The 'do no harm' amicus brief in 'BNSF Railway'


A Burlington Northern Santa Fe (BNSF) train moves through Cajon Pass near San Bernardino, Calif., in 2009. (Jonathan Alcorn/Bloomberg)

Next week the Supreme Court will hear oral argument in BNSF Railway v. Tyrrell, a case that has not been at the top of most media coverage about the court, despite confronting the important question:

Whether, notwithstanding this Court's decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), a state court can exercise personal jurisdiction over a defendant railroad that is not at home in the state, in a case that does not arise in the state, on the ground that the plaintiff pleads a cause of action under the Federal Employers' Liability Act and the railroad is not incorporated overseas.

In essence, this is a personal jurisdiction case about a federal railroad law in which the petitioners have both a statutory and constitutional objection to the jurisdiction asserted by the Montana courts.

What I found worthy of posting about was an academic amicus brief filed by the often-quoted Steve Sachs, which does something that more amicus briefs should do—warn courts that a question is much harder than it may seem and encourage them not to answer it. (In this case, the brief argues that the court should avoid the constitutional question and stick to the statutory question.)

Such briefs perform an important service by trying to prevent bad precedent from being made or extended, especially in cases where that may not be the first priority of the parties and may not be obvious to the court. I also suspect that such briefs are more likely to be effective than briefs which ask the court to adopt an unargued academic theory, since they make the more modest request to "do no harm."

In any event, to give you a sense of how such an argument proceeds, here is the summary of the argument. I particularly like the last paragraph.

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman, 134 S. Ct. 746 (2014), forbids Montana's exercise of general personal jurisdiction here, Pet. Br. 22-27;

2) That Congress has not sought to license the state's exercise of jurisdiction, Pet. Br. 27-48; and

3) That such a license would be void under the Fourteenth Amendment, Pet. Br. 48-54.

BNSF's first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is it unnecessary to decide, it has the further defect of being wrong.

Respondents' case hinges on whether Congress in 1910 affirmatively licensed state personal jurisdiction over railroads doing business within state lines. Br. in Opp. (BIO) 3, 15-18; see Act of April 5, 1910 (1910 Act),ch. 143, § 1, 36 Stat. 291, 291 (codified as amended at 45 U.S.C. § 56 (2012)). It did not. The 1910 Act specified which federal courts might hear certain actions under the Second Federal Employers' Liability Act (FELA), ch. 149, 35 Stat. 65 (1908) (codified as amended at 45 U.S.C. § 51 et seq. (2012)). It did not say which state courts might do so-only that state courts might do so. Later discussions of doing-business jurisdiction in fact referred to a preexisting standard for state personal jurisdiction, established well before International Shoe Co. v. Washington, 326 U.S. 310 (1945). Respondents' theory gets things backwards: Congress did not reshape state personal jurisdiction to fit the statutory rules for federal courts; rather, it shaped the statutory rules for federal courts to fit preexisting rules for state personal jurisdiction.

While Congress in 1910 left state personal jurisdiction as it found it, this Court's modern decisions have not. Respondents do not ask for Daimler to be overruled, nor do they deny that Daimler requires reversal in the absence of a statutory override. BIO 7-12; cf. this Court's Rule 15.2. This is enough to end the case.

That being so, the Court has no need to reach an important constitutional question. This Court has never squarely decided whether Congress may license the exercise of state personal jurisdiction that might otherwise be invalid. See BIO 17-18; Reply to Br. in Opp. 8. It should not do so in this case. "[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case," Bond v. United States, 134 S. Ct. 2077, 2087 (2014) (internal quotation marks omitted); see also Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring), and here there are further reasons for reticence. The United States did not participate before the Montana courts, and limiting Congress's power in this case may have the effect of striking down other federal statutes or may undermine ongoing legislative efforts and treaty negotiations. If the Court is going to restrict the power of Congress, it should wait for a case in which Congress has actually tried to use the power in question, and in which the United States has been available to defend it.

The Court may be tempted to reach the issue regardless, simply because it seems easy-so easy, in fact, as to obviate any need for caution. Congress cannot license what the Constitution forbids, and the Constitution is widely thought to forbid particular types of personal jurisdiction. Yet that widespread belief is actually mistaken. When originally enacted, the Fifth and Fourteenth Amendments did not themselves impose any fixed limits on personal jurisdiction. They required only that a court have jurisdiction, over the subject matter as well as the parties-with the substantive doctrines of personal jurisdiction supplied by separate bodies of general and international law. The Fourteenth Amendment, in particular, was correctly understood by this Court in Pennoyer v. Neff to create a federal question of what had been merely a matter of general law, outside the scope of Article III appellate review. See 95 U.S. 714, 722, 732-33 (1878); see generally Sachs, Pennoyer Was Right, 95 Tex. L. Rev. (forthcoming 2017), Modern doctrine is correct to hold that federal courts can review state judgments for their compliance with jurisdictional standards. But it is wrong to suggest that those standards are supplied by the Constitution itself, and so may not be altered by treaty or by Congress's enumerated power under Article IV.

To be clear: this brief does not suggest that the Court conduct its own inquiry as to the original law of due process, or even discuss the issue in any way. The necessary arguments were not briefed at the certiorari stage; they were not raised in the Montana courts; and they have been overlooked by decades of contrary decisions. Yet if the Court now finds itself in a deep hole of incorrect precedent, the least it can do is to stop digging. It should reverse and remand this judgment on statutory grounds, and it should wait for an appropriate case in which to consider the powers of Congress.