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Guerra v. Consolidated Rail Corp. (Conrail)

United States Court of Appeals, Third Circuit

August 21, 2019

JOHN F. GUERRA, JR., Appellant

          Argued June 13, 2019

          On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-17-cv-06497) District Judge: Hon. Claire C. Cecchi

          Robert E. Myers Lawrence A. Katz [ARGUED] Coffey Kaye Myers & Olley Counsel for Appellant

          Robert S. Hawkins Joseph P. Sirbak, II [ARGUED] Cozen O'Connor Counsel for Appellee

          Before: HARDIMAN, PORTER, COWEN, Circuit Judges



         The Federal Railway Safety Act ("FRSA") provides that railroad carriers may not retaliate against employees who blow the whistle on certain safety violations. If a carrier breaks this rule, the aggrieved employee may seek relief by filing a complaint with the Occupational Safety and Health Administration ("OSHA") "not later than 180 days" after the alleged retaliation occurred. See 49 U.S.C. § 20109(d)(2)(A)(ii). The Secretary of Labor then has 210 days to issue a "final decision" on the matter. If the Secretary takes too long, "the employee may bring an original action … for de novo review in the appropriate district court of the United States." Id. § 20109(d)(3).

         This case asks whether FRSA's 180-day limitations period is "jurisdictional." That is, if an employee fails to file a timely complaint with OSHA, does that divest a district court of subject matter jurisdiction? Or is the limitations period simply a claim-processing rule, the breach of which may defeat an employee's claim, but not a district court's jurisdiction to hear the case?

         After considering the text, context, and history of the provision, and mindful of the Supreme Court's decisions in this area, we hold that FRSA's 180-day limitations period in 49 U.S.C. § 20109(d)(2)(A)(ii) is a nonjurisdictional claim-processing rule. The District Court assumed otherwise, but we will affirm the District Court's decision on other grounds.



         Congress enacted FRSA in 1970 "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. Ten years later, Congress added an anti-retaliation provision to the statute, protecting "employees who alerted authorities about a violation of federal safety regulations." Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 509 (6th Cir. 2015) (citing Pub. L. No. 96-423, § 10, 94 Stat. 1811 (1980)). Under the amended law, employees who thought themselves the victims of retaliation could seek relief through mandatory arbitration under the Railway Labor Act before the National Railroad Adjustment Board. Id. at 510. Except in narrow circumstances, the decision of the Adjustment Board was final and mostly unreviewable by courts. See Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94 (1978) ("Congress considered it essential to keep these so-called 'minor' disputes within the Adjustment Board and out of the courts." (citation omitted)).

         In 2007, Congress amended FRSA again, untangling its retaliation-dispute-resolution scheme from the Railway Labor Act and giving it to the Secretary of Labor, subject to expanded judicial oversight. See Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, § 1521, 121 Stat. 266 (2007). The point of this was to "expand the protections for railroad employees" and to "enhance employees' administrative and civil remedies." Perez, 778 F.3d at 510 (internal quotation marks and citation omitted).

         Today, FRSA and its accompanying regulations provide for a straightforward, multi-step adjudication process for retaliation complaints.

         First, if an employee thinks she has been wronged in violation of the Act, she must file a complaint with OSHA "not later than 180 days after the date on which the alleged violation … occurs." 49 U.S.C. § 20109(d)(2)(A)(ii), (d)(1); 29 C.F.R. §§ 1982.103-104.[1] OSHA will then investigate the claims and issue written findings and a preliminary order "as to whether or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of … FRSA." 29 C.F.R. §§ 1982.105(a), 1982.104.

         Second, any unsatisfied party may object to OSHA's findings or preliminary order within 30 days and request a hearing before an administrative law judge ("ALJ"). Id. § 1982.106.[2] The ALJ may conduct a hearing on the record and must issue a decision containing "appropriate findings, conclusions, and an order pertaining to … remedies." Id. § 1982.109(a); see id. § 1982.107(b).

         Third, within 14 days of the ALJ's decision, any party may petition for review from the Administrative Review Board ("ARB"). Id. § 1982.110(a). If the ARB accepts the case, it has 120 days to issue a final decision for the Secretary. Id. § 1982.110(c). If the ARB rejects a case, the ALJ's decision becomes the Secretary's final order. Id. § 1982.110(b).

         Finally, any person "adversely affected or aggrieved" by the Secretary's final decision as issued by the ARB[3] may, within 60 days, "obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such violation." 49 U.S.C. § 20109(d)(4).

         This process is what happens if the agency is expeditious. But if the agency takes too long to issue a final decision, FRSA provides a so-called "kick-out" option for claimants to seek "de novo review" in federal district court.

De novo review.-With respect to a complaint under paragraph (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.

Id. § 20109(d)(3). This kick-out provision and the 180-day limitations period are the focus of this case.


         John Guerra, Jr. worked as a conductor and brakeman for Consolidated Rail Corporation ("Conrail"). He alleges that, in late 2015, Conrail urged him to cut corners and ignore safety regulations to increase productivity. When he refused, Conrail threatened him and eliminated certain incidental perks of his job. Guerra reported this alleged retaliation to Conrail's compliance office, which told him that his complaints would be "handled in a confidential manner." App. 29. But Conrail did nothing to alleviate his concerns. Instead, he says, he was told that he needed to "play ball" with the company and that, if he kept reporting safety issues, there would be "undesirable consequences." App. 29-30. Likewise, in early 2016, Guerra filed six complaints about allegedly defective braking systems in two Conrail locomotives. Yet again, he says, the only response was that he needed to toe the company line for his own good.

         Shortly after that, a train Guerra was operating failed to brake properly and ran through a railroad switch. Conrail investigated the incident and, on April 6, 2016, notified Guerra that he would be suspended for 45 days. As Guerra tells it, a supervisor informed him this should "be a lesson to him" and that Guerra should "be more cooperative." App. 31.

         On May 10, 2016, Guerra's attorney, Lawrence Katz, allegedly "filed a FRSA complaint with the Secretary of Labor's Region II [OSHA] Whistleblower Office." Guerra v. Consol. Rail Corp., No. 17-cv-6497, 2018 WL 2947857, at *2 (D.N.J. June 13, 2018). Six months passed by. Seeing no response from OSHA, on November 28, ...

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