Solis v. Union Pacific Railroad Company

Filing 25

MEMORANDUM DECISION AND ORDER denying 2 MOTION for Preliminary Injunction. This case shall be DISMISSED as the Court has determined it lacks jurisdiction. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

HILDA L. SOLIS, Secretary of Labor,
Case No. 4:12-cv-00394-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.

INTRODUCTION
Plaintiff, the United States Secretary of Labor, has applied for a preliminary
injunction to enforce the Secretary’s preliminary order requiring Union Pacific Railroad
Company to reinstate one of its employees (Dkt. 2). The Court concludes it lacks
jurisdiction to enforce this order. It will therefore deny the Secretary’s motion and
dismiss her complaint.
BACKGROUND
Gennese Annen worked as a train conductor for Union Pacific in Pocatello, Idaho.
She was fired in May 2010, allegedly because she reported a workplace safety hazard and

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requested medical attention following a workplace injury. Union Pacific says Annen lied
about being injured on the job.
According to the complaint, Annen injured herself on May 3, 2010, as she left a
locomotive cab. She says her bag caught on the side of the doorframe, and that this
twisted her to the side. She felt a twinge in her side, but it subsided so she went home.
Later in the day, however, Annen reported that the pain worsened and she needed
medical attention. She attempted to contact railroad officials before going to the doctor,
but was unable to reach anyone. She went ahead and visited a couple of local clinics, and
ultimately got a prescription for pain medication. Railroad personnel contacted her,
however, and instructed her not to take the medication until she took a drug test. She
waited and took the test, which was negative.
Annen returned to work a few days later and was fired within a couple weeks.
Union Pacific contends Annen violated company rules by (1) failing to immediately
report her injury, (2) failing to report a potential defective condition (the locomotive
doorframe) and (3) lying about how the injury occurred.
Annen appealed her termination and took her case to arbitration. The arbitrator
ultimately upheld Union Pacific’s decision. But in July 2010, while her grievance was
pending before the arbitrator, Annen brought an enforcement action under the Federal
Railroad Safety Act (FRSA). OSHA investigators met with Union Pacific
Representatives four times – twice in December 2010, and twice in March 2011. In
August 2011, OSHA issued its initial decision and, four months later, in December 2011,
OSHA issued a preliminary reinstatement order. The Secretary of Labor filed this action
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roughly eight months later, in August 2012. She asks this Court to enforce her
preliminary reinstatement order.
ANALYSIS
Union Pacific argues that federal district courts lack jurisdiction to enforce the
Secretary’s preliminary reinstatement orders under the Federal Railroad Safety Act. The
Court agrees.
The Federal Railroad Safety Act does not provide its own rules and procedures
governing enforcement actions. It imports them from anther act – the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century, or the “AIR21 Act.”
Specifically, the Federal Railroad Safety Act provides that enforcement actions “shall be
governed under the rules and procedures set forth in section 42121(b) . . . .” 49 U.S.C.
§ 20109(d)(2)(A).
Within § 42121(b), sub-section (5) provides that the Secretary may file a civil
action in district court “[w]henever any person has failed to comply with an order issued
under paragraph (3) . . . .” An “order issued under paragraph (3)” refers to final orders,
given that sub-paragraph (b)(3) is titled “Final order.” Further, within § 42121, Congress
used the language “order issued under paragraph (3)” or similar language, to refer to
final – not preliminary – orders. For example, AIR21 provides that aggrieved parties
may appeal an “order issued under paragraph (3)” to a federal circuit court of appeals.
See 49 U.S.C. § 42121(b)(4). It also provides that the Secretary must assess costs and
expenses against the losing party after “such an order is issued under this paragraph” (i.e.,
the final-order paragraph). In both of these contexts – an appeal and a costs award –
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Congress was referring final orders only – not preliminary orders, which are addressed in
subparagraph (b)(2). Thus, in paragraph (b)(5), when Congress said that the Secretary
may sue in federal district court “[w]henever any person has failed to comply with an
order issued under paragraph (3)” it meant final orders only – not preliminary orders.
Congress easily could have included preliminary orders by including orders “issued
under paragraph (2).”
The Secretary nonetheless urges the Court to treat a preliminary order issued under
(b)(2) just like a final order issued under (b)(3). To support this argument, the Secretary
points out that preliminary orders under AIR21 prescribe the same relief as final orders.
As stated in sub-section (b)(2)(A),
[i]f the Secretary of Labor concludes that there is a reasonable cause to
believe that a violation of subsection (a) has occurred, the Secretary shall
accompany the Secretary’s findings with a preliminary order providing the
relief prescribed by paragraph (3)(B).
49 U.S.C. § 42121(b)(2)(A) (emphasis added). Paragraph (3)(B) describes the remedies
included in a final order – including reinstatement orders. See 49 U.S.C.
§ 42121(b)(3)(B)(ii).
The few courts addressing this issue disagree as to whether preliminary and final
orders should be treated the same for federal jurisdictional purposes. Some find
jurisdiction to enforce preliminary orders and others do not. Compare Solis v. Tenn.
Commerce Bancorp, 713 F. Supp. 2d 701, 712 (M.D. Tenn. 2010) (finding jurisdiction)
with Welch v. Cardinal Bankshares Corp. 454 F. Supp. 2d 552, 556 (W.D. Va. 2006),
vacated, appeal dismissed (4th Cir. Feb. 20, 2008) (finding no jurisdiction).

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The Ninth Circuit has yet to address this issue. To date, the only circuit authority
is the Second Circuit’s decision in Bechtel v. Competitive Technologies, Inc., 448 F.3d
469 (2d Cir. 2006). But the Bechtel panel did not agree on much. Judge Jacobs, writing
the lead opinion, concluded that AIR21 did not confer judicial enforcement power over
preliminary reinstatement orders and thus held that the complaint should be dismissed.
Id. at 475. Judge Leval concurred in the result, but he did not reach the jurisdictional
question; he assumed jurisdiction and found that the due process requirements were not
satisfied. Id. at 476. Judge Straub, dissenting, concluded that the district court did have
jurisdiction to enforce a preliminary reinstatement order. Id. at 490.
This Court concludes that AIR21 does not empower federal district courts to
enforce preliminary reinstatement orders. First, the fact that a preliminary order can
prescribe the same relief as a final order does not mean Congress intended for federal
courts to review preliminary orders. Although the relief may be the same, Congress did
not indicate that preliminary and final orders should be treated the same for federal
jurisdictional purposes. In this respect, the Court agrees with this observation by Judge
Jacobs:
It seems improbable that Congress would have chosen to confer federal
judicial enforcement power over preliminary orders by indirection and
opacity when it easily could have modified the jurisdictional provisions of
AIR21 – paragraph (b)(5) and subparagraph (b)(6)(A) – to encompass
subparagraph (b)(2)(A) [preliminary orders].
448 F.3d at 473.
The Secretary also argues that AIR21’s statutory scheme must logically include an
enforcement mechanism for preliminary orders. This argument is based on AIR21 subMEMORANDUM DECISION AND ORDER - 5

paragraph (b)(2)(A), which provides that objecting to a preliminary order will not “stay
any reinstatement remedy” in that order. 49 U.S.C. § 42121(b)(2)(A). The Secretary
concludes that if objecting to an order does not stay the order, then there must be an
enforcement mechanism.
The Court is not persuaded. It is unclear why Congress decided against allowing
the Secretary to enforce preliminary orders in federal court. But Congress may have
decided that a preliminary order – which is based only on a “reasonable cause to believe
the complaint has merit,” 49 U.S.C. § 42121(b)(2)(A), is too tentative for present
enforcement. See Bechtel, 448 F.3d at 474. Indeed, there is a “strong presumption that
judicial review will be available only when agency action becomes final, . . . .” Bells v.
New Jersey, 461 U.S. 773, 778 (1983). Nothing in the statutory language before the
Court overcomes this presumption.
For these reasons, the Court concludes that it lacks jurisdiction to enforce the
Secretary’s preliminary orders under the AIR21 Act.
The Secretary alternatively argues that if AIR21 does not provide federal
jurisdiction of this action, FRSA itself does. See Mot. Memo., at 12. As already
explained, FRSA expressly incorporated AIR21’s enforcement procedures, providing as
follows:
(iii) Civil actions to enforce. – If a person fails to comply with an
order issued by the Secretary of Labor pursuant to the procedures in
section 42121(b), the Secretary of Labor may bring a civil action to
enforce the order in the district court of the United States for the judicial
district in which the violation occurred, as set forth in 42121.
49 U.S.C. § 20109(d)(2)(A)(iii) (emphasis added).
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This language – and in particular the phrase, “an order issued by the Secretary of
Labor pursuant to the procedures in section 42121(b)” – appears broader than the
language in AIR21, which says that the Secretary may sue in district court when an
employer has failed to comply with “an order issued under paragraph (3)”, i.e., a final
order. So the Secretary’s argument that FRSA provides an independent enforcement
mechanism in district court has some persuasive force.
Ultimately, however, the Court is not convinced for two reasons. First, that last
phrase in the FRSA statute quoted above – “as set forth in 42121” – would seem to
incorporate, by reference, § 42121’s jurisdictional limit, and thereby preclude review of a
preliminary order.
But even more problematic is language used in another provision of FRSA, found
just a couple paragraphs later – § 20109(d)(4), relating to appeals. In this section,
Congress used the same language – “an order issued by the Secretary of Labor pursuant
to the procedures in section 42121(b)” – to refer to final orders. The full provision reads
as follows:
(4) Appeals. – Any person adversely affected or aggrieved by an order
issued pursuant to the procedures in section 42121(b), may obtain
review of the order in the United States court of appeals for the circuit
in which the violation, with respect to which the order was issued,
allegedly occurred or the circuit in which the complainant resided on the
date of such violation. The petition for review must be filed not later
than 60 days after the date of the issuance of the final order of the
Secretary of Labor. The review shall conform to chapter 7 of title 5. The
commencement of proceedings under this paragraph shall not, unless
ordered by the court, operate as a stay of the order.
49 U.S.C. § 20109(d)(4) (emphasis added).

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It seems obvious that Congress did not intend to set up a scheme where a party
could directly appeal a preliminary order to a circuit court of appeals. This is suggested
by the language requiring appeals be filed “not later than 60 days after the date of the
issuance of the final order of the Secretary of Labor.” Id. (emphasis added).
Moreover, it is a “normal rule of statutory construction that identical words used in
different parts of the same Act are intended to have the same meaning . . . .” Gustafson v.
Alloyd Co., 513 U.S. 561, 570 (1995) (internal quotation marks omitted). And the “close
proximity” of two statutory provisions “presents a classic case for application of the
normal rule of statutory construction that identical words used in different parts of the
same act are intended to have the same meaning.” Comm’r v. Lundy, 516 U.S. 235, 250
(1996) (internal quotation marks and citations omitted). Therefore, the meaning of the
phrase “an order issued pursuant to the procedures in section 42121(b)” in subsection
(d)(4) informs the Court’s interpretation of the same phrase in sub-section (d)(2)(A)(iii).
The Court determines that this language refers only to final orders. The Court therefore
lacks jurisdiction to enforce the Secretary’s preliminary order. 1

1

Given this ruling, the Court will not address parties’ remaining arguments.

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ORDER
IT IS ORDERED that:
Plaintiff’s Motion for a Preliminary Injunction is DENIED. This case shall be
DISMISSED as the Court has determined it lacks jurisdiction.

DATED: January 11, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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