FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALGIA MOORE-THOMAS, 

individually, and on behalf of all

other persons similarly situated, No. 06-35923

Plaintiff-Appellant, D.C. No.  v. CV-06-00652-BR

ALASKA AIRLINES, INC., a Foreign OPINION

Corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

October 24, 2008—Portland, Oregon

Filed January 27, 2009

Before: A. Wallace Tashima and Milan D. Smith, Jr.,

Circuit Judges, and George H. Wu,* District Judge.

Opinion by Judge Milan D. Smith, Jr.

*The Honorable George H. Wu, United States District Court Judge for

the Central District of California, sitting by designation. 

977
COUNSEL

A.E. Bud Bailey, Jacqueline L. Koch, and Gary A. Parks, Bailey Pinney & Associates, LLC, Vancouver, Washington, for

the plaintiff-appellant. 

Brenda K. Baumgart, Barren Liebman, LLP, Portland, Oregon, for the defendant-appellee. 

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Plaintiff-Appellant Algia Moore-Thomas (Moore-Thomas)

appeals the district court’s dismissal of her uncertified class

action in which she alleges that Defendant-Appellee Alaska

Airlines, Inc. (Alaska) willfully failed to pay her and other

former employees all wages due upon termination, at the time

and in the manner required by Oregon Revised Statutes (Or.

Rev. Stat.) § 652.140. Moore-Thomas argues that the district

MOORE-THOMAS v. ALASKA AIRLINES, INC. 979
court erred by concluding that the Railway Labor Act (RLA),

45 U.S.C. §§ 151-63, 181-88, completely pre-empts her state

law claim, by denying her motion to remand, and by granting

Alaska’s motion to dismiss for lack of subject matter jurisdiction. Because the RLA does not completely pre-empt MooreThomas’s claim, we reverse and remand with instructions to

vacate the judgment and remand the action to state court.

FACTUAL AND PROCEDURAL BACKGROUND

Alaska employed Moore-Thomas as a customer service

agent in Portland, Oregon. A collective bargaining agreement

(CBA) between Alaska and its clerical, office, and passengerservice employees governed her employment. 

In March 2006, Moore-Thomas and certain other former

Alaska employees filed a class-action complaint against

Alaska in Oregon state court. Their complaint asserts that

Alaska willfully failed to pay them all wages due on termination of their employment, in violation of Or. Rev. Stat.

§ 652.140. Moore-Thomas seeks statutory penalties, costs and

disbursements, pre- and post-judgment interest, and reasonable attorneys’ fees on behalf of herself and all others similarly situated. 

Alaska timely removed the action to the district court, pursuant to 28 U.S.C. §§ 1441(a) and 1446(b). In its removal

petition, Alaska stated that the district court had jurisdiction

pursuant to 28 U.S.C. § 1331 because the RLA governed the

action.

1

Once in federal court, Alaska filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Proce1Alaska did not rely on diversity of citizenship as an alternate ground

to sustain removal jurisdiction in either its removal petition or its opposition to Moore-Thomas’s motion to remand. We therefore do not consider

that ground on appeal. 

980 MOORE-THOMAS v. ALASKA AIRLINES, INC.
dure, alleging that the district court lacked subject matter

jurisdiction because the RLA pre-empts Moore-Thomas’s

state law claim, and because she had not complied with the

RLA’s mandatory arbitration provisions. Moore-Thomas then

filed a motion to remand the action to state court, arguing that

the district court lacked subject matter jurisdiction because the

RLA does not pre-empt her claim. 

The district court ruled that the RLA completely pre-empts

Moore-Thomas’s action because her claim requires interpretation of the CBA. Accordingly, the district court concluded

that removal was proper, denied Moore-Thomas’s motion to

remand, and granted Alaska’s motion to dismiss for lack of

subject matter jurisdiction in light of the parties’ failure to

arbitrate the claim pursuant to the RLA. Moore-Thomas

timely appealed. 

STANDARD OF REVIEW AND JURISDICTION

We review both the district court’s pre-emption analysis

and denial of the motion to remand de novo. Olympic Pipe

Line Co. v. City of Seattle, 437 F.3d 872, 877 n.12 (9th Cir.

2006) (pre-emption analysis); Ritchey v. Upjohn Drug Co.,

139 F.3d 1313, 1315 (9th Cir. 1998) (motion to remand). We

have jurisdiction over Moore-Thomas’s appeal pursuant to 28

U.S.C. § 1291.

DISCUSSION

Moore-Thomas argues that the district court erred in denying her motion to remand because the RLA does not completely pre-empt her state law claim. 

A. Pre-emption and Subject Matter Jurisdiction 

[1] Under 28 U.S.C. § 1441, a defendant may remove an

action filed in state court to federal court if the federal court

would have original subject matter jurisdiction over the

MOORE-THOMAS v. ALASKA AIRLINES, INC. 981
action. Federal courts have original jurisdiction over “all civil

actions arising under the Constitution, laws, or treaties of the

United States.” 28 U.S.C. § 1331. To determine whether an

action arises under federal law, a court applies the “ ‘wellpleaded complaint rule.’ ” Toumajian v. Frailey, 135 F.3d

648, 653 (9th Cir. 1998) (quoting Metro. Life. Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)). Under this rule, a claim arises

under federal law “only when a federal question is presented

on the face of the plaintiff’s properly pleaded complaint.”

Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005).

[2] “A resulting corollary to the well-pleaded complaint

rule, known as the complete preemption doctrine, provides

that ‘Congress may so completely preempt a particular area

that any civil complaint raising this select group of claims is

necessarily federal in character.’ ” Toumajian, 135 F.3d at

653 (quoting Metro. Life, 481 U.S. at 63-64). “[I]f a federal

cause of action completely preempts a state cause of action[,]

any complaint that comes within the scope of the federal

cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S.

1, 24 (1983). 

A motion to remand is the proper procedure for challenging

removal. 28 U.S.C. § 1447(c). The removal statute is strictly

construed, and any doubt about the right of removal requires

resolution in favor of remand. Gaus v. Miles, Inc., 980 F.2d

564, 566 (9th Cir. 1992). The presumption against removal

means that “the defendant always has the burden of establishing that removal is proper.” Id.

B. Pre-emption Under the RLA 

[3] In Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

(1994), the Supreme Court held that the pre-emption standard

applied under § 301 of the Labor Management Relations Act

(LMRA), 29 U.S.C. § 185, is also appropriate for addressing

questions of RLA pre-emption—i.e., that the RLA similarly

982 MOORE-THOMAS v. ALASKA AIRLINES, INC.
“pre-empts state law only if a state-law claim is dependent on

the interpretation of a CBA.” Hawaiian Airlines, 512 U.S. at

262-63 & n.9. Given the intra-circuit conflict in some of our

cases (infra), the district court here understandably impliedly

interpreted the analogy drawn between LMRA and RLA preemption in Hawaiian Airlines as rendering the two standards

fully coequal such that LMRA complete pre-emption applies

in the RLA context as well. Specifically, the district court

noted that “the preemption standard in the RLA context ‘is

virtually identical to the pre-emption standard . . . in cases

involving § 301 of the LMRA . . . .’ ” (quoting Hawaiian Airlines, 512 U.S. at 260). The district court then stated, “LMRA

§ 301 completely preempts ‘claims founded directly on rights

created by collective bargaining agreements, and also claims

substantially dependent on analysis of a collective bargaining

agreement,’ ” (quoting Cramer v. Consol. Freightways, Inc.,

255 F.3d 683, 689 (9th Cir. 2001) (en banc) (internal quotation marks omitted)), and assumed throughout the rest of the

opinion that the RLA is also subject to complete pre-emption.

Moore-Thomas contends that the district court erred in its

reasoning because the RLA is subject to “ordinary” rather

than “complete” pre-emption. She asserts that the distinction

is crucial because, under the complete pre-emption exception

to the well-pleaded complaint rule, “federal law displaces a

plaintiff’s state-law claim, no matter how carefully pleaded.”

Valles, 410 F.3d at 1075. By contrast, under ordinary preemption, the well-pleaded complaint rule applies such that

“[a] federal law defense to a state-law claim . . . , even if the

defense is that of federal pre-emption and is anticipated in the

plaintiff’s complaint,” is insufficient to confer federal jurisdiction if the complaint on its face does not present a federal

question. Id. Because only ordinary pre-emption applies, she

argues, and because her complaint presents only state law

questions, the district court impermissibly relied on Alaska’s

pre-emption defense in concluding that the RLA governed her

action. We agree that the RLA does not provide a basis for

finding complete pre-emption in this case and that, as a result,

MOORE-THOMAS v. ALASKA AIRLINES, INC. 983
Alaska’s removal on the grounds of the RLA’s governing this

action was improper. We, therefore, do not reach the question

of whether ordinary pre-emption serves as a defense to

Moore-Thomas’s claim. 

[4] In Sullivan v. American Airlines, 424 F.3d 267 (2d Cir.

2005), the Second Circuit concluded that the Supreme Court’s

decision in Beneficial National Bank v. Anderson, 539 U.S. 1

(2003), clarified that complete pre-emption does not apply

under the RLA. Sullivan, 424 F.3d at 275. The Second Circuit

cited the Supreme Court’s observation in Beneficial National

Bank to the effect that “ ‘[i]n the two categories of cases

where this Court has found complete preemption—certain

causes of action under the LMRA and ERISA[2]—the federal

statutes at issue provided the exclusive cause of action for the

claim asserted and also set forth procedures and remedies

governing that cause of action.’ ” Sullivan, 424 F.3d at 275

(quoting Beneficial Nat’l Bank, 539 U.S. at 8 (emphasis

added)). According to the Second Circuit, “[h]ad Hawaiian

Airlines established that § 184 of the RLA, like § 301 of the

LMRA, completely preempted state-law causes of action

within its scope, the Court in Beneficial National Bank would

have discussed three, not two, categories of cases involving

complete preemption.” Id.

[5] Although the Supreme Court in Beneficial National

Bank actually added a third category of cases requiring complete pre-emption by holding that the National Bank Act, 12

U.S.C. §§ 85-86, completely pre-empts state usury claims,

Beneficial Nat’l Bank, 539 U.S. at 11, we are persuaded by

the reasoning of Sullivan, and likewise hold that the RLA is

not subject to complete pre-emption. Our holding is buttressed by the Supreme Court’s explanation that a federal statute must provide the “exclusive cause of action” for complete

pre-emption to apply: 

2The Employee Retirement Income Security Act of 1974, 29 U.S.C.

§ 1001 et seq.

984 MOORE-THOMAS v. ALASKA AIRLINES, INC.
Does the National Bank Act provide the exclusive

cause of action for usury claims against national

banks? If so, then the cause of action necessarily

arises under federal law and the case is removable.

If not, then the complaint does not arise under federal law and is not removable. 

Beneficial Nat’l Bank, 539 U.S. at 9. Accordingly, even

though the petitioners’ removal petition in Beneficial National

Bank demonstrated that § 85 of the National Bank Act would

provide a complete federal defense, removal was proper only

in light of the “Court’s longstanding and consistent construction of the National Bank Act as providing an exclusive federal cause of action for usury against national banks.” Id. at

10. 

By contrast, the RLA does not provide an exclusive federal

cause of action. Rather than allowing disputes between airlines and their employees that “grow[ ] out of grievances, or

out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” to be filed initially in federal court, the RLA instead requires submission of

such disputes to internal dispute-resolution processes and then

to a division of the National Adjustment Board or an arbitration board selected by the parties. 45 U.S.C. §§ 153 and 184.

Only after “the grievance has been heard by the adjustment

board [does] exclusive jurisdiction rest[ ] with the federal

court.” Schroeder v. Trans World Airlines, Inc., 702 F.2d 189,

192 (9th Cir. 1983). 

[6] Given the Supreme Court’s ruling in Beneficial

National Bank, it is clear that the district court erred when it

assumed that the RLA is subject to complete rather than ordinary pre-emption in holding that removal was proper. See 15

MOORE’S FEDERAL PRACTICE § 103.45[3][b] (3d ed. 2008) (citing Beneficial National Bank for the proposition that: “[T]he

Railway Labor Act . . . does not completely preempt state law

claims arising out of railroad labor disputes and, therefore,

MOORE-THOMAS v. ALASKA AIRLINES, INC. 985
does not provide a ground for removal of such claims to federal court. The Act does not provide a federal cause of action,

without which complete preemption . . . cannot exist.”). 

In the past, certain of our precedents created an intra-circuit

conflict on the question of whether the RLA completely preempts state law claims. In Holman v. Laulo-Rowe Agency,

994 F.2d 666, 669 n.4 (9th Cir. 1993), we observed: 

There is apparently a conflict in this circuit over

whether complete preemption applies to suits involving the Railway Labor Act (RLA), 45 U.S.C. § 151,

et seq. Compare Price v. PSA Inc., 829 F.2d 871 (9th

Cir. 1987) . . . (RLA does not have complete preemptive power) with Grote v. Trans World Airlines,

Inc., 905 F.2d 1307 (9th Cir. 1990)[ ] (citing Price

with approval on a related issue, but then holding,

without discussion, that RLA does have complete

preemptive power.) 

[7] In light of the Supreme Court’s ruling in Beneficial

National Bank, we hold that to the extent this court’s prior

decision in Grote v. Trans World Airlines, Inc., 905 F.2d

1307, 1310 (9th Cir. 1990), ruled that the RLA is subject to

complete pre-emption, that holding is clearly irreconcilable

with Beneficial National Bank, and is effectively overruled.

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc) (noting that “where intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,]

. . . a three-judge panel of this court and district courts should

consider themselves bound by [that] intervening higher

authority and reject the prior opinion of this court as having

been effectively overruled”). We also hold that to the extent

Schroeder ruled that federal question jurisdiction always or

automatically exists whenever a removal petition contains

additional facts evidencing “[t]he application of [the RLA]

and the necessity of its interpretation,” 702 F.2d at 191, that

986 MOORE-THOMAS v. ALASKA AIRLINES, INC.
holding is also effectively overruled by Beneficial National

Bank. 

CONCLUSION

[8] Even assuming that Alaska’s removal petition demonstrates that the RLA provides a complete federal defense to

Moore-Thomas’s state wage and hour claim, because the

RLA is subject to ordinary rather than complete pre-emption,

her complaint does not arise under federal law and is not

removable. The district court erred in determining otherwise

and, as a result, we reverse and remand with instructions to

vacate the judgment and remand the action to state court for

lack of subject matter jurisdiction. 

REVERSED and REMANDED, with INSTRUCTIONS.

MOORE-THOMAS v. ALASKA AIRLINES, INC. 987