                                            Filed:   September 8, 1999

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                            Nos. 97-2669(L)
                           (CA-95-2000-MJG)



Jeffrey D. Phillips,

                                                Plaintiff - Appellant,

           versus


CSX Transportation, Incorporated,

                                                 Defendant - Appellee.



                              O R D E R



     The court amends its opinion filed September 3, 1999, as

follows:

     On page 6, footnote 2, line 5 -- the citation to Trinidad v.

Southern Pacific is corrected to end “(5th Cir. 1991).”

                                          For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEFFREY D. PHILLIPS,
Plaintiff-Appellant,

v.

CSX TRANSPORTATION,
INCORPORATED,
Defendant-Appellee,

and
                                     No. 97-2669
CSX TRANSPORTATION,
INCORPORATED,
Defendant & Third Party Plaintiff,

and

PROCOR ALBERTA, INCORPORATED;
FALCONBRIDGE, LIMITED; UNION TANK
CAR COMPANY,
Third Party Defendants.

JEFFREY D. PHILLIPS,
Plaintiff-Appellee,

v.

                                     No. 97-2750
CSX TRANSPORTATION,
INCORPORATED,
Defendant-Appellant,

and
CSX TRANSPORTATION,
INCORPORATED,
Defendant & Third Party Plaintiff,

and

PROCOR ALBERTA, INCORPORATED;
FALCONBRIDGE, LIMITED; UNION TANK
CAR COMPANY,
Third Party Defendants.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-95-2000-MJG)

Argued: March 4, 1999

Decided: September 3, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges, and
SMITH, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Reversed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Earl Stanley Murphy, MOODY, STROPLE & KLOEP-
PEL, INC., Portsmouth, Virginia, for Appellant. Stephen Bennett
Caplis, WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: William J. Moody, Jr.,
MOODY, STROPLE & KLOEPPEL, INC., Portsmouth, Virginia, for
Appellant. Eric R. Harlan, WHITEFORD, TAYLOR & PRESTON,
L.L.P., Baltimore, Maryland, for Appellee.

                   2
OPINION

PER CURIAM:

This case involves a suit under the Federal Employer's Liability
Act ("FELA"), 45 U.S.C. §§ 51-60, based on a violation of the Fed-
eral Safety Appliance Act ("FSAA"), 49 U.S.C. §§ 20301-06. The
district court granted summary judgment in favor of Jeffrey Phillips,
holding that CSX Transportation violated the FSAA and was strictly
liable for the injury that Phillips sustained as a result of the violation.
In light of our decision in Deans v. CSX Transportation, Inc., 152
F.3d 326 (4th Cir. 1998), we find that the FSAA did not apply under
the circumstances of Phillips's injury, and we reverse the district
court's summary judgment order and grant summary judgment in
favor of CSX.

I.

On July 20, 1994, Jeffrey Phillips was injured while performing his
duties as a brakeman for CSX Transportation. At the time of his
injury, Phillips was the foreman of a yard crew engaged in normal
train switching operations at CSX's Cumberland Yard in Cumber-
land, Maryland. Such operations consist of taking arriving trains
apart, and putting departing trains together.

The normal procedure when a train arrives at the yard is for the
yard crew to disconnect all of the train's cars from one another, and
to turn the cars over to the car department for a mechanical inspec-
tion. As part of its inspection, the car department checks the cars'
safety appliances. If the car department discovers any defects during
this inspection, it sets the defective cars aside for repair. Once the
mechanical inspection is complete, the car department turns the cars
back over to the yard crew. The yard crew then assembles the cars
into new trains for departure. However, before a train may depart, it
must undergo a predeparture inspection, which the car department
also conducts. The yard crew engages the handbrakes on the cars in
an assembled train, detaches the engine, and then turns the train over
to the car department for the predeparture inspection. The car depart-
ment inspects the train's air brakes, and again checks its safety appli-
ances. Once the predeparture inspection is complete, the car

                     3
department turns the train over to the transportation crew, and the
train departs.

Phillips was injured while he was engaging the handbrakes on a
completed train, prior to turning the train over to the car department
for its predeparture inspection. The train upon which he was working
was sitting on a yard track. Phillips had set the handbrakes on three
of the cars in the train, and he was climbing onto a fourth car when
the handrail he was using to pull himself up gave way, causing him
to fall and injure his back.

Phillips filed suit against CSX on July 7, 1995. His complaint
alleged two bases for CSX's liability under FELA: 1) negligence on
the part of CSX for failing to maintain a safe workplace; and 2) strict
liability for CSX's failure to comply with the FSAA. The parties filed
cross-motions for summary judgment on the FSAA claim. On August
6, 1996, the district court granted summary judgment in favor of Phil-
lips on the issue of CSX's liability for violating the FSAA. Following
the court's summary judgment order, Phillips abandoned his negli-
gence claim, and proceeded to trial only on the question of damages
pursuant to his FSAA claim. On August 23, 1996, the jury awarded
Phillips $444,650. However, on April 25, 1997, the district court
granted CSX's motion to reduce the damage award as a matter of law
because Phillips's evidence of future economic loss and future medi-
cal expenses was too speculative, and his award for past economic
loss failed to take into account Medicare and railroad retirement pay-
roll deductions. Phillips's award was reduced to $76,533.54.

Phillips appeals the district court's reduction of damages, and CSX
appeals the court's summary judgment order on the FSAA claim.
Since we find that the district court erred in granting summary judg-
ment in favor of Phillips and not in favor of CSX, the reduction of
damages issue is moot.

II.

A.

This court reviews de novo a district court's order granting sum-
mary judgment. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d

                    4
1162, 1167 (4th Cir. 1988). Summary judgment is appropriate only
when the court, viewing the record as a whole and in the light most
favorable to the nonmoving party, finds that there is no genuine issue
of material fact and that the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); see, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-50 (1986); Terry's Floor Fashions, Inc. v.
Burlington Indus., 763 F.2d 604, 610 (4th Cir. 1985). A mere "scin-
tilla of evidence" is not sufficient to withstand a motion for summary
judgment. Rather, the evidence must be such that the jury reasonably
could find for the nonmoving party. Anderson, 477 U.S. at 252. The
court must draw all justifiable inferences in favor of the nonmoving
party. Id. at 255.

B.

The FSAA imposes a number of safety requirements on railroads.1
It is unlawful under the Act for a railroad to use railcars that are not
equipped with certain mandated safety features, including automatic
couplers, handbrakes, and secure steps, ladders, and running boards.
49 U.S.C. § 20302(a). In this case, the relevant requirement is that
railcars be "equipped with secure grab irons or handholds on its ends
and sides." Id. § 20302(a)(2).
_________________________________________________________________

1 Although the 1994 Federal Railroad Safety Authorization Act recodi-
fied the FSAA, the Railroad Safety Authorization Act's legislative his-
tory clearly demonstrates that the substantive provisions of the FSAA
remain unchanged. See S. Rep. No. 103-265, at 1 (1994) ("The purpose
of [the Railroad Safety Authorization Act] is to restate in comprehensive
form, without substantive change, certain general and permanent laws
related to transportation . . . ." (emphasis added)); id. at 5 ("[T]his bill
makes no substantive change in the law. It is sometimes feared that mere
changes in terminology and style will result in changes in substance or
impair the precedent value of earlier judicial decisions and other interpre-
tations. This fear might have some weight if this were the usual kind of
amendatory legislation when it can be inferred that a change of language
is intended to change substance. In codification law, however, the courts
uphold the contrary presumption: the law is intended to remain substan-
tively unchanged."). Thus, pre-1994 caselaw interpreting the FSAA
applies with equal force to the current codification.

                    5
The FSAA does not create an independent cause of action for those
injured because of a violation of the Act. Crane v. Cedar Rapids &
Iowa City Ry. Co., 395 U.S. 164, 166 (1969). However, for railroad
employees injured because of a FSAA violation, FELA provides the
cause of action. Id. Moreover, a FSAA violation is per se negligence
in a FELA suit. In other words, the injured employee has to show
only that the railroad violated the FSAA, and the railroad is strictly
liable for any injury resulting from the violation. Id.; O'Donnell v.
Elgin, Joliet & E. Ry. Co., 338 U.S. 384, 390-91 (1949); Deans v.
CSX Transp., Inc., 152 F.3d 326, 328 (4th Cir. 1998). However, the
FSAA's requirements apply to only railcars that are actually "in use."
Brady v. Terminal R.R. Assn., 303 U.S. 10, 13 (1938); United States
v. Northern Pac. Ry., 254 U.S. 251, 254-55 (1920); Deans, 152 F.3d
at 328. As we have observed previously, the purpose of the "in use"
limitation is to give railcar operators the opportunity to inspect for
and correct safety appliance defects before the FSAA exposes the
operators to strict liability for such defects. See Angell v. Chesapeake
& Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980) ("[T]he intent of
the statute is to exclude from its coverage only such functions as are
necessary to detect and correct those defective conditions for which
absolute liability will be imposed.").2 Whether a train is "in use," for
purposes of the FSAA, is a question of law for the court to decide.
Deans, 152 F.3d at 329.

Since Congress enacted the FSAA, the federal courts have
attempted to define the outer limits of its applicability. The Act
applies more broadly than simply to trains en route from their origin
to their destination on main line tracks. For example, a transfer train
moving on a short connecting track from one train yard to another still
must satisfy the FSAA's requirements. See, e.g., United States v. Sea-
board Air Line R.R. Co., 361 U.S. 78, 81-83 (1959); Northern Pac.
Ry., 254 U.S. at 254-55; Louisville & Jeffersonville Bridge Co. v.
United States, 249 U.S. 534, 538-40 (1919); United States v. Chicago,
_________________________________________________________________

2 Angell actually involved the Boiler Inspection Act, 49 U.S.C.
§§ 20701-20703. However, because the "in use" language in the Boiler
Inspection Act is identical to the language in the FSAA, courts have
applied caselaw interpreting the Boiler Inspection Act to the FSAA, as
well. See, e.g., Deans, 152 F.3d at 329 (citing Angell); Trinidad v. South-
ern Pac. Transp. Co., 949 F.2d 187, 189 (5th Cir. 1991) (same).

                    6
Burlington & Quincy R.R. Co., 237 U.S. 410, 412-13 (1915); United
States v. Erie R.R. Co., 237 U.S. 402, 408-09 (1915). Moreover, a
train that has reached its destination, but has not yet been turned over
to the yard receiving it, is still "in use" under the FSAA. Brady, 303
U.S. at 13-14. However, the FSAA does not apply to train cars
involved in switching operations. Seaboard Air Line R.R. Co., 361
U.S. at 80; Northern Pac. Ry., 254 U.S. at 254; Trinidad v. Southern
Pac. Transp. Co., 949 F.2d 187, 188-89 (5th Cir. 1991).3 Determining
the point at which switching operations end and a train becomes "in
use" is the key issue in this case.

The Fifth Circuit addressed this exact issue in Trinidad v. Southern
Pacific Transportation Co., 949 F.2d 187 (5th Cir. 1991). In Trinidad,
the plaintiff was hurt while performing an air brake inspection imme-
diately prior to the departure of a train. The court articulated a bright-
line test to determine when a train has completed switching operations
and is in use, stating that a train is not in use until it is fully assembled
and the crew has completed their predeparture inspection. Id. at 189.
However, rather than adopt the Fifth Circuit's approach, we recently
established our own standard for determining whether a railcar is in
use in Deans v. CSX Transportation, Inc., 152 F.3d 326 (4th Cir.
1998). In Deans, we rejected the Trinidad bright-line test. Id. at 329.
Instead, to establish whether a railcar is "in use," a court must look
at "a number of different factors," the most important of which are
"where the train was located at the time of the accident and the activ-
_________________________________________________________________

3 In Erie Railroad Co., the Supreme Court seemed to indicate in dicta
that the FSAA's automatic coupler and grab iron requirements apply
more broadly than the Act's air brake provision. Erie R.R. Co., 237 U.S.
at 408 ("[Assembling and breaking-up trains] are not train movements
but mere switching operations, and so are not within the air-brake provi-
sion. The other provisions calling for automatic couplers and grab irons
are of broader application and embrace switching operations as well as
train movements . . . ."). However, later opinions did not recognize such
a distinction. See, e.g., Seaboard Air Line R.R. Co., 361 U.S. at 80 (citing
Erie Railroad Co. for the proposition that "`switching operations' [are]
not `train' movements within the meaning of the [FSAA]"); Northern
Pac. Ry. Co., 254 U.S. at 254 ("A moving locomotive with cars attached
is without the provision of the [FSAA] only when it is not a train; as
where the operation is that of switching, classifying and assembling cars
within railroad yards for the purpose of making up trains.").

                    7
ity of the injured party." Id. Based upon this standard, we held that
a train that "already had its engine coupled to it and was standing on
a track in the rail yard in preparation for imminent departure -- not
in storage or waiting to be moved into a repair location" -- was in
use. Id. We additionally noted that the injured employee was part of
the train's transportation crew, and that at the time of his injury, he
was in the process of releasing the handbrakes to put the train in
motion. Id. The fact that the predeparture air brake test had not yet
been completed was not dispositive. Id.

In the present case, when the district court granted summary judg-
ment in favor of Phillips on the issue of CSX's liability for its FSAA
violation, it did not have the benefit of the Deans holding to guide its
decision. Therefore, we must reconsider the facts in this case in light
of Deans. We find that this case differs significantly from Deans with
respect to the two Deans factors. While in both cases the trains were
assembled and sitting in the yard, the train in Deans was undergoing
its predeparture inspection, it was coupled to its engine, its hand-
brakes were being released, and its departure was "imminent." Deans,
152 F.2d at 330. In this case, on the other hand, the train was about
to be uncoupled from its engine, its handbrakes were being engaged,
and it had yet to undergo its predeparture inspection. Moreover, the
plaintiff in Deans and Phillips in this case were engaged in very dif-
ferent activities at the time of their injuries. The plaintiff in Deans
was a member of the train's transportation crew, whereas Phillips was
a member of the Cumberland yard crew. Phillips's responsibilities
were limited to switching operations. Plus, the plaintiff in Deans was
injured while releasing the train's handbrakes, while Phillips was hurt
while engaging his train's handbrakes to prevent it from moving.
Finally, in Deans we emphasized the fact that the plaintiff could have
released the handbrakes after the predeparture inspection, in conjunc-
tion with the departure of the train. Id. at 329. In this case, Phillips
had to engage the handbrakes prior to the predeparture inspection, in
conjunction with the assembly of the train. Taken together, the facts
in this case show that Phillips was injured at the end of the switching
process, rather than at the beginning of the departure process.4 Thus,
_________________________________________________________________

4 Phillips, himself, stated in an affidavit filed with the district court that
switching operations are not complete until a train is fully assembled, its
handbrakes are set, and it is turned over to the car department for the pre-
departure inspection. J.A. at 646 (stating that, at the time of his injury,
he and his crew "had not finished our switching work").

                     8
in accordance with Deans and Supreme Court precedent, we hold that
the train upon which Phillips was injured was not "in use" at the time
of his injury, and summary judgment in favor of CSX, rather than
Phillips, on the FSAA claim is the proper result. Accordingly, we
reverse the district court's summary judgment order in favor of Phil-
lips, and grant summary judgment in favor of CSX.

III.

As indicated above, following the district court's summary judg-
ment order, Phillips abandoned his negligence claim under FELA.
Accordingly, now that we have granted summary judgment in favor
of CSX on Phillips's FSAA claim, Phillips has no remaining basis to
recover any damages from CSX. Therefore, the district court's down-
ward adjustments to Phillips's damage award are moot.

IV.

For the reasons stated above, we reverse the district court's sum-
mary judgment order, and grant summary judgment in favor of CSX
as to CSX's liability under the FSAA.

REVERSED

                    9
