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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1103

## Text

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1023%3A1. Public record. Not legal advice.