Karahalios v. Defense Language Institute/Foreign Language Center Presidio of Monterey, s. 85-1602

Citation821 F.2d 1389
Decision Date13 July 1987
Docket Number85-1626,86-2006,Nos. 85-1602,s. 85-1602
Parties125 L.R.R.M. (BNA) 3175 Efthimios A. KARAHALIOS, Plaintiff-Appellee/Cross-Appellant. v. DEFENSE LANGUAGE INSTITUTE/FOREIGN LANGUAGE CENTER PRESIDIO OF MONTEREY, Defendant. Local 1263, National Federation of Federal Employees, Defendant- Appellant/Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Thomas R. Duffy, and Richard De Stefano, Beverly Hills, Cal., for plaintiff-appellee/cross-appellant.

Patrick J. Riley, Washington, D.C., for defendant-appellant/cross-appellee.

Stuart A. Kirsch, College Park, for amicus curae.

Appeal from the United States District Court for the Northern District of California.

Before HUG, NELSON and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Efthimios A. Karahalios brought suit against the Defense Language Institute/Foreign Language Center Presidio of Monterey (DLI) and Local 1263, National Federation of Federal Employees (the Union). The original incident occurred in 1976. The suit against DLI has been settled. Karahalios and the Union both appeal from the judgment of the district court. The case presents a question of first impression in this circuit as to whether a district court has jurisdiction to entertain an action by a federal employee against his union. Holding jurisdiction does not exist, we reverse.

FACTS AND PROCEEDINGS

In 1976 Karahalios was a Greek language instructor at DLI when a higher position, "Course Developer," was reopened. This position had been held by Simon Kuntelos, who had been demoted to instructor when the position had been closed. Kuntelos believed he was entitled to non-competitive promotion back to his old job and declined to participate in the competitive examination required by DLI. Karahalios took the examination and was made course developer.

Kuntelos complained to the Union which, without telling Karahalios, brought a grievance on Kuntelos's behalf. As a result, an arbitrator decided that Kuntelos should be considered. Kuntelos then took the examination, was given substantially more time to complete it than had been afforded Karahalios, and received a grade of 83 as compared to Karahalios' 81. Kuntelos was appointed course developer and Karahalios was demoted. Kuntelos' success was short-lived, however: he was appointed in May 1978, and the position was dropped in October 1979.

Karahalios objected to his demotion and filed grievances with DLI which were denied. The Union refused to take his grievances to arbitration on the ground that, since it had represented Kuntelos, it had a conflict of interest. Karahalios then filed unfair labor practice charges with the Federal Labor Relations Authority (FLRA). FLRA's General Counsel ruled that the Union had violated its duty and ordered a complaint issued against the Union. But the Union and the regional director of the FLRA settled, with the Union simply agreeing that in the future it would not Karahalios then filed suit in the district court against both DLI and the Union, alleging that DLI had breached the collective bargaining agreement and that the Union had breached its duty of fair representation. In the first of its three published opinions in this case, the district court held that, while it lacked jurisdiction over the claim against DLI, Karahalios' claim against the Union posed a federal question and the FLRA's jurisdiction was not exclusive. Karahalios v. Defense Language Inst., 534 F.Supp. 1202, 1208 (N.D.Cal.1982) (Karahalios I.). The court relied on Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The court noted that, just as the NLRB was more concerned with broad questions of policy than with individual rights, so was the FLRA. The court declared, "Plaintiff, then, lacks an adequate administrative remedy as did the petitioner in Vaca v. Sipes." Karahalios I, 534 F.Supp. at 1208.

inform employees that it could not represent more than one employee seeking the same position. Karahalios derived no benefits from the settlement, which he unsuccessfully appealed to the General Counsel.

Karahalios II held that the court would not assume pendent jurisdiction over Karahalios' claim against DLI for breach of the collective bargaining agreement. Karahalios v. Defense Language Inst., 544 F.Supp. 77, 78 (N.D.Cal.1982). Karahalios III found that the Union had breached its duty of fair representation by (1) deciding to arbitrate on behalf of Kuntelos without consultation with Karahalios, (2) failing to notify Karahalios of the arbitration, and (3) refusing to arbitrate for Karahalios without considering the merits of his claim. Karahalios v. Defense Language Inst., 613 F.Supp. 440, 446-47 (N.D.Cal.1984). The court further held that it could not determine Karahalios' damages because he and Kuntelos "were simply too evenly matched for the court to find that plaintiff had a clear edge." Id. at 449. The court did award Karahalios attorney's fees of $35,000 on the theory that the Union's breach of duty had caused Karahalios to litigate and on the further theory that Karahalios' suit had been of benefit to the Union and all its members. Id. at 449-51.

The Union appeals the rulings against it; Karahalios appeals the denial of damages.

ANALYSIS

Several issues are presented by the appeal, but the jurisdictional issue is dispositive. As the issue is one of law, we review de novo. South Delta Water Agency v. Department of Interior, 767 F.2d 531, 535 (9th Cir.1985). On the question of jurisdiction there is a present split of authority. Compare Pham v. American Fed'n of Gov't Employees, Local 916, 799 F.2d 634 (10th Cir.1986) with Warren v. Local 1759 Am. Fed'n of Gov't Employees, 764 F.2d 1395, 1399 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 527, 88 L.Ed.2d 459 (1985). Resolution of the conflict depends on interpretation of the Title VII of the Civil Service Reform Act of 1978, (CSRA) 5 U.S.C. Secs. 7101-7135, in the light of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1976) and other statutes enacted by Congress dealing with the rights of employees and unions.

Interpreting the Labor Management Relations Act, the Supreme Court in Vaca held that where a union arbitrarily refused to process a grievance, the injured employee had a right to sue the union in the district court. The Court refused to believe that Congress intended to confer upon unions "unlimited discretion to deprive injured employees of all remedies for breach of contract." 386 U.S. at 186, 87 S.Ct. at 914. The Court bolstered its reasoning by pointing to the possibility of actions in the district court under Sec. 301 and Sec. 303 of the Labor Management Relations Act (29 U.S.C. Secs. 185, 187). Congress, the Court noted, had not meant to give the NLRB exclusive jurisdiction. Id. at 179, 87 S.Ct. at 911.

There is no statutory provision analogous to Sec. 301 or Sec. 303 under the CSRA, and as there has been no waiver of immunity by the United States, the government could not be sued by a federal employee. But this difference alone would not justify us in concluding that the basic rationale of Vaca does not speak here. In the absence of other indication of congressional intent, we would hold here, too, that Congress has not intended to confer upon unions unlimited discretion.

When Congress enacted the CSRA the federal courts had implied a duty of fair representation not only under the National Labor Relations Act as in Vaca, but also under the Railway Labor Act. Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed....

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