693 F.2d 432 | 5th Cir. | 1982
Lead Opinion
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.
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.
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 § 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 contin*434 ue 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 § 209(a) as authorizing a standard of liability that does not require a scienter element. Moreover, the FRA, by adopting the revised regulations, interprets § 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 § 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,
The legislative history being doubtful, we follow the counsel of Justice Frankfurter, and go to the statute.
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 sub-chapter.
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 sub-chapter.”
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).”
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?
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
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”
Second, the hoary canon of ejusdem gen-eris holds out some slight comfort. Of it we have said, as appellant reminds us,
“In divining legislative intent, however, a venerable precept of statutory construction, the doctrine of ejusdem generis, warns against expansively interpreting broad language which immediately follows narrow and specific terms. To the contrary, this maxim of statutory analysis counsels courts to construé the broad in light of the narrow, in a commonsense recognition that general and specific words, when present together, are associated with and take color from each other.” United States v. Insco, 496 F.2d 204, 206 (5th Cir.1974).
As terms describing knowing and intentional acts, “disobey” and “disregard” are more specific than “fail to adhere to,” which may carry either sense, volitional or nonvolitional. By Webster’s, “ADHERE is a general term somewhat more bookish than STICK to indicate any holding to, esp. steadily and over a period of time .... ” Thus, by its terms, the canon applies and suggests a construction of “adhere” that is consonant with the more specific terms with which it is brigaded. This, the volitional meaning, is also its primary dictionary meaning. Finally, our decision today is consistent with the original and contemporaneous construction of the Act, adhered to by the Secretary for seven years, which with certain exceptions imposed a scienter standard of liability.
All of the above is pretty thin stuff — jejune, conjectural and artificial. We regret deeply that we must rest a determination of nationwide moment on such a shaky foundation: a “least-unlikely” basis. It is, however, not open to us to remain in doubt; we must decide. Facing language of consummate ambiguity and deprived of proper tools of construction by a legislative history all but meaningless, we apply such tools as we possess. We hold that the standard of liability is “known or should have known.” If in this we are mistaken, it may be that, given the weight of the matters at stake, Congress or the Court will tell us so. REVERSED.
.It did not, however, repeal the existing, more narrow and specific statutes regulating certain subjects directly: the Safety Appliance Acts, 45 U.S.C. §§ 1-7, 8-10 and 11-16 (1893-1910); the Ash Pan Act, 45 U.S.C. §§ 17-21 (1908); the Locomotive Inspection Act, 45 U.S.C. §§ 22-34 (1911); or the Signal Inspection Act, 49 U.S.C. § 26 (1887).
. A succeeding subsection permits the Secretary to impose substantial civil penalties for breach of the rules and regulations so prescribed.
. Indeed, since both terms imply conscious, willful action, it may well be that if they stood alone in the statute even the use of a negligence standard — should have known — in a regulation would be unauthorized.
. “It shall be unlawful for any common carrier ... to use or permit to be used .... ” S. 1933 (91st Cong.). This is the formula of words employed in the earlier railway safety statutes, referred to in text above, and has uniformly been held to create absolute liability.
. Such a meaning as is found, for example, in the Hazardous Materials Transportation Act, 49 U.S.C. § 1809, “Whoever knowingly commits an act ...,” the “should-have-known” formulation recognized on all hands as indicating a negligence standard, or the strict liability formula discussed above.
. Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 414, 100 L.Ed. 412 (1956). The legislative history is hot helpful except in one aspect to which we attach more significance than did the trial court, the deletion from S. 1933 of its original language plainly laying down a strict liability standard and the substitution of the ambiguous phrase that confronts us today. With this reservation, we endorse and adopt the district court’s treatment of that history, to be found at 518 F.Supp. 121, 126-131 (N.D.Tex.1981).
. The Railroad Safety Act constitutes “this sub-chapter.”
. The construction adopted by the district court might well raise serious constitutional questions of overbroad delegation. Since Industrial Union v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980), we are no longer disposed to regard the nondelegation doctrine as moribund, as did the trial court, “A construction of the statute that avoids this kind of open-ended grant should certainly be favored.” Id. at 646, 100 S.Ct. at 2866. And see J. Ely, Democracy and Distrust, A Theory of Judicial Review 133 (1980).
. Webster’s Third New International Dictionary (Unabridged) 25 (1971).
.To this last observation, one that we recognize as of slight weight, the Intervenors rejoin that Congress did not wish to grant the Secretary power to relax the standard of liability in these narrow areas of especial importance to rail safety. This argument partly assumes, however, that the Secretary was to be empowered to pick and choose among such standards, a construction of the statute that we have rejected. See text above and note 8. To be sure, he could obtain the same result by declining to promulgate the earlier specific statutes in any form, but that seems to us unlikely in view of the pitched battles waged over their passage and their long application and acceptance.
. At least, however, the known rubric for the standard adopted by us today was not present in the original bill and excised, as was that for ' strict liability.
. Stigmatized by Webster as “obsolete.”
Dissenting Opinion
dissenting:
In resolving the question of whether section 209(a) of the Railway Safety Act allows the Secretary of Transportation to promulgate regulations with a strict liability standard, a historical perspective is helpful. The Railway Safety Act (RSA) of 1970 is the most recent statute in a succession of railroad safety laws which date back to 1893. Its predecessors, which dealt with specific aspects of railroad safety,
In light of labor’s lack of protest, other aspects of legislative history, although admittedly ambiguous indicators of congres
Interpreting the language “disobey, disregard, or fail to adhere” as permitting a strict liability standard has more to recommend it than a historical or continuity factor. The language of the statute itself suggests this interpretation. Since the majority has dissected the syntax of the twenty-seven word sentence,
Furthermore, a “succession of standards” construction
Nor is the “succession of standards” construction undermined by the prior administrative interpretation of the Act. The original freight car safety regulations promulgated under the Act in 1973 contained a “knew or should have known” standard. It is not the 1973 regulations, however, but rather the 1979 regulations, to which this Court must accord great deference.
In view of the statutory language and the long history of prior railroad safety legislation, this writer remains convinced that the Act permits the Secretary to promulgate either scienter or nonscienter regulations. Prior laws gave the Secretary broad discretion. The legislative history of the 1970 Act gives no indication — no possible hint — of any intent on the part of Congress to change that discretion. Surely, if that had been congressional intent, there-would have been an outcry from certain groups. No such outcry was made; not one voice of protest was heard. This writer would uphold the judgment of the district court that the language in section 209(a) of the Act (“fail to adhere”) authorizes the FRA to adopt regulations which impose a standard of strict liability.
. Among its predecessors were the Safety Appliance Act (1893), the Hours of Service Act (1907), the Ash Pan Act (1909), the Signal Inspection Act (1910), the Accident Reports Act (1910), and the Locomotive Inspection Act (1911).
.See, e.g., O’Donnell v. Elgin J. & E. Ry., 338 U.S. 384, 70 S.Ct. 200, 204, 94 L.Ed. 187 (1949), involving a violation of the Safety Appliance Act, in which this Court stated:
But this Court early swept all issues of negligence out of cases under the Safety Appliance Act. For reasons set forth at length in our books, the Court held that a failure of equipment to perform as required by the Safety Appliance Act is in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability — a liability that cannot be escaped by proof of care or diligence. These rigorous holdings were more recently epitomized by Chief Justice Hughes, speaking for the Court: “The statutory liability is not based upon the carrier’s negligence. The duty imposed is an absolute one, and the carrier is not excused by any showing of care, however assiduous.”
(citations omitted).
Earlier, in Brady v. Terminal R.R. Ass’n, 303 U.S. 10, 58 S.Ct. 426, 429, 82 L.Ed. 614 (1938), this Court had defined the carrier’s obligation as an absolute one which was triggered by a mere “failure to comply”:
This final question must be determined in the light of the nature of the obligation resting upon the carrier in relation to the use of a defective car. The statutory liability is not based upon the carrier’s negligence. The duty imposed is an absolute one, and the carrier is not excused by any showing of care, however assiduous. The breadth of the statutory requirements is shown by the fact that it embraces all locomotives, cars, and similar vehicles used on any railway that is a highway of interstate commerce and is not confined exclusively to vehicles engaged in such commerce. Laying down this comprehensive rule as a matter of public policy, Congress has made no exception of those employed in inspecting cars. The statute has been liberally construed “so as to give a right of recovery for every injury the proximate cause of which was a failure to comply with a requirement of the Act.” In Davis v. Wolfe, reviewing the earlier cases, the Court held that one can recover “if the failure to comply with the requirements of the Act is a proximate cause of the accident resulting in injury to him while in the discharge of his duty, although not engaged in an operation in which the safety appliances are specifically designed to furnish him protection.”
(citations omitted).
. The RSA reads as follows:
§ 438. Penalties
(a) Unlawful acts. 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 title.
45 U.S.C. § 438(a).
. Shortly after the 91st Congress convened, Senator Hartke introduced S. 1933, which contained language denoting a strict liability standard: “It shall be unlawful for any common carrier ... to use or permit to be used any facilities or equipment ... unless any such facilities are .. . maintained ..., in accordance with applicable rules, regulations, and minimum standards promulgated by the Secretary of Transportation.” The task force, which had been established shortly before Senator Hartke introduced his bill, was composed of representatives of management, labor, and state public utilities commissions. The task force’s draft bill, adopted by the Secretary of Transportation, became known as the “administration bill.”
. See note 3, supra.
. The majority, citing Industrial Union Dept. v. American Petroleum Inst., 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980), intimates that such a construction might raise serious constitutional questions of overbroad delegation. This writer does not view Industrial Union as barring the delegation at issue in the instant case — a delegation to the agency of the authority to promulgate regulations with any one of three standards of liability.
. The majority rejects the “succession of standards” interpretation based on its threshold syntactical observation that Congress laid down a standard (or standards) of liability that applies to every regulation promulgated under the Act.
. Fort Worth & Denver Ry. Co. v. Goldschmidt, 518 F.Supp. 121, 130 (N.D.Tex.1981).
. The district court dispensed with plaintiffs’ original and contemporaneous construction argument, relied on by the majority, as follows:
For seven years, between the time of its promulgation of the original regulations under the FRSA in 1973 and the time of its promulgation of the amended regulations here in issue in December 1979, the FRA adhered to and enforced a liability policy based on a “knew or should have known” standard. Plaintiffs argue that this first interpretation of the standard of liability authorized by the FRSA is entitled to deference on judicial review. Moreover, plaintiffs argue that this initial interpretation is entitled to great weight because it was a contemporaneous construction made soon after the time of enactment and such interpretation has been consistently applied for a seven year period. Plaintiffs conclude by implying that based upon these [sic] set of circumstances, the Court should reject the 1979 interpretation and accept the 1973 interpretation.
Plaintiffs’ argument is a misleading interpretation of the law. The proper starting point is the 1979 regulations. It is these regulations which are entitled to “great deference.” Whether the 1979 regulations are given “peculiar” weight depends on whether they are the result of a contemporaneous construction or whether they have been consistently applied. Therefore, a correct statement of the law is that agency regulations which interpret an enabling statute deserve great deference by a reviewing court, and such interpretation is given a peculiar weight when the regulations are adopted contemporaneously with enactment of the enabling statute or where the agency has given a consistent interpretation of the enabling statute.
Surely the law is not what plaintiffs imply. Agencies are not forbidden to revamp, revise or even reject prior regulations, when it has been determined that the prior regulations are no longer responsive to the problems that the agency is statutorially [sic] directed to remedy. The Court has to assume that the FRA changed its regulatory scheme, not based on some whim, but because the FRA, relying on its expertise in the field of railroad safety, determined that a new regulatory scheme would be more efficient in meeting the goal of the FRSA. It is an anomalous argument to say that a regulatory scheme’s shortcomings should be used against an agency when it tries to rectify those shortcomings. This Court has to assume that the FRA relied on its expertise to determine that strict liability regulations would be more beneficial in promoting railway safety than “knew or should have known” regulations.
Therefore, in adopting regulations which impose a strict liability standard, the FRA*440 interpreted the FRSA as authorizing such regulations. It is this interpretation which the Court is bound to give great deference. There is no case holding that a lesser weight or no weight should be afforded such an interpretation, merely because it is not consistent with prior regulations which simply were not adequate.-
Moreover, the 1973 and 1980 regulations are not inconsistent. The FRA did not say in 1973 that it was adopting regulations to the fullest extent as authorized by the FRSA. At most it could be implied that the FRA determined that a “knew or should have known” standard was more appropriate in that early stage of development of the FRSA. If plaintiffs’ argument is carried to the extreme, every time an agency decides not to use its full statutory power, such a decision, based on conditions then present, would forever forbid the agency from exercising its full power in the event changed conditions so warrant.
Obviously the FRA cannot adopt strict liability regulations, if doing so exceeds its statutory authority. The Court only holds that merely because the FRA decided to change its regulatory scheme, cannot be used as an indication that the FRA is now exceeding its statutory authority.
. Id. at 133 n. 23.
. Id.