IN THE SUPREME COURT OF FLORIDA CASE NO. SC04- LOWER TRIBUNAL CASE NO. 3D IN THE THIRD DISTRICT COURT OF APPEAL OF FLORIDA

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1 IN THE SUPREME COURT OF FLORIDA LOWER TRIBUNAL CASE NO. 3D IN THE THIRD DISTRICT COURT OF APPEAL OF FLORIDA FLORIDA EAST COAST RAILWAY, LLC f/k/a FLORIDA EAST COAST RAILWAY COMPANY A Florida Limited Liability Company, Petitioner v. STEPHEN P. ROLAND Respondent PETITIONER S BRIEF ON JURISDICTION CLARKE SILVERGLATE CAMPBELL WILLIAMS & MONTGOMERY Spencer H. Silverglate, Esq. Hannesson I. Murphy, Esq. Counsel for Petitioner 799 Brickell Plaza, Suite 900 Miami, Florida Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii OTHER AUTHORITIES... v PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 A. The Federal Railroad Safety Act... 1 B. Procedural History... 3 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 5 THE COURT SHOULD ACCEPT CONFLICT JURISDICTION BECAUSE THE THIRD DISTRICT S DECISION CONFLICTS WITH A DECISION OF THIS COURT AND ANOTHER DISTRICT COURT OF APPEAL. CONCLUSION CERTIFICATE OF SERVICE... vi CERTIFICATE OF COMPLIANCE... vi ii

3 TABLE OF AUTHORITIES CASES PAGE Board of Cty. Comm r v. Dexterhouse, 348 So. 2d 916 (Fla. 2d DCA 1977)... 7 Cadieux v. Cadieux, 75 So. 2d 700 (Fla. 1954)... 6 Donald & Co. Sec., Inc. v. Mid-Florida Cmty. Serv., Inc., 620 So. 2d. 192 (Fla. 2d DCA 1993)... 7 Florida East Coast Ry. Co. v. Pollack, 154 So. 2d 346 (Fla. 3d DCA 1963)... 7 Fuller v. CSX Transp. Inc., Civil Action No. 1:95-CV-0414-MNS (N.D.Ga. 1995)... 9 Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994)... 9 Humphreys v. State, 108 Fla. 92, 145 So. 858 (Fla. 1933)... 6 Ingram v. CXS Transp., Inc., 146 F. 3d 858 (11th Cir. 1998)... 9 Kelley v. Norfolk & S. Ry. Co., 80 F. Supp. 2d 587 (S.D.W.Va. 1999)... 9 Kidwell v. State, 696 So. 2d 399 (Fla. 4 th DCA 1997)... 7 Maxfield v. Coe, No. 93 CV DT, 1994 U.S. Dist. LEXIS 8616 (E.D. Mich. 1994) iii

4 McCloskey v. Louisville & Nashville R.R. Co., 122 So. 2d. 481 (Fla. 1st DCA 1960)... 6 Mobil Oil Corp. v. Shevin, 354 So. 2d 372 (Fla. 1977)... 6, 7 Peters v. Union Pacific R.R. Co., 80 F. 3d 257 (8 th Cir. 1996)... 9 Ratner v. Arrington, 111 So. 2d 82 (Fla. 3d DCA 1959)... 7 Rayner v. Smirl, 873 F. 2d 60 (4th Cir.), cert. denied, 493 U.S. 876 (1989)... 2, 3,.. 4, 7, 8, 9, 10 Roberts v. American Nat l Bank of Pensacola, 94 Fla. 427, 115 So. 261 (Fla. 1927)... 6 Roland v. FEC, 2003 WL , *4 (Fla. 3d DCA July 9, 2003)... 4 Roland v. FEC, 2004 WL , *3, n. 5 (Fla. 3d DCA Jun 02, 2004)... 1, 4 State v. Dwyer, 332 So. 2d 333 (Fla. 1976)... 8 Zorick v. Tynes, 372 So. 2d 133 (Fla. 1 st DCA 1979)... 6 iv

5 OTHER AUTHORITIES PAGE , Fla. Stat. (2000) U.S.C U.S.C U.S.C , 2 49 U.S.C U.S.C U.S.C (c) U.S.C (d)... 2, 3, 4 Art. V. 3(b)(3), Fla. Const Fla. R. App. P (a)(2)(A)(iv)... 5 H.R. Rep. No , 96th Cong. 2d. Sess., News 3830, 3840 reprinted in, 1980 U.S. Code Cong. & Admin H.R. Rep , at 7, reprinted in, 1980 U.S.C.C.A.N. 3830, v

6 PRELIMINARY STATEMENT Absent a decision from the United States Supreme Court interpreting a federal statute, are Florida courts bound by the interpretation of lower federal courts? Florida s Second, Third and Fourth District Courts of Appeal have held that federal decisions interpreting federal law are not binding on state courts, while this Court and the First District have held that they are binding. The conflict is now ripe for resolution by this Court. STATEMENT OF THE CASE AND FACTS A. The Federal Railroad Safety Act Petitioner, Florida East Coast Railway, LLC ( FEC ), seeks discretionary review of the Third District s decision in Roland v. FEC, 2004 WL , *3 n.5 (Fla. 3d DCA Jun 02, 2004), because its refusal to accept a federal appellate court s interpretation of a federal statute, the Federal Railroad Safety Act, 49 U.S.C , et seq. ("FRSA"), 1 expressly and directly conflicts with decisions of this Court and another Florida district court of appeal on the same question of law. (Conformed copy of opinion included in Appendix). 1 The FRSA previously was codified at 45 U.S.C. 421, et seq., before it was renumbered without change in

7 The FRSA provides national uniform regulations for railway safety. See 49 U.S.C , et seq. The statute completely and expressly preempts all state laws, rules, regulations or orders related to railroad safety, including state whistleblower claims. Id The FRSA vests exclusive jurisdiction over railway safety whistleblower claims in the National Railroad Adjustment Board pursuant to the administrative procedures of the Railway Labor Act. 49 U.S.C (c); 45 U.S.C The FRSA also contains an election of remedies provision stating that a railroad employee may not seek protection under both this [whistleblower] section and another provision of law. 49 U.S.C (d). Rayner v. Smirl, 873 F. 2d 60 (4th Cir.), cert. denied, 493 U.S. 876 (1989), is the only decision in the country addressing the election of remedies provision in the context of FRSA preemption of a state whistleblower claim. In Rayner, a railroad employee claimed that he was demoted for reporting safety violations to his supervisor. He sued his railroad employer in state court claiming his demotion for whistleblowing activities violated Maryland law. The railroad removed the case to federal court, arguing that the FRSA completely preempted the state law claim. The district court agreed, finding that the FRSA stripped the state court of subject matter jurisdiction. 2

8 On appeal, the Fourth Circuit affirmed, holding that the FRSA completely preempted the employee s state whistleblower claim and that the employee was required to exhaust his federal administrative remedies. Rayner specifically rejected the argument that the FRSA s election of remedies provision permitted a state whistleblower claim: Appellant contends that 441(d) [now 20109(d)] grants him a choice of remedies and therefore permits him to pursue a state common law action for wrongful discharge. Congress intent in enacting 441 [ 20109], however, was simply to preserve existing protections and remedies under the Railway Labor Act, See H.R.Rep. No , 96th Cong. 2d. Sess., reprinted in, 1980 U.S. Code Cong. & Admin. News 3830, The section refers to federal statutes or regulations, not the common law remedies of the fifty states... Section 441(d) [ 20109(d)] is therefore not a general election of remedies provision. Rayner, 873 F.2d at 66 n.1 (emphasis added). B. Procedural History Respondent, Stephen P. Roland ( Roland ), a railroad special agent, sued FEC claiming that it terminated his employment in violation of the Florida Whistleblower Act, Fla. Stat , et seq. FEC moved to dismiss because the claim was completely preempted by the FRSA, and therefore the state court lacked subject matter jurisdiction. Relying on Rayner, the trial court dismissed the action, giving Roland leave to pursue his federal remedy. On appeal, the Third District reversed, holding that 3

9 Rayner was not on point because it "does not cite, or analyze the effect of 49 U.S.C (d) [the FRSA s election of remedies provision]." Roland v. FEC, 2003 WL , *4 (Fla. 3d DCA July 9, 2003). FEC moved for rehearing, rehearing en banc and certification to the Florida Supreme Court of an issue of great public importance. Among other things, FEC pointed out that Rayner expressly analyzed the election of remedies provision and rejected it as an obstacle to preemption. FEC also asserted that the Third District was bound by Rayner s interpretation of the FRSA because it was the only federal appellate decision to address that statute s preemption of a state whistleblower claim. FEC noted, however, that the Florida district courts were split on whether a federal decision interpreting a federal statute is binding and requested in the alternative that the Third District certify conflict on this issue. 2 The Third District denied FEC s Motion. In its revised opinion, the Third District again refused to follow Rayner, this time holding that it was not bound by a federal appellate court s interpretation of a federal statute and that, in its view, Rayner s interpretation of the FRSA was impermissible. See Roland v. FEC, 2004 WL , *3 n.5 (Fla. 3d DCA Jun 02, 2004). The Third District s 2 FEC also argued that since the case involved national safety and the supremacy clause of the United States Constitution, it merited certification as a matter of great public importance. This request was denied as well. 4

10 opinion is the first decision by any court in the country holding that the FRSA does not preempt a state whistleblower action. SUMMARY OF THE ARGUMENT The Third District s decision expressly and directly conflicts with decisions of this Court and the First District concerning the binding nature of a federal appellate court s interpretation of a federal statute. Accordingly, this Court should accept conflict jurisdiction and permit the parties to brief the matter on the merits. ARGUMENT THE COURT SHOULD ACCEPT CONFLICT JURISDICTION BECAUSE THE THIRD DISTRICT S DECISION CONFLICTS WITH A DECISION OF THIS COURT AND ANOTHER DISTRICT COURT OF APPEAL. The Florida Supreme Court has discretionary jurisdiction to review decisions of district courts of appeal that expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. See Art. V. 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). In this case, the Third District s ruling that it is not bound to follow a federal appellate court s interpretation of a federal statute expressly and directly conflicts not only with prior decisions of this Court, but also with its own prior decisions and those of another Florida district court of appeal. 5

11 This Court has long held that the construction given to a federal statute by the federal courts is not merely persuasive but binding on state courts: We recognize, of course, that state courts are bound by federal court determinations of federal law questions. Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 375 n.9. (Fla. 1977) (emphasis original). See also Cadieux v. Cadieux, 75 So. 2d 700 (Fla. 1954) (same); Humphreys v. State, 108 Fla. 92, 145 So. 858 (Fla. 1933) (same); Roberts v. American Nat l Bank of Pensacola, 94 Fla. 427, 115 So. 261 (Fla. 1927) (same). The First District applied this rule in McCloskey v. Louisville & Nashville R.R. Co., 122 So. 2d. 481 (Fla. 1st DCA 1960), which concerned the Federal Employer s Liability Act ( FELA ). The court held that federal decisions interpreting this federal statute were binding, regardless of the court s subjective belief as to the soundness of the federal precedents. Id. at 483. See also Zorick v. Tynes, 372 So. 2d 133 (Fla. 1 st DCA 1979) ( When a Florida court accepts jurisdiction of a federal statutory claim, we receive the federal creature hide and hair, we take it all: the statute, the federal judicial decisions (uniform or not) construing it and the gloss and other consequences of federal administrative action upon the statute. ). Until its opinion in this matter, the Third District, relying on the above cited decision of this Court, also accepted federal decisions interpreting federal statutes 6

12 as binding. Ratner v. Arrington, 111 So. 2d 82, (Fla. 3d DCA 1959). In fact, this Court cited Ratner approvingly for this very proposition in Mobil Oil Corp., 354 So. 2d. at 375 n.9. See also Florida East Coast Ry. Co. v. Pollack, 154 So. 2d 346, 347 (Fla. 3d DCA 1963) ( [t]he substantive rights and obligations of one bringing an action under [FELA] depend upon the Act and applicable principles of common law as interpreted and applied by the federal courts ). In this case, the United States Supreme Court has not ruled on whether the FRSA preempts a state whistleblower claim. However, uniformity exists in the federal appellate courts on this issue and, specifically, the interpretation of the election of remedies provision contained in the whistleblower section of the FRSA. Indeed, the only federal appellate decision to address this specific issue is Rayner. In contrast to decisions of this Court and the First District, the Second and Fourth Districts, which the Third District cited in support of its refusal to follow Rayner, have held that state courts are not bound by federal decisions interpreting federal statutes. See, e.g., Kidwell v. State, 696 So. 2d 399, 405 (Fla. 4 th DCA 1997); Donald & Co. Sec., Inc. v. Mid-Florida Cmty. Serv., Inc., 620 So. 2d. 192, 193 (Fla. 2d DCA 1993); Board of Cty. Comm r v. Dexterhouse, 348 So. 2d 916, 918 (Fla. 2d DCA 1977). 7

13 The other case cited by the Third District, State v. Dwyer, 332 So. 2d 333 (Fla. 1976), is inapposite. Unlike the cases cited above, Dwyer did not involve the interpretation of a federal statute by a federal appellate court. It dealt with the nonbinding nature of a federal court s interpretation of a Florida statute. This case does not involve a state court applying federal decisions to construe a Florida statute. It involves a Florida state court applying federal decisions to construe a federal statute -- the FRSA. Dwyer, therefore, is not on point. Accordingly, as set forth above, the Second, Fourth and (now) Third Districts position on the binding nature of a federal decision interpreting a federal statute conflict with previous decisions of this Court and of the First District. This Court should accept jurisdiction to resolve the conflict. Finally, the Third District attempted to distinguish Rayner on the merits, thereby avoiding the conflict issue. Specifically, it attempted to distinguish between the common-law whistleblower claim in Rayner and the statutory whistleblower claim at issue here. This ignores the explicit language of both Rayner and the FRSA s legislative history. Rayner expressly stated that the FRSA s election of remedies provision applied only to federal statutes and regulations, not state-based claims. Rayner, 873 F.2d at 66 n.1. As Rayner and the legislative history of the FRSA make clear, 8

14 the election of remedies provision simply leaves intact the contractual rights enjoyed by unionized employees under the Railway Labor Act. Rayner, 873 F2d at 65; H.R. Rep , at 7, reprinted in, 1980 U.S.C.C.A.N. 3830, Thus, employees subject to a collective bargaining agreement may enforce their rights under the Railway Labor Act or the FRSA, but not both -- and certainly not under the myriad remedies provided by the 50 states. Similarly, the Third District s conclusion that recent decisions of the United States Supreme Court and specifically, Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994), undercut Rayner is incorrect. Norris, which never mentioned Rayner, dealt with preemption under a completely different statute -- the Railway Labor Act -- and did not involve railway safety. See Fuller v. CSX Transp. Inc., Civil Action No. 1:95-CV-0414-MNS (N.D.Ga. 1995) (refuting the argument that Norris undercut Rayner). Lastly, Rayner has been cited approvingly by several courts since Norris. See, e.g., Ingram v. CXS Transp., Inc., 146 F. 3d 858 (11th Cir. 1998); Peters v. Union Pacific R.R. Co., 80 F. 3d 257 (8th Cir. 1996); Kelley v. Norfolk & S. Ry. Co., 80 F. Supp. 2d 587 (S.D.W.Va. 1999); Fuller, supra. Moreover, at least one federal court, following Rayner, has expressly held that the FRSA preempts state 9

15 statutory whistleblower claims. See Maxfield v. Coe, No. 93 CV DT, 1994 U.S. Dist. LEXIS 8616 (E.D. Mich. 1994). In sum, the Third District had no basis for refusing to follow Rayner. CONCLUSION For the foregoing reasons, FEC respectfully requests that this Court accept conflict jurisdiction and permit this matter to be briefed on the merits. Respectfully submitted, CLARKE SILVERGLATE CAMPBELL WILLIAMS & MONTGOMERY Counsel for Petitioner 799 Brickell Plaza, Suite 900 Telephone: (305) Facsimile: (305) By: Spencer H. Silverglate Florida Bar No Hannesson I. Murphy Florida Bar No

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served on June 25, 2004, by U.S. Mail to H. Mark Vieth, Esq., Tilghman & Vieth, P.A., 2 South Biscayne Blvd., Suite 2410, Miami, Florida and to Lauri Waldman Ross, Esq., Lauri Waldman Ross, P.A., Two Datran Center, Suite 1612, 9130 S. Dadeland Boulevard, Miami, Florida CLARKE SILVERGLATE CAMPBELL WILLIAMS & MONTGOMERY By: Spencer H. Silverglate CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Initial Brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a). CLARKE SILVERGLATE CAMPBELL WILLIAMS & MONTGOMERY 161-2/ By: Spencer H. Silverglate vi