the irony in this case is that that mr hassel was working on these passenger cars in a coach shop in texas twenty or thirty years before it you know theoretically it was ever attached to a train but be that  if the if the piece is integral or essential to the completed locomotive obviously that's not the case here because we're committed is operate on their own they work in switching yards they have independent brakes they move cars around they're fully capable of operating without a car without being consigned to a train a bit me ask you this only yes let's assume you win on the preemption issue but don't you still locomotives yes and the safety appliance act or x has a specific list and this isn't covered on that specific list your out of the amendment the request for an amended complaint was obviously an afterthought and  honor that's true we went after the preemption thesis head on but once the judge decided to rule on motion to dismiss he had to file make this finding somewhere he had to come up with the interconnection brought up perry this is one aspect that that i feel is really important to make the court aware of i'm not here to argue perry it's not my case and that this court doesn't have to get to the question of whether perry and the breaks is properly decided  said lunsford really doesn't apply anymore as long as the f r a can regulate that's true if it's a locomotive the part that's true if it's a locomotive part of it but the f r a is a very busy agency bright enough what justice kennedy did in that case was he looked and said is this a locomotive is this under the locomotive inspection act and the answer was yes and the reason it was under the locomotive inspection act because the locomotive safety standards the regulations that the f r puts out for for ally he said was there they regulate locomotive lighting so it was easy if it went to what the plaintiff was claiming however was that  better or additional device was needed in other words the vindication of the plaintiff's claims were if imposed a state standard of care where the l i imposed its own care that's why it was only those devices that increase the peril are included under the locomotive inspection so the vices that are at the end of a train thirty current car lengths away even if they're somehow theoretically interconnected under a webster's different definition of i mean there are all sorts of things that run under trains but even if they're theoretically interconnected electronically or i pastor something they don't rove and more specifically mrs hassel has waived this issue by specifically informing the district court she agreed that this was a question of law didn't require any factual development to silence or that presented these questions are these are questions of law for work citing a case and in the actual title of that section see nothing prevents a final ruling on buzz motion motion cases or thought there was a need to reach any additional issues the court didn't think that there needed to be any additional actually didn't convert it to a fifty seven as well as correct and that was even a mistake it may very well have been but i don't think that it's one that would require the court age of the cases that we're relying on these are cases that just have not been cited haven't been referenced in the decisions but they are supreme court decisions and as we see from the kerns decision they remain gridlocked principally because of the special force given to statutory start aside since there's a there's an old adage with respect to judges never decide today what you can decide tomorrow for tomorrow may not need to be decided it's true that if somebody else may get a very that's true you locomotive but well you know read the law it's part of the locomotive that's true it would be part of a locomotive and they were covered under that act but this is of a different it's a fact pattern as you saw it exactly right your honor and if we go back to something roadway versus relic commission of indiana the us supreme court went out of its way to say that the as a preemption is not limited to just the specific items that are listed in the statute but rather extends to the entire subject matter of acquitting railcars with appliances that are designed for the safety of employees that is unambiguous and i think it's important to specify to spend some time on this we run these high safety measures on as well as to not ensure destruction of the pipe itself is disorder is a safety issue it is a safety and should be on the list well it's not but again the issue is whether congress manifested  intent to occupy the field of safety appliances not necessarily whether it specified each individual fair point but if it's got to play that field it need not create a list because then you're going to get weak you know  that's true but i think this goes back to the historical context i think it's one spent just a few moments on that historically it's important to note that this case occurred in one nine hundred fifteen it's three years after the supreme court for the very first time in  adopted the doctrine of fuel preemption southern railway versus reed it's three years later the very same company comes back to the court and says three years ago you found a real  regulation case that that preempted the field with respect to that issue we're now here dealing with a specific act that deals with safety appliances we want you to apply the very same doctor and say that congress has manifested an intent to deal with the issue of safety of interstate rail transportation with respect to robbers and the court could have said no we disagree we're going to say that they've reacted the field on these parts but they didn't do that the court went out of its way to say it's not limited to just these parts it goes to the entirety of the subject matter about feel therefore we can write you need list absolutely or are in in terms of the fact that it's not an exhaustive list that the fines the field the the field itself is any possible safety appliance that could finding that this is a safety points well i don't know there was a specific fire that was a safety pilot because the ruling was based under the ally but the issue was briefed and this is hassled did not argue that this  a safety appliance in the sense that the installation by sort of as a safety issue or as a safety component so i would argue that issue isn't really before the court the parties have not raised that and and put that in dispute  but i would also note that this is not an isolated incident the one hundred fifteen decision was followed by twenty years later in the ovary another supreme court decision where the court again was addressing the scope of s a a reaction and although that case was in a slightly different context whether preempted a worker's compensation statute the court again citing back to the southern roe wade versus indiana decision made it very clear that the statute had very broad preamp of the fact it was not limited just to the issues that are specified the parts the appliances are specified and sacha and i think it's important understand the context of that decision because that is a and yet the s a a reaches interstate well cars so even though it doesn't preempt that area it's again a reaffirmation by the supreme court twenty years later the field is not limited to what's in the statu what's proposed by this hassle is a concept of split preemption you've got about twenty seconds left thank you i'll be very brief on this issue our approach that we're asking quarter top is very simple these two statutes combine it preempt on the train level equipment if we were to it well let me stop even further that is a approach that is consistent with national uniformity right the portions being advocated here by mrs hassell is one that  these actions that we would say he's not entitled to so if you're if i guess i can address these arguments or we can just rest on the papers i thought that about how it's briefed or we can address them now i think