In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-3476

JENNIFER MILLER, SCOTT POOLE, and KEVIN ENGLUND,

Plaintiffs-Appellants,

v.

SOUTHWEST AIRLINES CO.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 18 C 86 — Marvin E. Aspen, Judge.

____________________

No. 19-1785

DAVID JOHNSON, individually and on behalf of a class,

Plaintiff-Appellee,

v.

UNITED AIRLINES, INC., and UNITED CONTINENTAL HOLDINGS,

INC.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 08858 — Virginia M. Kendall, Judge.
2 Nos. 18-3476 & 19-1785

____________________

ARGUED MAY 28, 2019 — DECIDED JUNE 13, 2019

____________________

Before WOOD, Chief Judge, and BAUER and EASTERBROOK,

Circuit Judges.

EASTERBROOK, Circuit Judge. We have consolidated two 

appeals that pose a common question: whether persons who 

contend that air carriers have violated state law by using biometric identification in the workplace must present these 

contentions to an adjustment board under the Railway Labor 

Act (RLA), 45 U.S.C. §§ 151–88, which applies to air carriers 

as well as railroads. 45 U.S.C. §181. The answer is yes if the 

contentions amount to a “minor dispute”—that is, a dispute 

about the interpretation or application of a collective bargaining agreement. 45 U.S.C. §§ 151a, 184; Hawaiian Airlines, 

Inc. v. Norris, 512 U.S. 246, 252–53 (1994). Plaintiffs insist that 

a judge should resolve their contentions, while defendants

contend that resolution belongs to an adjustment board.

The claims in each suit arise under the Biometric Information Privacy Act (BIPA), 740 ILCS 14/5 to 14/25, which Illinois adopted in 2008. This law applies to all biometric identifiers, which the statute defines to include fingerprints. 740 

ILCS 14/10. Before obtaining any fingerprint, a “private entity” must inform the subject or “the subject’s legally authorized representative” in writing about several things, such as 

the purpose of collecting the data and how long they will be 

kept, and obtain the consent of the subject or authorized representative. 740 ILCS 14/15(b). The private entity also must 

establish and make available to the public a protocol for re-
Nos. 18-3476 & 19-1785 3

taining and handling biometric data, which must be destroyed “when the initial purpose for collecting or obtaining 

such identifiers or information has been satisfied or within 3 

years of the individual’s last interaction with the private entity, whichever occurs first.” 740 ILCS 14/15(a). Sales of biometric information are forbidden, 740 ILCS 14/15(c), and 

transfers are limited, 740 ILCS 14/15(d). Private entities must 

protect biometric information from disclosure. 740 ILCS 

14/15(e).

Both Southwest Airlines and United Airlines maintain 

timekeeping systems that require workers to clock in and 

out with their fingerprints. Plaintiffs contend that the air carriers implemented these systems without their consent, 

failed to publish protocols, and use third-party vendors to 

implement the systems, which plaintiffs call a forbidden disclosure. Southwest and United contend that the plaintiffs’ 

unions have consented—either expressly or through the collective bargaining agreements’ management-rights clauses—

and that any required notice has been provided to the unions. The air carriers insist that, to the extent these maoers 

are disputed, an adjustment board rather than a judge must 

resolve the difference—and that if state law gives workers 

rights beyond those provided by federal law and collective 

bargaining agreements, it is preempted by the Railway Labor Act.

The suits were assigned to different district judges.

Judge Aspen found that the plaintiffs have standing under Article III but dismissed the suit against Southwest Airlines for improper venue. Fed. R. Civ. P. 12(b)(3). 2018 U.S. 

Dist. LEXIS 143369 (N.D. Ill. Aug. 23, 2018). He made clear, 

however, that the suit did not belong in state court or some 
4 Nos. 18-3476 & 19-1785

other federal district court; he held, rather, that it belongs to 

an adjustment board under the Railway Labor Act and that 

any aoempt by Illinois to give workers rights to bypass their 

union (Transportation Workers Union Local 555) and deal

directly with an air carrier is preempted by federal law. Thus 

dismissal has nothing to do with venue. See 28 U.S.C. §1391.

Dismissal should have been labeled either as a judgment 

on the pleadings, Fed. R. Civ. P. 12(c), or a dismissal for lack 

of subject-maoer jurisdiction, as this circuit’s decisions suggest. See, e.g., Carlson v. CSX Transportation, Inc., 758 F.3d 

819, 824–25 (7th Cir. 2014); Brotherhood of Maintenance of Way 

Employees v. Norfolk Southern Ry., 745 F.3d 808 (7th Cir. 2014); 

Brown v. Illinois Central R.R., 254 F.3d 654 (7th Cir. 2001). But 

see, e.g., Oakey v. U.S. Airways Pilots Disability Plan, 723 F.3d 

227 (D.C. Cir. 2013) (need to resolve a dispute under the 

Railway Labor Act’s procedures does not imply lack of subject-maoer jurisdiction); Emswiler v. CSX Transportation, Inc., 

691 F.3d 782 (6th Cir. 2012) (same). None of this circuit’s decisions considers the effect of the Supreme Court’s modern 

understanding of the difference between “jurisdiction” and 

other kinds of rules. See Fort Bend County v. Davis, No. 18–

525 (U.S. June 3, 2019) (discussing the difference); Carlson, 

758 F.3d at 831 (recognizing that this court has yet to consider how the distinction applies to the Railway Labor Act). It is 

unnecessary to do so here, for either a substantive or a jurisdictional label ends the litigation between these parties and 

forecloses its continuation in any other judicial forum.

The suit against United Airlines was filed in state court 

and removed to federal court on two theories: federalquestion jurisdiction under the Railway Labor Act plus removal jurisdiction under 28 U.S.C. §1453, part of the Class 
Nos. 18-3476 & 19-1785 5

Action Fairness Act (CAFA). Judge Kendall concluded that 

the subject is in the bailiwick of plaintiffs’ union (International Association of Machinists and Aerospace Workers) 

and an adjustment board; this aspect of her decision reaches 

the same conclusion as Judge Aspen. But Judge Kendall 

added that the complaint did not present a case or controversy, because the class asserted only a bare procedural 

right. This led her to dismiss for lack of jurisdiction. 2018 

U.S. Dist. LEXIS 127959 (N.D. Ill. July 31, 2018).

The class, which wants to litigate in state court, protested, 

observing that if there is no federal jurisdiction then the suit 

must be remanded. 28 U.S.C. §1447(c). Judge Kendall 

agreed. United also complained about the initial decision. 

Observing that the jurisdictional question had not been 

raised or briefed by the parties, United maintained that 

plaintiffs have standing because they allege (or at least imply) that biometric data had been transmioed outside United 

and may have reached inappropriate hands. Judge Kendall 

refused to revisit that subject, however, and entered an order 

returning the case to state court. 2019 U.S. Dist. LEXIS 43484 

(N.D. Ill. Mar. 18, 2019).

The remand of a suit removed under the Class Action 

Fairness Act is appealable with judicial permission, 28 U.S.C. 

§1453(c)(1), and United asked us to accept its appeal. The 

statute makes appellate authority turn on removal under the 

Class Action Fairness Act, not on whether the appeal presents an issue about the interpretation of that statute. This, 

plus the disparate outcomes of the two suits, led us to accept 

the appeal even on the assumption that the only issues concern the interaction between Illinois law and the Railway 

Labor Act. (That assumption may be incorrect. We’ll return 
6 Nos. 18-3476 & 19-1785

to the question how the Class Action Fairness Act applies to 

the removal of the suit against United.)

Subject-maoer jurisdiction is the first issue in any case, 

and as far as we can see the two suits are identical in this respect. Judge Aspen found that fingerprinted workers have 

standing, but Judge Kendall thought that a violation of the 

state statute does not cause concrete injury to anyone, so that 

the workers lack standing. See, e.g., Spokeo, Inc. v. Robins, 136 

S. Ct. 1540 (2016); Groshek v. Time Warner Cable, Inc., 865 F.3d 

884 (7th Cir. 2017); Casillas v. Madison Avenue Associates, Inc., 

No. 17-3162 (7th Cir. June 4, 2019). We disagree with Judge 

Kendall’s conclusion, for two principal reasons.

First, the stakes in both suits include whether the air carriers can use fingerprint identification. If the unions have not 

consented, or if the carriers have not provided unions with 

required information, a court or adjustment board may order a change in how workers clock in and out. The prospect 

of a material change in workers’ terms and conditions of 

employment gives these suits a concrete dimension that

Spokeo, Groshek, and Casillas lacked. Either the discontinuation of the practice, or the need for the air carriers to agree to 

higher wages to induce unions to consent, presents more 

than a bare procedural dispute. See Robertson v. Allied Solutions, LLC, 902 F.3d 690, 697 (7th Cir. 2018) (“Article III’s 

strictures are met not only when a plaintiff complains of being deprived of some benefit, but also when a plaintiff complains that she was deprived of a chance to obtain a benefit.”).

Second, plaintiffs assert that the air carriers are not following the statutory data-retention limit and may have used 

outside parties to administer their timekeeping systems. The 
Nos. 18-3476 & 19-1785 7

longer data are retained, and the more people have access,

the greater the risk of disclosure (including by dissatisfied 

employees who misuse their access or by criminals who 

hack into a computer system). This was Judge Aspen’s rationale for finding standing. 2018 U.S. Dist. LEXIS 143369 at 

*5–10. Some employees devote time and money to safeguards against identity theft. That’s why we held in Remijas 

v. Neiman Marcus Group, LLC, 794 F.3d 688 (7th Cir. 2015), 

that a suit contending that hackers obtained personal details 

presents a case or controversy, even though the plaintiffs did 

not contend that their credit ratings had suffered. See also, 

e.g., Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963 (7th 

Cir. 2016); Dieffenbach v. Barnes & Noble, Inc., 887 F.3d 826 

(7th Cir. 2018). Because these complaints do not allege that

biometric data are in the hands of malefactors, their position 

is weaker than that of the plaintiffs in Remijas and its successors. We need not decide whether the risk of disclosure itself 

suffices for standing—or whether it would be necessary to 

take discovery into the question whether biometric data 

have been released—because the first ground of standing is 

independently sufficient.

We begin with the suit against Southwest, for in that suit 

the plaintiffs are content to litigate in federal court. We postpone the question whether the suit against United was 

properly removed.

A dispute about the interpretation or administration of a 

collective bargaining agreement must be resolved by an adjustment board under the Railway Labor Act. There is no 

doubt that Southwest has a collective bargaining agreement 

with the union that represents the three plaintiffs. Southwest 

asserts that the union assented to the use of fingerprints, ei-
8 Nos. 18-3476 & 19-1785

ther expressly on being notified before the practice was instituted or through a management-rights clause. And there can 

be no doubt that how workers clock in and out is a proper 

subject of negotiation between unions and employers—is, 

indeed, a mandatory subject of bargaining. 45 U.S.C. §152 

First. (That phrase usually is associated with negotiations 

under the National Labor Relations Act, but the Supreme 

Court has held that the principle applies under the Railway 

Labor Act too, with provisos that do not affect this case. See 

PiTsburgh & Lake Erie R.R. v. Railway Labor Executives’ Association, 491 U.S. 490, 508 n.17 (1989); Norfolk & Western Ry. v. 

American Train Dispatchers’ Association, 499 U.S. 117, 122 

(1991). See also Brotherhood of Locomotive Engineers v. Union 

Pacific R.R., 879 F.3d 754, 756 (7th Cir. 2017).)

As a maoer of federal law, unions in the air transportation business are the workers’ exclusive bargaining agents. 

45 U.S.C. §152 Second; International Association of Machinists 

v. Street, 367 U.S. 740, 760 (1961). A state cannot remove a 

topic from the union’s purview and require direct bargaining between individual workers and management. And Illinois did not try. Its statute provides that a worker or an authorized agent may receive necessary notices and consent to 

the collection of biometric information. 740 ILCS 14/15(b). 

We reject plaintiffs’ contention that a union is not a “legally 

authorized representative” for this purpose. Neither the 

statutory text nor any decision by a state court suggests that 

Illinois wants to exclude a collective-bargaining representative from the category of authorized agents.

Whether Southwest’s or United’s unions did consent to 

the collection and use of biometric data, or perhaps grant authority through a management-rights clause, is a question 
Nos. 18-3476 & 19-1785 9

for an adjustment board. Similarly, the retention and destruction schedules for biometric data, and whether air carriers may use third parties to implement timekeeping and 

identification systems, are topics for bargaining between unions and management. States cannot bypass the mechanisms 

of the Railway Labor Act and authorize direct negotiation or

litigation between workers and management. (Whether there 

would be a role for litigation if a union violated its duty of 

fair representation is a subject we need not confront; plaintiffs have not named a union as a defendant or contended 

that a union has violated its duty of fair representation.) That 

biometric information concerns workers’ privacy does not 

distinguish it from many other subjects, such as drug testing, 

that are routinely covered by collective bargaining and on 

which unions give consent on behalf of the whole bargaining 

unit.

When a subject independent of collective bargaining arises, and concerns different treatment of different workers, litigation may proceed outside the scope of the Railway Labor 

Act. The Supreme Court held in Lingle v. Norge Division of 

Magic Chef, Inc., 486 U.S. 399 (1988) (discussing the Labor 

Management Relations Act), that a retaliatory-discharge 

claim may be pursued under state law. Such a claim can be 

resolved without interpreting a collective bargaining agreement; it is person-specific and does not concern the terms 

and conditions of employment. See also Hughes v. United Air 

Lines, Inc., 634 F.3d 391 (7th Cir. 2011) (Lingle’s approach applies to the Railway Labor Act as well). But our plaintiffs assert a right in common with all other employees, dealing 

with a mandatory subject of collective bargaining. It is not 

possible even in principle to litigate a dispute about how an 

air carrier acquires and uses fingerprint information for its 
10 Nos. 18-3476 & 19-1785

whole workforce without asking whether the union has consented on the employees’ collective behalf. That’s why this 

dispute must go to an adjustment board. Lingle, Hawaiian 

Airlines, and Hughes all recognize that, if a dispute necessarily entails the interpretation or administration of a collective 

bargaining agreement, there’s no room for individual employees to sue under state law—in other words, state law is 

preempted to the extent that a state has tried to overrule the 

union’s choices on behalf of the workers.

Plaintiffs stress that Southwest began using workers’ fingerprints in 2006, two years before Illinois enacted its law. 

This shows that the union cannot have consented to Southwest’s practices, plaintiffs conclude. That’s not necessarily 

so. Southwest and the union may have discussed and resolved this maoer in 2005, or 2006, or 2008, or in the decade 

since. Perhaps in 2006 Southwest supplied all of the information, and the union gave all of the consents, that the state 

later required. Perhaps the statute led to a new round of bargaining. What Southwest told the union, whether it furnished that information in writing, when these things happened, and what the union said or did in response, are 

maoers not in this record. They are properly not in this record, as they are topics for resolution by an adjustment board

rather than a judge. Perhaps a board will conclude that the 

union did not consent or did not receive essential information before consenting, just as plaintiffs assert. But the 

board must make that decision and supply any appropriate

remedy.

What we have said about the suit against Southwest applies equally to the suit against United—and the conclusion 

that it is impossible to litigate under the state statute without 
Nos. 18-3476 & 19-1785 11

examining what the union knew and agreed to also means 

that United was entitled to remove the suit to federal court 

under the federal-question jurisdiction. 28 U.S.C. §§ 1331, 

1441. Although the class aoempted to frame a complaint relying entirely on state law, the complaint concerns collective 

bargaining regulated by federal law. That brings into play a 

doctrine misleadingly called “complete preemption,” but 

perhaps beoer labeled as a rule that when federal law completely occupies a field any claim within that scope rests on 

federal law, no maoer how a plaintiff tries to frame the complaint. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23–24 (1983); Lehmann v. Brown, 230 

F.3d 916, 919–20 (7th Cir. 2000); Hughes, 634 F.3d at 393.

If we are wrong about how the Railway Labor Act affects 

collective bargaining over fingerprinting in the workplace, 

then the doctrine of complete preemption would not authorize removal of the suit against United. So, just in case, we 

add that the Class Action Fairness Act probably authorized 

the removal—probably, but not certainly.

A “class action” as defined in 28 U.S.C. §1332(d)(1) may 

be removed from state to federal court. 28 U.S.C. §1453(b). 

Section 1332(d) creates federal jurisdiction if a class suit has 

an amount in controversy exceeding $5 million and at least 

one member of the class has a citizenship different from that 

of the defendants. Given the size of the class (more than 

4,000 workers in Illinois alone use fingerprints to clock in 

and out) and the penalties provided by state law, the controversy exceeds $5 million. 740 ILCS 14/20. United is a Delaware corporation with its principal place of business in Illinois, so if even one person who works for United in Illinois,

uses fingerprints to clock in and out, and is a citizen of any 
12 Nos. 18-3476 & 19-1785

state other than Delaware or Illinois, the requirement of minimal diversity is met. It seems likely to us that at least one 

person domiciled in southern Wisconsin or northwest Indiana works for United at O’Hare Airport, which is in commuting distance from both states. But, for reasons that United has not explained, its notice of removal does not assert 

this. Surely United knows where its workers live, and it may 

even know their domicile (which is not always the state of 

residence), but it did not put that information in its notice of 

removal, which is therefore deficient.

The class representative tells us that he wants the class 

limited to citizens of Illinois. It is far from clear that this is 

appropriate. The state law applies to private entities that collect biometric data in Illinois; the statute does not purport to 

exclude people who work in Illinois, provide biometric data 

in Illinois, but are domiciled in other states. Nor is it clear 

that the class was so limited on the date of removal—and 

post-removal amendments to a complaint or other papers do 

not eliminate jurisdiction proper at the time of removal. See 

Rockwell International Corp. v. United States, 549 U.S. 457, 473–

74 & n.6 (2007). Still, the shortcoming in United’s allegations 

of citizenship remains as a potential obstacle.

After these problems were pointed out at oral argument, 

United filed a jurisdictional supplement, invoking 28 U.S.C. 

§1653. In addition to wrongly supposing that the suit challenges its employment practices nationwide—which is not 

possible, as the state statute is limited to Illinois—the supplemental filing continues to refer to the “residence” rather 

than the “citizenship” of United’s Illinois workforce.

Given our conclusion that the federal-question jurisdiction supports removal, we need not remand for the district 
Nos. 18-3476 & 19-1785 13

court to explore the question whether, on the date the case 

was removed, one class member was a citizen of Wisconsin 

or Indiana, or conceivably some third state other than Illinois 

or Delaware—say, a citizen of California temporarily detailed to work at O’Hare.

In Miller v. Southwest Airlines, No. 18-3476, the judgment of the district court is affirmed. In Johnson v. United Airlines, No. 19-1785, the judgment is vacated, and the case is 

remanded with instructions to refer the parties’ dispute to an 

adjustment board.