Court Derails Amtrak, Again

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Strawbridge Robinson

May 4 — The D.C. Circuit ruled against Amtrak—again.

Congress can't authorize “an economically self-interested actor to regulate its competitors” without running afoul of the due process clause, Judge Janice Rogers Brown wrote for the panel.

Given the unique nature of the statutory framework involved here, the U.S. Court of Appeals of the District of Columbia Circuit's decision isn't likely to cause a great deal of trouble for other agencies, Columbia Law School administrative law professor Peter Strauss told Bloomberg BNA May 4.

The court side-stepped another issue that could have caused great difficultly for other federal agencies, Strauss said—namely, whether an agency partially composed of board members not appointed by the President is unconstitutional.

These issues could end up before the U.S. Supreme Court, which already took a look at the case last term in DOT v. Ass'n of Am. R.R., 83 U.S.L.W. 4145, 2015 BL 62046 (U.S. March 9, 2015) (83 U.S.L.W. 1309, 3/10/15).

But whether the case will once again reach the high court is complicated by the vacancy left open by Justice Antonin Scalia, Strauss said. Scalia passed away unexpectedly Feb. 13.


Several federal agencies are “mixed bodies,” Strauss said, referring to the question left open by the D.C. Circuit about the constitutionality of agencies partially composed of board members not appointed by the President.

He pointed to the U.S. Postal Service and the Federal Open Market Committee.

These are agencies that have “enormous power over the American economy,” Strauss said.

A decision saying that these kinds of agencies violate the Constitution's appointment clause would have thrown a monkey wrench into these agencies' activities, he said.

But while the D.C. Circuit decided a separate appointment clause question, it avoided the mixed body issue.

Unfair Statutory Scheme

The court instead found that a statute allowing Amtrak to take part in developing “performance metrics and standards” violated the due process clause.

In particular, Section 207 of the Passenger Rail Investment and Improvement Act allows Amtrak and the Federal Railroad Administration to jointly develop standards for “enforcing Amtrak's statutory priority over other trains” for track time, the court said.

Fairness—the dominating due process consideration—doesn't allow an economically self-interested body to regulate its competitors, the court said.

The court, finding that Amtrak was such an economically self-interested body, said Amtrak was created to make a profit—even if it regularly fails to do so.

Moreover, the court said that the development of the standards allowed Amtrak to regulate its competitors because it forces “freight operators to alter their behavior.”

It noted that while Amtrak, a passenger rail service, doesn't directly compete with freight carriers, it does compete for a precious resource: track time.

The statutory scheme, therefore, was unconstitutional, the D.C. Circuit said.

Eight-Member Court

The D.C. Circuit may have been acting a bit stubbornly by treating Amtrak like a private entity here, Strauss said.

The appeals court previously said that Amtrak was a private entity and that Congress couldn't delegate regulatory power to such an entity.

But the Supreme Court reversed. It said Amtrak was a government agency—at least for purposes of the non-delegation doctrine.

It isn't clear, however, that the Supreme Court will take another look at the case, Strauss said.

Even though the court frequently hears cases that strike down federal statutes, the current eight-member composition of the court complicates whether the government will seek, and whether the justices will grant, certiorari here.

Without knowing who will be the ninth—and perhaps deciding—justice, it's hard to calculate the chances of victory, Strauss said.

Funny Math

Of course, the government could seek an en banc hearing first.

But the math gets “funny because there were two senior judges” on the panels, South Texas College of Law constitutional law professor Josh Blackman said on his blog. The two senior judges were David B. Sentelle and Stephen F. Williams.

While the “two senior judges don’t get to vote for the case to go en banc,” they “do get to sit on the en banc court,” he said.

“If it goes en banc, there would be six judges appointed by Republican Presidents. … With Garland recused, there would be six judges appointed by Democratic presidents,” Blackman noted. The Republican-appointed judges are Brown, Sentelle, Williams and Judges Karen LeCraft Henderson, Thomas B. Griffith and Brett M. Kavanaugh. The Democratic-appointed judges are Judith W. Rogers, David S. Tatel, Srikanth Srinivasan, Patricia A. Millett, Cornelia T. L. Pillard and Robert Leon Wilkins.

If each block of judges votes along party lines, that would affirm the panel decision, Blackman said.

But seeking en banc review might be a good strategical move, Strauss said. It could delay the case enough so that there is a full bench on the Supreme Court when the cert. petition is filed, he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Full text at

Request Litigation on Bloomberg Law