Amicus Curiae Brief — Melvin Ammons, et al., Petitioners v. Wisconsin Central, Ltd.

No. 19-1440

In The

Supreme Court of the United States

Melvin Ammons and Darrin Riley,

v.

Wisconsin Central, LTD.,

Petitioners,

Respondent.

On Petition for a Writ of Certiorari to the

Illinois Supreme Court

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

AND BRIEF AMICI CURIAE BY THE SHEET METAL, AIR,

RAIL TRANSPORTATION WORKERS-TRANSPORTATION

DIVISION, THE BROTHERHOOD OF LOCOMOTIVE

ENGINEERS AND TRAINMEN, AND THE ACADEMY OF

RAIL LABOR ATTORNEYS IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Joshua D. McInerney, BLET

Barkan Meizlish, LLP

250 E. Broad Street, 10th Floor

Columbus, Ohio 43215

(614) 221-4221

jmcinerney@barkanmeizlish.com

Christopher S. Peifer

Barkan Meizlish, LLP

250 E. Broad Street, 10th Floor

Columbus, Ohio 43215

(614) 221-4221

cpeifer@barkanmeizlish.com

Lawrence M. Mann

Counsel of Record

Alper & Mann, P.C.

9205 Redwood Avenue

Bethesda, MD 20817

(202) 298-9191

mann.larrym@gmail.com

Kevin Brodar, General Counsel

SMART-TD

24950 Country Club Blvd

North Olmstead, OH 44070

(216) 228-9400

kbrodar@smart-union.org

Counsel for amici curiae

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

1

6/11/08

12:44:0

MOTION FOR LEAVE TO FILE BRIEF AS

AMICI CURIAE IN SUPPORT OF

PETITIONERS

Pursuant to United States Supreme Court Rule

37.2(b), the Sheet Metal, Air, Rail Transportation

Workers-Transportation Division (“SMART-TD”), the

Brotherhood of Locomotive Engineers and Trainmen

(“BLET”), and the Academy of Rail Labor Attorneys

(“ARLA”) move this Court for leave to file an amici

curiae brief in support of Petitioners. The Petitioners,

through counsel, gave their consent. The Respondent,

Wisconsin Central, Ltd., after timely notice to its

counsel of the intention to file this brief, stated that it

would not consent.

The said amici represent an overwhelming majority

of railroad employees who will be directly impacted by

a decision of this Court whether to allow railroads to

seek property damages from their employees involved

in railroad accidents. We submit, as shown by the attached brief, that there are no other entities, and the

railroad workers who they represent, more directly

impacted by such a decision. SMART-TD and BLET

are collective bargaining representatives of locomotive engineers, conductors and other train service employees, and ARLA is an organization of trial attorneys that represent railroad employees in Federal

Employers’ Liability Act cases. The amici, because of

their representation of the interests of railroad employees and specifically the employees’ interests in

safe working conditions, are uniquely positioned to explain to the Court the importance of the present case

not only for Petitioners but also for all railroad employees and the industry.

For the above reasons, amici respectfully request

that this Court accept and file the attached brief amici curiae in support of Petitioners.

JoshuA d. McInerney, BLET

BArkAn Meizlish, LLP

250 E. Broad Street, 10th Floor

Columbus, Ohio 43215

(614) 221-4221

jmcinerney@barkanmeizlish.com

ChrisTopher S. Peifer

BArkAn Meizlish, LLP

250 E. Broad Street, 10th Floor

Columbus, Ohio 43215

(614) 221-4221

cpeifer@barkanmeizlish.com

LAWrence M. MAnn

Counsel of Record

Alper & MAnn, P.C.

9205 Redwood Avenue

Bethesda, MD 20817

(202) 298-9191

mann.larrym@gmail.com

Kevin BrodAr,

General Counsel

SMART-TD

24950 Country Club Blvd

North Olmstead, OH 44070

(216) 228-9400

kbrodar@smart-union.org

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES.............................

Page

iii

INTERESTS OF AMICI CURIAE....................

1

SUMMARY OF ARGUMENT..........................

2

ARGUMENT.....................................................

5

I.. TO ALLOW A RAILROAD TO

RECOVER PROPERTY DAMAGES

FROM EMPLOYEES AS THE RESULT

OF AN ACCIDENT WILL CREATE A

POTENTIAL CATASTROPHE IN THE

RAILROAD INDUSTRY BECAUSE OF

THE LIKELIHOOD THAT THE

EMPLOYEES WILL BE DISSUADED

FROM FILING FELA CLAIMS.................

5

II. TO ALLOW FOR PROPERTY DAMAGES

WOULD JEOPARDIZE SAFETY IN THE

RAILROAD INDUSTRY AND

DISCOURAGE ANY IMPROVEMENTS...

10

CONCLUSION..................................................

10

iii

TABLE OF AUTHORITIES

Page

Cases

Consolidated Rail Corporation v. Gottshall,

512 U.S. 532 (1994).......................................

4, 9

CSX Transportation, Inc. v. McBride,

564 U.S. 685 (2011).......................................

2

Duncan v. Thompson,

315 U.S. 1 (1942)...........................................

9

Jamison v. Encarnacion,

281 U.S. 635 (1930).......................................

4, 10

Kernan v. American Dredging Co.,

355 U.S. 426 (1958).......................................

9

Mondou v. New York, N.H. & H. R.R.,

223 U.S. 1 (1911)...........................................

4

Philadelphia, Baltimore & Washington R.R. Co.

v. Schubert, 224 U.S. 603, (1912)..................

9

Tiller v. Atlantic Coast Line RR Co.,

318 U.S. 54 (1943).........................................

10

Urie v. Thompson,

337 U.S. 163(1949)........................................

8

Statutes and Regulatory Authorities

45 U.S.C. §§ 51-60............................................. passim

Pub. L. No. 59-219 (1906).................................

3

Pub. L. No. 60-100 (1908).................................

4

Pub. L. No. 61-117 (1910).................................

3

iv

TABLE OF AUTHORITIES—Continued



Pub. L. No. 76-382 (1939).................................

Page

4

40 Cong. Rec. 4608 (1906).................................

3

42 Cong. Rec.1347 (1908)..................................

3

H. R. Rep. No. 2335, 59th Cong., 1st Sess.

(1906).............................................................

3

Other Authorities

William P. Murphy, Sidetracking the FELA:

The Railroads’ Property Damage Claims.

69 Minn. L. Rev. 349 (1985).........................

4

Positive Train Control (PTC) Overview and

Policy Issues, Congressional Research

Service (Sept. 4, 2018)..................................

7

Rail Safety: Freight Trains Are Getting

Longer, and Additional Information Is

Needed to Assess Their Impact,

U.S. Government Accountability Office,

GAO-19-443 (May 2019)...............................

7

1

No. 19-1440

In The

Supreme Court of the United States

Melvin Ammons And dArrin Riley, Petitioners,

v.

Wisconsin CenTrAl, LTD., Respondent.

On Petition for a Writ of Certiorari to the

Illinois Supreme Court

BRIEF OF AMICI CURIAE BY THE SHEET METAL, AIR,

RAIL TRANSPORTATION WORKERSTRANSPORTATION DIVISION, THE BROTHERHOOD

OF LOCOMOTIVE ENGINEERS AND TRAINMEN, AND

THE ACADEMY OF RAIL LABOR ATTORNEYS IN

SUPPORT OF PETITION FOR A WRIT OF CERTIORARI

INTERESTS OF AMICI CURIAE

The Sheetmetal, Air, Rail Transportation Workers

(“SMART-TD”) is the duly recognized collective bargaining representative under the Railway Labor Act

(“RLA”) for the craft or class of conductors and other

train service employees employed by freight, passenger and commuter rail carriers operating in the United

States. SMART represents more than 100,000 employees in the railroad industry.*1

The Brotherhood of Locomotive Engineers and

Trainmen (“BLET”) is the duly recognized collective

bargaining representative under the RLA for the

crafts or classes of locomotive engineers, conductors

* Pursuant to this Court’s Rule 37.2, amici curiae states that this

brief was not authored in whole or in part by counsel for any party,

and that no person or entity other than amicus curiae and its counsel

made a monetary contribution to the preparation or submission of

this brief. The Petitioners, through counsel, gave their consent. The

Respondent, Wisconsin Central, Ltd., after timely notice to its counsel of the intention to file this brief, stated that it would not consent.

2

and other train service employees employed by

freight, passenger and commuter rail carriers oper­

ating in the United States. BLET represents more

than 57,000 employees in the railroad industry.

The crafts or classes of employees represented by

SMART-TD and BLET comprise the crews who op­

erate trains in the United States and are among

those persons who are affected by this matter.

The Academy of Rail Labor Attorneys (“ARLA”) is a

professional association with members nationwide

who represent railroad employees and their families

in personal injury and wrongful death cases under the

Federal Employers’ Liability Act (“FELA” ). 45 U.S.C.

§§ 51-60. The members of ARLA represent an overwhelming majority of employees seeking recovery under

the FELA. ARLA’s primary purpose is the recovery of

damages for those railroad employees represented by its

members, and ancillary to that purpose, the promotion of

rail safety for railroad employees and the general public.

The vast majority of railroad employees impacted

by this case are represented by the amici. The interests common to the amici in this matter are the preservation of a statute that provides compensatory relief for a railroad worker’s injury or death and as such

an economic incentive for railroads to operate safely.

SUMMARY OF ARGUMENT

This case is of tremendous importance to the amici

and the railroad employees who they represent. This

is the most important railroad safety related certiorari petition considered by the Court since the petition

in CSX Transportation, Inc. v. McBride, 564 U.S. 685

(2011). No tactic by the railroads has more potential

for destroying employees’ rights—the exclusive reme-

3

dial recourse available to railroad employees—under

the Federal Employers’ Liability Act (“FELA” or the

“Act”) than allowing a railroad to seek property damages from an employee arising out of an accident.

The FELA prohibits a railroad from utilizing “any

device whatsoever” to exempt itself from liability. 45

U.S.C. §55. In enacting FELA in 1906, Congress intended to preclude common law evasions (e.g., modified contributory negligence defense and fellow servant rule) or the contracting-out of liability by the

railroads. FELA, Pub. L. No. 59-219, § 2, 34 Stat. 232

(1906) (reenacted in amended form and codified at 45

U.S.C. § 53 (1982)); 40 Cong. Rec. 4608 (1906) (discussion about shifting the burden to railroads with respect to common law defenses); and H. R. Rep. No.

2335, 59th Cong., 1st Sess. 5 (1906) (discussion with

respect to contracting-out of liability).

In revising FELA in 1908, Congress reinforced that

intended preclusion with the addition of the words,

“any device whatsoever,” and the explicit preclusion of

the contributory negligence defense in favor of the comparative negligence standard, among other common

law preclusions. Pub. L. No. 60-100, § 3, 35 Stat. 65, 66

(1908) (codified at 45 U.S.C. § 53 (1982)); 42 Cong.

Rec.1347 (1908). In its shifting of the cost of human

overhead of railroading from employees to their railroad employers in the 1908 FELA, and its amendments

in 1910 (liberal judicial jurisdiction provision) and 1939

(preclusion of assumption of risk defense), Congress’

“twin objectives of providing effective relief to railroad

workers injured or killed because of their employer’s

negligence and giving railroads an economic incentive

to improve the safety of this nation’s railroads” was

met. FELA, Pub. L. No. 61-117, sec. 1, § 6, 36 Stat. 291,

291 (1910) (codified at 45 U.S.C. § 56 (1982)); FELA,

4

Pub. L. No. 76-382, sec. 1, § 4, 53 Stat. 1404, 1404 (1939)

(codified at 45 U.S.C. § 54 (1982)); and William P. Murphy, Sidetracking the FELA: The Railroads’ Property

Damage Claims. 69 Minn. L. Rev. 349 (1985).

For more than a century, this Court has protected

the interests of railroad employees in FELA cases, consistent with the broad, remedial purposes of the statute. See, e.g., Mondou v. New York, N.H. & H. R.R.,

223 U.S. 1 (1911); Jamison v. Encarnacion, 281 U.S.

635 (1930); Consolidated Rail Corporation v. Gottshall,

512 U.S. 532 (1994); CSX Transportation, Inc., v.

McBride, supra. The decision of the Supreme Court of

Illinois, and the federal circuit court decisions on which

the Illinois decision relies, violate those purposes.

It is common knowledge that property damages in a

train accident can be an enormous cost, considering the

equipment and infrastructure involved. That the amount

of reportable property damages in railroad accidents is

likely to be into the millions of dollars—Respondent has

claimed the damages in the accident at issue were in

excess of one million dollars ($1,000,000)—a railroad

will not be able to recover its damages from its employees (Pet. Br. 13). The inescapable conclusion, then, is the

property damage claim is a pretext for the railroad to

grind an employee’s FELA claim into dust and to dissuade other employees from filing FELA claims and/or

to participate in the claims of other employees. That this

is the Respondent’s agenda is further indicted in its failure to file any claim, including a property damages claim,

against the dispatcher who negligently directed Petitioners’ and their train onto the track.

If this Court allows the Supreme Court of Illinois

decision, and associated federal circuit court decisions,

to remain standing, and the Respondent prevails on its

property damages claims, the more than likely re-

5

course for the Petitioners will be declare bankruptcy.

It was not the intention of Congress in enacting FELA,

with the inclusion of “any device whatsoever,” that by

the device of a claim for property damages, a railroad

may avoid financial liability for its negligence, collect

damages from an employee or drive an employee to

bankruptcy, and whether it be the collection of damages or employee bankruptcy, dissuade other employees from filing FELA claims. Further, that Congress

explicitly stated its intention that FELA was to persuade railroads to operate safely and improve safety, it

could not have been the intention of Congress that

railroads have a device to avoid that incentive.

ARGUMENT

I. TO ALLOW A RAILROAD TO RECOVER

PROPERTY DAMAGES FROM EMPLOYEES

AS THE RESULT OF AN ACCIDENT WILL

CREATE A POTENTIAL CATASTROPHE IN

THE RAILROAD INDUSTRY BECAUSE OF

THE LIKELIHOOD THAT THE

EMPLOYEES WILL BE DISSUADED FROM

FILING FELA CLAIMS.

The FELA prohibits a railroad from utilizing “any

device whatsoever” for the purpose or intent to prevent an employee from seeking redress under the Act.

supra. The attempt by Respondent in the present matter is such a device.

Potential property damages in a train accident can

be enormous. The Federal Railroad Administration

(“FRA”) publishes reportable damages in railroad accidents.1 In 2019, the 1,311 derailments on the nahttps://safetydata.fra.dot.gov/OfficeofSafety/publicsite/Query/

TrainAccidentDamage.aspx

1

6

tion’s railroads resulted in $237,591,324 in property

damage. Twelve rear end collisions resulted in

$5,595,535 in damages to property.2

Based upon FRA statistics, during the calendar

years 2016-2019, there were 7,320 railroad accidents,3

excluding grade crossing accidents. During the same

period, FRA reported 8,628 railroad-highway grade

crossing accidents.4 Derailments and collisions comSome specific examples are illustrative of damages in railroad accidents. On December 12, 2019, fifteen Canadian National Railroad cars, including 5 hazardous materials cars, derailed

in Detroit, MI, totaling property damage of $273, 194. (Accident

Report No. 1021157). On September 10, 2019, fourteen Union

Pacific Railroad cars derailed at Dupo, Illinois. (UP Railroad accident Report No. 0919MA023). Three tank cars carrying methyl

isobutyl ketone ruptured resulting in a large fire, resulting in

$606, 065 in property damages. On July 1, 2019, twenty-two cars

derailed at Elgin, NV on the Union Pacific Railroad, resulting in

property damage of $2,801,390. (UP Railroad Accident Report

No. 719RM012). Some examples in other years demonstrate the

extent of potential damage to property. A run away freight train

accident on July 6, 2013, in the town of Lac-Megantic, Quebec,

resulted in a fire and explosion of multiple tank cars. The train

originated in the U.S. ((https://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054r/es.html). More than 30 buildings were

destroyed and all but three of the remaining downtown buildings

had to be demolished. And 53 vehicles were destroyed. The estimated damage to the town exceeded $25 million. Multiple millions of dollars occurred to the train and tracks. On December 18,

2017, an Amtrak train derailed near Dupont, WA resulting in

$25.4 million property damage. Ten passenger cars derailed with

three falling upon an interstate highway hitting multiple cars.

The above represents just a few of the thousands of accidents occurring on the nation’s railroads annually.

2

https://safetydata.fra.dot.gov/OfficeofSafety/publicsite/Query/

TrainAccidentsFYCYWithRates.aspx

3

https://safetydata.fra.dot.gov/OfficeofSafety/publicsite/Query/

gxrtally1.aspx

4

7

prise the large majority of such accidents. Railroads

contend that the introduction of positive train control

technology (“PTC”) will reduce many accidents. However, PTC is only mandated for approximately 60

thousand miles of the 140,810 track miles in the country.5 Additionally, PTC does not protect against grade

crossing collisions, some rear end collisions between

trains, roll-outs, low speed collisions, broken rails,

wash-outs, or equipment left fouling the main track.

The physical forces involved in a railroad accident

are tremendous. Some freight trains exceed 3 miles in

length. See, Rail Safety: Freight Trains Are Getting

Longer, and Additional Information Is Needed to Assess Their Impact, U.S. Government Accountability

Office, GAO-19-443 (May 2019). Such trains weigh

more than 30,000 tons. The cost of an average freight

diesel locomotive is up to $2,000,000 and an electric

locomotive up to $6,000,000 6, a tank car can range up

to $250,0007, and a typical freight car costs between

$100,000 to $150,000.8 It has been estimated that

most freight trains having a length exceeding one mile

would have a value of more than $150,000,000 including the equipment and lading, weighing more than

18,000 tons.9 A freight locomotive weighs between

100 to 225 tons, and a typical freight car weighs approximately 30 tons and can carry lading up to an additional 130 tons. Id.

See, Positive Train Control(PTC) Overview and Policy Issues, Congressional Research Service, at 1,6 (Sept. 4, 2018).

5

6

https://worldwiderails.com/how-much-do-locomotives-cost/

7

https://www.ble-t.org/pr/news/headline.asp?id=7799

https://www.freightwaves.com/news/economics-of-railcarsare-complex

8

9

https://www.survivaltechshop.com/train-weight

8

The present accident resulted in substantial property damages, no different from the other collision related railroad accidents. The resultant damages according to the Respondent, totaled $1,500,000 (Pet.

Br. 13). In light of the enormous damages associated

with a railroad accident, if the Court was to allow

property damages claims, the likely result would be

that railroads will file property damages claims in every FELA matter whether there is a real possibility or

not of prevailing on the claim. In the short term, employees who venture FELA claims may prevail on

their claims and be made whole, if a railroad does not

prevail on its property damages claims. In other cases,

railroads will prevail, more than likely forcing employees to declare bankruptcy. This is precisely the

sort of “delusive remedy” countenanced against in the

Court’s decision in Urie v. Thompson, 337 U.S. 163,

168 (1949).

According to the U.S. Bureau of Labor Statistics, in

May 2019, prior to the COVID-19 pandemic, there

were 45,710 railroad conductors and yardmasters,

having a median wage of $65,990, with the top 10%

receiving $98,110. During the same period, there

were 35,520 locomotive engineers with a median salary of $67,090, with the top 10% receiving $101,060.

When compared to the enormity of reportable property damages in railroad accidents, the inescapable

conclusion is that employees will not be able pay property damages.

The long-term effect of allowing property damages

claims is more sobering. Railroad employees will be

witness to the plights of their co-workers, and will not

file a claim to seek recompense for life-altering injuries, or for that matter assist another employee with

their FELA claim, for fear of a railroad’s property dam-

9

ages claim. Employees would be forced to forgo the sole

remedy they have with respect to their injuries or the

remedy for their families in the event of their death.

Congress’ objective was that FELA be a remedial

statute for employees, not railroads. Consolidated

Rail Corporation v. Gottshall, supra, 512 U.S. at 542543 (Congress’ intention in enacting FELA was “humanitarian,” with “remedial goal[s],” in mind.) The

allowance for property damage claims is contrary to

the “any device whatsoever” provision of FELA and

the intent of Congress in enacting the statute. For

more than a century, this Court has protected the

interests of employees in FELA cases consistent with

the broad, remedial purposes of the statute. See,

Philadelphia, Baltimore & Washington R.R. Co. v.

Schubert, 224 U.S. 603, 614 (1912). This Court recognized “[t]he evident purpose of Congress was to enlarge the scope of section [5 of the FELA] and to make

it more comprehensive by a generic, rather than a

specific, description.” Id., at 611. In Duncan v.

Thompson, 315 U.S. 1 (1942), this Court reasoned

that because the plaintiff’s “straitened circumstances” made the probability of paying back the amount

“negligible,” and bringing a FELA claim “would be

taken away from him.” Id., at 7. In Kernan v. American Dredging Co., 355 U.S. 426, 432 (1958), this

Court recognized the remedial and humanitarian

purpose of the Act to be interpreted in protecting the

employee.

This Court, consistent with its precedent and the

intent of Congress that FELA be a remedial statute

for employees, not railroads, should grant certiorari in

this matter and clarify for state and federal courts the

common law claim of property damages is a device

prohibited under FELA.

10

II. TO ALLOW FOR PROPERTY DAMAGES

WOULD JEOPARDIZE SAFETY IN THE

RAILROAD INDUSTRY AND DISCOURAGE

ANY IMPROVEMENTS.

Congress’ purpose in enacting FELA was to shift the

cost of the “human overhead” of railroading from the

injured employees to their railroad employers. Tiller v.

Atlantic Coast Line RR Co., 318 U.S. 54, 58 (1943). By

doing so, Congress intended FELA “to stimulate carriers to greater diligence for the safety of their employees.” Jameson v. Encarnacion, supra, 281 U.S. at 640.

Allowing railroads to offset their FELA liability by

shifting these losses back to the employees through property damage claims frustrates that Congressional design

and jeopardizes the safety of the nation’s rail system.

CONCLUSION

The Court should grant the petition and restore the

balance that Congress created.

Respectfully Submitted,

JoshuA d. McInerney, BLET

250 E. Broad Street, 10th Floor

Columbus, Ohio 43215

(614) 221-4221

jmcinerney@barkanmeizlish.com

ChrisTopher S. Peifer

BArkAn Meizlish, LLP

250 E. Broad Street, 10th Floor

Columbus, Ohio 43215

(614) 221-4221

cpeifer@barkanmeizlish.com

LAWrence M. MAnn

Counsel of Record

Alper & MAnn, P.C.

9205 Redwood Avenue

Bethesda, MD 20817

(202) 298-9191

mann.larrym@gmail.com

Kevin BrodAr,

General Counsel

SMART-TD

24950 Country Club Blvd

North Olmstead, OH 44070

(216) 228-9400

kbrodar@smart-union.org