United Transportation Union; Brotherhood of Locomotive Engineers, Plaintiffs - Appellees,association of American Railroads, Intervenor - Plaintiff - Appellee, v. Michael Foster, As Governor of the State of Louisiana; Richard Ieyoub, As Attorney General of the State of Louisiana and As Representatives of All Other Similarly Situated, Defendants - Appellants, 205 F.3d 851 (5th Cir. 2000)

This appeal raises the issue of whether federal law preempts three Louisiana railroad transportation laws. The district court answered this question in the affirmative and granted summary judgment in favor of the appellees, United Transportation Union (UTU)¹ , the Brotherhood of Locomotive Engineers (BLE)² , and the American Association of Railroads (AAR)³ . Louisiana's Governor and Attorney General (Appellants) appeal the district court's ruling. For reasons to be discussed, we affirm in part and remand to the district court for further proceedings consistent with this opinion.

On May 6, 1998, Louisiana's Governor signed the following three railroad transportation bills into law: 1) Senate Bill No. 26, enacted as Louisiana Revised Statute 32:661.2 (Act 81), which authorizes Louisiana law enforcement officers to administer post-collision toxicological testing of railroad crews involved in collisions at railroad crossings;⁴  2) Senate Bill No. 30, enacted as Louisiana Revised Statute 32:168 (Act 83), which requires theequipping of locomotives with audible signaling devices and requires train operators to use the devices at specified locations;⁵  and 3) Senate Bill No. 100, enacted as Louisiana Revised Statute 32:176 (Act 87), which requires railroad employees to inform state authorities as to whether a train involved in an accident at a railroad crossing possesses an event recorder.⁶ 

On August 17, 1998, BLE and UTU filed a lawsuit seeking pre-enforcement review of Louisiana's newly enacted railroad safety laws. Their complaint alleged the following claims: 1) federal law preempts Acts 81, 83, and 87; 2) Act 81 violates the Fourth Amendment because it allows a Louisiana law enforcement officer who lacks probable cause to administer post-collision toxicological testing to a railroad employee as part of a criminal investigation; and 3) all three acts create an undue burden on interstate commerce. On August 27, 1998, the AAR intervened in the present action. On October 26, 1998, the district court granted summary judgment in favor of the appellees, finding that federal law preempts all three acts, that Act 81 violates the Fourth Amendment, and that Act 83 creates an undue burden on interstate commerce. Based on these findings, the district court permanently enjoined the enforcement of Acts 81, 83 and 87.

No one has challenged the ripeness of this case for adjudication. However, we must consider possible objections to our Article III jurisdiction sua sponte. See Lang v. French, 154 F.3d 217, 222 (5th Cir. 1998). "Every federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S. Ct. 1003, 1013, 140 L. Ed. 2d 210 (1998) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 79 L. Ed. 338, 55 S. Ct. 162 (1934)).

Article III of the Constitution confines the federal courts to adjudicating actual "cases" and "controversies." U.S. Const. art. III, 2. In an attempt to give meaning to Article III's "case or controversy requirement", the courts have developed a series of principles termed "justiciability doctrines." One such doctrine that "clusters about Article III" is ripeness. Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166, 1178 (D.C. Cir. 1983) (Bork, J., concurring). Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for judicial review. See Abbott Lab. v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977).

In the present case, appellees bring suit under the Declaratory Judgment Act, 28 U.S.C. 2201⁷ , which provides the statutory mechanism for seeking pre-enforcement review of a statute. Declaratory judgments are typically sought before a completed "injury-in-fact" has occurred, see Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1298 (3d Cir. 1996), but still must be limited to the resolution of an "actual controversy." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 81 L. Ed. 617, 57 S. Ct. 461 (1937). In other words, despite the nature of appellees' action, we will not hear their pre-enforcement challenge unless their suit is ripe for review.⁸ 

In New Orleans Public Service, Inc. v. Council of New Orleans, 833 F.2d 583 (5th Cir. 1987), we set forth the prevailing standards for determining whether a dispute is ripe for adjudication. We stated:

A court should dismiss a case for lack of "ripeness" when the case is abstract or hypothetical. The key considerations are "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.

Id. at 586-87 (internal citations omitted).

Appellees allege that federal law preempts Act 81 because the Federal Railroad Administration (FRA) has completely subsumed the subject matter of alcohol and drug testing in the railroad industry.⁹  Appellees also allege that Act 81 offends the Fourth Amendment becauseit authorizes Louisiana law enforcement officers to administer post-collision toxicological testing to railroad employees as part of a criminal investigation even when the officers lack probable cause. For reasons to be discussed, appellees argument is entirely too speculative and hypothetical to establish the existence of an Article III "case or controversy." In short, we find that the appellees' pre-enforcement challenge to Act 81 is not ripe for review.

Appellees' challenge sits atop a mountain of conjecture and speculation. In order for Act 81 to run afoul of the Fourth Amendment, the following train of events would necessarily have to occur: First, a train must be involved in a collision at a Louisiana railroad crossing. Although the law of probability suggests such a collision may be inevitable, we cannot determine with any degree of certainty when such an event will occur. Indeed, the Louisiana legislature may amend Act 81's challenged terminology,¹⁰  or repeal Act 81 it in its entirety, before another locomotive collision at a railroad crossing in Louisiana. Second, even assuming that such a collision occurs, Act 81 does not operate automatically in the event of a collision. Rather, a law enforcement officer must have "reasonable grounds to believe the person to have been operating or in physical control of the locomotive engine while under the influence" of alcohol or other illegal controlled substances. Clearly, there will be many cases where an officer's suspicion does not rise to the level necessary to trigger Act 81's application. Third, "reasonable grounds to believe" would have to be interpreted to mean something other than "probable cause."¹¹  The appellees ask this court to interpret "reasonable grounds to believe" to mean "reasonable suspicion," a level of suspicion clearly below the "probable cause" generally needed to justify a search in a criminal investigation.¹²  Finally, a Louisiana officer would have to order such testing without actually having "probable cause."¹³  In light of the extreme prematurity of this action, we refuse to allow appellees' Fourth Amendment facial challenge to Act 81.¹⁴ 

We are particularly concerned about granting pre-enforcement review in this situation given the slight, if any, harm that appellees may suffer if we withhold review on ripeness grounds. First, assuming the previously outlined train of events actually occurs, Act 81 expressly allows railroad employees to refuse a law enforcement officer's request to undergo toxicological testing. See La. Rev. Stat. Ann. 32:661.2(D) (West 1999). If an employee refuses an officer's request, Act 81 merely authorizes the law enforcement officer to report this refusal to the Department of Transportation. See id. This potential hardship does not convince us that pre-enforcement review is appropriate in this case.

We find Act 83 ripe for judicial resolution. Act 83 imposes immediate obligations on the railroad, including potential equipment modifications and operating procedures. We also find Act 87 ripe for adjudication. Similar to Act 81, Act 87's requirements depend upon a future railroad collision. However, unlike Act 81, the only questions we need to decide are purely legal, and thus, are appropriate for judicial review. See New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583 (5th Cir. 1987).

The Supremacy Clause of Article VI of the United States Constitution provides Congress with the power to preempt state law. See U.S. Const. art VI, cl. 2. The Supreme Court has instructed federal courts that the historic police powers of the states are not to be superceded by federal law unless "that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947). In Louisiana Public Service Commission v. FCC, 476 U.S. 355, 90 L. Ed. 2d 369, 106 S. Ct. 1890 (1986), the Supreme Court detailed the circumstances when a finding of preemption is appropriate:

Preemption occurs when Congress, in enacting a federal statute, expresses a clear intent to preempt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the states to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Preemption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may preempt state regulation.

476 U.S. at 368-69 (citations omitted). In any case, "the critical question is whether Congress intended that federal regulations supersede state law." Id. at 369.

The Federal Railroad Safety Act (FRSA), 49 U.S.C. 20106 (formerly 45 U.S.C. 434), was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. 20101. In order to promote safety at railroad grade crossings, the FRSA provides that the Secretary of Transportation "as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing [existing] laws and regulations." 49 U.S.C. 20103. Congress expressly defined the preemptive scope of any promulgated regulations, stating:

Laws regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues anorder covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order, or standard related to railroad safety when the law, regulation, or order- (1) is necessary to eliminate or reduce an essentially local safety hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce.

49 U.S.C. 20106.

We have previously observed that "FRSA preemption is even more disfavored than preemption generally." Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 515 (5th Cir. 1999) (internal citations omitted).¹⁵  The restrictive terms of its preemption provision "indicate [] that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 123 L. Ed. 2d 387, 113 S. Ct. 1732 (1993) (emphasis added). When applying FRSA preemption, the Court eschews broad categories such as "railroad safety"," focusing instead on the specific subject matter contained in the federal regulation. See id. at 665-75. In sum, when deciding whether the FRSA preempts state laws designed to improve railroad safety, we interpret the relevant federal regulations narrowly to ensure that the careful balance that Congress has struck between state and federal regulatory authority is not improperly disrupted in favor of the federal government.

The Locomotive Boiler Inspection Act (LBIA), as amended, 49 U.S.C. 20701, et. seq., grants the United States the power to regulate all "parts and appurtenances" of railroad locomotives. The question of whether Congress intended the LBIA to preempt state regulation of railroad parts and appurtenances was addressed by the Supreme Court in Napier v. Atlantic Coast Line R.R. Co., 272 U.S. 605, 71 L. Ed. 432, 47 S. Ct. 207 (1926), which held that Congress intended the LBIA to "occupy the field" of locomotive equipment regulation. Id. at 613. At issue in Napier were state regulations prohibiting trains without cab curtains and fire-box doors from operating within the state. Although Congress had not promulgated regulations with regard to either device, the Court held that states were not free to do so themselves. See id. at 613. The Court found that the power delegated to Congress was a "general one" which extended to the "design, the construction and the material of every part of the locomotive and tender and of all appurtenances." Id. at 611. The Court rejected the argument that because the state regulations were intended to address a safety concern not addressed by existing federal regulations, the two regimes did not conflict. Id. at 612. As the Court concluded, state regulations regarding the equipment of locomotives are preempted "regardless of however commendable or however different their purpose." Id. at 613. In short, the LBIA completely preempts the field of locomotive equipment.¹⁶  See id.; see also Missouri Pac. R.R. Co. v. Railroad Comm'n of Tex., 833 F.2d 570, 576 n.7 (5th Cir. 1987) (observing that "state attempts to prescribe any locomotive safety equipment must necessarily fail."). It is against thisbackdrop of preemption that we address Appellants' claims.

Act 83, Part A, requires "every railroad company or person owning and operating a railroad in [Louisiana to] equip each locomotive engine¹⁷  with a bell and a whistle or horn which, under normal conditions, can be heard at a distance of not less than one quarter mile." La. Rev. Stat. Ann. 32:168 (West 1999). Because the LBIA completely preempts the field of locomotive equipment, Part A is clearly invalid. See Napier v. Atlantic Coast Line R.R. Co., 272 U.S. 605, 613, 71 L. Ed. 432, 47 S. Ct. 207 (1926); Missouri Pac. R.R. Co. v. Railroad Comm'n of Tex., 833 F.2d 570, 576 n.7 (5th Cir. 1987) ("State attempts to prescribe any locomotive safety equipment must necessarily fail."). Moreover, because the Secretary of Transportation has promulgated regulations covering the sound capacity of locomotive audible signaling devices, we find that the FRSA also preempts Act 83. Like the district court, we are not persuaded that Act 83 fits within the FRSA's exception for state regulations which address "local safety hazards."¹⁸  Thus, we affirm the district court's ruling that both the LBIA and FRSA preempt Act 83, Part A. We must next determine whether Part B of Act 83 survives this finding.

Under Louisiana law, when a portion of a statute is found to be invalid, a severability analysis is an essential element of judicial review. See Love v. Foster, 147 F.3d 383, 385 (5th Cir. 1998). Louisiana Revised Statute 24:175, which contains the state's general rule on severability, provides:

Unless otherwise specifically provided therein, the provisions of each act of the legislature are severable, whether or not a provision to that effect is included in the act. If any provision or item of an act, or an application thereof, is held invalid, such invalidity shall not affect other provisions, items, or applications of the act which can be given effect without the invalid provision, item, or application.

Id. The Louisiana Supreme Court has determined that "the test for severability is whether the unconstitutional portions of the law are so interrelated and connected with the constitutional portions that they cannot be separated without destroying the intention of the legislative body enacting the law." Police Ass'n of New Orleans v. City of New Orleans, 649 So. 2d 951, 965 (La. 1995). Stated simply, the first question is whether the legislature would have passed the statute without the invalid features.

We believe that the Louisiana legislature would have passed Part B without Part A's equipment requirements. Part B is a safety measure designed to signal the presence of an oncoming train so that collisions can be avoided. The Louisiana legislature would obviously want Part B to stand alone if Part A was found to be invalid. Simply put, the Louisiana legislature would have presumably wanted pedestrians or drivers alerted to the presence of an oncoming train, regardless of whether this was accomplished through the sounding of a horn, the ringing of a bell, or the firing of a rifle. Thus, having found Parts A and B severable under Louisiana law, we next determine whether the FRSA preempts Louisiana's signaling requirements.

As previously mentioned, regulations promulgated pursuant to the FRSA require all lead locomotives to be equippedwith audible warning devices with a specified minimum decibel level.¹⁹  See 49 C.F.R. 229.129. From this regulation and the fact that the High-Speed Rail Development Act directs the Secretary of Transportation to promulgate regulations governing the sounding of audible warning devices,²⁰  the Appellees argue that federal law preempts Act 83, Part B. In short, the Appellees invite us to hold that by issuing regulations covering audible warning equipment, the Secretary intended to bar states from regulating the manner in which such signals are sounded. We respectfully decline this invitation.

The FRSA speaks clearly to a state's authority to regulate railroad safety:

A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the state requirement.

49 U.S.C. 20106. Although the Secretary has issued regulations covering the sound capacity of audible signaling devices, we find that these regulations neither "cover" nor "substantially subsume" regulations governing when such devices are sounded.²¹  See Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 515 (5th Cir. 1999). Although our decision in Rushing addressed whether the FRSA preempts state common law nuisance claims, we find the reasoning equally applicable to the instant case:

A sound capacity safety regulation does not subsume regulations on when whistles are sounded. Although the state likely could not ban the sounding of whistles by banning them altogether, because it would defeat the purpose of the whistle capacity provision, it can impose restrictions on when they are sounded.

Id. at 516 (emphasis added) (internal citations omitted); see also Southern Pac. Transp. Co. v. Public Util. Comm'n of Or., 9 F.3d 807 (9th Cir. 1993) (distinguishing between whistle capacity and whistle use, and holding that federal regulations governing the former do not preempt the latter). Thus, we find that Act 83, Part B, is not preempted by federal law.

Having found that federal law does not preempt Act 83, Part B, we must determine whether Part B places an undue burden on interstate commerce. Instead of addressing this specific question, the district court focused on the combined effect of Part A and Part B on interstate commerce, finding that Act 83 would require railroads to stop at state boundaries and make equipment changes.

The parties never really addressed this issue until oral arguments, at which time they indicated that meeting Part B's requirements would require railroads to relocate their "whistle posts," i.e., the posts that advise the engineers when to sound their whistles.²²  At oral argument, appellees argued that this requirement would create an undue burden on interstate commerce. Appellants argue that Act 83 meets the test laid down by the Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970).²³  Appellants also argue that Act 83's effect on interstate commerce cannot be determined without additional fact-finding by the district court. We agree.

Unlike the district court, we are unable to determine on the basis of an empty record whether forcing railroads to comply with Part B alone would create an undue burden on interstate commerce. Because neither the parties nor the district court seem to have given this issue much thought, and because the record is devoid of any evidence that could help us decide this issue, we remand to the district court for a determination of this issue.

In the event of a railroad crossing collision involving a locomotive, Act 87 requires railroad employees to notify the law enforcement officer investigating the accident of the existence of an event recorder on the train. See La. Rev. Stat. Ann. 32:176 (West 1999). Upon request of the investigating law enforcement officer, the railroad is also directed to release any information contained on the event recorder to the extent allowed by federal law. See La. Rev. Stat. Ann. 32:176 (West 1999). For reasons to be discussed, we find that the district court correctly found that federal regulations preempt Act 87.

In 1994, Congress directed the Secretary of Transportation to promulgate regulations and issue orders to enhance safety by requiring that a train be equipped with an event recorder. See 49 U.S.C. 20137. Pursuant to this requirement, the FRA has promulgated regulations specifically covering the requirements for an event recorder. See 49 C.F.R. 229.5, 229.25, 229.135. Among other provisions, the regulations require that a railroad whose locomotive is involved in an accident shall preserve the recorded data for analysis by the FRA or National Transportation Safety Board (NTSB). See id. The regulations also provide, however, that information contained on the event recorders "shall not be utilized for analysis or any other purpose except by direction of the FRA or NTSB." See 49 C.F.R. 229.135(d) (1). We agree with the district court that the Secretary has issued regulations governing the use of information on event recorders that clearly preempt Act 87.²⁴ 

To summarize, we AFFIRM the district court's finding that federal law preempts Act 87 and Part A of Act 83, and REMAND for a determination of whether Part B of Act 83 creates an undue burden on interstate commerce. Finally, we find that the appellees' challenge to Act 81 is not ripe for judicial review.

AFFIRMED IN PART AND REMANDED.