Association of American Railroads v. Department of Transp.
| Decision Date | 28 October 1994 |
| Docket Number | No. 93-1208,93-1208 |
| Parties | , 63 USLW 2320, 16 O.S.H. Cas. (BNA) 2084, 1994 O.S.H.D. (CCH) P 30,559 ASSOCIATION OF AMERICAN RAILROADS; American Short Line Railroad Association, Petitioners, v. DEPARTMENT OF TRANSPORTATION; Federico F. Pena, Secretary of Transportation; S. Mark Lindsey, Acting Administrator, Federal Railroad Administration; Federal Railroad Administration, Respondents, Brotherhood of Maintenance of Way Employees, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Ronald M. Johnson argued the cause, for petitioners. With him on the briefs, were Mark V. Holden, Robert W. Blanchette, Michael J. Rush and Alice C. Saylor.
Marleigh D. Dover, Atty., U.S. Dept. of Justice, argued the cause, for respondents. With her on the brief, were Frank W. Hunger, Asst. Atty. Gen., and S. Mark Lindsey, Chief Counsel, Federal Railroad Admin.
Before WALD, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed PER CURIAM.
We conclude that petitioners have standing to challenge the Federal Railroad Administration's bridge worker safety rule, and deny the petition on the merits.
On June 24, 1992, the Federal Railroad Administration ("FRA") issued a final rule establishing safety standards for employees working on railroad bridges ("bridge worker safety rule"), 57 Fed.Reg. 28,116, codified at 49 C.F.R. pt. 214, pursuant to authority under the Federal Railroad Safety Act ("FRSA") to "issue rules, regulations, orders, and standards for the safety of maintenance-of-way employees, on railroad bridges," FRSA, 45 U.S.C. Sec. 431(n). The rule establishes standards for fall protection, scaffolding, and personal protective equipment. Section 214.101(d) of the rule, however, states that "[a]ny working conditions involving the protection of railroad employees working on railroad bridges not within the subject matter addressed by this Chapter ... shall be governed by the regulations of the ... Occupational Safety and Health Administration."
The Association of American Railroads and American Short Line Railroad Association ("AAR"), representing most of the nation's railroads, petition for review, contending that section 101(d) violates the FRSA as amended, which in their view vests exclusive jurisdiction in the FRA to regulate railroad bridge worker safety. In addition, AAR contends that the FRA violated the Administrative Procedure Act ("APA") because its notice of proposed rulemaking failed to give adequate notice that the final rule might permit partial regulation by the Occupational Safety and Health Administration ("OSHA"). Finally, the AAR contends the rule violates the APA because it reverses, without APA- required notice and comment, a 1978 FRA Policy Statement exercising exclusive authority over bridge worker safety.
The FRA replies that Sec. 214.101(d) does not delegate authority to OSHA, but instead is merely the FRA's interpretation of the Occupational Safety and Health Act ("OSH Act"). In the FRA's view, OSHA standards apply by default to any aspect of bridge worker safety not covered by the new FRA rule as an exercise of OSHA's residual jurisdiction to regulate workplace safety unless its jurisdiction is ousted by another agency's exercise of authority. The FRA also argues that the final rule, which simply adopts part of the FRA's proposed rule and otherwise leaves in place the status quo of OSHA regulation, is a "logical outgrowth" of the proposed rule. Finally, the FRA argues that the final rule is consistent with the FRA's 1978 Policy Statement, which contrary to the AAR's interpretation did not claim exclusive FRA jurisdiction over bridge worker safety, but instead addressed the narrower subject of "safe working surfaces" on railroad bridges.
As a threshold matter, the FRA contends the AAR lacks standing to challenge the rule because even without this rule, railroads would be subject to OSHA standards. Consequently, the AAR can show no injury caused by the agency's action. To have standing, petitioners must show an actual or threatened injury "fairly traceable to (i.e., caused by) the challenged regulation, and ... likely to be redressed by the remedy they seek." Competitive Enter. Inst. v. Department of Transp., 856 F.2d 1563, 1565 (D.C.Cir.1988).
Here, the AAR alleges sufficient injury-in-fact: it claims the necessity of complying with two sets of regulations enforced by two federal agencies compounds the railroads' compliance burden, regardless of the content of either set of regulations. The AAR also argues that the injury is caused by the FRA's adoption of a bridge worker safety rule that, in the AAR's view, violates the FRSA and reverses the FRA's prior exercise of exclusive jurisdiction over bridge worker safety. Finally, the AAR argues that its injury would be redressed by vacating subsection 101(d) which, in the AAR's view, reverses the FRA's prior exercise of exclusive jurisdiction.
We conclude that the AAR has standing because it alleges a sufficiently concrete injury-in-fact, and because it makes colorable legal arguments that the injury is caused by the FRA's adoption of the rule, and is redressable by the relief it seeks. Ultimately we disagree with the AAR's interpretations of both the FRSA and the 1978 Policy Statement. But if the AAR's interpretations of those provisions were correct--so that the FRSA mandates the FRA to exercise exclusive jurisdiction over bridge worker safety, and the FRA's 1978 Policy Statement ousts OSHA of jurisdiction--then it would follow that the bridge worker safety rule violates the FRSA, reverses the FRA's 1978 Policy Statement, and thereby causes previously-inapplicable OSHA regulations to come into play. The FRA's adoption of the rule would thus proximately cause the alleged injury; or, to put it another way, the alleged injury would be fairly traceable to the FRA's adoption of the rule.
Moreover, if the AAR is correct in interpreting the 1978 Policy Statement as an exercise of exclusive regulatory authority (and therefore an ouster of OSHA), the injury would also be redressable by the relief petitioners seek. 1 Vacating subsection 101(d) would then leave the 1978 Policy Statement in effect as the FRA's last official word on the subject, retaining the FRA's exercise of authority over all aspects of bridge worker safety, and thus denying OSHA jurisdiction over any aspect of bridge worker safety. Thus, if the AAR's reading of the Policy Statement were correct, and if section 101(d) were vacated, the railroads would not be subject to dual regulation, and the alleged injury would be avoided.
Because we find the AAR's interpretations of both the FRSA and the 1978 Policy Statement ultimately unpersuasive, we uphold the rule on the merits. But because the AAR makes at least a colorable argument, it is our view that this case is properly disposed of on the merits, rather than at the threshold stage of standing inquiry.
Standing doctrine aims to give concrete effect to the Article III "case or controversy" requirement, which reflects the principle that the work of Article III courts is properly confined to adjudicating live disputes between litigants in a form amenable to judicial proceedings. Here, there is undeniably a live, concrete "case or controversy"; the railroads allege that they are materially harmed by the additional regulatory burden imposed upon them as the result of a federal agency's unlawful adoption of a rule, and seek to have that rule overturned. We hold under the circumstances that the AAR has standing.
The AAR contends that the standard violates the FRSA, which in the AAR's view vests exclusive authority in the FRA to regulate railroad bridge worker safety. The FRA replies that the FRSA does not vest exclusive jurisdiction in the FRA to regulate all aspects of bridge worker safety, and consequently, under Sec. 4(b)(1) of the OSH Act, OSHA retains residual authority to regulate. Section 4(b)(1) states:
Nothing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
29 U.S.C. Sec. 653(b)(1).
We have previously held that under Sec. 4(b)(1), an "exercise of statutory authority to prescribe or enforce standards" means more than merely holding authority to prescribe standards, or merely initiating rulemaking pursuant to that authority. "Congress did not contemplate that there would be no regulation whatever while the FRA is still considering what road to take, nor does a single step down that road carry preemption further than that step itself." Baltimore & O.R. Co. v. OSHRC, 548 F.2d 1052, 1055 (D.C.Cir.1976) (per curiam). See also Donovan v. Red Star Marine Serv., Inc., 739 F.2d 774, 778 (2d Cir.1984) (), cert. denied, 470 U.S. 1003, 105 S.Ct. 1355, 84 L.Ed.2d 377 (1985); Southern Pac. Transp. Co. v. Usery, 539 F.2d 386, 389 (5th Cir.1976) (), cert. denied, 434 U.S. 874, 98 S.Ct. 221, 54 L.Ed.2d 154 (1977).
The AAR nonetheless contends that 1988 and 1992 amendments to the FRSA vest exclusive jurisdiction in the FRA to regulate railroad bridge worker...
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