Opposition Brief — Waymire v. Norfolk & Western Railway Co.

Supreme Court, U.S.

J FILED

No. 00-594 DEC 15 2000

| OFFICE OF THE CLERK_|

IN THE aes

Supreme Court of the Anited States

JOSEPH J. WAYMIRE,

Petitioner,

Vv.

NORFOLK AND WESTERN RAILWAY COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

GEOFFREY L, BLAZI CARTER G. PHILLIPS *

STUART & BRANIGIN SIDLEY & AUSTIN

300 Main Street 1722 Eye Street, N.W.

Suite 800 Washington, D.C. 20006

Lafayette, IN 47902 (202) 736-8000

(765) 423-1561

Counsel for Respondent

December 15, 2000 * Counsel of Record

RES RS RNR THOS NIAAA LEER RT ATE ESTED TEI I ESET, SEN AMHR EGO HH HH

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether compliance with railway safety regulations

adopted by the Secretary of Transportation pursuant to the

Federal Railway Safety Act (“FRSA”), 49 U.S.C. § 20106,

protects a railroad from a claim of negligence arising under

the Federal Employers Liability Act (“FELA”), 45 U.S.C.

§ 51, when the claim is based on the same subject matter

covered by the regulations.

(i)

ii

PARTIES TO THE PROCEEDING AND

DESIGNATION OF CORPORATE RELATIONSHIPS

All of the parties to the proceeding below are named in the

caption. Respondent Norfolk and Western Railway Company

no longer exists as a separate entity and has been merged into

the Norfolk Southern Railway Company, the parent of which

is the Norfolk Southern Corporation. No other publicly held

corporation owns more than 10% of respondent’s stock.

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDING AND DESIGNA-

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TABLE OF AUTHORITIES ...ccccorscossssshecsscesesescsecensnes iv

RESPONDENT’S BRIEF IN OPPOSITION ................ l

REASONS FOR DENYING THE PETITION.............. 3

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TABLE OF AUTHORITIES

CASES Page

CSX Transp., Inc. v. Easterwood, 507 U.S. 658

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City of Milwaukee v. Illinois, 451 U.S. 304

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Crane v. Cedar Rapids & lowa City Ry., 395

Sa MO Ce ccccicasevisedigabibisvaeusannbiasabtandns 6

Norfolk S. Ry. v. Shanklin, 120 S. Ct. 1467

SGD atencsestesibshskiianitlsiabiitlinioepiessadedalateldunecciiaaidinin 2,8

United States v. Texas, 507 U.S. 529 (1993)......... 5

STATUTES

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LEGISLATIVE HISTORY

H.R. Rep. No. 91-1194 (1970), reprinted in 1970

U.S.C.C.A.N. 4104, and in 1-4 House

Miscellaneous Reports on Public Bills, IV

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IN THE

Supreme Court of the Anited States

No. 00-594

JOSEPH J. WAYMIRE,

Petitioner,

Wa

NORFOLK AND WESTERN RAILWAY COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

This is a strikingly unusual case in which a railroad

employee has sued his employer under the Federal Employers

Liability Act (“FELA”), 45 U.S.C. § 51, for injuries allegedly

suffered in a rail-highway grade crossing accident on the

theory that the railroad was negligent despite its compliance

with federal regulations. Most such cases are brought by an

individual in the vehicle that is struck by the train, who sues

under state tort law. See Pet. App. 4a (“The vast majority of

courts examining lawsuits arising out of automobile/train

collisions do so under state law.’’). Petitioner has identified

only three reported cases other than the decision below

involving this situation in the 30 years since the Federal

Railroad Safety Act (“FRSA”) was enacted, all from the

district courts. Indeed, petitioner recognizes that the issue

' See Pet. 12 (citing Rice v. Cincinnati, New Orleans & Pac. Ry., 955

F, Supp. 739 (E.D. Ky. 1997); Thirkill v. J.B. Hunt Transp., Inc., 950

F, Supp. 1105 (N.D. Ala. 1996); Earwood v. Norfolk S. Ry., 845 F. Supp.

880 (N.D. Ga. 1993)).

2

was one of “first impression” at the court of appeals level

when it was decided by the Seventh Circuit in this case. Pet.

11; see also id. at 12 (“This is the first decision issued by a

Court of Appeals wherein the FRSA precludes a plaintiff's

FELA claim.”). Given the absence of any conflict in the

Circuits and the infrequency with which the issue arises, this

case is manifestly unworthy of this Court’s review.

1. On June 8, 1996, petitioner was a conductor of a train

on a railroad operated by respondent. The train collided with

a truck at a grade crossing in Muncie, Indiana. Fortunately,

no one was seriously injured physically by the accident, but

petitioner claimed that he developed post-traumatic stress

syndrome. Accordingly, he filed suit against respondent

under FELA in the United States District Court for the

Northern District of Indiana, alleging that respondent’s

negligence caused the petitioner’s injuries. Specifically,

petitioner argued that the train operated at an excessive speed

by traveling at 25 miles per hour approaching an allegedly

hazardous grade crossing and that the railroad negligently

failed to provide additional warning protections at the grade

crossing to prevent vehicles from getting trapped on the

tracks.

Respondent filed for summary judgment, claiming that

neither common law theory was viable in light of regulations

adopted by the Secretary pursuant to FRSA. Respondent

argued that speed regulations adopted by the Secretary

covered the railroad’s responsibilities regarding train speeds,

and thus no claim of negligence was available if the railroad

complied with the Secretary’s speed regulation. See CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 674-75 (1993).

Similarly, the railroad contended that the crossing protections

had been installed using federal funds and that the Secretary

of Transportation (and not respondent) was_ therefore

responsible for the level of protection provided at that

crossing. See id. at 670-71; Norfolk S. Ry. v. Shanklin, 120 S.

Ct. 1467, 1474-76 (2000).

3

2. The district court granted the motion and dismissed

petitioner’s suit. The district court relied upon the policy

embodied in FRSA (49 U.S.C. § 20106) “‘to ensure

uniformity in law pertaining to railway safety.’” Pet. App.

14a (quoting Rice, 955 F. Sip. at 740). The court reasoned

that once the Secretary /had promulgated a_ regulation

designed to promote safety in a particular rail operation, that

regulation covered the subject matter and any claims of

negligence based on a different legal standard would

necessarily create disuniformity. /d. at 16a. Given the com-

prehensive delegation of authority under FRSA to the

Secretary to regulate all facets of rail safety, the district court

concluded that “the FRSA evinces a congressionai intent and

statutory purpose, manifested through the regulations, to

supplant federal common law on train speed and warning

devices.” /d. at 21a.

The court of appeals affirmed. Like the district court, the

court of appeals viewed the issue as “whether a railroad

company can be liable in a FELA negligence action claiming

unsafe speed and inadequate warning devices when the

complained of conduct complies with the conduct mandated

by FRSA and its regulations,” Pet. App. 3a. The court held

that FRSA’s command of uniformity in railway safety law

trumps petitioner’s FELA claims. /d. at 7a. Accordingly, the

court concluded that “because [respondent] complied with

FRSA and its regulations,” there was no basis for imposing

liability under FELA. /d. at 7a-8a.

REASONS FOR DENYING THE PETITION

Petitioner demonstrates why the case does not warrant

review by this Court. He correctly observes that the decision

below stands alone at the court of appeals level in addressing

the issue presented and that there are only three reported

district court opinions on the subject. This situation plainly

does not deserve this Court’s attention. See Sup. Ct. R. 10.

Moreover, the decision below is fully consistent with this

4

Court’s decisions concerning the relationship between the

federal common law and congressional enactments, and is a

proper reconciliation of FELA and FRSA. In sum, the Court

should deny the petition.

1. Petitioner’s first argument (Pet. 8-11) is that the

Secretary’s safety regulations cannot affect petitioner’s FELA

claim because the Secretary only has authority under FRSA

to “prescribe regulations and issue orders for every area of

railroad safety supplementing laws and regulations in effect

on October 16, 1970,” 49 U.S.C. § 20103. According to

petitioner, a railroad safety regulation does not supplement

FELA if it precludes liability in certain circumstances.

Petitioner’s reliance on this point is odd since it was not

even addressed below. Moreover, the argument is entirely

misplaced; the limitation on the Secretary’s authority in

section 20103 has nothing to do with FELA.” But even if it

? The House Report accompanying FRSA expressly stated that the

limitation in section 20103 was solely “to make clear that this grant of

jurisdiction d[id] not replace the existing rail safety statutes and

implementing regulations transferred to the Department of Transportation

when it was established.” H.R. Rep. No. 91-1194, at 16 (1970), reprinted

in 1970 U.S.C.C.A.N. 4104, 4113-14 (emphasis added). In other words,

Congress clarified that the Secretary did not have carte blanche to regulate

railroad safety without regard to the limitations and directives of existing

statutes, and their implementation in existing regulations, which had

worked well in the specific areas covered. /d. The railroad safety statutes

to which Congress referred in section 20103 were such provisions as the

“Safety Appliance Acts, Signal Inspection Act, Ash Pan Act, Locomotive

Inspection Act, Accident Reports Act, and the Hours of Service Act.” /d.

at 8, reprinted in 1970 U.S.C.C.A.N. at 4105. FELA was not a railroad

safety statute administered by the Secretary, and was thus not included in

Appendix B to the House Report, which set forth the “complete text of

existing railroad safety laws” addressed in section 20103. /d. at 16,

reprinted at 1970 U.S.C.C.A.N. at 4114; see id. at 40-65 (App. B),

reprinted in 1-4 House Miscellaneous Reports on Public Bills, IV (1970).

Thus, nothing in section 20103 limits the authority of the Secretary to

issue safety rules with regard to matters that may be the subject of a suit

under FELA.

i ia ai

5

were otherwise, the regulation does no more than supplement

FELA in any relevant sense.

Under FELA, liability was and is predicated on the

railroad’s “negligence.” 45 U.S.C. § 51. “As a general negli-

gence statute, FELA neither prohibits nor requires specific

conduct by a railroad.” Pet. App. 3a. Obviously, negligence

is not a self-defining concept. Instead, it requires a

determination, inter alia, of what is the railroad’s duty of

care. What the FRSA regulations do is no more than give

content to that duty. The decision below holds that, once the

Secretary has defined the railroad’s duty of care by

regulation, a jury may not impose a conflicting duty of care

upon the railroad. Thus, there is no real tension between the

regulations and FELA; they operate in complete harmony,

with the federal regulation supplementing FELA by defining

the duty of care. The decision reconciles FELA and FRSA by

eliminating the absurdity that a plaintiff may ask a jury to

find conduct to be negligent which the Secretary (and this

Court) have already found “is not culpable negligence.” Id. at

Sa.

Petitioner contends (Pet. 9-10) that this case presents issues

under City of Milwaukee v. Illinois, 451 U.S. 304 (1981), and

United States v. Texas, 507 U.S. 529 (1993), as to when

statutes displace pre-existing federal common law rules.

Even if that were true, it would not justify review by this

court. The question under City of Milwaukee is “whether the

scheme established by Congress addresses the problem

formerly governed by federal common law.” 451 U.S. at 315

n.10. As the district court held, FRSA and the regulations

issued thereunder “evince[] a congressional intent and

Statutory purpose . . . to supplant federal common law.on train

speed and warning devices.” Pet. App. 21a. There is no

displacement of FELA generally; rather the Secretary’s

regulations simply supply in specific circumstances a

definition of the duty of care that otherwise would be

determined retrospectively by a lay jury on the facts of a

6

particular case. Not only is the decision below clearly

correct, but at most this petition merely contests a specific

application of the settled rule of law of City of Milwaukee.

Such a claim of error is inherently unworthy of review by this

Court. See Sup. Ct. R. 10 (“A petition for a writ of certiorari

is rarely granted when the asserted error consists of . . . the

misapplication of a properly stated rule of law.”’).

2. Petitioner’s second argument (Pet. 11-13) concerning

the proper interpretation of FRSA’s preemption provision

similarly provides no basis for this Court to grant certiorari.

To be sure, the specific preemption provisions in FRSA are

by their terms limited to supplanting state law, and the court

of appeals did not suggest otherwise. Pet. App. 4a. It merely

found the statute, and this Court’s interpretation of it in

Easterwood, to be “instructive” in determining “the inter-

action of two federal statutes.” /d. at 4a.

FRSA states an affirmative command of uniformity of

railroad safety laws: “Laws, regulations, and orders related to

railroad safety shall be nationally uniform to the extent

practicable.” 49 U.S.C. § 20106. Although the specific

FRSA preemption provisions in furtherance of that policy do

not deal directly with federal common law, there is no reason

why a court should not take that declared national policy into

account in reconciling an asserted conflict between two

federal statutory schemes. A jury’s determination of a duty

of care under FELA that conflicts with a duty of care

established by federal regulation destroys the national

uniformity of railroad safety laws, no less than does a jury

determination under state tort law.’ Thus, imposing liability

under federal law for conduct that complies with safety

* Petitioner invokes Crane v. Cedar Rapids & lowa City Ry., 395 U.S.

164, 166 (1969), but Crane simply holds that in passing FELA, Congress

contemplated different treatment of railroad employees and state tort-law

plaintiffs. Decided before FRSA was even enacted, Crane has no bearing

on the vindication of FRSA’s policy of national uniformity in railroad

safety laws.

7

regulations directly interferes with FRSA’s overriding

objectives.‘

3. Petitioner is also correct (Pet. 16-18) that plaintiffs

bringing negligence claims under FELA do not confront the

same defenses to a cause of action that many or even most

plaintiffs face when they sue under state common law. But

that does not convert FELA into a no-fault workers

compensation statute. It remains necessary for petitioner to

prove negligence, which requires a breach of a duty of care.

FRSA’s regulations define the relevant duty—train speed

limits and appropriate grade crossing protections—and

petitioner conceded below (Pet. App. 22a, 23a) that the

railroad did not violate those requirements. Again, by

allowing FRSA to define the standard of care, the Seventh

Circuit in fact harmonized the two statutory schemes.”

* Petitioner’s reliance (Pet. 13-14) on Section 5 of FELA, 45 U.S.C.

§ 55, is plainly misplaced. That provision does not apply to the

Secretary’s regulation. It refers to actions by the railroad that “exempt

itself from any liability.” /d. (emphasis added). Such actions include an

exemption in the railroad’s “regulations,” a term often used in statutes of

FELA’s vintage to refer to a common carrier’s own rules. Cf, e.g., 47

U.S.C. § 201(b) (Communications Act of 1934) (requiring common

carrier to adopt just and reasonable “charges, practices, classifications,

and regulations”). Here, the Secretary provides the relevant standard

absolving the railroad of liability if the railroad complies with that safety

standard. Moreover, FRSA does not “exempt” the railroad from liability.

It merely establishes the relevant standard of care. Failure to comply with

that standard exposes the railroad to liability.

* Although the lower courts generally spoke accurately of petitioner’s

specific claims under FELA as being “superseded by FRSA and its

regulations,” (Pet. App. 7a; see also id. at Sa, 16a, 22a, 23a-24a),.they also

sometimes more loosely characterized their holdings in terms of FRSA’s

policy of uniformity “supersed{ing]” FELA itself (id. at 7a, 23a). Those

latter characterizations are not, however, necessary to the courts’ holdings.

It is more apt (as the court of appeals also did (id. at 3a)) to describe

FRSA’s more specific standards as providing the relevant basis for

determining liability under FELA. Nevertheless, even if the issue were

8

4. Finally, petitioner complains (Pet. 18-20) that the FRSA

standards really will not protect worker safety because the

purpose of the speed limit regulation is to protect against train

derailments and not to prevent collisions with other vehicles.

But this is precisely the same argument this Court rejected in

Easterwood, 507 U.S. at 675. Similarly, his argument that

the warning-device regulations were intended to establish “a

minimum kind of grade crossing protection,” (Pet. 19) and

not to relieve the railroad of the duty to establish the proper

level of protection for a particular crossing, was directly

rejected in Shanklin, 120 S. Ct. at 1475-76. Moreover,

neither of these arguments provides any reason for this

Court’s review on certiorari. At most they are issues the

Secretary should consider. See id. at 1477 (Breyer, J., con-

curring).

CONCLUSION

The Court should deny the petition for a writ of certiorari.

Respectfully submitted,

GEOFFREY L. BLAZ1 CARTER G. PHILLIPS *

STUART & BRANIGIN SIDLEY & AUSTIN

300 Main Street 1722 Eye Street, N.W.

Suite 800 Washington, D.C. 20006

Lafayette, IN 47902 (202) 736-8000

(765) 423-1561

Counsel for Respondent

December 15, 2000 * Counsel of Record

posed as whether FRSA superseded FELA, the holdings were clearly

correct that FRSA’s objectives should trump FELA’s, given Congress’

dominant purpose embodied in FRSA to ensure uniform safety standards.