Unpublished Disposition, 855 F.2d 862 (9th Cir. 1988)

MEMORANDUM^** 

United Transportation Union ("UTU") appeals a district court vacatur of awards by a Railway Labor Act ("RLA") public law board that adjudicated claims against the Pacific and Arctic Railway and Navigation Company ("PARN").

The board ruled in UTU's favor. PARN petitioned for review. See 45 U.S.C. § 153 First (q). The parties apprised the district court of the statutory standard for vacatur of RLA awards, but persuaded it that parties before an RLA board have also a Fifth Amendment due process right to an impartial, unbiased, "neutral member." Judge Fitzgerald then found that the neutral member of Board 3211, Arthur Sempliner, acted improperly and had been clearly biased in favor of UTU. He vacated the award, explaining:

It cannot be disputed ... that a neutral arbitrator's actual and demonstrated bias in favor of one party and against another necessitates the vacatur of his awards. While the procedural improprieties, non-disclosures, and irregularities in the Awards themselves might justify vacatur, in this case I look to these facts primarily as reinforcing my conclusion that Sempliner was in fact biased. The overall course of conduct engaged in by Sempliner and Levin, the uncreditable explanations of that conduct offered by Levin and Sempliner themselves, Sempliner's actual assumption of an advocate's role, and the gross infirmities in the Awards themselves conclusively demonstrate that Sempliner was throughout this proceeding prejudiced in favor of the union and biased against Pacific and Arctic Railway and Navigation Company, and that the Awards in Public Law Board 3211 are solely a product of that bias and prejudice. On this ground, I order vacatur of the Awards.

Findings and Conclusions at 43 (emphasis added).

The RLA sets forth the standards by which district courts are to review public law board orders. This review has been described as "among the narrowest known to the law." Int'l Ass'n of Machinists v. So. Pac. Transp., 626 F.2d 715, 717 (9th Cir. 1980) (quoting Diamond v. Terminal R. Alabama State Docks, 421 F.2d 228, 233 (5th Cir. 1970)).

Awards by an RLA arbitration board are conclusive and may be set aside by the district court only if (1) the board failed to comply with the requirements of the Railway Labor Act; (2) the board failed to conform, or confine itself to matters within the scope of its jurisdiction; or (3) the district court finds fraud or corruption by a member of the board. 45 U.S.C. § 153 First (q); Int'l Ass'n of Machinists, 626 F.2d at 717. Appellant union argues that, since the court made no finding of fraud or corruption, its finding of bias and prejudice is insufficient for vacatur of the arbitrators' awards.

The parties ask this court to determine the propriety of the court's ruling that RLA arbitrations implicate due process rights under the Fifth Amendment to the United States Constitution. We decline the invitation.

The circuits are split on that question. Compare Jones v. St. Louis-San Francisco R. Co., 728 F.2d 257, 261 n. 3 (6th Cir. 1984) (Supreme Court has "expressly denied" due process as a ground for judicial review of RLA awards) with e.g., Hayes v. Western Weighing and Inspection Bureau, 838 F.2d 1434, 1435 (5th Cir. 1988) (due process review of RLA awards has been "cabined"). The leading Supreme Court case, Union Pac. R. Co. v. Sheehan, 439 U.S. 89 (1978), did not focus on due process challenges per se.

This case warrants application of the "traditional practice of ... refusing to decide constitutional questions when the record discloses other grounds of decision." Tung Chi Jen v. INS, 566 F.2d 1095, 1096 (9th Cir. 1977) (quoting Neese v. Southern R. Co., 350 U.S. 77, 78 (1955)). As we have explained,

The rule that constrains this court from resolving a constitutional issue when a non-constitutional ground of decision is available must bind the courts and administrative agencies this court reviews, for if it did not, such courts and agencies by unnecessarily deciding constitutional issues would compel this court to resolve these issues as well.

Tung Chi Jen, 566 F.2d at 1096.

We express no opinion whether the record in this case would support a finding of fraud or corruption, or whether the associated findings of irrationality (Findings and Conclusions at 43) or failure of the award to "draw its essence" from the terms of the collective bargaining agreement (Findings and Conclusions at 39), would suffice for vacatur of this award. Judge Fitzgerald emphasized that vacatur here was predicated on due process analysis and his finding of bias or prejudice. He erred in resolving first, and only, the constitutional issue when a statutory ground for decision was presented by the parties.

CONCLUSION

We REVERSE and REMAND to the trial court for application of the statutory standard through such further proceedings as it deems proper.

Further proceedings before this court will be referred to this panel.

SNEED, Circuit Judge, concurring in judgment only.

I would accept the "invitation" to confront the district court's "ruling that RLA arbitrations implicate due process rights under the Fifth Amendment to the United States Constitution."

Following that acceptance, I would hold that under the RLA only fraud and corruption permit the vacatur of an award; mere bias or partiality would not be enough. Both Jones v. St. Louis-San Francisco Ry., 728 F.2d 257, 261 n. 3 (6th Cir. 1984), and Hayes v. Western Weighing and Inspection Bureau, 838 F.2d 1434, 1436 (5th Cir. 1988), lend support, in different degrees of strength, to such a holding.

Finally, I would hold that the RLA so interpreted does not violate the Due Process Clause of the Fifth Amendment.

These two holdings would require a reversal of the judgment below and a remand to the district court to determine whether fraud and corruption existed. Therefore, I agree with the decision of the majority to reverse and remand. Moreover, I would authorize such further proceedings as might be necessary to resolve the issue whether fraud and corruption existed.

The course I suggest would expedite the disposition of this case because it would preclude a second appeal in which once again the issue would be whether a finding of only bias and partiality would permit the vacatur of an award. The only difference between such an appeal and that presently before us is that the district court in the second would have said it would be in violation of the Due Process Clause to deny such vacatur. That issue would then be before us squarely and unmistakably.

It is true that by holding that fraud and corruption existed the district court could avoid the constitutional issue. This would be true because the RLA permits such vacatur and to do so would not violate the Due Process Clause. Did I believe that there was a high probability that the district court would find fraud and corruption I would readily acquiesce in the decision of the majority. I have no such belief. Moreover, on the record before us a finding of "irrationality" or a failure of the award to "draw its essence" from the terms of the collective bargaining agreement would strike me as but the bias-partiality-due process argument arrayed in concealing garments.

In a nutshell, constitutional decisions that can be avoided once and for all should be avoided by trial courts, administrative courts, and appellate courts. This is the proper reading of Tung Chi Jen v. INS, 566 F.2d 1095 (9th Cir. 1977). On the other hand, temporary avoidance of a constitutional issue on the basis of a faint hope that the lower court might eliminate the issue is not the teaching of Tung Chi Jen.