Whistleblower Law Blog

Third Circuit District Courts Split on Kick-Out Actions Brought After Final Agency Decisions

The U.S. District Court for the Western District of Pennsylvania ruled that plaintiffs claiming retaliation under Federal Railroad Safety Act (FRSA) lose their right to sue in federal court when the Department of Labor (DOL) reaches a final decision in their action, even if that decision is reached more than 210 days after the DOL administrative complaint was filed.

This ruling creates a split among the Third Circuit’s district courts. Just last year, the U.S. District Court for the Eastern District of Pennsylvania found that the right to file a so-called “kick-out” action in federal court is triggered when a final administrative decision isn’t reached within 210 days, and that FRSA contains nothing that extinguishes that right if the DOL subsequently issues a final decision.

In Mullen v. Norfolk Southern, Harry Mullen alleged that the railroad wrongfully terminated his employment because he protested to his supervisors about violations of safety regulations. Mullen’s termination occurred on February 14, 2011. Mullen filed a whistleblower claim with the DOL’s Occupational Safety and Health Administration (OSHA) on April 28, 2011 under the FRSA, 49 U.S.C. § 20109.

The FRSA provides that railroads engaged in interstate commerce may not “discharge, demote, suspend, reprimand, or in any other way discriminate against an employee” for “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 FRSA allows employees who believe they have experienced such retaliation to file complaints with the Secretary of Labor within 180 days of the act of retaliation. 49 U.S.C. § 20109 (d))(1). Employees file these complaints with OSHA.

OSHA conducts an investigation and issues findings to which either party may object within 30 days, and request a hearing. If the complaint goes to a hearing before a DOL Administrative Law Judge (ALJ), the judge’s decision becomes final unless a party files a timely Petition for Review with the DOL’s Administrative Review Board (ARB). If the complaint is appealed to the ARB, its decision is final.

The judge in the Western District of Pennsylvania found that the United States Courts of Appeals retained exclusive jurisdiction to review an appeal from a final order of the Department of Labor issued under the FRSA. The FRSA includes a “kick-out” provision that states that, with respect to an enforcement action brought under § 20109(d)(1), the complainant may bring an original action in the appropriate district court of the United States if the Secretary of Labor has not issued a final decision within 210 days after the filing of the administrative complaint and the delay is not due to the bad faith of the complainant,.

In Mullen’s case, November 24, 2011 marked the 210-day milestone at which time he could have filed suit in federal district court under the kick-out provision. His matter before the ALJ proceeded through discovery and a hearing, including post-trial briefs. On April 30, 2013, the ALJ dismissed Mullen’s complaint. On May 10, 2013, Mullen filed a timely Petition for Review with the ARB. On July 9, 2013, the ARB issued a Final Decision and Order dismissing his complaint.

On October 30, 2013, Mullen filed a complaint in the Eastern District of Pennsylvania based on the same claims as his OSHA complaint. On February 7, 2014, Norfolk Southern filed a Motion to Dismiss for Lack of Jurisdiction and Improper Venue, and the case was ultimately transferred to the Western District on July 10, 2014. The judge in the Western District noted that the judge in the Eastern District had identified two issues: (1) whether the ARB’s July 9, 2013, Order was a final decision, and (2) whether a final decision issued more than 210 days after the administrative complaint was filed, but before filing in district court, prevented de novo review in district court.

The Eastern District judge concluded that the July 9, 2013 Order was “a routine and non-substantive closing of the administrative proceedings.” He declined to reach the second question, but he cited a 2014 Eastern District case (Glista), which had answered “no” to that question.

Citing Supreme Court and Third Circuit precedent, the Western District judge disagreed, concluding that the ARB’s Order was in fact a final decision of the Secretary of Labor. The Western District judge also concluded that the DOL process was intended to resolve claims brought under the FRSA unless the Secretary did not issue a timely order. The court held that to allow kick-out actions after DOL had reached a final decision, regardless of whether this decision was rendered before or after 210 days, allowed plaintiffs a “second bite of the apple.”

Thus, there is now a split within the Third Circuit on whether plaintiffs may bring kick-out actions under the FRSA in district court after final administrative decisions are rendered by the DOL more than 210 days after the filing of the original OSHA complaint.

The case in the Western District of Pennsylvania is Mullen v. Norfolk Southern, No. 2:14-cv-00917, 2015 WL 3457493 (W.D. Pa. May 29, 2015). The 2014 case in the Eastern District was Glista v. Norfolk Southern, No. 13-04668, 2014 WL 1123374 (E.D. Pa. March 21, 2014). The Mullen judge cited 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)) to support his position on the finality of the ARB decision.

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