Harvey v. Union Pacific Railroad Co. (Board decision, May 29, 2015)

Plain-English summary

An administrative law judge found for Tommy Lee Harvey in a Federal Railroad Safety Act case against Union Pacific Railroad. The judge awarded $25,000 for emotional distress and $100,000 in punitive damages and requested an attorney fee application. Union Pacific petitioned the Board for review, then withdrew its petition and asked that the judge's order be treated as final. Union Pacific said the parties' lawyers had agreed on a fee and cost amount, but this order does not state that amount. The Board dismissed the petition as requested and stated that the judge's decision was the Department's final decision.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109 and 29 C.F.R. § 1982.110.
• Outcome: Union Pacific's appeal dismissed after withdrawal; the ALJ's $125,000 damages award became part of the Department's final decision. The fee amount is not stated in this order.
• Key point: Withdrawal ended Board review and made the judge's decision the Department's final decision without a Board merits ruling.

Full text (DOL official public release)

U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

IN THE MATTER OF:

TOMMY LEE HARVEY,
ARB CASE NO. 15-036

COMPLAINANT,
ALJ CASE NO. 2011-FRS-039

v. DATE: May 29, 2015

UNION PACIFIC RAILROAD COMPANY,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

ORDER DISMISSING PETITION FOR REVIEW

On February 12, 2015, a Department of Labor Administrative Law Judge issued a Decision and Order (D. & O.) in this case arising under the Federal Rail Safety Act of 1982 (FRSA). 1 The ALJ found in favor of Complainant Tommy Lee Harvey and ordered Respondent Union Pacific Railroad Company to pay Harvey $25,000 in compensatory damages for emotional distress and $100,000 in punitive damages and ordered Harvey’s counsel to file a fully supported application for costs and fees. 2

Union Pacific filed a timely petition for review of the ALJ’s D. & O. with the Administrative Review Board. 3 On March 11, 2015, the ARB issued a Notice of Appeal and Order Establishing Briefing Schedule and on April 15, 2015, an Order Granting Motion for Extension of Time and Re-setting the Briefing Schedule.

1
49 U.S.C.A. § 20109 (Thomson Reuters Supp. 2014). The FRSA’s implementing regulations are found at 29 C.F.R. Part 1982 (2014).
2
Harvey v. Union Pac. R.R. Co., 2011-FRS-039, slip op. at 47 (Feb. 12, 2015).
3
See Secretary’s Order No. 2-2012 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012);
29 C.F.R. § 1982.110.

USDOL/OALJ REPORTER
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On May 26, 2015, the ARB received Respondent, Union Pacific Railroad Company’s Notice of Withdrawal of Its Petition for Review, in which Respondent states its intention to withdraw its petition for review. It states that it now “asks that ALJ Gee’s Decision and Order be deemed as final such that the judgment can be satisfied” and that counsel for the parties have agreed on an amount to be paid for reasonable attorney’s fees and costs.

Accordingly, Respondent’s petition for review is DISMISSED, as requested, and the ALJ’s February 12, 2015 Decision and Order is the final decision of the Department of Labor in this matter.

FOR THE ADMINISTRATIVE REVIEW BOARD:

Janet R. Dunlop
General Counsel

USDOL/OALJ REPORTER
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