Opposition Brief — American Federation of Government Employees v. Martinez

No. 92-1640

In The ‘Bacall

Supreme Court of the United States

October Term, 1992

+

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, JOHN STURDIVANT, GLEN

PETERSON, HARRY DAWSON, JERRY BLACK,

ALEJANDRO GONZALES,

Petitioners,

RAMIRO MARTINEZ,

Respondent.

«

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

e

BRIEF IN OPPOSITION TO PETITIONERS’

PETITION FOR A WRIT OF CERTIORARI

¢

Oscar C. GONZALEZ

Law Offices OF Oscar C.

GONZALEZ

2200 Tower Lire BLDc.

SAN ANTONIO, TX 78204

(210) 223-2641

Or CouNSEL:

MANUEL G. Escosar, JR.

First National Bank Building

750 E. Mulberry, Suite 200

San Antonio, Texas 78212

Phone No. (210) 737-8000

May 28, 1993

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-283]

QUESTIONS PRESENTED

Whether the Court should deny Petitioners’ Petition

for Writ of Certiorari because the decision at bar

involves a judgment remanding a case which does

not bring into consideration important questions of

law that are fundamental to the further conduct of

the case or would otherwise qualify as a basis for

Certiorari.

Whether the Court below properly found that the

Labor-Management Reporting and Disclosure Act

grants subject matter jurisdiction over Respondent’s

claims?

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Page(s)

Cases

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-393,

ee od nn . 10

Karahalios v. National Federation of Federal

Employees, 489 U.S. 527, 109 S.Ct. 1282, 103

ee 10

Tatum v. Regents of University of Nebraska, 460 U.S.

1048, 103 S.Ct. 1450, 75 L.Ed.2d 804 (1983)........ y

STATUTES

Civil Service Reform Act of 1978, Pub. L. 95-454,

92 Stat. 1111 (1978)............. Ie Fe Ore passim

Labor-Management Reporting and Disclosure Act

of 1959, 29 U.S.C. section 401 et seq., as

EE re . passim

Ee |S) 2, 6, 7

29 U.S.C. section 401 ef seq.................. .. passim

me ase, Secevom G02) ...........,... arte ea) ee

Ee E eeone Oe

29 U.S.C. section 411(a)(5) .............. ere ee

EE ee eb

RULES

Rules of the Supreme Court of the United States,

I 7

Rules of the Supreme Court of the United States,

Na cs cec dvs se sens ivoese sees 9, 14

No. 92-1640

¢

In The

Supreme Court of the United States

October Term, 1992

4

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, JOHN STURDIVANT, GLEN

PETERSON, HARRY DAWSON, JERRY BLACK,

ALEJANDRO GONZALES,

Petitioners,

RAMIRO MARTINEZ,

Respondent.

4

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

= 4

BRIEF IN OPPOSITION TO PETITIONERS’

PETITION FOR A WRIT OF CERTIORARI

Respondent, Ramiro Martinez, requests that the

Court deny the Petitioners’ Petition for Writ of Certiorari,

and remand the case to Federal District Court to enforce

the Fifth Circuit Court of Appeals’ decision remanding

the case for further proceedings.

S

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-8a) is reported at 980 F.2d 2039. The opinion of the

district court is set forth at App., infra, 9a-13a.

4

JURISDICTION

The judgment of the court of appeals was entered on

January 12, 1993. A petition for a writ of certiorari was

filed on April 12, 1993, within 90 days of the date of the

entry of judgment below. The jurisdiction of this court

was invoked by the Petitioners pursuant to 28 U.S.C.

Section 1254(1).

STATUTES INVOLVED

1. 28 U.S.C. Section 1254(1). Courts of appeals; cer-

tiorari; certified questions

Cases in the courts of appeal may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the peti-

tion of any party to any civil or criminal case,

before or after rendition of judgment or decree.

2. Rule 10 of the RULES OF THE SUPREME COURT OF

THE UNITED STATES.

3. The Labor-Management Reporting and Disclosure

Act, 29 U.S.C. Section 401, et seg. (the “LMRDA”)

provides in relevant part:

(i) “Labor organization” means a labor organi-

zation engaged in an industry affecting com-

merce and includes any organization of any

kind, any agency, or employee representation

committee, group, association, or plan so

engaged in which employees participate and

which exists for the purpose, in whole or in

part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay,

hours, or other terms or conditions of employ-

ment, and any conference, general committee,

joint or system board, or joint council so

engaged which is subordinate to a national or

international labor organization, other than a

State or local central body.

29 U.S.C. Section 402(i).

No member of any labor organization may be

fined, suspended, expelled, or otherwise disci-

plines . . . unless such member has been (A)

served with written specific charges; (B) given a

reasonable time to prepare his defense; (C)

afforded a full and fair hearing.

29 U.S.C. Section 411(a)(5). 29 U.S.C. Section 412 states

that

[aJny person whose rights secured by the provi-

sions of this subchapter have been infringed by

any violation of this subchapter may bring a

civil action in a district court of the United

States. .

STATEMENT OF THE CASE

Respondent agrees with the statement of the case as

set out in Sections | and II of the opinion of the Court of

Appeals for the Fifth Circuit at 980 F.2d 2039 and attached

as Appendix A, infra, 2a-5a.

Respondent adds only the following. On appeal the

Fifth Circuit considered whether the Civil Service Reform

Act of 1978’s (the “CSRA”) comprehensive remedial

scheme applied to Respondent’s cause of action. App.,

infra, 4a, fn.1. The Court found that “[t]he instant case

deals with a situation where the two statutes, [the

LMRDA and the CSRA], overlap because the American

Federation of Government Employees (the “AFGE”)

admits members who are employed in both the public

and the private sector”. Id. The Court further found that

the question before it was “whether the LMRDA provides

[a remedy], [and] not whether the CSRA provides

[Respondent] a remedy”. App., infra, 5a, fn.2. Respon-

dent’s “membership in Local 1617, a purely private

union, does not affect his rights under the LMRDA as a

member of the AFGE”. App, infra, 6a, fn.3. The issue is

whether AFGE’s status, and not Local 1617's status, as a

“mixed union” permits the Respondent to maintain his

actions in federal district court under the LMRDA. App.,

infr2, 7a-8a. The Court remanded the case for further

proceeding to determine AFGE’s status. Id.

¢

REASONS FOR DENYING THE PETITION

Summary of Arguments

Petitioners’ Petition for a Writ of Certiorari should be

denied for the following reasons:

1. This Court’s jurisdiction should not be invoked

because the Court of Appeals for the Fifth Circuit has not

rendered a decision in conflict with the decision of

another United States Court of Appeals on the same

issue, nor has it decided a federal question in a way that

conflicts with applicable decisions of this Court. The

Court of Appeals for the Fifth Circuit simply analyzed

the facts and the arguments, and came to the conclusion

that an individual, under the appropriate circumstances,

could assert a cause of action under the LMRDA. With

respect to the case at bar, the court determined that more

factual findings were needed in order to determine

whether the plaintiff in the case at bar could assert a

cause of action under the LMRDA.

2. The jurisdiction of this Court, if any, should be

denied until proper findings of fact, which were ordered

by the court below in its decision to remand the case, are

ultimately determined. The decision of the Court of

Appeals for the Fifth Circuit does not bring into consider-

ation important questions of law that are fundamental to

the further conduct of the case.

3. The court below was correct when it properly

posited the issue as being - “[W]hether the LMRDA

grants subject matter jurisdiction over Ramiro M. Mar-

tinez’s claims”. App., infra, 5a. The Court of Appeals for

the Fifth Circuit was correct in recognizing that the

LMRDA does not preempt the CSRA. Under the proper

facts and pleadings, such as the ones existing in the case

at bar, a plaintiff may assert a legally cognizable cause of

action under the LMRDA.

4. The stipulation made by the Petitioners that the

AFGE represents non-governmental employees is suffi-

cient to categorize it as a “labor organization” as the

LMRDA defines the term. This stipulation subjects the

Petitioners to the LMRDA, and thereby federal district

court jurisdiction.

The LMRDA defines a “labor organization” as:

“[any organization] in which employees

participate and which exists for the purpose, in

whole or in part, of dealing with employers

. .. ". (Emphasis added.) 29 U.S.C. Section

402(i).

The key language under the rules of grammar and

statutory construction are the words “which exists for the

purpose”, and not the words “dealing with employers”.

Actual representational actions are not needed to classify

an organization as a “labor organization”. Mere existence

for the purpose of dealing with employers suffices.

Due to the aforementioned reasons the court should

deny Petitioners’ Petition for Writ for Certiorari.

Arguments

Petitioners attempted to invoke “[t]he jurisdiction of

this court . . . under 28 U.S.C. section 1254(1)”, (Petition

For a Writ of Certiorari, p.2), however the case at bar does

not involve a significant constitutional question or an

issue of substantial public interest.

28 U.S.C. Section 1254(1) is the general jurisdictional

statute for appeals to the United States Supreme Court by

Writ of Certiorari. This statute must be read in conjunc-

tion with Rule 10 of the Rules of The Supreme Court of

the United States. Rule 10 delineates some key factors

which must be at issue before the Supreme Court will

grant a petitioner’s petition for writ of certiorari.

Rule 10 of the Rules of the Supreme Court of the

United States states:

Considerations Governing Review on Writ of

Certiorari

1. A review on writ of certiorari is not a mat-

ter of right, but a judicial discretion. A petition

for a writ of certiorari will be granted only when

there are special and important reasons therefor.

The following, while neither controlling nor

fully measuring the Court’s discretion, indicate

the character of reasons that will be considered:

(a) When a United States court of appeals

has rendered a decision in conflict with the -

decision of another United States court of

appeals on the same matter; or has decided

a federal question in a way in conflict with a

state court of last resort; or has so far

departed from the accepted and usual

course of judicial proceedings, or sanc-

tioned such a departure by a lower court, as

to call for an exercise of this Court’s power

of supervision.

(b) When a state court of last resort has

decided a federal question in a way that

conflicts with the decision of another state

court of last resort or of a United States

court of appeals.

(c) When a state court or a United States

court of appeals has decided an important

question of federal law which has not been,

but should be, settled by this Court, or has

decided a federal question in a way that

conflicts with applicable decisions of this

Court.

The case at bar does not involve any key factors

which would call for this Court’s grant of jurisdiction

pursuant to a writ of certiorari. See, opinion of the Court

of Appeals for the Fifth Circuit at App., infra, la-8a.

There are no conflicting opinions between the circuits

or between the Fifth Circuit and this Court. No other

court of appeals has considered the issue addressed by

the Court Appeals for the Fifth Circuit, i.e. whether a

plaintiff may choose to plead and pursue a cause of

action under the LMRDA or the CSRA when the statutes

overlap. Since this issue has not been addressed by any

other court, Respondent believes it is incorrect for Peti-

tioners to state that the Fifth Circuit’s opinion is in con-

flict with other courts. The opinion of the Fifth Circuit

does not directly address the issue raised by Petitioners.

There is presently no important question of federal law

which should be settled by this Court.

The Court of Appeals for the Fifth Circuit has

remanded the case for further factual findings, it has not

disposed of the case in any manner. The issue presently

advanced by the Petitioners is not ripe for consideration

by this Court. Petitioners’ Petition for Writ of Certiorari is

thus frivolous and should be denied, and damages

should be assessed against Petitioners pursuant to Rule

42.2, Rules of the Supreme Court, and current case law.

Tatum v. Regents of University of Nebraska, 460 U.S. 1048,

103 S.Ct. 1450, 75 L.Ed.2d 804 (1983).

Petitioners’ Petition for a Writ of Certiorari misstates

the issue at hand. Petitioners focus the Court’s attention

on collateral issues which the Court of Appeals for the

Fifth Circuit properly did not address.

Petitioners state, in their “Question Presented”, that

“the court below improperly departed from the rule

established by this Court, and adopted by the over-

whelming majority of circuit and state courts, that the

Civil Service Reform Act provides the exclusive remedial

scheme for federal employee claims arising under the

Act”. Petitioners contend that a writ of certiorari by this

Court is mandated in order to clarify any inconsistencies

among the courts. Petitioners’ statement is incorrect for

the court below never ruled that the CSRA did not pro-

vide the exclusive remedial scheme for federal employee

claims arising under the Act. App., infra, 1a-8a.

The court below observed that this “case deals with a

situation where the two statutes [the LMRDA and CSRA,]

overlap and that the facts and plaintiff’s pleading may

assert a cause of action under the LMRDA depending on

other factors.” App., infra, 4a, fn.1.

The question presented by Petitioners fails to prop-

erly focus on the true issue presented in the case at bar.

As the Court of Appeals for the Fifth Circuit correctly

pointed out, “[t]he only question before us is whether the

LMRDA grants subject matter jurisdiction over [Respon-

dent] Ramiro M. Martinez’s claim”. App., infra, 5a. In

other words, the court is asking: Do the facts and Respon-

dent’s pleadings allege a cause of action under the

10

LMRDA? Whether a cause of action would also lie pur-

suant to the CSRA is irrelevant. Respondent did not plead

such a cause. The Plaintiff is the master of his claim.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-393, __ S.Ct.

__, __ L.Ed.2d __ (1987).

Two statutes addressing labor relations have been

adopted by Congress. The Department of Labor has and

continues to promulgate regulations pursuant to each stat-

ute. No statute nor judicial decision has ever, explicitly or

implicitly, totally preempted the LMRDA or the pertinent

provisions currently under consideration. The Department of

Labor’s promulgation of regulations pursuant to the

LMRDA lead to the unmistakable conclusion that neither

Congress or the Department of Labor believe nor intended

for the LMRDA to be preempted by the CSRA. Although the

district court relied on Karahalios v. National Federation of

Federal Employees, 489 U.S. 527, 109 S.Ct. 1282, 103 L.Ed.2d

539 (1989) to dismiss Respondent’s claim, the Court of

Appeals for the Fifth Circuit correctly pointed out that

Karahalios is distinguishable from the present case, and there-

fore reversed the decision of the district court. App., infra, 5a,

fn.2. Karahalios stands for the proposition that courts should

be reluctant to provide additional remedies where a statute

expressly provides one. Id. As the Court of Appeals for the

Fifth Circuit correctly pointed out, the issue in the case at bar

is not whether CSRA provides a remedy or whether judicial

incursion into the CSRA’s remedial scheme is contemplated.

Rather, the issue is whether the LMRDA provides a cause of

action and a remedy for Respondent. Id.

The preemption argument raised by the Petitioners is

groundless.

1]

The question which the Court of Appeals for the Fifth

Circuit was unable to resolve with the existing facts of the

case is whether the Respondent may actually raise a claim

pursuant to the LMRDA.

The Court of Appeals for the Fifth Circuit reviewed

29 U.S.C. Sections 412 and 411 respectively. It found that

Respondent is a “person”, and that he had rights secured

by the LMRDA which he contended had been violated.

App., infra, 5a-6a. The court below found that Respon-

dent was a member of a union, the AFGE. It found that

his LMRDA rights vis-a-vis the parent AFGE union, and

not Local 1617, were the correct focus when deciding

whether LMRDA causes of action could be invoked.

The question presented, i.e. whether the Respondent

could state a cause of action under the LMRDA, turns on

whether Respondent is a member of a “labor organiza-

tion” as that term is defined under 29 U.S.C. Section

402(i). Id. In other words, “whether the AFGE or any of

its locals” meet the definition of a “labor organization”.

App., infra, 6a-7a.

The court below determined that under the present

facts of the case it was unable to find whether or not

Petitioner AFGE was a “labor organization”. Therefore,

the court remanded the case for further factual findings.

App., infra, 7a-8a. Specifically, the Court of Appeals for

the Fifth Circuit would like the district court to determine

whether “the AFGE, through any of its locals, deals with

any private sector employers on behalf of its members

concerning the terms and conditions of employment”.

App., infra, 7a. If it does, the AFGE is representing non-

12

governmental employees and is a “labor organization” as

defined by the LMRDA. Id.

Respondent believes that the course of the proceed-

ings ordered by the court below is appropriate, and that

the evidence will show that the AFGE and/or its locals

do represent non-governmental employees. The AFGE

qualifies as a “labor organization”. Respondent believes

that this finding may currently be made due to the fol-

lowing reasons.

The LMRDA defines a “labor organization” as:

[any organization] in which employees partici-

pate and which exists for the purpose, in whole

or in part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay,

hours, or other terms and conditions of employ-

ment. (Emphasis added.) 29 U.S.C. Section

402(i).

The court below focused on the phrase “dealing with

employers” as determinative of whether or not an organi-

zation which “represents” employees can be defined as a

“labor organization”. The court below ruled that for a

union to be defined as a “labor organization” within the

definition of the LMRDA it must “represent” non-govern-

mental employees. App., infra, 6a-8a. This term is in turn

defined by the actions of an organization in actually

dealing with private sector emplofers on behalf of its

members concerning the terms and conditions of their

employment. App., infra, 6a-7a.

Respondent believes that the proper focus should be

the phrase “which exists for the purpose”.

13

Rules of grammar, the plain meaning rule, and rules

of statutory construction lead to the logical conclusion

that the phrase “which exists for the purpose” is the

controlling clause. No actual representational actions are

needed to classify an organization as a labor organiza-

tion. Mere existence for the purpose of representation

should suffice.

Alternatively, if the Court determines that the phrase

“dealing with employers” is the key term, Respondent

believes that the act of holding oneself out as a represen-

tative for another, such as the AFGE stipulation that it

represents non-governmental employees, is a sufficient

representational act, and thus brings AFGE within the

definition of a “labor organization”. The act of holding

oneself out as a representative of another may deter

others from entering into negotiations with the repre-

sented individual(s), and thus prevent others from actu-

ally entering into collective bargaining agreements.

Respondent therefore believes that the actions of the

Petitioners bring the AFGE within the definition of a

“labor organization”. Respondent may assert a cause of

action against Petitioners under the LMRDA.

CONCLUSION

For the foregoing reasons Respondent respectfully

requests that the Court deny Petitioners’ Petition for Writ

of Certiorari. Respondent also requests that the Court

award him just damages against the Petitioners

14

pursuant to Rule 42.2 and current case law due to Peti-

tioners’ improper and frivolous Petition For A Writ Of

Certiorari.

May 28, 1993

Respectfully submitted,

Oscar C. GONZALEZ

Law OFFICES OF

Oscar C. GONZALEZ, INC.

2200 Tower Life Bldg.

San Antonio, TX 78204

(210) 223-2641

Of counsel:

MaANugEL G. Escosar, Jr.

750 E. Mulberry Avenue, Suite 200

San Antonio, Texas 78212-3159

(210) 737-8000

Counsel for Respondent

RESPONDENT'S

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 91-5615

Ramiro M. Martinez, Individually and as

President of American Federation of Government

Employees, Local 1617,

Plaintiff-Appellant,

V.

THE AMERICAN FEDERATION OF

GOVERNMENT Emp tovyees, et al.,

Defendants-Appellees,

and

RosBert GuTTMAN, U.S. Dept. of Labor, Etc.,

Intervenor-Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

Jan. 12, 1993

Before BRIGHT,* JOLLY, and BARKSDALE, Circuit

Judges.

* Senior Circuit Judge of the Eighth Circuit, sitting by desig-

nation.

2a

E. GRADY JOLLY, Circuit Judge:

The sole question with which we are presented is

whether the federal courts have subject matter jurisdic-

tion over this dispute. Ramiro M. Martinez, a federal

employee, and a member of the American Federation of

Government Employees (“AFGE”), sued it under the

Labor-Management Reporting and Disclosure Act

(“LMRDA”) because it had removed him from office in

his local union. The LMRDA grants federal courts juris-

diction over disputes between a union and its members if

the union is a “labor organization” as the LMRDA defines

the term. Unions that bargain solely with the government

are not “labor organizations” subject to the LMRDA,; all

others are. The AFGE has stipulated that it “represents”

private sector employees as well as government

employees. This limited stipulation, however, does not

make clear whether the AFGE deals with private sector

employers concerning grievances, labor disputes, wages,

rates of pay, hours, or other terms and conditions of

employment. Thus, because we are uncertain whether

jurisdiction over this dispute lies in the federal courts, we

remand for further proceedings not inconsistent with this

opinion.

I

Ramiro M. Martinez is a federal employee who works

at the Kelly Air Force Base in San Antonio. The American

Federation of Government Employees, Local 1617 (“Local

1617”), is the exclusive bargaining representative for the

civilian employees working at the Kelly A’r Force Base.

Martinez is a member of the AFGE and Local 1617. All of

3a

Local 1617’s members are federal employees. Local 1617

is chartered by its parent, the American Federation of

Government Employees (“AFGE”). The AFGE is com-

prised of over a thousand local labor unions and repre-

sents almost 700,000 government employees. The parties

stipulated that some of the AFGE’s local unions “repre-

sent” both private and public sector employees.

In July of 1986 and again in February of 1989, the

members of Local 1617 elected Martinez president. On

January 3, 1989, AFGE National Vice President Glen J.

Peterson ordered an investigation of Martinez to deter-

mine whether he had violated the AFGE’s national consti-

tution by selling a list of Local 1617’s members’ names

and addresses to an insurance company. On March 28,

John Sturdivant, AFGE’s national president, found there

was probable cause to believe that Martinez had sold the

membership list. Believing that Local 1617 could not con-

duct a fair and impartial trial on the charges, Sturdivant

appointed a trial committee composed of the presidents

of three other AFGE locals. The trial committee, which

Martinez contends was biased against him, concluded

that Martinez had violated the union constitution and

recommended that Sturdivant remove him from his office

as president and bar him from holding any union office

for three years. On August 24, Sturdivant accepted the

trial committee’s findings and recommendations and

immediately removed Martinez from office.

In February, approximately the same time the AFGE

was investigating Martinez, Local 1617 held its regularly

scheduled election and Martinez was re-elected. Several

unsuccessful candidates challenged the election, alleging

that the union gave incumbents greater access to Local

4a

1617’s newspaper. After Local 1617's election committee

dismissed the protests, two candidates filed appeals to

National Vice President Peterson, who ordered an investi-

gation of the election. Finding that incumbent union offi-

cers used union funds to enhance their campaigns,

Peterson ordered a new election. Martinez appealed the

decision to Sturdivant.

When Sturdivant denied his appeal, Martinez and the

other Local 1617 officers filed a complaint with the

Department of Labor, challenging the decision to over-

turn the February election. They alleged that the decision

violated the right of Local 1617’s membership to elect

their officers. They further alleged that the decision was

arbitrary, capricious, and politically motivated. After con-

ducting its own investigation, the Department of Labor

dismissed the complaint.

I]

Martinez then brought this action On September 7,

1989, in the United States District Court, Western District

of Texas, at San Antonio. Martinez sued under the provi-

sions of the Labor-Management Reporting and Disclosure

Act (“LMRDA”), 29 U.S.C. § 401, et seq. The conypiaint

mamed the AFGE, some of its national officers, and some

officers of other AFGE local unions as defendants. He

alleged that the AFGE and its officers violated his rights

under the LMRDA by removing him from office, by bar-

ring him from office for three years, and by invalidating

the February union election in which he had been re-

elected president.

5a

On October 3, the AFGE and its officers filed a

motion to dismiss or in the alternative for summary judg-

ment. They argued that the court lacked subject matter

jurisdiction because Martinez’s claims were subject to the

exclusive remedial scheme provided by Title VII of the

Civil Service Reform Act (“CSRA”) of 1978. 5 U.S.C.

§ 7101, et seq.! The Acting Assistant Secretary of Labor for

Labor-Management standards, who administers section

7120 of Title VII of the CSRA, intervened as a defendant.

The Assistant Secretary then filed his own motion to

dismiss for lack of subject matter jurisdiction.

The district court held that the CSRA applies to the

plaintiff’s claims. Concluding that the CSRA’s compre-

hensive statutory scheme precludes judicial review of

Martinez’s claim under the LMRDA, the district court

granted the motions to dismiss.? Martinez appeals.

1 Both the CSRA and the LMRDA grant certain similar

rights to union members. The CSRA, however, applies only to

federal employees who are union members. Unlike the LMRDA,

the CSRA does not grant union members the right to sue their

unions in federal court. Instead, federal employees who are

union members must bring their grievances against their union

before the Assistant Secretary of the Department of Labor. The

instant case deals with a situation where the two statues overlap

because the AFGE admits members who are employed in both

the public and the private sector.

2 In reaching its decision, the district court relied on

Karahalios v. National Federation of Federal Employees, 489 U.S.

527, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989). In Karahalios, the

Court held that the CSRA does not create a private cause of

action for federal employees to sue their unions. The Court

reminded us that we should be reluctant to provide additional

remedies where a statute expressly provides one. Id. at 533, 109

S.Ct. at 1286-87. Karahalios, however, does not govern the instant

6a

II]

The only question before us is whether the LMRDA

grants subject matter jurisdiction over Ramiro M. Mar-

tinez’s claims. If it does, then the district court erred in

dismissing the complaint. This question is purely legal

and, thus, we review the district court’s conclusions de

novo. United States v. Harrison, 918 F.2d 469, 473 (5th

Cir.1990).

We thus turn to the LMRDA and examine whether

Martinez’s claim finds a jurisdictional home. Section 412

of the LMRDA provides that:

[aJny person whose rights are secured by the

provision of this subchapter have been infringed

by any violation of the subchapter may bring a

civil action in a district court of the United

States for such relief (including injunctions) as

may be appropriate.

29 U.S.C. § 412. Thus, Martinez as a “person,” can bring

an action against his union under section 412 if he has

rights secured by the LMRDA that have been violated.

The LMRDA grants certain rights “to every member of a

labor organization.” 29 U.S.C. § 411. It is undisputed that,

in substance, Martinez asserts rights protected under the

LMRDA. Those rights include the right to vote and other-

wise to participate in union affairs. Martinez contends

that the AFGE violated these protected rights when it

wrongly denied him the right to participate in his union,

case. Here, the question is not whether the CSRA provides a

remedy, but whether the LMRDA provides one.

7a

including the right to hold office. Thus, the only remain-

ing question as to whether Martinez has stated a claim

under the LMRDA that would give us subject matter

jurisdiction, is whether he is a member of a “labor organi-

zation.” This inquiry is determinative of jurisdiction here

because the rights that Martinez asserts belong only to

“every member of a labor organization.” 29 U.S.C. § 411.

The LMRDA defines a “labor organization” as:

[any organization] in which employees partici-

pate and which exists for the purpose, in whole

or in part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay,

hours, or other terms and conditions of employ-

ment. (Emphasis added.)

29 U.S.C. § 402(i). Thus, the question is whether the

AFGE meets this definition: does it deal with employers

concerning the terms and conditions of employment?

“Employer” is defined under the LMRDA as any

employer except “the United States or any corporation

wholly owned by the government of the United States or

any state or political subdivision thereof.” 29 U.S.C.

§ 402(e). We, therefore, ask whether the AFGE or any of

its locals deal with “any employer except the government

— federal, state or local?” If it does, federal courts have

jurisdiction over Martinez’s claims against the AFGE; if

3 Despite the AFGE’s arguments to the contrary, Martinez’s

membership in Local 1617, a purely federal union, does not

affect his rights under the LMRDA as a member of the AFGE.

The national AFGE and its national officers are the defendants

in the instant suit, and it is their actions that are the subject of

the suit. If Martinez’s local union and its officers were the

defendants, we would have an entirely different case.

8a

the only employer that the AFGE and its locals deal with

is the government, we must affirm the dismissal of the

complaint because the AFGE would not be a “labor orga-

nization” under the LMRDA.

On the record before us, the answer to this question

is unclear. The AFGE has stipulated that it represents

non-governmental employees. At the same time, the

AFGE argues that it has no contracts with private

employers and that no private employers recognize the

AFGE as the exclusive bargaining agent of its employees.

In short, the AFGE contends it is not a labor organization

because, although it admits into membership some per-

sons who work in the private sector, it does not deal with

their private employers. Unfortunately, except for the

somewhat ambiguous stipulation, the record is bare on

the essential question of jurisdiction. This court has a

duty to determine whether it has jurisdiction over any

case before it. Morales v. Pan American Life Ins. Co., 914

F.2d 83, &5 (5th Cir.1990). We, therefore, must remand for

further factual findings in order to determine whether we

have jurisdiction. If the district court finds that the AFGE,

through any of its locals, deals with any private sector

employers on behalf of its members concerning the terms

and conditions of employment, then the district court has

jurisdiction and Martinez must have an opportunity to

litigate his claims in federal court. Otherwise, the-district

court must dismiss the proceeding.

* See Berardi v. Swanson Memorial Lodge No. 48, 920 F.2d 198

(3d Cir.1990). Here, a government employee sued his union. The

union admitted some honorary members, but it was unclear

whether the union dealt with their employers. The court

9a

Before concluding, we pause to note the limited

nature of our decision. A federal employee can only bring

suit in federal court under the LMRDA when his dispute

is with his union and happens to deal with private

employers concerning the terms and conditions of

employment. This decision today merely ensures that all

members of the same national union have the same rights

vis-a-vis their national union.

IV

For all of the reasons above, we REVERSE the judg-

ment of the district court and REMAND for further pro-

ceedings not inconsistent with this opinion.

REVERSED and REMANDED.

remanded for further factual findings. See also Hester v. Intern.

Union of Operating Engineers, 818 F.2d 1537 (11th Cir.1987).

10a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Case No. SA 89 CA 1225

Ramiro M. MartINEz,

Plaintiff,

v.

AMERICAN FEDERATION OF GOVERNMENT Emp oyees, ef al.,

Defendants.

(Filed Mar. 29, 1991]

ORDER

The question before the Court is whether the Court

has subject matter jurisdiction over Plaintiff's Complaint.

Because the Court concludes that the Civil Service

Reform Act establishes the exclusive statutory remedy for

Plaintiff’s claims, this Court lacks subject matter jurisdic-

tion over Plaintiff's Complaint. Accordingly, the Plain-

tiff’s Complaint is DISMISSED.

A. BACKGROUND

On January 3, 1989, Mr. Glen Peterson, National Vice

President of the American Federation of Government

Employees (AFGE) District 10, requested an investigation

lla

of the charge that Plaintiff, who was then President of

Local 1617,! sold a list of members’ names and addresses

to the Benefit Trust Life Insurance Company for $500.00.

On June 22, 1989, a hearing was held on this charge. On

July 10, 1989, the trial committee concluded that Plaintiff

was compensated by the insurance company and that

Plaintiff did not act in a responsible manner. On August

24, 1989, based upon those findings, John Sturdivant,

National President of AFGE, removed Plaintiff from

office and barred him from holding office for three years.

In the interim, on February 8, 1989, Local 1617 held

an election of officers and Plaintiff won re-election as

President of Local 1617. Thereafter, other candidates for

office protested the 1989 elections, alleging that certain

candidates had access to the Local’s newpaper, while

other candidates were denied that opportunity. The

National Vice President reversed the election and ordered

a new election. On June 27, 1989, Plaintiff appealed this

decision to the National President. The National Presi-

dent denied the appeal on the ground that the Local’s

newspaper had been used to promote the candidacy of

certain officers.

On August 25, 1989, Plaintiff filed a complaint with

the Department of Labor, alleging that Title IV of the

Labor-Management Reporting and Disclosure Act of 1959

(LMRDA), 29 U.S.C. § 401, et seg. had been violated.

Plaintiff asserted that the National Vice President’s order

that a remedial election be conducted was politically

' AFGE Local 1617 represents federal employees at Kelly

Air Force Base in San Antonio, Texas.

12a

motivated. The Director of the Office of Elections, Trust-

eeship and International Union Audits (Director) within

the Office of the Assistant Secretary, caused an investiga-

tion of the complaint to be conducted.

The Director’s investigation established that the

National Vice President’s decision was consistent with

the intent of the LMRDA. On November; 27, 1989, the

Director dismissed the complaint. On December 6, 1989,

Plaintiff appealed the dismissal to the Assistant Secretary

for Labor-Management Standards. On April 24, 1990, the

Assistant Secretary affirmed the dismissal and upheld the

AFGE’s decision to overturn election.

In September 1989, Plaintiff filed this lawsuit, chal-

lenging his removal and suspension from office and the

conduct of the remedial election. Plaintiff invoked the

LMRDA as the mechanism for remedying the alleged

violations. Defendants asserted that Plaintiff’s reliance on

the LMRDA was misplaced and asserted that the CSRA is

the exclusive authority for resolving the dispute. Defen-

dant-Intervenor also asserted that the CSRA governs this

matter.

B. THE CSRA APPLIES TO PLAINTIFF’S CLAIMS

Plaintiff’s dispute arises from his removal as Presi-

dent of Local 1617 and the remedial election of Local 1617

officers.

Title VII of the Federal Labor-Management Relations

Statute is the controlling authority for resolving issues

involving labor relations in the public sector. Karahalios v.

National Federation of Federal Employees, Local 1263,

13a

__._:;U.S. __, 109 S. Ct. 1282, 1285 (1989). The statute

establishes that

[i]t is the purpose of this chapter to prescribe

certain rights and obligations of the employees

of the Federal Government and to establish pro-

cedures which are designed to meet the special

requirements and needs of the Government. The

provisions of this chapter should be interpreted

in a manner consistent with the requirement of

an effective and efficient Government.

5 U.S.C. § 7101(b). Thus, the Court must ascertain

whether Plaintiff is an employee of the Federal Govern-

ment and whether his claim involves rights and obliga-

tions covered by the statute.

The statute defines “employee” as an “individual

employed in an agency.” 5 U.S.C. § 7103(a)(2)(A). The

term “agency” includes an “executive agency.” 5 U.S.C.

§ 7103(a)(3). The term “executive agency” incorporates

the Department of Defense. 5 U.S.C. § 101. Plaintiff has

been employed by the Department of the Air Force at

Kelly Air Force Base in San Antonio, Texas since 1954. As

an “individual employed in an agency,” Plaintiff is an

“employee” of the Federal Government. 5 U.S.C.

§ 7103(a)(2).

The next issue is whether Plaintiff's Complaint

involves rights and obligations covered by the statute.

Plaintiff alleges impropriety in his removal and suspen-

sion from office and the AFGE’s handling of the protests

lodged against his re-election as president. The relevant

statutory provision mandates that “an agency shall only

accord recognition to a labor organization that is free

from corrupt influences and influences opposed to basic

14a

democratic principles.” 5 U.S.C. § 7120(a). Such a labor

organization must be

subject to governing requirements adopted by

the organization or by a national or interna-

tional labor organization or federation of labor

organizations with which it is affiliated, or in

which it participates, containing explicit and

detailed provisions to which it subscribes call-

ing for -

(1) the maintenance of democratic procedures

and practices including provisions for periodic

elections to be conducted subject to recognized

safeguards and provisions defining and secur-

ing the right of individual members to partici-

pate in the affairs of the organization, to receive

fair and equal treatment under the governing

rules of the organization, and to receive fair

process in disciplinary proceedings. .. .

5 U.S.C. § 7120(a).

Under the CSRA, ”“ ‘labor organization’ means an

organization composed in whole or in part of employees,

in which employees participate and pay dues, and which

has as a purpose the dealing with an agency concerning

grievances and conditions of employment,....” 5 U.S.C.

§ 7103(a)(4). Both the AFGE and Local 1617 are composed

in whole or in part of federal employees and have as a

purpose the dealing with federal agencies concerning

grievances and conditions of employment. Therefore,

because both the AFGE and Local 1617 are labor organi-

zations, they are subject to the statute.

The next issue is whether Plaintiff's allegations state

a claim under the statute. In his Complaint, Plaintiff

o

15a

complains of unfairness in the proceedings that resulted

in his removal and suspension from union office. If true,

this assertion would state a violation of the “fair process

in disciplinary proceedings.” 5 U.S.C. § 7120(a). Plaintiff

also alleges impropriety in the reversal of the February 8,

1989 election. The CSRA mandates “periodic elections to

be conducted subject to recognized safeguards.” 5 U.S.C.

§ 7120(a). Thus, the Court finds that Plaintiff’s claims are

covered by 5 U.S.C. § 7120.

C. THE CSRA CONTAINS THE EXCLUSIVE REM-

EDY FOR PLAINTIFF’S CLAIMS

The Court, finding that the CSRA applies to Plain-

tiff’s claims, is compelled to dismiss Plaintiff’s Complaint

as the CSRA’s comprehensive statutory scheme precludes

judicial review of the Plaintiff’s claims. Karahalios v.

National Federation of Federal Employees, Local 1263, 109 S.

Ct. 1282, 1286 (1989).

IT IS SO ORDERED.

Signed this 29 day of March 1991.

/s/ Emilio M. Garza

EMILIO M. GARZA

United States District Judge