          United States Court of Appeals
                        For the First Circuit


No. 14-1965

                           JASON WORCESTER,

                         Plaintiff, Appellee,

                                  v.

                SPRINGFIELD TERMINAL RAILWAY COMPANY,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                         Howard, Chief Judge,
                Torruella and Barron, Circuit Judges.


     Ryan P. Dumais, with whom Glen L. Porter and Eaton Peabody
were on brief, for appellant.
     Marc T. Wietzke, with whom Flynn & Wietzke, P.C. was on brief,
for appellee.


                            June 29, 2016
            BARRON, Circuit Judge.         Defendant, Springfield Terminal

Railway   Company     ("Springfield"),      appeals   from   a   jury   verdict

awarding punitive damages to the plaintiff, Jason Worcester, under

the whistleblower provisions of the Federal Railroad Safety Act

(the "FRSA").       49 U.S.C. § 20109.        Springfield argues that the

District Court gave the jury an incorrect instruction as to the

standard for awarding punitive damages.          We affirm.

                                      I.

            On October 6, 2011, Springfield reported a leak of

hydraulic     fluid    to   the   Maine     Department    of     Environmental

Protection.      At that time, the plaintiff, Worcester, was an

employee of Springfield.       He became involved in a dispute with his

supervisor about the safety implications of cleaning up the spill

and was eventually fired. He then brought suit against Springfield

under the FRSA's whistleblower protection provision, 49 U.S.C. §

20109.      Following the trial, the jury awarded the plaintiff

$150,000 in compensatory damages and an additional $250,000 in

punitive damages.      This appeal followed.

                                      II.

            We begin with Worcester's challenge to our appellate

jurisdiction,    which      depends   on    Worcester's      contention   that

Springfield failed to timely file its notice of appeal. Generally,

a notice of appeal must be filed "within 30 days after entry of

the judgment or order appealed from."          Fed. R. App. P. 4(a)(1)(A).


                                       - 2 -
Here, the notice was filed much later.    Federal Rule of Appellate

Procedure 4(a)(4)(A) provides, however, that "[i]f a party timely

files" a motion for a new trial, "the time to file an appeal runs

for all parties from the entry of the order disposing of the last

such remaining motion."    And the parties agree that Springfield

timely filed a motion for a new trial.    The question, therefore,

is whether that motion tolled the clock for filing the notice of

appeal.

           Worcester contends that the clock was not tolled because

there was no "order disposing of" that new trial motion.    But we

do not agree.   The judgment in this case was entered on June 27,

2014.   On July 24, 2014, Springfield filed a timely Rule 59 motion

for a new trial.   The plaintiff filed a response, and, on August

18, 2014, the District Court held a telephone conference with both

parties regarding the motion for a new trial.     On that call, in

light of the plaintiff's response, Springfield withdrew its motion

for a new trial, at which point the following colloquy occurred:

           THE COURT: All right. So I'm going to just
           take that as a verbal motion to withdraw that
           motion, and we will just declare it withdrawn,
           from our perspective, unless you wanted to
           file something, Mr. Porter.
           MR. PORTER: No, that's fine, Your Honor.
           THE COURT: All right. So then -- so that's
           off the table, then, we don't have to worry
           about that anymore.     And is that the only
           pending motion in the case, then? All right.
           MR. WIETZKE: Yes, Your Honor.
           MR. PORTER: Yes, Your Honor.



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          THE COURT:    Okay. So that's decided as of
          today, and clocks are running.

Then, that same day, an electronic entry was entered on the docket

noting: "ORAL WITHDRAWAL of: . . . MOTION for New Trial by

SPRINGFIELD TERMINAL RAILWAY COMPANY."

          The District Court's verbal ruling on the motion to

withdraw left no pending motions remaining before the District

Court, and -- as the District Court stated -- began the clock

running on the time to appeal. Thus, there was an "order disposing

of" the motion, and so the clock for filing the notice of appeal

was tolled.   See De León v. Marcos, 659 F.3d 1276, 1281 (10th Cir.

2011) ("[T]he district court's order acknowledging the withdrawal

of De Leon's Rule 59 motion is sufficient for purposes of Rule

4(a)(4)(A)."); United States v. Rodríguez, 892 F.2d 233, 236 (2d

Cir. 1989) ("[T]he filing of the motion for reconsideration stayed

the running of the time for appeal under [Federal Rule of Appellate

Procedure] 4(b), even though the motion was withdrawn."); Brae

Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1442 (9th Cir.

1986) ("[A]n order was issued disposing of the Rule 59 motion.

The district judge referred to the motion and declared that it had

been withdrawn."); see also Black's Law Dictionary 1270 (10th ed.

2014) ("An order is the mandate or determination of the court upon

some subsidiary or collateral matter arising in an action . . . ."




                                  - 4 -
(quoting    1    Henry   Campbell    Black,       A   Treatise    on   the   Law   of

Judgments, § 1, at 5 (2d ed. 1902))).

            In    arguing   to      the     contrary,    Worcester      relies     on

Vanderwerf v. SmithKline Beecham Corp., 603 F.3d 842 (10th Cir.

2010).     But in that case, the appellants filed their notice of

appeal on the same day that they filed a notice of withdrawal and

thus before the district court had a chance to respond in any way

to the notice of withdrawal.              See id. at 845.        In this case, by

contrast, the withdrawal of the motion for a new trial occurred

with the involvement of the District Court, which specifically

stated that it was treating the party's statements "as a verbal

motion to withdraw that motion," granted that verbal motion to

withdraw, and noted the withdrawal of the new trial motion on the

docket.    As a result, Springfield's notice of appeal was timely,

and our jurisdiction over this appeal is proper.

                                          III.

            We turn now to the substance of the appeal.                Springfield

challenges the instruction that the District Court gave to the

jury regarding punitive damages.                 "We review de novo preserved

claims of legal error in jury instructions." Drumgold v. Callahan,

707 F.3d 28 (1st Cir. 2013) (quoting Uphoff Figueroa v. Alejandro,

597 F.3d 423, 434 (1st Cir. 2010)).

            The FRSA's whistleblower provision explicitly provides

for punitive damages.         49 U.S.C. § 20109(e)(3).                 It does not


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specify, however, the standard for awarding punitive damages.   The

District Court instructed the jury that it could award punitive

damages if it found that Springfield acted, "[w]ith malice or ill

will or with knowledge that its actions violated federal law or

with reckless disregard or callous indifference to the risk that

its actions violated federal law" (emphasis added).   The District

Court took this standard from Smith v. Wade, 461 U.S. 30, 56

(1983).   There, the Supreme Court looked to general common law

principles -- rather than the standard for awarding punitive

damages adopted by any particular state -- in determining that

this standard is the appropriate one for awarding punitive damages

under 42 U.S.C. § 1983.   See id.

          Springfield argued below, as it argues here, that the

District Court was wrong to adopt the standard that the Court

approved in Smith.   Springfield contends that the District Court

should have instructed the jury to award punitive damages on the

basis of the Maine state-law standard for punitive damages, as

this suit is being brought in federal district court in Maine.

And, accordingly, Springfield contends, the District Court should

have instructed the jury that it could award punitive damages only

if it determined that that Springfield acted with malice, which

Springfield contends is the standard for punitive damages under

Maine state law.   See Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me.

1985).


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               Even assuming Springfield is right about Maine state law

(a proposition that the plaintiff disputes), its argument still

fails.    The Department of Labor is the federal agency charged with

administering       the     FRSA.     See    49     U.S.C.    §    20109(d).         The

Department's Administrative Review Board has interpreted the FRSA

standard for awarding punitive damages to be the same as the Smith

standard.       Petersen v. Union Pac. R.R. Co., ARB Case No. 13-090,

2014 WL 6850019, at *3 (Nov. 20, 2014); see also BNSF Ry. Co. v.

U.S. Dep't of Labor, 816 F.3d 628, 642 (10th Cir. 2016).1                            And

while Springfield argues that this administrative interpretation

of the FRSA is not entitled to deference under Chevron U.S.A. Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

we still find the Administrative Review Board's "interpretation[]

persuasive."        Grosso v. Surface Transp. Bd., 804 F.3d 110, 117

(1st Cir. 2015); see also Skidmore v. Swift & Co., 323 U.S. 134

(1944).

               Congress made clear that a primary purpose of the FRSA

was that "[l]aws, regulations, and orders related to railroad

safety    .     .   .    shall   be   nationally      uniform       to   the    extent

practicable."           49 U.S.C. § 20106.        That goal is hardly advanced

by   --   as    Springfield      argues   we   should    --       adopting     in   each


      1The Tenth Circuit has also applied the Smith standard when
evaluating a punitive damages award under the FRSA, although the
standard was apparently not disputed in that case. See BNSF, 816
F.3d at 642.


                                            - 7 -
individual case the state-law punitive damages standard used by

the particular state in which an FRSA action arises.         Rather, in

order    to     effectuate    Congress's     evident   preference   for

"uniform[ity]" in the "law[s], regulations, and orders related to

railroad safety," it makes sense to apply a single standard

throughout the country.      Id.

              Additionally, the reasons that the Court gave in Smith

for adopting the reckless disregard standard apply equally well

here.   In Smith, the Supreme Court determined that, at common law,

"punitive damages in tort cases may be awarded not only for actual

intent to injure or evil motive, but also for recklessness, serious

indifference to or disregard for the rights of others, or even

gross negligence."     461 U.S. at 48.     And the Court concluded that

nothing about "the policies and purposes of § 1983 itself require

a departure from the rules of tort common law."        Id.

              The same is true regarding the FRSA, and Springfield

makes no argument that if we were to use a single national

standard, it should be the malice standard.       For while Springfield

contends that in Smith no party "argue[d] that the common law,

either in 1871 or now, required or requires a showing of actual

malicious intent for recovery of punitive damages," 461 U.S. at

38-39, Springfield does not argue that Smith's characterization of

the prevailing common law standard for awarding punitive damages




                                    - 8 -
is mistaken or that the common law was different at the time that

the FRSA was passed.

           Springfield's     contention     that   adopting   a   uniform

standard -- as Congress clearly seems to have favored -- would

impermissibly create "federal common law" is also unpersuasive.

Springfield cites several cases for the well-established rule that

there is "no federal general common law." Erie R. Co. v. Tompkins,

304 U.S. 64, 78 (1938); see also Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 640 (1981); Wheeldin v. Wheeler,

373 U.S. 647, 651 (1963).     But when federal courts interpret words

in federal statutes -- here, the words, "punitive damages" -- they

often look to general common law principles in order to determine

the intended meaning of the word.         See, e.g., Microsoft Corp. v.

i4i Ltd. P'ship, 131 S.Ct. 2238, 2245-46 (2011) (relying on the

common law to determine the standard of proof required to show a

patent's invalidity); Dir., Office of Workers' Comp. Programs,

Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994)

(looking to the common law to determine the meaning of the term

"burden of proof" in the Administrative Procedure Act); id. at 282

(Souter, J., dissenting) (same).     Indeed, when, as here, "Congress

uses a common law term and does not otherwise define it, it is

presumed   that   Congress    intended     to   adopt   the   common   law

definition."   United States v. Gray, 780 F.3d 458, 466 (1st Cir.

2015) (quoting United States v. Patterson, 882 F.2d 595, 603 (1st


                                    - 9 -
Cir. 1989)); accord Sekhar v. United States, 133 S. Ct. 2720, 2724

(2013); Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997).

             Springfield argues that even if the common law might be

relevant   in   defining   which      types   of    damages    constitute     the

"punitive damages" that the FRSA allows plaintiffs to recover,

general common law principles may not be relied upon in determining

the standard for awarding them.          But we do not see why the common

law would be relevant only in that limited respect.             Cf. Microsoft

Corp., 131 S.Ct. at 2245-46; D'Oench, Duhme & Co. v. FDIC, 315

U.S. 447, 469-70 (1942) (Jackson, J., concurring) ("I do not

understand Justice Brandeis's statement in Erie R. Co. v. Tompkins,

that 'There is no federal general common law,' to deny that the

common law may in proper cases be an aid to or the basis of decision

of federal questions." (internal citation omitted)); Sony BMG

Music Entm't v. Tenenbaum, 660 F.3d 487, 515 n.27 (1st Cir. 2011)

("Congress     is   presumed    to   legislate     incorporating   background

principles of common law unless it indicates to the contrary.").

Given   that    the   Supreme    Court    looked    to   the   common   law    in

determining both the standard that should govern the award of

punitive damages in Smith, 461 U.S. at 34, and the standard that

governs the award of other damages that Congress provided may be

recovered under § 1983, see Carey v. Piphus, 435 U.S. 247, 257-58

(1978) (construing the standard of compensatory damages under

§ 1983 in light of the common law), we find persuasive the


                                         - 10 -
Administrative Review Board's decision to follow that same course

in resolving the uncertainty presented here.   Accordingly, there

was no error in the District Court's punitive damages instruction.

                               IV.

          For the foregoing reasons, the judgment of the District

Court is affirmed.




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