Opposition Brief — Nancy Avina, Petitioner v. Union Pacific Railroad

No. 23-275

IN THE

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_______________

NANCY AVINA,

Petitioner,

v.

UNION PACIFIC RAILROAD CO.,

Respondent.

_______________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

_______________

BRIEF IN OPPOSITION

_______________

THOMAS H. DUPREE JR.

Counsel of Record

ZACHARY B. COPELAND

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., NW

Washington, DC 20036

(202) 955-8500

tdupree@gibsondunn.com

Counsel for Respondent Union Pacific Railroad Co.

QUESTION PRESENTED

The Railway Labor Act requires all disputes involving the “interpretation or application” of collective

bargaining agreements to be resolved through arbitration. 45 U.S.C. § 153 First (i). In this case, petitioner’s discrimination claims turned on whether a

faxed resume constituted a job application under the

collective bargaining agreement. The question presented is whether the Eighth Circuit correctly held,

consistent with this Court’s precedent and every other

circuit to have addressed the issue, that petitioner’s

claims must be resolved through arbitration.

ii

RULE 29.6 STATEMENT

Pursuant to this Court’s Rule 29.6, undersigned

counsel states that respondent Union Pacific Railroad

Company is a wholly owned subsidiary of Union Pacific Corporation, a publicly traded company. No publicly traded corporation is known to own 10% of the

stock of Union Pacific Corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................................i

RULE 29.6 STATEMENT .......................................... ii

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 2

REASONS FOR DENYING THE PETITION ............ 9

I.

The Decision Below Does Not Conflict With

The Decision Of Any Other Circuit And Is

Consistent With The Views Of The United

States ............................................................ 10

A. The Circuits Are In Agreement ............. 10

B. The Decision Below Aligns With The

Views Of The United States .................. 17

II. There Is No Other Reason To Grant

Review ........................................................... 18

A. The Decision Below Was Correct .......... 19

B. This Case Is A Poor Vehicle For Review

Of Any RLA Question ............................ 21

CONCLUSION .......................................................... 25

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Am. Airlines, Inc.,

2000 WL 14399 (10th Cir. Jan. 10, 2000) ........... 13

Alaska Airlines Inc. v. Schurke,

898 F.3d 904 (9th Cir. 2018) ................................ 12

Atlas Air, Inc. v. Int’l Bhd. of Teamsters,

943 F.3d 568 (2d Cir. 2019) ................................. 11

Austin v. Minn. Mining & Mfg. Co.,

193 F.3d 992 (8th Cir. 1999) .................................. 6

Bates v. Long Island R.R. Co.,

997 F.2d 1028 (2d Cir. 1993) ............................... 11

Bhd. of Locomotive Eng’rs v.

Long Island R.R. Co.,

85 F.3d 35 (2d Cir. 1996) ..................................... 11

Bhd. of R.R. Trainmen v.

Chi. River & Ind. R.R. Co.,

353 U.S. 30 (1957) .................................................. 4

Boldt v. N. States Power Co.,

904 F.3d 586 (8th Cir. 2018) .................................. 8

Brown v. Ill. Cent. R.R. Co.,

254 F.3d 654 (7th Cir. 2001) .......................... 14, 20

Carlson v. CSX Transp., Inc.,

758 F.3d 819 (7th Cir. 2014) ................................ 18

Carmona v. Sw. Airlines Co.,

536 F.3d 344 (5th Cir. 2008) ................................ 15

City of Oklahoma City v. Tuttle,

471 U.S. 808 (1985) .............................................. 22

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n,

491 U.S. 299 (1989) ............................................ 3, 4

Elgin, Joliet & E. Ry. v. Burley,

325 U.S. 711 (1945) ................................................ 3

Emswiler v. CSX Transp., Inc.,

691 F.3d 782 (6th Cir. 2012) ................................ 16

Fry v. Airline Pilots Ass’n, Int’l,

88 F.3d 831 (10th Cir. 1996) ................................ 13

Gay v. Carlson,

60 F.3d 83 (2d Cir. 1995) ..................................... 11

Giles v. Nat’l R.R. Passenger Corp.,

59 F.4th 696 (4th Cir. 2023) ................................ 21

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994) .................... 1, 3, 4, 7, 8, 14, 17

Hirras v. Nat’l R.R. Passenger Corp.,

44 F.3d 278 (5th Cir. 1995) .................................. 15

Johnson v. Humphreys,

949 F.3d 413 (8th Cir. 2020) .................................. 8

Lawn v. United States,

355 U.S. 339 (1958) .............................................. 21

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988) .......................................... 4, 17

McAlester v. United Air Lines, Inc.,

851 F.2d 1249 (10th Cir. 1988) ............................ 13

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Monroe v. Mo. Pac. R.R. Co.,

115 F.3d 514 (7th Cir. 1997) ................................ 15

O’Brien v. Consol. Rail Corp.,

972 F.2d 1 (1st Cir. 1992) .................................... 16

Pilkington v. United Airlines,

112 F.3d 1532 (11th Cir. 1997) ............................ 16

Pittsburgh & Lake Erie R.R. Co. v.

Ry. Labor Execs.’ Ass’n,

491 U.S. 490 (1989) ................................................ 4

Polk v. Amtrak Nat’l R.R. Passenger Corp.,

66 F.4th 500 (4th Cir. 2023) ............................ 3, 16

Ret. Plans Comm. of IBM v. Jander,

140 S. Ct. 592 (2020) ............................................ 23

Saridakis v. United Airlines,

166 F.3d 1272 (9th Cir. 1999) .............................. 12

Schiro v. Farley,

510 U.S. 222 (1994) .............................................. 22

Slocum v. Del., Lackawanna & W. R.R. Co.,

339 U.S. 239 (1950) ................................................ 4

Stouffer v. Union R.R. Co.,

85 F.4th 139 (3d Cir. 2023) .................................. 16

Union Pac. R.R. Co. v. Sheehan,

439 U.S. 89 (1978) .............................................. 1, 3

Urena v. Am. Airlines, Inc.,

152 F. App’x 63 (2d Cir. 2005) ............................. 12

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Wis. Cent., Ltd. v. Shannon,

539 F.3d 751 (7th Cir. 2008) ................................ 15

Wood v. Milyard,

566 U.S. 463 (2012) .............................................. 21

Youakim v. Miller,

425 U.S. 231 (1976) .............................................. 21

Statutes

45 U.S.C. § 151a .......................................................... 3

Rules

Sup. Ct. R. 10............................................................. 17

Other Authorities

Frank N. Wilner, The Railway Labor Act: Why,

What and for How Much Longer—Part II,

57 Transp. Prac. J. 129 (1990) ............................... 3

Kelly Collins Woodford et al., Complete

Preemption Under the Railway Labor Act,

36 Transp. L.J. 261 (2009) ..................................... 2

1

BRIEF IN OPPOSITION

Respondent Union Pacific Railroad Company respectfully submits this brief in opposition to the petition for a writ of certiorari.

INTRODUCTION

The Railway Labor Act (RLA) requires all “minor

disputes” in the railroad industry to be heard by an

arbitrator, not by the courts. A minor dispute, as this

Court held in Hawaiian Airlines, Inc. v. Norris, is one

that “involve[s] controversies over the meaning of an

existing collective bargaining agreement in a particular fact situation.” 512 U.S. 246, 253 (1994) (quotation

marks omitted). In the decision below, the Eighth Circuit correctly applied the RLA and this Court’s precedent to preclude discrimination claims that could not

be resolved without interpreting the collective bargaining agreement.

Every circuit to have considered that question has

concluded, like the Eighth Circuit here, that claims

requiring the interpretation of a collective bargaining

agreement must be arbitrated. If the claim arises under federal law, it is precluded; if the claim arises under state law, it is preempted. Under no circumstance

can the claim be litigated in court. This unanimous

view of the circuits is consistent with Congress’s “essential” goal in passing the RLA: to keep minor disputes “out of the courts.” Union Pac. R.R. Co. v.

Sheehan, 439 U.S. 89, 94 (1978) (per curiam).

Petitioner’s alleged split on this question is contrived and nonexistent. Petitioner argues that some

circuits hold that discrimination claims are never

“preempted or precluded by the RLA” because they

“are based on independent statutes.” Pet. 2. But that

2

is simply wrong. No circuit has endorsed that illogical

result, which would blow a hole in Congress’s framework for channeling the interpretation of collective

bargaining agreements to a designated arbitration tribunal. Nor do any circuits differ from the Eighth on

the proper rule for identifying minor disputes. All circuits to have been presented with the question have

applied the same familiar rule established in Hawaiian Airlines. This Court need not grant review merely

to reiterate what it has already said.

There is no reason to review this case. The Eighth

Circuit applied the stated rule correctly, and petitioner does not claim otherwise. And petitioner admits that she failed to argue below that RLA preclusion is not a jurisdictional bar, raising waiver and

preservation hurdles that make this case a poor vehicle for addressing the shallow circuit conflict on that

issue. Moreover, no matter what this Court might decide on any RLA question, the outcome of this case will

be the same: The district court already ruled, based

on undisputed facts, that petitioner’s claims would fail

on the merits were they not precluded by the RLA.

This Court should not waste its resources on a case

where its ruling will not matter.

The Court should deny the petition.

STATEMENT

1. The early U.S. railroad industry was riven with

tension between labor and management, which frequently boiled over into strikes, sometimes violent.

See Kelly Collins Woodford et al., Complete Preemption Under the Railway Labor Act, 36 Transp. L.J.

261, 283 (2009). Seeking to quell this tension after “a

half-century of worker agitation, social turmoil and

congressional experimentation,” Congress in 1926

3

passed the country’s first major nationwide labor legislation: the RLA. Frank N. Wilner, The Railway Labor Act: Why, What and for How Much Longer—Part

II, 57 Transp. Prac. J. 129, 130 (1990). The RLA “promote[s] stability in labor-management relations by

providing a comprehensive framework for resolving

labor disputes.” Hawaiian Airlines, 512 U.S. at 252.

Under this framework, the “two classes” of labor

disputes—“the major and the minor disputes”—are

resolved through distinct mechanisms. Elgin, Joliet

& E. Ry. v. Burley, 325 U.S. 711, 723-24 (1945). Major

disputes, which are “large issues” relating to “the formation of collective agreements or efforts to secure

them,” id., proceed through a “lengthy process of bargaining and mediation,” Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n (Conrail), 491 U.S. 299, 302 (1989).

Minor disputes, on the other hand, are those that

“aris[e] or grow[] ‘out of grievances or out of the interpretation or application of [collective bargaining]

agreements concerning rates of pay, rules, or working

conditions.’” Id. at 303 (quoting 45 U.S.C. § 151a).

They are “subject to compulsory and binding arbitration before” either the “National Railroad Adjustment

Board” or “an adjustment board established by the

employer and the unions representing the employees”

(collectively, the “Adjustment Board”), which have

“exclusive jurisdiction over minor disputes.” Id. at

303-04.

“Congress considered it essential to keep these socalled ‘minor’ disputes within the Adjustment Board

and out of the courts.” Union Pac. R.R. Co., 439 U.S.

at 94; see Polk v. Amtrak Nat’l R.R. Passenger Corp.,

66 F.4th 500, 505 (4th Cir. 2023) (noting RLA’s purpose was to “get[] courts out of the business of interpreting [collective bargaining agreements]”). To carry

4

out that congressional mandate, this Court has developed a clear rule for identifying minor disputes that

traces the RLA’s own language: A minor dispute is

one that “grow[s] out of the interpretation of existing

[collective bargaining] agreements.” Slocum v. Del.,

Lackawanna & W. R.R. Co., 339 U.S. 239, 243 (1950).

The Court has reiterated this rule on many occasions

over the last three-quarters of a century. See, e.g.,

Conrail, 491 U.S. at 305 (“The distinguishing feature

of [a minor dispute] is that the dispute may be conclusively resolved by interpreting the existing [collective

bargaining] agreement.”); Pittsburgh & Lake Erie

R.R. Co. v. Ry. Labor Execs.’ Ass’n, 491 U.S. 490, 496

n.4 (1989) (“Minor disputes are those involving the interpretation or application of existing contracts.”);

Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. Co.,

353 U.S. 30, 33 (1957) (minor disputes are “controversies over the meaning of an existing collective bargaining agreement”).

Most recently, in Hawaiian Airlines, the Court addressed how that rule applies to claims that arise not

directly out of a collective bargaining agreement, but

from some other legal source. Importing the standard

established in the related context of the Labor Management Relations Act, the Court explained that

claims based on “rights . . . that exist[] independent of

the contract” are not preempted or precluded by the

RLA, but that the RLA does preempt or preclude such

claims that are “dependent on the interpretation of a”

collective bargaining agreement, because those claims

are not actually “independent” of the agreement. 512

U.S. at 260, 262-63 (emphasis added) (citing Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 408-10

(1988)).

5

2. Petitioner Nancy Avina, a Hispanic woman in

her 40s, is a longtime employee of Union Pacific’s Kansas City warehouse and a member of the Transportation Communications Union. Pet. App. 2a, 58a. As a

member of the union, petitioner is and has been at all

relevant times subject to a 2006 collective bargaining

agreement between the union and Union Pacific. Id.

2a. Among other things, that agreement establishes

an application process for filling posted (or “bulletined”) Union Pacific job openings—through which

“[e]mployees desiring bulletined positions must have

their applications, in duplicate, on file in the office of

the bulletin, or in the office of the supervisor as may

be specified on the bulletin.” Id. 56a. The agreement

also provides for “amend[ments]” to the “bulletining

process.” Id. 57a.

In 2017, Union Pacific announced an opening for

a “material supervisor” position. Pet. App. 15a. Petitioner was interested in the position and attempted to

apply by “faxing her resume.” Id. 15a-16a. Since at

least 2009, however, Union Pacific has used an online

tool, “iTrakForce,” to collect applications for job openings. Id. 2a, 81a. Because petitioner had not submitted an application through iTrakForce, “her name

never made it onto the official list of candidates,” and

she did not receive the job. Id. 2a. The same position

opened up a year later. Id. 2a-3a. As before, petitioner sought to apply by faxing her resume rather

than using iTrakForce. Id. She again did not receive

the job. Id. She later “learn[ed] that the applicants

who received the positions were either younger [than

her], white, or both.” Id. 3a.

3. In 2019, petitioner filed this lawsuit against

Union Pacific in Missouri federal court. D. Ct. Dkt. 1.

She alleged that Union Pacific’s decisions not to hire

6

her for the material supervisor positions had been

based on her age or race and were thus discriminatory. D. Ct. Dkt. 28, ¶¶ 42-49, 50-56. Following discovery and motions practice, her case proceeded to an

eight-day jury trial.

Soon after trial began, it became clear that petitioner’s case depended in large part upon interpretation of the collective bargaining agreement. An undisputed element of her discrimination claims required

her to prove that she “was qualified and applied for”

the material supervisor positions. Austin v. Minn.

Mining & Mfg. Co., 193 F.3d 992, 995 (8th Cir. 1999).

As a result, at trial her counsel “specifically questioned Union Pacific employees about what the collective-bargaining agreement requires of applicants” in

an effort to show that petitioner had applied for the

positions. Pet. App. 3a. For instance, counsel asked

one company employee about his “understanding

about some of the policies” in the collective bargaining

agreement, including the requirement that applicants

“must have their applications in duplicate on file.” D.

Ct. Dkt. 130, at 21-27.

Based on petitioner’s repeated questioning and

statements regarding what it meant to “apply” for a

position under the collective bargaining agreement,

Union Pacific moved mid-trial to dismiss her claims

as “minor disputes” under the RLA that must be heard

by the Adjustment Board, not by a federal court. See

D. Ct. Dkt. 131. After the close of petitioner’s case-inchief, Union Pacific also moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a),

on both RLA preclusion and legal-sufficiency grounds.

See D. Ct. Dkt. 135.

The district court orally granted both motions

from the bench, Pet. App. 46a, and later issued a

7

written opinion setting forth its reasoning in more detail, id. 47a. The court’s opinion explained—relying

on Hawaiian Airlines—that although “discrimination

claims arising under federal law generally are not”

precluded by the RLA, such claims are precluded

where they require courts to determine “‘the meaning

of an existing [collective bargaining agreement] in a

particular fact situation.’” Id. 53a-55a (quoting 512

U.S. at 253). Petitioner’s claims fell into the latter

camp because, as her counsel’s questioning at trial

made clear, “provisions of the [collective bargaining

agreement] must be interpreted in deciding whether

[petitioner] properly applied for this position,” including what it means under the agreement for applicants

to “have their applications, in duplicate, on file.” Id.

68a. As Union Pacific had pointed out—and petitioner

never contested—RLA preclusion is a jurisdictional

bar. Id. 51a-52a; see Pet. 12-13 (conceding that petitioner “did not dispute” this point). The court therefore dismissed petitioner’s claims for lack of subjectmatter jurisdiction. Pet. App. 76a-77a.

The court also held, in the alternative, that Union

Pacific “would be entitled to judgment as a matter of

law” on petitioner’s claims even if they were not precluded by the RLA. Pet. App. 78a. That is because

petitioner had not shown, and could not show, that

she was “similarly situated” to the employees who

were considered for the position, another required element of her discrimination claims. Id. 79a-81a. The

record had established that petitioner had “never

properly submitted her application for either” material supervisor position using Union Pacific’s

iTrakForce system. Id. 81a. Nor had petitioner presented any “evidence that any applicant outside of the

protected [racial or age] group only emailed or faxed

or handed in a resume without using iTrakForce.” Id.

8

This failure to “show similarly situated employees not

part of the protected group were promoted to the positions instead” of petitioner would defeat her claims as

a matter of law, wholly independent of the RLA. Id.

4. The Eighth Circuit affirmed. Pet. App. 10a11a. The court of appeals first confirmed that the governing standard for determining whether petitioner’s

claims involve a “minor dispute,” and thus must be

dismissed for lack of subject-matter jurisdiction, was

whether they “‘require[]’ the interpretation of ‘some

specific provision of the collective-bargaining agreement.’” Id. 6a (quoting Boldt v. N. States Power Co.,

904 F.3d 586, 591 (8th Cir. 2018)). The court also

agreed that, to prove her discrimination claims, petitioner would have to show that she “actually applied

for either promotion.” Id. 7a.

Any attempt to make that showing, the court

held, would be “‘inextricably bound up’ with the interpretation of” the collective bargaining agreement.

Pet. App. 7a-8a (quoting Johnson v. Humphreys, 949

F.3d 413, 417 (8th Cir. 2020)). To conclude that petitioner had applied for the positions, an adjudicator

necessarily would have to decide “[w]hether faxed resumes count as applications.” Id. 8a. To decide that

question, in turn, an adjudicator would have to interpret the collective bargaining agreement. Id. The

trial record left no doubt on that score: It was “replete

with questioning, testimony, and evidence revealing

the necessity of interpreting . . . the [collective bargaining agreement].” Id. 9a.

Because petitioner’s “case involve[d] a ‘minor dispute’ over the meaning of a collective-bargaining

agreement,” it could not proceed in federal court. Pet.

App. 10a (quoting Hawaiian Airlines, 512 U.S. at

253).

The task of interpreting the collective

9

bargaining agreement was reserved for the Adjustment Board alone. Hence, the court concluded, “[i]f

[petitioner] wants to pursue this case further, she will

have to do so elsewhere.” Id. And since the RLA presented a jurisdictional bar to petitioner’s claims—

which she once again “did not” contest, Pet. 17—the

court did not review the district court’s alternative

ruling that petitioner’s claims failed as a matter of

law, Pet. App. 8a n.4.

REASONS FOR DENYING THE PETITION

The federal courts of appeals are unanimous on

the question presented by this case—whether the

RLA preempts or precludes courts from hearing

claims that require interpretation of a collective bargaining agreement. It does. The unanimity among

the circuits on this question is not surprising, as this

Court’s Hawaiian Airlines decision already addressed

the issue and provided the controlling legal rule. Nor

is there any other compelling reason for review. The

decision below correctly applied the controlling rule to

the facts here. The distinct, unrelated jurisdictional

issue that petitioner never raised below but now attempts for the first time to inject into the case is not

cleanly presented and would implicate a host of

waiver and preservation problems. And even if this

Court adopted petitioner’s view of the law—on what

constitutes a minor dispute or on whether RLA preclusion is jurisdictional—it would almost certainly

make no difference to the outcome of this case. The

Court should deny the petition.

10

I.

THE DECISION BELOW DOES NOT CONFLICT

WITH THE DECISION OF ANY OTHER CIRCUIT

AND IS CONSISTENT WITH THE VIEWS OF

THE UNITED STATES.

Petitioner seeks to portray the Eighth Circuit’s

decision as inconsistent with the decisions of other circuits and the views of the United States. Neither portrayal is accurate.

A. The Circuits Are In Agreement.

The decision below held that a dispute is minor

under the RLA, and thus cannot be heard by the

courts, if it “require[s] the interpretation of some specific provision of [a] collective-bargaining agreement.”

Pet. App. 6a (quotation marks omitted). This holding

tracks Hawaiian Airlines to the letter, and the same

rule is applied uniformly by the federal courts of appeals. Petitioner attempts to manufacture a circuit

conflict by asserting that (1) some circuits hold that

claims “involv[ing] a right created by statute” are

never “preempted or precluded by the RLA,” and

(2) other circuits have adopted a different rule than

the Eighth Circuit for identifying which claims are minor disputes under the RLA. Pet. 18-19. Both assertions are wrong. The posited conflict is illusory.

1. Petitioner first points to the Second, Ninth, and

Tenth Circuits as purportedly holding that the RLA

never preempts or precludes claims, including discrimination claims, that are “based on independent

statutes, and are not created by a collective-bargaining agreement.” Pet. 2. This characterization of the

cases cited is incorrect. But even if any of petitioner’s

dated cases ever stood for that proposition, their holdings did not survive Hawaiian Airlines, as later controlling cases from these three circuits make clear.

11

The primary (and pre–Hawaiian Airlines) Second

Circuit case cited by petitioner, for instance, does not

conflict with the decision below. There, the plaintiffs

had brought statutory discriminatory-discharge

claims against a railroad. See Bates v. Long Island

R.R. Co., 997 F.2d 1028, 1034 (2d Cir. 1993). Although the circuit held that those claims were not precluded by the RLA, it did not answer the pertinent

question here—whether interpretation of a collective

bargaining agreement would be required to resolve

the claims. See id. The railroad had raised that point,

but the court elided it, noting only that the claims

“may implicate . . . portions of the[] collective-bargaining agreements.” Id. (emphasis added). Bates

thus did not hold, as petitioner wrongly suggests, that

there is no RLA preclusion even if interpretation of an

agreement is required.

Regardless, even if Bates could be read in that

way, it was superseded by Hawaiian Airlines. Post–

Hawaiian Airlines decisions from the Second Circuit,

although not arising directly in the context of statutory claims, have on several occasions applied the clarified rule governing claims requiring interpretation of

a collective bargaining agreement—without ever suggesting that some other rule would apply to statutory

claims. See, e.g., Atlas Air, Inc. v. Int’l Bhd. of Teamsters, 943 F.3d 568, 579 (2d Cir. 2019) (explaining that

“contract interpretation issues are the hallmark of a

minor dispute and thus subject to mandatory resolution” by the Adjustment Board); Bhd. of Locomotive

Eng’rs v. Long Island R.R. Co., 85 F.3d 35, 39 (2d Cir.

1996) (holding that claim was “outside the jurisdictional authority of the courts” where it involved “interpret[ation] [of] the provisions of the [collective bargaining agreement]”); Gay v. Carlson, 60 F.3d 83, 88

(2d Cir. 1995) (holding that claims were not

12

preempted because “[n]o interpretation of the collective bargaining agreement [was] required to resolve”

them). The sole post–Hawaiian Airlines Second Circuit decision that petitioner cites is irrelevant to the

question presented, as it neither addressed the governing rule nor involved a statutory claim requiring

interpretation of a collective bargaining agreement.

See Urena v. Am. Airlines, Inc., 152 F. App’x 63, 65 (2d

Cir. 2005) (unpublished).

The single Ninth Circuit case cited by petitioner

is equally unhelpful to her position. Far from establishing a circuit conflict, that case in fact articulated

precisely the same rule as the Eighth Circuit did below. As the Ninth Circuit explained, the question

whether a dispute is “minor” turns on whether it “can

be resolved without interpreting the [collective bargaining] agreement itself.” Saridakis v. United Airlines, 166 F.3d 1272, 1277 (9th Cir. 1999). Applying

that rule to the multitude of state and federal claims

brought by the plaintiff, the court held that some

claims were preempted or precluded because they did

“require[] an interpretation of the” agreement, while

others were not preempted or precluded because they

presented “purely factual questions” that did not require interpretation of the agreement. Id. at 1277-78.

Nothing in the court’s analysis rested on whether the

claims were statutory. Indeed, the en banc Ninth Circuit has since expressly rejected any such distinction,

holding that even where a claim is “not grounded in”

a collective bargaining agreement but is instead based

on a statute, the claim is preempted or precluded “to

the extent there is an active dispute over the meaning

of contract terms.” Alaska Airlines Inc. v. Schurke,

898 F.3d 904, 921 (9th Cir. 2018) (en banc) (emphasis

and quotation marks omitted).

13

Petitioner’s Tenth Circuit cases likewise reflect no

circuit conflict. McAlester—which also pre-dates Hawaiian Airlines—merely stands for the uncontroversial proposition that discrimination claims are not per

se preempted or precluded by the RLA. See McAlester

v. United Air Lines, Inc., 851 F.2d 1249, 1254 (10th

Cir. 1988). All agree on that point. But the court was

not presented with the question presented here—

whether discrimination claims requiring interpretation of a collective bargaining agreement are

preempted or precluded. As to that issue, later Tenth

Circuit cases have properly emphasized that “the

threshold question” for any statutory claim is

“whether resolution of the federal and state law

claims . . . requires interpretation or application of” a

collective bargaining agreement. Fry v. Airline Pilots

Ass’n, Int’l, 88 F.3d 831, 836 (10th Cir. 1996). And

petitioner’s other Tenth Circuit case explicitly cuts

against its assertion of a conflict. That case explained,

consistent with the decision below, that the RLA bars

“any suit that is inextricably intertwined with consideration of the terms of the labor contract.” Adams v.

Am. Airlines, Inc., 2000 WL 14399, at *7 (10th Cir.

Jan. 10, 2000) (unpublished) (citing Fry, 88 F.3d at

836); cf. Pet. App. 8a (holding that petitioner’s claims

are “inextricably bound up with the interpretation” of

the collective bargaining agreement (quotation marks

omitted)).

In sum, the Second, Ninth, and Tenth Circuits do

not conflict with the Eighth on the question presented.

All four circuits apply the familiar Hawaiian Airlines

rule.

2. Petitioner’s next attempt to gin up a circuit conflict is even less tenable. Put simply, petitioner argues that there is some daylight between a rule that a

dispute is minor if it can be “‘conclusively resolved’ by

14

interpreting the [collective bargaining agreement],”

and a rule that a dispute is minor if it “require[s] interpretation of the collective bargaining agreement.”

Pet. 24-26 (quotation marks omitted). This same argument was raised by the petitioner in Hawaiian Airlines, and this Court rejected it, holding that the two

phrasings of the rule are “fully consistent” with each

other. 512 U.S. at 262-63. And the circuits that petitioner identifies as purportedly adopting one or the

other phrasing have in fact used both phrasings interchangeably—including in many of petitioner’s own

cited authorities.

Take, for instance, the Seventh Circuit. Petitioner claims that it “applies a conclusive-resolution

standard,” citing two cases (Carlson and Brown). Pet.

22-23. But one of those cases, Brown, is peppered with

both phrasings, refuting any claim that the circuit has

come down firmly on one side. Brown uses variants of

“conclusively resolved” nearly a dozen times, and also

uses “requires interpretation of” several times, all to

mean precisely the same thing. Compare, e.g., Brown

v. Ill. Cent. R.R. Co., 254 F.3d 654, 664 (7th Cir. 2001)

(“[T]he RLA will not bar a plaintiff from bringing an

independent state or federal claim in court unless the

claim could be ‘conclusively resolved’ by the interpretation of a [collective bargaining agreement].”), with

id. (“[A] plaintiff employee [may] bring an ADA claim

in federal court against his employer (even if his employment is governed by a [collective bargaining

agreement] which is subject to the RLA), unless the

resolution of his ADA claim requires the court to interpret the [collective bargaining agreement]’s terms as

a potentially dispositive matter.”) (emphases added).

There is no difference between these two articulations

of the same rule.

15

Other Seventh Circuit precedent has also used the

“requires interpretation of” language, contrary to petitioner’s assertion that the circuit has adopted a different rule. In one case, the court explained that the

RLA “preempts state-law actions that would require

interpreting a” collective bargaining agreement. Wis.

Cent., Ltd. v. Shannon, 539 F.3d 751, 763 (7th Cir.

2008).

In another, the court emphasized that

“whether the adjudication of a plaintiff’s claim requires interpretation of a” collective bargaining agreement is a “crucial[] element of the Hawaiian Airlines–

Lingle preemption standard.” Monroe v. Mo. Pac. R.R.

Co., 115 F.3d 514, 519 (7th Cir. 1997). The legal rule

articulated in these cases is precisely the same as the

one used in the decision below.

The Fifth Circuit, too, which petitioner wrongly

says has also adopted a distinct “conclusive-resolution

standard,” Pet. 24, has used both phrasings of the rule

interchangeably, including within a single decision.

The only case from that circuit that petitioner cites itself uses each. The court noted both (1) that the “distinguishing feature of a minor dispute is that [it] may

be conclusively resolved by interpreting the existing

collective bargaining agreement,” and (2) that the federal claims at issue were thus not precluded because

they did not “require interpretation” of the collective

bargaining agreement. Carmona v. Sw. Airlines Co.,

536 F.3d 344, 348 (5th Cir. 2008) (cleaned up; emphases added). Other cases from the circuit have likewise

referenced both phrasings of the rule. See, e.g., Hirras

v. Nat’l R.R. Passenger Corp., 44 F.3d 278, 281 (5th

Cir. 1995) (using both).

There is thus no conflict between the Seventh or

Fifth Circuits and the Eighth Circuit. Their decisions

all apply the same Hawaiian Airlines rule: a dispute

is minor where it requires interpretation of a

16

collective bargaining agreement. Minor differences in

language do not alter the underlying rule.

As for the remaining circuits, petitioner acknowledges that the First, Fourth, and Sixth Circuits all apply this same legal rule. See Pet. 2, 24-27; see, e.g.,

Polk, 66 F.4th at 507 (“Since [plaintiff’s] Title VII

claim requires the interpretation of a [collective bargaining agreement], it is a minor dispute.”); Emswiler

v. CSX Transp., Inc., 691 F.3d 782, 793 (6th Cir. 2012)

(employment discrimination claim precluded where it

“requires interpretation of the collective bargaining

agreement”); O’Brien v. Consol. Rail Corp., 972 F.2d

1, 5 (1st Cir. 1992) (holding that claim under state discrimination statute “is barred because resolution of

[the] claim would require interpretation of the collective-bargaining agreement”).

Even the Third and Eleventh Circuits (which petitioner does not mention), the only other circuits to

have addressed the issue, have reached the same conclusion. See, e.g., Stouffer v. Union R.R. Co., 85 F.4th

139, 144 (3d Cir. 2023) (“[A] federal claim that depends for its resolution on the interpretation of a [collective bargaining agreement] lacks independence

from the [agreement], and the RLA precludes it.”);

Pilkington v. United Airlines, 112 F.3d 1532, 1538

(11th Cir. 1997) (explaining that claims are

preempted “where interpretation of a [collective bargaining agreement] is required”). There is simply no

circuit conflict on the question presented. Every circuit to have answered the question—which is all of

them but the D.C. and Federal Circuits—has arrived

at the same answer, mandated by Hawaiian Airlines.

17

B. The Decision Below Aligns With

The Views Of The United States.

With no actual divide among the circuits to point

to, petitioner also argues that certiorari is warranted

because the decision below is purportedly “contrary to

the previously expressed views of the government.”

Pet. 33. As an initial matter, courts of appeals routinely disagree with the government; such disagreement is hardly a “compelling reason[]” to grant certiorari. Sup. Ct. R. 10. In any event, there is no disagreement. The government briefs highlighted by petitioner either advocated for the same rule that the

Eighth Circuit applied here or did not speak to the

question at all.

The government’s amicus brief in Hawaiian Airlines, for example, agreed that this Court’s Lingle decision—recall that Lingle was the case addressing preclusion in the related context of the Labor Management Relations Act, see supra p. 4—“supplies an appropriate analogy” for the RLA. Br. for the U.S. as

Amicus Curiae Supporting Respondent, at 14, Hawaiian Airlines, Inc. v. Norris, No. 92-2058 (Jan. 5, 1994).

As the government explained, Lingle had held that a

“state tort was ‘independent of [a] collective-bargaining agreement’ because its resolution did ‘not require

construing that agreement.’” Id. at 15 (alterations

omitted) (quoting Lingle, 486 U.S. at 407). That rule,

the government went on, was “instructive in the RLA

context.” Id. This Court later agreed with the United

States, expressly “adopt[ing] the Lingle standard to

resolve claims of RLA pre-emption.” Hawaiian Airlines, 512 U.S. at 263. And it is that same rule—a

claim is a minor dispute if it requires interpretation of

a collective bargaining agreement—that the circuits,

including the Eighth Circuit, now unanimously apply.

18

The other government briefs cited by petitioner

are no more helpful to her position. One of them, a

relic from 1973, merely argued that where a claim is

“peculiarly statutory in nature, existing independently of the collective bargaining agreement,” the

claim should be “vindicated . . . in the courts.” Br. for

the U.S. as Amicus Curiae, at 7, Alexander v. Gardner-Denver Co., No. 72-5847 (Oct. 29, 1973). But that

says nothing about whether a statutory claim is independent of a collective bargaining agreement if it requires interpretation of that agreement. See Carlson

v. CSX Transp., Inc., 758 F.3d 819, 832 (7th Cir. 2014)

(“On occasion, . . . a claim is brought under state or

federal law that in reality asserts rights established

by a collective bargaining agreement.”). The government’s Barrentine brief, and the EEOC’s Brown brief,

are inapt for the same reason. See Br. for the U.S. as

Amicus Curiae, at 6, Barrentine v. Ark.-Best Freight

Sys., Inc., No. 79-2006 (Nov. 1980) (arguing that an

arbitrator has “no authority to decide purely statutory

matters” (emphasis added)); Br. of the EEOC as Amicus Curiae in Support of Plaintiff-Appellant, at 10 n.9,

Brown v. Ill. Cent. R.R. Co., No. 00-2349 (7th Cir. Oct.

13, 2000) (similar). Accordingly, there is no “inconsisten[cy],” Pet. 33, between the Eighth Circuit’s decision

and the government’s views as expressed in prior legal

briefs.

II. THERE IS NO OTHER REASON TO GRANT

REVIEW.

There is no reason that could justify this Court’s

review in light of the lack of any circuit conflict. Petitioner does not dispute that the Eighth Circuit correctly applied the legal rule to the facts, leaving no errors for this Court to fix. This case is also an exceptionally poor vehicle for addressing the question

19

actually presented or the distinct jurisdictional issue

that petitioner never mentioned below but now seeks

to raise in her petition. The jurisdictional issue, which

does not appear to be encompassed by petitioner’s

question presented, raises complicated preservation

and waiver problems that may ultimately prevent the

Court from deciding the legal question. And regardless, nothing this Court might decide on any RLA issue is likely to affect the outcome of the case. Even in

the unlikely event that the Court repudiates its precedent and adopts a radically different rule for identifying “minor disputes” under the RLA or holds that

RLA preclusion is not jurisdictional, petitioner would

still automatically lose on remand. That is because

the district court already ruled in the alternative, on

the undisputed factual record, that petitioner’s claims

fail on the merits. Given the uncontested facts, this

alternative ruling is exceedingly unlikely to be disturbed on appeal. This Court should preserve its resources for cases in which its review actually matters.

A. The Decision Below Was Correct.

This Court generally does not grant certiorari to

review alleged errors in the application of properly

stated legal principles. There is little reason for the

Court to do so here. Although petitioner disagrees

with the rule that the Eighth Circuit applied, she has

not even argued to this Court that the Eighth Circuit

erred in its application of that rule to her case. Nor

could she have. The decision below was plainly correct.

The court of appeals’ reasoning was sound. First,

petitioner could succeed on her discrimination claims

only if she showed that she had applied for the relevant positions. Pet. App. 7a. Second, to show that she

had applied for the relevant positions, petitioner

20

would have to establish that she had satisfactorily

completed the application process laid out in the collective bargaining agreement. Id. 7a-8a. Third, because the collective bargaining agreement did not explicitly address the use of iTrakForce, any adjudicator

would have to interpret the agreement to assess how

iTrakForce fits into the agreement’s application process and whether petitioner satisfied that process. Id.

8a. Finally, because interpretation of the agreement

was required to resolve petitioner’s claims, they were

precluded under the RLA as a minor dispute. Id. 10a.

The only link in this chain that petitioner even attempted to dispute below (but, again, does not now)

was the third. See CA8 Appellant Br. 20 (agreeing

that she had to show that she applied for the positions), 24 (agreeing that claims requiring interpretation of a collective bargaining agreement are precluded), 31-32 (agreeing that she had to show that she

had satisfied the agreement’s application process).

But there is no question that the “heart of the dispute”

here is “a disagreement over the interpretation” of the

collective bargaining agreement. Brown, 254 F.3d at

664. Specifically, the central question is what it

means to “have” an “application . . . on file,” or

whether any other express or implied term of the

agreement could be construed to permit petitioner to

apply for the positions by faxing her resume. This

question is dispositive. If faxing her resume was not

an “application” under the agreement, then her discrimination claims must fall. The decision below was

thus right to hold that whether she had applied for the

positions was “inextricably bound up” with interpretation of the agreement. Pet. App. 8a (quotation

marks omitted). There is no error for this Court to

correct.

21

B. This Case Is A Poor Vehicle For

Review Of Any RLA Question.

Review is also unwarranted because this case is a

poor vehicle to decide the actual question presented,

let alone the separate issue whether RLA preclusion

is jurisdictional.

The latter issue, which petitioner repeatedly

seeks to conflate with the actual question presented,

involves whether the Eighth Circuit properly held

that RLA preclusion deprives a federal district court

of subject-matter jurisdiction. Although there is some

disagreement on that question in the courts of appeals, see Giles v. Nat’l R.R. Passenger Corp., 59 F.4th

696, 702 n.3 (4th Cir. 2023) (noting a shallow two-circuit “split”), it is not cleanly presented here.

Just as this Court does not traditionally take

cases for purposes of error correction, it likewise

“[o]rdinarily” does not grant review on “questions not

raised or resolved in the lower court.” Youakim v. Miller, 425 U.S. 231, 234 (1976). This presumption

against review of new issues accords with the consistent practice of appellate courts, which “abstain

from entertaining issues that have not been raised

and preserved.” Wood v. Milyard, 566 U.S. 463, 473

(2012). Indeed, “[o]nly in exceptional cases will this

Court review a question not raised in the court below.”

Lawn v. United States, 355 U.S. 339, 362 n.16 (1958).

These principles all counsel firmly against granting review to consider the issue whether RLA preclusion is jurisdictional. There is nothing exceptional

here. Petitioner never raised or even hinted at the issue below. As she concedes, she “did not dispute” that

RLA preclusion was jurisdictional in the district

court, Pet. 12, and “did not ask” the Eighth Circuit to

assess the question, either, Pet. 17. For that reason,

22

if the Court did grant certiorari to resolve this issue,

it may not even be able to reach the merits of the issue. It would first have to navigate a thicket of factbound and thorny waiver and preservation questions

to assess “the propriety of reaching the merits” of the

jurisdictional issue. Schiro v. Farley, 510 U.S. 222,

229 (1994).

What is more, deciding the jurisdictional issue in

the negative—that is, holding that RLA preclusion is

not jurisdictional—could taint this Court’s consideration of the actual question presented as well. The district court had expressed some displeasure at RLA

preclusion being raised mid-trial, Pet. App. 77a n.14,

but determined that it was bound to decide the issue

because it went to the court’s subject-matter jurisdiction, id. 68a n.7. Petitioner now suggests that, absent

that jurisdictional nature of the objection, she may

have asked the district court to “reject [the] RLA objection as waived.” Pet. 13. This argument could become a live issue again if the Court decides that RLA

preclusion is not jurisdictional—such a decision would

likely render it improper for the Court to resolve the

question actually presented here without first remanding for the district court to assess any new

waiver issues in the first instance.

All of these complications potentially barring the

Court from reaching the merits of whatever questions

it might grant certiorari on are “important consideration[s]” weighing against taking up this case. Schiro,

510 U.S. at 229. A “decision to grant certiorari represents a commitment of scarce judicial resources with

a view to deciding the merits of one or more of the

questions presented in the petition.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (emphasis added). Those scarce resources would be wasted if

the Court ultimately concluded that it could not reach

23

the issues it wanted to reach because of waiver or

preservation problems. “[S]ound judicial practice”

thus “points toward declining to address” the jurisdictional issue, which petitioner failed to “properly preserve[].” Ret. Plans Comm. of IBM v. Jander, 140 S.

Ct. 592, 595 (2020) (Kagan, J., concurring).

There is another, even larger vehicle problem with

this case. No matter what the Court might hold on

the question presented (or on the jurisdictional issue),

it would almost certainly make no difference to the actual outcome of petitioner’s case. That is because

when the district court held that petitioner’s claims

were precluded by the RLA, the court also ruled, in

the alternative, that her claims would fail “as a matter

of law” in any event. Pet. App. 78a. The court explained, based on the “undisputed” factual record,

that petitioner was “not similarly situated to those

chosen” for the material supervisor positions “instead

of her” because, owing to her failure to use the

iTrakForce software, she had never been “within the

pool of candidates considered for the . . . positions.”

Id. 81a-82a. That fact doomed all of the claims at issue here.

Although the court of appeals did not review this

alternative ruling, Pet. App. 8a n.4, there is little

doubt that if it had, it would have affirmed. The ruling was amply supported by undisputed or unrebutted

evidence in the factual record. Petitioner admitted in

her trial testimony that she did not submit an application for either position through iTrakForce. See D.

Ct. Dkt. 153, at 945 (“Q. My question is, you did not

submit a bid in [iTrakForce] on that position [the first

material supervisor position]. Is that correct? A. I

did not.”); D. Ct. Dkt. 154, at 990 (“Q. . . . [Y]ou did

not bid in [iTrakForce for the second position], did

you? A: No.”). It was unrebutted that the candidates

24

who did receive the positions submitted their applications through iTrakForce. See D. Ct. Dkt. 151, at 40203; D. Ct. Dkt. 154, at 1081-82; CA8 Appellee Addendum, at 7-8. And no evidence whatsoever showed that

any candidate interviewed or selected for the positions

failed to apply through iTrakForce. On this record, no

adjudicator could conclude that petitioner was similarly situated to the candidates interviewed or selected for the positions. Petitioner cannot succeed on

her claims.

Moreover, her age-discrimination claims are triply defective. Leaving aside RLA preclusion, as well

as that petitioner cannot show that she was similarly

situated to those who were selected for the positions,

each age-discrimination claim independently fails for

additional reasons. The district court held that her

claim as to the first material supervisor position was

time-barred, Pet. App. 34a, which petitioner never

challenged. And, as the district court later explained,

her claim as to the second material supervisor position would “separately” fail on the merits “for the simple reason that the individual chosen for that position . . . was significantly older” than her. Id. 82a. Petitioner conceded that fact at trial. See D. Ct. Dkt.

154, at 991 (petitioner agreeing that successful applicant was “older” than her). Neither of these dispositive defects in petitioner’s age-discrimination claims

would be affected by anything that this Court decided

with respect to the RLA.

So even if this Court granted certiorari, expended

its limited time and resources hearing and deciding

this case, and adopted petitioner’s preferred view of

the law (that the RLA never “preempt[s] a claim seeking to enforce a right created by statute,” Pet. 16),

nothing would fundamentally change. The district

court has already expressed its view that petitioner’s

25

claims fail regardless, and the factual record is devoid

of any evidence that could lead the Eighth Circuit to

reach any different conclusion. Remand would thus

simply result in judgment once again being entered

for Union Pacific. This Court should reserve review

for those cases in which its intervention is both necessary and determinative. Here, it is neither.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

THOMAS H. DUPREE JR.

Counsel of Record

ZACHARY B. COPELAND

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, DC 20036

(202) 955-8500

tdupree@gibsondunn.com

Counsel for Respondent Union Pacific Railroad Co.

November 22, 2023