United States District Court, W.D. Texas, El Paso Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
T. BERTON, UNITED STATES MAGISTRATE JUDGE
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).
reasons set forth below, the Court
RECOMMENDS that Defendant BNSF Railway's
Motion to Dismiss be GRANTED.
March 29, 2019, Public Law Board 7048 (“Board”)
issued Award No. 237 (“Award”). (ECF No. 1-1, p.
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
“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.” (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.
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
Motion to Dismiss and the attached “Declaration of Joe
Heenan” (“Declaration”) were filed by BNSF
on June 19, 2019. (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).
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.
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).
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.
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
“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