Eighth Circuit Vacates FRSA Whistleblower Award, Cites Jury Right

Eighth Circuit Vacates FRSA Whistleblower Award, Cites Jury Right

The Eighth Circuit on September 3, 2026 vacated a Department of Labor order awarding a BNSF carman relief for whistleblower retaliation, holding that deciding his Federal Railroad Safety Act claim before an agency judge rather than a jury violated the railroad's Seventh Amendment right. Nos. 25-2436 and 25-2578.

Information last verified on September 5, 2026.

Status: Decided. The U.S. Court of Appeals for the Eighth Circuit filed its published opinion on September 3, 2026 (submitted May 12, 2026). It granted BNSF's petition for review, vacated the Administrative Review Board's order of May 21, 2025, and remanded to the Board for further proceedings. The panel did not decide whether BNSF actually retaliated against the employee. That question remains open.

Jurisdiction scope: This is a federal appellate ruling binding within the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota). It concerns the federal railroad whistleblower provision at 49 U.S.C. section 20109 and the forum in which those claims are adjudicated. It does not amend any state whistleblower statute, and the panel decided nothing about any other federal whistleblower law.

What Happened

Dale Gourneau worked as a carman at BNSF Railway Company, inspecting railroad cars for compliance with safety regulations. BNSF terminated him following a disciplinary proceeding in January 2020. He filed a whistleblower complaint with the Occupational Safety and Health Administration of the Department of Labor, alleging that the railroad retaliated against him for reporting, in good faith, a hazardous safety condition, the conduct protected by 49 U.S.C. section 20109(b)(1)(A) (slip op. at 2, 7).

An Administrative Law Judge ruled for Gourneau after a hearing and ordered reinstatement, backpay, damages and attorneys' fees. The Administrative Review Board affirmed. BNSF then petitioned the Eighth Circuit for review (slip op. at 2).

Chief Judge Colloton wrote for a panel that also included Circuit Judges Shepherd and Kobes. The court stated its conclusion in the opening paragraph:

"We conclude that the agency's order based on administrative proceedings violated the company's right to a jury trial under the Seventh Amendment. We therefore vacate the Department's order and remand for proceedings consistent with this opinion." Source: BNSF Railway Co. v. Secretary, U.S. Department of Labor, Nos. 25-2436 and 25-2578, at slip op. 2 (8th Cir. Sept. 3, 2026).

The waiver question came first. The Department argued BNSF had waived the constitutional challenge by not presenting it so the ALJ or the Board could rule on it, citing the regulation providing that parties before the Board should identify the conclusions or orders they object to or risk waiver, 29 C.F.R. section 1982.110(a). The panel disagreed on the record: BNSF's petition to the Board had specifically argued that trying the dispute before an ALJ violated the Seventh Amendment. That satisfied any exhaustion requirement, the court said, even assuming BNSF had to raise a constitutional claim before a board that likely could not grant relief on it (slip op. at 3).

The merits of the jury question turned on a two-step analysis. Looking to the nature of the statutory action and the remedy sought, with the remedy the more important half, the panel found Gourneau's retaliatory-discharge claim analogous to a common-law wrongful discharge claim, which at common law would have been treated as a breach of contract. It added that the claim also sounds in tort, noting that the Eighth Circuit has previously described a section 20109 violation as an intentional tort in Kuduk v. BNSF Railway Co., 768 F.3d 786 (8th Cir. 2014) (slip op. at 4).

On remedies, the panel relied directly on Jarkesy: money damages are the prototypical common-law remedy, and monetary relief is legal where it is designed to punish or deter. FRSA provides all relief necessary to make an employee whole, including reinstatement, backpay, compensatory damages and punitive damages capped at $250,000 under 49 U.S.C. section 20109(e)(1) to (3). Backpay, compensatory damages and punitive damages are legal in nature, the court held, and the availability of punitive damages confirms that the statute is designed to punish or deter. The claim was therefore "legal in nature" (slip op. at 4 to 5).

The public rights exception did not save the agency proceeding. The Department leaned on Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977), arguing that the FRSA regime was unknown to the common law and more closely resembles a detailed building code. The panel distinguished it: Gourneau did not allege that BNSF failed to comply with a regulatory scheme unknown to the common law, but that BNSF, a private party, breached a duty to him, another private party. Nor was his claim closely integrated into a broader regulatory scheme; the court called it a "standalone" suit, "neither prioritized nor subordinated to related claims" (slip op. at 5 to 6).

That is where the panel parted company with the Second Circuit, writing that it "respectfully disagree[d] with the contrary conclusion of Yellow Freight System, Inc. v. Martin, 983 F.2d 1195, 1201 (2d Cir. 1993), which reflected a different approach some thirty years ago" (slip op. at 6). Yellow Freight arose under the Surface Transportation Assistance Act rather than FRSA. The Second Circuit there rejected the employer's Seventh Amendment challenge to Department of Labor adjudication, reasoning that the public interest at stake was safety on the nation's highways and that Congress had built "an extensive public regulatory scheme" around it, 983 F.2d at 1201.

The court also found the FRSA regime is not incompatible with a jury, pointing to the statute's own escape hatch: an employee may bring an original action in federal court if the Secretary has not issued a final decision within 210 days, and once there, either party may request a jury, 49 U.S.C. section 20109(d)(3). Given that Congress allowed a jury on this very type of dispute in some circumstances, the panel saw no functional justification for making the employer's jury right depend on the timing of the Secretary's decision and the employee's choice of forum (slip op. at 6).

Finally, the panel rejected the idea that the Department was acting as an adjunct making narrowly confined factual determinations in a specialized area. Gourneau did not allege a violation of a specialized regulation; he had to show only that BNSF retaliated because he reported, in good faith, a hazardous safety or security condition. Article III courts, the court said, are the experts in the federal system at resolving such claims (slip op. at 7).

"As Gourneau's claim does not fall within the public rights exception, 'Congress may not avoid a jury trial by preventing the case from being heard before an Article III tribunal.'" Source: BNSF Railway Co. v. Secretary, U.S. Department of Labor, at slip op. 7.

The panel then framed its holding narrowly and in sequence: the Seventh Amendment entitles BNSF to a jury trial on Gourneau's claims for liability, backpay, compensatory damages and punitive damages before any equitable claim to reinstatement is adjudicated (slip op. at 7). The disposition followed on the last page:

"The petition for review is granted, the Board's order of May 21, 2025, is vacated, and the case is remanded to the Board for further proceedings." Source: BNSF Railway Co. v. Secretary, U.S. Department of Labor, at slip op. 8.

What the Law Actually Says

The statute. The Federal Railroad Safety Act whistleblower provision lives at 49 U.S.C. section 20109. Subsection (a) bars a railroad carrier, its contractors and subcontractors, and its officers and employees from discharging, demoting, suspending, reprimanding or otherwise discriminating against an employee because of protected acts, including providing information about conduct the employee reasonably believes violates federal railroad safety law, refusing to violate such a law, reporting a work-related injury or illness, and cooperating with a safety investigation. Subsection (b)(1)(A), the provision Gourneau invoked, protects reporting, in good faith, a hazardous safety or security condition.

The process. A complainant files with the Secretary of Labor, and OSHA administers the program. Under section 20109(d)(2)(A), the case runs on the rules, procedures and burdens of proof in 49 U.S.C. section 42121(b), and the complaint must be filed within 180 days of the alleged violation. Section 20109(d)(3) is the provision the Eighth Circuit found significant: if the Secretary has not issued a final decision within 210 days after the complaint is filed, and the delay is not due to the employee's bad faith, the employee may bring an original action for de novo review in federal district court, which "shall, at the request of either party to such action, be tried by the court with a jury." Section 20109(d)(4) routes appeals from a final agency order to the court of appeals, with the petition due within 60 days.

The remedies. Section 20109(e) entitles a prevailing employee to all relief necessary to make the employee whole, and specifies reinstatement with seniority, backpay with interest, and compensatory damages including litigation costs, expert witness fees and reasonable attorney fees. Punitive damages of up to $250,000 are also available. That mix of relief is what drove the court's conclusion that the claim is legal rather than equitable.

The constitutional rule. The Seventh Amendment preserves the right to a jury trial in suits at common law where the value in controversy exceeds twenty dollars. In SEC v. Jarkesy, 603 U.S. 109 (2024), the Supreme Court held that when the SEC seeks civil penalties for securities fraud, the Seventh Amendment entitles the defendant to a jury trial, because the antifraud provisions replicate common-law fraud and the public rights exception did not apply. The Eighth Circuit carried that framework across to a private FRSA retaliation claim.

Two related bodies of law sit next to this ruling. FRSA is one entry in a much larger set of protections, mapped in our overview of federal whistleblower laws, and it does not displace state law: section 20109(g) says nothing in it preempts or diminishes other federal or state safeguards, which is why a railroad worker in, say, Minnesota may also look at what the state whistleblower statute covers or at Iowa's approach to retaliatory discharge. Because the panel analogized the claim to common-law wrongful discharge, it also touches the doctrine underneath every US employment case, the default rule and its exceptions explained in our guide to at-will employment and, at state level, in Missouri's public-policy exception.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The most important thing to understand about this decision is what it did not do. It did not repeal a whistleblower protection, narrow who is covered, or hold that Gourneau's allegations were false. Section 20109 is unchanged, the conduct it protects is unchanged, and the 180-day filing window is unchanged. What changed inside the Eighth Circuit is the venue in which a contested FRSA retaliation claim can end in a damages award against a railroad. The panel said the employer is entitled to have a jury decide liability and legal damages, and it sequenced that ahead of the equitable reinstatement question.

The practical consequences run in both directions. An employer gains a jury and the procedural weight of an Article III proceeding, which is slower and more expensive than an ALJ hearing. An employee who was betting on the administrative route, which is cheaper to enter and does not require a lawyer to file, now faces a defendant with a constitutional argument for moving the fight. At the same time, the statute already contemplated the courthouse: the 210-day de novo review provision the panel cited exists precisely so a complainant is not trapped in a slow agency process, and it gives either side a jury on request.

The scope question is the one to watch, and it is worth being careful about. The panel decided an FRSA case. It did not decide whether the same reasoning reaches the roughly two dozen other whistleblower statutes OSHA administers, such as the Sarbanes-Oxley provision at 18 U.S.C. section 1514A or the Surface Transportation Assistance Act provision at 49 U.S.C. section 31105, several of which are built on the same section 42121(b) procedures and offer similar make-whole relief. That structural resemblance is an observation of ours, not a holding of the court, and nothing in this opinion resolves how any other statute would fare. We would not treat the question as answered until a court answers it.

Finally, the disagreement with Yellow Freight is a fact stated on the face of the opinion rather than an inference. Circuits reaching different conclusions on a recurring federal question is one of the ordinary routes by which an issue reaches the Supreme Court, though whether that happens here, and what any further review would produce, is not something this opinion tells us and not something we will guess at.

How This Affects You

For rail workers in the seven Eighth Circuit states, the entry point has not moved: an FRSA complaint still goes to OSHA, and it still has to be filed within 180 days of the alleged retaliation under section 20109(d)(2)(A)(ii). What this ruling changes is what a railroad can demand once the case is contested and money is on the table inside that circuit.

Two features of the statute are worth knowing about in that light, both of them longstanding rather than new. The 210-day de novo review provision in section 20109(d)(3) allows a complainant to move an unresolved case to federal district court, where either party may request a jury. And section 20109(h) says the rights and remedies in the section cannot be waived by any agreement, policy, form or condition of employment. None of that is legal advice about a particular case, and anyone with a live claim and a running deadline should talk to a lawyer rather than to an article.

What Happens Next

The immediate step is set by the disposition. The Board's May 21, 2025 order is vacated and the case returns to the Administrative Review Board for further proceedings. The opinion does not spell out what the Board must do on remand or lay out a route by which the claim would be tried; it says only that the case is remanded for proceedings consistent with the opinion, and that BNSF is entitled to a jury on liability and legal damages before any reinstatement claim is adjudicated. We are not going to fill that gap with a procedure the court did not describe.

Beyond the remand, the ordinary federal appellate options exist for any party that wants them, including rehearing, rehearing en banc and a petition for certiorari. This article does not report that any such filing has been made, and we make no prediction about whether one will be or how it would fare. The stated disagreement with the Second Circuit is the fact worth tracking, because it is the kind of split that can eventually draw Supreme Court attention.

This is general legal information, not legal advice. It describes a published federal appellate decision applying US federal law in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) as verified on September 5, 2026. Whistleblower deadlines are short and jurisdiction-specific, and outcomes turn on facts this article does not know. Consult a licensed attorney in your jurisdiction about your own situation.

Related articles

• Federal whistleblower laws and how the programs fit together
• Whistleblower protections in Minnesota
• Missouri's public-policy exception for reporting employees
• How Iowa treats retaliatory discharge claims
• At-will employment and the exceptions that limit it

Last updated: 2026-09-05. Details verified as of 2026-09-05.