NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3062
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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)
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OPINION
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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.
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 union-
chosen 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,
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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
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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.”
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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,
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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.
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