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Acosta v. BNSF Railway Co.

United States District Court, W.D. Texas, El Paso Division

October 15, 2019

ANASTACIO ACOSTA, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          ANNE T. BERTON, UNITED STATES MAGISTRATE JUDGE

         On this day, the Court considered “BNSF Railway's Motion to Dismiss” (“Motion”), filed by Defendant BNSF Railway Company (“BNSF”) on June 19, 2019. (ECF No. 2). The matter was referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 1(d) of Appendix C of the Local Court Rules for a Report and Recommendation on September 13, 2019, by United States District Judge David C. Guaderrama. (ECF No. 5).

         For the reasons set forth below, the Court RECOMMENDS that Defendant BNSF Railway's Motion to Dismiss be GRANTED.

         I.BACKGROUND[1]

         a. Factual Background

         On March 29, 2019, Public Law Board 7048 (“Board”) issued Award No. 237 (“Award”). (ECF No. 1-1, p. 2).[2] The “Brotherhood of Maintenance of Way Employes [sic] Division - IBT Rail Conference” (“BMWED”) brought a claim on Plaintiff Anastacio Acosta's (“Acosta”) behalf against BNSF. (Id.). Acosta was terminated from his employment at BNSF as a Flagman on June 1, 2017, for allegedly not using his phone in hands-free mode while operating a company vehicle, in violation of policy. (Id. at 6-8). The Board found that BNSF “did not meet its burden of proof that [Acosta] was guilty of the charges.” (Id. at 9). The Board held that Acosta was to “be returned to service with seniority intact, all benefits unimpaired and made whole for loss of all monies since being taken out of service until reinstated in accordance with the Agreement.” (Id.). The Award further directed BNSF “to make the Award effective on or before 30 days following the date the Award was signed by the parties.” (Id.).

         In his “Petition to Confirm Arbitration Award” (“Petition”), Acosta seeks “damages awarded by the [Public Law Board] in Award No. 237 and that the Court find reinstatement an unfit remedy and award front pay as the more reasonable remedy for economic damages in the future.”[3] (ECF No. 1-1, p. 4). Further, Acosta seeks a back-pay award of “at least $254, 400.00.” (Id. at 3). Finally, Acosta seeks an award of front pay in the amount of $960, 000.00.[4]

         b. Procedural Background

         On May 20, 2019, Acosta filed his Petition in the 168th District Court in El Paso County, Texas. (ECF No. 1-1). On June 18, 2019, BNSF filed a Notice of Removal and removed the action to federal court based on federal question jurisdiction. (ECF No. 1).[5]

         The Motion to Dismiss and the attached “Declaration of Joe Heenan” (“Declaration”) were filed by BNSF on June 19, 2019.[6] (ECF Nos. 2, 2-1). Therein, BNSF requests the Court dismiss Acosta's Petition for lack of subject matter jurisdiction, or in the alternative, remand the matter to the Board for interpretation of the Award. (Id. at 15). On June 26, 2019, Acosta filed “Plaintiff's Response to Defendant's Motion to Dismiss” (“Response”) (ECF No. 3), as well as an Arbitration Award dated March 29, 2019 (ECF No. 3-1). Thereafter, BNSF filed “BNSF Railway's Reply Supporting the Motion to Dismiss” (“Reply”) on June 28, 2019. (ECF No. 4).

         II. LEGAL STANDARD

         A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(1) “allow[s] a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citing Fed.R.Civ.P. 12(b)(1)). “The party asserting jurisdiction ‘constantly bears the burden of proof that jurisdiction does in fact exist.'” Morris v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017) (quoting Ramming, 281 F.3d at 161). Further, “[w]hen ruling on the motion, the district court may rely on the complaint, undisputed facts in the record, and the court's resolution of disputed facts.” Id. Finally, “[t]he motion should be granted only if it appears certain the plaintiff cannot prove any set of facts that would entitle her to recovery.” Id.

         When making “a ‘factual attack' upon the court's subject matter jurisdiction over the lawsuit, the defendant submits affidavits, testimony, or other evidentiary materials.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). This “factual attack” obligates the plaintiff “to submit facts through some evidentiary method . . . .” Id. Further, the “factual attack” places on the plaintiff “the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.” Id. When considering a “factual attack” to its jurisdiction, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); see Three Expo Events, L.L.C. v. City of Dallas, Texas, 907 F.3d 333, 343 (5th Cir. 2018).

         III. ANALYSIS

         Acosta and BNSF are an employee and a carrier, respectively, within the meaning of the Railway Labor Act (“RLA”). (ECF No. 1-1, p. 5); 45 U.S.C. § 151. Pursuant to the RLA, when there is a dispute that cannot be resolved between the carrier and the employee, the matter is referred to the “appropriate division” of the National Railroad Adjustment Board (“NRAB”). 45 U.S.C. § 153(i). The NRAB and its divisions have the authority to enter an award resolving the dispute. 45 U.S.C. § 153(m). After an award is made, district courts have jurisdiction to enforce the NRAB's award. 45 U.S.C. § 153(p).

         The jurisdiction that the courts possess and the scope of the review permitted over the decisions of the NRAB is “among the narrowest known to the law.” Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 92 (1978) (per curiam); Diamond v. Terminal Ry. Ala. State Docks, 421 F.2d 228, 233 (5th Cir. 1970). The NRAB “is an expert body designed to settle ‘minor' disputes that arise from day to day in the railroad industry.” Diamond, 421 F.2d 228 at 233 (5th Cir. 1970).

         A “disagreement about the meaning of an award amounts to disagreement about the meaning of the underlying collective bargaining agreement. Under the RLA such disagreements are ‘minor disputes' that the parties and the Board must resolve without judicial aid or interference.” Bhd. ofMaint. of Way Emps. v. Burlington N. R. Co., 24 F.3d 937, 938 (7th Cir. 1994) (citing C ...


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