 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 23, 2006                   Decided July 25, 2006

                         No. 05-1233

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN,
  A DIVISION OF THE RAIL CONFERENCE-INTERNATIONAL
             BROTHERHOOD OF TEAMSTERS,
                      PETITIONER

                              v.

           SURFACE TRANSPORTATION BOARD AND
               UNITED STATES OF AMERICA,
                     RESPONDENTS

     KANSAS CITY SOUTHERN RAILWAY COMPANY AND
              KAW RIVER RAILROAD, INC.,
                    INTERVENORS


          On Petition for Review of an Order of the
               Surface Transportation Board



     Gordon P. MacDougall argued the cause and filed the briefs
for petitioner.

    Marilyn R. Levitt, Attorney, Surface Transportation Board,
argued the cause for respondent. With her on the brief were
Thomas O. Barnett, Acting Assistant Attorney General, U.S.
Department of Justice, John J. Powers, III and Robert J.
                                2

Wiggers, Attorneys, Ellen D. Hanson, General Counsel, Surface
Transportation Board, and Craig M. Keats, Deputy General
Counsel.

    Before: GINSBURG, Chief Judge, and BROWN and GRIFFITH,
Circuit Judges.

     GINSBURG, Chief Judge: The Kaw River Railroad, Inc.
(KRR) secured the authorization of the Surface Transportation
Board to acquire by lease, sublease, and assignment some 18.2
miles of track controlled by the Kansas City Southern Railway
Company (KCS). The Brotherhood of Locomotive Engineers
and Trainmen, which represents employees of the KCS, argues
the Board did not have jurisdiction to approve the transfer
because the track is “switching” track and therefore excepted
from STB authority pursuant to 49 U.S.C. § 10906. We dismiss
the petition because the Union does not have standing to seek
review.

                         I. Background

     Under the Interstate Commerce Act, as amended, a
noncarrier may “acquire a railroad line or acquire or operate an
extended or additional railroad line, only if the Board issues a
certificate authorizing” the action. Id. § 10901(a)(4); cf. id. §§
10901-03, 11323 (rail carrier generally must obtain Board
authorization before it may construct, acquire, or initiate or
cease operations over, rail line). The Board must exempt a
transaction from the authorization process, however, when it
determines regulation is unnecessary to carry out the policies of
the statute. See id. § 10502.

    In 2004 the KRR, then a noncarrier, filed with the Board a
“Notice of Exemption” pursuant to the Board’s “class
exemption” procedure, seeking authority to acquire from the
                                 3

KCS and operate 18.2 miles of track as a common carrier. See
Class Exemption for the Acquisition & Operation of Rail Lines
Under 49 U.S.C. 10901, 1 I.C.C.2d 810 (1985) (exempting
nearly all acquisitions and operations from § 10901 unless
adversely affected party files petition to revoke exemption); 49
C.F.R. §§ 1150.31-1150.35. Before the KRR made its filing, the
KCS had been conducting switching and other operations over
the tracks.

     The Union filed a petition to revoke the exemption pursuant
to 49 U.S.C. § 10502(d), arguing the Board could not approve
the transaction because, as “switching” track, it was excepted
from the Board’s authority. See id. § 10906 (“Notwithstanding
section 10901 .... [t]he Board does not have authority under this
chapter over ... spur, industrial, team, switching, or side tracks”).
Unlike a transaction exempted under § 10502 from the rigors of
§ 10901, a transaction excepted under § 10906 is outside the
Board’s authority altogether, so that prior Board approval is
neither required nor appropriate.

     Whether a transaction is exempt under § 10502 or excepted
under § 10906, the result is the same: The Board does not
regulate it. The difference was significant to the Union,
however, because of the collective bargaining agreement (CBA)
the Union had negotiated with the KCS. That CBA provided
with respect to transactions “authorized under § 10901,” but not
with respect to transactions excepted from the Board’s authority,
that “the arrangements provided [herein] shall be deemed to
fulfill all of the parties’ bargaining obligations that may exist
under any applicable statute, agreement or other authority with
respect to such transaction.” In other words, the KCS did not
have to bargain with the Union before it consummated a
transaction authorized under (or exempted from) § 10901. The
upshot was that the Union argued the KRR’s filing for
exemption was “a scam” intended to change the “rates of pay,
                                4

rules or working conditions of its employees, ... as embodied in
agreements” between the Union and the KCS, 45 U.S.C. §§ 152
Seventh, 156, without following the collective bargaining
procedures required by the Railway Labor Act, id. § 151 et seq.

     The Board denied the Union’s petition, thereby allowing the
transaction to go forward exempt from § 10901. The KRR had
disputed the Union’s assertion that all the track at issue was
switching track, but the Board concluded that “even if the track
in question could have been characterized as switching track
under 10906 when operated by the previous operator,” it was the
KRR’s prospective use of the track that controlled its
characterization. See Effingham R.R., STB Docket No. 41986,
1997 WL 564155 (STB served Sept. 12, 1997), aff’d sub nom.
United Transp. Union-Illinois Legislative Bd. v. STB, 183 F.3d
606 (7th Cir. 1999); Bhd. of Locomotive Eng’rs v. STB, 101 F.3d
718, 726-28 (D.C. Cir. 1996) (transaction subject to Board
authority where switching operation had “effect of substantially
extending the tenant railroads’ lines into new territory”). The
Board reasoned that because the “new operation made possible
by this transaction constitutes KRR’s entire line of railroad,” the
track was “encompassed by 10901” and the KRR needed either
the Board’s authorization under, or an exemption from, § 10901.
“Merely characterizing the proposed operations as switching
does not relieve a rail operator of the obligation to obtain a
Board license if the operator is holding out common carrier
service to the public over a line of railroad.” The Union
petitions for review of this decision.

                          II. Analysis

    The Union argues on review that the Board could not
lawfully approve the KRR’s acquisition of track from the KCS
through its class exemption procedure because the transaction is
excepted from the Board’s authority under § 10906. The Board
                               5

argues the Union lacks prudential standing because its sole
interest here is in requiring the KCS to bargain under the RLA.
See Bhd. of Locomotive Eng’rs, 101 F.3d at 723 (in addition to
constitutional requirements of standing, party claiming to be
aggrieved by agency action must show “interest sought to be
protected by the complainant [is] arguably within the zone of
interests to be protected or regulated by the statute ... in
question”) (quoting Ass’n of Data Processing Serv. Orgs., Inc.
v. Camp, 397 U.S. 150, 153 (1970)).

     We begin our analysis, as we must, with the question of our
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 93 (1998). Because we conclude we lack jurisdiction
under Article III of the Constitution of the United States, we do
not address the Board’s prudential standing argument. See High
Plains Wireless, L.P. v. FCC, 276 F.3d 599, 605 (D.C. Cir.
2002) (court has independent duty to assure itself of its
jurisdiction); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
585 (1999) (“It is hardly novel for a federal court to choose
among threshold grounds for denying audience to a case on the
merits”); Free Air Corp. v. FCC, 130 F.3d 447, 448 n.1 (D.C.
Cir. 1997) (passing over respondent’s prudential standing
argument where petitioner lacked Article III standing).

     Three elements are necessary to establish the “irreducible
constitutional minimum of standing”: (1) “injury in fact,” (2) “a
causal connection between the injury and the conduct
complained of,” and (3) a likelihood the injury “will be
‘redressed by a favorable decision.’” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (citation omitted). The
Union argues the injury in this case is twofold. First, it claims
the KRR’s acquisition of track previously owned or leased by
the KCS caused some KCS employees to lose some job shifts to
KRR employees and thereby to suffer a partial “loss of
employment,” a “reduction in earnings,” or a displacement to
                                6

“less desirable work ... at less desirable locations.” Second, the
Union claims the Board’s exemption of the transaction
prevented the Union from invoking the bargaining procedures
of the RLA.

    We fail to see how the former injury is redressable. If the
Union prevails here, the transaction would be excepted from
Board authority pursuant to § 10906 rather than exempted from
the procedures of § 10901 pursuant to § 10502. The Union
advances no reason to believe that as a result the Union’s
members would be restored to their prior shifts, higher wages,
and more desirable work.

     The latter injury is redressable, however; if it prevails, the
Union would have the opportunity to negotiate with the KCS
under the procedures of the RLA because it would avoid the
provision in its negotiated collective bargaining agreement, in
which it waived the right to bargain anew in the event of a
transaction exempted from § 10901. And that is sufficient to
meet both the injury and the redressability requirements of the
standing inquiry. See Bhd. of Locomotive Eng’rs, 101 F.3d at
724 (“The possibility that one characterization of the transaction
could lead to greater labor protection than another ... yields
sufficient potential for greater protection to [the] employees to
provide a justiciable injury”).

     The Union’s claim derails, however, when it hits the
requirement of causation. In order to establish causation, the
claimed injury -- here the Union’s inability, under the terms of
its CBA with the KCS, to invoke its right to bargain as provided
in the RLA -- must be “fairly ... trace[able] to the challenged
action” of the Board, that is, exemption of the track here at
issue. Defenders of Wildlife, 504 U.S. at 560 (quoting Simon v.
E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). The
Board’s decision means the Union is not entitled to bargain over
                                 7

the effects of the transaction only because the Union agreed to
that limitation in its CBA. This injury was not in any
meaningful way “caused” by the Board; rather, it was entirely
self-inflicted and therefore insufficient to confer standing upon
the Union. See Petro-Chem Processing, Inc. v. EPA, 866 F.2d
433, 438 (D.C. Cir. 1989) (self-inflicted injury does not support
standing if it is “so completely due to the [complainant’s] own
fault as to break the causal chain”) (quoting 13 C. Wright, A.
Miller & E. Cooper, Fed. Practice & Procedure: Jurisdiction
2d § 3531.5 (2d ed. 1984)); see also McConnell v. FEC, 540
U.S. 93, 228 (2003) (no standing for political candidates who
claimed injury from law increasing limits on “hard money”
contributions; injury was caused by “their own personal ‘wish’
not to solicit or accept large contributions”); Pennsylvania v.
New Jersey, 426 U.S. 660, 664 (1976) (rejecting plaintiff states’
standing to challenge defendant states’ tax on income of
nonresident employees; diminution of taxes paid to plaintiff
states was “self-inflicted” by their decisions to credit taxpayers
for income taxes paid to other states and no state “can be heard
to complain about damage inflicted by its own hand”); Taylor v.
FDIC, 132 F.3d 753, 767 (D.C. Cir. 1997) (no standing for
plaintiffs who claim constructive discharge based upon
voluntary resignations); McKinney v. U.S. Dep’t of Treasury,
799 F.2d 1544, 1555-56 (Fed. Cir. 1986) (union of
longshoremen sued by third parties for members’ refusal to
handle Soviet goods lacked standing to bring own suit to
challenge government’s refusal to block importation of same as
products of forced labor).

     As the Board points out, had the Union not traded away its
right to bargain over the effects of exempted transactions, it
would have no interest -- at least no interest it has identified here
-- in seeing the KCS/KRR transaction excepted from the
authority of the Board rather than exempted by the Board; its
right to bargain would be the same in either event. Therefore,
                                 8

the Union can no more claim standing than could a person who
placed a wager upon the outcome of an agency decision and lost
the bet, his rights being otherwise unaffected. Although the
gambler would not have lost the wager “but for” the agency’s
decision, we explained in Huddy v. FCC, 236 F.3d 720, 724
(2001), that “acceptance of such ‘but for’ causation would
effectively enable parties to secure constitutional standing
purely at their own volition.” See id. (“Suppose that two
persons, without interests at stake in an agency process, had bet
a sum of money on its outcome. If ‘but for’ causation of the
kind involved here were enough, the party picking the losing
side would satisfy the causation prong, and, unless the wager
were illegal, standing would ensue.”) (dictum); see also William
Blackstone, 3 Commentaries *452 (describing the “feigned
wager” by which, in order to have issue at equity heard by jury
at law, the pretended plaintiff “declares that he laid a wager ...
with the defendant, that A. was heir at law to B. ...; and thus the
verdict of the jurors at law determines the fact in the court of
equity”). But see Cmty. Nutrition Inst. v. Block, 698 F.2d 1239,
1247 (D.C. Cir. 1983), rev’d on other grounds, 467 U.S. 340
(1983) (“A plaintiff need only make a reasonable showing that
‘but for’ defendant’s action the alleged injury would not have
occurred”) (dictum). The harm suffered, “insofar as it is
incurred voluntarily,” is simply not “fairly ... trace[able]” to the
challenged action of the agency. Petro-Chem Processing, 866
F.2d at 438.

     The Union argues the cause of its plight is the Board’s
exemption of the transaction because the exemption would have
limited its rights under the RLA even if there were no CBA.
The Union cites two cases in support of this proposition. First,
in its reply brief it cites Pittsburgh & Lake Erie R.R. v. Ry.
Labor Executives’ Ass’n, 491 U.S. 490, 512 (1989) (P&LE),
which involved an exempted sale of all the employer’s assets to
a noncarrier. The Court held that, although the employer could
                                9

be required to bargain with its union over the effects of the sale,
the union could not in the interim prevent the sale from going
forward pursuant to § 6 of the RLA, as amended, 45 U.S.C. §
156 (rates of pay, rules, or working conditions cannot be
changed by carrier until completion of bargaining). P&LE, 491
U.S. at 512. In the present case the Union (which implicitly
assumes the same rule applies to the sale or lease of less than all
a carrier’s assets) argues that, even if it had not traded away its
right to bargain over the effects of an exempt transaction, the
Board’s approval under (or exemption from) § 10901 would
have prevented it from getting an injunction against the
KCS/KRR transaction. The Union may be correct, but its point
is irrelevant. The relevant question is whether it could have
gotten an injunction were the transaction not exempted under §
10502 but instead excepted from the Board’s authority under §
10906, and the answer supplied by P&LE is no.

     In P&LE, there was no agreement between the railroad and
the union, express or implied, that the carrier would not go out
of business or sell its assets. 491 U.S. at 503-04. For this
reason, the sale could not be stayed under § 156. Id. at 512. Nor
was the sale a change in “working conditions” governed by §
156 even in the absence of an agreement, pursuant to Detroit &
Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142
(1969). See P&LE, 491 U.S. at 504-11. The Court was clear
that its holding “rest[ed] on [its] construction of the RLA and
not on the pre-emptive force of [§ 10901].” Id. at 512; see also
id. at 509 (“we find nothing in the RLA to prevent the
immediate consummation of P&LE’s contract to sell”). The
Court’s rationale applies equally to limit the Union’s ability to
enjoin a transaction excepted from the Board’s authority under
§ 10906. It follows that the Union could not have enjoined the
sale under the RLA whether the transaction was exempted or
excepted. With respect to an injunction, therefore, neither the
CBA nor the Board’s exemption decision made the Union any
                               10

worse off; with respect to bargaining, however, the Union still
has only the CBA to blame.

     At oral argument counsel also invoked Brotherhood of
Railway Carmen v. ICC, 880 F.2d 562 (D.C. Cir. 1989),
reversed on appeal sub nom. Norfolk & Western Railway v.
American Train Dispatchers’ Ass’n, 499 U.S. 117 (1991), in
support of its argument that, quite apart from the CBA, its right
under the RLA to bargain was cut off by the Board’s exempting
the transaction from § 10901 rather than deeming it excepted
under § 10906. The significance of that case is to the contrary,
however: The Union had the same statutory right to bargain
over the effects of the KCS/KRR transaction regardless whether
it was exempted from § 10901 or excepted from the Board’s
authority per § 10906; only the CBA limited its right to bargain
over an exempt transaction.

     In the cited case, the Supreme Court held agency approval
of a merger under what is now 49 U.S.C. § 11323 (Board
approval required for consolidation, merger, or acquisition of
control of one rail carrier by another) superseded, to the extent
necessary to carry out the transaction, the employer’s obligation
under the RLA to bargain with the union representing its
employees. Am. Train Dispatchers, 499 U.S. at 131. In doing
so, the Court relied upon both § 11341(a) (now § 11321(a)),
which provides that consolidations are “exempt from ... all other
law ... as necessary to ... carry out the transaction,” and upon
other provisions of “the Act [imposing] a number of labor-
protecting requirements to ensure that the Commission
accommodates the interests of affected parties to the greatest
extent possible.” See Am. Train Dispatchers, 499 U.S. at 132-
33. Neither aspect of that rationale applies to a transaction
subject to § 10901. Unlike a consolidation, merger, or
acquisition covered by § 11323, the acquisition of a rail line by
a noncarrier subject to § 10901 is not made immune from “all
                               11

other law” by § 11321; and § 10901(c) expressly precludes the
imposition of labor-protective measures as a condition for
approval of a transaction under § 10901. Therefore, as the
Supreme Court has made clear, § 10901 does not cut off the
Union’s right under the RLA to bargain over the effects of an
exempt transaction. See P&LE, 491 U.S. at 512 (railroad
obligated to bargain over effects on working conditions of sale
exempted from § 10901). Nor would the Union’s right to
bargain have been limited were the transaction excepted from
the Board’s authority pursuant to § 10906, which neither
displaces “all other law” -- such as the RLA -- nor permits the
Board to impose labor-protective conditions. Accordingly, the
Union’s rights under the RLA would have been identical
regardless whether the transaction was exempted or excepted --
had it not negotiated away its right to bargain with respect to an
exempt transaction.

                        III. Conclusion

     The Union has failed to identify any injury that is fairly
traceable to the Board’s decision exempting the KCS/KRR
transaction from § 10901. Its only injury -- inability to bargain
over the transaction -- is attributable to the Union’s having
agreed to a CBA waiving its right to bargain over any
transaction exempt from § 10901. This injury being self-
inflicted, the Union lacks standing to seek review of the Board’s
decision and its petition is accordingly

                                                      Dismissed.
