                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3951
GEORGE MITCHELL,
                                                 Plaintiff-Appellant,
                                 v.


UNION PACIFIC RAILROAD COMPANY and
NATIONAL RAILROAD ADJUSTMENT BOARD,
                                              Defendants-Appellees.

                         ____________
          Appeal from the United States District Court for
         the Northern District of Illinois, Eastern Division.
             No. 03 C 4586—Marvin E. Aspen, Judge.
                         ____________
      SUBMITTED APRIL 18, 2005—DECIDED MAY 10, 2005
                         ____________




  Before BAUER, POSNER and RIPPLE, Circuit Judges.
  PER CURIAM. Appellant George Mitchell has filed a petition
for a writ of mandamus, which we have interpreted as a
motion for summary reversal. In response, the National
Railroad Adjustment Board (“NRAB”) filed a motion to
supplement the appellate record and requested that it be
dismissed from the appeal. For the reasons that follow, we
2                                                  No. 03-3951

dismiss as moot Mr. Mitchell’s motion for summary reversal
and the NRAB’s motion to supplement, vacate the district
court’s judgment and remand for further proceedings.
  Mr. Mitchell filed a grievance with his employer, Union
Pacific Railroad Company. When negotiations failed,
Mr. Mitchell submitted seven questions to the NRAB, Third
Division. The NRAB deadlocked on whether to grant
Mr. Mitchell relief, and brought in a referee to sit as a mem-
ber of their group, pursuant to 45 U.S.C. § 153(l). After a hear-
ing, the NRAB declined to consider the questions presented
by Mr. Mitchell because he had not raised those questions
in earlier negotiations with his employer and dismissed his
claims on that ground.
  Mr. Mitchell then appealed the NRAB’s decision to the
district court pursuant to 45 U.S.C. § 153(q), which provides
federal jurisdiction for claims by employees who are harmed
by the failure of the NRAB to make an award in any dispute
or by the terms of any award. Mr. Mitchell argued that the
NRAB violated 45 U.S.C. § 147 Third(c) by considering
matters beyond the questions he presented. With his com-
plaint, he also submitted a copy of the two NRAB decisions.
  Upon reviewing Mr. Mitchell’s motion to proceed in
forma pauperis, the district court evaluated Mr. Mitchell’s
complaint to determine if his claims had merit. In so doing,
the district court determined that it did not have jurisdiction
to hear the case because Mr. Mitchell had not exhausted all
of the requisite procedures in the Railway Labor Act, in-
cluding the requirement that he negotiate with his employer
before submitting questions to the NRAB. The district court
dismissed the case.
   Mr. Mitchell then appealed the district court’s dismissal.
Mr. Mitchell failed to file a timely opening brief, but then
filed a “Petition for Writ of Mandamus.” In his petition he
No. 03-3951                                                    3

asked this court to set aside the NRAB awards because the
NRAB had failed to file the arbitration records in this court
or the district court, and requested that the NRAB file the
record of its proceedings in this court so that he could
complete his brief. We construed Mr.Mitchell’s petition as
a motion for summary reversal. The NRAB responded and
stated that, on February 7, 2005, while the case was on ap-
peal, the National Mediation Board, on behalf of the NRAB,
filed the requested records with the clerk of the district
court. The NRAB now requests that we allow the record on
appeal to be supplemented with the records. The NRAB also
argues that it is not a proper party to this litigation and
requests that it be dismissed from the appeal.
   The NRAB has moved to dismiss the appeal, arguing that
it is not a proper party to these proceedings; it argues that
the litigation should be between the parties to the arbitration
and not the adjudicator of the proceedings. We have not yet
addressed the issue of whether the NRAB is a proper party
to a proceeding under 45 U.S.C. § 153(q). The Fourth Circuit
summarized the positions of the courts that had addressed
this issue as follows:
    The courts that have considered the issue have uni-
    formly held that the NRAB and its components are not
    proper parties to an action challenging an award made
    under § 153. See, e.g., Skidmore v. Consolidated Rail Corp.,
    619 F.2d 157 (2d Cir. 1979); Sheehan v. Union Pac. R.R.,
    576 F.2d 854 (10th Cir. 1978); Fong v. American Airlines,
    431 F. Supp. 1340 (N.D. Cal. 1977); System Federation
    No. 30 v. Braidwood, 284 F. Supp. 607 (N. D. Ill. 1968).
Radin v. United States, 699 F.2d 681, 686 (4th Cir. 1983). The
Board, as “[a]n arbitration tribunal . . . is not properly a par-
ty to an action challenging the validity of its decision.” Id.
4                                                      No. 03-3951

  Prior to the 1966 amendments to the Railway Labor Act,
the NRAB was considered a necessary party because, with-
out it, the court would not have a reviewable record or the
power to review an award without the record. Id. at 686 n.11
(citing as an example, Morrissette v. Chicago, Burlington and
Quincy R.R., 299 F.2d 502 (7th Cir. 1961), in which this court
declined to review an NRAB award because the NRAB was
not party to the lawsuit). But since the 1966 amendments,
the NRAB has not been an appropriate party to any actions
                                        1
to review an award of the NRAB. Id. We join our sister
circuits in holding that the NRAB is not a proper party to a
proceeding under 45 U.S.C. § 153(q). Accordingly, we direct
the district court to dismiss the NRAB from the case.
Because the case was dismissed at a preliminary stage, it
appears that the remaining defendant, Union Pacific
Railroad Company, was not served in the district court. If it
deems appropriate, the district court might permit Mr.
Mitchell to serve Union Pacific upon remand.
  When Mr. Mitchell filed his petition for review of the
agency’s decision in the district court, the NRAB was re-
quired to “file in the court the record of the proceedings on
which it based its action.” 45 U.S.C. § 153(q). In this case, the
arbitration records should have been filed in the district
court but were not. Thus, the district court did not have the
opportunity to review the arbitration record before it deter-
mined that Mr. Mitchell had not exhausted his administra-
tive remedies. In order to allow the district court this


1
  The NRAB also can be distinguished from the Federal Trade
Commission, which is a proper respondent to a petition for re-
view. See Skidmore v. Consol. Rail Corp., 619 F.2d 157 (2d Cir. 1979).
While the FTC operates as a quasi-legislative body, and maintains
an interest in its decisions, the NRAB functions solely as an
impartial adjudicatory tribunal. Id.
No. 03-3951                                                      5

opportunity, we remand this case to the district court for
                                 2
consideration of the NRAB record.
  For the reasons stated above, we dismiss as moot
Mr. Mitchell’s motion for summary reversal and the NRAB’s
motion to supplement the appellate record, vacate the district
court’s judgment and remand for further proceedings con-
sistent with this opinion.
        DISMISSED in part, VACATED and REMANDED in part


A true Copy:
        Teste:

                             _____________________________
                              Clerk of the United States Court of
                                Appeals for the Seventh Circuit




2
  We construed Mr. Mitchell’s petition for a writ of mandamus
as a motion for summary reversal; he argued that the arbitration
awards should be set aside because the NRAB failed to file the
arbitration records in this court or the district court. Because we
are remanding for consideration of the NRAB record, we dismiss
as moot Mr. Mitchell’s motion for summary reversal. We also
dismiss as moot the NRAB’s motion to supplement the appellate
record.


                      USCA-02-C-0072—5-10-05
