Jennifer Miller, Scott Poole, and Kevin Englund, Plaintiffs-Appellants,
Southwest Airlines Co., Defendant-Appellee. David Johnson, individually and on behalf of a class, Plaintiff-Appellee,
United Airlines, Inc., and United Continental Holdings, Inc., Defendants-Appellants.
May 28, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 18 C 86 - Marvin
E. Aspen, Judge.
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 C 08858 -
Virginia M. Kendall, Judge.
WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.
Easterbrook, Circuit Judge.
consolidated two appeals that pose a common question: whether
persons who contend that air carriers have violated state law
by using biometric identification in the workplace must
present these contentions to an adjustment board under the
Railway Labor Act (RLA), 45 U.S.C. §§ 151-88, which
applies to air carriers as well as railroads. 45 U.S.C.
§181. The answer is yes if the contentions amount to a
"minor dispute"-that is, a dispute about the
interpretation or application of a collective bargaining
agreement. 45 U.S.C. §§ 151a, 184; Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994).
Plaintiffs insist that a judge should resolve their
contentions, while defendants contend that resolution belongs
to an adjustment board.
claims in each suit arise under the Biometric Information
Privacy Act (BIPA), 740 ILCS 14/5 to 14/25, which Illinois
adopted in 2008. This law applies to all biometric
identifiers, which the statute defines to include
fingerprints. 740 ILCS 14/10. Before obtaining any
fingerprint, a "private entity" must inform the
subject or "the subject's legally authorized
representative" in writing about several things, such as
the purpose of collecting the data and how long they will be
kept, and obtain the consent of the subject or authorized
representative. 740 ILCS 14/15(b). The private entity also
must establish and make available to the public a protocol
for retaining and handling biometric data, which must be
destroyed "when the initial purpose for collecting or
obtaining such identifiers or information has been satisfied
or within 3 years of the individual's last interaction
with the private entity, whichever occurs first." 740
ILCS 14/15(a). Sales of biometric information are forbidden,
740 ILCS 14/15(c), and transfers are limited, 740 ILCS
14/15(d). Private entities must protect biometric information
from disclosure. 740 ILCS 14/15(e).
Southwest Airlines and United Airlines maintain timekeeping
systems that require workers to clock in and out with their
fingerprints. Plaintiffs contend that the air carriers
implemented these systems without their consent, failed to
publish protocols, and use third-party vendors to implement
the systems, which plaintiffs call a forbidden disclosure.
Southwest and United contend that the plaintiffs' unions
have consented-either expressly or through the collective
bargaining agreements' management-rights clauses- and
that any required notice has been provided to the unions. The
air carriers insist that, to the extent these matters are
disputed, an adjustment board rather than a judge must
resolve the difference-and that if state law gives workers
rights beyond those provided by federal law and collective
bargaining agreements, it is preempted by the Railway Labor
suits were assigned to different district judges.
Aspen found that the plaintiffs have standing under Article
III but dismissed the suit against Southwest Airlines for
improper venue. Fed.R.Civ.P. 12(b)(3). 2018 U.S. Dist. LEXIS
143369 (N.D. 111. Aug. 23, 2018). He made clear, however,
that the suit did not belong in state court or some other
federal district court; he held, rather, that it belongs to
an adjustment board under the Railway Labor Act and that any
attempt by Illinois to give workers rights to bypass their
union (Transportation Workers Union Local 555) and deal
directly with an air carrier is preempted by federal law.
Thus dismissal has nothing to do with venue. See 28 U.S.C.
should have been labeled either as a judgment on the
pleadings, Fed.R.Civ.P. 12(c), or a dismissal for lack of
subject-matter jurisdiction, as this circuit's decisions
suggest. See, e.g., Carlson v. CSX Transportation,
Inc., 758 F.3d 819, 824-25 (7th Cir. 2014);
Brotherhood of Maintenance of Way Employees v. Norfolk
Southern Ry., 745 F.3d 808 (7th Cir. 2014); Brown v.
Illinois Central R.R., 254 F.3d 654 (7th Cir. 2001). But
see, e.g., Oakey v. U.S. Airways Pilots Disability
Plan, 723 F.3d 227 (D.C. Cir. 2013) (need to resolve a
dispute under the Railway Labor Act's procedures does not
imply lack of subject-matter jurisdiction); Emswiler v.
CSX Transportation, Inc., 691 F.3d 782 (6th Cir. 2012)
(same). None of this circuit's decisions considers the
effect of the Supreme Court's modern understanding of the
difference between "jurisdiction" and other kinds
of rules. See Fort Bend County v. Davis, No. 18-525
(U.S. June 3, 2019) (discussing the difference);
Carlson, 758 F.3d at 831 (recognizing that this
court has yet to consider how the distinction applies to the
Railway Labor Act). It is unnecessary to do so here, for
either a substantive or a jurisdictional label ends the
litigation between these parties and forecloses its
continuation in any other judicial forum.
suit against United Airlines was filed in state court and
removed to federal court on two theories: federal-question
jurisdiction under the Railway Labor Act plus removal
jurisdiction under 28 U.S.C. §1453, part of the Class
Action Fairness Act (CAFA). Judge Kendall concluded that the
subject is in the bailiwick of plaintiffs' union
(International Association of Machinists and Aerospace
Workers) and an adjustment board; this aspect of her decision
reaches the same conclusion as Judge Aspen. But Judge Kendall
added that the complaint did not present a case or
controversy, because the class asserted only a bare
procedural right. This led her to dismiss for lack of
jurisdiction. 2018 U.S. Dist. LEXIS 127959 (N.D. 111. July
class, which wants to litigate in state court, protested,
observing that if there is no federal jurisdiction then the
suit must be remanded. 28 U.S.C. §1447(c). Judge Kendall
agreed. United also complained about the initial decision.
Observing that the jurisdictional question had not been
raised or briefed by the parties, United maintained that
plaintiffs have standing because they allege (or at least
imply) that biometric data had been transmitted outside
United and may have reached inappropriate hands. Judge
Kendall refused to revisit that subject, however, and entered
an order returning the case to state court. 2019 U.S. Dist.
LEXIS 43484 (N.D. 111. Mar. 18, 2019).
remand of a suit removed under the Class Action Fairness Act
is appealable with judicial permission, 28 U.S.C.
§1453(c)(1), and United asked us to accept its appeal.
The statute makes appellate authority turn on removal under
the Class Action Fairness Act, not on whether the appeal
presents an issue about the interpretation of that statute.
This, plus the disparate outcomes of the two suits, led us to
accept the appeal even on the assumption that the only issues
concern the interaction between Illinois law and the Railway
Labor Act. ...