WASHINGTON – In an injury case from Southern Illinois, U.S. Solicitor General Elizabeth Prelogar urged the U.S. Supreme Court to overturn decisions of district and appellate judges in favor of Union Pacific Railroad.
The big case involves two little words, because engineer Bradley LeDure claims a locomotive was “in use” when he slipped and hit the deck.
Prelogar agreed with him on Feb. 7, in a brief she filed at the Court’s invitation.
She claimed a locomotive is in use when it is in a carrier’s employment and it is out of use when withdrawn from service for repair, storage, or retirement.
LeDure worked at Union Pacific’s yard in Salem.
He reported for work after 2 a.m. on Aug. 12, 2016, and relieved a crew that had brought a train from the north with three locomotives.
It had just arrived and it would leave for Dexter, Mo. in about an hour.
LeDure decided only one locomotive would need power, so he climbed on the first one and tagged it for operation.
He tagged the second for no operation.
He climbed aboard the third and slipped on the exterior walkway.
He got up, turned off the power, and tagged the locomotive.
He returned to the walkway and identified a slick substance.
Another worker cleaned the spot.
LeDure sued Union Pacific in 2017, under the Locomotive Inspection Act.
The Act originated in 1911, as the Boiler Inspection Act.
The Act made it unlawful for a carrier to use an engine propelled by steam unless the boiler and appurtenances were in proper condition and safe to operate.
The name changed in 1915, when Congress expanded coverage from the boiler to the entire locomotive.
Regulations under the Act require that floors shall be kept free from oil, water, waste or any obstruction that creates a hazard of slipping, tripping, or fire.
LeDure claimed inspection according to regulation would have prevented his fall.
Senior District Judge Phil Gilbert dismissed the suit with prejudice, concluding that the locomotive was not in use.
He found court decisions on the two words “all over the place.”
He relied on a Second Circuit case from 1950 about a locomotive in a roundhouse.
That court wrote, “To service an engine while it is out of use, to put it in readiness for use, is the antithesis of using it.”
Gilbert found the train was stationary on a back track and hadn’t been tagged.
“Perhaps more importantly, the engineers had not yet assembled the cars on the train for its next use in interstate commerce,” he wrote.
Seventh Circuit judges William Bauer and Michael Kanne affirmed Gilbert, along with current Supreme Court Justice Amy Barrett.
They found that reversing Gilbert would mean that a locomotive is not in use only when being repaired.
LeDure’s counsel Nelson Wolff of St. Louis sought Supreme Court review and the Justices certified the case in December.
Eight Justice Department lawyers, three from Federal Railroad Administration, and one from Department of Transportation worked on Prelogar’s brief.
“An Act designed to compel carriers to equip their locomotives safely is best read to apply to locomotives from the moment they are placed into a carrier’s employment or service,” Prelogar wrote.
She claimed many locomotive accidents including boiler explosions involve locomotives that are not hauling cars.
She claimed the Court held that a rail vehicle was in use in many cases where the factors of being stationary on a back track waiting for assembly were present.
“The locomotive on which petitioner fell was in use because it was being employed in the service of the railroad when the accident occurred,” she wrote.
“It is irrelevant that at the time of the petitioner’s fall the locomotive was serving the railroad’s purposes by undergoing preparations for the next movement in its journey rather than by pulling a train.”
She claimed a taxi company might say it is using 100 cars, meaning it has 100 cars in its active fleet.
“Or a team might say that it is using five starting pitchers even though only one is currently on the field,” she wrote.
Barrett has not participated in conferences or decisions in the case.
The Justices set argument March 28.