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Justice Breyer Cites ‘The Little Engine That Could’ During Oral Arguments in Case About an Injured Worker and Railroad Company Liability

Supreme Court Holds Investiture Ceremony For Associate Justice Amy Coney Barrett

The sun shines on the Supreme Court building in Washington D.C.

The U.S. Supreme Court heard oral arguments on Monday in a case about a railroad worker who suffered serious injuries after slipping on an oily passageway onboard a locomotive while it wasn’t moving and sued Union Pacific under an obscure federal law.

In the case stylized as LeDure v. Union Pacific Railroad Company, an eight-member bench of the nation’s high court will decide the scope of the Locomotive Inspection Act and what “use” or “allowed to be used” means for locomotives–the vehicles that pull the rest of the train cars–under federal law. Justice Amy Coney Barrett recused herself from the case as she adjudicated the matter before the U.S. Court of Appeals for the Seventh Circuit. Justice Clarence Thomas made his first appearance back after a recent health scare.

The law, passed in 1908 as the first piece of federal legislation covering steam-powered locomotives, generally requires railroads to perform inspections and implement safety measures. If an employee is hurt and a railroad does not comply with safety and inspection mandates, that employee can sue the railroad for damages. Under the statute, however, a worker can only sue when locomotives are deemed to be in “use” or “allowed to be used” on the railroad’s line.

The theory of liability advanced by the worker, former engineer Bradley LeDure, hinges upon the idea that a locomotive is in “use” or “allowed to be used,” according to his petition for a writ of certiorari “until they are removed from use by storing them at a location dedicated for maintenance and repair by service personnel.”

During oral argument, in response to questioning, attorney David Frederick said such use or potential use can also be expressed as when such a locomotive “still serves the dedicated purposes of the railroad until it is sent” somewhere where it is out of service.

In LeDure’s particular case, the locomotive had been parked in a rail yard in Salem, Illinois. The locomotive was not parked on the main tracks and was not linked with the rest of the train. Rather, it was on a side track near a repair shop. But, the worker argues, the locomotive was only scheduled for a brief layover before it was due to be sent out again some three hours later. Union Pacific, on the other hand, claims the train was actually parked for five hours.

Chief Justice John Roberts appeared largely skeptical of the worker’s claims and consistently gave the most pro-employer questions throughout Monday’s proceedings, at one point saying he wouldn’t say that his car parked in his driveway was in use.

Roberts followed up later on to ask about a locomotive “on a side track” scheduled to be used in 10 days and asked whether that would qualify as in use. Frederick replied that would qualify because “it is there to be deployed by the railroad on schedule.”

Thomas posed, and then repeatedly turned back to, a hypothetical about his “motor coach” pulling his car, by which he meant his motor home traveling with his car in tow across the country.

Frederick said the car would, in fact, be in use under such circumstances because “no one else can use your car,” which Thomas said he found an “odd” way of understanding things because “the point of the car is not to be hauled by the motor home.”

Later on, Assistant to the U.S. Solicitor General Colleen Sinzdak, though largely agreeing with the worker on the Biden administration’s behalf, conceded that she didn’t believe a car being towed was in use. During his rebuttal, Frederick returned to the motor home example and argued that it’s actually an easy call if you understand that the car, though being towed, is being used for the overall vacation.

Justice Samuel Alito seemed largely receptive to LeDure’s general argument but asked why there should be a difference between two different forms of stopped locomotives: (1) the “in use” locomotive about to be sent off again; and (2) a locomotive that is obviously not in use and in, say, a repair shop–if both are, as it turns out, dangerous.

Justice Sonia Sotomayor, though also generally sympathetic to the worker, suggested Frederick had attempted to evade that distinction and pressed the attorney to answer Alito’s question directly.

In response, LeDure’s attorney said the dangers are more likely to be known by repair workers and less likely to be known by a worker who steps on the stopped locomotive about to be sent out.

Arguing for the carrier, Union Pacific attorney Scott Ballenger argued that LeDure was trying to rewrite the statute.

“A locomotive being hauled dead is not in use,” the railroad attorney said at one point. “Obviously, Congress didn’t intend that. The [law] will not support petitioner’s and the government’s interpretation.”

Roberts pressed the railroad company attorney about a locomotive stopped for 45 minutes to take lunch and whether that would mean it is not in use. After some back-and-forth, Ballenger conceded a 45-minute break would mean the locomotive “is temporarily out of use.”

Justice Stephen Breyer then jumped in to bring up a book from his “childhood” called “The Little Engine That Could.” He asked Ballenger if the gaps during the titular character’s well-known “I think I can” thought processes while trying, but failing, to climb hills in the work of children’s fiction would or would not have put the locomotive in use–while musing that such pauses are “the same as a lunch break.”

The railroad company vehemently attorney disagreed, saying that the little engine was “applying torque to the wheels” during the time period when the anthropomorphic train tried to climb the hills.

Frederick later latched onto that verbiage, saying that Union Pacific was actually the one trying to rewrite the statute by creating a “torque to the wheels” test that simply doesn’t exist in any understanding ever before essayed regarding the “use” question under the LIA. The worker’s attorney also argued that Ballenger later contradicted that novel test by conceding, in response to a different question, that “imminent movement” would be enough to constitute use.

Justices Elena Kagan and Brett Kavanaugh both also appeared substantially more skeptical of the railroad company’s claims during oral argument–cabining their arguments in terms of safety issues.

Kavanaugh suggested Ballenger was advancing a discordant reading of precedent while noting “most of the accidents that occur with respect to locomotives are when the locomotives are stationary.”

“This statute is a preventive statute in its very essence,” Kagan said.

In response, Ballenger said the point of the precautions is to not violate the statute. That framing of duty under the law prompted aggressive pushback from Kagan who said “you can’t have a safe locomotive unless you’ve done a lot of things before it starts moving.”

The railroad attorney replied with an argument that essentially blamed LeDure for his injury, conceding Kagan’s point while insisting the worker’s job was to get the locomotive ready and check for defects.

Frederick also seized on that line of thought during his conclusion.

“Turns the statute completely on its head,” he said in direct response to that argument. “Because it’s not the carrier who determines whether the locomotive is being used–it’s the worker. That makes no sense. It’s the worker who is the one who got hurt.”

“Having a narrow constriction would completely gut the rules,” Frederick went on, noting that the exterior walkway where LeDure slipped would never be used on a locomotive that is in motion.

Elura Nanos contributed to this report.

[image via hip Somedevilla/Getty Images]

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