Amicus Curiae Brief — Joseph Brent Mattingly, Petitioner v. R.J. Corman Railroad Group, LLC, et al.

No. 2-1056

IN THE

Supreme Court of the United States

JOSEPH BRENT MATTINGLY,

v.

Petitioner,

R.J. CORMAN RAILROAD GROUP, LLC

R.J. CORMAN RAILROAD SERVICES, LLC, AND

R.J. CORMAN RAILROAD COMPANY/MEMPHIS LINE

AKA R.J. CORMAN RAILROAD COMPANY/MEMPHIS LINE, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

Brief Amici Curiae by the Sheet Metal, Air, Rail

Transportation Workers-Transportation Division,

the Brotherhood of Locomotive Engineers and

Trainmen, and the Academy of Rail Labor Attorneys

in Support of Petition for a Writ of Certiorari

ANDREW J. THOMPSON

Shapero Roloff Co., LPA

1111 Superior Ave. East

Suite 1310

Cleveland, OH 44114

(216) 781-1700

athompson@shaperoroloff.com

LAWRENCE M. MANN

Counsel of Record

Alper & Mann, P.C.

9205 Redwood Avenue

Bethesda, MD 20817

(202) 298-9191

mann.larrym@gmail.com

JOSHUA D. MCINERNEY,

General Counsel, BLET

Wentz, McInerney, Peifer

&Petroff, LLC

14 E. Gay Street, 4th Floor

Columbus, OH 43215

(614) 756-5566

jmcinerney@lawforlabor.com

KEVIN BRODAR

General Counsel, SMART-TD

6060 Rockside Woods Blvd. N.

Suite 325

Independence, OH 44131-2378

(216) 228-9400

kbrodar@smart-union.org

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

49261_Ltrhd.indd

1

6/11/08

12:44:09 AM

i

TABLE OF CONTENTS

Page

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

iii

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

1

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

2

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

4

A. Corman Services is a “Common Carrier”

Subject to the Federal Employers’

Liability Act ...............................................

4

B. Other Federal Railroad Safety Laws are

Implicated by the Decision Below.............

9

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

12

iii

TABLE OF AUTHORITIES

Page

Cases

Atchison, Topeka & Sante Fe Ry. Co. v. Buell,

480 U.S. 557 (1987) .........................................

4

Brady v. Terminal Railroad Association,

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

5

Consolidated Rail Corp. v. Gottshall,

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

5

Consolidated Rail Corp. v. United

Transportation Union,

947 F.Supp. 168 (E.D. Pa. 1996) ....................

11

Dagon v. BNSF Railway Co.,

19-CV-00417 (S.D. Ill., July 21, 2020) ...........

9

(GZDUGVY3DFLÀF)UXLW([SUHVV&RPSDQ\,

390 U.S. 538 (1968) .........................................

7

Kieronski v. Wyandotte Terminal Railroad Co.,

806 F.2d 107 (6th Cir. 1986) ...........................

6, 7

Lone Star Steel Co. v. McGee,

380 F.2d 640 (5th Cir. 1967) ...........................

6

Mattingly v. R.J. Corman R.R. Group, LLC,

90 F.4th 478 (6th Cir. 2024) ...........................

7, 8

McBride v. CSX Transportation, Inc.,

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

5

N.C.R.R. Co. v. Zachary,

232 U.S. 248 (1914) .........................................

9

Shenker v. Baltimore & Ohio Railroad Co.,

374 U.S. 1 (1963) .............................................

4

Sinkler v. Missouri Pac. R. Co.,

356 U.S. 326 (1958) .........................................

4, 9

Smith v. Rail Link, Inc.,

697 F.3d 1304 (10th Cir. 2012) .......................

5

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. State of California,

297 U.S. 175 (1936) .........................................

6

Wells Fargo and Company v. Taylor,

254 U.S. 175 (1920) .........................................

6

Statutes

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

2

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

5

45 U.S.C. § 57 ...................................................... 6, 8

49 U.S.C. § 103(c) ................................................

4-5

49 U.S.C. § 20101 ................................................ 4, 9

49 U.S.C. § 20102 ................................................

10

49 U.S.C. § 20109 ...................................... 2, 3, 4, 11

Regulatory Authorities

49 C.F.R. Parts 200-299 ......................................

9

49 C.F.R. Part 213...............................................

10

49 C.F.R. Part 214, Subpart B ...........................

3

49 C.F.R. Part 215...............................................

10

49 C.F.R. Part 229...............................................

10

49 C.F.R. Part 236...............................................

10

49 C.F.R. Part 237............................................... 3, 10

49 C.F.R. § 237.31 ...............................................

10

Other Authorities

Federal Rail Safety Act of 1970,

Pub.L.No. 91-458, Sec. 101 .............................

4

Federal Rail Safety Authorization Act of 1980,

Pub.L.No. 96-423, reprinted in 1980

U.S.C.C.A.N. 3830, 3832.................................

11

1

BRIEF OF AMICI CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

I. INTERESTS OF AMICI CURIAE 1

The Sheet Metal, Air, Rail Transportation Workers

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

(“RLA”) for the crafts or classes of locomotive engiQHHUV FRQGXFWRUV EUDNHPHQ ÀUHPHQ VZLWFKPHQ

hostlers, and other train service employees employed

by freight, passenger and commuter rail carriers operating in the United States. SMART-TD represents

more than 120,000 employees.

The Brotherhood of Locomotive Engineers and

Trainmen (“BLET”) is the duly recognized collective

bargaining representative under the RLA for the

crafts or classes of locomotive engineers, conductors,

EUDNHPHQ ÀUHPHQ VZLWFKPHQ KRVWOHUV DQG RWKHU

train service employees employed by freight, passenger and commuter rail carriers operating in the United States. BLET represents more than 51,500 employees in the railroad industry.

The crafts or classes of employees represented by

SMART-TD and BLET comprise the crews who operate trains in the United States and are among those

persons who are affected by this matter.

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

professional association with members nationwide

Pursuant to this Court’s Rule 37.6, amicus curiae states that

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

party and that no person or entity other than amicus curiae and

its counsel made a monetary contribution to the preparation or

submission of this brief. Pursuant to Rule 37.2, each of the parWLHVUHFHLYHGQRWLFHRIRXULQWHQWLRQWRÀOHWKLVEULHI

1

2

who represent railroad employees and their families

in personal injury and wrongful death cases under the

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

§§ 51-60. The members of ARLA represent an overwhelming majority of employees seeking recovery under the FELA, and the Federal railroad whistleblower

law. (49 U.S.C. § 20109). A primary purpose of ARLA

is the promotion of rail safety for railroad employees

and the general public.

The potential for common carriers to be held liable

under the FELA for failing to provide a safe workplace

and pay damages to injured employees is an important factor in keeping the industry safe. The vast majority of railroad employees impacted by this case,

who would be subjected to more dangerous conditions

resulting from elimination of FELA coverage for employees performing duties necessary for railroad operations, are represented by the amici. The interests

common to the amici in this matter include the preservation of rights under the FELA for all employees of

common carriers, as well as coverage under other laws

and regulations intended to provide for safety in the

railroad industry.

II. SUMMARY OF ARGUMENT

The Petition should be granted because if the lower

court decision is not overturned, common carriers

could exclude workers from coverage under the FELA,

and other laws and regulations implemented for railroad safety, by assigning duties necessary for the operation of a common carrier to employees of subsidiary companies through clever corporate structuring.

7KHGHÀQLWLRQRIWKHWHUP´FRPPRQFDUULHUµDGRSWHG

by the lower court was unduly narrow. Common carriers covered by the FELA include not only railroads

that operate trains as a means of carrying for the pub-

3

lic, but also companies that perform vital functions of

railroad operations on behalf of a common carrier,

particularly when there is common ownership or a

contractual relationship between the company and

the common carrier. Applying this standard in the instant case, Corman Services2 is covered by the FELA

because it shared a common parent company with

Memphis Line, a common carrier, and Corman Services provided vital services necessary for Memphis

Line’s railroad operations carried on for the public—

the maintenance and repair of Memphis Line bridge

over which the railroad operated.

If the test set forth by the Sixth Circuit below is

permitted to stand, it opens the door for companies

such as Corman Services to be excluded from coverage

from other railroad safety regulations, which generally apply to “railroads” and “railroad carriers.” Such

regulations provide detailed safety standards for railroad bridge worker safety, as well as numerous other

aspects of railroad operations. See 49 C.F.R. Part 214,

Subpart B and 49 C.F.R. Part 237. If Corman Services

is not considered a “railroad carrier,” it is further excluded from coverage from the whistleblower provisions of the Federal Railroad Safety Act (“FRSA”). 49

U.S.C. § 20109. This provision in the FRSA prohibits

a railroad carrier from retaliating against its employees for reporting hazardous safety conditions in the

The corporate structure and intimate relationship of Respondents is fully set forth in Petitioner’s request for certiorari

and will not be fully repeated. For purposes of the arguments

herein, “Corman Services” refers to Respondent R.J. Corman

Services, LLC, who was Petitioner’s employer, and “Memphis

Line” refers to Respondent R.J. Corman Railroad Company/

Memphis Line aka R.J. Corman Railroad Company/Memphis

Line, Inc., a common carrier on whose bridge and tracks Petitioner was working at the time of his injury.

2

4

workplace or other protected activity. Id. The narrow

GHÀQLWLRQRIFDUULHULQWKHKROGLQJEHORZFRXOGUHPRYH

whistleblower protections from Corman Services employees and would have a detrimental impact on the

safety of not only Corman employees, but railroad

workers who may interchange with the Memphis

Line, and the public.

The decision of the court below frustrates the purpose and intent of the FELA by enabling common carriers to exclude workers from coverage by isolating

crafts of workers into separate business entities. This

Court has previously rejected attempts by railroads to

avoid liability under the FELA by assigning portions

of its operations to other carriers (Shenker v. Baltimore & Ohio Railroad Co., 374 U.S. 1 (1963)) or independent contractors (Sinkler v. Missouri Pac. R. Co.,

356 U.S. 326 (1958)). The same result should apply

when subsidiary companies are used for this purpose.

The threat of FELA liability is a motivating force for

common carriers to invest in the safety of their employees. If the decision below is permitted to stand,

and FELA coverage is limited, the impact on safety in

the railroad industry will be extensive.

III. ARGUMENT

A. Corman Services is a “Common Carrier”

Subject to the Federal Employers’

Liability Act

Congress has made clear what it expects of railroad

safety. The Federal Railroad Safety Act contains the

congressional intent at issue in this case, namely “to

promote safety in all areas of railroad operations and

to reduce railroad-related accidents, and reduce

deaths and injuries to persons . . .” Sec. 101, Pub. L.

FRGLÀHGDW86&†$GGLWLRQDOO\

5

U.S.C. § 103(c) mandates that the Federal Railroad

Administration “shall consider the assignment and

maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in railroad transportation.” Coupled

with the above requirements, all railroad safety laws

are to be construed in order to accomplish the remedial purpose of railroad safety. Brady v. Terminal

Railroad Association, 303 U.S. 10, 13-14 (1938). As

noted in McBride v. CSX Transportation, Inc., 564

U.S. 685, 686 (2011), “. . . Congress’ ‘humanitarian’

and ‘remedial’ goal[s]’ in enacting the statute, FELA’s

causation standard is ‘relaxed’ compared to that applicable in common-law tort litigation, Consolidated

Rail Corporation v. Gottshall, 512 U.S. 532, 542-543.”

Section 1 of the FELA provides in part:

Every common carrier by railroad while engaging

in commerce between any of the several States . . .

shall be liable in damages to any person suffering

injury while he is employed by such carrier in such

commerce . . . for such injury resulting in whole or

LQ SDUW IURP WKH QHJOLJHQFH RI DQ\ RI WKH RIÀFHUV

agents, or employees of such carrier . . .

45 U.S.C. § 51. “Thus, there are three basic prerequisites to FELA liability. The defendant must, at the

time of the plaintiff’s injury, be (1) a common carrier,

(2) employing the plaintiff, (3) in furtherance of interstate commerce.” Smith v. Rail Link, Inc., 697 F.3d

1304, 1307 (10th Cir. 2012). The term “common carriHUµDVXVHGLQWKH)(/$KDVJHQHUDOO\EHHQGHÀQHGDV

“one who operates a railroad as a means of carrying for

the public—that is to say, a railroad company acting as

a common carrier. This view not only is in accord with

the ordinary acceptation of the words, but is enforced

6

by the mention of cars, engines, track, roadbed and

other property pertaining to a going railroad.” Wells

Fargo and Company v. Taylor, 254 U.S. 175, 187-188

 7KH)(/$GHÀQHVWKHWHUP´FRPPRQFDUULHUµ

to “include the receiver or receivers or other persons or

corporations charged with the duty of the management

and operation of the business of a common carrier.” 45

U.S.C. § 57.

7KH3HWLWLRQHUVHWVIRUWKLQGHWDLOWKHFRQÁLFWLQJDSSURDFKHVRIWKH&LUFXLW&RXUWVLQGHÀQLQJZKRLVDFRPmon carrier under the FELA. Using any of the differing

tests, Corman Services is a common carrier and should

be covered by the FELA. For example, considering the

factors enumerated in Lone Star Steel Co. v. McGee,

380 F.2d 640, 647 (5th Cir. 1967), Corman Services performs part of the total rail service needed by Memphis

Line to perform under its contract with the public,

which involves moving freight from one point to another. Corman Services maintains and repairs the bridges

over which Memphis Line runs its trains. This service

is indispensable for Memphis Line’s railroad operations. “Whether a transportation agency is a common

carrier depends not upon its corporate character or declared purposes, but upon what it does.” Id. at 648, citing United States v. State of California, 297 U.S. 175

(1936). Under the Lone Star test, there is both common

ownership (Corman Group) and a contractual relationship between Corman Services and the common carriHU$QGÀQDOO\0HPSKLV/LQHSURYLGHVUHPXQHUDWLRQ

to Corman Services for the services it performs in furtherance of the rail operations of the common carrier. If

the Sixth Circuit had properly applied this test, it would

have found that Corman Services is a common carrier.

In Kieronski v. Wyandotte Terminal Railroad Co.,

806 F.2d 107 (6th Cir. 1986), the court determined that

7

carriers could be placed into several categories and

that determining whether a particular case involved a

common carrier under the FELA is dependent upon

which category the facts were most analogous. The

fourth category discussed by the court is comparable to

Lone Star and included a company that “performed

some of the functions of the common carrier, functions

that the common carrier’s customer had contracted to

have the common carrier perform.” Id. at 109. Such an

entity was a common carrier by virtue of a common

ownership combined with the entity’s performance of

part of the common carrier’s duties. Corman Services

ÀWVGLUHFWO\LQWRWKLVFDWHJRU\,WVKDUHVFRPPRQRZQership with and provides bridge maintenance and repair to Memphis Line, services that are a necessary

part of the movement of freight.

The court below then examined (GZDUGVY3DFLÀF

)UXLW ([SUHVV &RPSDQ\, 390 U.S. 538 (1968), which

held that a company providing refrigerated rail cars

to a railroad was not itself a common carrier. The

Court in Edwards reasoned that “there exist a number of activities and facilities which, while used in

conjunction with railroads and closely related to railroading, are yet not railroading itself.” Id. at 540.

Clearly, maintaining the tracks and bridges over

which Memphis Line trains operate in service of the

public is distinguishable from providing rail cars that

can transport perishable goods. Memphis Line can

service the public as a common carrier without refrigerated cars; it cannot, however, without railroad

tracks and bridges. The Sixth Circuit below seemed to

acknowledge this difference and stated, “[g]ranted,

the maintenance and repair of railroad track and

bridges is surely integral to the operation of railroads.”

Mattingly v. R.J. Corman R.R. Group, LLC, 90 F.4th

478, __ (6th Cir. 2024).

8

The court did not, however, properly consider this

distinction in its holding, nor did it apply the tests set

forth by the Circuit Courts for determining whether

Corman Services is a common carrier. Instead, the

court created its own overly restrictive requirement

that a company must be “an active participant in the

chain of commerce itself.” Id. at ___. The error was

compounded by suggesting that to participate in the

chain of commerce, an entity is required to be a physical link in moving people or freight. This holding

PXVWEHRYHUWXUQHG$SSO\LQJVXFKDQDUURZGHÀQLtion to the term “common carrier” would allow railroads to exclude from FELA coverage employees that

are essential to rail operations such as signalman,

dispatchers, trackman, car inspectors, maintenance

of way personnel, and others. None of these crafts actively participate in physically moving people or

freight, however they all are a vital part of railroad

operations.

Instead of engaging in a proper analysis of whether

Corman Services is a common carrier, the Sixth Circuit focused much of its analysis on corporate common

law principles that examine the derivative liability of

Memphis Line or the parent holding company. Such

an analysis is unnecessary in this case because Petitioner’s own employer, Corman Services, is a common

carrier and therefore can be held directly liable under

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common carrier includes “the receiver or receivers or

other persons or corporations charged with the duty of

the management and operation of the business of a

common carrier.” 45 U.S.C. § 57. Corman Services was

charged with the duty of the operation of a portion of

the business of Memphis Line—to maintain its tracks

and bridges. “The purpose of § 57 is to prevent railroads from escaping FELA liability by just assigning

9

their railroading operations to subsidiaries.” Dagon v.

BNSF Railway Co., 19-CV-00417 (S.D. Ill., July 21,

2020), citing N.C.R.R. Co. v. Zachary, 232 U.S. 248,

257-258 (1914).

The Sixth Circuit standard would encourage all

common carriers to do just that—isolate such crafts

into subsidiary companies to eliminate the need to

provide a reasonably safe place to work for those employees under the FELA. The FELA’s broad remedial

purpose demands that all employees engaged in the

essential operations of a common carrier be covered

by the provisions of the Act. A worker’s recovery under the FELA is premised not on the corporate structure of his/her employer, but on the notion that “justice demands that one who gives his labor to the

furtherance of the enterprise should be assured that

all combining their exertions with him in the common

pursuit will conduct themselves in all respects with

VXIÀFLHQWFDUHWKDWKLVVDIHW\ZKLOHGRLQJKLVSDUWZLOO

not be endangered.” Sinkler v. Missouri Pac. R. Co.,

356 U.S. 326, 330 (1958).

B. Other Federal Railroad Safety

Regulations are Implicated by the

Decision Below

If the lower court decision is permitted to stand, and

FRXUWVXVHDPRUHUHVWULFWLYHGHÀQLWLRQRIFRPPRQFDUrier, there is a risk that companies could use clever

corporate structures to avoid compliance with other

federal railroad safety regulations as well. The Federal

Railroad Safety Act, 49 U.S.C. § 20101 et seq., was

passed to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. Regulations are implemented pursuant to the FRSA by the Federal Railroad

Administration. See 49 C.F.R. Parts 200-299. The reg-

10

ulations involve “railroads” and “railroad carriers,” as

GHÀQHGLQ86&†    DQG  

Included within the railroad safety regulations are

detailed provisions for Bridge Safety Standards. 49

C.F.R. Part 237. The regulations outline provisions for

bridge safety management programs with the purpose:

to prevent the deterioration of railroad bridges by

preserving their capability to safely carry the trafÀFWREHRSHUDWHGRYHUWKHPDQGUHGXFHWKHULVNRI

human casualties, environmental damage, and disruption to the Nation’s railroad transportation system that would result from a catastrophic bridge

failure . . .

49 C.F.R. § 237.31. Part 237 additionally provides for

inspections, engineering safeguards, and repair and

PRGLÀFDWLRQ UHTXLUHPHQWV3 Similar provisions exist

for railroad signal systems (Part 236), freight car

standards (Part 215), locomotive safety standards

(Part 229), and track safety standards (Part 213).

1DUURZO\GHÀQLQJFRPPRQFDUULHUDVVXJJHVWHGE\

the decision below, to entities that are “an active participant in the chain of commerce itself,” including

having a physical link to that chain, opens the door for

arguments that the above-stated safety regulations

are inapplicable to companies because they are not

“railroads” or “railroad carriers.” Railroads that isolate workers to avoid FELA liability can similarly atThe extent to which the work performed by Petitioner at the

time of his workplace accident is covered by federal railroad safety

regulations suggests that his work was a vital function in railroad

operations and supports the conclusion that Corman Services is

common carrier. Although coverage under these regulations is not

determinative, it is a factor that courts should consider in the

analysis of whether a company is a common carrier.

3

11

tempt to structure their operations to allow noncompliance with other safety regulations. In both

instances, there is a detrimental impact on the safety

of both workers and the public.

For example, the FRSA includes a whistleblower

provision that prohibits a “railroad carrier” from discharging, demoting, suspending, reprimanding, or otherwise discriminating against an employee if that employee engages in protected activity, including good

faith reporting of a hazardous safety or security condition. 49 U.S.C. § 20109(b)(1)(A). Adopting the restrictive standard of the Sixth Circuit in the decision below

excludes a company like Corman Services from the

coverage of the whistleblower act because it would argue that it is not a “railroad carrier.” If a Corman Services employee made a good faith complaint about the

unsafe manner in which work on a bridge was performed (such as what led to Petitioner’s injuries in this

case), that employee would risk retaliation without

any recourse. There is a long history of such harassment and retaliation in the railroad industry. See Consolidated Rail Corp. v. United Transportation Union,

947 F.Supp. 168, 171 (E.D. Pa. 1996), citing Federal

Rail Safety Authorization Act of 1980, Pub.L.No. 96423, reprinted in 1980 U.S.C.C.A.N. 3830, 3832.

Given that history, and the dangerous nature of the

work involved in railroad operations, Congress intended the FELA and other federal safety regulations

to be liberally construed and broadly applied. The decision of the court below frustrates that purpose. Corman Services employs workers who perform duties

that are critical to the operations of the railroad and

are heavily regulated because of the safety-sensitive

nature of the work. Under these circumstances, combined with the corporate relationship between Cor-

12

man Services and Memphis Line, Corman Services

should be subject to coverage of the FELA and other

railroad safety legislation. The Sixth Circuit decision

below improperly excludes that coverage. Workers

such as Petitioner, his co-workers, other railroad employees, and the public would all be at risk if companies like Corman Services were not subject to the

FELA and other regulatory provisions covering the

railroad industry.

CONCLUSION

For the reasons stated herein, the Amici Curiae respectfully request that the Petition for Writ of Certiorari be granted.

Respectfully Submitted,

ANDREW J. THOMPSON

Shapero Roloff Co., LPA

1111 Superior Ave. East

Suite 1310

Cleveland, OH 44114

(216) 781-1700

athompson@shaperoroloff.com

LAWRENCE M. MANN

Counsel of Record

Alper & Mann, P.C.

9205 Redwood Avenue

Bethesda, MD 20817

(202) 298-9191

mann.larrym@gmail.com

JOSHUA D. MCINERNEY,

General Counsel, BLET

Wentz, McInerney, Peifer

&Petroff, LLC

14 E. Gay Street, 4th Floor

Columbus, OH 43215

(614) 756-5566

jmcinerney@lawforlabor.com

KEVIN BRODAR

General Counsel, SMART-TD

6060 Rockside Woods Blvd. N.

Suite 325

Independence, OH 44131-2378

(216) 228-9400

kbrodar@smart-union.org