Petition for Writ of Certiorari — United Transportation Union v. Slater

) Supreore Court, U.S

~ tS ae Ee

QB SRT cl | 419%

No.

OFFIGE OF THE CLERK

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1998

UNITED TRANSPORTATION UNION,

Petitioner,

Vv.

HONORABLE RODNEY SLATER, et al.,

Respondents.

and

NORFOLK AND WESTERN RAILWAY COMPANY,

Intervenor on Appeal.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: LAWRENCE M. MANN *

CLINTON J. MILLER, III ALPER, MANN & WEISBAUM, P.C.

General Counsel 1730 K Street, N.W.

UNITED TRANSPORTATION — Suite 1107

UNION Washington, D.C. 20006

14600 Detroit Avenue (202) 298-9191

Cleveland, Ohio 44107 * Counsel of Record

(216) 228-9400

October 14, 1998

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® ora dite! _o

eS

j é

sails

abi

Liane

eine

i i

sivas

iu

yee

i.

QUESTION PRESENTED

Since the Federal Railroad Administration does not

have general rulemaking authority under the hours of

service laws, did the FRA exceed its authority by promul-

gating a regulation covering reconstruction of railroad

sleeping quarters?

(i)

ii

LIST OF PARTIES

The following parties appeared before the Court of

Appeals:

Petitioner:

United Transportation Union

Respondents:

Honorable Rodney Slater, Secretary of Trans-

portation; United States Department of Trans-

portation; Honorable Jolene Molitoris, Federal

Railroad Administor; Federal Railroad Admin-

istration.

Intervenor on Appeal:

Norfolk and Western Railway Company, (a

wholly owned subsidiary of Norfolk Southern

Corporation ).

TABLE OF CONTENTS

REASONS FOR GRANTING THE PETITION ...........

I. THERE IS A SPLIT IN THE CIRCUITS RE-

GARDING THE SCOPE OF POWERS OF

THE FEDERAL RAILROAD ADMINISTRA-

TION TO PROMULGATE REGULATIONS

UNDER THE HOURS OF SERVICE ACT......

A. The Eighth Circuit Has Concluded That

Even Though the Railroad Violated the

“Spirit” of the Hours of Service Act in Reno-

vating the Sleeping Quarters at Moberly,

Missouri, Under the Court’s Doctrine in

Chevron U.S.A., Inc. v. Natural Resources

Defense Counsel, Inc., 467 U.S. 837 (1984),

the Federal Railroad Administration’s Reg-

ulations Are Given Controlling Weight ........

B. The Tenth Circuit Has Concluded That Un-

der the Hours of Service Act, a Railroad

Should Make No Significant Additional-In-

vestment in Sleeping Quarters Near Haz-

ardous Railroad Switching or Humping Op-

erations After July 1976 ..........

(iii)

a Nn

10

iv

TABLE OF CONTENTS—Continued

Page

C. The Seventh Circuit Has Ruled That the Fed-

eral Railroad Administration’s Interpreta-

tion of the Hours of Service Aet Was En-

titled to No Deference, and That the Federal

Railroad Administration Has Not Been

Granted General Rule-Making Authority by

Congress . 10

II. THERE EXISTS A SERIOUS SAFETY ISSUE

WHICH IS DIRECTLY IMPACTED BY THE

DECISION OF THE EIGHTH CIRCUIT ........... 14

CONCLUSION .......... 18

APPENDIX A ............ la

APPENDIX B 9a

APPENDIX C pennies dct bheaisititaevicti 10a

APPENDIX D. mn “ 12a

v.

TABLE OF AUTHORITIES

Cases Page

ACLU v. FCC, 823 F.2d 1564 (D.C. Cir. 1987),

cert, denied, 485 U.S. 959 (1988) ....0-....0.-.cee ene 13

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)... 13

Atchison, Topeka and Santa Fe Railway Co. v.

Pena, 44 F.3d 487 (7th Cir. 1994), aff'd, 516

Wel BI CN sain icine hii Ss Hccinsnic nits 10, 11

Bailey v. Norfolk and Western Railway Co., 942

SWBG-GO6 CHO, Bic TROT) cccicssnicnrintintctcicacevrinits 15

Bowen v. Georgetown University Hospital, 488

Bees I OED Sekt dihneticieineee drut ae AS ae Ls 12

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 887 (1984) —..........-..... 10, 11, 13

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976).. 12

Federal Maritime Comm’n v. Seatrain Lines, Inc.,

rib ate Ry OB, . 5 gue Ace ane ae a 13

Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910 (3d

2 NBs SERS Ee ISR Re (ns oe a Me ONS OOO 14

INS v. Chadha, 462 U.S. 919 (1983) -.....0.0022000002... 12

Manhattan General Equipment Co. v. Commission,

ght RE GR | ARS TRESS SPC en Se ee 12

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)........ 12

United States v. Ron Pair Enterprises, Inc., 489

Re REE <A neg ae ree Re Cot 12

United Transportation Union v. Dole, 797 F.2d 828

BR RR Oe a ee ee Pee TO 6, 10

Statutes

45 U.S.C. § 62 (repealed 1994) 2... 2, 6, 14

ES Be Ds Bet” | a eee er eee A 3, 12

Federal Regulations

a aie Oe I TED sivcssocccsiivsco cs cciccanseiicccacaoion 3, 6, 12

Legislative Matters

H.R. Rep. No. 91-469, 91st Cong., Ist Sess. 6

8, SREP E Rees OPE AT eee ET 15

H.R. Rep. No. 94-1166, 94th Cong., 2d Sess,

£2 1 | SOAS ED EER OR pan ARR et OR Pe RO AP 7,8

vi

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 855, 94th Cong., 2d Sess. 3 (1976)... 7

H.R. Rep. No. 180, 103d Cong., Ist Sess. 5 (1998) .. 3

OMB. SEE CIDE) iii SS 17

fore the Subcommittee on Transportation of

Hazardous Materials of the House Committee on

Energy and Commerce, 102d Cong., 2d Sess. 42

Sere Pon REARS NASER I 12

Transportation, 103rd Cong., 2d Sess. 10

isininsbansniacnnaeccunletaniedes ia tianliacr tinea ei tas oki: 12

Energy and Commerce, 103d Cong. (1994). 11

Regulatory Matters

41 Fed. Reg. 68028 (1976) 00 7, 8,9

41 Fed. Reg. 53070 (1976) 8,9

41 Fed. Reg. 58071 (1976)... 9

9

9

42 Fed. Reg. 27895 (1977)

43 Fed. Reg. 31006 (1978)... 8,

vii

TABLE OF AUTHORITIES—Continued

Miscellaneous

2A Norman J. Singer, Sutherland Statutory Con-

struction § 47.383 (5th ed. 1992)

Administration, DOT/FRA/ORD-92-17 (June,

1992)

SOPNNPSO LIS OOLLLLYLOSSSOSSO OOD S8ESS89908080955000808000 008 C0SSESeR+sSS CCC“

Page

14

15

17

17

In THE

Supreme Court of the United States

OCTOBER TERM, 1998

No.

UNITED TRANSPORTATION UNION,

n Petitioner,

HONORABLE RODNEY SLATER, et al.,

é ,

ond Respondents

NORFOLK AND WESTERN RAILWAY COMPANY,

Intervenor on Appeal.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

The United Transportation Union respectfully petitions

for this Court to issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Eighth Circuit.

OPINION BELOW

The ruling at issue here, of the United States Court of

Appeals for the Eighth Circuit, is attached hereto. Ap-

pendix A, la-8a (hereinafter “App.

ag *

2

JURISDICTION

The decision of the United States Court of Appeals for

the Eighth Circuit was entered on July 16, 1998. The

mandate of the court was issued on September 11, 1998.

App. B, 9a. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The Federal Hours of Service Act (hereinafter “HSA”)

was amended by Congress in 1976 to protect employees

who are required to stay in sleeping quarters provided by

railroads at or near yards where there is switching of rail

cars. It provided:

Employees’ hours of service

(a) Limitations

It shall be unlawful for any common carrier, its

officers or agents, subject to this chapter—

=) eae

yt

(3) to provide sleeping quarters for em-

ployees (including crew quarters, camp or bunk

cars, and trailers) which do not afford such em-

ployees an opportunity for rest, free from inter-

ruptions caused by noise under the control of the

railroad, in clean, safe, and sanitary quarters; or

(4) to begin construction or reconstruction

of any sleeping quarters referred to in paragraph

(3), on or after July 8, 1976, within or in the

immediate vicinity (as determined in accordance

with rules prescribed by the Secretary) of any

area where railroad switching or humping opera-

tions are performed. (Emphasis added).

49 U.S.C. § 62 (repealed 1994)

In 1994, Congress codified the transportation safety

laws. The codification legislation makes it clear that the

3

new law was not intended to make any substantive

changes to what existed at the time of its passage. (See

H.R. Rep. No. 180, 103d Cong., Ist Sess. 5 (1993).

The new statutory provision appears at 49 U.S.C. § 21106

as follows:

A railroad carrier and its officers and agents—

(1) may provide sleeping quarters (including crew

quarters, camp or bunk cars and trailers) for em-

ployees, and any individuals employed to maintain

the right of way of a railroad carrier, only if the

sleeping quarters are clean, safe, and sanitary and

give those employees and individuals an opportunity

for rest free from the interruptions caused by noise

under the control of the carrier; and

(2) may not begin, after July 7, 1976 construction

or reconstruction of sleeping quarters referred to in

clause (1) of this section in an area or in the im-

mediate vicinity of an area, as determined under reg-

ulations prescribed by the Secretary of Transportation,

in which railroad switching or humping operations

are performed. (Emphasis added).

49 U.S.C. § 21106 (1994)

REGULATION INVOLVED

The relevant regulation provides:

§ 228.101 Distance requirement; definitions.

(a) The Hours of Service Act, as amended (45

U.S.C. 61-64b), makes it unlawful for any common

carrier engaged in interstate or foreign commerce by

railroad to begin, on or after July 8, 1976, the con-

struction or reconstruction of sleeping quarters for

employees who perform duties covered by the act

“within or in the immediate vicinity (as determined

in accordance wth rules prescribed by the Secretary

of Transportation) of any area where railroad switch-

ing or humping operations are performed.” 45 U.S.C.

62(a)(4). This subpart sets forth (1) a general

4

definition of “immediate vicinity” (§ 228.101(b)),

(2) procedures under which a carrier may request a

determination by the Federal Railroad Administra-

tion that a particular proposed site is not within the

“immediate vicinity” of railroad switching or hump-

ing operations (§§ 228.103 and 228.105), and (3)

the basic criteria utilized in evaluating proposed sites

(§ 228.107).

(b) Except as determined in accordance with the

provisions of this subpart. “The immediate vicinity”

Shall mean the area within one-half mile (2,640

feet) (804 meters) of switching or humping oper-

ations as measured from the nearest rail of the near-

est trackage where switching or humping operations

are performed to the point on the site where the car-

rier proposes to construct or reconstruct the exterior

wall of the structure, or portion of such wall, which is

closest to such operations.

(c) As used in this subpart—

(1) Construction shall refer to the—

(i) Creation of a new facility;

(ii) Expansion of an existing facility;

(iii) Placement of a mobile or modular facility;

= (iv) Acquisition and use of an existing building.

(2) Reconstruction shall refer to the—

(i) Replacement of an existing facility with a new

facility on the same site; or

(ii) Rehabilitation or improvement of an existing

facility (normal periodic maintenance excepted) in-

volving the expenditure of an amount representing

more than 50 percent of the cost of replacing such

facility on the same site at the time the work of re-

habilitation or improvement began, the replacement

cost to be estimated on the basis of contemporary

construction methods and materials.

49 C.F.R. § 228.101 (1998).

iii

5

STATEMENT OF THE CASE

This case presents a classic example of a matter that

warrants the grant of certiorari. There exists a split in

three federal circuits regarding the scope of authority of

the Federal Railroad Administration (hereinafter “FRA”)

to promulgate regulations under the Hours of Service

Act (hereinafter “HSA”), and it involves a serious rail-

road safety matter.

On or about April, 1996, the Petitioner learned that

the Norfolk and Western Railway Company was planning

a major reconstruction of its sleeping quarters located in

its railroad yard at Moberly, Missouri. The said facility

is more than 30 years old and is in a dilapidated condi-

tion. The sleeping quarters contains 20 rooms for use by

employees represented by Petitioner. At various times

during 1996, the Petitioner informed the FRA that Peti-

tioner opposed the remodeling on both safety and statutory

grounds. See App. C, 10a-1la. The FRA responded to

Petitioner on February 27, 1997. App. D, 12a-15a.

It is undisputed that the railroad intends to begin a

major reconstruction of its sleeping quarters located at

the railroad’s Moberly, Missouri railroad yards. The

sleeping rooms will get new ceilings, beds, paint, room

darkening shades, new windows, all doors will be re-

placed, and the upstairs will be replaced with individually

controlled heating and air conditioning units in each

room. The shower areas will be redesigned to include an

additional shower and private dressing rooms for each

shower, new ceilings, exhaust fans, toilets, stalls, sinks,

mirrors, an additional bathroom for female employees,

and additional electrical outlets. Appliances in the kitchen

will be replaced, a fire suppression system will be in-

stalled, and the restaurant will be renovated. Hallway

and stairway doors will be replaced and additional doors

will be added to insulate the sleeping rooms from noise,

carpet runners in the hallways will be installed, and the

ceiling and light fixtures in the hall will be replaced. The

recreation area will be painted, the washroom will have

a new toilet and ceiling installed, and the locker room

will be painted. The central air conditioning units in the

recreation room and the restaurant will be replaced and

moved into the boiler room. Lastly, the exterior of the

building will be painted, the guard rail will be removed,

and a fence will be placed around the dumpster area.

J.A. 54-55; see also J.A. 522

The estimated cost of the reconstruction is $229,500.00.

J.A. 49-50. In 1997, the Randolph County, Missouri

Assessor appraised the current building at $129,337.00,

and the land is appraised for an additional $50,000.00.

J.A. 91-93. The sleeping quarters are located within 95

feet of a main rail line J.A. 64, and within 150-200 feet

of a major public crossing. J.A. 45, 64. Switching of

railroad equipment, including hazardous materials, com-

monly occurs in the yards which are located nearby.

As pointed out in United Transportation Union vy. Dole,

797 F.2d 823 (10th Cir. 1986), the impetus for amend-

ing the HSA came from two major accidents in the mid

1970’s where explosions in rail yards involving hazardous

materials being switched resulted in numerous deaths:

With the Hours of Service Act, Congress intended

to improve the safety of sleeping accommodations

that railroads provided for crews. Impetus for streng-

thening the safety standards in 1976 came from two

accidents in the mid-1970s, where explosions in rail

yards involving hazardous substances being switched,

claimed the lives of trainmen and injured hundreds

of employees and townspeople. As part of these new

remedial provisions, railroads were required to main-

tain sleeping facilities for crews no closer than one-

half mile to any area where switching or humping

operations were performed. 45 U.S.C. § 62(a)(4)

and 49 C.F.R. § 228.101(b) (1985).

Id. at 825.

1 The citation “J.A.” refers to the Joint Appendix in the Eighth

Circuit.

7

On May 15, 1976, the House Committee on Interstate

and Foreign Commerce favorably reported the legislation

referred to above. H.R. Rep. No. 94-1166, 94th Cong.,

2d Sess. (1976) (hereinafter “H.R. Rep.”). It noted the

explosion in the rail yards at Decatur, Illinois on July 19,

1974, where 7 employees were killed and over 100 were

injured.* H.R. Rep. at 11. The tank car rupture demol-

ished the crew quarters and the eating facility in the

middle of the yard. The Committee also pointed out that

the labor organizations had filed a petition with the FRA

in August 1974, to require every railroad to move its

sleeping quarters at least one mile away from its yards,

where switching or humping is performed. Concerning

the previously mentioned failure of FRA to act on the

petition, the Committee said, “Because of FRA’s inaction,

the Committee feels it must take initiative to protect

workers who are forced to sleep in the railroad yards.”

H.R. Rep. at 11.

For the purposes of this litigation, it is significant that

the only specific authority given to the Secretary by Con-

gress is in setting the specific distance that a sleeping

quarters must be away from switching operations. There

is no other discussion anywhere in the legislative history,

nor in the statute, which gives the Secretary any other

rulemaking authority.

In adopting the crew quarters legislation, Congress did

not place a specific mileage limitation on the location of

the sleeping quarters. The House Committee, in specifi-

cally limiting the Secretary’s rulemaking authority, stated

that “[t]he Secretary, after appropriate rulemaking, may

determine that sleeping quarters shall be a specific dis-

2In fact, over 300 persons were injured. See 41 Fed. Reg. 53028

(1976).

3 The Senate Committee on Commerce did not have an opportunity

to address the merits of this amendment because of the Budget

Act’s statutory deadline to report all authorizations for fiscal year

1977, by May 15, 1976. S. Rep. No. 855, 94th Cong., 2d Sess. 3

(1976).

8

tance away from the area of switching.” H.R. Rep. at

11. Nowhere does the House Report discuss giving the

FRA the power to promulgate regulations defining con-

struction or reconstruction, nor to define “crew quarters.”

The singular power the House Report discusses in regard

to the Secretary’s power is to determine “specific dis-

tance.”

Additionally, the Committee required that sleeping

quarters for employees must be provided which “afford

such employees an opportunity for rest free from inter-

ruption caused by noise under the control of a railroad,

and the quarters must be clean, safe, and sanitary.” H.R.

Rep. at 11. The Committee said the matter of what was

clean, safe, and sanitary means that it should be “free

from rats, roaches, and other vermin.” H.R. Rep. at 12.

The HSA amendments became effective on July 8,

1976. The FRA then published interim rules covering

these amendments at 41 Fed. Reg. 53028 (1976). Con-

currently, a Notice of Proposed Rulemaking was issued

with respect to the interim rules adopted on the same

date. 41 Fed. Reg. 53070 (1976). A public hearing on

the NPRM was held on March 1, 1977. The final rule

was published on July 19, 1978. 43 Fed. Reg. 31006

(1978.)

It is important that, in each of the above rulemaking

proceedings, the FRA accurately repeated the limited

scope of its authority, but then issued rules far beyond

the limited authority given to it by Congress. The FRA

said in its preamble to the initial rulemaking proceeding:

The new provision, which became effective on July

8, 1976, makes it unlawful for any common carrier

by railroad to begin construction or reconstruction

of sleeping quarters for employees covered by the

Act, after the effective date of the provision, within

or in the immediate vicinity (as determined in ac-

cordance with rules prescribed by the Secretary) of

ee &

9

aily area of railroad switching or humping operations

are performed.

41 Fed. Reg. 53028 (1976) (Emphasis added).

Substantially the same quoted wording is repeated at

41 Fed. Reg. 53070-71 (1977), 42 Fed. Reg. 27895

(1977), and 43 Fed. Reg. 31006 (1978).

The significant error by the Eighth Circuit was its

upholding the regulation despite the fact that the FRA

had been given very limited regulatory authority. The

FRA was given authority only to consider whether or not

the sleeping quarters are within or in the immediate

vicinity where switching or humping operations occur,

and nothing else. Despite such Statutory limits on its

rulemaking authority under the HSA, the FRA promul-

gated broad sleeping quarters rules, which included defin-

ing construction and reconstruction, at issue in this case.

REASONS FOR GRANTING THE PETITION

I. THERE IS A SPLIT IN THE CIRCUITS REGARD-

ING THE SCOPE OF POWERS OF THE FEDERAL

RAILROAD ADMINISTRATION TO PROMULGATE

REGULATIONS UNDER THE HOURS OF SERVICE

ACT.

The Seventh, Eighth and Tenth Circuits have reached

differing conclusions regarding the powers of the FRA

to promulgate regulations under the HSA.

10

A. The Eighth Circuit Has Concluded That Even

Though the Railroad Violated the “Spirit” of the

Hours of Service Act in Renovating the Sleeping

Quarters at Moberly, Missouri, Under the Court’s

Doctrine in Chevron U.S.A., Inc. v. Natural Re-

sources Defense Counsel, Inc., 467 U.S. 837 (1984),

the Federal Railroad Adminstration’s Regulations

Are Given Controlling Weight.

B. The Tenth Circuit Has Concluded That Under the

Hours of Service Act, a Railroad Should Make No

Significant Additional Investment in Sleeping

Quarters Near Hazardous Railroad Switching cor

Humping Operations After July 1976.

In United Transportation Union v. Dole, 797 F.2d 823

(10th Cir. 1986), Judge Logan, concurring in the opinion

of the court, stated that Congress, in enacting § 21106(2),

was frustrated with FRA’s “earlier inaction on safety

matters.” and, consequently, intended “that a railroad

should make no significant additional investment in sleep-

ing quarters near hazardous railroad switching or hump-

ing erations after July, 1996.” Id. at 832.

C. The Seventh Circuit Has Ruled That the Federal

Railroad Administration’s Interpretation of the

Hours of Service Act Was Entitled to No Deference.

and That the Federal Railroad Administration Has

Not Been Granted General Rule-Making Authority

by Congress.

The Eichth Circuit is also in conflict with the Seventh

Circuit. The latter court, in Atchison, Topeka and Santa

Fe Railway Co., v. Pena, 44 F.3d 437 (7th Cir. 1994),

aff'd, 516 U.S. 152 (1996), concluded that FRA’s inter-

pretation of the HSA was entitled to no deference.* I[d.

at 439, 445. The court stated:

While the Hours of Service Act is not unambiguous.

the FRA’s interpretation is not entitled to the gen-

4 Although the Seventh Circuit was interpreting a different sec-

tion of the HSA in that case, the extent of the FRA powers was at

issue.

1]

erous treatment afforded agency interpretations un-

der Chevron. Both the railroads 5 and the FRA agree

on an important point: that the FRA has not been

granted rule-making authority by Congress. The Su-

preme Court made clear in Chevron, 467 U.S. at 843-

44, that only statutory interpretations by agencies

with rule-making powers deserve substantial defer-

ence.” ie

Id. at 441.

The Court, in affirming the judgment of the Seventh

Circuit, stated that it granted certiorari in the case “[b]e-

cause of the importance of uniform nationwide applica-

tion of the HSA’s regulatory scheme. . . .” Pena, 516

U.S. at 156. The divergent views of the three circuits

certainly do not lend themselves to a uniform application

of the HSA’s regulatory scheme.

It is undisputed that the FRA does not have general

rulemaking authority under the HSA. This was conceded

in the Seventh Circuit case, Pena, 44 F.3d at 441. The

FRA has sought such authority from Congress on various

occasions, and has not been granted.

In prepared testimony during the current Congress, the

respondent FRA Administrator again stated that “FRA

lacks the regulatory authority . . . to address hours of

duty of safety-sensitive employees.” She also acknowl-

edged that FRA had sought regulatory authority over the

areas of hours of service in 1991 and 1994. Reauthoriza-

tion of the Federal Railroad Administration: Hearings

before the Subcommittee on Railroads of the Senate Com-

mittee on Transportation and Infrastructure, 105th Cong.,

2d Sess. (1998) (hereinafter 1998 Hearings). See also

Railroad Safety and H.R. 4545: Hearings Before the Sub-

committee on Transportation and Hazardous Materials of

the House Committee on Energy and Commerce, 103d

5 It should be noted that the Norfolk and Western Railway Com-

pany, respondent in the present litigation was one of the petitioner

railroads in that case.

12

Cong., (1994); Oversight and Reauthorization of Rail

Safety Programs and S. 2132, The Federal Railroad

Safety Authorization Act: Hearings Before the Subcom-

mittee on Surface Transportation of the Senate Commit-

tee on Commerce, Science, and Transportation, 103rd

Cong., 2d Sess. 10 (1994); Railroad Safety Programs

(Part 2): Hearings Before the Subcommittee on Trans-

portation of Hazardous Materials of the House Committee

on Energy and Commerce, 102d Cong., 2d Sess. 42

(1992); Railroad Safety Programs: Hearings Before the

Subcommittee on Transportation and Hazardous Materials

of the House Committee on Energy and Commerce, 102d

Cong., Ist Sess. 57-58 (1991).

The relevant provision of the statute grants FRA au-

thority only to issue regulations determining the “immedi-

ate vicinity of an area.” 49 U.S.C. §21106(2). Never-

theless, the FRA promulgated regulations defining “re-

construction.” 49 C.F.R. § 228.101. On this point, the

Eighth Circuit concluded that it cid not agree with the

Petitioner’s reading of the statute. App. A at 6a.

The cardinal rule of statutory construction is to enforce

the plain language of the statute according to its terms.

United States v. Ron Pair Enterprises, Inc., 489 U.S.

235, 241 (1989). Whether the language is plain is “de-

termined by reference to the language itself, the specific

context in which the language is used, and the broader

context of the statute as a whole.” Robinson v. Shell Oil

Co., 519 U.S. 337 (1997).

Agency power is “not the power to make law. Rather,

it is ‘the power to adopt regulations to carry into effect

the will of Congress as expressed by the statute.’” Ernst

& Ernst v. Hochfelder, 425 U.S. 185, 213-14 (1976)

(quoting Manhattan General Equipment Co. v. Commis-

sion, 297 U.S. 129, 134 (1936)). The issue is correctly

framed as whether Congress intended to delegate such

jurisdiction to the FRA. See Bowen v. Georgetown Uni-

13

versity Hospital, 488 U.S. 204, 108 (1988) (“It is axio-

matic that an administrative agency’s power to promulgate

legislative regulations is limited to the authority delegated

by Congress”); INS v. Chadha, 462 U.S. 919, 953 n.16,

955 n.19 (1983) (agency action “is always subject to

check by the terms of the legislation that authorized it;

and if that authority is exceeded it is open to judicial

review,” and “Congress ultimately controls administra-

tive agencies in the legislation that creates them”). This

fundamental misconception by the Eighth Circuit regard-

ing this principle of law skewed its analysis.

The Eighth Circuit stated that it relied on Chevron

for its decision to uphold FRA’s regulation. Under Chev-

ron, however, the intent of Congress must first be ex-

amined, because “if the intent of Congress is clear, that is

the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent oc

Congress.” Chevron, 467 U.S. at 842-43. “It is only if

the intent of Congress is ambiguous that we defer to a

permissible interpretation by the agency.” Chevron, 467

U.S. at 843. The Court has stated that “[a] precondition

to deference under Chevron is a Congressional delegation

of administrative authority.” Adams Fruit Co. vy. Bar-

rett, 494 U.S. 638, 649 (1990).

No deference is due the FRA’s construction of the

HSA unless it acts within the bounds of its Congression-

ally-established authority. Ascertaining Congressional

intent is of particular importance where, as here, an

agency is attempting to expand the scope of its jurisdic-

tion. See, e.g., Adams Fruit Co., 494 U.S. at 650 ( quot-

ing Federal Maritime Commission y. Seatrain Lines, Inc.,

411 U.S. 726 745 (1973) (“An agency may not boci-

strap itself into an area in which it has no jurisdiction” );

ACLU vy. FCC, 823 F.2d 1554, 1567 (D.C. Cir. 1987),

cert. denied, 485 U.S. 959 (1988) (“When an agency’s

assertion of power into new arenas is under attack, there-

fore, courts should perform a close and searching analysis

14

of congressional intent, remaining skeptical of the propo-

sition that Congress did not speak to such a fundamental

issue”); Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910,

916 (3d Cir. 1981) (“The more intense scrutiny that is

appropriate when the agency interprets its own authority

may be grounded in the unspoken premise that govern-

ment agencies have a tendency to swell, not shrink, and

are likely to have an expansive view of their mission’’).

The recognized standard for the construction and ap-

plication of referential and qualifying words appears in

Sutherland Statutory Construction:

Referential and qualifying words and phrases,

where no contrary intention appears, refer solely to

the last antecedent. The last antecedent is ‘the last

word, phrase, or clause that can be made an ante-

cedent without impairing the meaning of the sen-

tence’. Thus a proviso usually is construed to apply

to the provision or clause immediately preceding it.

2A Norman J. Singer, Sutherland Statutory Construction

§ 47.33 (Sth ed. 1992)

Applying that rule to the statute at issue, the words

“area or in the immediate vicinity of an area” are immedi-

ately followed and modified by the clause “as determined

under regulations prescribed by the Secretary of Transpor-

tation”. It does not modify construction, reconstruction,

or crew quarters. It modifies only “area or in the immedi-

ate vicinity of an area.”

Il. THERE EXISTS A SERIOUS SAFETY ISSUE

WHICH IS DIRECTLY IMPACTED BY THE DECI-

SION OF THE EIGHTH CIRCUIT.

The centerpiece of the Administration’s proposed safety

legislation this Congress is a provision to deal with the

6 We submit that the originally adopted amendment was even

clearer by the modifying clauses being in parenthesis. See 49 U.S.C.

§ 62 (repealed 1994), supra at 2-3.

15

problem of fatigue. /998 Hearings at 203. There can be

no justifiable disagreement that there exists a direct re-

lationship between fatigue and accidents. See, e.g., H.R.

Rep. No. 91-469, 91st Cong., Ist Sess. 6 (1969); and

1998 Hearings. Stress in the workplace, resulting from

long and irregular work hours, has long been a source of

concern for railway workers, and has recently come to

the attention of society at large. When Congress amended

the HSA in 1976, it was primarily concerned about the

health and safety problems presented by sleeping quarters

located in railroad yards. Congress intended that such

sleeping quarters eventually be removed from the yards,

and it prohibited any major reconstruction of their exist-

ing sleeping quarters. Keeping employees housed at loca-

tions where they cannot get proper rest creates a major

fatigue problem. This has been shown to result in health

problems as well. See Bailey v. Norfolk and Western

Railway Co., 942 §$.W.2d 404 (Mo, App. 1997).

Accidents caused by human error have consistently

been a significant portion of the total number of railroad

accidents occurring in any given year. In the past seven

years railroad accidents caused by human error have ac-

counted for approximately one-third of all train accidents.

Preliminary statistics for 1997 also show that 33% of the

accidents were caused by human error. /998 Hearings at

804.

According to Dr. Charles Czeisler, then Director of

Circadian and Sleep Disorders Medicine at Brigham and

Women’s Hospital in Boston, “because their reaction time

is affected .. . sleep deprived people may be more prone

to making mistakes on the job.” New York Times. May

15, 1990, at C8. Indeed, sleep researchers indicate that

sleepiness is second only to drunkenness as a cause of

automobile accidents.

James Hall, Chairman of the NTSB, testified at the

1998 Hearings that “Thjuman fatigue in transportation

16

operation is probably the most widespread safety issue in

the transportation industry, and it has been an item on the

Safety Board’s ‘Most Wanted’ list of transportation safety

issues since its inception in 1990.” 1998 Hearings at 317.

He stated in his prepared testimony that “[t]he current

railroad hours of service laws permit, and many railroad

carriers require, the most burdensome fatigue-inducing

work schedule of any federally regulated transportation

mode in this country.” 1998 Hearings at 460. We sub-

mit that one of the greatest contributing factors to such

fatigue is requiring tired employees to try to obtain rest

in busy and very noisy rail yards, in sleeping quarters

that have persons constantly talking, walking, laughing

and banging doors in the hallways 24 hours a day.

James L. Kolstad, former Chairman of the National

Transportation Safety Board, addressed the fatigue issue

before Congress, stating:

Human performance is still the most important factor

in any accident, in any mode of transportation. An

operator who is inattentive, for whatever reason, can

expect to find himself in an accident sooner or later.

Too often, that inattention is caused by fatigue.

Railroad employees, especially train crews, are con-

fronted by very unpredictable and tiring work sched-

ules—a situation that has not changed since the be-

ginning of railroading. The changing nature of rail-

road operations and competitive factors have in-

creased the relative number of crew members and

others in safety sensitive positions who must work

irregular and unpredictable shifts—often on a long

term basis.

Railroad Safety Programs: Hearings Before the Subcom-

mittee on Transportation and Hazardous Materials of the

House Committee on Energy and Commerce, 102d Cong.,

Ist Sess. at 167 (1991).

|

17

Also, Mr. Kolstad said that “[w]e have found in accident

; after accident that workload and work/rest issues have

been critical factors.” Jd. Fatigue continues to be on the

10 Most Wanted list of the NTSB. 1998 Hearings at 317.

See also Transportation A ppropriations: Hearings Before

the Subcommittee on Transportation of the House Com-

mittee on Appropriations, 102d Cong., Ist Sess. 152

(1991) (statement of James L. Kolstad, Chairman, Na-

tional Transportation Safety Board).

The FRA itself has undertaken several studies of the

issue related to fatigue. See Issues in Locomotive Crew

Management and Scheduling, U.S. Department of Trans-

portation, Federal Railroad Administration DOT/FRA/

RRP-91-01 and DOT-VNTSC-FRA-9 1-1] (February,

1991), and Engineman Stress and Fatigue: Pilot Tests,

U.S. Department of Transportation, Federal Railroad Ad-

ministration, DOT/FRA/ORD-92-17 (June, 1992) (Dis-

cussed in 1998 Hearings at 793-794). In the earlier study,

one of the findings was that eight hours off duty seldom

translates into more than four hours sleep because of the

time required to get a motel and eat, coupled with the

| fact that sleep will be interrupted by a telephone call two

hours before the next job starts. See 1998 Hearings at

793-794. The sleep records of engineers in the study were

irregular and atypical when compared with non-engineer

participants. 7d.

Based upon the serious consequences to safe railroad

operations that arise from the Opinion of the Eighth Cir-

cuit in ruling contrary to the regulatory authority granted

by Congress to the FRA, this case warrants review by the

Court.

18

CONCLUSION

Based upon the conflict in three circuits and the sig-

nificant safety issue involved, we respectfully request that

the Court grant the petition.

Respectfully submitted,

Of Counsel: LAWRENCE M. MANN *

CLINTON J. MILLER, III ALPER, MANN & WEISBAUM, P.C.

General Counsel 1730 K Street, N.W.

UNITED TRANSPORTATION Suite 1107

UNION Washington, D.C. 20006

14600 Detroit Avenue (202) 298-9191

Cleveland, Ohio 44107 * Counsel of Record

(216) 228-9400

October 14, 1998