Here’s a Miscellany of Federal Rail Safety Act items, ranging from the United States Supreme Court to how to file in federal district court to how to award attorney fees.
United States Supreme Court Cites Section 20109
Protecting whistleblowers has deep bipartisan support in Congress, and the United States Supreme Court also goes out of its way to protect whistleblowers. And true to form, the Supreme Court’s first reference to 49 USC Section 20109 bodes well for any FRSA whistleblower case that may wend its way to the nation’s highest court.
The cite comes in the Court’s recent decision in the SOX whistleblower case of Lawson v. FMR LLC. SOX is the Wall Street whistleblower statute that protects employees who blow the whistle on fraud affecting the stocks of publicly traded companies. The issue was whether the language of the SOX statute was broad enough to include employees of contractors to public companies.
Noting that SOX was modeled after the AIR-21 whistleblower statute protecting airline employees, the Supreme Court endorsed the broad remedial interpretation of AIR-21 and applied it to confirm the expansive scope of SOX. In a footnote, the Supreme Court stated: "For other provisions borrowing from AIR-21, see 49 U.S.C.. 20109, governing rail carriers, which incorporates AIR 21’s enforcement procedures." Lawson at fn.19.
So for those railroads who may be itching to challenge the FRSA in the Supreme Court, be careful what you wish for. There is no reason to think the result will be any different from the dope slapping the Circuit Courts have applied to every attempt by the railroads to undercut the FRSA.
Liberal Filing in Federal Court
The U.S. District Court decision in Pfeifer v. Union Pacific Railroad Co. illustrates the liberal filing standards applicable to FRSA cases.
OSHA found Union Pacific retaliated against Nick Pfeifer after he reported a rough track hazardous safety condition. Union Pacific objected and the case went to an ALJ bench trial. The ALJ ruled against Pfeifer and dismissed his FRSA complaint. Pfiefer petitioned for review by the ARB, and then filed for a jury trial in federal district court, but without first giving the DOL a15-Day Notice of Intent to file. Union Pacific filed a Motion to Dismiss in the district court, arguing the ALJ’s dismissal controlled and the lack of a 15-day Notice barred federal court jurisdiction.
District Judge Julie A. Robinson rejected both of the Railroad’s arguments. She held the DOL’s regulations asking for a 15-day Notice before filing in federal court is not binding:
the FRSA statute contains no reference to a notice requirement, and thus the DOL regulation has no statutory basis in the law. . . .The statute gives federal courts jurisdiction to hear whistleblower claims de novo under certain circumstances, and when those circumstances are met, the agency may not strip the courts jurisdiction by adding additional requirements. . . .The Court does not lack jurisdiction due to a lack of notice to the DOL.
As for the ALJ’s administrative dismissal, Judge Robinson held it had no effect on the federal court proceeding. For an employee to file "a protective appeal to the ARB to maintain his right of removal to federal court would not be indicative of bad faith." She noted that "administrative decisions that are not final decision do not have a res judicata effect," and "because Pfeifer has removed this action, as authorized by statute, the Secretary of Labor has not issued a final decision."
Bottom line? An ALJ’s non-final administrative dismissal does not bar an employee from filing in federal court for a jury trial without giving notice to the DOL first.
How To Figure Attorney Fee Awards
The Administrative Review Board and the Administrative Law Judge in the Bala v. PATH case have issued decisions outlining the criteria for determining a reasonable hourly rate for attorneys who successfully represent FRSA complainants. Factors include "location of counsel, his years of experience, the level of expertise, the complexity of the case, the risk of loss, delay in payment, and the amount of the award." In order to establish the appropriate prevailing market rate, counsel must submit "affidavits of other lawyers" and "evidence of the fees counsel received in cases of similar complexity." The ARB Decision and the ALJ decision should be read in conjunction with U.S. District Judge Arterton’s fee decision in Barati v. Metro North Railroad.
It is important to note that even if a rail worker’s FRSA economic award is minimal, his attorney still is entitled to an award based on the full amount of his time. For example, Bala’s economic award was only $1,101, but his attorney was awarded a fee based on 100% of his hours at $525 an hour, for a total fee award of $72,000. The public policy encouraging such fee awards is spelled out by the Second Circuit’s Decision in Millea v. Metro North Railroad.