Rogers v. Consolidated Rail Corp.

• Decision Date: 05 November 1991
• Docket Number: No. 162,D,162
• Citation: 948 F.2d 858
• Parties: Peter J. ROGERS and Karen Rogers, Plaintiffs-Appellees, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant. ocket 91-7440.
• Court: U.S. Court of Appeals — Second Circuit

Page 858

948 F.2d 858

60 USLW 2339

Peter J. ROGERS and Karen Rogers, Plaintiffs-Appellees, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant.

No. 162, Docket 91-7440.

United States Court of Appeals Second Circuit.

Argued Sept. 11, 1991.

Decided Nov. 5, 1991.

Scott A. Barbour (McNamee, Lochner, Titus and Williams, P.C., Albany, N.Y., of counsel), for defendant-appellant.

Ira M. Maurer (Elkind, Flynn & Maurer, P.C., New York City, of counsel), for plaintiffs-appellees.

Before KEARSE, MINER and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Consolidated Rail Corp. ("Conrail") appeals from an order of the United States District Court for the Northern District of New York, Cholakis, Judge, denying its motion for summary judgment dismissing plaintiffs' claims under New York's Workers' Compensation Law ("WCL"). The district court adhered to its prior ruling, which had denied Conrail's motion under Fed.R.Civ.P. 12(b)(1) and (6) to dismiss the same claims. ¹ Conrail contends that state-law damage claims for injuries sustained extraterritorially are preempted by the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. (1982). We disagree and therefore affirm.

BACKGROUND

Plaintiff Peter Rogers, a New York resident, worked for defendant Conrail as a freight conductor. He worked out of Conrail's Massena, New York facility. On July 25, 1986, Rogers was travelling on a Conrail train from the Massena Yard to Valleyfield, Quebec, Canada when he fell off the train just outside Valleyfield, Quebec. Rogers sustained back injuries and he alleges that the fall was caused by Conrail's failure to maintain safe working conditions and by its negligent supervision of its trainmaster.

On September 23, 1986, the Rogers (husband and wife) filed their complaint in the district court, asserting claims under both FELA and the WCL. Conrail moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Judge Cholakis granted the motion with respect to the FELA claim, holding that the statute did not provide a remedy for injuries sustained abroad. See 688 F.Supp. at 836 (citing Lauritzen v. Larsen, 345 U.S. 571, 581, 73 S.Ct. 921, 927-28, 97 L.Ed. 1254 (1952)). However, he denied the motion with respect to the Rogers' claims under the WCL, rejecting Conrail's assertion that FELA preempted them. After discovery was taken, Conrail renewed its objections in a summary judgment motion, ² again arguing that FELA preempted the Rogers' state-law claims.

Judge Cholakis denied Conrail's summary judgment motion. He certified Conrail's interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and we granted Conrail's petition for permission to appeal pursuant to Fed.R.App.P. 5(a). Because we agree that FELA does not have extraterritorial effect and therefore does not preempt state-law remedies for injuries sustained beyond United States borders, we now affirm the district court's order.

DISCUSSION

The dispositive issue on appeal is narrow: does FELA preempt all state-law claims by railway employees for injuries sustained extraterritorially? If so, then a New York resident has no claim under the WCL even when, as here, FELA affords no remedy. If not, then he may sue under the WCL.

We start from the proposition that "[p]re-emption of state law by federal statute or regulation is not favored 'in the absence of persuasive reasons--either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.' " Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963)). This presumption against preemption is particularly apt when, as here, the state law said to be preempted is within the states' traditional police powers. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978); Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 144 (2d Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989).

Congress may preempt state law in several ways:

First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. Second, even in the absence of express pre-emptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the States must leave all regulatory activity in that area to the Federal Government. Finally, if Congress has not displaced state regulation entirely, it may nonetheless pre-empt state law to the extent that the state law actually conflicts with federal law.

Michigan Canners & Freezers Ass'n, Inc. v. Agricultural Mktg. & Bargaining Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 2522-23, 81 L.Ed.2d 399 (1984) (citations omitted).

It is now well-settled that Congress explicitly directed that FELA wholly preempt state-law remedies for railway employees injured in the course of employment when any part of that employment furthers interstate commerce. See New York Cent. R.R. Co. v. Winfield, 244 U.S. 147, 151-52, 37 S.Ct. 546, 548, 61 L.Ed. 1045 (1917); see also H.R.Rep. No. 1386, 60th Cong., 1st Sess. 3 (1908) (FELA "will supplant the numerous State statutes on the subject so far as they relate to interstate commerce"). Thus, if FELA applies to the Rogers' state-law claims, it preempts them. Our task, therefore, is to ascertain whether FELA governs actions by railway employees injured beyond United States borders. Because it is undisputed that FELA fails to provide a remedy for injuries suffered outside the United States, see Lauritzen, 345 U.S. at 581, 73 S.Ct. at 927-28, a holding that the statute nevertheless preempts state-law remedies would obviously leave the Rogers without any redress under United States law. In short, we must determine whether Congress intended that American railway employees injured extraterritorially should be denied relief under our law. ³

In this case of first impression the FELA statute itself is singularly unenlightening. Supreme Court precedent is also sparse, although it is clear that FELA does not itself provide a remedy for extraterritorial injuries. See New York Cent. R.R. Co. v. Chisholm, 268 U.S. 29, 31, 45 S.Ct. 402, 402, 69 L.Ed. 828 (1925); Boak v. Consolidated Rail Corp., 850 F.2d 110, 111 (2d Cir.1988) (per curiam). The cases, however, do not articulate whether this is so because the statute simply does not apply extraterritorially or because Congress meant FELA to apply beyond American borders but not to provide redress for injuries sustained abroad. In choosing between these conflicting rationales, we must decide "which choice is it the more likely that Congress would have made?" Burnet v. Guggenheim, 288 U.S. 280, 285, 53 S.Ct. 369, 370-71, 77 L.Ed. 748 (1933) (Cardozo, J.).

When divining congressional intent, we are mindful of Justice Frankfurter's counsel that "[l]egislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 538-39 (1947). An examination of FELA's legislative genesis is informative. See FDIC v. Tremaine, 133 F.2d 827, 830 (2d Cir.1943) (L. Hand, J.) ("[t]here is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed").

The explosive development of a national railway system in the nineteenth century was one of the cornerstones of this country's economic revolution. See generally G. Kalko, Railroads and Regulation: 1877-1916, at 1-5 (1965). The railroad's integral role in industrialization, however, came at great expense; thousands of railway workers were killed or maimed toiling on these machines of modernization. See Johnson v. Southern Pac. Co., 196 U.S. 1, 19-20, 25 S.Ct. 158, 162-63, 49 L.Ed. 363 (1904); Griffith, The Vindication of a National Public Policy Under [FELA], 18 Law & Contemp.Probs. 160, 162-66 (1953); see also S.Rep. No. 460, 60th Cong., 1st Sess. 3 (1908) ("Everybody understands that our railway workmen do their work in the constant presence of danger, where a single misstep is often fatal."). In 1889, President Harrison bemoaned this situation, telling Congress " '[i]t is a reproach to our civilization that any class of American workmen, should, in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in time of war.' " Griffith, supra, at 162 (quoting Johnson, 196 U.S. at 19, 25 S.Ct. at 162).

That railway workers were so often subject to death and disfigurement was only part of this tragic situation. Those who survived debilitating injuries were often denied redress in our nation's courts because of hoary common law rules, like the fellow-servant doctrine, ill-suited to the plight of railway laborers. See Winfield, 244 U.S. at 164, 37 S.Ct. at 553-54 (Brandeis, J., dissenting); S.Rep. No. 661, 76th Cong., 1st Sess. 4 (1939) ("such simple doctrines do not apply equitably under the infinite complexities of modern industrial practices").

Against this historical backdrop, Congress began to regulate railway safety. In 1893, it enacted the Federal Safety Appliance Act, requiring various safety devices on all railroad cars. See 27 Stat. 531 (1893) (codified as amended at 45 U.S.C. §§ 1-16); see also Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 486, 63 S.Ct. 347, 351, 87 L.Ed. 411 (1943) (Safety Appliance Act "is to be liberally construed in the light of its prime purpose, the protection of employees and others by requiring the use of safe equipment"). Two years later, a version of FELA was introduced in Congress. The bill ultimately elicited the support of President Roosevelt and became the original Federal Employers'...