1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

ROBERT (BOB) ROSS, § 

 Plaintiff/Counterclaim Defendant, § 

§ 

v. § Civil Action No. 4:22-CV-00343-Y 

§ 

ASSOCIATION OF PROFESSIONAL § 

FLIGHT ATTENDANTS, et al., § 

 Defendants/Counterclaim Plaintiff. § 

__________________________________________________________________________ 

EUGENIO VARGAS, § 

 Plaintiff/Counterclaim Defendant, § 

§ 

v. § Civil Action No. 4:22-CV-00430-Y 

§ 

ASSOCIATION OF PROFESSIONAL § 

FLIGHT ATTENDANTS, et al. § 

 Defendants/Counterclaim Plaintiff. § 

SURREPLY TO PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE 

 TO THEIR MOTION TO DISMISS APFA’S COUNTERCLAIM 

Defendants Counterclaim Plaintiff Association of Professional Flight Attendants 

(“APFA”), et al. respectfully submit this Surreply to the Replies by Plaintiffs Ross and Vargas to 

the responses by APFA to their motions to dismiss the counterclaims against them (Ross Doc. 

65; Vargas Doc. 63) for enforcement of the arbitration decisions against them.1 This single, 

combined response is submitted to underscore that the recent submissions by Ross and Vargas 

share the same misstatements of fact and law,2 and are both subject to being stricken by the 

1 Contemporaneously with the filing of this surreply brief APFA has filed a motion for leave to 

file a surreply limited to addressing new arguments first raised by Ross and Vargas in those reply 

briefs. 

2 Citation to the filings in Ross v. APFA, et al, No. 4:22-CV-00343-Y will be made by “Ross Doc. __” 

and to the filings in Vargas v. APFA, et al., No. 4:22-CV-00430-Y by Vargas Doc. __” where the number 

referenced will be to the ECF docket number of the document cited. 
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Court as improper surreply submissions attempting to belatedly reargue APFA’s pending 

motions to enforce the arbitration decisions against them.3

For the sake of clarity and economy, we present this brief submission in two categories: 

Plaintiffs’ misstatements of the record regarding the nature of the arbitration proceedings below, 

and their misrepresentations of the precedent regarding inapplicable statutes of limitation and the 

enforceability of the APFA Constitution in federal court. 

PLAINTIFFS’ MISSTATEMENTS OF THE RECORD 

1. Plaintiffs continue to misrepresent the nature of the arbitration proceedings below as 

“a union disciplinary award” (Ross Doc. 65, p. 1; Vargas Doc. 63, p. 1). That misrepresentation 

is then repeated later in their submission: “The union ... failed to prove it filed the internal 

charges within the 60-day time limit required by the APFA Constitution” (Ross Doc. 65, p. 5; 

Vargas Doc. 63, p. 5). The proceedings below were internal charges filed by union members and 

the union was not a party to those proceedings, according to both the undisputed record and the 

Court’s decision dismissing their attempts to vacate the arbitrator’s award (October 27, 2022 

Orders: Ross Doc. 53; Vargas Doc. 52). 

2. Plaintiffs also claim that the APFA Constitution is only a contract “between members 

and the National Union” (Ross Doc. 65, p. 7; Vargas Doc. 63, p. 7). LMRA Section 301(a), 29 

U.S.C. §185(a), the applicable federal statute, provides that the APFA Constitution is a judicially 

3

In their original oppositions to APFA’s summary judgment, filed six weeks ago, and in contrast to their 

newly-devised contentions, Plaintiffs’ argued (i) that the arbitrator’s decisions were union disciplinary 

proceedings not third-party arbitration decisions; (ii) that the facts were in dispute; and (iii) that there 

were legal deficiencies in the APFA’s breach of fiduciary allegations. (Ross Doc. 52-1, pp.11-19; Vargas 

Doc. 53-1, pp.11-19). Plaintiffs are not allowed to submit new arguments -- at this late date and without 

the Court’s permission -- and, if not stricken, the moving party should be afforded an opportunity to 

respond by the Court’s leave file a surreply. See APFA’s motions to file surreply briefs filed 

contemporaneously herewith at pages 3-4. (See also Ross Doc. 62; Vargas Doc. 61 re APFA’s motions 

for leave to file surreplies re Plaintiffs’ motions to vacate court orders and amend complaints). 
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enforceable “contract[ ] ... between any such labor organizations,” a long settled axiom of law at 

least according to the Supreme Court. United Ass’n of Journeymen v. Local 334, 452 U.S. 615, 

622 (1981); Wooddell v. Int’l Bhd. of Elec. Workers, 502 U.S. 93, 99, 101 (1991).4

MISREPRESENTATIONS OF LAW 

Ross and Vargas have invented several brand new legal arguments in support of 

dismissing APFA’s counterclaims which do not address any arguments previously made by 

APFA (Ross. Doc. pp. 2-8; Vargas Doc. pp. 2-8). Apart from improperly raising new legal 

arguments to which APFA has not any opportunity to respond, these post hoc arguments are 

based on glaring mischaracterizations of the holdings in the trilogy of new cases they offer for 

the first time in their respective reply briefs: Stewart v. Intl. Assn of Machinists & Aerospace 

Workers, 16 F. Supp. 3d 783 (S.D. Tex. 2014); Lee v. Cytec Industries, Inc., 460 F. 3d 673 (5th

Cir. 2006); and Adams-Lundy v. APFA, 792 F.2d 1368 (5th Cir. 1994).

1. Plaintiffs rely upon Stewart v. Int’l Ass’n of Machinists, 16 F. Supp. 3d 783 (S.D.

 Tex. 2014), for the proposition that a Texas state statute of limitations is a bar to APFA’s 

allegations of breach of fiduciary duty under federal law, specifically LMRDA Section 501(a), 

29 U.S.C. §501(a) (Ross Doc. 65, pp. at 3-4; Vargas Doc. 63, pp. 3-4). This is a complete 

misstatement of settled precedent. As previously noted (Ross Doc. 60, fn. 5; Vargas Doc. 59, fn. 5), 

LMRDA Section 501(a) breach of fiduciary duty claims are equitable in nature and governed by 

the doctrine of laches not any statute of limitations. Iron Workers Local 92 v. Norris, 383 F. 2d 

735, 741 (5th Cir. 1967). 

4 See argument and cases cited in APFA’s briefs in support of motion for summary judgment (Ross Doc. 

43, pp. 6-7; Vargas Doc. 44, pp. 6-7); APFA’s responses/briefs to motions to vacate Court’s Orders of 

Dismissal (Ross Doc. 58, pp. 2-3; Vargas Doc. 57, pp. 2-3); and APFA’s responses/briefs to motions to 

dismiss counterclaims (Ross Doc. 60, pp. 4-5; Vargas Doc 59, pp. 4-5). 
4 

Moreover, Ross and Vargas’s reliance on the Stewart decision is premised upon a 

misreading -- if not misrepresentation -- of the Court’s actual holding in that case. Plaintiffs 

wrongly assert to the Court that Stewart “held that a § 501 of LMRDA claim for breach of 

fiduciary duty [was] barred because ‘[i]n Texas, the statute of limitations for a claim of breach of 

fiduciary duty is four years’” (Ross Doc 65, p. 2; Vargas Doc. 63, p. 2). To the contrary, the 

Stewart court interpreted Texas state law and never mentioned, let alone made any ruling, 

regarding any purported limitations period applicable to LMRDA Section 501(a) claims. 

Stewart, 16 F.Supp.3d at 794-95. 

2. The next post hoc citation is offered by Plaintiffs to supplement their 

attempts to avoid enforcement of the arbitration awards against them on statute of limitation 

grounds is Lee v. Cytec Industries, Inc., 460 F. 3d 673 (5th Cir. 2006) ((Ross Doc. 65, pp. 3-5; 

Vargas Doc. 63, pp.3-5). This decision is likewise easily distinguishable as it involved a 

grievance filed by a union under a collective bargaining agreement with a specifically prescribed 

time limit for filing such grievances, not a timely suit for enforcement of a “final and binding” 

arbitration decision. 460 F. 3d at 674. 

Moreover, in citing Lee v. Cytec Industries, Ross and Vargas have mischaracterized the 

nature of APFA’s counterclaim under LMRA §301. APFA is not a seeking the Court’s 

adjudication of Plaintiffs’ original misconduct in violation of the APFA Constitution, which goes 

to the merits of the charges against them and has been addressed in the decisions and orders by 

the arbitrator. Instead, APFA’s counterclaims seek to remedy Plaintiffs’ refusal to comply with 

the arbitrator’s “final and binding” decisions and orders, in violation of the APFA Constitution, 

through judicial enforcement of the arbitrator’s decisions pursuant to § 301(a) of the LMRA. 

3. Plaintiffs’ third offer of new precedent is their baseless contention that the Fifth 

Circuit’s decision in Adams-Lundy v. APFA, 792 F.2d 1368 (5th Cir. 1994), somehow deprives 
5 

the Court of jurisdiction to enforce the arbitration decisions against them (Ross Doc. 65, pp.6-6; 

Vargas Doc. 63, pp. 5-6). Plaintiffs have ignored, and made no attempt to dispute APFA’s 

recent showing that the jurisdictional basis for enforcing the arbitration decisions against Ross 

and Vargas is LMRA Section 301(a), that Adams-Lundy decision only addressed jurisdiction 

asserted under Section 101 of the LMRDA, 29 U.S.C. §411, and never even considered, let alone 

purported to interpret LMRA Section 301(a). 792 F.2d at 1370.5

CONCLUSION 

The most recent submissions by Plaintiffs are eleventh-hour attempts to reconstruct their 

positions in the hope of avoiding enforcement of the arbitration decisions against them, long 

after all of the relevant pleadings regarding summary judgments enforcing those decisions have 

been submitted to the Court. Ross and Vargas have repeatedly misrepresented the undisputed 

and well documented record and mis-cited the applicable precedents, as shown above, without 

acknowledging, much less disputing APFA’s prior demonstration of many of those 

misstatements. The arbitration decisions against Ross and Vargas should therefore be enforced. 

Date: December 19, 2022 Respectfully Submitted, 

/s/ Sanford R. Denison

SANFORD R. DENISON 

Tex. Bar No. 05655560 

Baab & Denison, LLP 

6301 Gaston Ave., Suite 1403 

Dallas, TX 75214 

Tel.: (214) 637-0750; Fax.: (214) 637-0730 

Email: denison@baabdenison.com 

5Martin v. Local 556, Transp. Workers of America, 2014 U.S. Dist. LEXIS 122755, 2014 WL 

4358480 at *8-9 (N.D. Tex. 2014) (J. Fitzwater), yet another newly mis-cited decision by 

Plaintiffs (see Ross Doc. 64, p. 3 fn. 4, Vargas Doc. 62, p. 3 fn. 4), is also inapposite given the 

Court’s observation in that case that Section 301(a) jurisdiction did not exist “... because, an 

alleged violation of a labor contract violation is necessary to support subject matter jurisdiction 

and plaintiffs have not alleged such a violation...,” in contrast to the specifically alleged refusals 

to comply with “final and binding” arbitrations in violation of LMRA Section 301(a) in this case.
6 

WILLIAM W. OSBORNE, JR.* 

D.C. Bar No. 912089 

Osborne Law Offices P.C. 

5335 Wisconsin Avenue N.W., Suite 440 

Washington, D.C. 20015 

Tel.: (202) 243-3200; Fax: (202) 686-2977 

Email: b.osborne@osbornelaw.com 

Counsel for Defendant Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris 

*Admitted Pro Hac Vice

CERTIFICATE OF SERVICE 

I certify that on this 19th day of December, 2022 a true and correct copy of the foregoing 

document was served on the below listed counsel of record by a means permitted by Rule 5(b)(2) 

of the Federal Rules of Civil Procedure (“F.R.C.P.”). 

KERRI PHILLIPS 

HEATHER ABREU 

K.D. Phillips Law Firm, PLLC 

5700 Tennyson Parkway, Suite 300 

Plano, Texas 75024 

Phone: (972) 327-5800 

Fax: (940) 400-0089 

Email: kerri@KDphillipslaw.com 

Email: Heather@KDphillipslaw.com 

MICHAEL R RAKE 

Michael R. Rake, Attorney at Law 

PO Box 1556 

Lake Dallas, TX 75065 

Tel.: (940) 498-2103 

Fax: (940) 498-2103 

Email: mrake1@mrakeattorney.com 

/s/ Sanford R. Denison

SANFORD R. DENISON