On February 1, 2016, the Northern District of Indiana ruled in a case brought under the Federal Railroad Safety Act (FRSA) that whether a whistleblower has fulfilled relevant administrative requirements prior to filing suit is a “condition precedent” rather than a “jurisdictional requirement.” King v. Ind. Harbor Belt R.R., 2017 U.S. Dist. LEXIS 43263 (N.D. Ind. Feb. 1, 2017).
Plaintiff, who was employed by the Indiana Harbor Belt Railroad (Company), filed a whistleblower retaliation claim under FRSA, a whistleblower protection statute that is similar in many respects to Section 806 of SOX. Like many other whistleblower protection statutes, the FRSA requires a whistleblower to file a complaint with OSHA within 180 days after the alleged retaliation occurred.
The Company moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff failed to file his complaint with OSHA within the 180 period. The Company argued that failure deprived the court of subject matter jurisdiction. Plaintiff responded that the exhaustion of administrative remedies was a condition precedent, not a jurisdictional requirement. The court ruled in Plaintiff’s favor and denied the motion to dismiss, concluding that a failure to exhaust administrative remedies under the FRSA does not deprive the court of subject matter jurisdiction, but instead is an affirmative defense that the employer bears the burden of proving.
Notably, this ruling departed from the rulings of other courts that have analyzed the same issue under Section 806 of SOX. In particular, other courts have ruled that a whistleblower’s failure to satisfy the exhaustion requirement deprives the court of jurisdiction.