[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 10, 2012
No. 11-13739
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 3:10-cv-01111-RBD-MCR
IRA JOHNSON,
lllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
NATIONAL RAILROAD PASSENGER
CORPORATION, AMTRAK,
lllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 10, 2012)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ira Johnson appeals the dismissal with prejudice of his complaint to vacate
an arbitration award entered by the Public Law Board in favor of Johnson’s former
employer, the National Railroad Passenger Corporation (“Amtrak”). The district
court ruled that Johnson failed to plead a cognizable ground on which to vacate
the decision of the Board. We affirm.
We review de novo the dismissal of a complaint for failure to state a claim,
accept as true the facts alleged in the complaint, and construe the facts in the favor
of the plaintiff. Bhd. of Locomotive Eng’rs v. CSX Transp., Inc., 522 F.3d 1190,
1194 (11th Cir. 2008). To avoid dismissal, the plaintiff must make “[f]actual
allegations . . . enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007).
A district court may vacate an arbitration award in three narrowly defined
circumstances, one of which is the failure of the Board “to conform, or confine
itself, to matters within the scope of [its] jurisdiction.” 45 U.S.C. § 153(q). The
Board exceeds its jurisdiction by entering an award that is irrational. Loveless v.
E. Air Lines, Inc., 681 F.2d 1272, 1276 (11th Cir. 1982). In other words, “the
reasoning [of the award must be] so palpably faulty that no judge, or group of
judges, could ever conceivably have made such a ruling.” Safeway Stores v. Am.
Bakery and Confectionery Workers Int’l Union, 390 F.2d 79, 82 (5th Cir. 1968).
Johnson failed to state a plausible claim that the arbitration award was
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irrational. The Board affirmed the decision of Amtrak to fire Johnson based on
testimony from Johnson’s coworkers that Johnson uttered offensive and profane
comments that were overheard by passengers and that intimidated one of his
coworkers. Johnson complained that the award was irrational because it
disregarded the progressive discipline policy adopted by Amtrak, but the
disciplinary policy provided that, “for more serious offenses, [the] progression [of
punishment] may start at” dismissal. The district court did not err when it granted
the motion of Amtrak to dismiss Johnson’s complaint.
Johnson challenges the disposition of his complaint on two grounds, but
both arguments are frivolous. First, Johnson argues that the district court
considered exhibits to the pleadings and should have converted the motion filed by
Amtrak into a motion for summary judgment, but Johnson “agrees that the records
of the arbitration could be considered on a motion to dismiss.” See Harper v.
Lawrence Cnty., Ala., 592 F.3d 1227, 1232 (11th Cir. 2010). Second, Johnson
argues that the district court violated his right of due process by failing to acquire
the entire record, but Johnson fails to identify what documents were omitted or to
provide a substantive discussion of the issue in his brief. See Fed. R. App. P.
28(a)(9).
We AFFIRM the dismissal of Johnson’s complaint.
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