SHORT v. SPRINGFIELD TERMINAL RAILWAY COMPANY
Filing
14
DECISION AND ORDER ON MOTIONS TO DISMISS denying 7 Motion to Dismiss By JUDGE D. BROCK HORNBY. (jib)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DONALD DiMAURO,
PLAINTIFF
V.
SPRINGFIELD TERMINAL
RAILWAY COMPANY,
DEFENDANT
RICHARD PRINCIPATO,
PLAINTIFF
V.
SPRINGFIELD TERMINAL
RAILWAY COMPANY,
DEFENDANT
DEREK SHORT,
PLAINTIFF
V.
SPRINGFIELD TERMINAL
RAILWAY COMPANY,
DEFENDANT
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL NO. 2:16-CV-71-DBH
CIVIL NO. 2:16-CV-73-DBH
CIVIL NO. 2:16-CV-74-DBH
DECISION AND ORDER ON MOTIONS TO DISMISS
Congress passed the Federal Railway Safety Act (FRSA) to protect railroad
employee whistle-blowers.
49 U.S.C. § 20109.
Its primary enforcement
mechanism is through administrative proceedings before the Department of
Labor (here OSHA), with appeal to the circuit court of appeals. But the statute
also has a “kickout provision,” providing that if the Secretary of Labor does not
take final action within 210 days, the railroad worker can file suit in federal
district court against his employer.1 The statute does not specify a time limit for
the right to file suit in federal district court, so long as the administrative
complaint was timely filed. The timeliness issue in these three cases arises from
the fact that an interim regulation required the workers to notify the Department
of Labor that they planned to file a federal district lawsuit before they actually
filed suit. When they did so, a Supervising Investigator promptly “dismissed”
their administrative complaints, even before the lawsuits were filed.
The
defendant railroad argues that, thirty days later, that “dismissal” became the
final decision of the Secretary of Labor defeating the ability to use the kickout
provision, and therefore moves to dismiss all three cases. I DENY the motions.2
The Department of Labor explicitly recognized this in its commentary in developing final
regulations. 80 Fed. Reg. 69,119 (Nov. 9, 2015).
2 The regulation was recently changed and, effective November 9, 2015, no longer has the prior
notification requirement, but requires only that the railroad worker file an administrative notice
within seven days after filing a federal lawsuit. See 29 CFR § 1982.114 (2016):
(a) If there is no final order of the Secretary, 210 days have passed since the filing
of the complaint, and there is no showing that there has been delay due to the
bad faith of the complainant, the complainant may bring an action at law or
equity for de novo review in the appropriate district court of the United States
....
(b) . . .
(c) Within 7 days after filing a complaint in federal court, a complainant must file
with the Assistant Secretary, the ALJ, or the ARB, a copy of the file-stamped
complaint.
See also 80 Fed. Reg. 69,131 (Nov. 9, 2015) (“OSHA eliminated the requirement in the interim
final rule that complainants provide the agency 15 days advance notice before filing a de novo
complaint in district court. Instead, this section now provides that within seven days after filing
a complaint in district court, a complainant must provide a file-stamped copy of the complaint
to the Assistant Secretary, the ALJ, or the ARB . . . . This provision is necessary to notify the
agency that the complainant has opted to file a complaint in district court,” and “is necessary to
avoid unnecessary expenditure of agency resources once a complainant has decided to remove
the complaint to federal district court.”). If the current regulation had been in effect at the time
1
2
ANALYSIS
Several cases have dealt with what happens when an employee starts the
administrative complaint proceedings, continues to pursue them after the 210
days have passed, then receives an administrative outcome he does not like and,
instead of appealing to the circuit court of appeals as the statute contemplates,
tries to start his lawsuit in a federal district court.
Generally courts have
concluded that to allow such district court lawsuits would thwart the statutory
purpose that the Department of Labor should decide these cases with judicial
review in the circuit courts of appeals. Therefore, if the worker pursues his
administrative remedy to a final decision on the merits, even after the 210 days,
courts have ruled that he must pursue his judicial review in the court of appeals,
not in a new lawsuit in federal district court. In Mullen v. Norfolk S. Ry. Co., No.
2:14-cv-917, 2015 WL 3457493 (W.D. Pa. May 29, 2015), for example, a railroad
worker timely filed his administrative complaint, the Secretary issued written
findings, and the plaintiff filed objections and requested an Administrative Law
Judge (ALJ) hearing.
The 210-day period lapsed thereafter, but the parties
continued with extensive discovery in the ALJ proceeding, engaged in a 4-day
evidentiary hearing, and received a 19-page single-spaced ALJ decision adverse
to the plaintiff. Id. at *1-2. The plaintiff then filed a Petition for Review with the
Administrative Review Board (ARB) and received a briefing schedule. Id. at *2.
Only then did he file a notice of intent to proceed in federal district court. Id. at
these plaintiffs decided to go to federal district court, the issue now before me would not have
arisen because they would have filed their lawsuits first and then notified the Department of
Labor.
3
*3. The ARB next issued an Order to Show Cause why it should not dismiss his
complaint and the plaintiff did not respond to the Order. Id. at *2. As a result,
the ARB issued a “Final Decision and Order Dismissing Complaint,” which was
after the 210 days had passed.
Id.
The Mullen court found the plaintiff’s
argument that, because of the kickout provision, he should still be able to file
his complaint in federal district court “particularly troubling where, as here, a
plaintiff receives an unfavorable (yet merits-based) decision from an ALJ, appeals
to the ARB, ignores a show cause order, obtains a dismissal order and attempts
to relitigate his claim as if nothing occurred at the administrative level. The
statute could not have been intended to permit this outlandish result.” Id. at
*11. Therefore, the district court found that it had no jurisdiction over Mullen’s
complaint. Id.
Lebron v. Am. Int’l Grp, Inc., No. 09 Civ. 4285(SAS), 2009 WL 3364039
(S.D.N.Y. Oct. 19, 2009), was a retaliation case under the Sarbanes-Oxley Act,
which has a 180-day kickout provision, and incorporates the same Department
of Labor OSHA whistleblower provisions for retaliation complaints that apply to
railroad workers. Another one of those whistleblower provisions states that if a
plaintiff fails to object to the Secretary’s preliminary findings and to request a
hearing within 30 days, “the preliminary order shall be deemed a final order that
is not subject to judicial review.” 49 U.S.C. § 42121(b)(2)(A). In Lebron, the
plaintiff timely filed an administrative complaint and received preliminary
findings adverse to him and an order dismissing his complaint, all within the
180 days. 2009 WL 3364039 at *1-2. But he failed both to object and to properly
4
request a hearing. Id. at *2. As a result, the preliminary findings became a final
order after the 180-day kickout period lapsed and before the plaintiff filed his
federal district court lawsuit. Id. at *5. The Lebron court found the two statutory
provisions (the 180-day kickout provision and the final-order-not-subject-tojudicial-review provision) in tension.
Id. at *5-6.
It resolved the tension by
declaring: “[I]f the Secretary does not issue a final order within 180 days of the
filing of the administrative complaint, the complainant has thirty days from
receiving a preliminary order to either file a claim in a district court or appeal
the preliminary order to the ALJ and thereby preserve the option to file a district
court claim at a later time.” Id. at *6. But if the complainant takes no action
within 30 days, “the preliminary order becomes final and the district court no
longer has jurisdiction to review the claims de novo.” Id. Accord Groncki v. AT
& T Mobility LLC, 640 F. Supp.2d 50 (D.D.C. 2009) (no federal district court relief
available where plaintiff’s administrative complaint dismissed, ALJ hearing
conducted, ALJ dismissal thereafter became final after the 180-day kickout
period passed, but no appeal taken from the ALJ dismissal); Levi v. AnheuserBusch Co. Inc., No. 08-398-CV-W-RED, 2008 WL 4816668 at *3 n.3 (W.D. Mo.
2008) (same; semble), aff’d per curiam, 360 Fed. Appx. 708 (8th Cir. 2010).
These three cases before me are different.3
The Department of Labor
issued no final decision within the 210 days after the timely administrative
complaints and, as far as the record discloses, no decision at all. There was no
I recount the facts from the allegations of the Complaints and the exhibits the parties have
attached. The parties have not objected to each other’s exhibits.
3
5
involvement by an ALJ or an ARB.4 Instead, after the 210 days had passed, the
workers notified the Department of Labor—as they were required to do under the
regulation at that time—that they were electing to pursue their remedies in
federal district court.5 As a result, a Supervising Investigator for the regional
OSHA Whistleblower Protection Program sent each of them a letter saying that
“[a]s a result of your decision to proceed with your case in Federal District Court,
rather than the Secretary of Labor, your complaint before this office is hereby
dismissed.” DiMauro Ex. B. (ECF No. 8); Principato Ex. A (ECF No. 7); Short Ex.
A (ECF No. 7).6 (In one case (Short) the “dismissal” issued the same day as the
complainant’s notice that he planned to file in federal district court; in a second
case (Principato) the day after; and in the third case (DiMauro) a week later.) The
railroad argues that thirty days after the letters notifying the workers that their
claims were dismissed, the dismissals became final decisions of the Secretary of
Labor that could be challenged only in the circuit court of appeals, and that the
workers then became unable to file their claims in federal district court.
The parties agree that no investigation was ever completed.
29 CFR § 1982.114 (2015); see also 75 Fed. Reg. 53,533 (Aug. 31, 2010).
6 According to the Whistleblower Investigations Manual (Manual) attached as Ex. No. 1 to each
of the respective plaintiffs’ Responses to the motion to dismiss, there is a Regional Administrator
and, depending on the Region, an Area Director, a Regional Supervisory Investigator, or a Team
Leader for investigators. Manual at 1-9. Dismissing complaints is not listed among the
Supervisor’s duties. Id. at 1-10. One of the listed tasks for investigators is “[c]omposing draft
Secretary’s Findings for review by the area director, supervisor or team leader,” id. at 1-11, and
in a different section there is reference to dismissal of “untimely complaints,” id. at 2-19. There
is also reference in another section to an investigator’s early dismissal of a complaint if it fails to
satisfy the prima facie standard. Id. at 3-15. Chapter IV on “Case Disposition” provides: “For
recommendations to dismiss, the RA or his or her designee must issue Secretary’s Findings to
the complainant . . . . The letter must include the rationale for the decision and the necessary
information regarding the parties’ rights to object or to appeal, as appropriate . . . ” Id. at 4-3.
None of these provisions fits what happened in these three cases.
4
5
6
When a worker files an administrative complaint and waits for the
Secretary of Labor to make a decision even after the 210-day kickout period has
passed, it makes sense to hold the complainant to his decision to await the
administrative decision and the circuit judicial review channels that the statute
makes available thereafter.
Indeed, the Secretary has made clear—in the
explanations of the regulations—that the Secretary adopts that position:
In the Secretary’s view, the right to seek de novo review in
district court under these provisions terminates when the
Secretary issues a final decision, even if the date of the final
decision is more than 210 days after the filing of the
complaint. The purpose of these “kick-out” provisions is to
aid the complainant in receiving a prompt decision. That goal
is not implicated in a situation where the complainant
already has received a final decision from the Secretary.
80 Fed. Reg. 69,130 (Nov. 9, 2015). I agree with the courts that have reached
such a conclusion.
But when, in the absence of any administrative decision, a worker notifies
the Department of Labor that he has run out of patience and plans to file suit in
federal district court (because the interim regulation required him to do so), the
fact that a Supervising Investigator says “Okay, we will dismiss your claim before
us,” should not be treated as a “final decision” by the Department of Labor, even
thirty days thereafter.7 Accord Glista v. Norfolk Southern Ry. Co., Civ. No. 1304668, 2014 WL 1123374 (E.D. Pa. Mar. 21, 2014) (finding district court
jurisdiction because no final decision on the merits by the Secretary after appeal
This case is unlike Jordan Hosp., Inc. v. Shalala, 276 F.3d 72, 77 (1st Cir. 2002), a Medicare
Act case where “the regulations offer[ed] the right to appeal either a Board ‘decision’ on the
merits, or a ‘dismissal’ for untimeliness, to the Administrator.” Under those circumstances, the
First Circuit ruled that “there is no basis for any distinction between the terms ‘dismissal’ and
‘decision.’” Id. No such regulation or language applies here.
7
7
of OSHA findings to ALJ, stay of ALJ hearing pending attempted mediation,
notice of intent to proceed in federal district court filed by the plaintiffs, ALJ
issuance of order to show cause why the claims should not be dismissed, no
response by the plaintiffs, and then ALJ dismissal of complaint).
The statute and the regulations do not contemplate the sort of dismissal
that the Supervising Investigator entered here:
When a complaint is properly filed with the Secretary, there is first an
evaluation whether it “makes a prima facie showing,” 49 U.S.C.
§ 42121(b)(2)(B)(i)8; 29 C.F.R. § 1982.104(e)(1).
Otherwise it is
dismissed. Id. That is not what happened here.
If the administrative complaint passes the prima facie hurdle, an
investigation ensues and the Secretary determines whether there is
reasonable cause to believe that the complaint has merit. 49 U.S.C.
§ 42121(b)(2)(A). That is accomplished through written findings by the
Assistant Secretary. 29 C.F.R. § 1982.105(a). If the decision is adverse
to the plaintiff, “the Assistant Secretary will notify the parties of that
finding.” 29 C.F.R. § 1982.105(a)(2). The complainant then has thirty
days to object and request a hearing, failing which it becomes a final
order not subject to judicial review.
49 U.S.C. § 42121(b)(2)(A); 29
C.F.R. § 1982.106(a),(b). That, too, is not what happened here.9
This is a statutory provision for airline employees that is made applicable to railroad employees
by 49 U.S.C. § 20109(d)(2).
9 In Chapter 5, “Documentation and Secretary’s Findings,” the Manual provides that complaints
“that are either untimely or do not present a prima facie allegation, may not be ‘screened out’ or
closed administratively. Complaints filed . . . must be docketed and a written determination
8
8
After a hearing, the Secretary issues “a final order providing the relief
prescribed . . . or denying the complaint.” 49 U.S.C. § 42121(b)(3)(A).
That final order can be appealed to the circuit court of appeals. Id. at
§ 42121(b)(4); 29 C.F.R. § 1982.112(a). That, too, is not what happened
here.
To be sure, there is a statutory omission in failing to provide a limitations
period for the worker to file his district court lawsuit, but the omission is not
supplied by taking an administrative closing of the case, adding thirty days to
call it an administrative decision, and then telling the worker “Sorry, you are out
of luck.” Obviously the workers could not appeal their case closings to the circuit
court of appeals—there were no findings or legal conclusions to appeal!
The defendant railroad seems to fear that this outcome gives a railroad
worker an “unlimited right to file suit years after his complaint was dismissed”
or to “wait an indefinite period before actually filing suit.” Reply at 4. (ECF No.
13). First, I note that with the new final regulation this issue should not recur
because a worker will file his federal lawsuit first (after 210 days without action
by the Secretary)10 and a subsequent dismissal by the Supervising Investigator
will not affect the date limitations.
Second, a substantive decision by the
Secretary will automatically set the time limits in motion.11
issued, unless the complainant, having received an explanation of the situation, withdraws the
complaint.” Id. at 5-1.
10 See note 2 supra.
11 It is also possible that 28 U.S.C. § 1658(a) provides a limitation period, although one federal
district court ruled recently that it is inapplicable and that so long as the Secretary has not taken
action on the administrative complaint, a railroad worker can file a federal district court lawsuit
regardless of how long the Secretary has delayed. Despain v. BNSF Railway Company, CV-15-
9
I rule only that when the Department of Labor has not taken action within
the 210 days, the worker notifies the Department of Labor that he will proceed
in district court, and a Supervising Investigator then notifies the worker that as
a result the Department of Labor will dismiss his claim, there is no thirty-day
appeal period applicable whose passage results in the dismissal becoming a final
Department of Labor decision that can be reviewed only in the court of appeals.
The motions to dismiss are DENIED in all three cases.
SO ORDERED.
DATED THIS 20TH DAY OF MAY, 2016
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
8294-PCT-NVW, 2016 WL 2770144 (D. Ariz. May 13, 2016) (“the court action is available as long
as, and only as long as, the agency fails to reach a final decision.” Id. at *5). In any event, these
three lawsuits were all filed well within any limitations period that might be applicable.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?