that bear on safety, including the condition of track and equipment, adequacy of training and testing of L&N operating personnel, L&N compliance with Federal safety regulations and its own rules, accident history, and the volume and character of hazardous materials moved." Apparently, only when completely satisfied on all these points will the FRA conclude that its February 7, 1979, Order should be lifted.
The Administrator applied these standards and in the PRO lifted the Order with respect to the segment of L&N's track between Nashville, Tennessee and Birmingham, Alabama. The FRA has also shown a willingness to permit some partial relaxation of the original Order's conditions such as the obligation to walk the tracks when L&N demonstrates that it has properly identified its track safety problems, but until all the other aforementioned conditions are met the most severe aspect of the Order the speed limit requirement remains in effect.
Whether or not an "emergency situation" existed on February 7, 1979, need not be considered. Perhaps the Administrator was initially justified by an emergency situation to enter the sweeping prohibitory Order of February 7, 1979, without a hearing and without having particularized the segments of trackage, if any, which the agency considered defective. Such conclusion is far from inevitably correct, however, given the comments of the majority of the Court of Appeals panel that reviewed this Court's denial on February 10 of L& N's request for a temporary restraining order. Louisville & Nashville R. R. Co. v. Sullivan, 199 U.S.App.D.C. 211, 617 F.2d 793, (1979), Vacated en banc (April 4, 1979). Moreover, properly conceived, the restrictions placed upon the L&N's use of its track might be viewed as if they "prohibit( )" the use of a facility. The Court need not, however, decide any of these issues, for the Administrator did not satisfy two further requirements of Section 432.
The first requirement arises from the nature of the Order under review here and derives both from the terms of Section 432 and the dictates of the Due Process Clause of the Fifth Amendment. This was that the FRA specify, in the initial Order itself or shortly thereafter, the precise corrective steps which the L&N had to take to eliminate the unsafe conditions in its trackage and thus to obtain relief from the Order. This the FRA did not do and still has not done. Second and relatedly, there is the fact that nothing in Section 432 authorizes the FRA to conduct a sweeping and open-ended review of L&N's management techniques, personnel policies, or overall "operating philosophy." But, such is the practical effect of the standards being used by the Administrator in deciding whether or not the Order should be lifted. Conditions of this sort are not only purely subjective but also are impermissible under the terms of the statute which speaks only of defects in a railroad's "equipment" or "facilities," not of deficiencies in a railroad's management, personnel philosophy, or general operational techniques.
Most emergency statutes, such as the one involved here, follow a familiar pattern. Congress recognizes that situations arise where the interests of safety require that prompt prohibitory action be taken without the benefit of hearings or elaborate findings. The interests of the public in these situations are paramount and therefore the relevant expert agencies are given the discretion and authority to take such immediate steps as are needed to bring the safety threat under control. Typically, such situations involve a discrete fault such as here a designated facility or piece of equipment which can be brought without too much hardship under a precise prohibition until corrected. Not surprisingly, Congress usually writes these emergency prohibitory powers broadly so as to safeguard the public in all such conceivable situations as may arise. See generally Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70 S. Ct. 870, 94 L. Ed. 1088 (1950); R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 47-48, 299 F.2d 127, 131-32, Cert. denied, 370 U.S. 911, 82 S. Ct. 1257, 8 L. Ed. 2d 404 (1962).
Due process concerns, however, cannot be disregarded, even in emergency situations. See generally Freedman, Summary Action by Administrative Agencies, 40 U.Chi.L.Rev. 1, 5-26 (1972). What the Constitution in this kind of case requires is that a hearing "be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965). Where a discrete, manageable, well-identified, specific safety hazard is involved, an immediate hearing following issuance of the emergency order will usually suffice. Such a hearing would have a clear focus, could usually be conducted within a short time frame, and itself would normally serve to demonstrate that the challenged condition has been remedied and that the order should be lifted. On the other hand, where the emergency order, as in this instance, (1) seeks to induce a comprehensive series of managerial and operational changes in order to meet an ill-defined and over-generalized emergency problem, and (2) does not, with sufficient precision, indicate the means by which the Railroad can get the directive lifted, the statutorily proscribed Ex post facto hearing fails to satisfy the requirements of due process. L&N is seriously affected by the Order. Its traffic is disrupted, its revenues diminished, and no relief appears to be in sight. Yet, because of the diffuse and over-broad nature of the Order, a long and unfocused hearing is what both parties now expect. In the meantime, the Order stays in effect and permits the Administrator, despite the passage of considerable time, to continue in his failure to identify what trackage he believes needs to be corrected and to continue to decline to inform L&N what specific action would establish that corrective action within the meaning of the statute had been taken. Given this combination of circumstances, the Fifth Amendment requires that the Administrator, in the Order itself or shortly thereafter, identify with particularity the kinds of corrective action which L&N can take to remedy the defects in its trackage. And, as noted before, the conditions which FRA can in this manner impose may not relate to defects in L&N's management, personnel or general operating policies, as opposed to defects in L&N's tracks. Since FRA has failed to satisfy these requirements, its Order cannot be permitted to stand.
In sum, the Court concludes that the February 7 Order, on its face and as administered, violates the requirement of Section 432 that the Order relate solely to a "facility or piece of equipment" being "in unsafe condition," the further requirement of Section 432 that the Order prohibit "the further use of (a) facility or equipment until the unsafe condition is corrected," and the dictates of the Fifth Amendment.
An emergency situation may well still exist. It should, however, be dealt with in far more concrete and specific terms. The Order exceeds the authority granted the Administrator under Section 432 and is hereby declared to be illegal. Nothing herein prohibits the immediate issuance of a properly drawn order, directed to any persisting emergency.
For the aforementioned reasons, L&N's motion for summary judgment is granted.
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