Rodgers v. MM&P

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 1, 1995
• Docket: 95-30160
• Status: Unpublished

Opinion

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 Pursuant to that Rule, the court has determined that this opinion should not be published.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).

- 2 - 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.

- 3 - 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

- 4 - 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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