Due process review under the Railway Labor Act.

• Author: Sagers, Christopher L.

The federal government regulates disputes between organized labor and management in a wide range of private industries. Most disputes are governed by the Labor-Management Relations Act (LMRA),(1) which both protects the rights of management and organized labor and establishes a comprehensive scheme of dispute resolution.(2) The Railway Labor Act (RLA),(3) however, creates a regime unique to the railroad and airline industries.(4) It requires that certain claims(5) between the covered employers - known in the RLA as "carriers"(6) - and their employees be settled by submission to the RLA statutory arbitration scheme. Under this scheme, parties must resolve disputes "in the usual manner" where possible.(7) But where such disputes cannot be resolved by the parties themselves, they must be referred to an arbitral tribunal created by the RLA - the National Railroad Adjustment Board (NRAB).(8) The NRAB is empowered to delegate its decisionmaking authority to smaller scale tribunals,(9) and parties may also voluntarily submit their claims to ad hoc tribunals that operate under RLA rules.(10)

Federal courts disagree about the proper scope of judicial review of RLA tribunals. Specifically, there is a split of authority as to whether courts may reverse RLA rulings for procedural due process violations.(11) The Fifth Amendment directs that before a federal actor may deprive a person of "life, liberty, or property," it must first afford that person "due process of law."(12) This requirement provides, at a minimum, that the government actor must engage in some formalized procedure to ensure that the deprivation is not the product of government arbitrariness.(13) The procedural requirements imposed by the due process doctrine traditionally have involved the elaboration of procedural safeguards designed to accord to the individual "the right to be heard before being condemned to suffer grievous loss of any kind" resulting from government action.(14)

In most administrative contexts, there is no question that the decisionmaker is subject to due process scrutiny by reviewing courts.(15) However, judicial review of RLA administrative findings is "among the narrowest known to the law."(16) It is so narrow because the RLA by its language permits a district court to reverse RLA findings only on three grounds: "[F]or failure of the [tribunal] to comply with the requirements of [the RLA], for failure of the [tribunal] to conform, or confine itself, to matters within the scope of [its] jurisdiction, or for fraud or corruption."(17)

Notwithstanding this narrow language, several federal courts initially considered due process to be an additional basis of review.(18) In Union Pacific Railroad v. Sheehan,(19) the Supreme Court called into doubt the validity of these initial holdings. The Sheehan Court reversed a Tenth Circuit finding that the NRAB had violated a litigant's due process rights by refusing to hear one of his legal arguments. Unfortunately, the Court failed to clarify the scope of judicial review in the RLA context, and thus the Courts of Appeals have disagreed about how to interpret the opinion. The Third,(20) Sixth,(21) and Eleventh(22) Circuits hold that the Sheehan decision imposes a bar on due process review. By contrast, the Second,(23) Fifth,(24) Seventh,(25) and Ninth(26) Circuits regard the Sheehan decision as merely reaffirming that the RLA's narrow scope of review extends to due process violations.

This Note contends that the RLA prohibits due process review and further argues that such a result is constitutional. Part I examines the statutory language of the RLA itself and contends that it limits district court review to the three statutory grounds. Part II argues that the Supreme Court's opinion in Sheehan reaffirms this interpretation because the Court's language unmistakably conveys an intent to bar due process review. Part III explains that such a limitation does not violate the Constitution. The only constitutional provision that could be implicated in an RLA proceeding, the right of procedural due process, is protected by procedures mandated by the RLA. Finally, Part IV argues that this interpretation is desirable because it satisfies the needs of the railroad and airline industries.

1. Plain Language of the RLA

   General principles of statutory construction dictate that an analysis of a statute should begin with the language of the statute itself.(27) The RLA is unequivocal in its limitation of review to the three statutory grounds. It provides that

   the findings and order of the [NRAB] shall be conclusive on the parties, except that the order ... may be set aside ... for failure of the [NRAB] to comply with the requirements of [the RLA], for failure of the [NRAB] to conform, or confine itself, to matters within the scope of [its] jurisdiction, or for fraud or corruption.(28)

   The context of the jurisdictional limitation contains nothing that might suggest that this language means other than what it says.(29)

   Indeed, the well-established principle of inclusio unius est exclusio alterius directs that by setting out three permissible bases of review, Congress should be understood to have excluded all others intentionally.(30) For instance, in O'Melveny & Myers v. FDIC,(31) the extent of the power of the Federal Deposit Insurance Corporation (FDIC) was questioned. Although the FDIC's functions and powers are set out in great detail in the Financial Institutions Reform, Recovery, and Enforcement Act,(32) the FDIC, as a party to the O'Melveny action, claimed that its powers could be supplemented or modified by "federal common law." The Supreme Court rejected this argument because, in accordance with the doctrine of inclusio unius, the explicit statutory list of powers barred the creation of new ones.(33) The RLA similarly sets out a finite list of permissible grounds of review; the doctrine of inclusio unius thus mandates that the list be considered exclusive.

   Naturally, courts are particularly cautious where constitutional issues are raised. Courts try to avoid constructions of federal statutes that raise constitutional questions wherever possible.(34) In fact, in a class of cases in which Congress tried to limit appellate review of constitutional issues, the Court directed that "clear and convincing" evidence of a congressional intent to limit review must be shown.(35) Such evidence is necessary because a total ban on constitutional review raises "serious constitutional questions."(36)

   The plain language of the RLA, however, presents exactly such clear and convincing evidence that constitutional review is not allowed. If it does not, then hardly any statute imaginable could, for the RLA creates a scope of review which is "amongst the narrowest known to the law."(37)

2. Sheehan's Preclusion of Due Process Review

   That the plain language of the RLA precludes due process review was reaffirmed by the Supreme Court in Union Pacific Railroad v. Sheehan.(38) Sheehan involved an employee discharged for violation of internal employee rules who sought to challenge his termination as a breach of his union's collective bargaining agreement. He filed his initial action in state court because at the time it was permissible to challenge a violation of a railroad collective bargaining agreement under state law. But, during the pendency of his claim, the Supreme Court held in Andrews v. Louisville & Nashville Railroad(39) that a railroad employee may only challenge a breach of an agreement covered by the RLA through the NRAB, thereby extinguishing Sheehan's state law claim. Accordingly, he then filed the claim with the NRAB, but the NRAB dismissed his action for failure to comply with the time limitations set forth in the collective bargaining agreement. Sheehan then brought suit in federal district court, arguing that the time limits under the collective bargaining agreement should have been "tolled" during the pendency of his state law claim, such that the NRAB should be required to hear his claim. The district court, although sympathetic to Sheehan's tolling argument,(40) felt compelled to uphold the NRAB's order because Sheehan failed to establish any of the three grounds for reversal set forth in the RLA. There was, the court concluded, no "legal principle under which it [could] grant . . . relief without violating the [RLA]."(41)

   The Tenth Circuit reversed the district court. The Tenth Circuit pointed out that Sheehan's action had been extinguished only by unfortunate circumstances; if the Supreme Court had not decided Andrews during the pendency of his claim, the claim would have survived. While admitting that review of RLA proceedings is exceedingly narrow, the Tenth Circuit fashioned a broad loophole in the RLA's jurisdictional Iimitation. The court felt that, in light of the implications arising from Andrews, it was able to review "purely legal issues" raised in RLA hearings.(42) Although it is unclear exactly what the court meant by "purely legal issues," it apparently meant to refer to legal issues extraneous to the interpretation of collective bargaining agreements, such as the equitable doctrine of the tolling of time limits. Noting that an RLA collective bargaining agreement is a federal contract governed and enforceable by federal law in the federal courts,(43) the Tenth Circuit concluded that "[t]he applicability of equitable tolling to the agreement in question [was] not in doubt."(44) Even so, the court admittedly did not pass on the merits of the tolling issue.(45) Rather, it held that the NRAB's "failure to address the merits of plaintiff Sheehan's claim denied him due process"(46) and remanded to the trial court for further remand to the NRAB.

   The Supreme Court reversed the Tenth Circuit. The Court was adamant in its holding that review of RLA proceedings is limited to the three statutory grounds and thus that due process review is inappropriate. It said that "the [RLA] unequivocally states that...