The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
I conclude that this Court lacks subject matter jurisdiction over this action. Accordingly, in response to defendant's motion, the complaint will be dismissed, without prejudice and without costs.
Plaintiff successfully prosecuted a claim against defendant pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). The case was tried before Judge Brieant and a jury, 84 Civ. 9028 (CLB). The jury awarded plaintiff $50,000. The Clerk entered judgment. Neither party appealed. I am advised by counsel for defendant that the judgment will soon be paid. That FELA litigation is over.
Plaintiff now invokes the FELA in this new action as a jurisdictional vehicle for challenging her administrative termination by defendant after the trial. Defendant purportedly based that action on its "review of reports from your doctor and his testimony during your recent trial in a Federal Court that you cannot return to work in Train Service due to permanent disability." Defendant's letter to plaintiff of June 24, 1985, Ex. A to complaint.
Plaintiff alleges that she is in fact able to work; that her termination was in retaliation for her pursuit of an FELA remedy; that it forms a part of defendant's ongoing scheme to frighten all its employees from bringing FELA actions; and that the scheme is a "device" violative of section 5 of the FELA, 45 U.S.C. § 55.
Because of her present straitened circumstances, plaintiff asks for a preliminary injunction of reinstatement.
I accept the representations of plaintiff's counsel concerning the difficult situation in which she and her children presently find themselves. Doing so, it is impossible not to be sympathetic. But federal courts are courts of limited jurisdiction. It is for Congress, and the executive branch acting pursuant to delegated congressional authority, to enact the laws and regulations that create and govern citizens' rights and remedies; subject, of course, to the limitations of the Constitution. Courts cannot fashion remedies contrary to valid congressional enactments.
In the case at bar, plaintiff alleges a wrongful discharge. The sole source of plaintiff's right not to be discharged and of defendant's obligation to restore her to employment following injury is the collective bargaining agreement between defendant and plaintiff's union. Absent that agreement, plaintiff would be terminable at defendant's will. In those circumstances, plaintiff must follow the grievance and arbitration procedures set forth in the Railway Labor Act, 45 U.S.C. § 153. That remedy is exclusive, and precludes this Court's jurisdiction. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972).
Plaintiff's invocation of section 5 of the FELA is unavailing. That follows under the Andrews rationale; and also because the FELA does not proscribe every "device" employed by a railroad which might arguably be characterized as unfair. The statute proscribes only those devices whose intent is "to enable any common carrier to exempt itself from any liability created by this chapter...." (emphasis added). The provision is inapplicable to the case at bar because nowhere in the FELA is there a "liability" created to continue an individual in the carrier's employment.
These conclusion are supported by authorities in other circuits with whose analyses I agree. Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th Cir. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1000, 79 L. Ed. 2d 233 (1984); Greenwood v. The Atchison, Topeka and Santa Fe Railway Co., 129 F. Supp. 105 (S.D.Cal. 1955). I am cited to no contrary Second Circuit authority; and in any event, regard Andrews, supra as controlling.
I am not persuaded by plaintiff's counsel that the cited cases are distinguishable on their facts. However, the case upon which plaintiff places primary reliance, Kozar v. Chesapeake and Ohio Railway Co., 320 F. Supp. 335 (W.D.Mich. 1970), modified on other ground, 449 F.2d 1238 (6th Cir. 1971), is clearly inapposite. In Kozar the district judge properly condemned defendant railroad for overreaching and browbeating the widow of a railroad employee killed in an industrial accident, for the express purpose of dissuading her from filing an action under the FELA. The language which plaintiff quotes from Kozar in her brief at pp. 5-7 is immediately preceded by these comments of the district judge, who had first set forth the transcript of a hearing into the railroad's behavior after the death:
"John Kozar was, according to the testimony, one of the Chesapeake and Ohio's most valuable employees. He was killed while serving, to the extent of his ability, the best interests of the railroad. The above indicates a strong probability that, from the moment of his death, his employer adopted some rather primitive means in an attempt to defeat the just claims of his widow under a statute specifically designed for his own and his family's protection."
In the case at bar, no such pre-FELA litigation conduct on the part of ...