Norfolk S. Ry. Co. v. Solis

• Decision Date: 03 January 2013
• Docket Number: Civil Action No. 12–0306 (BJR).
• Citation: 915 F.Supp.2d 32
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff, v. Hilda L. SOLIS, Secretary of Labor, Defendant.
• Court: U.S. District Court — District of Columbia

915 F.Supp.2d 32

NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff,

v.Hilda L. SOLIS, Secretary of Labor, Defendant.

Civil Action No. 12–0306 (BJR).

United States District Court, District of Columbia.

Jan. 3, 2013.

Jeffrey S. Berlin, Sidley Austin, LLP, Washington, DC, for Plaintiff.

Hector G. Bladuell, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

BARBARA J. ROTHSTEIN, District Judge.

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 nonfinal 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, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (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 STANDARDA. 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., 310 F.Supp.2d 172, 176 (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, 185 F.Supp.2d 9, 13 (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.” Id. 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:

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, 40 F.3d 1275, 1282 (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. Id.

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., 146 F.3d 1042, 1045–46 (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. Id.¹

II. STATUTORY BACKGROUNDA. Railway Labor Act

The Railway Labor Act, 45 U.S.C. § 151 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, and working conditions, and to settle all disputes in a way that avoids interruption to commerce or the operation of the carrier. 45 U.S.C. § 152 First.² Section 3 of the RLA, 45 U.S.C. § 153, 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. 45 U.S.C. § 153 First (i); see also Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 72–73, 130 S.Ct. 584, 591, 175 L.Ed.2d 428 (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. 45 U.S.C. § 153 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. 45 U.S.C. § 153 Second.

An award rendered by an RLA § 3 arbitration board is made “final and binding” by the statute. 45 U.S.C. § 153 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., 406 U.S. 320, 322–26, 92 S.Ct. 1562, 32 L.Ed.2d 95 (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., Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 564–65, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) (finding that the possibility of pursuing a claim through the RLA did 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, 49 U.S.C. § 20101 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, 84 Stat. 971, 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, 947 F.Supp. 168, 171 (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, 94 Stat. 1811, 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, 45 U.S.C. § 153. See id. at § 10, § 212(c)(1), 94 Stat. 1811, 1815.

The 1980 amendments also included an “Election of Remedies” provision. ³Id. at § 10, § 212(d), 94 Stat. 1811, 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 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.” 49 U.S.C. § 20109(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, Pub. L. No. 110–53, § 1521, 1221 Stat. 266, 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...