United Transportation Union v. Dole

BARRETT, Circuit Judge.

This appeal is brought by the United Transportation Union, the Brotherhood of Locomotive Engineers, and several individually named appellants (collectively referred to as UTU). In the trial court, UTU requested the following relief: an emergency order to abate, a writ of mandamus, preliminary and permanent injunctions, and a declaratory judgment for violations of the Hours of Service Act, 45 U.S.C. § 61 et seq., allegedly committed by the Federal Railroad Administration (FRA). After a two-day trial, all relief requested by UTU was denied.

Appellees (FRA and the Secretary of the Department of Transportation) are charged with enforcing the railroad safety laws by the Hours of Service Act. 45 U.S.C. § 64b and 49 C.F.R. § 1.49(d) (1985). UTU alleges that the FRA did not fulfill its mandatory enforcement obligations against the St. Louis Southwestern Railway Company (SSW, an appellee here and intervenor below). Specifically, UTU complains that the FRA did not issue orders prohibiting SSW from housing employees in a dormitory located in the Armourdale yard, in Kansas City, Kansas.

The Hours of Service Act prohibits housing crews in a dorm if the building is in the immediate vicinity of railroad tracks where hazardous materials are switched. If a building was in existence before July 8, 1976, it is exempt from the location requirement unless construction or reconstruction are performed on the building. “Construction” includes acquisition and use of an existing building. UTU claims, inter alia, that SSW planned to carry out construction on the building and FRA did not enforce the Act’s restriction.

The Armourdale dormitory was constructed by the Chicago, Rock Island and Pacific Railroad Company in 1966. Some of that company’s trackage, the Armour-dale dormitory, and surrounding rail yard was purchased by SSW in March, 1980. Those facts were stipulated to in the pretrial order. (R. Vol. I, p. 131). The building is within 300 feet of tracks where hazardous materials are switched. Located 13 feet from the dorm are storage tracks where vermin and rats congregate.

In May, 1980, SSW determined that unfavorable economic conditions mandated cessation of use of the dormitory as a sleeping facility. However, the building was maintained as a locker facility from 1980 through 1983. In July, 1983, after economic conditions had improved, the company announced its plans to refurbish the dormitory and resume use of the building as a sleeping facility. Three days after construction work on these improvements had begun, UTU filed an action and work was enjoined.

Soon after the remodeling plans were announced, a representative of the Brotherhood of Locomotive Engineers lodged a complaint with the FRA alleging that the dormitory was unsafe, unclean, and unsanitary in violation of 45 U.S.C. §§ 62(a)(3) and (4). The FRA investigated and found several potential problems but these difficulties were worked out through mutual agreement between the FRA and SSW. The FRA concluded that no present or imminent threat of Act violations existed.

With the Hours of Service Act, Congress intended to improve the safety of sleeping accommodations that railroads provided for crews. Impetus for strengthening 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 maintain sleeping facilities for crews no closer than one-half mile to any area where switching or humping¹ operations were performed. 45 U.S.C. § 62(a)(4) and 49 C.F.R. § 228.101(b) (1985).

Congress was aware that many of the lodging facilities already in existence when the legislation became effective in 1976 were within the half-mile zone of exclusion. At congressional subcommittee hearings representatives of the railroads vehemently voiced their opposition to the proposed immediate discontinuation of use of these buildings, citing large investments “down the drain.” They felt that it was an area more appropriate for collective bargaining and had no provable safety benefit. Federal Railroad Safety Authorization Act of 1976: Hearings on H.R. 11804 and H.R. 11837 before the Subeomm. on Transportation and Commerce of the House Comm, on Interstate and Foreign Commerce, 94th Cong., 2nd Sess. 106 122-23, 190 (1976) (statements of Harold Hall, Vice President, Transportation, Southern Railway Company, Thomas Phemister, Association of American Railroads, and John German, Vice President, Engineering, Mo-Pac Railroad Company, Texas-Pac Railway Co., Chicago-E. 111. Railroad Co., Mo-Ill Railroad Co., and all subsidiaries).

Congress added a “grandfather” clause to the Act, allowing buildings which had been used as sleeping quarters prior to July 8,1976, which were within the immediate vicinity of switching or humping operations to be exempt from the “half-mile rule” as long as no construction or reconstruction were performed on these facilities. 45 U.S.C. § 62(a)(4).

The grandfather clause presumably was inserted to prevent large scale inequity to those railroads which made sizeable financial outlays to erect their lodgings before the legislation was enacted. The grandfather clause protected the investments of those railroads which built the accommodations. However, it did not protect those, like SSW, that, after July, 1976, purchased facilities built by another railroad.

The amendment to the Hours of Service Act which we are concerned with here became effective in July, 1976. The amendment provides that “it shall be unlawful for any common carrier, its officers or agents, subject to this chapter, to begin construction or reconstruction of any sleeping quarters ... 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 operations are performed.” 45 U.S.C. § 62(a)(4). The regulations defining construction and reconstruction were promulgated July 19, 1978, after an ample comment period. SSW is subject to the regulations because the transaction involving the dorm did not occur until March, 1980.

The implementing regulations and the statute are intended to be coextensive. After an extended public comment period, the administrator of the FRA issued final rules which provided:

(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; or

(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) 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. [This rule is far more restrictive than it may appear for the cost of all improvements are to be aggregated.]

49 C.F.R. § 228.101(c) (1985) (emphasis added).

FRA’s interpretation of its own regulation is challenged by UTU. FRA contends that the regulation which provides that “construction refers to acquisition and use of an existing building” means that buildings which were sold from one railroad to another, as is the case here, were not intended to be covered by the regulation. The trial court granted FRA’s motion for summary judgment on this ground, finding that, “They (the rulemakers) were not concerned with grandfathered facilities changing ownership from one railroad to another.” (R., Vol. II, p. 198). The trial court did not discuss why the language of the regulation, which is plain on its face, was not dispositive. The trial court found in its conclusions of law that, “SSW’s plan for rehabilitation of the dormitory facility does not meet the definition of construction or reconstruction as defined by 49 C.F.R. § 228.101(c)(1) [or] (2).” (R., Vol. Ill, p. 387, n. 5). No explanation of why the definition of construction was not met was included in the conclusions of law.

UTU raises several issues on appeal. However, because we believe one to be dispositive we will address only that issue. The issue can be simply phrased: “Was the trial court’s conclusion that SSW’s proposed rehabilitation was not construction within the meaning of 49 C.F.R. § 228.-101(c)(l)(iv) erroneous?”

I.

Before reaching the merits of the issue, we must determine if UTU has abandoned or waived the issue because of the manner in which it was developed in the briefs. UTU first discussed the issue in its motion in opposition to summary judgment. These same arguments were incorporated into UTU’s trial brief. UTU listed the issue in its appellate docketing statement and a formulation of the question appeared in UTU’s statement of the issues in its appellate brief. In the body of UTU’s brief, though, all argument concerning this matter is of a most general nature and cursory. FRA, however, does address the issue in its answer brief. The point was not developed by either party at oral argument.

Fed.R.App.P. 28(a)(2) and (4) requires that an appellate brief contain a statement of the issues presented for review and “The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.” The rule is twofold in that the issue must be listed and must be discussed. This court, however, has considered an issue even though it was in a docketing statement but not discussed in the brief because the court believed that it was important enough to merit consideration. Platis v. United States, 409 F.2d 1009, 1012 (10th Cir.1969); compare, Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir.1984) (where the issue was listed in the docketing statement but was not argued in the brief and was deemed waived.) Here UTU went further than the party in Platis for it preserved the issue for appeal by raising it in the trial court, listing the issue in the docketing statement and in its statement of the issues, and by superficial arguments in its briefs.

In this case, the issue is important. It deals with a question of first impression concerning statutory interpretation. The nature of the adversarial system is such that although the court is not precluded from conducting an independent evaluation of the issues, the parties are obligated to persuade the court of the accuracy of their respective positions. Here we have the benefit of FRA’s arguments which appear in a summary, though organized, manner in its appellate brief. We also have UTU’s sketchy arguments which do not illustrate their contentions as well as they should. However, the issue was thoroughly discussed in the summary judgment motions of each party in the trial court, and these motions are part of the appellate record. The question of waiver is a close one. Even though UTU should have developed the issue in a more thorough and in-depth fashion in its appellate brief, we hold that UTU did not abandon the issue for our review.

The reasons for barring our consideration of the matter are not compelling. The issue concerns questions of statutory interpretation urged by the agency and accepted by the district court. Questions of law are entitled to a de novo review; development of a record before the agency or by the agency is not pressing. See Railroad Yardmasters of America v. Harris, 721 F.2d, 1332, 1338-39 (D.C.Cir.1983). In any event, the issue was thoroughly argued in the trial court. Thus, we have the benefit of each party’s position there. We believe that it is necessary to correct misconceptions of statutory meaning at the earliest opportunity for the benefit of all who must operate under a statute’s purview.

II.

The regulation in question, 49 C.F.R. § 228.101(c), provides that construction refers to acquisition and use of an existing building and that construction on such a building is prohibited. FRA maintains that this regulation does not include existing buildings which are the subject of railroad to railroad transfers. UTU, however, urges that all acquisitions are subject to the prohibition on construction. The interpretation of the regulation that FRA now urges is in substantial variance with the construction the agency offered when the regulation was originally promulgated.

Initially, the FRA recognized that acquisitions from any source were subject to the regulation. “In addition, the acquisition of an existing structure for use as sleeping quarters is listed as an event clearly within the purview of the statute and these regulations.” (43 Fed.Reg. 31008 (July 19, 1978).) FRA advocated a very broad interpretation of the regulation in its contemporaneous construction:

Concern was expressed by one commenter whether these rules would apply only to sleeping quarters constructed or reconstructed by a railroad or its agent and owned by the railroad, and not to sleeping quarters owned by others and rented by the railroad. Again, FRA does not believe that the legal or equitable ownership or newly constructed sleeping quarters is relevant to railroad employee safety. The act makes it unlawful for a carrier “to begin construction or reconstruction” of sleeping quarters which are to be provided for covered employees. It makes no difference that the carrier may act through as intermediary or that the quarters may be constructed on the property of others, so long as the carrier is acting to provide sleeping quarters. These rules are coextensive with the statute with respect to their coverage.

Id. FRA also commented that it recognized that Congress’ approach was to have stricter standards apply to new or reconstructed facilities. (41 Fed.Reg. 53028 (Dec. 3, 1976) — announcement of interim rules.)

The trial court indicated that FRA intended that the regulation apply only to a railroad’s acquisition of hotels or places of accommodation. (R., Vol. II, p. 198.) FRA’s administrative history of the regulation, however, does not support this.

However, the regulation of places of public accommodation such as commercial hotels and motels is beyond the scope of FRA authority under the Hours of Service Act. It is clear from the language of the act read in light of the legislative history that quarters provided in places of public accommodation under an ordinary arms-length transaction are not governed by section 2(a)(3) and (4). See H.R.Rep. No. 1166, 94th Cong., 2d Sess. 11 (1976). Of course, if a railroad acquired ownership or control of a commercial hotel or motel for the purpose of housing employees, the fact that the facility or some portion thereof was open to the public would not avoid the applicability of the Hours of Service Act and the prohibition of section 2(a)(4). In such a case, the emloyer-employee [sic] relationship would clearly be more relevant than the innkeeper-guest relationship when viewed in the light of the statute.

(43 Fed.Reg. 31008 (1978).)

An agency’s construction of its own regulation is entitled to substantial deference. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555-56, 100 S.Ct. 790, 792, 63 L.Ed.2d 22 (1980). This deference is especially appropriate if agency expertise or technical knowledge is involved, id. or if the agency’s construction is contemporaneous with the regulation’s promulgation. Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1415 (10th Cir.1984).

“When the issue before us is a question of law, the standard of review on appeal is the same as that which would be applied by the trial court in making its initial ruling.” Boise City Farmers Cooperative v. Palmer, 780 F.2d 860, 866 (10th Cir.1985). In reviewing questions of law, we must be mindful of the great deference due an agency’s interpretation of its own regulations; however, blind adherence cannot result.

Interpretation of this particular regulation requires no specialized knowledge within the realm of the Federal Railroad Administration. The presumption of correctness given an agency’s construction of its own regulation is not applicable in this case. The regulation took effect in July, 1978, and FRA’s present arguments were put forth for the first time in its brief in this case. The record is devoid of any evidence indicating that the FRA has ever interpreted this regulation in the manner that it has in this case. Interpretations published by the FRA at the time the regulation was promulgated are entitled to greater weight than the interpretations the agency now espouses. Emery, supra. The interpretation now urged by the agency is inconsistent with the version set forth when the regulation was promulgated. Although an agency is not required to adhere to an outmoded policy, if a change is made it must be substantiated. If this is a departure from past agency policy due to changed considerations none of the deliberations that the agency relied upon are included or referred to. Thus, we do not view this as a policy change. Rather, it is more properly styled as an argument advanced for this case.

More importantly, the agency’s present interpretation of the regulation must fail because it conflicts with the statute it purports to implement. Emery, supra, at 1416. “[T]he courts are the final authorities on issues of statutory construction [and] are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” SEC v. Sloan, 436 U.S. 103, 118, 98 S.Ct. 1702, 1712, 56 L.Ed.2d 148 (1977) (citations omitted).

The statute prohibits construction of any sleeping quarters (defined by FRA to include acquisition and use of an existing building) by any carrier after 1976. Congress did not provide a specific exemption for railroad to railroad acquisition. It selected the word “any”. We will ascribe to that word its plain meaning. This is especially fitting in light of the legislative history of the Act and its broad administrative interpretation as previously supplied by FRA. We will not presume restrictions where Congress provided otherwise. Use of “any” would otherwise be nugatory.

The administrative interpretations advanced at the time the rule was promulgated also lend credence to the all-inclusive interpretation of the regulation even though the language of the regulation and the statute are so clear on their faces that consulting administrative history should not have been necessary.

The agency’s interpretation is inconsistent with congressional intent, the plain language of the regulation, and its own prior administrative interpretations. The court is not forced to ignore the manifest weight of evidence supporting a contrary construction for the agency’s preferred interpretation “is only one input in the interpretational equation.” Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327-28, 24 L.Ed.2d 345 (1969), cert. denied, Allen v. Hardin, 396 U.S. 1013, 90 S.Ct. 543, 24 L.Ed.2d 504 (1970) .

We hold, therefore, that SSW’s proposed reopening of the sleeping facility amounts to “construction” under 49 C.F.R. § 228.101(c)(l)(iv) because it is to be performed on a building that is located within the one-half mile zone, which was acquired after July 19, 1978 (the effective date of the regulation) and which was in existence before July 8, 1976 (the date the statute became effective). Consequently, SSW must comply with the regulatory scheme. The scheme provides exceptions to the general ban on “construction” in several limited situations. If SSW wishes to proceed with its construction plans it must first petition the FRA, supplying the information required by the regulations set out below, and attempt to bring itself within one of the exceptions.

Accordingly, Rule 1 establishes that all sites within one-half mile (2,640 feet) (804 meters) will be presumed to be in the “immediate vicinity”, except as determined otherwise through a site-by-site review. Rule 2 prescribes an approval procedure for construction within the range of one-third to one-half mile (1,760 to 2,640 feet) (536 to 804 meters) from any area where switching or humping operations are performed. Rule 3 prescribes very rigorous criteria and procedures for approval of sites within one-third mile (1,760 feet) (536 meters). ******

For any proposed project sites within one-half mile of switching or humping operations but outside of one-third mile of such operations, FRA will review the sites to determine the relative safety of and noise levels in crew quarters located at the proposed sites based on the topography of the general area of the site and the rail facilities near the site, the location of other physical improvements situated between the site and areas of rail operations, the distance from trackage where specific types of switching or humping operations are performed, and the type of rail operations within the area including the volume of placarded cars transporting hazardous material. If these factors or other information available to FRA indicates that a proposed site would be safe and would be free from railroad-caused noise, the site will be approved.

******

It has come to the attention of FRA that, in extraordinary situations, it may not be feasible to construct carrier-provided sleeping quarters at or beyond one-third of a mile. Therefore, FRA will consider the approval of locations within that range where the carrier makes an affirmative showing of its inability to obtain an alternate site suitable for the purpose and demonstrates that the location and type of construction are so unique as to justify approval on the grounds of safety and freedom from railroad-caused noise. The cost to the railroad of providing an alternate site will not be considered in evaluating whether a “feasible” alternate site is, in fact, available.

* * * * * *

Under Rule 3, the carrier would have to establish that an alternate site cannot be obtained and that the physical characteristics of the location and the proposed method of construction provide extraordinary protection against noise and hazardous materials incidents. Distances would be measured from the nearest rail of trackage utilized for switching or humping to the portion of the site on which would be located the exterior wall of the quarters which is the closest to the areas in which switching or humping are performed.

41 Fed.Reg. 53029 (1976) (codified at 49 C.F.R. §§ 228.103 and 228.105 (1985)).

We must reverse the order of the district court and direct that the matter be remanded to the agency for further proceedings consistent with this opinion.

REVERSED with directions to REMAND.

1 . “Humping” is a term of art denoting a method by which railroad cars are switched. (43 Fed. Reg. 31009 (July 19, 1978).)