Before: Williams, Henderson, and Rogers, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitions for Review of Decisions of the Railroad Retirement Board
Opinion for the court filed by Circuit Judge Rogers.
The issue in these appeals is whether feeder railroads that are exempt from most of the requirements of the Interstate Commerce Act remain subject to the Railroad Retirement Act ("RRA") and the Railroad Unemployment Insurance Act ("RUIA"). Two feeder railroads, petitioners Cheney Railroad Company, Inc. and Tyson Railroad, Inc., challenge the decision of the Railroad Retirement Board that they were "employers" under the RRA and the RUIA and therefore subject to the requirements of those two statutes. Petitioners maintain that the term "employer" as used in the railroad employee benefit statutes is limited to entities subject to a portion of the Interstate Commerce Act from which they have properly exempted themselves. Because the language and history of the RRA and the RUIA demonstrate that feeder railroads are "employers" under these statutes, we deny the petitions for review.
In 1989, the Interstate Commerce Commission, acting pursuant to Section(s) 401 of the Staggers Rail Act, 49 U.S.C. Section(s) 10910 (1988), authorized Cheney Railroad Company, Inc. ("Cheney") to acquire approximately 53 miles of railroad line. Cheney R.R. Co., 5 I.C.C.2d 250, 276 (1989). In the same proceeding, the Commission authorized the predecessor of Tyson Railroad, Inc. ("Tyson") to acquire a much shorter segment of rail line. Id. *fn1 The Staggers Rail Act provides that the operators of such railroad lines "may elect to be exempt from any of the provisions of this title, except that such a[n operator] may not be exempt from the provisions of chapter 107 of this title with respect to transportation under a joint rate." 49 U.S.C. Section(s) 10910(g)(1). *fn2 The Commission honored petitioners' elections of this exemption. Cheney, 5 I.C.C.2d. at 262, 264, 277.
Cheney and Tyson requested determinations from the Board regarding whether they were "employers" under the RRA and the RUIA. They asserted, in effect, that their exercise of the Staggers Rail Act exemption from portions of title 49 also operated to exempt them from coverage of the RRA and the RUIA because the coverage of these statutes is predicated on the applicability of part of the Interstate Commerce Act ("ICA"), which was codified in subtitle IV of title 49. *fn3 On July 29, 1993, the Board denied their appeals from a decision on reconsideration of the Deputy General Counsel, thereby ruling that although Cheney and Tyson had properly invoked the Staggers Rail Act exemption, they were nevertheless "employers" under the RRA and the RUIA. *fn4 In affirming and adopting the reconsideration opinion of its Deputy General Counsel, the Board concluded that Congress intended the Staggers Rail Act exemption to be narrow and the remedial RRA and RUIA to encompass broadly all railroad carriers in the United States. The Board ruled that because Cheney and Tyson remained subject to the joint rate provisions of chapter 107 of title 49, they necessarily remained subject, at least in part, to the ICA, and therefore their employees were covered by the RRA and the RUIA. Cheney and Tyson seek review of the Board's decisions pursuant to 45 U.S.C. Section(s) 231g & 355(f).
Whether Cheney and Tyson are employers under the RRA and the RUIA present questions of law that turn on the interpretation of not only the RRA and the RUIA, but also the Staggers Rail Act and the ICA. Because the ICA and the Staggers Rail Act are not the Board's governing statutes, but rather are administered by the Commission, Society of Plastics Indus., Inc. v. ICC, 955 F.2d 722, 727 (D.C. Cir. 1992) (court's review of Commission's interpretation of ICA governed by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)); Black v. ICC, 762 F.2d 106, 114-15 (D.C. Cir. 1985) (same, Staggers Rail Act), we review de novo the Board's decisions that because petitioners are subject to provisions of the ICA, they are employers under the RRA and the RUIA. See Johnson v. United States R.R. Retirement Bd., 969 F.2d 1082, 1088-89 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1842 (1993); see also Department of Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988). *fn5
Throughout this case, the Board, its Deputy General Counsel, and the petitioners have disputed the definition of "employer" in the RRA and the RUIA based on their various analyses of the codified versions of the railroad employee benefit statutes. However, the language that Congress enacted in these statutes differs from that in the current version of the United States Code in a way that resolves the dispute. Moreover, the codified language is fully consistent with the statutes as enacted. Accordingly, we first turn ...