O'Halloran v. University of Washington

• Decision Date: 08 September 1988
• Docket Number: Nos. 88-3565,88-3676,s. 88-3565
• Citation: 856 F.2d 1375
• Parties: 49 Ed. Law Rep. 77 Elizabeth O'HALLORAN, Plaintiff-Appellant, v. UNIVERSITY OF WASHINGTON, et al., Defendant-third-party-plaintiff-Appellee, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Third-party-defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1375

856 F.2d 1375

49 Ed. Law Rep. 77

Elizabeth O'HALLORAN, Plaintiff-Appellant, v. UNIVERSITY OF WASHINGTON, et al., Defendant-third-party-plaintiff-Appellee, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Third-party-defendant.

Nos. 88-3565, 88-3676.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 1, 1988.

Decided Sept. 8, 1988.

David C. Tarshes, Davis, Wright & Jones, Seattle, Wash., for plaintiff-appellant.

Carol Sundquist Niccolls, Asst. Atty. Gen., Seattle, Wash., for defendant-third-party-plaintiff-appellee.

Don Paul Badgley, Bogle & Gates, Seattle, Wash., forthird-party-defendant.

Appeal from the United States District Court for the Western District of Washington (Seattle).

Before KOELSCH, ALARCON and BEEZER, Circuit Judges.

ALARCON, Circuit Judge:

In this appeal, we must decide whether the district court erred when it denied a motion to remand the action to state court.

I

The University of Washington is a member of the National Collegiate Athletic Association (NCAA), an unincorporated association whose members are public and private colleges and universities. The NCAA regulates participation in intercollegiate sports.

As a condition of membership in the NCAA, the University of Washington agreed "[t]o administer their athletics programs in accordance with the Constitution, the Bylaws and other legislation of the Association." NCAA Const., art. IV, Sec. 2(a). The NCAA Constitution also states that if a student athlete is ineligible under the NCAA requirements, the member school must withhold that athlete from all intercollegiate competition. NCAA Const., art. IV, 0.I.11. If the member school does not withhold the ineligible student from competition, the school is subject to NCAA enforcement proceedings and may be expelled from the NCAA. NCAA Const., art. II, Sec. 2(b).

The NCAA requires that a student athlete sign a statement in which the athlete consents to be tested for the use of drugs prohibited by NCAA legislation. NCAA Const., art. III, Sec. 9(i). The statement must be signed annually, prior to competition in intercollegiate athletics during the academic year in question. Id. Failure to sign the consent form renders a student athlete ineligible for intercollegiate competition. Id.

Elizabeth O'Halloran is a student at the University of Washington and a member of the University's track and cross-country teams. On May 22, 1987, O'Halloran filed a complaint against the University in Washington's King County Superior Court. The complaint sought injunctive and declaratory relief prohibiting the University from enforcing its own drug testing program and from prohibiting students from participating in intercollegiate competition if they refused to sign the NCAA drug testing consent form. The complaint did not name the NCAA as a party.

On July 9, 1987, O'Halloran filed alternative motions for summary judgment and for a preliminary injunction. The motions were directed against enforcement of both the University and NCAA programs. On July 16, 1987, the University of Washington moved to compel joinder of the NCAA as a party. Following oral argument on July 23, 1987, the Superior Court issued an oral ruling that the portion of the University's drug testing program that permitted testing without individualized reasonable suspicion violated the United States and Washington Constitutions. In ruling on the motion to compel joinder, the Superior Court stated that the NCAA program suffered from more constitutional deficiencies than did the University program. The Superior Court issued an order compelling joinder, but ordered that the University, not O'Halloran, join the NCAA because the University is the party that would be harmed by any action taken by the NCAA. The Superior Court said that it would issue a temporary restraining order prohibiting the NCAA from requiring the University to prohibit students who refused to sign drug testing consent forms from competing on University athletic teams. The court signed the temporary restraining order on July 24, 1987 and it expired by its own terms on July 30, 1987. Although the parties met to discuss proposed language for the temporary restraining order, the court did not sign a written order enjoining the University from enforcing the NCAA drug testing program's consent form requirement. The temporary restraining order stated that on July 31, 1987 the NCAA was to appear and show cause why a preliminary injunction should not issue prohibiting it from taking actions against the University when the University allowed students who did not sign the NCAA consent form to compete in intercollegiate events.

On July 27, 1987, the University filed and served a third-party complaint against the NCAA. On July 30, 1987, the NCAA removed the action to the United States District Court for the Western District of Washington. On August 6, 1987, O'Halloran moved to remand the action to state court. On October 9, 1987, the district court denied the motion to remand the action to state court. O'Halloran v. Univ. of Washington, 672 F.Supp. 1380 (W.D.Wash.1987).

On October 15, 1987, O'Halloran moved for the entry of an order encompassing the rulings the Superior Court made prior to removal. On January 15, 1988, the district court denied this motion. The court also dismissed without prejudice the University's third-party complaint against the NCAA because it was premature. Finally, the court ordered O'Halloran to join the NCAA as a defendant.

On January 20, 1988, O'Halloran filed a notice of appeal from the January 15, 1988 order. In this notice of appeal, O'Halloran also appealed the order denying her motion to remand the action to state court. ¹

On January 21, 1988, pursuant to the court's order, O'Halloran filed a Second Amended Complaint, naming the NCAA as a co-defendant, and moved for a preliminary injunction prohibiting the NCAA and the University from not allowing her to compete on its athletic teams because she refused to consent to the University drug testing program and to sign the NCAA drug testing consent form. While this motion was pending, the University dropped its plan to conduct drug testing in the absence of individualized suspicion. As a result, on February 5, 1988, all claims against the University regarding its own drug testing program were dismissed.

On February 25, 1988, the district court denied O'Halloran's motion for a preliminary injunction. O'Halloran v. Univ. of Washington, 679 F.Supp. 997 (W.D.Wash.1988). The court held that the balance of hardships did not tip in O'Halloran's favor. 679 F.Supp. at 1007. The court also found that she was unlikely to succeed on the merits. Id.

On March 2, 1988, O'Halloran appealed from the district court's February 25, 1988 order. The two appeals were consolidated by this court.

II

This court has jurisdiction over the appeals from the denial of the motions for preliminary injunctions pursuant to 28 U.S.C. Sec. 1292(a)(1) (1982).

"Where a motion to remand is denied, the propriety of removal is reviewable on appeal from the final judgment or by interlocutory appeal if the refusal to remand is certified under 28 U.S.C. Sec. 1292(b)." Sheeran v. General Elec. Co., 593 F.2d 93, 97 (9th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). In this case, there is not yet a final judgment and the district court did not certify under 28 U.S.C. Sec. 1292(b) the order denying the motion to remand. However, when an appeal from an order denying a motion to remand is joined with an appeal from an order granting or denying an injunction, we will review the order denying the motion to remand at that time and not wait for final judgment or certification. See Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir.1985) (we will review a refusal to remand at the same time we review the propriety of a preliminary injunction in order to prevent the waste of judicial resources). See also Alligator Co. v. La Chemise LaCoste, 421 U.S. 937, 938, 95 S.Ct. 1666, 1666, 44 L.Ed.2d 94 (1975) (Justice White, dissenting, said that "it would appear that jurisdictional questions should be reviewed at the first available opportunity, and I perceive no good reason for not permitting the removal issue to be raised in connection with an appeal from the denial of a preliminary injunction."); Kysor Indus. Corp. v. Pet, Inc., 459 F.2d 1010, 1011 (6th Cir.) (per curiam), cert. denied, 409 U.S. 980, 93 L.Ed.2d 314, 34 L.Ed.2d 243 (1972) (noting that, although the court must usually wait until an appeal from final judgment to review the denial of a motion to remand, it would not wait in this case because the plaintiff was also appealing the denial of a motion for a preliminary injunction and that issue was properly before the appellate court); Mayflower Indus. v. Thor Corp., 184 F.2d 537, 538 (3d Cir.1950) ("[a]lthough the denial of a motion to remand itself would not support an interlocutory appeal, the question of removability is jurisdictional and therefore is before us for consideration once it appears that the case is properly here for review of an appealable order."), cert. denied, 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342 (1951).

III

The NCAA argues that because O'Halloran filed a Second Amended Complaint in federal court, realigning the NCAA as a defendant and alleging federal law violations, her appeal from the order denying remand is now moot. According to the NCAA, because the federal court clearly has jurisdiction over O'Halloran's claims against them at this time her "first appeal should be dismissed as moot."

O'Halloran filed her Second Amended Complaint on January 21, 1988, after the district court ordered her to realign the NCAA as a defendant. In the amended complaint, O'Halloran expressly stated that she "reserves her objections to the court's jurisdiction." She contends that she had filed both a motion for certification of the remand issue for appeal and a notice...