Petitioners Brief — Bradley LeDure, Petitioner v. Union Pacific Railroad Company

Supreme Court briefJan 31, 2022

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No. 20-807

IN THE

Supreme Court of the United States

__________

BRADLEY LEDURE,

Petitioner,

UNION PACIFIC RAILROAD COMPANY,

Respondent.

__________

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

__________

BRIEF FOR PETITIONER

__________

NELSON G. WOLFF

JEROME J. SCHLICHTER

SCHLICHTER BOGARD &

DENTON, LLP

100 South Fourth Street

Suite 1200

St. Louis, Missouri 63102

(314) 621-6115

DAVID C. FREDERICK

Counsel of Record

BRADLEY E. OPPENHEIMER

MATTHEW J. WILKINS

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

Counsel for Petitioner

January 31, 2022

QUESTION PRESENTED

Whether a locomotive is in use on a railroad’s line

and subject to the Locomotive Inspection Act and its

safety regulations when its train makes a temporary

stop in a railyard as part of its unitary journey.

PARTIES TO THE PROCEEDINGS

Petitioner Bradley LeDure was the plaintiff in the

district court and the appellant in the court of appeals.

Respondent Union Pacific Railroad Company was

the defendant in the district court and the appellee in

the court of appeals.

iii

RELATED PROCEEDINGS

Petitioner is unaware of any other proceedings that

are directly related to this case.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

RELATED PROCEEDINGS...................................... iii

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

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 2

JURISDICTION.......................................................... 3

STATUTORY AND REGULATORY PROVISIONS INVOLVED ............................................... 3

STATEMENT .............................................................. 3

A. Legal Background ............................................ 3

B. Factual Background ......................................... 7

C. Proceedings Below ........................................... 8

SUMMARY OF ARGUMENT .................................... 9

ARGUMENT ............................................................. 12

I. A

LOCOMOTIVE

TEMPORARILY

STOPPED DURING ITS ASSIGNED

TRIP IS “USE[D]” OR “ALLOW[ED] TO

BE USED” WITHIN THE MEANING

OF THE ACTS ............................................... 12

A. Under The Statutory Text’s Plain

Meaning, Locomotives Temporarily

Stopped During Their Assigned Trips

That Are Set For Inclusion In Fully

Assembled Trains Are In “Use” Or

“Allow[ed] To Be Used” ............................. 12

B. More Than A Century Of Precedent

From This Court Confirms That OnRail Equipment Including A Temporarily Stopped Locomotive Remains

In “Use” ..................................................... 16

1. Brady v. Terminal Railroad Ass’n

of St. Louis ........................................... 16

2. Predecessor Cases ............................... 17

C. This Court’s Constructions Of “Use”

In Other Statutes Support Construing “Use” Here To Include Temporarily Stopped Locomotives ........................... 20

D. Under A Proper Construction Of The

Acts, LeDure Was Injured While

The Locomotive Was In “Use” Or

“Allow[ed] To Be Used” ............................. 22

II. THE COURT OF APPEALS’ AND

RESPONDENT’S REASONS FOR REJECTING THE ACTS’ PLAIN MEANING AND THIS COURT’S PRECEDENT

ARE UNPERSUASIVE .................................. 27

A. The Factors On Which The Court Of

Appeals Relied To Find UP5683 Not

In Use Are Insufficient ............................. 27

1. Stopping a vehicle does not mean

it has ceased being in “use” or

“allow[ed] to be used” .......................... 27

2. Taking the vehicle off the main

line does not withdraw it from use ...... 28

3. Taking (or leaving) the vehicle out

of a fully assembled train does not

withdraw it from use ........................... 30

4. Even viewed in combination, those

three factors are still insufficient

to show that a locomotive is not in

“use or allow[ed] to be used” ............... 31

B. The Remainder Of The Seventh

Circuit’s Reasoning Is Unpersuasive ....... 31

C. Respondent’s Additional Arguments

Are Unpersuasive ..................................... 33

1. The status of pre-departure inspections and preparations is irrelevant to the use analysis ...................... 34

2. The activity of the injured party

does not determine whether a

locomotive is in use or allowed to

be used ................................................. 35

3. Respondent’s proposed distinction

between locomotives and railcars

is unpersuasive .................................... 36

III. APPLYING THE ACTS TO STOPPED

LOCOMOTIVES ADVANCES CONGRESS’S SOUND POLICY JUDGMENTS AND REMEDIAL PURPOSES ....... 38

A. The Acts, With Their Longstanding

Remedial Construction, Have Significantly Improved Safety For Rail

Workers ..................................................... 38

B. A Majority Of Rail Worker Casualties

Occur On Stationary Equipment, And

Withdrawing That Equipment From

The Acts’ Scope Would Make Rail

Workers Significantly Less Safe .............. 40

vii

C. Allowing Railroads To Avoid Liability

By Leaving Noncompliant Vehicles

Stationary On Sidetracks Thwarts

The Acts’ Remedial Goals ......................... 41

CONCLUSION.......................................................... 43

ADDENDUM:

Statutes and Regulations Involved:

Federal Employers’ Liability Act, 45 U.S.C.

§ 51 et seq.:

45 U.S.C. § 51 ........................................... Add. 1

45 U.S.C. § 53 ........................................... Add. 2

45 U.S.C. § 54a ......................................... Add. 2

Safety Appliance Act, 49 U.S.C. § 20301

et seq.:

49 U.S.C. § 20301 ..................................... Add. 3

49 U.S.C. § 20302 ..................................... Add. 3

49 U.S.C. § 20303 ..................................... Add. 6

Locomotive Inspection Act, 49 U.S.C. § 20701

et seq.:

49 U.S.C. § 20701 ..................................... Add. 7

49 C.F.R. § 229.1............................................ Add. 7

49 C.F.R. § 229.21.......................................... Add. 7

49 C.F.R. § 229.23.......................................... Add. 9

49 C.F.R. § 229.25........................................ Add. 12

49 C.F.R. § 229.27........................................ Add. 14

49 C.F.R. § 229.29........................................ Add. 15

49 C.F.R. § 229.31........................................ Add. 18

viii

49 C.F.R. § 229.33........................................ Add. 20

49 C.F.R. § 229.119...................................... Add. 21

TABLE OF AUTHORITIES

Page

CASES

Astor v. Merritt, 111 U.S. 202 (1884) ............21, 25, 26

Bailey v. United States, 516 U.S. 137 (1995) ...... 14-15

Bates v. United States, 522 U.S. 23 (1997) .............. 29

Brady v. Terminal R.R. Ass’n of St. Louis,

303 U.S. 10 (1938) .............................10, 16, 17, 20,

24, 27, 29, 31,

32, 33, 34, 35, 37

Brotherhood of R.R. Trainmen v. Virginia ex rel.

Virginia State Bar, 377 U.S. 1 (1964) ................... 3

Chicago Great W.R.R. Co. v. Schendel, 267 U.S.

287 (1925) ......................................................19, 20,

24, 29, 30, 32

Consolidated Rail Corp. v. Gottshall, 512 U.S.

532 (1994) .............................................1, 35, 38, 42

Delk v. St. Louis & S.F. R.R. Co., 220 U.S. 580

(1911) .................................................17, 18, 24, 25,

28, 29, 30, 31, 34

Erlenbaugh v. United States, 409 U.S. 239

(1972) ................................................................... 12

Great N. Ry. Co. v. Otos, 239 U.S. 349 (1915)....18, 19,

24, 25, 30, 37

Johnson v. Southern Pac. Co., 196 U.S. 1 (1904) ... 4, 17,

24, 27, 29,

30, 31, 32, 37

Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481

(1943) ................................................. 12-13, 26, 27,

32, 34, 35, 37, 39

Louisville & N.R.R. Co. v. Layton, 243 U.S. 617

(1917) ................................................................... 35

Lyle v. Atchison T. & S.F. Ry. Co., 177 F.2d 221

(7th Cir. 1949).................................................31, 32

Napier v. Atlantic Coast Line R.R. Co., 272 U.S.

605 (1926) .............................................................. 6

New York Cent. R.R. Co. v. Winfield, 244 U.S.

147 (1917) .............................................................. 4

Romag Fasteners, Inc. v. Fossil, Inc., 140 S. Ct.

1492 (2020) .......................................................... 29

Smith v. United States, 508 U.S. 223 (1993) .......... 13,

20, 21, 25

Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33

(1916) .......................................................15, 19, 24,

26, 27, 36, 37, 40

Tiller v. Atlantic Coast Line R.R. Co., 318 U.S.

54 (1943) .............................................................. 38

Tipton v. Atchison, T. & S.F. Ry. Co., 298 U.S.

141 (1936) ............................................................ 13

United States v. Long, 905 F.2d 1572 (D.C. Cir.

1990)..................................................................... 21

Urie v. Thompson, 337 U.S. 163 (1949) ....4, 13, 32, 42

Virginia Uranium, Inc. v. Warren, 139 S. Ct.

1894 (2019) .......................................................... 43

Wilkerson v. McCarthy, 336 U.S. 53 (1949) ............. 38

STATUTES AND REGULATIONS

Act of Mar. 2, 1861, ch. 68, 12 Stat. 178 .............21, 26

§ 23, 12 Stat. 196 ................................................. 21

Act of Mar. 2, 1893, ch. 196, 27 Stat. 531 ............ 4, 15

§ 2, 27 Stat. 531 ............................................... 5, 28

§ 6, 27 Stat. 532 ..................................................... 5

Act of Mar. 2, 1903, ch. 976, 32 Stat. 943 .................. 4

Act of Apr. 14, 1910, ch. 160, 36 Stat. 298 ............. 4, 5

§ 4, 36 Stat. 299 ..................................................... 5

Act of Feb. 17, 1911, ch. 103, 36 Stat. 913 ................. 5

§ 2, 36 Stat. 913-14 .......................................... 5, 28

Act of Mar. 4, 1915, ch. 169, 38 Stat. 1192 ................ 5

§ 1, 38 Stat. 1192 ................................................... 5

Act of June 7, 1924, ch. 355, 43 Stat. 659 .................. 5

§ 1, 43 Stat. 659 ..................................................... 5

§ 2, 43 Stat. 659 ............................................5, 6, 28

Act of July 5, 1994, Pub. L. No. 103-272,

108 Stat. 745 .......................................................... 6

Department of Transportation Act, Pub. L. No.

89-670, 80 Stat. 931 (1966) ................................... 6

§ 6(e)(1)(E), 80 Stat. 939 ........................................ 6

§ 6(e)(1)(F), 80 Stat. 939 ........................................ 6

Federal Employers’ Liability Act, 45 U.S.C. § 51

et seq. ............................................................ passim

45 U.S.C. § 51 ........................................................ 4

45 U.S.C. §§ 53-54 ................................................. 4

xii

Locomotive Inspection Act, 49 U.S.C. § 20701

et seq. .............................................................. passim

49 U.S.C. §§ 20701-20703...................................... 6

49 U.S.C. § 20701 .............................1, 6, 12, 29, 33

49 U.S.C. § 20701(2) ........................................ 8, 34

Safety Appliance Act, 49 U.S.C. § 20301 et seq. .. passim

49 U.S.C. §§ 20301-20306...................................... 6

49 U.S.C. § 20301(a) ............................................ 15

49 U.S.C. § 20302(a) .................................12, 29, 33

49 U.S.C. § 20302(a)(1) .................................... 6, 12

49 U.S.C. § 20303(a) ............................................ 15

18 U.S.C. § 924(c)(1)(A) (1994) ................................. 21

28 U.S.C. § 1254(1) ..................................................... 3

49 U.S.C. § 103(g) ....................................................... 6

49 U.S.C. § 20101 ...................................................... 39

49 U.S.C. § 20103(a) ................................................. 39

49 C.F.R.:

§§ 229.21-229.33 ............................................. 42-43

§ 229.21 .................................................................. 8

§ 229.21(a) ............................................................ 34

§ 229.23(a) ............................................................ 43

§ 229.29(a) ............................................................ 43

§ 229.119(c) ...................................................... 6, 39

LEGISLATIVE MATERIALS

40 Cong. Rec. 4607 (1906) ........................................ 39

xiii

ADMINISTRATIVE MATERIALS

Office of the Historian, U.S. Dep’t of State,

Annual Message of the President (Dec. 3,

1889),

https://history.state.gov/historical

documents/frus1889/Message ............................... 3

U.S. Dep’t of Transp.:

Bur. of Transp. Statistics, Fatalities and

Injuries of On-Duty Railroad Employees,

https://www.bts.gov/content/fatalities-andinjuries-duty-railroad-employees ........................ 39

Fed. R.R. Admin., Casualties (Deaths and

Injuries) to Employees on Duty, https://

safetydata.fra.dot.gov/OfficeofSafety/public

site/Query/castally1.aspx ...............................40, 41

OTHER MATERIALS

Black’s Law Dictionary (6th ed. 1990) ................13, 14

Century Dictionary (1895) ........................................ 14

Century Dictionary (4th ed. 1904) .......................13, 14

Dino Drudi, Railroad-related work injury fatalities, Monthly Labor Review (Sept. 14, 2007),

https://www.bls.gov/opub/mlr/2007/07/

art2full.pdf ........................................................... 39

Webster’s A Dictionary of the English Language

(1892) ..............................................................13, 14

Webster’s Practical Dictionary (1910) .................13, 14

Webster’s Third New International Dictionary

(2002) ..............................................................13, 14

INTRODUCTION

Petitioner Bradley LeDure was injured when he

slipped on an oil slick while working on respondent

Union Pacific’s locomotive. The locomotive was part

of a train traveling from Chicago, Illinois, to Dexter,

Missouri, and had arrived at an intermediate stop in

Salem, Illinois, minutes before the incident. The locomotive was still powered on and idling, on an active

track, and set to depart for Dexter in under an hour.

LeDure brought a claim under the Federal Employers’ Liability Act (“FELA”), which Congress designed

to shift the “human overhead” of the railroad industry

from employees to railroads. Consolidated Rail Corp.

v. Gottshall, 512 U.S. 532, 542 (1994). Under FELA,

a railroad is negligent per se when it violates a safety

standard under the Locomotive Inspection Act

(“LIA”). One such standard is that the locomotive’s

surfaces must be free from oil or other slipping

hazards.

The LIA applies broadly to any locomotive that a

railroad “use[s] or allow[s] to be used . . . on its railroad line.” 49 U.S.C. § 20701. This plain language is

expansive. Congress did not limit the LIA’s coverage

to locomotives that are moving, engaged in hauling

trains, or performing any other specific function.

Instead, it selected language that would apply to any

“use” of a locomotive – including moving the locomotive to a destination when it is powered off. And,

even more broadly, Congress also specified that any

locomotive that a railroad “allow[s] to be used” – not

just one actively being used at a particular moment –

would be subject to LIA regulation.

An unbroken line of decisions from this Court

stretching back more than a century has recognized

the breadth of this language, both in the LIA itself and

in its identically phrased and interpreted companion

statute, the Safety Appliance Act (“SAA”). Those

cases hold that railcars remain in use under the LIA

and the SAA even when they are not moving or not

part of a fully assembled train. What matters is

whether the car was engaging in an essential part of

its approved undertaking. Such a car remains in use.

The court of appeals erroneously departed from the

statute’s plain text and this Court’s precedents. The

court relied on three principal factors to conclude that

respondent’s locomotive was not in use: it was stationary, on a sidetrack, and part of a train that was not

fully assembled. But those factors do not determine

whether a locomotive is in use: they appear nowhere

in the statute, and this Court expressly has held that

train cars remain in use even in the presence of these

three factors, both individually and in combination.

The LIA, SAA, and FELA are important and wideranging remedial statutes designed to safeguard the

health and lives of railroad workers. In accordance

with the statutes’ expansive text and purpose, this

Court consistently has interpreted them to cover

a broad range of activities that qualify as “use.”

Constraining “use” as respondent urges would

threaten the substantial progress in promoting rail

workers’ safety achieved since the historical period

before Congress enacted the Acts.

OPINIONS BELOW

The court of appeals’ opinion (App. 1-5) is reported

at 962 F.3d 907. The district court’s memorandum

and order granting respondent’s motion for summary

judgment (App. 7-21) is not reported (but is available

at 2019 WL 399924). The district court’s memorandum and order denying petitioner’s motion to alter or

amend the judgment (App. 23-28) is not reported (but

is available at 2019 WL 2176319).

JURISDICTION

The court of appeals entered its judgment on

June 17, 2020, and denied a petition for rehearing

on July 16, 2020 (App. 29-30). The petition for a writ

of certiorari was filed on December 10, 2020, and was

granted on December 15, 2021 (JA135). The jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Relevant provisions of the Federal Employers’

Liability Act, 45 U.S.C. § 51 et seq., the Locomotive

Inspection Act, 49 U.S.C. § 20701 et seq., the Safety

Appliance Act, 49 U.S.C. § 20301 et seq., and Chapter

229 of Title 49 of the Code of Federal Regulations are

reproduced in the Addendum to this brief.

STATEMENT

A. Legal Background

In the nineteenth century, the railroad industry was

among the most dangerous in the country, as this

Court has recognized: “[i]n 1888 the odds against a

railroad brakeman’s dying a natural death were

almost four to one,” and “the average life expectancy of

a switchman in 1893 was seven years.” Brotherhood

of R.R. Trainmen v. Virginia ex rel. Virginia State Bar,

377 U.S. 1, 3 (1964). In his first annual message to

Congress in 1889, President Benjamin Harrison urged

Congress to pass legislation requiring “the use of improved safety appliances” on trains, observing that the

dramatic rates of death and injury among railroad

workers “subjected [them] to a peril of life and limb as

great as that of a soldier in time of war.” Office of the

Historian, U.S. Dep’t of State, Annual Message of the

President 26 (Dec. 3, 1889), https://history.state.gov/

historicaldocuments/frus1889/Message.

Congress’s response was to enact a series of laws imposing greater safety requirements on railroads and a

federal cause of action for injured railroad workers.

Under the Federal Employers’ Liability Act

(“FELA”), Congress created a federal cause of action

for injured railroad workers against the railroads that

employ them. See 45 U.S.C. § 51 et seq. This cause

of action is an injured railroad worker’s only means

of recovering damages against his employer for

workplace injuries. See New York Cent. R.R. Co. v.

Winfield, 244 U.S. 147, 153-54 (1917).

A railroad worker suing under FELA must show

that his injury resulted from the railroad’s negligence.

See 45 U.S.C. § 51. This Court long has held that

a railroad’s violation of “ ‘any statute enacted for

the safety of employees’ ” is negligence per se under

FELA. Urie v. Thompson, 337 U.S. 163, 188-89 (1949)

(quoting 45 U.S.C. §§ 53-54).

Two such safety statutes are the Safety Appliance

Act (“SAA”) and the Locomotive Inspection Act (“LIA”;

together with the SAA, “the Acts”). Congress enacted

those laws in the late nineteenth and early twentieth

centuries “to obviate and reduce the loss of life and the

injuries” that plagued the railroad industry. Johnson

v. Southern Pac. Co., 196 U.S. 1, 19 (1904). The SAA

and the LIA “are substantively . . . amendments to

[FELA]” because proving that a violation of either

statute (or their associated regulations) resulted in a

railroad worker’s injury “is effective to show negligence as a matter of law.” Urie, 337 U.S. at 189.

The SAA came first. Congress enacted it as a series

of laws between 1893 and 1910. See Act of Mar. 2,

1893, ch. 196, 27 Stat. 531 (“1893 Act”), as amended

by Act of Mar. 2, 1903, ch. 976, 32 Stat. 943, as

supplemented by Act of Apr. 14, 1910, ch. 160, 36 Stat.

298 (“1910 Act”). These laws required railroads to

maintain specified safety equipment on railcars and

locomotives used on their lines. For example, Section

2 of the 1893 Act made it “unlawful” for a railroad “to

haul or permit to be hauled or used on its line any car

. . . not equipped with” automatic couplers. 27 Stat.

531. Section 6 established penalties against common

carriers “using any locomotive engine, running any

train, or hauling or permitting to be hauled or used”

noncompliant equipment. Id. at 532. The 1910 Act

simplified that language to penalize “using, hauling,

or permitting to be used or hauled” noncompliant

equipment. 1910 Act § 4, 36 Stat. 299.

In 1911, the same Congress that amended the

SAA enacted the first version of the LIA (then called

the Boiler Inspection Act) and borrowed the SAA’s

“use” language in doing so. The 1911 LIA made it

“unlawful” for a railroad “to use any locomotive engine

propelled by steam power in moving interstate or

foreign traffic unless the boiler” was “in proper condition and safe to operate.” Act of Feb. 17, 1911, ch. 103,

§ 2, 36 Stat. 913, 913-14 (“1911 Act”).

Congress amended the LIA in 1915 and 1924. The

1915 amendments extended the LIA to cover not only

the boiler but also “the entire locomotive and tender

and all parts and appurtenances thereof.” Act of Mar.

4, 1915, ch. 169, § 1, 38 Stat. 1192, 1192. Notably,

the 1924 amendments removed the requirement that

locomotives be “in moving interstate or foreign traffic.”

See Act of June 7, 1924, ch. 355, § 1, 43 Stat. 659, 659

(“1924 Act”). The 1924 amendments also rephrased

Section 2 of the LIA to say that a railroad may not “use

or permit to be used on its line any locomotive” that is

not “in proper condition and safe to operate,” more

closely tracking Section 2 of the 1910 SAA by adding

the “permit to be used” language. Id.

These early versions of the LIA authorized the

Interstate Commerce Commission “to prescribe the

rules and regulations by which” a locomotive’s “fitness

for service shall be determined.” Napier v. Atlantic

Coast Line R.R. Co., 272 U.S. 605, 612 (1926).

Congress later transferred that rulemaking authority

to the Secretary of Transportation, who acts through

the Federal Railroad Administration (“FRA”). See

Department of Transportation Act, Pub. L. No. 89-670,

§ 6(e)(1)(E), (F), 80 Stat. 931, 939 (1966); 49 U.S.C.

§ 103(g). The FRA since has promulgated regulations

requiring, among other things, that “[f ]loors of cabs,

passageways, and compartments shall be kept free

from oil . . . or any obstruction that creates a slipping

. . . hazard.” 49 C.F.R. § 229.119(c).

Congress continued amending the Acts until 1994,

when it repealed those and other statutes regulating

railroad transportation and partially recodified them

in Title 49. See Act of July 5, 1994, Pub. L. No. 103272, 108 Stat. 745; 49 U.S.C. §§ 20301-20306 (SAA as

recodified); id. §§ 20701-20703 (LIA as recodified).

Under the 1994 recodification, Congress replaced the

term “permit” with “allow” and standardized the

remaining language, such that both Acts now state in

parallel that a “railroad carrier may use or allow to be

used” on “its railroad lines” a locomotive “only” if the

locomotive meets the statutory safety requirements.

49 U.S.C. § 20302(a)(1); id. § 20701.

Thus, while the Acts have undergone many changes

over more than a century, one thing has remained

constant: these statutes apply only to locomotives

(and other rail vehicles) that are “used” or (at least

since 1924) “allowed to be used.” If a railroad is not

using a locomotive or allowing a locomotive to be used

(such as when the locomotive is in a dedicated repair

facility), then the Acts do not apply and they cannot

form the basis for a negligence per se claim under

FELA.

B. Factual Background

On August 12, 2016, locomotive UP5683 was part of

a train transporting freight from Chicago, Illinois, to

Dexter, Missouri. It arrived in Salem, Illinois, around

2:00 a.m. and was scheduled to depart around 3:00

a.m. with a new crew. That crew included LeDure,

a long-time locomotive engineer employed by Union

Pacific. JA80, 108-09. LeDure and his conductor were

to add and remove some cars from the train before

departing for Dexter.

The train had three diesel locomotives at the front,

the third being UP5683. JA29. Upon the train’s

arrival in Salem, all three locomotives were powered

on and idling on tracks Union Pacific owned

and controlled. JA25-27, 30. Union Pacific’s fuelconservation policy required LeDure to decide how

many locomotives the train needed for the rest of

the trip and to power down any that were not needed.

“LeDure decided that only one locomotive would be

powered on” for the remainder of the trip to Dexter.

App. 2. He then walked on the second locomotive and

UP5683 while they were idling to power them off and

leave a tag inside the cabs to identify them as such.

JA25-27, 30.

While walking on the powered-on and idling

UP5683, LeDure slipped and fell, striking his head,

back, and shoulders. JA29, 43, 48-49, 51, 53, 57;

JA67-68; JA69. He identified an oily substance

where he had slipped. JA32, 43. LeDure reported the

incident to his supervisor, and Union Pacific’s post-

incident inspection confirmed the presence of oil on

the platform. JA31; JA67-68; JA69; JA70; JA126-27,

129-30. LeDure’s doctors diagnosed him with spine,

shoulder, and head injuries; performed multiple

surgeries; and declared him permanently disabled

from railroad work. JA56; JA97-99.

At the time of the incident, UP5683 was on “an

active track.” JA91-92, 94; JA67-68. It was not in a

location dedicated to repair, maintenance, or service.

Union Pacific has a separate mechanical department

that services and repairs its locomotives when needed.

But that department had no facility at the Salem Rail

Yard; the closest facility was located about 1.5 hours

away. JA84; Dist. Ct. ECF #88-1, at 23-24. Engineers

like LeDure are not responsible for locomotive maintenance, repair, and servicing.

Federal regulations required Union Pacific to

conduct an inspection of UP5683 each calendar day

to, among other things, identify and remove slipping

hazards before assigning it to a crew. See 49 U.S.C.

§ 20701(2); 49 C.F.R. § 229.21. But UP5683 had not

been inspected for at least four days before the

incident. JA83, 87; JA133-34.

C. Proceedings Below

LeDure filed a complaint under FELA against

Union Pacific in the United States District Court

for the Southern District of Illinois. He asserted two

theories of liability: (1) a negligence per se theory

based on Union Pacific’s failure to comply with the

safety standards set forth in the LIA and associated

regulations, and (2) a general negligence theory.

Union Pacific moved for summary judgment on all

claims, and the district court granted the motion.

With regard to the LIA-based claim, the district court

concluded that UP5683 was not in use at the time

of the incident because it was not moving, was not on

the mainline, and was not part of a fully assembled

train. App. 14-15. It therefore held that the LIA and

its safety regulation prohibiting oil on locomotive

passageways did not apply to UP5683 at the time of

the incident and could not support a claim as a matter

of law. App. 15-17.

The court of appeals affirmed. It held that UP5683

was not in use because it “was stationary, on a sidetrack, and part of a train needing to be assembled

before” resuming its journey to Dexter. App. 4. And

because UP5683 was not, in the court of appeals’ view,

in use at the time of the incident, the LIA and its

safety regulations did not apply. Id.

SUMMARY OF ARGUMENT

Locomotives are “use[d] or allow[ed] to be used”

when they are part of or available to be deployed as

part of a train. Such “use” includes locomotives that

are stopped in a railyard mid-journey and preparing

to resume travel on the line to their assigned destination.

The Acts’ plain language and structure compel that

result. More than a century’s worth of precedent from

this Court confirms that the Acts apply to rail vehicles

in such circumstances. And advancing the Acts’ remedial and regulatory purposes requires applying those

statutes to vehicles – including stationary vehicles –

that a railroad includes or has available to include

as part of a train. The court of appeals’ contrary

judgment is erroneous and should be reversed.

I.A. The terms “use” and “allow to be used” are

expansive. Dictionaries from the time the Acts were

enacted define “use” as “put to a purpose” or “employ.”

Congress could have limited the Acts’ application to

cases where locomotives were being used in a specific

way, such as when “moving” or when “hauling” a train.

It did not do so. And “allow to be used” is even

broader; that phrase encompasses not just locomotives

that currently are being put to a purpose, but also

those that the railroad permits to be used or does not

prohibit from being used on its railroad line.

B. This Court’s past cases construing the SAA and

the LIA confirm their application on these facts. In

Brady v. Terminal Railroad Ass’n of St. Louis, 303

U.S. 10 (1938), the Court’s seminal (and most recent)

decision on the scope of “use” under the Acts, the

Court held that a railcar that was temporarily stopped

on a sidetrack, pending inspection, remained in use,

because it had not completed its journey and had not

reached a repair yard. Prior decisions reached similar

results: a dining car left on a sidetrack to be picked

up by another train remained in use because it had

not completed its roundtrip travel; defective cars that

needed to be removed from their trains remained in

use because they had not reached repair yards; and

stopped cars on sidetracks remained in use because

removing them from trains was incidental to their

overall use in transportation from an origin to a destination.

C. Decisions by this Court addressing similar

language in other statutes confirm the breadth of the

terms: someone can “use” a gun not only by firing it,

but also by trading it for drugs; clothing is “in actual

use” not only when it is being worn, but also when it

is in a wardrobe and available to be worn in the future.

D. Under a proper construction of the Acts, the

locomotive here was in “use or allow[ed] to be used”

at the time of LeDure’s injury. The locomotive was

temporarily stopped during its journey from Chicago

to Dexter, with a scheduled departure less than an

hour away; it remained on an active track; and it even

was powered on at the time of the incident. At no

point was it diverted to a repair yard, and it certainly

had not reached one; the closest one was about 80

miles away. These facts are consistent with the Acts’

broad language as well as this Court’s line of cases

holding that railcars remain in use under similar

circumstances.

II.A. The reasons the court of appeals and respondent offered for rejecting the foregoing construction of

the Acts are unpersuasive. The court of appeals relied

on three principal facts to support its holding: the

locomotive was stationary, it was on a sidetrack, and

its train was not fully assembled. But this Court has

considered each of those factors, individually and

collectively, and concluded that they do not suffice to

remove a vehicle from use.

B. The court of appeals also offered two other

unpersuasive explanations. First, it reasoned that

locomotives that are “service[d]” while “out of use” are

not “in use.” App. 4. This reasoning is circular, as it

assumes in the first step that the locomotive is not in

use. It also is incorrect as a factual matter, because

the locomotive here was not being “serviced.” That

term refers to maintenance or repair – a function

distinct from preparing for travel, and one beyond

the scope of LeDure’s job duties. Second, the court

of appeals opined that the LIA should be given a

“narrow” construction. But nothing in the LIA’s text

supports that reading, and this Court’s precedents

unambiguously reject it.

C. Respondent advances two additional factors

that supposedly inform whether a locomotive is in use:

whether pre-departure procedures and inspections

had been completed, and the specific activity that the

employee was performing at the time. But those factors also are inconsistent with the Acts’ text and the

Court has considered and rejected them. Respondent

also attempts to draw a distinction between locomotives and other railcars, but that distinction finds no

basis in the statutory text or this Court’s precedents.

III. The Acts serve a broad remedial purpose in

promoting railroad employee safety. They have been

successful in that goal, with railroad injuries and

fatalities significantly declining over time. Unduly

narrowing the Acts’ application threatens to reverse

that success and jeopardize workers whom Congress

specifically aimed to protect.

ARGUMENT

I. A LOCOMOTIVE TEMPORARILY STOPPED

DURING ITS ASSIGNED TRIP IS “USE[D]”

OR “ALLOW[ED] TO BE USED” WITHIN THE

MEANING OF THE ACTS

A. Under The Statutory Text’s Plain Meaning,

Locomotives Temporarily Stopped During

Their Assigned Trips That Are Set For

Inclusion In Fully Assembled Trains Are In

“Use” Or “Allow[ed] To Be Used”

Both the SAA and LIA state that a “railroad carrier

may use or allow to be used” on “its railroad lines” a

locomotive “only” if the locomotive meets the statutory

safety requirements. 49 U.S.C. § 20302(a)(1); id.

§ 20701. “[S]ettled principles of statutory construction” require giving “a consistent meaning” to words

and phrases across statutes that “pertain to the same

subject.” Erlenbaugh v. United States, 409 U.S. 239,

243 (1972). Here, both Acts contain the phrase “use

or allow to be used.” 49 U.S.C. §§ 20302(a), 20701.

And both Acts pertain to the same subject – railroad

safety. The Acts share a “prime purpose, the protection

of employees and others by requiring the use of safe

equipment.”

Lilly v. Grand Trunk W.R.R. Co.,

317 U.S. 481, 486 (1943). The Court even has said

that both Acts “are substantively . . . amendments to

[FELA] . . . , having the purpose and effect of facilitating employee recovery.” Urie v. Thompson, 337 U.S.

163, 189 (1949). Accordingly, the identical language

in both Acts must be construed identically. See Tipton

v. Atchison, T. & S.F. Ry. Co., 298 U.S. 141, 151 (1936)

(“the same principles apply in an action under the

[LIA] as in one under the [SAA]”).

Neither statute defines “use.” “When a word is not

defined by statute, we normally construe it in accord

with its ordinary or natural meaning” at the time of

enactment. Smith v. United States, 508 U.S. 223, 228

(1993).

When Congress enacted the first versions of the SAA

and the LIA in 1893 and 1911, respectively, leading

dictionaries defined “use” broadly as “[t]o make use of,

convert to one’s service, [or] put to a purpose.” Use,

Webster’s Practical Dictionary 481 (1910); accord Use,

Webster’s A Dictionary of the English Language 788

(1892) (“1. To make use of; to convert to one’s service;

to put to a purpose.”); Use, Century Dictionary 6674

(4th ed. 1904) (“To employ for the attainment of some

purpose or end . . . .”).1 That definition is expansive,

reaching scenarios in which a locomotive is “put to a

purpose” as a rail vehicle, including tasks incidental

to that intended function.

1 A substantially identical definition also applied in 1994,

when Congress recodified the Acts. See Use, Webster’s Third New

International Dictionary 2523-24 (2002) (“to put into action or

service”; “have recourse to or enjoyment of ”; “make instrumental

to an end or process”; “apply to advantage”); Use, Black’s Law

Dictionary 1541 (6th ed. 1990) (“To make use of; to convert to

one’s service; to employ; to avail oneself of; to utilize; to carry out

a purpose or action by means of ”).

The “allow to be used” clause is complementary

and, in certain applications, even more expansive.

Predecessors of that phrase (using the word “permit”

instead of “allow”) have appeared in certain sections

of the SAA since its original enactment and in the

LIA since 1924. Dictionaries at both times defined

“permit” as “[t]o suffer or allow to be, come to pass,

or take place, by tacit consent or by not prohibiting

or hindering; allow without expressly authorizing.”

Permit, Century Dictionary 4407 (4th ed. 1904); accord

Permit, Century Dictionary 4407 (1895) (same); Permit, Webster’s A Dictionary of the English Language

533 (1892) (“To grant express liberty to do; less

strictly, to put up with; to tolerate; to suffer.”); Permit,

Webster’s Practical Dictionary 293 (1910) (same).2

Thus, a railroad “permits” a locomotive to be used

when it allows, consents to, or does not prohibit the

locomotive’s use on its line. Taken together with

“use,” the Acts reach locomotives that are performing

their assigned task or are authorized and available to

perform the task for that or another railroad.

The statutory structure confirms that the transit of

a locomotive to a destination, even if the locomotive is

not engaged in hauling, qualifies as a “use” under the

Acts. See Bailey v. United States, 516 U.S. 137, 143

2 The 1994 recodification converted the language to “allow,”

but that simply means to “permit.” Allow, Webster’s Third New

International Dictionary 58 (“4. Permit”); Permit, Black’s Law

Dictionary 1140 (“To suffer, allow . . . .”) (emphasis added). And

the definition of “permit” has not meaningfully changed since the

SAA’s original enactment. See Permit, Webster’s Third New

International Dictionary 1683 (“to consent to expressly or

formally”; “grant leave for or the privilege of ”); Permit, Black’s

Law Dictionary 1140 (“To suffer, allow”; “to acquiesce, by failure

to prevent, or to expressly assent or agree to the doing of an act”)

(emphasis added).

(1995) (“ ‘Use’ draws meaning from its context, and

we will look not only to the word itself, but also to

the statute . . . , to determine the meaning Congress

intended.”). The SAA – which contains the same “use

or allow to be used” provision as the LIA – includes an

express, limited safe harbor for transporting defective

vehicles.3 Specifically, it provides that defective

equipment “may be moved when necessary to make

repairs, without a penalty being imposed,” to the nearest repair yard. 49 U.S.C. § 20303(a).4 This carveout

confirms that towing a powered-down and defective

locomotive to a destination (even when the destination

is a repair yard) is one form of “use” under the SAA

and the LIA. If it were not, then this carveout would

have been worded differently: Congress would have

provided that relocating a defective vehicle was not

“us[ing] or allow[ing] [the vehicle] to be used” in the

first place. Instead, by eliminating the penalty for

using a presumptively noncompliant vehicle during

transportation to a place of repair, Congress evinced

an intent that the rail vehicle was still being “used”

within the meaning of the Acts.

3 A “vehicle” is “a [train] car, locomotive, tender, or similar

vehicle.” 49 U.S.C. § 20301(a).

4 This safe harbor protects a railroad from statutory and regulatory penalties only. A railroad transporting a noncompliant

locomotive (or other rail vehicle) to a place of repair is still subject

to FELA’s negligence per se standard should the defect cause an

employee injury. See Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33,

43 (1916) (although the safe harbor “relieves the carrier from the

statutory penalties while a car is being hauled to the nearest

available point for repairs,” it does not “relieve a carrier from liability in a remedial action for the death or injury of an employee

caused by . . . a car with defective equipment”).

B. More Than A Century Of Precedent From

This Court Confirms That On-Rail Equipment Including A Temporarily Stopped

Locomotive Remains In “Use”

This Court confronted the question whether a given

railroad vehicle was “in use” many times during

the first decades after Congress enacted the Acts.

Consistent with the Acts’ clear text, those cases hold

that a locomotive or other rail vehicle temporarily

stopped in the middle of its journey is “use[d] or

allow[ed] to be used.”

1. Brady v. Terminal Railroad Ass’n of

St. Louis

The Court last directly addressed what constitutes

“use” under the Acts in Brady v. Terminal Railroad

Ass’n of St. Louis, 303 U.S. 10 (1938). There, a train

in the middle of its journey needed to switch onto

another railroad’s line. Id. at 11. The new railroad

had to inspect railcars in the train before receiving

them, so the train was “placed on a receiving track

temporarily pending” the inspection and “the continuance of transportation.” Id. at 13. If the inspection

found no defect, the train would continue to its

planned destination; if the inspection found a defect in

any car, though, that car would be “subject to removal

for repairs.” Id. During the inspection, the inspector

fell when a grab iron he was holding became loose. Id.

at 12.

The Court held that the railcar remained in use on

the rail lines at the time of the accident, even though

it was stopped “temporarily” while awaiting inspection “on a receiving track” in a “yard.” Id. at 13. The

Court reasoned that this was “not a case where

a defective car has reached a place of repair.” Id.

Therefore, “[t]he car in this instance had not been

withdrawn from use. The car was still in use, though

motionless.” Id. (citations omitted).

The rule Brady establishes is clear: A rail vehicle

remains in use throughout its entire journey, even

when it stops temporarily. And it remains in use

throughout any tasks ancillary to that journey, such

as inspections.

2. Predecessor Cases

a. Brady was the culmination of a series of cases

supporting that rule. That series began with Johnson

v. Southern Pacific Co., 196 U.S. 1 (1904). There, a

dining car was on a round-trip journey from San Francisco to Ogden. Id. at 21. The railroad left the car on

a sidetrack to wait for the return train to pick it up.

Id. at 12, 21. But the dining car lacked a compliant

coupler, which caused an injury to a rail worker when

he tried to attach the car to the engine of the return

train. Id. at 12.

The Court held that the dining car was in use

despite being stopped and left for another train to pick

up. The SAA applied to the dining car “while in the

act of making its interstate journey” and remained

“so when waiting for the train to be made up for the

next trip” – even if the dining car was “empty” and

obviously not providing food service as an active car

on a moving train. Id. at 22. The Court reasoned that

the dining car “was being regularly used in the movement of interstate traffic, and so within the law.” Id.

Johnson therefore confirms that a rail vehicle remains

in use throughout its journey, even while temporarily

stopped and waiting alone on a sidetrack for the rest

of its train.

b. Then, in Delk v. St. Louis & San Francisco

Railroad Co., 220 U.S. 580 (1911), a railcar hauling

lumber was stopped mid-shipment when the railroad

found it had a defective coupler. Id. at 582. Because

“the coupler was one easily repaired without being

taken to a repair shop,” the railroad put the car on a

“dead track,” marked it “in bad order,” and sent for “a

repair piece.” Id. at 583, 585. While waiting for the

repair piece, the defective coupler caused an injury to

a rail worker during a switching operation. Id. at 585.

The Court held that the railcar remained in use

when the injury occurred, despite the various precautions the railroad had taken. The railcar’s temporary

“stoppage in the yard was an incident to the transportation” of the lumber, which “had not reached its

destination.” Id. at 584-85. Given that the railcar’s

mission had not yet been completed – its cargo of

lumber was still in transit – the Court concluded that

the railcar remained in “use” even when it stopped for

simple repairs.

c. Next, in Great Northern Railway Co. v. Otos,

239 U.S. 349 (1915), a train arrived in Minnesota that

needed “breaking up” so its constituent cars could

proceed to their final destinations. Id. at 350. One of

the cars had a defective coupler, which caused serious

injuries. Id. The defective car “had been marked for

repairs and was to be switched to the repair track

before going further.” Id. But the car had not yet

reached that place of repair. Id.

The Court held that the car remained in use within

the meaning of the SAA. Id. at 351.5 The Court

reasoned that the car was “merely subjected to a delay

5 The Court’s technical holding was that the car “had not been

withdrawn from interstate commerce” rather than not withdrawn from “use.” Otos, 239 U.S. at 351. At that time, 1915, the

SAA still contained an explicit requirement that the car be in use

specifically in interstate commerce. Id. To be in use in interstate

commerce, the car had to be in “use.”

in carrying [its cargo] to its destination.” Id. The car

still was in the midst of its unitary journey, and so still

was in use.

d. In Texas & Pacific Railway Co. v. Rigsby, 241

U.S. 33 (1916), a railcar was on a very short journey

from the spur tracks on one side of the main line to the

repair shop on the other side. Id. at 36. Despite the

short distance, the crew stopped the railcar while on

the main line, short of the repair shop. Id. There, a

switchman fell from the top of a boxcar due to a defective grab iron. Id.

Again, the Court found the railcar was in use. Id. at

42-43. The Court reasoned that the SAA specifically

provides that a railroad is liable “for the death or

injury of an employee caused by or in connection

with the movement of a car with defective equipment”

even when the car is on its way to a repair facility. Id.

at 43. Thus, the injury in that circumstance was “in

connection with the movement” even though the car

was temporarily stopped during that movement.

e. Finally, in Chicago Great Western Railroad Co.

v. Schendel, 267 U.S. 287 (1925), a railcar’s drawbar6

failed, and the crew removed the train from the main

line to a side track. The crew planned “[t]o cut this car

out of the train” and proceed without it. Id. at 289,

291-92. During that process, a crew member was

killed when the train rolled backward down a grade.

Id. at 289.

The railroad argued that “since the car had come to

rest on the side track [it] had ceased to be ‘used,’

6 A drawbar is a solid connector used to couple railcars. Drawbars eliminate the free movement that can occur in the trailing

vehicle when vehicles are coupled with more flexible connectors

such as chains.

within the meaning of the [SAA].” Id. at 290. The

Court disagreed:

[W]e think it clear that the use, movement or

hauling of the defective car, within the meaning

of the statute, had not ended at the time of the

accident. To cut this car out of the train so that

the latter might proceed to [its] destination was

the thing in view, an essential part of the undertaking in connection with which the injuries

arose.

Id. at 291-92. In other words, the railcar remained in

“use” throughout the entire duration of the overall

undertaking of sending a train from its origin to its

destination.

***

Together, these cases lead to and confirm the rule

that Brady made explicit and that the Acts’ plain text

provides: a rail vehicle remains in use throughout its

entire journey, even if it temporarily stops partway.

That interpretation of the term “use” had been in place

for decades when Congress elected to preserve that

term in its 1994 recodification of the Acts.

C. This Court’s Constructions Of “Use” In

Other Statutes Support Construing “Use”

Here To Include Temporarily Stopped

Locomotives

The Court’s interpretations of “use” in other

contexts further reinforce the broad scope of the Acts’

text. For example, in a decision just one year before

the Acts’ recodification, the Court held that a criminal

defendant “used” a firearm in connection with a drug

trafficking offense when he traded that firearm for

drugs, even though he had not used it as a weapon.

See Smith, 508 U.S. at 229 (construing the phrase

“uses or carries a firearm” in the pre-1998 version

of 18 U.S.C. § 924(c)(1)(A) (1994)). As the Court

explained, “the word ‘use’ is ‘expansive’ and extends

even to situations where” a thing is not used for its

“intended purpose.” Id. at 229-31 (quoting United

States v. Long, 905 F.2d 1572, 1576-77 (D.C. Cir. 1990)

(Thomas, J.)). Therefore, a locomotive that is not

actively hauling a train (its intended use) still may be

in use.

Indeed, the Court articulated that same principle in

construing “use” in another statute shortly before the

SAA’s enactment. In Astor v. Merritt, 111 U.S. 202

(1884), the plaintiff sought a refund of customs duties

he had paid on imported clothing. Id. at 203. He

claimed the clothing was exempt from duties under

the relevant statute, which exempted from duty

“ ‘[w]earing apparel in actual use and other personal

effects.’ ” Id. (quoting Act of Mar. 2, 1861, ch. 68, § 23,

12 Stat. 178, 196 (“Customs statute”)) (emphasis

added). Much of the clothing was unworn when it

entered the United States. Id. at 208.

The Court held that the defendant’s construction of

the exemption as covering only clothing that actually

had been worn before importation was “arbitrary[ ]

and without support in the statute.” Id. at 213.

Rather, “being placed in with, and as a part of, what

is called a person’s wardrobe, is, in common parlance,

in use, in actual use, . . . as well before it is worn as

while it is being worn or afterwards.” Id. Thus, the

term “actual use” was broad enough to encompass

clothing that generally was available for wearing –

even if it actually was not being worn, had not yet

been worn, and might not ever be worn. Similarly, the

term “use or allow to be used” in the Acts is broad

enough to encompass locomotives that are available

for a railroad to power a train, even when they are not

actually doing so.

D. Under A Proper Construction Of The Acts,

LeDure Was Injured While The Locomotive

Was In “Use” Or “Allow[ed] To Be Used”

The Acts’ plain meaning and this Court’s long

history of decisions interpreting the Acts all indicate

that UP5683 was in “use or allow[ed] to be used” when

LeDure was injured.

1. As a matter of plain language, UP5683 was

being “put to a purpose” or “employed” – i.e., “used” –

at the time of the incident. It was partway through

a journey from Chicago to Dexter. LeDure stepped

onto UP5683 precisely because Union Pacific put the

locomotive to those purposes. That UP5683 actually

was powered on only reinforces that conclusion: it was

in the middle of a journey in which it was helping, or

available to help, haul railcars to their destinations,

and therefore was in use. Even assuming counterfactually that UP5683 never was powered on in the

first place, it still performed its assigned purposes of

being available to power the train if necessary and of

being relocated to Dexter, where it would be available

for further work.

UP5683’s status as temporarily motionless and on

a sidetrack does not change that conclusion. When

LeDure’s injury occurred, UP5683 still was on the

course of its journey to Dexter and located on an active

track. It had arrived just minutes before and was to

leave in less than an hour as the train continued to its

destination. That train was switching out a few cars

and was not yet ready to resume its journey as a fully

assembled train, but the LIA focuses on the locomotive, not the train. Here, the locomotive was idling on

an active track, partway through its journey. It was

neither located at a place of repair nor designated as

inaccessible to LeDure’s crew. To the contrary, his

crew’s explicit task was to finish taking the locomotive, along with the train, to its final destination. All

of those facts indicate that the locomotive was being

put to the purpose of transiting to Dexter – a form of

“use” within the Acts’ meaning.

Even if the temporarily stopped locomotive were

not in “use,” it was still “allow[ed] to be used” as the

Acts use that term. It had just powered a train from

Chicago, was still powered on from that trip, and was

available to haul a train the rest of the way to Dexter

if its towing power was needed. JA26-27. Indeed,

had UP5683 been the first locomotive rather than the

third, it likely would have remained powered on for

the trip to Dexter. Although the term “use” extends to

more than just a device’s primary purpose, UP5683

was available to perform its quintessential function as

a locomotive – i.e., it was “allow[ed] to be used” to haul

a train at the time of the incident. Indeed, Union

Pacific had allowed Norfolk Southern to use UP5683

for the two months leading up to LeDure’s injury.

JA77-78, 83. Union Pacific did nothing to prohibit the

use of UP5683 to power a train.7

2. This Court’s prior decisions construing the SAA

(and, by extension, the LIA) further confirm that

UP5683 was in “use or allow[ed] to be used” under a

7 To be sure, UP5683 had not been inspected by Union Pacific

or Norfolk Southern for multiple days. But the text of the Acts

applies to any locomotive that a common carrier “allow[s] to be

used.” Whether Union Pacific lawfully used the locomotive is

a different question. Indeed, if passing an inspection were a

prerequisite to the application of the LIA, railroads would have

a perverse incentive not to conduct required inspections of their

locomotives. Nothing in the Acts suggests that Congress

intended to include such an open invitation to bad-faith conduct.

proper construction of the Acts. This Court has found

railcars and locomotives in “use” in circumstances

that support LeDure:

 When rail vehicles are stopped mid-journey and

waiting to be coupled to a fully assembled train,

see Johnson, 196 U.S. at 22;

 When vehicles are stopped mid-journey on a

sidetrack and awaiting inspection, see Brady,

303 U.S. at 13;

 When cars are being “broken up” and not yet

ready to travel as part of a fully assembled train,

see Schendel, 267 U.S. at 291-92; Otos, 239 U.S.

at 350-51; and

 When a locomotive or a car is being towed to (but

has not yet arrived at) a repair yard, see Rigsby,

241 U.S. at 36; Delk, 220 U.S. at 584-85.

This case is analogous: UP5683 was stopped midjourney, stationary, on a sidetrack, and in the process

of being placed into a fully assembled train that was

scheduled to depart within the hour. It had not been

sent to, much less reached, a designated place of

maintenance or repair. It instead was available for

continued travel on the line.

Indeed, we have found no case from this Court

holding that a vehicle that is on the track, or that

is stopped at an intermediate point before its final

destination, or that is available to become part of a

fully assembled train, or any combination of these

circumstances, is not in “use” or “allow[ed] to be used.”

To be sure, the Court has suggested that a vehicle is

not in “use” when it actually has arrived at a designated place of maintenance or repair. See, e.g., Brady,

303 U.S. at 13 (railcar in use because it had not

“reached a place of repair”); Rigsby, 241 U.S. at 42-43

(railcar in use when it “was being taken to the shop

for repairs,” but had not yet arrived); Otos, 239 U.S. at

350 (railcar in use where it “had been marked for

repairs and was to be switched to the repair track,”

but had not yet arrived); Delk, 220 U.S. at 585 (railcar

in use where railroad decided to repair it “without

being taken to a repair shop”). But it is undisputed

that UP5683 was not in a designated place of repair

when LeDure’s injury occurred; the closest such place

was about 80 miles away.

Locomotives that, like this one, are available for

inclusion in fully assembled trains are within the

LIA’s scope under this Court’s precedents. So too are

locomotives that, like this one, are temporarily

stopped partway through their journey; remain on

active tracks; are being “broken up” and reassembled

for further travel; or have not yet reached a designated place of maintenance or repair. Any one of those

facts would be sufficient to place this case within the

scope of this Court’s precedents. Taken together, they

compel the conclusion that LeDure’s injury occurred

while the locomotive was in “use or allow[ed] to be

used.” To hold otherwise would be inconsistent with a

century of this Court’s decisions.

3. Construing “use” here to include locomotives

temporarily stopped mid-journey is consistent with

this Court’s construction of “use” in other statutes.

The defendant in Smith “used” a gun not by firing it

or threatening others with it, but simply by exchanging it for drugs. 508 U.S. at 229-30. The plaintiff in

Astor had clothing “in actual use” when it was simply

in his wardrobe available to be worn. 111 U.S. at 21314. In each of these cases, the object was put to or

made available for some purpose. So too here, where

Union Pacific “used” the locomotive – and, even more

broadly, “allowed” it to be used – by transporting it

from Chicago to Dexter. Union Pacific employed its

locomotive by transporting it to Dexter and having it

available to power a train if necessary, which are

“uses” as this Court previously has construed the

term.

Indeed, the SAA and the LIA apply more broadly

even than the Customs statute at issue in Astor. “Use”

in the LIA lacks the “actual” modifier that narrowed

“use” in Astor. And, unlike the Customs statute, the

LIA is a remedial statute. Given their remedial

nature, the Acts are “to be liberally construed in the

light of its prime purpose, the protection of employees

and others by requiring the use of safe equipment.”

Lilly, 317 U.S. at 486 (emphasis added). The Court

therefore specifically has rejected narrow interpretations of the SAA and the LIA. See, e.g., Rigsby, 241

U.S. at 41 (“we are unwilling to place the decision

upon so narrow a ground, because we are convinced

that there is no constitutional obstacle in the way

of giving to the act in its remedial aspect as broad an

application as” possible). Accordingly, the terms “use”

and “allow to be used” in the LIA should be given the

ordinary meanings this Court has applied to similar

language in other statutes – which encompass not

only hauling by locomotives, but also the simple movement of locomotives from one point to another and the

preparation or availability of locomotives for such

movement.

II. THE COURT OF APPEALS’ AND RESPONDENT’S REASONS FOR REJECTING THE

ACTS’ PLAIN MEANING AND THIS

COURT’S PRECEDENT ARE UNPERSUASIVE

Both the court of appeals and Union Pacific have

advanced various unpersuasive reasons for departing from the Acts’ plain text and this Court’s prior

decisions.

A. The Factors On Which The Court Of

Appeals Relied To Find UP5683 Not In

Use Are Insufficient

The Seventh Circuit concluded that the LIA was

“inapplicable” because “UP5683 was stationary, on a

sidetrack, and part of a train needing to be assembled

before its use in interstate commerce.” App. 4.

Whether taken individually or collectively, those three

factors cannot bear the weight the court placed on

them.

1. Stopping a vehicle does not mean it has

ceased being in “use” or “allow[ed] to be

used”

The fact that a vehicle is motionless does not stop

it from being in “use or allow[ed] to be used.” That

is the express holding of Brady: the railcar there

“was still in use, though motionless.” 303 U.S. at 13.

And the Court has applied that principle consistently

in affirming decisions that the SAA and the LIA

applied to stationary vehicles (and therefore must

have been “in use”). See, e.g., Lilly, 317 U.S. at 483-85

(the presence of ice on top of a tender that was waiting

to be filled with water violated LIA); Rigsby, 241 U.S.

at 36-38 (SAA applied to defective car on which plaintiff had just “set the brakes” to “stop [it] and hold [it]”

in place); Johnson, 196 U.S. at 12, 22 (SAA applied to

stationary dining car to which an engine was attempting to couple).

Those decisions are consistent with the Acts’ plain

text and structure; the Seventh Circuit’s reliance

on motionlessness is not. As an initial matter, very

early versions of the SAA and the LIA did include

text limiting their application to “moving” vehicles.

1911 Act § 2, 36 Stat. 913-14 (prohibiting “use [of ] any

locomotive engine propelled by steam power in moving

interstate or foreign traffic unless” LIA provisions

were satisfied) (emphasis added); 1893 Act § 1, 27

Stat. 531 (prohibiting “use” of “any locomotive engine

in moving interstate traffic not equipped with” appropriate safety equipment) (emphasis added). But Congress later chose to remove that requirement from the

statutes. See 1924 Act § 2, 43 Stat. 659. Conflating

movement with use ignores that deliberate decision.

Moreover, relying on motionlessness ignores the

LIA’s plain language extending its scope to locomotives that are “use[d] or allow[ed] to be used.” Even

assuming arguendo that motion is necessary for a

locomotive to be in “use,” it is not required to show

whether a locomotive is allowed to be used. A locomotive that is not currently moving is still “allow[ed] to

be used” if a train crew can bring it online and put it

in motion – which a crew could have done with

UP5683 in this case. Thus, a railroad’s temporary

stopping of a locomotive does not withdraw it from the

LIA’s scope.

2. Taking the vehicle off the main line does

not withdraw it from use

A vehicle may be on a sidetrack or a backtrack and

still be “use[d] or allowed to be used.” This Court

repeatedly has said so: the defective railcar in Delk

was still in use even though it was “on what is known

as ‘the dead track’ in” a railyard. 220 U.S. at 583. The

car in Schendel was within the SAA even though the

crew had moved “the whole train” from “the main line”

and “onto the adjacent siding” where the plan “was to

detach the damaged car and leave it.” 267 U.S. at 289.

The dining car in Johnson was “used in the movement

of interstate traffic, and so within the [SAA]” while it

“was standing on a side track.” 196 U.S. at 12, 22.

And the railcar in Brady “was still in use” despite

having “been brought into the yard . . . and placed on

a receiving track” before the accident occurred. 303

U.S. at 13.

Relying on a vehicle’s placement on a sidetrack or

backtrack to determine whether it is being “use[d]

or allowed to be used” also is inconsistent with the

statutory text. The LIA prohibits a railroad from

“us[ing] or allow[ing] to be used . . . on its railroad

line” any noncompliant equipment. 49 U.S.C. § 20701

(emphasis added); see also id. § 20302(a) (SAA prohibition on “us[ing] or allow[ing] to be used on any of its

railroad lines” any noncompliant equipment). This

text is not limited to a railroad’s main line. It applies

to any “line” (i.e., tracks) the railroad has, which

includes sidetracks, backtracks, and any other tracks

on the railroad’s line. Those adjacent tracks – which

typically connect to main lines – enable the railroad

to engage in switching and other operations that are

essential to train service and function. The court of

appeals’ reading would insert into the statute another

word (“main” line) that Congress did not impose. That

is not a valid statutory construction. See Romag Fasteners, Inc. v. Fossil, Inc., 140 S. Ct. 1492, 1495 (2020)

(“Nor does this Court usually read into statutes words

that aren’t there.”); Bates v. United States, 522 U.S.

23, 29 (1997) (“[W]e ordinarily resist reading words or

elements into a statute that do not appear on its

face.”).

3. Taking (or leaving) the vehicle out of a

fully assembled train does not withdraw

it from use

A vehicle may be separated from a fully assembled

train and still be “use[d] or allow[ed] to be used.” Once

again, this Court has made that specific holding in

multiple cases. See, e.g., Schendel, 267 U.S. at 291-92

(SAA applied where crew was actively working “[t]o

cut [the defective] car out of the train” at the time of

the accident); Otos, 239 U.S. at 350 (SAA applied

where plaintiff “was breaking up a train” that included the defective car); Johnson, 196 U.S. at 12, 22

(SAA applied to dining car that was “waiting for the

train to be made up for the next trip” and had not yet

been coupled to the engine). And vehicles involved in

generic switching operations, and so not intended for

any given train, are in use. See, e.g., Delk, 220 U.S.

at 583 (SAA applied where plaintiff “undertook to

switch certain cars out of [a] string of nine cars,” which

included the defective car, on a “dead track”).

Here again, the Seventh Circuit’s reasoning ignores

the statute’s plain language, particularly its “allow to

be used” phrase. A train car can be “allow[ed] to be

used” before it is coupled to a fully assembled train,

just as an automobile may be “allow[ed] to be used”

even if it needs to be filled with gas first. Indeed, if an

uncoupled railcar or locomotive were not “allow[ed] to

be used,” then it never permissibly could be included

as part of a fully assembled train in any event. That

is not the case here. UP5683 was traveling from Chicago to Dexter; that was the reason why LeDure was

on it in the first place. It therefore was being “use[d]

or allow[ed] to be used” within the meaning of the LIA.

4. Even viewed in combination, those three

factors are still insufficient to show that

a locomotive is not in “use or allow[ed]

to be used”

The conditions discussed above rarely appear in

isolation. Just as those factors individually cannot

withdraw a vehicle from use, nor can any combination

of them. See, e.g., Brady, 303 U.S. at 11-13 (defective

car was motionless, on a receiving track, and undergoing inspection, but still in use); Delk, 220 U.S. at

583, 585 (defective car not withdrawn from use despite

being on a “dead track,” marked “in bad order,” awaiting repair, and not part of a fully assembled train).

Indeed, this Court already has ruled on the combination of the three factors on which the Seventh

Circuit erroneously relied. In Johnson, the defective

dining car was stationary (waiting for an engine to

couple to it), “on a side track,” and part of a train

“waiting . . . to be made up for the next trip,” 196 U.S.

at 12, 22 – precisely the combination on which the Seventh Circuit erroneously relied. Yet this Court held

that the dining car was still being “used.” Id. at 22.

B. The Remainder Of The Seventh Circuit’s

Reasoning Is Unpersuasive

The court of appeals also relied on two other lines of

reasoning to justify its decision. Neither is sound.

First, the court of appeals relied on circuit precedent

to reason incorrectly that “ ‘to service an engine while

it is out of use, to put it in readiness for use, is the

antithesis of using it.’ ” App. 4 (quoting Lyle v.

Atchison T. & S.F. Ry. Co., 177 F.2d 221, 222 (7th Cir.

1949)). But this statement begs the question; it begins

with the assumption that the engine “is out of use” and

from that concludes that the engine is indeed not in

use.

The factual assumption underlying this logical

fallacy also is incorrect. “Preparing” an engine is

different from “servicing” it, as that term was used

in Lyle. “Preparing” for travel is part of the overall

process of running a train on its journey, and therefore

is within the meaning of the term “use” – as more than

a century of precedent holds. See, e.g., Lilly, 317 U.S.

at 483-85; Schendel, 267 U.S. at 291-92 (holding that

“use” encompassed any “essential part of the undertaking” of “proceed[ing] to [a] destination”); Johnson,

196 U.S. at 22. The “servicing” that occurred in Lyle,

by contrast, occurred in a place of repair: the court

expressly noted that the train had completed its journey and been brought to a roundhouse (a maintenance

or repair facility). 177 F.2d at 222. It is undisputed

that UP5683 was not undergoing maintenance or

repairs in a place of repair at the time of LeDure’s

injury.

Second, the court of appeals reasoned that LeDure

“essentially seeks . . . to say a locomotive is not ‘in use’

only when it is being repaired,” which it considered

“unduly narrow.” App. 4. That mischaracterizes

petitioner’s argument; petitioner’s position is that a

locomotive that temporarily is stopped during its

journey still is being “use[d] or allow[ed] to be used.”

In any event, this Court’s precedents require a narrow

understanding of when a vehicle is no longer in use

and have acknowledged that vehicles are not in use

only when they have reached (not merely begun

moving toward) the “place of repair.” Brady, 303

U.S. at 13. The Court construes the LIA “liberally”

to promote its “prime purpose, the protection of

employees and others by requiring the use of safe

equipment.” Lilly, 317 U.S. at 486; accord Brady,

303 U.S. at 15; Urie, 337 U.S. at 191 (recognizing that

LIA and SAA were broadly intended to “protect[ ] . . .

railroad employees” “from injury due to industrial

accident”). That is why Brady expressly contrasted a

vehicle that remained in use with one that actually

had reached a “place of repair” and thereby fell out of

use. 303 U.S. at 13.

Moreover, even if a narrow reading of “use” were

appropriate, the Acts already contain internal limitations that make unnecessary the further constraints

the court of appeals sought to impose. For example,

the Acts apply only where a railroad uses defective

equipment, or allows defective equipment to be used,

“on” its “railroad lines.” 49 U.S.C. § 20302(a); id.

§ 20701. These statutes therefore do not apply to rail

vehicles in places that are not on the line, such as

those in a roundhouse or a repair yard (dedicated

places of repair).

C. Respondent’s Additional Arguments Are

Unpersuasive

In addition to the three factors on which the Seventh

Circuit relied, respondent has advanced two others

during this litigation: (1) whether pre-departure

inspections have been completed, and (2) the nature of

the work the injured party was doing. These factors

likewise do not remove a locomotive from being in

“use” under the Acts.

Respondent also argues that locomotives and

railcars warrant different treatment under the Acts.

Specifically, respondent argues that, although railcars

may be motionless and in use, locomotives may not.

This argument lacks any basis in statute or precedent.

1. The status of pre-departure inspections

and preparations is irrelevant to the use

analysis

This Court has held that a rail vehicle’s status

during pre-departure inspection and preparations

does not remove that vehicle from the Acts’ ambit. In

Brady, the accident occurred during an inspection; the

fact that no inspection had been completed (much less

successfully) did not withdraw the car from use. 303

U.S. at 11. Similarly, the defective car in Delk was

awaiting repair on “the dead track” when the accident

occurred. 220 U.S. at 583-84. Although the car was

not ready to continue its journey, it still was in “use.”

Id. at 586. And, in Lilly, the tender in question

was waiting to be filled with water (part of the predeparture procedures, meaning those procedures had

not yet been completed) when the injury occurred.

317 U.S. at 483. Despite not being ready to move, the

tender was subject to the LIA. Id. at 485.

Making inspections a touchstone for “use” also is

inconsistent with the statute and with the FRA’s

inspection regulations. The LIA provides that “[a]

railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when [it] . . .

ha[s] been inspected as required under this chapter

and regulations prescribed by the Secretary of Transportation under this chapter.” 49 U.S.C. § 20701(2).

If inspection status determined whether a locomotive

was in “use,” then this phrasing would prohibit

nothing at all: it would be impossible for a locomotive

to be in “use” without having been inspected first.

Likewise, the regulations promulgated under the LIA

state that “each locomotive in use shall be inspected

at least once during each calendar day.” 49 C.F.R.

§ 229.21(a) (emphasis added). This requirement would

make no sense if a locomotive requiring or undergoing

inspection were not in “use”: only locomotives in use

would require an inspection, but those needing inspection by definition would not be in use.

Indeed, if the status of pre-departure inspections

were relevant, that would open the door to gamesmanship by railroads. A railroad could fail to perform

an inspection before departing (as Union Pacific did

in this case), then argue that the locomotive never

came into use because it was not inspected. Or it could

postpone inspections until the last minute, forcing

employees to bear the risks of unsafe equipment while

they worked on the equipment and prepared it for

travel – which is directly counter to the express intent

of the SAA, the LIA, and FELA. See Consolidated Rail

Corp. v. Gottshall, 512 U.S. 532, 542 (1994); Lilly, 317

U.S. at 486.

2. The activity of the injured party does

not determine whether a locomotive is

in use or allowed to be used

Respondent also has suggested (Opp. 9) that the

injured worker’s functions or activities may be

relevant to whether the train is in “use.” Specifically,

respondent suggests that, because LeDure was

“putting UP5683 in readiness for use,” id., the locomotive must not have been within the LIA’s scope. That

theory again conflicts with this Court’s decisions.

Brady expressly stated that liability does not depend

on “ ‘the position the employee may be in, or the work

which he may be doing at the moment when he is

injured,’ provided the defective equipment is the

proximate cause of the injury.” 303 U.S. at 16 (quoting

Louisville & N.R.R. Co. v. Layton, 243 U.S. 617, 621

(1917)); accord Layton, 243 U.S. at 621 (“The language

of the acts . . . make[s] it entirely clear that the liability

. . . springs from its being made unlawful to use cars

not equipped as required[ ] – not from the position the

employee may be in, or the work which he may be

doing at the moment when he is injured.”) (emphases

added); Rigsby, 241 U.S. at 41 (reasoning that SAA

“require[s] certain safety appliances . . . irrespective of

the use made of any particular car at any particular

time”). It would be inappropriate to narrow the

scope of statutory protection by imposing another

requirement through an atextual addition to the “use”

analysis.

Respondent’s suggestion that “putting [a locomotive]

in readiness for use” falls outside the Acts’ protection

also ignores the statute’s language. An employee’s

action of “putting [a locomotive] in readiness for use”

is effectuating “use” of a locomotive that is “allow[ed]

to be used.” If anything, it provides affirmative

evidence that the locomotive was allowed to be used:

a locomotive not in use or allowed to be used would

provide no work for an engineer, whose job duties do

not include maintenance and repair work.

3. Respondent’s proposed distinction between locomotives and railcars is unpersuasive

Respondent has attempted to distinguish some

of this Court’s precedents by arguing that, because

“rail cars and locomotives perform very different

functions,” a railcar can be motionless and in use, but

a locomotive cannot. Opp. 19. There is no textual

basis in the Acts for that distinction. Regardless of the

difference in their primary functions, both locomotives

and railcars can be in the employ or put to the purpose

of (i.e., “used” by) being transported to a new location

for further assignment there. Nothing in the text of

the Acts limits the scope of potential uses or specifies

that the only relevant “use” for locomotives is to

“haul” a train. See Rigsby, 241 U.S. at 41 (SAA applies

“irrespective of the use made of any particular car at

any particular time”).

In any event, respondent’s proposed distinction

between locomotives and railcars ignores the reasoning

of this Court’s precedents, which provides no basis for

the distinction. None of this Court’s cases has relied

on any distinction between the primary or intended

purposes of railcars compared to locomotives. If that

distinction were relevant, then empty railcars (which

are not fulfilling their primary function of carrying

goods or passengers) or inoperable locomotives (which

are not fulfilling their function of hauling trains)

should be treated differently from loaded railcars or

functioning locomotives. This Court’s decisions draw

no such distinctions and, in fact, disavow them. See,

e.g., Rigsby, 241 U.S. at 36 (non-operational railcar

heading to repair yard still considered to be in use,

even though it could not have been serving the

ordinary “function” of a railcar in doing so); Johnson,

196 U.S. at 21-22 (non-operational dining car still

considered to be in use, even though it could not have

been serving the ordinary “function” of a dining car at

the time).

Finally, the Court’s cases confirm that the equipment deficiencies on railcars that have given rise to

injuries are similar to equipment on locomotives. No

rational basis exists to distinguish between railcars

and locomotives for defective grab irons (Brady),

defective couplers (Johnson/Otos), the presence of ice

(Lilly), or brake failures that cause a vehicle to move

at an unintended moment.

III. APPLYING THE ACTS TO STOPPED

LOCOMOTIVES ADVANCES CONGRESS’S

SOUND POLICY JUDGMENTS AND REMEDIAL PURPOSES

Congress enacted the Acts and FELA to protect railroad workers by requiring railroads to use adequate

safety equipment and creating a rule of negligence

per se when a failure to do so causes injury. Achieving

these goals requires applying the Acts to temporarily

stopped locomotives and other railroad vehicles, which

account for most injuries involving such vehicles.

Maintaining a stable regulatory regime also requires

applying the Acts to stationary locomotives and

railcars. When the Acts apply, the FRA has jurisdiction over the vehicle. Interpreting “use” to exclude

temporarily stopped vehicles therefore would cause

regulatory jurisdiction to oscillate on and off on a

regular basis, causing confusion and interfering with

the FRA’s longstanding regulatory authority.

A. The Acts, With Their Longstanding

Remedial Construction, Have Significantly

Improved Safety For Rail Workers

In the late nineteenth and early twentieth centuries, “the physical dangers of railroading . . . resulted

in the death or maiming of thousands of workers every

year.” Gottshall, 512 U.S. at 542. Congress enacted

FELA to pass some of this “ ‘human overhead’ of doing

business from employees to their employers.” Id.

(quoting Tiller v. Atlantic Coast Line R.R. Co., 318

U.S. 54, 58-59 (1943)); see also Wilkerson v. McCarthy,

336 U.S. 53, 68 (1949) (Douglas, J., concurring) (FELA

“was designed to put on the railroad industry some

of the cost for the legs, eyes, arms, and lives which

it consumed in its operation”). Likewise, the “prime

purpose” of the SAA and the LIA is “protecti[ng] . . .

employees and others by requiring the use of safe

equipment.” Lilly, 317 U.S. at 486.8

For the past 130 years, Congress’s and the FRA’s

regulatory efforts have made great progress advancing these goals. Deaths and injuries among on-duty

railroad employees have significantly decreased over

the years.9 In the modern era (since 1975), deaths and

injuries have decreased by more than 90%.10

That success has come against the backdrop of the

liberal construction this Court has afforded to the

Acts. See Lilly, 317 U.S. at 486 (instructing that the

LIA must “be liberally construed in the light of its

prime purpose, the protection of employees and others

by requiring the use of safe equipment”) (emphasis

8 Congress reaffirmed this intent when it recodified the Acts

in 1994, expressly stating as its purpose “to promote safety in

every area of railroad operations and reduce railroad-related

accidents and incidents.” 49 U.S.C. § 20101. At that same time,

Congress also authorized the Secretary of Transportation (who

acts through the FRA) to “prescribe regulations and issue orders

for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.” Id. § 20103(a).

9 Despite significant improvements in reducing deaths and

injuries – spurred in part by FELA liability and the Acts’

regulatory rules – the railroad industry still is disproportionately

dangerous, with “a fatal injury rate more than twice the

all-industry rate.” Dino Drudi, Railroad-related work injury

fatalities, Monthly Labor Review 17 (Sept. 14, 2007), https://

www.bls.gov/opub/mlr/2007/07/art2full.pdf. When Congress in

1906 considered a predecessor version of what eventually became

FELA, one representative noted that the railroad industry had

931 fatalities and 13,217 injuries in just three months. See 40

Cong. Rec. 4607 (1906).

10 See U.S. Dep’t of Transp., Bur. of Transp. Statistics, Fatalities and Injuries of On-Duty Railroad Employees, Table 2-44,

https://www.bts.gov/content/fatalities-and-injuries-duty-railroademployees (last accessed Jan. 20, 2022).

added); Rigsby, 241 U.S. at 41 (indicating that “the act

in its remedial aspect” should be given “as broad an

application as” possible).

B. A Majority Of Rail Worker Casualties Occur

On Stationary Equipment, And Withdrawing That Equipment From The Acts’ Scope

Would Make Rail Workers Significantly

Less Safe

Interpreting “use” to exclude vehicles not moving or

not part of a fully assembled train would threaten to

undo much of that progress. Thousands of railroad

casualties involving locomotives and railcars still

occur every year.11 Undoing this Court’s longstanding

interpretive approach to the Acts would undermine

the FRA’s ability adequately to regulate this dangerous industry and injured workers’ ability to receive

fair compensation for their workplace injuries.

That risk is particularly acute with regard to the

specific issue this case presents: whether a temporarily stopped locomotive not part of a fully assembled

train is outside the scope of the LIA. In fact, the

majority of locomotive-related injuries involve stopped

locomotives. For example, in 2020 alone, there were

142 employee casualties (deaths and injuries) on

stationary locomotives on or near the line, compared

to 50 casualties on moving locomotives.12 Similarly,

See FRA, Casualties (Deaths and Injuries) to Employees

on Duty, https://safetydata.fra.dot.gov/OfficeofSafety/publicsite/

Query/castally1.aspx (last accessed Jan. 29, 2022).

12 See id. (select “January 2020” in the “Start Month for

Report” field and December 2020 in the “End Month for Report”

field, “On or Near Track” in the “Location” field, and then

“Generate Report”; the relevant statistics then appear in the fifth

table, entitled “Equipment Involved”). The stationary locomotive

casualties are the sum of the “Locomotive(s) – standing” and

386 casualties occurred on railcars (excluding locomotives) not part of fully assembled trains, compared

to 299 casualties on cars that were part of fully

assembled trains.13 Interpreting “use” not to include

vehicles that are stationary or not part of a fully

assembled train thus would deprive a majority of

injured rail workers of the Acts’ protections.

Reading such a gap into the Acts would be

inconsistent with Congress’s remedial intent. After

all, the only way locomotives can become part of a fully

assembled train is to have railroad employees prepare

them for transport in trains. If the Acts’ protections

do not apply at that time, it would mean that Congress

excluded an enormous portion of employees’ work –

and the risks they face – from their scope. Nothing in

the text, structure, or decades of this Court’s decisions

applying the Acts suggests that Congress sought to

leave such a glaring hole in the regulatory scheme.

C. Allowing Railroads To Avoid Liability By

Leaving Noncompliant Vehicles Stationary

On Sidetracks Thwarts The Acts’ Remedial

Goals

The position advanced by the court of appeals and

respondent – that a temporarily stopped locomotive

is not in use, even though it is partway through its

“Locomotive(s), remote control – standing” rows; the moving

locomotive casualties are the sum of the “Locomotive(s) –

moving” and “Locomotive(s), remote control – moving” rows.

13 See id. The casualties for not fully assembled trains are the

sum of the “Passenger car(s) – standing,” “Freight car(s) – standing,” “Passenger car(s) – moving,” “Freight car(s) – moving,”

“Camp car – standing,” and “Camp car – moving” rows; the

casualties for fully assembled trains are the sum of the “Freight

train – moving,” “Passenger train – moving,” “Passenger train –

standing,” and “Freight train – standing” rows.

journey and is available to be added to a fully assembled train for further travel – would allow railroads to

frustrate the Acts’ operation.

As an initial matter, the Court long has recognized

that the LIA’s purpose is one of “facilitating employee

recovery, not of restricting such recovery or making it

impossible.” Urie, 337 U.S. at 189. Interpreting “use”

to exclude stopped vehicles, or vehicles not part of a

fully assembled train, would have precisely that effect:

for the majority of employees whose injuries occur on

such vehicles, recoveries would be severely restricted,

if not impossible.

Moreover, excluding from the LIA’s scope stopped

vehicles or vehicles not part of a fully assembled train

would leave minor repair work (and work on stationary vehicles generally) on the lines unregulated. In

general terms, a railroad with defective equipment

has two options: it can move disabled vehicles to

fully equipped repair yards, or it can send repair

teams out to disabled vehicles wherever they may

be found without the full capability of the repair yard.

If regulating stationary vehicles were beyond the

scope of the LIA as well (and thus beyond the FRA’s

regulatory authority), the resulting legal regime

would create great uncertainty for rail workers in the

very situations that most frequently cause injury.

That would be a highly ironic outcome, however,

in light of the fact that Congress enacted the Acts

and FELA because it viewed then-prevailing state

remedies as inadequate. See Gottshall, 512 U.S. at

542-43.

Excluding temporarily stopped vehicles from the

FRA’s regulatory regime also would create unworkable ambiguity. If the FRA has regulatory authority

over moving vehicles only, then its regulations regarding inspections and testing, see, e.g., 49 C.F.R.

§§ 229.21-229.33, would become largely unworkable

or nonsensical. See, e.g., id. § 229.23(a) (requiring

inspection of “the entire underneath portion of the

locomotive,” which would be highly dangerous, if

not impossible, while the locomotive is moving); id.

§ 229.29(a) (requiring air brake calibration, which

would be impossible while the locomotive is moving).

The FRA’s regulations make sense under the LIA’s

text and this Court’s longstanding construction of it;

abandoning that construction would throw this regulatory scheme into disarray. Cf. Virginia Uranium,

Inc. v. Warren, 139 S. Ct. 1894, 1903 (2019) (plurality)

(rejecting proposed interpretation that would create a

regulatory gap and cripple the government’s ability to

regulate the unique risks of uranium mining).

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

NELSON G. WOLFF

JEROME J. SCHLICHTER

SCHLICHTER BOGARD &

DENTON, LLP

100 South Fourth Street

Suite 1200

St. Louis, Missouri 63102

(314) 621-6115

DAVID C. FREDERICK

Counsel of Record

BRADLEY E. OPPENHEIMER

MATTHEW J. WILKINS

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

Counsel for Petitioner

January 31, 2022

ADDENDUM