Petition for Writ of Certiorari — Nancy Avina, Petitioner v. Union Pacific Railroad

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------NANCY AVINA,

Petitioner,

v.

UNION PACIFIC RAILROAD,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------ERIC SCHNAPPER

Counsel of Record

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

schnapp@uw.edu

DENNIS E. EGAN

COOPER S. MACH

THE POPHAM LAW FIRM

712 Broadway, Suite 100

Kansas City, MO 64105

(816) 221-2288

MARTIN M. MEYERS

THE MEYERS LAW FIRM, LC

4435 Main St., Suite 503

Kansas City, MO 64111

(816) 444-8500

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED*

Does the Railway Labor Act preempt, preclude

or otherwise limit, and if so when and in what way,

claims under anti-discrimination statutes, such as the

Age Discrimination in Employment Act or 42 U.S.C.

§ 1981?*

* A similar question is presented in Polk v. Amtrak National

Railroad Passenger Corporation, No. 23-249.

ii

PARTIES

The petitioner is Nancy Avina. The respondent is

the Union Pacific Railroad.

RELATED PROCEEDINGS

Avina v. Union Pacific Railroad, No. 4:19-cv-00480-RK,

United States District Court for the Western District

of Missouri, judgment entered June 15, 2022.

Avina v. Union Pacific Railroad, No. 22-2376, United

States Court of Appeals for the Eighth Circuit, judgment entered July 3, 2023.

iii

TABLE OF CONTENTS

Page

Question Presented .............................................

i

Parties ..................................................................

ii

Related Proceedings ............................................

ii

Opinions Below ....................................................

1

Jurisdiction ..........................................................

1

Statutes Involved .................................................

1

Introduction .........................................................

2

Statement of the Case .........................................

4

Legal Background ............................................

4

Proceedings Below ............................................

9

Reasons for Granting the Writ ............................ 18

I.

There Is A Circuit Conflict Regarding

Whether, and When, The RLA Preempts Or

Precludes Discrimination Claims ............... 18

A. Three Circuits Hold That The RLA

Does Not Preempt Or Preclude Discrimination Claims .............................. 20

B. Two Circuits Apply The ConclusiveResolution Standard To Preempt Or

Preclude Discrimination Claims ......... 22

C. Four Circuits Apply The CBA-Interpretation Standard To Preempt Or

Preclude Discrimination Claims ......... 24

D. The Conflict Is Widely Recognized ...... 29

iv

TABLE OF CONTENTS—Continued

Page

II.

The Eighth Circuit Decision Is Contrary

To The Previously Expressed Views of

The Government ........................................ 33

III.

The Circuit Conflict Presents Important

Problems Which Only This Court Can Resolve ........................................................... 35

Conclusion............................................................ 38

APPENDIX

Opinion of the United States Court of Appeals,

July 3, 2023 .............................................................1a

Order of the United States District Court for the

Western District of Missouri, July 9, 2021 ...........12a

Trial Transcript, February 9, 2022 ..........................38a

Order of the United States District Court for the

Western District of Missouri, May 11, 2022 .........47a

Statutes Involved......................................................85a

v

TABLE OF AUTHORITIES

Page

CASES

Adames v. Executive Airlines, Inc., 258 F.3d 7

(1st Cir. 2001) ..........................................................27

Adams v. American Airlines, 202 F.3d 281, 2000

WL 14399 (10th Cir. Jan. 10, 2000) ........................30

Adams v. American Airlines, Inc., 2000 WL

14399 (10th Cir. Jan. 10, 2000) ......................... 22, 31

Adams v. N.J. Transit Rail Operations, 2000 WL

224107 (S.D.N.Y. Feb. 28, 2000) ........................ 21, 31

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985) .........................................................................8

Andrews v. Louisville & N.R. Co., 406 U.S. 320

(1972) ................................................................6-8, 33

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) ...... 32, 37

Atchison, Topeka and Santa Fe Ry. Co. v. Buell,

480 U.S. 557 (1987) ............................... 6, 7, 9, 13, 34

Barrentine v. Arkansas-Best Freight System,

Inc., 450 U.S. 728 (1981) ..................................... 7, 34

Bates v. Long Island Railroad Co., 997 F.2d 1028

(2d Cir. 1993) ..................................................... 20, 21

Beckington v. American Airlines, Inc., 926 F.3d

595 (9th Cir. 2019) ...................................................32

Benson v. Northwest Airlines, Inc., 62 F.3d 1108

(8th Cir. 1995)..........................................................27

Brotherhood Ry. Carmen v. Missouri Pacific R.R.

Co. 944 F.2d 1422 (8th Cir. 1991) ...........................18

vi

TABLE OF AUTHORITIES—Continued

Page

Brown v. Illinois Central Railroad Co., 254 F.3d

654 (7th Cir. 2001), cert. denied, 534 U.S. 1041

(2001) ..................................................... 22, 23, 34, 35

Bueford v. Resolution Trust Corp., 991 F.2d 481

(8th Cir. 1993).............................................. 13, 15, 17

Carlson v. CSX Transportation, Inc., 758 F.3d

819 (7th Cir. 2014)....................................... 22, 23, 33

Carmona v. Southwest Airlines, Co., 536 F.3d

344 (5th Cir. 2008) ...................................................24

Consolidated Rail Corporation (Conrail) v. Railway Labor Executives’ Ass’n, 491 U.S. 299

(1989) ..................................................... 4, 6, 7, 14, 23

Crayton v. Long Island R.R., 2006 WL 38333114

(E.D.N.Y. Dec. 29, 2006) ..........................................31

Downey v. American Airlines, Inc., 1992 WL

333969 (D.Mass. Nov. 2, 1992) ................................26

Emswiler v. CSX Transp., Inc., 691 F.3d 782 (6th

Cir. 2012) ..................................................... 25, 29, 32

Giles v. National Railroad Passenger Corp., 59

F.4th 696 (4th Cir. 2023) .........................................33

Goss v. Long Island R. Co., 1998 WL 538026 (2d

Cir. March 16, 1998) ................................................20

Hamilton v. National Passenger Railroad Corp.,

2020 WL 6781234 (D.D.C. Nov. 18, 2020) ...............36

Hastings v. Wilson, 516 F.3d 1055 (8th Cir.

2008) ........................................................................29

vii

TABLE OF AUTHORITIES—Continued

Page

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

(1994) ........................3-5, 7-9, 13-23, 25, 27-30, 33-36

Klotzbach-Piper v. National Railroad Passenger Corp., 2021 WL 4033071 (D.D.C. Sept. 3,

2021) ........................................................................36

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988) ............................................................ 8, 26

Locke v. U.S. Airways, Inc., 2013 WL 5441725 ...........33

MOAC Mall Holdings LLC v. Transform Holdco

LLC, 598 U.S. 288 (2023) ........................................37

Malobabich v. Norfolk Southern Corp., 2011 WL

1791306 (W.D.Pa. May 10, 2011) ............................30

McAlester v. United Air Lines, Inc., 851 F.2d 1249

(10th Cir. 1988)........................................................22

McElveen v. CSX Transp., Inc., 1996 WL 481105

(D.S.C. Aug. 21, 1996) ..............................................31

Middleton v. CSX Corp., 694 F.Supp. 941

(S.D.Ga. 1988)..........................................................30

Missouri Pacific R. Co. v. Norwood, 283 U.S. 249

(1931) ................................................................. 5, 7, 9

Nuzzo v. Northwest Airlines, Inc., 887 F.Supp. 28

(D.Mass. 1995) .........................................................26

Oakey v. U.S. Airways Pilots Disability Income

Plan, 723 F.3d 227 (D.C. Cir. 2013) ................... 29, 32

O’Brien v. Consolidated Rail Corp., 972 F.2d 1

(1st Cir. 1992) ..........................................................26

viii

TABLE OF AUTHORITIES—Continued

Page

Pittari v. American Eagle Airlines, Inc. 468 F.3d

1056 (8th Cir. 2006) .................................................27

Pittsburgh & Lake Erie Railroad Co. v. Railway

Labor Executives’ Ass’n, 491 U.S. 490 (1989) ... 6, 7, 8

Polk v. Amtrak National R.R. Passenger Corp.,

66 F.4th 500 (4th Cir. 2023) ....................................25

Prokopiou v. The Long Island Railroad Co., 2007

WL 1098696 (S.D.N.Y. April 9, 2007)................ 20, 30

Ratfield v. Delta Air Lines, Inc., 2023 WL

5178593 (D.Minn. Aug. 11, 2023).......... 27, 29, 30, 32

Reed v. Elsevier, Inc. v. Muchnik, 559 U.S. 154

(2010) .......................................................................37

Richardson v. BNSF Ry. Co., 2 F.4th 1063 (8th

Cir. 2021) ......................................... 13, 17, 27, 29, 32

Roache v. Long Island Railroad, 487 F.Supp.3d

154 (E.D.N.Y. 2020) ........................................... 30, 31

Said v. National Railroad Passenger Corp., 390

F.Supp.3d 46 (D.D.C. 2019) .....................................36

Santos-Zacaria v. Garland, 598 U.S. 411 (2023) .......37

Saridakis v. United Airlines, 166 F.3d 1272 (9th

Cir. 1999) .................................................................21

Stanley v. ExpressJet Airlines, Inc., 808 Fed.Appx.

351 (6th Cir. 2020) ............................................. 25, 26

Sturge v. Northwest Airlines, 658 F.3d 832 (8th

Cir. 2011) .................................................................27

Taggart v. Trans World Airlines, Inc., 40 F.3d 264

(8th Cir. 1994)..........................................................27

ix

TABLE OF AUTHORITIES—Continued

Page

Tice v. American Airlines, Inc., 288 F.3d 313 (7th

Cir. 2002) .................................................................23

Urena v. American Airlines, Inc., 152 Fed.Appx.

63 (2d Cir. 2005) ......................................................20

Van Slyck v. GoJet Airlines, LLC, 323 F.R.D. 266

(N.D. Ill. 2018) .........................................................24

Wilkins v. United States, 598 U.S. 152 (2023) ............37

STATUTES

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1331 ............................................................1

29 U.S.C. § 185 ..............................................................8

29 U.S.C. § 623 ............................................................10

29 U.S.C. § 794 ............................................................20

42 U.S.C. § 1981 .............................................. 10, 22, 31

45 U.S.C. § 151 ..............................................................4

45 U.S.C. § 151a ............................................................4

45 U.S.C. § 184 ..............................................................4

Bankruptcy Act ...........................................................37

Federal Employers Liability Act ..................................6

Immigration and Naturalization Act .........................37

Quiet Title Act ............................................................37

Railway Labor Act ........................................ 2, 4, 12, 31

1

Petitioner Nancy Avina respectfully prays that

this Court grant a writ of certiorari to review the judgment and opinion of the United States Court of Appeals entered on July 3, 2023.

---------------------------------♦---------------------------------

OPINIONS BELOW

The July 3, 2023, opinion of the court of appeals,

which is reported at 72 F.4th 839, is set out at pp.1a11a of the Appendix. The July 9, 2021, order of the district court, which is unofficially reported at 2021 WL

2903245, is set out at pp. 12a-37a of the Appendix. The

trial transcript of February 9, 2022, which is not reported, is set out in pp. 38a-46a of the Appendix. The

May 11, 2022, order of the district court, which is unofficially reported at 2022 WL 2353078, is set out at

pp. 47a-84a of the Appendix.

---------------------------------♦---------------------------------

JURISDICTION

The decision of the court of appeals was entered

on July 3, 2023. This Court has jurisdiction pursuant

to 28 U.S.C. § 1254(1). The district court had jurisdiction under 28 U.S.C. § 1331.

---------------------------------♦---------------------------------

STATUTES INVOLVED

The statutes involved are set out in the Appendix.

---------------------------------♦---------------------------------

2

INTRODUCTION

The Railway Labor Act (RLA) provides that certain claims, commonly referred to as “minor disputes,”

can only be adjudicated by a Board established by the

Act. The Eighth Circuit decision in this case deepens

and further complicates an already well-established

circuit conflict regarding whether, and if so when and

in what way, the RLA preempts or precludes claims under anti-discrimination statutes.1

Three circuits hold that discrimination claims are

not preempted or precluded by the RLA because the

rights asserted by such claims are based on independent statutes, and are not created by a collective bargaining agreement (CBA). Two circuits hold that such

claims are preempted or precluded when the outcome

of the discrimination claim would be conclusively determined by the interpretation of a CBA. Four circuits

(including in this instance the Eighth) hold that discrimination claims are preempted or precluded if the

resolution of those claims would involve the interpretation of a CBA.

The circuits which hold that discrimination claims

can be preempted or precluded by the RLA are in disagreement about what that limitation should be. The

First Circuit holds that preemption or preclusion

extinguishes the underlying claim. The Fourth Circuit holds that a CBA-interpretation-related claim

1

The lower courts often use the term “preempt” or “preclude,” depending on whether the claim brought by the plaintiff

arises under state or federal law.

3

survives, but must be litigated before the Board. The

Eighth Circuit holds that if a discrimination claim involves the interpretation of a CBA, the federal court

lacks subject matter jurisdiction over that claim. The

Seventh Circuit stays resolution of a preempted or precluded claim until the Board resolves the CBA interpretation issue. In the Sixth Circuit, resolution of such

an interpretation by the Board is an exhaustion requirement.

These interrelated conflicts derive to a significant

degree from this Court’s own RLA decisions. Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246 (1994), and the decisions which preceded it, set out three different standards. Although those differences did not matter in the

cases previously before the Court, they are of great importance in other cases, particularly cases asserting

claims under federal and state anti-discrimination

statutes. The United States expressed the view in Hawaiian Airlines that the RLA does not preclude the assertion of rights created by an independent statute.

The courts of appeals also differ as to whether

preemption and preclusion are only claim-processing

standards, or whether they remove a claim from the

subject matter jurisdiction of the court. The Eighth

and District of Columbia Circuits (in an opinion joined

by then Judge Kavanaugh) hold this rule is jurisdictional. The Sixth and Ninth Circuits hold that it is not.

Whether the rule is jurisdictional determines whether

it can be waived by inaction or delay, an important

question in cases in which (as here) the objection is not

raised until trial.

4

In most if not all cases in which the lower courts

rule that the RLA bars judicial resolution of a discrimination claim, that determination effectively nullifies

the right against discrimination. Hawaiian Airlines

holds that the RLA does not authorize the Board to resolve claims asserting statutory rights, including civil

rights claims.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Legal Background

The Railway Labor Act establishes mechanisms

for resolving certain disputes at unionized rail carriers. Disputes related to the formation of collective bargaining agreements, or efforts to secure them, are

referred to as “major disputes.” Disputes that “gro[w]

out of grievances or out of the interpretation or application of [collective bargaining] agreements” are

known as “minor disputes.” 45 U.S.C. § 151a. “[M]ajor

disputes seek to create contractual rights, minor disputes to enforce them.” Consolidated Rail Corporation (Conrail) v. Railway Labor Executives’ Ass’n, 491

U.S. 299, 302 (1989). If a minor dispute cannot be resolved informally, the RLA creates a National Railroad Adjustment Board (NRAB) to adjudicate the

dispute. 45 U.S.C. §§ 151 first (a), 151 first (i).2 Similar

2

Airlines are subject to a similar regime, except minor disputes are resolved by adjustment boards organized at each carrier. 45 U.S.C. § 184.

5

carrier-specific adjustment boards may be created by

employers and unions under the RLA.

If a claim constitutes a minor dispute under the

RLA, it can only be adjudicated by the NRAB, or by a

carrier-specific board agreed to by a carrier and the relevant union. For simplicity we (like some lower courts)

refer to either simply as “the Board.” A federal or state

court may not adjudicate a minor dispute. If a lawsuit

involves multiple claims, this limitation is applied separately to each claim. If the same facts give rise to several claims, only one of which is a minor dispute, a

court can resolve the remaining claims. The jurisdiction of the Board, on the other hand, is defined and limited by statute to minor claims.

Because of the numerous federal and state laws,

and state common law claims, related to employment

relations, there has been and continues to be a large

volume of litigation in the lower courts regarding

which claims are and are not minor disputes. This

Court has addressed the definition of a minor dispute

in a series of decisions. The Court summarized those

decisions, and set out standards derived from them, in

Hawaiian Airlines, Inc. v. Norris.

Decisions beginning in 1931 established that

claims to enforce rights created by statute, rather

than to enforce rights arising under a CBA, are not

limited by a CBA. In Missouri Pacific R. Co. v. Norwood, 283 U.S. 249, 258 (1931), the Court rejected out

of hand an argument that the RLA limited the ability

of a state to protect workers by regulating the number

6

of employees required to operate certain equipment.

Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480

U.S. 557 (1987), held that the RLA does not limit negligence claims under the Federal Employers Liability

Act (FELA), because the FELA “provides railroad

workers with substantive protection against negligent conduct that is independent of the employer’s obligations under its collective-bargaining agreement....”

480 U.S. at 565. The FELA, the Court explained, was

not devised to provide remedies for CBA violations,

but is an independent “statutory basis for the award

of damages to employees injured through an employer’s or co-worker’s negligence.” Id.

The 1989 decision in Consolidated Rail Corp. (Conrail) v. Railway Labor Executives’ Ass’n, 491 U.S. 299

(1989), put the standard somewhat differently, focusing on the degree to which a claim would be affected by

the interpretation of a CBA. “[T]he line drawn...looks

to whether a claim has been made that the terms of an

existing agreement either establish or refute the presence of a right to take the disputed action. The distinguishing feature of such a case is that the dispute may

be conclusively resolved by interpreting the existing

agreement.” 491 U.S. at 305.

Finally, in 1989 a footnote in Pittsburgh & Lake

Erie Railroad Co. v. Railway Labor Executives’ Ass’n,

491 U.S. 490 (1989), suggested a third standard. “Minor disputes are those involving the interpretation or

application of existing contracts.” 491 U.S. at 496 n.4.

An earlier decision in Andrews v. Louisville & N.R.

Co., 406 U.S. 320 (1972), had commented about the

7

particular claim in that case, which asserted that the

plaintiff had been fired in violation of a CBA, “[t]he

existence and extent of such an obligation in a case

such as this will depend on the interpretation of the

collective-bargaining agreement.” 406 U.S. at 324.

In 1994 Hawaiian Airlines quoted and described

three standards. First, it set out the Norwood independent-right standard. “[U]nder Norwood, substantive protections provided by state law, independent of

whatever labor agreement might govern, are not preempted under the RLA.” 512 U.S. at 257. “[W]e have

held that the RLA’s mechanism for resolving minor

disputes does not pre-empt causes of action to enforce

rights that are independent of the CBA.” 512 U.S. at

256. “[N]otwithstanding the strong policies encouraging arbitration, ‘different considerations apply where

the employee’s claim is based on rights arising out of a

statute designed to provide minimum substantive

guarantees to individual workers.’ ” Buell, 480 U.S. at

565 (quoting Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 737 (1981)). Second, Hawaiian

Airlines quoted the conclusive-resolution standard

from Conrail. “The distinguishing feature of [a minor

dispute] is that the dispute may be conclusively resolved by interpreting the existing [CBA].” 512 U.S. at

256 (quoting Conrail, 491 U.S. at 305); see 512 U.S. at

263 (quoting Conrail conclusive resolution standard).

Third, Hawaiian Airlines set out a CBA-interpretation

standard, relying on Railway Labor Executives and

Andrews. Those decisions, the Court stated, had “defined

minor disputes as those involving the interpretation or

8

application of existing labor agreements.” 512 U.S. at

256; see id., at 256 (“[m]inor disputes are those involving the interpretation or application of existing contracts”) (quoting Railway Labor Executives Ass’n, 491

U.S. at 501 n.4 (1989)), 263 (“a state-law claim is preempted where it ‘depend[s] on the interpretation’ of the

CBA”) (quoting Andrews, 406 U.S. at 324 (1972)).3

Further complicating the situation, Hawaiian Airlines held that the standard for determining what is a

minor dispute under the RLA would (at least usually)

be the same as the standard for determining preemption under section 301 of the Labor Management Relations Act. 29 U.S.C. § 185. But the Court referred to two

different standards under section 301. The Court described Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988), as holding “that where the resolution of a

state-law claim depends on an interpretation of the

CBA, the claim is pre-empted.” 512 U.S. at 261 (quoting

486 U.S. at 405-06). That resembles the CBA-interpretation standard suggested based on Railway Labor

Executives and Andrews. But Hawaiian Airlines also

described Lingle as holding that “the existence of a potential CBA-based remedy did not deprive an employee

of independent remedies available under state law.”

512 U.S. at 261. And Hawaiian Airlines cited the holding in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985), “that...state-law rights, those that existed independent of the contract would not be...pre-empted.”

3

This passage in Andrews actually referred only to a claim

asserting a violation of a CBA, not to state-law claims generally.

See 406 U.S. at 324.

9

512 U.S. at 260. Those passages are similar to the independent-right standard in Norwood and Buell.

Because the various standards predating and

summarized in Hawaiian Airlines are different, in the

years since that decision litigants have argued over

which standard should be applied, and each side has

been able to cite or quote a passage in Hawaiian Airlines (or an earlier decision of this Court) favorable to

its position. Lower courts, in turn, have had to choose

among these standards, or to fashion some rule or procedure for reconciling the differences. That is what has

occurred in the Eighth Circuit.

Proceedings Below

District Court

Avina, was a long-time employee of the Union Pacific Railroad. She was a member of the Communications Transportation Union, which at all relevant

times had a collective bargaining agreement (CBA)

with the railroad. In 2017 the company posted a bulletin announcing a vacancy in the position of 1E Material Supervisor. That was a position covered by the

CBA, but vacancies were filled at the discretion of the

company, not based on seniority. The bulletin directed

interested employees to “EMAIL OR FAX RESUME”

to a designated company official. PX 91. Avina faxed in

her resume, and a company official sent Avina an email

thanking her “for [her] interest in the Supervisor 1E

position.” PX 129. But Avina did not get the promotion.

In 2018 another bulletin announced a vacancy for that

10

position. That second bulletin as well directed interested employees to “EMAIL OR FAX RESUME’ to a

designated company official. PX 97. Avina did so, but

again did not get the promotion.

Plaintiff filed this action in federal district court,

alleging a number of discrimination claims. As relevant here, she asserted that in both 2017 and 2018 she

had been denied promotion to the 1E Material Supervisor position because of her age and race.4 29 U.S.C.

§ 623; 42 U.S.C. § 1981. After a period of discovery, the

defendant moved for summary judgment.

The defendant asserted that Avina had not received either promotion because she had failed to

properly apply for them. The defendant did not dispute

Avina’s assertion that, in response to the bulletins

announcing those positions, she had faxed in her resume. But, the defendant argued, Avina did not apply

in the manner required by the company. Specifically,

the defendant claimed that the only proper manner to

apply for the type of position in question was to bid

through a company computer application known as

iTrakForce.5 The company insisted that Avina’s action

in faxing in her resume did not constitute an application.

Plaintiff denied that employees were required to

use iTrakForce to apply for the positions at issue; it

4

The district court dismissed plaintiff ’s age discrimination

claim regarding the 2017 position on grounds not relevant here.

5

Defendant’s Memorandum of Law Supporting its Motion

for Summary Judgment, 5-7, 12, 18, 19, 29, 35, 37, 39.

11

was sufficient, she argued, to fax in her resume. Plaintiff pointed to deposition testimony by Avina “that

there is a specific procedure on bidding for jobs and

that it is set out in the Union contract.”6 Plaintiff ’s

summary judgment response contained two lengthy

quotations from the CBA itself, which referred only to

application by providing the employer with a resume,

and made no mention of iTrakForce.7 The company’s

reply dismissed Avina’s testimony as “conclusory” and

“self-serving,” but did not respond to address the portions of the CBA which plaintiff had quoted and relied

on.8 The district court denied summary judgment, specifically noting that there was a factual dispute as to

the proper method for applying for the promotions at

issue. “Defendant argues Avina never applied for the

material supervisor position.... However, Avina’s testimony is competent and admissible evidence to contradict Defendant’s assertions.... A trier of fact is entitled

to believe Avina’s testimony and disbelieve the assertions of Defendant as to whether Avina applied, the

correct process to apply, and consideration of applicants.” App. 25a; see App. 29a, 35a.

The case proceeded to trial, and the parties offered conflicting evidence regarding the proper manner

6

Plaintiff ’s Response to Defendant’s Purportedly Uncontroverted Material Facts and Plaintiff ’s Statement of Material Facts

for Trial, 9.

7

Id., at 9-10.

8

Reply Supporting Defendant’s Statement of Uncontroverted

Material Facts and Response to Plaintiff ’s Statement of Facts, 18,

19, 45, 63, 69, 112, 117.

12

in which interested employees were to apply for promotion to the 1E Material Supervisor position. The

company relied on testimony by company officials regarding the manner in which workers were required to

apply. The plaintiff offered her own testimony, that of

a local union president, and the text of the CBA itself.

On the fourth day of trial, however, the company

for the first time objected to the jury—or any federal

judicial forum—deciding whether Avina had applied in

the correct manner, or deciding her discrimination

claims at all. Rather, the defendant insisted, the plaintiff ’s discrimination claims were preempted by the

RLA, because resolution of those claims would involve

interpretation of the CBA. And, it argued, disputes

about the interpretation of the CBA included disputes

about the nature of an employer’s practices and customs (such as how workers should apply for a promotion), because the union had acquiesced in those

practices as consistent with the CBA.

Because this argument was first raised in the middle of trial, the judge directed the parties to brief the

issue over the weekend. The defendant accurately

pointed out that under Eighth Circuit precedent if,

as it urged, the RLA preempted plaintiff ’s discrimination claims, the district court would lack subject

matter jurisdiction over those claims.9 Plaintiff did

not dispute that characterization of Eighth Circuit

9

Defendant’s Trial Brief Regarding Railway Labor Act Preemption, 1, 3; Defendant’s Trial Brief Regarding Railway Labor Act

Preemption, 1, 3-4.

13

precedent. Less than a year earlier the Eighth Circuit

had held that it “is settled law in this circuit that the

RLA divests courts of subject-matter jurisdiction over

claims arising out of the interpretation or application

of a collective-bargaining agreement between a carrier

and its employees.” Richardson v. BNSF Ry. Co., 2

F.4th 1063, 1070 (8th Cir. 2021). Defendant correctly

stated that “[l]lack of subject matter jurisdiction...cannot be waived. It may be raised at any time by a party

to an action....” Id., at 3 n.1 (quoting Bueford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993)). Because, in light of binding Eighth Circuit precedent, the

district court could not reject this RLA objection as

waived, plaintiff did not ask that court to do so.

The parties’ briefs advanced conflicting positions

as to the standard for determining preemption under

the RLA, each side citing or quoting this Court’s opinion. Plaintiff argued that whether a claim is preempted

turns on whether the right asserted in the claim was

created by a federal or state statute, or was created by

a CBA. “The ‘minor disputes’ that subject [a claim] to

RLA arbitration are those that involve duties and

rights created or defined by the CBA.” Plaintiff ’s Brief

on the Inapplicability of Preemption to The Facts of

this Case, 2 (citing and quoting Buell and Hawaiian

Airlines). The defendant argued that under this Court’s

decisions a claim is preempted if resolving the claim

would involve interpreting a CBA. “Minor disputes

involve ‘the meaning of an existing [CBA] in a particular fact situation.’ ” Defendant’s Trial Brief Regarding

Railway Labor Act Preemption, 3 (quoting Hawaiian

14

Airlines, 512 U.S. at 253). “A minor dispute ‘relates

either to the meaning or proper application of a particular provision [in the CBA] with reference to a specific

situation....’ ” Defendant’s Motion for Judgment As A

Matter of Law at The Close of Plaintiff ’s Evidence, 3

(quoting Conrail, 491 U.S. at 303).

The trial judge, ruling from the bench, adopted the

defendant’s interpretation of this Court’s opinions.

“When you look at the [Hawaiian Airlines] case, the

emphasis is on where the resolution of a state law

claim depends on the interpretation of the CBA, the

claim is preempted.” App. 42a. The judge concluded

that resolution of the dispute about whether Avina

had applied in the correct manner would involve interpretation of the CBA, and thus dismissed for lack

of jurisdiction her promotion claims regarding the 1E

Material Supervisor vacancies. App. 43a-44a.

The trial proceeded with regard to a remaining

claim, not relevant here, and the jury deadlocked over

that claim. Plaintiff then filed a motion asking the district judge to reconsider her earlier decision dismissing

the claims regarding the 1E Materials Supervisor position, and the parties further briefed that issue. The

district court issued a lengthy written opinion, reaffirming and further explaining her conclusion that

those claims were preempted by the RLA and that the

court did not have subject matter jurisdiction over

those claims.

The district judge was highly critical of the defendant’s action in not raising the RLA preemption issue

until the middle of trial.

15

The Court is cognizant of Plaintiff ’s visceral

frustration that Defendant “first raised the

issue of preemption on...the fourth day of an

eight-day trial[,] more than two and a half

years after Plaintiff filed her complaint and

more than a year after Defendant sought

summary judgment accompanied by suggestions that specifically point out the fact that

the 1E position is governed by a collective bargaining agreement.”

App. 77a n.14 (quoting plaintiff ’s brief ).

There is no clear reason why the jurisdictional

question resolved now was not raised earlier,

and Plaintiff ’s frustration is well taken. An

earlier resolution would have reduced the resources spent conducting extensive discovery

and an eight-day trial and may have avoided

any statute of limitations issue that may arise

following this dismissal. The Court does not

condone Defendant’s decision to raise the issue so late in the proceedings.

App. 77a. But, the court noted, “[l]ack of subject matter

jurisdiction...cannot be waived. It may be raised at

any time by a party to an action, or by the court sua

sponte.” App. 50a (quoting Bueford v. Resolution Trust

Corp., 991 F.2d 481, 485 (8th Cir. 1993)); see App. 68a

n.7 (“subject matter jurisdiction...cannot be waived”)

(quoting Bueford).

The district court reiterated its view that under

Hawaiian Airlines a claim is preempted if resolution of

the claim would involve interpretation of a CBA. “[A]

dispute is minor, and therefore preempted, if it involves

16

‘the meaning of an existing [CBA] in a particular fact

situation.’ Hawaiian Airlines, 512 U.S. at 253.” App.

53a. The court noted that the “[d]efendant urges, under

the RLA, a CBA can give rise to implied terms arising

from ‘practice, usage and custom.’ Hawaiian Airlines,

512 U.S. at 264 n.10.” App. 54a. The conflicting evidence

about whether the company required applications for

the position at issue to be submitted on iTrakForce was

such a dispute about the company’s practices. Determination of whether the “defendant require[d] submission (or could...require submission) of the application

through iTrakForce...requires interpretation of the

CBA.” App. 69a.

Court of Appeals

On appeal, the parties again disagreed about what

RLA preemption standard was established by this

Court’s opinions. Plaintiff argued that under Hawaiian Airlines the RLA does not preempt a claim seeking

to enforce a right created by statute.

The RLA’s “mechanism for resolving minor

disputes does not pre-empt causes of action to

enforce rights that are independent of the

CBA.” [Hawaiian Airlines], 512 U.S. at 256

(emphasis added). Stated differently, “ ‘minor

disputes’ subject to RLA arbitration are those

that involve duties and rights created or defined by the CBA.” Id., 512 U.S. at 258....

According to [Hawaiian Airlines], “a state-law

cause of action is not pre-empted by the RLA

17

if it involves rights and obligations that exist

independent of the CBA.” 512 U.S. at 260.

Appellant’s Brief, 23. The defendant argued, to the

contrary, that whether a claim is preempted by the

RLA turns on whether or not the claim “can be resolved without interpreting the [CBA] itself....” Brief of

Defendant-Appellee, 24 (quoting Hawaiian Airlines,

512 U.S. at 262).

The defendant correctly insisted that it was “settled law” in the Eighth Circuit that there is no subject

matter jurisdiction over an RLA-preempted claim. Id.,

at 22-23 (quoting Richardson v. BNSF Ry. Co., 2 F.4th

1063, 1067 (8th Cir. 2021)). And the defendant correctly argued that “[i]t is black letter law that the question of whether a federal court has subject matter

jurisdiction to decide a particular claim...‘...cannot be

waived.’ ” Id., at 37 (quoting Bueford, 991 F.3d at 485).

Because, in light of binding Eighth Circuit precedent,

the panel could not hold that the defendant had waived

this objection by failing to raise it in a timely fashion,

plaintiff did not ask the panel to do so.

The Eighth Circuit held, as it has in earlier opinions, that the RLA bars any claim which would involve

the interpretation of a collective bargaining agreement, a rule which the court of appeals reasoned that

this Court’s decision in Hawaiian Airlines had established. “[I]f there is any doubt about whether the dispute ‘require[s] interpreting any term of a collectivebargaining agreement,’ Hawaiian Airlines, 512 U.S. at

261 (citation omitted), dismissal is the only option....”

18

App. 5a. “ ‘[M]inor disputes[ ]’ covers ‘controversies

over the meaning of an existing collective[-]bargaining agreement in a particular fact situation.’ Hawaiian

Airlines, 512 U.S. at 253 (citation omitted).” App. 4a.

The dispute regarding whether the company in practice required that applications be made under

iTrakForce, the court held, was a dispute that had to

be resolved by the National Railroad Adjustment

Board, because the defendant not only contended that

it required applications be made in that manner, but

also asserted that this claimed practice was “an ‘implied’ term [of the CBA] that arises from ‘established

and recognized custom[s],’ even if the collective bargaining agreement makes no mention of it.” App. 8a

(quoting Brotherhood Ry. Carmen v. Missouri Pacific

R.R. Co. 944 F.2d 1422, 1429 (8th Cir. 1991)).

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

I.

THERE IS A CIRCUIT CONFLICT REGARDING WHETHER, AND WHEN, THE

RLA PREEMPTS OR PRECLUDES DISCRIMINATION CLAIMS

The divergent standards set out in Hawaiian

Airlines and earlier RLA opinions of this Court have

given rise to a complex conflict. The Second, Ninth and

Tenth Circuits hold that discrimination claims, which

by definition involve a right created by statute, are not

preempted or precluded by the RLA, citing and quoting Hawaiian Airlines and earlier decisions by this

Court. The Fifth and Seventh Circuits hold that the

19

conclusive-resolution standard, where applicable, precludes or preempts discrimination claims, citing and

quoting Hawaiian Airlines and earlier cases by this

Court. The Fourth, Sixth, Seventh and Eighth Circuits

hold that the CBA-interpretation standard can

preempt or preclude discrimination claims, also citing

and quoting for that different rule Hawaiian Airlines

and earlier opinions by this Court.

The courts of appeals that hold the RLA can

preempt or preclude discrimination claims, moreover,

are in disagreement about the consequences of holding

that the RLA applies to such a claim. The Fourth Circuit holds that the claimant must litigate the discrimination claim before the Board. The Sixth Circuit holds

that a claimant must go to the Board before he or she

can pursue a discrimination lawsuit. The Seventh Circuit holds that a plaintiff can file a discrimination lawsuit that might be conclusively resolved by the Board,

but will stay the litigation pending action by the Board.

In the First Circuit, if a discrimination claim involves

the interpretation of a CBA, the RLA extinguishes that

claim. The Eighth Circuit holds that the RLA preempts

state law claims which would involve the interpretation of a CBA, and (applying the same standard) holds

that the RLA precludes federal claims which involve

the interpretation of a CBA, and holds that both strip

federal courts of subject matter jurisdiction over such

claims.

20

A. Three Circuits Hold That The RLA

Does Not Preempt Or Preclude Discrimination Claims

The Second Circuit holds that the RLA does not

preempt or preclude claims under the Rehabilitation

Act of 1973. 29 U.S.C. § 794; Bates v. Long Island Railroad Co., 997 F.2d 1028 (2d Cir. 1993), cert. denied, 510

U.S. 992 (1993). The court of appeals expressly rejected

a CBA-interpretation standard.

[The defendant] contends that because appellants’ claims require interpretation of the applicable collective bargaining agreement, they

are “minor disputes” under the RLA.... While

it is true that a [plaintiffs’] discriminatory discharge claims may implicate those portions of

their collective bargaining agreements that

provide for physical disqualification from employment, it is not true that their exclusive

remedy for their allegedly wrongful discharges

is arbitration.

997 F.2d at 1034. Although Bates was decided prior to

Hawaiian Airlines, it remains controlling precedent in

the Second Circuit. Urena v. American Airlines, Inc.,

152 Fed.Appx. 63, 65 (2d Cir. 2005) (citing Bates to distinguish between “statutory civil rights” and “claims

grounded in the collective bargaining agreement”);

Goss v. Long Island R. Co., 1998 WL 538026, at *3 (2d

Cir. March 16, 1998) (same); Prokopiou v. The Long

Island Railroad Co., 2007 WL 1098696, at *4 (S.D.N.Y.

Apr. 9, 2007) (citing Bates as establishing that a Title

VII or other federal civil rights claim is not a minor

21

dispute); Adams v. N.J. Transit Rail Operations, 2000

WL 224107, at *9 (S.D.N.Y. Feb. 28, 2000) (citing Bates

as holding that federal statutory claims such as those

under Title VII are not minor disputes).

Saridakis v. United Airlines, 166 F.3d 1272 (9th

Cir. 1999), is one of several Ninth Circuit decisions

holding that the RLA does not preclude or preempt discrimination claims arising under federal or state law.

Saridakis quoted the holding in Hawaiian Airlines

that a minor dispute is one that “does not involve

rights that exist independently of the [collective bargaining agreement].” 166 F.3d at 1276 (quoting 512

U.S. at 265). “As with Title VII rights, the rights emanating from the ADA exist independently of any employment rights granted by a CBA.... [A] dispute under

the ADA is not minor....” 166 F.3d at 1277. Saridakis

rejected the employer’s argument that ADA claims are

transformed into minor disputes if an employer asserts

a defense related to the CBA, again quoting Hawaiian

Airlines. 166 F.3d at 1277. “Although United may be

able to introduce and rely upon the CBA...as a part of

its defense, under the Supreme Court’s recent ruling

that would not be enough to render the dispute minor

and therefore subject to the RLA’s dispute resolution

mechanism.” Id. Saridakis pointed out that decisions

in other circuits had “found ADA rights independent of

the RLA and therefore beyond the scope of what is

deemed a minor dispute.” 166 F.3d at 1277 n.6.

The Tenth Circuit holds that the RLA does not

preempt or preclude discrimination claims, applying

an independent-rights standard. “Under the RLA,

22

while the courts have no jurisdiction to hear airline

employee claims based solely upon the contract, the

courts do have jurisdiction over claims based upon federal statutes.” McAlester v. United Air Lines, Inc., 851

F.2d 1249, 1254 (10th Cir. 1988). “The RLA does not

preclude the court’s subject matter jurisdiction over an

independent cause of action under...42 U.S.C. § 1981.”

851 F.2d at 1255. The Tenth Circuit reiterated that

rule after Hawaiian Airlines. Adams v. American Airlines, Inc., 2000 WL 14399, at *7 (10th Cir. Jan. 10,

2000) (quoting Hawaiian Airlines) (Title VII claim not

barred).

B. Two Circuits Apply The ConclusiveResolution Standard to Preempt Or

Preclude Discrimination Claims

The Seventh Circuit applies a conclusive-resolution standard. Carlson v. CSX Transportation, Inc., 758

F.3d 819, 832-34 (7th Cir. 2014) (citing Hawaiian Airlines and Conrail); Brown v. Illinois Central Railroad

Co., 254 F.3d 654, 658 (7th Cir. 2001) (citing Hawaiian

Airlines and Conrail; holding ADA claim precluded),

cert. denied, 534 U.S. 1041 (2001). Carlson makes clear

that this standard is not satisfied merely by a showing

that reliance on or interpretation of a CBA may occur

in the course of the resolution of a claim; there must be

showing that the CBA would necessarily be conclusive.

The defendant in Carlson asserted (like the defendant

in this case) that it would argue that it had taken the

actions in question “pursuant to a collective bargaining

agreement rather than for discriminatory...reasons.”

23

758 F.3d at 832. The Seventh Circuit held that was insufficient to show that the CBA would be conclusive.

758 F.3d at 833 (quoting Hawaiian Airlines, 512 U.S.

at 265-55). Brown similarly stressed that the need to

interpret that CBA would not be a bar if the correct

interpretation was only “relevant but not dispositive....” 254 F.3d at 668. On the other hand, Brown also

rejected the contention—advanced in that case by the

EEOC—that RLA does not affect claims brought to enforce “federal statutes which create rights for individual workers are not precluded by the RLA, simply

because they seek to enforce rights which exist independently of the CBA.” 254 F.3d at 667.

Brown held that the RLA precludes or preempts a

claim if an interpretation of the CBA could conclusively refute the claim at issue, the argument advanced

by the defendant in that case.10 However, unlike any

other circuit, the Seventh Circuit holds that if a complaint seeks to enforce a federal or state law right

which might be conclusively resolved by an interpretation of the CBA, the federal court is not to dismiss the

complaint, but rather should stay proceedings until

the Board has resolved the interpretation issue. Tice v.

American Airlines, Inc., 288 F.3d 313, 317-18 (7th Cir.

2002) (staying proceedings in a case asserting rights

under the Age Discrimination in Employment Act);

10

This is broader than the standard in Conrail, which is limited to a situation in which the interpretation of the CBA at issue

will conclusively resolve the case by either establishing, or refuting, the plaintiff ’s claim. 491 U.S. at 305.

24

Van Slyck v. GoJet Airlines, LLC, 323 F.R.D. 266, 277

(N.D. Ill. 2018) (staying proceedings regarding claims

under the Americans with Disabilities Act and the

Family and Medical Leave Act).

The Fifth Circuit also applies a version of the

conclusive-resolution standard. Quoting Conrail, that

circuit holds that “[t]he ‘distinguishing feature’ of a

minor dispute ‘is that the dispute may be conclusively

resolved by interpreting the [collective bargaining]

agreement.’ ” Carmona v. Southwest Airlines, Co., 536

F.3d 344, 348 (5th Cir. 2008). The Fifth Circuit rejected

the defendant’s suggestion that the RLA precluded a

plaintiff ’s claims whenever interpretation of a CBA

would be involved. 536 F.3d at 349-50. The court of appeals recognized that other circuits had held that ADA

and Title VII claims create independent statutory

rights and thus are not minor disputes, but the Circuit

stopped short of adopting that rule. 536 F.3d at 350-51,

And in the Fifth Circuit, unlike in the Seventh, a discrimination claim that could be conclusively resolved

through arbitration is dismissed, not stayed.

C. Four Circuits Apply The CBA-Interpretation Standard To Preempt Or Preclude Discrimination Claims

The Sixth Circuit applies both the independentright and CBA-interpretation standards. A claim is a

“minor dispute” if it either seeks to enforce a right

created by the collective bargaining agreement, or if

resolution of the claim (even though asserting a right

25

created by federal or state law) would involve interpretation of a CBA. The court of appeals attributes

the CBA-interpretation part of its standard to this

Court’s decision in Hawaiian Airlines. Emswiler v. CSX

Transportation, Inc., 691 F.3d 782, 792 (6th Cir. 2012)

(quoting Hawaiian Airlines).11 But under Emswiler, a

federal or state law discrimination claim is not completely extinguished if it involves the interpretation of

a CBA. Rather, the Sixth Circuit holds, the RLA only

imposes an exhaustion requirement; a plaintiff asserting such a claim must first seek relief under the RLA

arbitral process before going to court. “If [the plaintiff ’s disability discrimination claim is preempted by

the RLA, then he is required to pursue the RLA-mandated arbitral process before bringing his claim to

court, and his failure to do so precludes consideration

of the merits.” 691 F.3d at 792 (emphasis added). The

Sixth Circuit holds that the limitation imposed by the

RLA is not jurisdictional. 691 F.3d at 790.

The Fourth Circuit utilizes a CBA-interpretation

standard, insisting that Hawaiian Airlines mandated

that test. Polk v. Amtrak National R.R. Passenger

Corp., 66 F.4th 500, 507 (4th Cir. 2023). That court of

appeals also insists that the independent-right standard is not the proper test. “The RLA’s rationale has

11

Applying that standard, the Sixth Circuit in Emswiller

held that a state law discrimination claim was a minor dispute,

because it would involve interpretation of a CBA. 691 F.3d at 79293; see Stanley v. ExpressJet Airlines, Inc., 808 Fed.Appx. 351,

356 (6th Cir. 2020), cert. denied, 141 S.Ct. 1058 (2021) (claims under Title VII and state anti-discrimination statutes deemed “minor disputes”).

26

little to do with whether a minor dispute arises from a

contractual claim or some other cause of action under

state or federal law.” Id. The Fourth Circuit maintains

that applying an independent-right standard to preempt or preclude statutes such as anti-discrimination

laws would nullify the RLA. Id. But unlike the other

circuits rejecting the independent-right standard, the

Fourth Circuit holds that the consequence of applying

the RLA to a discrimination claim is that the claim

must be brought before the National Railroad Adjustment Board or another board established under the

RLA. Id.

In O’Brien v. Consolidated Rail Corp., 972 F.2d 1,

3 (1st Cir. 1992), the First Circuit held that the RLA

preempts state anti-discrimination law in any case

which would involve interpretation of a collective bargaining agreement. “[Plaintiff ’s anti-discrimination]

claim is barred because the resolution of his claim

would require interpretation of the collective bargaining agreement.” 972 F.2d at 5; see 972 F.3d at 5 (citing

CBA-interpretation standard in Lingle, 486 U.S. at 409

n.8). The court of appeals rejected the independentright standard. “[T]he mere fact that [a plaintiff ’s]

cause of action under [state law] is ‘independent’ of the

RLA says nothing about whether such action is

preempted by the RLA.” 972 F.3d at 3.12 More recently

the First Circuit held that “[w]hile Lingle articulated

12

See Nuzzo v. Northwest Airlines, Inc., 887 F.Supp. 28, 32

(D.Mass. 1995) (state anti-discrimination law claim preempted by

RLA, citing O’Brien); Downey v. American Airlines, Inc., 1992 WL

333969, at *3-*5 (D.Mass. Nov. 2, 1992) (same).

27

the CBA interpretation test for preemption pursuant

to the Labor Management Relations Act,...Hawaiian

Airlines adopted the test for application to RLA cases

raising the same issue. 512 U.S. at 263.” In the First

Circuit “[s]tate law claims requiring...actual interpretation [are] extinguished.” Adames v. Executive Airlines, Inc., 258 F.3d 7, 12 (1st Cir. 2001).

The Eighth Circuit standard, and its reading of

Hawaiian Airlines, have changed completely over the

years since Hawaiian Airlines was decided. In decisions between 1994 and 2006, the Eighth Circuit applied the independent-right standard. Taggart v. Trans

World Airlines, Inc., 40 F.3d 264, 273-74 (8th Cir. 1994)

(quoting Hawaiian Airlines); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1115 (8th Cir. 1995); Pittari v.

American Eagle Airlines, Inc. 468 F.3d 1056, 1060-61

(8th Cir. 2006). But since 2010, the Eighth Circuit has

applied the CBA interpretation standard. Sturge v.

Northwest Airlines, 658 F.3d 832, 837 (8th Cir. 2011)

(citing Hawaiian Airlines); Richardson v. BNSF Railway Co., 2 F.4th 1063, 1067 (8th Cir. 2021); App. 4a-5a.

In the Eighth Circuit the RLA bar, when applicable,

preempts state law claims and precludes federal law

claims.

This change over time of the Eighth Circuit standard is described in Ratfield v. Delta Air Lines, Inc., 2023

WL 5178593, at *10-*11 (D. Minn. Aug. 11, 2023). Ratfield noted that “initially [the Eighth Circuit] hewed

to” the holding in Hawaiian Airlines that claims were

not barred by the RLA if “the ‘only source’ of the asserted rights” was state (or federal) law.” 2023 WL

28

5178593, at *9-*10 (quoting Hawaiian Airlines, 512

U.S. at 258, 388). But, the court explained, subsequent

Eighth Circuit decisions invoked different language

from Hawaiian Airlines to adopt a different legal

standard.

Courts began to emphasize certain language

from Hawaiian Airlines to find a broader

swath of claims preempted under the RLA.

Though the Supreme Court’s test rested upon

the legal character of the claim, and whether

the source of the right existed independently

of the CBA, the Court in Hawaiian Airlines

also cited with approval its precedent analyzing preemption in the context of the LaborManagement Relations Act.... It summarized

that authority, explaining that state-law claims

are only preempted under the LMRA if they

are “dependent on the interpretation of a

CBA,”...and “can be ‘conclusively resolved’ by

reference to an existing CBA[.]”.... In recent

years [decisions in the Eighth Circuit] have

seized upon that language—regarding whether

a claim is dependent upon the interpretation of

a CBA—to find claims preempted where analyzing the elements of the plaintiff ’s claim

would require interpreting any term of their

CBA.... These cases illustrate how the test for

RLA preemption has moved from one based

solely upon the legal character of the claim to

one that also considers whether any term of

the CBA might be implicated by the court’s

analysis.

29

Id., at 10 (quoting Hawaiian Airlines, 512 U.S. at 262)

(emphasis in original). Ratfield illustrates the problems that have arisen because of the divergent standards in Hawaiian Airlines.

The Eighth Circuit has repeatedly held, as it did

in this case, that the limitation in the RLA is jurisdictional. App. 4a, 5a n.2, 8a n.4; Richardson v. BNSF Ry.

Co., 2 F.4th 1063, 1067-68 (8th Cir. 2021) (“settled law

in this circuit”); Hastings v. Wilson, 516 F.3d 1055, 1058

and n.2 (8th Cir. 2008). In Richardson Judge Colloton

noted that the Eighth Circuit rule conflicts with the

Sixth Circuit rule in Emswiler. 2 F.4th at 1073-74 (concurring opinion).

The District of Columbia Circuit holds that the

RLA limitation is jurisdictional and thus not subject to

waiver, expressly rejecting the holding to the contrary

in the Sixth Circuit decision in Emswiler. Oakey v. U.S.

Airways Pilots Disability Income Plan, 723 F.3d 227,

235-38 (D.C. Cir. 2013) (opinion joined by Kavanaugh,

J.).

D. The Conflict Is Widely Recognized

“Courts are divided over whether RLA precludes a

railroad employee from prosecuting a Title VII claim in

a court. Some have found that RLA precludes an employee from litigating in a court claims brought pursuant to federal civil rights statutes, including Title

VII.... However, the majority of courts considering this

issue have held that RLA does not preclude an employee from prosecuting a Title VII or other federal

30

civil rights claim in a court, and that such a claim(s)

does not constitute a ‘minor dispute.’ ” Prokopiou v. The

Long Island Railroad Co., 2007 WL 1098696, at *3-*4

(S.D.N.Y. April 9, 2007).

“[C]ourts have long been divided on their approach

to the issue of RLA preclusion of discrimination claims,

caused in no small way, as one circuit observed, by

‘somewhat imprecise and often conflicting language

in the cases that discuss’ the issue.” Roache v. Long

Island Railroad, 487 F.Supp.3d 154, 167-68 (E.D.N.Y.

2020) (contrasting decisions in the Second and Seventh

Circuits) (quoting Adams v. American Airlines, 202

F.3d 281, 2000 WL 14399, at *7 (10th Cir. Jan. 10,

2000)).

In Ratfield v. Delta Air Lines, Inc., 2023 WL

5178593 (D.Minn. Aug. 11, 2023), the district court,

noting the divergent standards applied by the courts

of appeals, commented that “although this Court sees

merit in the approaches adopted by the Third, Fifth,

Sixth, and Seventh Circuits, the law of the Eighth Circuit Court of Appeals is binding here.” 2023 WL

5178953, at *15. “There has been some disagreement

among the various courts as to the proper test for determining whether the RLA takes precedence over discrimination statutes.” Malobabich v. Norfolk Southern

Corp., 2011 WL 1791306, at *2 (W.D.Pa. May 10, 2011)

(contrasting decisions applying the independent-right

standard with decisions applying the CBA-interpretation standard). The conflict predates Hawaiian Airlines. See, e.g., Middleton v. CSX Corp., 694 F.Supp. 941

947 (S.D.Ga. 1988) (“[w]hile the Supreme Court has

31

reserved the specific question of whether railroad employees must exhaust the remedies outlined in the

Railway Labor Act before bringing a § 1981 claim

against the employer, ... lower courts have faced the

issue and reached conflicting results.”).

The lower courts disagree about which standard is

the majority rule. Several opinions hold that no preemption or preclusion of discrimination claims is the prevailing view. “[M]ost of the cases addressing whether

the RLA preempts claims under federal anti-discrimination statues have held that there is no preemption.”

Adams v. American Airlines, Inc., 2000 WL 14399, at

*7. “[A] majority of cases have held that federal statutory claims are not ‘minor disputes’ within the ambit

of the RLA....” Adams v. New Jersey Transit Rail Operations, 2000 WL 224107, at *9 (S.D.N.Y. Feb. 28, 2000).

“The overwhelming majority of cases have found that

federal statutory claims were not ‘minor disputes’

within the ambit of the RLA and, thus, an independent

federal statutory claim could be pursued.” McElveen v.

CSX Transp., Inc., 1996 WL 481105, at *4 (D.S.C. Aug.

21, 1996). But other opinions say the opposite. “[Plaintiff ’s] argu[ment] that federal civil rights claims are

categorically excepted from RLA’s dispute-resolution

procedures [is] undermined by the weight of authority.”

Roache v. Long Island Railroad, 487 F.Supp.3d 154,

167-68 (E.D.N.Y. 2020). “[N]umerous courts have held

that the RLA precludes claims brought pursuant to all

manner of federal civil rights statutes....” Crayton v.

Long Island R.R., 2006 WL 38333114, at *5 (E.D.N.Y.

Dec. 29, 2006).

32

The conflict regarding whether the RLA limitation

is jurisdictional is also well recognized.

[T]here is a conflict in the circuits on whether

the RLA’s assignment of “jurisdiction” to an

adjustment board to resolve disputes arising

from interpretation of a collective bargaining

agreement deprives a federal district court of

subject matter jurisdiction over such a dispute. After Arbaugh v. Y & H Corp., 546 U.S.

500, (2006), expressed concern that courts too

often mischaracterize non-jurisdictional requirements as jurisdictional, one circuit held

that arbitration before an adjustment board

under the RLA is mandatory but not jurisdictional, Emswiler v. CSX Transp., Inc., 691 F.3d

782, 788-90 (6th Cir. 2012), and another held

that the arbitration requirement is jurisdictional. Oakey v. U.S. Airways Pilots Disability

Income Plan, 723 F.3d 227, 235-38 (D.C. Cir.

2013).

Richardson v. BNSF Ry. Co., 2 F.4th 1063, 1073-74 (8th

Cir. 2021) (Colloton, J., concurring). “Courts are split

on whether RLA preemption is a matter of jurisdiction

because it stems from statutory text and not the Supremacy Clause. The D.C. Circuit characterizes it as

jurisdictional, but the Sixth and Ninth Circuits do not.”

Ratfield, 2023 WL 5178593, at *8. “[C]ircuits have divided on the resolution of that issue.” Beckington v.

American Airlines, Inc., 926 F.3d 595, 606 n.7 (9th Cir.

2019). “A circuit split has arisen regarding whether

the RLA’s mandatory arbitral mechanism is ‘jurisdictional’ or instead implicates only the court’s ability to

33

reach the merits of the dispute and grant relief.”

Locke v. U.S. Airways, Inc., 2013 WL 5441725, at *2

n.1 (D.Mass. Sept. 27, 2013); see Giles v. National Railroad Passenger Corp., 59 F.4th 696, 702 n.3 (4th Cir.

2023) (contrasting decisions in the Sixth and District

of Columbia Circuits); Carlson v. CSX Transportation,

Inc., 758 F.3d at 831 (contrasting decisions in the Sixth

and District of Columbia Circuits).

II.

THE EIGHTH CIRCUIT DECISION IS

CONTRARY TO THE PREVIOUSLY EXPRESSED VIEWS OF THE GOVERNMENT

The decision of the Eighth Circuit is inconsistent

with the interpretation of the RLA urged by the United

States in this Court, and advanced by the EEOC in

the lower courts. The views of the United States are of

particular significance here, because the government

agencies for which the Solicitor General speaks include

the NRAB.

In its brief in Hawaiian Airlines, the government

repeatedly urged that the test for whether a claim was

preempted by the RLA is whether the claim was asserting a right created by the CBA, or a right created

by [in that case] state law. “In Andrews the Court held

that a railroad employee’s state law wrongful discharge claim is subject to the RLA’s exclusive arbitral mechanism where the ‘source of the employee’s

right...is the collective-bargaining agreement’....” Brief

for the United States as Amicus Curiae Supporting

Respondent, Hawaiian Airlines, Inc. v. Norris, No.

34

92-2058, 10. “Buell...confirms that when a cause of action is based on substantive rights independent of the

collective bargaining agreement, it is not preempted by

the RLA even if parallel claims could also have been

brought as minor disputes under the RLA.” Id., at 23.

As the government has repeatedly pointed out in other

cases, an arbitrator has no authority to enforce state

or federal rights outside the scope of a collective bargaining agreement. Brief of the United States as

Amicus Curiae, Barrentine v. Arkansas-Best Freight

System, Inc., 17-19; Brief of the United States as Amicus Curiae, Alexander v. Gardner Denver, 7.

The EEOC maintains that under Hawaiian Airlines the standard for determining whether a claim is

a minor dispute is whether it seeks to enforce an independent statutory right.

The Supreme Court in Hawaiian Airlines...,

followed the reasoning of Buell to hold that “a

state-law cause of action is not pre-empted by

the RLA if it involves rights and obligations

that exist independent of the [CBA].”...The

Court in Hawaiian Airlines thus reaffirmed

that the critical question in deciding whether

the RLA requires arbitration is whether the

source of the claim is a substantive legal right

independent of the CBA.

Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of PlaintiffAppellant, Brown v. Illinois Central Railroad Co., 10

n.9 (quoting 512 U.S. at 260). “The determination

whether a claim arising under a federal statute is

35

precluded by the RLA or LMRA does not turn on

whether the federal claim required interpretation of a

CBA....” Id., at 14-15.

III. THE CIRCUIT CONFLICT PRESENTS IMPORTANT PROBLEMS WHICH ONLY THIS

COURT CAN RESOLVE

This complex circuit conflict is of manifest importance. Almost every circuit has its own distinctive

combination of legal standard regarding preemption or

preclusion of discrimination claims and rule as to the

consequence of preemption or preclusion. The same

claim would be resolved in very different ways depending on the circuit in which it arose. Because of the interstate nature of the railroad and airline businesses,

there will often be in personam jurisdiction and venue

over the same claim in multiple circuits.

Although the courts of appeals which hold the

RLA preempts or precludes discrimination claims disagree about the nature of that limitation, the various

limitations are almost always fatal as a practical matter. In the First Circuit, a claim that involves the interpretation of a CBA is expressly extinguished. A holding

of preemption under either the conclusive-resolution

or CBA-interpretation standards will usually preclude

any enforcement of the anti-discrimination statute at

issue, because the Board’s jurisdiction under the RLA

does not include enforcing statutory rights. Hawaiian

Airlines, 512 U.S. at 254-55. The Sixth and Seventh

Circuits require claimants with discrimination claims

36

to get the Board to resolve related issues regarding the

meaning of the relevant CBA. There would often be no

way to do that, and such suggestions would be entirely

impracticable in cases in which issues about the meaning of a CBA (or CBA-related policies or practices)

arise in the middle of trial, as has repeatedly occurred,

including in the instant case.13 In many circuits a defendant can create these insurmountable obstacles

merely by positing some colorable dispute regarding

the meaning of the text of a CBA, the meaning of the

employer’s own written policies, or even (as here) the

nature of the employer’s unwritten customs or practices.

These are not problems that the lower courts can

solve. This Court’s own RLA decisions set out divergent standards which would regularly yield different

results in discrimination cases, as they would in the

instant case. It is difficult to fault the courts of appeals

because they have selected and applied different passages and standards from Hawaiian Airlines. Only the

Court can sort this all out.

In the courts below, plaintiff was limited by wellestablished Eighth Circuit precedent that RLA preemption or preclusion is a jurisdictional bar, a precedent

which—as the defendant and the district court pointed

out—prevented the lower courts from holding that the

13

E.g., Klotzbach-Piper v. National Railroad Passenger Corp.,

2021 WL 4033071, at *5-*6 (D.D.C. Sept. 3, 2021); Hamilton v.

National Passenger Railroad Corp., 2020 WL 6781234, at *4-*5

(D.D.C. Nov. 18, 2020); Said v. National Railroad Passenger

Corp., 390 F.Supp.3d 46, 54-57 (D.D.C. 2019).

37

defendant had waived that issue by failing to raise it

for more than two years after the commencement of

this action. Since the decision in Arbaugh v. Y & H

Corp., 546 U.S. 500 (2006), this Court has granted certiorari fifteen times to determine whether standards

under particular statutes are jurisdictional. E.g., Santos-Zacaria v. Garland, 598 U.S. 411 (2023) (Immigration and Naturalization Act); MOAC Mall Holdings

LLC v. Transform Holdco LLC, 598 U.S. 288 (2023)

(Bankruptcy Act); Wilkins v. United States, 598 U.S.

152 (2023) (Quiet Title Act); Boechler v. Commissioner

of Internal Revenue, 596 U.S. ___, 142 S.Ct. 1493

(2022) (Internal Revenue Code). This Court regularly

addresses this issue because of the “harsh consequences” of treating a legal rule as jurisdictional, especially the rule that “courts must enforce jurisdictional

rules...even in the face of a litigant’s forfeiture or

waiver.” Santos-Zacaria, 143 S.Ct. at 1103.

The Court should grant review in this case, both

to correct the unduly broad standard for RLA preemption and preclusion that seriously obstructs the rights

of railroad and airline employees to be free from unlawful discrimination, and to apply to the RLA “the

important distinctions between jurisdictional prescriptions and claim-processing rules.” Reed v. Elsevier, Inc.

v. Muchnik, 559 U.S. 154, 161 (2010).

---------------------------------♦---------------------------------

38

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the Eighth Circuit.

Respectfully submitted,

ERIC SCHNAPPER

Counsel of Record

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

schnapp@uw.edu

DENNIS E. EGAN

COOPER S. MACH

THE POPHAM LAW FIRM

712 Broadway, Suite 100

Kansas City, MO 64105

(816) 221-2288

MARTIN M. MEYERS

THE MEYERS LAW FIRM, LC

4435 Main St., Suite 503

Kansas City, MO 64111

(816) 444-8500

Counsel for Petitioner