United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 26, 2007 Decided April 20, 2007
No. 06-1077
AMERICAN ORIENT EXPRESS RAILWAY COMPANY, LLC,
PETITIONER
v.
SURFACE TRANSPORTATION BOARD AND
UNITED STATES OF AMERICA,
RESPONDENTS
UNITED TRANSPORTATION UNION AND
V. M. SPEAKMAN,
INTERVENORS
Consolidated with
06-1080
On Petitions for Review of an Order of the
Surface Transportation Board
Robert Bergen argued the cause and filed the briefs for
petitioner American Orient Express Railway Company, LLC.
Lawrence R. Liebesman and Paul J. Kiernan entered
appearances.
2
Gordon P. MacDougall argued the cause and filed the briefs
for petitioner United Transportation Union-General Committee
of Adjustment.
Craig M. Keats, Deputy General Counsel, Surface
Transportation Board, argued the cause for respondent. With
him on the brief were Thomas O. Barnett, Assistant Attorney
General, U.S. Department of Justice, and Robert B. Nicholson
and John P. Fonte, Attorneys, Ellen D. Hanson, General
Counsel, Surface Transportation Board, and Jamie Palter
Rennert and Jamellah Ellis, Attorneys.
Daniel R. Elliott III was on the brief for intervenor United
Transportation Union.
No. 06-1203
AMERICAN ORIENT EXPRESS RAILWAY COMPANY, LLC,
PETITIONER
v.
UNITED STATES OF AMERICA AND
RAILROAD RETIREMENT BOARD,
RESPONDENTS
On Petition for Review of a decision of the
Railroad Retirement Board
Robert Bergen argued the cause and filed the briefs for
petitioner. Paul J. Kiernan entered an appearance.
3
Rachel L. Simmons, General Attorney, Railroad Retirement
Board, argued the cause for respondent. With her on the brief
was Steven A. Bartholow, Deputy General Counsel.
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The American Orient Express
Railway Company markets and sells vacations aboard vintage
railcars. The issue in these petitions for judicial review is
whether the Orient Express is a “rail carrier,” and thus a covered
employer liable for contributions under the Railroad Retirement
Act, 45 U.S.C. § 231 et seq., and the Railroad Unemployment
Insurance Act, id. § 351 et seq.1
Vacations on the Orient Express feature luxury train
accommodations, fine dining, and activities such as excursions
at intermediate stops, lectures, and live music. The Orient
Express company owns the railcars and employs onboard
service workers, including chefs, waiters, bartenders, tour
leaders, and cabin attendants. To move its railcars, the company
contracts with Amtrak, which provides locomotives and engine
crews and makes arrangements with third parties who own and
operate railroad tracks.
The Railroad Retirement Board initiated proceedings to
determine whether the Orient Express was liable for
contributions under the Railroad Retirement Act and the
Railroad Unemployment Insurance Act. Under those statutes,
a covered employer includes, essentially, any carrier by railroad
1
Although the Orient Express sold its assets, the case is not
moot because the company’s liability for contributions remains at
issue.
4
subject to the jurisdiction of the Surface Transportation Board.
See 45 U.S.C. §§ 231(a)(1), 351(a)-(b). At the request of the
Orient Express, the Retirement Board stayed its proceedings to
allow the company to obtain a declaratory order from the
Surface Transportation Board. The Transportation Board issued
a declaratory order stating the company was subject to its
jurisdiction. STB Finance Docket No. 34502 (Dec. 27, 2005)
(STB Order). The Retirement Board then issued an order
agreeing with the Transportation Board and holding the
company liable for contributions. B.C.D. 06-15 (Apr. 18, 2006)
(RRB Order).
The Orient Express claims it is not subject to the
jurisdiction of the Transportation Board because it neither owns
nor operates a railroad. Under the Interstate Commerce Act, the
Transportation Board has jurisdiction over “transportation by
rail carrier that is . . . by railroad.” 49 U.S.C. § 10501(a)(1). A
rail carrier is “a person providing common carrier railroad
transportation for compensation.” Id. § 10102(5).
The Transportation Board ruled that the Orient Express
provides “transportation.” The company does not dispute that
ruling. But the company denies that it provides “railroad
transportation,” arguing that it is not a “railroad” because it does
not own tracks, see 49 U.S.C. § 10102(6), and therefore cannot
provide “railroad transportation.” The argument not only defies
common sense – if the Orient Express is not providing railroad
transportation, what kind of transportation is it providing? – but
also confuses the use of “railroad” as a noun with its use as an
adjective in § 10102(5). A “rail carrier” may own tracks and
transport passengers along its tracks, but that is not the only way
to provide “railroad transportation.” A rail carrier may instead
use tracks owned by another entity and “operated under an
agreement,” 49 U.S.C. § 10102(6)(B), which is how the
Transportation Board viewed the Orient Express. STB Order at
5
4. Given our respect for the Transportation Board’s judgment
in these matters, see Ass’n of Am. R.Rs. v. Surface Transp. Bd.,
162 F.3d 101, 104, 107 (D.C. Cir. 1998), we see no basis for
upsetting its determination of what constitutes tracks “operated
under an agreement.”2
The Transportation Board next determined that the Orient
Express was a common carrier because it “holds itself out to the
general public as engaged in the business of transporting
persons.” STB Order at 4. The Orient Express argues that a
common carrier is instead one who provides a service meeting
“a specific and provable public need” that “cannot . . . be met on
a commercially reasonable basis” without “a virtual monopoly
or . . . franchise,” in return for which the carrier accepts
additional duties. Although the Interstate Commerce Act does
not define “common carrier,” the Transportation Board’s
definition is the standard one. See Fla. Power & Light Co. v.
FERC, 660 F.2d 668, 674 (5th Cir. 1981) (“Under common law,
a common carrier is one who holds himself out as engaged in the
business of providing a particular service to the public.”);
BLACK’S LAW DICTIONARY 226 (8th ed. 2004). The Orient
Express makes the mistake of treating the description of some
common carriers as a definition of all common carriers. The law
imposes upon some common carriers duties such as
nondiscrimination and the use of utmost care, and it requires
some providers, especially monopolies, to behave as common
carriers if their services are essential. Nevertheless, the term
2
That the Orient Express does not operate its own
locomotives and relies on Amtrak for motive power is of no
consequence. Nothing in the definition of railroad “transportation”
suggests the carrier must use its own locomotives. The Interstate
Commerce Act defines “transportation” to include either “a
locomotive” or a “car . . . related to the movement of passengers.” 49
U.S.C. § 10102(9)(A).
6
“common carrier” describes not the legal obligations of a
company but how the company does business. To be a common
carrier, a company need only, in practice, serve the public
indiscriminately and not “make individualized decisions, in
particular cases, whether and on what terms to deal.” Nat’l
Ass’n of Regulatory Util. Comm’rs v. FCC, 525 F.2d 630, 641
(D.C. Cir. 1975) (NARUC); see also Nevada v. Dep’t of Energy,
457 F.3d 78, 86 (D.C. Cir. 2006).
The Orient Express operates as a common carrier. It
distributes to the public brochures advertising specific prices for
its vacation packages. Its 2004 brochure, for instance, offered
an eight-day trip exploring the Pacific Coast at a per-person rate
of $ 3,190 for “Vintage Pullman” cabin accommodations and
$ 5,290 for “Presidential Suite” accommodations. There is no
indication the Orient Express makes customer-by-customer
decisions about whether it will deal. True enough, the company
excludes children under the age of eight and has not made its
cars accessible to the mobility-impaired. The company also
notes that not every member of the public can afford its
vacations. But to hold oneself out to the public “does not mean
a given carrier’s services must practically be available to the
entire public.” NARUC, 525 F.2d at 641. “One may be a
common carrier though the nature of the service rendered is
sufficiently specialized as to be of possible use to only a fraction
of the total population. And business may be turned away either
because it is not of the type normally accepted or because the
carrier’s capacity has been exhausted.” Id.
The Surface Transportation Board reasonably concluded it
had jurisdiction over the Orient Express, see Ass’n of Am. R.Rs.,
162 F.3d at 104, and we therefore deny the company’s petition
7
for review in No. 06-1077.3
This brings us to the petition for review of the Railroad
Retirement Board’s order (No. 06-1203). The Retirement Board
summarized and agreed with the Transportation Board’s
determination that the Orient Express was subject to the
Transportation Board’s jurisdiction. The company contends the
Retirement Board evaded its responsibility when it deferred to
the Transportation Board’s decision without analysis. The
company’s description of what occurred is not accurate. The
Retirement Board noted that it “should carefully weigh a
decision by the [Transportation Board]” and “accept the
[Transportation Board’s] conclusion for purposes of
coverage . . . if it accords with the evidence before us as well.”
RRB Order at 3-4. After stating this, the Retirement Board
provided a detailed summary of the Transportation Board’s
decision and correctly found that “the conclusion . . . is clearly
supported on each issue by the evidence before the Board itself
as well.” RRB Order at 5. That the Retirement Board reached
the same conclusion about the Orient Express as the
Transportation Board shows only that the company’s arguments
were not well-conceived.
The Railroad Retirement Board reasonably determined the
3
In a consolidated case (No. 06-1080), petitioner General
Committee of Adjustment 386 of the United Transportation Union
contends the Transportation Board lacked power to issue the
declaratory order. This court only has jurisdiction over petitions filed
by a “party aggrieved” by a final order. 28 U.S.C. § 2344. A party
challenging an agency’s authority to act is not “aggrieved” if the
agency disposition was in its favor. See City of Cleveland v. U.S.
Nuclear Regulatory Comm’n, 68 F.3d 1361, 1370 (D.C. Cir. 1995).
The Committee does not claim this particular order harmed it or its
members in any way. We therefore dismiss the Committee’s petition
for lack of subject matter jurisdiction.
8
Surface Transportation Board had jurisdiction over the Orient
Express. See Ry. Labor Executives’ Ass’n v. R.R. Ret. Bd., 749
F.2d 856, 860 (D.C. Cir. 1984). The company’s petition in
No. 06-1203 is therefore denied.
So ordered.