Despain v. BNSF Railway Co.
186 F. Supp. 3d 988
D. Ariz.2016Background
- Plaintiff Gary Despain filed a timely retaliation complaint with the Secretary of Labor under the Federal Railroad Safety Act (FRSA) after a 2010 workplace injury and alleged adverse actions by BNSF Railway.
- The FRSA (49 U.S.C. § 20109) requires initial filing with the Secretary (180‑day filing limit) and permits an employee to bring an "original action" in federal district court for de novo review if the Secretary fails to issue a final decision within 210 days (the "kick-out" provision).
- The Secretary investigated, issued a preliminary order in July 2015 finding reasonable cause and awarding relief; BNSF objected and sought ALJ review.
- While administrative review was pending beyond 210 days, Despain filed a notice of intent and then this district‑court action under the kick‑out provision in December 2015; the ALJ found Despain had not waived removal and dismissed the administrative action for lack of jurisdiction.
- BNSF moved to dismiss the district action as time‑barred by the federal catch‑all four‑year statute of limitations, 28 U.S.C. § 1658(a).
- The district court denied the motion, holding § 1658(a) does not apply to FRSA kick‑out actions for the reasons below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 28 U.S.C. § 1658(a) (four‑year catch‑all) governs timeliness of a district‑court "original action" under FRSA § 20109(d)(3) | Despain: district action is a continuation of the timely administrative complaint (governed by the 180‑day filing rule), so § 1658(a) does not apply | BNSF: kick‑out is a separate federal action that must also comply with § 1658(a) | Court: § 1658(a) does not apply; the district action is governed by the already‑satisfied 180‑day filing or, alternatively, is limited by the Secretary's issuance of a final decision (no limitations gap) |
| Whether the kick‑out action requires an independent statute of limitations | Despain: no separate period needed; action replaces and continues the agency proceeding | BNSF: yes, an "original action" needs its own limitations period | Court: no separate period is necessary; applying one would frustrate FRSA's purpose and limitations policy does not justify imposing § 1658(a) here |
| Whether continuing‑violation or agency‑finality framing permits tolling or ongoing availability of the district remedy | Despain: remedy is available while agency delay persists; the right expires when the Secretary issues a final decision | BNSF: (implicitly) limitations should run regardless of ongoing agency delay | Held: FRSA ties availability to agency finality; the remedy lasts as long as the Secretary has not issued a final decision (analogous to continuing violation principles) |
| Whether precedent applying § 1658 to similar kick‑out statutes is controlling | Despain: cases cited by BNSF are distinguishable, dictum, or unpersuasive | BNSF: analogies to Sarbanes‑Oxley cases (and some district courts) support application of § 1658 | Court: prior cases (Jones, Gunderson, Ellis) do not compel a contrary result; Jordan and other authority support exempting kick‑out actions from § 1658 |
Key Cases Cited
- Burnett v. New York Cent. R. Co., 380 U.S. 424 (1965) (statutes of limitations protect defendants from stale claims and lost evidence)
- Havens Realty Corp. v. Coleman, 455 U.S. 368 (1982) (continuing violation doctrine: when an unlawful practice continues, claim may be timely)
- Stone v. Duke Energy Corp., 432 F.3d 320 (4th Cir.) (ALJ removal/transfer principle under analogous statute)
- Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658 (4th Cir.) (interpreting Sarbanes‑Oxley kick‑out claims; discussion of § 1658 was not dispositive)
- Jordan v. Sprint Nextel Corp., 3 F. Supp. 3d 917 (D. Kan.) (held § 1658 did not govern timeliness of Sarbanes‑Oxley kick‑out action)
- Lee v. Norfolk S. Ry. Co., 802 F.3d 626 (4th Cir.) (characterizing FRSA § 20109(d)(3) as a kick‑out/opt‑out remedy)