Hanna Boys Center v. Miller
| Decision Date | 01 August 1988 |
| Docket Number | No. 88-1756,D,AFL-CI,88-1756 |
| Citation | 853 F.2d 682 |
| Parties | 129 L.R.R.M. (BNA) 2082, 109 Lab.Cas. P 10,647, 48 Ed. Law Rep. 376 HANNA BOYS CENTER, Plaintiff-Appellant, v. Robert H. MILLER; Donald L. Dotson; Wilford W. Johansen; James M. Stevens; Marshall B. Babson; Mary Miller Cracraft; National Labor Relations Board, Defendants-Appellees, and Social Services Union Local 535, Service Employees International Union,efendant-Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George J. Tichy, II, Patricia A. Shepherd and Beth E. Aspedon, Litler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for plaintiff-appellant.
Abby Propis Simms, and Eric G. Moskowitz, Deputy Asst. General Counsel for Special Litigation, Washington, D.C., for defendants-appellees.
Vincent A. Harrington, Jr., Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for defendant-intervenor-appellee.
Appeal from the United States District Court for the Northern District of California.
Before ALDISERT, * ALARCON and HALL, Circuit Judges.
Plaintiff-appellant Hanna Boys Center ("Center") appeals from the district court's dismissal of its complaint for want of subject matter jurisdiction. Although the courts are generally prohibited from reviewing NLRB proceedings under section 9 of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 159, the Center claims that the district court should have exercised jurisdiction pursuant to two judge-made exceptions: (1) Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), and (2) Fay v. Douds, 172 F.2d 720 (2d Cir.1949). The Center also contends that this court should grant its request for declaratory and injunctive relief.
Defendant-appellee the National Labor Relations Board ("NLRB" or "Board") contends that neither exception applies to the instant case. Moreover, the NLRB and intervenor Social Services Union, Local 535, Services Employees International Union, AFL-CIO ("Local 535"), argue that a prior panel's implicit determination of subject matter jurisdiction constitutes the law of the case and therefore precludes this appeal. Finally, the NLRB and Local 535 assert that sanctions under Fed.R.App.P. 38 should be imposed against the Center for bringing a frivolous appeal.
This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.
The pertinent facts, briefly stated, are as follows. Hanna Boys Center is a residential, year-round school located in Sonoma County, California. It was founded in 1945 as a non-profit, charitable institution by two Roman Catholic priests under the auspices of the Archdiocese of San Francisco. It currently operates under the supervision and control of the Roman Catholic Diocese of Santa Rosa. The Center is organized pursuant to California's Nonprofit Religious Corporation Law, Cal.Corp.Code Secs. 9110-9690 (West Supp.1988), and enjoys state and federal tax exempt status.
The Center provides fourth grade through tenth grade educations for boys between the ages of nine and eighteen. The Center's Mission Statement states its purpose:
Hanna Boys Center offers a temporary home in which a troubled boy is given the opportunity to live with adults and peers in an environment which is caring, consistent, and disciplined. At the Center, he experiences an individualized school program, guided group interaction with his peers, individual and group counseling for himself and his family, and religious values, so that he may learn the skills and values which will help him grow into a mature and productive member of society.
On September 24, 1980 Social Services Union, Local 535, filed a representation petition with Region 20 of the NLRB to obtain an election to determine whether it would represent two units within the Center: Unit "A", which consisted of "[a]ll full-time and regular part-time child-care workers, recreation assistants, cooks, cooks [sic] helpers, and maintenance employees including plumbers, electricians, gardeners, and custodians employed by the Employer at its Sonoma, California location; excluding all other employees, professional employees, priests, nuns, and religious brothers, guards and supervisors as defined in the Act;" and Unit "B", consisting of "[a]ll office clerical employees employed by the Employer at its Sonoma, California location; excluding all other employees, professional employees, confidential employees, priests, nuns, and religious brothers, guards and supervisors as defined in the Act." Hanna Boys Center v. Social Services Union Local 535, SEIU, AFL-CIO, 284 N.L.R.B. No. 121 at 1 (July 17, 1987).
The Acting Regional Director of Region 20 issued a direction of elections in the two units.
"In directing the elections, the Acting Regional Director found, inter alia, that neither the Supreme Court's decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), nor the religion clauses of the first amendment to the U.S. Constitution precluded the Board from asserting jurisdiction in this proceeding because the Employer, in the Acting Regional Director's view, was not a 'church operated' school."
Id. The Center challenged the NLRB's jurisdiction on the ground that it was a church-operated school and therefore is exempt from the NLRA under the Supreme Court's decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979).
The NLRB held three days of hearings on the Center's challenge in the fall of 1980. An election was held in the two units on March 18, 1981, but the ballots were impounded pending the Board's decision. On July 17, 1987 the Board issued its decision upholding its jurisdiction over the Center. The NLRB found that its assertion of jurisdiction over the Center was consistent with the NLRA, although it disagreed with the Acting Regional Director's conclusion that jurisdiction could be founded on the basis that the Center was not a church-operated school. The NLRB distinguished Catholic Bishop, finding that, unlike Catholic Bishop, the Board was not attempting to assert jurisdiction over teachers. The NLRB noted that "[w]ith the exception of child-care workers, the record is silent with respect to how [the employees Local 535 sought to represent] are in any way connected to the possible religious mission of the Center." Hanna Boys Center, 284 N.L.R.B. No. 121 at 9. Further, the Board concluded that the Center's child-care workers were not the equivalent of teachers. Id. at 9-10. The Center sought reconsideration of the NLRB's decision and its motion was denied.
On November 20, 1987 the Center filed a request for a temporary restraining order, a complaint for injunctive and declaratory relief, and supporting documents in the district court. The complaint alleged that the NLRB's assertion of jurisdiction over it was contrary to the NLRA, as the Supreme Court had interpreted it in Catholic Bishop, and violated the free exercise and establishment clauses of the first amendment. The Center asserted two bases for subject matter jurisdiction: Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (), and Fay v. Douds, 172 F.2d 720 (2d Cir.1949) ().
Although the Center did not seek such relief, on December 2, 1987 the district court granted a ninety-day stay to allow the NLRB to supplement the record. The district court's concern was that, because of the six and one-half years between the hearings and its decision, the NLRB did not have the current facts before it when it decided the case. Specifically, the district court was concerned that Father Crews's affidavit submitted with the Center's federal complaint was not before the NLRB when it ruled that the Center's child-care workers were not the equivalent of teachers.
The NLRB appealed the district court's stay order, and moved this court for a summary reversal. We ruled in a one-sentence order that "Appellant the National Labor Relations Board's Motion for summary reversal is granted, and the district court's order of December 2, 1987 is vacated." Hanna Boys Center v. Miller, No. 87-15083, unpublished order (9th Cir. Feb. 22, 1988). Four days after this court granted the NLRB's motion, the district court dismissed the Center's complaint for want of subject matter jurisdiction.
We review de novo a district court's dismissal of an action for lack of subject matter jurisdiction. McIntyre v. McIntyre, 771 F.2d 1316, 1317 (9th Cir.1985). We conclude that the motions panel's order is law of the case on the question of subject matter jurisdiction over the Center's complaint.
Although the motions panel's order did not explicitly state that it granted the motion because the district court lacked subject matter jurisdiction, it necessarily did so by implication. The issue presented in the motion papers on appeal was the district court's lack of subject matter jurisdiction over the entire case, not just whether the district court had the power to grant a stay. Further, it is apparent that the district court interpreted the motions panel's order to preclude subject matter jurisdiction. Four days after the motions panel issued its order, the district court held a hearing to determine the meaning of the motions panel's order and dismissed the Center's complaint for want of subject matter jurisdiction.
Of course, a court of appeals may rely on any ground fairly supported by the record. See, e.g., Beezley v. Fremont Indemnity Co., 804 F.2d 530 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1610, 94 L.Ed.2d 796 (1987). The record before the motions panel, however, contained the motion papers, the district...
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