                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-1332


FRATERNAL ORDER    OF   POLICE      METRO   TRANSIT    POLICE     LABOR
COMMITTEE, INC.,

                Plaintiff - Appellee,

           v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cv-01387-LMB-JFA)


Argued:   January 29, 2015                     Decided:      March 10, 2015


Before TRAXLER,    Chief   Judge,    and    NIEMEYER   and    MOTZ,   Circuit
Judges.


Reversed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Traxler and Judge Niemeyer joined.


ARGUED: Gerard J. Stief, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, D.C., for Appellant.         Jonathan G.
Axelrod, BEINS, AXELROD, P.C., Washington, D.C., for Appellee.
ON BRIEF: Robert G. Ames, Maggie T. Grace, VENABLE LLP,
Washington, D.C.; Kathryn Pett, General Counsel, Janice L. Cole,
Chief Counsel, Metro Transit Police, WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY, Washington, D.C., for Appellant. Justin
P. Keating,   BEINS,   AXELROD,       P.C.,   Washington,   D.C.,   for
Appellee.




                                  2
DIANA GRIBBON MOTZ, Circuit Judge:

      This case involves a labor dispute between the Washington

Metropolitan Area Transit Authority (WMATA) and the Fraternal

Order of Police (FOP).         The dispute arose after WMATA fired two

of its police officers, reinstated them pursuant to arbitration

awards, and then fired the officers a second time after Maryland

declined to recertify them as police officers in that state.

The district court granted the FOP’s motion for summary judgment

and   ordered    WMATA   to    reinstate      the    two   officers.          For   the

reasons that follow, we reverse.



                                         I.

      WMATA,     an   interstate    agency,      operates     the    Metrorail      and

Metrobus    systems     in   Washington,      D.C.,    Maryland,      and     Virginia

under a compact agreed to by those jurisdictions.                       The compact

authorizes WMATA to employ a police force, the Metro Transit

Police Department (MTPD), whose officers enforce the laws of the

compact    jurisdictions      on   the   Metro      system.     The     FOP    is   the

bargaining agent for MTPD officers and therefore a party to the

officers’    collective       bargaining      agreement       with    WMATA.        The

agreement permits WMATA to discipline officers only for “just

cause”     and    outlines     a   four-step        grievance        procedure      for

resolving labor disputes, culminating in arbitration.



                                         3
        In 2011, WMATA fired two MTPD officers, Mark Spencer and

Sherman Benton (collectively “the Officers”).                        WMATA discharged

Officer    Spencer      for     allegedly      striking    a    passenger          with   his

baton     and     for     being        untruthful       during        the     subsequent

investigation.          WMATA fired Officer Benton in the wake of an

alleged physical altercation with a female companion in Atlantic

City; WMATA determined that he had made false statements during

the investigation of the incident and had engaged in conduct

that discredited himself and the MTPD.

        In response to these terminations, the FOP filed grievances

on behalf of the Officers.              Both cases reached arbitration, and,

in 2012, the Board of Arbitration overturned both discharges.

Although the Board found that WMATA had legitimate grounds for

disciplining      the    Officers,       the    Board     concluded         that    lengthy

suspension, not termination, was the appropriate remedy.                                  It

ordered WMATA to reinstate the Officers after their respective

suspensions.

        As a result of their initial terminations, however, the

Officers    had    lost        their   certifications          to    serve    as     police

officers in Maryland.            Under Maryland law, a police officer must

be certified in order to exercise law enforcement powers within

the state.        Md. Code Regs. § 12.04.01.01(B)(4) (2015).                          If an

officer      loses       his      certification,          he        must     apply        for

recertification         from    the    Maryland    Police       Training      Commission

                                            4
(“Maryland Commission”).                  Id. § 12.04.01.07(A).               Moreover, the

WMATA Compact mandates that MTPD officers “shall have the same

powers . . . and shall be subject to the same limitations . . .

as   a      member    of    the    duly     constituted         police       force”          of    the

political subdivisions in which WMATA operates.                               WMATA Compact

§ 76(b) (2009).             The    Officers          therefore      needed        to    apply      for

recertification from the Maryland Commission in order to resume

police activities for WMATA in Maryland.

         Beginning     in     April       (Officer       Spencer)      and        May    (Officer

Benton)        of     2012,       WMATA        placed         the     Officers          on        paid

administrative leave while they sought recertification.                                      As part

of the recertification process, Maryland law required the MTPD

to   send      the   Maryland      Commission          various      materials,          including

“any derogatory information discovered during the investigation”

that     led    to    the    firing       of    the     Officers.           Md.        Code    Regs.

§ 12.04.01.08(D)(2) (2015).                    Michael Taborn, who was then chief

of the MTPD, wrote letters to the Maryland Commission stating,

in     no      uncertain         terms,        that     the     MTPD        did        not     favor

recertification of the Officers.                        The record suggests this is

the first time that the MTPD has lobbied against recertification

in the wake of an arbitration decision ordering an officer’s

reinstatement.         The Maryland Commission denied Officer Spencer’s

request      for     recertification           in     July    2012;    it    denied          Officer

Benton’s       request      in    August       2012    and     subsequently            denied      his

                                                 5
appeal in October 2012.                Neither officer sought review of the

Commission’s decisions in state court.                         WMATA then discharged

the Officers for a second time.

      Following      these        second       terminations,            the     FOP        filed

grievances     on    behalf       of    the        Officers.       Officer       Spencer’s

grievance was denied at each of the first three steps of the

process outlined in the collective bargaining agreement, and the

FOP did not request arbitration.                    Officer Benton’s grievance was

denied at the first step of the process, and the FOP did not

appeal it further.          The record does not reveal why the FOP did

not   continue      with    the    grievance            process    on    behalf       of    the

Officers.

      At some point after the Maryland Commission’s decisions,

the   FOP    did    raise    the       issue       of    Officer   Benton’s       lack       of

recertification with the same Board of Arbitration panel that

had ordered his reinstatement. 1                   The Board concluded that it was

“not within its jurisdiction to determine whether the Grievant

meets the requirements to return to work as a WMATA Transit

Police      Officer.”        At    oral        argument        before     us,     the       FOP

acknowledged that it did not challenge this determination.



      1
       The record is unclear as to when, and in what procedural
posture, the FOP raised this issue with the Board.          It is
similarly unclear whether the FOP argued before the Board that
Officer Benton’s second termination was not for just cause.


                                               6
     Instead,        the    FOP    filed    this       action     in    federal    court    on

behalf of each officer, alleging that WMATA failed to comply

with the 2012 arbitration awards, in violation of both the WMATA

Compact and the collective bargaining agreement.                              The parties

filed    cross-motions        for    summary         judgment;     the     district       court

granted the FOP’s motion and denied WMATA’s.

     Finding     no        defect    in     the       arbitration        awards,     and    no

evidence that the awards were contrary to law or public policy,

the district court concluded that WMATA “failed to carry the

heavy burden necessary to displace the presumption that arbitral

awards   are    to    be    enforced       as       written.”      Fraternal       Order    of

Police Metro Transit Police Labor Comm., Inc. v. WMATA, No. 12-

1387, 2013 WL 3159839, at *10 (E.D. Va. June 20, 2013) (“Summ.

J.   Op.”)     (internal          quotation         marks   and    citation        omitted).

Accordingly,     the       court     held       that    “WMATA         breached    both    the

collective bargaining agreement and the Compact by failing to

comply with the decisions of the Arbitration Board.”                              Id. at *6.

The court ordered WMATA to reinstate Benton and Spencer as Metro

Transit Police officers and awarded them back pay and benefits. 2


     2
        The parties agreed before the district court that WMATA
would return the Officers to pay status and assign them
administrative responsibilities during the pendency of this
appeal.    Fraternal Order of Police Metro Transit Police Labor
Comm., Inc. v. WMATA, No. 12-1387, 2014 WL 1317672, at *1 (E.D.
Va. Mar. 27, 2014). At oral argument before us, WMATA informed
the court that Officer Spencer retired in September of 2014.
(Continued)
                                                7
The    court        subsequently       denied        WMATA’s     motion         for

reconsideration.       Fraternal Order of Police Metro Transit Police

Labor Comm., Inc. v. WMATA, No. 12-1387, 2014 WL 1317672, at *1

(E.D. Va. Mar. 27, 2014) (“Recons. Op.”).              WMATA then noted this

timely appeal.



                                       II.

      WMATA     advances    several    arguments      on     appeal,     but    its

principal contention is that the district court erred in holding

that it failed to comply with the Board of Arbitration’s awards.

WMATA maintains that it complied with the awards by placing the

Officers      on     paid      administrative        leave     pending         their

recertification.       It further contends that, in an action seeking

to enforce the arbitration awards, the FOP cannot challenge the

Officers’ second terminations, i.e., those resulting from the

Maryland Commission’s denial of recertification.                Instead, WMATA

argues, the FOP needed to use the grievance procedure outlined

in the collective bargaining agreement to contest the second

terminations.      We agree.

      “We review a district court’s decision to grant summary

judgment   de      novo,”   and   we   view   “all    facts    and     reasonable



The claims brought on his behalf are not moot, however, because
the disposition of this case could affect the district court’s
award of back pay.


                                        8
inferences        therefrom    in    the     light   most   favorable     to    the

nonmoving party.”         T–Mobile Ne. LLC v. City Council of Newport

News, 674 F.3d 380, 384–85 (4th Cir. 2012) (internal quotation

marks and citation omitted).               Under the federal common law of

arbitration, which applies to labor disputes involving WMATA, a

court can decline to enforce an arbitration award only on narrow

grounds.      See Office & Prof’l Emps. Int’l Union, Local 2 v.

WMATA, 724 F.2d 133, 139-40 (D.C. Cir. 1983). 3                     We need not

examine any of those grounds here, however, because the question

in this case is not whether the arbitration awards are valid --

the parties do not dispute that the Board of Arbitration had the

power to order WMATA to reinstate the discharged officers and

that the awards were valid when issued.                 Rather, the question is

whether WMATA complied with the awards.

      The FOP recognizes that WMATA initially complied with the

arbitration awards.           For, at oral argument before us and before

the   district      court,     the   FOP     acknowledged    that   placing      the

Officers     on    paid   administrative        leave    constituted     at    least

temporary     reinstatement.           The     question,    then,   is    whether


      3
       Those grounds include that the award was “arbitrary and
capricious” or not “sufficiently definite to allow enforcement.”
Office & Prof’l Emps. Int’l Union, 724 F.2d at 140. A court may
also decline to enforce an arbitration award if “the arbitrator
exceeded the scope of his jurisdiction” or if the award “is
contrary to law or explicit public policy.”        Id. (internal
quotation marks and citation omitted).


                                           9
terminating the Officers after the Maryland Commission denied

recertification constitutes non-compliance with the arbitration

awards.

       Neither the parties nor the district court cite any legal

authority that speaks directly to this question.                                   Two of our

sister      circuits,     however,         have          decided       cases     with     similar

procedural        histories       --     i.e.,        where       an    employee        has    been

terminated,        ordered     reinstated             by     an    arbitrator,          and     then

terminated again for an independent reason.                              The court in each

case     held     that   the       employee          cannot        challenge      the         second

termination        through        an    action           seeking       enforcement       of     the

arbitration award.

       In   Chrysler     Motors         Corp.       v.     International       Union,         Allied

Industrial        Workers,    2    F.3d       760    (7th     Cir.      1993),    the     Seventh

Circuit upheld Chrysler’s decision to fire an employee shortly

after he had been reinstated pursuant to an arbitration award.

The employee had initially been discharged for a single act of

sexual      harassment.           Id.    at     761.         The       arbitrator,       however,

determined that the incident warranted only a suspension and

ordered     Chrysler     to    reinstate         the       employee.        Id.    at     761-62.

During      its    investigation         of     the       incident,       however,       Chrysler

learned that the employee had engaged in additional prior acts

of sexual harassment.              Id. at 761.              But the arbitrator did not

consider any of those prior acts in reaching his decision to

                                                10
order reinstatement.          Id.        Chrysler therefore reinstated the

employee for one day and then terminated him again, citing the

additional acts of sexual harassment.                   Id. at 762.

     In    holding   that     Chrysler’s        action      did    not   violate      the

arbitration     award,       the        Seventh     Circuit        emphasized        that

arbitration awards do not prevent an employer from taking future

disciplinary action when confronted with new facts.                      Id. at 763.

The court explained that if an arbitrator’s decision “does not

consider     evidence      against       the    employee        discovered    by      the

employer    after    the    discharge,”           then    the     employer    “is     not

‘forever foreclose[d] . . . from using [the] evidence [acquired

after     the   discharge]         as    the      basis     for     a    [subsequent]

discharge.’”     Id. (quoting United Paperworkers Int’l Union v.

Misco, 484 U.S. 29, 41 (1987)) (alterations in original).

     Relying    on   the     Seventh       Circuit’s        decision     in   Chrysler

Motors, the Third Circuit has also held that an employer can

discharge an employee, after reinstatement, based on facts not

considered by the arbitrator.              United Food & Commercial Workers

Union Local 1776 v. Excel Corp., 470 F.3d 143, 146-49 (3d Cir.

2006).     In United Food, two employees, Jose and Sandra Diaz, had

been suspended pending an investigation into allegations that

they attempted to steal from their employer.                      Id. at 144.       A day

later, the employees were fired.                  Id.     When the employees were



                                           11
told they were being discharged, Jose Diaz allegedly attacked a

security guard.         Id.

        The employees proceeded to challenge their terminations in

arbitration,        and    the    arbitrator       overturned     the    employer’s

decision and ordered reinstatement and back pay.                    Id. at 144-45.

The arbitrator made clear, however, that he had not considered

the allegations surrounding Jose Diaz’s attack on the security

guard in reaching his decision.                  Id. at 145.         The employer

therefore reinstated Sandra Diaz, but informed Jose Diaz that he

was (again) terminated, effective from the date of his alleged

assault.          Id.     The    Third   Circuit    held   that    the   employer’s

actions did not violate the arbitration award.                    Id. at 144.   The

court explained that, in light of Jose Diaz’s violent conduct,

the employer was “free to terminate the employee a second time

based       on   independent     grounds,    pending   a   second    arbitration.”

Id. 4


        4
        In   United   Food,   the  court   distinguished  United
Steelworkers, District 36, Local 8249 v. Adbill Management
Corp., 754 F.2d 138, 140 (3d Cir. 1985)), where although a hotel
purported to comply with an arbitrator’s award to reinstate nine
maids, it immediately placed the maids on indefinite layoffs
because of “low occupancy.” Adbill held that the hotel’s action
conflicted with the language of the arbitration award, which
“clearly require[d]” returning the maids to actual duty. Id. at
142. United Food distinguished Adbill on the ground that there,
the employer’s “decision to reduce its workforce was made after
the issuance of the arbitral award,” while in the case before it
the basis for the “second termination occurred before the
arbitral decision.”   United Food, 470 F.3d at 149 (emphasis in
(Continued)
                                            12
     Like     the    employers       in    Chrysler       Motors   and     United       Food,

WMATA relied on independent grounds that were never before the

arbitrators when they terminated Officers Spencer and Benton for

a   second    time.          The    Maryland       Commission’s         denial     of     the

Officers’     request        for     recertification            created    a      new     and

independent basis for deciding that Spencer and Benton could no

longer serve as MTPD officers.                    Firing a police officer for a

disciplinary infraction is distinct from firing an officer for

failing to obtain recertification.                    And as in Chrysler Motors

and United Food, the basis for the second termination was never

before the arbitrators.             Nothing in the record suggests that the

Board    of   Arbitration          considered,       or   was    even     aware    of    the

possibility,         that     the         Maryland        Commission       would        deny

recertification.            We therefore hold that WMATA’s decision to

terminate the Officers for a second time, following the Maryland

Commission’s        denial    of    recertification,         did    not    violate       the

earlier arbitration awards. 5




original).   To the extent the holding in United Food rested on
this temporal distinction, we decline to adopt it. In our view,
truly independent grounds for terminating an employee can arise
before or after an arbitrator has heard the employee’s case.
That is, the independent grounds are genuinely outside the scope
of what was before the arbitrator.
     5
       Given the facts here, we need not decide precisely how
independent the reason for a second termination must be in order
to fall outside the scope of an action seeking to enforce an
(Continued)
                                             13
       We recognize that WMATA actively sought to influence the

Maryland     Commission    by    writing        letters    strongly    discouraging

recertification of the Officers.                The district court noted that

in   reviewing     ten   years   of   disciplinary         actions,    it    found    no

other case where the MTPD had employed “the type of strong,

negative rhetoric used by Chief Taborn in his letters to the

Maryland     Commission    concerning       Benton    and       Spencer.”     Recons.

Op., 2014 WL 1317672, at *4.                The court determined that this

amounted to “strong evidence of WMATA’s intention to not comply

with   the   arbitration     awards    by       creating    a    condition    that    it

could then use to justify not reinstating these officers.”                           Id.

(emphasis added).        And for this reason the court held that WMATA

had not complied with the arbitration awards.

       WMATA’s involvement in the recertification process does add

an element to this case not present in either Chrysler Motors or

United Food.        But whatever WMATA’s intentions, nothing in the

record permits a holding that WMATA’s actions violated the terms

of the arbitration awards.             WMATA was permitted -- in fact,

obligated     --    to    forward     to    the     Maryland       Commission    “any




arbitration award that orders reinstatement.  Moreover, the FOP
has  not   claimed   that WMATA’s   reliance on   the   Maryland
Commission’s    denial   of   reinstatement  was     pretextual.
Accordingly, we need not determine under what circumstances a
court could find that an allegedly independent reason was
actually pretextual.


                                           14
derogatory information” about the Officers’ terminations.                 Md.

Code Regs. § 12.04.01.08(D)(2).           To be sure, Chief Taborn was

particularly zealous in carrying out that duty in this instance

-- maybe to a fault.      But the decision whether to recertify the

Officers belonged solely to the Commission, which was no rubber

stamp for WMATA’s wishes.        To the contrary, the transcripts of

the Commission’s hearings indicate that the Commission exercised

independent    and     considered    judgment        in   evaluating      the

information   WMATA    supplied.     In    fact,   two    commissioners    in

Officer Spencer’s case voted in favor of recertification.

      Even if WMATA did provide “derogatory information” with the

express hope or intent that the Maryland Commission would not

recertify the Officers, we cannot conclude that WMATA exceeded

the bounds of permissible behavior under the arbitration awards.

The FOP has cited no authority that would permit us to reach

that conclusion.      Instead, the FOP begins from the premise that

the   arbitration    awards   prohibited   WMATA’s    conduct   toward    the

Officers and then proceeds to explain why the awards are valid.

But again, no party disputes that the awards were valid when

issued.   By defending the validity of the arbitration awards at

great length, but failing to address the applicability of the

awards to the actions WMATA took after they were issued, the FOP

assumes away the central question in this case.



                                    15
     At   best,    the    FOP    has    provided    reasons    for    questioning

whether WMATA’s second termination of the Officers was for “just

cause.”   The FOP might be right on that front.                Although we hold

that there were independent grounds for terminating the Officers

a second time, and thus that the second terminations did not

violate the arbitration awards, we do not decide whether those

grounds were adequate under the collective bargaining agreement.

Nor could we; such a decision would be beyond our jurisdiction.

The WMATA Compact is clear that arbitration is the appropriate

method    for    resolving       “any   labor      dispute,”   including       “the

interpretation or application of . . . collective bargaining

agreements and any grievance that may arise.”                     WMATA Compact

§ 66(c) (2009).      Interpreting the “just cause” language of the

collective      bargaining      agreement     falls    squarely      within    this

provision.

     Accordingly,        the    Officers’     grievances   belong     before    the

Board of Arbitration, not a federal court. 6


     6
       Because we hold that the FOP cannot challenge WMATA’s
second termination of the Officers in this action seeking
enforcement of the arbitration awards, we decline to reach
WMATA’s alternate bases for reversal, except to note, as the
district court held, that WMATA does not have immunity from suit
here. See Summ. J. Op., 2013 WL 3159839, at *7-8. The FOP has
alleged a breach of its collective bargaining agreement with
WMATA, and WMATA enjoys no immunity from such suits. See Beebe
v. WMATA, 129 F.3d 1283, 1289 (D.C. Cir. 1997) (“Section 80 of
the Compact waives WMATA’s sovereign immunity for contractual
disputes.”).


                                         16
                                        III.

        Our conclusion that WMATA did not violate the arbitration

awards does not mean we necessarily embrace WMATA’s behavior.

Like the district court, we are troubled by evidence that WMATA

handled    these     cases   in     a   markedly       different   fashion    from

previous employment disputes.           See Recons. Op., 2014 WL 1317672,

at *4.      Of course, there may be legitimate reasons for this

difference.       In any event, our view of WMATA’s tactics does not

alter our conclusion that we lack authority to decide whether

these     actions    by    WMATA    breached     the     collective      bargaining

agreement.     The grievance procedure outlined in that agreement

provides    the     only   proper    forum     for   resolving     the   Officers’

claims.

        For the foregoing reasons, the judgment of the district

court is

                                                                          REVERSED.




                                         17
