                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3002
                                   ___________

Jeffrey Bates,                       *
                                     *
           Plaintiff/Appellee,       *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Missouri & Northern Arkansas         * Western District of Missouri.
Railroad Company, Inc.,              *
                                     *
           Defendant/Appellant,      *
                                     *
Jimmy Pemberton, Art Medley,         *
                                     *
           Defendants.               *
                                ___________

                             Submitted: April 15, 2008
                                Filed: December 1, 2008
                                 ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Missouri & Northern Arkansas Railroad Company, Inc. (MNA) appeals from
the district court’s1 order remanding to state court Jeffrey Bates’s personal injury
claims against MNA. As modified, the order is affirmed.


      1
        The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred pursuant to the consent
of the parties. See 28 U.S.C. § 636(c)(1).
                                           I.

        On April 27, 2006, Bates suffered severe injuries when his vehicle collided
with a MNA train at a signaled railroad crossing in Barton County, Missouri. Bates
filed a lawsuit in Missouri state court against MNA and the railroad employees who
were operating the train.

       MNA removed the case to the United States District Court for the Western
District of Missouri, arguing that the doctrine of complete preemption provided
federal question jurisdiction. Specifically, MNA maintained that some or all of
Bates’s claims fell within the ambit of the Federal Railroad Safety Act (FRSA), 49
U.S.C. § 20101 et seq., and were therefore completely preempted under our decision
in Lundeen v. Canadian Pacific Railway Co., 447 F.3d 606 (8th Cir. 2006) (Lundeen
I). MNA also argued that complete preemption by the Locomotive Inspection Act
(LIA), 49 U.S.C. § 20701 et seq., provided an alternative basis for federal jurisdiction.
The district court agreed that one of Bates’s claims—his allegation that MNA had
failed to install gates at the crossing where he was injured—was completely
preempted. After Bates filed an amended complaint that excluded this claim, the
district court remanded the case to state court, declining to exercise supplemental
jurisdiction over the remaining claims.2 MNA appealed that order.




      2
         As an alternative ground for affirming the district court, Bates argues that the
district court’s remand is an unreviewable order under 28 U.S.C. § 1447(d). The
district court, however, based its remand on a refusal to exercise supplemental
jurisdiction under § 1367(c), not on a determination that it lacked subject matter
jurisdiction. The order is therefore reviewable. See Lindsey v. Dillard’s, Inc., 306
F.3d 596, 598-99 (8th Cir. 2002). But see HIF Bio, Inc. v. Yung Shin Pharm. Indus.
Co., 508 F.3d 659, 667 (Fed. Cir. 2007) (concluding that “a remand based on
declining supplemental jurisdiction must be considered within the class of remands
. . . barred from appellate review by § 1447(d)”), cert. granted, 77 U.S.L.W. 3226
(U.S. Oct. 14, 2008) (No. 07-1437).

                                          -2-
      During the pendency of the appeal, Congress amended the FRSA preemption
provision that is at the heart of this dispute. Both parties briefed and argued how the
amended statute should be applied. Shortly after this case was argued, however, we
decided Lundeen v. Canadian Pacific Railway Co., 532 F.3d 682 (8th Cir. 2008)
(Lundeen II). Lundeen II addressed a variety of questions related to the amended
provision, and it established the controlling law for this case.

                                           II.

       Complete preemption provides a narrow exception to the general rule that,
absent diversity, a case filed in state court is not removable to federal court unless it
affirmatively alleges a federal claim. See Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 7-8 (2003). The complete preemption doctrine recognizes that federal law
may so wholly displace a state law cause of action that a state law claim is converted
into a federal claim from its inception. Krispin v. May Dep’t Stores Co., 218 F.3d
919, 922 (8th Cir. 2000). Complete preemption is distinguishable from preemption
as a defense, because the former has jurisdictional implications while the latter does
not. “To be completely preemptive, a statute must have ‘extraordinary pre-emptive
power,’ a conclusion courts reach reluctantly.” Gaming Corp. of Am. v. Dorsey &
Whitney, 88 F.3d 536, 543 (8th Cir. 1996) (quoting Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 65 (1987)).

       In Lundeen I, we concluded that § 20106 of the FRSA completely preempted
state claims alleging that a railroad negligently inspected its tracks. Because federal
regulations established standards for track inspection and did not leave open a state
law cause of action, we held that the plaintiffs’ claims were completely preempted and
that remand to state court was improper. Lundeen I, 447 F.3d at 614-15.

       In August 2007, Congress enacted an amendment clarifying § 20106. The
amended statute provides that “[n]othing in this section creates a Federal cause of
action on behalf of an injured party or confers Federal question jurisdiction for such

                                          -3-
State law causes of action.” 49 U.S.C. § 20106(c). Furthermore, the immediately
preceding subsection states that “[t]his subsection shall apply to all pending State law
causes of action arising from events or activities occurring on or after January 18,
2002.” Id. § 20106(b)(2). The amendment “reflected Congress’s disagreement with
the manner in which the courts, including our own in Lundeen I, had interpreted §
20106 to preempt state law causes of action whenever a federal regulation covered the
same subject matter as the allegations of negligence in a state court lawsuit.” Lundeen
II, 532 F.3d at 688.


      We addressed the amended language in Lundeen II and concluded that it
overruled our prior holding. Id. at 688. Moreover, we read the retroactivity clause in
subsection (b) together with the jurisdiction-stripping provision in subsection (c).
Accordingly, we applied the amendment retroactively and required the district court
to remand to state court a lawsuit pending in federal court when the amendment was
passed. Id. at 691-92. We are bound by that decision. See Brown v. First Nat’l Bank,
844 F.2d 580, 582 (8th Cir. 1988) (“[O]ne panel of this Court is not at liberty to
overrule an opinion filed by another panel.”).


                                           III.


       MNA’s arguments for complete preemption under the FRSA have been
foreclosed by the § 20106 amendment and our decision in Lundeen II. MNA argues,
for example, that the new language denying federal question jurisdiction is separable
from the retroactivity clause; it thus insists that federal question jurisdiction continues
to exist for claims filed before the statute was amended. That contention, however,
is contrary to the holding in Lundeen II and must be rejected. MNA also argues that
the case should be remanded so that the district court can develop the facts and
determine the impact of the amendment. This argument fails to recognize the
significant difference between complete, jurisdictional preemption and preemption as

                                           -4-
an affirmative defense. Development of the facts may be necessary to adjudicate
MNA’s affirmative defense of preemption. But Lundeen II makes clear that the FRSA
does not convert a state law claim into a federal cause of action. Absent diversity,
therefore, a state court is the proper forum for litigating MNA’s preemption defense.3


                                          IV.


       As an alternative ground for federal question jurisdiction, MNA argues that two
of Bates’s claims are completely preempted under the Locomotive Inspection Act.
We disagree. The LIA regulates the design and construction of locomotives, and the
Supreme Court has held that it preempts conflicting state laws concerning locomotive
equipment. See Napier v. Atlantic Coast Line R.R. Co., 272 U.S. 605, 613 (1926).
We have never held, however, that LIA preemption is so comprehensive that it can
provide federal question jurisdiction over a state law cause of action. Moreover, the
single district court case that MNA cites to support its complete preemption theory,
Bell v. Illinois Central Railroad Co., 236 F. Supp. 2d 882 (N.D. Ill. 2001), has been
overruled. See Adkins v. Illinois Cent. R.R. Co., 326 F.3d 828, 835 (7th Cir. 2003).


     In any event, a fair reading of Bates’s claims demonstrates that they do not
come within the scope of the LIA. Bates does not allege that MNA’s locomotive
equipment was inadequate; rather, he asserts that its employees failed to operate the
equipment with necessary care. Compare First Sec. Bank v. Union Pac. R.R. Co., 152


      3
        We acknowledge MNA’s concern that some of the district court’s language
might be misconstrued as deciding the merits of its affirmative preemption defense.
While it is apparent to us that the district court was ruling only on the availability of
complete preemption, we think it prudent to remove any doubt. We therefore vacate
that portion of the district court’s order which relates to MNA’s use of preemption as
an affirmative defense.


                                          -5-
F.3d 877, 880 (8th Cir. 1998) (holding that a claim alleging an inadequate warning
horn was preempted by the LIA). Furthermore, and as it correctly noted, the district
court was required to “resolve all doubts about federal jurisdiction in favor of
remand.” Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d
619, 625 (8th Cir. 1997). Thus, the court did not err in finding that Bates’s claims are
not completely preempted under the LIA.


                                          V.


      As modified, the order is affirmed.


BEAM, Circuit Judge, concurring and dissenting.


        I concur in Part IV of the court's opinion. For the reasons set forth in Parts B
and C (Preemption and Retroactivity) of my dissent in Lundeen v. Canadian
Pacific Railway Co., 532 F.3d 682, 696-702 (8th Cir. 2008) (Lundeen II) and in
Parts I and II of my dissent from denial of panel rehearing and rehearing by the
court en banc in Lundeen II, I dissent from the conclusions reached in Parts II and
III of the panel majority's opinion in this case.
                        ______________________________




                                          -6-
