CSX Transportation, Inc. v. Brotherhood of Maintenance of Way Employees

BLACK, Circuit Judge,

concurring specially:

I agree with the majority that the doctrine of collateral estoppel does not preclude us from deciding the issue of whether monetary damages are available under the RLA for an illegal strike. Furthermore, I agree with the majority that in Louisville & Nashville Railroad Company v. Brown, 252 F.2d 149 (5th Cir.1958), we addressed this issue and answered it in the negative.1 Thus, we are bound by our precedent to affirm the district court’s ruling. All other issues are moot.

I specially concur with the result in this case because I respectfully disagree with the majority’s call for the court to reconsider the Brown decision en banc. It is true that since Broum was decided the Supreme Court has clarified the framework for determining what remedies are available under a statute that provides a private right of action. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). However, I do not think these precedents of relatively recent vintage present a sufficient reason to revisit Brown. I agree with the majority that were we writing on a clean slate and deciding this issue after Franklin and Gebser, we might find that monetary damages were appropriate under the RLA for violations of §§ 152 and 153. However, we are not writing on a clean slate.

The Brown court has already addressed this issue and resolved it. Parties have relied on this ruling for 45 years. In the 77-year history of the RLA, not one court of appeal has held that damages are an appropriate remedy in this situation. The three courts of appeals to address the issue since Brown have all followed Brown’s holding, noting that to recognize a monetary remedy at this late stage in the RLA’s development would threaten to disrupt the balance that has developed between railroads and unions. See Norfolk Southern Ry. Co. v. Bhd. of Locomotive Eng’rs, 217 F.3d 181, 190 (4th Cir.2000) (“We are hesitant after all these years to do anything that might upset the delicate balance, particularly since the Act is structured to keep judicial involvement at a minimum.”); CSX Transp. v. Marquar, 980 F.2d 359, 381-82 (6th Cir.1992) (“After 66 years, a court should be reluctant to change the balance that has been struck between railroads and unions.”); See also Burlington Northern R.R. Co. v. Bhd. of Maint. of Way Employes, 961 F.2d 86 (5th Cir.1992).

*1331Perhaps the majority is correct that BMWE is “exploiting, with impunity, this inherent loophole in the RLA” by repeatedly calling surprise strikes over minor disputes knowing that, under Brown, BMWE would not be liable for monetary damages. (Opinion at 324-25.) Given BMWE’s recent history of such practices, perhaps the balance of power between railroads and unions should be realigned to prevent unions from using surprise strikes as a “proverbial club to extort from the carrier the results it seeks.”2 (Opinion at 1329.) This change in the law, however, should be accomplished by an act of Congress. See Burlington Northern R.R. Co. v. Bhd. of Maint. of Way Employes, 481 U.S. 429, 452-53, 107 S.Ct. 1841, 1855, 95 L.Ed.2d 381 (1987) (declining, “at this advanced stage of the RLA’s development,” to find a newly recognized limit on secondary picketing; reasoning that if Congress should now find that unions have abused their power, “it is for the Congress, and not the Courts, to strike the balance between the uncontrolled power of management and labor to further their respective interests.”) (internal quotes and citations omitted).3

Principles underlying the doctrine of stare decisis outweigh any doubts I have about the correctness of the decision in Brown. “Adherence to precedent promotes stability, predictability, and respect for judicial authority.” Hilton v. South Carolina Public Ry. Comm’n., 502 U.S. 197, 202, 112 S.Ct. 560, 564, 116 L.Ed.2d 560 (1991). Additionally, “stare decisis is most compelling” where, as here, “a pure question of statutory construction” is involved. Id. at 205, 112 S.Ct. at 565. Therefore, I respectfully disagree with the majority’s suggestion that the court take this case en banc and overrule Broum.

. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.

. In Burlington Northern & Santa Fe Ry. Co. v. Bhd. of Maint. of Way Employes, 286 F.3d 803, 808 (5th Cir.2002), the Fifth Circuit described BMWE’s deliberate policy of repeatedly calling illegal surprise strikes. Id. at 804-805, 808. The Fifth Circuit found BMWE’s "long history of systemic abuse” justified a permanent, preemptive injunction requiring BMWE to give ten days’ notice before initiating a strike against any of the carriers (which included CSXT). Id. at 808. Thus, if BMWE continues its practice of initiating illegal surprise strikes, it presumably will be subject to penalties for violating the injunction.

. The majority argues that since Congress remained silent on the issue of monetary remedies under the RLA after the Supreme Court's decision in Franklin (in which the Court found monetary remedies available under Title IX), we can presume that Congress intended monetary remedies to be available under the RLA. (Opinion at 1329.) We might just as well presume from the congressional silence following Brown — and the three other court of appeals decisions finding monetary remedies not available under the RLA for an illegal strike — that Congress is content with the use of injunctive relief to enforce the RLA.