court my name is john steele and i represent ricky edwards in this case which he has brought pursuant to the federal employees liability act against his employer see a six transportation for on the job injuries he suffered the issue presented for this  whether the district court erred when it ruled that an unsanitary toilet compartment on a locomotive is not in fact a breach of forty nine c f or two to nine point one three nine of the locomotive inspection act so as to give  responsibility for money damages to mr edwards under the f b i we contend that the district court's ruling is error in error and in direct contradiction of first the clear language of the statute  a provision provides quote the sanitation department of each lead locomotive in use shall be sanitary there was and explain how you satisfy that you think not one thirty nine  nine but but let me just didn't get in here so there's very interpretation of the regulations and that's really where i want to take you i understand the argument that a support your position and i understand the argument that so when they inspect of course they have to make sure there's sanitary from that point at that point but if they become onset of terri over the next day or so that there's no obligation at all regardless of how unsanitary may be all regulations how you get around that certainly on thank you for the question under one thirty seven c must be looked at in context one thirty seven a deals with the equipment that must be included in the compartment itself deals with the exceptions to that sea of one thirty seven deals with ok if you find that a toilet is either on sanitary or defective that is a violation of a or b provision for at the time of daily inspection then there are certain things the locomotive cannot be in the lead position but you can do these maneuvers to still use that locomotive in essence it is ok if you find it really right then you have the ability to maneuver your concious in order to proceed with a defective or unsanitary locomotive that's true that's an operational issue that the f r a has said under their fining obligation not under the a feeling but under their finding an obligation that they may not impose a fine if after they perform that inspection they found that there's been a violation how you interpret this language from the federal administration the duty to remedy and i at it must be sanitary and if you look to their comments regarding one thirty nine a not one thirty seven the statute issue which is contained in the same federal registry ours looking at on page sixteen zero four five it says one thirty nine establishing a service in standards to and to ensure that sanitation compartments in occupied locomotives which is what we had are not unsanitary or defective paragraph a state of the railroad must service a sanitation  one thirty not a means that the floors total facility and washing facility must be free of trash and waste it is reasonable to your point your honor they know to expect that is a locomotive it is used some may not be present on the floor and that is a continuing obligation that is going to that has been recognized by many many courts i would this case of worked you know we know your client showed up for work not feeling well let's say what happened was a little different the bathrooms clean when he arrives to work you get sick use the bathroom and getting sick he messes the whole bathroom up he doesn't have time to clean it because he's got to run the train because back he now feel sick again and this time he doesn't go back to the bathroom now it's just like this case he does just what happens what would your answer be there excellent question the answer there is then the world would have available a defense that it does not have in this case where he does not self create and that is they would have the defense of soul proximate cause as a defense to a locomotive inspection not violation that does not exist in this case because you can't be contributory negligence if there is a violation but you can be the sole proximate cause there are cases where a plane of puts down his own luggage then trips over his own luggage well that he is the sole proximate cause of his injuries now i switch the hypothetical there's another engineer i mean just it happens  you run of the problem that the district court had and i still don't see the answer in your brief of how you avoid to have a train you know automotive company avoids the problem of having to have a full time inspector sure where  because of the nature of the statutory compliance for example the answer they do they have a full time obligation continuing absolute and will be hill strictly liable if the locomotive parts or purchases violate those sections for example c deals with the locomotive has an obligation the road has an obligation to keep the locomotive for walkways floors and passageways free of oil and debris so as to avoid slipping or tripping hazards case after case is recognize that that is an absolute and continuing law billy you don't have to identify when they all got there you don't have to identify the source of the oil all you have to show is at the time that the the employee was injured that the oil debris or waste was present on the floor at the time and there is a violation of the statute so this regulatory scheme is exactly the same as that one absolutely is contained in the same part two twenty nine part season part two twenty nine the one nineteen deals with ok we can go through them it is a part is part two two nine one one on a which is under the locomotive inspection act for this exact same regulatory scheme the case on point is called kernan cited in our brief also there are cases that have dealt with this and i can tell you that it's almost complete deference to an agency's interpretation of its own regulations you just say no incur it's now you're arguing correct or it's trumped by other provisions i think it's both explainable in terms of how they go about their business as well as you have to look at one thirty seven in conjunction with one thirty nine understand that they ever raised the point is how do we impose fines how can we make sure you're answering the question i'm asking is are question i'm asking do you know what i say i mean when i say some in iraq and our deference so see a success relied on the stock to some saying you're not challenging the existence of that doctrine or not challenging its application here am i getting that right and the actual reading of what they have actually said and the import as to what they what they said challenging the doctrine now you know and so it might correct that your claim is limited to statutory violation correct you don't allege a common law violation well we allege one the f e l a is set up to where you have to shape as stated by the way as well as a specific statute the daily inspection that is at issue is not really a daily inspection must occur within forty eight hours basically so anywhere from four to six crews could be a locomotive before the daily inspection  explain that but very quickly explain that again very quickly the duty to remedy under the f r a construct of when they find the railroad and this is if you look at the but richard is taken out it sets forth  finding schedules that's what that text is about how can we find the railroad for these obligations that is different then the obligations that where it has to its employees under the same provisions and i compliance manual with regard to this issue it talks about a very different type of way that they can find the road to this violation versus what has been held to be the real to be responsible for it or they feel like two very different standards for example in the compliance manual it says as to seats that it has to be either that's your time is up a potluck you know complete this i want makes you've answered judge olivers question but then the rest will be for a bottle like you simply as a seat and therefore a compliance manual it has the same limiting type of we can find on are only the circumstances but the case law is much broader and says it seats can be bent and still violate the locomotive inspection thank you thank you and that hours may please the court mr edwards can prevail in this case only if he can establish that the federal railroad administration through its regulations promulgated a requirement that imposes on railroads a perpetual duty of toilet cleanliness but there's no need to speculate about what the federal railroad administration was intending to do because in the final rule the created the regulations that we're discussing today there was a preamble that said in entirely clear terms a railroad has no obligation to clean a toilet that becomes dirty between the daily inspections now my friend on the other side was suggesting that the language that the f r a has used has arisen only in the context of the fin and i want to be very clear this morning that's not correct that's not true that in promulgating this regulation in particular in creating the standard on which mr edwards is relying the ira said in the proposed rule and again the final rule that the railroads only obligation is to clean a toilet when it comes around for its daily inspection but how do you respond to his point that you know this regime is analogous to keeping the floors free of oil grin that really is twenty four seven is he right about the promise about this other set of regulations and one thousand at think it is i think he is right about the promise and i can't claim the overall expertise of my adversary but these are very different situations and really different really i mean  i could see someone saying no it's got to do to keep this stuff clean throughout because in both settings people could get heard right the difference however is that a railroad a locomotive engine can be designed so that oil does not leak on to the floor and procedures can be put into place such that such as those regulations are to be satisfied meanwhile just by the nature of what a toilet does and what its function is on a railroad it would be impossible to prophylactic lee satisfied that regulation at all times and the key distinction between the oil case and the toilet case is that the f r a has said different things in these contexts the f r a did not say in the context of promulgating regulations about keeping the floors clean that if the floor becomes dirty between daily inspections you can leave it dirty all day that's not what the rules say i don't know one thousand neither so apologies if you don't know it the same degree or your friend does but i'm curious are there differences in the statute or is what's really going on no it's a fair thing to say that the statutory language is pretty similar in both settings but the regs and interpretation of the regs have just been construed differently is that what's going  on let me take a step back and give a clarification here because we're not really talking about an operating statute in any respect to the statute delegates substantial thirty to the f r a to promulgated safety regulations so we're not in a universe in which the f r is saying ok congress has told us that the toilets need to be clean the floors need to be clean and we're going to interpret this through our regulations what the average is doing here is actually promulgating substantive regulations that are sometimes described as being the statute for purposes of the  but are actually just regulations so it is sanitary in use those are statutory all right about that yes those appear in section one thirty nine eight of the regulations they're not in the statute no they're in the regulations  made the very mistake you're talking about right and the language in use this is another thing that the other side relies on considering it was my last question i want you to answer so we're talking about the regs now the regulatory regime the same and the four bathroom setting and all that's different is the f or interpretation of them no the language is different because in the the oil in the floor context you don't have the equivalent of section one thirty seven that says th reference is the fact that you're doing this inspection on a daily basis and one thirty nine and a that the subheading of that section is servicing requirements it's explaining how you service the locomotive in order to satisfy the general requirement which is in section one thirty seven eight you provide a sanitary toilet facilities it is quite possible that you could have an obligation to keep something stand kerry and also have a regulation that says at least you shall be required to clean the day and have it's theoretically possible that an agency could promulgated a set of rules that would work in that fashion but that is not what happens here and i think the clearest example of that is what the f r a did in sections one thirty seven c and one thirty seven d so one thirty seven c explains to the railroad what its options are if at the time of the daily inspection it determines that the toilet facility is not sanitary and it can't make a clean and what that provision says is ok here are five requirements and if these five requirements are satisfied then ok fine you can keep the toilet dirty until the train travels through the next station where you can clean it now it wouldn't make any sense at all for there to be a perpetual requirement that the toilet must always be clean and then to have an exception that applies only at the time when it is likely as the you'd be able to clean the toilet when it's being inspected when you're at a facility and for there to be no relief for the railroad whatsoever when the train is moving when there would be nothing that could be done to remedy the situation obligation only obligation you say i to within forty eight hours because you've got i mean it's a daily inspections so if you took the earliest point one day the latest point the other day that's all you have to do and even if you walk through it and you see th unsanitary you absolutely know that is no obligation to anyone that's right that's what the regulations say and it is a calendar day well that's what we try to figure out right well and in fairness what i'm referring to is the fact that in promulgating this regulation the federal railroad administration says with remarkable clarity what it is requiring a railroad to do when it's not require a railroad to do these are minimum servicing requirements and the potential liability that is imposed on a railroad that it's not ship well i'll be right after inspection that's what you're saying right because the subtitle of that of one thirty nine is servicing requirements and in the preamble the agency describes one thirty nine as providing the minimum servicing requirements to be completed at the time of the daily inspection so if we're looking at this from the mode of a statutory regulatory interpretation the first question is is there ambiguity in the regulation and the supreme court has made clear on many occasions that to determine whether or not a statute or regulation is ambiguous you have to look at it in context of the entire regulation here one thirty seven and one thirty nine w promulgated at the same time and we have the header of one thirty nine that explains that one thirty nine is providing only the servicing requirements our position is that it's impossible to read one thirty nine to mean that there is a perpetual obligation at all but at a very minimum  there is some ambiguity as to the timeline that is imposed by the cleanliness requirements of one thirty nine once you get into the universe in which there is any ambiguity we ask for seminal rock our deference as to what each and see said and you know there are some circumstances in which courts have been skeptical of granting our deference to a litigation position of an agency or something like that this would seem however to be the strongest possible case for deferring to an agenc interpretation of its own regulations this case strong as one possible the strongest possible case because the agency at the time it was promulgating this regulation explained what it meant and meant and explained the ambiguity of that we're confronting right  here and the agency has also continued to employ that exact same interpretation of the regulatory guidance that is issued since the problem of these particular rules we have any cases that all on this specific provisions here in terms of cases court and these are mentioned in the briefing there's a shit keris case that came up twice in this case was up on earlier appeal in each of those cases however the premise of the dispute was that the toilet was unsanitary in the questions revolved around proximate cause asian standard so the court has not no court to our knowledge has interpreted the time in question with respect to all roads obligations under one thirty seven one thirty nine the let the first time around i saying that the state of the toilet was unconnected to the ultimate injuries that the reason i ask you that you think this is the clearest case it can be made or found on this issue so my question was if it's that clear why was that raise a first time around it was we raised that as an alternative ground for a firm it's before this court the first time around the court however did not reach the issue didn't decide it we filed a motion for reconsideration saying basically we think this is a very very clear issue a very clear way to end this case and it doesn't seem as if the court has has reached it which you could be sensible in some sense because it hadn't been ruled on by the district court so we asked for reconsideration on that basis and reconsideration was cleanliness so our our position i assume and i don't want to get too far ahead of my skis here would be that because the regulatory language is clear that you wouldn't get to that point but in this case where you were somewhat differently situated in the agency's contemporaneous explanation coupled with the language of the statute the heading of the statute and frankly the the absurd outcomes that would result from a perpetual requirement as recognized by the district court here that would be so absurd i mean you've got these other requirements that you've got to keep floors clear of the bridge and oil and other kinds of hazards and so one has to look after that and this happens in life there are duties that we have and companies have and so forth and they go on every day if you violate them then there's a consequence why would be so absurd i think it would be absurd just as a function of human nature and given that the regulations are designed to balance ball the safety needs of workers and the practical needs of a railroad trying to transport goods to consumers creating an obligation that would effectively impose on railroads a choice between adding a staff member to permanently monitor the toilets or exposing itself to outsized liability that these outcomes would be inconsistent with the harm that is potentially being contemplated the harm that a worker who has been provided with with cleaning equipment himself and could could have called to have the train switched if he was uncomfortable or could have clean the toilet himself that his decision later not to use the toilet and then the happenstance that he fell off the train when he got i don't think by the way that the outcome would depend on who had made the toilet dirty to address a question that was opposed to my adversary that if if the railroad had an obligation to clean the toilet i never got dirty rock are our difference cases relying on preambles i can see cutting both ways but i don't know if i would say it's a good thing or a bad thing we would say it's a dispositive thing obviously and i think that the reason for that is that ordinarily you don't get into disputes about what the regulation means if the agency has already explained to you what the regulation means so it's not a topic on which you would expect to see all that many precedents are strongest argument here our lead argument i would say is that the interpretation being offered of one thirty nine and a is irreconcilable with one thirty seven c and one thirty seven those don't make any sense in an argument or two is that you can look at the subheading at the title of the statutory provision to understand what it means and interpret it what if what if he comes back and says well no the way this works is when thirty nine sets the general rule and see set some exceptions and might say the exceptions don't apply right we addressed that possibility in a footnote in our brief and as i was alluding to earlier didn't do me much good with the answer you know the answer is that that such an exception wouldn't make any sense it would be nonsense for an agency to create an exception that applies only in a circumstance where you need an exception the least why would the f r a have said that if a toilet gets dirty while the train is moving you're out of luck but if the toilet is dirty at the time when you're in a station and somebody is there inspecting it then we're going to create some special exceptions there so that doesn't make any sense and at a minimum that makes the relationship between one thirty nine and one thirty seven c and big us which in titles us to look to our i don't know i don't know about railroads i mean i'm i mean i can see the other side of it general rule exceptions you're not covered by the exception you're back with the general right and here we're in a circumstance where the app already has told us over and over again that the railroad has no obligation at all to clean a toilet the becomes dirty between the daily inspections and that because the clarity of that guidance coupled with the ordinary principles of statutory reckless or interpretation should in this case ok thanks very much for your argument we appreciate it mr still got a few minutes a rebuttal here thank you very much i would say that this not this timing issue but certainly the statutory issue has been dealt with in suzuki's twice in this case previously all of which hill flatly without any reference an unsanitary tool that is a violation of the locomotive inspection act i would also point you want to respond to the thing you just ended with we were talking about the relationship between one thirty nine and then thirty seven see and you know what you know he was making the point that the exceptions it's very strange to have those exceptions and then in a quite improbable setting where the trains moving here expose them to liability so what so makes some sense that a list look at one thirty nine c which is says that in the exceptions where the railroad can move the locomotives that are outlined in one thirty seven one thirty nine c specifically references one thirty nine s one thirty seven and recognizes it and says that when you have a railroad in one of the exception positions that is either a trailing position or one the exceptions outlined under one thirty seven that locomotive shall be sanitary and then we go to the rules as stated by the f c c regarding that specific statute regarding one thirty seven one thirty nine city this requirement addresses the units that might fall within the exceptions of one thirty carriers must not expose these employees to unsanitary conditions wow they are in the units therefore the toilet facilities may actually be defective while the unit is occupied but they me without reading anything nervy six point one thirty nine a says it all must be senator one thirty nine c recognizes that there are exceptions when you can use a locomotive under one thirty seven even if it is defective or unsanitary and not being lead directly but the comments on one thirty seven one thirty one thirty nine see state that does not re railroad of ensuring that the carriers must not expose these employees to unser energy conditions while they are on the units i see maybe you're answering it but i don't i don't feel like you're answering his point his point you know something that would help you is to say general rule is in one thirty nine a brick exceptions are in one thirty seven c he makes the point which makes some sense particularly by the preamble how strange to carve these exceptions but then leave the situation where it's oddest to impose liability still there well in it oh i really i'm not i know you're trying to answer that i think you're trying to answer that question i just want to make sure that's the question you're answering  are exceptions to when they were can move locomotives or move freight in certain conditions what one thirty seven c dealt with was ok if you found it to at the time of the daily inspection we're going to let you move the locomotive under certain conditions even if it is defective or unsanitary but that does not mean that we you have shifted the risk of injury to the employee under those circumstances in other words what makes no sense is a say ok road you can still move your loc motives and in and that's what's happened because you still have the negligence route i mean that's the thing that makes this all seem to fit together if it's negligence per se it makes some sense that they're going to be very careful about establishing sing when the railroad is automatically liable to go with this like causation standard but then you still have the back up of general negligence that that seems to fit pretty well together well we have two back ups we have the backup of general negatives and of the general requirements on the ally of keeping  princes in good shape well that makes it even more reasonable i don't know which we played both but that's that's a part of the case as well but we believe that as the statutory as it is written here just like with walkways just like with seats the walkways don't  preamble the way the toilets do that's true right now i don't believe they were doing that they didn't have working committees when that was passed all right let me just see are there any other questions ok thanks to both of you for your helpful briefs and oral arguments we appreciate it and thanks for helping us resolve the case the case will be submitted the court may call the next case