel ii

AT 1

To 1

Constitutional and statutory provisions involved...................0-. 2

ee 2

Reasons for granting the petition........:.........scsscsesseseesseseeseneees 11

A. The government retained sufficient control over

the development and application of the Amtrak-

performance metrics and standards to avoid

NONGelegatioNn CONCEFMS.............cccsecescsessessccecesesserseneeees 12

1. Congress may condition the effectiveness of

regulatory provisions on the involvement or

approval of private entities ....................csceceeeeee 13

2. Any future sanctions against freight railroads

would be based on a governmental agency’s

determination that they failed to satisfy an

independent statutory obligation, not the

Amtrak-performance metrics and standards......18

B. The court of appeals erroneously treated Amtrak

as a private entity for purposes of nondelegation

C. The court of appeals’ invalidation of an important

component of an Act of Congress warrants this

EES Ce 24

EEE EE 25

TABLE OF AUTHORITIES

Cases:

Ashcroft v. ACLU, 542 U.S. 656 (2004)............ccceesseesesserenees 24

Blodgett v. Holden, 275 U.S. 142 (1927) ..........0ccscsesesseceseees 24

Bond v. United States, 131 S. Ct. 2355 (2011) -...0...........0 21

Boos v. Barry, 485 U.S. 312 (1988)...........cececsecssseseeesssereee 17

(IIT)

Cases—Continued: Page

Carter v. Carter Coal Co., 298 U.S. 238 (1936) .............. 10, 13

Currin v. Wallace, 306 U.S. 1 (1989) .............cceceeeeees 9, 13, 14

First Jersey Secs., Inc. v. Bergen, 605 F 2d 690 (3d

Cir. 1979), cert. denied, 444 U.S. 1074 (1980) ................... 16

Free Enter. Fund v. Public Co. Accounting

Oversight Bd., 130 S. Ct. 3138 (2010).........ccscsceseeereeees 21, 22

Gentiva Healthcare Corp. v. Sebelius, 723 F.3d 292

CENIET: CETL TI nscricednenieternsensesinipininaiiiinaantiinmmnsnatinninnmmenns 17

Gonzales v. Carhart, 550 U.S. 124 (2007)..........cccescserseeeses 24

Holder v. Humanitarian Law Project, 130 S. Ct.

EIT cscinsnadideitnnipepsinneuinissnenenidtaninnnitesdiaininmmbetnintsnamunenies 24

Humane Soc’y of the United States v. Hodel, 840

I BE rtincssincnnticnmennnicnionninienbintnennecninaiinn 7

INS v. Chadha, 462 U.S. 919 (1983)............:-sscsccsrssserserseeeees 21

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

ins procaieptieansintenapatatartuetiisiacateiasidaiinammenniaineaateniis 12

Kentucky Div., Horsemen’s Benevolent & Protective

Ass’n v. Turfway Park Racing Ass’n, 20 F.3d 1406

ON hid caer incall ilinanaatarialialsitl 16

Lebron v. National R.R. Passenger Corp., 513 U.S.

| en Ome 2, 20, 22

Mistretta v. United States, 488 U.S. 361 (1989).................. 12

National Cable Television Ass'n v. United States,

I ia teriereritiniartennicnaiiaieatlinaitiataaidiatiaenetais 17

National Endowment for the Arts v. Finley, 524 US.

| TE RTT Seen TT eT ENE Nir eN 24

National R.R. Passenger Corp. v. Atchison, Topeka

& Santa Fe Ry., 470 U.S. 451 (1985)...........ccccesceceseeseeneeee 2

R.H. Johnson & Co. v. SEC, 198 F.2d 690 (2d Cir.),

cert. denied, 344 U.S. 855 (1952).........c.cccssssscesssssceesessssssees 16

Rostker v. Goldberg, 453 U.S. 57 (1981) .........:..ccccccscessseseeees 24

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).........0000 24

Cases—Continued: Page

Sequoia Orange Co. v. Yeutter, 973 F.2d 752 (9th Cir.

1992), as amended, 985 F.2d 1419 (9th Cir. 1998)............ 16

Sorrell v. SEC, 679 F.2d 1323 (9th Cir. 1982) .................c0000 16

St. Louis, Iron Mountain & S. Ry. v. Taylor, 210

laa aibidiaciniaiiial 15

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.

ee TI icciciicorateenciisieiisieatiineelaatc aati ieianiniiie 9, 13, 15

United States v. Alvarez, 132 S. Ct. 2537 (2012)................. 24

United States v. Comstock, 130 S. Ct. 1949 (2010).............. 24

United States v. Morrison, 529 U.S. 598 (2000).................. 24

United States v. Rock Royal Co-op., Inc., 307 US.

ER ATEN ran en oR aoe 13, 14

United States v. Stevens, 559 U.S. 460 (2010) ..............-.000 24

United States v. Williams, 553 U.S. 285 (2008) .................. 24

Whitman v. American Trucking Ass’ns, 531 U.S. 457

SESE Re RENE cee eRe A Sea ene eee 18

Constitution and statutes:

U.S. Const.:

SE iar seicsstitnhaiiaibciteesiiniiiiehnninhinha itachi 2

Art. II, § 2, Cl. 2 (Appointments Clause)................0:00++ 21

Amend. V (Due Process Clause) ............c-sscssssesesssseseeeoees 7

Act of Mar. 2, 1893, ch. 196, §§ 5-6, 27 Stat. 531-532 .......... 16

Amtrak Improvement Act of 1973, Pub. L. No.

Amtrak Improvement Act of 1978, Pub. L. No.

Es Bie es Ci ccccerrcecennccntcenctpnennnenscnnmnnesenenmnseenensenenes 4

Amtrak Improvement Act of 1981, Pub. L. No.

97-35, §§ 1170-1189, 95 Stat. 687-699 on... eccssceseseneeenes 4

Amtrak Reform and Accountability Act of 1997,

Pub. L. No. 105-134, 111 Stat. 2570............cccccssccesccossssersesere 4

Statutes—Continued: Page

Amtrak Reorganization Act of 1979, Pub. L. No.

ERE NET TTS ee EE ae 4

Consolidated and Further Continuing Appropria-

tions Act, 2012, Pub. L. No. 112-55, Div. C, 125

Stat. 641:

a 4

, RT eee 23

Passenger Rail Investment and Improvement Act of

2008, Pub. L. No. 110-432, Div. B, 122 Stat. 4907 .............. 4

EE Ee: 23

a 23

§ 207, 122 Stat. 4916 (49 U.S.C. 24101 note

Is Sin cticcinsincsitieisintenesnatiiaiaeitianinaduneaenees passim

§ 207(a), 122 Stat. 4916 (49 U.S.C. 24101 note

(Supp. V 2011))........... siseneemennemniemeenenend 4,6

§ 207(c), 122 Stat. 4917 (49 U.S.C. 24101 note

SA: Tir UIT asiciitcsniniderisicatepcinnieaelininiianiiniamenientasenian 5

§ 207(d), 122 Stat. 4917 (49 U.S.C. 24101 note

TRE EE Pe eT 5, 9,17

ee 23

§ 222, 122 Stat. 4932 (49 U.S.C. 24101 note

SD, 7 TIIITITTtiininsincihnsennctpiinnasnpentndabadaimunimassiattitiiaiaiae 5

Be I TT ssssncternniarstientecenienntiatinnnienesimtnindl 23

ET 23

Rail Passenger Service Act of 1970, Pub. L. No. 91-

518, 84 Stat. 1327:

eG cetrnsnsccnenenscsennmnssnsentununscinemnantacseimeanenii 2

a Bi irrrcenniesnsennntsencnnnensccnnenienenssemnnsnesinennaneeel 2

Oe 2

Be ad CI crrentnsccnenensensimeaneneonsenensounensenseemsaneoneicnnaeniensi 21

VII

Statutes—Continued: Page

tee 18

49 U.S.C. 24101(c) (2006 & Supp. V 2011).............cecceesesesees 3

| Eee nen 6

49 U.S.C. 24101(c)(12) (Supp. V 2011) ............cccssccereescesseees 22

49 U.S.C. 24101(d) (Supp. V 2011).........cccccssessescsessesserseesees 22

49 U.S.C. 24101 note (Supp. V 2011).........0:...cccceesee 4, 5,9, 17

eee 3, 10

le icrccrntnasmmentinmmnumninnenl 3, 10, 22

es Ee crctrnnnestrnesticmninenmnittl 23

49 U.S.C. 24302(a)(1) (Supp. V 2011) ...........-..scccecenerseneees 3, 23

49 U.S.C. 24302(a)(1)(B) (Supp. V 2011) 20.0.2... eeseseeseeee 23

i cctentennninrnntasinneicnnmmmainnnti 3, 23

ee siictittrccsenttrenrrsnemanemenennemnanai 23

49 U.S.C. 24308(a) (2006 & Supp. V 2011)...............cccsecseeneees 3

49 U.S.C. 24308(c) (Supp. V 2011) ............cccscsseseeseenseeres 3, 6, 19

49 U.S.C. 24308(f)(1) (Supp. V 2011) ...............c00e0 5, 6, 18, 19

49 U.S.C. 24808(f)(2) (Supp. V 2011) ...............cssscsereeesees 6, 19

49 U.S.C. 24308(f)(4) (Supp. V 2011) ..............ccccsssecceseecsrsseeees 6

PE Ee 23

5 lk een 23

49 U.S.C. 24710(a)-(b) (Supp. V 2011).............cccsesseceversssesseees 5

I ee Te 3, 22

a Fe icercecincnsticntncnecnmernmemnnmnnnnmanasnta 22

Miscellaneous:

Fed. Railroad Admin., Dep’t of Transp., Metrics

and Standards for Intercity Passenger Rail

Service (May 12, 2010), www.fra.dot.gov/

) ph | | } EE TTT 6

74 Fed. Reg. 10,983 (Mar. 13, 2009) .............sccsesscsscsseeenseneneeee 6

Vill

Miscellaneous—Continued: Page

Holdover and Removal of Members of Amtrak’s

Reform Board, 27 Op. O.L.C. 163 (2008)...........c.cccccceeesees 23

$n the Supreme Court of the Guited States

No.

DEPARTMENT OF TRANSPORTATION, ET AL.,

PETITIONERS

ASSOCIATION OF AMERICAN RAILROADS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United

States Department of Transportation and its Secre-

tary, as well as the Federal Railroad Administration

and its Administrator, respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the District of Columbia

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-

23a) is reported at 721 F.3d 666. The opinion of the

district court (App., infra, 24a-50a), is reported at 865

F.. Supp. 2d 22.

JURISDICTION

The judgment of the court of appeals was entered

on July 2, 2013. A petition for rehearing was denied on

October 11, 2013 (App., infra, 5l1a-52a). On December

(1)

31, 2013, the Chief Justice extended the time within

which to file a petition for a writ of certiorari to and

including February 7, 2014. On January 28, 2014, the

Chief Justice further extended the time to March 10,

2014. The jurisdiction of this Court is invoked under

28 U.S.C. 1264(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 1 of the Constitution provides in

relevant part: “All legislative powers herein granted

shall be vested in a Congress of the United States.”

Pertinent statutory provisions are reprinted in an

appendix to this petition. App., infra, 53a-71a.

STATEMENT

1. a. Before 1970, railroads offering intercity pas-

senger service in the United States were, as common

carriers, generally obligated to continue to do so until

relieved of their passenger-service obligations by the

Interstate Commerce Commission or state regulatory

authorities. National R.R. Passenger Corp. v. Atchi-

son, Topeka & Santa Fe Ry., 470 U.S. 451, 454 (1985).

Although many railroads sought to discontinue those

operations, Congress determined that “the public con-

venience and necessity require[d] the continuance and

improvement” of passenger-rail service. Rail Passen-

ger Service Act of 1970, Pub. L. No. 91-518, § 101, 84

Stat. 1328. Accordingly, in 1970, Congress established

the National Railroad Passenger Corporation (Am-

trak) to serve as the successor to those railroads aban-

doning passenger-rail service (id. §§ 301, 401(a), 84

Stat. 1330, 13834-1335), thereby “avert{ing] the threat-

ened extinction of passenger trains in the United

States.” Lebron v. National R.R. Passenger Corp.,

513 U.S. 374, 383 (1995).

Congress has declared that Amtrak is “not a de-

partment, agency, or instrumentality of the United

States Government,” and it has directed that Amtrak

be “operated * * * asa for-profit corporation.” 49

U.S.C. 24301(a)(2) and (3).’ But it has also required

Amtrak to pursue various other public objectives. See,

e.g., 49 U.S.C. 24101(c), 24902(b). And Congress has

subjected Amtrak to government oversight and control

through a variety of mechanisms, including the ap-

pointment of eight of Amtrak’s nine directors by the

President with the advice and consent of the Senate

(with the ninth director, the President of Amtrak,

being appwinted by the other eight). 49 U.S.C.

24302(a)(1), 24303(a).

As a condition of relieving railroads of passenger-

rail-service obligations, Congress required railroads to

allow Amtrak to use their tracks and facilities, at rates

either agreed to by Amtrak and the host railroads or

prescribed by the Surface Transportation Board

(STB). 49 U.S.C. 24308(a). In addition, to ensure the

“improvement” of passenger-rail service for the public

good, in 1973 Congress granted Amtrak a general

preference over freight transportation in using rail

facilities, specifying that “[elxcept in an emergency,

intercity and commuter rail passenger transportation

provided by or for Amtrak has preference over freight

transportation in using a rail line, junction, or crossing

unless the [STB] orders otherwise under this subsec-

tion.” 49 U.S.C. 24308(c); see Amtrak Improvement

Act of 1973, Pub. L. No. 93-146, § 10(2), 87 Stat. 552

(initial version). Since then, Congress has remained

' All citations to Title 49 of the United States Code in this peti-

tion reflect the 2006 volume and any amendments shown in the

2011 supplement.

closely involved with Amtrak’s operations, enacting

several statutes aimed at improving Amtrak’s service,”

and providing annual appropriations to ensure Am-

trak’s continued operations, see, e.g., Consolidated and

Further Continuing Appropriations Act, 2012, Pub. L.

No. 112-55, Div. C, Tit. II, 125 Stat. 659-660 (appropri-

ating more than $1.4 billion for Amtrak).

b. This case concerns Congress’s most recent effort

to enhance passenger-rail performance and service:

the Passenger Rail Investment and Improvement Act

of 2008 (PRIIA), Pub. L. No. 110-432, Div. B, 122 Stat.

4907. Section 207(a) of the PRIIA provided that, with-

in 180 days of its October 2008 enactment,

the Federal Railroad Administration and Amtrak

shall jointly, in consultation with the Surface Trans-

portation Board, rail carriers over whose rail lines

Amtrak trains operate, States, Amtrak employees,

nonprofit employee organizations representing Am-

trak employees, and groups representing Amtrak

passengers, as appropriate, develop new or improve

existing metrics and minimum standards for meas-

uring the performance and service quality of inter-

city passenger train operations, including cost re-

covery, on-time performance and minutes of delay,

ridership, on-board services, stations, facilities,

equipment, and other services.

49 U.S.C. 24101 note (emphases added). The statute

further provided that, if the metrics and standards

® See, e.g., Amtrak Improvement Act of 1978, Pub. L. No. 95-421,

92 Stat. 923; Amtrak Reorganization Act of 1979, Pub. L. No. 96-

73, 93 Stat. 537; Amtrak Improvement Act of 1981, Pub. L. No. 97-

35, §§ 1170-1189, 95 Stat. 687-699; Amtrak Reform and Accounta-

bility Act of 1997, Pub. L. No. 105-134, 111 Stat. 2570.

were not completed within 180 days, “any party in-

volved in the development of those standards [could]

petition the [STB] to appoint an arbitrator to assist the

parties in resolving their disputes through binding

arbitration.” 49 U.S.C. 24101 note (PRIIA § 207(d)).

Congress specified that, once the metrics and

standards were developed, Amtrak would use them for

various purposes, including annual evaluations of its

performance, the development of performance im-

provement plans for long-distance routes, and the

development and implementation of a plan to improve

on-board service. 49 U.S.C. 24710(a)-(b); 49 U.S.C.

24101 note (PRIIA § 222). Congress also instructed

that, “{[t]o the extent practicable, Amtrak and its host

rail carriers shall incorporate the metrics and stan-

dards * * * into their access and service agree-

ments.” 49 U.S.C. 24101 note (PRIIA § 207(c)).

The PRIIA also provided that certain investigations

by the STB may or shall be initiated in the event of

sustained failures by any Amtrak intercity passenger

train to meet the minimum standards developed pur-

suant to Section 207. 49 U.S.C. 24308(f)(1)* In such

investigations, the STB “shall obtain information from

all parties involved.” Joid. It may then “review the

accuracy of the train performance data and the extent

to which scheduling and congestion contribute to de-

® The statute specifies that, when the standards have not been

satisfied for two consecutive calendar quarters, the STB itself

“may initiate an investigation,” or, alternatively, that the STB

“shall initiate such an investigation” “upon the filing of a complaint

by Amtrak, an intercity passenger rail operator, a host freight

railroad over which Amtrak operates, or an entity for which

Amtrak operates intercity passenger rail service.” 49 U.S.C.

24308(f)(1).

lays.” Ibid. Following an investigation, the STB may

choose to “award damages against” a host railroad if

the STB determines that Amtrak’s substandard per-

formance is attributable to the “rail carrier’s failure to

provide preference to Amtrak over freight transporta-

tion as required” by the pre-existing preference provi-

sion in 49 U.S.C. 24308(c). 49 U.S.C. 24308(f)(2). If

the STB deems it appropriate for damages to be remit-

ted to Amtrak, then Amtrak must use them “for capi-

tal or operating expenditures on the routes over which

delays” were the result of the host railroad’s failure to

grant the statutorily required preference to Amtrak.

49 U.S.C. 24308(f)(4).

2. In March 2009, the Federal Railroad Admin-

istration (FRA) and Amtrak, acting pursuant to Sec-

tion 207(a) of the PRIIA, jointly issued a draft version

of the metrics and standards, C.A. App. 23-56, and

sought comments from the various stakeholders identi-

fied in the statute, including freight railroads, 74 Fed.

Reg. 10,983 (Mar. 13, 2009). After receiving and con-

sidering comments, the FRA and Amtrak issued the

final version of the metrics and standards in May 2010.

C.A. App. 59-97. Some of the metrics involve Am-

trak’s financial performance, for which the associated

standard is that there be “[c]ontinuous year-over-year

improvement on a moving e‘ght-quarter average ba-

sis.” Jd. at 83. The on-time performance metrics ap-

ply to the ends of each route as well as to all station

stops. Jd. at 84-85; see 49 U.S.C. 24101(c)(4) (calling

for “station stops within 15 minutes of the time estab-

* The metrics and standards themselves appear at C.A. App. 83-

88, which are also available at FRA, Dep’t of Transp., Metric and

Standards for Intercity Passenger Rail Service 25-30 (May 12,

2010), www.fra.dot.gov/Elib/Document/1511.

lished in public timetables”). The standards associated

with those metrics require on-time performance at

least 80% to 95% of the time for each route, depending

on the route and year. C.A. App. 84-85. The standards

associated with train delays specify a maximum num-

ber of “minutes [of delay] per 10,000 Train-Miles,”

ranging from 265 to 900. Jd. at 85-86. Other metrics

and standards involve minimum customer-satisfaction

rates in surveys, id. at 87, and some metrics (e.g., the

percentage of passengers connecting to or from other

routes, or the percentage of passenger-trips to or from

underserved communities) have no associated stan-

dards, id. at 87-88.

3. In August 2011, respondent—an association rep-

resenting large freight railroads that own tracks on

which Amtrak operates—commenced this suit against

petitioners in the United States District Court for the

District of Columbia. C.A. App. 2; App., infra, 30a-

31a.° Respondent advanced two claims. First, it con-

tended that “Section 207 of PRIIA violates the non-

delegation doctrine and the separation of powers prin-

ciple by placing legislative and rulemaking authority in

the hands of a private entity [Amtrak] that partici-

pates in the very industry it is supposed to regulate.”

C.A. App. 20 (Compl. 151). Second, it contended that

Section 207 violates the Fifth Amendment’s Due Pro-

cess Clause by “[vlesting the coercive power of the

® Although Amtrak is also a member of respondent’s association

(App., infra, 30a-31a), petitioners did not challenge respondent’s

ability to represent the freight railroads. See Humane Soc’y of the

United States v. Hodel, 840 F.2d 45, 59 n.25 (D.C. Cir. 1988) (ob-

serving that an organization’s “internal conflict” is not “a basis for

defeating associational standing”).

government in interested private parties.” /d. at 21

(Compl. 11 53-54).

In addition to a declaration of Section 207’s un-

constitutionality, respondent sought vacatur of the

Amtrak-performance metrics and standards, the issu-

ance of an injunction against any action by the De-

partment of Transportation or the FRA pursuant to

the metrics and standards or Section 207 (and that any

such actions previously taken be declared null and

void), and an award of “reasonable costs, including

attorney’s fees.” C.A. App. 21.

The district court granted summary judgment in

favor of petitioners. App., infra, 24a-50a. The court

noted that both of respondent’s claims for relief de-

pend on the premise that Amtrak is a private rather

than governmental entity. Jd. at 34a. With respect to

respondent’s due-process claim, the court determined

that, under this Court’s decision in Lebron, “Amtrak is

the government in the context of claims that invoke

the Constitution’s guarantees of individual rights.” /d.

at 42a. Accordingly, it held that Section 207 does not

impermissibly vest “regulatory authority” in an “inter-

ested private part[y].” Jd. at 35a.

With respect to respondent’s nondelegation claim,

the district court held that “[elven if Amtrak is a pri-

vate entity, as [respondent] contends, the government

retains ultimate control over the promulgation of the

[mJetrics and [s]tandards,” and Section 207 therefore

“passes constitutional muster.” App., infra, 43a-44a.

The court emphasized that “Amtrak could not have

promulgated [the metrics and standards] without the

FRA’s approval” and that “the STB also retains con-

trol over their enforcement.” Jd. at 46a. Moreover.

the court concluded that, “even if the involvement of

these agencies is not enough to ensure the constitu-

tionality of [Section] 207’s delegation, the government

retains structural control over Amtrak itself.” Ibid.

The court concluded that “[t]Jaken together, the in-

volvement of the FRA in promulgating the regulations,

the role of the STB in their enforcement, and the gov-

ernment’s structural control over Amtrak itself more

than suffice” to render the statute constitutional. Jd.

at 49a.

4. The court of appeals reversed, App., infra, la-

23a, holding that Section 207 “constitutes an unlawful

delegation of regulatory power to a private entity,” id.

at 3a.

The court of appeals acknowledged that Section 207

bears a “passing resemblance” to statutory frame-

works that this Court sustained against delegation

challenges in Currin v. Wallace, 306 U.S. 1 (1939), and

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381

(1940). App., infra, 9a. It also acknowledged that “no

court has invalidated a scheme like [Section] 207’s.”

Id. at 12a. But it concluded that “[nJo case prefigures

the unprecedented regulatory powers delegated to

Amtrak.” Jd. at 10a.

Despite the FRA’s role in devising and approving

the Amtrak-performance metrics and standards, the

court of appeals noted that the FRA was “impotent” to

“choose its [own] version without Amtrak’s permis-

sion.” App., infra, 10a. The court found further cause

for concern in the provision requiring that any impasse

between Amtrak and the FRA be resolved by having

the STB “appoint an arbitrator to assist the parties in

resolving their disputes through binding arbitration.”

Id. at 14a (quoting 49 U.S.C. 24101 note (PRIIA

§ 207(d)). The court rejected the government’s sug-

gestion that the statute’s reference to “an arbitrator”

could be construed, if necessary to avoid serious con-

stitutional concerns, as authorizing the STB to appoint

only a governmental official as the arbitrator. Jd. at

15a n.7.

Although the court of appeals recognized that “the

metrics and standards themselves impose no liability,”

it nevertheless concluded that Amtrak’s ability to

participate in their approval reflects the kind of power

that cannot be delegated to a private entity because

they “lend definite regulatory force to an otherwise

broad statutory mandate.” App., infra, lla, 12a. The

court therefore concluded that, “[u]nless it can be

established that Amtrak is an organ of the govern-

ment, * * * [Section] 207 is an unconstitutional

delegation of regulatory power to a private party.” Jd.

at 16a.

The court of appeals recognized that “[mJany of the

details of Amtrak’s makeup support the government’s

position that it is not a private entity of the sort de-

scribed in” Carter v. Carter Coal Co., 298 U.S. 238

(1936), the last case in which this Court invalidated an

Act of Congress under the nondelegation doctrine.

App., infra, 16a. But the court of appeals emphasized

Congress’s declarations that “Amtrak ‘shall be operat-

ed and managed as a for-profit corporation’ and ‘is not

a department, agency, or instrumentality of the United

States Government.’” /d. at 17a (quoting 49 U.S.C.

24301(a)(2) and (3)). As a result, the court concluded

that Section 207 does nui adequately serve what it saw

as the “functional purposes” for distinguishing be-

tween public and private entities “when it comes to

delegating regulatory power.” Jd. at 18a. The court

held that allowing Amtrak to play a role in drafting the

metrics and standards for evaluating Amtrak’s own

performance fails to serve two such purposes. First, it

does not promote “democratic accountability,” because

Congress has denominated Amtrak a “for-profit corpo-

ration” rather than a “department, agency, or instru-

mentality of the United States Government.” Ibid.

(citations omitted). Second, it does not promote “the

public good,” because, the court believed, “(nJothing

about the government’s involvement in Amtrak’s oper-

ations restrains the corporation from devising metrics

and standards that inure to its own financial benefit

rather than the common good.” /d. at 19a, 20a.

Accordingly, the court of appeals held that, “as a

private entity, Amtrak cannot be granted the regulato-

ry power prescribed in [Section] 207.” App., infra,

23a. Having invalidated the statute on the basis of

respondent’s nondelegation claim, the court found it

unnecessary to reach the due-process claim. /bid.

REASONS FOR GRANTING THE PETITION

The court of appeals has held unconstitutional a key

component of Congress’s most recent effort to improve

passenger-rail service in the United States by provid-

ing for the establishment of metrics and standards for

evaluating Amtrak’s performance. Under respond-

ent’s view, the Amtrak-performance metrics and stan-

dards that were jointly developed by the Federal Rail-

road Administration and Amtrak in 2009-2010 must

therefore be vacated and all actions taken pursuant to

those standards by the Department of Transportation

and the FRA must be declared null and void. See p. 8,

supra. The court of appeals conceded that there is no

direct precedent for its holding. App., infra, 12a. Its

decision is not supported by this Court’s decisions,

which have not invalidated a federal statute in nearly

80 years on the ground that it impermissibly delegated

authority to a private party. Indeed, this Court has

repeatedly sustained the constitutionality of Acts of

Congress under which certain provisions could not

take effect without the approval of private entities.

And the Court has held that Amtrak itself is to be

considered a governmental actor, rather than a private

entity, for at least certain constitutional purposes.

Review of the decision below is therefore warranted.

A. The Government Retained Sufficient Control Over

The Development And Application Of The Amtrak-

Performance Metrics And Standards To Avoid Non-

delegation Concerns

Nondelegation challenges often involve questions

about whether Congress has supplied an “intelligible

principle” for the responsible decision-maker to apply.

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

394, 409 (1928); see also Mistretta v. United States,

488 U.S. 361, 372 (1989). Respondent does not contend

that Section 207 of the PRIIA lacks intelligible princi-

ples to guide the FRA and Amtrak, and it does not

challenge the provision on that basis.

Instead, respondent contends that Section 207 is

unconstitutional because it permits Amtrak (acting

jointly with the FRA) to develop the metrics and

standards that are to be used to judge Amtrak’s per-

formance. In respondent’s view, “the nondelegation

doctrine bars delegations to nongovernmental parties,

period.” Resp. C.A. Resp. to Pet. for Reh’g 12. But,

assuming arguendo that Amtrak should be deemed a

private entity for purposes of nondelegation analysis,

the role Congress assigned to Amtrak does not present

nondelegation concerns because indisputably govern-

mental entities had sufficient control over the devel-

opment and adoption of the standards in the first in-

stance. And they also have sufficient control over any

enforcement actions against the freight railroads rep-

resented by respondent, which would be based upon an

independent statutory mandate.

I. Congress may condition the effectiveness of regula-

tory provisions on the involvement or approval of

private entities

a. It has been nearly 80 years since this Court in-

validated an Act of Congress on the ground that it

delegated too much authority to a private party. In

Carter v. Carter Coal Co., 298 U.S. 238 (1936), the

Court struck down a statute that required all coal

producers to accept the maximum labor hours and

minimum wages negotiated by the producers of more

than two-thirds of the annual coal tonnage and repre-

sentatives of more than half of the mine workers. /d.

at 283-284, 310-312. In that case, the government had

no involvement in the creation or approval of those

binding provisions, which were instead devised and

approved entirely by private entities.

After Carter Coal, however, the Court sustained the

validity of statutes that permitted private parties to

play a significant role in the process of formulating or

imposing new regulatory provisions. In doing so, it

recognized that “[t]he Constitution has never been

regarded as denying to the Congress the necessary

resources of flexibility and practicality” in fashioning

statutory schemes involving private parties. Currin v.

Wallace, 306 U.S. 1, 15 (1939); see also, e.g., Sunshine

Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940);

United States v. Rock Royal Co-op., Inc., 307 U.S. 533

(1939).

b. The court of appeals held that Section 207 of the

PRIIA delegated “unprecedented regulatory powers”

to Amtrak because the requirement that the standards

and metrics be “jointly” promulgated by the FRA and

Amtrak meant that, if the FRA had “prefer[red] an

alternative to Amtrak’s proposed metrics and stand-

ards,” it would have been “impotent to choose its [own]

version without Amtrak’s permission.” App., infra,

10a. In fact, however, this Court has repeatedly ap-

proved statutory schemes under which particular

standards were subject to private parties’ veto powers.

In Currin, supra, the inspection and certification

standards could not be applied to tobacco markets

designated by the Secretary of Agriculture “unless two

thirds of the [tobacco] growers [in that market], voting

at a prescribed referendum,” approved their applica-

tion. 306 U.S. at 6. The Court acknowledged that such

a scheme “placed a restriction upon [the government’s]

own regulation,” but rejected the contention that it

constituted an impermissible “delegation of legislative

authority.” Jd. at 15-16. The Court upheld a similar

statutory scheme in Rock Royal Co-operative, supra,

which prevented an order governing minimum milk

prices paid by handlers from becoming effective unless

it was approved by two-thirds of the milk producers in

the relevant marketing area. 307 U.S. at 547-548. The

Court again held that, so long as Congress had the

power to put the order into effect “without the approv-

al of anyone,” then the “requirement of [the private

producers’] approval would not be an invalid delega-

tion.” Id. at 577-578.

In this case, the court of appeals believed Currin

was distinguishabie because it involved “the collective

participation of two thirds of industry members” ra-

ther than “a statute that favored a single firm over all

its market rivals.” App., infra, 10a n.4. But there is

no question that the establishment of ~articular mini-

mum prices in Currin would adv:ntage or disadvan-

tage some participants vis-a-vis other participants in

the tobacco market. Even more to the point, if the

constitutional infirmity consists in allowing a private

party to exercise a veto power over a governmental

agency's preferred course, it would make no sense to

forbid Congress from requiring an agency to secure

the consent of one party (as under Section 207 of the

PRIIA), and yet permit Congress to require an agency

to secure the consent of many such parties (as in Cur-

rin and Rock Royal Co-operative). And here, it was

entirely reasonable for Congress to provide a distinct

role for Amtrak, because the metrics and standards

were intended to assess Amtrak’s own performance.

c. This Court has also recognized that private par-

ties are not limited to approving or disapproving

standards proposed by governmental actors. They

may also play a role in the development of proposed

regulatory standards. In Sunshine Anthracite Coal,

supra, for instance, the Court upheld a statutory

framework authorizing groups of coal producers to

propose prices for coal that were then subject to ap-

proval, disapproval, or modification by the National

Bituminous Coal Commission (a governmental entity).

310 U.S. at 387-388 & n.2, 399. And the Court sum-

marily rejected a challenge to a statute authorizing a

private railway association to establish standard

heights for drawbars on railroad cars used in inter-

state commerce, even though railroads were then

subject to monetary penalties for failure to comply

with that requirement. See St. Louis, Iron Mountain

& S. Ry. v. Taylor, 210 U.S. 281, 286-287 (1908); Act of

Mar. 2, 1893, ch. 196, §§ 5-6, 27 Stat. 531-532.

Section 207 of the PRIIA broke no new ground

on this score. Unlike in Carter Coal, the Amtrak-

performance metrics and standards could not take

effect without the active oversight, participation, and

assent of the FRA. Amtrak had no more involvement

in the standards’ development than did the coal pro-

ducers in Sunshine Anthracite Coal. And the re-

quirement that Amtrak agree to the standards was

consistent with Currin and Rock Royal Co-operative.

The court of appeals therefore erred in concluding that

a private party cannot be involved in the development

of a standard and that such a standard cannot be con-

ditioned upon a private party’s approval.®

® Other courts of appeals have rejected nondelegation challenges

to statutes that vested private parties with authority to disapprove

regulatory standards. See Kentucky Div., Horsemen’s Benevolent

& Protective Ass'n v. Turfway Park Racing Ass'n, 20 F.3d 1406,

1416 (6th Cir. 1994) (rejecting challenge to federal statute giving

racehorse owners veto power over racetrack’s plan to permit inter-

state off-track betting); Sequoia Orange Co. v. Yeutter, 973 F.2d

752, 759 (9th Cir. 1992) (rejecting challenge to Secretary of Agri-

culture’s determination to implement amendments to orange mar-

keting order only with approval of 75% of growers (or those grow-

ing two-thirds of total crop)), as amended, 985 F.2d 1419 (9th Cir.

1993). Other courts of appeals have also upheld statutes that

authorize private parties to take regulatory action subject to the

approval of a governmental agency. See Sorrell v. SEC, 679 F.2d

1323, 1325 (9th Cir. 1982) (rejecting nondelegation challenge to

statute allowing private self-regulatory organizations to conduct

and develop rules for disciplinary proceedings concerning their

members, subject to SEC review and approval); First Jersey Secs.,

Inc. v. Bergen, 605 F.2d 690, 697 (8d Cir. 1979) (same), cert. de-

nied, 444 U.S. 1074 (1980); R.H. Johnson & Co. v. SEC, 198 F.2d

690, 695 (2d Cir.) (same), cert. denied, 344 U.S. 855 (1952).

d. Even assuming that it would generally be im-

permissible for a governmental entity (the FRA) and a

purportedly private entity (Amtrak) to have “equal”

authority with respect to the development and adop-

tion of the metrics and standards (App., infra, 10a),

the court of appeals seriously misconstrued the effect

and significance of Section 207(d) of the PRIIA, which

provided that if there was an impasse in promulgating

the metrics and standards, any party involved in their

development could “petition the [STB] to appoint an

arbitrator to assist the parties in resolving their dis-

putes through binding arbitration.” 49 U.S.C. 24101

note. In other words, Amtrak was ultimately not an

equal partner with the FRA. Instead, the government

retained the upper hand by virtue of the authority

exercised by the government-appointed arbitrator.’ In

‘ The court of appeals found that the arbitration provision

(which was never actually invoked) compounded the delegation

problem because it did not expressly forbid “the appointment of a

private party as arbitrator.” App., infra, 14a-15a. But that con-

clusion runs contrary to normal principles of statutory construc-

tion, under which Congress is, in the absence of “an affirmative

showing,” presumed not to have authorized “delegations to non-

governmental entities.” Gentiva Healthcare Corp. v. Sebelius, 723

F.3d 292, 296 (D.C. Cir. 2013). In any event, if the court of appeals’

constitutional concerns were valid, then principles of constitutional

avoidance also counseled strongly in favor of reading the provision

as contemplating a governmental, rather than private-party, arbi-

trator. See generally Boos v. Barry, 485 U.S. 312, 330-331 (1988)

(“It is well settled that federal courts have the power to adopt

narrowing constructions of federal legislation. Indeed, the federal

courts have the duty to avoid constitutional difficulties by doing so

if such a construction is fairly possible.”) (citations omitted); see

also National Cable Television Ass’n v. United States, 415 U.S.

336, 342 (1974) (applying constitutional avoidance in the context of

a nondelegation challenge).

light of that authority and the F'RA’s required active

role in adopting the metrics and standards, there is no

basis for the court of appeals’ conclusion that Section

207 is at all “close to the blatantly unconstitutional

scheme in Carter Coal.” App., infra, 14a.

2. Any future sanctions against freight railroads would

be based on a governmental agency’s determination

that they failed to satisfy an independent statutory

obligation, not the Amtrak-performance metrics and

standards

The court of appeals also failed to give proper

weight to the limited role the Amtrak-performance

metrics and standards play with respect to the conduct

of entities other than Amtrak. Put simply, the metrics

and standards serve primarily as tools to measure

Amtrak’s own performance, not to alter freight rail-

roads’ legal rights or obligations. See Whitman v.

American Trucking Ass’ns, 531 U.S. 457, 475 (2001)

(“It is true enough that the degree of agency discre-

tion that is acceptable varies according to the scope of

the power congressionally conferred.”). |

The court of appeals nonetheless believed that the

metrics and standards effectively impose regulatory

requirements on freight railroads, App., infra, 11la-

12a, 16a, concluding that “the metrics and standards

lend definite regulatory force to an otherwise broad

statutory mandate,” id. at 12a. The court noted, for

example, that respondent’s members claimed they had

been “forced” to take certain “immediate actions” by

the metrics and standards.” /d. at lla n.6. That mis-

conceives the way in which any enforcement authority

would be brought to bear upon the freight railroads.

Amtrak’s failure to satisfy the metrics and stand-

ards may trigger an investigation by the STB. 49

U.S.C. 24308(f)(1). But that alone is unremarkable;

the law often requires the government to initiate an

investigation when spurred by the actions of private

parties. See, ¢.g., 16 U.S.C. 1533(b)(3) (allowing pri-

vate citizens to petition to have a species listed under

the Endangered Species Act, thereby triggering con-

sideration by the Department of the Interior or De-

partment of Commerce). Moreover, the ensuing inves-

tigation, and any resulting sanction, will not be about

applying the metrics and standards. Instead, the STB

will gather information from “all parties” and evaluate

“the extent to which scheduling and congestion con-

tribute to delays.” 49 U.S.C. 24308(f)(1). If, at the

conclusion of its investigation, the STB requires a host

railroad to pay damages, it may do so only if it has

determined that Amtrak’s substandard performance

was attributable to the “rail carrier’s failure to provide

preference to Amtrak over freight transportation as

required” by 49 U.S.C. 24308(c). 49 U.S.C. 24808(f)(2).

In other words, even when the metrics and standards

have not been satisfied, a freight railroad will face

liability only if a governmental entity determines that

the freight railroad failed to comply with the long-

standing statutory-preference requirement, which is

independent of the metrics and standards.

Under these circumstances, Amtrak’s role in devel-

oping the standards intended to measure (and enable

improvements in) its own performance is not at all

analogous to the “scenario” conjured by the court of

appeals, “in which Congress has given to General Mo-

tors the power to coauthor, alongside the Department

of Transportation, regulations that will govern all

automobile manufacturers.” App., infra, 1a.

The court of appeals erred in concluding that Sec-

tion 207 of the PRIIA fails to satisfy constitutional

nondelegation concerns, even if Amtrak is deemed to

be a private entity for these purposes.

B. The Court Of Appeals Erroneously Treated Amtrak

As A Private Entity For Purposes Of Nondelegation

Analysis

In any event, assuming arguendo that the nature of

the Amtrak-performance metrics and standards, even

when combined with the FRA’s involvement in their

promulgation and the STB’s exclusive enforcement

role, would preclude a private entity’s participation in

their development, the court of appeals still erred in

holding that Amtrak is merely “a private corporation”

for purposes of nondelegation analysis. App., infra,

16a. That holding is inconsistent with this Court’s

decision in Lebron v. National R.R. Passenger Corp.,

513 U.S. 374 (1995), and with the statutory provisions

applicable to Amtrak.

1. In Lebron, this Court held that Amtrak “is an

agency or instrumentality of the United States for the

purpose of individual rights guaranteed against the

Government by the Constitution.” 513 U.S. at 394. As

the Court explained, Congress’s characterization is

“assuredly dispositive of Amtrak’s status as a Gov-

ernment [or non-Government] entity for purposes of

matters that are within Congress’s control—for ex-

ample, whether it is subject to statutes.” Jd. at 392.

But the limits imposed by the nondelegation doctrine

are—like the First Amendment and other constitu-

tional restrictions—not statutory rules that Congress

may turn on and off.

Here, the court of appeals recognized that respond-

ent’s nondelegation challenge presents “a constitution-

al question, not a statutory one.” App., infra, 2la. It

nevertheless attempted to distinguish the individual-

rights holding of Lebron from the context of nondele-

gation analysis, which it described as presenting a

question about “the federal government’s structural

powers under the Constitution.” Jd. at 22a. In the

court of appeals’ view, Lebron requires that Amtrak be

subject to any “‘affirmative prohibitions’ on govern-

ment action,” but the principles in Lebron for deter-

mining what is properly considered governmental do

not include the nondelegation doctrine, which “defines

the limits of what Congress can do,” “rather than

proscribing what Congress cannot do.” Id. at 22a-23a.

That thin distinction is difficult to square with this

Court’s recognition that structural constitutional prin-

ciples protect the liberty of “individuals, too.” Bond v.

United States, 131 S. Ct. 2355, 2365 (2011); see also,

e.g., INS v. Chadha, 462 U.S. 919, 946-950, 959 (1983).

Moreover, the court of appeals’ reasoning is difficult

to reconcile with this Court’s consideration of the

Appointments Clause and separation-of-powers chal-

lenges to the limitations on the removal of members

of the Public Company Accounting Oversight Board

(PCAOB) in Free Enterprise Fund v. Public Company

Accounting Oversight Board, 130 S. Ct. 3138, 3151-

3164 (2010). While the PCAOB was—like Amtrak-—“a

Government-created, Government-appointed entity,”

id. at 3147, Congress specified that the PCAOB “shall

not be an agency or establishment of the United States

Government” and that none of the PCAOB’s members,

employees, or agents “shall be deemed to be an officer

or employee of or agent for the Federal Government,”

15 U.S.C. 7211(b). Nevertheless, this Court quoted

Lebron in support of the proposition, uncontested by

the parties, that “the [PCAOB] is ‘part of the Govern-

ment’ for constitutional purposes.” 130 S. Ct. at 3148

(quoting Lebron, 513 U.S. at 397).

2. Even apart from this Court’s prior cases, the

court of appeals’ view of Amtrak as a private entity

cannot be reconciled with Amtrak’s structure and

purposes. The court of appeals relied (App., infra,

17a, 18a) on Congress’s declaration that Amtrak “is

not a department, agency, or instrumentality of the

United States Government.” 49 U.S.C. 24301(a)(3). In

doing so, however, the court minimized a host of ties

between Amtrak and the federal government demon-

strating that Amtrak should not be considered a pri-

vate entity for purposes of nondelegation analysis.

Not least, “Amtrak was created by a special statute,

explicitly for the furtherance of federal governmental

goals.” Lebron, 513 U.S. at 397. One such goal (which

has not yet been realized) is to turn a profit and there-

by reduce Amtrak’s longstanding dependence on fed-

eral subsidies. 49 U.S.C. 24101(c)(12) and (d). But

Congress has also identified several competing public

objectives, which prevent Amtrak from focusing exclu-

sively on profit maximization. See, e.g., 49 U.S.C.

24902(b) (enumerating seven “considerations,” in “or-

der of priority”); 49 U.S.C. 24902(c) (requiring certain

improvements to “produce the maximum labor benefit

from hiring individuals presently unemployed”).

Congress has also provided several more direct

forms of governmental control. The federal govern-

ment not only owns the overwhelming majority of

Amtrak’s stock, App., infra, 16a-17a, but also “controls

the operation of the corporation through its appoin-

tees,” Lebron, 513 U.S. at 399. Indeed, that form of

control has been strengthened since Lebron was de-

cided. Now, eight of Amtrak’s nine directors (includ-

ing the Secretary of Transportation, who serves as an

ex officio board member) are appointed by the Presi-

dent with the advice and consent of the Senate, 49

U.S.C. 24802(a)(1), and they are understood to be

removable without cause by the President, see Hold-

over and Removal of Members of Amtrak’s Reform

Board, 27 Op. 0.L.C. 163, 166 (2003). The ninth direc-

tor (Amtrak’s own President) is selected by the other

eight directors. 49 U.S.C. 24302(a)(1)(B), 24308(a).

Congress has also established salary limits for Am-

trak’s officers (49 U.S.C. 24303(b)), required Amtrak

to submit reports about its operations to Congress and

the President (e.g., 49 U.S.C. 24315(a) and (b)), and

subjecved Amtrak to review by the Department of

Transportation’s Inspector General (PRIIA §$§ 203(b),

204(d), 221, 225, 227, 122 Stat. 4913, 4914, 4931, 4933,

4934) as well as by another Inspector General for

Amtrak, who receives appropriations directly from

Congress (Consolidated and Further Continuing Ap-

propriations Act, 2012, Pub. L. No. 112-55, Div. C, Tit.

III, 125 Stat. 704). Congress has made Amtrak sub-

ject to the Freedom of Information Act. See 49 U.S.C.

24301(e). And it has repeatedly “appropriate[d] for

Amtrak more than a billion dollars annually.” App.,

infra, 38a.

Thus, in addition to the extensive involvement

of the FRA in the promulgation of the Amtrak-

performance metrics and standards, the federal gov-

ernment’s direct connections with Amtrak itself belie

the court of appeals’ conclusion that Congress sought

to “absolv[e] the federal government of all responsibil-

ity” for the metrics and standards. App., infra, 21a.

Contrary to that court’s fears, giving the government-

created, government-controlled, and government-

subsidized Amtrak a role in the development of the

metrics and standards to assess its own performance

did not make it possible to evade public criticism by

claiming that any flaws in the resulting standards are

therefore “not the federal government’s fault.” Jd. at

18a.

The court of appeals thus erred in concluding that

Amtrak should be treated as a merely private entity

for purposes of nondelegation analysis.

C. The Court Of Appeals’ Invalidation Of An Important

Component Of An Act Of Congress Warrants This

Court’s Review

This Court should grant review because the court of

appeals has held unconstitutional an important provi-

sion of an Act of Congress. This Court has often re-

viewed lower-court decisions holding that a federal law

is unconstitutional, even in the absence of a circuit

split. See, e.g., United States v. Alvarez, 132 S. Ct.

2537, 2542 (2012) (noting that circuit conflict arose

“(alfter certiorari was granted”); United States v.

Comstock, 130 S. Ct. 1949, 1956 (2010) (same); Holder

v. Humanitarian Law Project, 130 S. Ct. 2705 (2010);

United States v. Stevens, 559 U.S. 460 (2010); United

States v. Williams, 553 U.S. 285 (2008); Gonzales v.

Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542

U.S. 656 (2004); United States v. Morrison, 529 U.S.

598 (2000); National Endowment for the Arts v. Fin-

ley, 524 U.S. 569 (1998); Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995). That practice is consistent with

the Court’s recognition that judging the constitutional-

ity of an Act of Congress is “the gravest and most

delicate duty” of the courts. Rostker v. Goldberg, 453

U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275

U.S. 142, 148 (1927) (opinion of Holmes, J.)). And

here, the court of appeals has held Section 207 uncon-

stitutional by relying upon nondelegation principles

that this Court has not invoked to invalidate an Act of

Congress in almost 80 years, and done so in a manner

that is inconsistent with this Court’s subsequent cases.

Now that the D.C. Circuit has invalidated the meth-

od that Congress prescribed for the development of

metrics and standards for Amtrak—and notwithstand-

ing the court of appeals’ acknowledgment that “no

court has invalidated a scheme like” the one at issue

here (App., infra, 12a)—there will be no further perco-

lation of the question in other courts of appeals. There

will instead be a hole in the framework that Congress

devised in 2008 for improving passenger-rail service in

the United States. This Court’s review is accordingly

warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

STUART F. DELERY

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

CURTIS E. GANNON

Assistant to the Solicitor

General

MARK B. STERN

MICHAEL S. RAAB

DANIEL TENNY

PATRICK G. NEMEROFF

Attorneys

MARCH 2014

TEhiK

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Before:

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12-5204

ASSOCIATION OF AMERICAN RAILROADS, APPELLANT

Vv.

UNITED STATES DEPARTMENT OF TRANSPORTATION,

ET AL., APPELLEES

Argued: Feb. 19, 2013

Decided: July 2, 2013

OPINION

BROWN, Circuit Judge, and WILLIAMS and

SENTELLE, Senior Circuit Judges.

BROWN, Circuit Judge:

Imagine a scenario in which Congress has given to

General Motors the power to coauthor, alongside the

Department of Transportation, regulations that will

govern all automobile manufacturers. And, if the two

should happen to disagree on what form those regula-

tions will take, then neither will have the ultimate say.

(la)

Instead, an unspecified arbitrator will make the call.

Constitutional? The Department of Transportation

seems to think so.’

Next consider a parallel statutory scheme—the one

at issue in this case. This time, instead of General

Motors, it is Amtrak (officially, the “National Railroad

Passenger Corporation”) wielding joint regulatory

power with a government agency. This new stipula-

tion further complicates the issue. Unlike General

Motors, Amtrak is a curious entity that occupies the

twilight between the public and private sectors. And

the regulations it codevelops govern not the automo-

tive industry, but the priority freight railroads must

give Amtrak’s trains over their own. Whether the

Constitution permits Congress to delegate such joint

regulatory authority to Amtrak is the question that

confronts us now.

Section 207 of the Passenger Rail Investment and

Improvement Act of 2008 empowers Amtrak and the

Federal Railroad Administration (FRA) to jointly de-

velop performance measures to enhance enforcement

of the statutory priority Amtrak’s passenger rail ser-

vice has over other trains. The Appellant in this case,

the Association of American Railroads (AAR), is a

trade association whose members include the largest

freight railroads (known in the industry as “Class I”

freight railroads), some smaller freight railroads, and

‘ Counsel for the Appellees embraced precisely this position at

oral argument, albeit with some preliminary hemming and hawing.

See Oral Arg. 30:20-33:00.

—as it happens—Amtrak. Compl. 4 10, at 4. Chal-

lenging the statutory scheme as unconstitutional, AAR

brought suit on behalf of its Class I members against

the four Appellees—the Department of Transporta-

tion, its Secretary, the FRA, and its Administrator

(collectively, the “government”). Jd. 4% 14-17, at 6-7.

We conclude § 207 constitutes an unlawful delegation

of regulatory power to a private entity.

To reinvigorate a national passenger rail system

that had, by mid-century, grown moribund and un-

profitable, Congress passed the Rail Passenger Ser-

vice Act of 1970, Pub. L. No. 91-518, 84 Stat. 1327.

See Natl R.R. Corp. v. Atchison, Topeka & Santa Fe

Ry. Co., 470 U.S. 451, 453-54, 105 S. Ct. 1441, 84 L. Ed.

2d 432 (1985). Most prominently, the legislation cre-

ated the passenger rail corporation now known as Am-

trak, which would “employ[] innovative operating and

marketing concepts so as to fully develop the potential

of modern rail service in meeting the Nation’s intercity

passenger transportation requirements.” Rail Pas-

senger Service Act, § 301, 84 Stat. at 1330. The act

also made railroad companies languishing under the

prior regime an offer they could not refuse: if these

companies consented to certain conditions, such as

permitting Amtrak to use their tracks and other facili-

ties, they could shed their cumbersome common carri-

er obligation to offer intercity passenger service. See

Nat'l R.R. Corp., 470 U.S. at 455-56, 105 S. Ct. 1441.

Pursuant to statute, Amtrak negotiates these arrange-

ments with individual railroads, the terms of which are

enshrined in Operating Agreements.” See 49 U.S.C.

§ 24308(a). Today, freight railroads own roughly

97% of the track over which Amtrak runs its passenger

service.

Naturally, sharing tracks can cause coordination

problems, which is why Congress has prescribed that,

absent an emergency, Amtrak’s passenger rail “has

preference over freight transportation in using a rail

line, junction, or crossing.” Id. § 24308(c). More re-

cently, this same concern prompted enactment of the

Passenger Rail Investment and Improvement Act of

2008 (“PRIIA”), Pub. L. No. 110-432, Div. B, 122 Stat.

4848, 4907. At issue in this case is the PRIIA’s § 207,

which directs the FRA and Amtrak to “jointly

develop new or improve existing metrics and minimum

standards for measuring the performance and service

quality of intercity passenger train operations, includ-

ing cost recovery, on-time performance and minutes of

delay, ridership, on-board services, stations, facilities,

equipment, and other services.” PRIIA § 207(a), 49

U.S.C. § 24101 (note). If Amtrak and the FRA disa-

gree about the composition of these “metrics and

standards,” either “may petition the Surface Trans-

portation Board to appoint an arbitrator to assist the

parties in resolving their disputes through binding

arbitration.” Jd. § 207(d), 49 U.S.C. § 24101 (note).

“To the extent practicable,” Amtrak and its host rail

* If the parties cannot reach agreement, the Surface Transpor-

tation Board (STB) will “order that the facilities be mad available

and the services provided to Amtrak” and “prescribe reasonable

terms and compensation.” 49 U.S.C. § 24308a).

carriers must incorporate the metrics and standards

into their Operating Agreements. Jd. § 207(c), 49

U.S.C. § 24101 (note).

Though § 207 provides the means for devising the

metrics and standards, § 213 is the enforcement mech-

anism. If the “on-time performance” or “service

quality” of any intercity passenger train proves inad-

equate under the metrics and standards for two con-

secutive quarters, the STB may launch an investiga-

tion “to determine whether and to what extent delays

or failure to achieve minimum standards are due to

causes that could reasonably be addressed by a rail

carrier over whose tracks the intercity passenger train

operates or reasonably addressed by Amtrak or other

intercity passenger rail operators.” PRIIA § 213(a),

49 U.S.C. § 24308(f)(1). Similarly, if “Amtrak, an

intercity passenger rail operator, a host freight rail-

road over which Amtrak operates, or an entity for

which Amtrak operates intercity passenger rail ser-

vice” files a complaint, the STB “shall” initiate such an

investigation. Jd. (emphasis added). Should the

STB determine the failure to satisfy the metrics and

standards is “attributable to a rail carrier’s failure to

provide preference to Amtrak over freight transporta-

tion as required,” it may award damages or other relief

against the offending host rail carrier. Id.

§ 24308(f)(2).

Following § 207’s mandate, the FRA and Amtrak

jointly drafted proposed metrics and standards, which

they submitted to public comment on March 13, 2009.

See Metrics and Standards for Intercity Passenger

Rail Service Under Section 207 of Public Law 110-482,

74 Fed. Reg. 10,983 (Mar. 13, 2009). The proposal at-

tracted criticism, with much vitriol directed at three

metrics formulated to measure on-time performance:

“effective speed” (the ratio of route’s distance to the

average time required to travel it), “endpoint on-time

performance” (the portion of a route’s trains that ar-

rive on schedule), and “all stations on-time perform-

ance” (the degree to which trains arrive on time at

each station along the route). AAR, among others,

derided these metrics as “unrealistic” and worried that

certain aspects would create “an excessive admini-

strative and financial burden.” The FRA responded

to the comments, and a final version of the metrics and

standards took effect in May 2010. See Metrics and

Standards for Intercity Passenger Rail Service Under

Section 207 of the Passenger Rail Investment and Im-

provement Act of 2008, 75 Fed. Reg. 26,839 (May 11,

2010).

AAR filed suit on behalf of its Class I freight rail-

road members, asking the district court to declare

§ 207 of the PRIIA unconstitutional and to vacate the

promulgated metrics and standards. The complaint

asserted two challenges: that § 207 unconstitutional-

ly delegates to Amtrak the authority to regulate other

private entities; and that empowering Amtrak to reg-

ulate its competitors violates the Fifth Amendment’s

Due Process Clause. Compl. 1 47-54, at 16-17. The

district court rejected these arguments, granting sum-

mary judgment to the government and denying it to

AAR. See AAR v. Dep’t of Transp., 865 F Supp. 2d

22, 35 (D.D.C. 2012). AAR renews these constitu-

tional claims on appeal.

AAR’s argument takes the following form: Dele-

gating regulatory authority to a private entity is un-

constitutional. Amtrak is a private entity. Ergo,

§ 207 is unconstitutional. This proposed syllogism is

susceptible, however, to attacks on both its validity

and soundness. In other words, does the conclusion

actually follow from the premises? And, if it does, are

both premises true? Our discussion follows the same

path.

We open our discussion with a principle upon which

both sides agree: Federal lawmakers cannot delegate

regulatory authority to a private entity. To do so

would be “legislative delegation in its most obnoxious

form.” Carter v. Carter Coal Co., 298 U.S. 238, 311,

56 S. Ct. 855, 80 L. Ed. 1160 (1936). This constitu-

tional prohibition is the lesser-known cousin of the

doctrine that Congress cannot delegate its legislative

function to an agency of the Executive Branch. See

U.S. Const. art. I, § 1 (“All legislative Powers herein

granted shall be vested in a Congress of the United

States. ”); see A.L.A. Schechter Poultry Corp.

v. United States, 295 U.S. 495, 529, 55 S. Ct. 837, 79

L. Ed. 1570 (1935). This latter proposition finds

scarce practical application, however, because “no

statute can be entirely precise,” meaning “some judg-

ments, even some judgments involving policy consid-

erations, must be left +o the officers executing the law

and to the judges applying it.” Mistretta v. United

States, 488 U.S. 361, 415, 109 S. Ct. 647, 102 L. Ed. 2d

714 (1989) (Scalia, J., dissenting). Ali that is required

then to legitimate a delegation to a government agency

is for Congress to prescribe an intelligible principle

governing the statute’s enforcement. See J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394,

409, 48 S. Ct. 348, 72 L. Ed. 624 (1928).

Not so, however, in the case of private entities to

whom the Constitution commits no executive power.

Although objections to delegations are “typically pre-

sented in the context of a transfer of legislative au-

thority from the Congress to agencies,” we have reaf-

firmed that “the difficulties sparked by such ailoca-

tions are even more prevalent in the context of agency

delegations to private individuals.” Nat’l Ass’n of

Regulatory Util. Comm’rs v. FCC (“NARUC”), 737

F.2d 1095, 1143 (D.C. Cir. 1984) (per curiam).* Even

an intelligible principle cannot rescue a statute em-

powering private parties to wield regulatory authority.

Such entities may, however, help a government agency

5 At least one commentator has suggested that the “doctrine for-

bidding delegation of public power to private groups is, in fact,

rooted in a prohibition against self-interested regulation that

sounds more in the Due Process Clause than in the separation

of powers.” A. Michael Froomkin,.Wrong Turn in Cyberspace:

Using ICANN To Route Around the APA and the Constitution, 50

DUKE L.J. 17, 153 (2000). Carter Coal offers some textual support

for this position, describing the impermissible delegation there as

“clearly a denial of rights safeguarded by the due process clause of

the Fifth Amendment.” 298 U.S. at 311, 56S. Ct. 855. While the

distinction evokes scholarly interest, neither party before us makes

this point, and our own precedent describes the problem as one of

unconstitutional delegation. See NARUC, 737 F.2d at 1143 n.41.

And, in any event, neither court nor scholar has suggested a change

in the label would effect a change in the inquiry.

make its regulatory decisions, for “(t]he Constitution

has never been regarded as denying to the Congress

the necessary resources of flexibility and practicality”

that such schemes facilitate. Pan. Ref. Co. v. Ryan,

293 U.S. 388, 421, 55 S. Ct. 241, 79 L. Ed. 446 (1935).

Yet precisely how much involvement may a private

entity have in the administrative process before its

advisory role trespasses into an unconstitutional dele-

gation? Discerning that line is the task at hand.

Preliminarily, we note the Supreme Court has nev-

er approved a regulatory scheme that so drastically

empowers a private entity in the way § 207 empowers

Amtrak. True, § 207 has a passing resemblance to

the humbler statutory frameworks in Currin v. Wal-

lace, 306 U.S. 1, 59 S. Ct. 379, 83 L. Ed. 441 (1939), and

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,

60 S. Ct. 907, 84 L. Ed. 1263 (1940). In Currin Con-

gress circumscribed its delegations of administrative

authority—in that case, by requiring two thirds of reg-

ulated industry members to approve an agency’s new

regulations before they took effect. See 306 U.S. at 6,

15, 59 S. Ct. 379. Adkins, meanwhile, affirmed a

modest principle: Congress may formalize the role of

private parties in proposing regulations so long as that

role is merely “as an aid” to a government agency that

retains the discretion to “approve[], disapprove[], or

modif[y]” them. 310 U.S. at 388, 60S. Ct. 907. Like

the private parties in Currin, Amtrak has an effective

veto over regulations developed by the FRA. And

like those in Adkins, Amtrak has a role in filling the

content of regulations. But the similarities end there.

The industries in Currin did not craft the regulations,

while Adkins involved no private check on an agency’s

10a

regulatory authority.‘ Even more damningly, the

agency in Adkins could unilaterally change regulations

proposed to it by private parties, whereas Amtrak

enjoys authority equal to the FRA. Should the FRA

prefer an alternative to Amtrak’s proposed metrics

and standards, § 207 leaves it impotent to choose its

version without Amtrak’s permission. No case pre-

figures the unprecedented regulatory powers dele-

gated to Amtrak.®

‘ For what it is worth, Currin also involved the collective partic-

ipation of two thirds of industry members, and the regulations in

Adkins arose from district boards comprising multiple members of

the regulated industry. Neither upheld a statute that favored a

single firm over all its market rivals.

® The government also cites various decisions from other Cir-

cuits that purportedly support its position. All are distinguisha-

ble. Several upheld schemes like that in Currin in which the ef-

fect of regulations was contingent upon the assent of a certain por-

tion of the regulated industry. See Ky. Div., Horsemen's Benevo-

lent and Protective Ass’n v. Turfway Park Racing Ass’n, 20 F.3d

1406, 1416 (6th Cir. 1994); Sequoia Orange Co. v. Yeutter, 973 F.2d

752, 759 (9th Cir. 1992). The others resemble Adkins insofar as

they approve structures in which private industry members serve

in purely advisory or ministerial functions. See Pittston Co. v.

United States, 368 F.3d 385, 394-97 (4th Cir. 2004); United States v.

Frame, 885 F.2d 1119, 1128-29 (3d Cir. 1989), abrogated on other

grounds by Glickman v. Wileman Bros. & Elliott, Inc., 521 US.

457, 117 S. Ct. 2130, 188 L. Ed. 2d 585 (1997); Sorrell v. SEC, 679

F.2d 1323, 1325-26 (9th Cir. 1982); First Jersey Sec., Inc. v. Bergen,

605 F.2d 690, 697 (3d Cir. 1979); Todd & Co. v. SEC, 557 F.2d 1008,

1012-13 (3d Cir. 1977); R.H. Johnson & Co. v. SEC, 198 F.2d 690,

695 (2d Cir. 1952). In none of these cases did a private party

stand on equal footing with a government agency.

lla

The government also points out that the metrics

and standards themselves impose no liability. Ra-

ther, they define the circumstances in which the STB

will investigate whether infractions are attributable to

a freight railroad’s failure to meet its preexisting stat-

utory obligation to accord preference to Amtrak’s

trains. See PRIIA § 213(a), 49 U.S.C. § 24308(f).

We are not entirely certain what to make of this argu-

ment. Taken to its logical extreme, it would preclude

all preenforcement review of agency rulemaking, so it

is probably unlikely the government is pressing so im-

modest a claim.’ If the point is merely that the STB

adds another layer of government “oversight” to Am-

trak’s exercise of regulatory power, this precaution

does not alter the analysis. Government enforcement

power did not save the rulemaking authority of the

private coal companies in Carter Coal, nor the power of

* AAR’s Reply Brief treated this argument as an ordinary ripe-

ness challenge. See Br. 18-21. If that is what the government in-

tended, then we are not persuaded. As a purely legal question,

§ 207’s constitutionality is appropriate for immediate judicial reso-

lution. See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct.

1507, 18 L. Ed. 2d 681 (1967), overruled on other grounds by Cali-

fano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977).

And depriving AAR of review at this stage would result in consid-

erable hardship. See United Christian Scientists v. Christian Sci.

Bd. of Dirs., First Church of Christ, Scientist, 829 F.2d 1152, 1160

n.29 (D.C. Cir. 1987). The record is replete with affidavits from

the freight railroads describing the immediate actions the metrics

and standards have forced them to take. See Decl. of Paul E. La-

due 1% 6-9, at 3-5; Decl. of Mark M. Owens 1 9, at 4; Decl. of Virg-

inia Marie Beck 17 9-11, at 4-6; Decl. of Peggy Harris 11 8-14, at

3-5.

12a

private landowners in Washington ez rel. Seattle Title

Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50, 73

L. Ed. 210 (1928), to impose a zoning restriction on a

neighbor’s tract of land. As is often the case in ad-

ministrative law, the metrics and standards lend defi-

nite regulatory force to an otherwise broad statutory

mandate. See, e.g., Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 465, 121 S. Ct. 903, 149 L. Ed. 2d 1

(2001). The preference for Amtrak’s traffic may pre-

date the PRIIA, but the metrics and standards are

what channel its enforcement. Certainly the FRA

and Amtrak saw things that way, responding to one

public comment by noting the STB “is the primary en-

forcement body of the standards.” J.A. 63 (emphasis

added). Not only that, § 207 directs “Amtrak and its

host carriers” to include the metrics and standards in

their Operating Agreements “[t]o the extent practica-

ble.” PRIIA § 207(c), 49 U.S.C. § 24101 (note). The

STB’s involvement is no safe harbor from AAR’s con-

stitutional challenge to § 207.

As far as we know, no court has invalidated a

scheme like § 207’s, but perhaps that is because no

parallel exists. Unprecedented constitutional ques-

tions, after all, lack clear and controlling precedent.

We nevertheless believe Free Enterprise Fund v. Pub-

lic Co. Accounting Oversight Board, — U.S. —, 130

S. Ct. 3188, 177 L. Ed. 2d 706 (2010), offers guidance.

There the Supreme Court deemed it a violation of sep-

aration of powers to endow inferior officers with two

layers of good-cause tenure insulating them from re-

moval by the President. See id. at 3164. Two princi-

ples from that case are particularly resonant. To be-

gin with, just because two structural features raise no

13a

constitutional concerns independently does not mean

Congress may combine them in a single statute. Free

Enterprise Fund deemed invalid a regime blending

two limitations on the President’s removal power that,

taken separately, were unproblematic: the establish-

ment of independent agencies headed by principal offi-

cers shielded from dismissal without cause, see Hum-

phrey’s Ex’r v. United States, 295 U.S. 602, 629-31, 55

S. Ct. 869, 79 L. Ed. 1611 (1935), and the protection of

certain inferior officers from removal by principal offi-

cers directly accountable to the President, see Morri-

son v. Olson, 487 U.S. 654, 691-93, 108 S. Ct. 2597, 101

L. Ed. 2d 569 (1988). See 130 S. Ct. at 3146-47. So

even if the government is right that § 207 merely syn-

thesizes elements approved by Currin and Adkins,

that would be no proof of constitutionality.

As for the second principle, Free Enterprise Fund

also clarifies that novelty may, in certain circumstanc-

es, signal unconstitutionality. That double good-

cause tenure, for example, lacked an antecedent in the

history of the administrative state was one reason to

suspect its legality:

“Perhaps the most telling indication of the severe

constitutional problem with the PCAOB is the lack

of historical precedent for this entity. Neither the

majority opinion nor the PCAOB nor the United

States as intervenor has located any historical ana-

logues for this novel structure. They have not

identified any independent agency other than the

PCAOB that is appointed by and removable only for

cause by another independent agency.”

l4a

Id. at 3159 (quoting Free Enter. Fund v. Pub. Co. Ac-

counting Oversight Bd., 5387 F.3d 667, 699 (D.C. Cir.

2008) (Kavanaugh, J., dissenting)); accord Nat'l Fed’n

of Indep. Bus. v. Sebelius, — U.S. —, 132 S. Ct. 2566,

2586, 183 L. Ed. 2d 450 (2012). In defending § 207,

the government revealingly cites no case—nor have we

found any—embracing the position that a private enti-

ty may jointly exercise regulatory power on equal

footing with an administrative agency. This fact is

not trivial. Section 207 is as close to the blatantly un-

constitutional scheme in Carter Coal as we have seen.

The government would essentially limit Carter Coal to

its facts, arguing that “[nJo more is constitutionally re-

quired” than the government’s “active oversight, parti-

cipation, and assent” in its private partner’s rulemak-

ing decisions. Appellee’s Br. 19. This proposition—

one we find nowhere in the case law—vitiates the prin-

ciple that private parties must be limited to an adviso-

ry or subordinate role in the regulatory process.

To make matters worse, § 207 fails to meet even the

government’s ad hoc standard. Consider what would

have happened if Amtrak and the FRA could not have

reached an agreement on the content of the metrics

and standards within 180 days of the PRITA’s enact-

ment. Amtrak could have “petition[ed] the Surface

Transportation Board to appoint an arbitrator to assist

the parties in resolving their disputes through binding

arbitration.” PRIIA 207(d), 49 U.S.C. § 24101 (note).

And nothing in the statute precludes the appointment

15a

of a private party as arbitrator.’ That means it would

have been entirely possible for metrics and standards

to go into effect that had not been assented to by a

single representative of the government. Though

that did not in fact occur here, § 207’s arbitration pro-

vision still polluted the rulemaking process over and

above the other defects besetting the statute. As a

formal matter, that the recipients of illicitly delegated

authority opted not to make use of it is no antidote.

It is Congress’s decision to delegate that is unconstitu-

tional. See Whitman, 531 U.S. at 473, 121 S. Ct. 903.

As a practical matter, the FRA’s failure to reach an

agreement with Amtrak would have meant forfeiting

regulatory power to an arbitrator the agency would

have had no hand in picking. Rather than ensuring

Amtrak would “function subordinately” to the FRA,

Adkins, 310 U.S. at 399, 60 S. Ct. 907, this backdrop

stacked the deck in favor of compromise. Even for

government agencies, half an apple is better than none

at all.

’ The government notes § 207’s arbitration provision does not

require the arbitrator be a private party. This is irrelevant.

“[AJn agency can[not] cure an unlawful delegation of legislative

power by adopting in its discretion a limiting construction of the

statute.” Whitman, 531 U.S. at 472, 121 S. Ct. 903. Nor does the

canon of constitutional avoidance offer a solution. The statute’s

text precludes the government’s suggestion that we construe the

open-ended language “an arbitrator” to include only federal enti-

ties. The constitutional avoidance canon is an interpretive aid, not

an invitation to rewrite statutes to satisfy constitutional strictures.

Reno v. ACLU, 521 U.S. 844, 884-85, 117 S. Ct. 2329, 188 L. Ed. 2d

874 (1997).

16a

We remain mindful that the Constitution “contem-

plates that practice will integrate the dispersed powers

into a workable government.” Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S. Ct. 863, 96

L. Ed. 1153 (1952) (Jackson, J., concurring). But a

flexible Constitution must not be so yielding as to be-

come twisted. Unless it can be established that Am-

trak is an organ of the government, therefore, § 207 is

an unconstitutional delegation of regulatory power to a

private party.

Now the crucial question: is Amtrak indeed a pri-

vate corporation? If not—if it is just one more gov-

ernment agency—then the regulatory power it wields

under § 207 is of no constitutional moment.

Many of the details of Amtrak’s makeup support the

government’s position that it is not a private entity of

the sort described in Carter Coal. Amtrak’s Board of

Directors includes the Secretary of Transportation (or

his designee), seven other presidential appointees, and

the President of Amtrak. See 49 U.S.C. § 24302(a).

The President of Amtrak—the one Board member not

appointed by the President of the United States—is in

turn selected by the eight other members of the Board.

See id. § 24303(a). Amtrak is also subject to the

Freedom of Information Act. See id. § 24301(e).

Amtrak’s equity structure is similarly suggestive. As

of September 30, 2011, four common stockholders

owned 9,385,694 outstanding shares, which they ac-

quired from the four railroads whose intercity pas-

senger service Amtrak assumed in 1971. BDO USA,

LLP, NATIONAL RAILROAD PASSENGER CORPORATION

17a

AND SUBSIDIARIES (AMTRAK) “ONSOLIDATED FINAN-

CIAL STATEMENTS: YEARS ENDED SEPTEMBER 30,

2011 AND 2010, at 18 (2011) (J.A. 351). At the same

time, however, the federal government owned all

109,396,994 shares of Amtrak’s preferred stock, each

share of which is convertible into 10 shares of common

stock. Jd. at 17 (J.A. 350). And, all that stands be-

tween Amtrak and financial ruin is congressional lar-

gesse. See id. at 6 (J.A. 339).

That being said, Amtrak’s legislative origins are not

determinative of its constitutional status. Congress’s

power to charter private corporations was recognized

early in our nation’s history. See McCulloch v. Mary-

land, 17 U.S. (4 Wheat.) 316, 409, 4 L. Ed. 579 (1819).

And, as far as Congress was concerned, that is exactly

what it was doing when it created Amtrak. As Con-

gress explained it, Amtrak “shall be operated and

managed as a for-profit corporation” and “is not a de-

partment, agency, or instrumentality of the United

States Government.” 49 U.S.C. § 24301(a). We have

previously taken Congress at its word and relied on

this declaration in deciding whether the False Claims

Act applies to Amtrak. See United States ex rel. Tot-

ten v. Bombardier Corp., 380 F.3d 488, 490 (D.C. Cir.

2004) (“Amtrak is not the Government.”); id. at 491

(“Amtrak is Not the Government.”); id. at 502 (“Am-

trak is not the Government.”). Amtrak agrees:

“The National Railroad Passenger Corporation, also

known as Amtrak, is not a government agency or es-

tablishment [but] a private corporation operated for

profit.” NAT'L R.R. PASSENGER CORP., FREEDOM OF

INFORMATION ACT HANDBOOK 1 (2008). And, some-

18a

what tellingly, Amtrak’s website is www.amtrak.com—

not www.amtrak.gov.

How to decide? Since, in support of its claim that

Amtrak is a public entity, the government looks past

labels to how the corporation functions, it is worth ex-

amining what functional purposes the public-private

distinction serves when it comes to delegating regula-

tory power. We identify two of particular impor-

tance. First, delegating the government’s powers to

private parties saps our political system of democratic

accountability. See Mich. Gambling Opposition v.

Kempthorne, 525 F.3d 23, 34 (D.C. Cir. 2008) (Brown,

J., dissenting in part). This threat is particularly

dangerous where both Congress and the Executive can

deflect blame for unpopular policies by attributing

them to the choices of a private entity. See NARUC,

737 F.2d at 1143 n.41; cf New York v. United States,

505 U.S. 144, 169, 112 S. Ct. 2408, 120 L. Ed. 2d 120

(1992) (“{[W]here the Federal Government directs the

States to regulate, it may be state officials who will

bear the brunt of public disapproval, while the federal

officials who devised the regulatory program may re-

main insulated from the electoral ramifications of their

decision.”). This worry is certainly present in the

case of § 207, since Congress has expressly forsworn

Amtrak’s status as a “department, agency, or instru-

mentality of the United States Government.” 49

U.S.C. § 24801(a)(3). Dislike the metrics and stan-

dards Amtrak has concocted? It’s not the federal

government’s fault—Amtrak is a “for-profit corpora-

tion.” Jd. § 24301(a)(2).

19a

Second, fundamental to the public-private distinc-

tion in the delegation of regulatory authority is the be-

lief that disinterested government agencies ostensibly

look to the public good, not private gain. For this

reason, delegations to private entities are particularly

perilous. Carter Coal specificatty condemned delega-

tions made not “to an official or an official body, pre-

sumptively disinterested, but to private persons whose

interests may be and often are adverse to the interests

of others in the same business.” 298 U.S. at 311, 56

S. Ct. 855. Partly echoing the Constitution’s guaran-

tee of due process, this principle ensures that reguia-

tions are not dictated by those who “are not bound by

any official duty,” but may instead act “for selfish

reasons or arbitrarily.” Roberge, 278 U.S. at 122, 49

S. Ct. 50. More recent decisions are also consistent

with this view. See Pittston Co., 368 F.3d at 398;

NARUC, 737 F.2d at 1143-44; Sierra Club v. Sigler,

695 F.2d 957, 962 n.3 (5th Cir. 1983). Amtrak may not

compete with the freight railroads for customers, but it

does compete with them for use of their scarce track.

Like the “power conferred upon the majority

to regulate the affairs of an unwilling minority” in

Carter Coal, § 207 grants Amtrak a distinct competi-

tive advantage: a hand in limiting the freight rail-

roads’ exercise of their property rights over an essen-

tial resource. 298 U.S. at 311, 56S. Ct. 855.

Because Amtrak must “be operated and managed as

a for-profit corporation,” 49 U.S.C. § 24801(a)(2), the

fact that the President has appointed the bulk of

its Board does nothing to exonerate its management

from its fiduciary duty to maximize company profits.

Also consistent with this purpose, “Amtrak is encour-

20a

aged to make agreements with the private sector

and undertake initiatives that are consistent with

good business judgment and designed to maximize its

revenues and minimize Government subsidies.” /d.

§ 24101(d). Yet § 207 directs Amtrak and its host car-

riers to incorporate the metrics and standards in their

Operating Agreements. See id. § 24101(c) note. So

to summarize: Amtrak must negotiate contracts that

will maximize its profits; those contracts generally

must, by law, include certain terms; and Amtrak has

the power to define those terms. Perverse incentives

abound. Nothing about the government’s involve-

ment in Amtrak’s operations restrains the corporation

from devising metrics and standards that inure to its

own financial benefit rather than the common good.

And that is the very essence of the public-private dis-

tinction when a claim of unconstitutional delegation

arises.

No discussion of Amtrak’s status as a private or

public institution would be complete, however, without

an examination of the Supreme Court’s decision in

Lebron v. National Railroad Passenger Corp., 513

U.S. 374, 115 S. Ct. 961, 180 L. Ed. 2d 902 (1995).°

There the Court held that Amtrak “is part of the Gov-

ernment for purposes of the First Amendment.” Jd.

at 400, 115 S. Ct. 961. Otherwise, the majority cau-

® Strangely, the government’s brief places almost no emphasis

on Lebron. Perhaps this indicates the government’s agreement

with AAR’s reading of the case. Whatever the reason for this

near-silence, we think it important to address the Supreme Court’s

most explicit discussion of Amtrak’s status.

Zla

tioned, the government could “evade the most solemn

obligations imposed in the Constitution by simply re-

sorting to the corporate form.” Jd. at 397, 115 S. Ct.

961. What the Court did not do in Lebron was con-

clude that Amtrak counted as part of the government

for all purposes. On some questions—Does the Ad-

ministrative Procedure Act apply to Amtrak? Does

Amtrak enjoy sovereign immunity from suit?—Con-

gress’s disclaimer of Amtrak’s governmental status is

dispositive. See id. at 392, 115 S. Ct. 961; Totten, 380

F.3d at 491-92. This makes sense: Congress has the

power to waive certain governmental privileges, like

sovereign immunity, that are within its legislative

control; but it cannot circumvent the Bill of Rights by

simply dubbing something private.

Whether § 207 effects an unconstitutional delega-

tion is a constitutional question, not a statutory one.

But just because Lebron treated Amtrak as a govern-

ment agency for purposes of the First Amendment

does not dictate the same result with respect to all

other constitutional provisions. To view Lebron in

this way entirely misses the point. In Lebron, view-

ing Amtrak as a strictly private entity would have per-

mitted the government to avoid a constitutional pro-

hibition; in this case, deeming Amtrak to be just an-

other governmental entity would allow the government

to ignore a constitutional obligation. Just as it is im-

permissible for Congress to employ the corporate form

to sidestep the First Amendment, neither may it reap

the benefits of delegating regulatory authority while

absolving the federal government of all responsibility

for its exercise. The federal government cannot have

its cake and eat it too. In any event, Lebron’s holding

22a

was comparatively narrow, deciding only that Amtrak

is an agency of the United States for the purpose of

the First Amendment. 513 U.S. at 394, 115 S. Ct. 961.

It did not opine on Amtrak’s status with respect to the

federal government’s structural powers under the

Constitution—the issue here.

This distinction is more than academic. When Le-

bron contrasted “the constitutional obligations of Gov-

ernment” from “the ‘privileges of the government,’” it

was not drawing a distinction between questions that

are constitutional from those that are not. Any “priv-

ilege” of the federal government must also be an-

chored in the Constitution. Jd. at 399, 115 S. Ct. 961.

As our federal government is one of enumerated pow-

ers, the Constitution’s structural provisions are the

source of Congress’s power to act in the first place.

See United States v. Lopez, 514 U.S. 549, 552, 115

S. Ct. 1624, 131 L. Ed. 2d 626 (1995); THE FEDERALIST

No. 45 (James Madison). And, generally speaking,

these provisions authorize action without mandating it.

Congress’s power to regulate interstate commerce, for

example, does not dictate the enactment of this or that

bill within its proper scope. By contrast, individual

rights are “affirmative prohibitions” on government

action that become relevant “only where the Govern-

ment possesses authority to act in the first place.”

Nat’l Fed’n of Ind. Bus., 132 S. Ct. at 2577. While

often phrased in terms of an affirmative prohibition.

Congress’s inability to delegate government power to

private entities is really just a function of its constitu-

tional authority not extending that far in the first

place. In other words, rather than proscribing what

Congress cannot do, the doctrine defines the limits of

23a

what Congress can do. And, by designing Amtrak to

operate as a private corporation—to seek profit on be-

half of private interests—Congress has elected to deny

itself the power to delegate it regulatory authority

under § 207. Cf Religious Freedom Restoration Act

of 1993, 42 U.S.C. §§ 2000bb to bb-4 (requiring, beyond

what the Constitution mandates, that the federal gov-

ernment “not substantially burden a person’s exercise

of religion even if the burden results from a rule of

general applicability” unless the restriction satisfies

strict scrutiny).

We therefore hold that Amtrak is a private corpo-

ration with respect to Congress’s power to delegate

regulatory authority. Though the federal govern-

ment’s involvement in Amtrak is considerable, Con-

gress has both designated it a private corporation and

instructed that it be managed so as to maximize profit.

In deciding Amtrak’s status for purposes of congres-

sional delegations, these declarations are dispositive.

Skewed incentives are precisely the danger forestalled

by restricting delegations to government instrumen-

talities. And as a private entity, Amtrak cannot be

granted the regulatory power prescribed in § 207.

Ill

We conclude § 207 of the PRIIA impermissibly del-

egates regulatory authority to Amtrak. We need not

reach AAR’s separate argument that Amtrak’s in-

volvement in developing the metrics and standards de-

prived its members of due process. Accordingly, the

judgment of the district court is

Reversed.

24a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Civil Action No. 11-1499 (JEB)

ASSOCIATION OF AMERICAN RAILROADS, PLAINTIFF

Vv.

UNITED STATES DEPARTMENT OF TRANSPORTATION,

ET AL., FEFENDANTS

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

We all know Amtrak—the federally chartered cor-

poration that has provided intercity and commuter

train service to Americans for more than forty years.

But what is Amtrak? Is it a private entity? Or is it

part of the government? While courts have previ-

ously addressed these questions in various other con-

texts, it is on their resolution that much of this case

hinges.

Section 207 of The Passenger Railroad Investment

and Improvement Act of 2008 (PRIIA) requires the

Federal Railroad Administration (FRA) and Amtrak to

“jointly” develop standards to evaluate the perfor-

mance of Amtrak’s intercity passenger trains. Con-

25a

sistent with this mandate, the FRA and Amtrak issued

Metrics and Standards for measuring Amtrak’s on-

time performance and minutes of delay. In this suit,

Plaintiff Association of American Railroads (AAR)—an

organization whose members include freight railroads

that own tracks and facilities on and through which

Amtrak’s trains operate—contends that § 207 both

unconstitutionally delegates rulemaking authority to a

private entity and violates its members’ due-process

rights. Each side has now moved for summary judg-

ment.

The Court concludes that the statute survives both

of Plaintiff’s constitutional challenges. Because the

Supreme Court has held that Amtrak is to be consid-

ered a governmental entity for the purpose of constitu-

tional individual-rights claims, Plaintiff’s due-process

challenge, which is premised on Amtrak’s status as an

interested private party, cannot prevail. The non-

delegation claim, however, poses a closer question.

Ultimately, though, the Court need not decide whether

Amtrak should be considered a governmental entity or

a private party for purposes of that issue. Even if

Amtrak is a private entity, the government is suffi-

ciently involved as to render § 207’s delegation consti-

tutional. The Court, therefore, will grant Defen-

dants’ Motion for Summary Judgment and deny Plain-

tiff’s.

I. Background

By the middle of the twentieth century, the once-

robust intercity passenger-train industry had fallen on

hard times. Formerly the primary means of intercity

26a

travel, the railroads faced crippling competition from

the burgeoning air-travel industry and the new inter-

state highway system. See Def.’s Mot. & Opp., Exh. 1

(Congressional Budget Office, “The Past and Future of

U.S. Passenger Rail Service” (Sept. 2003)) at 5-7. In

an attempt “to avert the threatened extinction of pas-

senger trains in the United States,” Lebron v. Nation-

al R.R. Passenger Corp., 513 U.S. 374, 383, 115 S. Ct.

961, 130 L. Ed. 2d 902 (1995), Congress passed the Rail

Passenger Service Act of 1970, 84 Stat. 1327, 45 U.S.C.

§ 501 et seg. Among other things, the Act established

the National Railroad Passenger Corporation, better

known as Amtrak. See id. § 401(a) (codified at 45

U.S.C. §§ 561-66) (repealed and incorporated in sec-

tions of 49 U.S.C. subtit. V, part C).

Amtrak, which was set up to function as a “private,

for-profit corporation,” 49 U.S.C. § 24301(a), began

operation in May 1971. See Natl R.R. Passenger

Corp. v. Atchison, Topeka and Santa Fe Ry. Corp., 470

U.S. 451, 454, 105 S. Ct. 1441, 84 L. Ed. 2d 432 (1985).

Then, as now, Amtrak’s passenger trains ran primarily

on tracks owned by freight railroads. See Pl.’s Mot.,

Decl. of Thomas Dupree, Exh. H (AAR Comment on

Proposed Metrics and Standards) at 2; Natl R.R.

Passenger Corp. v. Boston & Maine Corp., 503 U.S.

407, 410, 112 S. Ct. 1894, 118 L. Ed. 2d 52 (1992)

(“Most of Amtrak’s passenger trains run over existing

track systems owned and used by freight railroads.”).

To ensure the continued vitality of passenger rail ser-

vice, accordingly, Congress obligated the freight rail-

roads to lease their tracks and facilities to Amtrak.

See 49 U.S.C. § 24308(a). Congress also provided that

27a

Amtrak’s intercity passenger trains would generally

take “preference over freight transportation in using a

rail line, junction, or crossing.” Jd. § 24808(c). Con-

sistent with these statutory mandates, the freight rail-

roads entered into contracts with Amtrak—commonly

known as operating agreements—that set out the rates

Amtrak pays in exchange for use of the railroads’

tracks. See Pl.’s Mot, Decl. of Paul LaDue, 4 12; Pl.’s

Mot., Decl. of Virginia Beck, 4 13; Pl.’s Mot., Decl. of

Mark Owens, 1 12; Pl.’s Mot., Decl. of Peggy Harris,

1 12; see also Dupree Decl., Exh. G (Report of the

Inspector General, U.S. Dep’t of Transp., “Amtrak

Cascades and Coast Starlight Routes” (Sept. 23, 2010))

at 29.

Although Congress has specified that Amtrak “is

not a department, agency, or instrumentality of the

United States Government,” 49 U.S.C. § 24301(a), the

government remains heavily involved in its operations.

Of the nine directors who sit on Amtrak’s board, eight

are directly appointed by the President, with the ad-

vice and consent of the Senate. See 49 U.S.C.

§ 24302. The ninth board member is selected by the

other eight. Jd. Amtrak is required to submit an-

nual reports to Congress and the President, see id.

§§ 24315(a)-(b), and the government owns more than

90% of Amtrak’s stock. See Def.’s Mot., Exh. 2 (Nat’]

R.R. Pass. Corp. and Sub., Consolidated Financial

Statements for the Years Ended Sept. 30, 2011 and

2010 (Dec. 2011)) at 17-18. Because Amtrak has nev-

er managed to become self-sufficient, moreover, the

corporation depends on substantial federal subsidies to

continue its operations. See id. at 6; Dupree Decl.,

28a

Exh. Q (Katherine Shaver, “At 40, Amtrak Struggles

to Stay Up to Sreed,” Wash. Post (May 15, 2011)) at

Cl.

The statute that is the subject of this suit, The Pas-

senger Railroad Investment and Improvement Act of

2008 (PRIIA), Pub. L. No. 11-432, is the latest of sev-

eral pieces of legislation intended to improve Amtrak’s

financial health and the quality of its service. At

issue is § 207 of that Act, which provides, in relevant

part:

[T]he Federal Railroad Administration and Amtrak

shall jointly, in consultation with the Surface Trans-

portation Board, rail carriers over whose rail lines

Amtrak trains operate, States, Amtrak employees,

nonprofit employee organizations representing Am-

trak employees, and groups representing Amtrak

passengers, as appropriate, develop new or improve

existing metrics and minimum standards for meas-

uring the performance and service quality of inter-

city passenger train operations, including [, inter

alia, | on-time performance and minutes

of delay.

PRIITA, § 207(a) (codified at 49 U.S.C. § 24101, note).

The statute provides further details about what those

Metrics and Standards should include, and it states

that, “[t]o the extent practicable, Amtrak and its host

rail carriers shall incorporate the metrics and stand-

ards developed under subsection (a) into their access

and service agreements.” Id. § 207(c).

In addition, § 213(a) of the PRIIA empowers the Sur-

face Transportation Board (STB), “a quasi-independent

29a

three-member body within the Department of Transpor-

tation,” Jowa, Chicago & Eastern R.R. Corp. v. Wash-

ington Cnty., Iowa, 384 F.3d 557, 558-59 (8th Cir.

2004), to initiate an investigation if Amtrak fails to

meet the on-time performance standards laid out in

the Metrics and Standards. See PRIIA § 213(a)

(codified at 49 U.S.C. § 24308(f)). If the STB con-

cludes that “delays or failures to achieve minimum

standards , are attributable to a rail carrier’s

failure to provide preference to Amtrak over freight

transportation,” as required by 49 U.S.C. § 24308(c),

“the Board may award damages against the host rail

carrier.” Jd. § 213(a). If “appropriate,” further-

more, the STB may order that those damages be re-

mitted to Amtrak. See id.

Consistent with § 207’s mandate, the FRA and Am-

trak issued proposed Metrics and Standards on March

13, 2009, see Dupree Decl., Exh. B (Proposed Metrics

and Standards for Intercity Passenger Rail Service

(Mar. 13, 2009)), accepted comments from interested

parties, see 74 Fed. Reg. 10983 (Mar. 13, 2009), and

ultimately published the final version of the Metrics

and Standards on May 6, 2010. See Dupree Decl.,

Exh. D (Final Metrics and Standards for Intercity

Passenger Rail Service, Docket No. FRA-2009-0016

(May 6, 2010)). The Metrics and Standards provide

that Amtrak’s on-time performance is to be assessed

on a route-by-route basis by reference to three sepa-

rate metrics. See id. at 24-30. In general terms,

these metrics address “effective speed,” which is the

route’s distance divided by the average time it takes to

traverse it, “endpoint ontime performance,” which

30a

measures how often trains arrive on time at the end of

the route, and “all-stations on-time performance,”

which measures how often trains arrive on time at each

station along the route. See id. The Metrics and

Standards also set limits on permissible delays, cap-

ping the delays for which a host railroad may be re-

sponsible at 900 minutes per 10,000 route miles. See

id. at 27-28.

These Metrics and Standards went into effect on

May 12, 2010. See id. at 1. Since then, the freight

railroads have already made efforts to achieve the

goals set forth therein. See LaDue Decl., 4% 5-11;

Beck Decl., 1 11; Owens Decl., 1 9; Harris Decl.,

1% 8-10. The FRA’s quarterly reports have, never-

theless, consistently concluded that the Metrics and

Standards are not being met on many of Amtrak’s

routes. See generally Dupree Decl., Exhs. M-P

(FRA’s February, April, July, and September 2011

Quarterly Reports); LaDue Decl., 1 5; Beck Decl., 1 8;

Owens Decl., 1 7; Harris Decl., 1 7. While neither

party has presented evidence that freight railroads

have yet been fined as a result of these shortcomings,

at least one petition has been filed by Amtrak against a

railroad based on its alleged failure to meet the re-

quirements of the Metrics and Standards. See gener-

ally Pl.’s Opp. & Reply, Decl. of Porter Wilkinson,

Exh. A (Petition for Relief by Amtrak, Docket

No. NOR 42134).

Plaintiff in this case, the Association of American

Railroads (AAR), “is a nonprofit trade association

whose members include all of the Class I freight rail-

roads (the largest freight railroads), as well as some

3la

smaller freight railroads and Amtrak.” Compl., 4 10.

It brings this case on behalf of its Class I-member

freight railroads, all of which own tracks on which Am-

trak trains are operated. See id., 1110-11. Because

they are required to incorporate the Metrics and

Standards into their operating agreements where

“practicable” and because they could be subject to

penalties if Amtrak’s failure to live up to those stand-

ards is found to have been caused by their failure to

prioritize Amtrak trains, AAR maintains that these

railroads are directly harmed by § 207 of the PRITA

and the Metrics and Standards promulgated in accor-

dance therewith. See id., 97 11-13. In the instant

suit, AAR claims that § 207 of the PRIIA, which em-

powers the FRA and Amtrak to “jointly” develop Met-

rics and Standards, violates the constitution in two

ways. See id., 11 47-54. Both sides now seek sum-

mary judgment.

II. Legal Standard

Summary judgment may be granted if “the movant

shows that there is no genuine dispute as to any mate-

rial fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106

S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Holcomb v. Pow-

ell, 4383 F.3d 889, 895 (D.C. Cir. 2006). A fact is “ma-

terial” if it is capable of affecting the substantive out-

come of the litigation. Holcomb, 433 F.3d at 895;

Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. 2505.

A dispute is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the non-

moving party. See Scott v. Harris, 550 U.S. 372, 380,

32a

127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Liberty Lob-

by, Inc., 477 U.S. at 248, 106 S. Ct. 2505; Holcomb, 433

F.3d at 895. “A party asserting that a fact cannot be

or is genuinely disputed must support the assertion by

citing to particular parts of materials in the record.”

Fed R. Civ. P. 56(c)(1)(A).

The party seeking summary judgment “bears the

heavy burden of establishing that the merits of his

case are so clear that expedited action is justified.”

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294,

297 (D.C. Cir. 1987). When a motion for summary

judgment is under consideration, “the evidence of the

non-movant{s] is to be believed, and all justifiable

inferences are to be drawn in [her] favor.” Liberty

Lobby, Inc., 477 U.S. at 255, 106 S. Ct. 2505; see also

Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006);

Aka v. Washington Hospital Center, 156 F.3d 1284,

1288 (D.C. Cir. 1998) (en banc). Ona motion for sum-

mary judgment, the Court must “eschew making cred-

ibility determinations or weighing the evidence.”

Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

The nonmoving party’s opposition, however, must

consist of more than mere unsupported allegations or

denials and must be supported by affidavits, declara-

tions, or other competent evidence, setting forth spe-

cific facts showing that there is a genuine issue for

trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v.

Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). The nonmovant is required to provide evi-

dence that would permit a reasonable jury to find in its

favor. Laningham v. United States Navy, 813 F.2d

1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evi-

33a

dence is “merely colorable” or “not significantly pro-

bative,” summary judgment may be granted. Liberty

Lobby, Inc., 477 U.S. at 249-50, 106 S. Ct. 2505.

Itt. Analysia

This case presents two constitutional challenges to

§ 207 of the PRIIA. But before discussing these, the

Court preliminarily notes that AAR, as a representa-

tive of the freight railroads that have operating agree-

ments with Amtrak, has established—and Defendant

has not challenged—its standing to bring them. See,

e.g., Lee’s Summit v. Surface Transp. Bd., 231 F.3d 39,

41 (D.C. Cir. 2000) (courts must ensure plaintiff has

constitutional standing, “swa sponte if need be”). The

freight railroads own tracks on which Amtrak trains

are operated, and they are required by statute to in-

corporate the Metrics and Standards into their oper-

ating agreements where “practicable.” PRIIA,

§ 207(c). If Amtrak’s trains fail to achieve the goals

set out in the Metrics and Standards, moreover, the

freight railroads can be penalized. See id., § 213(a).

Representatives of the railroads have attested that the

Metrics and Standards currently affect their business

operations. See La-Due Decl., 11 5-11; Beck Decl.,

4 11; Owens Decl., 1 9; Harris Decl., 17 8-10. Plain-

tiff has shown, accordingly, that its members have

been injured by the Metrics and Standards promul-

gated under § 207 and that such injury would be re-

dressed by the reliefit seeks. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119

L. Ed. 2d 351 (1992) (reciting the three elements of

constitutional standing: injury, causation, and inju-

ry); Friends of the Earth, Inc. v. Laidlaw Environ-

34a

mental Servs., Inc., 528 U.S. 167, 181, 120 S. Ct. 693,

145 L. Ed. 2d 610 (2000) (organization has standing to

bring suit on its members’ behalf when members

would otherwise have standing, interests at stake are

related to organization’s purpose, and member partic-

ipation unnecessary). As there appear to be no other

jurisdictional or procedural barriers to the resolution

of Plaintiff’s claims, the Court will proceed directly to

these challenges.

AAR first contends that § 207 “violates the nondele-

gation doctrine and the separation of powers principle”

by delegating legislative power to Amtrak, a private

entity. See Compl., 1 51. Second, it argues that

§ 207 violates the Due Process Clause of the Fifth

Amendment by “empower[ing] Amtrak,” an “inte-

rested private part[y],” “to wield legislative and rule-

making power to enhance its commercial position at

the expense of other industry participants.” /d.,

19 53-54. Although these claims are brought under

two different provisions of the Constitution, both in-

volve the same alleged flaw in the statute: the dele-

gation of rulemaking authority to Amtrak. Both,

furthermore, are premised upon Amtrak’s status as a

private entity. Whether Amtrak, a federally char-

tered corporation, should in fact be considered a pri-

vate entity for purposes of Plaintiff’s constitutional

claims is thus the necessary jumping-off point.

Because the answer to that question is clearer (and,

indeed, decisive) with respect to the due-process claim,

the Court will begin there. Concluding that Amtrak

is a governmental entity for purposes of constitutional

individual-rights claims and that AAR’s due-process

35a

claim falls neatly within that category, the Court will

on that ground grant Defendants’ Motion with respect

to that issue. Turning to the nondelegation claim,

though, Amtrak’s status as a governmental or private

entity is less clear. Fortunately, however, the Court

need not resolve that question. Instead, it finds that,

even if Amtrak is a private entity, § 207’s delegation

survives AAR’s nondelegation challenge because the

government retains control over the promulgation of

the Metrics and Standards. The Court will thus

grant Defendants’ Motion with respect to that claim as

well.

A. Due Process Claim

The Fifth Amendment’s Due Process Clause pro-

hibits interested private parties from wielding regula-

tory authority. See Carter v. Carter Coal Co., 298

U.S. 238, 311, 56 S. Ct. 855, 80 L. Ed. 1160 (1936)

(holding that “the power to regulate the business of

another, and especially of a competitor,” is “a denial of

rights safeguarded by the due process clause”); Young

v. United States ex rel. Vuitton et Fils S.A., 481 U.S.

787, 805, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987) (“po-

tential for private interest to influence the discharge of

public duty” violates due process); Gibson v. Berryhill,

411 U.S. 564, 578-79, 93 S. Ct. 1689, 36 L. Ed. 2d 488

(1973) (due process violated when governmental au-

thority exercised by parties with “substantial pecuni-

ary interest in legal proceedings”). Amtrak, AAR

argues, is a private entity that competes for commer-

cial position with the freight railroads. Because

PRIIA endows Amtrak with rulemaking authority,

AAR maintains that the statute contaminates the reg-

36a

ulatory process with the potential for bias and, ac-

cordingly, violates its members’ due-process rights.

AAR’s contention that § 207 violates its members’

due-process rights thus assumes that Amtrak is a

private entity. See Compl., 17 53-54. In light of

Congress’s clear statement that Amtrak “shall be

operated and managed as a for-profit corporation” and

“is not a department, agency, or instrumentality of the

United States Government,” 49 U.S.C. § 24301(a)(3),

that assumption is certainly not baseless. Indeed, the

D.C. Circuit has previously held that “Amtrak is not

the Government” in the context of a False Claims Act

claim. See United States ex rel. Totten v. Bom-

bardier Corp., 380 F.3d 488, 490 (D.C. Cir. 2004).

In Lebron v. National Railroad Passenger Corpo-

ration, 513 U.S. 374, 115 S. Ct. 961, 180 L. Ed. 2d 902

(1995), however, the Supreme Court addressed Am-

trak’s status as a governmental or private entity in the

context of a First Amendment claim. The Court

stated that Congress’s statements that Amtrak is not

the government are “assuredly dispositive of Amtrak’s

status for purposes of matters that are with-

in Congress’s control—for example, whether it is sub-

ject to statutes that impose obligations or confer pow-

ers upon Government entities, such as the Admini-

strative Procedure Act.” Jd. at 392, 115 S. Ct. 961

(citing 45 U.S.C, § 541 (repealed, revised, and incor-

porated at 49 U.S.C. § 24301(a))). For purposes of

matters that are outside of Congress’s control, how-

ever, the Court emphasized that “it is not for Congress

to make the final determination of Amtrak’s status as a

Government entity. ” Id. “If Amtrak is, by

37a

its very nature, what the Constitution regards as the

Government, congressional pronouncement that it is

not such can no more relieve it of its First Amendment

restrictions than a similar pronouncement could ex-

empt the Federal Bureau of Investigation from the

Fourth Amendment.” Jd. “It surely cannot be,” the

Court stressed, “that government is able to

evade the most solemn obligations imposed in the Con-

stitution by simply resorting to the corporate form.”

Id. at 396, 115 S. Ct. 961.

The Court, therefore, undertook a functional analy-

sis to determine whether Amtrak should be considered

a governmental entity in the context of the constitu-

tional claim presented in that case. See id. at 393-

400, 115 S. Ct. 961. Noting that Amtrak “was created

explicitly for the furtherance of federal gov-

ernmental goals” and that “six of the corporation’s eight

externally named directors , are appointed

directly by the President,” id. at 397-98, 115 S. Ct. 961,

the Court found that the government exercises perma-

nent control over Amtrak not merely “as a creditor[,]

but as a policy maker.” Jd. at 399, 1158S. Ct. 961. It

held, accordingly, that Amtrak “is an agency or in-

strumentality of the United States for the purpose of

individual rights guaranteed against the Government

by the Constitution.” Jd. at 394, 1158S. Ct. 961.

This discussion in Lebron plainly dictates the out-

come of AAR’s due-process claim, which falls squarely

in the category of constitutional individual-rights

claims. See, e.g., J. McIntyre Mach., Ltd. v. Nicastro,

— US. —, 181 S. Ct. 2780, 2786, 180 L. Ed. 2d 765

(2011) (“The Due Process Clause protects an individu-

38a

al’s right to be deprived of life, liberty, or property

only by the exercise of lawful power.”) (plurality opin-

ion). The two hallmarks of government control that

the Lebron Court found decisive—namely, that Am-

trak was created by special law for the furtherance of

governmental objectives and that the government re-

tained the authority to appoint a majority of directors

—moreover, have not changed. Indeed, when Lebron

was decided, the President appointed only six of Am-

trak’s nine directors, see Lebron, 513 U.S. at 397, 115

S. Ct. 961; he now appoints eight of the nine. See 49

U.S.C. § 24802(a). The government, moreover, re-

tains more than 90% of Amtrak’s stock, see Consoli-

dated Financial Statements at 17-18, appropriates for

Amtrak more than a billion dollars annually, see

PRIIA, § 101, and sets salary limits for Amtrak’s em-

ployees. See 49 U.S.C. § 24303(b). In addition, Am-

trak is required to submit annual reports to Congress

and the President. See id. §§ 24315(a)-(b); cf Rocap

v. Indiek, 539 F.2d 174, 180 n.12 (D.C. Cir. 1976) (con-

sidering need to report to Congress as an indicator of

federal control for purpose of determining FDIC’s

governmental status under a federal statute).

AAR’s attempts to distinguish Lebron fall short of

their mark. Plaintiff, for example, stresses that Con-

gress removed Amtrak from the list of mixed-

ownership government corporations after Lebron was

decided. See Pl.’s Mot. at 27-28 (citing Pub. L.

No. 105-134, § 415(2)). The inference it would have

the Court draw, it seems, is that this changed circum-

stance should affect the outcome. The Supreme

Court, however, clearly stated that Congress’s ipse

39a

dixit cannot change Amtrak’s nature for purposes of

constitutional individual-rights claims. See Lebron,

513 U.S. at 392, 396, 115 S. Ct. 961. Just as Con-

gress’s plain statement that Amtrak should be re-

garded as a private corporation does not make it such

in the eyes of the Constitution, see id. at 392, 115 S. Ct.

961, its removal of Amtrak’s name from a list of mixed-

ownership corporations, a fortiori, similarly does not

alter its nature. It was the still-unchanged facts that

Amtrak was created “by special law for the

furtherance of governmental objectives” and that the

government “retains for itself permanent authority to

appoint a majority of [its] directors”—not the presence

of Amtrak’s name on a statutory list—moreover, that

were decisive in Lebron. See id. at 400, 115 S. Ct.

961. And while AAR is correct that Amtrak has some

private shareholders, that was the case at the time

Lebron was decided and did not alter its analysis.

In addition, even if Plaintiff is right that Amtrak is

a private entity for purposes of PRIIA, which it argues

was intended “to boost the bottom-line of a for-profit

corporation,” Pl.’s Mot. at 28, that does not change its

status for purposes of the Constitution. See Lebron,

513 U.S. at 392, 115 S. Ct. 961 (concluding that Con-

gress can determine Amtrak’s status for the purpose

of “matters that are within Congress’s control,” like

other federal statutes, but not for matters outside its

control, like the Constitution); see also Totten, 380

F.3d at 492 (concluding Amtrak is the government for

purposes of the False Claims Act because “False

Claims Act coverage is a matter within Con-

gress’s control”). Again, Congress can only deter-

40a

mine Amtrak’s status for the purpose of issues it has

the power to control. See Lebron, 513 U.S. at 392, 115

S. Ct. 961. Because AAR contends that PRIIA vio-

lates the Constitution—not that Amtrak or any other

entity violated PRITA— it is, of course, Amtrak’s sta-

tus for purposes of constitutional individual-rights

claims, not PRIIA claims, that controls.

As Plaintiff emphasizes, furthermore, “[T]he Leb-

ron Court explained that while Amtrak is part of the

Government for purposes of the constitutional obliga-

tions of Government—such as the obligation to respect

an artist’s First Amendment rights—Amtrak is not

part of the Government for purposes of the inherent

powers and privileges of the Government.” PI.’s Opp.

& Reply at 8 (emphases in original). AAR’s due-

process challenge plainly belongs in the former camp.

Just as the Government is obligated to respect indi-

viduals’ First Amendment rights, see Lebron, 513 U.S.

at 399, 115 S. Ct. 961, so too is it constitutionally re-

quired to respect their due-process rights. Con-

sistent with the standard Plaintiff itself enumerates,

then, Amtrak is a governmental entity in the context of

this claim. See id. (holding that Amtrak “is an agency

of the Government . . for purposes of the con-

stitutional obligations of Government”).

Perhaps recognizing that Lebron poses an insur-

mountable barrier to its argument that Amtrak is a

private entity for purposes of its due-process claim,

AAR attempts to raise two alternative arguments in its

Opposition and Reply. See Pl.’s Opp. & Reply at 15-

17. First, it contends that § 207 violates its members’

due-process rights even if Amtrak is a governmental

4la

entity. See id. at 15-16. Amtrak’s pecuniary in-

centives, it argues, are so significant as to constitute a

due-process violation even if Amtrak is not a private

party. See id. (distinguishing, e.g., Marshall v. Jer-

rico, 446 U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182

(1980), which held that an agency’s having a “remote”

financial interest in proceedings did not violate due

process, id. at 243-52, 100 S. Ct. 1610). Second, AAR

suggests that finding Amtrak to be a governmental

entity renders its structure unconstitutional under the

Appointments Clause. See id. at 16-17.

Neither argument, however, was raised in AAR’s

initial brief, and both are outside the scope of its Com-

plaint, which premises its due-process claim on Am-

trak’s status as a private entity. See Compl., 11 53-

54. Especially given that these arguments are raised

only cursorily and that one is a new constitutional

claim, the Court declines to address them. See, e.g.,

Jo v. Dist. Of Columbia, 582 F. Supp. 2d 51, 64 (D.D.C.

2008) (“It is well-established in this district that a

plaintiff cannot amend his Complaint in an opposition

to a defendant’s motion for summary judgment.”);

Quick v. U.S. Dep’t of Commerce, 775 F. Supp. 2d 174,

183 (D.D.C. 2011). In passing, however, the Court

notes that, in light of the FRA’s and STB’s involve-

ment and Amtrak’s political accountability, see Section

III.B., infra, the potential for bias appears remote,

and the scheme, accordingly, would likely pass muster

under the Due Process Clause. See Marshall, 446

U.S. at 248, 100 S. Ct. 1610. Concluding that Amtrak

is to be considered part of the government for pur-

poses of Plaintiff’s due-process claim, furthermore,

42a

does not necessarily implicate the Appointments

Clause issues AAR highlights, which seem to relate

more to the nondelegation challenge than the due-

process claim. In any event, the Court here goes no

further than Lebron’s clear holding that Amtrak is the

government in the context of claims that invoke the

Constitution’s guarantees of individual rights.

In the end, because Amtrak is a governmental en-

tity for purposes of Plaintiff’s due-process challenge,

the Court will grant Defendants’ Motion and denv

Plaintiff’s with respect to that claim.

B. Nondelegation Claim

Plaintiff’s next challenge asserts that Congress un-

constitutionally delezated lawmaking authority to Am-

trak, a nongovernmental entity, when it gave Amtrak

joint responsibility for issuing the Metrics and Stand-

ards. This claim thus also takes as its premise that

Amtrak is a private entity. See Compl., 17 48-49.

Whether Lebron dictates Amtrak’s status for purposes

of this claim, though, is less clear. On the one hand,

the structural constitutional principles from which

AAR’s nondelegation claim derives are distinct—both

legally and logically—from the document’s guarantees

of individual rights. Lebron, in fact, approached the

question of Amtrak’s status with the assumption that

its answer could be different with respect to different

kinds of claims. Its explicit holding that Amtrak is

the government “for the purpose of individual rights

guaranteed against the Government by the Constitu-

tion,” Lebron, 513 U.S. at 394, 115 S. Ct. 961, fairly im-

plies that Amtrak’s status might be different in the

43a

context of other kinds of constitutional claims—per-

haps especially those invoking structural principles in

an attempt to limit Congress’s ability to utilize private

forms.

On the other hand, it is possible to conceive of the

nondelegation doctrine, especially when invoked by

private parties, as a guarantor of individual rights.

See, e.g., Bond v. United States, — U.S. —, 131 S. Ct.

2355, 2365, 180 L. Ed. 2d 269 (2011) (“The structural

principles secured by the separation of powers protect

the individual as well [as the branches of govern-

ment].”). Looked at this way, AAR’s nondelegation

claim might fall into the category of individual-rights

claims for purposes of which Lebron held Amtrak to be

a governmental entity. Indeed, given the similarity

of AAR’s two claims, it would seem strange to consider

Amtrak the government for purposes of due process

but a private entity for purposes of nondelegation.

Alternatively, Lebron can be read as holding that Am-

trak should be considered part of the government for

purposes of any constitutional claim. If the Court’s

logic was that Congress can designate an entity’s sta-

tus for the purpose of things it can control (like other

statutes), but cannot change its nature for the purpose

of things it cannot control (like the Constitution), Leb-

ron’s conclusion that Amtrak “is, by its very nature,

what the Constitution regards as the Government,” id.

at 392, 115 S. Ct. 961, would appear to apply equally to

a nondelegation claim.

The Court, however, need not decide Amtrak’s sta-

tus in the context of AAR’s nondelegation challenge.

Even if Amtrak is a private entity, as Plaintiff con-

44a

tends, the government retains ultimate control over

the promulgation of the Metrics and Standards.

Section 207’s delegation, accordingly, passes constitu-

tional muster.

Article I of the Constitution provides that “All legi-

slative Powers . . shall be vested in a Congress

of the United States.” Art. I, § 1, cl. 1. The Su-

preme Court, nevertheless, has long interpreted the

Constitution to permit Congress to delegate legislative

power to executive agencies within certain constraints.

See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1,

41,6 L. Ed. 253 (1825); Sunshine Anthracite Coal Co.

v. Adkins, 310 U.S. 381, 398, 60 S. Ct. 907, 84 L. Ed.

1263 (1940) (“Delegation by Congress has long been

recognized as necessary in order that the exertion of

legislative power does not become a futility.”); Mis-

tretta v. United States, 488 U.S. 361, 372, 109 S. Ct.

647, 102 L. Ed. 2d 714 (1989). Courts have also up-

held delegations of rulemaking authority to nongov-

ernmental entities, but such delegations are subject to

more significant strictures. See Sunshine Anthra-

cite, 310 U.S. at 388, 399, 60 S. Ct. 907; Pittston Co. v.

United States, 368 F.3d 385, 394 (4th Cir.2004); United

States v. Frame, 885 F.2d 1119, 1128-29 (3d Cir. 1989)

(abrogated on other grounds). A delegation to a pri-

vate party without sufficient government oversight,

the Supreme Court has held, is “legislative delegation

in its most obnoxious form.” Carter Coal, 298 U.S. at

311, 56 S. Ct. 855.

A series of cases in the Supreme Court and the

Courts of Appeals has partially illuminated the limits

of delegations to private entities. In Sunshine An-

45a

thracite, for example, the Court upheld a statutory

scheme that permitted groups of coal producers to set

prices for coal on the ground that those prices would

become effective only when approved by the National

Bituminous Coal Commission, a government agency.

See 310 U.S. at 388, 399, 60 S. Ct. 907. In concluding

that the delegation was constitutional, the Court em-

phasized that the private parties “function[ed] subor-

dinately” to the government. /d. at 399, 60S. Ct. 907.

In Pittston, the Fourth Circuit rejected a challenge to

a statute that permitted a private entity to decide

whether to refer coal companies to the Secretary of

Treasury for an enforcement action. See 368 F.3d at

397. Because the private entity’s role was merely

“advisory” and the Secretary made the ultimate deci-

sion as to whether a penalty would be imposed, the

court found that the statute complied with constitu-

tional separation-of-powers principles. See id. Fi-

nally, in Frame, a private group of cattle ranchers and

importers collected assessments from others in the

cattle industry and took “the initiative in planning how

those funds [would] be spent.” 885 F.2d at 1123,

1128. Because “the amount of government oversight

[was] considerable,” however, the Third Cir-

cuit upheld the statutory provision. See id. at 1128-

29.

These cases—upon which both parties rely—

confirm that Congress cannot delegate to a private

party absolute power to enact regulations that will

carry the force of law. See also Carter Coal, 298 U.S.

at 311, 56 S. Ct. 855. A private party may play a role

in the rulemaking process, but the Constitution re-

46a

quires that the government retain ultimate control.

Section 207 passes this test. Not only is the FRA co-

author of the Metrics and Standards—and, as a result,

Amtrak could not have promulgated them without the

F RA’s approval—but the STB also retains control over

their enforcement. And even if the involvement of

these agencies is not enough to ensure the constitu-

tionality of § 207’s delegation, the government retains

structural control over Amtrak itself. Taken togeth-

er, the FRA’s and STB’s roles and the government’s

control over Amtrak render the statutory scheme con-

stitutional.

Section 207 of the PRIIA provides that the FRA

and Amtrak shall “jointly” develop the Metrics and

Standards. While the AAR is correct that this

scheme in a sense makes Amtrak the FRA’s equal—as

opposed to its subordinate—Amtrak cannot promul-

gate the Metrics and Standards without the agency’s

approval. In an important sense, this renders the

delegation effected by § 207 similar to that upheld in

Sunshine Anthracite. There, the Court held that a

delegation was constitutional because the prices set by

the private entity would not be effective unless the

government acted to adopt them. See Sunshine An-

thracite, 310 U.S. at 388, 399, 60 S. Ct. 907. Although

the use of language (“jointly”) that appears to endow

the governmental entity and the private party with

equal responsibility for the promulgation of rules

makes this scheme appear to constitute a more signif-

icant delegation than that upheld in Sunshine Anthra-

cite, that is not necessarily so. In one case, the gov-

ernment acts as a rubber stamp to approve regulations

47a

proposed by a private entity; in the other, the gov-

ernment serves as a coauthor of the regulations and,

absent a circumstance not present here, must approve

them before they have the effect of law. Why is the

latter (the scheme at issue here) a more problematic

delegation than the former (Sunshine Anthracite’s

statutory scheme)?

Of course, as AAR repeatedly emphasizes, the co-

equal roles played by Amtrak and the FRA also entails

that the FRA could not enact the Metrics and Stand-

ards without Amtrak’s approval. Conditioning regu-

lation on a private party’s assent, however, is not con-

stitutionally problematic. See, e.g., Currin v. Wal-

lace, 306 U.S. 1, 15, 59 S. Ct. 379, 83 L. Ed. 441 (1939)

(upholding a statute that provided agency could not

take particular action unless two-thirds of industry

participants favored it). Indeed, the Supreme Court

has reasoned that through such schemes the govern-

ment “merely place[s] a restriction upon its own” abil-

ity to regulate. Jd; see also United States v. Rock

Royal Cooperative, 307 U.S. 533, 577, 59 S. Ct. 9938, 83

L. Ed. 1446 (1939) (“requirement of [private party’s]

approval would not be an invalid delegation”); Frame,

885 F.2d at 1127-28.

Looking at the bigger picture, moreover, just as the

FRA remains involved with the Metrics and Stand-

ards’ promulgation, the STB is the entity ultimately

responsible for their enforcement. While AAR’s chal-

lenge is to the delegation of rulemaking authority—not

the delegation of enforcement authority—its papers

repeatedly reference the Metrics and Standards’ en-

forcement and penalties scheme and question the fun-

48a

damental fairness of Amtrak’s role therein. That the

STB retains control over the enforcement mechanisms,

accordingly, merits mention. True, Amtrak has the

power to initiate an investigation by the STB where its

on-time performance falls below 80%. See 49 U.S.C.

§ 24308(f)(1). As in Pittston, however, it is the gov-

ernmental entity (here, the STB) that performs the in-

vestigation and may ultimately impose penalties. See

Pittston, 368 F.3d at 397. Merely granting a private

party the power of referral—a power, as it happens,

that the freight railroads also possess, see 49 U.S.C.

§ 24308(f)(1)—does not pose a constitutional problem.

See Pittston, 368 F.3d at 397.

All that said, Plaintiff may ultimately be correct

that Amtrak plays a larger role in the promulgation of

rules under § 207 than the private entities did in the

cases on which Defendants rely. Under § 207, the

FRA retains equal responsibility for the promulgation

of the Metrics and Standards and the STB, not Am-

trak, has the ultimate power to enforce them. But,

the involvement of the FRA and the STB notwith-

standing, the statute’s choice of the word “jointly”

undoubtedly makes it difficult to characterize Am-

trak’s role as “subordinate[],” Sunshine Anthracite,

310 U.S. at 399, 60 S. Ct. 907, or merely “advisory.”

Pittston, 368 F.3d at 398; Frame, 885 F.2d at 1129. If

the FRA and STB’s involvement were the sum total of

the government’s control, accordingly, this may have

been a more difficult. question.

That, however, that is not the case. While the

Court assumed for purposes of this discussion that

Amtrak is technically a private entity, that does not

49a

mean it assumes away the facts on the ground. The

Court hardly need reiterate the indicia of the govern-

ment’s control over Amtrak that it discussed in Section

III.A, supra, but, in brief: Amtrak was created by

special law for the furtherance of governmental objec-

tives, and the government sets its goals; the President

appoints eight of the nine directors; Amtrak is re-

quired to submit annual reports to Congress and the

President; the government owns more than 90% of

Amtrak’s stock; Amtrak relies on more than a billion

dollars in congressional appropriations annually; and

Congress sets salary limits for Amtrak’s employees.

While Congress has declared that Amtrak is to be op-

erated as a “for-profit corporation” and should not

be considered “a department, agency, or instrumental-

ity of the United States Government,” 49 U.S.C.

§ 24301(a), the government clearly retains control of

the organization. Cf Frame, 885 F.2d at 1128-29

(considering government’s structural controls over the

private entity as relevant to nondelegation claim); see

also Lebron, 513 U.S. at 397-400, 115 S. Ct. 961.

Taken together, the involvement of the FRA in

promulgating the regulations, the role of the STB in

their enforcement, and the government’s structural

control over Amtrak itself more than suffice. That an

entity that shares some characteristics with private

corporations is involved in the rulemaking process

does not offend the separation-of-powers principle.

In the end, § 207 establishes a scheme in which gov-

ernment entities retain control over an entity that,

even if technically private, is itself controlled by the

government. The Constitution requires no more.

50a

IV. Conclusion

For the foregoing reasons, the Court will issue a

contemporaneous Order granting Plaintiffs’ Motion for

Summary Judgment and denying Defendant’s.

5la

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Case No. 12-5204

ASSOCIATION OF AMERICAN RAILROADS, APPELLANT

Vv.

UNITED STATES DEPARTMENT OF TRANSPORTATION,

ET AL., APPELLEES

[Filed: Oct. 11, 2013]

ORDER

Before: GARLAND, Chief Judge; HENDERSON, ROG-

ERS, TATEL, BROWN, GRIFFITH, KAVANAUGH, and

SRINIVASAN, Circuit Judges

Appellees’ petition for rehearing en banc and the

response thereto were circulated to the full court, and

a vote was requested. Thereafter, a majority of the

judges eligible to participate did not vote in favor of

the petition. Upon consideration of the foregoing, it

ORDERED that the petition be denied.

BY:

52a

FOR THE COURT:

Mark J. Langer, Clerk

/s/

Jennifer M. Clark

Deputy Clerk

53a

APPENDIX D

1, 49 U.S.C. 24101 note (Supp. V 2011) provides in

pertinent part:

AMTRAK REFORM AND OPERATIONAL IMPROVEMENTS

Pub. L. 110-432, div. B, title II, §§ 203-209, Oct. 16,

2008, 122 Stat. 4912-4917, provided that:

. * * * *

“SEC. 207. METRICS AND STANDARDS.

“(a) IN GENERAL.—Within 180 days after the date

of enactment of this Act [Oct. 16, 2008], the Federal

Railroad Administration and Amtrak shall jointly, in

consultation with the Surface Transportation Board,

rail carriers over whose rail lines Amtrak trains oper-

ate, States, Amtrak employees, nonprofit employee

organizations representing Amtrak employees, and

groups representing Amtrak passengers, as appropri-

ate, develop new or improve existing metrics and mini-

mum standards for measuring the performance and

service quality of intercity passenger train operations,

including cost recovery, on-time performance and min-

utes of delay, ridership, on-board services, stations, fa-

cilities, equipment, and other services. Such metrics,

at a minimum, shall include the percentage of avoid-

able and fully allocated operating costs covered by

passenger revenues on each route, ridership per train

mile operated, measures of on-time performance and

delays incurred by intercity passenger trains on the

rail lines of each rail carrier and, for long-distance

routes, measures of connectivity with other routes in

54a

all regions currently receiving Amtrak service and the

transportation needs of communities and populations

that are not well-served by other forms of intercity

transportation. Amtrak shall provide reasonable ac-

cess to the Federa! Railroad Administration in order

to enable the Administration to carry out its duty

under this section.

“(b) QUARTERLY REPORTS.—The Administrator of

the Federal Railroad Administration shall collect the

necessary data and publish a quarterly report on the

performance and service quality of intercity passenger

train operations, including Amtrak’s cost recovery,

ridership, on-time performance and minutes of delay,

causes of delay, on-board services, stations, facilities,

equipment, and other services.

“(c) CONTRACTS WITH HosT RAIL CARRIERS.—To

the extent practicable, Amtrak and its host rail carri-

ers shall incorporate the metrics and standards devel-

oped under subsection (a) into their access and service

agreements.

“(d) ARBITRATION.—If the development of the

metrics and standards is not completed within the 180-

day period required by subsection (a), any party in-

volved in the development of those standards may

petition the Surface Transportation Board to appoint

an arbitrator to assist the parties in resolving their

disputes through binding arbitration.

* * + * *

55a

2. 49 U.S.C. 24301 provides in pertinent part:

Status and applicable laws

(a) STATUS.—Amtrak—

(1) is a railroad carrier under section 20102(2)'

and chapters 261 and 281 of this title;

(2) shall be operated and managed as a for-

profit corporation; and

(3) is not a department, agency, or instrumen-

tality of the United States Government, and shall

not be subject to title 31.

(b) PRINCIPAL OFFICE AND PLACE OF BUSINESS.—

The principal office and place of business of Amtrak

are in the District of Columbia. Amtrak is qualified to

do business in each State in which Amtrak carries out

an activity authorized under this part. Amtrak shall

accept service of process by certified mail addressed to

the secretary of Amtrak at its principal office and

place of business. Amtrak is a citizen only of the Dis-

trict of Columbia when deciding original jurisdiction of

the district courts of the United States in a civil action.

this title shall not apply to Amtrak, except for sections

11123, 11801, 11322(a), 11502, and 11706. Notwithstan-

ding the preceding sentence, Amtrak shall continue to

be considered an employer under the Railroad Retire-

' So in original. Does not conform to section catchline.

56a

ment Act of 1974, the Railroad Unemployment Insur-

ance Act, and the Railroad Retirement Tax Act.

(d) APPLICATION OF SAFETY AND EMPLOYEE RE-

LATIONS LAWS AND REGULATIONS.—Laws and regula-

tions governing safety, employee representation for

collective bargaining purposes, the handling of dis-

putes between carriers and employees, employee re-

tirement, annuity, and unemployment systems, and

other dealings with employees that apply to a rail car-

rier subject to part A of subtitle IV of this title apply

to Amtrak.

(e) APPLICATION OF CERTAIN ADDITIONAL LAWS.

—Section 552 of title 5, this part, and, to the extent

consistent with this part, the District of Columbia

Business Corporation Act (D.C. Code § 29-301 et seq.)

apply to Amtrak. Section 552 of title 5, United States

Code, applies to Amtrak for any fiscal year in which

Amtrak receives a Federal subsidy.

* * * + *

8. 49 U.S.C. 24302 (Supp. V 2011) provides:

Board of directors

(a) COMPOSITION AND TERMS.—

(1) The Amtrak Board of Directors (referred to

in this section as the “Board”) is composed of the

following 9 directors, each of whom must be a citizen

of the United States:

(A) The Secretary of Transportation.

57a

(B) The President of Amtrak.

of the United States, by and with the advice and

consent of the Senate, with general business and

financial experience, experience or qualifications

in transportation, freight and passenger rail

transportation, travel, hospitality, cruise line, or

passenger air transportation businesses, or rep-

resentatives of employees or users of passenger

rail transportation or a State government.

(2) In selecting individuals described in para-

graph (1) for nominations for appointments to the

Board, the President shall consult with the Speaker

of the House of Representatives, the minority leader

of the House of Representatives, the majority leader

of the Senate, and the minority leader of the Senate

and try to provide adequate and balanced represen-

tation of the major geographic regions of the United

States served by Amtrak.

(3) An individual appointed under paragraph

(1)(C) of this subsection shall be appointed for a

term of 5 years. Such term may be extended until

the individual’s successor is appointed and qualified.

Not more than 5 individuals appointed under para-

graph (1)(C) may. be members of the same political

party.

(4) The Board shall elect a chairman and a vice

chairman, other than the President of Amtrak, from

among its membership. The vice chairman shall

serve as chairman in the absence of the chairman.

58a

(5) The Secretary may be represented at Board

meetings by the Secretary’s designee.

(b) PAY AND EXPENSES.—Each director not em-

ployed by the United States Government or Amtrak is

entitled to reasonable pay when performing Board

duties. Each director not employed by the United

States Government is entitled to reimbursement from

Amtrak for necessary travel, reasonable secretarial

and professional staff support, and subsistence expen-

ses incurred in attending Board meetings.

the United States Government shall be subject to the

same travel and reimbursable business travel expense

policies and guidelines that apply to Amtrak’s execu-

tive management when performing Board duties.

(2) Not later than 60 days after the end of each fis-

cal year, the Board shall submit a report describing all

travel and reimbursable business travel expenses paid

to each director when performing Board duties to the

Committee on Transportation and Infrastructure of

the House of Representatives and the Committee on

Commerce, Science, and Transportation of the Senate.

(3) The report submitted under paragraph (2) shall

include a detailed justification for any travel or reim-

bursable business travel expense that deviates from

Amtrak’s travel and reimbursable business travel ex-

pense policies and guidelines.

(d) VACANCIES.—A vacancy on the Board is filled in

the same way as the original selection, except that an

individual appointed by the President of the United

59a

States under subsection (a)(1)(C) of this section to fill a

vacancy occurring before the end of the term for which

the predecessor of that individual was appointed is

appointed for the remainder of that term. A vacancy

required to be filled by appointment under subsection

(a)(1)(C) must be filled not later than 120 days after

the vacancy occurs.

(e) QUORUM.—A majority of the members serving

shall constitute a quorum for doing business.

(f) BYLAWS.—The Board may adopt and amend by-

laws governing the operation of Amtrak. The bylaws

shall be consistent with this part and the articles of

incorporation.

4. 49 U.S.C. 24303 provides:

Officers

(a) APPOINTMENTS AND TERMS.—Amtrak has a

President and other officers that are named and ap-

pointed by the board of directors of Amtrak. An of-

ficer of Amtrak must be a citizen of the United States.

Officers of Amtrak serve at the pleasure of the board.

(b) PAy.—The board may fix the pay of the officers

of Amtrak. An officer may not be paid more than the

general level of pay for officers of rail carriers with

comparable responsibility. The preceding sentence

shall not apply for any fiscal year for which no Federal

assistance is provided to Amtrak.

60a

Amtrak, an officer may not have a financial or employ-

ment relationship with another rail carrier, except that

holding securities issued by a rail carrier is not

deemed to be a violation of this subsection if the officer

holding the securities makes a complete public dis-

closure of the holdings and does not participate in any

decision directly affecting the rail carrier.

5. 49 U.S.C. 24308 (2006 & Supp. V 2011) provides:

Use of facilities and providing services to Amtrak

(a) GENERAL AUTHORITY.—{1) Amtrak may make

an agreement with a rail carrier or regional transpor-

tation authority to use facilities of, and have services

provided by, the carrier or authority under terms on

which the parties agree. The terms shall include a

penalty for untimely performance.

(2)(A) if the parties cannot agree and if the Sur-

face Transportation Board finds it necessary to carry

out this part, the Board shall—

(i) order that the facilities be made available

and the services provided to Amtrak; and

(ii) prescribe reasonable terms and compensa-

tion for using the facilities and providing the ser-

vices.

(B) When prescribing reasonable compensation

under subparagraph (A) of this paragraph, the Board

shall consider quality of service as a major factor when

6la

determining whether, and the extent to which, the

amount of compensation shall be greater than the in-

cremental costs of using the facilities and providing

the services.

than 90 days after Amtrak submits the dispute to the

Board.

(3) Amtrak’s right to use the facilities or have the

services provided is conditioned on payment of the

compensation. If the compensation is not paid

promptly, the rail carrier or authority entitled to it

may bring an action against Amtrak to recover the

amount owed.

(4) Amtrak shall seek immediate and appropriate

legal remedies to enforce its contract rights when

track maintenance on a route over which Amtrak oper-

ates falls below the contractual standard.

(b) OPERATING DURING EMERGENCIES.—To facili-

tate operation by Amtrak during an emergency, the

Board, on application by Amtrak, shall require a rail

carrier to provide facilities immediately during the

emergency. The Board then shall promptly prescribe

reasonable terms, including indemnification of the car-

rier by Amtrak against personal injury risk to which

the carrier may be exposed. The rail carrier shall

provide the facilities for the duration of the emergen-

cy.

TION.—Except in an emergency, intercity and com-

muter rail passenger transportation provided by or for

62a

Amtrak has preference over freight transportation in

using a rail line, junction, or crossing unless the Board

orders otherwise under this subsection. A rail carrier

affected by this subsection may apply to the Board for

relief. If the Board, after an opportunity for a hear-

ing under section 553 of title 5, decides that preference

for intercity and commuter rail passenger transporta-

tion materially will lessen the quality of freight trans-

portation provided to shippers, the Board shall estab-

lish the rights of the carrier and Amtrak on reasonable

terms.

(d) ACCELERATED SPEEDS.—If a rail carrier re-

fuses to allow accelerated speeds on trains operated by

or for Amtrak, Amtrak may apply to the Board for an

order requiring the carrier to allow the accelerated

speeds. The Board shall decide whether accelerated

speeds are unsafe or impracticable and which improve-

ments would be required to make accelerated speeds

safe and practicable. After an opportunity for a

hearing, the Board shall establish the maximum allow-

able speeds of Amtrak trains on terms the Board de-

cides are reasonable.

(e) ADDITIONAL TRAINS.—(1) When a rail carrier

does not agree to provide, or allow Amtrak to provide,

for the operation of additional trains over a rail line of

the carrier, Amtrak may apply to the Board for an

order requiring the carrier to provide or allow for the

operation of the requested trains. After a hearing on

the record, the Board may order the carrier, within 60

days, to provide or allow for the operation of the re-

quested trains on a schedule based on legally permis-

sible operating times. However, if the Board decides

63a

not to hold a hearing, the Board, not later than 30 days

after receiving the application, shall publish in the

Federal Register the reasons for the decision not to

hold the hearing.

(2) The Board shall consider—

(A) when conducting a hearing, whether an or-

der would impair unreasonably freight transporta-

tion of the rail carrier, with the carrier having the

burden of demonstrating that the additional trains

will impair the freight transportation; and

(B) when establishing scheduled running times,

the statutory goal of Amtrak to ‘mplement sched-

ules that attain a system-wide average speed of at

least 60 miles an hour that can be adhered to with a

high degree of reliability and passenger comfort.

(3) Unless the parties have an agreement that es-

tablishes the compensation Amtrak will pay the carrier

for additional trains provided under an order under

this subsection, the Board shall decide the dispute

under subsection (a) of this section.

(f) PASSENGER TRAIN PERFORMANCE AND OTHER

STANDARDS.—

(1) INVESTIGATION OF SUBSTANDARD PERFOR-

MANCE.—If the on-time performance of any inter-

city passenger train averages less than 80 percent

for any 2 consecutive calendar quarters, or the ser-

vice quality of intercity passenger train operations

for which minimum standards are established un-

der section 207 of the Passenger Rail Investment

and Improvement Act of 2008 fails to meet those

64a

standards for 2 consecutive calendar quarters, the

Surface Transportation Board (referred to in this

section as the “Board”) may initiate an investiga-

tion, or upon the filing of a complaint by Amtrak,

an intercity passenger rail operator, a host freight

railroad over which Amtrak operates, or an entity

for which Amtrak operates intercity passenger rail

service, the Board shall initiate such an investiga-

tion, to determine whether and to what extent de-

lays or failure to achieve minimum standards are

due to causes that could reasonably be addressed

by a rail carrier over whose tracks the intercity

passenger train operates or reasonably addressed

by Amtrak or other intercity passenger rail opera-

tors. As part of its investigation, the Board has

authority to review the accuracy of the train per-

formance data and the extent to which scheduling

and congestion contribute to delays. In making its

determination or carrying out such an investiga-

tion, the Board shall obtain information from all

parties involved and identify reasonable measures

and make recommendations to improve the service,

quality, and on-time performance of the train.

(2) PROBLEMS CAUSED BY HOST RAIL CARRIER.

—If the Board determines that delays or failures to

achieve minimum standards investigated under

paragraph (1) are attributable to a rail carrier’s

failure to provide preference to Amtrak over

freight transportation as required under subsection

(c), the Board may award damages against the host

rail carrier, including prescribing such other relief

to Amtrak as it determines to be reasonable and

65a

appropriate pursuant to paragraph (3) of this sub-

section.

(3) DAMAGES AND RELIEF.—In awarding dam-

ages and prescribing other relief under this sub-

section the Board shall consider such factors as—

(A) the extent to which Amtrak suffers fi-

nancial loss as a result of host rail carrier delays

or failure to achieve minimum standards; and

(B) what reasonable measures would ade-

quately deter future actions which may reason-

ably be expected to be likely to result in delays

to Amtrak on the route involved.

(4) USE OF DAMAGES.—The Board shall, as it

deems appropriate, order the host rail carrier to

remit the damages awarded under this subsection

to Amtrak or to an entity for which Amtrak oper-

ates intercity passenger rail service. Such damages

shall be used for capital or operating expenditures

on the routes over which delays or failures to

achieve minimum standards were the result of a

rail carrier’s failure to provide preference to Am-

trak over freight transportation as determined in

accordance with paragraph (2).

6. 49 U.S.C. 24710 (Supp. V 2011) provides:

Long-distance routes

(a) ANNUAL EVALUATION.—Using the financial and

performance metrics developed under section 207 of

66a

the Passenger Rail Investment and Improvement Act

of 2008, Amtrak shall—

(1) evaluate annually the financial and operat-

ing performance of each long-distance passenger

rail route operated by Amtrak; and

(2) rank the overall performance of such routes

for 2008 and identify each long-distance passenger

rail route operated by Amtrak in 2008 according to

its overall performance as belonging to the best

performing third of such routes, the second best

performing third of such routes, or the worst per-

forming third of such routes.

(b) PERFORMANCE IMPROVEMENT PLAN.—Amtrak

shall develop and post on its website a performance

improvement plan for its long-distance passenger rail

routes to achieve financial and operating improve-

ments based on the data collected through the appli-

cation of the financial and performance metrics devel-

oped under section 207 of that Act. The plan shall

address—

(1) on-time performance;

(2) scheduling, frequency, routes, and stops;

(3) the feasibility of restructuring service into

connected corridor service;

(4) performance-related equipment changes

and capital improvements;

(5) on-board amenities and service, including

food, first class, and sleeping car service;

67a

(6) State or other non-Federal financial contri-

butions;

(7) improving financial performance;

(8) anticipated Federal funding of operating

and capital costs; and

(9) other aspects of Amtrak’s long-distance

passenger rail routes that affect the financial, com-

petitive, and functional performance of service on

Amtrak’s long-distance passenger rail routes.

the performance improvement plan developed under

subsection (b)—

(1) beginning in fiscal year 2010 for those routes

identified as being in the worst performing third

under subsection (a)(2);

(2) beginning in fiscal year 2011 for those routes

identified as being in the second best performing

third under subsection (a)(2); and

(3) beginning in fiscal year 2012 for those routes

identified as being in the best performing third

under subsection (a)(2).

(d) ENFORCEMENT.—The Federal Railroad Admin-

istration shall monitor the development, imple-

mentati

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