          United States Court of Appeals
                     For the First Circuit

No. 16-2171

    CSX TRANSPORTATION, INC.; CSX INTERMODAL TERMINALS, INC.;
      NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak;
               SPRINGFIELD TERMINAL RAILWAY COMPANY,

                     Plaintiffs, Appellees,

                               v.

  MAURA HEALEY, in her official capacity as Attorney General of
                the Commonwealth of Massachusetts,

                      Defendant, Appellant,

    TRANSPORTATION DIVISION OF THE INTERNATIONAL ASSOCIATION OF
  SHEET METAL, AIR, RAIL AND TRANSPORTATION WORKERS; MECHANICAL
 DIVISION OF THE INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR,
     RAIL AND TRANSPORTATION WORKERS; BROTHERHOOD OF LOCOMOTIVE
      ENGINEERS AND TRAINMEN; BROTHERHOOD OF MAINTENANCE OF WAY
      EMPLOYES DIVISION/IBT; BROTHERHOOD OF RAILROAD SIGNALMEN;
      INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; NATIONAL
   CONFERENCE OF FIREMEN & OILERS DISTRICT OF LOCAL 32BJ, SEIU,

                           Defendants.


No. 16-2172

    CSX TRANSPORTATION, INC.; CSX INTERMODAL TERMINALS, INC.;
      NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak;
               SPRINGFIELD TERMINAL RAILWAY COMPANY,

                     Plaintiffs, Appellees,

                               v.

   TRANSPORTATION DIVISION OF THE INTERNATIONAL ASSOCIATION OF
  SHEET METAL, AIR, RAIL AND TRANSPORTATION WORKERS; MECHANICAL
 DIVISION OF THE INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR,
    RAIL AND TRANSPORTATION WORKERS; BROTHERHOOD OF LOCOMOTIVE
    ENGINEERS AND TRAINMEN; BROTHERHOOD OF MAINTENANCE OF WAY
    EMPLOYES DIVISION/IBT; BROTHERHOOD OF RAILROAD SIGNALMEN;
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; NATIONAL
  CONFERENCE OF FIREMEN & OILERS DISTRICT OF LOCAL 32BJ, SEIU,

                     Defendants, Appellants,

  MAURA HEALEY, in her official capacity as Attorney General of
                the Commonwealth of Massachusetts,

                           Defendant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                   Lynch, Lipez, and Kayatta,
                         Circuit Judges.


     Douglas S. Martland, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, and Pierce O.
Cray, Assistant Attorney General, were on brief, for the
Commonwealth appellant.
     Michael S. Wolly, with whom Zwerdling, Paul, Kahn & Wolly,
P.C., Richard S. Edelman, Mooney, Green, Saindon, Murphy and Welch
PC, Erika A. Diehl-Gibbons, Kevin C. Brodar, and SMART-TD were on
brief, for the union appellants.
     Donald J. Munro, with whom Anthony J. Dick and Jones Day were
on brief, for the appellees.
     M. Patricia Smith, Solicitor of Labor, United States
Department of Labor, G. William Scott, Associate Solicitor,
Elizabeth Hopkins, Counsel for Appellate and Special Litigation,
Melissa Moore, Attorney, Plan Benefits Security Division, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, United
States Department of Justice, Civil Division, Alisa B. Klein,
Attorney, Appellate Staff, Civil Division, Lindsey Powell,
Attorney, Appellate Staff, Civil Division, and Carmen M. Ortiz,
United States Attorney, on brief for the United States as amicus
curiae in support of the appellants.
June 23, 2017
            KAYATTA, Circuit Judge.      In 2014, Massachusetts voters

enacted by plebiscite the Massachusetts Earned Sick Time Law

("MESTL").    2014 Mass. Legis. Serv. ch. 505 (West).         The law

requires most employers with eleven or more employees to provide

"[e]arned paid sick time" for a variety of reasons, including

absence from work due to illness.           Mass. Gen. Laws ch. 149,

§ 148C(a)-(c).    The question posed by these appeals is whether

application of the MESTL to interstate rail carriers that employ

workers in Massachusetts is preempted by the Railroad Unemployment

Insurance Act ("RUIA"), 45 U.S.C. §§ 351-369.        That federal law

requires interstate rail carriers to bear the cost of an insurance

program for employees who miss work on account of sickness and are

not   otherwise   compensated   during    their   absence.   See   id.

§ 352(a)(1)(B). The RUIA states that its provision for the payment

of sickness benefits is "exclusive," and that no person employed

by an interstate rail carrier "shall have or assert any right . . .

to sickness benefits under a sickness law of any State."           Id.

§ 363(b).

            For the following reasons, we agree with the district

court that the RUIA certainly preempts some parts of the MESTL as

applied to employees of interstate rail carriers.      We nevertheless

remand for further consideration of whether other parts of the

Massachusetts law that are not within the preemptive reach of the




                                - 4 -
RUIA, and are not otherwise preempted by another federal law, might

still be applied to interstate rail carriers.

                                            I.

                                            A.

              As originally enacted in 1938, the RUIA mandated that

interstate rail carriers fund an insurance system that provides

partial wage replacement, known as "unemployment benefits," to

covered   employees      who    are    not    working     but   who    are   able   and

available to work.           See Act of June 25, 1938, ch. 680, §§ 1(k),

2(a), 52 Stat. 1094, 1096 (codified as amended at 45 U.S.C.

§§ 351(k)(1), 352(a)(1)(A)).               In 1946, Congress added to the RUIA

a   mandate    that    interstate      rail       carriers   also     fund   "sickness

benefits" to provide a minimum level of wage replacement for

employees unable to work due to sickness.                    See Act of July 31,

1946, ch. 709, §§ 301–07, 60 Stat. 722, 735-37 (codified at 45

U.S.C. §§ 351(h)–(i), (k)(2), (l), 352(a), (c), (f)).

              Adding   sickness       benefits       to   the   statute       required

Congress to address a series of questions. Who was covered? Which

conditions qualified as a sickness?                 When did the employee become

eligible for sickness benefits?              What was the amount and duration

of the benefits?        How and to what extent must the employer fund

the   benefits?        The    text    of    the    RUIA   answers     each   of   these

questions.     As generally applicable to most employees, it requires

the payment of "sickness benefits" for "each day of sickness after


                                           - 5 -
the 4th consecutive day of sickness in a period of continuing

sickness."1    45 U.S.C. § 352(a)(1)(B)(i).        A "day of sickness"

means "a calendar day on which because of any physical, mental,

psychological, or nervous injury, illness, sickness, or disease

[the employee] is not able to work."        Id. § 351(k)(2).     It also

encompasses, "with respect to a female employee, a calendar day on

which, because of pregnancy, miscarriage, or the birth of a child,

(i) she is unable to work or (ii) working would be injurious to

her health."       Id.   The only added criteria defining "day of

sickness" are that a "day of sickness" does not include:              (1) a

day   on   which   "remuneration   is   payable   or   accrues   to    [the

employee]," or (2) a day of unpaid absence not documented in

accordance "with such regulations as the [Railroad Retirement]

Board may prescribe."     Id.   In other words, the employee gets no

wage replacement if the employee is collecting payment for services

anyhow, or if the employee does not document the claim for sickness

benefits in accordance with regulations established by the Board

that administers these benefits.

            These decisions by Congress established only the minimum

level of benefits that must be paid.       Employers remained free to

provide benefits to sick workers sooner, to continue benefits



      1In certain circumstances, the statute imposes a one-week
waiting period such that no benefits are payable for the employee's
first seven days of sickness. 45 U.S.C. § 352(a)(1)(B)(ii).


                                   - 6 -
longer, or to pay benefits at higher rates.           The employees, in

turn, remained free to bargain for better benefits.

                                   B.

          Having mandated a nationwide, minimum level of sickness

benefits for this quintessentially interstate business, Congress

also exercised its power under the Supremacy Clause to preempt

certain state laws.   The text of the preemption provision states

as follows:

          By enactment of this chapter the Congress
          makes exclusive provision for the payment of
          unemployment    benefits    for     unemployment
          occurring after June 30, 1939 and for the
          payment of sickness benefits for sickness
          periods after June 30, 1947, based upon
          employment (as defined in this chapter). No
          employee shall have or assert any right to
          unemployment benefits under an unemployment
          compensation law of any State with respect to
          unemployment occurring after June 30, 1939, or
          to sickness benefits under a sickness law of
          any State with respect to sickness periods
          occurring after June 30, 1947, based upon
          employment (as defined in this chapter). The
          Congress finds and declares that by virtue of
          the enactment of this chapter, the application
          of State unemployment compensation laws after
          June 30, 1939, or of State sickness laws after
          June 30, 1947, to such employment, except
          pursuant to section 362(g) of this title,
          would constitute an undue burden upon, and an
          undue   interference    with    the    effective
          regulation of, interstate commerce.

Id. § 363(b).

          The   parties   agree   that    the   foregoing   language,   as

applied today to interstate rail carriers, plainly preempts any



                                  - 7 -
mandate to provide "sickness benefits under a sickness law of any

State . . . based upon employment."         Id.      Their disagreement

centers on whether the employee benefits mandated by the MESTL

qualify as such.    Before the MESTL took effect, several interstate

rail carriers sought assurance from the Massachusetts Attorney

General that the law would not apply to their railroad employees

working in Massachusetts.    The Attorney General "declined to offer

any assurances" about the relationship between the state and

federal laws.

          Facing "a substantial threat of imminent prosecution,"

the carriers filed the present action against the Attorney General

seeking a declaratory judgment that the MESTL is preempted by the

RUIA as well as by the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-

165, and the Employee Retirement Income Security Act ("ERISA"), 29

U.S.C. §§ 1001-1461.    The district court permitted several unions

representing    Massachusetts   railroad   workers    to    intervene   as

defendants.     It also accepted a "statement of interest" filed by

the United States in support of the defendants.            In due course,

the district court granted summary judgment in favor of the

plaintiff carriers, holding that the RUIA preempted the MESTL in

its entirety as applied to the plaintiff carriers. In so disposing

of the action, the district court did not reach the plaintiffs'

alternative claims that either the RLA or ERISA preempted the

MESTL, which the parties had agreed to litigate, if necessary, in


                                 - 8 -
a second phase of the action.            Nor did it expressly consider

whether any portions of the MESTL might be saved by severance.

Following entry of final judgment in favor of the plaintiff

carriers,    the    Attorney   General    and   the    union   intervenors

(collectively, "appellants") timely appealed.

                                   II.

            We start with the text of the MESTL and ask whether it

provides "sickness benefits under a sickness law of any State" as

that phrase is used in 45 U.S.C. § 363(b).            In its most relevant

part, the MESTL states:

            (c) Earned sick time shall be provided by an
            employer for an employee to:
                   (1) care for the employee's child,
                   spouse, parent, or parent of a spouse,
                   who is suffering from a physical or
                   mental illness, injury, or medical
                   condition that requires home care,
                   professional medical diagnosis or care,
                   or preventative medical care; or
                   (2) care for the employee's own physical
                   or mental illness, injury, or medical
                   condition that requires home care,
                   professional medical diagnosis or care,
                   or preventative medical care; or
                   (3) attend the employee's routine medical
                   appointment    or   a   routine   medical
                   appointment for the employee's child,
                   spouse, parent, or parent of spouse; or
                   (4) address the psychological, physical
                   or    legal    effects   of    domestic
                   violence . . . .

Mass. Gen. Laws ch. 149, § 148C(c)(1)-(4).             Qualified employees

may earn and use up to forty hours of sick time per year, id.


                                  - 9 -
§ 148C(d)(4), (6), and those at firms of eleven or more employees

are entitled to payment for the sick time they use at their normal

hourly      rate   through    their        usual    payroll       system,   id.

§ 148C(a),(d)(4),(d)(7).

             We observe at the outset that the four quoted subsections

of § 148C(c) of the MESTL recognize several different reasons for

which paid sick time must be provided.             One of those reasons, as

specified in subsection (c)(2), is the need to "be absent from

work . . . to . . . care for the employee's own physical or mental

illness, injury, or medical condition."                 Id. § 148C(b)-(c)(2).

Plainly a benefit paid for such a reason is a benefit that helps

protect an employee from economic loss resulting from a sickness.

Other uses (such as, for example, addressing the legal effects of

domestic violence) seemingly have nothing to do with employee

sickness.     We will therefore begin our analysis by focusing on

MESTL subsection (c)(2).

                                      A.

             Crafting   subsection    (c)(2)       of    the    MESTL   required

answering the questions addressed by Congress in creating the

RUIA's sickness benefits.       Who was covered?               Which conditions

qualified as a sickness?       When did the employee become eligible

for sickness benefits?       What was the amount and duration of the

benefits?     And so on.   On many such questions, the MESTL reflects

different answers than does the RUIA.                   Rather than requiring


                                 - 10 -
employers to fund an insurance program that in turn pays workers,

the MESTL requires the employer to pay the worker directly.               The

MESTL also mandates payment starting on the very first hour of

absence due to sickness at one hundred percent of regular pay.

See id. § 148C(a),(d)(1).        But earned paid sick time under the

MESTL   is    limited   to   forty    hours   per     calendar   year.     Id.

§ 148C(d)(4),(7).       The upshot:     as compared to the RUIA sickness

benefits, the MESTL sick time is a larger benefit in the short run

but does not cover the longer run.

             At first blush, and even more so after a careful read,

it seems quite plain that subsection (c)(2) of the MESTL provides

"sickness benefits under a sickness law of [a] State," and is

therefore expressly preempted.          Certainly a "physical or mental

illness, injury, or medical condition" is a sickness, and certainly

"paid sick time" is a benefit.          Nevertheless, the appellants and

the United States as amicus curiae advance several arguments in

support of their reading of the preemption clause as a narrow

provision with a meaning that does not encompass the type of

benefits     mandated   by   subsection     (c)(2).      We   consider   those

arguments, moving from simple to complex.

                                       B.

                                       1.

             The appellants first try an ordinary meaning argument.

See In re Hill, 562 F.3d 29, 32 (1st Cir. 2009) ("We assume that


                                     - 11 -
the words Congress chose, if not specially defined, carry their

plain and ordinary meaning.").            Citing to Roberts' Dictionary of

Industrial Relations, they contend that the term "sick benefit" is

customarily       understood    to   mean      only     "short-term      disability

insurance," and not "sick pay" or "sick leave." Harold S. Roberts,

Roberts' Dictionary of Industrial Relations (4th ed. 1994).                      But

the pertinent term in the RUIA is "sickness benefits," not "sick

benefit."      And     the   pertinent    legislation       predates     the   cited

dictionary by half a century.         The 1998 and 2011 glossaries cited

by the union intervenors defining "short-term disability plan" and

"sick leave" suffer from the same anachronistic defect.                    So this

argument falls short.

                                         2.

            The    Attorney     General       next     undertakes   an    elaborate

attempt to find in the text of the RUIA a narrow technical reading

of "sickness benefits" that excludes the type of benefit that the

MESTL mandates in subsection (c)(2).                   The resulting, principal

textual argument has eight steps:             The word "benefits" as used in

the RUIA is a defined term that "means the money payments payable

to an employee as provided in this chapter, with respect to his

unemployment      or   sickness,"    45       U.S.C.    §   351(l)(1)     (emphasis

supplied); the chapter provides for payments in the form of partial

wage replacement when an employee is unable to work, and receiving

no earned income, due to sickness, id. § 352(a)(1)(B)(i), (a)(2);


                                     - 12 -
this interpretation of "money payments . . . as provided in this

chapter" is confirmed by the definition of "day of sickness," which

excludes any day on which the employee receives remuneration from

the employer, id. § 351(k)(2); the benefit mandated by the MESTL

is not a partial wage replacement for when an employee is unable

to work, and receiving no earned income, due to sickness; this

interpretation is confirmed by federal law's designation of the

MESTL benefit as "remuneration," 20 C.F.R. § 322.2(c); any day the

MESTL benefit is paid is thus not a "day of sickness"; that benefit

is therefore not a "money payment . . . as provided in th[e]

chapter"; and so it is not a "sickness benefit."

             We react to this reasoning with considerable skepticism

concerning    the    first   step:     that   "benefits"      as   used   in   the

preemption clause means only "benefits" as artificially defined in

45 U.S.C. § 351.        See Yates v. United States, 135 S. Ct. 1074,

1082   (2015)    ("We   have   several   times     affirmed    that     identical

language   may      convey   varying   content     when   used     in   different

statutes, sometimes even in different provisions of the same

statute.").      The    definition     provision    itself    warns     that   the

supplied definition of "benefits" does not apply "in phrases

clearly designating other payments."          45 U.S.C. § 351(l)(1).           The

preemption clause uses just such a phrase, designating as the

target of its preemptive force "sickness benefits under a sickness

law of any State." Id. § 363(b) (emphasis supplied). Furthermore,


                                     - 13 -
the preemption clause seems to be express in specifying when it

intends a word of common usage to be understood only as defined in

the RUIA, four times using the phrase "as defined in this chapter"

to modify terms that are given specific meanings in § 351.                 Id.

            The full text of the preemption clause reinforces our

skepticism.    In explaining its exercise of preemptive force, the

clause states that "application . . . of State sickness laws . . .

to such employment . . . would constitute an undue burden upon,

and   an   undue   interference    with   the   effective    regulation      of,

interstate commerce."       Id.     In so stating, Congress found it

natural to avoid altogether any use of the word "benefits" upon

which the Attorney General's textual argument against preemption

depends.      The    Attorney     General   makes   no      claim   that     the

Massachusetts law is not, in relevant part, "a sickness law of a[]

State."     It would therefore be quite remarkable for Congress,

having declared that such a law impedes effective regulation of

interstate commerce, to have nevertheless excluded it from the

scope of preemption by use of the roundabout textual path that the

Attorney General has sought to discern.

            Tellingly, if the Attorney General were correct that the

RUIA preempts only state sickness laws that mandate "benefits"

precisely as that term is defined in § 351, then it would follow

that no reasonably plausible state law would be preempted.                       As

summarized above, the defined term "benefits" is limited to money


                                   - 14 -
payments for "days of sickness."      And while the Attorney General

is correct that the RUIA's definition of "day of sickness" excludes

any day on which remuneration is paid, it also excludes any day

for which timely documentation as required by Railroad Retirement

Board regulations is not filed.           Id. § 351(k)(2).       So if the

Attorney General's textual reading were correct, no state law would

be   preempted   unless,   implausibly,    it   mandated   the   filing    of

Railroad Retirement Board documentation.        And the Attorney General

ultimately concedes that her interpretation would limit the scope

of the preemption clause "to those state laws . . . that create

short-term disability insurance programs that would replicate the

RUIA's and hence result in duplicate liability for the Railroads."

           This interpretation does not comport with the statute's

stated purpose of protecting interstate rail regulation from the

burdens of state sickness law.      As the United States explains in

its brief, the legislative history of § 363(b) and the thrust of

the Act's pertinent sections are clear on at least one point:             the

RUIA was enacted to ensure "a uniform federal scheme."            See H.R.

Rep. No. 75-2668 at 1 (1938) ("Congress has long recognized that

a number of problems peculiar to the railroad industry necessitate

separate treatment of that industry in various aspects, rather

than . . . leaving it subject to varied State laws, and to meet

that necessity has enacted such legislation as [the RUIA].").

Given that aim, it would have been nonsensical to preempt only


                                 - 15 -
state replicas of the RUIA while allowing dozens of divergent

schemes to proliferate.     Instead, as is customarily the case, it

is the prospect of a clash between differing schemes that most

naturally precipitates preemption.         See, e.g., Tobin v. Fed. Exp.

Corp., 775 F.3d 448, 455 (1st Cir. 2014) (applying preemption

clause of Airline Deregulation Act to avoid subjecting national

carrier to patchwork of state regulations in contravention of

clause's purpose); Danca v. Private Health Care Sys., Inc., 185

F.3d 1, 7 (1st Cir. 1999) (same with respect to ERISA and multi-

jurisdiction employer).     And even if Congress were concerned only

about threats from copycats (such as disparate interpretation,

disparate enforcement, or duplicate liability), leaving the door

open to almost-but-not-quite copycats invites those same threats.

          Nor are we persuaded by the Attorney General's second

and related textual argument based on the term "sickness periods."

Recall that the RUIA, pursuant to its preemption clause, "makes

exclusive provision . . . for the payment of sickness benefits for

sickness periods after June 30, 1947."             45 U.S.C. § 363(b).

According to the Attorney General, although the term "sickness

periods" is not defined in the statute, we should construe it to

mean times when the employee both is unable to work due to sickness

and is not receiving any remuneration from the employer.            Working

from   that   assumption,   the    Attorney    General   contends     that,

"[b]ecause [MESTL] sick pay by definition is pay from the employer,


                                  - 16 -
the necessary 'sickness periods' do not exist, and preemption

cannot occur."      The United States presses the same argument.                  In

doing so on behalf of the Department of Labor, and not the Railroad

Retirement Board, which administers the RUIA, see id. § 362(l),

the United States makes no claim to any deference due.                   In any

event, this argument fares no better than the "sickness benefits"

argument we have already rejected.             The appellants offer no sound

basis for conflating "sickness periods" with the specifically

defined     term    "period      of    continuing     sickness,"       see        id.

§ 352(a)(1)(B)(iii), and they fail to refute the natural reading

of the phrase "for sickness periods after June 30, 1947" as simply

providing an effective date for preemption.

            The Attorney General's final stab at using the statutory

language    to     limit   the   scope     of    preemption    relates       to    a

reimbursement provision in the Act.              The provision empowers the

Railroad Retirement Board to reimburse a state that provides

sickness benefits to workers if the state takes railroad employment

into account in determining whether workers are eligible for state

sickness benefits or in setting the amount of such benefits.                      Id.

§ 362(g).     In those circumstances, "the Board is authorized to

reimburse such State such portion of such . . . sickness benefits

as the Board deems equitable."            Id.     According to the Attorney

General,    this    situation     could    never    arise     unless   Congress

"anticipate[d]      the    continued      existence    of     State    'sickness


                                      - 17 -
benefits' and State 'sickness compensation law[s]' as applied to

railroads."

             This point does not carry the force assigned to it by

the Attorney General.        Section 362(g) deals with the "problem of

handling those workers who move between the railroad industry and

other employment." Hearings Before a Subcommittee of the Committee

on Interstate and Foreign Commerce on H.R. 10127, 75th Cong. 100

(1938) (statement of Horace Bacus); see also H.R. Rep. No. 75-

2668,   at   11   (1938)    (explaining   that   §    362(g)   is   a    "special

provision . . . designed to overcome inequities that may arise in

the cases of persons regularly employed in the railroad industry

and also elsewhere").        So, for example, a person might work the

summer months for a railroad, and then the winter for a local

warehouse. If the worker becomes ill or injured during the winter,

the state may count all of his or her days of employment in

determining eligibility for state-provided benefits.                There is no

suggestion, though, that the state itself may impose on the rail

carriers the cost of any benefits paid.              Rather, § 362(g) grants

to the Railroad Retirement Board the discretion to reimburse the

state in such situations.          The very fact that this discretion and

power   is   granted   to    the    federal   board   by   federal      law   thus

reinforces the fact that the federal law does not allow states of

their own accord to impose on interstate rail carriers, even

indirectly, the burden of providing state benefits.                     In short,


                                     - 18 -
nothing in § 362(g) suggests that there exists any authority

outside the "exclusive" reach of federal law for mandating the

provision of sickness benefits by interstate rail carriers.           And

when reimbursements are in fact paid out, they are specifically

"included within the meaning of the word 'benefits' as used in

[the RUIA]," 45 U.S.C. § 362(g), thereby expanding rather than

contracting the scope of "sickness benefits" as the preempted

domain.

                                  3.

           The    appellants   next     claim    that   various   Railroad

Retirement Board publications demonstrate that the particular

sickness benefits provided under the RUIA do not include employer-

provided sick pay or sick leave.      For example, the appellants cite

a publication noting that "[s]ickness benefits are not payable for

any day for which you receive sick pay from your employer."

(Quoting U.S. Railroad Retirement Board, Sickness Benefits for

Railroad         Employees,      Form           UB-11      4       (2012),

https://www.rrb.gov/sites/default/files/2016-10/ub11.pdf.)           This

sentence must mean, they say, that "sick pay" is not a "sickness

benefit" and that railroad workers can receive both.              But the

quoted language simply describes how the RUIA sickness benefits

work; unsurprisingly, employees do not receive the benefits when

they are paid for their day off work.       There is no reason to think

the preemption clause's use of "sickness benefits under a sickness


                                - 19 -
law of any State" imports this exclusion.               See 45 U.S.C. § 363(b).

Tellingly, the MESTL benefits likewise need not be paid if the

employer is already paying the employee pursuant to, for example,

a sick leave plan.           See Mass. Gen. Laws ch. 149, § 148(C)(j)-(k).

The Board's recognition that a railroad worker might be eligible

for both sick pay and RUIA benefits absent some coordination of

benefits does not require a reading of the preemption clause that

places a state-mandated continuation of wages due to sickness

outside the clause's scope.            In fact, the union intervenors point

to    another    Board       publication       that   defines      "sick    pay"   as

"compensation paid under a plan or agreement," not a state mandate.

See   U.S.     Railroad      Retirement    Board,     Rail   Employer       Reporting

Instructions, Part IV - Particular Types of Compensation Payments,

Chapter             3:         Sick         Pay                    1          (2012),

https://www.rrb.gov/sites/default/files/2017-06/RERI-

Part%20IV_CH%203.pdf.

                                          4.

             Implicitly acknowledging the problems with their effort

to    derive    a        textually    restricted      definition       of   "sickness

benefits," the appellants and their amicus at times abandon any

textual argument in describing what is preempted.                       They argue,

instead, that RUIA preemption applies only to state benefits that

are "similar" or "comparable" to, or "of the type provided by[,]

the RUIA."      Of course, in making this version of their argument,


                                        - 20 -
the appellants and their amicus are adrift:     there is no anchor in

the text of the preemption clause for limiting in this manner the

type of state-mandated sickness benefits subject to preemption.

          They moor, instead, to the context and purpose of the

preemption clause.   This is a fair point, at least conceptually.

In construing a statutory provision that expressly preempts state

law, we do examine its purpose and context.      See Medtronic, Inc.

v. Lohr, 518 U.S. 470, 485-86 (1996).    Such an examination in this

case, though, simply reinforces our conclusion that, even if we

limit the preemptive reach of § 363(b) to state sickness benefits

that are "similar" or "comparable" to those provided by the RUIA,

the paid sick time mandated by subsection (c)(2) of the MESTL would

fit comfortably within that limitation.

          The MESTL addresses the exact same problem that the

RUIA's   provision   of   sickness   benefits   addresses:    absent

legislation or agreement, an employer is not required to bear the

cost of providing any form of income to an employee who is not

working due to illness.     The MESTL also settles upon a similar

type of solution:    make the employer provide a source of income,

subject to various conditions and limitations.      In this respect,

the appellants and their amicus overlook the fact that the status

quo ante, i.e., the state of affairs before enactment of either

law at issue, is that whether the employee receives pay during an

absence due to sickness hinges on the employment agreement.       If


                               - 21 -
that agreement requires full pay, neither the RUIA nor the MESTL

mandates anything more.          Conversely, if no pay is required, then

the absence generally counts as a "day of sickness" under the RUIA,

and as a day on which the MESTL requires payment of earned paid

sick time.    So, in this respect, the benefits are much more alike

than the appellants claim.

             There   are,   of   course,   real   differences   between   the

respective benefits.        As we have explained, the formula used to

calculate the onset, duration, and amount of benefits, as well as

the manner in which the employer funds the benefits, differ.              The

Attorney General concedes that such differences do not defeat

preemption as long as the state sickness law mandates an "RUIA-

like short-term disability insurance" as opposed to some "other

form[] of benefits."        But it is unclear how, where, or why the

Attorney General draws the line between those schemes.                    The

Attorney General seems to argue that the dispositive factor for

preemption purposes is the method of payment:            indirect employer

payments through an insurance fund are preempted, but direct

employer payments through a payroll system are not.              We are not

persuaded that Congress cared only about the mechanism by which

burdens were placed on the employer to benefit the employee, and

not about the burdens themselves. After all, the statute expressly

refers to Congress's concern about the burdens.             See 45 U.S.C.

§ 363(b).    Nor are we persuaded that Congress crafted a preemption


                                     - 22 -
clause that a state could readily sidestep merely by burdening the

employer more directly.       See Daboub v. Gibbons, 42 F.3d 285, 290

(5th Cir. 1995) ("[I]f the language of the act could be so easily

circumvented, the preemption provision would be useless, and the

policies behind a uniform . . . statute would be silenced.").

            For these reasons, among others, we also reject efforts

by the United States to use the "historical context in which the

amendments were enacted" to limit the scope of the preemption

clause.     According to the United States, when Congress added

sickness benefits to the RUIA in 1946, the only existing state

sickness laws required "a similar form of insurance for employees

unable to work for an extended period on account of illness or

injury."    Because no state had passed "an earned-sick-time law" at

that time, the United States says, it therefore follows that

Congress had in mind only the existing state sickness laws when it

amended the preemption clause to bar "any right . . . to sickness

benefits under a sickness law of any State."        45 U.S.C. § 363(b).

Nothing in the text, however, indicates that Congress meant to

preempt all contemporaneous state sickness laws and their ilk, but

not any new variations.        To the contrary, Congress stated its

intent to "make[] exclusive provision . . . for the payment of

sickness benefits."     Id.

            The Attorney General points out that the heading of the

RUIA's     preemption   provision,   "Effect   on   State   unemployment


                                  - 23 -
compensation laws," was not amended when the provision itself was

amended.    As we explained earlier, Congress amended the RUIA in

1946 to add sickness benefits to the unemployment benefits it had

mandated in 1938.        The Attorney General argues that, because

Congress made no revisions to the heading, it meant for the heading

to limit the preempted "sickness benefits" to only those sickness

benefits mandated by "unemployment compensation laws."                  But the

text of the clause makes plain that Congress knew how to limit

preemption to unemployment compensation laws, as it expressly did

in the context of the original benefits.           See id. ("No employee

shall have or assert any right to unemployment benefits under an

unemployment compensation law of any State . . . ." (emphasis

supplied)).      Congress   chose    different    words    to    describe    the

preempted domain for sickness benefits.             Id.         We reject the

Attorney General's effort to seek refuge from the force of the

statutory text and purpose in the short-hand heading.              See Lawson

v. FMR LLC, 134 S. Ct. 1158, 1169 (2014) ("[T]he headings here are

'but a short-hand reference to the general subject matter' of the

provision, 'not meant to take the place of the detailed provisions

of the text.'" (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.

Co., 331 U.S. 519, 528 (1947))).

            We also reject the Attorney General's claim that the

MESTL does not tread "within the domain of 'sickness benefits'

preempted   by   [the   RUIA]."     Application    of     the   MESTL   to   the


                                    - 24 -
plaintiff     interstate   rail   carriers     would   directly   alter   the

balance struck by the RUIA in setting a minimum level of costs

that must be borne by such carriers to offset partially the

hardships to employees caused by an inability to work due to

sickness.

                                        5.

             As evidenced by the foregoing discussion, we find it

unnecessary to resolve the parties' debate concerning the nature

of any interpretative presumptions that might guide our analysis,

in particular the presumption against preemption.           See Medtronic,

518 U.S. at 485 ("[B]ecause the States are independent sovereigns

in our federal system, we have long presumed that Congress does

not cavalierly pre-empt state-law causes of action.").              Compare

Wyeth v. Levine, 555 U.S. 555, 565 n.3 (2009) (rejecting argument

that presumption against preemption does not apply in areas of

lasting federal regulation), with Brown v. United Airlines, Inc.,

720   F.3d   60,   68   (1st   Cir.    2013)   (rejecting   application   of

presumption against preemption in air-transportation context due

to "both longstanding and pervasive" federal regulation in that

field).      The textual, contextual, and purpose-related cues all

point sufficiently strongly in the direction of finding that

§ 363(b) preempts subsection (c)(2) of the MESTL so as to overcome

any presumption that may apply. See Cuomo v. Clearing House Ass'n,




                                      - 25 -
L.L.C., 557 U.S. 519, 534 (2009) (finding presumption against

preemption immaterial in light of "plain terms" of federal law).

                                     C.

              Anticipating the possibility that we might agree with

the district court that the RUIA preempts subsection (c)(2) of the

MESTL as applied to interstate rail carriers, the Attorney General

and the union intervenors have asked us in the alternative to

determine whether any or all other sections of the MESTL might

still be applied to such employers.                Resolving this issue of

severability raises three potential questions:            (1) Are any of the

remaining sections of the MESTL themselves preempted by the RUIA?

(2)   Are   any    remaining    sections    that    are   not    so    preempted

nevertheless preempted by either the RLA or ERISA as alleged in

the complaint?     (3) Should any sections of the MESTL be preserved

by severing the preempted sections as applied to interstate rail

carriers?

              The district court did not consider these questions,

perhaps because the Attorney General did not raise severability in

her summary judgment briefing.        But the union intervenors raised

a severability argument in their memorandum below, and they press

severability as an alternative argument on appeal (as does the

Attorney General).     It is, in short, a contention that was raised

below   and    preserved   on   appeal,     certainly     as    to    the   union

intervenors.      Nor do the plaintiff carriers argue otherwise.


                                   - 26 -
          We often hesitate to address in the first instance issues

on which we lack the benefit of a district court's consideration.

See, e.g., United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d

323, 337-38 (1st Cir. 2003) (remanding, after affirming preemption

determination,   for    district   court    to   resolve   "three   selected

issues" where submissions and arguments below adverted to, but did

not focus on, such issues).        Issues can sharpen--or disappear--

when contested and resolved first in the district court.            In this

case, we lack any answers to the three critical questions.              The

need to consider each question, in turn, depends in part on the

answers to the other questions.        For example, were it clear that

the MESTL is not severable, then our decision today would dispose

of the whole case.     Conversely, were it clear that one of the other

federal laws preempted all of the MESTL, there would be no need to

decide severability. There is some chance, too, that an assessment

of all three questions might counsel in favor of certifying the

severability question to the Massachusetts Supreme Judicial Court.

We therefore decline to reach these questions in the context of

the present appeals.

                                    III.

          We hold that the RUIA preempts subsection (c)(2) of the

MESTL as applied to interstate rail carriers that employ workers

in Massachusetts.      We remand for the district court to determine




                                   - 27 -
whether any or all other sections of the MESTL might be applied to

such employers.   Each party shall bear its own costs.

          Affirmed in part, vacated in part, and remanded.




                              - 28 -
