Carpenter v. Mineta

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT E. CARPENTER, 
Petitioner,
v.
No. 04-71221
NORMAN Y. MINETA, Secretary of
Transportation; JOSEPH H.  FRA No.
EQAL97-48
BOARDMAN,* Federal Railroad
Administrator; FEDERAL RAILROAD OPINION
ADMINISTRATION; DEPARTMENT OF
TRANSPORTATION,
Respondents.

On Petition for Review of an Order of the
Federal Railroad Administration

Argued and Submitted
November 15, 2005—San Francisco, California

Filed December 29, 2005

Before: Jerome Farris, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Farris

*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we have
substituted the current Federal Railroad Administrator for his predecessor
as a named respondent.

16763
16766 CARPENTER v. MINETA

COUNSEL

Lawrence M. Mann, Bethesda, Maryland, for the petitioner.

Colleen A. Brennan, Department of Transportation, Washing-
ton, DC, for the respondents.
 CARPENTER v. MINETA 16767
OPINION

FARRIS, Circuit Judge:

Petitioner challenges the Federal Railroad Administration’s
decision that he was properly denied certification as a loco-
motive engineer by his employer-railroad. The FRA Adminis-
trator upheld a prior administrative decision that concluded
that there was no authority under the administrative dispute
resolution regulations to order Petitioner retrained and
retested or certified as an engineer. Petitioner disputes this
conclusion and also claims that the FRA erred by failing to
reach several of his allegations. Last, Petitioner asserts due
process violations resulting from the denial of certification
and the length of the administrative review. We deny the peti-
tion for review.

I

In 1991 the Federal Railroad Administration, an agency of
the Department of Transportation, issued a final rule regard-
ing the training and certification of locomotive engineers pur-
suant to the Federal Railroad Safety Act of 1970, Pub. L. No.
91-458, 84 Stat. 971 (1970) (FRSA) (codified at 49 U.S.C.
§ 20101 et seq.). This rule, as subsequently amended, is codi-
fied in 49 C.F.R. Part 240. With the purpose of ensuring rail-
way safety, these regulations require individual railroads to
adopt training and certification programs that meet the mini-
mum requirements of Part 240. 49 C.F.R. §§ 240.1, 240.101.
With respect to new engineer candidates, the regulations
require a course of training as well as success on both knowl-
edge and skills tests before a railroad may issue a certifica-
tion. See 49 C.F.R. §§ 240.123, 240.125, 240.127, 240.203.
The FRA does not actively participate in engineer testing or
certification, but administers the regulation through approval
and monitoring of individual railroads’ programs, including
their training and testing regimens. See 49 C.F.R. § 240.103;
see also 49 U.S.C. § 20135(b).
16768 CARPENTER v. MINETA
Petitioner Robert E. Carpenter is a conductor for the Bur-
lington Northern and Santa Fe Railway Company. In 1991 he
entered Burlington Northern and Santa Fe’s FRA approved
locomotive engineer training and certification program. To
become certified as a locomotive engineer, the railroad
requires a minimum average score of 90% on two simulator-
based skills tests. In September 1993 Petitioner was adminis-
tered these skills tests but achieved an aggregate score of
89.76%. A month later Petitioner failed another skills test
with a score of 69.34%.1 As a result of these unsuccessful
examinations the railroad denied Petitioner certification as a
locomotive engineer.

The FRSA and the FRA’s implementing regulations were
enacted to improve railway safety, in part by ensuring that
locomotives are only operated by qualified and safe engi-
neers. The regulations were not designed to affect the rela-
tionships between railway companies and their labor force.
See, e.g., 49 U.S.C. § 20110; 49 C.F.R. §§ 240.1(a), 240.5(c)-
(f). Despite this focus, Subpart E of 49 C.F.R. Part 240 estab-
lishes a limited three-level dispute resolution mechanism in
which a person denied engineer certification may obtain a
fresh determination by the FRA of whether a railroad’s deci-
sion was correct. See 49 C.F.R. §§ 240.401-240.411. The
FRA has delegated responsibility for hearing initial petitions
to the Locomotive Engineer Review Board (LERB). 49
C.F.R. § 240.401. A petitioner dissatisfied with an LERB
decision has the right to a re-hearing before a “presiding offi-
cer” where discovery, testimony, and argument are permitted.
49 C.F.R. §§ 240.407, 240.409. The task of the presiding offi-
cer is not to review the LERB decision, but to determine de
novo whether a candidate is qualified and whether a railroad’s
denial of certification was correct. See 49 C.F.R.
§ 240.409(c), (q). An adverse decision of a presiding officer
1
The final test also resulted in an automatic failure for failure of a
required element.
 CARPENTER v. MINETA 16769
may be appealed to the FRA Administrator. 49 C.F.R.
§ 240.411.

Carpenter petitioned for review of his employer-railroad’s
decision to deny him engineer certification. In September
1996 the LERB, without deciding whether the denial was cor-
rect, ordered Burlington Northern and Santa Fe to comply
with 49 C.F.R. § 240.219, which required it to inform Carpen-
ter of the basis of his failing scores and provide him an oppor-
tunity to respond. In January 1997, after several letters to
Carpenter, Burlington Northern and Santa Fe again denied
him certification. Carpenter then filed a second petition with
the LERB in July 1997. The LERB decided that the railroad
had now satisfied the notification requirement and that the
denial of certification was correct.

Carpenter petitioned for re-hearing and in January 1998 the
case was opened before a presiding officer. Carpenter claimed
that Burlington Northern and Santa Fe’s training program and
instructors were inadequate, alleged that he was tested on a
flawed simulator, sought a declaration that he passed the skills
test, and requested that the presiding officer order retraining
and retesting or certification. At this point, a long litigation
process ensued.2 Ultimately, in October 2003, the presiding
officer dismissed the petition, concluding that he had no
authority under the Part 240 regulations to order the remedial
2
In February 1998 the presiding officer established a schedule for clari-
fying issues and initiating discovery. In March 1998 Carpenter requested
discovery of documents and depositions from Burlington Northern and
Santa Fe. The railroad was slow in its discovery production and in June
1999 Carpenter moved for sanctions. The presiding officer ordered the
railroad to comply. At this point, discovery proceeded without complaint
through July 2001. The parties filed a Joint Statement of Issues for Trial
in February 2002 and, at the request of the hearing officer, a Joint State-
ment of Issues for Pre-Trial in March 2002. Briefing of the Pre-Trial
issues continued through June 2002, but the FRA failed to file its brief in
a timely fashion, delaying the proceedings by one year and one month
until May 2003.
16770 CARPENTER v. MINETA
relief requested or to consider the adequacy of Burlington
Northern and Sante Fe’s certification program. Carpenter
appealed this decision to the FRA Administrator who, in Feb-
ruary 2004, affirmed the presiding officer.

II

The FRA Administrator’s decision to affirm the presiding
officer constituted final agency action. See 49 C.F.R.
§ 240.411(e). We have jurisdiction to review this decision
pursuant to 28 U.S.C. § 2342(7) and 49 U.S.C. § 20114(c).

We will reverse an agency decision that is “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); see also CHW W. Bay v.
Thompson, 246 F.3d 1218, 1223 (9th Cir. 2001). Despite
necessitating a searching review of the record, “the ultimate
standard of review is a narrow one.” Morongo Band of Mis-
sion Indians v. FAA, 161 F.3d 569, 573 (9th Cir. 1998). In
reaching a decision, however, we must give substantial defer-
ence to an agency’s reasonable interpretation of its own regu-
lations. Providence Health System-Wash. v. Thompson, 353
F.3d 661, 665 (9th Cir. 2003) (“[T]he agency’s interpretation
must be given controlling weight unless it is plainly erroneous
or inconsistent with the regulation.”). We review Petitioner’s
due process claims de novo. See 5 U.S.C. § 706(2)(B);
Gonzalez-Julio v. INS, 34 F.3d 820, 823 (9th Cir. 1994).

III

Petitioner first asserts that the presiding officer and FRA
Administrator are vested with power by the FRSA and the
Part 240 dispute resolution regulations to order his employer-
railroad to retrain and retest him, or simply to certify him as
a locomotive engineer. The FRA insists that its remedial pow-
ers are narrow and do not embrace the relief that Carpenter
requests, whatever the merits of his petition. Consequently, it
argues, the presiding officer and FRA Administrator did not
 CARPENTER v. MINETA 16771
err in dismissing Carpenter’s appeal on this ground. The lan-
guage and purpose of the regulations and statutory scheme
demonstrate the reasonableness of the presiding officer and
FRA Administrator’s interpretation. We agree that the FRA’s
remedial powers in the dispute resolution scheme do not per-
mit the relief sought.

[1] Under the dispute resolution regulations “[a]ny person
who has been denied certification . . . and believes that a rail-
road incorrectly determined that he or she failed to meet the
qualification requirements of this regulation when making the
decision to deny . . . certification, may petition the Federal
Railroad Administrator to review the railroad’s decision.” 49
C.F.R. § 240.401(a). Upon de novo re-hearing before a pre-
siding officer, the petitioning party bears the burden of prov-
ing “that the railroad’s decision to deny certification . . . was
incorrect.” 49 C.F.R. § 240.409(c), (q) (emphasis added). At
the close of this proceeding the presiding officer is required
to prepare a written decision containing “the findings of fact
and conclusions of law, as well as the basis for each concern-
ing all material issues of fact or law presented on the record.”
49 C.F.R. § 240.409(t)-(u).

[2] The plain language of the dispute resolution regulations
makes clear that the presiding officer must decide anew
whether a railroad correctly determined that a petitioner failed
to meet the qualifications for certification as a locomotive
engineer. The regulations are silent, however, as to any pow-
ers possessed by the presiding officer to remedy an incorrect
railroad determination. Petitioner interprets this silence as a
lack of restriction on the otherwise plenary power of the pre-
siding officer to issue remedial orders curing incorrect rail-
road decisions, including the power to order retraining and
retesting, and even the power to order certification as a loco-
motive engineer. In support of this position, Petitioner cites
the FRA’s broad enforcement powers under 49 U.S.C.
§ 20111 and 49 C.F.R. § 240.11 to assess civil penalties, issue
compliance and emergency orders, and impose injunctions.
16772 CARPENTER v. MINETA
He also points to the LERB’s first decision in this case, which
ordered the railroad to comply with 49 C.F.R. § 240.219, a
procedural requirement that railroads inform an unsuccessful
applicant of the reasons for denying certification and provide
an opportunity to respond prior to denial, as an example of the
FRA exercising remedial powers similar to those he seeks in
his second petition. Finally, Petitioner relies heavily on 49
C.F.R. § 240.403(b)(4), which requires a person seeking
review by the LERB to explain the “remedial action sought.”

[3] Petitioner’s arguments are not persuasive. It is a basic
principle of administrative law that agencies must act within
their regulations, have no powers not expressly granted, and
may not exceed their statutory power to issue sanctions or
orders. See, e.g., 5 U.S.C. § 558(b) (“A sanction may not be
imposed or a substantive rule or order issued except within
jurisdiction delegated to the agency and as authorized by
law.”); Defenders of Wildlife v. EPA, 420 F.3d 946, 959 (9th
Cir. 2005) (“Agency decisions may not, of course, be incon-
sistent with the governing statute.” (citing 5 U.S.C.
§ 706(2)(A))); Gill v. INS, 666 F.2d 390, 392 (9th Cir. 1982)
(noting the “general principle that an agency is to be held to
the terms of its regulations” (quoting United States v. Cole-
man, 478 F.2d 1371, 1374 (9th Cir. 1973)). It is not unreason-
able for an agency to interpret regulatory silence as a restraint
on remedial power.

[4] Furthermore, while the FRA does have civil enforce-
ment powers, including the power to order compliance with
safety regulations, the FRA did not explicitly delegate this
power to the presiding officer. See 49 C.F.R. §§ 240.11,
240.407-240.409. It is not unreasonable for the FRA to inter-
pret this regulatory structure as limiting its power to order
specific remedies in individual dispute resolution cases, espe-
cially in light of the statutory and regulatory purposes, dis-
cussed infra.3 Contrary to Petitioner’s urgings, we are
3
The FRA has also been consistent in declining to provide specific rem-
edies. At oral argument the parties stated that they were unaware of any
instance where the agency had granted the relief requested by Petitioner.
 CARPENTER v. MINETA 16773
unwilling to read the general enforcement authority of an
agency that also administers a limited dispute resolution
scheme as a grant of unrestricted power to provide any reme-
dial relief in individual cases. This is not to say that it would
be unreasonable for the FRA to interpret the regulations as
permitting certain orders in individual cases, for example that
the LERB can order a railroad to comply with a procedural
rule, as it did in Carpenter’s first petition, it is just not unrea-
sonable for it to decline to do so.

[5] Petitioner next contends that, because he is required to
“[e]xplain the nature of the remedial action sought” in an ini-
tial petition for review before the LERB, there is authority in
the dispute resolution regulations to grant the remedial relief
he requests. 49 C.F.R. § 240.403(b)(4). He argues that any
interpretation to the contrary is unreasonable because it ren-
ders meaningless a clause of the dispute resolution regula-
tions, something that ought to be avoided in statutory and
regulatory interpretation. However, the FRA, and LERB as its
delegate, do not interpret the regulations so as to eliminate all
remedial power. For example, the FRA has stated that the
LERB has the power to order a railroad to conduct further
fact-finding. See 58 Fed. Reg. 18,982, 19,001 (Apr. 9, 1993)
(asserting that the power of the LERB includes “returning the
case to the railroad for additional fact finding”). Additionally,
as discussed supra, the LERB apparently exercises the power
to order compliance with procedural regulations. Where the
FRA retains some remedial power, this clause is not superflu-
ous. Whether Petitioner’s interpretation of this clause, and its
effect on the powers of the FRA, is a reasonable construction
of the regulations is not the question. Considering the regula-
tions as a whole, we cannot say that the existence of this sin-
gle clause is sufficient to render the FRA’s interpretation
unreasonable and due no deference.

The FRA’s interpretation is also supported by its fidelity to
the purposes of the FRSA and the Part 240 regulations: arms-
length oversight of private railroad certification and railway
16774 CARPENTER v. MINETA
safety. Congress required the Secretary of Transportation to
adopt regulations for certifying locomotive engineers that
would be carried out by approval of individual railroads’
training and certification programs. 49 U.S.C. § 20135 (man-
dating that the certification program “shall be carried out
through review and approval of each railroad carrier’s opera-
tor qualification standards”). The regulations confirm that
training and certification is at the discretion of the railroads,
subject to initial approval of their program. See 49 C.F.R.
§ 240.101; 49 C.F.R. § 240, App. B (commenting that
“[s]ection 240.127 provides a railroad latitude in selecting the
design of its own testing and evaluation procedures” and that
“[r]ailroads commenting on the proposed rule . . . did con-
vince FRA that they should be given more discretion to for-
mulate the design of their own programs”). If the power to
compel retraining and retesting or to certify an engineer were
read into the dispute resolution scheme, railroads would be
prevented from creating their own remedies for incorrect
denials of certification or would lose their power to certify
entirely. The FRA’s interpretation is more consistent with
arms-length regulation because railroads have a chance to
craft remedies that better meet their needs and obligations to
employees.

[6] The principal rationale behind the FRSA and FRA regu-
lations concerning engineer certification is to ensure railway
safety. See 49 U.S.C. § 20101; 49 C.F.R. § 240.1. While the
dispute resolution mechanism provides some protection to
railroad workers against arbitrary denials of certification, it
cannot be interpreted to do so at the expense of railway safety.
Certainly the power to certify a person who does not meet
minimum qualifications undermines railway safety.

Even though no remedial relief is available in this limited
dispute resolution proceeding, railroad employees wrongly
denied engineer certification are not left without any remedy.
Both sides agree that an aggrieved railroad employee can seek
relief through the Railway Labor Act, a statute addressed spe-
 CARPENTER v. MINETA 16775
cifically towards labor rather than safety concerns. See 45
U.S.C. § 151 et seq.; see also 54 Fed. Reg. 50890, 50914-15
(explaining that “[r]esolution of some disputes concerning
day-to-day administration of a particular railroad’s program,
including the employment implications of the rule’s provi-
sions, would be left to the existing processes for dispute
adjustment developed under . . . the Railway Labor Act”). In
addition, most railroad employees are protected by collective
bargaining agreements, which may provide remedies for
wrongful termination or denials of advancement. Cf. 49
C.F.R. § 240.5(f) (“Nothing in this part shall be deemed to
abridge any additional procedural rights or remedies . . . that
are available under a collective bargaining agreement, the
Railway Labor Act, or . . . at common law.”).

[7] The presiding officer and FRA Administrator’s inter-
pretation that they have no power to order the relief sought is
reasonable and entitled to substantial deference. See Provi-
dence Health System-Wash., 353 F.3d at 664.

IV

Petitioner next contends that the presiding officer and FRA
Administrator erred by refusing to consider his allegations
that he received inadequate training and in dismissing his
claim without a finding that he had been correctly denied cer-
tification. Most of Carpenter’s allegations are outside the
scope of this limited dispute resolution proceeding. It was not
error to ignore them. The record reflects that the agency’s
findings reached the conclusion that denial of certification
was correct based on Petitioner’s test scores.

[8] A presiding officer is required to “find the relevant facts
and determine the correct application of this part to those
facts” and issue a written decision containing “the findings of
fact and conclusions of law, as well as the basis for each con-
cerning all material issues of fact or law presented on the
record.” 49 C.F.R. § 240.409(c), (u) (emphasis added). In
16776 CARPENTER v. MINETA
addition, the presiding officer has the power to (1) “regulate
the conduct of the hearing for the purpose of achieving a
prompt and fair determination of all material issues in contro-
versy” and (2) “limit evidentiary proceedings to any issues of
material fact as to which there is a genuine dispute.” 49
C.F.R. § 240.409(b)-(c).

[9] Petitioner argues that this language requires a presiding
officer to resolve all factual disputes presented in the record.
This argument is unavailing as the regulations should be
given their plain meaning. See, e.g., Bayview Hunters Point
Cmty. Advocates v. Metro. Transp. Comm’n, 366 F.3d 692,
698 (9th Cir. 2004). The plain meaning of the regulations is
that a presiding officer must find, and apply the regulations to,
only those facts that are relevant to the proceeding. In so
doing, a presiding officer need only consider and explain facts
in the record material to the relevant factual and legal find-
ings.

[10] To determine de novo whether the denial of certifica-
tion was correct, the relevant issue is whether Petitioner failed
to meet minimum qualifications. The only facts in the record
material to this finding are those related to his skills tests. His
allegations regarding the railroad’s training program, instruc-
tors, or notification procedures are not relevant. The refusal to
address those allegations was not an abuse of discretion.

[11] With respect to Petitioner’s qualifications, the presid-
ing officer found that “there does not seem to be a dispute as
to whether Hearing Petitioner Carpenter did, in fact, fail his
simulator tests.” Although this is not an explicit statement that
Burlington Northern and Sante Fe’s denial of certification was
correct, that conclusion is supported by the record evidence
that Carpenter narrowly missed a passing score on his first
examination and failed a second skills examination by a sub-
stantial margin. In an attempt to counter the obvious inference
from his failing scores, Carpenter has asserted that the simula-
tor on which he was tested was not accurate and, therefore,
 CARPENTER v. MINETA 16777
his failing scores could not be relied upon to conclude, as the
railroad and presiding officer did, that he lacked the minimum
skill qualifications. This is merely a bare allegation of simula-
tor inaccuracy and is not relevant in the absence of some
showing that different treatment was afforded to other Bur-
lington Northern and Sante Fe engineer candidates. We are
satisfied that all relevant facts were found in this case and that
there was no error.

V

Petitioner asserts several due process claims, including that
he was deprived of protected property and liberty interests in
engineer certification and employment without due process,
and that the cumulative length of the administrative proceed-
ings violates due process. We reject the argument.

[12] Due process requires notice and an opportunity to be
heard. See, e.g., Bd. of Regents of State Coll. v. Roth, 408 U.S.
564, 570 n.7 (1972). Assuming without deciding that Carpen-
ter has a protected property or liberty interest, he has had the
benefit of three levels of administrative review in which he
has conducted discovery and presented his claims on the mer-
its but was found to have been correctly denied locomotive
engineer certification. Petitioner has exercised to its fullest a
dispute resolution process designed for a very limited pur-
pose. Even if the length of the administrative process sug-
gested a due process violation, the agency has reached a final
decision and there is no further relief available.

Petition for review DENIED.