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A frolic of its own
March 20, 2005 by Ross Runkel at LawMemo

What to do with a federal Circuit Court that is grossly insubordinate to the will of Congress and instructions from the US Supreme Court?

The 5th Circuit in Continental Airlines v. Teamsters (5th Cir 11/15/2004) made it clear that it intends to continue to be a renegade - reciting the rules correctly and then refusing to apply them.

On March 14 the union filed a petition for a writ of certiorari asking the Supreme Court to bring the Circuit back into line.

Brief facts:

Employee Johnson was on a last chance agreement and an EAP agreement. The company discharged him because he tested positive for alcohol. The union grieved and the dispute went to an Adjustment Board - an arbitration board provided for by the Railway Labor Act. The agreements disallowed any use of alcohol, and required Johnson to notify the company "if your doctor prescribes medication that contains alcohol." Johnson took cough medicine on instructions from his doctor's staff, and notified the company. The Board held that he had complied with his agreements and ordered him reinstated.

The 5th Circuit's decision:

Because there was no evidence that Johnson ever saw his doctor or that the doctor's staff consulted with the doctor, "Johnson's doctor never approved the use of cough medicine." The Board's "interpretation is not an arguable construction of the agreements" because "the Board's interpretation effectively reads 'doctor' out of the EAP agreement."

What's really happening here:

Rebellion, pure and simple. The 5th Circuit (1) recited the correct standard of review, and then (2) reversed the Board on its findings of fact and (3) reversed the Board on its interpretation of the agreement.

The 5th Circuit is a recidivist.

Paperworkers v. Misco, 484 US 29 (1987), came from the 5th Circuit. There the Supreme Court chose the strongest possible words about court review of arbitrators' factfinding and contract interpretation. (1) There is no court remedy for an arbitrator's "improvident, even silly factfinding." (2) "The courts ... have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim." [Quoting Steelworkers v. American Mfg, 363 US 564 (1960)]

What's at stake?

(1) The structure Congress created for resolving disputes in the rail and airline industries, and the arbitration systems in use in other industries. If the 5th Circuit continues substituting its own version of the facts and its own interpretation of agreements, then these systems will be wrecked. Cough syrup grievances will be resolved in the courthouse instead of by arbitrators - flouting the will of Congress and needlessly adding to judicial workloads. (2) The rule of law. The 5th Circuit's defiant approach of paying lip service to the rules and then refusing to follow them undermines the rule of law, the supremacy of Congress in law-making, and the supremacy of the Supreme Court in the federal judicial system. Yuck!

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