The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
Before the Court is the defendant's motion for summary judgment ,
requesting disposition in its favor and dismissal of the plaintiff's
action pursuant to Fed.R.Civ.P. 56(b), and the plaintiff's motion for
summary judgment , requesting an order directing the defendant to
arbitrate Grievance No. 02-03.
Upon consideration of the motions, the applicable law and the record in
this case, the Court finds there are no genuine issues of material fact
in dispute and that the defendant is entitled to judgment as a matter of
law. Therefore, the Court will grant the defendant's Motion for Summary
Judgment, deny the plaintiff's Motion for Summary Judgment, and dismiss
On September 25, 2002, the plaintiff, the Air Line Pilots Association
("ALPA"), filed the instant action against the defendant, Federal Express
Corporation ("FedEx"), pursuant to the
Railway Labor Act ("RLA"), 45. U.S.C. § 151-188, seeking injunctive
relief to compel arbitration of a dispute purportedly arising under the
collective bargaining agreement ("Agreement") between the plaintiff and
the defendant. After an extended period of discovery, both parties filed
motions for summary judgment on August 15, 2003. Subsequent oppositions
and replies were also filed by both parties.
Prior to the terrorist attacks on September 11, 2001, non-FedEx pilots
("offline pilots") had "jumpseat" privileges by way of industry practice
and a "Reciprocal Jumpseat Agreement." On September 18, 2001, the
government issued an order restricting cockpit jumpseat access to
employees of an air carrier. See United States Department of
Transportation Federal Aviation Administration, Subject: Threat to U.S.
Aircraft Operators, Security Directive No. 108-01-03F (September 18,
2001). Soon thereafter, FedEx revoked both the cockpit jumpseat
privileges as well as the "supernumerary jumpseat" privileges previously
extended to offline pilots. "Supernumerary" jumpseats, jumpseats that are
located outside of the cockpit, are at issue in this action. ALPA filed a
grievance seeking arbitration of the issue of offline pilots' access to
FedEx supernumerary jumpseats and an order reinstating jumpseat
privileges for offline pilots. FedEx refused to process the grievance,
maintaining that the issue of offline pilots' access to supernumerary
jumpseats is nonarbitrable under the Agreement, and not otherwise covered
by contract. At issue in the instant case is whether FedEx is required to
arbitrate a grievance concerning the access of non-FedEx pilots to
jumpseats on FedEx aircraft.
Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate when the
motion papers, affidavits, and other submitted evidence demonstrate that
no genuine issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex
Corp. V. Catrett, 477 U.S. 317, 322 (1986). Whether a fact is "material"
is determined in light of the applicable substantive law invoked by the
action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
light of the applicable substantive law, a "genuine issue of material
fact" is a fact that is determinative of a claim or defense, and
therefore, affects the outcome of the case. See Celotex, 477 U.S. at
322; Anderson, 477 U.S. at 248. Because the Court does not sit as a
fact-finder, it is precluded from weighing evidence or finding facts and
must draw all inferences and resolve all doubts in favor of the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587 (1986). In the case of cross motions for summary
judgment, the Court must consider each motion separately, with each
movant bearing the burden of supporting its motion. See Initiative and
Referendum Institute v. U.S. Postal Serv., 116 F. Supp.2d 65, 69 (D.D.C.
2000). Disposition by summary judgment is precluded when determination of
a genuine issue of material fact might result in a reasonable jury
returning a verdict in favor of the non-moving party. See Anderson, 477
U.S. at 248; Morgan v. Federal Home Loan Mortg. Corp., 328 F.3d 647, 651
(D.C. Cir. 2003).
An issue of substantive arbitrability whether the parties'
dispute involves subject matter that is within the ambit of the
arbitration agreement is to be decided by a court, not an
arbitrator. See AT &T Technologies, Inc. v. Communications Workers of
America, 475 U.S. 643, 649 (1986). Arbitrators are not vested with such
power because their authority to resolve disputes exists only by virtue of
the parties' advance agreement to submit themselves and certain subject
matter to arbitration. See AT&T, 475 U.S. at 648-49. Although doubts
about the arbitrability of an issue should be resolved in favor of
coverage, see Northwest Airlines v. ALPA, 808 F.2d 76, 82 (D.C. Cir.
1987), a court may find that an issue is nonarbitrable when there is
"positive assurance that the ...