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529 US 344 Norfolk Southern Railway Co v. Shanklin

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529 U.S. 344
120 U.S. 1467
146 L.Ed.2d 374

Syllabus

SUPREME COURT OF THE UNITED STATES

NORFOLK SOUTHERN RAILWAY CO.
v.
SHANKLIN, individually and as next friend of SHANKLIN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 99-312.

Argued March 1, 2000

Decided April 17, 2000

The
Federal Railroad Safety Act of 1970 (FRSA) authorizes the Secretary of
Transportation to promulgate regulations and issue orders for railroad
safety, and it requires the Secretary to maintain a coordinated effort
to solve railroad grade crossing problems. The FRSA also has an express
pre-emption provision. One regulation promulgated by the Secretary,
through the Federal Highway Administration (FHWA), addresses the
adequacy of warning devices installed under the Federal Railway-Highway
Crossings Program (Crossings Program). That program provides funds to
States for the construction of such devices pursuant to the Highway
Safety Act of 1973. According to the regulation, adequate warning
devices installed using federal funds, where any of several conditions
are present, are automatic gates and flashing lights. 23 CFR
646.214(b)(3). For crossings where those conditions are not present, a
State's decision about what devices to install is subject to FHWA
approval. 646.214(b)(4). Respondent's husband was killed when
petitioner's train hit his vehicle at a crossing with advance warning
signs and reflectorized crossbucks that the Tennessee Department of
Transportation (TDOT) had installed using federal funds under the
Crossings Program. The signs were installed and fully compliant with
applicable federal standards. Respondent brought a diversity wrongful
death action in federal court, alleging that petitioner was negligent
in, among other things, failing to maintain adequate warning devices at
the crossing. The District Court denied petitioner's summary judgment
motion, holding that the FRSA did not pre-empt respondent's inadequate
warning device claim. After a trial, the jury awarded respondent
damages on this and other negligence issues. The Sixth Circuit affirmed.

Held:
The FRSA, in conjunction with 646.214(b)(3) and (4), pre-empts state
tort claims concerning a railroad's failure to maintain adequate
warning devices at crossings where federal funds have participated in
the devices' installation. In CSX Transp., Inc. v. Easterwood, 507 U.S.
658, 670, this Court held that, because 646.214(b)(3) and (4)
"establish requirements as to the installation of particular warning
devices," "when they are applicable, state tort law is pre-empted."
Thus, the sole question here is whether they "are applicable" to all
warning devices actually installed with federal funds. Easterwood
answers this question as well, because it held that the requirements in
(b)(3) and (4) are mandatory for all such devices. Id., at 666. They
establish a standard of adequacy that determines the type of warning
device to be installed when federal funds participate in the crossing
improvement project. Once the FHWA has approved and funded the
improvement and the devices are installed and operating, the regulation
displaces state and private decisionmaking authority with a federal-law
requirement. Importantly, this is precisely the interpretation of
646.214(b)(3) and (4) that the FHWA endorsed in Easterwood. The
Government's position herethat (b)(3) and (4) only apply where the
warning devices have been selected based on diagnostic studies and
particularized analyses of a crossing's conditionsis not entitled to
deference, because it contradicts the regulation's plain text as well
as the FHWA's own previous construction that the Court adopted as
authoritative in Easterwood. Respondent's argument that pre-emption
does not apply here because this crossing presented several (b)(3)
factors, and because the TDOT did not install pavement markings
required by the FHWA's Manual on Uniform Traffic Control Devices,
misconceives how pre-emption operates under these circumstances. If
they are applicable, 696.214(b)(3) and (4) establish a federal standard
for adequacy that displaces state tort law addressing the same subject.
Whether the State should have originally installed different or
additional devices, or whether conditions at the crossing have since
changed such that different devices would be appropriate, is
immaterial. Nothing prevents a State from revisiting the adequacy of
devices installed using federal funds, or from installing more
protective devices at such crossings with their own funds or additional
FHWA funding, but the State cannot hold the railroad responsible for
the adequacy of those devices.

Pp. 6-14.173 F.3d 386, reversed and remanded.

O'Connor,
J., delivered the opinion of the Court, in which Rehnquist, C. J., and
Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Breyer, J.,
filed a concurring opinion. Ginsburg, J., filed a dissenting opinion,
in which Stevens, J., joined.

Opinion of the Court

1

NOTICE:
This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are
requested
to notify the Reporter of Decisions, Supreme Court of the United
States, Washington, D. C. 20543, of any typographical or other
formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 99-312

2

NORFOLK SOUTHERN RAILWAY COMPANY, PETITIONER
v.
DEDRA SHANKLIN, individually, and as next friend of jessie guy shanklin

3

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

4

[April 17, 2000]

5

Justice O'Connor delivered the opinion of the Court.

6

This
case involves an action for damages against a railroad due to its
alleged failure to maintain adequate warning devices at a grade
crossing in western Tennessee. After her husband was killed in a
crossing accident, respondent brought suit against petitioner, the
operator of the train involved in the collision. Respondent claimed
that the warning signs posted at the crossing, which had been installed
using federal funds, were insufficient to warn motorists of the danger
posed by passing trains. The specific issue we must decide is whether
the Federal Railroad Safety Act of 1970, 84 Stat. 971, as amended, 49
U.S.C. 20101 et seq., in conjunction with the Federal Highway
Administration's regulation addressing the adequacy of warning devices
installed with federal funds, pre-empts state tort actions such as
respondent's. We hold that it does.

7

* A

8

In
1970, Congress enacted the Federal Railroad Safety Act (FRSA) "to
promote safety in every area of railroad operations and reduce
railroad-related accidents and incidents." 49 U.S.C. 20101. The FRSA
grants the Secretary of Transportation the authority to "prescribe
regulations and issue orders for every area of railroad safety,"
20103(a), and directs the Secretary to "maintain a coordinated effort
to develop and carry out solutions to the railroad grade crossing
problem," 20134(a). The FRSA also contains an express pre-emption
provision, which states:

9

"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, 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." 20106.

10

Although the pre-emption provision contains an exception, see ibid., it is inapplicable here.

11

Three
years after passing the FRSA, Congress enacted the Highway Safety Act
of 1973, 203, 87 Stat. 283, which, among other things, created the
Federal Railway-Highway Crossings Program (Crossings Program), see 23
U.S.C. 130. That program makes funds available to States for the "cost
of construction of projects for the elimination of hazards of
railway-highway crossings." 130(a). To participate in the Crossings
Program, all States must "conduct and systematically maintain a survey
of all highways to identify those railroad crossings which may require
separation, relocation, or protective devices, and establish and
implement a schedule of projects for this purpose." 130(d). That
schedule must, "[a]t a minimum, a provide signs for all railway-highway
crossings." Ibid.

12

The
Secretary, through the Federal Highway Administration (FHWA), has
promulgated several regulations implementing the Crossings Program. One
of those regulations, 23 CFR 646.214(b) (1999), addresses the design of
grade crossing improvements. More specifically, 646.214(b)(3) and (4)
address the adequacy of warning devices installed under the program.*
According to 646.214(b)(3), "[a]dequte warning devices a on any project
where Federal-aid funds participate in the installation of the devices
are to include automatic gates with flashing light signals" if any of
several conditions are present. Those conditions include (A)
"[m]ultiple main line railroad tracks," (B) multiple tracks in the
vicinity such that one train might "obscure the movement of another
train approaching the crossing," (C) high speed trains combined with
limited sight distances, (D) a "combination of high speeds and
moderately high volumes of highway and railroad traffic," (E) the use
of the crossing by "substantial numbers of schoolbuses or trucks
carrying hazardous materials," or (F) when a "diagnostic team
recommends them." 646.214(b)(3)(i). Subsection (b)(4) states that
"[f]or 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." Thus,
at crossings where any of the conditions listed in (b)(3) exist,
adequate warning devices, if installed using federal funds, are
automatic gates and flashing lights. And where the (b)(3) conditions
are not present, the decision of what devices to install is subject to
FHWA approval.

B

13

Shortly
after 5 a.m. on October 3, 1993, Eddie Shanklin drove his truck
eastward on Oakwood Church Road in Gibson County, Tennessee. App. to
Pet. for Cert. 28a. As Shanklin crossed the railroad tracks that
intersect the road, he was struck and killed by a train operated by
petitioner. Ibid. At the time of the accident, the Oakwood Church Road
crossing was equipped with advance warning signs and reflectorized
crossbucks, id., at 34a, the familiar black-and-white, X-shaped signs
that read "RAILROAD CROSSING," see U.S. Dept. of Transportation,
Federal Highway Administration, Manual on Uniform Traffic Control
Devices 8B-2 (1988) (MUTCD). The Tennessee Department of Transportation
(TDOT) had installed the signs in 1987 with federal funds received
under the Crossings Program. App. to Pet. for Cert. 3a. The TDOT had
requested the funds as part of a project to install such signs at 196
grade crossings in 11 Tennessee counties. See App. 128-131. That
request contained information about each crossing covered by the
project, including the presence or absence of several of the factors
listed in 646.214(b)(3). See id., at 134. The FHWA approved the
project, App. to Pet. for Cert. 34a, and federal funds accounted for
99% of the cost of installing the signs at the crossings, see App. 133.
It is undisputed that the signs at the Oakwood Church Road crossing
were installed and fully compliant with the federal standards for such
devices at the time of the accident.

14

Following
the accident, Mr. Shanklin's widow, respondent Dedra Shanklin, brought
this diversity wrongful death action against petitioner in the United
States District Court for the Western District of Tennessee. Id., at
29-34. Respondent's claims were based on Tennessee statutory and common
law. Id., at 31-33. She alleged that petitioner had been negligent in
several respects, including by failing to maintain adequate warning
devices at the crossing. Ibid. Petitioner moved for summary judgment on
the ground that the FRSA pre-empted respondent's suit. App. to Pet. for
Cert. 28a. The District Court held that respondent's allegation that
the signs installed at the crossing were inadequate was not pre-empted.
Id., at 29a-37a. Respondent thus presented her inadequate warning
device claim and three other allegations of negligence to a jury, which
found that petitioner and Mr. Shanklin had both been negligent. App.
47. The jury assigned 70% responsibility to petitioner and 30% to Mr.
Shanklin, and it assessed damages of $615,379. Ibid. The District Court
accordingly entered judgment of $430,765.30 for respondent. Id., at 48.

15

The
Court of Appeals for the Sixth Circuit affirmed, holding that the FRSA
did not pre-empt respondent's claim that the devices at the crossing
were inadequate. See 173 F.3d 386 (1999). It reasoned that federal
funding alone is insufficient to trigger pre-emption of state tort
actions under the FRSA and 646.214(b)(3) and (4). Id., at 394. Instead,
the railroad must establish that 646.214(b)(3) or (4) was "applied" to
the crossing at issue, meaning that the FHWA affirmatively approved the
particular devices installed at the crossing as adequate for safety.
Id., at 397. The court concluded that, because the TDOT had installed
the signs for the purpose of providing "minimum protection" at the
Oakwood Church Road crossing, there had been no such individualized
determination of adequacy.

16

We
granted certiorari, 528 U.S. __ (1999), to resolve a conflict among the
Courts of Appeals as to whether the FRSA, by virtue of 23 CFR
646.214(b)(3) and (4) (1999), pre-empts state tort claims concerning a
railroad's failure to maintain adequate warning devices at crossings
where federal funds have participated in the installation of the
devices. Compare Ingram v. CSX Transp., Inc., 146 F.3d 858 (CA11 1998)
(holding that federal funding of crossing improvement triggers
pre-emption under FRSA); Armijo v. Atchison, Topeka & Santa Fe R.
Co., 87 F.3d 1188 (CA10 1996) (same); Elrod v. Burlington Northern R.
Co., 68 F.3d 241 (CA8 1995) (same); Hester v. CSX Transp., Inc., 61
F.3d 382 (CA5 1995) (same), cert. denied, 516 U.S. 1093 (1996), with
173 F.3d 386 (CA6 1999) (case below); Shots v. CSX Transp., Inc., 38
F.3d 304 (CA7 1994) (no pre-emption until representative of Federal
Government has determined that devices installed are adequate for
safety).

II

17

We
previously addressed the pre-emptive effect of the FHWA's regulations
implementing the Crossings Program in CSX Transp., Inc. v. Easterwood,
507 U.S. 658 (1993). In that case, we explained that the language of
the FRSA's pre-emption provision dictates that, to pre-empt state law,
the federal regulation must "cover" the same subject matter, and not
merely " aetouch upon' or aerelate to' that subject matter." Id., at
664; see also 49 U.S.C. 20106. Thus, "pre-emption will lie only if the
federal regulations substantially subsume the subject matter of the
relevant state law." Easterwood, supra, at 664. Applying this standard,
we concluded that the regulations contained in 23 CFR pt. 924 (1999),
which "establish the general terms of the bargain between the Federal
and State Governments" for the Crossings Program, are not pre-emptive.
507 U.S., at 667. We also held that 646.214(b)(1), which requires that
all traffic control devices installed under the program comply with the
MUTCD, does not pre-empt state tort actions. Id., at 668-670. The
Manual "provides a description of, rather than a prescription for, the
allocation of responsibility for grade crossing safety between Federal
and State Governments and between States and railroads," and hence
"disavows any claim to cover the subject matter of that body of law."
Id., at 669-670.

18

With
respect to 646.214(b)(3) and (4), however, we reached a different
conclusion. Because those regulations "establish requirements as to the
installation of particular warning devices," we held that "when they
are applicable, state tort law is pre-empted." Id., at 670. Unlike the
other regulations, "646.214(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."
Ibid. As a result, those regulations "effectively set the terms under
which railroads are to participate in the improvement of crossings."
Ibid.

19

In
Easterwood itself, we ultimately concluded that the plaintiff's state
tort claim was not pre-empted. Ibid. As here, the plaintiff brought a
wrongful death action alleging that the railroad had not maintained
adequate warning devices at a particular grade crossing. Id., at 661.
We held that 646.214(b)(3) and (4) were not applicable because the
warning devices for which federal funds had been obtained were never
actually installed at the crossing where the accident occurred. Id., at
671-673. Nonetheless, we made clear that, when they do apply,
646.214(b)(3) and (4) "cover the subject matter of 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 671. The sole question in this case, then, is
whether 646.214(b)(3) and (4) "are applicable" to all warning devices
actually installed with federal funds.

20

We
believe that Easterwood answers this question as well. As an original
matter, one could plausibly read 646.214(b)(3) and (4) as being purely
definitional, establishing a standard for the adequacy of federally
funded warning devices but not requiring that all such devices meet
that standard. Easterwood rejected this approach, however, and held
that the requirements spelled out in (b)(3) and (4) are mandatory for
all warning devices installed with federal funds. "[F]or projects that
involve grade crossings a in which aeFederal-aid funds participate in
the installation of the [warning] devices,' regulations specify warning
devices that must be installed." Id., at 666 (emphasis added). Once it
is accepted that the regulations are not merely definitional, their
scope is plain: they apply to "any project where Federal-aid funds
participate in the installation of the devices." 23 CFR 646.214(b)
(3)(i) (1999).

21

Sections
646.214(b)(3) and (4) therefore establish a standard of adequacy that
"determine[s] the devices to be installed" when federal funds
participate in the crossing improvement project. Easterwood, 507 U.S.,
at 671. If a crossing presents those conditions listed in (b)(3), the
State must install automatic gates and flashing lights; if the (b)(3)
factors are absent, (b)(4) dictates that the decision as to what
devices to install is subject to FHWA approval. See id., at 670-671. In
either case, 646.214(b)(3) or (4) "is applicable" and determines the
type of warning device that is "adequate" under federal law. As a
result, once the FHWA has funded the crossing improvement and the
warning devices are actually installed and operating, the regulation
"displace[s] state and private decisionmaking authority by establishing
a federal-law requirement that certain protective devices be installed
or federal approval obtained." Id., at 670.

22

Importantly,
this is precisely the interpretation of 646.214(b)(3) and (4) that the
FHWA endorsed in Easterwood. Appearing as amicus curiae, the Government
explained that 646.214(b) "establishes substantive standards for what
constitutes adequate safety devices on grade crossing improvement
projects financed with federal funds." Brief for United States as
Amicus Curiae in CSX Transp., Inc. v. Easterwood, O.T. 1992, Nos.
91-790 and 91-1206, p. 23. As a result, 646.214(b)(3) and (4) "cover
the subject matter of adequate safety devices at crossings that have
been improved with the use of federal funds." Ibid. More specifically,
the Government stated that 646.214(b) "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 were
necessary at a federally funded crossing is therefore preempted." Id.,
at 24.

23

Thus,
Easterwood adopted the FHWA's own understanding of the application of
646.214(b)(3) and (4), a regulation that the agency had been
administering for 17 years.

24

Respondent
and the Government now argue that 646.214(b)(3) and (4) are more
limited in scope and only apply where the warning devices have been
selected based on diagnostic studies and particularized analyses of the
conditions at the crossing. See Brief for Respondent 16, 24; Brief for
United States as Amicus Curiae 22 (hereinafter Brief for United
States). They contend that the Crossings Program actually comprises two
distinct programsthe "minimum protection" program and the "priority" or
"hazard" program. See Brief for Respondent 1-7; Brief for United States
15-21. Under the "minimum protection" program, they argue, States
obtain federal funds merely to equip crossings with advance warning
signs and reflectorized crossbucks, the bare minimum required by the
MUTCD, without any judgment as to whether the signs are adequate. See
Brief for Respondent 5-7, 30-36; Brief for United States 15-21. Under
the "priority" or "hazard" program, in contrast, diagnostic teams
conduct individualized assessments of particular crossings, and state
or FHWA officials make specific judgments about the adequacy of the
warning devices using the criteria set out in 646.214(b)(3). See Brief
for Respondent 5-7, 34-35; Brief for United States 18-21. They
therefore contend that (b)(3) and (4) only apply to devices installed
under the "priority" or "hazard" program, when a diagnostic team has
actually applied the decisional process mandated by (b)(3). See Brief
for Respondent 16; Brief for United States 18-25. Only then has the
regulation prescribed a federal standard for the adequacy of the
warning devices that displaces state law covering the same subject.

25

This
construction, however, contradicts the regulation's plain text.
Sections 646.214(b)(3) and (4) make no distinction between devices
installed for "minimum protection" and those installed under a
so-called "priority" or "hazard" program. Nor does their applicability
depend on any individualized determination of adequacy by a diagnostic
team or an FHWA official. Rather, as the FHWA itself explained in its
Easterwood brief, 646.214(b)(3) and (4) have a "comprehensive scope."
Brief for United States in CSX Transp., Inc. v. Easterwood, O.T. 1992,
Nos. 91-790 and 91-1206, at 12. Section 646.214(b)(3) states that its
requirements apply to "any project where Federal-aid funds participate
in the installation of the devices." 23 CFR 646.214(b)(3)(i) (1999)
(emphasis added). And 646.214(b)(4) applies to all federally funded
crossings that do not meet the criteria specified in (b)(3). Either
way, the federal standard for adequacy applies to the crossing
improvement and "substantially subsume[s] the subject matter of the
relevant state law." Easterwood, 507 U.S., at 664.

26

Thus,
contrary to the Government's position here, 646.214(b)(3) and (4)
"specify warning devices that must be installed" as a part of all
federally funded crossing improvements. Id., at 666. Although generally
"an agency's construction of its own regulations is entitled to
substantial deference," Pauley v. BethEnergy Mines, Inc., 501 U.S. 680,
698 (1991), no such deference is appropriate here. Not only is the
FHWA's interpretation inconsistent with the text of 646.214(b)(3) and
(4), see Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359
(1989), but it also contradicts the agency's own previous construction
that this Court adopted as authoritative in Easterwood, cf. Maislin
Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 131 (1990)
("Once we have determined a statute's clear meaning, we adhere to that
determination under the doctrine of stare decisis, and we judge an
agency's later interpretation of the statute against our prior
determination of the statute's meaning").

27

The
dissent contends that, under our holding, state law is pre-empted even
though "[n]o authority, federal or state, has found that the signs in
place" are "adequate to protect safety." Post, at 1 (opinion of
Ginsburg, J.). This presupposes that States have not fulfilled their
obligation to comply with 646.214(b)(3) and (4). Those subsections
establish a standard for adequacy that States are required to follow in
determining what devices to install when federal funds are used. The
dissent also argues that Easterwood did not hold that federal funding
of the devices is "sufficient" to effect pre-emption, and that "any
statement as to the automatic preemptive effect of federal funding
should have remained open for reconsideration in a later case." Post,
at 2. But Easterwood did not, in fact, leave this question open.
Instead, at the behest of the FHWA, the Court clearly stated that
646.214(b)(3) and (4) pre-empt state tort claims concerning the
adequacy of all warning devices installed with the participation of
federal funds.

28

Respondent
also argues that pre-emption does not lie in this particular case
because the Oakwood Church Road crossing presented several of the
factors listed in 646.214(b)(3), and because the TDOT did not install
pavement markings as required by the MUTCD. See Brief for Respondent
20-22, 36; Brief in Opposition 6-8. This misconceives how pre-emption
operates under these circumstances. When the FHWA approves a crossing
improvement project and the State installs the warning devices using
federal funds, 646.214(b)(3) and (4) establish a federal standard for
the adequacy of those devices that displaces state tort law addressing
the same subject. At that point, the regulation dictates "the devices
to be installed and the means by which railroads are to participate in
their selection." Easterwood, supra, at 671. It is this displacement of
state law concerning the devices' adequacy, and not the State's or the
FHWA's adherence to the standard set out in 646.214(b)(3) and (4) or to
the requirements of the MUTCD, that pre-empts state tort actions.
Whether the State should have originally installed different or
additional devices, or whether conditions at the crossing have since
changed such that automatic gates and flashing lights would be
appropriate, is immaterial to the pre-emption question.

29

It
should be noted that nothing prevents a State from revisiting the
adequacy of devices installed using federal funds. States are free to
install more protective devices at such crossings with their own funds
or with additional funding from the FHWA. What States cannot doonce
they have installed federally funded devices at a particular crossingis
hold the railroad responsible for the adequacy of those devices. The
dissent objects that this bestows on railroads a "double windfall": the
Federal Government pays for the installation of the devices, and the
railroad is simultaneously absolved of state tort liability. Post, at
2. But the same is true of the result urged by respondent and the
Government. Respondent and the Government acknowledge that
646.214(b)(3) and (4) can pre-empt state tort law, but they argue that
pre-emption only occurs when the State has installed the devices
pursuant to a diagnostic team's analysis of the crossing in question.
Under this reading, railroads would receive the same "double
windfall"federal funding of the devices and pre-emption of state tort
lawso long as a diagnostic team has evaluated the crossing. The
supposed conferral of a "windfall" on the railroads therefore casts no
doubt on our construction of the regulation.

30

Sections
646.214(b)(3) and (4) "cover the subject matter" of the adequacy of
warning devices installed with the participation of federal funds. As a
result, the FRSA pre-empts respondent's state tort claim that the
advance warning signs and reflectorized crossbucks installed at the
Oakwood Church Road crossing were inadequate. Because the TDOT used
federal funds for the signs' installation, 646.214(b)(3) and (4)
governed the selection and installation of the devices. And because the
TDOT determined that warning devices other than automatic gates and
flashing lights were appropriate, its decision was subject to the
approval of the FHWA. See 23 CFR 646.214(b)(4) (1999). Once the FHWA
approved the project and the signs were installed using federal funds,
the federal standard for adequacy displaced Tennessee statutory and
common law addressing the same subject, thereby pre-empting
respondent's claim.

31

The
judgment of the Court of Appeals for the Sixth Circuit is reversed, and
the case is remanded for further proceedings consistent with this
opinion.

32

It is so ordered.

Breyer, J., concurring

33

Justice Breyer, concurring.

34

I
agree with Justice Ginsburg that "common sense and sound policy"
suggest that federal minimum safety standards should not pre-empt a
state tort action claiming that in the particular circumstance a
railroad's warning device remains inadequate. Post, at 2 (dissenting
opinion). But the Federal Government has the legal power to do more.
And, as the majority points out, ante, at 8-12, the specific Federal
Highway Administration regulations at issue here do, in fact, do
morewhen read in light of CSX Transp., Inc. v. Easterwood, 507 U.S. 658
(1993), which faithfully replicates the Government's own earlier
interpretation. So read, they say that once federal funds are requested
and spent to install warning devices at a grade crossing, the
regulations' standards of adequacy apply across the board and pre-empt
state law seeking to impose an independent duty on a railroad with
respect to the adequacy of warning devices installed. Id., at 671;
ante, at 12. I see no need here to reconsider the relevant language in
this Court's earlier opinion because the Government itself can easily
avoid the pre-emption that it previously sought. It can simply change
the relevant regulations, for example, by specifying that federal money
is sometimes used for "minimum," not "adequate," programs, which
minimum programs lack pre-emptive force. The agency remains free to
amend its regulations to achieve the commonsense result that the
Government itself now seeks. With that understanding, I join the
majority's opinion.

Ginsburg, J., dissenting

35

Justice Ginsburg, with whom Justice Stevens joins, dissenting.

36

A
fatal accident occurred on October 3, 1993, at a railroad crossing in
Gibson County, Tennessee. The crossing was equipped not with automatic
gates or flashing lights, but only with basic warning signs installed
with federal funds provided under the Federal Rail-Highway Crossings
Program. See 23 U.S.C. 130. This federal program aimed to ensure that
States would, "[a]t a minimum, . . . provide signs for all
railway-highway crossings." 130d. No authority, federal or state, has
found that the signs in place at the scene of the Gibson County
accident were adequate to protect safety, as distinguished from being a
bare minimum. Nevertheless, the Court today holds that wholesale
federal funding of improvements at 196 crossings throughout 11 west
Tennessee counties preempts all state regulation of safety devices at
each individual crossing. As a result, respondent Dedra Shanklin cannot
recover under state tort law for the railroad's failure to install
adequate devices. And the State of Tennessee, because it used federal
money to provide at least minimum protection, is stopped from requiring
the installation of adequate devices at any of the funded crossings.

37

The
upshot of the Court's decision is that state negligence law is
displaced with no substantive federal standard of conduct to fill the
void. That outcome defies common sense and sound policy. Federal
regulations already provide that railroads shall not be required to pay
any share of the cost of federally financed grade crossing
improvements. 23 CFR 646.210(b)(1) (1999). Today the railroads have
achieved a double windfall: the Federal Government foots the bill for
installing safety devices; and that same federal expenditure spares the
railroads from tort liability, even for the inadequacy of devices
designed only to secure the "minimum" protection Congress envisioned
for all crossings. See 23 U.S.C. 130d. Counsel for petitioner Norfolk
Southern Railway correctly conceded at oral argument that the relevant
statutes do not compel releasing the railroads when the devices
installed, though meeting federal standards for "minimum" protection,
see ante, at 5, fail to provide adequate protection. The road is open
for the Secretary of Transportation to enact regulations clarifying
that point. See ante, at 2 (Breyer, J., concurring).

38

As
persuasively explained by the Court of Appeals for the Seventh Circuit
in Shots v. CSX Transp., Inc., 38 F.3d 304 (1994) (Posner, C. J.), and
reiterated by the Court of Appeals for the Sixth Circuit in the instant
case, 173 F.3d 386 (1999), our prior decision in CSX Transp., Inc. v.
Easterwood, 507 U.S. 658 (1993), does not necessitate the ouster of
state law the Court now commands. Easterwood, in which the tort
claimant prevailed, dispositively held only that federal funding was
necessary to trigger preemption, not that it was sufficient by itself
to do so. Because federal funds did not in fact subsidize the crossing
at issue in that case, id., at 671-673, any statement as to the
automatic preemptive effect of federal funding should have remained
open for reconsideration in a later case where federal funds did
participate. I do not read the admittedly unclear language of 23 CFR
646.214(b)(3) and (4) to dictate that Federal Highway Administration
authorization of federal funding to install devices is tantamount to
approval of each of those devices as adequate to protect safety at
every crossing so funded. And I do not think a previous
administration's argument to that effect as amicus curiae in Easterwood
estops the Government from taking a different view now. I agree with
the sound reasoning in Shots and would affirm the Court of Appeals'
judgment.

Notes

39

1. * Sections 646.214(b)(3) and (4) provide in full:

40

--(3)(i)
Adequate warning devices, under 646.214(b)(2) or on 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:

41

--(A) Multiple main line railroad tracks.

42

--(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 approaching the crossing.

43

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

44

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

45

--(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 conditions.

46

--(F) A diagnostic team recommends them.

47

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

48

--(4)
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."