Opposition Brief — O & G Industries, Inc. v. National Railroad Passenger Corp. (No. 08-895)

Qo FILED

(3) MAR 8 - 2009

OFFICE OF

No.08-895 | SUPREME COURT He

In THE

Supreme Court of the United States

O&G INDUSTRIES, INC.,

Petitioner,

- against -

NATIONAL RAILROAD PASSENGER CORPORATION,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED States Court OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Mark S. LANDMAN

Counsel of Record

WILLIAM G. BALLAINE

MICHAEL A. JOSEPH

LANDMAN CorsI BALLAINE & Forp PC.

120 Broadway

New York, New York 10271

(212) 238-4800

Attorneys for Respondent

National Railroad Passenger

March 10, 2009 Corporation

1

QUESTION PRESENTED

1. Should this Court review the Court of

Appeals’ determination that 49 U.S.C. § 28103(b),

which authorizes Respondent National Railroad

Passenger Corporation to enter into indemnity

contracts that allocate financial responsibility for

claims against it, preempts the Connecticut statute

that Petitioner argues may nullify its indemnity

obligation to Respondent, where the Connecticut

statute stands as a substantial obstacle to the full

purposes and objectives of Congress as revealed by the

text of § 28103(b), the entire legislative scheme and

the relevant Senate and House Committee Reports?

ae

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondent National Railroad Passenger

Corporation, a corporation § providing intercity

passenger rail service, has no parent company.

However, American Premiere Underwriters, Inc., and

Burlington Northern Santa Fe Railroad Company own

10% or more of Respondent’s stock.

ill

TABLE OF CONTENTS

QUESTION PRICSION £IGED ..0sccesccessessesescvscorosersecerseosnes

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6........ i

v1

TABLE OF AUTHORITIES .......c0csscccccossssseespessssssosssees lv

STATEMENT OF THE CASE .....................cccccsssseeeeeeeee> 1

REASONS FOR DENYING THE WRIT....................... 6

CIR is coricieeccixsaninni gultinhessntanemneniusaataieienatiaied 25

1V

TABLE OF AUTHORITIES

CASES

Alcorn v. Union Pac. R. Co, 50 S.W.3d 226 (Mo. 2001)

ae 18

Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008)....... 10

American Airlines, Inc. v. Wolens, 513 U.S. 219

RIT RSTn ert erate ef eoeredot ee MRO Te BRL OR REAR 10

Beausoleil v. National R.R. Pass. Corp., 145 F.Supp.2d

SID CE. MEGOe., BOOT) 5 ncosccseiscccnncassceess a ee eee 18

Bedford Affiliates v. Sills, 156 F.3d 416

I aireibcicndticeicectarsnevxtnaaniidinnenieneivinternenseessnonnansi 6

California v. ARC America Corp., 490 U.S. 93

Te cise tiled 6

Clean Air Markets Group v. Pataki, 338 F.3d 82

he, WD cc cesvicessesscttcnss: RESEa cert nee ar eC 6

Cox Cable Advisory Council v. Dep’t of Public Utility

Control, 259 Conn. 56, 788 A.2d 29 (2002)................ 6

Crosty v. National Foreign Trade Council, 530 U.S.

a tunusiablan passim

District of Columbia v. Carter, 409 U.S. 418

I a seh dacbeabninldewate 10

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987)..8

Gibson v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824). ..6

4

Hines v. Davidowitz, 312 U.S. 52, 6€-67(194)) ........ 6,8

Justice v. CSX Transp., 908 F.2d 119

a Sata ptsedcebatnsidehiowianvnn veins 18

Lebron v. National R.R. Pass Corp., 513 US 374

SE TERRIER as kc caP Neen Er Oe EN 11

National R.R. Pass. Corp. v. Consol. Rail Corp., 698 F.

Supp. 951 (D.D.C. 1988), vacated on other grounds,

892 F.2d 1066 (D.C. Cir. 1990) .................... 12, 14, 15

National R.R. Pass. Corp. v. Lexington Ins. Co., Civil

No. 01-1815, 2003 WL 24045159 (D.D.C. May 20,

2003), affd, 365 F.3d 1104 (D.C. Cir. 2004)............ 18

Netraingas v. Sanchez, 495 U.S. 182 (1990)............... 10

United States v. Locke, 529 US 89 (2000) .................... 6

Savage v. Jones, 225 U.S. 501 (1912) 00.0... eee 8

United States v. Price, 383 U.S., 787 (1966)............... 10

Wyeth v. Levine, --S. Ct.--, 2009 WL 529172 (U.S.

te ec ssnbisupenanbentaenl 8, 23, 24

CONSTITUTIONAI, AND STATUTORY AUTHORITIES

United States Constitution, Article

Te i a 6

Amtrak Reform and Accountability

Act of 1997, Pub. L. No. 105-134,

December 2, 1997, 111 Stat. 2570................... passim

vl

Rail Passenger Service Act of 1970, Pub. L.

Ei, PW IRI, RO cere sesecescseneessecnecessvecessosenseee 11, 22

49 U.S.C. § 24101(a)(1) and (5)............... ditepeecee 22

iS I os cnses coescadpauecs cvvvanvpanasedenseentbeniie 17

Be, We IEE onic sccececessevecrevsesecesesusesecconcors passim

MP EIAs Hoes cesscscnseccceccnccosscccccnseececcessonsceees 4,17

49 U.S.C. §§ 24901-24909 00... ceeccec cece seeseeseceeeceeeseee 22

AD U.S.C. §§ 26101-26105 00. ceccceccccccececcescesceseeneeeees 22

TS eS ae passim

OTHER AUTHORITIES

H.R. Rep 105-251, U.S. House of Representatives

Committee on Transportation and

Infrastructure (Sept. 17, 1997) ..................00000 passim

S. Rep 105-85, U.S. Senate Committee

on Commerce, Science and

Transportation (Sept. 24, 1997)....................00 passim

1

STATEMENT OF THE CASE

Stripped of the numerous issues resolved in

protracted proceedings below, what remains of this

lawsuit represents the last-ditch effort by Petitioner

O&G Industries, Inc. (“O&G”) to avoid its contractual

indemnity obligations to Respondent National

Railroad Passenger Corporation (“Amtrak”) under an

Octoker 2003 Temporary Permit to Enter Upon

Property ‘the “Agreement”). App. 7.!

Both the U.S. District Court for the District of

Connecticut (App.48, 62-78) and the U.S. Court of

Appeals for the Second Circuit (App. 1, 12-21)

carefully reviewed and rejecved Petitioner's efforts to

repudiate this Agreement by relying upon on a state

statute that violated the plain language and the spirit

of 49 U.S.C. § 28103(b).2. App. 21, 75. Petitioner has

not cited to a single decision anywhere that conflicts

with these lower court determinations.

The contested Agreement, which provided no

benefit to Amtrak, allowed Petitioner access to

Amtrak’s property to perform construction work for

the Connecticut Department of Transportation

relating to the rebuilding of an interstate highway

between New Haven and Branford, Connecticut, in the

Northeast Corridor. App. 7, 63-64. Petitioner's work

necessarily involved fouling -- that is, obstructing -

S|

Any reference to “App. __” is to the Appendix to the

Petition for A Writ of Certiorari filed by Petitioner herein.

2 The Second Circuit’s Opinion is reported at 537 F.3d 153

(2d Cir. 2008).

2

Amtrak’s active Northeast Corridor tracks at the O&G

worksite. See App. 6, 7, 49-54, 59.

Under the Agreement, Petitioner undertook to

“use all necessary care and precaution to avoid

accidents, delay or interference with [Amtrak’s] trains

or property” and to abide by Amtrak’s safety

regulations. App. 7. Amtrak agreed to provide certain

flag protection and other protection necessary to

maintain the “safety and continuity of railroad traffic”

over which Amtrak maintained exclusive control.

App. 7. However, the provision of protective services

would “not relieve [Petitioner] from fits] complete

responsibility for the adequacy and safety of [its]

operations.” App. 7.

As a key element of the consideration Amtrak

received in exchange for allowing O&G perform work

on Amtrak’s property that would necessarily interfere

with its rail passenger service operations, O&G

agreed, inter alia, that it would defend, indemnify and

hold harmless Amtrak “irrespective of [Amtrak’s]

negligence or fault, from and against any and all

losses and liabilities, . . . claims causes of action...

arising out of or . . . resulting from activities or the

work performed by [O&G or] its . . . employees.” App.

7-8. This indemnity provision applies, by its

unambiguous terms, to two underlying tort claims that

were resolved in the proceedings below, claims which

stemmed from an injury to and a death suffered by

O&G employees while they were performing work on

3

Amtrak’s property pursuant to the parties’ Agreement.

App.5-6, 17-18, 21.5

In its Petition, O&G complains that the U.S.

District Court for the District of Connecticut and the

U.S. Court of Appeals for the Second Circuit each

erred by rejecting Petitioner's attempt to avoid its

contractual obligation under the Agreement’s

indemnity provision based upon Conn. Gen. Stat. §52-

572k,4 which declares void as against public policy

agreements in construction contracts to indemnify a

party against its own negligence. See App. 1-33

(reprinting the Second Circuit’s Opinion); App. 34-47

and App. 48-76 (reprinting, respectively, the district

court’s ruling granting judgment notwithstanding the

verdict and its earlier ruling granting summary

judgment). As both the district court and the court of

appeals found, however, enforcement of the

Connecticut statute would violate both the plain

language and the spirit of 49 U.S:C. § 28103(b), which

3 The district court below found that a third underlying

tort claim, involving an injury to an individual who was not

employed by O&G, was not covered by the Agreement’s

indemnification provision.

4 The Connecticut statute, which only applies to

construction contracts, is reprinted at App. 83.

© In the Court of Appeals for the Second Circuit, Amtrak

contended in the alternative that the Agreement with

Petitioner was not a construction contract subject to Conn.

Gen. Stat..§ 52-572k; the Second Circuit did not, however,

address the substance of this argument, finding that it had

been waived and was, in any event, of little importance

because of the Court’s decision on the preemption issue.

App. 12-13 and n. 6.

4

broadly authcrizes Amtrak to “enter into contracts

that allocate financial responsibility for [any] claims

[against Amtrak].” 49 U.S.C. § 28103(b) and (e). See

App. 16°21, 71-75. The lower courts held that as a

result, the Connecticut statute stands as a clear

obstacle to the full accomplishment of Congress’

objectives in enacting this specific provision as part of

the Amtrak Reform and Accountability Act of 1997,

Pub. L. No. 105-134, December 2, 1997, 111 Stat.,

2570 (the “Amtrak Reform Act”), legislation enacted to

alleviate Amtrak’s severe financial problems and allow

rail passenger transportation providers like Amtrak to

enter into enforceable indemnity agreements with

other parties that would not be nullified by any state

law or policy. /d.

As discussed in greater detail below, O&G’s

Petition rests fitfully on a series of false premises.

First, Petitioner professes to find ambiguity in the

federal statute at issue. The statute, however, is not

ambiguous; it is broad.

Next, Petitioner professes to find a narrow

Congressional purpose and intent in the legislative

history that somehow justifies O&G’s attempt to rely

on the Connecticut statute to renege on its contractual

indemnity obligation. The applicable Senate and

House Committee Keports, however, reinforce the

clear and manifest purpose and intent behind the

federal statute’s broad language and undermines

Petitioner's effort to avoid its agreement to indemnify.

Petitioner also suggests that this dispute

provides the Supreme Court with the chance to clarify

5

what O&G characterizes as the confusing and

uncertain scope of the Court’s implied preemption

doctrine. Petition at 33. Petitioner is wrong. The

straightforward question here is whether the

Connecticut statute stands as an obstacle to the

accomplishment and execution of the full purposes and

objective of Congress in enacting § 28103 (b),

resolution of which calls for “a matter of judgment, to

be informed by examining the federal statute as a

whole and identifying its purposes and intended

effects.” Crosby v. National Foreign Trade Council,

530 U.S. 363, 373 (2000). That is precisely what the

Second Circuit Court of Appeals did in its Opinion

before arriving at a determination that is fully

supported by the relevant federal statute and

legislative history.

Finally, Petitioner complains that the Second

Circuit’s Opinion failed to expressly acknowledge a

presumption against federal preemption. But the only

real question is whether the Connecticut statute

“presents a_ sufficient obstacle to the full

accomplishment of Congress’ objectives” under the

applicable federal statute. Crosby, 530 U.S. at 374, n.

8. Clearly, in this case, it does, fully warranting

invocation of federal preemption.

For reasons more fully described in the

following section, there is no compelling reason for this

Court to grant O&G’s Petition. The conclusion reached

by the lower courts in ¢uis case is consistent with this

Court’s standards for resolving the conflict preemption

issue presented here. Moreover, Petitioner cannot

point to any other decisions in the lower courts

6

addressing this specific federal statute. This case thus

presents no split in the circuits and suggest no lower

court confusion over the preemptive effect of §

28103(b). Accordingly, this Court should deny the

Petition.

REASONS FOR DENYING THE WRIT

Consideration of the Petition begins with the

fundamental proposition that Congress has_ the

unquestioned constitutional power to preempt state

law under the Supremacy Clause, Art. VI, cl. 2 of the

United States Constitution. See Gibson v. Ogden, 9

Wheat. 1, 211, 6 L.Ed. 23 (1824). Moreover, this Court

has repeatedly and consistently instructed that a state

law must yield to a congressional enactment even

without an express provision for preemption. Crosby,

530 U.S. at 372; United States v. Locne, 529 U.S. 89,

109-12 (2000); California v. ARC America Corp., 490

U.S. 93, 100-01 (1989); Hines v. Davidowitz, 312 U.S.

52, 66-67 (1941).

Thus, this Court “will find preemption where. .

. ‘under the circumstances of [a] particular case, [the

challenged state law] stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Crosby, 530 U.S. at 373,

quoting Hines, 312 U.S. at 67; see, e.g., Clean Aur

Markets Group v. Pataki, 338 F.3d 82, 87 (2d Cir.

2003); Bedford Affiliates v. Sills, 156 F.3d 416, 426-27

(2d Cir. 1998); see also Cox Cable Advisory Council v.

Dep't of Public Utility Control, 259 Conn. 56, 62-63,

788 A.2d 29, 33 (2002). This, in shorthand terms, is

commonly referred to as conflict preemption pursuant

to the Supremacy Clause.

There is no confusion or uncertainty about the

basic standards for determining whether to invoke

conflict preemption under the Supremacy Clause. In

Crosby, 530 U.S. 363, this Court unanimously held

that a Massachusetts law restricting the authority of

its agencies to purchase goods or services from

companies doing business with Burma was invalid

under the Supremacy Clause of the U.S. Constitution

owing to its threat of frustrating federal statutory

objectives. Crosby, 530 U.S. at 366. In the majority

opinion by Justice Souter, joined in by six other

Justices, the Court clearly articulated applicable

standards for analyzing conflict preemption. Crosby,

530 U.S. at 372-74.6

The Court’s task is to examine the federal!

statute “as a whole” and identify “its purposes and

intended effects” and then make a judgment whether

the obstacle presented by the state law is a “sufficient

obstacle” to require preemption. Crosby, 530 U.S. at

6 Justice Scalia, in a concurring opinion in which Justice

Thomas joined, concurred with the Court’s judgment in

Crosby but took issue with the majority opinion’s citation to

statements by sponsors of legislation, views expressed by

individual] legislators, statements of the executive branch

and letters to Congressional committees. Crosby, 530 U.S.

at 388-91 (Scalia, J., concurring). As hereafter discussed,

the Second Circuit’s conflict preemption finding is

supported by the text of § 28103(b), the statutory scheme

and the legislative history found in the relevant House and

"Senate Reports; there is no need to rely on the type of

legislative sources with which the concurring opinion in

Crosby takes issue.

8

373 and 374, n. 8. The “entire scheme of the statute

must of course be considered, and that which needs

must be implied is of no less force than that which is

expressed.” J/d., 530 U.S. at 373. If the statute’s

purpose “cannot otherwise be accomplished -- if its

operation .. . must be frustrated and its provisions be

refused their natural effect -- [then] the state law must

yield to the regulation of Congress within the sphere of

its delegated power.” Jd., 530 U.S. at 373 (quoting

Savage v. Jones, 225 U.S. 501, 533 (1912), also quoted

in Hines, 312 U.S. at 67, n. 20).

The state’s historic police powers may be

superseded by federal statute when that is the clear

and manifest purpose of Congress. Wyeth v. Levine, --

S. Ct.--, 2009 WL 529172, *5 (U.S. March 4, 2009),

(quoted citations omitted). “[T]he purpose of Congress

is the ultimate touchstone.” Wyeth, --S. Ct.--, 2009

WL 529172, at *5; Fort Halifax Packing Co. v. Coyne,

482 U.S. 1, 8 (1987).

Measured against these standards, the Second

Circuit’s finding of conflict preemption does not, by

any means, warrant further review by this Court.

The specific federal statute at issue is found in

subsection (b) of § 28103, Title 49, United States Code,

and, inter alia, reads as follows:

(b) Contractual obligations. -- A

provider of rail passenger

transportation may _ enter into

contracts that allocate financial

responsibility for claims.

49 U.S.C. § 28103(b). Section 28103(b) was enacted as

part of an array of legislative measures contained in

the 1997 Amtrak Reform Act, refiecting, inter alia,

Congress’ grave concern over Amtrak’s financial

condition and its ability to compete effective in the

intercity travel market. App. 118-123, 139-144.

Section 28103(b) clearly empowers Amtrak to allocate

financial responsibility for the underlying claims

involved in this dispute by entering into the

indemnification arrangement contained in Amtrak’s

Agreement with O&G.

First, there is no dispute that Amtrak is a

“provider of rail passenger transportation” covered by

subsection (b) of § 28103.

Second, there is no question that the underlying

claims involved in this contractual dispute fall within

the category of “claims” that are covered by subsection

(b); the term “claims” in subsection (b) is broadly and

unambiguously defined in subsection (e)(1)(A) to

mean, in this case, “a claim made... against Amtrak.”

49 U.S.C. § 28103(e)(1)(A).

Third, the Amtrak Agreement with O&G is

unquestionably a “contract[ ] that allocatels] financial

responsibility for claims.” The Agreement allocates to

O&G full contractual responsibility for the two

underlying claims arising out of an injury or death to

O&G employees, “irrespective of [Amtrak’s] negligence

or fault....” App. 7-8.

10

Petitioner argues that the language of §

28103(b) is ambiguous. It is not. Section 28103(b) is,

rather, broad and unqualified, with no suggestion that

the rail passenger transportation provider's right tc

“enter into contracts that allocate financial

responsibility for claims” is smbject to, or may be

trumped by, any law or policy that bars an allocation

which permits a negligent party to be indemnified.

Cf,; Ngiraingas v. Sanchez, 495 U.S. 182, 192 (1990)

(observing that the Court is “not at liberty to seek

ingenious analytical instruments’ to avoid giving a

congressional enactment the broad scope its language

and origins may require”)(quoting United States v.

Price, 383 U.S., 787, 801 (1966) and District of

Columbia v. Carter, 409 U.S. 418, 432 (1973)); Altria

Group, Inc. v. Good, 129 S. Ct. 538, 548 (2008)

(stressing that the Court’s conclusion that a state-law

claim was preempted in American Airlines, Inc. v.

Wolens, 513 U.S. 219 (1995) turned on “the unusual

breadth” of a federal statute’s preemption provision).

The breadth of § 28103(b) points to one logical

conclusion -- Congress intended to authorize providers

of rail passenger transportation services, such as

Amtrak, to enter into contracts allocating

responsibility for claims without regard to any laws

that might otherwise impair or nullify such

arrangement.

In its effort to support the argument thet the

broad language of § 28103(b) is ambiguous, O&G

contends that Congress meant to do nothing more

than “givel } Amtrak the authority to enter into

11

indemnification agreements.” Petition at 21. This

interpretztion is utterly implausible.

In the first place, § 28103(b) does not apply only

to Amtrak. It applies, by its terms, to any “provider of

rail passenger transportation.” It takes a flight cof

fancy to believe that Congress enacted this provision

out of concern that, absent Congress’ specific

authority, providers of rail passenger transportation

may lack authority to enter into indemnity

agreements allocating financial responsibility for

claims. Moreover, there is not a shred of icgislative

history to support such an improbable notion

More important, Congress was well aware when

§ 28103(b) was enacted in December 1997 that Amtrak

already had full authority to enter into indemnity

contracts. Amtrak was created in 1971, pursuant to

an Act of Congress, the Rail Passenger Service Act of

1970, in order to provide “modern, efficient, intercity

rail passenger service.” Rail Passenger Service Act of

1970, Pub. L. 91-518, § 101, 84 Stat. 13828; see Lebron

v. National R.R. Pass. Corp., 513 U.S. 374, 383-85

(1995). At that time, Congress specifically empowered

Amtrak to own, manage, operate and contract for the

operation of intercity rail passenger trains. Rail

Passenger Service Act of 1970, § 305.

Congress also knew in 1997 that Amtrak had

for many years been entering into and relying upon

numerous contracts containing indemnification

provisions in order to conduct its business. This is

demonstrated by H.R. Rep. 105-251, the House

12

Committee eport underlying § 28103,7 which

specifically references the federal district.court’s 1988

decision in National #.R. Pass. Corp. v. Consol. Rail

Corp., 698 F. Supp. 951, 955-66 (D.D.C. 1988), vacated

on other grounds, 892 F.2d 1066 (D.C. Cir. 1990).

That decision discusses at great length the history

behind indemnification contracts negotiated during

the 1970’s and 1980’s between Amtrak and freight

railroads over whose tracks Amtrak operate in many

parts of the country outside of the Northeast Corridor.

See App. 129.

Patently, therefore, Congress had no cause

whatsoever to enact § 28103(b) in 1997 in order to give

Amtrak contractual authority it had possessed and

been exercising since its inception decades earlier.

Accordingly, Petitioner’s argument that § 28103(b)

simply represents Congress’ intention to give Amtrak

authority to enter into indemnification agreements is

impiausible, if not frivolous.

In addition, both the Amtrak Reform Act, of

which § 28103(b) is an integral part, and the

legislative history underlying this legislation, provide

powerful reinforcement for the conclusion that §

28103(b) was broadly intended to authorize Amtrak,

and other rail passenger providers, to enter into

indemnity agreements that would not be impaired or

nullified by any other law or public policy.

F H.R. Rep 105-251, from the U.S. House of

Representatives Committee on Transportation and

Infrastructure (Sept. 17, 1997), is reprinted at App. 110-

138.

13

As a threshold matter, the Amtrak Reform Act

includes specific findings that “intercity rail passenger

service is an essential component of a national

intermodal passenger transportation system,” that

“Amtrak is facing a financial crisis, with growing and

substantial debt obligations severely limiting its

ability to cover operating costs and jeopardizing its

long-term viability,” aad that “immediate action is

required to improve Amtrak’s financial condition if

Amtrak is to survive.” Amtrak Reform Act, Pub. L.

105-134, 111 Stat. 2577, § 2. Similarly, S. ReL. 105-85,

the Senate Committee Report underlying § 28103,8

describes an “urgent need” for immediate action to

improve Amtrak’s financial condition, which was at a

“crisis stage,” in order to eliminate Amtrak’s

dependency on federal operating assistance and

provide a series of statutory reforms aimed at reducing

Amtrak’s costs, increasing Amtrak’s efficiencies and

revenues, and improving Amtrak’s financial condition.

App. 141-144.

It is against this backdrop that Congress took a

series of legislative measures, one of which was to

enact the precise statutory language found in

§28103(b). See Amtrak Reform Act, Pub. L. 105-134,

111 Stat. 2577, § 161(b). The Senate Report (No. 105-

85) specifically explains that:

this bill clarifies that indemnification

agreements related to the provision of

rail passenger service entered into by

* £ Rep. 105-85, from the U.S. Senate Committee on

Commerce, Science and Transportation (Sept. 24, 1997), is

reprinted at App. 139-58.

14

Amtrak and other parties would be

enforceable.

App. 148 (emphasis added). The House Committee

Report (No. 105-251) is, if anything, even more

explicit:

The bill . . . affirms that indemnity

contracts between a passenger rail

operator and any other party are fully

enforceable without regard to any

other law or public policy.

App. 117 (emphasis added). According to the House

Committee Report, the “affirmation of the right of

owners of rights-of-way and passenger operators to

indemnify by contract” was “a crucial feature” of the

legislative package. App. 127.

The legislative history thus makes very clear

that Congress was explicitly concerned with the need

to override state laws that might otherwise nullify

indemnity agreements entered into by Amtrak or any

other rail passenger transportation provider. The

House Committee Report mentions by name the

district court’s decision in National R.R. Pass. Corp. v.

Consol. Rail Corp., 698 F. Supp. 951, which held that

an indemnification agreement between Amtrak and

freight railroad Conrail violated District of Columbia

public policy and was unenferceable because it

provided for contractual indemnification for a party’s

own willful, wanton, reckless or intentional conduct

and shifted the burden of paying punitive damages

15

away from the wrongdoer. App. 124, 129; see also

National R.R. Pass. Corp. v. Consol. Rail Corp., 698 F.

Supp. at 970-72.

The House Committee Report pointedly

observes that “[blecause of the court ruling in. . . [the

district court action], existing contractual indemnity

agreements do not afford a reliable aliocation of risk

among contracting parties.” App. 127. The Report

states emphatically that “the public interest is best

served through legislation providing that once rail

passenger transportation agreements are negotiated,

they will be enforced” and, as a result, “the Committee

is overruling [the district court] case in order to

restore the indemnitees’ confidence in_ the

enforceability of their indemnification agreements.”

App. 129.

The Senate Committee Report does not refer by

name to the decision in National R.R. Pass. Corp. v.

Consol. Rail Corp., 698 F. Supp. 951, but this Report is

equally clear that the purpose of enacting § 28103(b) is

to negate any possibility of a state law nullifying

indemnity agreements entered into by Amtrak or by

other rail passenger providers:

As long as there is the possibility that

state laws can nullify the

indemnification contracts [which

allocate the cost of liability among the

agreement parties], Amtrak and a

freight railroad could find themselves

litigating against each other or [sic]

concerning their obligations to injured

16

third parties. Amtrak believes that

such litigation inevitably would not

only adversely impact its business

relationship with its host freight

railroad, but it would also lead to

significantly higher outlays in

settlements and judgments _ to

plaintiffs.

App. 155-156; see also App. 148.

In sum, the wording of § 28103(b) broadly,

without qualification, authorizes Amtrak to enter into

indemnity agreements that allocate financial

responsibility for a claim against Amtrak. And the

legislative history strongly reinforces Congress’ clear

purpose and intent - these agreements are

enforceable notwithstanding any law or public policy

that one of the contracting parties may later seek to

assert to avoid its indemnity obligations.

In the face of the broadly worded statute and

the legislative history clearly debunking Petitioner’s

argument against preemption, O&G would have this

Court grant review in order to redraft § 28103(b) in

order to suit Petitioner’s purposes. Its arguments for

doing so are meritless.

First, Petitioner argues that indemnity

contracts covered by § 28103(b) should be limited to

contracts for the financial allocation of claims

concerning just passenger injuries. Petition at 28.

This, however, totally ignores the statute’s clear

wording. Congress specifically defined “claims”

17

covered by subsection (b) to include any claim against

Amtrak. 49 U.S.C. § 28103(b) and (e). Congress could

have easily defined “claims” covered by subsection (b)

to refer, more narrowly, to the passenger claims that

are the specific subjects of subsection (a) of § 28103,

which sets forth specific monetary and punitive

damage limitations on the liability of rail carriers,

inter alia, for “a claim for personal injury to a

passenger [or] death to a passenger... .” 49 U.S.C. §

28103(a). Plainly, however, Congress did not do so.

Petitioner is not asking the Court to adopt a

plausible interpretation of ambiguous language in

subsection (b). Petitioner is instead asking this Court

to draft additional limiting language that Congress

chose not to include. That, quite obviously, is a task

constitutionally delegated to Congress, not to this

Court.

Nor does the legislative history support

Petitioner's argument. Petitioner does not point to a

shred cf legislative history indicating that Congress

intended to provide for financial allocation of claims

only if they involved injuries to passengers. Nor would

that limitation make sense in the context of Congress’

stated purposes. The Amtrak Reform Act, as

previously noted, was enacted to address, inter alia,

Congress’ concern over Amtrak's financial “crisis”

(App. 118-123, 140, 141-144), and one of the specific

reasons for enacting § 28103(b) was to override state

laws that, by nullifying Amtrak’s'§ indemnity

agreements, would not only “adversely impact

[Amtrak’s] business relationship,” but would also “lead

to significantly higher outlays in settlements and

18

judgments to plaintiffs.” App. 148 (emphasis added).

This being so, there is absolutely no reason why

Congress would choose to limit § 28103(b) to claims

involving passengers as Congress was obviously aware

that Amtrak’s operations would require it to enter into

indemnity arrangements that covered substantial

personal injury claims by not just passengers, but non-

passengers as well. See, e.g., Alcorn v. Union Pac. R.

Co, 50 S.W.3d 226 (Mo. 2001) (Missouri Supreme

Court upholds $25 million compensatory damage

judgment for passenger in vehicle); National R.R.

Pass. Corp. v. Lexington Ins. Co., Civil No. 01-1815,

2003 WL 24045159, at *2 (D.C.C. May 20, 2003)

(district court explaining that Amtrak was required to

contractually indemnify Union Pacific for Alcorn’s

accident), affd, 365 F.3d 1104 (D.C.Cir. 2004);

Beausoleil v. National R.R. Pass. Corp., 145 F.Supp.2d

119 (D. Mass. 2001) (woman struck by Amtrak train

while crossing tracks at MBTA-owned, Amtrak-

operated station); Justice v. CSX Transp., 908 F.2d

119 (7% Cir. 1990) (action on behalf of deceased

husband whose truck entered onto CSXT’s tracks and

was struck by Amtrak’s train).

Section 28103(b) clearly does not contain any

language limiting indemnity contracts to passenger

claims. And to engraft such a _ limitation onto

subsection (b) would undermine the _ clear

Congressional purpose and intent in enacting this

provision.

Second, Petitioner argues that § 28103(b)

should be limited to contracts for the financial

allocation of claims entered into by Amtrak with other

19

railroads, not contractors like O&G. Petition at 28.

Once again, Petitioner asks the Court to ignore the

statute’s text. Subsection (b) broadly covers a//

contracts entered into by a “provider of rail passenger

transportation.” 49 U.S.C. §28103(b). Thus, once

again, Petitioner is asking this Court not to interpret

subsection (b), but to re-write it.

The legislative history undermines, rather than

supports, Petitioner’s contention. Congress, as noted,

was fundamentally concerned about the need to

alleviate Amtrak’s financial crisis. Congress thus had

every reason to provide broadly for enforcement of all

indemnification agreements entered into by Amtrak

(and other providers) relating to the provision of rail

passenger service. Moreover, that, according to the

legislative history, is what Congress intended to do.

In addressing the indemnity issue, the House

Committee Report states in the broadest possible

terms that the bill “affirms that indemnity contracts

between a passenger rail operator and any other party

are fully enforceable without regard to any other law

or public policy.” App. 117 (emphasis added). The

Senate Committee Report similarly states, in broad

terms, that the bill makes _— enforceable

“indemnification agreements related to the provision

of rail passenger service entered into by Amtrak and

other parties.” (App. 148) (emphasis added).

Congress, to be sure, was motivated by a district

court decision involving Amtrak and freight railroad

Conrail, and was aware that in much of the country

outside the Northeast Corridor Amtrak operates over

20

tracks owned by freight railroads pursuant to

operating agreements that include indemnity

arrangements. See App. 116, 123-24, 127, 129. Asa

result, the legislative history emphasizes the need to

make sure that indemnification agreements between

Amtrak and freight railroads would be enforceable

notwithstanding any state law or pclicy.

But Congress was well aware that “Amtrak is

staking the future of the national system on the

projected financial success of high-speed rail service in

the Northeast Corridor,” where Amtrak operates over

its own tracks. App. 143; see also App. 123, 143--144,

149.9 Congress thus had good reason to make sure

that subsection (b) of § 28103 was not limited to

indemnification agreements between a rail passenger

operator like Amtrak and freight railroads. Rather, it

made perfect sense to cover all indemnification

agreements between a rail passenger provider such as

Amtrak and “any other party.” App. 117; see a/so App.

148.

The Agreement allowed Petitioner to enter onto

Amtrak's property and foul its high-speed railroad

tracks in the Northeast Corridor. Amtrak gained

nothing from agreeing to let Petitioner onto its

property. Petitioner was not improving Amtrak's

property, nor was it enhancing Amtrak’s high-speed

rail service. On the contrary, there was a risk that

Petitioner's work would interfere with Amtrak’s rail

° See, generally, 49 U.S.C. §§ 24901-24909 (legislation

regarding Northeast Corridor Improvement Program); 49

U.S.C. §§ 26101-26105 (legislation regarding High-Speed

Rail Assistance).

21

passenger service operations. Amtrak nonetheless let

Petitioner enter onto its property because it knew that

its Agreement specifically protected Amtrak from any

and all lability or losses due to injuries or death

involving Petitioner’s on-site workers, irregardless of

Amtrak’s negligence or fault. The broadly-worded

language in § 28103(b) thus served precisely the

purpose Congress intended. It assures’ the

enforceability of Amtrak’s indemnification

arrangement with Petitioner, one which clearly relates

to Amtrak’s business of providing high-speed rail

passenger service in its Northeast Corridor.

Petitioner -- as well as Amucus Connecticut

Construction Industries Asscciation, a construction

industry trade organization of which Petitioner is a

member -- claims that the Second Circuit’s conflict

preemption determination intrudes improperly upon

police powers that should be the domain of the states.

That is not so.

In the first place, § 28103(b) does not broadly

infringe upon the authority of Connecticut or any

other state to void indemnity arrangements in

construction contracts. It does so only with respect to

those agreements entered into with a provider of rail

passenger transportation services. Moreover,

Congress’ authority under Commerce Clause to

preempt the states’ authority on the subject of

interstate rail passenger transportation is beyond

question. Indeed, it was this Congressional interest

that led to the creation of Amtrak in 1971 (see Rail

Passenger Service Act of 1970, Pub. L. 91-518); and

Congress has since made explicit legislative findings

22

that underscore the strong federal interest in

Amtrak’s ability to provide “modern, cost-efficient and

energy-efficient intercity rail passenger transportation

between crowded urban areas and in other areas of the

United States;” because of the importance of “[mJodern

and efficient commuter rail passenger transportation .

. . to the viability and well-being of major urban areas

and to the energy conservation and self-sufficiency

goals of the United States” 49 U.S.C. §24101(a)(1) and

(5). Section 28103(b) represents just one more integral

piece of legislation enacted by Congress intended to

advance the nurturing of efficient, cost-effective rail

passenger transportation service across the country.

In addition, although Amicus suggests that §

28103(b) creates safety risks by allowing a rail

passenger transportation provider to be indemnified

for its own negligence, the relevant legislative history

essentially repudiates this contention. The House

Committee Report -- in addressing the provisions

limiting the provider’s liability for passenger claims --

pointedly rejects the contention that its legislation

would adversely impact rail safety. App. 126. The

House Committee stresses that railroad safety is

specifically subject to regulation by the Federal

Railroad Administration and cites to numerous

Congressional measures enacted to enhance rail

safety. App. 126-127. The House Committee’s Report

concludes that “it is clear that adequate incentives

remain in place to ensure the continued safe operation

of the nation’s rail system.” App. 127.

Finally, there is no merit to Petitioner’s

complaint that the Second Circuit’s Opinion fails to

23

explicitly reference a presumption against preemption.

Petition at 34. This critique of the Opinion adds

nothing to O&G’s argument. The ultimate question is

whether, after “examining the federal statute as a

whole and identifying its purpose and intended

effects,” the “state statute presents a_ sufficient

obstacle to the full accomplishment of Congress’s

objectives under the federal [a]ct to find it preempted.”

Crosby, 530 U.S. at 373 and 374, n. 8. The Second

Circuit’s Opinion clearly reaches the right result based

on an appropriate conflict preemption analysis -- the

Connecticut statute presents a substantial obstacle to

49 U.S.C. § 28103(b), requiring the invocation of

preemption. See Crosby, 530 U.S. at 374, n. 8.

Petitioner’s position is not advanced by this

Court’s most recent opinion in Wyeth, -- S.Ct. -- 2009

WL 529172. In Wyeth, this Court found that the

petitioner drug company’s conflict preemption

argument was based on “an untenable interpretation

of congressional intent and an overbroad view of an

agency’s power to [preempt] state law. Jd, 2009 WL

529172, at *10. The legislative history, this Court

concluded, indicated that Congress did zot regard

state tort litigation as an obstacle to achieving its

purposes. Jd. This Court also stressed that the drug

company’s preemption argument had to rely upon

FDA comments in a preamble to a 2006 FDA

regulation that did not merit any deference from the

Court. /d., at *11.

Unhke in WyetA, the evidence of Congress’ clear

and manifest intent to preempt state law in this case

is strong. The broad statutory language of § 28103(b),

24

the overall statutory scheme of the Amtrak Reform

Act, and the underlying legislative history in this case

all point to the same result. Congress’ purpose and

objective was to authorize Amtrak and other rail

passenger providers to enter into indemnification

agreements that would be fully’ enforceable,

notwithstanding any contrary state law or public

policy. As a result, the Connecticut statute upon

which Petitioner relies presents a substantial “obstacle

to the full accomplishment of Congressional

objectives.” See Crosby, 530 U.S. at 374, n. 8.

In summary, Petitioner’s contention that 49

U.S.C. § 28103(b) does not preempt the Connecticut

statute ignores the broadly-worded text of this federal

statute and is antithetical to Congress’ clear purposes

and objectives. Petitioner’s argument, if adopted,

would cripple Amtrak’s efforts to fully protect itself

through indemnification agreements whenever

contractors require permission to enter Amtrak’s

mainline track in order to work on projects, such as

the rebuilding of Interstate 95. It would expose

Amtrak’s indemnification agreements to the vagaries

of the laws of every state within Amtrak’s Northeast

Corridor. Furthermore, as this dispute demonstrates,

it would lead to additional costly litigation with

Amtrak’s contractual indemnitors and the prospect of

substantially inflated outlays to third-party claimants.

Such an outcome is plainly at odds with Congress’

purpose and intent when it enacted § 28103(b) as part

of the Amtrak Reform Act. Accordingly, the Second

Circuit’s Opinion properly relied upon principles of

conflict preemption in concluding that the broad

25

language of 49 U.S.C. § 28103(b) preempts Conn. Gen.

Stat. § 52-572k.

CONCLUSION

For all of the foregoing reasons, the Petition

should be denied.

Respectfully submitted,

MARK S. LANDMAN

Counsel of Record

WILLIAM G. BALLAINE

MICHAEL A. JOSEPH

LANDMAN CORSI BALLAINE

& FORD P.C

120 BROADWAY

27TH FLOOR

NEW YORK, NY 10271-0079

TELEPHONE (212) 238-4800

Attorneys for Respondent National

Raiiroad Passenger Corporation