[00:00:00] Speaker 01: Case number 23-1126, Inray Western Cold Traffic League Petitioner. [00:00:06] Speaker 01: Mr. Kolesar for the petitioner, Mr. Kolesar for the respondent. [00:00:12] Speaker 04: Good morning, Mr. Kolesar. [00:00:14] Speaker 04: Good morning, Your Honor. [00:00:15] Speaker 04: May it please the court? [00:00:20] Speaker 05: I'm here this morning on behalf of the Western Cold Traffic League. [00:00:25] Speaker 05: In its opposition, the Surface Transportation Board [00:00:29] Speaker 05: contends that there is no basis for mandamus, because what took place before the board, revenue adequacy 2014, the ex parte 722 proceeding, was simply an informational docket. [00:00:42] Speaker 05: And the board uses that terminology repeatedly in its filing, namely informational docket to try to, seemingly try to avoid the use of the word proceeding. [00:00:51] Speaker 05: We don't believe that that labeling exercise is dispositive. [00:00:56] Speaker 05: simply referring to the proceeding as informational, particularly in this situation where that labeling does not occur until years after the fact. [00:01:06] Speaker 05: We do not regard that as, again, as dispositive. [00:01:10] Speaker 05: We think that it was more important under the Administrative Procedure Act 555B and 555E is what the board said when it initiated 722. [00:01:22] Speaker 05: in 2014 and how the board has conducted itself with respect to that proceeding in the intervening years. [00:01:28] Speaker 04: So what authority is the board acting under when it opens this EP 722? [00:01:39] Speaker 04: What statute, what regulation is it relying upon to act there? [00:01:49] Speaker 05: in terms of its authority to initiate any proceeding whatsoever. [00:01:53] Speaker 04: Well, this particular proceeding you are challenging. [00:01:57] Speaker 04: What authority was the board acting pursuant to? [00:02:01] Speaker 04: What statute, what rule? [00:02:09] Speaker 05: I'm not able to quote you a specific one at this point, but it's enabling statute just generally in its ability to conduct business. [00:02:17] Speaker 04: Well, here's here's why I'm asking that question because you rely on the case like Fox Fox television case for why this we have jurisdiction. [00:02:31] Speaker 04: Because the outcome of this proceeding would have some sort of legal consequence. [00:02:41] Speaker 04: And so that's why we we would have jurisdiction. [00:02:45] Speaker 04: There, the statute was quite different because it required the FCC to act every two years. [00:02:54] Speaker 04: Here, the statute doesn't require the surface transportation board to act. [00:03:02] Speaker 04: You know, within any specific time frame, correct? [00:03:06] Speaker 04: And then to the extent that someone. [00:03:12] Speaker 04: Is challenging. [00:03:13] Speaker 04: Rates. [00:03:16] Speaker 04: The relevant statute 10704. [00:03:18] Speaker 04: He says the board may begin a proceeding under this section only on a complaint. [00:03:27] Speaker 04: Yes, sir. [00:03:29] Speaker 04: And so. [00:03:30] Speaker 04: So. [00:03:31] Speaker 04: It seems like this is a completely different type of statutory scheme. [00:03:38] Speaker 04: In the sense that. [00:03:40] Speaker 04: The board [00:03:41] Speaker 04: wasn't really compelled by statute to do anything here. [00:03:49] Speaker 04: And yet you're telling us that somehow them not completing what they did has some sort of legal consequence. [00:03:58] Speaker 04: And I don't understand that if there's no statute that says they even had to do anything. [00:04:03] Speaker 05: I understand your question, Your Honor. [00:04:06] Speaker 05: It is our view that having taken the step of initiating the proceeding [00:04:11] Speaker 05: The board then triggered its responsibilities under the Administrative Procedure Act to conclude those in a reasonable time and to issue some decision explaining its reasoning. [00:04:26] Speaker 04: So anytime an agency says, you know, we're [00:04:34] Speaker 04: thinking about something and we're trying to figure out if it's a problem or what we need to do about it. [00:04:40] Speaker 04: So we want to just have an informational proceeding and gather information. [00:04:45] Speaker 04: Essentially, any time an agency does that, even if they have no requirement to do that, once they do that, [00:04:55] Speaker 04: there's legal consequences that follow from their failure to act because one thing that they could have done at the end of this informational proceeding was to say, okay, we're gonna have a notice of proposed rulemaking. [00:05:13] Speaker 04: And the fact that they didn't do that is a legal consequence. [00:05:18] Speaker 04: So anytime an agency just has one of these informational proceedings, [00:05:26] Speaker 04: gives us jurisdiction to entertain a petition like yours. [00:05:32] Speaker 05: That is not our position, Your Honor. [00:05:34] Speaker 05: Our position is that such events, as you've described, would be possible. [00:05:40] Speaker 05: But in order to fall into that category, it would have been necessary for the board to have in its notice initiating that process, that informational talk, it too have been far more explicit [00:05:55] Speaker 05: And was the case here. [00:05:57] Speaker 05: We believe the court said in this instance it intended to address the issues discussed above. [00:06:03] Speaker 03: If I may, the board notice of any rulemaking or even any anticipated rulemaking in the notice. [00:06:10] Speaker 05: Right. [00:06:12] Speaker 05: That's correct. [00:06:13] Speaker 05: It was not well. [00:06:14] Speaker 05: Let me back off a little bit on that. [00:06:17] Speaker 05: It may have been part of the process of formulating rule, but it did not identify itself as being an advance notice of proposed rulemaking. [00:06:26] Speaker 05: It did not identify itself as being a notice of proposed rulemaking. [00:06:29] Speaker 03: Could the league have filed a petition for proposed rulemaking some time ago? [00:06:34] Speaker 05: Certainly. [00:06:35] Speaker 03: We could. [00:06:35] Speaker 03: So why are we on this procedural mechanism versus that? [00:06:41] Speaker 05: I think there are a couple of reasons for that. [00:06:44] Speaker 05: One, timing. [00:06:46] Speaker 05: Here, April 2014, the board issues an ex parte proceeding and initiates an ex parte proceeding, excuse me, and says, we're going to address this issue. [00:06:54] Speaker 05: We're going to invite comments from anybody who's interested to help us know [00:06:58] Speaker 05: what to do. [00:06:59] Speaker 05: So many, as you may have seen from the record, many different entities filed comments and made suggestions, and there were multiple different versions of suggestions as to how the revenue adequacy evaluation process and application process in rate cases should be undertaken. [00:07:18] Speaker 05: It's not clear to me at what point the league or others should have known. [00:07:22] Speaker 05: Wait a minute. [00:07:22] Speaker 05: That was all a failure. [00:07:24] Speaker 05: The board decided not to do anything on that. [00:07:27] Speaker 05: Now file your petition for rulemaking. [00:07:30] Speaker 03: We've got what's considered reasonable when the when the APA says that you should the any agency [00:07:37] Speaker 03: when making any considerations should do something in a timely and reasonable manner. [00:07:43] Speaker 03: What do you consider that to be based on case law? [00:07:47] Speaker 05: It doesn't need to be weeks. [00:07:49] Speaker 05: It doesn't need to be months. [00:07:51] Speaker 05: It probably doesn't need to be a year. [00:07:54] Speaker 05: Maybe it could be a couple of years. [00:07:55] Speaker 05: We're approaching the 10 year anniversary. [00:07:57] Speaker 05: of this notice. [00:07:59] Speaker 05: The board in its opposition filing lays out a test for how the public and the court should know whether something is an informational docket, and this is on pages seven and eight of their opposition filing. [00:08:14] Speaker 05: They say, based on a 2010 decision dismissing about a dozen cases simultaneously, you will know it's only an informational docket [00:08:24] Speaker 05: If, when the record closes, the case automatically discontinues by implication or by converse, [00:08:33] Speaker 03: But in that notice, it doesn't say action will specifically be taken one way or the other. [00:08:38] Speaker 05: Right, it says that it will just be over on its own. [00:08:43] Speaker 05: Here we have a situation where the record closes for the first time in August of 2015. [00:08:50] Speaker 05: By the beginning of 2016, the board has begun a now mandated process of reporting to Congress every quarter. [00:08:59] Speaker 05: And the total is now up to 34 times. [00:09:02] Speaker 05: where the board has told Congress that revenue adequacy remains a pending proceeding. [00:09:08] Speaker 05: It's one of the significant proceedings that's going on. [00:09:12] Speaker 05: So we're seeing both sides here. [00:09:15] Speaker 05: On the one hand, we were supposed to know that it ended automatically. [00:09:18] Speaker 05: And conversely, the board is telling Congress, no, no, no, no, we're still working on that. [00:09:23] Speaker 05: And in many of those quarterly notices, the board identified specific dates as to which the next decision would come out. [00:09:31] Speaker 05: It doesn't look like the 25th anniversary of the Sackers Act to review and look ahead, which was one of those dozen proceedings that the board dismissed back on whatever date it was in 2010. [00:09:45] Speaker 05: This looks like a much more consequential case with significant implications for rate cases where many parties have participated [00:09:53] Speaker 04: the board is telling Congress this is this is ongoing it doesn't look maybe maybe what if we agree with all of that but we feel that well you've got [00:10:09] Speaker 04: alternative grounds for relief, which is to just file your petition for rulemaking. [00:10:14] Speaker 04: And then if they don't do anything with respect to that, then you can clearly get relief from the courts, because that's clearly revealed. [00:10:27] Speaker 04: So you have, you know, you're not supposed to get review in the nature of mandamus unless there's like no other alternative grounds for relief. [00:10:39] Speaker 04: So why isn't that a problem for you? [00:10:44] Speaker 05: It is correct. [00:10:45] Speaker 05: We could have filed a petition for rulemaking at any point in time. [00:10:49] Speaker 05: But the second part, the timing issue, I started to explain earlier in response to Judge Child's question. [00:10:56] Speaker 05: The second factor that I believe is responsive to your question is more substantive. [00:11:04] Speaker 05: The board had in hand many different rulemaking, many different proposals for how revenue adequacy ought to work. [00:11:12] Speaker 05: At this point now, do we go back in and file a new one? [00:11:14] Speaker 05: Do we file what we filed before? [00:11:16] Speaker 05: Even if we file exactly the same thing in 2024, do we then wait a year or two to see what happens on that one? [00:11:23] Speaker 05: We have what, for lack of a more dignified expression, a whack-a-mole problem. [00:11:29] Speaker 05: Is each individual entity supposed to file its own petition for rulemaking and the board, two years later, can smack each one down? [00:11:35] Speaker 05: And then we'll go another couple of years or a few years of individually rejecting all that has been pending for 10 years. [00:11:45] Speaker 03: You just conceded that you have an alternative remedy with respect to the proposed rulemaking. [00:11:52] Speaker 03: So even though you feel like those options are not practical, does that still hinder our ability to grant you relief? [00:12:02] Speaker 05: I would say no in this situation by virtue of the history here, by virtue of the fact that the board asked parties to come in, hold parties that intended to address things. [00:12:13] Speaker 03: I might add that- So does that mean you're looking at a failure to act kind of brings you here? [00:12:20] Speaker 05: A failure to act, I'm sorry, a failure to act in response to board action. [00:12:26] Speaker 05: We're not the ones who had the idea that the board initiated a proceeding about revenue adequacy. [00:12:32] Speaker 05: that we didn't come at this out of the blue. [00:12:35] Speaker 05: The board initiated this proceeding, said by the way, in October of 2016, in an ex parte 664 decision that the board quotes in its brief, that it will address issues relating to revenue adequacy in a subsequent decision in docket number EP 722, two and a half years after first initiating the proceeding and after the record first closes. [00:12:58] Speaker 05: So, [00:13:00] Speaker 05: to try to, again, answer your questions about whether we have an available remedy. [00:13:06] Speaker 05: It is true we could file. [00:13:10] Speaker 05: Whether that is necessarily dispositive, we would say no. [00:13:15] Speaker 05: Again, in light of what the court has done and how it is conducted itself. [00:13:19] Speaker 04: So in your petition, oh, okay, Judge Rodgers. [00:13:23] Speaker 02: Thank you. [00:13:23] Speaker 02: The board's response indicates, do you not agree, that it has not been sitting on its hands [00:13:31] Speaker 02: It has taken other steps, not what you want or not completely what you want. [00:13:40] Speaker 02: But it's not as though it issued that request and then has done nothing. [00:13:52] Speaker 05: Your Honor, we would certainly agree that that's what the board says in its filing. [00:13:56] Speaker 02: Well, you can't deny that, can you? [00:13:58] Speaker 02: You certainly haven't denied it. [00:14:01] Speaker 02: Oh, there's no challenge to the fact the board took these other actions. [00:14:08] Speaker 02: Isn't that correct? [00:14:10] Speaker 05: I'll try to answer, but perhaps I'm not sure I understand exactly what you mean by the other actions. [00:14:15] Speaker 05: As I read their filing, they said that they have been engaged in many other proceedings. [00:14:21] Speaker 05: So yes, there have been other proceedings going on. [00:14:23] Speaker 05: But in many cases, those are over. [00:14:25] Speaker 05: They ended years ago, or they took place years after the 2014 [00:14:32] Speaker 05: It's not an agency that's so busy at any given time that it can't resolve the revenue adequacy case. [00:14:40] Speaker 02: Well, that's not their representation to the court. [00:14:42] Speaker 02: But even if you're correct, why hasn't one of your members filed the petition for rulemaking? [00:14:51] Speaker 02: That's what I'm not clear on. [00:14:53] Speaker 02: You say, what, it's burdensome because you'd have to repeat filings? [00:15:00] Speaker 05: we would have characterized it not so much as burdensome but as well burdensome perhaps in the sense of additional delay but practically unnecessary given what's already pending there have been file a petition and I don't know the board rules whether or not we are [00:15:30] Speaker 02: forbids incorporation by reference. [00:15:36] Speaker 02: But even if their rules did, you could just file those documents. [00:15:41] Speaker 02: I thought you were going to argue, you know, this is a very burdensome proceeding, a rule making, it's costly, it's timely, but that's not your argument. [00:15:52] Speaker 02: Apparently, you just don't want to file a rule. [00:15:56] Speaker 05: I would say time consuming in the sense that we could file a petition [00:16:01] Speaker 05: there would be some additional expense associated with drafting the petition, some additional burden associated with filing it, but then we would run into the delay problem. [00:16:10] Speaker 05: Essentially, it starts to clock over again in terms of what the board is allowed to do. [00:16:18] Speaker 02: Well, if you file on, let's see, April 1, and the board did nothing, [00:16:32] Speaker 02: for a year. [00:16:37] Speaker 02: Given what the board has told Congress and what it says it's going to do now and how it wants to set up its docket and its view that your position oversimplifies the balancing of interests that the board must undertake, then aren't you in a better legal [00:17:03] Speaker 02: situation than you are now, where you're asking for mandamus, which I think, anyway, you know what mandamus is. [00:17:11] Speaker 02: You know what the courts have said about it. [00:17:14] Speaker 05: Yes, your honor. [00:17:16] Speaker 05: Are we in a better legal position? [00:17:17] Speaker 05: I suppose that's one possible interpretation. [00:17:22] Speaker 05: We could file a petition for rulemaking. [00:17:25] Speaker 05: The board could initiate a rulemaking proceeding, receive comments, and then sit on those comments for an undetermined period of time. [00:17:33] Speaker 05: We don't understand that the board is contending that it has so many more important matters that you can't get to revenue adequacy. [00:17:41] Speaker 05: We understand the board to be saying. [00:17:43] Speaker 05: much like what Judge Wilkins had identified in his dissent three years ago in the WCTL STB case, that it's easier to, I'm not quoting exactly, to say that matter isn't important by pretending it wasn't important to begin with. [00:17:59] Speaker 05: This in 2014 was billed as being something terribly important. [00:18:03] Speaker 05: Now we're being told it was just informational. [00:18:05] Speaker 05: It doesn't matter. [00:18:06] Speaker 05: Yes, we could file a petition for rulemaking. [00:18:09] Speaker 05: Would we be in any different situation two or three years from now? [00:18:13] Speaker 05: when we were, if we were forced to come back to the court. [00:18:16] Speaker 04: To follow up on Judge Roddick's question, you asked for two different forms of relief in your petition, you know, one or the other. [00:18:27] Speaker 04: The first one that you asked for, which is kind of your first choice, your preference, is that we order the Surface Transportation Board to publish a notice of proposed rulemaking within 90 days [00:18:43] Speaker 04: and take final action on that notice within one year or some other reasonable period of time. [00:18:52] Speaker 04: What would that notice of proposed rulemaking say? [00:18:55] Speaker 04: It would have to propose a specific rule, right? [00:18:58] Speaker 04: Yes, sir. [00:19:01] Speaker 04: So what you are asking for us to do by way of mandamus is for them to [00:19:13] Speaker 04: for us to order them to decide what rule they want to propose and then publish that as a notice as a proposed rule and go through this. [00:19:27] Speaker 04: Whereas you haven't even filed a petition to ask them to institute a rulemaking. [00:19:36] Speaker 04: Because if you filed the petition, [00:19:38] Speaker 04: What would come out of that would say, yes, we're going to institute a rulemaking, or no, we're not. [00:19:48] Speaker 04: And then you could get review of that. [00:19:51] Speaker 04: And you would have to establish whether it was arbitrary and capricious for them to say, no, we're not going to institute a rulemaking. [00:20:01] Speaker 04: You're trying to skip over that altogether and have us, by mandamus, order them. [00:20:08] Speaker 04: to start rulemaking, not, you know, is it arbitrary and capricious for them to, you know, to institute a rulemaking or not? [00:20:21] Speaker 04: No, we're gonna go straight to ordering them to instituting a proposed rulemaking. [00:20:30] Speaker 04: How do we get there? [00:20:32] Speaker 04: Isn't that a gargantuan leap? [00:20:35] Speaker 05: We wouldn't ask you to dictate the particular rule that they would propose, but we don't believe it's a gargantuan leap, by virtue of the fact that they've been sitting on proposals for 10 years. [00:20:49] Speaker 04: Well, what I'm saying, it's a gargantuan leap in the sense that what you could do is ask them [00:20:59] Speaker 04: to institute a rulemaking, and you could say the proposed rule should be X. We want you to institute a rulemaking and say, you know, we agree with the Western Traffic League, and we are proposing a new rule of X based on their recommendation. [00:21:21] Speaker 04: And then if they said, no, we're going to [00:21:27] Speaker 04: do a proposed rule of Y, then you could seek review of that. [00:21:33] Speaker 04: And then we would be reviewing, well, should they have chosen Y over X? [00:21:39] Speaker 04: And was that arbitrary and capricious or whatever? [00:21:43] Speaker 04: Or they could say, no, we don't think we need any new rule. [00:21:46] Speaker 04: We think everything is just fine now. [00:21:48] Speaker 04: And we would be reviewing that. [00:21:51] Speaker 04: But you are trying to tell us now by way of mandamus, no, we're not going to do any of those things. [00:21:59] Speaker 04: We're going to tell them that they have to propose some sort of a rule. [00:22:06] Speaker 04: You're saying that we don't have to order them to propose the rule you want them to. [00:22:15] Speaker 04: But they have to figure out some new rule to propose. [00:22:20] Speaker 04: in 90 days proposing. [00:22:24] Speaker 04: What's the authority for us ever having done anything like that? [00:22:33] Speaker 05: Well, in terms of an exact precedent, I don't have one for you. [00:22:38] Speaker 05: We don't regard the situation as being one that we've seen happen before. [00:22:42] Speaker 03: Does the court just have inherent authority to do that? [00:22:45] Speaker 05: We would say that you have your inherent authority under [00:22:49] Speaker 05: the track line precedent and under the Administrative Procedure Act to compel the agency to complete what it started on its own initiative and complete it pursuant to the court's instruction to protect your future jurisdiction. [00:23:09] Speaker 04: So your second alternative form of relief is for us to order the surface transportation board [00:23:19] Speaker 04: to serve a final decision in ER7, I'm sorry, EP722, the revenue adequacy 2014 proceeding, or whatever we want to call it, within 90 days, explaining why it is discontinuing the proceeding. [00:23:46] Speaker 04: And I started this by asking you, what statute even says that they have to have initiated the proceeding in the first place? [00:23:59] Speaker 04: And you couldn't tell me one. [00:24:02] Speaker 04: So how is there some sort of clear and indisputable right, if there's no statute that required them to even institute it, [00:24:13] Speaker 04: Where's the clear and indisputable kind of authority that they have to discontinue it in a certain way or in a certain time frame or with certain reasons? [00:24:30] Speaker 04: We would say 5 UAC, 555B and E. And 555E talks in terms of proceedings [00:24:42] Speaker 05: the statute defines proceedings and this isn't any of the three things that the statute calls a proceeding right uh we would not agree with that your honor we would say that the definitions for the apa in five usc 551 are drawn very broadly [00:25:05] Speaker 05: and that agency proceeding means an agency process as defined in paragraphs 5, 7, and 9. [00:25:13] Speaker 05: Rulemaking under 5 is an agency process for formulating, amending, or repealing a rule. [00:25:19] Speaker 05: That was the basis for my answer earlier to Judge Childs on this not saying that it's a notice of proposed rulemaking, but potentially falling within the scope of the process for formulating a rule. [00:25:29] Speaker 05: And then on adjudication, [00:25:31] Speaker 05: the definition of an education links to an order and an order is very broad. [00:25:37] Speaker 05: We see it as applying to anything other than rulemaking so that it's fairly comprehensive when we look through those, we see the APA as being fairly comprehensive in terms of its agency proceeding definition arising by virtue of the board's action in what it did in 2014. [00:25:58] Speaker 05: and say you would address the matter. [00:26:00] Speaker 04: So if an agency says, you know, there's a kind of new technology or new circumstance that has arisen that we heard about. [00:26:15] Speaker 04: We don't have any rules that cover this circumstance. [00:26:20] Speaker 04: We want to gather information to determine whether that should be a concern to us, whether we should have a rule covering this new circumstance. [00:26:37] Speaker 04: And so they open up this informational proceeding. [00:26:42] Speaker 04: Maybe they use the word proceeding. [00:26:46] Speaker 04: And then they conclude it. [00:26:50] Speaker 04: without taking any action. [00:26:52] Speaker 04: You're saying that the minute that they kind of use the words, well, we're thinking we're trying to figure out whether there should be a rule that makes it a rulemaking proceeding under the statute? [00:27:05] Speaker 05: No, Your Honor. [00:27:05] Speaker 05: We would say that the board statement that it would address the issues, that is, in our mind, what separates this from [00:27:17] Speaker 05: hypothetical like what you're describing, where the board is far more explicit and simply says, here's a new area. [00:27:26] Speaker 05: We need to understand this area better. [00:27:28] Speaker 05: Please let us know what you think. [00:27:30] Speaker 05: We don't anticipate issuing any decision at the end of it. [00:27:33] Speaker 05: We just want to better educate ourselves. [00:27:36] Speaker 05: We think that would be something that would fall far, that would be a very different sort of situation than what we see here in terms of the application of the APA. [00:27:50] Speaker 04: Um, if, um, Judge Childs and Judge Rogers don't have any further questions, why don't you take a minute to, um, you know, cover anything else that, um, we haven't asked you about? [00:28:06] Speaker 05: Uh, that is what I had intended to cover. [00:28:18] Speaker 04: All right, so we'll give you some time on rebound. [00:28:21] Speaker 04: Thank you. [00:28:23] Speaker 04: We'll hear from Mr Quinn. [00:28:37] Speaker 01: May it please the court Tom Quinn for the Surface Transportation Board. [00:28:42] Speaker 01: The League is asking for extraordinary relief here, but they have not met the high burden required for a mandamus. [00:28:49] Speaker 01: They have not shown a clear duty to act because the board statutes did not require a rulemaking as they concede here today. [00:28:56] Speaker 01: And the board never said that it was initiating one. [00:29:00] Speaker 01: And they have adequate alternative remedies. [00:29:02] Speaker 01: They can petition for rulemaking as the league has done many times before and as they concede today that they still could do. [00:29:10] Speaker 01: And their members can file rate cases. [00:29:13] Speaker 01: And the board must give them full consideration. [00:29:16] Speaker 01: Instead, they are trying to undercut the board by turning its informational docket into a binding rulemaking proceeding. [00:29:22] Speaker 03: Can you claim them after this long on not responding to the various comments and the issues that they have put in front of you for quite some time? [00:29:33] Speaker 01: We understand that they want an affirmative determination, particularly on their conception of what the rule changes should be or how to implement the constraint. [00:29:42] Speaker 01: And they can get that answer by simply coming to the board and filing a petition for rulemaking with their construction that they want. [00:29:49] Speaker 01: But there was no underlying duty for the board here to engage in a rulemaking. [00:29:55] Speaker 01: They rely entirely on 555B and E of the APA. [00:30:00] Speaker 01: But importantly, those provisions govern processes that an agency must follow once it has an underlying duty to act in the first place. [00:30:08] Speaker 01: And it's that predicate underlying duty that's missing here in this information docket. [00:30:13] Speaker 01: And I think comparing and contrasting the cases, the Fox televisions case that Judge Wilkins mentioned, the statute there is what's important. [00:30:21] Speaker 01: And the statute there said, [00:30:22] Speaker 01: every two years, they must review every one of their rules and they must either make an affirmative determination to keep it or to start a rulemaking to repeal or modify it. [00:30:33] Speaker 01: And that's in stark contrast with the Center for Biological Diversity v. Zinke case that we cite in our brief. [00:30:38] Speaker 01: where the court held that there's no free-floating duty for an agency to complete. [00:30:44] Speaker 01: There it was, they filed a notice, they had a hearing on important issues arising out of the Deepwater Horizon oil spill-in disaster, and even there the court said because there's no underlying legal or legislative duty, there's no requirement for action that the court can enforce. [00:31:01] Speaker 03: What about the APA's general rule? [00:31:03] Speaker 03: about once agencies take on issues that they should, within a reasonable period of time, address the issue. [00:31:09] Speaker 01: Yeah, I think that's the 555B argument, Charles. [00:31:13] Speaker 01: And their cases demonstrate, all four of the cases that they cite, there was some underlying predicate that legally required action by the agency. [00:31:23] Speaker 01: In the Cutler case, there was a new statute that Congress had passed that the agency had to respond to. [00:31:29] Speaker 01: In the Inri International Chemicals Workers Union case, there was an NPRM issued by the agency. [00:31:36] Speaker 01: In the Octor case, I think it's PCHRG, the Octor, there was an ANPRM. [00:31:42] Speaker 01: And in the Inri American Rivers and Idaho Rivers case, there was a petition for rulemaking under the agency's regulations. [00:31:49] Speaker 01: And in all of those circumstances, the board would agree that there is an obligation to act and to come to a final conclusion. [00:31:55] Speaker 01: But here, all the board did was start an informational docket and set out to gather more information from its constituents. [00:32:02] Speaker 01: And that's what they did here. [00:32:04] Speaker 04: And they're saying that this is essentially a bait and switch because you said we're going to address issues and take all this information in. [00:32:15] Speaker 04: You close it, then you reopen it. [00:32:18] Speaker 04: Then you're telling Congress, I'm saying you, but your client is telling Congress, oh, we're still working on this. [00:32:26] Speaker 04: I mean, you can't have it both ways, right? [00:32:31] Speaker 01: I would agree, Your Honor, and I think that if you look at the notice and you look at the reports to Congress, there's no two ways of interpreting it. [00:32:39] Speaker 01: What we said in the notice was that we were going to have a public forum to discuss these issues with a view to what, if any, changes the board can and should consider. [00:32:49] Speaker 04: Didn't you say address? [00:32:52] Speaker 01: They did, Your Honor. [00:32:53] Speaker 01: They said it in multiple places in the notice. [00:32:55] Speaker 01: They said that they were going to [00:32:56] Speaker 01: addressed these issues. [00:32:57] Speaker 01: They also said they were going to explore these issues. [00:33:00] Speaker 01: And they said, I believe on the first page of the notice, that they were going to have a public hearing to address these issues. [00:33:06] Speaker 01: And in that context, I think it was quite clear that address meant discuss and explore. [00:33:11] Speaker 01: Nowhere in that notice did we say this will be followed by a rulemaking. [00:33:16] Speaker 01: Sometimes the agency might do that. [00:33:18] Speaker 03: Doesn't this exploratory inquiry that doesn't seem to have an end [00:33:22] Speaker 03: potentially have a chilling effect on your stakeholders in terms of them actually being willing to make comments that should help you in furthering any proposed rulemaking. [00:33:33] Speaker 01: I'm not sure what the chilling effect would be. [00:33:34] Speaker 01: I think it would actually be of immense benefit to have this kind of proceeding to stakeholders, because then they have an opportunity to err in front of the board, our proposal, and others have that same opportunity, the railroad. [00:33:47] Speaker 03: Judge Wilkins says bait and switch piece, where you indicate you'll start that process, then you close it, and then nothing happens. [00:33:54] Speaker 03: And then you start it again, and then everybody gets excited. [00:33:58] Speaker 03: You start putting comments out there, and then you stop it again, close the record, and then nothing happens. [00:34:03] Speaker 01: A few comments on that. [00:34:05] Speaker 01: I think that the conception of calling it a bait and switch is really belied by the league's own comments in what they submitted to the board in response to this notice and in other shippers comments where they noted that there was no proposal for action here so that the league and others were providing general comments for the board to consider. [00:34:25] Speaker 01: I think this is a great [00:34:27] Speaker 01: Opportunity for the league and shippers and for the railroads who have the opposite perspective on a lot of these issues to air what they think is an appropriate action for the board and to have public discussion. [00:34:39] Speaker 01: In a way that isn't in a binding rulemaking proceeding it provides greater latitude to the constituents to [00:34:46] Speaker 01: explore these issues and then briefly on the congressional ports that reports that your honor raised their their argument seems to be that the fact that these are included in the congressional ports at all is misleading but if you look at the reports themselves they are abundantly clear in the updates to congress what is happening they say right at the top that they are pre-rule [00:35:08] Speaker 01: They provide the date that the notice was initiated. [00:35:12] Speaker 01: It describes actions that have happened through the years on this docket, including the rate reform task force that was started, when their final report was issued, when there was a hearing held on these issues. [00:35:24] Speaker 01: And these are all very much straightforward, honest. [00:35:28] Speaker 01: There's no [00:35:29] Speaker 01: Contention that there's anything misleading in these reports. [00:35:32] Speaker 04: It's just the fact that they still exist that the reports are written in a way that suggests that the. [00:35:40] Speaker 04: Proceeding is ongoing that it's not really closed. [00:35:45] Speaker 01: The position is that the docket, the number 722 docket itself is still open, but the record is closed in the proceeding. [00:35:53] Speaker 01: And it says the date that the record was closed and it apprises Congress of new things that have happened related to the same substance, the revenue adequacy. [00:36:01] Speaker 01: Issues since the docket closed and the most significant one of those being that the certain railroad interest filed a petition for rulemaking on the revenue adequacy methodology and the board read that petition instituted a proceeding based on that petition. [00:36:18] Speaker 01: That's the same route that the lead could follow here. [00:36:21] Speaker 04: So, but, but I guess the question is, [00:36:26] Speaker 04: If the representation that is made to Congress is that the docket is open, the record is closed, but the docket is open. [00:36:34] Speaker 04: Yes. [00:36:35] Speaker 04: Is that accurate? [00:36:36] Speaker 04: Yes. [00:36:38] Speaker 04: So while this docket is open, then the agency [00:36:53] Speaker 04: hasn't taken kind of final action. [00:36:55] Speaker 04: We can debate whether it's final action, final agency action that has a specific meaning in administrative law. [00:37:04] Speaker 04: But as of now, the agency hasn't even taken final action because the docket's open. [00:37:10] Speaker 01: That's right, Your Honor. [00:37:11] Speaker 01: There hasn't been a determination, a final action, as you said. [00:37:14] Speaker 01: The docket is still open. [00:37:17] Speaker 04: And all they're saying is, well, at least give us a final action. [00:37:23] Speaker 04: close the docket, because how are we to know, you know, we could be kind of wasting our time filing a petition for rulemaking because you could close the docket by tomorrow, your client could, by saying, we're closing this docket because we're going to institute proposed rulemaking in 90 days. [00:37:50] Speaker 01: They cut your honor, I think a couple points on that is one that the act of whether they want to keep the docket open or closed goes to their wide latitude and discretion in managing their docket. [00:38:05] Speaker 01: That's a principle that this court has affirmed many times, including recently. [00:38:08] Speaker 01: just last month dismissing a different petition by the league related to a proceeding on cost of capital in front of the board where their petition was denied because they filed a petition in the wrong docket. [00:38:20] Speaker 01: It was case 12. [00:38:23] Speaker 01: I believe I have the citation for that case. [00:38:29] Speaker 01: Case number 23-1272. [00:38:32] Speaker 01: But in any event, the board has not issued a formal closure of the docket because these matters have not been finally decided. [00:38:40] Speaker 01: And that's been consistent practice in this docket. [00:38:43] Speaker 01: It opened the docket to initial. [00:38:45] Speaker 02: What matters have not been finally decided? [00:38:48] Speaker 02: That's what I'm not clear on. [00:38:50] Speaker 02: In other words, keeping the docket alive, as it were, is a wonderful way for the board to say, if you want any action filed, [00:39:01] Speaker 02: petition for a rulemaking. [00:39:04] Speaker 01: Yes, Your Honor, we believe that that would be the right course of action if any of the parties want to have the board decide affirmatively on one construction of revenue adequacy, the methodology, or based on the constraint that they should file a petition for rulemaking. [00:39:21] Speaker 01: Because this board made clear from the outset that this was purely an informational docket. [00:39:27] Speaker 01: The League and other constituents knew that. [00:39:30] Speaker 01: They said so in their comments to the board. [00:39:32] Speaker 01: There was no bait and switch whatsoever. [00:39:34] Speaker 01: This was meant to be a docket to discuss. [00:39:37] Speaker 01: And the record closed initially. [00:39:38] Speaker 01: And then the board did reopen the docket several years later after they had the rate reform task force do their report and had another hearing in the same docket to explore the issues further and then close the docket again. [00:39:52] Speaker 02: So I think that... Let me just be clear. [00:39:55] Speaker 02: If a petition for a rulemaking was filed, [00:40:00] Speaker 02: Why couldn't the board simply say, well, we're still exploring this issue. [00:40:06] Speaker 02: We don't know exactly what kind of rate reform we want to adopt, both procedurally and substantively. [00:40:18] Speaker 02: In other words, the board puts itself in a position where it looks responsible. [00:40:24] Speaker 02: But in terms of the people or the entities regulated, there is no way to get a decision. [00:40:32] Speaker 01: We would disagree with that, Judge Rogers, because they will get a decision. [00:40:37] Speaker 01: The board is required to give a decision on that petition. [00:40:40] Speaker 01: And we would say, too, that the answer to that decision could be, we do not want to institute a proceeding here. [00:40:47] Speaker 01: We have other competing priorities. [00:40:50] Speaker 01: We have limited resources, or we do not think your evidence is compelling. [00:40:54] Speaker 01: The agency has that entire breadth of discretion in how it wants to resolve. [00:40:59] Speaker 02: So the question is, it puts out [00:41:03] Speaker 02: this information, or it starts, opens this informational docket. [00:41:09] Speaker 02: And let's just hypothetically say all the significantly regulated parties and the small entities make a very conscientious effort, spend a lot of money, and file proposals. [00:41:29] Speaker 02: And it's clear that they're not all in harmony. [00:41:33] Speaker 02: And the board has to make some policy decisions as well as decide what is the appropriate balance of interest. [00:41:46] Speaker 02: So the question in a way is, look, we've done the homework for the board. [00:41:52] Speaker 02: And of course, the board can do some more homework. [00:41:55] Speaker 02: But board, tell us what you're proposing. [00:41:59] Speaker 02: And then we can provide additional [00:42:02] Speaker 02: directed comment. [00:42:03] Speaker 02: In other words, we haven't wasted the last, I don't know, almost 20 years trying to deal with the board on an informational track because it's just clear that the board has to make some decisions here. [00:42:22] Speaker 02: And anyone who files a petition for rulemaking could be [00:42:28] Speaker 02: You know, wasting its time and not just for the procedural reasons we were discussing earlier, but on substantive grounds. [00:42:36] Speaker 02: You know, it says do rulemaking a and the board says, well, now we have all these comments and say there's something wrong with rulemaking a So then somebody files rulemaking be and we just keep going and there's never any decision. [00:42:54] Speaker 01: Understand understandable judge Rogers. [00:42:57] Speaker 01: I think the answer to that is that the board would have to be put on the record in response to a petition for rulemaking with its decision about what next step to take and if that includes the denial of the petition, then they have to have reasons that are subject to judicial review [00:43:14] Speaker 01: for doing that. [00:43:16] Speaker 01: But the question, that's not the question that we're faced here with on mandamus. [00:43:21] Speaker 01: It's whether there is an underlying legal duty that they must do that in this docket. [00:43:25] Speaker 01: And although the board certainly must answer questions and take a position on a revenue adequacy petition that's filed appropriately [00:43:33] Speaker 01: Under the board's rules, which the league has done many times before Which the railroad interest did on exactly the revenue adequacy methodology that's being discussed here Then the board will go on the record and issue a final just determination there. [00:43:48] Speaker 04: That would be reviewable What's the What is the meaning of The board discontinuing an informational docket [00:44:01] Speaker 04: And is that the same as closing the docket? [00:44:07] Speaker 01: Pertaining to the prior precedents that the board has entertained, my understanding from those prior precedents is that that would have been the determination of the docket in not talking about the 722 proceeding. [00:44:22] Speaker 01: that it would have been the conclusion of the proceeding when the record closed in those prior dockets. [00:44:28] Speaker 01: But in this one, the record itself is closed, but the docket has not been closed. [00:44:33] Speaker 04: Well, yeah, I'm talking about back in 2012 when the Surface Transportation Board was addressing an information gathering proceeding. [00:44:45] Speaker 04: And they said, in the future, [00:44:50] Speaker 04: um should the board hold similar informational hearings the proceeding will be deemed automatically discontinued once the record closes unless the board announces otherwise prior to the close of the record so here the board didn't announce for this revenue adequacy information gathering exercise [00:45:21] Speaker 04: The board didn't make any advance announcement otherwise, so shouldn't the parties have followed what the board said earlier, meaning that when the record closed, the proceeding was deemed automatically discontinued. [00:45:43] Speaker 04: And you're telling me that discontinued is the same thing as closing the dock. [00:45:48] Speaker 04: I believe that's right. [00:45:52] Speaker 01: I do not have a. That's my understanding, but I don't have a firm answer on that. [00:46:00] Speaker 01: Judge Wilkins. [00:46:01] Speaker 01: I believe that's what happened in those prior cases. [00:46:04] Speaker 01: That's my understanding of what happened in those prior cases. [00:46:06] Speaker 04: But in this case, so why shouldn't [00:46:11] Speaker 04: We as a court, the regulated parties, and the public, everyone else, then believe that when the record closed here, you discontinued the proceedings. [00:46:23] Speaker 04: And the same as you said earlier, that meant that this docket is closed. [00:46:29] Speaker 04: But you're standing here telling me the docket's not closed. [00:46:32] Speaker 04: The docket's still open. [00:46:36] Speaker 01: Yes, I understand judge Wilkins that there does seem to be a disconnect between that ministerial treatment of the docket in those prior proceedings and this my understanding is that's the board's practices that they are kept open. [00:46:51] Speaker 01: or excuse me that they are closed when the record closed they are discontinued that's what that prior opinion said in this case the record was closed but the docket number itself i believe is open and that's why it continues to be reported in those congressional reports but i think what's clear is that we state that the record is closed and that the parties know the record is closed and that there's no further action on this docket that's anticipated or that the board has announced [00:47:21] Speaker 01: And so for the parties to know once the record closed that their time would be right to file a petition for rulemaking if they want a rulemaking on these topics, which is precisely what the railroads did and what the league could do in this situation as well. [00:47:37] Speaker 01: And on their remedies, they have filed many petitions for rulemaking before the board is required to respond to them. [00:47:44] Speaker 01: They could do the same in this case. [00:47:47] Speaker 01: And moreover, their members could file rate cases. [00:47:50] Speaker 01: Their concern ultimately is that they want to pay lower rates. [00:47:54] Speaker 01: And the way that that would happen would be, you know, presuming they meet all the statutory criteria to bring a rate case, it would be through a rate case. [00:48:02] Speaker 01: their impediment before they had stated was that under the annual determinations, the railroads had been found to be not revenue adequate, but for the better part of a decade, most of the class one railroads have been found revenue adequate under the yearly determinations. [00:48:19] Speaker 01: And although the yearly determinations are certainly not outcome determinative in a rate case proceeding, they would not serve as the same impediment. [00:48:28] Speaker 01: And they could file those rate cases at any time. [00:48:32] Speaker 01: unless there are any further questions. [00:48:35] Speaker 04: Judge Rogers. [00:48:38] Speaker 04: The child's nothing here. [00:48:39] Speaker 03: Thank you. [00:48:40] Speaker 04: Alright, thank you. [00:48:41] Speaker 04: Thank you. [00:48:44] Speaker 04: Alright, Mr. Coles are will give you 2 minutes for rebuttal. [00:48:51] Speaker 00: Thank you, your honor. [00:48:59] Speaker 05: The discussion. [00:49:00] Speaker 05: about discontinuing the docket automatically, we think is very important. [00:49:07] Speaker 05: The board has told us in its filing that in informational dockets, the cases discontinue automatically. [00:49:17] Speaker 05: In the present case, the case did not discontinue automatically. [00:49:26] Speaker 05: And we know that because the record closed in August of 2015, [00:49:30] Speaker 05: And in the first months of 2016, the board told the United States Congress on a quarterly basis that the case was pending. [00:49:42] Speaker 05: A fair interpretation of those facts is that ex parte 722 was not one of those lesser [00:49:52] Speaker 05: administrative, I don't remember the exact term that was used, menial dockets where the board simply wished to educate itself. [00:50:02] Speaker 05: A few other points. [00:50:10] Speaker 05: In re tenant, which we cited, this court's decision from 2004 talks about the court having future jurisdiction [00:50:20] Speaker 05: Once there has been a proceeding of some kind instituted before an agency or court that might lead to an appeal, it makes sense to speak of the matter as being within our appellate jurisdiction. [00:50:32] Speaker 05: We think there has been a proceeding of some kind pending at the board. [00:50:37] Speaker 05: And we also are of the view that there is a tension between what the board has been telling Congress in each of its quarterly reports and what the board's opposition filing looks like in the present case. [00:50:54] Speaker 05: I don't have a specific sentence to quote to you right now, but [00:50:58] Speaker 05: My reading of the opposition was that it suggested that matters were concluded. [00:51:04] Speaker 05: It was not a priority item. [00:51:06] Speaker 05: The board has moved on to more important issues, and that we should not be anticipating a decision in ex parte 722 in the near future. [00:51:21] Speaker 05: That's all that I have on the third questions. [00:51:24] Speaker 04: All right. [00:51:25] Speaker 04: Seeing no further questions, we'll take the matter under advisement. [00:51:28] Speaker 04: Thank you.