United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2024 Decided July 26, 2024

No. 23-1126

IN RE: WESTERN COAL TRAFFIC LEAGUE,

PETITIONER

On Petition for a Writ of Mandamus 

to the Surface Transportation Board

Andrew B. Kolesar III argued the cause for petitioner. On 

the petition for a writ of mandamus and reply were William L. 

Slover and John H. LeSeur.

Thomas A. Quinn, Attorney, Surface Transportation 

Board, argued the cause for respondent. With him on the 

opposition to the petition for writ of mandamus were Craig M. 

Keats, General Counsel, and Anika S. Cooper, Deputy General 

Counsel.

Before: WILKINS and CHILDS, Circuit Judges, and 

ROGERS, Senior Circuit Judge.

Opinion for the court by Senior Circuit Judge ROGERS.
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ROGERS, Senior Circuit Judge: The Surface 

Transportation Board is to ensure “reasonableness” of freight 

rail shipping rates, and in so doing address whether a railroad 

is “revenue adequate.” 49 U.S.C. §§ 10701(d)(1), 

10704(a)(2)–(3). In April 2014, the Board opened an 

informational docket to obtain public comment on how the 

Board calculates and applies this concept in shipping rate cases.

Notice, STB Dkt. EP 722, R.R. Revenue Adequacy (Apr. 1, 

2014) (“Revenue Adequacy”) at 1. Over the next six years, the 

Board collected information through written comments and 

public hearings. During the following two years, the Board 

received further information by these means on a task force 

report with policy recommendations. Although the Board has 

addressed revenue adequacy in other rulemaking dockets and 

in rate case adjudications, it has not issued a decision in the 

Revenue Adequacy proceeding since receiving comments in 

February 2020.

Petitioner Western Coal Traffic League, a coalition of coal 

shippers, submitted comments and participated in the Board’s 

hearings advocating modifications to the Board’s framework 

for calculating and applying the revenue adequacy concept in 

rate cases. Despairing of what it characterizes as the Board’s 

unreasonable delay in responding to shippers’ proposals, the 

League petitions for a writ of mandamus compelling the Board, 

within 90 days, to publish either a notice of proposed 

rulemaking on revenue adequacy or “serve a final decision in 

[the] Revenue Adequacy . . . [docket] explaining why it is 

discontinuing the proceeding.” Pet. at 2–4. Although the court 

may grant mandamus pursuant to the All Writs Act, 28 U.S.C. 

§ 1651(a), to compel agency action that the court would 

ultimately have jurisdiction to review, the Board’s 

management of its Revenue Adequacy docket is not such 

agency action. The Hobbs Act, 28 U.S.C. § 2342(5), 

authorizes judicial review of the Board’s “final orders,” which 
3

the Revenue Adequacy proceeding is not. The Board convened 

the proceeding solely to gather public comment on certain

ratemaking issues, without any statutory duty or stated plans to 

undertake a rulemaking or specific regulatory action. The court 

therefore dismisses the League’s petition for mandamus for 

lack of jurisdiction. 

I.

In vesting the Surface Transportation Board with the 

authority to regulate interstate rail transportation, 49 U.S.C. 

§ 10501, Congress has required the Board to ensure the 

reasonableness of railroad freight shipping rates for “captive 

traffic” on routes where a particular railroad has “market 

dominance.” See id. §§ 10707, 10701(d)(1). To evaluate the 

reasonableness of captive traffic rates, the Board applies a 

three-factor test adopted by the Interstate Commerce 

Commission. See CF Indus., Inc. v. Surface Transp. Bd., 255 

F.3d 816, 827 (D.C. Cir. 2001) (citing Coal Rate Guidelines, 

Nationwide, 1 I.C.C.2d 520, 535 (1985)). 

The first factor is whether the railroad is “revenue 

adequate.” Congress directed that “rail carriers shall earn 

adequate revenues,” 49 U.S.C. § 10701(d); id. § 10101(3), (6), 

and that the Board “maintain and revise as necessary” a 

methodology for assessing which railroads are revenue 

adequate. Id. § 10704(a)(2)–(3). In rate cases, the Board 

examines a railroad on a “system-wide basis to determine the 

revenue[] it needs to ‘provide a rate of return on net investment 

equal to the current cost of capital (i.e., the level of return 

available on alternative investments).’” CF Indus., 255 F.3d at 

827 (quoting Coal Rate Guidelines, 1 I.C.C.2d at 535). If a 

“carrier is revenue adequate,” the Board considers whether “a 

complaining shipper may be entitled to rate relief.” W. Tex. 

Utils. Co. v. Burlington N. R.R., 1 S.T.B. 638, 655 (1996).
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In April 2014, the Board issued a Notice of Proceeding to 

“explore the Board’s methodology for determining railroad 

revenue adequacy, as well as the revenue adequacy component 

used in judging the reasonableness of rail freight rates.” 

Revenue Adequacy at 1. Explaining that in recent years 

“questions have been raised regarding the agency’s 

methodology for determining revenue adequacy,” the Board 

“intended [the Revenue Adequacy proceeding] as a public 

forum to discuss” these topics “with a view to what, if any, 

changes the Board can and should consider.” Id. at 4. The 

Notice listed questions on which the Board sought comment.

It also discussed a related docket on a rulemaking proposed by 

the Western Coal Traffic League addressing “how [the Board] 

determines the railroad industry’s cost of equity capital,” which 

is “a component of the methodology that the Board uses to 

determine revenue adequacy.” Id. The Board invited 

comments on both dockets in advance of a public hearing. Id.

at 5. In July 2015, the Board held a two-day hearing on both 

dockets, and in August 2015, the Board closed the Revenue 

Adequacy record after accepting reply comments. 

The Board thereafter established a rate reform task force 

(“RRTF”) with the “objectives of developing 

recommendations to reform and streamline the Board’s rate 

review process for large cases, and determining how to best 

provide a rate review process for smaller cases.” Notice (Sept. 

12, 2019) at 2. In March 2018, the Board announced that in 

order to obtain “stakeholder input” relevant to the RRTF’s work, 

it would permit “informal discussions [with] . . . stakeholders 

related” to Revenue Adequacy. Decision (Mar. 28, 2018) at 1. It 

also advised that “no rulemaking has been initiated” and it “has 

not determined the next action it will take relating to this 

proceeding,” describing Revenue Adequacy as a “pre-rule 

informational and hearing docket.” Id.
5

The RRTF Report of April 25, 2019, was posted on the 

Board’s website for comment. The RRTF’s recommendations 

included rulemakings on (1) the Board’s revenue adequacy 

methodology, focusing it on providing a long-term rather than 

snapshot picture of a railroad’s financial performance, and (2) 

shipper rate remedies where a railroad is revenue adequate, 

moving away from a fixed rate cap and towards a flexible 

metric aimed at carrier revenue surplus. RRTF Report (Apr. 

25, 2019) at 33, 35–41. In September 2019, the Board 

announced another public hearing, inviting public comment 

and noting four recommendations in the RRTF Report. Notice 

(Sept. 12, 2019) at 2–3. Reply comments were due in February 

2020.

The League filed comments with the Board in 2014 and 

2019 and participated in both sets of public hearings. The 

League advocated changes to the Board’s revenue adequacy 

methodology and its application in rate cases to better reflect 

recent growth in stable profitability for the primary national 

railroads. In particular, the League urged the Board to change 

how it calculates the necessary return on investment for a 

railroad to be revenue adequate and to abandon its longstanding 

focus on “cost of capital.” League Statement (Sept. 5, 2014) at 

10–11, 20–21. It urged as well that any rate increases by 

revenue adequate railroads under its new proposed 

methodology should be subject to a presumption of 

unreasonableness in rate cases. Id. at 30–33. Commenting on 

the RRTF Report, the League advocated the same proposals, 

stating its approach was simpler and in greater harmony with 

the statutory framework than the RRTF’s recommendations. 

League Statement (Nov. 26, 2019) at 18–19. In August 2022, 

the League filed a “petition for administrative action” by the 

Board to advance the proceedings to the rulemaking stage. 
6

In May 2023, the League filed a petition for a writ of 

mandamus compelling the Board to publish a notice of 

proposed rulemaking within 90 days of issuance of the writ, 

and to take final action in the Revenue Adequacy proceeding 

within one year, or to serve a final decision on issuance of the 

writ explaining why it is discontinuing the proceeding. Pet. at 

4. Relying on the Administrative Procedure Act, 5 U.S.C. § 

551 et seq. (“APA”), the League argues that mandamus is 

warranted because the Board’s “inaction” in “addressing the 

merits” of shipper comments on the Revenue Adequacy docket 

is “clearly unreasonable.” Pet. at 2 (citing Telecomms. Rsch. 

& Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984)

(“TRAC”)), 16 n.9, 21. In the League’s view, if “the Board 

intends to deny these requests,” the APA obligates the Board

to provide “‘prompt notice’ of its denial in a judicially 

reviewable final decision explaining its actions.” Id. at 18–19 

(discussing 5 U.S.C. § 555(b), (e)). 

II.

Mandamus is an “extraordinary remedy,” reserved “only 

for the most transparent violations of a clear duty to act.” In re 

Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000). 

When a party requests mandamus against a federal agency 

under the All Writs Act, 28 U.S.C. § 1651(a), see Pet. at 2, the 

court undertakes a three-step inquiry. In re Nat’l Nurses 

United, 47 F.4th 746, 752 (D.C. Cir. 2022). First, the court 

must ensure its own jurisdiction by “considering whether 

issuing the writ would protect . . . current or prospective 

jurisdiction.” Id. Second, if it has jurisdiction, the court asks 

“whether the agency has a crystal-clear legal duty to act.” Id. 

Third, even if an agency has breached a clear duty to act, the 

court will consider “whether judicial intervention would be 

appropriate” as mandamus is a “drastic remedy reserved for 

extraordinary circumstances.” Id. 752–53 (citing, inter alia,
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Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004)). This

court’s inquiry ends at the first step because the court has no 

current or prospective jurisdiction that the writ sought by the 

League would aid or protect. See Moms Against Mercury v. 

FDA, 483 F.3d 824, 827–28 (D.C. Cir. 2007). 

The All Writs Act “does not grant jurisdiction” to the court 

and “authorizes the issuance of a writ of mandamus in aid of 

jurisdiction [the] court already has or will have as a result of 

issuing the writ.” In re Nat’l Nurses, 47 F.4th at 752 (citing In 

re Tennant, 359 F.3d 523, 527–28 (D.C. Cir. 2004)). The court 

can issue a writ of mandamus to compel agency action 

unreasonably delayed, as sought here, where the court’s power 

stems from its “interest in protecting its future jurisdiction.” 

Moms Against Mercury, 483 F.3d at 827 (citing TRAC, 750 

F.2d at 75). That interest does not “arise if the final agency 

action” to be compelled is not ultimately reviewable by the 

court. Id.

The Hobbs Act authorizes the court to review the Board’s 

“rules, regulations, or final orders.” 28 U.S.C. § 2342(5). 

Agency action is “final” when it (1) is not “tentative,” marking 

“the consummation of the agency’s decisionmaking process,” 

and (2) either determines “rights or obligations” or brings about 

“legal consequences.” Bennett v. Spear, 520 U.S. 154, 177–78 

(1997) (internal citations and quotations omitted). The Board 

“inaction” about which the League complains neither 

represents a non-tentative conclusion nor brings about legal 

consequences. 

The League interprets the Revenue Adequacy proceeding 

as intended to produce a rulemaking or other agency 

conclusion about reforms to the revenue adequacy constraint. 

It views the Board’s lack of further comment on the docket as 

an implicit “final” decision on the proposals made by 
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commenters. Pet. Reply Br. at 4. Similarly, the League views 

the Board’s failure to respond to shipper comments as 

tantamount to a final Board decision “not to institute 

[rulemaking] proceedings.” Id. Neither view has record 

support. The League points to no statement by the Board that 

it intended to use the Revenue Adequacy proceeding as a 

vehicle to take final action “bind[ing] either itself or regulated 

parties,” Kennecott Utah Copper Corp. v. U.S. Dep’t of 

Interior, 88 F.3d 1191, 1223 (D.C. Cir. 1996). 

In establishing the Revenue Adequacy docket, the Board 

described its purpose was to collect public input, convening a 

“public forum to discuss” and “explore” revenue adequacy 

topics “with a view to what, if any, changes the Board can and 

should consider.” Revenue Adequacy at 4. The 2014 Notice 

contemplated a possibility of future action by the Board in a 

separate proceeding but made no commitment. Instead the 

Board repeatedly stated that it was seeking input on a range of 

issues related to revenue adequacy — a multi-faceted issue of 

both analytical methodology and ratemaking policy discretion. 

The March 2018 Decision confirmed that the Revenue

Adequacy proceeding was a “pre-rule informational and 

hearing docket,” noting as well that “no rulemaking has been 

initiated” and that the Board “has not determined the next 

action it will take relating to this proceeding.” Decision (Mar. 

28, 2018) at 1. The Board continued throughout this period to 

address related matters in other proceedings, like the 

rulemaking docket discussed in the April 2014 Notice.

The remaining record confirms this understanding of the

purpose of the Revenue Adequacy proceeding. The Board did 

not file a notice or advance notice of proposed rulemaking to 

modify its basic revenue adequacy framework, as the League 

suggests, Pet. Reply Br. at 3–7, 9. The Board instead addressed

related issues in separate rulemakings and rate-making 
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adjudication proceedings, including rulemaking dockets and 

rate case adjudications.

1

The League’s argument by analogy to Fox Television 

Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir.), modified on 

reh’g, 293 F.3d 537 (D.C. Cir. 2002), is flawed. The League 

interprets the closing of the Revenue Adequacy docket to new 

comments without a rulemaking or closure decision as a final 

Board decision to retain its current revenue adequacy 

framework. Pet. Reply Br. at 4–6. But in Fox Television, the 

court concluded the decision to retain a slate of broadcast 

ownership rules was final agency action because Congress had 

required biennial review of its rules, publication of its

“determination” about whether they remained “necessary in the 

public interest,” 280 F.3d at 1033–34, 1037 (internal citations 

omitted), and to undertake a rulemaking to modify or repeal a 

rule found to be no longer necessary, id. at 1033–34. The court 

reasoned that the agency’s determination certain rules 

remained necessary was tantamount to a reviewable “decision 

not to initiate a rulemaking” that it would have been statutorily 

required to undertake had it reached a contrary conclusion 

about the rules’ continued necessity. Id. at 1038. 

Congress created a different regulatory framework for 

railroads and shippers. See Part I, supra. Indeed, the Board 

considers itself “free to forgo rulemaking in favor of ‘the caseby-case evolution of statutory standards’ via ‘individual, ad 

hoc litigation’ in rate cases under the revenue adequacy 

1

 See, e.g., Joint Pet. for Rulemaking to Establish a Voluntary Arb. 

Program for Small Rate Disps., EP 765 (STB served Dec. 19, 2022); 

Final Offer Rate Rev., EP 755 (STB served Dec. 19, 2022); Omaha 

Pub. Power Dist. v. Union Pac. R.R., NOR 42173 (STB served Oct. 

3, 2022); Mkt. Dominance Streamlined Approach, EP 756 (STB 

served Aug. 3, 2020); Revisions to the Cost-of-Capital Composite 

R.R. Criteria, EP 664 (STB served Oct. 25, 2017).
10

constraint.” Bd. Br. 25 (quoting SEC v. Chenery Corp., 332 

U.S. 194, 203 (1947)). The League identifies no support for a 

contrary interpretation that would mandate the Board forthwith 

to commence a rulemaking or close the Revenue Adequacy

proceeding. Absent such obligation, the Board’s decision 

whether to proceed by rulemaking is the type of discretionary 

decision where reliance on the APA is generally misplaced. 

To the extent the League relies on TRAC, 750 F.2d 70, to 

“compel agency action unlawfully withheld or unreasonably 

delayed,” 5 U.S.C. § 706(1), the court has jurisdiction to 

review such a section 706(1) claim “only where a [petitioner] 

asserts that an agency failed to take a discrete agency action 

that it is required to take.” Norton v. S. Utah Wilderness All., 

542 U.S. 55, 64 (2004) (emphasis in original). As described, 

the League has not demonstrated that the Board is required to 

take any specific action with respect to the Revenue Adequacy

docket. Accordingly, the TRAC claim fails.

After all, the League has the option, which it does not 

deny, cf. Pet. Reply Br. at 16–17, to file a petition for a 

rulemaking by the Board to reform the Revenue Adequacy

framework. Board regulations provide that any interested party 

may file a petition for rulemaking and the Board must respond 

within 120 days. See 49 C.F.R. § 1110.2. The League is not a 

stranger to filing rulemaking petitions with the Board. See, 

e.g., Pet. of W. Coal Traffic League for Rulemaking to Abolish 

Use of the Multi-Stage DCF Model in Determining R.R. 

Indus.’s Cost of Equity Capital, EP 664 (Sub-No. 2) (STB 

served Dec. 20, 2013) (cited in the 2014 Notice on Revenue 

Adequacy at 4 n.6). Absent an explanation why this remedy is 

unavailable, mandamus is reserved for the rare case where a 

party has no other available remedy to obtain the relief sought. 

In re Tennant, 359 F.3d at 529–30; see Cheney, 542 U.S. at 

380–81. 
11

Accordingly, the court dismisses the petition for 

mandamus for lack of jurisdiction.