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

Supreme Court briefFeb 7, 2022

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No. 20-807

In The

Supreme Court of the United States

Bradley ledure,

unIon PacIfIc raIlroad comPany,

Petitioners,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF OF AMICI CURIAE BY THE SHEET METAL,

AIR, RAIL TRANSPORTATION WORKERS–

TRANSPORTATION DIVISION, THE

BROTHERHOOD OF LOCOMOTIVE ENGINEERS

AND TRAINMEN, AND ACADEMY OF RAIL LABOR

ATTORNEYS IN SUPPORT OF PETITIONER

lawrence m. mann

Counsel of Record

Alper & Mann, P.C.

9205 Redwood Avenue

Bethesda, MD 20817

(202) 298-9191

mann.larrym@gmail.com

Joshua d. mcInerney

General Counsel, BLET

Barkan Meizlish LLP

4200 Regent St, Suite 210,

Columbus, Ohio 43219

(614) 221-4221

jmcinerney@barkanmeizlish.com

KevIn Brodar

General Counsel, SMART-TD

24950 Country Club Blvd

North Olmstead, OH 44070

(216) 228-9400

kbrodar@smart-union.org

nIcholas d. ThomPson

Casey Jones Law

3520 Cherryvale Avenue

Suite 83

Appleton, WI 54913

(757) 477-0991

nthompson@caseyjones.law

Additional Counsel on Inside Cover

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

49261_Ltrhd.indd

6/11/08

12:44:0

JosePh m. sayler

David Tomenes

Bolt Hoffer Boyd Law Firm

2150 Third Avenue N

Anoka, MN 55303

(763) 406-7000

joseph.sayler@bolthoffer.com

Counsel for Amici

February 7, 2022

TABLE OF CONTENTS

Page

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

iii

INTERESTS OF AMICUS CURIAE ..................

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

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

I. THE PLAIN TEXT OF THE LIA AND

THE FRA’s ENFORCEMENT OF IT DO

NOT DISTINGUISH BETWEEN

MOVING OR STATIONARY

LOCOMOTIVES ........................................

A. Legislative Changes To The LIA Show

That It Is Violated Even If A

Locomotive Is Not Moving ...................

B. Railroad Workers Are Injured More

Frequently On Stationary Locomotives

Than On Moving Locomotives. ............

C. Implications Of The Seventh Circuit’s

Decision Are Far Reaching. .................

D. Enforcement Of The LIA By The FRA

Does Not Distinguish Between Moving

And Standing Locomotives ..................

II. ADOPTION OF THE RAILROADS’

INTERPRETATION OF THE LIA

WOULD REQUIRE THE COURT TO

IGNORE STARE DECISIS, CREATE A

REGULATORY GAP, RESULT IN

ABSURD OUTCOMES, AND

OTHERWISE UNDERMINE THE

LIA’S PURPOSE........................................

TABLE OF CONTENTS—Continued

Page

III. CANONS OF STATUTORY

INTERPRETATION AND STARE

DECISIS REQUIRE REVERSAL OF

THE SEVENTH CIRCUIT........................

IV. EXCLUDING SWITCHING AND PREDEPARTURE ACTIVIES FROM THE

DEFINITION OF “IN USE” WOULD

RENDER THE ACTS NEARLY

INAPPLICABLE........................................

A. Switching And Pre-Departure Work Is

A Necessary, Predominate Work Duty

Of Train Crews And Are The Most

Common Form Of Work Duties

Bringing Train Crews In Contact With

Equipment Protected By The Acts. ......

B. Given The Plain Language Of The

Acts, Excluding Switching And PreDeparture Work Would Render The

Acts Superfluous. .................................

C. Union Pacific Asks This Court To

Supplant Its Definition Of “In Use”

With One That Would Largely Render

The Acts Inapplicable. .........................

D. Rejecting The Acts’ Plain Meaning

And This Court’s Precedent Would

Dislodge Settled Rights And

Expectations, Inviting An Inconsistent

And Unsafe Application. .......................

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

iii

TABLE OF AUTHORITIES

Page

Cases

Affolder v. New York, C. & St. L.R. Co.,

339 U.S. 96 (1950) ...........................................

Angell v. Chesapeake & O. Ry. Co.,

618 F.2d 260 (4th Cir. 1980) ...........................

Atlantic City R. Co. v. Parker,

242 U.S. 56 (1916) ...........................................

Brady v. Terminal Railroad Association,

303 U.S. 10 (1938) ........................................ passim

Carter v. Atlanta & St. A.B. Ry. Co.,

338 U.S. 430 (1949) .........................................

Chi. Milwaukee & St. Paul Ry. Co. v. Coogan,

271 U.S. 472 (1926) .........................................

Consolidated Rail Corporation v. Gottshall,

512 U.S. 532 (1994) ..................................... 6, 12, 15

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004).................................... 15, 22, 23

CSX Transp., Inc. v. McBride,

564 U.S. 685 (2011) ......................................... 17, 27

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) .........................................

Hilton v. S.C. Pub. Ry. Comm’n,

502 U.S. 197 (1991) ..............................13, 17, 24 ,27

Holfester v. Long Island R.R. Co.,

360 F.2d 369 (2d Cir. 1966) ............................

Home Depot U. S. A., Inc. v. Jackson,

139 S. Ct. 1743 (2019) .....................................

Johnson v. So. Pac. Co.,

196 U.S. 1 (1904) .............................................

TABLE OF AUTHORITIES—Continued

Page

Kurns v. R.R. Friction Prod. Corp.,

565 U.S. 625 (2012) .........................................

LeDure v. Union Pac. R.R. Co.,

2019 WL 399924 (S.D. Ill. Jan. 31, 2019) ......

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

317 US 481 (1943) ........................................... 14, 25

Lyle v. Atchison T. & S.F. Ry. Co.,

177 F.2d 221 (7th Cir. 1949) ...........................

Norfolk & W. Ry. Co. v. Hiles,

516 U.S. 400 (1996)..................................... 8, 19, 25

O’Donnell v. Elgin, J. & E. Ry. Co.,

338 U.S. 384, 385(1949) ..................................

Robb v. Burlington N. & Santa Fe Ry. Co.,

100 F. Supp. 2d 867

(N.D. Ill. 2000) ....................................................

San Antonio & Aransas Pass R. Co. v. Wagner,

241 U.S. 476 (1916) .........................................

Swinson v. Chicago, St. P., M. & O. Ry. Co.,

294 U.S. 529 (1935) .........................................

Tiller v. Atl. Coast Line R. Co.,

323 U.S. 574 (1945) .........................................

Urie v. Thompson,

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

U.S. v. Erie R. Co.,

237 U.S. 402 (1915) ......................................... 22, 26

Wright v. Ark. & Mo. R.R.,

574 F.3d 612 (8th Cir. 2009) ...........................

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) .....................................

TABLE OF AUTHORITIES—Continued

Page

Statutes and Regulatory Authorities

Federal Employers’ Liability Act,

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

Railway Labor Act,

45 U.S.C. §§ 151 ..............................................

Federal Railroad Safety Act of 1970,

49 U.S.C. §§ 20101-20144, 21301-21304 ........

Locomotive Inspection Act,

49 U.S.C.§ 20701 .......................................... passim

Safety Appliance Act

49 U.S.C. §§ 20101-20103, 20301-20306...... passim

45 U.S.C. § 53 ......................................................

45 U.S.C. § 54a .................................................... 10, 11

Pub. L. 110-432, codified at 49 U.S.C.

§ 103(c) (2008) .................................................

2, 6

Pub. L. 103–272, §1(a), July 5, 1994,

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

Act of Feb. 17, 1911, ch.103, §2,

36 Stat. 913-914 ..............................................

H.R. Rep. No. 1974, 61st Cong.,

3d Sess. (1911).................................................

S. Rep. No.740, 68th Cong., 1st Sess. (1924) .....

H.R. Rep. No. 490, 68th Cong., 1st Sess. (1924)

44 Fed. Reg. 29604 (May 21, 1979.) ...................

45 Fed. Reg. 21092 (March 31, 1980) .................

49 C.F.R. Pt. 215 ................................................. 8, 10

49 C.F.R. Pt. 229 ............................................. passim

49 C.F.R. Pt. 231 ................................................. 10, 23

Other Authorities

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal

Texts (2012) ..................................................... 15, 16

Charles McDonald, The Federal Railroad

Safety Program: 100 Years of Safe Railroads,

Federal Railroad Administration (1993) ......... 15, 17

FRA’s Fiscal Year 2020 Enforcement Report ....

FRA’s Fiscal Year 2019 Enforcement Report ....

1st Cir. Pattern Jury Instr. For R.R. Empl.

Pers. Inj. Cases – § 2.1 (2011) ........................

5th Circuit Pattern Jury Instr. –

Civil § 5.2 (2014); 8th Cir. Civil Jury

Instr. §§ 15.41, 15.42 (2020) ...........................

Gamst & Gavallla, Hazard Survey of Remote

Control Locomotive Operations on the

General System of Railroads in the United

States ( 2005) ...................................................

RAIL SAFETY: Improved Human Capital

Planning Could Address Emerging Safety

Oversight Challenges, Report to

Congressional Requesters, December 2013;

GAO-14-85 .......................................................

Reinach & Gertler, An Examination of

Railroad Yard Worker Safety, Federal

Railroad Administration (2001) .....................

INTERESTS OF AMICI CURIAE 1

The Sheet Metal, Air, Rail, and Transportation

Workers-Transportation Division (“SMART-TD”)

is the duly recognized collective bargaining representative under the Railway Labor Act (“RLA”), 45

U.S.C. § 151, et. seq., for the crafts or classes of

conductors and other train service employees employed by freight, passenger and commuter rail

carriers operating in the United States. SMARTTD represents more than 100,000 employees in the

railroad industry.

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

and other train service employees employed by

freight, passenger and commuter rail carriers operating 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 operate 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

Pursuant to this Court’s Rule 37.2, amicus 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. Each of the parties received notice of our

intention to file an amicus brief at least 10 days prior to the deadline to file this brief. The Petitioner and Respondent, through

counsel, gave their consent to the filing of this Brief.

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

The clear intent, encouragement, and dedication of

Congress is to the furtherance of the highest degree of

safety in railroad transportation. 49 U.S.C. § 103(c).

Coupled with these requirements, all of the railroad

safety laws are to be construed in order to accomplish

the remedial purpose of railroad safety. Neither of

these policies can be accomplished by upholding the

Seventh Circuit’s restrictive view of the Locomotive

Inspection Act (“LIA”) (49 U.S.C. § 20701).

If this Court were to restrict the LIA has violations

to only locomotives actually moving, then an overwhelming majority of violations imposed by the Federal Railroad Administration (“FRA”) under the LIA

and the Safety Appliance Act (“SAA” together with

the LIA (“the Acts”) (49 U.S.C. §§ 20101, 20301-20306)

would become a nullity, even though most railroad casualties occur on locomotives or trains temporarily

stopped. FRA always administered those laws with-

out the condition of movement and without opposition

regarding the application of those laws.

Regarding “use” or “used”, referenced in the LIA or

SAA, with only one exception, none of FRA’s 50-plus

years of enforcement of those laws distinguishes between moving equipment and standing equipment.

One of the core objectives of Congress in enacting

FELA and the Acts was to secure a uniform framework for protecting injured rail workers. This is made

clear in the plain text of the statutes. In the statutory

context, stare decisis is vital where this Court’s decisions have helped create a uniform standard. And,

change would dislodge settled rights and expectations.

In Brady v. Terminal Railroad Association, 303 U.S.

10 (1938), this Court made clear that equipment is

subject to the Acts safety requirements and is considered “in use” unless it is at a place of repair. This reflects the nature of the work that train crews perform

and the reality of the hazards they encounter in railroad yards and during switching. In contrast, the

Seventh’s Circuit’s decision, if upheld, would render

the long-standing protections afforded by the Acts superfluous. Congress has amended the Acts several

times since enactments, and nothing in those amendments indicates an intent to overturn Brady.

Through this Court’s decision in Brady and others,

a largely uniform application of “in use” has allowed

courts and litigants to reliably apply the Acts in FELA

cases. It allows railroad works, regulators, and railroads alike to know when minimum safety standards

must be met. This uniformity is consistent with the

remedial nature of FELA and the plain language of

the Acts. The test urged by the railroad and proposed

by the Seventh Circuit would turn this uniformity on

its head. As detailed below, a departure from this

long-established standard would have vast and dire

consequences to railroad safety. To reinterpret the

Acts, as the railroad urges disrespects the principle of

stare decisis and will endanger lives.

ARGUMENT

I. THE PLAIN TEXT OF THE LIA AND THE

FRA’s ENFORCEMENT OF IT DO NOT

DISTINGUISH BETWEEN MOVING OR

STATIONARY LOCOMOTIVES.

A. Legislative Changes To The LIA Show

That It Is Violated Even If A Locomotive

Is Not Moving.

The LIA is one of the oldest provisions of safety regulation in our Nation, dating back to the 19th century

when it was known as the Boiler Inspection Act. Originally, it was enacted because of frequent boiler explosions on steam locomotives and applied only to locomotive boilers and appurtenances. See, H.R. Rep. No.

1974, 61st Cong., 3d Sess. (1911). In 1915, the Act was

amended to cover the entire locomotive, tender, and

appurtenances. Congress addressed the problem further in 1924, attempting to increase the safety of the

public and workers.

Before 1924, the LIA was limited to locomotives

“moving” in interstate or foreign commerce. Act of

Feb. 17, 1911, ch.103, § 2, 36 Stat. 913-914. In 1924,

Congress amended the LIA, removing the requirement that equipment be moving, therein making it

unlawful for any carrier to “use or allow to be used

any locomotive or tender on its railroad line. . .” unless

they are in “proper condition and safe to operate without unnecessary danger of personal injury. . . . have

been inspected . . . ; and can withstand every test prescribed . . . .” 49 U.S. C. § 20701.2

The House and Senate reports include a letter from

the Interstate Commerce Commission, which was authorized to administer the LIA until the FRA was established in 1966, which is instructive:

It was necessary, in view of the language of section 2,

making it unlawful to use a locomotive “in moving

interstate traffic,” to secure evidence that the locomotives were in fact used in moving interstate traffic

when in an unsafe condition or overdue for inspection. Proof of interstate movement necessitated an

extensive examination of railroad records, including

wheel reports, waybills, and yard records, at many

different points. The time and labor necessary for

this not only militated materially against the prompt

handling of such cases, but limited, to a great extent

the number of cases which could be prepared for court

action with the small number of inspectors available.

The proposed amendment, in our opinion, will

remedy this situation by making it unnecessary to prove movement of interstate traffic.

H.R. Rep. No. 490, 68th Cong., 1st Sess. 5 (1924); S.

Rep. No.740, 68th Cong., 1st Sess. 5 (1924) (emphasis

added).

The statute makes it clear that movement is no

longer a requirement under the LIA. When Congress

makes a significant change in language and it

amends an existing statute, it “presumptively connotes a change in meaning.” Antonin Scalia & Bryan

Both the LIA and the SAA were further amended in 1994

without any substantive change. Pub. L. 103–272, § 1(a), July 5,

1994, 108 Stat. 745.

A. Garner, Reading Law: The Interpretation of Legal

Texts 256 (2012) (“If the legislature amends or reenacts a provision other than by way of a consolidating

statute or restyling project, a significant change in

language is presumed to entail a change in meaning”). Congress’s evident purpose here was to remove

the limiting language by expanding the LIA coverage beyond locomotives moving in interstate traffic,

and it should be interpreted to effectuate the remedial purpose of the law.

Congress, since its enactment of the FELA, the

Acts, and through its more recent enactment of the

Federal Railroad Safety Act of 1970 (49 U.S.C.

§ 20103(a)) has consistently expressed its intention

“to promote safety in all areas of railroad operations

and to reduce railroad-related accidents, and reduce

deaths and injuries to persons. . . .” Pub. L. 9l-458,

codified at 49 U.S.C. § 20101. Additionally, a 2008

amendment mandates that the FRA “shall consider

the assignment and maintenance of safety as the

highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in railroad transportation.” Pub. L. 110-432, codified at 49 U.S.C.

§ 103(c) (2008). Each of these enactments demonstrate Congress’s intent to promote railroad safety.

Coupled with the above requirements, all railroad

safety laws are to be construed in order to accomplish

the remedial purpose of railroad safety. Brady v. Terminal Railroad Association, 303 U.S. 10 (1938). Moreover, FELA was enacted to “shif[t] part of the human

overhead of doing business from employees to their

employers.” Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 542 (1994). Neither of these policies can be accomplished by upholding the Seventh

Circuit’s restrictive view.

B. Railroad Workers Are Injured More

Frequently On Stationary Locomotives

Than On Moving Locomotives.

More employees are injured on stationary locomotives than those that are moving. In fact, almost twice

as many employees are injured when a locomotive is

standing, as compared with a moving locomotive. Statistics compiled by FRA show that between 2018 and

2021, there were 558 injuries to employees in a locomotive/train standing in the cab or walkways, while

there were only 316 injuries in moving locomotive/

train.3 Operating crews do more than transport freight

across the country. Much work is incidental, but required prior to any movement. Many crews are assigned to build trains in hundreds of rail yards throughout the country. They board and alight locomotives

and rail cars constantly in the yards, and are exposed

daily to the hazards that the FRA has addressed in the

safety regulations. Daily, their job duties require that

there are numerous inspections required by train

crews in rail yards before any locomotive is permitted

to move. See, e.g., 49 C.F.R. Part 229. And, in Brady,

this Court made clear that a locomotive or car is still in

use, though motionless. 303 U.S. at 13. The duty imposed is an absolute one, and Congress made no exception to those employed in inspecting cars. Id. at 15.

Those laws should be construed to afford a right of recovery for every injury caused by the failure to comply

with the requirements of the Acts. If the lower court’s

narrow interpretation of “in use” is followed, the adverse safety effect will be widespread and contrary to

this Court’s precedent. Moreover, the railroad safety

laws enacted by Congress would be gutted.

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

castall1.aspx.

C. Implications Of The Seventh Circuit’s

Decision Are Far Reaching.

The implications of the Seventh Circuit’s decision

are far reaching and will impact FELA litigation in a

vast range of contexts, impacting more than the LIA.

The SAA has similar language to the LIA. These two

statutes, along with FELA, share the same underlying purpose of protecting employees and providing

recovery for injured rail workers. Urie v. Thompson,

337 U.S. 163,191(1949). If this Court were to restrict

the LIA violations to only locomotives actually moving, then an overwhelming majority of violations imposed by the FRA under the Acts also would become a

nullity. This would also directly impact the FRA’s

freight car regulations at 49 C.F.R. Pt. 215, where the

FRA does not imposed a requirement that a freight

car be moving.

D. Enforcement Of The LIA By The FRA

Does Not Distinguish Between Moving

And Standing Locomotives.

This Court has reviewed how FRA enforces the Acts

to understand the Acts’ intended scope. Norfolk & W.

Ry. Co. v. Hiles, 516 U.S. 400. 413 (1996) .In promulgating locomotive safety standards, the FRA enforces

regulations whether the locomotive is moving or stationary. In construing prohibited acts in 49 C.F.R.

§ 229.7, it states: “For purposes of civil penalty liability, any use of a locomotive that is not in proper condition and safe to operate or that has not been inspected

or tested as required is a violation.” 45 Fed. Reg. 21092,

21093 (March 31, 1980). FRA’s section of its locomotive

standards is essentially a restatement of Section 2 of

the LIA. Id. (Codified at 49 U.S.C. § 20701). Additionally, the FRA has stated that “Section 2 is broad in its

sweep and makes clear that each carrier is responsible

to insure (sic) that locomotives used on its line are

safe.” 44 Fed. Reg. 29604, 29605 (May 21, 1979.)

In FRA’s fiscal year enforcement reports. In 2020, it

recommended 545 violations of LIA standards, 435

freight car safety standard violations, and 1,725 safety

appliance statutes and regulations violations.4 In 2020,

there were 200,262 defects discovered by FRA inspectors on Class I railroads,5 and 57,342 on the Union Pacific Railroad alone. Id. at 6, 10. Similarly, in 2019, it

found 515 inspections in which it recommended a LIA

violation, 429 freight car safety standards violations,

and 1,642 violations of the SAA statutes and regulations.6 In 2019, FRA identified 203,516 defects on Class

I railroads, of which 50,607 defects were discovered on

the Union Pacific Railroad. Id. at 6, 10. Substantially

more violations likely existed, as the Government Accountability Office stated, “[b]y FRA’s own estimation,

its inspectors have the ability to inspect less than 1

percent of the federally-regulated railroad system.”

RAIL SAFETY: Improved Human Capital Planning

Could Address Emerging Safety Oversight Challenges,

Report to Congressional Requesters, December 2013;

GAO-14-85 (p.2). Very little has changed since that report. Obviously, with such oversight lacking by FRA

due to its limited resources, the protections afforded by

FELA and the various safety laws, such as the Acts,

are even more essential to accomplishing Congress’

goals of improving rail safety and reducing injuries

and deaths of rail workers.

At page 5. https://railroad.dot.gov/elibrary/fiscal-year-2020enforcement report. The 2021 report has not been published.

These are the Nation’s 7 largest railroads.

At page 5. https://railroad.dot.gov/elibrary/fiscal-year-2019enforcement-report

Regarding “use” or “used,” referenced in the railroad safety statutes, none of the FRA’s 50-plus years

of enforcement distinguishes between moving equipment and standing equipment, with only one exception. In only one instance does an LIA regulation establish a penalty for movement of a noncomplying

locomotive, 49 C.F.R. § 229.9, which places some restrictions to ensure safe movement. And, even there,

railroads remain strictly liable to workers injured

while transporting a noncomplying locomotive. 45

U.S.C. § 54a. There are 199 other safety requirements

for locomotives. 49 C.F.R. Part 229, App. B-Schedule

of Civil Penalties. There are also 57 freight car safety

requirements, and none entail movement. 49 C.F.R.

Pt. 215, App. B-Schedule of Penalties. When added to

the safety appliances standards in 49 C.F.R. Pt. 231,

it cannot be validly argued that only locomotive movement is required to be considered in use by the LIA.

In this particular case, 49 C.F.R. § 229.45 requires all

systems and components on a locomotive to be free of

conditions endangering the safety of the crew, including

oil. Additionally, 49 C.F.R. § 229.119 requires that floors

of cabs, passageways, and compartments shall be kept

free from oil and other slipping hazards. Neither of

these regulations are limited to moving locomotives.

There are various other requirements that also

clearly apply when a locomotive is stationery and part

of a train that is not fully assembled: See, e.g., 49

C.F.R. § 229.9(e) The movement of noncomplying locomotives, as dead locomotives, does not cause the engine to cease being a locomotive for purposes of this

part even when the motors are inoperative; § 229.21Each locomotive in use shall be inspected at least once

during each calendar day and written report made.

These inspections are not done while train is under

way and distinguishes between inspections in a repair

facility versus one that is in use; § 229.41—This provides protection against personal injury; § 229.43 Exhaust and battery gases shall be located non-hazardous locations; § 229.45—All systems and components

shall be free of conditions that endanger the safety of

the crew, locomotives, or train; §§ 229.77-.91Cover the

electrical systems, which are operating even when the

locomotive is standing alone and idling; §§ 229.115.119—Addressing locomotive cabs and equipment, including seats, windows, floors/passageways, ventilation, open end platform, and air conditioning;

§ 229.127—Requires sufficient illumination for the

control panel; and §§ 229.137-.139—Requiring proper

sanitation facilities on the locomotive.

Logically, these sections apply when train crews encounter the locomotive to perform their work, as opposed to in the maintenance/repair shop. Such an application is consistent with decades of express intent

to protect crews when performing their duties, which

often occur when the locomotive is stationary and not

part of a fully assembled train awaiting imminent departure. Crews boarding and traversing a locomotive

passageway and compartment are clearly intended to

be within the scope of these regulations. Otherwise,

their provisions would be rendered meaningless and

absurd. All pre-departure work by train crews requires them to be onboard a standing locomotive, and

many situations arise which place employees in danger. For example, “Cab seats shall be securely mounted and braced. Cab doors shall be equipped with a secure and operable latching device.” 49 C.F.R.

§ 229.119(a). If a seat back fails once the engineer sits

down in preparation for, but before, movement, it is

negligence per se. 45 U.S.C. §§ 53 and 54a. Under this

regulation, the FRA holds the railroad accountable

not only when the locomotive is in motion, but also

when it is stationary. The regulation assures that

safety is required at all times when an employee is on

a locomotive.

II. ADOPTION OF THE RAILROADS’

INTERPRETATION OF THE LIA WOULD

REQUIRE THE COURT TO IGNORE

STARE DECISIS, CREATE A REGULATORY

GAP, RESULT IN ABSURD OUTCOMES,

AND OTHERWISE UNDERMINE THE

LIA’S PURPOSE.

Congress has sought to reign in railroads putting

profit ahead of employee safety by adopting the FELA.

See Gottshall, 512 U.S. at 542. Through the FELA,

Congress made railroads liable to employees injured

because of and in proportion to the railroads’ negligence. Congress has, however, found that more is

needed in certain areas, when it comes to locomotive

safety. Through the Acts, Congress has, therefore, set

minimum safety standards for locomotives.

Congress has motivated railroads to comply with

these standards by making them strictly liable to any

employee who is injured because of a locomotive that

is not in compliance. See Urie, 337 U.S. at 188-89.

Railroads can neither avoid liability by demonstrating

a lack of notice of the defect, nor reduce the amount

they owe the injured, through the employee’s comparative negligence when liability is based on noncompliance with LIA and its regulations.

Congress recognized, however, that holding railroads

strictly liable for injuries caused while making the repairs necessary to bring a locomotive into compliance

could disincentivize them from making such repairs—

the antithesis of the Acts’ purposes. Congress, there-

fore, exempted locomotives from the standards while

the railroads are in the act of bringing a locomotive into

compliance by performing maintenance or repairs at a

facility dedicated for such. See Brady, 303 U.S. at 13.

When a locomotive is in the shop, railroads can avoid

liability by demonstrating a lack of notice, and they can

reduce the amount they owe an injured employee

through the employee’s comparative negligence.

This paradigm strikes the right balance. Railroads

are motivated to bring their locomotives into compliance by being held strictly liable for any injuries caused

by a noncompliant locomotive. But they will not be

punished for injuries caused by noncompliant locomotives while they are in the process of bringing the locomotive into compliance while at a place of repair.

As discussed supra, at 11, this Court has consistently held that locomotives are exempt from the LIA only

when they are in a repair shop. In a minority of lower

courts, however, the railroads’ efforts have paid dividends, e.g., the Seventh Circuit has so expanded the

exemption so as to engulf the general rule such that

all locomotives and cars are exempted unless they are

fully assembled, through all inspections, and released

for travel.

The Seventh Circuit’s holding violates stare decisis.

In Brady, 303 U.S. at 13, this Court made clear that

only equipment at a place of repair is exempt from the

Acts’ minimum safety standards. As discussed supra,

at 4, Congress has amended the Acts several times

since then, and nothing in those amendments indicates an intent to overturn Brady. Under the doctrine

of stare decisis, this Court’s holding in Brady has “special force” that should have prevented the Seventh Circuit from issuing the decision at issue here. Hilton v.

S.C. Pub. Ry. Comm’n, 502 U.S. 197, 202 (1991).

The Seventh Circuit’s holding also creates a practical problem. As discussed supra, at 7, 21 29, under

the railroads’ interpretation of the term, locomotives would constantly be going in and out of “in

use”. Railroad employees, who are not lawyers, will

therefore be forced to guess throughout the day

whether the locomotive is safe for use. This hardly

furthers Congress’ purpose in setting minimum

safety standards or—“the protection of employees

and others by requiring the use of safe equipment.”

Lilly v. Grand Trunk W. R.R. Co., 317 US 481, 486

(1943).

Finally, the Seventh Circuit’s holding creates a

regulatory problem. As discussed supra, at 10, 13,

most locomotives are not fully assembled, through

all inspections, and released for travel. In the Seventh Circuit, then, the LIA no longer applies to most

locomotives—a paradox that certainly undermines

its purpose.

This is especially true when one considers preemption. This Court has long held that Congress has,

through the LIA, expressed its intent to broadly regulate locomotive safety. Kurns v. R.R. Friction Prod.

Corp., 565 U.S. 625, 631, 634 (2012) (citing Napier v.

Atl. Coast Line R. Co., 272 U.S. 605, 611-613 (1926).

Consequently, the LIA preempts state laws, regulations, and causes of action involving the design, construction, and/or maintenance of locomotives. Id. This

is true even for equipment that is exempted from the

minimum safety standards. Id.

The railroads may argue that interpreting the LIA

to exempt most locomotives while also preempting

state regulation is not a problem because the FELA

is sufficient to protect employees. Congress disagreed, as evidenced by it setting minimum safety

standards for locomotives in the first place. 49 U.S.C.

§ 20701, et seq. If Congress thought the FELA was

sufficient to protect employees, it would not have

wasted its time regulating locomotive safety through

the LIA.

Adopting the railroad’s proposed standard would

render large portions of the Acts superfluous, something this Court is loath to do. Cooper Indus., Inc. v.

Aviall Servs., Inc., 543 U.S. 157, 166 (2004). This

Court has also instructed against interpreting statutes in ways that create regulatory gaps. Virginia

Uranium, Inc. v. Warren, 587 U.S. __, 139 S. Ct.

1894, 1903 (2019) (rejecting proposed interpretation

that would create a regulatory gap and cripple the

government’s ability to regulate the unique risks of

uranium mining). For both reasons, the Seventh

Circuit was wrong to adopt the railroads’ conception

of “in use.”

III. CANONS OF STATUTORY INTERPRETATION AND STARE DECISIS REQUIRE

REVERSAL OF THE SEVENTH CIRCUIT.

The Acts have greatly improved railroad safety because of regulatory enforcement and worker remedies

through the FELA. The Acts were implemented over

one hundred years ago because of the massive number

of railroad workers being killed and injured each year.

Charles McDonald, The Federal Railroad Safety Program: 100 Years of Safe Railroads, Federal Railroad

Administration 1993). During the period leading up to

the Acts, safety was often sacrificed for profit and expansion. Id. Along with the Acts, Congress enacted

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

doing business from employees to their employers.”

Gottshall, 512 U.S. at 542.

Here, the Acts are, if not in form, substantive7

amendments to FELA. Urie, 337 U.S. at 189. “They

are rather supplemental to it, having the purpose

and effect of facilitating employee recovery, not of

restricting such recovery or making it impossible.”

Id. at 190. As this Court has noted, the Acts “would

take on highly incongruous character if, at the very

time they were expediting employee recovery under

the FELA, they were also contracting the scope of

compensable injuries and to that extent defeating

recovery altogether.” Id.

As with any question of statutory construction,

this Court begins “by analyzing the statutory language, ‘assuming that the ordinary meaning of that

language accurately expresses the legislative purpose.”’ Hardt v. Reliance Standard Life Ins. Co., 560

U.S. 242, 251 (2010), quoting Gross v. FBL Financial

Services, Inc., 557 U. S. 167, 175 (2009). Likewise,

“[i]t is a fundamental canon of statutory construction

that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Home Depot U. S. A., Inc. v. Jackson,

139 S. Ct. 1743, 1748 (2019); see also A. Scalia & B.

Garner, Reading Law, supra, at 167 (“The text must

be construed as a whole.”).

As noted below, the plain language of the Acts

would be rendered moot were this Court to adopt the

Seventh Circuit’s interpretation of the Acts. The

Seventh Circuit’s interpretation reads into the Acts’

language and limitations that Congress chose not to

Numerous reported cases discuss this element of the LIA

and SAA, and cases that construe the term “in use” under one act

are authoritative for purposes of construing the term under the

other. See, e.g., Holfester v. Long Island R.R. Co., 360 F.2d 369,

373 (2d Cir. 1966).

include. Further, the Seventh Circuit’s ruling directly conflicts with this Court’s previous holdings.

Those holdings have long held that “in use” for purposes of the Acts encompasses equipment until it

reaches a place of repair. Regulators have enforced

it accordingly. Because of broad, consistent enforcement by the FRA of these federal rail safety statutes

and regulations, along with their application by the

courts under FELA, rail worker injuries have been

greatly reduced. McDonald, The Federal Railroad

Safety Program: 100 Years of Safe Railroads, Federal Railroad Administration (1993).

One of the core objectives of Congress in enacting

the FELA and the Acts was to secure a uniform framework for protecting injured rail workers. See Chi. Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U.S. 472,

474 (1926). This objective has been readily accomplished. In the statutory context, stare decisis is vital

where this Court’s decisions have helped create a uniform standard. Change would dislodge settled rights

and expectations. Hilton, 502 U.S. at 202. To reinterpret the law as the railroad urges disrespects the principle of stare decisis. CSX Transp., Inc. v. McBride,

564 U.S. 685, 699 (2011).

Through this Court’s decision in Brady and others,

a largely uniform application of “in use” has allowed

courts and litigants to reliably apply the Acts in FELA

cases. The Seventh Circuit is an outlier. The overwhelming majority of state and federal courts apply

the standard articulated in Brady. This uniformity is

consistent with the remedial nature of FELA and the

plain language of the Acts. As detailed below, a departure from this long-established standard would have

vast consequences to railroad safety.

IV. EXCLUDING SWITCHING AND PREDEPARTURE ACTIVIES FROM THE

DEFINITION OF “IN USE” WOULD

RENDER THE ACTS NEARLY

INAPPLICABLE.

A. Switching And Pre-Departure Work Is A

Necessary, Predominate Work Duty Of

Train Crews And Are The Most Common

Form Of Work Duties Bringing Train

Crews In Contact With Equipment

Protected By The Acts.

Upholding the lower courts’ definition of in use—

and its negative impact on railroad safety and the

FELA in the future—is exactly the type of “highly incongruous” result against which this Court has previously admonished. See Urie, 337 U.S. at 189. The

courts below emphasized that there was “still a considerable amount of work to be done before this locomotive was ready for its next trip in interstate commerce” as the primary reason for not finding the

locomotive “in use.” LeDure v. Union Pac. R.R. Co.,

2019 WL 399924, at *4 (S.D. Ill. Jan. 31, 2019).

This “considerable amount of work” and “prep” the

lower court found dispositive is what is commonly referred to as switching, or the movement and assembly

of trains in a railroad yard before a fully made-up train

departs on the main line.8 Switching casualties are responsible for more fatalities among railroad workers

than any other kind of work activity. Gamst & Gavallla, Hazard Survey of Remote Control Locomotive OperLeDure estimated that this switching consisted of three

movements. Although it is irrelevant because this Court has interpreted “in use” to mean any work at a location other than a

place of repair, this is not a significant amount of switching work.

ations on the General System of Railroads in the United

States, at ix (2005). As this Court has previously noted

a primary reason for Congress passing the Acts was to

reduce deaths and injuries during switching and “[i]ts

success in promoting switchyard safety was stunning.” v. Hiles, 516 U.S. at 406. (emphasis added).

This Court, and others, have rejected previous efforts by the rail industry to exclude switching and

train crew work performed before a train leaves a yard

from the scope of the Acts. Union Pacific and the Seventh Circuit’s proposed change “would exclude the applications of the Act from its coverage of those activities occurring between servicing and preparing the

engine up until the time the engineer takes the controls.” Angell v. Chesapeake & O. Ry. Co., 618 F.2d

260, 262 (4th Cir. 1980). Such an interpretation contravenes the legislative purpose of the Acts and undermines its goal of uniform safety. Id.

Switching work is required for all freight transportation. Practically speaking, excluding switching and

pre-departure work from the Acts would largely eliminate the protections enacted by Congress and the

FRA, and greatly undermine the safety of train crews,

whose daily work occurs in railroad yards and at industries, not on mainlines. In fact, many train crew

members work exclusively in railroad yards. Railroad

yards are not analogous to any other transportation or

industrial facility. Reinach & Gertler, An Examination of Railroad Yard Worker Safety, Federal Railroad

Administration, at 11 (2001).9 Trains arrive and are

inspected, disassembled, and reassembled. Some aspects of newly assembled trains are inspected before

https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/2938/

ord0120.pdf

departing for another destination. Many railroad

yards also have facilities to service locomotives and

some yards have facilities to conduct major car repairs. Yards come in all sizes and shapes; and no two

yards are identical, since each is built to fit a particular geographical area or logistical need.

There are numerous hazards associated with railroad yards due to the high traffic volume, the physical

layout of the yard, and the labor-intensive nature of

switching cars. Id. at 15. These job hazards include a

high volume of large, heavy, moving equipment, such

as rail cars, locomotives, and other equipment governed by the Acts. The yards are heavily trafficked 24

hours a day. The issue of potentially hazardous equipment in heavily trafficked yards is compounded with

other conditions, such as inclement weather, poor

lighting, nighttime work, loud noise, visual distractions, and other workers and equipment moving and

working. When surveyed by the FRA, railroad workers identified poorly maintained equipment—those

subject to the Acts—as being a critical safety concern

regarding their work in railroad yards. Id. at 113.

Employees can be injured in or by a locomotive that

is moving or standing. An employee is almost twice as

likely to be injured when a locomotive is not moving.

Statistics compiled by the FRA show that from 2018 to

2021, there were 558 injuries to employees in a locomotive/train standing in the cab or walkways, and 316

injuries while a locomotive/train was moving.10 Significant work must be done by operating crews before

any train movement. Crews are assigned to build

trains in hundreds of rail yards throughout the coun-

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

castall 1.aspx.

try. They board and alight locomotives and rail cars

constantly in the yards, and are exposed daily to hazards the FRA has addressed in safety regulations. If

the narrow interpretation of “in use” by the Seventh

Circuit is applied to the Acts, the adverse safety effect

will be widespread.

Likewise, train crews performing pre-departure

work are required to “use” locomotives and railcars,

regardless of whether they are powered on or loaded.

To do this they encounter the same hazards as when

they encounter a powered locomotive or loaded car. To

perform this work they must use walkways on the locomotives and various safety appliances such as hand

brakes, pin lifters to couple/uncouple, air hoses to connect braking systems, and cables to connect electrical

systems. These hazards are equally significant as

those encountered when those same railcars are loaded, or locomotives are powered on.

B. Given The Acts’ Plain Language,

Excluding Switching And Pre-Departure

Work Would Render Much of The Acts

Superfluous.

Because of the nature of the work performed and

the remedial nature of FELA and the Acts, the majority of jurisdictions—relying on this Court’s decision in

Brady—have consistently held that equipment is “in

use” unless it is actively being repaired or is located in

a place of repair.

From a policy perspective, this makes perfect sense

because the “‘in use’ limitation gives the railroad an

opportunity to remedy hazardous conditions before

strict liability attaches to claims made by injured

workers.” Wright v. Ark. & Mo. R.R., 574 F.3d 612

(8th Cir. 2009). This rationale is consistent with this

Court’s decision in Brady, which also acknowledged

that rail equipment is no longer in use on a railroad’s

line when it “has reached a place of repair.” 303 U.S.

at 13-15. In practice it also makes sense, as many

standards incorporated under the Acts would be rendered irrelevant if “in use” was defined otherwise.

Adopting the railroad’s proposed standard would

render large portions of the Acts entirely superfluous, something this Court is loath to do. Cooper Indus., 543 U.S. at 166. But superfluity is precisely

what would occur were this Court to overturn its

precedent. For instance, the following safety provisions of the Acts would be rendered dead by the railroad’s proposed change:

• “Provisions calling for automatic couplers and

grab irons are of broader application and embrace switching operations.” U.S. v. Erie R. Co.,

237 U.S. 402, 408 (1915).

• Worker killed had viable claim under FELA and

the LIA due to violation of regulation constructed

under the LIA requiring lights. Locomotive was

involved in switching in “yard service.” Tiller v.

Atl. Coast Line R. Co., 323 U.S. 574, 577 (1945);

see current 49 C.F.R. § 229.125(b).

• Concerning handbrakes: “It is precisely because

safety in the yard during switching operations

calls for efficient hand brakes that can stop cars

and other vehicles that Congress passed the hand

brake provision.” “I will not adopt a construction

that renders a statutory provision superfluous

unless I am forced to.” Robb v. Burlington N. &

Santa Fe Ry. Co., 100 F. Supp. 2d 867, 870 (N.D.

Ill. 2000) (citing Erie, 237 U.S. at 408).

• A freight conductor can “recover for an injury resulting from failure of a grabiron” while switching. Swinson v. Chicago, St. P., M. & O. Ry. Co.,

294 U.S. 529, 531 (1935).

• 49 CFR § 231.30: Locomotives used in switching

service, outlining requirements for steps, coupling mechanisms, handholds, etc.

• 49 CFR § 229.3(b): Expressly excluding from the

LIA locomotives engaged in specific types of operations.

These are merely a few examples. Many others apply

equally to equipment inside and outside of yards and

switching locations, and, as a practical matter, are

much more important for safety reasons to train crews

during switching operations and inside railroad yards.

There is no reason why Congress would specify conditions under which the Acts apply, and at the same

time exclude those conditions through the “in use”

provision. To interpret the statute as such would violate the settled rule that this Court “must, if possible,

construe a statute to give every word some operative

effect.” Cooper, 543 U.S. at 166. Simply, most of the

Acts’ provisions apply exclusively or primarily to work

that is done while switching, pre-departure, or in railroad yards. During those activities, train crews encounter the equipment governed by the Acts. Congress

cannot have intended to enact extensive safety legislation that has no meaning. Practicality and common

sense dictate that equipment under the Acts remain

in use when a train crew encounters equipment when

they are not at a place of repair. Indeed, this is when

train crews encounter equipment while performing

their job duties as part of the operations department.

Equipment is considered in use unless it is being re-

paired or is in a place of repair. To hold otherwise

would exempt railroads from complying with the Acts’

safety requirements the majority of the time in which

transportation work is performed by train crews.

C. Union Pacific Asks This Court To

Supplant Its Definition of “In Use”

With One That Would Largely Render

the Acts Inapplicable.

The doctrine of stare decisis is most compelling

where, as here, this Court must engage in pure statutory construction. Hilton, 502 U.S. at 205. The doctrine has added force when people have acted in reliance on previous decisions. Id. at 202. Specifically,

the issue presented to this Court is whether it should

reexamine its longstanding statutory interpretation

of the Acts and their applicability under FELA. As

noted above, many of the safety provisions of the Acts

would be rendered inapplicable if the lower court’s

definition applied.

As this Court has stated, Congress did not intend

“to act so inconsistently or that, by dispensing with

the employee’s burden of proving negligence in certain

classes of Employers’ Liability Act suits, it had any

purpose to withdraw from that Act’s coverage any injury caused by the employment which was covered by

its terms.” Urie, 337 U.S. at 189. But that is precisely

the result that would occur if the meaning of “in use”

is uprooted in the dramatic fashion sought by Union

Pacific and its industry partners.

The practical impact of defining in use in congruity

with the clear language of regulations and statutes

can be seen in cases that interpreted in use consistently with Brady and this Court’s preceding decisions. Upholding the Seventh Circuit would now

overturn those cases, excluding workers from the

protections of the Acts.

This Court’s construction of the Acts rests on the

text of the statutes and its prior interpretations of

that language. Hiles, 516 U.S. at 411 n.15. This Court’s

previous decisions concerning the applicability of the

Acts during switching operations conflict with the

lower courts’ decisions, which referred to switching as

“a considerable amount of work to be done” before the

equipment could be considered “in use.” For example,

in Carter v. Atlanta & St. A.B. Ry. Co., 338 U.S. 430,

435 (1949), a train crew was performing switching activities at a paper plant, when the automatic couplers—which were required under the SAA—failed to

couple a rail car to a locomotive. The conductor was

injured trying to save the car and was struck by another piece of equipment. Id. Under the lower courts’

decision, the train would not have been considered assembled but would have been in the “additional work”

phase the lower court relied upon to determine the locomotive was not “in use”.

Similarly, adopting Union Pacific’s definition of “in

use” would conflict with this Court’s decision to apply

the LIA as in Lilly, 317 U.S. at 491. In Lilly, a train

crew member was injured while performing predeparture work on a locomotive, which was to be subsequently operated in a railroad yard. Id. at 483-84. Under the definition of “in use” created by the lower

courts, the LIA would no longer apply. This would negate the LIA’s “protection of employees and others by

requiring the use of safe equipment” that this Court

found important in Lilly. Id. at 486.

Likewise, this Court has issued numerous decisions

involving injuries that occurred when an employee

was forced to go between cars during coupling operations while railcars were being switched in yards:

• Johnson v. So. Pac. Co., 196 U.S. 1, 15 (1904):

Applying the SAA to an employee’s injuries sustained during coupling of dining car and engine

and rejecting unnecessarily narrow construction

of statute inconsistent with congressional intent.

• San Antonio & Aransas Pass R. Co. v. Wagner, 241 U.S. 476, 478 (1916): Brakeman whose

foot was caught between couplers was entitled to

relief under FELA because the SAA’s “protection

extends to men when coupling as well as when

uncoupling cars.”

• Atlantic City R. Co. v. Parker, 242 U.S. 56, 58

(1916): Jury entitled to find that railroad “had

not fully complied with law” and was liable under

the SAA and FELA where trainmen’s arm was

caught while coupling cars.

• Affolder v. New York, C. & St. L.R. Co., 339 U.S.

96, 97 (1950): Railroad employee whose leg was

amputated while “classifying, or sorting railcars”

that began moving after failing to couple could

recover under the SAA and FELA.

• O’Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384,

385–86 (1949): Railworker who was adjusting

coupler on cars while switching and was killed

when two runaway cars—the result of a broken

coupler—struck him could recover under the SAA

and FELA.

• Erie R. Co., 237 U.S. at 408: “Provisions calling

for automatic couplers and grab irons are of

broader application and embrace switching operations.”

Under the Seventh Circuit’s new test, every single one

of these cases would result in a finding of “not in use,”

and the inapplicability of the Acts.

D. Rejecting the Acts’ Plain Meaning And

This Court’s Precedent Would Dislodge

Settled Rights and Expectations,

Inviting An Inconsistent And Unsafe

Application.

“Adherence to precedent promotes stability, predictability, and respect for judicial authority.” Hilton,

502 U.S. at 202. Countless lower courts, railroad

workers, and railroads themselves have long relied

upon this Court’s application of “in use” to the Acts.

This has been the case for over a century and is evident in this Court’s body of case law on the Acts. Given

the power of stare decisis in the statutory context, to

discard or narrow this Court’s previous definition of

“in use” and its application to the Acts “now would ill

serve the goals of ‘stability’ and ‘predictability’ that

the doctrine of statutory stare decisis aims to ensure.”

McBride, 564 U.S. at 699.

“Considerations of stare decisis have special force in

the area of statutory interpretation, for here, unlike in

the context of constitutional interpretation, the legislative power is implicated, and Congress remains free

to alter” this Court’s decisions. Hilton, 502 U.S. at

202. This is particularly true “when the legislature, in

the public sphere, and citizens, in the private realm,

have acted in reliance on a previous decision, for in

this instance overruling the decision would dislodge

settled rights and expectations or require an extensive legislative response.” Id. Congress has had over a

century to correct this Court’s decision in Brady and

its cases preceding it if they disagreed. It has not done

so. In turn, railroad workers, regulators, and the rail-

roads themselves have had the benefit of the reliability and uniformity that was—and remains—essential

to the safety driven nature of the Acts.

Accepting Union Pacific and the lower courts’ narrowing of the Acts’ applicability will eradicate many of this

Court’s previous rulings, leave railroad workers exposed

to increase hazards, and leave them without the remedies provided by the Acts under FELA which have been

consistent for over one hundred years. Such can only

lead to confusion and inconsistency in lower courts.

The district court here, for instance, expressed confusion because “there is no clear-cut test to determine

when a locomotive is ‘in use.’”11 The district court went

on to explain that multifactorial assessment was necessary to determine if the LIA and its safety requirements applied, finding his minimal switching work

dispositive.12 This highlights the problem for trial

courts, railroads, regulators, and particularly railroad

workers if this Court were to eschew its existing precedent in favor of the Seventh Circuit’s decision upending that precedent.

The current test—the Acts provide safety protections except when at a place of repair—is both easily

The trial court then relied upon, Lyle v. Atchison T. & S.F.

Ry. Co., 177 F.2d 221, 222 (7th Cir. 1949), which concerned servicing a locomotive at a maintenance facility.(emphasis added). By

no stretch could it be said that LeDure was servicing the locomotive, as train crews do not service such. That is done by maintenance employees “at a place of repair” like a shop or roundhouse.

In fact, the trial court focused on the type of work LeDure

was performing and about to perform, a consideration expressly

rejected by this Court in Brady. 303 U.S. at 16 (“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.”).

understood and easy to apply uniformly and reliably.

Train crews are entitled under the Acts to expect safe

and compliant equipment when they encounter it to

perform their work, and have relied upon the Acts to

accomplish this unless the equipment has been pulled

out of service and is at a place of repair. Conversely,

the Seventh Circuit’s test would require train crews to

engage in a multifactorial assessment (either the

three factors identified by the trial court and/or a test

to determine “if considerable work” is yet to be done)

to determine if the equipment they are using is repaired, compliant, and safe.

It cannot be overstated that railroad workers, regulators, and the railroads themselves would constantly

be required to assess whether equipment is “in use”

and thus are protected afforded protection by the Acts.

Under this definition, railroads will have no incentive

whatsoever to provide equipment—that meets Congress and the FRA’s definition of safe—in railroad

yards and locations where switching is done, where

the majority of the work by train crews is performed.

This Court’s rule already provides a bright-line test

that can be applied by laymen, regulators, and judges

reliably and ensures consistent results.13 The interpretation urged by the Seventh Circuit would require an

analysis of several factors, rather than what this

Court’s precedent and the plain language of the statute

For instance, all three Circuits that have compiled pattern

jury instructions (the First, Fifth, and Eighth Circuits) have uniformly stated that Acts applies to all injuries except for those

“directly resulting from the inspection, repair and servicing of

railroad equipment located at a maintenance facility.” 1st Cir.

Pattern Jury Instr. For R.R. Empl. Pers. Inj. Cases – § 2.1 (2011).

5th Circuit Pattern Jury Instr. – Civil § 5.2 (2014); 8th Cir. Civil

Jury Instr. §§ 15.41, 15.42 (2020) (emphasis added).

have already established in a straightforward inquiry.

Doing so would invite inconsistent and conflicting applications of the Acts across the Nation’s court systems.

Most importantly, there will be dire safety repercussions; repercussions that would in essence revert back

to a dark era of railroading that existed before—and

was the reason for which—Congress passed the Acts.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully Submitted,

Lawrence M. Mann

Counsel of Record

Alper & Mann, P.C.

9205 Redwood Avenue

Bethesda, MD 20817

(202) 298-9191

mann.larrym@gmail.com

Joshua d. Mcinerney

General Counsel, BLET

Barkan Meizlish LLP

4200 Regent St, Suite 210,

Columbus, Ohio 43219

(614) 221-4221

jmcinerney@barkanmeizlish.com

Kevin Brodar

General Counsel, SMART-TD

24950 Country Club Blvd

North Olmstead, OH 44070

(216) 228-9400

kbrodar@smart-union.org

nichoLas d. ThoMpson

Casey Jones Law

3520 Cherryvale Avenue

Suite 83

Appleton, WI 54913

(757) 477-0991

nthompson@caseyjones.law

Joseph M. sayLer

David Tomenes

Bolt Hoffer Boyd Law Firm

2150 Third Avenue N

Anoka, MN 55303

(763) 406-7000

joseph.sayler@bolthoffer.com

Counsel for Amici

February 7, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.