United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 27, 1997 Decided January 6, 1998
No. 97-1027
United Transportation Union-Illinois Legislative Board,
Petitioner
v.
Surface Transportation Board and
United States of America,
Respondents
Association of American Railroads,
Intervenor
On Petition for Review of Orders of the
Surface Transportation Board
Gordon P. MacDougall argued the cause and filed the
briefs for petitioners.
Thomas J. Stilling, Attorney, Surface Transportation
Board, argued the cause for respondents, with whom Joel I.
Klein, Assistant Attorney General, U.S. Department of Jus-
tice, John J. Powers, III, and Robert J. Wiggers, Attorneys,
Henri F. Rush, General Counsel, Surface Transportation
Board, Ellen D. Hanson, Deputy General Counsel, and Mi-
chael Martin, Trial Attorney, were on the brief. Craig M.
Keats, Associate General Counsel, entered an appearance.
Before: Ginsburg, Sentelle, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: The United Transportation
Union-Illinois Legislative Board challenges a recently
adopted rule of the Surface Transportation Board requir-
ing parties that submit pleadings of 20 or more pages or
computer-generated spreadsheets also submit a computer
diskette containing the document. The UTU also objects to
the STB's long-standing rules and policies regarding public
access to transcripts and to pleadings and correspondence
from docket files. We deny the UTU's petition because (1)
the disk requirement is neither arbitrary and capricious nor
unconstitutional, and (2) the UTU's other challenge is untime-
ly under the Hobbs Act.
I. Background
In the ICC Termination Act of 1995, Pub. L. No. 104-88,
109 Stat. 803, the Congress abolished the Interstate Com-
merce Commission, created the STB, and transferred some of
the ICC's responsibilities to the STB. At the same time the
Congress declared that the rail transportation policy of the
United States is in part "to provide for the expeditious
handling and resolution of all proceedings" before the STB.
49 U.S.C. s 10101(15). Accordingly, the Congress set time
limits for the STB to decide certain types of proceedings,
including exemption and revocation cases, see id. s 10502(b),
and cases involving the reasonableness of a rate, see id.
s 10704(c). In addition, the Congress specifically directed
the STB to "establish procedures to ensure expeditious han-
dling of challenges to the reasonableness of railroad rates."
Id. s 10704(d).
In furtherance of these mandates the STB in March 1996
solicited comments upon how the procedural regulations it
inherited from the ICC could be modified to expedite pro-
ceedings before the STB. Expedited Procedures for Process-
ing Rail Rate Reasonableness, Exemption and Revocation
Proceedings (Advance Notice of Proposed Rulemaking), 61
Fed. Reg. 11,799, 11,799 (1996). After receiving comments
the STB proposed, among other things, to amend 49 C.F.R.
s 1104.3 by adding a requirement that parties submit three
copies of IBM-compatible disks or QIC-80 tapes for "[t]extual
submissions of 20 or more pages" (in WordPerfect 5.1 format)
and "[a]ll electronic spreadsheets" (in LOTUS 1-2-3 release 5
or earlier format). Expedited Procedures for Processing Rail
Rate Reasonableness, Exemption and Revocation Proceed-
ings (Notice of Proposed Rulemaking), 61 Fed. Reg. 39,110,
39,111 (1996). In the preamble to the NPRM, which was not
published in the Federal Register, the STB explained that the
disk requirement would "help [it] process cases more quickly"
because the agency staff could "search documents electroni-
cally for particular issues or arguments." In response to the
UTU's previously expressed concern about public access to
the disks, the STB explained that "the information stored on
computer diskettes is not the official record; the official
record consists of the original paper documents filed with the
Board, to which the public will have access."
In response to the NPRM the UTU again objected to the
disk rule. The UTU claimed that the rule would impose a
hardship upon railroad employees because they "do not pre-
pare their pleadings on instruments capable of producing a
diskette." The UTU also complained that the disks would
not be available to the public because there was no proposal
to put a computer terminal in the STB reading room. In
response to the STB's statement that the public has access to
the paper version of all pleadings, the UTU argued that "the
public does not have equal access to filings with the agency"
because transcripts are not available to the public, and plead-
ings and correspondence are not available to the public "on a
timely basis."
In the (unpublished) preamble to its Final Rule document,
see 61 Fed. Reg. 52,710 (1996), the STB said that it was
adopting the disk rule because it would "simplif[y] the task of
reviewing and analyzing voluminous records." The agency
also pointed out, however, that any party upon whom the rule
imposed a hardship "may seek a waiver in a particular case."
In addition, the STB adopted the suggestion of the Associa-
tion of American Railroads that each party be required to
serve a copy of its disk upon all other parties, noting that
"[t]his requirement also addresses UTU's suggestion that
diskettes should be made available to other parties." Finally,
the STB termed "baseless" the UTU's complaints regarding
the public availability of transcripts and pleadings:
[A]s provided by our regulations, transcripts are always
available for inspection, although they cannot be copied,
but rather must be purchased from the court report-
er.... [A]fter being filed, pleadings are always avail-
able for inspection, either in paper form or on microfiche,
from the Secretary's office.
The UTU petitioned for a stay and to reopen the rule, on
the grounds that the disk rule would deprive railroad employ-
ees of the opportunity to participate in STB proceedings and
that the STB had failed sufficiently to justify the rule. The
UTU argued that there was insufficient access to documents
listed in the public docket and contended that the Board
should provide a public computer terminal, as a corollary to
the disk rule, in order to facilitate such access. The UTU
also complained that the STB had changed its policy regard-
ing transcripts and was no longer making them available to
the public. Another commentator, the National Industrial
Transportation League, also requested that the STB reopen
the rulemaking, for its part on the ground that, because some
ratemaking cases involve hundreds of parties, service of disks
should be required only when another party so requests, and
then only "if possible."
In response to these petitions the STB stayed the effective
date of the new rule, see 61 Fed. Reg. 57,339, and thereafter
issued a modified Final Rule, id. at 58,490. In the preamble
(again unpublished) the STB reiterated its belief that the rule
is justified because it permits the agency staff to perform
word searches. The STB rejected the UTU's argument that
requesting a waiver would be impractical because the ruling
would come after the due date for filing the pleading; the
STB said it will rule upon a waiver request even after the due
date. The STB also adopted the NITL's suggested modifica-
tion requiring that any disk submitted to the Board "if
possible, be provided to any other party requesting a copy."
The STB rejected the UTU's complaints regarding the
public availability of transcripts, pleadings, and correspon-
dence. The agency stated that although the microfilm ver-
sion of a pleading may not be available for several weeks, the
paper version is immediately available in the public docket
room and it may be copied. The STB also indicated that its
contract with the court reporter precludes it from making
transcripts of agency proceedings available for copying. The
STB noted that raw transcripts are available for inspection,
although not for copying, and within days one may purchase a
copy from the court reporter. Alternatively, one may make a
copy once the final transcript is available on microfilm.
The UTU petitioned for review of the disk rule, and the
AAR intervened in support of the STB.
II. Analysis
The UTU argues that both the disk rule and the STB's
policy regarding the public availability of transcripts, plead-
ings, and correspondence are arbitrary and capricious within
the condemnation of the Administrative Procedure Act. 5
U.S.C. s 706(2)(A). The UTU also contends that the disk
rule denies it due process, in violation of the Fifth Amend-
ment of the Constitution of the United States. We conclude
that the disk rule is neither arbitrary and capricious nor
unconstitutional. We also hold that the UTU's challenge to
the Board's policies concerning public access to pleadings,
transcripts, and correspondence is untimely under the Hobbs
Act.
A. The Disk Rule
The STB's disk rule is eminently reasonable. Requiring
parties to submit lengthy pleadings and computer-generated
spreadsheets on disks permits the STB staff to use a comput-
er to search those documents for key information. The use of
this widely available technology enhances the efficiency and
effectiveness of the STB's operations. In addition, the rule
permits any party to request a copy of any other party's disk,
which will facilitate the participation of those who are most
interested in a particular proceeding. Although the disk rule
is more general in application, it also serves in part to comply
with the directive of the Congress to "establish procedures to
ensure expeditious handling of challenges to the reasonable-
ness of railroad rates." 49 U.S.C. s 10704(d).
The disk rule is unlikely to impose a significant burden
upon any party appearing before the STB. First, the paper
version of every document, to which the public has ready
access, remains the official version; the disk will contain no
more informationCand in some cases lessCthan the paper
version. Therefore, an interested person who does not have a
computer will still have access to the official record and to all
the information therein, as at present. Second, if submitting
a disk does impose a hardship upon a party, then it may
obtain a waiver of the rule. See 49 C.F.R. ' 1110.9 (general
waiver rule).
The UTU's objections to the disk rule are insubstantial.
First, the UTU complains that the disks are unavailable to
the public (and presumably to non-parties in particular): the
STB has refused to provide a computer terminal so as to give
the public access to the same technology as the agency staff;
and access to the paper version alone is insufficient because it
does not permit the public to perform the same searches as
the STB staff. The UTU, however, can point to no legal
requirement that an agency provide either the general public
(or even just the parties appearing before it) with access to
technology equal to that of the agency's staff. Because the
STB permits public access to the paper documents, which
include everything stored on the disks, its failure to provide
public access to the disks themselves is not arbitrary and
capricious.
Second, the UTU complains that the waiver rule denies due
process to the union and to rail employees who do not have
the necessary computer equipment or expertise to submit a
disk to the Board in proceedings to which they are parties.
The UTU contends that the due date for a pleading would
generally pass before the STB could rule upon a request that
it waive the disk rule. As noted above, however, the STB
stated in the preamble to the modified final rule that if a
party submits its waiver request along with the paper version
of its pleading, then the STB will rule upon the request even
after the due date. We do not doubt, therefore, that the
availability of the waiver provision adequately protects a
party for whom compliance with the rule would be burden-
some.
Third, the UTU contends that the STB acted arbitrarily
and capriciously when, upon reconsideration, it dropped the
mandatory service requirement from the disk rule. Accord-
ing to the UTU only that requirement had "ameliorate[d] the
unfairness" of the rule by making all disks available to all
parties. The STB reasonably concluded, however, that the
mandatory service requirement would be unnecessarily "bur-
densome because in some proceedings there are hundreds of
parties on the service list." Under the modified final rule,
those parties that want a disk submitted by another party
may request and if possible receive one.
Finally, the UTU claims that the disks should be available
under the Freedom of Information Act. In response the STB
directs our attention to the recently enacted Electronic Free-
dom of Information Act Amendments of 1996, Pub. L. No.
104-231, 110 Stat. 3049. The E-FOIA amended the defini-
tion of "record" in the FOIA to include a record maintained in
"an electronic format," id. s 3, 110 Stat. at 3049 (codified at 5
U.S.C. s 552(f)(2)), and added a requirement that the agency
make a record available to the public "in any form or format
requested by the person if the record is readily reproducible
by the agency in that form or format," Pub. L. No. 104-231,
s 5, 110 Stat. at 3050 (codified at 5 U.S.C. s 552(a)(3)(B)).
Accordingly, counsel for the STB informed the court that the
STB will, upon request, provide a copy of any disk for a
standard fee and within the time limits prescribed by the
FOIA. The UTU's argument that the disk rule violates the
FOIA is therefore moot.
B. Transcripts, Pleadings, and Correspondence
We do not reach the merits of the UTU's contention that
the STB's rules and policies regarding the public availability
of transcripts, pleadings, and correspondence are arbitrary
and capricious. These rules and policies were carried over
from the ICC and were not part of the rulemaking initiated
by the STB. Accordingly, the UTU's challenge is untimely.
The Hobbs Act provides that "[a]ny party aggrieved by the
final order [of an agency] may, within 60 days after its entry,
file a petition to review the order in the court of appeals." 28
U.S.C. s 2344. The 60-day period of the Hobbs Act is
"jurisdictional in nature, and may not be enlarged or altered
by the courts." NRDC v. Nuclear Regulatory Comm'n, 666
F.2d 595, 602 (D.C. Cir. 1981). This court has recognized an
exception to statutory limits on the time for seeking review,
however, in circumstances where an agency reopens an issue
explicitly or implicitly in the course of a subsequent rulemak-
ing proceeding. See, e.g., Kennecott Utah Copper Corp. v.
U.S. Dep't of Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996).
An agency does not "reopen" an issue, however, when in
response to comments that are beyond the scope of the
rulemaking it merely reaffirms its prior position.
"The 'reopening' rule of Ohio v. EPA [838 F.2d 1325
(D.C. Cir. 1988) ] is not a license for bootstrap proce-
dures by which petitioners can comment on matters
other than those actually at issue, goad an agency into a
reply, and then sue on the grounds that the agency had
re-opened the issue. To so read Ohio v. EPA would
undermine congressional efforts to secure prompt and
final review of agency decisions."
Massachusetts v. ICC, 893 F.2d 1368, 1372 (D.C. Cir. 1990)
(quoting American Iron & Steel Inst. v. EPA, 886 F.2d 390,
398 (D.C. Cir. 1989)); see also Kennecott Utah Copper, 88
F.3d at 1213.
In the rulemaking under review the STB did not propose to
make changes in the rules and policies governing public
access to transcripts, pleadings, or correspondence. Nor did
the agency request comments upon those rules and policies.
As an initial matter, therefore, the UTU's challenge is un-
timely.
Nor does the reopening doctrine save the UTU's claims, for
the STB did not indicate, even implicitly, that it was reconsid-
ering its policies governing public access to transcripts, plead-
ings, or correspondence. Those policies first surfaced when
the UTU commented upon the observation in the preamble to
the NPRM that all pleadings to be submitted on disk would
also be available in paper form. The STB responded in the
preamble to the Final Rule by referring to its existing
regulations, which permit the public (1) to inspect pleadings,
see 49 C.F.R. s 1001.1(d), and (2) both to inspect transcripts
and to purchase them from the official reporter, see id.
ss 1001.1(d), 1002.1(h). The UTU reiterated its dissatisfac-
tion in petitions to stay and to reopen the Final Rule. The
STB responded again in the preamble to the modified Final
Rule, this time by stating that the public may (1) copy
pleadings, which are in the public docket file, and (2) inspect
transcripts at the offices of the STB, purchase copies from
the official reporter, or obtain copies from the STB once they
are put on microfilm.
In both instances the STB's discussion of its policies and
rules regarding public access to transcripts, pleadings, and
correspondence came only in response to the UTU's unsolicit-
ed comments, and in each the Board merely reiterated its
(and its predecessor's) long-standing policies. The UTU
points to nothing in the record to suggest that the STB
invited comments upon these rules or policies or that it
reconsidered them. Insofar as the UTU claims that the STB
has recently changed its policies regarding public access--
which the agency denies--the Union does so in the wrong
proceeding; in the petition for review now before the court
the UTU challenged only the final rule concerning diskettes.
Because the new rule did not alter the STB's rules or
practices governing public access to transcripts, pleadings, or
correspondence, the UTU's challenge to those policies is
untimely under the Hobbs Act, 28 U.S.C. s 2344.
III. Conclusion
We hold that the STB's new rule requiring parties to
submit a computer disk containing pleadings of 20 pages or
more and computer-generated spreadsheets is not arbitrary
and capricious. We are without jurisdiction to address the
UTU's claims concerning public access to transcripts, plead-
ings, and correspondence because they are untimely under
the Hobbs Act. Accordingly, the petition for review is
Denied.