AuthorRogers, Paris

Introduction 414 I. Historical, Legislative, and Legal Context of FELA 416 A. Historical Context 416 B. Legislative Action, Subsequent Legal Challenges, and the 1939 Amendment 418 C. Curated Survey of Supreme Court Interpretations of Section 5 422 II. The Circuit Split 424 A. Setting the Standard(s): The Babbitt and Wicker Frameworks 425 1. The Sixth Circuit's Decision in Babbitt v. Norfolk & Western Railway 425 2. The Third Circuit's Decision in Wicker v. Consolidated Rail Corporation 426 B. Subsequent Developments: Where Do Today's Courts Stand? 429 1. The Majority of Courts Follow the Third Circuit's Fact-Intensive Standard 430 2. A Minority of Courts Apply the Sixth Circuit's Bright-Line Rule 433 3. Some Courts Decline to Choose One Approach Over the Other 435 a. Reconciling Babbitt and Wicker as Applicable in Different Fact Patterns 435 b. With the Same Result Either Way, No Need to Pick an Approach 437 C. Forging a New Path 23 Years Later-- The Fifth Circuit's Decision in Mendoza-Gomez v. Union Pacific Railroad Company 439 III. Analysis of the Third, Fifth, and Sixth Circuit Decisions 441 A. The Third and Fifth Circuit Incorrectly Assert that a Waiver May Include the Release of Future Unrelated Claims 441 B. The Sixth Circuit is Right About the Need for a Presently Manifesting Injury 445 IV. Articulating a New Standard: The "Ripeness-plus- Preclusion" Approach 448 A. Analysis of the Text of Section 5 of FELA 450 B. The Legislative History of FELA Supports the Ripeness-plus-Preclusion Approach 454 C. Public Policy Rationales Underpinning the Ripeness- plus-Preclusion Approach 457 Conclusion 463 INTRODUCTION

The American railroad is sometimes described as a rural lifeline, connecting disparate hamlets to one another. (1) While railroads do connect rural areas, railways can also facilitate connection between major urban spaces and provide a vital link between cities and their suburban counterparts. (2) In fact, commuter railways are an essential part of life for many denizens of densely packed cities in the northeast United States, who rely on them for transportation between work and home. (3) These railroad connections present employment opportunities for thousands of Americans, many of whom also live and work in urban areas. (4) This Note aims to help tell the story of those employees, who have worked tirelessly, often at great physical expense, to keep America moving.

Railroad employment and physical injury often go hand-in-hand. While safety standards have increased over the last century, railroad employment remains one of the most dangerous occupations in America. (5) With the inherent danger of the railroad industry in mind, Congress passed the Federal Employers' Liability Act (FELA or the "Act") in the early twentieth century to shift the burden of those injuries from the employee to the employer and prevent railroads from relieving themselves of liability when accidents occur. (6) Today, FELA permits railroad employees to recover for injuries caused by their employer's negligence. (7) However, such controversies typically result in a settlement agreement negotiated without the aid of counsel. (8) These agreements sometimes contain provisions designed to waive or release an employee's right to bring future claims under FELA arising from their employment. (9)

Today's courts are caught in broad disagreement about the validity of waivers and releases under FELA. Section 5 of FELA invalidates some but not all such waivers, and the courts have yet to determine the extent of section 5's reach. As the law currently stands, three federal Circuit Courts of Appeals have produced inconsistent interpretations of section 5, yielding unpredictable results for railroad companies and their employees alike. This Note provides a comprehensive overview of the conflict and presents a synthesis of the best aspects of the two leading approaches. The "ripeness-plus-preclusion" approach, as this Note calls it, enjoys the advantages of the Sixth Circuit's bright-line approach while accommodating some of the justifiable concerns of the Third Circuit. Rooted in FELA's text, the ripeness-plus-preclusion approach respects both the history of the statute and the interpretive norms of the U.S. Supreme Court.

Part I of this Note sets forth the legislative history of FELA and discusses early twentieth century Supreme Court interpretations of section 5. (10) Part II identifies where the Court's early precedents failed to provide clarity and explains two interpretive approaches to section 5 that emerged in decisions published by the Sixth and Third Circuits in the late 1990s. (11) After surveying lower court decisions that have grappled with which standard to apply, it examines the Fifth Circuit's recent foray into this unsettled area of law. Part III analyzes the decisions of the Third, Fifth, and Sixth Circuits, with a particular emphasis on: (a) dispelling the myth that the Circuit split is a function of the power struggle between contract and tort law, and (b) clarifying what is required to establish a settleable claim for the purposes of a FELA action. (12) In Part IV, this Note articulates a new approach that better reflects the text and legislative history of FELA, as well as the remedial purpose it was enacted to effectuate. (13)


    Part I of this Note addresses the hazardous nature of railway employment in the nineteenth and twentieth centuries, contending that brutal working conditions constituted the major impetus for passage of FELA. Then, it presents an overview of FELA's legislative history, subsequent legal challenges to FELA's legitimacy, and congressional responses to these challenges. Finally, this Part surveys the Supreme Court's early interpretations of FELA section 5 to identify which issues have been decided and where ground remains unsettled.

    1. Historical Context

      Westward expansion in the United States, propelled by the industrial revolution, exacted a heavy toll on the laborers who made this development possible. (14) The age of manifest destiny was facilitated by nascent technologies, the most important of which was the railroad. (15) For much of the nineteenth and twentieth centuries railroads dominated American transportation, transforming daily life and capturing the popular imagination along the way. (16) However, increasing reliance on this new machinery was accompanied by brutal working conditions on the rails. (17) In the late nineteenth century, a railroad brakeman had an almost 80% chance of dying prematurely. (18) Switchmen in 1893 had an average life expectancy of seven years. (19)

      These conditions were exacerbated by widespread acceptance of laissez faire economic theory, which discouraged government interference in matters concerning labor. (20) That callous philosophy, which regards the laborer as mere chattel, dominated business practices during the epoch of railroad transportation in America. (21) The practical effect of this doctrine was most devastating when railway men became casualties of their hazardous employment. (22)

      At the time, railroad companies had little incentive to adequately compensate injured employees. (23) An employee might have been prevented from bringing suit in court based on "some contract or device by which the employer had successfully exempted itself from liability." (24) Even if an employee were to sue, tort law was generally unsympathetic to injured employees. (25) Employers regularly asserted a trio of judge-made defenses with great success. (26)

      Still, as early as 1889, government officials recognized the urgent need for federal legislation to protect these essential employees through direct federal regulation. (27) President Harrison, who noted the plight of these workers in his message to Congress in 1889, forecast the public policy rationales that would underpin subsequent legislation: "It 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." (28) Against this historical backdrop, and in response to growing public concern, Congress subsequently turned its attention to the safety of those who worked on the rails.

    2. Legislative Action, Subsequent Legal Challenges, and the 1939 Amendment

      Congress began to regulate railway safety just before the turn of the twentieth century. The Railroad Safety Appliance Act was enacted in 1893, requiring an array of safety devices on all railroad cars. (29) Two years later, FELA was introduced in Congress. (30) After languishing without enough political capital for nearly a decade, the bill eventually garnered the support of President Theodore Roosevelt, whose efforts drove it through the 59th Congress in 1906. (31)

      FELA was enacted as a response to the aforementioned dangerous working conditions, as well as the common law barriers preventing railroad employees from receiving compensation for injuries resulting from their employer's negligence. (32) Moreover, Congress noted that some railroads "insist[ed] on a contract with their employees, discharging the company from liability for personal injuries." (33) Congress has consistently stated that FELA was intended to specifically remedy these problems. (34) As a Senate Subcommittee report later recounted:

      The passage of the law was urged upon the strongest and highest considerations of justice and promotion of the public welfare. It was largely influenced by the strong message of President Roosevelt to the Sixtieth Congress in December, 1907, in which the basis of the legislation was clearly and strongly placed upon the ground of justice to the railroad workmen of this country and in which legislation was urged to the limit of congressional power upon this subject. (35) However, the Supreme Court promptly struck down the original Act in January 1908, holding...

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