Atchison, Topeka & Santa Fe Railway Co. v. Pena

29 F.3d 324

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 13, 1994
• Docket: Nos. 93-1505, 93-2378, and 93-2712
• Status: Published

Opinions

GILBERT, Chief District Judge.

The petitioners bring this petition for review of orders of the Federal Railroad Administration (the “FRA”) changing its interpretation of the Hours of Service Act, 45 U.S.C. §§ 61-64 (the “HSA” or the “Act”), to provide that time spent waiting by a train crew, which has been relieved from all train operating duties, for transportation back to its point of release is now “on duty” time to be counted toward the maximum 12 consecutive hours on duty allowed by the HSA. For the reasons given below, we grant the petition and affirm the agency’s decision.

As a preliminary matter, we must determine whether we have jurisdiction over this matter. Pursuant to 28 U.S.C. § 2342(7) the court of appeals (other than the U.S. Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of, among others, all final agency actions described in section 202(f) of the Federal Railroad Safety Act of 1970 [45 U.S.C. § 431(f) ]. The Federal Railroad Safety Act provides that “The Secretary of Transportation ... shall (1) prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safe-ty_” 45 U.S.C. § 431(a). The Secretary of Transportation is charged with administration of the Hours of Service Act. 49 U.S.C.App. § 1655(e)(2). The Secretary has delegated this function to the FRA, a federal agency within the Department of Transportation. The Federal Railroad Safety Act also provides:

Any final agency action taken by the Secretary under this subchapter or under any of the other Federal railroad safety laws, ... is subject to judicial review as provided in chapter 7 of Title 5. Except as provided in section 432(e) of this title, any proceeding to review such final agency action shall be brought in the appropriate court of appeals as provided by and in the manner prescribed in chapter 158 of Title 28.

45 U.S.C. § 431(f). Accordingly, we find that we do have jurisdiction to consider this petition.

I. Background

The HSA regulates the maximum hours of service that a train crew can be continuously on duty. The Act currently allows railroads to operate crews up to a maximum of 12 consecutive hours. The HSA also imposes mandatory rest periods before employees involved in train operation can be recalled to work. An employee who has been continuously on duty for the maximum 12 hours cannot go on duty again until he or she has had at least 10 consecutive hours off duty. In addition, an employee cannot return to duty unless he or she has had at least 8 consecutive hours off duty during the preceding 24 hours.

When a train crew cannot reach its destination within the maximum 12 hour period, the railroad must order the crew to “park” the train and await transportation back to the crew’s designated terminal release point. When the crew reaches this maximum 12 hour limit it is said to be an “expired” or “outlawed” crew. The time spent in “deadhead” transportation to its designated release point is “limbo” time, because it is not on-duty time for purposes of the 12 hour maximum, nor is it off-duty for purposes of the mandatory rest periods. This limbo time is specifically excluded from time off duty in the statutory language, just as deadhead transportation to the crew’s beginning point is on duty time. The question is, what about time spent waiting for the deadhead transportation back to the point of release?

The FRA had previously interpreted the 1969 amendment to the HSA, which cut the maximum hours from 16 to 12 and added the language about deadhead transportation, to mean that time spent by an “outlawed” or “expired” crew waiting for deadhead transportation to its designated release terminal was not considered on-duty time. The FRA treated this waiting time as part of the transportation and therefore limbo time.

The Ninth Circuit Court of Appeals rejected the FRA’s interpretation in United Transportation Union v. Skinner, 975 F.2d 1421 (9th Cir.1992). The Ninth Circuit held that such time spent waiting for deadhead transportation must be counted as time on duty for purposes of the 12 hour maximum. The Ninth Circuit said, “based on the language of the HSA and on its consistent interpretation by the courts throughout its 85-year history, we conclude that such waiting time is and always has been time on duty for purposes of the statute.” Id. at 1422.¹ The FRA then decided to adopt this interpretation of the HSA nationwide, even though the FRA had opposed the interpretation in the Ninth Circuit. It is this decision of the FRA that the petitioners challenge.

II. Analysis

A. Standard

When we review an agency interpretation we must follow the two-step analysis mandated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984): (1) first, the court must consider whether Congress has spoken directly to the identical question at issue, for the court, as well as the agency must give effect to the unambiguously expressed intent of Congress; (2) if the statute is silent or ambiguous with respect to the specific issue the court must consider whether the agency’s interpretation is a reasonable one.

B. Discussion

The HSA defines time “on duty” as follows:

Time on duty shall commence when an employee reports for duty and terminate when the employee is finally released from duty, and shall include:

(A) Interim periods available for rest at other than a designated terminal;

(B) Interim periods available for less than four hours rest at a designated terminal;

(C) Time spent in deadhead transportation by an employee to a duty assignment: Provided, that 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;

(D) The time an employee is actually engaged in or connected with the movement of any train; and

(E) Such period of time as is otherwise provided by this chapter.

45 U.S.C. § 61(b)(3).

In determining whether the interpretation adopted by the FRA is the proper one, we first consider “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, at 842-43, 104 S.Ct. at 2781-82. On the other hand, “if the statute is silent or ambiguous with respect to the specific issue,” the court must consider whether the agency’s interpretation is a reasonable one. Id. at 843, 104 S.Ct. at 2782.

The statute is clearly “silent or ambiguous” with respect to the question of whether time waiting for deadhead transportation is on-duty time, limbo time, or off-duty time. So we must consider whether the agency’s interpretation is “a reasonable one.” In order to make that determination we must consider whether the agency’s interpretation “is based on a permissible construction of the statute.” Id. If the answer is yes, then the Court must defer to the interpretation advanced by the agency charged with administering the statute. Id. We would have to reject any administrative construction which is contrary to clear congressional intent. We are not, however, required to agree completely "with the construction put forward by the agency. Chevron tells us that we do not have to find the agency’s intexpretation is the only one it could have adopted, nor does it have to be the interpretation we would have reached if the question initially arose in a judicial proceeding. Id. at 843, n. 11, 104 S.Ct. at 2782, n. 11. Had this question come before us originally we would have been inclined to draw a bright line at a different point in time, that is, at the time the relief crew took over operation of the train and the “expired” crew was therefore relieved of all operating duties. But that interpretation is not the one reached by the Ninth Circuit and not the one adopted by the FRA.

Because we conclude that the language of the HSA does not definitively answer the question regarding the proper characterization of waiting time, we next consider whether the FRA’s interpretation “is based on a permissible construction of the statute.” Id. If so, we are required to defer to the interpretation advanced by the agency charged with administering the statute. Id. at 844, 104 S.Ct. at 2782.

We find that the interpretation advanced by the FRA, in reliance on the Ninth Circuit opinion, is reasonable and based upon a permissible construction of the HSA. Indeed, we would be hard pressed to say that an agency’s reliance upon the opinion of a Circuit Court of Appeals is unreasonable.

III. Conclusion

In accordance with the foregoing, we affirm the Federal Railroad Administration’s order interpreting the Hours of Service Act to provide that time spent waiting by a train crew for transportation to its point of release is “on duty” time to be counted toward the maximum 12 consecutive hours on duty allowed by the Hours of Service Act.

1 . There has been only one prior reported decision holding that time waiting for deadhead transportation is on duty time. United States v. Pennsylvania RR Co., 275 F.Supp. 345 (W.D.Pa.1967).