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Passengers Win...Again

June 3, 2019

Supreme Court Declines To Hear AAR's Appeal Of Passengers' DC Circuit Victory

by Jim Mathews, President and CEO

The Supreme Court today rejected the Association of American Railroads' petition to hear an appeal of a crucial victory for passenger rail last summer in the DC Circuit Court of Appeals, clearing the way for Amtrak and the Federal Railroad Administration to again work together to set metrics and standards for on-time performance and to defend your right to be on time.

This is terrific news for everyone who relies on trains to get to work, to school, and to visit friends and family. It's even more important for our disabled folks, seniors and veterans for whom trains are a lifeline and late trains are a threat.

After a decade of litigation, briefs, filings, letters, claims and counterclaims, this long-running saga ended with just 22 simple words: "The petition for a writ of certiorari is denied. Justice Kavanaugh took no part in the consideration or decision of this petition."

The practical effect of the Supreme Court's denial of AAR's petition is that the DC Appeals Court's 2-1 ruling last summer stands in favor of Amtrak and the FRA.

With on-time performance last summer at record lows, America’s rail travelers had been waiting for years for the courts to step in and protect the rights of the traveling public – rights that Congress has clearly, unmistakably, and repeatedly written into law, and rights for which your Association has gone to bat, in Congress AND in federal courts across the U.S.

AAR had argued that Amtrak is a for-profit corporation like any other, and giving it the power to work with FRA regulators to set OTP standards amounted to giving that corporation an unfair competitive advantage.

Our position, which the Appeals court vindicated and which the Supreme Court has now declined to overturn, is that the lower courts erred in gutting the protections passed by Congress in the 2008 Passenger Rail Investment and Improvement Act (PRIIA) and that the Appeals court got it right.

We also argued, and the Appeals court agreed, that the Surface Transportation Board (STB) can set and enforce standards to protect rail passengers, contrary to the argument made in lawsuits brought by the freight rail industry.

And of course the Supreme Court itself has already ruled in a separate case that Amtrak is a government instrumentality – an inescapable conclusion, given that its leadership is appointed by the President with the advice and consent of the Senate and that the railroad gets a federal appropriation each year to operate. It's one reason I thought last week was a good time to remind everyone that, contrary to AAR's argument (along with the Washington Post and the Heritage Foundation), Amtrak does not have to be a for-profit company.

For good measure, the U.S. Solicitor General told the Supreme Court last year that he agreed with our interpretation.

We're looking forward to everyone involved rolling up their sleeves and working on how to balance the legitimate needs of the host railroads for network fluidity and capacity with the equally legitimate -- and lawful -- needs of the rail-riding public to get where they're going on time. This was the deal the railroads agreed to back in 1971 when the taxpayers took over the common-carrier responsibilities the railroads hoped to shed. Let's stop squabbling and make this thing work.