Reply Brief — CSXT, Inc. v. Pitz

= 3 £4 Se LF

() MAR 7 1990

No. 89-1227 | JOSEPH P. SPANIOL, JR.

RK

—

Supreme Court of the Gnited States

OCTOBER TERM, 1989

CSXT, INC.,

Petitioner,

vs.

JAMES J. PITZ, DIRECTOR OF THE DEPARTMENT

OF TRANSPORTATION OF THE STATE OF MICHIGAN,

NORMA J. FLEMING, ADMINISTRATOR

OF THE RAILROAD SAFETY AND TARIFFS

DIVISION OF THE DEPARTMENT

OF TRANSPORTATION OF THE STATE OF MICHIGAN

and THE DEPARTMENT OF TRANSPORTATION OF

THE STATE OF MICHIGAN

and

UNITED TRANSPORTATION UNION,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

PATRICK E. HACKETT*

CAROL HACKETT

GARAGIOLA

FRASCO & HACKETT, P.C.

1400 N. Woodward Avenue

Suite 205

Bloomfield Hills, MI 48013

(313) 647-6860

SALLY J. KIRCHER

CSXT, INC., Law Department

500 Water Street

Jacksonville, FL 32202

(904) 359-1224

Attorneys for Petitioner

*Counsel of Record

Pandick Midwest, Inc.. Chicago « (312) 733-4000

Lat

.

QUESTIONS PRESENTED

(Petitioner is satisfied that the questions presented in its

Petition fully encompassed its appeal. However, State Re-

spondents’ Brief totally changes the State’s prior position that

the Michigan Department of Transportation’s (MDOT) Rule

requires toilets on locomotives in Michigan. As a result,

Petitioner is compelled to submit the following additional

question. )

V. Whether MDOT, having contended in administrative

proceedings, the District Court and the Court of Appeals that its

Rule requires toilets on locomotives in Michigan, may in this

Court reverse its position and argue that the Rule is subject to

other interpretations which, if true, may defeat Petitioner’s

assertion of a “facially conclusive” preemption challenge.

‘i

TABLE OF CONTENTS

Page

COUT re i iceicciiccnsntsnsvernscnsnntascnctiseneecennisy i

Te a Be ee aticnthrnrewcnretinncerwmintecterencerensicnss ill

STATUTES AND REGULATIONS INVOLVED ............. ill

gg EE a ili

ARGUMENT:

I —MDOT’S RULE 460.1473(a) REQUIRES TOI-

LETS ON LOCOMOTIVES IN MICHIGAN ..... l

II —THE COURT OF APPEAL’S FAILURE TO

ASSESS CORRECTLY THE TOTAL PRE-

EMPTIVE EFFECT OF LBIA AND FRSA AS

TO LOCOMOTIVE EQUIPMENT UNDER

THE UNDISPUTED FACTS OF THIS CASE

VITALLY AND ADVERSELY AFFECTS PE-

TITIONER’S FACIALLY CONCLUSIVE

eg EO ee en 7

III —MDOT’S ADMINISTRATIVE PROCEED-

INGS WERE NOT “JUDICIAL IN

RN a eo Oe 9

CONCLUSION AND RELIEF SOUGHT ........................... 10

APPENDICES

Appendix I:

Rules and Regulations Relating to Sanitation and

Adequate Shelter for Certain Railroad Employees .. A-1

Appendix 2:

Portions of MDOT’s Brief in the U.S. District Court.... B-1

Appendix 3:

Portions of MDOT’s Brief in the Court of Appeals ...... C-1

TABLE OF AUTHORITIES

Page

Detroit & Mackinac Railway Company vs. Michi-

gan Railroad Commission, 235 U.S. 403

Ninel acc Ai cctls a scecladedsesempnenseorsscccretecccees 9

Napier vs. Atlantic Coastline 272 U.S. 605, 47 S.

Ss Fie es MEIN TBI Dar ccinsevccccscscdssccsesocecces 8

Prentis vs. Atlantic Coastline Co. 211 U.S. 210, 20

Be ee Sas BUF 0 BIND Decsccccccntcenccssnereressoses 9

STATUTES AND REGULATIONS INVOLVED

Federal Statutes:

Federal Railroad Safety Act, 45 USC §421, et

TTT ralaidsnhhtheeattasnsatnecibiannierebtdinsnace 8

EEE ae eee 8

State Regulations:

MICH. ADM. CODE, Rule 460.1471 through

EA eR 2

MICH. ADM. PROCEDURES ACT, MCLA

Sec. 24.271-24.282, 24.285-24.287............04+. 9

STATEMENT OF THE CASE

Petitioner’s Statement of the Case is fully set forth at pp. 4-5 of

the Petition.

ARGUMENT

i

MDOT’S RULE 460.1473(a) REQUIRES

TOILETS ON LOCOMOTIVES IN MICHIGAN

Both MDOT and Respondent United Transportation

Union (UTU) recognize that a key issue in this Court’s

granting CSXT’s Petition for Certiorari is whether abstention is

appropriate to a facially conclusive preemption claim. They

now argue that Michigan’s Rule 460.1473(a) is not specific, is

subject to other interpretations and may not apply to locomo-

tives.

This is a total change of position by MDOT. Never, at any

stage of this case, has MDOT denied that its Rule 460.1473(a)

requires toilets on locomotives. MDOT has affirmatively stated

many times in the District Court and the Court of Appeals that

its Rule does require toilets on locomotives. As a result,

Petitioner must reply and supplement its Petition Appendices to

demonstrate the plain meaning of Rule 460.1473(a) and

MDOT’s complete departure from its previous position in this

case up to this time.

In the lower courts, all parties in prior pleadings and br fs

have referred only to one section of Michigan’s rules respecting

sanitation and shelter for railroad employees.

This Section, R-460.1473, states:

Section 3—Running facilities.

(a) Adequate toilet facilities shall be made available for

trainmen, enginemen and yardmen, after hearing

thereon and order by the commission, which toilet

facilities shall be kept in a reasonably clean and

sanitary condition.

Because MDOT never’ before’ challenged that

R460.1473(a) required toilets on all locomotives, nothing more

was needed. MDOT and CSXT knew what the Rule meant

— —_ - _

2

and said so. MDOT’s attempted change of position makes it

now necessary to set out the definitions and other sections

applicable to the Rule. The entire “Rules and Regulations

Relating to Sanitation and Adequate Shelter for Certain Rail-

road Employees” is appended hereto as Appendix A. (MICH.

ADM. CODE, Rules 460.1471 through 460.1481).

“Running facilities” are defined in Section | as sanitation

or shelter facilities on “engines, trains or cabooses”. (Emphasis

added). Engines are locomotives. The terms are used inter-

changeably in these Rules (See Appendix A, p. A-4, Section

3(e)).

Further, the rules are divided into sections clearly describ-

ing the various types of railroad facilities and the sanitation and

shelter requirements for each. “Running facilities” are engines,

trains and cabooses. “Localized facilities” relate to fixed

location duty points. “Crossing watchmen facilities, Camp

facilities” and “Section Houses” are each separately defined

and regulated. (See Appendix A, pp. A-2, A-4, A-5, A-6).

The rules require various and different sanitation items

depending on the nature of the railroad work and facility

defined. For locomotives, toilet facilities are required. This was

clear to MDOT’s Administrative Law Judge when she stated

“Rule 460.1473 is specific and to the point,---” (Petition

Appendix G-18). It was also clear to the District Court Judge "

when he stated that MDOT “argued its position assuming that

enforcement of Rule 460.1473(a) would require equipping

locomotives with commodes.” (Petition Appendix D-3). Fi-

nally, it was clear when the Distnct Court concluded:

Accordingly, this Court determines that the LBIA and the

FRSA each preempt Rule 460.1473(a) insofar as it is

- construed to require commodes on locomotives operating

in Michigan. (Petition Appendix D-10)

In the face of the plain language of the Rule, MDOT’s

administrative action shown in Petition Appendix G and

MDOT?’s prior consistent position throughout this case, it is folly

3

to say to this Court at this time that the Rule may not require

toilets on locomotives. It simply cannot be said that a rule

requiring adequate toilet facilities on engines, trains or cabooses

(i.e. running facilities) can be satisfied by providing toilets “off

the train entirely”. (State Respondent’s Brief, p. 29).

Beyond the Rule itself, this case, from its inception, has

dealt with toilets on locomotives. UTU’s Complaint and

MDOT’s administrative proceedings make this crystal clear.

UTU’s first complaint to MDOT (Petition Appendix G-1

and G-2) complains that the railroad has put into use engines

which are “in violation of the Department’s Rules and Regu-

lations Relating to Sanitation and Adequate Shelter for Certain

Railroad Employees.---These SCL engines do not have

toilets---”. ,

MDOT then gave notice of an inspection based on the

UTU Complaint of alleged violation of the Department’s Rules

and Regulations Relating to Sanitation and Adequate Shelter

for Certain Railroad Employees --- “when SCL engines are put

into use that do not have toilets ---”. The Notice included the

request that the railroad company have SCL locomotives

available for inspection. (Petition Appendix G-3 and G-4).

Next, MDOT issued its Report Transmittal and Report of

Inspection, each under the case heading referring to alleged

violation of the Department’s Rules and Regulations by the

railroad---“‘when SCL engines are put into use that do not have

toilets” etc. The Report of Inspection makes four specific

recommendations:

Therefore the following recommendations are made

and The Chesapeake and Ohio Railway Company shall:

—Upon the first quarterly maintenance of any engine

being used in Michigan, equip same with the proper toilet

facilities and equipment as specified in the Department’s

Rules and Regulations (those conditions being found in

SCL Unit 6667 acceptable);

4

—Provide a copy of its written instructions pertaining to

the installation of the necessary facilities and equipment to

this office within 30 days;

—Provide to this office a written statement as to an

anticipated completion date of work on all engines being

used in Michigan;

—lIn the interim, issue instructions to its employees limiting

the use of any engine not properly equipped to trailing

units only in a yard where toilet facilities are available.

Provide a water cooler with cool water and drinking cups

on same. Send copy of bulletin to this office. (Petition

Appendix G-6—G-10).

MDOT’s Report Transmittal contains the following direc-

tive: =

Written confirmation of compliance to the recommenda-

tions contained in the subject report shall be provided to

this office. (Petition Appendix G-7).

Next, MDOT’s Administrative Law Judge issued a Notice

of Hearing under the following heading:

In the matter of Complaint by the United Transportation

Union and the Brotherhood of Locomotive Engineers of

violation of Michigan Department of Transportation Rule

No. R 460.1473(a) by absence of toilets as sanitary

facilities on CSX Transportation, Inc. locomotives used in

Michigan. (Petition Appendix G-12) 2

Finally, MDOT’s Administrative Law Judge issued an

Order denying CSXT’s Motion to Stay Administrative Proceed-

ings under the same case heading cited above. In that Order

are two statements particularly applicable here:

Rule 460.1473 is specific and to the point, and since it

promotes the health, safety and welfare of the citizens of

this state, its passage and enforcement are well within the

police powers of the State of Michigan. (Petition Appen-

dix G-18 and G-19).

The specific Rule involved in this action does not relate to

the mechanical operation of a locomotive nor to any

5

appurtenances, but to sanitary facilities normally available

to travelers and not available on the route taken by

railroads. (Petition Appendix G-19). (emphasis added ).

The conduct and writings of UTU and MDOT in these

administrative proceedings speak volumes. The Rule requires

toilets on locomotives and both UTU and MDOT were deter-

mined to have toilets on all CSXT locomotives used in Michi-

gan.

To summarize, the Union complained that some CSXT

locomotives in Michigan did not have toilets. Based on the

Complaint, MDOT held an Inspection and recommended that

CSXT shall equip, with proper toilet facilities and equipment,

as specified in MDOT’s rules and regulations, any engine being

used in Michigan. MDOT further required that CSXT provide

it with written instructions pertaining to the installations, a

written statement as to the anticipated completion date of work

on all engines being used in Michigan and that CSXT issue

instructions to its employees limiting the use of any engine not

properly equipped. MDOT required written confirmation of

compliance with those recommendations. MDOT’s Adminis-

trative Law Judge commenced a formal proceeding on the

UTU Complaint of violations of MDOT’s Rule 460.1473(a) by

absence of toilets as sanitary facilities on CSXT locomotives in

Michigan.

After all this, we are now told by MDOT (as well as by

UTU) that this Rule does not require toilets on locomotives.

Indeed, we are told that it may relate to toilets along the tracks

and off the train entirely. It is ciear from the administrative

proceedings, that until abstention became an issue and with it

the threat to Respondents of a “facially conclusive preemption

claim”, both MDOT and UTU, along with CSXT, were sati

fied that Michigan’s Rule required toilets on ail locomotives.

if any doubt at all remains as to MDOT’s interpretation of

the Rule, CSXT has attached hereto as Appendix B and

Appendix C portions of briefs filed by MDOT in the District

6

Court and in the Court of Appeals. In the District Court brief,

under INTRODUCTION AND SUMMARY OF ARGU-

MENT, are found the following two statements:

The State of Michigan, Department of Transportation,

requires railroads to make available on their locomotives

adequate toilet facilities for the health and welfare of their

trainmen, enginemen and yardmen.

In the case at bar, the State of Michigan has acted to

further railroad safety and to promote the health and

welfare of its citizens by adopting a rule requiring toilets on

locomotives. (Appendix B, p. B-2).

On the last page of this brief, under CONCLUSION AND

REQUEST FOR RELIEF is the following statement:

Rule 460-1473( 1) requiring twilets on iocomotives relates

to railroad safety. (Appendix B, p. B-4).

Similarly, in its Brief of Defendants-Appellants filed with

the Sixth Circuit Court of Appeals, MDOT again affirmatively

and without equivocation restated its position that its Rule

required toilet facilities on locomotives. In the TABLE OF

CONTENTS (Appendix C, p. C-2) MDOT’s arguments are

entitled as follows:

L

MICHIGAN’S RULE REQUIRING TOILET FA-

CILITIES ON LOCOMOTIVES IS NOT PREEMP-

TED BY THE FEDERAL RAILROAD SAFETY

ACT BECAUSE NO FEDERAL RULE HAS BEEN

ADOPTED COVERING THE SAME SUBJECT

MATTER

MICHIGAN'S RULE REQUIRING TOILET FA-

CILITIES ON LOCOMOTIVES IS NOT PREEMP.-

TED BY THE BOILER INSPECTION ACT BE-

CAUSE THE BOILER INSPECTION ACT DOES

NOT APPLY TO SANITARY FACILITIES AND

BECAUSE THERE IS NO FEDERAL RULE COV-

ERING THE SAME SUBJECT MATTER

7

The first sentence of the brief states:

This case is an appeal from the United States District

Court’s entry of a permanent injunction restraining the

Michigan Department of Transportation (hereinafter re-

ferred to as the “Department” ) from enforcing its adminis-

trative rule requiring adequate sanitary facilities on

locomotives and a judgment declaring Michigan's rule

preempted by federal law. (Appendix C, p. C-6).

After STATEMENT OF FACTS is found: ~

1. The Michigan Department of Transportation's Rule

was duly promulgated and requires railroads to make

available on their locomotives adequate sanitary facil-

ities for the health and welfare of their trainmen,

enginemen and yardmen. (Appendix C, p. C-10).

At the end of the brief, under CONCLUSION AND

REQUEST FOR RELIEF, MDOT says:

Rule 460.1473(1) requiring toilets on locomotives

relates to railroad safety. (Appendix C, p. C-13).

Based on the foregoing, Petitioner asks this Court to hold

Respondent MDOT to its established position that its Rule

requires toilets on locomotives in Michigan. This done, Peti-

uioner’s preemption claim remains facially conclusive and

abstention is not warranted.

THE COURT OF APPEAL’S FAILURE TO ASSESS

CORRECTLY THE TOTAL PREEMPTIVE EFFECT OF

LBIA AND FRSA AS TO LOCOMOTIVE EQUIPMENT

UNDER THE UNDISPUTED FACTS OF THIS CASE

VITALLY AND ADVERSELY AFFECTS PETITIONER'S

FACIALLY CONCLUSIVE PREEMPTION CLAIM

Both UTU and MDOT would have this Court ignore two

holdings of the Court of Appeals as irrelevant and related to

preemption rather than abstention. Those holdings were vital

to the Court of Appeal’s ultimate application of Younger

abstention to Petitioner’s preemption claim.

First, the Sixth Circuit held that “(t]he Act [LBIA, 45

USC §22-43] does not prohibit concurrent state regulation or

purport to occupy the field of railroad [regulation].” (Empha-

sis added). Next, the Court held that the Federal Railroad

Safety Act (FRSA), 45 USC §421-44, allows limited concurrent

state regulation. (Petition Appendix B, p. B-4). Obviously,

one cannot present a facially conclusive preemption claim if the

involved federal law permits concurrent state regulation of the

same subject.

The problem with the Court of Appeals finding here is that

the LBIA regulates only locomotive equipment and does

prohibit concurrent state regulation of locomotive equipment.

(See Napier vs. Atlantic Coastline, 272 US 605, 47 S. Ct. 207,

71 L. Ed. 432 (1926), and cases cited in the Petition, pages 6, 7

and 8).

This same reasoning applies to the Circuit Court’s treat-

ment of FRSA. Obviously, FRSA does allow state regulation

until the Secretary of Transportation has adopted a rule,

regulation, order or standard covering the subject matter of the

State requirement. When the “subject matter” has been

covered by such a federal rule, FRSA does prohibit concurrent

statewide regulation. Petition Appendix E, the Federal Rail-

road Administration Locomotive Safety Standards, are the

federal rules covering the subject matter of Michigan's Rule

requiring toilets on locomotives. (See Petition, p. 11).

Once the Court of Appeals incorrectly concluded that there

was room for concurrent state regulation of locomotive equip-

ment under both the LBIA and FRSA, there was no need for it

to consider whether Younger abstension should apply to a

facially conclusive preemption claim.

The Circuit Court’s incorrect assessment of the total pre-

emptive effect of LBIA and FRSA in this case must be corrected

before this Court can determine whether the Sixth Circuit erred

in finding Younger abstention appropriate here.

—eGSO~™EO

9

MDOT’S ADMINISTRATIVE PROCEEDINGS WERE

NOT “JUDICIAL IN NATURE”

Both Respondents’ argue that Michigan’s constitutional

separation of powers does not prevent MDOT’s administrative

proceedings from rising to the level of “judicial in nature”. The

provisions of Michigan’s Administrative Procedures Act

(MCLA §24.271-24.282, 24.285-24.287) do not change the fact

that MDOT is expressly denied judicial powers by Michigan’s

Constitution. Respondents’ reliance on Prentis vs. Atlantic

Coastline Company, 211 US 210, 29 S. Ct. 67, 53 L. Ed. 150

(1908), fails. The state agency in Prentis was the Virginia State

Corporation Commission which, under Virginia law, was vested

with both legislative and judicial powers. Such is not the case

with MDOT.

Finally, both MDOT and UTU ignore Detroit & Mackinaw

Railway vs. Michigan Railway Commission, 235 US 403 (1914),

wherein Michigan's Constitution with its separation of powers

was contrasted with Virginia’s (Prentis) which affirmatively

granted dual powers. (See Petition, pp. 16-17).

The Michigan statutes cited in Petition Appendix F dem-

onstrate the absence of judicial power in MDOT. A judicial

proceeding in a court is required to enforce MDOT’s rules and

orders.

10

CONCLUSION AND RELIEF SOUGHT

For the reasons set forth in the Petition and in this Reply

Brief, the Petition for Writ of Certiorari should be granted.

Respectfully submitted,

PATRICK E. HACKETT

Counsel of Record

CAROL HACKETT

GARAGIOLA

Attorneys for Petitioner

1400 N. Woodward, Suite 205

Bloomfield Hills, MI 48013

(313) 647-6860

SALLY KIRCHER

Attorney for Petitioner

CSXT, Inc.

Law Department

500 Water Street

Jacksonville, FL 32202

(904) 359-1224

APPENDIX A

A-|

APPENDIX A

RULES AND REGULATIONS RELATING TO

SANITATION AND ADEQUATE SHELTER FOR

CERTAIN RAILROAD EMPLOYEES

By authority of Act No. 3, Public Acts of 1939, as amended

[CL 1948, $460.1]

R 460.1471. Section 1—Definitions

The words and phrases used herein shall be construed as

follows, unless the context shall otherwise require:

(a) The term “localized facilities,’ when used herein,

shall mean those facilities of sanitation or shelter for the welfare

and health of railroad trainmen, enginemen and yardmen,

which facilities are to be maintained at points where employees

are required to report for duty or are relieved from duty.

(b) The term “highway crossing shanty,” when used

herein, shall mean a building at which public highway crossing

watchmen are regularly stationed for performance of their

duties.

(c) The term “running facilities,” when used herein, shall

mean those facilities of sanitation or shelter to be maintained on

engines, trains or cabooses for the welfare and health of

railroad trainmen, enginemen and yardmen.

,

(d) The term “camp facilities,” when used herein, shall

mean those facilities of sanitation or shelter for the welfare and

health of maintenance of way employees, when such facilities

are to be maintained at railroad camps of a permanent or

seasonal nature, or are located in movable cars when used for

housing maintenance of way employees.

(e) The term “crossing watchmen,” when used herein,

shall include such employees as are used in the flagging of

public highway crossings or in the actual operation of manually

controlled gates, public highway crossing signals, or other

appurtenances having to do with the protection of such cross-

ings.

A-2

(f) The term “section house facilities,” when used herein,

shall mean the shelter facilities maintained for maintenance of

way employees at points where such employees report for duty

or are relieved from duty.

HISTORY: ACS 18, p. 45.

R 460.1472. Sec. 2—Localized facilities

Adequate localized facilities, as defined in section 1 (a)

hereof, consisting, as in each location may be necessary, of the

following facilities, installed and maintained as specified, shall

be furnished by all railroad companies under the jurisdiction of

this commission, if, in the judgment of the commission, such

facilities, or any of them, are necessary for the welfare and

health of the above mentioned employees:

(a) There shall be provided a locker room, separate from

the toilet room by solid partitions, where the employees may

change their clothing. The area of such room shall not be less

than 80 square feet of clear floor space for 10 employees, and

adequate space to be added for additional employees.

Necessary benches and tables shall be provided.

(b) Where lockers are not now provided, a sufficient

number of metal lockers shall be provided, the dimensions of

which shall not be less than 72 inches high, 15 inches wide and

18 inches deep, save that, in such locations where larger lockers

shall be deemed necessary, they shall be provided as shall be

agreed to between the railroad company and its employees.

Said lockers shall be equipped on the inside with a top shelf,

and not less than | clothes hook on each side, a hanger bar, and

also sufficient openings in the door for the purpose of ventila-

tion.

(c) Where running water and sewers are reasonably

available or where physical conditions and ordinances permit

the use of septic tanks in lieu of sewers, hot and cold running

A-3

water, sufficient wash bowls and shower facilities, and flush

toilets in accordance with the following minimum requirements,

shall be provided:

Number of Persons Number of Toilets

1 to 10 |

11 to 24 2

25 to 49 3

50 to 100 5

100 or over 1 for each additional 25 persons

(d) Wherever urinals are provided, | urinal may be

substituted for 1 toilet, provided the number of toilets shall not

be reduced to less than % the number shown in the above table.

(e) If practical, every toilet room shall be so located as to

open to the outside light and air by windows or skylights.

(f) All inside toilet facilities shall be made of materials

impervious and resistant to moisture, and shall be fitted with

individual flush systems. In the case of urinals, the water may

be allowed to run continuously.

(g) The walls of compartments or partitions between

toilet fixtures may be less than room height, but the top shall

not be less than 5 feet from the floor and the bottom not more

than | foot from the floor.

(h) An adequate supply of cool, sanitary water, satisfac-

tory for drinking purposes, shall be made available to all

employees. Where necessary, this water shall be provided in

suitable sanitary containers, conveniently placed for the use of

the above mentioned employees, and each container will be

equipped with a faucet or other dispenser. The company shall

furnish individual drinking cups.

(i) Locker and toilet rooms shall be adequately heated,

ventilated, lighted, and provided with screens, and said facil-

ities shall be kept reasonably clean by the empioyer.

HISTORY: ACS 18, p. 46.

A-4

R 460.1473. Sec. 3—Running facilities

(a) Adequate toilet facilities shall be made available for

trainmen, enginemen and yardmen, after hearing thereon and

order by the commission, which toilet facilities shall be kept in a

reasonably clean and sanitary condition.

(b) All yard diesels shall have the floors cleaned and the

windows washed at reasonable intervals.

(c) All cabooses shail have the interior washed once each

year. Road cabooses used on trains handling ore in open top

equipment, and all yard and transfer cabooses, shall have the

floors scrubbed or mopped once each month. Other road

cabooses on any run shall have the floors scrubbed or mopped

once each month, if the crew using same request it.

Windows on all cabooses shall be washed once a month,

except in freezing weather.

(d) When required by the season of the year, doors and

windows of cabooses shall be equipped with adequate metal

stripping. Similarly, when required by the season of the year,

cabooses shall be equipped with screen doors or screen panels,

and windows on each side of each caboose shall be screened.

Sliding screen windows, however, shall be deemed adequate.

(e) An adequate supply of cool, sanitary water, satisfac-

tory for drinking purposes, shall be made available for the use

of trainmen, enginemen and yardmen. Suitable sanitary con-

tainers, equipped with a faucet or other dispenser, shall be

maintained on cabooses and locomotives, and individual drink-

ing cups shall be furnished by the company.

(f) Every caboose used in any train in this state, regard-

less of service, shall be provided with a stove or other adequate

means of heating. A sufficient amount of fuel for the trip or

shift shall be made available.

(g) Baggage and express cars, when occupied by employ-

ees coming under the provisions of this act, will be so arranged

4

#

”

,

a

2

i

if

x

>

A-5

in the train that employees required to ride such cars will have

access to the drinking water, toilet and washing facilities

provided in a coach in said train; and, if it is found impractical

to so arrange said cars in the train, then drinking water, toilet

and washing facilities must be furnished for the employees

riding said cars upon formal order of and by the commission.

HISTORY: 1944 ACS 18, p. 46; 1954 AC, p. 6324; 1954 ACS |, p. 35.

R 460.1474. Sec. 4—Crossing watchmen facilities

(a) Adequate shelter shall be furnished for crossing

watchmen, and said shelter shall be properly sealed and

insulated against cold, and heated.

(b) If, in the judgment of the commission, it is practical,

toilet and washing facilities will be furnished as the commission

may require, after inspection and agreement or hearing in the

matter.

HISTORY: ACS 18, p. 47.

R. 460.1475. Sec. 5—Camp facilities

(a) When employees are furnished meals in camp cars, as

hereinbefore defined, adequate sanitary facilities and space

shall be provided.

(b) Where cars, other than passenger coaches, are fur-

nished for sleeping quarters, cars shall not house over 10 men

each. Where passenger coaches are furnished, the commission

may designate the number of men to be housed in each coach.

(c) All camp cars will be properly heated, ventilated,

sealed and lighted, and, during the period of the year in which

insects are prevalent, the doors and windows will be screened.

(d) All extra and permanent gangs will be furnished with

shower car, with running hot and cold water. Adequate toilet

facilities will be furnished for all employees.

(e) Camp man or janitor will be furnished for all gangs

over 20 men for the purpose of keeping the cars and grounds in

a clean and sanitary manner.

A-6

(f) When extra and permanent gangs are furnished with

kitchen car or cars, the same shall be well equipped with

adequate kitchen facilities. Such kitchen cars shall be main-

tained in a clean and sanitary condition.

HISTORY: ACS 18, p. 47.

R 460.1476. Sec. 6—Section houses

Adequate shelter facilities, located in section houses or

other suitable buildings, consisting, as in the individual case

my be necessary, of the following appliances, installed and

maintained as specified, shall be furnished by all railroad

companies under the jurisdiction of this commission for regu-

larly assigned maintenance of way employees, at points where

such employees are required to report for duty or are relieved

from duty, as, in the judgment of the commission, after

investigation, and hearing, if requested, such facilities, or any of

them, are necessary for the welfare and health of the above

mentioned employees:

(a) There shall be provided space, adequate for the

number of employees using said facilities, where employees

may change their clothing, furnished with tables and benches or

chairs, in accordance with the number of employees using the

facilities. Where lockers are not now provided, and the same

are requested by the employees using the individual facility, a

sufficient number of metal lockers shall be provided to meet the

requirements of said employees.

(b) Durng the period of the year in which insects are

prevalent, screens will be furnished for the windows and doors.

(c) The space designated as shelter will be partitioned,

sealed and adequately heated and lighted.

(d) Where running water and sewerage facilities are

reasonably available, flush toilets and washing facilities will be

provided. Otherwise, an outside toilet will be furnished and

maintained in accordance with the provisions of section 7:

sat te

A-7

Provided, however, The provisions of this sub-section shall not

be applicable where toilets and washing facilities are otherwise

made reasonably available for maintenance of way employees.

(e) If necessary, a sufficient supply of running or well

water will be made reasonably available, and individual drink-

ing cups will be furnished.

HISTORY: ACS 18, p. 47.

R 460.1477. Sec. 7—Construction and maintenance of outside

toilets when used by employees coming under the provisions of

this act.

(a) The commission may, after proper investigation,

hearing and order in the matter, permit the installation and

maintenance of outside toilet facilities, where it is found

otherwise impractical to install inside toilets and urinal facil-

ities.

(b) Where outside toilets are installed and maintained in

accordance with the above paragraph, they shall be located on

ground that is well drained, and where there is no possibility of

contaminating any drinking water supply.

(c) Suitable approach, such as concrete, gravel, or cinder

walk, shall be provided.

(d) All windows, ventilators, and other openings, except

doors, shall be screened to prevent the entrance of insects. A

separate ventilator duct, with hood, shall be provided for the

vault, and shall extend above the roof.

(e) The entire installation must be kept clean and sani-

tary. Milk of lime (freshly slaked lime), or other equally

effective disinfectant, shall be used in the vault and in the urinal

trough, in sufficient quantities and at frequent intervals. The

floors, seats and urinals must be scrubbed as often as necessary.

HISTORY: ACS 18. p. 48

A-8

R 460.1478. Sec. 8

Any shelter and sanitary facilities which have been con-

structed and are presently being maintained in accordance with

an agreement heretofore entered into between the parties in

interest, and agreed to or ordered by the commission, shall be

deemed a complete compliance with these rules and regu-

lations, until such time as a specific complaint is filed with the

commission claiming that, on account of changes made in the

uses of the facilities, such facilities are inadequate: Provided,

Nothing herein shall be construed to abrogate or limit any

agreement between the interested parties now in effect which

provides for better or more adequate facilities, or to prevent the

negotiation of such an agreement in the future.

HISTORY: ACS 18. p. 48.

R 460.1479. Sec. 9

Any railroad company being of the opinion that the-

application or enforcement of this order, or any part thereof, at

any particuter-place, will be unjust or unreasonable, may apply

to the commission for relief therefrom, and the commission

may, by written order, relieve said railroad company from the

application of this order, or any part thereof, at such place, or

modify the same in such manner and to such extent as shall be

just and reasonable.

HISTORY: ACS 18, p. 48.

R 460.1480. Sec. 10

In the absence of specific complaint, present facilities shall

be deemed adequate. In the event of a complaint filed

hereafter in respect of such facilities, and the commission shall

find the same inadequate, the railroad company involved shall

have a reasonable time in which to complete the work required

in the light of the then existing situation, circumstances and

conditions.—

HISTORY: ACS 18, p. 48

A-9

R 460.1481. Sec. 11

In the event of any dispute or disagreement between any

employee and any employer as to the intent, meaning and

interpretation of any or all of the rules hereinabove set forth,

the commission reserves unto itself the mght to set a hearing

thereon, and to issue appropriate order or orders, so as to

effectuate and carry out the intent and purpose of said rules.

HISTORY: ACS 18. p. 48

APPENDIX B

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CSXT, INC.

a Virginia Corporation,

Plaintiff,

Case No. L88-17CAS5

HON. ROBERT HOLMES

BELL

Vv

JAMES J. PITZ, Director of the

Department of Transportation of

the State of Michigan, NORMA

J. FLEMING, Administrator of

the Railroad Safety and Tariffs

Division of the Department of

Transportation of the State of

Michigan and The Department

of Transportation of the State of

Michigan,

Defendants,

and

UNITED TRANSPORTATION UNION,

Intervening Defendant.

PATRICK E. HACKETT SALLY J. KIRCHER

(P14500 ) CSXT, INC.

CAROL HACKETT- Law Department

GARAGIOLA ( P33371) Attorney for Plaintiff

Attorneys for the Plaintiffs 500 Water Street

1400 N. Woodward Avenue Jacksonville, FL 32202

Suite 205 (904) 359-1248

Bloomfield Hills, MI 48013

(313) 647-6860 —

FRANK J. KELLEY RALLS & MACKEY, P.C.

(P15818) Attorneys for the Inter-

Attorney General vening Defendent-UTU

SUSAN PECK IANNOTTI 118 West Ottawa Street

(P29081 ) Lansing, MI 48933

Assistant Attorney General (517) 372-6622

Attorneys for the Defendants

4th Floor, Transportation

Bldg.

Lansing, MI 48909

(517) 373-1476

STATE DEFENDANTS’ BRIEF IN OPPOSITION TO

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

B-2

INTRODUCTION AND SUMMARY OF ARGUMENT

The State of Michigan, Department of Transportation,

requires railroads to make available on their locomotives ade-

quate toilet facilities for the health and welfare of their train-

men, enginemen and yardmen. CSXT operates its railroad

system within the State of Michigan utilizing locomotives that

have no toilets. Seeking to avoid the State of Michigan’s

enforcement of its rule against CSXT, the Railroad enlists the

aid of this Court to declare the State’s rule preempted by two

Acts of Congress: the Boiler Inspection Act of 1911, as

amended in 1915, and the Federal Railroad Safety Act of 1970.

In any preemption case, the Court’s task is to ascertain

whether it was the intent of Congress to totally occupy the field

in which the State has acted. Jn the case at bar, the State of

Michigan has acted to further railroad safety and to promote the

health and welfare of its citizens by adopting a rule requiring

toilets on locomotives. The question facing this Court, therefore,

is whether it is the intent of Congress to totally occupy the field

of railroad safety so as to displace the State police power so

exercised.

The two acts proffered by CSXT as a basis for finding such

a total occupation both deal with railroad safety. The 1911 Act,

as amended in 1915, is strictly limited to locomotive safety.

None of the Act’s sections address preemption and no legisla-

tive history is available to examine. One 1926 opinion of the

United States Supreme Court sheds the only light on the issue

in which the Court found a total occupation of the field of

locomotive safety based on the statutes in force at that time.

In contrast, recognizing that the amended 1911 Act had

served well, but was too limited in scope, Congress passed the

1970 Act to comprehensively address the entire field of railroad

safety. In doing so, it expressly assigned a role to the States in

this area and provided a detailed legislative history leaving no

question about its intent.

CSXT urges this Court to preempt the State’s rule on the

basis of a 1926 case guessing at the intent of a 1915 Congress.

B-3

The State Defendants, on the other hand, urge this Court to be

guided by Congress’ own statement of its intent more recently

expressed in an unambiguous 1970 statute, which will compel

the conclusion that the State of Michigan’s rule is not preemp-

ted and should be declared enforceable against CSXT. Support

for this conclusion is set forth below, beginning with analysis of

the Federal Railroad Safety Act, followed by examination of

the Boiler Inspection Act.

LAW AND ARGUMENT

A.

MICHIGAN'S RULE REQUIRING TOILET FACILITIES

ON LOCOMOTIVES IS NOT PREEMPTED BY

THE FEDERAL RAILROAD SAFELY ACT BECAUSE

NO FEDERAL RULE HAS BEEN ADOPTED COVERING

THE SAME SUBJECT MATTER

Michigan’s Rule appears in the 1979 Michigan Adminis-

trative Code as follows:

“R 460.1473 Running facilities.

“Rule 3. (1) Adequate toilet facilities shall be made

available for trainmen, enginemen and yardmen, after

hearing thereon and order by the commission, which toilet

facilities shall be kept in a reasonably clean and sanitary

condition.” 1979 AC, R 460.1473(1) (hereinafter referred

to as Rule 460.1473(1)). (A copy of Rule 460.1473(1) is

attached hereto as Appendix A. )

The first question presented is whether Rule 460.1473(1) is

preempted by the Federal Railroad Safety Act of 1970, 45

U.S.C. §§ 421-44 (1976).

CONCLUSION AND REQUEST FOR RELIEF

Congress must express in terms permitting no other con-

clusion its intent to preempt the historic police powers of the

States when exercising its Federal commerce power. In 1926,

B-4

Congressional intent to preempt State police powers in the field

of locomotive safety was inferred by judicial construction. In

1970, that inference was repudiated. In 1970, Congress ex-

pressed in clear and unmistakable terms its intent to permit, not

prohibit, the exercise of State power to promote rail safety.

Congress ordained that the States may adopt “any” rule

“relating to railroad safety” unaddressed by specific Federal

action.

Rule 460.1473(1) requiring toilets on locomotives relates to

railraod safety. No Federal rule has been adopted covering the

subject matter of locomotive sanitation. The conclusion is

inescapable that Rule 460.1473(1) is not preempted. Any

other construction turns the Federal Railroad Safety Act on its

head.

For all the reasons stated above, the State Defendants

respectfully urge that this Court enter its Order denying Plain-

tiffs Motion for Summary Judgment and instead granting

judgment in favor of the Defendants declaring Rule

460.1473(1) valid and enforceable. In the alternative, Defend-

ants request that this Court deny Plaintiffs Motion for Sum-

mary Judgment on the ground that further proceedings are

needed to resolve genuine issues as to material facts.

Respectfully Submitted,

FRANK J. KELLEY (P15818)

Attorney General

Susan Peck I*nnotti (?29081 )

Assistant Attorney General

4th Floor, Transportation Bldg.

Lansing, MI 48909

(517) 373-1476

Dated: April 8, 1988

APPENDIX C

C-1

APPENDIX C

88-1642

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CSXT, INC., A Virginia Corporation

Plaintiff — Appellee

Ve

District Court

File No. L88-17CA5

JAMES J. PITZ, Director of the

Department of Transportation of

the State of Michigan; NORMA

J. FLEMING, Administrator of

the Railroad Safety and Tariffs

Division of the Department of

Transportation of the State of

Michigan; DEPARTMENT OF

TRANSPORTATION OF THE

STATE OF MICHIGAN;

Defendants-Appellants

UNITED TRANSPORTATION

UNION

Intervening Defendant-Appellani

APPEAL FROM THE DISTRICT COURT OF THE

UNITED STATES FOR THE WESTERN DISTRICT OF

MICHIGAN HONORABLE ROBERT HOLMES BELL

BRIEF OF DEFENDANTS-APPELLANTS

FRANK J. KELLEY

Attorney Genera!

Louis J. Caruso

Solicitor General of Michigan

Counsel of Record

Patrick F. Isom

Assistant Attorney General

In Charge

Transportation Division

Susan Peck lannotti ( P29081 )

Assistant Attorney General

Attorneys for Defendants-

Appellants

Transportation Division

4th Floor, Transportation

Building

425 W. Ottawa Street

Lansing, Michigan 48909

Dated: August 26, 1988 (517) 373-1476

C-2

TABLE OF CONTENTS

Page

Se See IED secisutivtlscstiiitininnddsnineencccemnennnesccmiities C-3

STATEMENT OF ISSUES PRESENTED FOR

RS EE ee ane eT C-5

SAEs Ge CUD SN crcctncesccctipseentecsonsapersimresineatiiabi C-6

ARGUMENTS:

I. MICHIGAN’S RULE REQUIRING TOILET

FACILITIES ON LOCOMOTIVES IS NOT

PREEMPTED BY THE FEDERAL RAIL-

ROAD SAFETY ACT BECAUSE NO FEDER-

AL RULE HAS BEEN ADOPTED COV-

ERING THE SAME SUBJECT MATTER.......... C-11

Il. MICHIGAN’S RULE REQUIRING TOILET

FACILITIES ON LOCOMOTIVES IS NOT

PREEMPTED BY THE _ BOILER _iIN-

SPECTION ACT BECAUSE THE BOILER IN-

SPECTION ACT DOES NOT APPLY TO

SANITARY FACILITIES AND BECAUSE

THERE IS NO FEDERAL RULE COVERING

THE SAME SUBJECT MATTER .............2.0000000.

CONCLUSION AND RELIEF REQUESTED .................. C-12

PEFESEI PONE cestrenssnsssretainermemnnenennagidpinininemntanveeaeaiian

eS ee Se

C-3

INDEX OF AUTHORITIES

CASES

Anderson v Celebrezze, 460 U.S. 780; 103 S. Ct.

a ee

Consolidated Rail Corp. v Penn Public Utilities

Comm’n, 546 F. Supp. 653 (E.D. Pa. 1982),

aff'd mem., 696 F. 2d 981 (3d Cir. 1982), aff'd

sum sub nom., Penn Public Utilities Comm’n v

Consolidated Rail Corp., 461 U.S. 912; 103 S. Ct.

ee |, ) Or

Florida Lime & Avocado Growers Inc. v Paul, 373

U.S. 132; 83 S. Ct. 1210; 10 L. Ed. 2d 248

Green v River Terminal Ry. Co., 763 F. 2d 805

I ccssccccees

Jones v Rath Packing Co., 430 U.S. 519; 97 S. Ct.

Ss ,

Louisianna Public Service Comm’n v FCC, 476

U.S. 355; 106 S. Ct. 1890; 90 L. Ed. 2d 369

Marshall v Burlington Northern, Inc., 720 F. 2d

ESE

Mauer v Hamilton, 309 U.S. 598; 60 S.G. 726; 84

EES TTETTT

Missouri Pacific Railroad Co. v Railroad Commis-

sioner of Texas, 833 F. 2d 570 ( Sth Cir., 1987)...

Mosco v Baltimore & Ohio R.R., 817 F. 2d 1088

a scnsenscrcnnecs

Napier v Atlantic Coast Line R. Co., 272 U.S. 605;

47S. Ct. 207; 71 L. Ed. 432 ( 1926)...............22.002-

Norfolk & Western Ry. Co. v Burns, 587 F. Supp.

eR

Norfolk & W. Ry. Co. v Penn. Public Utility

Comm’n, 489 Pa. 109; 413 A. 2d 1037 (1980)...

Rice v Santa Fe Elevator Corp., 331 U.S. 218; 67S.

Ct. 1146; 91 L. Ed. 1447 (1946) .00

Southern Pacific Transportation Co. v Public Utili-

ties Comm'n, 657 F. Supp. 1220 (N.D. Cal.

1986), aff'd 820 F. 2d 1111 (9th Cir., 1987) .......

Page

C-4

Southern Railway Co. v. Lunsford, 297 U.S. 398;

56 S. Ct. 504; 80 L. Ed. 740 (1936) .....0..eceee ee.

United States v Baltimore & O. R. Co., 293 US.

454; 55S. Ct. 268; 79 L. Ed. 587 ( 1935)..............

Urie vy Thompson, 337 U.S. 163; 69 S. Ct. 1018; 93

Soe Es EE USUI? BY kathshcdincsnntbiehesstdnnedibiiibesuiiseedibnens

STATUTES

Boiler I[aspection Act of 1911, 45 U.S.C. §§ 22-23,

EE EE tod ttisniteettenictacaaiatdamendinnedaaaanes

Federal Railroad Safety Act of 1970, 45 U.S.C.

ep iin tntisninittiinicseinnnieiatiistiidinibie

OTHER AUTHORITIES

SFTP A, Be STE BD ) ertecinsinrccsetnnnchiesctionasctsseeess

H.R. Rep. No. 91-1194, 91 St. Cong., 2d Sess.

€ FOU Pakcraitidinntcabhaitadiinicitanececnispinanstinitbiiannientiadedalailaies

Stern, Gressman & Shapiro, Supreme Court Prac-

tt | RS Le

Page

C-5

STATEMENT OF THE ISSUES

PRESENTED FOR REVIEW

I.

WHETHER MICHIGAN’S RULE REQUIRING SANI-

TARY FACILITIES ON LOCOMOTIVES 1S PREEMPTED

BY THE FEDERAL RAILROAD SAFETY ACT.

IL.

WHETHER MICHIGAN’S RULE REQUIRING SANI-

TARY FACILITIES ON LOCOMOTIVES IS PREEMPTED

BY THE BOILER INSPECTION ACT.

C-6

88-1642

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CSXT, INC., a Virginia Corporation

Plaintiff-Appellee

District Court

File No. L88-17CAS5

JAMES J. PITZ, Director of the

Department of Transportation of

the State of Michigan; NORMA

J. FLEMING, Administrator of

the Railroad Safety and Tariffs

Division of the Department of

Transportation of the State of

Michigan; DEPARTMENT OF

TRANSPORTATION OF THE

STATE OF MICHIGAN;

Defendants-Appellants

UNITED TRANSPORTATION

UNION

Intervening Defendant-Appellant

DEFENDANTS-APPELLANTS’ BRIEF ON APPEAL

STATEMENT OF THE CASE

This case is an appeal from the United States District

Court’s entry or a permanent injunction restraining the Michigan

Department of Transportation (hereinafter referred to as the

“Department”’) from enforcing its administrative rule requiring

adequate sanitary facilities on locomotives and a judgment

declaring Michigan’s rule preempted by federal law. The

Plaintiff-Appellee CSXT, Inc. (hereinafter referred to as

C-7

“CSXT”), operates a railroad system in Michigan and other

states. Defendant-Appellant James Pitz is the Director of the

Department of Transportation and Defendant-Appellant

Norma J. Fleming is Administrator of the Railroad Safety and

Tariffs Division of the Michigan Department of Transportation

(herein referred to collectively with the Defendant-Appellant

Michigan Department of Transportation as the “State”’). The

Intervening Defendant-Appellant is a union representing the

interests of rail workers.

State’s Administrative Proceedings

The course of proceedings in this case began on January 6,

1988 when Hearing Officer Virginia A. Dean served on CSXT a

Notice of Hearing scheduled for February 10, 1988, on separate

complaints filed by the United Transportation Union (here-

inafter referred to as “UTU”) and the Brotherhood of Locomo-

tive Engineers. [See R. 17: Affidavit of W. VanderVeer in

Support of Plaintiffs Motion for Summary Judgment (here-

inafter VanderVeer Affidavit), Ex A-7.] The complaints had

been filed with the Railroad Safety and Tariffs Division of the

Department alleging that certain CSXT locomotives operating

in Michigan lacked toilet facilities (R. 17: VanderVeer Affida-

vit, Ex A-4) as required by Department Rule 460.1473(1)

which appears in the 1979 Michigan Administrative Code as

follows:

“R 460.1473 Running facilities.

“Rule 3. (1) Adequate toilet facilities shall be made

available for trainmen, enginemen and yardmen, after

hearing thereon and order by the commission, which toilet

facilities shall be kept in a reasonably clean and sanitary

condition.” [Hereinafter referred to as the “Department’s

Rule” or “Rule 460.1473(1)”.]

On January 21, 1988, CSXT filed with the Department’s

Office of Administrative Law Hearings a Motion to Stay

Administrative Proceedings on the ground that CSXT had filed

C-8

a suit for injunctive and declaratory relief in federal district

court alleging that the Department’s Rule was preempted by

two acts of Congress. (See R. 17: VanderVeer Affidavit at p 4,

7 11.) A hearing was held on CSXT’s Motion on January 27,

1988 before Hearing Officer Dean at which argument was

presented by counsel for CSXT, the Department and one of the

two complainants, UTU. (See R. 17: VanderVeer Affidavit at

p 4, 7 12.) By order issued that same day, Hearing Officer Dean

denied CSXT’s Motion to Stay on the ground that no authority

had been presented requiring deviation from the statutorily

established administrative framework and on the further

ground that administrative agencies were not authorized to pass

on constitutional questions, such as the federa! preemption

argument advanced by CSXT. (See R. 17: VanderVeer

Affidavit, Ex B.)

As set forth in more detail below, the State’s administrative

proceedings were never held, having been preliminarily en-

joined by Order of the U.S. District Court entered on February

9, 1988 (R. 7) and later permanently enjoined by Judgment

Order entered May 18, 1988 (R. 33).

U.S. District Court Proceedings

CSXT’s Complaint for injunctive and declaratory relief

was filed with the United Siates District Court for the Western

District of Michigan, Southern Division, on January 22, 1988

and was assigned to the Honorable Robert Holmes Bell (R. 1).

The Complaint contained three counts: Count I alleged the

Department’s Rule was preempted by the Federal Boiler

Inspection Act, 45 U.S.C. § 22 et seq: Count II alleged the

Department’s Rule was preempted by the Federal Railroad

Safety Act, 45 U.S.C. § 434; and Count III alleged the

Department’s Rule violated the Commerce Clause of the

United States Constitution, Art I, § 8, clause 3 (R. 1).

On February 3, 1988, the UTU filed a Motion to Intervene

as Intervening Defendant (R. 2). On February 4, 1988, CSXT

C-9

filed a Motion for Temporary Restraining Order, on which date

UTU’s Motion to Intervene was granted (R. 3, 5).

On that same date, the Trial Court entered an Order for

Preliminary Injunction, restraining the Depa:tment from en-

forcing its Rule and from continuing the scheduled adminis-

trative proceeding until August 4, 1988 or until the Court’s

ruling on a Motion for Summary Judgment to be filed by

Plaintiff (R. 7). The Court’s Order also provided that the

parties were to schedule oral argument on the Motion for

Summary Judgment with the Court (R. 7).

On February !0, 1988, Intervening Defendant UTU filed a

Motion to Abstain or Dismiss (R. 8). On March 8, 1988, CSXT

filed its Motion for Summary Judgment, raising only two of the

three grounds for relief set forth in its Complaint: preemption

based on the Federal Railroad Safety Act and preemption

based on the Boiler Inspection Act (R. 16). The State and the

UTU filed their responses in opposition to CSXT’s Motion,

following which a hearing date of June 14, 1988 was agreed

upon and set with the Court (R. 23, 24).

Disposition in Court Below

Prior to the date set for hearing, on May 18, 1988, the

Court issued its Judgment Order granting CSXT’s Motion for

Summary Judgment, declaring the Department’s Rule pre-

empted by both the Boiler Inspection Act and the Federal

Railroad Safety Act and enjoining further enforcement of the

Rule insofar as it required commodes on locomotives (R. 33).

The Court never expressly considered or ruled on UTU’s

Motion to Abstain (R. 33). The absence of a hearing on

Plaintiff's Motion for Summary Judgment prevented the State

from expressing on the record its intention to join with the UTU

in its Motion to Abstain.

Both the UTU and the State filed appeals, which were

consolidated by stipulation of the parties and Order of this

Court.

Statement of Facts

There being no record testimony taken in the District

Court, the facts of the case at bar primarily arise out of the

procedural history of the case and have, for the most part, been

set forth above.

The salient facts giving rise to the instant action, however,

are undisputed and may be briefly stated as follows:

1. The Michigan Department of Transportation’s Rule was

duly promulgated and requires railroads to make available on

their locomotives adequate sanitary facilities for the health and

welfare of their trainmen, enginemen, and yardmen.

2. CSXT operates its railroad system within the State of

Michigan, utilizing locomotives that have no sanitary facilities

(R. 17: VanderVeer Affidavit at J 5).

3. Assuming the validity of the Department’s Rule,

CSXT’s activities fall directly within its scope.

4. The Department initiated proceedings seeking to en-

force its Rule against CSXT.

5. CSXT resisted the Department’s efforts by filing an

injunctive action in U.S. District Court.

6. As of the date of entry of the District Court’s Judgment

Order, the State’s police power to protect the health and

welfare of its rail workers has been severely curtailed.

C-11

ARGUMENT

I. MICHIGAN'S RULE REQUIRING TOILET FACIL-

ITIES ON LOCOMOTIVES 1S NOT PREEMPTED BY

THE FEDERAL RAILROAD SAFETY ACT BECAUSE

NO FEDERAL RULE HAS BEEN ADOPTED COV.-

ERING THE SAME SUBJECT MATTER

Michigan’s Rule appears in the 1979 Michigan Adminis-

trative Code as follows:

“R 460.1473 Running facilities.

“Rule 3. (1) Adequate toilet facilities shall be made

available for trainmen, enginemen and yardmen, after

hearing thereon and order by the commission, which toilet

facilities shall be kept in a reasonably clean and sanitary

condition.” 1979 AC, R 460.1473(1)

The first question presented in this appeal is whether the trial

court erred in ruling that Rule 460.1473( 1) is preempted by the

Federal Railroad Safety Act of 1970, 45 U.S.C. §§ 421-44

(1976).

The legislative history of the Railroad Safety Act makes

clear that the “primary purpose” of the act is to “promote

safety in all areas of railroad operations ....” H.R. Rep. No.

91-1194, 91st Cong., 2d Sess. (1970), reprinted in (1970) U.S.

CODE CONG. & AD. NEWS 4104, 4104 (hereinafter referred

to as “House Report No. 91-1194”). In describing the

background and need for the new legislation, the Committee

appraised the then existing safety statutes, including the Boiler

Inspection Act, as too limited and recommended broadscale

Federal and State action:

** .. Consequently, there is a strong concensus which makes

it appear clearly that the time is now here for broadscale

Federal legislation with provisions for active State participa-

tion to assure a much higher degree of railroad safety in

the years ahead.” House Report No. 91-1194 at 4105.

(Emphasis added. )

C-12

The more expanded regulatory role assigned to the States

is set forth in § 205 of the Federal Railroad Safety Act (45

U.S.C. § 434), which “authorizes States to regulate in any area

of railroad safety until the Secretary [of Transportation] acts

with respect to the particular subject matter.” House Report

No. 91-1194 at 4112. (Emphasis added. )

Section 205 of the Railroad Safety Act provides:

“he Congress declares that laws, rules, regulations,

orders, and standards relating to railroad safety shall be

nationally uniform to the extent practicable. A State may

adopt or continue in force any law, rule, regulation, order, or

standard relating to railroad safety until such time as the

Secretary has adopted a rule, regulation, order, or standard

covering the subject matter of such State requirement. A

State may adopt or continue in force an additional or more

stringent law, rule, regulation, order, or standard relating

to railroad safety when necessary to eliminate or reduce an

essentially local safety hazard, and when not incompatible

with any Federal law, rule, regulation, order, or standard,

and when not creating an undue burden on interstate

commerce.” 45 U.S.C. § 434. (Emphasis added. )

Thus, while uniformity is important, the States unquestionably

may act in those specific areas where the federal government

has not acted.

The Trial Court examined § 205 of the Federal Railroad

Safety Act and correctly concluded that analysis of the

CONCLUSION AND REQUEST FOR RELIEF

Congress must express in terms permitting no other con-

clusion its intent to preempt the historic police powers of the

States when exercising its Federal commerce power. In 1926,

Congressional intent to preempt State police powers in the field

of locomotive safety was inferred by judicial construction. In

1970, that inference was repudiated. In !970, Congress ex-

pressed in clear and unmistakable terms its intent to permit, not

C-13

prohibit, the exercise of State power to promote rail safety.

Congress ordained that the States may adopt “amy” rule

“relating to railroad safety” unaddressed by specific Federal

action.

Rule 460.1473(1) requiring toilets on locomotives relates to

railroad safety. No Federal rule has been adopted covering the

subject matter of locomotive sanitation. The conclusion is

inescapable that Rule 460.1473(1) is not preempted. Any

other construction turns the Federal Railroad Safety Act on its

head.

For all the reasons stated above, the State respectfully

urges this Court to enter its Order reversing the Trial Court’s

order granting Plaintiffs Motion for Summary Judgment, dis-

solving the permanent injunction entered incident thereto and

instead granting judgment in favor of the Defendants declaring

Rule 460.1473(1) valid and enforceable.

Respectfully submitted,

FRANK J. KELLEY (P15818)

Attorney General

Louis J. Caruso

Solicitor General of Michigan

Counsel of Record

Susan Peck Iannotti (P29081 )

Assistant Attorney General

4th Floor, Transportation Bldg.

Lansing, MI 48909

(517) 373-1476

Dated August 26, 1988