Amtrak loses patience (finally)

Posted by Fred Frailey
on Tuesday, November 18, 2014

About time, I say.

During an interview with D.J. Stadtler, Amtrak’s VP operations, for a story to appear in the January issue of Trains, I asked why Amtrak hadn’t taken Norfolk Southern and CSX Transportation to court over their mishandling of the Capitol Limited and Lake Shore Limited, “court” of course being the Surface Transportation Board. Congress in 2008 gave Amtrak the right to seek damages for repeated and inordinate delays. Stadtler hemmed and hawed a few seconds and said it takes an enormous amount of time to amass a legal case that can withstand scrutiny. What he couldn’t say was, wait a few weeks.

Yesterday Amtrak’s hired guns from the DC law firm of Nossaman LLP, including former STB chairman Linda J. Morgan, filed a complaint with the STB, asking the board to investigate the two railroads’ handling of the Capitol Limited, which operates over CSX between Washington and Pittsburgh and on NS between Pittsburgh and Chicago. Amtrak is asking the STB for monetary awards “and other relief it determines to be reasonable and appropriate.”

Much as I respect the two railroads, Amtrak’s call for accountability is long overdue. Readers of this blog know I’ve obsessed at the poor handling of this train and the New York City-Chicago Lake Shore Limited all year. The dispatching by Norfolk Southern has been especially egregious.

The Passenger Rail Investment and Improvement Act of 2008, in Section 213, handed Amtrak a powerful weapon: Whenever a train averages less than 80 percent on time over two consecutive quarters, the legislation said, Amtrak can seek damages from the STB. The Capitol arrived in Chicago and Washington within 30 minutes of its scheduled time 2.7 percent and 33.6 percent in the quarters ending September 30 and June 30, respectively. In fact, the Capitol hasn’t hit the 80 percent level since the January-March 2013 quarter.

I suspect Amtrak did this to maintain any credibility with its host railroads and its passengers aboard the Capitol. I say this because sizable damages are going to hard to substantiate. True, Amtrak paid a lot of hotel bills in Chicago for missed connections. But for the past two quarters, from April through September, ridership of the Capitol Limited actually increased over the same months of 2013, 129,394 passengers this year versus 125,691 last year. In that same period of this year, ridership also exceeded what Amtrak expected, or budgeted, by 3,253 riders. However, ticket revenue for the last two quarters fell $441,000 below last year and $693,000 below Amtrak’s budget. But either number is probably less than Ms. Morgan’s three-person legal team from Hossaman will ultimately bill Amtrak for slogging this through the STB.

Yes, slog. This is the second such case Amtrak has filed under PRIIA Section 213. In 2012 it took Canadian National to task over unacceptable delays to the Illini and Saluki between Chicago and Carbondale, Ill. More than two years later, CN and Amtrak are still in the early stages. You get a flavor of the proceeding’s endless corridors of inquiry from this recent filing by Amtrak’s attorneys, the same Nossaman lawyers: “Any discovery directed by a Board decision on CN’s Second Motion to Compel Production and CN’s Appeal of the Board’s decision on CN’s first Motion to Compel can be produced once the Board issues its decisions on those Motions.” That’s correct, the case isn’t close to being argued because both sides are still busy collecting evidence from each other.

Section 213 is obviously not a weapon to be used lightly. As we are seeing in the CN case, resolution can take years, and the STB is always free to side with the freight railroad. And Joe Boardman, Amtrak’s president, has no appetite to pick fights with his host railroads. On the other hand, the long distance name trains this year got slaughtered, and a continuation of this pattern into 2015 and perhaps beyond would clearly ruin the long-distance franchise. I would be surprised if more such cases, involving the Lake Shore, Empire Builder and California Zephyr in particular, were not in the works.

So yes, about time. — Fred W. Frailey

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