# Amicus Curiae Brief — Norfolk Southern R. Co. v. Shanklin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 344

## Text

9

DEc 16 (BY No. 99-312 DEC 16.199

In the Sup Court of the Gni

NORFOLK SOUTHERN RAILWAY COMPANY,
Petitioner,

Vv.

DEDRA SHANKLIN, INDIVIDUALLY AND AS
NEXT FRIEND OF JESSIE GUY SHANKLIN,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit

BRIEF OF THE PRODUCT LIABILITY ADVISORY
COUNCIL, INC., AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

HUGH F. YOUNG, JR. KENNETH S. GELLER*
Product Liability Advisory CHARLES ROTHFELD
Council, Inc. - CRAIG ISENBERG
1850 Centennial Park Dr. Mayer, Brown & Platt
Suite 510 1909 K Street, N.W.
Reston, VA 2019] Washington, D.C. 20006
(703) 264-5300 (202) 263-3000

* Counsel of Record

QUESTIONS PRESENTED

Amicus will address the following questions:

1. Whether it is appropriate for a court to apply a
presumption against preemption when the governing federal
Statute contains an unambiguous express preemption
provision.

2. Whether the Federal Railroad Safety Act preempts
state tort claims alleging the inadequacy of warning devices
at railroad crossings, when the devices were installed with
federal funds under a project approved by the federal

government.

—— SS

ii
TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................. (I)

TABLE OF AUTHORITIES................. iii
INTRODUCTION AND SUMMARY OF

ek eg OO 1

IEEE ER aa he a oe 3

FEDERAL LAW PREEMPTS STATE TORT
CLAIMS ASSERTING THAT WARNING
DEVICES AT FEDERALLY-FUNDED RAILWAY
GRADE CROSSINGS ARE INADEQUATE ....

A. A “Presumption Against Preemption" Is Not
Appropriate In This Case .............

B. Easterwood Compels Preemption In Cases
Where Federal Funds Have Been Authorized
For The Installation Of Warning Devices At
EE v6 Go keen b 40 eb 86 ec

C. The Goals Behind The FRSA Are Promoted By
Diced. ees Ueesee dene 6 os

DET Sbsc Westie beteceseaseses

ili
TABLE OF AUTHORITIES
Page(s)

CASES
Allis-Chalmers Corp. v. Lueck,

ee Ws SPE & @ 0:4 0:0 ob es Khe ee 4
American Airlines, Inc. v. Wolens,

Sa Ga ae a0 dikes ok web eee 7
Arkansas Louisiana Gas Co. v. Hall,

Gp Was SOG 6 oe tebe dc ondiunwe 12
Armijo v. Atchison, Topeka & Santa Fe Ry. Co.,

87 F.3d 1188 (10th Cir. 1996) .......... 15-16
Brown v. Hotel & Restaurant Employees

& Bartenders Int’! Union Local

FO, GB GB. GG GD cc ccc ce cccceer 4,8
Capital Cities Cable, Inc. v. Crisp,

Gar Gas Ge es ck eae tee ker el 7
Caterpillar Inc. v. Williams,

Ge Ga Se 64's 0 be eRe eee bos 11
Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) .... §
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co..,

Ge Gah CED 2 84 dh ohwsbn aca 12
Cipollone v. Liggett Group, Inc..,

See Dak See 0.0.0 ck theese 3-5, 7-8

Page(s)

CSX Transp., Inc. v. Easterwood,

rr.) Ck sb ka wk we es passim
Elrod v. Burlington N. R.R. Co..,

Sp ee ee eS GED oc dees seeocewes 15
English v. General Elec. Co.,

sn cis oie’ 6 ean CARR R 4,7
FMC Corp. v. Holliday,

Se MD 6b wes oe awk oe bia 2, 5,7
Fidelity Fed. Sav. & Loan Ass'n v.

de la Cuesta, 458 U.S. 141 (1982) ......... 7-8
Free v. Bland,

Sate 2'e.5 5} SO a6 On ON Oe ee 8
Freightliner Corp. v. Myrick,

Pe PEs 4's 6 Sud ecceseesasee 7
Gade v. National Solid Wastes Management Ass'n,

i rt ad Sb ke ee week 88 4-5, 8
Hester v. CSX Transp., Inc..,

61 F.3d 382 (Sth Cir. 1995) ........... 15, 18
Hillsborough County v. Automated Medical

Lab., Inc., 471 U.S. 707 (1985) .......... 4,7

Ingram v. CSX Transp., Inc.,
146 F.3d 858 (11th Cir. 1998).......... 15, 18

Vv

TABLE OF AUTHORITIES — contizued

Page(s)

International Paper Co. v. Ouellette,

See Ge GE 6 6 6 6's 44 echt OKs 19-20
Kennan v. Dow Chem. Co.,

717 F. Supp. 799, 810 (M.D. Fla. 1989) ...... 19
Local 926, Int’! Union of Operating Eng’rs v.

Sanaa, Ge Gs GP GD cc cee sdcesesae 12
Louisiana Pub. Serv. Comm’n v. Federal

Communications Comm’n, 476 U.S. 355

SD Se h'e bat ee ae sb he Pies kre 7
Malone v. White Motor Corp.,

a eae ae ee 3 co a ob cae be ene ae 4,7
Medtronic, Inc. v. Lohr,

See Ws GD. 64.6 ouebeaneseeues 4, 7-8
Michigan Canners & Freezers Ass'n v.

Agricultural Mktg. & Bargaining Bd.,

ae aes ee Ge o wet 64s bee ewok sk odes 20
Morales v. Trans World Airlines, Inc..,

Se Sa SOD Rains os Sd wet eewes 7, 20
New York State Conference of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co..,

Bae We PEE « 6 6. bb bees Oe bb ers 4,7

Norfolk & W. Ry. Co. v. American Train
Dispatchers Ass'n, 499 U.S. 117 (1991) ...... 7

vi

TABLE OF AUTHORITIES — continued

Page(s)

Pilot Life Ins. Co. v. Dedeaux,

SD aos et See, e.g., Gade v. National Solid Wastes Management Ass'n,
505 U.S. 88, 96 (1992) (plurality opinion); Cipollone, 505 U.S. at
545 (opinion of Scalia, J.); Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 208 (1985); Hillsborough County v. Automated Medical
Lab., Inc., 471 U.S. 707, 714 (1985); Brown v. Hotel &
Restaurant Employees & Bartenders Int’! Union Local 54, 468 U.S.
491, 500 (1984); Malone v. White Motor Corp., 435 U.S. 497, 504
(1978).

5

whether state regulation is consistent with the structure and
purpose of the statute as a whole” (Gade, 505 U.S. at 98
(plurality opinion)), an inquiry that “‘begin[s) with the
language employed by Congress and the assumption that the
ordinary meaning of that language accurately expresses the
legislative purpose.’” FMC Corp., 498 U.S. at 57 (1990)
(citation omitted).

Against this background, it is settled that, “‘[i)f the intent
of Congress is clear, that is the end of the matter; for the
court * * * must give effect to the unambiguously expressed
intent of Congress.’” Id. at 57 (quoting Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984) (footnote omitted)). Thus, any presumption
against preemption “dissolves once there is conclusive
evidence of intent to pre-empt in the express words of the
statute itself.” Cipollone, 505 U.S. at 545 (opinion of Scalia,
J.). See generally id. at 544 (“Under the Supremacy Clause,
* * * [the Court’s] job is to interpret Congress’s decrees of
pre-emption neither narrowly nor broadly, but in accordance
with their apparent meaning.”). Indeed, the Court in
Easterwood, after adverting to the presumption against
preemption, proceeded to declare (somewhat inconsistently)
that, “[iJf the statute contains an express pre-emption clause,
the task of statutory construction must in the first instance
focus on the plain wording of the clause, which necessarily
contains the best evidence of Congress’s intent.” 507 U.S.
at 664. It therefore appears that, when Congress has enacted
an express preemption clause, the presumption must yield to
the ordinary tools of statutory interpretation.

Indeed, for a court to apply an interpretive presumption
at the expense of concrete indicia of congressional intent
would depart from the proper judicial role. As a recent
commentator has noted, “the constitutional structure of
federalism does not admit of a general presumption against
federal preemption of state law.” Viet D. Dinh, Reassessing
the Presumption Against Preemption, __ GEO. L.J.

6

(forthcoming 2000) (which has been lodged with the Clerk of
the Court). The Supremacy Clause is not an affirmative grant
of power to Congress; it “simply specifies the constitutional
equivalent of a choice of law rule and gives trumping effect
to federal law.” Jd. at 5. As such, the power to preempt
State law comes not from the Supremacy Clause, but from the
affirmative grants of power in Article I, section 8 of the
Constitution.

Given this constitutional structure, to the extent that
there are questions of constitutional policy in preemption
— questions about the relative power of Congress and of
the state legislatures, “the Danger * * * that the national
would swallow up the State Legislatures,” and the like —
those questions were answered by the framers with the
specific enumerations and limitations of federal
legislative power in Article I and inclusion of the
Supremacy Clause in the Constitution. And to the extent
that other federalism questions remain — the wisdom of
national regulation, the balance between regulatory
uniformity and policy innovations, etc. —- those questions
are, by constitutional design, to be answered by Congress
and, through delegated power, by the executive branch.

But when Congress has legislated consistently with
its delegated and limited powers, the question ceases to
be one about the vertical distribution of powers between
federal and state governments (after all, the Constitution
gave Congress the power to legislate, and Congress has
exercised that power). Rather, the question becomes one
of the horizontal division of federal governmental

_ functions among the three branches. Specifically, the
task for the Court is to discern what Congress has
legislated and whether such legislation displaces
concurrent state law — in short, the task of statutory
construction. If in performing this seemingly neutral task
* * * the Court systematically favors one result to the
other, it either disrupts the constitutional division of

—_ —_— <<

eg —

7

power between federal and state governments or rewrites
the laws enacted by Congress.

Id. at 6-7 (footnotes omitted).

Second, in light of the primacy of congressional intent,
it is not surprising that the presumption against preemption is,
more often than not, simply ignored. To be sure, there are
a fair number of cases in which the Court has recited the
familiar phrases acknowledging the presumption.‘ But there
are numerous preemption decisions in which the Court has
made no mention of the presumption at all. Justice Scalia
has referred to the substantial body of cases in which the
Court “said not a word about ‘a presumption against * * *
pre-emption, * * * that was to be applied to construction of
the text [of a statutory preemption clause].” Cipollone, 505
U.S. at 546 (opinion of Scalia, J.).° In fact, there are a great
many decisions involving express preemption where the Court
has wholly disregarded any presumption against superseding
state law.° This pattern of inconsistent application suggests
that there is less to the presumption than first meets the eye.

* See, e.g., Medtronic, 518 U.S. at 485; New York State
Conference of Blue Cross & Blue Shield Plans, 514 U.S. at 655;
Cipollone, 505 U.S. at 518; English, 496 U.S. at 79; Hillsborough
County, 471 U.S. at 715.

5 Justice Scalia cited Morales v. Trans World Airlines, Inc., 504
U.S. 374 (1992), and Norfolk & W. Ry. Co. v. American Train
Dispatchers Ass’n, 499 U.S. 117 (1991).

° See, e.g., Freightliner Corp. v. Myrick, 514 U.S. 280 (1995);
American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995); FMC
Corp. v. Holliday, 498 U.S. 52 (1990); Louisiana Pub. Serv.
Comm’n v. Federal Communications Comm’n, 476 U.S. 355
(1986); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984);
Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141
(1982); Malone v. White Motor Corp., 435 U.S. 497 (1978).

8

Third, the traditional rationale for the presumption does
not support its use. The presumption often is said to rest on
“principles of federalism and respect for state sovereignty.”
Cipollone, 505 U.S. at 533 (opinion of Blackmun, J.). But
this special solicitude for important state interests is in tension
with other aspects of preemption doctrine, which regard the
importance of the state interest at stake as wholly irrelevant
to the analysis. Thus, it has long been settled that “‘[t}he
relative importance to the State of its own law is not material
when there is a conflict with valid federal law, for the
Framers of our Constitution provided that the federal law
must prevail.’” Fidelity Fed. Sav. & Loan Ass’n v. de la
Cuesta, 458 U.S. 141, 153 (1982) (quoting Free v. Bland,
369 U.S. 663, 666 (1962)). Indeed, even where the State has
a “compelling interest” in preservation of its law, “under the
Supremacy Clause, from which our pre-emption doctrine is
derived, any state law, * * * clearly within a State’s
acknowledged power, which interferes with or is contrary to
federal law, must yield.” Gade, 505 U.S. at 108 (1992)
(internal quotation marks and citations omitted). See, e.g.,
Brown v. Hotel & Restaurant Employees & Bartenders Int’!
Union Local 54, 468 U.S. 491, 503 (1984).

2. Against this background, we believe that, in the
presence of a statutory preemption clause, a presumption
against preemption may have validity only in limited
circumstances: where the statutory language is wholly
ambiguous and the statutory purpose regarding preemption
completely indeterminate, and where the circumstances
suggest that it would be inconsistent with congressional intent
to supersede state law. Thus, if an ambiguous statute
operates in a field where state regulation has had “historic
primacy” (Medtronic, 518 U.S. at 485) — that is, where the
federal government traditionally has not acted and the federal
interest in a uniform rule is not apparent — it may make
sense to presume that a Congress acting with this history in
mind did not intend to displace state law. But such a

9

presumption should have no application in areas where
Congress has often been active, where there is a federal
interest in uniformity of regulation, or where federal primacy
is rooted either in tradition or in constitutional values.

That is the case here. The Federal Railroad Safety Act
(“FRSA”) indisputably delegated to the Secretary of
Transportation the authority to preempt state laws relating to
railroad safety. See 49 U.S.C. § 20106 (“Laws, regulations,
and orders related to railroad safety shall be nationally
uniform to the extent practicable. A State may adopt or
continue in force a law, :cgulation, or order ‘elated to
railroad safety until the Secretary of Transportation prescribes
a regulation or issues an order covering the subject matter of
the State requirement.”) (emphasis added).’ The Secretary
exercised his authority to prescribe, among others, regulations
related to the installation of warning devices at railway-
highway grade crossings (see 23 C.F.R. §§ 646.214(b)(3)*

’ The FRSA initially was codified at 45 U.S.C. §§ 421-444.
That Act later was repealed and its substantive provisions re-
enacted as part of title 49. See Act of July 5, 1994, Pub. L. No.
103-272, 108 Stat. 1379.

§ 23 C.F.R. § 646.214(b)(3)(i) provides: “Adequate warning
devices, under § 646.214(b)(2) or any project where Federal-aid
funds participate in the installation of the devices are to include
automatic gates with flashing light signals when one or more of the
following conditions exist:

(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing

which may be occupied by a train or locomotive so
as to obscure the movement of another train

(C) High Speed train operation combined with limited
sight distance at either single or multiple track

10

and (b)(4)’). Those regulations preempt state law. See
Easterwood, 507 U.S. at 670 (subsections (b)(3) and (4)
“displace state and private decisionmaking authority by
establishing a federal-law requirement that certain protective
devices be installed or federal approval obtained”). Because
Congress has expressly and unambiguously defined the
statute’s preemptive scope, there is no room for application
of a presumption against preemption.

That is particularly so given the nature of the regulated
field, which historically has drawn the attention of Congress.
Congress has appropriated federal funds for use by the States
at railway-highway crossings from the inception of the
Federal Aid Highway Act, Act of July 11, 1916, ch.41, 89
Stat. 355. For more than 60 years, Congress also has
prohibited the expenditure of federal funds on federal-aid

crossings.
(D) A combination of high speeds and moderately high
volumes of highway and railroad traffic.

(E) Either a high volume of vehicular traffic, high
number of train movements, substantial numbers of
schoolbuses or trucks carrying hazardous materials,
unusually restricted sight distance, continuing
accident occurrences, or any combination of these

(F) A diagnostic team recommends them.

(ii) In individual cases where a diagnostic team justifies that gates
are not appropriate, FHWA may find that the above
requirements are not applicable.”

* 23 C.F.R. § 646.214(b)(4) provides: “For crossings where
the requirements of § 646.214(b)(3) are not applicable, the type of
warning device to be installed, whether the determination is made
by a State regulatory agency, State highway agency, and/or the
railroad, is subject to the approval of FHWA.”

es

11

with safety standards determined by the Secretary at that time
as being adequate shall be installed or in operation at any
highway and railroad grade crossing.” 23 U.S.C. § 109%e).
And Congress has long expressed doubt that disparate state
efforts in this area are useful; at the time of the enactment of
the FRSA, it questioned whether “safety in the Nation’s
railroads would be advanced sufficiently by subjecting the
national rail system to a variety of enforcement in 50 different
judicial and administrative systems.” H.R. Rep. No. 91-
1194, at 11 (1970). Cf., e.g., United Transp. Union v. Long
Island R.R. Co., 455 U.S. 678, 687-688 (1982) (“Railroads
have been subject to comprehensive federal regulation for
nearly a century. * * * There is no comparable history of
longstanding state regulation.”); R.J. Corman R.R. Co. v.
Palmore, 999 F.2d 149, 152 (6th Cir. 1993) (Congress has
long regulated “almost all aspects of the railroad industry”).
Against this background, there is no reason to presume that
Congress acted with any special expectations about the value
of state regulation here.

3. The court of appeals therefore erred in applying a
its analytical error by finding that the presumption “looms
even larger in the present context, where no analogous federal
remedy exists.” 173 F.3d at 394. That conclusion runs
counter to settled law. This Court has often found
preemption “even when the state action purported to authorize
a remedy unavailable under the federal provision.” Pilot Life
Ins. Co. v. Dedeaux, 481 U.S. 41, 55 (1987). In Caterpillar
Inc. v. Williams, 482 U.S. 386, 391 n.4 (1987), for example,
the Court overturned a court of appeals’ decision rejecting
preemption “unless the federal cause of action relied upon
provides the plaintiff with a remedy”; in so ruling, the Court
emphasized that federal law is preemptive despite the fact that
“the relief sought by the plaintiff could be obtained only”
under state law. This principle has been consistently

12

followed. See, e.g., Wisconsin Dep't of Industry, Labor &
Human Relations v. Gould Inc., 475 U.S. 282, 287 (1986);
Local 926, Int’l Union of Operating Eng’rs v. Jones, 460
U.S. 669, 684 (1983); Chicago & N.W. Transp. Co. v. Kalo
Brick & Tile Co., 450 U.S. 311, 322-23 (1981). Indeed,
there are many circumstances where the State’s provision of
a remedy that is withheld by federal law confirms the conflict
between the state and federal regime. See, e.g., San Diego
Bldg. Trades Council vy. Garmon, 359 U.S. 236, 246-247
(1959).

The fundamental flaw in the court of appeals’ reasoning
was its inversion of the proper preemption analysis. The court
focused first on the result if it were to find preemption.
Concluding that the plaintiff would be without a remedy if

state law were preempted, the court of appeals tipped the
scales against preemption. The appropriate analysis, however,
begins and ends with an inquiry into whether Congress
intended to preempt state law. Absent evidence that Congress
intended to preserve remedies for particular categories of
plaintiffs, it should have been irrelevant that state law
remedies were displaced. That is always the impact of
preemption, and Congress is not required to provide an
analogous remedy before it may preempt. Indeed, Congress
may, and sometimes does, preempt without leaving any
remedy at all for potential plaintiffs. See Arkansas Louisiana
Gas Co. v. Hall, 453 U.S. 571, 584 (1981) (“A finding that
federal law provides a shield for the challenged conduct will
almost always leave the state-law violation unredressed.”).

B. Easterwood Compels Preemption In Cases Where
Federal Funds Have Been Authorized For The
Installation Of Warning Devices At Railroad
Crossings

The court of appeals plainly regarded reliance on the

presumption against preemption as an essential element of its
holding. But the court also went on to add that, “[ijJn addition

13

to being in harmony with the presumption against preemption,
the narrow approach is more faithful to the Supreme Court’s
holding in Easterwood.” 173 F.3d at 395. In our view, that
pronouncement is insupportable. The court of appeals
misconstrued both the plain language of the controlling statute
and the unambiguous holding of Easterwood, while
disregarding fundamental rules limiting the powers of federal
courts.

1. In Easterwood, the Court addressed the proper
interpretation of the statutory language that controls in this
case, which provides that States may “adopt or continue in
force a law, regulation, or order related to railroad safety
until the Secretary of Transportation prescribes a regulation
or issues an order covering the subject matter of the State
requirement.” 49 U.S.C. § 20106 (emphasis added). In
determining the scope of this language, the Court
characterized the relevant question as “whether the Secretary
of Transportation has issued regulations covering the same
subject matter as [state] negligence law pertaining to the
maintenance of * * * grade crossings.” 507 U.S. at 664.
This means that preemption is required “if the federal
regulations substantially subsume the subject matter of the
relevant state law.” Ibid. (emphasis added).

The Court accordingly turned to a review of the
regulatory background, explaining that, for crossings “in
which ‘Federal-aid funds participate in the installation of the
[warning] devices,’ regulations specify warning devices that
must be installed.” 507 U.S. at 666 (citing 23 C.F.R. §§
646.214(b)(3) and (4). Depending on the characteristics of
the crossing, the regulations either dictate the particular type
of device to be used or provide that “the type of warning
device to be installed, whether the determination is made by
a State . . . agency, and/or the railroad, is subject to approval
of the FHWA.’” Id. at 666-667 (quoting 23 C.F.R.

14

§ 646.214(b)(4) (ellipses added by the Court)).’° Looking to
this regulatory structure, the Court found that the regulations

displace state and private decisionmaking authority by
establishing a federal-law requirement that certain
protective devices be installed or federal approval
obtained. Indeed, §§ 646.214(b)(3) and (4) effectively
set the terms under which railroads are to participate in
the improvement of crossings. * * * In short, for projects
in which federal funds participate in the installation of
warning devices, the Secretary has determined the
devices to be installed and the means by which railroads
are to participate in their selection. The Secretary’s
regulations therefore cover the subject matter of the state
law which, like the tort law on which respondent relies,

seeks to impose an independent duty on a railroad to
identify and/or repair dangerous crossings.

Id.' at 670-671 (emphasis added). This means that, “when

[the regulations] are applicable, state tort law is pre-empted.”
Id. at 670.

Applying that principle in Easterwood, the Court went on
to find preemption inappropriate because the record revealed
that federal funds had not “‘participate[d] in the installation
of the [warning] devices’” at issue in the case. 507 U.S. at
672 (bracketed material added by the Court). “In light of the
inapplicability of §§ 646.214(b)(3) and (4)” to the crossings
in Easterwood, the Court “conclude{d] that [the plaintiff’s]
grade crossing claim [was] not pre-empted.” Jd. at 673.

© Congress has dealt with railroad safety through the FRSA and
the Highway Safety Act (23 U.S.C. §§ 101 et seq.). The Secretary
prescribed 23 C.F.R. § 646.214 pursuant to both of those statutes.
See Easterwood, 507 U.S. at 663 & n.4. The regulations were
promulgated by the Secretary through the Federal Highway
Administration (“FHWA”).

15

This analysis would seem to make preemption self-
evident in this case, where the federal regulations are
applicable. Here, the Tennessee Department of Transportation
submitted a proposal to the FHWA for a state-wide project to
upgrade safety at railroad crossings. The FHWA approved
installation of a passive warning device at the Oakwood
Church Road Crossing and, consequently, federal funds
participated in the installation of the warning device at issue.
173 F.3d at 388. Under Easterwood, the FHWA’s
authorization of funds accordingly triggered the preemptive
effect of the relevant regulations, and that should have been
the end of the court of appeals’ analysis."’

2. The court of appeals took a different approach. It
read Easterwood to stand for the proposition that the
participation of federal funding is necessary but not sufficient
to establish preemption. In addition to determining whether
subsections (b)(3) or (4) are applicable, the Sixth Circuit
believed that a court must determine that the Secretary in fact
made a site-specific determination about the propriety of the
particular device used. 173 F.3d at 393. Thus, the court of
appeals concluded that, for preemption to apply in this case,
the railroad had to show not only that federal funds
participated in erection of the warning device, but also that
the FHWA actually analyzed the device installed at the
Oakwood Church Road Crossing. Because the crossing in

'! A substantial majority of the courts to address this issue have
agreed. See, e.g., Ingram v. CSX Transp., Inc., 146 F.3d 858
(ilth Cir. 1998); Armijo v. Atchison, Topeka & Santa Fe Ry. Co.,
87 F.3d 1188 (10th Cir. 1996); Elrod v. Burlington N. R.R. Co.,
68 F.3d 241 (8th Cir. 1995); Hester v. CSX Transp., Inc., 61 F.3d
382 (Sth Cir. 1995).

16

this case had a passive warning device,” § 646.214(b)(4) is
the applicable provision of the regulations. Under the terms
of subsection (b)(4), the warning device was subject to the
“approval” of the FHWA. In the Sixth Circuit’s view, the
authorization of funds was insufficient to constitute
“approval” within the meaning of subsection (b)(4).

This approach, however, simply disregarded both the
plain terms of the statutory language and this Court’s analysis
in Easterwood. Under the statute, preemption turns on
whether a federal regulation “cover[s] the subject matter of
the State requirement.” 49 U.S.C. § 20106. That inarguably
is the case here; the Secretary’s regulations address the nature
of federally-aided warning devices required at railway
crossings, which plainly is the subject matter of the state
common law rule relied upon by respondent. Easterwood,
meanwhile, gave the statute its plain reading, holding that
preemption is required when the Secretary’s regulations are
“applicable.” 507 U.S. at 670. And here, of course, the
regulations are applicable. As the Tenth Circuit explained in
similar circumstances, “the issue is not what warning system
the federal government determines to be necessary, but
whether the final authority to decide what warning system is
needed has been taken out of the railroad’s and the state’s
hands.” Armijo v. Atchison, Topeka & Santa Fe Ry. Co., 87
F.3d 1188, 1192 (10th Cir. 1996).

In addition, the Sixth Circuit’s decision essentially
rewrites the Secretary’s regulations. The Secretary prescribed
rules that outline the procedures by which a State may submit

'2 Passive warning devices are “traffic control devices * * *
located at or in advance of grade crossings to indicate the presence
of a crossing but which do not change aspect upon the approach or
presence of a train.” 23 C.F.R. § 646.204. Active warning
devices include “flashing light signals, automatic gates and similar
devices, as well as manually operated devices and crossing
watchmen.” Ibid.

17

proposals for federal-aid projects to the FHWA, including
projects at railroad crossings, and the methods by which such
projects are to be approved by the FHWA. See 23 C.F.R. §§
630.201-630.205 (outlining procedures for submitting
proposals to the FHWA); 23 C.F.R. § 630.102 (“The
purpose of this subpart is to prescribe policies for authorizing
Federal-aid projects.”). Before the FHWA may give
authorization to proceed, the requirements outlined in the
regulations must be satisfied."* Moreover, no funds for a
railroad crossing project may be authorized “unless proper
safety protective devices complying with safety standards
determined by the Secretary at that time as being adequate
shall be installed or be in operation at any * * * railroad
grade crossing * * *.” 23 U.S.C. § 109%(e). And the
selection of a passive warning device installed at a particular
crossing is “subject to the approval of FHWA.” 23 C.F.R.
§ 646.214(b)(4).

Accordingly, under the regulatory scheme, the FHWA
may not authorize or fund the installation of warning devices
unless the devices meet federal guidelines. The Sixth Circuit
nonetheless held that the mere authorization of funds did not
suffice to demonstrate FHWA approval; instead, the court of
appeals believed that there had to be additional evidence that
the FHWA made individualized findings approving the
warning device at issue. There is, however, no requirement
in the regulations that the FHWA document or make specific
findings relating to each warning device that it “approv[es].”
The court of appeals’ holding thus hinders the FHWA’s
administrative functions and imposes onerous burdens on the

3 See, e.g., 23 C.F.R. § 630.106(a) (“The FHWA issuance of
an authorization to proceed with a Federal-aid project shall be in
response to a written request from the State highway agency
(SHA). Authorization can be given only after applicable
prerequisite requirements of Federal laws and implementing
regulations and directives have been satisfied.”).

ee ————

18

agency that appear nowhere in the regulatory language. That
constitutes impermissible judicial interference with the
FHWA’s regulatory scheme.

Indeed, the Sixth Circuit’s decision is premised on a non
sequitur. The court of appeals assumed that the absence of
evidence that each warning device was analyzed under
subsections (b)(3) and (4) indicated that the regulatory
requirements were disregarded. In fact, however, because the
FHWA is barred from authorizing funds for warning devices
unless the devices meet adequate federal standards, the
decision to authorize funds conclusively establishes “approval
of the FHWA” within the meaning of the statute.“ See
Ingram v. CSX Transp., Inc., 146 F.3d 858, 865 (11th Cir.
1998) (“[A]n express finding, however, is not the only way
for the Secretary to have ‘approved’ of the safety devices that
were installed * * *. ([I}n authorizing the expenditure of
federal funds to install the passive devices * * * we presume
that the Secretary approved of those devices.”); Hester v.
CSX Transp., Inc., 61 F.3d 382, 387 (Stt Cir. 1995) (“The
fact that federal funds participated in the installation of the

‘4 The federal government agrees with this reading. In
Easterwood, the United States took the position that

[t]he scope of 23 C.F.R. 646.214(b) indicates that for federally
funded projects the Secretary has covered the subject matter of
what safety devices are appropriate. The regulation requires
gate arms in certain circumstances, and requires FHWA
approval of the safety devices in all other circumstances.
Thus, the warning devices in place at a crossing improved
with the use of federal funds have, by definition, been
specifically found to be adequate under a regulation issued by
the Secretary. Any state rule that more or different crossing
devices are necessary at a federally funded crossing is
therefore preempted.

Br. for the United States at 24 (emphasis in original), Nos. 91-790
and 91-1206.

19

warning devices legally presupposes that the Secretary
determined that the safety devices installed were adequate to
their task.”).'°

C. The Goals Behind The FRSA Are Promoted By
Preemption

The court of appeals attempted to justify its decision by
proclaiming that “the narrow approach is more consistent
with the FRSA’s goals of promoting railroad safety, reducing
railroad accidents, and reducing deaths and injuries as a result
of such accidents.” 173 F.3d at 395. In fact, the court of
appeals’ overly facile analysis conflicts with the policies of
the FRSA.

1. As an initial matter, it is no answer to an express
preemption provision that the application of state law is
consistent with the policies of the statute mandating
preemption. The FRSA, in addition to expressing a policy of
promoting railroad safety, also determined that doing so in a
nationally uniform way was the best method of achieving that
goal. Indeed, Congress explicitly declared that laws “related
to railroad safety shall be nationally uniform to the extent
practicable.” See 49 U.S.C. § 20106. When a litigant tries
to avoid preemption in such circumstances, “it is not enough
to say that the ultimate goal of both federal and state law” is
identical. International Paper Co. v. Ouellette, 479 U.S.

'S See also Kennan v. Dow Chem. Co., 717 F. Supp. 799, 810
(M.D. Fla. 1989) (“If Congress has taken away the ability of the
states to regulate * * * and assigned the regulation * * * to a
federal agency, Congress has determined that such an assignment
promotes the general welfare. Whether that federal regulatory
agency carries out its function based on all available and necessary
information is, therefore, irrelevant to a preemption inquiry.”).
That a particular decision of the Secretary might be subject to
challenge under principles of administrative law does not bear on
the question of preemption.

eee eee

20

481, 494 (1987). As the Court has explained, state law is
“pre-empted if it interferes with the methods by which the
federal statute was designed to reach th[at] goal.” Jd. at 494
(citing Michigan Canners & Freezers Ass’n v. Agricultural
Mktg. & Bargaining Bd., 467 U.S. 461, 477 (1984)
(emphasis added)); see also Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 386-87 (preemption provisions preempt
consistent as well as inconsistent state regulations); Wisconsin
Dep't of Industry, Labor & Human Relations v. Gould, 475
U.S. 282, 286-87 (1986) (National Labor Relations Act
prohibits not only inconsistent state regulation but also
precludes state remedies for conduct violative of that Act).

2. Although the court of appeals did not give a terribly
clear explanation of how it reached its result, it appears to
have been motivated principally by the feeling that
preemption somehow would give petitioner a benefit to which
it is not entitled. The court described 23 C.F.R. §§
646.214(b)(3) and (4) as “a system of incentives designed to
increase safety at grade crossings” (173 F.3d at 395),

asserting that in exchange for improving the safety of.

crossings, railroads are given immunity from state tort actions
if they “work with the state to take the desired action.” Jbid.
The Sixth Circuit criticized the approach taken by the
majority of courts — which recognizes that federal funding,
by itself, is sufficient to trigger preemption — because it
believed that those holdings allow “railroads [to] get the prize
[of preemption] whether or not they have taken the desired
action.” Ibid.

In fact, however, it is the Sixth Circuit’s holding that
turns the statutory approach on its head, leading to a result
that could not have been intended by Congress. That court
would hold railroads liable for the decision whether to install
a particular device at a given crossing. But as Easterwood
explained, subsections (b)(3) and (4) of the regulations
“effectively set the terms under which railroads are to
participate in the improvement of crossings.” 507 U.S. at

21

670. Subsection (b)(3) limits a railroad’s involvement in the
selection of warning devices to “participation in diagnostic
teams which may recommend the use or nonuse of crossing
gates.” Id. at 671.'° Likewise, under subsection (b)(4)
“railroad participation in the initial determination of ‘the type
of warning device to be installed’ at particular crossings is
subject to the Secretary’s approval.” Jbid. Thus, as we note
above, “for projects in which federal funds participate in the
installation of warning devices, the Secretary has determined
the devices to be installed and the means by which railroads
are to participate in their selection.” Jbid.

In this instance, the State of Tennessee sought approval
for a state-wide project to improve safety at railroad
crossings, which included the installation of a passive warning
device at the Oakwood Church Road Crossing. The FHWA
approved the project and authorized funding. These decisions,
and the regulatory structure, left no room for additional
actions by petitioner. To nevertheless impose liability on
petitioner for decisions taken by the State and the Secretary
— decisions over which petitioner had no control — would
convert the FRSA into a Kafkaesque regime. And needless
to say, if railroads may be punished under state law for
complying with federal regulations, the preemptive intent of
the FRSA would be wholly undermined. It is impossible to
believe that Congress intended such a result.

Furthermore, the unfairness of subjecting railroads to
state-law tort actions would be exacerbated by the difficulty
they would have in defending against those actions. Congress
has provided that “reports, surveys, schedules, lists or data
compiled or collected for the purpose of identifying|[,]
evaluating or planning the safety enhancement” of railroad
crossings are inadmissible as evidence in state or federal

16 Indeed, as petitioner explains (at Pet. 11 n.13), Tennessee
excludes railroads from diagnostic teams.

EN

22

courts. 23 U.S.C. § 409. That restriction would make it
virtually impossible for petitioner to obtain or use information
that could demonstrate the care with which the warning
device was selected and installed. This further demonstrates
the unfair consequences that would result if the court of
appeals’ decision is allowed to stand. And it confirms that
Congress could not have intended litigation to proceed in this
area.

3. Finally, the court of appeals wholly disregarded
Congress’s explicit desire to establish uniformity in the laws
relating to railroad safety. The court of appeals’ decision
contradicts that policy by exposing railroads to multiple and
possibly inconsistent obligations imposed by the laws of all of
the States. Under such an approach, differing jury outcomes
— both within a State and among States — are certain to
arise. The regime that inevitably would follow from the court
of appeals’ decision would bear no resemblance to the
uniform regulatory scheme Congress intended.

CONCLUSION
The judgment of the court of appeals should be reversed.

Respectfully submitted.

HUGH F. YOUNG, Jr. KENNETH S. GELLER*
Product Liability Advisory CHARLES ROTHFELD
Council, Inc. CRAIG ISENBERG
1850 Centennial Park Dr. Mayer, Brown & Platt
Suite 510 1909 K Street, N.W.
Reston, VA 2019] Washington, D.C. 20006
(703) 264-5300 (202) 263-3000

‘) * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0331%3A13. Public record. Not legal advice.