Atchison, Topeka and Santa Fe Ry. Co. v. Pena

• Citation: 44 F.3d 437
• Decision Date: 29 December 1994
• Docket Number: Nos. 93-1505,93-2378,s. 93-1505
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Parties: , 2 Wage & Hour Cas.2d (BNA) 814 The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Burlington Northern Railroad Company, Consolidated Rail Corporation, CSX Transportation, Inc., Illinois Central Railroad Company, Norfolk Southern Railway Company, Norfolk & Western Railway Company, Southern Pacific Transportation Company, and Union Pacific Railroad Company, Petitioners, v. Federico PENA, Secretary of Transportation, et al., Respondents, and Brotherhood of Locomotive Engineers, and United Transportation Union, Intervening Respondents. , and 93-2712.

Page 437

44 F.3d 437

63 USLW 2425, 2 Wage & Hour Cas.2d (BNA) 814

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY Burlington Northern Railroad Company, Consolidated Rail Corporation, CSX Transportation, Inc., Illinois Central Railroad Company, Norfolk Southern Railway Company, Norfolk & Western Railway Company, Southern Pacific Transportation Company, and Union Pacific Railroad Company, Petitioners, v. Federico PENA, Secretary of Transportation, et al., Respondents and Brotherhood of Locomotive Engineers, and United Transportation Union, Intervening Respondents.

Nos. 93-1505, 93-2378, and 93-2712.

United States Court of Appeals Seventh Circuit.

Argued Feb. 22, 1994.

Decided July 13, 1994.

Argued En Banc Oct. 18, 1994.

Decided Dec. 29, 1994.

Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Fort Worth, TX, Ronald M. Johnson (argued), Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, Guy Vitello, Atchison, Topeka & Santa Fe Ry. Co., Schaumburg, IL, for Atchison, Topeka and Santa Fe Ry. Co.

Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Fort Worth, TX, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Burlington Northern R. Co., Southern Pacific Transp. Co.

Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, John B. Rossi, Jr., Andrew P. Cocoran, Consolidated Rail Corp., Philadelphia, PA, for Consolidated Rail Corp.

Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, James D. Tomola, CSX Transp., Inc., Jacksonville, FL, for CSX Transp., Inc.

Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, Ronald A. Lane, Illinois Cent. R. Co., Chicago, IL, for Illinois Cent. R. Co.

Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer &amp Feld, Washington, DC, William P. Stallsmith, Jr., Norfolk Southern Corp., Norfolk, VA, for Norfolk Southern Ry. Co., Norfolk & Western Ry. Co.

Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, Brenda J. Council, Union Pacific R. Co., Omaha, NE, for Union Pacific R. Co.

John F. Daly (argued), Malcolm L. Stewart, Dept. of Justice, Civil Div., Appellate Section, Rosalind A. Knapp, Dept. of Transp., Washington, DC, for Federico Pena.

John F. Daly, Malcolm L. Stewart, Dept. of Justice, Washington, DC, for S. Mark Lindsey.

S. Mark Lindsey, pro se.

John F. Daly, Malcolm L. Stewart, S. Mark Lindsey, David Herbert Kasminoff, Daniel C. Smith, Billie Ann Stultz, Federal R. Admin. Office of the Chief Counsel, Washington, DC, for Federal R. Admin.

John F. Daly, Malcolm L. Stewart, Rosalind A. Knapp, Dept. of Transp., Washington, DC, for National Transp. Safety Bd.

Lawrence M. Mann, Alper & Mann, Washington, DC, for Brotherhood of Locomotive Engineers, United Transp. Union.

Janet Reno, U.S. Atty. Gen., Washington, DC, John F. Daly (argued), Malcolm L. Stewart, Dept. of Justice, Civil Div., Appellate Section, Rosalind A. Knapp, Department of Transp., David Herbert Kasminoff, Daniel C. Smith, Billie Ann Stultz, Federal R.R. Admin., Office of the Chief Counsel, Lawrence M. Mann, Steven M. Weisbaum, Alper & Mann, Washington, DC, for National Transp. Safety Bd.

Before POSNER, Chief Judge, BAUER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges. ^*

BAUER, Circuit Judge.

Petitioners, nine of the nation's largest railroads accounting for ninety percent of the industry's train operations, petition for review of the Federal Railroad Administration's (FRA) re-interpretation of the Hours of Service Act of 1907, 45 U.S.C. Secs. 61-66. The railroads challenge the FRA's recent announcement that it was abandoning an established interpretation of the Act and would consider as time on duty that time spent waiting for transportation to a designated terminal by a train crew that has been relieved of all operating duties of the train to which it is assigned. We find that the FRA's decision is entitled to no deference, and we interpret the Act, and eighty-five years of industry practice, such that this waiting time does not constitute time on duty.

Some background is necessary to place this issue in proper context. The Hours of Service Act imposes a limit on the maximum hours of service that a train crew can continuously operate trains while on duty. From the date of its original enactment through the late 1960's, the Interstate Commerce Commission administered and enforced the Act. Then, the Federal Railroad Administration, a component of the Department of Transportation, was created to take over these duties from the ICC.

"The purpose of the statute is to promote safety in operating trains by preventing the excessive mental and physical strain which usually results from remaining too long at an exacting task." Chicago & A.R. Co. v. United States, 247 U.S. 197, 199, 38 S.Ct. 442, 443, 62 L.Ed. 1066 (1918). In its original form, the Act limited train crews to sixteen continuous hours operating trains. c. 2939, Sec. 2, 34 Stat. 1416 (codified as amended 45 U.S.C. Sec. 62(a)(1)). Congress amended the Act so that since 1971, the maximum shift consists of twelve hours. 45 U.S.C. Sec. 62(a)(1). The Act also imposes mandatory time off duty before an employee can resume his operating duties. An employee who has worked a continuous twelve-hour shift must receive ten consecutive hours off duty. Id. In addition, no employee can be called to operations duty unless he has received eight continuous hours of off-duty time in the preceding twenty-four hour interval. 45 U.S.C. Sec. 62(a)(2).

Because of the itinerant nature of railroad operations, the limitation on a train crew's hours of service presents special problems to railroads. Obviously, when a train crew reaches its twelve-hour maximum it must cease operating its assigned train. If the train has not yet reached its destination, the "expired" or "outlawed" crew must "park" the train and wait for transportation to its designated terminal. The transportation typically is in the form of a railroad-owned van or another train going to the crew's designated terminal. The designated terminal may be the crew's home terminal or the "away from home" terminal designated by the railroad. See 45 U.S.C. Sec. 61(b)(4). The railroad must then transport another crew to the parked train to operate the train until it reaches its destination. Transportation to or from a parked train is called "deadhead" transportation.

In its 1969 amendments to the Act, Congress addressed the categorization of the time spent by crews in deadhead transportation. Section 61(b)(3)(C) includes as time on duty that "[t]ime spent in deadhead transportation by an employee to a duty assignment: Provided, [t]hat time spent in deadhead transportation by an employee from duty to his point of final release shall not be counted in computing time off duty...." The time spent in deadhead transportation from the parked train to the crew's designated terminal became known as "limbo time:" time which does not count against the twelve-hour limitation upon on-duty time nor contributes to the off-duty time that necessarily must accrue before an employee may return to duty. Unfortunately, the Act does not specifically address how time spent by an outlawed crew waiting for deadhead transportation must be categorized. Since the enactment of the 1969 amendments to the Act, the FRA has treated this waiting time as though it was time spent in deadhead transportation to the crew's designated terminal; the waiting time, thus, has been treated as limbo time. In addition, it appears that the Act, at least in the practical terms of the way it had been enforced since 1907, had never been construed to require that this waiting time be considered time on duty.

Things changed in 1992. In that year, the Ninth Circuit Court of Appeals rejected the FRA's interpretation of the Act in United Trans. Union v. Skinner, 975 F.2d 1421 (9th Cir.1992). Oddly, the Ninth Circuit held that the time spent waiting for deadhead transportation to a crew's designated terminal is time on duty, "based on the language of the HSA and on its consistent interpretation by the courts throughout its 85-year history." Id. at 1422. In an unusual move in that case, while it vigorously defended its own interpretation of the Act, the FRA declared itself willing to adopt and enforce the Ninth Circuit's interpretation of the Act, whatever its decision.

As a result of the Ninth Circuit's decision, the FRA notified, by way of a letter dated October 28, 1992, from its Chief Counsel, the Association of American Railroads that while the FRA has traditionally regarded the waiting time as limbo time, it no longer would. The letter stated that the FRA did not agree with the Ninth Circuit's rationale, but would adopt it and enforce it nationwide. The FRA implemented its new enforcement scheme on November 1, 1992, in those states that comprise the Ninth Circuit, and on January 1, 1993, in the rest of the country. Within sixty days of the nationwide effective date, the railroads filed in this court a petition for review pursuant to 45 U.S.C. Sec. 431(f) and 28 U.S.C. Sec. 2342(7). In addition, the railroads filed with the FRA a Petition for Interpretation of the Hours of Service Act on March 26, 1993. ¹ On April 8, 1993, the FRA published its new interpretation of the Act in the Federal Register, much of which was taken verbatim from the FRA's letter to the railroads. From this agency action, the railroads filed another petition for review on June 7, 1993. Finally, in response to the FRA's July 1, 1993, denial of the railroads' Petition for...