UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NORFOLK SOUTHERN RAILWAY COMPANY, Civil Action No. 12-0306 (BJR) Plaintiff, MEMORANDUM OPINION v.

HILDA L. SOLIS, Secretary of Labor,

Defendant.

This matter is before the Court on a motion to dismiss (Dkt. #7) filed by Defendant Hilda

L. Solis, Secretary of the United States Department of Labor (“Secretary”). The Secretary

moves to dismiss the claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),

arguing that this Court lacks subject-matter jurisdiction or, in the alternative, Plaintiff Norfolk

Southern Railway Company (“NSR”) has failed to state a claim. NSR seeks review of a non-

final agency action by the Secretary, acting through an Administrative Review Board (“ARB”).

Compl. (Dkt. #1) ¶ 60. NSR claims that the district court may review this action under the

doctrine of Leedom v. Kyne,

(1958), arguing that the decision was in excess of the

Secretary’s delegated powers, and that NSR will have no other meaningful and adequate means

to vindicate its statutory right. Compl. ¶ 4. The Secretary cites to statutory provisions placing

review of final decisions by the ARB in the appellate court.

Also pending before the Court are two motions to intervene: one by Michael L. Mercier

and his union, the Brotherhood of Locomotive Engineers and Trainmen (“BLET”) (Dkt. #10)

and one by the United Transportation Union (“UTU”) (Dkt. #15). Mercier, BLET, and UTU

support the Secretary’s motion to dismiss. Having reviewed the briefs and underlying cases, the Court grants the Secretary’s motion

to dismiss. The Court also grants Mr. Mercier’s motion to intervene as a matter of right, and

denies the motions to intervene by BLET and UTU.

I. LEGAL STANDARD

A. Rule 12(b)(1) Motion to Dismiss

The Secretary moves to dismiss this action under Rule 12(b)(1) for lack of subject-matter

jurisdiction. When a party files a motion to dismiss for lack of subject-matter jurisdiction under

Rule 12(b)(1), “the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence

that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth.,

(D.D.C. 2004). Because subject-matter jurisdiction focuses on a court’s

power to hear the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the court an affirmative

obligation to ensure that it is acting within the scope of its jurisdictional authority. Grand Lodge

of Fraternal Order of Police v. Ashcroft,

(D.D.C. 2001). For this reason,

NSR’s “‘factual allegations in the complaint . . . will bear closer scrutiny in resolving [the]

12(b)(1) motion’ than in resolving [the] 12(b)(6) motion for failure to state a claim.”

at 13-14

(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d

ed. 1987) (alteration in original)).

B. Rule 24 Motions to Intervene

Three parties seek to intervene in this matter under Federal Rule of Civil Procedure 24:

Michael Mercier, BLET, and UTU. The parties move to intervene as of right pursuant to Rule

24(a)(2), or, in the alternative, as a matter of discretion pursuant to Rule 24(b).

A party seeking to intervene as of right under Rule 24(a)(2) must satisfy four

requirements:

2 1) [T]he application to intervene must be timely, 2) the party must have an interest relating to the property or transaction which is the subject of the action, 3) the party must be so situated that the disposition of the action may, as a practical matter, impair or impede the party's ability to protect that interest, and 4) the party's interest must not be adequately represented by existing parties to the action.

Building & Constr. Trades Dep’t v. Reich,

(D.C. Cir. 1994). Furthermore, a

movant seeking to intervene under Rule 24(a)(2) must satisfy the same Article III standing

requirements as the original parties.

Permissive intervention under Rule 24(b)(1) is, as the name suggests, a matter of the

court’s discretion. The Rule provides that the court may permit anyone to intervene who 1)

makes a timely motion, 2) has a claim or defense, and 3) that claim or defense shares a common

question of law or fact with the main action. Fed. R. Civ. P. 24(b)(1)(B); see also EEOC v. Nat’l

Children’s Ctr.,

(D.C. Cir. 1998). In addition to these factors, the court

must consider whether intervention would cause any undue delay or prejudice to the original

parties.

1

II. STATUTORY BACKGROUND

A. Railway Labor Act

The Railway Labor Act,

et seq. (“RLA”) was enacted in 1926 to govern

the relations between railroad carriers and their employees and to establish a process for the

orderly resolution of disputes between rail carriers and their employees without interrupting

commerce or operations. 45 U.S.C. § 151a. The RLA requires the formation of collective

bargaining agreements (“CBAs”) between carriers and their employees as to rates of pay, rules,

1 The D.C. Circuit has not resolved whether independent Article III standing is required for permissive intervention. Peters v. District of Columbia, Case No. 09-CV-2020,

, at *137 n.34 (D.D.C. Apr. 16, 2012) (citations omitted).

3 and working conditions, and to settle all disputes in a way that avoids interruption to commerce

or the operation of the carrier.

First. 2 Section 3 of the RLA,

,

establishes a framework for resolving disputes between an employee and carrier over the

interpretation of such agreements. Disputes concerning the application or interpretation of a

CBA, including disputes over the assessment of discipline pursuant to the terms of a CBA, are

first handled according to the grievance procedure in the CBA.

First (i); see

also Union Pac. R.R. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment,

Cent. Region,

, --,

(2009). If the grievance process is not

successful in settling the matter, the employee or carrier may pursue further remedies though

mandatory arbitration before the National Railroad Adjustment Board (“NRAB”) or a special

board of adjustment established by the railroad carrier and the union.

First (i),

Second. The special board of adjustment is created by the agreement of a railroad and labor

union, under the authority of the National Mediation Board (“NMB”), a federal agency.

Second.

An award rendered by an RLA § 3 arbitration board is made “final and binding” by the

statute.

First (m), Second. The mandatory arbitration process is exclusive and

extinguishes any other remedies for alleged violations of a railroad labor agreement. See, e.g.,

Andrews v. Louisville & Nashville R.R. Co.,

(1972). However, claims that

are independent of a CBA, and that do not require the interpretation or application of a CBA,

may be pursued in other forums. See, e.g., Atchinson, Topeka & Santa Fe Ry. Co. v. Buell,

(1987) (finding that the possibility of pursuing a claim through the RLA did

2 Subsections in this statute are represented by ordinal name rather than a number.

4 not deprive an employee of an action under the Federal Employers’ Liability Act, when the

rights asserted were not based on the CBA).

B. Federal Railroad Safety Act,

et seq.

1. The 1980 Amendments to the Federal Railroad Safety Act

The Federal Railroad Safety Act (“FRSA”) was enacted by Congress in 1970. Pub. L.

No. 910458,

, et seq. (1970). After the passage of FRSA, however, Congress noted

that railroad workers who complained about safety conditions experienced retaliation for their

actions. See Consol. Rail Corp. v. United Transp. Union,

(E.D. Pa. 1996)

(citation omitted). In response, Congress amended FRSA in 1980. The 1980 amendments added

a section that prohibited rail carriers from retaliating and discriminating against employees who,

among other things, reported violations of federal railroad safety laws or refused to work under

hazardous conditions. See Federal Railroad Safety Authorization Act of 1980, Pub. L. No. 96-

423, § 10,

, 1815 (1980). Following the 1980 amendments, employees who

experienced such retaliation in violation of FRSA could seek relief through the arbitration

procedures set forth in RLA § 3,

. See

at § 10, § 212(c)(1),

,

1815.

The 1980 amendments also included an “Election of Remedies” provision. 3

at § 10, §

212(d),

, 1815-16. Congressman James Florio, manager of the 1980 bill in the

House of Representatives, explained the purpose of the Election of Remedies provision:

We . . . agreed to a provision clarifying the relationship between the remedy provided here and a possible separate remedy under

3 The original section provided: “Whenever an employee of a railroad is afforded protection under this section and under any other provision of law in connection with the same allegedly unlawful act of an employer, if such employee seeks protection he must elect either to seek relief pursuant to this section or pursuant to such other provision of law.”

at § 10, § 212(d),

, 1815-16.

5 OSHA. Certain railroad employees, such as employees working in shops, could qualify for both the new remedy provided in this legislation, or an existing remedy under OSHA. It is our intention that pursuit of one remedy should bar the other, so as to avoid resort to two separate remedies, which would only result in unneeded litigation and inconsistent results.

126 Cong. Rec. 26,532 (1980).

The current “Election of Remedies” section reads as follows: “An employee may not

seek protection under both this section and another provision of law for the same allegedly

unlawful act of the railroad carrier.”

(f). 4

2. The 2007 Amendments to the Federal Railroad Safety Act

In 2007, Congress amended FRSA to include additional categories of FRSA-protected

conduct. See Implementing Recommendations of the 9/11 Commission Act of 2007,

,

, 444 (2007). FRSA currently provides, in relevant part, that a

railroad carrier “may not discharge, demote, suspend, reprimand, or in any other way

discriminate against an employee” for an employee’s actions “to notify, or attempt to notify, the

railroad carrier or the Secretary of Transportation of a work-related personal injury or work-

related illness.”

(a)(4).

The 2007 amendments to FRSA also specifically eliminated the requirement that FRSA

complaints proceed through the RLA arbitration process, instead transferring authority to

investigate and adjudicate such complaints to the Secretary of Labor.

(c),

, 446. Furthermore, Congress added sections (g) and (h) to the statute,

which specify that nothing in § 20109 of FRSA preempts or diminishes other rights of

4 The parties do not dispute that the meaning of the section has not changed since 1980, although the language has been altered in subsequent amendments. See Def.’s Mot. at 4; Pltf.’s Opp. (Dkt. #14) at 11 n.9.

6 employees, and that the rights provided by FRSA cannot be waived. 5

(g),

(h). The 2007 amendments were an attempt to “enhance[] administrative and civil remedies for

employees” and “to ensure that employees can report their concerns without the fear of possible

retaliation or discrimination from employers.” H.R. Rep. No. 110-259 at 348 (2007) (Conf.

Rep.).

3. Investigating retaliation claims under

The Secretary has delegated her authority to investigate complaints for retaliation under

to the Assistant Secretary for Occupational Safety and Health (the “Assistant

Secretary”), who oversees the Occupational Safety and Health Administration (“OSHA”). See

. The Assistant Secretary must dismiss a complaint if it does not contain a

prima facie showing that the employee’s engaging in protected activity was a contributing factor

in the alleged adverse employment action. See

(d)(2)(A), incorporating

(b)(2)(B)(i);

(e)(1). Otherwise, the Assistant Secretary will

conduct an investigation and, if “there is reasonable cause to believe that a violation has

occurred,” issue a preliminary order granting relief.

. Relief may include

5 The sections are as follows:

(g) No preemption. Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law.

(h) Rights retained by employee. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.

(g), (h).

7 abatement, reinstatement (with back pay, terms, and conditions of employment), compensatory

damages, attorney’s fees, and punitive damages up to $250,000.

Either the rail carrier or the employee may file objections to the Assistant Secretary’s

findings and determinations and seek a hearing before an Administrative Law Judge (“ALJ”).

(d)(2)(A), incorporating

(b)(2)(A);

(a).

A preliminary order of reinstatement issued on behalf of the Assistant Secretary remains in effect

unless specifically stayed.

By delegation of the Secretary, decisions and recommendations

by ALJs made pursuant to

are reviewed by the Department of Labor’s ARB.

Secretary’s Order No. 1-2010,

-01 ¶ 5(c)(15) (Jan. 15, 2010). The ARB also

has authority to issue final decisions on behalf of the Secretary.

. A party seeking review,

including judicial review, of a decision of the ALJ must file a petition with the ARB.

(a). An order of reinstatement issued by an ALJ continues in effect while the matter

is pending before the ARB, unless the reinstatement order is specifically stayed.

(b). A final order of the ARB (which is the final order of the Secretary) is subject to

judicial review in a United States Court of Appeals.

(d)(4);

.

District courts have jurisdiction in § 20109 actions in two limited circumstances. First, if

the Secretary has not issued a final decision within 210 days of the filing of an administrative

complaint, and the delay is not due to the bad faith of the employee, the employee may bring an

action in district court for de novo review of the complaint.

(d)(3). Second,

the Secretary may bring an action in district court to require compliance with an order issued

pursuant to the procedures in

(b) (Department of Labor complaint procedure).

(d)(2)(A)(iii). Neither of these circumstances is present in this case.

8 III. FACTUAL BACKGROUND

A. Underlying events and the RLA proceeding

Larry L. Koger was employed by NSR as a conductor, and worked under a CBA between

NSR and UTU, Koger’s labor union. Compl. ¶ 18. On July 29, 2007, Koger failed to alert an

engineer to stop at a red signal, in violation of NSR’s operating rules. Compl. ¶ 19. The

locomotive the engineer was driving ran the signal, struck a derailing device, derailed, and was

damaged.

On August 8, 2007, NSR conducted a formal investigational hearing in

accordance with the CBA to determine Koger’s responsibility in connection with the locomotive

passing the signal, and determined that he was responsible. Compl. ¶ 20. On August 21, 2007,

NSR dismissed Koger from service for his responsibility in allowing the locomotive to run

through the red signal.

Koger’s representative from UTU appealed his dismissal within

NSR, but it was affirmed. Compl. ¶ 21.

Koger then challenged his dismissal in arbitration before Public Law Board No. 5944

(“PLB 5944”), as provided in his CBA. Compl. ¶ 22. PLB 5944 is an open, ongoing arbitration

board created by NSR and UTU pursuant to RLA § 3 Second,

Second.

PLB

5944 consists of a partisan railroad member, a partisan union member, and a neutral chairman,

who is compensated by the NMB.

On January 8, 2008, PLB 5944 issued an interim award,

which directed that Koger be returned to service, but deferred a final determination of the

propriety of NSR’s assessment of discipline against Koger. Compl. ¶ 23. On July 28, 2008,

PLB 5944 issued its final award, which upheld NSR’s assessment of discipline, but modified the

extent of the discipline by reducing it from a dismissal to an unpaid suspension from service for

an extended period of time. Compl. ¶ 24.

9 B. The FRSA proceedings

On the day following the derailment, Koger notified NSR that he had been injured in the

accident. Compl. ¶ 25. In February 2008, after receiving his notice of dismissal from NSR, and

while arbitration was pending, Koger filed a whistleblower complaint under

,

alleging that he had been terminated in violation of FRSA for reporting a work-related personal

injury to NSR.

On June 3, 2008, following an investigation, the Regional Administrator for

OSHA, Region III, exercising authority delegated by the Assistant Secretary, determined that

there was no reasonable cause to believe that NSR had retaliated against Koger in violation of

FRSA. Compl. ¶ 26. Koger appealed the Regional Administrator’s determination to a

Department of Labor ALJ. Compl. ¶ 27. The ALJ held that

(f) barred

Koger’s FRSA complaint, because Koger elected to challenge his dismissal by pursuing the

grievance and arbitration procedures under RLA § 3,

. Id.; Koger v. Norfolk

Southern Ry., Case No. 2008-FRSA-003 (May 29, 2009). According to the ALJ, Koger sought

protection under “another provision of law,” i.e., the RLA, for the “same unlawful act,” i.e., his

discharge. Therefore, the ALJ reasoned, Koger’s complaint ran counter to the language of

§ 20109(f). Id.; Compl. Exh. A (Final Decision and Order on Interlocutory Review by the ARB)

(“ARB decision”) at 4.

Koger petitioned the ARB for review of the ALJ’s decision. Compl. ¶ 28. The ARB

consolidated Koger’s appeal with an appeal in another case, Mercier v. Union Pacific R.R., Case

No. 2008-FRSA-0004 (June 3, 2009), where a different ALJ determined that § 20109(f) did not

preclude an employee who had challenged his termination in RLA § 3 arbitration from filing a

whistleblower claim under FRSA. Compl. ¶ 29. The ALJ in Mercier determined that “the

contractual agreement or collective bargaining agreement under which Mercier had proceeded in

10 his grievance/arbitration action is not a provision of law in itself although it is enforceable

through provisions of law such as the RLA.” ARB decision at 3. The ALJ in Mercier observed

that this conclusion was supported by § 20109(g), which provides that nothing in § 20109

preempts or diminishes any other safeguards against discrimination, and § 20109(h), which

provides that employees retain rights and remedies “under any Federal or State law or under any

collective bargaining agreement,” and that the rights and remedies provided under FRSA “may

not be waived.” Id.

The ARB agreed with the decision of the ALJ in Mercier, and, on September 29, 2011,

ruled that, as a matter of law, an employee’s pursuit of RLA arbitration does not constitute an

election of remedies under

(f). Compl. ¶ 30. The ARB affirmed the ALJ’s

order in Mercier, reversed the dismissal of Koger’s FRSA complaint, and remanded both cases

for further proceedings consistent with its opinion. ARB decision at 9. The ARB decision was

not a final order of the Secretary, and is not appealable to a court of appeals under

(d)(4). Compl. ¶ 32.

C. The District Court action

NSR filed its complaint in the district court on February 24, 2012. NSR asks the Court to

vacate and set aside the September 29, 2011 decision of the Secretary, to declare that the

Secretary may not rely on that decision in any other proceedings under

, to

direct the Secretary to dismiss Koger’s complaint, and to enjoin the Secretary and her delegates

from applying the interpretation of

(f) set forth in the September 29, 2011

decision in any other proceedings under

. Compl. ¶ 63(1). The Secretary filed

the instant motion to dismiss on April 30, 2012. Mercier and BLET filed their motion to

11 intervene on May 23, 2012; UTU filed its motion to intervene on June 1, 2012. The case was

transferred to the undersigned judge on November 5, 2012.

IV. MOTIONS TO INTERVENE

A. Michael Mercier’s motion to intervene will be granted as of right

There is no question that Mercier should be able to intervene as of right. His

underlying FRSA complaint was similar enough to Koger’s that the ARB consolidated their

cases, and, were this Court to declare that the Secretary could not rely on the ARB decision, it

would directly impact his complaint. NSR does not oppose Mercier’s request, but asks leave to

respond to any new arguments raised by Mercier in his briefing. Pltf.’s Opp. to Mot. to

Intervene (Dkt. #17) at 4. Inasmuch as the Court did not rely on Mercier’s briefing in reaching

its decision on the motion to dismiss, it is not necessary for NSR to file a response. Therefore,

Mercier’s motion to intervene is granted, and NSR’s request for leave to file a response is

denied.

B. The motions to intervene by the unions will be denied

1. Motion to intervene as of right

BLET and UTU move to intervene, either as of right or permissively, on the basis of their

representation of railroad workers who could be impacted by this decision. The unions argue

that disposition of this action may, as a practical matter, impair or impede their ability to protect

the interests of their members, who would be forced to choose between protecting the integrity of

their CBAs and filing a complaint under FRSA if the Secretary could not rely on the ARB

decision. NSR opposes intervention by the unions, arguing that the unions fail to meet the

prerequisites for intervention as of right, and have no basis for requesting permissive

intervention.

12 The Court determines that neither union has shown that its interest as a collective

bargaining overseer is sufficiently related to defending the Secretary’s interpretation of FRSA to

merit intervention as of right. Furthermore, to the extent the unions’ interests do relate to this

action, the unions do not contend that the Secretary’s representation is inadequate, nor do they

contribute additional arguments to those raised by the Secretary. While the unions raise the

specter of what interests may be at stake if the Court denies the motion to dismiss, since the

Court is granting the motion, that particular argument is irrelevant.

2. Motion for permissive intervention

As to permissive intervention, the Court finds that the unions’ interests do not

demonstrate that either union has a claim or defense sharing a common question of law or fact

with the main action such that permissive intervention would be appropriate. Their respective

positions merely support that of the Secretary without adding anything new, and their interests

are speculative at best. Therefore, the unions’ motions to intervene are denied.

V. MOTION TO DISMISS

The Secretary contends that this Court lacks subject-matter jurisdiction, pointing to

(d)(4), which explicitly authorizes judicial review of final orders of the Secretary

only in the courts of appeals. NSR claims that it is entitled to direct review of the ARB decision,

a non-final action by the Secretary, by the district court under the doctrine of Leedom v. Kyne.

NSR claims that the ARB decision is “in excess of the Secretary’s jurisdiction and delegated

powers, and NSR has no other meaningful and adequate means of vindicating its statutory right.”

Compl. ¶ 4.

The Leedom doctrine provides a narrow exception to statutes that contain an implied

preclusion of district court review of administrative action. In Leedom, petitioners challenged a

13 decision of the National Labor Relations Board (“the NLRB” or “the Board”), in which the

Board certified a bargaining unit containing both professional and non-professional employees

without allowing the professional employees of the unit to vote. Leedom,

. The

National Labor Relations Act (“the NLRA”) contains a provision that the NLRB will not certify

a collective bargaining unit for such purposes if the unit contains both professional and non-

professional employees unless a majority of the professional employees vote for inclusion in the

unit.

(b)(1). The Board did not contest that it “acted in excess of its powers and

had thereby worked injury to the statutory rights of the professional employees.” Leedom,

. The NLRA, however, did not provide for any judicial review of the Board’s

determination, as a Board order in a certification proceeding was not considered a “final order”

subject to review.

The Supreme Court held that, under the particular circumstances, the

district court had jurisdiction to afford the petitioners a remedy. The Court noted that the district

court was not reviewing a decision by the Board made within the Board’s jurisdiction, but was

being asked to strike down an order of the Board “made in excess of its delegated powers and

contrary to a specific prohibition in the Act.”

. The Supreme Court determined that the

provision requiring a vote among the professional employees was “clear and mandatory.”

In

exercising a power that was specifically withheld, the Board “deprived the employees of a ‘right’

assured to them by Congress.”

. Furthermore, if the federal courts did not exercise

jurisdiction, the professional employees would have no other means within their control by

which to protect and enforce the statutory right provided by Congress.

.

The exception under the Leedom doctrine is extremely narrow. The district court may

not invoke its jurisdiction merely because a party alleges that an agency has exceeded its

statutory authority. See Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc.,

32, 43 (1991). Under review schemes such as that in

(d)(4), “where Congress

has set out a complex scheme authorizing certain types of review but not others,” and Congress

has “explicitly given the district courts review authority” in particular areas, the statute

powerfully suggests the intent to preclude district court review under other circumstances. 6

Griffith v. Fed. Labor Relations Auth.,

(D.C. Cir. 1988). Therefore, the

agency error at stake in a case where the Leedom doctrine applies must be “so extreme” as to be

“jurisdictional or nearly so.” Nyunt v. Chairman, Broad. Bd. of Governors,

(D.C. Cir. 2009) (citation omitted). “Given that very stringent standard, a Leedom v. Kyne claim

is essentially a Hail Mary pass—and in court as in football, the attempt rarely succeeds.”

A party seeking judicial review pursuant to Leedom must satisfy two predicates. First,

the party must demonstrate that the agency disobeyed a statutory provision that is “clear and

mandatory.” Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel,

(D.C. Cir. 2006) (quoting Leedom,

). Second, the party must

show that, without the district court’s exercise of jurisdiction, it lacks any “meaningful and

adequate means of vindicating [its] statutory rights.” Nat’l Air Traffic Controllers,

. (quoting MCorp, 502 U.S. at 43).

Having reviewed the briefing, FRSA, the ARB decision, and the case law, the Court

concludes that NSR has failed to satisfy either prong under the Leedom doctrine.

6 As the Secretary notes, the party seeking to invoke Leedom must show that the preclusion of judicial review in the statute was merely implied, rather than express. While the Secretary argued that the Court does not have jurisdiction under FRSA to review the ARB decision in its motion to dismiss, however, she only raised the implied-versus-express preclusion argument in her reply brief. See Def.’s Mot. at 10; Def.’s Reply (Dkt. #23) at 2-4. The Court will not consider that particular argument, and will move on to the analysis under the Leedom doctrine.

15 A. NSR failed to show that the Secretary disobeyed a statutory provision that is clear and mandatory

NSR must show a “clear and mandatory” obligation on the part of the Secretary either to

refrain from or to engage in particular conduct, and show that the ARB decision violates that

particular obligation. Nat’l Air Traffic Controllers,

. District court review

under the Leedom doctrine may be appropriate when an agency has engaged in a “gross

violation” of statutory duties, and when absence of review would result in the “sacrifice or

obliteration of a right” created by Congress. Ry. Labor Exec. Ass’n. v. Nat’l Mediation Bd.,

(D.C. Cir. 1994) (en banc). Such review is not appropriate if the agency’s

interpretation is a “colorable” reading of the statute, even if that reading is not the only one

possible. Griffith,

. See also Nat’l Air Traffic Controllers,

(noting that both sides raised compelling arguments, which indicated that the “statutory

directive” was not “specific and unambiguous”).

NSR claims that

(f) imposes a clear and mandatory obligation on the

part of the Secretary to bar complaints from employees who have engaged in mandatory

arbitration pursuant to the procedures in RLA § 3. NSR further claims that to allow employees

who have already engaged in RLA § 3 arbitration to maintain complaints under FRSA would

deprive rail carriers of a Congressionally-created right to be free of such suits.

Contrary to NSR’s assertions, the statute is neither specific nor unambiguous. As noted

above, at the forefront of the ARB decision was the question of whether an employee who

engages in mandatory arbitration for violation of the terms of a CBA who also files a FRSA

complaint is “seek[ing] protection” under FRSA and “another provision of law.” ARB decision

at 3. The ARB decision, citing Alexander v. Gardner-Denver Co.,

(1974), explained

that “another provision of law” does not encompass grievance procedures pursued under a CBA.

16 ARB decision at 7. In Alexander, the Court considered “under what circumstances, if any, an

employee’s statutory right to a trial de novo under Title VII may be foreclosed by prior

submission of his claim to final arbitration under the nondiscrimination clause of a collective-

bargaining agreement.” Alexander,

. The Court determined that contractual rights

under a CBA were distinct from federal statutory rights, and the rights had “legally independent

origins.”

. Referencing Alexander, the ARB decision determined that a reading of

§ 20109(f) allowing retaliation claims to proceed concurrent with collective bargaining grievance

procedures would be consistent with the plain meaning of FRSA in light of §§ 20109(g) and (h),

which reinforce employee rights (under § 20109(h)) and limit the preemption of other rights of

action by an employee (under § 20109(g)).

NSR argues that the ARB decision’s reasoning is flawed, citing Norfolk & Western Ry. v.

Am. Train Dispatchers Ass’n,

(1991) for the proposition that a railroad employee

seeking relief for violation of the terms of a CBA is seeking protection under the RLA, and that a

CBA falls under “all other law” as it appears in a statutory immunity provision. Contrary to

NSR’s position, the opinion in Norfolk & Western is not entirely inconsistent with that in

Alexander, nor is it as determinative as NSR maintains. Norfolk & Western states that the

obligations of the RLA “give[] force to the carriers’ collective bargaining agreements,” and that

the “RLA governs the formation, construction, and enforcement of the labor-management

contracts.” Norfolk & Western,

. In the instant action, as in Norfolk & Western,

the RLA provisions for mandatory arbitration of disputes concerning the CBA are procedural,

while the substantive provisions at issue come from the CBA itself.

NSR’s argument is flawed in other respects. Section 20109(f) states that the employee

cannot seek protection under FRSA and another provision of law for “the same allegedly

17 unlawful act of the carrier.”

(f). By characterizing the “act” as the dismissal,

NSR paints the “act” with a broad enough brush to include two very different factual scenarios

with two different legal claims. In Koger’s case, the unlawful act alleged under the FRSA was a

dismissal in retaliation for reporting his injury. The unlawful act alleged in his RLA § 3

arbitration was dismissal in violation of his rights under the CBA concerning his responsibility

for the accident.

The statutory history supports separating the claim of retaliation from the claim of a CBA

violation. NSR ignores the different statutory scheme created by the 2007 amendments to

FRSA. 7 Until the 2007 amendments, retaliation claims were pursued before an RLA § 3

arbitration board; therefore, retaliation claims and complaints pursuant to an employee’s CBA

were pursued in one action. The 2007 amendments to the FRSA were an attempt to “enhance[]

administrative and civil remedies for employees” and “to ensure that employees can report their

concerns without the fear of possible retaliation or discrimination from employers.” H.R. Rep.

No. 110-259 at 348 (2007) (Conf. Rep.). As a part of achieving these goals, the Secretary took

over the proceedings related to retaliation claims under FRSA, separating such claims from any

claims alleging violations of an employee’s CBA. At the same time, Congress amended the

statute with §§ 20109(g) and 20109(h). Under NSR’s reading of the statute, an employee who

was dismissed both in violation of his CBA and in retaliation for reporting an injury would be

forced to choose between his claim for retaliation under FRSA and his rights under his CBA. As

discussed above, Congress’ provisions under §§ 20109(g) and (h) limited the preemption of other

7 For instance, NSR points to the 1980 amendments to the statute and the language of Congressman Florio to assert that allowing an employee to engage in arbitration under RLA § 3 and to pursue a FRSA complaint would produce “unneeded litigation and inconsistent results.” Pltf.’s Opp. at 11 (citing statement of Congressman Florio, see Section II.B.1 supra). In doing so, NSR ignores that retaliation proceedings took place before an RLA § 3 arbitration board from 1980 until 2007.

18 rights of action by an employee and reinforced employee rights. It would be highly inconsistent

with the 2007 amendments for Congress, by transferring retaliation claims to the Secretary, to

limit the ability to engage in RLA arbitration and pursue a separate retaliation claim under FRSA

without further clarification.

For purposes of resolving the issue of its jurisdiction, this Court need not determine

whether or not the ARB’s ruling was correct. It need only determine that it was colorable under

the statute, and not in violation of a clear, mandatory directive within the statute. Thus, the

Court finds that the Leedom doctrine does not apply.

B. NSR has not shown that it lacks meaningful and adequate means of vindicating its statutory rights

The second prong that NSR must meet to establish that it is entitled to access to this

Court under the Leedom doctrine is that it would be “wholly deprived” of “meaningful and

adequate means of vindicating its statutory rights.” Nat’l Air Traffic Controllers,

. NSR argues that, without a ruling by this Court as to the correctness of the ARB’s

decision, it lacks any real possibility of vindicating its right to be free from suit under FRSA after

an employee has already pursued mandatory arbitration under RLA § 3. First, because it has

been more than 210 days since Koger filed his complaint, and no final decision has been issued

by the Secretary, he may withdraw his complaint and seek de novo review by a district court. 49

U.S.C. 20109(d)(3). Koger has not exercised that right as of yet, but NSR claims that, if he does,

he will “short-circuit the administrative process.” Pltf.’s Opp. at 39. NSR claims that it would

not be sufficient to argue that the ARB decision was wrongly decided in that case, because the

district court could not bind the Secretary to its decision. Furthermore, NSR claims that, even if

it were assured of court of appeals review at the end of the administrative process, it would not

provide a meaningful and adequate opportunity to obtain relief, because § 20109(f) is meant to

19 protect a railroad from having to go through FRSA investigation in the first place. In short, NSR

claims that, if it must proceed in the investigation, it has already lost its right under the statute.

First, NSR’s view of its circumstances is too narrow. The question of whether a party is

“wholly deprived” of any means of vindicating its statutory rights should be viewed more

broadly. In Leedom, there was no scheme in place for review of the agency’s action by any

means. 8 On the other hand, in Sturm, Ruger & Company v. Chao, the Court held that Leedom

was inapplicable, because “[a]n employer” in general could challenge the contested practice

under the statutory review procedure. Sturm, Ruger & Co. v. Chao,

(D.C. Cir.

2002). Likewise, while NSR may never get the opportunity to challenge the ARB decision

before the court of appeals in Koger’s case, it would still have the opportunity to challenge the

ARB decision’s interpretation of the statute in another case. NSR may lack clarity on the fate of

its claimed statutory rights at this time, but that does not render it “wholly deprived” such that

the Leedom doctrine would be appropriate.

Furthermore, NSR’s latter argument begs the question, in that the Court would have to

assume NSR’s position to be the correct one to believe the investigation to be such an

unwarranted burden. NSR has not argued that it would experience irreparable harm if forced to

go through with Koger’s FRSA investigation—merely that it would have to proceed with an

investigation to prove that it does not have to proceed with an investigation. It cannot be said

that the practical effect of making NSR go through with this investigation is to somehow

foreclose all access to the courts. Cf. Thunder Basin Coal Co. v. Reich,

, 218

8 Specifically, the certification of a bargaining class in Leedom was a non-final agency action under the statute that did not involve any possibility of moving forward unless it was drawn into question by a petition for enforcement or review of an order restraining an unfair labor practice. See Leedom,

. In the instant action, whether or not Koger actually moves forward with his suit, the statutory scheme provides a structure for adjudication that would, conceivably, lead to a final order by the Secretary that NSR could eventually appeal.

20 (1994) (finding that the choice of compliance with the agency action until the review process

was complete or the incurrence of penalties that were final and payable only after full review was

not so “onerous” or “coercive” as to deny a mine operator of a meaningful and adequate means

of vindicating its rights).

VI. CONCLUSION

In seeking to overturn the decision of the ARB, NSR has tried to avail itself of an

extremely limited doctrine established by Leedomv. Kyne. The Court finds that the Secretary

correctly argues that NSR fails to meet the stringent requirements of Leedom. This Court lacks

subject-matter jurisdiction, and the Secretary’s motion to dismiss is granted.

A separate Order will follow consistent with this opinion.

January 3, 2013

BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE

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