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Your Right To Be On Time

May 21, 2019

After Years Of Tussle, We Head Again To The Supreme Court...Or Do We?

by Jim Mathews / In the seemingly never-ending saga of settling once for all how Amtrak and host railroads can agree on measuring on-time performance for passenger trains, the host railroads' umbrella organization -- the American Association of Railroads -- is again pressing for the Supreme Court to hear its appeal of our victory last summer in the federal Court of Appeals for the DC Circuit.

This petition to the Court, formally known as a request for a writ of certiori, or "cert," could set the stage for another chapter in this saga this Fall if the Court grants the petition.

While it’s always dangerous to try to predict what the Supremes will do, there are a lot of factors in play that suggest they just might not grant cert this time around, meaning they might decline to hear the case.

First, this very arcane case has been passed like a ping pong ball throughout the federal judiciary and the Justices may simply be tired of it. Second, there’s little to no new Constitutional ground to be plowed. Third, because Justice Brett Kavanaugh was one of the judges who ruled in the DC Appeals case, he would have to recuse himself on appeal. This, in turn, would mean that four justices would have to vote to hear the case already knowing in advance that the eventual vote on the case itself might well be a 4-4 split...diluting the precedential value of any resulting opinion. Fourth, the Solicitor General has already agreed with us on the merits, meaning there’s a pretty good argument to say that the DC Circuit and DC Appeals decided correctly and it's time to move on.

If the Supreme Court denies certiori this time around, passengers would have reason to cheer. That’s because it would let the favorable DC Appeals decision stand. Next stop in that instance would be the Surface Transportation Board, where regulatory matters are regularly aired out by experts who know and understand transportation and railroading.

As they say, "Stay Tuned..."