Petition for Writ of Certiorari — Hadley v. Hawaii Government Employees' Association (No. 08-371)

Supreme Court

0S (‘) FILED -_

No.

08-371 SEP 18 2008

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

e

LINDA K. HADLEY,

Petitioner,

V.

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION (HGEA),

AFSCME, LOCAL 152, AFL-CIO,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

R. STEVEN GESHELL

6600 Kalanianaole Hwy., Ste. 116

Honolulu, HI 96825

(808) 396.7701

Attorney for Petitioner

——-~

———

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the courts below deprived Petitioner of

her constitutional rights to access the federal courts,

due process, and equal protection guaranteed by the

First and Fourteenth Amendments to the United

States Constitution by dismissing her Vaca vs. Sipes,

386 U.S. 171 (1967), hybrid claim against Respon-

dent Union for breach of its duty of fair representa-

tion.

2. Whether the petition for certiorari should be

granted to resolve the conflict between the Third and

Ninth Circuit Court decisions on whether the federal

district court has subject-matter jurisdiction over the

public employee’s claim against the public union for

breach of its duty of fair representation.

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........:.ccsccsscsscovesceeseees i

DOdehab OF AUTHORITIES ........ccccsscsscostasevsacsoneoss li

FFE TIMI IY oc sisisasiosevessevvesecssavenveseesvcdesvenens 1

STATEMENT OF JURISDICTION ...................... 1

CONSTITUTIONAL AND STATUTORY PROVI-

I i voce inincicuasaunodpoiesdvkeies one Auenncaaas See 2

DLA Smee © OF THE CASE............ccccccevscesesseeseee

REASON FOR ALLOWANCE OF THE WRIT...... 7

REID -9s.cssrassiniavanissannsnsieiidceectatqsians mem aeln 10

IIT 63. ccicssowicienaisvonsncsiens eokesweiuniubabaeemer manent 26

APPENDICES

United States Court of Appeals for the Ninth

Circuit Memorandum, filed June 2, 2008.....App. 1-3

Order Granting Motion to Dismiss in the

District Court for the District of Hawaii, filed

_ BS ie 5 Sa Nn seen rit Reims me App. 4-15

Judgment in a Civil Case, filed March 14,

RI tsiensoin ab sibinssundisisduccoioin/spuiniie iain canna App. 16-17

Order Denying Petition for Rehearing En

Banc, Tied duly 10, ZO0G «...06:0.s.ccusascsansessseseses App. 18

lil

TABLE OF AUTHORITIES

Page

CASES

American Federation of State, County and

Municipal Employees, AFL-CIO vs. Wood-

ward, 406 F.2d 137 (8th Cir. 1969)... 18

Ayres vs. International Brotherhood of Electri-

cal Workers, 666 F.2d 441 (9th Cir. 1982) ...... passim

Bolling vs. Sharpe, 347 U.S. 497, 74 S.Ct. 693

ee 20

Bowen vs. United States Postal Service, 459

OR 25 BR ae ae Oe.) ee 15

California Motor Transport Co. vs. Trucking

Unlimited, 404 U.S. 508, 92 S.Ct. 609

UE Mitr cacieicass ia cics is iecedh Grier uamaneciepioberneees 17, 23, 24

Cooper vs. Fitzharris, 586 F.2d 1325 (9th Cir.

EERO TESA pence roe Sr an eee Sy ae Sh PIT OO RE a ee Oe 23

Del Costello vs. International Brotherhood of

Teamsters, et al., 462 U.S. 151 (1983) ........... passim

Farber vs. City of Paterson, 440 F.3d 131 (3d

SORENSEN SEE riaie nee SeenON, /= BO TUN 9,10, 15, 19, 26

Frontiero vs. Richardson, 411 U.S. 677, 93

I I I ids cbr cs wns cs ceccadkvavSespeenvicedaanenkensveie 21

Hudson us. Palmer, 468 U.S. 517 (1984)................... 23

In re Herrick and Irish, 82 Haw. 329, 922 P.2d

ki” AREER Sp O88 Hae a NS Pee aan EE COI 20

In re Lum Yip Kee, 32 Haw. 385 (1932) .............. 19

In re Smythe, 592 N.W.2d 628 (Wis. 1999)................ 19

lv

TABLE OF AUTHORITIES — Continued

Page

Jimenez vs. Weinberger, 417 U.S. 628, 94 S.Ct.

I iisiasc inchs tinea as clenodaceacoceammecenics Oe

Johnson vs. Avery, 393 U.S. 483 (1969)...........0...2.... 23

Kahawaitolaa vs. Norton, 386 F.3d 1271 (9th

Oe PIR tsa cara cc cabins nm unatopcegedkin uci mmcomanaclaens 25

Lewis us. Casey, 518 U.S. 348, 116 S.Ct. 2174

RANE sicostaris:celsieeconicwetssvaapinlccichinaitais imenedgemiaabadbccbasesauedies 17

Long vs. District Court of Iowa, Lee County,

lowa, 385 U.S. 192, 87 S.Ct. 362 (1966)................ 17

Martin vs. New York State Department of

Correctional Services, et al., 224 F.Supp.2d

OS re ee Ee es ecient ae 16

Poe vs. HLRB, 105 Haw. 97 (2004) ...................... 24, 25

Professional Association of College Educators,

TSTA/NEA vs. El Paso County Community

College District, 730 F.2d 258 (5th Cir. 1984)........ 18

Radtke vs. American Federation of State,

County and Municipal Employees, 376

F.Supp.2d S93 CED Wi8. ZOOS). ......cecccecccccccsscecsseeses 16

‘Schlesinger vs. Ballard, 419 U.S. 498, 95 S.Ct.

po a, | SERRSRERSCRNR Gen RtcPsshepston OP eeire ie SBR ara aee POETS 21

Schneider vs. Rusk, 377 U.S. 163, 84 S.Ct.

Be ET vccaraniensenramuisireecteussoncsadaied octckeeaoeabbabeatne 20

State vs. Mallan, 86 Haw. 440, 950 P.2d 178

5 BERRRECRET RSA Pa eee, ae foe ee Ow RM eM eT Rae Nt Roe OR 19

Steele vs. Louisville & N. R. Co., 323 U.S. 192,

A in aeknio veh oubisisancdsacnoiiabiocdsbaomnnens 14

Vv

TABLE OF AUTHORITIES — Continued

Page

Troyer vs. Adams, 102 Haw. 399, 77 P.3d 83

SESS SETS ES DOES OO CE TTD 19

U. S. us. Gilley, 836 F.2d 1206 (9th Cir. 1988)........... 23

Vaca us. Sipes, 386 U.S. 171 (1967)................... passim

Weber us. Department of Veterans Affairs, 521

See SIE SO a ED nnn acc cnanereconvasnscecenesecons 23

Weinberger vs. Wiesenfeld, 420 U.S. 636, 95

a cascnniidcandnnhsodseveeioneutsiguuonceeoerts 21

West vs. Conrail, 481 U.S. 35 (1987)....... 36. 31. 12, 33

Wilbur vs. Locke, 423 F.3d 1101 (9th Cir. 2005) ........ 23

Williams vs. United Airlines, Inc., 500 F.3d

Ns 5 Eee ee 23, 24

Young vs. United States Postal Service, 907

RI OE UU ono... eacaeccnccevastvaceveesesesenene 16

STATUTES

Hawaii Revised Statutes

cic vcslamenesncsaneounens 2, 15, 19, 22

UNITED STATES CODE

ee. cecsuneeceecsnuccuccenes 13, 14

IL TION B.D occ evcvccconesecenaneccevecsseonveeetoun 1

3 I I iv cnnecsncascevweosenssacenecevsséusverwnien 7

Se 3, 7

ES 12

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TABLE OF AUTHORITIES — Continued

Page

BN I BID oo onic yasies code ssccocccdcescsovccdonrcoetes 11

Be i INE I) oo os oss ssescsscoscocesesvece 11, 13, 23

pe BS | ar So; 4; 1, ae

Dee os cocasendnsadecnvecneralecusoents 7

TE PE BET) viiscnsviccsrscecsssvccecosscnsccnvesese 4,16

TE ME FEE FL Beivcoiccvscessesccvaccsessévosovesesense 4,7,12

FI ois idcccdentavesssvsesscesceusesooresvanss 17

CONSTITUTIONAL PROVISIONS

United States Constitution

NN occ daeiss cisissscceversiccesesecporseeeves passim

BN ERNE ooo csnscevecesscnesscccsecesssssccceusetepasens 23

a ee Zz, 42, 18, 20s 2s

Fourteenth Amendment ..................cscsceccseseenecs 18, 21

Rules and Regulations

United States Supreme Court Rules

ss easacdaveonndavouvsecedsvstesswsaeeuvaes 26 ©

1

OPINIONS BELOW

The Ninth Circuit Court of Appeals issued the

initial opinion on June 2, 2008 in its unpublished

Memorandum Decision. (Appendix 1-3). The Ninth

Circuit affirmed the March 13, 2006 decision of the

United States District Court for the District of Ha-

waii dismissing the Petitioner’s Complaint for lack of

subject matter jurisdiction (Appendix 4-15) and the

March 14, 2006, Judgment in the United States

District for the District Court for the District of

Hawaii dismissing Petitioner’s Complaint. (Appen-

dix 16-17). On July 10, 2008, the Ninth Circuit Court

filed the Order Denying the Petition for Rehearing En

Banc. (Appendix 18).

Sd

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1254(1). The Ninth Circuit Court of Appeals Judg-

ment Affirming the U.S. District Court for the Dis-

trict of Hawaii was filed June 2, 2008 (Appendix 1-

3). The Petition for Rehearing En Banc was filed

June 12, 2008. The Ninth Circuit Court of Appeals

Order Denying the Petition for Rehearing En Banc

was filed July 10, 2008 (Appendix 18).

¢

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The First Amendment to the United States

Constitution provides:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging freedom of

speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for redress of grievances.”

The Fifth Amendment to the United States

Constitution provides, in pertinent part:

“No person ... shall ... be deprived of life,

liberty or property, without due process or

law, nor shall private property be taken for

public use, without just compensation.”

Hawaii Revised Statutes (HRS) § 89-8(a) pro-

vides, in pertinent part:

“(a) The employee organization which has

been certified by the board as representing

the majority of employees in an appropriate

bargaining unit shall be the exclusive repre-

sentative of all employees in the unit. As ex-

clusive representative) it shall have the right

to act for and negotiate agreements covering

all employees in the unit and shall be re-

sponsible for representing the interests of all

such employees without discrimination and

without regard to employee organization

membership... ”

3

28 U.S.C. § 1331 provides, in pertinent part:

“Federal question. The district court shall

have original jurisdiction of all civil actions

arising under the Constitution, laws, or trea-

ties of the United States.”

29 U.S.C. § 185 provides, in pertinent part:

“Suits by and against labor organiza-

tions.

(a) Venue, amount, and citizenship.

Suits for violation of contracts between an

employer and a labor organization represent-

ing employees in an industry affecting com-

merce as defined in this chapter, or between

any such labor organization, may be brought

in any district court of the United States

having jurisdiction of the parties, without

respect to the amount in controversy or with-

out regard to the citizenship of the parties.

* > *

(c) Jurisdiction.

For the purposes of actions and proceedings

by or against labor organizations in the dis-

trict courts of the United States, district

courts shall be deemed to have jurisdiction of

a labor organization (1) in the district in

which such organization maintains its prin-

cipal office, or (2) in any district in which its

duly authorized officers or agents are en-

gaged in representing or acting for employee

members.”

4

29 U.S.C. § 187(b) provides:

“Whoever shall be injured in his business or

property by reason of any violation of subsec-

tion (a) of this section may sue therefor in

any district court of the United States sub-

ject to the limitations and provisions of § 185

of this title without respect to the amount of

controversy, or in any other ceurt having ju-

risdiction of the party, and shall recover the

damages by him sustained and the costs of

the suit.”

29 U.S.C. § 412 provides:

“Any person whose rights secured by the

provisions of this subchapter have been in-

fringed by any violation of this subchapter

may bring a civil action in a district court of

the United States for such relief (including

injunctions) as may be appropriate. Any such

action against a labor organization shall be

brought in the district court of the United

States for the district where the alleged vio-

lation occurred, or where the principal office

of such labor organization is located.”

SJ

STATEMENT OF THE CASE

Petitioner is a registered professional nurse in

the State of Hawaii and was a full-time permanent,

registered professional nurse at the Hawaii Youth

Correctional Facility (HYCF) since October of 2001.

Respondent is her union, representing the Hawaii

5

Government Employees under a collective bargaining

agreement (CBA). This is a hybrid action against the

union per Vaca us. Sipes, 386 U.S. 171 (1967), and

was commenced within six months of the award

denying her just compensation in violation of the

CBA. The Respondent (hereafter, “Union”), egre-

giously violated its duty of fair representation by

deliberately refusing to enforce the CBA by failing to

call Petitioner’s expert witnesses to prove that she

was entitled to extra pay at the HYCF. She started

this lxwsuit in federal court within six months of the

awe:i denying her such compensation, per Del

Costello vs. International Brotherhood of Teamsters, et

al., 462 U.S. 151 (1983). When Petitioner was hired

by the State, she was informed that the Youth Facil-

ity was a 24-hour, seven-day-a-week operation, even

though the medical unit was not open 24 hours a day.

To accomplish that, she was given a pager and a cell

phone to enable her to be on call for service to the

facility, as she was the only full-time medical person-

nel at the HYCF and was solely responsible for all the

medical services and decisions there on a 24-hour,

seven-days-a-week basis for the youth adjudicated to

that facility. The Union told her that she was entitled

to stand-by pay for being on call 24 hours per day,

seven days a week. Eventually the Union took the

case to arbitration about two years after she first

contacted her union, seeking extra pay. Petitioner

asked the union attorney to call Dr. Bidwell as a

witness to prove the need for her to be on call 24

hours a day. Dr. Bidwell would have confirmed that

she was entitled to back- and front-pay for stand-by

6

pay, as she was the principal medical personnel at

HYCF. Dr. Bidwell was a physician hired on contract

with the State and was not available 24 hours a day,

seven days a week. Petitioner also asked the union

attorney to call two other witnesses to support her

position, but the union attorney refused to do so.

Moreover, at the arbitration hearing, the employer’s

witness committed perjury about Dr. Bidwell being on

call rather than Petitioner, so if Dr. Bidwell had

testified, he would have denied such fact and sup-

ported Petitioner. The Complaint alleged the Union

breached its duty of fair representation, as follows:

(1) failing to properly represent Petitioner

and calling her necessary witnesses at the

arbitration;

(2) advising her that she should not go to

arbitration and that she would get nothing

there;

(3) advising her that she should use the

chain of command to get better results than

arbitration;

(4) falsely advising her she had been of-

fered $24,000 to settle and another $24,000

in compensation;

(5) filing the arbitration in an untimely

manner;

(6) failing to call Dr. Bidwell and other wit-

nesses at the arbitration; and

(7) failing to impeach the State’s chief wit-

ness by using the testimony of Dr. Bidwell

7

and his documentation to prove that she

was, in fact, on call, and Dr. Bidwell was not.

Petitioner sought loss of income damages of

$40,000, general damages for emotional distress, and

punitive damages, plus medical expenses and attor-

ney’s fees.

The basis of federal jurisdiction in the district

court was based on Vaca us. Sipes, 386 U.S. 171

(1967); 28 U.S.C. § 1331; 29 U.S.C. §§ 185, 187, &

412. The Court of Appeals had jurisdiction of her

appeal under 28 U.S.C. § 1291.

¢

REASONS FOR ALLOWANCE OF THE WRIT

For the first time in 1967, this Court decided that

employees have a cause of action against their union

for breach of duty of fair representation, which claim

may be brought in either federal or state court. This

appears to be the first case that brings before this

Court the issue of whether Vaca vs. Sipes also ac-

corded that same remedy in federal and state courts

to public employees whose union breaches its duty of

fair representation by deliberately refusing to enforce

the CBA by egregious conduct which harms the

employee. In the 41 years that followed Vaca, public

unions have escaped responsibility for their actions,

making, in effect, public employees second-class

citizens because they could not access the federal and

state courts using Vaca us. Sipes as a theory of recov-

ery and jurisdictional basis. Now is the time for this

8

Court to accept certiorari and correct this gross

injustice to public employees. There is absolutely no

reason why public employees and public unions

should be treated differently than the private-sector

employees and union. This country is founded upon

the principles of equal justice for all, but the Ninth

Circuit and trial court decisions have deprived Peti-

tioner of her constitutional rights to access courts, to

associate in the union to due process and equal

protection of the laws. Thus, it is time to correct this

total injustice and grant public employees the same

rights that private-sector employees have to pursue

their judicial remedies in federal court against their

union for breach of duty of fair representation under

Vaca vs. Sipes.

In the 41 years that have elapsed since Vaca,

undoubtedly the volume of the number of public

employees has increased dramatically. Therefore, it is

time to recognize that public employees have the

same right to access federal and state courts to pur-

sue their hybrid action against their union for breach

of duty of fair representation. Vaca should not be

restricted to simply private-sector employees. There

is no valid reason for such distinction to make public

employees inferior to those in the private sector. This

amounts to an invidious discrimination based upon

the nature of the employer. Governmental employees

are, without a doubt, entitled to the same constitu-

tional rights and same remedies that private-sector

employees are in the eyes of the law. Now is the time

9

to correct this gross injustice by granting certiorari to

correct such injustice.

In addition to the important question of federal

law that has not been but should be settled by this

Court, Petitioner asserts that there is a conflict in the

decisions of the Third and the Ninth Circuit Courts of

Appeal on the issue of whether the district court has

jurisdiction over the breach of duty of fair representa-

tion claim by a public union employee against the

union. The Third Circuit recently held, in Farber us.

City of Paterson, 440 F.3d 1381, 143-145, (3d Cir.

2006), whereas Ayres us. International Brotherhood of

Electrical Workers, 666 F.2d 441 (9th Cir. 1982), held

to the contrary that political entities such as the

State and their political subdivisions are not employ-

ers and, therefore, the public employees’ tort claim for

breach of duty of fair representation may not be

brought in federal court as the district court lacks

subject-matter jurisdiction. Accordingly, since there is

a serious conflict on this important federal question

which should be settled by this Court, granting

certiorari is the appropriate remedy.

¢

10

ARGUMENTS

A. The district court had subject matter ju-

risdiction of the hybrid claim against the

Union and the State because Ayres needs to

be overruled and Vaca and Farber applied.

With all due respect to the district court in apply-

ing and the Ninth Circuit Court deciding Ayres vs.

International Brotherhood of Electrical Workers, 666

F.2d 441 (9th Cir. 1982), it is respectfully submitted

that such application of the hybrid action recognized

in Vaca us. Sipes, supra, and Del Costello, supra, is

broader than applied by those courts in this case.

Clearly, Vaca vs. Stipes set new precedent for authoriz-

ing suits in federal and state court by employees

whose union breached its duty of fair representation

(DFR) in representing the employee under a collective

bargaining agreement (CBA). Although those cases

involved non-public employees against non-public

employers, the legal principles announced and ap-

plied in those two cases are clearly broader than

simply reading the statutory definitions to determine

whether employees may pursue their legal remedies

under Vaca vs. Sipes and Del Costello in federal court.

This conclusion is supported by the 1987 case of West

us. Conrail, 481 U.S. 35 (1987). The West case was

decided April 6, 1987. Ayres was decided January 28,

1982. In West, the railroad employee sued his em-

ployer for breach of CBA and against his union for

breach of its duty of fair representation. The district

court granted summary judgment for the defendants,

11

and the employee appealed. The Third Circuit af-

firmed, but this Court, applying Del Costello, held:

“Although we have not expressly so held be-

fore we now hold that when the underlying

cause of action is based on federal law and

the absence of an express federal statute of

limitations makes it necessary to borrow a

limitations period from another statute, the

action is not barred if it has been ‘com-

menced’ in compliance with rule 3 within the

borrowed period.” 481 U.S. at 39, 107 S.Ct.

at 1541.

It is important to note that, under the definitions

section in the Labor Management Relations Act, 29

U.S.C. § 152(3), employee excludes, in pertinent part,

“any individual employed by an employer subject to

the Railway Labor Act as amended from time to time

or by any other person who is not an employer as

herein defined.”

Here, and in Ayres, contrary to the reasoning of

West, the employee was determined to fall outside the

definition of an employee, and the state was not an

employer under the definitions contained in 29 U.S.C.

§ 152(2). Therefore, the trial and appellate courts

erroneously determined that the trial court lacked

jurisdiction to decide this hybrid action against the

public employees’ Union. Certainly, if there were a

jurisdictional issue that prevented the district court,

the Third Circuit, and the U.S. Supreme Court from

deciding West vs. Conrazl, it would have been raised

and considered at each level. This Court saw no

12

jurisdictional impediment to deciding the case in

West. Therefore, Petitioner argues that, under the

facts of this case where Petitioner is a public em-

ployee suing her public Employer and her Union for

breach of duty of fair representation, she is entitled to

pursue such remedies in U.S. District Court for the

District of Hawaii. The breach of duty of fair repre-

sentation is based on a fiduciary relationship between

the union and the employee and is not solely

grounded on a statutory definition. Vaca and Del

Costello. As argued later, to apply Vaca and Del

Costello to exclude public employees from their legal

and equitable remedies in federal court, is too restric-

tive and violates their constitutional rights guaran-

teed under the First and the Fifth Amendments to

the United States Constitution. Such conclusion is

further reinforced by 29 U.S.C. § 412 which provides:

“Any person whose rights secured by the

provisions of this subchapter have been in-

fringed by any violation of this subchapter

may bring a civil action in a district court of

the United States for such relief (including

injunctions) as may be appropriate. Any such

action against a labor organization shall be

brought in the district court of the United

States for the district where the alleged vio-

lation occurred, or where the principal office

of such labor organization is located.”

29 U.S.C. § 142(3) provides: “The terms ‘com-

merce, ‘labor disputes,’ ‘employer,’ ‘employee,’ ‘labor

13

organization,’ ‘representative, ‘person,’ and ‘supervi-

sor’ shall have the same meaning as when used in

subchapter II of this chapter.”

The definitions found in subchapter IJ of the

National Labor Relations Act. 29 U.S.C. § 152(3),

defines employee in pertinent part, as follows:

“(3) The term “employee” shall include any

employee, and shall not be limited to the

employees of a particular employer, unless

this subchapter explicitly states otherwise,

and shall include any individual whose work

has ceased as a consequence of, or in connec-

tion wit’., any current labor dispute or be-

cause of any unfair labor practice, and who

has not obtained any other regular and sub-

stantially equivalent employment, but shall

not include any individual employed as an

agricultural laborer, or in the domestic ser-

vice of any family or person at his home, or

any individual employed by his parent or

spouse, or any individual having the status

of an independent contractor, or any individ-

ual employed as a supervisor, or any individ-

ual employed by an employer subject to the

Railway Labor Act [45 U.S.C.A. § 151 et

seq.], as amended from time to time, or by

any other person who is not an employer as

herein defined.”

As is readily seen, this employee definition pur-

ports to exclude individuals employed by employers

subject to the Railway Labor Act, 15 U.S.C. § 151, but

this Court, in West vs. Conrail, had no jurisdictional

14

difficulty applying Vaca vs. Sipes and Del Costello to

the hybrid action by the railroad employee against

his employer and union. The same reasoning applies

here to cause this Court to overrule Ayres vs. IBEW,

supra. The district court clearly had subject matter

jurisdiction over this hybrid action against the Union

for breach of its fiduciary duty of fair representation

and against the Employer under the CBA.

In the predecessor to Vaca, Steele vs. Louisville &

N. R. Co., 323 U.S. 192, 65 S.Ct. 226 (1944), decided

that a labor union owes a judicially created duty to

represent the members under the Railway Labor Act,

and said, in pertinent part, at 323 U.S. 202, 65 S.Ct.

232:

“We think that the Railway Labor Act im-

poses upon the statutory representative of a

craft at least as exacting a duty to protect

equally the interests of the members of the

craft as the Constitution imposes upon a leg-

islature to give equal protection to the inter-

ests of those for whom it legislates * * *

We hold that the language of the Act

to which we have referred read in the light

of the purposes of the Act expresses the

aim of Congress to impose on the bargaining

representative of a craft * 203 or class of em-

ployees the duty to exercise fairly the power

conferred upon it in behalf of all those for

whom it acts, without hostile discrimination

against them.”

15

In Farber vs. City of Paterson, 440 F.3d 131 (3d

Cir. 2006), the Court held, inter alia, the city em-

ployee may properly sue the union in federal court for

a Vaca breach of duty of fair representation claim

even though the state statute required unfair Jabor

practices be brought before the state labor relations

commission. This conflicts with Ayres, supra, creating

the conflict between the Ninth and Third Circuits.

Hawaii’s statute, HRS § 89-8(a), as in Farber, grants

to the public union the exclusive right to represent

the interests of public employees. Therefore, as in

Farber, the union has a corresponding duty of fair

representation per Vaca, supra. Farber further held,

in pertinent part, at p. 143, that even though the New

Jersey statute granted exclusive power to the Public

Employment Relations Commission of New Jersey to

hear unfair practice claims that would not preempt

Farber’s breach of duty of fair representation claim at

law in federal court. The Farber reasoning was that,

as in Vaca, even though the unfair labor practice

claims were ordinarily heard by the NLRB, Vaca

decided that such provision would not prevent the

employee from suing her union for breach of duty of

fair representation implied in § 9(a) of the National

Labor Relations Act. The same reasoning and deci-

sion applies here.

Postal workers were entitled to sue the union

and the employer, United States Postal Service, in

federal court under Vaca claims without any jurisdic-

tional problem in the cases of Bowen vs. United States

Postal Service, 459 U.S. 212, 103 S.Ct. 588 (1983);

16

and Young vs. United States Postal Service, 907 F.2d

305 (2d Cir. 1990).

Two district courts have found no jurisdictional

impediment to a union employee working for a politi-

cal subdivision of a state to pursue their hybrid

actions in federal court. Radtke vs. American Federa-

tion of State, County and Municipal Employees, 376

F.Supp.2d 893 (E.D.Wis. 2005); and Martin vs. New

York State Department of Correctional Services, et al.,

224 F. Supp.2d 434 (N.D.N.Y. 2002).

The Ninth Circuit and the district court commit-

ted reversible error in refusing to apply 29 U.S.C.

§ 187(b) which makes it clear that:

“Whoever shall be injured in his business or

property by reason of any violation of subsec-

tion (a) of this section may sue therefor in

any district court of the United States sub-

ject to the limitations and provisions of § 185

of this title without respect to the amount of

controversy, or in any other court having ju-

risdiction of the party, and shall recover the

damages by him sustained and the costs of

the suit.”

That statute was another basis for district court

jurisdiction.

17

B. Dismissal of the hybrid action for lack of

subject matter jurisdiction deprives the

Plaintiff of her constitutional rights to ac-

cess the federal courts, due process, and

equal protection.

(1) Plaintiff’s First Amendment right to

access courts was denied.

Clearly, the First Amendment to the United

States Constitution prohibits Congress from passing

any law abridging the right of the people “to petition

the Government for redress of grievances.” There is

no dispute that the right to access courts and to

petition the Government for redress of grievances is a

fundamental right, protected by the First Amend-

ment to the United States Constitution. California

Motor Transport Co. vs. Trucking Unlimited, 404

U.S. 508, 510, 92 S.Ct. 609, 612 (1972). The right to

access courts is a fundamental constitutional right.

Lewis vs. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174,

2177 (1966). The right to sue implicates the equal

protection provisions of our constitutions. Long vs.

District Court of Iowa, Lee County, Iowa, 385 U.S.

192, 194, 87 S.Ct. 362, 364 (1966).

It is also clear that 42 U.S.C. § 1981 protects the

right of all persons in the United States to enforce

contracts and to sue and further protects the rights

of all persons in the United States “against impair-

ment by nongovermental discrimination and impair-

ment under color of state law.” It needs no citation of

legal authority to state the well-recognized proposi-

tion of law that the First Amendment rights are

18

incorporated in the Fourteenth Amendment Due

Process Clause of the U. S. Constitution.

American Federation of State, County and Mu-

nicipal Employees, AFL-CIO vs. Woodward, 406 F.2d

137, 139 (8th Cir. 1969), recognized that “Union

membership is protected by the right of association

under the First and the Fourteenth Amendments.

Thomas vs. Collins, 323 U.S. 516, 65 S.Ct. 315, 89

L.Ed. 430 (1945); McLaughlin vs. Tilendis, 398 F.2d

287 (7th Cir. 1968).” The First Amendment right to

join and participate in a union flows not only to

unions but to the members and organizers of that

union, including the right of public employees to join

unions and the right of their unions to engage in

advocacy and petitioning the government on their

behalf. Professional Association of College Educators,

TSTA/NEA vs. El Paso County Community College

District, 730 F.2d 258, 262 (5th Cir. 1984).

Here, by application of Ayres, supra, the district

court and the circuit court concluded that the federal

court system is not available to public employees in

hybrid actions for breach of duty of fair representa-

tion and breach of the CBA. Clearly, all employees

should have the right to access courts and not just

restricted to employees of non-public employers.

There is no sound reason for public policy or applica-

tion of the First Amendment that should preclude

public employees from suing their union and em-

ployer in federal court, whereas private employees

in the private sector have rights to do so in federal

court under Vaca since 1967. This is an invidious

19

discrimination and deprivation of the right to access

courts for employees of the state and political subdi-

visions and against their own public union. Petitioner

had no control over her union’s conduct (HRS § 89-

8(a)). Her remedy is best using Vaca in federal court

because the State court is a co-employee of the State.

Under those circumstances, the employee’s best

forum is federal court under Vaca, supra; and

Farber, supra.

(2) Plaintiff’s Fifth Amendment right to

due process and equal protection were

denied.

Certainly, no reasonable person would quarrel

with the concept that not only our legislature but our

trial and appellate courts are required to accord

litigants due process of law and equal protection of

the laws. In re Lum Yip Kee, 32 Haw. 385 (1932); In re

Smythe, 592 N.W.2d 628, 632 (Wis. 1999). The Hawaii

Supreme Court has recognized that due process

contains both procedural and substantive compo-

nents. State vs. Mallan, 86 Haw. 440, 950 P.2d 178

(1998). Where a fundamental right is implicated,

judicial action is subject to the strict-scrutiny stan-

dard but where a fundamental right is not implicated,

the governmental action is subject only to the ra-

tional-basis test. Mallan, 86 Haw. at 451, 950 P.2d

at 189. We also know from Troyer vs. Adams, 102

Haw. 399, 433-434, 77 P.3d 83, 117-118 (2003), that

“due process is not a fixed concept requiring a

specific procedural course in every situation

20

(citation omitted). Rather, due process is

flexible and calls for such procedural protec-

tions as the particular situation demand

(citation omitted). The basic elements of pro-

cedural due process require notice and an

opportunity to be heard at a meaningful time

and in a meaningful manner.”

A substantive challenge to state action is either that

the state action is facially or as applied, invalid under

the Due Process Clauses of the Constitution. Jn re

Herrick and Irish, 82 Haw. 329, 345, 922 P2d 942,

958 (1996).

By following the Ayres construction of 29 U.S.C.

§ 185, the Court prevented public employees from

using Vaca as a remedy available to the private sector

employees. This clearly violates due process and

equal protection based upon the following authorities

and, while not directly in point on the issue of

whether preventing public-sector employees from

suing their union and public employer in federal

court, they stand for the proposition that due process

and equal protection were violated under the Fifth

Amendment to the United States Constitution:

(a) Bolling vs. Sharpe, 347 U.S. 497, 74

S.Ct. 693 (1954) [Racial segregation in public

education violated Fifth Amendment due

process because equal protection and due

process are fundamental rights of fairness

which are not mutually exclusive. |

(b) Schneider vs. Rusk, 377 U.S. 168, 84

S.Ct. 1187 (1964) [Denationalization statute

21

concerning naturalized citizens residing

continuously for three years in their birth

country violated due process because it dis-

criminates unconstitutionally against natu-

ralized citizens. ]

(c) Jimenez vs. Weinberger, 417 U.S. 628,

94 S.Ct. 2496 (1974) [Federal welfare law

violated equal protection and due process

guaranteed by the Fifth Amendment to the

United States Constitution].

(d) Frontiero vs. Richardson, 411 U.S. 677,

93 S.Ct. 1764 (1973) [Federal statute con-

cerning the right of female members of the

uniformed services to claim her spouse as a

dependent violated the due process clause of

the Fifth Amendment under the strict-

judicial-scrutiny standard}.

(e) Schlesinger vs. Ballard, 419 U.S. 498,

95 S.Ct. 572 (1975) [Although Fifth Amend-

ment does not contain an equal protection

clause as does the Fourteenth Amendment,

the Fifth Amendment Due Process Clause

prohibits the federal government from dis-

crimination which unjustifiably violates due

process].

(f) Weinberger vs. Wiesenfeld, 420 U.S. 636,

95 S.Ct. 1225 (1975) [Federal social security

statute violated equal protection under the

Due Process Clause of the Fifth Amendment,

prohibiting gender-based discrimination].

Under the plain-error standard of review, Peti-

tioner has been clearly prejudiced by being effectively

22

excluded from federal court jurisdiction on her hybrid

claim against her Union in violation of the foregoing

constitutional amendments.

It is, therefore, argued that the district and

circuit court decisions applying Ayres result in an

invidious discrimination against public employees.

This case appears to be the first case raising the

constitutional issues that such application of Vaca

and Del Costello hybrid claims by public employees

against their union and public employer violates due

process and equal protection by denying them access

to federal courts. Excluding public employees from

federal court jurisdiction and construing the federal

statutes as doing so makes public employees second-

class citizens. The Union has the exclusive right to

represent the employee’s interest against the em-

ployer (HRS § 89-8(a)). The public employee should

correspondingly have the Vaca DFR remedy in federal

and State court. If she cannot pursue her hybrid

action in federal court, this puts the employee in state

court where the judges are employed by their common

employer. Surely, that prejudices Petitioner’s ability

to redress the wrong asserted here. If public employ-

ees have no hybrid claim in federal court, yet union

employees in private enterprise have such a claim,

this places public employees in a clearly inferior and

prejudicial position under employment law. Such

result denies public employees due process and equal

protection by violating their First Amendment right

to access courts. Therefore, Plaintiff requests that

this Court overrule Ayers, as it is unconstitutional on

23

its face and as applied to public union employees

seeking relief against their union and their employer.

C. The Ninth Circuit Decision is Flawed on

Constitutional Issues.

The Ninth Circuit relied on Weber vs. Department

of Veterans Affairs, 521 F.3d 1061, 1063-1064 (9th Cir.

2008), claiming that Hadley’s constitutional chal-

lenges to LMRA were not preserved, and in doing so

overlooked Cooper vs. Fitzharris, 586 F.2d 1325, 1333

(9th Cir. 1978); and U.S. vs. Gilley, 836 F.2d 1206,

1212 (9th Cir. 1988), under the plain-error doctrine.

Here, Hadley is arguing that the District Court, not

the statute, deprived her of constitutional right to due

process, equal protection, and accessing courts. The

panel did not reach that issue in its decision on

constitutional grounds. Instead, the panel cited

Wilbur us. Locke, 423 F.3d 1101, 1116 (9th Cir. 2005);

and Williams vs. United Airlines, Inc., 500 F.3d 1019,

1022 (9th Cir. 2007), claiming that accessing courts is

not an absolute right but is limited by the statutory

grant of jurisdiction. Wilbur cited Hudson vs. Palmer,

468 U.S. 517, 523 (1984); and California Motor

Transport Co. vs. Trucking Unlimited, 404 U.S. 508,

515 (1972). Hudson reasoned that persons should

have reasonable right to access courts under Johnson

us. Avery, 393 U.S. 483 (1969). The Hudson case even

recognized that prisoners in confinement are entitled

to enjoy due process protection but not Fourth

Amendment protection against searches. Johnson vs.

Avery reversed a rule prohibiting one prisoner from

24

helping another to petition the court for habeas

corpus. California Motor held, inter alia, that the

right to access courts is within prescribed procedure

but that First Amendment rights cannot be used for

achieving “substantive evils.” 404 U.S. at 515. Here,

the substantive evil to exclude the public employees

from using Vaca and Del Costello in federal court is

that it makes second-class citizens out of public

employees, whereas private employees can access the

federal courts for their hybrid claims against their

union.

In the Williams case, the issue was whether the

Airline Whistleblower Protection Program authorized

the employee to bring suit in federal court for viola-

tions of the Whistleblower Protection Program. The

Court held that it did not because the District Court

lacked subject-matter jurisdiction. This reasoning

does not apply to the case at bar because Vaca judi-

cially created the right of action against the union

and the employer to redress the wrong by the union

in federal court. Therefore, where the private em-

ployee has such right, it deprives a public employee of

equal protection and due process rights to access the

Court to hold that public employees have no federal

claim under Vaca. Vaca was not a statutory construc-

tion case but a judicially created right of action.

The Ninth Circuit decision cited Poe vs. HLRB,

105 Haw. 97, 102 (2004), for the proposition that

Hadley could have brought her claim in state court.

This is an incorrect reading of Poe which applied

Vaca, where the employee filed prohibited-practice

25

complaints with the Hawaii Labor Relations Board,

lost, and appealed that to the State circuit court. Poe

used Vaca to hold, inter alic, that a wrongfully dis-

charged employee may bring an action against the

employer provided the employee can prove the union

breached its duty of fair representation. There, the

Court also held in footnote 2 (105 Haw. at 103) that

the employee had exhausted his administrative

remedies and so need not further pursue grievances

with the union. However, Poe failed to establish that

he was prevented from exhausting his contractual

remedies so did not prove his union breached its duty

of fair representation so Poe lacked standing to

pursue his claim before the HLRB. Those facts and

legal reasoning are not applicable here on the consti-

tutional arguments made in this case of first impres-

sion.

Lastly, the circuit court cited Kahawaiolaa vs.

Norton, 386 F.3d 1271, 1280 (9th Cir. 2004), as requir-

ing Hadley to “negative every conceivable basis which

might support [the rationality of the statutory classi-

fication].” Here, the District Court opinion, not the

statute, was the invidious discrimination based upon

preventing public employees from using Vaca as a

remedy in federal court where private employees can

do so. Therefore, the Norton case is not applicable

here.

26

D. Certiorari must be granted to resolve the

conflict between two Circuit Court deci-

sions on the same important issue of fed-

eral court jurisdiction of the duty of fair

representation claim.

As previously noted, the case of Farber us. City of

Paterson, supra, and Ayres vs. International Brother-

hood of Electrical Workers, supra, conflict on the issue

of whether the federal district court has jurisdiction

over the public employee’s claim against the public >

union for breach of duty of fair representation. There-

fore, under Rule 10 of the U. S. Supreme Court Rules,

this Court should grant certiorari to decide this

important issue of federal jurisdiction over the Vaca

us. Sipes claim by public employees against their

public union.

,

v

CONCLUSION

For all of the foregoing reasons, Petitioner re-

spectfully requests that the Supreme Court grant

review of this matter.

Respectfully submitted,

R. STEVEN GESHELL

6600 Kalanianaole Hwy., Ste. 116

Honolulu, HI 96825

(808) 396.7701

Attorney for Petitioner

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LINDA K. HADLEY,

Plaintiff-Appellant, No. 06-15642

pk D.C. No.

HAWAII GOVERNMENT CV-05-00660-ACK

EMPLOYEES’ ASSOCIA- MEMORANDUM*

TION, AFSCME LOCAL 152, :

AFL-CIO; (Filed Jun. 2, 2008)

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Argued and Submitted March 13, 2008

San Francisco, California

Before: RYMER, RAWLINSON, and CALLAHAN,

Circuit Judges.

Appellant Linda K. Hadley (Hadley) appeals the

district court’s dismissal of her hybrid action against

the Hawaii Government Employees’ Association and

the State of Hawaii, Department of Human Services,

for lack of subject-matter jurisdiction.

* This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

App. 2

The outcome of this appeal is controlled by Ayres

v. International Brotherhood of Electrical Workers,

666 F.2d 441 (9th Cir. 1982). Because Hadley’s em-

ployer is a political subdivision of the state of Hawaii

for purposes of the Labor Management Relations Act

(LMRA), 29 U.S.C. §§ 152, 185; Haw. Rev. Stat. § 26-4

(establishing the Department of Human Services);

NLBB v. Natural Gas Util. Dist. of Hawkins County,

Tennessee, 402 U.S. 600, 604-05 (1971) (defining

political subdivisions), the district court lacked sub-

ject-matter jurisdiction over Hadley’s hybrid action.

See Ayres, 666 F.2d at 444.

Because the district court lacked original subject-

matter jurisdiction over Hadiey’s hybrid action, no

basis existed for the exercise of supplemental juris-

diction over her state law claim. See Herman Family

Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th

Cir. 2001). Nor was the district court authorized to

transfer the claim to the state courts of Hawaii under

28 U.S.C. § 1631, which provides for the transfer of

actions only between federal courts. See 28 U.S.C.

§ 610.

Hadley’s constitutional challenges to the LMRA

were not preserved. See Weber v. Dept. of Veterans

Affairs, 521 F.3d 1061, 1063-64 (9th Cir. 2008), as

amended. In any event, her challenges are not meri-

torious. “(T]he right of access to the courts is not

absolute.” Wilbur v. Locke, 423 F.3d 1101, 1116 (9th

Cir. 2005) (citation omitted). “Jurisdiction of the

lower federal courts is ... limited to those subjects

encompassed within a statutory grant of jurisdiction.”

App. 3

Williams v. United Airlines, Inc., 500 F.3d 1019, 1022

(9th Cir. 2007) (citation omitted). Moreover, because

Hadley could have brought her claim in state court,

see Poe v. Hawaii Labor Relations Bd., 105 Haw. 97,

102 (2004), she has not been denied access to the

courts. Hadley cannot prevail on her substantive due

process or equal protection claims because she has

failed to “negative every conceivable basis which

might support [the rationality of the statutory classi-

fication}.” Kahawaiolaa v. Norton, 386 F.3d 1271,

1280 (9th Cir. 2004) (citation omitted).

Finally, because Hadley has not prevailed on

appeal, her request for attorney’s fees on appeal is

denied. See Sheet Metal Workers’ Int'l Ass’n Local

Union No. 359 v. Madison Indus., Inc., 84 F.3d 1186,

1192 (9th Cir. 1996).

AFFIRMED.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

LINDA K. HADLEY, ) Civ. No.

Rae 05-00660 ACK/KSC

Plaintiff,

V.

)

)

)

HAWAII GOVERNMENT ?

EMPLOYEES’ ASSOCIA- ?

TION, AFSCME, LOCAL ?

152, AFL-CIO; STATE OF ?

HAWAII, DEPARTMENT ?)

OF HUMAN SERVICES, :

)

Defendants.

ORDER GRANTING MOTION TO DISMISS

(Filed Mar. 13, 2006)

BACKGROUND

Linda K. Hadley (“Plaintiff”) filed a Complaint

against Hawaii Government Employees’ Association,

AFSCME, Local 152, AFL-CIO (the “Union”) and the

Department of Human Services of the State of Ha-

waii (“State Defendant”), alleging two causes of

action: (1) a “hybrid action” against the Union and

State Defendant for violation of the Labor- |

Management Relations Act (“LMRA”), 29 U.S.C.

§$ 158 and 185, and (2) State Defendant’s violation of

the Hawaii Whistleblowers’ Protection Act, H.R.S.

§ 378-61, et seg. See Complaint at 2, 8-9.

App. 5

On November 18, 2005, State Defendant filed a

Motion to Dismiss Complaint (“Moticn to Dismiss”).

On December 13, 2005, the Union filed a Substantive

Joinder in the Motion to Dismiss (“Joinder”). On

February 20, 2006, Plaintiff filed an Opposition to the

Motion to Dismiss and Joinder. On February 28,

2006, State Defendant filed a Reply. A hearing was

held on March 13, 2006.

STANDARD

A court’s subject matter jurisdiction may be

challenged under Federal Rule of Civil Procedure

12(b)(1) (“Rule 12(b)(1)”). “A party invoking the

federal court’s jurisdiction has the burden of proving

the actual existence of subject matter jurisdiction.”

See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.

1996).

On a Rule 12(b)(1) motion to dismiss for lack of

subject matter jurisdiction, the court is not “restricted

to the face of the pleadings, but may review any

evidence, such as affidavits and testimony, to resolve

factual disputes concerning the existence of jurisdic-

tion.” McCarthy v. United States, 850 F.2d 558, 560

(9th Cir. 1988). “Once the moving party [converts] the

motion to dismiss into a factual motion by presenting

affidavits or other evidence properly brought before

the court, the party opposing the motion must furnish

affidavits or other evidence necessary to satisfy its

burden of establishing subject matter jurisdiction.”

App. 6

Savage v. Glendale Union High Sch., 343 F.3d 1036,

1040 n.2 (9th Cir. 2003).

“The requirement that the nonmoving party

present evidence outside his pleadings in opposition

to a motion to dismiss for lack of subject matter

jurisdiction is the same as that required under Rule

56(e) that the nonmoving party to a motion for sum-

mary judgment must set forth specific facts, beyond

his pleadings, to show that a genuine issue of mate-

rial fact exists.” Trentacosta v. Frontier Pac. Aircraft

Indus., Inc., 813 F.2d 15538, 1559 (9th Cir. 1987).

Thus, the moving party “should prevail only if the

material jurisdictional facts are not in dispute and

the moving party is entitled to prevail as a matter of

law.” Casumpang v. Intl Longshoremen’s & Ware-

housemen’s Union, 269 F.3d 1042, 1060-61 (9th Cir.

2001).

DISCUSSION

I. Hybrid Action Claim

Count 1 of the Complaint alleges a “hybrid action

against both the employer [State Defendant] and the

Union under 29 U.S.C. §§ 158 and 185 per Vaca uv.

Sipes, 386 U.S. 171 ([ ] 1967).” See Complaint at 2;

see also id. at 8. In DelCostello v. Int'l Brotherhood of

Teamsters, the U.S. Supreme Court explained the

nature of such a hybrid action brought pursuant to

Vaca: “when the union representing the employee

[against the employer] in the grievance/arbitration

procedure acts in such a discriminatory, dishonest,

App. 7

arbitrary, or perfunctory fashion as to breach its duty

of fair representation ... an employee may bring suit

against both the employer and the union, notwith-

standing the outcome or finality of the grievance or

arbitration proceeding.” See DelCostello v. Int'l Broth-

erhood of Teamsters, 462 U.S. 151, 164 (1983); see also

Vaca v. Sipes, 386 U.S. 171 (1967).

The resulting hybrid action claim comprises two

causes of action. DelCostello, 462 U.S. at 164. “The

suit against the employer rests on § 301 [of the Labor

Management Relations Act, 29 U.S.C. § 185], since

the employee is alleging a breach of the collective

bargaining agreement.” Jd. “The suit against the

union is one for breach of the union’s duty of fair

representation, which is implied under the scheme of

the National Labor Relations Act.” Jd. To prevail

against either the employer or the Union, the em-

ployee-plaintiff must not only show that his “dis-

charge was contrary to the contract but must also

carry the burden of demonstrating a breach of duty

by the Union.” Jd., 462 U.S. at 165. The suit can

therefore be described as a hybrid Section 301/fair

representation claim, amounting to a direct challenge

to the private settlement of disputes under the collec-

tive bargaining agreement. Id.

A. Federal Jurisdiction over Hybrid Ac-

tions in General

Vaca was an appeal from the Supreme Court of

Missouri, in which the U.S. Supreme Court specifically

App. 8

determined that “Missouri courts had jurisdiction in

[that] case” to hear the hybrid action. See Vaca, 386

U.S. 171, 188 (1967). Courts have interpreted Vaca

and its progeny to stand for the proposition that

LMRA Section 301, 29 U.S.C. § 1985, provides federal

jurisdiction for hybrid actions asserting Section

301/fair representation claims. See Tamburello v.

Comm-Tract Corp., 67 F.3d 973, 979 (1st Cir. 1995)

(plaintiff “brought his fair representation allegations

as part of a ‘hybrid’ action under § 301, which pro-

vides federal jurisdiction for employees to sue their

employer for breach of a collective bargaining agree-

ment, and their union for breach of its duty of fair

representation”); Coleman v. General Mills, 1994 WL

696116 (6th Cir. 1994) (claim “may be construed as a

‘hybrid’ action filed against the company and against

the union under § 301 of the LMRA, over which the

federal courts have proper jurisdiction”); Talbot v.

Robert Matthews Distributing Co., 961 F.2d 654, 663

(7th Cir. 1992) (“Section 301 provides federal jurisdic-

tion for employees to sue their employer for breach of

a collective bargaining agreement and their union for

breach of its duty of fair representation”); Cannon uv.

Kroger Co., 837 F.2d 660, 661 (4th Cir. 1988) (“a

typical hybrid action under § 301 of the Labor Man-

agement Relations Act ..., although federal in

nature, may be commenced and prosecuted in either

federal district court or in state court”). For this

reason, to the extent that State Defendant may be

arguing that there is no federal jurisdiction under

Section 301 for hybrid claims against employers in

general, such an argument fails. See 29 U.S.C. § 185.

App. 9

B. Jurisdiction over the Hybrid Action

Claim Against State Defendant under

the LMRA

LMRA Section 301(a), 29 U.S.C. § 185(a), pro-

vides federal district courts with jurisdiction for suits

alleging “violation of contracts between an employer

and a labor organization.” State Defendant argues

that it is not an “employer” within the meaning of the

LMRA. See Motion to Dismiss at 3-4.

The LMRA excludes states and their political

subdivisions from its definition of “employer.” 29

U.S.C. § 152(2) provides:

The term “employer” includes any person

acting as an agent of an employer, directly or

indirectly, but shall not include the United

States or any wholly owned Government cor-

poration, or any Federal Reserve Bank, or

any State or political subdivision thereof ...

or any labor organization (other than when

acting as an employer), or anyone acting in

the capacity of officer or agent of such labor

organization.

The general definition section for the LMRA, at

29 U.S.C. § 142(3), provides that the terms “em-

ployer,” “employee,” and “labor organization,” (among

others) shall have the same definitions when used

elsewhere in the LMRA as those terms are given in

App. 10

29 U.S.C. § 152, which is quoted above.’ See 29 U.S.C.

§§ 142, 152; see also Ayres v. Intl Brotherhood of

Electrical Workers, 666 F.2d 441, 442-444 (9th Cir.

1982) (analyzing the relationship between the sub-

chapters of the LMRA and determining that the

definition of “employer” contained at 29 U.S.C.

§ 152(2) applies to the term as it is used in 29 U.S.C.

§ 185(a)).

Thus, 29 U.S.C. § 185(a) does not grant this

Court jurisdiction over claims against an individual

employed by a political subdivision of the State of

Hawaii. See 29 U.S.C. §§ 142, 152; Ayres, 666 F.2d at

444 (“section 301(a) of the Act, 29 U.S.C. § 185(a),

does not grant this court jurisdiction over the claims

of an individual employed by a political subdivision of

a state”). The fact that Plaintiff brings the action

against its employer under 29 U.S.C. § 185 as part of

a hybrid action does not somehow create jurisdiction

in this Court. See, e.g., Ayres, 666 F.2d 441 (dismiss-

ing hybrid action against employer and union for lack

of jurisdiction where employer was political subdivi-

sion of the state); Jacobs v. Ohio Valley Regional

Transportation Authority, 636 F.Supp. 841 (N.D. W.

Va. 1986) (same). Plaintiff has cited no cases finding

* 29 U.S.C. § 142 states in part: “When used in this chapter

— The terms ‘commerce’, ‘labor disputes’, ‘employer’, ‘employee’,

‘labor organization’, ‘representative’, ‘person’, and ‘supervisor’

shall have the same meaning as when used in subchapter II of

this chapter.” See 29 U.S.C. § 142(3). The definitions for sub-

chapter II are contained in 29 U.S.C. § 152. See 29 U.S.C. § 152.

App. 11

jurisdiction over a state employer under the LMRA,

in a hybrid case or otherwise.”

State Defendant, the Department of Human

Services of the State of Hawaii, is a political subdivi-

sion of the State of Hawaii. See H.R.S. § 26(4) (estab-

lishing the Department of Human Services); see also

N.L.R.B. v. Natural Gas Utility District of Hawkins

County, Tennessee, 402 U.S. 600, 604-605 (1971)

(noting that the term “political subdivision” in 29

U.S.C. § 152(2) is not defined by the statute, but that

Congress intended the political subdivision exception

to exempt state employees since they did not usually

enjoy the right to strike; approving the NLRB’s two-

prong test for “political subdivision” to include “enti-

ties that are either (1) created directly by the state, so

as to constitute departments or administrative arms

of the government, or (2) administered by individuals

who are responsible to public officials or to the gen-

eral electorate”); Museum Associates v. N.L.R.B., 688

F.2d 1278, 1280 (9th Cir. 1982) (recognizing NLRB’s

two-prong construction of “political subdivision” as it

is used in 29 U.S.C. § 152(2)). Accordingly, Section

301.29 U.S.C. § 185, does not provide this Court with

jurisdiction over Plaintiff’s hybrid action claim

against State Defendant.

* Vaca does not address the issue of whether federal

jurisdiction exists where the employer is a state or political

subdivision thereof because Vaca did not involve a state «m-

ployer. See Vaca, 386 U.S. 171, 173 (plaintiff sued union but not

employer; employer was a private company).

App. 12

Nor does this Court have jurisdiction over Plain-

tiff’s hybrid action claim against State Defendant

pursuant to 29 U.S.C. §§ 158 or 187. First, 29 U.S.C.

§ 158 itself does not contain any grant of federal

jurisdiction. See 29 U.S.C. § 158 (describing unfair

labor practices). Second, the grant of federal! jurisdic-

tion contained in 29 U.S.C. § 187 is “subject to the

limitations and provisions of section 185.” See 29

U.S.C. § 187(b). The limitations and provisions of 29

U.S.C. § 185, as discussed, except from jurisdiction in

this Court claims against employers who are political

subdivisions of a state. See 29 U.S.C. §§ 142, 152, 185.

For these reasons, the Court lacks jurisdiction

over Plaintiff’s hybrid action claim against State

Defendant.

C. Jurisdiction over the Hybrid Action

Claim Against the Union under the

LMRA

The Union argues that the Court lacks jurisdic-

tion over the hybrid action claim against it because,

just as State Defendant is not an “employer” under

the LMRA, the Union argues that it is not a “labor

organization” and Plaintiff is not an “employee.” See

Joinder at 2. The Court agrees for the same reasons

as discussed with respect to State Defendant.

The deSinitions of “employer,” “employee,” and

“labor organization” contained in 29 U.S.C. § 152

apply to 29 U.S.C. § 185. See 29 U.S.C. §§ 142, 152,

185; Ayres, 666 F.2d at 442-444. “Employee” does “not

App. 13

include ... any individual employed ... by any...

person who is not an employer as herein defined.” See

29 U.S.C. § 152(3). “Employer” does “not include ...

any State or political subdivision thereof.” See 29

U.S.C. § 152(2). “Labor organization” is defined (in

part) as “any organization ... in which employees

participate and which exists for the purpose ... of

dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours of employment, or

conditions of work.” See 29 U.S.C. § 152(5) (emphasis

added). Thus, “[b]ly the plain, unambiguous language

of the LMRA, the definition of ‘labor organization’

excludes an organization of employees of a political

subdivision of a state.” See Pacific Maritime Ass’n v.

Local 63, Int’l Longshoremen’s and Warehousemen’s

Union, 198 F.3d 1078, 1081 (9th Cir. 1999).

Since Plaintiff is not an “employee,” State Defen-

dant is not an “employer,” and the Union is not a

“labor organization” under the LMRA, 29 U.S.C.

§ 185 does not give this Court jurisdiction over the

hybrid action claim against the Union. See Ayres, 666

F.2d at 444 (in a hybrid action against employer and

union, holding that “section 301(a) of the Act, 29

U.S.C. § 185(a), does not grant this court jurisdiction

over the claims of an individual employed by a politi-

cal subdivision of a state”); Jacobs, 636 F.Supp. at 843

(in hybrid action against the employer and union

where employer is a political subdivision of the state,

holding that 29 U.S.C. § 185(a) does not provide

federal jurisdiction). Nor do 29 U.S.C. §§ 158 or 187

give this Court jurisdiction over the hybrid action

App. 14

claim against the Union, for the same reasons as

discussed with respect to State Defendants. See,

supra, § IB; see also Pacific Maritime Ass’n, 198 F.3d

at 1083 (analyzing effect of LMRA definitions on 29

U.S.C. §§ 158 and 187 and finding no federal district

court jurisdiction for claim under 29 U.S.C. § 187

against labor organization of public sector employ-

ees).

For these reasons, the Court lacks jurisdiction

over Plaintiff’s hybrid action claim against the Un-

ion.

Il. Whistleblower Claim against State Defen-

dant

In addition te the hybrid action claim alleged

against both defendants, the Complaint alleges that

State Defendant “violated the Hawaii Whistleblowers’

Protection Act contained in H.R.S. § 378-61, et seq.”

See Complaint at 9. Plaintiff alleges that the Court

has jurisdiction over this claim pursuant to its sup-

plemental jurisdiction under 28 U.S.C. § 1367. See

Opposition at 6. However, because the Court has

found that it does not have jurisdiction over the

hybrid action claim, there are no “claims in [this]

action within [the Court’s] original jurisdiction.” See

28 U.S.C. § 1367(a); see also Kelly v. Fleetwood Enter-

prises, Inc., 377 F.3d 1034, 1040 (9th Cir. 2004).

Therefore, the Court lacks subject matter jurisdiction

over the whistleblower claim. See Kelly, 377 F.3d at

1040 (finding no supplemental jurisdiction over state

App. 15

law claim where underlying claims were dismissed

for lack of jurisdiction); see also United Mine Workers

of America v. Gibbs, 383 U.S. 715, 725 (1966) (“Cer-

tainly, if the federal claims are dismissed before trial,

even though not insubstantial in a jurisdictional

sense, the state claims should be dismissed as well.”).

Accordingly, the whistleblower claim is dismissed

for lack of jurisdiction.* Plaintiff may pursue adjudi-

cation of that claim in state court.

CONCLUSION

The Court grants the Motion to Dismiss. The

Complaint is dismissed without prejudice in its

entirety for lack of subject matter jurisdiction.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, March 18, 2006.

/s/ Alan C. Kay

[SEAL] Alan C. Kay

Sr. United States

District Judge

° The Court_declines to reach the issue of sovereign immu-

nity since it finds that it lacks subject matter jurisdiction over

Plaintiff’s claims. See Motion to Dismiss at 7-8 (arguing that

State Defendant is immune from suit in federal court for “any

state claims” contained in the Complaint, pursuant to the

Eleventh Amendment to the U.S. Constitution).

App. 16

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

LINDA K. HADLEY

Plaintiff(s),

V. JUDGMENT IN A

HAWAII GOVERNMENT CIVIL CASE

EMPLOYEES’ ASSOCIATION, Case: CV 05-00660

AFSCME, LOCAL 152, ACK-KSC

AFL-CIO; STATE OF

HAWAII, DEPT. OF HUMAN

SERVICES

Defendant(s).

(Filed Mar. 14, 2006)

[ ] Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

{[“] Decision by Court. This action came for consid-

eration before the Court. The issues have been

considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that the

Complaint is dismissed without prejudice in its

entirety for lack of subject matter jurisdiction,

pursuant to the “Order Granting Motion to Dis-

miss”, filed March 13, 2006.

cc: all counsel

App. 17

March 14, 2006 /s/ SUE BEITIA

Date Clerk

/s/ (Illegible]

(By) Deputy Clerk

App. 18

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LINDA es —e No. 06-15642

Plaintiff-Appellant, D.C. No.

. CV-05-00660-ACK

HAWAII GOVERNMENT District of Hawaii,

EMPLOYEES’ ASSOCIA- Honolulu

TION, AFSCME LOCAL ORDER

152 AFL-CIO, 7

Defendant-Appeilee. (Filed Jul. 10, 2008)

Before: RYMER, RAWLINSON, and CALLAHAN,

Circuit Judges.

The panel has voted to deny the petition for

rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge of the court has

requested a vote.

The Petition for Rehearing En Banc filed on June

12, 2008, is DENIED.