United States District Court, W.D. Washington, Seattle
ORDER DISMISSING CASE
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant BNSF Railway
Company's (“BNSF”) motion to dismiss (Dkt.
No. 6). Having thoroughly considered the parties'
briefing and the relevant record, the Court hereby GRANTS the
motion for the reasons explained herein.
Steven McArthur recently terminated his employment with BNSF.
(Dkt. No. 1-2 at 3.) His position involved travel to various
BNSF work locations, with compensation based, in part, on the
mileage he incurred. (Dkt. Nos. 6 at 1-3, 11 at 1-5.) In a
separate case, BNSF brought suit seeking to recoup amounts it
paid to McArthur and certain fellow employees, claiming they
fraudulently inflated their mileage. See BNSF Ry. Co. v.
McArthur, No. C15-0992, slip op. (W.D. Wash. Feb. 9,
2017). Judge Jones dismissed the case due to a lack of
subject matter jurisdiction because BNSF's state law
claims were preempted by the Railway Labor Act
(“RLA”), which imposes mandatory arbitration
provisions for such wage claims. See Id. at *2
(citing Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 252 (1994)).
instant suit, originally brought in King County Superior
Court, McArthur seeks $43, 119.55 in unpaid vacation and
leave time. (Dkt. No. 1-2 at 4.) He asserts BNSF
impermissibly failed to pay this amount following his
termination and is liable under Revised Code of Washington
§§ 49.48.010, 49.48.030, 49.52.070 for double
damages and attorney fees. (Id. at 3.) BNSF removed
to this Court based on diversity (Dkt. No. 1), and now moves
to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) (Dkt. No. 6). BNSF asserts that it
properly withheld payment pursuant to the collective
bargaining agreements (“CBA”) between BNSF and
McArthur's collective bargaining unit, and adjudication
of the matter outside of arbitration is preempted by the RLA.
(Id. at 2.) BNSF also asserts judicial estoppel on
the basis that McArthur, in the related proceeding before
Judge Jones, previously argued that mandatory arbitration
applies to all wage-related claims. (Id. at 22.)
12(b)(1) motion makes the same argument McArthur successfully
made to Judge Jones-that the pay dispute is subject to the
mandatory arbitration provisions of the RLA, 45 U.S.C. §
151a(5), thereby preempting this suit. (Dkt. No. 6 at 9-13);
see BNSF Ry. Co., No. C15-0992, slip op. at *2.
Therefore, this Court lacks subject matter jurisdiction to
adjudicate McArthur's claims.
Federal Rule of Civil Procedure 12(b)(1), a complaint must be
dismissed if the court lacks subject matter jurisdiction.
Jurisdiction is a threshold separation of powers issue, and
may not be deferred until trial. Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 94-95 (1998). A
motion to dismiss under Rule 12(b)(1) for lack of
jurisdiction may be facial or factual. See White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In reviewing a
factual attack, the Court may consider materials beyond the
complaint. McCarthy v. U.S., 850 F.2d 558, 560 (9th
Judge Jones described when dismissing BNSF's claims
against McArthur, under the RLA, arbitration is required to
the extent that interpretation of the CBA is necessary to
resolve claims between McArthur and BNSF. See BNSF Ry.
Co., No. C15-0992, slip op. at *2. Here, BNSF asserts
such interpretation is required to (a) determine the amount
of vacation pay it rightfully owes McArthur and (b) whether
BNSF may offset termination payments against amounts it
believes McArthur owes. (Dkt. No. 6 at 13.)
pay for a BNSF engineer is derivative of the total amount of
compensation received the prior year, which necessarily
includes claimed mileage. (Dkt. Nos. 6 at 4-5, 14 at 7.)
Mileage is based on the distance an engineer travelled by
rail or van, reported by the engineer using “tie-up
tickets, ” and reviewed and approved by BNSF's
payroll department. BNSF Ry. Co. v. McArthur, Case
No. C15-0992-RAJ, Dkt. No. 47 at 4 (W.D. Wash. 2016). Judge
Jones previously held that interpretation of the CBA is
required to determine “whether [McArthur and his fellow
employees] correctly calculated and reported their traveled
miles . . . how that translates to wages, and how the
employee and employer are to resolve disputes over
same.” BNSF Ry. Co., No. C15-0992, slip op. at
2. The Court will not disturb this holding as it now applies
to McArthur's claims.
counters that the disputed vacation pay here is different
than the disputed wages before Judge Jones because vacation
pay is “contractually vested” and, as such, does
not require interpretation of the CBA to determine the amount
owing. (Dkt. No. 11 at 2.) This is not a plausible assertion.
BNSF is only obligated to pay the amount McArthur rightfully
earned. (Dkt. No. 14 at 7.) This amount is yet to be
determined. What McArthur refers to as “contractually
vested” is the amount of vacation pay BNSF told
McArthur he had earned, before it concluded that he inflated
his compensation the prior year. (Dkt. Nos. 6 at 12-13, 14 at
7.) Of the $43, 119.55 McArthur claims owing as termination
payments in this case, for which he seeks double damages,
$32, 360.90 represents vacation pay. (Dkt. No. 1-2 at 4.)
This is the amount subject to CBA interpretation and
preemption. The remaining $10, 758.65 McArthur seeks is leave
pay, which is not impacted by mileage. (Dkt. Nos. 6 at
5-6, 11 at 3.) This is the only amount not requiring
interpretation of the CBA, and is insufficient to support
subject matter jurisdiction. See 28 U.S.C. §
interpretation of the CBA is required to determine whether
BNSF may offset the termination payments it owes McArthur
against the amount exceeding $100, 000 that it believes
McArthur owes. (Dkt. No. 6 at 4.) While the CBA does not
explicitly allow for such self-help, industry practice and
custom do. “[P]ractice, usage and custom is of
significance in interpreting” a CBA between railroad
employees and their employer. Consol. Rail Corp. v. Ry.
Lab. Executives' Ass'n, 491 U.S. 299, 311
(1989). BNSF persuasively cites a series of Public Law Board
(“PLB”) decisions supporting this practice. (Dkt.
Nos. 6 at 15-16, 9-1 Ex. 1-5.) Rather than cite countervailing
PLB decisions, McArthur attempts to distinguish these
decisions from the facts of this case. (Dkt. No. 11 at
13-15.) The Court does not find those distinctions
of the CBA is required to determine how much vacation pay
BNSF owes McArthur and whether BNSF may offset termination
payments against what it believes McArthur misappropriated.
On this basis, McArthur's claims before this Court are
preempted. This is sufficient for dismissal under Federal
Rule of Civil Procedure 12(b)(1), as the Court lacks subject
matter jurisdiction. The Court need not reach BNSF's
12(b)(6) or judicial estoppel arguments.
without leave to amend is improper unless it is clear upon
de novo review that the complaint could not be saved
by any amendment.” Krainski v. Nev. ex rel. Bd. of
Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 972
(9th Cir. 2010). Under these facts, no amendment would confer
subject matter ...