for the court's review a question concerning the proper preemptive scope of the federal locomotive inspection act i'll be referring to it as the l i unlike the question presented to the united states supreme court opinions of the supreme court and numerous other courts that have looked at this question and reliable congressional intent all should lead this court to one conclusion the l i e does not preempt causes of action for which the federal locomotive inspection act of the l i e provides the standard of care unfortunately the district court below came to the opposite and we believe in correct conclusion in the district court judgment it decided that the claims were preempted and dismissed them on twelve b six grounds if the district court's judgment is allowed to stand locomotive manufacturers will be free to disregard the l i and violate the l i a with impunity at the same time railroads that are left to shoulder all of the expense that results from the manufacturers ally a violations will have no recourse not even to enforce the manufacturer's voluntary contractual promises to provide l i i compliant equipment why could they have forced the contracts with them now that you use bird something there with your last point even if even if you were to continue to lose why couldn't you make a contract with them that makes them do good stuff well certainly we have we believe third party beneficiary rights to enforce the contract but the district court came to the opposite conclusion of the don't you buy these seats these are seats right don't you buy a home from these people well this seat are actually purchased by the manufacturer of the locomotive and home generally g e in this case so g e would contract with the seat manufacturer to get the seat and install it we are the beneficiary of all of that and certainly our rights are contemplated if you get a lot of bargaining power here all the big railroads couldn't you say we got to make a deal with the people who are making the seats and whether or not we could your honor in this particular case it appears and again we were the very beginning of this process because we filed a complaint there was a twelve b six motion to dismiss filed and that's where it ended in the meantime you're stuck go in the mirror time where stack so what's wrong though with with you know we've got feel preemption what's wrong with a scheme in which the railroad shoulder all the responsibility there's other examples of that where congress or states have decided that a particular entity is strictly liable and can't ever sort get someone else in the in the chain what's wrong with with with a holding like that here if that were congressional intent perhaps nothing but that's not and field preemption is interesting and i think that there has been perhaps some confusion among some of the lower courts that have looked at what field preemption is filled preemption as this court now occurs when congress intends for federal law to completely occupy a particular field and therefore withdraws day eight lawmaking power within that field this all stems from the supremacy clause and so all that field preemption means is that they cannot enact duties standards of care that would be inconsistent with the federal standard that congress has conceived of and wants to have applied and you want to rely on the federal standard but are there elite any elements  state cause of action that have unique state law requirements in other words you want to say negligence percent or something like that based on the federal standard but i'm wondering whether the causation standard in state under a state cause of action or some other part of the state cause of action may be may impose its own requirements the may be inconsistent with with with federal law to be clear in this case we did not assert a claim for negligence per se  however i would say that the question of preemption doesn't have to do with some of the specifics that you're talking about with respect to the cause of action what preemption gets to is the duty is the standard of care and so long as the cause of action is seeking only to enforce that federal uniform federal standard there is no question of preemption so it doesn't matter for example if if you know or in minnesota of minnesota has a strict causation requirement in say iowa as a very loose causation requirement or  whatever that doesn't matter for purposes of preemption that's not correct that's not what is at the heart of the preemption issue the preemption concept it is that uniform federal standard that applies across the board and that is what congress intended to do in acting the locomotive inspection act and we don't have to look far to see that and we don't have to stretch our imaginations to come to that conclusion if you go back and look at the history of the act and what the act says and you look at the way in which the supreme court has interpreted the l i e that is all very clear from that the locomotive inspection act itself makes it clear that nothing in the l a a self there is a penalty against any person who violates the l i and then the las regulations go on to make it even more clear that penalties for l i i violations apply to quote any person including but not limited to a manufacturer of railroad equipment and also how do you respond to judge hardiman the dissenter in the third circuit his real point is that regardless of what we federal courts a state courts will necessarily inject state law policies into this ally duty because as you know these can be brought in state court for sure absolutely and are brought all the time in some state courts you're well aware yes so how do you respond as that's kind of the policy driving point of that part of  opinion really most of his opinion it really is a pause the argument and i just i don't think that it has any bearing on the situation congress has long intended for violations arguably a the federal employers liability act and the l a and the as a the bank the appliance act all of those can be considered in state court there is concurrent jurisdiction as between that is a very strong indication that congress intends for state court to consider all of these concepts f e l a liability potentially standards that are imposed by the l a or the  and the safety appliance act and they've never seen fit to change any of that they're quite comfortable that all shows with the fact that state courts are considering actions that deal with federal standards in this field and they won't sneak in state policy i'm quoting him and all these you know all these times that they that they won't sneak in ordinary state policy concerns i think that that is and realistic to believe that that's what's going to happen i think that as congress has indicated it is comfortable with the fact that states very properly apply the law on these contacts they are comfortable that that is where they are and if this if a student's fall in state court it stays in court can make those decisions and what we're really concerned about are not some of the peripheral things i suppose that he may be trying to get to the preemption question is focused on the standard of care and there is one standard of care and state courts take very seriously the responsibility to make sure that that standard is applied uniformly that doesn't mean that every case is going to have the very same outcome and i think that's one thing that might  influence the dissent and that certainly influences seat's argument here but i think that what happened when we start talking about the difference an outcome that is very different than what we're talking about in terms of the uniformity of the regulation so long as we have one standard that all of the courts are applying that federal standard that has been articulated in the l i any concerns about uniformity no way it's the standard that makes the difference and just as in every case there is much the evidence might suggest a different outcome and lead to a different outcome that's not where we're concerned when we're talking about preemption even though the standard of care is very broad very general it's very open and well i would suggest that it's not as open ended as you might suggest that it is but even if it is that is the standard that congress has articulated as the federal standard for so that's the standard we have and so long as the courts are applying it uniformly that's the end of the analysis on that one is it does the result of this end up again it's heart of a point judge arguments point does it end they found kearns express holding was very clear in terms of the fact that the l i of pre amps only state statutory and common law duties and standards of care you know in the current case justice thomas went through and talked about napier and what napier had held it acknowledge holding that the ally was intended to occupy the field and talked about what the field was the design the construction the material of every part of the locomotive  tender and all of its department says and then went on to say that the state supreme court concluded that state common law duties and standards of care directed to the subject of locomotive equipment are preempted if that weren't clear enough because it focused on state common law standards of care that are preempted not the federal standard of care so there's no way really to get to the true meaning and to the true impact on kern's without giving effect to all of the words used and those words state common law standards and duties of care are particularly important here because that is all that is preempted in the local or judgment in both the majority and the dissent recognize that but it doesn't this is a situation in which consistent with other precedent from the united states supreme court state causes of action are allowed when we're talking about enforcing a federal standard in this case you were entitled to proceed exactly what would be the basis of your claim against the corporation your seat didn't meet the standard sufficient well you know this may work in this case because we want all seats to be properly mounted but what happens again using my earlier example this gets to the breath of the standard what happens if in a particular case minnesota decides you need a particular type of arm rest on a seat and i'm not an expert on what seats are are on a on a on a locomotive but you know minnesota decides because you didn't have our particular types of armrests and somebody fell off the seat that that didn't make it safe to operate or through some judicial opinion and and requirements like you're talking about those would be preempted because that would be a state standard but couldn't put boo but they would hinge it upon the safe to operate language that would say look this seat is not safe to operate without these without these particular require because it's so broad i mean i'm kind of with judge betted what we do about the breath of the standard here if it creates disparate requirements with all due respect this court doesn't do anything about the brought that that standard congress has seen fit to make the standard what that standard and consistent with its decisions whether we're talking about would we're talking that kramer tipton or many other cases where there were federal statute that the standard was applied through a state cause of action that's all that we're saying here and to the extent that the standard is broad that is what it is and that is what congress has determined it to be and that is the standard that will be applied until congress decides that it should be something else for preemption purposes and it's too bad that if that standard leads to different requirements through litigation if it leads to different requirements that's one thing they cannot regulate the requirements because that would be absolutely at odds and preempted by the l a a but the fact that there may be different common law actions involving railroad equipment for a locomotive not anything else but for a locomotive we not be brought against a manufacturer so the question is can these two fundamental points be easily sidestepped by simply piggybacking the legal claim on top of a state law common law claim will counsel now wait wait under no pay under  period they cannot use a state statute like the minnesota statute requires this of the some i was dead she can't use that for kline and under kern's you can't use just general common law state negligence you have to le a federal overlayed that voids preemption you've basically there's not much left of kearns after that because any any any point to get is late it was done in this case could easily just say i've got my common walk lane and we're alleging a aliya claim is part of the standard yeah you've got a trojan horse arguments what you're already right you're just putting the you're just putting the federal claim on top of the  like the atomic energy act and why isn't it like the federal aviation act you know the majority opinion why isn't it like those where gosh as long as they keep talking all federal they can be they can wink and nod but they've got to talk all federal field preemption and you have a situation where there's really no getting around it if you if you apply this law there's really it's very easy to get around kerns and if that happens that should tell us that something's wrong and what it's telling us is that policy arguments that should be debated in congress have really swallowed up a supreme court case and let's be clear about what these policy arguments mean what they mean is this that any railroad worker any non real world worker any passenger or any bystander any railroad can bring a common law claim against any manufacturer in state court or federal court about any part of a locomotive and all you have to do is just tack on the layer of standard and there you are and if the a century of federal regulation of railroads is going to be unraveled in that way then that's up to congress to grapple with all the implications all the effects on constituents that such a dramatic change would make i mean that's that's what is really is that judge hart m m's decision is the one that is he put he put it it represents the logical extension of kearns the majority opinion in nodal or starts off t the logic is that the current case stands for the proposition that even when there are no other remedies available in the current case the plaintiff the widow deceased railroad worker had no other remedy the only remedy left was the claim against the manufacturers and the supreme court in that case said your your claim is preempted and that leo and that is a behavioral statement of what we think is how state judges state courts will behave and frankly we don't trust them that's a we don't trust them and judge jordan and the courts say yeah we trust them to keep them different now how should we a court decide they're both going on behavioral basis how should we decide that i think the starting point is first to make the distinction between express preemption which applies in cases involving the essay and feel preemption which is leah and in a really requires us to say and this gets a little abstract let's just get very practical about this what's the substance the substance here is we're taking a very open ended federal standard you know if that quote is the locomotive improper condition is it safe to operate and we're going to put that very nebulous federal standard on top of the product liability common law of fifty states we don't trust them to keep them separate right would not know we just don't trust them to keep them separate oh it's not a matter of trust it i don't think it's a matter of law we're just saying the reality is that state common law product liability i mean it's it varies all over the map just every state may have a presence contributory negligence may be handled differently this in this case when you have a statutory violation i mean some states may view that is negligence per se some may say no it's not negligence percent it's just some evidence of negligence you apply that standard in it's still it's still a state law claims in that state law claim can be applied in any number of ways when you're dealing with the federal standards go applied in a state court or in a federal court sitting injured diversity because you could remove these claims because because they're still state law claims and they're still going to come what comes with that or all the many permutations of state common law it's going to vary for all fifty states and that goes to the very core of what leah is all about is this is the very definition of very recipe for where the court has allowed things such as contribution claims under state law and may have it in there that has not been a problem but the the problem with that of course is a it's it's not the least of preemption and they don't address the the braf of field preemption and what it what it doesn't do is address the effect of the kerns decision because i keep coming back to this idea  what's left of kearns if you can be so easily avoided i mean it in it can be i mean as is this case shows all the talk in the complaint here was just one paragraph that said we're going to we're going to ask the court to apply the federal standard because you want to allow injured railroad workers that have claims and went in by allowing feel or to apply there you're giving the injured workers additional help in proving their cla and congress that was part of the the whole idea behind it is that we're going to tolerate some variation with the feeling that's different from claims outside of philo and if we were go if we're going to allow exactly what happens feel like that changes it dramatically what about the safety appliance act it's been a little while but twenty years since i've let it get into case but the safety  appliance act contains a lot of requirements as i recall that are very similar to locomotive inspection act and yet in tipton and crane the supreme court says that those those cause of action can go forward what makes the locomotive inspection act other than this theoretical distinction between express preemption feel preemption different well that that is that's primary and i think the the other major decision is the other major distinguishing feature is judge harden points out of his  t there was no remedy put it this way put it this way the the court in encourage didn't say you have no remedy but if you had only added reviewed only tacked on a le standard you would have had a remedy and that that's something you would think the supreme court might have said if they were shutting the courthouse door on the the plaintiff in kearns who had no other remedy you know to get back to my original question are there major differences in your view even aside from the theoretical distinction between the safety inspection act of course they cover different things but they're both highly technical statutory schemes and they're certainly regulations as judged b interstate commerce was it really it was a different case altogether crane is a case that doesn't have anything to do with with with preemption and so what we're what we're talking about and kearns though in the sense that and i don't pretend that i could list all the many different permutations but they do deal with but we do know that congress made a decision with the libya that it would be treated differently there's no there's a locomotive inspection actors no box car inspection actors no passenger car inspection after a gondola inspection as it is it is special and in its own way and has been for  then the key here is is it part of the physical element of the lia and there's no question here and there's no dispute this is part of the physical element of the locomotive and  your response there's cases there's case first of all has nothing to do with lia preemption of course and it dealt with the the question a second issue was whether  workers that were injured had their damages allocated between railroad and non railroad causes the supreme court said no it doesn't under feel it said by the way roads also have the ability to seek contribution or idea as to cases and it just stands for the proposition that you can bring a contribution claim within aliyev actions and that and so they really it doesn't it doesn't touch on this i mean the idea if the majority in current is a contribution claim and it's a continent and it's a case in which the remedy was extinguished and in my just my quick remaining time i just want to address your point about contracts yes railroads can have contracts so long as they are not contracts that are repackaged is toward claims and they do not rely upon common law claims such as the third party beneficiary they can protect themselves with contracts that are within the four corners they can have sophisticated parties can say i want a b and c and if that doesn't that doesn't happen then there is a claim but that is not relying upon state law obligations it is not a repackaged tort claim as we have here so that's how railroads can also  state law claims for which state law provides the standards and duties of care that is not the situation that we have here with respect to the question about the l a and the s and a state has tried to distinguish crane and tipton on train which the n s a explicitly governs and so from a preemption perspective the n s a and the l i are exactly the same there's no way to distinguish as a an ally as a based on this as you say the radical distinction between express preemption and bill preemption it just doesn't get them where they want to go with respect to that whole come concept of field preemption keep in mind that what bill preemption does i know i've said this already is that it occurs when congress intends for federal law to occupy the field and withdraw its de lawmaking power that is not what we have here we have a federal standard that applies across the board to extend field preemption further than the court did in napier and current creates federalism concerns by removing states ability to govern without any congressional indication that that was the result that it intended it just is not this whole sky is falling everyone in the world will try to attack on an ally a violation the ally is not so easy there are specific requirements that have to be met and in most cases they can't be met and if even if someone were to try to allege it they would not get very far for the l i e to apply the locomotive has to be in use you have to be able to find a part that w not in proper working condition employees generally are always going to go under the f e l a they won't be going understand cause of action the notion that people are going to come out of the woodwork trying to assert that cause of action within l a a standard tacked on is just unrealistic the reason that we have as the railroad company a claim that we can make here is because our employee sued us for violation of the ally and we had to settle that and we now see contribution back against the only party they could make that right we had to pay under air we had to pay and heirs makes it very clear that the railroad is responsible in the first instance completely to its employees under the f e l a n l a a but then it is an option for the railroad to go back against the manufacturer who is the party that is responsible for the violation it's a contribution and indemnity is alive and well it's just not that that has gone away after  the issue here is the same as it was and so judge woman i do encourage you to go back and take a look at all of the different aspects since i don't have time to go through all of it to see all the instances where the supreme court has allowed another statutory contacts violations of federal law to be redressed three state causes of action at the end of the day what states is trying to do is to secure meant immunity for manufacturers at the expense of the railroads that is something that ne congress nor the supreme court has ever indicated and trust and doing and to try to disincentive manufacturers from producing safe equipment is certainly at odds with what the l i e is all about