Reply Brief — Canadian Pacific Pacific Railway Railway Co. Co. v. Lundeen (No. 08-871)

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FILED ss

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| (4) OFFICE OF THE CLERK

| SUPREME COURT, U.S.

No. 08-871

IN THE

Supreme Oourt of the United States

CANADIAN PACIFIC RAILWAY COMPANY et al.,

Petitioners,

Vv.

TOM LUNDEEN et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

REPLY BRIEF OF PETITIONERS

TIMOTiTY R. THORNTON CARTER G. PHILLIPS*

KEVIN M. DECKER RICHARD D. KLINGLER

JONATHAN P. SCHMIDT ROBERT A. PARKER

BRIGGS AND MORGAN, P.A. SIDLEY AUSTIN LLP

2200 IDS Center 1501 K Street, N.W.

80 South Eighth Street Washington, DC 20005

Minneapolis, MN 55402 (202) 736-8000

(612) 977-8400

Counsel for Petitioners

April 20, 2009 * Counsel of Record

WILSON-EPES PRINTING CO , INC. — (202) 789-0096 — WASHINGTON,DC 20001

TABLE OF CONTENTS

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ee OE casicnecensncsvnwexgesssenenennnaseseuiecsorsesers

ir ciacchin als csivencaimareniunedstaeaiiieeiaiaeasen:

A. The Decision Below Contravenes Plaut

And Conflicts With Decisions Of Other

B. The Decision Below Is Inconsistent With

Klein And Deepens Longstanding Con-

flicts Among The Courts Of Appeals........

CFR RIIE sf iSedncatantdadiseksnancieddiesasanuss acaba siien

(1)

TABLE OF AUTHORITIES

CASES Page

Baldwin v. Iowa Siate Traveling Men’s

Ase’h, BBS Fre CA ED cco sesesces.00.00050....- 6

Beneficial Nat’l Bank v. Anderson, 539

Ue Bin sn. cuccceccceess 2

Carlsbad Tech., Inc. v. HIF Bio, Inc., No.

07-1437 (argued Feb. 24, 2009) ................. 4

Carnegie-Mellon Univ. v. Cohill, 484 U.S.

TED 4

City of Chicago v. U.S. Dep’t of Treas., 423

ee ew oe Lo 8. 9

Green v. French, 143 F.3d 865 (4th Cir.

1998), abrogated in part on _ other

grounds, Williams v. Taylor, 529 U.S.

i 9

Hamuiulton-Brown Shoe Co. v. Wolf Bros. &

Go, BAe te inst wes 0n.5....2...0.00... 4

Hanover Shoe, Inc. v. United Shoe Mach.

Corp., Gee ose. Ger Cree) ......................... 4

Lindh v. Murphy, 96 F.3d 856 (7th Cir.

1996), rev'd on other grounds, 521 U.S.

Sa Ce .................. 9

Mercer v. Theriot, 377 U.S. 152 (1964)......... 4

Paramount Health Sys., Inc. v. Wright, 138

ee By ke 10

Plaut v. Spendthrift Farm, Inc., 514 U.S.

DES Ce. n00s.0...-........ 1, 4,6

Plyler v. Moore, 100 F.3d 365 (4th Cir.

ae veers ne.nn...02..0....... 9

Robertson v. Seattle Audubon Soc’y, 503

Ue. a aici cies enccencs..0.0.000. 7

Toledo Scale Co. v. Computing Scale Co.,

iii enn cccsconss......... 4

United States v. Klein, 80 U. S. (13 Wall.)

DO a iirapeiekcnvetvecsvncscees. 1

ill

TABLE OF AUTHORITIES—continued

Page

United States v. Vazquez-Rivera, 135 F.3d

7 Cee Biches erences 7

United States v. Virginia, 518 U.S. 515

Ps tr cdacepascalucstGaensncess cane eaeianma anes 4

STATUTE

re ivi se ceccivncidhsiiccesenccaonns 6

LEGISLATIVE HISTORY

H.R. Conf. Rep. No. 110-259 (2007), re-

printed in 2007 U.S.C.C.A.N. 119............. 8, 11

SCHOLARLY AUTHCRITY

Robert L. Stern et al., Supreme Court

Practice (BER OG. BOOZ) occcaccvcscssoccescsccscccncess 5

INTRODUCTION

This petition presents two important issues arising

from Congress’s effort to “correct” the federal courts’

application of the Federal Railroad Safety Act in

specific litigation. The Eighth Circuit (and this Court

by denying certiorari) finally resolved one of

respondents’ substantive claims—for negligent track

inspection—-before Congress purported to “clarifly]”

the statute. The Eighth Circuit’s later reliance upon

the “clarification” to revisit and reverse the resolution

of that claim contravenes Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211 (1995), and conflicts with other

circuits’ interpretations of Plaut’s “final decision”

requirement. The Eighth Circuit also appled the

“clarification” to reverse the initial resolution of other

claims then on appeal even though Congress did not

change the underlying law, thereby directly

implicating the continued vitality of United States v.

Klein, 80 U.S. (13 Wall.) 128 (1871).

Respondents sidestep these issues by assuming the

answers to the questions presented. In their view, a

claim resolved by a court of appeals, even after this

Court’s denial of certiorari, is never final under Plaut

if courts continue to address other claims in the case.

To avoid Klein, respondents attribute a meaning to

Congress's “clarification” that the statute cannot bear

and candidly assert that Klein has effectively become

a nullity. By assuming away the questions

presented, respondents do not meaningfully address

the conflicts among the courts of appeals that justify

review.

ARGUMENT

A. The Decision Below Contravenes Plaut

And Conflicts With Decisions Of Other

Circuits.

1. Respondents recognize that Plaut would bar the

Eighth Circuit's decision below, and a circuit conflict

would arise, if the court of appeals’ earlier decision in

Lundeen I were “final.” To avoid this result, they rely

on the false premise that Lundeen I was

“interlocutory” and the issues it addressed were still

“pending on appeal” when Congress clarified FRSA

§ 20106. See Resp. Br. 14, 18-21; U.S. Br. 7-10. To

the contrary, the particular claim addressed in

Lundeen I had been finally decided and was no longer

pending when Congress acted.

Respondents’ complaint included four distinct state-

law claims. lLundeen I considered one of those

claims-—negligent track inspection—and held that

federal law completely preempted that cause of

action. Pet. App. 76a-78a. In so holding, the court

necessarily concluded that “there is, in short, no such

thing as a state-law claim” for negligent inspection,

federal law “wholly displaces the state-law cause of

action,” and thus “the exclusive cause of action for the

claim asserted” must be found in federal law, if at all.

Beneficial Nat’ Bank v. Anderson, 539 U.S. 1, 8, 11

(2003); Pet. App. 75a-78a.

As respondents have previously recognized,

Lundeen I finally resolved their negligent track

inspection claim. In seeking this Court’s review,

respondents admitted that the Eighth Cuircuit’s

decision, unless reversed, would be the judiciary’s

final word on that claim: they conceded that FRSA

provided no cause of action for negligent inspection

and no state-law cause of action remained after

Lundeen I, and thus they would “have no remedy at

all” for negligent inspection unless this Court granted

review and reversed. Petition for Writ of Certiorari

at 2, Lundeen v. Canadian Pac. Ry. Co., No. 06-528

(filed Oct. 16, 2006). Certiorari was denied, Pet. App.

80a, and the case was remanded for consideration of

respondents’ remaining claims.

On remand, the district court confirmed that

Lundeen I had finally resolved the negligent

inspection claim. Respondents tried to avoid that

outcome by asserting that the Eighth Circuit was

“confused” and did not intend this result. Pet. App.

92a. The district court “decline[d] the invitation to sit

in review of the Court of Appeais,” and recognized

that Lundeen Is complete preemption determination

“conclude[d] the inquiry” concerning negligent

inspection (respondents having already conceded that

they had no such claim under federal law). Id. at

9la-92a. In contrast, the district court separately

addressed respondents’ other claims and found them

to be preempted. Id. at 94a-96a. The district court’s

ruling on these other issues was the only matter

pending on appeal when Congress “clarifijed]” the

FRSA. |

As Judge Beam correctly observed, Lundeen I's

complete preemption holding foreclosed respondents’

state-law negligent inspection claim in “a _ final

judgment that cannot constitutionally be reopened or

reversed by Congress or this court,” and it was

therefore not “still on appeal’ in any sense

contemplated by Plaut.” Pet. App. 37a-39a.

Respondents mistakenly rely on cases holding that

this Court may “reach back and correct errors in the

interlocutory proceedings below” upon review of a

final judgment. See Resp. Br. 19-20; U.S. Br. 8. But

those cases addressed clearly interim decisions like

an interlocutory order remanded for entry of a final

trademark infringement decree (Hamilton-Brown

Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251 (1916)); an

order remanding a case for a new trial on evidentiary

grounds (Mercer v. Theriot, 377 U.S. 152 (1964)): an

order remanding a_= discrimination case _ for

determination of remedial measures (United States v.

Virginia, 518 U.S. 515 (1996)); and an interlocutory

appeal of a trial verdict before consideration of

damages (Hanover Shoe, Inc. v. United Shoe Mach.

-Corp., 392 U.S. 481 (1968)). Those cases have no

application when, as here, a court finally determines

that a cause of action does not exist and all appeals

are exhausted. See Toledo Scale Co. v. Computing

Scale Co., 261 U.S. 399, 418 (1923) (when a final

judgment is denied review on certiorari, this Court is

“expressly denied power to review” that earliei

judgment if another aspect of the case later comes

before the Court).!

2. The finality of Lundeen fs disposition of the

negligent inspection claim is fatal to respondents’

1 For this reason, there is also no ment to the Government’s

suggestion that this case presents an issue related to Carnegie-

Mellon University v. Cohill, 484 U.S. 343 (1988), that will likely

be addressed in Carlsbad Tech., Inc. v. HIF Bio, Inc., No. 07-

1437 (argued Feb. 24, 2009). Jurisdiction to render the final

decision in Lundeen / is simply not at issue in this petition

seeking review of Lundeen II. See Plaut, 514 U.S. at 229 (“The

issue here is not the validity or even the source of the legal rule

that produced the Article III judgments, but rather the

immunity from legislative abrogation of those judgments

themselves.”). The Government's argument is also substantive-

ly incorrect: the district court in Lundeen J remanded based on

Cohill and under 28 U.S.C. § 1367(c), Resp. App. 7 & n.4, the

latter of which ts not at issue in Carlsbad. In any event, the

pendency of Carlsbad would be at most a reason to hold the

petition in this case, not to deny it.

opposition to certiorari on the first question

presented. They concede that a judgment is “final”

under Plaut when appeals run out and the decision

“becomes the last word of the judicial department

with regard to a particular case or controversy;”

Congress cannot revise a judicial determination

unless it is “pending before the [court of appeals] on a

direct appeal.” Resp. Br. 17-18 (quoting Plaut, 514

U.S. at 227).2, Respondents unsuccessfully appealed

Lundeen Is disposition of the negligent inspection

claim directly to this Court. That claim most

certainly was not pending on appeal in Lundeen II.

The Government, for its part, simply endorses the

Eighth Circuit’s reasoning and denies that a cause of

action can ever become “final” for purposes of Plaui

when the claim was part of a case that remains

before the courts. U.S. Br. 8-9. This presumes an

answer to the first question presented, and as such is

not a reason to deny the petition. See Robert L. Stern

et al., Supreme Court Practice 255 (8th ed. 2002).

Moreover, other courts have rejected the view of the

Eighth Circuit and the Government. See Pet. 13-15.

The Government’s advocacy for one side of that

dispute simply underscores the need for this Court’s

review.

In any event, the Government’s interpretation of

Plaut is wrong. The Government selectively quotes

snippets from Plaut that refer to “cases” or “suits,”

but Plaut never endorsed the notion that Congress

can reverse final judicial decisions merely because

2 Respondents insinuate that the petition misrepresents Plaut

by “omi[tting] ... critical language,” but all the language respon-

dents quote merely reinforces Plaut’s holding, made clear in the

petition, that a judgment becomes final once the time to appeal

has expired. Compare Resp. Br. 16-18, with Pet. 10-12.

the judiciary is still considering other issues in a

case. Instead, Plaut shields from legislative revision

those judgments that resolve “a particular case or

controversy,’ and the “distinction between judgments

from which all appeals have been foregone or

completed and judgments that remain on appeal” is

critical to Plaut’s constitutional analysis. 514 U.S. at

227 (emphasis added).'

Nor is it an answer to maintain that a federal court

must continually reassess jurisdiction over ongoing

litigation. See Resp. Br. 18-19; U.S. Br. 8-9. Such

jurisdictional determinations are necessary for claims

on direct appeal, such as the causes of action at issue

in Lundeen IT. But as respondents admit, upon entry

of a final judgment on a specific claim (as with their

negligent inspection claim), jurisdiction is “considered

forever settled as between the parties” and cannot be

reopened on collateral attack. Baldwin v. Iowa State

Traveling Men’s Ass'n, 283 U.S. 522, 524-25 (1931);

Resp. Br. 21. Moreover, no occasion could arise to

revisit that prior determination here because

jurisdiction clearly existed for Lundeen II by virtue of

the other state law claims the district court deemed

preempted.4

3 Congress sought to overturn pre-existing law in this cage

only with respect to individual “pendiny State law causes of

action,” 49 U.S.C. § 20106(b)(2), not entire lawsuits.

4The Government similarly contends that review is unwar-

ranted because a state court can “adjudicate petitioners’ pre-

emption defense under the FRSA.” U.S. Br. 17. This is wholly

beside the point: petitioners contest the Eightn Circuit’s

application of Congress's “clarification,” an issue independent of

preemption that presents Plau!: and Klein issues not before the

state courts. Petitione~s do not seek review on the merits of any

preemption defenses.

3. Having assumed that the Eighth Circuit’s

disposal of the negligent inspection claim in Lundeen

I was not final, respondents have no answer to the

circuit split created by Lundeen IJ. Respondents

acknowledge that, but for their assertion that “the

present appeals ... are a continuation of the primary

litigation that was previously the subject of an

interlocutory appeal in Lundeen J,” Lundeen I would

conflict with the Fourth, Fifth, and Tenth Circuit

decisions cited in the petition (at 13-15). U.S. Br. 10;

Resp. Br. 25-26. Respondents’ attempts to

distinguish United States v. Vazquez- Rivera, 135 F.3d

172 (1st Cir. 1998), are particularly unpersuasive.

The First Circuit held that when a court renders a

final decision on the meaning of a federal statute (as

in Lundeen I), a later attempt by Congress to

“clar f[y]” that meaning is “legally irrelevant” under

Plaut, even if other aspects of the case remain before

the courts. Jd. at 177. Respondents note that

Vazquez-Rivera arose in the context of an Ex Post

Facto clause challenge, Resp. Br. 24-25; U.S. Br. 9,

but the First Circuit nonetheless’ explicitly

interpreted Plaut to mean that “post hoc statements

regarding the original legislative intent do not affect

this court’s previous, and final, finding as to what

that intent was.” Vazquez-Rivera, 135 F.3d at 177.

This holding squarely conflicts with Lundeen II.

B. The Decision Below Is Inconsistent With

Klein And Deepens Longstanding Con-

flicts Among The Courts Of Appeals.

1. Under Alein, Congress can only “compell[]

changes in law” by substantive amendment; it may

not dictate “findings or results under old law.”

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429,

438, 441 (1992). Respondents contend that

Congress's “clarification” of § 20106 satisfies Klein

because it “added two entirely new subsections of

text” to the FRSA and “alters the FRSA in a manner

that sets out substantive standards.” U.S. Br. 12, 14

n.7; Resp. Br. 29. This argument ignores Congress’s

reenactment of identical substantive’ statutory

language, and its explanation that the additional

“interpretive” language was designed specifically to

target this litigation and to “rectify the Federal court

decisions related to the Minot, North Dakota

accident” by “clarifyfing] the intent and

interpretations of the existing preemption statute”

without making “any substantive change in the

meaning of the provision.” H.R. Conf. Rep. No. 110-

259, at 351 (2007), reprinted in 2007 U.S.C.C.A.N.

119, 183 (“Conf. Report”); see Pet. 5-6, 18-19.

“Clarify{ing]” a statute without “substantive[ly]

chang[ing] the meaning of the provision” in order to

overturn a particular judicial decision contravenes

Klein.

In MKobertson, this Court noted that’ the

constitutionality of statutes purporting to direct the

outcome of a particular case without substantively

changing the law’s meaning is an unsettled question

that it expressly left unresolved. 503 U.S. at 441.

The circuits are deeply split on this point and have

repeatedly asked for this Court’s guidance. See Pet.

19-21, 23-25. That the courts of appeals have

ultimately concluded in these cases that Klein is not

5 The Government implausibly suggests that Congress “likely”

used the word “clarification” to mean a substantive amendment

designed to resolve a split among the circuits, see U.S. Br. 13,

and thus resorts to arguing that “clarification” means something

different from its plain meaning and inconsistent with the

statute’s terms targeting this litigation. The Government also

has no answer to the Conference Report and floor statements to

the contrary.

violated, see U.S. Br. 14-15; Resp. Br. 32, or that

these cases interpret statutes other than FRSA

§ 20106, see Resp. Br. 35-36, is beside the point. The

relevant consideration is that the courts of appeals

have articulated starkly different interpretations of

Klein, creating a circuit split deepened by the Eighth

Circuit in this case.

Contrary to respondents’ assertion, the Fourth and

Seventh Circuits do not “use the same reasoning” as

other circuits in applying Alein. Id. at 31. The

Fourth and Seventh Circuits regard Klein as focused

not on whether Congress has legislated a new

“standard,” but on whether Congress has (as in this

case) encroached upon “the interpretive power of the

courts” by “dictat{ing] the judiciary’s interpretation

of governing law” without actually changing that law,

thereby “mandat[ing] a particular result in any

pending case.” Green v. French, 143 F.3d 865, 874-75

(4th Cir. 1998), abrogated in part on other grounds,

Williams v. Taylor, 529 U.S. 362 (2000); Lindh v.

Murphy, 96 F.3d 856, 872 (7th Cir. 1996) (en banc),

reu d on other grounds, 521 U.S. 320 (1997).®

Other circuits have adopted a far narrower view of

Klein and accept any “new standard” enacted

“through the legislative process.” Pet. App. 12a; Pet.

19-20 (citing cases from the Second, Ninth, Tenth,

and D.C. Circuits). The Eighth Circuit adopted this

6 Respondents err in contending that other cases in the

Fourth and Seventh Circuits apply a more relaxed standard.

Resp. Br. 32 (citing City of Chicago v. U.S. Dep't of Treas., 423

F.3d 777 (7th Cir. 2005), and Plyler v. Moore, 100 F.3d 365 (4th

Cir. 1996)). Those cases concluded that Congress enacted

substantive amendments to the law and did not seek merely to

change the outcome of a case by directing how the law must be

interpreted. See City of Chicago, 423 F.3d at 783; Plyler, 100

F.3d at 372.

view in holding that Klein permits Congress to

“clarify” § 20106, without purporting to change the

statute’s meaning, in order to change the outcome of

this case. The Fourth and Seventh Circuits would

reach a different conclusion.

2. Respondents also cannot avoid the conflict

between the Eighth Circuit and other courts of

appeals concerning the effect of “clarification”

amendments. As explained in the petition, the

Eighth Circuit treated Congress’s “clarification” of

§ 20106 as a binding change in law, while other

courts have regarded such amendments as merely

advisory views of a subsequent Congress. See Pet.

21-23. In particular, the Seventh Circuit has warned

that Congress’s use of clarifying amendments raises

serious separation of powers questions under Klein

that call for “clarification from the Supreme Court.”

Paramount Health Sys., Inc. v. Wright, 138 F.3d 706,

710-11 (7th Cir. 1998).

The Government acknowledges these concerns but

contends that they do not arise in this case because

the Eighth Circuit did not “interpret a party’s rights

under the prior version of a statuce,” and instead

applied the clarification as if it were a new statute.

U.S. Br. 15 n.8. But that is exactly the point: the

Eighth Circuit’s treatment of the clarification as a

binding direction to displace prior applications of the

statute is what generates the circuit split and

requires this Court’s review.

The other respondents repeat the insupportable

view that the “clarification” was _ intended

substantively to change § 20106 (without citing

Congress's statements to the contrary) and contend

that, in any event, Lundeen IJ was based upon the

jurisdictional provisions of § 20106(c), which they

assert is not part of the clarification amendment.

This argument misreads both the statute and

Lundeen II. Sections 20106(b) and (c) were enacted

together as a single “clarification” of § 20106(a). See

Conf. Report at 351, reprinted in 2007 U.S.C.C.A.N.

at 183-84. Moreover, the Eighth Circuit repeatedly

cited § 20106(b) and Congress’s clarification of the

law as its justification for reversing the district

court’s preemption holding. See Pet. App. 9a-10a,

12a-16a. The circuits are split over whether such a

statutory clarification should be treated as binding,

and nothing in respondents’ brief addresses this

issue.

In the end, respondents are forced to argue that

Klein cannot be read according to its terms and is, in

effect, a dead letter. See U.S. Br. 12, 14-15; Resp. Br.

30-32. Those arguments support granting the

petition: if Klein is to be laid to rest, that decision

should result from this Court’s considered judgment.

CONCLUSION

For these reasons and the reasons stated in the

petition, a writ of certiorari should be granted.

Respectfully submitted,

TIMOTHY R. THORNTON CARTER G. PHILLIPS*