Argument preview: Preemption under the Locomotive Inspection Act

Shon Hopwood is a Gates Scholar at the University of Washington School of Law and a blogger at the CockleBur. He has written articles for the Harvard Civil Rights-Civil Liberties and Fordham Law Reviews, and he co-wrote his memoir, which Crown/Random House is publishing in 2012.

Tomorrow in Kurns v. Railroad Friction Products Corp., the Court will hear arguments on the extent to which the Locomotive Inspection Act preempts state-law tort claims relating to locomotive repairs.

Background

The Court is back to finish what it started last Term:  clarify the nebulous federal preemption doctrine case by painstaking case. By the time Kurns is argued, it will be the third preemption case heard this Term and at least the seventh in the last two.

This case arises out of the death of George Corson, who worked for nearly thirty years as a machinist repairing locomotives in a railroad maintenance facility. During that time, he was routinely exposed to asbestos dust, and in 2005 he was diagnosed with malignant mesothelioma, a disease for which the only known cause is exposure to asbestos. He died two years later.

Before his death, Mr. Corson and his wife filed suit in Pennsylvania state court raising several state-law tort claims against the manufacturers and distributors of the asbestos-containing locomotive products. The complaint contained several tort theories, including that the products were defective in design and inadequate in warnings regarding the dangers of asbestos.

The defendants removed the case to federal court, where they argued that the Locomotive Inspection Act (“LIA”) preempted all state-law tort claims. There are three distinct types of federal preemption: express, implied conflict, and implied field. Express preemption occurs when a federal law contains express language providing for the preemption of any conflicting state law. Implied conflict preemption occurs when it is impossible for a private party to comply with both state and federal requirements, or when state law conflicts with an obstacle to the purposes and objectives of Congress. Implied field preemption occurs when a state law intrudes upon a field that Congress has reserved for federal regulation.

This case involves implied field preemption with a sprinkling of conflict preemption. The Court has explained that to determine whether federal laws preempt an entire field, a court’s inquiry “into the scope of a statute’s pre-emptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case.” In addition, courts normally apply a presumption against field preemption unless Congress’s intent is clear and manifest.

The district court agreed with the defendants, and the Third Circuit affirmed. Invoking the Supreme Court’s holding in Napier v. Atlantic Coast Line Railroad Co. (1926) that the Boiler Inspection Act (the precursor to the LIA) occupied the field of locomotive regulation, the court of appeals concluded that “Congress intended to preempt all state laws, regulations, and causes of action which involve the design, the construction, and the material of every part of the locomotive and tender of all appurtenances.” Freida Corson, George’s widow, and Gloria Kurns, the executrix of his estate, then filed a petition for certiorari, which the Court granted on June 6, 2011.

Arguments

The primary argument against preemption made by Kurns and Corson rests on two propositions. The first is that the scope of the field for preemption mirrors the scope of regulation contained in the statute at issue. The second is that the LIA regulates only locomotives “in use” on a railroad line. In support of those propositions, they cite a host of circuit court cases that, they argue, uniformly held that the LIA is relegated to locomotives “in use” on railroad lines and does not govern injuries resulting from the servicing of locomotives at maintenance facilities. Kurns and Corson also emphasize that the Court has required a “clear and manifest” congressional intent to displace areas historically occupied by the states, such as the railroad regulations. Finally, they argue, the Third Circuit’s rule would lead to harsh results, because “a worker in a railroad maintenance facility injured by a defective locomotive or locomotive part would have no recourse against the manufacturer.”

Almost as a side note, Kurns and Corson contend that because the question whether conflict preemption would preclude their state-law tort claims was neither pressed or passed upon below, the Court should not reach it either.  But in any event, they continue, their claims would survive review on that ground as well .

The United States filed an amicus brief in support of Kurns and Corson.  Although the federal government takes the position that only claims related to locomotives “in use” are preempted by the LIA, it nevertheless argues that the LIA likely preempts some of their claims on a conflict preemption theory.

Respondents rest their case on Napier, although they argue that they could also prevail on the government’s conflict preemption theory. Starting the argument section with strong rhetoric, respondents emphasize that Kurns and Corson treated “the Court’s decision in Napier as little more than an afterthought—it is not even mentioned in the Argument section of their brief until page 36. But Napier’s construction of the LIA, applied consistently by federal courts and the overwhelming majority of state courts for more than 80 years, squarely controls the outcome in this case.”

Addressing the primary argument advanced by both petitioners and the government, respondents contend that the duty-of-care provision containing the “in use” requirement does not mark the boundary of the LIA’s regulatory reach. Rather, the LIA confers “categorical” authority to regulate the design and manufacture of locomotive equipment regardless of whether a locomotive “is on the tracks or in the roundhouse.” As a result, the LIA preempts state-law tort claims that only regulate locomotive design in the roundhouse.

As to petitioners’ policy argument, respondents argue that “the only claims foreclosed [by preemption] would be claims by independent contractors asserting off-line injuries, and most of those would be foreclosed anyway under the conflict preemption theory espoused by the government.” And, in any event, they continue, it does not matter if some plaintiffs are left without a remedy, as such a result is “a necessary consequence of field preemption.”

Respondents end their brief by agreeing with the government in part on the application of conflict preemption, although they disagree with the government’s contention that failure-to-warn claims do not interfere with the LIA’s uniformity purpose.