Whether the burden of proof in a Federal Railroad Safety Act whistleblower complaint is prima facie or preponderance of evidence

Petitioner, Clyde Carter, Jr., filed a complaint with the Department of Labor alleging retaliatory discharge by his employer BNSF Railway Company for wrongfully terminating him twice in violation of the protection provisions of the Federal Railroad Safety Act, 49 U.S.C. § 42121(b)(2)(B) (i)(ii)(iii) , for having notified BNSF of an on the job injury. Following hearing before the Department of Labor, Office of Administrative Law Judges, the Office found Carter had proven BNSF had violated the protection provisions of the Act and entered an award in favor of Carter. BNSF appealed to the Administrative Review Board which affirmed the Award but on slightly different grounds and BNSF appealed to the Eight Circuit Court of Appeals which set aside the judgment and remanded the complaint for further findings. ii Upon remand, the Office of Administrative Law Judges dismissed Petitioner ’s complaint finding Carter had been dismissed on the first occasion by someone who knew nothing of Carter ’s on the job injury and, the second time due to a mistake and so, retaliation could not have been a factor in either dismissal. On appeal to the Administrative Review Board, the Board affirmed the dismissal of Carter ’s complaint by the Office of Administrative Law Judges but on different grounds. The Board found with regards to both dismissals Carter had not proven the elements of his complaints by a preponderance of evidence pursuant to the Department of Labor, Code of Federal Regulations 29 § 1982.109(a). Carter appealed the dismissal by the ARB to the 8th Circuit Court of Appeals alleging in part the Board erred finding he failed to prove his complaint(s) by a preponderance of evidence pursuant to 29 Code of Federal Regulations § 1982.109(a), rather than the correct burden of proof of prima iii facie evidence pursuant to the employee protection provisions of the Federal Railroad Safety Act, 49 U.S.C. § 42121(b)(2)(B) (i)(ii)(iii) . The 8th Circuit sustained the ARB dismissal of Carter ’s complaint found Complainant finding Carter had failed to prove the elements of his complaint(s) by a preponderance of evidence as required by the Code of Federal Regulations § 1982.109(a). The question presented is: 1. In consideration of Loper Bright Enterprises v. (2024), in a whistleblower Raimondo, 603 U. S. complaint is the burden of proof in the protection provisions of the Federal Railroad Safety Act a prima facie burden pursuant to 49 U.S.C. § 42121(b)(2)(B) (i)(ii)(iii) , or preponderance of evidence pursuant to 29 Code of Federal Regulations § 1982.109(a). iv LIST OF ALL PARTIES Petitioner below) is Clyde Carter, Jr., The Respondent (defendant-appellee below) is the United States Department of Labor and its Secretary Bienvenido E. Laguesma, and Intervener, BNSF Railway Co. STATEMENT OF RELATED CASES The proceedings identified below are directly related to the above-captioned case in this Court. BNSF Ry. Co. v. U.S. Dep ’t of Labor, 867 F.3d 942 (8th Cir. 2017). Clyde Carter v. U.S. Dep ’t of Labor, 108 F. 4th 1028 (8th Cir. 2024). And,