PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORFOLK SOUTHERN RAILWAY 

COMPANY,

Plaintiff-Appellee,

v.

CITY OF ALEXANDRIA, a municipal

corporation organized under the

laws of the Commonwealth of

Virginia; RICHARD BAIER, in his  No. 09-1566 official capacity as Director of

Transportation and Environmental

Services for the City of

Alexandria,

Defendants-Appellants,

v.

RSI LEASING, INCORPORATED,

Third Party Defendant-Appellee. 
NORFOLK SOUTHERN RAILWAY 

COMPANY,

Plaintiff-Appellant,

v.

CITY OF ALEXANDRIA, a municipal

corporation organized under the

laws of the Commonwealth of

Virginia; RICHARD BAIER, in his  No. 09-1608 official capacity as Director of

Transportation and Environmental

Services for the City of

Alexandria,

Defendants-Appellees,

v.

RSI LEASING, INCORPORATED,

Third Party Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(1:08-cv-00618-JCC-TRJ)

Argued: March 24, 2010

Decided: June 16, 2010

Before KING and GREGORY, Circuit Judges, and

Joseph R. GOODWIN, Chief United States District Judge

for the Southern District of West Virginia,

sitting by designation.

2 NORFOLK SOUTHERN v. ALEXANDRIA
Affirmed in part, dismissed in part, and vacated in part by

published opinion. Judge King wrote the opinion, in which

Judge Gregory joined. Judge Goodwin wrote an opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: William Eric Pilsk, KAPLAN KIRSCH &

ROCKWELL, LLP, Washington, D.C., for Appellants/CrossAppellees. Gary Alvin Bryant, WILLCOX & SAVAGE, PC,

Norfolk, Virginia, for Appellees/Cross-Appellants. ON

BRIEF: Charles A. Spitulnik, Lisa Reynolds, KAPLAN

KIRSCH & ROCKWELL, LLP, Washington, D.C.; James L.

Banks, Christopher P. Spera, OFFICE OF THE CITY

ATTORNEY, Alexandria, Virginia, for Appellants/CrossAppellees.

OPINION

KING, Circuit Judge:

These appeals concern whether three separate provisions of

federal law serve to preempt an ordinance enacted by the City

of Alexandria, Virginia (the "City"). The City’s ordinance has

been applied to Norfolk Southern Railway Company

("Norfolk Southern") through a series of haul permits. In its

appeal, the City maintains that the district court erred in ruling

that two federal statutes — the Interstate Commerce Commission Termination Act (the "ICCTA") and the Hazardous

Materials Transportation Act (the "HMTA") — preempt the

ordinance and haul permits. See Norfolk S. Ry. Co. v. City of

Alexandria, No. 1:08-cv-618 (E.D. Va. April 15, 2009) (the

"District Court Opinion").1 By cross-appeal, Norfolk Southern

1The District Court Opinion is found at J.A. 97-136. (Citations herein

to "J.A. __" refer to the Joint Appendix filed by the parties in this appeal.)

NORFOLK SOUTHERN v. ALEXANDRIA 3
challenges the court’s conclusion that a third statute, the Federal Rail Safety Act (the "FRSA"), does not also preempt the

ordinance and permits. 

As explained below, we affirm the district court’s decision

on preemption with respect to the ICCTA. Because that disposition renders moot the alternative bases for federal preemption, we dismiss the HMTA aspect of the City’s appeal, as

well as the cross-appeal. Finally, we vacate the court’s judgment on the HMTA and FRSA preemption claims.

I.

A.

In April 2008, Norfolk Southern began operating an ethanol transloading facility (the "Facility") in Alexandria, Virginia. The Facility enables Norfolk Southern to transfer bulk

shipments of ethanol from its railcars onto surface tank trucks

that are operated by third parties. Shippers contract with Norfolk Southern to have ethanol shipped to the Facility by rail,

and Norfolk Southern includes the expense of transloading in

its overall price for transporting ethanol. Norfolk Southern’s

agent, RSI Leasing, Incorporated ("RSI"), performs the transloading operations at the Facility.2

 All further arrangements

regarding the transportation of ethanol from the Facility by

truck, however, are made between the ethanol shippers and

receivers and the private trucking companies. The tank trucks

loaded at the Facility transport ethanol via the City’s streets

to nearby interstate highways and en route to their ultimate

destinations. 

The Facility is located in the City near two residential

neighborhoods, an elementary school, the Van Dorn Metro

Station and associated commuter parking lot, and other popu2RSI is also a party to the cross-appeal. For ease of reference, we primarily refer to the two cross-appellants simply as "Norfolk Southern." 

4 NORFOLK SOUTHERN v. ALEXANDRIA
lated areas. Because ethanol is highly flammable and volatile,

the City took at least two steps in June 2008 to alleviate perceived safety concerns. First, the City petitioned the Surface

Transportation Board (the "STB"), an independent federal

agency, for a declaration regarding the City’s authority to regulate the Facility. Second, pursuant to an ordinance prohibiting the hauling of certain materials on its streets, the City

unilaterally issued a thirty-day haul permit to Norfolk Southern (the "Permit").3

 Norfolk Southern declined to abide by any

aspect of the Permit, taking the position that it was facially

inapplicable to the Facility, and, in any event, was preempted

by federal law.

3The Permit imposed several conditions, including limiting what could

be hauled, specifying a hauling route through the City, and restricting the

days and times for such hauling. More specifically, the Permit provided:

1) No dirt, mud or debris shall be tracked/spilled onto the public right-of-way. 

2) A copy of this permit must be provided each driver. Failure

to follow routing will result in revocation of this permit. No

entering the city before 7:00 a.m. No jake brakes or engine

braking within the city limits. Driver shall obey all traffic

signs and markings. 

3) Hauling route is from the Alexandria facility to Metro Road,

Metro Road to Eisenhower Avenue, west on Eisenhower

Avenue to Van Dorn Street, south on Van Dorn Street and

out of the city limits. 

Hauling is permitted Monday through Friday, 7:00 a.m. to

7:00 p.m. only. 

Hauling is limited to a maximum of 20 trucks per day.

4) This permit is being issued despite city concerns and objections to Norfolk Southern and its contractors relating to the

appropriateness of ethanol transloading at this location. 

5) This permit will be revoked should this operation be halted

by any governing authority. 

J.A. 198. During the relevant period, the City sought to reissue the Permit

every thirty days. For the sake of simplicity, we refer to the various permits in the singular, as the "Permit," despite the fact that such permits

were recurrently issued. 

NORFOLK SOUTHERN v. ALEXANDRIA 5
In response, on June 14, 2008, the City amended its original ordinance to explicitly govern the transportation within

the City of "bulk materials," including ethanol. City Code of

Alexandria § 5-2-27(a) (as amended, the "Ordinance").4 A

violation of the Ordinance constitutes a misdemeanor criminal

offense. Pursuant to the Ordinance, the City, on July 3, 2008,

unilaterally issued a second thirty-day Permit to Norfolk

Southern. This Permit, and those issued thereafter, contained

the same restrictions as the original Permit. Norfolk Southern,

however, adhered to its position that federal law preempted

the City’s effort to regulate ethanol transloading at the Facility and thus refused to abide by the Permit’s restrictions.

B.

On June 16, 2008, Norfolk Southern filed this declaratory

judgment action in the Eastern District of Virginia against the

City and Richard Baier of the City’s Department of Transportation and Environmental Services.5

 In three counts of its

complaint, Norfolk Southern alleged that the Ordinance, as

applied through the Permit, was preempted by three separate

federal statutes, the FRSA (Count Three), the ICCTA (Count

Four), and the HMTA (Count Five).6 For relief, Norfolk

Southern sought a declaration that the Ordinance and Permit

were preempted and an injunction barring the City from

enforcing them.

4The Ordinance, as amended, provides in pertinent part that "[h]auling

. . . bulk materials . . . is prohibited on all streets within the City, except

pursuant to a permit issued [by the City]." Ordinance § 5-2-27(a). 

5Baier and the City are collectively referred to herein as the "City." 

6

In addition to its three preemption claims, the complaint alleged that

the original ordinance was inapplicable to ethanol hauling (Count One)

and was void for vagueness (Count Two). After concluding that the claims

in these first two counts were moot, the district court awarded summary

judgment to the City on them. Norfolk Southern does not appeal that ruling. 

6 NORFOLK SOUTHERN v. ALEXANDRIA
On June 25, 2008, the City filed its answer to the complaint, a third-party complaint against RSI, and a counterclaim

against Norfolk Southern. The third-party complaint and

counterclaim sought declaratory and injunctive relief against

both Norfolk Southern and RSI. In support thereof, the City

alleged that

[b]ecause [Norfolk Southern] and RSI intend to

increase the volume of ethanol transloading operations to a 24-hour a day, 7-day a week basis, and to

use many more trucks than the permit allows, there

is an actual controversy between the parties regarding the authority of the City to regulate the use of

City streets by ethanol-filled trucks from the Van

Dorn Yard.

J.A. 81. Following discovery, the parties filed cross-motions

for summary judgment, seeking relief as a matter of law.

Before the district court ruled on the cross-motions, the

STB issued its decision on the City’s petition for an administrative declaration concerning the City’s authority to regulate

the Facility. Notably, the STB concluded that Norfolk Southern’s operation thereof "constitutes transportation by rail carrier" and thus is "shielded from most state and local laws,

including zoning laws, by the preemption provision [of the

ICCTA]." City of Alexandria, Virginia — Petition for Declaratory Order, Finance Docket No. 35157 at 1 (S.T.B. Feb. 17,

2009) (the "STB Decision").7 The STB Decision explained

that "the Facility is part of [Norfolk Southern]’s rail operations" and, as such, "the Facility qualifies for federal preemption." Id. at 3.

Two months after the STB Decision, the district court ruled

on the parties’ cross-motions for summary judgment. In pertinent part, the court concluded that the Ordinance was pre7The STB Decision is found at J.A. 443-49. 

NORFOLK SOUTHERN v. ALEXANDRIA 7
empted under both the ICCTA and the HMTA. See District

Court Opinion 18-37. Additionally, however, the court ruled

that the Ordinance was not preempted under the FRSA. See

id. at 11-18. The City appeals from the award of partial summary judgment to Norfolk Southern, maintaining that the

Ordinance is not preempted by either the ICCTA or the

HMTA. Norfolk Southern and RSI have cross-appealed, contending that the Ordinance is also preempted under the FRSA.

We possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review de novo a district court’s award of summary

judgment. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th

Cir. 2002). On cross-motions for summary judgment, a district court should "rule upon each party’s motion separately

and determine whether summary judgment is appropriate as

to each under the [Federal Rule of Civil Procedure] 56 standard." Monumental Paving & Excavating, Inc. v. Pa. Mfrs.’

Ass’n Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999). Summary

judgment is appropriate only if the record shows "there is no

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law." Fed. R. Civ. Proc.

56(c).

III.

Our resolution of these appeals implicates two important

principles of constitutional law. First, the doctrine of preemption — rooted in the Constitution’s Supremacy Clause — permits Congress to expressly displace state or local law in any

given field. See Worm v. Am. Cyanamid Co., 970 F.2d 1301,

1304 (4th Cir. 1992) ("Congress may expressly provide that

federal law supplants state authority in a particular field

. . . .").8 Second, the principle of constitutional avoidance set

8The Supremacy Clause provides that the Constitution and laws of the

United States are "the supreme Law of the Land . . . any Thing in the Con8 NORFOLK SOUTHERN v. ALEXANDRIA
forth in Ashwander v. Tennessee Valley Authority requires the

federal courts to strive to avoid rendering constitutional rulings unless absolutely necessary. See 297 U.S. 288, 347

(1936) (Brandeis, J., concurring) ("It is not the habit of the

Court to decide questions of a Constitutional nature unless

absolutely necessary to a decision of the case." (internal quotation marks omitted)). 

Although the district court addressed and ruled upon each

of Norfolk Southern’s alternative statutory bases for preemption, our resolution of these appeals may rest on only one of

those bases if it satisfies the legal standards for preemption.

See Catawba Indian Tribe of S.C. v. City of Rock Hill, 501

F.3d 368, 372 n.4 (4th Cir. 2007) ("We are . . . entitled to

affirm the district court on any ground that would support the

judgment in favor of the party prevailing below."). And, as

explained herein, we are content to affirm the court’s ruling

that the Ordinance, as applied to Norfolk Southern through

the Permit, is preempted by the ICCTA. Because our disposition of the ICCTA claim renders moot Norfolk Southern’s

other preemption claims, we need not reach or address the

HMTA preemption aspect of the City’s appeal or the FRSA

preemption issue presented by Norfolk Southern’s crossappeal. We therefore dismiss the HMTA and FRSA aspects

of these appeals and vacate the court’s judgment on those two

claims.

A.

In 1887, the Interstate Commerce Act created the Interstate

Commerce Commission (the "ICC"), which regulated rail

transportation for 122 years. In 1995, Congress enacted the

stitution or Laws of any State to the Contrary notwithstanding." U.S.

Const. art. VI, cl. 2. For purposes of the Supremacy Clause, "the constitutionality of local ordinances is analyzed in the same way as that of statewide laws." Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471

U.S. 707, 713 (1985). 

NORFOLK SOUTHERN v. ALEXANDRIA 9
ICCTA, which terminated the ICC and replaced it with the

STB, which has "broad jurisdiction over ‘transportation by

rail carriers.’" Island Park, LLC v. CSX Transp., 559 F.3d 96,

102 (2d Cir. 2009) (quoting 49 U.S.C. § 10501(b)(1)). Indeed,

the STB has exclusive jurisdiction over "(1) transportation by

rail carriers . . . and (2) the construction, acquisition, operation, abandonment, or discontinuance of . . . tracks, or facilities." 49 U.S.C. § 10501(b). "Transportation" by rail carriers

includes, in relevant part,

(A) [a] facility . . . related to the movement of passengers or property, or both, by rail, regardless of

ownership or an agreement concerning use; and

(B) services related to that movement, including

receipt, delivery, elevation, transfer in transit, . . .

storage, handling, and interchange of property.

Id. § 10102(9). The ICCTA also contains an express preemption clause: "the remedies provided under this part with

respect to the regulation of rail transportation are exclusive

and preempt the remedies provided under Federal and State

law." Id. § 10501(b). 

Our Court has heretofore recognized that Congress has

"‘narrowly tailored the ICCTA preemption provision to displace only ‘regulation,’ i.e., those state laws that may reasonably be said to have the effect of ‘managing’ or ‘governing’

rail transportation.’" PCS Phosphate Co. v. Norfolk S. Corp.,

559 F.3d 212, 218 (4th Cir. 2009) (quoting Fla. E. Coast Ry.

Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir.

2009)). By contrast, the ICCTA does not preempt those state

or local laws that have a more remote or incidental impact on

rail transportation. See id. Moreover, state and local governments may act, pursuant to their general police powers, to regulate certain areas affecting railroad activity; for example,

local electric, building, fire, and plumbing codes are generally

10 NORFOLK SOUTHERN v. ALEXANDRIA
not preempted. See Green Mtn. R.R. Corp. v. Vermont, 404

F.3d 638, 643 (2d Cir. 2005). 

1.

In assessing this matter, we first consider whether the Ordinance, as applied through the Permit, regulates "transportation

by a rail carrier," as defined by the ICCTA. Any such regulation is preempted unless it can be classified as a permissible

exercise of the City’s police powers. Although the parties

agree that ethanol transloading falls within the ICCTA’s preemptive scope, they disagree on whether the Ordinance and

Permit directly regulate the Facility and its transloading operations.

It is well established that a state or local law that permits

a non-federal entity to restrict or prohibit the operations of a

rail carrier is preempted under the ICCTA. See, e.g., Green

Mtn., 404 F.3d at 643 (concluding that ICCTA preempted

state environmental law that "unduly interfere[d] with interstate commerce by giving the local body the ability to deny

the carrier the right to construct facilities or conduct operations" (internal quotation marks omitted)); Vill. of Ridgefield

Park v. N.Y. Susquehanna & W. Ry. Corp., 750 A.2d 57, 64

(N.J. 2000) (holding that state and local regulation "must not

have the effect of foreclosing or restricting the railroad’s ability to conduct its operations or otherwise unreasonably burdening interstate commerce" (internal quotation marks

omitted)).9

9The STB has heretofore concluded that local regulation interfering

with railroad operations is preempted by the ICCTA. See, e.g., Borough

of Riverdale — Petition for Declaratory Order, Finance Docket No. 33466

at 8 (S.T.B. Sept. 10, 1999) (concluding that local regulations imposing "a

local permitting . . . process as a prerequisite to the railroad’s [use] of its

facilities are preempted because they would, of necessity, impinge upon

the federal regulation of interstate commerce"). 

NORFOLK SOUTHERN v. ALEXANDRIA 11
Norfolk Southern maintains that, "by asserting the power to

determine if, when, and under what conditions trucks may

enter or leave the Facility, the City’s actions do directly regulate the Facility." Br. of Appellees 17. The district court likewise concluded that "the Ordinance affords the City nearly

unlimited discretion regarding when and under what conditions to grant permits. . . . ‘[T]he railroad is restrained from

[its activities] until a permit is issued . . . .’" District Court

Opinion 27 (quoting Green Mtn., 404 F.3d at 643).

Put simply, we agree with the district court that the Ordinance and Permit regulate ethanol transloading at the Facility.

The Ordinance authorizes the City to impose any "conditions

and restrictions, as the director [of transportation] may deem

appropriate to promote traffic safety." Ordinance § 5-2-27(b).

This open-ended provision grants the City unlimited control

over the Facility and its transloading. Moreover, the record

reveals the substantial practical implications of the City’s

enforcement actions. In his deposition, a Norfolk Southern

trainmaster explained the common-sense proposition that

limiting the number of trucks that leave [the Facility]

directly affects how many railcars can be unloaded

. . . . [I]t would just be a short amount of time before

my tracks would be full . . . and I wouldn’t be able

to switch the traffic for my other customers and service my other customers as required.

J.A. 292. Another Norfolk Southern employee observed that

the backlog in rail traffic caused by the restrictions specified

in the Permit would adversely affect the "continuous movement of freight through our yards." Id. at 276. Moreover, this

effect "could ripple elsewhere through the [Norfolk Southern]

rail system." Id. at 258.

The City asserts that the Permit regulates only the trucks

leaving the Facility, not the transloading process itself, and

that "delivery, and therefore transportation, is complete upon

12 NORFOLK SOUTHERN v. ALEXANDRIA
transloading." Br. of Appellants 25. According to the City, the

Permit "do[es] not regulate any aspect of the movement of

trains, the unloading or transloading of trains, the time of day

during which transloading can occur, or the number of trucks

that can be filled with ethanol in any day." Id. Although the

City relies on several decisions for its legal position here,

none of those authorities actually support the City’s position

in this appeal. See Fla. E. Coast Ry., 266 F.3d at 1328; CFNR

Operating Co. v. City of Am. Canyon, 282 F. Supp. 2d 1114

(N.D. Cal. 2003); In re Vt. Ry., 769 A.2d 648 (Vt. 2000).

For example, in Florida East Coast Railway, a permittee’s

use of a railyard was not activity within the ICCTA’s preemptive scope because the yard "serve[d] no public function and

provide[d] no valuable service to" the railroad, as it only

involved the permittee’s "operation of a private distribution

facility" on railroad-owned land. See 266 F.3d at 1336. The

Eleventh Circuit held that

existing zoning ordinances of general applicability,

which are enforced against a private entity leasing

property from a railroad for non-rail transportation

purposes, are not sufficiently linked to rules governing the operation of the railroad so as to constitute

laws "with respect to regulation of rail transportation."

Id. at 1331. The dispute in that case involved the application

of local laws to a receiver’s business that happened to be on

railroad property. In this dispute, however, the Ordinance and

Permit directly impact Norfolk Southern’s ability to move

goods shipped by rail. In fact, the Eleventh Circuit carefully

distinguished its decision from the situation presented here,

where the local permitting requirements "unduly interfere

with interstate commerce by giving the local body the ability

to deny the carrier the right to construct facilities or conduct

NORFOLK SOUTHERN v. ALEXANDRIA 13
operations." Id. at 1331 n.5 (emphasis and internal quotation

marks omitted).10

In the dispute between the City and Norfolk Southern, by

contrast, the Ordinance and Permit necessarily regulate the

transloading operations of Norfolk Southern at the Facility.

Thus, the City has regulated "transportation by a rail carrier,"

as defined by the ICCTA.11

2.

Next, the City asserts that, even if the Permit and Ordinance regulate "transportation by a rail carrier," it was yet

entitled to issue the Permit pursuant to its police powers. In

order for a state or local regulation to be a proper exercise of

police power in such a context, the regulation must not (1)

discriminate against rail carriers or (2) unreasonably burden

rail carriage. N.Y. Susquehanna & W. Ry. Corp. v. Jackson,

500 F.3d 238, 254 (3d Cir. 2007) (citing Green Mtn., 404

10The other authorities relied on by the City are likewise inapposite. See

Vt. Ry., 769 A.2d at 653-55 (concluding that ICCTA did not preempt local

laws that regulated activity — a railroad’s operation of a salt distributorship — "ancillary to the operations of the rail line" that did not have "an

economic impact on [the railroad’s] operations"); CFNR Operating Co.,

282 F. Supp. 2d at 1118 (concluding that ICCTA did not preempt regulation that did not "prevent anyone from running a rail operation or otherwise interfere with or attempt to regulate rail operations"). 

11The City also maintains that the Ordinance and Permit do not regulate

a "rail carrier," as the City contends that it has sought to regulate only

those trucks travelling to and from the Facility. This contention is also

without merit. As explained above, the activities regulated by the Ordinance and Permit are, as recognized by the STB, "an integral part of [the

railroad’s] provision of transportation by rail carrier." Hi Tech Transp.,

LLC — Petition for Declaratory Order, Finance Docket No. 34192 at 7

(S.T.B. Aug. 14, 2003). Indeed, considering the precise Facility at issue

in this appeal, the STB Decision concluded that "transloading is bundled

with the transportation services that [Norfolk Southern] provides to ethanol shippers." STB Decision 4. As a result, the transloading operations at

the Facility are conducted by a "rail carrier," as defined by the ICCTA. 

14 NORFOLK SOUTHERN v. ALEXANDRIA
F.3d at 643). The Second Circuit’s Green Mountain decision

further explains that local regulations are not preempted "at

least to the extent that [they] protect public health and safety,

are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be

approved (or rejected) without the exercise of discretion on

subjective questions." 404 F.3d at 643.

Although the Ordinance and Permit commendably seek to

enhance public safety, they unreasonably burden rail carriage

and thus cannot escape ICCTA preemption under the police

power exception. Several courts have recognized that requiring a rail carrier to obtain a locally issued permit before conducting rail operations — generally referred to as "permitting"

or "preclearance" requirements — will impose an unreasonable burden on rail transportation. See, e.g., Green Mtn., 404

F.3d at 643; City of Auburn v. U.S. Gov’t, 154 F.3d 1025,

1030-31 (9th Cir. 1998). Here, for example, the City has the

power to halt or significantly diminish the transloading operations at the Facility by declining to issue haul permits or by

increasing the restrictions specified therein. As a result, the

Ordinance entails "extended or open-ended delays" based on

the City’s issuance of the Permit, and issuance of the Permit

necessarily requires "the exercise of discretion" by the City.

Green Mtn., 404 F.3d at 643. The Ordinance and Permit are

thus preempted, notwithstanding the police powers possessed

by the City. Accordingly, the Ordinance and Permit, as

applied to Norfolk Southern, are preempted under the ICCTA.12

12The City also seeks to forestall the application of preemption by relying on a legal presumption against federal preemption. See, e.g.,

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). The history of federal

regulation of railroad operations and the effect of the Ordinance and Permit on such operations, however, plainly render this argument meritless.

See United States v. Locke, 529 U.S. 89, 108 (2000) ("[A]n ‘assumption’

of nonpre-emption is not triggered when the State regulates in an area

where there has been a history of significant federal presence."); Fayard

v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir. 2008) ("Historically,

federal regulation of railroads has been extensive . . . ."). The City seeks

NORFOLK SOUTHERN v. ALEXANDRIA 15
B.

As a separate aspect of its appeal, the City asks that we

reverse the district court’s ruling that the HMTA provides an

alternative basis for preemption. And through its cross-appeal,

Norfolk Southern asks us to reverse the court’s ruling that the

Ordinance was not preempted by the FRSA. We are constrained to decline both invitations. Our decision on the

ICCTA issue — that federal law preempts the Ordinance from

being applied to Norfolk Southern through the Permit —

moots the HMTA and FRSA issues pursued here. 

We are always obliged to assure ourselves that a live dispute exists between the parties at all stages of litigation. See

Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997). A dispute is moot when "the parties lack a legally

cognizable interest in the outcome." City of Erie v. Pap’s

A.M., 529 U.S. 277, 287 (2000) (internal quotation marks

omitted). And the parties lack such an interest when, for

example, our resolution of an issue could not possibly have

any practical effect on the outcome of the matter. See Fla.

Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health &

Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir. 2000)

("When events subsequent to the commencement of a lawsuit

create a situation in which the court can no longer give the

plaintiff meaningful relief, the case is moot and must be dismissed."). Thus, although the parties may desire that we "render an opinion to satisfy their demand for vindication or

curiosity about who’s in the right and who’s in the wrong,"

we may only "decide cases that matter in the real world."

Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1250 (10th

to avoid this principle by once again asserting that the Ordinance applies

only to "truck traffic on city streets." Br. of Appellants 12. As explained

above, we reject that characterization because the Ordinance, as applied

through the Permit, regulates much more than the local transportation of

ethanol by truck. 

16 NORFOLK SOUTHERN v. ALEXANDRIA
Cir. 2009) ("[O]ur . . . inability to render judgment on nice

hypothetical or advisory questions . . . distinguishes the role

of the federal judge from that of the advisor or academic in

our constitutional order."). 

The foregoing principles are controlling with respect to the

HMTA and FRSA issues. Any ruling by us on Norfolk Southern’s alternative bases for preemption under the HMTA or the

FRSA could not have any practical effect on the outcome of

this case. Whether those statutes preempt the Ordinance and

Permit would have no impact on our disposition of this matter, namely, that the Ordinance and Permit are preempted by

the ICCTA. Thus, were we to pass on the HMTA and FRSA

bases for preemption, we could offer nothing more than an

advisory opinion on potentially difficult questions of federalism and constitutional law. See Friends of Everglades v. S.

Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009)

("To decide a moot issue is to issue an advisory opinion

. . . ."); see also Bell Atl. Md., Inc. v. Prince George’s County,

212 F.3d 863, 865 (4th Cir. 2000) (discussing constitutional

nature of preemption analysis). The Ashwander doctrine of

constitutional avoidance — which applies with equal force to

preemption claims — cautions against any such endeavor. See

Columbia Venture, LLC v. Dewberry & Davis, LLC, __ F.3d

__, No. 08-1318, slip op. at 5-6 (4th Cir. May 12, 2010) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341-47

(1936) (Brandeis, J., concurring)). Accordingly, we will not

blithely tread into other complex issues when our disposition

of the ICCTA claim definitively resolves this matter. 

The customary practice when a case is rendered moot on

appeal is to vacate the moot aspects of the lower court’s judgment. See Alvarez v. Smith, 130 S. Ct. 576, 581 (2009)

(explaining that courts "normally . . . vacate the lower court

judgment in a moot case because doing so clears the path for

future relitigation of the issues between the parties" (internal

quotation marks omitted)); see also Mellen v. Bunting, 327

F.3d 355, 364 (4th Cir. 2003) ("If a claim becomes moot after

NORFOLK SOUTHERN v. ALEXANDRIA 17
the entry of a district court’s final judgment and prior to the

completion of appellate review, we generally vacate the judgment . . . ."). The established practice of vacatur is warranted,

however, "only where mootness has occurred through happenstance, rather than through the voluntary action of the losing party." Mellen, 327 F.3d at 364. Although vacatur is not

warranted when a case has been rendered moot by settlement,

"a party who seeks review of the merits of an adverse ruling,

but is frustrated by the vagaries of circumstance, ought not in

fairness be forced to acquiesce in the judgment." U.S. Bancorp Mortgage Co. v. Bonner Mall P’Ship, 513 U.S. 18, 25

(1994). 

In these circumstances, we are satisfied that vacatur of the

district court’s judgment on the HMTA and FRSA preemption

counts is warranted. Addressing those issues would simply

result in an advisory opinion being rendered on moot issues.

Furthermore, the City’s appeal of the HMTA preemption ruling and Norfolk Southern’s cross-appeal of the FRSA preemption ruling were rendered moot not by virtue of any

voluntary action of either party, but instead by the vagaries of

circumstance. In short, the parties are denied appellate review

of those adverse determinations as a result of our decision on

the ICCTA preemption issue and not because of some unilateral action on their part, such as settlement.13 Thus, there is no

13We sincerely appreciate the thoughtful views expressed by our distinguished colleague in his fine separate opinion, and particularly thank him

for his concurrence in the preemption aspect of this opinion. We also

essentially agree on the mootness question. See post at 19 ("[O]ur decision

on the ICCTA issue effectively moots the HMTA and FRSA issues."). It

appears that our sole difference is a narrow one, which may well be of

greater interest to the academic community than to everyday litigants:

whether an explicit vacatur of the HMTA and FRSA judgments is warranted, or whether the implicit vacatur advocated by the partial dissent sufficiently protects the interests of the parties and the judicial system. As

explained above, we see an explicit vacatur ruling as essential, primarily

because application of the constitutional avoidance doctrine has denied

Norfolk Southern and the City their rights of appeal, pursuant to 28 U.S.C.

§ 1291, of the district court’s judgment on the HMTA and FRSA preemption claims. 

18 NORFOLK SOUTHERN v. ALEXANDRIA
reason to deviate from our customary practice of vacating the

lower court’s judgment as to moot claims. 

IV.

Pursuant to the foregoing, we affirm the district court’s

judgment on the ICCTA preemption issue, dismiss the balance of these appeals as moot, and vacate the judgment as to

the HMTA and FRSA preemption issues.

AFFIRMED IN PART,

DISMISSED IN PART,

AND VACATED IN PART

GOODWIN, Chief District Judge, concurring in part and dissenting in part:

I join the majority in affirming the district court’s ruling on

the ICCTA issue, but respectfully disagree with its decision

to vacate the district court’s rulings on the HMTA and FRSA

issues. Rather than vacating those rulings, I would affirm the

district court’s judgment on the ICCTA issue, dismiss the

City’s appeal of the court’s HMTA ruling, and dismiss Norfolk Southern’s cross-appeal of the FRSA ruling.

By their appeals, the parties ask us to address the district

court’s rulings on whether the Ordinance is preempted by

HMTA and FRSA. I agree with the majority that we should

decline this invitation, because our decision on the ICCTA

issue effectively moots the HMTA and FRSA issues. See Air

Line Pilots Assn., Int’l v. UAL Corp., 897 F.2d 1394, 1396-97

(7th Cir. 1990).

Nevertheless, the HMTA and FRSA issues are not "moot"

in the traditional, Article III sense of that word. That is, we

continue to possess jurisdiction to review them, but may

decline to do so out of prudential concerns. As the Seventh

Circuit has explained, there is both a conceptual and a practiNORFOLK SOUTHERN v. ALEXANDRIA 19
cal reason for this: "The conceptual reason is that it is cases

rather than reasons that become moot. Whether a court gives

one or ten grounds for its result is not a question to which

Article III prescribes an answer. The practical reason is that

the alternative grounds are ripe for decision and deciding

them may help a higher or a subsequent court." Id. (citing

United States v. Leon, 468 U.S. 897, 924-25 (1984); 13A

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 3533 (2d ed. 1984)).

Therefore, while we could decide these issues within the

confines of Article III, doing so in this case would be inappropriate. As the majority points out, federal courts have long

adhered to the constitutional avoidance doctrine. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring) ("The Court will not ‘formulate a

rule of constitutional law broader than is required by the precise facts to which it is to be applied.’" (quoting Liverpool,

N.Y. & Phila. Steamship Co. v. Emigration Comm’rs, 113

U.S. 33, 39 (1885))). This admonition is particularly apt in the

preemption context, where federalism issues are at the forefront.

But the majority takes the unnecessary step of vacating the

HMTA and FRSA aspects of the district court decision —

what the Supreme Court has termed an "extraordinary remedy." U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513

U.S. 18, 26 (1994). The majority bases its decision to vacate

on its belief that "[t]he customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the

lower court’s judgment." Ante at 17-18 (citing Alvarez v.

Smith, 130 S. Ct. 576, 581 (2009), and Mellen v. Bunting, 327

F.3d 355, 364 (4th Cir. 2003)). Upon closer inspection, however, the cases relied upon by the majority are materially distinguishable from this case.

In both Alvarez and Mellen, the issues on appeal became

moot before they were presented to the appellate court. For

20 NORFOLK SOUTHERN v. ALEXANDRIA
instance, in Alvarez the petitioner sued state officials for

unlawfully seizing his property. After the court of appeals

rendered a judgment, but before oral argument in the Supreme

Court, the state returned the petitioner’s property. Because

this left no Article III case or controversy, the Court held that

it lacked jurisdiction over the dispute, vacated the lower-court

decision, and remanded with instructions to dismiss. Alvarez,

130 S. Ct. at 583. And in Mellen, cadets at the Virginia Military Institute sought declaratory and injunctive relief against

the VMI superintendant for violating their religious freedoms.

After the district court judgment, but before the case was

argued on appeal, the plaintiff-cadets graduated. Judge King

explained that "[i]f a claim becomes moot after the entry of

a district court’s final judgment and prior to the completion of

appellate review, we generally vacate the judgment and

remand for dismissal." Mellen, 327 F.3d at 364. Thus, the

panel vacated the district court judgment and dismissed the

case.

In those situations, I agree that vacatur was appropriate.

Something happened factually — prior to an appellate decision — that mooted the issues on appeal, depriving the appellate court of Article III jurisdiction. Because the cases became

moot before they could be reviewed on appeal, the lowercourt judgment was essentially unreviewable.

Here, however, it is our decision on the ICCTA issue,

rather than any underlying change in the facts, that has

"mooted" the HMTA and FRSA issues. Unlike the moot

issues in Alvarez and Mellen, those issues are not insulated

from appellate review because of a lack of federal jurisdiction. Rather, for prudential reasons, we are declining to

address them.

A similar situation was presented in United States v. Manning, 527 F.3d 828 (9th Cir. 2008). In that case, the United

States challenged a Washington state environmental statute.

The district court invalidated the state statute on several

NORFOLK SOUTHERN v. ALEXANDRIA 21
grounds. The district court ruled that it was preempted by federal law, and that it contravened federal sovereign immunity,

the Commerce Clause, and the Contract Clause. The State of

Washington appealed each of these rulings. The court of

appeals affirmed the district court’s decision on the preemption issue. Having identified one ground on which to affirm

the district court’s judgment, the court declined to address the

State’s other challenges. In a footnote, the court explained,

"Because the CPA is invalid under the Supremacy Clause, we

do not need to reach the additional constitutional challenges.

Although we do not reach the issue of sovereign immunity or

the challenges under the Commerce Clause and the Contract

Clause, we decline to vacate those portions of the district

court’s order as the State requests. Rather, we simply express

no view on issues unnecessary to this opinion." Manning, 527

F.3d at 837 n.8.

I would follow Manning’s lead in this case. We have chosen not to address the district court’s HMTA and FRSA rulings out of prudential concerns. Because we have chosen not

to address those issues, the only point of law from the district

court opinion with any preclusive effect is its ICCTA ruling.

See Restatement (Second) of Judgments § 27 cmt. O (1982)

("If the judgment of the [trial] court . . . was based on a determination of two issues, either of which standing independently would be sufficient to support the result, and . . . . the

appellate court upholds one of these determinations as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is

conclusive as to the first determination."). By expressing no

view on the propriety of the district court’s rulings on those

issues, and instead affirming the district court on the ICCTA

issue alone, only the ICCTA issue has continued viability.

The extraordinary remedy of vacatur is therefore unnecessary

in this case.

22 NORFOLK SOUTHERN v. ALEXANDRIA