4. In MOORE v. CHESAPEAKE & OHIO RAILWAY CO., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755 (1934), plaintiff brought an action under Kentucky’s Employer Liability Act, which barred an affirmative defense for contributory negligence or assumption of risk if defendant failed to meet state or federal safety requirements. Plaintiff alleged defendant’s failure to comply with the Federal Safety Appliance Act. The Supreme Court found that federal question jurisdiction did not exist:

[A] suit brought under the state statute which defines liability to employees who are injured while engaged in intrastate commerce, and brings within the purview of the statute a breach of the duty imposed by the federal statute, should [not] be regarded as a suit arising under the laws of the United States and cognizable in the federal court in the absence of diversity of citizenship.

Id. at 214 15, 54 S.Ct. at 406, 78 L.Ed. at 763. Professor Freer has pointed out that plaintiff

“raised the federal issue as a way to rebut an anticipated defense.” Freer,Of Rules and Standards: Reconciling Statutory Limitations on “Arising Under” Jurisdiction, 82 Ind. L.J.

309, 326 (2007). If that is so, could the Supreme Court have rejected federal jurisdiction in Moore under the Mottley rule?