Oakey v. US Airways Pilots Disability Income Plan

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

2

U.S.C. §§ 1001 et seq., seeking benefits from a collectively-

bargained 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,

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

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.

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

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.”

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

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.

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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

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.

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

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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.”).

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

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 non-

jurisdictional 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 15-

employee 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

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

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]

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

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 “merits-

related 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

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.