(Slip Opinion) OCTOBER TERM, 2010 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

CSX TRANSPORTATION, INC. v. ALABAMA DEPARTMENT OF REVENUE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 09–520. Argued November 10, 2010—Decided February 22, 2011 

Petitioner (CSX) is an interstate rail carrier that operates, and pays

taxes, in Alabama. The State imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts their 

main competitors—interstate motor and water carriers. CSX sued 

respondents, the Alabama Department of Revenue and its Commissioner (Alabama), claiming that this tax scheme discriminates 

against railroads in violation of the Railroad Revitalization and 

Regulatory Reform Act of 1976 (4–R Act or Act), which bars four

forms of discriminatory taxation, 49 U. S. C. §11501(b). Three of the 

delineated prohibitions deal with property taxes, §§11501(b)(1)–(3),

and the fourth is a catch-all provision that forbids a State to 

“[i]mpose another tax that discriminates against a rail carrier,” 

§11501(b)(4). The District Court dismissed CSX’s suit as not cognizable under the 4–R Act on the basis of this Court’s decision in Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 

and the Eleventh Circuit affirmed. 

Held: CSX may challenge Alabama’s sales and use taxes under 

§11501(b)(4). Pp. 5–19.

(a) CSX is challenging “another tax” within subsection (b)(4)’s plain

meaning. The Act does not define “tax.” Thus, this Court looks to the 

word’s ordinary definition, which is expansive. A State seeking to

raise revenue may choose among multiple forms of taxation on property, income, transactions, or activities. “[A]nother tax” is thus best

understood to encompass any tax a State might impose, on any asset 

or transaction, except the property taxes already addressed in subsections (b)(1)–(3). There is no reason to interpret subsection (b)(4)

as applying only to the gross-receipts taxes that some States imposed 
2 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Syllabus 

in lieu of property taxes at the time of the Act’s passage. Moreover, 

CSX’s complaint, contrary to the Eleventh Circuit’s apparent view,

does protest Alabama’s imposition of taxes on its fuel. The exemptions the State has given may play a central role in CSX’s argument, 

but the complaint’s essential subject remains the taxes imposed. 

The key question thus becomes whether a tax might be said to “discriminate” against a railroad under subsection (b)(4) where the State

has granted exemptions from the tax to other entities (here, the railroad’s competitors). Because the statute does not define “discriminates,” the Court again looks to the term’s ordinary meaning, which 

is to fail to treat all persons equally when no reasonable distinction

can be found between those favored and those not favored. To charge

one group of taxpayers a 2% rate and another group a 4% rate, if the

groups are the same in all relevant respects, is to discriminate

against the latter. That discrimination continues if the favored 

group’s rate goes down to 0%, which is all an exemption is. To say

that such a tax does not “discriminate” is to adopt a definition at odds

with the word’s natural meaning. This Court has repeatedly recognized that tax schemes with exemptions may be discriminatory. See, 

e.g., Davis v. Michigan Department of Treasury, 489 U. S. 803. And 

even Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 

332, on which the Eleventh Circuit heavily relied in dismissing CSX’s 

suit, made clear that tax exemptions “could be a variant of tax discrimination.” Id., at 343. In addition, the statute’s prohibition of discrimination applies regardless whether the favored entities are interstate or local. The distinctions drawn in the statute are not between 

interstate and local actors, as Alabama suggests, but between railroads and all other actors, whether interstate or local. Pp. 5–10.

(b) ACF Industries does not require a different result. There, the 

Court held that railroads could not contest property tax exemptions

under subsection (b)(4), reasoning that it would be illogical to permit

such a challenge when subsections (b)(1)–(3)—the §11501 provisions

specifically addressing property taxes—permitted States to grant

property tax exemptions. Such a reading would “subvert the statutory plan” and “contravene the ‘elementary canon of construction that

a statute should be interpreted so as not to render one part inoperative.’ ” 510 U. S., at 340. Contrary to Alabama’s argument, this

structural analysis does not apply here. Subsections (b)(1)–(3) specifically allow property tax exemptions, but neither they nor any 

other provision of the Act speaks to non-property exemptions like

those at issue here. Because Congress has expressed no intent to

“allo[w] the States to grant” non-property exemptions, id., at 343, 

reading subsection (b)(4) to encompass them poses no danger of “nullify[ing]” a congressional policy choice or otherwise “subverting the 
Cite as: 562 U. S. ____ (2011) 3 

Syllabus 

statutory plan,” id., at 340, 343. Alabama’s other efforts to borrow 

from ACF Industries’ analysis similarly fail. Also unavailing is Alabama’s argument that, even if ACF Industries’ reasoning is limited to

property tax exemptions, its holding must extend to non-property tax

exemptions in order to prevent inconsistent or anomalous results in

the treatment of property and non-property taxes. Pp. 11–18. 

350 Fed. Appx. 318, reversed and remanded. 

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and SCALIA, KENNEDY, BREYER, ALITO, and SOTOMAYOR, JJ., 

joined. THOMAS, J., filed a dissenting opinion, in which GINSBURG, J., 

joined. 
_________________ 

_________________ 

Cite as: 562 U. S. ____ (2011) 1 

Opinion of the Court 

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. 09–520 

CSX TRANSPORTATION, INC., PETITIONER v.

ALABAMA DEPARTMENT OF REVENUE 

ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[February 22, 2011] 

JUSTICE KAGAN delivered the opinion of the Court. 

The Railroad Revitalization and Regulatory Reform Act

of 1976 restricts the ability of state and local governments 

to levy discriminatory taxes on rail carriers. We consider 

here whether a railroad may invoke this statute to challenge sales and use taxes that apply to rail carriers

(among others), but exempt their competitors in the

transportation industry. We conclude that the railroad 

may do so. 

I 

A 

Congress enacted the Railroad Revitalization and Regulatory Reform Act of 1976 (Act or 4–R Act) to “restore the 

financial stability of the railway system of the United

States,” among other purposes. §101(a), 90 Stat. 33. To 

help achieve this goal, Congress targeted state and local

taxation schemes that discriminate against rail carriers. 

Burlington Northern R. Co. v. Oklahoma Tax Comm’n, 481 

U. S. 454, 457 (1987). The provision of the Act at issue 
2 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

here, now codified at 49 U. S. C. §11501,1 bars States and 

localities from engaging in four forms of discriminatory

taxation. 90 Stat. 54. 

Section 11501(b) describes the prohibited practices. It 

begins with three provisions addressed specifically to property taxes; it concludes with a catch-all provision concerning other taxes. According to §11501(b), States (or 

their subdivisions) “may not”: 

“(1) Assess rail transportation property at a value that 

has a higher ratio to the true market value of the rail 

transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the 

true market value of the other commercial and industrial property. 

“(2) Levy or collect a tax on an assessment that may 

not be made under paragraph (1) of this subsection. 

“(3) Levy or collect an ad valorem property tax on rail 

transportation property at a tax rate that exceeds the 

tax rate applicable to commercial and industrial property in the same assessment jurisdiction. 

“(4) Impose another tax that discriminates against a 

rail carrier.” 

The following subsection confers jurisdiction on federal

courts to “prevent a violation” of §11501(b) notwithstanding the Tax Injunction Act, 28 U. S. C. §1341, which ordinarily prohibits federal courts from enjoining the collection of state taxes when a remedy is available in state 

—————— 

1This provision was originally codified at 49 U. S. C. §26c (1976 ed.). 

In 1978, Congress recodified it at §11503 (1976 ed., Supp. II), with 

slightly altered language but “without substantive change,” §3(a), 92 

Stat. 1466. In 1995, Congress again recodified the section without

substantive change, this time at 49 U. S. C. §11501. This opinion refers 

to the statute’s current text. 
Cite as: 562 U. S. ____ (2011) 3 

Opinion of the Court 

court. §11501(c).2 

B 

Petitioner CSX Transportation, Inc. (CSX) is an interstate rail carrier that operates in Alabama and pays taxes

there. Alabama imposes a sales tax of 4% on the gross 

receipts of retail businesses, Ala. Code §40–23–2(1) (2010 

Cum. Supp.), and a use tax of 4% on the storage, use, or 

consumption of tangible personal property, §40–23–61(a)

(2003). Railroads pay these taxes when they purchase or

consume diesel fuel. But railroads’ main competitors—

interstate motor and water carriers—are generally exempt

from paying sales and use taxes on their fuel (although

fuel for motor carriers is subject to a separate excise tax).3 

Alleging that Alabama’s tax scheme discriminates 

against railroads in violation of §11501(b)(4) of the 4–R 

Act, CSX sued respondents, the Alabama Department of

Revenue and its Commissioner (Alabama or State), in 

Federal District Court. In particular, CSX complained

that the State could not impose sales and use taxes on

railroads’ purchase and consumption of diesel fuel while 

—————— 

2The first sentence of subsection (c) provides: “Notwithstanding section 1341 of title 28 . . . a district court of the United States has 

jurisdiction . . . to prevent a violation of subsection (b) of this section.” 

The next sentence concerns the relief available for violations of 

§§11501(b)(1) and (2): “Relief may be granted under this subsection

only if the ratio of assessed value to true market value of rail transportation property exceeds by at least 5 percent the ratio of assessed value

to true market value of other commercial and industrial property in the 

same assessment jurisdiction.” 3State law provides that motor carriers need not pay sales or use 

taxes on diesel fuel so long as they pay a different excise tax of $0.19 

per gallon. Ala. Code §40–17–2(1) (2003) (primary tax of $0.13 per

gallon); §40–17–220(e) (2010 Cum. Supp.) (additional tax of $0.06 per

gallon). State law wholly exempts interstate water carriers from sales 

and use taxes on diesel fuel. §40–23–4(a)(10); §40–23–62(12). Nor do 

these water carriers pay any other tax on the fuel they purchase or 

consume. Brief for Respondents 16. 
4 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

exempting motor and water carriers from those taxes. 

App. 22 (Complaint ¶26). 

The District Court dismissed CSX’s suit as not cognizable under the 4–R Act, and the United States Court of 

Appeals for the Eleventh Circuit affirmed in a brief per 

curiam decision. 350 Fed. Appx. 318 (2009). The Eleventh Circuit rested on its earlier decision in Norfolk 

Southern R. Co. v. Alabama Dept. of Revenue, 550 F. 3d 

1306 (2008), which involved a nearly identical challenge to

the application of Alabama’s sales and use taxes. 

In Norfolk Southern, the Eleventh Circuit rejected the

plaintiff railroad’s challenge, principally in reliance on this

Court’s decision in Department of Revenue of Ore. v. ACF 

Industries, Inc., 510 U. S. 332 (1994). In that case, we 

held that a railroad could not invoke §11501(b)(4) to challenge a generally applicable property tax on the basis that 

certain non-railroad property was exempt from the tax. 

Id., at 335. The Eleventh Circuit recognized that the case

before it involved sales and use taxes—not property taxes, 

which the statutory scheme separately addresses. Norfolk 

Southern, 550 F. 3d, at 1314. The court concluded, however, that this difference was immaterial, and accordingly

held that a railroad could not object to Alabama’s sales 

and use taxes simply because the State provides exemptions from them. Id., at 1316. 

CSX petitioned for a writ of certiorari, arguing that the

Eleventh Circuit had misunderstood ACF Industries and 

noting a split of authority concerning whether railroads

may bring a challenge under §11501(b)(4) to non-property 

taxes from which their competitors are exempt.4 We 

—————— 

4Compare Norfolk Southern R. Co. v. Alabama Dept. of Revenue, 550 

F. 3d 1306, 1316 (CA11 2008), and Atchison, T. & S. F. R. Co. v. Arizona, 78 F. 3d 438, 443 (CA9 1996) (rejecting a railroad’s challenge to a

use tax that exempted motor carriers), with Burlington N., S. F. R. Co. 

v. Lohman, 193 F. 3d 984, 986 (CA8 1999) (entertaining a challenge to 

a sales and use tax that exempted rail carriers’ competitors), Burling­
Cite as: 562 U. S. ____ (2011) 5 

Opinion of the Court 

granted certiorari, 560 U. S. ____ (2010), and now reverse. 

II 

We begin, as in any case of statutory interpretation,

with the language of the statute. Hardt v. Reliance Standard Life Ins. Co., 560 U. S. ___, ___ (2010) (slip op., at 8). 

Section 11501(b)(4) provides that a State may not 

“[i]mpose another tax that discriminates against a rail 

carrier.” CSX wishes to bring an action under this provision because rail carriers, but not motor or water carriers, 

must pay Alabama’s sales and use taxes on diesel fuel. To 

determine whether this suit may go forward, we must

therefore answer two questions. Is CSX challenging “another tax” within the meaning of the statute? And, if so, 

might that tax “discriminate” against rail carriers by

exempting their competitors?5 

—————— 

ton No. R. Co. v. Commissioner of Revenue, 606 N. W. 2d 54, 58–59 

(Minn. 2000) (same), and Atchison, T. & S. F. R. Co. v. Bair, 338 N. W. 

2d 338, 348 (Iowa 1983) (same). 5We consider here only questions relating to whether CSX can bring

a claim for discrimination based on the State’s pattern of tax exemptions. We do not consider any issues concerning whether these exemptions actually discriminate against CSX. See infra, at 18–19, and n. 8. 

Alabama has raised two such issues in this Court. First, Alabama 

contends that in deciding CSX’s claim, a federal court must consider 

not only the specific taxes challenged, but also the broader tax scheme. 

Brief for Respondents 58–60. Second, the State argues that the court 

must compare the taxation of CSX not merely to direct competitors

but to other commercial entities as well. Id., at 48, n. 7. Most of the 

dissenting opinion is devoted to supporting the State’s argument on

this second question. But we leave these and all other issues relating 

to whether Alabama actually has discriminated against CSX to the 

trial court on remand to address as and when it wishes. No court in 

this case has previously considered these questions, and the parties’

briefs in this Court have only sketchily addressed them. In addition, 

the parties dispute whether Alabama waived its claim on the second 

issue by initially agreeing that “the comparison class consists of motor 

carriers and water carriers,” App. to Pet. for Cert. 12a (internal quotation marks omitted), and proceeding with the litigation on that basis. 
6 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

An excise tax, like Alabama’s sales and use tax, is “another tax” under subsection (b)(4).6 The 4–R Act does not 

define “tax”; nor does the statute otherwise place any 

matters within, or exclude any matters from, the term’s 

ambit. In these circumstances, we look to the word’s 

ordinary definition, Asgrow Seed Co. v. Winterboer, 513 

U. S. 179, 187 (1995), and we note what taxpayers have 

long since discovered—that the meaning of “tax” is expansive. A State (or other governmental entity) seeking to

raise revenue may choose among multiple forms of taxation on property, income, transactions, or activities.

“[A]nother tax,” as used in subsection (b)(4), is best understood to refer to all of these—more precisely, to encompass 

any form of tax a State might impose, on any asset or 

transaction, except the taxes on property previously addressed in subsections (b)(1)–(3). See Burlington Northern 

R. Co. v. Superior, 932 F. 2d 1185, 1186 (CA7 1991) (Subsection (b)(4) includes “an income tax, a gross-receipts tax,

a use tax, an occupation tax . . . —whatever”). The phrase 

“another tax” is a catch-all. 

In particular, we see no reason to interpret subsection 

(b)(4) as applying only to the gross-receipts taxes—known

as “in lieu” taxes—that some States imposed instead of 

property taxes at the time of the Act’s passage. See Brief 

for Respondents 53–55; Brief for State of Washington 

et al. as Amici Curiae 20–22. The argument in favor of

this construction relies on the House Report concerning 

—————— 

We think this question of waiver is also best considered by the trial 

court. 6As originally enacted, the provision that is now 49 U. S. C.

§11501(b)(4) prohibited the imposition of “any other tax” that discriminates against a railroad. §26c (1976 ed.). The substitution of “another 

tax” occurred when Congress first recodified the Act. In line with 

Congress’s statement that revisions made at that time should not be

construed as having substantive effect, see n. 1, supra, we treat the two 

terms as synonymous. 
Cite as: 562 U. S. ____ (2011) 7 

Opinion of the Court 

the bill, which described subsection (b)(4) as prohibiting 

“the imposition of . . . the so-called ‘in lieu tax.’” H. R. 

Rep. No. 94–725, p. 77 (1975). But the Conference Report

on the final bill abandoned the House Report’s narrowing

language and described the subsection as it was written—

as prohibiting, without limitation, “the imposition of any 

other tax which results in the discriminatory treatment of

any” railroad. S. Conf. Rep. No. 94–595, pp. 165–166

(1976); accord, S. Rep. No. 94–499, p. 65 (1975). And the 

statutory language is the real crux of the matter: Subsection (b)(4) speaks both clearly and broadly, and a legislative report misdescribing the provision cannot succeed in

altering it.7 

Nor do we agree with the Eleventh Circuit’s apparent

view that CSX does not challenge “another tax” because its 

complaint relies on the exemptions the State has given.

See Norfolk Southern, 550 F. 3d, at 1315 (“The language of 

section (b)(4) prohibits a discriminatory ‘tax’ not a discriminatory tax exemption”); Brief for American Trucking

Assns., Inc. as Amicus Curiae 9. What the complaint

protests is Alabama’s imposition of taxes on the fuel CSX 

—————— 

7Alabama also invokes the remedial provision of subsection (c), n. 2, 

supra, to urge that we read §11501 as effectively limited to property or

“in lieu” taxes. According to Alabama, that provision entitles federal

courts to grant relief only when States overvalue railroad property

under subsections (b)(1) and (b)(2): Federal courts, the State avers, 

“have no power to enjoin the granting of tax exemptions as a violation

of subsection (b)(4), or, apparently [to remedy] any violation of subsection (b)(4).” Brief for Respondents 37. But that interpretation of

subsection (c)’s remedial provision cannot be right, because it would 

nullify subsection (b)(4) (and, for that matter, subsection (b)(3) as well).

We understand subsection (c)’s remedial provision neither as limiting 

the broad grant of jurisdiction to federal courts to prevent violations of

subsection (b) nor as otherwise restricting the scope of that subsection. 

The remedial provision simply limits the availability of relief when a

State discriminates in assessing the value of railroad property, as 

proscribed by subsections (b)(1) and (b)(2). That kind of discrimination 

is not at issue here. 
8 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

uses; what the complaint requests is that Alabama cease

to collect those taxes from CSX. App. 23. The exemptions, 

no doubt, play a central role in CSX’s argument: They

demonstrate, in CSX’s view, that the State’s sales and use 

taxes discriminate against railroads. See id., at 22, ¶¶24–

26. But the essential subject of the complaint remains the

taxes Alabama levies on CSX. 

The key question thus becomes whether a tax might be

said to “discriminate” against a railroad under subsection

(b)(4) because the State has granted exemptions from the

tax to other entities (here, the railroad’s competitors). The 

statute does not define “discriminates,” and so we again

look to the ordinary meaning of the word. See supra, at 5. 

“Discrimination” is the “failure to treat all persons equally 

when no reasonable distinction can be found between 

those favored and those not favored.” Black’s Law Dictionary 534 (9th ed. 2009); accord, id., at 420 (5th ed.

1979); see also Webster’s Third New International Dictionary 648 (1976) (“discriminates” means “to make a

difference in treatment or favor on a class or categorical 

basis in disregard of individual merit”). To charge one 

group of taxpayers a 2% rate and another group a 4% 

rate, if the groups are the same in all relevant respects,

is to discriminate against the latter. That discrimination 

continues (indeed, it increases) if the State takes the 

favored group’s rate down to 0%. And that is all an exemption is. See West Lynn Creamery, Inc. v. Healy, 512 

U. S. 186, 210–211 (1994) (SCALIA, J., concurring in judgment) (noting that an “‘exemption’ from . . . a ‘neutral’ tax”

for favored persons “is no different in principle” than “a 

discriminatory tax . . . imposing a higher liability” on 

disfavored persons). To say that such a tax (with such an

exemption) does not “discriminate”—assuming the groups 

are similarly situated and there is no justification for the

difference in treatment—is to adopt a definition of the 

term at odds with its natural meaning. 
Cite as: 562 U. S. ____ (2011) 9 

Opinion of the Court 

In line with this understanding, our decisions have 

repeatedly recognized that tax schemes with exemptions

may be discriminatory. In Davis v. Michigan Dept. of 

Treasury, 489 U. S. 803 (1989), for example, we reviewed a

state income tax provision that exempted retirement

benefits given by the State, but not those paid by the

Federal Government. We held that the tax “discriminate[d]” against federal employees under 4 U. S. C. §111, 

which serves to protect those employees from discriminatory state taxation. Similarly, our dormant Commerce

Clause cases have often held that tax exemptions given to 

local businesses discriminate against interstate actors.

See, e.g., Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 

268–269 (1984) (holding that a state excise tax on alcohol 

“discriminate[d]” against interstate businesses because of

exemptions granted to local producers); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 

588–589 (1997) (invalidating as “discriminatory” a state

property tax that exempted organizations operating for 

the benefit of residents, but not organizations aimed at 

nonresidents). And even our decision in ACF Industries, 

on which the Eleventh Circuit relied in dismissing CSX’s 

suit, made clear that tax exemptions “could be a variant of 

tax discrimination.” 510 U. S., at 343. 

Nor does the 4–R Act limit the prohibited discrimination

to state tax schemes that unjustifiably exempt local actors, 

as opposed to interstate entities. Alabama argues for this

result, claiming that §11501(b) is designed “to protect 

interstate carriers against discrimination vis-à-vis local 

businesses.” Brief for Respondents 29. But the text of 

§11501(b) tells a different story. Consistent with the Act’s 

purpose of restoring the financial stability of railroads (not 

of interstate carriers generally), supra, at 1, each of subsection (b)’s provisions proscribes taxes that specially

burden a rail carrier’s property or otherwise discriminate

against a rail carrier. And not a single provision of the 
10 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

Act (including the references in subsections (b)(1)–(3) to

“commercial and industrial property”) distinguishes between local and non-local taxpayers who receive favorable 

tax treatment. The distinctions drawn in §11501(b) are

not between interstate and local actors, as the State contends, but rather between railroads and other actors, 

whether interstate or local. Accordingly, a state excise tax 

that applies to railroads but exempts their interstate

competitors is subject to challenge under subsection (b)(4) 

as a “tax that discriminates against a rail carrier.”8 

—————— 

8This conclusion does not, as Alabama and the dissent contend, turn 

railroads into “most-favored-taxpayers,” entitled to any exemption (or

other tax break) that a State gives to another entity. See Brief for 

Respondents 23; post, at 9 (opinion of THOMAS, J.). We hold only that

§11501(b)(4) enables a railroad to challenge an excise or other nonproperty tax as discriminatory on the basis of the tax scheme’s exemptions—as the dissent apparently agrees, post, at 1. Whether the 

railroad will prevail—that is, whether it can prove the alleged discrimination—depends on whether the State offers a sufficient justification for declining to provide the exemption at issue to rail carriers. See 

supra, at 8; Brief for United States as Amicus Curiae 25–26; Richmond, 

F. & P. R. Co. v. Department of Taxation, Commonwealth of Va., 762 

F. 2d 375, 380–381, and n. 4 (CA4 1985). So if, to use the dissent’s 

example, a railroad challenged a scheme in which “every person and

business in the State of Alabama paid a $1 annual tax, and one person 

was exempt,” post, at 9, for some reason having nothing to do with 

railroads, we presume the suit would be promptly dismissed. Nothing

in this application of §11501(b)(4) offers a “windfall” to railroads. Ibid. 

The dissent argues in addition that a State should prevail against

any claim of discrimination brought under subsection (b)(4) if it can 

demonstrate that a tax does not “target” or “single out” a railroad, post, 

at 1; that showing, without more, would justify the tax (although the

dissent declines to say just what it means to “target,” post, at 7, n. 3). 

This argument primarily concerns the question whether Alabama’s tax

scheme in fact discriminates under subsection (b)(4)—a question we

have explained is inappropriate to address, see n. 5, supra. We note, 

however, that the dissent’s argument about subsection (b)(4) rests

entirely on the premise that subsections (b)(1)–(3) prohibit only property taxes that “target” or “single out” railroads, see post, at 4; so, the 

dissent would say, a State may impose a 4% property tax on railroads 
Cite as: 562 U. S. ____ (2011) 11 

Opinion of the Court 

III 

As against the plain language of subsection (b)(4), Alabama offers two arguments based on our decision in ACF 

Industries. The first claim, which the Eleventh Circuit 

accepted, rests on the reasoning we adopted in ACF Industries: We concluded there that railroads could not challenge property tax exemptions under subsection (b)(4),

and Alabama asserts that the same analysis applies to excise (and other non-property) tax exemptions. The second 

contention focuses on alleged problems that would emerge

in the application of §11501(b) if the rule of ACF Industries did not govern all tax exemptions. On this view, even 

if ACF Industries’ reasoning is irrelevant to cases involving excise taxes, its holding must extend to those cases to 

prevent inconsistent or anomalous results. We reject each

of these arguments. We stand foursquare behind our 

decision in ACF Industries, but we will not extend it in the 

way the State wishes. 

A 

In ACF Industries, we considered whether a railroad 

could sue a State under subsection (b)(4) for taxing railroad property while exempting certain other commercial 

property. We held that the railroad could not do so. We 

noted that the language of subsection (b)(4), when viewed

in isolation, could be read to allow such a challenge. But 

we reasoned that the structure of §11501 required the 

opposite result. 510 U. S., at 343. The Eleventh Circuit 

—————— 

(assuming some unspecified number of other taxpayers also pay that

rate) while levying only a 2% property tax on railroad competitors. But 

we have never decided, in ACF Industries or any other case, whether

subsections (b)(1)–(3) should be interpreted in this manner. And even 

accepting the dissent’s unexplained premise, a serious question would 

remain about whether to transplant this construction of subsections

(b)(1)–(3) to subsection (b)(4)’s very different terrain, see infra, at 16– 

18. 
12 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

considered ACF Industries “determinative” of the question

here, Norfolk Southern, 550 F. 3d, at 1313, and Alabama 

agrees, Brief for Respondents 18. We think they misread 

that decision. 

We began our analysis in ACF Industries by explaining 

that railroads could not challenge property tax exemptions 

under subsections (b)(1)–(3)—the provisions of §11501 

specifically addressing property taxes. As noted earlier, 

subsections (b)(1)–(3) prohibit a State from imposing

higher property tax rates or assessment ratios on “rail 

transportation property” than on “other commercial and

industrial property.” The statute defines “commercial and 

industrial property” as including only “property . . . subject

to a property tax levy.” §11501(a)(4). We interpreted that

phrase to mean “property that is taxed,” rather than

property that is potentially taxable. 510 U. S., at 341–342. 

As a result, we determined that exempt (i.e., non-taxed)

property fell outside the category of “other commercial and

industrial property” against which the taxation of railroad

property is measured. Ibid. The conclusion followed: 

Subsections (b)(1)–(3) permitted States to impose property 

taxes on railroads while exempting other entities. Ibid. 

And because that was so, we stated, still another conclusion followed: Subsection (b)(4)’s prohibition on discrimination likewise could not encompass property tax

exemptions. Id., at 343. We viewed this holding as a

matter of simple deduction: “It would be illogical to conclude that Congress, having allowed the States to grant 

property tax exemptions in subsections (b)(1)–(3), would 

turn around and nullify its own choice in subsection 

(b)(4).” Ibid. Or stated otherwise: “[R]eading subsection

(b)(4) to prohibit what” other parts of the statute were

“designed to allow,” would “subvert the statutory plan” 

and “contravene the ‘elementary canon of construction

that a statute should be interpreted so as not to render

one part inoperative.’” Id., at 340. The structure of 
Cite as: 562 U. S. ____ (2011) 13 

Opinion of the Court 

§11501 thus compelled our conclusion that property tax 

exemptions—even if “a variant of tax discrimination,” id., 

at 343—fell outside subsection (b)(4)’s reach. 

But this structural analysis—the core of ACF Industries—has no bearing on the question here. Subsections 

(b)(1)–(3) specifically address—and allow—property tax 

exemptions. But neither those subsections nor any other 

provision of the 4–R Act speaks to non-property tax exemptions like those at issue in this case. Congress has

expressed no intent to “allo[w] the States to grant” these

exemptions. Ibid. Reading subsection (b)(4) as written— 

to encompass non-property tax exemptions—therefore

poses no danger of “nullify[ing]” a congressional policy 

choice or otherwise “subvert[ing] the statutory plan.” Id., 

at 340, 343. To the contrary: Giving subsection (b)(4) 

something other than its ordinary meaning, absent any 

structural reason to do so, would itself contravene the 

expressed will of Congress.

Implicitly acknowledging that ACF Industries’ central 

theory is irrelevant here, Alabama focuses on what that

decision called “[o]ther considerations reinforc[ing]” its 

structural analysis. Id., at 343. Most notably, Alabama

underscores the following sentence from ACF Industries: 

“Given the prevalence of property tax exemptions when 

Congress enacted the 4–R Act, [§11501’s] silence on the 

subject—in light of the explicit prohibition of tax rate and 

assessment ratio discrimination—reflects a determination 

to permit the States to leave their exemptions in place.” 

Id., at 344. Alabama asserts that this statement “holds 

just as true” for sales and use taxes. Brief for Respondents 41. 

That claim rings hollow. To be sure, ACF Industries 

noted that Congress had declined to speak “with any 

degree of particularity to” the permissibility of property 

tax exemptions, even though States often granted them. 

510 U. S., at 343. But we thought that fact relevant only 
14 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

because Congress had spoken with particularity in proscribing other forms of discriminatory property taxes. The 

very sentence Alabama highlights makes our reasoning 

clear: Congress’s silence as to the practice of granting

property tax exemptions reflected its acquiescence in that

practice “in light of the explicit prohibition [in subsections 

(b)(1)–(3)] of [property] tax rate and assessment ratio 

discrimination.” Id., at 344 (emphasis added). If that 

explicit prohibition had not existed—if §11501(b) had 

consisted only of subsection (b)(4)’s broad ban on tax 

discrimination—we could not have gleaned what we did 

from congressional silence. After all, the very purpose of a 

catch-all provision like subsection (b)(4) is to avoid the

necessity of listing each matter (here, each kind of tax 

discrimination) falling within it. And with respect to nonproperty taxes (like Alabama’s sales and use taxes), subsection (b)(4) is all there is. So here again, our analysis in 

ACF Industries does not apply because it rested on subsections (b)(1)–(3)—that is, on the highly reticulated scheme 

in the 4–R Act relating solely to property taxes. 

Alabama also emphasizes our statement in ACF Industries that “‘[p]rinciples of federalism’” supported our holding, Brief for Respondents 41–43 (quoting 510 U. S., at 

345), but this final effort to borrow from that decision’s 

analysis similarly fails. We indeed recognized in ACF 

Industries that the 4–R Act limits the traditional taxing

power of the States. Because that is so, we expressed

“hesitan[ce] to extend the statute beyond its evident 

scope.” 510 U. S., at 345. But here, for all the reasons 

already noted, we are not “extend[ing] the statute”; we are 

merely giving effect to its clear meaning. To reiterate: The 

4–R Act distinguishes between property taxes and other 

taxes. Congress expressed its intent to insulate property

tax exemptions from challenge; against that background, 

ACF Industries stated that permitting such suits would 

intrude on the States’ rightful authority. By contrast, 
Cite as: 562 U. S. ____ (2011) 15 

Opinion of the Court 

Congress drafted §11501 to enable railroads to contest all 

other tax exemptions; and when Congress speaks in such

preemptive terms, its decision must govern. Principles of

federalism cannot narrow §11501’s clear scope. See, e.g., 

CSX Transp., Inc. v. Georgia State Bd. of Equalization, 

552 U. S. 9, 20 (2007) (rejecting the idea that federalism 

principles preclude challenges to state valuation methodologies when §11501 “clearly authorized” such actions).

Nothing in ACF Industries suggested otherwise. 

B 

Alabama additionally makes a subtler argument involving ACF Industries. Given that decision, Alabama contends, a ruling in CSX’s favor here would create troubling

inconsistencies. Alabama claims that subsection (b)(4)’s

singular prohibition on “discriminat[ion]” would then 

mean one thing for property taxes (according to ACF 

Industries) and another for non-property taxes, even

though nothing in the statute supports “morphing definitions.” Brief for Respondents 32. And still worse than the 

difference in meaning would be the difference in result: 

A ruling for CSX, Alabama argues, would give railroads

more protection against non-property taxes than against 

property taxes, even though no good reason exists for this 

distinction. 

Alabama’s one-word-two-meanings argument collapses 

because it again rests on a misunderstanding of ACF 

Industries. That decision did not define “discriminat[e]” or

say that a tax exemption could not fall within that term. 

Quite to the contrary: As noted earlier, ACF Industries 

frankly acknowledged that tax exemptions, including 

property tax exemptions, “could be a variant of tax discrimination.” 510 U. S., at 343; supra, at 9. We held that 

property tax exemptions were immune from challenge

under subsection (b)(4) for structural, rather than linguistic, reasons. Even assuming these exemptions “discrimi­
16 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

nate[d],” they did so in a way that the specific provisions of 

§§11501(b)(1)–(3) allow, and accordingly §11501(b)(4)’s 

prohibition could not include them. That reasoning, once

more, does not apply here, because subsections (b)(1)–(3) 

do not permit—indeed, in no way address—non-property 

tax exemptions. We therefore do not adopt a new definition of “discriminate” in this case; in the context of the 4–R 

Act, that word has, and has always had, just one meaning. 

What remains is Alabama’s complaint that a ruling in

CSX’s favor, when combined with our decision in ACF 

Industries, will result in divergent treatment of property 

and non-property taxes. At times, Alabama dresses up

this objection in Latin: It contends that the canon of ejusdem generis, which “limits general terms [that] follow

specific ones to matters similar to those specified,” Gooch 

v. United States, 297 U. S. 124, 128 (1936), has a role to

play in interpreting §11501(b). More particularly, Alabama contends that this canon supports reading into 

§11501(b)(4) every limitation contained in §§11501(b)(1)–

(3), including the exclusion of tax exemptions from the 

class of state actions subject to challenge. See Brief for 

Respondents 26–27. That interpretive move, Alabama

rightly notes, would ensure equal treatment of property 

tax and non-property tax exemptions. 

 But we think ejusdem generis is not relevant here. As 

an initial matter, subsection (b)(4), “[a]lthough something 

of a catchall, . . . is not a general or collective term following a list of specific items to which a particular statutory 

command is applicable (e.g., ‘fishing rods, nets, hooks,

bobbers, sinkers, and other equipment’).” United States v. 

Aguilar, 515 U. S. 593, 615 (1995) (SCALIA, J., concurring 

in part and dissenting in part). Rather, that subsection is 

“one of . . . several distinct and independent prohibitions.” 

Ibid. Related to this structural point is a functional one.

We typically use ejusdem generis to ensure that a general

word will not render specific words meaningless. E.g., 
Cite as: 562 U. S. ____ (2011) 17 

Opinion of the Court 

Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 114–115 

(2001); see 2A N. Singer, Sutherland on Statutes and 

Statutory Construction §47:17 (7th ed. 2007). But that 

concern is absent here. Reading subsection (b)(4) to cover 

non-property tax exemptions will not deprive subsections 

(b)(1)–(3) of effect, because those subsections are addressed only to property taxes. A canon meaning literally

“of the same kind” has no application to provisions directed toward dissimilar subject matter. 

The better version of Alabama’s claim reads entirely in

English; it is simply that distinguishing between property 

tax exemptions and other tax exemptions makes not a

whit of sense. We are not much inclined to disagree. 

Neither CSX nor the United States as amicus curiae has 

offered a satisfying reason for why Congress drew this

line—why in §§11501(b)(1)–(3) it barred challenges based 

on property tax exemptions, but then turned around in

§11501(b)(4) to allow challenges based on, say, excise tax 

exemptions. See Tr. of Oral Arg. 4–5, 24–25. CSX, for 

example, has not presented any evidence that different tax 

exemptions posed different levels of threat to railroads’ 

financial stability. So even if Congress had a good reason 

for distinguishing between property and non-property tax 

exemptions, we acknowledge that it eludes us.

But this admission does not take us far in Alabama’s 

direction. Even if the 4–R Act were ambiguous, we doubt

we would interpret subsection (b)(4) to replicate each facet

of subsections (b)(1)–(3). Treating property tax exemptions and other tax exemptions equivalently might make

sense, as Alabama argues. But so too might allowing 

railroads to challenge all taxes (property or non-property)

that contain exemptions. After all, as we noted earlier, 

tax exemptions are an obvious form of tax discrimination. 

See supra, at 8–9. It is hardly self-evident why Congress

would prohibit a State from charging a railroad a 4% tax 

and a competitor a 2% tax, but allow the State to charge 
18 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

Opinion of the Court 

the railroad a 4% tax and the competitor nothing. The 

latter situation would frustrate the purposes of the Act

even more than the former. In ACF Industries, we accepted that anomaly because the terms and structure of 

the Act demanded that we do so. But we could say no

more in favor of the result than that it was “not so bizarre 

that Congress could not have intended it.” 510 U. S., at 

347 (internal quotation marks omitted). That was not a 

glowing recommendation, and we see no reason today to 

view the matter differently. Accordingly, even assuming

that statutory ambiguity permitted us to do so, we would 

hesitate to extend the distinction between tax exemptions

and differential tax rates in order to avoid a distinction 

between property and non-property taxes. That would 

seem a poor trade of statutory anomalies. 

In any event, and more importantly, the choice is not

ours to make. Congress wrote the statute it wrote, and 

that statute draws a sharp line between property taxes 

and other taxes. Congress drafted §§11501(b)(1)–(3) to

exclude tax exemptions from the sphere of prohibited 

property tax discrimination. But it drafted §11501(b)(4) 

more broadly, without any of the prior subsections’ limitations, to proscribe other “tax[es] that discriminat[e],” 

including through the use of exemptions. That congressional election settles this case. Alabama’s preference for 

symmetry cannot trump an asymmetrical statute. And its 

preference for the greatest possible latitude to levy taxes

cannot trump Congress’s decision to restrict discriminatory taxation of rail carriers. 

IV 

Our decision in this case is limited. We hold that CSX 

may challenge Alabama’s sales and use taxes as “tax[es] 

that discriminat[e] against . . . rail carrier[s]” under

§11501(b)(4). We do not address whether CSX should 

prevail in that challenge—whether, that is, Alabama’s 
Cite as: 562 U. S. ____ (2011) 19 

Opinion of the Court 

taxes in fact discriminate against railroads by exempting

interstate motor and water carriers. Alabama argues, in

support of barring CSX’s challenge at the outset, that this

inquiry into discrimination may pose difficulties. Brief for 

Respondents 35–37. We cannot deny that assertion, but 

neither can we respond to it by precluding CSX’s claim. 

Discrimination cases sometimes do raise knotty questions

about whether and when dissimilar treatment is adequately justified. In the context of the 4–R Act, those hard 

calls can arise when States charge different tax rates to 

different entities in a practice the statute specifically

subjects to challenge. See §11501(b)(3). So too, difficult 

issues can emerge when, as here, States provide certain 

entities with tax exemptions. In either case, Congress has 

directed the federal courts to review a railroad’s challenge; 

and in either case, we would flout the congressional command were we to declare the matter beyond us.

For the reasons stated, we reverse the judgment of the 

Eleventh Circuit and remand the case for further proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 562 U. S. ____ (2011) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 09–520 

CSX TRANSPORTATION, INC., PETITIONER v.

ALABAMA DEPARTMENT OF REVENUE 

ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[February 22, 2011] 

JUSTICE THOMAS, with whom JUSTICE GINSBURG joins,

dissenting. 

I agree with the Court that Alabama’s sales and use 

taxes are “another tax” within the meaning of 49 U. S. C.

§11501(b)(4) and that a scheme of tax exemptions is capable of making a tax discriminatory. Ante, at 6–8. As a 

general matter, therefore, I agree that Alabama’s sales

and use taxes could potentially violate subsection (b)(4),

and would do so if their exemptions “discriminate[d] 

against a rail carrier.” §11501(b)(4). The majority’s holding stops there, see ante, at 10, n. 8, but I would go on.

I would hold that, to violate §11501(b)(4), a tax exemption scheme must target or single out railroads by comparison to general commercial and industrial taxpayers. 

Although parts of the majority’s discussion appear to 

question this standard, see ante, at 8–11, the limited 

holding does not foreclose it. Because CSX cannot prove 

facts that would satisfy that standard in this case, I would

affirm. 

I 

In my view, “another tax that discriminates against a

rail carrier” in §11501(b)(4) means a tax—or tax exemption scheme—that targets or singles out railroads as 
2 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

THOMAS, J., dissenting

compared to other commercial and industrial taxpayers. 

That reading settles the ambiguity in the word “discriminates” by reference to the rest of the statute and gives

subsection (b)(4) a reach consistent with the problem the 

statute addressed. 

A 

“Discriminates,” standing alone, is a flexible word. 

Compare, e.g., Clackamas Gastroenterology Associates, 

P. C. v. Wells, 538 U. S. 440, 446 (2003) (“[T]he statutory 

purpose of [the Americans with Disabilities Act of 1990 is] 

ridding the Nation of the evil of discrimination”), with 

Davis v. Bandemer, 478 U. S. 109, 132 (1986) (plurality 

opinion) (“[U]nconstitutional discrimination occurs only 

when the electoral system is arranged in a manner that 

will consistently degrade a voter’s or a group of voters’ 

influence”); and United Haulers Assn., Inc. v. OneidaHerkimer Solid Waste Management Authority, 550 U. S. 

330, 338 (2007) (“In this context, ‘discrimination’ simply 

means differential treatment of in-state and out-of-state 

economic interests that benefits the former and burdens 

the latter” (some internal quotation marks omitted)). 

Even though “discriminate” has a general legal meaning 

relating to differential treatment, its precise contours still

depend on its context. See Guardians Assn. v. Civil Serv. 

Comm’n of New York City, 463 U. S. 582, 592 (1983) (opinion of White, J.) (“The language of Title VI on its face is

ambiguous; the word ‘discrimination’ is inherently so”); 

Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 284 (1978) 

(opinion of Powell, J.) (“The concept of ‘discrimination’ . . .

is susceptible of varying interpretations”). Here, the word 

“discriminates” in subsection (b)(4) is ambiguous as to the

appropriate comparison class. Burlington Northern R. Co. 

v. Commissioner of Revenue, 509 N. W. 2d 551, 553 (Minn. 

1993) (“To be discriminatory, a tax must be discriminatory 

as compared to someone else”). It is also ambiguous as to 
Cite as: 562 U. S. ____ (2011) 3 

THOMAS, J., dissenting 

what type of difference is required to violate the statute— 

e.g., any distinction, singling out, or something in between. 

Therefore, I would use the context to resolve the meaning of the word as it is used in subsection (b)(4). See Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997) (statutory 

interpretation focuses on “the language itself, the specific 

context in which that language is used, and the broader 

context of the statute as a whole”). We did precisely that

in Department of Revenue of Ore. v. ACF Industries, Inc., 

510 U. S. 332 (1994), where we similarly faced a question 

about the meaning of subsection (b)(4). In that case, our 

structural analysis of §11501(b) was “central to the interpretation of subsection (b)(4).” Id., at 340. 

1 

The structure of §11501(b) is straightforward. Subsections (b)(1) through (3) instruct that States may not assess 

railroad property at “a higher ratio to the true market 

value . . . than . . . other commercial and industrial property,” 49 U. S. C. §11501(b)(1), collect taxes based on those 

inflated assessments, §11501(b)(2), or set property tax 

rates for railroad property higher than that “applicable to

commercial and industrial property” in the same assessment jurisdiction, §11501(b)(3). Subsection (b)(4) then 

forbids “[i]mpos[ing] another tax that discriminates 

against a rail carrier.”

I would look to subsections (b)(1) through (3) to determine the meaning of “discriminates” in (b)(4). As many

lower courts have correctly recognized, subsection (b)(4) 

is a residual clause, naturally appurtenant to subsections

(b)(1) through (3).1 Moreover, the phrase “another tax that

discriminates” in subsection (b)(4) suggests that the previ-

—————— 

1See, e.g., Kansas City Southern R. Co. v. McNamara, 817 F. 2d 368, 

373–374 (CA5 1987); Burlington Northern R. Co. v. Superior, 932 F. 2d 

1185, 1186 (CA7 1991); Alabama Great Southern R. Co. v. Eagerton, 

663 F. 2d 1036, 1041 (CA11 1981). 
4 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

THOMAS, J., dissenting

ous subsections all describe taxes that “discriminate” in a 

manner similar to that forbidden by subsection (b)(4). See 

Washington State Dept. of Social and Health Servs. v. 

Guardianship Estate of Keffeler, 537 U. S. 371, 384 (2003) 

(reading the phrase “other legal process” restrictively

because “where general words follow specific words in a

statutory enumeration, the general words are construed to 

embrace only objects similar in nature to those objects

enumerated by the preceding specific words” (internal 

quotation marks and brackets omitted)). 

Subsections (b)(1) through (3) each prohibit particular

types of state taxes that target or single out railroad property for less favorable tax treatment than other commercial and industrial property. First, the “discriminat[ion]”

addressed in subsections (b)(1) through (3) can only be

described as taxes that target or single out railroad property. Those subsections specifically concern taxes that

affect railroad property differently from the way they

affect a larger class of comparative taxpayers’ property. 

See §§11501(b)(1)–(3); cf. ante, at 9 (“[E]ach of subsection 

(b)’s provisions proscribes taxes that specially burden a

rail carrier’s property or otherwise discriminate against a

rail carrier” (emphasis deleted)). Second, each subsection 

refers to the same comparison class—other “commercial 

and industrial property.” §§11501(b)(1)–(3). 

I think it follows that, under subsection (b)(4), a tax 

“discriminates against a rail carrier” if it similarly targets

railroads for tax treatment less favorable than other commercial and industrial taxpayers. As we found in ACF 

Industries, the structure of the statute provides a light by

which to navigate the meaning of subsection (b)(4). 

2 

The background of §11501(b) also supports this understanding of subsection (b)(4). In previous cases, we have

identified the problem that made subsection (b) necessary. 
Cite as: 562 U. S. ____ (2011) 5 

THOMAS, J., dissenting 

At the time the Railroad Revitalization and Regulatory

Reform Act (4–R Act) was enacted, it was clear that “railroads ‘“are easy prey for State and local tax assessors” in

that they are “nonvoting, often nonresident, targets for 

local taxation,” who cannot easily remove themselves from 

the locality.’” ACF Industries, supra, at 336 (quoting 

Western Air Lines, Inc. v. Board of Equalization of S. D., 

480 U. S. 123, 131 (1987) (quoting, in turn, S. Rep. No. 91–

630, p. 3 (1969))). The “temptation to excessively tax 

nonvoting, nonresident businesses . . . made federal legislation in this area necessary.” Western Air Lines, supra, at 

131; see also Burlington Northern R. Co. v. Oklahoma Tax 

Comm’n, 481 U. S. 454, 457 (1987) (noting that “[a]fter an

extended period of congressional investigation, Congress

concluded that ‘railroads are over-taxed by at least $50 

million each year’” (quoting H. R. Rep. No. 94–725, p. 78 

(1975))).

In other words, §11501(b) responded primarily to what

its text describes—property taxes that soaked the railroads. The obvious rationale supporting subsections (b)(1)

through (3) is that the “way to prevent tax discrimination 

against the railroads is to tie their tax fate to the fate of a 

large and local group of taxpayers.” Kansas City Southern 

R. Co. v. McNamara, 817 F. 2d 368, 375 (CA5 1987); see 

also Atchison, T. & S. F. R. Co. v. Arizona, 78 F. 3d 438, 

441 (CA9 1996). In this way, subsections (b)(1) through 

(3) establish a political check on the taxation of railroads. States cannot impose excessive property taxes on

the nonvoting, nonresident railroads without imposing

the same taxes more generally on voting, resident local

businesses. 

Absent any indication that subsection (b)(4), as a residual clause, has any different aim, it is reasonable to conclude that it shares the same one as subsections (b)(1) 

through (3). See, e.g., Kansas City Southern R. Co., supra,

at 373–374 (Congress included subsection (b)(4) “to ensure 
6 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

THOMAS, J., dissenting

that states did not shift to new forms of tax discrimination 

outside the letter of the first three subsections”); Burlington Northern R. Co. v. Superior, 932 F. 2d 1185, 1186 (CA7

1991) (“Subsection (b)(4) is . . . designed to prevent the 

state from accomplishing the forbidden end of discriminating against railroads by substituting another type of tax”).

Subsection (b)(4) should be understood to tackle the issue

of systemic railroad over-taxation the same way that the

other subsections do—by linking the taxation of railroads

to the taxation of businesses with local political influence. 

Thus, a “tax that discriminates against a rail carrier” is a 

tax that targets or singles out rail carriers compared to

commercial and industrial taxpayers. 

B 

Under this test, CSX’s complaint was properly dismissed. CSX has not alleged that Alabama’s sales and use

taxes target railroads compared to general commercial

and industrial taxpayers. See ACF Industries, 510 U. S., 

at 346–347 (leaving open a case in which “railroads—

either alone or as part of some isolated and targeted

group—are the only commercial entities” subject to a tax); 

Norfolk Southern R. Co. v. Alabama Dept. of Revenue, 550 

F. 3d 1306, 1316 (CA11 2008). CSX alleges that it paid a

tax on its fuel that certain rail competitors did not have to 

pay. But it concedes, as it must, that the sales and use 

taxes are “generally applicable.” Pet. for Cert. i; see Ala. 

Code §40–23–2(1) (2010 Cum. Supp.) (imposing a four

percent sales tax on “every person, firm, or corporation . . . 

selling at retail any tangible personal property whatsoever”); §40–23–61(a) (2003); see also Norfolk Southern R. 

Co., supra, at 1316; Tr. of Oral Arg. 36. 

Discrete exemptions for certain railroad competitors—

namely, fuel exemptions for interstate motor carriers and

interstate ships and barges—do not make a generally 

applicable tax “discriminat[ory]” under subsection (b)(4). 
Cite as: 562 U. S. ____ (2011) 7 

THOMAS, J., dissenting 

Widespread exemptions could theoretically cause a facially

general tax to target railroads, but the limited exemptions

at issue here do not suggest that, and CSX has not argued 

it.2 Accordingly, CSX has not stated a cognizable claim for 

discrimination under §11501(b)(4). 

II 

The Court does not settle the ambiguity in the word

“discriminates” in subsection (b)(4)—leaving open both the

appropriate comparison class and the type of differential 

treatment required to constitute discrimination.3 The 

majority “hold[s] only that §11501(b)(4) enables a railroad

to challenge an excise or other non-property tax as discriminatory on the basis of the tax scheme’s exemptions.” 

Ante, at 10, n. 8. Thus, when the majority says that “a

state excise tax that applies to railroads but exempts their

interstate competitors is subject to challenge under subsection (b)(4),” ante, at 10, it must mean only that a tax 

exemption scheme could potentially violate subsection

(b)(4).

As I understand it, the majority does not decide whether 

—————— 

2Although the majority rightly observes that whether a given tax is

discriminatory may often be a difficult question, see ante, at 19, this is 

not a close case. I therefore need not define the exact boundaries of 

what constitutes targeting or singling out. See, e.g., Norfolk Southern 

R. Co. v. Alabama Dept. of Revenue, 550 F. 3d 1306, 1316, n. 16 (CA11

2008) (listing examples of courts finding railroads targeted by various 

state tax schemes). 3The majority declines to reach the comparison class issue. But the 

question presented was: “Whether a State’s exemptions of rail carrier 

competitors, but not rail carriers, from generally applicable sales and 

use taxes on fuel subject the taxes to challenge under 49 U. S. C. 

§11501(b)(4) as ‘another tax that discriminates against a rail carrier.’ ” 

The question presented thus asks whether CSX can challenge a “generally applicable” tax based on exemptions granted to rail competitors—a

straightforward comparison class issue. The lower courts have split

over the proper scope of the comparison class, and the issue was presented in this case. I would decide it. 
8 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

THOMAS, J., dissenting

CSX has stated a claim even in this case but instead 

leaves that issue for remand. Accordingly, States remain 

free to argue—and lower courts to hold—that complaints

like CSX’s should be dismissed for failing to state a “discriminat[ion]” claim under §11501(b)(4) when they do not 

allege that railroads are targeted or singled out compared

to commercial and industrial taxpayers generally. 

Nonetheless, despite the majority’s assertion that it is

“inappropriate” to address whether Alabama’s tax scheme 

actually discriminates within the meaning of §11501(b)(4), 

ante, at 10, n. 8, parts of its opinion suggest an answer to 

that question that I believe is incorrect. Relying on the 

second definition in Black’s Law Dictionary, the majority

defines “discriminates” as “‘failure to treat all persons

equally when no reasonable distinction can be found between those favored and those not favored.’” Ante, at 8. 

This definition of “discriminate,” combined with the majority’s insistence that the “distinctions drawn in §11501(b)

are . . . between railroads and other actors, whether interstate or local,” suggests that the comparison class could be 

anyone.4 Ante, at 10. The majority ultimately implies that

“another tax that discriminates against a rail carrier” is

any tax that draws a distinction between a rail carrier and

anyone else without sufficient justification. See ante, at 

10, n. 8 (“Whether the railroad will prevail . . . depends on 

whether the State offers a sufficient justification for de-

—————— 

4A comparison class of “anyone” is broader than either of the sides in

the lower courts’ split on this issue. Courts usually disagree over

whether to use commercial and industrial taxpayers or railroad competitors as the comparison class. Compare Burlington Northern, S. F. 

R. Co. v. Lohman, 193 F. 3d 984, 985–986 (CA8 1999) (applying a

comparison class of rail competitors); Burlington Northern R. Co. v. 

Commissioner of Revenue, 509 N. W. 2d 551, 553 (Minn. 1993) (same), 

with Kansas City Southern R. Co., 817 F. 2d, at 375 (using commercial

and industrial taxpayers as the comparison class); Atchison, T. & S. F. 

R. Co. v. Arizona, 78 F. 3d 438, 441 (CA9 1996) (same). 
Cite as: 562 U. S. ____ (2011) 9 

THOMAS, J., dissenting 

clining to provide the exemption at issue to rail carriers”). 

I do not read subsection (b)(4) so independently of (b)(1)

through (3). Perhaps, as the majority asserts, subsection 

(b)(4) is not an ideal candidate for ejusdem generis. Ante, 

at 16–17. But given the ambiguity of subsection (b)(4),

(b)(1) through (3) are the best guides for understanding its 

proper scope—something we recognized in ACF Industries. 

510 U. S., at 343. It is more reasonable to discern the 

meaning of “discriminates” in subsection (b)(4) using the 

preceding subsections than to pluck from the dictionary a

definition for such a context-dependent term. 

Detaching subsection (b)(4) from the rest of the section 

would expand its meaning well beyond the scope of the

problem that necessitated §11501(b). Instead of simply

eliminating the particular vulnerability of railroads by 

tying their tax fate to that of general commercial and

industrial taxpayers, railroads would receive a surprising

windfall: most-favored taxpayer status. This would convert subsection (b)(4) from a shield into a sword.

The implication of the majority opinion is that if every 

person and business in the State of Alabama paid a $1 

annual tax, and one person was exempt, CSX could sue 

under subsection (b)(4) and require the State to either

exempt CSX also or “offe[r] a sufficient justification” for

the distinction. See ante, at 10, n. 8. Although the majority denies that this would provide railroads most-favoredtaxpayer status, see ibid., it acknowledges that States

would have to justify any tax distinction that railroads

argue may disfavor them. 

The only bulwark against requiring States to give railroads every tax exemption that anyone else gets would be

open-ended judicial determinations of what is “sufficient 

justification” for such distinctions. Ibid. Unsurprisingly,

the statute provides no guidance for what “sufficient justification” might mean, but neither does the majority. 

There are all sorts of reasons that might lead a State to 
10 CSX TRANSPORTATION, INC. v. ALABAMA DEPT. OF 

 REVENUE 

THOMAS, J., dissenting

distinguish between railroads and others for tax purposes.

See Tr. of Oral Arg. 58. For instance, in this case, Alabama points out that motor carriers and interstate water

carriers pay a separate—and frequently higher—tax on

fuel from which railroads are effectively exempt. Brief for 

Respondents 12–16, 59–60. That might be a “sufficient

justification” for their exemptions from the taxes here, but 

the majority expressly disclaims reaching that question. 

Ante, at 5, n. 5.5 Of course, logically extending the meaning of “discriminates” from subsections (b)(1) through (3)

would avoid this problem, as there is no need for “justification” at all: A tax either targets railroads by comparison to 

commercial and industrial taxpayers or it does not. 

* * * 

I disagree with the meaning of “discriminat[e]” in subsection (b)(4) that the majority seems to imply. The rest of 

§11501(b) provides a logical and coherent way to determine what subsection (b)(4) means, and we have used that

methodology before. See ACF Industries, 510 U. S., at 

340. The best way to read subsection (b)(4) is as prohibiting taxes that target or single out railroads as compared to

general commercial and industrial taxpayers. That is the 

test I would establish, and I do not understand the majority to foreclose the lower courts from utilizing it. Under 

that test, CSX’s challenge to Alabama’s sales and use 

taxes was properly dismissed. Accordingly, I respectfully 

dissent. 

—————— 

5The majority appears to consider “sufficient justification” as a potential defense for the State, see ante, at 10, n. 8, but since it derives from 

the meaning of “discriminates,” a lack of sufficient justification would 

seem to be a part of what a railroad would have to plead in order to

state a claim for a violation of §11501(b)(4).