The place—Salem Illinois railway yard. The time—August 2016.
All around clumsy dipshit, Union Pacific railroad engineer Bradley LeDure was attempting to prepare some locomotives for an upcoming haul. There were three locomotives coupled together on a side track, typically where locomotives to be repaired are parked.
LeDure boarded the locomotives to prepare them for his trip. All three were turned on, but he felt only one of them need be, so he was going to turn off two of them, and just drag them along on the trip.
While walking on the outside of one of the engines, LeDure slipped and fell. And when I say slipped and fell, I don’t mean like, “Oopsie! That was clumsy of me.” This dumb motherfucker slipped and fell so hard he hurt his spine, shoulder, and head so bad he’s now permanently disabled.
Upon inspection, it was found that there was some oil on the locomotive’s walkway LeDure was walking on, which presumably was the reason he fell.
Union Pacific Train
So why does SCOTUS care about this prick with two left feet?
Under the Locomotive Inspection Act, a locomotive must meet certain safety conditions that would be found during an inspection, if the locomotive is deemed to be “in use” or “allowed to be used.”
Under the Federal Employers’ Liability Act, if there’s a violation of the LIA that leads to an injury, the employer will be liable for any and all damages the person incurs as a result of their shitty inspection service, or lack thereof.
Under the SAA however, that applies more to train cars, and only locomotives that are just being hauled around, and are maybe just used for braking, or electric power generation, but not used as a locomotive to pull the train. If they’re being used for pulling, then see the LIA above.
Now you know, if you’ve been reading my stories about SCOTUS before, they fucking love some nerdy definition shit. For SCOTUS, the question here is, “What the fuck does ‘in use’ mean” within the LIA.”
When LeDure filed his case, the 7th circuit decided that the trains, being on side tracks and not actually moving or anything, were not “in use.” So they told LeDure to go fuck himself. Which is ironic, as he’s disabled and probably can’t do that now.
LeDure was like, “Hey you assholes, that fucking locomotive was on, and was only paused for like an hour before it was to depart again, so it was clearly in use.”
But Union Pacific was like, “Listen, you clumsy fuck. We have the fucking receipts. That engine had been sitting for five fucking hours. So it wasn’t in fucking use.
But LeDure was like, “I could have fucking used it. It was there, turned on, and available. So it was “allowed to be used.” That’s what the statute says. As such, I’m covered.
LeDure’s team points out in their briefs that nearly half the injuries they sought to protect against with this law occur on stationary trains. So clearly, the statute was intended to protect in these instances.
Union Pacific Locomotive Inspecting Pit
Union Pacific argues, “If it was scheduled to be inspected, which is LeDure’s job, then that means it hadn’t been inspected yet, and therefore was inherently risky compared to one that had been inspected. How the fuck are we supposed to guarantee the safety of a locomotive we haven’t fucking inspected yet?”
“At some point, it has to deemed not available while it’s about to be serviced. This clumsy fucking retard was clearly not paying attention, slipped and fell, and doesn’t want to take responsibility for it. Fuck this guy, and his argument.”
Union Pacific agrees that it doesn’t have to be moving to be in use—it could be stopped for something on the tracks, or stopped because it’s all connected and about to depart. But that doesn’t mean it’s always in use if it’s not in the actual garage being worked on. If it’s off to the side, turned on, and waiting to be inspected, what fucking idiot thinks it’s in use? It doesn’t even have any cars attached to it to pull!”
To hammer their point home, they quoted the late Justice Antonin Scalia, when arguing a 1993 case about guns, he said, “When someone asks, ‘Do you use a cane?’, he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane.”
Justice Antonin Scalia 1960-2016
Their argument being, a cane is in use if it’s doing its job, or about to do its job. A train’s job is to pull shit. Not sit there and wait to be serviced. Therefore, not in fucking use. Mic drop, bitches!
They also argued about the “allowed to be used” language which LeDure cited as supporting his argument. They pointed out that the law’s framers were referring to a third party like a lumber company who often uses trains, but aren’t necessarily the railway company. They are “allowed to use” the train, but don’t own it. It was never about whether some asshole like LeDure could just fucking take it.
Union Pacific also argue that if they were to take LeDure’s approach, no locomotive would ever be able to be parked on a side track waiting to be serviced, because in his idiot mind, that’s “in use.”
So if SCOTUS sides with those morons, they’ll have to make sure that all locomotives are immediately transported to a garage for servicing as soon as they’re meant to be out of use. They’ll have to build gargantuan fucking garages because, in case you haven’t noticed, locomotives are fucking huge, because apparently leaving it on tracks outside the garage means it’s still in use.
They were like, “Do you have any idea how much that shit would cost?”
Anyway, enough back story, on to the arguments…
Counsel David C. Frederick opened for the petitioner, Clumsy McClumserson. He pointed out a shitload of old cases from the early 1900s where SCOTUS ruled about trains being in use. In one, people were dining on a car, but it wasn’t connected to shit. A rail worker hurt themselves trying to connect cars to it.
Counsel David Frederick
Justice Roberts immediately called him on this nonsense saying, “Dude, a locomotive, which pulls the cars, has a very different use than a fucking dining car, which is just a place for people to eat, that happens to often get pulled around, but not necessarily. Surely you understand they’re not the same fucking thing.”
“Like, if people are eating on a dining car that wasn’t going anywhere, it’s still being used. But a locomotive just sitting there not pulling anything, isn’t fucking being used.”
Counsel, unimpressed with Roberts’ argument was like, “The SAA lumps locomotives and train cars all together in one big group of ‘rail vehicles.’ So since they’re all lumped together, they all fall under the same rules. As such, with all due respect, I invite you to swing on my nuts, Justice Roberts.”
Justice Roberts did not, in fact, swing on his nuts. He threw a counterpunch.
He told him, “I appreciate your stupid fucking argument, but the LIA deals with locomotives being used to locomote, and only a fucking idiot would say it’s in use while it’s just sitting off to the side. Is your fucking car in use sitting out in the driveway while you’re inside jerking off?” We’re here because your claims are under the LIA, not the SAA. You’re just using that shit to try to help your shitty argument!
Justice Sotomayor, showing a total lack of understanding about trains, threw counsel Frederick a bone when she asked if it was odd to treat a locomotive and a railcar differently, which he obviously agreed with. He needed them to be treated the same.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
Counsel, in response, then argued that it was Clumsy McClumserson’s job to check those locomotives before heading out. So how the fuck does it make sense that he’s not protected from injuries that occur while on that fucking locomotive?
Justice Kavanaugh chimed in, presumably to draw a line, asking about what if the locomotive were on a side track for several days. Is it supposed to be inspected every day for such hazards?
Counsel Frederick was undeterred by this line of questioning, and hammered home the idea that if a locomotive is available to be used, it’s “in use.” So yes, in that scenario, the locomotive should be inspected and made sure it’s safe for engineers to board it and do their jobs.
Justice Thomas, humble-bragging about his motorhome, asked counsel Frederick if his car is “in use” when he’s dragging that fucker behind his motorhome?
Counsel Frederick was like, “you bet your ass it is! No one else can use it. The lights are in use, the brakes are in use. It’s in fucking use.”
*Side note: Cars being towed like this, do not have their brakes in use. It’s just the lights.
But justice Thomas being quite the skeptic was like, “The purpose of a car isn’t to be dragged around everywhere. We’re hauling it so we can use it later. So I don’t see how it’s in use now. It’s not serving any purpose now.
Justice Thomas then asked, what if some fuckhead engineer tagged the locomotive to be repaired, which some would argue is taking it out of use. Is it still in use?
Associate Justice Clarence Thomas
Counsel Frederick, seeking to win this case, needs the broadest fucking definition of ‘in use’ he can possible come up with, so he’s like, “Fuck yeah, man! It’s still being used to serve the purpose of the railroad, and people who might climb all over that mother fucker in your scenario, are doing work for the railroad that utilizes that locomotive. Therefore, it’s in fucking use.”
I’ll give him this, pretty fucking creative argument.
Justice Thomas, not done with this fucker yet, then asked, “In the LIA, it uses the term ‘safe to operate.’ So this whole provision seems to revolve around operation of the locomotive. Not when it’s sitting there waiting to be maintained.”
But counsel Frederick reminded justice Thomas that in his briefs, he points out that nearly half the railway injuries occur on stationary trains. So clearly, the law is intended to help these people. My client isn’t just some unlucky clumsy fuck. This is the norm.
But justice Thomas, was having none of his bullshit. He retorted, “Use implies the train is doing some sort of work. So what fucking work is it doing for Union Pacific, if it’s just fucking sitting there?”
Counsel Frederick, using the old “answer the question you wanted them to ask, not the question they actually asked” tactic, responded again about the ways it can be serviced, and then taken out of use.
Justice Thomas was like, “if it’s in maintenance, or on its way to be worked on, it’s in the same condition—it’s fucked up. So how do you differentiate?”
Counsel Frederick responded that rail workers have to transport it to be worked on, so they have a right to a safe work environment. Only the repair people should die, if someone has to. They’re fucking worthless.
Justice Alito, and Sotomayor after, were curious why counsel Frederick thinks somehow the law protects an engineer walking around on a train while it’s “in use” versus a technician taking the train to be serviced, then. If the purpose of the law is to protect railway workers, they’re all fucking railway workers, aren’t they?
He responded that the idiots he’s defending are walking around with the assumption that everything is safe and OK. But the others have an assumption there is a problem, which is why they’re about to work on it.
Next up, for the United States as an amicus in support of Clumsy McClumserson, counsel Colleen E. Roh Sinzdak.
She opened by pointing out that these locomotives are 400,000 lbs, with 5,000 of diesel in them. They’re fucking dangerous and complex machines. They haul freight, but also they can be a simple power supply, a mule to move cars around the yard, or just a standby locomotive, ready to rescue a train that takes a shit out in the field.
Colleen E. Roh Sinzdak
Any of these purposes means it’s in use.
Until these assholes put it into the repair shop, storage, or retirement, it’s in use.
Justice Roberts asked, “what if Union Pacific sets this train aside, making it a little restaurant or something, but they know they could deploy it to haul shit again if needed? Is that “in use?”
Counsel Sinzdak responded that this would be “in storage.”
Justice Roberts asked, “Why? It falls under your argument, it’s one of those locomotives that’s there, ready to rescue some other train that breaks down, isn’t it?”
She was like, “No dawg. They’d have to do a lot of shit to get it up to spec to haul shit again.”
Justice Breyer, in a rare bit of defiance absolutely demolished counsel Sindzak. I’m just going to copy this exchange here.
Stephen G. Breyer
Well, suppose it hasn’t gotten into the service yet?
Colleen E. Roh Sinzdak
Then it’s not in use.
Stephen G. Breyer
Oh, not in use. Okay.
Colleen E. Roh Sinzdak
It’s once the locomotive is placed into service.
Stephen G. Breyer
Associate Justice Stephen Breyer
So we have a yard and the company puts all the locomotives in the yard, that they make one every three months, and there are now 15 in that yard, and they’re all ready to go, and somebody calls from the train station and says can we take any of those? Sure, take them.
Take them whenever you want. And occasionally they do.
Okay? In use or not?
Colleen E. Roh Sinzdak
So, once the locomotive is placed into service, then, yes, it is…
Stephen G. Breyer
What does that mean, “placed into service”?
Colleen E. Roh Sinzdak
Well, usually, it means, for example…
Stephen G. Breyer
It’s there, sitting in the yard.
Colleen E. Roh Sinzdak
Well, it needs to be filled with fuel.
I mean, the 5,000 gallons of fuel is a pretty…
Stephen G. Breyer
Oh, it has to be filled with fuel.
So it’s not used—in other words, a locomotive is not used when it’s sitting somewhere and doesn’t have fuel in it?
Colleen E. Roh Sinzdak
That is correct.
So the FRA generally focuses…
Stephen G. Breyer
Oh, you—what happened to the thing about you used it until you withdraw it from service.
It’s not been withdrawn from service.
Colleen E. Roh Sinzdak
The FRA considers that a locomotive is withdrawn from service once its fluids have been drained and its battery has been detached.
So, for example…
Stephen G. Breyer
Oh, it hasn’t detached the battery, but what they did was they withdrew—they didn’t have fuel in it because we don’t need fuel until next month because there’s a big snowstorm and that won’t be cleared up until next month.
Colleen E. Roh Sinzdak
Right.
So the FRA’s basic…
Stephen G. Breyer
So what my point is, is you want to say that is in use.
And what you’re doing is not following the words in your brief.
You’re following what is your common-sense view of sort of what’s in use or not.
And that’s why I say, if it’s in your brief, hey, you don’t say anything in the brief of not having yet gone into service, I don’t think.
You talk about withdrawn from service. And here you have six words. That’s why I started thinking we’re not going to get anywhere or very far by substituting the words from your brief or any of these briefs for the word “use.” Now you don’t agree with that, so explain.
Colleen E. Roh Sinzdak
I do not agree with that.
While a locomotive is being put to a carrier’s purposes, then it is in use.
I would say that as we note in our brief, you can withdraw a locomotive from service and then it’s no longer in use.
So, obviously, if the locomotive has never been put into service in the first place, then it isn’t in use.
We do think that “use” and “service” are synonymous in this statute. Now we also think there is a very clear line here, and it’s once a carrier has placed the locomotive into use, have they done something to affirmatively withdraw it from service for storage or repair? And the key things that they might do are moving it to a controlled environment like a repair shop, where you just don’t have the same risks of an exposed railroad yard, where you have trains moving everywhere, you have people going everywhere. So you’ve put it in a controlled environment where the only people interacting with it are people who are expecting to be dealing with a defective locomotive.
Or you’ve done something to make sure that there is no way that somebody is going—an employee is just going to hop on that train and turn it on or move it. So, again, you can put it—you can and—and many railroads do put locomotives in storage by detaching the battery and draining the fluids.
And that way, what you don’t have is the risk that an employee is going to get on and move this, again, 400…
Stephen G. Breyer
Now what you’re suggesting is certainly a possible approach. There’s a common law approach.
If we’re Lord Mansfield or Coke or somebody, we might take that.
And you’re suggesting, if that’s what we’re trying to do, we ought to look at the purposes of this statute and decide whether the kinds of risks that are at issue in the case are the kinds of risks the statute is trying to prevent.
Colleen E. Roh Sinzdak
That is one approach, although what I would say is that you could apply the canon of in pari materia and say that we have interpreted the SAA in exactly this way, that the Locomotive Inspection Act was enacted at the same time that Congress…
Stephen G. Breyer
Yeah, but they’re going to say, as you know, because you’ve written this already, so I do interrupt, that the first statute is done for all cars, and it’s done for all cars because people wander around in those cars, particularly employees. But locomotives have special risks, particularly with fuel and other things, and so the statute is meant to go beyond that first statute.
But how far beyond? And now we have the issue in the case.
Colleen E. Roh Sinzdak
I’m actually not sure that we are arguing that the “in use” definition doesn’t go any further.
Stephen G. Breyer
You’re not, but they are.
Colleen E. Roh Sinzdak
Okay.
Well, so, for the FRA, “use” means the same thing in the SAA and in the LIA, and it should be interpreted in that way because—for basic reasons of clarity in the law. When you have two statutes enacted at approximately the same time covering the same topic, it sort of stresses reality to think that a regulated party would read those two laws and think that “use” means one thing as applied to a locomotive in one law and something entirely different is applied to a locomotive in a different law.
So that just—that doesn’t work sort of as a matter of common sense. And it certainly doesn’t work if you do want to look at purpose—I mean you want to look at legislative history, and you see that Congress is expressly borrowing from one statute and putting it in another.
Justice Roberts, also apparently not a fan of counsel Sindzak, blasted her on this last argument.
John G. Roberts, Jr.
Chief Justice John Roberts
No, “use” means the same thing.
It’s just that when you apply it, the use you put a locomotive to is to drive and pull cars.
The use you put a railcar to is to have stuff in it and be attached to a locomotive. It’s the same word.
It just looks to, I guess, the primary purpose of the object that’s involved.
That doesn’t mean you’re using the word differently.
She went on to say, that congress incentivized the railroads to take “defective trains off the line.” Her argument being, that they wanted this to prevent risk of injury from defective trains being problematic.
But Justice Alito was like, “Where the fuck did congress say that?”
She was like, “the fucking law talks about making sure trains are safe, and any issues fixed. So clearly, they were creating a framework to say, “If there’s a problem, it comes out of service to be fixed. If it’s not fucked up, it’s in service.”
She went on to argue that “use” has many connotations. For instance, people would say they “use” a gun to protect their home, but it doesn’t mean they ever pick it up and use it to shoot someone.
*I wish she’d leave the gun arguments to the professionals, because we’d say we “have” a gun for home protection, and we only use it to shoot some motherfucker breaking into our home. Sorry, she lost me on this argument.
She then went on to the argument that again, half the incidents are on stationary trains, and these laws were meant to protect such people. She even shared an anecdote that you used to be able to tell how long someone worked on the railroad by seeing how many fingers they have left. No shit. That was her argument.
She also mentioned they even had ads for prosthetics in publications for railway workers because conditions were so unsafe back in the day.
All this to say that the point of the laws, is to protect workers like Clumsy McClumserson.
She argued that while they accept it was off to the side, and not immediately intended to do any work, it was ready to be used when whomever decided to use it. As such, it needed to be inspected and deemed safe, which it wasn’t.
Multiple times, counsel Sinzdak pointed out that for the train to be not in use for purposes of maintenance, storage, and such, it would have the battery disconnected and the fluids drained. Her argument being that barring that, the train is in use.
Justice Sotomayor, looking to draw a fucking line anywhere, asked if this is where they should draw the line? If the battery is disconnected and fluids are drained, then it’s not “in use?”
Counsel Sinzdak, not wanting to limit herself, was like, “yeah, that’s one way, but there are others. Like it could be parked in a service garage over a maintenance pit.”
She again, hammered home the idea that a train, sitting off to the side, ready to go, has to be deemed in use, because non-maintenance personal have every right and reason to go use them if needed, and therefore, they should be assumed safe.
Wrapping things up for Union Pacific, counsel J. Scott Ballenger was up to bat.
J. Scott Ballenger
He wasted no time in bashing counsel Sinzdak’s argument. He was like, “where the fuck do you see anything about disconnected batteries and drained fluids in this fucking stature. Don’t bother, I’ll answer it myself. If fucking isn’t.”
She’s trying to rewrite this law to what she thinks it should mean, not what it fucking actually says. This is bullshit, and you know it.
Union Pacific has no rule that to take a train out of service, you disconnect the battery and drain the fluids. You could, but that certainly isn’t the only way.
His argument is that the law makes it clear, that as soon as there’s an issue, the train is not to be “used” anymore, and is no longer in service until the issue is fixed.
If the oppositions idiotic statements are true, then they can never comply with that clearly written rule, because they don’t have a way of getting the train from “in use” to “in service.” They can’t just magically wish it from the tracks into a repair shop.
He pointed out that there are in fact regulations that govern the transport of locomotives, and that congress understood that a locomotive being transported to get serviced is not in use. If it’s known defective, then it can no longer be deemed safe until the defect is fixed, and the law has to provide for a way to transport it while defective.
He also pointed out, under questioning from Breyer who’d just invoked the Little Train that Could, the train is also in use, when it’s applying tractive power to the track. Meaning, it’s either moving on the track, or attempting to move by applying power to the wheels. So even though the little train that could is only thinking he can, he’s still applying power, and therefore in use, even if he’s currently not moving because he doesn’t have enough power.
He points out that in the law, they say a dead locomotive, can be idling. Sometimes, trains automatically turn themselves on just to charge their batteries. This doesn’t make it in use.
Justice Sotomayor asked about a locomotive that is being dragged with a train, but isn’t powering the train itself. Is it in use?
Counsel pointed out that under this instance, it is covered under the Safety Appliance Act (SAA), as it’s acting like a railroad car, but it is not then in use under the LIA, because that’s for locomotives, and it’s not locomoting.
Justice Kagan, seemingly siding with Clumsy McClumserson, argued that the statute supported the train as in use, when it’s ready to be used, because the point of the legislation is to get it ready for whatever the train’s operator’s decided to do with it, before it’s put into use.
But counsel Ballenger, understanding Sotomayor knows fuck-all about trains pointed out that Union Pacific’s manuals for engineers like Clumsy McClumserson are supposed to do inspections to make sure the train is safe before operation, which is what he was doing. Within that framework, it must be, that the fucking train might be unsafe, which is why he needs to inspect it.
Justice Thomas chimed in and asked if there were any indication that this locomotive was cleared for use? Like was it available to LeDure?
Counsel Ballenger, with a bit of evidence I’m surprised I didn’t hear earlier pointed out that Union Pacific’s guides forbid using any that are overdue for inspection. That all parties agree it was overdue for inspection, therefore to answer the question, no! It wasn’t available to be used, until it was inspected. That’s our whole fucking point!
Justice Thomas, also looking to draw some lines, asked if there’s an instance where a stationary train would be deemed in use.
Ballenger responded that if it were stopped at a red light, or waiting for a switch, it’s still in use. But as soon as it’s put on a side track, and the true goes home for the day, it’s not in use anymore.
In a split decision where Justice Barrett recused herself as she was on the 7th circuit when they previously decided it, the 7th circuit’s ruling holds. Since there’s no majority decision, it simply stands as if it didn’t happen, and therefore the 7th circuit’s ruling that the locomotive wasn’t “in use” is the ruling. I’d love to share more info here, but they literally just issued like a one-sentence ruling saying they were tied, and as such, there is no opinion.
This means that the questions they faced are still there, and there will need to be a new case asking the same question, they will be asked to decide, if that question is to be answered. The 7th circuit’s decision holds, but that doesn’t mean it becomes precedent, like it would if the majority had voted to hold their opinion.
log·i·cal: capable of reasoning or of using reason in an orderly cogent fashion lib·er·tar·i·an: an advocate of the doctrine of free will; a person who upholds the principles of individual liberty especially of thought and action
The Logical Libertarian™ 