[DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                     JANUARY 10, 2012
                               No. 11-13739
                           Non-Argument Calendar                        JOHN LEY
                                                                         CLERK
                         ________________________

                  D.C. Docket No. 3:10-cv-01111-RBD-MCR


IRA JOHNSON,

                               lllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
                                        versus

NATIONAL RAILROAD PASSENGER
CORPORATION, AMTRAK,

                             lllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                               (January 10, 2012)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Ira Johnson appeals the dismissal with prejudice of his complaint to vacate
an arbitration award entered by the Public Law Board in favor of Johnson’s former

employer, the National Railroad Passenger Corporation (“Amtrak”). The district

court ruled that Johnson failed to plead a cognizable ground on which to vacate

the decision of the Board. We affirm.

      We review de novo the dismissal of a complaint for failure to state a claim,

accept as true the facts alleged in the complaint, and construe the facts in the favor

of the plaintiff. Bhd. of Locomotive Eng’rs v. CSX Transp., Inc., 

,

1194 (11th Cir. 2008). To avoid dismissal, the plaintiff must make “[f]actual

allegations . . . enough to raise a right to relief above the speculative level.” Bell

Atlantic Corp. v. Twombly, 

, 555, 

, 1965 (2007).

      A district court may vacate an arbitration award in three narrowly defined

circumstances, one of which is the failure of the Board “to conform, or confine

itself, to matters within the scope of [its] jurisdiction.” 45 U.S.C. § 153(q). The

Board exceeds its jurisdiction by entering an award that is irrational. Loveless v.

E. Air Lines, Inc., 

, 1276 (11th Cir. 1982). In other words, “the

reasoning [of the award must be] so palpably faulty that no judge, or group of

judges, could ever conceivably have made such a ruling.” Safeway Stores v. Am.

Bakery and Confectionery Workers Int’l Union, 

, 82 (5th Cir. 1968).

      Johnson failed to state a plausible claim that the arbitration award was

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irrational. The Board affirmed the decision of Amtrak to fire Johnson based on

testimony from Johnson’s coworkers that Johnson uttered offensive and profane

comments that were overheard by passengers and that intimidated one of his

coworkers. Johnson complained that the award was irrational because it

disregarded the progressive discipline policy adopted by Amtrak, but the

disciplinary policy provided that, “for more serious offenses, [the] progression [of

punishment] may start at” dismissal. The district court did not err when it granted

the motion of Amtrak to dismiss Johnson’s complaint.

      Johnson challenges the disposition of his complaint on two grounds, but

both arguments are frivolous. First, Johnson argues that the district court

considered exhibits to the pleadings and should have converted the motion filed by

Amtrak into a motion for summary judgment, but Johnson “agrees that the records

of the arbitration could be considered on a motion to dismiss.” See Harper v.

Lawrence Cnty., Ala., 

, 1232 (11th Cir. 2010). Second, Johnson

argues that the district court violated his right of due process by failing to acquire

the entire record, but Johnson fails to identify what documents were omitted or to

provide a substantive discussion of the issue in his brief. See Fed. R. App. P.

28(a)(9).

      We AFFIRM the dismissal of Johnson’s complaint.

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