Berberich v. Kansas City Southern Ry. Co. (agency decision, November 29, 2022)

Plain-English summary

Justin Berberich appealed an administrative law judge's decision in his Federal Railroad Safety Act case against Kansas City Southern Railway Company. While the appeal was pending, he informed the Board that he had filed an action in federal district court in Kansas for a fresh review of his claim. He supplied a file-stamped complaint dated October 19, 2022. The Board held that his election to proceed in district court ended the Department of Labor's jurisdiction over the case. It dismissed the administrative appeal without deciding the underlying claim or awarding relief.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109(d)(3); 29 C.F.R. § 1982.114(a).
• Outcome: Administrative appeal dismissed after the complainant elected federal district court review.
• Key point: Exercising the statutory district court option ends the Department's jurisdiction over the administrative case.

Full text (DOL official public release)

U.S. Department of Labor            Administrative Review Board
                                    200 Constitution Ave. NW
                                    Washington, DC 20210-0001

IN THE MATTER OF:

JUSTIN BERBERICH, ARB CASE NO. 2022-0064

           COMPLAINANT,                         ALJ CASE NO.           2020-FRS-00083

     v.                                         DATE: November 29, 2022

KANSAS CITY SOUTHERN
RAILWAY COMPANY,

           RESPONDENT.

Appearances:

For the Complainant:
Nicholas D. Thompson, Esq.; Casey Jones Law Firm; Appleton,
Wisconsin

For the Respondent:
Noah K. Garcia, Esq.; The Kansas City Southern Railway Company;
Kansas City, Missouri

Before BURRELL and GODEK, Administrative Appeals Judges

                             ORDER OF DISMISSAL

PER CURIAM:

   This case arises under the employee protection provisions of the Federal

Railroad Safety Act of 1982 (FRSA).1 On September 16, 2022, Complainant filed a Petition for Review with the Administrative Review Board (Board). Complainant

1 49 U.S.C. § 20109, as implemented by 29 C.F.R. Part 1982 and 29 C.F.R. Part 18 (2021), Subpart A. requested review of the Decision and Order issued September 6, 2022, by a United States Department of Labor Administrative Law Judge.

On November 21, 2022, Complainant informed the Board that he had filed an original action with the United States District Court for the District of Kansas pursuant to 49 U.S.C. § 20109(d)(3), seeking de novo review. Complainant also filed with the Board a file-stamped copy of his district court complaint, dated October 19, 2022.

Since Complainant has chosen to proceed in district court, the Department of Labor no longer has jurisdiction over his case.2 Accordingly, we DISMISS this appeal.

SO ORDERED.

THOMAS H. BURRELL
Administrative Appeals Judge

STEPHEN M. GODEK
Administrative Appeals Judge

2 See 49 U.S.C. § 20109(d)(3) (“[I]f the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action . . . .”); see also 29 C.F.R. § 1982.114(a).