MULLEN v. NORFOLK SOUTHERN RAILWAY COMPANY
Filing
45
MEMORANDUM OPINION AND ORDER OF COURT granting in part and denying in part 34 DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO ASSESS COSTS, and dismissing Plaintiff's Complaint without prejudice for lack of subject-matter jurisdiction. The Clerk shall mark this case CLOSED. Signed by Judge Terrence F. McVerry on 05/29/15. (mcp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HARRY MULLEN,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.
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)
)
) 2:14-cv-00917
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)
)
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)
)
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court is DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, TO ASSESS COSTS (ECF No. 34) filed by Defendant Norfolk Southern
Railway Company (“Norfolk Southern”).1 Plaintiff Harry Mullen opposes the motion. The
issues have been fully briefed and well-argued by the parties in their briefs (ECF Nos. 35, 41,
43), and the factual record has been fully-developed via their Concise Statements of Material
Facts (“CSMF”), appendices, exhibits, and Responsive Statement of Facts (“RSOF”) (ECF Nos.
36, 37, 40, 42). The Court heard oral argument on May 14, 2015. Accordingly, the motion is
ripe for disposition.
I.
Background
A. Administrative Proceedings
Plaintiff Harry Mullen alleges that Norfolk Southern wrongfully terminated his
employment after he had protested violations of safety regulations and raised concerns with his
supervisors while working as a trackman assigned to the Engineering Department, Pittsburgh
1. To be clear, Norfolk Southern’s motion seeks (1) the dismissal of (rather than judgment on) Mullen’s claim
because this Court is without subject-matter jurisdiction; (2) the entry of summary judgment in its favor based on
preclusion principles, as an alternative to dismissal; and/or (3) an assessment and award of costs, as an alternative to
summary judgment.
Division at Conway Yard. Following his termination on February 14, 2011, Mullen filed a
“whistleblower” claim with the United States Department of Labor, Occupational Safety and
Health Administration (“OSHA”) on April 28, 2011 against Norfolk Southern under the
employee protection provisions of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §
20109.2
After Mullen filed his complaint, the Secretary of Labor, acting through the Regional
Administrator for OSHA, Region III, in Philadelphia, Pennsylvania, conducted an investigation
and issued written findings on September 30, 2011 (the “Secretary’s Findings”). OSHA found
that, on February 13, 2011, Mullen and his supervisor disagreed about the need for a foreman to
work with the gang trackmen who were lubricating switches in the Conway Yard and that
Mullen refused to assume the role when offered the position. OSHA further found that Mullen
raised his concerns at a safety meeting the following day during which Mullen became
argumentative and insubordinate. As a result of his behavior, Norfolk Southern suspended and
ultimately terminated Mullen from his employment.
After Mullen acknowledged that his
conduct was inappropriate, Norfolk Southern agreed to convert his discipline to a three and onehalf month suspension and to reinstate his employment. According to OSHA, “there [was] no
evidence that [Mullen’s] discipline was motivated in any way by his protected activity, but rather
because of his disruptive behavior and insubordination.” Def.’s App’x Ex. 2, ECF No. 37-2 at 3.
On October 27, 2011, Mullen filed objections to the Secretary’s Findings and requested a
hearing before the Office of Administrative Law Judges. On November 11, 201, Mullen’s case
was assigned to the Honorable Richard A. Morgan, Administrative Law Judge (the “ALJ”), who
2. The record is not entirely clear regarding the date on which Mullen filed his claim with OSHA: a letter from
Mullen’s then-lawyer to OSHA, with the subject line “Complaint of Harry Mullen v. Norfolk Southern Railway Co
under the Federal Safety Act of 2007, 49 U.S.C. § 20109,” is dated March 11, 2011; however, the Secretary’s
Findings state that Mullen filed his complaint on April 28, 2011. Compare Defs.’ App’x Ex. 1 at 1, ECF No. 37-1
with Def.’s App’x Ex. 2 at 1, ECF No. 37-2.
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issued a Notice of Hearing and Pre-Hearing Order the same day. Notably, on November 24,
2011, the 210-day period following the filing of Mullen’s complaint elapsed (assuming the April
28, 2011 date is correct) at which time he could have “br[ought] an original action at law or
equity for de novo review in the appropriate district court of the United States” as the Secretary
had yet issued a final decision within the statutory timeframe. 49 U.S.C.A. § 20109(d)(3).
Mullen did not file a civil action at that time.
The parties instead advanced to discovery in the ALJ proceeding, which included
multiple depositions and the exchange of documentary evidence. Following discovery, the
parties participated in a four-day hearing before the ALJ in Pittsburgh, Pennsylvania. Mullen
was represented by two attorneys during the hearing, which lasted from June 26, 2012 through
June 29, 2012 and resulted in a 914-page transcript. Mullen presented seven witnesses as part of
his case-in-chief and had the opportunity to cross-examine each of the seven witnesses called by
Norfolk Southern. After the hearing, both parties filed post-trial briefs with the ALJ.
On April 30, 2013, the ALJ issued a thorough, nineteen page single-spaced Decision and
Order Dismissing the Complaint in which he made credibility determinations, findings of fact,
and conclusions of law adverse to Mullen. The ALJ weighed the competing testimony and found
that Mullen used profanity at the February 14, 2011 safety meeting (“Fuck safety”), continued to
vent his frustrations outside the meeting by insulting his co-workers (“You got these two fucking
idiots out here graphiting switches”), and then stepped toward a supervisor, pointed a finger in
his face, and accused him of dishonesty (“You’re lying, you’re a liar”). Def.’s App’x Ex. 8 at 9,
ECF No. 37-8. The ALJ also found and ruled that Norfolk Southern had established by clear and
convincing evidence that it removed Mullen from service and then imposed discipline “not
because of his safety concerns but rather because of the grossly inappropriate manner in which
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he raised them.” Id. at 18. Accordingly, the ALJ entered an order dismissing the complaint and
advised Mullen of his appellate rights.
On May 10, 2013, Mullen timely filed a Petition for Review with the Administrative
Review Board (the “ARB”). The ARB entered an order setting a briefing schedule six days later,
directing Mullen to file a supporting legal brief on or before June 10, 2013. Mullen did not file a
supporting legal brief with the ARB. Instead, on June 6, 2013, Millen filed with the ARB a
Notice of Intention to File Original Action in United States District Court (the “Notice of
Intent”). Mullen did not, however, file a district court complaint at that time.
On June 13, 2013, the ARB issued an Order to Show Cause in which in stated, in relevant
part, as follows: “Accordingly, we order the parties to SHOW CAUSE no later than June 24,
2013, why the Board should not dismiss Mullen’s claim pursuant to 29 C.F.R. § 1982.114.
Should the parties fail to timely reply to this Order, the Board may dismiss this claim without
further notice.” Def.’s App’x Ex. 12, at 2, ECF No. 37-12 (emphasis in original). Mullen did
not respond to the Order to Show Cause.3
On July 9, 2013, the ARB issued its “Final Decision and Order Dismissing Complaint.”
Def.’s App’x Ex. 13, ECF No. 37-13. In its Final Decision and Order, the ARB recounted the
procedural history of the matter and acknowledged that “[t]he Secretary of Labor has delegated
to the Board her authority to issue final agency decision.” Id. at 2. The ARB also reiterated that
“[t]he Board cautioned the parties that should they fail to timely respond to the Board’s Order
that ‘[it] may dismiss the claim without further notice.’”
Id.
The ARB then concluded:
“Accordingly, in accordance with 29 C.F.R. § 1982.114 and Mullen’s notification of his intent to
3. According to the ARB, “Norfolk Southern responded averring that it did not object to the dismissal with
prejudice of the Complainant’s complaint, but that it reserved the right ‘to contend in federal district court that
[Mullen’s] federal court complaint is barred by the doctrines of claim or issue preclusion, waiver, estoppel, failure to
exhaust remedies, or any other applicable legal doctrine.’” Def.’s App’x Ex. 13, at 2-3, ECF No. 37-13
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proceed in district court and given his failure to respond to the Board’s Order to Show Cause, we
DISMISS Mullen’s complaint. SO ORDERED.” Def.’s App’x Ex. 13, at 3, ECF No. 37-13
(emphasis in original). This suit followed.
B. District Court Proceedings
Mullen commenced this action by filing a Complaint in the United States District Court
for the Eastern District of Pennsylvania on October 30, 2013—113 days after the issuance of the
Secretary’s Final Decision and Order Dismissing Complaint—which was assigned to the
Honorable Michael M. Baylson.
In his Complaint, Mullen alleges that “he was illegally
dismissed by NSR in retaliation for having protested unsafe acts in violation of Federal rail
safety regulations, refused to commit the acts himself, and confronted managers as to their
violations of these regulations in a company safety meeting, where such problems are supposed
to be raised.” Pl.’s Compl. at 1, ECF No. 1. To be sure, the Complaint raises the exact same
alleged FRSA violation(s) that the parties fully litigated at the administrative level.
On February 7, 2014, Norfolk Southern filed a Motion to Dismiss for Lack of Jurisdiction
and Improper Venue, or in the Alternative, Transfer Venue. Mullen opposed the motion(s).
Judge Baylson denied the motion to dismiss but granted the alternative relief requested in an
April 8, 2014 Memorandum and Order, transferring this action to the United States District Court
for the Western District of Pennsylvania. (ECF Nos. 11, 12). On May 6, 2014, Norfolk
Southern moved for certification of the April 8, 2014 Order of Court for an interlocutory appeal
and for a stay pending the appeal. Judge Baylson denied the motion in a June 10, 2014
Memorandum and Order. (ECF Nos. 19, 20). The case was transferred to this Court on July 10,
2014.
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This Court held a Case Management Conference on October 7, 2014 at which Norfolk
Southern raised and the undersigned discussed with counsel whether it had subject-matter
jurisdiction. With the parties consent, the Court ultimately ordered briefing and heard oral
argument on this issue.
After careful consideration of the motion and the filings in support and opposition
thereto, the Court concludes that it does not have subject-matter jurisdiction. Thus, for the
reasons that follow, the Court will grant in part and deny in part Defendant’s motion and dismiss
the Complaint.
II.
Legal Standard4
A motion to dismiss pursuant to Rule 12(b)(1) contends that the district court lacks
subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Such a motion questions the court’s “very
power to hear the case” and is considered either “facial,” which attacks the complaint on its face,
or “factual,” which attacks subject matter jurisdiction as a matter of fact. Mortensen v. First.
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); see also Petruska v. Gannon Univ.,
462 F.3d 294, 302, n.3 (3d Cir. 2006).
“Facial attacks . . . contest the sufficiency of the pleadings, and the trial court must
accept the complaint’s allegations as true.” Common Cause v. Pennsylvania, 558 F.3d 249, 257
(3d Cir. 2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)).
The court’s review is limited to “the allegations on the face of the complaint . . . and any
4. Because the Court only reaches the preliminary question of whether it has subject-matter jurisdiction and
concludes that it does not, the undersigned will treat Defendant’s filing as a motion to dismiss and apply a Rule
12(b)(1) standard. See CNA v. United States, 535 F.3d 132, 140 (3d Cir. 2008); Fed. R. Civ. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also
10A THE LATE CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2713 (3d ed. Suppl. 2014)
(“[A]lthough some courts have entered summary judgment on jurisdictional grounds, the general rule is that it is
improper for a district court to enter a judgment under Rule 56 for defendant because of a lack of jurisdiction . . . .
The rationale for this conclusion, although somewhat metaphysical, is sound. If the court has no jurisdiction, it has
no power to enter a judgment on the merits and must dismiss the action.”) (internal citations omitted).
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documents referenced in the complaint, viewed in the light most favorable to the plaintiff.”
Church of the Universal Bhd. v. Farmington Twp. Supervisors, 296 F. App’x. 285, 288 (3d Cir.
2008) (citing Mortensen, 549 F.2d at 891; Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293,
300 (3d Cir. 2002)). A complaint under facial attack may be properly dismissed “only when the
claim ‘clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction
or . . . is wholly insubstantial and frivolous.’” Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406,
1408–09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
By comparison, “a factual challenge contends that a substantive defect prevents the court
from having subject-matter jurisdiction over a dispute, regardless of what allegations are made in
the complaint.”
U.S. Airline Pilots Ass’n v. U.S. Airways, Inc., 2:13-CV-0627, 2013 WL
5466838, at *2 (W.D. Pa. Sept. 30, 2013) (citing Petruska v. Gannon Univ., 462 F.3d 294, 302
n.3 (3d Cir. 2006)). Similarly, “if the attack is factual, no presumptive truthfulness attaches to
the complaint’s allegations and the court is free to weigh the evidence, including evidence
outside of the complaint, to determine whether it has the inherent power to hear the case.” Id.
(citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
III.
Discussion
In the United States District Court for the Eastern District of Pennsylvania, Judge
Baylson identified two issues: (1) “whether the ARB’s July 9, [2013] Order constituted a final
decision under the FRSA” and (2) “whether a final decision from the Secretary, issued more than
210 days after the filing of the administrative complaint but before the employee initiated a
federal action, prevents a district court from conducting a de novo review.” Mullen v. Norfolk S.
Ry. Co., No. CIV. 13-6348, 2014 WL 1370119, at *5 (E.D. Pa. Apr. 8, 2014). Answering the
first question, Judge Baylson concluded “that the July 9, 2013 Order is best viewed as a routine
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and non-substantive closing of the administrative proceedings in anticipation of Plaintiff’s
pursuit of his remedies in federal court.” Id. at *6. Judge Baylson declined to reach the second
question, although he noted that the “issue arose in a recent decision by another court in [the
Eastern District of Pennsylvania].” Id. at 7 (citing Glista v. Norfolk S. Ry. Co., No. CIV.A. 1304668, 2014 WL 1123374 (E.D. Pa. Mar. 21, 2014)). Norfolk Southern now asks this Court to
reconsider these questions.
The Court ordinarily would not revisit an issue already decided in a case by a different
judge of coordinate jurisdiction. In fact, “‘[t]he law of the case doctrine directs courts to refrain
from re-deciding issues that were resolved earlier in the litigation.’” In re W.R. Grace & Co.,
591 F.3d 164, 174 (3d Cir. 2009) (quoting Pub. Interest Research Group of N.J., Inc. v.
Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997)). And it applies “‘as much to the
decisions of a coordinate court in the same case as to a court’s own decisions.’” Pub. Interest
Research Grp. of New Jersey, Inc., 123 F.3d at 116 (quoting Christianson v. Colt Industries
Operating Corp., 486 U.S. 800, 816 (1988)); see also In re Pharmacy Benefit Managers
Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009) (“‘A court has the power to revisit prior
decisions of its own or of a coordinate court in any circumstance, although as a rule courts
should be loathe to do so in the absence of extraordinary circumstances such as where the initial
decision was clearly erroneous and would make a manifest injustice.’”) (quoting Christianson,
486 U.S. at 816).
At the same time, this judicially-created doctrine “‘is not a fixed rule that prevents a
federal court from determining the question of its own subject matter jurisdiction in a given
case.’” In re W.R. Grace & Co., 591 F.3d at 174 (quoting Baca v. King, 92 F.3d 1031, 1035
(10th Cir. 1996)); see also Pub. Interest Research Grp. of New Jersey, Inc., 123 F.3d at 116
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(“The law of the case doctrine does not limit a federal court’s power; rather, it directs its exercise
of discretion.”) (citing Arizona v. California, 460 U.S. 605, 619 (1983)). As our court of appeals
has reiterated:
The ultimate responsibility of the federal courts, at all levels, is to reach the
correct judgment under law. Though that obligation may be tempered at times by
concerns of finality and judicial economy, nowhere is it greater and more
unflagging than in the context of subject matter jurisdiction issues, which call into
question the very legitimacy of a court’s adjudicatory authority.
Council Tree Commc’ns, Inc. v. F.C.C., 503 F.3d 284, 292 (3d Cir. 2007) (quoting Am. Canoe
Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003)). Indeed, “federal courts have a
duty to examine their subject matter jurisdiction at all stages of the litigation.” Rose v. City of
Allentown, 211 F. App’x 133, 138 (3d Cir. 2007) (citing United States Express Lines Ltd. v.
Higgins, 281 F.3d 383, 388-89 (3d Cir. 2002)). This Court will, therefore, independently address
the issue of subject matter jurisdiction of this case.
A. Jurisdiction
Congress amended FRSA in 2007 to “establish[ ] employee protection provisions for
railroad carrier employees who engage in whistleblowing activities pertaining to railroad safety
or security (or, in circumstances covered by the statutes, employees perceived to have engaged or
to be about to engage in protected activity).”
Procedures for the Handling of Retaliation
Complaints Under the National Transit Systems Security Act and the Federal Railroad Safety
Act, 75 Fed. Reg. 53522-01, 53522 (August 31, 2010) (codified at 29 C.F.R. pt. 1982). Among
its provisions, FRSA now provides that “[a] railroad carrier engaged in interstate or foreign
commerce, or an officer or employee of such a railroad carrier, shall not discharge, demote,
suspend, reprimand, or in any other way discriminate against an employee” for engaging in
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certain protected activity enumerated in the statute such as “reporting, in good faith, a hazardous
safety or security condition.” 49 U.S.C. § 20109(b)(1)(A); see also id. § 20109(a)(1)(C).
“The 2007 amendments to FRSA also specifically eliminated the requirement that FRSA
complaints proceed through the RLA arbitration process, instead transferring authority to
investigate and adjudicate such complaints to the Secretary of Labor.” Norfolk S. Ry. Co. v.
Solis, 915 F. Supp. 2d 32, 38 (D.D.C. 2013) (citing Implementing Recommendations of the 9/11
Commission Act of 2007, Pub. L. No. 110-53, § 1521(c), 1221 Stat. 266, 446 (2007)); see also
Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 156 (3d Cir. 2013). Under the
newly-amended FRSA, “[a]n employee who alleges discharge, discipline, or other discrimination
in violation of [the statute]” may bring an enforcement action against the railroad carrier “by
filing a complaint with the Secretary of Labor.” 49 U.S.C. § 20109 (d))(1).
The procedures for adjudicating complaints under FRSA are detailed in regulations
promulgated by the Department of Labor, which set forth a three stage process: an investigation
by OSHA, which issues the Secretary’s Findings; followed by a hearing before and decision by
an ALJ; and then appellate review by the ARB. At each stage, the decision and order of the
tribunal can become a final, non-appealable order of the Secretary of Labor unless a party
exercises his or her right to timely appeal to the next administrative body.
Moreover, under the regulations, an employee claiming that he or she had been retaliated
against by an employer must file a complaint with OSHA within 180 days of the alleged
violation. 29 C.F.R. § 1982.103. OSHA then conducts an administrative investigation, 29
C.F.R. § 1982.104, after which it issues written findings and a preliminary order, 29 C.F.R. §
1982.105. The parties may thereafter file “any objections and/or a request for a hearing on the
record within 30 days of receipt of the findings and preliminary order;” if no party timely
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objects, “the findings or preliminary order will become the final decision of the Secretary, not
subject to judicial review.” 29 C.F.R. §§ 1982.106(a)-(b).
However, if a party objects to OSHA’s findings or preliminary order, “the Chief
Administrative Law Judge will promptly assign the case to a judge who will notify the parties,
by certified mail, of the day, time, and place of hearing,” which is to “commence expeditiously,
except upon a showing of good cause or unless otherwise agreed to by the parties.” 29 C.F.R. §
1982.107(b). Following the hearing, the ALJ shall issue a decision that “will contain appropriate
findings, conclusions, and an order.” 29 C.F.R. § 1982.109(a). The ALJ’s decision will then
“become the final order of the Secretary unless . . . a petition for review is timely filed with the
ARB and the ARB accepts the petition for review.” 29 C.F.R. § 1982.110(a).
If the ARB accepts the petition for review, its decision will constitute the final order of
the Secretary of Labor, which has delegated the authority to act and issue final decisions under
the employee protection provisions of the FRSA. Id. The ARB represents the highest level of
review within the Department of Labor, and the regulations provide for no further administrative
proceedings following its entry of a final order.
The United States Courts of Appeals retain exclusive jurisdiction to review an appeal
from a final order of the Department of Labor issued under this statutory and regulatory scheme.
See 49 U.S.C.A. § 20109(d)(4); 29 C.F.R. § 1982.112. An appeal must occur “[w]ithin 60 days
after the issuance of a final order under §§ 1982.109 and 1982.110” and may be filed “in the
United States Court of Appeals for the circuit in which the violation allegedly occurred or the
circuit in which the complainant resided on the date of the violation.” 29 C.F.R. § 1982.112.
FRSA includes a limited grant of jurisdiction to federal district courts in § 20109(d)(3),
known as the “kick-out” provision. See Lynch v. Union Pac. R. Co., No. 3:13-CV-2701-L, 2014
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WL 2519206 (N.D. Tex. June 4, 2014); see also 75 Fed. Reg. 53522-01, 53526. Section
20109(d)(3) provides that, with respect to an enforcement action brought under § 20109(d)(1),
if the Secretary of Labor has not issued a final decision within 210 days after the
filing of the complaint and if the delay is not due to the bad faith of the employee,
the employee may bring an original action at law or equity for de novo review in
the appropriate district court of the United States, which shall have jurisdiction
over such an action without regard to the amount in controversy, and which action
shall, at the request of either party to such action, be tried by the court with a jury.
See also 29 C.F.R. § 1982.114(a).5 The Department of Labor’s regulations further provide that
“[f]ifteen days in advance of filing a complaint in Federal court, a complainant must file with the
Assistant Secretary, the ALJ, or the ARB, depending upon where the proceeding is pending, a
notice of his or her intention to file such complaint.” 29 C.F.R. § 1982.114(b). With this
historical background, the Court now turns to the pending motion(s).
1. Final Decision
“The Supreme Court has specified that administrative orders are final when they mark the
‘consummation’ of the agency’s decision-making process, and when ‘rights or obligations have
been determined’ or when ‘legal consequences will flow’ from the decision.” Yusupov v.
Attorney Gen. of U.S., 518 F.3d 185, 195 (3d Cir. 2008) (quoting Bennett v. Spear, 520 U.S. 154,
177-78 (1997)).
Applying these considerations, the Court concludes that the ARB’s Final
Decision and Order was in fact a final decision of the Secretary.
5. The legislative history of the bill indicates that “[t]he Conference substitute adopt[ed] a modified version of the
Senate language” regarding “Railroad employee protections” for which there was no comparable House provision:
“It modifies the railroad carrier employee whistleblower provisions and expands the protected acts of employees . . .
. The language also provides for de novo review of a complaint in Federal District Court if the Department of Labor
does not timely issue an order related to the complaint.” H.R. CONF. REP. NO. 110-259, 348 (2007), reprinted in
2007 U.S.C.C.A.N. 119, 181; see also Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 157 n.3
(3d Cir. 2013) (detailing the legislative history of the bill) (citing Santiago v. Metro–North Commuter R.R. Co.,
ARB No. 10–147, slip op. at 12–14 (July 25, 2012) (decision and order of remand), available at
http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/FRS/10_147.FRSP.PDF; Norfolk S. Ry.
Co. v. Solis, 915 F. Supp. 2d 32, 43-44 (D.D.C. 2013)).
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The ARB’s July 9, 2013 Final Decision and Order had the legal effect of any other
dismissal order: it ended the administrative review process and left the ARB with nothing else to
decide. The ARB’s Final Decision and Order also determined Mullen’s rights with regard to
further pursuit of his administrative claim—i.e., that if not timely appealed, he could not further
pursue his FRSA complaint. Similarly, the ARB’s Final Decision and Order reiterated its earlier
admonishment that failure to respond to its order to show cause may result in dismissal, which
occurred in part because Mullen did not timely reply.
Moreover, there is no basis for the Court to reinterpret an administrative action of the
Secretary expressly designated as a final decision to be something else; speculation is not among
the relevant considerations. The Final Decision and Order says nothing of an “administrative
closing.” It also does not mention that its dismissal was a routine and non-substantive closing of
the administrative proceeding. Rather, the ARB’s Final Decision and Order expressly recognizes
the Secretary’s delegation of authority to the ARB to issue final agency decisions under the
FRSA. And the ARB did so in its July 9, 2013 filing. Accordingly, the Court will not secondguess the Secretary’s designation of its own order and will recognize the Final Decision and
Order as such.
2. De Novo Review
Under Mullen’s reading of the statute, a complainant may (fully) litigate a whistleblower
claim at the administrative level, obtain an adverse decision from the ALJ, file an appeal to the
ARB followed by a notice of intent to file an original action, ignore the ARB’s briefing schedule
and Order to Show Cause, and then bring suit for de novo review in a federal district court
months after the ARB issued its “Final Decision and Order Dismissing Complaint,” all of which
is consistent with Plaintiff’s view of FRSA: “[t]hat the Plaintiff gets two bites out of the apple.”
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Arg. Tr. at 32-33. From its perspective, Norfolk Southern argues that this sort of procedural
posturing “would completely undermine the finality of decisions reached through the DOL
adjudicative process” and that Mullen offers no limiting principle that would prevent a litigant
from seeking de novo review years after the Secretary disposed of a claim. Def’s Br. at 5, ECF
No. 35.
At least one district court has weighed in on the precise issue before this Court and
agreed with Mullen’s interpretation of FRSA. See Glista, 2014 WL 1123374, at *1.6 In Glista,
the plaintiffs brought suit under FRSA, after which OSHA conducted an investigation and
determined that there was probable cause to believe that Norfolk Southern unlawfully terminated
them in retaliation for reporting work-related injuries and seeking medical care. Id. at *1. The
parties both objected to OSHA’s findings and appealed its decision to an ALJ. Before a hearing
was held, the parties agreed to stay the proceedings and mediate the dispute. Id. Plaintiff later
filed with the ALJ a notice of intention to file an original action in a federal district court, and the
ALJ issued an order to show cause why the plaintiffs’ claims should not be dismissed. Plaintiffs
never responded to that order, and the ALJ dismissed their complaint with prejudice on July 16,
2013.7 On August 12, 2013, the plaintiffs filed suit in the United States District Court for the
Eastern District of Pennsylvania., which was assigned to the Honorable Thomas Newman
O’Neill Jr. Judge O’Neill ultimately concluded that § 20109(d)(3) “does not prevent de novo
review where the Secretary renders a final decision 210 days after an employee filed the
6. Other district courts have also rejected Norfolk Southern’s alternative argument(s), holding that FRSA
complainants had not waived or were not estopped from (re)-litigating a whistleblower retaliation action. See Lynch
v. Union Pac. R. Co., 24 F. Supp. 3d 597, 599-602 (N.D. Tex. 2014); Gunderson v. BNSF Ry. Co., 29 F. Supp. 3d
1259, 1261-64 (D. Minn. 2014); Pfeifer v. Union Pac. R. Co., No. 12-CV-2485-JAR-JPO, 2014 WL 2573326, at
**3-5 (D. Kan. June 9, 2014.)
7. Glista, his co-plaintiff, and Mullen were all represented by the same lawyer at the administrative level. Counsel
for Plaintiff who appeared before this Court on two occasions did not represent Mullen at the administrative level.
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administrative complaint but prior to the employee initiating a federal suit.” Mullen, 2014 WL
1370119, at *7 (citing Glista, 2014 WL 1123374, at *3).
In reaching this result, the Glista Court outlined three reasons for its decision. First, the
court found the plain meaning of the kick-out provision clear, and therefore, it declined to infer a
clause into the statute or defer to the Department of Labor’s commentary on its regulations:
It is the Secretary’s position that complainants may not initiate an action in
Federal court after 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 the “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. In addition, permitting the
complainant to file a new case in district court in such circumstances could
conflict with the parties’ rights to seek judicial review of the Secretary’s final
decision in the court of appeals.
See Glista, 2014 WL 1123374, at *3 (citing Procedures for the Handling of Retaliation
Complaints Under the National Transit Systems Security Act and the Federal Railroad Safety
Act, 75 Fed. Reg. 53522-01, 53526 (August 31, 2010) (codified at 29 C.F.R. pt. 1982)). As the
Glista Court reasoned, “[i]f Congress had intended to deny a plaintiff de novo review by the
federal district court in the event that a final decision was reached after the 210 day period had
expired such an exception would be explicit in this portion of the statute.” Glista, 2014 WL
1123374, at *3. Second, the Glista Court focused on the absence of any merits-based decision in
that case in rejecting Defendant’s argument “that permitting de novo review in this case would
create incongruity in the case law.” Id. at *5. To the Glista Court, “each of the[ ] scenarios
[presented by Defendant] describes circumstances wherein final administrative decisions are
based upon an opportunity to evaluate the merits of the claims or a claimant’s attempt to avoid
the administrative review process, neither of which is the case here.” Id. (emphasis added).
Third, (and relatedly) the Glista Court found that “[its] de novo review of plaintiffs’ claim does
15
not imperil administrative finality because the ALJ’s dismissal order was the result of only
plaintiffs’ failure to respond after filing their Notice of Intent rather than the ALJ’s evaluation of
the merits of their claims.” Id. at * 6. Accordingly, the Glista Court “[p]rioritize[d] the interest
of administrative fairness over a rigid interpretation of the technical requirements of the statute
and permit plaintiffs to obtain de novo review pursuant to the FRSA kick-out provision.” Id.
This Court respectfully disagrees with its colleague from the Eastern District of
Pennsylvania. Under the Glista Court’s rationale, a FRSA complainant always has the right to
file a de novo action in federal district court irrespective of what occurred at the administrative
level so long as the Secretary did not issue a “final decision” within 210 days after the
administrative complaint had been filed. Section 20109(d)(3) of Title 49 does not, however,
include an unlimited right to bring suit; rather, it states an “employee may bring an original
action at law or equity for de novo review in the appropriate district court” if the Secretary “has
not issued a final decision within 210 days after the filing of the complaint.” This limitation has
practical significance: the plaintiff may bring a de novo action at any point after the 210-day
interim period and until the Secretary issues a final decision.
Nowhere in the statute did
Congress authorize a de novo action so long as the Secretary did not issue a final decision within
210 days. To be sure, FRSA only includes a limited grant of jurisdiction to federal district
courts, which must be jealously guarded.
The Court also finds that Mullen’s reading of the statute undermines that limited grant of
jurisdiction, the statutory framework and regulatory scheme of FRSA and ignores the Secretary’s
commentary on its rules as well as the legislative history—all of which the undersigned may
consider. As the Court of Appeals for the Third Circuit has explained:
It is well-settled that “[t]he role of the courts in interpreting a statute is to give
effect to Congress's intent.” Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d
16
Cir. 2001). “When interpreting statutes or regulations, the first step is to
determine whether the language at issue has a plain and unambiguous meaning.”
Dobrek v. Phelan, 419 F.3d 259, 263 (3d Cir. 2005). “Because it is presumed the
Congress expresses its intent through the ordinary meaning of its language, every
exercise of statutory interpretation begins with an examination of the plain
language of the statute.” Rosenberg, 274 F.3d at 141. “[T]he plain meaning of
statutory language is often illuminated by considering not only the particular
statutory language at issue, but also the structure of the section in which the key
language is found, the design of the statute as a whole and its object . . . .” Alaka
v. Attorney General, 456 F.3d 88, 104 (3d Cir. 2006) (internal quotation marks
omitted); see also King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (“a
statute is to be read as a whole . . . since the meaning of statutory language, plain
or not, depends on context”); M.A. ex rel. E.S. v. State–Operated Sch. Dist. of
Newark, 344 F.3d 335, 348 (3d Cir. 2003) (holding that it would be a mistake to
“squint [ ] myopically” at the phrase in question and interpret it in isolation rather
than in the context of the “text and structure” of the statute as a whole). Where
the statutory language, on examination of “the language itself, the specific context
in which that language is used, and the broader context of the statute as a whole”
is plain and unambiguous, further inquiry is not required. Rosenberg, 274 F.3d at
141.
Register v. PNC Fin. Servs. Grp., Inc., 477 F.3d 56, 67 (3d Cir. 2007). Moreover, our court of
appeals has recently instructed:
Ordinarily, we look to the text of the statute, rather than the legislative history, to
interpret a statute or determine legislative intent as an aid to interpretation. See
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[C]ourts must
presume that a legislature says in a statute what it means and means in a statute
what it says there.”); In re Visteon Corp., 612 F.3d 210, 220 (3d Cir. 2010) (“It is
for Congress, not the courts, to enact legislation. When courts disregard the
language Congress has used in an unambiguous statute, they amend or repeal that
which Congress enacted into law.”); First Merchs. Acceptance Corp. v. J.C.
Bradford & Co., 198 F.3d 394, 402 (3d Cir. 1999). However, this rule of
statutory construction is not an inviolable commandment that we must blindly
enforce regardless of surrounding circumstances or the practical results of rigidly
applying the text to a given situation. Thus, we have made exceptions in rare
cases in which “the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.” First Merchs., 198 F.3d
at 402 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
“In such situations, ‘those intentions must be controlling.’” Id.
Thorpe v. Borough of Thorpe, 770 F.3d 255, 263 (3d Cir. 2014). “A court must therefore
interpret the statute as a symmetrical and coherent regulatory scheme and fit, if possible, all parts
17
into an harmonious whole.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000) (citations and internal quotation marks omitted).
Here, the statutory framework, regulatory scheme, the Secretary’s commentary on its
rules, and the Conference Report, when taken together, demonstrate that a private right of action
brought under FRSA was intended to be fully resolved through the Department of Labor’s
administrative process unless the Secretary did not timely issue an order related to a complaint.
Moreover, the framework is not an exhaustion requirement; it instead sets forth a comprehensive
scheme for the full adjudication of an employee’s claim: an investigation by OSHA, which
issues the Secretary’s Findings; followed by a hearing before and a decision by an ALJ; and then
an appeal to the ARB, with further review by the circuit courts of appeals. It also does not
permit—and it certainly was not intended to allow—a plaintiff an indeterminate “second bite of
the apple” in a federal district court simply because 210 days has passed, which is the
interpretation Mullen urges this Court to adopt. Mullen’s reading of the statute is 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. In sum, this Court agrees with Defendant that the
210-day kick-out provision was designed to protect a plaintiff from administrative delay rather
than to grant a claimant an unlimited right to bring a duplicative suit in a federal district court
even after an authorized final decision has been issued by the Secretary.
B. Remedy
Because the Court concludes that it lacks subject-matter jurisdiction, it will not and, in
fact, cannot reach the merits of Norfolk Southern’s preclusion claim. See In re Orthopedic
18
“Bone Screw” Products Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997) (“If a court then
determines that it lacks subject matter jurisdiction, it cannot decide the case on the merits. It has
no authority to do so.”). Nor can the Court order the dismissal of this action with prejudice as
Norfolk Southern requests. See Siravo v. Crown, Cork & Seal Co., 256 F. App’x 577, 580-81
(3d Cir. 2007) (“[W]e conclude that the District Court was correct to dismiss this case for lack of
subject-matter jurisdiction. However, it should not have done so with prejudice. Where a district
court lacks subject-matter jurisdiction, its disposition of such a case will . . . be without
prejudice.”) (emphasis and ellipses in original) (citations omitted). Accordingly, the Court will
dismiss Plaintiff’s Complaint without prejudice.
IV.
Conclusion
For the reasons hereinabove stated, the Court will grant in part and deny in part Norfolk
Southern’s motion. An appropriate Order follows.
McVerry, S.J.
19
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HARRY MULLEN,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.
)
)
)
) 2:14-cv-00917
)
)
)
)
)
)
ORDER OF COURT
AND NOW, this 29th day of May, 2015, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED and DECREED that the DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO ASSESS COSTS
(ECF No. 34) filed by Defendant Norfolk Southern Railway Company is GRANTED IN PART
AND DENIED IN PART, and Plaintiff’s Complaint is DISMISSED WITHOUT
PREJUDICE. The Clerk shall docket this case as CLOSED.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
cc:
James H. Kaster
Email: kaster@nka.com
David E. Schlesinger
Email: schlesinger@nka.com
Robert S. Hawkins
Email: robert.hawkins@bipc.com
Joseph P. Sirbak, II
Email: joseph.sirbak@bipc.com
Kathleen J. Goldman
Email: kathleen.goldman@bipc.com
(via CM/ECF)
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