United Transp. Union v. Lewis
| Decision Date | 11 March 1983 |
| Docket Number | No. 81-8020,81-8020 |
| Citation | 699 F.2d 1109 |
| Parties | 26 Wage & Hour Cas. (BN 35, 96 Lab.Cas. P 34,338 UNITED TRANSPORTATION UNION and O.L. Macks, Plaintiffs-Appellants, v. Drew LEWIS, Secretary of Transportation, and Robert W. Blanchette, Administrator, Federal Railroad Administration, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Alper, Schoene, Horkan, Lawrence M. Mann, Washington, D.C., for plaintiffs-appellants.
Edward J. Vulevich, Jr., Asst. U.S. Atty., Mobile, Ala., Billie Stultz, Federal R.R. Admin., Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Alabama.
Before GODBOLD, Chief Judge, FAY and SMITH *, Circuit Judges.
This case presents the question whether the emergency powers of the Secretary of Transportation, under the Federal Railroad Safety Act, 1 to abate unsafe conditions or practices involving a hazard of death or injury to persons are exercisable with respect to allegedly hazardous conditions in crew sleeping accommodations under the Hours of Service Act, 2 where the prescriptions of the Hours of Service Act with respect to crew sleeping accommodations are enforceable only by the U.S. attorney. 3 The District Court for the Southern District of Alabama, on the basis of the legislative history of section 432, found that the emergency powers of the Secretary of Transportation are limited to unsafe conditions or practices relative to actual railroad operations and do not apply to crew sleeping quarters. After considering the submissions of the parties and the legislative histories of the relevant statutes, and having heard oral argument, we affirm in part and reverse in part.
The Burlington Northern Railroad provides sleeping quarters to its train crews in Magnolia, Alabama, at the Magnolia Hotel. Section 62(a)(3) of the Hours of Service Act (Service Act) 4 prescribes certain minimum standards for sleeping quarters provided by a railroad to its employees. If a carrier undertakes to provide accommodations to its employees, as Burlington Northern has chosen to do at Magnolia, such accommodations must afford "an opportunity for rest, free from interruption caused by noise under the control of the railroad, in clean, safe, and sanitary quarters." 5 Appellants, United Transportation Union and Macks (collectively referred to as UTU), maintain that conditions at the Magnolia Hotel are deplorable, 6 presenting unnecessary risks of injury, disease, and safety in violation of section 62(a)(3).
Section 64a of the Service Act 7 stipulates that the sleeping quarters provision of section 62 can be enforced only by the U.S. attorney. Section 432 of the Federal Railroad Safety Act (Safety Act), 8 however, accords the Secretary of Transportation power to order the abatement of unsafe conditions or practices that create an emergency situation involving a hazard of death or injury to persons.
UTU brought the situation at the Magnolia Hotel to the attention of the Secretary of Transportation. The Secretary investigated UTU's charges 9 and refused either to lodge with the U.S. attorney information that a violation of section 62(a)(3) existed at the Magnolia Hotel or to exercise his emergency powers under section 432.
UTU then filed this action under sections 62(a)(3) and 432, seeking an injunction to compel the Secretary to issue an emergency order under section 432, a declaratory judgment that the Government defendants have violated a mandatory duty to require the carrier to comply with section 62(a)(3), a writ of mandamus, and attorney's fees and costs. The trial court dismissed the complaint on the grounds, first, that section 62(a)(3) can be enforced only by the U.S. attorney, and, second, that the Secretary's power to issue an emergency order under section 432 does not extend to the sleeping quarters provision of section 62(a)(3). UTU appeals only the dismissal of its section 432 claim.
As the trial judge correctly pointed out, UTU cannot enforce the provisions of section 62(a)(3) by this action. Section 64a provides that penalties for violations of section 62 can be recovered in an action brought by the U.S. attorney. 10 No mechanism for private enforcement of section 62 exists and, based on the clear language of section 64a, no private right of action could be implied.
The trial judge felt that, by bringing this action, UTU had sought to bypass this exclusive enforcement provision and the court, therefore, dismissed UTU's Service Act claim without prejudice. We fully agree with the district court that section 62(a)(3) can be enforced only by the U.S. attorney.
Section 64a does, however, provide a mechanism whereby private parties can request official action to redress a section 62(a)(3) violation. The district court directed UTU to lodge with the U.S. attorney satisfactory information that a violation has occurred, yet the statute indicates a different course of action.
UTU could have proceeded under section 64a directly against the Secretary. If a violation has occurred, the Secretary can be compelled to inform the U.S. attorney. If the Secretary finds no violation and refuses to lodge with the U.S. attorney complainant's information supporting an alleged violation, the Secretary's decision to withhold administrative action could be reviewed under the Administrative Procedure Act 11 (APA) as administrative action wrongfully withheld.
UTU chose not to pursue that course in this case. Despite that available remedy, UTU seeks in this proceeding to compel the Secretary to exercise his emergency powers. UTU did not appeal the dismissal of its section 62(a)(3) claim. At trial, UTU went so far as to state that section 62(a)(3) was referenced only for purposes of background and did not state a basis for positive relief. This action, therefore, is appealed only under section 432.
We affirm that portion of the district court's judgment disposing of the Service Act claim, and turn now to UTU's section 432 claim.
We find, in light of the legislative history of the 1980 amendments to the Safety Act, 12 practical interpretation of the broad phrase "conditions or practices," the need for flexibility in response to life threatening emergency situations, and the lack of conflict between the exercise of the Secretary's emergency powers and the U.S. attorney's enforcement of the Service Act, that the Secretary of Transportation's emergency powers under section 432 to abate unsafe conditions or practices extend to emergency situations involving a hazard of death or injury to persons with respect to sleeping quarters for employees.
While the legislative history does not explicitly resolve the issue, Congress does appear to have adopted in the 1980 amendments to section 432 broad language that would encompass emergency situations arising with respect to sleeping quarters. The pre-1980 wording of section 432 addressed facilities or pieces of equipment. In Louisville & N.R.R. v. Sullivan, 13 the United States District Court for the District of Columbia held that Congress did not intend to give the Secretary of Transportation emergency power under section 432 to impose speed limits on trains carrying hazardous materials and to inspect tracks. In response to that limitation, the 1980 amendments to section 432 significantly broadened the Secretary's emergency power to address unsafe conditions or practices.
Section 432 was originally enacted as section 203 of the Federal Railroad Safety and Hazardous Materials Transportation Control Act of 1970 (1970 act). The legislative history of the 1970 act reveals a congressional purpose to construct a comprehensive framework of rail safety legislation. The 1970 act declares as its purpose "to promote safety in all areas of railroad operations, to reduce railroad accidents, to reduce deaths and injuries to persons and to reduce property damage caused by accidents involving any carrier of hazardous materials." 14 (Emphasis supplied.)
The House report goes on to discuss the safety problems involved in rail accidents and identifies a number of areas, among others, in which the bill seeks to grant the Secretary authority to provide standards: rail quality, track and roadbed maintenance, emergency means of evacuation from cars, design and manufacture of train wheels, and industry standards. 15 Track, roadbed, equipment, and human failure are the key foci of the act because these areas were determined to be the major causative factors in rail accidents.
Specifically addressing the Secretary's emergency powers under section 432 (), the report goes on to state: 16
Section 203 authorizes the Secretary to order out of service any facility or piece of equipment determined by him to be in an unsafe condition and thereby creating an emergency situation involving a hazard of death or injury to persons affected by it. Such orders of the Secretary would not be subject to the rulemaking provisions of section 202(b) prior to issuance. Subsequently, however, opportunity for review must be provided in accordance with section 554 of title 5 of the United States Code. * * *
While the 1970 act does not specifically address sleeping accommodations, it does go on to grant the Secretary broad administrative powers under section 208, 45 U.S.C. Sec. 437 (1976). 17
In the legislative history of the 1976 amendments to the Safety Act, Congress urged the Secretary to exercise that administrative power with respect to sleeping quarters. The bill as proposed contained an earlier version of the current section 62(a)(3) sleeping quarters provisions. The committee, unable to consider the merits of, and report on, the provision because of time constraints, noted that several of the proposed amendments, the sleeping quarters amendment among them, 18
appear to be more appropriate for administrative rather than legislative action. However,...
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