Rilling v. Burlington Northern R. Co.

• Decision Date: 07 May 1990
• Docket Number: No. 89-35190,89-35190
• Citation: 909 F.2d 399
• Parties: 134 L.R.R.M. (BNA) 3067 William A. RILLING, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 399

909 F.2d 399

134 L.R.R.M. (BNA) 3067

William A. RILLING, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware

Corporation, Defendant-Appellee.

No. 89-35190.

United States Court of Appeals, Ninth Circuit.

Submitted May 7, 1990. ^*

Decided July 30, 1990.

Owen J. Wales, Seattle, Wash., for plaintiff-appellant.

Susan L. Pierini, Kurt W. Kroschel & Associates, Bellevue, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before FARRIS, PREGERSON and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

William A. Rilling appeals the magistrate's grant of summary judgment in favor of Burlington Northern Railroad Co. (Burlington or the company). Rilling alleges that Burlington breached labor protective conditions which the Interstate Commerce Commission (ICC) had imposed on Burlington pursuant to the merger which formed the company. The magistrate found that he had jurisdiction to determine the validity of a release which Rilling executed in favor of Burlington, and that the release was valid, entitling Burlington to summary judgment. We conclude that the ICC had primary jurisdiction over Rilling's claim, and we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Rilling was the manager of Burlington's Seattle Regional Accounting Office. Burlington reorganized this office in March 1986, eliminating Rilling's position. Rilling was entitled to rights under labor protective conditions the ICC imposed on Burlington in conjunction with the 1970 merger that created the company. See Great N. Pac.--Merger--Great N., 331 I.C.C. 228 (1967), aff'd sub nom. United States v. United States, 296 F.Supp. 853 (D.D.C.1968), aff'd sub nom. United States v. Interstate Commerce Comm'n, 396 U.S. 491, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970) (Northern Lines). Pursuant to its interpretation of these conditions, Burlington advised Rilling that to stay with the company, Rilling would have to accept a reduction of his $3,535 per month salary to $1,005 per month and a transfer to a site designated by Burlington.

Burlington also offered Rilling an alternative. If Rilling executed a release agreement relinquishing his labor protective rights, the company would grant Rilling a leave of absence until he was eligible for early retirement, health care benefits during this leave, and six months' salary (totaling $21,129). Rilling accepted this arrangement and executed the release on April 21, 1986.

In a case involving another employee, the ICC subsequently determined that Burlington's interpretation of the labor protective conditions was incorrect and that Burlington had breached the merger agreement. Great N. Pac. & Burlington Lines, Inc., Finance Docket No. 21478 (Sub-No. 6) slip op. (November 25, 1986) WESTLAW FTRAN-ICC database and 1988 ICC LEXIS 100 (March 16, 1988). Rilling filed suit in federal district court seeking a similar result in his case. Rilling and Burlington consented to proceed through trial before a magistrate. The magistrate found that the release was valid and binding on Rilling and that it therefore precluded his claim. The court then entered summary judgment in favor of Burlington.

DISCUSSION

We review the magistrate's grant of summary judgment de novo to determine whether he properly applied the relevant substantive law and whether a genuine issue of material fact exists. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629-32 (9th Cir.1987). The existence of subject matter jurisdiction is a question of law reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990).

Rilling did not include a statement of jurisdiction in his complaint or in his briefs to this court. "Since [Rilling] made no allegations in the complaint respecting the citizenship of [Burlington] or the dollar value of the amount in controversy, the district court could not properly exercise diversity jurisdiction over [his] claim." Citizen's Comm. to Save the Land Grant Railroads v. Burlington N., Inc., 708 F.2d 1430, 1435 (9th Cir.1983); see 28 U.S.C. Sec. 1332 (1982). Thus, the magistrate could have properly exercised jurisdiction only if Using the ICC labor protective conditions as the basis for subject matter jurisdiction, however, raises the issue of whether the ICC has primary jurisdiction over Rilling's underlying claims. "Primary jurisdiction is a doctrine of common law, wholly court-made, that is designed to guide a court in determining whether and when it should refrain from or postpone the exercise of its own jurisdiction so that an agency may first answer some question presented." 4 K. Davis, Administrative Law Treatise 81 (2d ed. 1983); see Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494-95, 96 L.Ed. 576 (1952). "The doctrine is applicable in federal courts when an action 'requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.' " United States v. Yellow Freight Sys., Inc., 762 F.2d 737, 739 (9th Cir.1985) (quoting United States v. Western Pac. R.R., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956)). Other circuits have concluded that the ICC has primary jurisdiction over claims arising from labor protective conditions it has imposed in a merger approval order. See Engelhardt v. Consolidated Rail Corp., 756 F.2d 1368, 1369 (2d Cir.1985) (per curiam); Zapp v. United Transp. Union, 727 F.2d 617, 625 (7th Cir.1984); Augspurger v. Brotherhood of Locomotive Eng'rs, 510 F.2d 853, 860 (8th Cir.1975).

                Rilling's claim arises under federal law--in this case, the ICC labor protective conditions imposed on Burlington in Northern Lines.    See 28 U.S.C. Sec.

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