     Case: 11-11098      Document: 00512881005         Page: 1    Date Filed: 12/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                           December 23, 2014
                                      No. 11-11098
                                                                             Lyle W. Cayce
                                                                                  Clerk
GAVIN MACKENZIE, individually and on behalf of those similarly situated;
MARK BURNETT, individually and on behalf of those similarly situated,

               Plaintiffs - Appellants

v.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL; ALLIED PILOTS
ASSOCIATION; AMERICAN AIRLINES, INCORPORATED; AMERICAN
EAGLE AIRLINES, INCORPORATED,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CV-2043


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
PER CURIAM:*
       Plaintiffs-Appellants Gavin Mackenzie and Mark Burnett (collectively,
Appellants) brought this proposed class action pro se under the Railway Labor
Act, 45 U.S.C. § 151 et seq., seeking declaratory relief from an arbitrator’s


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 11-11098
remedy award. Appellants claimed that the arbitrator’s remedy opinion and
award should be vacated on the ground that the arbitrator exceeded the scope
of his jurisdiction in fashioning the award. Defendants-Appellees American
Airlines, Inc., American Eagle Airlines, Inc., and Air Line Pilots Association
(collectively, Appellees) 1 filed a motion to dismiss. The district court granted
the motion, concluding that the arbitrator did not exceed the scope of his
jurisdiction in deciding the remedial issue before him. Because we hold that
Appellants lack standing to challenge the arbitrator’s award, the appeal is
DISMISSED.
                                           I.
      This case arises out of a complex, four-party collective bargaining
agreement.     The four parties to the agreement were American Airlines
(American); American Eagle Airlines (Eagle); Allied Pilots Association (APA),
the union representing American’s pilots; and Air Line Pilots Association
(ALPA), the union representing Eagle’s pilots. Appellants are individual pilots
for Defendant-Appellee Eagle. As such, they were represented in contract and
employment matters with the airlines by their pilots’ union, ALPA.
      In 1997, American pilots called a strike against American, prompting
President Clinton to invoke provisions of the Railway Labor Act (RLA) that
required the affected parties to resolve their issues through mediation. The
negotiations between representatives from each party resulted in a
supplemental agreement known as Letter 3/Supplement W (Letter 3). Under
Letter 3, Eagle pilots could move up, or flow through, to positions in American
as they came available. Further, American pilots could move down to Eagle in
the event that they were furloughed. Letter 3 provided procedures by which


      1 Though Allied Pilots Association was a named defendant, it did not join the other
Defendants-Appellees in their motion to dismiss and it has not presented any argument on
appeal.
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                                  No. 11-11098
disputes arising under its terms were to be resolved. American, Eagle, APA,
and ALPA were specifically named as parties to these dispute resolution
procedures.   The parties agreed to submit any grievance concerning the
interpretation or application of Letter 3 to arbitration.
      In 2003, a dispute arose as to whether Trans World Airline (TWA) pilots,
recently acquired through a merger between American and TWA, were “new
hires” under Letter 3. ALPA filed a grievance and the dispute was submitted
to an arbitrator, who concluded that the TWA pilots were new hires under the
terms of Letter 3. The arbitrator declined to resolve the issue of whether Eagle
pilots were entitled to positions in training classes at American instead of the
TWA pilots designated as new hires, concluding that he lacked jurisdiction to
provide the appropriate answer.
      In 2008, ALPA filed a grievance to resolve this issue, which was
submitted to arbitration proceedings before Arbitrator Nicolau. Nicolau found
in favor of the Eagle pilots, concluding that they were entitled to the training
classes at American. He remanded the issue of the appropriate remedy to the
parties, but retained jurisdiction in the event that the parties could not agree
on the proper remedy.       When the parties were unable to agree on the
appropriate remedy, they submitted the issue to Nicolau to resolve.
      After considering the parties’ arguments, prior arbitration awards,
witness testimony, the evidence presented, and the competing equities,
Nicolau issued a remedy opinion and award.            The award provided the
following: (1) 286 Eagle pilots were required to irrevocably elect whether to
move up to American by May 24, 2010; (2) American was required to recall
furloughed TWA pilots after the first 35 Eagle pilots moved up to American
but before the remaining 251 Eagle pilots moved up; and (3) the affected




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                                     No. 11-11098
parties were required to enter into a preferential hiring agreement to cover the
824 Eagle pilots without American seniority numbers. 2
       Appellants filed suit against Appellees in district court seeking to set
aside Nicolau’s remedy opinion and award. Appellees filed a motion to dismiss,
which the district court granted. After conducting its review of the arbitrator’s
decision, the district court held that Arbitrator Nicolau acted within the scope
of his jurisdiction in fashioning the proper remedy.
       Appellants timely appealed. 3 On appeal, Appellants seek vacatur of the
arbitrator’s remedy award, arguing: (1) the arbitrator exceeded his jurisdiction
in making the award, or alternatively (2) the arbitrator improperly considered
off-the-record evidence in violation of due process.
                                            II.
       Although neither party raised the issue of Appellants’ standing to bring
this appeal, we may raise the issue sua sponte. See S.E.C. v. Forex Asset Mgmt.,
LLC, 242 F.3d 325, 328 (5th Cir. 2001). If Appellants lack standing to bring
this appeal, we lack the jurisdiction to decide the merits of this case. In re
Weaver, 632 F.2d 461, 462 n.6 (5th Cir. 1980).
       The court raised the issue of Appellants’ standing during oral argument.
In response to the court’s inquiry on the issue of standing, Appellees asserted
that our decision in Mitchell v. Cont’l Airlines, Inc., 481 F.3d 225 (5th Cir.),
cert. denied 552 U.S. 821 (2007), deprived Appellants of standing as a matter
of law. We agree.




      At the time of Nicolau’s ruling, there were 1351 captains: 527 had American seniority
       2

numbers and 824 did not.

       The Appellants’ appeal was stayed after American entered into bankruptcy in
       3

November 2011.

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                                        No. 11-11098
       In Mitchell, individual flight attendants brought an action against their
airline and union, seeking vacatur of an arbitral award. Id. at 230. There,
relying upon precedent in cases governed by similar federal labor statutes, the
court held:
       [W]hen a CBA formed pursuant to the RLA establishes a
       mandatory, binding grievance procedure and vests the union with
       the exclusive right to pursue claims on behalf of aggrieved
       employees, an aggrieved employee whose employment is governed
       by the CBA lacks standing to attack the results of the grievance
       process in court—the sole exception being the authorization of an
       aggrieved employee to bring an unfair representation claim.

Id. at 233. The court reasoned that such a holding was “necessary to effectuate
the purposes behind federal labor statutes, which require that the interests of
particular individuals be subordinated to the interests of the group at the
contract-negotiation stage and beyond.”                Id. at 232.       Consequently, “an
aggrieved employee will generally lack standing to bring an RLA action.” Id.
at 233 n.24.
       Letter 3 establishes a mandatory, binding dispute resolution procedure.
Additionally, Letter 3 governs Appellants’ employment at Eagle. Finally, by
failing to pursue a duty of fair representation claim, Appellants cannot avail
themselves of the “sole exception” prescribed by Mitchell. Appellants attempt
to distinguish Mitchell by asserting that Letter 3 does not vest the union with
the exclusive right to pursue claims on their behalf. 4 We disagree. Letter 3



       4 Appellants also argued during oral argument that they have standing pursuant to
the plain language of 45 U.S.C. § 153 First(q), which provides that “[i]f any employee or group
of employees . . . is aggrieved by any of the terms of an award[,] . . . then such employee or
group of employees . . . may file in any United States district court . . . a petition for review
of” the award. Appellants’ argument finds support in McQuestion v. N.J. Transit Rail
Operations, 892 F.2d 352, 354–55 (3d Cir. 1990), which held that the plain language of § 153
First(q) provides individual employees with uniquely individual grievances standing to seek
judicial review under the RLA. Nevertheless, Appellants’ argument is unavailing. In
Mitchell, we distinguished McQuestion, determining that it may support providing standing
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specifically names American, Eagle, APA, and ALPA as the parties to the
dispute resolution procedures. Moreover, Appellants state in their complaint
that ALPA is the “certified collective bargaining agent” and “representative” of
Eagle pilots. We therefore hold that Appellants lack standing to challenge the
arbitration award. See Mitchell, 481 F.3d at 233. Accordingly, we do not reach
the merits of Appellants’ claims.
                                           III.
      For the reasons herein stated, the appeal is DISMISSED.




to individual employees with “uniquely individual claims,” but that its reasoning did not
support standing where, as here, the employees’ union pursued arbitration on behalf of all
its members. Mitchell, 481 F.3d at 233 n.24.
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