Appeal from the United States District Court for the District of Montana Carolyn S. Ostby, Magistrate Judge, Presiding D. C. No. CV-07-00137-CSO .
The opinion of the court was delivered by: Fernandez, Circuit Judge
Argued and Submitted June 1, 2009 -- Portland, Oregon
Before: Diarmuid F. O'Scannlain, Ferdinand F. Fernandez, and Raymond C. Fisher, Circuit Judges.
Concurrence by Judge Fisher
BNSF Railway Company appeals the district court's dismissal of its action against Matt O'Dea. The district court held that it did not have jurisdiction because the action, in effect, sought appellate review of a decision of the Montana Human Rights Commission. We determine that the district court did have jurisdiction; we reverse and remand.
BNSF is a Delaware corporation, and has its principal place of business in Texas. O'Dea is a citizen of Montana.
O'Dea applied to and was extended a conditional offer of employment by BNSF for the position of Conductor Trainee. Based upon an individualized medical assessment, however, BNSF disqualified O'Dea from further consideration for the position. O'Dea then filed a complaint for discrimination with the Montana Department of Labor and Industry, Employment Relations Division, alleging that BNSF had discriminated against him because of the perceived disability of obesity in violation of the Montana Human Rights Act, the Americans with Disabilities Act of 1990, and Title VII of the Civil Rights Act of 1964. A hearing examiner granted O'Dea's motion for a summary ruling on liability and issued a final decision awarding him damages and other relief. The Montana Human Rights Commission affirmed that decision.
The Montana Administrative Procedure Act*fn1 provides for judicial review of agency decisions, and BNSF sought review by filing this action based upon diversity jurisdiction. See 28 U.S.C. § 1332. O'Dea filed a motion to dismiss the action and argued that the federal courts lack subject matter jurisdiction because federal courts do not have diversity jurisdiction over appeals from state agencies, and that is what this action amounts to.*fn2 The district court agreed, and dismissed the action. This appeal followed.
We review the district court's dismissal of this case for lack of subject matter jurisdiction de novo. See Nuclear Info. & Res. Serv. v. U.S. Dep't of Transp. Research & Special ...