Reply Brief — The Boeing Company, Petitioner v. Southwest Airline Pilots Association, on Behalf of Itself and its Members

NO. 25-495

In the

Supreme Court of the United States

________________

THE BOEING COMPANY,

v.

Petitioner,

SOUTHWEST AIRLINES PILOTS ASSOCIATION,

________________

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Texas

________________

REPLY BRIEF FOR PETITIONER

________________

CRAIG S. PRIMIS

AARON L. NIELSON

KASDIN M. MITCHELL

Counsel of Record

CHRISTOPHER PAGLIARELLA KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS LLP 401 W. 4th St.

1301 Pennsylvania Ave., NW Austin, TX 78701

Washington, DC 20004

(512) 678-9100

(202) 389-5000

aaron.nielson@kirkland.com

Counsel for Petitioner The Boeing Company

January 30, 2026

i

TABLE OF CONTENTS

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

ARGUMENT ............................................................... 2

I.

The Decisions Below Create Clear Splits on

the Scope of RLA Preemption. ............................ 2

II. The Decisions Below Are Grievously Wrong. ..... 7

III. The Question Is Important and Presented in

an Excellent Vehicle for Confirming the

Breadth of RLA Preemption. ............................ 10

CONCLUSION ......................................................... 12

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Aset Corp.,

416 F.3d 170 (2d Cir. 2005)................................. 5

Baker v. Farmers Elec. Co-op., Inc.,

34 F.3d 274 (5th Cir. 1994) ............................. 3, 4

Barbanti v. MTA Metro N. Commuter R.R.,

387 F. Supp. 2d 333 (S.D.N.Y. 2005) .................. 6

Baylis v. Marriott Corp.,

906 F.2d 874 (2d Cir. 1990)................................. 5

Bristol-Myers Squibb Co. v. Superior Ct.,

582 U.S. 255 (2017) ........................................... 10

Cantero v. Bank of America, N.A.,

602 U.S. 205 (2024) ........................................... 12

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

491 U.S. 299 (1989) ............................................. 9

Fell v. Cont’l Airlines,

990 F. Supp. 1265 (D. Colo. 1998) ...................... 2

Gay v. Carlson,

60 F.3d 83 (2d Cir. 1995) .................................... 5

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994) ..................................... 1, 5, 8

iii

Int’l Ass’n of Machinists, AFL-CIO v. Cent.

Airlines, Inc.,

372 U.S. 682 (1963) ............................................. 1

Johnson v. Anheuser Busch, Inc.,

876 F.2d 620 (8th Cir. 1989) ..................... 3, 6, 12

Kimbro v. Pepsico, Inc.,

215 F.3d 723 (7th Cir. 2000) ........................... 5, 6

Kollar v. United Transp. Union,

83 F.3d 124 (5th Cir. 1996) ............................. 3, 4

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

486 U.S. 399 (1988) ....................................... 7, 10

Livadas v. Bradshaw,

512 U.S. 107 (1994) ........................................... 10

Milne Emps. Ass’n v. Sun Carriers,

960 F.2d 1401 (9th Cir. 1991) ............................. 6

Mohammed v. Am. W. Holding Corp.,

361 F. Supp. 2d 982 (D. Minn. 2005) .................. 2

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) ........................................... 12

In re Nw. Airlines Corp.,

483 F.3d 160 (2d Cir. 2007)............................. 8, 9

Odell v. Kalitta Air, LLC,

107 F.4th 523 (6th Cir. 2024) ............................. 6

Operating Eng’rs Pension Trust v. Wilson,

915 F.2d 535 (9th Cir. 1990) ............................... 6

iv

Polich v. Burlington N., Inc.,

942 F.2d 1467 (9th Cir. 1991) ............................. 6

Ratfield v. Delta Air Lines, Inc.,

686 F. Supp. 3d 780 (D. Minn. 2023) .................. 7

Sturge v. Nw. Airlines, Inc.,

658 F.3d 832 (8th Cir. 2011) ............................... 7

Wells v. General Motors Corp.,

881 F.2d 166 (5th Cir. 1989) ............................... 4

Statutes

45 U.S.C. §151a .................................................. 7, 10

Other Authorities

27 Williston on Contracts §69:32 (4th ed.) .............. 9

1

INTRODUCTION

Congress enacted the Railway Labor Act (RLA) in

1926. Yet SWAPA cannot point to a single case before

this one where a union or employee was allowed to sue

an employer’s supplier about working conditions

under a collective bargaining agreement (CBA). Any

split that radically expands potential liability in the

teeth of a 100-year-old statute should set off alarms.

There is a reason, moreover, why the RLA

preempts any “state-law claim” whose “resolution …

depends on an interpretation of the CBA,” Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994).

Negotiating CBAs would be orders of magnitude more

difficult if unions could avoid the RLA’s specialized

arbitration provisions by suing suppliers rather than

employers. After all, employers (who ultimately must

pay more for goods and services when suppliers’

liability risk increases) would have to try to negotiate

CBAs that address not just one body of law, but fifty.

See, e.g., Int’l Ass’n of Machinists, AFL-CIO v. Cent.

Airlines, Inc., 372 U.S. 682, 692 n.16 (1963).

SWAPA’s theory that the 2006 CBA is “irrelevant”

thus is as dangerous as it is wrong. A court cannot

decide whether Boeing’s alleged misrepresentations

caused SWAPA to accept new duties in the 2016 CBA

without knowing SWAPA’s existing duties under the

2006 CBA. No one can be fraudulently induced to do

something they were already obligated to do. It

therefore is impossible to assess what caused pilots to

agree to fly the 737 MAX without interpreting the

2006 CBA—thus triggering preemption. SWAPA’s

efforts to escape that conclusion uniformly fail.

2

ARGUMENT

I.

The Decisions Below Create Clear Splits on

the Scope of RLA Preemption.

A. The Texas intermediate court held that the

RLA does not apply outside of “disputes … between a

carrier by air and its employees.” App.91a-93a. Yet as

even the Texas Supreme Court acknowledged, “the

vast majority of courts that have addressed the issue,”

including the Fifth Circuit, “conclude[] that the Act

preempts all state-law claims that require

interpretation of a CBA between air carriers and their

employees, even if the dispute involves only one or

neither of them.” App.15a n.18 (collecting citations).

This rule is well recognized. See, e.g., Mohammed v.

Am. W. Holding Corp., 361 F. Supp. 2d 982, 985 & n.2

(D. Minn. 2005) (citing six circuits upholding

preemption of claims against “third-parties”).

Apart from the Texas court here, all SWAPA

offers against that wall of authority is dicta from a

single district court case from nearly 30 years ago. See

BIO.26 (citing Fell v. Cont’l Airlines, 990 F. Supp.

1265, 1273-74 (D. Colo. 1998)). That dicta does not

undermine what the “vast majority” of courts hold. At

most, it confirms a (lopsided) split about RLA

preemption of claims against third parties. That

counsels in favor of certiorari, not against it.

Rather than adopting the intermediate court’s

analysis, the Texas Supreme Court focused on the

elements of SWAPA’s claims—not the facts of this case

or Boeing’s defenses. Yet that approach itself conflicts

with precedent from the Fifth Circuit and other courts.

Other courts correctly assess if a claim’s “resolution …

requires interpretation of [a] CBA” by considering

3

whether interpretation is necessary to actually

“prove” the case. Kollar v. United Transp. Union, 83

F.3d 124, 126 (5th Cir. 1996); see Pet.18-20, 22-24. And

“defenses, as well as claims, must be considered in

determining whether resolution … requires

construing the [CBA].” Johnson v. Anheuser Busch,

Inc., 876 F.2d 620, 623 (8th Cir. 1989); see Pet.18-19.

Had SWAPA’s claims been adjudicated under Fifth

Circuit precedent, RLA preemption thus would have

applied—just as the Northern District of Texas

correctly explained. App.105a (quoting Kollar, 83 F.3d

at 126).

Nor could it be otherwise. Unions and employees

seeking to avoid preemption may try to reframe

contract claims against employers as tort claims

against third parties in hopes that doing so makes it

less obvious that litigation will require interpreting a

CBA. The RLA, however, is not so easily evaded.

Instead, preemption equally applies if interpreting a

CBA may be integral to a defense. See Pet.18-19; see

also e.g., Baker v. Farmers Elec. Co-op., Inc., 34 F.3d

274, 280 (5th Cir. 1994) (finding preemption where

defense relied on CBA). If a plaintiff’s reframing could

defeat preemption, any competent plaintiff’s counsel

should be able to duck the RLA by bringing “tort”

claims about working conditions against third parties

rather than contract claims against employers. That

is not the law.

B. SWAPA’s attempt to evade the splits created

by the Texas courts here thoroughly fails.

1. To begin, the appellate decisions here cannot be

reconciled with Fifth Circuit precedent. SWAPA does

not dispute that the employer in Kollar was not a

4

party to the suit. See 83 F.3d at 125. Even so, Kollar

analyzed the evidence needed “[t]o prove the falsity of

the representations,” rather than simply accepting

plaintiffs’ framing of the fraudulent inducement

allegations as not involving a CBA violation. Id. at

126. SWAPA, moreover, oddly asserts Kollar’s claim

was preempted because it “require[d] … rewrit[ing]” a

CBA. BIO.15. But Kollar’s holding expressly rested on

the fact that resolving the claim “requires

interpretation of the CBA left appropriately to

procedures established under the RLA.” 83 F.3d at

126.

Next, SWAPA tries to distinguish other Fifth

Circuit cases as “CBA-intertwined disputes.” BIO.16.

But that curious phrasing obscures Boeing’s point that

a CBA can be “relevant to the resolution” of a claim as

part of a defense. Baker, 34 F.3d at 281-82. SWAPA

may hope to evade the RLA in this litigation by not

framing its claim as a contract dispute with

Southwest, which plainly would be preempted. Yet

SWAPA’s “tort” claims against Boeing require SWAPA

to prove causation, and a court cannot resolve Boeing’s

causation defense without interpreting the 2006 CBA.

Under Fifth Circuit law, that would trigger RLA

preemption.

As a last-ditch effort, SWAPA falls back on Wells

v. General Motors Corp., 881 F.2d 166 (5th Cir. 1989).

But Wells predates Norris by a half-decade, and it is

telling that the post-Norris Fifth Circuit cases

discussed above did not cite it following Norris’s

clarifications. Regardless, Wells addresses when an

alleged CBA interpretation is not “reasonabl[e].” 881

F.2d at 174. Even if that distinction survived Norris,

5

it would not apply here. Southwest itself read the 2006

CBA—which expressly covers all 737s—the same way

that Boeing reads it. App. 96a. Nor did either Texas

appellate court suggest that Boeing’s (and

Southwest’s) interpretation of the 2006 CBA is

unreasonable.

2. The decisions below also cannot be reconciled

with other circuits’ precedent. In fact, SWAPA

concedes that other courts have upheld preemption of

claims against third parties. SWAPA instead asserts

(at 28) that those cases’ parties should have made

better arguments, or (at 29) that this Court should

reject other precedents as “outdated.” Yet courts

rightly continue to cite important RLA cases like

Baylis v. Marriott Corp., 906 F.2d 874 (2d Cir. 1990).

See, e.g., Anderson v. Aset Corp., 416 F.3d 170, 172 (2d

Cir. 2005). 1

SWAPA’s attempt to distinguish other third-party

cases require either disregarding Labor Management

Relations Act (LMRA) caselaw even though the same

preemption standard governs both the RLA and

LMRA, see Norris, 512 U.S. at 263, or misdescribing

claims as addressing “agents” of CBA parties rather

than third parties. BIO.30-31; see Kimbro v. Pepsico,

Inc., 215 F.3d 723, 727 (7th Cir. 2000) (claim against

employer’s business partner and partner’s employee).

1 SWAPA quotes (at 29) a suggestion that Baylis was “called into

question,” omitting that the point had nothing to do with the

issue here: whether third parties may invoke preemption. Gay v.

Carlson, 60 F.3d 83, 87 (2d Cir. 1995).

6

Nor is the Texas Supreme Court’s reasoning

consistent with other courts’. Other courts make

clear—expressly and in practice—that “defenses, as

well as claims, must be considered in determining

whether resolution of the state law claim requires

construing the collective bargaining agreement.”

Johnson, 876 F.2d at 623; accord Polich v. Burlington

N., Inc., 942 F.2d 1467, 1470 (9th Cir. 1991); see

Pet.22-23. Otherwise, courts would: (1) allow failureto-accommodate claims without considering whether

the defense would focus on the CBA, but see Odell v.

Kalitta Air, LLC, 107 F.4th 523, 532, 534 (6th Cir.

2024); (2) allow interference claims even when a

defense would require asking “what types of

disruptions of the contractual or economic

relationship” are allowed, but see Milne Emps. Ass’n v.

Sun Carriers, 960 F.2d 1401, 1412 (9th Cir. 1991); (3)

allow claims against third parties where the

defendant reported behavior that was grounds for

termination under a CBA, but see Kimbro, 215 F.3d at

727; and so forth. SWAPA’s position (at 19) assumes

the premise that the claims here do “not involve any

term of a CBA,” even though the plaintiffs in all these

cases also apparently framed their claims without

referencing CBA terms.

Finally, SWAPA sprinkles in cases denying

preemption where the claims had nothing to do with a

CBA. For example, SWAPA cites cases relating to a

promise with no basis in a CBA. See, e.g., Operating

Eng’rs Pension Trust v. Wilson, 915 F.2d 535, 538-39

(9th Cir. 1990) (falsehood that union agreement was

required); Barbanti v. MTA Metro N. Commuter R.R.,

387 F. Supp. 2d 333, 337 (S.D.N.Y. 2005)

(misrepresentation regarding position and salary).

7

SWAPA also cites cases concerning a retaliatory

motive that would have been unlawful irrespective of

a CBA. See, e.g., Sturge v. Nw. Airlines, Inc., 658 F.3d

832, 839 (8th Cir. 2011), Ratfield v. Delta Air Lines,

Inc., 686 F. Supp. 3d 780 (D. Minn. 2023). Of course,

the Court addressed retaliation claims in Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988)—

which SWAPA (correctly) never cited below to argue

that this dispute does not require interpreting a CBA.

Such cases are irrelevant.

II. The Decisions Below Are Grievously Wrong.

A. The Texas intermediate court’s decision is

flatly contrary to the RLA’s language, purpose, and

governing precedent. That is why similar attempts to

treat claims against third parties differently than

claims against employers have been roundly rejected

by “the vast majority of courts.” App.15a n.18.

Simply put, SWAPA’s defense of a third-party

carveout ignores what the RLA says. On its face, the

RLA governs “all disputes growing out of … the

interpretation or application” of CBAs. 45 U.S.C.

§151a (emphasis added). That language extends

beyond contract claims between CBA parties. Pet.3132. SWAPA, however, suggests that “seventeen

sections” defining the RLA’s “arbitration mechanism”

narrow Section 151a. BIO.26-27. But it makes no

sense to narrow the provision identifying “the

purposes of this chapter,” 45 U.S.C. §151a, with those

that do not purport to define the RLA’s scope.

Regardless, the RLA’s structure and purpose

doom SWAPA’s argument. The problems requiring

specialized RLA arbitration apply with equal force

when courts interpret CBAs to resolve claims against

8

third parties as against employers. SWAPA’s claims

prove the point. Given how easy it to repackage

contract claims about working conditions as tort suits

against third parties, it is impossible to carve out

third-party claims from RLA preemption while still

expecting uniformity. Pet.29. That is why the RLA

categorically “preempts a state-law claim if its

resolution ‘depends on an interpretation of [a] CBA.’”

App.13a (quoting Norris, 512 U.S. at 261).

B. SWAPA’s defense of the Texas Supreme

Court’s holding relies on a conclusory assertion: that

Southwest pilots would not have agreed to fly the MAX

in the 2016 CBA absent Boeing’s alleged torts. But

that bare assertion does not make the 2006 CBA

“irrelevant” to causation, much less excuse the court’s

failure to go beyond abstract elements.

SWAPA takes pains to obscure when the 2006

CBA was in force, stressing that because the CBA

became “amendable,” its “end” also “became

inevitable.” BIO.4. But that is a winding way of

admitting that the 2006 CBA remained in effect—and

thus defined SWAPA’s and Southwest’s obligations—

until it was renegotiated. As SWAPA admits, the

parties “had to maintain the status quo.” Id.

Unsurprisingly, SWAPA’s brief to the Texas Supreme

Court never mentioned the word “amendable.”

SWAPA’s lead authority on “amendable” CBAs,

moreover, supports Boeing: “During the pendency of

this re-negotiation process, the RLA ‘obligates the

parties to maintain the status quo,’” which means that

a CBA does not “expire” until “after the parties have

fully exhausted the dispute resolution and

renegotiation processes.” In re Nw. Airlines Corp., 483

9

F.3d 160, 167 (2d Cir. 2007) (cleaned up) (quoting

Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S.

299, 302 (1989)). This means that an amendable CBA

stays in effect even if negotiation of a new CBA may

be “‘almost interminable.’” Id. (citation omitted). Even

when a CBA governed by the RLA expires, rather than

merely (as here) becoming amendable, “the old

agreement continues in force.” Air Line Pilots Ass’n,

Int’l v. UAL Corp., 897 F.2d 1394, 1398 (7th Cir. 1990).

Here, the 2006 CBA defined the parties’ status

quo ante position against which SWAPA and

Southwest negotiated the 2016 CBA. Because it is

impossible to fraudulently induce employees to do

something they already were obligated by contract to

do, see, e.g., 27 Williston on Contracts §69:32 (4th ed.),

it is also impossible to know what effect, if any,

Boeing’s alleged misrepresentations had without

interpreting the 2006 CBA. To prevail, SWAPA must

prove that Boeing’s alleged statements induced pilots

not to hold out for a contract that excluded the MAX,

which SWAPA cannot do if Southwest never had to

offer such a contract because pilots already were

obligated to fly the MAX. Confronted with this central

flaw, SWAPA essentially asks the Court (at 11) to

assume that SWAPA’s interpretation of the 2006 CBA

is correct. But that is the very question that Congress

tasked a specialized arbitration body to answer.

SWAPA also nowhere disputes Justice Schenck’s

observation that its claim for “‘lost compensation due

to the grounding of the 737 MAX’” necessarily

“involve[s] wages and rates of pay calculated under

the 2016 CBA.” App.53a n.4. Instead, it pivots to an

argument never presented below that preemption may

10

not be grounded on uncontested CBA terms. BIO.13

(citing Lingle, 486 U.S. at 412 n.12). But the question

here is not a matter of checking a rate chart for a

“damages computation.” Livadas v. Bradshaw, 512

U.S. 107, 125 (1994). Instead, SWAPA’s tort claims

require a court to assess whether Boeing caused lost

compensation to each of the pilots who assigned a

claim to SWAPA. Causation thus will require

assessing whether each pilot was properly

compensated for the 2016 CBA’s terms, which

includes assessing wage-and-hour terms (including

seniority questions) and if the pilots were already

contractually obligated to operate any future variant

of the 737-model aircraft by the 2006 CBA.

Accordingly, no court can resolve SWAPA’s claims

because RLA preemption covers all “disputes growing

out of … the interpretation or application” of a CBA.

45 U.S.C. §151a.

III. The Question Is Important and Presented in

an Excellent Vehicle for Confirming the

Breadth of RLA Preemption.

A. RLA preemption—including of claims against

third parties—has long protected labor peace. There is

a reason that SWAPA cannot identify any case

allowing what it seeks here. This litigation also is an

ideal vehicle to reaffirm the importance of the RLA.

SWAPA cannot dispute that the RLA was thoroughly

briefed in four courts, nor that the issues here have

percolated in other courts. Texas, however, has

departed from the national consensus. This Court does

not hesitate to intervene to prevent large, outlier

jurisdictions from becoming magnets for improper

litigation. See, e.g., Bristol-Myers Squibb Co. v.

11

Superior Ct., 582 U.S. 255, 264 (2017). And because

the same preemption standard governs nearly every

industry through the LMRA, the danger is not

confined to trains and airlines. Pet.33-34.

B. SWAPA’s efforts to diminish this case’s

importance fail. To begin, SWAPA’s assertion (at 2)

that this case is “factually atypical” reflects confusion.

SWAPA’s own brief includes many cases (discussed

above) where courts ordered preemption in cases

involving unions or business partners of the

employers, or agreements displacing existing

contracts. See BIO.14-19.

What is “atypical”—indeed, unprecedented—is an

appellate court allowing a union to sue an employer’s

supplier about working conditions. Nor does SWAPA

offer a limiting principle to prevent litigation alleging

that an employer’s business partners improperly

influenced negotiations. On SWAPA’s telling, even

extreme claims like Baylis—plaintiffs suing their

replacements—would be fair game if framed as

“interference with prospective business.” BIO.17.

SWAPA’s observation (at 23) that other litigants

have only infrequently cited these Texas decisions is

puzzling. After all, this case is still on appeal. And

SWAPA’s dismissiveness (at 23) of the Texas

intermediate court’s jurisdiction as only governing

“five North Texas counties” omits that those counties

include Dallas, which hosts a population greater than

many States.

SWAPA’s suggestion (at 32), moreover, that the

petition challenges an application of state law is flatout wrong. All RLA preemption cases involve

determining under federal law whether a state-law

12

claim depends on interpreting a CBA. Boeing does not

dispute that Texas law sets forth the elements of

Texas torts. Rather, Boeing’s argument is that the

RLA—a federal law—requires courts to consider how

a claim must be proven, including how a plaintiff will

overcome defenses or rebuttal evidence. If litigation

requires interpreting a CBA, preemption follows.

Finally, SWAPA asserts (at 33) that the Texas

courts can revisit Boeing’s defenses later. But this

Court routinely grants review of preemption issues in

an interlocutory posture. See, e.g., Cantero v. Bank of

America, N.A., 602 U.S. 205 (2024); Nat’l Meat Ass’n

v. Harris, 565 U.S. 452 (2012). The Court should follow

that precedent rather than requiring a trial involving

more than 8,000 SWAPA members’ claims. SWAPA’s

assertion, moreover, reveals the problem: This case

would be preempted (as federal law requires) had the

Texas Supreme Court not declined to consider

“defenses, as well as claims” when assessing

preemption. Johnson, 876 F.2d at 623 (emphasis

added). SWAPA identifies no additional information

that would illuminate this Court’s review of Boeing’s

straightforward question presented.

CONCLUSION

The Court should grant the petition.

13

Respectfully submitted,

CRAIG S. PRIMIS

KASDIN M. MITCHELL

CHRISTOPHER PAGLIARELLA

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

AARON L. NIELSON

Counsel of Record

KIRKLAND & ELLIS LLP

401 W. 4th St.

Austin, TX 78701

(512) 678-9100

aaron.nielson@kirkland.com

Counsel for Petitioner The Boeing Company

January 30, 2026