BNSF secures unanimous en banc Ninth Circuit win in FRSA whistleblower lawsuit

Client(s) BNSF Railway Company

Jones Day successfully sought en banc review and obtained a unanimous judgment in favor of BNSF Railway Company in an appeal from a whistleblower retaliation suit brought under the Federal Railroad Safety Act ("FRSA"). The en banc Ninth Circuit affirmed the district courts judgment that BNSF carried its affirmative defense and was thus not liable under the Act. The court corrected a prior panel decision that had heightened the burden on employers attempting to prove their affirmative defense under the FRSA.

Parker v. BNSF Railway Co., No. 22-35695 (9th Cir.)