Thomas Dipley v. Union Pacific Railroad Company, 5:17-cv-00422

Plaintiff Thomas Dipley, a Union Pacific deputy chief, alleges supervisors retaliated and harassed him after he filed internal and OSHA whistleblower complaints regarding on-the-job injury reporting and related personnel actions.
Plaintiff filed state-law claims in Riverside County Superior Court: Tameny retaliation (public policy), harassment in violation of public policy, and California Labor Code violations.
Defendants (Union Pacific and several supervisors) removed the action to federal court asserting federal-question jurisdiction based on complete preemption by the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109.
Defendants relied primarily on the FRSA election-of-remedies provision to argue the complaint was preempted and therefore removable; they also referenced OSHA’s 210-day rule as a basis for federal jurisdiction.
The FRSA contains express language preserving other federal and state remedies and does not provide an express private cause of action; Plaintiff’s OSHA (whistleblower) complaint remained pending and was not prosecuted to judgment.
The Court concluded Defendants failed to meet the heavy burden for removal; it remanded the case to state court and denied fees under 28 U.S.C. § 1447(c).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FRSA completely preempts state-law claims, creating federal-question jurisdiction	Dipley argues state claims are not preempted; FRSA preserves state remedies	Defendants contend FRSA (via election-of-remedies) bars pursuing state law for same acts, so removal proper	Court: No complete preemption; remand granted
Whether filing an OSHA/FRSA complaint constituted an "election" barring state suits	Dipley: mere filing pending administrative complaint is not a conclusive election	Defendants: OSHA complaint elects FRSA remedy, precluding state claims	Court: Mere filing does not constitute conclusive election; election requires prosecution to judgment or estoppel elements
Whether OSHA 210-day administrative delay confers federal jurisdiction for de novo district-court action	Dipley did not invoke a de novo federal action under the 210-day rule	Defendants argue entitlement to federal jurisdiction due to elapsed 210 days	Court: Not applicable—Plaintiff did not bring a de novo federal action; cannot be basis for removal
Whether plaintiff entitled to costs and fees for improper removal under 28 U.S.C. § 1447(c)	Dipley sought fees and costs	Defendants opposed	Court: Denied fees and costs

Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992) (removal statute construed narrowly; defendant bears burden of showing removal proper)
Fisher v. NOS Commc'ns, 495 F.3d 1052 (9th Cir. 2007) (well-pleaded complaint rule for federal-question jurisdiction)
Hunter v. Philip Morris USA, 582 F.3d 1039 (9th Cir. 2009) (plaintiff may avoid federal jurisdiction by pleading only state law)
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983) (federal defenses, including preemption, do not support removal absent complete preemption)
Botsford v. Blue Cross & Blue Shield of Mont., 314 F.3d 390 (9th Cir. 2002) (complete preemption requires conflict plus displacement of state remedies)
Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003) (examples of statutes that create exclusive federal cause of action and procedures)
Lee v. Norfolk S. Ry. Co., 802 F.3d 626 (4th Cir. 2015) (election-of-remedies discussion cited by defendants)
Reed v. Norfolk S. Ry. Co., 740 F.3d 420 (7th Cir. 2014) (election-of-remedies discussion cited by defendants)