in the united states court of appeals for...

Nos. 16-3307, 16-3504, 16-3512, 16-3513, 16-3514 (consolidated)

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

UNION PACIFIC RAILROAD COMPANY, et al., Petitioners,

v.

SURFACE TRANSPORTATION BOARD; UNITED STATES OF AMERICA,

Respondents,

NATIONAL RAILROAD PASSENGER CORPORATION, et al., Intervenors.

On Petition for Review of a Final Rule

of the Surface Transportation Board

BRIEF FOR INTERVENOR NATIONAL RAILROAD PASSENGER CORPORATION

December 6, 2016

DAVID W. OGDEN JONATHAN PAIKIN KELLY P. DUNBAR ARI HOLTZBLATT DEREK A. WOODMAN WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6000

Appellate Case: 16-3307 Page: 1 Date Filed: 12/07/2016 Entry ID: 4477061

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the National Railroad

Passenger Corporation (“Amtrak”) states as follows:

Amtrak is a District of Columbia corporation that was created by the Rail

Passenger Service Act, 49 U.S.C. §§ 24101 et seq.

Amtrak has no parent corporations, but it has several subsidiaries. It has

three wholly owned subsidiaries: Chicago Union Station Company, Passenger

Railroad Insurance Limited, and Penn Station Leasing, LLC. It also owns a 99.9%

interest in Washington Terminal Company. The United States holds 100% of

Amtrak’s preferred stock. Amtrak’s common stock is held by American Premier

Underwriters, Inc. (a wholly owned, not publicly traded, subsidiary of American

Financial Group, Inc., which is publicly traded), Burlington Northern and Santa Fe

LLC (BNSF LLC is a wholly owned, not publicly traded, subsidiary of Berkshire

Hathaway, which is publicly traded), Canadian Pacific Railway, and Canadian

National Railway. None of Amtrak’s stock is publicly traded.


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TABLE OF CONTENTS Page

CORPORATE DISCLOSURE STATEMENT .......................................................... i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

SUMMARY OF ARGUMENT ................................................................................. 8

ARGUMENT ........................................................................................................... 11

I. THE BOARD HAS THE AUTHORITY TO ENFORCE THE FIRST SECTION 213 TRIGGER INDEPENDENT OF SECTION 207 METRICS ................... 11

A. The Text, Structure, And Purposes Of Section 213 Establish That The 80%Trigger Is Independent Of Section 207 Metrics ............................................................................. 12

1. The plain meaning of PRIIA’s text ........................................... 12

2. PRIIA’s structure and design .................................................... 15

3. PRIIA’s purposes ...................................................................... 18

B. The Board Reasonably Construed Any Statutory Ambiguity ............................................................................................ 19

C. Petitioners’ Statutory Arguments Are Unavailing .............................. 20

II. THE BOARD’S SUPPOSED FAILURE TO CONSIDER THE IMPACT ON FREIGHT TRAFFIC WAS NOT ARBITRARY AND CAPRICIOUS ........................... 23

III. THE BOARD REASONABLY ADOPTED AN ALL-STATIONS STANDARD ...................................................................................................... 26

CONCLUSION ........................................................................................................ 31

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

CASES Page(s)

Association of American Railroads v. Department of Transportation, 821 F.3d 19 (D.C. Cir. 2016) ........................................................................... 6

Bayou Lawn & Landscape Services v. Secretary of Labor, 713 F.3d 1080 (11th Cir. 2013) .................................................................................... 21

City of St. Louis v. Department of Transportation, 936 F.2d 1528 (8th Cir. 1991) ............................................................................................... 28

Contemporary Industry Corp. v. Frost, 564 F.3d 981 (8th Cir. 2009) .................... 12

Downer v. U.S. Department of Agriculture & Soil Conservation Service, 97 F.3d 999 (8th Cir. 1996) ............................................................. 22

Gatewood v. Outlaw, 560 F.3d 843 (8th Cir. 2009) ................................................ 12

Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995) ....................... 3

Lopez v. Davis, 531 U.S. 230 (2001) ....................................................................... 23

Loughrin v. United States, 134 S. Ct. 2384 (2014) ............................................ 13, 14

Miller v. Whitehead, 527 F.3d 752 (8th Cir. 2008) ................................................. 23

National Railroad Passenger Corp. v. Atchison, Topeka & Santa Fe Railway Co., 470 U.S. 451 (1985) ............................................................... 2, 3

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ....................................................... 13

Resolution Trust Corp. v. CedarMinn Building Ltd. Partnership, 956 F.2d 1446 (8th Cir. 1992) ....................................................................... 13

Russello v. United States, 464 U.S. 16 (1983) ......................................................... 14

SEC v. Chenery Corp., 332 U.S. 194 (1947) ........................................................... 23

Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010)...................... 14

Southwestern Bell Telephone Co. v. FCC, 153 F.3d 523 (8th Cir. 1998) .............................................................................................................. 28


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St. Anthony Hospital v. U.S. Department of Health & Human Services, 309 F.3d 680 (10th Cir. 2002) ........................................................ 22

United States v. Gonzales, 520 U.S. 1 (1997) .......................................................... 12

United States v. Kirk, 528 F.3d 1102 (8th Cir. 2008) .............................................. 22

United States v. Mead, 533 U.S. 218 (2001) ........................................................... 19

United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989) .......................... 12

Van Hollen, Jr. v. Federal Election Commission, 811 F.3d 486 (D.C. Cir. 2016) ............................................................................................. 19

STATUTES

49 U.S.C. § 24101 ................................................................................................ 5, 17, 27 § 24103 ............................................................................................................ 4 § 24308 ...................................................................................................passim

Amtrak Improvement Act of 1973, Pub. L. No. 93-146, 87 Stat. 548 ...................... 3

Passenger Rail Investment and Improvement Act, Pub. L. No. 110-432, 122 Stat. 4907 (2008) .................................................................. 5, 14, 16

Rail Passenger Service Act of 1970, Pub. L. No. 91-518, 84 Stat. 1327 (1970) ........................................................................................................... 2, 3

LEGISLATIVE MATERIALS

H.R. Rep. No. 91-1580 (1970) ................................................................................... 3

S. Rep. No. 110-67 (2007) ......................................................................... 3, 4, 18, 24

Financial Assistance to Amtrak: Hearing on H.R. 8351 Before the Subcommittee on Transportation & Aeronautics of the House Committee on Interstate & Foreign Commerce, 93d Cong. (1973) ............................................................................................................... 3

OTHER AUTHORITIES

Adequacy of Intercity Rail Passenger Service, 344 I.C.C. 758 (1973) ................... 17


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Amtrak, National Fact Sheet: FY 2015 (July 2016), https://www.amtrak.com/ccurl/998/601/Amtrak-National-Fact-Sheet-FY2015,0.pdf ............................................................................................... 1, 2

Metrics and Standards for Intercity Passenger Rail Service Under Section 207 of the Passenger Rail Investment and Improvement Act of 2008, 75 Fed. Reg. 26,839 (May 11, 2010) ........................................ 16

Office of the Inspector General, U.S. Department of Transportation, Report No. CR-2008-047, Effects of Amtrak’s Poor On-Time Performance (Mar. 28, 2008) .......................................................................... 4

Office of the Inspector General, U.S. Department of Transportation, Report No. CR‐2008‐076, Root Causes of Amtrak Train Delays (Sept. 8, 2008) .................................................................................................. 4

Office of the Inspector General, U.S. Department of Transportation, Report No. CR-2012-148, Analysis of the Causes of Amtrak Train Delays (July 10, 2012) ........................................................................... 4

Policy Statement on Implementing Intercity Passenger Train On-Time Performance and Preference Provisions of 49 U.S.C. § 24308(c) and (f), Docket No. EP-728 (STB July 28, 2016) ....................... 26

STB Decision, National Railroad Passenger Corporation—Section 213 Investigation of Substandard Performance on Rail Lines of Canadian National Railway Company, Docket No. NOR 42134 (Dec. 19, 2014) .......................................................................... 7, 8, 12, 17, 18


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STATEMENT OF THE CASE

For decades, Congress has mandated that freight railroads honor their

statutory obligation to provide “preference” to Amtrak’s trains over rail lines

owned and dispatched by freight railroads, thereby ensuring the American people

realize the benefit of passenger trains reliably arriving on time. Frustrated at what

it believed was widespread lack of compliance by the freight railroads and the

resulting abysmal on-time performance of Amtrak trains on freight-owned lines,

Congress voted overwhelmingly and in a bipartisan manner in 2008 to enact the

Passenger Rail Investment and Improvement Act (PRIIA).

In PRIIA, Congress assigned the Surface Transportation Board (the Board)

the authority, and in some cases, the duty, to investigate causes of poor on-time

performance of Amtrak’s trains, as well as other service quality issues; recommend

how to fix them; and, where it discovers violations, enforce Amtrak’s preference

rights. In other words, PRIIA assigns to the Board the critical job of getting to the

bottom of poor passenger rail on-time performance and other issues, including on

freight-owned rails, and coming up with solutions. This case represents part of a

continuing effort by the freight railroads to prevent the Board from performing the

crucial role Congress assigned it.

1. Each day, Amtrak’s nationwide rail network operates more than 300

trains carrying an average of more than 84,600 passengers. See Amtrak, National


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Fact Sheet: FY 2015 (July 2016). Amtrak trains traverse 21,300 route miles,

through 46 states, the District of Columbia, and three Canadian provinces, serving

more than 500 destinations and employing more than 20,000 employees. Id.

During FY 2015, Amtrak provided service to 30.8 million passengers. Id.1

Outside the Northeast corridor and short stretches elsewhere, where Amtrak owns

the tracks and dispatches the trains, Amtrak trains run primarily over lines owned

and controlled by freight railroads.

2. Before Amtrak began operations in 1971, railroads as common carriers

were legally obligated to provide intercity passenger rail service. National R.R.

Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 454 (1985)

(cited at JA73). By 1970, however, intercity passenger rail service in the United

States had become unprofitable. Id. Despite railroads’ desire to terminate that

service, Congress decided that “the public convenience and necessity require[d] the

continuance and improvement of such service.” Rail Passenger Service Act of 1970

(RPSA), Pub. L. No. 91-518, § 101, 84 Stat. 1327, 1328 (1970).

Congress enacted the RPSA to preserve passenger rail service by creating

Amtrak as a way to relieve freight railroads of their obligation to provide those

1 Many of those passengers (14.7 million or 48%) travelled on short-distance routes, the fastest growing contingent of Amtrak’s ridership. See Amtrak, National Fact Sheet: FY 2015 (July 2016). Five of those routes had ridership that topped one million in FY 2015, and three served over a half-million passengers. Id.


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services. See Pub. L. No. 91-518, § 101, 84 Stat. at 1328; H.R. Rep. No. 91‐1580,

at 1 (1970) (cited at JA194); see also Lebron v. National R.R. Passenger Corp.,

513 U.S. 374, 383-384 (1995) (cited at JA17); National R.R. Passenger Corp., 470

U.S. at 454-455; S. Rep. No. 110-67, at 1 (2007) (cited at JA13). The RPSA

provided procedures through which freight railroads could transfer their passenger

service and common-carrier obligations to Amtrak, so long as the “host railroads”

in exchange provided Amtrak with the use of tracks and other facilities. See

National R.R. Passenger Corp., 470 U.S. at 455.

3. Almost immediately after passage of the RPSA, freight railroads

began to prioritize freight traffic over passenger trains, with the average on-time

arrival of long-distance trains plummeting from greater than 70% in 1972 to 35%

in 1973. Financial Assistance to Amtrak: Hearing on H.R. 8351 before the

Subcomm. on Transp. & Aeronautics of the H. Comm. on Interstate & Foreign

Commerce, 93d Cong. 29-32 (1973) (cited at JA194). In response to that sharp

decline in passenger train performance, Congress in 1973 enacted a law requiring

freight railroads to give Amtrak trains “preference” on every rail line, crossing, and

junction. See Amtrak Improvement Act of 1973, Pub. L. No. 93-146, § 10(2), 87

Stat. 548, 552 (now codified at 49 U.S.C. § 24308(c)). The statutory right to

preference, however, did not prevent freight train interference or improve

Amtrak’s performance as intended.


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Before PRIIA was enacted, Amtrak could enforce its preference right only if

the Attorney General initiated a civil action against freight railroads seeking

equitable relief, see 49 U.S.C. § 24103(a), and the Department of Justice has

initiated only a single such action since 1973, see JA66. With insufficient

incentive to improve passenger train performance, freight railroads continued to

ignore Amtrak’s preference right. See S. Rep. No. 110-67, at 10 (“long-distance

services also routinely suffer significant delays … caused by freight train

interference”); Office of the Inspector Gen., U.S. Dep’t of Transp., Report No. CR‐

2008‐076, Root Causes of Amtrak Train Delays iv, 4 (Sept. 8, 2008).

As a result, from 2002 to 2007, interference from freight trains was the

leading cause of Amtrak delays. See Office of the Inspector Gen., U.S. Dep’t of

Transp., Report No. CR‐2012‐148, Analysis of the Causes of Amtrak Train Delays

5 (July 10, 2012) (cited at JA67). Those delays obviously impose significant

burdens on passengers and they cost Amtrak, and ultimately taxpayers,

approximately $137 million per year. Office of the Inspector Gen., U.S. Dep’t of

Transp., Report No. CR‐2008‐047, Effects of Amtrak’s Poor On‐Time Performance

4 (Mar. 28, 2008) (cited at JA199).

4. In 2008, a majority of Senators and Representatives from both parties

passed PRIIA to protect railroad passengers by addressing Amtrak’s inability to


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achieve reliable on-time performance. See PRIIA, Pub. L. No. 110-432, Div. B,

§ 213, 122 Stat. 4907, 4925-4927 (2008). PRIIA does that in several ways.

Congress required the Board to investigate substandard on-time performance

and other service issues. PRIIA Section 213 creates two triggers for an

investigation. Under the first trigger (or the “80% trigger”), Amtrak, host

railroads, and States or other entities that fund Amtrak operations may require the

Board to investigate if the “on-time performance” of any intercity passenger train

averages less than 80% for two consecutive calendar quarters. 49 U.S.C.

§ 24308(f)(1). Under the second trigger, the Board may be required to investigate

if “the service quality of intercity passenger train operations for which minimum

standards are established under section 207 of [PRIIA] fails to meet those

standards for 2 consecutive calendar quarters.” Id. In Section 207, Congress

directed the Federal Railroad Administration (FRA) and Amtrak jointly to develop

the standards referenced in the second trigger. 49 U.S.C. § 24101 note.

Once a PRIIA Section 213 investigation has begun, the Board must

“determine whether and to what extent delays or failure to achieve minimum

standards” were caused by host railroads or Amtrak. 49 U.S.C. § 24308(f)(1). At

the conclusion of the investigation, the Board must “identify reasonable measures

and make recommendations to improve the service, quality, and on-time

performance of the train.” Id. If the Board determines that delays “are attributable


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to a rail carrier’s failure to provide preference”—that is, if delays are the result of

host railroads’ failure to meet their statutory obligations—the Board may award

damages and “prescib[e] such other relief.” Id. § 24308(f)(2).

5. Acting pursuant to Section 207 of PRIIA, FRA and Amtrak issued

metrics and standards in May 2010. In August 2011, the Association of American

Railroads (AAR)—the trade association for the railroad industry and a petitioner

here—challenged the metrics and standards, arguing that Section 207

unconstitutionally delegated rulemaking authority to Amtrak, a private entity.

After decisions by the district court, the D.C. Circuit, and the Supreme Court, the

D.C. Circuit held in 2016 that Section 207 is unconstitutional. See Association of

Am. R.Rs. v. Department of Trans., 821 F.3d 19, 34-36 (D.C. Cir. 2016).

6. In January 2012, Amtrak filed a complaint with the Board based on

the “substandard performance of Amtrak passenger trains” on rail lines owned by

the Canadian National Railway Company (CN). JA11-12. And in November

2014, Amtrak filed a complaint initiating an investigation into the substandard

performance of Amtrak trains on the Capitol Limited train that runs between

Washington, D.C. and Chicago on rail lines owned and dispatched by petitioners


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CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company.

JA13.2

While litigation over the constitutionality of Section 207 was pending,

Amtrak moved to amend its complaint in the CN investigation, changing the basis

of the investigation from a failure to satisfy the Section 207 metrics (the second

statutory trigger) to a failure to meet the 80% trigger (the first statutory trigger). In

December 2014, the Board granted Amtrak’s motion and denied CN’s motion to

dismiss. In doing so, the Board held that Congress created two independent

triggers for a PRIIA Section 213 investigation, so that, even without valid

Section 207 metrics, the Board “may independently set forth and implement a

definition [of on-time performance].” STB Decision, National Railroad Passenger

Corporation—Section 213 Investigation of Substandard Performance on Rail

Lines of Canadian National Railway Company, Docket No. NOR 42134, at 9 (Dec.

19, 2014) (Illini/Saluki Decision). The Board directed the parties to the

2 Each investigation was based on overwhelming evidence of significant on-time performance deficiencies caused by the host railroads. See Amtrak Compl. 21-24, Docket No. NOR 42134 (Jan. 19, 2012) (CN’s All Stations on-time performance for various routes in FY 2011 was less than 49% and 55%, respectively; CN interference delayed as many as 83% to 99% of trips on some routes); Amtrak Compl. 2, Docket No. NOR 42141 (Nov. 17, 2014) (“All-stations on time performance of the Capitol Limited service was 20.4 percent [in the quarter ending September 30, 2014] and it was 27.8 percent in the previous quarter.”).


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Illini/Saluki proceeding to brief “how to construe the term ‘on-time performance’

… as the term is used in [Section 213].” Id. at 11.

In response, the AAR petitioned the Board to initiate a rulemaking to clarify

the meaning of “on-time performance,” in the context of triggering a PRIIA

Section 213 investigation, rather than having that standard decided in an

adjudication, as the Board was prepared to do. SA2. Representatives of each

petitioner here endorsed that petition. SA11-12.

In the rulemaking, the Board adopted a historically accepted standard for

measuring “on-time performance” for the purpose of determining its jurisdiction to

initiate a Section 213 investigation. JA377-379, 383-386. After reviewing

comments filed by Amtrak, petitioners, and numerous states, cities, public interest

groups, and other interested parties, the Board adopted an “All-Stations” on-time

performance standard with a 15-minute schedule allowance, as opposed to the

“End Point” standard the Board had initially proposed. Under the Rule, the Board

can initiate an investigation only if a train departs and arrives within 15 minutes of

its scheduled time at stations on its route less than 80% of the time. JA385-386.

SUMMARY OF ARGUMENT

Section 213 of PRIIA grants the Board the power—and sometimes the

obligation—to investigate the causes of delays and poor service quality of Amtrak

trains. Section 213 unambiguously creates two independent triggers for such


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investigations. An investigation is warranted if either (1) “the on-time

performance of any intercity passenger train averages less than 80 percent for any

2 consecutive calendar quarters”; “or” (2) “the service quality of intercity

passenger train operations for which minimum standards are established under

Section 207 of [PRIIA] fails to meet those standards for 2 consecutive calendar

quarters.” 49 U.S.C. § 24308(f).

The Board was prepared to define the circumstances under which the first of

the two triggers would be satisfied during the CN adjudication, just as a court or

administrative tribunal may apply the law in the course of ruling on a contested

matter. But petitioners insisted that the Board address that question through a

rulemaking, and the Board agreed, staying the CN adjudication, engaging in

notice-and-comment rulemaking, and then issuing the Rule. In the Rule, the Board

reaffirmed its conclusion—announced in the Illini/Saluki Decision—that Congress

had assigned the Board the authority to enforce the 80% trigger independent of any

metrics adopted under Section 207. The Board then adopted an “All-Stations” on-

time performance standard for purposes of the 80% trigger, a standard consistent

with Congress’s aims and regulatory history, and well-supported by the record.

Petitioners raise three challenges to the Rule, but none is persuasive.

Petitioners’ lead argument is that the Board lacks the statutory authority to apply

the 80% trigger because there are no valid metrics or standards issued under


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Section 207. That is incorrect. The text, structure, and purpose of PRIIA make

clear that the Board has the authority—indeed the obligation—to apply the 80%

trigger, independent of the second trigger and independent of any metrics that

might have been issued under Section 207. And even if PRIIA were ambiguous on

this point—it is not—the Board’s interpretation is entitled to deference.

Petitioners also argue that the Board acted arbitrarily by failing to consider

the Rule’s impact on freight traffic. That is meritless. The Rule affects only

whether the Board can initiate an investigation and therefore imposes no

operational requirements or other burdens on freight railroads that the Board failed

to consider. Nor did the Board err by neglecting to consider the costs of

investigations. Congress chose to impose those costs when enacting Section 213,

and the Board must honor that choice.

Finally, petitioners challenge the Board’s choice to apply an “All-Stations”

standard. Petitioners ignore that the All-Stations standard accords with the text of

the statute and prior regulatory approaches, and directly advances Congress’s

desire to improve the overall performance of passenger trains. Petitioners also

overlook the overwhelming record evidence demonstrating the benefits of an All-

Stations approach. Instead, they argue that Amtrak’s current schedules are not

designed for an All-Stations approach, but the Board reasonably concluded that


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where appropriate, schedules could be modified going forward and that, if they

were not, the Board could address such issues in an investigation.

ARGUMENT

I. THE BOARD HAS THE AUTHORITY TO ENFORCE THE FIRST SECTION 213 TRIGGER INDEPENDENT OF SECTION 207 METRICS

In Section 213 of PRIIA, Congress assigned the Board the authority—and in

certain cases, the duty—to investigate why Amtrak trains running on freight-

railroad lines are running late or providing poor service quality. And Congress

created two “triggers” for such investigations—one linked to the Section 207

process, and the other not. See 49 U.S.C. § 24308(f).

In issuing the Rule, the Board held that it has the statutory authority to apply

the 80% trigger irrespective of metrics or standards under Section 207, or whether

they exist at all. That conclusion is mandated by PRIIA’s text, structure, and

purposes. At the least, it is a reasonable construction of the statute. Petitioner’s

contrary arguments—which reduce to the proposition that PRIIA as a whole has

been rendered inoperative a result of the D.C. Circuit’s invalidation of Section 207

metrics—are unavailing.


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A. The Text, Structure, And Purposes Of Section 213 Establish That The 80%Trigger Is Independent Of Section 207 Metrics

1. The plain meaning of PRIIA’s text

Interpretation of Section 213 “begins, as always, with the statutory

text.” United States v. Gonzales, 520 U.S. 1, 3 (1997); accord Contemporary

Indus. Corp. v. Frost, 564 F.3d 981, 984-985 (8th Cir. 2009). As the Supreme

Court has explained, “where … the statute’s language is plain,” that “is also where

the inquiry should end” because “‘the sole function of the courts is to enforce [the

statute] according to its terms.’” United States v. Ron Pair Enters., Inc., 489 U.S.

235, 241 (1989); see also Frost, 564 F.3d at 984-985 (applying Ron Pair).

As the Board explained in the Illini/Saluki Decision—which it expressly

incorporated in the rulemaking below, JA3803—“[t]he plain language of Section

213” creates two, independent triggers for an investigation. Illini/Saluki Decision

6-7. As the Board further explained, “nothing in PRIIA requires the below-80-

percent on-time performance threshold of Section 213 to be defined pursuant to

Section 207[.]” Id. at 8-9.4

3 Cf. Gatewood v. Outlaw, 560 F.3d 843, 847 (8th Cir. 2009) (considering rationales offered in “various prior interim rules, Program Statements, and litigation positions”). 4 Petitioners’ assertion (at 30) that “[t]he Board does not claim that Congress vested it with authority to define On-Time Performance when Congress enacted PRIIA” is therefore wrong. The conclusion that Section 213 creates independent triggers—one tied to Section 207, the other not—necessarily means the Board may “independently set forth and implement” the first trigger. Illini/Saluki Decision 9.


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That statutory analysis is plainly correct. Under Section 213, an investigation

is warranted if Board determines either that (1) “the on-time performance of any

intercity passenger train averages less than 80 percent for any 2 consecutive

calendar quarters”; “or” (2) “the service quality of intercity passenger train

operations for which minimum standards are established under Section 207 of

[PRIIA] fails to meet those standards for 2 consecutive calendar quarters.”

49 U.S.C. § 24308(f). Congress made clear that each trigger should operate

independently by listing them disjunctively, separated by “or.” As the Supreme

Court and this Court have repeatedly emphasized, the “‘ordinary use’” of the term

“or” “‘is almost always disjunctive, that is, the words it connects are to be given

separate meanings.’” Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014);

accord Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979); Resolution Trust Corp.

v. CedarMinn Bldg. Ltd. P’ship, 956 F.2d 1446, 1452-1453 (8th Cir. 1992).

The text is equally clear that, although the second trigger depends on

standards issued under Section 207, the first does not. The second trigger expressly

references Section 207, authorizing an investigation based on “service quality …

for which minimum standards are established under Section 207 of [PRIIA].” 49

U.S.C. § 24308(f) (emphasis added). The first trigger, by contrast, includes no

reference to Section 207 or to “standards.” Congress in that way made a deliberate

judgment to link the second, but not the first, trigger to Section 207 standards.


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Congress’s decision must be given effect. “[W]hen ‘Congress includes

particular language in one section of a statute but omits it in another’—let alone in

the very next provision—this Court ‘presume[s]’ that Congress intended a

difference in meaning.” Loughrin, 134 S. Ct. at 2390; see also Russello v. United

States, 464 U.S. 16, 23-24 (1983) (“Congress acts intentionally and purposely in

the disparate inclusion or exclusion of statutory text”); Sierra Club v. Otter Tail

Power Co., 615 F.3d 1008, 1015 (8th Cir. 2010) (similar).

Indeed, application of that established interpretive principle is even more

appropriate here because other sections of PRIIA confirm that when Congress

intended to tie a requirement to Section 207, it did so expressly. For example,

Section 210 requires Amtrak to evaluate and rank the performance of its routes

“[u]sing the financial performance metrics developed under Section 207 of

[PRIIA].” Pub. L. No. 110-432, § 210(a), 122 Stat. at 4918 (emphasis added).

Section 222 likewise refers explicitly to “metrics and standards … established

under section 207” in mandating that “Amtrak shall develop and implement a plan

to improve on-board service pursuant to the metrics and standards for such service

developed under that section.” Id. § 222(a), 122 Stat. at 4932 (emphasis added).

Congress thus plainly knew how to specify that a provision should be linked to

Section 207 metrics, and its decisions about which provisions of PRIIA depend


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upon Section 207 and which do not underscore that the 80% trigger is not linked to

Section 207.

Additional aspects of Section 213 reinforce that point. Section 213

repeatedly distinguishes on-time performance—what Congress called “delays”—

from “minimum standards” issued under Section 207. Thus, for example,

Congress specified that “the Board shall initiate … an investigation to determine

whether and to what extent delays or failure to achieve minimum standards are due

to causes that could reasonably be addressed by” a host railroad or Amtrak.

49 U.S.C. § 24308(f)(1) (emphasis added). And Congress explained that, “[i]f the

Board determines that delays or failures to achieve minimum standards

investigated … are attributable to a rail carrier’s failure to provide preference to

Amtrak …, the Board may award damages[.]” Id. § 24308(f)(2) (emphasis added);

see also id. § 24308(f)(3)(A) (referencing “delays or failures to achieve minimum

standards” (emphasis added)); id. § 24308(f)(4) (same). Congress’s reference to

“delay” as a distinct category from failure to achieve “minimum standards”

confirms that Congress understood that the 80% trigger was different from a

trigger based on Section 207 “minimum standards.”

2. PRIIA’s structure and design

The structure of PRIIA confirms the plain meaning of the text. In particular,

Congress’s decision to make Section 213 immediately operative and to obligate the


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Board to apply the 80% trigger in certain circumstances demonstrates that

Congress knew the Board might well apply the first trigger regardless of whether

FRA and Amtrak had issued metrics and standards under Section 207.

The design of the statute leaves no doubt that Congress understood it could

take time for FRA and Amtrak to develop metrics and standards under

Section 207: PRIIA set a 180-day deadline for that task, and then authorized any

party to initiate “binding arbitration” if FRA and Amtrak failed to meet the

deadline. See Pub. L. No. 110-432, § 207(a), (d), 122 Stat. at 4916-4917. Indeed,

after FRA issued preliminary metrics and standards and solicited comments, the

final metrics and standards were not published until May 2010. See Metrics and

Standards for Intercity Passenger Rail Service Under Section 207 of the Passenger

Rail Investment and Improvement Act of 2008, 75 Fed. Reg. 26,839 (May 11,

2010).

Yet nothing in the statute postponed activation of the 80% trigger—either

for a set period of time or until some condition precedent had occurred. To the

contrary, Congress used mandatory language to obligate the Board to investigate

complaints submitted by either Amtrak or a host railroad that satisfy the 80%-on-

time-performance threshold: upon receiving such a complaint “the Board shall

initiate … an investigation.” 49 U.S.C. § 24308(f)(1) (emphasis added). By using

compulsory language and by making the 80% trigger immediately operative,


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Congress understood the Board might evaluate delays without any guidance from

metrics and standards developed under Section 207.

Congress had good reasons for authorizing the Board to address on-time

performance issues independent of the Section 207 process. Although many of the

metrics and standards that Congress directed FRA and Amtrak to “develop” under

Section 207 were entirely “new,” “on-time performance” was a standard “already

existing at the time of PRIIA’s passage.” Illini/Saluki Decision 7 (internal

quotation marks omitted). As the Board explained, “since 1981, Congress has

explicitly set an all-stations on-time performance goal, which states ‘Amtrak shall

… operate Amtrak trains, to the maximum extent feasible, to all station stops

within 15 minutes of the time established in public timetables.” Id. at 7-8

(alteration in original) (citing 49 U.S.C. § 24101(c)(4)). And an All-Stations

standard had last been used by the Board’s processor, the Interstate Commerce

Commission. See Adequacy of Intercity Rail Passenger Serv., 344 I.C.C. 758, 809

(1973).5

Given Congress’s statutory directive of measuring on-time performance at

“all station stops” as well as that regulatory history using an All-Stations approach,

the Board was arguably required to use an All-Stations standard in applying the

5 Congress was aware of these pre-existing standards: Section 207 directs FRA and Amtrak to “develop new or improve existing metrics and minimum standards.” 49 U.S.C. § 24101 note (emphasis added).


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80% trigger. JA194-196. At a minimum, that statutory and regulatory background

makes clear that, unlike the “new” service quality standards relevant to Section

213’s second trigger, on-time performance already “ha[d] … legal meaning under

Section 213 apart from [the Section 207] standards,” and so could readily be

evaluated by the Board, without waiting for the Section 207 process to be

completed. Illini/Saluki Decision 8 n.24 (third alteration in original) (internal

quotation marks omitted).

3. PRIIA’s purposes

Finally, PRIIA’s purposes reinforce the conclusion that Congress designed

the 80% trigger to operate independently of Section 207. Relying on PRIIA’s

legislative history, the Board has explained that the “‘intent of’” Section 213 was

“‘to provide a forum’ (and a less ‘cumbersome’ process) ‘for the adjudication of

service disputes, including on-time performance problems.’” Illini/Saluki Decision

8 (quoting S. Rep. No. 110-67, at 26). “Congress intended for the Board to resolve

on-time performance disputes between Amtrak and host carriers because of

‘increasing frustration’ under the prior dispute resolution process, ‘while passenger

train performance continues to decline or remain dismal on certain routes.’” Id.

(quoting S. Rep. No. 110-67, at 26). Congress addressed these concerns by

“expressly prioritiz[ing] [Board] enforcement of Amtrak’s on-time performance”

among the other issues the statute was designed to address. Id. at 6.


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Separating Section 213’s first trigger from Section 207 directly advances

Congress’s goal of improving on-time performance. As explained above,

Congress reasonably could have been concerned about when and even if

Section 207’s process would be complete and what the ultimate standard might be.

See supra Section I.A.2. Tying the 80% first trigger to completion of the Section

207 process would have unnecessarily risked postponement of PRIIA’s most

important objective—improving on-time performance of Amtrak’s trains.

B. The Board Reasonably Construed Any Statutory Ambiguity

As explained in Section I.A above, the text, structure, and purposes of

PRIIA unambiguously establish the Board’s authority to administer the 80%

trigger independent of the Section 207 process. At a minimum, as the Board has

explained (at 25-26), that interpretation of the statute is a reasonable one entitled to

deference. See United States v. Mead, 533 U.S. 218, 229-230 (2001) (adjudicatory

authority is “a very good indicator of delegation meriting Chevron [deference]”).

Indeed, Congress’s express reference to Section 207 in the second trigger but not

in the first itself suggests that Congress decided to “‘leave the question’” of how to

apply the first trigger “‘to agency discretion.’” Van Hollen, Jr. v. Federal Election

Commission, 811 F.3d 486, 493-494 (D.C. Cir. 2016).


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C. Petitioners’ Statutory Arguments Are Unavailing

Against this wealth of interpretive evidence, petitioners argue that the Board

is disabled from interpreting the statute that Congress charged it with enforcing—

and is thereby barred from performing any of Section 213’s investigatory and

adjudicatory functions—in the wake of the D.C. Circuit’s decision that Section 207

is unconstitutional. That conclusion is counterintuitive, to say the least, and

petitioners’ arguments in support of it are unconvincing.

Petitioners’ lead contention is that “Congress gave the rulemaking power …

to define On-Time Performance” to FRA and Amtrak and that the Board’s role is

limited to “consult[ing]” with FRA and Amtrak. Pet. Br. 27. And, petitioners

argue, “[w]hen Congress has expressly delegated authority to a particular agency

to issue a rule, a different agency lacks the power to issue that rule.” Id.

The basic problem with that argument is that PRIIA assigns the Board not

only a consultative role under Section 207; it also expressly delegates to the Board

the authority (and indeed, obligation) to initiate and administer Section 213

investigations. And, as explained above, that delegation of authority obligates the

Board to determine the jurisdictional prerequisite for such investigations—that is,

to apply the 80% trigger. Petitioners’ argument thus obviously would be correct

with respect to the second trigger: Because no valid “minimum standards …

established under Section 207” are in effect, the Board is currently disabled from


- 21 -

applying the second trigger. But petitioners are incorrect with respect to the first

trigger, which is both independent of the second and not textually linked to the

Section 207 process. Petitioners elide those dispositive textual differences.

This statutory scheme thus differs markedly from the regime at issue in

Bayou Lawn & Landscape Services v. Secretary of Labor, 713 F.3d 1080 (11th Cir.

2013). That statute granted the Department of Labor only consultative power and

not also, as here, the duty to implement a statutory mandate. Moreover, quite

unlike the statute in Bayou Lawn & Landscape, PRIIA contains numerous textual

cues, recounted above, that confirm the Board’s authority to apply the 80% trigger

independent of Section 207. Cf. id. at 1083-1084.

Petitioners also object (at 28) that permitting the Board to apply the 80%

trigger independent of Section 207 metrics would “absurd[ly]” and “irrationally”

threaten to expose host railroads to inconsistent “standards.” But, among other

things, that objection rests on the mistaken premise that the All-Stations standard

adopted is anything other than the trigger for an investigation. There is nothing

inconsistent, much less “absurd,” about Congress establishing two potential ways

an investigation might start, particularly in a statute that was enacted to redress the

absence of enforcement.

In addition, at times petitioners hint that the Board exceeded its authority not

because it applied the 80% trigger independent of Section 207 metrics, but because


- 22 -

it did so by promulgating the Rule through notice-and-comment rulemaking. E.g.,

Pet. Br. 35. Petitioners are doubly barred from making this argument. For one

thing, if petitioners intend to argue the Board has no rulemaking authority, they

were obligated to say so expressly, on pain of waiver, and they did not. See United

States v. Kirk, 528 F.3d 1102, 1104 n.2 (8th Cir. 2008) (“‘undeveloped issues

perfunctorily adverted to … are waived’”).

In fact, petitioners studiously avoid making that argument expressly no

doubt because it was petitioners who convinced the Board not to address on-time

performance in an investigation (a path Amtrak urged) but to do so by rule. See

SA1-11. Having persuaded the Board to proceed by rulemaking, petitioners cannot

now argue that path is unavailable. Not only was this objection not raised before

the Board, see Downer v. U.S. Dep’t of Agric. & Soil Conservation Serv., 97 F.3d

999, 1005 (8th Cir. 1996) (“We need not consider arguments the parties failed to

raise before the agency.”), but petitioners cannot seek vacatur based on a decision

they successfully urged the agency to make, see, e.g., St. Anthony Hosp. v. U.S.

Dep’t of Health & Human Servs., 309 F.3d 680, 696 (10th Cir. 2002) (party cannot

“‘induc[e] action by’” an agency and then “‘later seek[] reversal on the ground that

the requested action was error’”).

In any event, as the Board explains, petitioners are wrong that the Board’s

authority must be exercised in an adjudication, rather than a rulemaking. See Resp.


- 23 -

Br. 26. It is a basic principle of administrative law that an agency applying a

statute it administers has discretion to choose between rulemaking or adjudication.

The Board certainly could have chosen to proceed in common law fashion,

addressing applicability of the 80% trigger in an investigation. See SEC v.

Chenery Corp., 332 U.S. 194, 203 (1947) (“choice made between proceeding by

general rule or by individual, ad hoc litigation” is one of agency “discretion”). Or

it could have chosen to “rely on rulemaking to resolve … issues of general

applicability.” Lopez v. Davis, 531 U.S. 230, 243-244 (2001); Miller v. Whitehead,

527 F.3d 752, 757 (8th Cir. 2008) (same). That it chose the latter, at the urging of

petitioners, does not render the Rule unlawful.

II. THE BOARD’S SUPPOSED FAILURE TO CONSIDER THE IMPACT ON FREIGHT TRAFFIC WAS NOT ARBITRARY AND CAPRICIOUS

Petitioners’ fallback argument (at 38)—that the Board acted arbitrarily and

capriciously in failing to consider “the impact on freight traffic” in promulgating

the Rule—is also unconvincing for two basic reasons.

First, the Rule adopts an on-time performance standard only for the purpose

of determining whether the Board can or must “initiate an investigation,” and

nothing more. 49 U.S.C. § 24308(f)(1). In adopting the Rule, the Board was clear

the standard would be used for that purpose. See JA381-382 (Board’s “intent was

solely to set a threshold for accepting cases”); JA384. Because starting an


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investigation does not require changes to rail operations, the Rule does not impose

burdens on railroads that the Board unreasonably failed to consider.

Indeed, any operational concerns can be raised during an investigation. That

is, in fact, one point of investigations. The statute requires the Board to “obtain

information from all parties involved” before making recommendations. 49 U.S.C.

§ 24308(f)(1). And the Board explained that it would consider factors, such as

contract terms, route schedules, and the attribution of delays to hosts and specific

causes, during PRIIA investigations. See JA383-384; see also JA385.

Even after an investigation, absent a preference violation, the Board is

empowered only to make recommendations—recommendations that are not self-

executing. See JA378-379. The statute authorizes the Board to “identify

reasonable measures and make recommendations.” 49 U.S.C. § 24308(f)(1).

Congress thus created Section 213 in part to provide a forum for cooperative

dispute resolution between Amtrak and host railroads. See S. Rep. No. 110-67, at

26; see also supra Section I.A.3. The Board may also find that freight railroads

violated the statutory preference requirement. But the “burden” of being held to

account for violating federal law is hardly one about which petitioners can

complain. And any costs associated with enforcement of that obligation derive not

from the Rule, but from Congress’s 1973 decision to require freight railroads to

give Amtrak preference over their lines.


- 25 -

Petitioners’ burden argument thus reduces to the position that the Board

somehow erred in failing to consider the costs of investigations. See Pet. Br. 47

n.6 (complaining about “burden and reputational harm arising from a federal

investigation”). But that is a cost Congress imposed in creating PRIIA, and the

Board is bound to implement Congress’s decision. See JA22 (because

investigatory authority “is a function of … PRIIA rather than this rulemaking,”

“the proposed rule does not place any additional burdens on [regulated] entities”);

JA387 (same). Moreover, the Board concluded that the Rule would not lead to

excessive investigations, JA383, a finding petitioners do not challenge here.

Second, particular concerns with “operational impacts” are appropriately

addressed in other proceedings. In creating a preference right, Congress mandated

that, “[e]xcept in an emergency, intercity and commuter rail passenger

transportation provided by or for Amtrak has preference over freight

transportation.” 49 U.S.C. § 24308(c). Congress has also created a statutory

remedy for any operational concerns raised by that preference right:

A rail carrier affected by this subsection may apply to the Board for relief. If the Board … decides that preference for intercity and commuter rail passenger transportation materially will lessen the quality of freight transportation provided to shippers, the Board shall establish the rights of the carrier and Amtrak on reasonable terms.

Id. (emphasis added).


- 26 -

The statutory scheme thus reflects Congress’s judgments that (i) Amtrak

should generally have preference over freight traffic and that (ii) any operational

burden should be addressed through hearings under 49 U.S.C. § 24308(c).

Petitioners’ concerns about “fluidity” and “efficiency,” for example, are directly

related to a host railroad receiving preference relief and may be addressed through

that mechanism. See, e.g., Policy Statement on Implementing Intercity Passenger

Train On-Time Performance and Preference Provisions of 49 U.S.C. § 24308(c)

and (f), Docket No. EP-728, at 1-3 (STB July 28, 2016).

In short, the Board did not act unreasonably in failing to address vaguely

defined “operational” concerns that have absolutely nothing to do with the Rule—

which simply clarifies when an investigation may begin—and instead leaving

those questions to other mechanisms, such as investigations under Section 213 or

preference hearings under § 24308(c), where they are appropriately addressed.

III. THE BOARD REASONABLY ADOPTED AN ALL-STATIONS STANDARD

Finally, petitioners’ half-hearted challenge to the Board’s decision to adopt

an All-Stations standard fails. That standard—which closely reflects congressional

goals and was supported by an overwhelming number of stakeholders—was

reasonable and well-supported by the record.

To start, petitioners ignore that an All-Stations standard best accords with,

and is all but required by, Congress’s directive that Amtrak “shall … operate [its]


- 27 -

trains, to the maximum extent feasible, to all station stops within 15 minutes of the

time established in public timetables.” 49 U.S.C. § 24101(c)(4) (emphasis added).

The Board acknowledged that directive in the Rule, JA382, and Congress’s

decision to promote on-time performance measured at “all station stops,” as well as

the regulatory history supporting that approach, is powerful evidence that the

Board did not act unreasonably in applying on-time performance in that manner.

Indeed, public policy resoundingly supports an All-Stations standard.

Passengers obviously care about on-time arrival and departure at each station, not

just endpoints. The experience of most Amtrak passengers at the vast majority of

stations would be ignored if the Board used an endpoint on-time performance

standard. See, e.g., JA39-40 (“[t]hree out of every four passengers using Amtrak’s

trains depart from and arrive at stations strung between end point cities”). More

than half of the 46 states with Amtrak service have intermediate stations but no

endpoint stations in their State. JA199. By way of example, had the Board used

an End-Point standard, only two of the forty-two stations in the geographic area of

the Eighth Circuit would have been counted. See JA204. Multiple states, cities,

public interest groups, and others made these and other public policy points to the

Board in supporting an All-Stations approach.6

6 See, e.g., JA29 (Southern Rail Commission), 34 (U.S. Department of Transportation), 36 (Washington State Department of Transportation), 38-40 (National Association of Railroad Passengers), 64 (States for Passenger Rail


- 28 -

Petitioners do not address any of those points. Instead, they argue (at 44)

that the Rule is arbitrary because Amtrak’s existing schedules generally are not

designed for an All-Stations approach but the Board unreasonably speculated that

“some schedules” would be modified. JA382. That is wrong.

First, the Board’s explanation that “some schedules, particularly for long-

distance trains, may need to be modified” and its judgment that negotiations may

result in “appropriate, realistic and up-to-date modifications” in certain cases was

not unreasonable. JA382. Instead, that determination was a “predictive judgment”

entitled to deference, see Southwestern Bell Tel. Co. v. FCC, 153 F.3d 523, 547

(8th Cir. 1998) (deferring to agency’s “predictive judgment”); City of St. Louis v.

Department of Transp., 936 F.2d 1528, 1534, 1544 (8th Cir. 1991) (similar), and it

was amply supported by the record and logic.

To begin with, the record demonstrated that Amtrak and freight railroads

have agreed to amend schedules historically. Amtrak’s current schedules were

developed through an iterative negotiation process requiring agreement by both Coalition, Inc.), 76-78 (Environmental Law and Policy Center), 96 (California State Transportation Agency), 150 (Midwest Interstate Passenger Rail Commission), 152 (Virginia Rail Policy Institute), 154 (Virginia Department of Rail and Public Transportation), 189-190 (North Carolina Department of Transportation), 194-201 (Amtrak), 217 (Michigan Department of Transportation), 219 (Michigan Association of Railroad Passengers, Inc.), 223 (Oregon Department of Transportation), 224-225 (Senator Richard Durbin), 226 (Senators Roger Wicker and Cory Booker), 357 (Progressive Public Affairs, joined by thirteen mayors), 362-366 (Capitol Corridor Joint Powers Authority), 371-372 (Congressman Peter DeFazio).


- 29 -

Amtrak and the host railroads. JA197, 233-234, 324-325. Those schedules cannot

be modified unless each host railroad affected approves it. And Amtrak and host

railroads may agree to modify schedules when appropriate. For example, in early

2015, CSXT and Amtrak agreed to change 44 schedules, four of which have been

changed again since then. JA326.7 Amtrak and host railroads also make

temporary schedule changes, such as in March 2016 when Amtrak, Union Pacific,

and BNSF Railway agreed to modify the schedule for the Sunset Limited service to

accommodate track work. JA325-326; see also JA325-326, 350-355 (additional

trackwork schedule modifications).

Indeed, the Board’s judgment that some schedules would be modified when

needed was also sensible because the Rule provides an additional, and powerful,

incentive for parties to renegotiate. Before the Rule, host freight railroads had little

reason to modify existing schedules to address any operational concerns because

there was no possibility of PRIIA Section 213 investigations. Now, both Amtrak

and freight railroads have an incentive to distribute recovery time throughout a

route to avoid investigations that would result in a recommendation that they do

just that. JA364-365. A judgment that the Rule itself would create incentives to

make appropriate modifications, JA382, was thus more than justified. 7 The lengthening of schedules, however, will not necessarily result in improved on-time performance. See JA329. For that reason, it may be appropriate for the Board to consider a schedule’s reasonableness in the first instance and then recommend changes if necessary to improve performance.


- 30 -

Second, even if there is no schedule renegotiation, disputes about whether

Amtrak’s schedules include reasonable recovery time may be addressed in an

investigation. The statute acknowledges the Board’s authority to consider

schedules “[a]s part of its investigation.” 49 U.S.C. § 24308(f)(1). The Board

explained that “considerations regarding the published schedules may enter into

the investigation stage.” JA382. Petitioners themselves, in fact, have said that “the

reasonableness of Amtrak’s schedules must play a critical role in any …

investigation.” JA136. Thus, if some schedules need to be but are not modified in

the wake of the Rule, the Board is equipped to address that in an investigation.

Petitioners’ related argument (at 48) that the Board should have “gather[ed]

more information, and issue a final rule only after examining the achievability of

Amtrak’s schedules” is no more persuasive. The Board lacks the statutory

authority to set general standards for intercity passenger train schedules. See

JA383-384 (“the statute does not include generalized authority, outside a particular

investigation, for the Board to set standards for the development of schedules”).

The Board hardly can be faulted for failing to initiate an investigation into

schedules it is without the authority to conduct.

Finally, petitioners contend (at 48) that the Board unreasonably disregarded

operational problems and costs that would result if the parties did modify Amtrak’s

schedules. That argument, too, is unavailing. Operational issues, if any, arising


- 31 -

from changes to schedules should first be addressed by Amtrak and the host

railroads while renegotiating those schedules. Amtrak’s schedules “are developed

with host railroads through an iterative process of negotiation and detailed

analysis.” JA325. The Board can then review and recommend changes to

schedules during a Section 213 investigation if a train has substandard performance

and the on-time performance threshold standard is satisfied.

CONCLUSION

The petitions for review of the Rule should be denied.

Respectfully submitted,

/s/ David W. Ogden DAVID W. OGDEN

JONATHAN PAIKIN KELLY P. DUNBAR ARI HOLTZBLATT DEREK A. WOODMAN WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6000

December 6, 2016


CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this brief complies with the type-

volume limitation in the Court’s October 6, 2016 Order, the typeface requirements

of Federal Rule of Appellate Procedure 32(a)(5), and the virus-scanning

requirement of Eighth Circuit Rule of Appellate Procedure 28A(h).

1. Exclusive of the exempted portions of the brief, as provided in Federal

Rule of Appellate Procedure 32(a)(7)(B), the brief contains 6,969 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2010 in 14 point Times New Roman font.

3. This brief has been scanned for viruses and is virus-free.


December 6, 2016


CERTIFICATE OF SERVICE

I hereby certify that I filed the foregoing brief with the Clerk of the United

States Court of Appeals for the Eighth Circuit via the CM/ECF system this 6th day

of December, 2016, which automatically sends notice and a copy of the filing to all

counsel of record.



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