April 8, 2015
BLANCA RUIZ, Plaintiff--Appellant,
PATRICK R. DONAHOE, Postmaster General, United States Postal Service (Southwest Area) Agency, Defendant--Appellee
Appeal from the United States District Court for the Northern District of Texas.
For BLANCA RUIZ, Plaintiff - Appellant: Susan Lyons Kerr, Attorney, Law Office of Susan L. Kerr, Dallas, TX.
For PATRICK R. DONAHOE, Postmaster General, United States Postal Service (Southwest Area) Agency, Defendant - Appellee: Sydney Foster, Marleigh D. Dover, Assistant Director, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC; Alice Lucille Covington, Attorney, U.S. Postal Service, Office of the General Counsel, Washington, DC; Terry J. Johnson, Esq., U.S. Attorney's Office, Northern District of Texas, Dallas, TX.
Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
ON PETITION FOR REHEARING
PRISCILLA R. OWEN,
IT IS ORDERED that the petition for rehearing of Patrick R. Donahoe, Postmaster General, is DENIED.
We previously held the district court erred in dismissing the case for lack of subject-matter jurisdiction and remanded to the district court for a determination regarding Blanca Ruiz's placement in an administrative class action. In his petition for rehearing, Donahoe argues, for the first time, that the collective bargaining agreement (CBA) governing Ruiz's employment bars litigation of her claims, and thus, the court is deprived of subject-matter jurisdiction. Although Donahoe failed to present this argument prior to filing his petition for rehearing, he argues that because it is an issue of subject-matter jurisdiction, he did not waive it. We disagree.
Donahoe relies on Gilbert v. Donahoe as support for his jurisdictional argument. Gilbert, a Postal Service employee, brought claims under the Rehabilitation Act in district court. Donahoe moved the district court to dismiss for lack of subject-matter jurisdiction, arguing that the CBA
governing Gilbert's employment established the " mandatory grievance procedure [a]s the exclusive method of resolving [Gilbert's] claims," and accordingly that " Gilbert could not bring her claims in federal court."  The district court agreed and dismissed the case for lack of subject-matter jurisdiction. On appeal, this court held that Gilbert's CBA sufficiently incorporated the Rehabilitation Act and thus, " require[d] Gilbert to pursue her Rehabilitation Act claims through the specified grievance and arbitration procedures."  This court affirmed the district court's dismissal of Gilbert's Rehabilitation Act claims.
Although in Gilbert we spoke in terms of subject-matter jurisdiction, we used the term imprecisely. " Because the consequences that attach to the jurisdictional label may be so drastic," the Supreme Court has cautioned courts to use the term " jurisdictional" only when discussing subject-matter or personal jurisdiction. The Supreme Court has explained that " [s]ubject-matter jurisdiction properly comprehended . . . refers to a tribunal's 'power to hear a case,' a matter that 'can never be forfeited or waived.'"  Conversely, mandatory grievance and arbitration procedures in contracts, such as the CBA in Gilbert, are waivable and do not affect this court's subject-matter jurisdiction. If a dispute is subject to mandatory grievance and arbitration procedures, then the proper course of action is usually to stay the proceedings pending arbitration. However, a dismissal may be appropriate
" when all of the issues raised in the district court must be submitted to arbitration."  In any event, agreements to arbitrate implicate forum selection and claims-processing rules not subject matter jurisdiction.
Donahoe has waived his argument regarding the CBA's mandatory grievance and arbitration procedures by failing to raise it before the district court or this court prior to the present petition for rehearing.
For these reasons, the petition for rehearing is DENIED.