Argued: January 11, 2013
Appeal from a March 29, 2012, Judgment of the United States District Court for the Southern District of New York (Koeltl, J.), which dismissed for lack of subject matter jurisdiction the plaintiff's appeal from a special adjustment board decision made pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. The plaintiff contends that the district court had subject matter jurisdiction under 45 U.S.C. § 153 First (q) and Second because the special adjustment board exceeded its jurisdiction. We hold that challenges to the jurisdiction of a special adjustment board are subject to waiver if a party concedes the issue during proceedings before the board. We conclude that the plaintiff has waived his argument here. Accordingly, for the reasons stated below, the district court's dismissal of the plaintiff's complaint is AFFIRMED.
Brian Gardner, Sullivan Gardner, P.C., New York, NY, for Plaintiff-Appellant.
Carol Sue Barnett (Sofia C. Hubscher and Seth J. Cummins, on the brief), New York, NY, for Defendants-Appellees.
Before: Kearse and Katzmann, Circuit Judges, Rakoff, District Judge. [**]
Katzmann, Circuit Judge:
This case concerns the scope of a district court's review of a special adjustment board decision made pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. Plaintiff-Appellant Eugene Sokolowski and his former employers, Defendants-Appellees the Metropolitan Transportation Authority and its subsidiaries the MTA Metro-North Railroad and MTA Metro-North Commuter Railroad (collectively, the "MTA"), dispute whether the district court had subject matter jurisdiction to hear an appeal from a decision of a special adjustment board. By summary order filed simultaneously with this opinion, we have addressed all but one issue in dispute. We publish to consider a question of first impression for this Court: whether a party waives a challenge to the jurisdiction of a special adjustment board by explicitly conceding before the board that the board has jurisdiction. We hold that under these circumstances such a jurisdictional challenge is waived. Consequently, we affirm the district court's dismissal of Sokolowski's complaint.
A. Factual Background
On July 16, 2010, acting on a confidential tip, members of the MTA police department and representatives of the MTA Inspector General entered an office at Grand Central Terminal to check for possible drug activity. In the office, they observed Sokolowski, as well as two other employees of the Metro-North Commuter Railroad Company ("Metro-North"), in the presence of a bottle of alcohol, two bags of marijuana, a metal pipe, and a metal disk. An MTA detective asked the employees whether they were in possession of any other contraband, and Sokolowski removed from his pocket a plastic bag containing marijuana. Sokolowski's urine was subsequently analyzed; it tested positive for marijuana.
In accordance with the collective bargaining agreement governing Sokolowski's employment, the MTA afforded Sokolowski a hearing to determine what, if any, disciplinary action would be taken against him. At the hearing, Sokolowski's representative stated for the record that he had contacted MTA officials regarding the applicability of an agreement titled "Operation: S.A.V.E. Agreement between Metro-North Commuter Railroad and American Railway Supervisors Association" (capitalization omitted) ("SAVE Agreement"), but that the officials had not responded. The SAVE Agreement requires the MTA to provide a waiver allowing an individual who has committed a "substance [abuse] rule violation which is a first offense and which does not involve any other apparent rule violation" to return to service if the employee takes part in the Metro-North Employee Assistance Program. J. App'x 309-11. The SAVE Agreement further states that "[i]f and when disagreements arise as a result of interpretations of the [SAVE] Agreement, a committee of three . . . will meet as expeditiously as possible to resolve any matters in dispute." J. App'x 311. Sokolowski's representative stated at the hearing that the purpose of his calls to MTA officials was to request a meeting of a "committee of three."
Approximately a week after the hearing, General Superintendent R. F. Saraceni issued a Notice of Discipline informing Sokolowski that the discipline to be imposed was "[d]ismissal in all capacities." J. App'x 248. Sokolowski appealed the decision to the Labor Relations Department of the MTA. The Manager of Labor Relations denied the appeal.
Sokolowski then appealed this denial to a special adjustment board that had been established pursuant to 45 U.S.C. § 153 Second as an alternative forum to the National Railroad Adjustment Board ("NRAB"). The special adjustment board (the "Board) was established by and hears disputes between Metro-North and the American Railway and Airway Supervisors Association. In the June 30, 1987, agreement establishing the Board (the "SAB Agreement"), the parties agreed that the Board would have "exclusive jurisdiction over all final appeals in . . . discipline proceedings." J. App'x 486.
On appeal before the Board, Sokolowski contended that he should have been offered a waiver pursuant to the SAVE Agreement. He submitted to the Board a number of documents, including a transcript of his disciplinary hearing. He stated that "[t]he dispute is now ...