James v. Norfolk Southern Railway Co.: Sixth Circuit Clarifies the Reach of Federal Rule of Appellate Procedure 3(c)(6) and Re-emphasises Rigorous Causation Pleading in RLA Fraud and Duty-of-Fair-Representation Claims

1. Introduction

John James, Aaron Tiffany and Christopher Kopf—long-time Norfolk Southern Railway (NSR) employees—were dismissed for alleged workplace misconduct. Their discharge was upheld by Public Law Boards (PLBs) convened under the Railway Labor Act (RLA). Alleging collusive selection of a biased arbitrator (David Ray) and retaliatory dismissal for refusing to falsify time sheets, the employees sued NSR, the national union (Brotherhood of Locomotive Engineers & Trainmen – BLET) and a subdivision of that union (the Norfolk Southern Northern Lines/CF&E General Committee of Adjustment – GCA).

The district court (N.D. Ohio) dismissed or granted judgment on all claims. On appeal, the Sixth Circuit:

Affirmed dismissal of state-law fraud and duty-of-fair-representation (DFR) counts for insufficient pleading.
Affirmed summary judgment for NSR on the Federal Railroad Safety Act (FRSA) whistle-blower claim.
Granted in part the unions’ motion to dismiss, holding the plaintiffs had expressly abandoned all claims against GCA but not against BLET.
Denied the unions’ request for appellate sanctions.

In doing so, the Court articulated two salient legal principles that will influence future litigation:

Rule 3(c)(6) Clarification: After the 2021 amendments, a notice of appeal listing specific orders does not narrow appellate jurisdiction unless the appellant expressly says so. The Sixth Circuit becomes one of the first federal appellate courts to apply the new rule and expressly reject the pre-2021 “expressio unius” trap.
Heightened Causation Pleading: Plaintiffs alleging common-law fraud or breach of the DFR in the RLA context must plausibly connect the alleged malfeasance (e.g., selection of a biased arbitrator) to the adverse employment outcome. Mere inference of bias, without facts showing the award would have been different, is inadequate.

2. Summary of the Judgment

Judge Jane Stranch, writing for a unanimous panel (Judges Gilman and Larsen concurring), held:

Appealability & Waiver: Claims against GCA were waived by plaintiffs’ explicit concessions below; claims against BLET survived jurisdictional attack because Rule 3(c)(6) removes the prior strict designation rule.
Fraud (Rule 12(b)(6)/12(c)): Plaintiffs failed to plead the proximate-cause element—there were no facts showing that using a different neutral arbitrator would have led to reinstatement or that Ray’s alleged bias caused their injuries.
Duty of Fair Representation: Likewise deficient because causation between BLET’s conduct (agreeing to Ray) and plaintiffs’ termination was not alleged; simple negligence in arbitration strategy is not actionable.
Leave to Amend: The district court did not abuse discretion in denying leave; parties “concurred” in denial and proposed amendments remained “wanting.”
FRSA Retaliation (Summary Judgment): Even assuming protected activity, plaintiffs failed to show that NSR knew of such activity or that it contributed to their discharge; NSR proved it would have terminated them regardless.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Bassett v. NCAA, 528 F.3d 426 (6th Cir. 2008) & Anderson v. Liberty Lobby, 477 U.S. 242 (1986)
Standard for motions to dismiss and summary judgment; panel recited these familiar yardsticks before turning to substance.
United States v. Russell, 26 F.4th 371 (6th Cir. 2022) & Pinney Dock, 838 F.2d 1445 (6th Cir. 1999)
Framework for waiver on appeal; used to distinguish between express abandonment (GCA) and arguable preservation (BLET).
Fed. R. App. P. 3(c)(6) (2021 amendment)
The real star precedent. The Court explains legislative history (Advisory Committee Notes) and departs from pre-2021 “expressio unius” cases that had limited notices of appeal.
Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944); Vaca v. Sipes, 386 U.S. 171 (1967)
Source of the implied duty of fair representation under the RLA.
Brown v. UAW, 689 F.2d 69 (6th Cir. 1982) & Vaughn v. ALPA, 604 F.3d 703 (2d Cir. 2010)
Causation requirement for DFR claims—plaintiffs must plausibly allege that the union’s breach caused the adverse result.
Republic Bank & Tr. v. Bear Stearns, 683 F.3d 239 (6th Cir. 2012)
Rule 9(b) “who, what, when, where, how” particulars for pleading fraud.
Consolidated Rail Corp. v. U.S. Dep’t of Labor, 567 F. App’x 334 (6th Cir. 2014)
Adopted burden-shifting framework for FRSA retaliation; applied here to grant NSR summary judgment.

3.2 Court’s Legal Reasoning

3.2.1 Jurisdiction and Notice of Appeal

BLET argued that omission of the May 18, 2021 minute order from the notice of appeal deprived the circuit of jurisdiction. The panel rejected this, invoking new Rule 3(c)(6): unless an appellant “expressly states” that the appeal is limited, listing certain orders does not forfeit review of others that merge into the final judgment. The Court underscored Advisory Committee commentary warning that earlier decisions had “inadvertently create[d] a trap for the unwary.” This is the Sixth Circuit’s first published application of Rule 3(c)(6), and therefore a significant interpretive precedent.

3.2.2 Waiver of Claims Against Union Parties

Statements in briefs, proposed amended complaints, and oral concessions amounted to an “express relinquishment” of claims against GCA. Conversely, the ambiguous record regarding BLET—and plaintiffs’ continued advocacy on appeal—defeated a waiver finding as to BLET.

3.2.3 Fraud Claim

Even under ordinary Rule 8 (let alone Rule 9(b)), the complaint was fatally short on proximate cause. Plaintiffs alleged a “secret arrangement” but never connected it to a different outcome: the PLB’s two other members upheld the discharge, and Kopf never appeared before Ray at all. Without a plausible allegation that a different neutral would have produced reinstatement, the fraud claim collapsed.

3.2.4 Duty of Fair Representation

BLET’s supposed breach—agreeing to Ray—was not enough. The Court applied Brown: a DFR claim requires plausible facts that, but for the union’s malfeasance, the plaintiff would have avoided injury. No allegation explained how Ray’s presence, rather than the underlying misconduct, caused the adverse awards. Simple negligence, tactical errors, or “poor choice” of arbitrator do not meet the “arbitrary, discriminatory, or bad-faith” threshold.

3.2.5 Denial of Leave to Amend

Although Rule 15(a) generally favours amendment, litigants must follow local procedures. Plaintiffs first embedded a request within a merits brief instead of filing a motion; when they later filed the motion, the proposed complaint still omitted GCA and remained “wanting.” Given litigants’ concurrence in denial and lack of substantive new facts, there was no abuse of discretion.

3.2.6 FRSA Retaliation

Assuming arguendo that refusing to inflate time sheets is a protected act (49 U.S.C. § 20109(a)(2),(7)), plaintiffs failed on knowledge and contribution. Text messages showed management knew of tie-up discrepancies, not of protected activity. Moreover, clear evidence (text acknowledgment of rule breach) established NSR would have terminated them anyway. Under Conrail, summary judgment was proper.

3.3 Potential Impact of the Decision

Appellate Practice: Litigants in the Sixth Circuit—and likely beyond—can rely on James for the proposition that Rule 3(c)(6) shields appellants from harsh forfeiture where they list some but not all orders. District courts should expect broader appeal scopes unless the notice expressly states otherwise.
Pleading Standards in RLA Litigation: The decision tightens the screws on causation. Future fraud or DFR complaints arising from PLB awards must allege concrete facts indicating (1) how the purported procedural defect changed the outcome and (2) the mechanism of harm. Bare inferences of bias or collusion will invite dismissal.
Union Arbitration Strategy: BLET—and other unions—can take solace that selecting an arbitrator with a prior carrier affiliation does not per se breach the DFR. Only evidence of discrimination, bad faith, or outcome-determinative misconduct will suffice.
FRSA Claims: Employees must marshal specific “knowledge” evidence linking management to the protected act. General awareness of system quirks will not satisfy the element.

4. Complex Concepts Simplified

Railway Labor Act (RLA) & Public Law Board (PLB): The RLA governs labour disputes in rail and airline industries. When a union and carrier can’t settle a grievance, they may arbitrate before a three-member PLB: one carrier representative, one union representative and a neutral jointly selected.
Duty of Fair Representation (DFR): A judicially implied doctrine requiring unions to represent all members honestly, non-arbitrarily and without discrimination. Violations occur only with egregious conduct—mere mistakes aren’t enough.
Federal Rule of Appellate Procedure 3(c)(6): Added in 2021 to prevent forfeiture traps. Listing particular orders in a notice of appeal does not, by itself, limit the issues on appeal.
FRSA Burden-Shifting: A prima facie showing (protected activity, knowledge, adverse action, contribution) shifts the burden; employer then must show by “clear and convincing” evidence it would have acted anyway.
Proximate Cause in Fraud/DFR: Plaintiffs must connect the dots—show that the misrepresentation or union misconduct proximately caused their economic injury, not merely that something untoward occurred.

5. Conclusion

James v. Norfolk Southern stands at the intersection of labour arbitration, whistle-blower protection and appellate practice. Its legacy will be twofold:

On the procedural front, it cements the 2021 overhaul of Rule 3(c) as a shield against inadvertent forfeiture, guiding both practitioners and courts in construing notices of appeal.
Substantively, it raises the bar for plaintiffs alleging fraud or DFR breaches arising from PLB proceedings—mandating fact-specific causation allegations—and clarifies what evidence is required to survive summary judgment on FRSA retaliation.

For unions, carriers and employees alike, the decision underscores that process defects must translate into demonstrable outcome prejudice to warrant judicial relief. Merely alleging a biased arbitrator or a suspicious timekeeping system will not suffice without concrete causal linkage. Future litigants would be well-advised to heed these lessons at the pleading stage to avert early dismissal.