U.S. Department of Labor (2023)

Agency decision

Ask Donna

What actually matters in this document.

Text

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

DALE GOURNEAU,

COMPLAINANT,

ARB CASE NO. 2023-0034

ALJ CASE NO. 2021-FRS-00018

ALJ EVAN H. NORDBY

DATE: June 24, 2025

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Frederic A. Bremseth, Esq.; Bremseth Law Firm, PC; Minnetonka,

Minnesota

For the Respondent:

Bryan P. Neal, Esq.; Holland & Knight, LLP; Dallas, Texas

Before JOHNSON, Chief Administrative Appeals Judge, and THOMPSON,

KAPLAN, BURRELL, and KIKO, Administrative Appeals Judges

NOTICE OF REFERRAL TO THE SECRETARY

SUMMARY

This case arises under the whistleblower protection provisions of the Federal

Railroad Safety Act (FRSA).1 On May 4, 2023, a United States Department of Labor

Administrative Law Judge (ALJ) issued a Decision and Order (ALJ Decision)

concluding that Respondent BNSF Railway Company terminated Complainant Dale

Gourneau’s employment in violation of the FRSA after he reported hazardous safety

49 U.S.C. § 20109; 29 C.F.R. Part 1982 (2024).

and security conditions. Consistent with the remedies provided in the FRSA, the

ALJ ordered Respondent to reinstate Complainant, seal portions of his employment

record, post a copy of the decision, and pay Complainant back pay, pre- and postjudgment interest, compensatory damages, punitive damages, and reasonable

attorneys’ fees and costs. Respondent appealed the ALJ Decision to the

Administrative Review Board (ARB or Board). On May 21, 2025, the Board issued a

Decision and Order (D. & O.), affirming the ALJ’s Decision, including the remedies.

On June 4, 2025, Respondent filed a Petition for Further Review by the

Secretary of Labor (Petition for Secretarial Review) with the Board. Notably,

Respondent does not seek review of the factual findings or legal conclusions in the

ALJ Decision or in the Board’s D. & O. It does not ask the Secretary to reconsider,

for example, whether Complainant reported hazardous safety or security conditions,

whether Respondent retaliated against Complainant due to his protected activity,

or whether the damages awarded were appropriate under the circumstances.

Instead, Respondent argues that the FRSA’s statutory adjudication provisions,

under which FRSA claims must be adjudicated within the Department of Labor in

the first instance, violate the Seventh Amendment to the United States

Constitution and the Constitution’s separation of powers mandates. Respondent

primarily relies on the Supreme Court’s decision in SEC v. Jarkesy,2 which is

discussed in more detail below.

Pursuant to Secretary’s Order No. 01-2020, the Board hereby provides notice

to the Secretary that it believes that the issue raised by Respondent presents a

question of law that may be of exceptional importance and may warrant review by

the Secretary.3 If the Secretary considers this matter, the Board urges the Secretary

to conclude that the statutory adjudication provisions contained in the FRSA do not

violate the Constitution. Under the current Administration, and represented by the

Department of Justice, as discussed in detail below, the Department of Labor has

taken the position in pending litigation in United States District Courts that

similar whistleblower programs falling under the Secretary’s jurisdiction: (1) do not

implicate the Seventh Amendment right to a jury trial; and, moreover (2) fall within

the “public rights” exception, which exempt them from any right to a jury trial in an

603 U.S. 109 (2024).

See Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020) at

¶6(b)(1).

Article III court.4 Other federal courts and Department ALJs have reached the

same result.5

The Board agrees with the reasoning articulated by the Department

of Labor and other tribunals in those proceedings, and believes the

reasoning extends to the FRSA as well. Concluding otherwise would be

inconsistent with the position the Department has already taken in these other,

similar cases, would contradict the weight of authority in similar circumstances,

and would leave employees like Complainant who blow the whistle on dangerous

conditions without meaningful recourse and hinder the fundamental purpose of the

FRSA whistleblower and anti-retaliation program of preserving the safety and

security of the nation’s railways.

BACKGROUND

1. Factual Background

Complainant worked as a carman for Respondent from 2002 until his

employment was terminated on January 22, 2020. As a carman, Complainant was

responsible for inspecting train cars as they arrived at the train yard. Complainant

had a clean disciplinary record—save for one unexcused absence due to the passing

of his mother—and was known as a “tenacious safety advocate.”

In August and September 2019, Complainant raised several safety concerns

at Respondent’s yard. First, in approximately August of 2019, Complainant raised

an issue with his supervisor and a general foreman regarding the administration of

Respondent’s “Broken Wheel Club” program, an incentive program that encouraged

Perdue Farms Inc. v. Chavez-DeRemer, No. 5:24-cv-00477-BO-RJ (E.D.N.C. filed

Aug. 20, 2024) (Food Safety Modernization Act); Comcast Corp. v. U.S. Dep’t of Lab., No.

1:24-cv-01401-PTG-IDD (E.D. Va. filed Aug. 9, 2024) (Sarbanes-Oxley Act).

Yellow Freight Sys., Inc. v. Martin, 983 F.2d 1195 (2d Cir. 1993) (Surface

Transportation Assistance Act); Skidmore v. ACI Worldwide, Inc., No. 8:08CV01, 2010 WL

2900113 (D. Neb. July 20, 2010) (Sarbanes-Oxley Act); Schmidt v. Levi Strauss & Co., 621

F.Supp.2d 796 (N.D. Cal. 2008) (Sarbanes-Oxley Act); Walton v. Nova Info. Sys., 514

F.Supp.2d 1031 (E.D. Tenn. 2007) (Sarbanes-Oxley Act); Murray v. TXU Corp., No.

Civ.A.3:03-CV-0888-P, 2005 WL 1356444 (N.D. Tex. June 7, 2005) (Sarbanes-Oxley Act);

Wyderka v. Energy Transfer Co., ALJ No. 2023-PSI-00001 (ALJ Jan. 15, 2025) (Pipeline

Safety Improvement Act); Slade v. Norax, LLC, ALJ No. 2024-FDA-00020 (ALJ Oct. 11,

2024) (Food Safety Modernization Act); Drake v. Morinda Holdings, ALJ No. 2023-SOX00023 (ALJ Sept. 4, 2024) (Sarbanes-Oxley Act).

employees to report defects with wheels to prevent derailments. If an employee

reported a defect and the person who administered the program found it eligible,

the employee could receive $500. Complainant discovered that management in his

district was not submitting the carmen’s reported wheel defects for compensation,

and reported this concern to his supervisor.

On September 3, 2019, Complainant raised several more safety concerns.

That morning, Complainant raised concerns pertaining to road conditions, including

washboarding, potholes, and missing blue flags. Later that shift, Complainant

noticed that some of the cars on a train were missing the required federal

consolidated stencil to identify the cars. He reported these issues as well. Finally,

later that day, while waiting for a train to pass, Complainant heard a sound that

indicated a train’s running boards were broken. Three total broken running boards

were identified, which Complainant also reported.

After Complainant reported these safety issues, and despite Complainant’s

clean disciplinary record, Respondent charged Complainant with committing safety

violations on two occasions in quick succession—the first on September 3, 2019 (the

same day he reported poor road conditions, stencil violations, and broken running

boards), and the second on January 3, 2020. Respondent suspended Complainant

after the first alleged safety violation, and terminated his employment after the

second alleged safety violation.

2. Procedural Background

Complainant filed a complaint with the Department’s Occupational Safety

and Health Administration (OSHA) on February 25, 2020, alleging Respondent

retaliated against him in violation of the FRSA. OSHA dismissed Complainant’s

complaint on January 25, 2021, and Complainant requested a hearing with an ALJ.

On May 4, 2023, the ALJ issued the ALJ Decision in favor of Complainant.

The ALJ found that Complainant engaged in several instances of protected activity,

including when he reported concerns about the administration of the “Broken Wheel

Club” program in August 2019, and when he reported dangerous road conditions,

stencil violations, and broken running boards on September 3, 2019. The ALJ also

found that Complainant’s protected activity was a contributing factor to the adverse

employment actions that he suffered, based on temporal proximity, evidence of

pretext, Respondent’s inconsistent application of its policies, Respondent’s

antagonism or hostility towards Complainant and its change in attitude towards

Complainant after he engaged in protected activity, and the falsity of Respondent’s

explanation for taking adverse action against Complainant. The ALJ further found

that Respondent did not prove that it would have taken the same adverse action

against Complainant absent his protected activity because Respondent did not

prove that it applied its rules consistently.

Having found for Complainant, the ALJ ordered the following remedies:

(1) reinstatement; (2) $318,979.98 in back pay wages and $39,679.74 in

prejudgment interest, with backpay and post-judgment interest to continue to

accrue through the date of payment; (3) $70,000 in compensatory damages;

(4) $150,000 in punitive damages; (5) reasonable attorney’s fees and costs; (6) the

sealing of all documents relating to the incidents, charges, and adverse actions

addressed in the ALJ Decision; and (7) the posting of the ALJ Decision for at least

60 days in a place and manner that is usual and customary for employees to gather

and review employment related information.

Respondent appealed the ALJ Decision to the Board. On May 21, 2025, the

ARB affirmed, concluding that the ALJ’s findings were supported by substantial

evidence. The ARB agreed with the ALJ that Complainant engaged in protected

activity when he, among other things, reported that managers were not

administering a program designed to prevent trail derailments, that conditions

existed such that train cars might not be properly inspected or a hazard on a train

car might not be properly identified, and that conditions existed that risked

physical harm to railway workers.6 The ARB also affirmed the ALJ’s holding that

Complainant’s protected activity contributed to the adverse action taken against

him, and that Respondent failed to establish its same-action defense.7 Finally, the

ARB affirmed the damages awarded by the ALJ, including reinstatement, back

wages, and punitive damages due to Respondent’s reckless disregard of

Complainant’s rights.8

On June 4, 2025, Respondent filed the Petition for Secretarial Review.

Complainant filed a response in opposition to the Petition for Secretarial Review on

June 13, 2025. As noted above, Respondent is not contesting the case on the merits,

Gourneau v. BNSF Ry. Co., ARB No. 2023-0034, ALJ No. 2021-FRS-00018, slip op.

at 17-19 (ARB May 21, 2025).

Id. at 20-27.

Id. at 27-35.

but instead is only raising the issue of the constitutionality of the FRSA’s

adjudicatory scheme.

SECRETARY’S DISCRETION TO REVIEW ARB DECISIONS

A party to a case before the Board may, within 14 calendar days after the

Board issues its decision, request that the Board refer the case for further review by

the Secretary of Labor.9 However, the circumstances under which we may refer the

case to the Secretary are extremely narrow. Per the Secretary’s delegation of

authority to the Board, we may only refer the case to the Secretary if a majority of

the Board determines that the case involves: (1) a question of law, (2) that is of

“exceptional importance,” and (3) that warrants Secretary review.10 If the Board

refers the matter to the Secretary, the Secretary retains the discretion to decline,

accept, or take no action on the Board’s referral, as the Secretary deems

appropriate.11

Neither the Board nor the Secretary have precisely defined “exceptional

importance.” Respondent asserts that the Constitutional issue presented is a matter

of “exceptional importance” warranting Secretary review.12 Complainant counters

that because of a recent “slew of Jarkesy-related attacks,” Respondent’s argument to

the Secretary is common and is, per the Supreme Court, a “standard” question of

administrative and constitutional law, detached from considerations of agency

policy.13 Thus, Complainant contends this issue is, by definition, “unexceptional.”14

While we recognize and appreciate Complainant’s argument,15 given the

Constitutional issues involved, the Board has voted to refer this matter to the

Secretary who may, in her complete discretion, decline, accept, or take no action on

Secretary’s Order No. 01-2020 at ¶6(b)(1).

Id.

Petition for Secretarial Review at 2-3.

Response to BNSF’s Petition for Further Review at 6 (citing Axon Enter. v. FTC, 598

U.S. 175, 178 (2023)).

Id.

Indeed, the Board has received several Jarkesy-based challenged in the last year

under various whistleblower and immigration enforcement programs adjudicated by the

ARB.

the Board’s referral. To the extent the Secretary accepts this case for review, the

Board offers the following analysis for the Secretary’s consideration.

DISCUSSION

1. FRSA, Jarkesy, and Respondent’s Constitutional Challenge

A. Overview of the FRSA

Congress has explicitly delegated to the Secretary of Labor authority over a

host of whistleblower and anti-retaliation laws dealing with various sectors and

industries, including railroads,16 commercial trucking,17 airlines,18 public

transportation,19 maritime and shipping,20 automotive,21 securities and finance,22

food safety,23 pipeline safety,24 and nuclear energy and the environment.25 The

thrust of each of these statutes is the same—to protect the safety and security of the

American workforce and public by offering protection to those who would “blow the

whistle” on hazardous, deadly, and/or illegal conditions and conduct.

Congress enacted the FRSA in 1970 “to promote safety in all areas of railroad

operations and to reduce railroad-related accidents, and to reduce deaths and

injuries to persons and to reduce damage to property caused by accidents involving

FRSA, 49 U.S.C. § 20109; 29 C.F.R. Part 1982.

Surface Transportation Assistance Act, 49 U.S.C. § 31105; 29 C.F.R. Part 1978.

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century,

49 U.S.C. § 42121; 29 C.F.R. Part 1979.

National Transit Systems Security Act, 6 U.S.C. § 1142; 29 C.F.R. Part 1982.

Seaman’s Protection Act, 46 U.S.C. § 2114; 29 C.F.R. Part 1986.

Motor Vehicle and Highway Safety Improvement Act of 2012, Section 31307 of the

Moving Ahead for Progress in the 21st Century Act, 49 U.S.C. § 30171; 29 C.F.R. Part 1988.

Sarbanes-Oxley Act, 18 U.S.C. § 1514A; 29 C.F.R. Part 1980; Consumer Financial

Protection Act, 12 U.S.C. § 5567; 29 C.F.R. Part 1985.

Food Safety Modernization Act, 21 U.S.C. § 399d; 29 C.F.R. Part 1987.

Pipeline Safety Improvement Act, 49 U.S.C. § 60129; 29 C.F.R. Part 1981.

Energy Reorganization Act, 42 U.S.C. § 5851; Clean Air Act, 42 U.S.C. § 7622;

Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.

§ 9610; Federal Water Pollution Control Act, 33 U.S.C. § 1367; Safe Drinking Water Act,

42 U.S.C. § 300j-9(i); Solid Waste Disposal Act, 42 U.S.C. § 6971; Toxic Substances Control

Act, 15 U.S.C. § 2622; 29 C.F.R. Part 24.

any carrier of hazardous materials.”26 To this end, the FRSA includes a robust

whistleblower protection and anti-retaliation program, which provides that a

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

way discriminate against an employee if such discrimination is due, in whole or in

part,” to the employee engaging in any one of the numerous protected activities.27

As stated by OSHA, “FRSA promotes safety in railroad operations and reduces

railroad-related accidents by protecting employees from retaliation for engaging in

protected activities . . . .”28

The activities protected by the FRSA are enumerated in the statute and

include various activities relating to safety and security on the nation’s railways.

They include: (1) providing information or directly assisting in any investigation

regarding conduct which the employee reasonably believes constitutes a violation of

any Federal law, rule, or regulation relating to railroad safety or security;

(2) providing information or directly assisting in any investigation regarding

conduct which the employee reasonably believes constitutes gross fraud, waste, or

abuse of Federal grants or other public funds intended to be used for railroad safety

or security; (3) refusing to violate or assist in the violation of any Federal law, rule,

or regulation relating to railroad safety or security; (4) notifying, or attempting to

notify, the railroad carrier or the Secretary of Transportation of a work-related

personal injury or work-related illness; (5) cooperating with a safety or security

investigation by the Secretary of Transportation, the Secretary of Homeland

Security, or the National Transportation Safety Board; (6) furnishing information to

the Secretary of Transportation, the Secretary of Homeland Security, the National

Transportation Safety Board, or any Federal, State, or local regulatory or law

enforcement agency relating to any accident or incident resulting in injury or death

to an individual or damage to property occurring in connection with railroad

transportation; (7) reporting, in good faith, a hazardous safety or security condition;

(8) refusing to work when confronted by a hazardous safety or security condition

related to the performance of the employee’s duties; and (9) refusing to authorize

the use of any safety-related equipment, track, or structures, if the employee is

responsible for the inspection or repair of the equipment, track, or structures and

Federal Railroad Safety Act of 1970, Pub. L. No. 91-458, § 101, 84 Stat. 971, 971

(codified as amended at 49 U.S.C. § 20101).

49 U.S.C. § 20109(a).

Investigator’s Desk Aid to the Federal Railroad Safety Act (FRSA) Whistleblower

Protection Provision (2019), https://www.osha.gov/sites/default/files/FRSA-Desk-AidFINAL-12-20-2019.pdf.

the employee believes that the equipment, track, or structures are in a hazardous

safety or security condition.29

The FRSA and its implementing regulations provide for a carefully crafted

adjudication process that whistleblowers must follow when raising a complaint

under the statute.30 Complaints are routed, in the first instance, through the

Department of Labor to allow the Department the opportunity to investigate the

complaint, intervene where appropriate, and adjudicate the dispute.

Any employee who alleges a violation of the FRSA’s anti-retaliation

provisions must first file a complaint with the Secretary of Labor, via OSHA.31

OSHA investigates the complaint to determine whether there is reasonable cause to

believe that retaliation occurred.32 If OSHA finds reasonable cause to believe that

retaliation occurred, it will issue findings and a preliminary order stating the relief

to be provided.33 The relief may include reinstatement, back pay, compensatory

damages, other equitable remedies, punitive damages not to exceed $250,000, and

reasonable attorneys’ fees and costs.34 OSHA may also assist the parties in settling

the case.35 A sizeable percentage of all cases filed with OSHA are resolved at this

stage of the adjudicatory process with the Department’s early involvement.36

49 U.S.C. § 20109(a)-(b).

The FRSA adopts the rules and procedures set forth in the Wendell H. Ford Aviation

Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. § 42121(b). 49 U.S.C.

§ 20109 (d)(2).

49 U.S.C. §§ 20109(d)(1); 42121(b)(1); 29 C.F.R. § 1982.103.

49 U.S.C. § 42121(b)(2)(A); 29 C.F.R. § 1982.104(b)-(e).

49 U.S.C. § 42121(b)(2)(A); 29 C.F.R. § 1982.105(a).

49 U.S.C. § 20109(e); 29 C.F.R. § 1982.105(a)(1).

49 U.S.C. § 42121(b)(3)(A); 29 C.F.R. § 1982.111(d)(1). Nearly 18% of all FRSA

complaints filed with OSHA in Fiscal Year 2023 settled without further adjudication.

OHSA WHISTLEBLOWER STATISTICS FY2018-FY2023,

https://www.whistleblowers.gov/factsheets_page/statistics/FY2023 (last visited June 23,

2025).

OSHA statistics reflect that it issued 177 total determinations in FRSA cases in

Fiscal Year 2023. Id. The Office of Administrative Law Judges docketed 73 FRSA cases

(approximately 41% of the total disposed of by OSHA) in Fiscal Year 2023.

Either the employee or the employer may object to OSHA’s findings within 30

days and request a hearing before an ALJ.37 Although the employee and the

employer are parties to the action, the Assistant Secretary for Occupational Safety

and Health may also, in her discretion, participate as a party or as an amicus

curiae.38

The ALJ then conducts an adversarial, evidentiary, de novo proceeding in

which the parties have the opportunity to exchange discovery and introduce

evidence and testimony at a trial.39 If the ALJ determines that the employee has

demonstrated by a preponderance of the evidence that protected activity was a

contributing factor in the adverse action alleged in the complaint, and that the

employer has not demonstrated by clear and convincing evidence that it would have

taken the same adverse action in the absence of any protected activity, the ALJ, like

OSHA, may order reinstatement, back pay, compensatory damages, other equitable

remedies, punitive damages, and reasonable attorneys’ fees and costs.40

Either party may then appeal the ALJ’s decision to the ARB within 14 days.41

The ARB reviews the record prepared by the ALJ,42 the petition for review, and the

parties’ briefs, and issues a decision on behalf of the Secretary.43 As with OSHA and

the ALJ, the ARB may order reinstatement, back pay, compensatory damages,

other equitable remedies, punitive damages, and reasonable attorneys’ fees and

costs.44

29 C.F.R. § 1982.105(c), .106(a). If objections are not filed, OSHA’s findings become

the final order of the Secretary. Id. § 1982.105(c).

Id. § 1982.108(a)(1).

Id. § 1982.107.

Id. § 1982.109(a)-(b), (d).

Id. § 1982.109(e), .110(a). If an appeal is not filed, the ALJ’s decision becomes the

final order of the Secretary. Id. § 1982.109(e).

The ARB reviews questions of fact under a substantial evidence standard, and

reviews questions of law de novo. Id. § 1982.110(b); Klinger v. BNSF Ry. Co., ARB No.

2023-0003, ALJ No. 2016-FRS-00062, slip op. at 5 (ARB July 23, 2024) (citations omitted).

29 C.F.R. § 1982.110(a)-(c).

Id. § 1982.110(d).

Either party may appeal the ARB’s decision to an appropriate United States

Court of Appeals within 60 days.45 Additionally, parties may request, and the

Secretary in her discretion may take, further review of the ARB’s decision.46 Parties

may also settle their case at any point during the adjudication phase, subject to

approval by the ALJ or ARB, as appropriate.47 If the Secretary has not issued a

final order within 210 days of the filing of the original OSHA complaint, the

employee may also bring a de novo action in the appropriate United States District

Court.48

B. SEC v. Jarkesy

Last year, the Supreme Court decided SEC v. Jarkesy, holding that an

administrative action brought by the Securities and Exchange Commission (SEC)

against George Jarkesy was unconstitutional.49 In that case, the SEC accused

Jarkesy of violating antifraud provisions of the Securities Act, the Securities and

Exchange Act, and the Investment Advisers Act, and issued a preliminary order

imposing civil money penalties (CMPs).50

At that point, the SEC had a choice—it could either pursue the action against

Jarkesy through its own internal adjudicatory proceedings, or it could bring the

same action in federal court.51 The SEC opted to proceed internally with an

administrative tribunal.52 An SEC ALJ heard the matter and issued an initial

agency decision in favor of the SEC.53 The Commission then reviewed the ALJ’s

decision and found Jarkesy liable for securities fraud.54 The final order imposed a

CMP of $300,000 on Jarkesy, among other sanctions.55

49 U.S.C. § 20109(d)(4); 29 C.F.R. § 1982.112(a).

Secretary’s Order No. 01-2020 at ¶6.

49 U.S.C. § 42121(b)(3); 29 C.F.R. § 1982.111(d)(2).

49 U.S.C. § 20109(d)(3); 29 C.F.R. § 1982.114(a).

603 U.S. at 140-41.

Id. at 118-19.

Id. at 116-17.

Id. at 119.

Id.; Jarkesy v. SEC, 34 F.4th 446, 450 (5th Cir. 2022).

Jarkesy, 603 U.S. at 119.

Id.

Jarkesy petitioned for review in the Fifth Circuit Court of Appeals. A divided

panel granted the petition and vacated the final order, concluding that Jarkesy was

“deprived of [his] constitutional right to a jury trial.”56 The SEC then petitioned for

certiorari. A divided Supreme Court affirmed the Fifth Circuit.

Consistent with precedent, the Jarkesy Court split the issue presented into

two questions: first, whether the SEC adjudication “implicated” the Seventh

Amendment right to a jury trial, and, second, if it did, whether the “‘public rights’

exception to Article III jurisdiction appli[ed].”57

On the first issue—whether the action “implicated” the Seventh

Amendment—the Seventh Amendment extends to a statutory claim if it is “legal in

nature,” as opposed to equitable in nature.58 To determine whether a claim is “legal

in nature,” courts must consider both (1) the nature of the cause of action, and

(2) the remedy it provides.59

Regarding the nature of the cause of action, Supreme Court precedent

dictates that courts must “compare the statutory action to 18th-century actions

brought in the courts of England prior to the merger of courts of law and equity.”60

Only if the cause of action “was tried at law at the time of the founding or is at least

analogous to one that was,” will it be considered “legal in nature” and implicate the

right to a jury trial.61

Regarding the remedy, which the Supreme Court considers the more

important factor, courts must likewise consider whether the remedy sought is legal

or equitable in nature.62 In Jarkesy, the Court recognized that a cause of action does

not become “legal in nature” simply because it seeks monetary relief. Instead, what

matters is whether the monetary remedy is designed to punish or deter the

Jarkesy, 34 F.4th at 451.

Jarkesy, 603 U.S. at 120.

Id. at 122.

Id. at 122-23.

Tull v. U.S., 481 U.S. 412, 417 (1987).

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 708 (1999)

(citation and quotation omitted).

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989).

wrongdoing—which would make it a legal remedy—or whether it instead is a makewhole remedy designed to “restore the status quo”—which would make it an

equitable remedy.63 If the monetary relief “serve[s] a remedial purpose”—i.e., it

makes the complainant whole—the Seventh Amendment is not implicated.64

If, “on balance,” the nature of the cause of action and the remedy sought

implicate the Seventh Amendment, the court must next determine whether the case

falls under the public rights exception.65 Under the public rights exception,

“Congress may assign and has assigned resolution of the relevant claim to a nonArticle III adjudicative body that does not use a jury as factfinder.”66

In Jarkesy, the Supreme Court explained that “public rights” are those that

“historically could have been determined exclusively by [the executive and

legislative] branches.”67 In contrast, “private rights” are “made of the stuff of the

traditional actions at common law tried by the courts at Westminster in 1789.”68

However, seemingly “private rights” adjudicated between private parties may still

fall within the “public rights” exception. In prior cases, the Court has stated that

the crucial question in such cases, where the government is not a party to the

action, is whether “Congress, acting for a valid legislative purpose pursuant to its

constitutional powers under Article I, [has] create[d] a seemingly ‘private’ right that

is so closely integrated into a public regulatory scheme as to be a matter

Jarkesy, 603 U.S. at 123.

Id. (citation and quotation omitted).

Granfinanciera, 492 U.S. at 42.

Id.; accord id. at 51 (“Congress may devise novel causes of action involving public

rights free from the strictures of the Seventh Amendment if it assigns their adjudication to

tribunals without statutory authority to employ juries as factfinders.”); Atlas Roofing Co. v.

Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 455 (1977) (“[W]hen Congress

creates new statutory ‘public rights,’ it may assign their adjudication to an administrative

agency with which a jury trial would be incompatible, without violating the Seventh

Amendment’s injunction that jury trial is to be ‘preserved’ in ‘suits at common law.’ . . . This

is the case even if the Seventh Amendment would have required a jury where the

adjudication of those rights is assigned instead to a federal court of law instead of an

administrative agency.”).

Jarkesy, 603 U.S. at 128 (citation and quotations omitted).

Id. at 127-28 (citations and quotations omitted).

appropriate for agency resolution with limited involvement by the Article III

judiciary.”69

Applying this framework, the Jarkesy Court first considered whether the

SEC fraud claim “implicated” the Seventh Amendment. On this issue, the Court

determined that “the remedy is all but dispositive.”70 For the alleged fraud, the SEC

sought CMPs to punish and deter Jarkesy, rather than to restore the status quo. In

particular, the Supreme Court observed that the statute tied the availability of

CMPs to the defendant’s culpability, deterrence, and recidivism, evidencing a “need

to punish the defendant rather than to restore the victim . . . .”71 The Supreme

Court also determined that the nature of the statutory fraud claim at issue

“confirm[ed]” that the action was “legal in nature.”72 The Court determined there

was a “close relationship between the causes of action in this case and common law

fraud . . . .”73

Having found that the case “implicated” the Seventh Amendment, the

Supreme Court turned to the question of whether the cause of action was subject to

the public rights exception.74 The Supreme Court determined that the SEC’s action

against Jarkesy “target[ed] the same basic conduct as common law fraud,

employ[ed] the same terms of art, and operat[ed] pursuant to similar legal

principles.”75 Thus, the case involved purely “private rights,” that must proceed in

an Article III court.

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 593-94 (1985) (emphasis

added).

Jarkesy, 603 U.S. at 123.

Id. at 123-24.

Id. at 125.

Id.

Id. at 127.

Id. at 134 (citation omitted).

C. Respondent’s Argument

Relying heavily on Jarkesy,76 Respondent contends that the FRSA’s agency

adjudication scheme violates the Seventh Amendment because it deprives

Respondent of a jury trial.77 First, Respondent argues that a retaliation claim under

the FRSA is “legal in nature.” It asserts that a FRSA retaliation claim is, “at its

core, a tort claim,” which requires a jury trial under common law.78 Respondent also

argues that the FRSA whistleblower provision provides “legal” remedies.79 Thus, it

argues that the FRSA, like the statutory fraud claims in Jarkesy, implicates the

Seventh Amendment. Respondent also argues that FRSA whistleblower claims do

not involve “public rights,” as they concern “a dispute between two private parties

as to which any remedy or relief goes only to a private party.”80

2. The Department’s Position Has Been that Similar Anti-Retaliation

Programs Do Not Require a Jury Trial, and the Secretary Should Take

the Same Position Here

The Department, under the current Administration, has taken the position in

two recent cases in United States District Courts that anti-retaliation statutes

similar to the FRSA that require adjudication through the Department do not

In Jarkesy, the SEC served as both prosecuting party and decisionmaker in the

adjudication, and, additionally, had ultimate discretion in deciding whether to pursue the

statutory fraud claims in-house or in federal court. Id. at 116-17; see also id. at 141-43

(Gorsuch, J., concurring) (criticizing the administrative scheme, noting that the “new law

gave the SEC’s Commissioners—the same officials who authorized the suit against Mr.

Jarkesy—the power to preside over his case themselves” and that “[g]oing in, then, the odds

were stacked against Mr. Jarkesy.”). This prompted the Fifth Circuit to not only have

concerns about the implications of the Seventh Amendment, but also have concerns about

the unconstitutional delegation of legislative power to the SEC. Jarkesy, 34 F.4th at 459.

Those circumstances differ greatly from whistleblower protections programs like the FRSA,

where the Secretary, via ALJs and the ARB, generally only serves as the decisionmaker in

a defined, trial-like adjudicatory process.

Petition for Secretarial Review at 4-5.

Id. at 8-10.

Id. at 10-11.

Id. at 11-13. Respondent likewise argues that the FRSA adjudicatory scheme

violates separation of powers principles, because it should be assigned to adjudication by an

Article III court. Id. at 13-15. Respondent observes, though, that Jarkesy recognized that

the Seventh Amendment and separation-of-powers issues are largely intertwined, as both

“turn[ ] mainly on the proper reach of the ‘public rights’ doctrine . . . .” Id. at 14.

implicate or violate the Seventh Amendment and do not require jury trials, even

post-Jarkesy.81 The Board urges the Secretary to take the same position with

respect to the FRSA.

First, in 2015, Craig Watts, a poultry farmer for Perdue Farms Inc. (Perdue),

filed a retaliation complaint with OSHA under the Food Safety Modernization Act

(FSMA),82 alleging that Perdue retaliated against him after he accused the company

of sending him sick and dying birds that it refused to help treat. Second, in May

2022, two former employees of Comcast Corporation (Comcast)—Lawrence Gloss

and Travis Rosiek—filed retaliation complaints with OSHA under the SarbanesOxley Act (SOX),83 alleging that Comcast constructively discharged them after they

raised concerns that Comcast had violated federal securities laws. In 2024, Watts’s,

Gloss’s, and Rosiek’s claims were each proceeding before Department ALJs under

administrative adjudication provisions effectively identical to those under the

FRSA.

After the Supreme Court issued Jarkesy, however, Perdue and Comcast

sought to short-circuit the administrative process by filing claims in the United

States District Courts for the Eastern District of North Carolina and the Eastern

District of Virginia, respectively. Just as Respondent argues in the present case,

Perdue and Comcast argued in their respective pleadings that the Department’s

adjudication proceedings under the FSMA and SOX were unconstitutional because

they deprived the companies of their right to a jury trial under the Seventh

The Department filed the Motion to Dismiss in the Perdue Farms on March 12,

2025, under the current Administration. Government Defendant’s Motion to Dismiss, or in

the Alternative, for Summary Judgment, and Opposition to Plaintiff’s Motion for Summary

Judgment, Perdue Farms, No. 5:24-cv-00477-BO-RJ, ECF No. 54. The Department filed the

Motion to Dismiss in Comcast on October 22, 2024, under the prior Administration.

Defendant’s Motion to Dismiss, Comcast, No. 1:24-cv-01401-PTG-IDD, ECF No. 23.

However, the Department has since reaffirmed its position in support of the Motion to

Dismiss in a subsequent filing, under the current Administration. Defendant’s Response to

Plaintiff’s Notice of Supplemental Authority at 1-2, Comcast, No. 1:24-cv-01401-PTG-IDD,

ECF No. 38. The Department also moved to dismiss Perdue Farms and Comcast for lack of

jurisdiction, but that issue is not relevant here.

21 U.S.C. § 399d.

18 U.S.C. § 1514A.

Amendment.84 The Department, represented by the Department of Justice and

applying the framework articulated in Jarkesy and its predecessors, filed motions to

dismiss in both actions, arguing that the companies were not entitled to jury trials

under either statute.85

First, the Department argued that the nature of the relief sought and the

nature of the claims themselves both indicated that the FSMA and SOX were

equitable, rather than legal, in nature, and thus did not implicate the Seventh

Amendment or trigger a right to a jury trial. First, the Department argued that the

nature of the FSMA and SOX actions indicated that they were equitable in nature,

because they lacked a close analogue to a legal cause of action that existed at

common law in the 18th century when the Seventh Amendment was adopted.86 The

Department observed that “history confirms that wrongful discharge”—the closest

common law analogue the companies offered in those cases—“has no roots in 18th

century common law; rather, it is a mid-20th century innovation.”87

Regarding the relief sought, the Department observed that Jarkesy

emphasized that “[w]hat determines whether a monetary remedy is legal is if it is

designed to punish or deter the wrongdoer, or, on the other hand, solely to restore

the status quo.”88 In contrast to the CMPs at issue in Jarkesy, which were designed

to punish the offender, the FSMA and SOX both provide that a prevailing

Complaint for Declaratory and Injunctive Relief at 1-2, Perdue Farms, No. 5:24-cv00477-BO-RJ, ECF No. 6; Complaint for Declaratory and Injunctive Relief at 3, Comcast

Corp., No. 1:24-cv-01401-PTG-IDD, ECF No. 1.

Both motions remain pending.

Government Defendants’ Memorandum in Support of Their Motion to Dismiss, or in

the Alternative, for Summary Judgment, and Opposition to Plaintiff’s Motion for Summary

Judgment (Perdue Memo.) at 14-16, Perdue Farms, No. 5:24-cv-00477-BO-RJ, ECF No. 55;

Defendant’s Memorandum of Law in Support of Their Motion to Dismiss (Comcast Memo.)

at 16-17, Comcast, No. 1:24-cv-01401-PTG-IDD, ECF No. 24.

Perdue Memo. at 15 (citations omitted); accord Comcast Memo. at 16-17 (citations

and quotations omitted) (“In other words, the common law did not give Comcast’s former

employees any right to relief for whistleblower retaliation in this context. This right derives

exclusively from [SOX], which establishes an equitable cause of action and provides relief

solely to restore the status quo.”).

Perdue Memo. at 12 (quoting Jarkesy, 603 U.S. at 123); Comcast Memo. at 15

(quoting Jarkesy, 603 U.S. at 123).

whistleblower may be awarded all “relief necessary to make the employee whole.”89

Thus, the Department argued, “the statutory remedies authorized by [the FSMA

and SOX] are designed merely to ‘restore the status quo’ for the prevailing

whistleblower, so the Seventh Amendment is not implicated.”90

Accordingly, the Department argued the FSMA and SOX claims were not

“legal in nature,” and therefore did not need to be tried before a jury under the

Seventh Amendment.

Additionally and alternatively, the Department also argued that the FSMA

and SOX complaints both involved the adjudication of “public rights” that need not

be litigated before a jury in an Article III court.91 Citing Supreme Court precedent

exploring the bounds of the public rights exception, the Department argued that the

FSMA and SOX both shared common public-rights characteristics, including,

importantly, that they were “closely integrated into a public regulatory scheme.”92

Regarding the FSMA, the Department stated that the Federal Food, Drug,

and Cosmetic Act (FDCA) was intended, among other things, “to protect public

health by ensuring that foods are safe, wholesome, sanitary, and properly

labeled.”93 “Congress passed the FSMA to strengthen the FDCA and included a

variety of statutory provisions focused on preventing food-borne illness,” “to

encourage compliance and reporting of non-compliance, and to deter violations of

Perdue Memo. at 12 (citing 21 U.S.C. § 399d(b)(4)(B)); Comcast Memo. at 15 (citing

18 U.S.C. § 1514A(c)(1)-(2)). The FSMA provides that the Secretary may grant a prevailing

complainant make-whole relief in the form of an order to abate the violation; to reinstate

the whistleblower; to provide him or her with relief, including back pay, to restore the

terms, conditions, and privileges associated with his or her employment; and, in

appropriate circumstances, to reimburse reasonable attorneys’ fees and litigation costs.

21 U.S.C. § 399d(b)(3)(B)-(C). SOX similarly provides that the Secretary may grant a

prevailing complainant make-whole relief in the form of reinstatement; back pay, with

interest; and compensation for any special damages sustained as a result of the

discrimination, including reasonable attorneys’ fees and costs. 18 U.S.C. § 1514A(c)(2).

Perdue Memo. at 12 (quoting Jarkesy, 603 U.S. at 123); Comcast Memo. at 15

(quoting Jarkesy, 603 U.S. at 123).

Perdue Memo. at 16-21; Comcast Memo. at 17-20.

Perdue Memo. at 17; Comcast Memo. at 18.

Perdue Memo. at 17 (citing 21 U.S.C. § 393(b)(2)(A)).

Congress’s food safety scheme.”94 Likewise, the Department observed that SOX

“was enacted ‘[t]o safeguard investors in public companies and restore trust in

financial markets following the collapse of Enron Corporation.’”95 As with the

FSMA, “[b]ecause ‘then-existing law’ did not protect whistleblowers like those at

Enron (and those at Comcast today), Congress passed the ‘self-consciously novel’

whistleblower provisions of [SOX] to protect employees of publicly traded companies

who report fraud and violations of SEC rules and regulations internally and to the

government.”96 Thus, the Department argued that both the FSMA and SOX

established novel protections which are “so closely integrated into a public

regulatory scheme as to be a matter appropriate for agency resolution” under the

public rights exception.97

The ARB agrees with the Department’s reasoning in Perdue Farms and

Comcast, and urges the Secretary to apply the same reasoning to the similar FRSA

whistleblower program. As with the FSMA and SOX, the FRSA is not “legal in

nature,” and thus does not implicate the Seventh Amendment right to a jury trial.

Additionally, like the FSMA and SOX, the FRSA is “so closely integrated into a

public regulatory scheme as to be a matter appropriate for agency resolution” under

the public rights exception.

A. The FRSA Does Not Implicate the Seventh Amendment

As articulated in Jarkesy and as argued by the Department in Perdue Farms

and Comcast, a statutory claim does not implicate the Seventh Amendment unless

it is “legal in nature.” The FRSA is not “legal in nature,” because (1) it is not

analogous to a legal claim arising under 18th-century common law and (2) it

provides equitable remedies.

Id. (citing 21 U.S.C. §§ 341-350m, 399d(a)(1)); accord id. at 18 (citing 156 CONG.

REC. H8861, H8889 (statement of Rep. Lee)) (“Indeed, Congress identified the prior absence

of whistleblower protection as a significant deficiency in the law which increased the

potential for future ‘outbreaks’ of foodborne illness, and thus found it ‘most vital [to] afford

those people who may know information about certain food the opportunity to inform

authorities about any concerns they may have’ via Section 399d.”).

Comcast Memo. at 18-19 (quoting Lawson v. FMR LLC, 571 U.S. 429, 432 (2014)).

Id. at 19 (quoting Jarkesy, 603 U.S. at 137; Lawson, 571 U.S. at 435).

Perdue Memo. at 18 (citing Thomas, 473 U.S. at 594); Comcast Memo. at 19 (quoting

Yellow Freight Sys., Inc. v. Martin, 983 F.2d 1195, 1200-01 (2d Cir. 1993)).

i. The FRSA claim, like FSMA and SOX claims, is not analogous to a cause of

action at common law

Just like the FSMA and SOX claims in Perdue Farms and Comcast, the

FRSA retaliation claim at issue here is not closely analogous to a legal cause of

action at common law, as it existed in the 18th century.98 As the Department stated

in Perdue Farms, “history confirms that wrongful discharge has no roots in 18th

century common law; rather, it is a mid-20th century innovation.”99 The FRSA,

“bring[s] no common law soil with [it].”100 Thus, unlike in Jarkesy, there is no “close

relationship” between a FRSA whistleblower or retaliation claim and a 18th-century

common law cause of action that might render this action “legal in nature.”

Respondent attempts to draw a parallel between a FRSA retaliation claim

and a traditional tort claim.101 The defendant made the same argument in Perdue

Farms, even citing many of the same cases Respondent cites here.102 The

Department was not persuaded by the defendant’s analogy in that case, and should

not change its position with respect to the FRSA claim here.103 As the Department

Respondent cites authority for the proposition that wrongful discharge claims are

“a tort so widely accepted in American jurisdictions today we are confident that it has

become part of our evolving common law.” Petition for Secretarial Review at 8 (citations

omitted). Whether it has become part of the common law is not relevant for the Seventh

Amendment analysis; instead, as the Supreme Court has emphasized, the cause of action

must have existed in (or have a close analogue to) common law at the time the Seventh

Amendment was adopted to implicate the right to a jury trial. Tull, 481 U.S. at 417-18.

And, contrary to the authority cited by Respondent in its Petition for Secretarial Review,

some jurisdictions, like those in Perdue Farms and Comcast, do not recognize a common law

wrongful discharge claim, even today.

Perdue Memo. at 15 (citing Joan M. Krauskopf, Employment Discharge: Survey and

Critique of the Modern At Will Rule, 51 UMKC L. REV. 189, 232 (1983); Donald G. Kempf,

Jr. & Robert L. Taylor, Wrongful Discharge: Historical Evolution, Current Developments,

and a Proposed Legislative Solution, 28 SAN DIEGO L. REV. 117, 121-23 (1991)); accord

Comcast Memo. at 16-17.

Jarkesy, 603 U.S. at 137. In this way, this case is akin to Atlas Roofing, involving

the Occupational Safety and Health Act (OSH Act). 430 U.S. 442. Similar to how the

Jarkesy Court later characterized the OSH Act, the FRSA “did not borrow its cause of

action from the common law.” Jarkesy, 603 U.S. at 136.

100

101

Petition for Secretarial Review at 8-10.

Plaintiff Perdue Farms Inc.’s Memorandum in Support of its Motion for Summary

Judgment at 13-15, Perdue Farms, No. 5:24-cv-00477-BO-RJ, ECF No. 49.

102

103

Perdue Memo. at 14-16.

recognized in Perdue Farms and Comcast, the common law of the 18th century did

not give employees any right to relief for whistleblower retaliation in this, or any

similar context. The right to raise a retaliation claim, instead, derives entirely from

the FRSA—a purely modern creation. Thus, the FRSA is not closely analogous to a

cause of action at common law, as it existed in the 18th century.

ii. The FRSA claim, like the FSMA and SOX claims, provides equitable

remedies

As the Supreme Court stated in Jarkesy, “[w]hat determines whether a

monetary remedy is legal is if it is designed to punish or deter the wrongdoer, or, on

the other hand, solely to ‘restore the status quo.’”104 Like the FSMA and SOX, the

FRSA provides make-whole relief that is designed to “restore the status quo” to a

prevailing complainant. Thus, it does not implicate the Seventh Amendment.

The FRSA provides that “[a]n employee prevailing in any action under [the

FRSA] shall be entitled to all relief necessary to make the employee whole.”105

This language tracks almost verbatim the remedial provisions under both the

FSMA (“The court shall have jurisdiction to grant all relief necessary to make

the employee whole . . . .”106) and SOX (“An employee prevailing in any action

under [SOX] shall be entitled to all relief necessary to make the employee

whole.”107). The specific remedies identified in the FRSA also largely track those

identified in the FSMA and SOX. For example, all three statutes provide that a

prevailing complainant should be reinstated and should receive back pay.108

All three statutes also provide for classes of compensatory damages to make the

employee whole after suffering unlawful discharge or other retaliation.109

104

Jarkesy, 603 U.S. at 123 (quoting Tull, 481 U.S. at 422).

105

49 U.S.C. § 20109(e)(1) (emphasis added).

106

21 U.S.C. § 399d(b)(4)(B) (emphasis added).

107

18 U.S.C. § 1514A(c)(1).

18 U.S.C. § 1514A(c)(2)(A)-(B); 21 U.S.C. § 399d(b)(3)(B)(ii), (b)(4)(B)(i)-(ii); 49 U.S.C.

§ 20109(e)(2)(A)-(B).

108

18 U.S.C. § 1514A(c)(2)(C) (providing for “compensation for any special damages

sustained as a result of the discrimination”); 21 U.S.C. § 399d(b)(3)(B)(iii) (providing for

“compensatory damages”), (b)(4)(B)(iii) (providing for “compensation for any special

damages sustained as a result of the discharge or discrimination”); 49 U.S.C.

§ 20109(e)(2)(C) (providing for “compensatory damages, including compensation for any

special damages sustained as a result of the discrimination”).

109

In Perdue Farms and Comcast, the Department argued that these precise

remedies are the type of make-whole relief that fall outside the ambit of the

Seventh Amendment.110 The Department’s position is consistent with Jarkesy, and

should be extended to the FRSA here. These remedies, unlike the penalties

identified in Jarkesy that were characterized by culpability and deterrence, are

designed to restore a prevailing complainant to the status quo ante. They attempt,

in equity, to place him or her back into the position he or she would have been in

but-for the retaliation. As the Department stated in Perdue Farms and Comcast,

these remedies are “purely equitable when . . . they are statutorily made an integral

part of overall relief designed to make an employee whole.”111 Indeed, Respondent

does not challenge the widely-accepted fact that reinstatement and back pay, at the

very least, are equitable remedies.

Of course, a prevailing complainant in an action under the FRSA may also

recover punitive damages, a remedy which is not available under the FSMA or

SOX.112 We recognize, as Respondent argues in its Petition for Secretarial Review,

that punitive damages are likely a legal remedy, as defined in Jarkesy and its

predecessors, because such damages are designed to punish and deter the

respondent, rather than to make the complainant whole.113 However, the

availability of punitive damages, in and of itself, does not mean that FRSA claims

are facially unconstitutional or must be adjudicated before a jury under the Seventh

Amendment. As noted above, it is well-settled that Congress may properly assign

claims involving public rights to adjudication by an executive agency, even if those

110

Perdue Memo. at 11-14; Comcast Memo. at 15-16.

Perdue Memo. at 12 (citing West v. Gibson, 527 U.S. 212, 217 (1999); Chauffeurs,

Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 572 (1990)); Comcast Memo. at

15 (same).

111

112

49 U.S.C. § 20109(e)(3).

See Petition for Secretarial Review at 10-11. Respondent argues that the statutory

compensatory damages are also legal in nature. Id. As noted above, however, the

Department has taken the position in Perdue Farms and Comcast that similar

compensatory damages provisions are equitable in nature. See also Int’l Union of Operating

Eng’rs, Stationary Eng’rs Local 39 v. Nat’l Lab. Relations Bd., 127 F.4th 58, 81-83 (9th Cir.

2025) (affirming NLRB’s position that damages for “direct or foreseeable pecuniary harms

suffered by affected” persons is a type of make-whole relief, consistent with and vindicating

public rights). We acknowledge this area is unsettled.

113

claims might otherwise be legal in nature.114 As set forth in Section 2.B., infra,

FRSA retaliation claims, like the FSMA and SOX retaliation claims in Perdue

Farms and Comcast, involve public rights and are properly assigned to the

Secretary for agency adjudication, even if they involve claims featuring legal

remedies.115

Granfinanciera, 492 U.S. at 42 n.4 (“If a claim that is legal in nature asserts a

‘public right,’ . . . then the Seventh Amendment does not entitle the parties to a jury trial if

Congress assigns its adjudication to an administrative agency . . . .”).

114

Additionally, claims under the FRSA in which complainants do not request punitive

damages, and instead only request the other, equitable remedies available under the

statute, can still be adjudicated internally at the Department of Labor without a jury.

Federal courts routinely recognize that claims under which both equitable and legal

remedies are typically available and which would otherwise implicate the Seventh

Amendment right to a jury trial may be adjudicated without a jury where the complainant

only seeks equitable relief. E.g., La Dolfina S.A., LLC v. Meeker, No. 20-82231-CIVCANNON/Reinhart, 2024 WL 3299559, at *1 (S.D. Fla. Apr. 1, 2024) (citations omitted)

(“Plaintiffs have withdrawn their request for monetary damages and now seek only

equitable relief . . . . And because there is no Seventh Amendment right to a jury for purely

equitable claims, the Court must adjudicate those claims . . . .”); Chevron Corp. v. Donziger,

No. 11 Civ. 0691 LAK, 2013 WL 5526287, at *2 (S.D.N.Y. Oct. 7, 2013) (citations and

quotations omitted) (“[I]t is well settled that when a party withdraws its damages claims

and pursues only equitable relief, a jury trial is no longer available and issues must be tried

by the court. Given Chevron’s unequivocal commitment to seek in this action only equitable

relief, that is the end of the matter.”); see also Del Monte Dunes at Monterey, 526 U.S. at

726 n.1 (Scalia, J., concurring) (citations omitted) (“Since the merger of law and equity, any

type of relief, including purely equitable relief, can be sought in a tort suit—so that I can

file a tort action seeking only an injunction against a nuisance. If I should do so, the fact

that I seek only equitable relief would disentitle me to a jury . . . .”). Thus, although

Complainant sought punitive damages here, complainants in FRSA actions generally are

free to seek only equitable remedies while eschewing punitive or other legal damages.

Those claims, then, can be properly adjudicated by the Department of Labor without a jury,

consistent with Constitutional principles.

115

Likewise, the Department may decline to issue punitive or other legal damages, and

only issue equitable damages, to the extent it, or a federal court of competent jurisdiction,

determines legal damages cannot be properly awarded without a jury trial under the

Seventh Amendment. Indeed, the Department took this very position in Perdue Farms,

stating that, even if it were determined that a SOX claim included both equitable and legal

components and thus implicated the Seventh Amendment, “[a]ny relief should be limited to

enjoining DOL from imposing legal remedies administratively, allowing the administrative

proceeding to continue as to all other remedies.” Perdue Memo. at 21. Consistent with this

theory, the ARB is aware of at least one ALJ who declined to issue punitive damages in a

claim arising under the National Transit Systems Security Act of 2007, another antiretaliation statute similar to the FRSA, based on his reading of Jarkesy, but awarded other,

equitable remedies available under the statute, including reinstatement, back pay, and

B. The FRSA Falls Under the Public Rights Exception

Finally, the FRSA, like the FSMA and SOX, falls within the public rights

exception, allowing it to be properly adjudicated by the Secretary even if it might

otherwise implicate the Seventh Amendment. As noted above, the Supreme Court

has long-recognized that “Congress, acting for a valid legislative purpose pursuant

to its constitutional powers under Article I, may create a seemingly ‘private’ right

that is so closely integrated into a public regulatory scheme as to be a matter

appropriate for agency resolution with limited involvement by the Article III

judiciary.”116 In such cases, even private disputes between parties that might

otherwise be considered “legal in nature” may be properly assigned for agency

adjudication, without a jury and without violating the Constitution.117

In Thomas v. Union Carbide Agricultural Products Co.,118 for example, the

Supreme Court held that a seemingly “private” cause of action litigated strictly

between two private parties and involving a matter of compensation to be paid from

one private party to the other, fell within the public rights exception. The Federal

Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires manufacturers

seeking to register a pesticide to submit research data to the Environmental

Protection Agency (EPA) concerning the product’s health, safety, and environmental

effects.119 The EPA may use previously submitted data when considering a new

application for registration of a similar product by another applicant, if the new

applicant compensates the original applicant for the use of their data.120 In the

non-economic compensatory damages. Inganamorte v. MTA Long Island R.R., ALJ No.

2022-NTS-00002, slip op. at 46-51 (ALJ Oct. 31, 2024). Thus, even accepting Respondent’s

argument that some of the relief provided by the FRSA is legal in nature, there is no basis

to declare the FRSA facially unconstitutional in its entirety.

116

Thomas, 473 U.S. at 593-94.

Id.; see also Granfinanciera, 492 U.S. at 53-55 (reaffirming that disputes between

private parties may nonetheless involve public rights).

117

As noted by the dissent in Jarkesy, the majority did not substantively discuss, let

alone disturb or overrule, Thomas or cases like it in which the Supreme Court held that a

private federally created action that was closely integrated into a public regulatory scheme

could be adjudicated without a jury in a non-Article III forum. Jarkesy, 603 U.S. at 185

(Sotomayor, J., dissenting). In fact, the majority specifically noted that it was not

attempting to “definitively explain” the distinction between public and private rights in

Jarkesy. Id. at 131.

118

119

Thomas, 473 U.S. at 571.

120

Id. at 572.

event of a dispute between the parties as to the proper amount of compensation,

FIFRA required the parties to engage in binding arbitration, subject to limited

judicial review.121 A manufacturer challenged the statutory arbitration provision,

arguing, as Respondent does here, that the statute violated Article III of the

Constitution by assigning adjudication of a private right to a non-Article III

tribunal.122

The Supreme Court rejected the manufacturer’s argument, finding that the

arbitration provision fell within the public rights exception. Critically, the Supreme

Court recognized that although the arbitration was, on the surface, conducted

between private parties and concerned the compensation owed from one litigant to

the other in a private transaction, the right created by FIFRA “bears many of the

characteristics of a ‘public’ right.”123 The use of data to support applications, the

Supreme Court explained, “serves a public purpose as an integral part of a program

safeguarding the public health.”124 The Supreme Court elaborated:

The near disaster of the FIFRA 1972 amendments [before

binding arbitration was required] and the danger to public

health of further delay in pesticide registration led

Congress to select arbitration as the appropriate method of

dispute resolution. Given the nature of the right at issue

and the concerns motivating the Legislature, we do not

think this system threatens the independent role of the

Judiciary in our constitutional scheme.[125]

The Department has taken the same view of the FSMA and SOX,

categorizing both anti-retaliation statutes as integral to regulatory schemes

safeguarding the public.126 With respect to the FSMA, the Department explained

that whistleblower protection was key to “encourage compliance and reporting of

non-compliance, and to deter violations of Congress’s food safety scheme,” and to

correct “a significant deficiency in the law which increased the potential for future

121

Id. at 573.

122

Id. at 576.

123

Id. at 589.

124

Id.

125

Id. at 590.

126

Perdue Memo. at 16-21; Comcast Memo. at 17-20.

‘outbreaks’ of foodborne illness.”127 Likewise, with respect to SOX, the Department

explained that whistleblower protection was key to breaking the “corporate code of

silence that discouraged employees from reporting fraudulent behavior,” and

correcting a “significant deficiency in the law, for in complex securities fraud

investigations, employees are [often] the only firsthand witnesses to the fraud.”128

The same goals underlie the FRSA. The FRSA was first enacted in 1970 “to

promote safety in all areas of railroad operations and to reduce railroad-related

accidents . . . .”129 The first iteration of the FRSA, though, did not include any

whistleblower protection or anti-retaliation provisions. In 1980, Congress amended

the FRSA to include an anti-retaliation provision, subject to mandatory dispute

resolution under the Railway Labor Act.130 However, this early anti-retaliation

protection was ineffectual. Between 1980 and 2007, only seven retaliation cases

were filed, and only one was successful.131

Consequently, Congress held a series of hearings in 2007 “signal[ing]

increasing public and Congressional concern with rail safety, including chronic

under-reporting of rail injuries, widespread harassment of employees reporting

work-related injuries, and interference with medical treatment of injured

employees.”132 Testimony and reports before Congress identified numerous

management policies that deterred employees from reporting on-the-job injuries.133

As one commentator summarized:

As a result of these hearings, the House Transportation

and Infrastructure Committee received evidence

confirming that (1) railroad accidents, incidents, and

127

Perdue Memo. at 17-18 (citations omitted).

128

Comcast Memo. at 19 (citations and quotations omitted).

Federal Railroad Safety Act (FRSA) of 1970, Pub L. No. 91-458, § 101, 84 Stat. 971,

971 (codified as amended at 49 U.S.C. § 20101).

129

Federal Railroad Safety Act (FRSA) of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811,

1815 (codified as amended at 49 U.S.C. § 20109(a)).

130

Christopher W. Bowman, Whistleblower Protections of the Federal Rail Safety Act:

An Overview, 8 WM. MITCHELL J. L. & PRACTICE 1, 1 (2015) (citation omitted).

131

Santiago v. Metro-N. Commuter R.R. Co., Inc., ARB No. 2010-0147, ALJ No. 2009FRS-00011, slip op. at 12 (ARB July 25, 2012) (citing various Congressional hearings).

132

133

Id. at 12-13 (citations omitted).

injuries were being underreported to the Federal Railroad

Administration; (2) management practice of harassment of

injured railroad employees was epidemic in the railroad

industry; (3) the GAO, National Transportation Safety

Board, and Department of Transportation concluded that

inaccurate reporting compromised rail safety; and (4)

railroad employees were pressured not to report injuries by

their supervisors whose compensation was partially based

on limiting the number of FRA injury reports.[134]

The House Committee concluded that underreporting “denie[d] regulators [and

Congress] a full understanding of the nature and extent of safety problems in the

rail industry, and that is vital to improving safety.”135 Members of Congress also

expressed that reform was needed to “address[ ] long-neglected failings and

shortcomings of safety in the rail sector that will make the railroad safer in the

future; that will make jobs for workers in that sector safer in the future; [and] that

will make safer passage through towns through which railroads pass, often with

toxic substances [or] toxic chemicals.”136

Recognizing that the existing anti-retaliation measures were insufficient to

address these concerns, Congress significantly expanded whistleblower protections

with amendments to the FRSA in 2007 and 2008. Among other things, those

amendments extended FRSA liability to contractors, subcontractors, officers, and

employees of the rail carrier, expanded the scope of protected activity under the

statute, and transferred enforcement authority to the Secretary of Labor.137 As the

Board has previously observed, this history reflects “a progressive expansion of antiretaliation measures in an effort to address continuing concerns about railroad

safety and injury reporting.”138

134

Bowman, supra note 131, at 1-2 (citation omitted).

The Impact of Railroad Injury, Accident, and Discipline Policies on the Safety of

America’s Railroads Before the Comm. on Transp. & Infrastructure, 110th Cong. 1 (2007)

(statement of James Oberstar, Chairman, Comm. on Transp. & Infrastructure).

135

136

153 CONG. REC. H11671, H11671 (2007) (statement of Rep. Oberstar).

Santiago, ARB No. 2010-0147, slip op. at 13. In fact, the 2007 amendments were

part of a larger effort to revamp laws involving the security of the nation’s infrastructure.

Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53,

121 Stat. 266 (2007).

137

138

Santiago, ARB No. 2010-0147, slip op. at 15.

As with the FSMA and SOX, the history of the FRSA reflects that its antiretaliation provisions are not merely an avenue for redressing private grievances or

a claim for wrongful discharge, as asserted by Respondent; they are, instead, an

integral component of the broader public FRSA statutory scheme designed to

protect the safety and security of the nation’s railways. As Complainant aptly

summarized, “[t]hese systems are designed to protect the public and the

employees in an industry with a potential for high magnitude catastrophic

accidents.”139 Congress determined that the safety and security of the nation’s

railways would be improved if employees were empowered to report violations of the

FRSA, without fear as to whether they would be retaliated against for doing so.

Thus, the anti-retaliation provisions, though outwardly entailing litigation between

private parties, in fact are designed to protect employees who report hazardous and

deadly conditions on the nation’s railways, encourage compliance and proper

reporting of hazardous conditions, illnesses, and injuries, and deter violations of

FRSA’s railway-safety scheme.140 Consequently, the anti-retaliation provision falls

squarely within the public rights exception, which exempts these proceedings from

the requirement that they be tried before a jury in an Article III court.141

3. Federal Courts and ALJs Have Also Held that Similar Anti-Retaliation

Programs Under the Secretary’s Jurisdiction Are Not Unconstitutional

Consistent with the Department’s position in Perdue Farms and Comcast,

federal courts have concluded that whistleblower and anti-retaliation programs like

the FRSA that have been delegated to the Secretary of Labor by Congress may be

adjudicated internally at the Department of Labor without a jury. For example,

several District Courts, consistent with the Department’s position in Comcast, have

ruled that SOX does not implicate the Seventh Amendment right to a jury trial,

and, moreover, falls within the public rights exception. In Schmidt v. Levi Strauss

139

Response to BNSF’s Petition for Further Review at 8 (emphasis added).

See Thomas, 473 U.S. at 583 (“Many matters that involve the application of legal

standards to facts and affect private interests are routinely decided by agency action with

limited or no review by Article III courts.”), 586 (rejecting the notion that a claim must be

considered a private right unless the federal government is a party of record).

140

See Atlas Roofing, 430 U.S. at 444-45, 461 (classifying the OSH Act, which was

passed in (1) response to the “‘drastic’ national problem” of rising work-related deaths and

injuries, and (2) in recognition of the lack of adequate common-law actions to adequately

remedy protect workplace safety, as exempt from the Seventh Amendment because it

involved public rights).

141

& Co.,142 for example, the Northern District of California recognized that SOX’s

remedial provisions, which provide for reinstatement, back pay, and other “out-ofpocket” costs, were all restitutionary in nature, seeking only to “restor[e] the status

quo and order[ ] the return of that which rightfully belongs to the [plaintiff].”143

These restitutionary remedies, the court concluded, “historically . . . fall[ ] within

the realm of the court of equity.”144

The Schmidt court also determined that SOX claims fall within the public

rights exception. Like the Department in Comcast, the court determined that SOX

involves private rights that “are so closely integrated into a public regulatory

scheme that Congress’s assignment [to the Secretary] is constitutional.”145 Other

District Courts have concluded that SOX claims do not need to be tried before a

jury.146

Likewise, the Second Circuit Court of Appeals has ruled that claims arising

under the Surface Transportation Assistance Act (STAA)147 also fall within the

public rights exception.148 The Second Circuit reasoned that “[t]he public interest to

be protected in this case is safety on the nation’s highways. To protect that interest,

Congress has created an extensive public regulatory scheme that includes parts of

the STAA.”149 Thus, the Second Circuit concluded that the plaintiff’s STAA

142

621 F.Supp.2d 796 (N.D. Cal. 2008).

143

Id. at 803 (quoting Porter v. Warner Holding Co., 328 U.S. 395, 402 (1946)).

Id. (citing Porter, 328 U.S. at 402). We note that the Schmidt court determined that

a SOX retaliation claim was closely analogous to a “claim of wrongful discharge which

existed at common law,” suggesting the claim was legal in nature. Id. at 801-02. Consistent

with the Department’s reasoning in Perdue Farms and Comcast, we disagree with the

Schmidt court on that point. In any event, because the remedies were equitable in nature,

the Schmidt court determined that “a balance of the two factors weighs against there being

a right to a jury trial . . . .” Id. at 805-06.

144

Id. at 807 (“[SOX] serves to encourage compliance, encourage reporting of noncompliance, and deterring violations. Thus, [SOX] may be reasonably interpreted as being

closely integrated into a public regulatory scheme.”).

145

E.g., Skidmore v. ACI Worldwide, Inc., No. 8:08CV01, 2010 WL 2900113 (D. Neb.

July 20, 2010); Walton v. Nova Info. Sys., 514 F.Supp.2d 1031 (E.D. Tenn. 2007); Murray v.

TXU Corp., No. Civ.A.3:03-CV-0888-P, 2005 WL 1356444 (N.D. Tex. June 7, 2005).

146

147

49 U.S.C. § 31105.

148

Yellow Freight Sys., Inc. v. Martin, 983 F.2d 1195, 1200-01 (2d Cir. 1993).

149

Id.

retaliation claim “may seemingly subject [the defendant] to the enforcement of

merely private rights, [but] we hold that those rights are integrated sufficiently

closely into a public regulatory scheme as to be appropriate for agency

resolution.”150

Department ALJs have also concluded that whistleblower and antiretaliation programs like the FRSA do not implicate the Seventh Amendment and,

moreover, fall within the public rights exception. For example, ALJs have

thoroughly reviewed the anti-retaliation provisions of SOX, the FSMA, and the

Pipeline Safety Improvement Act,151 concluding that each provide make-whole,

equitable remedies and are closely integrated in public regulatory schemes.152

As the weight of this authority, and the analysis provided by each tribunal,

demonstrates, the Department’s position in Perdue Farms and Comcast is correct,

and should be extended to the FRSA as well.

4. Declaring the FRSA Unconstitutional Would Leave Complainants

Without Meaningful Recourse and Harm Railway Safety

In addition to the legal analysis set forth above, the Board notes the practical

implications of Respondent’s argument. In arguing that the FRSA is

unconstitutional, Respondent effectively asks the Secretary to cease all Department

adjudication under the statute. This would leave complainants who have been

retaliated against without any meaningful recourse or remedy. In Jarkesy, the

statutory fraud program at issue provided the SEC with the option to either pursue

a claim against the offender in-house or in federal court. While the SEC may no

longer prosecute claims in-house post-Jarkesy, the SEC retains the ability to

prosecute fraudsters in federal court. Here, though, agency adjudication is the

exclusive avenue for complainants under the FRSA. If the Secretary declines to

150

Id. at 1201.

151

49 U.S.C. § 60129.

Wyderka v. Energy Transfer Co., ALJ No. 2023-PSI-00001, slip op. at 6-10 (ALJ

Jan. 15, 2025) (Pipeline Safety Improvement Act); Slade v. Norax, LLC, ALJ No. 2024-FDA00020, slip op. at 3-6 (ALJ Oct. 11, 2024) (FSMA); Drake v. Morinda Holdings, ALJ No.

2023-SOX-00023, slip op. at 4-8 (ALJ Sept. 4, 2024) (SOX).

152

adjudicate these claims, complainants will be, effectively, left without meaningful

recourse.153

Ceasing adjudication under the statute would also harm railway safety.

As emphasized above in Section 2.B., Congress added and expanded whistleblower

protections under the FRSA to “address[ ] long-neglected failings and shortcomings

of safety in the rail sector . . . .”154 If the Department declines to adjudicate

whistleblower claims, whistleblowers like Complainant will be left without

meaningful protection, and the harms that plagued the rail sector before the antiretaliation measures were added and bolstered, including chronic and significant

underreporting of dangerous conditions and injuries, could reemerge.

5. Complainant Raises Other Arguments That May Bear on the Secretary’s

Analysis

Complainant raises additional arguments in its response in opposition to

Respondent’s Petition for Secretarial Review that may bear on the Secretary’s

analysis. For example, Complainant argues that Respondent waived its right to

raise its constitutional challenge by failing to present it either to OSHA or the ALJ,

and by raising it for the first time only in a cursory fashion before the Board.155

Additionally, Complainant contends that administrative agencies lack jurisdiction

to declare acts of Congress unconstitutional.156 Because these arguments do not

The FRSA provides that if the Secretary has not issued a final decision within 210

days after the filing of a complaint with OSHA, a complainant may remove his or her case

to federal district court. 49 U.S.C. § 20109(d)(3). Thus, if a complainant files a FRSA

complaint with OSHA and the Secretary declines to take any action on it whatsoever, the

complainant could eventually pursue his or her claims in federal court. However, this would

lead to a de facto seven-month hiatus on every single FRSA claim before it could even begin

to be adjudicated. This would be entirely inconsistent with the foundational principle of

American jurisprudence that justice delayed is justice denied.

153

154

153 CONG. REC. H11671, H11671 (2007) (statement of Rep. Oberstar).

155

Response to BNSF’s Petition for Further Review at 8-10.

Id. at 3-4. Respondent asserts that members of the Executive Branch have the power

“to decline to act under, approve, or defend in court directions from Congress to exercise the

judicial power of the United States,” and that “the President has expressly directed all

heads of executive agencies to review the legality of actions taken under their responsibility

in light of the intervening legal developments on which BNSF’s arguments rely.” Petition

for Secretarial Review at 2-3. Because the FRSA and the authority delegated to the

Secretary under the statute are consistent with the Constitution, there is no conflict with

separation of powers or the Administration’s policies.

156

directly bear on whether the issue presented is of “exceptional importance,” the

Board has elected not to address them in this case. However, the Board highlights

them because they may bear on the Secretary’s discretionary decision as to whether

to accept this case for review.

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

ANGELA W. THOMPSON

Administrative Appeals Judge

ELLIOT M. KAPLAN

Administrative Appeals Judge

THOMAS H. BURRELL

Administrative Appeals Judge

PHILIP G. KIKO

Administrative Appeals Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.