KELLEY v. SOUTHERN PACIFIC CO.

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Argument of R. Jay Engel

Chief Justice Warren E. Burger: We'll here arguments next in Kelley against the Southern Pacific Railroad, number 1270.

Mr. Engel, you may proceed whenever you're ready.

Mr. R. Jay Engel: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

Ostensibly the issue that is appearing before Your Honors is whether this Court should set new guidelines for determining employee status under the FELA or the Federal Employers' Liability Act.

Southern Pacific Company was successful in maintaining in the Ninth Circuit that the District Court had applied a new legal theory in creating employee status under the FELA.

This new legal theory purportedly comes from the Fourth Circuit in a case called Smith versus Norfolk.

Petitioner not only disagrees with Southern Pacific's contention as to what the theory or legal theory is that is set forth in Smith, but further petitioner believes that there is a threshold issue here that is not been briefed nor argued either by the Ninth Circuit nor by Southern Pacific Company.

Contrary to Southern Pacific Company's analysis, both the trial court, the District Court and both parties recognized that a factual question was being submitted and that the Court was going to render a factual conclusion as opposed to a legal conclusion because the Ninth Circuit did not consider this issue and did not consider whether or not the trial court or District Court was in fact rendering a factual conclusion.

The Ninth Circuit simply ignored the issues with regard to the limitations on its appellate review power in a appellate court or a Circuit Court reviewing a factual determination by the District Court.

I suggest that what's at the heart of this matter is that the Ninth Circuit desires to have this Court postulate a new theory, a new theory with regard to a determining employee status.

And to accomplish this, what the Ninth Circuit did is, it selected a single fact or finding by the District Court and it singled out a single authority that was relied on by the trial court or the Ninth Circuit and then ignored all the other findings, and it ignored all the other authorities that were relied on by the District Court.

Now the reason I suggest that this Court is before or this case is before this Court is that the Ninth Circuit fail to recognized its -- the factual consideration was rendered by the District Court and that the Ninth Circuit's appropriate appellate review power was to deal with it as a factual conclusion and to uphold the District Court's decision.

The Tenth Circuit in a very similar type of case, the Missouri Kansas versus Hearson harmonized and set forth both the Smith decision and the Ninth Circuit decisions as authority for a single proposition.

The Tenth Circuit had no problem at all recognizing that Smith versus Norfolk did not set forth a new legal theory.

And I suggest to this Court that the analysis that the Tenth Circuit may in the Missouri-Kansas versus Hearson decision is a correct analysis of the Smith decision and is the same analysis that the District Court made in the case at bar.

The result of the Ninth Circuit's decision in this matter is that it is the only appellate decision which has overturned a District Court's factual conclusion as to what constitutes an employee under the FELA.

Their decisions both ways in the District Courts, where District Courts have rendered conclusions that a person was not an employee and there are decisions where the District Court has concluded that a person employed by an independent contractor was an employee.

And the Ninth Circuit review is the only decision where those type of preliminary factual conclusions were made by District Court has been overturned.

Justice Lewis F. Powell: Mr. Engel?

Mr. R. Jay Engel: Yes.

Justice Lewis F. Powell: I'm puzzled by this sentence at the bottom of page 11 of your petition in page 11?

Mr. R. Jay Engel: Yes.

Justice Lewis F. Powell: You state that the Court of Appeals by ruling directed to the contrary without supporting authority intentionally created a conflict in Court of Appeals' decisions.

Are you suggesting that CA9 did not decide this case in good faith and exercise of it judicial digression, merely for the purpose of creating a conflict?

Mr. R. Jay Engel: No, Your Honor.

That would not be my intent in making that decision.

I recognize that that is rather a strong statement and certainly could be interpreted in the [Attempt to Laughter] manner that, Your Honor is suggesting.

I think that court was trying in all good faith to render a very appropriate decision.

But I think that what the Court did come up with was an obvious conflict in the decision -- in the circuits when in fact, the issue that was presented to the Ninth Circuit was whether a factual determination had been made by the District Court.

So then when I say, they intentionally made a conflict, what I'm suggesting is that they were aware that they were creating a conflict and that that did not cause them -- it did not cause him to follow the Fourth Circuit is what it amounted to.

Justice Potter Stewart: They explicitly disagreed with the Fourth Circuit?

Mr. R. Jay Engel: Yes.

Justice Potter Stewart: That's what you --

Mr. R. Jay Engel: Well --

Justice Potter Stewart: And consciously and deliberately --

Mr. R. Jay Engel: Well, actually what I'm saying is that they misinterpreted the Fourth Circuit.

They thought they were creating a conflict.

The Fourth Circuit decision in Smith versus Norfolk as the Tenth Circuit has recognized is not a new legal theory.

It is consistent with all the other circuits.

Justice Potter Stewart: Your theory is that the question in each case is a factual question is the plaintiff an employee of the railroad --

Mr. R. Jay Engel: Yes.

And all the circuits agreed with that.

Justice Potter Stewart: And that there's not a conflict in law?

Mr. R. Jay Engel: No, Your Honor.

And I think that the reasoning that the Tenth Circuit made in that regard in citing the cases in the Ninth Circuit as well as Fourth Circuit harmonizes the -- all the circuits into one consistent viewpoint, and that is that we have a factual determination to be made by the trial court along the guidelines of the restatement Section 220 and that the District Court in this matter, that is precisely what it attempted to do.

Justice William H. Rehnquist: Well, if that's the case, is this an appropriate case for us to grant plenary review, and if there really isn't the kind of conflict that I got the impression that was from your petition?

Mr. R. Jay Engel: Well, the Ninth Circuit decision as its stand now creates a conflict because they misinterpreted or misread in my judgment the Fourth Circuit opinion.

In other words, they have placed a legal interpretation on the Fourth Circuit's opinion and they are saying in the Ninth Circuit that we are ruling to the contrary so there is a conflict.

But I'm suggesting that when you go under the surface of it and examine the Fourth Circuit decision, it is not in conflict with any the other circuits.

And the only decision now that is in conflict with the other circuits is the Ninth Circuit decision in the case at Bar because it is the only appellate decision that is overturned a District Court's factual conclusion on employee status.

Justice Harry A. Blackmun: Mr. Engel, I take that you are supporting then the findings and conclusions that Judge Zirpoli made?

Mr. R. Jay Engel: Yes, Your Honor.

Justice Harry A. Blackmun: And what about this language in his conclusion that this -- the work being performed by Mr. Kelley involved a non-delegable duty of the Southern Pacific?

Are you supporting that also?

Mr. R. Jay Engel: Yes, Your Honor.

That finding -- but it provides or how I read it is that the Court was concluding that it was the nature of the work that the plaintiff was performing that brought him within the coverage of the FELA, that the plaintiff was doing a non-delegable duty or a -- and was performing work in the services of the railroad which is the definition that the Restatement uses for determining who an employee belongs to at the time of a particular act.

And the trial court here, the District Court was concluding that the plaintiff was fulfilling work of Southern Pacific Company and it was because of that, that the plaintiff was entitled to the coverage of the Federal Employers' Liability Act.

Justice Harry A. Blackmun: You don't think that that is the -- the pivot the Ninth Circuit's disagreement and disaffection with District Courts?

Mr. R. Jay Engel: Well, with the Ninth -- with the Ninth Circuit --

Justice Harry A. Blackmun: Perhaps you drew this, did you?

Mr. R. Jay Engel: No, Your Honor.

I drew -- I propose some.

The Court changed a number of them.

Most of mine were broken down more singularly and it combined its findings and made it a shorter set of findings.

What did Ninth Circuit did, it did not comment on that finding, Your Honor.

The Ninth Circuit picked out the fourth conclusion of fact or finding a fact by the District Court where the court concluded that Pacific Motor Trucking Company was an agent of Southern Pacific Company.

But the Ninth Circuit ignored the finding number 9 which concluded as a factual basis that the type of work that the plaintiff was doing brought him within the FELA.

In other words, the Ninth Circuit concluded it said, “The District Court found that Pacific Motor Trucking Company was an agent of Southern Pacific Company, and therefore, there was FELA coverage.

” That is not what the finding show.

The finding with regard to the agency for the trucking company is in number 4, but the finding that the Court used to support the FELA coverage is number 9, where it says, “the plaintiff was fulfilling a non-delegable duty at the defendant Southern Pacific Company which brought the plaintiff within the traditional agency relationship and in such a relationship to the defendant Southern Pacific Company.”

Justice Harry A. Blackmun: Well, the Ninth Circuit certainly referred to that non-delegable language?

Mr. R. Jay Engel: Yes.

Justice Lewis F. Powell: Mr. Engel?

Mr. R. Jay Engel: Yes.

Justice Lewis F. Powell: I have not checked these other cases you mentioned.

Do you happen to recall how many of them involved jury verdicts with respect to the status of employee? Here, you had no jury.

You had a district judge who made certain findings, some of which perhaps arguably, at least mixed findings of law and fact.

But my question is, in the cases on which you rely were the jury verdict or decisions by district judges?

Mr. R. Jay Engel: Well, there are combinations Your Honor.

Some of them are motions for summary judgment that went up on appeal which of course were decided by a Court or a judge and some of them are jury conclusions at the time of trial.

I don't know of another case dealing either with FELA law or I couldn't find another case where you had a situation where the parties agreed to waive a jury as to the limited issue and submitted that factual question to the court for determination as we did here.

We were then going to proceed with the question of negligence and damages to a jury.

But it was well understood at the time of trial that this limited issue was -- we're waiting a jury as to that one limited factual question and that factual question was going to be decided by the Court.

Justice Lewis F. Powell: May I ask while I interrupted you, whether it is permissible under California law or under the Federal Act for an injured employee to receive both workman's compensation benefits or and FELA benefits?

Mr. R. Jay Engel: Yes, Your Honor.

There are, in fact, there -- I should have cited it to the Court.

There is a decision where that issue was raised in an FELA situation, and I'm -- well, I'm not that confident about the Court nor the ruling, my recollection was that the court concluded, I think it was a Circuit Court that because somebody had applied for workman's compensation benefits that that was not a factor in determining whether or not he was entitled to FELA coverage.

Justice Lewis F. Powell: Would he be entitled to retain both benefits?

Mr. R. Jay Engel: Well, while this is not within the preview of this appeal, I would anticipate that in any event this Court rules in favor of petitioner that what will happen is Southern Pacific will then stop the workman's compensation benefits and we will litigate that issue as to whether or not, that's appropriate or not.

Justice Harry A. Blackmun: I thought the workman's compensation came from Pacific?

Mr. R. Jay Engel: Well --

Justice Harry A. Blackmun: Granted it's wholly on so, but it's --

Mr. R. Jay Engel: I'm sorry.

I used them interchangeably.

I -- it is.

I'm suggesting that Pacific Motor Trucking Company will stop the workman's compensation benefits, and we will then litigate that issue.

Chief Justice Warren E. Burger: Because no right of subrogation?

Mr. R. Jay Engel: There is not in this case.

No, Your Honor.

Justice William J. Brennan: But would there be a right of what, a credit to any against any --

Mr. R. Jay Engel: Well, I think it's going to be complex Your Honor because that is a state right under state statute, and the rights under the FELA are not state oriented by federal oriented, and the question --

Justice William J. Brennan: Well, I'm mere;y asking whether there be a double recovery here and I take that this is what Justice Powell is concerned about?

Mr. R. Jay Engel: Yes.

Well, I beg your pardon Your Honor.

I'd, of course, I'd like to say to you because in a no double recoveries are not something that it desired by any Court that know that won't happen.

But I to be perfectly candid with Your Honor, I anticipate that when Pacific Motor Trucking Company stops the payments, that I would go to the law books and see what I can do for Mr. Kelley to see if he is not entitled to both.

But I can't tell Your Honor what I would anticipate the result of that would be.

Chief Justice Warren E. Burger: Would you agree that the District Court was in its mixed finding about the non-delegable duty holding that a railroad cannot under any circumstances engage an independent contractor, totally unrelated to it.

Unlike Pacific, totally unrelated and thereby avoid FELA responsibility?

Is that the impact to his holding?

Mr. R. Jay Engel: Well, the impact that I find in that finding is that he was characterizing the work that was being done by Mr. Kelley as being performing in the services of the railroad.

I don't think that his finding goes so far as to say that any time, an individual is performing a certain type of work that they are necessarily an employee “within the FELA.

” In other words, each would still have to be determined on the facts and I don't think there's anything in the Smith case nor in the District Court's decision here, where that you could anticipate that every time, an individual who fell from a tri-level railroad car would necessarily be entitled to FELA coverage.

It would be determined factually in that given case at that given time.

Chief Justice Warren E. Burger: Well, you said every person, I'll Limit that to a person who is unloading the car?

Mr. R. Jay Engel: Yes.

Chief Justice Warren E. Burger: Hasn't the district judge said that, unloading is a function of the common carrier of the railroad and can't be passed on anybody else?

Mr. R. Jay Engel: No, I don't think so Your Honor.

I think that in this particular case, he found that to be true.

There were some particular facts in this given case which in my opinion caused him to come to that conclusion.

There was difference of opinion in the briefs with regard for example, whether this work was within the tariff of the railroad.

The work of unloading, the tri-level railroad car doesn't necessarily have to be within the tariff for the railroad.

It was in this particular case.

Justice William J. Brennan: The fact finding what happen?

Mr. R. Jay Engel: Yes -- no but no yes.

In this case --

Justice William J. Brennan: By finding for it?

Mr. R. Jay Engel: No, what I'm saying in this case that is true, but it doesn't necessarily have to be in the next person who is working on a tri-level railroad car and falls off.

In that instance, the railroad may not have within its tariff the unloading of the automobiles, that would be a significant fact that would be different.

So that there are differences in fact in each case and I think what the District Court did here is that in this particular case, he concluded that Southern Pacific Company in this particular case had a non-delegable duty.

Justice William J. Brennan: But I notice that Court of Appeals did cite Sinkler.

Is there any relevance here?

Mr. R. Jay Engel: Well, Sinkler was a case involving determination of the defendant class as opposed to the plaintiff class.

I think it has application in that both in Sinkler where they were determining the defendant class, in other words, who are the employers that can sued?

Justice William J. Brennan: Well, you had an independent employer there as you do here?

Mr. R. Jay Engel: Yes.

Justice William J. Brennan: There it was Belt railroad --

Mr. R. Jay Engel: Yes.

Justice William J. Brennan: And it was performing what we characterized as an operational activity --

Mr. R. Jay Engel: Yes.

Justice William J. Brennan: -- of the respondent railroad which was sued. Well, in light of finding [Inaudible] this situation?

Mr. R. Jay Engel: Well, because Sinkler dealt with in determining the defendant.

In other words, it was the defendant and employer who could be sued.

In our instance, we're talking about is the injured party an employee that can sue an employer, an identified employer, but they are very similar in that both cases, both the Baker --

Justice William J. Brennan: And there we held -- that's right.

There, the award was to an employee of this plaintiff -- of this defendant railroad by reason of the negligence of Belt railroad?

Mr. R. Jay Engel: That's right.

Justice William J. Brennan: I see and in this instance, what we have is a negligence of his employer?

Mr. R. Jay Engel: Correct.

Justice William J. Brennan: Right.

That is --

Mr. R. Jay Engel: We're going back the other way.

Justice William J. Brennan: Yes.

Mr. R. Jay Engel: And but there is a similarity in that both cases turn on.

What was the nature of the work that the party involved was doing at the time?

That determine --

Justice William J. Brennan: Whether it was part of the operational activities of the respondent railroad?

Mr. R. Jay Engel: Yes.

Justice William J. Brennan: And I would suppose that for finding for here, it doesn't seem to have been challenged in the Court of Appeals saying that, what was done here was in the regular course of its business, that is of a Southern Pacific, pursuant to its contractual responsibilities to the shipper and its tariff response.

Mr. R. Jay Engel: Correct.

Justice William J. Brennan: So that in any event, the operation was within the operational activities of Southern Pacific?

Mr. R. Jay Engel: Let's say it was so found.

Justice William J. Brennan: I think we [Inaudible] with that finding.

Mr. R. Jay Engel: Yes, Your Honor.

Chief Justice Warren E. Burger: In other words, having been paid for it for the unloading operation Southern Pacific would not be heard by the district judge to say that wasn't part of their employment?

Mr. R. Jay Engel: That's correct.

And there was some dispute to that the time of trial and in the briefs as to whether or not that tariff was actually covered the unloading operation and Your Honors, will note that we have attached a copy to our brief of the interrogatory where we had taken the deposition of one of the S.P. superiors who said that he thought it was an alternative tariff situation that some shippers could and some shippers would not be charged that tariff.

But in fact, when an interrogatory was submitted to Southern Pacific Company, they specified that employee was inaccurate and that all railroad tri-level automobile carriers at that time, the tariff included the unloading operation.

Chief Justice Warren E. Burger: What page is that on in your -- I take it, it's in the appendix.

Mr. R. Jay Engel: The appendix, yes Your Honor.

That's pages Roman numeral XII through XV.

The question is -- begins at XII and the answer is on XV, Roman numeral XV at the end.

Chief Justice Warren E. Burger: And now, unless I don't read my Roman numerals correct, I haven't got that many pages in your appendix at least to your brief.

Mr. R. Jay Engel: Oh, I'm sorry.

I'm speaking the petitioner.

Chief Justice Warren E. Burger: Well, --

Mr. R. Jay Engel: I do believe it's attached to the brief Your Honor.

I do have an attached to the petition there.

Chief Justice Warren E. Burger: Yes.

Mr. R. Jay Engel: In the absence of any further --

Justice William J. Brennan: May I just to ask you Mr. Engel, suppose this employer had not been wholly owned by Southern Pacific?

Mr. R. Jay Engel: I don't' that would make difference.

Justice William J. Brennan: Make any difference.

Mr. R. Jay Engel: No.

Justice William J. Brennan: So, it all has to turn on the fact that the -- that this employer, he was performing in the central operational activity of the railroad?

Mr. R. Jay Engel: Well, this particular individual.

In other words, rather than the employer, in other words, just because Pacific Motor Trucking --

Justice William J. Brennan: Right.

He is doing the unloading?

Mr. R. Jay Engel: Right.

He was doing a particular act and that particular act because of the nature of that act was with -- was actually performing the services of Southern Pacific Company and consequently, he is entitled to FELA coverage.

Justice William J. Brennan: So, I take it if you were right, an engine that broke down and instead of one of the Southern Pacific's mechanics repairing it, Southern Pacific had hired a plumbing company and a plumber employed by that company came and repaired the boiler or the locomotive and was injured in the process.

He would say, he could recover against Southern Pacific?

Mr. R. Jay Engel: I would say he could, but not necessarily.

In other words, I don't think any of these cases turn in one particular --

Justice William J. Brennan: But a fact finding could have been made.

Mr. R. Jay Engel: Yes, and --

Justice William J. Brennan: That it was for that purposes and an employee of the railroad?

Mr. R. Jay Engel: Correct.

But the respondents here want to --

Justice William J. Brennan: What cases that we had that approach that in this Court, any?

Mr. R. Jay Engel: Well, there's one that's very similar to that, where Westinghouse sold an engine to a railroad and the --

Justice William J. Brennan: Which one is that?

I thought I knew these cases?

Justice Byron R. White: The Court of Appeals thought it was whole -- your approach would be wholly inconsistent with the case of this Court?

Mr. R. Jay Engel: The Ninth Circuit did.

Justice Byron R. White: Federal?

Mr. R. Jay Engel: Yes.

I recognize that, Your Honor.

I disagree profusely with the Ninth Circuit's conclusion.

Justice Potter Stewart: Well, and you have another Court of Appeals pretty much on your side --

Mr. R. Jay Engel: Yes.

Justice Potter Stewart: The Fourth Circuit.

Mr. R. Jay Engel: And the Ninth Circuit is saying that Fourth Circuit created a new theory and we're saying that that's not accurate, and the evidence of that is the Tenth Circuit harmonized both districts didn't have any problems.

Justice Harry A. Blackmun: Well you certainly are relying on more than one factor as I think you just suggested here?

Mr. R. Jay Engel: Yes.

Justice Harry A. Blackmun: Including among other things, the longevity on the job of Mr. Kelley --

Mr. R. Jay Engel: Correct.

Justice Harry A. Blackmun: -- for doing this kind of thing over a long period?

Mr. R. Jay Engel: He was also injured while he was just getting the automobile's prepared to load.

He wasn't -- they didn't even started actually driving the automobiles off the railroad car.

The process, where he has injured was going along and unhooking the chains underneath so that and each of these facts can be important, and I think it would under the Baker decision, the test is that District Court at that particular time weighing all of these facts what conclusion they come up with.

Justice Harry A. Blackmun: Well, I take it you are relying specifically on Baker, are you not?

Mr. R. Jay Engel: Yes.

Your Honor, the citation that I referred to is Bryne versus Pennsylvania Railroad Company.

Justice William J. Brennan: Yes.

Chief Justice Warren E. Burger: You got the cite of that right in front you?

Mr. R. Jay Engel: Yes, it's 262 F. 2d 906.

Justice William J. Brennan: Not in this Court?

Mr. R. Jay Engel: No.

It was -- certiorari was denied here but it's a Circuit opinion.

Justice William J. Brennan: Third Circuit?

Mr. R. Jay Engel: And I've asked that few minutes could be saved to I think for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Corrigan?

Argument of John J. Corrigan

Mr. John J. Corrigan: Mr. Chief Justice and may it please the Court.

As I perceive the issue in this case, it is shall the FELA law be extended to include persons other than employees of railroad.

All of the cases cited by all of the parties save and except one, make a finding of employment by a railroad, whether its through a borrowed-servant doctrine, a joint-servant doctrine, an alter ego doctrine or some doctrine, they all make a finding of employment.

Counsel says that the Tenth Circuit harmonizes the Ninth Circuit and the Fourth Circuit.

The Tenth Circuit case he has in mind is Hearson versus the K-T Railroad.

It's cited in the briefs in it's 422 F. 2d.

The Court finds in Hearson, Hearson was an employee of the K-T.

In other words, the K-T sold its car cleaning facilities to try to avoid the consequences of the act.

But they kept control over Mr. Hearson and the Court says it doesn't matter whether he sweeps from the right or the left.

The point is the railroad still maintained the necessary control and because they did that, Mr. Hearson continued to be an employee.

Now, he also relies and he just cited that a Circuit Court case, Byrne versus Pennsylvania Railroad.

There, you had Westinghouse engineer whose job it was to service sophisticated locomotives after they were sold to the company, the railroad company, and he came on the railroad property, and he worked on these locomotives.

And he came under the control of the railroad and that case held, he was a joint employee.

There was a conventional common law employment relationship that developed which was not developed in the case.

Justice William J. Brennan: You mean under the control in the sense that --

Mr. John J. Corrigan: Yes, sir.

Justice William J. Brennan: -- that everything he did was directed and supervised under --

Mr. John J. Corrigan: He work there for --

Justice William J. Brennan: -- and planned out and laid out for him by the railroad?

Mr. John J. Corrigan: That was the finding sir.

The conventional finding of employment which is not in this case, and the case that's relied upon, and it's from the Fourth Circuit is unique and it's different in that it is the only case that does not find employment.

Now --

Justice Potter Stewart: I missed the Tenth Circuit citation, is it Hearson --

Mr. John J. Corrigan: It's Hearson, H-e-a-r-s-o-n versus Missouri-Kansas --

Justice Potter Stewart: Well, I don't find it in the briefs, in the table of authority cited.

Mr. John J. Corrigan: It's in counsel's brief I believe in one of his briefs.

Justice Potter Stewart: Well, I don't find it in the --

Mr. John J. Corrigan: It's 422 F. 2d, 1037.

Justice Potter Stewart: 1037.

Mr. John J. Corrigan: 422 F. 2d, 1037.

Justice Byron R. White: Is there a Texas Railway against Hearson?

Mr. John J. Corrigan: It's Texas Railway against Hearson.

Justice Byron R. White: Cited at page 29 in the petitioner's brief --

Mr. John J. Corrigan: And I -- It's M K-T versus Hearson.

Justice Byron R. White: Missouri, Missouri --

Justice Potter Stewart: And I say Missouri --

Mr. John J. Corrigan: I believe so.

Justice Potter Stewart: I have it.

Mr. John J. Corrigan: I'd like to point one --

Justice Harry A. Blackmun: Mr. Corrigan, excuse me, are you saying that there are no elements of control in here as to Mr. Kelley's --

Mr. John J. Corrigan: Right.

I'd like to point out --

Justice Harry A. Blackmun: I thought there where some aspects of evidence that he was subject to direction of S.P. employees.

Is my impression incorrect?

Mr. John J. Corrigan: If we may, we'll go to the point.

Counsel says, “This is a case where the appellate court sought to change the findings to reevaluate them, to interpret them.

” They didn't.

The opinion of the Ninth Circuit begins and ends with the findings of the District Court.

The District Court found that Mr. Kelley was an employee.

He was in the employment of the PMT.

He was --

Justice William J. Brennan: What about findings this -- finding 8 Mr. Corrigan?

Mr. John J. Corrigan: That finding --

Justice William J. Brennan: 8 to sub page 29.

The responsibility for immediate supervision and so forth was that of Southern Pacific, even though they exercise or almost executed by employers of Pacific.

Mr. John J. Corrigan: Yes.

He was -- the exercise of control was that of the Pacific Motor Trucking Company in his root --

Justice William J. Brennan: I'm sorry.

As I read it, he says the responsibility for immediate supervision and the control of the unloading operations for Southern Pacific, even though they exercise thereof, meaning, of the supervision and control was executed by employees of Pacific.

Mr. John J. Corrigan: Yeah.

The responsibility serve, but it doesn't say the control was in the Southern Pacific sir.

It does not say the right of control was in the Southern Pacific.

Justice Byron R. White: But why doesn't it -- I do not understand that your responsibility was there, doesn't mean also the right was there?

Mr. John J. Corrigan: No.

Could I explain why?

Justice Byron R. White: I wish you would.

Mr. John J. Corrigan: Alright, sir.

The railroad in the 20th century became -- become a very sophisticated operation.

We have, for example, computers that help run the transportation system.

We have sophisticated telephone systems.

We don't have the where with all of the knowledge to run these computers, but we have the responsibility to see that they run so the railroad could continue running.

Does that makes all the IBM employees who come in and fix those computers, railroad employees for the purposes of the FELA?

Does that make all the telephone company employees for the purpose of the FELA?

These are employees of another company.

And counsel acknowledged it wouldn't make any difference whether we're talking about a subsidiary company or some other company?

There are many things in the railroad enterprise that have to be done by others.

Chief Justice Warren E. Burger: Well, to take you hypothetical, I suppose it's possible that Judge Zirpoli would have found that those -- would not found it those were non-delegable duties.

And he would not have found as he did here on page 29 that the responsibility or immediate supervision and control of the maintenance of the electronic computer system was is --

Mr. John J. Corrigan: We have a responsibility in control Mr. Chief Justice to see that the job got done, that was to see that railroad cars got -- became unloaded under the tariff.

But there's a difference, it seems to me between responsibility to see that the result gets -- becomes fact, and having control or the right of control.

You can hire an independent contractor and that doesn't get you the right of control.

We don't have the right of controlling those IBM employees when they come into fix our computers.

I'd like to touch on --

Justice Byron R. White: Well, there's something in your favor that district judge carefully avoided in so many words finding that this gentleman was an employee of the Southern Pacific?

Mr. John J. Corrigan: The best thing in this case is the findings of the district judge for the Southern Pacific Company.

He rejected the proposed findings of the petitioner because the petitioner requested a finding that the Southern Pacific was an employer.

The district judge knew he could not make that finding because the evidence wouldn't support it.

He there found -- fore found that employment was in the Southern Pacific Company.

The scope of coverage of an FELA case --

Justice Byron R. White: Wait a minute, he found what?

Mr. John J. Corrigan: He therefore --

Justice William J. Brennan: You misspoke yourself.

Mr. John J. Corrigan: I misspoke myself.

I'm very sorry.

He therefore found that he was --

Justice William J. Brennan: Destroyed it [Attempt to Laughter]

Mr. John J. Corrigan: -- an employee of the Pacific Motor Trucking Company.

I want to touch on a concept that this Court has developed in the FELA field and it has to do with non-delegable; the words non-delegable.

The concept of non-delegable related to non-delegable duties.

There are not cases of this Court --

Justice William J. Brennan: May I suggest.

I think we went also in Sinkler, didn't we?

Mr. John J. Corrigan: No sir.

Justice William J. Brennan: And we set up the operational activities concept as something peculiar to the FELA, didn't we?

Mr. John J. Corrigan: Yes sir.

There are two concepts that though that I wanted --

Justice William J. Brennan: I'm not sure a delegable and non-delegable are really appropriate in that context?

Mr. John J. Corrigan: There are two concepts so that I think it's important.

It's my duty to make clear.

One deals with non-delegable.

Non-delegable refers to duty.

It is not a concept developed by this Court which creates employment.

Once you have employment and work for a railroad and are an employee of a railroad as all the cases that held you have to be to come under the act, then the railroad has a non-delegable duty to furnish you a safe place to work.

And that fact that you send your railroad employee out on another railroad or out to a shipper's premises and he gives an unsafe condition there, you can't say as a railroad but we don't know you because you got hurt there.

No, you have a non-delegable duty and that's the concept in which non-delegable came up and the District Court became confused with it.

Now, as to operational activity, that concept is very much confused by the Smith decision in the Fourth Circuit.

Operational activity is a concept which protects employees who are in fact employed by railroad.

In Huston, Texas, the Missouri Pacific contracted out its switching business and they had an employee in a railroad car and the switching company, who is doing their operational work for them, ran the car into the Missouri Pacific car in which a Missouri Pacific admitted employee was standing and hurt him and this Court says, “This is really an extension of an agency principle.

You -- they -- you can't let someone else do your operational work and then deprive your own employees of a right of recovery because they are your employees.

Justice William O. Douglas: That was because of the special history of the FELA and its purpose?

Mr. John J. Corrigan: Yes.

I think this raises another very interesting point and it's this.

If you analyze the act very carefully, you see that there are three classes involved.

There's a plaintiff class, and the only plaintiffs that come under that act and can recover are employees of common carriers by railroad, not employees of agents of common carriers by railroad.

This Court in 1950 and again, in 1959 said, this term employee and employed is not used in any special sense.

It's just the conventional, whatever the conventional meaning of the word employee is.

And if to be an employee, you have to be in someone's employment and you don't get to be an employee of railroad by being employed by an agent of the railroad.

” This Court made that very clear in the Baker case in 1959.

Justice William J. Brennan: Now, it requires that the railroad itself direct and supervise and detail and plan and everything else the activities of the employee of the --

Mr. John J. Corrigan: Which they did not do in this case.

Justice William J. Brennan: Well, that's unless fact finding aid is to the contrary?

Mr. John J. Corrigan: The other thing -- the other class is the class of carriers, employers into the act.

The class of employers are common carriers by railroad, and if you don't work for railroad for the simple as I can Your Honors, you don't come on to the act.

This Court held that six years ago, in the Edwards case.

You have to work for a railroad or you don't come under the act.

Justice William H. Rehnquist: Mr. Corrigan, could I ask you -- well, I guess it just over purely mechanical question.

In the appendix, there appear to be two sets of findings of facts and conclusions of law?

Mr. John J. Corrigan: I can explain that.

Justice William H. Rehnquist: One is 28 and 29 and the others 161.

Is one the one's prepared by you and the other prepared by your adversary?

Mr. John J. Corrigan: The findings in the low number pages --

Justice William H. Rehnquist: Page 28 and 29?

Mr. John J. Corrigan: -- are the findings as signed by the Court.

The ones at the end of the book are the findings as proposed by the petitioner and is rejected by the Court.

The petitioner asked to have the Court find that his client worked for a railroad, petitioner's attorney asked that, and the Court says, “No, I can't find it.”

Justice William H. Rehnquist: So that --

Mr. John J. Corrigan: He doesn't work for railroad.

Justice William H. Rehnquist: What then the findings at 161 of the appendix weren't ever a signed by the District Court?

Mr. John J. Corrigan: No, sir.

That was the proposed by it.

Justice William J. Brennan: I notice two and that is, defendant Southern Pacific binds through agreement with Pacific had the right to exercise control over the details of the work being performed by the plaintiff at the time the accident occurred?

Mr. John J. Corrigan: That was the proposed findings.

Justice William J. Brennan: Yeah, that's what I say that's one that was rejected, unless somebody didn't -- fact finding aid which was signed.

Mr. John J. Corrigan: Yes sir.

Yes sir?

Justice Byron R. White: In Sinkler where the railroad's employees was hurt in the process of switching the operations carried on by the Belt Railroad --

Mr. John J. Corrigan: Yes, sir.

Justice Byron R. White: -- and independent contractor.

Now, I take it you would say that if both the employee of the railroad and an employee of the Belt Railway had been hurt in the same accident in the Sinkler case, that one would have been under the FELA and the other would not?

Mr. John J. Corrigan: Well, you picked a very unusual fact situation.

They both would of because the Belt Railroad is also a common carrier by railroad and it's employ -- he's --

Justice Byron R. White: I know, but I know -- but, it would have been the FELA -- the railroad would have been liable -- one railroad would have been liable.

You would say --

Mr. John J. Corrigan: Well, both railroads, if --

Justice Byron R. White: Which --

Mr. John J. Corrigan: Both railroad -- here's what would happen.

The Belt Railroad was negligent and if it hurt one of its employees, it'd be liable on that --

Justice Byron R. White: Oh, I understand that.

I understand that.

Mr. John J. Corrigan: Alright.

Now that --

Justice Byron R. White: How about the other railroad?

Mr. John J. Corrigan: The other railroad would be responsible because it gave up an operational activity to the Belt Railroad and because it gave up an operational activity to the Belt Railroad, it cannot escape the consequences action, to its own employees Mr. Justice White.

Justice Byron R. White: Well, how about to the Belt Railroad support?

That's the question.

Mr. John J. Corrigan: Well, the Missouri Pacific under those facts would be liable to the Belt Railroad's employees who are injured because the Belt Railroad's employees were not under their control.

They were not their employees.

The negligence was the act of the Belt Railroad and not the Missouri Pacific.

So, the Missouri Pacific would only be liable to its own employees.

Justice Byron R. White: Even though for purposes, they act the fellow employee doctrine reached the Belt Railway in Sinkler?

Mr. John J. Corrigan: I'm sorry, sir.

Justice Byron R. White: Well, the Belt Railway for some purposes is held identical with the other railroad?

Mr. John J. Corrigan: Only for purposes -- only be -- and I was about to get to that and I think I can explain it this way Mr. Justice White.

Justice William J. Brennan: Oh, that was an interpretation of the word agent.

The --

Mr. John J. Corrigan: That's the next thing I want to come to that's very important.

I've tried to describe three classes that come under this act.

The employee class, the employer class, and now I'd like to talk about the third class which I think relates to your question Mr. Justice White.

The third class are people or organizations referred to in the act are the people or organizations for whom the railroads are responsible; officers, agents and employees of railroads.

Now note, the word agent is used with reference to those people for whom a railroad is liable, for whose conduct they are liable.

The word agent is no way used with reference to the employee class.

It's used in the one part of the statute, but not in the other.

There's good reason for that.

We've quoted the legislative history here quite extensively.

It was relied on it by this Court and quoted extensively by this Court six years ago in Edwards versus Pacific Fruit Express and it was relied on specifically by the Circuit Court for the Ninth Circuit.

The legislative history is very clear that Congress did not want Teamsters or truck companies under the Act.

So I think, that partially explains why the concept of agency doesn't relate to the plaintiff class.

Justice Lewis F. Powell: Mr. Corrigan, the plaintiff in this case was a member of the trucker union, wasn't he?

Mr. John J. Corrigan: Yes sir, the Teamsters union.

Justice Lewis F. Powell: Teamsters, right.

And was Pacific Motor Trucking Company regulated as a trucking company by the Interstate Commerce Commission?

Mr. John J. Corrigan: Yes sir.

Justice Lewis F. Powell: And by the California Commission?

Mr. John J. Corrigan: Yes, sir.

Some motor carrier operating in interstate commerce.

Justice Lewis F. Powell: Yes.

Mr. John J. Corrigan: In nine western states.

There has been --

Justice William J. Brennan: Incidentally, who's paying the compensation?

The Pacific --

Mr. John J. Corrigan: The Pacific Motor Trucking Company.

They are paying for the pension, medical, and everything.

Justice William J. Brennan: Is there a prospect of the double --

Mr. John J. Corrigan: What's that sir?

Justice William J. Brennan: If there were a reversal here, would there be a prospect of the double recovery?

Mr. John J. Corrigan: Well, I'm sure the Pacific Motor Trucking Company would -- you've asked a question for which I can't find any legal authority one way or another.

Chief Justice Warren E. Burger: Your friend said he hope so and he was then tried the thing how it evolved?

Mr. John J. Corrigan: And I'm sure the Pacific Motor Trucking Company would work Your Honor on the opposite, for the opposite result.

You know, there are something else about this case that's very important, and it's this.

Because railroads have been around a long time, people think in terms that they should be able to do everything for themselves because at one time, they did.

They had their own carpenters a hundred years ago, their own plumbers, their own sheet metal workers and everything, but we don't live in that kind of world anymore.

The work that was being done by Mr. Kelley in this case was not railroad work, it was Teamsters' work.

The record in this case, specifically the testimony of Mr. Cochins shows the following to be true and I think this is very important.

This trucking company was organized and formed in the early 1930's and about 1937, they built highway trailers, the truck company, the PMT to carry automobiles along the roadway in trailers, the driveway track thing you see and the PMT employees like Kelley in 1937 loaded and unloaded those trailers.

About 1950, the railroads started what was known as piggy back service.

That piggy back service was flat cars on which they would put vans, trucks.

And little later, one of the kinds of vans or trucks they put on the railroad cars were these highway trailers that carried automobiles.

The actual truck trailer with the automobiles on it was tied on the railroad car and it was a form of piggy backing.

The same Teamster employees who were performing that works since 1937 performed in the loading and unloading on the railroad cars; the loading and unloading.

Then in the early 60's, the railroad, the railroads of this country designed what's knows as bi-level and tri-level cars and they did a way with putting the trucks -- the autos on the trucks on the cars.

They just put the cars on train -- on the railroad cars -- the automobiles on the railroad cars, but the significant thing is this.

The same employees, the same Teamsters like Kelley, who had been there eight years doing this work continued to do the work, it was never done by railroaders.

And why should anyone suppose it should be done by railroaders?

There's a lot of work that comes under a railroad carrier that is not railroad.

There a lot of peripheral industries that work with a railroad and their activities are carried under a tariff, there are cases on our brief on this, but they are not railroading.

This Court said six years ago, the last case decided on the question of coverage under the act was Edwards versus Pacific Fruit Express.

This Court said there a lot of things that look like railroading, but they're not railroad.

In the Edwards' case, that company owned railroad, switch engines, head tracks, move box cars, own cars, did switching but they weren't a common carrier by rail.

Not being a common carrier by rail, their employees couldn't come under the act.

So --

Justice Harry A. Blackmun: Mr. Corrigan, if you prevail here, I suppose you think it that the Ninth Circuit opinion does not open the way to railroads avoiding FELA liability by contracting out various things such as maintenance and the like?

Mr. John J. Corrigan: No.

I'd like to address myself to that question sir.

In the first place, we have to look at it in the context that contracting out to avoid the act would be bad.

If you were avoiding it with reference to your obligations to your own employees which --

Justice Harry A. Blackmun: Section 5, is that it so?

Mr. John J. Corrigan: Yes sir, which Kelley was not in this case.

We always have to start there.

Kelley was not an employee of the railroad.

Now, contracting out that, sir, can be prevented if it's evil, if --

Chief Justice Warren E. Burger: Need some contravention of Section 5?

What you're talking about when you say evil?

Mr. John J. Corrigan: Yes.

If it's wrong, I don't -- I'm not sure that it would be in contravention of Section 5 contracting out.

Chief Justice Warren E. Burger: Of the act --

Mr. John J. Corrigan: Yes.

Chief Justice Warren E. Burger: But some part of the act then.

Mr. John J. Corrigan: Yes.

If it is and I don't agree that it is, but let's assume for the purpose of argument.

Well, no, I can't agree that contracting out is prohibited by the Act.

What's prohibited by the Act is taking a release from an employee or when he signs up for employment, I promise not to sue you.

That's what Section 5 is all about, but Section 5 doesn't deal with contracting out.

But you see, contracting out can be handled by other laws and institutions, not by an improper interpretation contrary to legislative intent of the FELA.

The FELA said -- that Congress said and this Court said Congress said it six years ago, “that the FELA only applies to employees of railroads.

” Now with that in mind, this Court shouldn't strain to worry about contracting out and in the process, improperly interpret the FELA for this reason.

Contracting out will be prevented by the Railway Labor Act and by the United Transportation Union.

If the railroad decided, it would be a good idea to contract out all the work of our locomotive engineers.

The unions would file a Section 6 notice and there would be a nationwide strike sooner or later, and they couldn't do it.

So I think, it's so highly theoretical and to worry about theoretical things like that and interpret the Act where it shouldn't go.

Where this Court says it shouldn't go six years ago would be wrong.

Another thing I want to point out to you about contracting out why it wouldn't work.

The railroad operations, pick a train moving from San Francisco to Salt Lake City is a very integrated type of operation.

The engineer has to rely on the conductor for his signals who has to rely on the brakeman, who has to rely on the dispatcher, who has to rely on someone else.

If you contracted out the work of the conductors or the brakemen or the engineer, those people would still be controlled by the railroad because it's still so integrated and this Court wouldn't have any trouble finding if the contracting out came to pass, which it won't.

This Court wouldn't have any difficulty finding, the railroad still maintaining control.

The conductor is still telling the engineer when to move, the train dispatcher still telling them when they can leave the station, the train master still running the show, there is still requisite control and supervision over these employees who have been contracted out.

So, the railroad may think it's contracting them out but this court would hold that the control is still there, the control that is not in the Kelley case.

Chief Justice Warren E. Burger: And I don't know of Mr. Engel are there any -- Mr. Corrigan, whether there are any Pullman cars left anymore, but a Pullman car is typically a railroad function, is it not?

Mr. John J. Corrigan: Well, this Court -- this Court said no and --

Chief Justice Warren E. Burger: Well, they didn't say it wasn't the railroad function.

Mr. John J. Corrigan: But what they said -- what this Court said in Robinson versus Baltimore Ohio in 1915, that there are many things that happen on the railroad that are not really railroading in the sense that Congress intended in the Federal Employers' Liability Act.

Chief Justice Warren E. Burger: Well, let me change my question.

It's a typical common carrier function, isn't it?

Mr. John J. Corrigan: It's a common carrier function for railroad to pull a Pullman car and they are still Pullman cars, yes sir.

Chief Justice Warren E. Burger: And the car looks from the outside much like all the cars?

Mr. John J. Corrigan: Yes, sir.

Chief Justice Warren E. Burger: But the court held, the Pullman car employees were not if I recall it correctly, where not employees of the railroad.

Mr. John J. Corrigan: Yes sir, and didn't come under the Act.

Chief Justice Warren E. Burger: And more important did not come under the Act?

Mr. John J. Corrigan: Yes, sir.

Chief Justice Warren E. Burger: But it would have been entirely appropriate would it not for Congress to have put Pullman car employees under the Act since they are pulled by the same engine?

Mr. John J. Corrigan: That's -- yes, sir.

It would if, if the Congress would have wanted it too, but Congress didn't want to and this Courts said they didn't want to in the Robinson case.

We have extensive legislative history Your Honor, in our brief and this Court holds extensive legislative history in the opinion, in the Edwards case which I keep coming back to by Justice Black.

This Court relied on it and this Court said that there was a great deal of legislation dealing with railroads in the decade of the 30's, wherein Congress if it wanted to, could have included other people, but Congress specifically excluded other people and they specifically excluded Teamsters.

Then, when we got around to the 1939 Amendment of the FELA, Congress was asked to include trucking companies and Teamsters, and Congress said no.

And the Ninth Circuit is cognizant of that, and they make the reference to the report -- the report in their opinion.

But I urge upon you that not only the Ninth Circuit is aware of it, but this Court was aware of it and this Court relied heavily on it in the Edwards case.

I want to allude to another thing that's important.

There is no particular kind of railroad activity that is magic.

If you're doing a certain kind of work, you must be a railroader.

When this Court interpreted the 1939 Amendment in a case called Reed versus the Pennsylvania Railroad, this is what it said.

The railroad was all upset because Mrs. Reed was a clerk and the wind that blew in her office and cut her on the face and they said, well you're not a railroader.

You don't have the suit on you on your face, and cinders in your hair, and calluses on your hand.

You're a clerk.

You can't have a recovery under this Act and this Court said what counts is in order to come under the act, not what she do.

You can be a clerk and come under this Act and since that opinion, every clerk has come under this Act.

What counts is that you have to be in the employment of a railroad which and doing work which closely or substantially effects interstate commerce.

Mr. Kelley was not in the employment of a railroad.

It was specifically had so held by the trial court.

I think that for whatever reasons there is a direct conflict, and there's no way around it between the Fourth Circuit and the Ninth Circuit.

And the legislative history as interpreted by this Court and the decisions in Robinson of this Court and Baker of this Court, clearly indicate that the Fourth Circuit is an error in that one case.

There's only one case, it's Smith versus Norfolk & Western, in which they said, “We find that Mr. Smith is not an employee of a railroad.

But, it doesn't matter to us.

He is an employee of an agent of a railroad.

” And the Ninth Circuit recognizes, this Supreme Court has recognized on many occasions, that isn't enough.

You have to be an employee.

Chief Justice Warren E. Burger: Was there anything in the Edwards case which I see you how reason to be familiar with that indicated that the Pacific Fruit Express was owned by one or a combination of railroads?

Mr. John J. Corrigan: It was on 50% by the Southern Pacific Transportation Company and 50% by the Union Pacific Railroad Company.

But again --

Justice William J. Brennan: You argued it, didn't you?

Mr. John J. Corrigan: Yes, sir.

Justice William J. Brennan: That's what I like this suit?

Mr. John J. Corrigan: Yes, I like that case, judge, Your Honor. [Attempt to Laughter] I'm sorry.

Chief Justice Warren E. Burger: We apparently lost the dissenting opinions in that case.

I don't find it with me.

Mr. John J. Corrigan: Your Honor, it was [Attempt to Laughter] There's one other thing.

The trial judge in this case was not asked to decide questions of law only.

This was a bifurcated trial.

He was the fact finder.

Thank you very much for the time and privilege of being here

Chief Justice Warren E. Burger: Thank you Mr. Corrigan.

Mr. Engel, you have 2 minutes left.

Rebuttal of R. Jay Engel

Mr. R. Jay Engel: Briefly, Your Honors.

The conclusion of law that I proposed to the trial court was a conclusion of law which the Court can find at page 163 of the index where I stated that Mr. Kelley was a quote “employee” of the defendant Southern Pacific.

The trial court did not reject a fact finding of employment and what the trial court did is a rejected by use of term “employee.”

Justice William J. Brennan: No, but he did reject your fact finding too, didn't he?

Mr. R. Jay Engel: Well, there were some that he did reject Your Honor.

Justice William J. Brennan: Oh I mean, that's the one would seems to me have some relevance here.

That's the one that seems -- if it's covered at all to be covered in fact finding aid and he did so?

Mr. R. Jay Engel: Yes.

I think he did encompass my fact finding to in his fact finding aid.

There were several of them that were combined up by, and one of them in his -- specifically says, they had the responsibility and control.

I think it's rather clear that he found as a matter of fact that they had the control.

And --

Chief Justice Warren E. Burger: Doesn't -- that didn't quite a strong argument as it would be if he had not been presented with a -- an explicit finding about employment and rejected it or at least failed to adopt it.

Mr. R. Jay Engel: Well Your Honor, he rejected my use of putting “employee” in quotes as a conclusion of law.

Chief Justice Warren E. Burger: You could have just taken the quotation marks out if you wanted to find that you -- your man was an employee?

Mr. R. Jay Engel: And what he did though Your Honor is that change the language of my conclusion of law and added a fact that I or fact -- a conclusion of fact that I had not proposed, and that was his proposed or his finding number 9, which specific and I had not offered that.

It says the work being performed by the plaintiff and this is the finding that brings the plaintiff within the relationship to Southern Pacific Company because of the nature of work he was doing.

Justice Thurgood Marshall: He never said that he was an employee?

Mr. R. Jay Engel: No, Your Honor and because --

Justice Thurgood Marshall: So, he rejected that?

Mr. R. Jay Engel: He rejected my conclusion of law where the term employee was used, yes.

Justice Thurgood Marshall: And that's it, the word that's used in the statute?

Mr. R. Jay Engel: Yes.

But in -- but in Baker versus Texas which is a test, and this -- what is being argued here is that Southern Pacific Company wants this Court now to go back and rephrase or reword or change Baker versus Texas wherein this Court at that time and what is been the rule for about many years now that you make a factual determination as to whether the person is an employee as that term is used within the FELA.

It is not that you make a factual determination that the person in fact is an employee; it's a matter of creating a class of individuals on an individual case basis as to whether an individual fits within the coverage of the FELA.

And what we are doing here is what the Ninth Circuit did not do and that was to recognize that it's a factual conclusion and a factual determination for the District Court to make, and what is happening is what is happening here.

Each case now will be re-argued in re-argued because there is no rule coming from this Court as to a guideline whereby the District Court's can use.

This Court has set down that guideline in Baker and it says it's a factual determination of each judge to do in each individual case.

And that's the rule that they're challenging.

They want this to have to be a matter of the law to take away from the District Courts the ability to make a factual determination.

Justice William H. Rehnquist: But -- Mr. Engel, your -- their conclusion of law you proposed at 163 was that the plaintiff was an employee of the defendant?

Mr. R. Jay Engel: In quotes, yes.

Justice William H. Rehnquist: The conclusion that Judge Zirpoli reached, the conclusion of law, on page 30 of the appendix, is really quite a different reasoning process, isn't it than yours is relying on Baker versus Texas in Pacific?

Mr. R. Jay Engel: Well, I don't think so Your Honor because Baker versus Texas, it said it's a factual determination depending on what the work that was being performed at the time of a given injury.

And what the court has done in its factual conclusion here is characterized the kind of work that was being done that supported the Court's conclusion that he was entitled to recovery.

Rather --

Justice William H. Rehnquist: But that's unwilling to say that he that -- your man was an employee of Southern Pacific, Judge Zirpoli was?

Mr. R. Jay Engel: That's correct.

He chose to characterize it by the nature of the work as suppose do a label is to whether he is employee or agent or borrowed servant or whatever, he characterized by the nature of work that Mr. Kelley was doing.

And because of the nature of work that he was doing, he was entitled to FELA coverage, and that has been the standard test this Court has promulgated since Baker and long before back in 1927 with regard to the doctrine of borrowed servant.

It was the nature of work the individual is doing.

What Southern Pacific wants to do is to eliminate the whole concept --

Justice Byron R. White: But didn't he go through that process and then include like the Act requires that this man was an employee of Southern Pacific?

Mr. R. Jay Engel: Well, why he chose to characterize it by the nature of --

Justice Byron R. White: Better than reject you finding.

Mr. R. Jay Engel: Well Your Honor, I don't know.

All I know is that he chose to characterize it by the nature of work.

Justice William J. Brennan: Well, I suppose that's -- you have it an award in favor of your man that some place in it if finding that he was before the trial.

Mr. R. Jay Engel: Well he is certainly, we have to assume that the judge is cognizant of what the statute reads and he has cited the statute in his conclusions of law.

Justice William J. Brennan: He did make an award, didn't he?

Mr. R. Jay Engel: Yes.

Chief Justice Warren E. Burger: Alright.

Suppose --

Justice William J. Brennan: Was it dollar award?

Mr. R. Jay Engel: Yes.

Justice Potter Stewart: And the difference is in the Smith case, the Court of Appeals explicitly said that the plaintiff there was not an employee and then they went ahead and said nonetheless, he is covered by the Act.

Mr. R. Jay Engel: Well, that's how Southern Pacific characterizes --

Justice Potter Stewart: Well, I just read the opinion myself and I would think that it would be helpful to you?

Justice Byron R. White: I would think so, too.

Mr. R. Jay Engel: What I'm saying is that what Smith said and what the District Court here said is that depending on the type of work that the person was doing as in Smith that he does fall within the FELA and Smith recognized that --

Justice Potter Stewart: Well, to fall within the FELA --

Mr. R. Jay Engel: Yes.

Justice Potter Stewart: -- everybody agrees to chapter the “employee”.

Mr. R. Jay Engel: And there is no --the history of having employees of independent contractors covered by the FELA is not a new concept and that's what they wish to abolish.

Chief Justice Warren E. Burger: Is it of any significance at all or relevance that Kelley has never recognized himself has an employee of the railroad?

Mr. R. Jay Engel: Well, the Restatement sets down some 13 factors anyone of which can be controlling and no one of which is controlling and one them is that what the parties understand the relationship whether he thinks regarding who he thinks is employed by or who they think is their employee.

But that is only one factor that this Court is previously said should be used by the Court as a guideline and I think of particular interest if you will, in my brief, I show how the District Court went down and made its findings to almost correlate precisely with the Restatement test which is the test that they wish to abolish.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.