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

No. 20-807

In the Supreme Court of the United States

BRADLEY LEDURE, PETITIONER

v.

UNION PACIFIC RAILROAD COMPANY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

JOHN E. PUTNAM

Deputy General Counsel

PAUL M. GEIER

Assistant General Counsel

for Litigation and

Enforcement

PAULA LEE

Senior Trial Attorney

Department of

Transportation

Washington, D.C. 20590

ALLISON ISHIHARA FULTZ

Chief Counsel

REBECCA S. BEHRAVESH

MICHAEL S. MASCI

Senior Attorneys

Federal Railroad

Administration

Washington, D.C. 20590

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

COLLEEN E. ROH SINZDAK

Assistant to the Solicitor

General

DANIEL TENNY

JOSHUA M. KOPPEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a locomotive is in “use” under the Locomotive Inspection Act, 49 U.S.C. 20701 et seq., when it is

stopped on a sidetrack of a railyard, undergoing preparations for the next movement in its journey.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement:

A. Legal background ..................................................... 2

B. Facts and procedural history ................................... 5

Summary of argument ................................................................. 8

Argument:

I. A locomotive is in use when it is in a railroad’s

regular employment and service .................................. 10

A. This Court’s SAA precedents demonstrate that

a locomotive that has not been withdrawn from

service is in use whether or not it is currently

hauling cars .............................................................. 13

B. The text, history, and purpose of the LIA

confirm that a locomotive is in use until it is

withdrawn for repairs or otherwise put in

reserve from service ............................................... 19

II. The arguments to the contrary lack merit.................. 24

Conclusion ................................................................................... 31

TABLE OF AUTHORITIES

Cases:

Astor v. Merritt, 111 U.S. 202 (1884) ............................... 8, 11

Baltimore & Ohio R.R. v. Groeger,

266 U.S. 521 (1925).............................................................. 16

Brady v. Terminal R.R. Ass’n:

102 S.W.2d 903, 905 (Mo. 1937),

rev’d, 303 U.S. 10 (1938) ............................................ 14

303 U.S. 10 (1938) .......................................9, 13, 14, 19, 28

Delk v. St. Louis & S.F. R.R., 220 U.S. 580 (1911)............. 15

Erlenbaugh v. United States, 409 U.S. 239 (1972) ....... 15, 16

Ford v. Fitchburg R.R., 110 Mass. 240 (1872) .................... 23

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

(III)

IV

Cases—Continued:

Page

Kurns v. Railroad Friction Prods. Corp.,

565 U.S. 625 (2012).......................................................... 3, 17

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

317 U.S. 481 (1943).................................................. 17, 18, 25

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

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

339 U.S. 913 (1950).......................................................... 7, 24

Napier v. Atlantic Coast Line R.R.,

272 U.S. 605 (1926)...................................................... 2, 4, 17

New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) ............. 11

New York Cent. R.R. v. Marcone,

281 U.S. 345 (1930).............................................................. 18

New York, New Haven & Hartford R.R. v. Bezue,

284 U.S. 415 (1932)........................................................ 18, 19

Northern Pac. R.R. v. Herbert, 116 U.S. 642 (1886) .......... 23

Phillips v. CSX Transp., Inc.,

190 F.3d 285 (4th Cir. 1999), cert. denied,

529 U.S. 1004 (2000)............................................................ 27

Richmond & Danville R.R. v. Elliott,

149 U.S. 266 (1893).............................................................. 23

Sekhar v. United States, 570 U.S. 729 (2013) ..................... 16

Shields v. Atlantic Coast Line R.R.,

350 U.S. 318 (1956).............................................................. 15

Smith v. United States, 508 U.S. 223 (1993) ....................... 29

Southern Ry. Co. v. Lunsford, 297 U.S. 398 (1936) ........... 17

Texas & Pac. Ry. Co. v. Barrett,

166 U.S. 617 (1897).............................................................. 23

Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33 (1916) ..... 15, 29

Tipton v. Atchison, Topeka & Santa Fe Ry. Co.,

298 U.S. 141 (1936)........................................................ 10, 16

United States v. Erie R.R., 237 U.S. 402 (1915) ........... 27, 28

V

Cases—Continued:

Page

United States v. Seaboard Air Line R.R.,

361 U.S. 78 (1959) ............................................................... 27

Urie v. Thompson, 337 U.S. 163 (1949) ..................... 5, 16, 25

Statutes and regulations:

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

Act of Apr. 22, 1908, ch. 149, 35 Stat. 65.............................. 18

Act of Apr. 14, 1910, ch. 160, § 2,

36 Stat. 298 .......................................................2, 3, 13, 14, 21

Act of Feb. 17, 1911, ch. 103, 36 Stat. 913 ........... 3, 10, 22, 24

§ 2, 36 Stat. 913-914 ....................................................... 3, 9

§ 2, 36 Stat. 914 ................................................................ 20

§ 6, 36 Stat. 915 ........................................................ 4, 5, 19

§ 6, 36 Stat. 915-916 ......................................................... 19

Act of Mar. 4, 1915, ch. 169, 38 Stat. 1192 ............................. 3

Act of June 7, 1924, ch. 355, § 2, 43 Stat. 659 .............. 3, 9, 21

Department of Transportation Act,

Pub. L. No. 89-670, 80 Stat. 931:

§ 6(e)(1)(E), 80 Stat. 939 ............................................... 1, 5

§ 6(e)(1)(F), 80 Stat. 939 ............................................... 1, 5

Federal Employers’ Liability Act, 45 U.S.C. 51 et seq. ......... 5

45 U.S.C. 51 ........................................................................ 5

45 U.S.C. 53 ........................................................................ 5

45 U.S.C. 54 ........................................................................ 5

Locomotive Inspection Act, 49 U.S.C. 20701 et seq. ........ 1, 2

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

Safety Appliance Act, 49 U.S.C. 20301 et seq. .................. 2, 8

49 U.S.C. 20302(a) ................................................. 4, 15, 30

49 U.S.C. 20303(a) ..................................................... 29, 30

49 U.S.C. 20303(c) ..................................................... 29, 30

49 U.S.C. 103(g) ................................................................... 1, 5

VI

Regulations—Continued:

Page

49 C.F.R.:

Pt. 229:

Section 229.9............................................................... 30

Section 229.9(c) .......................................................... 28

Section 229.21(a) .................................................. 26, 28

Section 229.33............................................................. 30

Section 229.101(b) ...................................................... 28

Section 229.119(c) ........................................................ 5

Pt. 232:

Section 232.9(a) .......................................................... 28

Miscellaneous:

ICC:

Forty-fifth Annual Report of the Director of

Locomotive Inspection (1956) .................................. 23

Fourteenth Annual Report of the Chief Inspector

Bureau of Locomotive Inspection (1925)................ 21

Inspection of Locomotive Boilers: Report of the

Commission to the Senate of the United

States in Response to Senate Resolution No.

327, August 3 (Calendar Day August 7), 1922,

73 I.C.C. 761 (Aug. 29, 1922) .................................... 20

Thirty-fifth Annual Report of the Director

Bureau of Locomotive Inspection (1946)................ 22

2 M. G. Roberts, Federal Liabilities of Carriers

(1918) ...................................................................................... 4

10 The Century Dictionary and Cyclopedia

(rev. & enl. ed. 1911) ........................................................... 11

Webster’s New International Dictionary of the

English Language (1917)................................................... 11

Webster’s Practical Dictionary (1910) ................................ 11

In the Supreme Court of the United States

No. 20-807

BRADLEY LEDURE, PETITIONER

v.

UNION PACIFIC RAILROAD COMPANY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

This case arises under the Locomotive Inspection

Act (LIA), 49 U.S.C. 20701 et seq. The United States

has a substantial interest in the regulation of the railroad industry, and Congress has granted the Secretary

of Transportation the authority to adopt regulations under the LIA and to enforce the Act administratively.

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

§ 6(e)(1)(E) and (F), 80 Stat. 939. The Secretary currently exercises that authority through the Federal

Railroad Administration, see 49 U.S.C. 103(g). At the

Court’s invitation, the United States filed an amicus

brief in this case at the petition stage.

(1)

2

STATEMENT

A. Legal Background

1. The Locomotive Inspection Act (LIA), 49 U.S.C.

20701 et seq., establishes safety and inspection requirements for locomotives in “use” on a “railroad line.” 49

U.S.C. 20701. The statute was first enacted in 1911 as

part of a broad congressional effort to “reduce the loss

of life and the injuries” caused by the dangerous conditions that prevailed on the railroads in the late 19th and

early 20th centuries. Johnson v. Southern Pac. Co., 196

U.S. 1, 19 (1904); see Napier v. Atlantic Coast Line

R.R., 272 U.S. 605, 607-608 (1926).

Congress initially addressed those railroad safety

concerns through a series of statutes enacted between

1893 and 1910 that came to be known collectively as the

“Safety Appliance Act” (SAA), now codified at 49 U.S.C.

20301 et seq. See Napier, 272 U.S. at 608. As the Act’s

name suggests, the statutes composing the SAA mandated that locomotives, trains, and cars had to be

equipped with a variety of safety appliances. Ibid. For

example, Section 2 of the 1893 SAA made it “unlawful”

for a “common carrier to haul or permit to be hauled or

used on its line any car used in moving interstate traffic

not equipped with” automatic couplers. Act of Mar. 2,

1893, ch. 196, § 2, 27 Stat. 531. And Section 2 of the 1910

SAA broadened that mandate, making it “unlawful” for

a common carrier “to haul, or permit to be hauled or

used on its line any car subject to the provisions of [the

SAA] not equipped with” a range of safety appliances,

including handholds, grab bars, ladders, and running

boards. Act of Apr. 14, 1910 (Act of 1910), ch. 160, § 2,

36 Stat. 298.

In 1911, Congress enacted the first iteration of the

LIA to address the harms posed by locomotive boilers.

3

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

That statute—known as the Boiler Inspection Act, see

Kurns v. Railroad Friction Prods. Corp., 565 U.S. 625,

629 (2012)—continued the work of the SAA and borrowed from its text. Like the 1893 SAA, the 1911 LIA

made it “unlawful” for a common carrier “to use any locomotive engine propelled by steam power in moving

interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the

same is put.” Act of 1911, § 2, 36 Stat. 913-914 (emphasis added).

In 1915, Congress amended the LIA to make it applicable to the entire locomotive, rather than just the

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

in 1924, Congress again expanded the Act’s scope, dropping the requirement that the locomotive be used in

moving interstate or foreign traffic and adding a bar on

“permit[ting]” unsafe locomotives “to be used” on a carrier’s lines. Act of June 7, 1924 (Act of 1924), ch. 355,

§ 2, 43 Stat. 659. In broadening the LIA in this manner,

Congress again borrowed from a provision of the SAA.

The 1924 LIA provided that a common carrier may not

“use or permit to be used on its line any locomotive”

that is not “in proper condition and safe to operate,”

ibid. (emphasis added), closely tracking Section 2 of the

1910 SAA, which made it unlawful for a carrier “to haul,

or permit to be hauled or used on its line any car” lacking certain safety equipment, Act of 1910, § 2, 36 Stat.

298 (emphasis added). 1

The relevant language of the LIA provision differed from the

SAA in that it did not include the term “haul.” Act of 1910, § 2, 36

Stat. 298. But a contemporary treatise explained that the term

1

4

Over the ensuing decades, Congress made significant changes to both the LIA and SAA, removing some

sections and recodifying others, but it left intact the key

provisions prohibiting a carrier from “us[ing] on” its

“line” railcars and locomotives that do not satisfy the

statutes’ safety requirements. 49 U.S.C. 20302(a)

(SAA); 49 U.S.C. 20701 (LIA). In their current iterations, both statutes provide that a “railroad carrier may

use or allow to be used” on “its railroad line” a covered

vehicle “only” when certain safety requirements are

met. 49 U.S.C. 20701; see 49 U.S.C. 20302(a).

2. Congress has provided for both administrative

and judicial enforcement of the LIA. The original version of the LIA gave the Interstate Commerce Commission (ICC) the authority to “prescribe the rules and regulations by which [a locomotive’s] fitness for service

shall be determined,” Napier, 272 U.S. at 612, and permitted the appointment of federal locomotive inspectors

whose “first duty” was to ensure that carriers were inspecting and repairing their locomotives “in accordance

with the [ICC’s] rules and regulations,” Act of 1911, § 6,

36 Stat. 915. Where an inspector found a violation of the

LIA or its implementing regulations, the Act directed

the inspector to “notify the carrier in writing that the

locomotive is not in serviceable condition, and thereaf-

“haul[]” had no independent significance in the SAA because the

term “use” “is broad enough to include any employment of a car for

any purpose in railroad service”—including hauling the car. 2 M. G.

Roberts, Federal Liabilities of Carriers 1305 (1918). And Congress

confirmed that “haul” was superfluous in later iterations of the SAA,

which dropped the term from the Act altogether. See 49 U.S.C.

20302(a).

5

ter such boiler shall not be used until in serviceable condition.” Ibid. The Act provided administrative penalties for violations. Ibid.

In 1966, Congress transferred rulemaking authority

under the LIA from the ICC to the Secretary of Transportation. Department of Transportation Act, Pub. L.

No. 89-670, § 6(e)(1)(E) and (F), 80 Stat. 939. The Secretary currently exercises that authority through the

Federal Railroad Administration (FRA), see 49 U.S.C.

103(g), which has promulgated a number of regulations

regarding locomotive safety.

Those regulations

include—as most relevant here—a requirement that

the “[f]loors of cabs, passageways, and compartments

shall be kept free from oil, water, waste or any obstruction that creates a slipping, tripping or fire hazard.” 49

C.F.R. 229.119(c).

In addition to the provision for enforcement by the

FRA, railroad employees may obtain damages for injuries caused by a violation of the LIA through a private

right of action provided by the Federal Employers’ Liability Act (FELA), 45 U.S.C. 51 et seq. See Urie v.

Thompson, 337 U.S. 163, 188 (1949). Under FELA, a

railroad is generally liable to its employees for injuries

resulting from its negligence, and the defenses of contributory negligence and assumption of the risk do not

apply. 45 U.S.C. 51, 53, 54. This Court has explained

that the LIA and SAA “are substantively if not in form

amendments to” FELA because proving a violation of

the LIA or SAA “is effective to show negligence as a

matter of law.” Urie, 337 U.S. at 189.

B. Facts And Procedural History

1. Petitioner Bradley LeDure worked as a locomotive engineer for respondent Union Pacific Railroad

Company at the railroad’s Salem, Illinois railyard. Pet.

6

App. 7. At approximately 2:10 a.m. on August 12, 2016,

petitioner reported for work at the railyard and was assigned to “reliev[e] the crew that had brought [a] train

from the north to Salem.” C.A. App. A41; see Pet. App.

7. The train had arrived “shortly before [petitioner]

came on duty,” and it was scheduled to leave for Dexter,

Missouri in approximately one hour. C.A. App. A41; see

id. at A42. Before the train could leave, petitioner had

to determine how many of the train’s three locomotives

would need to be powered on “to provide enough juice”

for the next leg of the journey, turn off the power in the

locomotives whose “juice” was not needed, and switch

out some of the cars that the locomotives would pull.

Pet. App. 8.

After determining that only one locomotive needed

to be powered on, petitioner climbed aboard the train

and tagged the first locomotive for operation and the

second locomotive for “non-operation.” Pet. App. 2. He

then “moved to the final locomotive” “to shut it down

and tag it accordingly.” Ibid. But before petitioner

could shut it down, he slipped and fell on the locomotive’s exterior walkway. Id. at 8. After petitioner got

up and turned off and tagged the locomotive, he returned to the scene of his accident, where he identified

a “slick” substance on the locomotive’s walkway. Id. at

2. Respondent later conducted its own inspection and

cleaned a “small amount of oil” from the spot. Ibid.

2. Petitioner filed this action under the LIA and

FELA, alleging—as relevant—that the locomotive on

which he fell was not “in proper condition and safe to

operate” as required by the LIA, and that respondent’s

negligence had given rise to his accident. C.A. App.

A35; see id. at A35-A36. The district court granted re-

7

spondent’s motion for summary judgment and dismissed petitioner’s claims with prejudice. Pet. App. 7,

20-21.

The district court first determined that petitioner

could not proceed under the LIA “at all” because the

court concluded that the locomotive on which petitioner

fell was not “ in use ” at the time of the accident. Pet.

App. 12, 14; see id. at 12-17. The court observed that

the courts of appeals are “all over the place” in how they

analyze whether a locomotive is in use. Id. at 14. The

district court concluded, however, that it was bound to

follow the Seventh Circuit’s precedent in Lyle v.

Atchison, T. & S. F. Ry. Co., 177 F.2d 221 (1949), cert.

denied, 339 U.S. 913 (1950), in which the court held that

a locomotive being serviced in a roundhouse was out of

use and explained that “[t]o service an engine while it is

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

of using it,” id. at 223.

The district court acknowledged that petitioner “was

not repairing the locomotive in a roundhouse like in

Lyle,” but the court found that petitioner was merely

“putting the locomotive ‘in readiness for use’ ” because

“the train was (1) stationary; (2) on a backtrack in the

depot yard; (3) had not yet been inspected or tagged;

and (4) perhaps most importantly, the engineers had

not yet assembled the cars on the train for its next use

in interstate commerce.” Pet. App. 14-15.

3. The court of appeals affirmed. Pet. App. 1-5. The

court recognized that the circuits have “various tests”

for determining when a locomotive is in use under the

LIA, id. at 3, but it concluded that “the district court

properly applied Lyle and its holding that ‘to service an

engine while it is out of use, to put it in readiness for

use, is the antithesis of using it,’ ” id. at 4 (quoting Lyle,

8

177 F.2d at 223). The court stated that a finding that

the locomotive in this case was in use would “essentially” “limit [Lyle’s] holding to say a locomotive is not

‘in use’ only when it is being repaired.” Ibid. The court

viewed that reading of Lyle as “unduly narrow,” and affirmed the district court’s conclusion that the locomotive in this case was not “in use” because it “was stationary, on a sidetrack, and part of a train needing to be assembled before its use in interstate commerce.” Ibid.

SUMMARY OF ARGUMENT

The LIA makes it unlawful for a railroad carrier to

“use” an unsafe locomotive “on its railroad line.” 49

U.S.C. 20701. Applying the ordinary meaning of the

term “use” at the time the LIA was enacted, a locomotive is in “use” when it is in the “employment” of a railroad carrier, Astor v. Merritt, 111 U.S. 202, 212 (1884),

and it is out of “use” when it has been withdrawn from

the carrier’s service for repair, storage, or retirement.

Accordingly, the locomotive on which petitioner fell was

in “use” and within the coverage of the LIA because it

had not been withdrawn from respondent’s service and

was instead standing on a side-track undergoing preparations for the next movement in its journey.

Respondent contends that the term “use” should be

given a narrower interpretation, applying only to locomotives that are currently hauling cars on a line or that

will be doing so imminently. That interpretation is contradicted by this Court’s precedents construing the

term “use” in the Safety Appliance Act, 49 U.S.C. 20301

et seq., on which the LIA is based. In a series of cases,

this Court has recognized that a rail vehicle is in “use”

on a carrier’s “line” for purposes of the SAA whenever

it is in the service of a railroad carrier, even if the vehicle is stationary on a sidetrack, awaiting assemblage

9

into a train, or otherwise between movements. See, e.g.,

Brady v. Terminal R.R. Ass’n, 303 U.S. 10, 13 (1938);

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

Those SAA cases apply with full force to the LIA because the two statutes pertain to the same subject matter and because Congress borrowed the SAA’s “use”

language when it enacted and amended the LIA. Moreover, this Court’s LIA precedents repeatedly counsel in

favor of a broad interpretation of the statute, and the

Court’s precedents interpreting an earlier version of

FELA similarly support the proposition that a locomotive is in “use” so long as it has not been withdrawn from

service by, for example, relocation to a shop for repairs.

That broad understanding of the term “use” garners

additional support from the text and history of the LIA.

As first enacted, the statute made it “unlawful” for a

common carrier “to use any locomotive engine propelled

by steam power in moving interstate or foreign traffic”

unless the locomotive was safe and had been properly

inspected. Act of 1911, § 2, 36 Stat. 913-914 (emphasis

added). The ICC, which was empowered to enforce the

Act, interpreted that iteration of the statute to cover all

locomotives that were in a carrier’s service, excluding

those in repair or reserve. When Congress amended

the LIA in 1924, it broadened the statute’s reach, deleting the qualification that locomotives must be used “in

moving interstate” traffic, and adding language making

it unlawful not just to “use” but also “to permit” the use

of unsafe locomotives. Act of 1924, § 2, 43 Stat. 659.

Those amendments further undermine respondent’s arguments to limit the statute’s scope.

The narrow understanding of “use” that respondent

advocates is also at odds with Congress’s stated purpose in enacting the LIA—“[t]o promote the safety of

10

employees and travelers upon railroads by compelling

common carriers * * * to equip their locomotives with

safe and suitable boilers and appurtenances thereto.”

Act of 1911, 36 Stat. 913. An Act designed to compel

carriers to “equip” their locomotives safely is best read

to apply to locomotives from the moment they are

placed into a carrier’s employment or service. And

adopting a narrower view would impede Congress’s

goal to promote railway safety because many locomotive accidents, including serious boiler explosions, involve locomotives that are not hauling cars at the moment of the accident.

Arguments to the contrary lack merit. The court of

appeals suggested that the locomotive on which petitioner fell was not in “use” because it was stationary, on

a sidetrack, and waiting to be assembled into a train.

But those same factors were present in many of the

SAA cases in which this Court held that a rail vehicle

was in “use.” And the court of appeals’ apparent desire

to adopt a narrow understanding of when a locomotive

is in “use” is at odds with this Court’s repeated instructions that the LIA should be read broadly. Nor is respondent correct that the Court’s SAA precedents are

somehow inapplicable to the LIA. To the contrary, this

Court has found that the “same principles apply in an

action under the [LIA] as in one under the [SAA],” Tipton v. Atchison, Topeka & Santa Fe Ry. Co., 298 U.S.

141, 151 (1936).

ARGUMENT

I. A LOCOMOTIVE IS IN USE WHEN IT IS IN A RAILROAD’S REGULAR EMPLOYMENT AND SERVICE

The LIA provides that “[a] railroad carrier may use

or allow to be used a locomotive or tender on its railroad

line only when the locomotive or tender” is, among other

11

things, “in proper condition and safe to operate.” 49

U.S.C. 20701. Because the statute does not define

“use,” the term must be understood in accordance with

the “ordinary meaning at the time Congress enacted the

statute.” New Prime Inc. v. Oliveira, 139 S. Ct. 532,

539 (2019) (citations and ellipses omitted). The major

dictionaries from the time of the LIA’s enactment

broadly defined the verb “use” as “[t]o make use of, convert to one’s service, [or] put to a purpose.” Webster’s

Practical Dictionary 481 (1910) (Webster’s); see, e.g.,

Webster’s New International Dictionary of the English

Language 2258 (1917) (“[t]o make use of; to convert to

one’s service; * * * to employ”); 10 The Century Dictionary and Cyclopedia 6674 (rev. & enl. ed. 1911) (“[t]o

employ for the attainment of some purpose or end; avail

one’s self of”).

Indeed, this Court interpreted “use” to carry that ordinary meaning at least as far back as Astor v. Merritt,

111 U.S. 202 (1884). In Astor, this Court explained that

“ ‘[i]n use’ is defined to be ‘in employment,’ ” and the

Court found that a statutory reference to clothing “in

actual use” applied not just to clothing that is being

worn “on the person at the time,” but also to the clothing in the person’s luggage that he both “intend[s]” to

wear and that he is “keeping on hand for his and [his

family’s] reasonable wants.” Id. at 212-213.

Applying that ordinary, contemporary meaning of

“use” to the LIA, a locomotive is in “use” whenever it is

in the “employment” of a railroad carrier, Astor, 111

U.S. at 213; that is, whenever it has been “convert[ed]”

to a railroad’s “service” or “put” to the railroad’s “purpose[s],” whether that is hauling cars on a line or standing in a yard being inspected or prepared for hauling,

Webster’s 481. Conversely, a locomotive is out of “use”

12

when the railroad has withdrawn the locomotive from

the carrier’s employment or service; that is, when the

carrier has relocated the engine to a shop for repairs,

placed it in a storage facility, or otherwise removed or

retired the locomotive from its regular service cycle.

And under that definition, this case is straightforward.

The locomotive on which petitioner fell was in “use” because it was being employed in the service of the railroad when the accident occurred. It is irrelevant that,

at the time of petitioner’s fall, the locomotive was serving the railroad’s purposes by undergoing preparations

for the next movement in its journey, rather than by

pulling a train.

Respondent contends that being in “use” requires

something more than simply being in the employment

or service of a railroad—namely, that the locomotive be

actively hauling cars up and down a line or that it will

be doing so imminently. Of course, the primary purpose

of a locomotive is to haul cars, and—in common parlance—people sometimes say that something is in “use”

to convey that it is currently being put to its primary

purpose. For example, a person may say that she is “using” her car to mean that she is currently driving it. But

while that is a potential meaning of “use,” it is certainly

not the only one. A taxi company might, for instance,

say that it is “using” 100 cars, meaning that it has 100

cars in its active fleet, not that its employees are currently driving all 100 of them. Or a team might say that

it is using five starting pitchers, even though only one is

currently on the field.

The question then is whether—in the context of the

LIA—in “use” should be broadly understood to mean in

the railroad’s employment or service, or whether it

should be read narrowly to refer only to locomotives

13

that are currently hauling cars. This Court’s precedents interpreting identical language in the SAA establish that the broader meaning applies, and the text, history, and purpose of the LIA all run counter to the narrower definition respondent endorses.

A. This Court’s SAA Precedents Demonstrate That A Locomotive That Has Not Been Withdrawn From Service Is

In Use Whether Or Not It Is Currently Hauling Cars

While this Court has never squarely considered the

meaning of the term “use” in the LIA, it has broadly

interpreted the identical term in the SAA to apply to

rail vehicles that are in a carrier’s employment or service, regardless of whether the vehicles are currently

moving up and down the line. Because both the SAA

and LIA address the safety of rail vehicles, and because

Congress borrowed from the text of the SAA when it

enacted the LIA, basic principles of statutory interpretation counsel that the term should be given the same

meaning across the two statutes. And this Court’s LIA

and FELA precedents confirm that understanding.

1. This Court has repeatedly held that a rail vehicle

is in “use” under the SAA when it is in a carrier’s employment or service, regardless of whether the vehicle

is stopped in a yard, undergoing preparations for its

next movement, or serving some other purpose. The

Court’s most authoritative statement of this position

came in Brady v. Terminal R.R. Ass’n, 303 U.S. 10

(1938). In that case, a railroad worker was injured by a

defective grab iron while inspecting a railcar to determine whether his employer should accept the car from

another carrier and permit it to continue to its next destination. Id. at 11-12. The worker sued for damages

under FELA based on a violation of Section 2 of the

14

1910 SAA, which made it “unlawful” for a common carrier “to haul, or permit to be hauled or used on its line,”

any car not equipped with “secure hand holds or grab

irons.” Act of 1910, § 2, 36 Stat. 298. The Missouri Supreme Court held that the worker could not recover,

reasoning that the railcar “had temporarily been withdrawn from use” for the inspection and therefore was

not “ ‘in use’ ‘on [the] line’ within the true purpose and

scope of the act.” Brady v. Terminal R.R. Ass’n, 102

S.W.2d 903, 905 (Mo. 1937) (en banc), rev’d, 303 U.S. 10

(1938).

This Court reversed. The Court held that the railcar

“had not been withdrawn from use” merely because it

had been “brought into the yard” “and placed on a receiving track temporarily pending the continuance of

transportation.” Brady, 303 U.S. at 13. The Court observed that if the inspection did not find the car “defective, it would proceed to [its] destination,” demonstrating that it “was still in use, though motionless.” Ibid.

And the Court specifically contrasted the case to one in

which “a defective car has reached a place of repair.”

Ibid.

Brady is one of several cases in which this Court has

recognized that a railcar is in “use” when it is in a carrier’s employment or service, even if it is not moving up

and down the line. For example, in Johnson v. Southern

Pacific Co., 196 U.S. 1 (1904), this Court affirmed the

application of the 1893 SAA to an accident involving a

dining car that was waiting in a railyard “to be picked

up by” the westbound train on which it would make its

next journey. Id. at 21. The court of appeals had concluded that “at the time of the accident the dining car

was not ‘used in moving interstate traffic’ ” within the

meaning of the relevant provision of the 1893 SAA. Id.

15

at 14. But this Court explained that “[c]onfessedly this

dining car was under the control of Congress while in

the act of making its interstate journey, and in our judgment it was equally so when waiting for the train to be

made up for the next trip.” Id. at 22.

The Court has similarly affirmed the application of

the SAA in cases involving railcars that were stopped

on a line or involved in switching movements in a yard.

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

36-37, 42-43 (1916) (employee was within the protection

of the SAA when he fell from a defective car that was

halted on the mainline in the course of being taken from

a spur track to the repair shop); Delk v. St. Louis &

S.F. R.R., 220 U.S. 580, 583-586 (1911) (defective train

car “was being used in interstate traffic” under the SAA

where it was involved in switching movements while

waiting for a new part). And the Court has more generally rejected the assertion that “only appliances designed to insure safety while the train is in movement

are within” the SAA’s coverage, explaining that there is

no basis for “deny[ing] the humane benefits of the Act

to those who perform dangerous work on train cars that

are not moving.” Shields v. Atlantic Coast Line R.R.,

350 U.S. 318, 324-325 (1956).

2. Under the canon of “in pari materia,” which

counsels that particular words and phrases should be

given “a consistent meaning” across statutes that “pertain to the same subject,” the term “use” should be

given the same meaning in both the SAA and LIA. Erlenbaugh v. United States, 409 U.S. 239, 243 (1972).

Both statutes refer to vehicles “used on” a carrier’s

“railroad line[],” 49 U.S.C. 20302(a), 49 U.S.C. 20701;

see p. 4, supra, and both statutes undoubtedly “pertain

16

to the same subject.” Erlenbaugh, 409 U.S. at 243. Indeed, this Court has recognized that the SAA and the

LIA share “basically the same” purpose of “protect[ing]

* * * railroad employees * * * from injury due to industrial accident,” Urie v. Thompson, 337 U.S. 163, 190191 (1949), and that the “same principles apply in an action under the [LIA] as in one under the [SAA],” Tipton

v. Atchison, Topeka & Santa Fe Ry. Co., 298 U.S. 141,

151 (1936).

It is particularly appropriate to interpret the identical term in the two statutes in the same way because

Congress clearly borrowed the LIA’s “use” language directly from the SAA. See p. 3, supra. This Court has

explained that when text “is obviously transplanted

from * * * other legislation, it brings the old soil with

it.” Sekhar v. United States, 570 U.S. 729, 733 (2013)

(citation omitted). When Congress first borrowed the

“use” language from the SAA in 1911, see p. 3, supra,

this Court had already given that text a broad interpretation in Johnson. And when Congress again borrowed

language from the SAA for the 1924 LIA amendments

to broaden the LIA’s coverage to include carriers that

“permit” unsafe locomotives “to be used,” see p. 3, supra, this Court had reiterated its broad understanding

of “use” in cases like Delk and Rigsby. The “old soil” of

those SAA decisions was therefore “transplanted” to

the LIA. Sekhar, 570 U.S. at 733 (citation omitted).

3. This Court’s LIA cases reinforce that understanding because they repeatedly emphasize the broad

reach of the Act. For example, in 1925, this Court recognized that the LIA imposes a “duty” on a carrier “to

have and keep [its] boiler in proper condition,” language

that suggests a general responsibility on the part of a

carrier to “keep” its engines safe. Baltimore & Ohio

17

R.R. Co. v. Groeger, 266 U.S. 521, 529-530. Similarly, in

a 1936 case, the Court explained that under “accepted

doctrine,” “the Act imposes upon the carrier an absolute

and continuing duty to maintain the locomotive, and all

parts and appurtenances thereof, in proper condition,

and safe to operate in active service without unnecessary peril to life or limb.” Southern Ry. Co. v. Lunsford,

297 U.S. 398, 401. And the Court has more recently reiterated that, in enacting the LIA, Congress “manifest[ed] the intention to occupy the entire field of regulating locomotive equipment.” Kurns v. Railroad Friction Prods. Corp., 565 U.S. 625, 634 (2012) (quoting Napier v. Atlantic Coast Line R.R., 272 U.S. 605,

611(1926)) (brackets in original).

Further, in at least one case, this Court has explicitly

affirmed the application of the LIA where the locomotive was not hauling cars on a track, but was instead being prepared for its next journey. Lilly v. Grand Trunk

W. R.R., 317 U.S. 481 (1943). In Lilly, a railroad employee fell on some ice on “the top of the locomotive

tender”—the vehicle that carries the locomotive’s supply of fuel and water—while the employee “was pulling

a water spout, which was at the side of the track, over

the tender’s manhole” so that he could fill the tender for

its next movement. Id. at 483. This Court held that “the

jury had a right to find a violation of the [LIA] by reason

of the presence of ice on the top of the tender,” id. at

489, and the Court cited approvingly to LIA regulations

aimed at ensuring that the surfaces on which employees

must stand are “kept free of foreign matter which would

render footing insecure,” id. at 487. Although Lilly did

not expressly consider the significance of the term

“use” in the LIA, it cited Brady in discussing the broad

18

scope of the LIA’s coverage, id. at 485, and it emphasized that the LIA, “like the [SAA], is to be liberally

construed in the light of its prime purpose, the protection of employees and others by requiring the use of

safe equipment,” id. at 486.

4. Additional support comes from this Court’s precedents interpreting an earlier version of FELA, the

statute that supplies petitioner’s cause of action in this

case. See p. 5, supra. As initially enacted, FELA applied only where both the carrier and the employee

were engaged in interstate commerce. See Act of Apr.

22, 1908, ch. 149, 35 Stat. 65. In a pair of cases, this

Court held that an employee injured while working on a

locomotive could satisfy the interstate-commerce requirement only if “the locomotive in question was, at the

time of the accident, in use in interstate transportation.” New York, New Haven & Hartford R.R. v. Bezue,

284 U.S. 415, 420 (1932) (emphasis added); see New

York Cent. R.R. v. Marcone, 281 U.S. 345, 350 (1930).

Taken together, the two cases reinforce that the interpretation of “use” articulated in the Court’s SAA cases

should also apply to locomotives under the LIA.

First, in Marcone, this Court held that FELA applied in a case in which an employee was killed immediately after oiling a locomotive that was “standing on

[a t]rack” in the roundhouse. 281 U.S. at 347. The

Court explained that the engine was “used in hauling

interstate trains” and had not been “withdrawn from

service.” Id. at 350. Then, in Bezue, the Court held that

FELA did not apply where an employee was injured

while removing the wheels of a locomotive that had been

in the repair shop for over a month. 284 U.S. at 418.

The Court explained that, unlike the locomotive in Marcone, the engine in Bezue was not “in use in interstate

19

commerce,” given the length of time it had spent in the

shop and the extent of the repair work. Id. at 420. That

distinction closely tracks the one drawn in Brady,

where this Court held that a stationary car undergoing

an inspection was in use, even though “a defective car”

that had reached “a place of repair” would not be. 303

U.S. at 13. Bezue and Marcone therefore suggest that

the interpretation of “use” in the SAA cases applies

fully to locomotives.

B. The Text, History, And Purpose Of The LIA Confirm

That A Locomotive Is In Use Until It Is Withdrawn For

Repairs Or Otherwise Put In Reserve From Service

The text, history, and purpose of the LIA confirm

that “use” should be given its broad meaning, covering

locomotives when they are in a carrier’s employment,

and excluding them only when they have been withdrawn from service for repair, reserve, or permanent

retirement.

1. When Congress initially enacted the LIA in 1911,

it treated in “use” and in “service” as synonyms, employing the terms interchangeably in mandating the

treatment of locomotives that were deemed defective.

Act of 1911, § 6, 36 Stat. 915. Specifically, the Act provided that a locomotive that an inspector had found unsafe “shall not be used until in serviceable condition,”

and then further provided that if a carrier successfully

appealed the inspector’s finding, “such boiler may be

put into service without further delay.” § 6, 36 Stat.

915-916 (emphasis added). That provision suggests that

a locomotive should be viewed as in “use” so long as it

has not been affirmatively taken out of service.

In a 1922 report to the Senate, the ICC confirmed its

understanding that a boiler is in “use” whenever it is in

the carrier’s service, contrasting locomotives in “use”

20

with those that have been withdrawn from their service

cycle because they are undergoing repairs or otherwise

being held in reserve or surplus. ICC, Inspection of Locomotive Boilers: Report of the Commission to the Senate of the United States in Response to Senate Resolution No. 327, August 3 (Calendar Day August 7), 1922,

73 I.C.C. 761, 763 (Aug. 29, 1922) (1922 ICC Report).

The ICC report first explained that it was difficult to

provide the precise number of locomotives that were

currently in violation of the LIA because “it is the ‘use’

of a locomotive not found to be in proper condition and

safe to operate, and not the condition itself, which is a

violation of the law.” Id. at 763. The ICC went on to

explain that “[t]he withdrawal of locomotives for repairs, the restoration of locomotives to service, and the

use of reserved or surplus locomotives are factors contributing uncertainty when considering the condition of

locomotives in service to which the act applies,”

strongly suggesting that the ICC viewed in “use” as a

synonym of “in service” and an antonym of in “repair[]”

or “reserve[].” Ibid.

Two years after receiving this ICC report, Congress

made two amendments to the LIA that further reinforced that a locomotive is in use so long as it has not

been affirmatively withdrawn from service for “repair[],” “reserve[],” or retirement. 1922 ICC Report

763. First, the 1924 Act deleted the qualification providing that a locomotive had to be used “in moving interstate or foreign traffic,” Act of 1911, § 2, 36 Stat. 914.

By the time of this change, Johnson had already made

clear that the 1893 SAA’s reference to cars “used in

moving interstate traffic” did not restrict the Act only

to moving vehicles, 196 U.S. at 14; see id. at 21-22, and

by deleting the “moving” language altogether from the

21

LIA (and the SAA, see Act of 1910, § 2, 36 Stat. 298),

Congress confirmed that the statute broadly applies to

any vehicle that is in service, not merely one that is

“moving” up and down the line.

Second, Congress expanded the LIA by making it

unlawful for a carrier “to use or permit to be used” any

unsafe locomotive, Act of 1924, § 2, 43 Stat. 659 (emphasis added), a change that is reflected in the current

LIA’s requirement that a carrier “use or allow to be

used” only those locomotives that are safe, 49 U.S.C.

20701 (emphasis added). At the time of the 1924 amendment, the ICC viewed the change as bringing “within

the purview of the law many steam locomotives operated by industrial concerns and lumber companies,”

which had not previously been covered by the Act because such locomotives were not “use[d]” by the carriers themselves. ICC, Fourteenth Annual Report of the

Chief Inspector Bureau of Locomotive Inspection 9

(1925).

The expanded language also means, however, that

even if respondent were correct that “use” must be

given a narrow construction, that would not restrain the

scope of the Act. If in “use” means hauling cars, then a

carrier “allow[s]” a locomotive “to be used” when it “allow[s]” the locomotive to start hauling cars—

something a carrier obviously does when it puts a locomotive into service, 49 U.S.C. 20701. Therefore, a locomotive that has been put into service is within the coverage of the Act so long as the carrier has not done anything to indicate that the locomotive is no longer “allow[ed]” to haul cars; that is, so long as the locomotive

has not been withdrawn from the carrier’s service or

employment.

22

2. The LIA’s purpose lends further support to this

understanding of the scope of the Act. Congress highlighted the statute’s purpose in its original title: “An

Act To promote the safety of employees and travelers

upon railroads by compelling common carriers engaged

in interstate commerce to equip their locomotives with

safe and suitable boilers and appurtenances thereto.”

Act of 1911, 36 Stat. 913. Because the Act was designed

to ensure that locomotives are “equip[ped]” with safe

parts, ibid., it is best read to mandate that carriers

maintain their locomotives in proper condition throughout the service cycle, not merely at the particular times

when the locomotives are actively hauling trains.

Moreover, limiting the application of the Act only to

locomotives actively hauling cars would weaken the

Act’s stated aim “[t]o promote the safety of employees

and travelers upon railroads” because many boiler accidents occur when the locomotive is stationary on a track

rather than pulling cars up and down a line. Act of 1911,

36 Stat. 913. For example, in 1946, the ICC’s annual

report on locomotive accidents described a number of

incidents in which boilers had exploded after overheating due to low water levels. See ICC, Thirty-fifth Annual Report of the Director Bureau of Locomotive Inspection 9-12 (1946). Several of the accidents involved

moving locomotives, but three explosions occurred

while the locomotives were stationary, and two of those

explosions killed the employees tasked as the “engine

watchmen.” Id. at 10. The report therefore emphasized

“the necessity of constant vigilance on the part of all

whose duties in any way concern the safety of locomotives, whether moving or standing, to maintain the water level at a known height” that will prevent overheating. Id. at 11 (emphasis added).

23

Nor was 1946 anomalous. The 1956 ICC annual report described two boiler explosions—and neither occurred while the locomotive was hauling cars up and

down a line. See ICC, Forty-fifth Annual Report of the

Director of Locomotive Inspection 6 (1956). One of the

accidents involved a “switching locomotive” that had

been “ordered for yard service” and was being readied

for that service when the explosion occurred. Ibid. The

other explosion happened on a “locomotive in freighttrain service” that “was stationary at the time of the explosion.” Ibid.; see id. at 33 (including a picture of the

boiler part that failed, and explaining that the part was

on a locomotive “attached to a freight train which was

stationary”).

Further, in the decades before the enactment of the

LIA, this Court considered at least three cases addressing locomotive boilers that exploded while the engine

was stopped or being prepared for another run. See

Texas & Pac. Ry. Co. v. Barrett, 166 U.S. 617, 618 (1897)

(rail employee injured by explosion of an engine that

had been “placed * * * on a track in the yard, with

steam up”); Richmond & Danville R.R. v. Elliott, 149

U.S. 266, 267 (1893) (switch engine exploded in a railyard, causing injury that required amputation of rail

employee’s leg); Northern Pac. R.R. v. Herbert, 116

U.S. 642, 650 (1886) (discussing Ford v. Fitchburg R.R.,

110 Mass. 240, 243 (1872), a case involving an engine

that exploded just as it was about to start). And, as petitioner explains, even today a large number of railroad

accidents continue to involve stopped locomotives, rather than locomotives that are moving. See Pet. Br. 4041. Accordingly, if the LIA applied only to locomotives

in the process of hauling cars, it would be greatly hin-

24

dered in its stated aim to “promote the safety of employees and travelers upon railroads.” Act of 1911, 36 Stat.

913.

II. THE ARGUMENTS TO THE CONTRARY LACK MERIT

Because a locomotive is in “use” under the LIA so

long as it is in the employment or service of a railroad,

the court of appeals should have held that the locomotive in this case was within the scope of the LIA. Instead, the court ruled that the locomotive was not in

“use” because it “was stationary, on a sidetrack, and

part of a train needing to be assembled before its use in

interstate commerce.” Pet. App. 4. But none of those

factors suggests that respondent had withdrawn the locomotive from its employment or service. And the court

of appeals’ reasoning is particularly flawed because, in

Brady and Johnson, this Court recognized that a rail

vehicle is still in “use” under the SAA even when it is

stationary on a sidetrack or waiting to be joined to the

train on which it will make its next trip. See pp. 13-15,

supra. Neither the court of appeals nor respondent has

offered any compelling reason for this Court to hold

otherwise here.

A. Despite citing Brady for the general proposition

that the LIA’s applicability turns on whether a locomotive is in use, Pet. App. 3, the court of appeals did not

attempt to reconcile its conclusion that the locomotive

on which petitioner fell was out of use with Brady’s

holding that a similarly situated railcar was “in use,”

303 U.S. at 13. Instead, the court relied almost entirely

on its own statement in a prior case that “to service an

engine while it is out of use, to put it in readiness for

use, is the antithesis of using it.” Pet. App. 4 (quoting

Lyle v. Atchison, T. & S. F. Ry. Co., 177 F.2d 221, 222

(7th Cir. 1949), cert. denied, 339 U.S. 913 (1950)). While

25

it is of course true that a locomotive is not in “use” if it

is being readied for “use,” that principle would foreclose

petitioner’s claim only if in “use” is synonymous with in

“motion,” a proposition that has been repeatedly rejected by this Court’s SAA precedents. See pp. 14-15,

supra. As explained, “use” is most naturally understood to mean employment or service, and nothing in

the record suggests that the locomotive in this case had

been withdrawn from respondent’s employment or service. To the contrary, respondent had just ordered petitioner to ready the locomotive for the next movement

in its journey. 2

The court of appeals also suggested that finding that

the locomotive in this case was in use would lead to an

“unduly narrow” understanding of when a locomotive is

out of use. Pet. App. 4. But the court did not offer a

definition of “use” that would support its view; indeed,

it did not define “use” at all. See ibid. And the court’s

apparent desire to construe the LIA to limit its scope is

in tension with this Court’s instruction that the LIA

should “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); see Urie, 337 U.S. at 191 (explaining that the LIA and SAA are broadly intended to

Nor is it significant that the locomotive was about to be turned

off because its power supply was not needed for the next movement.

See p. 6, supra. A carrier does not withdraw a locomotive from its

employment merely by turning it off. To return to an earlier example, a cab company may be using 100 cabs, see p. 12, supra, even if

some are currently parked. And in any event, petitioner alleges that

the locomotive in this case was still on and idling when his accident

occurred. See p. 6, supra.

2

26

“protect[] * * * railroad employees * * * from injury

due to industrial accident”).

Moreover, to the extent the court of appeals was concerned that siding with petitioner would deprive the Act

of any limits, that concern is misplaced. Properly defining “use” to mean service or employment still excludes any locomotive that has been withdrawn from the

service cycle for repair, storage, or retirement. And

that understanding dovetails neatly with the Act’s additional requirement that the locomotive be in “use” “on”

a carrier’s “railroad line,” 49 U.S.C. 20701 (emphasis

added), language that reinforces that a locomotive is not

within the LIA’s coverage where it is in a repair shop,

storage facility, or other off-line location.

There is also no need to fear that interpreting the

term “use” to mean employment or service will lead to

draconian consequences for railroads. The LIA’s implementing regulations already mandate daily inspections

to ensure that locomotives remain in safe condition

while “in use.” 49 C.F.R. 229.21(a). If a railroad discovers a violation of the LIA and its implementing regulations during one of those inspections, it can (and in fact,

must) immediately remedy the defect or withdraw the

locomotive from use, thereby protecting itself against

FELA liability.

B. Respondent’s attempts to defend the result

reached by the court of appeals are equally unavailing.

For example, respondent errs in echoing the lower

courts’ conclusion that the locomotive on which petitioner fell was not in use because “the engineers had not

yet assembled the cars on the train for its next use in

interstate commerce.” Br. in Opp. 15 (quoting Pet. App.

15). This Court’s precedents make clear that a railcar

27

is in use even if it is “waiting for the train to be made up

for the next trip.” Johnson, 196 U.S. at 22.

In suggesting otherwise, respondent apparently repeats the error made by the Fourth Circuit in Phillips

v. CSX Transportation, Inc., 190 F.3d 285 (1999) (per

curiam), cert. denied, 529 U.S. 1004 (2000), a case in

which the court of appeals concluded that a railcar “becomes ‘in use’ ” under the SAA (and therefore the LIA,

see id. at 288 n.2) only when “switching operations end,”

id. at 289. The Phillips court based its erroneous conclusion on a separate line of this Court’s precedents concerning what constitutes a “train” under certain SAA

provisions governing power brakes. Ibid. In those

cases, this Court has explained that “a train in the sense

intended” by the power-brake provisions “consists of an

engine and cars which have been assembled and coupled

together for a run or trip along the road,” and does not

include cars involved in “the various [switching] movements in railroad yards whereby cars are assembled

and coupled into outgoing trains.” United States v. Erie

R.R., 237 U.S. 402, 407-408 (1915) (emphasis added); see

United States v. Seaboard Air Line R.R., 361 U.S. 78

(1959). But the meaning of the term “train” in the

power-brake provisions has no bearing on when a car or

locomotive is in “use.” Indeed, Erie R.R. itself recognized that, while switching movements do not involve

“train[s]” under the SAA’s power-brake provisions,

they do involve “a hauling or using of cars” within the

meaning of the Act as a whole. 237 U.S. at 408 (emphasis added). 3

In order to implement this Court’s determination that the

power-brake provisions apply only to “an engine and cars which

have been assembled and coupled together for a run or trip along

3

28

Respondent is also unsuccessful in its attempts to

distinguish this Court’s relevant SAA precedents. Respondent suggests (Br. in Opp. 18) that the railcars in

Brady and Johnson were still “actively in use” while the

locomotive in this case “was being readied for use.” But

the railcar in Brady was plainly not yet “read[y] for” its

next journey, ibid., as it was in the process of being inspected to determine whether it was defective, Brady,

303 U.S. at 13. And in Johnson, while the Court assumed that the dining car was loaded and therefore

ready for its next trip, the Court emphasized that even

if the car was “empty”—and thus not yet prepared to

serve customers—it would still be within the reach of

the SAA. 196 U.S. at 21-22.

Respondent alternatively suggests (Br. in Opp. 19)

that the SAA precedents do not apply because “rail cars

and locomotives perform very different functions,” such

that a railcar can still be in use while motionless and

the road,” Erie R.R., 237 U.S. at 407, an FRA regulation provides

that “[f ]or purposes of [the brake system regulations], a train, railroad car, or locomotive will be considered in use prior to departure

but after it has received, or should have received, the inspection required for movement and is deemed ready for service.” 49 C.F.R.

232.9(a). Because that regulation’s application is expressly limited

to the power-brake regulations, it does not address how “use”

should generally be understood. Ibid. By contrast, the regulations

regarding locomotive safety demonstrate the FRA’s understanding

that a locomotive is in use and covered by the LIA whenever it is in

employment or service on a line, regardless of whether it is fully

assembled or otherwise ready to pull cars. See, e.g., 49 C.F.R.

229.21(a) (“each locomotive in use shall be inspected at least once

during each calendar day”) (emphasis added); 49 C.F.R. 229.9(c)

(addressing when a locomotive may be moved “lite”—i.e., without

cars attached—or “dead”—i.e., with its engine off—“within a

yard”); 49 C.F.R. 229.101(b) (requiring a “distinctive warning notice” when an engine has been shut down due to a defect).

29

disconnected, but a locomotive cannot. Although respondent is obviously correct that locomotives and railcars serve different functions—locomotives generally

pull trains, while the car in Brady transported freight

and the car in Johnson provided refreshments to

passengers—none of those functions is being served

when a locomotive or car is motionless or uncoupled

from a train. This Court’s SAA precedents therefore

make clear that whether a locomotive or car is currently

serving its primary function does not define whether it

is in “use.” Cf. Smith v. United States, 508 U.S. 223,

230-231 (1993) (recognizing that a person “uses” a firearm even when the firearm is not serving its “intended

purpose”).

Finally, respondent briefly suggests (Br. in Opp. 19)

that the SAA precedents are not relevant because that

statute “expressly” “addresses the question” of when a

railcar has been “taken out of service” through a provision that is absent from the LIA. But the provision respondent cites merely specifies that the SAA’s administrative penalties do not apply in certain circumstances

where a defective car is being moved “to the nearest

available place at which the repairs can be made.” 49

U.S.C. 20303(a). That provision does not define when a

railcar has been withdrawn from use such that it is outside the Act’s coverage; to the contrary, the provision

explicitly states that, while it exempts a carrier from administrative fines, it “does not relieve a carrier from liability in a proceeding to recover damages for death or

injury of a railroad employee arising from [the relevant]

movement.” 49 U.S.C. 20303(c); see Rigsby, 241 U.S. at

42-43.

Indeed, the cited provision reinforces the broad understanding of the term “use,” because its inclusion in

30

the statute suggests that—without the express

exception—a railroad carrier would be subject to administrative penalties for violating the SAA any time it

“move[d]” a non-compliant vehicle in order “to make repairs.” 49 U.S.C. 20303(a) and (c). Because a railroad

carrier violates the SAA only when it “use[s] or allow[s]” a non-compliant vehicle “to be used,” 49 U.S.C.

20302(a), the logical implication is that a vehicle may be

in “use” even when it is merely being taken to a repair

shop. 4

While the LIA does not contain a parallel provision exempting

carriers from administrative penalties for the movement of defective locomotives to a place of repair, the FRA has promulgated a

regulation governing the safe “[m]ovement of non-complying locomotives” that specifies how carriers may move a defective locomotive without being subject to a civil penalty. 49 C.F.R. 229.9 (emphasis omitted). The regulations also provide that “[a] movement

made in accordance with § 229.9 is not a use” only for the limited

“purposes of determining” eligibility for “out-of-use credit,” a form

of administrative credit that allows a carrier to delay certain periodic inspections when a locomotive has been withdrawn from use for

at least one 30-day block during the inspection cycle. 49 C.F.R.

229.33.

4

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CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JOHN E. PUTNAM

Deputy General Counsel

PAUL M. GEIER

Assistant General Counsel

for Litigation and

Enforcement

PAULA LEE

Senior Trial Attorney

Department of

Transportation

ALLISON ISHIHARA FULTZ

Chief Counsel

REBECCA S. BEHRAVESH

MICHAEL S. MASCI

Senior Attorneys

Federal Railroad

Administration

FEBRUARY 2022

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

COLLEEN E. ROH SINZDAK

Assistant to the Solicitor

General

DANIEL TENNY

JOSHUA M. KOPPEL

Attorneys