FILED

United States Court of Appeals

Tenth Circuit

October 23, 2012

Elisabeth A. Shumaker

Clerk of Court PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIDGET SMITH

Plaintiff - Appellant,

v.

RAIL LINK, INC.; GENESEE &

WYOMING, INC.,

Defendants - Appellees.

No. 11-8011

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

(D.C. No. 2:10-CV-00156-NDF)

Marc Wietzke of The Law Offices of Michael Flynn, PC, Garden City, New York (Jubin

& Zerga, LLC, Cheyenne, Wyoming with him on the brief), for Plaintiff-Appellant.

Melisa G. Thompson of Bates Carey Nicolaides LLP, Chicago, Illinois (Scott L. Carey of

Bates Carey Nicolaides LLP, Chicago, Illinois; Larry B. Kehl and J. James Learned of

Buchhammer & Kehl, Cheyenne, Wyoming, with her on the brief), for DefendantsAppellees.

Before MURPHY, HOLLOWAY, and GORSUCH, Circuit Judges.

HOLLOWAY, Circuit Judge.
Plaintiff-Appellant Bridget Smith worked for Rail Link, Inc. (“Rail Link”) as a

freight operator at the Belle Ayre Mine in Wyoming. She was injured on the job, and

subsequently sued Rail Link and its corporate parent Genessee & Wyoming, Inc.

(“GWI”) in federal district court, asserting that the companies were liable for her injuries

under the Federal Employers Liability Act (“FELA”). FELA provides, in certain

circumstances, a federal cause of action for injured employees of common carriers by

railroad. 

The Defendants moved for summary judgment, contending that they were not

subject to FELA liability for Ms. Smith’s injuries because FELA only applies where a

defendant is the injured worker’s employer and is a common carrier. Rail Link argued it

was a not a common carrier, and GWI argued it was neither a common carrier nor Ms.

Smith’s employer. The district court agreed granted summary judgment for both

Defendants. Ms. Smith appeals that ruling. We AFFIRM.

I. Background

A. Rail Link’s and GWI’s operations.

Rail Link is a railroad switching company inter alia. A switching company

facilitates the internal movement of railcars within a certain location, such as a coal mine. 

Rail Link contracts with private businesses to provide on-site operational assistance at

industrial facilities. At the Belle Ayre Mine, a coal mine located in the Powder River

Basin near Gillette, Wyoming, Rail Link has a contract with Foundation Coal West, Inc.

(“Foundation Coal”). Pursuant to that contract, Rail Link handles Foundation Coal’s

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shipments into and out of the Belle Ayre Mine. The shipments are carried on track

owned or leased by Foundation Coal, and the equipment used is neither owned nor leased

by Rail Link. Under the contract with Foundation Coal, Rail Link’s fee depends on the

quantity of material it moves within the mine.

In addition to the services provided at the Belle Ayre Mine, Rail Link also

provides management and oversight services for railroad terminals. Rail Link’s clients

include the Corpus Christi Terminal Railroad, the Savannah Port Terminal Railroad, the

Golden Isles Terminal Railroad, and the York Railway Company.

Rail Link is also a corporate parent to two short-line railroad companies, which

make their rail services available for hire by the public at set tariffs — Commonwealth

Railway, Inc. (“Commonwealth”) and Talleyrand Terminal Railroad, Inc. (“Talleyrand”). 

These short-line railroads provide the connection between long haul railroad companies

(such as Norfolk Southern and CSX) and railroad terminals, where trains are loaded,

unloaded, and redirected to new destinations. Rail Link owns some locomotives but does

not own any rail cars or track.

GWI is Rail Link’s corporate parent and is a corporate holding company. Its

wholly-owned subsidiaries include numerous railroads which, like Commonwealth and

Talleyrand, make themselves available for hire by the public for published tariffs. GWI

also owns a company called Genessee & Wyoming Rail Services Inc. (GWRSI), which

provides administrative and management services to many or all of GWI’s corporate

subsidiaries, including Rail Link. For example, GWRSI, acting in the name of GWI,

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manages many of the human resources affairs of Rail Link (as well as other GWI

subsidiaries) and promulgates safety regulations that Rail Link’s (and other subsidiaries’)

employees are ultimately expected to follow. GWI, GWRSI, Rail Link, Commonwealth,

Talleyrand, and other GWI subsidiaries have substantial overlap amongst their managers

and directors. In other words, many managers and directors serve similar roles for

multiple companies in the GWI corporate family.

B. Ms. Smith’s lawsuit against Rail Link and GWI.

Ms. Smith worked for Rail Link as a freight train operator at the Belle Ayre mine. 

In August 2007, she was injured on the job. She instituted this action against Rail Link

and GWI, asserting a cause of action pursuant to FELA, 45 U.S.C. § 51. The essence of

her claim is that Rail Link and GWI — both alleged to be common carriers by railroad —

simultaneously employed her at the Belle Ayre Mine and acted negligently, resulting in

the severe injuries she suffered at the mine.

Rail Link and GWI jointly moved for summary judgment. Rail Link argued that it

was not a “common carrier” as a matter of law. GWI argued that it was not Ms. Smith’s

“employer” as a matter of law.1

 Because each of those statuses is required to maintain a

negligence action pursuant to FELA, the Defendants argued that Ms. Smith’s suit could

not be maintained against either of them. The district court granted their motion for

1

 GWI also argued — and continues to argue on appeal — that it was not a

“common carrier,” but the district court did not address that argument, and we have no

need to in light of our affirmance of the district court, which is based on GWI’s

alternative argument.

4
summary judgment and entered final judgment in their favor. II Appx. 545-557. Ms.

Smith appeals that decision.

C. FELA background.

The FELA provides that:

Every common carrier by railroad while engaging in [interstate or foreign]

commerce . . . shall be liable in damages to any person suffering injury while he is

employed by such carrier in such commerce [where the injury resulted from

negligence or defective equipment] . . . .

45 U.S.C. § 51.

Thus, there are three basic prerequisites to FELA liability. The defendant must, at

the time of the plaintiff’s injury, be (1) a common carrier, (2) employing the plaintiff,

(3) in furtherance of interstate commerce. The absence of elements one (as to Rail Link)

and two (as to GWI) formed the basis for the district court’s summary judgment ruling in

favor of the Defendants in this case.

II. Summary Judgment for Rail Link

The district court’s grant of summary judgment in favor of Rail Link was based on

a finding that Ms. Smith had not produced evidence sufficient to raise a genuine issue of

material fact as to whether Rail Link is a common carrier. Initially, we note that the text

of the FELA statute does not say that the injured worker must be acting in furtherance of

the employer’s common carrier status when she is hurt in order for a cause of action to

lie. Rather, the injured worker must simply be furthering the employer’s engagement in

interstate commerce. Congress could have limited the scope of FELA to cover only those

injured employees who were furthering their employer’s operations as a common carrier

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when they were hurt. Instead, however, Congress imposed liability on a whole class of

companies through FELA, and only exempted claims by employees of common carriers

who are hurt when doing something other than furthering interstate commerce — not

those employees who are hurt when doing something other than furthering common

carrier activities. See 45 U.S.C. § 51.

Thus Rail Link’s potential liability in this case turns not on whether Rail Link was

acting as a common carrier at the Belle Ayre Mine where Ms. Smith was injured – Ms.

Smith does not dispute that it was not so acting there – but instead depends on whether

Rail Link was a common carrier at other facilities. That Ms. Smith never worked at those

facilities is of no moment. An employer is a common carrier everywhere for FELA

purposes if its operations — wherever executed — are those of a common carrier. See

Mondou v. New York, New Haven & Hartford R.R. Co., 223 U.S. 1, 52 (“[T]he liability

which [FELA] creates is imposed only on interstate carriers by railroad . . . and is

imposed for the benefit of all employees of such carriers by railroad who are employed in

interstate commerce, although some are not subjected to the peculiar hazards incident to

the operation of trains . . . .”) (emphasis added).

A. The standard for determining whether an entity is a “common” carrier.

Under FELA, a common carrier is “one who operates a railroad as a means of

carrying for the public — that is to say, a railroad company acting as a common carrier.” 

Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187 (1920). “[T]here exist a number of

activities and facilities which, while used in conjunction with railroads and closely related

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to railroading, are yet not railroading itself.” Edwards v. Pac. Fruit Express Co., 390

U.S. 538, 540 (1968). Other courts of appeal have formulated intricate tests to aid in the

inquiry whether an entity is a common carrier under FELA. See Lone Star Steel Co. v.

McGee, 380 F.2d 640, 647 (5th Cir. 1967) (establishing a four-part test to aid in

answering the question whether an entity is a common carrier); Kieronski v. Wyandotte

Terminal R.R., 806 F.2d 107, 108 (6th Cir. 1986) (defining entities as private carriers,

linking carriers, and in-plant operators and using that classification to determine whether

an entity is a common carrier under FELA). 

Our court has eschewed exclusive adoption of any such test and instead relies on a

more fundamental inquiry: Does the defendant “operate[] a going railroad that carries for

the public”? Sullivan v. Scoular Grain Co., 930 F.2d 798, 800 (10th Cir. 1991). Rail

Link certainly does not do this at the Belle Ayre Mine, where it has one contractual

relationship with one client and is paid pursuant to a contractually negotiated formula. 

Ms. Smith does not argue to the contrary, and instead asks us to consider Rail Link’s

activities elsewhere in determining its common carrier status. But the only evidence on

this point is that Rail Link provides management and oversight services at various

railroad terminals. Oversight and management services necessarily implicate the

existence of some underlying carrier whose operations are being overseen. The

underlying company — the true carrier by rail — is the one which is subject to FELA

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liability, not the company (Rail Link) which is called upon for advice and consultation in

ensuring that the carrier’s workers operate efficiently.2

B. Rail Link’s advertisement of its capabilities at other locations.

In addition to Ms. Smith’s argument that Rail Link is a common carrier by virtue

of its nationwide operations, she also argues that Rail Link is a common carrier as a result

of the kind of services it holds itself out to the public as able to provide. In support of this

position, Ms. Smith points to GWI’s website, as well as filings with the Securities and

Exchange Commission which state, inter alia, “As a common carrier by rail, we are

required to transport hazardous materials, regardless of risk.” Aplt. Br. at 22. But this

evidence only shows what GWI does and does not reveal anything about Rail Link’s

operations. 

2

 The record indicates that a local business journal reported that Rail Link

“operates” at the Corpus Christi Terminal Railroad, Galveston Railroad, and Port of San

Antonio. II Appx. 355. While we acknowledge that this is a scintilla of evidence that

Rail Link actually operates as a common carrier, it cannot be squared with the

overwhelming weight of evidence that Rail Link does not operate as a common carrier at

any location, including the listed terminals and port. A mere scintilla of evidence will not

suffice to allow a nonmoving party to survive summary judgment. E.g., Lanman v.

Johnson County, 393 F.3d 1151, 1154-55 (10th Cir. 2004).

8
Ms. Smith also points out that Rail Link and GWI advertise Rail Link’s control

over common carriers. But as Ms. Smith herself notes, common carrier status is about

what a company actually does, not what it says it does, whether in statements to investors

or representations to the public on its website. While there is some allure to a rule —

perhaps derived from principles of estoppel — that a company should be taken at its word

when it boasts about its experience as a common carrier, the FELA statute requires us to

look to what the company actually does in the field. Likewise, the fact that Rail Link is a

corporate parent of common carriers (Commonwealth and Talleyrand) does not

automatically implicate Rail Link as a common carrier. 

Ms. Smith might succeed if she could show that this corporate structure was

established as a means of evading FELA liability. See 45 U.S.C. § 55 (“Any contract,

rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable

any common carrier to exempt itself from any liability created by this chapter, shall to

that extent be void,” subject to offsets for amounts paid by the shielded common carrier.). 

But Ms. Smith has made no effort at such a showing.

C. Rail Link’s contracts to provide rail support services to BNSF and other

 railroads.

Rail Link also has contracts under which it provides a host of other services at

various sites around the country. For example, Rail Link inspects rail cars for Burlington

Northern Santa Fe (“BNSF”) to ensure that BNSF — undoubtedly a common carrier by

rail — complies with federal railroading regulations. Ms. Smith points to these kinds of

contracts (we will discuss only the BNSF contract for simplicity’s sake) as a further

9
reason for us to find that Rail Link is a common carrier. As with Rail Link’s oversight

services at various locations around the country, the services provided under the BNSF

contract do not make Rail Link a common carrier.

Under the BNSF contract, there is no relationship between Rail Link and any

member of the public. Instead, Rail Link operates only at BNSF’s pleasure. The contract

does nothing to diminish or eliminate BNSF’s status as a common carrier. If BNSF

contracted with Rail Link to actually run BNSF’s rail operations, there might be a

stronger case that Rail Link is a common carrier. But FELA deals with precisely this

scenario by voiding “[a]ny contract, rule, regulation, or device whatsoever, the purpose or

intent of which shall be to enable any common carrier to exempt itself from any liability

created by this chapter.” 45 U.S.C. § 55. Section 55 has no bearing on the BNSF-Rail

Link contract, which affords no shield from liability. The company which does the vast

majority of the work in providing rail services to the public (BNSF) bears potential FELA

liability. The company which does technical work and has no interaction with the public

(Rail Link) does not.

D. Conclusions reached by other courts as to Rail Link’s status.

Our conclusion is consistent with those of various trial courts which have

addressed the issue. See Wolf v. Reliance Ins. Co., No. 99-CV-40-B, Summary Judgment

Memorandum and Order, slip op. at 12-26 (D. Wyo. Jan. 3, 2000); Erwin v. Rail Link,

Inc., No. CIV-93-160-3, Order Granting Rail Link, Inc. Summary Judgment (Cir. Ct.

Jefferson County, Ark., June 8, 1994); Waters v. Rail Link, Inc., No. 91-26837, Order

10
Granting Defendant’s Motion for Summary Judgment (D. Ct. Harris County, Tex., May

21, 1992).3

 While the decisions of these trial courts have no force under the doctrines of

issue preclusion or res judicata, we find particularly persuasive the analysis by the federal

district court in Wolf.

In Wolf, the parties made substantially the same arguments about Rail Link’s

common carrier status as the parties have made in this case. I Appx. at 79-91. The

district court ruled that Rail Link was not a common carrier due to its activities at the site

of an employee’s injuries or its ownership of subsidiaries which operate short-line

railroads. Id. Reasoning that Rail Link did not offer rail services to the general public at

the site, the court concluded that Rail Link’s private contracts to provide rail services at a

chemical plant did not make it a common carrier. Id. at 78-86. The court also rejected

the contention that Rail Link’s ownership and control over subsidiaries which operate 

short-line railroads made it a common carrier, noting that such ownership was only

relevant if there was some evidence that Rail Link’s own operations were intertwined

with those of its subsidiary railroads. Id. at 86-91.

We agree with both of these strands of analysis by the court in Wolf. And as we

have explained above, we also conclude that Rail Link’s oversight services around the

country do not amount to operation of a railroad as contemplated by FELA. Accordingly,

we affirm the district court’s decision to grant summary judgment in favor of Rail Link.

III. Summary Judgment for GWI

3

 Copies of these decisions and associated filings are also contained in the record

on appeal. I Appx. 66-132.

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A. Procedural background.

Ms. Smith acknowledges that Rail Link employed her but asserts that GWI was

also her employer under common law master-servant principles. On appeal, Ms. Smith

relies on Kelley v. Southern Pacific Co., 419 U.S. 318 (1974), in support of this theory. 

Specifically, she suggests that she was acting for two masters (GWI and Rail Link)

simultaneously, or that she was a servant of Rail Link, which she says, was a servant of

GWI. In Ms. Smith’s complaint, she alleged that at the time of her injuries, she “was also

working for the benefit of and subject to the control of Defendant [GWI], under its

direction, supervision and control as a de facto employee of [GWI] and in furtherance of

[GWI’s] business in interstate commerce.” I Appx. 13. 

In Ms. Smith’s memorandum opposing the Defendants’ motion for summary

judgment, she argued:

On the issue of GWI as employer of Plaintiff, the paperwork is again

critical. Plaintiff filled out all of her new hire paperwork with GWI. She

completed her direct deposit form with GWI. She received and was tested

on GWI safety rules and ethics rules. She had to acknowledge a different

GWI rule of the day every day on the job. She was invited to participate in

the GWI employee stock purchase program. She received direct deposits

into her checking account from [Rail Link] and from GWI. She filled out

insurance forms specifically listing GWI as employer. In fact, even the

paperwork separating her from employment after the accident, specifically

advising her of the termination of her life insurance coverage, came from

GWI.

Dkt. 44, at 24-25.

The district court rejected Ms. Smith’s argument.

B. GWI’s employment relationship with Ms. Smith.

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Ms. Smith concedes that she was nominally employed by Rail Link, but asserts

that GWI was also her employer as far as FELA is concerned. She argues that (1) she

was simultaneously a servant for GWI and Rail Link; or (2) Rail Link was a servant of

GWI under common law employment principles.

The Supreme Court has made it clear that FELA applies not only to “nominal”

employers of an injured plaintiff, but also to “common-law” employers. Kelley, 419 U.S.

at 324. FELA’s requirement that a plaintiff’s injury take place while employed by a

common carrier compels the plaintiff to prove a master-servant relationship between the

plaintiff and the defendant railroad. Kelley, 419 U.S. at 323. In FELA cases, “the

question of employment, or master-servant status,” is “determined by reference to

common-law principles.” Id. This test of employment “turns on the degree of control the

[railroad] company exerts over the physical conduct of the worker in the performance of

services.” Schmidt v. Burlington N. and Santa Fe Ry., 605 F.3d 686, 689 (9th Cir. 2010)

(citing Kelley, 419 U.S. at 324). Thus Ms. Smith must prove that GWI controlled or had

the right to control the physical conduct of Rail Link’s employees at the site of the injury.

Ms. Smith presents the following evidence in an attempt to show that GWI

actually controlled or had the right to control her physical conduct:

 GWI issues safety, ethics, and administrative rules which Rail Link

employees are required to follow;

 GWI reviews and has the right to change all of Rail Link’s budget

submissions;

 GWI regularly issues employment correspondence to Rail Link employees;

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 GWI advised Ms. Smith about her ineligibility for life insurance due to her

time away from Rail Link;

 GWI sometimes made direct deposits of Ms. Smith’s paycheck into her

bank account;

 GWI listed itself as Ms. Smith’s employer on group life insurance

paperwork; and

 some of Rail Link’s executive officers also hold executive positions with

GWI.

Essentially, Ms. Smith contends that GWI has such substantial administrative control

over Rail Link — control which is enabled by its corporate ownership — that it has the

power to compel Rail Link employees to do whatever GWI pleases. For its part, GWI

asserts that it “does not control the day-to-day operations of any of its subsidiaries” and

that Ms. Smith “did not report to anyone at GWI.” Aplee. Br. at 3, 7.

Ms. Smith has offered substantial evidence that GWI exercised control over

administrative tasks. While this kind of administrative control could serve to enable

physical control over employees, in this case Ms. Smith has not shown any connection

between GWI’s bearing of some administrative burdens of Rail Link and control over

what Rail Link’s employees actually do in the field on a day-to-day basis.

The closest Ms. Smith comes to succeeding in such a showing is the admission by

a GWI executive officer, Andrew Chunko, that a Rail Link employee would follow his

orders. This is not particularly probative, however, because Mr. Chunko is also an

executive of Rail Link. Quite significantly, Mr. Chunko himself did not even know that

he was an officer of GWI. Mr. Chunko’s admission, then, only allows us to conclude that

14
a Rail Link employee would respond to the directive of a Rail Link executive officer who

also holds a title with Rail Link’s corporate parent, GWI.

In order to rule in Ms. Smith’s favor, we would need to look not at whether GWI

exercised physical control over Rail Link employees by GWI, but instead rely on

administrative management by GWI. But under Kelley, we may not do so. Ms. Smith

has offered no evidence to support an inference that GWI’s control over administrative

functions ever affected any physical conduct of Rail Link employees. For example, even

accepting as true the allegation that safety guidelines were issued by GWI, as we must,

there is no evidence that a violation of safety rules which happened to be promulgated by

GWI would result in discipline by anyone other than Rail Link at Rail Link

management’s sole discretion.

The concept of employment under FELA is a broad one, but to show an

employment relationship a plaintiff still must offer some evidence that physical conduct

was or could have been controlled by an alleged employer. The record here is lacking in

this regard, compelling a ruling in GWI’s favor.4

4

 Because we conclude that GWI was not Ms. Smith’s employer, we do not

address her additional argument that GWI is a common carrier subject to FELA liability.

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IV. Subject-Matter Jurisdiction

Before concluding, we must confront a potential jurisdictional problem which

presents itself in this case. Although neither party raised this concern below or on appeal,

it relates to subject-matter jurisdiction, so we address it sua sponte. 

Rail Link and GWI jointly moved for summary judgment in the district court. The

district court granted their motion and entered final judgment in the Defendants’ favor. 

However, if the plaintiff’s status as an “employee” of a “common carrier” is a

jurisdictional prerequisite to a FELA claim, the district court had no jurisdiction to enter a

final judgment in this tort action, and the proper course would have been dismissal.

In Sullivan v. Scoular Grain Co., 930 F.2d 798, 802-03 (10th Cir. 1991), we noted

that federal question jurisdiction exists so long as the essential elements of an FELA

claim — including the defendant’s common carrier and employer status — are alleged. 

However, neither party disputed the threshold question of federal subject matter

jurisdiction, and we accepted that view without meaningful discussion. Notably, we did

not explicitly analyze the “subject-matter jurisdiction/ingredient-of-claim-for-relief

dichotomy” (to borrow the terminology of the Supreme Court in Arbaugh v. Y&H Corp.,

546 U.S. 500, 511 (2006)). In light of the absence of discussion on the jurisdictional

question in Sullivan, and subsequent Supreme Court teachings on the point (e.g.,

Arbaugh), we might question the precedential value of Sullivan’s holding on this narrow

question.

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Nevertheless, because the FELA statute does not speak to these elements in

jurisdictional terms, we see no reason to disturb the implicit conclusion reached in

Sullivan.

5

 Accord Arbaugh, 546 U.S. at 511 (directing federal courts to focus on

provisions of a statute explicitly speaking in jurisdictional terms when distinguishing

between essential ingredients of a claim and jurisdictional requirements).6

 Accordingly,

5

 Although the Supreme Court has not directly addressed this question, it has

hinted that these elements are essential ingredients of a claim for relief under FELA rather

than prerequisites to the exercise of federal question jurisdiction. See CSX

Transportation, Inc. v. McBride, 131 S. Ct. 2630, 2644 (2011) (speaking to “limitations”

— as opposed to jurisdictional barriers — on “who may sue, and for what” when

referring to a defendant’s common carrier and employer status).

The Court has suggested that the requirement that an employee be engaged in

interstate commerce at the time of injury is a jurisdictional requirement. See Reed v.

Pennsylvania Rail Co., 351 U.S. 502, 508 (1956) (upholding district court’s exercise of

federal question jurisdiction over a FELA claim on the ground that the plaintiff’s

employment duties were in furtherance of interstate commerce operations of a defendant

who was undisputedly a common carrier employer). But it is logical to distinguish the

“interstate commerce” element from the “common carrier” and “employer” elements

given that the former justifies Congress legislating in this field in the first place under the

Constitution’s Commerce Clause, while the latter are requirements that Congress chose to

impose separate from establishing its power to legislate.

In this case, there is no dispute whether Ms. Smith was furthering interstate

commerce when she was injured — she was facilitating the loading of coal that will

eventually be distributed around the country.

6

 We recognize that holdings from other circuits suggest that these requirements

are jurisdictional in nature. See Williamson v. Consolidated Rail Corp., 926 F.2d 1344,

1346 (3d Cir. 1991) (affirming district court’s dismissal for lack of subject-matter

jurisdiction where the case was brought under FELA and the trial court concluded that the

defendant was not the plaintiff’s employer as a matter of law); Mickler v. Nimishillen &

Tuscarawas Railway Co., 13 F.3d 184 (6th Cir. 1993) (“The sole basis for federal

jurisdiction in this case is FELA. Because defendant is not a common carrier and FELA

does not apply, there is no federal question.”); Aho v. Erie Mining Co., 466 F.2d 539 (8th

Cir. 1972) (affirming district court’s determination that jurisdiction was lacking where

defendant in a FELA action was not a common carrier).

(continued...)

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consistent with Sullivan, we conclude that the district court had subject matter jurisdiction

to hear this case, and thus had the power to enter final judgment.

* * *

In sum, the judgment entered by the district court is AFFIRMED.

6

(...continued)

While there is substantial authority from our sibling circuits suggesting a

conclusion different from the one we reaffirm today, we think that Sullivan’s holding

better accords with the Supreme Court’s most recent teachings on the difference between

essential elements of a claim (which are not jurisdictional) and jurisdictional

requirements. Accordingly, we do not disturb it.

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