                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0262n.06
                            Filed: April 14, 2006

                                           No. 05-3788

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



TERMINAL WAREHOUSE, INC.,                       )
                                                )
       Petitioner,                              )
                                                )
v.                                              )   ON PETITION FOR REVIEW OF AN
                                                )   ORDER OF THE SURFACE
CSX TRANSPORTATION, INC.; SURFACE               )   TRANSPORTATION BOARD
TRANSPORTATION BOARD; UNITED                    )
STATES OF AMERICA,                              )
                                                )
       Respondents.                             )



       Before: SUHRHEINRICH, ROGERS, and COOK, Circuit Judges.


       COOK, Circuit Judge. Respondent CSX Transportation sought and received permission

from Respondent Surface Transportation Board to abandon a stretch of track servicing Petitioner

Terminal Warehouse. Terminal then filed a complaint with the Surface Transportation Board

(“STB”), seeking damages from CSX for breaching its common-carrier duty and asking the Board

to find the track-abandonment void. The STB dismissed Terminal’s damages complaint and

determined that CSX properly abandoned the track. Terminal petitions this court for review of the

STB’s decision. Because the STB did not act arbitrarily or capriciously or otherwise abuse its

discretion, we deny the petition for review.


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       CSX owned a railroad bridge that was damaged when a third party attempted to install fiber

optic cable along the bridge. The damage rendered the bridge structurally unsound, and CSX

removed the bridge rather than repair it. The removal of the bridge cut off access to the “Lumber

Lead Line”—a .07-mile section of railroad on which a Terminal facility sits. After it removed the

bridge, CSX issued an embargo.1 CSX then sought an exemption from the normal procedures

governing abandonment of a line, certifying, as required by STB regulations, that over the last two

years “no local traffic ha[d] moved over the line” and that no complaint “regarding cessation of

service over the line” had been decided in favor of a complainant or was then pending. 49 C.F.R.

§ 1152.50(b). Upon being granted the exemption, CSX abandoned the line.


       Terminal, who last used the line thirteen months prior to the damage and twenty-six months

prior to the abandonment, asked the STB to revoke CSX’s exemption, arguing that CSX obtained

the exemption using “false or misleading statements.” Specifically, Terminal argued that CSX’s

statement that no local traffic had moved over the line in two years was misleading because CSX

did not disclose that the Line was embargoed for part of that time. Terminal also filed a complaint

seeking damages for CSX’s alleged breach of its common-carrier duty to provide transportation

upon Terminal’s reasonable request. The STB denied Terminal’s petition to revoke CSX’s

exemption because the Board determined that CSX had not obtained its exemption through false or




       1
        An embargo temporarily exempts a common carrier from its statutory duty to provide
service upon reasonable requests for rail transport. See GS Roofing Prods. Co. v. Surface Transp.
Bd., 143 F.3d 387, 391-92 (8th Cir. 1998).

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misleading statements. In the same decision, the STB dismissed Terminal’s complaint for damages

because it found that neither Terminal nor any other carrier had requested service during CSX’s

embargo. Terminal moved for reconsideration and filed this petition when the STB denied the

motion.


                                                   II


        We uphold the STB’s findings and conclusions “unless they are ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with the law, . . . [or are] unsupported by

substantial evidence.’” City of Riverview v. Surface Transp. Bd., 398 F.3d 434, 439-40 (6th Cir.

2005) (quoting 5 U.S.C. § 706(2)) (first alteration in original). We review the STB’s original merits

determination rather than the STB’s decision denying Terminal’s petition for reconsideration. See

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 279-80 (1987) (holding that, where a petition for

reconsideration is brought only for “material error” and not for new evidence, an order denying

reconsideration is unreviewable, and it is “irrelevant that the . . . order . . . discussed the merits of

the . . . claims at length”).


                                      A. Exemption Revocation


        Terminal first argues that the STB erred in failing to revoke CSX’s abandonment exemption.

A typical application to abandon a stretch of railway requires a number of steps. See 49 U.S.C. §

10903. If a carrier meets certain conditions, however, it can seek an exemption from the usual



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abandonment requirements. See 49 U.S.C. § 10502. One requisite to exemption is the carrier’s

certifying that no local traffic (that is, traffic that either originates or terminates within a particular

stretch of rail)2 has moved over the line in the last two years. 49 C.F.R. § 1152.50(b). The carrier

must further certify that the proposed abandoned line is not the subject of any pending complaints

regarding an illegal embargo or other cessation of service and that no such complaints have been

successful within the past two years. Id.


                                       1. Movement on the Line


        A granted exemption is void if the notice of exemption provided to the STB contains “false

or misleading information.” 49 C.F.R. § 1152.50(d)(3). Terminal argues that such is the case here,

because CSX certified that no traffic had moved over the line in two years but neglected to inform

the Board that, for a year of that time, track damage and an embargo rendered such movement

impossible. Prior to the damage, alleges Terminal, “the [line] was used on a regular basis.” Its

support for this allegation is: (1) it used the line on January 20, 2001; (2) another shipper used the

line on March 10, 2001; and (3) “it is likely that other shippers . . . shipped goods on this rail line.”

Terminal maintains that the abandonment exemption is meant to apply to lines that are out of service

because of lack of demand, not out of service because of track damage and embargoes.


        None of this, however, renders CSX’s notice of exemption false or misleading. First, the


        2
         Traffic that merely passes through the stretch is called “overhead” traffic, and the carrier,
to obtain an exemption, must certify that all overhead traffic can be successfully rerouted.

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Terminal Warehouse v. CSX Transportation


regulations clearly contemplate the possibility that a carrier will seek an exemption after its line has

sustained track damage or has been embargoed; they require that the carrier certify not only that no

local traffic has moved over the line for two years, but also that in that time no party has

successfully complained of an improper embargo or other service failure, and that no such complaint

was pending. Thus CSX’s failure to disclose the embargo or the track damage to the STB does not

render its certification false or misleading.


        In addition, Terminal concedes that it last used the line over thirteen months prior to the

bridge damage, and no evidence supports Terminal’s contention that “another shipper used the line

on March 10, 2001.” Terminal merely speculates that some other shipper must have used the line

on that date because, two years later on March 10, 2003, CSX certified that no local traffic had

moved over the line “for a period of at least two years.” And Terminal’s conjecture about the

“likely” activity of other shippers likewise falls short.


                                 2. Other Allegedly False Statements


        In its reply brief, Terminal points to other statements in CSX’s Notice of Exemption that it

believes contained false or misleading information. But we have “consistently held that we will not

consider . . . arguments” raised for the first time on reply. Am. Trim, L.L.C. v. Oracle Corp., 383

F.3d 462, 477 (6th Cir. 2004).


       Absent a showing that any of CSX’s statements were false or misleading, the STB did not



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abuse its discretion or act arbitrarily and capriciously in denying Terminal’s petition for revocation

of CSX’s abandonment exemption.


                                     B. Terminal’s Complaint


        Terminal next turns to its damages complaint, arguing that the STB erred in dismissing the

complaint. CSX, as a common carrier, generally must “provide . . . transportation or service on

reasonable request.” 49 U.S.C. § 11101(a). Where, however, a disability on the part of the carrier

renders it incapable of performing its duty, it may issue an embargo and be temporarily relieved of

this responsibility. GS Roofing Prods. Co. v. Surface Transp. Bd., 143 F.3d 387, 392 (8th Cir.

1998). Thus CSX’s embargo, if valid, provides it with a defense to Terminal’s action for breach of

a common-carrier duty. See id. CSX need not rely on its embargo as a defense in this case,

however, because Terminal failed to demonstrate that it or any other shipper reasonably requested

rail service.


                               1. Absence of a Reasonable Request


        The STB dismissed Terminal’s complaint because it found that Terminal’s “supporting

documents . . . fail[ed] to show that any shipper requested service from CSX[] between the date of

the bridge damage and the date of the abandonment.” See 49 U.S.C. § 11701(b) (“The Board may

dismiss a complaint it determines does not state reasonable grounds for investigation and action.”).

The STB has discretion in determining whether an entity has made a reasonable request for service.



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Granite State Concrete Co., Inc. v. Surface Transp. Bd., 417 F.3d 85, 92 (1st Cir. 2005) (“[S]ection

11101 does not define what would constitute adequate service on reasonable request . . . . The STB

has been given broad discretion to conduct case-by-case fact-specific inquiries to give meaning to

these terms, which are not self-defining, in the wide variety of factual circumstances encountered.”).


           The STB correctly found that Terminal pointed to nothing to show that it (or any other

shipper) actually requested service during the embargo. Terminal alleged in its complaint that its

counsel’s letter to CSX on June 13, 2003 “requested CSX immediately restore transportation

services . . . and immediately provide transportation rail services to Terminal Warehouse.” This

“request,” however, was made after May 23, 2003, the date on which CSX consummated its

abandonment and effectively ended its duty to provide service on the line. In addition, the letter

refers only to abstract potential transportation needs, rather than identifying any imminent need for

service.


       During the embargo, Terminal decided not to bid on one project, and it was not selected as

the contractor for another. Terminal blames these missed opportunities on the lack of rail service

and cites these two projects as evidence of the damages that it incurred as a result of CSX’s

allegedly illegal embargo. But Terminal does not allege that it requested service from CSX after

learning of these opportunities, or even that it consulted CSX regarding the potential availability of

rail service for either of the two opportunities.


       Terminal’s complaint alleged that “other affected shippers” requested service. But the

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complaint seeks a finding that CSX “refus[ed] to provide transportation reasonably requested by

Complainant.” (Emphasis added.) Further, the three documents on which Terminal relies for this

statement do not support it. Akron’s Deputy Mayor’s affidavit does not identify any shippers that

requested service from CSX. The Ohio Rail Development Commission’s post-consummation letter

to the STB likewise does not identify any shippers that requested service; rather it asks the STB “to

ensure the preservation of the rail infrastructure . . . for all current and future rail-dependent users.”

Similarly, the affidavit of B & F Polymers’s president,3 discussing the harm B & F will suffer “if

this rail abandonment is not revoked,” does not indicate that either B & F or Terminal requested

service from CSX.


        Finally, Terminal proffers an equitable argument that it did not request service from CSX

because it was lulled into inaction when a CSX employee told Terminal’s president that CSX

“would likely” repair the line. But, as the STB pointed out in its decision on Terminal’s Petition to

Reconsider, Terminal’s position that “it would have made a request for service but for [CSX’s]

equivocal statement” is unconvincing. Terminal’s December 2002 e-mail to one of its potential

customers belies its contention that it relied on any statement from CSX throughout the embargo

period: “The Metro Regional Transit Authority is trying to buy the line from . . . CSX and we are

discussing the reconnection of rail service from the north. Even if we work that out, it will be quite

some time before the connection is made. My guess is at least 1 year.” Further, a February 14, 2003


        3
         B & F Polymers is a company that, at the time of the track damage and abandonment, was
indefinitely storing two “hopper cars” on the line at Terminal’s facility.

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letter from Terminal’s president indicates that Terminal knew of CSX’s intention to abandon the line

at least a month before CSX filed its notice of exemption.


       Terminal did not show that it reasonably requested service from CSX, nor is Terminal

entitled to relief on equitable grounds. Therefore, the STB did not act arbitrarily and capriciously

or abuse its discretion when it concluded that Terminal’s complaint did not “state reasonable

grounds for investigation and action.” 49 U.S.C. § 11701(b).


                                           2. Discovery


       Terminal also argues that the STB erred by issuing its decision prior to the completion of

discovery. But Terminal’s complaint hinged on its reasonable request for transportation from CSX,

and evidence of such a request would have been within Terminal’s control. And in the abandonment

proceeding Terminal was not entitled to any discovery. We thus find no fault in the STB’s

procedure in this case.


                                                III


       Because Terminal failed to point to any false or misleading information in CSX’s exemption

notice, the STB’s decision to deny Terminal’s petition to revoke the exemption was not arbitrary and

capricious. Likewise, because Terminal did not “state reasonable grounds for investigation and

action,” 49 U.S.C. § 11701(b), the STB did not arbitrarily or capriciously dismiss its complaint. We

deny Terminal’s petition for review.

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