Fort Worth and Denver Ry. Co. v. Lewis

• Decision Date: 06 December 1982
• Docket Number: No. 81-1405,81-1405
• Citation: 693 F.2d 432
• Parties: FORT WORTH AND DENVER RAILWAY COMPANY, et al., Plaintiffs-Appellants, v. Andrew L. LEWIS, Jr., etc., et al., Defendants-Appellees, Railway Labor Executives Association, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 432

693 F.2d 432

FORT WORTH AND DENVER RAILWAY COMPANY, et al., Plaintiffs-Appellants, v. Andrew L. LEWIS, Jr., etc., et al., Defendants-Appellees Railway Labor Executives Association, Intervenor-Appellee.

No. 81-1405.

United States Court of Appeals Fifth Circuit.

Dec. 6, 1982.

Arnold & Porter, Dennis G. Lyons, Charles H. Cochran, Washington, D.C., for plaintiffs-appellants.

Richard B. Vance, Asst. U.S. Atty., Fort Worth, Tex., Mark C. Rutzick, Dept. of Justice, Washington, D.C., for defendants-appellees.

Lawrence M. Mann, Washington, D.C., for intervenor-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE and JOHNSON, Circuit Judges, and VAN PELT,^* District Judge.

GEE, Circuit Judge:

In the fall of 1970, Congress enacted the Railway Safety Act, a comprehensive regulatory scheme granting broad rule-making authority in the interest of safety to the Secretary of Transportation. ¹ Among the Act's provisions is that codified as 45 U.S.C. Sec. 438(a), reading in pertinent part:

It shall be unlawful for any railroad to disobey, disregard, or fail to adhere to any rule ... prescribed by the Secretary under this subchapter. ²

The essential issue on this appeal is whether the Secretary is authorized by the above language to do as he has recently done: promulgate regulations dispensing with all considerations of knowledge or care (scienter) on the part of the railroads and imposing civil penalties on the basis of strict liability. The parties are agreed that the terms "disregard" and "disobey," used in the statute, incorporate elements of volition and hence of knowledge, so that if the statute contained only these terms, regulations imposing a strict liability standard would be unauthorized. ³ The battle rages over the meaning of "fail to adhere." The court below, in a painstaking and carefully considered opinion, concluded, as stated in its own summary of its holdings, that

Although there is neither an expressed statement nor any absolutely clear indication from Congress that it intended to authorize a standard of strict liability, the Court does find the following:

1. The plain meaning of the phrase "fail to adhere," although ambiguous as used in the context of Sec. 209(a), would support an interpretation that a scienter element is not required for violations of regulations adopted by the FRA [Federal Railroad Administrator, the Secretary's delegate].

2. Since the official committee reports are silent as to the standard of liability, it is likely that Congress intended to continue the long-standing policy of a standard of strict liability for violations of railroad safety legislation.

3. The FRA did adopt, prior to the 1979 revised regulations, emergency orders and regulations that did not require a scienter element; therefore the FRA has interpreted Sec. 209(a) as authorizing a standard of liability that does not require a scienter element. Moreover, the FRA, by adopting the revised regulations, interprets Sec. 209(a) as authorizing strict liability regulations, and the Court gives great deference to that interpretation.

Therefore, based upon these factors and the foregoing review of the indicia of Congressional intent, the Court finds that Sec. 209(a) of the FRSA does authorize the FRA to adopt regulations which impose a standard of strict liability.

Fort Worth & Denver Ry. Co. v. Goldschmidt, 518 F.Supp. 121, 134 (N.D.Tex.1981). The district court follows this analysis by noting that, in its view, the statute authorizes the adoption of regulations "that impose a standard of strict liability or a lesser standard of liability."

The question presented is one of pure law that we address free of the trammels of the "clearly erroneous" rule. It is, moreover, an extremely doubtful one in light of the ambiguous statutory language: Congress, having jettisoned the original language of the bill which became Section 438, language that clearly authorized a strict liability standard, ⁴ instead saw fit to adopt other language that possesses no accepted legal meaning. ⁵ Instead of adopting tested language for its standard, Congress settled on the term "adhere," a verb to which six discrete meanings are assigned by Webster's Unabridged, thus endorsing the struggle between rail employers and unions to us, without recourse. One aspect of the Congressional motive in doing so seems all too plain; it is, however, irrelevant to our task. What standard of liability the Congress meant to authorize by use of the formulation "fail to adhere" is the relevant question, a study in obscurity. The issue is close, but on balance we conclude that the scale tips against a strict liability standard. We therefore reverse.

The legislative history being doubtful, we follow the counsel of Justice Frankfurter, and go to the statute. ⁶ We reiterate its language for the reader's convenience:

It shall be unlawful for any railroad to disobey, disregard or fail to adhere to any rule, regulation, order, or standard prescribed by the Secretary under this subchapter.

Several things are at once apparent from its structure. One, unremarked by the parties or the court below, is that the form adopted is such as to itself lay down the standard for determining whether a regulation prescribed by the Secretary has been breached, as opposed to one authorizing the Secretary to promulgate his own standard (or standards) of judgment. Another, likewise unremarked, is that in terms the standard stated--"disregard, disobey, or fail to adhere to"--applies to "any rule ... prescribed by the Secretary under this subchapter." ⁷ This language and structure seem to suggest, then, that in enacting Section 438 the Congress believed that it was itself laying down a standard of liability that applied to "any" (and, therefore, in context to every ) rule or regulation that the Secretary might promulgate under the Railroad Safety Act. We therefore disagree with the district court's conclusion that the section delegates to the Secretary power to pick and choose among standards of liability, applying one to one regulation and a different one to another; whatever standard (or standards) of liability Congress meant to specify applies to every rule or regulation prescribed under the Act. ⁸

But if Congress intended a unitary standard, of universal application, why did it excise S. 1933's original and clear specification of absolute liability and present us with the Cerberus that we now contemplate? Several speculations are possible. One, advanced by the proponents of strict liability, is that a succession of standards, each more severe than the previous, was stated. Nor is this suggestion implausible: "disobey" denotes a knowing and intentional refusal to comply; "disregard" denotes the same, but connotes a neglect or failure to attend to; and "fail to adhere to" can mean, among other things, simply a failure to comply with or conform to--though its primary meaning is volitional: to fail "to hold, follow, or maintain loyalty steadily and consistently (as to a person, group, principle or way)." ⁹ Thus, the argument runs, Congress decreed liability for one who violates a prescribed regulation in any of three ways: by deliberate disobedience, by negligence, or by simple failure to conform. Such a construction possesses a pleasing symmetry and brings order to the verbal shambles in which we struggle. Unfortunately, however, it has little else to recommend it, while several considerations militate against it.

In the first place, if our threshold observation is correct and these three standards apply to every regulation promulgated under the Act, then on this construction the first two are mere surplusage: if one is to be rendered liable by a mere failure to comply, then notions of disobedience or neglect are, in context, beside the point. All three applying to every promulgation, none signifies except the most severe: strict liability, which comprises the other two and more besides. Second, if Congress intended such a result, why did it reject the original word-of-art language of S. 1933, which clearly specified that result and none other? Next, such a Chinese-box construction, a somewhat curious one, finds no more warrant in the legislative history than does any other; had such an unusual meaning been intended, one would expect a hint of it to have been dropped at some point. And finally, if strict liability is to be the universal rule, why did not Congress repeal the existing statutes specifying it in particular instances, committing a clear field to the Secretary's discretionary regulation? ¹⁰

Of the other construction, that pressed upon us by the railroads, we can say no more than that it is the only reasonably probable alternative to that we have just treated and seems slightly less unlikely. This is that the terms of the congressional triad--disobey, disregard, fail to adhere to--are simply a partially redundant statement of the same concept: knew or should have known, that of willfulness or negligence. Supporting our adoption of this construction are most of those factors that we have suggested above as militating against the other, though not that of avoiding ascribing surplusage to the legislator or (so strongly) that of failure to utilize readily available terms of art. ¹¹ And to them we are able to add a few others.

First, even the proponents of strict liability concede, as they must, that the primary dictionary meaning of all three terms of the triad incorporates the element of volition. It is only the secondary meaning of "adhere" ¹² that can be read as nonvolitional: "To be consistent or in accord." The primary meaning is "to ... follow or maintain loyalty steadily and consistently"--in other words, purposefully and consistently to obey and, conversely, never to disobey. The most accessible meaning of the term "adhere," therefore, incorporates an element of volition consistent with the scienter...