IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-11098

GAVIN MACKENZIE, individually and on behalf of those similarly situated; 

MARK BURNETT, individually and on behalf of those similarly situated, 

 Plaintiffs - Appellants

v.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL; ALLIED PILOTS 

ASSOCIATION; AMERICAN AIRLINES, INCORPORATED; AMERICAN 

EAGLE AIRLINES, INCORPORATED, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CV-2043

Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit 

Judges.

PER CURIAM:*

Plaintiffs-Appellants Gavin Mackenzie and Mark Burnett (collectively, 

Appellants) brought this proposed class action pro se under the Railway Labor 

Act, 45 U.S.C. § 151 et seq., seeking declaratory relief from an arbitrator’s 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 23, 2014

Lyle W. Cayce

Clerk

 

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remedy award. Appellants claimed that the arbitrator’s remedy opinion and 

award should be vacated on the ground that the arbitrator exceeded the scope 

of his jurisdiction in fashioning the award. Defendants-Appellees American 

Airlines, Inc., American Eagle Airlines, Inc., and Air Line Pilots Association 

(collectively, Appellees)1 filed a motion to dismiss. The district court granted 

the motion, concluding that the arbitrator did not exceed the scope of his 

jurisdiction in deciding the remedial issue before him. Because we hold that 

Appellants lack standing to challenge the arbitrator’s award, the appeal is 

DISMISSED.

I.

This case arises out of a complex, four-party collective bargaining 

agreement. The four parties to the agreement were American Airlines 

(American); American Eagle Airlines (Eagle); Allied Pilots Association (APA),

the union representing American’s pilots; and Air Line Pilots Association 

(ALPA), the union representing Eagle’s pilots. Appellants are individual pilots 

for Defendant-Appellee Eagle. As such, they were represented in contract and 

employment matters with the airlines by their pilots’ union, ALPA.

In 1997, American pilots called a strike against American, prompting 

President Clinton to invoke provisions of the Railway Labor Act (RLA) that 

required the affected parties to resolve their issues through mediation. The 

negotiations between representatives from each party resulted in a 

supplemental agreement known as Letter 3/Supplement W (Letter 3). Under 

Letter 3, Eagle pilots could move up, or flow through, to positions in American 

as they came available. Further, American pilots could move down to Eagle in 

the event that they were furloughed. Letter 3 provided procedures by which 

1 Though Allied Pilots Association was a named defendant, it did not join the other 

Defendants-Appellees in their motion to dismiss and it has not presented any argument on 

appeal. 

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disputes arising under its terms were to be resolved. American, Eagle, APA,

and ALPA were specifically named as parties to these dispute resolution 

procedures. The parties agreed to submit any grievance concerning the 

interpretation or application of Letter 3 to arbitration. 

In 2003, a dispute arose as to whether Trans World Airline (TWA) pilots, 

recently acquired through a merger between American and TWA, were “new 

hires” under Letter 3. ALPA filed a grievance and the dispute was submitted 

to an arbitrator, who concluded that the TWA pilots were new hires under the 

terms of Letter 3. The arbitrator declined to resolve the issue of whether Eagle 

pilots were entitled to positions in training classes at American instead of the 

TWA pilots designated as new hires, concluding that he lacked jurisdiction to 

provide the appropriate answer. 

In 2008, ALPA filed a grievance to resolve this issue, which was 

submitted to arbitration proceedings before Arbitrator Nicolau. Nicolau found 

in favor of the Eagle pilots, concluding that they were entitled to the training 

classes at American. He remanded the issue of the appropriate remedy to the 

parties, but retained jurisdiction in the event that the parties could not agree 

on the proper remedy. When the parties were unable to agree on the 

appropriate remedy, they submitted the issue to Nicolau to resolve. 

After considering the parties’ arguments, prior arbitration awards, 

witness testimony, the evidence presented, and the competing equities, 

Nicolau issued a remedy opinion and award. The award provided the 

following: (1) 286 Eagle pilots were required to irrevocably elect whether to 

move up to American by May 24, 2010; (2) American was required to recall 

furloughed TWA pilots after the first 35 Eagle pilots moved up to American

but before the remaining 251 Eagle pilots moved up; and (3) the affected 

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parties were required to enter into a preferential hiring agreement to cover the 

824 Eagle pilots without American seniority numbers.2 

Appellants filed suit against Appellees in district court seeking to set 

aside Nicolau’s remedy opinion and award. Appellees filed a motion to dismiss, 

which the district court granted. After conducting its review of the arbitrator’s 

decision, the district court held that Arbitrator Nicolau acted within the scope 

of his jurisdiction in fashioning the proper remedy. 

Appellants timely appealed.3 On appeal, Appellants seek vacatur of the 

arbitrator’s remedy award, arguing: (1) the arbitrator exceeded his jurisdiction 

in making the award, or alternatively (2) the arbitrator improperly considered 

off-the-record evidence in violation of due process. 

II.

Although neither party raised the issue of Appellants’ standing to bring 

this appeal, we may raise the issue sua sponte. See S.E.C. v. Forex Asset Mgmt., 

LLC, 242 F.3d 325, 328 (5th Cir. 2001). If Appellants lack standing to bring 

this appeal, we lack the jurisdiction to decide the merits of this case. In re 

Weaver, 632 F.2d 461, 462 n.6 (5th Cir. 1980). 

The court raised the issue of Appellants’ standing during oral argument. 

In response to the court’s inquiry on the issue of standing, Appellees asserted 

that our decision in Mitchell v. Cont’l Airlines, Inc., 481 F.3d 225 (5th Cir.),

cert. denied 552 U.S. 821 (2007), deprived Appellants of standing as a matter 

of law. We agree.

2 At the time of Nicolau’s ruling, there were 1351 captains: 527 had American seniority 

numbers and 824 did not. 

3 The Appellants’ appeal was stayed after American entered into bankruptcy in 

November 2011. 

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In Mitchell, individual flight attendants brought an action against their 

airline and union, seeking vacatur of an arbitral award. Id. at 230. There, 

relying upon precedent in cases governed by similar federal labor statutes, the 

court held:

[W]hen a CBA formed pursuant to the RLA establishes a 

mandatory, binding grievance procedure and vests the union with 

the exclusive right to pursue claims on behalf of aggrieved 

employees, an aggrieved employee whose employment is governed 

by the CBA lacks standing to attack the results of the grievance 

process in court—the sole exception being the authorization of an 

aggrieved employee to bring an unfair representation claim.

Id. at 233. The court reasoned that such a holding was “necessary to effectuate 

the purposes behind federal labor statutes, which require that the interests of 

particular individuals be subordinated to the interests of the group at the 

contract-negotiation stage and beyond.” Id. at 232. Consequently, “an 

aggrieved employee will generally lack standing to bring an RLA action.” Id.

at 233 n.24.

Letter 3 establishes a mandatory, binding dispute resolution procedure. 

Additionally, Letter 3 governs Appellants’ employment at Eagle. Finally, by 

failing to pursue a duty of fair representation claim, Appellants cannot avail 

themselves of the “sole exception” prescribed by Mitchell. Appellants attempt 

to distinguish Mitchell by asserting that Letter 3 does not vest the union with 

the exclusive right to pursue claims on their behalf.4 We disagree. Letter 3

4 Appellants also argued during oral argument that they have standing pursuant to 

the plain language of 45 U.S.C. § 153 First(q), which provides that “[i]f any employee or group 

of employees . . . is aggrieved by any of the terms of an award[,] . . . then such employee or 

group of employees . . . may file in any United States district court . . . a petition for review 

of” the award. Appellants’ argument finds support in McQuestion v. N.J. Transit Rail 

Operations, 892 F.2d 352, 354–55 (3d Cir. 1990), which held that the plain language of § 153 

First(q) provides individual employees with uniquely individual grievances standing to seek 

judicial review under the RLA. Nevertheless, Appellants’ argument is unavailing. In 

Mitchell, we distinguished McQuestion, determining that it may support providing standing 

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specifically names American, Eagle, APA, and ALPA as the parties to the 

dispute resolution procedures. Moreover, Appellants state in their complaint 

that ALPA is the “certified collective bargaining agent” and “representative” of 

Eagle pilots. We therefore hold that Appellants lack standing to challenge the 

arbitration award. See Mitchell, 481 F.3d at 233. Accordingly, we do not reach 

the merits of Appellants’ claims. 

III.

For the reasons herein stated, the appeal is DISMISSED. 

to individual employees with “uniquely individual claims,” but that its reasoning did not 

support standing where, as here, the employees’ union pursued arbitration on behalf of all 

its members. Mitchell, 481 F.3d at 233 n.24. 

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