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STB Grants Amtrak Right to Pursue Freight Railroad for Lack of On-Time Performance Under PRIIA Section 213 Despite Current U.S. Supreme Court Review of Constitutionality of PRIIA Section 207

On December 19, 2014, the STB granted the National Railroad Passenger Corporation’s (Amtrak’s) Motion to Amend its Complaint, brought pursuant to the Passenger Rail Investment and Improvement Act of 2008 (PRIIA), to initiate an investigation by the Board into on-time performance issues affecting Amtrak trains on rail lines owned by the Canadian National Railway Company and its subsidiaries (collectively, CN). The Complaint was amended in two respects: (1) Amtrak narrowed the scope of the on-time performance issues to one route, the Illini/Saluki service between Chicago and Carbondale, Illinois, rather than the eight rail lines addressed in the original complaint; and (2) Amtrak now seeks to establish an independent basis for determining on-time performance under Section 213 of PRIIA. Amtrak’s complaint previously relied on PRIIA Sections 207 and 213, but the amendment seeks to respond to the ruling by the U.S. Court of Appeals for the District of Columbia Circuit, presently under review by the United States Supreme Court (see our posts dated December 8, 2014 and September 16, 2014), that Section 207 of PRIIA is unconstitutional. PRIIA Section 207 provides that the Federal Railroad Administration and Amtrak shall jointly develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity train operations, including on-time performance. PRIIA Section 213 mandates that the Board initiate an investigation where “on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters.” 49 U.S.C. § 24308(f)(1).

The STB also denied CN’s Motion to Dismiss Amtrak’s Complaint. CN’s Motion to Dismiss argued that the D.C. Circuit’s decision foreclosed Amtrak’s ability to bring a complaint. Alternatively, CN argued that the Board should stay the matter until the U.S. Supreme Court has ruled regarding PRIIA. The STB held that the invalidity of PRIIA Section 207 would not preclude the Board from construing the term “on-time performance” and initiating an investigation under Section 213 and, for this reason, also did not stay the matter.

Commissioner Ann Begeman dissented. She recommended that the Board initiate a rulemaking – where all interested stakeholders would be given the opportunity to offer public comment and develop a complete record – to establish clear standards by which on-time performance cases could be fairly processed. Commissioner Begeman correctly observed that under the current STB ruling, only two parties, Amtrak and CN, will provide the record that will establish the Section 213 standard that will “most assuredly be used in all other current and future cases, and have a far-reaching impact on the entire industry.”

CN’s Answer to Amtrak’s Amended Complaint is due by January 8, 2015. Opening arguments on how to define “on-time performance” are due by January 20, 2015 and replies are due by February 2, 2015.

To read the STB ruling in its entirety, please click here.