                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-1998

Wheeling Lake Erie v. Pub Util Comm PA
Precedential or Non-Precedential:

Docket 96-3703,96-3704




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

Recommended Citation
"Wheeling Lake Erie v. Pub Util Comm PA" (1998). 1998 Decisions. Paper 62.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/62


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Filed March 31, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-3703, 96-3704

WHEELING & LAKE ERIE RAILWAY COMPANY

v.

PUBLIC UTILITY COMMISSION OF THE
COMMONWEALTH OF PENNSYLVANIA; DAVID W.
ROLKA, Chairman of the Pennsylvania Public Utility
Commission; JOSEPH RHODES, JR.; JOHN M. QUAIN;
LISA CRUTCHFIELD; JOHN HANGER, In their Official
Capacities as Members of the Pennsylvania Public Utility
Commission; SCOTT TOWNSHIP, PENNSYLVANIA;
JAMES P. MULLIGAN, Chairman of the Board of
Commissioners of Scott Township, Pennsylvania

       SCOTT TOWNSHIP,
       PENNSYLVANIA and JAMES P.
       MULLIGAN, Chairman of the
       Board of Commissioners of Scott
       Township, Pennsylvania,
       Appellants in 96-3703

       PUBLIC UTILITY COMMISSION
       OF THE COMMONWEALTH OF
       PENNSYLVANIA; DAVID W.
       ROLKA, JOSEPH RHODES, JR.;
       JOHN M. QUAIN, LISA
       CRUTCHFIELD and
       JOHN HANGER,
       Appellants in 96-3704

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Civ. No. 94-01776
Argued Thursday, September 11, 1997

Before: MANSMANN, NYGAARD and GARTH, Circuit Judges

(Opinion Filed: March 31, 1998)

       David A. Salapa (Argued)
       Assistant Counsel
       John F. Povilaitis
       Chief Counsel
       Pennsylvania Public Utility
       Commission
       P.O. Box 3265
       Harrisburg, PA 17105-3265

       Counsel for Appellants, Pennsylvania
       Public Utility Commission; David W.
       Rolka; Joseph Rhodes, Jr.; John M.
       Quain; Lisa Crutchfield; and John
       Hanger

       David L. Haber, Esquire (Argued)
       Weinheimer, Schadel & Haber
       602 Law & Finance Building
       429 Fourth Avenue
       Pittsburgh, PA 15219

       Counsel for Appellants, Scott
       Township, Pennsylvania; and James
       Mulligan

       Gregory G. Fletcher (Argued)
       Baker, Donelson, Bearman &
        Caldwell
       165 Madison Avenue, Suite 2000
       Memphis, TN 38103

       Richard R. Wilson
       Vuono, Lavelle & Gray
       2310 Grant Building
       Pittsburgh, PA 15219

       Counsel for Appellee

                                  2
       Charles D. Gray
       National Association of Regulatory
       Utility Commissioners
       1102 ICC Building
       P.O. Box 684
       Washington, D.C. 20044

       Counsel for Amicus, National
       Association of Regulatory Utility
       Commissioners

       Andrew S. Gordon
       Chief Counsel
       Gina M. D'Alfonso
       Assistant Counsel in Charge
       Commonwealth of Pennsylvania
       Department of Transportation
       Forum Place, 555 Walnut Street
       Office of Chief Counsel, 9th Floor
       Harrisburg, PA 17101-1900

       Counsel for Amicus, Commonwealth
       of Pennsylvania Department of
       Transportation

OPINION OF THE COURT

NYGAARD, Circuit Judge.

In this appeal we must decide whether assessing a
railroad for a portion of the construction and maintenance
costs of a bridge intersecting its right-of-way constitutes a
discriminatory tax under the Railroad Revitalization and
Regulatory Reform (4-R) Act of 1976, 49 U.S.C. S 11501.1
The district court held that the assessment was a
discriminatory tax. We will reverse.
_________________________________________________________________

1. The original complaint alleges a violation of 49 U.S.C. S 11503. That
section was recodified pursuant to Pub. L. No. 104-88, S 102(a) (1996).
We will refer to provisions of the 4-R Act at issue here by section number
as currently codified in title 49, U.S. Code.

                               3
I. Background

The Wheeling & Lake Erie Railway Company subleases a
railroad right-of-way passing under "Old Washington Pike"
in Scott Township, Allegheny County, Pennsylvania. The
bridge supporting that highway became so deteriorated that
it was closed in 1982. The Township procured the
necessary approvals from the Pennsylvania Public Utility
Commission and constructed a new bridge at the
Township's initial expense. The Commission then ordered
Wheeling to pay 3% of the total construction costs of the
bridge replacement project and 15% of the maintenance
costs of the new bridge (excluding costs of snow and ice
removal).2 The Commission also assessed another railroad,
whose tracks pass under the same span, 3% and 15%
respectively. That railroad is not a party. The Pennsylvania
Department of Transportation was to pay 7% of the
construction costs. The Township was to pay the remaining
87% of the construction costs and 70% of the maintenance
costs, with an 80% reimbursement for construction costs
coming from Pennsylvania's Billion Dollar Bridge Project
Fund.

Wheeling filed this action requesting declaratory and
injunctive relief from the construction and maintenance
costs. It argued that the assessment was a discriminatory
tax in violation of the 4-R Act. All parties filed motions for
summary judgment. In its order granting Wheeling's
motion, the district court declared that the assessment was
an unlawfully discriminatory tax under the 4-R Act. The
court also enjoined the defendants from assessing or
collecting the construction and maintenance costs from
Wheeling. The Commission and the Township appealed
separately. We consolidated the appeals.
_________________________________________________________________

2. The Commission delegated this case to a Public Utility Commission
Administrative Law Judge who issued a Recommended Decision. (J.A. at
226.) That decision included a proposed allocation of the construction
and maintenance costs and also decided that Wheeling was not
discriminated against on the basis of its railroad status. (J.A. at 245-
50.)
The Commission adopted the Recommended Decision in its September
23, 1994 Order. (J.A. at 266.)

                               4
II. Eleventh Amendment Immunity

The Commission did not raise its Eleventh Amendment 3
argument before the district court. Nonetheless, Eleventh
Amendment immunity can properly be raised for thefirst
time on appeal. See Edelman v. Jordan, 415 U.S. 651, 658,
94 S. Ct. 1347, 1363 (1974) ("the Eleventh Amendment
sufficiently partakes of the nature of a jurisdictional bar so
that it need not be raised in the trial court"); Bolden v.
Southeastern Pa. Trans. Auth., 953 F.2d 807, 812 (3d Cir.
1991).

The Eleventh Amendment bars suits against
unconsenting states in federal courts. See Seminole Tribe of
Fla. v. Florida, ___ U.S. ___, 116 S. Ct. 1114, 1122 (1996).
There are two exceptions: Congress may abrogate a state's
immunity, id., and parties may sue state officers for
prospective injunctive and declaratory relief. See Idaho v.
Coeur d'Alene Tribe of Idaho, ___ U.S. ___, 117 S. Ct. 2028,
2034 (1997); Seminole, ___ U.S. at ___, 116 S. Ct. at 1132;
Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908);
Balgowan v. New Jersey, 115 F.3d 214, 217 (3d Cir. 1997).
Here, the parties do not dispute that the Pennsylvania
Public Utility Commission is an arm of the Commonwealth
of Pennsylvania protected by Eleventh Amendment
principles of sovereign immunity.4 Also, Pennsylvania has
_________________________________________________________________

3. "The Judicial Power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the Unites States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." U.S. Const. amend. XI. "[T]he Eleventh
Amendment [stands] for the constitutional principle that state sovereign
immunity limited the federal courts' jurisdiction under Article III."
Seminole Tribe of Fla. v. Florida, ___ U.S. ___, 116 S. Ct. 1114, 1127
(1996). "[A] State can waive its Eleventh Amendment protection and
allow a federal court to hear and decide a case commence or prosecuted
against it. The Amendment, in other words, enacts a sovereign immunity
from suit, rather than a nonwaivable limit on the federal judiciary's
subject-matter jurisdiction." Idaho v. Coeur d'Alene Tribe of Idaho, ___
U.S. ___, 117 S. Ct. 2028, 2033 (1997).

4. In its reply brief, the Commission analyzed whether it is an arm of the
state under the criteria this Court set forth in Christy v. Pennsylvania
Turnpike Commission, 54 F.3d 1140, 1144 (3d Cir. 1995). The
Commission concluded that they are indeed an arm of the state, and
Wheeling does not take issue with that determination.

                                  5
not given its consent to be sued in federal court. 5 The
question remaining is whether any exceptions to immunity
apply.

A. Congressional Abrogation of Immunity

A valid abrogation of Eleventh Amendment immunity
requires Congress to "unequivocally express[ ] its intent to
abrogate the immunity" and to act "pursuant to a valid
exercise of power." Seminole, ___ U.S. at ___, 116 S. Ct. at
1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.
Ct. 423, 426 (1985)). Here, the parties agree that section
11501(c)6 is an unmistakably clear expression of Congress's
intent to abrogate states' immunity regarding violations of
section 11501(b). However, the parties disagree on whether
the statute is a valid exercise of congressional power.

The dispute centers largely around Seminole, which
overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 23,
109 S. Ct. 2273, 2286 (1989) (holding that Congress could
validly abrogate a state's sovereign immunity pursuant to
its Commerce Clause powers). In Seminole, the Court noted
that it had previously recognized only one other source of
congressional power to abrogate states' sovereign immunity
--the Fourteenth Amendment. Seminole, ___ U.S. at ___,
116 S. Ct. at 1125 (citing Fitzpatrick v. Bitzer, 427 U.S.
445, 96 S. Ct. 2666 (1976)). Thus, after Seminole, the only
remaining source of congressional power to abrogate states'
Eleventh Amendment immunity is the Fourteenth
Amendment.
_________________________________________________________________

5. The Commonwealth of Pennsylvania has codified its position on
immunity as follows: "Nothing contained in this subchapter shall be
construed to waive the immunity of the Commonwealth from suit in
Federal courts guaranteed by the Eleventh Amendment to the
Constitution of the United States." 42 Pa. Cons. Stat. S 8521.

6. Subsection (c) states in pertinent part as follows:

        "Notwithstanding section 1341 of title 28 and without regard to the
        amount in controversy or citizenship of the parties, a district
court
       of the United States has jurisdiction, concurrent with other
       jurisdiction of courts of the United States and the States, to
prevent
       a violation of subsection (b) of this section."

49 U.S.C. S 11501(c).

                                6
Congress promulgated the 4-R Act pursuant to its
Commerce Clause powers because of the interstate nature
of the railroad industry. Section 11501 announces
Congress's concern that discriminatory taxation
"unreasonably burden[s] and discriminate[s] against
interstate commerce." 49 U.S.C. S 11501(b); see also 49
U.S.C. S 10101 (listing the purposes and policies of railroad
regulation). However, when determining the sources of
Congress's authority to legislate, we may look beyond the
expressed constitutional basis in a statute's preamble or
legislative history. See Fullilove v. Klutznick, 448 U.S. 448,
478, 100 S. Ct. 2758, 2774-75 (1980). The Supreme Court
directs us to:

       "proceed to the consideration whether [S 11501] is
       "appropriate legislation" to enforce the Equal Protection
       Clause, that is . . . whether [S 11501] may be regarded
       as an enactment to enforce the Equal Protection
       Clause, whether it is "plainly adapted to that end" and
       whether it is not prohibited by but is consistent with
       "the letter and spirit of the constitution." "

Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S. Ct. 1717,
1724 (1966). In a later examination of Morgan, the Court
established that to answer this inquiry:

       "[i]t was enough that the Court could perceive a basis
       upon which Congress could reasonably predicate a
       judgment that application of literacy qualifications
       within the compass of S 4(e) would discriminate in
       terms of access to the ballot and consequently in terms
       of access to the provision of administration of
       government programs."

Fullilove, 448 U.S. at 477, 100 S. Ct. at 2774 (citing
Morgan, 384 U.S. at 652-53, 86 S. Ct. at 1722). 7
_________________________________________________________________

7. Since Seminole, the District of Wyoming is the only other court to
address this issue, specifically regarding the 4-R Act. See Union Pac.
R.R.
Co. v. Burton, 949 F. Supp. 1546 (D. Wyo. 1996). We disagree with that
court's analysis because it was restricted to the expressed purposes of
the 4-R Act set forth in section 10101. See id. at 1554. We look beyond
the general purposes of the 4-R Act as a whole, to what we perceive as
the purpose underlying section 11501, the portion of the act implicated
here.

                               7
The legislative history of the statute before us shows
"Congress was aware that the 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.' " Department of
Rev. of Or. v. ACF Indus., 510 U.S. 332, 336, 114 S. Ct.
843, 847 (1994) (quoting Western Air Lines, Inc. v. Board of
Equalization, 480 U.S. 123, 131, 107 S. Ct. 1038, 1043
(1987) (quoting S. Rep. No. 91-630, at 3 (1969))). Moreover,
another court of appeals has held that the very purpose of
section 11501 was to remedy discrimination against
railroads:

       "Until this law was passed, as pointed out by the
       appellants, states could constitutionally classify
       railroads differently from all other taxpayers for the
       imposition of state taxes without violating the equal
       protection clause of the Fourteenth Amendment. It was
       the obvious purpose of Congress to put an end to this
       practice, where such treatment of the railroads as a
       class was discriminatory in effect."

Alabama Great S. R.R. Co. v. Eagerton, 663 F.2d 1036,
1040 (11th Cir. 1981) (emphasis added). The Supreme
Court has also said that "[c]orrectly viewed, S 5 [of the
Fourteenth Amendment] is a positive grant of legislative
power authorizing Congress to exercise its discretion in
determining whether and what legislation is needed to
secure the guarantees of the Fourteenth Amendment."
Morgan, 384 U.S. at 651, 86 S. Ct. at 1723-24.

It is evident to us that Congress recognized the potential
for state and local taxing authorities to discriminate against
railroads in violation of their Equal Protection rights under
the Fourteenth Amendment. We conclude that Congress
had the power, pursuant to Section Five of the Fourteenth
Amendment, to promulgate section 11501, and did so to
protect the railroads. Therefore, Congress validly abrogated
Eleventh Amendment immunity, and the district court
properly exercised jurisdiction over this lawsuit.

Neither our analysis nor our conclusion is affected by the
recent decisions cited by the Commission. It cites Wilson-
Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996), as

                               8
employing the correct post-Seminole analysis for
determining whether an act of Congress, generally regarded
to be within its Commerce Clause powers, can also be
justified by the Fourteenth Amendment. The Commission
reads Wilson-Jones to hold that, barring an explicit
congressional recitation of authority under the Fourteenth
Amendment, only statutes that remedy discrimination
against a class of persons that Fourteenth Amendment
jurisprudence has already identified as deserving special
protection can be regarded as enactments to enforce the
provisions of the Fourteenth Amendment.

We disagree with this narrow reading of Wilson-Jones.
There, the Court found no evidence that the core provisions
of the Fair Labor Standards Act, before being amended by
the Equal Pay Act, were enacted pursuant to Section Five
of the Fourteenth Amendment. Although the Court feared
the implications of an expansive rule "that an act is valid
[merely] if it is rationally related to achieving equal
protection of the laws," it expressly admitted that its
"opinion might be different if Congress madefindings that
a particular group needed legal protection to remedy some
sort of invidious discrimination not directly addressed by
federal precedent." Wilson-Jones, 99 F.3d at 209, 210 n.4.
Here, however, the remedial nature of section 11501's
constitutional protection is evident, despite the lack of an
explicit congressional statement. We believe that Congress
was within its discretion when it found that railroads need
special protection from local tax assessors. Therefore, we
reach a different conclusion than the Court in Wilson-Jones.8

Nor is our result affected by City of Boerne v. Flores, ___
U.S. ___, 117 S. Ct. 2157 (1997), in which the Supreme
Court declared the Religious Freedom Restoration Act
unconstitutional. The Court found that the Act was "so out
of proportion to a supposed remedial or preventive object
that it cannot be understood as responsive to, or designed
to prevent, unconstitutional behavior. It appears, instead,
to attempt a substantive change in constitutional
protections." Id. at ___, 117 S. Ct. at 2170. In so holding,
_________________________________________________________________

8. The reasoning in Wilson-Jones was also rejected in another Fair Labor
Standards Act case. See Mills v. Maine, 118 F.3d 37, 45 (1st Cir. 1997).

                                9
the Court reasoned that "[i]f Congress could define its own
powers by altering the Fourteenth Amendment's meaning,"
it would be "difficult to conceive of a principle that would
limit congressional power." Id. at ___, 117 S. Ct. at 2168.
Here, section 11501 is not out of proportion to its objective,
nor does it substantively change any constitutional
protections.

We recently decided College Savings Bank v. Florida
Prepaid Postsecondary Education Expense Board, Nos. 97-
5055, 97-5086, 1997 WL 749514 (3d Cir. Dec. 5, 1997), in
which we held that the right to be free of false advertising
is not a constitutionally protected intangible property right.
Therefore, the Due Process Clause of the Fourteenth
Amendment was not implicated, and we concluded that the
Trademark Remedy Clarification Act of 1992 did not
abrogate Florida's immunity because it did not further the
purposes of the Fourteenth Amendment. College Savings
Bank, however, was expressly limited to its facts, id. at *9,
and did not concern the Equal Protection Clause. It does
not contradict our decision. Similarly, there is no
dissonance between our decision in In re Sacred Heart
Hospital of Norristown, No. 97-1126, 1998 WL 3627 (3d Cir.
Jan. 8, 1998), and our decision here. In Sacred Heart, we
did not distinguish between the Bankruptcy Clause and the
Commerce Clause (both Article I powers) as being
inappropriate sources of congressional power to abrogate
states' Eleventh Amendment immunity. Id. at *5. Further,
we found "no evidence suggesting that S 106(a) [of the
Bankruptcy Code] was enacted pursuant to any
constitutional provision other than Congress' Bankruptcy
Clause power." Id. at *6. Here, however, we have found
such evidence in section 11501's legislative history and
judicially-recognized anti-discrimination purpose.

In sum, section 11501 is a valid exercise of congressional
power under Section Five of the Fourteenth Amendment,
thus effectively abrogating the Commission's Eleventh
Amendment immunity.9 We now turn to the merits of the
appeal.
_________________________________________________________________

9. The individual Commissioners also claim that they are immune from
suit in federal court pursuant to the Eleventh Amendment. Wheeling

                               10
III. The 4-R Act

Wheeling argues that the assessment of construction and
maintenance costs violates section 11501 because it is an
illegal tax that discriminates against railroads. 10 The district
court agreed, concluding that the assessments were"taxes"
within the meaning of section 11501. Because this issue
involves the interpretation of federal statutory law, our
review is plenary. See In re TMI, 89 F.3d 1106, 1112 (3d
Cir. 1996). Unfortunately, the 4-R Act does not define "tax."
We must, therefore, begin by determining the appropriate
rule of construction.

In Department of Revenue of Oregon v. ACF Industries,
510 U.S. 332, 114 S. Ct. 843 (1994), the Court held that
nonrailroad property tax exemptions were not prohibited by
subsection (b)(4).

       "When determining the breadth of a federal statute that
       impinges upon or pre-empts the States' traditional
       powers, we are hesitant to extend the statute beyond
       its evident scope. We will interpret a statute to pre-
       empt the traditional state powers only if that result is
       "the clear and manifest purpose of Congress." "

Id. at 345, 114 S. Ct. at 850-51 (citations omitted).

We have decided two cases dealing with the statutory
interpretation of "taxes" in a similar context. In National
_________________________________________________________________

contends that the Commissioners are within the second exception noted
above: state officials can be sued for prospective injunctive and
declaratory relief from constitutional violations. See Ex parte Young, 209
U.S. 123, 28 S. Ct. 441 (1908); Balgowan v. New Jersey, 115 F.3d 214,
217 (3d Cir. 1997); Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir.
1981); see also Idaho v. Coeur d'Alene Tribe of Idaho, ___ U.S. ___, 117
S. Ct. 2028, 2034 (1997); Seminole, ___ U.S. ___, 116 S. Ct. 1114, 1132
(1996). The parties dispute whether the declaratory or injunctive relief
that Wheeling seeks is truly prospective. Because we have decided that
the Commission is not immune, we need not reach this issue.

10. "The following acts unreasonably burden and discriminate against
interstate commerce, and a State, subdivision of a State, or authority
acting for a State or subdivision of a state may not do any of them: . . .
Impose another tax that discriminates against a rail carrier . . . ." 49
U.S.C. S 11501(b)(4).

                                11
Railroad Passenger Corp. v. Pennsylvania Public Utility
Commission, 848 F.2d 436 (3d Cir. 1988) (hereinafter
Amtrak), the issue was whether "any taxes or other fees"
covered levies against Amtrak for building and maintaining
the Cassatt Avenue bridge. Id. at 438 (interpreting 45
U.S.C. S 546b (recodified at 49 U.S.C. S 24301(l))). That
decision outlined the declining history of intercity rail
passenger service in America and Congress's efforts to
revitalize it. Id. at 438. Congress rationalized Amtrak's
exemption by theorizing that cities would gladly pay a user
contribution to maintain rail passenger service. Id. In
Amtrak, we reasoned, "[w]hether such`special assessments'
will be construed as `taxes' depends on the context in which
the terms are raised." Id. Additionally, we instructed that
"the meaning of the word `tax' is a matter of federal law
deduced from congressional policy underlying the statute,
rather than from state tax labels developed in an entirely
unrelated legal context." Id. at 439. After noting that
exemptions from taxation usually do not apply to such
assessments, we adopted some general rules:

       "When a tax exemption is granted to certain private
       entities, the statutory language is construed closely
       because it affords a special privilege not available to
       others. Likewise, when a statute waives the federal
       government's freedom from local taxation, that
       language is also narrowly construed because it defeats
       the immunity shielding the federal government. In
       interpreting an exemption statute, the intention of the
       legislative body is pivotal."

Id. Amtrak, we concluded, was not an ordinary private firm;
Congress intended it to be exempt from state and local
taxes and fees to the same extent as the federal
government. Thus, under a liberal reading of that statute,
the bridge assessment was within the meaning of the
statutory phrase "taxes or other fees." Id. at 439-40.

Likewise, in Southeastern Pennsylvania Transportation
Authority v. Pennsylvania Public Utility Commission , 826 F.
Supp. 1506 (E.D. Pa. 1993) (hereinafter SEPTA ), aff'd 27
F.3d 558 (3d Cir. 1994) (unpublished table decision), the
same issue arose under a different statute, which confers
Amtrak's tax immunity upon certain commuter authorities.

                               12
See 49 U.S.C. S 24501(g). The district court found that
Congress intended the phrase "taxes or other fees" in
section 24501(g) to have the same broad meaning as our
Amtrak decision found Congress to have given to identical
language in section 24301(l). Id. at 1525-26.

Amtrak and SEPTA involved the interpretation of statutes
with different purposes and histories from the statute at
issue here. Nonetheless, we believe the reasoning
underlying those cases is instructive regarding the
principles of statutory construction applicable here. The
statutes in Amtrak and SEPTA were construed broadly
because those entities had tax immunity comparable to
that of the federal government. In contrast, we must
interpret section 11501 strictly here, because Wheeling is a
private entity benefitting from a special provision exempting
it from discriminatory taxation. Thus, we must consider the
context in which the term "tax" is raised and the
congressional policy underlying section 11501 to determine
if it was the clear and manifest purpose of Congress to
include such assessments within that provision.

As the Commission, Scott Township, and the Department
of Transportation all point out, there is nothing in the
legislative history that sheds light on what Congress meant
by the word "tax" in section 11501(b)(4). See generally
Alabama Great S. R.R. Co. v. Eagerton, 663 F.2d 1036,
1041 (11th Cir. 1981). Moreover, they maintain that
because assessing railroads for such improvements was
commonplace when the 4-R Act was enacted and Congress
did not address that practice in either the Act or the
legislative history, then Congress did not intend "tax" to
include bridge assessments. This argument parallels the
Supreme Court's reasoning in ACF regarding ad valorem
tax exemptions:

       "It was common at the time [S 11501] was drafted, as
       it is now, for States with generally applicable ad
       valorem property taxes to exempt various classes of
       commercial property. . . . Given the prevalence of
       property tax exemptions when Congress enacted the
       4-R Act, [S 11501's] silence on the subject--in light of
       the explicit prohibition of tax rate and [tax] assessment

                               13
       ratio discrimination--reflects a determination to permit
       the States to leave their exemptions in place."

ACF, 510 U.S. at 344, 114 S. Ct. at 850.

Another court followed this reasoning in Chicago & North
Western Transportation Co. v. Webster County, 71 F.3d 265
(8th Cir. 1995). There, the County Board of Supervisors
was expanding a drainage ditch running under a railroad's
right-of-way. The County ordered the railroad to install a
larger culvert under its tracks. When the railroad refused,
the County installed the culvert anyway, and assessed the
cost against the railroad. The Court found that the culvert
solely benefitted the railroad because it kept the railroad's
right-of-way intact: the Supervisors could have legally
bulldozed a wider ditch through the right-of-way, resulting
in the same benefit to the public. The Court also noted that
before the passage of the 4-R Act:

       "many states had statutes requiring railroads to
       construct improvements, including culverts, when
       drainage ditches crossed their rights-of-way . . . .

        These statutes represent the juridical background
       against which Congress passed the 4-R Act, and
       nothing in either its language or its legislative history
       indicates that Congress wanted to upset or undermine
       state drainage laws. Congress did not express an intent
       to preempt the states' longstanding and common
       practice of charging railroads for certain drainage
       improvements, and we refuse to impute that intent into
       S [11501(b)(4)], given the historical environment in
       which it was enacted."

71 F.3d at 267-68. Here, the statutes giving the
Commission the powers to order the construction and
assess the costs of railroad crossing improvements date
back to 1913. See 66 Pa. Cons. Stat. Ann. SS 2702, 2704
(historical notes). Like the ad valorem tax exemptions in
ACF and the culvert assessment in Chicago & North
Western, assessing bridge improvement costs in
Pennsylvania was a longstanding practice when Congress
enacted the 4-R Act. Thus, we are convinced that the
congressional policy underlying section 11501 was not to
treat bridge assessments as taxes. We conclude that it was

                                14
not the clear and manifest purpose of Congress to include
bridge assessments within the meaning of the word "tax" in
section 11501(b)(4).

This conclusion is consistent with our comments in
Amtrak that such assessments are usually not considered
within exemptions from taxation. 848 F.2d at 439. There,
we found support in an early Supreme Court case reaching
a similar conclusion:

       "The charges here [costs of grading and paving a street]
       are not taxes proper, are not contributions to the state
       or to the city for the purpose of enabling either to carry
       on its general administration of affairs, but are charges
       only, and specially, for the cost for a local improvement
       supposed to have resulted in an enhancement of the
       value of the railroad company's property."

Illinois Cent. R. Co. v. Decatur, 147 U.S. 190, 208-209, 13
S. Ct. 293, 298 (1893) (cited by Amtrak, 848 F.2d at 439).
Importantly, the amount assessed here does not raise
revenue for the general fund of either the Township or the
Commonwealth. (J.A. at 266-68)

Our conclusion is also consistent with the progeny of the
Head Money Cases (Edye v. Robertson), 112 U.S. 580, 5 S.
Ct. 247 (1884) (finding that a fifty-cent levy on ship owners
for every immigrant passenger entering a U.S. port was not
a tax because the money was used to regulate immigration,
not for the general support of the government). Following
that precedent, the Courts of Appeals for the Eighth and
Ninth Circuits have decided that assessing the costs of a
new drainage culvert and the costs of railroad regulation,
respectively, are not taxes within the meaning of
section 11501. See Chicago & North Western, 71 F.3d at
265; Union Pac. R.R. Co. v. Public Util. Comm'n of Or., 899
F.2d 854 (9th Cir. 1990). Those Courts reasoned that since
the government levies at issue did not raise money for the
general welfare, they were not taxes within the meaning of
the respective statutes.

Wheeling's counter argument is that the assessment
must be a tax because it partially relieves the state or
township fisc of the cost of a bridge benefitting the public.
This argument is not convincing. The bridge assessment

                                15
does not contribute to the general fund of either the
Township or the Commonwealth and is specific to a
particular bridge at a particular crossing. Moreover, none of
the levies in Chicago & North Western, Union Pacific, Head
Money Cases, and Decatur were held to be taxes, even
though they all arguably relieved burdens on the public
fisc.

According to Wheeling, Chicago & North Western held
that assessments are not taxes because the improvement
benefitted that railroad alone. We disagree, and believe that
the more logical reading is that to the extent a portion of
the project benefitted that railroad, the cost of that portion
should be assessed to that railroad. Here, the Commission
determined that a new bridge would benefit both the
railroad and the public and assessed the costs of
construction and maintenance accordingly. The
Commission's assessment order adopting the
Recommended Decision of the Administrative Law Judge
stated: "Only after the Commission determines a particular
party has a direct interest in or bears some responsibility
for or obtains a discernible benefit from a specific crossing,
does the Commission exercise its authority under state law
to assess construction and maintenance responsibilities."
(J.A. at 249, emphasis added.) Here, Wheeling directly
benefits from the above-grade crossing of the Township's
right-of-way because its trains are not impeded by any
cross-traffic. This directly benefits Wheeling's safety and
efficiency. Although the bridge benefits the general public,
the peculiar benefit Wheeling receives from the construction
and maintenance of the bridge reinforces our conclusion
that the assessment is not a "tax" within the meaning of
section 11501.

There is no need to overrule either Amtrak or SEPTA, as
the Commission urges. Bridge assessments were intended
to be included in the phrase "taxes or other fees" regarding
the statutes applicable to those two cases, construed
broadly, but not intended to be included in the word "tax"
in section 11501, construed strictly. We find that the weight
of authority supports our conclusion that Congress did not
manifest a clear intent to include the assessment of bridge
construction and maintenance costs, like those at issue

                               16
here, within the meaning of "taxes" in section 11501.
Without taxes, there was no discriminatory taxation.
Therefore, the Commission and the Township did not
violate 49 U.S.C. S 11501.

IV.

In sum, we hold that the district court erred by
concluding that the assessments were discriminatory taxes,
and for the reasons set forth above, we will reverse.

                                17
GARTH, J., dissenting:

I cannot agree with the majority of the panel which has
reversed the district court's order of October 11, 1996, and
has held: (1) that we have subject matter jurisdiction to
decide Wheeling's claim against the Commonwealth; (2)
that accordingly, we need not reach the issue of the
Eleventh Amendment immunity of the individual
Commissioners; and (3) that the assessment of
construction and maintenance costs made against Wheeling
is not a tax and does not discriminate against Wheeling in
violation of 49 U.S.C.A. S 11501 et seq. (West 1997) ("the
4-R Act").

Because I believe that the majority has erred in its
constitutional analysis as well as in the result which it
reaches, I would affirm the district court's order.1 In doing
so, I would hold that under the doctrine of Ex Parte Young,
209 U.S. 123 (1908), all future maintenance costs can be
enjoined. I leave to the court for future decision, however,
the question as to whether relief is available for assessed,
but unpaid, construction costs.

I have come to this conclusion because I find no
Congressional power under the Fourteenth Amendment to
abrogate the sovereign immunity of the Commonwealth of
Pennsylvania. Hence, as to the Commonwealth, we have no
jurisdiction to entertain Wheeling's challenge. However, as
pertains to the individual Commissioners, their action in
assessing Wheeling constitutes -- under my analysis and
the precedents I cite -- a discriminatory tax.

Thus, I conclude that maintenance costs accruing in the
future can be enjoined. I leave open for another day the
question as to whether an unpaid assessment can be
enjoined without violating the Eleventh Amendment.

I.

As the majority has explained, the Eleventh Amendment
_________________________________________________________________

1. The issue of whether Eleventh Amendment sovereign immunity strips
subject matter jurisdiction from the federal forum was not before the
district court.

                               18
to the United States Constitution confers sovereign
immunity upon the States. Without its explicit consent, a
State cannot be sued in federal court unless Congress has
abrogated its immunity. To abrogate the States' sovereign
immunity, Congress must (1) unequivocally express its
intent to abrogate that immunity, and (2) act pursuant to
a valid exercise of power. Seminole Tribe v. Florida, ___ U.S.
___, 116 S. Ct. 1114, 1123 (1996). At this point, I depart
from the majority's analysis which upholds jurisdiction over
the 4-R Act as enforcing the Equal Protection Clause
because I cannot conclude that Congress could abrogate
Pennsylvania's sovereign immunity by recourse to the
Fourteenth Amendment.

I agree with the majority that the 4-R Act was enacted
pursuant to Congress' commerce powers, and thus, after
Seminole Tribe, abrogation of the States' sovereign
immunity can no longer be upheld on that basis. See
Majority Op. at 6. I further agree that we may venture
beyond the expressed intent of Congress to determine
whether the 4-R Act could have been enacted pursuant to
some other valid exercise of Congressional power such that
we may still retain jurisdiction over claims against the
States. See id. at 8. However, I conclude that there is no
such power granted under the Constitution and hence I
cannot agree that Congress could have validly enacted the
4-R Act pursuant to section five, the enforcement provision
of the Equal Protection Clause of the Fourteenth
Amendment.

The 4-R Act explicitly prohibits conduct by State and
local authorities which "unreasonably burden[s] and
discriminate[s] against interstate commerce . . . ." 49
U.S.C.A. S 11501. The purpose of the 4-R Act was to
"provide the means to rehabilitate and maintain the
physical facilities, improve the operations and structure,
and restore the financial stability of the railway system of
the United States." Burlington Northern R.R. Co. v.
Oklahoma Tax Comm'n, 481 U.S. 454, 457 (1987). The
policy behind the 4-R Act, memorialized at 49 U.S.C.A.
S 10101 (West 1997), describes the commercial and
economic objectives aimed at unburdening interstate
commerce by strengthening the rail transport infrastructure

                               19
of this country through competition and the free market. It
is only with respect to the realization of these economic
aims which proscribe predatory pricing, that any mention is
made of prohibiting discrimination.2

Unlike the majority, I cannot conclude that Congress can
validly invoke its enforcement powers under sectionfive of
the Fourteenth Amendment merely because the word
"discrimination" appears within the statutory text. The
Congressional enforcement power under section five is not
unlimited. See City of Boerne v. Flores, ___ U.S. ___, 117 S.
Ct. 2157, 2163 (1997).3 Enactments legislated pursuant to
Congress' section five enforcement power must be remedial
in nature, designed to prevent constitutional infraction. See
id.

In Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996),
a pre-Flores case, the Sixth Circuit addressed whether acts
legislated pursuant to Congress' commerce powers can be
upheld as legitimately enforcing the Equal Protection
Clause under section five of the Fourteenth Amendment
after Seminole Tribe. The court concluded that legislation
enforcing the Equal Protection Clause only extends to that
"class of persons that Fourteenth Amendment
jurisprudence has already identified as deserving special
protection." Id. at 210. In light of Flores, the Sixth Circuit's
holding in Wilson-Jones properly recognized that
_________________________________________________________________

2. Section 10101 states, in pertinent part:

       In regulating the railroad industry, it is the policy of the United
       States Government--

       (12) to prohibit predatory pricing and practices, to avoid undue
       concentrations of market power, and to prohibit unlawful
       discrimination.

49 U.S.C.A. S 10101(12) (emphasis added).

3. In Flores, the Supreme Court held that the Religious Freedom
Restoration Act ("RFRA") was unconstitutional because its enactment
exceeded Congress' enforcement power under sectionfive of the
Fourteenth Amendment. Instead of remedying or preventing
constitutional infringements, the Court concluded that RFRA altered the
meaning the Free Exercise Clause, thereby exceeding Congress'
legitimate exercise of its section five power.

                               20
enactments construed as enforcing the Equal Protection
clause must remedy or prevent constitutional infringements.

Similarly, in CSX Transportation v. Board of Public Works,
___ F.3d ___, No. 97-1296, 1998 WL 100394 (4th Cir. Mar.
10, 1998), a post-Flores opinion, the Fourth Circuit
indicated that the district court held -- as I would -- that
the 4-R Act could not be enacted under the sectionfive
power of the Fourteenth Amendment, as "the major
purpose of the 4-R Act in general [is] to protect interstate
commerce." Id. at 2.4 Accordingly, the district court
dismissed a challenge by two railroads for the assessment
of illegally assessed taxes under the 4-R Act for lack of
subject matter jurisdiction in light of Seminole Tribe.5

By enacting the 4-R Act, Congress was not legislating to
prevent unconstitutional behavior. There is no evidence
that the discriminatory taxation which Congress intended
to prohibit under the 4-R Act ever rose to the level of a
constitutional violation such that the railroads were
deprived of their right to equal protection. See, e.g.,
Nashville Chattanooga & St. Louis Ry. v. Browning, 310
U.S. 362 (1940) (holding that higher tax burden placed
upon railroad property did not violate the Equal Protection
Clause). Without such evidence, we have no basis to
conclude that Congress had the power to enact the 4-R Act
pursuant to its enforcement power under the Fourteenth
Amendment. See Flores, 117 S. Ct. at 2169.

Thus, although the court in Wilson-Jones opined in a
footnote that its conclusion might differ had "Congress
made findings that a particular group needed legal
protection to remedy some sort of invidious discrimination
not addressed by federal precedent," 99 F.3d at 210 n.4,
Congress has not made such findings in this case. Hence,
the majority's rejection of Wilson-Jones despite its reliance
upon this footnote is ill-founded as a justification to uphold
_________________________________________________________________

4. I have been unable to directly access the district court opinion, as it
is unavailable on either Westlaw or Lexis.

5. The Fourth Circuit reversed, however, on the basis that the district
court had jurisdiction over State officials under the doctrine of Ex Parte
Young. I discuss the Fourth Circuit's opinion in CSX Transportation infra
at 10 n.9, 18.

                               21
jurisdiction over the 4-R Act. See Majority Op. at 9.
Nowhere in the 4-R Act can a Congressional expression be
found that the 4-R Act was passed "to secure the rights
under the Fourteenth Amendment." Katzenbach v. Morgan,
384 U.S. 641, 652 (1966).

In fact, the majority implicitly concedes this point by
reference to the following passage from Alabama Great
Southern Railroad Company v. Eagerton, 663 F.2d 1036
(11th Cir. 1981):

       Until this law was passed . . . states could
       constitutionally classify railroads differently from all
       other taxpayers for the impositions of state taxes
       without violating the equal protection clause[sic] of the
       Fourteenth Amendment. It was the obvious purpose of
       Congress to put an end to this practice, where such
       treatment of the railroads as a class was
       discriminatory in effect.

Id. at 1040 (emphasis added); see Majority Op. at 8. Thus,
the majority acknowledges that prior to the passage of the
4-R Act disparate classifications concerning railroads for
taxation purposes were constitutional and did not violate the
Equal Protection Clause. Indeed, this was well-settled law.
See Browning, 310 U.S. at 369 ("so far as the Federal
Constitution is concerned, a state can put railroad property
into one pigeonhole and other property into another . . .").
Nevertheless, the majority now apparently characterizes
such classifications as unconstitutional, sufficient to
warrant congressional enactment of the 4-R Act under the
Fourteenth Amendment Equal Protection Clause. From
Flores, we learn that "Congress does not enforce a
constitutional right by changing what the right is." 117 S.
Ct. at 2164. Congress cannot make constitutional
classifications unconstitutional, even though it can make
such classifications unlawful. That is precisely what the
4-R Act did: it prohibited long-standing constitutionally
permissible discriminatory taxation practices. It did not --
indeed, could not -- make such discrimination
unconstitutional.

Furthermore, the majority's analysis regarding the
"findings" that Congress made that could support the

                               22
enactment of the instant legislation under the section five
power is both flawed and untenable. The legislative history
and judicial recognition referencing discrimination cannot
transform what was admittedly a constitutionally
permissible classification into an impermissible one. That
railroads were "easy prey" which were subjected to higher
rates of taxation than other taxable entities does not lead to
the inescapable conclusion that the discrimination that the
railroads suffered -- the disparate classification for taxation
purposes -- rose to unconstitutional proportions. The
majority has not pointed to any evidence that could support
the conclusion that the disparate taxation to which
railroads were subjected constituted a violation under the
Equal Protection Clause, and as I have mentioned above,
Congress made no explicit findings, as Flores instructs
must be done. See Flores, 117 S. Ct. at 2169. The mere fact
that the railroads were permissibly discriminated against
for taxation purposes is insufficient. Disparate tax
classifications concerning railroads were long-standing:

       That the states may classify property for taxation; may
       set up different modes of assessment, valuation and
       collection; may tax some kinds of property at higher
       rates than others; and in making all these
       differentiations may treat railroads and other utilities
       with that separateness which their distinctive
       characteristics and functions in society make
       appropriate -- these are among the commonplaces of
       taxation and of constitutional law.

Browning, 310 U.S. at 368.

As no constitutional infraction has been shown, there is
no issue to address concerning whether the sectionfive
enforcement power can be employed to abrogate the States'
sovereign immunity. More importantly, as there is no
constitutional violation to remedy, interpreting S 11501 as
the majority has is out of proportion to its remedial
objective. "There must be a congruence and proportionality
between the injury to be prevented or remedied and the
means adopted to that end. Lacking such a connection,
legislation may become substantive in operation and effect."
Flores, 117 S. Ct. at 2164. Quite simply, there can be no
congruence between the injury sought to be prevented in

                               23
this case and the sustaining of S 11501 under the
Fourteenth Amendment section five enforcement power,
because the injury involved in this case is simply not a
constitutional injury.

Accordingly, after Seminole Tribe, and in the absence of
any other legitimate constitutional grant of power, the
Congressional intent to abrogate the States' sovereign
immunity under the 4-R Act cannot be upheld as enacted
pursuant to a valid exercise of power.6 See also Mills v.
State of Maine, 118 F.3d 37 (1st Cir. 1997) (rejecting
section five of the Fourteenth Amendment as a means to
retain federal jurisdiction over FLSA claim against the State
in post-Seminole Tribe context).

In addition to Flores, other recent holdings from our
court also support my position that the 4-R Act cannot be
upheld as a valid enactment pursuant to the section five
enforcement power. See In re: Sacred Heart Hosp., 133 F.3d
237 (3d Cir. 1998);7 College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 131 F.3d 353 (3d Cir.
1997).8 While I acknowledge that these cases do not
_________________________________________________________________

6. This, of course, does not mean that the statute, itself, is
unconstitutional. Rather, it simply means that federal courts are without
jurisdiction to adjudicate such claims against the States because the
Eleventh Amendment proscribes them.

7. In Sacred Heart, we addressed the constitutionality of S 106(a) of the
Bankruptcy Code, 11 U.S.C. S 106(a), which purports to abrogate state
sovereign immunity in bankruptcy proceedings, in a post-Seminole Tribe
context. As the Bankruptcy Clause is an Article I power, see U.S. Const.
art. I, S 8, cl. 4, we held that it could not sustain an enactment
abrogating a state's sovereign immunity after Seminole Tribe. In
considering whether S 106(a) could have been properly enacted pursuant
to section five of the Fourteenth Amendment, we held that there was no
evidence to support such a construction. Accordingly, we concluded that
S 106(a) was unconstitutional as it was not enacted pursuant to a
legitimate exercise of Congressional power.

8. In College Savings Bank, we considered whether the district court
properly dismissed a claim against the State of Florida brought under
the Trademark Remedy Clarification Act of 1992 ("TRCA") for want of
subject matter jurisdiction after Seminole Tribe. In affirming, we held
that on the facts of that case jurisdiction could not be upheld pursuant
to the section five power as a means to enforce the Due Process Clause
of the Fourteenth Amendment as no protected property right was at
issue.

                               24
concern railroads or the 4-R Act, they form the crux of the
analysis which must obtain where an act legislated
pursuant to some other congressional power, such as the
commerce clause, is examined for whether it can be upheld
as a valid enactment under the section five power.

The majority finds no incompatibility between its holding
and the holdings of the aforementioned cases largely
because of the different subject matters involved and
"section 11501's legislative history and judicially recognized
anti-discrimination purpose." Majority Op. at 10. In each of
those cases, however, and contrary to the conclusion which
the majority reaches, the respective courts held that such
legislation could not be validly enacted pursuant to the
section five power. Furthermore, as I have indicated above,
the discrimination referenced in S 11501's legislative history
and by various courts does not, by itself, render the
discrimination the 4-R Act intends to prevent
unconstitutional discrimination subject to enforcement
under the section five power of the Fourteenth Amendment.
The majority's view of the test for validity under section five
of the Fourteenth Amendment is so permissive, "it is
difficult to conceive of a principle that would limit
congressional power." Flores, 117 S. Ct. at 2168.

Thus, I cannot join the majority of this panel in holding
that this court retains subject matter jurisdiction over
Wheeling's 4-R Act claims against the Commission.
Notwithstanding that conclusion, Wheeling's claim for
prospective declaratory and injunctive relief still survives
against the individual Commissioners under the doctrine of
Ex Parte Young -- a subject not addressed by the majority.
See CSX Transp., Inc. v. Board of Public Works, ___ F.3d
___, No. 97-1296, 1998 WL 100394 (4th Cir. Mar. 10, 1998);9
Majority Op. at 7 n.7.
_________________________________________________________________

9. Like the case before us, CSX Transportation v. Board of Public Works,
___ F.3d ___, No. 97-1296, 1998 WL 100394 (4th Cir. Mar. 10, 1998),
involved a challenge by two railroads to a tax levied in violation of the
4-R Act. The district court dismissed the case for want of subject matter
jurisdiction in light of Seminole Tribe, see supra at 4-5, but found no
basis for jurisdiction over state officials under Ex Parte Young. While
not
addressing whether the 4-R Act could be properly enacted pursuant to

                               25
II.

A.

The district court held that the assessment levied against
Wheeling for three (3) percent of the construction costs and
for fifteen (15) percent of the future maintenance costs of
the bridge constituted not only a tax under 49 S 11501(b)(4),10
but a discriminatory tax. I discuss the discriminatory
character of the tax in Section II(B), infra.

A tax "raises money, contribute[s] to a general fund, and
[is] spent for the benefit of the entire community." San Juan
Cellular Tel. Co. v. Public Serv. Comm'n, 967 F.2d 683, 685
(1st Cir. 1992). By contrast, a fee is imposed for regulatory
purposes generally by an entity upon those who are subject
to its regulation. When it is unclear whether an assessment
is a tax or a fee, courts

       emphasize the revenue's ultimate use, asking whether
       it provides a general benefit to the public, of a sort
       often financed by a general tax, or whether it provides
_________________________________________________________________

the section five power of the Fourteenth Amendment, the Fourth Circuit
reversed, holding that the members of the Board of Public Works could
be enjoined from the collection of such illegal taxes under the doctrine
of Ex Parte Young. Indeed, the Fourth Circuit resolved the issue of
improperly assessed taxes not yet paid -- an issue which I have pointed
out but have left open for this court to decide at a later time. See infra
at 18. Hence, the analysis of the Fourth Circuit adopted in CSX
Transportation coincides with my own in this case.

10. Section 11501(b)(4) states:

        (b) The following acts unreasonably burden and discriminate
        against interstate commerce, and a State, subdivision of a State,
or
        authority acting for a State or subdivision of a State may not do
any
        of them:

        . . .

         (4) Impose another tax that discriminates against a rail carrier
        providing transportation subject to the jurisdiction of the Board
under
        this part.

49 U.S.C.A. S 11501(b)(4) (West 1997).

                                  26
       more narrow benefits to regulated companies or defrays
       the agency's costs of regulation.

Id. (emphasis added). Support for this distinction between
taxes and regulatory fees is found in the Head Money
Cases, 112 U.S. 580 (1984), and Union Pacific Railroad
Company v. Public Utilities Commission, 899 F.2d 854 (9th
Cir. 1990), another case brought under the 4-R Act.

In those cases, the courts reasoned that the assessments
in question were used to finance the cost of the regulatory
programs regulating the immigration and railroad
industries, respectively. Therefore, the benefits from these
regulatory programs did not inure to the public-at-large but
only to the regulated industries. Accordingly, they did not
constitute taxes.

Thus, the majority's reliance upon these cases as
authority which would authorize the assessments made in
the instant case is misplaced. Those cases do no more than
hold that monies used for the benefit of the particular
industry do not necessarily benefit the public in general,
and thus cannot be deemed "taxes."

Here, considering the ultimate use of the monies
assessed by the Commission, I can only conclude-- as did
the district court -- that the assessments in question are a
tax which benefits the general public which uses the
bridge. Unlike a regulatory fee which would provide specific
benefits to Wheeling, the revenue from the instant
assessments was earmarked for a highway bridge that,
once repaired, would provide a general benefit to the public
at large.

It must be kept in mind that Wheeling's tracks are not
laid upon the bridge in question. Rather, Wheeling's tracks
run under the very bridge for which Wheeling has been
assessed and for which it is required to pay future
maintenance charges. Wheeling has been running its trains
under the bridge throughout the duration of the period that
the bridge has been closed.

In its amendment to the complaint before the
Commission, Scott Township conceded that the
construction and repair of the highway bridge was for the

                                27
benefit of the general public, not the railroads. Scott
Township alleged:

       (4)(d) That the present design of the "Crooked Bridge"
       is dangerous and not conducive to meeting the needs
       of the Township and travelling [sic] public in the area.

       . . .

       (5)(e) That the bridge above [Wheeling] be replaced
       with one designed to meet the needs of the Township
       and travelling [sic] public.

Amend. to Compl. at 2-3 (emphasis added). These
averments -- made by Scott Township -- are revealing.
They disclose that the Township intended to repair the
bridge (which as the record establishes, provides no benefit
for Wheeling) not for the benefit of Wheeling but only for
that of the general public.

The testimony of Patricia Wodnicki, the former manager/
secretary of Scott Township, supports this fact as well. At
her deposition, Wodnicki testified that the bridge for which
the assessment was imposed upon Wheeling had been
closed by 1982. See Dep. Patricia Wodnicki at 7 (Dec. 11,
1995).11 Notwithstanding that the bridge had been closed by
1982, there is no contention that interference had been had
with Wheeling's railroad operations or that Wheeling's
operations had been interrupted or impacted upon as a
result of the bridge's condition. In fact, the Commission's
Administrative Law Judge found that:

       If the highway is permanently closed and the bridge
       demolished, [Wheeling's] operations will not be affected.
       The proposed improvement will not result in any
       changes to [Wheeling's] operations nor will it provide
       [Wheeling] with any additional revenues.

Findings of Fact and Conclusions of Law (May 27, 1994).
Furthermore, the repair of the bridge does not implicate
any regulatory program regulating Wheeling's activities.
Accordingly, because the assessment and maintenance
_________________________________________________________________

11. The Amendment to Complaint and excerpts from the deposition of
Patricia Wodnicki were submitted to the court by a letter dated
September 12, 1997, after oral argument, upon the request of the court.

                               28
charges benefit only the general public and not specifically
Wheeling, I conclude that the assessment levied upon
Wheeling constituted a tax.

I believe the majority's reasoning which relies upon
National Railroad Passenger Corporation v. Pennsylvania
Public Utility Commission, 848 F.2d 436 (3d Cir.
1988)("Amtrak"), and Septa v. Pennsylvania Public Utility
Commission, 826 F. Supp. 1506 (E.D. Pa. 1993) ("Septa"),
aff 'd 27 F.3d 558 (3d Cir. 1994) (unpublished table
decision), to identify when an assessment is a tax, is flawed.12
Those cases arise in a context different from the context of
this appeal. Both cases involve a Congressional statute
which exempted the railroad from any "taxes or other fees"
imposed by any state. No definition of "taxes" or "fees" was
furnished in either court's holding that a special
assessment to pay for the construction and maintenance of
identified bridges could not be charged against the
railroads. Thus, their analyses cannot assist us in
distinguishing between a tax which should be borne by the
general public and a regulatory fee properly imposed upon
a carrier, because the statutory framework of those two
cases exempted the railroad from both taxes and fees. I
therefore read these cases and their discussions and
holdings to be inapposite.

B.

Because the majority has held that Scott Township's
assessment does not constitute a tax, it has not addressed
the issue of whether the tax is discriminatory. To determine
whether this tax discriminates against Wheeling under
S 11501, we must compare the effect of the tax upon a
certain "comparison class" of other taxpayers.

Our sister courts in Atchison, Topeka & Santa Fe Railway
_________________________________________________________________

12. Significantly, two cases on which the majority relies and which I find
inapposite held that under a Congressional exemption statute, railroads
could not be assessed construction and maintenance costs. See National
R.R. Passenger Corp. v. Pennsylvania Pub. Util. Comm'n, 848 F.2d 436
(3d Cir. 1988); Septa v. Pennsylvania Pub. Util. Comm'n, 826 F. Supp.
1506 (E.D. Pa. 1993).

                               29
Company v. Arizona, 78 F.3d 438 (9th Cir 1996), and
Kansas City Railway Company v. McNamara, 817 F.2d 368
(8th Cir. 1987), have held that the comparison class to
which a railroad such as Wheeling should be compared is
that of "other commercial and industrial taxpayers." 78
F.3d at 441; 817 F.2d at 375. The Commission argues that
because it has only limited jurisdiction to assess costs to a
small group of entities that it would be inappropriate to
compare its assessment on Wheeling to a class of all
commercial and industrial taxpayers. Although we have yet
to decide this issue, and as I have pointed out, the majority
has not addressed it, I believe that the approach adopted by
our sister courts in Atchison and Kansas City provides a
logical and sensible rule of law.

If the comparison class were only those entities which
were also taxed by the Commission, there would seldom, if
ever, be any finding of discriminatory taxation. In Kansas
City the court explained that

       [t]he only simple 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. A large group
       of local taxpayers will have the political and economic
       power to protect itself against an unfair distribution of
       the tax burden.

817 F.2d at 375.

Given that I would adopt as the comparison class the
group of commercial and industrial taxpayers, I must
conclude that the tax at issue against Wheeling is a
discriminatory tax. None of the parties disputes that
industrial and commercial taxpayers were not subjected to
the tax assessment for the repair and reconstruction of the
highway bridge. As a result, I would affirm the district
court's ruling of discrimination as well.

III.

Wheeling seeks both declaratory and injunctive relief. As
I would hold that after the Supreme Court decided Seminole
Tribe, this court no longer has subject matter jurisdiction
over the 4-R Act to hear cases involving the Commission, I

                                30
am obliged to address the issue of whether the individual
Commissioners may be sued under the doctrine of Ex Parte
Young, 209 U.S. 123 (1908). As I have noted, the majority
has not dealt with this issue. See supra at 8-9.

The doctrine of Ex Parte Young permits suits against
state officials acting in their official capacity --
notwithstanding the States' immunity under the Eleventh
Amendment -- if the suit seeks prospective declaratory
and/or injunctive relief. It does not allow suits for
retrospective relief. See Edelman v. Jordan, 415 U.S. 651
(1974).

Wheeling has not yet paid the discriminatory taxes it was
assessed regarding the construction of the bridge. Wheeling
thus contends that it is seeking prospective relief because
the assessment would have to be paid in the future. In
addition, Wheeling asserts that because the future
maintenance costs have not yet been assessed, the relief it
requests is prospective in nature. By contrast, the
Commissioners claim that the Commission's order
assessing costs to Wheeling became final when Wheeling
appealed the Commission's order. The Commissioners
argue that if this court were to grant Wheeling relief, we
would have to hold the Commission's order -- a past act --
invalid, and that such would be contrary to Eleventh
Amendment doctrine.

The issue of prospectivity is a difficult one. I have no
problem holding that Wheeling is entitled to the prospective
declaratory and injunctive relief concerning the future
maintenance costs. Although the tax liability has already
been determined, the Commissioners have not yet assessed
those taxes. Accordingly, this court would merely be
enjoining the state actors from assessing future taxes, and
that would fall comfortably within the Ex Parte Young
doctrine.

With respect to the taxes assessed against Wheeling for
the construction of the bridge, however, the prospectivity
issue is less clear, and I am troubled by the Commission's
claim that there is no remedy or relief available to Wheeling
for the construction assessment made against it, despite
Wheeling's consistent and continual challenge to that
assessment as a discriminatory tax.

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Since we have heard oral argument, the Fourth Circuit
has directly addressed this issue in CSX Transportation, Inc.
v. Board of Public Works, ___ F.3d ___, No. 97-1296, 1998
WL 100394 (4th Cir. Mar. 10, 1998). Upholding jurisdiction
over state officials under the Ex Parte Young doctrine, the
Fourth Circuit held that "[a]n injunction against the future
collection of the illegal taxes, even those that already have
been assessed, is prospective, and therefore available under
the Ex parte Young [sic] doctrine." Id. at 3 (emphasis
added). "The point is that the future collection[of the taxes]
is illegal." Id. at 6. Thus, under CSX Transportation, it is
within the power of the court to enjoin as prospective relief
improperly assessed -- though not yet paid -- taxes.

As I am in dissent and my opinion on the issue of
prospectivity is without precedential authority, I leave the
resolution of this issue for another day. Nevertheless, I
would be inclined to hold that Eleventh Amendment
doctrine would permit relief where a mere assessment
without payment of the charge has occurred -- as it has
here -- and the Fourth Circuit has led the way by holding
so in CSX Transportation.

IV.

In sum, I disagree with the majority's opinion in its
entirety.

I would hold that this court is without subject matter
jurisdiction to hear suits against the Commission after
Seminole Tribe. Nonetheless, Wheeling would be entitled to
prospective declaratory and injunctive relief under the
doctrine of Ex Parte Young.

I would also hold that the assessment against Wheeling
is a tax because it is for the general benefit of the public,
and not for the narrow benefit of the railroad or to achieve
some regulatory purpose.

I would further hold that the tax is discriminatory
because the comparison class of commercial and industrial
taxpayers was not assessed the tax for construction or
future maintenance costs.

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Finally, I would hold that Wheeling is entitled to
prospective declaratory and injunctive relief from any
assessment relating to the future maintenance costs of the
bridge, although as I have indicated above, I do not decide
at this time whether relief from the Commission's order
levying the cost of construction of the bridge to Wheeling
constitutes prospective or retrospective relief.

I therefore respectfully dissent from the majority's
holdings.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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