United States Court of Appeals, District of Columbia Circuit
Argued September 22, 2014.
On Petition for Review of Orders of the Surface Transportation Board.
Paul A. Hemmersbaugh argued the cause for petitioner. With him on the briefs were G. Paul Moates, Matthew J. Warren, Peter J. Shudtz, Paul R. Hitchcock, and John P. Patelli.
Theodore L. Hunt, Attorney, Surface Transportation Board, argued the cause for respondents. With him on the brief were William J. Baer, Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson, Nickolai G. Levin, and Daniel E. Haar, Attorneys, Craig M. Keats, General Counsel, Surface Transportation Board, and James A. Read, Attorney.
Jeffrey O. Moreno and David E. Benz were on the brief for intervenor Total Petrochemicals & Refining USA, Inc. in support of respondents.
Circuit Judge, EDWARDS, Senior Circuit Judge, and GINSBURG, Senior Circuit
Edwards, Senior Circuit Judge:
The Surface Transportation Board (" STB" or " Board" ) has exclusive jurisdiction over interstate rail transportation, including the power to review and modify railroad rates to ensure that they are reasonable. 49 U.S.C. § § 10501, 10701, 10707. However, the Board can only examine the reasonableness of a rail carrier's rate if it determines that the railroad has " market dominance" over the transportation route to which the rate applies. Id. § § 10707(b), (d). A railroad has market dominance over a route in the " absence of effective competition from other rail carriers or modes of transportation." Id. § 10707(a).
On May 3, 2010, Total Petrochemicals & Refining USA, Inc. (" TPI" ) filed a rate complaint with the STB, alleging that numerous CSX Transportation (" CSX" ) common carrier rates were unreasonable. CSX moved for an expedited procedure with respect to questions related to market dominance. The Board granted the motion and bifurcated the adjudication into two phases -- a market dominance phase and a second rate reasonableness phase. On May 31, 2013, the Board issued a decision, concluding that CSX had market dominance over 51 contested rates. On December 19, 2013, the Board rejected requests for reconsideration. CSX immediately sought review by this court of the Board's interlocutory ruling regarding the 51 rates with respect to which CSX was found to have market dominance.
The Board contends that this action should be dismissed because the contested market dominance decision is merely an interlocutory, non-final order. In response, CSX asserts that the Board's decision is a final order that is subject to review by this court because the decision concludes the agency's market dominance decisionmaking process. The railroad also argues that the decision is reviewable independent of finality because in determining market dominance the Board adopted a new legislative rule without notice and comment. The Board has the better of both arguments.
Under the Hobbs Act, 28 U.S.C. § 2342, this court has jurisdiction to review only " final" orders of the Board. " Finality under the Hobbs Act is to be narrowly construed." Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n, 668 F.3d 747, 753, 399 U.S.App.D.C. 202 (D.C. Cir. 2012) (citation and internal quotation marks omitted). In an administrative adjudication, a final order typically " disposes of all issues as to all parties." Id. (citation omitted). There is no final order here because the Board has yet to inquire into the reasonableness of CSX's rates and has issued no adverse ruling with respect to any rate. That the STB acceded to CSX's request to bifurcate the adjudication does not change the fact that the decision in question is merely an interlocutory order issued in a matter that is still presently pending before the Board. And there is no exception to the final order rule for petitioners who allege that an agency has adopted a new legislative rule during the course of an adjudication without notice and comment. This is a ...