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SUPREME COURT OF THE UNITED STATES
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Nos. 91-790 AND 91-1206
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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 Easterwood'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 operating 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 ____
S213.9(a) (1992)). The Court concedes, however, that "the provisions of
S213.9(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 91-790 & 91-1206 - CONCUR/DISSENT
2 CSX TRANSPORTATION, INC. v. EASTERWOOD ____
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. S434. Indeed, CSX admits that it shoulders a state-
law duty to take measures against crossing accidents, including an "attempt to
stop or slow the train if possible to avoid a
collision." (Ftnote. 1) Reply Brief for Petitioner in No. 91-790, p. 3. The (Ftnote. 1)
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 violation 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 SS213.51-213.143 (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-
____________________
1) See generally Ga. Code Ann. S46-8-190(b) (1992) (requiring an "engineer 1)
operating [a] locomotive" to "exercise due care in approaching [a] crossing, in
order to avoid doing injury to any person or property which may be on the
crossing"); Georgia Railroad & Banking Co. v. Cook, 94 Ga. App. 650, 651-652, 95 ______________________________ ____
S. E. 2d 703, 706-707 (1956); Atlantic Coast Line R. Co. v. Bradshaw, 34 Ga. __________________________ ________
App. 360, 129 S. E. 304 (1925). 91-790 & 91-1206 - CONCUR/DISSENT
CSX TRANSPORTATION, INC. v. EASTERWOOD 3 ____
making). (Ftnote. 2) By contrast, the state law supporting Easterwood's (Ftnote. 2)
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. S434.
Only by invoking a broad regulatory "background" can the Court conclude that
"S213.9(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
compliance with it. See ante, at 9-11; 23 CFR S646.214(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 S646.214(b)(3)(i) (1992)).
Rather than attempt to excavate such scant
____________________
2) I reject the Solicitor General's contention that "[t]he Secretary has 2)
concluded that reduced train speeds do not represent an appropriate method of
preventing crossing accidents." Brief for United States as Amicus Curiae 29. _____________
The very source cited in support of this proposition states that "[i]f a colli-
sion [at a crossing] seems unavoidable," a locomotive engineer "must decide
whether the train should be slowed or put into emergency mode." Rail-Highway
Crossings Study, Report of the Secretary of Transportation to the United States
Congress 5-10 (April 1989). The Secretary's original declaration that he did
not consider crossing safety concerns therefore stands uncontradicted. 91-790 & 91-1206 - CONCUR/DISSENT
4 CSX TRANSPORTATION, INC. v. EASTERWOOD ____
evidence of pre-emption, I would follow the most natural reading of the Secre-
tary's regulations: the Federal Government 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 regulations' pre-emptive effect
may well create a jurisdictional gap in which States lack the power to patrol
the potentially 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. S434. 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 administrative 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 respectfully dissent from the Court's conclusion that
the excessive speed claim is pre-empted.