[00:00:00] Speaker 00: Case number 24-1385NL, James Riffin petitioner versus Surface Transportation Board and United States of America. [00:00:10] Speaker 00: Mr. Riffin for the petitioner, Mr. Riffin for the respondents, Mr. Goulding for the interviewer. [00:00:17] Speaker 04: Good morning, Mr. Riffin. [00:00:18] Speaker 04: You may begin. [00:00:19] Speaker 04: You may begin. [00:00:20] Speaker 04: You are giving guests. [00:00:21] Speaker 04: Good morning. [00:00:22] Speaker 02: I'm James Riffin. [00:00:23] Speaker 02: I'm your petitioner. [00:00:25] Speaker 02: I don't hear very well. [00:00:26] Speaker 02: So everything you've said so far, I couldn't understand anything you said. [00:00:29] Speaker 02: So if you do want to ask me a question, get my attention, and then you have to speak up loud enough so I can at least hear you. [00:00:36] Speaker 02: But anyway, as I said, I'm James Riffin. [00:00:38] Speaker 02: I'm your petitioner. [00:00:40] Speaker 02: With your court's permission, I'm going to use most of my time in rebuttal. [00:00:44] Speaker 02: I'm going to rest with all the arguments that are sitting in my briefs. [00:00:47] Speaker 04: Mr. Riffin? [00:00:49] Speaker 04: Mr. Riffin? [00:00:50] Speaker 04: You cannot engage in rebuttal on any arguments that are not discussed in the main argument, your argument here or the other side's argument. [00:00:59] Speaker 04: So there's a risk that if you don't argue anything now and the government says nothing else, you'll have nothing to discuss on rebuttal. [00:01:06] Speaker 04: So I'm going to suggest that you make your, you have a burden of proof here that you make your affirmative presentation. [00:01:11] Speaker 04: We will give you some time for rebuttal. [00:01:13] Speaker 04: Okay. [00:01:14] Speaker 02: Thank you very much, your honor. [00:01:16] Speaker 02: Your clerk told me that, by the way. [00:01:18] Speaker 02: May I begin? [00:01:19] Speaker 02: Yes. [00:01:20] Speaker 02: As I said, I'm going to basically rest on what's in my briefs. [00:01:25] Speaker 02: This proceeding presents multiple issues. [00:01:28] Speaker 02: There's a very high probability that one of those issues will repeatedly be presented to this court until this court rules on that issue. [00:01:40] Speaker 02: In railroad ventures, the 6th circuit helped that whatever assets a rail carrier has on the date that a rail carrier files an abandonment petition, an OFA offer can acquire. [00:01:57] Speaker 02: I asked this court to determine a similar bright line date. [00:02:05] Speaker 02: When an OFA offer acquires the right to file an OFA, an offer of financial assistance, upon which date a rail carrier no longer can withdraw an abandonment petition without an OFA offeror's consent, I argue the appropriate date [00:02:35] Speaker 02: is the date an OFA offeror is held to be preliminarily financially responsible, either presumptively or by STB decision. [00:02:49] Speaker 02: Determining that date in this proceeding will eliminate this issue from being raised in subsequent petitions for review, I would hope, either by me [00:03:03] Speaker 02: or by other petitioners. [00:03:07] Speaker 02: I say this because there is another proceeding before the SDB currently where what happened in this proceeding also happened [00:03:18] Speaker 02: to it. [00:03:19] Speaker 03: Let me see if I've understood you. [00:03:21] Speaker 03: You said that the board should infer a deadline. [00:03:27] Speaker 02: I didn't say infer. [00:03:29] Speaker 02: I said this court should determine. [00:03:31] Speaker 02: Under Loper, it is this court's obligation now. [00:03:35] Speaker 03: That we should infer, because there is not an actual deadline for the rail carrier to turn over the information you seek, right? [00:03:46] Speaker 02: I'm not asking [00:03:48] Speaker 02: I'm not talking about the information that a rail carrier is obligated to provide. [00:03:53] Speaker 02: That's not what I'm talking about. [00:03:55] Speaker 03: Okay. [00:03:56] Speaker 02: What I am talking about is when does an OFA offerer acquire the right to file an OFA? [00:04:09] Speaker 02: filing it doesn't mean you're going to get it. [00:04:13] Speaker 02: It doesn't mean the gourd is going to approve it, but you require the right. [00:04:18] Speaker 02: I want a great line past which a carrier can no longer abandon its withdrawal, its application for abandonment. [00:04:29] Speaker 04: Is there anything in the statute that you can point to that supports that line or is this [00:04:36] Speaker 04: of a practical argument that you're presenting us with? [00:04:40] Speaker 02: It's not in the statute. [00:04:43] Speaker 02: It's not in the regulations. [00:04:45] Speaker 02: It's never been before any court. [00:04:47] Speaker 02: It's never been decided by the board. [00:04:51] Speaker 02: In 2017. [00:04:51] Speaker 04: So on what basis do you suggest that we draw that line? [00:04:58] Speaker 04: On what date? [00:04:59] Speaker 04: On what basis? [00:05:00] Speaker 04: On what legal ground should we draw the line you propose? [00:05:04] Speaker 02: There needs to be a point in time at which an OFA's rights exist. [00:05:13] Speaker 02: Now, as it turns out, Intervener actually suggested such a date in their issue. [00:05:23] Speaker 02: I'm going to read what their issue says and I'm going to change one word in it. [00:05:27] Speaker 02: This is what the intervener suggested. [00:05:31] Speaker 02: May the board permit a rail carrier to terminate abandonment proceeding that the rail carrier has initiated after. [00:05:42] Speaker 02: He said before, I say after, the board takes any action that binds the rail carrier. [00:05:52] Speaker 02: That's what the innovator suggested. [00:05:55] Speaker 02: I'm suggesting the same thing. [00:05:57] Speaker 02: There needs to be a line, and that line is determined by when is the rail carrier bound to do something? [00:06:06] Speaker 02: When? [00:06:07] Speaker 02: Do you have a question? [00:06:10] Speaker 03: I do. [00:06:12] Speaker 03: In your filing to the board, [00:06:16] Speaker 03: You identified or you said that Norfolk's filing had false statements about the real estate. [00:06:24] Speaker 03: Yes it did. [00:06:25] Speaker 03: And there you said voiding the notice would be the appropriate remedy. [00:06:33] Speaker 02: I said it would be an appropriate remedy if it was material and it's that word material is what's critical. [00:06:43] Speaker 04: You identified two [00:06:45] Speaker 04: factual misstatements that you described as material. [00:06:49] Speaker 04: I will agree with you. [00:06:51] Speaker 02: I will also point out that I believe one of the ones that I said was who owns the real estate under the line. [00:07:00] Speaker 02: This is another distinction. [00:07:01] Speaker 03: But let me just stick with that point for a moment. [00:07:05] Speaker 03: It seems to me you've already acknowledged that the board, under its own regulations, [00:07:14] Speaker 03: appropriately recognized that that notice was void. [00:07:22] Speaker 02: I hope I didn't imply that in the slightest because I didn't intend to. [00:07:26] Speaker 02: No, I do not think the board did not render a decision, ultimately in this case, [00:07:37] Speaker 02: This decision doesn't apply with this administrative procedure act since there's no basis for the decision. [00:07:43] Speaker 04: Let me ask you a question. [00:07:45] Speaker 04: Call it a hypothetical question here. [00:07:47] Speaker 04: After you filed your letter identifying two, in your view, material misstatements that in your filing with the board said, [00:08:00] Speaker 04: under the regulation would render that filing void ab initio. [00:08:05] Speaker 04: If the board had said, Mr. Riffin, you're right, we declare that notice of abandonment void. [00:08:16] Speaker 04: Would that have been a proper lawful thing for the board to do? [00:08:22] Speaker 04: It would have been and I wouldn't be here today. [00:08:25] Speaker 04: But that's not what the board did. [00:08:27] Speaker 04: I understand. [00:08:27] Speaker 04: I understand. [00:08:28] Speaker 04: That's a separate argument. [00:08:29] Speaker 04: I understand that point. [00:08:30] Speaker 04: But that would have been an act satisfactory outcome that would have addressed your concerns with that filing and the initiation of the process. [00:08:43] Speaker 02: Had the board taken that approach, it would have been an appropriate approach. [00:08:49] Speaker 02: And I wouldn't be here contesting what they did because they would have said, we are going to void it because it contains false statements. [00:08:57] Speaker 02: In my original filing, I did point out all of that. [00:09:01] Speaker 02: I also said, in this particular case, while these are in fact false statements and they are somewhat material, [00:09:14] Speaker 02: They do not necessarily rise to the level that this whole proceeding needs to be voided. [00:09:24] Speaker 02: From day one, it has been my position all along. [00:09:30] Speaker 02: Norfolk Southern put in their abandonment exemption for false statements. [00:09:40] Speaker 02: I told them I called up I called up council for no folks Southern. [00:09:44] Speaker 04: I said you're I think we're familiar with the record. [00:09:47] Speaker 04: You contacted them and then you filed with the board alerting it to this problem. [00:09:53] Speaker 04: So I think we're familiar with that. [00:09:55] Speaker 04: I just wanted to let you know you're running low on time. [00:09:58] Speaker 04: If you want to wrap up, we will give you a couple minutes for rebuttal. [00:10:04] Speaker 02: what I wanted to say I've already said, which is I'm looking for a bright line at which point in time a carrier can no longer withdraw their abandonment exemption petition. [00:10:18] Speaker 02: And the underlying reason for that is there needs to be a point at which a real carrier can no longer terminate a proceeding without consent. [00:10:31] Speaker 02: The underlying reason for that is [00:10:33] Speaker 02: what happens, what happened in this case, and what is happening in this other case I've made reference to, which will probably wind up in this court. [00:10:42] Speaker 02: If you don't make that decision, you will get it presented to you again. [00:10:46] Speaker 02: An offeror makes an offer, begins the process. [00:10:57] Speaker 02: The carrier doesn't like what it sees. [00:11:00] Speaker 02: The carrier knows, oh, I might actually have to convey this line to this person under terms that I don't particularly like. [00:11:08] Speaker 02: Therefore, in order to prevent, to make it so that the carrier isn't obligated to do something the carrier doesn't really want to do, they just withdraw it. [00:11:19] Speaker 04: Now, the ultimate. [00:11:20] Speaker 04: You are now over your time. [00:11:22] Speaker 04: May I take 30 more seconds? [00:11:24] Speaker 04: I'll give you the 30 seconds. [00:11:25] Speaker 02: Thank you very much, your honor, because this is the whole reason [00:11:30] Speaker 02: Why this is important. [00:11:32] Speaker 02: It's what the Sixth Circuit said. [00:11:35] Speaker 02: When do your rights acquire with regard to what it is you have the right to acquire? [00:11:43] Speaker 02: It is on the day a petition is filed. [00:11:47] Speaker 02: Anything that happens after that date, you still get it. [00:11:51] Speaker 02: If the carrier disposes of it, if someone else takes something, their carrier is responsible. [00:11:57] Speaker 02: I made mention of that in a case in Mississippi. [00:12:00] Speaker 04: I think you're at your 30 seconds. [00:12:01] Speaker 04: So we'll let you follow up on rebuttal. [00:12:04] Speaker 04: Excuse me, your time is up. [00:12:05] Speaker 04: So maybe you sit down. [00:12:07] Speaker 04: We're going to hear from the other parties now, and then we'll give you a couple of minutes for rebuttal. [00:12:11] Speaker 02: Thank you very much, Your Honor. [00:12:22] Speaker 05: Good morning, Your Honors. [00:12:23] Speaker 05: May it please the court? [00:12:24] Speaker 05: Jetta Sandin on behalf of respondents. [00:12:27] Speaker 05: Your Honors, there is a point in time when a railroad is no longer allowed to withdraw its abandonment request. [00:12:34] Speaker 05: That point in time is set by the statute. [00:12:37] Speaker 05: 49. [00:12:38] Speaker 05: Can you hang on one second? [00:12:39] Speaker 05: Yes. [00:12:39] Speaker 04: I think Mr. Riffin, are you having trouble hearing? [00:12:42] Speaker 04: Is there anything that can be done to help him hear? [00:12:44] Speaker 04: I apologize. [00:12:48] Speaker 04: No worries. [00:12:48] Speaker 04: I want to make sure he gets to hear her. [00:12:50] Speaker 05: Agree. [00:12:55] Speaker 07: Thank you very much. [00:13:08] Speaker 07: Thank you. [00:13:10] Speaker 04: I want to just say your name again, just so we can make sure you can hear. [00:13:13] Speaker 04: I'm sorry to have you go through this. [00:13:14] Speaker 05: No worries. [00:13:15] Speaker 05: Jetta Sanden on behalf of respondents. [00:13:17] Speaker 05: Did you hear that? [00:13:18] Speaker 05: Fantastic. [00:13:20] Speaker 05: Please proceed. [00:13:22] Speaker 05: The statute does set a point in time in which a railroad can no longer withdraw its abandonment notice. [00:13:29] Speaker 05: 49 USC. [00:13:31] Speaker 05: Section 10904 establishes that once the board sets terms and conditions for sale of a line, it is within the offeror's right only to withdraw that. [00:13:45] Speaker 05: The railroad at that point in time is locked in. [00:13:47] Speaker 05: If the offeror wants to accept the terms and conditions that the board sets, the offeror has the right to purchase the line. [00:13:54] Speaker 05: And this makes sense in terms of the statutory scheme. [00:13:58] Speaker 05: The offer of a financial assistance program was established by Congress to preserve rail service, not to force the sale of a line. [00:14:10] Speaker 05: The entire point was if there is a line that a railroad wishes to abandon to shed to remove from the federal rail network, God bless you, that may still have use. [00:14:21] Speaker 05: A third party is allowed to come in through the OFA process and seek to purchase the line. [00:14:26] Speaker 01: Statutory purpose seems to be just to keep rail lines in service as much as possible. [00:14:33] Speaker 01: Correct, Your Honor. [00:14:34] Speaker 01: indifferent whether that's done from the old carrier continuing to operate or through a forced or voluntary sale? [00:14:44] Speaker 05: I agree with you, Your Honor. [00:14:46] Speaker 05: It is definitely the purpose which has been decided by this court and other appellate courts to preserve rail service. [00:14:53] Speaker 05: And when a rail carrier withdraws its abandonment request, [00:14:58] Speaker 05: The line remains within the federal rail network. [00:15:01] Speaker 05: That rail carrier keeps its common carrier obligations. [00:15:05] Speaker 05: Exactly. [00:15:08] Speaker 05: Here the board was reasonable to allow Norfolk Southern to withdraw its own request for abandonment authority to correct errors in its filing. [00:15:18] Speaker 05: Errors that Mr. Riffin himself identified. [00:15:20] Speaker 05: In fact, [00:15:21] Speaker 05: referred to them as false and misleading, one of which the statement that MTA operates passenger rail on the line. [00:15:30] Speaker 05: Mr. Riffin said was sufficient for the board to deem the notice void. [00:15:36] Speaker 05: He did suggest that the board at a minimum order Norfolk Southern to correct the errors in the notice of exemption. [00:15:44] Speaker 04: If the board concluded this case or another case that a notice of abandonment, notice of exemption, I guess, it works in my head as notice of abandonment, was void for falses on its own or otherwise, would the board then dismiss? [00:16:06] Speaker 05: It would, Your Honor. [00:16:07] Speaker 05: It would summarily reject the notice and dismiss the proceeding. [00:16:12] Speaker 05: And the board takes very seriously allegations of false and misleading statements of filings before the board. [00:16:19] Speaker 05: Had we continued down this process, the board would have investigated and potentially, if found to be false and misleading, the notice would have been void of an issue. [00:16:30] Speaker 05: And the board, by its own regulations, is required to summarily reject that notice and end the proceeding. [00:16:35] Speaker 04: It's a motion, I guess, you just dismissed the motion. [00:16:38] Speaker 04: Correct. [00:16:40] Speaker 03: I'm interested in the board's practice of deciding motions by signed stamp. [00:16:48] Speaker 03: Yes, Your Honor. [00:16:49] Speaker 03: You say it's obvious that the termination order adopted the simple and straightforward reasons from Norfolk's motion. [00:16:56] Speaker 03: But you don't urge us to decide the case on that ground. [00:17:04] Speaker 03: Is there any reason the board would not adopt the full reasoning of Norfolk's motion as its decision? [00:17:10] Speaker 05: No, Your Honor. [00:17:12] Speaker 05: And when the board doesn't agree with the reasoning and rationale established in a request, the board has the ability to still grandstand it, but note the disagreement, or we have a process through which we can issue [00:17:26] Speaker 05: The director of the Office of Chief Counsel has the right to issue, when it's more routine matters, short decisions. [00:17:35] Speaker 03: And if it was a more complicated matter, it would go to the entire board for... So is there any guidance or anything written that explains the board's practice of what kinds of matters the board addresses in this way and or precedent showing that that practice has been sustained? [00:17:55] Speaker 05: To the best of my knowledge, Your Honor, this is the first time that a grant stamp has been challenged. [00:18:02] Speaker 05: The board's practice is to use grant stamps in routine matters. [00:18:09] Speaker 05: Here, the board has used grant stamps in the past to allow a railroad to withdraw. [00:18:16] Speaker 04: Has the board ever said that when we do this grant stamp, [00:18:25] Speaker 04: In doing so, we adopt every jot and tittle of the documents stamped as our own words, our own decision. [00:18:36] Speaker 05: To the best of my knowledge, Your Honor, the board has not expressly stated that. [00:18:40] Speaker 05: That has just been the board's practice. [00:18:42] Speaker 04: I mean, the board's practice might be to stamp documents and file them. [00:18:46] Speaker 04: Correct. [00:18:46] Speaker 04: I'm trying to understand a basis for a court to conclude that the board thereby says, [00:18:57] Speaker 04: what he said or what she said. [00:18:58] Speaker 04: That's us speaking. [00:19:00] Speaker 05: Understood, Your Honor. [00:19:02] Speaker 05: The board does have a policy statement regarding its grant stamp usage. [00:19:06] Speaker 05: It talks about the use of the grant stamp in routine, straightforward matters. [00:19:13] Speaker 03: Is that something publicly available that we can find on the web, or will you send it to us? [00:19:19] Speaker 05: It is both available on the website, Your Honor, and something I would be happy to send. [00:19:24] Speaker 05: We would be happy to submit to the court. [00:19:27] Speaker 04: Does it say anywhere in there? [00:19:29] Speaker 04: Maybe it's routine things we don't need to explain, or that means that we have adopted the underlying reasoning of the document. [00:19:41] Speaker 05: It talks about it being routine. [00:19:43] Speaker 05: It's not probably as satisfying as the court might like in terms of saying. [00:19:46] Speaker 04: It's not as satisfying as we don't normally impute. [00:19:50] Speaker 04: decisions, decisional rationales to agencies that they haven't expressed. [00:19:55] Speaker 04: Now, if they had a document somewhere that said, when you see us use stamp, that means that filing becomes our own words, our own rationale for action. [00:20:06] Speaker 04: If they haven't said that, then it's a little difficult for a court to say, we know what the board meant. [00:20:18] Speaker 04: I have no idea. [00:20:21] Speaker 04: Um, it sounds like this policy statement might not cast further light on that either as opposed to, I mean, the one word is sad and that is granted. [00:20:31] Speaker 04: This thing's dismissed. [00:20:33] Speaker 05: Um, uh, your honor, uh, is it. [00:20:39] Speaker 04: It's a Channery role. [00:20:42] Speaker 05: The board's practice has been to grant stamp routine matters in which there is no sort of controversy. [00:20:54] Speaker 05: Here, though, to the extent the board. [00:20:56] Speaker 04: So this is not so much a critique of the practices. [00:20:59] Speaker 04: What we do then, if we're looking for an explanation by the board, [00:21:05] Speaker 04: Um, of its decision and it may well be there's categories of things that it thinks no explanation needed. [00:21:14] Speaker 04: Um, cause they aren't typically challenged. [00:21:17] Speaker 04: Um, as you said, this is the first instance, at least for this category of documents. [00:21:22] Speaker 04: Um, but it sounds like. [00:21:27] Speaker 04: Yeah, what we can tell the board side is that this filing needs to be dismissed. [00:21:32] Speaker 05: I'm so sorry, Your Honor. [00:21:33] Speaker 05: I notice I am over my time. [00:21:36] Speaker 04: Is it fair at least to say they said this abandonment proceeding needs to be or appropriately is dismissed? [00:21:52] Speaker 05: Yes, Your Honor. [00:21:53] Speaker 04: Um, and to the extent of dangerous adopt everything that every says in every filing. [00:21:59] Speaker 05: Absolutely. [00:21:59] Speaker 05: Your honor. [00:22:00] Speaker 05: And, um, and that is why the board. [00:22:04] Speaker 05: At times, it exercises its discretion not to use the grant stamp. [00:22:09] Speaker 05: And we'll use what we call a director's order instead to grant a request. [00:22:15] Speaker 05: But to the extent that this court has concern over the rationale explained in the grant stamp or in Norfolk Southern's request to withdraw, the board did fully examine all of the reasons and all the arguments offered by Mr. Riffin in its April 14 decision. [00:22:34] Speaker 03: And if we think we have jurisdiction to consider the board's December order and not the second, then as the board treated it as a motion for reopening or reconsideration. [00:22:52] Speaker 03: But if we disagree with that, then we can't really consider the reasoning from April. [00:22:58] Speaker 03: Again, under January, it's not the reason for the decision under review. [00:23:03] Speaker 05: Correct. [00:23:04] Speaker 05: But this court has, in such cases like Salem versus NLRB, Salem Hospital, has considered agencies' deviation from its rationale and considered due process concerns cured by the agency's reconsideration of its prior decisions. [00:23:29] Speaker 04: So if we view [00:23:33] Speaker 04: the filing that the board called a reconsideration and that he called a motion for a stay. [00:23:39] Speaker 04: If we view it as a motion for a stay, so his first petition [00:23:47] Speaker 04: We have jurisdiction over that. [00:23:48] Speaker 04: We can go forward and decide that. [00:23:50] Speaker 04: Could we still look at what the board said in its decision on the motion, however, characterize to justify the first decision? [00:24:03] Speaker 04: Or does that mean it's off limits? [00:24:07] Speaker 05: Well, this court has looked at the rationale that in Salem Hospital versus NLRB, that was articulated by the agency in its decision reconsidering the request. [00:24:22] Speaker 05: And even if the court were to consider [00:24:28] Speaker 05: it a petition to stay and not a request for reopening. [00:24:33] Speaker 05: The board has the authority under 49 USC 1322 to reconsider any of its decisions. [00:24:42] Speaker 04: And here... But we don't have the authority to review it if it doesn't substantively change the initial decision. [00:24:51] Speaker 05: Correct, Your Honor. [00:24:52] Speaker 04: Is it weird that we can adopt the reason, or we can get knuckled up as you consider the reasoning that we've said we can't review? [00:25:03] Speaker 05: You're correct, Your Honor, in that if this is a decision on reconsideration that does not ultimately change the underlying decision, that it is not reviewable under the Brotherhood of Locomotives decision. [00:25:20] Speaker 05: This court has also recognized that in situations in which the agency's rationale is predetermined, where it is clear to this court that remanding would be a futile exercise, such as this court did in KPMG versus the SEC, the court has declined to remand the agency because they know what the agency would say, as is true here. [00:25:50] Speaker 03: I just pulled up the policy statement and it says that. [00:25:56] Speaker 03: The director uses the grant stamp procedure in routine unopposed. [00:26:01] Speaker 03: Matters and in your view, a routine unopposed matter. [00:26:06] Speaker 05: It is a routine matter. [00:26:08] Speaker 05: Not unopposed. [00:26:09] Speaker 05: It became unopposed. [00:26:10] Speaker 05: Prior to the board issuing that decision, Mr. Riffin did argue before the board in his November 25th comments that this notice contained false and misleading statements and requested that the board at a minimum direct Norfolk Southern to amend its notice of exemption, but also commented that some of the statements that were false and misleading were sufficient enough to [00:26:36] Speaker 05: warrant this notice being deemed void ab initio, which would have required the board to have summarily rejected the notice. [00:26:46] Speaker 05: So rather than, because the board didn't have the opportunity to go ahead and fully vet whether or not the notice was void ab initio, Norfolk Southern came forward and reasonably requested to withdraw its notice so that it could correct the errors that Mr. Riffin himself was complaining about. [00:27:05] Speaker 01: The regulation seems very aggressive. [00:27:09] Speaker 01: It says, shall dismiss, and it uses language that we would think of as jurisdictional, void ab initio. [00:27:20] Speaker 01: Do you take the regulation to give the agency discretion not to dismiss a statement, a notice with false and misleading statements? [00:27:36] Speaker 05: There is no discretion, Your Honor. [00:27:37] Speaker 01: Thank you. [00:27:42] Speaker 03: subject to a materiality analysis, presumably if there's a grammatical mistake. [00:27:48] Speaker 05: Correct, Your Honor. [00:27:49] Speaker 05: The board has, when analyzing whether or not a false misleading statement within a notice renders the notice void of an issue, they have definitely looked at materiality. [00:28:01] Speaker 05: And Mr. Riffin here says that MTA's statement about operating passenger rail on the line was indeed material. [00:28:09] Speaker 04: So given Mr. Riffin's filing, identifying at least two false statements that he characterized as material, if the board agreed, I mean, well, one, I think I heard you say that's on grounds on which the board would have viewed the motion as unopposed. [00:28:33] Speaker 04: He said it was appropriate for the board [00:28:36] Speaker 04: render a valid admin issue which would require a stamp of dismissed. [00:28:41] Speaker 05: Yes, your honor. [00:28:42] Speaker ?: Yep. [00:28:43] Speaker 03: Just one question about Mr. Riffin's argument about the preliminary financial responsibility regulation. [00:28:51] Speaker 03: You argue that doesn't create any new rights for offers. [00:28:56] Speaker 03: But the statute and the regulations use language that's mandatory. [00:29:01] Speaker 03: The rail carrier, quote, shall provide promptly, close quote, the certain information to the potential buyer. [00:29:10] Speaker 03: And then the regulation says, [00:29:12] Speaker 03: An applicant must provide promptly upon request the information. [00:29:17] Speaker 03: So if the application had not been withdrawn, then there would have been an entitlement. [00:29:33] Speaker 05: Correct, Your Honor. [00:29:33] Speaker 05: And that's akin to a discovery obligation. [00:29:36] Speaker 05: It doesn't rise to a level of a constitutionally protected property right. [00:29:41] Speaker 05: And just as a defendant has the right to answers to its discovery request during the pendency of a litigation, [00:29:49] Speaker 05: That's similar here. [00:29:50] Speaker 05: If the abandonment proceeding had continued, Mr. Riffin would have had the right to information about the valuation of the line from the railroad. [00:30:00] Speaker 05: But just as a defendant no longer has a right to a response to a discovery request, if a litigation is dismissed, any potential offeror no longer has the right to valuation information from the railroad if the abandonment proceeding has been dismissed. [00:30:17] Speaker 04: Has the board characterized that information request process as a discovery type procedure? [00:30:23] Speaker 05: I'm unaware of where the board has actually said those words, but it is an information request. [00:30:30] Speaker 05: With your offer, your expression of intent to file an offer of financial assistance, the potential offeror submits an information request. [00:30:40] Speaker 05: It is called an information request. [00:30:43] Speaker 04: All right. [00:30:44] Speaker 04: Thank you very much. [00:30:44] Speaker 04: Council and thank you for accommodating our technical issues at the beginning. [00:30:48] Speaker 05: Thank you very much for your time. [00:30:50] Speaker 05: Your honors. [00:30:53] Speaker 04: Mr. Glovin on behalf of the interveners. [00:31:23] Speaker 06: Good morning, Your Honors, and may it please the court, Grant Glovin on behalf of intervener Maryland Transit Administration. [00:31:30] Speaker 06: Mr. Riffin's petitions for review must be dismissed because Mr. Riffin lacks standing for three reasons. [00:31:35] Speaker 06: First, Circuit Rule 28A7 requires dismissal because Mr. Riffin failed to develop an argument for standing beyond noting that he was a party to the STB proceeding in his opening brief. [00:31:47] Speaker 06: Second, Mr. Griffin could not have established standing if he tried because he did not suffer or addressable. [00:31:53] Speaker 04: Prior to our amendment, we shouldn't apply in this case. [00:31:58] Speaker 04: That people needed to address standing unless. [00:32:02] Speaker 04: Was the obvious to them, he obviously thinks it's obvious. [00:32:09] Speaker 04: Yes, Your Honor. [00:32:10] Speaker 04: I'm not sure on what basis the local rule would. [00:32:13] Speaker 04: And that doesn't, local rule doesn't define standing, right? [00:32:18] Speaker 04: It just shows that he didn't make an argument. [00:32:22] Speaker 06: Yes, Your Honor. [00:32:22] Speaker 06: There is the exception for a reasonable but mistaken belief standing was parent. [00:32:27] Speaker 06: However, that any belief that Mr. Riffin had here that standing was established would not have been reasonable. [00:32:34] Speaker 06: And that's because he explained, he said repeatedly [00:32:38] Speaker 06: that when he filed his, what he styled his petition for stay below, it was for Norfolk Southern's benefit, not for his own benefit, that he would not receive any benefit. [00:32:47] Speaker 06: It was Norfolk Southern who would be subject to the obligations of being a common carrier on the line. [00:32:54] Speaker 03: But what about his first, the petition that he wants us to consider? [00:33:00] Speaker 06: He certainly wants to acquire the line. [00:33:07] Speaker 06: And so there's no doubt that if there was something that directly interfered with his ability to acquire the line, then that would give him standing. [00:33:17] Speaker 04: Well, his argument here is that the law requires a cutoff date [00:33:28] Speaker 04: for withdrawing a notice of abandonment. [00:33:33] Speaker 04: Had that withdrawal of notice of abandonment not occurred here, he would have been able to go forward with his, I mean, he'd already submitted his information requests. [00:33:44] Speaker 04: He would have gotten that information and the proceeding would have gone forward. [00:33:48] Speaker 04: Is that correct? [00:33:50] Speaker 06: That's correct. [00:33:52] Speaker 04: Okay. [00:33:53] Speaker 04: He says, I filed my thing, I got my presumptive status, I was entitled to get information, and I was entitled to at least compete for, apply for, negotiate to obtain real estate. [00:34:15] Speaker 04: How does that not [00:34:17] Speaker 04: either on informational grounds or a claim to compete for desired real estate that was satched away by the board's order, in his view. [00:34:27] Speaker 04: How's that not a sufficient injury for standing? [00:34:33] Speaker 06: Your Honor, I'd identify a couple problems that would make that an insufficient injury. [00:34:37] Speaker 06: The first is that Mr. Riffin knew that Norfolk Southern intended to refile, that it was going away to correct the problems that had arisen, in particular with regards to real estate ownership. [00:34:49] Speaker 06: And it had said at the appendix page 59, I believe, that [00:34:57] Speaker 06: It was intended to dismiss and re-file its notice of exception. [00:35:03] Speaker 04: So Mr. Riffin knew that there was- I'm still, I mean, I take it your argument is he might have standing again later to get these things, but I'm not aware of case law that says the fact that you might have standing in another proceeding doesn't mean you didn't have standing in this proceeding where you sought information that statute and regulation required to be disclosed to you. [00:35:28] Speaker 04: and you seek to compete to purchase real estate that you desire. [00:35:33] Speaker 04: It doesn't go away because I might get to do this again next week, does it? [00:35:40] Speaker 04: Or do you have a case that suggests that? [00:35:42] Speaker 06: Not in this exact context. [00:35:44] Speaker 06: I think I would characterize his injury slightly differently. [00:35:47] Speaker 06: And that's because I don't think the informational injury on itself is more than a procedural injury here to where his concrete interest was to acquire the line. [00:35:57] Speaker 06: The information is guaranteed under the statute. [00:36:01] Speaker 04: He wanted to obtain information that was about a piece of real estate he's interested in obtaining. [00:36:08] Speaker 04: That's a concrete interest. [00:36:13] Speaker 06: But the information could not be granted to him unless he was in the process of preparing an offer of financial assistance. [00:36:21] Speaker 04: I thought you agreed with me that had the board not withdrawn [00:36:27] Speaker 04: its notice and had the board not granted Norfolk Southern's motion to withdraw its abandonment notice, then he would have been entitled to that information. [00:36:40] Speaker 04: Yes. [00:36:41] Speaker 04: And he says, so he would have been entitled to that and it's part of him purchasing real estate. [00:36:49] Speaker 04: And so, and he says the board engaged in legal error in doing that. [00:36:54] Speaker 04: And for purposes of analyzing standing, we assume. [00:36:57] Speaker 04: The court was that he's right about the law so that he had a right to get this information. [00:37:04] Speaker 04: And to go forward with this process to obtain real estate. [00:37:11] Speaker 04: That was snatched away from him. [00:37:13] Speaker 04: Sounds like injury to me. [00:37:16] Speaker 04: It's not information. [00:37:19] Speaker 04: void. [00:37:20] Speaker 04: I'm not sure that always matters anyhow. [00:37:24] Speaker 04: Freedom of Information Act plaintiffs have standing all the time without having to have any reason for wanting it other than I want it. [00:37:32] Speaker 06: The distinction with the Freedom of Information Act, to take that last bit first, is that Freedom of Information Act, this court has characterized it as a [00:37:44] Speaker 06: as a statute that grants rights in the general public, that they're the harm Congress sought to prevent, was a lack of information itself. [00:37:52] Speaker 06: That's EPIC, the Department of Commerce, 928, F3, 95. [00:37:56] Speaker 06: Whereas in the offer of financial assistance statute, the information is provided to financial offerors. [00:38:01] Speaker 06: There has to be an ongoing process in which a financial offer is being prepared, and Mr. Riffin couldn't [00:38:09] Speaker 06: this then connects to the other problems of Mr. Riven's standing is he could not have gotten through that process because he would not be able to show a need for shipping on the line. [00:38:19] Speaker 03: And so when he filed, I mean, again, as Judge Millett said, we assume that the plaintiff will prevail on their claim when we assess standing and when he filed, none of those things had been had been [00:38:35] Speaker 03: was submitted so that you can't say that he should have known before he filed that the door would close the way it did. [00:38:42] Speaker 03: And I guess my question for you is, do you read the statute and or the board's regulations to at any point in any circumstance create an entitlement for a prospective buyer to receive information? [00:38:59] Speaker 06: Yes, as long as they are preliminary financially responsible and the process is ongoing, there is an entitlement. [00:39:12] Speaker 03: So is your argument really a mootness argument? [00:39:14] Speaker 03: Because he didn't know the process wouldn't be ongoing when he filed. [00:39:20] Speaker 03: And certainly, if we're looking at that period, it just looks like we look at the standing as of the time of filing. [00:39:27] Speaker 06: Given the unusual posture in this case where Mr. Riffin knew that Norfolk Southern was intending to refile, there was no reason to think Norfolk Southern was not going to refile as it had stated its intent to do. [00:39:41] Speaker 06: I would say it is a standing problem, but I think it also does raise mootness concerns given the developments that Norfolk Southern actually did refile. [00:39:50] Speaker 06: Mr. Griffin did participate in that proceeding and sought to, sought to file a financial offer in that proceeding as well, in which he would be entitled to the same information. [00:40:02] Speaker 04: So you're back to your standing argument that if you might have standing in another dispute later, you don't have standing in this dispute. [00:40:08] Speaker 04: Not as a general rule. [00:40:09] Speaker 04: I think it is. [00:40:11] Speaker 04: We write general rules, that's what we do. [00:40:14] Speaker 04: So, especially in something like standing. [00:40:15] Speaker 04: We don't have a specific one. [00:40:18] Speaker 04: Let me try it this way. [00:40:19] Speaker 04: Let's imagine this is hypothetical. [00:40:22] Speaker 04: Board didn't do it here. [00:40:23] Speaker 04: I'm not suggesting the board would do it. [00:40:25] Speaker 04: But if a new bad board came in and he's filed exactly what he's filed here and the board says, [00:40:34] Speaker 04: You should get this information because you are preliminarily financially responsible, but we don't like you. [00:40:43] Speaker 04: We're yanking this notice of exemption. [00:40:46] Speaker 04: Come back another time if they refile. [00:40:51] Speaker 04: Do you have standing to appeal that decision? [00:40:53] Speaker 04: Yes, Your Honor. [00:40:54] Speaker 04: Because it would be an unlawful decision. [00:40:56] Speaker 04: It would be unlawful for the board to behave that way. [00:41:04] Speaker 06: With the caveat that there may be some distinction for a litigant who's treated so arbitrarily in a way that it signals out and potentially raises equal protection problems, honestly. [00:41:18] Speaker 04: The stronger the case on the merits, the more likely you are to have standing? [00:41:22] Speaker 06: My point with that caveat was more of a qualitatively different kind of case, that it's not about the board. [00:41:27] Speaker 04: I've asked you a question because it helps me to try to understand your argument here. [00:41:33] Speaker 04: And your answers, I understood it, was he would have standing to challenge that. [00:41:39] Speaker 06: He would have standing because the key distinction between the hypothetical you raised in this case is the board in your hypothetical said, come back if the rail carrier refiles. [00:41:50] Speaker 06: Whereas here, the rail carrier said, we're going to refile. [00:41:55] Speaker 06: They didn't invite Mr. Irvin to come back then, but the board's procedures do. [00:42:01] Speaker 06: And the second distinction is that there wasn't the same problems in your hypothetical line with the- Sorry, so you are definitely absolutely wedded to this. [00:42:15] Speaker 04: If you'll have another chance another time, you don't have standing now. [00:42:21] Speaker 06: In this particular case, because that other chance was so certain to occur. [00:42:26] Speaker 04: And then where did they say we definitely absolutely for sure are going to file again? [00:42:32] Speaker 04: Because that seems to be a clincher for your standing argument here. [00:42:36] Speaker 06: That would have been appendix page 59. [00:42:38] Speaker 06: That's in its reply to Riffin's petition for stay in which it says this is the board should allow us to dismiss and refile. [00:42:50] Speaker 04: Wait, wait, that was after the board acted? [00:42:54] Speaker 04: He said that's a reply to a stay. [00:42:56] Speaker 04: It's certainly not in their motion to withdraw. [00:43:00] Speaker 04: That just says do it without prejudice, which people do when they might want to refile, but maybe not. [00:43:05] Speaker 06: Yes. [00:43:05] Speaker 06: They did not make it clear in their motion to withdraw that truth. [00:43:08] Speaker 06: However, it is in the record. [00:43:09] Speaker 04: And yet the board acted. [00:43:12] Speaker 04: And you want to say the board didn't injure him if he's right about the law because of something that was said in a reply opposing a stay motion or an opposition to a stay motion? [00:43:26] Speaker 04: And you want to say that it's a standing, not mootness? [00:43:30] Speaker 06: I would say it can go to mootness as well. [00:43:33] Speaker 04: I thought you told Judge Pillard it was a standing argument, right? [00:43:40] Speaker 06: Excuse me if I was unclear. [00:43:42] Speaker 06: I think it can sound in mootness as well. [00:43:44] Speaker 06: I do think there is a standing issue, but I think the actual fact of Norfolk sentence refiling as well can be taken into account when considering mootness. [00:43:52] Speaker 04: So I'm still interested in your standing approach here. [00:43:56] Speaker 04: And so you said, so if I change my hypothetical to we're yanking this, we don't like you. [00:44:06] Speaker 04: We don't like women filing a sentence. [00:44:10] Speaker 04: You don't like men filing these things, whatever. [00:44:12] Speaker 04: Very bad board decision. [00:44:14] Speaker 04: And they said, we think you'll have a chance later. [00:44:18] Speaker 04: Looks like you'll probably have a chance to do this again. [00:44:20] Speaker 04: See you later. [00:44:24] Speaker 04: Then he can't challenge that board decision because they said, we think you'll get a chance to do this again later. [00:44:32] Speaker 06: He can challenge it. [00:44:37] Speaker 06: He has standing for at least two reasons. [00:44:39] Speaker 06: And are we talking about the same rail line here or just a hypothetical rail line? [00:44:43] Speaker 04: I'm not talking about this one here. [00:44:44] Speaker 04: I told you this is a hypothetical question. [00:44:46] Speaker 04: I can't imagine which rail line is going to affect standing. [00:44:48] Speaker 04: But if it does, tell me why. [00:44:50] Speaker 06: It does because it determines whether the injury that Mr. Riffin allegedly suffered is speculative or not. [00:44:56] Speaker 06: Because it's not just that Mr. Riffin had to go through the process, prepare his financial offer, receive this information. [00:45:03] Speaker 06: His interest ultimately is in acquiring the rail line. [00:45:06] Speaker 06: And so if he has no chance of acquiring the rail line, [00:45:09] Speaker 06: then any injury he suffered along the way wouldn't really help him in his ultimate goal of, or if it had changed and he hadn't suffered that injury, it wouldn't help him in actually vindicating his interest that he's basing his injury on. [00:45:22] Speaker 06: And so because in this case, it was clear from the record that there had been no traffic on the line for five years. [00:45:29] Speaker 06: There's no shippers on the line. [00:45:31] Speaker 04: Let's imagine an agency says, we have a piece of real estate here that we're selling. [00:45:38] Speaker 04: to the public, interested members of the public. [00:45:41] Speaker 04: Here's a bidding process. [00:45:43] Speaker 04: There'll be a process for vetting the bids. [00:45:46] Speaker 04: We'll examine them. [00:45:47] Speaker 04: We'll look at the best offer, but it won't just be money. [00:45:51] Speaker 04: We'll look at how it's planned to be used. [00:45:54] Speaker 04: It's going to be sort of a complicated review process. [00:45:58] Speaker 04: But members of the public are invited to submit bids, unless, unless, [00:46:08] Speaker 04: They are Jehovah's Witnesses. [00:46:13] Speaker 04: Standing to challenge that, if you're a Jehovah's Witness? [00:46:17] Speaker 04: Yes. [00:46:17] Speaker 04: And you wanted to buy that property? [00:46:18] Speaker 04: Yes. [00:46:20] Speaker 04: Right. [00:46:21] Speaker 04: Because you wanted to have a fair chance to compete to buy that piece of property? [00:46:28] Speaker 04: Yes. [00:46:29] Speaker 04: Even though it's not guaranteed that you're going to get the piece of property at the end of the day? [00:46:35] Speaker 04: We don't consider that too speculative in that situation, right? [00:46:40] Speaker 06: Yes, I would raise two differences, I think. [00:46:44] Speaker 06: Yes, there is standing there, and I'd raise two differences between that case and this case. [00:46:48] Speaker 06: First of all, I think there may be an independent injury based on the simple fact of the discrimination. [00:46:57] Speaker 06: without getting too into the weeds and that doctrine, I think. [00:47:02] Speaker 04: We'll take out the first map. [00:47:03] Speaker 04: We'll just say, but here's a list of people we don't like. [00:47:07] Speaker 04: Here's a list of 50 people we don't like for personal reasons. [00:47:14] Speaker 04: And the board members personal reasons. [00:47:16] Speaker 04: They can't bid. [00:47:18] Speaker 04: Different standing answer? [00:47:21] Speaker 06: Still, I believe so. [00:47:22] Speaker 06: It's still standing. [00:47:24] Speaker 06: But I think it's because we're not [00:47:26] Speaker 06: The injury to compete is not something I think that is really suggested by the financial offer statute. [00:47:36] Speaker 06: That this is more of a regimented process, which certain qualifications have to be met. [00:47:41] Speaker 06: That it's about a certain line of railroad that has its own characteristics that are part of that financial offer process. [00:47:49] Speaker 06: And it's possible, as with here, that for some lines of railroad, [00:47:54] Speaker 06: No financial offer would succeed simply because there's no chance of rail service ever being restored without. [00:48:03] Speaker 04: Okay, my colleagues. [00:48:06] Speaker 04: Thank you for helping with that. [00:48:09] Speaker 04: You don't have any further questions. [00:48:10] Speaker 04: Thank you for. [00:48:11] Speaker 04: Thank you. [00:48:12] Speaker 04: Okay, Mr. Griffin, we'll give you 2 minutes. [00:48:41] Speaker 02: Thank you, your honor. [00:48:43] Speaker 02: Can you hear me? [00:48:44] Speaker 07: Yes. [00:48:46] Speaker 02: I don't know if you noticed me smiling there while you were talking about someone not liking the person. [00:48:52] Speaker 02: If you read the board's and intervener's briefs, you may deduce I'm not well liked by either the board or the intervener. [00:49:04] Speaker 02: And that's primarily because [00:49:06] Speaker 02: I tend to challenge a lot of their decisions. [00:49:09] Speaker 02: The whole reason for this 1152.27 revision in 2017 is because of me. [00:49:15] Speaker 02: Everything in there other than the credit card thing, they were my decisions. [00:49:21] Speaker 02: Move on. [00:49:23] Speaker 02: You asked when I was first here, can I give you a statute or at least a case to back up my point? [00:49:31] Speaker 02: I can. [00:49:32] Speaker 02: I should have. [00:49:33] Speaker 02: It's on page 16 of my supplement if you happen to want to look at it, but it's the Conrail abandonment of a portion of the West 30th Street secondary track in New York, New York. [00:49:43] Speaker 02: It's docket number AB167, that's Conrail, 493N. [00:49:49] Speaker 02: And in that case, the ICC said, where third parties have acquired rights or interest in the outcome of an abandonment proceeding, request [00:50:00] Speaker 02: The SDB may deny a railroad's request to withdraw a filing if the agency finds it, it is in the public interest to do so. [00:50:10] Speaker 02: I actually discussed that in my reply brief on pages 17 and 18, and in this particular case, I am saying that [00:50:19] Speaker 02: The board needed to address the public issue, the public interest issue, in a decision because Wright had vested in a third party, namely me. [00:50:32] Speaker 02: This is definitely not a routine proceeding. [00:50:35] Speaker 02: Contrary to what Council for the STB said, the STB no longer routinely rejects abandonment petitions when they contain false statements. [00:50:47] Speaker 02: They used to. [00:50:50] Speaker 02: 20 years ago when I started doing this, Consonant was in charge of the Office of Proceedings. [00:50:56] Speaker 02: Had Norfolk 7 filed what it filed in this proceeding then? [00:51:01] Speaker 02: It never would have even made it to the board's website. [00:51:04] Speaker 02: I can tell you, I keep referring to this other case. [00:51:07] Speaker 02: It's AB 1344 is the case. [00:51:09] Speaker 02: It's out in Colorado. [00:51:11] Speaker 02: You're probably going to see it again. [00:51:13] Speaker 02: You're probably going to see it because the same thing has happened there. [00:51:17] Speaker 02: False statements were made. [00:51:19] Speaker 02: The board is aware of these false statements. [00:51:22] Speaker 02: The board has not rejected it. [00:51:24] Speaker 02: The board doesn't want to reject it. [00:51:25] Speaker 02: The board did not want to reject this one. [00:51:28] Speaker 02: So they didn't. [00:51:30] Speaker 02: Had they rejected it, I would have been comfortable with that, but they didn't. [00:51:34] Speaker 04: Thank you. [00:51:34] Speaker 04: I think you're over your rebuttal time now. [00:51:38] Speaker 04: My colleagues don't have any further questions. [00:51:40] Speaker 04: Well, thank you. [00:51:41] Speaker 02: I can't hear you. [00:51:42] Speaker 02: What are you saying? [00:51:42] Speaker 04: You're over. [00:51:43] Speaker 04: You've exceeded your rebuttal time now, but we appreciate your arguments here today, arguments of all counsel, and the case is now submitted. [00:51:51] Speaker 04: Thank you. [00:51:52] Speaker 02: Thank you, Your Honors. [00:51:54] Speaker 02: Thank you for giving me the time to chat.