Whether a district court's determination of an employer's affirmative defense under the Federal Railroad Safety Act involves a mixed question of law and fact subject to de novo review or a purely factual finding reviewed for clear error

No question identified. : To the Honorable Elena Kagan, as Circuit Justice for the United States Court of Appeals for the Ninth Circuit: In accordance with this Court’s Rules 13.5, 22, 30.2, and 30.3, Applicant Paul Parker, respectfully requests that the time to file its petition for a writ of certiorari be extended for 60 days, up to and including Monday, October 13, 2025. The Court of Appeals issued its opinion on May 15, 2025 (Exhibit A). Absent an extension of time, the petition would be due August 13, 2025. The jurisdiction of this Court is based on 28 U.S.C. 1254(1). This request has been sent to counsel for BNSF and as of the time of this filing has not responded to this request. It is unknown whether this request is opposed or unopposed. Background This case presents an important and recurring question about the proper standard of appellate review for an employer’s affirmative defense under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109, and how courts apply its incorporated burden-shifting framework from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. § 42121(b). Specifically, the first question is whether a district court’s determination that an employer met its burden to prove, by “clear and convincing evidence,” that it would have taken the same adverse action absent the employee’s protected activity is a mixed question of law and fact subject to de novo review—or a purely factual finding reviewed only for clear error in light of the Supreme Court case U.S. Bank Nat’l Ass’n v. Village at Lakeridge, LLC, 138 S. Ct. 960 (2018). The second question is whether and to what extent evidence showing an employee’s protected activity was a contributing factor in the unfavorable personnel action at step one is incorporated into the employer’s separate same-action affirmative defense at step two. This case arises under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109, which prohibits rail carriers from retaliating against employees for engaging in protected safety-related activities. The statute incorporates the burden-shifting framework of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. § 42121(b), under which an employer may avoid liability only by proving, by “clear and convincing evidence,” that it would have taken the same adverse action absent the protected activity. Curtis Rookaird, a conductor for BNSF Railway Company, was terminated after a single shift in February 2010. During that shift, Rookaird and his crew performed an air-brake test on railcars—a safety procedure that BNSF later claimed was unnecessary and contributed to inefficiency. BNSF cited four reasons for the termination: inefficiency, dishonesty in reporting time, failure to sign a timesheet, and failure to comply with instructions. Rookaird filed suit under the FRSA, alleging that his termination was in retaliation for engaging in protected activity. Notably, a jury previously found that BNSF had failed to prove its affirmative defense by clear and convincing evidence, however, the Ninth Circuit vacated the verdict and remanded on issues related to Plaintiff’s initial burden. On remand, the parties stipulated to a bench trial. The district court found that Rookaird had met his burden to show that the protected activity was a contributing factor in his termination. However, contrary to the original jury verdict, the court also found that BNSF had met its affirmative defense by proving, by clear and convincing evidence, that it would have fired Rookaird even absent the protected activity. The district court came to this conclusion citing Rookaird’s single unsigned time-sheet as significant and dismissible, a 28minute discrepancy on a timesheet that did not result in overpay as grossly dishonest and dismissible, and it insubordinate and dismissible for Rookaird to have eaten his lunch in the breakroom before leaving after being told to go home