Stanley R. NICKELS, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD, INC., Defendant-Appellee. Donald C. Cooper, Plaintiff-Appellant, v. CSX Transportation, Inc., Defendant-Appellee.
Nos. 07-1736, 07-2437
United States Court of Appeals, Sixth Circuit
March 18, 2009
Rehearing and Rehearing En Banc Denied May 22, 2009
560 F.3d 426
Argued: July 31, 2008.
In reaching this conclusion, we note that the government does not oppose it. In the aftermath of Chambers, the government concedes that Ford‘s walkaway offense does not amount to a crime of violence, “retreat[ing] from its prior position that walkaway escapes are violent felonies.” Letter Br., Feb. 11, 2009 at 1 (internal quotation mark and alteration omitted). That concession is not dispositive because a party‘s position in a case (even when that party is the United States) does not dictate the meaning of a federal law, cf. Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), because Chambers requires a modification of circuit precedent and because the separate treatment of walkaway escapes after Chambers deserves an explanation.
III.
For these reasons, we reverse and remand for resentencing.
Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.
OPINION
ALICE M. BATCHELDER, Circuit Judge.
In this consolidated action, Stanley Nickels and Donald Cooper appeal entries of summary judgment on their Federal Employers’ Liability Act (“FELA“) claims. These former railway employees allege injuries caused by years of walking on oversized track ballast. The district courts below held that a Federal Railway Safety Act (“FRSA“) regulation covers the issue of ballast size, precluding plaintiffs’ negligence actions. We affirm.
I.
Nickels and Cooper both claim that their former employers failed to provide a safe working environment by using large mainline ballast—instead of smaller yard ballast—underneath and adjacent to tracks receiving heavy foot traffic. Track ballast is the stone or other material placed underneath and around railroad tracks to provide the structural support, drainage, and erosion protection necessary for safe rail travel. The two main sizes of track ballast are mainline ballast, which can be up to 2 inches in diameter, and yard ballast, which is typically 1 inch in diameter or smaller. The American Railway Engineering and Maintenance of Way Association (“AREMA“)1 recommends that railroads use yard ballast in areas where there is heavy foot traffic because walking on mainline ballast is more strenuous and provides for uneven footing.
Nickels began working for Grand Trunk in 1976. His job required him to walk on track ballast so that he could, among other things, conduct switching operations (move railcars from one track to another). Although most of this walking was done on yard ballast, a stint from 2002 to 2004 at Grand Trunk‘s Lansing, Michigan railyard required Nickels to walk on mainline ballast. In early 2004 Nickels began experiencing pain and discomfort in his feet, especially his big toes. Ultimately, Nickels had to have surgery on both feet—his left foot in January 2005, and his right foot in April 2005. Nickels unsuccessfully attempted to return to work and has been on permanent restriction since October 2005.
Cooper began working for CSX in 1967. His duties required him to walk on mainline ballast. In 2000, Cooper sought treatment for stiffness and pain in his right leg, from his hip down to his toes. By February 2003, Cooper was no longer able to perform his job responsibilities. He eventually was diagnosed with avascular necrosis, “a cellular death of bone components due to interruption of the blood supply resulting in bone destruction, pain, and loss of joint function.”
Nickels and Cooper separately sued their former employers under the FELA,
II.
We review de novo a district court‘s grant of summary judgment, using the same standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Whether a federal law preempts a state law or precludes another federal law is a question of law which we review de novo. See Nye v. CSX Transp., Inc., 437 F.3d 556, 560 (6th Cir. 2006) (citing Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 985 (6th Cir. 2004) (overruled on other grounds)).
III.
This case requires us to examine the interplay of two federal statutes, both of which were designed to promote railway safety. The FELA makes a railroad liable to its employees injured “by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
The FRSA‘s purpose is “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000) (quoting
We must consider: (1) whether a FELA claim is precluded if the same claim would be preempted by the FRSA if brought as a
A.
Two of our sister circuits have held that the uniformity demanded by the FRSA “can be achieved only if [federal rail safety regulations] are applied similarly to a FELA plaintiff‘s negligence claim and a non-railroad-employee plaintiff‘s state law negligence claim.” Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir. 2001); see also Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir. 2000). Dissimilar treatment of the claims would have the untenable result of making the railroad safety regulations established under the FRSA virtually meaningless: “The railroad could at one time be in compliance with federal railroad safety standards with respect to certain classes of plaintiffs yet be found negligent under the FELA with respect to other classes of plaintiffs for the very same conduct.” Id. (quoting Waymire v. Norfolk & W. Ry. Co., 65 F.Supp.2d 951, 955 (S.D.Ind.1999), aff‘d, 218 F.3d 773 (7th Cir. 2000)).
We agree with this analysis. Although the courts in Lane and Waymire addressed FELA claims of unsafe train speed in light of FRSA speed-limit regulations, the FRSA‘s concern for uniformity leads us to reach the same conclusion regarding ballast regulations. And while railroads may face a lesser likelihood of state-law claims alleging negligent ballast composition, any exposure to conflicting standards undermines uniformity. See Norris v. C. of Ga. R.R. Co., 280 Ga.App. 792, 635 S.E.2d 179, 183 (2006). The plaintiffs’ claims are precluded by the FRSA if they would have been preempted if brought by a non-employee under state law.3
B.
Under the FRSA‘s preemption provision, a plaintiff can bring an action under state law unless the Secretary has prescribed a regulation or issued an order “covering the subject matter of the State requirement.”
Unless it is otherwise structurally supported, all track shall be supported by material which will—
(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.
The gist of these claims is that the railroads used large mainline ballast in areas where smaller yard ballast would have sufficed—such as passing sidings, switch leads, and interior yard tracks. The regulation, however, makes no distinction between mainline and secondary track; it provides that “all track shall be supported by material” able to transmit and distribute track and equipment loads, restrain the track under dynamic loads and thermal stress, provide adequate drainage, and maintain proper track crosslevel, surface, and alinement. Id. (emphasis added). Rather than prescribing ballast sizes for certain types or classes of track, the regulation leaves the matter to the railroads’ discretion so long as the ballast performs the enumerated support functions. In this way, the regulation substantially subsumes the issue of ballast size.
In Easterwood, the Supreme Court held that a federal regulation limiting train speed to 60 miles per hour for a particular class of grade crossings preempted a state tort claim that a train operating under the speed limit was nonetheless going unreasonably fast. 507 U.S. at 673-75, 113 S.Ct. 1732. The Court explained:
On their face, the provisions of § 213.9(a) address only the maximum speeds at which trains are permitted to travel given the nature of the track on which they operate. Nevertheless, related safety regulations adopted by the Secretary reveal that the limits were adopted only after the hazards posed by track conditions were taken into account. Understood in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation of the sort that respondent seeks to impose on petitioner.
Id. at 674, 113 S.Ct. 1732. The Court noted that because automobile driver conduct is “the major variable in grade crossing accidents,” the Secretary of Transportation relied heavily on the type of warning signals and other safety devices present at a class of grade crossings to determine the appropriate speed limit for that class. Id. at 674-75, 113 S.Ct. 1732. “Read against this background,” the Court concluded, “§ 213.9(a) should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings.” Id. at 675, 113 S.Ct. 1732 (emphasis added). In other words, the Secretary had already determined what was a reasonable speed for that class of grade crossings.
Likewise, in
The plaintiffs argue that their theory of recovery “is obviously consistent and compatible with [the railroads‘] obligations under the FRSA ballast regulations.” This is so, they contend, because the railroads could have used smaller ballast in areas of heavy foot traffic without violating their duty to provide a stable track. Even if this proposition is true, the fact that track stability and safe footing are not mutually exclusive does not mean that
The plaintiffs nonetheless argue that Congress has amended the FRSA‘s preemption provision to require “incompatibility” as a “second test” for preemption. In 2007 Congress added a new subsection to
Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party . . . has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).
The plaintiffs note that
IV.
Because
ROGERS, Circuit Judge, dissenting.
The plaintiffs’ FELA claims are not categorically precluded by the FRSA in this case. Like the majority, I agree with the well-reasoned holdings from other jurisdictions that a railway-safety claim that would be preempted by the FRSA if brought by a nonemployee under state tort law, would necessarily be precluded by the FRSA if brought by a railroad employee under the FELA. See Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443-44 (5th Cir. 2001); Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 775-76 (7th Cir. 2000). However, under the Supreme Court‘s FRSA federal preemption analysis, the FRSA regulations that require adequate physical support for rails do not sufficiently imply that railroads may use any grade of sufficiently supportive ballast, no matter the risk to employees who must walk on the ballast. I therefore respectfully dissent.
The Supreme Court‘s analysis in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), the seminal FRSA preemption case, strongly suggests that the FRSA regulation in this case does not preclude an FELA action. The regulation, while putting requirements on railroads regarding adequate physical support for trains, in no way implies that such physical support may be obtained without regard to harms to workers from the roughness of the walking surface of the ballast. This is in direct contrast with the situation in Easterwood, where the Supreme Court relied on just such an implication.
Nothing in
Unless it is otherwise structurally supported, all track shall be supported by material which will—
(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equip-
ment and thermal stress exerted by the rails; (c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.
Sections 213.33 and 213.37 then address roadbed drainage and trackside vegetation. Further regulations set forth highly technical requirements for track geometry. See §§ 213.57 (curves; elevations and speed limitations), 213.63 (track surface), 213.55 (alinement). All of these provisions are primarily concerned with providing a stable track and roadbed.1 The provisions are essentially silent with respect to conditions of the walkways directly adjacent to the track.2
Plaintiffs point to nothing in the regulation implicitly permitting the railroad to use whatever size ballast it wants as long as there is adequate support. This is in direct contrast with what the Supreme Court relied upon in Easterwood. In that case the Supreme Court held that a state tort action for wrongful death, to the extent that it was based on a train‘s traveling at excessive speed, was preempted by FRSA train-speed regulations. Easterwood, 507 U.S. at 676, 113 S.Ct. 1732. The regulations relied upon by the railroad limited the train‘s speed to 60 m.p.h. for the class-four crossing at which the collision with the decedent‘s truck took place. Id. at 673, 113 S.Ct. 1732. The Supreme Court did not simply say that because the defendant‘s train was going under the speed limit, and because the claim was for excessive speed, the claim was preempted. Instead, the Court was at pains to infer that the speed limit was not only a prohibition on going over 60 m.p.h., but also a permission to go up to 60 m.p.h. “Understood in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation of the sort that respondent seeks to impose on petitioner.” Id. at 674, 113 S.Ct. 1732. The Court came to this conclusion by the following reasoning:
Because the conduct of the automobile driver is the major variable in grade crossing accidents, and because trains offer far fewer opportunities for regulatory control, the safety regulations established by the Secretary concentrate on providing clear and accurate warnings of the approach of oncoming trains to drivers. Accordingly, the Secretary‘s regulations focus on providing appropriate warnings given variations in train speed. [The Supreme Court here provided several examples in support.]
Read against this background, [the FRSA speed limit regulation] should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings.
Id. In other words, the focus in the regulations on grade crossing warnings implied that trains could freely proceed at a speed
In contrast, the regulation here cannot be viewed as giving defendants permission to comply in any manner they desire. No interrelation between physical support for trains and the surface of walkways has been identified in the regulatory scheme in this case. Whereas in Easterwood the Court found in effect that the regulatory scheme demanded that safety from crossway collisions come primarily from signals rather than slow speed, there is no basis for us to read that adequate physical support for trains and safe walkways for workers are interests that have been counterbalanced to permit the use of any grade of surface ballast on walkways.
This case then is no different from one in which a railroad worker brings an FELA suit for being injured by debris when ballast is carelessly unloaded into place, or an FELA suit for injury from worker contact with a carcinogenic herbicide used to keep plants from growing on ballast. Nothing in the ballast-support regulations contemplates that there can categorically be no negligence with respect to a railroad‘s construction or maintenance of ballast.
A number of courts have accordingly held that FRSA regulations do not preclude FELA suits based on ballast walkways. See Wilcox v. CSX Transp., Inc., No. 1:05-CV107, 2007 WL 1576708 (N.D.Ind. May 30, 2007); Grimes v. Norfolk S. Ry. Co., 116 F.Supp.2d 995 (N.D.Ind.2000); Elston v. Union Pac. R.R. Co., 74 P.3d 478 (Colo.Ct.App.2003);3 see also S. Pac. Transp. Co. v. Pub. Utils. Comm‘n, 647 F.Supp. 1220 (N.D.Cal.1986), aff‘d per curiam, 820 F.2d 1111 (9th Cir. 1987).
This of course is not to say that a jury may require an action that violates the FRSA regulation. If, for instance, a successful FELA claim effectively created “a walkway requirement or other safety regulation that hindered or prevented a railroad from complying simultaneously with an FRA regulation designed to enhance safety in a different area,” Missouri Pacific Railroad Co. v. Railroad Commission of Texas, 833 F.2d 570, 574 (5th Cir.1987), FELA relief would clearly be precluded on that ground. A jury verdict for the plaintiff cannot impose “‘different or higher standards’ of track construction by superimposing the walkway requirement on federal track . . . structure regulations.” See id. at 575. In that instance, the railroad could not comply both with the judgment against it on the FELA claim and with the FRSA regulation.
But nothing like that has yet been shown by defendants in this case. Unlike the regulation at issue in Easterwood, the FRSA regulation is a floor that guarantees a minimum level of safety and there are many ways that the railroad can meet the standard. The manner in which the railroad complies with the standard may involve using ballast that is more or less conducive to creating safe walkways for railroad employees. While compliance
Because defendants have not shown that the regulation would preempt state actions under Easterwood‘s standard, it similarly does not preclude FELA relief.
Notes
(2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order—
(A) is necessary to eliminate or reduce an essentially local safety or security hazard;
(B) is not incompatible with a law, regulation, or order of the United States Government; and
(C) does not unreasonably burden interstate commerce.