-: SJC-13366,
Chad Marsh V. Massachusetts Coastal Railroad LLC,
and another.
-: Okay, Attorney Nathanson.
-: Good morning, Chief Justice
and Justices of the Supreme Judicial Court.
I also have with me, I would literally say,
guilty of a pun, my right hand man.
(judge laughs)
A new associate of ours.
Connor Lang, is his name.
Thank you, your honor.
-: Could you talk a little louder please?
Thanks. Thank you.
-: Thank you.
As Your Honors may notice from this case,
the primary issue in the case is federal preemption.
And having been doing railroad work
for a long period of time,
this is the most pervasive and the most exclusive
statute in the US code on preemption.
And it has been the subject matter of many a cases.
Just as a little bit of a background,
the railroad industry is the most,
or one of the most regulated industries,
in the United States.
And it has been that way since the Civil War
right up to the present date.
And if you remember a couple months ago
when we had that national rail emergency,
that's all part of it.
And various Acts were passed.
The principle act that we're here before today
is the ICCTA,
that's the Interstate Commerce Commission
Termination Act of 1995,
which was passed by Congress to supplant the old ICC.
And what it did was,
it was definitely intended to be
almost if not complete regulation of the rail industry.
The purpose of the ICCTA was very simple
and you can, set forth in my brief
the legislative history.
It is to have uniformity throughout the country,
the 49 states plus Mexico and Canada.
And the purpose was obviously,
as indicated in the legislative history,
not to have what they call a Balkanization,
or states, you know, having patchwork rules
and regulations for railroads.
The, also the intent-
-: Well, is it patchwork regulations for railroads
or wages of railroad employees or regulation of railroads?
Which is it?
'Cause the language here,
although you say is really quite broad,
is not as broad as the case upon which you rely.
So can you explain to me how broad this is?
-: Very broad, the case.
-: Well, I know very broad.
(judges chuckle)
-: Very broad and very pervasive.
-: But what specifically,
how does it touch upon the wages that employees
of somebody providing your client's services to railroads?
How does it govern that?
-: Okay, let's look at the statute
because the first thing you always do
is obviously look at the statute.
49 USC 10501, 1B.
It's actually B1 and 2.
It says, quote, "The jurisdiction of the board,"
They're talking about the Surface Transportation Board,
which was established by Congress,
"over transportation by rail carrier,"
I'm going to skip around some of the words,
"and the remedies provided,"
and "in this part with respect to rates,
classifications, rules, practices, routes,
services, facilities of such carriers,"
and the second section,
"construction, acquisition, operation,
abandonment or discontinuance of spur, et cetera,
sidetracks, et cetera, is exclusive."
Next part.
-: [Justice Wendlandt] But where do wages fall into that?
Nathanson: Well, if I can get, just take one second.
-: That would be great, if you could get to it.
Nathanson: I'll get to it as soon as-
-: Where do wages fall into that?
-: Okay, what happens is, if you look down,
under section 3A of that act,
it says, "notwithstanding paragraph two,"
paragraph two is that mass transportation exception,
it says "a local government authority
described in paragraph two is subject to
the applicable laws of the United States, related to,"
and I'm gonna skip around, number two,
"the representation of employees for collective bargaining,
employment," three, I'm under three,
"employment, retirement, annuity,
and unemployment systems, or other provisions
related to dealings between employees and employers."
-: Okay.
So that section three does not apply,
it doesn't say that employment is not subject to state laws.
It just says that it is subject to federal law.
-: Well, subject to federal law to me means,
that it's a federal law, means it's federal law.
It's subject to, it wouldn't be subject to state law.
It's subject to-
-: Well, there's certainly things that are subject to both.
-: Well, not for the railroads, not for the-
-: Can give us examples of instances
where the state's been able to exercise
its police power where it hasn't been preempted?
-: Sure. I'm glad you asked that question, Judge,
because the few and only area where preemption
doesn't apply on land use situations, zoning.
Everything else is completely regulated
by the Surface Transportation Board.
-: So when we or the law clerk does the research
in this case on preemption and we say,
"give me all the preemption cases,"
it's only gonna be, non preemption cases I guess,
it's only gonna be zoning?
-: Those are called incidental.
They're incidental things that have really,
are not necessarily for what we call
the management and operation.
You see, the whole purpose of preemption.
-: Yeah, I was just wondering about broad,
I had read the brief,
I was just wondering about broad categories,
but you're saying it's basically zoning.
-: Yeah. It's just land use, Judge.
-: I thought it's laws of general uniformity though, right?
I mean if you spilled a toxic substance,
wouldn't that, I mean, wouldn't that be covered?
-: Covered for preemption?
-: Would not be preempted.
I mean if there's laws related to, I don't know,
contamination or something like that,
that wouldn't be covered?
-: Well that's probably, I believe there are regulations
from the Surface Transportation Board about toxic materials
as we've seen in the newspapers very recently,
that regulate that.
But I'm not sufficiently sophisticated
to answer that question, but I do know economically.
Judge Wendlandt: How do we distinguish
between those incidentals?
Nathanson: I'm sorry, your Honor. I didn't hear you.
-: How do we distinguish between
those incidental laws of general applicability
such as the zoning cases that you reference
versus things that are exempted?
-: The case law answers that very clearly and concisely.
If it affects the management and or operation
of the railroad, it's preempted.
-: And you're saying zoning doesn't affect operations?
Nathanson: No, that's correct.
-: And why is that?
-: Because the other purpose of the ICCTA
was economic regulation,
to make sure that rates were uniform,
to make sure that the railroads can make a living,
that they didn't have to jump through hoops and rings
to make a living and that's why
economic regulation is under the jurisdiction.
Because if they have jurisdiction clearly
over the setting of rates, how do you set rates?
You set rates based upon your operating expenses,
et cetera, et cetera.
And in this particular case, just think about it,
they're claiming, assuming they're right,
they're claiming that the defendant paid
15 to 20 bucks an hour.
They're saying that the prevailing wage is $65 an hour.
And if you don't think that, if that were the law,
that that wouldn't affect the management and operation
of a railroad, I don't know what else would.
-: But zoning would not affect the management
and operation?
-: That's correct. That's correct.
Zoning is, it's called incidental.
If you look at the case law, they talk about incidental.
It does not affect the operation.
You see, the purpose again-
-: Can you, before you go sort of more generally again,
'cause I understand your argument that
buying the prevailing wage would be extremely disruptive.
What I'm trying to understand is the exception.
So the ICCTA provides quote, "except as provided in
paragraph three, the STB does not have under this part
over mass transportation provided
by a local government authority.
And I have trouble understanding his pleading,
but he's suggesting that some of the projects
he worked on are this South Coast Rail line,
so that's a transportation provided
by a local government authority.
Why doesn't the exception apply?
Because MassDOT doesn't provide public transportation.
See the exception-
-: But I thought it also includes a person or entity
that contracts with the local government authority
to provide transportation services.
-: The contract here was with MassDOT.
That does not supply public transportation.
-: So because the Department of Public Transportation
doesn't itself provide transportation?
Nathanson: That's correct.
-: That seems to be a fine distinction.
-: It is the correct distinction because think about-
-: So if it were an MBTA project
or a commuter rail project,
he might be entitled to prevailing wage?
-: Maybe, maybe not, depending.
But you see, let me answer that question
in another way to give you the overall picture.
Justice Kafker: Right.
-: Railroads are part of a national network of rails
that are used by freight and passengers.
And if you are right, and or he's right,
my brother is right that the MassDOT
comes within this subsection, which they don't.
Justice Kafker: Right.
-: That would mean every railroad in the country,
because these railroads share both freight and passenger,
they both use the same lines.
So what that would mean that every railroad
would be literally exempt
because there's a possibility of a use.
And by the way-
-: Why wouldn't, I don't think he would be arguing
that everything would be exempt.
It would be that if you're working on a project
that's paid for by the local transportation agency,
then you'd be exempt.
I think that's his argument.
-: Well the argument is wrong
because first of all, the payment came from MassDOT,
which is not a local transportation authority.
They don't run mass transportation.
So they're clearly excepted and you know,
there are complications even here for the Commonwealth
because getting to the second issue in the case-
-: And by the way, are there cases that tell us
that the Department of Transportation does not meet
the definition of a person or entity that provide,
excuse me, whatever that language is about a local,
it's not a local government authority?
Are there cases that say that?
-: Well it's not cases, it's just statutes
and MassDOT does not provide public transportation.
Period.
-: Is that something that we can determine
at the pleading stage?
Excuse me. -: I'm sorry, go ahead.
-: I'm sorry, Judge?
-: Is that something that we just take judicial notice of?
I mean you're on a motion to dismiss here.
-: Well, I'll go one step better, Judge.
There are no rules or regulations that MassDOT
has over railroads.
There are no statutes, there's no authority here
in Massachusetts that regulates railroads
under MassDOT or any other agency.
When they talk mass transportation,
and my brother's side of the case,
it's the MBTA and our local regional authorities,
that's called mass transportation.
They're the exception.
They're excepted from the ICCTA but not MassDOT
or anybody else.
And I wouldn't get caught up in that, Judge,
'cause that's really not the issue here.
-: Well yeah, I know, but the issue is
that you're here on a denial of a motion to dismiss.
And as you acknowledge, normally a denial
of a motion to dismiss is not something that's appealable.
And the reasons that it's not is because
we like to conserve judicial resources
and have one appeal at one time.
And I'm wondering on the face of the complaint,
which is our test for motion to dismiss,
if we can divine all that you're telling us
about MassDOT, about MCR, about the south,
I think it's the South Coast Rail
that Mr. Marsh was working on,
are all of those things things that you can tell
from the four corners of the complaint
or do we have to send it back for you
to file a motion for summary judgment
at which point you would submit affidavits?
-: I don't think so, Judge,
because it comes under the present execution doctrine,
which is like charitable immunity, things like that.
-: Do you have any cases that allow
the doctrine of present execution to apply
to the preemption context?
-: I don't know if I cited any or not, but it's very similar.
It's identical to charitable immunity.
Because if your Honors decide that it is
federally preempt, that's the end of the case.
There's no basis.
Why should we have to go through a full trial
if the first issue of federal preemption-
-: You might not have to go through a full trial,
you might have to submit affidavits for the things
that you're telling me in the reply brief.
-: Well, I don't even think my brother
challenged it by the way, just as-
-: Well, his complaint is unclear
but he says MCR entered into the South Coast Rail
contract with the state of Massachusetts.
So, and now the state of Massachusetts
is kind of an umbrella, right?
We got the MBTA, we got commuter rail organizations,
I mean, how do we based on that, do what you say?
'Cause I take it, the state of Massachusetts
generally has local transportation, right?
It uses the MBTA-
-: Well does it come under the MassDOT? No.
MassDOT does not regulate the MBTA.
-: It doesn't say MassDOT.
It says the MCR entered into a South Coast rail contract
with a state of Massachusetts
to restore commuter rail services.
I don't know what that means,
but we can conclude, you say, because
the state of Massachusetts doesn't apply
local transportation?
-: That's correct. They do not supply public transportation.
That's common knowledge.
-: Well, common knowledge is, we're stuck with the law.
-: Well I understand, but there are no,
the MassDOT does not have any buses, trains,
or anything like that.
-: Why isn't preemption and its importance
recognized through applying the doctrine of
present execution after summary judgment?
-: Because I think it's, again,
it's very similar to charitable immunity.
It's something that the first question is,
is there a bar totally to the complaint?
Like charitable immunity and federal preemption is
and should be, because -: If it's applicable.
-: If you don't get over federal preemption,
that's the end of the case.
Justice Lowy: If it's applicable.
-: Yeah. The question is whether there are
existing facts that need to be shown
to warrant summary judgment phase.
Then I could see present execution, but.
-: Ironically, my brother never challenged that either,
because I think we both recognize that
the issue of federal preemption is the first issue.
I haven't even talked about the second issue.
But if we, and I see my time is up.
Justice Budd: The time is up.
Justice Kafker: Could I ask one last question?
Justice Budd: Yeah, sure, of course.
-: So again, I'm gonna ask your brother these questions,
but I don't understand what he does.
So Chad Marsh is an equipment operator.
His job responsibility,
I'm reading from the facts of the complaint,
included operating boom trucks, backhoes,
loaders and tampers.
So does he dig to put in rail? Is that what he does?
Nathanson: Yeah.
Justice Kafker: Is that your understanding?
-: This is all rail, yeah.
-: So he just, he operates a backhoe and lays down rail?
Nathanson: Correct.
-: So isn't that your best argument that he's just,
he's putting in rail.
And rail goes for everything, right?
I mean, any time a train runs on it-
Nathanson: Right.
-: It's not, and that's what he does.
He's not building the facility for the South Coast Rail.
He's just putting in rail tracks.
Nathanson: Correct.
Justice Kafker: Okay.
-: And by the way, it's getting to the public project issue.
The reason why it's not a public project,
there's a statute of Massachusetts
preventing people from going on rail tracks.
Actually, may.
-: Counsel, I'm looking at the, what does MassDOT do?
They have references to their work on freight
and passenger rail programs.
Nathanson: Correct.
-: But you're saying they're not at all involved in rail.
-: They're not involved in any public transportation.
What MassDOT has is they own certain rail tracks
and what they do is they lease these rail tracks
either through special easements
or license agreements to various railroads.
That's their only involvement in,
obviously they maintain the tracks,
which is why my client, through an operating agreement,
worked for them.
But they do not provide transportation, period.
They just happened to own these set of tracks.
-: Are there any other questions on any of it?
No? Okay, thank you very much.
Nathanson: Thank you, your Honor.
A pleasure.
-: Okay, Attorney Moeslinger.
Nathanson: I'm sorry for going over.
(Nathanson chuckles)
Justice Kafker: You're not the first.
-: Good morning, your Honors.
Raven Moeslinger for the appellee, may it please the court.
The appellants are demanding
an extraordinary form of relief here.
Their position is essentially that
every single state wage and hour law in the country
that applies to railroad workers is preempted.
And that's not the case.
First, there's no.
-: Well, all we're really having to decide is whether,
the prevailing wage law is a very distinct
sort of protection that creates
a whole different wage structure
and it's Massachusetts specific.
So that's a big deal, having that
applied to railroads, isn't it?
-: Yes, but I think it's like any other minimum wage statute.
-: It's not. It's far from a minimum wage statute.
It's a giant boost and it changes the whole wage structure.
Right?
-: So does the minimum wage law, so does the overtime law.
What you're describing is higher rates of pay
somehow affects the operations.
-: Well, it's a Massachusetts specific wage scale
for public construction projects,
particularly sort of big public buildings
and other things. So it's different.
Do we really apply that to the railroads,
which are sort of an intensely federal integrated system?
-: Right. Well, so your Honor,
what we look at is the preemption language
within the ICCTA, which is exceedingly narrow.
This court has a lot of experience, some experience-
-: Well it's exactly the opposite.
-: [Justice Wendlandt] Isn't it actually quite broad?
-: Well, not in comparison-
-: And so how, tell me how it excludes your client
and the prevailing wage law.
-: Well because it only preempts laws that regulate
the railroad industry.
-: And how does it not regulate the railroad industry
if you have an across-the-board rate of pay,
wages, that is, I don't know, let's say
five times as much as the minimum wage?
-: Well, because that's a law of general applicability
that applies to all market participants on equal footing.
-: In Massachusetts.
But if I have a railroad that goes across the country,
then are you saying that for each different employee,
I have a separate set of prevailing wages
that if I'm a railroad I have to comply with?
-: Of course.
And that's true with respect to-
-: And you don't think that will disrupt
interstate commerce?
-: No, because there's already a patchwork
of different labor agreements across different states.
So there's already different unions
and different states reaching agreements with management
and reaching agreements as to different rates of pay.
So there's already a patchwork.
-: And don't those different union agreements
come under the Board's, the STB's, jurisdiction?
Moeslinger: No.
-: No. -: They do not.
-: So explain that to me.
-: They fall under the Railway Labor Act.
So the STB, the preemption here is exceedingly narrow.
This court has experience applying FAAAA preemption,
which is exceedingly broad and relates to
rates and prices of motor carriers.
-: The federal courts say the exact opposite.
They describe it as a very broad preemption.
So just saying it exceedingly narrow-
-: It is, but there's a distinction
that's been drawn by the courts.
On the one hand, laws that restrict railroad operations
like scheduling and train size and train speed
and the time, for example, that a train
can occupy particular railroad tracks,
those are the sorts of laws that are preempted.
-: Well, I mean you say that,
but then the Seventh Circuit clearly held the other way.
-: Well, the Seventh Circuit on a field preemption analysis,
not on an express preemption analysis,
which is what I'm referring to now,
what they contend is that under the ICCTA's
express preemption provision,
that state wage and our laws are preempted.
My point being that that's never been held by any court
and courts have created a distinction
between laws of general applicability
like state wage and hour laws that are not preempted.
And then state laws that actually regulate railroads
by restricting their operations in some way.
-: You've given us examples, you know,
one state of course can't say train speed
or size of rails.
How about the flip side of that question,
which is what I asked counsel in that
what has been found to be incidental?
He mentioned zoning.
Is there anything else other than zoning?
-: Zoning, licensing laws, building codes,
common law tort claims, environmental statutes,
things of that nature, right?
Things that are incidental and
I think this was the 10th Circuit that
sort of described it this way is,
are you suing them and they just so happen to be a railroad?
Justice Gaziano: That would be a tort claim, for example.
-: Correct. Exactly.
So these, where states are exercising their-
-: But again, this is construction of track, right?
What could be more sort of essential to railroad operations?
And also the prevailing wage is not a
general law of applicability.
It applies specifically to public construction projects.
It's not like zoning or, you know,
laws of general uniformity that apply
to everything out there.
-: But it's not targeting railroads specifically.
That the distinction.
-: So if Mr. Marsh swung his heavy equipment,
boom, negligently and hurt somebody,
there could be a state law tort claim.
Moeslinger: Of course.
-: Not preempted.
-: Of course.
-: But here we're dealing with what do we pay?
Do we pay people $63 an hour or $24 an hour?
in Massachusetts.
-: There's no material difference between those two things.
I mean other than them being very different laws.
But those are laws of general applicability
that apply to all market participants
and they are not preempted.
The authority we've cited-
-: So they're paid $24 an hour in New Hampshire,
then they go into Massachusetts
and they get paid $63 an hour?
-: Well, yes, I suppose if New Hampshire
doesn't have prevailing wage laws,
then perhaps so.
-: How wouldn't that impact operation?
That type of difference in rate of pay?
-: I don't know.
It would cost more to operate,
but that's not managing their operations.
And that's really the distinction,
is the increased cost of participating
in Massachusetts economy is not the sort of thing
that's preempted under the ICCTA.
-: Well, I think that, I just don't buy that.
I mean, the railroads are financially constrained.
That's one of the issues that drives costs.
I mean, this person, again,
I'm trying to figure out what he does.
What does your complaint say he does?
-: Well that he operated equipment,
including backhoes and tampers.
-: And does he just campers dig rails?
Is that what he does?
-: I think in part he levels the ground
so that rail can be placed.
-: For putting rail track in?
Moeslinger: Sure.
-: So when he does that in Massachusetts, it costs $63,
but if he does that in Rhode Island,
they don't have prevailing wage, it costs $21.
And he works for a company that does,
as you allege in your complaint,
integrated rail service, right?
-: Sure.
-: I just don't understand how that doesn't
get us in the mix with them.
-: Your Honor, this court is constrained
by the language of the express preemption provision
in the ICCTA and every single point-
-: I'm trying to interpret it and it says construction
and this seems to be construction of rail.
-: Your Honor, it says the regulation of railroads.
-: But if you read the rest of that, if you read,
there's express reference to construction
in that direct conflict provision, isn't there?
Moeslinger: Correct.
Justice Kafker: What does that mean to you?
-: The STB has authority over
construction of these projects.
It does not say wages, it does not say the rate of pay.
It says construction.
So things like how high a rail depot can be
is something that the STB would have
exclusive jurisdiction over.
With respect to rates of pay,
Congress could have included that in the statute
and they didn't.
-: So Congress, so Massachusetts can say,
if you wanna build a railroad in Massachusetts,
I want you to pay a million dollars a foot.
'Cause they don't really want that railroad, that's okay?
Moeslinger: No.
-: Why not?
-: Because that would be with respect to the,
they would be regulating how a railroad constructed.
-: That's what they're doing here.
They're saying, I want you to pay $63 rather than $21,
and it's just an amount.
Okay, I want you to pay $163 or a million and 63.
-: Well, the hypothetical with respect that you provided
was essentially only applying to railroads.
It is targeting a railroad.
The prevailing wage laws don't target
any particular market participant.
They are laws of general applicability.
And that's the distinction the courts have,
many courts have already interpreted this
and they have drawn this distinction between
are you limiting their operations?
Are you saying, after midnight,
you can't run a train through our town?
Or is it a general law of applicability
that applies to all market participants?
-: When you say many courts,
are you saying many courts have interpreted this
in a prevailing wage context?
-: Not in the prevailing wage context,
but in drawing that distinction and saying,
look, this is not like other preemption.
This is not FAAAA.
This is not other forms of preemption
that relate to rates and prices
and the business structure of motor carriers or railroads.
So under the ICCTA and all the authority
that exists out there, there's no express preemption.
and I, unless there's other questions-
-: [Justice Wendlandt] Well, why isn't there
a field preemption then?
Why is the Sixth Circuit wrong and the Seventh Circuit?
-: Well so field preemption exists
when Congress is so regulated extensively
within a particular area of law that it's left
the states no room to legislate itself.
And so the process,
when you do a field preemption analysis,
what you do is you first, you define the field
of state laws that are potentially being preempted
and then you compare it to the federal laws
in the same subject matter.
It's an apples to apples comparison.
So we have state wage and hour laws
that apply to railroad workers
and we compare them to whatever
federal statutes are out there that regulate
the wages of railroad workers.
The only statute that potentially touches upon
railroad workers and their wages is the Adamson Act.
And that's primarily what the Sixth and Seventh Circuit
pinned their opinion to.
And so I think the history and context
of that statute's very important.
So right before the Adamson Act was passed,
railroad workers and management had a dispute
over number of hours that railroad workers were working,
whether they should have eight hour days or 10 hour days,
and what they should be paid for extra time.
Negotiations broke down.
The president of the United States got involved,
couldn't broker a deal.
And so they threatened,
the railroad workers threatened a general strike,
which if that had happened, would have crippled
the United States economy.
So in emergency action,
Congress passed the Adamson Act.
The Adamson Act does two things.
One, it established an eight hour workday
for railroad workers.
And number two, for 10 months, it froze workers' wages,
railroad workers' wages.
Those are the only two things the Adamson Act did.
It did not set rates, it did not tell anyone
how much to pay anybody.
It just froze the wages because they couldn't agree.
And thereafter, after the freeze,
they were left to negotiate their wages
and reach their own labor agreements.
Now the Sixth and Seventh Circuit,
what they did was they took that legislative history
and that context and they took it a step too far.
-: So they said basically, it's a free market exercise.
You individual employee negotiate with you railroad.
Moeslinger: Right.
-: And that as a result created a negative implication
as to preemption.
-: Exactly.
-: So why is that wrong?
-: Well that's wrong because
there's nothing in the history or the context
or the text of the Adamson Act that suggested
that Congress intended to forever bar states
from regulating with respect to the wage and hours.
-: When was the Adamson Act passed? You remember?
-: 1916.
And were there minimum wage statutes at that time?
-: At that time, the Fair Labor Standards Act
had not been passed.
The Fair Labor Standards Act I think was passed in 1938.
So overtime laws were not pervasive
if at all existent at that time.
And so it's one thing for the Sixth and Seventh Circuit
to say, well they're gonna be left
to private negotiations over wages
after this temporary freeze.
It is an extraordinary and quite a different thing
to say that Congress intended to bar states
forever from regulating with respect
to the wage and hours of railroad workers.
-: And did the Seventh Circuit address the ICCTA?
-: It did not, it cited I think the statute,
but it didn't address it with respect
to the express preemption provision.
Now, here's the test for field preemption.
You must find that Congress has
a clear and manifest intent to forever bar
states from regulating with respect to the wages
of railroad workers.
And there simply isn't that clear signal from Congress.
If Congress intended to bar states
from regulating with respect to the wages
and hours of railroad workers,
it could have easily said so at any point.
It could have included that in the Adamson Act
or any other statute.
But it hasn't done that. And beyond that-
-: Before, I'd like you to address
the exemption for local transportation.
'Cause if you lose the first one,
you still have the possibility of getting it within here.
So tell me why your opposing counsel's wrong
that MassDOT doesn't provide transportation
so this doesn't apply.
-: MassDOT's not cited in our complaint.
-: So just tell me how you meet,
the term local government authority
includes a political subdivision of a state and authority,
blankety-blank, includes a person or contract,
just tell me how you meet this definition here.
-: Of course, your Honor.
So one of the projects that,
there's actually additional language
in the statute that relates to local projects
that I think is helpful and that's A2A.
The STB doesn't have jurisdiction over transportation
that isn't part of the Interstate Rail Network.
So one of the projects alleged here
was a local commuter rail project
that was intended to connect Boston
to southeast Massachusetts.
So it's a local, the intent-
-: Are you talking about the Southeast Rail project?
Moeslinger: Correct.
-: Okay.
-: And so the intent of that project is to
provide local commuter rail service
between Boston and Southeast Massachusetts.
-: But I'm confused again.
Again, I understand the complaint's bare bones,
but the complaint says he weighs rail.
Isn't that rail gonna be used?
That rail's gonna be used for any train
that goes on those tracks, right?
He's not been hired to work on the Southeast rail project.
He's been hired to put rail down, right?
-: Well, your Honor, we're at the pleading stage
and what we've alleged is that it was
a local community rail project.
There are no facts from which the court could draw
the conclusion that the rails are gonna be used
for some interstate purpose.
Justice Kafker: Right but you're-
-: We can't infer that freight is gonna be carried
on the same rails?
-: With respect to that project, I don't believe so.
-: Even though you say in your complaint,
you talk about their integrated freight and rail, sir.
Again, it's artfully done,
but I don't know if you've done enough.
You've avoided problems but I can't tell
if you've given specifics enough.
-: I wasn't seeking to avoid problems,
I was seeking to allege the facts
as we understood them from our client.
-: They're kind of minimal, so.
-: I understand but the pleading standards
are exceedingly low and we have to state a claim for relief.
What we've alleged is that at least with respect
to one project,
that it was a local commuter rail project.
That would be-
-: So tell me how the southeast,
how this particular contract meets that definition.
Moeslinger: Sure.
-: Based on the complaint.
-: Right, so what we've alleged is that
the defendant contracted with
the Commonwealth of Massachusetts.
This was one of the projects.
I think it's reasonable to infer that
commuter rail service that's being restored
is going to be operated by the
Commonwealth of Massachusetts.
-: So just again, to get into the specific language,
it includes a person or entity that
contracts with a local government authority
to provide transportation service.
You're saying that Massachusetts
provides transportation services?
Is that how you meet this?
You're contracting with Massachusetts
and Massachusetts provides the transportation services?
-: Yes, your Honor.
So the Commonwealth of course,
is made up of a number of political subdivisions,
including the MBTA and DOT, et cetera.
So that is why we've alleged that they contracted
with the Commonwealth to restore commuter rail service.
-: So even if a commuter rail company
is the actual one that's providing the services,
you feel that you've alleged enough to cover that?
-: Well, sure.
So again, I think you cited to this portion of the statute
an entity that contracts with the government agency as well.
It is considered to be-
-: Right, but the government agency
has to be providing the transportation services.
-: Sure.
I think you can draw a reasonable inference
from the complaint that if a company contracts
with the Commonwealth of Massachusetts
to restore commuter rail service in Massachusetts,
that it's going to be operated
by the Commonwealth of Massachusetts.
-: Does anybody have any other questions?
Justice Kafker: No.