organizations of the parties to the dispute.' Therefore, since the Railroad Adjustment Board is composed of representatives of the parties as provided by Section 153 of Title 45, supra, it is excluded from the operation of the Administrative Procedure Act and a party aggrieved by this Board's decision cannot seek a review under this Act. Barnett v. Pennsylvania-Reading Seashore Lines, supra.
The problem of providing the aggrieved employee with a review of the Railroad Adjustment Board's adverse decision has been passed upon by the Third Circuit in Barnett v. Pennsylvania-Reading Seashore Lines, supra. The holding was clear in that it denies any right of review to the plaintiff therein. It should be noted, however, that the present case sets forth a claim for review not only on the merits but also on the basis of alleged procedural irregularities; the latter basis for review was not presented for the court's consideration in the Barnett case. But it appears that in spite of that factor, the decision in the Barnett case is broad enough to encompass and dispose of the case at bar and is, of course, binding authority upon this court.
This court has on this day filed an opinion in a somewhat similar case, namely, Day v. Pennsylvania R. Co., D.C., 155 F.Supp. 695, wherein it reviewed this question and it might be well to reiterate what was said therein:
'In the DePriest case (Day v. Pennsylvania R. Co.) supra, Judge Maris said (245 F.2d 485):
"* * * On the contrary the stay here was sought merely because of the rule of law laid down by the Supreme Court in Slocum v. Delaware L. & W.R. Co., 1950, 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795, and Order of Railway Conductors of America v. Southern Railway Co., 1950, 339 U.S. 255, 70 S. Ct. 585, 94 L. Ed. 811, that the National Railroad Adjustment Board has exclusive jurisdiction to decide the question raised in this case as to the construction of the labor agreement here sued on.'
"* * * Nor can we ignore the fact that even if the plaintiff's right is established by the board the amount of the claim at least may well have to be established in the present action in the district court. We, therefore, think it not inappropriate to suggest that the district court, upon plaintiff's application, may well be moved to modify the existing stay of proceedings to the extent necessary to permit the parties to undertake depositions, discovery and other pre-trial procedure in order that the evidence which is now available may be preserved for use at the trial of the action when and if it takes place.' (Emphasis supplied.)
'To this court this at the very least creates an inference that Judge Maris was of a mind that the determination by the National Railroad Adjustment Board if it was against the position of the present plaintiff, was final.
'In Barnett v. Pennsylvania-Reading Seashore Lines, supra, Judge Goodrich said (245 F.2d 581):
"* * * A legislative policy permitting court reexamination of monetary awards but no review in cases where no award is made is not a matter for us to question unless it violates constitutional rights. This statutory scheme does not.
"The view just expressed, that there can be no judicial review when the Board fails to give relief to an employee, is that of other courts which have had occasion to examine the question. Sometimes the conclusion is put on the basis that the statute giving the Board's order finality means what it says. No review is provided for and that is the end of it. Reynolds v. Denver & R.G.W.R. Co., 10 Cir., 1949, 174 F.2d 673; Weaver v. Pennsylvania R.R., D.C.S.D.N.Y.1956, 141 F.Supp. 214; Greenwood v. Atchison, T. & S.F. Ry. Co., D.C.S.D.Cal.1955, 129 F.Supp. 105; Futhey v. Atchison, T. & S.F. Ry. Co., D.C.N.D.Ill.1951, 96 F.Supp. 864; and Berryman v. Pullman Co., D.C.W.D.Mo.1942, 48 F.Supp. 542, 543, where the court said: 'That finding is made final by the statute. There is no room for a subsequent inquiry into the same question by the Courts.' Occasionally res judicata is given as the reason. Ramsey v. Chesapeake & O.R. Co., D.C.N.D.Ohio 1948, 75 F.Supp. 740. Other decisions put the result squarely upon the election of remedies theory. Plaintiff having chosen to go to the Board, he cannot now, after losing, come to a court. Majors v. Thompson, 5 Cir., 1956, 235 F.2d 449; Michel v. Louisville & N.R. Co., 5 Cir., 188 F.2d 224, certiorari denied 1951, 342 U.S. 862, 72 S. Ct. 87, 96 L. Ed. 648; cf. Kelly v. Nashville, C. & St. L. Ry., D.C.E.D.Tenn.1948, 75 F.Supp. 737 (court action brought while proceedings were pending before the Board).
"Regardless of the path taken judicial authority arrives at the same place. The cases which preserve the possibility of court review if the Board has acted unconstitutionally or has gone outside its jurisdiction should be kept in mind. But they are not in point in this case which is a plain challenge to the decision reached by the Board on the merits of the plaintiff's claim."
It is, naturally, not for this court to criticize Congressional enactment even if it were of such a mind but the plaintiff makes the cogent argument that he was forced to go to the Railroad Board of Adjustment, that when he got there they acted in an illegal fashion and that his constitutional rights are violated if he is denied a review in this court. This does seem contrary to the American scheme of things at first blush but on closer scrutiny, is this so?
In the first place, under the Moore holding, supra, he was not compelled to go to the Board but could have accepted the action of the employer and sued for his alleged wrongful discharge. In the second place, he had no right as the Constitution was written to bring a suit for this action in a United States District Court for this court is a statutory court and just as Congress had the authority to establish the court so it, likewise, has the authority, as it has on many occasions, to either enlarge or restrict the jurisdiction of the court. Therefore, if Congress creates this body, namely, the Railroad Adjustment Board, as an expert body to deal with such matters and if the employee elects to go there, it seems perfectly rational that Congress has the right to make such election by the present plaintiff final and binding.
It, therefore, seems under all the authority hereinbefore cited that this court is impelled to the conclusion that there is no judicial review of an action denying a claim of an employee by the Railroad Adjustment Board and, consequently, without jurisdiction in this matter. If, on the other hand, we are in legal error in this regard, it would seem to the court that upon a review of such a Board's action the Board itself would be an indispensable party for after all it is its actions which are under attack.
This would seem to be so under the ruling of the Supreme Court in Blackmar v. Guerre, 1952, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534. There, a discharged employee of the Veterans Administration in New Orleans appealed to the regional office of the Civil Service Commission located in New Orleans. He won and was ordered reinstated. The Veterans Administration appealed to the Board of Appeals and Review located in Washington, D.C. The Board reversed the regional office. The employee then instituted suit in United States District Court in Eastern District of Louisiana. In holding that the United States Civil Service Commission was an indispensable party and dismissing the action the court, through Mr. Justice Minton, said (342 U.S. at page 514, 72 S. Ct. at page 411):
'If the Commission could be sued eo nomine, we would be confronted with the question of whether service as here made would be sufficient to bring the Commission into court; but Congress has not constituted the Commission a body corporate or authorized it to be sued eo nomine.'
And further (342 U.S. at page 515, 72 S. Ct. at page 412):
'Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court.'
And further (324 U.S. at page 516, 72 S. Ct. at page 412):
'* * * The courts of the District of Columbia are the only courts of 'competent jurisdiction' to reach the members of the Civil Service Commission.
'Since the members of the Civil Service Commission were never served, and could not be served, in the District Court for the Eastern District of Louisiana, and the Civil Service Commission is not a corporate entity, it follows that the only defendant before the court was Guerre, and, as we have pointed out, no relief could possibly be granted against him in these proceedings, the judgment is affirmed.'
This court is, therefore, of the opinion that it has no jurisdiction of the subject matter of the suit and, consequently, the motion to dismiss the complaint will be granted.
Counsel will prepare an appropriate order.
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