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The Railway Labor Executives' Association ("RLEA") appeals from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.), dismissing for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), its complaint under the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-164, arising from the sale of railroad track from the Staten Island Railroad Corporation ("SIRC") to the Staten Island Railway Corporation ("SIRY") under the abandonment/sale provisions of 49 U.S.C. § 10905. The district court concluded that it could not fashion a remedy for RLEA's claims without impinging upon an order of the Interstate Commerce Commission ("ICC") approving and mandating the sale. Accordingly, because the authority to enjoin or modify an ICC order rests exclusively with this and other circuit courts, 28 U.S.C. §§ 2321, 2342, the district court determined that it lacked jurisdiction over the action. We agree with the district court that dismissal of the complaint was proper but believe that this dismissal was more appropriately accomplished under Fed.R.Civ.P. 12(b)(6). We therefore modify the judgment of the district court to declare that the complaint is dismissed with prejudice under Rule 12(b)(6) and affirm the judgment as modified.


792 F.2d 7 (1986)

RAILWAY LABOR EXECUTIVES' ASSOCIATION, Plaintiff-Appellant, v. STATEN ISLAND RAILROAD CORPORATION and Staten Island Railway Corporation, Defendants-Appellees, Interstate Commerce Commission and United States of America, Intervenors-Appellees.

No. 336, Docket 85-7483. United States Court of Appeals, Second Circuit.

Argued December 9, 1985.

Decided May 22, 1986.

New York Law School location: Box #31, File #89