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

No. 20-807

IN THE

Supreme Court of the United States

___________

BRADLEY LEDURE,

v.

Petitioner,

UNION PACIFIC RAILROAD COMPANY,

Respondent.

___________

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

___________

BRIEF OF AMICUS CURIAE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA IN SUPPORT OF RESPONDENT

___________

ANDREW R. VARCOE

CARTER G. PHILLIPS*

STEPHANIE A. MALONEY TOBIAS S. LOSS-EATON

U.S. CHAMBER

JACOB STEINBERG-OTTER†

LITIGATION CENTER

SIDLEY AUSTIN LLP

1615 H Street, N.W.

1501 K Street, N.W.

Washington, D.C. 20062 Washington, D.C. 20005

(202) 463-5337

(202) 736-8000

cphillips@sidley.com

Counsel for Amicus Curiae Chamber of Commerce

of the United States of America

March 9, 2022

* Counsel of Record

† Mr. Steinberg-Otter is admitted only in New York

and is practicing law in the District of Columbia

pending admission to the D.C. Bar and under the supervision of principals of the firm who are members

in good standing of the D.C. Bar.

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICUS CURIAE............................ 1

SUMMARY OF ARGUMENT ...................................... 2

ARGUMENT ................................................................. 4

I.

Strict liability should be applied with care

because it can produce perverse incentives

and unfair results. ................................................. 4

II. The Court has taken care to avoid broadly

construing strict liability statutes or claims. ........ 9

III. The consequences of expanding strict liability

under the LIA militate against LeDure’s and

the government’s interpretation.......................... 12

CONCLUSION ........................................................... 18

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

Adams Express Co. v. Croninger,

226 U.S. 491 (1913) ............................................. 16

Balt. & Ohio R.R. v. Groeger,

266 U.S. 521 (1925) ............................................. 15

Collins v. S. Pac. Co.,

286 F.2d 813 (9th Cir. 1961) ............................... 15

Consol. Rail Corp. v. Gottshall,

512 U.S. 532 (1994) ............................................. 13

Credit Suisse Sec. (USA) LLC v. Simmonds,

566 U.S. 221 (2012) ............................................. 11

Dutra Grp. v. Batteron,

139 S. Ct. 2275 (2019) ................................... 11, 16

E. Airlines, Inc. v. Floyd,

499 U.S. 530 (1991) ............................................. 12

Gollust v. Mendell,

501 U.S. 115 (1991) ....................................... 10, 11

Grand Trunk W. Ry. v. Lindsay,

233 U.S. 42 (1914) ............................................... 13

Metro-N. Commuter R.R. v. Buckley,

521 U.S. 424 (1997) ............................................... 8

Miles v. Apex Marine Corp.,

498 U.S. 19 (1990) ............................................... 11

Mitchell v. Trawler Racer, Inc.,

362 U.S. 539 (1960) ............................................. 16

Pinter v. Dahl,

486 U.S. 622 (1988) ......................................... 9, 10

Shadday v. Omni Hotels Mgmt. Corp.,

477 F.3d 511 (7th Cir. 2007) ............................... 16

iii

TABLE OF AUTHORITIES—continued

Page

United States v. Carroll Towing Co.,

159 F.2d 169 (2d Cir. 1947) ................................... 6

Urie v. Thompson,

337 U.S. 163 (1949) ............................................. 13

STATUTES AND REGULATIONS

45 U.S.C. § 51 ......................................................... 13

45 U.S.C. § 53 ......................................................... 13

49 U.S.C. § 20701(1) ............................................... 14

49 U.S.C. § 20702(a)(3) ........................................... 14

49 U.S.C. § 21302(a)(1) ........................................... 14

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

§§ 51–60 ................................................................. 1

Locomotive Inspection Act, 49 U.S.C.

§§ 20701–03 ........................................................... 1

49 C.F.R. § 229.7(b) ................................................ 14

49 C.F.R. § 229.21(a) .............................................. 17

49 C.F.R. § 229.119(c) ............................................. 15

SCHOLARLY AUTHORITIES

Curtis Bridgeman, Reconciling Strict Liability

with Corrective Justice in Contract Law, 75

Fordham L. Rev. 3013 (2007)................................ 8

David Gilo & Ehud Guttel, Negligence and

Insufficient Activity: The Missing Paradigm

in Torts, 108 Mich. L. Rev. 277 (2009) ................. 7

David Haddock & Christopher Curran, An

Economic Theory of Comparative Negligence,

14 J. Legal Stud. 49 (1985) ................................... 5

iv

TABLE OF AUTHORITIES—continued

Page

Peter Jaffey, Duties and Liabilities in Private

Law, 12 Legal Theory 137 (2006) ......................... 9

Richard A. Posner, A Theory of Negligence, 1

J. Legal Stud. 29 (1972) .................................... 5, 6

George L. Priest, The Modern Expansion of

Tort Liability: Its Sources, Its Effects, and Its

Reform, J. Econ. Persps., Fall 1991, at 31 ........ 4, 5

Steven Shavell, Strict Liability Versus

Negligence, 9 J. Legal Stud. 1 (1980).................... 7

Ernest J. Weinrib, Essay, The Gains and

Losses of Corrective Justice, 44 Duke L.J.

277 (1994) .............................................................. 8

OTHER AUTHORITIES

Keith Barrow, Precision Scheduled

Railroading—Evolution or Revolution?, Int’l

Ry. J. (Sept. 17, 2019), https://bit.ly/35mzlZZ .... 17

Guido Calabresi, The Cost of Accidents: A

Legal and Economic Analysis (1970) .................... 5

Robert Cooter & Thomas Ulen, Law &

Economics (6th ed. 2011) .............................passim

Dan B. Dobbs et al., The Law of Torts (2d ed.

June 2021 update) ............................................. 6, 7

O. W. Holmes, Jr., The Common Law (1881) .......... 7

Traumatic Occupational Injuries, Ctrs. for

Disease Control & Prevention, https://bit.ly/

3IIsJDN (last updated Aug. 31, 2021) ................ 15

Ernest J. Weinrib, The Idea of Private Law

(2012) ................................................................. 8, 9

v

TABLE OF AUTHORITIES—continued

Page

Paul Ziobro, A Revolution Sweeping Railroads

Upends How America Moves Its Stuff, Wall

St. J. (Apr. 3, 2019, 10:43 AM ET),

https://on.wsj.com/3Mhj5de................................. 17

INTERESTS OF AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members

and indirectly represents the interests of more than 3

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch,

and the courts. To that end, the Chamber regularly

files amicus curiae briefs in cases, like this one, that

raise issues of concern to the nation’s business community.

Most American businesses and consumers rely directly or indirectly on the nation’s railroads to carry

goods and people throughout the United States. Reliable, efficient, and cost-effective rail transportation

is thus important to the nation’s business community.

In turn, the Chamber’s members have an interest in

the scope and application of laws that affect the cost

and efficiency of rail operations, like the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51–60, and

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

§§ 20701–03.

1 Counsel of record for all parties have been notified of amicus

curiae’s intent to file this brief and have consented to its filing.

Under Supreme Court Rule 37.6, amicus curiae states that no

counsel for any party authored this brief in whole or in part and

no entity or person, aside from amicus curiae, its members, or

its counsel, made any monetary contribution intended to fund

the preparation or submission of this brief.

2

In particular, this case concerns the Chamber because expansive interpretations of strict-liability

statutes can lead to over-deterrence and inefficiency.

That is true both in general and specifically in the

rail industry. Given the railroads’ key role in our

over-stressed supply chain, courts should take care

before imposing rules that would reduce the efficiency

of rail operations and increase costs for shippers and

consumers without increasing safety. The Chamber

and its members therefore have a substantial interest

in the proper disposition of this case.

SUMMARY OF ARGUMENT

The Court should reject the overbroad interpretation of “in use” under the LIA that petitioner LeDure

offers and the United States echoes. As Union Pacific

explains, the LIA’s text, structure, and history show

that a locomotive is “in use” only when a railroad engages it in active service as a locomotive. And LeDure’s much broader interpretation would unjustifiably expand railroads’ strict liability for LIA violations with no meaningful safety benefit.

Since its dramatic expansion during the midtwentieth century, strict liability has been criticized

for often producing inefficient and unfair results. By

ignoring the plaintiff’s degree of care, strict liability

creates no economic incentive for a plaintiff to take

precautions to avoid an accident. Likewise, strict liability can over-deter defendants from engaging in

economically valuable activity by imposing greater

liability exposure. And strict liability conflicts with

our moral intuitions by punishing even a person who

acted as carefully as possible.

LeDure’s and the government’s interpretation of

the LIA raises all these problems. Their view would

3

spur responses that impair railroad efficiency without

improving safety. For example, under their interpretation of what the LIA requires, railroads could minimize liability exposure only by moving locomotives to

(often distant) designated repair or storage points

whenever they are not in active service, even if there

were no other reason to do so—wasting fuel and crew

time and adding traffic to the national rail network.

A railroad would also have to conduct daily inspections of each locomotive parked on a siding somewhere, even if it was not planning to move the locomotive for days. Imposing such needless burdens

would impair the industry’s efforts to streamline operations and improve the national supply chain.

These problems are especially acute because an LIA

violation does not merely create negligence per se in a

FELA suit by an injured rail worker, as LeDure

claims here. Every LIA violation also creates strict

civil-penalty liability, even if no one is hurt, enforceable by the Federal Railway Administration (FRA).

These significant civil penalties only amplify the perverse incentives that LeDure’s and the government’s

position creates. And their interpretation would expose railroads to punishment no matter how careful

they were. Indeed, on their view, liability would be

unavoidable—a railroad would face civil penalties the

moment any defect appeared on any locomotive outside a repair shop. That is not fair, and it is not necessary to ensure rail-worker safety. As Union Pacific

explains, the Safety Appliance Act will often apply in

these situations, and a worker injured by actual negligence can always recover under FELA. Nor is there

any reason to think that Congress meant to leave the

rail industry at the regulator’s mercy in this way.

4

Because of strict liability’s downsides, this Court

has often taken care when construing the scope of

strict liability statutes and claims. It has done so in

various contexts—from securities laws to maritime

law to international treaties. These cases make clear

that a strict liability provision should be interpreted

narrowly, absent a clear statement of intent to impose sweeping liability from Congress. The same

reasoning applies here. LeDure’s and the government’s interpretation would dramatically expand the

scope of strict liability under the LIA and FELA and

would impose liability in situations that the railroads

cannot avoid. These practical consequences provide

even more reason to reject their interpretation of the

LIA.

ARGUMENT

I. Strict liability should be applied with care

because it can produce perverse incentives

and unfair results.

Although strict liability plays an important role in

modern legal doctrine, it also carries significant

downsides that militate against applying it broadly.

In the nineteenth century, “strict liability” referred

to a narrow “absolute liability” that applied to “specific factual circumstances” involving “egregiously abnormal behavior,” like “injuries caused by wild animals” or “by explosives.” George L. Priest, The Modern Expansion of Tort Liability: Its Sources, Its Effects, and Its Reform, J. Econ. Persps., Fall 1991, at

31, 33. But in the mid-twentieth century, the concept

expanded significantly, especially with the adoption

of workers’ compensation laws and products liability.

See id. at 33–37. This expansion was driven in part

by a desire to incentivize greater care by potential

5

tortfeasors and ensure compensation for injured parties. See id. at 37. But strict liability also brings disadvantages. It can create perverse incentives, and it

can produce unfairness by punishing regardless of

fault.

1. Choosing a liability rule means choosing an incentive structure. Tort law deals with this question

in addressing how to respond to accidents, which are

an inevitable part of life. The answer focuses on efficiency—maximizing society’s overall welfare—which

is, in turn, a function of the sum of the costs of accidents and the costs of preventing them. See, e.g.,

Guido Calabresi, The Cost of Accidents: A Legal and

Economic Analysis 26 (1970); Richard A. Posner, A

Theory of Negligence, 1 J. Legal Stud. 29, 33 (1972).

The law maximizes welfare by imposing liability

rules to encourage the least costly behaviors. Those

behaviors consist of how parties engage in their activities (the caution they exercise) and how often they

engage in them (their activity levels). On both fronts,

strict liability rules often create the wrong incentives.

With an efficient standard of care—the one that

minimizes the sum of accident and prevention costs—

negligence rules in general incentivize both parties to

take precautions that maximize welfare. See David

Haddock & Christopher Curran, An Economic Theory

of Comparative Negligence, 14 J. Legal Stud. 49, 59–

63 (1985); Robert Cooter & Thomas Ulen, Law &

Economics 204, 208–09 (6th ed. 2011). Faced with

liability risk, the defendant takes all—and only

those—precautions whose costs are lower than the

expected cost of an accident, which is the extent of

the harm weighted by its probability. See Cooter &

Ulen, supra, at 204–07. This is Judge Hand’s famous

“BPL” formula that first-year torts students learn:

6

The ideal degree of care reflects the probability of an

injury, the potential harm, and the burden of adequate precautions. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). And when

the defendant takes such precautions, the plaintiff

bears the cost of an accident, so the plaintiff is incentivized to take precautions as well. See Cooter &

Ulen, supra, at 204, 207.

Negligence rules thus encourage both parties to

take precautions that minimize total costs. Strict liability, however, distorts these incentives. A defendant is liable regardless of precautions. See id. at

202–03. And because avoiding a loss and receiving

compensation for it are economically identical, a

plaintiff has no economic incentive to reduce the

probability or severity of accidents. See id. at 202–

05; Posner, supra, at 33, 40. This is true even if it is

inexpensive—indeed, even if it is the least expensive

course—for the plaintiff to take a given precaution.

Thus, strict liability often fails to encourage actions

that maximize overall welfare. But when applied

narrowly, and particularly when paired with a contributory or comparative negligence defense, strict

liability can appropriately encourage both parties to

take care.

2. Strict liability can also incentivize parties to engage in certain activities to a greater or lesser degree

than is socially beneficial. “[C]ourts often take into

account the benefits and costs of a particular activity,” and thus may “reject liability for injury-causing

activities” in cases where “deterrence is undesirable.”

Dan B. Dobbs et al., The Law of Torts § 14 (2d ed.

June 2021 update).

Under any liability rule, “someone must bear the

cost of accidental harm.” Cooter & Ulen, supra, at

7

212. With a negligence rule, the defendant avoids liability merely by taking cost-efficient precautions, so

it has no incentive to consider how its activity levels

affect the probability of accidents and thus their expected costs. See Steven Shavell, Strict Liability Versus Negligence, 9 J. Legal Stud. 1, 2–9 (1980); Cooter

& Ulen, supra, at 212. The plaintiff, as the residual

bearer of accident costs, has incentives to decrease

the activity level. See Shavell, supra, at 2–9; Cooter

& Ulen, supra, at 212. The opposite is true under

strict liability. The defendant must bear the costs of

every accident, so it benefits from decreasing its liability exposure by reducing its activity level, while

the plaintiff has no comparable incentive.

See

Shavell, supra, at 2–9; Cooter & Ulen, supra, at 212.

In turn, choosing a liability rule for a given situation depends on whether relatively higher levels of

the plaintiff’s activity and lower levels of the defendant’s activity maximize welfare, or vice versa. See

David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108

Mich. L. Rev. 277, 290–91, 315–17 (2009). That

means that strict liability can create perverse incentives by discouraging a valuable activity—here, railroad transportation.

3. Finally, strict liability sits uncomfortably with

basic principles of fairness. As Justice Holmes long

ago observed, without fault—without conduct that

the law marks for condemnation—“[t]he general principle . . . is that loss from accident must lie where it

falls.” O. W. Holmes, Jr., The Common Law 94

(1881); cf. Dobbs et al., supra, § 12 (“Whatever is to be

said of strict liability theories of justice, the great majority of tort cases turn on some kind of perception

that the defendant is at fault in a significant way.”).

8

Strict liability departs from that principle by imposing liability regardless of fault—indeed, it imposes

liability even if the defendant could do nothing to

prevent the harm.

Although the LIA also implicates civil penalties, as

discussed below, a FELA suit like this one is essentially a tort claim. See generally Metro-N. Commuter

R.R. v. Buckley, 521 U.S. 424, 438–44 (1997). Tort

claims are a form of private law—they concern “justice between individuals, or what Aristotle called

‘what is just in men’s dealings with one another.’”

Curtis Bridgeman, Reconciling Strict Liability with

Corrective Justice in Contract Law, 75 Fordham L.

Rev. 3013, 3013 (2007) (citation omitted). Our legal

system addresses such person-to-person dealings in

light of the principle that each party has “equal moral

status” and thus “self-determining agency.” Ernest J.

Weinrib, Essay, The Gains and Losses of Corrective

Justice, 44 Duke L.J. 277, 292 (1994).

Strict liability violates this principle, as it focuses

“on only one of the parties”: the plaintiff. Ernest J.

Weinrib, The Idea of Private Law 177 (2012). The

plaintiff receives a complete “immunity from the effects of the actions of others,” while the defendant is

“liable for any penetration of the plaintiff’s space.”

Id. Thus, strict liability transforms a defendant’s duty into a mere “reflex” of the plaintiff’s right to be free

from harm, without considering the moral justification of the defendant’s conduct or position. Id. at 124.

Indeed, strict liability provides no “intelligible” duty

to which a defendant can conform its conduct. Id. at

179. “Only retrospectively through the fortuity of

harm does it then turn out that the defendant’s act

was a wrong”—“wrong” in the sense that the defendant is liable, irrespective of fault. Id. “Thus[,] the in-

9

terests of the plaintiff unilaterally determine the contours of what is supposed to be a bilateral relationship of equals.” Id. at 177.

This result conflicts with basic moral precepts. “It

is at least on the face of it difficult to accept that

someone can have a duty to do something that is beyond him or, in other words, that he can be liable on

the basis of his wrongdoing when he was not at

fault.” Peter Jaffey, Duties and Liabilities in Private

Law, 12 Legal Theory 137, 153 (2006).

II. The Court has taken care to avoid broadly

construing strict liability statutes or

claims.

Courts recognize strict liability’s downsides. Indeed, this Court has often heeded these considerations to narrowly interpret statutes and claims imposing strict liability, absent clear contrary guidance

from Congress.

Pinter v. Dahl epitomizes this approach. The Court

held there that an “in pari delicto defense is available

in a private action brought under § 12(1) of the Securities Act of 1933 for the rescission of the sale of unregistered securities.” 486 U.S. 622, 624–25, 633

(1988) (citation omitted). After noting that the “statute creates a strict liability offense,” the Court

stressed that in pari delicto, which bars recovery if

the plaintiff engages in “wrongful conduct,” furthers

“the statutory goal of deterring illegal conduct.” Id.

at 632, 634. This deterrence rationale for the Court’s

decision reflects strict liability’s first economic downside. Construing § 12(1) to provide a defense where

plaintiffs fall short of a level of care encourages them

to meet that standard, lest they lose the right to compensation for their losses. In pari delicto thus serves

10

essentially as a contributory-negligence defense, mitigating strict liability’s inefficiencies. Cf. Cooter &

Ulen, supra, at 209.

Pinter also invoked the second economic downside

of strict liability—over-deterrence of socially desirable activities—in interpreting narrowly who is a

“seller” subject to § 12(1). The Court rejected the argument that § 12(1) applies to anyone “whose participation in the buy-sell transaction is a substantial factor in causing the transaction,” like accountants and

lawyers. 486 U.S. at 648–51 (citation omitted). The

Court reasoned that ruling otherwise “risks overdeterring activities related to lawful securities sales.”

Id. at 654 n.29. “Because strict liability is involved,

once a person became involved in the” sale of a security, “even peripherally, it would be impossible to

avoid the risk of liability.” Id. Thus, “[i]mposing a

strict liability rescission remedy on those who are only tangentially involved with the sale might result in

less and poorer information to investors, rather than

more and better information.” Id. This concern

about over-deterrence similarly reflects the Court’s

effort to avoid interpretations that would expand the

application—and thus the disadvantages—of strict

liability.

The Court has also emphasized the importance of

limiting strict liability’s reach in narrowly interpreting § 16(b) of the Securities and Exchange Act of

1934. In ruling on statutory standing to sue for insider trading, Gollust v. Mendell noted § 16(b)’s

strict-liability standard as a persuasive reason to cabin the scope of “beneficial owner[s]” subject to suit.

See 501 U.S. 115, 122 (1991) (alteration in original).

“Because the statute imposes ‘liability without fault

within its narrowly drawn limits,’” the Court has

11

“been reluctant to exceed a literal, ‘mechanical’ application of the statutory text in determining who may

be subject to liability, even though in some cases a

broader view of statutory liability could work to eliminate an ‘evil that Congress sought to correct . . . .’”

Id. (citations omitted); see also Credit Suisse Sec.

(USA) LLC v. Simmonds, 566 U.S. 221, 227–28

(2012) (equitable tolling under § 16(b) was “especially

at odds with a provision that imposes strict liability”).

In federal common law, too, this Court has noted

that strict liability is a reason to cabin a claim’s

scope. Thus, it concluded in Dutra Group v. Batteron

that a plaintiff suing for unseaworthiness under general maritime law—a strict-liability claim—cannot

recover punitive damages. See 139 S. Ct. 2275, 2278,

2281 (2019). In so ruling, the Court cited the unavailability of punitive damages in negligence suits

under the Jones Act, which “adopts the remedial provisions of FELA,” id. at 2284—under which LeDure

sued here. The Court was “particularly loath to impose more expansive liabilities on a claim governed

by strict liability than Congress has imposed for comparable claims based in negligence.” Id. at 2286; see

also Miles v. Apex Marine Corp., 498 U.S. 19, 32–33

(1990) (rejecting recovery for loss of society in unseaworthiness claims, which would “sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress

has allowed in cases of death resulting from negligence”).

And the Court has applied similar reasoning to reject broad applications of international treaties.

Eastern Airlines, Inc. v. Floyd interpreted a treaty

provision, Article 17 of the Warsaw Convention,

which “sets forth conditions under which an interna-

12

tional air carrier can be held liable for injuries to passengers.” 499 U.S. 530, 532–33 (1991). The Court

held that Article 17 does not “allow[] recovery for

mental or psychic injuries unaccompanied by physical

injury or physical manifestation of injury.” Id. at

533. In explaining why this construction better furthers “uniformity of rules” across signatory countries,

the Court invoked the specter of strict liability. Id. at

552. A related international agreement “subjects international carriers to strict liability for Article 17

injuries sustained on flights connected with the United States.” Id. And the Court “ha[d] no doubt that

subjecting international air carriers to strict liability

for purely mental distress would be controversial for

most signatory countries.” Id.

Thus, in various contexts, the Court has considered

the fact that a claim leads to strict liability to carefully cabin that claim’s reach. Sometimes, the Court explicitly invokes one or more of strict liability’s disadvantages. Other times, the Court simply notes that

strict liability calls for strict construction. Either

way, the Court has made clear that expansively applying strict liability is not favored.

III. The consequences of expanding strict liability under the LIA militate against LeDure’s and the government’s interpretation.

By treating a locomotive as “in use” whenever it is

not in “a designated place of maintenance or repair,”

LeDure’s and the government’s interpretation would

greatly expand the LIA’s reach. Pet’r Br. 24; see also

U.S. Br. 8 (arguing that “a locomotive is in ‘use’ when

it is in the ‘employment’ of a railroad carrier, and it is

out of ‘use’ when it has been withdrawn from the carrier’s service for repair, storage, or retirement” (cita-

13

tion omitted)). In turn, their position would significantly increase the number of FELA claims governed

by a strict-liability standard instead of a negligence

standard. It would also expose railroads to strictliability civil penalties in countless ordinary situations, some of which are unavoidable—and where imposing strict liability would not advance Congress’s

goal of “protecti[ng] . . . railroad employees.” See Urie

v. Thompson, 337 U.S. 163, 191 (1949). Their position would thus maximize the negative consequences

of strict liability discussed above, impeding the nation’s rail transportation network without improving

safety. These consequences confirm what the ordinary tools of statutory interpretation show: The

broader interpretation cannot be right.

FELA generally allows rail workers to sue for onthe-job injuries caused by negligence. See 45 U.S.C.

§ 51. FELA is not “a workers’ compensation statute”

and “does not make the employer the insurer of the

safety of his employees.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994). But as this Court has

interpreted it, FELA allows a claim of negligence per

se—creating strict liability—if the railroad violates a

rail-worker safety law like the LIA. See Urie, 337

U.S. at 188–89. And while a comparative-negligence

defense could mitigate strict liability’s distorted incentives, see Cooter & Ulen, supra, at 209, a FELA

defendant cannot raise such a defense to a negligence

per se claim, 45 U.S.C. § 53; Grand Trunk W. Ry. v.

Lindsay, 233 U.S. 42, 49–50 (1914). So in every

FELA case where the plaintiff can claim negligence

per se, a pure strict-liability rule governs.

Nor is FELA the only avenue for liability under the

LIA. An LIA violation also exposes a railroad to substantial civil penalties by the Federal Railroad Ad-

14

ministration (FRA). See 49 U.S.C. § 21302(a)(1). Liability for these penalties is strict as well: The violation need not be willful, negligent, or repeated, and

no injury is required. See 49 C.F.R. § 229.7(b). The

FRA can assess a separate penalty for each day that

a violation exists, and each penalty can exceed

$30,000. See id.

LeDure’s and the government’s position would thus

dramatically expand railroads’ strict-liability exposure under the LIA. And by doing so, it would encourage inefficient behaviors that would impede the

smooth flow of interstate commerce over the nation’s

rails.

For example, the LIA prohibits a railroad from using or allowing the use of a locomotive that is not “in

proper condition.” 49 U.S.C. § 20701(1). A railroad

must thus “repair[ ] every defect that is disclosed by

an inspection before a defective locomotive . . . is used

again.” Id. § 20702(a)(3). If every locomotive not in a

designated place of repair or storage is “in use,” as

LeDure and the government claim, then a railroad

violates the LIA—and is exposed to strict-liability

penalties—the moment a defect appears. But the

railroad equally violates the LIA by moving a noncompliant locomotive to a repair shop after it discovers the defect, even if the locomotive is towed “dead,”

since the LIA has no safe-harbor for such movements.

See Resp. Br. 22.

Thus, a railroad can minimize its strict-liability exposure only by preemptively moving otherwise-idle

locomotives to designated repair or storage locations,

wasting fuel and crew time in the process. And doing

so could even introduce safety risks by moving heavy

equipment that would otherwise sit still. These are

15

precisely the kinds of perverse incentives that overbroad applications of strict-liability can create.

What is more, since a railroad cannot constantly

shuttle every single locomotive to repair or storage,

LeDure’s and the government’s interpretation would

produce unavoidable LIA violations—with accompanying strict-liability exposure—whenever a defect

appeared. That would be true even if the locomotive

were (as here) being prepared for use rather than in

active use. Indeed, as Union Pacific points out, LeDure’s and the government’s reading of “in use,”

combined with LeDure’s view that even exterior

walkways must be kept “free from . . . water,” 49

C.F.R. § 229.119(c), would mean that a railroad violates the LIA whenever rainwater pools on an exterior walkway. Resp. Br. 47. This result is neither efficient nor fair.

Imposing strict liability in this kind of situation also goes well beyond the LIA’s purpose. Like its predecessor, the Boiler Inspection Act, the LIA seeks to

make locomotives “safe to operate . . . in moving traffic without unnecessary peril to life or limb.” Balt. &

Ohio R.R. v. Groeger, 266 U.S. 521, 523 (1925). But a

stationary, unpowered locomotive is no more dangerous than any other kind of rail vehicle—or than many

other work sites where an employee could potentially

slip and fall, whether indoors or outdoors. 2 The Safety Appliance Act would not make a railroad strictly

liable for a spot of liquid on a boxcar, e.g., Collins v.

S. Pac. Co., 286 F.2d 813, 814–16 (9th Cir. 1961), and

2 See Traumatic Occupational Injuries, Ctrs. for Disease Control

& Prevention, https://bit.ly/3IIsJDN (last updated Aug. 31,

2021) (noting that slips, trips, and falls caused 27% of all nonfatal workplace injuries resulting in days away from work in

2019).

16

employers in other industries are not strictly liable

for such workplace hazards. Expanding strict liability this way thus exceeds the LIA’s proper scope and

sits uncomfortably with the SAA’s adjacent liability

regime. Cf. Dutra Grp., 139 S. Ct. at 2286 (declining

to impose “more expansive” strict liability “than Congress has imposed for comparable claims”).

To be sure, the LIA violations that would inevitably

result from LeDure’s and the government’s interpretation should rarely cause an injury that could lead to

a FELA suit. And the FRA could forbear imposing

penalties. But the Court should not assume that the

early-twentieth-century Congress that enacted the

LIA intended either to leave the industry at the regulator’s mercy or to impose unavoidable liability. The

“risk of an unavoidable liability that might be crushing gives the courts pause,” and properly so. Shadday v. Omni Hotels Mgmt. Corp., 477 F.3d 511, 518

(7th Cir. 2007). Indeed, in another railroad case, the

Court found it “not conceivable” that Congress meant

to make rail carriers “liable for unavoidable loss or

damage [to cargo] . . . due to uncontrollable forces.”

Adams Express Co. v. Croninger, 226 U.S. 491, 506

(1913); see also Mitchell v. Trawler Racer, Inc., 362

U.S. 539, 569 (1960) (Frankfurter, J., dissenting)

(“[T]he unreasonableness of imposing liability on the

vessel for injuries occasioned by the unavoidable consequences of its proper operation need not therefore

be ignored.”). Likewise here, the Court should decline to adopt an interpretation that imposes strict

liability that will inevitably attach to ordinary and

safe rail operations.

LeDure’s position would also create other pointless

burdens. Under FRA’s rules, “each locomotive in use

shall be inspected at least once during each calendar

17

day.” 49 C.F.R. § 229.21(a). Under LeDure’s view of

“in use,” a railroad must thus inspect almost every

locomotive every day—even if the locomotive would

otherwise sit unused on a siding or in a yard for days

on end, as is common. A failure to do so would expose

the railroad to daily civil penalties. This is not an efficient result. There is no reason a railroad should

inspect a locomotive on Monday, Tuesday, Wednesday, and Thursday, if it would otherwise sit inert and

untouched on a side track until Friday. And the only

way to avoid this burden (or the risk of penalties for

non-compliance) would again be to shuttle otherwiseidle locomotives to designated repair or storage locations, even for short periods. That is equally wasteful, and less safe.

These negative effects of broadly interpreting the

LIA would be particularly harmful because these

kinds of wasteful measures—like moving locomotives

to distant repair points instead of keeping them close

at hand—conflict with the industry’s move toward

precision-scheduled railroading, or PSR. PSR is a

model of rail service that seeks to make the national

supply chain more efficient. In essence, instead of

waiting to build fewer, longer trains, PSR keeps rail

cars moving. See Paul Ziobro, A Revolution Sweeping

Railroads Upends How America Moves Its Stuff, Wall

St. J. (Apr. 3, 2019, 10:43 AM ET), https://on.wsj.com/

3Mhj5de. This approach yields many benefits. It

“consolidate[s] networks, abandon[s] less-efficient

services and lines, and shift[s] traffic” to “run[] directly from origin to destination.” Keith Barrow, Precision Scheduled Railroading—Evolution or Revolution?, Int’l Ry. J. (Sept. 17, 2019), https://bit.ly/

35mzlZZ. When supply chains are already stressed,

it makes no sense to adopt liability rules that will

18

further burden those systems and disrupt interstate

commerce for businesses and consumers.

In short, adopting LeDure’s and the government’s

interpretation of the LIA would significantly expand

strict-liability tort suits and civil penalties. That expansion would encourage inefficient responses that

do not improve safety. Their interpretation would

also lead regularly to unavoidable liability, which is

neither efficient nor fair. And it would conflict with

the industry’s efforts to improve efficiency, flexibility,

and resilience at a time when the nation’s supply

chains are already heavily stressed. For these reasons—and those that Union Pacific explains—the

Court should reject LeDure’s and the government’s

position.

CONCLUSION

The Court should affirm the judgment below.

Respectfully submitted,

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

CARTER G. PHILLIPS*

TOBIAS S. LOSS-EATON

JACOB STEINBERG-OTTER

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Amicus Curiae Chamber of Commerce

of the United States of America

March 9, 2022

* Counsel of Record