JOHN F. GUERRA, JR., Appellant
CONSOLIDATED RAIL CORPORATION (CONRAIL)
June 13, 2019
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
E. Myers Lawrence A. Katz [ARGUED] Coffey Kaye Myers &
Olley Counsel for Appellant
S. Hawkins Joseph P. Sirbak, II [ARGUED] Cozen O'Connor
Counsel for Appellee
Before: HARDIMAN, PORTER, COWEN, Circuit Judges
PORTER, CIRCUIT JUDGE.
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).
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?
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
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)).
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).
FRSA and its accompanying regulations provide for a
straightforward, multi-step adjudication process for
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. 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.
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. 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).
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).
any person "adversely affected or aggrieved" by the
Secretary's final decision as issued by the
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. §
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
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.
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.
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.
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, ...