# Opposition Brief — United Transportation Union v. Slater

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1023%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1103

## Text

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

io
ij

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

202) 366-9285

/ P02) 5] y

Sol CITO) ( v4 real
>
of Rec

Cow Ne¢ j
Dy partie ) ‘ gs
Wa: hingtor és DD

;

p>”
wow A

C

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

Page
III ssi cin pcaeinepbecbinctesbiomsinibbennecie ]
I itn oa enllaeaenedbabgaciin l
SOE TALIS OS CAO REEL OTOL ET TOR PORTIA TOC ES FON 2
Argument peiiieky a aecaiah chk canis ache ic deca dbacnaldibnintsonusaasnciniehoosnient 7
a i ebhesisbedaeanduedssunusbiobocnibeiniolanisnm besa 1]
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:
a i ahdaed ennbenuila nes 2
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.
a ail eigenen nendudaleinmenenion fe)

(IIT)

IV

Statutes and regulations—Continued: Page
Hours of Service Act, 45 U.S.C. 61-64b (1988 & 3
RN SOI sie nntemalace<ubicebnatesedva sana iiesaisvebzeid nak 2
ROU IEA a: THOME teat scci i nsiitigbaschscisdpoikces htt 2
PB SB. ES RS |. 1) Zoemilnaies Gripen twats om mmne Cem nandlye tea amar rr thera 2
MALTA. RS vicedhesvdskises sekibenieudishinaioesnastoamansanix 2,9
WD AS hs ORI ck picecetscccunnctnacickavatanbissanscssipaienicess 6
MRS AS, SEG sivccac intra eVareclsctndusisisbidstntisaiice 2
BP os aso tkesy en ona piensa ae oedesinetsdeebeaotpesettine 3, 5
BE ETA, SARORED inch bivesicerccpusnnenshecuiieanaesies 3, 4, 5, 6, 10
BP US FA Be si nee nciicateen ca Finbibatiinisches 3, 5, 6, 7, 9, 10
BP SSA. RE ED seksinenasttuneartsehotrhestiaanccctrignenates 2
49 C.F.R.:
ENON ED ess shcdustcey dunssicshsbasdasascaapas ben nevanbonean 2
PU BOR: BR 62 ssistoieravaitenucdapencasepnpe rin obdeaers 3
ection SABO GME) inchs cedetesncstatesvsirsdivestsiiveneeiss 4
Section: ZEB TOMO vcicvesscssecesvevessriswnctéominasns 10
Miscellaneous:
43 Fed. Reg. (1978):
DDE <tinuccvecsinsonsvvsatecisesssheaveansvanshéseapseservotdsonaanse 3
Bid. AIO Gant sotcecbanvaveicesosnaiveeekonaniivencneainanzenredies 3
Wh. SAPO stdicincdaniachsesAavcenpekacn sins cones suabentrvondsaeddieeene 4
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1023%3A4. Public record. Not legal advice.