The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA STATE LEGISLATIVE
BOARD, UNITED TRANSPORTATION
UNION,
Petitioner,
v. No. 03-72211
DEPARTMENT OF TRANSPORTATION; OPINION
NORMAN Y. MINETA, Secretary of
Transportation; ALLAN RUTTER,
Administrator,
Respondents.
On Petition for Review of an Order of the
Federal Railroad Administration
Argued and Submitted
December 8, 2004—San Francisco, California
Filed March 9, 2005
Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
3031
CAL. STATE LEGISLATIVE BOARD v. DOT 3033
COUNSEL
Lawrence M. Mann, Washington, D.C., argued the cause for
the petitioner.
Peter J. Plocki, Office of General Counsel, U.S. Department
of Transportation, Washington, D.C., argued the cause for the
3034 CAL. STATE LEGISLATIVE BOARD v. DOT
respondents; Kirk Van Tine, Paul M. Geier, and Dale C.
Andrews, Office of General Counsel, U.S. Department of
Transportation, Washington, D.C., and S. Mark Lindsey, Dan-
iel C. Smith, Billie A. Stultz, and Colleen A. Brennan, Office
of Chief Counsel, Federal Railroad Administration, Washing-
ton, D.C., were on the brief for the respondents.
Louis P. Warchot and Michael J. Rush were on the brief for
amicus curiae the Association of American Railroads.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the Federal Railroad Administra-
tion may exclude hotels and motels from regulation under the
Hours of Service law for railroad operating employees.
I
The Union Pacific Railroad Company rents rooms in Por-
tola, California, for some of its operating employees at the
Sierra Motel, which provides lodgings to the public.
In August of 2002, an official of the United Transportation
Union (“the Union”), representing such employees, com-
plained to the Federal Railroad Administration (“FRA”),
asserting that the Sierra Motel had unsafe wiring and, because
it lacked wall insulation and double-paned windows, allowed
in too much noise from logging trucks and other traffic on the
adjacent highway. The Union alleged that such conditions
violated the Hours of Service law,1 which regulates railroad-
ers’ work and mandatory off-duty time.
1
The Hours of Service law is now codified at 49 U.S.C. §§ 21101-
21108, 21303, and 21304. It is administered by the Secretary of Transpor-
tation, but the Secretary has delegated that authority to the FRA. See CA
State Leg. Bd., United Transp. Union v. Mineta, 328 F.3d 605, 606 (9th
Cir. 2003).
CAL. STATE LEGISLATIVE BOARD v. DOT 3035
A regional administrator for the FRA declined to address
the complaint on the grounds that the law did not apply to
public lodging secured in an arms-length transaction. The
Union appealed within the agency, but the decision was
upheld. The Union petitions for judicial review and we have
jurisdiction under 28 U.S.C. § 2342(7).
II
[1] The Union argues specifically that the rooms in the
Sierra Motel violate clause (1) (“the sleeping conditions
clause”) of 49 U.S.C. § 21106, which became law in 1976
when Congress enacted a predecessor provision as an amend-
ment to the Hours of Service law. See Pub. L. No. 94-348, 90
Stat. 818 (1976). The original text was substantially in its cur-
rent form, which now provides:
A railroad carrier and its officers and agents—
(1) may provide sleeping quarters (including crew
quarters, camp or bunk cars, and trailers) for
employees, and any individuals employed to main-
tain the right of way of a railroad carrier, only if the
sleeping quarters are clean, safe, and sanitary and
give those employees and individuals an opportunity
for rest free from the interruptions caused by noise
under the control of the carrier; and
(2) may not begin, after July 7, 1976, construction or
reconstruction of sleeping quarters referred to in
clause (1) of this section in an area or in the immedi-
ate vicinity of an area, as determined under regula-
tions prescribed by the Secretary of Transportation,
in which railroad switching or humping operations
are performed.
49 U.S.C. § 21106. Clause (2) (“the construction clause”) was
and is explicitly linked to clause (1), the sleeping conditions
3036 CAL. STATE LEGISLATIVE BOARD v. DOT
clause. See 49 U.S.C. § 21106(2). Though the FRA did not
receive rulemaking authority for the sleeping conditions
clause, it did for the construction clause. Id.
[2] In 1978, in rulemaking under the construction clause,
the FRA held that “sleeping quarters” did not include rooms
at public lodging facilities. 43 Fed. Reg. 31,006, 31,008
(1978) (stating that “the regulation of public accommodation
such as commercial hotels and motels is beyond the scope of
[FRA] authority . . . . [Q]uarters provided in places of public
accommodation under an ordinary arms-length transaction are
not governed by [the Hours of Service law].”). In 1979, the
Administrator of the FRA indicated that it maintained the
same understanding of “sleeping quarters” with respect to the
companion sleeping conditions clause. In 1981, the Adminis-
trator of the FRA reiterated that understanding: he declined a
Congressman’s request to investigate a constituent railroad
worker’s complaint of poor conditions at a hotel because
“places of public accommodation were not intended to be
treated as ‘sleeping quarters’ ”.
In 1988,2 and again in 1992,3 Congress altered the scope of
the penalty provision (now found in 49 U.S.C. § 21303) of the
Hours of Service law. These alterations did not, however,
affect the substantive provisions of 49 U.S.C. § 21106.
III
We now turn to the merits.
2
See Pub. L. 100-342, § 16(6)(A), 102 Stat. 635 (1988).
3
See the Rail Safety and Enforcement Act, Pub. L. No. 102-365, § 9,
106 Stat. 972 (adding a standard parenthetical to the penalty provisions of
eight different laws, including the Hours of Service law, that specified that
penalties could be assessed against “any independent contractor providing
goods or services to a railroad; and any employee of such owner, manu-
facturer, lessor, lessee, or independent contractor”).
CAL. STATE LEGISLATIVE BOARD v. DOT 3037
A
[3] Because the FRA does not make rules under the sleep-
ing conditions clause, its interpretation of that clause does not
automatically merit Chevron-level deference. CA State Leg.
Bd., United Transp. Union v. Mineta, 328 F.3d 605, 607 (9th
Cir. 2003). Instead, the deference owed the FRA depends on
“ ‘the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later pronounce-
ments, and all those factors that give it power to persuade.’ ”
Id. (quoting United States v. Mead Corp., 533 U.S. 218, 228
(2001) (citation omitted)). Applying such test, it would appear
that the FRA’s interpretation merits considerable deference
indeed. The FRA has maintained its interpretation for over
twenty-five years and it has unique experience and insight
since it is tasked with enforcing the statute. See Mead, 533
U.S. at 227-28 (“considerable weight should be accorded to
an executive department’s construction of a statutory scheme
it is entrusted to administer”) (citations omitted). The FRA’s
interpretation was contemporaneous with the passage of the
statute. See United States v. Cleveland Indians Baseball Co.,
532 U.S. 200, 219 (2001) (“ ‘A regulation may have particu-
lar force if it is a substantially contemporaneous construction
of the statute by those presumed to have been aware of con-
gressional intent.’ ”) (quoting Nat’l Muffler Dealers Assn.,
Inc. v. United States, 440 U.S. 472, 477 (1979)). Finally, the
FRA arrived at its interpretation of the sleeping conditions
clause by interpreting its tandem construction clause in an
notice-and-comment rulemaking that would be entitled to
Chevron-level deference, were it at issue in this litigation.
B
[4] We will not defer, however, to an agency interpretation
contrary to “our obligation to honor the clear meaning of a
statute.” See Int’l Bhd. of Teamsters v. Daniel, 439 U.S. 551,
566 n.20 (1979). It is crucial, therefore, that the statute sup-
port or at least permit the agency’s interpretation.
3038 CAL. STATE LEGISLATIVE BOARD v. DOT
[5] We are satisfied that it does. Though the sleeping condi-
tions clause states that a “railroad carrier and its officers and
agents . . . may provide sleeping quarters (including crew
quarters, camp or bunk cars, and trailers)” only if they are
“clean, safe, and sanitary”, and free from “noise under the
control of the carrier”, the term “sleeping quarters” is not
defined. 49 U.S.C. § 21106.
[6] Indeed, the absence of hotels and motels in the list of
specific examples suggests that “sleeping quarters” only
refers to railroad-owned or operated facilities. “[C]rew quar-
ters, camp or bunk cars, and trailers” are all lodgings typically
owned or operated by railroads. According to the canon of
ejusdem generis, the general term should be defined in light
of the specific examples provided. See Circuit City Stores,
Inc. v. Adams, 532 U.S. 105, 114-115 (2001) (explaining that
when general terms accompany lists of specific examples,
“ ‘the general words are construed to embrace only objects
similar in nature to those objects enumerated by the [accom-
panying] specific word’ ” (citation omitted)).4 Thus, while
“sleeping quarters” can refer to more than “crew quarters,
camp or bunk cars, and trailers,” it only refers to accommoda-
tions that, like them, the railroad owns or operates.
In addition, the absence of any reference to hotels and
motels is particularly striking in light of the prevailing indus-
try custom. We are informed that most railroads put up their
employees in hotels and motels rather than provide “crew
quarters, camp or bunk cars, and trailers.” Yet the sleeping
conditions clause specifically refers to these latter while say-
ing nothing about hotels, motels, or other public facilities.
This silence suggests that such accommodations were not
meant to be covered under the clause.
4
The Supreme Court here refers only to specific words that precede
general words. Indeed, that is the usual formulation to which the canon
applies. There is no reason, however, to think that reversing the order of
the specific and general words makes the canon inapplicable. See 2A Suth-
erland, Statutes and Statutory Construction §47.17, at 188 (5th ed., Nor-
man Singer ed. 1992).
CAL. STATE LEGISLATIVE BOARD v. DOT 3039
[7] Thus, though the sleeping conditions clause contains
some ambiguities, a close reading strongly supports the
FRA’s interpretation. So does the fact that the FRA’s interpre-
tation exercises restraint with respect to motel and hotel regu-
lation, an area still generally in the province of the States. Cf.
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992)
(interpreting pre-emption provisions narrowly because “we
must construe these provisions in light of the presumption
against the pre-emption of state police power regulations”);
Gregory v. Ashcroft, 501 U.S. 452, 461-64 (1991) (construing
the Federal Age Discrimination Employment Act in light of
the reality that “States retain substantial sovereign powers
under our constitutional scheme, powers with which Congress
does not readily interfere”).
C
[8] Against the FRA’s restraint with respect to the States
and the fruits of a close reading of the text we must set the
purpose of the Hours of Service law—promoting railroad
safety, see Bhd. of Locomotive Engineers v. Atchison, Topeka
and Santa Fe R.R. Co., 516 U.S. 152, 153 (1995)—and the
well-known rule that the Hours of Service law should be
interpreted to further that purpose. Atchison, Topeka and
Santa Fe R.R. v. United States, 244 U.S. 336, 343 (1917);
Chicago & A.R. Co. v. United States, 247 U.S. 197, 199-200
(1918). Fatigue in railroaders surely decreases safety. Just as
surely, good sleeping conditions in motels and hotels allow
somewhat better rest and thereby decrease fatigue. Nonethe-
less, though an expansive reading of the sleeping conditions
clause arguably might have some effects on safety, we cannot
require the FRA to adopt such expansive reading in the face
of the normative and textual indicia of statutory meaning. The
Supreme Court has explained that “no legislation pursues its
purposes at all costs. Deciding what competing values will or
will not be sacrificed to the achievement of a particular objec-
tive is the very essence of legislative choice—and it frustrates
rather than effectuates legislative intent simplistically to
3040 CAL. STATE LEGISLATIVE BOARD v. DOT
assume that whatever furthers the statute’s primary objective
must be the law.” Rodriguez v. United States, 480 U.S. 522,
525-26 (1987). Just two years ago this court upheld an inter-
pretation of the Hours of Service law that allowed railroaders’
rest periods to be interrupted by work related telephone calls,
while rejecting an alternate interpretation that would have
allowed more rest and therefore more safety. Cal. State Legis-
lative Bd., United Transp. Union v. Mineta, 328 F.3d 605 (9th
Cir. 2003). The safety-promoting purposes of the Hours of
Service law are an important consideration in interpreting the
sleeping conditions clause but not an overriding one.
The Union contends that the 1988 and 1992 amendments to
the penalty provision of the Hours of Service law, especially
the 1992 reference to independent contractors, also supports
its interpretation. We disagree. The Hours of Service law pen-
alty provision applies across multiple sections. In altering it,
Congress had no discernible intentions with respect to the
sleeping conditions clause. Indeed, even if the penalty provi-
sion referred solely to the sleeping conditions clause, no
change in interpretation would be necessary to make the
altered penalty provision meaningful. On the other hand, that
Congress acted to alter the Hours of Service law without spec-
ifying that “provid[ing] sleeping quarters” referred to renting
rooms in hotels and motels actually supports the FRA’s inter-
pretation. Congressional “ ‘failure to revise or repeal the
agency’s interpretation is persuasive evidence that the inter-
pretation is the one intended by Congress.’ ” Douglas County
v. Babbitt, 48 F.3d 1495, 1504 (9th Cir. 1995) (quoting Com-
modity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846
(1986) (citation omitted)).
IV
[9] For the foregoing reasons the FRA’s interpretation of
49 U.S.C. § 21106 is entitled to deference. The petition for
review is
DENIED.