NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN THORSTENSON, 

Petitioner, 

 v. 

U.S. DEPARTMENT OF LABOR, 

Respondent, 

BNSF RAILWAY COMPANY, 

Intervenor.

No. 22-70020 

LABR ARB No. 2018-0060 

MEMORANDUM*

On Petition for Review of an Order of the

Department of Labor

Argued and Submitted February 16, 2023

San Francisco, California

Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN,**

District Judge.

In this comeback case, Petitioner Stephen Thorstenson appeals a second 

determination by the Department of Labor Administrative Review Board (“ARB”) 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Barbara Jacobs Rothstein, United States District Judge 

for the Western District of Washington, sitting by designation.

FILED

MAR 15 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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that BNSF Railway Company (“BNSF”) did not retaliate against Thorstenson in 

violation of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101 et seq.

We have jurisdiction under 49 U.S.C. § 20109(d)(4). We grant the petition and 

remand for the limited purpose of determining compensatory damages. 

In the initial appeal, we reversed and remanded the ARB’s affirmance of the 

administrative law judge’s (“ALJ”) decision, explaining that the ARB had 

improperly rejected the contention that “BNSF’s enforcement of its timely injury 

reporting policy was so unreasonable and unduly burdensome that it constituted 

retaliation when enforced on these facts.” Thorstenson v. U.S. Dep’t of Labor

(“Thorstenson I”), 831 F. App’x 842, 843 (9th Cir. 2020). We held that “because 

it was virtually impossible for Thorstenson to comply with the injury reporting 

rule, he was effectively disciplined for the protected activity of reporting a 

workplace injury.” Id. On remand, the ARB took issue with our analysis of the 

record, determined that our disposition did not implicate BNSF’s affirmative 

defense, and affirmed once more the ALJ’s finding that BNSF had proven its 

affirmative defense. Thorstenson now petitions for review. 

The ARB erred in its interpretation of our prior decision, which foreclosed 

its determination on remand that BNSF established its affirmative defense by clear 

and convincing evidence. See id. (explaining that “BNSF’s enforcement of its 

timely injury reporting policy was so unreasonable and unduly burdensome that it 
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constituted retaliation when enforced on these facts” and “because it was virtually 

impossible for Thorstenson to comply with the injury reporting rule, he was 

effectively disciplined for the protected activity of reporting a workplace injury”). 

In the alternative, we hold that substantial evidence does not support the ALJ’s 

conclusion that BNSF proved by clear and convincing evidence that it would have 

disciplined Thorstenson in the absence of his protected activity. See DeFrancesco 

v. Union R.R. Co., ARB No. 13-057, 2015 WL 5781070, at *5 (ARB Sept. 30, 

2015) (explaining that “‘[c]lear’ evidence means the employer has presented an 

unambiguous explanation for the adverse action(s) in question,” and 

“‘[c]onvincing’ evidence has been defined as evidence demonstrating that a 

proposed fact is ‘highly probable’”). 

It is clear from the administrative record that Thorstenson is entitled to 

damages for his termination. The ALJ found that BNSF terminated Thorstenson

under its progressive discipline policy, relying on the earlier Level S for the latereported injury. We therefore conclude that a remand for further proceedings on 

the merits would serve no useful purpose. We grant this petition, reverse the 

decision of the ARB, and remand with instructions to remand to the ALJ for the 

limited purpose of determining compensatory damages based on the existing 

record, to be supplemented only as to post-hearing damages.

PETITION GRANTED and REMANDED with instructions.