The opinion of the court was delivered by: James E. Boasberg United States District Judge
We all know Amtrak -- the federally chartered corporation that has provided intercity and commuter train service to Americans for more than forty years. But what is Amtrak? Is it a private entity? Or is it part of the government? While courts have previously addressed these questions in various other contexts, it is on their resolution that much of this case hinges.
Section 207 of The Passenger Railroad Investment and Improvement Act of 2008 (PRIIA) requires the Federal Railroad Administration (FRA) and Amtrak to "jointly" develop standards to evaluate the performance of Amtrak's intercity passenger trains. Consistent with this mandate, the FRA and Amtrak issued Metrics and Standards for measuring Amtrak's on-time performance and minutes of delay. In this suit, Plaintiff Association of American Railroads (AAR) -- an organization whose members include freight railroads that own tracks and facilities on and through which Amtrak's trains operate -- contends that § 207 both unconstitutionally delegates rulemaking authority to a private entity and violates its members' due-process rights. Each side has now moved for summary judgment.
The Court concludes that the statute survives both of Plaintiff's constitutional challenges. Because the Supreme Court has held that Amtrak is to be considered a governmental entity for the purpose of constitutional individual-rights claims, Plaintiff's due-process challenge, which is premised on Amtrak's status as an interested private party, cannot prevail. The non-delegation claim, however, poses a closer question. Ultimately, though, the Court need not decide whether Amtrak should be considered a governmental entity or a private party for purposes of that issue. Even if Amtrak is a private entity, the government is sufficiently involved as to render § 207's delegation constitutional. The Court, therefore, will grant Defendants' Motion for Summary Judgment and deny Plaintiff's.
By the middle of the twentieth century, the once-robust intercity passenger-train industry had fallen on hard times. Formerly the primary means of intercity travel, the railroads faced crippling competition from the burgeoning air-travel industry and the new interstate highway system. See Def.'s Mot. & Opp., Exh. 1 (Congressional Budget Office, "The Past and Future of U.S. Passenger Rail Service" (Sept. 2003)) at 5-7. In an attempt "to avert the threatened extinction of passenger trains in the United States," Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 383 (1995), Congress passed the Rail Passenger Service Act of 1970, 84 Stat. 1327, 45 U.S.C. § 501 et seq. Among other things, the Act established the National Railroad Passenger Corporation, better known as Amtrak. See id. § 401(a) (codified at 45 U.S.C. §§ 561-66) (repealed and incorporated in sections of 49 U.S.C. subtit. V, part C).
Amtrak, which was set up to function as a "private, for-profit corporation," 49 U.S.C. § 24301(a), began operation in May 1971. See Nat'l R.R. Passenger Corp. v. Atchison, Topeka and Santa Fe Ry. Corp., 470 U.S. 451, 454 (1985). Then, as now, Amtrak's passenger trains ran primarily on tracks owned by freight railroads. See Pl.'s Mot., Decl. of Thomas Dupree, Exh. H (AAR Comment on Proposed Metrics and Standards) at 2; Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 410 (1992) ("Most of Amtrak's passenger trains run over existing track systems owned and used by freight railroads."). To ensure the continued vitality of passenger rail service, accordingly, Congress obligated the freight railroads to lease their tracks and facilities to Amtrak. See 49 U.S.C. § 24308(a). Congress also provided that Amtrak's intercity passenger trains would generally take "preference over freight transportation in using a rail line, junction, or crossing." Id. § 24308(c). Consistent with these statutory mandates, the freight railroads entered into contracts with Amtrak -- commonly known as operating agreements -- that set out the rates Amtrak pays in exchange for use of the railroads' tracks. See Pl.'s Mot, Decl. of Paul LaDue, ¶ 12; Pl.'s Mot., Decl. of Virginia Beck, ¶ 13; Pl.'s Mot., Decl. of Mark Owens, ¶ 12; Pl.'s Mot., Decl. of Peggy Harris, ¶ 12; see also Dupree Decl., Exh. G (Report of the Inspector General, U.S. Dep't of Transp., "Amtrak Cascades and Coast Starlight Routes" (Sept. 23, 2010)) at 29.
Although Congress has specified that Amtrak "is not a department, agency, or instrumentality of the United States Government," 49 U.S.C. § 24301(a), the government remains heavily involved in its operations. Of the nine directors who sit on Amtrak's board, eight are directly appointed by the President, with the advice and consent of the Senate. See 49 U.S.C. § 24302. The ninth board member is selected by the other eight. Id. Amtrak is required to submit annual reports to Congress and the President, see id. §§ 24315(a)-(b), and the government owns more than 90% of Amtrak's stock. See Def.'s Mot., Exh. 2 (Nat'l R.R. Pass. Corp. and Sub., Consolidated Financial Statements for the Years Ended Sept. 30, 2011 and 2010 (Dec. 2011)) at 17-18. Because Amtrak has never managed to become self-sufficient, moreover, the corporation depends on substantial federal subsidies to continue its operations. See id. at 6; Dupree Decl., Exh. Q (Katherine Shaver, "At 40, Amtrak Struggles to Stay Up to Speed," Wash. Post (May 15, 2011)) at C1.
The statute that is the subject of this suit, The Passenger Railroad Investment and Improvement Act of 2008 (PRIIA), Pub. L. No. 11-432, is the latest of several pieces of legislation intended to improve Amtrak's financial health and the quality of its service. At issue is § 207 of that Act, which provides, in relevant part:
[T]he Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including [, inter alia,] . . . on-time performance and minutes of delay . . . .
PRIIA, § 207(a) (codified at 49 U.S.C. § 24101, note). The statute provides further details about what those Metrics and Standards should include, and it states that, "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agreements." Id. § 207(c).
In addition, § 213(a) of the PRIIA empowers the Surface Transportation Board (STB), "a quasi-independent three-member body within the Department of Transportation," Iowa, Chicago & Eastern R.R. Corp. v. Washington Cnty., Iowa, 384 F.3d 557, 558-59 (8th Cir. 2004), to initiate an investigation if Amtrak fails to meet the on-time performance standards laid out in the Metrics and Standards. See PRIIA § 213(a) (codified at 49 U.S.C. § 24308(f)). If the STB concludes that "delays or failures to achieve minimum standards . . . are attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation," as required by 49 U.S.C. § 24308(c), "the Board may award damages against the host rail carrier." Id. § 213(a).
If "appropriate," furthermore, the STB may order that those damages be remitted to Amtrak. See id.
Consistent with § 207's mandate, the FRA and Amtrak issued proposed Metrics and Standards on March 13, 2009, see Dupree Decl., Exh. B (Proposed Metrics and Standards for Intercity Passenger Rail Service (Mar. 13, 2009)), accepted comments from interested parties, see 74 Fed. Reg. 10983 (Mar. 13, 2009), and ultimately published the final version of the Metrics and Standards on May 6, 2010. See Dupree Decl., Exh. D (Final Metrics and Standards for Intercity Passenger Rail Service, Docket No. FRA-2009-0016 (May 6, 2010)). The Metrics and Standards provide that Amtrak's on-time performance is to be assessed on a route-by-route basis by reference to three separate metrics. See id. at 24-30. In general terms, these metrics address "effective speed," which is the route's distance divided by the average time it takes to traverse it, "endpoint on-time performance," which measures how often trains arrive on time at the end of the route, and "all-stations on-time performance," which measures how often trains arrive on time at each station along the route. See id. The Metrics and Standards also set limits on permissible delays, capping the delays for which a host railroad may be responsible at 900 minutes per 10,000 route miles. See id. at 27-28.
These Metrics and Standards went into effect on May 12, 2010. See id. at 1. Since then, the freight railroads have already made efforts to achieve the goals set forth therein. See LaDue Decl., ¶¶ 5-11; Beck Decl., ¶ 11; Owens Decl., ¶ 9; Harris Decl., ¶¶ 8-10. The FRA's quarterly reports have, nevertheless, consistently concluded that the Metrics and Standards are not being met on many of Amtrak's routes. See generally Dupree Decl., Exhs. M-P (FRA's February, April, July, and September 2011 Quarterly Reports); LaDue Decl., ¶ 5; Beck Decl., ¶ 8; Owens Decl., ¶ 7; Harris Decl., ¶ 7. While neither party has presented evidence that freight railroads have yet been fined as a result of these shortcomings, at least one petition has been filed by Amtrak against a railroad based on its alleged failure to meet the requirements of the Metrics and Standards. See generally Pl.'s Opp. & Reply, Decl. of Porter Wilkinson, Exh. A (Petition for Relief by Amtrak, Docket No. NOR 42134).
Plaintiff in this case, the Association of American Railroads (AAR), "is a nonprofit trade association whose members include all of the Class I freight railroads (the largest freight railroads), as well as some smaller freight railroads and Amtrak." Compl., ¶ 10. It brings this case on behalf of its Class I-member freight railroads, all of which own tracks on which Amtrak trains are operated. See id., ¶¶ 10-11. Because they are required to incorporate the Metrics and Standards into their operating agreements where "practicable" and because they could be subject to penalties if Amtrak's failure to live up to those standards is found to have been caused by their failure to prioritize Amtrak trains, AAR maintains that these railroads are directly harmed by § 207 of the PRIIA and the Metrics and Standards promulgated in accordance therewith. See id., ¶¶ 11-13. In the instant ...