United States District Court, D. Idaho
ROBERT WILLIAM SHERWOOD and PAMELA LOUISE SHERWOOD, Plaintiffs,
BNSF RAILWAY COMPANY, a Delaware corporation, dba The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.
MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S
MOTION IN LIMINE RE: KENNETH RUSK
LYNN WINMILL U.S. DISTRICT COURT JUDGE.
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.
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.
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). A separate
regulation defines the term “employee” to include
both current and former employees. § 9.3.
Department of Transportation promulgated these regulations
under the authority of the federal housekeeping statute,
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).
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.
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.
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.
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”).
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