Gunderson v. BNSF Railway Company

Filing 33

ORDER denying 24 Motion to Certify Interlocutory Appeal (Written Opinion). Signed by Judge Patrick J. Schiltz on July 28, 2014. (CLG)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
PAUL GUNDERSON,

Case No. 14-CV-0223 (PJS/JJG)

Plaintiff,
v.

ORDER

BNSF RAILWAY COMPANY,
Defendant.

Christopher J. Moreland and Fredric A. Bremseth, BREMSETH LAW FIRM, P.C., for
plaintiff.
Sally J. Ferguson and Lee A. Miller, ARTHUR CHAPMAN KETTERING SMETAK &
PIKALA, P.A.; Jacqueline M. Holmes and Joanne R. Bush, JONES DAY, for defendant.
Plaintiff Paul Gunderson is a former employee of defendant BNSF Railway Company
(“BNSF”). Gunderson brings this action under the whistleblower provision of the Federal Rail
Safety Act (“FRSA”), 49 U.S.C. § 20109, alleging that he was harassed and terminated from his
job in retaliation for reporting safety violations and filing a personal-injury report. BNSF moved
to dismiss this action on the ground that Gunderson waived his right to bring it by continuing to
pursue the administrative process even after he acquired the right to file a civil action. The Court
denied that motion, and BNSF now moves the Court to certify its order for interlocutory appeal
under 28 U.S.C. § 1292(b).
“Permission to allow interlocutory appeals should . . . be granted sparingly and with
discrimination.” Union Cnty., Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008)
(citation and quotations omitted). To certify an interlocutory appeal under § 1292(b), the Court
must find, among other things, that its order “involves a controlling question of law as to which
there is substantial ground for difference of opinion . . . .”

Although the Court remains sympathetic to BNSF’s predicament, the Court does not
believe that this case meets this high standard. No court has ever agreed with BNSF that
continuing to pursue the administrative process after acquiring the right to file a civil action
under § 20109(d)(3) results in a waiver of that right. To the contrary, as the Court noted in its
opinion, it appears to be rather commonplace for a plaintiff to file a civil case after pursuing the
administrative process almost to its conclusion. Moreover, the Court is hard-pressed to explain
how Gunderson could have intentionally waived a known right when not a single judicial
opinion gave him reasonable notice that his conduct would result in such a waiver. Finally, this
is a garden-variety employment case that does not warrant the extraordinary relief of an
interlocutory appeal. It is true that it is possible — although, in the Court’s view, unlikely —
that an immediate appeal will terminate this litigation. But the parties have already engaged in
discovery and an evidentiary hearing, and thus should not have much left to do to prepare this
case for trial.
For these reasons, the Court denies BNSF’s motion.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT defendant’s motion to certify for interlocutory appeal [ECF
No. 24] is DENIED.
Dated: July 28, 2014

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

-2-