2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-2011

Michael Zurawski v. SEPTA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3062

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Recommended Citation

"Michael Zurawski v. SEPTA" (2011). 2011 Decisions. Paper 699.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3062

___________

MARK DENNIS ZURAWSKI,

Appellant

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-08-cv-05040)

District Judge: Honorable William H. Yohn

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 5, 2011

Before: SCIRICA, SMITH AND VANASKIE, Circuit Judges

(Opinion filed August 5, 2011)

___________

OPINION

___________

PER CURIAM

Mark Zurawski, proceeding pro se, appeals from the District Court order 

dismissing under Federal Rule of Civil Procedure 12(b)(6) his petition for review under 

the Railway Labor Act (“RLA”). For the reasons that follow, we will affirm.
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I

Zurawski was previously employed by the Southeastern Pennsylvania 

Transportation Authority (“SEPTA”). He was terminated in 2007 after an altercation 

with a coworker. Zurawski filed a grievance challenging his termination and, pursuant to 

the collective bargaining agreement between his union and SEPTA, an arbitration was 

held. The arbitration board consisted of three board members: one chosen by SEPTA, 

one chosen by the union, and a neutral arbitrator, Robert Douglas, from the Special Board 

of Adjustment. After a hearing, the board upheld Zurawski‟s termination. The unionchosen arbitrator dissented.

Zurawski then filed in the District Court a complaint against Douglas, which he 

then amended to include SEPTA and several other defendants, in which he argued that 

the arbitration decision was tainted by “fraud or corruption.” After dismissing all 

defendants except for SEPTA, the District Court construed the complaint as a petition for 

review under the RLA, pursuant to 45 U.S.C. § 153 First (q), and Zurawski filed a second 

amended petition through counsel. SEPTA filed a motion to dismiss, which the District 

Court granted. Although still represented by counsel, Zurawski filed a pro se motion to 

reconsider. The District Court ordered the motion stricken because it was submitted in 

violation of the Court‟s prohibition on hybrid representation and, in the alternative, 

meritless. Zurawski timely appealed.

II

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the 

District Court‟s order dismissing Zurawski‟s complaint. See Dique v. N.J. State Police, 
3

603 F.3d 181, 188 (3d Cir. 2010). “In deciding a motion to dismiss, all well-pleaded 

allegations of the complaint must be taken as true and interpreted in the light most 

favorable to the plaintiffs, and all inferences must be drawn in favor of them.” McTernan 

v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal citation and quotation marks 

omitted). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain 

sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on its 

face.‟” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Id. A 

petitioner may obtain relief under section 153 of the RLA only in three narrow 

circumstances. That is, he must demonstrate that: (1) the arbitrators failed to comply 

with the RLA; (2) the arbitration board acted outside of its jurisdiction; or (3) a member 

of the arbitration board engaged in fraud or corruption. See United Steelworkers of Am. 

Local 1913 v. Union R.R. Co., 648 F.2d 905, 910 (3d Cir. 1981) (citing Union Pacific 

R.R. v. Sheehan, 439 U.S. 89, 93 (1978) (per curiam)). “Fraud properly embraces a 

situation in which the supposedly neutral arbitrator exhibits a complete unwillingness to 

respond, and indifference, to any evidence or argument in support of one of the parties‟ 

positions.” Pac. & Arctic Ry. & Navigation Co. v. United Transp. Union, 952 F.2d 1144, 

1148 (9th Cir. 1991).

Zurawski raises four main arguments on appeal. His first two claims are that the 

SEPTA-chosen arbitrator engaged in fraud or corruption, and that the arbitration board 

exceeded its jurisdiction because it issued a decision despite running afoul of the 
4

collective bargaining agreement between SEPTA and Zurawski‟s union. SEPTA argues 

that these claims were not raised before the District Court, and are therefore waived on 

appeal. “Absent compelling circumstances[,] [we] will not consider issues that are raised 

for the first time on appeal.” Shell Petroleum, Inc. v. United States, 182 F.3d 212, 219 

(3d Cir. 1999) (quoting Patterson v. Cuyler, 729 F.3d 925, 929 (3d Cir. 1984)). Although 

we are mindful of our obligation to construe pro se filings liberally, see Giles v. Kearney, 

571 F.3d 318, 322 (3d Cir. 2009), Zurawski was represented by counsel in the District 

Court, and he has presented no compelling reasons why he should be allowed to raise 

new arguments at this stage. Accordingly, we will not address his first two arguments.1

Zurawski‟s third argument is that Douglas, who endorsed a settlement agreement 

before the arbitration hearing began, improperly “punished” Zurawski for refusing the 

settlement agreement by ruling against him at the arbitration. This argument is presented 

somewhat differently on appeal than in the petition for review, but, assuming it is 

properly before this Court, we conclude that Zurawski failed to state a claim upon which 

relief can be granted. Beyond his conclusory allegations, Zurawski has offered no factual 

support for his allegation that Douglas “punished” or retaliated against him. Iqbal

requires more. See 129 S. Ct. at 1949.

Next, Zurawski argues that Douglas‟s conduct amounted to a deprivation of due 

 

1

 Zurawski‟s second argument arguably includes the claim, raised in his petition for 

review, that the arbitration board engaged in fraud or corruption by allowing new

witnesses to testify. In Zurawski‟s view, the board thus violated the collective 

bargaining agreement. To that end, such conduct plainly does not constitute “a 

complete unwillingness to respond, and indifference, to any evidence or argument.”
5

process. At the outset, we decline Zurawski‟s invitation to revisit our decision in United 

Steelworkers of America Local 1913 v. Union Railroad Co., 648 F.2d 905 (3d Cir. 1981), 

in which we held that judicial review of an arbitration board‟s award is limited to the 

three narrow categories set forth in § 153 First (q), thus precluding an analysis of whether 

an arbitration board comported with due process. See id. at 911. Although Zurawski 

correctly notes that the Supreme Court identified a difference of opinion among the 

courts of appeals concerning the question whether a constitutional right to due process 

constitutes a basis for judicial review over arbitration board awards, see Union Pac. R.R. 

Co. v. Bhd. of Locomotive Eng‟rs & Trainmen Gen. Comm. of Adjustment, Cent. 

Region, 130 S. Ct. 584, 593 & n.4, 595-96 (2009), the Court declined to resolve that 

question in that case. Accordingly, our prior precedent is binding. See 3d Cir. IOP 9.1.

Nevertheless, we may evaluate Zurawski‟s arguments to the extent that he appeals 

from the District Court‟s determination that he failed to state a claim regarding Douglas‟s 

participation in fraud or corruption. Specifically, Zurawski argues that Douglas 

improperly: afforded SEPTA significantly more time to put on its case than he received; 

failed to advise him of his right to independent counsel; refused to conduct an executive 

session before the arbitration hearing to resolve outstanding issues; and refused to allow

Zurawski to access information in SEPTA‟s files that would have substantiated some of 

his arguments. We need address only the first two arguments, as the latter two were not 

raised in the District Court. See Shell Petroleum, 182 F.3d at 219.

As to his first claim, Zurawski contended that SEPTA was given five hours to 

present its case, yet he was given only one hour to testify and present a closing argument, 
6

and was told that if he wanted more time, he would have to wait several months for the 

next available meeting time. As the District Court noted, Zurawski‟s complaint and 

accompanying exhibits demonstrated that he was afforded enough time to present his 

testimony and his closing arguments. However, in his closing statement, Zurawski

alluded to workplace problems that had not been explored during the hearing. Allowing 

Zurawski to pursue that argument would have resulted in permitting SEPTA to call 

additional witnesses in rebuttal. Accordingly, Douglas advised Zurawski that, because 

time was short, he could address these newly-identified problems only if he was willing 

to allow the proceedings to extend into another day. However, Douglas noted that the 

next available hearing date would not be until approximately five months later. Given 

these two options, Zurawski opted to conclude his arguments rather than delay the matter. 

Viewing these facts in the light most favorable to Zurawski, we are unable to conclude 

that he alleged facts indicating that Douglas exhibited “a complete unwillingness to 

respond” to his arguments.

Finally, we turn to Zurawski‟s claim that the arbitration board improperly failed to 

advise him of the right to independent counsel. As the District Court reasoned, the RLA 

does not require that a litigant be advised of his right to counsel. See United 

Steelworkers, 648 F.2d at 912. Nor did Zurawski allege that the collective bargaining 

agreement between SEPTA and the union required that he be so advised. Thus, he failed 

to sufficiently allege a violation of the RLA, and the District Court appropriately 

dismissed the petition for review.

Accordingly, we will affirm.