Pejepscot Industrial Park, Inc. v. Maine Central Railroad

United States Court of Appeals
For the First Circuit

No. 99-2016

PEJEPSCOT INDUSTRIAL PARK, INC. d/b/a GRIMMEL INDUSTRIES,

Plaintiff, Appellant,

v.

MAINE CENTRAL RAILROAD CO., SPRINGFIELD TERMINAL RAILWAY CO.,
GUILFORD TRANSPORTATION INDUSTRIES, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Stahl, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.

James T. Kilbreth, with whom Rita H. Logan and Verrill & Dana, LLP
were on brief, for appellant.
Eric L. Hirschhorn, with whom Winston & Strawn, Glen L. Porter,
Thad B. Zmistowski, and Eaton, Peabody, Bradford & Veague, P.A. were on
brief, for appellee.

June 23, 2000
 LYNCH, Circuit Judge. In 1995, Congress enacted the ICC

Termination Act (ICCTA),1 which abolished the 108-year-old

Interstate Commerce Commission and substantially deregulated the

rail and motor carrier industries. See H.R. Rep. No. 104-311,

at 82 (1995), reprinted in 1995 U.S.C.C.A.N. 793, 793. In the

ICC's place, the ICCTA established the Surface Transportation

Board (STB) within the Department of Transportation. See 49

U.S.C. § 701(a).

The central question in this case is whether the federal

district courts have jurisdiction over a shipper's claim that a rail

carrier has violated the ICCTA provision that requires carriers to

provide service upon reasonable request. See 49 U.S.C. § 11101(a)

("A rail carrier providing transportation or service subject to

the jurisdiction of the [STB] under this part shall provide the

transportation or service on reasonable request."). The district court

held that the STB's jurisdiction over such claims is exclusive, and

thus the federal courts have no jurisdiction, except to enforce certain

orders issued by the STB. See Pejepscot Indus. Park, Inc. v. Maine

Cent. R.R. Co., 59 F. Supp. 2d 109, 114-15 (1999). Accordingly, the

court dismissed with prejudice the shipper's ICCTA claim for lack of

subject matter jurisdiction and declined to exercise supplemental

1 Pub. L. No. 104-88, 109 Stat. 803 (codified at
scattered sections of U.S.C., including 49 U.S.C. §§ 10101-
16106).

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jurisdiction over its state law claims. See id. at 115. We hold that

the district court has subject matter jurisdiction over the shipper's

ICCTA claim, and that it should stay that claim while referring it to

the STB under the doctrine of primary jurisdiction.

I.

For the purpose of determining whether the district

court has subject matter jurisdiction, we take the well-pleaded

allegations in plaintiff's complaint as true. See Puerto Rico

Tel. Co. v. Telecommunications Reg. Bd., 189 F.3d 1, 7 (1st Cir.

1999). Founded in 1992, plaintiff Pejepscot Industrial Park,

Inc. (d/b/a Grimmel Industries) engages in the business of

salvaging, selling, and shipping scrap metal. Grimmel's

facility in Topsham, Maine is connected by a 3,000-foot spur

railroad track (the Pejepscot Spur Line) to the Lewiston

Industrial Track, the main railroad track in the area.

In February 1991 one of the defendants, Maine Central

Railroad ("MEC," a common carrier providing railroad freight

services), executed a deed granting sections of the Lewiston

Industrial Track to the State of Maine, including the Lewiston

Lower Road Branch, the part of the main line to which the

Pejepscot Spur Line connects. In conveying the Lewiston Lower

Road Branch, however, MEC expressly reserved "a certain parcel

of land in Topsham known as the 'Pejepscot Spur Line.'"

(According to the complaint, MEC does not own the land over

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which the Pejepscot Spur Line runs; that land is owned by

Grimmel and its neighbor, the Eastbrook Timber Company.) It is

this spur line, and defendants' desire to rip it up and sell it

for scrap, that is at the heart of this case.
As part of the sale of portions of the Lewiston

Industrial Track, MEC entered into a freight easement agreement

with the State of Maine. The agreement provided that MEC

retained all of its rights and obligations under federal law to

provide common carrier freight service to shippers located on

the lines conveyed to the state.

By 1994, Grimmel was ready to begin shipping scrap

metal. The most efficient way to transport scrap metal is by

rail. Grimmel requested that the defendants (MEC, Springfield

Terminal Railway, which operates MEC's railroad, and their

common owner, Guilford Transportation Industries) provide common

carrier freight service to Grimmel's Topsham facility.

Defendants refused, claiming that no appropriate rail cars were

available. Grimmel shipped its material by different means for

a time, and then requested rail service again. This time,

defendants quoted Grimmel shipping rates, which Grimmel

accepted. Before Grimmel could actually begin shipping,

however, defendants again refused to provide service. Grimmel

later began negotiations with the State of Maine over repairs to

the Lewiston Lower Road Branch and the provision of service to

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Grimmel's facility in anticipation of MEC's formal abandonment

of rail service on the Lewiston Industrial Track line.
In June 1998, MEC filed with the STB a Notice of

Exemption for abandonment and discontinuance of service over the

Lewiston Industrial Track line. MEC represented that the state

already owned the Lewiston Lower Road Branch portion of the

line, and that the State of Maine, or a third party acting in

conjunction with it, would acquire the remainder of the line

and/or operating rights over it after it was abandoned. MEC

also maintained that no salvage operations would be undertaken

after abandonment -- that is, that the line would not be torn up

-- and that the abandonment would not affect carrier operations

in the area. The STB permitted MEC to abandon the line.
Defendants subsequently informed Grimmel that they

intend to rip up the Pejepscot Spur Line and sell it for scrap.

The state has agreed to upgrade the Lewiston Lower Road Branch,

provided Grimmel upgrades the Pejepscot Spur Line. Grimmel has

asked for MEC's permission to do so (at Grimmel's expense), but

MEC has refused to grant permission. MEC's refusal prevents

Grimmel from obtaining rail freight service.

II.

Grimmel filed a six-count First Amended Complaint in

the district court. Count I sought a declaration of ownership

rights of the Pejepscot Spur Line, while Count II sought an

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injunction to prevent defendants from destroying the spur or

interfering with Grimmel's right to repair, maintain, and use

it. Count III alleged that the defendants unlawfully refused to

provide rail service in violation of 49 U.S.C. § 11101(a), which

requires rail carriers to provide service to shippers on

reasonable request.

Count IV of Grimmel's complaint alleged that defendants

violated their duty to Grimmel as a third-party beneficiary of

the freight easement agreement between MEC and the State of

Maine. Counts V and VI alleged breach of contract and tortious

interference with business advantage and expectancies. Before

answering the complaint, defendants moved under Fed. R. Civ. P.

12(b)(1) to dismiss the action with prejudice for lack of

subject matter jurisdiction, or, in the alternative, to dismiss

the action without prejudice under the doctrine of primary

jurisdiction for all the issues within the special expertise of

the STB.

Grimmel's complaint asserted two bases of subject

matter jurisdiction: federal question jurisdiction under 28

U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. §

1367(a). The federal question identified was whether the

defendants' refusal to provide rail service to Grimmel (and

their planned destruction of the spur) had violated the ICCTA --

specifically, 49 U.S.C. § 11101(a). The district court held

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that the ICCTA gave the STB exclusive jurisdiction over

Grimmel's claim and granted defendants' motion to dismiss.
The STB's "[g]eneral jurisdiction" is described in 49

U.S.C. § 10501. Under § 10501(b),
[t]he jurisdiction of the [STB] over --
(1) transportation by rail carriers, and the
remedies provided in this part with respect
to rates, classifications, rules (including
car service, interchange, and other
operating rules), practices, routes,
services, and facilities of such carriers;
and
(2) the construction, acquisition,
operation, abandonment, or discontinuance of
spur, industrial, team, switching, or side
tracks, or facilities, even if the tracks
are located, or intended to be located,
entirely in one State,
is exclusive. Except as otherwise provided
in this part, the remedies provided under
this part with respect to regulation of rail
transportation are exclusive and preempt the
remedies provided under Federal or State
law.

49 U.S.C. § 10501(b) (emphasis added).

Read in isolation, this language appears to grant the

STB exclusive jurisdiction over any claim involving

"transportation by rail carriers," id. § 10501(b)(1) -- an

extremely broad category. However, despite the description in

§ 10501(b) of the STB's jurisdiction as "exclusive," other

sections of the ICCTA permit the filing of certain types of

suits in federal district court. See Pejepscot, 59 F. Supp. 2d

at 113. For example, 49 U.S.C. § 11705(a) establishes a three-

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year statute of limitations on civil actions by rail carriers to

recover payment for services provided; § 11705(b) establishes a

three-year statute of limitations on civil actions by shippers

to recover overcharges; and § 11706(d) authorizes civil actions

by shippers to recover under a receipt or bill of lading. See

id.; see also DeBruce Grain, Inc. v. Union Pac. R.R. Co., 983 F.

Supp. 1280, 1283-84 (W.D. Mo. 1997) (noting the limitations

periods in § 11705(a), (b), (e)), aff'd on other grounds, 149

F.3d 787 (8th Cir. 1998). It is difficult to reconcile these

provisions with the notion that the STB has exclusive

jurisdiction over all matters under the ICCTA.
The district court concluded that while these

provisions undermine the exclusivity of the STB's jurisdiction,

none of them were applicable to Grimmel's claim under § 11101(a)

for unlawful refusal to provide rail service. See Pejepscot, 59

F. Supp. 2d at 114. "By its plain language, [§ 10501(b)] awards

exclusive jurisdiction to the STB with respect to transportation

by rail carriers, including a carrier's obligations under

section 11101(a)." Id. at 113.
The district court rejected Grimmel's argument that

§ 10501(b) is a preemption provision only -- that it is intended

to preempt state law and other federal remedies, not to strip

the federal district courts of jurisdiction. The court

acknowledged that the last sentence of § 10501(b), which states

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that "the remedies provided under this part with respect to

regulation of rail transportation are exclusive and preempt the

remedies provided under Federal or State law," is a preemption

provision. Pejepscot, 59 F. Supp. 2d at 112 (internal quotation

marks omitted). The court focused, however, on the preceding

language, which states that the STB's jurisdiction over

"transportation by rail carriers, and the remedies provided in

this part with respect to rates, classifications, rules . . .,

practices, routes, services, and facilities of such carriers" is

"exclusive." Id. at 112-13 (internal quotation marks omitted).

The court held that this was not merely a preemption provision,

but a conferral of exclusive jurisdiction on the STB. See id.

at 114.2
Grimmel's strongest argument for concurrent

jurisdiction is based on § 11704(c)(1), which states:

A person may file a complaint with the Board
under section 11701(b) of this title or
bring a civil action under subsection (b) of
this section to enforce liability against a
rail carrier providing transportation
subject to the jurisdiction of the Board
under this part.

2 The district court also rejected Grimmel's argument
that 49 U.S.C. § 11704(a) and (c)(1) provide the court with
original jurisdiction over Grimmel's § 11101(a) claim. The
district court found § 11704(a) inapplicable because it governs
the enforcement of STB orders, and there was no existing STB
order that Grimmel could have had the court enforce. See
Pejepscot, 59 F. Supp. 2d at 113. Grimmel has wisely abandoned
its § 11704(a) argument on appeal.

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49 U.S.C. § 11704(c)(1) (emphasis added). The district court

acknowledged that "[a]t first blush, § 11704(c)(1) appears to

authorize a civil action in this court." Pejepscot, 59 F. Supp.

2d at 113. The court rejected this possible reading, however,

because it believed little of the STB's exclusive jurisdiction

under § 10501(b) would survive it. See id.; see also DeBruce

Grain, 983 F. Supp. at 1283. Instead, the court interpreted "to

enforce liability" in light of the entire statute to mean "to

enforce a determination previously made by the [STB]."

Pejepscot, 59 F. Supp. 2d at 113.3

Finally, the district court held that it could not

exercise supplemental jurisdiction under 28 U.S.C. § 1367(a)

over Grimmel's state law claims because of the absence of

federal subject matter jurisdiction. See Pejepscot, 59 F. Supp.

2d at 115 (citing, inter alia, United Mine Workers v. Gibbs, 383

3 Grimmel further argued that jurisdiction was
nonetheless proper under 28 U.S.C. § 1331, the general federal
question jurisdiction provision, and § 1337(a), which grants
district courts original jurisdiction over any proceedings
arising under any Act of Congress regulating commerce. The
district court correctly noted that the jurisdiction granted by
both of these general statutes can be precluded by another, more
specific statute -- and here, in its view, jurisdiction was
specifically precluded by the ICCTA. See Pejepscot, 59 F. Supp.
2d at 114-15. On appeal, Grimmel does not contend that § 1331
or § 1337(a) can confer jurisdiction if the ICCTA has removed
it.

-10-
U.S. 715, 725 (1966)). Grimmel's entire action was dismissed with

prejudice. See id. at 110.

III.

A. Standard of Review
The district court's ruling that it lacked subject

matter jurisdiction is subject to de novo review. See Puerto

Rico Tel. Co., 189 F.3d at 7. The party invoking federal court

jurisdiction bears the burden of proving its existence. See id.

The district court's decision not to exercise supplemental

jurisdiction is reviewed for abuse of discretion. See Vera-

Lozano v. International Broad., 50 F.3d 67, 70 (1st Cir. 1995).

B. Subject Matter Jurisdiction over the ICCTA Claim

1. Burdens
Grimmel argues that nothing in the ICCTA abrogates

federal district court jurisdiction over ICCTA claims, and so

jurisdiction exists under 28 U.S.C. §§ 1331 (federal question

jurisdiction) and 1337(a) (jurisdiction over civil actions

arising under any Act of Congress regulating commerce). As a

preliminary matter, Grimmel claims that once federal subject

matter jurisdiction has been established under §§ 1331 and 1337,

Congress can limit or remove it only by expressly stating its

intention to create exclusive jurisdiction in another court or

agency, citing Avery v. Secretary of HHS, 762 F.2d 158, 163 (1st

Cir. 1985) ("[A]bsent a clear statement to the contrary,

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legislation should not ordinarily be interpreted to oust a

federal court's equitable power, or its jurisdiction over a

pending case.").
Guilford replies that Grimmel bears the burden of

demonstrating subject matter jurisdiction, and cannot use a

presumption against the removal of such jurisdiction to avoid

its burden. Guilford claims that Avery is inapplicable here

because it involved a legislative attempt to intervene in a

group of specific, pending actions. Guilford is correct that

Avery is distinguishable. The ICCTA is in no sense an attempt

to "oust a federal court's . . . jurisdiction over a pending

case." Id. Grimmel cannot rely on any presumption of federal

court jurisdiction; it must carry its burden of proving that

subject matter jurisdiction exists. See Puerto Rico Tel. Co.,

189 F.3d at 7.

2. 49 U.S.C. § 10501(b)

Section § 10501(b), which describes the STB's general

jurisdiction, states without qualification that the STB's

jurisdiction over, inter alia, "transportation by rail carriers"

and the "operation, abandonment, or discontinuance of spur . .

. tracks" is "exclusive." 49 U.S.C. § 10501(b). In

interpreting this provision, however, we "will not look merely to

a particular clause in which general words may be used, but will take

in connection with it the whole statute . . . and the objects and

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policy of the law." Puerto Rico Tel. Co., 189 F.3d at 9 (quoting

Stafford v. Briggs, 444 U.S. 527, 535 (1980)) (alteration in original)

(internal quotation marks omitted). As the district court correctly

noted, later sections of the ICCTA strongly suggest that certain

actions may be filed in federal district court -- and that in

some areas the STB's jurisdiction is concurrent, not exclusive.

See Pejepscot, 59 F. Supp. 2d at 113 (citing §§ 11705(a), (b),

and 11706(d)). The question, therefore, is whether § 11704(c)(1)

grants the district court concurrent jurisdiction over Grimmel's

ICCTA claim.

3. 49 U.S.C. § 11704(c)(1)
Pointing to § 11704(c)(1), Grimmel argues that the

ICCTA on its face contemplates enforcement through civil actions

in federal district court. Subsection (c)(1) states:

A person may file a complaint with the Board
under section 11701(b) of this title or
bring a civil action under subsection (b) of
this section to enforce liability against a
rail carrier providing transportation
subject to the jurisdiction of the Board
under this part.

49 U.S.C. § 11704(c)(1) (Grimmel's emphasis).4 Grimmel claims

4 The "subsection (b)" referred to in the emphasized
phrase reads: " [a] rail carrier providing transportation subject
to the jurisdiction of the Board under this part is liable for
damages sustained by a person as a result of an act or omission
of that carrier in violation of this part." 49 U.S.C. §
11704(b).

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that this subsection demonstrates Congress's intent to authorize

concurrent STB and federal district court jurisdiction over

ICCTA claims.
In response, Guilford argues that the district court

properly viewed § 11704(c)(1) as only permitting a party to

bring a civil action to "enforce [a] liability" that has been

previously determined by the STB. Grimmel's proposed

construction, says Guilford, is inconsistent both with the role

Congress has assigned the STB and with the structure of the

ICCTA. To buttress its position, Guilford cites the argument

from the district court opinion in DeBruce Grain: if anyone

seeking damages from a rail carrier can proceed in district

court, "there will be nothing left of the Board's exclusive

jurisdiction." DeBruce Grain, 983 F.Supp. at 1283. Guilford

argues that while § 11704 provides remedies for violations of

the ICCTA, providing a remedy is not the same as granting

subject matter jurisdiction to the federal district courts. In

Guilford's view, § 10501(b) requires that the remedies provided

by § 11704 be pursued in the first instance before the STB.
Reading § 11704(c)(1) as Guilford urges -- as merely

permitting a party to bring a civil action to enforce a

liability previously determined by the STB -- presents a number

of problems. First, there is the plain language itself: "[t]he

words of the statute are the first guide to any interpretation

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of the meaning of the statute." Greebel v. FTP Software, Inc.,

194 F.3d 185, 192 (1st Cir. 1999). Subsection (c)(1) states

that "[a] person may file a complaint with the Board . . . or

bring a civil action under subsection (b) of this section to

enforce liability against a rail carrier." 49 U.S.C.

§ 11704(c)(1). The most natural reading of this language is

that it authorizes a person who has suffered damages as a result

of a rail carrier's violation of the ICCTA either to file a

complaint with the STB or to bring a civil action. See

Pejepscot, 59 F. Supp. 2d at 113. Guilford's suggestion that

"to enforce liability" should be understood as "to enforce [a]

liability [previously determined by an STB order]" requires a

significant leap from the subsection as written.
Furthermore, as Grimmel argues, this interpretation of

subsection (c)(1) would render § 11704(c)(2) superfluous.

Subsection (c)(2) authorizes a party who has obtained an award

of damages from the STB to "bring a civil action to enforce that

[award] . . . if the rail carrier does not pay the amount

awarded." 49 U.S.C. § 11704(c)(2). If (c)(1) is interpreted

only to permit a party to bring a civil action to "enforce [a]

liability" previously determined by the STB, then (c)(2) is

surplusage. A reading that renders a statutory provision

surplusage is disfavored. See Massachusetts Ass'n of Health

Maintenance Orgs. v. Ruthardt, 194 F.3d 176, 181 (1st Cir. 1999)

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("[A]ll words and provisions of statutes are intended to have

meaning and are to be given effect, and no construction should

be adopted which would render statutory words or phrases

meaningless, redundant or superfluous.") (quoting United States

v. Ven-Fuel, 758 F.2d 741, 751-52 (1st Cir. 1985)) (internal

quotation marks omitted).

Although the language of § 11704(c)(1) reads as though

it is intended to establish concurrent jurisdiction, this seems

to create a conflict with § 10501(b), which describes the

jurisdiction of the STB as "exclusive."

Grimmel contends that the thrust of § 10501(b) is to

preempt state law, and that there is no conflict between the

"exclusive" language of § 10501(b) and the concurrent

jurisdiction language of § 11704(c)(1). The district court

found this interpretation of § 10501(b) unconvincing. See

Pejepscot, 59 F. Supp. 2d at 112-13. The last sentence of

§ 10501(b) plainly preempts state law. See 49 U.S.C.

§ 10501(b)(2) ("Except as otherwise provided in this part, the

remedies provided under this part with respect to the regulation

of rail transportation are exclusive and preempt the remedies

provided under Federal or State law."); see also, e.g.,

Burlington N. Santa Fe Corp. v. Anderson, 959 F. Supp. 1288,

1293 (D. Mont. 1997) (holding that § 10501(b)(2) expressly

preempts state economic regulation of railroad operations). But

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the first sentence of § 10501(b) is far less susceptible to this

interpretation; indeed, it makes no mention of state law.5 While

it would be an unusual construction, "exclusive" could be

understood to mean excluding state law. "Words can be

ambiguous, often materially so." Massachusetts v. Blackstone

Valley Elec. Co., 67 F.3d 981, 986 (1st Cir. 1995).

Left with some doubt about the plain meaning of the

language, we must reach beyond the language of §§ 10501(b)

and 11704(c)(1) and examine their history. "If the meaning is

5 Guilford also argues that the lack of any limitations
period in § 11705 for § 11704(b) claims filed with a district
court, combined with the presence of a limitations period in
that section for claims filed with the STB, implies that
Congress did not intend the district courts to have jurisdiction
over § 11704(b) claims. If § 11704(c)(1) creates a cause of
action over which the district courts have jurisdiction,
Guilford argues, then it is a cause of action without a statute
of limitations -- an absurd result.
Although the lack of a specific limitations period in §
11705 does weigh in favor of Guilford's proposed interpretation
of § 11704(c)(1), Guilford overstates its argument. As Grimmel
points out, in the absence of a specific limitations period, the
general four-year limitations period for civil actions under
Acts of Congress applies. See 28 U.S.C. § 1658. Another
possible resolution would be to apply in the district court the
limitations period for claims filed with the STB. Cf. Aluminum
Ass'n, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 746 F. Supp.
207, 213 n.18 (D.D.C. 1990) ("While there appears to be no
parallel statute of limitations period for damages actions
brought in District Court . . ., it is apparent from a reading
of the statute [(the ICCTA's predecessor)] that Congress
intended the statute of limitations periods to be the same for
the same type of actions, regardless of whether they are brought
before a district court or the [ICC].").

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not plain from the words of the statute, then resort to

legislative history is required." Greebel, 194 F.3d at 192.

4. Legislative History
The legislative history, in our view, resolves this

matter in favor of jurisdiction in the district court. This

strikes us as the most logical resolution of the quandary

Congress created by using inconsistent language in §§ 10501(b)

and 11704(c)(1).

a. 49 U.S.C. § 11704(c)(1)

Grimmel argues that the legislative history of the

ICCTA demonstrates that Congress intended no change to the

scheme of jurisdiction that existed under the Interstate

Commerce Act (ICA). Under the ICA, Grimmel says, courts allowed

parties to bring civil actions in federal court, and we must

presume that Congress was aware of that practice. See Cannon v.

University of Chicago, 441 U.S. 677, 696-98 (1979) (stating that

it is appropriate to assume that the drafters of Title IX were

aware of the courts' prior interpretations of Title VI).

In the section-by-section analysis of the Act in the

Conference Report on the ICCTA, § 11704 is described as follows:

"Section [11704] reenacts the applicable rail portions of former

section 11705. These include authority for injured persons to

seek judicial enforcement of agency orders and to seek damages

for a violation of the statute." H.R. Conf. Rep. No. 104-422,

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at 195 (1995), reprinted in 1995 U.S.C.C.A.N. 850, 880 (emphasis

added). As might be expected given Congress's intent to

"reenact" the old ICA provision, the language of current §

11704(c)(1) closely mirrors that of former § 11705. Under the

ICA, § 11705 provided: "A person may file a complaint with the

[ICC] under section 11701(b) of this title or bring a civil

action under subsection (b)(1) or (2) of this section to enforce

liability against a common carrier providing transportation

subject to the jurisdiction of the [ICC] . . . ." 49 U.S.C. §

11705(c)(1) (1994).6 Grimmel also notes that the ICC's

jurisdiction was described as "exclusive" in the section of the

ICA to which § 10501(b) of the ICCTA corresponds. See 49 U.S.C.

§ 10501(d) (1994). Grimmel claims that, despite the "exclusive"

language, no court construed § 10501(d) of the ICA to bar

federal district court jurisdiction over civil actions under the

ICA.

6 Guilford argues that the policy underlying the ICA --
protecting the public from railroad monopolies -- is vastly
different from the deregulatory impulse behind the ICCTA.
Therefore, Guilford says, assuming that ICCTA and ICA provisions
that share similar wording have the same meaning is risky. But
the legislative history quoted above clearly states that
Congress intended to "reenact[]" former § 11705 in § 11704. See
H.R. Conf. Rep. No. 104-422, at 195 (1995), reprinted in 1995
U.S.C.C.A.N. 850, 880. There is every reason to believe that
Congress did not intend the meaning of this section to change.

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 Grimmel contends that such civil actions against rail

carriers under the ICA were routinely brought in federal

district court. Grimmel offers as an example Overbrook Farmers

Union Cooperative Ass'n v. Missouri Pacific Railroad Co., 21

F.3d 360 (10th Cir. 1994). In Overbrook, a shipper sought

damages in federal district court from a carrier for refusal to

provide rail service on reasonable request in violation of 49

U.S.C. § 11101(a), the same provision underlying Grimmel's Count

III. See id. at 362. The district court referred the question

of the reasonableness of the rail carrier's refusal to provide

service to the ICC, which determined that the refusal was

unreasonable "and left the issue of damages to the district

court." Id.
Guilford denies that a system of concurrent

jurisdiction existed under the ICA. Guilford claims the

decision most nearly on point under the ICA is Kraus v. Santa Fe

Southern Pacific Corp., 878 F.2d 1193 (9th Cir. 1989), in which

the Ninth Circuit held that the ICC's "exclusive" jurisdiction

to assess mergers prevents a private suit in federal court under

the Interstate Commerce Act for damages caused by the merger.

See id. at 1197-98. As Grimmel points out, Kraus is easily

distinguishable. The specific Interstate Commerce Act provision

at issue in Kraus required prior express approval of the ICC for

all railroad mergers and did not provide for a private civil

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remedy. See id. at 1198; see also 49 U.S.C. § 11341(a) (1994)

("The authority of the Interstate Commerce Commission under this

subchapter [i.e., the ICA subchapter governing mergers] is

exclusive.").
The legislative history of § 11704 of the ICCTA

indicates that Congress intended to maintain the status quo that

had existed under the ICA. Overbrook demonstrates that under

the ICA, a district court could exercise jurisdiction over a

refusal of service claim; Kraus is not to the contrary. See

also Aluminum Ass'n, Inc. v. Atchison, Topeka & Santa Fe Ry.

Co., 746 F. Supp. 207, 210 (D.D.C. 1990) (stating that the ICA

"specifically empowers both the ICC and District Courts to

entertain complaints for reparations or damages as a result of

illegal acts or omissions of a carrier's actions pursuant to 49

U.S.C. § 11705(b)(2)").

b. 49 U.S.C. § 10501(b)

The legislative history of § 10501 of the ICCTA also

offers support for Grimmel's argument that in establishing the

STB's jurisdiction under the ICCTA, Congress intended only to

preempt state law and remedies, not to give the STB exclusive

jurisdiction over ICCTA claims.
First, under the heading "Remedies are exclusive," the

section-by-section analysis found in the House Report on the

ICCTA states: "The bill is intended to standardize all economic

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regulation (and deregulation) of rail transportation under

Federal law, without the [previous regime of] optional

delegation of administrative authority to State agencies to

enforce Federal standards . . . ." H.R. Rep. No. 104-311, at

95, reprinted in 1995 U.S.C.C.A.N. 793, 807.7 Second, under the

heading "General jurisdiction," the Report states that changes

were made to the jurisdictional provision

to reflect the direct and complete pre-
emption of State economic regulation of
railroads. The changes include extending
exclusive Federal jurisdiction to matters
relating to spur, industrial, team,
switching or side tracks formerly reserved
for State jurisdiction . . . . The former
disclaimer regarding residual State police
powers is eliminated as unnecessary, in view
of the Federal policy of occupying the
entire field of economic regulation of the
interstate rail transportation system.

7 The "delegation of administrative authority to State
agencies" refers to the system established by the ICCTA's
predecessor, the Staggers Rail Act of 1980, Pub. L. No. 96-448,
94 Stat. 1895. The Staggers Rail Act "began the substantial
economic deregulation of the [railroads] and the whittling away
of the size and scope of the ICC." H.R. Rep. No. 104-311, at
82, reprinted in 1995 U.S.C.C.A.N. at 793-94. The Act provided
a federal certification procedure for states that wanted to
regulate intrastate rail rates, rules, or practices. See 49
U.S.C. § 11501(b)(2)-(3) (1994).
The Staggers Rail Act also denied the ICC authority over
wholly intrastate "spur, industrial, team, switching, or side
tracks," 49 U.S.C. § 10907(b)(1) (1994), thus leaving them
subject to state regulation, see Illinois Commerce Comm'n v.
ICC, 879 F.2d 917, 922 (D.C. Cir. 1989). The ICCTA, by
contrast, specifically grants the STB authority over "spur,
industrial, team, switching, or side tracks . . ., even if the
tracks are located . . . entirely in one State." 49 U.S.C.
§ 10501(b)(2) (emphasis added).

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Id. at 95-96, reprinted in 1995 U.S.C.C.A.N. at 807-08 (emphasis

added). The thrust of the statute is to federalize these

disputes, not to deprive the federal courts of jurisdiction.8
Guilford argues that the references to preemption of

state law and regulation in the legislative history of §

10501(b) are simply beside the point. Guilford says that the

references do not address the question of whether that section,

in addition to preempting state law, establishes exclusive

jurisdiction in the STB. We do not find the history of

§ 10501(b) as unhelpful as Guilford suggests. While not

determinative by itself, the focus on preemption of state law in

the legislative history does give Grimmel's suggested

interpretation of § 10501(b) some additional plausibility.

Arguments both for and against concurrent jurisdiction

can be drawn from the language and structure of the ICCTA, its

legislative history, and case law. Viewing the language of the

8 The legislative history also shows that Congress
intended the STB to be smaller -- and have fewer resources --
than the ICC. When Congress terminated the ICC, it had five
commissioners and about 400 employees. See H.R. Rep. No. 104-
311, at 82, reprinted in 1995 U.S.C.C.A.N. at 794. The STB has
three commissioners, see id., and Congress expected only 60 ICC
employees to transfer to the STB, see id. at 90, reprinted in
1995 U.S.C.C.A.N. at 802. The ICC's 1995 budget was $33
million; only $8.4 million of the Department of Transportation's
1996 budget was devoted to the STB. See id. at 93, reprinted in
1995 U.S.C.C.A.N. at 805. This decrease in size and resources
is not consistent with exclusive STB jurisdiction.

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ICCTA in light of its legislative history and the evidence of

practice under its predecessor, the ICA, we conclude that

Grimmel has successfully carried its burden of establishing the

existence of federal district court jurisdiction over its ICCTA

claim.

C. Primary Jurisdiction

The question remains whether the district court should

refer Grimmel's ICCTA claim to the STB under the doctrine of

primary jurisdiction. Guilford argues that such a referral is

appropriate because referral to the STB will promote uniformity

in the interpretation of the ICCTA, and because the STB is

"better equipped than [the] courts by specialization, by insight

gained through experience, and by more flexible procedure" to

decide the question. Nader v. Allegheny Airlines, Inc., 426

U.S. 290, 304 (1976) (quoting Far East Conference v. United

States, 342 U.S. 570, 574-75 (1952)) (internal quotation marks

omitted). Grimmel argues that the district court is capable of

ruling on Grimmel's ICCTA claim without referral to the STB. In

Grimmel's view, no technical issues exist for the STB's

consideration.
The Supreme Court has said that "[n]o fixed formula

exists for applying the doctrine of primary jurisdiction."

United States v. Western Pac. R.R. Co., 352 U.S. 59, 64 (1956).

The primary jurisdiction doctrine is intended to "serve[] as a

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means of coordinating administrative and judicial machinery" and

to "promote uniformity and take advantage of agencies' special

expertise." Mashpee Tribe v. New Seabury Corp., 592 F.2d 575,

580 (1st Cir. 1979). This court relies on three factors to

guide the decision on whether to refer an issue to an agency

under the primary jurisdiction doctrine:

(1) whether the agency determination l[ies]
at the heart of the task assigned the agency
by Congress; (2) whether agency expertise
[i]s required to unravel intricate,
technical facts; and (3) whether, though
perhaps not determinative, the agency
determination would materially aid the
court.

Blackstone Valley Elec. Co., 67 F.3d at 992 (quoting Mashpee

Tribe, 592 F.2d at 580-81) (alterations in original).

We conclude that the district court should stay

Grimmel's ICCTA claim while referring it to the STB. First, the

STB's expertise is clearly involved in the question of whether

Guilford's actions constitute unlawful refusal to "provide . .

. service on reasonable request," 49 U.S.C. § 11101(a), and the

agency's determination would materially aid the district court.

Furthermore, referral to the STB will promote uniformity in the

standards governing refusals to provide service. See DeBruce

Grain, 149 F.3d at 790 (affirming on primary jurisdiction

grounds district court's conclusion that a refusal of service

claim should be heard by the STB); Overbrook, 21 F.3d at 363

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(describing district court's referral of a refusal of service

claim to the ICC).

D. Disposition of the State Law Claims
The district court held that it could not exercise

supplemental jurisdiction over Grimmel's state law claims

because of the absence of federal subject matter jurisdiction.

Because we conclude that subject matter jurisdiction exists, the

premise for the dismissal has vanished.

Guilford argues that Counts I and II do not satisfy the

requisites for supplemental jurisdiction and must be dismissed,

while Counts IV, V, and VI are preempted by the ICCTA and must

be dismissed. Grimmel, on the other hand, contends that the

district court should stay only those claims relating to

defendants' refusal to provide service, pending referral to the

STB, and proceed on the merits of the remaining claims.

The decision whether to exercise supplemental

jurisdiction is left to the sound discretion of the district

court. See Vera-Lozano v. International Broad., 50 F.3d 67, 70

(1st Cir. 1995). A federal court may exercise supplemental

jurisdiction over a state claim whenever it is joined with a

federal claim and the two claims "derive from a common nucleus

of operative fact" and the plaintiff "would ordinarily be

expected to try them both in one judicial proceeding." Id.

(quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966))

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(internal quotation marks omitted). The supplemental

jurisdiction statute states that a district court may refuse to

exercise supplemental jurisdiction if the state claim

"substantially predominates over the claim or claims over which

the district court has original jurisdiction" or "the claim

raises a novel or complex issue of state law." 28 U.S.C. §§

1367(c)(1), (c)(2). The district court should consider on

remand whether to stay, act on, or dismiss Grimmel's state law

claims.

IV.

The district court's order dismissing Grimmel's complaint is

vacated. The case is remanded to the district court for further

proceedings in accordance with this opinion.

So ordered.

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