BILLIE HAMMOND, PETITIONER V. TERMINAL RAILROAD ASSOCIATION OF ST.
LOUIS
   No. 88-399
   In the Supreme Court of the United States
   October Term, 1988
   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Seventh Circuit
   Brief for the United States as Amicus Curiae
            TABLE OF CONTENTS
   QUESTIONS PRESENTED
   Introduction
   Statement
   Discussion
   Conclusion
                          QUESTIONS PRESENTED
   1. Whether the Federal Employers' Liability Act provides a railroad
employee with a cause of action for a purely emotional injury.
   2. Whether the Railway Labor Act preempts a common law cause of
action for purely emotional injury.
                             INTRODUCTION
   This brief is submitted in response to the Court's order inviting
the Solicitor General to express the views of the United States.
                               STATEMENT
   Petitioner, a railroad switchman, seeks recovery from his employer
under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51 et
seq., and the common law for emotional injuries that he allegedly
sustained in the course of his employment.  The court of appeals
affirmed a district court judgment holding that the Railway Labor Act
(RLA), 45 U.S.C. 151 et seq., provides the sole remedy for
petitioner's alleged injury.
   1. a. Congress enacted the FELA to provide a federal remedy for
railroad workers employed in interstate commerce who suffer personal
injuries as a result of the negligence of their employers or their
fellow employees.  See generally Atchison, T. & S.F.R.R. v. Buell, 480
U.S. 557, 561-562 (1987).  Section 1 provides:
         Every common carrier by railroad * * * shall be liable in
      damages to any person suffering injury while he is employed by
      such carrier in (interstate) commerce * * * resulting in whole
      or in part from the negligence of any of the officers, agents,
      or employees of such carrier, or by reason of any defect or
      insufficiency, due to its negligence, in its cars, engines,
      appliances, machinery, track, roadbed, works, boats, wharves, or
      other equipment.
   45 U.S.C. 51.  A plaintiff may file his FELA suit in either federal
or state court.  45 U.S.C. 56.  If a plaintiff elects to file in state
court, the defendant cannot remove the suit to a federal forum.  28
U.S.C. 1445(a).  /1/
   "The coverage of the (FELA) is defined in broad language, which has
been construed even more broadly." Buell, 480 U.S. at 561-562
(footnotes omitted).  The FELA eliminates a number of traditional tort
liability defenses (such as the common law's "fellow servant" rule)
and expressly nullifies any attempt by a carrier, through contractual
agreement or otherwise, to deprive its employees of their statutory
remedy.  45 U.S.C. 55.  This Court has held that causation may be
established by proofs showing that "employer negligence played any
part, even the slightest, in producing the injury or death for which
damages are sought" (Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506
(1957)), and it has construed the FELA's remedy to reach some kinds of
intentional torts (Jamison v. Encarnacion, 281 U.S. 635, 641 (1930)).
See Buell, 480 U.S. at 562 n.8.  This Court has also held that the
FELA remedy generally supersedes state laws that otherwise would
determine an interstate carrier's liability for an employee's
workplace injury.  See Erie R.R. v. Winfield, 244 U.S. 170 (1917);
New York Cent. R.R. v. Winfield, 244 U.S. 147 (1917).
   b. Congress enacted the RLA to provide a collective bargaining and
arbitration mechanism for avoiding and resolving disputes between
management and labor that may lead to interruption of interstate
commerce.  See 45 U.S.C. 151a.  The Act imposes a duty on "all
carriers, their officers, agents, and employees to exert every
reasonable effort to make and maintain agreements concerning rates of
pay, rules, and working conditions, and to settle all disputes,
whether arising out of the application of such agreements or
otherwise" (45 U.S.C. 152 First).  The Act provides distinct
procedures for resolving so-called "major" and "minor" disputes.
   Major disputes involve "the formation of collective agreements or
efforts to secure them." See Elgin, J. & E.R.R. v. Burley, 325 U.S.
711, 723 (1945), aff'd on reh'g, 327 U.S. 661 (1946).  When a major
dispute occurs, the parties must preserve "rates of pay, rules, (and)
working conditions" (45 U.S.C. 156) while they engage in a lengthy
process of negotiation, mediation, and possibly review by a
Presidential Emergency Board.  See Detriot & T.S.L. R.R. v. United
Transp. Union, 396 U.S. 142 (1969).  /2/ Minor disputes, by contrast,
generally involve "the meaning or proper application" of a particular
collective bargaining agreement.  See Elgin, 325 U.S. at 723.  Unlike
a major dispute, if a minor dispute is not settled through initial
discussions, it may be "referred by petition of the parties or by
either party" to one of a number of grievance "adjustment boards" for
mandatory arbitration.  45 U.S.C. 153 First (i), Second.  /3/
   c. This Court addressed the interrelationship of the FELA and the
RLA in Atchison, T. & S.F.R.R. v. Buell, supra.  In that case, a
railroad carman sued his employer under the FELA, alleging that the
railroad's failure to provide him with a safe place to work had caused
him severe emotional injury.  See 480 U.S. at 559-560.  The railroad
responded that the RLA's "minor" dispute mechanism, which requires
binding arbitration, provided the carman with an exclusive remedy (id.
at 560).  The Court rejected the railroad's argument, stating (id. at
564):
         The fact that an injury otherwise compensable under the FELA
      was caused by conduct that may have been subject to arbitration
      under the RLA does not deprive an employee of his opportunity to
      bring an FELA action for damages.
   The Court added (id. at 567):  "Although we do not decide today
whether purely emotional injuries are cognizable under the FELA, we
stress that it is the FELA that controls that inquiry, not the RLA."
   2. a. Petitioner filed this action against respondent on December
27, 1985, in the Illinois Circuit Court for the Third Judicial
District (Madison County).  His complaint, /4/ which stated that
petitioner's and respondent's "rights and liabilities are governed by
a certain Act of Congress known as the Federal Employers Liability
Act" (Add., infra, 2a), alleged that respondent had filed
"inappropriate" and "unwarranted" disciplinary charges against
petitioner "for the purpose of causing harassment and emotional
stress," which resulted in petitioner's hospitalization and inability
to work (ibid.).  See Pet. App. A1, A8.
   Respondent removed petitioner's action to the United States
District Court for the Southern District of Illinois and moved for
dismissal, contending that petitioner's allegations constituted an RLA
minor dispute that was subject to mandatory arbitration.  Petitioner
requested the federal district court to remand the action to the state
forum, and he filed an amended complaint in federal court that set
forth his FELA claim with greater particularity and that added a state
law claim (see Add., infra, 4a-10a).  Shortly before this Court issued
its decision in Buell, the federal district court denied petitioner's
motion to remand and granted respondent's motion to dismiss.  Pet.
App. A8-A11.  The court concluded, on the basis of the allegations
contained in the original complaint, that the petitioner's FELA claim
was "inextricably intertwined" with the RLA bargaining process, that
the RLA "therefore preempt(ed)" petitioner's FELA claim, and that
removal accordingly was proper (Pet. App. A10-A11).  The court further
concluded that petitioner's claim raised a minor dispute subject to
mandatory arbitration (id. at A11).  See id. at A1-A2.
   b. The court of appeals affirmed the district court's dismissal.
Pet. App. A1-A6.  The appellate court recognized that "the anterior
question is whether the suit was properly removed" (id. at A2).  It
observed that 28 U.S.C. 1445(a) prohibits removal of claims "arising
under" the FELA (see note 1, supra) and that there is "no way around
the stark imperative of section 1445(a) unless it is apparent from the
pleadings that the suit arises under the (RLA) rather than the FELA,
so that in effect the complaint is mislabeled" (id. at A3).  The court
concluded that petitioner's state court complaint was, in fact,
mislabeled (id. at A4).  In the court of appeals' view (ibid.):
         That pleading complained only about the railway's having
      filed allegedly unmeritorious disciplinary charges;  it was a
      pure breach of contract claim, like a claim for having been
      fired without just cause;  and the contract is the collective
      bargaining agreement.
   The court of appeals accordingly held that "the district court
could not be faulted for denying the motion to remand the case to
state court" (ibid.).
   The court of appeals then addressed the district court's dismissal
of the action.  It acknowledged that Buell undermined the district
court's conclusion that the RLA preempts an otherwise valid FELA
claim, but it concluded that petitioner's action nevertheless was
subject to dismissal (Pet. App. A2-A6).  In the court of appeals'
words (id. at A2):
         A suit that states a claim under the FELA * * * cannot be
      thrown out on the ground that it is really a minor dispute under
      the RLA.  It can, of course, be thrown out on the ground that it
      does not state a claim under the FELA, and in Lancaster v.
      Norfolk & W. R(.R.), 773 F.2d 807, 813 (7th Cir. 1985), we held
      that "the FELA does not create a cause of action for tortious
      harms brought about by acts that lack any physical contact or
      threat of physical contact."
   The court concluded that even "(t)he amended complaint, filed in
the district court after the denial of the motion to remand, stated no
claim under the FELA as interpreted in Lancaster" (id. at A4).  The
amended complaint "was not frivolous, but it was clearly barred by
Lancaster and therefore properly dismissed" (id. at A6).  /5/
                              DISCUSSION
   Petitioner contends that this case provides an appropriate
opportunity for the Court to consider:  (1) whether the FELA provides
a railroad employee with a cause of action for a purely emotional
injury (Pet. 6-11);  and (2) whether the RLA preempts common law
remedies for emotional injury (Pet. 11-16).  The first question, which
this Court left unresolved in Atchison, T. & S.F.R.R. v. Buell, supra,
may ultimately warrant this Court's review.  We nevertheless submit
that this petition for a writ of certiorari should be denied.  In our
view, the court of appeals erred in upholding the removal of
petitioner's action from a state to a federal forum.  That procedural
misstep permitted the court to reach the merits of petitioner's
claims, which it resolved summarily based on its pre-Buell precedent.
As a result of this series of events, the record here is scant and --
as was the case in Buell (480 U.S. at 568-571) -- is not sufficiently
developed to permit careful analysis of the question.
   1. The court of appeals recognized that Section 1445(a) prohibits
removal of actions "arising under" the FELA.  See Pet. App. A3-A4.
The court nevertheless found removal appropriate here on the theory
that, although petitioner attempted to invoke the FELA, his original
pleading "was a pure breach of contract claim" (id. at A4).  We
disagree with that characterization of petitioner's complaint.
   As a general rule, "the party who brings a suit is master to decide
what law he will rely upon * * *." The Fair v. Kohler Die & Specialty
Co., 228 U.S. 22, 25 (1913).  The allegations contained in his
complaint "determine whether he will bring a 'suit arising under'"
(ibid.) a particular federal law.  There can be no doubt in the
instant case that petitioner's state court action was intended to
invoke the FELA's remedial scheme.  His original complaint
unambiguously stated that the employer's and employee's "mutual and
respective rights and liabilities are governed by a certain Act of
Congress known as the Federal Employers Liability Act" (Add., infra,
2a).
   While it undoubtedly is true that a claim "does not arise under the
FELA merely because the plaintiff names that statute in his complaint"
(Pet. App. A3), petitioner here did more than simply cite the FELA.
Petitioner's complaint stated a cause of action that -- while tersely
described -- bore the characteristics of an FELA claim rather than a
contractual dispute.  Petitioner alleged that respondent intentionally
took certain disciplinary actions against him "for the purpose of
causing harassment and emotional stress" (Add., infra, 2a), that
respondent's actions "caused" petitioner "deep depression and
agitation" (ibid.), and that, as a result, petitioner "has been
hospitalized and has been unable to perform his job duties" (ibid.).
Petitioner's claim thus states, albeit in rather rudimentary form, an
FELA analog for the common law claim of intentional infliction of
emotional distress.  See Buell, 480 U.S. at 568 (noting that FELA
jurisprudence gleans guidance from common law developments);  compare
Restatement (Second) of Torts Section 46 (1965) (describing the tort
of intentional infliction of emotional distress).  /6/
   Petitioner's original complaint could have been stated with greater
detail and precision.  But the complaint was adequate to give
respondent "fair notice of what the plaintiff's claim is and the
grounds upon which it rests" (Conley v. Gibson, 355 U.S. 41, 47
(1957)), and it appeared to satisfy the requirements of Illinois law.
/7/ It may well be that the FELA ultimately would not provide a remedy
in the circumstances alleged.  But that issue goes to the merits of
petitioner's FELA claim, and not to the question of removal.  Section
1445(a)'s bar on removal of FELA actions cannot be overcome by a
removal petition challenging the merits of the suit.  See Great
Northern R.R. v. Alexander, 246 U.S. 276, 281-282 (1918);  Southern
R.R. v. Lloyd, 239 U.S. 496, 500 (1916);  cf.  The Fair, 228 U.S. at
25 ("if the plaintiff really makes a substantial claim under an act of
Congress there is jurisdiction whether the claim ultimately be held
good or bad").  /8/
   We accordingly submit that the lower courts erred in permitting
removal of petitioner's FELA action.  Since petitioner has not sought
correction of that error in this Court, he has presumably waived any
objection to removal -- a waiver we believe he may properly make.  See
Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir. 1987)
(en banc).  /9/ But that error, which resulted in an unnecessary
discussion of the merits, nevertheless affects the present posture of
this case.  Here, as in Buell, the court of appeals engaged in a
resolution of the merits of the claim on a record that "has never been
developed on the exact nature of the allegedly tortious activity, or
the extent of the injuries that (petitioner) claims to have suffered"
(Buell, 480 U.S. at 567).
   2. As this Court explained in Buell, "whether 'emotional injury' is
cognizable under the FELA is not necessarily an abstract point of law
or a pure question of statutory construction that might be answerable
without exacting scrutiny of the facts of the case" (480 U.S. at 568).
 Instead, "whether one can recover for emotional injury might rest on
a variety of subtle and intricate distinctions related to the nature
of the injury and the character of the tortious activity" (ibid.).
Thus, "broad pronouncements in this area may have to bow to the
precise application of developing legal principles to the particular
facts at hand" (id. at 570).
   Here, as much as in Buell, this Court cannot "know what all those
facts are in this case" (480 U.S. at 570).  The lower courts decided
petitioner's suit based solely on petitioner's original and amended
complaint.  Thus, the Court "cannot begin to decide whether
(petitioner) will be able to support his allegation that (respondent
is) liable to him under the FELA" (ibid.).  The lack of an adequate
record -- here, as in Buell -- would pose a substantial, if not
surmountable, obstacle if this Court were to attempt to resolve the
question whether the FELA permits recovery for emotional injury.  /10/
   3. Neither the court of appeals nor the district court explicitly
addressed petitioner's second question -- whether the RLA preempts a
common law suit for emotional injury.  It is not clear whether
petitioner, who relies alternately on "federal common law" (Pet. i
(Questions Presented)) and "Illinois common law" (id. at 11),
adequately presented that question below.  We would expect, in any
event, that the relevant inquiry would also include the question
whether the FELA -- which is concerned with personal injury --
preempts petitioner's common law tort claim.  See New York Cent. R.R.
v. Winfield, 244 U.S. 147 (1917).  Obviously, the FELA's preemptive
effect may turn on the scope of the FELA remedy.  Assuming that
petitioner's second question is a matter in issue and was properly
preserved below, the record here, as in the case of the first question
presented, is inadequate to allow this Court a meaningful opportunity
to address that question in all its aspects.
   We accordingly conclude that the case does not provide an
appropriate opportunity to resolve the issue that this Court left open
in Buell, nor does it present any other issue warranting this Court's
review.
                              CONCLUSION
   The petition for a writ of certiorari should be denied.  /11/
   Respectfully submitted.
   WILLIAM C. BRYSON
      Acting Solicitor General
   JOHN R. BOLTON
      Assistant Attorney General
   DAVID L. SHAPIRO
      Deputy Solicitor General
   JEFFREY P. MINEAR
      Assistant to the Solicitor General
   MICHAEL JAY SINGER
   KATHERINE S. GRUENHECK
      Attorneys
   JANUARY 1989
   /1/ Section 1445(a) provides:
         A civil action in any State court against a railroad or its
      receivers or trustees, arising under sections 51 to 60 of Title
      45, may not be removed to any district court of the United
      States.
   28 U.S.C. 1445(a).
   /2/ If that process fails to produce an agreement, each side is
free to resort to strikes, lock-outs, or other forms of economic
self-help calculated to achieve the desired objectives.  See 45 U.S.C.
152 Second and Seventh, 155 First, 156, 157, 160.  See also Burlington
N.R.R. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429,
444 n.10 (1987);  Brotherhood of R.R. Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369, 378 (1969).
   /3/ In such circumstances, the adjustment board's arbitration
decision is binding on the parties (45 U.S.C. 153 First (m), Second),
and judicial review is narrowly limited to whether the board exceeded
its jurisdiction, failed to comply with the RLA's specific statutory
requirements, or was influenced by fraud or corruption (45 U.S.C. 153
First (q), Second).  See Union Pac. R.R. v. Sheehan, 439 U.S. 89, 93
(1978) (per curiam).
   /4/ We have reproduced petitioner's complaint and his first amended
complaint as addenda to this brief.
   /5/ The court of appeals observed that petitioner's amended
complaint "could not be thought frivolous, since the Ninth Circuit
explicitly disagrees with Lancaster (see Lewey v. Southern Pacific
Transportation Co., 799 F.2d 1281, 1288 (9th Cir. 1986) (citing
cases)), the Fifth Circuit disagrees implicitly (see Yawn v. Southern
Ry., (591 F.2d 312, 316-317 (5th Cir. 1979))), and the Supreme Court
reserved the issue in Buell (see 107 S.Ct. 1417-1418)." Pet. App. A4.
The court of appeals considered petitioner's original complaint
frivolous, however, because that complaint failed to allege that
petitioner's injuries arose from unsafe working conditions.  See id.
at A5.
   /6/ The court of appeals' conclusion that petitioner's complaint
stated "a pure breach of contract claim" (Pet. App. A4) is somewhat
startling.  First, the complaint nowhere alleges that the employer is
subject to contractual duties or that the employer breached those
duties.  See Add., infra, 1a-3a.  Second, the RLA's "minor dispute"
provisions, which require mandatory arbitration of contract disputes,
would prohibit petitioner from bringing a breach of contract action.
See pages 3-4 & n.3, supra.  Thus, the court of appeals construed a
complaint that made no mention of a contract or its breach as stating
an impermissible breach of contract claim.
   /7/ Under Illinois law, "(n)o pleading is bad in substance which
contains such information as reasonably informs the opposite party of
the nature of the claim or defense which he or she is called upon to
meet." Ill. Ann. Stat. ch. 110, para. 2-612(b) (Smith-Hurd 1983).
Illinois law further provides that if "any pleading is insufficient in
substance or form the court may order a fuller or more particular
statement." Ill. Ann. Stat. ch. 110, para. 2-612(a) (Smith-Hurd 1983).
   /8/ The court of appeals' suggestion that petitioner's original
complaint was frivolous (Pet. App. A5) is unconvincing.  This Court
left open in Buell the question whether, and under what circumstances,
the FELA would provide a remedy for "wholly mental injury" (480 U.S.
at 567).  As the Court noted, the question may well turn on analogies
to developing state common law, which manifests widely divergent
approaches with respect to "the degree of intent required to establish
liability, and the level of physical manifestation of the emotional
injury required to support recovery" (id. at 568-569, footnotes
omitted).  Under these circumstances, petitioner's complaint should
not be deemed frivolous on the mere ground that it failed to allege
"unsafe working conditions" (Pet. App. A5).
   /9/ The Section 1445(a) limitation was first enacted as part of the
FELA (Act of Apr. 5, 1910, ch. 143, 36 Stat. 291) and was subsequently
codified in Title 28.  The Fifth Circuit originally held that Section
1445(a) was a non-waivable jurisdictional provision, see Gamble v.
Central of Ga. R.R., 486 F.2d 781, 785 (1973), but later overruled
that decision in Lirette.  In holding that a plaintiff could waive
Section 1445(a)'s prohibition on removal (820 F.2d at 117), the court
of appeals relied on Grubbs v. General Elec. Credit Corp., 405 U.S.
699 (1972).
   /10/ We agree with respondent that the decision below does not
squarely conflict with the holding of any other court of appeals.  The
Ninth Circuit's decision in Buell, 771 F.2d 1320, 1321, 1324 (1985),
was vacated by this Court (480 U.S. at 571) and other decisions cited
by petitioner appear distinguishable on their facts.  The reasoning of
the court below, however, is at odds with the reasoning of the Ninth
Circuit in Buell and other cases, and its holding may be in conflict
with that of the California Supreme Court in McMillan v. Western Pac.
R.R., 54 Cal. 2d 841, 9 Cal. Rptr. 361, 357 P.2d 449 (1960).  But all
these decisions were pre-Buell, and this Court's approach in Buell
strongly suggests the desirability of awaiting a case with a fully
developed record.
   /11/ The court of appeals may well have erred in resolving this
case on the basis of its pre-Buell decision in Lancaster v. Norfolk &
W.R.R., 773 F.2d 807 (7th Cir. 1985) (see page 7, supra), rather than
following this Court's example in Buell and remanding the case for
further factual development.  Though this Court may wish to consider
summary reversal on that ground, we do not believe such a
case-specific error is an appropriate basis for plenary review.
   APPENDIX