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STATE OF ILLINOIS ILLINOIS COMMERCE COMMISSION
INTERNATIONAL ASSOCIATION OF ) SHEET METAL, AIR, RAIL, AND ) TRANSPORATION WORKERS, ) TRANSPORTATION DIVISION – ) ILLINOIS LEGISLATIVE BOARD; and ) BROTHERHOOD OF LOCOMOTIVE ) ENGINEERS AND TRAINMENT – ) ILLINOIS STATE LEGISLATIVE BOARD, ) Docket No. T20-0082 ) Complainants, ) ) UNIOIN PACIFIC RAILROAD COMPANY, ) ) Respondent. )
UNION PACIFIC’S MOTION TO DISMISS THE FIRST AMENDED FORMAL COMPLAINT AND REQUEST FOR DECLARATORY RELIEF
Union Pacific Railroad Company moves to dismiss in its entirety the First Amended
Formal Complaint and Request for Declaratory Relief of the International Association of Sheet
Metal, Air, Rail, and Transportation Workers Transportation Division – Illinois Legislative
Board, and Brotherhood of Locomotive Engineers and Trainmen – Illinois State Legislative
Board (collectively, the “Unions”), pursuant to Section 200.190(a) of the Illinois Commerce
Commission’s Rules of Practice, 83 Ill. Admin. Code § 200.190(a), and Section 2-619 of the
Code of Civil Procedure, 735 ILCS 5/2-619(a)(1), (9).
The Amended Complaint seeks relief based on the use of vehicles operated by
transportation network company drivers1 – specifically, vehicles operated by TNC drivers using
technology systems under license to Uber Technologies, Inc. – to transport Union Pacific
workers to and from work locations. (Amended Complaint, ¶¶ 6–8). In the case of Counts I and
II, the Amended Complaint fails to cure the substantive and jurisdictional defects that Union
1 See 625 ILCS 57/5 (defining “’Transportation network company driver’ or ‘TNC Driver’”).
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Pacific identified in the original Complaint. The new Counts III and IV defy the plain language
of Part 1550.10(d) by calling upon the Commission to prescribe new “higher safety standards” in
the context of a contested case and in a manner that conflicts with fundamental principles of
administrative and constitutional law. Union Pacific summarizes the changes to the Amended
Complaint below and outlines the legal defects that require dismissal.
First, the Amended Complaint alleges violations of the Commission’s Part 1550
regulations (Count I, ¶¶ 6–17), which the Unions assert “apply to any motor vehicle used to
transport railroad employees in the course of their employment, including specifically any
vehicle operated by Uber or an Uber driver.” (Id., ¶ 14). The only change to Count I in the
Amended Complaint was a new allegation that the use of vehicles operated by TNC drivers for
Union Pacific’s employees takes place “pursuant to a private contract or contracts between UP
and Uber governing the terms and conditions of transportation of UP’s railroad employees.” (Id.,
¶ 8). To ensure that the Commission has complete information to evaluate the viability of the
Amended Complaint, Union Pacific has attached to this motion a copy of the Dashboard Terms
and Conditions agreement (“Dashboard Contract”) between Uber and Union Pacific.2
The Amended Complaint again fails to state the scope of Part 1550 accurately by
omitting the express language exempting “taxicabs or other vehicles licensed by competent
authority to transport the public, and used by a railroad to transport its employees” from
regulation by the Commission. 92 Ill. Admin. Code 1550.10(b) (emphasis added). This
exemption – which has applied for decades to taxicabs and other vehicles licensed to transport
the public – precisely describes the vehicles used in “TNC services”3 and operated by TNC
drivers, which Union Pacific employees have begun using for on-the-job transportation. The
2 See “Affidavit of Maribeth Stock,” with Dashboard Contract, attached as Exhibit 1. 3 See 625 ICLS 57/5 (defining “’Transportation network company services’ or ‘TNC services’”).
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express exemption from regulation for these vehicles requires dismissal of the Amended
Complaint’s Part 1550 allegations.
To the extent the Unions ask the Commission in Count I to order Union Pacific “to cease
and desist from utilizing … Uber and/or Uber drivers, for the transportation of [Union Pacific’s]
employees” (Amended Complaint at 7–8), the relief sought is preempted by federal law.
Congress vested “exclusive” jurisdiction over the regulation of rail transportation with the
Surface Transportation Board under the ICC Termination Act of 1995 (“ICCTA”). 49 U.S.C.
§ 10501(b). While ICCTA does not displace all localized health and safety regulations, state
action that targets or discriminates against railroads is preempted. See Adrian & Blissfield R. Co.
v. Vill. of Blissfield, 550 F.3d 533, 541 (6th Cir. 2008) (“[A] state regulation ‘must address state
concerns generally, without targeting the railroad industry.’”) (quoting N. Y. Susquehanna & W.
Ry. Corp. v. Jackson, 500 F.3d 238, 254 (3d Cir. 2007). Here, the relief sought would impose
impermissible restrictions on Union Pacific’s use of TNC services, which would not apply to the
public or other employers, including Union Pacific’s competitors.
Second, the Commission should dismiss the remainder of Count I (at ¶¶ 18–22) and all of
Count II for lack of jurisdiction. Count II, as amended, contains new allegations seeking a
declaration that “each time UP uses or hires Uber or an Uber driver to transport its railroad
employees in the course of their employment, Uber and/or the Uber driver are subject to the
safety requirements established under [Part 1550].” (Amended Complaint at 10). The
Commission should deny this relief for the same reasons that require dismissal of the Amended
Complaint’s alleged violations of Part 1550. (See id., ¶¶ 6-17).
Otherwise, as with the original Complaint, the statutory provisions asserted as the basis
for Count II are either jurisdictional to other state agencies or would require the Commission to
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deem Uber and/or Uber drivers to be “contract carriers.” (Id., ¶ 19). The Illinois General
Assembly has prohibited any such construction in the Transportation Network Providers Act
(“TNPA”), which regulates the provision of TNC services in Illinois. See 625 ILCS 57/25(e)
(stating “TNCs or TNC drivers are not … contract carriers”) (emphasis added).4 The Unions’
alternative claims based on Union Pacific’s alleged general “duty to ensure that the vehicles used
to transport railroad employees comply with these contract carrier requirements” (Id., ¶¶ 20, 26)
or violation of the “spirit of these statues and regulations” (id., ¶ 27) have no foundation in law.
The Commission “is a creature of the legislature, deriv[ing] its power and authority solely from
the statute creating it, and its acts or orders which are beyond the purview of the statute are
void.” City of Chicago v. Illinois Com. Comm’n, 79 Ill. 2d 213, 217–18 (1980).
Third, the Amended Complaint’s new Counts III and IV seek alternative relief through a
misreading of Part 1550.10(d), under which the Unions ask the Commission to prescribe and
impose on Union Pacific “higher safety standards” for its use of TNC services and/or in response
to the COVID-19 pandemic. (Id., Counts III & IV). The plain language of Part 1550.10(d),
however, does not permit the Commission to convert this contested case into a rulemaking
proceeding applicable only to Union Pacific – nor could it. The Commission’s rules properly
distinguish between adjudicatory and quasi-legislative rulemaking. Compare 83 Ill. Admin.
Code § 200.170 (formal complaints), with § 200.210 (petitions for rulemaking). In this respect,
the Amended Complaint is not only inconsistent with basic principles of administrative law, it
invites constitutional error.
Finally, the Amended Complaint includes new allegations that, by utilizing TNC
services, Union Pacific is “exploiting a loophole in order to sidestep safety statues and
4 Uber is a TNC. See 625 ICLS 57/5 (defining “’Transportation network company’ or ‘TNC’”).
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regulations.” (Id., ¶ 38). The same kind of unsupported allegations remain from the original
Complaint. (See id., ¶ 28) (Union Pacific allegedly is “attempt[ing] to sidestep … safety statutes
and regulations by having its employees use Uber, rather than company-owned vehicles or
contract carriers.”). This position is both factually incorrect and based on a false premise. Union
Pacific always has had the option to use taxicabs or other vehicles licensed to transport the public
for its employees. Vehicles providing TNC services are the modern equivalent. See 625 ILCS
57/5.5 TNC services are separately regulated under the TNPA and that statute’s safety standards.
To suggest that the Illinois General Assembly did not consider safety in enabling the public and
businesses operating in Illinois, including Union Pacific, to connect to and utilize TNC services
is contrary to the plain language of the TNPA and common sense.
LEGAL STANDARD
Section 200.190(a) of the Commission’s Rules of Practice provides that “[m]otions may
be presented requesting … the dismissal of the proceeding for want of jurisdiction” or for “such
other relief or order as may be appropriate.” 83 Ill. Admin Code 200.190(a). Dismissal is proper
under Section 2-619(a)(1) of the Code of Civil Procedure if the tribunal “does not have
jurisdiction of the subject matter of the action.” 735 ILCS 5/2-619(a)(1). Dismissal is proper
under Section 2-619(a)(9) if “the claim asserted against defendant is barred by other affirmative
matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9). “Affirmative
matter ‘is something in the nature of a defense which negates the cause of action completely or
refutes crucial conclusions of law … contained in or inferred from the complaint.’” Chandler v.
Illinois Cent. R. Co., 207 Ill. 2d 331, 340, 343 (2003) (construing statute regarding railroad
5 TNC Services “means transportation of a passenger between points chosen by the passenger and prearranged with a TNC driver through the use of a TNC digital network or software application.” 625 ILCS 57/5.
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warning sign and affirming dismissal where “conclusive legal presumption” was affirmative
matter barring claim). Federal preemption is such an “affirmative matter.” Chicago Hous. Auth.
v. DeStefano & Partners, Ltd., 2015 IL App (1st) 142870, ¶¶ 14–15.
The Illinois General Assembly has granted the Commission “exclusive” jurisdiction over
“rail carrier operations within [Illinois], except to the extent that its jurisdiction is preempted” by
federal law. 625 ILCS 5/18c-7101. “The power and authority of the Commission comes strictly
from [its enabling statute], and the Commission cannot by its own actions extend its
jurisdiction.” Harrisonville Tel. Co. v. Illinois Com. Comm’n, 343 Ill. App. 3d 517, 523 (5th
Dist. 2003), aff’d, 212 Ill. 2d 237 (2004). “Furthermore, the Commission can only determine
facts and enact orders concerning the matters specified” in its enabling statute. Id. at 524 (citing
Lowden v. Illinois Commerce Comm’n, 376 Ill. 225, 230 (1941)).
ARGUMENT
I. THE CLAIMS IN COUNT I (¶¶ 6–17) ARE BARRED BY PART 1550(b) AND THE RELIEF SOUGHT IS PREEMPTED BY FEDERAL LAW
A. Part 1550(b) Exempts TNC Drivers’ Vehicles from Commission Regulation
The Amended Complaint cites to Part 1550 of the Commission’s Rules and alleges that
Union Pacific has “failed to comply with [these] minimum safety standards … and failed to
ensure that the motor vehicles used to transport its employees are safe and compliant.” (Id.,
¶ 16).6 The plain language of Part 1550, however, exempts TNC drivers’ vehicles from
Commission regulation, requiring dismissal of these claims.
6 The provisions of Part 1550 that Union Pacific is alleged to have violated include Part 1550.10(c) (safety orders), Part 1550.30 (rear compartments and seating), Part 1550.40 (inspections and testing), Part 1550.50 (safety equipment), and Part 1550.60 (vehicle operation). (Id., ¶ 13). The Amended Complaint misquotes Part 1550.10(c). The language here is correct: “All owners of such motor vehicles, and their duly appointed agents, and the drivers of such vehicles shall abide by all safety orders issued to them by the Commission.” (emphasis added).
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The Amended Complaint, like the original, fails to acknowledge Part 1550.10(b)’s
express exemption of certain vehicles from Commission regulation. Part 1550.10(b) specifies
that these regulations shall apply to motor vehicles “purchased, leased or otherwise acquired”
after the effective date and “used to transport employees.” 92 Ill. Admin. Code 1550.10(b). At
the same time, it expressly excludes “taxicabs or other vehicles licensed by competent authority
to transport the public, and used by a railroad to transport its employees” from regulation by the
Commission. 92 Ill. Admin. Code 1550.10(b) (emphasis added).
Commission authority under the Illinois Commercial Transportation Law (“ICTL”) is
limited to “activities specifically enumerated” in that statute. 625 ILCS 5/18c-1201. The Part
1550 regulations were authorized under the ICTL and the Commission’s authority to enforce
them is limited by their terms. See 625 ILCS 5/18c-1202(9). The terms used in Part 1550, unless
specifically defined, are to be interpreted “in the most commonly accepted sense.” 92 Ill. Admin.
Code 1550.10(f). They also should be interpreted in harmony with other law and to avoid
constitutional conflicts. Knolls Condo. Ass’n v. Harms, 202 Ill. 2d 450, 458–59 (2002) (“A court
presumes that the legislature intended” for statutes concerning the same subject to “be read
harmoniously so that no provisions are rendered inoperative.”); Villegas v. Bd. of Fire & Police
Comm’rs of Vill. of Downers Grove, 167 Ill. 2d 108, 124 (1995) (“[C]ourts are to interpret
statutes and ordinances … to avoid raising serious constitutional questions.”).
Here, the TNC drivers’ vehicles being used to transport Union Pacific’s employees are
not taxicabs7 but they are “other vehicles licensed by competent authority to transport the public,
and used by a railroad to transport its employees.” 92 Ill. Admin. Code § 1550.10(b). Put another
way, railroads always have had the option to use taxicabs or other vehicles licensed to transport
7 See 625 ILCS 57/5; 625 ILCS 57/25(e).
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the public for crew transportation under Part 1550.8 Such vehicles never have been subject to
regulation by the Commission – and neither should the TNC drivers’ vehicles being used for the
same purpose.
The Amended Complaint’s proposed reading of Part 1550 is incorrect, because it does
not give effect to Part 1550.10(b)’s express exemption. The Amended Complaint’s reading also
fails because it would create a conflict between Part 1550 and the TNPA, which separately
regulates TNC drivers’ vehicles and imposes its own safety standards. See 625 ILCS 57/25. In
addition, the Amended Complaint’s proposed interpretation would create an unavoidable conflict
with controlling federal law under ICCTA. 49 U.S.C. § 10501(b).
There also is no practical difference between the Uber service being used to transport
Union Pacific’s employees and the service available to the public – both of which are regulated
under the TNPA. Under the Dashboard Contract, d
d
d
d
d
d
d
8 The effective date for Part 1550 was Jan. 1, 1969. See
https://www.ilga.gov/commission/jcar/admincode/092/09201550sections.html.
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B. Any Order Barring Union Pacific from Using TNC Services to Transport Railroad Employees Is Preempted by Federal Law
The Amended Complaint asks the Commission to order Union Pacific under authority of
state law “to cease and desist from utilizing … Uber and/or Uber drivers, for the transportation
of [Union Pacific’s] employees.” (Id., at pp. 7–8, 9–10). The Commission does not have
authority to grant the relief sought because any such prohibition would be federally preempted
under ICCTA. See 49 U.S.C. § 10501(b).
Congress passed ICCTA in 1995 and created the Surface Transportation Board to
administer the Act. 49 U.S.C. §§ 10101, 10102(1). Under ICCTA, Congress expressly conferred
on the Board “exclusive” jurisdiction over the regulation of railroad transportation:
The jurisdiction of the Board over—
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.
49 U.S.C. § 10501(b). Congress defined “transportation” expansively to include “equipment of
any kind related to the movement of passengers or property, or both” and “services related to that
movement.” 49 U.S.C. § 10102(9). “Congress’s intent in the Act to preempt state and local
regulation of railroad transportation has been recognized as broad and sweeping.” Union Pac. R.
Co. v. Chicago Transit Auth., 647 F.3d 675, 678, n.1 (7th Cir. 2011).
ICCTA preempts state action in two ways: “(1) categorical, or per se, preemption, and
(2) ‘as applied’ preemption.” Id. at 679 (citing CSX Transp., Inc.—Petition for Declaratory
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Order, STB Finance Docket No. 34662, 2005 WL 1024490, at *2–3 (S.T.B. May 3, 2005)).
“Categorical preemption occurs when a state … action is preempted on its face despite its
context or rationale,” e.g., because the challenged action denies a railroad the ability to conduct
some part of its operations. Id.; see Wedemeyer v. CSX Transp., Inc., 850 F.3d 889, 894–95 (7th
Cir. 2017). “As-applied” preemption depends on “the degree of interference that the particular
action has on railroad transportation … [occurring] when the facts show that the action ‘would
have the effect of preventing or unreasonably interfering with railroad transportation.’” Chicago
Transit Auth., 647 F.3d at 679 (quoting CSX Transp., Inc., 2005 WL 1024490, at *3).
While ICCTA does not displace all generally applicable local health and safety
regulations, state action that targets or discriminates against railroads is preempted. See BNSF
Ry. Co. v. California Dep’t of Tax & Fee Admin., 904 F.3d 755, 761 (9th Cir. 2018) (preempting
hazardous materials fee that “target[ed]” the railroad industry); Adrian & Blissfield R. Co., 550
F.3d at 541–42 (finding against preemption where sidewalk program did not “require something
of the Railroad that it does not require of similarly situated entities”); see also Delaware v.
Surface Transp. Bd., 859 F.3d 16, 19 (D.C. Cir. 2017) (“This power to impose ‘rules of general
applicability,’ includes authority to issue and enforce regulations whose effect on railroads is
‘incidental,’ and which ‘address state concerns generally, without targeting the railroad
industry.’”) (internal citations omitted); Norfolk S. Ry Co. v. City of Alexandria, 608 F.3d 150,
160 (4th Cir. 2010) (“[T]he regulation must not (1) discriminate against rail carriers or
(2) unreasonably burden rail carriage.”); N. Y. Susquehanna, 500 F.3d at 253 (same).
Here, the relief sought under Part 1550 – to bar or impose special conditions on Union
Pacific’s use of TNC services – would trigger all three grounds for ICCTA preemption. Crew
transportation, as the Amended Complaint concedes, is an integral part of rail transportation. (Id.,
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¶ 6). The relief sought, thus, would be categorically preempted, because it would have the effect
of impermissibly managing or governing rail transportation. See Delaware, 859 F.3d at 22. The
relief sought also would be preempted as applied, because it would unreasonably interfere with
rail transportation by denying Union Pacific the ability to use Uber or the services of other TNCs
as an efficient alternative for employee transportation. Finally, the relief sought targets and
discriminates against railroads. By granting such relief, the Commission impermissibly would
impose restrictions on Union Pacific’s use of TNC services that are not placed on the public at
large or employers in other industries. Accordingly, the Amended Complaint’s claims at Count I,
¶¶ 6-17, should be dismissed.
II. THE COMMISSION LACKS JURISDICTION OVER THE CLAIMS IN COUNT I (¶¶ 18–22) AND COUNT II AND CANNOT ISSUE THE REQUESTED DECLARATORY RELIEF
A. The Commission Lacks Jurisdiction to Enforce Statutes Vested with Other State Agencies and to Impose “Contract Carrier” Requirements or Other Generalized Duties on TNC Services
The Amended Complaint cites to various provisions of the Illinois Vehicle Code9 and
alleges that “[e]ach time UP uses or hires Uber or an Uber driver to transport its railroad
employees in the course of their employment, Uber and/or the Uber driver is operating as a
contract carrier,” and is subject to these “and all other statutory and regulatory standards for
contract carriers transporting railroad employees.” (See id., ¶ 19). The Commission lacks
jurisdiction to adjudicate these claims.
Regarding alleged violations of Chapters 8 and 18b of the Vehicle Code, the Illinois
General Assembly has vested authority to enforce those statutes in agencies other than the
Commission – namely, the Secretary of State and the Department of Transportation. See 625
9 Amended Complaint, ¶ 18, referencing 625 ILCS 5/8-101(c) (proof of financial responsibility); 625 ILCS 5/13-101, 109 (safety testing); 625 ILCS 5/18b-106.1 (hours of service); and 625 ILCS 5/18c-7401 (first aid kits).
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ILCS 5/2-101 (“The Secretary of State is hereby vested with powers and duties and jurisdiction
of administering Chapters 2, 3, 4, 5, 6, 7, 8, and 9 of the Illinois Vehicle Code.”); 625 ILCS
5/18b-102 (the “Authority of Department [of Transportation]” includes the power to
“[a]dminister and enforce the provisions of this Chapter”). Likewise, the Chapter 13 safety
testing regime invoked by the Amended Complaint provides for the Department of
Transportation’s administration and enforcement, not the Commission’s. See, e.g., 625 ILCS
5/13-102 (mandating Department of Transportation tests and investigations), 13-105 (mandating
regular Department of Transportation inspections of testing stations).
The Amended Complaint also asks the Commission to adjudicate these claims based on
the premise that Uber and/or its drivers are “contract carriers” when transporting Union Pacific’s
employees. This position is incorrect as a matter of law. In the TNPA, the Illinois General
Assembly unambiguously determined that TNCs (like Uber) and TNC drivers, “are not common
carriers, contract carriers, or motor carriers, as defined by applicable State law.” 625 ILCS
57/25(e) (emphasis added). The TNPA imposes a separate regulatory regime for TNCs and TNC
drivers, which mandates liability insurance (Section 10), driver requirements including licensing
and criminal record checks (Section 15), and various safety requirements (Section 25).
The Unions plead that “even if Uber and/or Uber drivers do not constitute contract
carriers under these provisions, UP nonetheless has a duty to ensure that the vehicles used to
transport its railroad employees comply with these contract carrier requirements ….” (Amended
Complaint, ¶ 20). However, no authority exists for the proposition that the Commission should –
or could – enforce safety standards outside its statutory mandate. City of Chicago, 79 Ill. 2d at
217–18 (holding acts or orders beyond the purview of the Commission’s statutory authority are
void); see also Harrisonville Tel. Co. v. Illinois Com. Comm’n, 176 Ill. App. 3d 389, 392 (5th
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Dist. 1988) (“An administrative agency, such as the Commerce Commission, is created by
statute and has no general or common law powers ….”). Accordingly, the Amend Complaint’s
claim at Count I, ¶¶ 18-22, should be dismissed.
B. The Commission Cannot Issue the Requested Declaratory Relief
The declaratory relief sought in Count II is based on the same incorrect arguments,
seeking to create Commission jurisdiction where there is none. (See Amended Complaint, ¶¶ 23–
28).10 The Amended Complaint also contains a new request for a declaratory ruling that “each
time UP uses or hires Uber or an Uber driver to transport its railroad employees in the course of
their employment, Uber and/or the Uber driver are subject to the safety standards established
under [Part 1550].” (Id. at 10). As shown above, Part 1550.10(b), as drafted, appropriately
exempts vehicles operated by TNC drivers from regulation by the Commission (83 Ill. Admin.
Code 1551.10(b)), and the Commission cannot extend its statutory jurisdiction in a manner that
would be preempted by federal law. 625 ILCS 5/18c-7101.
III. THE UNIONS’ “APPLICATIONS FOR HIGHER SAFETY STANDARDS” MISREAD PART 1550.10(d) AND VIOLATE ADMINISTRATIVE PROCEDURE AND DUE PROCESS
Counts III and IV ask the Commission to prescribe “higher safety standards” applicable
to Union Pacific whenever “UP utilizes Uber or a comparable company or service to transport its
employees” (Count III at 13–14) and to “any and all vehicles being used to transport [Union
Pacific’s] railroad employees, including specifically Uber and/or Uber drivers” (Count IV at 15–
16). Counts III and IV are brought “in the alternative to Counts I and II” (Id., ¶38) in the event
10 The Commission’s declaratory jurisdiction is limited to “the applicability of any statutory provision enforced by the Commission or of any Commission rule to the person(s) requesting declaratory ruling.” 83 Ill. Admin. Code 200.220(a)(1) (emphasis added). The Amended Complaint recites various procedural requirements from Section 200.220 (id., ¶ 24) but omits the jurisdictional limitation.
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the Commission determines that Part 1550(b) exempts TNC drivers’ vehicles and the remaining
claims in Counts I and II are beyond the Commission’s jurisdiction. (Id., ¶¶ 33-34).
As conceived in the Amended Complaint, the Commission would use Part 1550.10(d) to
rewrite its regulations to apply to Union Pacific’s use of TNC services for employee
transportation as part of a Formal Complaint proceeding under Section 200.170. (Id., ¶¶ 32, 40).
Count III requests a “cease and desist” order prohibiting Union Pacific from using TNC services
that do not comply with those new “higher safety standards.” (Id. at 13). Count IV further seeks
an order that Union Pacific must require compliance with entirely new regulations related to the
COVID-19 pandemic, including by TNC drivers’ vehicles. (Id. at 16).
The Commission reasonably might ask how these proposed regulations, if promulgated,
could hope to withstand review due to direct conflicts with the TNPA, Illinois Vehicle Code and
federal law. (See above). The Commission does not have to reach these issues, however, to
dismiss Counts III and IV. The plain language of Part 1550.10(d) does not support the Amended
Complaint’s request for the Commission to prescribe and apply “higher safety standards” in the
context of this complaint proceeding – nor could it – because the relief requested is contrary to
basic administrative law principles and due process.
A. The Amended Complaint Misreads the Plain Language of Part 1550.10(d)
To understand the Amended Complaint’s error, the place to start is the language of Part
1550.10(d). The rule provides as follows:
“It is recognized that these regulations cannot cover all contingencies, and, accordingly, the Commission, upon written application or upon its own motion, may in a particular case, after notice and hearing, modify or grant exceptions to any of these regulations where their effect is unduly burdensome, or may prescribe higher standards than those herein prescribed where such higher standards are necessary for the safety of employees.”
92 Ill. Admin. Code 1550.10(d).
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Part 1550.10(d) recognizes that its regulations “cannot cover all contingencies” and,
“accordingly,” outlines a regulatory approach with two distinct paths. That is, the Commission:
(1) “may in a particular case, after notice and hearing, modify or grant exceptions to these
regulations where their effect is unduly burdensome,” or (2) “may prescribe higher standards that
those herein prescribed where such higher standards are necessary for the safety of employees.”
92 Ill. Admin. Code 15501.10(d) (emphasis added). In short, the Commission may grant an
individual variance from burdensome regulation “in a particular case,” after notice and hearing
where the record warrants, or it may institute a rulemaking to impose higher standards. But the
Commission cannot prescribe higher standards to impose on an individual respondent in the
context of a Formal Complaint proceeding.
By way of comparison, the language of Part 1550.10(d) regarding “unduly burdensome”
standards is similar to other Illinois statutory language allowing for variances in the
environmental context. See, e.g., 415 ILCS 5/35(a) (allowing for a variance from environmental
regulation under the Illinois Environmental Protection Act where a petitioner shows “that
compliance with any rule or regulation, requirement or order of the Board would impose
arbitrary or unreasonable hardship”). Part 1550.10(d)’s individual variance option also permits
the Commission “in a particular case” to “grant exceptions to any of these regulations,” where
there is a showing of undue burden on the regulated entity. 11
The same “particular case” language does not carry over to Part 1550.10(d)’s second
clause to allow the Commission to prescribe higher standards on a case-by-case basis. Instead,
11 Westlaw as of June 2021 included three citing references to Part 1550.10, and neither the court case nor the two administrative decisions/guidance materials construed subpart (d). Thus, this provision has not been construed by the Commission or any Illinois court, nor has the Commission used Part 1550.10(d) to impose “higher standards” in any proceeding, to Union Pacific’s knowledge.
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the second clause has its own “may” verb setting off the Commission’s alternative path to
“prescribe higher standards” than those already in Part 1550 “where such higher standards are
necessary for the safety of employees,” which would not and could not take place as part of a
contested case. 92 Ill. Admin. Code 1550.10(d). It would be a rulemaking.
B. The Amended Complaint’s Incorrect Reading of Part 1550.10(d) Violates Administrative Procedure and Due Process
The division between adjudicatory and rulemaking proceedings is necessary to protect
the individual interests at stake in complaint proceedings. According to the Illinois Supreme
Court, “a distinction is drawn in the administrative law area on the type of hearing that is
necessary to meet due process requirements in determining legislative facts as opposed to
adjudicative facts.” Advanced Sys., Inc. v. Johnson, 126 Ill. 2d 484, 506 (1989). “[T]here is ‘a
recognized distinction in administrative law between proceedings for the purpose of
promulgating policy-type rules or standards, on the one hand, and proceedings designed to
adjudicate disputed facts in particular cases on the other.’” Id. (quoting United States v. Florida
East Coast Ry. Co., 410 U.S. 224, 245 (1973)).
“The Illinois Administrative Procedure Act … applies to proceedings before the
Commerce Commission” and “provides for ‘contested case’ adjudication,” (id.) defined as:
“‘Contested case’ means an adjudicatory proceeding, not including rate making, rule-making, quasi-legislative, informational or similar proceedings, in which the individual legal rights, duties or privileges of a party are required by law to be determined by an agency only after an opportunity for hearing.”
Harrisonville Tel. Co., 176 Ill. App. 3d at 392 (emphasis added) (quoting 5 ILCS 100/1-30). As
described in Harrisonville Telephone Co., a contested case does not involve an agency’s rule-
making function. Id. The regulations under which the Unions initiated this proceeding and
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submitted their Formal Complaints codify this very distinction.12 The same is true for the ICTL,
which authorized Part 1550 and distinguishes between the Commission’s power to “[a]djudicate
disputes, hear complaints or other petitions for relief” from its rulemaking power to “[a]dopt
appropriate regulations setting forth the standards and procedures by which” the Commission
enforces the statute. Compare 625 ILCS 5/18c-1202(11) (adjudicating disputes), with
18c-1202(9) (adopting regulations).
Thus, there is no mechanism under Part 1550.10(d) for the Commission to prescribe the
Amended Complaint’s “Applications for Higher Safety Standards” and then apply those
standards after-the-fact to Union Pacific, which would have had no notice of them or opportunity
to address the proposed rulemaking. Nor could the Commission do so without violating due
process. “Notice is a fundamental requirement of due process because a party must be aware of
the state action in order to effectively contest it.” Quantum Pipeline Co. v. Illinois Com.
Comm’n, 304 Ill. App. 3d 310, 320 (3d Dist. 1999). “Equally as fundamental is the opportunity
to be heard at a meaningful time and in a meaningful manner.” Id. (finding Commission violated
pipeline’s due process right to notice by failing to follow Public Utilities Act provision before
taking action to rescind certificate to operate).
C. Counts III and IV Should Be Dismissed
In Count III, the Amended Complaint alleges that “[t]here is no rational basis to conclude
that the vehicles driven by Uber and/or Uber drivers are inherently safer than the vehicles driven
by contract carrier companies, or that the Uber vehicles should be free from any safety
12 Compare 83 Ill. Admin. Code 200.170 Formal Complaints (“A plain and concise statement of the nature of each complainant’s interest and the acts or things done or omitted to be done in violation, or claimed to be in violation, of any statute, or of any order or rule of the Commission.”) and 83 Ill. Admin. Code 200.210 Petition for Rulemaking (“Any interested person may petition the Commission requesting the promulgation, amendment or repeal of a rule.”).
PUBLIC
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regulation.” Id., ¶ 37. The question is not whether TNC drivers’ vehicles are “safer” than any
others, but whether the Commission has authority to regulate them – and it does not. The second
point is simply a misstatement of Illinois law, which expressly regulates the safety of TNC
drivers’ vehicles. 625 ILCS 57/25(d).
Count IV alleges on information and belief that “Uber has not adopted any social
distancing or contact tracing policies or protocols that would apply to railroad employees being
transported in Uber vehicles,” and petitions the Commission to prescribe new pandemic-related
regulations and to order Union Pacific to require TNCs and TNC drivers’ to comply with them.
The Commission has no authority to prescribe new regulations in this proceeding or to order
Union Pacific to require compliance by third parties, who are separately regulated under the
TNPA. Both Counts III and Count IV should be dismissed as a matter of law.
CONCLUSION
For these reasons, Union Pacific requests that the Commission dismiss the First Amended
Formal Complaint and Request for Declaratory Relief of the International Association of Sheet
Metal, Air, Rail, and Transportation Workers Transportation Division – Illinois Legislative
Board, and Brotherhood of Locomotive Engineers and Trainmen – Illinois State Legislative
Board, and provide such other relief as may be appropriate.
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Dated: June 18, 2021 Respectfully Submitted,
UNION PACIFIC RAILROAD COMPANY /s/ Thomas Andreoli Thomas Andreoli (#6242429) Brian Dodds (#6323824) RILEY SAFER HOLMES & CANCILA LLP 70 W. Madison Street, Suite 2900 Chicago, Illinois 60602 Telephone: (312) 471-8717 [email protected] [email protected]
VERIFICATION
I, Thomas Andreoli, counsel for Union Pacific Railroad Company, certify that I have read
the foregoing Motion to Dismiss the First Amended Formal Complaint and Request for
Declaratory Relief and that, under penalties as provided by law pursuant to Section 1-109 of the
Code of Civil Procedure (735 ILCS 5/1-109) and to the best of my knowledge, the statements set
forth in this instrument are true and correct, except as to matters therein stated to be on
information and belief and as to such matters the I certify that I verily believe the same to be
true.
Executed this 18th day of June, 2021, at Chicago, Illinois.
Thomas Andreoli
CERTIFICATE OF SERVICE
I, Thomas Andreoli, an attorney, certify that on June 18, 2021, I caused a copy of the
foregoing Union Pacific’s Motion to Dismiss the First Amended Formal Complaint and Request
for Declaratory Relief to be served by electronic mail on the individuals identified below, who
appear on the Commission’s Service List for Docket T20-0082 as of the date of this filing.
/s/ Thomas Andreoli Attorney for Union Pacific Railroad Company
SERVICE LIST Jeremy M. Berman Josephine Jordan General Attorney In-House Counsel Union Pacific Railroad Union Pacific Railroad 1400 Douglas Street 1400 Douglas St. Omaha, NE 68179 Omaha, NE 68179 [email protected] [email protected] Shawn D. Lanka Dennis Mogan Union Pacific Railroad Railroad Safety Specialist 140 Douglas St., STOP 1580 Illinois Commerce Commission Omaha, NE 68179 527 E. Capitol Avenue [email protected] Springfield, IL 62701 [email protected] Matthew J. Pierce John A. Plebanek Asher Gittler & D’Alba, Ltd, Union Pacific Railroad 200 W. Jackson Blvd., Ste. 720 3811 17th Pl. Chicago, IL 60606 Kenosha, WI 53140 [email protected] [email protected] Martin W. Burzawa Transportation Illinois Commerce Commission 160 N. LaSalle St., Ste. C-800 Chicago, IL 60601 [email protected] 4815-2683-7231, v. 1