Opposition Brief — United Transportation Union v. Slater

No. 98-627

a

: UPREME CQURT, U.S,

In the Suprene Court of theres oouer us,

OCTOBER TERM, 1998

FILED

DEC 16 psy,

UNITED TRANSPORTATION UNION, PETITIONER

RODNEY SLATER, SECRETARY OF TRANSPORTA

ET AL.

ATION

ON PETITION FOR A WRIT OF CERTIORAR!

lO THE UNITEDSTATES COURT OF APP!

F

i ia

FOR THE EIGHTH CIRCI

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BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

SETH P. WAXMAN

NANCY E. MCFADDEN

General Counsel

U.S. De partir nt of

Transportat )})

Wa shington, D.C. 20590

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QUESTION PRESENTED

Whether the Federal Railroad Administration’s

regulatory definition of the term “reconstruction” in 49

S.C. 21106(2) reflects a permissible exercise of rule-

making authority conferred by statute.

mee gl es See tie eae rs 0

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Atchison, Topeka & Santa Fe Ry. v. Pera,

44 F.3d 437 (7th Cir. 1994), aff’d 516 U.S. 152

ca eo ctsesintaphcuiibeeneniande s

Chemical Mfrs. Ass'n v. EPA, 919 F.2d 158

a AEE aacdes alanis deal ninedanidenctghinivhsspianbcsbtiasdasoesanenss &

Chevron U.S.A. Inc. Natural Re sources Defense

Council, Inc., 467 is Pe RE RUMI scsicies Gevisblaseadadicedsbkanbaaies 6

Commodity Futures Trading Comm'n vy. Schor,

RUEE Shae SOE CE IE ce scasineadunipgiciins treccerthbeatenstenebinnrbediacyinnes S

Mandina vy. United States, hid F.2d 1110 (8th C ir.),

RT UTI, BAS Aira Bd CLF) cceecsstsdienciesnnsncccdendsincsncceczese gy

Mississippi Power & Light Co. v. hacen ex rel,

en 0 ne ieahicuanvaaancs rat

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

EAI, BUI scala icine nascanapecsiahonaiatianobpeed vnbadepinegeceselie 7

Statutes and regulations:

Act of July 5, 1994, Pub. L. No. 103-272, 108 Stat.

745:

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TU? SI a a da dia aneioveemnstieiig cient 2

Federal Railroad Safety Authorization Act of 1976,

Pub. L. No. 94-348, § 4(a), 90 Stat. 818 .0..........ccccccoresecesees 2

Hobbs Administrative Orders Review Act, 28 U.S.C.

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IV

Statutes and regulations—Continued: Page

Hours of Service Act, 45 U.S.C. 61-64b (1988 & 3

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49 C.F.R.:

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ection SABO GME) inchs cedetesncstatesvsirsdivestsiiveneeiss 4

Section: ZEB TOMO vcicvesscssecesvevessriswnctéominasns 10

Miscellaneous:

43 Fed. Reg. (1978):

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H.R. Rep. No. 1166, 94th Cong., 2d Sess. (1976) ........ i)

H.R. Rep. No. 180, 103d Cong., Ist Sess. (1993) ........ 2

2A Norman J. Singer, Sutherland Statutory Con-

etricction CEE OG. SORE) cccicssanincdincrsistrsisrioveasissencnsns 9

Jn the Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-627

UNITED TRANSPORTATION UNION, PETITIONER

vU.

RODNEY SLATER, SECRETARY OF TRANSPORTATION,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-8a)

is reported at 149 F.3d 851. The decision of the Federal

Railroad Administration (Pet. App. 12a-15a) is un-

reported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 9a)

was entered on July 16, 1998. The petition for a writ of

certiorari was filed on October 14, 1998. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. The federal hours of service laws, known collec-

tively prior to 1994 as the Hours of Service Act (HSA),

are intended to promote railroad safety by ensuring

that fatigue does not prevent railroad employees from

properly performing their duties.’ The Secretary of

Transportation is charged with the administration of

_those laws. 49 U.S.C. 103(a). The Secretary has dele-

gated those functions to the Administrator of the Fed-

eral Railroad Administration (FRA), a modal admini-

stration of the Department of Transporiation (DOT).

49 U.S.C, 108(¢); 49 C.FLR. 1.49(d).

In the Federal Railroad Safety Authorization Act of

1976, Congress amended the HSA to include two pro-

Visions relating to railroad employee sleeping quarters.

Pub. L. No, 94-348, § 4(a), 90 Stat. 818. Those sleeping

quarters serve as lodging at away-from-home terminals

for train crews, providing them food and lodging during

short-term layovers between tours of duty. The first of

those provisions requires that all sleeping quarters

must be “clean, safe, and sanitary” and must give resi-

dents “an opportunity for rest free from the interrup-

tions caused by noise under the control of the carrier.”

' In 1994, Congress repealed the Hours of Service Act (then

codified at 45 U.S.C. 61-64b) and the other federal railroad safety

statutes and reenacted them as part of a broad recodification of the

federal transportation laws. See Act of July 5, 1994, Pub. L. No.

103-272, § 1, 108 Stat. 745. They are now codified at 49 U.S.C.

20102, 21101-21108, and 21303-21304. The recodification made no

substantive changes to those statutes, although it altered their

arrangement and made editorial changes to many provisions,

including those at issue in this case. See Pub, L. No. 103-272, §

6(4), 108 Stat. 1378; H.R. Rep. No. 180, 108d Cong., Ist Sess. 1-5

(1993). All references to the hours of service laws are to the

recodified version.

49 U.S.C. 21106(1). The second sleeping quarter provi-

sion states:

A railroad carrier and its officers and agents—

* kek K Kk

(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 imme-

diate vicinity of an area, as determined under regu-

lations prescribed by the Secretary of Transporta-

tion, in which railroad switching or humping opera-

tions are performed.

49 U.S.C, 21106(2),

While Section 21106(2) prohibits the “construction or

reconstruction” of sleeping quarters in yards where

potentially hazardous railroad switching and humping

operations take place, it does not restrict the continued

use of sleeping quarters that existed as of July 7, 1976.

The hours of service laws do not define the term “recon-

struction” or identify the point at which repair or reno-

vation of an existing facility comes within the restriec-

tions of Section 21106(2). In July 1978, after notice-and-

comment rulemaking, the FRA promulgated a final rule

implementing Section 21106(2). 43 Fed. Reg. 31,006.

The regulations identify the prospective sleeping

quarter locations that are subject to approval by the

FRA, indicate the information that must be submitted

with requests for location approvals, and discuss the

general policy considerations that the FRA employs in

ruling on requests for such approvals. Jd. at 31,006-

31,014; 49 C.F.R. Pt. 228, Subpt. C. In addition, the

d

regulations define the statutory term “reconstruction”

as follows:

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 ex-

cepted) involving 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 rehabilitation or improvement began,

the replacement cost to be estimated on the basis of

contemporary construction methods and materials.

43 Fed. Reg. at 31,009; 49 C.F.R. 228.101(¢)(2).

2. Petitioner is a labor union that represents rail-

road employees, including employees of the Norfolk and

Western Railway Company (N&W) who used sleeping

quarters located in the railroad’s yard in Moberly,

Missouri.” The Moberly facility had been the subject of

numerous complaints by N&W employees and peti-

tioner. Petitioner asserted that the facility violated

Section 21106(1) because it was not “clean, safe, and

sanitary” and did not provide railroad employees with

an adequate opportunity for undisturbed rest. C.A.

App. 6-18. In addition, county health authorities in-

spected the facility and found several health and safety

violations. Jd. at 21-29.

In the spring of 1996, N&W decided to renovate the

Moberly facility. C.A. App. 20. Because the Moberly

facility is located “in an area or in the immediate

vicinity of an area * * * in which railroad switching or

* On September 1, 1998, the Norfolk and Western Railway

Company ceased to exist upon its merger with the Norfolk South-

ern Railway Company. N & W Br. in Opp. 1 n.1.

5

humping operations are performed,” 49 U.S.C. 21106(2),

petitioner informed N&W that it opposed renovation,

insisting instead on the construction of a new facility

away from the railroad yard. C.A. App. 45-46. N&W

responded that the planned renovation would take

place and that the railroad had prepared renovation

plans addressing the poor conditions that the em-

ployees and the county had cited. Jd. at 51-55.

In September 1996, petitioner raised its objections to

N&W’s renovation plans with the FRA, prompting the

FRA to conduct its own inspection of the Moberly

facility to determine whether it was operating in viola-

tion of Section 21106. C.A. App. 58-59. The FRA’s

inspector found that the facility was not “clean, safe,

and sanitary” as required by Section 21106(1) and that

noise levels fron: the train yard prevented proper,

undisturbed sleep, but he did not recommend that

N&W be held in violation of that Section. Jd. at 64-65.

Instead, he chose to give the railroad an opportunity to

cure the facility’s deficiencies. Jd. at 66. The FRA also

determined, based on information provided by N&W,

that the cost of N&W’s planned renovations would be

approximately 25 percent of the cost of replacing the

facility at a different location. Id. at 48-50, 84-87.

In a February 1997 letter to petitioner’s General

Chairman, the FRA Administrator responded to peti-

tioner’s objections regarding the condition of the

Moberly facility and the propriety of N&W’s planned

renovations. The Administrator stated that the FRA

would give N&W a reasonable amount of time to cor-

rect sanitary problems found in FRA’s inspection of the

facility, that additional testing by FRA indicated that

the facility met the noise standard of Section 21106(1),

and that the cost of N&W’s planned renovations would

be approximately 25 percent of the cost of a new facility

eee i ee -

6

and therefore did not qualify as “reconstruction” within

the meaning of Section 21106(2).° Pet. App. 12a-15a.

The Administrator therefore denied petitioner’s re-

quest that the FRA prevent N&W from renovating the

Moberly facility.

3. The court of appeals affirmed the FRA’s decision.

Pet. App. la-8a.‘ The court held that “[t]he term ‘re-

construction,’ as used in § 21106(2), is imprecise and un-

clear.” Jd. at 7a. The court therefore held that, under

this Court’s decision in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

“the question of [that term’s] precise meaning is just

the kind of question for which we should defer to the

administering agency for a regulatory answer.” Pet.

App. 7a. The court of appeals rejected petitioner’s con-

tention that the FRA’s rulemaking authority under

Section 21106(2) is limited to defining the term

“immediate vicinity.” See id. at 5a, 7a. Finally, the

court held that the FRA’s definition of “reconstruction”

is not arbitrary, capricious, or contrary to law because

Section 21106(2) “contemplates some degree of renova-

tion or improvement” of facilities constructed before

July 7, 1976. Ibid.’

‘ Petitioner’s contention (Pet. 5) that “[i]t is undisputed that

the railroad intends to begin a major reconstruction of its sleeping

quarters” is obviously incorrect.

' Any “final action of the Secretary of Transportation” under

the hours of service laws is reviewable in the court of appeals

pursuant to the Hobbs Administrative Orders Review Act, 28

U.S.C, 2341 et seq. See 28 U.S.C. 2342(7); 49 U.S.C. 20114(e).

» Petitioner also contended that the FRA had arbitrarily failed

to find the Moberly facility in violation of Section 21106(1). The

court of appeals held that that claim was moot in light of the

planned renovation of the building. Pet. App. 8a. Petitioner does

not seek review of that holding.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or of another

court of appeals. Further review is therefore not

warranted.

1. Petitioner contends that “[t]he Seventh, Eighth

and Tenth Circuits have reached differing conclusions

regarding the powers of the FRA to promulgate regu-

lations under the” hours of service laws. Pet. 9. That

contention is incorrect.

Petitioner’s reliance on United Transporiation

Union v. Dole, 797 F.2d 823 (10th Cir. 1986), is particu-

larly misplaced. That case addressed the question

whether a railroad’s proposed reopening of pre-1976

rail yard sleeping quarters that it had purchased from

another railroad after 1976 fell under the FRA’s

regulatory definition of the term “construction” as used

in Section 21106(2). See 797 F.2d at 829-830. The

FRA’s statutory authority to issue that or any other

regulation implementing Section 21106(2) was not at

issue in the case. Petitioner’s sole basis for suggesting

the existence of a circuit conflict is the statement ina

concurring opinion that Congress, in enacting Section

21106(2), intended “that a railroad should make no

significant additional investment in sleeping quarters

near hazardous switching or humping operations after

July 1976.” 797 F.2d at 832 (Logan, J., concurring).

That statement was not part of the opinion for the

Tenth Circuit panel. In any event, the concurring judge

did not attempt to define the point at which “additional

investment in sleeping quarters” becomes so “signifi-

cant” as to constitute “construction” or “reconstruction”

within the meaning of Section 21106(2).

8

Petitioner’s reliance (Pet. 10-11) on Atchison, Topeka

and Santa Fe Railway v. Pena, 44 F.3d 437 (7th Cir.

1994) (en bane), aff’d, 516 U.S. 152 (1996) (ATSF), is

also misplaced. In ATSF, the Seventh Circuit held that

an interpretive rule issued by the FRA concerning

certain duty time provisions of the hours of service laws

was not entitled to deference. 44 F.3d at 441-444. The

statutory provisions at issue in ATSF, however, did not

grant the agency any general rulemaking authority.

Moreover, the interpretive rule under review in that

case did not reflect the agency’s independent exercise

of expert judgment. Rather, the FRA had simply

chosen to acquiesce, on a nationwide basis, in the deci-

sion of a single court of appeals, thereby reversing a 23-

year-old agency interpretation of the pertinent statu-

tory provision. Jd. at 441-444.

The instant case is distinguishable from ATSF in

several important respects. The statutory provision at

issue here includes an express grant of rulemaking

authority that exists nowhere else in the hours of

service laws.° Moreover, the FRA’s definition of “re-

construction” has been unchanged for 20 years, was

adopted through notice-and-comment rulemaking, and

represents the agency’s independent judgment regard-

® As petitioner conceded in the court of appeals (Pet. C.A. Rep.

Br. 5 n.2), an agency’s interpretation of a statutory provision that

defines the scope of its jurisdiction or authority is entitled to defer-

ence. See, e.g., Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833, 844-845 (1986); see also Mississippi Power & Light

Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 380-382 (1988)

(Sealia, J., concurring). Such deference to an agency’s interpreta-

tion of its statutory authority includes deference to interpretations

of provisions defining the scope of agency rulemaking authority.

See Chemical Mfrs. Assoc. v. EPA, 919 F.2d 158, 162-163 (D.C.

Cir. 1990).

9

ing the proper construction of the Statutory term. Peti-

tioner’s claim of a circuit conflict is therefore un-

founded.’

2. Petitioner contends (Pet. 12-14) that the FRA’s

rulemaking authority under Section 21 106(2) is limited

to defining the term “immediate vicinity.” That claim is

incorrect. The text of the statute imposes no such

limitation.” The legislative history on which petitioner

relies (Pet. 7-8) also does not support its position. The

House Report notes that under the Hours of Service

Act, “[t]he Secretary, after appropriate rulemaking,

may determine that sleeping quarters shall be a specific

distance away from the area of switching.” H.R. Rep.

No. 1166, 94th Cong., 2d Sess. 11 (1976). The House Re-

port does not address the question whether the Secre-

tary may promulgate regulations concerning other

* Similarly wide of the mark is petitioner’s implication (see Pet.

11-12) that the FRA’s requests to Congress to expand its regu-

latory authority under the hours of service laws show that the

agency does not currently have the authority to define “recon-

struction.” The FRA congressional testimony cited in support of

that proposition addresses portions of the hours of service laws

unrelated to the sleeping quarters provisions. The FRA has never

specifically requested a statutory expansion of its rulemaking

authority under Section 21106(2),

* Petitioner relies (Pet. 14) on the principle that “{rjeferential

and qualifying words and phrases, where no contrary intention

appears, refer solely to the last antecedent.” 2A Norman J. Singer,

Sutherland Statutory Construction 8 47.33 (5th ed. 1992). Courts

have refrained from applying that guideline, however, “when evi-

dent sense and meaning require a different construction.” Man-

dina v. United States, 472 F.2d 1110, 1112 (8th Cir.), cert. denied,

412 U.S, 907 (1973). As we explain below, the FRA’s decision to

promulgate a regulatory definition of the term “reconstruction”

serves the purposes of Section 21106(2) by providing clear guid-

ance as to the line between lawful and unlawful conduct.

10

aspects of Section 21106(2). Contrary to petitioner’s

suggestion (Pet. 7-8), that Report neither explicitly nor

implicitly suggests that the Secretary’s rulemaking

authority under Section 21106(2) is limited to defining

the term “immediate vicinity.” To the contrary, as the

court of appeals recognized, “[t]he term ‘reconstruc-

tion,’ as used in § 21106(2), is imprecise and unclear.

Therefore, under Chevron, the question of its precise

meaning is just the kind of question for which we should

defer to the administering agency for a regulatory

answer.” Pet. App. 7a.

Section 21106(2) clearly allows pre-existing sleeping

quarters to remain in operation, even where a facility is

located “in an area or in the immediate vicinity of an

area * * * in which railroad switching or humping

operations are performed.” Congress thus declined to

subject railroads to the expense that would have

resulted from an abandonment of existing facilities.

The statute presumably contemplates that some degree

of repair or renovation will be permitted on those

facilities; a contrary reading would prohibit even work

done to ensure that the facilities are “clean, safe, and

sanitary” as required by Section 21106(1). The FRA’s

definition of “reconstruction” permits “[r]Jehabilitation

or improvement of an existing facility” if, but only if,

that approach costs no more than 50% of the cost of

replacing the facility. 49 C.F.R. 228.101(¢)(2)(ii). The

FRA’s regulatory definition reasonably balances Sec-

tion 21106’s competing objectives, and the court of

appeals correctly sustained it.”

* Petitioner also cites several authorities relating to the impact

of railroad employee fatigue on safety (Pet. 14-17) and then con-

cludes (Pet. 17) that the decision below will have “serious con-

sequences to safe railroad operations.” There is no dispute that

1]

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

NANCY E. MCFADDEN

General Counsel

U.S. Department of

Transportation

DECEMBER 1998

providing railroad employees with adequate opportunities for rest

is an integral component of safe railroad operations. Nothing in

the hours of service laws suggests, however, that Congress re-

gards the FRA’s definition of “reconstruction” as inconsistent with

railroad safety.