STB’s Schultz Confirmed; Kloster Not (UPDATED 12/19)
With a term expiration date of Nov. 30, 2030, Schultz, along with Republican Chairperson Patrick J. Fuchs, whose second term expires Jan. 14, 2029, will be in place for an anticipated early 2027 vote on a proposed Union Pacific-Norfolk Southern merger. A formal merger application was filed Dec. 19, beginning an arduous review process whose timeline has yet to be set but culminating, by statute, within 13 months.
The STB has sole statutory authority to approve railroad mergers, although the Department of Justice and Department of Transportation are statutory parties to the proceeding and are expected to file comments.
STB Democratic member Karen J. Hedlund’s first term expires Dec. 31, and unless she is nominated to a second term during her statutorily allowed 12-month holdover, she will have departed by the time of an early 2027 merger vote.
Two other STB seats are currently vacant. Although Republican Richard Kloster was nominated earlier this year by POTUS 47 to fill a third Republican seat, the Senate Commerce Committee, although holding a hearing into his qualifications, failed to take further action needed to advance his name to the Senate floor for a confirmation vote. No reason was provided. Per Senate custom, the nomination has been returned to the White House, which must renominate him, or an alternative Republican, in 2026. The seat to which Kloster was nominated has been vacant since the retirement in 2024 of Democrat Martin J. Oberman, and carries an termination date of Dec. 31, 2028, meaning whomever is nominated and confirmed to that seat will be eligible to vote on the merger application.
As the political party of the sitting President is allowed a one-seat majority on the five-member STB, Oberman’s open Democratic seat became reserved for a Republican—presumably Kloster—upon POTUS 47’s inauguration in January.
The fifth and second Democratic seat, previously held by Robert E. Primus until he was fired in August by POTUS 47, remains open. Primus is contesting the firing as “illegal,” and a court decision likely will await a separate Supreme Court verdict on whether a President has legal authority to fire a sitting member of an independent regulatory agency without showing cause (inefficiency, neglect of duty or malfeasance in office).
POTUS 47 has similarly fired, without cause, some dozen other Democrats on independent regulatory and advisory agencies, saying they are not in line with Presidential priorities.
While a 90-year-old Supreme Court (SCOTUS) precedent holds that the President may not fire members of independent agencies who have been Senate-confirmed to fixed terms—and some lower courts ordered reinstatement of several, although those decisions were generally stayed—the SCOTUS has the final say.
A decision is expected by summer on whether to overturn that precedent under a “unitary executive theory.” The theory, advanced by conservative legal scholars and embraced by POTUS 47, holds that the Constitution’s Article II provides for one executive, the President, and individuals may not wield substantial executive power outside of the elected President’s authority.
The SCOTUS case involves a fired member of the Federal Trade Commission, Democrat Rebecca Kelly Slaughter, but the decision will affect Primus’ fate as well as the fates of National Mediation Board Democrat Dierdre Hamilton and National Transportation Safety Board Democrat Alvin Brown, each of whom also was fired by POTUS 47.
STB’s governing statute has no quorum requirement. It provides that “a vacancy in the membership of the Board does not impair the right of the remaining members to exercise all of the powers of the Board,” meaning three Republicans—or two or even one—may decide cases if it comes to that.
Although Schultz was first nominated by POTUS 45 in 2018, she was not Senate confirmed to her first five-year term until November 2020. As a matter of past practice—given floor time constraints under Senate rules—a nominee to a multi-member, bipartisan agency had often been paired with one from the opposite political party prior to confirmation. That Democrat became Primus in 2020 following his nomination by POTUS 45 (who fired him as POTUS 47). Both Primus and Schultz were Senate confirmed to their first terms in November 2020. Primus was confirmed to his second five-year term in 2022 following nomination by President Joe Biden.
Schultz’s first-term seat was one of two created by the 2015 Surface Transportation Board Reauthorization Act, which expanded the STB from three to five members. Fuchs was nominated to the other new seat and is currently in his second and final (by statute) term. Primus filled a seat vacated by Democrat Debra L. Miller, whose term had expired.
With 2025 Republican majority changes, or reinterpretations, to Senate rules, nominees can be moved in a large group without individually occupying Senate floor time, mitigating the need for a pairing and allowing Schultz to be confirmed as one of more than 80 Republican nominees. This shift in practice greatly reduces opportunities for obstruction of nominees that would otherwise secure a majority vote.
Kloster, if recommended by the Senate Commerce Committee, similarly is expected to be confirmed as part of a large group package. In the meantime, he has been given access to STB staff who are briefing him on issues, although he is not privy to draft decisions or matters submitted to the STB under seal.
Schultz, age 53, earned an undergraduate degree in English from Penn State University (1994), a juris doctorate from Widener University Law School (1998), and a master’s in government administration from the University of Pennsylvania (2008).
Prior to joining the STB, she was Deputy General Counsel and Director of Legislative Affairs for Southeastern Pennsylvania Transportation Authority (SEPTA). Earlier in her career, she was an associate with the Philadelphia-based law firm of White and Williams, dealing with bankruptcy and commercial litigation, and a law clerk with the U.S. Bankruptcy Court for the Eastern District of Pennsylvania.
