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Edwin Kessler and James Riffin v. Surface Transportation Board and United States of America

March 15, 2011

EDWIN KESSLER AND JAMES RIFFIN,
PETITIONERS
v.
SURFACE TRANSPORTATION BOARD AND UNITED STATES OF AMERICA, RESPONDENTS BNSF RAILWAY COMPANY,
INTERVENOR



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

The opinion of the court was delivered by: Ginsburg, Circuit Judge:

Argued September 20, 2010

Before: GINSBURG, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Edwin Kessler and James Riffin petition for review of an order of the Surface Transportation Board (STB) denying them preliminary injunctive relief. We dismiss their petition because we lack jurisdiction to decide all but one of the claims presented and the petitioners have failed to exhaust their administrative remedies as to that claim.

I. Background

In July 2008 Kessler contracted with BNSF Railway Co. to have a locomotive he leased from Riffin transported and delivered to himself, "care of Boardman, Inc.," a company in Oklahoma City with property abutting his own. After taking possession of the locomotive BNSF found Boardman would not accept delivery of the locomotive and so informed Kessler. When the parties failed to agree upon a suitable alternative arrangement for delivery, BNSF notified Kessler it was going to sell the locomotive at auction, as provided in the bill of lading, if he did not himself make arrangements to dispose of it.

 Despite Riffin's admission at oral argument that the locomotive belongs to him, because both parties' filings refer to the locomotive as belonging to Kessler instead of Riffin, and because Kessler is the named party in the proceedings in front of the STB, we refer to Kessler as the singular owner of the locomotive.

Kessler then asked the STB for an injunction to stop the sale of the locomotive and to compel BNSF to complete delivery. Kessler also asked the STB to order BNSF to pay him damages of $50.00 for each day delivery was delayed and to relieve him of any obligation to pay demurrage fees. That motion was filed on January 26, 2009 and was duly opposed by BNSF.

The STB had not yet ruled upon Kessler's motion when, on May 18 of that year, BNSF notified the STB it planned to begin the auction of Kessler's locomotive in one week. On June 2 Kessler filed with the STB an emergency request for immediate relief, but on June 8 he moved voluntarily to dismiss both motions pending with the Board so that he might instead pursue relief in court. Later that day Kessler filed a motion for a temporary restraining order and a preliminary injunction in the U.S. District Court for the District of Maryland. Riffin v. BNSF Ry., No. 8:09-cv-1502.

On June 12 the Board denied Kessler's motion to dismiss and resolved on the merits his motions for injunctive relief. See Edwin KesslerPetition for Injunctive Relief, STB Dkt No. FD-35206 [hereinafter STB Decision]. The STB held Kessler did not show the auction would irreparably harm him because, contrary to Kessler's representation, the locomotive was easily replaceable. Id. at 5. The Board also held an injunction would not be in the public interest: Although BNSF had a general duty as a common carrier to serve all comers, Kessler had not shown how the public would benefit from enjoining the sale of a locomotive that was shipped not for any commercial purpose "but simply to 'test' BNSF." Id.  For any of the parties' filings or the STB's decisions, see http://www.stb.dot.gov. at 6. The Board accordingly denied Kessler's motion to enjoin the auction. Id. The Board also refused to compel BNSF to deliver the locomotive; because the "true nature of [Kessler's] dispute" with BNSF was unclear, the Board held Kessler failed to show he would likely prevail upon his claim BNSF violated its common law duties. Id. With respect to Kessler's requests for relief from demurrage and other fees, and for $50.00 in damages for each day delivery was delayed, the Board held, respectively, that the record provided no basis for enjoining BNSF from the collection of those charges and that claims for monetary damages are properly raised in a complaint proceeding and not as a part of a motion for injunctive relief. Id. at 7.

Shortly after the Board issued its order, BNSF sold Kessler's locomotive at public auction for $5,000. The Maryland district court then denied as moot (among other defects) Kessler's pending motion for a TRO and dismissed his claim without prejudice.

In this court Kessler seeks review of the Board's order denying him injunctive and other relief. He argues the Board's decision is both incorrect on the merits and procedurally infirm. The Board responds that we should dismiss Kessler's petition for review because his petition asking the Board for injunctive relief is now moot and because, as to other relief, he has failed to exhaust his ...


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