                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 19 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED TRANSPORTATION UNION                     No.    15-35818
and RICHARD D. KITE,
                                                D.C. No. 3:10-cv-05808-RBL
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted December 7, 2017
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

      In this comeback case, Plaintiffs-Appellants United Transportation Union and

Richard Kite (collectively, UTU) appeal the judgment in BNSF Railway Company’s

(BNSF’s) favor following a stipulated bench trial, which found that UTU failed to




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
prove by clear and convincing evidence the presence of corruption during a

mandatory arbitration process relating to BNSF’s discharge of Kite. We affirm.

      The district court adhered to the previous panel’s remand instructions. The

previous panel’s instructions were to sort through the contested facts to determine if

corruption occurred by clear and convincing evidence, and if it did, what remedy

might be appropriate. United Transp. Union v. BNSF Ry. Co., 710 F.3d 915, 934–

35 (9th Cir. 2013). The Findings of Fact and Conclusions of Law adhered to these

instructions. Although UTU argues that the district court examined the underlying

merits of the case—rather than any corruption—there is no indication the case was

decided on anything other than whether the arbitration process was tainted by

corruption. Because this was “the determination sought by remanding the matter[,]

[t]he district court did not exceed its jurisdiction on remand.” L.A. Police Protective

League v. Gates, 995 F.2d 1469, 1477 (9th Cir. 1993).

      Nor was the credibility determination regarding Jacalyn Zimmerman, to

which we must give special deference, clearly erroneous. See United States v.

Haswood, 350 F.3d 1024, 1028 (9th Cir. 2003). “[A] factfinder may . . . credit one

witness’s testimony over another’s if both have related coherent and facially

plausible stories that are not contradicted by extrinsic evidence.” Rodriguez v.

Holder, 683 F.3d 1164, 1176 (9th Cir. 2012).




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      Here, UTU argues that Zimmerman made inconsistent and self-serving

statements that severely undermined her credibility. The record, however, does not

contradict Zimmerman’s statement that her draft award was written under a belief

of a pending settlement.      Further, the district court considered the evidence

purportedly indicating Zimmerman’s testimony was self-serving. Finally, while

UTU argues certain “key evidence” should have been addressed and that it should

have been allowed to call BNSF’s counsel as a trial witness, UTU either fails to

elaborate why the district court was obligated to address this evidence or how it is

distinct from the evidence already in the record.

      Additionally, the finding that Roger Boldra’s statements were not the cause

of Zimmerman’s decision to recuse herself was not clearly erroneous. We review

the district court’s factual findings for clear error. Albino v. Baca, 747 F.3d 1162,

1171 (9th Cir. 2014) (en banc). Under this standard, “[i]f the district court’s account

of the evidence is plausible in light of the record viewed in its entirety, the court of

appeals may not reverse it.” Anderson v. Bessemer City, 470 U.S. 564, 573–74

(1985).   Here, the district court resolved competing inferences drawn from

Zimmerman and Jay Schollmeyer’s testimonies in making its causation finding. The

district court did not clearly err in finding Zimmerman more credible than

Schollmeyer and basing its causation finding on Zimmerman’s testimony.




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      Finally, the district judge did not plainly err in failing to sua sponte recuse

himself for bias. Federal law requires a “federal judge to ‘disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.’” Liteky v.

United States, 510 U.S. 540, 541 (1994) (quoting 28 U.S.C. § 455(a)). Recusal is

necessary when the judge’s opinions “display a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Id. at 555. Where, as here,

a party fails to file a formal motion for recusal before the district court, the review is

for plain error. United States v. Holland, 519 F.3d 909, 911 n.1 (9th Cir. 2008).

Although UTU cites to the district judge’s comments that purportedly show bias

against the consumption of any alcohol by a railroad worker and disagreement with

the previous panel’s remand instructions, these comments do not rise to the very

high standard set forth in Liteky.

      AFFIRMED.




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