     Case: 10-10771 Document: 00511482915 Page: 1 Date Filed: 05/19/2011




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

                                                 FILED
                                                                            May 19, 2011

                                       No. 10-10771                         Lyle W. Cayce
                                                                                 Clerk

BNSF RAILWAY COMPANY

                                                   Plaintiff-Appellee
v.

AMERICAN TRAIN DISPATCHERS ASSOCIATION

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas
                          Civil Action No. 4:09-cv-00702-A


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant the American Train Dispatchers’ Association
(“ATDA”) appeals the district court’s remand order of July 6, 2010.                       The
threshold issue is whether this order is final and thus reviewable, pursuant to
28 U.S.C. § 1291.         Because administrative remand orders are generally
considered interlocutory and because we agree, as did the parties at oral
argument, that the district court’s order remains reviewable on any later appeal,
the district court’s remand order falls short of the § 1291 finality requirement.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-10771 Document: 00511482915 Page: 2 Date Filed: 05/19/2011



                                  No. 10-10771

This court lacks jurisdiction to review this case, and ATDA’s appeal shall be
dismissed.
      ATDA is the collective bargaining representative for the train dispatchers
of the BNSF Railway Company (“BNSF”). Both ATDA and BNSF are parties to
several collective bargaining agreements (collectively “the CBA”) governing the
terms and conditions of employment at BNSF. After unsuccessful efforts to
resolve a dispute, on March 2, 2005, the dispatchers represented by ATDA
walked out on BNSF’s Fort Worth dispatching center. Because of the surprise
strike, BNSF had to shut down its entire rail transportation network for several
hours, which allegedly resulted in approximately $300,000 in damages to BNSF.
      On March 29, 2005, BNSF filed a grievance against ATDA, claiming that
ATDA’s surprise strike violated the CBA. After the parties failed to resolve the
dispute through the requisite on-property handling, BNSF progressed the
dispute to the Third Division of the National Railroad Adjustment Board. The
parties then agreed to submit their dispute to a special board of adjustment,
Public Law Board No. 7290 (“the Board”). On September 18, 2009, the Board
issued its Award, concluding that BNSF could not seek damages for the strike
because neither the Railway Labor Act (“RLA”) nor the CBA provided for it.
BNSF sought review in the district court. The parties filed cross-motions for
summary judgment. The district court granted BNSF’s motion and denied
ATDA’s motion, holding that the Board’s Award was based on nine incorrect
conclusions.   Specifically, the district court concluded that, contrary to the
Board’s Award, BNSF could seek damages under the RLA and the CBA. The
district court vacated the arbitral decision and remanded the matter to the same
Board for further proceedings. The district court ordered that, consistent with
its opinion, “if a breach of contract is shown, as a matter of law BNSF is entitled
to a remedy for such breach.” ATDA sought review in this court.



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                                  No. 10-10771

      This court’s jurisdiction is limited to appeals from “final decisions of the
district courts.” 28 U.S.C. § 1291. Section 3 First (q) of the RLA explicitly
incorporates the finality requirement of § 1291. See 45 U.S.C. § 153, First (q)
(“The judgment of the [district] court shall be subject to review as provided in
section[] 1291.”). A decision is final if it “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.” Catlin v. United
States, 324 U.S. 229, 233 (1945). Under the collateral order doctrine, a decision
can be treated as final under § 1291, even though it does not terminate the
litigation, if three conditions are met. See Digital Equip. Corp. v. Desktop Direct,
511 U.S. 863, 867 (1994).     The order must “‘[1] conclusively determine the
disputed question, [2] resolve an important issue completely separate from the
merits of the action, and [3] be effectively unreviewable on appeal from a final
judgment.’” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 144 (1993) (alteration in original) (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978)).          “The requirement that the order be
effectively unreviewable on final appeal means that the rights asserted would
be lost.” Am. Jur. 2d Appellate Review § 105.
      Administrative remands generally are not final orders under § 1291. See
Mem’l Hosp. Sys. v. Heckler, 769 F.2d 1043, 1044 (5th Cir. 1985) (“An order of
the district court that remands the proceedings to the administrative agency for
further evidence or findings, in an action for judicial review of an earlier
administrative decision, is ordinarily regarded as not an appealable final
judgment.”). “[O]rders directing remands to Railway Labor boards to consider
additional evidence have been considered nonfinal.” United Steelworkers of Am.
Local 1913 v. Union R.R. Co. (“Local 1913”), 648 F.2d 905, 909 (3d Cir. 1981); see
also Transp.-Commc’n Div.-Bhd. of Ry., Airline & S.S. Clerks v. St. Louis-S.F.
Ry. Co., 419 F.2d 933, 935 (8th Cir. 1969) (holding a remand of a dispute to
NRAB to consider additional contracts was not an appealable order). In this

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                                    No. 10-10771

order the district court remanded the case for further proceedings, not for a new
arbitration. ATDA’s reliance on the distinction between remands based on
conclusions of law and remands to consider further evidence is unavailing. The
general rule that remand orders are nonfinal thus applies to the instant remand
order.
         Moreover, the order does not satisfy the conditions of the collateral order
doctrine. The attorney for BNSF agreed at oral argument that the July 6, 2010,
order would remain reviewable on appeal. The issue of whether the Board
exceeded its jurisdiction, while not reviewable in the instant proceedings because
of the remand, is thus still subject to future review by this court. As a result of
this concession, ATDA will not lose the benefit of the extremely deferential
standard of review federal courts apply to RLA labor arbitration decisions and
to arbitrators’ remedial actions on appeal. See United Paperworkers Int’l Union
v. Misco, Inc., 484 U.S. 29, 38 (1987) (“[A]s long as the arbitrator is even
arguably construing or applying the contract and acting within the scope of his
authority, that a court is convinced he committed serious error does not suffice
to overturn his decision.”). To find otherwise would render BNSF’s concession
practically meaningless. Accordingly, failure to review the appeal now would not
cause ATDA to lose any asserted right. If ATDA is dissatisfied with the outcome
of the remand proceedings, it is free to argue in the future that the district court
erred by remanding the case to the Board. See Bhd. of Locomotive Eng’rs &
Trainmen v. Union R.R. Co., 391 F. App’x 182, 185 (3d Cir. 2010) (deeming
remand order nonfinal because remands are generally nonfinal, this one did not
fit within any exception, and no issue would be unreviewable on later appeal).
         The appeal is DISMISSED for want of jurisdiction.




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