United Transportation Union v. Burlington Northern Santa Fe Railway Co. , 708 F. App'x 330 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED TRANSPORTATION UNION No. 15-35818
and RICHARD D. KITE,
D.C. No. 3:10-cv-05808-RBL
Plaintiffs-Appellants,
v. MEMORANDUM*
BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 7, 2017
Seattle, Washington
Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.
In this comeback case, Plaintiffs-Appellants United Transportation Union and
Richard Kite (collectively, UTU) appeal the judgment in BNSF Railway Company’s
(BNSF’s) favor following a stipulated bench trial, which found that UTU failed to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
prove by clear and convincing evidence the presence of corruption during a
mandatory arbitration process relating to BNSF’s discharge of Kite. We affirm.
The district court adhered to the previous panel’s remand instructions. The
previous panel’s instructions were to sort through the contested facts to determine if
corruption occurred by clear and convincing evidence, and if it did, what remedy
might be appropriate. United Transp. Union v. BNSF Ry. Co., 710 F.3d 915, 934–
35 (9th Cir. 2013). The Findings of Fact and Conclusions of Law adhered to these
instructions. Although UTU argues that the district court examined the underlying
merits of the case—rather than any corruption—there is no indication the case was
decided on anything other than whether the arbitration process was tainted by
corruption. Because this was “the determination sought by remanding the matter[,]
[t]he district court did not exceed its jurisdiction on remand.” L.A. Police Protective
League v. Gates, 995 F.2d 1469, 1477 (9th Cir. 1993).
Nor was the credibility determination regarding Jacalyn Zimmerman, to
which we must give special deference, clearly erroneous. See United States v.
Haswood, 350 F.3d 1024, 1028 (9th Cir. 2003). “[A] factfinder may . . . credit one
witness’s testimony over another’s if both have related coherent and facially
plausible stories that are not contradicted by extrinsic evidence.” Rodriguez v.
Holder, 683 F.3d 1164, 1176 (9th Cir. 2012).
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Here, UTU argues that Zimmerman made inconsistent and self-serving
statements that severely undermined her credibility. The record, however, does not
contradict Zimmerman’s statement that her draft award was written under a belief
of a pending settlement. Further, the district court considered the evidence
purportedly indicating Zimmerman’s testimony was self-serving. Finally, while
UTU argues certain “key evidence” should have been addressed and that it should
have been allowed to call BNSF’s counsel as a trial witness, UTU either fails to
elaborate why the district court was obligated to address this evidence or how it is
distinct from the evidence already in the record.
Additionally, the finding that Roger Boldra’s statements were not the cause
of Zimmerman’s decision to recuse herself was not clearly erroneous. We review
the district court’s factual findings for clear error. Albino v. Baca, 747 F.3d 1162,
1171 (9th Cir. 2014) (en banc). Under this standard, “[i]f the district court’s account
of the evidence is plausible in light of the record viewed in its entirety, the court of
appeals may not reverse it.” Anderson v. Bessemer City, 470 U.S. 564, 573–74
(1985). Here, the district court resolved competing inferences drawn from
Zimmerman and Jay Schollmeyer’s testimonies in making its causation finding. The
district court did not clearly err in finding Zimmerman more credible than
Schollmeyer and basing its causation finding on Zimmerman’s testimony.
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Finally, the district judge did not plainly err in failing to sua sponte recuse
himself for bias. Federal law requires a “federal judge to ‘disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.’” Liteky v.
United States, 510 U.S. 540, 541 (1994) (quoting 28 U.S.C. § 455(a)). Recusal is
necessary when the judge’s opinions “display a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Id. at 555. Where, as here,
a party fails to file a formal motion for recusal before the district court, the review is
for plain error. United States v. Holland, 519 F.3d 909, 911 n.1 (9th Cir. 2008).
Although UTU cites to the district judge’s comments that purportedly show bias
against the consumption of any alcohol by a railroad worker and disagreement with
the previous panel’s remand instructions, these comments do not rise to the very
high standard set forth in Liteky.
AFFIRMED.
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