United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2010 Decided March 15, 2011
No. 09-1188
EDWIN KESSLER AND JAMES RIFFIN,
PETITIONERS
v.
SURFACE TRANSPORTATION BOARD AND UNITED STATES OF
AMERICA,
RESPONDENTS
BNSF RAILWAY COMPANY,
INTERVENOR
On Petition for Review of an Order
of the Surface Transportation Board
James Riffin, appearing pro se, argued the cause and filed
the briefs for petitioners. Edwin Kessler, appearing pro se,
entered an appearance.
James B. Boles, Attorney, Surface Transportation Board,
argued the cause for respondents. With him on the brief were
Robert B. Nicholson and John P. Fonte, Attorneys, U.S.
Department of Justice, Ellen D. Hanson, General Counsel,
Surface Transportation Board, and Craig M. Keats, Deputy
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General Counsel. Erik G. Light, Attorney, entered an
appearance.
Before: GINSBURG, ROGERS and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: Edwin Kessler and James
Riffin petition for review of an order of the Surface
Transportation Board (STB) denying them preliminary
injunctive relief. We dismiss their petition because we lack
jurisdiction to decide all but one of the claims presented and
the petitioners have failed to exhaust their administrative
remedies as to that claim.
I. Background
In July 2008 Kessler contracted with BNSF Railway Co.
to have a locomotive he leased from Riffin transported and
delivered to himself, “care of Boardman, Inc.,” a company in
Oklahoma City with property abutting his own. After taking
possession of the locomotive BNSF found Boardman would
not accept delivery of the locomotive and so informed
Kessler. When the parties failed to agree upon a suitable
alternative arrangement for delivery, BNSF notified Kessler it
was going to sell the locomotive at auction, as provided in the
bill of lading, if he did not himself make arrangements to
dispose of it.
Despite Riffin’s admission at oral argument that the locomotive
belongs to him, because both parties’ filings refer to the locomotive
as belonging to Kessler instead of Riffin, and because Kessler is the
named party in the proceedings in front of the STB, we refer to
Kessler as the singular owner of the locomotive.
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Kessler then asked the STB for an injunction to stop the
sale of the locomotive and to compel BNSF to complete
delivery. Kessler also asked the STB to order BNSF to pay
him damages of $50.00 for each day delivery was delayed and
to relieve him of any obligation to pay demurrage fees. That
motion was filed on January 26, 2009 and was duly opposed
by BNSF.
The STB had not yet ruled upon Kessler’s motion when,
on May 18 of that year, BNSF notified the STB it planned to
begin the auction of Kessler’s locomotive in one week. On
June 2 Kessler filed with the STB an emergency request for
immediate relief, but on June 8 he moved voluntarily to
dismiss both motions pending with the Board so that he might
instead pursue relief in court. Later that day Kessler filed a
motion for a temporary restraining order and a preliminary
injunction in the U.S. District Court for the District of
Maryland. Riffin v. BNSF Ry., No. 8:09-cv-1502.
On June 12 the Board denied Kessler’s motion to dismiss
and resolved on the merits his motions for injunctive relief.
See Edwin KesslerPetition for Injunctive Relief, STB Dkt
No. FD-35206 [hereinafter STB Decision]. The STB held
Kessler did not show the auction would irreparably harm him
because, contrary to Kessler’s representation, the locomotive
was easily replaceable. Id. at 5. The Board also held an
injunction would not be in the public interest: Although
BNSF had a general duty as a common carrier to serve all
comers, Kessler had not shown how the public would benefit
from enjoining the sale of a locomotive that was shipped not
for any commercial purpose “but simply to ‘test’ BNSF.” Id.
For any of the parties’ filings or the STB’s decisions, see
http://www.stb.dot.gov.
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at 6. The Board accordingly denied Kessler's motion to
enjoin the auction. Id. The Board also refused to compel
BNSF to deliver the locomotive; because the “true nature of
[Kessler’s] dispute” with BNSF was unclear, the Board held
Kessler failed to show he would likely prevail upon his claim
BNSF violated its common law duties. Id. With respect to
Kessler’s requests for relief from demurrage and other fees,
and for $50.00 in damages for each day delivery was delayed,
the Board held, respectively, that the record provided no basis
for enjoining BNSF from the collection of those charges and
that claims for monetary damages are properly raised in a
complaint proceeding and not as a part of a motion for
injunctive relief. Id. at 7.
Shortly after the Board issued its order, BNSF sold
Kessler’s locomotive at public auction for $5,000. The
Maryland district court then denied as moot (among other
defects) Kessler’s pending motion for a TRO and dismissed
his claim without prejudice.
In this court Kessler seeks review of the Board’s order
denying him injunctive and other relief. He argues the
Board’s decision is both incorrect on the merits and
procedurally infirm. The Board responds that we should
dismiss Kessler’s petition for review because his petition
asking the Board for injunctive relief is now moot and
because, as to other relief, he has failed to exhaust his
administrative remedies. We agree with the Board and
accordingly we dismiss the petition in its entirety.
II. Analysis
We may disturb the Board’s order denying Kessler
preliminary relief only if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
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U.S.C. § 706(A)(2); Riffin v. Surface Transp. Bd., 592 F.3d
195, 197 (D.C. Cir. 2010). Before we may do so, however,
we must determine whether we have jurisdiction, in whole or
in part, over Kessler’s petition for review. Ctr. for Arms
Control & Non-Proliferation v. Pray, 531 F.3d 836, 839 n.
(D.C. Cir. 2008).
It is uncontroverted that BNSF has sold Kessler’s
locomotive to a third party and that the purchaser is not before
the court. Kessler’s request for an injunction against the sale
is therefore moot and accordingly beyond our jurisdiction.
See Calderon v. Moore, 518 U.S. 149, 150 (1996) (“an appeal
should ... be dismissed as moot when, by virtue of an
intervening event, a court of appeals cannot grant any
effectual relief whatever in favor of the appellant”) (internal
quotation marks omitted); Bunn v. Werner, 210 F.2d 730, 731
(D.C. Cir. 1954) (injunction filed to prevent “a foreclosure
sale of certain real estate” dismissed as moot after foreclosure
sale had taken place); cf. FTC v. Weyerhaeuser Co., 665 F.2d
1072, 1077 (D.C. Cir. 1981) (sale does not moot an appeal
where all parties including the purchaser are before the court).
We likewise lack jurisdiction over and dismiss the
portions of Kessler’s petition that would have the court (i)
“compel the Board to compel BNSF” to retrieve the
locomotive from its current owner and deliver it to Kessler,
and (ii) order BNSF to (a) pay Kessler damages for delayed
delivery of his locomotive and (b) discharge any outstanding
demurrage fees. First, the current owner of the locomotive is
not a party to this litigation and the court will not issue an
order affecting the rights of an absent third party. Richards v.
Jefferson Cnty., 517 U.S. 793, 797 n.4 (1996) (“The
opportunity to be heard is an essential requisite of due process
of law in judicial proceedings”). Second, insofar as Kessler’s
claims arise from the carrier’s liability under the bill of
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lading, they must be filed in the first instance in a district or
state court. 49 U.S.C. § 11706(d)(1).
To the extent Kessler asks us to order the Board to
investigate whether BNSF has improperly abandoned a rail
line or failed to fulfill its obligation as a common carrier
pursuant to 49 U.S.C. § 11101, we dismiss his petition
because he failed to exhaust his administrative remedies.
Under 49 U.S.C. § 11701, the STB may initiate an
investigation of a rail carrier “only on complaint.” The STB
has issued a regulation prescribing the form and manner in
which a complaint must be filed. See 49 C.F.R. § 1111.1.
Kessler’s failure to comply with that regulation puts his
arguments in this regard out of court. See Chicago & Nw.
Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321–23
(1981) (“Congress intended that an aggrieved shipper should
seek relief in the first instance from the Commission”).
Finally, Kessler argues the Board somehow acted
improperly by denying his motion voluntarily to dismiss his
pending motions for injunctive relief and going on to reach
the merits of his claim. Kessler therefore asks us to vacate the
Board’s decision so he is not collaterally estopped from filing
a complaint in the district court “to compel BNSF to retrieve
the locomotive if it has not in fact been scrap[p]ed, ... [to]
order BNSF to find another locomotive that is similar to [that
sold], or [to] provide ... compensatory and punitive damages.”
Under 49 U.S.C. § 11702, the Board may also bring a civil action
“to enjoin a rail carrier from violating §§ 10901 through 10906.”
Kessler has not sought such an action, nor does it appear a Board
decision in that regard would be subject to judicial review. See 5
U.S.C. § 701(a)(2) (exempting from review actions committed by
law to an agency’s discretion).
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Kessler’s concern is ill-founded. Kessler will not be able
to obtain an order compelling BNSF to retrieve his
locomotive regardless whether we vacate the Board’s
decision: the locomotive has been sold at auction.
Accordingly, as a practical matter, damages are the only form
of relief against BNSF still available to Kessler. See 49 U.S.C
§§ 11704 (a carrier “is liable for damages sustained” as a
result of a violation of the ICCTA), 11706 (permitting a civil
suit for “actual loss or injury” to property shipped pursuant to
a bill of lading); see also Rymes Heating Oils, Inc. v.
Springfield Terminal Ry., 358 F.3d 82, 89 (1st Cir. 2004)
(Ҥ 11704(b) clearly provides a damages action for a direct
statutory violation of the ICCTA itself”) (emphasis added). In
that regard, the Board’s order expressly states, “Kessler may
yet pursue his claim that BNSF violated its common carrier
duty” by filing with the Board a complaint for “appropriate
damages.” STB Decision, at 6. If the Board’s order does not
prevent Kessler from seeking damages from the Board, we
fail to see how it would prevent him from seeking that same
relief from a district court. See 49 U.S.C. § 11704(c)(1) (a
person injured as a result of a carrier’s violation of the Act
“may file a complaint with the Board under § 11701(b) ... or
bring a civil action”). Because vacating the Board’s decision
would not provide Kessler with the relief he seeks, a ruling
upon the propriety of the Board’s decision would be no more
than advisory. See Chicago & S. Air Lines v. Waterman S.S.
Corp., 333 U.S. 103, 113–14 (1948) (“This Court early and
wisely determined that it would not give advisory opinions”).
III. Conclusion
For the foregoing reasons, the petition for review is
Dismissed.