The stakes increase and the landscape changes tremendously in a whistleblower case when the Secretary of Labor (Secretary) issues a preliminary reinstatement order.  The specter of reinstatement could in some cases – especially where the whistleblower is an executive and/or there is serious acrimony – eclipse the risk of monetary awards.  And the Secretary is apt to become vigilant in seeing that the order gets enforced, the whistleblower feels empowered, and the employer scratches its head wondering how such dramatic relief could be ordered in the absence of a meaningful evidentiary hearing.  Fortunately for employers, the U.S. District Court for the District of Idaho recently held that it lacked jurisdiction to enforce a preliminary order of reinstatement in Solis v. Union Pacific Railroad Co., No. 12-cv-00394 (D. Idaho Jan. 11, 2013), an action brought under the Federal Railroad Safety Act, 49 U.S.C. § 20109 (FRSA).  This decision could have wide reaching effects because the applicable enforcement provisions are adopted by a range of whistleblower protection statutes, such as Section 806 of the Sarbanes-Oxley Act of 2002. 

More specifically, the enforcement provisions at issue in this lawsuit are found in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121, et seq. (AIR 21), which the FRSA imports.  AIR 21 authorizes OSHA to issue a preliminary order of reinstatement and only authorizes the Secretary to file a civil action to enforce final – not preliminary – orders.  Section 42121(b), sub-section (5) provides that the Secretary may file a civil action in district court “[w]henever any person has failed to comply with an order issued under paragraph (3)” and “an order issued under paragraph (3)” refers to final orders, given that sub-paragraph (b)(3) is titled “Final Order.”  In this regard, the court stressed:

Within § 42121, Congress used the language ‘order issued under paragraph (3)’ or similar language, to refer to final – not preliminary – orders.  For example, AIR 21 provides that aggrieved parties may appeal an ‘order issued under paragraph (3)’ to a federal circuit court of appeals.  See 49 U.S.C. § 42121(b)(4).  It also provides that the Secretary must assess costs and expenses against the losing party after’such order is issued under this paragraph’ (i.e., the final-order paragraph).  In both of these contexts – an appeal and a costs award – Congress was referring [to] final orders only – not preliminary orders, which are addressed in subparagraph (b)(2). …  Congress easily could have included preliminary orders by including orders ‘issued under paragraph (2).

(emphasis in original).

This decision will not be well-received by the U.S. Department of Labor (DOL), which has long (and vigorously) taken the position that preliminary reinstatement orders are not enforceable in multiple contexts, including in multiple cases and in the Interim Final Rules for the Handling of Retaliation Complaints under Section 806 of the Sarbanes-Oxley Act of 2002.  Will the Secretary appeal?  If so, how will the Ninth Circuit rule?  Although two federal circuit courts of appeal (the Second and Sixth Circuits) have refused to enforce preliminary reinstatement orders in whistleblower cases, the Secretary has argued that those decisions do not definitively address the question of whether a federal court has jurisdiction to enforce such orders.  Stay tuned … we’ll monitor this one closely.