F I L E D

United States Court of Appeals

Tenth Circuit

MAR 22 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM K. KINROSS,

Plaintiff-Appellee,

v.

UTAH RAILWAY COMPANY, a

Utah Corporation,

Defendant-Appellant.

No. 02-4192

Appeal from the United States District Court

for the District of Utah

(D.C. No. 01-CV-10-BSJ)

David S. Kunz (Brad C. Smith with him on the brief) of Stevenson & Smith, P.C.,

Ogden, Utah, for Plaintiff-Appellee.

Matthew N. Evans (Richard D. Flint with him on the briefs) of Holme, Roberts &

Owen LLP, Salt Lake City, Utah, for Defendant-Appellant.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,

Circuit Judge.

BRORBY, Senior Circuit Judge.
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Utah Railway Company appeals a district court order granting summary

judgment against it and in favor of its former employee, William Kinross. The

district court held Mr. Kinross did not receive due process in the course of an

Arbitration Board’s review of his wrongful termination claim. We exercise

jurisdiction under 28 U.S.C. § 1291, reverse the district court, and remand the

case for further proceedings.

Background

Mr. Kinross worked for Utah Railway for twenty-one years and was a

member of the United Transportation Union. Sometime in 1998, he inquired

about purchasing railroad ties from Utah Railway. A Utah Railway representative

told him to talk to a section foreman. The section foreman told Mr. Kinross he

could “have” five or six ties, and when Mr. Kinross asked about the price, the

foreman asked for some cold Pepsi. Mr. Kinross delivered a six-pack of Pepsi

and took the ties to his home.

In April 1998, a large number of railroad ties were reported missing from

the railyard. Utah Railway officials went to the homes of employees and

discovered Utah Railway ties in Mr. Kinross’ yard. Several days later, the section
1

 It is unclear from witness testimony when the foreman took ties.

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foreman confessed to taking ties himself1 and resigned immediately.

As required by a collective bargaining agreement, Utah Railway conducted

an investigation and held a hearing relating to Mr. Kinross’ conduct. Mr. Kinross

explained he inquired about and received four to six ties in 1998, and admitted he

did not have a “notice of sale” or “certificate of purchase” from Utah Railway. 

Other Utah Railway employees testified to seeing Utah Railway ties at Mr.

Kinross’ house. They identified the ties as Utah Railway’s based on backhoe

markings unique to the carrier. At the conclusion of the investigation and

hearing, Utah Railway terminated Mr. Kinross. With Union assistance, Mr.

Kinross unsuccessfully appealed his termination to a Utah Railway Executive

Vice President.

Mr. Kinross thereafter sought a Special Board of Adjustment review of

whether just cause supported his termination pursuant to § 153 of the Railway

Labor Act, 45 U.S.C. §§ 151 - 163, 181 - 188. As the Act provides, the Board

included one neutral member, one Union member, and one Utah Railway member. 

Id., § 153(f). The record before the Board included the termination hearing
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transcript and written submissions from Mr. Kinross and Utah Railway. One of

Utah Railway’s submissions suggested Mr. Kinross may have been involved in a

larger railroad tie theft conspiracy, but noted the section foreman admitted to

appropriating ties for his own use.

In a written decision, the Board determined just cause supported Mr.

Kinross’ termination. It first noted section foremen do not have the authority to

authorize the sale of ties to employees, and an employee who wishes to purchase

ties must obtain a document certifying the nature of the property sold, the amount

purchased, the purchase price, and identifying the prospective location of the

property. The Board then found Mr. Kinross received ties from the section

foreman in exchange for a six-pack of Pepsi. Relying on testimony from Utah

Railway representatives and Mr. Kinross, the Board concluded Mr. Kinross

obtained ties “without authorization from anyone other than the Section

Foreman.” The Board’s decision did not reference the Utah Railway submission,

state it relied on that submission, or in any other way indicate Mr. Kinross

participated in a conspiracy to obtain railroad ties. The Union Board member did

not support the conclusion.

Mr. Kinross sought judicial review of the Board’s determination in the
2

 In so finding, the district court determined the Board must have

impermissibly considered both the testimony and the submission about an April

theft because the Board found Mr. Kinross exchanged the Pepsi for railroad ties

in April, and not in February as Mr. Kinross’ transcript testimony seems to

indicate. However, we note several witnesses referred to the April theft because

it merely instigated the investigation and discovery of railroad ties on Mr.

Kinross’ property, which he admitted he took without cash payment or the

necessary receipt or certificate. This may explain the Board’s finding that the

ties, which Mr. Kinross admittedly took at some point in 1998, occurred in April.

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United States District Court for the District of Utah. He claimed the Board (1)

failed to confine itself to matters within its jurisdiction; (2) failed to afford him

due process; and (3) acted in a fraudulent and corrupt manner.

The district court denied Utah Railway’s motion for summary judgment

based on its determination Mr. Kinross did not receive due process. It found the

Board improperly considered testimony concerning the ties reported missing in

April, and Utah Railway’s “ex parte” submission that falsely implied Mr. Kinross’

involvement in the April events.2 It stated such information possibly biased the

neutral Board member, “and at the very least, unfairly infect[ed] the proceedings

with needless confusion.”

The district court subsequently granted Mr. Kinross’ motion for summary

judgment and vacated the Board’s award. It ordered further arbitration
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proceedings under the Railway Labor Act before an Adjustment Board composed

of different members. It suggested the parties submit a stipulated statement of

facts, excluding any reference to the ties reported missing in April. If the parties

could not agree on stipulated facts, the court ordered the Board to conduct a de

novo hearing and exclude any reference to the April missing ties incidents.

Utah Railway appeals this order, raising three arguments. First, it believes

the district court erred in holding due process is a fourth independent ground for

reviewing a decision of the Adjustment Board pursuant to the Railway Labor Act,

and thereby implies the district court exceeded its subject matter jurisdiction. 

Second, even if due process is a proper ground for review, it argues the district

court improperly exceeded its jurisdiction in making independent factual findings

and evidentiary rulings and erred in holding Mr. Kinross did not receive due

process. Finally, it claims the district court improperly exceeded its jurisdiction

by ordering an entirely new hearing before a newly constituted Board, and in

directing the specific manner in which the new proceeding is to be conducted.

Standard of Review

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Simms v. Oklahoma,
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165 F.3d 1321, 1326 (10th Cir.), cert. denied, 328 U.S. 815 (1999). Summary

judgment is appropriate if “there is no genuine issue as to any material fact and ...

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). We likewise review the district court’s subject matter jurisdiction de novo. 

See Robinson v. Union Pac. R.R., 245 F.3d 1188, 1191 (10th Cir. 2001).

Discussion

We must first address whether the district court exceeded its subject matter

jurisdiction in reviewing the Board’s decision for a due process violation. Utah

Railway claims the district court erroneously held a due process violation is

grounds for judicial review of an Arbitration Board determination. It believes

federal courts may only review claims that fall within the three categories stated

in the Railway Labor Act, and no independent due process grounds for review

exist. It believes due process considerations are included within the structure of

the Railway Labor Act itself.

“Since federal courts are courts of limited jurisdiction, we presume no

jurisdiction exists absent an adequate showing by the party invoking federal

jurisdiction.” United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190

F.3d 1156, 1160 (10th Cir.1999). The Railway Labor Act sets out three grounds
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for judicial review of an Adjustment Board’s decision: (1) failure of the Board to

comply with the Railway Labor Act’s requirements; (2) failure of the Board to

conform or confine itself to matters within the scope of its jurisdiction; and (3)

fraud or corruption of a Board member. 45 U.S.C. § 153(q).

In Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89 (1978), the Supreme

Court considered whether federal courts could consider other claims of error

arising from Adjustment Board proceedings. In Sheehan, this circuit had ruled an

Adjustment Board’s failure to consider a plaintiff’s equitable tolling argument

deprived him “‘of an opportunity to be heard in violation of his right to due

process.’” Id. at 91-92 (quoting Union Pac. R.R. Co. v. Sheehan, 576 F.2d 854,

857 (10th Cir. 1978)). The Supreme Court reversed our decision, stating:

If the Court of Appeals’ remand was based on its view that the

Adjustment Board had failed to consider respondent's equitable

tolling argument, the court was simply mistaken. The record shows

that respondent tendered the tolling claim to the Adjustment Board,

which considered it and explicitly rejected it.... If, on the other hand,

the Court of Appeals intended to reverse the Adjustment Board’s

rejection of respondent’s equitable tolling argument, the court

exceeded the scope of its jurisdiction to review decisions of the

Adjustment Board.

Id. at 92-93. After listing the three grounds for judicial review under the Railway

Labor Act, The Court held “[o]nly upon one or more of these bases may a court

set aside an order of the Adjustment Board.” Id. at 93. It emphasized “[t]he
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dispositive question is whether the party’s objections to the Adjustment Board’s

decision fall within any of the three limited categories of review provided for in

the Railway Labor Act.” Id. The Court made it clear an Arbitration Board

decision “may be set aside only for the three reasons specified [in the Railway

Labor Act]. We have time and again emphasized that this statutory language

means just what it says.” Id. (emphasis added).

We note a split exists among the circuits on whether Sheehan precludes

federal review of Arbitration Board decisions on due process grounds other than

the three permitted by the statute. The Second, Fifth, Seventh, Eighth and Ninth

Circuits have held federal courts may review due process claims arising from

Adjustment Board decisions. See Shafii v. PLC British Airways, 22 F.3d 59, 64

(2d Cir. 1994) (holding a Board decision is “reviewable upon a claim that a

participant was denied due process by the Board”); Atchison, Topeka and Santa

Fe Ry. Co. v. United Transp. Union, 175 F.3d 355, 357 (5th Cir. 1999) (stating

“[t]his Court has recognized a fourth basis for setting aside an award, in cases

where the award failed to meet the requirements of due process”); Pokuta v.

Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999) (explaining “we

have recognized a fourth category of objections that supply jurisdiction over the

award – an allegation that a party was denied due process”); Goff v. Dakota,
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Minnesota & E. R.R. Corp., 276 F.3d 992, 997 (8th Cir. 2002) (concluding “[i]n

addition to the statutorily created parameters of review, courts have recognized

that railroad arbitration decisions are reviewable for possible due process

violations”); English v. Burlington N. R.R. Co., 18 F.3d 741, 744 (9th Cir. 1994)

(stating “a constitutional challenge is a permissible fourth ground by which a

federal court can review an adjustment board decision”).

On the other hand, the Third, Sixth, and Eleventh Circuits have held

Sheehan precludes federal courts from reviewing due process claims under the

Railway Labor Act. See United Steelworkers of Am. Local 1913 v. Union R.R.

Co., 648 F.2d 905, 911-12 (3d Cir. 1981) (discussing Sheehan and then declining

to consider a due process claim not falling into the Railway Labor Act’s three

categories of review); Henry v. Delta Air Lines, 759 F.2d 870, 873 (11th Cir.

1985) (stating “Sheehan precludes judicially created due process challenges to

System Board awards”); Jones v. Seaboard Sys. R.R., 783 F.2d 639, 642 n.2 (6th

Cir. 1986) (explaining “[i]n Sheehan, the Supreme Court reversed the Tenth

Circuit’s holding that denial of due process was an additional basis for judicial

review”).

Like these three circuits, we read Sheehan to preclude judicial review of
3

 We believe the Railway Labor Act itself provides for process sufficient to

meet constitutional requirements. “Due process is flexible and calls for such

procedural protections as the particular situation demands.” Morrissey v. Brewer,

408 U.S. 471, 481 (1972). To satisfy due process requirements, a tribunal must

not act outside its jurisdiction, and it must be impartial, see Goldberg v. Kelly,

397 U.S. 254, 271 (1970). Most importantly, a tribunal must ensure an

“opportunity to be heard at a meaningful time and in a meaningful manner.” 

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation marks and citation

omitted).

Congress provided sufficient process to meet these due process

requirements when it set forth the three grounds for judicial review in 45 U.S.C.

§ 153(q). First, Congress allowed for review of the Board’s failure to comply

with the requirements of the Railway Labor Act, including procedural

requirements ensuring claimants an opportunity to present evidence and argue

their case. Second, it allowed for review of the Board’s failure to confine itself

to matters within its jurisdiction. Finally, it allowed for review for fraud or

corruption on the part of the Board, which ensures an impartial tribunal. In short,

the Railway Labor Act itself provides for sufficient procedural due process within

its own boundaries.

In the instant case, the district court improperly operated outside the

bounds of these three grounds for judicial review by evaluating the scope of the

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due process claims beyond those specifically articulated in the Railway Labor

Act. The Sheehan Court repeatedly stated the three grounds set out in the statute

are the only grounds for judicial review. See Sheehan, 439 U.S. at 92-93. As the

Court observed, “Congress considered it essential to keep ... so-called ‘minor’

disputes within the Adjustment Board and out of the courts.” Id. at 94. 

Consistent with this purpose, Congress specifically limited due process review of

Adjustment Board proceedings to the three specific claims articulated in the

statute. Id. at 92-93.3

 Not only would review of Adjustment Board decisions for
evidence presented, and thus exceeded its subject matter jurisdiction.

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other due process violations require an evasive reading of Sheehan, it also would

frustrate Congress’ intent to keep such disputes out of the courts. Accordingly,

we reverse the district court’s order granting summary judgment in Mr. Kinross’

favor. Because we determine the district court lacked jurisdiction to review Mr.

Kinross’ due process claim, we need not (and in fact lack jurisdiction to) address

Utah Railway’s remaining issues on appeal related to that claim.

Conclusion

We REVERSE the district court’s order granting Mr. Kinross’ motion for

summary judgment. Because the district court did not reach Mr. Kinross’

remaining two claims on whether the Board (1) exceeded its jurisdiction or (2)

acted in a fraudulent and corrupt manner, we REMAND the case to the district

court for a determination on these issues.