Nebraska State Legislative Board v. Slater

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 00-2193
___________

Nebraska State Legislative Board, *
United Transportation Union, *
*
Petitioner, *
*
v. *
*
Rodney Slater, Secretary of *
Transportation; United States * Petition for Review
Department of Transportation; * of an Order of the
Jolene Molitoris, Federal Railroad * Federal Railroad Administration
Administrator; Federal Railroad *
Administration, *
*
Respondents. *
*
Association of American Railroads, *
*
Intervenor on Appeal. *
___________

Submitted: December 14, 2000

Filed: April 2, 2001
___________

Before McMILLIAN and MURPHY, Circuit Judges, and BOGUE,1 District Judge.
___________

McMILLIAN, Circuit Judge.

1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
 The Nebraska State Legislative Board, United Transportation Union (UTU or
the union) petitions for review of an order of the Federal Railroad Administration
(FRA). We dismiss the petition for review for lack of jurisdiction.

BACKGROUND

In 1988, Congress enacted the Rail Safety Improvement Act, which required the
Secretary of Transportation to establish a licensing or certification program for "any
operator of a locomotive." 49 U.S.C. § 20135(a).2 In December 1989, FRA, as the
delegate of the Secretary, published proposed regulations implementing a certification
program. The term "locomotive operator" was defined as "any person who moves a
locomotive or group of locomotives regardless of whether they are coupled to other
rolling equipment." 54 Fed. Reg. 50,890, 50,925 (Dec. 11, 1989). As relevant here,
the FRA excluded from the definition: "(1) A person who moves a locomotive or group
of locomotives within the confines of a locomotive repair or servicing area . . .; or (2) A
person who moves a locomotive or group of locomotives for distances of less than 100
feet . . . for inspection or maintenance purposes." Id. In June 1991, FRA published
the final regulation. 56 Fed. Reg. 28,228 (June 19, 1991) (codified at 42 C.F.R. §
240.7). After review of the comments, the only change FRA made to the proposed
definition was to substitute the more familiar term "locomotive engineer" for the term
"locomotive operator," explaining that the change did not affect the scope of the
definition. Id. at 28,229.

In October 1992, UTU wrote FRA that the exclusions had eliminated union jobs
at the Union Pacific (UP) Bailey Yard facility at North Platte, Nebraska. The union

2
Prior to 1994, 49 U.S.C. § 20135(a) was codified at 45 U.S.C. § 431(i)(1).
Because there were no substantive changes in the recodification and the parties cite to
49 U.S.C. § 20135(a), we will also do so.

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also raised safety concerns about the subsection (1) exclusion, requesting review of the
regulation and enforcement of the 100-foot limitation in subsection (2). After
investigation of the facility, in November 1992, FRA notified the union that UP had
not violated § 240.7 and that accident data did not support its safety concerns.

In July and August of 1994, UTU regional and local officials wrote FRA that
UP's use of non-certified employees to move locomotives at Bailey Yard was unsafe.
After investigation, by letters of November and December 1994, FRA informed the
UTU officials that it found no violations of the regulation, noting UP had a training
program for the non-certified employees.

In January 1996, UTU complained to FRA about UP's training program. After
investigation, in July 1996 FRA notified the union that UP had not changed its training
requirement and that it was in compliance with § 240.7. UTU requested
reconsideration, asserting UP was not in compliance with subsection (1) of the
regulation. On reconsideration, FRA again found no violation. UTU then sought a
"final agency decision on this most important safety matter." In February 1997, the
FRA Administrator upheld the decision and UTU did not petition for review.

On June 12, 1998, UTU wrote FRA that UP had breached a July 1997
agreement concerning the use of non-certified employees to move locomotives,
asserting UP's practices violated the regulation and were unsafe. By letter of March 17,
2000, FRA notified UTU that investigation had revealed no regulatory violations or
safety concerns and that the training of the non-certified employees was adequate.

DISCUSSION

Pursuant to the Hobbs Act, 28 U.S.C. § 2344, which requires a party aggrieved
by an agency action to file a petition for review in the court of appeals within sixty days
of a final order, on May 9, 2000, UTU petitioned this court for review of the March 17

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letter. The sole issue presented was whether FRA had the statutory authority under 49
U.S.C. § 20135 to "exempt some operators of a locomotive from licensing and
certification requirements." The Secretary argues that this court lacks jurisdiction to
review the claim because UTU's petition for review is untimely.

UTU does not dispute that the "[t]imeliness of a petition seeking review . . . 'is
a jurisdictional requirement that cannot be modified or waived by this court.'" Cosby
v. Burlington Northern, Inc., 793 F.2d 210, 212 (8th Cir. 1986) (quoting Cartersville
Elevator, Inc. v. ICC, 724 F.2d 668, 672 (8th Cir. 1984)). Relying on Tri-State Motor
Transit Co. v. ICC, 739 F.2d 1373, 1375 n.2 (8th Cir.1984) (Tri-State), cert. denied,
472 U.S. 1027, 1032 (1985), UTU argues its petition is timely, even though it was not
filed within sixty days of issuance of the regulation in 1991, because the petition was
filed within sixty days of the March 17 letter and raises a substantive, not a procedural,
challenge.

We agree with the Secretary that UTU's reliance on Tri-State is misplaced. It
is true that in Tri-State this court held that "the Hobbs Act does not bar judicial review
on the substantive validity of [a] rule, even if more than sixty days have elapsed since
its issuance." Id. However, we explained "'administrative rules and regulations are
capable of continuing application; limiting the right of review of the underlying rule
would effectively deny many parties ultimately affected by a rule an opportunity to
question its validity.'" Id. (quoting Texas v. United States, 730 F.2d 409, 415 (5th Cir.
1984), cert. denied, 472 U.S. 1032 (1985)). In other words, "the calendar does not run
until the agency has decided a question in a manner that reasonably puts aggrieved
parties on notice of the rule's content." RCA Global Communications, Inc. v. FCC, 758
F.2d 722, 730 (D.C. Cir. 1985). Here, as the Secretary argues, UTU had ample notice
and opportunity to challenge the application of § 240.7 well before the March 17 letter.
Indeed, pursuant to UTU's request for a "final agency decision" in the matter, the FRA
Administrator issued a decision in February 1997 and UTU did not seek review. We

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note that in its opening brief UTU did not assert that the March 17 decision was
factually incorrect or misapplied § 240.7.3

Apparently realizing the weakness of its Tri-State argument, UTU claims it is not
challenging § 240.7, but only FRA's statutory authority to exempt certain employees
from certification requirements. However, UTU's request for relief belies its claim. In
its petition, UTU requests that this court order that only certified employees operate
locomotives, which, if granted, would void the regulation. In Cosby v. Burlington
Northern, Inc, 793 F.2d at 211-12, we rejected a similar attempt to circumvent the
sixty-day limitations period of the Hobbs Act. In that case, we dismissed a petition as
untimely because, despite the petitioners' characterization of their action, the requested
relief would have required this court to reverse an agency order for which the
limitations period of the Hobbs Act had expired. Id. We also note ICC v. Brotherhood
of Locomotive Eng'rs, 482 U.S. 270, 281 (1987), in which the Supreme Court held that
orders refusing clarification and reconsideration were nonreviewable and characterized
motions requesting such orders as "devices" by which a party could achieve perpetual
review of an agency order in disregard of the Hobbs Act. See also United Transp.
Union-Illinois Legislative Bd. v. Surface Transp. Bd., 132 F.3d 71, 76 (D.C. Cir. 1998)
(holding Hobbs Act barred review of agency position in response to unsolicited
comments reaffirming prior position); Kennecott Utah Copper Corp. v. United States
Dep’t of the Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996) (holding statutory limitations
period barred review of agency response to settled matter even if agency solicited
comments on unsettled matter); Edison Elec. Inst. v. ICC, 969 F.2d 1221, 1228-29
(D.C. Cir. 1992) (rejecting petitioner's untimely challenge to agency's statutory

3
In its reply brief, UTU attempts to raise factual issues concerning the March 17
letter. However, "[c]laims not raised in an initial brief are waived, and we generally
do not consider issues raised for the first time on appeal in a reply brief." Mahaney v.
Warren County, 206 F.3d 770, 771 n.2 (8th Cir. 2000) (per curiam) (internal citation
omitted). "We see no reason to depart from our rules in this case." Id.

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authority because application of rule did not apply to new circumstance). Moreover,
contrary to UTU's assertion, the March 17, 2000, letter did not "permit" the use of
non-certified employees to move locomotives at Bailey Yard. Rather, § 240.7 did so.

UTU's reliance on Leedom v. Kyne, 358 U.S. 184 (1958) (Kyne), is also
misplaced. In Kyne, the Supreme Court held that a district court had jurisdiction to
review a non-final agency order "made in excess of its delegated powers and contrary
to a specific [statutory] prohibition." Id. at 188.4 In addition to the fact that Kyne
involved district court review, there are other differences between this case and Kyne.
"[C]entral to [the Supreme Court's] decision in Kyne was the fact that[,]" in the absence
of review, the agency's action "would wholly deprive the [plaintiff] of a meaningful and
adequate means of vindicating its statutory rights." Board of Governors v. MCorp Fin.,
Inc., 502 U.S. 32, 43 (1991). In enacting § 240.7, FRA did nothing to deprive UTU
of an opportunity to seek judicial review of the regulation. As discussed above, the
union had "a meaningful and adequate opportunity for judicial review of the validity"
of § 240.7, id., but failed to do so in a timely fashion.

Moreover, in Kyne, the agency action was "an attempted exercise of power that
[Congress] had specifically withheld." 358 U.S. at 189. As a general rule, courts
"have interpreted Kyne as sanctioning [review] in a very narrow situation in which
there is a 'plain' violation of an unambiguous and mandatory provision of the statute."
American Airlines, Inc. v. Herman, 176 F.3d 283, 293 (5th Cir. 1999). Thus, under
Kyne, "review of an 'agency action allegedly in excess of authority must not simply
involve a dispute over statutory interpretation.'" Id. (quoting Kirby Corp. v. Pena, 109
F.3d 258, 269 (5th Cir. 1997)). Nor will a mere allegation of ultra vires action suffice.

4
In Leedom v. Kyne, 358 U.S. 184, 188 (1958), the National Labor Relations
Board had included non-professional employees in a bargaining unit in violation of a
clear and unambiguous statutory mandate requiring professional employees to vote on
the inclusion of such employees.

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West v. Bergland, 611 F.2d 710, 717, 720 (8th Cir. 1979) (Bergland), cert. denied, 449
U.S. 821 (1980). In Bergland, although an appellant had characterized his challenge
to a regulation as an ultra vires one, we disagreed, holding it was merely one of
statutory construction. Id. at 717. Such is also the case here. FRA's decision to
exempt certain employees from certification "is by no means a clear departure from
[the] statutory mandate or an abridgment of [UTU's] statutory right." Id. at 718
(internal quotations omitted).

In sum, in the circumstances of this case, permitting judicial review would thwart
Congress's intent to "impart finality into the administrative process, thereby conserving
administrative resources and protecting the reliance interests of those who might
conform their conduct to the administrative regulations." Illinois Cent. Gulf R.R. v.
ICC, 720 F.2d 958, 960 (7th Cir. 1983) (quoting Natural Res. Def. Council v. NRC,
666 F.2d 595, 602 (D.C. Cir. 1981)).

Accordingly, we dismiss UTU's petition for review for lack of jurisdiction.5

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

5
Despite the jurisdictional defect, FRA invites UTU to petition it to amend
§ 240.7 or seek revision through its advisory committee. Brief for Resp't at 30 n.10.

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