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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gary Despain, 

Plaintiff, 

v. 

BNSF Railway Company, 

Defendant. 

No. CV-15-08294-PCT-NVW

ORDER 

In 2010, Gary Despain filed a complaint with the Secretary of Labor against his 

employer, BNSF Railway Company (“BNSF Railway”), alleging retaliation in violation 

of the Federal Railroad Safety Act. Five years later, the Secretary still had not reached a 

final decision. Despain then brought this action pursuant to the Act’s “kick-out” 

provision, which authorizes an “original action” in federal district court for “de novo 

review” in cases where the Secretary has not reached a final decision within 210 days. 49 

U.S.C. § 20109(d)(3). BNSF Railway contends Despain’s action is untimely under the 

federal “catch-all” four-year statute of limitations. 28 U.S.C. § 1658(a). Whether the 

catch-all limitations period applies to the Federal Railroad Safety Act’s kick-out 

provision appears to be a question of first impression, though a few courts have addressed 

whether the limitations period applies to a very similar statute. BNSF Railway’s Motion 

to Dismiss (Doc. 9) on that ground will be denied for the reasons that follow. 

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 

sufficiency of the complaint. The motion may be based on “the lack of a cognizable legal 

theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” 

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need 

include “only enough facts to state a claim for relief that is plausible on its face.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

All allegations of material fact are assumed to be true and construed in the light 

most favorable to the non-moving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 

Cir. 2009). However, that does not apply to legal conclusions or conclusory factual 

allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the running of the statute of 

limitations is apparent on the face of the complaint, dismissal is appropriate. Huynh v. 

Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006). 

I. RELEVANT STATUTES 

A. Federal Railroad Safety Act 

Congress enacted the Federal Railroad Safety Act in 1970. Pub. L. No. 91-458, 84 

Stat. 971. The Act’s self-declared purpose was “to promote safety in all areas of railroad 

operations and to reduce railroad-related accidents” and injuries. Id., § 101, 84 Stat. at 

971. After enactment, Congress noted that railroad workers who complained about safety 

conditions often suffered retaliation. See Consol. Rail Corp. v. United Transp. Union, 

947 F. Supp. 168, 171 (E.D. Pa. 1996). Thus, in 1980, Congress added an anti-retaliation 

provision, prohibiting railroad carriers from discriminating against employees who report 

safety violations or who refuse to work under hazardous conditions. Federal Railroad 

Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811, 1815. 

Retaliation claims were to be resolved in accordance with arbitration procedures set forth 

in the Railway Labor Act. Id.; see Norfolk S. Ry. Co. v. Solis, 915 F. Supp. 2d 32, 36–37 

(D.D.C. 2013). 

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In 2007, Congress amended the anti-retaliation provision to include additional 

categories of protected conduct. See Implementing Recommendations of the 9/11 

Commission Act, Pub. L. No. 110-53, § 1521, 121 Stat. 266, 444–46. Thus, for example, 

now a railroad carrier may not discriminate against an employee who notifies the carrier 

of a work-related injury. 49 U.S.C. § 20109(a)(4). 

The 2007 amendments also established a new enforcement process, with multiple 

levels of administrative review and an option to switch over to judicial review. See Pub. 

L. No. 110-53, § 1521, 121 Stat. at 446–47. The process is set forth in 49 U.S.C. 

§ 20109(d) under the heading “Enforcement action.” Under subsection (d)(1), an 

employee alleging retaliation must first file a complaint with the Secretary of Labor: 

(d) Enforcement action.— 

(1) In general.—An employee who alleges discharge, 

discipline, or other discrimination in violation of subsection 

(a), (b) or (c) of this section, may seek relief in accordance 

with the provisions of this section, with any petition or other 

request for relief under this section to be initiated by filing a 

complaint with the Secretary of Labor. 

49 U.S.C. § 20109(d)(1). Subsection (d)(2) incorporates the administrative procedures 

governing whistleblowing airline employees, 49 U.S.C. § 42121(b), and states a 180-day 

statute of limitations for filing the complaint: 

(2) Procedure.— 

(A) In general.—Any action under paragraph (1) shall be 

governed under the rules and procedures set forth in section 

42121(b), including: 

... 

(ii) Statute of limitations.—An action under paragraph (1) 

shall be commenced not later than 180 days after the date on 

which the alleged violation of subsection (a), (b) or (c) of this 

section occurs. 

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... 

49 U.S.C. § 20109(d)(2). 

Under this procedure, the Secretary must investigate and determine whether there 

is “reasonable cause to believe” that the employee’s complaint has merit. 49 U.S.C. 

§ 42121(b)(2)(A). If reasonable cause exists, the Secretary must issue a “preliminary 

order” awarding the employee relief. Id. Either party may object to the preliminary 

order. Id. If there is no objection, the order becomes “final”; otherwise, an 

Administrative Law Judge (“ALJ”) must conduct a de novo hearing on the record. See

id.; 29 C.F.R. § 1982.107(b). The ALJ’s decision becomes the Secretary’s “final” 

decision unless a party petitions for, and obtains, review by the Administrative Review 

Board. 29 C.F.R. §§ 1982.109(e), 1982.110(b). In that event, the Board’s decision is 

“final.” 29 C.F.R. § 1982.110(c). 

However, if the agency does not reach a final decision within 210 days of the 

filing of the complaint and the delay is not due to the employee’s bad faith, the employee 

then has an option to bring an “original action” for “de novo review” in federal district 

court with respect to the complaint he filed with the Secretary: 

(3) De novo review.—With respect to a complaint under 

paragraph (1), if 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 

without regard to the amount in controversy, and which 

action shall, at the request of either party to such action, be 

tried by the court with a jury. 

49 U.S.C. § 20109(d)(3). This option is known as the Act’s “kick-out” provision. See, 

e.g., Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 636 (4th Cir. 2015). Once an employee 

exercises this option by filing in district court, the Secretary loses jurisdiction of the 

controversy. See Stone v. Duke Energy Corp., 432 F.3d 320, 322–23 (4th Cir. 2005) 

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(interpreting analogous provision in the Sarbanes-Oxley Act). If the agency reaches a 

final decision before such removal, the employee can then appeal to the federal court of 

appeals for limited review under the standards of the Administrative Procedures Act: 

(4) Appeals.—Any person adversely affected or aggrieved by 

an order issued pursuant to the procedures in section 

42121(b), may obtain review of the order in the United States 

court of appeals for the circuit in which the violation, with 

respect to which the order was issued, allegedly occurred or 

the circuit in which the complainant resided on the date of 

such violation. The petition for review must be filed not later 

than 60 days after the date of the issuance of the final order of 

the Secretary of Labor. The review shall conform to chapter 

7 of title 5. The commencement of proceedings under this 

paragraph shall not, unless ordered by the court, operate as a 

stay of the order. 

49 U.S.C. § 20109(d)(4). 

 The 2007 amendments “enhance[] administrative and civil remedies for 

employees.” H.R.Rep. No. 110-259 at 348 (2007). In particular, the kick-out provision 

creates a “‘safety valve’ to ensure that claims brought within the Department of Labor are 

processed within a reasonable time.” Gonero v. Union Pac. R. Co., No. CIV. 2:09-2009 

WBS JFM, 2009 WL 3378987, at *6 (E.D. Cal. Oct. 19, 2009). If the agency delays too 

long, the employee may opt out of agency proceedings and transfer to district court. Like 

the ALJ, the district court reviews the preliminary order de novo, can take new evidence, 

determines facts (or charges a jury with that task), and reaches conclusions of law. The 

final ruling, whether made by the agency or in district court, is reviewable only in the 

federal court of appeals. 

B. Federal Catch-All Statute of Limitations, 28 U.S.C. § 1658 

Before 1990 there was no uniform statute of limitations for federal statutory 

causes of action. This void “spawned a vast amount of litigation.” Jones v. R.R. 

Donnelley & Sons Co., 541 U.S. 369, 377 (2004). The settled practice was to adopt a 

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local time limitation as federal law, which “generated a host of issues that required 

resolution on a statute-by-statute basis.” Id. at 377–78. 

Congress responded to this problem in 1990 by enacting 28 U.S.C. § 1658, 

entitled “Time limitations on the commencement of civil actions arising under Acts of 

Congress.” See Judicial Improvements Act of 1990, Pub. L. No. 101-650, § 313, 104 

Stat. 5089, 5114–15. The statute establishes a default four-year limitations period for 

federal statutory claims: 

(a) Except as otherwise provided by law, a civil action arising 

under an Act of Congress enacted after the date of the 

enactment of this section may not be commenced later than 4 

years after the cause of action accrues. 

28 U.S.C. § 1658(a). This default limitations period applies only to claims arising under 

statutes enacted after December 1, 1990. Jones, 541 U.S. at 380. 

In 2002, Congress added a subsection to the statute. See Sarbanes-Oxley Act of 

2002, Pub. L. No. 107-204, § 804(a), 116 Stat. 745, 801. The subsection establishes a 

stricter limitations period for federal securities fraud claims: 

(b) Notwithstanding subsection (a), a private right of action 

that involves a claim of fraud, deceit, manipulation, or 

contrivance in contravention of a regulatory requirement 

concerning the securities laws, as defined in section 3(a)(47) 

of the Securities Exchange Act of 1934 (15 U.S.C. 

78c(a)(47)), may be brought not later than the earlier of— 

(1) 2 years after the discovery of the facts constituting the 

violation; or 

(2) 5 years after such violation. 

28 U.S.C. § 1658(b). 

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II. FACTUAL ALLEGATIONS ASSUMED TRUE 

The following allegations are presumed true at this stage. Despain began working 

for BNSF Railway in 1978. (Doc. 1 at ¶ 7.) On March 28, 2010, he suffered an injury on 

the job, which he promptly reported to BNSF Railway. (Id. at ¶¶ 8–11.) On April 13, 

2010, BNSF Railway issued Despain a disciplinary letter charging him with being 

dishonest about his injury. (Id. at ¶ 12.) 

On April 23 or May 20, 2010, Despain filed a complaint with the Secretary of 

Labor against BNSF Railway, alleging retaliation in violation of the Federal Railroad 

Safety Act. (Compare Doc. 1 at ¶ 16 with Doc. 1 at 7.) The following month, BNSF 

Railway terminated Despain. (Id. at ¶ 13.) BNSF Railway later reinstated him but 

continued to treat him unfavorably. (Id. at ¶¶ 14–15.) 

The Secretary then made an investigation. (Id. at ¶ 17.) Despain cooperated fully 

and in good faith. (Id.) On July 17, 2015, the Secretary found reasonable cause to 

believe BNSF Railway violated the Act and issued a preliminary order awarding 

$172,994.88 in lost wages, $57,948.46 in compensatory damages, and $50,000 in 

punitive damages, plus interest and attorney’s fees. (Id. at 7–13.) Five days later, BNSF 

Railway objected to the preliminary order and requested a de novo hearing on the record 

before an ALJ. (Doc. 15-1 at 4–5.) 

On November 13, 2015, before the ALJ reached a decision, Despain filed a Notice 

of Intent to file an original action in federal district court pursuant to 49 U.S.C. 

§ 20109(d)(3). (Doc. 1 at 17–18.) On December 10, 2015, Despain filed this action. 

(Doc. 1.) On December 18, 2015, the ALJ found the Secretary’s delay in issuing a final 

decision was not due to bad faith on Despain’s part and he had “not waived his right to 

remove the case to federal district court.” (Doc. 15-1 at 7.) The ALJ also found 

Despain’s complaint in this Court is “based on the same facts that constituted his action” 

before the ALJ and he therefore dismissed the administrative action for lack of 

jurisdiction. (Id. at 7-8.) 

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BNSF Railway now moves to dismiss Despain’s action in this Court as timebarred under the four-year catch-all statute of limitations, 28 U.S.C. § 1658(a). (Doc. 9.) 

III. THE FOUR-YEAR CATCH-ALL LIMITATION, 28 U.S.C. § 1658, DOES 

NOT APPLY TO ACTIONS IN DISTRICT COURT UNDER THE 

FEDERAL RAILROAD SAFETY ACT’S KICK-OUT PROVISION, 49 

U.S.C. § 20109(d)(3). 

Despain filed his complaint with the Secretary of Labor pursuant to 49 U.S.C. 

§ 20109(d)(1). As noted, the catch-all statute, 28 U.S.C. § 1658(a), applies only in the 

absence of other limitations periods (“[e]xcept as otherwise provided by law”). As also 

noted, actions before the Secretary under 49 U.S.C. § 20109(d)(1) are governed by a 180-

day statute of limitations. 49 U.S.C. § 20109(d)(2)(ii). Thus, the catch-all limitations 

period does not apply to those actions. BNSF Railway does not contend otherwise. 

Despain timely filed his complaint with the Secretary within 180 days. 

BNSF Railway argues that, though the 180-day limitation was satisfied for 

Despain’s complaint to the Secretary under § 20109(d)(1), the four-year catch-all 

limitations of 28 U.S.C. § 1658(a) independently limits Despain’s original action in 

district court under the Act’s kick-out provision, § 20109(d)(3). On that view, this action 

was permitted after the administrative action was pending 210 days but was then 

prohibited four years later, even though the administrative action was still pending. 

This argument fails for several reasons. The action in district court “[w]ith respect 

to a complaint under paragraph (1) [before the Secretary]” is essentially a continuation of 

the action before the Secretary and therefore requires no additional limitations period. 

Indeed, adding a limitations period would serve no purpose and would in fact defeat 

Congress’s specific purpose in allowing employees to transfer stagnant retaliation 

proceedings from the agency to district court. Even if the court action is separate from 

the agency action, the catch-all limitation would not apply because the court action is 

available as long as, and only as long as, the agency fails to reach a final decision. 

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A. A district court action under the kick-out provision is essentially a 

continuation of the pending agency action and therefore governed by 

the already-satisfied 180-day limitations period.

An action in district court under the Federal Railroad Safety Act’s kick-out 

provision is dependent on, and replaces, a timely commenced action before the Secretary. 

The “original action” authorized by the provision is not a review of final agency action; 

rather, it requires the district court to step into the place of the agency to continue the 

pending “de novo review” of the very same “complaint” that the employee brought to the 

agency. 49 U.S.C. § 20109(d)(3). Because the action is substantively the same whether 

in the agency or in court, only one limitations period applies: the 180-day period 

governing the employee’s initial filing, 49 U.S.C. § 20109(d)(2)(ii). 

Treating the court action as a continuation of the agency action makes sense for 

limitations purposes. Statutes of limitations are “primarily designed to assure fairness to 

defendants. Such statutes ‘promote justice by preventing surprises through the revival of 

claims that have been allowed to slumber until evidence has been lost . . . .’ Moreover, 

the courts ought to be relieved of the burden of trying stale claims when a plaintiff has 

slept on his rights.” Burnett v. New York Cent. R. Co., 380 U.S. 424, 428 (1965) (quoting 

Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348–49 (1944)). 

Despain’s claims in this court did not “surprise” BNSF Railway because the parties had 

been litigating these claims at the agency level for years. Nor did Despain “sleep on his 

rights” during that time. Any loss of evidence would lie entirely at the feet of the 

Secretary. Thus, imposing a separate limitations period on Despain’s court action would 

not advance traditional limitations policies. 

In fact, a separate limitation here would only defeat the purpose of the Federal 

Railroad Safety Act’s kick-out provision. Congress decided, in a comprehensive 

statutory scheme, to allow reassignment of review of employees’ claims in the event of 

agency delay. It is nonsensical to infer, from a different statute, that more agency delay 

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somehow defeats the reassignment. That would be like a court dismissing a timely claim 

on the ground that the court itself failed to grant relief within some arbitrary time limit. 

BNSF Railway argues that, because the district court proceeding is an “original 

action,” it needs a statute of limitations in addition to that of the administrative 

proceeding which it replaces. This argument misses the forest for the trees. Although 

statutory analysis often begins with the common meaning of words in isolation, words 

ultimately derive meaning from context. Here, context is essential. Under the kick-out 

provision, Despain seeks an “original action at law or equity for de novo review” of an 

agency’s preliminary order, in place of pending higher agency review. 49 U.S.C. 

§ 20109(d)(3). The provision’s defining first phrase is that the original action is “[w]ith 

respect to a complaint under paragraph (1) [a complaint filed with the Secretary].” The 

ALJ aptly described the provision as conferring a “right to remove the case to federal 

district court.” (Doc. 15-1 at 7.) Thus, Congress’s purpose and intended remedy are 

clear. It should not matter whether Congress used the term “removal” or “original 

action.” BNSF Railway’s out-of-context reading of a few words would significantly 

defeat that remedy’s reach. It is erroneous. 

B. Even if a district court action under the kick-out provision is separate 

from the pending agency action, the catch-all limitations period would 

not apply.

Suppose BNSF Railway is correct that the Federal Railroad Safety Act’s kick-out 

provision authorizes an action meaningfully distinct from the agency proceeding it 

replaces. Such actions still would not be governed by the federal catch-all limitation, for 

two related reasons. 

First, actions under the kick-out provision do not need a limitations period because 

they are available as long as the conduct that occasions them continues. The provision 

authorizes employees to transfer their complaint to district court in the event of agency 

delay. Under this authorization, the action can be brought as long as the targeted harm 

persists, that is, as long as the agency delays. Thus, the action expires only with passage 

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of the harm, not with passage of time. This is analogous to the equitable doctrine that, in 

some contexts, a statute of limitations does not run against a claim as long as the 

actionable harm continues. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380–81 

(1982) (finding Fair Housing Act claim timely where alleged unlawful practice 

“continue[d] into the limitations period”); see generally Kyle Graham, The Continuing 

Violations Doctrine, 43 Gonz. L. Rev. 271 (2008) (explaining formulations, 

justifications, and applications of the doctrine). 

Second, to the extent that actions under the kick-out provision need a separate 

limitations period, the provision itself provides a natural time limit. Such actions are 

timely only as long as the Secretary “has not issued a final decision.” 49 U.S.C. 

§ 20109(d)(3). Once the Secretary reaches a final decision, the employee’s right to de 

novo review in district court expires. This literal time limit tracks rather than defeats 

Congress’s remedy for delayed agency proceedings. The remedy ends when the need 

ends and not before. 

Thus, no matter how one slices it, the Federal Railroad Safety Act’s kick-out 

provision leaves no limitations gap for the catch-all limitations period to fill. 

Accordingly, the catch-all statute has no application here. 

C. No case authority applies the 28 U.S.C. § 1658 catch-all limitation to 

oust a district court action under 49 U.S.C. § 20109(d)(3). 

BNSF Railway relies on three cases to support its theory that the catch-all statute 

of limitations applies to actions under the Federal Railroad Safety Act’s kick-out 

provision. The first is Gunderson v. BNSF Ry. Co., 29 F. Supp. 3d 1259 (D. Minn. 

2014), in which the court noted in a footnote that the statute “may apply” to such actions. 

Id. at 1264 n.6. Consistent with that tentative observation, it turns out that the statute 

does not apply. 

The second is Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658 

(4th Cir. 2015). There, Jones alleged retaliation in violation of the Sarbanes-Oxley Act, 

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which contains an enforcement procedure and kick-out provision very similar to the one 

at issue here. It requires an employee to first file a complaint with the Secretary of Labor 

and then allows an “action” for “de novo review” in district court if the Secretary does 

not reach a final decision within a stated time (there, 180 days) and the delay is not due to 

the employee’s bad faith. 18 U.S.C. §§ 1514A(b)(1)(A), (B). Jones filed a timely 

complaint with the Secretary and nearly three years later, while still waiting for a final 

decision, brought an action in district court for de novo review. 777 F.3d at 663–64. 

BNSF Railway characterizes Jones as “holding” that the catch-all statute of 

limitations, 28 U.S.C. § 1658, applies to the Sarbanes-Oxley analogue to the Federal 

Railroad Safety Act’s kick-out provision. That mischaracterizes the case, which has both 

a holding and dicta concerning § 1658. The litigated question was which subsection of 

the statute fit Jones’s specific claim: the four-year general limitation in § 1658(a) or the 

two-year securities fraud limitation in § 1658(b)(1). Because the employee filed in 

district court after two years but under four years, to win under § 1658 the employer had 

to shoehorn that claim into a securities fraud claim. The court’s precise holding was that 

the shoe did not fit. It was not a securities fraud claim, so § 1658(b)(1) could not bar the 

claim even if § 1658 in general governed Sarbanes-Oxley Act retaliation claims. The 

employee defeated the motion the easy way. 

Indeed, the parties framed the question as whether § 1658(b)(1) applied. See

Appellants’ Opening Br., 2014 WL 1511197, at *2 (presenting question whether 

plaintiff’s claims “‘involve a claim of fraud’ and [are] therefore subject to the two-year 

statute of limitations of 28 U.S.C. § 1658(b)(1)”); Appellee Br., 2014 WL 2115956, at *5 

(presenting question whether “the four-year statute of limitations set forth at 28 U.S.C. 

§ 1658(a) or the two-year statute of limitations set forth at 28 U.S.C. § 1658(b)(1)” 

applies). 

The court treated the question as the parties posed it: whether the four-year 

limitation of § 1658(a) or the two-year limitation of § 1658(b)(1) applied, not whether 

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§ 1658 applied at all. The court began: “We first consider [the employer’s] contention 

that the statute of limitations bars their action.” 777 F.3d at 666. The court explained 

why § 1658(b)(1) did not apply. Id. at 666–68. The court’s statement that § 1658(a) 

controls, if it means anything beyond a conclusion that that employee’s claim was not a 

securities fraud claim within the description of § 1658(b)(1), is dictum on two levels. 

First, the facts of that case required no such holding because that case was undisputedly 

timely even under 28 U.S.C. § 1658(a). Second, the parties apparently agreed 

(mistakenly) that § 1658 in general applies and never argued that the express time 

limitation in the Sarbanes-Oxley Act oust § 1658 limitations. A stipulation of the parties 

in one case is not a binding precedent against other litigants in other cases. Finally, if 

somehow Jones did hold that § 1658 ousts claims that are timely under the SarbanesOxley Act itself, it lacks essential analysis and is therefore unpersuasive. No one can 

fault the Jones court for its summary comment on a point the parties had stipulated away. 

The question does matter in this case and is sharply contested. We decide it afresh. 

The third case on which BNSF Railway relies is Ellis v. CommScope, Inc. of N. 

Carolina, No. 3:07-CV-1938-G, 2008 WL 4191482 (N.D. Tex. Sept. 11, 2008). That 

case also dealt with an action under the Sarbanes-Oxley Act’s kick-out provision. Id. at 

*4. But that case is unhelpful. The court there summarily applied § 1658(b) in the 

course of deciding a different question. Id. The court offered no analysis as to why 

§ 1658(b) applied, much less any analysis as to why the broader statute, § 1658, applied. 

Id.

A more illuminating case is Jordan v. Sprint Nextel Corp., 3 F. Supp. 3d 917 (D. 

Kan. 2014). There, as in Jones and Ellis, the employee filed a Sarbanes-Oxley retaliation 

complaint with the Secretary of Labor under 18 U.S.C. § 1514A(b)(1)(A) and years later 

brought an action for de novo review in federal court under § 1514A(b)(1)(B). Id. at 

923–24. The court held that no part of the catch-all statute of limitations—neither 

§ 1658(a) nor § 1658(b)—governed the timeliness of the employee’s action in federal 

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court. Id. at 925–28. The court reasoned that the catch-all statute applies “except as 

otherwise provided by law,” id. at 928 (quoting 28 U.S.C. § 1658(a)), and the SarbanesOxley Act already provides a specific limitations period in which retaliation claims must 

be filed with the Secretary, id. (referring to 18 U.S.C. § 1514A(b)(2)(D)). That analysis 

is more persuasive here. 

IT IS THEREFORE ORDERED that Defendant BNSF Railway’s Motion to 

Dismiss (Doc. 9) is denied. 

Dated this 13th day of May, 2016. 

Neil V. Wake

United States District Judge 

Case 3:15-cv-08294-NVW Document 19 Filed 05/13/16 Page 14 of 14