Union Pacific Railroad Company v. U.S. Railroad Retirement Board

United States Court of Appeals
For the Eighth Circuit
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No. 24-2547
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Union Pacific Railroad Company
lllllllllllllllllllllPlaintiff - Appellant
v.
U.S. Railroad Retirement Board
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: February 12, 2025
Filed: December 16, 2025
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Before LOKEN, BENTON, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
The Railroad Retirement Act of 1974 (“RRA”) provides long-term retirement,
disability, and survivor benefits to covered railroad employees and, in some cases,
their spouses and survivors, funded by a payroll tax on the railroads and their
employees. 45 U.S.C. § 231a(a)-(d); see BNSF Ry. Co. v. Loos, 586 U.S. 310, 313-
14 (2019). The Railroad Unemployment Insurance Act (“RUIA”) provides benefits
for short-term periods of unemployment and sickness, funded by employer

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contributions. 45 U.S.C. § 358(a)(1)(A)(i). The U.S. Railroad Retirement Board (the
“Board”), an independent executive branch agency, administers benefits under both
statutes. See Salinas v. U.S. R.R. Ret. Bd., 592 U.S. 188, 190 (2021). Pursuant to its
statutory authority to determine claims for benefits and make awards, see 45 U.S.C.
§§ 231f(b), 355(b)-(c), 362(l), the Board initiates investigative hearings and makes
initial determinations whether a person or entity is a covered employer or employee.
These proceedings are governed by its longstanding regulations. See 20 C.F.R. Parts
258 and 259. This authority includes the power to subpoena witnesses and require
testimony and to require production of evidence to aid the Board’s investigations. 45
U.S.C. §§ 231f(b), 362(a).
The Union Pacific Railroad Company (“UP”) is a covered railroad carrier
headquartered in Omaha, Nebraska. Its operations include “flagging,” a rail industry
term for providing protection for those working on or close to railroad tracks from the
hazard of being struck by a train or other on-track equipment. RailPros Field
Services, Inc. (“RailPros”) is an independent company that employs or contracts with
workers who perform “flagging” services for third parties that require access to UP’s
right of way for projects that do not concern UP’s own work or operations.
The Brotherhood of Maintenance of Way Employes Division of the
International Brotherhood of Teamsters (“BMWED”) is a union that represents some
UP employees but does not represent RailPros workers. In November 2017, the
BMWED submitted a request to the Board for a determination whether RailPros
flagging workers are covered under the RRA and the RUIA. The BMWED alleged
that UP and RailPros were replacing union-represented employees with RailPros
contract workers to perform flagging services for third parties having access to UP
facilities, which “created a business model . . . that essentially uses the payment of
age and service annuities under the [RRA] to subsidize the use of workers to displace
employees who otherwise would be paying into the Railroad Retirement system.”
After an investigation by the Board’s Office of General Counsel, in December 2021
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the Board requested UP’s responses to a set of questions regarding RailPros’ flagging
services. UP provided responses and cooperated with additional information
requests.
On April 14, 2023, the Board entered an Order (the “April 2023 Order”)
initiating a hearing to determine whether RailPros contract workers performing
flagging services are covered employees and designating the BMWED as a party
entitled to participate in the hearing (in addition to UP and RailPros). UP objected
to the Board’s designation of the BMWED as a party because the union would gain
access to confidential business information that UP places in an administrative record
that is accessible to the public. The Board’s hearing examiner responded that the
BMWED was designated as a party “to gather relevant evidence as permitted by
statute.” Because the union made the initial inquiry regarding the employee status of
RailPros workers performing flagging services, the hearing examiner explained, the
“inclusion of the BMWED as a party . . . is intended to obtain additional information
about those flagging services.” The hearing examiner agreed to consider UP’s
proposed protective order preventing the BMWED from accessing the railroad’s
confidential business information and offered an alternative protective order and non-
disclosure agreement (“NDA”). UP refused to sign the NDA, stating it would not
accept an outcome entitling the BMWED to participate as a party.
Having reached an impasse with the Board, UP brought this action seeking
judicial review of the April 2023 Order granting the BMWED party status. The
Amended Complaint alleges that the details of UP’s business arrangements with
RailPros and with third parties who access UP’s right of way to perform their own
work, and how RailPros workers performing flagging services are utilized by third
parties performing their own work on UP property, are “maintained as private and
confidential in the normal course of its business operations.” The BMWED “has
taken adversarial positions regarding contracted flagging services with UP and other
railroads . . . over the last decade,” the Amended Complaint alleges, and “has filed
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over 1,500 grievances on this topic” requiring UP to respond “at considerable
expense.” Giving the BMWED party status to the hearing “guarantee[s] that the
BMWED -- which has an adversarial relationship to UP -- will gain access to UP’s
confidential business information through the Board Hearing and related
proceedings.” Nothing in the Board’s governing statutes grants it authority to give
party status to the BMWED in this context. The April 23 Order is a final agency
action for purposes of judicial review under the APA, 5 U.S.C. § 704, and the Order
to grant the BMWED party status, “or otherwise gain access to UP confidential
business information,” is unlawful, arbitrary and capricious and an abuse of discretion
under the APA. See 5 U.S.C. § 706(2)(A).
Without deciding whether the April 23 Order is a final action under the APA,
the district court dismissed the complaint for lack of subject matter jurisdiction.
Applying the three Thunder Basin factors, the court concluded that it lacked
jurisdiction because the statutory judicial review provisions in the RRA and the RUIA
extend to the April 2023 Order and provide for exclusive judicial review in an
appropriate court of appeals. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
212-13 (1994). This appeal followed. “We review de novo the grant of a motion to
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).” Hastings v.
Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008) (quotation omitted).
I. Judicial Review of Board Decisions
Chapter 7 of the APA makes judicial review available for “final agency action
for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. “[U]nless
Congress expressly says otherwise, APA review takes place first in the federal district
courts, not the courts of appeals.” Rodriguez v. Penrod, 857 F.3d 902, 906 (D.C. Cir.
2017). “District courts may ordinarily hear those challenges by way of 28 U.S.C.
§ 1331’s grant of jurisdiction for claims ‘arising under’ federal law.” Axon Enter.,
Inc. v. FTC, 598 U.S. 175, 185 (2023). “The APA ‘evinces Congress’ intention and
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understanding that judicial review should be widely available to challenge the actions
of federal administrative officials.’” Hawkes Co. v. U.S. Army Corps of Eng’rs,
782 F.3d 994, 999 (8th Cir. 2015) (quotation omitted).
That is the normal default rule. Congress may substitute an alternative review
procedure -- what is commonly called a special statutory review scheme -- such as
exclusive review in one or more designated courts of appeals. In both the RUIA and
the RRA, Congress created a special statutory review scheme: judicial review of final
Board decisions in the courts of appeals rather than in the district courts. But does
that special statutory review scheme apply to the Board’s April 23 Order?
In Thunder Basin, a surface coal mining company filed a suit in district court
seeking pre-enforcement injunctive relief against the Secretary of Labor’s authority
to compel immediate compliance with Mine Safety Act provisions in a proceeding
that included the threat of mandatory civil penalties. 510 U.S. at 202-06. The Court
held that prior cases have upheld allocating initial review to an administrative agency
and delaying judicial review until final agency action “where such intent is fairly
discernable in the statutory scheme.” Id. at 207. In Axon, a case that involved
challenges to SEC and FTC agency enforcement proceedings, the Court noted a
caveat that is the core issue on this appeal:
But a statutory review scheme of that kind does not necessarily extend
to every claim concerning agency action. Our decision in Thunder
Basin makes that point clear. After finding that Congress’s creation of
a “comprehensive review process” like the ones here ousted district
courts of jurisdiction, the Court asked another question: whether the
particular claims brought were “of the type Congress intended to be
reviewed within this statutory structure.” The Court identified three
considerations designed to aid in that inquiry, commonly known now as
the Thunder Basin factors. First, could precluding district court
jurisdiction “foreclose all meaningful judicial review” of the claim?
Next, is the claim “wholly collateral to [the] statute’s review
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provisions”? And last, is the claim “outside the agency’s expertise”?
When the answer to all three questions is yes, we presume that Congress
does not intend to limit jurisdiction [to the courts of appeals]. But the
same conclusion might follow if the factors point in different directions.
The ultimate question is how best to understand what Congress has done
-- whether the statutory review scheme, though exclusive where it
applies, reaches the claim in question.
Axon, 598 U.S. at 185-86 (internal citations omitted).
UP argues on appeal, as it did in district court, that the April 2023 Order
entered prior to the Board’s investigative hearing is not a “final decision” of the
Board on a claim for benefits that must be reviewed in an appropriate court of
appeals. Rather, it is an interim agency order that is a “final agency action for which
there is no other adequate remedy in a court” that can be reviewed by an appropriate
district court under § 704 of the APA. That is the important determination mandated
by Axon -- even if this interim agency order is a final agency action for purposes of
APA review, is it also “of the type Congress intended to be reviewed” within the RRA
and the RUIA special statutory review scheme mandating review in the court of
appeals? In our view, while Axon confirmed that the Thunder Basin factors are an
important aid in determining congressional intent, the threshold question is whether
the agency order at issue falls within the relevant statutory review scheme. This is a
serious issue of first impression in this Court, and there is little if any persuasive
authority elsewhere. It was ignored by the district court, which just held that the
Thunder Basin factors are all that matters.
The Board argues there is no relevant distinction in applying Thunder Basin
to pre-enforcement challenges to agency enforcement actions and to challenges to
interim agency orders unrelated to enforcement. It distinguishes Axon as simply
holding “that certain constitutional claims . . . did not fall within the relevant review
schemes which otherwise channeled claims to the courts of appeals.” But that
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argument fails to acknowledge the holding in Axon that “a statutory review scheme
of [the kind here at issue] does not necessarily extend to every claim concerning
agency action.” We give agency arguments that rewrite Supreme Court
interpretations of statutes or the Court’s prior decisions little if any weight or
credibility. See MikLin Enters., Inc. v. NLRB, 861 F.3d 812, 823 (8th Cir. 2017) (en
banc) (agency interpretation of Supreme Court precedent “is not entitled to judicial
deference”); cf. Loper Bright Ents. v. Raimondo, 603 U.S. 369, 388 (2024)
(discussing Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944)).
To determine the scope of the RRA and the RUIA special statutory review
provisions, we look to the text of both statutes, taking into account “both the specific
context in which language is used and the broader context of the statute as a whole.”
Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014) (cleaned up).
The RUIA provides that “[a]ny claimant . . . or any other party aggrieved by a
final decision . . . may . . . after all administrative remedies within the Board [are]
exhausted, obtain a review of any final decision of the Board by filing a petition for
review” in the Seventh Circuit, the D.C. Circuit, or “the United States court of
appeals for the circuit in which the claimant or other party resides.” 45 U.S.C.
§ 355(f).
The RRA judicial review provision, 45 U.S.C. § 231g, “makes judicial review
available . . . to the same extent that review is available under the RUIA.” Salinas,
592 U.S. at 190 (citations omitted). Section 355(f) channels “review of any final
decision of the Board.” The cross-referenced subsection, § 355(c), describes the
process for hearing and review of claims and refers repeatedly to “claim[s] for
benefits.” Section 355(b) authorizes and directs the Board to make decisions “as to
the right of any claimant to benefits” and to hold hearings, conduct investigations and
other proceedings, and to establish procedures “for the determination of a right to
benefits.” This focus on substantive benefits determinations is reiterated in the
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judicial review provision, which concludes by providing when “[a]n applicant for
review of a final decision of the Board concerning a claim for benefits” is liable for
costs. § 355(f).
Nevertheless, as the Board points out, the Supreme Court explained in Salinas
that Congress’ use of broad language allowing parties to “obtain a review of any final
decision of the Board” in § 355(f) indicates that “§ 355(f) encompasses decisions
beyond those described in § 355(c).” 592 U.S. at 198. The Court pointed to § 355(g),
which lists three types of Board decisions that are exclusively reviewable under
§ 355(f): findings of fact and legal conclusions on determinations of claims for
benefits or refunds, determinations of “any other matter” pursuant to § 355(c), and
determinations that certain unexpended funds may be used to pay benefits or refunds.
Salinas, 592 U.S. at 198. But those determinations are directly linked to a claim for
benefits already made. Thus, the context of the special statutory review scheme
reflects a focus on the Board’s ultimate benefits decisions. The RRA’s special
statutory review provision, 45 U.S.C. § 231g, “makes judicial review available under
the RRA to the same extent that review is available under the RUIA,” and therefore
reflects a similar focus on the review of substantive benefits decisions. Its reference
to “decisions” determining “rights or liabilities” is plainly a reference to benefits the
Board is tasked with administering.
In Salinas, the Court rejected the Board’s contention that its refusal to reopen
a prior denial of benefits is not subject to judicial review at all, which is not an issue
in this case. The Court noted that “any final decision” in § 355(f) “denotes some kind
of terminal event,” such as the term “final state of review” and similar language in the
APA. The ruling at issue in Salinas, the Board’s refusal to reopen a prior benefits
decision, was “the terminal event” in its benefits review process. Therefore, the
Board’s refusal to reopen was subject to judicial review in the court of appeals under
§ 355(f). 592 U.S. at 194.
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By contrast, here the issue is whether a party who will not be responsible for
any benefits contributions and does not represent the allegedly covered workers at
issue may be a fully participating party in a preliminary proceeding that is wholly
collateral to a future benefits determination. A preliminary determination of who will
participate in a Board hearing is not the kind of terminal event that marks the end of
the Board’s decision-making process on a claim for benefits.
For these reasons, we conclude that the text of the RRA and the RUIA special
statutory review provisions, read in context, does not answer the question Axon
requires us to decide -- whether the particular claims at issue here were “of the type
Congress intended to be reviewed within this statutory structure.” So we must look
elsewhere. Again, as in Axon, “[t]he ultimate question is how best to understand
what Congress has done.” 598 U.S. at 186. Though we disagree with the district
court’s conclusion that the three Thunder Basin factors are all that matters, we agree
they are highly relevant considerations, as they were in Axon.
The first factor is whether delaying review of the April 23 Order until the
Board decides the merits of the flagging workers’ coverage will result in the
“foreclosure of meaningful judicial review.” The district court said no because UP
may exhaust administrative remedies and obtain judicial review of the April Order by
a court of appeals after a final agency decision, which “would not come too late to be
meaningful.” This ignores a key aspect of UP’s claim. UP argues irreparable injury
to its business interests if the BMWED has unrestricted access to confidential
information UP places in a hearing record that is accessible to interested members of
the public, and the Board refused to limit the BMWED’s access or sufficiently restrict
its use of the information. That is clearly a cognizable APA claim in a district court
action to review an agency order if it is a final agency action under the APA even if
it is an interim agency order. If the Board “lets the cat out of the bag,” meaningful
judicial review is foreclosed. This factor supports UP’s position.
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The second factor is whether UP’s claim is “wholly collateral” to the special
statutory review provisions. The district court said no because UP does not object to
the Board’s power generally, only to the way the power is being “wielded,” and the
claim “concerns BMWED’s participation in an inquiry that [the Board] is clearly
authorized to make into the potential ‘coverage’ of Railpros workers.” But that has
nothing to do with the relevant inquiry under Axon -- whether the union’s
participation as a party in an initial hearing that some day may end in a coverage
decision is collateral to the ultimate benefits decisions that the special statutory
review scheme controls. UP does not object to the BMWED participating as a
witness, and the Board has ample authority to gather relevant evidence by means
other than granting the BMWED unlimited access to confidential information the
Board requires UP to place in the hearing record with little if any limitation on the
BMWED’s competitive use of that information. This factor supports UP’s position.
The third factor is whether UP’s claim is “outside the agency’s expertise.” The
district court said no because the Board “knows a great deal about the policy of
railroad worker benefits coverage, and UP’s claim does not involve policies more
properly within the knowledge of the courts.” On appeal, the Board argues that UP’s
“claim is directed at matters where the Board is an expert -- determining which
entities should be considered parties to a hearing under the Board’s regulations.”
Whether the Board has manipulated its process to provide an unfair competitive
advantage to BMWED, an adverse partisan in this labor relations context, is an issue
on which the Board has no established expertise and may be a biased decision maker.
This is an APA claim that has nothing to do with the purpose of the special statutory
review provisions at issue. If the April 23 Order was a final agency action under the
APA, its immediate review belongs in the district court.
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II. The APA Final Agency Action Issue.
UP’s Amended Complaint alleges that the Board’s April 2023 Order will injure
UP by causing disclosure of confidential business information to the BMWED, an
adverse party in their labor dealings; that the April 23 Order is subject to judicial
review in the district court under the APA, 5 U.S.C. § 704; and that the Order
granting the BMWED party status is agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law” that the reviewing court
“shall . . . hold unlawful and set aside.” 5 U.S.C. § 706(2)(A). When there is no
other basis for immediate judicial review of an interlocutory agency order, as here,
jurisdiction is limited to the APA, which provides for review of a “final agency action
for which there is no other adequate remedy in a court.” Sierra Club v. U.S. Army
Corps of Eng’rs, 446 F.3d 808, 813 (8th Cir. 2006).
It is well established that the party seeking APA review must satisfy two
conditions for the challenged agency action to be considered “final.” First, the action
must mark the consummation of the agency’s decision-making process and not be
merely tentative or interlocutory in nature. “Second, the action must be one by which
rights or obligations have been determined, or from which legal consequences will
flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (cleaned up). To satisfy this
second condition, the agency action “must inflict some legal injury upon the party
seeking judicial review,” either compelling affirmative action or prohibiting
otherwise lawful action. Sisseton-Wahpeton Oyate of Lake Traverse Rsrv. v. U.S.
Corps of Eng’rs, 888 F.3d 906, 915 (8th Cir. 2018).
In Hawkes, we held that the U.S. Army Corps of Engineers’ “jurisdictional
determination” that certain wetland property was subject to permitting requirements
under the Clean Water Act was a final agency action under the APA, despite the fact
that this determination was preliminary to the final permitting decision. 782 F.3d at
996-97. The Supreme Court affirmed, concluding that this determination made after
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extensive factfinding satisfied both Bennett conditions. Hawkes, 578 U.S. at 598
(quotation omitted). When an agency “has issued a definitive statement of its
position, determining the rights and obligations of the parties, that action is final for
purposes of judicial review despite the possibility of further proceedings in the
agency to resolve subsidiary issues.” Sierra Club, 446 F.3d at 813.
Here, we conclude both Bennett conditions are satisfied. First, the April 2023
Order marks the consummation of the Board’s decision-making process on the
threshold issue of who will participate as parties in the hearing to determine whether
workers who perform railroad flagging services on UP’s property and are employees
or independent contractors of RailPros, which is not a covered employer, are
nonetheless employees covered by the RRA and the RUIA. Party status means the
BMWED has the right to participate fully, including the rights to examine and cross-
examine witnesses and fully access the record, including UP’s confidential business
information. The Board conceded finality for purposes of its motion to dismiss.
If immediate judicial review is not available, UP will be in a situation like the
mining company appellant in Hawkes -- participate in the hearing process and place
its confidential business information in the record, giving the BMWED unrestricted
access UP claims is improper, or take a “violate-and-defend” approach by refusing
to submit confidential information requested by the Board and then challenging the
inclusion of the BMWED as a party after the Board has made a final coverage ruling.
“Absent immediate judicial review,” we concluded in Hawkes, “such treatment is
unthinkable” given “the impracticality of otherwise obtaining review [and] the
draconian penalties imposed.” 782 F.3d at 1002 (cleaned up), quoting Sackett v.
EPA, 566 U.S. 120, 132 (Alito, J., concurring).
Second, the April 2023 Order determined legal rights and obligations. The
Supreme Court “has consistently taken a ‘pragmatic’ and ‘flexible’ approach to the
question of finality.” Hawkes, 782 F.3d at 997 n.1, quoting Abbott Labs v. Gardner,
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387 U.S. 136, 149-50 (1967). “Bennett prong-two determinations [are] based on the
concrete consequences an agency action has or does not have as a result of the
specific statutes and regulations that govern it.” Cal. Cmtys. Against Toxics v. EPA,
934 F.3d 627, 637 (D.C. Cir. 2019). The BMWED’s designation as a party means it
will have unrestricted access to confidential business information that UP is required
to place in the record, when UP and the BMWED have extensive legal adversity on
the same subject matter -- flagging services performed by RailPros workers for third
parties with access to UP property.
We have found agency decisions non-final when they had no such
consequences for the party seeking immediate judicial review. For example, in
Sisseton-Wahpeton, the Army Corps of Engineers responded to a complaint that a
construction permit be removed with a letter stating that its prior permitting and
exemption decisions were valid and the owner’s use of the land continued to be for
permissible agricultural purposes. 888 F.3d at 909-12. We held that the letter was
not a final agency action because it neither affected legal rights nor inflicted new
injury on the complainant. Rather, the Corps “merely stated how it had applied the
law at the time it issued the permit and exemption determinations.” Id. at 915.
The Board argues that decisions allowing parties to participate in an
administrative proceeding, like the April 2023 Order, do not amount to final agency
action, relying on FTC v. Standard Oil Co. of California, 449 U.S. 232, 242 (1980)
(a party’s “burden of responding to the charges made against it . . . is different in kind
and legal effect from the burdens attending what heretofore has been considered to
be final agency action”), and Arch Coal, Inc. v. Acosta, 888 F.3d 493, 503 (D.C. Cir.
2018) (“It is firmly established that agency action is not final merely because it has
the effect of requiring a party to participate in an agency proceeding.”) (quotation
omitted). However, unlike the parties seeking immediate judicial review in those
cases, UP is not challenging its own required participation in the coverage
determination hearing, nor does it contest the Board’s authority to conduct the
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hearing and make an ultimate determination. Instead, separate from the merits of that
decision, UP contests only the unrestricted participation of a third party, the
BMWED, that is not a covered party.
This is not, as the Board argues, “an impermissible attempt to make an ‘end
run’ around the statutory scheme . . . [that] would allow the plaintiff to short-circuit
the administrative review process and the development of a detailed factual record by
the agency.” Great Plains Coop v. CFTC, 205 F.3d 353, 355 (8th Cir. 2000). UP
seeks immediate judicial review of an interlocutory agency order that is the
culmination of the agency’s decision-making process on an issue that determined
legal rights and obligations with adverse concrete consequences on UP, the party
seeking immediate judicial review. Applying Hawkes, Bennett v. Spear, and Sackett,
we conclude the April 2023 Order is a final agency action under the APA. As the
Order is not immediately reviewable in a court of appeals under the special judicial
review provisions of the RRA or the RUIA, it is a “final agency action for which
there is no other adequate remedy in a court,” 5 U.S.C. § 704, that is subject to
immediate judicial review by an APA action filed in the district court.
The judgment of the district court dismissing this case for lack of subject matter
jurisdiction is reversed and the case is remanded for further proceedings not
inconsistent with this opinion.
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