Petition — Co-operative Legislative Committee v. Norfolk & Western Railway Co.

Otis Supreme Cour, 05] ,

FILED :

83-1772 APR 16 1964

No ALEXANDER L. STEVAS,

a

= CLERK

In the Supreme Court of the United States

October Term, 1983

THE CO-OPERATIVE LEGISLATIVE COMMITTEE,

RAILROAD BROTHERHOODS AND RAILROAD

UNIONS, STATE OF OHIO,

Petitioner,

VS.

NORFOLK AND WESTERN RAILWAY COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Section 1152 Panel of the Special Court of the

United States, Regional Rail Reorganization Act

C. RicHarp GriesEr, Counsel of Record

MarK A. ADAMS

Grrrser, SCHAFER, BLUMENSTIEL & SLANE

Co., L.P.A.

261 West Johnstown Road

Columbus, Ohio 43239

Telephone: (614) 475-9511

Attorneys for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5447

QUESTION PRESENTED FOR REVIEW

Whether Congress violated the “due process” and

“equal protection’”’ components of the Fifth Amendment

to the United States Constitution by passing the last clause

of Title 45, U.S.C., Section 797j, which purports to exempt

all non-profitable and profitable railroads, in the statutorily

defined region, from state laws requiring the operation of

trains with full crews (or the payment of protective bene-

fits in lieu thereof), when said section (a) has absolutely

no legislative history to support it, (b) apparently resolves

an issue which has been unsuccessfully debated in and

out of Congress for over twenty years, and (c) is contrary

to the explicit goals, purposes, and objectives of both the

Regional Rail Reorganization Act and the Northeast Rail

Service Act.

PARTIES TO THE PROCEEDINGS BELOW

A. Respondent and Plaintiff—Norfolk and Western

Railway Company

B. Defendants—Public Utilities Commission of Ohio;

Michael Del Bane, Chairman and Commissioner of the

Public Utilities Commission of Ohio; and William Brooks,

Commissioner of the Public Utilities Commission of Ohio

C. Petitioner and Intervenor—The Co-Operative Leg-

islative Committee, Railroad Brotherhoods and Railroad

Unions, State of Ohio

TABLE OF CONTENTS

Question Presented for Review .2.............cccccccccceeeeeeeeeeeee I

Parties to the Proceedings Below 200.200... .ceccccecccceeeees I

Opinion of the Special Court Below 000. 1

i sanssetnadinnetennrntiontnin 2

Constitutional and Statutory Provisions Involved ........ 2

ar sctctiascnetnisaneisiimniinihtinonnibin 3

Reasons for Granting the Petition —...00.0.0200.ee 6

Appendices:

A. Opinion of Special Court, Regional Rail Re-

crganization Act (March 29, 1984) 0000... Al

B. Order of Special Court Staying Proceedings

Before Public Utilities Commission of Ohio

EEE a Ie a OC En Al3

Order of Special Court Denying Motion of Pub-

lic Utilities Commission to Dismiss (May 25,

1983) : Al6

C. Order of Special Court to Be Reviewed

inc ntcetntliennetitaiing Alg

D. United States Code:

45 USC. § 701 asinisasiinliiiaals A21

45 U.S.C. § 797} idiiphibiaeipiadceinatial A23

EE SE Seen A23

ats dita nce tales A24

Ee A26

E. Ohio Revised Code § 4999.20 000. A29

TABLE OF AUTHORITIES

Cases

Chicago & Northwestern Railroad Co. v. United Trans-

portation Union, 402 U.S. 570 (1971) -20.e.. 7

United States Railroad Retirement Board v. Fritz, 101

ee Ge Ce ec 13

United Transportation Union v. Consolidated Rail Corp..,

535 F. Supp. 697 (Regional Rail Reorganization

Court 1982), cert. denied, 102 S. Ct. 960 (1982) ...... 7

Constitution

Fifth Amendment to the United States Constitution .... 2, 5,

6, 11,13

Statutes

Regiona! Rail Reorganization Act, Title 45, U.S.C., Sec-

I Fa Ge GI: ccicusaiinstitnsaincentginnuitintiniitninaaiininnnn 2

pe 2, 10

Title 46, U.SC., Section 701(1) ......c.c.cccccosccccscesescesees 10

Title 45, U.S.C., Section 701(b) (2) ........2.0......... Q

So GE, UE, GMa TOG) icaseeccensssenssstcsetneccssesseees 12

pe Bt Ta, peemerenemumencunecmenmuara passim

Rail Service Improvement Act of 1981 00000... 8,9

H. R. Rpt. Rep. No. 97-153, 97th Congress First Session

p. 30 (1981) 8

Omnibus Budget Recsneliintion Act of 1981 Public Law

97-35 7

Northeast Rail Service Act, Title 45, US.C., Section

1101, et seq. ” i .2,10,11

Title 45, U.S.C., Section RII \ccstnicssctsbactcdetnihanpeacediicaiael .2, 10

IV

I Sg ta III TINIE scncsrescocsassapetssasnonsandontonbenitianeinn 2,10

Ey ies, CI I esctcecnssecicassnctinssnsenensesennsnniphs 2, 10

Ee Eee CI GINO enceesccsscvcnnsecnstisenomeentccsemecanne 2

Title 45, U.S.C., Section 1105 (bb) un... cece cecccccseseees 2

Ohio Revised Code, Section 4999.20 ..2.0..0.... cece. 2, 3, 4, 12

1981 U.S. Code wien Administrative News, pp.

No.

In the Supreme Court of the United States

October Term, 1983

THE CO-OPERATIVE LEGISLATIVE COMMITTEE,

RAILROAD BROTHERHOODS AND RAILROAD

UNIONS, STATE OF OHIO,

Petitioner,

vs.

NORFOLK AND WESTERN RAILWAY COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Section 1152 Panel of the Special Court of the

United States, Regional Rail Reorganization Act

OPINION OF THE SPECIAL COURT BELOW

The opinion of the Special Court from which this peti-

tion arises is set out in the Appendix as Appendix A. To

petitioner’s knowledge, it has not been given any official

citation as of this time.

JURISDICTION OF THE COURT

Petitioner is seeking review of an order of the Special

Court granting a motion for summary judgment filed by

the plaintiff, Norfolk and Western Railway Company. The

order granting the motion for summary judgment was

filed on March 29, 1984, and was duly entered at that time.

Petitioner, intervenor below, seeks review by this

Court pursuant to Title 45, U.S.C. Section 1105(b) (set out

in the Appendix at Appendix D). By the terms of the

foregoing provision, plaintiff has twenty days after the en-

try of any order within which to petition this Court for a

writ of certiorari.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the United States Con-

stitution provides in relevant part:

“No person shall... be deprived of life, liberty, or

property, without due process of law... .”

2. Petitioner also refers the Court to Appendices D

and E in which the following statutes are fully set forth:

Title 45, U.S.C., Sections 701, 797j, 1101, 1102, 1103, and

1105, and Ohio Revised Code Section 4999.20.

The foregoing statutory provisions have been set forth

in the Appendix because of their length.

STATEMENT OF THE CASE

On October 27, 1982, petitioner, the Co-Operative Leg-

islative Committee, Railroad Brotherhoods and Railroad

Unions, State of Ohio (hereinafter petitioner or “Co-Op”’)

filed a complaint with the Public Utilities Commission of

Ohio (hereinafter PUCO) essentially stating that the

Norfolk and Western Railway Company (hereinafter N&W)

had violated Ohio Revised Code Section 4999.20 on two

occasions by operatirg trains without a fireman when

firemen with seniority dates adequate to invoke the pro-

tection of Section 4999.20 were available for employment.

(Ohio Revised Code Section 4999.20 is set forth in Appen-

dix E.)

The PUCO investigated the complaints and ultimately

commenced formal proceedings against the N&W ordering

the N&W to reply to the Co-Op’s complaint. Instead, the

N&W filed a complaint in the Special Court on February

25, 1985, seeking a temporary and permanent injunction

against the PUCO and a declaratory judgment that Section

4999.20 of the Ohio Revised Code was pre-empted by Title

45, U.S.C., Section 797j (Section 711 of the Regional Rail

Reorganization Act). Shortly after the filing of the com-

plaint by the N&W the Co-Op moved to intervene in the

case and said motion was granted by the Special Court.

On March 22, 1983, the PUCO filed a motion to dis-

miss the complaint contending that the Special Court did

not have jurisdiction over the matter and was without

power to enjoin proceedings before the PUCO. This mo-

tion was denied by the Special Court on May 25, 1983

(Appendix B).

Ultimately, on December 7, 1983, the N&W filed a

motion for summary judgment and a motion for prelimi-

4

nary injunction. In response to the motion for preliminary

injunction, the Special Court ordered a stay of the PUCO

proceedings on December 22, 1983 (Appendix B).

An oral hearing before the Special Court was con-

ducted on January 20, 1984, with respect to the N&W’s

motion for summary judgment. Finally, on March 29, 1984,

the Special Court granted the motion for summary judg-

ment filed by the N&W although it denied the N&W’s re-

quest for an injunction (Appendix C). The Co-Op now

seeks review of the Special Court’s order granting the mo-

tion for summary judgment.

This case involves the interpretation of Title 45, U.S.C.,

Section 797j which provides:

“Preemption

No State may adopt or continue in force any law,

rule, regulation, order, or standard requiring the Cor-

poration, the National Railroad Passenger Corporation,

or the Amtrack Commuter Services Corporation to

employ any specific number of persons to perform

any particular task, function, or operation, or requir-

ing the Corporation to pay protective benefits to em-

ployees, and no State in the Region may adopt or con-

tinue in force any such law, rule, regulation, order, or

standard with respect to any railroad in the Region.”

The N&W contends that the above statutory provision

pre-empts the Ohio Revised Code Section 4999.20, and that

the N&W, therefore, is not obligated under Ohio state law

to man its trains with firemen who have a seniority date

specifically protected by the Ohio statute.

In fact, the only provision of Section 797j applicable

to the N&W is the last clause of the foregoing provision

5

and it is this sentence that the Co-Op believes is uncon-

stitutional. The Co-Op believes that the last clause of

Section 797j violates the “due process” and “equal pro-

tection” components of the Fifth Amendment to the United

States Constitution. With respect to the due process argu-

ment, the Co-Op believes that the foregoing provision is

arbitrary and capricious because it resolves an issue which

has been unsuccessfully debated in and out of Congress for

over twenty years without ever having any public hear-

ing or public discussion of the matter, and is contrary

to the explicit goals, purposes, and objectives of both the

Regional Rail Reorganization Act (hereinafter 3-R Act)

and the Northeast Rail Service Act (hereinafter NRSA).

The Co-Op additionally believes that the foregoing pro-

vision sets up irrational classifications of railroad workers

since employees of profitable railroads within the statu-

torily defined region are detrimentally affected by the

statute, yet employees of either the same raliroad or other

railroads not within the statutorily defined region may

avail themselves of such “full crew” statutes.

Most importantly, this Court should review this statute

because it has absolutely no histc-y to support it, and to

uphold its constitutionality will set forth the precedent

that any piece of congressional legislation involving eco-

nomic rights or duties is constitutional merely because

Congress passes it rather than on its “rational basis” in

relation to its stated objectives. In other words, if the

constitutionality of Section 797j is upheld, this Court will

be immunizing all social and economic legislative enact-

ments from judicial review. The Co-Op believes that such

a tautological approach is not, and should not be, sufficient

analysis of social and economic legislation.

REASONS FOR GRANTING THE PETITION

The facts and issue of this case are very simple. The

question is whether or not Title 45, U.S.C., Section 797j

unconstitutionally violates the due process and equal pro-

tection components of the Fifth Amendment. The Co-Op

concedes that Section 797j is part of a much larger eco-

nomic piece of legislation. The Co-Op is also aware of the

long-standing history of this Court in upholding economic

legislation challenged on the basis of due process or equal

protection. This history obviously runs from the days of

the Great Depression when the Court at that time utilized

substantive due process to strike down numerous pieces of

New Deal legislation. In fact, in the fifty years since the

Great Depression, any constitutional lawyer would be hard

pressed to find any precedent for holding a piece of eco-

nomic legislation unconstitutional as violating the due

process clause of the Fifth Amendment.

The Co-Op believes that the Court’s analysis has, quite

frankly, developed into a strictly tautological approach

which avoids the necessity for evaluating the relationship

between the challenged legislation and its stated purpose.

In short, economic legislation today is held constitutional

merely because Congress intended to do what it did in

the legislation. The analysis has been reduced to affirm-

ance of constitutionality based on post hoc justifications

offered by either the government or other attorneys, and

embraced by the courts below, as the rational basis for

the legislation.

The case presented here for review represents a classic

example. If this Court denies this petition for certiorari,

it will be upholding a legislative enactment that has ab-

solutely no legislative history to support it, is contrary to

7

the objectives and purposes of the statute in which it is

found, and resolves, without discussion, an issue that has

eluded congressional action for over twenty years.

By pre-empting state full crew laws and their progeny,

Section 797} has resolved an issue which has been hotly de-

bated since 1960. The history of the manning of trains has

been set forth in various cases, but is most comprehensive

in the cases of United Transportation Union v. Consoli-

dated Rail Corp., 535 F. Supp. 697 (Regional Rail. Re-

organization Court 1982), cert. denied, 102 S. Ct. 960 (1982)

and Chicago & Northwestern Railroad Co. v. United Trans-

portation Union, 402 U.S. 570 (1971). Despite all of the

continuing problems and difficulties obvious from this

history, the congressional action in passing the last sentence

of Section 797j (with respect to all profitable railroads

within the region) was performed without any public hear-

ing or any public debate. Indeed, the foregoing provision

of Section 797j was not included in either the House or

the Senate version of the bill. It is very apparent that

it was, as the Special Court stated below, put in “at the

eleventh hour.” However, the Court below uses its own

post hoc justifications to improperly support the constitu-

tionality of the provision.

Initially, it is important to note that there is no legis-

lative history specifically with respect to the relevant

portion of Section 797j. It is something of a mystery as to

how the final clause of Section 797) ever came into ex-

istence. However, it is known that the Northeast Rail

Service Act itself was part of Public Law 97-35 passed on

August 13, 1981, as part of the Omnibus Budget Reconcilia-

tion Act of 1981. This budgetary act included twenty-

seven titles, only one of which had anything to do with

the railroad industry. Title 11 of this Act ultimately in-

cluded the Northeast Rail Service Act as amended by a

House-Senate Conference Committee on July 29, 1981.

Prior to that Conference Committee report, the Senate

version of the bill (contained in 1981 U.S. Code Congres-

sional Administrative News, pp. 605-633) revealed nothing

which would reflect an intention on the part of the Senate

to pre-empt or abolish state full crew laws or laws pro-

viding for the “phase out” of such full crew laws.

Interestingly, the House version of this section was

contained in what was once known as the Rail Service

Improvement Act of 1981. In fact, the Court below re-

ferred to the House Committee Report in support of the

notion that Congress intended to pre-empt “phase out”

laws. However, the Court conveniently left out the most

important part of that legislative history regarding that

particular provision. In its entirety, the legislative history

states as follows:

“Section 711 preempts any state law, rule, or regula-

tion requiring Conrail, Amtrak, or their commuter

subsidiaries to hire specified numbers of persons for

particular tasks. The Committee specifically intends

to preempt any state full crew laws which require

crews to contain certain numbers or certain provi-

sions, and any state laws which phase out such re-

quirements. Given the dire circumstances of these

rail transportation corporations, such a preemption is

necessary” (Emphasis supplied) H.R. Rpt. Rep. No.

97-153, 97th Congress First Session p. 30 (1981)

Thus, while the Court below took one quote out of

context in support of the notion that Congress intended

to reach “phase out” laws by Section 797}, the Court con-

veniently ignored the fact that the legislative history

implicitly referred to the need for such pre-emption only

with respect to those railroads who were having “dire

9

circumstances.” This is an implicit recognition that Con-

gress intended only to benefit non-profitable railroads with

the pre-emption provision. Nevertheless, the Court below

failed to acknowledge this history and, indeed, took a

quote out of context in order to support the position that

Congress intended otherwise.

The foregoing is the sum total of any legislative his-

tory with respect to the particular clause of Section 797]

here involved. There never has been any identifiable

congressional intention behind the passage of the last

clause of Section 797j. In fact, the foregoing quote from

the Rail Service Improvement Act of 1981 clearly indicates

at least an implicit intention not to benefit profitable

railroads with the pre-emption provision. This incon-

sistency between the implicit history and the ultimate

result clearly makes the validity of the last clause of

Section 797j unreasonable, arbitrary and capricious. This

is particularly true when the last clause of Section 797j

is compared to the stated goals, purposes and objectives

of both the 3-R Act and NRSA.

Set forth in Appendix D are the stated purposes, goals,

findings, and objectives of both the 3-R Act and NRSA.

Review of these statements by Congress clearly demon-

states that the congressional intent behind the 3-R Act was

to establish ConRail and give it numerous economic ad-

vantages in order to make it a viable railroad. Congress

recognized that “essential rail service” in the mid-West

and northeast region was being provided by railroads

which were insolvent and attempting to undergo re-

organization. Consequently, Title 45, U.S.C., Section

701(b) (2) stated that it was the purpose of Congress in

passing the 3-R Act to provide for the “reorganization of

railroads in this region into an economically viable system

capable of providing adequate and efficient rail service

10

to the region.” In rejecting the Co-Op’s argument below,

the Special Court referred to the preservation of “essential

rail service” as stated in Section 701 in support of its

position that Congress somehow intended to promote the

economic well being of all railroads in the relevant area.

This clearly is nothing more than a distorted effort on

the part of the Court to find some justification for a clause

that in fact directly contradicted the objectives of the

statute. The quote “essential rail service” found in Sec-

tion 701, and relied upon by the Court below, was in-

itially stated in Section 701(1) referring to the fact that

“essential rail service’ was being provided by insolvent

and reorganizing railroads. By taking a three word quote

out of the congressional findings, the Court below se-

mantically sidestepped the major thrust of the statute in

favor of a more limited, but self-serving, justification for

upholding the constitutionality of the last clause of Section

797j.

In fact, the Court below completely ignored the stated

goals anc objectives of the Northeast Rail Service Act

set forth in Title 45, U.S.C., Section 1101-1103. These

sections are set forth in their entirety in Appendix D.

Section 1102 specifically states the purpose of Congress in

passing the Northeast Rail Service Act. Of the three rea-

sons listed for the passing of the statute, none of them

relate to profitable railroads. All of them relate to Con-

Rail. The goals and objectives set forth in Section 1103

of the Northeast Rail Service Act also clearly relate to

ConRail and its employees. It is of particular importance

to note that Section 1103(4) directs ConRail to enter into

collective bargaining agreements with its employees to

reduce ConRail’s costs by over two million dollars. Never-

theless, the Court below failed to even acknowledge these

stated purposes of the Northeast Rail Service Act which

gave rise to Section 797].

11

Thus, it is very clear from the foregoing explicit goals

and purposes of these statutes that the last clause of

Section 797j is in no way related to any of those stated

purposes or objectives. Quite to the contrary, the only

legislative history regarding pre-emption of full crew laws

indicates that Congress intended for the benefit of that

pre-emption to go to ConRail and not to other profitable

railroads in the region. As such, the foregoing clause of

Section 797j is unreasonable, arbitrary and irrational and

should be held to violate the due process clause of the

Fifth Amendment to the Constitution.

The Co-Op also believes that Section 797j violates

the equal protection component of the Fifth Amendment.

Obviously, there are a number of classifications of the

employees affected by the legislation in this case. First,

and perhaps most obvious, is that ConRail’s employees are

by the very nature of the 3-R Act and the Northeast

Rail Service Act given special treatment and benefits that

other railroad employees do not obtain. These benefits

are given in return for sacrifices made by the employees

both in terms of their wages and in terms of whether

or not they will be terminated by the corporation. Without

question there is a rational basis for Congress to separate

the ConRail employees from all other railroad employees

and treat them differently within the confines of the pur-

poses and objectives of these statutes. Again, the basis

for congressional action in this regard is either the profit-

ability of ConRail, or its ultimate dismantlement.

However, the classification of employees under the last

clause of Section 797j is not substantiated by such a ra-

tional basis for discrimination. Essentially, there are two

classifications at issue here. First, N&W employees are

discriminated against since they will have to give up

jobs, seniority rights, vacation or fringe benefits due to

12

the abolishment of Section 4999.20 in Ohio. The only

basis for this is that Ohio is one of the states in which

Section 797j allegedly applies. See the definition of

“region” in Title 45, U.S.C., Section 702(17). Indeed,

any state not within the region can presumably pass a

full crew law which is totally unaffected by Section 797j,

therefore, allowing employees of other “nonregion” rail-

roads to have the full benefits of such laws. While such

discrimination makes sense when the purpose is to protect

and aid in the viability of ConRail, there is no rational

basis in protecting and aiding already profitable railroads

and giving them the same cost reductions as have been

permitted to ConRail.

Again, the findings and goals of these statutes clearly

indicate the efforts by Congress to turn non-profitable

railroads into competitive profitable railroads by federal

mandate. However, there is no rational basis for dis-

criminating against profitable railroad employees within

the region and profitable railroad employees outside of

the region for any reason.

Additonally, Section 797j discriminates against N&W

employees working within the “region” vis-a-vis other

N&W employees who are working outside of the region.

Obviously, states not within the region can pass mandatory

full crew laws to benefit and protect employees of railroads

in those states. Further, with the number of large rail

mergers that have occurred in the recent past, most notably

the N&W-Southern merger, employees of the states not

within the region could easily be protected by such laws

while the employees of the very same railroad working

within the region would be deprived of that protection.

Again, this type of discriminatory classification only makes

sense when the intent of the discrimination is to aid a

railroad in financial trouble and to which Congress has

already invested enormous sums of money.

13

Consequently, because the last clause of Section 797j

invidiously and irrationally discriminates against em-

ployees of profitable railroads within the region for no

rational reason, this provision violates the equal protection

component contained in the due process clause of the Fifth

Amencment to the United States Constitution. As such,

this clause should be invalidated.

Recently, in the case of United States Railroad Re-

tirement Board v. Fritz, 101 S, Ct. 453 (1980), Justices

Brennan and Marshall dissented from the Court’s af-

firmance of the constitutionality of the grandfather pro-

vision of the 1974 Railroad Retirement Act. That dissent

tellingly points out the tautological approach favored by

courts today in reviewing the constitutionality of social

and economical legislation. In essence, Justice Brennan

suggested that closer scrutiny and analysis must be made

of congressional economic legislation if the due process

clause of the Fifth Amendment is to have any significant

meaning in that regard. If the Court merely relies on

the language of the statute and presumes that Congress

intended to do what in fact it did, every statute, no matter

how arbitrary or irrational, would have to be upheld

against constitutional attack. However, as Justice Brennan

pointed out, the Court should first deduce the independent

objectives of the statute from the statements of purpose

and other evidence in the statute and legislative history,

and then determine whether the challenged provision is

rationally related to those objectives. In other words,

this Court must look for more than any conceivable basis

upon which it can base a finding that the provision is

rationally related to the objective. If any conceivable basis

will suffice, then attorneys and lower courts need only

go so far as to state post hoc that Congress intended to

do what it said because the language of the statute says so.

14

When a statute fails to have any legislative history

to support a provision of it and where that provision

purports to resolve a problem that could not successfully

be resolved for over twenty years, and where the purported

resolution of the problem flies in the face of the stated

goals, objectives and purposes of the statute, then the

time has come for this Court to do more than superficially

affirm the designed justifications of the court below used

to sustain the constitutionality of the provision involved.

This case is a clear case where the Court can decide

whether it wishes to continue the tautological approach

of the past and affirm economic legislation without

scrutinizing its content, or to return some meaning to

the term “rational basis,” and invalidate a provision that

has no support in legislative history and no support from

the stated goals and purposes of the statute. The Co-Op

believes that the latter path is the proper path for this

Court to follow.

CONCLUSION

On the basis of the foregoing, the Co-Op requests that

this Court grant the petition for a writ of certiorari.

Respectfully submitted,

C. RICHARD GrigsER, Counsel of Record

Mark A. ADAMS

Grieser, SCHAFER, BLUMENSTIEL & SLANE

Co., L.P.A.

261 West Johnstown Road

Columbus, Ohio 43230

Telephone: (614) 475-9511

Attorneys for Petitioner

Al

APPENDIX A

Opinion of Special Court, Regional Rail

Reorganization Act

(Filed March 29, 1984)

C.A. No. 83-2

SPECIAL COURT

REGIONAL RAIL REORGANIZATION ACT OF 1973

§ 1152 Panel

NORFOLK AND WESTERN RAILWAY COMPANY,

Plaintiff,

Vv.

PUBLIC UTILITIES COMMISSION OF OHIO, et al.,

Defendants,

and

THE CO-OPERATIVE LEGISLATIVE COMMITTEE,

RAILROAD BROTHERHOODS AND RAILROAD

UNIONS, STATE OF OHIO,

Intervenor.

MEMORANDUM OPINION

This action is before the court on plaintiff Norfolk and

Western Railway Company’s (“N & W”) motion for sum-

mary judgment on the grounds of federal preemption. The

principle issue in this case is whether § 4999.20 of the Ohio

Revised Code (“Section 4999.20”) is preempted by § 711

of the Regional Rail Reorganization Act of 1973 (“3R Act”),

as amended by the Northeast Rail Service Act of 1981

(“NRSA”), 45 U.S.C. § 797j (“Section 711”).

A2

N & W contends that § 4999.20 is a state full crew law

of the type preempted by § 711, that § 711 applies to

N & W’s operations in Ohio and that this court has original

and exclusive [2] jurisdiction over the interpretation of

§ 711 pursuant to Section 1152(a) of NRSA, 45 U.S.C. §

1105(a). In its complaint, N & W seeks both an injunction

restraining defendants Public Utilities Commission of Ohio,

its Chairman and a Commissioner (“PUCO”) from en-

forcing § 4999.20 against N & W and a declaration that §

711 preempts the enforcement of § 4999.20 against N & W.

PUCO, on the other hand, argues that interpretation of

§ 4999.20 is a question of state law and that until it deter-

mines that § 4999.20 is applicable to N & W, the issue is not

ripe for summary judgment. In addition, PUCO main-

tains that Congress intended that § 711 preempt state full

crew laws only with regard to Conrail. Intervenor, the

Co-Operative Legislative Committee, Railroad Brotherhoods

and Railroad Unions, State of Ohio (“Co-Op”), maintains

that § 4999.20 is not the type of statute that § 711 preempts

but to the extent that § 711 does preempt § 4999.20, it is

a violation of the fifth amendment. For the reasons stated

below, the plaintiff’s motion for summary judgment is

granted.

Background

N & W brought this action in response to commence-

ment of formal proceedings by PUCO to enforce § 4999.20

against N& W. The PUCO proceedings began as a result of

letters of complaint directed to PUCO by Co-Op on October

27, 1982 and by the Brotherhood of Railroad Engineers,

Ohio Legislative Board (“BLE”) on October 30, 1982.’

The substance of those complaints was that N & W violated

§ 4999.20 on two occasions by operating trains [3] without

1. Affidavit of Mark D. Perreault, October 31, 1983 (‘Per-

reault Affidavit’) at { 3 and Attachments 1 and 2.

A3

a fireman when firemen with seniority dates adequate

to invoke the protection of § 4999.20 were available for

employment. Section 4999.20, the successor to Ohio’s full

crew law, provides:

No railroad employee who has a seniority roster date

on the effective date of the repeal of Sections 4999.07

and 4999.08 of the Revised Code shall be removed from

his employment or have his seniority rights or vacation

or other fringe benefits reduced by reason of such re-

peal. Any carrier which violates this Section shall be

fined not less than $100 nor more than $5,000.00. The

Public Utilities Commission shall enforce this Section

and prosecute any violations thereof. [Ohio Rev. Code

§ 4999.20.)

Pursuant to its rules,? PUCO investigated the com-

plaints and subsequently held an informal conference

among the parties on January 13, 1983, in an attempt to

settle the dispute. The parties were “unable to reach

agreement” on the complainants’ claims that the firemen

were entitled to employment on the N & W trains in ques-

tion.*

On January 26, 1983, PUCO issued orders commenc-

ing formal proceedings against N & W and ordering N & W

to answer the Co-Op [4] and BLE complaints within 15

days.‘ In response to a request for an extension of time

2. Under Chapter 4907 of the Ohio Revised Code, PUCO is

charged with the responsibility of regulating intrastate railroads

and of inquiring “into any neglect or violation of the laws of

this state by a railroad doing business in this state”. See Ohio

Rev. Code 5 4907.08. After conducting an investigation, PUCO

must hold a conference in an attempt to informally resolve the

dispute. Rule 4901-5-20(A)(1) of the Code of Rules and Regu-

lations of the Public Utilities Commission of Ohio.

3. Perreault Affidavit at ©" 6 and Attachments 7 and 8.

4. Attachments 9 and 10 to Perrault Affiievit.

A4

by N & W, the time within which to answer was ex-

tended until February 25, 1983.5 N & W filed its com-

plaint in this court on February 25, 1983 and at the

same time, filed with PUCO a motion to stay the PUCO

proceedings. On March 22, 1983, PUCO filed a motion to

dismiss contending that this court did not have jurisdiction

over the matter and was without power to enjoin proceed-

ings before PUCO. The court denied PUCO’s motion to

dismiss on May 25, 1983, finding that PUCO’s particular

contention with regard to this court’s jurisdiction was

“plainly wrong.” The court did not address the issue of its

power to enjoin the PUCO proceedings at that time and

the PUCO proceedings continued.

There was no further action in the PUCO proceedings

until October 5, 1983, when PUCO denied N & W’s motion

to stay and ordered the parties to submit briefs addressing

the issue of whether PUCO had jurisdiction to proceed in

the case. In addition, the parties were directed to discuss

“|. , assuming arguendo that the Commission lacks juris-

diction to proceed in this case, whether Section 4999.20,

Ohio Revised Code is compatible with pertinent provisions

of the 3-R Act and NERSA or whether Section 4999.20 is

fatally inconsistent.”* At the request of the intervenor

Co-Op, the date for filing of the briefs before PUCO was

extended until January 7, 1984. On November 2, 1983,

N & W [5] moved for summary judgment in this court and

on December 7, 1983, N & W filed a motion for a pre-

liminary injunction. In response to N & W’s motion for a

preliminary injunction, this court issued an order on De-

cember 22, 1983 in which we stayed the proceedings before

PUCO pursuant to § 209(g) of the 3R Act, 45 U.S.C.

§ 719(g), to preserve this court’s original and exclusive

5. Attachment 11 to Perreault Affidavit.

6. Attachment 13 to Perreault Affidavit.

A5

jurisdiction to interpret any provision of NRSA pursuant

to § 1152(a) of NRSA.

This case involves the interpretation of § 711 which is

titled “Preemption” and provides:

No State may adopt or continue in force any law,

rule, regulation, order, or standard requiring the Cor-

poration, the National Railroad Passenger Corpora-

tion, or the Amtrak Commuter Services Corporation to

employ any specified number of persons to perform

any particular task, function, or operation, or requiring

the Corporation to pay protective benefits to em-

ployees, and no State in the Region may adopt or con-

tinue in force any such law, rule, regulation, order, or

standard with respect to any railroad in the Region.

[45 U.S.C. § 797j.|

Di

As a preliminary matter, PUCO argues that this case

is not ripe for summary judgment because the issue of

whether § 4999.20 can be interpreted in a manner con-

sistent with § 711 is one of state law which must be de-

cided by PUCO pursuant to its statutory duties.’ PUCO

maintains that there is no issue upon which this [6] court

may reach a decision, until PUCO has determined that

§ 4999.20 is not preempted by § 711 and is applicable to

N & W. In support of its argument, PUCO cites to a

number of cases involving the doctrine of ripeness as ap-

plied to review of administrative agency decisions; these

cases are inapposite.

PUCO’s ripeness argument overlooks both the nature

of this proceeding as well as the express language of

NRSA. Section 1152(a) of NRSA provides that: “Notwith-

7. See note 2, supra.

A6

standing any other provision of law, the special court shall

have original and exclusive jurisdiction over any civil ac-

tion for injunctive, declaratory, or other relief relating to

the enforcement, operation, execution or interpretation of

any provision of or amendment...” of NRSA. (Emphasis

added). In this case, the court is not asked to review

PUCO’s interpretation of a state statute or its enforcement

decision pursuant to state law. On the contrary, as this

court recognized in its order of May 25, 1983 denying

PUCO’s motion to dismiss and in its order of December 22,

1983 staying the PUCO proceedings until further order of

this court, this action involves the interpretation of § 711

and is clearly within this court’s original and exclusive

jurisdiction pursuant to § 1152(a) of NRSA.

Having determined that this court has jurisdiction to

decide this case, we now turn to the pivotal issue—whether

§ 711 preempts § 4999.20. As a threshold matter, we must

determine whether § 4999.20 is a full crew statute of the

kind preempted by § 711. N & W maintains § 4999.20

is such a statute and PUCO does not seem to dispute this

conclusion. Intervenor Co-Op, however, [7] admits that

§ 4999.20 is the successor statute to Ohio’s full crew law but

argues that it simply maintains the employees’ seniority

rights and vacation and other fringe benefits rather than

specifying any particular number of persons to perform

any specific tasks as prohibited by § 711.

Co-Op’s argument is without merit. Section 4999.20

provides that no employee who has a seniority roster date

on the date of the repeal of Ohio’s full crew laws® “shall be

removed from his employment or have his seniority rights

or vacation or other fringe benefits reduced by reason of

8. Ohio’s full crew laws required a minimum crew of five

on freight trains and switch engines. 1919 Ohio Laws Vol. 8,

I. In 1972, these laws were repealed and replaced with

§ 4999.20.

AT

such repeal.” (Emphasis added). Section 711 prohibits

states from continuing in force any law regarding em-

ployment of “any specified number of persons to perform

any particular task, function, or operation” or which re-

quires payment of “protective benefits to employees.” The

House Committee Report on a predecessor bill with a pro-

vision substantially similar to § 711 states that “(t]he Com-

mittee specifically intends to preempt any state full crew

laws which require crews to contain certain numbers or

certain positions, and any state laws which phase out such

requirements.” Rail Service Improvement Act of 1981:

House Comm. on Energy and Commerce, H.R. Rep. No.

97-153, 97th Cong., 1st Sess. 30 (1981) (emphasis added).

The fact that § 4999.20 makes it unlawful for a railroad to

remove employees with certain seniority rights from their

jobs as well as the fact that it is the successor statute to

Ohio’s [8] full crew laws makes clear that § 4999.20 is a

state law intended to “phase out” the requirements of a

state full crew law. As such, § 4999.20 is the type of statute

that Congress specifically intended § 711 to preempt.

PUCO argues that, notwithstanding this conclusion,

§ 711 was enacted to apply solely to Conrail and that

Congress’ intent was not to preempt state statutes such

as § 4999.20 as applied to “profitable railroads.” In arguing

that § 711 appiies to all railroads, N & W relies on the

plain language of § 711. The dispute regarding whether

§ 711 applies to railroads other than Conrail arises from

the last clause of § 711. While the first part of § 711

relieves Conrail of the burden of state full crew laws, the

final clause duplicates the relief “with respect to any

railroad in the Region.” (Emphasis added).

The starting point for determining whether a federal

statute preempts a state law is to “ascertain Congress’

intent in enacting the federal statute at issue.” Shaw

A8

v. Delta Airlines, Inc., 103 S. Ct. 2890, 2899 (1983). It

is a fundamental rule of statutory construction that one is

to look first at the language of the statute. Dickerson

v. New Banner Institute, Inc., 103 S. Ct. 986, 990 (1983)

(citing authorities).

In this case, it is hardly necessary to do more. The

language of § 711 is unequivocal. It expressly extends

the prohibition against state enforcement of full crew laws

to “any railroad in the Region.” The term “Region” in-

cludes the State of Ohio,® and the term “railroad” clearly

applies to N & W."° Moreover, because the first part of

§ 711 specifically mentions [9] Con..’ the last clause

would be superfluous if Congress did nut intend that § 711

apply to railroads other than Conrail.

Ordinarily where, as here, the language of a statute

is unambiguous, “it is to be regarded as conclusive unless

there is ‘a clearly expressed legislative intent to the con-

trary.” Dickerson, 103 S. Ct. at 990, quoting Consumer

Product Safety Commission v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980). PUCO asks this court to disregard

the plain language of § 711 because, PUCO argues, in-

cluding profitable railroads within the reach of § 711 is

9. “Region,” as defined by § 102(17) of the 3R Act,

“means States of Main, New Hampshire, Vermont, Massachu-

setts, Connecticut, Rhode Island, Nev’ York, New Jersey, Penn-

sylvania, Delaware, Maryland, Virginia, West Virginia, Ohio,

Indiana, Michigan, and Illinois; the District of Columbia; and

those portions of contiguous States in which are located rail

properties owned or operated by railroads doing business pri-

marily in the aforementioned jurisdictions (as determined by

the Commission by order).” 45 U.S.C. § 702(17).

10. “Railroad” is defined by § 102(15) of the 3R Act as

“a common carrier by railroad as defined in section 1(3) of

part I of the Interstate Commerce Act (49 U.S.C. 1(3)). The

term includes the Corporation and the National Railroad Pas-

senger Corporation.” 45 U.S.C. § 702(15). N & W is a common

carrier by railroad as defined in 49 U.S.C. § 10102, the successor

statute to 49 U.S.C. § 1(3). PUCO incorrectly reads § 102(15)

as including only the Corporation and the Nationa] Railroad

Passenger Corporation; its reading is underinclusive.

Ag

inconsistent with the stated purpose of the 3R Act and

NRSA, which was to make Conrail economically viable.

PUCO argues that by applying § 711 to all railroads, costs

would be reduced throughout the industry, thus preventing

Conrail from achieving a profitable rail system.

The application of § 711 to § 4999.20 with respect to

N & W, as clearly mandated by the language of § 711 is

not contrary to [10] the purpose of the 3R Act and NRSA.

The legislative goal was to give Conrail the opportunity

to become profitable, but not necessarily to disadvantage

all other railroads at the same time. ln fact, Congress

has clearly stated that “[a] balanced and competitive

transportation system is essential to the entire country”

and that activities associated with the railroad reorganiza-

tion should “not harm the delicate competitive balance

of the transportation system of the country.” H.R. Rep.

No. 97-153, 97th Cong., Ist Sess. 9 (1981).

We have not found nor have we been directed to any

legislative history specifically addressing why the last

clause of § 711 was added. This absence of legislative

history shows no more than, perhaps, that the last clause

was added at the eleventh hour. This court is not at

liberty to create legislative history where none exists nor

to ignore the express language of a statute merely because

of a lack of legislative history. What NRSA’s legislative

history does reflect, however, is Congress’ recognition of

the problem of overmanning (“particularly in the con-

tinued use of fireman [sic]”) and of the need for changes

in “technologically obsolete” crew consist requirements."

11. Northeast Rail Service Act of 1981: Hearings on S. 1100

Before the Subcom. on Surface Transportation of the Senate

Comm. on Commerce, Science, and Transportation, 97th Cong.,

lst Sess. o81-82 (1981). Congress’ concern was that until rail-

roads were —— < requirements specifying the minimum

— > ome wee of personnel that must be on board every

train operating fo costs age continue to increase and productivity

Al0

Moreover, this court as well as the Supreme Court, has

recounted the history of the persisteut effort on the part

of the nation’s railroads to [11] cut back on unnecessary

crew members, including firemen and brakemen.”

The Supreme Court has noted that “[p]Jreemption

may be either express or implied, and ‘is compelled

whether Congress’ command is explicitly stated in the

statute’s language or implicitly contained in its structure

and purpose.’” Shaw, 103 S. Ct. at 2899, quoting Jones

v. Rath Packing Co., 430 U.S. 519, 525 (1977). In this

case, Congress’ intent to preempt is explicitly stated in

§ 711 and this court “must give effect to this plain lan-

guage unless there is good reason to believe Congress

intended the language to have some more restrictive mean-

ing.” Id. at 2901 (citing authorities). Based upon the

foregoing, we perceive no indication that Congress intended

that § 711 be given a more restrictive reading than that

which we give it in this case. Thus, by holding that

§ 711 preempts § 4999.20 with respect to N & W, we

merely give effect to the unambiguous language of §

711.

Intervenor Co-Op challenges the constitutionality of

the last clause of § 711 as violative of both the due

process and equal protection components of the fifth

amendment.* It is important to note at the outset that

Congress has authority under the Commerce Clause to

“allocate the interlocking economic rights and [12] duties

12. See United Transportation Union v. Consolidated Rail

Corp. (“Cannon”), 535 F. Supp. 697, 710 (Regional Rail Reorg.

Ct. 1982), cert. denied, 102 S. Ct. 960 (1982), citing Chicago &

N.W. R. Co. v. United Transportation Union, 402 U.S. 570, 573

(1971) (citing authorities).

13. It appears that Co-Op has abandoned its claim, as alleged

in its answer, that § 711 is unconstitutional as against the tenth

amendment.

All

of employers and employees.” Cannon, 535 F. Supp. at

709 (citing authority).

Co-Op maintains that § 711 violates due process be-

cause relieving railroads other than Conrail of the economic

burden of state labor protection requirements is not ration-

ally related to the sole objective of the 3R Act and NRSA

which was to give Conrail economic advantages. Co-Op

errs, however, in assuming that Congress had only one

goal when it enacted the 3R Act and NRSA. On the

contrary, one of the stated purposes of this legislation

was the preservation of “essential rail service” in the

Northeast and Midwest regions. 45 U.S.C. § 701. Section

711 is rationally related to that purpose because it promotes

the economic well-being of all railroads in the relevant

area. Thus, we cannot conclude that when Congress en-

acted § 711, it “acted in an arbitrary and irrational way.”

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976).

Co-Op also argues that § 711 violates equal protection

because N & W employees working in the Region are

denied the protection of state full crew laws by virtue

of § 711 while their counterparts working in states out-

side of the Region may invoke the benefits of any full

crew law their states choose to enact. This court has

recognized that “[a]pplication of the equal protection con-

cept to invalidate economic regulation is quite restricted.”

Cannon, 535 F. Supp. at 708. Where, as here, the alleged

classification affects no fundamental rights and works no

invidious discrimination, the sole duty of a court is to

determine thet the statute which creates the classification

is a “rational [1%] way to correct” a perceived problem.

Id. As we discuss above, § 711 is indeed a rational

way to deal with the problem of maintaining essential

rail service in the Region. Accordingly, Co-Op’s equal

protection challenge must also fail.

Al2

Conclusion

“It is well established that within Constitutional lim-

its Congress may preempt state authority by so stating

in express terms.” Pacific Gas and Electric Co. v. State

Energy Resources Conservation & Development, 103 S.

Ct. 1713, 1722 (1983). This is precisely what Congress

did when it enacted § 711; plaintiff is entitled to sum-

mary judgment. While a declaration that § 711 preempts

enforcement of § 4999.20 against N & W is appropriate,

the court does not believe it is necessary at this time

to issue an injunction in order to enforce its mandate

and dissolves its stay entered December 22, 1983.

/s/ OLIver GASCH

Presiding Judge

/s/ WrLLtaAM B. BRYANT

Judge

/s/ CHARLES R. WEINER

Judge

Al3

APPENDIX B

Order of Special Court Staying Proceedings Before

Public Utilities Commission of Ohio

(Filed December 22, 1983)

C.A. No. 83-2

SPECIAL COURT

REGIONAL RAIL REORGANIZATION ACT OF 1973

§1152 Panel

NORFOLK AND WESTERN RAILWAY COMPANY,

Plaintiff,

v.

PUBLIC UTILITIES COMMISSION OF OHIO, et al.,

Defendants,

and

THE CO-OPERATIVE LEGISLATIVE COMMITTEE,

RAILROAD BROTHERHOODS AND RAILROAD

UNIONS, STATE OF OHIO,

Intervenor.

ORDER STAYING PROCEEDINGS BEFORE PUBLIC

UTILITIES COMMISSION OF OHIO

Now before the Court is the motion of plaintiff Nor-

folk and Western Railway Company (“N&W’’) for a pre-

liminary injunction. In determining whether to grant the

motion the Court has considered the memoranda of the

parties and the procedural history of this action. The

complaint seeks both an injunction restraining defendant

Al4

Public Utilities Commission of Ohio, its Chairman and

a Commissioner (collectively “PUCO”’) from enforcing

§4999.20 of the Ohio Revised Code against N&W and

a declaration that §711 of the Regional Rail Reorganiza-

tion Act of 1973 (“RRRA”) pre-empts the enforcement

of §4999.20 against N&W. On March 22, 1983, PUCO

filed a motion to dismiss the complaint arguing that this

Court [2] does not have jurisdiction over this matter

and that the Court is without power to enjoin proceedings

before PUCO. On May 25, 1983, the Court denied PUCO’s

motion to dismiss, finding that the particular contention

of PUCO with regard to this Court’s jurisdiction was

“plainly wrong”. In its order denying the motion to dis-

miss the Court did not address the question of its power

to enjoin proceedings before PUCO and those proceedings

have continued. By an entry order dated October 5, 1983,

PUCO denied N&W’s motion for a stay and ordered the

parties to submit simultaneous detailed briefs by November

7, 1983 on

whether this Commission does or does not, in fact

and in law, have the jurisdiction to proceed in the

instant matters. Additionally, the parties should dis-

cuss, assuming arguendo that the Commission lacks

jurisdiction to proceed in this case, whether Section

4999.20, Ohio Revised Code is compatible with perti-

nent provisions of the 3-R Act and NERSA or whether

Section 4999.20 is fatally inconsistent.

At the request of intervenors in this case, The Co-Opera-

tive Legislative Committee, Railroad Brotherhoods and

Railroad Unions, State of Ohio, the date for filing these

briefs before PUCO has been extended to January 7, 1984.

On November 2, 1983, N&W moved for summary judgment

in this Court. That motion has now been fully briefed

and will be scheduled for argument in January 1984.

Al5

The principal task of the Court in this matter is to

interpret §711 which was added to RRRA by §1143 of

the Northeast Rail Service Act of 1981 (“NRSA”), Public

Law 97-35 (August 13, 1983), 95 Stat. 643. The grant

of jurisdiction to interpret any provision of NRSA 1s found

in §1152(a) of NRSA, 42 U.S.C. §1105 (supp.V 1982).

That jurisdiction is both original and exclusive. By the

very language of §1152(a), no other court or [3] adiminis-

trative agency has jurisdiction over actions to interpret

or implement §711. To preserve this jurisdiction, this

Court must now stay the proceedings before PUCO pursu-

ant to §209(g) of RRRA. Although §209(g) does not

refer specifically to administrative bodies, the Court has

previously concluded that this provision may be invoked

to stay proceedings before administrative agencies, state

or federal, when necessary to protect its jurisdiction. Con-

solidated Rail Corp. v. Pittsburgh and Lake Erie RR Co.,

459 F.Supp. 1013, 1018-19 (Sp. Ct. RRRA 1978). The Court

is presently faced with such a need to protect its juris-

diction and must act todo so. Accordingly,

IT IS ORDERED that PUCO shall stay the proceed-

ings entitled, In the Matter of the Complaint Against the

Norfolk and Western Railway Company Filed by the Co-

Operative Legislative Committee, Case No. 83-113-RR-

UNC, and In the Matter of the Complaint Against the

Norfolk and Western Railway Company Filed on Behalf

of the Brotherhood of Railway Engineers, Case No. 83-

114-RR-UNC, until the final disposition of this action

or further order of this Court.

/s/ Ovtver Gascu

Presiding Judge

/s/ WrttuiaM B. Bayant

Judge

‘s/ CHaRLes R. WEINER

Judge

Al6

Order of Special Court Denying Motion of Public

Utilities Commission to Dismiss

(Filed May 25, 1983)

C.A. No. 83-2

SPECIAL COURT

REGIONAL RAIL REORGANIZATION ACT OF 1973

§1152 Panel

NORFOLK AND WESTERN RAILWAY COMPANY,

Plaintiff,

: Vv.

PUBLIC UTILITIES COMMISSION OF OHIO, et al.,

Defendants,

and

THE CO-OPERATIVE LEGISLATIVE COMMITTEE,

RAILROAD BROTHERHOODS AND RAILROAD

UNIONS, STATE OF OHIO,

Intervenor.

ORDER DENYING MOTION OF PUBLIC UTILITIES

COMMISSION OF OHIO TO DISMISS

In this action plaintiff Norfolk and Western Railway

Company (“N&W”) seeks both an injunction restraining

defendants Public Utilities Commission of Ohio, its Chair-

man and a Commissioner (“PUCO”) from enforcing

§4999.20 of the Ohio Revised Code against N&W and

a declaration that §711 of the Regional Rail Reorganiza-

tion Act of 1973, (“RRRA”) pre-empts the enforcement

of §4999.20 against N&W. Section 711 was added to

RRRA by §1143(a) of the Northeast Rail Service Act

of 1981 (“NRSA”), Pub. L. No. 97-35 (August 13, 1981),

Al7

95 Stat. 643. On March 22, 1983, PUCO filed a motion

to dismiss the complaint arguing that this Court does not

have jurisdiction over this matter and that the Court is

without power to enjoin proceedings before PUCO.

(2] The applicable grant of jurisdiction to the Special

Court is to be found in §1152(a) of NRSA. PUCO refers

the Court to the West codification of §1152(a) which

is found at 45 U.S.C.A. §1105(a) (West Supp. 1982). The

West codification speaks of “provision or amendment made

by this chapter” (emphasis supplied). PUCO contends

that since section 711 of RRRA, as codified, appears in

chapter 16 (45 U.S.C. §797}) and §1152, as codified, ap-

pears in chapter 20 (45 U.S.C. §1105) the interpretation

of §711 is beyond this Court’s jurisdiction. This position

is plainly wrong. Both the text of §1152(a), 95 Stat.

676, and the official codification of that section, 45 U.S.C.

§1105 (Supp. V 1982), refer to “provision or amendment

made by this subtitle.” (emphasis supplied). As the refer-

ence in text states “this subtitle” is subtitle E, title XI

($§$1131-1169) of Pub. L. 97-35 (Aug. 13, 1981), 95 Stat.

643, which is known as NRSA. The provisions of NRSA

have been codified in several chapters of the U.S. Code.

See Short Title note, 45 U.S.C. §1101 (Supp. V 1982).

There is no inconsistency between the Statutes at Large

and the U.S. Code. In the event such an inconsistency

exists, the language found in the Statutes at Large must

prevail. Stephen v. United States, 319 U.S. 423, 426 (1943).

PUCO’s reliance on the text of the preliminary West codifi-

cation is misplaced.

PUCO’s other contentions that this Court is without

power to enjoin proceedings before a state administrative

agency, if correct, would not require dismissal of the com-

plaint. N&W requests both injunctive and declaratory

relief. The scope of [3] relief to be granted, if any,

Al8

is not a matter for the Court to determine at this stage

of the proceedings. There will be ample opportunity for

this issue to be more fully briefed at a later date.

Accordingly, for the above reasons, it is this 25th

day of May 1983,

ORDERED that defendants’ motion to dismiss the com-

plaint be, and hereby is, denied.

/s/ OLIver GASCH

Presiding Judge

/s/ WILLIAM B. BRYANT

Judge

/s/ CHARLES R. WEINER

Judge

Alg

APPENDIX C

Order of Special Court to Be Reviewed

(Filed March 29, 1984)

C.A. No, 83-2

SPECIAL COURT

REGIONAL RAIL REORGANIZATION ACT OF 1973

§ 1152 Panel

NORFOLK AND WESTERN RAILWAY COMPANY,

Plaintiff,

Vv.

PUBLIC UTILITIES COMMISSION OF OHIO, et al.,

Defendants,

and

THE CO-OPERATIVE LEGISLATIVE COMMITTEE,

RAILROAD BROTHERHOODS AND RAILROAD

UNIONS, STATE OF OHIO,

Intervenor.

ORDER

For the reasons stated in the accompanying memoran-

dum opinion, it is hereby

ORDERED that the plaintiff's motion for summary

judgment is granted;

DECLARED that Section 711 of the Regional Rail

Reorganization Act of 1973, as amended by the Northeast

Rail Service Act of 1981, preempts the enforcement of

Section 4999.20 of the Ohio Revised Code against plaintiff

Norfolk and Western Railway Company; and

A20

[2] FURTHER ORDERED that plaintiff's request for

a permanent injunction is denied and the stay of proceed-

ings before defendants is dissolved.

/s/ OLIVER GASCH

Presiding Judge

/s/ WiLLtaM B. BrYant

Judge

/8/ CHARLES R. WEINER

Judge

A21

APPENDIX D

United States Code

45 § 701. Congressional declaration of policy

(a) Findings

The Congress finds and declares that—

(1) Essential rail service in the midwest and

northeast region of the United States is provided by

railroads which are today insolvent and attempting to

undergo reorganization under tie Bankruptcy Act [11

U.S.C.A. § 1 et seq.].

(2) This essential rail service is threatened with

cessation or : gnificant curtailment because of the in-

ability of the trustees of such railroads to formulate ac-

ceptable plans for reorganzation. This rail service is

operated over rail properties which were acquired for

a public use, but which have been permitted to de-

teriorate and now require extensive rehabilitation and

modernization.

(3) The public convenience and necessity require

adequate and efficient rail service in this region and

throughout the Nation to meet the needs of commerce,

the national defense, the environment, and the service

requirements of passengers, United States mail, ship-

pers, States and their political subdivisions, and con-

sumers.

(4) Continuation and improvement of essential

rail service in this region is also necessary to preserve

and maintain adequate national rail services and an

efficient national rail transportation system.

A22

(5) Rail service and rail transportation offer eco-

nomic and environmental advantages with respect to

land use, air pollution, noise levels, energy efficiency

and conservation, resource allocation, safety, and cost

per ton-mile of movement to such extent that the

preservation and maintenance of adequate and efficient

rail service is in the national interest.

(6) These needs cannot be met without substan-

tial action by the Federal Government.

(b) Purposes

It is therefore declared to be the purpose of Congress

in this chapter to provide for—

(1) the identification of a rail service system in

the midwest and northeast region which is adequate

to meet the needs and service requirements of this

region and of the national rail transportation system;

(2) the reorganization of railroads in this region

into an economically viable system capable of provid-

ing adequate and efficient rail service to the region;

(3) the establishment of the United States Rail-

way Association, with enumerated powers and re-

sponsibilities;

(4) the establishment of the Consolidated Rail

Corporation, with enumerated powers and respon-

sibilities;

(5) assistance to States and local and regional

transportation authorities continuation of local rail

services threatened with cessation; and

(6) necessary Federal financial assistance at the

lowest possible cost to general taxpayer.

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45 § 797j. Preemption

No State may adopt or continue in force any law,

rule, regulation, order, or standard requiring the Corpora-

tion, the National Railroad Passenger Corporation, or the

Amtrack Commuter Services Corporation to employ any

specified number of persons to perform any particular

task, function, or operation, or requiring the Corporation

to pay protective benefits to employees, and no State in

the Region may adopt or continue in force any such law,

rule, regulation, order, or standard with respect to any

railroad in the Region.

45 § 1101. Congressional findings and declarations

The Congress finds and declares that—

(1) the processes set in motion by the Regional

Rail Reorganization Act of 1973 have failed to create

a self-sustaining railroad system in the Northeast re-

gion of the United States and have cost United States

taxpayers many billions of dollars over original esti-

mates;

(2) current arrangements for the provision of

rail freight and commuter service in the Northeast

and Midwest regions of the United States are inade-

quate to meet the transportation needs of the public

and the needs of national security;

(3) although the Federal Government has pro-

vided billions of dollars in assistance for Conrail and

its employees, the Federal interest in ensuring the

flow of interstate commerce through rail service in

the private sector has not been achieved, and the

protection of interstate commerce requires Federal in-

tervention to preserve essential rail service in the

private sector;

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(4) the provisions for protection of employees

of bankrupt railroads contained in the Regional Rail

Reorganization Act of 1973 have resulted in the pay-

ment of benefits far in excess of levels anticipated

at the time of enactment, have imposed an excessive

fiscal burden on the Federal taxpayer, and are now

an obstacle to the establishment of improved rail ser-

vice and continued rail employment in the Northeast

region of the United States; and

(5) since holding Conrail liable for employee

protection payments would destroy its prospects of

becoming a profitable carrier and further injure its

employees, an alternative employee protection system

must be developed and funded.

45 § 1102. Statement of purpose

It is therefore declared to be the purpose of the Con-

gress in this chapter to provide for—

(1) the removal by a date certain of the Federal

Government’s obligation to subsidize the freight opera-

tions of Conrail;

(2) transfer of Conrail commuter service responsi-

bilities to one or more entities whose principal pur-

pose is the provision of commuter service; and

(3) an orderly return of Conrail freight service

to the private sector.

45 § 1103. Goals and objectives

It is the goal of this chapter to provide Conrail the

opportunity to become profitable through the achievement

of the following objectives:

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(1) Nonagreement personnel

(A) Employees who are not subject to collective

bargaining agreements (hereafter in this section re-

ferred to as “nonagreement personnel’) should forego

wage increases and benefits in an amount proportion-

ately equivalent to the amount foregone by agreement

employees pursuant to paragraph (4) of this section,

adjusted annually to reflect inflation.

(B) After May 1, 1981, the number of nonagree-

ment personnel should be reduced proportionately to

any reduction in agreement employees (excluding re-

ductions pursuant to the termination program under

section 797a of this title).

SUPPLIERS

To facilitate the orderly movement of goods in

interstate commerce, materials and services should

continue to be available to Conrail, under normal busi-

ness practices, including the provision of credit and

normal financing arrangements.

(3) Shippers

Conrail should utilize the revenue opportunities

available to it under the Staggers Rail Act of 1980

and subtitle IV of Title 49.

(4) Agreement employees

(A) Conrail should enter into collective bargaining

agreements with its employees which would reduce

Conrail’s costs in an amount equal to $200,000,000 a

year, beginning April 1, 1981, adjusted annually to

reflect inflation.

(B) Agreements under this subparagraph may

provide for reductions in wage increases and for

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changes in fringe benefits common to agreement em-

ployees, including vacations .nd holidays.

(C) The cost reductions required under this sub-

paragraph in the first year of the agreement may

be deferred, but the aggregate cost reductions should

be no less than an average of $200,000,000 per year

for each of the first three one-year periods beginning

April 1, 1981.

(D) The amount of cost reductions provided un-

der this paragraph shall be calculated by subtracting

the cost of an agreement entered into under this para-

graph from (i) the cost that would otherwise result

from the application of the national agreement reached

by railroad industry and its employees, or (ii) until

such national agreement is reached, the cost which

the United States Railway Association estimates would

result from the application of such a national agree-

ment.

45 § 1105. Judicial review

(a) Special court; exclusive jurisdiction for civil actions

Notwithstanding any other provision of law, the spec-

ial court shall have original and exclusive jurisdiction over

any civil action—

(1) for injunctive, declaratory, or other relief re-

lating to the enforcement, operation, execution, or in-

terpretation of any provision of or amendment made

by this chapter, or administrative action taken there-

under to the extent such action is subject to judicial re-

view;

(2) challenging the constitutionality of any provi-

sion of or amendment made by this chapter;

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(3) to obtain, inspect, copy, or review any docu-

ment in the possession or control of the Secretary,

Conrail, the United States Railway Association, or

Amtrak that would be discoverable in litigation under

any provision of or amendment made by this chapter;

or

(4) seeking judgment upon any claim against the

United States founded upon the Constitution and re-

sulting from the operation of any provision of or

amendment made by this chapter.

(b) Exclusive review by writ of certiorari to the Su-

preme Court

A judgment of the special court in any action referred

to in this section shall be reviewable only upon petition

for writ of certiorari to the Supreme Court of the United

States, except that any order or judgment enjoining the

enforcement, or declaring or determining the unconstitu-

tionality or invalidity, of any provision of this chapter shall

be reviewable by direct appeal to the Supreme Court of

the United States. Such review is exclusive and any peti-

tion or appeal shall be filed not more than 20 days after

entry of such order or judgment.

(c) Scope of review of administrative actions

Administrative action under the provisions of or

amendments made by this chapter which is subject to

review shall be upheld unless such action is found to be

unlawful under standards established for review of in-

formal agency action under paragraphs (2) (A), (B), (C),

and (D) of section 706, Title 5. The requirements of this

chapter shall constitute the exclusive procedures required

by law for such administrative action.

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(d) Assignment of additional judges

If the volume of civil actions under subsection (a) of

this section so requires, the United States Railway Associa-

tion shall apply to the judicial panel on multi-district liti-

gation authorized by section 1407 of Title 28, for the assign-

ment of additional judges to the special court. Within

30 days after the date of such application, the panel shall

assign to the special court such additional judges as may

be necessary to exercise the jurisdiction described in

subsection (a) of this section.

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APPENDIX E

Ohio Revised Code

§ 4999.20 Maintenance of employee rights; pen-

alty.

No railroad employee who has a seniority roster date

on the effective date of the repeal of sections 4999.07

and 4999.08 of the Revised Code shall be removed from

his employment or have his seniority rights or vacation

or other fringe benefits reduced by reason of such repeal.

Any carrier which violates this section shall be fined

not less than one hundred nor more than five thousand

dollars. The public utilities commission shall enforce this

section and prosecute any violations thereof.

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