Law360 (July 8, 2019, 7:41 PM EDT) -- The U.S. Department of Transportation and the Federal Railroad Administration have told the D.C. Circuit it should end a lawsuit brought by railroad workers' unions objecting to the use of non-U.S. train crews on the U.S side of the Texas-Mexico border.
In a brief filed Friday, the government said there's no basis for the court to allow the unions — the Brotherhood of Locomotive Engineers and Trainmen and the transportation division of the International Association of Sheet Metal, Air, Rail and Transportation workers — to continue the suit, arguing that the unions haven't identified a specific agency action they are challenging.
The unions filed a petition for review with the D.C. Circuit in September, alleging that the DOT and FRA violated U.S. railroad safety and training rules when they allowed Kansas City Southern de Mexico to operate freight trains in the U.S. with crews from Mexico. The unions argued in that filing that they can't point to a specific order because the government took the contested action in this case “without public notice or other published documentation.”
The government said in its brief Friday that because there has been no action or order identified by the unions for the court to review, the lawsuit needs to be dismissed as required under the Hobbs Act and the Federal Rules of Appellate Procedure.
“At bottom, the unions are unhappy that the FRA has not taken enforcement action against KCSM for what the unions believe to be violations of FRA’s regulations. But it is well settled that the decision about whether to pursue enforcement action is committed to the agency’s discretion and is thus unreviewable,” the government argued.
“The unions assert that the FRA’s decision not to initiate enforcement proceedings against KCSM grants it a 'de facto waiver' of FRA safety regulations. But the unions may not obtain judicial review of an agency’s discretionary decision not to initiate enforcement proceedings by calling that decision a 'waiver.'”
According to court documents, the unions alleged that since July 2018 the government has allowed Kansas City Southern de Mexico, a non-U.S. railroad company, to operate freight trains in the U.S. without being subject to this country's “laws and regulations governing railroad operations.”
The government told the panel that the unions only took this action after first threatening to strike — prompting Kansas City Southern Railway and the Texas Mexican Railway Co. to ask for and receive in December 2018 an injunction from a federal judge in Texas preventing the move — and then sending a letter to President Donald Trump “imploring him to intervene in the dispute.”
According to court documents, Laredo, Texas, is ground zero for the dispute and is also the busiest port of entry for trains on the southern border. The Kansas City Southern Railway Co. and its wholly owned subsidiary, the Texas Mexican Railway, own the tracks and operate trains on the U.S. side of the border, while affiliate KCSM owns the tracks and operates the trains on the Mexican side of the border.
When a train crosses the border, an “interchange” process takes place that involves transferring rail cars and changing crews. Before 2018, KCSM interchanged trains and crews at the border, in the middle of the International Bridge, but “that approach did not work,” according to the government, which alleged it resulted in congestion at the border and shipping delays. Additionally, it would block up to 13 railroad-highway crossings during the process — meaning emergency responders and commuters were hindered.
To fix the problem, the three railroads worked out a plan to change crews at a rail yard nine miles north of the border, according to the government's brief, but asked the FRA for guidance on whether it needed to alter its certification program to allow for the change. After an FRA audit in August 2017, the FRA recommended some changes for engineer certification, but not for conductor certification, and the railroads received final FRA approval of the modifications in January 2018, according to the brief.
The parties did not immediately return messages seeking comment Monday.
The unions are represented by Kathy L. Krieger of James & Hoffman PC, Michael S. Wolly of Zwerdling Paul Kahn & Wolly PC, Kevin Broader of the International Association of Sheet Metal, Air, Rail and Transportation Workers' transportation division, and Lawrence M. Mann of Alper & Mann.
The government is represented by H. Thomas Byron III and James Y. Xi of the U.S. Department of Justice's Civil Division.
The case is Brotherhood of Locomotive Engineers and Trainmen et al. v. Federal Railroad Administration et al., case number 18-1235, in the U.S. Court of Appeals for the District of Columbia Circuit.