Tom Lundeen v. Canadian Pacific Railway Compa

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 07-1656
___________

Tom Lundeen, individually; *
Nanette Lundeen, individually, and *
Tom Lundeen and Nanette Lundeen *
on behalf of, and as parents and *
natural guardians of M.L., a minor, *
and Michael Lundeen, *
*
Appellants, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, * Appeals from the United States
* District Court for the
Appellees, * District of Minnesota.
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
 Amici Curiae on behalf *
of Appellants. *
___________

No. 07-1670
___________

Rebecca Behnkie, individually, *
and Rebecca Behnkie on behalf of, *
and as parent and natural guardian *
of Nathaniel Behnkie, a minor, *
*
Appellant, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*

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 Amici Curiae on behalf *
of Appellants. *
___________

No. 07-1672
___________

Larry Crabbe; Carol Crabbe, *
*
Appellants, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1676
___________

Denise Duchsherer; Leo Duchsherer; *
*
Appellants, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1679
___________

Jo Ann Flick, *
*
Appellant, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1680
___________

Leo Gleason, *
*
Appellant, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1684
___________

Mary Beth Gross, individually, and *
Mary Beth Gross on behalf of, and *
as parent and natural guardian of *
Brett Gross, a minor, *
*
Appellant, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1693
___________

Bobby Smith; Mary Smith, *
*
Appellants, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1694
___________

Rachelle Todosichuk, *
*
Appellant, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1698
___________

Melissa Todd, *
*
Appellant, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1699
___________

Ray Lakoduk, *
*
Appellant, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

No. 07-1707
___________

Mark Nisbet; Sandra Nisbet, *
*
Appellants, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Limited; Canadian *
Pacific Railway Limited; Soo Line *
Railroad Company, *
*
Appellees, *
*
United States, *
*
Intervenor. *
______________________ *
*
State of North Dakota; State of *
Mississippi; State of Indiana; *
State of Iowa; State of Maryland; *
State of Minnesota; State of *
Missouri; State of Montana; *
State of Nevada; State of Oklahoma; *
State of South Dakota; State of *
New Hampshire; State of Utah, *
*
Amici Curiae on behalf *
of Appellants. *

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 ___________

Submitted: January 17, 2008
Filed: July 2, 2008
___________

Before BYE, BEAM, and SMITH, Circuit Judges.
___________

BYE, Circuit Judge.

In Lundeen v. Canadian Pacific Railway Co., 447 F.3d 606, 615 (8th Cir. 2006)
(Lundeen I), we determined the above-captioned lawsuits, initially filed in state court,
were preempted by 49 U.S.C. § 20106 of the Federal Railroad Safety Act (FRSA). On
remand, the district court dismissed the lawsuits. The Lundeens and other appellants
(hereinafter the Lundeens) thereafter filed the instant appeals. While these appeals
were pending, Congress amended § 20106. The amendment directly addresses the
preemptive effect of § 20106, and if applicable here, would allow these cases to
proceed in state court. Canadian Pacific Railway Company (CP) challenges the
amendment on several constitutional grounds. We conclude the amendment is
constitutional, and therefore vacate Lundeen I and remand these cases to the district
court with directions to further remand them to state court.

I

On January 18, 2002, a CP freight train derailed near Minot, North Dakota, and
caused the release of more than 220,000 gallons of anhydrous ammonia into the air,
exposing the area's population to a cloud of toxic gas, causing many people to suffer
from permanent respiratory disease and eye damage. Many of the injured people filed
a class action suit in North Dakota federal district court. Some, however, retained
individual counsel and filed suit in Minnesota state court. These consolidated appeals
involve a group of the individual lawsuits filed in Minnesota state court.

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 The class action venued in North Dakota federal district court was ultimately
dismissed on the pleadings upon the district court concluding the claims were
preempted by § 20106. See Mehl v. Canadian Pac. Ry. Ltd., 417 F. Supp. 2d 1104,
1116-18 (D.N.D. 2006). The claims in Minnesota were resolved less consistently,
with some being settled, some being resolved in favor of CP on the preemption issue,
and still others being resolved against CP on the preemption issue and proceeding in
state court.

CP removed a discrete group of the Minnesota cases – those brought by the
Lundeens – to Minnesota federal district court. The district court determined the
Lundeens' original complaints alleged a federal cause of action by making a reference
to "United States law," creating federal question jurisdiction and making removal to
federal court proper. See Lundeen v. Canadian Pac. Ry. Co., 342 F. Supp. 2d 826,
829-31 (D. Minn. 2004). Subsequent to such ruling, however, the district court
allowed the Lundeens to amend their complaints to delete the reference to "United
States law," thereby dropping the federal claim and erasing the basis for federal
question jurisdiction. After allowing the complaints to be amended, the district court
concluded the cases should be remanded to Minnesota state court. Lundeen v.
Canadian Pac. Ry. Co., 2005 WL 563111 at *1 (D. Minn. March 9, 2005).

CP appealed the ruling to this appellate court. We decided federal question
jurisdiction was present based upon another ground, that is, preemption under
§ 20106. Lundeen I, 447 F.3d at 615. The cases were thereafter remanded to district
court in which the court held federal preemption doomed the Lundeen cases not only
on the question of federal versus state jurisdiction, but also on the merits. The district
court therefore entered dismissal orders. See Lundeen v. Canadian Pac. Ry. Co., 507
F. Supp. 2d 1006, 1017 (D. Minn. 2007). The Lundeens filed the present appeals
challenging such decision.

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 In the meantime, the Minot derailment cases were causing a stir on the political
front. While the present appeals were pending, Congress passed and President Bush
signed into law an amendment to § 20106. The amendment provides in relevant part
as follows:

(b) Clarification regarding State law causes of action. – (1) Nothing in
this section shall be construed to preempt an action under State law
seeking damages for personal injury, death, or property damage alleging
that a party–

(A) has failed to comply with the Federal standard of care
established by a regulation or order issued by the Secretary
of Transportation (with respect to railroad safety matters),
or the Secretary of Homeland Security (with respect to
railroad security matters), covering the subject matter as
provided in subsection (a) of this section;

(B) has failed to comply with its own plan, rule, or standard
that it created pursuant to a regulation or order issued by
either of the Secretaries; or

(C) has failed to comply with a State law, regulation, or
order that is not incompatible with subsection (a)(2).

49 U.S.C. § 20106(b). This "clarifying" amendment reflected Congress's
disagreement with the manner in which the courts, including our own in Lundeen I,
had interpreted § 20106 to preempt state law causes of action whenever a federal
regulation covered the same subject matter as the allegations of negligence in a state
court lawsuit. Congress made the amendment retroactive to January 18, 2002, the day
of the Minot derailment. See id. at § 20106(b)(2) ("This subsection shall apply to all
pending State law causes of action arising from events or activities occurring on or
after January 18, 2002."). In addition, Congress expressly stated § 20106 was not
intended to confer federal question jurisdiction upon the federal courts when a party
filed a state court lawsuit, as the Lundeens had done. See id. at § 20106(c) ("Nothing

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in this section creates a Federal cause of action on behalf of an injured party or confers
Federal question jurisdiction for such State law causes of action."). Therefore, if
valid, subsection (c) of § 20106 effectively overrules our decision in Lundeen I.

After the Congressional amendment, we requested from the parties
supplemental briefing addressing the impact of the amendment on these consolidated
appeals. CP's supplemental brief contends the amendment should be struck down as
unconstitutional because it violates the separation of powers doctrine, CP's due
process rights, CP's equal protection rights, and the Ex Post Facto clause.

The Lundeens contend Congress acted within its power in amending § 20106,
and we must now enforce it by vacating Lundeen I and sending these cases back to
state court. The Lundeens further contend the amended statute does not violate any
of CP's constitutional rights. An amicus brief filed by the North Dakota attorney
general on behalf of several states supports the amendment and its recognition of
traditional state court jurisdiction. In addition, the United States intervened and filed
a brief defending the constitutionality of the amendment.

II

We review constitutional claims de novo. Unites States v. Finck, 407 F.3d 908,
916 (8th Cir. 2005).

CP first contends the amendment to § 20106 violates the separation of powers
doctrine. We respectfully disagree.

Congress, of course, has the power to amend a statute that it believes [the
courts] have misconstrued. It may even, within broad constitutional
bounds, make such a change retroactive and thereby undo what it
perceives to be the undesirable past consequences of a misinterpretation
of its work product. No such change, however, has the force of law

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 unless it is implemented through legislation. Even when Congress
intends to supersede a rule of law embodied in one of our decisions with
what it views as a better rule established in earlier decisions, its intent to
reach conduct preceding the "corrective" amendment must clearly
appear.

Rivers v. Roadway Exp., Inc., 511 U.S. 298, 313 (1994).

In Plaut v. Spendthrift Farm, 514 U.S. 211 (1995), the Supreme Court reiterated
Congress possesses the power to amend existing law even if the amendment affects
the outcome of pending cases. Id. at 218. The Court explained the separation of
powers doctrine is violated only when Congress tries to apply new law to cases which
have already reached a final judgment. See id. at 226 ("Congress can always revise
the judgments of Article III courts in one sense: When a new law makes clear that it
is retroactive, an appellate court must apply that law in reviewing judgments still on
appeal that were rendered before the law was enacted, and must alter the outcome
accordingly.").

The amendment to § 20106 was a valid exercise of Congressional power, as it
was implemented through the legislative process. In addition, Congress made clear
its intent to reach conduct preceding the corrective amendment by expressly indicating
it applied "to all pending State law causes of action arising from events or activities
occurring on or after January 18, 2002." 49 U.S.C. § 20106(b)(2). Furthermore,
applying the amendment to the cases now before us does not violate the separation of
powers doctrine because when the amendment became effective these cases were on
appeal and had not reached final judgments. Finally, we reject CP's argument about
Congress's reference to the amendment as a "[c]larification" of existing law rather than
a substantive change to existing law somehow alters our analysis. We are obliged to
apply the amendment to pending cases regardless of the label Congress attached to it.
See Porter v. Comm'r of Internal Revenue, 856 F.2d 1205, 1209 (8th Cir. 1988) ("Our
objective in interpreting a federal statute is to achieve the intent of Congress."). The

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statute's clear language indicates state law causes of action are no longer preempted
under § 20106.

CP next contends the amendment to § 20106 violates its due process rights
because the amendment's effective date (the day of the Minot derailment) indicates
Congress specifically targeted CP and upset its settled expectations about the state of
the law governing its business activities.

We review legislation regulating economic and business affairs under a "highly
deferential rational basis" standard of review. Koster v. City of Davenport, Iowa, 183
F.3d 762, 768 (8th Cir. 1999). "[L]egislative Acts adjusting the burdens and benefits
of economic life come to the Court with a presumption of constitutionality, and . . .
the burden is on the one complaining of a due process violation to establish that the
legislature has acted in an arbitrary and irrational way." Usery v. Tuner Elkhorn
Mining Co., 428 U.S. 1, 15 (1976). Even retroactive legislation passes due process
scrutiny so long as Congress had "a legitimate legislative purpose [that it] furthered
by rational means." Gen. Motors Corp. v. Romein, 503 U.S. 181, 191 (1992); see also
United States v. Ne. Pharm. & Chem. Co., Inc., 810 F.2d 726, 733-34 (8th Cir. 1986)
("Due process is satisfied simply by showing that the retroactive application of the
legislation is itself justified by a rational legislative purpose."). To prevail on its due
process claim, CP has the burden of showing there is no "reasonably conceivable state
of facts that could provide a rational basis" for the law. FCC v. Beach Commc'ns,
Inc., 508 U.S. 307, 313 (1993).

CP has not satisfied its heavy burden of showing the amendment violates its due
process rights. The purpose of the amendment is to give railroad accident victims the
right to seek recovery in state courts when they allege railroads violate safety
standards imposed by a railroad's own rules, certain state laws, or federal regulations.
This easily qualifies as a rational legislative purpose for the amendment. Contrary to
CP's claim that the amendment seeks "to impose unlimited liability [upon CP] for" the

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Minot derailment case, CP's Brief at 49, the amendment merely gives injured parties
the chance to seek recovery against railroads. Victims of railroad accidents must still
prove their cases in court. Prior to the amendment, § 20106 had been interpreted in
such a way that an injured person was denied the mere chance to hold a railroad
accountable when its negligence not only violated state common law standards, but
the very federal laws and regulations approved by Congress in an effort to further
railroad safety. It was rational for Congress to "clarify" this result was not an intended
purpose of § 20106 prior to the amendment. Indeed, the very act of enacting a
retroactive statute "to correct the unexpected results of [a judicial] opinion" qualifies
as a legitimate legislative purpose which survives scrutiny under the deferential
rational basis standard of review. Romein, 503 U.S. at 191 (upholding retroactive
legislation against a due process challenge where the legislation was passed to
overturn a particular Michigan Supreme Court opinion interpreting a workers'
compensation statute).

CP contends Congress acted arbitrarily and capriciously by making the
amendment retroactive to January 18, 2002, the very date of the Minot derailment
cases, because by doing so Congress singled out one accident and one railroad (CP).
This argument misses the mark on both the facts and the law. Factually, the
amendment does not single out one accident and one railroad: it applies to "all
pending State law causes of action arising from events or activities occurring on or
after January 18, 2002." 49 U.S.C. § 20106 (b)(2) (emphasis added). From a legal
standpoint, however, even assuming Congress meant to target one particular event or
specific pending litigation, it could do so without violating the constitution so long as
it had a rational basis for doing so. See Plaut, 514 U.S. at 239 n.9 ("Congress may
legislate 'a legitimate class of one'" when it has a rational basis for doing so) (quoting
Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 472 (1977)); see also Robertson v.
Seattle Audobon Soc'y, 503 U.S. 429, 433 (1992) (rejecting a constitutional challenge
to a statute known as the Northwestern Timber Compromise, which Congress passed
to resolve two specific pending lawsuits between environmentalists and the logging

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industry). Congress can rationally decide to pick an effective date for legislation
which will address the particular event which attracted its attention. See Williamson
v. Lee Optical, 348 U.S. 483, 489 (1955) (recognizing legislative "reform may take
one step at a time, addressing itself to the phase of the problem which seems most
acute to the legislative mind"); see also Pension Benefit Guar. Corp. v. R.A. Gray &
Co., 467 U.S. 717, 731 (1984) (refusing to second-guess the balance of benefits and
harms struck by Congress in selecting a statute's effective date, noting "the enactment
of retroactive statutes confined to short and limited periods required by the
practicalities of producing national legislation . . . is a customary congressional
practice").

CP also contends the amendment violates its equal protection rights because it
imposes different standards of accountability on railroads depending on whether they
caused harm before or after January 18, 2002, the amendment's effective date. Unless
a statute creates a suspect classification or impinges upon fundamental rights – and
this one does neither – it must "be upheld against equal protection attack if it is
rationally related to the achievement of legitimate governmental ends." G.D. Searle
& Co. v. Cohn, 455 U.S. 404, 408 (1982).

In addressing CP's due process claim, we already explained Congress had
legitimate legislative purposes for adopting the amendment and acted rationally in
doing so. As a consequence, CP's equal protection argument fails. Moreover, we note
CP's equal protection claim is nothing more than an attack on the amendment's
effective date. Every retroactive statute, by necessity, imposes different standards on
parties affected by the statute, and those differences are directly tied to the statute's
effective date. Thus, if we gave credence to CP's equal protection claim we would in
essence be holding Congress violates the equal protection clause every time it passes
retroactive legislation.

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 Finally, CP argues the amendment violates the Ex Post Facto clause. The Ex
Post Facto clause prohibits "enacting laws that increase punishment for criminal acts
after they have been committed." Doe v. Miller, 405 F.3d 700, 718 (8th Cir. 2005).
It applies only in the criminal context. See, e.g., E. Enters. v. Apfel, 524 U.S. 498,
538 (1998) ("Since Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798), this Court has
considered the Ex Post Facto Clause to apply only in the criminal context.") (Thomas,
J., concurring). While a civil statute may be "so punitive either in purpose or effect
[as to implicate the Ex Post Facto clause], only the clearest proof will suffice to
override legislative intent and transform what has been denominated a civil remedy
into a criminal penalty." Smith v. Doe, 538 U.S. 84, 92 (2003) (internal citations and
quotations omitted).

There is no proof, let alone clear proof, Congress intended the amendment to
§ 20106 as a criminal penalty. The statute affects negligence actions brought by
injured parties against railroads. Such actions are inherently civil in nature. The Ex
Post Facto clause has no application here.

III

Congress did not violate the Constitution when it amended § 20106. As a
consequence, we vacate our decision in Lundeen I and remand these cases to the
district court with instructions in turn to further remand them to state court.

BEAM, Circuit Judge, dissenting.

This appeal presents the question of whether recent amendments to the Federal
Railroad Safety Act (amended version hereinafter referred to as "FRSA II"), initially
adopted in 1970 as 49 U.S.C. § 20106 (original 1970 version hereinafter referred to
as "FRSA I"), change the preemptive and retroactive effect of the law and, if so, to
what extent? Respectfully, I believe that the court, speaking through the panel

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majority, misconceives the substance and applicability of Congress's amendments and
unconstitutionally uses the amended statute to repeal and vacate a final order of this
court that fully and finally grants Canadian Pacific (CP) vested property, procedural
and jurisdictional rights. Accordingly, I dissent.

The underlying facts and legal issues are set forth in some detail in Lundeen v.
Canadian Pacific Railway Co., 447 F.3d 606 (8th Cir. 2006), cert. denied, 127 S. Ct.
1149 (2007) (Lundeen I), and, in a limited, but incomplete, way in the majority's
opinion. Thus, I further outline the extant procedural and chronological circumstances
of this case only as necessary to present a full understanding of this dispute, its history
and its ramifications.

BACKGROUND

Subsequent to the Minot, North Dakota, derailment mentioned by the court, the
Lundeens,1 citizens of North Dakota, filed a common law negligence action in
Minnesota state court against CP, a citizen of Minnesota. In support of their state
common law claim, the Lundeens' initial complaint made a minimal reference in
paragraph V to duties arising under the "Federal Railroad Administration" (FRA)
regulations and very briefly alleged in count seven "breaches of statutory rules and
regulations including, but not limited to, violations of FRA rules and regulations,
violations of the Code of Federal Regulations, . . . and other applicable state or federal
law or administrative regulatory agencies of the States of North Dakota and Minnesota
and the United States government." Complaint at 2, 18-19, Lundeen v. Canadian Pac.
Ry. Co., No. 04-3220 (Dist. Ct. of Minn., Fourth Judicial Dist., Hennepin County,
June 28, 2004). The initial complaint asserted, in counts one through six, id. at 14-18,
common law claims of "negligence, gross negligence, carelessness, recklessness and

1
Herein, "the Lundeens" refers to all plaintiffs consolidated under the lead case,
07-1656, who remain as parties as of the date of this opinion.

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willful, wanton, intentional and deliberate acts and omissions." Id. at 14. These state
claims were accompanied by several specific allegations of negligent and willful acts,
but none of these allegations assert a direct violation of a federal statute, order or
regulation or seek damages directly resulting from such violation.

This pleading, which garnered a forum shopping objection by CP, was
obviously designed to accomplish Minnesota state court adjudication of state common
law claims.2 Indeed, the Lundeens carefully attempted to avoid stating what they
believed to be a federal claim or inadvertently asserting a federal cause of action under
the terms of Grable & Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing, 545 U.S. 308 (2005) and its precursor case Merrell Dow
Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986) (federal jurisdiction lies over
state court claims that implicate significant federal issues). For instance, in response
to CP's removal notice, the Lundeens argued that their citations to "'United States law'
pertain[ed] [only] to federal maintenance and repair regulations [presumably FRSA
regulations] that [CP] violated, causing the train to derail and spill ammonia in
violation of state environmental laws." Lundeen v. Canadian Pac. Ry. Co., 342 F.
Supp. 2d 826, 830 (D. Minn. 2004) (emphasis added).

Nonetheless, CP, pursuant to 28 U.S.C. § 1441(a) and (b), filed a timely notice
of removal of the action to the United States District Court for the District of
Minnesota, alleging federal court jurisdiction based upon the "arising under"
explications found in 28 U.S.C. § 1331. The Lundeens gamely sought remand of the
case to state court, arguing that no section 1331 claims were alleged in their

2
The Minnesota court determined in similar cases proceeding from the January
18, 2002, derailment, that under the applicable choice-of-law provisions, the
substantive law of North Dakota applied. In re Soo Line R.R. Co. Derailment of
January 18, 2002, No. MC 04-007726, 2006 WL 1153359 (Apr. 24, 2006). That
determination is applicable here. While there are also federal law issues at work in
this matter, this ruling is clearly correct with regard to any purely state law claims.

-23-
complaint. But, employing the venerable "well-pleaded complaint rule" established
by Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987), United States District
Judge Richard Kyle disagreed and denied the motion to remand. Judge Kyle found
that the face of the complaint "states a federal question," specifically noting that "[t]he
Complaint alleges that '[CP] violated applicable state law . . . as well as United States
law.'" Lundeen, 342 F. Supp. 2d at 829 (third alteration and emphasis in original).

The Lundeens did not appeal this ruling. Rather, in response to the district
court's determination, the Lundeens moved to amend their complaint to delete all
references to United States law. Judge Kyle, over CP's objection, granted the motion.

Thereafter, the Lundeens filed an amended complaint in which all reference to
federal duties was deleted. With that, they renewed their motion to remand their
claims to state court. The district court determined that it could see no federal
jurisdiction established by the amended complaint and ordered a remand, refusing to
invoke its discretionary federal supplemental jurisdiction over state claims under 28
U.S.C. § 1367, citing as bases Carnegie-Mellon University v. Cohill, 484 U.S. 343,
348 (1988) (remand is appropriate when all federal claims have been dropped and
only state law claims remain), and 28 U.S.C. § 1367(c)(3) (district court may decline
to exercise supplemental jurisdiction if the court has dismissed all claims over which
it had original jurisdiction). This remand judgment "'put[] the litigants . . . "effectively
out of [federal] court" and [was] therefore a final order appealable under 28 U.S.C. §
1291.'" Lindsey v. Dillard's, Inc., 306 F.3d 596, 599 (8th Cir. 2002) (quoting St. John
v. Int'l Ass'n of Machinists & Aerospace Workers, 139 F.3d 1214, 1217 (8th Cir.
1998)). CP appealed (Lundeen I).

While 28 U.S.C. § 1447(c) and (d) preclude appeal of a remand based upon lack
of subject matter jurisdiction, orders "made under § 1367(c)," as here, are reviewable
by the court of appeals. Lindsey, 306 F.3d at 599. This is because such remands are
discretionary under 28 U.S.C. § 1367(c), and are not deemed to be actions based upon

-24-
"lack of subject matter jurisdiction." Id. In this regard, the Supreme Court has
declined (or at least has stated that it has never passed on the issue) to find that a
Cohill remand is subject matter jurisdictional for the appeal- limiting purposes of
sections 1447(c) and (d). Powerex Corp. v. Reliant Energy Servs., Inc., 127 S. Ct.
2411, 2419 n.4 (2007). Accordingly, this panel considered CP's claim of federal
jurisdiction. Lundeen I, 447 F.3d at 611.

On appeal, the Lundeens continued to contend that the amended complaint
asserted only a state common law claim, that there was no private federal cause of
action available to them, and that remand to state court was required. CP, on the other
hand, argued that federal jurisdiction over the litigation was dictated by FRSA I under
the "complete preemption doctrine" announced in Gaming Corp. of America v.
Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir. 1996).

"Complete preemption provides an exception to the well-pleaded complaint
rule" and "can arise when Congress intends that a federal statute preempt a field of
law so completely that state law claims are considered to be converted into federal
causes of action." Id. And, "[t]he issue of whether complete preemption exists is
separate from the issue of whether a private remedy is created under a federal statute."
Id. at 547 (citing Caterpillar, 482 U.S. at 391 n.4).

A federal jurisdictional question presents an issue of law that is reviewed de
novo, and a "district court has no discretion to remand a claim that states a federal
question." Id. at 542. So, following precedent established by this circuit in Peters v.
Union Pacific Railroad Co., 80 F.3d 257, 262 (8th Cir. 1996) and In re Derailment
Cases, 416 F.3d 787, 793-94 (8th Cir. 2005), this panel unanimously, and correctly,
determined that the federal district court had subject matter jurisdiction under the
complete preemption doctrine, reversed Judge Kyle's remand order and returned the
case to the federal district court for further proceedings consistent with the judgment.

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Lundeen I, 447 F.3d at 614-15. The case was reassigned to Chief United States
District Judge James Rosenbaum.

The Lundeens immediately sought rehearing and rehearing en banc by the
court, which was denied. The mandate issued and the Lundeens petitioned the
Supreme Court for a writ of certiorari, specifically contesting the circuit's complete
preemption ruling and the existence of federal court jurisdiction. See Petition for Writ
of Certiorari, Lundeen I, No. 06-528 (Oct. 16, 2006). The Lundeens sought a stay in
district court while their Supreme Court petition was pending. On January 22, 2007,
the Supreme Court denied certiorari. The district court then addressed the Lundeens'
preemption and jurisdiction arguments. The Lundeens argued in the district court that
whatever preemptive effect must be accorded FRSA I, the statute and its duly
promulgated orders and regulations were not specifically detailed enough to
substantially subsume plaintiffs' separate state common law negligence claims and,
thus, did not preempt them. Lundeen v. Canadian Pac. Ry. Co., No. 04-3220, slip op.
at 7-12 (D. Minn. Feb. 2, 2007). In the alternative, the Lundeens contended that their
common law claims "merely parallel duties imposed by [the] federal regulation." Id.
at 18. The district court noted that the Lundeens failed to provide any binding
precedent supporting their "parallel claim" proposition. Id. at 19. And, further, that
their claims failed under the applicable FRSA preemption standards. This holding is
in line with the Lundeens' argument before this court in Lundeen I when counsel
stated, "we never intended to assert a federal claim . . . if you look at the original
complaint, the clear gravamen of that complaint is state law claims–negligence,
personal injury and property damage–arising out of this derailment." Lundeen I, Oral
Argument, Oct. 14, 2005. The district court ruled that all claims in the Lundeens'
amended complaint were within the subject matter of FRSA I and completely
preempted by the Act. There being no discernible federal private cause of action
under FRSA I, the district court dismissed the amended complaint with prejudice on
February 2, 2007. Lundeen, No. 04-3220, slip op. at 22. Thereafter, the Lundeens

-26-
noticed the current appeal. Lundeen v. Canadian Pac. Ry. Co., No. 07-1656 (8th Cir.)
(Lundeen II).

In this appeal, the Lundeens persist in arguing that "[m]ost of [their] claims are
not covered, or even addressed at all, by federal requirements." Br. of Appellants at
24, Lundeen II, (8th Cir. May 11, 2007). They claim the district court erred in
applying FRSA preemption so broadly. The Lundeens state that because FRSA I
targets only federal "law, regulation, or order," tort remedies provided by the states
by way of common-law duties are actionable and not preempted, citing Bates v. Dow
Agrosciences LLC, 544 U.S. 431, 443-44 (2005).

The Lundeens also assert that the preemptive scope of FRSA I should be
disregarded because Congress could not have meant to bar all judicial recourse for
their damage claims. Unfortunately for them, Riegel v. Medtronic, Inc., 128 S. Ct.
999 (2008), rejects this proposition. Riegel explains that this is often exactly what a
federal preemption clause does–it bars state common law claims even without making
a private federal cause of action available to an injured party. Id. at 1009.

On August 3, 2007, while this appeal pended for nearly six months, Congress
enacted, through an unrelated Conference bill, partially retroactive legislation
amending FRSA I. With this enactment, the Lundeens changed the nature of their
arguments on appeal, asserting new rights and assigning new liabilities arising from
FRSA II, all the while misapplying part of the language of the amended statute. They
now mainly claim that the amendments essentially eliminate the preemptive thrust of
FRSA I and make this change retroactive to January 18, 2002, the date of the Minot
derailment. They seek vacation of Lundeen I and Judge Rosenbaum's order and
judgment dismissing the pending action on their pleadings. The Lundeens also seek
remand of their common law negligence claims (considered in Judge Kyle's ruling)
to the Minnesota state court for further proceedings. The Lundeens' formal request
in this regard comes by way of a Motion to Affirm [Judge Kyle's] March 9, 2005,

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Remand Order. In essence, this motion, based upon the congressional amendments
that create FRSA II, seeks a legislative reversal of the court's federal jurisdictional
ruling in Lundeen I.

DISCUSSION

A. The New Statute

FRSA II reads as follows

(a) National uniformity of regulation.–(1) Laws, regulations, and
orders related to railroad safety and laws, regulations, and orders related
to railroad security shall be nationally uniform to the extent practicable.
(2) A State may adopt or continue in force a law, regulation, or order
related to railroad safety or security until the Secretary of Transportation
(with respect to railroad safety matters), or the Secretary of Homeland
Security (with respect to railroad security matters), prescribes a
regulation or issues an order covering the subject matter of the State
requirement. A State may adopt or continue in force an additional or
more stringent law, regulation, or order related to railroad safety or
security when the law, regulation, or order–
(A) is necessary to eliminate or reduce an essentially local
safety or security hazard;
(B) is not incompatible with a law, regulation, or order of
the United States Government; and
(C) does not unreasonably burden interstate commerce.
(b) Clarification regarding State law causes of action.–(1) Nothing in
this section shall be construed to preempt an action under State law
seeking damages for personal injury, death, or property damage alleging
that a party–
(A) has failed to comply with the Federal standard of care
established by a regulation or order issued by the Secretary
of Transportation (with respect to railroad safety matters),
or the Secretary of Homeland Security (with respect to

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 railroad security matters), covering the subject matter as
provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard
that it created pursuant to a regulation or order issued by
either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or
order that is not incompatible with subsection (a)(2).
(2) This subsection shall apply to all pending State law causes of action
arising from events or activities occurring on or after January 18, 2002.
(c) Jurisdiction.–Nothing in this section creates a Federal cause of
action on behalf of an injured party or confers Federal question
jurisdiction for such State law causes of action.

49 U.S.C. § 20106(a)-(c) (Aug. 3, 2007). Subsection (a) of amended section 20106
is a word-for-word rendition of 49 U.S.C. § 20106 as it existed in its entirety prior to
the August 3, 2007, amendments.

B. Preemption

The court majority, at the Lundeens' urging, sees sweeping consequences
arising from FRSA II. For example, the majority says "[t]his 'clarifying' amendment,"
referring to new subsection (b), "reflected Congress's disagreement with the manner
in which the courts, including our own Lundeen I, had interpreted [FRSA I] to
preempt state law causes of action whenever a federal regulation covered the same
subject matter as the allegations of negligence in a state court lawsuit." Ante at 17.
Respectfully, the amendment reflects nothing of the sort. Indeed, the adoption of such
an expansive and simplistic rationale over-reads subsections (b) and (c), essentially
repealing subsection (a) of the amended Act and stripping federal jurisdiction from
both versions of the legislation.3

3
Adoption of the majority's overreaching conclusions would appear to strip
federal appeals courts of jurisdiction to carry out their appellate duties over the
administrative activities of the Secretary of Transportation and Attorney General. 49

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 Before the Lundeens' claims can be evaluated, a correct interpretation of the
amended statute must be undertaken. Prior to proceeding, however, we are
necessarily reminded of three important points. First, an elemental canon of statutory
construction requires that an enactment be interpreted so as not to render one of
several parts inoperative, especially a part that represents the fundamental thrust of the
legislation.4 Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237,
249 (1985) (citing Colautti v. Franklin, 439 U.S. 379, 392 (1979)). Second, as earlier
noted, subsection (a) of FRSA II is a word-for-word reenactment of FRSA I as the
statute had existed since 1970. Third, at least three panels of this court have construed
the language contained in FRSA I as preempting the field of railroad safety and

U.S.C. §§ 20111, 20112. Appellate review is contemplated by these enforcement
provisions.
4
There can be no real argument that the overriding purpose and legislative intent
of both FRSA I and FRSA II(a), as expressed in the unambiguous language of the two
statutes and as complemented by the 1970 legislative history of FRSA I, is the
creation of federally imposed national uniformity of laws, regulations and orders
related to railroad safety as prescribed by the Secretary of Transportation. The
legislative history of the Act states:

The committee does not believe that 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. . . . [States] will have no authority to assess and
compromise penalties or to seek State judicial action. . . . This
Committee is of the opinion that the provision that States be permitted
to enforce Federal standards does not lend itself to the regulation of the
railroad industry; [subject to exceptions not relevant here]. . . . With the
exception of industrial or plant railroads, the railroad industry has very
few local characteristics. Rather, in terms of its operation, it has a truly
interstate character calling for a uniform body of regulation and
enforcement. It is a national system.

H.R. Rep. No. 91-1194 at 4109-10 (1970) (emphasis added).

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subsuming any state common law causes of action purporting to arise under the
subject matter of this section. Peters, 80 F.3d at 262; In re Derailment Cases, 416 F.3d
at 793-98; and Lundeen I, 447 F.3d at 615.

With these principles in mind, I turn to the amended statute.

Subsection (a) of FRSA II, like its earlier counterpart FRSA I, unambiguously
requires national uniformity of railroad safety laws, regulations and orders. And, as
noted in footnote four, the legislative history of the Act reflects Congress's
overarching intent that railroad safety be the ultimate right and responsibility of the
federal government and not the province of the fifty states as well as the federal
government. Thus, to make operative the intent of subsection (a), subsections (b) and
(c), if they pass muster under the Constitution,5 must be read as narrowly as necessary
to avoid an implied repeal of subsection (a)'s continuing and clearly stated federal
railroad safety act preemptions. Indeed, it would be incongruous for Congress to
reenact 49 U.S.C. § 20106(a) as the mirror image of 49 U.S.C. § 20106 only to
essentially repeal it under the guise of "clarifications" set forth in section 20106(b).6
Yet, that is exactly what the Lundeens propose and what the panel majority embraces.

To avoid this untoward result, subsection (b) must be read for what it is, a
limited and focused exception to the preemptive intent of subsection (a).
Significantly, subsection (b) opens doors for plaintiffs like the Lundeens. By way of
subsection (b)(1), Congress has authorized the creation of a state cause of action, but

5
CP contends that this entire amendatory exercise by Congress is
unconstitutional, and it may well be. Applying the doctrine of constitutional
avoidance, we need not answer this question because we can decide this dispute by
applying the amended statute. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936).
6
It is clear that the FRA agrees with this assessment. See 49 C.F.R. §§ 217.2
and 218.4.

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at the same time has carefully protected the concept of federal uniformity established
by subsection (a). This cause of action is limited to allegations regarding the failure
of a defendant to comply with the federal standards of care established by regulation
or order issued by the Secretary of Transportation, or the failure to comply with a
plan, rule or standard created pursuant to regulation or order of the Secretary. This
limited claim for damages preserves the federal uniformity demanded by the FRSA.
Accordingly, any state law cause of action permitting railroad liability based upon
more expansive state-based requirements than those directly established by the
Secretary's regulations, rules or orders, does not pass muster under FRSA II.7 In the
end, states are free to enact legislatively, or, if permitted by state law, adopt by way
of common law pronouncement from a state's highest court, a private damages remedy
limited by the language of section 20106(b)(1). Viewing this matter from another
perspective, if the subsection (b)(1) cause of action is not limited to a remedy based
wholly upon a violation of the Secretary's regulations and orders, subsection (a) of the
amended Act essentially becomes a dead letter.

To protect the uniformity required by subsection (a), subsection (b)(1) imposes
specific pleading standards, as Congress often does in preemption clauses. See, e.g.,
Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f); Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006); see also In re NVE
Corp. Sec. Litig., No. 07-2931, 2008 WL 2220428 (8th Cir. May 30, 2008) (Private
Securities Litigation Reform Act requires the pleading of specific statements and
particular facts).

Subsection (c) of FRSA II specifies that the amended Act does not create a
federal private cause of action (a matter that has never been advanced by the Lundeens

7
Subsection (a)(2)(A), (B), and (C), of course, permits a state to adopt
requirements that are purely local in nature, not incompatible with federal regulations
and orders such as those of the Secretary of Transportation or that do not unreasonably
burden interstate commerce. No such adoptions are in play in this appeal.

-32-
or CP) or confer federal question jurisdiction arising under the limited state law cause
of action authorized by subsection (b)(1). On the other hand, subsection (c) does not
strip federal jurisdiction from any matter covered by the amended Act except for the
newly created subsection (b)(1) action. Neither does subsection (c) preclude federal
diversity jurisdiction over either an original filing or a case removed under 28 U.S.C.
§ 1441(a) and (b).8

Despite the clarification at (b)(1), the Lundeens' present state causes of action
are preempted. Riegel provides guidance. Justice Scalia, for the Riegel Court,
canvasses and discusses the preemption precedent established in Cipollone v. Liggett
Group, Inc., 505 U.S. 504 (1992); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996); and
Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), the seminal cases on
preemption prior to Riegel. But, Riegel is the primer from which we read.

Charles Riegel was injured when his physician attempted to install (or
misinstall) a heart catheter device manufactured and marketed by Medtronic. The
device had received pre-marketing approval from the federal Food and Drug
Administration (FDA) under the Medical Device Amendments of 1976 (MDA). 21
U.S.C. §§ 360c et seq. The MDA includes an express preemption provision somewhat
similar to that found in FRSA II. It states:

Except as provided in subsection (b) of this section, no State or political
subdivision of a State may establish or continue in effect with respect to
a device intended for human use any requirement–
(1) which is different from, or in addition to, any
requirement applicable under this chapter to the device, and

8
The provisions of 28 U.S.C. § 1332 clearly create federal diversity jurisdiction,
including diversity removal jurisdiction, over a subsection (b) state-created remedy.
Whatever else the amendments creating FRSA II may do, they clearly do not abrogate
federal diversity jurisdiction over any disputes arising under the Act, or, in fact,
arising in this case.

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 (2) which relates to the safety or effectiveness of the device
or to any other matter included in a requirement applicable
to the device under this chapter. § 360k(a).
The exception contained in subsection (b) [like those found in FRSA II]
permits the FDA to exempt some state and local requirements from pre-
emption.

Riegel, 128 S. Ct. at 1003 (quoting 21 U.S.C. § 360k). Riegel and his spouse brought
suit seeking a New York state common law remedy based upon a number of causes
of action including the common law tort of negligence. The district court found
preemption and the Second Circuit affirmed, saying the Riegels' common law claims
were pre-empted because they "would, if successful, impose state requirements that
differed from, or added to" the device-specific federal requirements. Riegel v.
Medtronic, Inc., 451 F.3d 104, 121 (2d Cir. 2006), aff'd, 128 S. Ct. 999 (2008). The
Supreme Court granted certiorari.

Analyzing section 360k(a)'s "different from or in addition to" language, Riegel
observed that

In Lohr, five Justices concluded that common-law causes of action for
negligence and strict liability do impose "requirement[s]" and would be
pre-empted by federal requirements specific to a medical device. We
adhere to that view. In interpreting two other statutes we have likewise
held that a provision pre-empting state "requirements" pre-empted
common-law duties. Bates v. Dow Agrosciences LLC, 544 U.S. 431
(2005), found common-law actions to be pre-empted by a provision of
the Federal Insecticide, Fungicide, and Rodenticide Act that said certain
States "'shall not impose or continue in effect any requirements for
labeling or packaging in addition to or different from those required
under this subchapter.'" Id. at 443. Cipollone v. Liggett Group, Inc., 505
U.S. 504 (1992), held common-law actions pre-empted by a provision of
the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. § 1334(b)
which said that "[n]o requirement or prohibition based on smoking and
health shall be imposed under State law with respect to the advertising

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 or promotion of any cigarettes" whose packages were labeled in
accordance with federal law. See 505 U.S. at 523 (plurality opinion); id.
at 548-549 (Scalia, J., concurring in judgment in part and dissenting in
part).

. . . As the plurality opinion said in Cipollone, common-law liability is
"premised on the existence of a legal duty," and a tort judgment therefore
establishes that the defendant has violated a state-law obligation. Id. at
522. And while the common-law remedy is limited to damages, a
liability award "'can be, indeed is designed to be, a potent method of
governing conduct and controlling policy.'" Id. at 521.

Riegel, 128 S. Ct. at 1007-08 (some citations omitted). Affirming the Second Circuit,
Riegel determined that the Riegels' state negligence action was preempted by section
360k(a) of the MDA.

I concede that the MDA as discussed in Riegel deals with a product or service
different from that of the FRSA. But, for preemption analysis, any differences are
immaterial–the preemption language and the regulatory requirements are analogous.
For federal preemption purposes, a medical device manufactured and marketed under
a regime employing specific federal safety requirements is little different from a
railroad service formulated and delivered under specific federal safety regulations.
Thus, Riegel provides the precedent we must apply.

Like the medical device in Riegel, the railroad service in Lundeen is entitled to
be delivered free of state requirements that differ from the federal regime. And, when
the amended statute is properly construed, the limited state cause of action authorized
by FRSA II fits within that paradigm. So, with minor exceptions not applicable in
Lundeen, all state railroad safety requirements that are in addition to or different from
those established under FRSA II are preempted. Paraphrasing Justice Scalia's
comment in Riegel, excluding North Dakota common law duties from the scope of
FRSA II preemption scheme would make little sense. Id. at 1008.

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 At the bottom line, FRSA II authorizes North Dakota to provide the Lundeens
a state court cause of action designed to carefully protect the uniformity demanded by
subsection (a). This is so because any alleged violations of duty by CP must be based
upon breaches of standards of conduct promulgated by the Secretary of Transportation
by authority of subsection (a). There being no indication that any such limited remedy
has yet been enacted or adopted (or that any such remedy has been pleaded even if it
were to exist), the Lundeens' amended complaint is preempted by FRSA II as a matter
of law. Accordingly, the district court must be affirmed and the case dismissed
without prejudice to the filing of a new suit by the Lundeens if and when an FRSA II-
authorized state action is created in North Dakota.

C. Retroactivity

Overlooking a narrowed construction of FRSA II, and relying upon the efficacy
of their amended complaint, the Lundeens advance a broad retroactive application of
the amended law. They seem to contend, as apparently does the panel majority, that
the new legislation wholly unravels Lundeen I and even breathes new life into Judge
Kyle's remand order reversed by the unanimous panel. This is error.

Following the enactment of FRSA II, the Lundeens, as earlier recognized, filed
in this appeal a Motion to Affirm [Judge Kyle's] March 9, 2005, Remand Order. The
pleading asserts several unsupportable claims concerning retroactivity, especially a
claim regarding the purported clarifications and statements in subsections (b) and (c).
The motion contends that notwithstanding the language of subsection (a), subsection
(b)(1), supplemented by the retroactive thrust of subsection (b)(2), provides that on
and after January 18, 2002, their amended complaint totally survives FRSA I
preemption. Again, this grossly misreads the legislation. The Lundeens argue that
"[c]ongressional intent is the touchstone for determining the preemptive effect of a
statute." Wuebker v. Wilbur-Ellis Co., 418 F.3d 883, 886 (8th Cir. 2005). I agree.
However, the problem facing the Lundeens is that such intent emerges from the

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statutory language and, if ambiguity exists, with the help of legislative history.
Legislative intent does not spring from the wishes and hopes of a disappointed party.

The pronouncements of subsection (b)(2) do not help the Lundeens. In fact,
two problems emerge for them with regard to Judge Kyle's order. First, any
retroactivity announced in subsection (b)(2) refers to and runs only to causes of action
enabled by and filed under authority of subsection (b)(1). Likewise, any dilution of
federal jurisdiction announced in subsection (c) runs only to state law causes of action
authorized by subsection (b)(1), not to North Dakota common law assertions made by
the Lundeens in their amended complaint and considered when FRSA I was the law.
And, it bears repeating, Congress addressed no issue of retroactivity except that found
in subsection (b)(2), which by its language applies only to subsection (b).9
Accordingly, none of the issues decided by Judge Kyle or this panel in Lundeen I are
reached by the language of FRSA II.

Second, the jurisdictional finding of Lundeen I was a final judgment that cannot
constitutionally be reopened or reversed by Congress or this court. Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995). I agree with the Lundeens that
constitutionally enacted legislative amendments must be applied to pending litigation.
Id. at 226. But here, even assuming the constitutionality of FRSA II, that means we
must apply the legislation only to the instant appeal–a review of Judge Rosenbaum's
order of dismissal. Lundeen I and the prior jurisdictional rulings concerning the

9
"[A] presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic."
Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). We will not construe
enactments to have retroactive effect unless their language requires this result. Id. at
272. Thus, we look to the clear intent of Congress, as set forth in the statutory
language. Id. Requiring such expression of intent by Congress "assures that Congress
itself has affirmatively considered the potential unfairness of retroactive application."
Id. In this case, we do not, then, second-guess why Congress applied the retroactivity
language in (b)(2) only to the state law causes of action contemplated in (b)(1).

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Lundeens' amended complaint are not pending. Thus, the Lundeens miss the mark in
their motion.

I recap their problem in this context. Lundeen I decided an issue of federal
subject matter jurisdiction under FRSA I. So, as previously stated, the reference to
retroactive validity of "State law causes of action" found in subsection (b)(2), neither
mentions nor by implication applies to subsection (a), the portion of FRSA II in force
and effect when Judge Kyle ruled and this court decided Lundeen I.10 Thus, to repeat
an earlier point, any retroactive language in (b)(2) neither refers to nor affects (a), only
(b)(1). But, the Lundeens contend that so long as Judge Rosenbaum's judgment of
dismissal is on appeal in the federal court hierarchy, Judge Kyle's remand order is
likewise on appeal and open for modification and affirmance. The Lundeens supply
no support for this theory, other than reliance on Plaut, which runs to the contrary.

Lundeen I's jurisdictional judgment has been fully appealed, including a writ
of certiorari to the Supreme Court, and any appeal day has long since passed. Indeed
Lundeen I is not a "judgment[] still on appeal" in any sense contemplated by Plaut.
Plaut, 514 U.S. at 226. The Lundeens mistake the Court's language in Plaut to apply
to a pending case. But, Plaut speaks to the effect of newly created, retroactive law on
pending judgments. Plaut clarifies that "the decision of an inferior court is not (unless
the time for appeal has expired [as it has in Lundeen I]) the final word of the
department as a whole." Id. at 227 (emphasis added). This means that once the time

10
See, e.g., Boumediene v. Bush, Nos. 06-1195, 06-1196, 2008 WL 2369628,
at *34 (U.S. June 12, 2008) ("'"[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion."'") (quoting Russello v. United States, 464 U.S. 16, 23 (1983) (quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))). Here, Congress
provided language mandating retroactivity in subsection (b)(2) referring directly to
subsection (b)(1) but provided no language whatever concerning retroactivity of
subsection (a) or any other portion of the amended statute.

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for appeal has expired, the word of the last court in the hierarchy that ruled on the case
is final, and not pending. Id.

Any congressional attempt to reverse Lundeen I, as suggested by the Lundeens,
presents an insurmountable separation of powers problem. While not a perfect fit on
the issue, Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1855)
(Wheeling II) is path-marking. Wheeling II determined that when pending executory
rulings, such as injunctions, are at issue, subsequent congressional intent may amend
such an interlocutory ruling. However, when an appealable judgment is an action at
law, as here, and has been finalized under all available appeal procedures, the right to
alter the judgment has "passed beyond the reach of the power of congress." Id. at 431.
The Supreme Court has analyzed the separation of powers issues in similar
circumstances. In Plaut, the Court held that Congress violates the fundamental
principle of the separation of powers when it retroactively commands the federal
courts to reopen final judgments. Plaut, 514 U.S. at 219. "'A legislature without
exceeding its province cannot reverse a determination once made, in a particular case;
though it may prescribe a new rule for future cases.'" Id. at 222 (quoting The
Federalist No. 81, p. 545 (J. Cooke ed. 1961)).

While Judge Rosenbaum's judgment of dismissal may be on appeal, and subject
to amendment and reversal by congressional enactment, this panel's unanimous
judgment in Lundeen I based upon a then-valid preemption mandate, that has not been
retroactively disturbed by statutory language and has been fully vetted by the court en
banc and the Supreme Court, is not subject to congressional disposition. It is a final
judgment that may not be upset by an inapplicable portion of subsequent legislation.
The majority errs in its ruling to the contrary.11

11
I note, too, with an emphasis on the "need to preserve finality in judicial
proceedings," that the court majority fails to discuss the authority under which we
recall the mandate in Lundeen I. Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86,
89 (2d Cir. 1996). The panel majority's opinion is void of any discussion concerning

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 CONCLUSION

The Lundeens and the panel majority misread, misstate and misapply both the
preemptive impact and the retroactive effect of the amended statute.

Accordingly, the Lundeens' Motion to Affirm [Judge Kyle's] March 9, 2005,
Remand Order should be denied and Judge Rosenbaum's judgment of dismissal
should be affirmed, but without prejudice.

I dissent.
______________________________

the exceptional circumstances needed to warrant their action. Calderon v. Thompson,
523 U.S. 538, 549-50 (1998).

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