Daniels v. Union Pacific Railroad

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2008 Decided July 1, 2008

No. 07-5114

CHARLES DANIELS AND
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
AND TRAINMEN, CENTRAL REGION,
APPELLANTS

v.

UNION PACIFIC RAILROAD COMPANY ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 06cv00939)

Thomas Geoghegan argued the cause for the appellants.
Edgar James was on brief.
Marian L. Borum, Assistant United States Attorney, argued
the cause for the federal appellees. Jeffrey A. Taylor, United
States Attorney, and Michael J. Ryan, Assistant United States
Attorney, were on brief. R. Craig Lawrence, Assistant United
States Attorney, entered an appearance.
Donald J. Munro argued the cause for appellee Union
Pacific Railroad Company. Henry N. Carnaby and Jeffrey D.
Fox entered appearances.
 2

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.*
KAREN LECRAFT HENDERSON, Circuit Judge: Appellants
Charles Daniels and the Brotherhood of Locomotive Engineers
and Trainmen (BLET) appeal the district court’s dismissal of
their complaint against the Federal Railroad Administration
(FRA), the Locomotive Engineer Review Board (LERB) and the
Union Pacific Railroad Company (Union Pacific). See Daniels
v. Union Pac. R.R., 480 F. Supp. 2d 191 (D.D.C. 2007). Daniels
and the BLET allege that the defendants violated the Due
Process Clause of the Fifth Amendment by demoting Daniels
and six other locomotive engineers from Class I locomotive
engineers to Class III student engineers without a hearing.1 The
district court dismissed the claims for failure to exhaust
administrative remedies and, alternatively, for lack of subject
matter jurisdiction. For the reasons that follow, we affirm the
dismissal for lack of subject matter jurisdiction.
I.
Pursuant to authority delegated by the Secretary of the
United States Department of Transportation (Secretary) acting
under The Rail Safety Improvement Act of 1988, Pub. L. No.
100-342 § 4, 102 Stat. 624 (1988) (recodified at 49 U.S.C.
§ 20135), in 1991 the FRA adopted a certification program for

*
Circuit Judge BROWN concurs in the opinion of the Court except
as to footnotes 8, 9 and 13.
1
The BLET “represents not only plaintiff Daniels but [the six]
other engineers named [in the complaint] who have lost their Class I
licenses without a hearing or other due process.” First Am. Compl.
¶ 5.
 3

locomotive engineers.2 See Qualifications for Locomotive
Engineers, 56 Fed. Reg. 28,228 (1991) (codified at 49 C.F.R. pt.
240). Although the FRA does not test or certify engineers itself,
its regulations require each railroad to adopt training and
certification programs that meet minimum requirements, see,
e.g., 49 C.F.R. §§ 240.1, 240.101, and, regardless of differences
among the individual railroads’ programs, all railroads must
“employ standard methods for identifying qualified locomotive
engineers and monitoring their performance,” 56 Fed. Reg. at
28,228, including procedures governing certification and
revocation of certificates, see, e.g., 49 C.F.R. §§ 240.211,
240.219, 240.117, 240.307. For example, before certifying (or
recertifying) a locomotive engineer, a railroad must “determine
that the person has demonstrated . . . the skills to safely operate
locomotives or locomotives and trains, including the proper
application of the railroad’s rules and practices for the safe
operation of locomotives or trains, in the most demanding class
or type of service that the person will be permitted to perform.”
Id. § 240.211(a). If a prospective engineer is denied
certification (or recertification in the case of a certified
engineer), the “railroad shall notify [the] candidate for
certification or recertification of information known to the
railroad that forms the basis for denying the person certification
and provide the person a reasonable opportunity to explain or
rebut that adverse information in writing prior to denying
certification.” Id. § 240.219(a). Once certified, an engineer
must undergo periodic retesting and “[a] certified engineer who
has demonstrated a failure to comply . . . with railroad rules and
practices for the safe operation of trains shall have his or her
certification revoked.” Id. § 240.117(c)(1). Before revoking an
engineer’s certification, the railroad must “provide notice of the
reason for the suspension, the pending revocation, and an

2
The FRA’s delegated authority is set forth in 49 C.F.R.
§ 1.49(m).
 4

opportunity for a hearing before a presiding officer other than
the investigating officer.” Id. § 240.307(b).
The FRA reviews the railroad’s decision to deny
certification/recertification or to revoke a certification. See 49
C.F.R. § 240.401(a). The FRA “has delegated initial
responsibility for adjudicating such disputes to the Locomotive
Engineer Review Board.” Id. § 240.401(b). “If adversely
affected by the Locomotive Engineer Review Board decision,
either the petitioner before the Board or the railroad involved
shall have a right to an administrative proceeding [before an
FRA Administrative Hearing Officer].” Id. §§ 240.407(a),
240.409. The Administrative Hearing Officer (AHO) hearing is
“a de novo hearing to find the relevant facts and determine the
correct application of [49 C.F.R. Part 240] to those facts.” Id.
§ 240.409(c). “Any party aggrieved by the [AHO’s] decision
may file an appeal [with the FRA Administrator].” Id.
§ 240.411(a). “The Administrator may remand, vacate, affirm,
reverse, alter or modify the decision of the presiding officer and
the Administrator's decision constitutes final agency action
except where the terms of the Administrator's decision (for
example, remanding a case to the presiding officer) show that
the parties’ administrative remedies have not been exhausted.”
Id. § 240.411(e).
Daniels was hired by Union Pacific in August 1998. On
July 14, 1999, his “Class I certificate” to operate a locomotive
became effective but two months later, on September 3, 1999,
Union Pacific required Daniels to undergo additional evaluation.
After receiving low scores on the re-evaluation, on September
8, 1999, Daniels was demoted from a Class I engineer to a Class
III student engineer. Union Pacific did not provide Daniels with
a hearing before or after his demotion. Following his demotion,
Daniels was given approximately six months to requalify as a
Class I engineer. As a student engineer Daniels completed
several railroad trips but also failed several certification
 5

evaluations and Union Pacific eventually terminated him by
letter on March 1, 2000. From 2003 to 2006, Union Pacific also
demoted the six other Class I engineers represented by BLET to
Class III student engineers without providing hearings. First
Am. Compl. ¶ 3. Unlike Daniels, however, the other engineers
were recertified and recovered their Class I certificates.
Following his termination, Daniels petitioned for review by
the LERB on August 2, 2000, asserting that Union Pacific
demoted him from a Class I engineer without providing a
hearing as required by 49 C.F.R. § 240.307 and improperly
terminated him. On January 31, 2001, the LERB denied
Daniel’s petition, finding “no merit” in Daniels’s argument
because “the instant case involves the denial of certification,
rather than the revocation of certification.” Review and
Determinations Concerning Union Pacific Railroad Company’s
Decision to Deny Mr. C. L. Daniels Locomotive Engineer
Certification, FRA Docket No. EQAL 00-51, at 3 (Fed. R.R.
Admin. Jan. 31, 2001) (second emphasis added). The LERB
concluded that Daniels’s “rights in this case are properly
governed by 49 C.F.R. 240.219, which does not require a
railroad to convene a hearing.”3 Id.
Acting on behalf of Daniels, the BLET then requested an
administrative hearing before the AHO on February 16, 2001.
On April 19, 2006, the AHO dismissed BLET’s appeal with

3
The LERB correctly concluded that Union Pacific’s denial of
Daniels’s recertification is governed by section 240.219. See 49
C.F.R. § 240.219 (governing denial of “certification or
recertification”). Before Daniels attempted recertification, however,
Union Pacific demoted Daniels from a certified engineer (Class I) to
a Class III student engineer, an action the LERB ignored in its
analysis.
 6

prejudice.4 C.L. Daniels, Decision and Order of Dismissal, FRA
Docket No. EQAL 00-51 (Fed. R.R. Admin. Apr. 19, 2006).
Rather than appealing to the FRA Administrator, Daniels and
the BLET filed a complaint in district court against Union
Pacific, the FRA and the LERB.5 The complaint is styled a
“Bivens action” and, in Count I, alleges that Union Pacific
deprived the engineers of their liberty and property interests
without due process in violation of the Fifth Amendment.6 First
Am. Compl. ¶¶ 1, 73-77. Counts II and III allege that the FRA
and the LERB violated the engineers’ right to procedural due
process by repeatedly “acquiesc[ing] and ratif[ying] and
participat[ing] in the actions of defendant Union Pacific” and
“demonstrat[ing] their clear bias in favor of [Union Pacific]”
during the administrative hearings. Id. ¶¶ 82, 85.
After filing the complaint in district court, Daniels appealed
the AHO’s decision to the FRA Administrator, contending that
the AHO had improperly failed to address whether Daniels was
entitled to a hearing before he was demoted and that the AHO
was “bias[ed] against him and . . . the case ha[d] been
irreparably tainted with error.” Appeal of C.L. Daniels, The
Administrator’s Final Decision, FRA Docket No. EQAL 2000-
51, at 5 (Fed. R.R. Admin. July 31, 2006) (Daniels Order). On

4
We note with dismay the fact that the AHO took more than five
years to reach his decision.
5
The defendants argue (and the district court agreed) that Daniels
and the six other engineers failed to exhaust their administrative
remedies because they filed their complaint before appealing the
AHO’s decision to the FRA Administrator. See infra n.9.
6
The holding in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 389 (1971), permits a plaintiff to
bring a damages action against a federal officer/employee for the
alleged violation of his constitutional rights.
 7

July 31, 2006, the FRA Administrator held that Daniels had
waived the issue of his right to a hearing by failing to raise it
before the AHO; in addition, the Administrator found “no error
of law . . . and no evidence of bias” on the AHO’s part.7 Id.
Meanwhile, in the district court proceedings, the defendants
moved to dismiss the plaintiffs’ complaint for lack of
jurisdiction. On March 29, 2007, the district court dismissed the
complaint under Federal Rule of Civil Procedure 12(b)(1),
concluding that it lacked subject matter jurisdiction because
Daniels and the other engineers failed to exhaust their
administrative remedies. Daniels, 480 F. Supp. 2d at 194-95.
As an alternative ground for dismissal, it held that the Hobbs
Act, 28 U.S.C. § 2342(7), vests the court of appeals with

7
Of the six other engineers—all of whom were eventually
recertified after being demoted to Class III student engineers—three
did not initiate any administrative action at all: as of the date of oral
argument, one had an LERB petition pending, one had an AHO
petition pending and the sixth—K.L. Hensley—had received an
adverse Administrator’s decision. See Appeal of K.L. Hensley, The
Administrator’s Final Decision, FRA Docket No. EQAL 2003-56
(Fed. R.R. Admin. Feb. 1, 2008) (Hensley Order). Like Daniels,
Hensley argued that Union Pacific improperly denied him a hearing
as required by 49 C.F.R. § 240.307 when it demoted him. Id. at 4.
Acknowledging that “Hensley’s argument has a superficial, gut-level
appeal [and] there is logic to the suggestion that Hensley has been
adversely affected,” the Administrator nonetheless concluded that
section 240.307 “clearly states that it is invoked only upon revocation
of certification [and] [t]here is nothing in the regulation which
provides that a diminution in the quality of a license is to be
considered to be a revocation under the regulation or to otherwise
invoke its provisions.” Id. at 4-5. Unlike Daniels, Hensley initiated
his challenge to the Administrator’s decision in this Court. See K.L.
Hensley v. Fed. R.R. Admin., No. 08-1143 (D.C. Cir. filed Apr. 1,
2008).
 8

exclusive jurisdiction over the claims. Id. at 195-96.8 The
plaintiffs filed a timely notice of appeal.
II.
“We review the district court’s legal conclusions de novo
. . . [and] ‘accept as true the facts that [the plaintiffs] allege[] in
[their] complaint’ in reviewing the district court’s disposition of
the defendants’ motion to dismiss.” Rasul v. Meyers, 512 F.3d
644, 654 (D.C. Cir. 2008) (quoting Cummings v. Dep’t of the
Navy, 279 F.3d 1051, 1053 (D.C. Cir. 2002)) (alterations in
Rasul). Throughout the administrative proceedings as well as in
district court and before us, the defendants have maintained that
the plaintiffs’ Class I certificates were not “revoked” but that the
plaintiffs were instead “demoted” from Class I engineers to
Class III student engineers. Because the regulations contain no
provision for a hearing attendant on demotion, they continue,
they violated no regulation (and thus no constitutional provision)
in not providing one. The defendants fail to add that the
regulations do not mention “demotion” at all. While they have
applied various labels to the demotions, see, e.g., Federal
Appellees’ Br. 36 n.20 (referring to revocation of Daniels’s
Class I certificate as “reclassifi[cation],” or “recertifi[cation]
from Class I status to Class III status”); Hensley Order 5
(referring to revocation of Hensley’s Class I certification as “a
diminution in the quality of a license”), they have consistently
avoided calling them “revocations”—attempting to similarly
avoid the otherwise plain applicability of 49 C.F.R. § 240.307.
But the plaintiffs’ demotions resulted in the loss of their Class

8
Count I consists of both the Bivens damages claim and a claim
for injunctive relief. First Am. Compl. ¶ 77. The plaintiffs do not
appeal the dismissal of the damages claim, see Appellants’ Br. 2 n.1,
and therefore we need not address the defendants’ alternative “non-
state actor” ground for dismissal. See Appellee Union Pacific’s Br.
10-15.
 9

I certifications and the only way certification can be “lost” under
the regulations is by revocation.
The district court held—as an alternative ground—that it
lacked subject matter jurisdiction over the plaintiffs’ claims
pursuant to the Hobbs Act.9 As noted earlier, the Hobbs Act

9
Although the district court also dismissed the complaint for
failure to exhaust, we do not reach the exhaustion issue for several
reasons. First, “[t]he word ‘exhaustion’ now describes two distinct
legal concepts.” Avocados Plus Inc. v. Veneman, 370 F.3d 1243,
1247 (D.C. Cir. 2004). The first “is a judicially created doctrine
requiring parties who seek to challenge agency action to exhaust
available administrative remedies before bringing their case to court”
(non-jurisdictional exhaustion). Id. “The second form of exhaustion
arises when Congress requires resort to the administrative process as
a predicate to judicial review” (jurisdictional exhaustion). Id. The
district court treated exhaustion as jurisdictional. Daniels, 480 F.
Supp. 2d at 194-95. But see Avocados, 370 F.3d at 1248 (“We
presume exhaustion is non-jurisdictional unless ‘Congress states in
clear, unequivocal terms that the judiciary is barred from hearing an
action until the administrative agency has come to a decision.’”
(quoting I.A.M. Nat’l Pension Fund Benefit Plan C v. Stockton Tri
Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984))). Second, the question
of exhaustion is fact specific and here varies with each plaintiff. For
example, while three of the seven engineers did not seek any
administrative review upon their respective demotions, engineers
Hensley and Daniels ultimately appealed to (and received decisions
from) the Administrator. See Hensley Order; Daniels Order. In
addition, Hobbs Act jurisdiction is triggered by “final agency
action[].” 28 U.S.C. § 2342(7). “It may be observed that the concepts
of ‘final decision’ and ‘exhaustion’ are often closely intertwined and
sometimes confused.” Bethlehem Steel Corp. v. EPA, 669 F.2d 903,
908 (3d Cir. 1982). “Finality and exhaustion are not identical,
however, no matter how often they converge” because “exhaustion
refers to the steps which the litigant must take, whereas finality refers
to the conclusion of activity by the agency.” Id. For the purpose of
analyzing—and affirming—the district court’s alternative holding, we
 10

provides that “[t]he court of appeals (other than the United
States Court of Appeals for the Federal Circuit) has exclusive
jurisdiction to enjoin, set aside, suspend (in whole or in part), or
to determine the validity of . . . all final agency actions described
in [49 U.S.C. § 20114(c)].” 28 U.S.C. § 2342(7) (emphasis
added). Included in “all final agency actions” described in
section 20144(c) is “final action of the Secretary of
Transportation.” See also Carpenter v. Mineta, 432 F.3d 1029,
1032 (9th Cir. 2005) (FRA Administrator’s affirmance of
railroad’s denial of engineer certification constitutes final
agency action subject to jurisdiction of circuit court under
Hobbs Act); cf. Atchison, Topeka & Santa Fe Ry. v. Peña, 44
F.3d 437, 441 (7th Cir. 1994) (FRA Chief Counsel’s letter and
FRA Federal Register publication interpreting Hours of Service
Act of 1907, 45 U.S.C. §§ 61-66, constitute final agency action
subject to exclusive jurisdiction of circuit court pursuant to
Hobbs Act), aff’d sub nom., Bhd. v. Atchison, Topeka & Santa
Fe R.R., 516 U.S. 152 (1996).
Count II of the plaintiffs’ complaint alleges that “LERB and
FRA have acquiesced in and ratified and participated in the
actions of defendant Union Pacific to deprive plaintiff Daniels
and other locomotive engineers . . . of their rights under the Due
Process Clause of the Fifth Amendment . . . by allowing Union
Pacific to revoke a Class I certificate without any hearing.” First
Am. Compl. ¶¶ 82-83. Count III alleges that the LERB and the
FRA “demonstrated their clear bias in favor of the defendant
Union Pacific in violation of the Due Process clause of the Fifth
Amendment.” Id. ¶ 85. Because Counts II and III seek review
of “final agency action[]”—namely, the denial of the plaintiffs’
petitions—the Hobbs Act would give exclusive jurisdiction over
their claims to this Court. This does not mean, however, that we

assume that all of the plaintiffs have satisfied exhaustion and finality
requirements.
 11

could have necessarily exercised jurisdiction over each
plaintiff’s claim if the petition for review had been filed with us
because not every plaintiff, it appears, supra n.9, may have
satisfied the Hobbs Act’s finality requirement.10 See 28 U.S.C.
§ 2342(7) (court of appeals has exclusive jurisdiction over all
“final agency actions”) (emphasis added). In any event,
notwithstanding the justiciability vel non of each plaintiff’s
claims in this court, the district court lacks subject matter
jurisdiction over Count II and Count III because those claims,
once final, are subject to this Court’s exclusive jurisdiction
pursuant to the Hobbs Act. See Telecomms. Research & Action
Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984) (“TRAC”)
(“[W]here a statute commits review of agency action to the
Court of Appeals, any suit seeking relief that might affect the
Circuit Court’s future jurisdiction is subject to the exclusive
review of the Court of Appeals.”).
Count I—brought against Union Pacific only—alleges that
Union Pacific violated the Due Process Clause of the Fifth
Amendment by failing to “provide a prior hearing or prompt
post deprivation hearing to determine if there is the basis for
revocation of a Class I certificate under federal regulations.” Id.
¶ 74. Union Pacific “acts under color of federal law,” id. ¶ 1,
the plaintiffs maintain, and they seek injunctive relief to “require
defendant Union Pacific to hold a prior or prompt post
deprivation hearing,” “expunge any . . . reference to the
revocation of a license as to [any] other engineer when such
revocation of a license occurred without a prior hearing,”
“reinstate plaintiff Daniels as a locomotive engineer with the

10
“Final agency action” can occur at all intermediate steps of FRA
review. See 49 C.F.R. § 240.411(f) (FRA Administrator’s decision
constitutes “final agency action”); id. § 240.411(a) (AHO’s decision
constitutes “final agency action” if no timely appeal of AHO’s
decision); id. § 240.407(c) (LERB decision constitutes “final agency
action” if no timely appeal of LERB decision).
 12

right to use his Class I certificate” and “[g]rant plaintiff Daniels
his full back pay and benefits and other damages”—the precise
relief sought from the FRA and the LERB in Counts II and III.11
Id. ¶ 77. Notwithstanding their having named only Union
Pacific in Count I, we construe Count I as a challenge to the
actions of the FRA and the LERB as well for two reasons. First,
the standards and procedures governing certification and the
revocation of certifications are codified in federal regulations.
See 49 C.F.R. pt. 240. Union Pacific’s denial of a hearing is
thus based on its interpretation of the FRA regulations, an
interpretation the FRA has upheld. See Hensley Order 5 (“There
is nothing in [49 C.F.R. § 240.307] which provides that a
diminution in the quality of a license is to be considered to be a
revocation under the regulation or to otherwise invoke its
provisions.”). Accordingly, to obtain the relief sought, the
plaintiffs must challenge the FRA’s interpretation of its
regulations as well as Union Pacific’s application of the
regulations. Otherwise, the plaintiffs are circumventing review
of the FRA’s regulations in this Court (provided for by the
Congress under the Hobbs Act) by instead indirectly—in Count
I—seeking review of the regulations in district court. See Bright
v. Lehman, 725 F.2d 788, 790 (D.C. Cir. 1984) (“We will not
allow appellant to circumvent [an] appeals procedure defined by
Congress simply by casting a [different] label on his claim.”).

11
In Count II, the plaintiffs seek to require the FRA to “issue an
order declaring the actions of defendant Union Pacific to be in
violation of applicable and binding federal regulations,” “reinstate[]
[Daniels] as a certified engineer with full back-pay and benefits” and
“notify all affected members of plaintiff BLET that it will comply with
their rights under federal regulations.” First Am. Compl. ¶ 83. In
Count III, the plaintiffs request the district court to “[d]eclare that
defendant FRA has violated Daniels’ [sic] right to procedural Due
Process” and to order the FRA to “submit a plan to ensure that the
claim of plaintiff Daniels be decided in an impartial and neutral
manner and to purge the administrative process of bias.” Id. ¶ 85.
 13

Second, the plaintiffs maintain that their Class I
certifications were effectively revoked when they were demoted
from Class I to Class III. See First Am. Compl. ¶¶ 56, 62, 69,
74, 77; see also Appellants’ Br. 10, 12. Revocation is subject to
a three-tiered level of administrative review, see supra p. 4, and
thus a revocation challenge is ultimately aimed at the FRA, not
at Union Pacific alone. Accordingly, we construe Count I as a
challenge to the other two defendants’ actions as well and thus
within the Hobbs Act’s jurisdictional reach.12
Relying on the Supreme Court’s holding in McNary v.
Haitian Refugee Center, Inc., 498 U.S. 479 (1991), the plaintiffs
alternatively maintain that the district court has jurisdiction
notwithstanding the Hobbs Act because all three counts involve
a constitutional challenge. In McNary, undocumented
immigrants who were denied amnesty status filed a class action

12
We have cautioned against adopting a narrow interpretation of
another exclusive jurisdiction vesting statute:
[T]here are compelling policy reasons for holding
that the jurisdiction of the Court of Appeals is
exclusive. Appellate courts develop an expertise
concerning the agencies assigned them for review.
Exclusive jurisdiction promotes judicial economy and
fairness to the litigants by taking advantage of that
expertise. In addition, exclusive jurisdiction
eliminates duplicative and potentially conflicting
review, and the delay and expense incidental thereto.
TRAC, 750 F.2d at 78 (interpreting judicial review provision for final
action of Federal Communications Commission, 28 U.S.C. § 2342(1))
(citation omitted); see also John Doe, Inc. v. DEA, 484 F.3d 561, 570
(D.C. Cir. 2007) (narrow interpretation of judicial review provision
of Controlled Substances Act, 21 U.S.C. § 877, would “encourage[]
forum shopping and encourage[] dissatisfied claimants to ‘jump the
gun’ by going directly to the district court to develop their case instead
of exhausting their administrative remedies before the agency”).
 14

in district court claiming that the application process prescribed
by the Immigration and Naturalization Service (INS) violated
the Due Process Clause of the Fifth Amendment. Id. at 487-88.
The Court upheld the district court’s jurisdiction to consider the
plaintiffs’ due process claim even though the Immigration and
Nationality Act, § 210(e), 8 U.S.C. § 1160(e) (INA), barred
judicial review of all INS determinations regarding the
immigrants other than deportation decisions. Id. at 491-94. The
plaintiffs insist that they “have brought what is clearly a
McNary-type case,” Appellants’ Br. 23, reading McNary to
create two exceptions to a statutory grant of exclusive
jurisdiction to the court of appeals: (1) “constitutional violations
that arise from a broad ‘pattern and practice’ of agency
misconduct,” id., and (2) “no possibility of ‘meaningful review’
of the challenged practice in the Court of Appeals,” Reply Br.
10 (quoting McNary, 498 U.S. at 497). The plaintiffs misread
McNary.
In McNary, the Court did not create an exception to the
INA’s jurisdictional bar simply because the plaintiffs mounted
a constitutional challenge—that is, the nature of the claim itself
does not determine whether the jurisdictional bar applies.
Instead, the availability of effective judicial review is the
touchstone of the McNary exception. As the Court explained,
“[w]ere we to hold otherwise and instead require respondents to
avail themselves of the limited judicial review procedures set
forth in § 210(e) of the INA, meaningful judicial review of their
statutory and constitutional claims would be foreclosed.” 498
U.S. at 484 (emphasis added). See also John Doe, Inc. v. DEA,
484 F.3d 561, 569 (D.C. Cir. 2007) (“[T]he holding in McNary
cannot be divorced from the Court’s obvious concern that,
absent district court review of the McNary plaintiffs’ claims,
meaningful judicial review would have been entirely
foreclosed.”); TRAC, 750 F.2d at 78 (“There may be a small
category of cases in which the underlying claim is not subject to
the jurisdiction of the Court of Appeals (and thus adjudication
 15

of the claim in the District Court will not affect any future
statutory review authority of the Circuit Court.) In such cases,
where a denial of review in the District Court will truly
foreclose all judicial review, district court review might be
predicated on the general federal question jurisdiction statute, 28
U.S.C. § 1331.”); see also Carpenter, 432 F.3d at 1032-34.
Accordingly, because the applicability of the McNary exception
turns on the availability of judicial review without regard to the
nature of the plaintiff’s claim, we would have exclusive
jurisdiction over the plaintiffs’ constitutional challenges.
Again relying on McNary, the plaintiffs argue that the
district court has jurisdiction over their claims because
otherwise “there is no possibility of ‘meaningful review’ of the
challenged practice.” Reply Br. 10 (quoting McNary, 498 U.S.
at 497). The Hobbs Act, however, differs significantly from the
INA—while the INA strips all courts of jurisdiction to review
INS actions other than deportation decisions, the Hobbs Act
vests one court—the court of appeals—with jurisdiction to
review all final FRA action. Accordingly, the Hobbs Act does
not deprive the plaintiffs of “meaningful judicial review of their
statutory and constitutional claims,” McNary, 498 U.S. at 494,
because they can seek such review—in the circuit court.13

13
As noted supra pp. 10-11, we do not hold that we could in fact
exercise jurisdiction over each plaintiff’s claim because of finality
questions. Instead, we limit our holding to affirming the district
court’s dismissal for lack of subject matter jurisdiction. The plaintiffs
also argue that we lack the power to grant the relief sought because
“Union Pacific does not even suggest how the Court of Appeals could
give prospective class-type relief against the carrier itself, or reinstate
the licenses of the engineers or get the FRA or Union Pacific to award
back pay.” Reply Br. 14. But the Hobbs Act grants the court of
appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole
or in part), or to determine the validity of . . . all final actions
described in [49 U.S.C. § 20114],” 28 U.S.C. § 2342(7), which
 16

For the foregoing reasons, we affirm the district court’s
dismissal of the plaintiffs’ claims for lack of subject matter
jurisdiction under the Hobbs Act.
So ordered.

includes the FRA’s administration of the locomotive engineer
certification program. See 49 U.S.C. §§ 20114, 20135; 49 C.F.R.
§ 1.49(m).