Petition for Writ of Certiorari — Arnold v. Consolidated Rail Corp.

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9 1°364 . Supreme Court, US.

; FILED

Case No ! OFFICE UF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

PAUL E. ARNOLD,

Petitioner,

Vv.

CONSOLIDATED RAIL CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL E. McGILL

717 Madison Avenue

Toledo, Ohio 43624

(419) 242-8942

Attorney for Petitioner

see arte a 8A ne See en ne emmninaeal

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO (513) 621-2880

. fa

Ce a alan 0 a ry as” eee = Pa’ =o oo

QUESTION PRESENTED

Whether a machinist employed by an interstate rail carrier

and who is injured while performing the function of repairing

the brakes of a locomotive engine situated within the confines

of a dock facility, but a significant distance from the water’s

edge, is limited to recovery under the Longshoreman and

Harbe:; Workers’ Compensation Act or whether he may

maintain an action for personal injury pursuant to the

Federal Employers Liability Act.

TABLE OF CONTENTS

Page

EEE ROS Sa I

SE IV

on. space ewn ees ees ves ]

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ee i ss oc i nee cere cet oss’ 2

EE I 4

Argument in Support of Petition for Certiorari......... )

ESE 9

B. The Injuries Sustained By Petitioner Occurred

Outside Of The Parameters Of The Situs Test

Enunciated In 33 U.S.C. See. 903(A)........... 1]

C. Petitioner Is Not An “Employee” Within The

Meaning Of 33 U.S.C. Sec. 903(3) ............. 13

TE 9 SSR 15

Appendix

Opinion and Order of District Court ............... la

Opinion of Court of Appeals ...................... 6a

IV

TABLE OF AUTHORITIES

Cases Page

Bocook v. Louisville & N.R. Co.,

G7 F. Samp. B60 OD Biv. FOOD once ccc ccceeens 9

Chesapeake & Chio Ry. Co. v. Schwalb,

mentee US eeeey SSO S.CR. SRL (ISSR)... . . 10, 11, 13, 14

Director, Office of Worker’s Compensation Programs

eo ES eer eee 11

Green v. River T.R. Co.,

763 F. 2d 805 (6th Cir. 1985)...................... 9

Merrill v. Chicago & Illinois Midland Ry. Co.,

751 F. Supp. 770 (C.D. Ill. 1990).............. 10, 11, 14

Nacirema Operating Co. v. Johnson,

Se ee I ooo ee MB a 6:05 bn wl se e's ve 9

O'Leary v. Puget Sound Bridge & Dry Dock Co.,

Rp RR ee 12

Rodriguez v. Delray Connecting R.R..,

Gis 6 ee Ns FD voc he veer eiceessvenes 9

St. Louis Shipbuilding Co. v. Director of Worker’s

Compensation Programs, 551 F.2d 1119 (8th Cir.

cee Ae rock reel yess so has ee Cab aa ew ke. 12

Wilkerson v. McCarthy,

ae IIE A gE Pape rarer Ooh bananas 9

Statutes:

ne in cs one ee eveeaaeedinenemees 2

ee, Os I oon vcccceseeesves ¢eueses 9

pe os 5 bc as si6svtxacsnewaceeee 3, 10, 13

CR a eee rere 3, 9, 11, 12

io ik cars ka ee ik oa oe SOROS 2,9

EE CN a nn acs whine ee kbadedtan os awed 9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

No.

PAUL E. ARNOLD,

Petitioner,

Vv.

CONSOLIDATED RAIL CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion of the district court, dated September 7, 1990,

is not officially reported, and appears as Appendix A to this

Petition.

The opinion of the Court of Appeals, dated June 6, 1991, is

not officially reported and appears as Appendix B to this Peti-

tion.

STATEMENT OF JURISDICTION

The Petitioner, Paul E. Arnold, respectfully prays that a

Writ of Certiorari issue to review the Judgment and Opinion

of the United States Court of Appeals for the Sixth Circuit

entered on June 6, 1991.

2

This action was commenced with the filing of a complaint

for personal injuries pursuant to the provisions of the Federal

Employers Liability Act (FELA), 45 U.S.C. Sec. 51 et seq.

and specifically Section 56 thereof, establishing jurisdiction in

the United States district courts for actions brought under the

FELA.

Plaintiff appealed to the United States Court of Appeals for

the Sixth Circuit from a judgment of the United States

District Court for the Northern District of Ohio dismissing

the complaint, with prejudice, for lack of subject matter

jurisdiction.

On June 6, 1991, the Sixth Circuit Court of Appeals, in a

brief per cuiram decision, affirmed the judgment of the

District Court.

The jurisdiction of this Honorable Court is invoked pur-

suant to 28 U.S.C. Sec. 1254(1).

STATUTES INVOLVED

45 U.S.C. Section 51:

Liability of common carriers by railroad, in interstate

or foreign commerce, for injuries to employees from

negligence; definition of employees.

Every common carrier by railroad while engaging in

commerce between any of the several States or Ter-

ritories, or between any of the States or Territories, or

between the District of Columbia or any of the States

or Territories, or between the District of Columbia or

any of the States or Territories and any foreign nation

or nations, shall be liable in damages to any person

suffering injury while he is employed by such carrier

in such commerce, or, in the case of the death of such

employee, to his or her personal representative, for the

benefit of the surviving widow or husband and

children of such employee, and, if none, then of such

employee's parents; and, if none, then of the next of

3

kin dependent upon such employee, for such injury or

death resulting in whole or in part from the

negligence of any of the officers, agents, or employees

or such carrier, or by reason of any defect or insuffi-

ciency, due to its negligence, in its cars, engines, ap-

pliances, machinery, track, roadbed, works, boats,

wharves, or other equipment.

Any employee of a carrier, any part of whose duties as

such employee shall be the furtherance of interstate or

foreign commerce; or shall, in any way directly or

closely and substantially, affect such commerce as be-

ing employed by such carrier in such commerce and

shall be considered as entitled to the benefits of this

Act and an Act entitled “An Act relating to the liabili-

ty of common carriers by railroad to thier employees

in certain cases” (approved April 22, 1908) (45 USCS

Statute 51 et seq.) as the same has been or may

hereafter be amended.

33 U.S.C. Section 902(3):

. . the term ‘employee’ means any person engaged in

maritime employment, including any longshoreman

or any other person engaged in longshoring opera-

tions, and any harbor worker including the ship

repairman, shipbuilder and shipbreaker . . .

33 U.S.C. Section 903(a):

. . except as otherwise provided in this section, com-

pensation shall be payable under this act in respect of

disability or death of any employee, but only if the

disability or death results from an injury occurring

upon the navigable waters of the United States (in-

cluding any adjoining pier, wharf, drydock, terminal,

building way, marine railway, or other adjoining area

customarily used by an employer in loading, unload-

ing, repairing, dismantling or building a vessel).

4

STATEMENT OF THE CASE

This is an action brought under the Federal Employers’

Liability Act (PELA) for personal injuries sustained by the

Plaintiff, Paul E. Arnold, on April 21, 1988. On that date,

Plaintiff was employed by Defendant, Consolidated Rail Cor-

poration, as a mechanic/machinist and had been so employed

since approximately March 31, 1970. At his deposition, Plain-

tiff testified that he normally worked out of the Defendant's

Stanley Yard (a railroad facility located in the vicinity of

Toledo, Ohio), reporting every day at the fuel pad. For the

summer season of 1988, he was the sole regularly scheduled

Conrail mechanic assigned to the Presque Isle/Lakefront

Dock facility. Prior to the 1988 season, he never worked at

Presque Isle on a regular basis, but occasionally was sent

there to service a particular train.

Mr. Arnold’s basic job duties as a mechanic for Conrail at

the dock facility were described as follows:

A. Checking out the locomotives, going from the

cab of the engine, 20 engine, checking out, make sure

the engine’s working proper, make sure there’s no

leakage for the air when the unit is tied onto the train,

taking a leakage test, get down, make sure all sanders

are working.

Q. What are sanders?

A. That is sand that goes on every wheel on the

track.

Q. Okay. Go ahead. I know what you mean.

A. Check out the sanders, make sure they’re all

working. Check out all brake rigging, all the brake

shoes, the brake travel, checking out traction motors.

Just visual looking to see if we could see anything

wrong and making repairs for anything we find

wrong. It’s mechanical.

Q. So not only have to check out the locomotive,

if you find something wrong it’s your duty to repair it.

A. Yes, sir.

(Deposition of Paul Arnoid at 87).

5

On the morning of his injury, Mr. Arnold proceeded to in-

spect TORCO Engine No. 7800 in the same manner as he had

inspected ten other railroad engines that same morning. This

locomotive power unit was a full size engine similar to those

operated by both Conrail and Chessie System both within the

Lakefront Dock facility and over the road. Plaintiff checked

the air equipment, automatic brake, independent brake,

deadman pedal, cab sink shell, windshield wipers, the boiler,

governor, headlights and brakes. When he examined the

brake on wheel number three, he found the brake shoe to be

defective. It was while attempting to replace this brake shoe

on Engine No. 7800, which Plaintiff referred to as being so

badly in need of repair as to constitute a “federal defect,” that

Plaintiff sustained the herniated lumbar disc for which suit

under the FELA was instituted.

In addition to the Plaintiff's deposition, the facutal record

before the district court consisted of the Affidavit of James A.

Arton, Assistant Manager of the dock facility, which was filed

by Defendant in support of its Motion to Dismiss; the deposi-

tion of Mr. -Arton taken by Plaintiff; and the Affidavit of

Terry D. Lewis, a private investigator and photographer re-

tained by Plaintiff. At his deposition, Mr. Arton testified that

he had no independent recollection of Plaintiff's injury, hav-

ing learned of it only through a Conrail claims agent. Arton

understood, and it is not disputed, that the injury occurred at

a location with which he was familiar and which he approx-

imated to be at least 2000 yards from the water. Further, Ar-

ton admitted that the activity of changing brake shoes on a

locomotive (power unit engine) was a traditional railroad ac-

tivity.

During the course of this deposition, Mr. Arton was shown

photographs of several types of locomotives found at the

docks. All of these photographs had been taken by Terry D.

Lewis, Plaintiff's photographer. Exhibits 2 and 3 of the Arton

deposition depicted the TORCO unit upon which Plaintiff

was injured. Exhibit 4 depicted a CSX road locomotive

similar in size and functions as Locomotive No. 7800 and

6

which was found within the Lakefront Dock facility. Exhibit

5 depicted a much smaller “pusher unit” used to index cars in-

to a dumper. Pusher units are much smaller both in regard to

size and power from the TORCO unit being serviced by

Plaintiff when he was injured.

According to Aton, all of the activity relative to the opera-

tion of the smal! pusher unit took place in close proximity to

the water. Further, the servicing and repair of these pusher

units was done by members of the Longshoreman’s Associa-

tion, a different labor union from which Plaintiff was a

member. When asked who would repair the TORCO unit,

the response was “locomotive mechanic.” Thus, while it was

theoretically possible for a longshoreman to repair a larger

TORCO unit located 2000 yards (or more) from the water, it

would be a violation of the longshoreman union contract to

do so. In other words, as a practical matter, a longshoreman

could not have done the repair work on TORCO 7800 which

was being performed by the Plaintiff. Further, Arton testified

that the TORCO unit being repaired by Plaintiff was located

in an area customarily used for the repair of railroad equip-

ment. This area and sidetrack was located approximately two

miles from the water, was on a sidetrack situated four tracks

south of any rail movement and was not being used for the

loading or unloading of coal.

In paragraph 3 of the affidavit of James Arton, which was

filed by Defendant in support of its motion to dismiss, Arton

stated generically that the work being done by Plaintiff was

“an integral part of the loading and unloading process.”

However, when he was cross examined and asked to elaborate

on this statement at deposition, Mr. Arton recanted his prior

Affidavit averment and testified as follows:

Q: What I am getting at, the fact that this

locomotive, this TORCO 78 [sic] was down for repair

did not shut down the loading and unloading process

at the dock, did it?

A: No.

7

Q: I want to assume that, in fact, on the day of

this injury there was a problem with the brake shoe

and because of that Mr. Arnold believed that it may

have created a federal defect. You know that that

means, don’t you?

A: Yes, I do.

Q: Okay. What does that mean?

Mr. Timonere: Talking about the federal defect

now?

Mr. McGill: Yes.

A: It means that the problem with the locomotive

would have made the locomotive illegally used under

the Federal Railway Administration Act until the

problem was corrected.

Q: Now, once that situation occurs that power

unit has to be repaired, correct?

A: In the case of brake shoes that needs to be an-

ticipated, and the brake shoes could be replaced at a

time of convenience to the railroad rather than wait

until was not suitable for service.

Q: Are you telling me that on this day this brake

shoe was being repaired at a time convenient to the

railroad?

A: I don’t recall on that particular day, but that

would be the normal procedure.

Q: And when you say “at a time convenient to the

_ railroad,” what are you talking about?

A: It would be at a time when there is no ore to

load into cars and machinery is idle and the

locomotive is available for such maintenance work.

Q: In other words, the loading and unloading

process at the dock would not be materially affected

by the power unit being out of service?

A: That would be good management.

Q: That would be a true statement also, wouldn't

it?

A: Yes.

8

Based upon all of the foregoing, Plaintiff contended that

the District Court had subject matter jurisdiction over his

claim for personal injuries under the FELA and that Defen-

dant’s proposition that recovery could only be had under the

Longshoreman and Harborworker’s Act should have been re-

jected. The trial court held, however, that it lacked jurisdic-

tion and dismissed the complaint. The Sixth Circuit Court of

Appeals affirmed this determination.

9

ARGUMENT IN SUPPORT OF PETITION

FOR CERTIORARI

A. Introduction

The issue posed by the Railroad’s motion to dismiss for lack

of subject matter jurisdiction and upon this appeal is whether

the Plaintiffs injuries are covered by the Federal Employers’

Liability Act (FELA), 45 U.S.C. Sec. 51 et seq., as alleged in

the complaint, or whether his exclusive remedy is under the

Longshoreman and Harborworker’s Compensation Act.

(LHWCA), 33 U.S.C. Sec. 901 et seqg., as argued by Conrail.

The FELA was enacted approximately 80 years ago in

order “to put on the railroad industry some of the cost for

legs, eyes, arms and lives which it .consumes in_ its

operations.” Wilkerson v. McCarthy, 366 U.S. 53, 66 (1949).

It has been consistently held that the FELA is remedial in

nature and is to be liberally construed to effect its

humanitarian purposes. See, e.g., Green v. River T.R. Co.,

763 F.2d 805 (6th Cir. 1985); Bocook v. Louisville & N.R.

Co., 67 F.Supp. 154 (D.Ky. 1946). Accord Rodriguez v.

Delray Connecting Railroad, 473 F.2d 819 (6th Cir. 1973).

Historically, the LHWCA covered only employees injured

upon navigable waters. Nacirema Operating Co. v. Johnson,

396 U.S. 212 (1969). In response to that decision, the Act was

amended in 1972 to provide a two pronged test for coverage,

situs and status. The situs requirement is set forth in 33

U.S.C. Sec. 903(a):

. except as otherwise provided in this section,

compensation shall be payable under this act in

respect of disability or death of an employee, but only

if the disability or death results from an injury occurr-

ing upon the navigable waters of the United States (in-

cluding any adjoining pier, wharf, drydock, terminal,

building way, marine railway, or other adjoining area

customarily used by an employer in_ loading,

unloading, repairing, dismantling or building a

vessel).

10

Section 902(3) of the Act defines the status requirement:

. . . the term ‘employee’ means any person engaged in

maritime employment, including any longshoreman

or any other person engaged in longshoring opera-

tions, and any harbor worker including the ship re-

pairman, shipbuilding and shipbreaker . . .

Both the trial court and, inferentially, the Court of Appeals

in the case sub judice found this Court’s holding in

Chesapeake & Ohio Ry. Co. v. Schwalb, __. U.S. ___., 110

S.Ct. 381 (1989), to be controlling. Appellant submits,

however, that the decisions below go far beyond the “con-

sciously narrow holding” of the Schwalb decision. See Merrill

v. Chicago & Illinois Midland Ry. Co., 715 F.Supp. 770

(C.D. Ill. 1990). Railroad employees such as Paul Arnold,

who are the subjects of Congressional protection by virtue of

the passage of the FELA, should not be relegated to a lesser

degree of damages under the LHWCA based upon his varied

work assignments within a given day and the shifting and

uncertain vagaries of “situs” and “status.” Railroad workers

should have the right to expect the protection and benefits of

the FELA, an act of Congress which has protected them since

its enactment in 1906. Preventing the application of the

FELA to the case at bar would only serve to extend Congress’

imaginary boundary line of the LHWCA to an unreasonable

and unprecedented point which is devoid of logic cr practical

function.

The instant case affords this court the unique opportunity

to define and/or refine the status and situs requirements of the

LHWCA. The decisions below mandate that recovery for any

injury to an interstate railroad employee will be limited to

LHWCA if it occurs anywhere within the vast and undefined

ares contained within a dock facility and regardless of the

nexus between the work being performed at the time of the

injury and longshoring activities.

11

B. The Injuries Sustained by Petitioner Occurred Out-

side of the Parameters of the Situs Test Enunciated

in 33 U.S.C. Sec. 903(a).

While it is true that Congress intended, within a limited

respect, to provide LHWCA coverage to landbased

employees, it does not follow that it intended that every inch

of area within the geographical limits of a dock or port facili-

ty be considered “adjoining” as used in Sec. 903(a). As noted

by this Court in Director, Office of Workers’ Compensation

Programs v. Perini, 459 U.S. 297, 317 (1983), the legislative

history of the 1972 amendments to the LHWCA reveals that

Congress did not “intend to cover employees who are not

engaged in loading, unloading, repairing, or building a

vessel, just because they are injured in an area adjoining

navigable waters used for such activity.”

The issue of situs was not before this Court in Schwalb,

supra. However, in the post-Schwalb case of Merrill v.

Chicago & Illinois Midland Ry. Co, supra, it was observed

that situs under Section 903(a) “is tied directly to whether the

location [of this accident] is ‘customarily used . . . in loading

. a vessel.’”” 751 F.Supp. at 771. Put differently, “is the

situs used as part of loading or unloading operations?” Id.

In the case sub judice the accident occurred on a remote

sidetrack located approximately 2000 yards from the water,

where the loading and unloading process could not be af-

fected by these repair efforts. As Judge Mills observed in Mer-

rill, “there is a line somewhere . . . where the situs test would

no longer be met, and where no maritime jurisdiction would

be present.” 751 F.Supp. at 778. Only this Court can draw

that line. It is inconceivable and illogical that Congress could

have intended the LHWCA to apply to an injury occurring

where and under the circumstances found here.

This Court should, therefore, accept this case so as to

define the outer limits of situs under 33 U.S.C. Sec. 903(a).

This Court should also accept this case to determine whether

tracks running into, out of and through a dock facility con-

12

stitutes a “marine railway” as that phrase is used in Sec.

903(a). Both of the lower courts in this case concluded that

Paul Arnold was injured on a marine railway. Appellant sub-

mits that this is patently incorrect. Case law has defined a

“marine railway” in much different terms. Thus, in O'Leary

v. Puget Sound Bridge and Dry Dock Co., 349 F.2d 571, 573

(9th Cir. 1965), the Court construed the words “marine

railway,” as defined by the United States Department of the

Navy, as follows:

A marine railway is a permanently fixed track

system extending from a point on shore well above the

waterline to a point offshore well below the waterline;

it is equipped with a cradle capable of moving along

the track by means of rollers or wheels, and a cable or

chain and hauling mechanism for hauling the cradle

carrying the docked ship into or out of the water. A

vertical lift is a variation of a marine railway that is

used for small craft; it consists of a cradle and lifting

device for raising the craft vertically out of the water.

See also, St. Louis Shipbuilding Co. v. Director of Office of

Workers’ Compensation Programs, 551 F.2d 1119 (8th Cir.

1977) (applying 1972 amendments). Patently, the Plaintiff in

the instant case was not injured on a marine railway as de-

fined by the Ninth and Eighth Circuit Courts of Appeal, and

the courts below erred in concluding otherwise.

13

C. Petitioner is not an “Employee” within the Meaning

of 33 U.S.C. Sec. 902(3).

The focus of the status test set forth in 33 U.S.C. Sec.

902(3) is occupational. As this court stated in Schwalb, supra:

“[L]andbased activity occurring within the Section 903 situs

will be deemed maritime only if it is an essential part of

loading or unloading a vessel.” 110 S.Ct. at 384. Thus,

“employees who are injured while maintaining or repairing

equipment essential to the loading or unloading process are

covered by the Act.” Id. at 385.

The question which it is respectfully requested this Court

must address is what is “essential equipment?” Is one of ten

locomotives available to haul coal cars so essential to the

ioading and unloading process that an injury sustained while

repairing its brakes relegates the railroad employee to harbor

workers’ benefits as opposed to tort recovery under the

FELA? In Schwalb, this Court indicated that “[{t]he deter-

minative consideration is that the ship loading process could

not continue unless the retarder . . . was operating properly.”

110 S.Ct. at 836. There was also evidence that conveyor belts

would “eventually” become clogged if not periodically

cleaned. Id.

However, in the case at hand, there is nut one scintilla of

evidence that the loading or unloading process would in any

way be impeded by the temporary removal from service of

this one locomotive upon which plaintiff was working when

he sustained his injury. To the contrary, the testimony of

James Arton, the Assistant Manager of the dock facility,

points totally in the other direction:

Q: Are you telling me that on this day this brake

shoe was being repaired at a time convenient to the

railroad?

A: I don’t recall on that particular day, but that

would be the normal procedure.

Q: And when you say “at a time convenient to the

railroad,” what are you talking about?

14

A: It would be at a time when there is no ore to

load into cars and machinery is idle and the

locomotive is available for such maintenance work.

Q: In other words, the loading and unloading

process at the dock would not be materially affected

by that power unit being out of service?

A: That would be good management.

Q: That would be a true statement also, wouldn't

it?

A: Yes.

(Deposition of James Arton at 34-35).

It was, therefore, totally uncontradicted on the record

below that Mr. Arnold’s mechanical activities vis a vis the

defective locomotive was not essential to the loading or

unloading process. Further, just as the rerailment in Merrill

was not longshoring but rather railroad activity, 751 F.Supp.

at 779, the act of repairing a broken and defective brake shoe

in the instant case must be considered a railroad activity.

Given the “consciously narrow holding” of this Court in

Schwalb, see Merrill, supra, at 778, it is repsectfully submit-

ted that Schwalb must be confined to its facts. Railroad

employees such as Paul Arnold, who are the subjects of Con-

gressional protection by virtue of the passage of the FELA

should not be relegated to a lesser degree of damages under

the LHWCA based upon the shifting and uncertain vagaries

of situs and status. Railroad workers should have the right to

expect the protection and benefits of the FELA, an act of

Congress which has protected them since its enactment in

1906. Preventing the application of the FELA to the case at

bar would only serve to extend Congress’ imaginary boundary

line of the LHWCA to an unreasonable and unprecedented

point which is devoid of logic or practical function.

While there may be an occasional case where the

Longshore and Harbor Worker's Compensation Act will

prevail over the Federal Employer Liability Act, these cases

15

should be the strictly limited exception rather than rule. Paul

Arnold was a Railroad employee performing traditional

Railroad services on a railroad engine which was far removed

from and not an integral part of the loading and unloading

process. In fact, the evidence of record herein clearly suggests

that this traditional railroad job was assigned to Plaintiff at a

time and place in which the loading and unloading process

could not be affected. Certainly, the case at bar is not a case

where the LHWCA should be held to apply. This Court has

the unique opportunity to provide direction to and chart a

clear path for injured railroad workers by defining the ap-

plication of the LHWCA vis a vis the FELA. Thousands of

federally protected railroad employees will be affected by the

Court’s attention to this issue.

Accordingly, petitioner respectfully prays that the Court

grant this Petition for Certiorari.

—.

CONCLUSION

For the reasons stated above, the decision of the court of

Appeals in the instant case raises a question of general im-

portance in the administration of both the Federal Employers

Liability Act and the Longshore and Harbor Worker’s Com-

pensation Act. It is critical that this Court further define the

parameters of LHWCA coverage so that interstate railroad

employees who receive on-the-job injuries may recover

damages for those injuries under the FELA, as intended by

the Congress of the United States.

WHEREFORE, petitioner respectfully prays that the peti-

tion for certiorari be granted.

Respectfully Submitted,

Michael E. McGill

Attorney for Petitioner

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case NO. 3:89CV7318

PAUL E. ARNOLD,

Plaintiff(s),

VS.

CONSOLIDATED RAIL CORP.,

Defendant(s).

OPINION AND ORDER

(Filed September 7, 1990)

WALINSKI, J.

This cause is before the Court on Defendant's motion to

dismiss, plaintiff's opposition thereto and defendant's reply.

This Court has jurisdiction pursuant to the Federal

Employers Liability Act, 45 U.S.C. § 51 et seq. (FELA).

Background

In deciding a motion to dismiss under Rule 12(b) Fed. R.

Civ. P., the function of the Court is to test the legal sufficien-

cy of the complaint. In scrutinizing the complaint, the Court

is required to accept the allegations stated in the complaint as

true, Hishon v. King & Spalding, 467 U.S. 69 (1975), while

viewing the complaint in a light most favorable to the plain-

tiffs. Schuer v. Rhodes, 416 U.S. 232 (1974); Westlake v.

Lucas, 537 F.2d 857, 858 (6th Cir. 1976). The Court is

without authority to dismiss the claims unless it can be

la

2a

demonstrated beyond a doubt that the plaintiff can prove no

set of facts that would entitle it to relief. Conley v. Gibson,

355 U.S. 41 (1957); Westlake, supra, at 859. See generally 2A

J. Moore, W. Taggert & J. Wicker, Federal Practice, {| 12.08

(2d ed. 1985).

Plaintiff, Paul E. Arnold (Arnold), was a mechanic

employed by defendant Consolidated Rail Corp. (Conrail) at

the Presque Isle/Lakefront Docks facility (the dock facility) in

1988. He allegedly injured his back trying to release a brake

shoe from the brake assembly of a locomotive. The

locomotive, No. 7800, was owned by Toledo Ore Railroad

Company (TORCO), a wholly owned subsidiary of CSX

Transportation Inc. (CSX). Locomotive No. 7800 was used to

move rail cars into and out of the “loadout” station located

within the dock facility. Arnold’s alleged injury occurred on a

section of track located approximately 2,000 yards away from

the waterfront but within the dock facility.

Conrail moves the Court to dismiss this action for lack of

subject matter jurisdiction, claiming that because Arnold was

a maritime employee, his exclusive remedy lies under the

Longshore and Harbor Workers Compensation Act, 33

U.S.C. 901 et seg. (LHWCA). Arnold argues that he was not

a maritime employee, as that term is defined by the

LHWCA, and that this Court has jurisdiction to hear his

FELA claims.

Discussion

If Arnold is covered by the LHWCA, that is his sole and ex-

clusive remedy and his FELA claims are preempted and must

be dismissed. 33 U.S.C. 905(a); Kelly v. Pittsburgh & Con-

neaut Dock Co., 900 F.2d 89 (6th Cir. 1990). The Supreme

Court, in Chesapeake and Ohio Ry. Co. v. Schwalb, __—

U.S. ___, 110 S. Ct. 381 (1989), identified four elements that

must be met for LHWCA coverage to apply:

the injured person must be injured in the course of his

employment, 33 U.S.C. § 902(2); his employer must

3a

have employees who are employed in inaritime

employment, § 902(4); the injury must occur “upon

the navigable waters of the United States (including

any adjoining pier, wharf, dry dock, terminal,

building way, marine railway, or other adjoining area

customarily used by an employer in loading,

unloading, repairing, dismantling, or building a

vessel) ,” 903; and the employee who is injured within

that area must be a “person engaged in maritime

employment, including any longshoreman or other

person engaged in longshoring operaticus, and any

harbor worker . . . 902(3).

Id. at 384. These last two elements are known as the “situs”

and “status” requirements, respectively. They should be in-

terpreted broadly with a view towards extended coverage of

the LHWCA. Northeast Marine Terminal Co. v. Caputo, 432

U.S. 249, 268 (1977).

In the case sub judice, the first two elements are un-

disputed: Arnold was allegedly injured in the course of his

employment attempting to repair Locomotive No. 780U and

Conrail has employees employed in maritime employment,

pursuant to the Toledo Docks Operating Agreement.

However, the parties disagree as to the situs and status re-

quirements.

The situs requirement is a functional one: is the situs used

as part of the loading or unloading operations? Merrill v.

Chicago & Illinois Midland Ry., ___ F. Supp. , WL

1180€% (C.D. Ill. 1990). Arnold argues that because his injury

occurred on a section of track located approximately 2,000

yards from the waterfront, the situs requirement is not met.

However, distance from the water itself is not determinative

of coverage. 1.T.O. Corp. v. Benefits Review Board, 529

F.2d 1080, 1082-84 (4th Cir. 1975), vacated on other

grounds, 433 U.S. 904, on remand, 563 F.2d 646 (1977)

(workers injured in marshaling area __ feet to three

quarters of a mile from the water met the situs requirement);

4a

Conligio v. Norfolk and Western Ry., 670 F. Supp. 1353,

1354-55 (E.D. Mich. 1987) (railway’s “eastbound yard”

satisifed the situs requirement). Arnold’s injury occurred on

tracks used to move coal cars around inside the dock facility.

It is clear that they were part of a marine railway, which by

express definition is considered to be a part of the navigable

waters of the United States. 33 U.S.C. 903(a). Given the

Caputo mandate that coverage be interpreted broadly, this

Court finds that Arnold satisifes the situs requirement.

The status requirement is an occupational one: was the

employee involved in an occupation essential or integral to

the loading or unloading process? Chesapeake and Ohio Ry.

Co. v. Schwalb, ___. U.S. ___, 110 S. Ct. 381, 385 (1989).

In Schwalb, the Supreme Court held that two maintenance

workers were covered under the LHWCA for injuries in-

curred while cleaning conveyor belts used to load coal onto

ships. This maintenance was essential to the loading process

because if it was not performed, the loading process would

eventually be shut down. Id. at 386.

Schwalb was recently interpreted in Atlantic Container

Service, Inc. v. Coleman, 904 F.2d 611 (11th Cir. 1990). In

that case, Coleman, a mechanic, was injured while making

repairs to outbound chassis. These chassis were used to carry

containers unloaded from ships to various points inland. The

court, in finding coverage under the LHWCA, held that

“(without the essential maintenance necessary to make the

outbound rigs roadworthy, the unloading process would stop

indefinitely.” Id. at 618.

In the case sub judice, Arnold contends that he was merely

performing traditional railroad work. This makes no dif-

ference. Schwalb at 386. Locomotive No. 7800 and the others

like it operated by TORCO are needed to move the cars into

and out of the “load out station”. Without his repairs,

especially if the brake problem was a “federal defect” that

would put No. 7800 out of service until fixed, the loading and

unloading process at the dock facility would eventually come

to a halt. Thus, Arnold’s repairs were essential to the loading

process and the status requirement is met.

5a

Arnold meets all four elements of the Schwalb test for

LHWCA coverage. Accordingly, it is

ORDERED that defendant’s motion to dismiss be granted

and that this case be dismissed for lack of subject matter

jurisdiction.

/s) NICHOLAS J. WALINSKI

SENIOR U.S. DISTRICT JUDGE

TOLEDO, OHIO

September 7, 1990

6a

APPENDIX B

NOT "OR PUBLICATION

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations.

Please see Rule 24 before citing in a proceeding in a court in

the Sixth Circuit. If cited, a copy must be served on other

parties and the Court.

This notice is to be prominently displayed if this decision si

reproduced.

90-3835

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAUL E. ARNOLD,

Plaintiff-Appellant,

Vv

CONSOLIDATED RAIL CORP.,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF OHIO.

(Filed June 6, 1991)

BEFORE: KEITH and MILBURN, Circuit Judges; and

COHN, District Judge. *

PER CURIAM: Paul E. Arnold (“plaintiff”) appeals from

the district court’s September 7, 1990, order granting defen-

* The Honorable Avern Cohn, United States District Judge for the

Eastern District of Michigan, sitting by designation.

7a

dant Consolidated Rail Corporation’s motion to dismiss for

lack of subject matter jurisdiction.

Having carefully considered the record and the arguments

presented in the briefs and orally, we find no error warrant-

ing reversal. We, therefore, AFFIRM the order of the

Honorable Nicholas J. Walinski, Senior United States District

Judge for the Northern District of Ohio, for the reasons set

forth in his September 7, 1990, Opinion and Order. We note

that even if the railroad tracks on which plaintiff worked

were not a “marine railway,” the finding that they were in-

side the dock facility area which adjoins navigable waters was

sufficient to meet the situs requirement.

ISSUED AS MANDATE: June 28, 1991

COSTS: None

[DULY CERTIFIED]