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Sherwood v. BNSF Railway Co.

United States District Court, D. Idaho

February 25, 2019

BNSF RAILWAY COMPANY, a Delaware corporation, dba The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.




         Before the Court is Plaintiff Robert Sherwood's Motion to Exclude Testimony from Kenneth Rusk (Dkt. 165). The Court will grant in part and deny in part the motion. As will be explained below, Mr. Rusk may testify only as to his personal opinions, but he may not purport to testify on behalf of the Federal Railroad Administration (FRA), nor can he say his opinions are the FRA's. Additionally, he may not describe informal discussions among FRA employees or state what position the FRA had taken on any issue within its jurisdiction, unless those discussions and that position were publicly stated by officials with authority to speak on its behalf. In short, it is the Court's intention that Mr. Rusk not be allowed to bolster his opinion with some suggestion that he has a unique insider's understanding of the FRA's decision-making.


         At trial, Defendant BNSF Railway Co. plans to call Kenneth Rusk as an expert witness. Rusk has 40 years' experience in the railroad industry, including having worked with the FRA for over 20 years, from 1994 to 2016. He plans to testify that “neither the grade crossing surface nor the approaches at the Schweitzer Mountain Road crossing of the BNSF Railway violate FRA regulations.” See Rusk Report, Dkt. 51-2, ¶ 7, at 5. More specifically, he will opine that this crossing did not “deviate” from two FRA track safety standards, one relating to drainage, see 49 C.F.R. § 213.33, and the other to “ballast, ” see 49 C.F.R. § 213.03. See Rusk Report ¶¶ 8-9.

         Plaintiff says Mr. Rusk cannot offer any expert testimony at all because he is a former FRA employee. The United States Department of Transportation has promulgated regulations prohibiting current and former FRA employees from testifying as experts in private litigation. See 49 C.F.R. §§ 9.1, 9.3, 9.9. The relevant regulation provides that, “in legal proceedings between private litigants . . . .[a]n employee shall not testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of the Department.” 49 C.F.R. § 9.9 (c).[1] A separate regulation defines the term “employee” to include both current and former employees. § 9.3.

         The Department of Transportation promulgated these regulations under the authority of the federal housekeeping statute, [2] which provides:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

5 U.S.C. § 301 (emphasis added).

         BNSF contends that the Department of Transportation overstepped its authority because the housekeeping statute does not say anything about former employees. This Court must therefore decide if the Department's regulations are consistent with the housekeeping statute.

         The inquiry is guided by the two-step process set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984). Under Chevron, the first step is to ask “whether Congress has directly spoken to the precise question at issue. Id. at 842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.

         Id. at 842-43. But if “the statute is silent or ambiguous with respect to the specific issue, ” then the Court proceeds to the second step of the Chevron analysis, which is to ask “whether the agency's answer is based on a permissible construction of the statute.” Id. at 843. A court may not, however, defer to an agency interpretation that is “arbitrary, capricious, or manifestly contrary to the statute.” Id.

         The Court's first task under Chevron is to determine whether the housekeeping statute authorizes the Department of Transportation to establish rules governing testimony of former employees. There is no binding authority on this topic and just a handful of courts have wrestled with this precise issue. They all reached the same conclusion, however, that the regulations are invalid to the extent they purport to apply to former employees. As one court put it: “In short, the text, structure, and purpose of the Housekeeping Statute all compel the conclusion that the phrase ‘conduct of its employees' refers to current employees alone and, thus, that USDOT's regulations regulating when ‘employees' may testify are invalid to the extent they purport to apply to former employees.” Koopmann v. United States Dep't of Transp., 335 F.Supp.3d 556 (S.D.N.Y. 2018) (citing La. Dep't of Transp. & Dev. v. United States Dep't of Transp., No. 15-CV-2638 (RGJ), 2015 WL 7313876 (W.D. La. Nov. 20, 2015); Gulf Oil Corp. v. Schlesinger, 465 F.Supp. 913, 917 (E.D. Pa. 1979) (stating in dictum that former employees could be deposed because agency regulations to the contrary were “based upon 5 U.S.C. § 301, which on its face applies only to employees and not former employees of government agencies and departments”); Gulf Grp. Gen. Enters. Co. W.L.L. v. United States, 98 Fed.Cl. 639, 644 (2011) (stating in dictum that the agency's Touhy regulations could not be applied to former employees because “the language of the statute at 5 U.S.C. § 301 authorizes prescribing regulations for ‘the conduct of its employees,' that is, present employees”).

         The Court agrees and, without belaboring the point, will adopt the reasoning contained in these decisions. Koopmann, in particular, is relevant as it considered and rejected many of the same arguments plaintiff advances here. The central teaching of Koopmann - and the Court agrees with it - is that the statutory term “employee” unambiguously covers only current employees - not current and former employees. See 335 F.Supp. at 560-65. The Court also notes, more generally, that construing the housekeeping statute to cover former employees would likely raise First Amendment issues. Accord Id. at 564 (“construing the statute to mean that a person who works for a federal agency, however briefly, is forever subject to that agency's regulatory authority would raise a host of practical - if not constitutional - questions, ”; citing United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir. 1972) (recognizing that the First Amendment sets limits on the government's authority to regulate the speech of a former federal employee)). A former employee such as Mr. Rusk should logically be permitted to testify regarding his personal opinions, so long as he does not purport to announce official FRA policy, reveal privileged information, or otherwise undermine the governmental interests the Touhy ...

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