Rodgers v. MM&P ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-30160
Summary Calendar
_____________________
FRANK W. RODGERS, MARY BETH O'BRIEN, AUGUSTUS MARKRIS,
Plaintiffs-Appellants,
VERSUS
INTERNATIONAL ORGANIZATION OF
MASTERS, MATES AND PILOTS, ET AL.,
Defendants-Appellees.
____________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA-94-3592-D-5)
_____________________________________________________
(July 11, 1995)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Frank Rodgers, Mary Beth O'Brien, and Augustus Markris,
members of the International Organization of Masters, Mates and
Pilots (MM&P), initiated this action against the MM&P and its
officials, claiming violations of the MM&P rules and procedures
regarding membership rights and privileges. The district court
dismissed the action, because the three members failed to exhaust
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
internal, organizational procedures for the resolution of their
complaints. We AFFIRM.
I.
The three members contend that after they paid the MM&P's
initiation fee and received full membership, the organization
demanded an additional payment. As a result of their failure to
pay the additional fee, the organization classified them in a less
desirable shipping status. Claiming that the action of the MM&P
violated their rights and privileges of union membership, the three
members initiated this action. Pursuant to FED R. CIV. P. 12(b)(1),
the district court dismissed this action for lack of jurisdiction,
because the three members failed to exhaust the internal
organizational procedures for dispute resolution as required by §
101(a)(4) of the Labor-Management Reporting and Disclosure Act
(LMRDA), 29 U.S.C. § 411(a)(4).
II.
Because the establishment of a basis for the
exercise of subject matter jurisdiction is the sine
qua non of federal litigation, ... it is the party
who urges jurisdiction upon the court who must
always bear the burden of demonstrating that the
case is one which is properly before the federal
tribunal.
B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981).
Furthermore, we review only for clear error a district court's
factual findings on the issue of subject matter jurisdiction.
E.g., Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert.
denied, 454 U.S. 897 (1981).
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The LMRDA provides, in pertinent part:
No labor organization shall limit the right of any
member thereof to institute an action in any court,
or in a proceeding before any administrative
agency, ...: Provided, That any such member may be
required to exhaust reasonable hearing procedures
(but not to exceed a four-month lapse of time)
within such organization, before instituting legal
or administrative proceedings against such
organizations or any officer thereof ....
29 U.S.C. § 411(a)(4).2 This subsection "does not establish a
jurisdictional bar or absolute waiver to judicial review, but
preserves the discretionary exhaustion doctrine which allowed pre-
LMRDA courts to determine whether pursuit of internal remedies
should be required in a given case." Fulton Lodge No. 2 of the
Int'l Ass'n of Machinists & Aerospace Workers v. Nix, 415 F.2d 212,
216 (5th Cir. 1969). Thus, the district court's decision on
whether a union member must exhaust his internal remedies is
reviewed for an abuse of discretion.
The three members contend that the MM&P constitution fails to
provide any guidelines or appellate procedures for pursuing a
grievance. Additionally, O'Brien and Markris contend that their
grievances were initiated more than four months before initiating
this action.3
No party challenges the district court's finding that the MM&P
constitution fails to set forth the internal procedures available
2
The MM&P constitution contains language similar to that in the
LMDRA.
3
As for Rodgers, the declaration is made that he was at sea at
the time the MM&P filed its motion to dismiss, and that his
attorney was unable to obtain an affidavit in a timely manner.
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to aggrieved members. The three members maintain, however, that
the vagueness or uncertainty of the constitution alone negates any
obligation they have to exhaust the internal organizational
remedies. In support, they rely upon Hammons v. Adams, 783 F.2d
597 (5th Cir.), reh'g granted, 786 F.2d 1253 (5th Cir. 1986). As
in the instant case, the constitution in Hammons failed to provide
clear grievance procedures. But, this fact alone did not mandate
reversal of the dismissal. In Hammons, our court declared that
[i]f a grievant inquires in good faith about what
grievance resolution procedures are available, it
is the union's duty to inform him of those
procedures. Where the remedies are vague or
uncertain ... and where the union has not made them
known and available to the grievant, the union
cannot protest that he has failed to exhaust its
internal remedies.
Id. at 604.
The district court found that, notwithstanding the failure of
the MM&P constitution to set forth the grievance procedures, the
three members were made aware of the procedures by a letter from
MM&P's counsel. But, this letter (dated November 9, 1994) was sent
the day after this action was commenced (November 8, 1994). In any
event, the members fail to demonstrate an inquiry on their part
regarding the grievance procedures. Thus, Hammons is not
applicable. The district court recognized that the members "could
have inquired into the necessary procedures".
Alternatively, the three members contend that they had
previously initiated grievances, and that, when they commenced this
action, the grievances had lasted in excess of the statutory four
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month period.4 In support of this contention, O'Brien presented
union correspondence. Apparently, a question arose in February
1989 regarding her status. But, there is no indication that she
initiated grievance procedures when her status was allegedly
changed. With respect to Markris, the only offer he made regarding
the filing of a grievance was an affidavit wherein he states that
he had a conversation with the Gulf Coast assistant to the
president of the MM&P regarding his status. The district court
concluded that these communications were not an exhaustion of
internal procedures, but rather were the underlying facts giving
rise to the alleged violation of which the three members complain.5
In light of the above, this finding is not clearly erroneous.6
III.
For the foregoing reasons, the judgment is
AFFIRMED.
4
As noted supra, Rodgers failed to submit any evidence to the
district court regarding this issue.
5
We are advised by MM&P that, after the district court's entry
of dismissal, the three members filed a grievance with MM&P, and
that it is scheduled to be heard at a meeting of the MM&P General
Executive Board scheduled for June 9, 1995.
6
In their reply briefs, the three members contend that,
independant of § 411(a)(4), the district court had jurisdiction
based on diversity of citizenship. As is well established, we will
not consider issues either raised for the first time on appeal or
first raised in a reply brief.
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