good morning need please the court time to pray on behalf of the association of american railroads this is a constitutional challenge to a statute that gives amtrak the for profit government railroad regulatory authority over private sector railroads the statute further provides that if an track does not exercise its regulatory authority then unspecified arbitrator will step in and draft and issue the federal regulation this is unconstitutional the supremes court's ruling that amtrak must be deemed a government entity for purposes of this case does not change the outcome this court previously reached because this statute is constitutionally before this court so it would be very helpful if you could start there telling us what you think is preserved and why absolutely judge graham we think there are three general arguments that are preserved for this court's review those arguments due process challenge include our challenge to amtrak's constitutional eligibility to be the delegated recipient of rulemaking power and a concern our challenge to the arbitrator provision as far as establishing that these are preserved i suppose the arbitrator provision is probably the clearest because it's long been consented and the government never for this court agrees that it's fair game for a challenge so i think that's settled as far as our first two challenges which the government does contest let me first take due process we preserve our due process challenge deception to a set end at in several different ways the first way it was perth is it set forth in our complaint paragraph fifty four which is reproduced on page twenty one of the joint appendix pleads our due process claim broadly it does not say that the due process violation depends on a determination that amtrak is a private actor paragraph fifty three to be sure does but obviously it's quite common in pleadings to have different paragraphs different claims some are narrowly phrased and some like paragraph fifty four broadly frame even if that were insufficient it's undisputed that we raise our due process argument in the district court in our opposition to the government's motion for summary judgment keep in mind that this case reaches this court on a grant of summary judgment in the government's favor that's the decision that's currently under review and i think it's well settled that when a party raises an argument in opposition to a summary judgment motion and then loses on summary judgment that those arguments are preserved for  that in the government summary judgment briefing where is discourse well where the government has always taken a very amorphous protean position as to whether amtrak is the government and when they suggested that well maybe amtrak could be doing the government we've been fired back and said no that's not permissible because it would raise an appointments cost problem again raise our opposition in summary judgment we lost on summary judgment that's fair game i think even if the court were to overlook or complaining that briefing in the district court it's certainly fair to say that we raised these claims in our first appeal before this court we raised them in the supremes court and to be sure the supreme court's decision i think could fairly be characterized as an intervening change in law the supreme court has now come out and said amtrak must be  government perkasa to show all purposes in this case and is justice alito said dinny amtrak the government raises a host of constitutional questions and there's very good authority for when there's an intervening change in the law such as a supreme court decision that says litigate this case going forward on this premise that even if we hadn't raised the appointments cause challenge before which i think we have but even if we hadn't i think the supreme court's intervening decision would give this court more than ample basis to address on  his opinion by saying i write for the purposes of identifying the issues that are preserved for the d c circuits consideration on reading and i don't think justice thomas was engaging in an empty exercise he obviously thoroughly reviewed the record and he set forth what he no further questions on the preservation issues i'd be delighted to jump into the merits and then perhaps i could begin with due process but we believe that it is self evident that due process does not allow congress to say one market competitor may regulate another that black letter will was first articulated in plain english clearly articulated in the carter polk case where the court said it violates due process to allow a corporation to exercise of question and i think ultimately it turns on is amtrak as constituted by congress capable of acting as a neutral and disinterested regulator that is to say a regulator that can act for the common good in the public interest and not through a narrow only focused and track only lens we think the answer to that question is no for many reasons for one thing amtrak has a for profit mandate congress sent a statute you shall run amtrak as a for profit corporation not as a government regulator in fact if a court were to log on to empress web site this morning they continue to say we are not a public entity we are a for profit so called public focus goals such as they need to operate a train line between florida and louisiana they have to offer reduced rates to disabled passengers they have to buy american goods those sorts of things but the critical point for due process purposes is that nothing in amtrak statute or the way it's constituted or the goals it's supposed to pursue ensures that they will take into account the interests of the freight railroads the regulated parties it doesn't say they'll take into account the interests of the passenger railroads against whom amtrak directly compete to provide passenger service this is a very informative amakosa grief so they did buy a passenger reorganization this case that talks about how they try to compete with amtrak for the right for a franchise to operate passenger service in various cities and towns and the criteria by which these franchises are awarded are the metrics and standards they have a track drafted and then it gets awarded to franchise farai that's right and i think this court press that question is prior decision other words it's a joint fifty fifty split of regulatory authority but the key here of course is that if amtrak wants to do one thing amtrak's decision here in that situation again the arbitrator comes in that's why it's a problem the party doesn't have the final word do you think the problem here is regulate their industry where it's trying to get business and to gain market share to regulate its competitors it's a pain and due process violation and congress done what your honor posited and simply enacted it i think most of the problems we're discussing today would evaporate similarly if congress had vested the f r a with authority to issue the regulations i think a lot of these problems we're discussing would evaporate and i think that's a very telling point in that what we are asking this court to rule would not in any sense hamstring congress from pursuing its objectives in the same way that congress for centuries has pursued its objectives by giving a regulatory agency that is not a commercial business regulatory authority over an industry that's the way that congress has legislated for well over a century the government has never identified a single other government corporation that regulates in the way that this statute allows amtrak to regulate and of course as the supreme court has said the fact that there is no his score precedent for this type of entity is a telling indicator of unconstitutionality i think another way that the due process violation is star is section two zero seven see that's the contract provision that's the provision that says the freight railroads and amtrak shall rewrite their contracts to the extent practicable but they shall rewrite their contracts to  to implement and to integrate the metrics and standards so you have a world in which amtrak negotiates these contracts with my clients wearing its hat as a commercial private business then it cram in our position would be that unless what's practicable is a null set it has to have some effect i think what would happen if we were in a situation where amtrak said this is practicable the railroad said it's not practicable is that ultimately the dispute would be resolved perhaps even up to the surface transportation board which would decide what's reasonable and in that posture i'm very confident that amtrak would come forward and say it's perfectly practicable for them to do this and so we're under a legal duty if the s t b agrees to comply so the practical limitation is some limitation but again unless it's a null set means we don't have to do anything which i can't imagine the government would agree is the case it has to mean something judge we have so many good arguments today it's difficult to know the order in which to structure them but i think it's a very powerful argument the government agrees that it's fully preserved for this court's review i don't think there could be a serious argument that a private individual could issue federal constitutionally exercise his or her duties so when the government scientists say they will stand up in it and urges this please the core point of brought this suit initially based on the view that section two a seven was unconstitutional because it impermissible the delegated authority to a private entity now that the supreme court has made clear that they have tracked is a governmental entity purpose of these claims the rely on the same case whole argue that this constitutes a made clear was that that is not what i have tracked is it is not a private entity it is by no means unaccountable to the political branches to the contrary the political branches as the supreme court recognized control the composition of the board include the secretary of transportation and his delegate he to serve on the board is the federal railroad administration so carter cole involved circumstances far removed from what we have here and moreover the supreme court subsequently as explain there and then although it is clear from the supreme court's decision that there may have been a due process problem with that board exercising adjudicatory functions which of course here there's an independent adjudicator the s t v to resolve any disputes the court was it pains to note that there was no due process problem with regard to the regulatory actions no matter who the board and it seems to be the classification  decision is not that easy in other words it would be what emerges from an track and the agency would be a rule within the meaning of the a standards do is trigger an investigation with regard to the preexisting statutory preference requirement of long standing bids thinking back to one nine hundred seventy three congress but also amendment of a contract and finds rightful no with regard to will no fines of any kind or other relief is the step to experian posed in loss there's been a violation of the preexisting statutory preference requirement all that the metrics as  metrics affect the preexisting statutory preference no your honor what they do is control the circumstances under which proceeding can be instituted by amtrak or a fr b and start a proceeding there's nothing unusual or problematic about a private private even a private individual alone a government entity like amtrak from instituting and adjudicatory proceeding before an independent body what congress did with regard to the metr not mandatory and moreover we think that in context what congress was likely getting at was many of these metrics didn't even address on time performance at all but to the extent you could even and wouldn't make sense even to put into the contract the right where they would ordinary market saying no well they do we think that they would do they would have a right to demand compensation to the extent that they perceive the inclusion of a metric or standard in any of these complicated bilateral negotiated agreements should be put in to saying we want this in it's certainly open to the free world to say what you want to then you're going to have to pay for it and that could turn determine the practicability of whether amtrak wanted pay for it and any disputes would go ultimately to the independent s t b to be resolved and which can has the authority to run resolve  over contract negotiations and those reasonable terms on the pardons that's the independent s t v and each stage there is an old process being provided here and begin to get back to friedman has rogers to before that very board there is nothing close to what the metrics and singers don't even come close to that type of renewal atory conduct and even they are the supreme court recognized that there is no due purely private company or set of coal companies amtrak as the supreme court made clear includes ample control on the part of the political branches  are any of those controls directed to the protection of the host railroads yeah we think the fact that the federal railroad administration is the delegate of the secretary of transportation as a boy and sits in on board meetings the secretary of transportation who is no stranger to the need for proper or fear stand there is to govern the freight railroad industry plays an important role on the board that congress as well is sensitive to the interests of the free structural accountability mechanisms there is an inspector general of amtrak is subject to the four way or regular hearings before congress are held there is no indication that the free world were buying had their due process rights transportation and where there are all these other accountability mechanisms in place we do think it's it's different in kind from what might otherwise be problematic but we don't think in any way there accountability mechanisms identified by the supreme court noted in our brief sort of make clear that there's ample governmental neutral sufficiently young biased governmental control but it's important to recognize that even if the metrics and see endurance were actually regulation this court has indicated that due process concerns operate in much more relaxed fashion with regard to rule making proceedings than they do a decision which is focused narrow very specific parties as opposed to a general rule oh no nothing which state the the way in which the a p a includes both general and particular does not reach out to the let's assume as opposed to ceiling price on steel as a need to allocate steel and b and government motors plus that parent department of transportation allocate have  authority to allocate steel as between government motors and all its competitors is that is that free of due process problems we don't think that's a due process problem but we do wimp a size was it not i mean it certainly sounds very and so i don't know anything in the supreme court again did not hesitate in finding no due process problem with regard to the regulatory aspects of things i want to be clear in follow up on judge williams clash that you're saying that even a situation like that would not raise any due process concerns as far as the government we don't think that would be a due process probably but we do hesitate i'm going to agree to quickly  that we don't hesitate to do what we know but the difference is with regard to amtrak here in all of the controls the congress exercises that the executive branch exercises the control over the composition of the board the fact that government the government owns its stock and the the fact that the secretary of transportation of two does a use of the freight rewards as well serves as a board member of amtrak and we don't think that you can have that same circumstance in what judge williams just described it's government motors right they own stuff it's there it's a governmental entity but it's a governmental entity that is involved in the private sector enterprise and so i'm just trying to understand you know wh don't see here then is any kind of mean it seems like once the government puts its imprimatur on something and says well it's really ours but it's playing you know in the private sector against private companies  is the government's position that then whatever that entity chooses to do there could never be a due process problem because it is quasi governmental or sort of the government  well be important distinctions depending on how much control the government retains over the entity and moreover here it's important to remember that the any bias is really in here is in the back of congress enacted in one nine hundred seventy three the proper into requirement the the public policy the put the public responsibility of ensuring reliable inner city rail that congress properly exercised its authority to say ok then we're going to have amtrak perform this this public objective and function then it's got to have preferred access to the freight railroads traffic and that's what's going on here there's a preexisting statute then makes these judgments that create the any any perceived bias year and there's no due process problems there we really are in the bible and if i'm to just to go back to an earlier point you made your your position i think is that for the host railroads obligations to be creased under this scheme there must in addition be a renegotiation of contract and with respect to that renegotiation the house railroads are and their position on ordinary market and he would be sacked correct year we don't always see them at arm's length with them for we don't see this mass no there would be the m p r could have the opportunity to go to the impartial disinterested estie be to determine what the content of the contracts should be just as with any other aspect of these contracts and the fact that the disinterested s t b would be the ultimate arbiter makes clear that there is no due process problem or doesn't make it all the get a clear because they i mean and what the provision in vision was that the parties to the extent practicable no mandatory obligation would consider whether they would come to an agreement as to whether to put these contracts in  that the s t b in performing its role i mean there's no indication that anybody is insisting that anything be put into the contracts at the present time this is the in terms of the original t that the statutory preference has it's own in the preference requirement itself it provides for in the current version it provides for the a free road if it's concerned about the way it's being interpreted apply can go to the s t b to no it's not that standard if you look at this that you did it talks about what would be the standard subsection c of the relevant provision of the statute but what the statute also makes clear though your honor is that with regard to other disputes with regard to their contracts between the freight railroads and amtrak that's a standing role best c b to resolve them to determine what reasonable condition should be put into the contract  smaller approach i mean we think any even number of possibilities including individuals within the s t v that might be appropriately appointed by the us to be to serve that role we think as explained that again wouldn't even be the exercise of significant for the pot for a possible investigation by the s t d and that's not something that constitutes impermissible the way they do it would really be because all they're doing it's a commonplace to have even private individuals institute adjudications before into these like the s d b as indicated before all these do is relax the circumstances under which are  you you had three minutes or about oh thank you jeff brown my good friend mr rand is asking this court to endorse a massive expansion of government power on the expense of free enterprise mr theory the government could launch the government cola corporation but the head of the f d a is one of the dozen board members and then the government cola corporation can go out and put coke and pepsi out of business by regulating in a way focus lens is the presence of the secretary of transportation on board but let's look at this there are nine board members the secretary has one so even if one were to accept the notion that the secretary is going to be a valiant defender of the interest of freight railroads considered more of a regulatory posture certainly carter poll supports us and the whole point of gibson versus barry hill is that persons exercising government power shouldn't have a personal financial interest in what they're doing think that would offer some degree of protection but again we're operating in a universe where the senior officials of amtrak it's not just this statute they also has adopted a compensation plan that says when amtrak meet certain financial targets they get paid more in talking about what the what happens if the host railroad is absolutely not i will not play right in that circumstance what happens is we go before the s t v ultimately and the  determines what's quote unquote reasonable and i would expect is that what it is that the same as what happened regionally when i'm trying was created well originally when amtrak was created you had railroads and amtrak negotiating individualized operating agreement as private businesses would but over time in this may have been several years after amtrak was created there was originally  the s t v is called in to prescribe reasonable terms and conditions and our point is that that determination is now carried out against the statutory backdrop that says if a term demanded by amtrak suspect the government probably agree that in determining what is reasonable the s t b would likely be guided by a federal statute that says if the terms demanded by amtrak are practicable they have to go in the contract that's the regulatory power and mr ranson point about well ultimately you're going to have e s d the decaying all of this that doesn't change the fact that these metrics and standards set an immediate and a strong regulatory impact on us here writing the law the fact that a independent judge is someday going to determine whether or not we violated the law is immaterial to the constitutional problem which is that  is already approached them and say we expect you to start integrating these into the contract so they've already made that demand that's in the record that's in the record now again to be sure this is not yet elevated to the point where the s t would be called in to adjudicate it but our view is that unless we're prepared to say or the government's prepared to say that nothing will ever be practicable there have to be at least some terms that amtrak is going to try to unilaterally force down on us there have to be some terms that are going to be deemed practicable and in that case it's a clear due process violation amtrak's writing one hundred different terms it says incorporate all of these and maybe will ultimately be ordered to incorporate five or ten or who knows my understanding is that at the outset there were deals between amtrak and the host railroads and least to some degree provision for compensation of the host railroads that does true that's true  to compensation as they did back in the origins of amtrak it is possible you would do it williams in other words to the extent that we are burdened by amtrak skinny and ultimately we would take the position that we have a right to be compensated but i don't think that alleviates the due process problem which is that we're being forced to modify the terms of our contract i don't think it won sure ultimately how it would play out i mean it but i guess my point is simply that the your honour's analysis is more in the realm of the takings that they can take away our property rights as long as the government in theory which i think is a practical matter probably not happen rules are not fully up and say good for hosting amtrak but even if there was some sort of mechanism whereby we could get redress from any contract provisions that were forced on us i still don't think that solves the fundamental due process and not delegation problems in this case it might address the takings argument if we had said this amounts to unconstitutional taking i think out of the a fair point to say you're going to get compensated the end of the day but our challenge is to the fact that congress has given amtrak that power to write the law and i don't think it's a well i'm not sure it would your honor in other words it's certainly if they did what your honor posits i think you would have a valid takings claim if you weren't justly compensated but i don't think it would address the other constitutional violation which is giving a for profit government corporation the power to write the law it's a separate constitutional violation that doesn't have to do with whether or not we're alternately compensated the end of the day the bottom line is congress can't empower one for profit corporation to regulate another even if it's going to somehow make us whole at the end of the day it's a separate constitutional violation the other problem we have even aside from the contract provision of course is the fact that we are also subject to penalties if we don't satisfy or we don't allow the amtrak trains running on our tracks to satisfy the metrics and standards if not why is that separate the contributions it is it is it's a it's a separate regulatory impact this is the provision that says i the amtrak trains don't satisfy the metrics and standards at amtrak's request they can bring in enforcement proceeding against us in the surface transportation board now alternately that determination we will look at  for example whether or not we have satisfied the preference requirement but the point is is that the government in order to get the penalties need to prove two things they need to prove a violation metrics and standards and they need to prove a violation of the preference requirement so as justice alito correctly if we comply with the metrics and standards we don't get dragged into an enforcement proceeding where we can get same should if we do comply with the metrics and standards we can't get dragged into an enforcement proceeding that's regulatory power