Supreme Court Action on Freight Delays?

The Justice Dept. has advised the Supreme Court that it does not “at this time” support review of the Association’s on-time performance case, but at the same time mostly agreed with our position on the merits of our claim – which leaves the door open for the Court to hold our petitions until a federal appeals court rules on metrics and standards issues in a related case filed by the American Association of Railroads.

The office of the Solicitor General – the third-ranking official in the Justice Dept. and the federal government’s designated attorney for arguments before the Supreme Court – filed a brief opposing the request by Amtrak and a coalition of rail-passenger advocates led by Rail Passengers Association for the Supreme Court to hear our case through a process known as petitioning for a “writ of certiorari.” Rail Passengers Association filed its cert petition, through its counsel and partner the Environmental Law and Policy Center, on November 10, which would have paved the way for enforcement of on-time performance standards for passenger rail.

“It’s a disappointing delay,” said Rail Passengers Association President Jim Mathews, “but by agreeing on the merits of our case and supporting our alternate suggestion that the petitions be held until a later date, the Solicitor General created some space in which passengers’ rights may yet see vindication in the Supreme Court.”

The Solicitor General has tremendous sway over the cert process. Each year the Court grants review to only between 75 and 125 of the more than 7,500 petitions submitted each term, but when the Solicitor General supports a cert petition it is very often granted. Likewise, in this instance, it’s likely the Court will choose not to hear our case at this time.

Even so, the Trump Administration’s Solicitor General told the Court that “the government does not oppose petitioners’ alternative suggestion (17-699 Pet. 32-33) that the petitions be held pending the D.C. Circuit’s resolution of Association of American Railroads.”

More important, the Solicitor General agreed with the core claims at the heart of our case: that the prior courts erred in gutting the protections of the 2008 Passenger Rail Investment and Improvement Act (PRIIA) and that STB can set and enforce standards to protect rail passengers.

“The government agrees with petitioners that Section 213, properly construed, authorizes the STB to develop a standard through rulemaking for ‘on-time performance’ as one of two statutory triggers under 49 U.S.C. 24308(f )(1). As petitioners explain (17-699 Pet. 20), that construction of Section 213 is most consistent with ‘PRIIA’s text, structure, and purposes.’ See 17-699 Pet. 20-31; 17-714 Pet. 10-12,” the Solicitor General said in its brief.

“The Eighth Circuit’s decision to invalidate the STB’s final rule based on a contrary reading of Section 213 was erroneous,” the brief continued. “That decision, in combination with the D.C. Circuit’s decision striking down on constitutional grounds the metrics and standards established under Section 207, leaves a significant gap in the scheme Congress created by enacting PRIIA, thereby threatening the quality of passenger rail service nationwide. See 17-699 Pet. 15-18.”

Your Association has been arguing since the rulings last summer that the appeals courts’ decisions thwarted Congress’ core intent in PRIIA, leaving passengers without any recourse, and Rail Passengers Association is gratified to see that the Justice Dept.’s third-ranking official recognizes this fact.

"When the DC Circuit nullified Section 207 last year, it took away FRA’s power to develop on-time performance standards. Then the Eighth Circuit this summer interpreted Section 213 in a way that eviscerated the power of the Surface Transportation Board, which was the only agency left to carry out Congress’ assignment to improve on-time performance,” Mathews said. “The two courts’ moves together have left no agency remaining to fulfill Congress’ statutory mandate in PRIIA to enforce those standards.”

For decades, rail passengers have been left waiting for freight trains to clear the rails. Even acts of Congress haven’t been able to budge them out of the way.

“We need the courts to now recognize and allow Congress’ goal to be carried out,” Mathews continued. “The law creating Amtrak in the early 1970s codified a deal these railroads made with the American taxpayer: we’ll relieve you of your common-carrier responsibility for passenger service, and in exchange you’ll ensure those passenger trains get where they need to go on time. It has been a battle ever since.”