The latest Federal Rail Safety Act district court decision confirms that the statutory jurisdiction of the federal courts over railroad whistleblower cases can not be limited by DOL regulations or actions.

After trackmen Donald Glista and William Orr reported injuries, Norfolk Southern Railway fired them for "conduct unbecoming" and for making "false and conflicting statements." For that blatant FRSA violation OSHA ordered Norfolk Southern to pay Glista $620,523 and Orr $297,985. The Railroad objected and pushed it up to the ALJ level. Before any ALJ trial was held, the workers filed a Notice of Intent to file in U.S. district court. Five weeks later the ALJ dismissed the complaint with prejudice, and then four weeks after that the workers actually filed their complaint in district court.

Norfolk moved to dismiss, arguing the ALJ’s dismissal was a "final" DOL order barring federal court jurisdiction. The district judge disagreed. Stressing "the FRSA is a remedial statute that should be liberally construed in order to protect the plaintiff employees," the Court held the "plaintiffs had a statutory right to remove their claim from the administrative process because the requisite 210 days had clearly elapsed."

The Court also held that OSHA’s 15 day notice regulation is not mandatory: "it is clear that failure to provide such notice is not a binding requirement, preclusive to exercising the right to de novo review or indicative of bad faith." This is consistent with the district court holding in Pfeifer v. Union Pacific Railroad Co.: "the FRSA statute contains no reference to a notice requirement, and thus the DOL regulation has no statutory basis in the law."

Bottom line? After 210 days, in the absence of a final decision on the merits by the DOL, an employee has an absolute statutory right to file in federal court with or without giving 15 day notice.  For the full decision in Glista and Orr v. Norfolk Southern Railway Co.,click here.  For a Summary of the FRSA,click here.  For free access to the Rail Whistleblower Library,click here.