Federal Railroad Safety Act

Johnson v. NJ Transit Rail Operations, Inc., No. 17-2309 (E.D. Pa. Jan. 8, 2021) (2021 U.S. Dist. LEXIS 3339) (Memorandum)

ATTORNEY’S FEES; WHERE SEPARATE SETTLEMENTS WERE REACHED WITH TWO PLAINTIFFS REPRESENTED BY THE SAME LAW FIRM, AND ONE OF THE SETTLEMENTS RESOLVED ATTORNEY’S FEES AND EXPENSES BUT THE OTHER DID NOT, THE COURT WAS NOT PERSUADED BY DEFENDANT’S “DOUBLE DIPPING” CONTENTION AS TO SECOND PLAINTIFF’S FEES AND EXPENSES DEMAND, WHERE  THAT PLAINTIFF HAD ACHIEVED A MUCH MORE SIGNIFICANT SETTLEMENT AMOUNT, AND WHERE DEFENDANT DID NOT PRESENT EVIDENCE TO SUPPORT ITS CONTENTION THAT THE FEES SHOULD BE CUT IN HALF AND THE ATTORNEY PROVIDED A FULL ACCOUNTING OF HIS WORK ON THE TWO CLAIMS

ATTORNEY’S FEES FOR LEGISLATIVE WORK AND INTERVENTION IN OTHER CASES INVOLVING ELEVENTH AMENDMENT IMMUNITY, RESULTING IN A NEW STATE LAW PROHIBITING THE NEW JERSEY TRANSIT RAIL OPERATIONS, INC. FROM RAISING SUCH IMMUNITY AS A DEFENSE, WAS FOUND TO BE COMPENSABLE WHERE IT PERMITTED PLAINTIFF’S CASE TO PROCEED

In Johnson v. NJ Transit Rail Operations, Inc., No. 17-2309 (E.D. Pa. Jan. 8, 2021) (2021 U.S. Dist. LEXIS 3339), Plaintiffs Jenkins and Johnson filed actions against Defendant alleging FRSA violations under 49 U.S.C. § 20109.   Both cases were settled.  The Jenkins settlement resolved the question of attorney’s fees and expenses, but the Johnson settlement did not.  Accordingly, Johnson filed with the court a petition for attorney’s fees and expenses.  Defendant filed objections, all of which the court denied.  The court’s discussion focused on two of Defendant’s objections:  whether Johnson’s fee petition for his law firm, which also represented Jenkins, included double dipping, and whether Johnson’s counsel’s work in effecting a legislative change to prohibit Defendant from asserting Eleventh Amendment immunity was compensable in the instant fee petition.

Double Dipping

Jenkins and Johnson were union officers, and brought their FRSA cases using the same law firm.  Jenkins raised one claim under the FRSA, while Johnson raised two claims.  Jenkins’ claim, and one of Johnson’s claims, arose out of the same underlying facts and involved similar allegations of retaliation.  Defendant argued that Johnson’s demand for fees included work applicable to representation of Jenkins, and that the court should only award one-half of the attorney’s fee demand.  The court, however, noted that Defendant provided no evidence that the fees agreed upon for Jenkins were also intended to cover Johnson’s claims, and that Johnson provided a complete account of his counsel’s work on his two claims.  Defendant had merely provided a notation on every entry on counsel’s timesheet that involved Jenkins, and declared that Johnson’s fee should thus be cut in half.  The court found that such notations did not carry Defendant’s burden in challenging the reasonableness of the requested fee.

The court found that the existence of Jenkins's settlement did not bear on Johnson's fee petition.  The court also noted that Johnson's claims were much more extensive" than Jenkins's sole claim, and resulted in a much larger settlement amount.  The court observed that the degree of success obtained is the most critical factor determining fee petitions, noting that "[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). The court found it clear that Johnson had obtained excellent results in the instant case.

Eleventh Amendment Work

Defendant, New Jersey Transit Rail Operations, Inc., contended that Johnson should not recover fees for counsel’s legislative work and intervention in Eleventh Amendment cases.  Defendant had raised Eleventh Amendment immunity as a defense, and one of Johnson’s counsel’s responsive strategies was a successful effort to effect the New Jersey Transit Employee Protection Act, which prohibits the defense of sovereign immunity in cases involving NJ Transit Rail Operations, Inc.  This legislative effort allowed Johnson’s case to move forward, and the court determined that fees were recoverable for this work:

     Counsel may petition for fees for work that is “useful and the type ordinarily necessary to secure the final results obtained.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560-61 (1986). In Delaware Valley, the Supreme Court determined that “useful” work includes hours that “did not occur in the context of traditional judicial litigation.”  Id. (holding counsel could include time spent on regulatory work in fee petition pursuant to the Clean Air Act). Mr. Johnson has articulated the importance of counsel’s legislative work and intervention in Eleventh Amendment cases to his lawsuit. Without this work, Mr. Johnson’s lawsuit might not have gone forward. Therefore, Mr. Johnson’s counsel is entitled to recover fees for the Eleventh Amendment work.

Slip op. at 5.

Union Pacific Railroad Co. v. Brotherhood of Maintenance of Way Employes, No. 20-cv-516 (D. Neb. Jan. 7, 2021) (Preliminary Injunction)

FRSA ANTI-RETALIATION PROVISION DOES NOT PROHIBIT INJUNCTIVE RELIEF PURSUANT TO THE RAILWAY LABOR ACT AND AN EXCEPTION TO THE NORRIS-LAGUARDIA ACT TO PREVENT A THREATENED LABOR STOPPAGE RELATING TO THE ADEQUACY OF A RAILROAD’S COVID-19 RESPONSE

ASSUMING ARGUENDO THAT THE FRSA ANTI-RETALIATION PROVISION APPLIES TO UNION WORK STOPPAGES, COVID-19 FOUND NOT TO BE A WORK-SPECIFIC HAZARDOUS SAFETY CONDITION UNDER § 20109(b)(2), NOR AN IMMINENT DANGER AS PERCEIVED BY A REASONABLE PERSON UNDER THE FACTS OF THE CASE

In Union Pacific Railroad Co. v. Brotherhood of Maintenance of Way Employes, No. 20-cv-516 (D. Neb. Jan. 7, 2021), Union Pacific was granted a preliminary injunction over the union’s threat to strike over the adequacy of the railroad’s COVID-19 response.  

One of the union’s arguments was that injunctive relief  under the Railway Labor Act and an exception to the Norris-LaGuardia Act was prohibited by the anti-retaliation provision of the FRSA at 49 U.S.C. § 20109.  The union argued that the FRSA “protects its proposed strike because COVID-19 presents a hazardous condition which Union Pacific has failed to adequately address” and that “the FRSA protects the situation of a threatened mass labor strike like that in the present case.” Slip op. at 20.  The court disagreed, finding that the FRSA “is an anti-retaliation statute applicable when employees are unable to work due to hazards on the job” but that “[i]ts protections do not mention labor unions or mass labor strikes.”  Id. at 20-21.

The court further found, that even if the FRSA provision applies to threatened labor stoppages, the statutory requirements were not satisfied under the facts of the case.

First, the COVID-19 pandemic does not present a “hazardous safety or security condition related to the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(2). The pandemic is not a work-specific safety concern for the BMWED employees under the FRSA; that is, it is not a hazardous condition “related to the performance” of BMWED employees’ duties. 49 U.S.C. § 20109(b)(2) (emphasis added). Instead, the pandemic is, unfortunately, a worldwide and widespread problem confronting not just the BMWED employees, but individuals of all walks of life. Thus, it does not constitute a condition “related to the performance of the employee’s duties” for purposes of the FRSA. See, e.g., Stokes v. Se. Pennsylvania Transportation Auth., 657 F. App'x 79, 82 (3d Cir. 2016) (finding the FRSA did not apply where “the safety risk that Stokes identified was unconnected to railroad safety, and thus her refusal to appear due to a non-work-related risk to her was not covered by the FRSA.”); Ziparo v. CSX Transportation, Inc., 443 F. Supp. 3d 276, 297 (N.D.N.Y. 2020) (“‘Hazardous safety or security conditions’ have generally been found to be physical conditions that are within the control of the rail carrier employer; circumstances outside of the carrier’s control and non-work related conditions are not included.”).

     BMWED cites Kurec v. CSX Transportation, Inc., No. 518CV0670LEKTWD, 2020 WL 6484056 (N.D.N.Y. Nov. 4, 2020) for the proposition that the FRSA’s plain language does not require the hazardous safety or security condition to be under the railroad’s control. . . .  In Kurec, the railroad employee, an engineer, refused to report to work when he was intoxicated. 2020 WL 6484056, at *6. Thus, his altered state was one “related to the performance” of his job. In contrast, COVID-19 has no unique impact on BMWED employees’ job performance and thus is neither under Union Pacific’s control nor “related to the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(2). Furthermore, the Kurec court cited the Stokes decision favorably for the proposition that a claim under subsection (b)(1)(B) “requires the hazardous condition to be ‘related to the performance of the employee’s duties.’” Kurec, 2020 WL at 12, n.15 (quoting 49 U.S.C. §§ 20109(b)(1)(B)). 

     Secondly, a reasonable individual under the circumstances would not conclude that there is “an imminent danger of death or serious injury” presented by the current situation. 49 U.S.C. § 20109(b)(2). First, Union Pacific has implemented certain safety measures for the protection of its workers starting in the early days of the pandemic in March 2020. These measures included complying with CDC guidance, . . . voluntarily providing fourteen days’ paid leave for those employees directed to quarantine for a work-related exposure, instituting policies requiring social distancing and face coverings, regular cleaning of equipment, and providing hand sanitizer and wipes to employees,. . . . The evidence also shows the parties have been in regular communication regarding evolving COVID-19 protocols since March 2020. . . .  BMWED claims Union Pacific’s response has been inadequate and that the recent increase in COVID-19 cases combined with the mutation of the virus into a more transmissible strain make the safety concern urgent. . . . In light of Union Pacific’s already-implemented safety measures, on-going dialogue between the parties, and continually-evolving safety procedures, the Court finds there is no “imminent danger of death or serious injury” as defined by 49 U.S.C. § 20109(b)(2). 

     Lastly, Union Pacific’s COVID-19 response itself does not constitute a “hazardous safety or security condition” as BMWED argues. While BMWED takes issue with certain aspects of Union Pacific’s COVID-19 protocol, it does not dispute that Union Pacific has, in fact, implemented numerous safety measures, including some requested by BMWED.  . . . Furthermore, witnesses testified that Union Pacific has continued to improve its response to the pandemic, including securing higher-quality masks, locating hand sanitizer when it was in short supply, and updating social-distancing requirements as CDC guidance has evolved. BMWED seeks additional safety precautions that are either of marginal benefit because of the measures already in place or, as in the case of on-site COVID-19 testing, unworkable. Furthermore, as set forth above, BMWED’s primary demands are related to pay and leave time, not measures relating to safety and health. The differences illustrated by the evidence presented over the level of protections needed and the semantics of implementing protections and paying workers during an unprecedented health situation do not rise to the level of “hazardous” contemplated by the FRSA. 

     Accordingly, the Court finds the FRSA does not apply to the dispute at hand. Rather, the RLA governs and, as set forth above, supports the issuance of the requested injunctive relief.

Id. at 21-24 (emphasis as in original) (footnotes omitted) (citations to court filings omitted).