Earl Warren: Number 165 Max Lerner, Appellant, versus Hugh J. Casey, William G. Fullen, Harris J. Klein, et al. Mr. Boudin.
Leonard B. Boudin: Thank you. The Court pleases. This is an appeal from the Court of Appeals for the State of New York. The Court has that we serve the constitution on jurisdiction in the Court I would address myself with that issue after I've indicated the facts from the statute that is involved. The appellant, Max Lerner is a subway conductor in the City of New York. He's been a subway conductor for 21 years. He has civil service status and he's employed by a corporation created by the State of New York, a state corporation namely the New York City Transit Authority of which the appellees are the members to which I'll refer to as the authority or the appellee as the case maybe. It is, of course, relevant to know the kind of job that we are dealing with for various reasons that appeared to have had constitutional significance occasionally. And then I have to call the Court's attention to the record on page 6, a statement which is necessarily undisputed since this comes up on a motion to dismiss a petition, a record which says that his primary duty, reading at paragraph 10, at volume 10. His primary duty is consistent of opening and closing subway car doors to permit the entrance and exit of passengers together with certain routine duties incidental thereto. And for 21 years, Mr. Lerner pushed a button which opens the door when the train arrived at the station and pushed another button after the passengers were able to get on or off which closed the doors. Those are the duties of a person involved in this litigation. Now, Mr. Lerner, at the time that Mr. Lerner was dismissed by the New York City Transit Authority under the Security Risk Law, which I shall describe in detail or rather there were also in effect two statutes in the State of New York providing for the dismissal of civil service employees. One of the statutes was Section 22, the Civil Service Law which provided for the discharge for incompetency or misconduct. And the other statute was Section 12 (a) of the Civil Service Law which this Court notably advocates which provided for the discharge for membership of their organization to the proscribed character. But there is significance that with respect to 12 (a) as this Court noted in Adler. In fact, as a determining factor with respect to the constitutionality of the Feinberg Law that 12 (a) requires evidence to be produced against the person who was charged with membership in the proscribed organization, such membership on the 12 (a) to be -- take -- it takes evidence on the 12 (a) to be taken in open court with the witnesses available for cross-examination. Now, Mr. Lerner, my client was not discharged under 12 (a) and he was not discharged under Section 22, the Civil Service Law. He was discharged instead under the Security Risk Law of New York, a statute passed in 1951. That statute provides for the summary dismissal of people who were described as security risks and it was passed because of the Korean War and during the Korean War in 1951. It was passed as the preamble to the statute indicates as the Government's memorandum indicates as the statement of policy in Section 1 indicates, “in aid of the National Defense, the National Security.” And I may say that the Government's message indicates an aid of the foreign relations policy of the United States, a state law with those federal purposes. And the statute provides for collaboration with the Federal Bureau of Investigation who relies upon the Attorney General's listings and for the entrance actually of contracts for mutual operation in this so-called subversive area between the State of New York and the Federal Government. The statute provides that in certain jobs described as sensitive positions, security provisions or on certain agencies which are security agencies so to be designated by the Civil Service Commission of the State of New York, employees maybe summarily dismissed by a procedure which I will indicate but I should say first, at the definition of security agencies and security positions are as follows. They must relate -- the employee must be involved in functions relevant to the National Security, I'm paraphrasing, or he must have something to do with presidential information relevant to the National Security, a very high standard. Now, in --
Speaker: Do you -- do you attack the constitutionality of the New York Security (Voice Overlap)
Earl Warren: I do. I do as applied here.
Speaker: Now, the --
Earl Warren: As applied you mean.
Speaker: I beg your pardon?
Earl Warren: As applied?
Speaker: As applied to Mr. Lerner. I also attack it generally on the theory that there was no national emergency which would have justified a summary discharge of employees in the civil service at a time in 1954, when Mr. Lerner was discharged when there was no national emergency.
Speaker: Does it have to be, you say, (Inaudible) the times that you deal with national emergency --
Leonard B. Boudin: Yes.
Speaker: (Voice Overlap)
Speaker: And so it states in the preamble.
Speaker: And with security.
Leonard B. Boudin: And with security, with National Security. But I may say, Mr. Justice Harlan, that while I will address myself to that in the latter part of my argument, the facts of this case justified my relying upon the Slochower decision of this Court because of the fact that the inferences that we're drawing here were inferences of disloyalty or lack of security or being the security risk on the part of the Mr. Lerner and that because he invoked this privilege, a fact which I'll come to in a moment. Now, the Security Risk Law was not implemented during the Korean conflict, the alleged period of national emergency. Instead, it was not until 1953 to 1954, after the Korean conflict ended and after a similarity to Mr. Carroll's case, the Beilan after the House Committee on Un- American Activities came to New York that -- that the Civil Service Commission began naming one agency after another and one job after another as security agencies or security jobs. And it named literally 60 agencies in the City of New York and the State of New York, not federal agencies but city and state agencies as agencies or positions having something to do with national security. Hendricks beats my principal brief set forth a critical memorandum by a Committee of the Government of New York on that particular subject. The Transit Authority, the appellee here was named as a security agency by the Civil Service Commission without any hearing, without any notice to the appellants or to other employees. And obviously, without any reference to the kind of job that appellant had as a subway conductor. Now, the appellant was working in 1954, as he had for 21 years as a subway conductor until he received that an -- an instruction to appear before the Commissioner of Investigation of the City of New York. Your Honors, will recall my statement, my emphasis upon the fact that this is a state corporation, the Transit Authority, not a city corporation. However, the Commissioner of Investigation of the City of New York has very broad powers of investigation under the New York City Charter, Section 803. He may examine any one and any thing which may relate to the best interest of the city in his opinion. The best interest of the City of New York and it has been judicially held that he may even examine people who have never had any employment with the City of New York as Commissioner of Investigation. His powers are equivalent to those of a congressional committee or a grand jury. He can, as a matter of fact, as a witness review this to answer in the unlimited examinations that can held and that are held under Section 803 of the City Charter, 803 not 903, of course. He may go into court and he may ask the Court to hold the witness in contempt. And of course, Your Honors will recall the similarity to the Rogers situation if a witness were in this particular situation to answer questions about himself that the Commission of Investigation, he would find that he had waived his privilege and would have to answer questions about other people, A very different point, situation as I will indicate in a so that was to confront the employee who was asked by his employer to execute an affidavit with respect to himself Garner as an example. Now, Mr. Lerner, came before the Commission of Investigation on two occasions in September and October of 1954 and was asked whether he was then, or rather had been a member of the Communist Party. And he said, "I decline to answer on the ground of my constitutional privilege under the Fifth Amendment of the Constitution." Mr. Lerner was told by the Commission of Investigation on these two occasions taking them as one, the following, (a) We will not tell you whether there are any charges against you and this is not as employer to the Commissioner. (b) This is an investigation under the Security Risk Law of New York. (c) If you do not answer our questions, by the way he was put under oath, you will be discharged under Section 903 of the -- of the New York City Charter. Now, the Commissioner might have pardoned for errors of the law because this Court didn't hand down the Slochower case, until a year and a quarter later. But he couldn't be pardoned for his misconstruction of the Charter since Mr. Lerner was not an employee of the City of New York. Mr. Lerner stood on his privilege that when he went back to his employer, he received a letter from his employer which appears in the record and that that letter says as follows. “You appeared before the Commission of Investigation.” I'm referring now to page 8 -- page 10. “You appeared before the Commission of Investigation, and when asked whether or not you were a member of the Communist Party, you declined to answer and invoked the Fifth Amendment to the Constitution of the United States. Therefore, we regard this as evidence of unreliability under the Security Risk Law and you are suspended and given an opportunity to answer if you wish.” And was obviously no point in answering. The fact was not in dispute. That is the fact that he had stated his privilege before the Commissioner of Investigation. There were no other charges against him except the fact that he had stated the privilege, he didn't answer and the next response was a letter of discharge. And that letter of discharge is accompanied by a resolution on Page 14 of the record which is quite interesting. First, it incorporates by reference to the prior letter, his invocation of his constitutional privilege and concludes that he had given by the invocation of the privilege, evidence that he is a security risk under the Security Risk Law of New York. That is point one of our brief point two. Secondly, it adds and may I ask Your Honors to look at the bottom of page 14 of the record, further investigation has revealed activities. I emphasize the word activities on the part of Max Lerner which give reasonable ground for a belief that he is not a good security risk and he's been recommended that he'd be terminated and he was terminated. Now, we are arguing this case before Your Honors in 1958 and we have never yet been told what we've never seen in the evidence. We had never been told what those further activities are. We still do not know that he may have (Inaudible) to the further activities. Mr. Lerner, then instituted action in the State Supreme Court by petition. The petition appears at the opening pages of the record, pages 5 to 9 and that petition has fact which I have recited and which are not challenged before the motion to dismiss the petition, the privilege of a complaint was made in the court below. It was made in the lowest court. When we appeared in the lowest court of the State, Your Honors, will remember this is pre-Slocowher, pre-Slocowher. There was a candor on the part of the Transit Authority which was truly admirable. They admitted and they agreed which we have set forth in our reply brief here and it's stated that they discharged him because they drew from his invocation of the Fifth Amendment, the fact that he was a security risk right due the inference which Mr. Justice Harlan referred to in Footnote 9 of his dissenting opinion in Konigsberg. They do the inference with Mr. Justice Burton, said could not be drawn in the Slochower case from the mere section of privilege. They expressly said and at the page 5 of my brief, I have set it forth in my reply brief, the test established by the Security Risk Law has been met in this case, in the instant case. Surely it cannot be said that it's unreasonable to conclude that a man who refused to reply on the ground of possible of self-incrimination, when asked point blank about membership of the Communist Party, not a Political Party, but a subversive organization is a proper person to have in a security agency. And then if Your Honors, will turn to page 13 of my reply brief, you will see what the -- what they said there and oddly enough the italicized words at the bottom of page 15 of my reply brief, are their appellants in the court below because one of the italicized words, “on the ground that his answers might incriminate him.” In short, they drew the inference in 1954 which this Court in 1956 said could not be drawn for the invocation of the privilege. And indeed they draw the explicit inference which some of the dissenting members of this Court said could not be joined in the Slochower case because it wasn't clear, possibly, to some members of the Court what the inference withdrawn in the Slochower and was perfectly clear what was on here. Now, when this case therefore came to the State Supreme Court, Mr. Justice Brennan agreed that the inference could be drawn here as to unreliability under the statutes. He was much less concerned with the argument now made on appeal that is the Garner situation which I'll distinguish in the Court shortly. He said, “There is no dispute.” And I refer to page 18 of the record. There is no dispute that the petitioner asserted the constitutional privilege. That was a significant thing for the Court at special term. And he said later on at page 24 of the record with respect to our contention which he dismissed. He contends, talking about my client, at the assertion of his constitutional privilege, cannot be regarded as reasonable grounds for belief that he was of doubtful trust and reliability. I am of the opinion that the determination of that question rests solely with the authority since the statute vests actual discretion in the security agency to decide that issue, namely, whether the assertion of a privilege referred to by Mr. Justice Brennan is grounds for inferring unreliability. And he thereafter referred to Section 903 of the New York City Charter as yet unanalyzed by this Court. And he referred to Article 1, Section 6 of the -- of the New York State Constitution reading it erroneously as I'll indicate if the need there be, both dealing with the invocation of the privilege. So far therefore as Mr. Justice Brennan is concerned and the appellees were concerned, this was a discharge in which they concluded as an invocation of a privilege, not a failure to disclose to an employer. We'll discuss that in the afternoon. If invocation of the privilege show that he was an unreliable man, show that underneath it was something there which they can conclude actually existed. Shall I proceed?
Earl Warren: Until the red light.
Leonard B. Boudin: Right.
Earl Warren: You may proceed.
Leonard B. Boudin: Now, in addition to this Slochower case, I, of course, rely upon the Konigsberg case because in Konigsberg, this Court said that you could not draw up an inference of unreliability where a person refused to answer a question in this area, presumably in some other areas, relying in good faith upon a constitutional claim. That the Court was not dealing, as Mr. Justice Harlan pointed out in his footnote, was not dealing with the constitutional privilege. But certainly if the Court was -- if that is the law, as I trust it is, that the assertion of a First Amendment right and other rights is not a ground for inferring guilt so the same rule must apply to this situation.


William H. Rehnquist: We'll hear argument next in Number 94-1592, Brother... spectators are admonished to be quiet until you get outside the courtroom. The Court is still in session. We're going to hear argument next in Number 94-1592, Brotherhood of Locomotive Engineers v. The Atchison, Topeka, and the Santa Fe. Mr. Mann, you may proceed whenever you're ready.
Lawrence M. Mann: Mr. Chief Justice, and may it please the Court: The obvious question for you to ask me this morning is, if Congress intended for waiting time for deadhead transportation to be time on duty, why didn't it say so specifically? Well, the answer to that, at least in my mind, is very simple. We're dealing with a statute that first of all encompasses many train operations. Even the petitioners acknowledge that there are thousands of train operations daily. At the time of the '69 statute, there were 36,000 train operations each day, so--
William H. Rehnquist: What do you mean when you say train operations?
Lawrence M. Mann: --Meaning, a crew goes on duty and performs service for the railroad. That would be one train operation, Your Honor. And the other answer to that is, and I think it's the real guts of the case is, there was no need to specifically state that waiting time was time on duty because Congress treated that issue in several sections of the statute, and I refer the Court to section 21103(b), and I will talk about (1), (2), (3), (4), (5), and (6) subsections. And in each one of those subsections it's very clear that Congress was attempting... and I submit to you they did close the loopholes, and one basic problem is that railroad workers at that period of time were sitting on trains for hours on end waiting for a pickup crew or another train to come along and take them to their final release period, and it's... throughout the entire amendments the sole purpose was to close those loopholes, and they did it in several ways. First of all, you don't have to be working at all to be covered as time on duty under the act, because it's very clear... you know, I'm just a country boy, Your Honors, but English is English. It says, interim periods available for rest at a place--
William H. Rehnquist: Where are you reading from, Mr. Mann?
Lawrence M. Mann: --Excuse me, Your Honor.
William H. Rehnquist: And where will we find it?
Lawrence M. Mann: This is section 21103--
William H. Rehnquist: Page 2 of the petition?
Lawrence M. Mann: --In my brief, Your Honor, it is... yes, page 2 of the petition. Page 3, number (5), subsection (5), Your Honor, an interim period available for rest. Now, what the carriers and the Government is telling you is that this period of time should not be considered here. They want to write out and put conditions on each section, not giving it its broad and plain meaning. They--
David H. Souter: Well, are you reading out the word, interim?
Lawrence M. Mann: --The interim, Justice Souter, means interim between the time you go on duty and the time that you're finally released from duty.
David H. Souter: It doesn't mean interim as between two periods of active duty?
Lawrence M. Mann: It does not, Your Honor.
David H. Souter: Do we have a definition in the statute?
Lawrence M. Mann: Well, we have some legislative history. In the hearings, as well as in the Senate report, it talks about final release of all... finally released from all responsibilities. The proof of the pudding there is--
David H. Souter: I'm sorry, I'm just not getting it. I'm sure somewhere they use that phrase, but how are you connecting that with the meaning of the word?
Lawrence M. Mann: --Well, interim--
David H. Souter: Interim.
Lawrence M. Mann: --Interim means, as discussed in the House hearings and the industry spokesman, the Association of American Railroads, made that point clear, Your Honor, if I--
David H. Souter: Well, he may have done it, but is there a House or a Senate report that defines the term, or indicates--
Lawrence M. Mann: --It does not define the term. Congress--
Ruth Bader Ginsburg: --If I understand your argument correctly, your meaning would have been conveyed better if the word interim were left out, just a period available for rest.
Lawrence M. Mann: --Well--
Ruth Bader Ginsburg: What does interim add that helps rather than hurts your position?
Lawrence M. Mann: --It... I submit it doesn't hurt my position. It includes periods for operations.
Ruth Bader Ginsburg: But you would be stronger, your argument would be stronger, would it not, if the statute didn't say, interim?
Lawrence M. Mann: Somewhat, but I don't think it's definitive, because as the railroad... the chief railroad witness, and I think it's very critical, testified, and I refer to the House hearings at page 135, where Mr. Manion... Mr. Manion was the vice president of the Association of American Railroads, and he was talking about the problems of deadheading transportation and what would happen if the bill as was introduced were adopted, and after he discussed that part, he said, however, under another provision of H.R. 8449, which is the section dealing with interim periods for rest, section 1(b)(3)... now, that is exactly the same as what was passed, subsection (5), and I quote: Periods available for rest at other than a designated terminal will be included as time on duty. Consequently, if a crew reaches the hours-of-service limit in the country and is relieved there, it will still be on duty for purposes of hours-of-service purposes because it is not relieved at a designated terminal.
William H. Rehnquist: Who says this? Well, Mr. Mann, even for people devoted to legislative history, that's a fairly low level, isn't it, what a witness testified?
Lawrence M. Mann: Except, Your Honors, this was an industry spokesman, the Association of American Railroads, on a bill that only affected them, and what Congress was attempting to do is to close all these loopholes, and I submit to you, this statement as far as I am concerned--
William H. Rehnquist: Well, how do we know that Congress intended to "close all these loopholes"?
Lawrence M. Mann: --Well, the act solely--
William H. Rehnquist: It's not called the loopholes-closing act. [Laughter]
Lawrence M. Mann: --No, Your Honor. The act solely deals with placing in the act periods of time that not... that previously were not time on duty as being time on duty, with one exception, deadhead transportation to the final release point. Everything else that they did, the Congress made it time on duty to eliminate every abuse that was testified to in these hearings, and this is the industry spokesman. Now, you can look at the hearings, and I spent some time doing that, to see what all the rest of the witnesses stated from the industry.
Stephen G. Breyer: But is there something in there that talks about the definition of deadhead transportation?
Lawrence M. Mann: Yes, there is.
Stephen G. Breyer: Deadhead transportation, I would think sometimes when people are transported they include the time that they're sitting around in the station waiting room--
Lawrence M. Mann: Well, that's--
Stephen G. Breyer: --or the airport--
Lawrence M. Mann: --That's one of the issues.
Stephen G. Breyer: --and sometimes they don't, so it all seems quite ambiguous to me, anyway, and if it's ambiguous, shouldn't you leave this kind of interpretation to the agency?
Lawrence M. Mann: Well, two things, Justice Breyer. One is, of course, the industry, how they dealt with deadhead transportation, and here's how they define it... Mr. Manion again. Deadheading may be defined as travel performed by railroad employees at the direction of a railroad. Now, he was not the only railroad witness.
Stephen G. Breyer: But that doesn't do it, does it?
Lawrence M. Mann: Well--
Stephen G. Breyer: I say I'm traveling to Boston. I might or might not include in my travel time the time spent at the airport.
Lawrence M. Mann: --That's correct.
Stephen G. Breyer: All right. So is there something there that says, by the way, we don't mean time spent at the station, or spent at the airport, or sitting around waiting for the train to show up? Is there anything like that? I--
Lawrence M. Mann: There are three things. One is commingled service, which is defined in the statute as any other service for the carrier. You are part of the crew. You're not free to leave the premises except being under the control and subject to being called, and you're not finally released from duty until you get back at the terminal and do other ministerial duties.
Antonin Scalia: --Mr. Mann, is it your position that if you are deadheaded back to your final point of release, while you're waiting to get the first train, let's say to Omaha, that is on-duty time? What about... suppose you have to wait again in Omaha to get another train to New York City, where you're going to be released? What about that wait? Is that part of deadhead--
Lawrence M. Mann: All time... all time--
Antonin Scalia: --So you're not on duty while you go from Omaha to... where did... from wherever you're... wherever you end your work to Omaha, you're not on duty--
Lawrence M. Mann: --You are on duty.
Antonin Scalia: --While you're being transported?
Lawrence M. Mann: You're on duty. That's specifically in the statute. From the time you mark on duty, and that's subsection (4) of the--
Antonin Scalia: I thought deadheaded transportation back is not counted.
Lawrence M. Mann: --Deadheaded transportation back, at the end of your tour of duty, at the end of your tour--
Speaker: Okay--
Lawrence M. Mann: --of operations--
Antonin Scalia: --My tour has ended in San Francisco.
Lawrence M. Mann: --Okay.
Antonin Scalia: And I... they've arranged to get me back by putting me on a train to Omaha, all right. Now, you say while I'm waiting in San Francisco, I'm still on duty, all right. What about while I'm waiting in Omaha?
Lawrence M. Mann: It's all commingled service, and it's also time that is free for rest, and under the statute, that's on-duty time.
Antonin Scalia: And what about the transportation while I'm on the train between San Francisco and Omaha?
Lawrence M. Mann: That is not, because of the statutory provision. That's why Congress carved out this one exception. The only exception is that it will not be counted as time on duty, nor time off duty. That one period of actual movement, traveling in... traveling in is the key.
Antonin Scalia: Why is that magic? I don't understand that.
Lawrence M. Mann: Well, because--
Antonin Scalia: I mean, if... it makes no sense at all.
Lawrence M. Mann: --Well, maybe... maybe free at rest makes no sense at all, either, but it would create an anomaly. The anomaly would be this--
Antonin Scalia: You don't think it's an anomaly that I'm on duty while I'm at rest and back on duty whenever I start moving again?
Lawrence M. Mann: --Congress said so.
Antonin Scalia: And if I have eight stops along the way, I'm on-off, on-off.
Lawrence M. Mann: If Congress had not said that rest time was time on duty, I would agree with you, but Congress didn't say that.
Ruth Bader Ginsburg: Mr. Mann, what happens if I'm being transported back in a van and there's a breakdown, and it takes 3 hours to get that van fixed so it can move again to the place where I'll be released? We know that the time that you're in the van is deadhead time, and it's not on-duty time. What about when the car breaks down and I'm waiting to have it fixed?
Lawrence M. Mann: It's a good question, but I would submit to you that the way Congress envisioned this, I would argue to you that any time that you're not traveling, and it's very clear if you look at the statute and the meaning of the terms, if you're not traveling in the deadhead transportation, then it's either commingled service, you're performing other service--
Ruth Bader Ginsburg: No service. I'm waiting--
Lawrence M. Mann: --When you're waiting--
Ruth Bader Ginsburg: --for the van to be fixed.
Lawrence M. Mann: --that's rest time.
David H. Souter: Well, why isn't it on duty time, as it is in Justice Scalia's Omaha wait. Why is he on duty in Omaha but not on duty sitting on the side of the road?
Lawrence M. Mann: Congress said that an interim period available for rest is time on duty. You can be at rest completely--
David H. Souter: He's at rest on the side of the road.
Lawrence M. Mann: --Mm-hmm.
David H. Souter: So he's on duty, so the answer to Justice Ginsburg's question is, he's on duty.
Lawrence M. Mann: He doesn't have to be performing any duty. He can simply be doing nothing, just sitting there waiting, doing absolutely nothing--
David H. Souter: But it's treated as on-duty time.
Lawrence M. Mann: --Specifically.
Antonin Scalia: Yes. I assume you don't take the position that when the van stops for a red light he's back on duty, do you? [Laughter] Is it a... it's not an in-motion theory, not completely that, huh?
Lawrence M. Mann: Typically, the problem... we wouldn't be here if there hasn't been tremendous abuses. What we have as a typical situation, at the end of the 12 hours a crew is waiting and waiting and waiting. We have evidence in the record that up to 10 hours, sometimes, they have to wait for someone to come and get them--
Stephen G. Breyer: Can I go back... I'm... I--
Lawrence M. Mann: --Yes, Your Honor.
Stephen G. Breyer: --My question... and you just didn't have a chance to get out the other two things--
Lawrence M. Mann: Oh--
Stephen G. Breyer: --and what I was curious, remember, that this word deadhead transportation struck me, at least in the statute, as ambiguous, that of course deadhead transportation is limbo time, yes--
Lawrence M. Mann: --Yes.
Stephen G. Breyer: --but what is deadhead transportation, and my question was, what evidence is there that you could not... not that you... but you could not read those words, deadhead transportation, to include time in the station, time waiting to go on the train itself, as we do with airplanes and trains normally.
Lawrence M. Mann: If you're--
Stephen G. Breyer: And what is it in... and you listed three things. The first thing was, you said I should look at the commingled, the definition of commingled--
Lawrence M. Mann: --Commingling--
Stephen G. Breyer: --and you were going to mention two others.
Lawrence M. Mann: --That's correct. One is the rest period, interim period for rest--
Stephen G. Breyer: Where would I... where do I find--
Lawrence M. Mann: --That is--
Stephen G. Breyer: --You mean just in the statute here, or in--
Lawrence M. Mann: --In the statute.
Stephen G. Breyer: --All right. I've looked at that. It didn't seem--
Lawrence M. Mann: Oh... oh, I--
Speaker: --to me that it was clear.
Lawrence M. Mann: --Well, let me--
Stephen G. Breyer: One is the definition of commingled in the statute, the other is the definition of rest period, and what was the third?
Lawrence M. Mann: --The third is, what was Congress trying to do here?
Speaker: Okay, what?
Lawrence M. Mann: Congress was trying to eliminate the abuses, and this was one of the greatest abuses that the industry was accomplishing. They were leaving these crews out there an inordinate amount of time, and they're still doing it today.
Stephen G. Breyer: Well, if, in fact, it is an abuse, and if, in fact, the agency has significant delegated power to define deadhead transportation either way or partial ways, then couldn't you deal with that problem through the agency dealing with it?
Lawrence M. Mann: I don't think the agency, Justice Breyer, has the authority here. This is the one statute, the only safety statute on the books, in which the Federal Railroad Administration does not have regulatory authority. They enforce, but they have no regulatory authority. In fact, Congress took away the authority. In the old statute in 1908, the old statute, the Interstate Commerce Commission did have that jurisdiction.
Ruth Bader Ginsburg: But they can interpret.
Lawrence M. Mann: They can interpret, yes.
Ruth Bader Ginsburg: They can interpret, and they did.
Lawrence M. Mann: They did.
Ruth Bader Ginsburg: And they said, we think that two things go together. When you're going to the job, then the waiting time, everything, is on-duty time.
Lawrence M. Mann: Yes.
Ruth Bader Ginsburg: And when you're going from the job, then everything is this limbo thing. Why doesn't that just make entire sense as an interpretation?
Lawrence M. Mann: It does in one respect, but the other respect I can just say, the very opposite is true. Going to deadhead trans... deadhead to-duty assignment obviously includes the time you report to duty, and the time you are actually traveling, because the first subsection states very clearly that time on duty begins when you report for duty, so obviously, and I could argue that if that is time on duty from the point of reporting to duty and actually moving in transit, then the opposite situation coming back is the same.
Ruth Bader Ginsburg: But one thing is not the same. You can't get very far with your release point, because the statute tells us that the deadhead transportation time back, before the point at which you're released, that that time is limbo time.
Lawrence M. Mann: That's correct, but the statute also tells you that, unlike what the respondents are saying, it tells you that you are not... there's... the position of the respondents, simply put, is that the employee is off-duty, no further obligations, after the 12 hours is reached. That's just not the fact.
Antonin Scalia: Well, that's a factual question. We didn't take this case to figure out the fact of whether there are duties, and I at least am going to decide it on the assumption that there aren't. Now, if you can prove that there are duties in a particular case, it's a different case. But let's assume there are no duties, that the railroad worker is simply waiting to go back to where his rest time begins. Now, I can see why Congress would want deadhead time, including the time waiting for the deadhead transportation to arrive, I can understand why they would want that to count at the beginning of the work period, because by the end of the work period, the worker's going to be very tired. You should count that time against him, right? But at the end of the work period, what difference does it make?
Lawrence M. Mann: Well--
Antonin Scalia: He's not doing any more work for the railroad, his rest time for the mandatory period of rest he has to take doesn't begin... this is limbo time, right, it's not rest time.
Lawrence M. Mann: --Correct.
Antonin Scalia: So what... why would Congress want it to count towards work time?
Lawrence M. Mann: There are several--
Speaker: I can't understand it.
Lawrence M. Mann: --answers to that. Number 1, why would they want just rest time to be time on duty? Because there were abuses at that time, and there are still abuses. That's one reason.
David H. Souter: Yes, but that's going back to your claim that in fact they're really being required to do something. It seems to me that that answer is inconsistent with the--
Lawrence M. Mann: They're not required... Justice Souter, they're not required to do anything, and they're off... I mean, and they're on duty, specifically by the statute, and that was what the industry spokesmen were telling Congress at the time. Congress, if you adopt this, we can never let anyone off at an interim point.
Antonin Scalia: --Yes, but-- --When they have more duties later. That was addressing--
Lawrence M. Mann: They do. They still do.
Antonin Scalia: --the situation when they have more duties later, so that their total on the job, their total time on the job will be stretched, and by the end of the job, they'll be very tired.
Lawrence M. Mann: Justice Scalia--
Antonin Scalia: Here we're talking, by definition, about a situation where their job is done, and it's not going to be counted toward their rest time, and it's not going to make them more tired for any duties that they perform.
Lawrence M. Mann: --I respectfully differ with you because, as I've pointed out in my reply brief, the duties don't end. When you get at the end--
David H. Souter: You're going to win in front of the Seventh Circuit.
Lawrence M. Mann: --Sir.
David H. Souter: If that's true, then under the Seventh Circuit's opinion, you're going to win, ultimately.
Lawrence M. Mann: The Seventh Circuit did not consider anything but that one section of subsection (4), time spent in deadhead transportation.
David H. Souter: Yes.
Lawrence M. Mann: They did not look--
David H. Souter: If you can go back to the Seventh Circuit, or the district court under the Seventh Circuit opinion and say, aha, they have responsibilities, then you're going to win.
Lawrence M. Mann: --Well, I can only suggest--
David H. Souter: I mean, the whole point of our taking this case is not to decide whether you win or not--
Lawrence M. Mann: --Correct.
David H. Souter: --on that hypothesis.
Lawrence M. Mann: Correct, but I think it is significant in that it counters the argument of the respondents that all duties end at that 12-hours time, and it doesn't. I--
Ruth Bader Ginsburg: But your case... in answer to my question, you were candid, and I appreciated it. You said if the van breaks down so that they're not moving, that's limbo time, and it's clear that in that situation they have no trains to watch--
Lawrence M. Mann: --Correct.
Ruth Bader Ginsburg: --no safety hazards to report, they have nothing to do--
Lawrence M. Mann: Correct.
Ruth Bader Ginsburg: --except wait.
Lawrence M. Mann: And they are not free to go. They are part of the crew, still, until they finally mark off at the away-from-home terminal.
John Paul Stevens: May I ask you a question about the 1969 hearings, and you quoted Mr. Manion's statement, which I guess is the same one, at page 20 of your brief.
Lawrence M. Mann: Yes.
John Paul Stevens: And his references to 1(b)(3)(A) in the bill that was then pending, that's what finally was enacted as subsection (5), is that correct?
Lawrence M. Mann: That's correct.
John Paul Stevens: And am I correct in understanding that at that time the subsection (4) with the second clause in, at least, was not in the bill?
Lawrence M. Mann: The deadhead transportation?
John Paul Stevens: Yes. That was not yet in the bill, is that correct?
Lawrence M. Mann: Not in the... not as it was finally passed.
John Paul Stevens: And so it is fair to infer as part of your argument, I gather, that in paragraph (4) everything after the word, but, was enacted in response to the concern expressed by Mr. Manion on page 20 of your brief.
Lawrence M. Mann: It was... well, deadhead transportation in the originally drafted bill stated that all of the deadhead time was time on duty, so he was referring to both provisions, except when I read to you on page 135 of the House hearings, that only related to the subsection (5).
John Paul Stevens: Which was then subsection (3).
Lawrence M. Mann: Yes.
John Paul Stevens: And (4) was amended in response to this testimony, is your position.
Lawrence M. Mann: That's correct.
John Paul Stevens: And my question is, if you... and the question, then, is, what does the word deadhead transportation mean in that amendment, under your analysis? The question, does it include the time waiting for the transportation to begin?
Lawrence M. Mann: And let me address--
Speaker: Let me finish my question, please.
Lawrence M. Mann: --Oh, I'm sorry.
John Paul Stevens: And so that's what we're trying to decide, as I understand it. Now, if your view is correct that it does not include the period before they get on the bus, or whatever it is, how did that solve the problem he described on page 20 of the brief?
Lawrence M. Mann: It didn't solve that problem. They are still--
John Paul Stevens: Unless you construe it the way the Government does.
Lawrence M. Mann: --They're still on duty. Now, I want to point out, Justice Stevens, that another industry spokesman, a Mr. Hilt, who was the chairman of the National Railway Conference... this is the negotiating arm for the railroad industry. He was asked, what does deadhead mean? He said, on page 220 of the House hearing, deadheading is being transported from one point to another at carrier's orders without performing any service, and then, later in his testimony--
John Paul Stevens: But again, he's describing something before that's in the bill.
Lawrence M. Mann: --Yes, but later he was asked by Congressman Tiernan, in regards to defining deadhead, would you say to the committee that the definition covers the complete description of deadheading, and his answer was... he didn't fully answer. He said, deadheading is a widely used term, except management relationships is more or less the complete definition, and then Congressman Tiernan again pressed him. He said, you don't want to add anything to the definition you gave with regards to what deadheading is, and he said, I don't think so. So he is saying to Congress, it is only transportation in, and that's all it is, the transportation.
Antonin Scalia: Maybe he was wrong.
Lawrence M. Mann: But that's what Congress relied on.
John Paul Stevens: No, but you still haven't answered-- --You think... how do you know that?
Lawrence M. Mann: Well--
Antonin Scalia: You really think--
Lawrence M. Mann: --I really think--
Antonin Scalia: --Who do you think heard that testimony?
Lawrence M. Mann: --Who did?
Antonin Scalia: Do you think Congress heard that testimony?
Lawrence M. Mann: Well, it was their hearings.
Antonin Scalia: How many people do you think were present there?
Lawrence M. Mann: There were 30-some on that committee.
Antonin Scalia: Okay, so you think because 30 Members of Congress, if they were all present at the hearing, heard him say those words. You want us to assume that therefore the statute means what he said.
Lawrence M. Mann: It's what Congress--
Antonin Scalia: Does that seem reasonable to you?
Lawrence M. Mann: --I do, because this committee is the one that drafted the provisions, and they relied on what the witnesses told them, and it was part of that testimony--
Antonin Scalia: They didn't pass the statute. There are how many, 432 Members of Congress, 530, 532, something like that.
Lawrence M. Mann: --Yes.
Antonin Scalia: They passed the statute, not the 30--
Lawrence M. Mann: They passed it based on the representations of the chairman of the committee.
Speaker: --They did.
Lawrence M. Mann: Unanimously, I might add.
John Paul Stevens: But counsel, even if you confine yourself to the committee members... I understand what you're trying to say. You're not going to convince Justice Scalia on this, but you might convince me, so give it a try. [Laughter] How does the amendment... what I don't understand under your view, assume that all the committee members meant the amendment to solve the problem described there, as I read it, it does not solve the problem--
Lawrence M. Mann: It only--
John Paul Stevens: --because the time between they get off the crew and they wait for the bus could run out to several hours and still cause the very violation he's concerned about.
Lawrence M. Mann: --That's correct. Congress didn't buy that. That's the whole point I'm making. The only thing they bought from the railroad industry was, we're going to give you a break on deadheading--
Speaker: I see--
Lawrence M. Mann: --not time on duty.
Anthony M. Kennedy: --Why would they buy that little piece of the problem?
Lawrence M. Mann: Because--
Anthony M. Kennedy: Why would they say, we're going to fix this part but you're in trouble for the rest?
Lawrence M. Mann: --Because it's the abuses, Justice Souter. They had crews sitting out there hours on end, and they still do, and the problem is, maybe there's no immediate danger to safety because they're not... the crew's not going to operate this particular train any more, but it gets cumulative. Day-in, day-out, you're not knowing when you're going on duty, 8 hours later today, 6 hours earlier tomorrow, and it cumulates, and as I quoted--
Antonin Scalia: They have guaranteed rest period whenever they get back, and that is not shortened whether this limbo time... I mean, this limbo time doesn't go toward that.
Lawrence M. Mann: --It doesn't, but you have... and I submit that cumulative fatigue is a cause of serious safety problems, as stated by the National Transportation Safety Board, which I've quoted, as stated by the General Accounting Office as well--
David H. Souter: Do they get paid for the limbo time?
Lawrence M. Mann: --They do.
David H. Souter: So why do they mind?
Lawrence M. Mann: It's a safety problem. We're not talking about wages. We're talking about safety.
David H. Souter: They still have to have the off duty. They have to have the off-duty hours after the limbo time plus the transportation is over. They have to have the 10 off-duty hours anyway.
Lawrence M. Mann: That's correct.
David H. Souter: So why does it become... I mean--
Lawrence M. Mann: It's not an economic problem. That's the whole point.
David H. Souter: --No, no, but I mean, why is it a safety problem if when they get back they still have to have the 10 hours?
Lawrence M. Mann: Because day in and day out, that time is not regular, and it cumulates this fatigue, and I... when you have an opportunity to look at the... and even the reports of the Federal Railroad Administration point out to the... this problem in the railroad industry, and it is definitely a cause of accidents. Employee error causes about 30 percent of the rail accidents in this country, and a significant portion of those that were addressed by the National Transportation Safety Board involve fatigue, and both chairman of the board, as well as the vice chairman, going to Congress several times trying to get attention to this problem, and this is what Congress was trying to do, and that's why they didn't buy the amendment sought by the railroads.
David H. Souter: I guess the only difficulty I have with your response is, I mean, you're relying on legislative history for part of the answer, but when we get to drawing the distinction between the waiting time and the transportation time, and you're saying well, Congress bought that distinction, there's nothing in the legislative history which you were previously relying on that supports you.
Lawrence M. Mann: They didn't change the bill. The bill is exactly the same as what was complained of.
David H. Souter: But it seems... it just strikes me as odd that when they adopted, in effect, the compromise which are the... when they adopted the language following but, in what is now (4), it just strikes me as odd, if we're going to rely on legislative history, to find that there is no explanation of what you're telling us. Why might they not have said, well, we're going to add these words following but, and we're going to put them in (4), but that does not affect the question of how we're going to treat waiting time, because waiting time is subject to abuse. There's nothing in the legislative history record that addresses this.
Lawrence M. Mann: Maybe not specific words, waiting time, but they addressed it clearly in two ways. One is, which I've just mentioned, they did not change the wording at all from the introduced bill and that which was complained about by the industry. They didn't change it at all.
John Paul Stevens: But they added that part of subsection (4). Yes.
Lawrence M. Mann: That's correct.
John Paul Stevens: That's a change in response to... arguably is a change in response to the concern you've identified.
Lawrence M. Mann: Not on waiting time.
John Paul Stevens: Well, you think it isn't because it doesn't expressly say that. It's a question of, what did they mean by deadhead transportation?
Lawrence M. Mann: That's what--
John Paul Stevens: Did they intend to include waiting time, which would have solved the problem--
Lawrence M. Mann: --But that's--
Speaker: --if you read it that way.
Lawrence M. Mann: --They solved it by saying you can't get that relief that you want.
William H. Rehnquist: Thank you, Mr. Mann.
Lawrence M. Mann: Thank you, Your Honor.
William H. Rehnquist: Your time has expired. Mr. Stewart, we'll hear from you.
Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court: In the view of the Federal respondents, time spent waiting for the arrival of a deadhead vehicle at the conclusion of an employee's duty assignment is neither on nor off-duty time. That construction is consistent with the text of the pertinent statutory provision, and with the policies underlying the Hours of Service Act. As Justice Breyer was saying in one of his questions, if a person is asked, how much time did it take you to travel from Washington and Boston, the question is ambiguous. If the import of the question is, how big a chunk out of your day did the process of travel take, a person would normally answer it in a way that included associated waiting time. If the person were known to find air travel particularly uncomfortable or unpleasant, the person might naturally infer that the point of the question was, how much time were you placed in this uncomfortable position, and might answer it in a way that included only the time actually in the air. So to see whether waiting time should be counted as part of time spent in deadhead transportation, I think the inquiry should focus on, why did Congress define this as limbo time in the first place, and do the same concerns that caused Congress to define a category of limbo time apply with equal force to the waiting time at issue here, and for all purposes relevant to the Hours of Service Act, the time spent waiting for the deadhead vehicle is functionally indistinguishable from time actually riding in that vehicle.
David H. Souter: Well, what about the abuse argument? There's no... the railroads weren't engaging in abuses while they were transporting. They were engaging in abuses by being very unsystematic and uncaring about getting the... doing the transportation. I think that's his argument. What is your response to that?
Malcolm L. Stewart: Well, a couple of responses. I think first, as to what complaints of abuse were brought before the congressional committee that held the hearings, the union's complaints focused both on the waiting time and on the length of transportation itself. That is, there were statements to the effect that--
David H. Souter: They didn't draw any distinction, you're saying.
Malcolm L. Stewart: --No, and--
David H. Souter: So that the problem Congress had was a unified problem.
Malcolm L. Stewart: --That's correct, and the Senate committee report stated that part of the problem was that an employee... several hours of an employee's off-duty time might be time deadheading back from his duty assignment, so clearly... there's no evidence in the legislative history that Congress believed that the ride in the deadhead vehicle itself was typically short, but that the waiting periods were typically lengthy, so I don't believe that the legislative history provides a basis for distinguishing between the two. The reason that time spent in deadhead transportation is limbo time is that it shares some of the characteristics of both on and off-duty time. That is, the employee is not free to come and go as he pleases. The employee is unlikely to have a meaningful opportunity for rest, and therefore it would be inappropriate to count this as off-duty time and count it towards the minimum number of consecutive hours of rest that he has to--
John Paul Stevens: May I just get your view on one, kind of fundamental thing for me? Is it... do you agree that the second clause in subparagraph (4) was inserted in response to the concern expressed by the testimony of Mr. Manion?
Malcolm L. Stewart: --I don't know if I would say that Mr. Manion specifically, but yes, I think--
Speaker: Just generally.
Malcolm L. Stewart: --Yes. The original bill, the bill as originally introduced provided that time deadheading either to or from a duty assignment would be considered on-duty time, and this appears to reflect a... to define the deadheading from a duty assignment as limbo time appears to reflect a compromise that allayed the concerns of the railroads while ensuring that this would not be treated as off-duty time, thereby depriving the employee of an adequate opportunity for rest. So because the employee is not free to come and go as he pleases, and is unlikely to have a meaningful opportunity for rest, it would be inappropriate to consider this off-duty time. On the other hand, so long as the employee has no duties to perform, his fatigue can pose no danger to himself and others, or others, and therefore it would be inappropriate to treat this as on-duty time, and I think it's instructive to contrast this with the interim periods available for rest that Mr. Mann referred to. That is, the reason that the interim periods are defined as on-duty time is not that the employee poses a danger during those periods himself. That clearly wouldn't be the case if the employee is performing no services. Rather, the reason is that if these periods are not provided at a place where an employee actually has an adequate opportunity for rest, the employee is likely to be tireder at the end of that period than at the beginning, and therefore they need to be counted as on-duty time in order to ensure that he's not performing safety-sensitive tasks more than 12 hours after he initially reported for duty.
Anthony M. Kennedy: Do you know how many designated terminals an employee usually has?
Malcolm L. Stewart: Well, typically, I think my understanding is that typically there would be a home terminal and an away-from-home terminal. This is generally a subject of collective bargaining, and Mr. Johnson may have a more precise answer than I do, so that what is a designated terminal insofar as a particular employee is concerned is defined not by the act, but by the collective bargaining agreement.
Anthony M. Kennedy: But under your view, if the employee waits for deadhead transportation after his duty, when he's off duty, and then goes to a designated terminal which is available for rest under (5), but then he's also waiting for further transportation, I take it that this is on duty, because he has a place to rest, even though he's also waiting for further deadhead transportation.
Malcolm L. Stewart: I'm not sure if I understand the question, but our position is that after the employee has been released of the obligation to perform any duties, all of the waiting and the actual riding would be considered limbo time, and the statute speaks of--
Anthony M. Kennedy: No, but it's on-duty time once he gets to a place other than a designated terminal and it's available for rest, pursuant to (5), or is that not an interim period?
Malcolm L. Stewart: --That's not an interim period. The interim periods would be those that are preceded and followed by periods of service, and again, the reason for treating those periods differently is, if you're going to have to perform services when the period is over, we're concerned about whether you're going to be tired and pose a safety hazard at that time, but if your tour of duty is up, if you're simply in the process of getting from your duty assignment to the place that you'll get your 8 or 10 hours consecutive rest, that concern is not present.
Anthony M. Kennedy: I see. So interim is followed and preceded by on duty.
Malcolm L. Stewart: That's correct.
Antonin Scalia: Mr. Stewart, does the Government assert any entitlement to deference of its views in this case?
Malcolm L. Stewart: Yes, we do. This is... obviously, this litigation has taken a strange path in the sense that the Government is asserting a different reading of the statute than we asserted in the court of appeals, but the concerns that caused the FRA to shift its position, briefly, essentially are inapposite once the case comes before the Court. That is, in the Seventh Circuit the Government was asserting that the interest in Nation-wide uniformity was so great as to outweigh the interest in choosing the better of the two readings as between two that the FRA considered within the realm of reasonableness. Given that we're in this Court, and that whatever ruling this Court hands down obviously will have Nation-wide application, there's no need to balance any concern for uniformity against competing interests.
Antonin Scalia: What that would mean, of course, if we agree with you on the deference point, is that although we... if we were to find your interpretation reasonable, you could change the interpretation later. Even if we thought yours was the more reasonable you would still be able to go to the other one.
Malcolm L. Stewart: I think that's correct. It would depend to a certain degree on how the Court wrote the opinion. if the Court went out of its way to say not only is this a reasonable construction but it's in our view the only one that could plausibly be asserted--
Antonin Scalia: Now, the FRA does not have rule-making authority explicitly conferred, does it?
Malcolm L. Stewart: --No, that's correct, as to the Hours of Service Act.
Antonin Scalia: And there is a circuit conflict, is there not, on whether agencies that do not have rule-making authority are entitled to deference?
Malcolm L. Stewart: I think there is... there are... this Court has accorded--
Antonin Scalia: We've reserved the question, haven't we?
Malcolm L. Stewart: --Right.
Antonin Scalia: You don't want us to decide that in this case, do you?
Malcolm L. Stewart: I think because our... clearly, we believe our reading of the statute is the better of the two, and if the Court--
Ruth Bader Ginsburg: I think... do I understand you right to be saying that you're not talking about the Chevron kind of deference, because there's no delegated rule-making authority here, right?
Malcolm L. Stewart: --That's correct. The FRA is entrusted with the responsibility for assessing civil penalties, but it is not given substantive rule-making authority.
Ruth Bader Ginsburg: So you're talking about the Skidmore kind of deference where the agency, because it's been in the business, where the Court would look to the persuasiveness of its reasons that's kind of a-- --Is that what you were talking about? I was talking about Chevron deference. I would have to rephrase my question.
Malcolm L. Stewart: I under--
Antonin Scalia: You understood me to mean Chevron deference, didn't you?
Malcolm L. Stewart: --Yes, I did.
John Paul Stevens: Let me just throw this into the discussion. Which opinion, Judge Bauer's or Judge Easterbrook's, do you think better explains your position on deference?
Malcolm L. Stewart: Well, part of the problem with that is that in the--
John Paul Stevens: If you have an answer.
Malcolm L. Stewart: --I don't have an answer, because I think neither really goes to the question. That is, at this point, in the court of appeals the question of deference arose in the context of the FRA's argument that it's concern for Nation-wide uniformity was so great as to trump its view as to what was the better reading of the statute, and we... the FRA in the court of appeals asked that court to defer to the FRA's view regarding the importance of Nation-wide uniformity as opposed to the importance of getting the better of the two answers, so the two opinions were addressed to that sort of deference. Here, what we're talking about is deference regarding the FRA's view as to what is the more persuasive meaning of the statutory language, so the types of things that Judge Bauer and Judge Easterbrook were debating really are not particularly germane to this Court's resolution of the question.
John Paul Stevens: They're like ships passing in the night, I guess. Mr. Stewart is there anything in the record that indicates why the Government didn't appeal the Ninth Circuit and try to reconcile its views of the better interpretation with national uniformity that way?
Malcolm L. Stewart: There is nothing in the record. I think--
David H. Souter: I don't wish to go outside it. I just wondered whether there was anything in it.
Malcolm L. Stewart: --I would only remark that it was the first court of appeals ruling that had addressed the question, and it would be... there would be nothing in this Court's rules, obviously, that would preclude us from filing a cert petition or the Court from granting it, but it would not be consistent with the Court's normal practice.
David H. Souter: Well, why didn't you then... I mean, if you still persisted, I mean, why isn't the answer, that is, if you still persisted in thinking the other view the better one, why wouldn't it have been worth the Government's while at least to persist in one other circuit to get a conflict and get the thing up here?
Malcolm L. Stewart: Again, these go to questions of both litigation strategy and also the FRA's view as to the importance of uniformity as of a particular moment. Certainly a reasonable person could believe that that would have been the better course. Obviously, the reasonableness of that decision is not before the Court at this stage.
Ruth Bader Ginsburg: You do agree that, if there's any duty assigned, like watch the train to see that there's no vandalism, that that's full on-duty time.
Malcolm L. Stewart: That's correct. With respect to the vandalism point, I would like to distinguish between two types of instructions that an employee could be given. If the employee were told, watch for vandalism, be alert, be vigilant, that is clearly on-duty time. If the employee were told, you can do whatever you want, read, play cards, sleep, but if you happen to see vandalism you have an obligation to report it, we wouldn't regard the reading, sleeping, et cetera time as on-duty time, but if vandalism happened to catch the employee's eye, and he reported it pursuant to instructions, that act would be on duty.
Antonin Scalia: He could be given those instructions for rest time, too, I assume.
Malcolm L. Stewart: That's correct, and even if there were no identified contingency that would call the employee back into duty, these people are always in radio contact with supervisors. The possibility would always exist that a supervisor would give an instruction to the employee to do a particular thing, so whenever the employee is in this waiting period, there always exists the possibility of being recalled to duty whatever the instructions he was given at the outset of that period. The only other point I'd like to make is that I think our reading of the statute is buttressed by the other point at which time spent in deadhead transportation is used in the same section of the Hours of Service Act. That is, the act provides that time spent in deadhead transportation to a duty assignment is considered time on duty, and I feel quite certain that the union would state that time spent in deadhead transportation to a duty assignment includes any waiting period between the time that the employee reports and the time that the deadhead vehicle is actually ready to go. That's buttressed by the structure of the statute and by the legislative history, which the Senate report states that time spent in deadhead transportation to a duty assignment is to be calculated from the time an employee reports for duty, so this gives further confirmation of the fact that the waiting period is properly included within the phrase, time spent in deadhead transportation. Thank you.
William H. Rehnquist: Thank you, Mr. Stewart. Mr. Johnson, we'll hear from you.
Ronald M. Johnson: Mr. Chief Justice, may it please the Court: Before the Ninth Circuit ruling, there was... the statutory scheme was administered in a very straightforward, simple manner, predictable and certainty for the railroad in how to schedule crews and operate their trains. The very simple rule that the Hours of Service Act provided was that you could operate the crew up to 12 hours, but if you realized, if you saw that the train was not going to make its intended terminal, all you had to do to avoid a violation of the act was notify the crew to identify a place where they could pull over, park the train, and then they were relieved from all other duty. At that point, all they had to do was wait for transportation to arrive, which typically also brought the relief crew as well. The relief crew got on the train, took the train on to its terminal, then the expired or outlawed crew would be transported to its place of final release. Now, one thing I'd like to make clear right here is--
Antonin Scalia: What do you call them? You call them an outlawed crew? Is that the industry terminology?
Ronald M. Johnson: --There's a lot of industry jargon, Your Honor, and the crew is outlawed at that point in time. The crew sometimes sent out to pick it up was called the dog-catcher, to pick up the outlawed train. [Laughter] Now, one thing I'd like to point out here is a difference between us and the unions, one among many differences, is that they try and argue that under the statute the crew is on duty until it reaches its place of final release, which is the terminal that it didn't make, but that's not the way the statute works. The language is quite clear that on duty runs from the time you report for duty until you're finally released from duty, and you're finally released from duty under the statute when the railroad dispatcher advises the crew you're relieved from duty, don't do anything else. Now, I believe in response to a question from Justice Breyer was asked, are these crews paid while they're in limbo time, and the answer is yes, they are paid all throughout this time. They're paid while they're waiting for deadhead transportation. They're paid while they're in the deadhead transportation vehicle. They're paid until they get to their final terminal.
Sandra Day O'Connor: What about the period of time when the employee reports to go on duty, and is waiting for transportation to the duty station?
Ronald M. Johnson: Well, they're paid at that point in time, too, Justice O'Connor.
Sandra Day O'Connor: For the waiting period?
Ronald M. Johnson: Yes, and actually they're paid a little extra amount, because--
Sandra Day O'Connor: And are they considered on duty during the waiting period?
Ronald M. Johnson: --Yes, Your Honor. From the time they report to duty... I mean, typically there's a train... they try and schedule it so the train is there ready for them to get on board and go on, but if the train hasn't come in yet, that time period they're waiting to assume duty and that's counted as on-duty time. But to come back to the point I was going to make about the pay, all that happens at the place of final release, they don't have any more duties because they've been relieved from duty on the train, they have no duties while they're waiting for deadhead transportation, they have no duties while they're in the taxicab or the van, or another train, perhaps, but they're being paid, and when they get to the place of final release, all that is, is they clock out. That's all final release means. When they get to their terminal, they clock out. That stops the pay, and it starts their rest period, because the railroad has to know when the rest period begins so they can be called again. Now, there aren't any abuses here. I know the union attorney talks about abuses in the record, but there really is no record here other than what was put before the agency by the railroads, because the union did not put anything in the record other than the stuff they've attached to their briefs. But even if there were abuses here, the abuses were whatever they were related to deadhead transportation, and they've all been addressed by the fact that waiting for deadhead transportation and the deadhead transportation itself is not counted towards the rest period, and therefore, when they get to the end, when they get to the place of final release, they get their full rest period. Now, it's been very hard for the railroads to try and comply with this new interpretation, and that is why the railroads went to court. It is impossible to always predict, now... before, you could simply predict that when the train would be outlawed, you could just tell the crew to stop. You wouldn't violate the law. The only variable you had to have was to pick a place where they could pull the train aside off the main line onto a siding. Now, you have to try and predict not only where they're going to reach the 12-hour maximum, you have to also work in other variables. You have to call transportation, try to get transportation to meet a place before the 12 hours... it just can't be done.
Antonin Scalia: What penalties are there for violating... I mean, I can imagine you might have a snowstorm or something, and you can just stop the train, but if that unforeseen delay causes your crew to be on duty longer than you had expected, what would the penalties be?
Ronald M. Johnson: Well, the penalties, the minimum penalty to be imposed is $500 per violation. The maximum penalty is $20,000 per violation. The violation, each crew member is a violation, so if you have three members on the crew, that's three violations. That would be three times whatever the amount is. Now, the agency has discretion above $500 how much to impose. Currently, what they've been imposing is $1,000 per violation, so each of these crews typically has a crew of two or three people, it's $2,000 or $3,000 per violation. Now, the problem here is, it's impossible--
Antonin Scalia: Of course, they might make an exception for snowstorms. You know, even if we adopted the union's view of the matter, there... couldn't we count on the agency's discretion not to impose the penalty when indeed the reason the excessive time occurred was simply some unforeseen event such as a snowstorm?
Ronald M. Johnson: --Yes, Your Honor. They have that... I think it's a matter of prosecutorial discretion, and also there's a specific exception in the statute for emergency situation acts of God. But what's happening right now in the Ninth Circuit, because they still feel compelled to apply this interpretation of the Ninth Circuit, in the States within the Ninth Circuit, the railroads are continuing to be assessed violations for this waiting time. Even though the waiting time periods are as little as 5 minutes, we're still being faced with penalties right now. Now, I'd like to talk briefly about interim rest periods. It's clear that interim means you're between points of duty, and all that Congress was trying to get at when they put interim... when they defined what interim periods of rest were in the statute is, the case law before 1969 was all over the place. You know, some courts would say 2 hours works, some courts would say 3 hours works. All Congress did was codified that it has to be at least 4 hours, and it has to be at a certain place where accomodations are available for rest. Now--
Ruth Bader Ginsburg: May I ask to whom the penalties are paid for violations?
Ronald M. Johnson: --The penalties are paid to the United States Government. I assume they go into the Treasury, Your Honor. Now, the current interpretation that the union wants just makes no sense, because the crew has been relieve from all duties, has no duties, but yet they would have that crew continue to be counted as on duty even though they're not physically on the train, even though they have no further duties. It just doesn't make any sense. There's no safety problem here because the crew is not going to be allowed to operate a train again until after they've received their full rest period, and--
Antonin Scalia: Well, of course, I mean, you know, an argument can be made for the other side. The argument is... what is the rest period that's... what's the minimum rest period?
Ronald M. Johnson: --The minimum rest period is 8 hours. If they work right up to the maximum of 12 hours, it is 10 hours under the statute.
Antonin Scalia: Okay.
Ronald M. Johnson: Now, that rest period doesn't begin... what happens when they reach... you know, there's all this railroad industry jargon in the statute, but again, the place of final release simply means the building that they walk into when they clock out. That means they're going to begin their rest period, and what they do then is, if they're... I believe one of the justices asked how many terminals they have. They have the home terminal... the home terminal, of course, they live at their home, but when they get to their away-from-home terminal, the railroad has made arrangements... it's in the collective bargaining agreement. This is all treated in the collective bargaining agreements... has made arrangements for a hotel to go to and stuff, and that's where they get their rest.
Antonin Scalia: Okay, but doesn't this scheme of the statute show that Congress thought that an 8-hour rest period is needed for a... what, 10-hour normal work period?
Ronald M. Johnson: Yes, Your Honor.
Antonin Scalia: But a 10-hour rest period is needed for a 12-hour work period, is that right?
Ronald M. Johnson: Yes.
Antonin Scalia: So the law... you can't say there's just an absolute rest period which is going to be a balm for all ills, no matter how long you've been on... you know, working before then, and what the union is saying is look, realistically, traveling, deadheading back is... it takes it out of you, and if I should get 10 hours' rest for 12 hours' duty, I should also get 10 hours' rest for 10 hours of duty plus 2 hours of deadheading back, including the waiting time for the deadheading. I don't know that that's an unreasonable argument. I mean, the minimum time is a minimum time that has been calculated on the basis of what the maximum duty time was, and if that duty time is stretched out, maybe... you know, maybe the minimum time should be more.
Ronald M. Johnson: Your Honor, they have a way to get that, and the way they get that is expressly addressed in the statute, and that is through collective bargaining. Congress specifically says in section 2107 of the Hours of Service Act that these are minimums, and nothing is to stop the parties from sitting down and collectively bargaining longer rest periods, and--
Antonin Scalia: This is a safety issue, they say, and Congress... you know, Congress was concerned with safety.
Ronald M. Johnson: --That's true, Your Honor, and Congress, though, has made the judgment that safety is satisfied here. If we limit the crews to 12 hours on duty, if we make transportation time limbo time, and if we mandate a minimum rest period of 8 hours, Congress has made a judgment that that satisfies the safety concern, and if the parties want to go beyond that minimum they can and, in fact, they have, and some collective bargaining agreements provide that the minimum rest period is, in all instances is 10 hours rather than 8 hours. And the safety issue, though, here that the unions are complaining about is not the safety issue of waiting time, it's not the safety issue of how long the day is. You read their brief, and over and over and over again, the safety problem they're worried about is fatigue from irregular work hours, upsetting Circadian rhythms because crews are being called at all hours of the day and night to man trains, and that's true. That's the way the railroad business works. But that is not a safety issue that's addressed by this statute, because even if you counted waiting time as limbo time, that doesn't affect the fact that the crew, when it gets back and after it's had its rest, could be called again at any hour of the day or night to man that train.
Antonin Scalia: Indeed, it's purely fortuitous whether it helps that problem or hurts that problem. It could help it.
Ronald M. Johnson: That's correct, Your Honor, and again, the parties are meeting together in task force to address the safety issues that may result from these irregular work schedules, and Congress last year did add an amendment to the Hours of Service Act that encouraged the parties to work together to develop a solution, if there is a problem here, on irregular work hours. But there's not a safety problem here with treating waiting time as limbo time, and the Government made a reasonable choice in a somewhat ambiguous term whether to treat it... that's one difference we have with the Government. We believe there are only two options on how to treat this waiting time. It can either be treated as off-duty time or limbo time, and the Government made a reasonable choice to treat it as limbo time. That's the way this statute has operated for more than 20 years, and we believe that's the correct application of the statute.
John Paul Stevens: May I ask one very important question? The term dog-catcher refers to the crew that picks up the outlawed crew, or to the crew that substitutes for it?
Ronald M. Johnson: That picks... that refers to the crew that comes out from the terminal to pick up the train that got outlawed because it fell short of its final destination because the first crew outlawed--
John Paul Stevens: So they're the substitute crew.
Ronald M. Johnson: --They're the substitute crew, Your Honor.
Speaker: Thank you.
Ronald M. Johnson: I thank the Court.
William H. Rehnquist: Thank you, Mr. Johnson. The case is submitted.