The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Before the Court are the Motion  to Dismiss by the federal defendants, along with their Motion  in the alternative for summary judgment, and the Motion  to Dismiss by Union Pacific Railroad Company, which is also styled in the alternative as a motion for summary judgment. Upon consideration of the memoranda in support, in opposition, and in reply, the applicable law, and the entire record herein, and for the reasons stated below, the Motions to Dismiss [13 & 21] are GRANTED, and this case is DISMISSED.
This case involves safety regulations applicable to private railroad companies and their credentialing of locomotive engineers. The Rail Safety Improvement Act of 1988, Pub. L. No. 100-342 (codified at 49 U.S.C. § 20135), confers on the Secretary of Transportation the authority to develop a program for assessing and credentialing engineers, which the Secretary in turn delegated to the Federal Railroad Administration ("FRA"), which issued the Locomotive Engineers Rule. 56 Fed. Reg. 28228, 28254 (1991). FRA establishes certain eligibility standards for engineers, and individual railroads design and implement systems for testing, assessing, and credentialing engineers. This includes the authority to deny or revoke the certifications necessary to operate a locomotive as an engineer, subject to FRA oversight. See Fed. Defs. Motion to Dismiss, Mem. in Supp.,  at 3-6 (describing relevant regulatory environment).
In certain circumstances, railroad employees are entitled to a hearing before the railroad when an adverse certification decision has been made. Certification decisions can then be taken to the Locomotive Engineer Review Board ("LERB"), a review panel appointed by FRA. A party aggrieved by the LERB's decision may then request an administrative hearing before the FRA's presiding officer, the agency's administrative hearing officer. 49 C.F.R. § 240.407. An aggrieved party may appeal that decision to the FRA administrator. A decision by the FRA Administrator to affirm the decision of the FRA presiding officer is final agency action. See 49 C.F.R. § 240.411(e); Carpenter v. Mineta, 432 F.3d 1029, 1032 (9th Cir. 2005). Once a party has passed through this gauntlet of administrative process, judicial review may be sought in the appropriate United States Court of Appeals. 49 U.S.C. § 20114(c); 28 U.S.C. §22342(7).
In the fall of 1999 plaintiff Charles Daniels was employed by Union Pacific. He alleges that he received a "full license or Class I certificate" on June 10, 1999. 1AC ¶ 26. On September 8, 1999, Union Pacific "took away his right to use such license or Class I certificate." Id. ¶ 25. Specifically, Union Pacific "demoted or purportedly 're-classified' plaintiff Daniels to a student engineer with a Class III certificate, with no right to use the Class I license." Id. ¶ 30. From that time until early 2000, Daniels was evaluated again over the course of a series of test rides. Id. ¶¶ 41-45. His employment with Union Pacific was terminated on March 1, 2000 in a letter which asserted that "your certification as a locomotive engineer was denied due to your inability to qualify as an engineer." Id. ¶ 46.
While the parties dispute whether this is a case of a certificate being revoked or of one being denied, Daniels did take his case before the LERB, then sought review before FRA. 1AC ¶¶ 48-50. The Administrative Law Judge assigned to the matter took almost five years to issue a decision, which came down on April 19, 2006, denying Daniels' appeal. Id. ¶¶ 50-52. Plaintiffs brought this suit on May 18, 2006, claiming that Union Pacific's denial or revocation of certification deprived Daniels of due process, and that the federal defendants' -- LERB and FRA -- subsequent handling of the matter resulted in further due process deprivations. According to the federal defendants, the union appealed the Administrative Hearing Officer's decision on behalf of Daniels on May 19, 2006, Fed. Defendants' Stmt. of Material Facts [21-2] ¶ 16, and on July 31, 2006, the FRA Administrator denied the appeal, affirming the decision below. Id. ¶ 17.
Daniels is not the only plaintiff -- his union, the Brotherhood of Locomotive Engineers and Trainmen, Central Region -- is also a named plaintiff. It alleges that Union Pacific denied or revoked the certifications of other employees without following the process laid out in the federal regulations, and that LERB and FRA have acquiesced in this practice. The union purports to sue on behalf of six individual Union Pacific employees, who it alleges have had their certificates revoked without the process due them under the regulations. A few of these individuals have at least engaged the administrative review process, but none have completed its steps.
The First Amended Complaint asserts claims for declaratory and injunctive relief, as well as a money damages claim against Union Pacific styled as an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The complaint seeks restoration of Daniels' engineer certification and position as well as backpay. It also seeks various equitable relief aimed at what plaintiffs view as the defendants' non-compliance with the federal regulations governing engineer certification. Union Pacific and the federal defendants have moved to dismiss on a number of grounds.
One of the bases for dismissal cited by the federal defendants is the Court's lack of jurisdiction over the subject matter. The federal courts are courts of limited jurisdiction, having only those powers assigned to them by Congress or directly by the Constitution. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). On a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the nonmoving party is entitled to all reasonable inferences. Artis v. Greenspan, 158 F.3d 1301, 1305-06 (D.C. Cir. 1998). "The court may dismiss a complaint for lack of subject-matter jurisdiction only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support his claim which would entitle him to relief.'" Mutual Pharmaceutical Co., Inc. v. Pfizer, 307 F.Supp. 2d 88, 92 (D.D.C. 2004) (Urbina, J.) (quoting Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957))). But "[b]ecause subject-matter jurisdiction focuses on the court's power to hear the claim," the plaintiff's allegations must receive "closer scrutiny" than under a 12(b)(6) motion, and the Court may consider matters beyond the pleadings. Id. (collecting cases).
When the Complaint was filed, the administrative process was not yet complete. This failure to exhaust administrative remedies by itself would justify dismissal of all claims for lack of subject matter jurisdiction. See Peters v. Union Pacific Railroad Co., 80 F.3d 257 (8th Cir. 1996); 28 U.S.C. § 2342(7). As Peters sets forth, this is applicable to claims against Union Pacific, not just the government. The failure to exhaust is clearly fatal to all the claims the union purports to bring on behalf of individuals other than Daniels.
In some cases, the fact that Daniels appeared to exhaust his claims after he brought suit might not be fatal if he amended his complaint to reflect the fact of exhaustion. But even if the complaint in this case had been brought after exhaustion, or amended to reflect that fact, jurisdiction still would not have been appropriate in this court, at any time. The Hobbs Act, 28 U.S.C. § 2342(7), read jointly with 49 U.S.C. § 20114(c), vests exclusive jurisdiction of this case in the appropriate court of appeals. First, 49 U.S.C. § 20114(c) states that "a proceeding to review a final action of the Secretary or Transportation under this part . . . shall be brought in the appropriate court of appeals as provided in chapter 158 of title 28." The corresponding 28 U.S.C. § 2342(7) sets forth that "[t]he court of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final agency actions described in section 20114(c) of title 49." It is well established that this is the appropriate avenue ...