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Norfolk Southern Railway Co. v. Pennsylvania Public Utility Commission

March 24, 2010

NORFOLK SOUTHERN RAILWAY COMPANY, PLAINTIFF,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Bissoon*fn1

MEMORANDUM AND ORDER

I. MEMORANDUM

For the reasons stated below, Defendants‟ Motion to Dismiss (Doc. 14) will be denied. The parties are familiar with the facts and legal claims in this case, so the Court will limit its discussions accordingly.

A. Exhaustion of Administrative Remedies

Defendants seek dismissal because Plaintiff allegedly failed to exhaust administrative remedies available through the Pennsylvania Public Utility Commission ("the PUC").

See generally Defs.‟ Br. (Doc. 15) at un-numbered pgs. 5-9. Defendants‟ citations to legal authority are sparse, and Defendants do not specify the source of the alleged exhaustion requirement. See id.

Under the circumstances, the Court must presume that Defendants seek to invoke "prudential exhaustion." See generally Wilson v. MVM, Inc., 475 F.3d 166, 174 (3d Cir. 2007) (prudential exhaustion is "[a] judicially created [doctrine], aimed at respecting agency autonomy") (citation omitted). "Because of its nature, prudential exhaustion can be bypassed under certain circumstances, including waiver, estoppel, tolling or futility," see id. (citations omitted), and "the decision of whether to require exhaustion is a matter of sound judicial discretion." Northern Michigan Hosp., Inc. v. Health Net Fed‟l Serv., LLC, 2009 WL 2869149, *5 (3d Cir. Sept. 8, 2009) (citation to quoted, binding authority omitted).

In exercising its discretion, the Court considers whether: (1) exhaustion would promote administrative efficiency by preventing premature interference with the agency‟s processes; (2) exhaustion would promote executive autonomy by allowing the agency to correct its own errors; (3) judicial review would be facilitated through enjoyment of the agency‟s experience and expertise; and (4) judicial economy would be served by having the agency, rather than the Court, compile a factual record.

See Wilson 475 F.3d at 173 (citation to quoted source omitted).

Defendants have failed to convince the Court that these factors require exhaustion.

As to (1) and (2), Plaintiff seeks a judicial declaration that an order issued by the PUC in 1973 ("the 1973 order") has been preempted by regulations promulgated under the Federal Railroad Safety Act ("the FRSA") in June, 2008. See generally Am. Compl. (Doc. 3) at ¶¶ 50-59.

When this lawsuit was filed, there were no existing "agency processes" with which to interfere. Rather, the PUC, "on its own motion," issued a "[r]econsideration [o]rder" on November 6, 2009 (134 days after the filing of Plaintiff‟s original Complaint), questioning the continuing validity of the 1973 order. See generally Defs.‟ Br. at un-numbered pg. 3.

At this juncture, the Court agrees with Plaintiff that its lawsuit has not been shown to "premature[ly] interfere[]" with agency processes. See Pl.‟s Opp‟n Br. (Doc. 17) at 7-8 (arguing that 1973 order was "a final order," whose operation did not require further administrative proceedings). To the contrary, it seems fairly obvious that the PUC invoked its administrative mechanisms in response to Plaintiff‟s action in federal court, presumably seeking to control the forum and format of the adjudicative process. Efforts to manipulate the scope of federal courts‟ review are met with suspicion, however,*fn2 and factors (1) and (2) in Wilson have not been shown to compel exhaustion.*fn3

Turning to factors (3) and (4), the Court is unpersuaded that the PUC‟s experience, expertise and/or fact-gathering capabilities militate in favor of exhaustion. Although Defendants have steered clear of arguments for judicial abstention, there are clear parallels between this case and decisions addressing the doctrine of "primary jurisdiction." See generally Boyes v. Shell Oil Prods. ...


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