     Case: 10-20856     Document: 00511533943         Page: 1     Date Filed: 07/08/2011




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

                                                                            FILED
                                                                            July 8, 2011

                                     No. 10-20856                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CRAIG P. BOWCOCK,

                                                  Plaintiff - Appellant
v.

CONTINENTAL AIRLINES, INC.,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-cv-2372


Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Craig Bowcock appeals the district court’s dismissal of his ERISA claims
against his former employer, Continental Airlines (“Continental”), for lack of
subject matter jurisdiction. We affirm.
I.      FACTS
        Bowcock worked for Continental as a pilot for 22 years. Pilots who fly for
Continental are subject to a Collective Bargaining Agreement (“CBA”). On June


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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24, 2008, Continental offered pilots early retirement under a plan called the
Early Retirement Window (“ERW”). Bowcock was eligible for early retirement
under the ERW. At this time, Bowcock also had an ongoing dispute with
Continental regarding an alleged miscalculation of his pension. Bowcock alleges
that Continental told him that he would have to abandon his pension claims
against the company in order to take early retirement under the ERW. Bowcock
alleges that he did not take early retirement under the plan because of
Continental’s representations. He instead retired a year later, on June 25, 2009.
         On July 10, 2010, Bowcock brought this suit in federal district court,
alleging that Continental intentionally mislead him into believing that he would
have to abandon his pension claims if he took early retirement. He claims that,
by doing so, Continental breached its fiduciary duty under ERISA to provide
“truthful and complete information in response to his question about an
employee benefit plan.”
         Continental moved for dismissal of Bowcock’s claim for lack of subject-
matter jurisdiction, arguing that the Railroad Labor Act (“RLA”), 45 U.S.C.
§§ 151-88, vested exclusive jurisdiction over “minor disputes” brought by airline
employees such as Bowcock with regional adjustment boards. The district court
granted Continental’s motion, holding that Bowcock’s fiduciary duty claim was
a “minor dispute” involving the interpretation of a CBA and that Bowcock was
an “employee” under the RLA, notwithstanding the fact that he had retired
before filing his claim. The court concluded that Bowcock’s claim was subject to
mandatory arbitration under the RLA and that it therefore lacked subject-
matter jurisdiction. Bowcock appeals.
II.      DISCUSSION
         The sole issue on appeal before this court is whether Bowcock is an
“employee” under the RLA even though he was retired when he filed his federal
lawsuit.     We review a district court’s rulings on questions of statutory

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                                      No. 10-20856

interpretations de novo. St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F.3d
533, 538 (5th Cir. 2009).
      “Concerned that labor disputes would lead to strikes bringing railroads to
a halt, Congress enacted the . . . RLA . . . in 1926 to promote peaceful and
efficient resolution of those disputes.” Union Pac. R.R. Co. v. Bhd. of Locomotive
Eng’rs & Trainmen Gen. Comm. of Adjustment, 130 S. Ct. 584, 591 (2009). The
RLA, as amended in 1934, requires railroad carriers and their union employees
involved in “minor” labor disputes that cannot be resolved under CBA-provided
grievance procedures to participate in mandatory arbitration before the National
Railroad Adjustment Board (“NRAB”). Id.; 45 U.S.C. § 153(i). An “employee” is
a “person in the service of a carrier (subject to its continuing authority to
supervise and direct the manner of rendition of his service) who performs any
work defined as that of an employee . . . .” 45 U.S.C. § 151. A dispute is “minor”
if “an existing agreement controls the controversy, i.e., the interpretation or
application of a particular provision to a particular situation.” Int’l Ass’n of
Machinists & Aerospace Workers, Airline Dist. 146 v. Frontier Airlines, Inc., 664
F.2d 538, 540 (5th Cir. 1981); see Hawaiian Airlines v. Norris, 512 U.S. 246, 255-
56 (1994).
      “In 1936, Congress extended the Railway Labor Act to cover the then
small-but-growing air transportation industry.” Int’l Ass’n of Machinists, AFL-
CIO v. Cent. Airlines, Inc., 372 U.S. 682, 685 (1963). The 1936 amendment,
codified at 45 U.S.C. §§ 181-88, made all of the provisions of the RLA applicable
to the airlines with the exception of the section requiring mandatory arbitration
before the NRAB.1 Id. Instead, Congress required air carriers and unions to


      1
        45 U.S.C. § 181 states:
      All of the provisions of subchapter I of this chapter except section 153 of this
      title are extended to and shall cover every common carrier by air engaged in
      interstate or foreign commerce, and every carrier by air transporting mail for
      or under contract with the United States Government, and every air pilot or

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create regional adjustment boards. Id. at 686; 45 U.S.C. § 184. Air carriers and
their employees are required under the RLA to submit minor disputes that
cannot be resolved under CBA-provided grievance procedures to these regional
adjustment boards. Id. The mandatory arbitration language in § 184 is nearly
identical to the mandatory arbitration language in § 153.
      Central to our discussion is the Supreme Court’s decision in Pennsylvania
Railroad Co. v. Day, 360 U.S. 548 (1959). In Day, the Supreme Court considered
whether the NRAB had exclusive jurisdiction over a retired locomotive
engineer’s claim for additional pay. 360 U.S. at 551. The Court held that it did,
stating that “[a]ll the considerations of legislative meaning and policy which
have compelled the conclusion that an active employee must submit his claims
to the Board, and may not resort to the courts in the first instance, are the same
when the employee has retired and seeks compensation for work performed
while he remained on active service.” Id. at 552. The district court applied Day
to Bowcock, holding that “retired employees whose claims arose while they were
‘in the service of a carrier’—whether it was an air carrier or a rail carrier—must
arbitrate the claims pursuant to the requirements of the RLA.”
      Bowcock acknowledges the Supreme Court’s holding in Day but raises
three arguments as to why the district court erred in holding that he is an
“employee” under the RLA. His arguments fail to persuade. Bowcock first
argues that Day is distinguishable because it involved arbitration with a rail
carrier under § 153 and not arbitration with an air carrier under § 184. But
§ 181 explicitly extended “[a]ll of the provisions of [the RLA] except section 153
. . . to . . . every common carrier by air . . . .” 45 U.S.C. § 181. This includes
§ 151, which contains the definition of “employee” interpreted in Day. 360 U.S.


      other person who performs any work as an employee or subordinate official of
      such carrier or carriers, subject to its or their continuing authority to supervise
      and direct the manner of rendition of his service.

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at 551. Section 181 therefore plainly extends the definition of “employee” used
in the mandatory arbitration provisions of § 151 to the nearly identical
mandatory arbitration provisions in § 184. It would defy logic to have the same
statutory definition of “employee” mean two different things based on whether
the employer was a rail or air carrier. The fact that Bowcock worked for
Continental and not a rail carrier is not a meaningful distinction.
      Bowcock next argues that Day is distinguishable because the plaintiff in
Day filed his federal lawsuit before retiring, whereas Bowcock filed his claim
after retiring.   This is also not a meaningful distinction.         Day explicitly
concluded that “an active employee must submit his claims to the Board, and
may not resort to the courts in the first instance,” when “the employee has
retired and seeks compensation for work performed while he remained on active
service.” Id. at 552. Otherwise, “[r]etired employees would be allowed to bypass
the Board specially constituted for hearing railroad disputes whenever they
deemed it advantageous to do so, whereas all other employees would be required
to present their claims to the Board.” Id. at 553. Both the Court’s holding and
its reasoning apply with equal force regardless of whether the employee retires
before or after he files his federal lawsuit, so long as he “seeks compensation for
work performed while he remained in active service.” See Air Line Pilots Ass’n,
Int’l v. Alaska Airlines, Inc., 735 F.2d 328, 329 (9th Cir. 1984).
      Bowcock finally argues that this court should not apply Day to airline
retirees because “Day’s approach to statutory construction is outdated.” In
essence, Bowcock argues that Day is wrongly decided and would be decided
differently by today’s Supreme Court. We are a strict stare decisis court. FDIC
v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998).            The Supreme Court has
unequivocally stated that “[i]f a precedent of this Court has direct application in
a case, yet appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to this

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Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Bowcock’s assertion
that “today’s Supreme Court” would not adopt Day’s reasoning is irrelevant.
       We therefore hold that, under Pennsylvania v. Day, retired employees of
air carriers are “employees” subject to the mandatory arbitration provisions of
the RLA. In doing so, we are in accord with all other courts of appeal that have
addressed this issue. Bloemer v. Nw. Airlines, Inc., 401 F.3d 935, 939 (8th Cir.
2005); Air Line Pilots Ass’n, 735 F.2d at 328.       Because Bowcock was an
“employee” subject to the RLA’s mandatory arbitration provisions, the district
court correctly dismissed his case for lack of subject matter jurisdiction.
III.   CONCLUSION
       For the foregoing reasons, we affirm the district court’s dismissal of
Bowcock’s complaint.




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