Michael Oakey v. US Airways Pilots Disability

Filing

OPINION filed [1447474] (Pages: 19) for the Court by Judge Henderson [12-5115]

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2013

Decided July 19, 2013
No. 12-5115

MICHAEL S. OAKEY,
APPELLANT
v.
US AIRWAYS PILOTS DISABILITY INCOME PLAN,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-02373)

Anthony F. Shelley argued the cause for the appellant.
Timothy P. O’Toole was with him on brief. Jeffrey M. Hahn
entered an appearance.
Mark W. Robertson argued the cause for the appellee.
Everett C. Johnson, Jr. entered an appearance.
Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Michael S.
Oakey, a former pilot for U.S. Airways, Inc. (US Airways),
appeals the district court’s dismissal of Oakey’s claim under
the Employee Retirement Income Security Act (ERISA), 29

Page 1 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

2
U.S.C. §§ 1001 et seq., seeking benefits from a collectivelybargained pilot disability plan. We conclude that section 204
of the Railway Labor Act (RLA), 45 U.S.C. §§ 151 et seq.,
vests in the “applicable adjustment board” exclusive
jurisdiction over Oakey’s claim because it is grounded in the
application and interpretation of a collective bargaining
agreement. Accordingly, we affirm the dismissal for lack of
jurisdiction.
I.
A. Statutory Background
ERISA is a “comprehensive statute designed to promote
the interests of employees and their beneficiaries in employee
benefit plans” and “to provide a uniform regulatory regime
over employee benefit plans.” Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 90 (1983); Aetna Health Inc. v. Davila, 542 U.S.
200, 208 (2004). ERISA requires notice of the denial of an
employee disability claim, “ ‘setting forth the specific reasons
for such denial, written in a manner calculated to be
understood by the participant,’ ” and a reasonable opportunity
for a “ ‘a full and fair review’ ” of the denial. Heller v. Fortis
Benefits Ins. Co., 142 F.3d 487, 492 (D.C. Cir. 1998) (quoting
29 U.S.C. § 1133). ERISA also grants a disability claimant
the right to “sue ‘to recover benefits due to him under the
terms of his plan.’ ” Fitts v. Fed. Nat’l. Mortg. Ass’n, 236
F.3d 1, 4 (D.C. Cir. 2001) (quoting 29 U.S.C.
§ 1132(a)(1)(B)). Its “comprehensive legislative scheme”
includes “an integrated system of procedures for
enforcement” that the Congress intended to be “exclusive”
and to preempt “any state-law cause of action that duplicates,
supplements, or supplants the ERISA civil enforcement
remedy.” Davila, 542 U.S. at 208-09 (quotation marks
omitted); see 29 U.S.C. § 1144. Exclusive jurisdiction over
an ERISA-based claim lies in federal district court. Bd. of
Trustees of Hotel & Rest. Emps. Local 25 v. Madison Hotel,

Page 2 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

3
Inc., 97 F.3d 1479, 1483-84 (D.C. Cir. 1996) (citing 29 U.S.C.
§ 1132(e)(1)).
The more narrowly focused RLA was initially limited to
the railroad industry but has been applied to disputes between
air carriers and their employees since 1936. Air Line Pilots
Ass’n, Int’l v. Delta Air Lines, Inc., 863 F.2d 87, 88 (D.C.
Cir. 1988) (citing 45 U.S.C. § 181 (1982)); see also Int’l
Ass’n of Machinists v. Cent. Airlines, Inc., 372 U.S. 682,
685-86 (1963)). It was enacted “to promote stability in
labor-management relations by providing a comprehensive
framework for resolving labor disputes.” Hawaiian Airlines,
Inc. v. Norris, 512 U.S. 246, 252 (1994). Under section 204
of the RLA, such disputes “growing out of grievances, or out
of the interpretation or application of agreements concerning
rates of pay, rules, or working conditions . . . may be referred
by petition of the parties or by either party to an appropriate
adjustment board.” 45 U.S.C. § 184. Each air carrier has a
duty “to establish a board of adjustment,” id., and the
statutory grievance procedure is “ ‘mandatory, exclusive, and
comprehensive,’ ” Delta Airlines, 863 F.2d at 88 (quoting
Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R. Co.,
373 U.S. 33, 38 (1963)). Judicial review of the board of
adjustment’s decision is limited to three categories expressly
set out in the RLA. Id. (citing Union Pac. R.R. v. Sheehan,
439 U.S. 89, 93 (1978); 45 U.S.C. § 153 First (p)).
B. Factual Background
Oakey was employed as an airline pilot by US Airways
from 1988 to 2002 and was enrolled in the US Airways Pilot
Disability Plan (Plan), which initially took effect on January
1, 1975—the effective date of ERISA—as the result of
collective bargaining between US Airways’ predecessor
(Allegheny Airlines) and the Air Line Pilots Association
(ALPA).
The original Plan agreement contained the
following provision governing the term of its coverage: “Each

Page 3 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

4
pilot will become covered for benefits on the date he is
employed and is classified as being in active service. If a
pilot becomes classified as being other than in active service,
he will no longer be covered as of the date of such change in
employment status.” Allegheny Airlines Pilot’s Long Term
Disability & Loss of License Plan (1975 Disability Plan) art.
5.1 (Jan. 1, 1975) (JA 593). The 1975 Disability Plan does
not define “active service” or address the effect of a pilot’s
furlough status on benefits eligibility. In 1997, however, US
Airways produced an “amended and restated” version of the
plan. USAir, Inc. Pilot Disability Plan (effective Feb. 18,
1997) (1997 Amendment) (JA 63). The 1997 Amendment is
signed by a US Airways officer but not by an ALPA
representative. Id. at 18-19. It defines “active service” as
“those periods during which the Employee is in active payroll
status with the Employer,” id. art. 1.2, and specifically
provides that “[b]enefits payable [t]hereunder shall cease
upon . . . the date the Participant is placed on furlough status
from the Employer,” id. art. 3.6.
Under both the 1975 Disability Plan and the 1997
Amendment, benefit claims are reviewed and decided by the
US Airways Retirement Board, see also Letter of Agreement
Between US Air, Inc. and the airline Pilots re: RETIREMENT
BOARD (JA 558) § 1.6. (Feb. 9, 1990). The Retirement
Board consists of four members—two selected by US
Airways and two by ALPA. A decision by agreement of three
or more Retirement Board members is “final and binding.”
Id. Absent such agreement, an “Impartial Referee” is
designated to sit as a fifth member of the Retirement Board
and a subsequent decision by three or more members is then
“final and binding upon all parties.” Id. § 2.1.
In 2001, after he was diagnosed with leukemia, Oakey
submitted a claim for disability benefits to the Retirement
Board, which approved the claim effective January 30, 2002.

Page 4 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

5
The following January, US Airways notified Oakey he was to
be “furloughed” effective February 4, 2003 as part of a fleet
reduction. Letter of US Airways to Michael S. Oakey (Jan. 9,
2003) (JA 441). On March 11, 2003, the Administrator of the
Plan (Administrator) advised Oakey that, based on his
furlough date, his disability benefits had terminated on
February 4, 2003.
Oakey subsequently requested, through legal counsel,
that the Administrator provide a “copy of the disability
policy.” Letter from Bruce E. Woodske to ING at 1 (Mar. 25,
2003) (JA 175). Oakey’s counsel was referred to US
Airways, which transmitted a copy of Article 3.6 of the 1997
Amendment stating, to repeat, that disability benefits cease on
the date a participant is “placed on furlough status.”
Facsimile from US AIRWAYS to Bruce E. Woodske (Apr. 1,
2003) (JA 182). Oakey’s counsel subsequently requested “the
entire benefits plan with all amendments to the present.”
Facsimile from Bruce E. Woodske to US Airways (Apr. 21,
2003) (JA 190). Nonetheless, Oakey “never received a copy
of the Disability Plan from US Airways, despite the
requirement of ERISA § 104(b)(4), 29 U.S.C. § 1104(b)(4),
that such plan documents be provided promptly upon
request.” Second Am. Compl. (Compl.) ¶ 27. In August
2003, Oakey took early (and reduced) retirement.
In November 2003, Oakey and six other retired US
Airways pilots filed an action under ERISA against, inter alia,
US Airways and the Plan for benefits allegedly owed. On
October 21, 2011, Oakey, the only remaining plaintiff, filed a
“Second Amended Complaint” (Complaint) against the Plan,
the only remaining defendant, alleging a single claim for
unpaid benefits resulting from the wrongful termination of his
disability benefits in February 2003. The Complaint asserts
that the 1997 Amendment was ineffective because it was not
signed by an ALPA representative, Compl. ¶¶ 7-10, and that

Page 5 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

6
Oakey’s disability coverage was therefore governed by the
1975 Disability Plan, which does not terminate benefits upon
an employee’s furlough. Compl. ¶¶ 10, 40-42.
On December 12, 2011, the Plan moved under Fed. R.
Civ. P. 12(b)(1) to dismiss for lack of subject matter
jurisdiction on the ground that the RLA’s mandatory
arbitration provision deprived the district court of jurisdiction.
On March 19, 2012, the district court granted the Plan’s
motion and dismissed the action. Oakey v. U.S. Airways
Pilots Disability Income Plan, 839 F. Supp. 2d 225 (D.D.C.
2012). Oakey timely appealed.
II.
We review de novo the district court’s grant of a motion
to dismiss for lack of subject matter jurisdiction. Nat’l Air
Traffic Controllers Ass’n v. Fed. Serv. Impasses Panel, 606
F.3d 780, 786 (D.C. Cir. 2010) (quotation marks omitted).
For the reasons set out below, we agree with the district
court’s Rule 12(b)(1) dismissal.
In Air Line Pilots Association, International v. Northwest
Airlines, Inc., 627 F.2d 272 (D.C. Cir. 1980), we first
addressed the interplay between the RLA and ERISA and
concluded that the latter (and later-enacted)
statute—notwithstanding its broad preemption of state law
remedies—has no preemptive effect on other federal
enactments—including the RLA. As we noted in Northwest,
the Congress “made its will very clear” on this point when it
declared in section 514(d) of ERISA:
“Nothing in this title [] shall be construed to
alter, amend, modify, invalidate, impair, or supersede
any law of the United States (except as provided in
sections 1031 and 1137(b) of this title) or any rule or
regulation issued under any such law.”

Page 6 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

7
627 F.2d at 275 (quoting 29 U.S.C. § 1144(d) (alterations in
original)).
Given the “strong, comprehensive, express
statement that ERISA is not to be read as displacing by
implication any pre-existing federal legislation,” the
Northwest court concluded that ERISA has no effect on RLA
section 204’s “mandate[ that] the carrier or the union [] refer
disputes over the application or interpretation of bargaining
agreements covering [rates of pay, rules, or working
conditions’ terms including employee pensions], if they
cannot be resolved informally, to arbitration.” Id. at 275-76
(quoting 45 U.S.C. § 184 (emphasis added)). In Northwest,
we emphasized that referral to the board of adjustment for
arbitration “is a compulsory statutory obligation.” Id. at 275.
Thus, referral to the Retirement Board is compulsory for
Oakey because the dispute is plainly “over the application or
interpretation” of the Plan, which controls the outcome
whether the 1975 or the 1997 version governs. Accordingly,
under Northwest, exclusive jurisdiction over the dispute lies
with the Retirement Board and the district court correctly
dismissed the case for lack of jurisdiction. Nonetheless,
Oakey challenges the district court’s dismissal on three
grounds.
A. Continuing Vitality of Northwest
First, Oakey asserts that Northwest is no longer good law
and that we should overrule it through an “Irons footnote.” It
is true that, in a case “in which action by the court en banc
may be called for, but the circumstances of the case or the
importance of the legal questions presented do not warrant the
heavy administrative burdens of full en banc hearing,” a panel
of the court may use an “Irons footnote” to “overrul[e] a . . .
precedent which, due to an intervening Supreme Court
decision, or the combined weight of authority from other
circuits, a panel is convinced is clearly an incorrect statement
of current law.” Policy Statement on En Banc Endorsement

Page 7 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

8
of Panel Decisions (Irons Footnote Policy) at 1 (Jan. 17,
1996).1 But we are not the least convinced intervening
caselaw has vitiated Northwest’s rationale.
Oakey contends that Northwest is inconsistent with the
United States Supreme Court’s holding in Atchison, Topeka &
Santa Fe Ry. Co. v. Buell, 480 U.S. 557 (1987), which he
characterizes as “highly suggestive that the RLA does not
preclude ERISA claims.” Appellant’s Br. 35. We disagree.
In Buell, the Court concluded that the RLA did not preclude
the plaintiff’s negligence claim against his employer under the
Federal Employers’ Liability Act, which “provides railroad
workers with substantive protection against negligent conduct
that is independent of the employer’s obligations under its
collective-bargaining agreement [and] also affords injured
workers a remedy suited to their needs.” 480 U.S. at 565
(emphasis added). In so holding, however, the Buell Court
confirmed its decision in Andrews v. Louisville & Nashville
R.R. Co., 406 U.S. 320, 325 (1972), that for a “claim based
squarely on an alleged breach of the collective-bargaining
agreement,” the Congress “intended the RLA dispute
resolution mechanism to be mandatory” and “courts were
therefore foreclosed from addressing claims that properly
arise under the RLA.” Buell, 480 U.S. at 566. In Northwest,
we recognized the same distinction between a claim involving
“the application and interpretation of the pension plan,” for
which arbitration was compulsory under the RLA, and those
claims stating “violations of ERISA which are independent of
the coverage and meaning of the pension plan,” noting that
the latter may be litigated in court. Northwest, 627 F.2d at
1

In an Irons footnote, named after the holding in Irons v. Diamond,
670 F.2d 265, 267-68 & n.11 (D.C. Cir. 1981), the panel “seek[s] for
its proposed decision the endorsement of the en banc court, and
announce[s] that endorsement in a footnote to the panel’s opinion.”
Irons Footnote Policy at 1.

Page 8 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

9
274. Oakey’s claim for unpaid disability benefits is of the
former type because it involves the application and
interpretation of the 1975 Disability Plan and/or the 1997
Amendment.
Oakey also argues Northwest is “contrary to” Supreme
Court decisions that narrowly construe ERISA’s exception to
its state law preemption provision for “any law of any State
which regulates insurance,” 29 U.S.C. § 1144(b)(2)(A). See
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987); Rush
Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002); Aetna
Health Inc. v. Davila, 542 U.S. 200 (2004). We see no
conflict between Northwest and the cited decisions.
Preemption of state law is the rule for ERISA enforcement
and is expansively and inclusively worded, directing that
ERISA’s provisions “shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee
benefit plan described.” See 29 U.S.C. § 1144(a). It is
subject to only a few express statutory exceptions, including
the narrowly circumscribed exception for state laws regulating
insurance. See 29 U.S.C. § 1144(b). It is therefore no
surprise that the Supreme Court accords the preemption
provision an “expansive sweep.” Dedeaux, 481 U.S. at 47;
see also Davila, 542 U.S. at 208-09 (2004) (citing ERISA’s
“expansive pre-emption provisions”); Rush Prudential HMO,
536 U.S. at 376 (noting ERISA’s “extraordinarily preemptive
power”). The language of ERISA section 514(d) is no less
expansive or unequivocal in clarifying that “[n]othing” in
ERISA can “alter, amend, modify, invalidate, impair, or
supersede any law of the United States”—including the RLA.
29 U.S.C. § 1144(d) (emphases added). Section 514(d)
therefore warrants a comparably broad application.
Finally, we note that notwithstanding Oakey’s claim
Northwest’s force has faded in the years since it issued, every
circuit that has considered the issue has reached the same

Page 9 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

10
conclusion as Northwest: that the district court lacks ERISA
jurisdiction over a dispute involving the interpretation of a
collectively-bargained benefit plan within the exclusive
jurisdiction of the appropriate adjustment board pursuant to
the RLA. See, e.g., Ballew v. Cont’l Airlines, Inc., 668 F.3d
777, 782-87 (5th Cir. 2012); Stephens v. Ret. Income Plan for
Pilots of U.S. Air, Inc., 464 F.3d 606, 613-14 (6th Cir. 2006);2
Coker v. Trans World Airlines, Inc., 165 F.3d 579, 583-84
(7th Cir. 1999); Long v. Flying Tiger Line, Inc. Fixed Pension
Plan for Pilots, 994 F.2d 692, 695 (9th Cir. 1993); Bowe v.
Northwest Airlines, Inc., 974 F.2d 101, 103 (8th Cir. 1992); de
la Rosa Sanchez v. Eastern Airlines, Inc., 574 F.2d 29, 31-33
(1st Cir. 1978).
B. Arbitration Standard
Second, Oakey asserts that, even if Northwest’s
preclusion rule survives, it does not apply here. He contends
that for the rule to apply (1) the claim “must involve
interpretation or construction of the [collective bargaining
agreement]’s terms,” Appellant’s Br. 22 (citing Air Line
Pilots Ass’n, Int’l v. Eastern Air Lines, Inc., 869 F.2d 1518,
1521 (D.C. Cir. 1989) (emphasis in brief)) and (2) “the
interpretative issue must be dispositive or conclusive” of the
claim, id. at 23 (citing Brown v. Ill. Cent. R.R. Co., 254 F.3d
654, 668 (7th Cir. 2001) (emphasis in brief)). As we held in
Northwest, “non-frivolous statutory claim[s] under ERISA”
are not subject to RLA preclusion if they are “independent of
the correct construction of the pension plan.” 627 F.2d at
277; see also Brown, 254 F.3d at 658 (“[T]he claim will be
preempted if it cannot be adjudicated without interpreting the
CBA, or if it can be conclusively resolved by interpreting the

2

The Sixth Circuit has since held that the adjustment board referral
requirement is not jurisdictional. See Emswiler v. CSX Transp., Inc.,
691 F.3d 782, 788 (6th Cir. 2012), discussed infra pp.17-19.

Page 10 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

11
CBA.” (internal quotation marks omitted)); Everett v. USAir
Group, 927 F. Supp. 478, 482 (D.D.C. 1996) (“RLA’s
mandatory arbitration procedures apply . . . to issues arising
out of the interpretation of the collective bargaining
agreement and not to independent statutory claims under
ERISA.”), aff’d, 194 F.3d 137 (D.C. Cir. 1999) (mem.).
Section 204 refers to arbitration of only those “disputes . . .
growing . . . out of the interpretation or application of
agreements.” 45 U.S.C. § 184. But Oakey’s claim is plainly
such a dispute. He acknowledges that if the 1997 Amendment
was effective, his benefits were properly terminated pursuant
to its unambiguous terms. See Appellant’s Br. 11 (“The Plan
would win if the 1997 Restatement controls because Oakey
does not contest that it contains a provision requiring the
termination of disability benefits upon a furlough.”). If, as
Oakey asserts, the 1997 Amendment was ineffective—
because it was not signed by an ALPA representative, see
1997 Amendment at 19—Oakey might be entitled to benefits
under the 1975 Disability Plan if his furlough did not render
him “classified as being other than in active service” so as to
end his benefits coverage thereunder—again, an issue of
contract interpretation and one that is dispositive. Whichever
version of the Plan agreement controls, its interpretation or
application governs the outcome.3
3

Oakey claims the Plan is foreclosed from arguing that arbitration
was required based on the need to interpret the 1975 Disability Plan
because “the Plan’s defense must stand or fall” on whether the 1997
Amendment—which, he claims, the Plan sent Oakey’s counsel “as the
reason for its determination”—“is legitimate.” Appellant’s Br. 25
(asserting Plan “sent Oakey as the reason for its determination the one
page of the purported 1997 Restatement that includes the section
allowing for termination of benefits upon furlough”). “This is so,” he
maintains, “because it is a cardinal rule of ERISA jurisprudence that
a plan’s decision to deny benefits can be upheld, if at all, solely upon
‘[the] rationales that were specifically articulated in the administrative

Page 11 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

12
C. Forfeiture of Preclusion Argument
Finally, Oakey argues the Plan forfeited reliance on
Northwest’s preclusion rule. Recognizing that if the rule is
“jurisdictional”—that is, if section 514(d) vests exclusive
jurisdiction over this dispute in the Retirement Board—his
forfeiture argument fails, he asserts that the arbitration
requirement is “a non-jurisdictional, claims-processing rule
. . . subject to forfeiture.”4 Appellant’s Br. 50 (citing
Menominee Indian Tribe of Wis. v. United States, 614 F.3d
519, 524 (D.C. Cir. 2010)); see Arbaugh v. Y&H Corp., 546
U.S. 500, 514 (2006) (“ ‘[S]ubject-matter jurisdiction,
because it involves a court’s power to hear a case, can never
be forfeited or waived.’ ” (quoting United States v. Cotton,

record as the basis.’ ” Id. at 24-25 (quoting Flinders v. Workforce
Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180, 1190
(10th Cir. 2007)). Oakey’s argument overlooks that there is no
administrative record because Oakey failed to pursue mandatory
arbitration to create one. Had he done so and challenged the validity
of the 1997 Amendment, the Plan would have provided a response and
we would have an administrative record to review. But we do not.
4

The Plan asserts Oakey waived his non-jurisdictional argument
by failing to raise it below. Appellee’s Br. 35. We believe it
appropriate, however, to address the argument as it bears on subject
matter jurisdiction. See Beckett v. Air Line Pilots Ass’n, 59 F.3d 1276,
1278 n.2 (D.C. Cir. 1995) (“ ‘[E]very federal appellate court has a
special obligation to satisfy itself not only of its own jurisdiction, but
also that of the lower courts in a cause under review, even though the
parties are prepared to concede it.’ ” (quoting Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986) (quotation marks omitted;
alteration in original)); see also Roosevelt v. E.I. Du Pont de Nemours
& Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992) (“Courts of appeals are
not rigidly limited to issues raised in the tribunal of first instance; they
have a fair measure of discretion to determine what questions to
consider and resolve for the first time on appeal.”).

Page 12 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

13
535 U.S. 625, 630 (2002))). In Northwest, we treated RLA
section 204 as vesting exclusive jurisdiction of covered
disputes in the applicable adjustment board. See Northwest,
627 F.32d at 275 (“The arbitral board’s jurisdiction is
exclusive and cannot be avoided by efforts to bring the
dispute directly into court.”). Revisiting the issue now, we
reach the same conclusion.
In recent decisions, the Supreme Court has warned
against the “profligate” use of “jurisdictional” to describe
what are in fact non-jurisdictional requirements, specifically
claim-processing rules. In Arbaugh v. Y&H Corp., the Court
advised:
“Jurisdiction,” this Court has observed, “is a
word of many, too many, meanings.” Steel Co. v.
Citizens for Better Environment, 523 U.S. 83, 90
(1998) (internal quotation marks omitted). This
Court, no less than other courts, has sometimes been
profligate in its use of the term. For example, this
Court and others have occasionally described a
nonextendable time limit as “mandatory and
jurisdictional.” See, e.g., United States v. Robinson,
361 U.S. 220, 229 (1960). But in recent decisions,
we have clarified that time prescriptions, however
emphatic, “are not properly typed ‘jurisdictional.’ ”
Scarborough v. Principi, 541 U.S. 401, 414 (2004).
. . .
On the subject-matter jurisdiction/
ingredient-of-claim-for-relief dichotomy, this Court
and others have been less than meticulous. . . .
Judicial opinions, the Second Circuit incisively
observed, “often obscure the issue by stating that the
court is dismissing ‘for lack of jurisdiction’ when
some threshold fact has not been established, without
explicitly considering whether the dismissal should
be for lack of subject matter jurisdiction or for failure

Page 13 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

14
to state a claim.” Da Silva [v. Kinsho Int’l Corp., 229
F.3d 358, 361 (2d Cir. 2000)]. We have described
such unrefined dispositions as “drive-by
jurisdictional rulings” that should be accorded “no
precedential effect” on the question whether the
federal court had authority to adjudicate the claim in
suit. Steel Co., 523 U.S., at 91.
546 U.S. at 515-16; see also Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010); Union Pac. R.R. Co. v. Bhd. of
Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment,
558 U.S. 67, 71 (2009); Eberhart v. United States, 546 U.S.
12, 16-19 (2005) (per curiam); Kontrick v. Ryan, 540 U.S.
443, 454-55 (2004); Carlisle v. United States, 517 U.S. 416,
434-35 (1996) (Ginsburg, J., concurring). In order to address
the mislabeling point, Arbaugh drew a “readily administrable
bright line” to segregate jurisdictional prerequisites from nonjurisdictional mandatory claim-processing rules:
If the Legislature clearly states that a threshold
limitation on a statute’s scope shall count as
jurisdictional, then courts and litigants will be duly
instructed and will not be left to wrestle with the
issue. But when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in
character.
Arbaugh, 546 U.S. at 515–16 (citation and footnote omitted).
Applying this test, the Arbaugh court concluded that the 15employee threshold for coverage under Title VII of the Civil
Rights Act of 1964, see 42 U.S.C. § 2000e(b), is not
jurisdictional, noting that “the 15-employee threshold appears
in a separate provision [from Title VII’s jurisdictional
provision] that ‘does not speak in jurisdictional terms or refer
in any way to the jurisdiction of the district courts.’ ” Id. at

Page 14 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

15
515 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 394 (1982)). We find this to be a quite different case.
The jurisdictional inquiry requires an “examination of the
‘condition’s text, context, and relevant historical treatment,”
Chevron Mining, Inc. v. NLRB, 684 F.3d 1318, 1328 (D.C.
Cir. 2012) (quoting Reed Elsevier, 559 U.S. at 166). We
begin, as with all statutory construction, with the text itself.
Section 204 of the RLA provides in full:
The disputes between an employee or group of
employees and a carrier or carriers by air growing
out of grievances, or out of the interpretation or
application of agreements concerning rates of pay,
rules, or working conditions, including cases pending
and unadjusted on April 10, 1936 before the National
Labor Relations Board, shall be handled in the usual
manner up to and including the chief operating
officer of the carrier designated to handle such
disputes; but, failing to reach an adjustment in this
manner, the disputes may be referred by petition of
the parties or by either party to an appropriate
adjustment board, as hereinafter provided, with a full
statement of the facts and supporting data bearing
upon the disputes.
It shall be the duty of every carrier and of its
employees, acting through their representatives,
selected in accordance with the provisions of this
subchapter, to establish a board of adjustment of
jurisdiction not exceeding the jurisdiction which may
be lawfully exercised by system, group, or regional
boards of adjustment, under the authority of section
153 of this title.
Such boards of adjustment may be established
by agreement between employees and carriers either

Page 15 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

16
on any individual carrier, or system, or group of
carriers by air and any class or classes of its or their
employees; or pending the establishment of a
permanent National Board of Adjustment as
hereinafter provided. Nothing in this chapter shall
prevent said carriers by air, or any class or classes of
their employees, both acting through their
representatives selected in accordance with
provisions of this subchapter, from mutually
agreeing to the establishment of a National Board of
Adjustment of temporary duration and of similarly
limited jurisdiction.
45 U.S.C. § 184. The statutory language “clearly states” that
the arbitration requirement is jurisdictional, expressly
“ ‘speak[ing] in jurisdictional terms.’ ” Arbaugh, 546 U.S. at
515 (quoting Zipes, 455 U.S. at 394). It directs that “every
carrier and . . . its employees” establish a board of adjustment
“of jurisdiction not exceeding the jurisdiction which may be
lawfully exercised by . . . boards of adjustment, under [RLA
§ 3, 45 U.S.C. § 153]”—which cited provision establishes a
“ ‘National Railroad Adjustment Board [(NRAB)] . . . [t]o
have jurisdiction over disputes involving” various rail carrier
employees. 45 U.S.C. § 153 First. In fact, the Supreme Court
recently confirmed, in a non-drive-by-ruling, that section 204
is jurisdictional.
In Union Pacific Railroad Co. v.
Brotherhood of Locomotive Engineers & Trainmen General
Committee of Adjustment, the Court concluded that, while the
Congress “authorized the Board to prescribe rules for the
presentation and processing of claims,” such rules as the
NRAB might adopt are not jurisdictional because “Congress
alone controls the [NRAB’s] jurisdiction.” 558 U.S. at 71.
The Court explained that in RLA section 3 the Congress
“vested in the [NRAB] jurisdiction to adjudicate grievances of
railroad employees that remain unsettled after pursuit of
internal procedures.” Id.; see also id. at 82 (“The [NRAB’s]

Page 16 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

17
jurisdiction extends to all disputes between carriers and their
employees growing out of grievances or out of the
interpretation or application of agreements concerning rates of
pay, rules, or working conditions . . . . ” (ellipsis in original;
quotation marks omitted)). Given that section 204 expressly
grants the adjustment boards jurisdiction co-extensive with
the NRAB’s, we can but conclude that the provision is
jurisdictional regarding its adjustment board arbitration
requirement. Cf. Chevron Mining, 684 F.3d at 1329 (finding
National Labor Relation Act section 10(e)’s exhaustion
requirement jurisdictional because its “text is virtually
identical to section 313 of the Federal Power Act, which we
have held is a model of the ‘clear and unequivocal statement’
required to make exhaustion a jurisdictional prerequisite”
(quoting EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 962–63
(D.C. Cir. 1999)). Moreover, the Supreme Court’s “historical
treatment” of RLA § 3 as conferring “exclusive” jurisdiction
over collective bargaining agreement disputes further supports
our conclusion that jurisdiction lies with the adjustment board.
See Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S.
299, 304 (1989); Locomotive Eng’rs v. Louisville & Nashville
R.R. Co., 373 U.S. 33, 38 (1963); Penn. R.R. v. Day, 360 U.S.
548, 552 (1959); Slocum v. Del., Lackawanna & W. R.R. Co.,
339 U.S. 239, 244 (1950).
In urging that section 204’s arbitration requirement is not
jurisdictional, Oakey relies heavily on the Sixth Circuit’s
opinion in Emswiler v. CSX Transportation, Inc., 691 F.3d
782, 788 (6th Cir. 2012), the only circuit decision to hold that
section 204’s arbitration requirement is not jurisdictional. We
respectfully decline to join our sister circuit in its singular
perspective.
In Emswiler, the Sixth Circuit based its holding on three
premises.
First, it observed that collective bargaining
agreement disputes “raise a question ‘arising under’ federal

Page 17 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

18
law” and therefore should be subject to the district court’s
federal question jurisdiction under 28 U.S.C. § 1331.” Id. at
789. But the “federal law” in question here is RLA section
204, which expressly and unequivocally consigns
interpretation/application disputes to arbitration before the
appropriate adjustment board—with no mention of federal
court jurisdiction. Second, the Sixth Circuit asserts that the
failure to arbitrate affects the plaintiff’s “ability to prove the
defendant bound by the federal law asserted as the predicate
for relief—a merits-related determination.” Id. (quoting
Arbaugh, 546 U.S. at 511 (quotation marks omitted)). The
selection of the proper statutory forum, however—unlike the
15-employee threshold Arbaugh described—is not a “meritsrelated determination.” Finally, the Sixth Circuit reasoned
that “[t]he fact that courts have recognized exceptions to the
RLA arbitral requirement supports the conclusion that the
requirement is a nonjurisdictional restriction.” Id. at 790. In
particular, the court relied on an exception if “pursuing
arbitral mechanisms would be futile due to collusion between
the union and employer.” Id. (citing Glover v. St. Louis-S.F.
Ry. Co., 393 U.S. 324, 331 (1969)). In Glover, however, the
Supreme Court explained that the RLA’s arbitration
requirement did not confer jurisdiction over the dispute there
because “the suit was one brought by the employees against
their own union, claiming breach of the duty of fair
representation,” while RLA § 3 First (i) (like section 204)
“applies only to ‘disputes between an employee or group of
employees and a carrier or carriers.’ ” 393 U.S. at 328
(quoting Conley v. Gibson, 355 U.S. 41, 44 (1957) (quoting
45 U.S.C. § 153 First (i))). Moreover, the Court in Glover
expressly affirmed that it had previously “held that the
Railroad Adjustment Board has exclusive jurisdiction, under
[RLA § 3 First (i)] . . . to interpret the meaning of the terms
of a collective bargaining agreement.” Id. (footnote omitted;
emphasis added). As we have already noted, the statutory

Page 18 of 19

USCA Case #12-5115

Document #1447474

Filed: 07/19/2013

19
language—to which Arbaugh unequivocally directs us for our
answer—“clearly states” the adjustment board has
jurisdiction. The Sixth Circuit strayed in directing its focus
elsewhere.
For the foregoing reasons, we affirm the district court’s
judgment of dismissal for lack of subject matter jurisdiction.
So ordered.

Page 19 of 19