### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20279 Summary Calendar

EDWARD S. BALLEW; TIMOTHY J. SHANNON; CRAIG P. BOWCOCK; WILLIAM BAUER, Plaintiffs - Appellants
v. CONTINENTAL AIRLINES, INCORPORATED; CONTINENTAL PILOTS RETIREMENT PLAN, Defendants - Appellees

Appeal from the United States District Court for the Southern District of Texas

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. HAYNES, Circuit Judge: This appeal arises from the d i strict court’s order dismissing PlaintiffsA p p ellants’ (“Retirees”) claim for lack of subject matter jurisdiction due to the R a i l w a y L ab o r Act’s (“RLA”) exclusive and mandatory dispute resolution pro c e s s that applies to Retirees’ claims. Retirees argue on appeal that the RLA does not apply to them because they are no longer “employees” as contempla t ed by the RLA, 45 U.S.C. §§ 151, 181. Alternatively, Retirees argue that even if the RLA applies to t h e m as former employees, they complied with the terms of their Collective Bargaining Agree m e n t ( “ C BA ” ) , w h i c h a l l o w e d t h e m t o b ring an action in federal district court p u r s u a nt to Section 502(a)(1)(B) of the Employee U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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Retirement Income Security Act (“ERISA”). For the reasons set forth below, we AFFIRM. I. Facts & Procedural History Retirees are all former Continental Airlines pilots who filed a proposed class action against Continental Airlines, Inc. and the Continental Pilots Retirement Plan (“Continental”) in the Unit e d States District Court for the Southern District of Texas in May 2010. R e t irees sued under ERISA § 502(a)(1)(B), alleging Continental breached the terms of Retirees’ pension plan. On March 21, 2011, the district court dismissed Retirees’ clai m s for lack of jurisdiction, holding that the RLA applied to Retirees and that t h e R LA g ives exclusive jurisdiction over their contrac t i nterpretation claim to the administrative resolution process. Retirees timely appealed the district court’s order on April 18, 2011. In thei r complaint, Retirees allege that Continental misinterpreted the ter m s o f their pension benefits as memorialized in the Retirement Plan—a pension plan generally subject to ERISA. Specifically, Retirees contend that the pilots’ retirement pensions shoul d b e calculated according to the most recent sixty consecu t i v e months’ salaries before leaving Continental. Retirees argue that Cont i n e n tal inappropriately considered any utilized “sick leave” as an interruption of a pilot’s consecutive sixty m o n ths and thus calculated the continuous sixty mont h p e riod from an earlier period in the pilot’s career. Retiree s a ver that this computation method accounts for lower pension calculations because pilots earn less earlier in their careers. The CBA provided that employees like Retirees must seek r e v i e w of adverse benefit determinations through the Retirement Board, a properly established “System Board” under the RLA, 45 U.S.C. § 184. The Retirement Board is composed of four people, two appointed by Contin e n t a l and two

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appointed by the Air Line Pilots Association (“ALPA”). Section 21 of the CBA 1 outlines the jurisdiction of the Board, vesting it with the authority to hear grievances stemming from the “interpretation or application of any of the terms of the Agreement.” The CBA specifically ex e m p t s “ c h anges in hours of employment, rates of compensation, or working co n d itions covered by existing

a g r e e m ents between the parties,” from the Board’s jurisdiction. Moreover , section 21 dictates that “a l l c a s e s properly referred to [the Board] will be final and binding upon the parties.” If the Board deadlocks on a particular dispute, parties are allowed to seek fu r t h e r a r b itration, so long as the claimants waive their right to further liti g a t i o n and the arbitrator is selected from a mutually agreed list of ERISA arbitrators. If the Board d o e s n o t deadlock the CBA contemplates employees’ ability to sue under ERISA. Section 28 of the CBA expressly incorporates Continental’s r e t i r e ment plans into the CBA—includ i n g t h e Retirement Plan at issue here. Section 9.21(c) of the Retirement Plan provides standard notifica t ion procedures for a claimant’s adverse benefit d e t e r m i n ation by a Benefits Administrator. That provision requires the Administrator to “includ[e] a statement of the Claimant’s right to bring a civil action under section 502(a) of ERISA following an adverse benefit determination on review.” Section 9.21(d) of the Retire m e n t Plan provides that a Plan participant h a s a r i ght to have an adverse benefit determination reviewed by the Retirement Board. That section also provides a claiman t w i t h “t h e o p p o r t u n i t y t o s ub m i t w ri tten comments, documents, records, and other information relating to the claim for Plan benefits to the Retirement Board” and establishes that a “decision on review by the Retirement Board will

The Retir em ent Board is com pos ed of rep res enta tives se lect ed by both the em plo yees ’ 1 union and the em plo yer and is in plac e to res olve dis put es und er a CBA; by cont ras t, a Plan Adm inis tra tor is g e n e r a l l y se lect ed by the em plo yer and ow es a fid uciar y dut y to Plan benef icia ries in adm inis ter ing the Plan, see Izz ar el li v. Rexe ne Prods

. Co. , 24 F.3d 1506, 1509 n.3 (5t h Cir

. 1994)

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be binding and conclusive upon all p e r s o n s and the Claimant shall neither be required nor permitted to pursue further appeals to the Retirement Board.” The following section, 9.21(e), does, however, contemplat e a c l a i m a n t ’ s “right to bring

an action under section 502(a) of ERISA” following an adverse determination by the Retirement Board. Like t h e CBA, the Retirement Plan, section 9.21(f), allows a claimant to pursue binding arbitration before an ERISA arbitrator in the event of a Retirement Board deadlock. Ac t i n g f o r R e t i r e e s , Captain Edward Ballew sought re vi e w o f C o n t i n e n t a l ’ s initial adverse benefit determination on Augu s t 6 , 2009 and made oral arguments to the Retirement Board on August 10, 2009. The Retirement Board issued a unanimous decision rejecting Ballew’s interpretation of the P lan in Octo ber 2009. In its decision, the Retirement Board provided that “Captain Ballew also has the right to bring suit under section 502(a) of ERISA.” Retirees thus commenced this action in May 2010. II. Standard of Review T his Court has jurisdiction over the final judgment of the district c o u r t under 28 U.S.C. § 1291. We review a district court’s dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) de novo. Ramming v. United States , 281 F

. 3 d 1 5 8, 161 (5th Cir. 2001); see also St. Paul Fire & Marine Ins. Co. v. L a b u z a n , 579 F.3d 533, 538 (5th Cir. 2009) (stating that this Court reviews a district court’s rulings on questions of statutory int e r p retation de novo). We may also affirm on any ground supported by the record, including one not reached by the district court. Moncrief Oil Int’l Inc. v. OAO Gazprom , 481 F.3d 309, 311 (5th Cir. 2007). The party asserting jurisdiction bears the burden of proof for a 1 2 (b)(1) motion to dismiss. Ramming , 281 F.3d at 161 (citations omitted). The plaintiff must prove by a preponderance of the evidence that the court has jurisdiction based on the complaint and evidence. Patterson v. Weinberger , 644 F.2d 521, 523

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(5th Cir. 1981). A court can find that subject matter jurisdiction is lacking based

on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Ramming , 281 F.3d at 161 (citing Barrerra-Montenegro v. United States , 74 F.3d 657, 659 (5th Cir. 1992 )). III. Discussion Retirees filed this action pursuant to ERISA § 502(a)(1)(B), alleging that Continental breache d the CBA by failing to provide Retirees with pension benefits outlined in the Retirement Plan. The issues presented by this appeal are (1) whether the RLA applies to Retirees as “employees” under the Act; and (2) whether, despite the RLA’s e x c l u s ive arbitration procedures, Retirees may seek judicial review of adverse Retirement Board determinations. A. Retirees as “Employees” under the RLA First, Retirees contend that they are not covered by the RLA. Citing the language go v e r n i ng the RLA, 45 U.S.C. §§ 151, 181, Retirees argue that their status as former employees exempt s t h e m f r om the RLA’s mandates. This argument has been squarely rejected by this cou r t

. See Bowcock v. Cont’l A i rlines, Inc. , No. 10-20856, 2011 WL 2672521 (5th Cir. July 8, 2011) (unpub l i s hed). In that case, one of the appellants here, Craig Bowcock, 2 pursued similar litigation based on his allegation that Continental breached its fiduciary duty under ERISA by indicating that he would have to abandon his contemporaneous pension claims (the suit before us now) in order to t ake advantage of an early retirement program
. T h i s Court affirmed the district court’s dismissal of Bowcock’s claims due to lack of subject matter jurisdiction. Id. at *3. Bowcock argued, just as Retirees do here, that the RLA’s mandatory

Altho u g h Bow coc k is unpub lis hed and, ther efo re, not pr ece dent ial, it rep res ents a 2

reas oned opi nion by our cour t on the sam e genera l fac ts pr es ente d in this cas e. We ther efo re rely upon it as p ers uas ive autho rit y. 5 Case: 11-20279 Document: 00511742362 Page: 5 Date Filed: 01/31/2012No. 11-20279

dispute resolutio n p r o c e d u res were not applicable to him as a retiree because retirees are not “employees” under the RLA. Id. at *1. As noted in Bowcock , the Supreme Court decided this issue in Pennsylvania Railroad Co. v. Day , 360 U.S. 548 (1959). The Day Court conside r ed whether the National Railroad A d j u s t m e n t Board maintained exclusive jurisdiction o v e r a f o r m e r r a i l e m p l o y e e
. Id. at 551. Holdin g t h a t t h e RLA applied despite the claimant’s status as a retiree, the Court stated that “[a]ll the considerations of legislative meaning and policy which have compelled the co n c l usion 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. Despite Day ’s clear pronouncement, Retirees invite us to ignore Supreme Court precedent because they believe t h e c urrent Supreme Court would overrule Day

. We are a “strict sta r e d e c i s i s court,” Bowcock , at *3 (citing FDIC v. Abraham , 137 F.3d 264, 268 (5th Cir. 1998)), and are in no position to challenge the statutory construction utilized by the Supreme Court in Day

. The Supreme Court has sole authority to overrule its own decisions, meaning that the courts of appeal m u s t f

ollow the Supreme Court’s directly controlling precedent even if it “appears to rest on reasons r ej e c t e d in some other line of decisions.” R o d r ig u e z de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484 (1989). Our sister circuits agree. See, e.g. , Bloemer v

. Nw. Airlines, Inc. , 401 F.3d 935, 939 (8th Cir. 2005); Leu v. Norfolk & W. Ry. Co. , 820 F.2d 825, 831 n.10 (7th Cir. 1987); Air Line Pilots Ass’n, Int’l v. Alaska Airlines, Inc. , 735 F.2d 328, 328 (9th Cir. 1984); see also Bowe v. Nw. Airlines, Inc. , 974 F.2d 101, 103 (8th Cir. 1992) (finding that claimant’s status as a former employee does not f all within the

narrow exceptions to the RLA’s exc l u s i v e j urisdiction). We thus follow the Supreme Court’s precedent and leave to that Court the determ i n a t i o n o f w h e t h e r Daysurvives another day.

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B. Judicial Review of a System Board Determination Next, Retirees argue that even if they are “employees” as contemplated by the RLA, they complied with the dispute resolution process governed by the CBA and are thus able to seek judicial review of the Retirement Board’s October 2009 determination. The RLA notably distinguishes between two types of disputes. “A major dispute concerns the formation of a CBA, which a r i s e s when a CBA is not in place or when a party seeks to change the terms of a CBA. A minor dispute

concerns grievances or the interpretation or application of agreements covering rates of pay, rules, or working conditions.” Mitchell v. Cont’l Airlines, Inc. , 481 F.3d 225, 230-31 (5th Cir. 2007) (citing Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n , 491 U.S. 299, 302-03 (1989)); see a l s o 4 5 U .S.C. § 184 (requiring air carriers and unions to establish arbitral boards for t h e resolution of “disputes b e t w e e n a n employee or group of employees and a carrier or carriers by ai r growing out of grievances, or out of the interpretation or application of agreements concerning r a t e s of pay, rules, or working conditions

. . .”). At the

crux of the issue here, the RLA requires minor disputes that cannot be settled through internal griev a n c e procedures to be resolved through a mandatory, exclu s i v e, and comprehensive resolution process before a claims adjustment board established by the employees’ union and the employer through the CBA. See, e.g. , Hawaiian Airlines, Inc. v. Norris , 512 U.S. 246, 248 (199 4 ) ; B hd. of Locomotive Eng’rs v. Louisville & Nashville R.R. Co. , 373 U.S. 33, 38 (1963). “The distinguishing feature of [a minor dispute] i s that the dispute may be conclusively resolved by interpreting the existing agreement.” Consol. Rail Corp. , 491 U.S. at 305. Thus, “[w]here an employer asserts a contractual right to take the contested act i o n , t h e e n suing dispute is minor if the action is arguably justified by the terms of the parties’ collective-bargaining agreement.” Id. at 307. “Congr e s s c o n s idered it essential to keep these so-called ‘minor’

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disputes within the Adjustment Board and out of the courts.” Union-Pacific R.R. Co. v. Sheehan , 439 U. S

. 8 9 , 94 (1978) (per curiam); see generally Hawaiian Airlines, 512 U.S. at 252 (“Congress’ purpose in passing the RLA was to promote stability in labor-management relations by providing a comprehensive fram e work for resolving labor disputes.” (citation omitted)). Furthermore, nat i o n al policy favors the final settlement of labor disputes outside of the judicial
process, see, e.g. , Air Line Pilots Ass’n, Int’l v. E. Air Lines, Inc. , 632 F.2d 1321, 1323 (5th Cir. 1980), and “[t]he federal policy of settling labor di s p u t e s by arbitration would be undermined if courts had the final say on the merits of the awards,” Atchison, Topeka & Santa Fe Ry

. Co
. v
. U nited Transp. Union , 175 F.3d 355, 357 (5th Cir. 1999) (quoting United Steelworkers ofAm. v. Enter. Wheel & Car. Corp. , 363 U.S. 593, 596 (1960)). That being said, “[t]he assertion of any 3 right that is not created by a CBA is

. . . not subject to binding arbitration under the statute.” CareFlite v. Office & Prof’l Emps. Int’l Union, AFL-CIO , 612 F.3d 314, 320-21 (5th Cir. 2010) (Dennis, J., concurring). 4

Tho ugh a prop erly re so lved ad just me nt boar d aw ardis enfo rce able in fed eral c ourt , 3

see Int’l As s’n of Ma chi nis ts v. Cen t. A i r li nes , 372 U. S. 682, 685 (196 3), a Sys tem Board det erm inati on is subject only to very narr ow judic ial revie w. Sheeh an , 439 U. S. at 91. In fac t, “th e sc ope of judic ial revie w of Adjus tm ent Board dec isi ons is amo ng the narr ow es t kn ow n to the law .” Id. (int erna l quot es om itt ed)

. In f a c t , t h i s c irc uit genera lly only cons ide rs thr ee pos sib le ground s for judic ial revie w of an arbit ral dec isi on: (1) wh ethe r the Bo a rd fai led to com ply wi th the RLA’s requ irem ents ; (2) wh ethe r the Board fai led to conf ine its elf to mat ter s wi thin the sc ope of its juris dic tio n; and (3) wh ethe r the Board ’s dec isi on wa s the res ult of fr aud
or cor rup tio n. See, e. g. , Mi tchel l , 481 F.3d at 231 (c itin g Cont’l Ai rl ine s, In c
. v
. In t’l Bhd. of Tea ms ters , 391 F.3d 613, 617 (5t h Cir. 2004) ). We have, how ever, cons ide red a fou rth line of revie w ground ed in red res sin g violat ion of a par ty’s due pr oce ss right s. See, e. g. , i d

. ( cit ing Bhd. of Loco mo tiv e Eng’rs v. St. Loui s Sw. Ry. Co. , 757 F.2d 656, 661 (5t h Cir. 1985) ). Retir ees d o n o t s uggest that thei r clai m fal ls unde r this narr ow sc ope of judic ial revie w and we t h u s ass es s only wh ethe r thei r pens ion clai m is a “m inor ” dis put e subject to exclus ive a n d fina l Sys tem Boa rdr es olut ion.

Care Fli tew as dec ide d by a quorum wit h Judges Denni s andElrod agre eing on the 4 judgm ent but not the rat ionale

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Retirees would be hard-pressed to dispute that resolution of the pension determination here can only be done through interpretation of the CBA, which would normally constitute a “minor” dispu t e a n d thus be subject to the RLA’s mandatory dispute resolution process. See Long v. Flying Tiger Line, Inc. , 994 F.2d 692, 694 (9th Cir. 1993) (“An employee pension plan falls within the scope of the [RLA] and is subject to its mandatory arbitration procedures.” (citing Air Line Pilots Ass’n, Int’l v. Nw. Airlines, Inc. , 627 F.2d 272, 275 (D.C. Cir. 1980)). To be sure, Retirees’ claim is de p e n d e nt entirely on the proper calculation of pension b e n efits, which can only be done through reference to the CBAincorporated Plan. Retirees rely on two cases within our circuit to stress the argument that parties to a CBA may exempt c e r tain disputes from the RLA’s compulsory arbitration procedures. First, Retirees cite Bonin v. American Airlines , for the
p roposition that parties may contract to allow an RLA-governed claim to go t o court under ERISA. 621 F.2d 635 (5th Cir. 1980). In Bonin , the plaintiff pilot brought suit under ERISA § 502, alleging various claims relating to his wrongful discharge and improper allocation of pension benefits owed him under his pension plan. Id. at 637. After clearly acknowledging the exclusive province of RLA syst e m s b o a r d s over “minor” disputes, we looked to the language of the Retirement Plan in finding that the pensi o n c l a i m s were not subject to interpretation under the CBA. Id. at 638-39. We looked to the Retirement Plan i t s elf, which included language governing Board jurisdiction: “‘neither the interpretation of the Plan nor its administration shall as such be within the jurisdiction’ of the collective bargaining agreement.” Id. at 639. We thus held that “[s]ince the pension plan

. . . is not maintained pu r s u a n t to a collective bargaining agre ement, the district court has jurisdiction of plaintiff’s pension claim under ERISA.” Id. In coming to this conclusion, we made an important distinction governing claims under ERISA and the RLA:

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Congress by enactment of ERISA endorsed in effect two alternative methods of administering pension plan claims for employers whose collective bargaining disput e s a r e governed by the Railway Labor Act: (1) arbitration of employee p e n s ion claims or (2) independent administration of claims by the pension plan administrator with a federal right of review pursuant to ERISA.

I d

. I n effect, the parties may choose whether they want to be govern e d 5 exclusively by the RLA or maintain a judicial cause of action pursuant to ERISA. More recently, a quorum of this court decided CareFlite v. Office and Professional Employees International Union , which inv o l v e d a CBA that included terms similar to the dispositive la n g u a ge in Bonin

. 612 F.3d at 316. Judge Dennis focused on two clause s i n t h e CBA that made claims stemming from the t e r mination of employment for failure to obtain certain licenses and training “non-grievable and non-arbitrable.” Id. He concluded that minor disputes “ ‘ must be resolved only through the RLA mechanisms, including the

ca r r i e r ’s internal dispute-resolution processes and an adjustment board established by the employer and the unions.’” I d

. a t 3 1 8 (quoting Hawaiian A i r l i nes , 512 U.S. at 253). However, he determined that the “assertion of an y right that is not created by a CBA is

. . . not subject to binding arbitration under the statute.” Id. at 320-21 (citing Hawaiian Airlines , 512 U.S. at 258). Judge Elrod agreed that the p a r t icular dispute was not arbitrable, but she employed

a different rationale. Id. at 325 (Elrod, J., concurring). She determined that the dispute wa s m i n o r but that the RLA allows parties to exclude some minor disputes from arbitration. Id. The issue presented here is slightly di fferent: whether parties to a CBA

can choose to include disputes within the RLA’s dispute resolution process, yet

L e s t t h ere be any conf usi on, Bonin mak es clea r that Sys tem s Board s and Plan 5 Adm inis tra tor s are dis tinc t enti tie s; the for me r ins tit uted by the RLA and the l a t t e r by ERISA. 10 Case: 11-20279 Document: 00511742362 Page: 10 Date Filed: 01/31/2012No. 11-20279

evade the exclusivity of RLA arbit r a t i o n by expressly providing for judicial review of System Board decisions. We conclude that they cannot. Retirees contend that their pension plan, and its concomitant integration into the CBA, provides for ERISA r e l i e f after an adverse decision by the Retirement Board. Inde e d , t he CBA’s terms provide as much, clearly contemplating the ability of a claimant to sue under ERISA § 5 0 2

. Insofar as parties to a contract cannot avoid the exclusivity of the RLA’s arbitral process, neither does ERISA supersede t h e m a n d a t o r y a rb i t r a t ion provisions of the RLA, 6

a s evidenced by ERISA’s express provision ceding authority to prev i o u s l y enacted laws. 29 U.S.C. § 1 1 4 4 ( d ) (“Nothing in this title shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the U n i ted States

. . . or any rule or regulation issued under any s u c h l a w
. ” ). Retirees’
g r i e v a nces are thus governed not by ERISA, but “entirely by the [CBA] a n d subject to the jurisdiction of the System Board of Adjustment by the [RLA].” Bonin , 621 F.2d at 638. Bonin does make clear that part i e s have a choice between two alternate

avenues for resolving ERISA claims that fall under the RLA: providing for RLA dispute resolution or excluding certain disputes from the RLA’s mandates and affording judicial review under ERISA following independent administration of claims by a plan administrator. Retirees here erroneously seek both—Retirement Board review un d e r t h e R LA f o l l o w e d b y j u di c i al review under E R ISA. The pension claims here are undisputedly grounded in the C B A a n d require interpretation of the agreement as evidenced by Retirees’ utilization of the Retirement Board for review of Continental’s interpretation of the Plan.

Altho ugh the par tie s so me tim es ref e r t o R LA pr eem pt ion of ERISA clai ms , 6 “p ree mp tio n is not the app lica bl e doc tri ne unde r thes e cir cum st ance s, sin ce the ques tio n wh ethe r one fed eral law tak e s pr ece denc e over anot her doe s not im pli cat e the Sup rem acy Claus e.” Ha stings v. Wil son , 516 F.3d 1055, 1058 n.2 (8th Cir. 2008) (quo ting Coker v. TWA , 165 F.3d579 , 583 (7t h Cir

. 1999) ).
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Retirees reference language in Boni n a n d CareFlite that they contend allow parties to freely contract out of the RLA, but further examination of these d e c i s i o ns elucidates their limited application. The CBA provision at issue i n Bonin completely removed the pens i o n plans and the CBA from the RLA resolution process, making the grievances there subject to federal subject mat t er jurisdiction because they could not be characterized as “minor” disputes under the RLA. CareFlite did no t c ommand a majority for its rationale but, in any

7 event, did not involve a p a r t y who sought both RLA-style review and judicial review. The pension plans here a r e s u bj e c t to the RLA, and Retirees have indeed sought review before the Retirement Board. Moreover, nothing in the CB A e x plicitly cedes arbitral jurisdiction over

a dverse benefit determinations from the Board. Rather than fi n d i n g t h e m s e lv e s outside the ambit of the RLA, Retirees contend that the CBA provides for federal judicial review of the R e t i rement Board determination. This contention is 8 untenable. “[P]arties

. . . may neither confer subject matter jurisdiction on the district court nor strip it of such jurisdiction by agreement or waiver.” Buchner

The D. C. Circ uit has expla ined that any “d oubt s about t h e a r bitr abilit y of iss ues 7 sho uld be res olved in favor of cover age.” Ai r Line Pil ots As s’n, Int’l v. De lta Ai r Line s, Inc. , 86 F.2d 87, 9 3 (D .C. Cir. 1988) (c itin g Nw

. Ai rl ine s v. ALPA , 808 F.2d 76, 82 (D .C. Cir. 1987) ). Ou r sis terc irc uit fur ther f oundt hat a par ty see ki ng to est ablis h that the S yst em Boa rdhas
no juris dic tio n “m ust pr ovide pos itive ass uranc e that the arbit rat ion claus e is not sus cep tibl e of an inte rp ret atio n that cover s the ass ert ed d i sp ute. ” Id. at 93-9 4 (c itat ion om itt ed) (c om par ing the grievanc e at hand to the one in Bonin , the cour t fou nd no “p os itive ass uranc e” that the Plan wa s enti rely inde pend ent fr om the CBA beca use the Plan wa s e xpre ss ly inco rp orat ed into the CBA). Though clea rly not bind ing o n o u r d e c isi on here , the burd en es tabl ish ed in De l ta i s i n s t ruc tive. At the very leas t, the Retir em ent Plan and CBA here
cre ate doubts about the inde pend ence of the Plan fr om the CBA and thus sho uld be res olved in favor of

c overa ge un der t he RLA.
Insof ar as Retir ees may cont end that the judic ial revie w p r o visi ons of the CBA 8

cons tit ute a for um se lect ion claus e, we find our sis ter cir cuit ’s cons tru cti on o f ERISA per sua sive

. See Cruthis v. Me tro Lif e Ins. , 356 F. 3 d 8 1 6 , 819 (7t h Cir. 2004) (“ [W] e join the
se veral cour ts that have add res se d this iss ue by hold ing that the phr ase , ‘you may fil e sui t in
a st ate or fed eral cour t’ is a st atut oril y requ ired dis clos ure o f a n e m p l oyee’ s ERISA right s rat her than a f

orum s elec tio n c laus e.” ( cit atio ns om itt ed) ).
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v. FDIC , 981 F.2d 816, 818 (5th Cir. 1993) (citation omitted); see Bowe, 974 F.2d at 103-04 (“‘Parties to an agreement cannot create federal su bj e ct matter jurisdiction by consent.’” (quoting Jader v. Principal Mut. Life Ins. Co. , 925 F.2d 1075, 1077 (8th Cir. 1991)); see also Hall Street Assocs., L.L.C. v. Mattel, Inc. , 552 U.S. 576, 578 (2008) (holding that the narrow grounds for judicial review of

an arbitration award under the Federal Arbitration Act could not be altered by party agreement); cf. Air Line Pilots Ass’n , I n t ’ l v
. US Airways Grp., Inc. 609 F.3d 338, 343 (4th Cir. 2010) (citing 45 U.S.C. § 184) ; Delta , 863 F.2d at 92-95 9 (r e j e c t i n g u n i o n ’ s a r gu m e n t t h a t R LA a rb i t ration requirements cannot be w a iv e d or bargained away because the purpose of an arbitration board under the RLA is to decide disputes arising out of the CBA, and if a CBA specifically excludes

an issue from arbitration or grievance, then a claim based on that issue cannot be said to arise from it). Retirees contend that they are not seeking to create federal subject matter jurisdiction, but instead are relying on ERISA a s an alternative method of administering pension plan claims. In support of this argument, Retirees rely

on McDonald v. Continental , 4:10-CV-00408 (S.D. Tex. July 8, 2011), addressing this same Plan, which suggested in dicta that the provisions were analogous to those in Bonin and CareFlite an d t hus subject to judicial review under ERISA § 5 0 2 (a). McDonald, however, determined that the court lacked jurisdicti o n

“Congr es s wa s plai nly wi thin its right s to com bine the virtu es of arbit rat ion wi th the 9 virtu es of coll ect i v e b a r gaining. It det erm ined sim ply that an arbit ral for um wa s requ ired , wi th the par ame ter s of that for um being lef t to vo l u n tar y agree me nt. ” Id. Congres s thus “re lieved fed eral cour ts of the burd en of del ineat ing wh at a group adjus tm ent boar d wo uld or sho ul d l ook lik e,” inclu ding the des ignati on of how arbit rat ors wo uld be chos en, how man y ther e wo uld be, and wh at pr oce dur es they wo uld fol low

. Id. “Congr es s alloc ated that tas k to th e p a r t ies , allow ing them to has h out the sp ecif ics thr ough negot iati on. ” Id. Congres s’ s rec ogniti on of the par tie s’ abilit y to negot i a t e t h e sc ope of the arbit ral for um doe s not by exten sio n pr ovide par tie s wi th the abilit y to alloc ate judic ial r e v iew that Congres s did not othe rw ise p rovid e. 13 Case: 11-20279 Document: 00511742362 Page: 13 Date Filed: 01/31/2012No. 11-20279

over McDonald’s particular (and di f ferent) claim. Thus, it does not aid our analysis here. If Retire e s were able to bring suit under ERISA for “minor” disputes it would destroy the purposes of t h e R LA in promoting an efficient and

“ c o m p r e h ensive framework for resolving labor di s p u t e s
. ” H a w a i i a n A i r l i n e s , 5 1 2 U.S. a t 2 5 2

. The RLA’s dispute resolution process, if it applies, is mandatory and exclusive and clearly does not contemplate providing an additional outlet for review. That is just what Retirees are seeking here—Retirees’ interpretation of the RLA would provide cla imants with an additional forum for their disputes following adverse determinations. Perhaps even more concerning would be the potential for employers to seek costly judicial review in contraventio n o f a System Board determination favorable to a claimant. Lastly, it is well established that judicial review of System Board determinations is exceptionally narrow. See, e.g. , Sheehan , 439 U.S. at 91. In this way, it is similar to the limited judicial review of arbitration awards under the Federal Arbitration Act. The Supreme Court in Hall Street Associat es expressly disallowed the parties’ agreed upon judicial review that exceeded the judicial review contemplated by the FAA. 552 U.S. at 585-90. Here, the Retirees

are explicitly looking for a “contracted-for” judicial remedy following an adverse RLA-established Retirement Board ruling with out showing any of the narrow exceptions to RLA exclusivity. We decline to depart from established precedent preventing parties from creating federal court jurisdiction where there is none. IV. CONCLUSION For the foregoing reasons, we AFFIRM the d i s t rict court’s dismissal of Retirees’ complaint for want of jurisdiction.

14 Case: 11-20279 Document: 00511742362 Page: 14 Date Filed: 01/31/2012