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- SUPREME COURT OF THE UNITED STATES
- --------
- Nos. 91-790 and 91-1206
- --------
- CSX TRANSPORTATION, INC., PETITIONER
- 91-790 v.
- LIZZIE BEATRICE EASTERWOOD
-
- LIZZIE BEATRICE EASTERWOOD, PETITIONER
- 91-1206 v.
- CSX TRANSPORTATION, INC.
- on writ of certiorari to the united states court
- of appeals for the eleventh circuit
- [April 21, 1993]
-
- Justice Thomas, with whom Justice Souter joins,
- concurring in part and dissenting in part.
- I believe that the Federal Railroad Safety Act and the
- Secretary of Transportation's implementing regulations
- pre-empt neither of respondent/cross-petitioner Easter-
- wood's state-law tort claims. I therefore concur in Parts
- I and II of the Court's opinion but dissent from the
- remainder.
- In Part III of its opinion, the Court holds that the
- Secretary's regulation setting -maximum allowable operat-
- ing speeds for all freight and passenger trains- pre-empts
- Easterwood's claim that CSX -breached its common-law
- duty to operate its train at a moderate and safe rate of
- speed- below the federally specified maximum speed at the
- Cook Street crossing. Ante, at 14 (citing 49 CFR
- 213.9(a) (1992)). The Court concedes, however, that -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.- Ante, at 15 (emphasis
- added). Likewise, CSX makes no effort to characterize
- any duty to reduce speed under Georgia law as a state-
- law obligation based on track safety, the precise -subject
- matter- -cover[ed]- by the Secretary's speed regulation.
- 45 U. S. C. 434. Indeed, CSX admits that it shoulders
- a state-law duty to take measures against crossing acci-
- dents, including an -attempt to stop or slow the train if
- possible to avoid a collision.- Reply Brief for Petitioner
- in No. 91-790, p. 3. The Court effectively agrees, as is
- evident from its decision to limit its opinion to a common-
- law negligence action for excessive speed and from its
- refusal to address related state-law claims for the viola-
- tion of a statutory speed limit or the failure to avoid a
- specific hazard. See ante, at 16-17, and n. 15. For me,
- these concessions dictate the conclusion that Easterwood's
- excessive speed claim escapes pre-emption. Speed limits
- based solely on track characteristics, see 49 CFR
- 213.51-213.143 (1992), cannot be fairly described as
- -substantially subsum[ing] the subject matter of . . . state
- law- regulating speed as a factor in grade crossing safety.
- Ante, at 5.
- The Secretary's own explanation of his train speed
- regulation confirms my view that the federal speed
- standard does not pre-empt state regulation of train speed
- as a method of ensuring crossing safety. When the
- Secretary promulgated his speed regulation in conjunction
- with a set of track safety standards, he declined to
- consider -variable factors such as population density near
- the track- because these matters fell -beyond the scope of
- the notice of proposed rule making.- 36 Fed. Reg. 20336
- (1971). See also id., at 11974 (notice of proposed rule-
- making). By contrast, the state law supporting Easter-
- wood's excessive speed claim would impose liability on
- CSX for -operating [a] train at a speed that was greater
- than reasonable and safe- at a crossing -adjacent to a
- busily traveled thoroughfare.- App. 4-5. Because the
- Secretary has not even considered how train speed affects
- crossing safety, much less -adopted a rule, regulation,
- order, or standard covering [that] subject matter,- Georgia
- remains free to -continue in force any law- regulating
- train speed for this purpose. 45 U. S. C. 434.
- Only by invoking a broad regulatory -background- can
- the Court conclude that -213.9(a) should be understood
- as covering the subject matter of train speed with respect
- to track conditions.- Ante, at 16. It rests in part on the
- Manual on Uniform Traffic Control Devices for Streets
- and Highways, which has no pre-emptive effect by its own
- terms or under the federal regulations requiring compli-
- ance with it. See ante, at 9-11; 23 CFR 646.214(b)(1)
- (1992) (permitting -State standards- to -supplemen[t]- the
- Manual). The Court goes so far as to rely on a federal
- crossing gate regulation that concededly does not govern
- the Cook Street site. Compare ante, at 15 (-[A]utomatic
- gates are required for federally funded projects-), with
- ante, at 13 (-These facts do not establish that federal
- funds `participate[d] in the installation of the [warning]
- devices' at Cook Street-) (quoting 23 CFR 646.214(b)(3)(i)
- (1992)). Rather than attempt to excavate such scant
- evidence of pre-emption, I would follow the most natural
- reading of the Secretary's regulations: the Federal Govern-
- ment has chosen neither to regulate train speed as a
- factor affecting grade crossing safety nor to prevent States
- from doing so. The Court's contrary view of these regula-
- tions' pre-emptive effect may well create a jurisdictional
- gap in which States lack the power to patrol the poten-
- tially hazardous operation of trains at speeds below the
- applicable federal limit.
- Had the Secretary wished to pre-empt all state laws
- governing train speed, he could have more explicitly
- defined the regulatory -subject matter- to be -cover[ed].-
- Doubtless such a decision would be true to Congress'
- declared intent that -laws, rules, regulations, orders, and
- standards relating to railroad safety shall be nationally
- uniform to the extent practicable.- 45 U. S. C. 434. To
- read the Secretary's existing maximum speed regulation
- as encompassing safety concerns unrelated to track
- characteristics, however, negates Congress' desire that
- state law be accorded -considerable solicitude.- Ante, at
- 5. The -historic police powers of the States- to regulate
- train safety must not -be superseded . . . unless that [is]
- the clear and manifest purpose of Congress.- Rice v.
- Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947).
- Respect for the presumptive sanctity of state law should
- be no less when federal pre-emption occurs by administra-
- tive fiat rather than by congressional edict. See Fidelity
- Fed. Savings & Loan Assn. v. De la Cuesta, 458 U. S.
- 141, 153-154 (1982).
- I would uphold Easterwood's right to pursue both of the
- common-law tort claims at issue. Accordingly, I respect-
- fully dissent from the Court's conclusion that the excessive
- speed claim is pre-empted.
-