Houchins v. Norfolk & Western Railway Co. , 55 F. App'x 644 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
C. K. HOUCHINS, 
Plaintiff-Appellant,
and
MICHAEL F. BRADY; JEFFERY S.
DAWSON; EDWARD ALLEN FRENCH; J.
W. FULP; JOHN A. GRAY; JARRELL
DALE HALSEY; GARLAND A. HARRIS;
GEORGE T. HARMON; FREDDY
HOWELL; JAMES C. HURT; ROGER L.
MARTIN; HOWARD J. MORRISON;
GEORGE PACK, JR.; THOMAS PERDUE,
SR.; RUFUS SPENCER, JR.; ROBERT  No. 02-2194
WILKES,
Plaintiffs,
v.
NORFOLK & WESTERN RAILWAY
COMPANY, a statutory corporation,
Defendant-Appellee,
v.
UNITED TRANSPORTATION UNION,
Third Party Defendant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, Chief District Judge.
(CA-02-42)
Submitted: January 27, 2003
Decided: February 6, 2003
2 HOUCHINS v. NORFOLK & WESTERN RAILWAY CO.
Before WILLIAMS and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
C. K. Houchins, Appellant Pro Se. Scott Kevin Sheets, HUDDLES-
TON, BOLEN, BEATTY, PORTER & COPEN, Huntington, West
Virginia; Jeffrey Stephen Berlin, Mark E. Martin, Krista Leigh
Edwards, SIDLEY, AUSTIN, BROWN & WOOD, L.L.P., Washing-
ton, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charles K. Houchins appeals the district court’s order granting the
Appellee’s motion to dismiss on the ground that Houchins’ claim is
time barred. For the reasons that follow, we affirm.
This civil action was originally filed in December 2001 by seven-
teen current or former employees of Norfolk & Western Railway
("NWR") in West Virginia state court. These Plaintiffs alleged that
NWR discriminated against them because of their age by ranking
them at the bottom of the conductor seniority list in April 1992, in
violation of the West Virginia Human Rights Act, W. Va. Code §§
5-11-1, et seq. ("WVHRA"). NWR removed the case to the district
court, claiming that the Plaintiffs’ claim arose under the Railway
Labor Act, 45 U.S.C. §§ 151, et seq. ("RLA"). NWR filed a motion
HOUCHINS v. NORFOLK & WESTERN RAILWAY CO. 3
to dismiss Plaintiffs’ claim, contending it is preempted by the RLA,
or in the alternative, is untimely under the WVHRA. The district
court granted NWR’s motion to dismiss on the reasoning that the
Plaintiffs’ WVHRA claim was untimely under West Virginia law and
found it unnecessary to discuss the preemption issue. Fairly con-
strued, the argument made by Houchins on appeal is that the district
court should not have reached his state claim because the action was
improvidently removed to federal court.
A district court may dismiss a state law claim "whose lack of merit
is apparent" without deciding whether the case arose under federal
law for purposes of removal jurisdiction, see Childers v. Chesapeake
& Potomac Tel. Co., 881 F.2d 1259, 1262 (4th Cir. 1989). We find
it is apparent that Houchins’ claim under WHVRA lacks merit. See
McCourt v. Oneida Coal Co., 425 S.E.2d 602 (W. Va. 1992) (apply-
ing two-year limitation period under W. Va. Code § 55-2-12 to
actions under the WVHRA). Thus, the district court properly granted
NWR’s motion to dismiss. See Childers, 881 F.2d at 1262.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED