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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-7044 September Term, 2022

 FILED ON: FEBRUARY 17, 2023

ALTON & SOUTHERN RAILWAY COMPANY, ET AL.,

APPELLEES

v.

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION/IBT,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-03586)

Before: HENDERSON, WILKINS and CHILDS, Circuit Judges.

J U D G M E N T

The Court considered this appeal on the record from the United States District Court for 

the District of Columbia (district court) and on the briefs and oral arguments of the parties. The 

Court has afforded the issues full consideration and determined they do not warrant a published 

opinion. See D.C. Cir. R. 36(d). For the reasons stated below, it is hereby

ORDERED AND ADJUDGED that the district court’s March 30, 2022 order granting 

appellees’ motion for summary judgment and denying appellant’s cross-motion for summary 

judgment be AFFIRMED IN PART and DISMISSED IN PART.

Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Co., 383 F. 2d 225 

(D.C. Cir. 1967) (Atlantic Coast Line), is controlling precedent in this Circuit and is generally

binding on this panel. See, e.g., LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (“One 

three-judge panel . . . does not have the authority to overrule another three-judge panel of the court. 

. . . That power may be exercised only by the full court, either through an [e]n banc decision . . . 

or pursuant to the more informal practice adopted in Irons v. Diamond, . . . .” (citations omitted)). 

In Atlantic Coast Line, the Court held that the resolution of a dispute regarding the scope of 

collective bargaining, i.e., whether national or local handling of disputed labor issues is appropriate 

under The Railway Labor Act of 1926 (RLA), codified at 45 U.S.C. §§ 151–188, requires “an 

issue-by-issue evaluation of the practical appropriateness of mass bargaining on that point and of 
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the historical experience in handling any similar national movements.” Atl. Coast Line, 383 F.2d 

at 302. 

In resolving a scope of collective bargaining dispute on summary judgment between 

Appellant Brotherhood of Maintenance of Way Employes Division/IBT (BMWED), a union 

representing maintenance of way employees, and Appellees, a coalition of railroad employers

(coalition),

1 the district court held that under Atlantic Coast Line, BMWED’s statutory RLA rights 

are not violated if it is required to bargain collectively with the coalition on a national basis as to 

wages, work rules, and health and welfare issues. Applying Atlantic Coast Line for the first time 

since General Committee of Adjustment, GO-386 v. Burlington Northern & Santa Fe Railway Co., 

295 F.3d 1337 (D.C. Cir. 2002), we, after de novo review, affirm in part and dismiss in part. See

Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (grant of summary judgment reviewed de 

novo).

The RLA governs collective bargaining between railway carriers and their employees. 

E.g., Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148 (1969). 

For the parties, reoccurring collective bargaining occurs quinquennially as demonstrated by their 

participation in rounds of labor negotiations beginning in 1994, 1999, 2004, 2009, 2014, and 2019. 

The round of collective bargaining at issue in this appeal began on November 1, 2019. The parties 

initiated the bargaining process by serving notices pursuant to 45 U.S.C. § 156, which contained 

proposed changes to wages, work rules, and health and welfare benefits. The coalition notified 

BMWED that four smaller railroads, Delaware & Hudson Railroad Company (D&H), Northeast 

Illinois Regional Commuter Railroad Corporation, Northern Indiana Commuter Transportation 

District, and Soo Line Railroad Company (Soo Line) were part of the national coalition only for 

health and welfare issues. BMWED served “local” notices on coalition members Union Pacific 

Railroad Company, Norfolk Southern Railway Company, Consolidated Rail Corporation, and 

railroads controlled by Grand Trunk Corporation expressing an intention to bargain separately with 

those railroads on all issues locally, regardless of whether they had elected national handling.

Anticipating that the railroad companies it targeted would resist local bargaining, BMWED filed 

four parallel lawsuits against those railroads in district courts located within the geographic 

boundaries of the United States Courts of Appeals for the Sixth and Eighth Circuits. BMWED 

1 Maintenance of way employees are those workers who maintain a railroads’ tracks, structures, 

bridges, and rights-of-way. The entities in the coalition are Alton & Southern Railway Company, 

The Belt Railway Company of Chicago, Bessemer and Lake Erie Railroad Company, BNSF 

Railway Company, Central California Traction Company, Consolidated Rail Corporation, CSX 

Transportation, Inc., Delaware & Hudson Railroad Company, Grand Trunk Western Railroad 

Company, Illinois Central Railroad Company, Indiana Harbor Belt Railroad Company, The 

Kansas City Southern Railway Company, Los Angeles Junction Railway Company, New Orleans 

Public Belt Railroad Corporation, Norfolk & Portsmouth Belt Line Railroad Company, Norfolk 

Southern Railway Company, Northeast Illinois Regional Commuter Railroad Corporation, 

Northern Indiana Commuter Transportation District, Portland Terminal Railroad Company, Port 

Terminal Railroad Association, Soo Line Railroad Company, Terminal Railroad Association of 

St. Louis, Union Pacific Railroad Company, Wichita Terminal Association, Winston Salem 

Southbound Railway Company, and Wisconsin Central Limited. 
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alleged that the railroads’ refusal to bargain through local handling violated Section 2 First, 

Second, Third, and Fourth of the RLA, see 45 U.S.C. § 152, and sought declaratory and injunctive 

relief to compel each carrier to bargain with BMWED on an individual carrier basis. Thereafter, 

the coalition filed a reciprocal action in the district court seeking its own declaration and injunction 

to require BMWED to bargain on a national basis. After the courts in the BMWED-initiated 

actions transferred those matters to the district court, the district court consolidated BMWED’s 

cases with the coalition’s action. BMWED then filed a counterclaim against Soo Line and D&H

for declaratory and injunctive relief prohibiting them from only joining the coalition for health and 

welfare issues. Following cross-motions for summary judgment, the district court ruled in favor 

of the coalition, both on its claims and on BMWED’s counterclaim, holding that Atlantic Coast 

Line remains controlling precedent and governs the dispute. 

The parties’ ongoing dispute caused national concern because a potential rail workers’ 

strike threatened essential transportation services in the United States. As a result, President 

Biden created an emergency board pursuant to 45 U.S.C. § 160, which made recommendations to 

resolve the dispute and resulted in tentative agreements between the parties. See Exec. Order No. 

14077, 87 Fed. Reg. 43,203 (July 15, 2022). President Biden then made the tentative agreements 

binding when he signed into law a joint congressional resolution. See Pub. L. No. 117-216, 136 

Stat. 2267–2268 (Dec. 2, 2022). In response to a specified inquiry from this Court (see Doc. No. 

1977358), the parties agreed that even though their requests for injunctive relief dissolved with the 

enaction of Public Law 117-216, the legislation did not moot their requests for declaratory relief. 

We agree that the aforementioned “developments do not moot this controversy. . . . Because these 

same parties are reasonably likely to find themselves again in dispute over the issues raised in this 

petition, and because such disputes typically are resolved quickly by executive or legislative 

action, this controversy is . . . capable of repetition yet evading review.” Burlington N. R.R. Co. 

v. Bhd. of Maint. of Way Employes, 481 U.S. 429, 436 n.4 (1987) (citation omitted). See also 

Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377 (1979) (“To meet that test, two conditions 

must be satisfied: ‘(1) the challenged action was in its duration too short to be fully litigated prior 

to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining 

party would be subjected to the same action again.’” (citation omitted)). Therefore, upon 

consideration of the parties’ arguments, we find that an actual case or controversy still exists 

warranting a decision on the merits. See Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121–

122 (1974) (“[E]ven though the case for an injunction dissolved with the subsequent settlement of 

the strike and the strikers’ return to work, the parties . . . may still retain sufficient interests and 

injury as to justify the award of declaratory relief.”). 

In this appeal, BMWED acknowledges that Atlantic Coast Line is the law of the Circuit. 

Nevertheless, BMWED contends that the district court erred by: (1) determining that BMWED 

must bargain with the coalition nationally because the rail carriers seek to bargain nationally; and 

(2) concluding that Soo Line and D&H could participate in national bargaining with BMWED for 

health and welfare issues, while refusing to participate in national bargaining with BMWED for 

wages and work rules. BMWED focuses its arguments on overturning Atlantic Coast Line rather 

than the district court’s application of its holding. In this regard, BMWED beseeches this Court 

to consider en banc review to address whether Atlantic Coast Line is outdated, has lost its integrity, 

and is inconsistent with the RLA. BMWED further requests that the Court adopt the 
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interpretation of the RLA applied by the Eighth Circuit in American Railway and Airway 

Supervisors Ass’n (Division of BRAC) v. Soo Line Railroad Co., 891 F. 2d 675, 679–680 (8th Cir. 

1989) (Soo Line) (observing that a railroad “has no obligation to accept national bargaining and is 

not bound by national negotiations in which it chooses not to participate . . . .”), and the Sixth 

Circuit in United Transportation Union v. Grand Trunk Western Railroad Co., 901 F. 2d 489, 490

(6th Cir. 1990) (UTU) (concluding that national bargaining is not compelled “where a party opted 

for individual bargaining before the start of negotiations.”). 

However, this Court already evaluated both Soo Line and UTU in General Committee of 

Adjustment. In analyzing these cases, the Court drew a distinction between an issue regarding the 

designation of a bargaining representative and an issue regarding the scope of bargaining. To this 

point, the Court observed that bargaining representative issues are governed by Section 2 Third 

(45 U.S.C. § 152), while scope of bargaining issues fall under the precedent established in Atlantic 

Coast Line. Gen. Comm. of Adjustment, 295 F.3d at 1340. Upon review, we hold that the district 

court correctly held that the declaratory issues raised by the parties relate to the scope of their 

collective bargaining. Moreover, the district court correctly acknowledged and applied Atlantic 

Coast Line in its analysis consistent with the law of this Circuit. See Gen. Comm. of Adjustment,

295 F.3d at 1340 (“Rather, the issue is the scope of bargaining (national or local). Atlantic Coast 

Line, while relatively old, remains the law of this Circuit and ‘binds us, unless and until overturned 

by the court en banc or by Higher Authority.’” (emphasis in original) (citation omitted)). In 

particular, the district court clearly conveyed that BMWED’s counterclaim lacked merit because 

the record supported Soo Line and D&H’s history of joining national handling for health and 

welfare benefits, while also showing the practicality of their decision to handle wages and work 

rules locally. Therefore, we reaffirm Atlantic Coast Line as settled precedent in this Circuit, and

we decline to recommend en banc reconsideration.2

 See Fed. R. App. P. 35; D.C. Cir. Rule 35. 

Accordingly, due to the enactment of Public Law 117-216, we dismiss as moot the appeal

as it relates to the parties’ claims for injunctive relief. We affirm the district court’s collective 

bargaining declarations resulting from its grant of the coalition’s motion for summary judgment 

and denial of BMWED’s cross-motion for summary judgment. 

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is 

directed to withhold issuance of the mandate herein until seven days after resolution of any timely 

petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 

41(a)(1).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

2 We observe that the full Court already considered and denied a petition by BMWED seeking en 

banc consideration of Atlantic Coast Line. (See Doc. No. 1967321.)